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06/21/95 GERRIT E. JAGER v. JOHN L. LIBRETTI

June 21, 1995

GERRIT E. JAGER, JR. AND LISA JAGER, PLAINTIFFS-APPELLEES,
v.
JOHN L. LIBRETTI, IV, DEFENDANT-APPELLANT. FEDERAL KEMPER INSURANCE COMPANY A/S/O GERRIT JAGER, PLAINTIFF-APPELLEE, V. JOHN L. LIBRETTI, IV, DEFENDANT-APPELLANT



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS J. CONDON JUDGE PRESIDING.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, J., and Cerda, J. concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Gerrit E. Jager, Jr. (Jager) was involved in a rear end automobile accident with defendant, John Libretti. Jager and his wife, Lisa, filed a two-count complaint against defendant. The first count stated a cause of action for injuries Jager sustained in the accident, and the second count stated a cause of action on behalf of Jager's wife for loss of consortium. Federal Kemper, the Jagers' insurer, filed a separate subrogation action against defendant, which was then consolidated with the Jagers' suit. The case was tried before a jury in the municipal division of the circuit court of Cook County. The jury found for the plaintiffs in the following amounts: for Gerrit Jager, $56,283.57; for Lisa Jager, $2,000; and for Federal Kemper, $6,436.49. The trial court entered judgment on the verdict.

On appeal, defendant claims the following: (1) the trial court erred when it refused to allow defendant to cross-examine plaintiff's treating physician regarding emergency room records; (2) the trial court erred when it submitted only two verdict forms, rather than the six separate forms proffered by defendant; (3) the trial court erred when it refused to tender an Illinois Pattern Jury Instruction regarding impeachment by prior inconsistent statements or conduct; (4) the trial court erred when it refused to grant a mistrial when plaintiff's attorney questioned defendant about insurance; and (5) the trial court erred when it entered judgment upon the jury's verdict which was in excess of plaintiff's ad damnum clause. We find defendant's arguments to be without merit, and affirm the judgment of the trial court.

The facts giving rise to this suit are as follows. On May 6, 1992, Jager's vehicle was stopped at a railroad crossing when defendant's car struck Jager's car from the rear. Jager's car sustained damage to the rear bumper. Jager was taken to the emergency room at Christ Hospital, where he was examined and released. The next day he returned to work, but later that day left to go to Palos Community Hospital. Plaintiff's treating physician, Dr. Bhoopal, described Jager' s injury as "whiplash" and prescribed conservative physical therapy. Jager attended a total of nine sessions of therapy during a three-week period. The totals of Jager's medical bills were $2,700. Jager remained away from work for about six weeks. Count I of the complaint, which stated the cause of action for Jager's injuries, prayed for damages not to exceed $15,000.

We first address defendant's argument that the trial court erred when it prevented him from cross-examining Dr. Bhoopal regarding emergency room records and the ambulance report. On direct examination, Dr. Bhoopal testified that he first saw Jager on May 12, 1992, six days after the accident. He further testified that on May 12, he examined Jager and prescribed pain medication for him. According to Dr. Bhoopal, he also prescribed for Jager nine sessions of physical therapy over a three week period. Lastly, Dr. Bhoopal testified that it was his medical opinion that Jager suffered from "whiplash" due to the automobile accident on May 6, 1992.

On cross-examination, defense counsel tendered a copy of the Christ Hospital Medical emergency room records and then began cross-examining Dr. Bhoopal as to their contents. Plaintiff's counsel made an objection to the cross-examination, which the trial court sustained. Defense counsel also sought to cross-examine Dr. Bhoopal with regard to an ambulance report. The trial court, sua sponte, prevented defendant from cross-examining Dr. Bhoopal as to the ambulance report. The emergency room records and the ambulance report show that Jager did not complain of neck discomfort to either the physician who treated him at the Christ Hospital emergency room or to the ambulance technician. Defendant claims that it was error for the trial court to prevent him from cross-examining Dr. Bhoopal concerning these records.

It is plain that if Dr. Bhoopal relied on the Christ Hospital emergency room records or the ambulance report in forming his opinion, defendant could have properly cross-examined Dr. Bhoopal regarding their contents. See People v. Pasch (1992), 152 Ill. 2d 133, 178, 604 N.E.2d 294, 312, 178 Ill. Dec. 38; see also Federal Rules of Evidence 705. Moreover, a medical expert may be cross-examined as to records which he reviewed but which he did not rely upon. Piano v. Davison (1987), 157 Ill. App. 3d 649, 671-72, 510 N.E.2d 1066, 1082, 110 Ill. Dec. 35. In the present case, defendant argues adamantly that Dr. Bhoopal relied on the emergency room records and the ambulance report to form his opinion. In support of his position that "The doctor unequivocally testified that he personally relied on the contents of the underlying reports in forming his opinions regarding the plaintiff's injuries, treatment and prognosis," defendant offers the following testimony on cross-examination of Dr. Bhoopal:

Q: Doctors such as yourself often rely on emergency room records, correct doctor?

A: That's correct.

Q: And it's just common practice to rely on these documents, isn't it?

A: That's correct.

Q: And you rely on these documents, again, in determining what type of treatment plan or diagnosis to make in regards to a patient, correct.

A: That's correct.

Q: Doctor, I'm showing you what's been marked Defendant's Exhibit Number Two for identification. Could you please tell me what this is a copy of?

A: This is a copy of the emergency room record at Christ Hospital.

Q: And, again, these are documents -- this particular type of document is the type that doctors rely on, correct.

A: That's correct.

Q: Now, doctor, you also have occasion to come across the various ambulance reports that go along with ...


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