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10/17/88 Edna Weber, Adm'x of the v. Edna Weber

October 17, 1988

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION VIRGINIA DUGAN, PLAINTIFF-APPELLEE

v.

EDNA WEBER, ADM'X OF THE ESTATE OF EMIL WEBER, DECEASED, DEFENDANT-APPELLANT



530 N.E.2d 1007, 175 Ill. App. 3d 1088, 125 Ill. Dec. 598 1988.IL.1534

Appeal from the Circuit Court of Cook County; the Hon. Warren Wolfson, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL, P.J., and MANNING J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

This is an appeal by Edna Weber (defendant), substituted defendant and administratrix of the estate of Emil Weber, from a jury's award of $626,000 in a medical malpractice action filed by Virginia Dugan (plaintiff) alleging that Emil Weber, her former podiatrist, negligently performed surgery on plaintiff's bunions, requiring her to undergo additional surgeries and causing her substantial disability. The trial court, partially granting defendant's post-trial motion, reduced this award by $13,000, but assessed costs totaling $1,218 and awarded $500 in attorney fees.

The issues presented for our review are whether defendant was deprived of a fair trial on the question of damages and whether the trial court erred in awarding $500 in attorney fees pursuant to section 2-611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611).

In support of her claim on the issue of damages, defendant alleges four errors that by themselves or in combination denied her a fair trial. First, defendant asserts that she was prejudiced by plaintiff's failure to identify her treating physician, Dr. Rick Albin, as a Rule 220 (107 Ill. 2d R. 220) expert and to disclose his examination of plaintiff on the day of trial. Supreme Court Rule 220 governs the discovery of expert witnesses and requires that upon an interrogatory, a party must disclose the identity of an expert "who is retained to render an opinion at trial." (107 Ill. 2d R. 220(b).) The party must also reveal the substance and basis for the expert's testimony and supplement his answer to interrogatories as additional information becomes known. (107 Ill. 2d Rules 220(a) through (c).) The rule further states that the testimony of the expert at trial may not be inconsistent with or go beyond the fair scope of the facts disclosed. 107 Ill. 2d R. 220(d).

In adopting Rule 220, the supreme court did not state whether the rule covers treating physicians. Nonetheless, lower courts have addressed this issue. In Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 508 N.E.2d 215, appeal allowed (1987), 116 Ill. 2d 552, the court construed the rule's "retained to render an opinion" language not to include treating physicians whose initial relationship with the patient arose and whose opinions were obtained, not in anticipation of trial, but pursuant to the medical assistance rendered. (155 Ill. App. 3d at 590, 508 N.E.2d at 219.) The court based its Conclusion on the supreme court's heavy reliance in drafting Rule 220 on Federal court practice, which distinguishes between experts hired for the sole purpose of litigation and experts who become involved with the patient through medical treatment.

This court has recently expounded on the court's holding in Diminskis. In Ryan v. Mobil Oil Corp. (1987), 157 Ill. App. 3d 1069, 510 N.E.2d 1162, we held that a treating physician who examines plaintiff on the eve of trial to reinforce his opinions developed from his previous treatment of plaintiff for the purpose of preparing for trial does not thereby qualify as an expert subject to Rule 220 disclosure. 157 Ill. App. 3d 1069, 510 N.E.2d 1162.

Diminskis and Ryan control the instant case. Dr. Albin's initial contact with plaintiff occurred through the medical assistance he rendered to plaintiff. After the initial treatment plaintiff received from Dr. Weber, Dr. Albin was plaintiff's treating physician for 2 1/2 years. During that time, he performed over three separate surgeries on plaintiff's feet. Because he had not examined plaintiff in over two years, Dr. Albin examined plaintiff on the eve of trial for the purpose of reinforcing his opinion as to plaintiff's disability. Dr. Albin clearly is not in the same position as a hired expert who becomes associated with the case only at the request of the attorney and for the sole purpose to convey a message to the jury.

Defendant argues that the substance of Dr. Albin's expert testimony at trial, particularly his opinion regarding the extent of plaintiff's disability and whether defendant deviated from the acceptable standard of care, transforms his status as a treating physician to a Rule 220 expert. In effect, defendant maintains that Rule 220 applies whenever the nature or purpose of the physician's testimony is to provide an expert opinion rather than merely to give testimony concerning medical treatment rendered. Diminskis and Ryan, however, clearly demonstrate that Rule 220 governs only those expert witnesses whose relationship with the plaintiff arose solely because the plaintiff retained the physician to render an opinion at trial. The physician's relationship to the case, not the substance of his testimony, qualifies him as a Rule 220 expert.

Defendant next contends that the trial court committed reversible error in submitting Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (hereinafter IPI Civil 2d), which allows the jury to draw an adverse inference from a party's failure to produce evidence or a witness upon a finding that (1) the witness was under the control of the party and could have been produced by the exercise of reasonable diligence, (2) the witness or evidence was not equally available to an adverse party, (3) a reasonably prudent person under the same or similar circumstances would have produced the witness or evidence if he believed the testimony would be favorable to him, and (4) no reasonable excuse for the failure has been shown. The court issued this instruction because defendant failed to produce her expert witness, Dr. Mitchell Sheinkop, and certain surgical X rays. Although the submission of this instruction is warranted only when some foundation evidence is presented on these elements (Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 318, 367 N.E.2d 472, 475), the decision to submit the instruction is within the sound discretion of the court and is subject to reversal only when a clear abuse of discretion appears on the record. Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835, 462 N.E.2d 645; Hicks v. Hendricks (1975), 33 Ill. App. 3d 486, 342 N.E.2d 144.

Defendant asserts that no foundation evidence exists to sustain a finding that defendant acted unreasonably or that the evidence would be unfavorable to her. We find that the circumstances here sufficiently support such a finding. The record discloses no reasonable excuse for defendant's failure to produce the X rays. Two X rays were taken of each foot during the surgery performed by Dr. Weber on plaintiff, and one X ray of both feet was taken the day after the surgery. Defendant never produced these X rays, alleging that they were lost. By contrast, Dr. Ronald Bies, assistant to Dr. Weber's assistant, testified that he mailed all the X rays taken on March 19, 1981, to Dr. Weber in Arizona. Dr. Weber, in his evidence deposition, testified that while not all of the X rays had been mailed, these surgical X rays had been mailed to him.

Nor does the record reveal reasonable diligence on defendant's part in producing Dr. Sheinkop. The trial court denied defendant's request for a continuance because Dr. Sheinkop was vacationing out of the country during the month of August. Defendant had known of the final August trial date since the preceding May, but waited until the week before trial to contact Dr. Sheinkop's office, thereby losing the opportunity to take his evidence deposition. Defendant offered no evidence showing the jury a reasonable excuse for not producing Dr. Sheinkop even though the court provided her the opportunity to do so. Moreover, defendant's lack of due diligence is aggravated by the fact that Dr. Sheinkop returned for a week during the trial yet ...


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