Miles v. Farrell

• Decision Date: 25 August 1982
• Docket Number: No. 78 C 481.,78 C 481.
• Citation: Miles v. Farrell, 549 F.Supp. 82 (N.D. Ill. 1982)
• Parties: Troy A. MILES, et al., Plaintiffs, v. William FARRELL, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

549 F. Supp. 82

Troy A. MILES, et al., Plaintiffs, v. William FARRELL, et al., Defendants.

No. 78 C 481.

United States District Court, N.D. Illinois, E.D.

August 25, 1982.

Philip H. Corboy, John D. Hayes, Chicago, Ill., for plaintiffs.

John R. Caffrey, Joyce E. Staat, Clausen, Miller, Gorman, Caffrey & Witous, Chicago, Ill., for William Farrell.

Perry L. Fuller, E. Michael Kelly, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Ill., for Little Co. of Mary Hosp.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge.

The issue before the court is whether the court properly may bar the testimony of Dr. John T. Flynn who treated the plaintiff, a blind child, both before and after he was retained as an expert by one of the defendants, without disclosing his relationship with the defendant.¹ On the facts of this case, I conclude that the doctor may not be called by any defendant to testify at the trial either as an expert or as a treating physician.

The facts are as follows: On August 17, 1978, the plaintiff's parents were deposed. Two attorneys representing Dr. William Farrell, one of the defendants, were present at the deposition. These attorneys were John Caffrey and Joyce Lewis from the law firm of Clausen, Miller, Gorman, Caffrey & Witous. During the depositions, eight times the parents testified that the plaintiff Troy Miles had been seen and treated at the Bascom Palmer Clinic.

Two weeks later, on August 31, 1978, Mr. Caffrey telephoned Dr. John T. Flynn of the Bascom Palmer Clinic. On September 5, 1978, Ms. Lewis conferred with Dr. Flynn and requested that he act as a consultant on behalf of Dr. Farrell "for the purpose of reviewing the records in this subject lawsuit and possibly testifying as an expert witness at trial." (Lewis Affidavit) Dr. Flynn agreed to act as the defendant's expert on or about January 26, 1979, after he had received Troy Miles's medical records from Dr. Farrell's attorneys.

After being contacted by the defendant's attorneys and before accepting employment as Dr. Farrell's expert, Dr. Flynn examined Troy Miles at Bascom Palmer Institute as a treating physician. After accepting employment as defendant's expert, on February 12, 1979, Dr. Flynn, in his capacity as treating physician, hospitalized Troy Miles at the Bascom Palmer Institute and performed an examination under general anesthesia. At no time did Dr. Flynn reveal to the plaintiff's parents any of the facts relating to his involvement with one of the defendants in this case.

On January 13, 1982, Dr. Farrell's attorneys disclosed Dr. Flynn as an expert witness on behalf of the defendant. On February 22, 1982, Dr. Flynn again hospitalized Troy Miles at the Bascom Palmer Institute, ordered ultrasound and an electrocardiogram, and examined Troy Miles under general anesthesia. On or about March 26, 1982, one of the plaintiff's attorneys contacted Dr. Flynn concerning his dual status as treating physician and expert witness for the defendant.²

The defendant persists in his argument that he should be entitled to call Dr. Flynn to testify as an expert, including his treatment of Troy Miles, and his consultations with Troy Miles's parents in his capacity as treating physician. The defendant argues that any doctor/patient privilege which requires Dr. Flynn to honor his patient's privacy is waived by the fact that Troy Miles filed this lawsuit which puts his medical condition at issue. (This is a suit against a hospital and a doctor for medical malpractice.) The defendant further argues that Dr. Flynn owes no cognizable fiduciary duty to Troy Miles which might prevent him from testifying as a defendant's expert.

Dr. Flynn wants to testify; he informed the court that "I see my role as testifying as an expert witness, and qualified to speak on the scientific knowns and unknowns in cases of retrolental fibroplasia." (Dr. Flynn's letter to the court.) Dr. Flynn assures the court that he did not knowingly act as both expert and treating physician.³

Arguments similar to the defendant's arguments in this case were rejected by the Circuit Court of Cook County in Barkin v. Skokie Valley Community Hospital, 76 L 23428. In that case the defense attorneys (who were from the same law firm as the defense attorneys for Dr. Farrell in this case) contacted the plaintiff's treating physician and conferred with him with respect to his acting as a defense...