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Borowicz v. Seuring Transit Co.

JUNE 24, 1968.




Appeal from the Circuit Court of Cook County; the Hon. BENJAMIN NELSON, Judge, presiding. Affirmed.


This is a personal injury action by the driver and passengers of an automobile that was struck in the rear by a tractor-trailer being driven by defendant Paul Wright for defendant Seuring Transit Company, Inc. The plaintiffs include Lillian Borowicz, who was driving her husband's automobile, and Catherine McCarthy, her mother, John McCarthy, her father, and Jerry Borowicz, her minor son. The occurrence took place on the evening of January 22, 1964.

The jury returned verdicts in favor of all plaintiffs. The primary reason for defendants' appeal is the $33,000 award in favor of Mrs. Borowicz, which defendants charge was grossly excessive.

Defendants' other contentions on appeal are: (1) The testimony of Dr. Lucatorto of alleged pathology shown on the X rays, interpreted for him in a written report of an unidentified roentgenologist, which report was not produced in evidence, was incompetent as hearsay, and should have been stricken. (2) A patient's history and statement of subjective complaints, given to an examining physician for the purpose of testifying, is incompetent evidence, and it was error to admit Dr. Smith's testimony on these matters on the pretext that he was a "treating" physician. (3) Defendants were prejudiced by the arbitrary curtailment of their examination of their medical witnesses and in not permitting defendants' exhibit 6 (a medical record) to go to the jury room.

Mrs. Borowicz testified that immediately after the occurrence, she experienced pains and stiffening in her neck; her back, left shoulder, left thigh and knee hurt, and she had bruises on her right hand. After a night of pain, she consulted with Dr. Lucatorto on January 23, 1964, the day after the occurrence. She was hospitalized for six days, where she was in bed traction for 22 hours a day and was not allowed to sit up. She received medication and diathermy treatments. When discharged from the hospital she felt no improvement in her condition. She was fitted for a surgical collar — "A surgical collar is a brace like I am wearing now." She continued under the care of Dr. Lucatorto and went to his office two or three times a week, receiving heat treatments and medication. Traction equipment was purchased for home use, and she used it at home almost every day for approximately six hours. She had seen Dr. Leonard Smith, "an orthopedic man," twice — in October of 1964 and on June 7, 1966, during the trial. She also received treatment at the Schmitz Medical Group — "I went there for a physical because of my back and to make sure nothing else was hurting. He didn't find any other problems." At the time of the trial Mrs. Borowicz was still troubled by pain in her neck and shoulder.

Dr. Vito Lucatorto testified at length on behalf of the plaintiffs. He had been a physician and surgeon since 1938 and was engaged in general practice. Mrs. Borowicz came to his office on January 23, 1964, the day following the occurrence, and he had occasion to observe and treat her. He noticed there was limitation of motion in the head and neck, and that she experienced pain and tenderness over the paravertebral muscle in the cervical region. The neck muscles were in spasm and were hard and tender. She had bruise marks on her left shoulder, left thigh and left knee. He ordered X rays taken of her left shoulder, cervical spine and ribs. These X rays were identified by him and were admitted into evidence. He used them in his testimony. On the basis of the X-ray films and clinical examination of the patient, he made a diagnosis that Mrs. Borowicz was suffering a subluxation of the fourth vertebra over the fifth, and in addition there had been both ligamental and muscular injury to the neck; that a torn ligament or muscle heals with scar tissue which does not have the strength of the original tissue. He also identified other X rays taken of Mrs. Borowicz, which were received in evidence.

Dr. Lucatorto saw Mrs. Borowicz fifty times, the last time being on June 6, 1966 (during trial). Her remaining complaint was pain in the neck, some numbness of the left hand, and of feeling dizzy and faint after making any sudden movement toward the left. It was his opinion that the subluxation in Mrs. Borowicz's neck, the numbness and paresthesia of her left hand, the spasm of the muscles of the neck and the other conditions of ill-being which he found as recently as June 6, 1966, were permanent, and she would require treatment for an indefinite period of time.

On cross-examination, Dr. Lucatorto testified that he was a general practitioner and not an expert at reading X rays, although he had been taught to read them in his medical training and read many in the course of his practice. Dr. Lucatorto stated: "The degree of subluxation is determined by the X-ray picture itself. I was able to determine the degree of subluxation in Mrs. Borowicz from the pictures. According to the X-rays it was very evident that the fourth cervical vertebra was pushed forward to the anterior border of the fifth cervical vertebra, its neighboring vertebra below. I would say it was moderate at the beginning."

Defendants then identified certain of their own X-ray exhibits and requested Dr. Lucatorto to read them. He asked to be allowed to read the report of the roentgenologist who made the X-ray pictures. When his request was refused, he said: "But this gives the wrong impression. I am not posing here as a recognized roentgenologist. I am a general practitioner. I am guided by the roentgenologist. If they tell me it is subluxation or possible trauma of recent origin, I believe them. Your questions are unfair." At this point the defendants' counsel stated to the court: "Your Honor, this testimony has all been hearsay." Thereafter, out of the hearing of the jury, defendants asked for a mistrial because of the witness' remark characterizing the defendants' questions as unfair. The motion for a mistrial was denied. The jury was instructed to disregard the remark.

On cross-examination later, Dr. Lucatorto stated his testimony on the X rays of Lillian Borowicz and Catherine McCarthy was based on written reports from the roentgenologist who took the X rays and placed the red marks on the X rays of Mrs. Borowicz for identification purposes. He could read the X rays without the red marks. Dr. Lucatorto could read X rays to a "certain extent. In other words my knowledge of X-ray reading is sufficient. I knew enough about it. I am not an expert on it, but certain things I know."

After further cross-examination as to the X-ray reports, counsel for plaintiffs stated: "I respectfully submit the witness testified he has the roentgenologist's report in writing which he is prepared to produce." Counsel for the defendants replied: "I don't want to see them. . . . They are not in evidence, they can't go in evidence." Also, Dr. Lucatorto said: "I merely was stating the X-ray report of the roentgenologist. . . . This is the roentgenologist's opinion." Counsel for defendants then said: "It is not yours, is that right, sir?" At this point the court said: "Is it yours or not, Doctor? . . . After looking at it, is it your opinion?", and Dr. Lucatorto replied: "It is mine also."

Considered first is defendants' contention that the testimony of Dr. Lucatorto of the alleged pathology shown on the X rays was hearsay and should have been excluded because it was the mere recitation by him of the findings contained in a written report of an unidentified roentgenologist, which report was used extensively in his testimony and was not introduced into evidence.

Defendants argue that although Dr. Lucatorto professed some competence in the reading of X rays, the record demonstrates "that he was almost entirely dependent upon the non-present roentgenologist for the conclusions that he gave at the trial — even to the extent of requiring a red mark on the X-rays to assist him in locating the alleged pathology." Defendants' authorities on this point include an article in 54 IBJ, p 910, headed "The Consulting Specialist: A Necessary or Unnecessary Witness?" (June 1966.) There it is said:

"The Smith exception to the Hearsay Rule [46 Ill. App.2d 117] should be available in all cases where (1) the physician takes an active role in the examination and testing conducted by the specialist, (2) the physician personally diagnoses the ailment, or concurs in the specialist's diagnosis, (3) the physician does not merely read from the report of the consultant, and ...

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