Montes v. Mai

Opinion

FOURTH DIVISION February 25, 2010

No. 1-08-2774

NORMA MONTES, ) Appeal from the ) Circuit Court of Plaintiff, ) Cook County ) v. ) ) CARTER MAI, ) Honorable ) Kathy M. Flanagan, Defendant-Appellee ) Judge Presiding. ) (Fernando Perez, ) ) Third-Party Respondent-Appellant.) )

JUSTICE GALLAGHER delivered the opinion of the court:

The primary issue to be decided in this appeal is whether a chiropractor is a “physician”

under Illinois Supreme Court Rule 204(c) (166 Ill. 2d R. 204(c)) and is therefore entitled to be

paid “a reasonable fee” for time spent testifying in a discovery deposition in a case in which he is

not a party. For the reasons set forth below, we conclude that the term “physician” as used in

Rule 204(c) includes chiropractors, and we affirm the hourly fee set by the trial court for the

chiropractor’s deposition. In addition, we vacate the trial court’s order of contempt against the

chiropractor in this case. 1-08-2774

BACKGROUND

In 2007, plaintiff Norma Montes brought an action against Carter Mai for injuries

sustained when the car in which she was a passenger was struck by Mai’s vehicle. Dr. Fernando

Perez, a chiropractor with the Neck and Back Clinic in Chicago, treated Montes after the

accident. Dr. Perez is not a party to the lawsuit; he is a third-party subpoena respondent.

In May 2008, Mai subpoenaed Dr. Perez to testify at a discovery deposition regarding the

chiropractic services he provided to Montes. Derrick D. Wallery, the president of the Neck and

Back Clinic, responded in writing that “Dr. Perez’s fee for Depositions is $550 per hour and must

be paid in advance with a two hour minimum” and that Dr. Perez was unavailable at the requested

date and time. Mai’s counsel responded with an offer of $300 per hour for Dr. Perez’s deposition

time with no minimum payment or prepayment. That offer was refused.

The Neck and Back Clinic submitted financial records for the trial court’s in camera

review to determine whether $550 was a reasonable hourly fee for Dr. Perez’s deposition

testimony. On July 30, 2008, after reviewing the submitted documentation, the court ruled that

an hourly fee of $66.95 was reasonable, with no minimum payment or prepayment.

In response to that ruling, Dr. Perez refused to be deposed, and he sought to appeal the

trial court’s order pursuant to Illinois Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)),

challenging the $66.95 hourly fee as “fundamentally unfair” given the financial data provided to

the court. On September 15, 2008, the trial court denied Dr. Perez’s request for a Rule 304(a)

finding and held Dr. Perez in contempt for refusing to appear for his deposition pursuant to

subpoena, fining him $50. The fine was stayed pending Dr. Perez’s appeal of the July 30, 2008,

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order. Dr. Perez now appeals the July 30, 2008, order under Illinois Supreme Court Rule

304(b)(5) (210 Ill. 2d R. 304(b)(5)), which governs appeals from orders finding a person in

contempt with a monetary or other penalty without the requirement of a special finding under

Rule 304(a).

ANALYSIS

On appeal, Dr. Perez contends that the trial court abused its discretion in ordering him to

accept a $66.95 hourly fee for his deposition testimony when the documentation submitted to the

court supported a higher amount. He also argues that the court erred in holding him in contempt

and imposing a monetary sanction when his refusal to participate in the deposition was in good

faith.

We agree with Mai, however, that the first question to be answered is whether Dr. Perez,

as a chiropractor, is a “physician” under Rule 204(c) entitled to a reasonable fee for his discovery

deposition testimony. Neither party raised that issue in the trial court.

Rule 204(c) states:

“The discovery depositions of nonparty physicians being deposed in their

professional capacity may be taken only with the agreement of the parties and the

subsequent consent of the deponent or under a subpoena issued upon order of

court. A party shall pay a reasonable fee to a physician for the time he or she will

spend testifying at any such deposition. Unless the physician was retained by a

party for the purpose of rendering an opinion at trial, or unless otherwise ordered

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by the court, the fee shall be paid by the party at whose instance the deposition is

taken.” 166 Ill. 2d R. 204(c).

Mai contends that the term “physician” as used in the rule does not refer to chiropractors

and that Dr. Perez is therefore only entitled to the statutory witness fee of $20 per day plus 20

cents per mile of necessary travel. See 705 ILCS 35/4.3(a) (West 2000). Although Mai waived

the issue of Rule 204(c)’s applicability to chiropractors by failing to raise that argument in the trial

court, waiver is a limitation on the parties and not on the court, and we may consider an issue not

raised in the trial court if the issue is one of law and is fully briefed by the parties. See Petre v.

Cardiovascular Consultants, S.C., 373 Ill. App. 3d 929, 938, 871 N.E.2d 780, 789 (2007).

No Illinois case has defined “physician” as that term is used in Rule 204(c). See generally

T. Harris, Fees for Physician Testimony: What’s Reasonable?, 96 Ill. B.J. 460, 462 (2008).

Although a supreme court rule is not a statute enacted by the Illinois legislature, the interpretation

of a rule involves application of the same standards used in statutory interpretation. Longstreet v.

Cottrell, Inc., 374 Ill. App. 3d 549, 552, 871 N.E.2d 72, 74 (2007); Buckholtz v. MacNeal

Hospital, 313 Ill. App. 3d 521, 525, 729 N.E.2d 949, 953 (2000).

The words utilized by the Illinois Supreme Court should be given their plain, ordinary and

popularly understood meanings. Longstreet, 374 Ill. App. 3d at 552, 871 N.E.2d at 74. The

word “physician” has been defined as “a person skilled in the art of healing: one duly authorized

to treat disease: a doctor of medicine” (Webster’s Third New International Dictionary 1707

(1986)) and also as “[a] practitioner of medicine; a person duly authorized or licensed to treat

diseases; one lawfully engaged in the practice of medicine.” Black’s Law Dictionary 1147 (6th

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ed. 1990).

A 1917 Illinois Supreme Court case defined “physician” as “one versed in or practicing the

art [of] medicine, and the term is not limited to the disciples of any particular school.” People ex

rel. Gage v. Siman, 278 Ill. 256, 115 N.E. 817 (1917) (holding that although an osteopathic

physician does not use medicine or operate on patients, he treats patients for physical ailments and

thus is a “physician” under the Vital Statistics Act). The supreme court further stated:

“The term ‘medicine’ is not limited to substances supposed to possess curative or

remedial properties, but has also the meaning of the healing art, – the science of

preserving health and treating disease for the purpose of cure, – whether such

treatment involves the use of medical substances or not.” Siman, 278 Ill. at 257.

In the current version of the Medical Practice Act of 1987 (225 ILCS 60/2 (West 1998)),

the legislature’s definition of “physician” expressly includes both medical doctors and

chiropractors, describing a “physician” as “a person licensed * * * to practice medicine in all of its

branches or a chiropractic physician licensed to treat human ailments without the use of drugs and

without operative surgery.”

Also, as Dr. Perez points out, the Illinois Supreme Court discussed physicians and

chiropractors in Vuagniaux v. Department of Professional Regulation, 208 Ill. 2d 173, 802

N.E.2d 1156 (2003), where Vuagniaux, a chiropractor, was reprimanded by the Department of

Professional Regulation and fined for violating advertising provisions of the Medical Practice Act.

Among the points raised by Vuagniaux was that the Medical Disciplinary Board’s makeup of

seven voting members but only one chiropractor violated his due process and equal protection

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rights because only chiropractors should determine discipline for other chiropractors. In rejecting

Vuagniaux’s contention and holding that the board’s composition met the rational basis test and

that medical doctors could sit in review of chiropractors, the supreme court stated:

“While chiropractors may once have been ostracized by certain segments of the

medical community, the Medical Practice Act treats them as full and equal

members of the medical profession. Under the law, those holding the degree of

doctor of chiropractic possess precisely the same professional stature as those

holding degrees as doctors of medicine or doctors of osteopathy. All are regarded

as physicians.” Vuagniaux, 208 Ill. 2d at 197, 802 N.E.2d at 1170-71.

Turning to the scope to be given the term “physician” in Rule 204(c), Mai points out that

under a previous version of the rule, reasonable fees could be paid to “a physician or surgeon” and

that the term “surgeon” was deleted as redundant (see 166 Ill. 2d R. 204(c), Committee

Comments)). Mai argues that the remaining word “physician,” therefore, is intended to include

only a medical doctor such as a surgeon, to the exclusion of other health care professionals. We

point out, however, that the word “surgeon” also could have been deemed redundant because all

surgeons are physicians.

Rule 204(c) is a discovery rule, the purpose of which is to enable attorneys to better

prepare and evaluate their cases. Biehler v. White Metal Rolling & Stamping Corp., 30 Ill. App.

3d 435, 441-42, 333 N.E.2d 716, 721-22 (1975). Here, the discovery deposition of Dr. Perez, as

the plaintiff’s treating chiropractor, would assist defense counsel in assessing the extent of

Montes’ injuries. The payment of a “reasonable fee” pursuant to Rule 204(c) is warranted to

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assure Dr. Perez’s cooperation and to compensate him for his time. We conclude that the term

“physician,” as used in Rule 204(c), is intended to encompass a treating chiropractor and that a

chiropractor therefore is entitled to a reasonable fee for time spent in a discovery deposition in a

case in which he or she is not a party.

Having concluded that Dr. Perez is entitled to a “reasonable fee” for his deposition time

pursuant to Rule 204(c), we next consider whether the $66.95 hourly fee ordered by the trial

court was unreasonable. As stated earlier, Dr. Perez sought $550 per hour for his deposition

testimony, with prepayment and a two-hour minimum, and opposing counsel offered $300 per

hour, which was refused. After the trial court reviewed personal and corporate records submitted

by Dr. Perez, the court ruled that $66.95 per hour was a reasonable fee for his deposition time,

with no pre-payment or minimum payment.

Dr. Perez contends that because Rule 204(c) does not set out a basis to establish a

“reasonable fee,” one method is for the trial court to consider the “relevant marketplace or the

doctor’s actual experience” and consider documents or testimony. Dr. Perez notes that the trial

court heard no testimony and made no inquiries of Dr. Perez’s employer, who was present in

court.

Dr. Perez further argues that the documents submitted to the trial court established that

the Neck and Back Clinic generated $1,750 per hour of operation. That documentation, which is

included in the record on appeal, consists of: (1) an analysis of services that Dr. Perez’s medical

practice group provided to all patients from January through June 2008; (2) the Neck and Back

Clinic’s 2007 corporate income tax return; (3) an employment record of the days on which Dr.

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Perez worked from January to July 2008; and (4) a “site performance summary” and “year to

prior year comparison” of the medical practice group.

A trial court’s order concerning a discovery matter will not be disturbed on appeal without

an affirmative and clear showing by the appellant, who in this case is Dr. Perez, of an abuse of the

court’s discretion. See Buckholtz, 313 Ill. App. 3d at 526-27, 729 N.E.2d at 954. A reviewing

court will find an abuse of discretion only where no reasonable person would adopt the trial

court’s view. Compton v. Country Mutual Insurance Co., 382 Ill. App. 3d 323, 331, 887 N.E.2d

878, 886 (2008).

Although we lack a report of proceedings as to this portion of the court’s ruling, the trial

court’s order of July 30, 2008, explains the court’s calculation of the $66.95 hourly fee for Dr.

Perez’s deposition testimony. The order states that the fee is “based upon [Dr. Perez’s] 2007 W-

2 income, divided by 52 weeks at 40 hours [per] week.” The record does not include a copy of

Dr. Perez’s 2007 W-2 form. The appellant carries the burden of presenting a sufficiently

complete record of the proceedings to support a claim of error, and without such a record, it is

presumed that the trial court’s order conformed with the law and had a sufficient basis in fact.

Foutch v. O’Bryant, 99 Ill. 2d 389, 394, 459 N.E.2d 958, 960 (1984). This court has noted that

it would not reverse the trial court’s ruling on the reasonableness of a fee under Rule 204(c) in the

absence of a transcript or bystander’s report of the hearing at which the trial court determined the

hourly rate. Buckholtz, 313 Ill. App. 3d at 526-27, 729 N.E.2d at 953-54.

Mai states in his brief that Dr. Perez’s 2007 W-2 form listed his annual income as

$139,000, which, using the trial court’s formula, results in a rate of approximately $66 per hour.

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As to Dr. Perez’s presentation of records from the Neck and Back Clinic, the amount of revenue

that the clinic took in hourly is not equivalent to the amount paid to Dr. Perez per hour.

We emphasize that the trial court’s method is not the only means by which a fair and

reasonable fee can be calculated; indeed, myriad ways exist to fairly and reasonably compensate a

physician for his or her time. Under the admittedly deferential standard by which we assess the

trial court’s method, we affirm the court’s calculation of an hourly fee of $66.95 for Dr. Perez’s

deposition testimony. Patently, the best approach is for a physician and the party seeking the

deposition to discuss the matter and reach an agreement.

Furthermore, we affirm the portion of the trial court’s order stating that Mai was not

required to pay a two-hour minimum or prepay the fee for Dr. Perez’s testimony. The order

noted that after one hour of deposition testimony, the fee owed to Dr. Perez would be prorated at

15-minute increments. Rule 204(c) provides that the deposition fee is owed “for the time he or

she will spend testifying at any such deposition.” 166 Ill. 2d R. 204(c). The committee comments

to Rule 204(c) explain that the fee “should be paid only after the doctor has testified, and it should

not exceed an amount which reasonably reimburses the doctor for the time he or she actually

spent testifying at deposition.” 166 Ill. 2d R. 204(c), Committee Comments. The trial court’s

order reflects the supreme court’s intended application of the rule and reasonably compensates

Dr. Perez for the time spent testifying.

Lastly, Dr. Perez asks this court to vacate the trial court’s September 15, 2008, order of

contempt because Dr. Perez’s refusal to comply with the court’s discovery order was not made

out of disrespect for the court’s authority but, rather, to provide a good-faith challenge to the

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court’s ruling. Addressing similar situations, this court has noted that exposure to a contempt

finding is an appropriate method of testing the validity of a court order. In re Marriage of Beyer

& Parkis, 324 Ill. App. 3d 305, 321-22, 753 N.E.2d 1032, 1046 (2001); see also Buckholtz, 313

Ill. App. 3d at 527, 729 N.E.2d at 954. Here, because the refusal to comply with the court’s

order reflected a good-faith effort to obtain a ruling on the applicability of the “reasonable fee”

language of Rule 204(c) to Dr. Perez as a chiropractor, an issue on which no direct precedent

existed, we vacate the finding of contempt entered by the trial court against Dr. Perez.

CONCLUSION

Supreme Court Rule 204(c), which provides for the payment of reasonable fees to

“physicians” for time spent in discovery depositions, applies to Dr. Perez as a chiropractor.

Furthermore, the trial court’s calculation of $66.95 per hour as a reasonable fee for Dr. Perez’s

deposition time was not an abuse of the court’s discretion, and the trial court’s contempt order

against Dr. Perez is vacated.

Affirmed in part and vacated in part; cause remanded.

O’MARA FROSSARD, P.J., and O’BRIEN, J., concur.