The newsletter of the ISBA’s Standing Committee on Government Lawyers
Don’t fear the reaper
As governmental attorneys, we often deal with cases involving death. Whether we are defending a Wrongful Death lawsuit against law enforcement officials or prosecuting a felony murder charge, we frequently come into contact with Coroners and Medical Examiners.1 Many of us may have spoken with a Coroner about autopsy results without analyzing whether such a conversation may breach the doctor-patient privilege. Surprisingly, there is no case law directly on this point in Illinois.
A hypothetical will help illustrate this issue: Bob is a hard-working and grossly under-paid governmental lawyer defending a civil lawsuit. Sue is opposing counsel. A Coroner is subpoenaed to testify at a deposition. Bob appears for the deposition, but Sue does not. After a reasonable amount of time, the court reporter is released, and Bob discusses the particulars of the autopsy with the Coroner while in the elevator. The Coroner mentions that the cause of death was arterial blockage secondary to diabetes. Bob grins. This directly contradicts the Plaintiff’s theory of proximate cause. He now has his issue for summary judgment. When Sue discovers the “elevator conversation,” she seeks sanctions against Bob for violating the doctor-patient privilege.
The analysis of this issue begins with the Privileged Communications-Physician and Patient Act (Privilege Act).2 The Privilege Act states that “[n]o physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient.”3 The Act states several exceptions to this general rule, including: (1) homicide cases; (2) medical malpractice actions against the plaintiff’s physician; (3) with the express consent of the patient; and (4) actions brought by the patient which put her medical condition at issue.4 The fourth exception applies to “all actions,” encompassing both criminal and civil actions,5 though this exception can be overridden by confidentiality provisions in other statutes.6 For example, statements made to a psychiatrist during the course of an examination to determine fitness for a criminal trial can remain confidential.7 The Privilege Act extends to healthcare professionals other than physicians and surgeons.8
The exceptions enumerated in the Privilege Act are not unlimited; they must be read in concert with the Petrillo doctrine. This doctrine is named after Petrillo v. Syntex Laboratories, Inc.9 The doctrine states that ex parte communications between defense counsel and a plaintiff’s treating physician are prohibited because such communications are contrary to the doctor-patient privilege.10 The doctrine can apply even when no confidential information is disclosed.11 Like the Privilege Act, the Petrillo doctrine applies to health care professionals other than physicians and surgeons.12 The doctrine limits the exceptions listed in the Privilege Act by requiring that the doctor-patient privilege can be breached only through the normal discovery methods authorized by the Supreme Court Rules.13 Ex parte communications are prohibited.14
The courts have explained that the public policy behind the Privilege Act and the Petrillo doctrine stems from two areas: the code of ethics which governs the conduct of medical professionals, and the fiduciary relationship between a patient and his physician.15 The physicians’ code of ethics includes three prongs: the Hippocratic Oath; the American Medical Association’s (AMA) Principles of Medical Ethics; and the Current Opinions of the Judicial Council of the AMA.16 The Petrillo Court observed that under these ethical considerations, the relationship between a doctor and patient remains viable only for so long as a patient can trust that his consent is required before the doctor will disclose medical information.17 For the second indicia of public policy, the Court cited cases from Illinois and other jurisdictions emphasizing that at the heart of a fiduciary relationship is trust, loyalty, and faith in the discretion of the fiduciary.18 In other words, the major public policy behind the sanctity of the doctor-patient privilege is to encourage full disclosure between a patient and her doctor.19
Obviously, the privilege (and the underlying public policy) is implicated only when there is a physician-patient relationship established between a patient and a treating physician.20 A physician becomes a “treating physician” when a patient seeks his assistance in the treatment or curing of a physical or mental illness or symptom.21 In at least one instance, the appellate court has held that a doctor-patient relationship is not established when a patient merely has a future appointment with a doctor that is not kept because of the patient’s death, and the doctor has never examined the patient or reviewed any medical records.22
Our hypothetical scenario where a Coroner speaks to a governmental attorney about information gained during an autopsy has not yet been presented to the Illinois courts. However, the Michigan Supreme Court has ruled that there is no doctor-patient privilege involved in the performance of an autopsy.23 The Michigan Court relied upon their state statute setting forth the physician-patient privilege which is substantially similar to the one in Illinois.24 The Court stated that the purpose of the privilege is to protect the doctor-patient relationship and to insure that communications are confidential.25 The Court went on to find that applying the privilege to an autopsy would not further the purpose of the act because there is no communication between a doctor and a patient during an autopsy.26
The Michigan and Illinois laws and public policy are substantially similar on this topic. It seems logical that Illinois courts would rule similarly to the Michigan Supreme Court. As in Michigan, there are no communications between a doctor and a patient during an autopsy in Illinois. Therefore, it does not appear that upholding the privilege during an autopsy in Illinois would serve any public purpose.
Furthermore, a Coroner’s status during an autopsy does not fit within the definition of a treating physician. The Coroner is not attempting to actually treat the decedent. Thus, this scenario does not involve an actual physician-patient relationship because there is no treatment involved. There is no public policy reason that the physician-patient privilege should attach to information garnered from an autopsy. For the same reason, the Petrillo doctrine should not be applicable.
Applying this analysis to our hypothetical situation, Sue does not have a basis to ask for sanctions against Bob. He did not violate the doctor-patient privilege or the Petrillo doctrine by speaking with the Coroner privately.27 The elevator conversation was appropriate, and it gave Bob an excellent chance to defeat the lawsuit on a motion for summary judgment.
As government attorneys, we should examine the public policy behind the rules that govern our unique practice of law. The doctor-patient privilege, read with Petrillo, identifies the importance of patients’ candor with their treating physicians, but the privilege is not meant to protect post-mortem examinations. As with Bob, we should have the ability to speak with a Coroner to gather all the information necessary to properly defend or prosecute on behalf of the People. ■