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12/21/88 Patrice Wilson, v. the Chicago Transit

December 21, 1988

PATRICE WILSON, APPELLEE

v.

THE CHICAGO TRANSIT AUTHORITY, APPELLANT



SUPREME COURT OF ILLINOIS

533 N.E.2d 894, 126 Ill. 2d 171, 127 Ill. Dec. 812 1988.IL.1842

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. James S. Quinlan, Jr., Judge, presiding.

Rehearing Denied January 30, 1989

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court. JUSTICE RYAN, Dissenting. MORAN, C.J., and MILLER, J., join in this Dissent. JUSTICE MILLER, also Dissenting. MORAN, C.J., joins in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

Plaintiff, Patrice Wilson, brought suit against defendant, Chicago Transit Authority, for personal injuries she allegedly sustained alighting from one of defendant's buses on January 16, 1982. The jury returned a verdict for the plaintiff in the amount of $21,000, reduced by 10% due to her comparative negligence. The circuit court entered judgment in the amount of $18,900, and denied defendant's motion for a new trial and remittitur.

The appellate court affirmed the judgment of the circuit court (159 Ill. App. 3d 1043), and denied defendant's petition for rehearing. We granted defendant's petition for leave to appeal (107 Ill. 2d R. 315).

The issue is whether plaintiff's expert witness, a treating physician who acquired information during his treatment of plaintiff three years, seven months before the date of trial, and who updated his diagnosis by conducting an examination of plaintiff on the day he testified at plaintiff's trial, was still a treating physician, or whether he was an expert subject to Supreme Court Rule 220 (107 Ill. 2d R. 220).

Plaintiff was injured when she was exiting defendant's bus on January 16, 1982. Plaintiff's personal physician, Dr. Linguido, referred plaintiff to Dr. Treister, an orthopedic specialist. Plaintiff was treated by Dr. Treister from January 26, 1982, until April 24, 1982. The trial was held in the circuit court of Cook County in November 1985. Dr. Treister testified for plaintiff on the last day of trial. Dr. Treister was tendered by plaintiff, and accepted by the circuit court, as an expert. Dr. Treister testified as to the period of time, between January and April of 1982, during which he treated plaintiff. Defendant did not object to the testimony of Dr. Treister concerning his treatment, care, diagnosis and opinion as to the cause of plaintiff's injury. Defendant did object to plaintiff's question directed to Dr. Treister concerning the permanency of plaintiff's injuries.

Plaintiff had listed Dr. Treister as an attending physician in her "Notice of Personal Injury" received by defendant on March 22, 1982. Plaintiff listed Treister Orthopedic Services as a consulting physician in her answer to defendant's interrogatories in February 1983. Although it does not appear from the record that plaintiff was requested to do so, plaintiff filed amended answers to defendant's interrogatories in March 1985. Plaintiff listed Treister Orthopedic, Ltd., as having treated her from January 26, 1982, to April 24, 1982.

Defendant argued in the circuit court that Dr. Treister should not be allowed to give his opinion on the permanency of plaintiff's injuries based on an examination which had occurred over three years and seven months in the past. Defendant relied on Henricks v. Nyberg, Inc. (1976), 41 Ill. App. 3d 25, which held that "an opinion held by an expert at the time of trial is the only opinion evidence which may be considered by the trier of fact." 41 Ill. App. 3d at 28.

During a hearing out of the presence of the jury, plaintiff attempted to elicit Dr. Treister's opinion on the permanency of plaintiff's injuries through a hypothetical question. The circuit court granted defendant's objection to this question based on the rule of Henricks. It was at this time that Dr. Treister volunteered, "Your Honor, I briefly saw the patient today and got --." Because of the revelation that a recent examination had taken place, the circuit court allowed Dr. Treister to give his opinion on the permanency of plaintiff's injuries.

Defendant argued that Dr. Treister's opinion evidence violated Supreme Court Rule 220. The circuit court ruled that Supreme Court Rule 220 was not applicable to treating physicians. Defendant now argues that, for purposes of rendering opinion testimony on the permanency of plaintiff's injuries, Dr. Treister was no longer a treating physician, but an expert witness subject to Rule 220. Defendant asserts that it should have been "entitled to rely upon the protection of Rule 220 in preparing its defense." Since plaintiff's amended answers to defendant's interrogatories, which defendant received in March 1985, showed that plaintiff was last seen by a doctor in April 1982, defendant argues that it should have been able to "reasonably prepare its defense secure in the knowledge that, without an expert witness and a recent examination, an opinion on permanency could ...


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