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10/25/89 Ben Fawcett Et Al., v. Raoul Reinertsen Et Al.

October 25, 1989

BEN FAWCETT ET AL., APPELLEES

v.

RAOUL REINERTSEN ET AL. (HEYL, ROYSTER, VOELKER & ALLEN, CONTEMNOR-APPELLANT)



SUPREME COURT OF ILLINOIS

546 N.E.2d 558, 131 Ill. 2d 380, 137 Ill. Dec. 613 1989.IL.1685

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Fulton County, the Hon. Charles H. Wilhelm, Judge, presiding.

APPELLATE Judges:

JUSTICE CLARK delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

Appellees, Ben Fawcett, Gretchen Fawcett, and their daughter, Brooke Fawcett, by her next friends, Ben Fawcett and Gretchen Fawcett, brought a medical negligence action in Fulton County against Dr. Raoul Reinertsen, Dr. Dennis Cappitelli and Graham Hospital Association. Appellees alleged that due to the care and treatment rendered by the defendants, Brooke Fawcett was born prematurely with incompletely developed lungs, resulting in the development of hyaline membrane disease and various other complications.

As part of the pretrial discovery in the case, appellees deposed the defendant-physicians and posed questions concerning the relevant standard of care. On advice of counsel, the physicians refused to answer the questions.

The appellees filed a motion to compel answers to the questions relating to the standard of care. Specifically, the appellees sought answers to the following questions:

(1) "Now, Doctor, is it your testimony that the standard of practice in the United States is not to use both the menstrual history and the height of fundus to determine the menstrual age of the child?"; and

(2) "Do you know of anything that Saint Francis did, either the team as they came to the hospital and took over the care of Brooke and in fact took care of Brooke or Saint Francis in their neonatal unit did, which you believed was not proper or breached the standard of care?"

After a hearing on the motion to compel, an order was entered directing the defendant-physicians to answer the questions. On advice of counsel, the physicians refused to comply with the court's order. Counsel for the physicians were then found to be in contempt of court and fined $25.

The contemnors appealed the finding of contempt, arguing that a defendant-physician in a medical negligence action cannot be compelled to testify as to the standard of care unless he has been disclosed as an expert witness pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). The appellate court rejected this argument and affirmed the finding of contempt. (168 Ill. App. 3d 1090.) We granted leave to appeal (107 Ill. 2d R. 315).

The issue before this court is whether a defendant-physician, who has not been disclosed as an expert witness pursuant to Supreme Court Rule 220, may be compelled to give testimony at a discovery deposition ...


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