Turning the Coroner on Petrillo
By: Robert P. Vogt
I recently observed a defense attorney present a "motion to engage in ex parte communications." The attorney explained to the motion judge that his case involved a death and that he wished to speak with the coroner/medical examiner about the autopsy report. Fearing that favorable testimony might be barred, the defense attorney sought an order that any communication with the coroner would not violate the Illinois Appellate Court's ruling in Petrillo V. Syntex, 499 N.E.2d 952 (1986).
In response, the plaintiff's attorney objected, asserting that any such "ex parte" conference (a discussion held outside the discovery methods authorized by Illinois Supreme Court Rule 201) was barred by Petrillo. The motion judge entered a briefing schedule.
In Petrilto V. Synter, the 1st District Appellate Court ruled that "discussions between defense counsel and a plaintiff's treating physician should be pursuant to the rules of discovery only." In a lengthy opinion, the court analyzed medical ethics, fiduciary duties and legal principles in concluding that ex parte conferences between defense attorneys and a plaintiff's treating physician were inappropriate because such conferences jeopardize the confidential physician-patient relationship.
However, an analysis of the Petrillo decision and the theories underlying the court's ruling, unmistakably leads to the conclusion that Petrillo does not apply when a defense attorney discusses an autopsy with a coroner.
First, a coroner does not have a confidential and/or fiduciary relationship with the deceased. The deceased certainly did not seek out the coroner for the purpose of obtaining treatment and, of course, no privileged secrets or communications are involved. Unlike treating physicians, no physician-patient relationship exists between the deceased and the coroner.
One Illinois appeals court has ruled, in a slightly different context, that the absence of a physician-patient relationship renders Petrillo inapplicable. See Hoem u. Zia, 606 N.E.2d 818 (1992).
Second, no public policy is jeopardized. The Petrillo court recognized that treating physicians owe an ethical duty to refrain from discussing their patient's care and treatment outside the methods of discovery provided by Supreme Court Rule 201. Coroners, however, owe no ethical duty to keep the results of their examination confidential. In fact, the opposite is true; records relating to a coroner's autopsy are deemed public records under ILCS 5/115.5.1. Thus, unlike physicians who come into possession of private or confidential information, discussing the results of an autopsy with a defense attorney does not tempt the coroner to reveal privileged information.
Third, no conflict of interest is created when a coroner discusses the findings set forth in an autopsy report. The Petrillo court noted that allowing defense attorneys to meet privately with a patient's treating physician could result in the physician becoming an expert for the defense. This situation, in turn, would create a conflict of interest between the physician's fiduciary duty to help further the patient's interests and the physician's obligation as the defendant's expert. The coroner, however, has no fiduciary relationship with the deceased. In addition, the timing and scope of the coroner's involvement greatly restricts the possibility of the coroner being any party's retained expert.
Finally, perhaps Dr. Nancy Jones, a Cook County medical examiner for the past 13 years, sums this issue up best by observing: "I have performed thousands of autopsies during my career and I can safely say that I have never engaged in a confidential discussion with any patient." Petrillo does not apply to the coroner.
Copyright l999, Chicago Daily Law Bulletin, Reprinted with Permission.