{ "id": 2554109, "name": "SHARON YOUNG, Plaintiff-Appellee and Cross-Appellant, v. FIKRY MAKAR, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "Young v. Makar", "decision_date": "1991-01-14", "docket_number": "No. 2-90-0337", "first_page": "337", "last_page": "345", "citations": [ { "type": "official", "cite": "207 Ill. App. 3d 337" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "183 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2627660 ], "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0424-01" ] }, { "cite": "176 Ill. App. 3d 661", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3588348 ], "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0661-01" ] }, { "cite": "157 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543613 ], "weight": 6, "pin_cites": [ { "page": "14" }, { "page": "14" }, { "page": "14" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0001-01" ] }, { "cite": "113 Ill. 2d 584", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642305 ], "weight": 10, "year": 1987, "pin_cites": [ { "page": "587" }, { "page": "588" }, { "page": "588" }, { "page": "591" }, { "page": "610" }, { "page": "591" }, { "page": "591" }, { "page": "588" }, { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0581-01" ] }, { "cite": "128 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228739 ], "year": 1986, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0210-01" ] }, { "cite": "87 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031543 ], "weight": 2, "pin_cites": [ { "page": "172" }, { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0167-01" ] } ], "analysis": { "cardinality": 668, "char_count": 16723, "ocr_confidence": 0.733, "pagerank": { "raw": 6.665651525889828e-08, "percentile": 0.4058002995541439 }, "sha256": "68ffd8019e24f16226be1a83477a7d31bcc8a5c2f01c6bc14fef7aebb83c581a", "simhash": "1:5a9b54590dba0445", "word_count": 2587 }, "last_updated": "2023-07-14T17:11:09.339704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHARON YOUNG, Plaintiff-Appellee and Cross-Appellant, v. FIKRY MAKAR, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "JUSTICE DUNN\ndelivered the opinion of the court:\nDefendant\u2019s attorney, Robert McWilliams, appeals from a trial court\u2019s order holding him in contempt for informing the court he would not comply with its pretrial order prohibiting a private interview between him and the plaintiff\u2019s treating physicians. At issue in this case is whether the prohibition against ex parte contact continues even after the physicians have been deposed and whether a defense attorney can be held in contempt for refusing to comply with that prohibition. We affirm the trial court\u2019s order holding defense attorney McWilliams in contempt and prohibiting him from conducting a private interview with the plaintiff\u2019s treating physicians.\nPlaintiff, Sharon Young, brought suit against the defendant, Fikry Makar, M.D., to recover damages for injuries sustained when Dr. Makar performed a hysterectomy upon her. During pretrial discovery, depositions were taken from two of the plaintiff\u2019s subsequent treating physicians, Drs. Dennis Corcoran and William Gorski. After the doctors were deposed, defendant\u2019s attorney, Robert McWilliams, moved for leave to conduct a private interview with these physicians to review their testimony and prepare them for testifying at trial or, in the alternative, to bar plaintiff\u2019s attorney from interviewing these physicians prior to trial.\nThe trial court denied the motion. Defendant\u2019s attorney then informed the court that he would not comply with the court\u2019s order. The court found him in contempt and imposed a fine of $100. In addition, the court ruled that defendant would be barred from introducing the testimony of these physicians at trial if he in fact interviewed them, but that the fine would be remitted to McWilliams if he did not interview them. Defendant timely appeals. The Illinois Association of Defense Trial Counsel has submitted a brief as amicus curiae, pursuant to Supreme Court Rule 345 (107 Ill. 2d R. 345).\nPlaintiff filed a section 2 \u2014 611 motion for sanctions on the basis that the defendant\u2019s motion to conduct an ex parte interview with the plaintiff\u2019s treating physicians was not in good faith or supported by existing law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 611.) The trial court denied this motion. Plaintiff filed a cross-appeal.\nBefore addressing the issue of whether Illinois law prohibits ex parte communication between the defense and the plaintiff\u2019s treating physicians after the physicians have been deposed and for the purpose of preparing them for trial, we must address a preliminary jurisdictional issue raised by the plaintiff. Plaintiff contends on appeal that this court does not have jurisdiction to consider the validity or correctness of the pretrial order itself but only the correctness of the order of contempt entered against defendant\u2019s counsel for his \u201cinappropriate conduct\u201d in court. The plaintiff argues that the pretrial order was never actually violated by McWilliams; therefore, no actual controversy concerning the order exists. The plaintiff contends that under these circumstances the issue of the correctness of the pretrial order is interlocutory until and unless it is actually violated. We disagree.\nA contempt order is collateral to and independent of the case in which it arises. As such, a contempt order is final and appealable despite appearing to be interlocutory. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 172.) In contrast, a pretrial discovery order is an interlocutory order. In People ex rel. Scott v. Silver-stein, our supreme court stated:\n\u201cWhere an unappealable interlocutory order results in a judgment of contempt including fine or imprisonment, such a judgment is a final and appealable judgment and presents to the court for review the propriety of the order of the court claimed to have been violated.\u201d (Silverstein, 87 Ill. 2d at 174.)\nOnce defense attorney McWilliams refused to obey the order and a final contempt order imposing sanctions was entered against him, the contempt order became final and appealable, as well as that part of the underlying pretrial discovery order upon which it was based.\nPlaintiff argues that McWilliams\u2019 statement that he would not comply with the court\u2019s order did not create an actual controversy because McWilliams never intended to actually violate the order, only to manufacture an appeal by stating that he would violate the order. However, our supreme court has stated that exposing one\u2019s self to contempt proceedings has long been recognized as an appropriate method of testing the validity of a court order. (People v. Skukovsky (1988), 128 Ill. 2d 210, 219.) In fact, this method was also used to test the appropriateness of the trial court\u2019s order in Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, appeal denied (1987), 113 Ill. 2d 584. Accordingly, the issue concerning the validity of that part of the pretrial discovery order barring ex parte contact between the defense and the plaintiff\u2019s treating physicians outside of formal discovery is properly before this court. We now turn to that issue.\nThe defendant contends that the trial court erred in prohibiting defense counsel from conducting ex parte interviews with plaintiff\u2019s treating physicians after the physicians had been deposed. Specifically, the defendant argues that the trial court erred in extending the Petrillo doctrine to cover the circumstances surrounding this case.\nIn its amicus brief, the Illinois Association of Defense Trial Counsel requests that this court overrule Petrillo and its progeny. Plaintiff argues that this argument is waived because it was not raised in the trial court. In any event, we are not inclined to reconsider Petrillo or any of the subsequent cases following the Petrillo doctrine.\nPetrillo was the first Illinois case dealing squarely with the issue of whether an interview between defense counsel and a plaintiff\u2019s treating physician, without the plaintiff\u2019s knowledge, violates the physician-patient privilege. The court held that such ex parte conferences are prohibited because modern public policy strongly favors the confidential and fiduciary relationship existing between a patient and his or her physician. Petrillo, 148 Ill. App. 3d at 587.\nThe court explained that society possesses an established and beneficial interest in the sanctity of the physician-patient relationship, which is reflected in both the medical profession\u2019s own code of ethics and the fiduciary relationship existing between a patient and his or her physician, long recognized by both Illinois and United States courts. (148 Ill. App. 3d at 588.) Because of the threat posed to the sanctity of this relationship, the court held that extrajudicial, ex parte discussions of a patient\u2019s medical confidences are prohibited. 148 Ill. App. 3d at 588.\nThe court did recognize that the patient does implicitly consent to a physician\u2019s releasing medical information related to the condition he or she has placed in issue when that patient files a lawsuit, but that this consent is necessarily limited to the release of relevant information pursuant to court-authorized discovery. (148 Ill. App. 3d at 591.) The court concluded that discussions between defense counsel and the plaintiff\u2019s treating physicians should be made pursuant to court-authorized rules of discovery only. 148 Ill. App. 3d at 610.\nThis court adopted the Petrillo holding in Karsten v. McCray (1987), 157 Ill. App. 3d 1. In keeping with the goals sought by the Petrillo court, we held that ex parte interviews with the plaintiff\u2019s treating physicians are prohibited and that barring the testimony of a plaintiff\u2019s treating physician is an appropriate sanction to protect the patient\u2019s confidences and to preclude such interviews from taking place. (157 Ill. App. 3d at 14.) We expressed the same concerns raised in Petrillo. The risk of potential harm to the physician-patient relationship exists in an ex parte situation because the physician may disclose patient confidences which are irrelevant and unrelated to the condition placed at issue in the lawsuit. (157 Ill. App. 3d at 14.) We concluded that the use of formal discovery puts a plaintiff in a position to protect his or her physician-patient relationship by objecting to irrelevant inquiries before the privilege is compromised. 157 Ill. App. 3d at 14.\nDefendant contends that the policy considerations supporting the ban on ex parte interviews with treating physicians do not apply once the information conveyed by the patient to the physician has been properly revealed through discovery. We do not agree. The risk of potential harm to the physician-patient relationship created by ex parte contact between defense counsel and plaintiff\u2019s treating physicians, present in both Petrillo and Karsten, survives even after formal discovery. As such, ex parte communications between defense counsel and plaintiff\u2019s treating physicians are prohibited both before formal discovery and after.\nDefendant argues that, after formal discovery, the information disclosed is no longer confidential and therefore no reason exists to prohibit ex parte interviews after discovery has taken place. This argument assumes there is nothing left of the privilege to protect after discovery has occurred. This is simply untrue.\nWhen the plaintiff filed her lawsuit, she implicitly consented to her physician releasing any medical information related to the condition she placed at issue in the lawsuit. (Petrillo, 148 Ill. App. 3d at 591.) However, the law in Illinois is clear. This consent is limited to only the release of medical information relevant to the lawsuit, pursuant to the methods of discovery authorized by Supreme Court Rule 201(a) (107 Ill. 2d R. 201(a)). The Petrillo court was clear when it stated:\n\u201cA patient certainly does not, by simply filing suit, consent to his physician discussing that patient\u2019s medical confidences with third parties outside court-authorized discovery methods, nor does he consent to his physician discussing patient\u2019s confidences in an ex parte conference with the patient\u2019s legal adversary.\u201d (Emphasis added.) (Petrillo, 148 Ill. App. 3d at 591.)\nThe fact that plaintiff consents to the release of relevant information through court-authorized discovery methods does not extinguish what remains of the physician-patient privilege as defendant would have us believe.\nDefendant argues that our decision in Karsten v. McCray (157 Ill. App. 3d 1) limits the Petrillo doctrine by permitting ex parte contacts with treating physicians where no confidential information is revealed. To the contrary, our decision in Karsten emphasized the need to rely on formal discovery to insure the physician-patient privilege is protected before it is compromised. We stated:\n\u201cDiscussion of the patient\u2019s confidences under circumstances other than through formal discovery is potentially harmful to the interests of the patient in that the physician might disclose intimate facts regarding the patient which are unrelated and irrelevant to the mental or physical condition placed at issue in the lawsuit. [Citation.] A plaintiff should be allowed to protect his physician-patient privilege before it is compromised. Requiring utilization of formal discovery procedures places the plaintiff in a position to object to irrelevant inquiries. Court supervision would protect the interests of both parties.\u201d (Emphasis in original.) (157 Ill. App. 3d at 14.)\nNothing from our opinion in Karsten should be construed as limiting the Petrillo doctrine.\nIt is true that the information disclosed through discovery is no longer confidential and that the physician-patient privilege is waived to that extent, but the threat to what remains of the confidential and fiduciary relationship between the patient and her physician is still present. It would be quite difficult for the defense to discern to what extent the privilege is waived and to stick strictly to those areas without creating a risk to what remains of the privilege. Permitting ex parte interviews between defense counsel and the treating physicians would subject the physicians to improper pressures to disclose information without the presence of the plaintiff to insure protection of the privilege.\nDefendant argues that society\u2019s interest in ascertaining the truth outweighs society\u2019s interest in protecting the physician-patient privilege. We disagree. This same argument was addressed in Petrillo. Again, the law is clear. The Petrillo court emphasized the strong public policy favoring protection of the \u201csanctity of the physician-patient relationship.\u201d (Petrillo, 148 Ill. App. 3d at 588.) Contrary to what the defendant argues, the ban on ex parte conferences does not impair society\u2019s interest in ascertaining the truth because it does not prevent the truth from being discovered. \u201c[I]t merely regulates the discovery process so as to protect the confidential relationship existing between a patient and his treating physician.\u201d Petrillo, 148 Ill. App. 3d at 606.\nDefendant argues that, by denying the defendant access to the plaintiff\u2019s treating physician in order to prepare his testimony, the rule impedes the truth from being discovered at trial. The defendant claims that without the opportunity to go over the physician\u2019s testimony before trial, the presentation of the physician\u2019s testimony would be adversely impacted which, in turn, increases the chances that the truth will not be ascertained at trial. We believe the defendant greatly overstates the risk that the truth will not be ascertained. The physician is required to testify truthfully at trial, and the defense is entitled to cross-examination. With these safeguards intact, the risk that the truth will not be ascertained is very small and does not outweigh society\u2019s interest in protecting the sanctity of the physician-patient relationship.\nIn sum, we reaffirm the holdings in Petrillo and Karsten. Ex parte communications between defense counsel and the plaintiff\u2019s treating physicians pose an impermissible threat to the sanctity of the physician-patient relationship. That threat survives even after formal discovery has taken place. As such, to avoid undermining this relationship, such ex parte communications are prohibited.\nAccordingly, for the reasons set forth above, we rule that discussions between defense counsel and a plaintiff\u2019s treating physician should be pursuant to the rules of. discovery only. The decision of the circuit court of Winnebago County is affirmed.\nWe now turn to the plaintiff\u2019s cross-appeal. This court only has jurisdiction to review final orders unless the order falls within one of the exceptions for interlocutory orders set forth in the supreme court rules, none of which applies here. (Renzulli v. Zoning Board of Appeals (1988), 176 Ill. App. 3d 661, 662.) Pursuant to section 2 \u2014 611 of the Code, plaintiff\u2019s cross-appeal must be dismissed. Section 2 \u2014 611 states in part as follows:\n\u201cAll proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney or insurance company involved in the civil action in question.\u201d Ill. Rev. Stat. 1987, ch. 110, par. 2-611.\nClearly, section 2 \u2014 611 claims must be considered a part of the civil action which gave rise to the claim, not a separate action. (In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 430.) Plaintiff\u2019s claim for sanctions against McWilliams arises from the civil action for malpractice which has not yet been resolved. Until that action is resolved, we cannot consider whether the trial court\u2019s order dismissing plaintiff\u2019s motion for section 2 \u2014 611 sanctions was proper. Accordingly, the plaintiff\u2019s cross-appeal is dismissed.\nAffirmed in part; dismissed in part.\nUNVERZAGT and WOODWARD, JJ., concur.", "type": "majority", "author": "JUSTICE DUNN" } ], "attorneys": [ "Robert R. McWilliams, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., of Rockford (Lawrence R. Kream, of counsel), for appellant.", "Peter S. Switzer and Robert C. Pottinger, both of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford (Thomas G. Ruud, of counsel), for appellee.", "Shaun McFarland Baldwin, of Tressler, Soderstrom, Maloney & Priess, of Wheaton, for amicus curiae Illinois Association of Defense Trial Counsel." ], "corrections": "", "head_matter": "SHARON YOUNG, Plaintiff-Appellee and Cross-Appellant, v. FIKRY MAKAR, Defendant-Appellant and Cross-Appellee.\nSecond District\nNo. 2\u201490\u20140337\nOpinion filed January 14, 1991.\nRobert R. McWilliams, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., of Rockford (Lawrence R. Kream, of counsel), for appellant.\nPeter S. Switzer and Robert C. Pottinger, both of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford (Thomas G. Ruud, of counsel), for appellee.\nShaun McFarland Baldwin, of Tressler, Soderstrom, Maloney & Priess, of Wheaton, for amicus curiae Illinois Association of Defense Trial Counsel." }, "file_name": "0337-01", "first_page_order": 359, "last_page_order": 367 }