APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY 97 L 5306 HONORABLE JENNIFER DUNCAN-BRICE, JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Barth
This appeal is brought by plaintiff Natalie Buckholtz. It flows from her refusal to pay Dr. Ava Adams-Morris a court ordered deposition fee of $375 in an underlying wrongful death suit. After Francis Timons, plaintiff's attorney, requested that the trial court find him in contempt for plaintiff's failure to pay the fee, it did so and fined him $10 for each day the deposition fee remained unpaid. On appeal, plaintiff contends that the trial court erred in finding that Dr. Adams- Morris was entitled to a deposition fee and that the $300 per hour fee it set was unreasonable. Plaintiff and Timons also contend that the trial court's order of contempt should be vacated. BACKGROUND On May 8, 1995, the decedent Frank Stajszczyk died after undergoing femoral popliteal bypass surgery at MacNeal Hospital (MacNeal) in Berwyn, Illinois. Plaintiff, the decedent's daughter, subsequently filed suit alleging negligence against MacNeal, four physicians, one nurse anesthetist and one registered nurse.
In a letter dated April 8, 1998, Timons informed Dr. Adams-Morris, who treated the decedent following his surgery, that he had been granted court permission to subpoena her for a deposition regarding the decedent's medical treatment. The letter stated that Dr. Adams-Morris was not a party to the pending lawsuit and that plaintiff had no intention of naming her as a party. Timons further stated in his letter that "Under court rules, a physician shall be paid a reasonable professional fee for time spent while testifying. This office will gladly pay such a fee." The letter also requested that Dr. Adams-Morris contact Timons to confirm the May 6, 1998, deposition date.
In a May 12, 1998, letter to Timons, Terrence Burns, Dr. Adams- Morris's attorney, confirmed that the deposition date had been changed to June 26, 1998, and stated, "As discussed and agreed, Dr. Morris will be compensated at a rate of $300.00 per hour for her professional services."
In response to Burns's letter, Bruce Pfaff, Timons's associate, wrote on May 14, 1998, that Timons had not spoken to him about the deposition. Pfaff stated however, that he objected to paying Dr. Adams- Morris a professional fee for her time because she was a resident at MacNeal at the time of the decedent's death. In support of his objection, Pfaff noted that the committee comments to Supreme Court Rule 204(c) stated that the "reasonable fee" provisions do not apply to party physicians or physicians "closely associated with a party." According to Pfaff, Dr. Adams-Morris was "closely associated" with one or more defendants in the case.
On May 21, 1998, Dr. Adams-Morris filed a "Motion to Compel Compensation Pursuant to Illinois Supreme Court Rule 204(c)." In the motion, she alleged that because she was neither a party nor "closely associated" with any party involved in the pending litigation, she was entitled to a reasonable fee of $300 per hour, the amount Timons had originally agreed to, for the time she was going to spend at the upcoming deposition.
Following a hearing, on June 5, 1998, the trial court granted Dr. Adams-Morris's motion and determined that she should be paid by plaintiff at the rate of $300 an hour for the time spent testifying at the deposition.
On June 26, 1998, Dr. Adams-Morris was deposed at her attorney's office located in downtown Chicago. In pertinent part, she testified that she was currently an assistant professor of family medicine at Loyola University and worked approximately five half-days a week at Provident Hospital in Chicago. She stated that if she were not testifying at the deposition, she would have been working at Provident. When Timons asked Dr. Adams-Morris whether the time she was missing from her job because of the deposition equated to $300 an hour, her attorney objected on the ground that the question was irrelevant because her fee had already been set.
Dr. Adams-Morris's curriculum vitae disclosed that she was a resident at MacNeal from July 1993 to January 1996, at which time she became a staff physician in the hospital's family practice department. She remained in that position until July 1997. At the time of her deposition, Dr. Adams-Morris was on temporary leave from her position at MacNeal, but retained hospital privileges there. She testified that she was "unsure" whether she would return to work at MacNeal.
In early July, subpoenas for documents regarding Dr. Adams-Morris's income were served upon her and Loyola University, her employer. On July 17, 1998, Dr. Adams-Morris moved and the court heard arguments to quash plaintiff's subpoenas for records. Dr. Adams-Morris argued that the trial court had already ordered she be paid $300 an hour. Timons again objected to paying Dr. Adams-Morris a deposition fee, stating that she was closely related to defendants in the case. He also argued that the $300 per hour deposition fee was unreasonable because she was working only on a part-time basis. The trial court responded that it was not going to continue to "revisit" the issue of Dr. Adams-Morris's fee because it had already ruled that $300 per hour was a reasonable fee.
In granting the doctor's motion, the trial court stated that under Rule 204(c), a doctor was entitled to a reasonable fee for a deposition and that "there are no caveats on that." The trial court referred to Supreme Court Rule 215 (166 Ill. 2d 215), which provided for the payment of physicians' fees for physical or mental examinations based upon "loss of earnings." It observed the supreme court could have inserted the same language in Rule 204(c), but had not.
On July 29, 1998, Dr. Adams-Morris filed a motion to compel plaintiff to comply with the June 5, 1998, order to pay her $375, being the amount she earned at the 1 hour and 15 minute deposition. On August 21, 1998, plaintiff filed a motion that both responded to Dr. Adams- Morris's motion to compel and sought the trial court's reconsideration of the deposition fee. Plaintiff again objected to the fee on the ground that Dr. Adams-Morris was "closely associated" with the defendants in the case. Plaintiff claimed it was "unjust" for her to be required to pay Dr. Adams-Morris to gain information regarding the events surrounding the decedent's death when no other "fact witnesses" are entitled to such a fee. She further argued that the fee should be limited to a sum that would reimburse Dr. Adams-Morris based upon her actual rate of pay.
On September 14, 1998, the trial court granted Dr. Adams-Morris's motion requiring plaintiff to pay the $375 deposition fee and denied plaintiff's motion to reconsider. The trial court stated that Dr. Adams-Morris was not a named defendant in the case and that her employment at MacNeal at the time of the decedent's death did not make her "closely associated" with the hospital. It confirmed its previous award of $375, again noting the dissimilar language contained in Rule 215 and further noting that Dr. Adams-Morris had to prepare for the deposition and travel to downtown Chicago for it. Finally, the court stated that the fee was reasonable based upon the "customs and practices" in Cook County and that it would be a "waste of judicial time" to have a hearing regarding the fee every time a doctor was deposed.
Upon denial of the motion to reconsider, Timons asked the court to find him in contempt for failure to pay the court ordered fee. The trial court found Timons in contempt and imposed a fine of $10 a day for each day the deposition fee remained unpaid. ANALYSIS Plaintiff first contends that based upon the committee comments applicable to Rule 204(c), Dr. ...