                                                                             FIFTH DIVISION
                                                                                April 29, 2011


                                          No. 1-10-1939

________________________________________________________________________

                                   IN THE
                       APPELLATE COURT OF ILLINOIS
                          FIRST JUDICIAL DISTRICT
________________________________________________________________________

LEON AYLWARD, JR.,                        )      Appeal from the
                                          )      Circuit Court of
      Plaintiff-Appellee,                 )      Cook County, Illinois,
                                          )      County Department,
                                          )      Law Division.
                                          )
                                          )      No. 2009 L 002558
                                          )
MICHAEL SETTECASE, D.O., et al.,          )     Honorable
                                          )     Diane Larsen,
      Defendants-Appellants.              )     Judge Presiding.
__________________________________________________________________________



       JUSTICE JOSEPH GORDON delivered the judgment of the court, with opinion.
       Presiding Justice Fitzgerald-Smith and Justice Howse concurred in the judgment and
       opinion.

                                          OPINION


       Leon Aylward, Jr. (plaintiff), filed the instant medical malpractice action against

Michael Settecase, D.O. (defendant), and his employer, Midwest Physician Group, Ltd.

(MPG) (collectively, defendants), alleging that they failed to diagnose his lung cancer in a

timely manner. During discovery, MPG sought permission to communicate ex parte with

various members of its staff who were involved in plaintiff's medical treatment while he was
10-1939

a patient at MPG, but who were not named as defendants in plaintiff’s lawsuit. The court

initially granted MPG's request but later reversed its decision by granting plaintiff's motion

to reconsider and prohibited MPG from engaging in any such contact. Defendants moved

for and the trial court certified a question pursuant to Illinois Supreme Court Rule 308. Ill. S.

Ct. R. 308 (eff. Feb. 26, 2010).



                                      I. BACKGROUND



        The following facts are not in dispute. Defendant is employed by MPG and formerly

was plaintiff's primary care physician during plaintiff’s time as a patient of MPG. During

plaintiff's tenure as a patient of defendant, he received care and treatment from several MPG

physicians and employees (collectively, MPG employees) who are not joined as defendants

in this action.

        Plaintiff alleges that he contracted lung cancer in September 2005, while he was

being treated by defendant, but there was no diagnosis of that cancer until February 2007.

During that period, plaintiff, a 20 year smoker, allegedly complained to defendant about

chest congestion, chest pain, and wheezing, but defendant did not order a chest X-ray, refer

plaintiff to a pulmonary specialist, or order follow-up visits. This delay is the basis for

plaintiff's claim that defendants negligently failed to diagnose and treat his lung cancer in a

timely manner.

        In his original complaint, plaintiff alleged that MPG “through its agents servants

and/or employees” undertook to render medical care to plaintiff. Pursuant to the Illinois

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Code of Civil Procedure (735 ILCS 5/2-622 (West 2008)), attached to that complaint was the

affidavit of a licensed physician and clinical professor of medicine stating, “If [defendant]

had ordered a chest X-Ray or other imaging study, [plaintiff’s] lung cancer would have been

diagnosed, and the appropriate treatment would have been rendered at that time, which more

likely than not would have prevented or lessened his subsequent injuries.”

          As discovery progressed, counsel for MPG wrote plaintiff’s counsel in October

2009 requesting permission to contact the MPG employees to discuss their treatment of

plaintiff. Plaintiff’s counsel objected to this request on the grounds that they were not parties

to the case, stating “at this time, the only individual defendant to [plaintiff’s] lawsuit is

[defendant]. Consequently we decline to give you permission to speak with [the MPG

employees] regarding the care and treatment of [plaintiff].” In November 2009, defendants

filed a motion for leave to have ex parte communications with the MPG employees. Before

the court issued a decision on that motion, plaintiff amended his complaint, removing the

language “through its agents servants and/or employees” and instead alleged that MPG,

“through the conduct of [defendant], undertook to render care, diagnosis, treatment and other

medical services to [plaintiff] for pecuniary consideration.” Despite the amendment, the trial

court granted defendants’ motion and plaintiff filed a motion to reconsider. The trial court

granted that motion, denying defendants’ request to engage in ex parte communications with

the MPG employees. Defendants then requested a certified question to permit them to file an

interlocutory appeal pursuant to Supreme Court Rule 308, which the trial court granted. That

certified question was:

                “Whether counsel for co-defendant multi-speciality clinic, in a

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                  malpractice action, can communicate ex parte with its

                  employees whose actions may be the basis for liability against

                  the clinic.”



                                           II. ANALYSIS

          Defendants raise one issue on appeal, namely, that their defense counsel should be

permitted to communicate ex parte with the MPG employees whose actions are not currently

the basis for liability against MPG, but may be in the future. They contend that they will be

prejudiced if they are not allowed to do so under the rationale of Porter, which recognizes that

plaintiff could potentially make additional claims of negligence based on the actions of the

MPG employees after the close of discovery but before the commencement of trial. See

Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 360-62 (2008) (holding that a plaintiff

may add a new claim after the statute of limitations period has expired if it bears a

“sufficiently close relationship” to the original).

          Plaintiff, however first contends that this appeal should be dismissed as purely

hypothetical because the events that would lead to the prejudice defendants complain of have

not yet occurred, and second, that established precedent clearly holds that MPG may not

communicate with the MPG employees. As shall be fully discussed below, we do not agree

that this appeal should be dismissed. However, we do agree with plaintiff’s position on the

merits.

          Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010) permits appellate review of

interlocutory orders that involve a question of law as to which there is a substantial ground for

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difference of opinion and where an immediate appeal may materially advance the ultimate

termination of the litigation. We have recognized that if a question certified pursuant to Rule

308(a) “calls for a hypothetical answer with no practical effect, we should refrain from

answering it.” Lawndale Restoration Limited Partnership v. Acordia of Illinois, Inc., 367 Ill.

App. 3d 24, 27 (2006). Similarly, a reviewing court “generally declines to issue advisory

opinions on moot or abstract questions.” In re Commitment of Hernandez, 239 Ill. 2d 195, 201

(2010). Here, this is not the case. Answering this question will have an immediate effect

upon the discovery process by determining whether MPG is permitted to represent the MPG

employees, and thus, its resolution may materially advance the ultimate termination of the

litigation. Accordingly, we will consider the merits of the certified question.

       The foundations of the current doctrine governing a defendant’s ex parte

communications with a plaintiff’s treating physician are articulated in Petrillo v. Syntex

Laboratories, Inc., 148 Ill. App. 3d 581 (1986). In that case, a products liability action,

plaintiffs suffered injuries caused by defendants’ allegedly defective products. Defense

counsel engaged in ex parte communication with a plaintiff’s treating physicians to ascertain

the extent of the plaintiff’s injuries. The physicians’ conduct was not a basis for the

defendants’ liability. The trial court barred defense counsel from continuing to do so and

found him in contempt when he did not comply with that prohibition. On appeal, defense

counsel argued that the plaintiffs waived their physician-patient privilege when they filed suit.

The appellate court disagreed, reasoning that “principles of public policy, obligations created

by confidential and fiduciary relationships, and the ethical responsibilities of modern-day

professionals” prohibit ex parte communications between defense counsel and a plaintiff’s

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treating physician. Petrillo, 148 Ill. App. 3d at 610.

       Subsequent cases, which the parties both agree are controlling, have discussed the

applicability of the Petrillo doctrine to the issue of ex parte communication between a

hospital defendant and its medical professional employees. See Ritter v. Rush-Presbyterian

St. Luke’s Medical Center, 177 Ill. App. 3d 313 (1988); Morgan v. County of Cook, 252 Ill.

App. 3d 947 (1993). In these cases, the appellate court held that while the right of a defendant

hospital to defend itself transcends the physician-patient privilege as to permit it to

communicate with employees for whose conduct the hospital is alleged to be liable, it is

barred from doing so with employees whose actions are not at issue.

       In Ritter, the plaintiff filed a malpractice suit against a hospital after she fell off a

gurney while receiving treatment there. The hospital’s risk manager interviewed the

physicians who treated the plaintiff after her fall, and the plaintiff obtained a protective order

barring the hospital from engaging in further contact with them. Those physicians were not

named as defendants and were not a basis for the hospital’s liability. The hospital disregarded

the order and its attorneys interviewed the physicians prior to trial. The trial court barred the

hospital from calling those physicians and assessed attorney fees, and the hospital appealed,

arguing that Petrillo was inapplicable to the circumstances of the plaintiff’s case. Ritter, 177

Ill. App. 3d at 315-16.

        The appellate court disagreed. It held that while under Petrillo, barring the hospital

from communicating with an employee-physician for whose conduct it was allegedly liable

would effectively prevent it from defending itself, that rationale did not extend to

communications with employees whose conduct is not a basis for liability as provided for in

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the complaint. The court found that in such a situation, the hospital’s right to defend itself did

not justify an abrogation of the physician-patient privilege. Ritter, 177 Ill. App. 3d at 317-18.

        The holding of Ritter was upheld in Testin, where the defendant medical clinic sought

to engage in ex parte communications with its employees, some of whom were named

defendants and some of whom were not. Testin v. Dreyer Medical Clinic, 238 Ill. App. 3d

883, 888 (1992), reversed on other grounds sub nom. Almgren v. Rush-Presbyterian-St.

Luke's Medical Center, 162 Ill. 2d 205 (1994). The hospital argued that because Ritter

permitted it to communicate with its employees for whose conduct it was being held liable, it

should also be allowed to communicate with those whose conduct was not raised as an issue

in the pleadings.

        The appellate court, following Petrillo and Ritter, disagreed. It held that while the

physician-patient privilege did not bar the medical clinic from communicating with the

allegedly negligent physician through whom it may have been vicariously liable, the privilege

still protected the plaintiff from disclosures by the physician-employees whose conduct was

not a basis for a clinic’s potential liability. Testin, 238 Ill. App. 3d at 889.

        Similarly, in Morgan, the plaintiff filed a medical malpractice suit, naming the

hospital, as well as his treating physician, as defendants. During discovery, the hospital’s

attorney engaged in ex parte communications with physicians employed by the hospital who

treated the plaintiff, but whose conduct was not a basis for the hospital’s liability. At trial, the

plaintiff moved to bar the testimony of those physicians because, he claimed, the hospital’s

communications with them violated Petrillo. The trial court agreed and the hospital appealed.

Morgan, 252 Ill. App. 3d at 949. Reversing the trial court’s decision, the appellate court,

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following the decisions of Ritter and Testin, held that if a plaintiff attempts to hold a hospital

liable for the conduct of its own physician-employees, “the defendant hospital is included

within the physician-patient privilege and the patient has impliedly consented to the release of

his medical information to the defendant hospital's attorneys.” Morgan, 252 Ill. App. 3d at

954. The Morgan court went on to hold, however, that Petrillo and its progeny still forbid “ex

parte conferences between defense counsel and plaintiff’s treating physician” when that

physician’s conduct was not a basis for the hospital’s liability. Morgan, 252 Ill. App. 3d at

954.

        Here, the defendants acknowledge that the holdings in these cases “are still good law

and applicable here,” but urge that these holdings must be expanded to allow MPG to engage

in ex parte communications with its employees who are not named as defendants and whose

actions are not a basis for MPG’s liability since they may become a basis for liability in the

future under the liberalized joinder rule articulated in Porter. We disagree.

        In Porter, our supreme court adopted a more relaxed standard for amending pleadings,

allowing a plaintiff to add claims against a defendant that would otherwise be barred by

statutes of limitations, as long as they were substantially related to the original claim. In that

case, the plaintiff sued his doctor and hospital for medical malpractice. Years later, during the

course of discovery, the plaintiff attempted to amend his complaint to include a new claim

against the hospital. The hospital objected, arguing that because the claim was new and

different from the plaintiff’s original claim against it, it was therefore barred by the statute of

limitations. The plaintiff, however, argued that the claim “related back” to the date of the

timely filed complaint and therefore was not barred. Porter, 227 Ill. 2d at 350. Our supreme

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court agreed with the plaintiff, holding that a plaintiff may add a new claim where there exists

a “ ‘sufficiently close relationship’ between the original and new claims, both in temporal

proximity and in the general character of the sets of factual allegations and where the facts are

all part of the events leading up to the originally alleged injury.” Porter v. Decatur Memorial

Hospital, 227 Ill. 2d 343, 359 (2008) (quoting In re Olympia Brewing Co. Securities

Litigation, 612 F. Supp. 1370, 1371-72 (N.D. Ill. 1985)). The court went on to find that

plaintiff’s new claim against the hospital was sufficiently related to his original claims to

allow the amendment. Porter, 227 Ill. 2d at 361.

       We fail to see how the resolution of Porter impacts upon the established precedents of

Ritter and its progeny. While Porter could conceivably permit plaintiff to add additional

claims against MPG, he has not done so yet, and the prejudice defendants allege they may

suffer is purely hypothetical at this time. Moreover, there is no indication that plaintiff is

seeking or will seek to hold MPG liable for the actions of the MPG employees. Plaintiff’s

amended complaint, as well as the attached physician’s report, suggests just the opposite,

namely, that plaintiff intends to hold defendant and MPG liable for defendant’s alleged

negligence. Those documents indicate that defendant’s failure to order a chest X-ray for

plaintiff, not the alleged negligence of the MPG employees, constituted a breach of the

standard of care and caused plaintiff’s alleged injuries. Plaintiff’s amended complaint went

so far as to remove language found in the initial complaint (“through its agents servants

and/or employees”) that would leave open the possibility that any MPG employees other than

defendant were potentially liable for plaintiff’s injuries. The law governing this matter, as

espoused in Petrillo and its progeny, is clear: unless and until the actions of the MPG

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employees are alleged to be a basis for plaintiff’s injuries, MPG cannot engage in ex parte

communications with them. In effect, defendants are asking for unfettered access to

communicate with anyone involved in plaintiff’s treatment based upon the mere speculation

that the conduct of those individuals may, at some later time, be joined as a basis for their

liability. The impact of such an expansion would substantially erode the rationale underlying

Petrillo and its progeny and permit defendants to communicate with essentially anyone,

regardless of privilege. We therefore refuse to attempt to overrule or disregard over two

decades worth of established precedent protecting the sanctity of the physician-patient

privilege in order to afford defendants the opportunity to prepare for claims not yet brought by

plaintiff.

        Furthermore, even if, as defendants suggests, plaintiff does seek to “change the theory

of liability or add allegations through unnamed and undefended providers whose actions now

implicate [MPG] under a different theory” immediately prior to trial, a departure from the

holdings of the Petrillo line of cases would still not be warranted. While plaintiff may seek to

amend his pleadings, it is far from a foregone conclusion that he would be able to do so. See

Bell v. Toluca Coal Co., 272 Ill. 576, 583 (1916) (allowing an amendment to the pleadings

lies within the discretion of the trial court); Loyola Academy v. S&S Roof Maintenance, Inc.,

146 Ill. 2d 263. 273 (1992) (four factors must be considered before a plaintiff is permitted to

add additional claims, including whether the other parties would be prejudiced or surprised by

virtue of the new claim). Moreover, there are numerous safeguards in place to protect

defendants from the kind of prejudice they claim they may suffer, including giving defendants

reasonable time to prepare or even reopening discovery. See Greenberger, Krauss &

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Tenenbaum v. Catalfo, 293 Ill. App. 3d 88, 99 (1997) (plaintiffs were not prejudiced by

defendant’s amendment to the pleadings because the trial court granted them reasonable time

to prepare); Paul H. Schwendener, Inc. v. Larrabee Commons Partners, 338 Ill. App. 3d 19,

32 (2003) (“The amendment of pleadings to state a new claim after the close of discovery

usually requires reopening of discovery.”).

        We do not believe that Porter compels us to depart from the established line of cases

protecting the sanctity of the physician-patient privilege and prohibiting the very type of

conduct defendants now ask us to sanction. Petrillo, Ritter, Testin, and Morgan all expressly

prohibit a defendant such as MPG from engaging in ex parte communications with a

plaintiff’s treating physician whose actions are not a potential basis for the hospital’s liability.

                                       III. CONCLUSION

        For the foregoing reasons, we answer the certified in the negative, and find that

defense counsel may not engage in ex parte communications with the MPG employees.

        Certified question answered.




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