Can a Physician Who Had a Brief Communication Which Revealed No Confidential Information With Defendant's Lawyer Give Testimony ?
In Mahan v. Louisville & Nashville R.R. Co., 203 Ill. App. 3d 748, 561 N.E.2d 127, 148 Ill. Dec. 821 (1990), the plaintiff alleged the trial court erred when it allowed one of his treating physicians to give testimony regarding certain CT scans.
The plaintiff argued that under Petrillo, the physician should not have been allowed to testify because he and one of the defendant's attorneys had an ex parte communication regarding the scans prior to the physician's deposition.
The ex parte communication between defendant's attorney and plaintiff's physician was limited to a brief discussion lasting no more than 30 seconds prior to the physician's deposition during which time the defendant's attorney merely asked the physician if he had seen the plaintiff's CT scans.
The doctor indicated that he had not had time to review the scans prior to the deposition but that he had reviewed his notes and determined that the scans were not relevant to what he had treated the patient for.
The attorney then apparently asked the physician whether he would then have time to review the scans, and the doctor indicated that it would take him about 5 or 10 minutes to do so and that because of the time factor he would go along with what the hospital radiologist had found regarding the results of those scans.
The Mahan court held that there was no Petrillo violation.
In so ruling, the court made the following finding:
"Plaintiff did not and could not establish that this communication resulted in any prejudice to him or that [the doctor's] conduct was in any way improper.
Plaintiff nevertheless asserts that such prejudice and improper conduct should be implied as a matter of law based on the fact of the ex parte communication alone.
We disagree. Plaintiff bases his argument on Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 513 N.E.2d 519, 112 Ill. Dec. 105, but in Yates, the defendant's attorney had had numerous meetings and communications with the patient's physician regarding the patient's medical condition while the plaintiff was still being treated by that physician.
The communication here was de minimis, and it did not result in the disclosure of any private or confidential information regarding the patient." Mahan, 203 Ill. App. 3d at 754.