Kendall v. Liesen et al

Filing 73

MEMORANDUM Opinion and Order. Signed by the Honorable Arlander Keys on 9/25/2013. Mailed notice(ac, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENISE KENDALL, Individually
and as Special Administrator
of the ESTATE OF LARRY
KENDALL, deceased,
Plaintiff,
v.
DANIEL LIESEN, M.D., SCHEER
SURGICAL, S.C., EVERETT P.
KIRCH, M.D., and ILLINOIS
GASTROENTEROLOGY GROUP, LLC.,
Defendants.

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No. 13 C 3529

Magistrate Judge Arlander Keys

MEMORANDUM OPINION AND ORDER
On May 17, 2012, Larry Kendall went to the emergency room at
Vista Medical Center in Waukegan, Illinois.

The emergency room

doctor, Dr. Zaman, diagnosed him with “acute cholecystitis” and
recommended immediate surgery.

Dr. Zaman discussed Mr. Kendall’s

case with the on-call surgeon, Dr. Daniel Liesen, and with the
on-call gastroenterologist, Dr. Everett Kirch.

According to the

complaint, both agreed to treat Mr. Kendall, yet neither came to
see him.

Mr. Kendall was admitted to the hospital in the early

morning hours of May 18, 2012, but his condition worsened, and,
by 8:25 that night, he was dead.

His wife sued, alleging two

counts of negligence – one against Dr. Liesen and his employer,
Scheer Surgical, and one against Dr. Kirch and his employer,

Illinois Gastroenterology Group (“IGG”).

The case is before the

Court on several discovery-related motions involving
communications with non-defendant physicians.
The first motion before the Court is a motion filed by Dr.
Kirch and IGG, seeking clarification and guidance regarding
communications with IGG’s president, Dr. Fred Rosenberg.

Counsel

for the defendants want to engage in ex parte communications with
Dr. Rosenberg, who they contend is the managing member and
President of IGG and the decision-maker with respect to the
practice and this lawsuit.

Counsel for the defendants argue that

they should be able to communicate freely with Dr. Rosenberg
concerning IGG’s corporate liability, given that he is
responsible for making decisions on behalf of the group as it
pertains to this litigation.
But Dr. Rosenberg may also be considered a treater here; he
treated Mr. Kendall in May of 2011 – one year before the events
leading to this lawsuit.

And, accordingly, the plaintiff

contends that, under Petrillo v. Syntex Laboratories, 148 Ill.
App. 3d 581, 499 N.E.2d 952 (Ill. App. Ct. 1986), counsel for the
defendants are precluded from communicating ex parte with Dr.
Rosenberg – including obtaining his signature on discovery
responses and presenting him for deposition.
The second motion before the Court is a motion filed by Dr.
Daniel Liesen and Scheer Surgical, seeking leave to engage in ex
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parte communications with Dr. Michael Scheer and Dr. Amit Parikh.
Dr. Scheer is president of Scheer Surgical; he treated Mr.
Kendall in May of 2011.

Dr. Parikh is an employee and agent of

Scheer Surgical; he treated Mr. Kendall on May 18, 2012.

Neither

Dr. Scheer, nor Dr. Parikh has been named as a defendant.

The

parties’ arguments with respect to these doctors are similar to
those raised in the motion filed by IGG.
The third motion before the Court concerns the depositions
of Dr. Scheer and Dr. Parikh, which counsel for the plaintiff has
noticed for September 24th and September 25th respectively.

The

defendants have moved to quash the subpoenas; in the alternative,
they seek a protective order precluding plaintiff’s counsel from
deposing Dr. Scheer concerning anything beyond his treatment of
the plaintiff and precluding the plaintiff from deposing Dr.
Parikh without allowing them to represent him.
All three motions require the Court to consider whether, and
under what circumstances, defense counsel in a negligence/
medical malpractice case can engage in ex parte communications
with doctors who, at one time or another, treated the plaintiff.
The Court’s analysis, of course, begins with Petrillo v. Syntex
Laboratories, 148 Ill. App. 3d 581, 499 N.E.2d 952 (Ill. App. Ct.
1986).
In Petrillo, the Illinois Appellate Court held that “the
duties owed by a physician as a fiduciary are such that he should
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not, in light of the loyalty and trust built into the
relationship he has with his patient, engage in an ex parte
conference with defense counsel”; rather, the court held,
“discussions between defense counsel and a plaintiff’s treating
physician should be pursuant to the Rules of discovery only.”
Petrillo, 148 Ill. App. 3d at 595, 610, 499 N.E.2d at 962, 971.
In Kirkland v. Siglove, No. 11 C 7285, 2013 WL 707917 (N.D.
Ill. Feb. 26, 2013), Judge Gilbert, like this Court, was asked to
consider defense counsel’s request for ex parte communications
with doctors who worked for the defendant medical practice. The
doctors with whom the defendants wanted to speak had treated the
plaintiff, but they had not been named as defendants in the
lawsuit; defense counsel sought permission to communicate with
them outside the presence of the plaintiffs or their attorneys
because they believed it would assist them in defending the
medical practice against the plaintiffs’ negligence claims.
Kirkland, 2013 WL 707917, at *1.

Judge Gilbert recognized that

“Illinois courts have held that ex parte conversations between
attorneys for a medical clinic sued in a medical malpractice
lawsuit and a plaintiff’s treating physicians not named as
defendants in the lawsuit violate the Petrillo doctrine and
invade the physician-patient privilege even though the other
treating physicians are employed by the defendant medical
clinic.”

Id., 2013 WL 707917, at *2.
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Relying on Petrillo and

Aylward v. Settecase, 409 Ill. App.3d 831, 948 N.E.2d 769 (1st
Dist. 2011), Judge Gilbert denied the request for ex parte
communications.
Significantly, neither Petrillo, nor Kirkland, nor Aylward
involved requests for ex parte communications with the doctors
who were the decision-makers for the medical group sued.

They

all involved requests for ex parte communications with doctors
who had treated the plaintiffs, but not been named as defendants
in the lawsuit.

As a result, these cases have limited

application to the motions currently before the Court.
Indeed, the Court could not find a single case where
Petrillo was applied to limit ex parte communications between a
defendant medical practice and the attorneys hired to represent
that practice.

This makes sense.

Given that Illinois law

provides an exception to doctor-patient confidentiality when the
patient sues the doctor for malpractice, see 735 ILCS 5/8-802,
the Petrillo question may not even arise in such circumstances.
When a plaintiff sues his doctor alleging negligence in the
course of treatment, he consents to certain limited disclosures
of information that would otherwise be protected from disclosure
by the doctor-patient privilege. E.g., Kirkland, 2013 WL 707917,
at *2 (citing Petrillo, 499 N.E.2d at 959).

Petrillo limits that

consent, providing that it does not apply to treaters who are not
named as defendants in the lawsuit.
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To some extent, Petrillo is

implicated in this case – certainly it is implicated with respect
to Dr. Parikh, who is unquestionably a non-defendant treater.
And the Court will consider the impact of Petrillo on the request
for ex parte communications with Dr. Parikh below.

But, more

fundamentally, Petrillo does not change the fact that, once a
plaintiff has sued a doctor, he necessarily waives some of the
protections afforded him by the doctor-patient privilege.

And

this makes sense – absent a waiver of the privilege, the accused
doctor would be severely hampered in his ability to defend
himself.

Here, Mr. Kendall – through his wife – sued Scheer

Medical and IGG.

Those are not people, they are corporate

entities; but obviously corporations do not make decisions –
people make decisions on behalf of those corporations.

And so

saying that presidents and decision makers for those corporations
are bound by the doctor-patient privilege is akin to saying that
a doctor who is sued is bound by the privilege.
otherwise, for sound policy reasons.

The law provides

Based upon this, the Court

finds that Petrillo does not preclude ex parte communications
with the individuals who serve as the corporate heads/decision
makers of the accused corporations.
With respect to Dr. Parikh, it seems clear that Petrillo
would forbid ex parte communications.

Dr. Parikh is a non-

defendant physician who provided treatment at or around the time
of the alleged negligence and counsel seeks to interview him ex
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parte specifically to discuss Mr. Kendall’s treatment.

This one

falls squarely within Petrillo’s prohibition.
Having said that, given the timing of the treatment, it is
curious that plaintiff’s counsel has not named Dr. Parikh as a
defendant.

As the Court understands the facts, Dr. Parikh’s

conduct is at issue in this case; the plaintiff has sued Dr.
Liesen, based upon his actions – or inactions – on May 17 and 18;
yet they have not sued Dr. Parikh, who similarly acted – or
failed to act – on the 18th during the same hospitalization
event. Dr. Parikh’s treatment was not subsequent to the alleged
negligence, it was contemporaneous with it.
Although plaintiff’s counsel has indicated that he does not
yet know whether he will name Dr. Parikh as a defendant, it would
be grossly unfair to bar ex parte communications and preclude
counsel from representing him at his deposition, until such time
as plaintiff’s counsel makes that decision.

If counsel names Dr.

Parikh, the privilege is waived and Petrillo does not apply.

If

counsel elects not to name Dr. Parikh, Petrillo applies and
defense counsel will be precluded from presenting him for
deposition or from engaging in ex parte communications.

But at

least then, they will know whether Dr. Parikh’s conduct could
potentially expose them to liability.

Until counsel for the

plaintiff makes that determination, the Court will neither

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require him to sit for deposition, nor allow ex parte
communications with counsel.
Plaintiff’s counsel has 30 days from the date of this order
to amend the complaint to name Dr. Parikh.

If counsel elects to

amend the complaint to add Dr. Parikh, counsel for Scheer
Surgical may represent him, may engage in ex parte communications
with him and may present him for deposition.

If counsel does not

amend the complaint, Dr. Parikh will be considered a nondefendant treater and Petrillo’s prohibition against ex parte
communications will apply.
Conclusion
For the reasons set forth above, the Court finds that the
Petrillo doctrine does not bar ex parte communications with the
decision-makers of the defendant medical groups.

Accordingly,

the Court grants IGG’s motion for leave to engage in ex parte
communications with Dr. Rosenberg [Docket #40].

Along the same

lines, the Court grants in part and denies in part Scheer
Surgical’s motion for leave to engage in ex parte communications
[Docket #43]; counsel for Scheer Surgical may engage in ex parte
communications with Dr. Scheer, who they contend (and the
plaintiff does not dispute) is the decision-maker with respect to
the defendant practice.

But counsel for Scheer Surgical may not

engage in ex parte communications with Dr. Parikh unless and

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until he is named as a defendant in this lawsuit.

Plaintiff’s

counsel has 30 days from the date of this Memorandum Opinion and
Order to amend the complaint to add Dr. Parikh as a defendant, if
he intends to do so.

The motion to quash [Docket #66] is granted

as to the deposition of Dr. Parikh; the deposition of Dr. Parikh
may proceed once the complaint is amended to add him as a
defendant or once the 30-day amendment period has passed,
whichever occurs first.

Given the Court’s finding above

concerning counsel’s ability to communicate ex parte with Dr.
Scheer, the motion to quash the subpoena served on him is denied,
though obviously counsel will have to pick a new date for his
deposition.
Date: September 25, 2013

E N T E R E D:

_________________________________
MAGISTRATE JUDGE ARLANDER KEYS
UNITED STATES DISTRICT COURT

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