Illinois Appeals Court Protects Hospital Counsel's Right to Speak with Former Agents of Hospital

For attorneys who represent hospitals in medical malpractice cases, dealing with nursing witnesses who have retired or relocated can be difficult. In addition to the practical issues of finding these witnesses, contacting them and communicating with them remotely, potential legal issues can further complicate circumstances. For example, opposing counsel may take issue with attempts to contact such witnesses under the broad prohibition against defense attorneys communicating with treating witnesses (known as the Petrillo doctrine). Opposing counsel may also seek the exact nature and content of such communication and challenge the existence of any privilege protecting it. While in most cases these issues can be resolved informally among the attorneys, hospital attorneys should keep the case of Caldwell vs. Advocate Condell Medical Center, 2017 IL App (2d) 160456 (Oct. 4, 2017) at ready reference in case they cannot.

Caldwell is a medical malpractice/wrongful death lawsuit that involved a 92-year-old female who choked on food and died while a patient at Advocate Condell Medical Center (Condell) in 2014. The lawsuit alleged that Condell, through its unnamed nurses, negligently failed to monitor the patient, ensure she was able to eat and confirm she was wearing dentures while eating. Plaintiff argued Condell's attorneys violated the Petrillo doctrine by meeting with a former employee of Condell, Kathleen Likosar, before her deposition. Plaintiff maintained that Likosar was retired at the time of her deposition, that she was not treating the patient during the period of alleged negligence, that the statute of limitations had run against her, and that she was not and could not be named as an individual defendant in the case.

The Appellate Court concluded that no Petrillo violation occurred because the Complaint alleged negligent nursing conduct against the hospital, even if no individual nurses were named as defendants. Likosar had directly treated the patient and managed other nurses who treated the patient and, therefore, her conduct could expose Condell to potential liability. The Court relied on prior cases creating exceptions to the Petrillo doctrine for nurses who are specifically named as defendants in a lawsuit or for whose conduct a hospital could potentially be held vicariously liable. 

The Appellate Court further determined that pre-deposition communication was protected under the insurer-insured privilege, an extension of the attorney-client privilege, because the communication occurred between an insured and the attorney assigned by the insurer. The Court explained that the attorney-client privilege extended to pre-deposition communication because the dominant purpose of the communication was to ensure the insured client's attorney had necessary information to protect the interests of his client. The Court stated, "the fact that Likosar retired weeks before her evidence deposition is completely irrelevant to her status as Condell's agent," because her actions could still have given rise to vicarious liability for Condell.

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