Defense Counsel May Not Have Ex Parte Communications with Treating Physicians Who Are Employees of the Same Physician Practice Group as Defendant
by Dennis E. Merkley
In the case of Aylward v. Settecase, Dr. Settecase was employed by Midwest Physician Group. Plaintiff alleged that Dr. Settecase and Midwest Physician Group failed to diagnose his lung cancer in a timely manner. The appellate court held that Dr. Settecase's attorneys could not communicate ex parte with Midwest Physician Group physicians and other employees who provided medical treatment to plaintiff but were not joined as defendants in the lawsuit. The one issue raised on appeal was whether defense counsel should be permitted to communicate ex parte with Midwest Physician Group employees whose actions were not currently the basis for liability against Midwest Physician Group, but who might be in the future. Plaintiff argued that any ex parte communication with healthcare providers who were not parties to the lawsuit would be a violation of the Petrillo doctrine. Defendants argued that Petrillo was still good case law, but that the supreme court's recent decision in Porter, that relaxed the standard for amending pleadings, should allow defendants' counsel to communicate with Midwest Physician Group employees who provided treatment to plaintiff.
The appellate court reasoned that while Porter could conceivably permit plaintiff to add additional claims against Midwest Physician Group and its employees, plaintiff had not yet done so, and the prejudice defendants alleged they might suffer was purely hypothetical. Further, Porter did not compel the appellate court to depart from the established line of cases protecting the physician-patient privilege and prohibiting ex parte communications with treating healthcare providers. Petrillo and other cases all expressly prohibit a defendant from engaging in ex parte communications with a plaintiff's treating physician whose actions are not a potential basis for liability, even in light of the supreme court's decision in Porter.
The Aylward case deals specifically with physician practice groups and does not apply to hospitals. In Hall v. Flowers, the appellate court was faced with the same issue only involving a hospital instead of a physician practice group. The Hospital Licensing Act specifically carves out an exception to the Petrillo doctrine. Where a patient institutes a legal action against a hospital, the hospital is not a third party with respect to its own medical information which is compiled by the hospital's own caregivers. Section 6.17(b), (d), and (e) of the Hospital Licensing Act permits limited ex parte communications between a hospital's defense counsel and plaintiff's treating healthcare providers who are members of a hospital's medical staff, its agent, or employees.