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05/04/88 Ben Fawcett Et Al., v. Raoul Reinertsen Et Al.

May 4, 1988

BEN FAWCETT ET AL., PLAINTIFFS-APPELLEES

v.

RAOUL REINERTSEN ET AL., DEFENDANTS-APPELLANTS (GRAHAM HOSPITAL ASSOCIATION, DEFENDANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

523 N.E.2d 382, 168 Ill. App. 3d 1090, 119 Ill. Dec. 774 1988.IL.672

Appeal from the Circuit Court of Fulton County; the Hon. Charles H. Wilhelm, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On November 14, 1985, plaintiffs Ben Fawcett, Gretchen Fawcett, and their daughter, Brooke Fawcett, filed a medical malpractice action in the circuit court of Knox County against Dr. Raoul Reinertsen, Dr. Dennis Cappitelli and Graham Hospital Association, alleging, inter alia, that the defendants' negligent care, diagnoses and surgical procedures surrounding the birth of Brooke Fawcett caused the pre-term birth of the child with resultant defects. Co-defendant Graham Hospital Association is not directly involved in the instant appeal. Subsequently, the matter was removed to the circuit court of Fulton County on the defendants' motion. Preliminary pretrial was set for June 3, 1986. On June 4, 1986, an order was entered requiring plaintiffs to identify their expert witnesses by April 15, 1987, and requiring the defendants to identify their experts by June 15, 1987.

On January 30, 1987, plaintiffs notified defendants that the discovery deposition of defendant Dr. Reinertsen would be taken on March 5, 1987. On March 9, 1987, the discovery deposition of defendant Dr. Cappitelli was taken. During both of these depositions, plaintiffs asked defendants questions as to the applicable standard of care. Defense counsel objected to these questions, arguing that the defendant physicians had not been previously identified as expert witnesses pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), and that the questions related to matters of expert opinion. Defense counsel then directed the defendants not to answer the questions relating to the standard of care.

On March 16, 1987, plaintiffs filed a motion to compel answers to oral interrogatories and a motion to extend time for submission of expert witnesses. Memoranda in opposition and in support were subsequently submitted. Then on April 2, 1987, the trial court issued a memorandum opinion compelling defendant physicians to answer the deposition questions regarding standard of care and practice. Defendants refused to answer such questions, and on July 13, 1987, plaintiffs filed a motion to find the defendants in contempt for failing to appear for the court-ordered depositions. On August 12, 1987, defense counsel was found in contempt for failing to comply with the prior order compelling the defendants to answer the questions relating to the standard of care and fined $25. Defendants now appeal, requesting this court to reverse the trial court's orders of April 2, 1987, and August 12, 1987.

Defendants' sole contention on appeal is that a party defendant in a medical malpractice action cannot be compelled to give expert testimony at a discovery deposition regarding the relevant standard of care, unless the physician has been disclosed as an expert witness pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). The plaintiff, relying upon a decision by the First District Appellate Court (Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 508 N.E.2d 215), argues that the defendants are treating physicians and, therefore, are not subject to Rule 220 (107 Ill. 2d R. 220), which requires the disclosure of expert witnesses.

Supreme Court Rule 220 (107 Ill. 2d R. 220) provides in pertinent part:

"(b) Disclosure.

(1) Expert witness. Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:

(i) ascertain the identity of such witnesses, and

(ii) obtain from them the opinions upon which they may be ...


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