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    "judges": [
      "KNECHT and TURNER, JJ, concur."
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    "parties": [
      "RANDALL HALL, Plaintiff-Appellant, v. JOYCE A. FLOWERS et al., Defendants-Appellees."
    ],
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        "text": "JUSTICE COOK\ndelivered the opinion of the court:\nPlaintiff, Randall Hall, appeals the July 31, 2002, order of the Coles County circuit court denying plaintiffs motion for a protective order to prevent defense counsel from communicating ex parte with Dr. Gaylin Lack, one of plaintiffs treating physicians. Plaintiff also appeals the September 24, 2002, order of the court granting defendants\u2019 motion for summary judgment on the issue of causation. We affirm.\nI. BACKGROUND\nOn October 27, 2000, plaintiff filed a complaint, alleging that he was entitled to damages sustained from the negligent administration of an intravenous pyelogram (IVP) performed by defendant Joyce A. Flowers, a radiological technologist, on October 30, 1998, at defendant Sarah Bush Lincoln Health Center (Sarah Bush). An IVP involves the intravenous injection (IV) of water-soluble contrast material. The contrast material collects in the kidneys for the purpose of performing an X ray. Flowers admitted in her deposition that when conducting the IVP procedure on plaintiffs right arm, she penetrated plaintiffs vein, allowing contrast material to seep into the surrounding tissues. She testified that plaintiffs right arm was not discolored, did not blister, but was slightly swollen. Plaintiff testified in his deposition that he remembered a strong metallic taste with the initial injection of contrast material. He felt a ripping sensation in his right arm, and he experienced a numbing and tingling sensation in his right hand. An X ray of plaintiffs right arm indicated complete extravasation, or escape, of the contrast material into the arm. An IVP was then successfully performed on plaintiffs left arm.\nThe day after the IVP procedure, plaintiff experienced soreness and a lack of sensation in his right hand. He sought care from Sarah Bush\u2019s emergency department. Plaintiff was told to stay off work and follow up with Dr. Mark Dettro, plaintiffs family practice physician.\nDr. Gaylin Lack is an orthopedic surgeon practicing medicine in Coles County. Dr. Lack has been a member of Sarah Bush\u2019s active medical staff, that is, he has had medical privileges, since 1980. In April 2001, Dr. Lack became an employee of Sarah Bush.\nDr. Lack treated plaintiffs complaints of soreness and lack of sensation in his right arm from February 2000 through March 2001. On June 9, 2000, Dr. Lack performed surgery on plaintiffs right arm at Sarah Bush. During Dr. Lack\u2019s first consultation with plaintiff, on February 24, 2000, Dr. Lack wrote in his physician\u2019s notes that plaintiffs carpal tunnel syndrome may have been based on a \u201cdouble crush syndrome.\u201d In his physician\u2019s notes of November 9, 2000, Dr. Lack wrote, \u201cI believe that we may be dealing with a double crush type of problem with an irritation or some [type] of persistent injury to the brachial plexus or some of the nerves proximally in the arm as a result of the extravasation of the contrast material that was injected when he had the IVP\u201d\nPlaintiff\u2019s attorney attached his affidavit to the complaint, as required by section 2 \u2014 622 of the Code of Civil Procedure. 735 ILCS 5/2 \u2014 622(a)(1) (West 2000). The report of a board-certified radiologist, Dr. Jeffrey Dach, was also attached to the complaint. Dr. Dach\u2019s report stated that in his opinion, \u201cbased upon the review of the records, it appears that the IV contrast extravasation into the patient\u2019s arm may have caused significant injury to the arm.\u201d\nThe court\u2019s case-management order directed plaintiff to disclose opinion witnesses by October 1, 2001. That order was extended twice. On June 3, 2001, plaintiff filed a third motion for an extension of time to disclose witnesses. The next day, defendants filed a motion for summary judgment. Apparently on June 21, 2002, plaintiff disclosed Dr. Lack as an independent expert witness. See 177 Ill. 2d R. 213(f) (eff. May 1, 1997). Plaintiff was given 30 days to take Dr. Lack\u2019s deposition. On July 15, 2002, plaintiff filed a motion to extend the time for taking Dr. Lack\u2019s deposition to August 20, 2002, and a request for a protective order to prohibit ex parte communications between defense counsel and Dr. Lack. The request for a protective order was denied July 31, 2002.\nDuring his deposition, August 20, 2002, Dr. Lack testified he had two ex parte conversations with defense counsel about his treatment of plaintiff. The first of these conversations probably took place sometime in 2002, after he had stopped treating plaintiff, and after he had become an employee of the hospital. During this conversation, they examined records counsel had received from other physicians, specifically Dr. Dettro, and they discussed plaintiffs condition. The second such conversation took place immediately before Dr. Lack\u2019s discovery deposition.\nDuring his deposition, Dr. Lack testified that he could not say to a reasonable degree of medical certainty that the IVP procedure could have been the cause of plaintiffs problems. Dr. Lack testified he rejected that possibility after review of the chart, \u201crecollection of instances when we\u2019ve had other people with extravasation of contrast material in the soft tissues without any significant long-term complication,\u201d talking with defense counsel, and looking at Dr. Dettro\u2019s records, which indicated plaintiff had recovered from the extravasation and then began to have more complaints after he returned to work.\nOn September 24, 2002, the trial court granted defendants\u2019 motion for summary judgment and on December 3, 2002, denied plaintiffs motion to reconsider. This appeal followed.\nII. ANALYSIS\nPlaintiff argues that the trial court abused its discretion by denying plaintiffs request for a protective order to prohibit ex parte communications between Sarah Bush\u2019s defense counsel and plaintiffs treating physician, Dr. Lack. Plaintiff relies on the doctrine set forth in Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986). The Petrillo doctrine forbids ex parte communications between defense counsel and a plaintiffs treating physician because these conferences jeopardize the sanctity of the physician-patient relationship and are prohibited as against public policy. Petrillo, 148 Ill. App. 3d at 588, 499 N.E.2d at 957.\nPlaintiffs reliance on Petrillo is misplaced. In Petrillo, the defense attorney for Syntex Laboratories appealed the trial court\u2019s order finding him in contempt of court for failing to comply with the court\u2019s order barring him from engaging in private, ex parte communications with plaintiffs treating physician in connection with plaintiffs products liability action. The Petrillo court affirmed the trial court and concluded that defense counsel could communicate with plaintiff\u2019s treating physician only through court-approved discovery methods. The court was concerned with the situation where \u201cthe physician divulges to a third party information which the patient originally disclosed to the physician with the belief that the information would remain confidential unless the patient gave his consent otherwise.\u201d (Emphasis added.) Petrillo, 148 Ill. App. 3d at 591, 499 N.E.2d at 959.\nThe Hospital Licensing Act (Act) (210 ILCS 85/6.17(b), (d), (e) (West 2000)) carves out an exception to the Petrillo doctrine. Where a patient institutes a legal action against a hospital, \u201c[t]he hospital is not a third party with respect to its own medical information, which is compiled by the hospital\u2019s own caregivers.\u201d Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 57, 759 N.E.2d 533, 555 (2001) (upholding the constitutionality of subsections 6.17(d) and (e) of the Act). The clear and unambiguous language of sections 6.17(b), (d), and (e) of the Act permits limited ex parte communications between a hospital\u2019s defense counsel and plaintiffs treating physician. 210 ILCS 85/6.17(b), (d), (e) (West 2000); In re Medical Malpractice Cases Pending in the Law Division, 337 Ill. App. 3d 1016, 1025, 787 N.E.2d 237, 244 (2003). Subsection (b) states that \u201c[a]ll information regarding a hospital patient gathered by the hospital\u2019s medical staff and its agents and employees shall be the property and responsibility of the hospital.\u201d 210 ILCS 85/6.17(b) (West 2000). Subsection (d) allows members of a hospital\u2019s medical staff, its agents, and employees to disclose the nature or details of services provided to patients to those parties responsible for \u201cpeer review, utilization review, quality assurance, risk management^] or defense of claims brought against the hospital arising out of the care.\u201d (Emphasis added.) 210 ILCS 85/6.17(d) (West 2000); In re Medical Malpractice Cases Pending in the Law Division, 337 Ill. App. 3d at 1022, 787 N.E.2d at 241-42. Subsection (e) states that the hospital\u2019s medical staff members, its agents, and employees \u201cmay communicate, at any time and in any fashion, with legal counsel for the hospital concerning *** any care or treatment they provided or assisted in providing to any patient within the scope of their employment or affiliation with the hospital.\u201d 210 ILCS 85/6.17(e) (West 2000).\nIn dicta, the Burger court interpreted these subsections to allow communications between hospital defense counsel and treating physicians so long as (1) the communications are strictly limited to the intrahospital setting, (2) there is no disclosure of a patient\u2019s medical information to outside third parties, (3) the communications are narrowly circumscribed to include only medical care and treatment rendered to the patient at the hospital, by the hospital\u2019s own medical staff agents or employees, and (4) the communications involve only information already known to the hospital by virtue of subsection (b). Burger, 198 Ill. 2d at 54-55, 759 N.E.2d at 553.\nPlaintiff argues that Dr. Lack was a third party and not a member of the medical staff, an agent, or employee when he treated plaintiff for the alleged injury to his right arm. Dr. Lack testified that he became affiliated with Sarah Bush in 1980 as a member of the medical staff and became an employee in April 2001. As a member of the medical staff he was entitled to \u201cpractice orthopedics and orthopedic surgery. It required coverage of call in the emergency room, as well as giving [him] the privilege to admit patients to the hospital, use of surgical and ancillary services.\u201d He testified that his affiliation with Sarah Bush before 2001 is commonly referred to as having \u201cprivileges\u201d at the hospital. Regulations to the Act define \u201cmedical staff\u2019 as an organized body composed of the appropriately licensed individuals granted the privilege by the governing authority of the hospital to practice in the hospital. 77 Ill. Adm. Code 250.150 (Conway Greene CD-Rom March 2002). Plaintiff was a patient of Dr. Lack from February 2000 through March 2001, while Dr. Lack was a member of Sarah Bush\u2019s medical staff. On June 9, 2000, Dr. Lack performed surgery on plaintiff at Sarah Bush to treat symptoms related to this litigation. The ex parte communications took place after Dr. Lack became an employee of Sarah Bush.\nNext, plaintiff argues that the ex parte communications were not authorized by the Act because they concerned treatment rendered outside of the intrahospital setting. We disagree. On June 9, 2000, Dr. Lack performed surgery on plaintiff at Sarah Bush to alleviate plaintiffs symptoms in his right arm. The communications at bar involved Dr. Lack\u2019s treatment of plaintiffs right arm and his opinion on the issue of the causation of plaintiffs symptoms. It is true that Dr. Lack treated plaintiff from February 2000 until the June 9, 2000, surgery, without any involvement of Sarah Bush. Perhaps the mere fact that Dr. Lack had privileges at Sarah Bush would not have entitled Sarah Bush\u2019s attorneys to communicate with Dr. Lack regarding that treatment, if there was nothing more to it. However, the fact that Dr. Lack did surgery on plaintiff on June 9, 2000, at Sarah Bush, changes the picture. Sarah Bush was entitled to know everything Dr. Lack knew about that surgery, including information he acquired leading up to the surgery. \u201cAll information regarding a hospital patient gathered by the hospital\u2019s medical staff and its agents and employees shall be the property and responsibility of the hospital ***.\u201d 210 ILCS 85/ 6.17(b) (West 2000). \u201c[I]t follows from subsection (b) that any information known by any hospital care-giver with respect to a patient\u2019s care at that hospital is hospital information.\u201d (Emphasis in original.) Burger, 198 Ill. 2d at 41-42, 759 N.E.2d at 546.\nThe purpose of the Act \u201cis to provide for the better protection of the public health through the development, establishment, and enforcement of standards *** for the care of individuals in hospitals.\u201d 210 ILCS 85/2(a) (West 2000). A limited intrahospital exchange of information is beneficial to the general health and welfare of the public. Burger, 198 Ill. 2d at 41, 759 N.E.2d at 546. The Burger court found that \u201ccommunication of a patient\u2019s medical information to legal counsel or risk[-]management personnel may be necessary in order not only to adequately and appropriately respond to the occurrence, but also to prevent any similar adverse occurrence in the future.\u201d Burger, 198 Ill. 2d at 43, 759 N.E.2d at 547. The court listed other legitimate reasons for communicating information that are separate and apart from litigation but concluded that the filing of a lawsuit does not affect the hospital\u2019s right to access its own information. Burger, 198 Ill. 2d at 58, 759 N.E.2d at 555. Determining the effects of extravasation following an TVP performed at Sarah Bush is certainly an appropriate response to the occurrence and within the scope of preventative practice.\nB. Summary Judgment\nPlaintiff argues that the trial court erred in granting defendants\u2019 motion for summary judgment because a genuine issue of material fact as to causation remains.\nWhen reviewing a trial court\u2019s grant of summary judgment, this court liberally considers the affidavits, depositions, admissions, exhibits, and pleadings in the record de novo and in a light most favorable to the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323, 1326 (1995). Summary judgment is a drastic means of disposing of litigation and is only appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Espinoza, 165 Ill. 2d at 113, 649 N.E.2d at 1326. On a motion for summary judgment it is the movant who bears the burden of persuasion and the initial burden of production. Where a defendant is the movant, it is only when the defendant satisfies its initial burden of production that the burden shifts to the plaintiff to present some factual basis that would arguably entitle him to a judgment under the applicable law. Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 900, 770 N.E.2d 1211, 1214 (2002); Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 689, 737 N.E.2d 662, 668 (2000). A defendant who moves for summary judgment may meet the initial burden of production either: (1) by affirmatively showing that some element of the cause of action must be resolved in defendant\u2019s favor; or (2) by demonstrating that plaintiff cannot produce evidence necessary to support the plaintiffs cause of action. Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 641, 784 N.E.2d 258, 265 (2002). Only if defendants satisfy their initial burden of production does the burden shift to plaintiffs to present some factual basis that would arguably entitle them to a favorable judgment. Rice v. AAA Aerostar, Inc., 294 Ill. App. 3d 801, 805, 690 N.E.2d 1067, 1070 (1998).\nWhere plaintiff in a medical malpractice case is unable to procure the necessary expert testimony, summary judgment for the defendant is appropriate. Stevenson v. Nauton, 71 Ill. App. 3d 831, 835, 390 N.E.2d 53, 57 (1979). The basis for such a summary judgment is that plaintiff is unable to procure an expert. Where plaintiff indicates that he will be able to obtain an expert, he must be given every opportunity to do so. See Stevenson, 71 Ill. App. 3d at 835, 390 N.E.2d at 56; Addison v. Whittenberg, 124 Ill. 2d 287, 295-96, 529 N.E.2d 552, 556 (1988) (refusing to uphold summary judgment on the basis that the Rule 220 deadline had passed (see 134 Ill. 2d R. 220 (repealed))). Of course, the trial court is not required to accept a plaintiffs promise that an expert will be forthcoming and may set a deadline for production. The basis for the summary judgment, however, is the trial court\u2019s determination that no expert will be produced.\nThe trial court held that plaintiff failed to present evidence that his injuries were caused by Flowers\u2019s negligence in performing the IVE To prove this element, plaintiff proffered the notes and deposition testimony of Dr. Lack. Dr. Lack admitted and his physician\u2019s notes indicate that at the time he treated plaintiff, Dr. Lack entertained the possibility that plaintiff\u2019s physical complaints were caused by Flowers\u2019s alleged negligence. Dr. Lack, however, testified in his deposition that he did not believe, to a reasonable degree of medical certainty, that the IVP procedure could have been the cause of plaintiff\u2019s problems. Dr. Dettro also testified with a reasonable degree of medical certainty that plaintiffs symptoms are more likely caused by plaintiffs employment rather than from infiltration during the IVP procedure.\nPlaintiff argues there is a material issue because Dr. Lack allegedly changed his opinion as to causation after plaintiff filed the lawsuit and after his ex parte conversations with defense counsel. In his discovery deposition, Dr. Lack indicated he did not change his mind as to causation because he had not previously formed an opinion as to whether the IVP procedure contributed to plaintiffs symptoms. Dr. Lack formed his opinion after his treatment of plaintiff and after gleaning new information, some of which was learned before Dr. Lack became an employee of Sarah Bush. Plaintiff failed to produce any expert opinion showing the IVP procedure caused plaintiffs symptoms in his right arm despite the trial judge\u2019s repeated extension of witness-disclosure deadlines giving plaintiff ample opportunity to support the causation element of his claim. Summary judgment is appropriate.\nIII. CONCLUSION\nDefense counsel\u2019s limited, ex parte communications with plaintiffs treating physician, Dr. Lack, were permitted by the Act. The trial court\u2019s denial of plaintiffs protective order was not an abuse of discretion. Defendants demonstrated that plaintiff cannot produce an expert. The trial court properly granted defendants\u2019 motion for summary judgment. We affirm.\nAffirmed.\nKNECHT and TURNER, JJ, concur.",
        "type": "majority",
        "author": "JUSTICE COOK"
      }
    ],
    "attorneys": [
      "Daniel C. Jones (argued), of Hefner, Eberspacher & Tapella, of Mattoon, for appellant.",
      "Stephen R. Swofford, Kevin M. Miller, and Timothy G. Shelton (argued), all of Hinshaw & Culbertson, of Chicago, for appellees."
    ],
    "corrections": "",
    "head_matter": "RANDALL HALL, Plaintiff-Appellant, v. JOYCE A. FLOWERS et al., Defendants-Appellees.\nFourth District\nNo. 4\u201403\u20140006\nArgued June 18, 2003.\nOpinion filed September 25, 2003.\nRehearing denied November 18, 2003.\nDaniel C. Jones (argued), of Hefner, Eberspacher & Tapella, of Mattoon, for appellant.\nStephen R. Swofford, Kevin M. Miller, and Timothy G. Shelton (argued), all of Hinshaw & Culbertson, of Chicago, for appellees."
  },
  "file_name": "0462-01",
  "first_page_order": 480,
  "last_page_order": 489
}
