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Somers v. Quinn

April 25, 2007


Appeal from the Circuit Court of Lake County. No. 01-L-458 Honorable Margaret J. Mullen, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

Published Opinion

Plaintiff, Jeremy Somers, appeals the judgment of the circuit court that (1) granted defendant Michael J. Quinn's motion in limine to bar the testimony of plaintiff's expert witness regarding the standard of care applicable to defendant's medical treatment of plaintiff, and (2) denied plaintiff's motion for a continuance to find another expert to testify to the standard of care. We affirm.

Plaintiff filed his complaint on June 11, 2001, alleging that defendant was negligent in his treatment of plaintiff's broken leg and that his negligence resulted in injury to plaintiff. On July 5, 2002, pursuant to Supreme Court Rule 213 (210 Ill. 2d Rs. 213(f), (g), (h), (i), (j), (k)), plaintiff disclosed that Dr. Mark Benson would describe at trial the treatment he provided plaintiff in the months following plaintiff's treatment by defendant and would opine that defendant's treatment "was inadequate and below the standard of care."

Dr. Benson sat for a discovery deposition on June 2, 2003. Dr. Benson testified that he acquired medical licenses from Colorado and Wisconsin in 1979. He let his Colorado license expire after one year but retained his Wisconsin license. In 1993, Dr. Benson suffered a cervical spine fracture in an automobile accident. He took hydrocordone for pain relief and became addicted to it. In 1996, the Wisconsin medical licensing board suspended Dr. Benson's medical license after finding that he had taken hydrocordone samples from his office. Dr. Benson testified that he secured periodic stays of the suspension between 1996 and 2002. He further testified that he was twice convicted of attempting to obtain a prescription by fraud, once in May 2000 and again in October 2002. In the spring of 2002, Dr. Benson surrendered his medical license due to vision problems caused by eye ulcerations. Dr. Benson testified that he intended to return to the practice of medicine in August 2003.

In October 2004, the trial court entered an order setting the case for jury trial on May 23, 2005. The order also set April 1, 2005, as the deadline for all motions for involuntary dismissal or summary judgment.

Dr. Benson sat for an evidence deposition on May 20, 2005, three days before trial. He testified that, on August 20, 2003, he petitioned the Wisconsin medical licensing board for reinstatement of his license. On August 29, 2003, the board granted Dr. Benson a limited medical license with the opportunities to apply for consecutive three-month extensions of that limited license. In October 2004, the board found that Dr. Benson had obtained medication by forging prescriptions. Subsequently, Dr. Benson surrendered his license, effective December 15, 2004.

Dr. Benson testified that the board's findings that he had forged prescriptions were false, but acknowledged that he stipulated to those findings in the board's written order accepting the surrender of his license. Dr. Benson admitted that he held no medical license at the time of the deposition.

On May 23, 2005, the day of trial, defendant filed a motion in limine to exclude from evidence the portions of Dr. Benson's evidence deposition in which he testified as to the standard of care applicable to defendant's medical treatment of plaintiff and as to whether defendant's treatment met that standard. Parenthetically we note that defendant did not challenge the admissibility of Dr. Benson's descriptions of his or defendant's treatment of plaintiff. Defendant argued that, because Dr. Benson lacked a medical license at the time of his evidence deposition, his qualifications did not meet the standards for expert medical witnesses set forth in section 8--2501 of the Code of Civil Procedure (the Code) (735 ILCS 5/8--2501 (West 2004)). Defendant attached to his motion a copy of a December 15, 2004, decision of the Wisconsin medical licensing board finding that Dr. Benson "committed unprofessional conduct" by forging prescriptions on two occasions in October 2004. The decision noted that Dr. Benson had voluntarily surrendered his Wisconsin medical license effective immediately.

The record contains no transcript of the hearing on defendant's motion. The trial court issued a written order in which it found that section 8--2501 of the Code categorically required that an expert be licensed to practice medicine at the time he testified to the applicable standard of care in a medical malpractice case. The trial court also held that, even if it had discretion to decide whether to allow Dr. Benson's testimony, it would still exclude the testimony. Accordingly, the trial court granted the motion to bar Dr. Benson's testimony relating to the standard of care applicable to defendant. Plaintiff then moved for a continuance of the trial for the purpose of retaining another expert. The trial court denied the motion on the ground that plaintiff "was not duly diligent." The parties stipulated that, in the absence of Dr. Benson's testimony, plaintiff would present no evidence on the standard of care. Defendant then moved for a directed verdict, which the trial court granted. Plaintiff filed this timely appeal.

Plaintiff challenges the trial court's decision barring Dr. Benson's testimony on the ground that he lacked a medical license at the time he gave his evidence deposition. The plaintiff in a medical malpractice action must prove: (1) the proper standard of care against which the defendant's conduct is measured; (2) a negligent failure to comply with the applicable standard; and (3) a resulting injury proximately caused by the defendant's want of skill or care. Jinkins v. Evangelical Hospitals Corp., 336 Ill. App. 3d 377, 382 (2002). " 'Unless the physician's negligence is so grossly apparent or the treatment so common as to be within the everyday knowledge of a layperson, expert medical testimony is required to establish the standard of care and the defendant physician's deviation from that standard.' " Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004), quoting Purtill v. Hess, 111 Ill. 2d 229, 242 (1986).

At the time of this case, section 8--2501 of the Code contained four factors for the trial court to consider in qualifying an expert witness, including whether the witness was licensed in the same profession as the defendant. 735 ILCS 5/8--2501(c) (West 2004). This section provides in relevant part:

"Expert Witness Standards. In any case in which the standard of care applicable to a medical professional is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.

(a) Whether the witness is board certified or board eligible in the same specialties as the defendant and is familiar with the same medical problem or problems or the type of treatment administered in the case;

(b) Whether the witness has devoted 75% of his or her time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains;

(c) whether the witness is licensed by any state or the District of Columbia in the same profession as the defendant; and

(d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State." 735 ILCS 5/8--2501 (West 2004).

As to plaintiff's first contention, our standard of review is de novo because the construction of a statute is a question of law. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006), citing In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000). Our primary objective is to ascertain and give effect to the intention of the legislature. DeLuna, 223 Ill. 2d at 59, citing Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). When the language of a statute is clear and unambiguous, a court must give effect to the plain and ordinary meaning of the language without resort to other tools of statutory construction. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 255 (2004), citing Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). " 'One of the fundamental principles of statutory construction is to view all provisions of an enactment as a whole. Words and phrases should not be construed in isolation, but must be interpreted in light of other relevant provisions of the statute.' " Raintree Homes, Inc., 209 Ill. 2d at 255-56, quoting Michigan Avenue National Bank, 191 Ill. 2d at 504.

Section 8--2501 of the Code provides standards that the trial court shall apply in medical malpractice cases "to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care." 735 ILCS 5/8--2501 (West 2004); see also Thompson v. Gordon, 221 Ill. 2d 414, 433 (2006). The plain language of section 8--2501 does not impose a mandatory licensure requirement. Instead, the statute leaves the admission of the expert's testimony to the determination and discretion of the trial court. The legislature could have imposed a mandatory licensure requirement had it wished to do so, and we will not read such a requirement into the statute. See Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 398-99 (2004) (noting that the appellate court may not read into a statute exceptions, limitations, or conditions not expressed by the legislature).

Plaintiff argues that subsections (a) through (d) are not "necessarily mandatory," but instead are "factors *** to be applied by the court in making its determination." We find plaintiff's argument persuasive and determine that the plain language of the statute is controlling. We determine that it is inappropriate to disregard statutory authority governing the admission of expert testimony in medical malpractice cases and to instead decide the case based upon other common-law requirements for the competency of a medical expert. See 735 ILCS 5/1--104 (West 2004) (providing that supreme court may not make rules governing civil practice and procedure that are inconsistent with the provisions of the Code). This court should also not ignore section 8--2501 of the Code simply because our supreme court has not yet had occasion to address its meaning or effect as it would specifically apply to the circumstances presented in this case.

Furthermore, the special concurrence applies Sullivan beyond its facts to determine that Sullivan is controlling and requires that licensure must exist at the time the witness testifies. The special concurrence states:

"The supreme court held in Sullivan that ' "in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein." ' (Emphasis added.) Sullivan, 209 Ill. 2d at 114, quoting Dolan, 77 Ill. 2d at 285. *** Sullivan can be read but one way: the testimony of a witness cannot be considered competent medical opinion testimony unless the witness holds a medical license at the time of the testimony." Slip op. at 21.

There is nothing in Sullivan or common experience that implies or concludes that expertise exists solely and dependently on the existence of a license and that, upon termination of the license, regardless of cause, the expertise fades to black and is lost until the license is ...

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