Mondelli v. Checker Taxi Co., Inc.

• Decision Date: 19 January 1990
• Docket Number: No. 1-88-2233,1-88-2233
• Court: United States Appellate Court of Illinois
• Parties: , 143 Ill.Dec. 331 Jill MONDELLI and Eileen Couillard, Plaintiffs-Appellees, v. CHECKER TAXI COMPANY, INC., and Alireza Nazarifroshani, Defendants-Appellants.

Page 266

554 N.E.2d 266

197 Ill.App.3d 258, 143 Ill.Dec. 331

Jill MONDELLI and Eileen Couillard, Plaintiffs-Appellees, v. CHECKER TAXI COMPANY, INC., and Alireza Nazarifroshani Defendants-Appellants.

No. 1-88-2233.

Appellate Court of Illinois,

First District, Fifth Division.

Jan. 19, 1990.

Torshen, Schoenfield & Spreyer, Ltd. (Jerome H. Torshen, Abigail K. Spreyer, of counsel), Jesmer and Harris, Chicago, for defendants-appellants.

John P. Biestek & Associates, Ltd. (Edward A. Scott, III, of counsel), Arlington Heights, for plaintiffs-appellees.

Justice MURRAY delivered the opinion of the court:

Defendants, Checker Taxi Company, Inc. and Alireza Nazarifroshani, appeal from a judgment of the circuit court of Cook County on verdicts returned in favor of plaintiffs, Jill Mondelli and Eileen Couillard, for personal injuries sustained by them when a Checker taxicab operated by Nazarifroshani collided with their automobiles, and the court's order denying their post-trial motion for a new trial or a remittitur of the damages awarded to plaintiffs. Defendants contend that the trial court erred in barring the testimony of one of their medical experts and an investigator, they were denied a fair trial based on the cumulative effect of errors made by the court, and the award of compensatory damages to both plaintiffs was excessive and beyond the limit of fair and reasonable compensation for the injuries proved. For the reasons set forth below, we affirm.

The automobile collision underlying this cause occurred at approximately 1 a.m. on September 5, 1981. Plaintiffs Mondelli and Couillard, who are sisters, had just left a restaurant and were driving their separate cars when defendant's taxicab, driven by Nazarifroshani, collided first with Mondelli's car and then Couillard's. Immediately after the occurrence, plaintiffs were taken to the emergency room of St. Elizabeth's Hospital; Mondelli was x-rayed, given a prescription and discharged and Couillard was x-rayed and discharged. (Plaintiffs subsequent medical history will be discussed later in this opinion as will other facts as they pertain to the various issues raised.)

Plaintiffs filed the instant action on December 30, 1981, and trial commenced on January 13, 1988. Defendants admitted fault and the matter was tried to a jury on the issue of causation and damages. The jury awarded Mondelli $333,256 in compensatory damages and $1,162,500 to Couillard. Defendants' subsequent post-trial motion for a new trial or a remittitur of the damages awarded plaintiffs was denied, and this appeal followed.

Disposition of defendants' first argument, that their expert Dr. Marshall I. Matz was improperly barred from testifying, turns upon the application of the physician-patient privilege rule enunciated in Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill.App.3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952, cert. denied (1987), 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738. Under the rule, ex parte communications between defense counsel and a plaintiff's treating physician are prohibited as against public policy because they jeopardize the sanctity of the confidential and fiducial physician-patient relationship. More particularly, "[d]iscussion of the patient's confidences under circumstances other than through formal discovery is potentially harmful to the interests of the patient in that the physician might disclose intimate facts regarding the patient which are unrelated and irrelevant to the mental or physical condition placed at issue in the lawsuit. [Emphasis added.] * * * A plaintiff should be allowed to protect his physician-patient privilege before it is compromised." (Emphasis in original.) (Karsten v. McCray (1987), 157 Ill.App.3d 1, 14, 109 Ill.Dec. 364, 509 N.E.2d 1376.) Barring the testimony of a plaintiff's treating physician is an appropriate sanction to protect the privilege from defense interviews conducted outside formal discovery. Karsten, 157 Ill.App.3d at 14, 109 Ill.Dec. 364, 509 N.E.2d 1376.

Here, defendants argue that the trial court erred in barring Dr. Matz's testimony based on its determination that a physician-patient relationship existed between him and plaintiff Couillard. They contend that no such relationship existed merely because, as plaintiffs argue, Dr. Matz's office associate, Dr. James Dupre, saw Couillard as a patient shortly after the accident in 1981. More specifically, as argued by defendants in the trial court:

"In September 1981, he [Dr. Dupre] acted on two occasions at Columbus Hospital as a neurological consultant to Dr. James McHugh, the treating physician of Mrs. Couillard at that time. * * * He [Dr. Dupre] was not an attending physician. He didn't see her on a daily basis * * * or anytime after that or anyone else from the office until April or May 1987 when we asked him [Dr. Matz] to review only the CAT scan and x-rays which were taken in November 1982 and sometime in 1984.

* * * * * *

There was no ongoing relationship of this woman with that office. This office was not the attending physician for this woman at that time.

* * * * * *

If I had said to the Court that I had sent those records to Dr. Dupre and Dr. Dupre had reviewed the CAT scans and x-rays some six years later, then I could certainly see the Court saying, * * * you cannot use Dr. Dupre.

We're talking about Matz. We're talking about another doctor in the office in a rather very casual physician-patient relationship. We're not talking about an ongoing relationship that this woman had with the office." (Emphasis added.)

Defendants further point out in their appellate brief that: since Dr. Matz never saw Couillard, he never shared any of her "confidences" and therefore he was not in a position to take unfair advantage of her; his testimony did not pertain to any information obtained by his associate, Dr. Dupre; there is no suggestion that he engaged in any ex parte discussion of confidential information disclosed by Couillard; and there was no showing that Matz was privy to or had access to any confidential or medical information pertaining to Couillard which may have been obtained by Dr. Dupre when he saw her in September 1981 and, in fact, his opinion was sought only as to diagnostic tests and treatment of Couillard from and after November 1982.

We first observe, as defendants themselves point out, any ex parte communication with Dr. Dupre would clearly have been in violation of the physician-patient privilege (i.e., sending the same diagnostic tests to him as they sent to Dr. Matz) prior to trial. We fail to comprehend, therefore, defendants' insistence that Dr. Matz has any less of a confidential and fiducial relationship with Couillard in light of the fact that Dupre is a professional associate in Matz's business office as indicated by a statement from Dr. Dupre to Couillard for services rendered which bears the following information: "Marshall I. Matz, M.D. & David M. Shenker, M.D., S.C.; Neurosurgery, Marshall I. Matz and James F. Dupre (emphasis added); Neurology, David M. Shenker." Moreover, we especially note that both Dr. Dupre and Dr. Matz specialize in neurosurgery, all three doctors practice in the same suite and they have the same telephone number. As an associate of Dr. Matz, Dr. Dupre's status as a treating/"consulting" physician must be imputed to Dr. Matz, requiring application of the physician-patient privilege Petrillo rule concerning any ex parte communications between defense counsel and Dr. Matz. See Ritter v. Rush-Presbyterian-St. Luke's Medical Center (1988), 177 Ill.App.3d 313, 126 Ill.Dec. 642, 532 N.E.2d 327 (a defendant hospital was prohibited from communicating with the plaintiff's treating physicians despite the fact that the physicians were members of the defendant's hospital staff).

We further find without merit defendants' "distancing relationship" theory which would preclude application of the physician-patient privilege. It is unclear whether defendants argued to the trial court that Dr. Dupre's or Dr. Matz's relationship with Couillard was "a rather very casual physician-patient relationship." However, as the trial court so aptly pointed out, the only issue before it was whether a physician-patient relationship existed between Dr. Dupre and Couillard, and thus, by professional association between Dr. Matz and Couillard. More particularly, the court stated that "it would be disasterous if we were to open up a line of cases that would allow this [distancing theory] because then it becomes a question of distance, and the test does not become the doctor-patient relationship anymore, but a question of * * * the quality and extent of the relationship." Accordingly, we hold that a physician-patient relationship existed between both Dr. Dupre and Dr. Matz with Couillard.

Having established the existence of a physician-patient relationship between Dr. Matz and Couillard, we next turn to defendants' argument that Matz never obtained any confidential information from Dr. Dupre concerning Couillard or from Couillard herself, and that since his testimony concerned only diagnostic tests performed after Couillard's association with Dr. Dupre and not any which he might have vicariously obtained from Dr. Dupre, his testimony should not have been barred because it "would not have resulted in the disclosure of patient confidences outside the scope of the Illinois Supreme Court rules pertaining to discovery." In support thereof, defendants rely on Tomasovic v. American Honda Motor Co. (1988), 171 Ill.App.3d 979, 991-92, 121 Ill.Dec. 804, 525 N.E.2d 1111, appeal denied (1988), 122 Ill.2d 595, 125 Ill.Dec. 238, 530 N.E.2d 266, where this court stated:

"Dr. McDonald [defendant's witness] was not called as a treating physician. Instead, he had been an intern who took plaintiff's history. He was called as a person to whom plaintiff made an admission. He testified regarding that recorded admission. Thus, the Petrillo rule is...