Moore v. Centreville Tp. Hosp.

• Decision Date: 25 June 1993
• Docket Number: No. 5-90-0660,5-90-0660
• Citation: 616 N.E.2d 1321,186 Ill.Dec. 689,246 Ill.App.3d 579
• Parties: , 186 Ill.Dec. 689 Russell MOORE, Plaintiff-Appellee, v. CENTREVILLE TOWNSHIP HOSPITAL, Defendant-Appellant and Third-Party Plaintiff/Separate Appellee (Albert J. Davinroy, d/b/a Davinroy Heating & Plumbing Company, Third-Party Defendant-Appellant and Separate Appellant).
• Court: United States Appellate Court of Illinois

Page 1321

616 N.E.2d 1321

246 Ill.App.3d 579, 186 Ill.Dec. 689

Russell MOORE, Plaintiff-Appellee, v. CENTREVILLE TOWNSHIP HOSPITAL, Defendant-Appellant and Third-Party Plaintiff/Separate Appellee (Albert J. Davinroy d/b/a Davinroy Heating & Plumbing Company, Third-Party Defendant-Appellant and Separate Appellant).

No. 5-90-0660.

Appellate Court of Illinois Fifth District.

June 25, 1993.

Evans & Dixon, Michael Reda, Edwardsville, for Albert J. Davinroy d/b/a Davinroy Plumbing and Heating Co.

Carole M. Hummel, Strellis, Nester, Faulbaum & Field, Belleville, for Centreville Tp. Hosp.

John E. Norton, John E. Norton & Associates, Belleville, Edward J. Kionka, M. Keith Smith, Kionka, Smith & Associates, Mt. Vernon, for Russell Moore.

Presiding Justice CHAPMAN delivered the opinion of the court:

Defendant Centreville Township Hospital (hereinafter, Hospital) appeals from a jury verdict in favor of plaintiff for injuries he received while working on a sewer repair job on the Hospital grounds. Third-party defendant Albert J. Davinroy, d/b/a Davinroy Plumbing and Heating Co. (hereinafter, Davinroy) appeals from the verdict on Centreville Township Hospital's contribution action finding Davinroy 80% at fault for plaintiff's injuries. We affirm.

In June of 1983, Davinroy assigned its employee, Russell Moore, to work on a sewer repair job on the grounds of Centreville Township Hospital. The Hospital had contracted with Davinroy to repair the leaking sewer line on a time and materials basis. Davinroy employees dug a trench near where the raw sewage was leaking from the ground. This trench was approximately six to eight feet deep, 10 to 12 feet long and eight to ten feet wide. At some point during the work, it was determined that a sump hole was necessary. The sump hole was described as about three to four feet wide and about two feet deeper than the main trench. The sump pump was provided by the Hospital.

Plaintiff testified that on the day of the accident, he heard the sump pump clog up. He climbed out of the main hole to unclog it. As he squatted on the edge of the sump hole to pull the pump up, plaintiff said he felt the ground begin to give. To avoid falling into the sump hole and the sewage, plaintiff jumped across the hole. As he jumped he hit his head on the backhoe bucket. He described himself as dazed and in pain, but he continued to work that day and until the job was completed.

A few days after the accident, plaintiff went to Dr. Doy Freeland. Plaintiff complained that his head, neck, and back hurt, and he was given a neck brace. He was admitted to Memorial Hospital, and a CT scan ordered by Dr. Freeland revealed an incomplete fracture of the C-3 vertebra. Plaintiff was later referred to Dr. Joseph Hanaway and Dr. Bud Chomhirun. These doctors agreed that, although plaintiff had some subsequent negative test results, he was seriously injured.

Count I of plaintiff's complaint alleged that the Hospital violated the Structural Work Act (Ill.Rev.Stat.1991, ch. 48, par. 59.90 et seq., now 740 ILCS 150/0.01 et seq. (West 1992)). Count II alleged that the Hospital was negligent in failing to provide a safe work place for plaintiff. Count III alleged that the Hospital was vicariously liable for the negligence of Davinroy. The jury found in favor of the plaintiff on each count and awarded him $340,000. On the third-party complaint, the jury found the third-party defendant, Davinroy, 80% at fault. The Hospital was found 20% at fault.

On appeal, both the Hospital and Davinroy argue (1) that the trial court erred when it admitted copies of medical reports prepared by Dr. Herbert Rosenbaum on individuals other than the plaintiff and (2) that plaintiff's counsel's inflammatory closing argument caused the jury to improperly award damages based on sympathy, passion and prejudice.

In addition, third-party defendant Davinroy argues: (1) that the amount of contribution assessed against it is contrary to the holding of Kotecki v. Cyclops Welding Corp. (1991), 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023; (2) that the trial court erred in submitting jury instructions 39 and 40 to the jury; (3) that the trial court improperly denied its motion to dismiss Count III of plaintiff's amended complaint and Count III of the amended third-party complaint based on vicarious liability; (4) that the verdict was against the manifest weight of the evidence, and; (5) that remittitur may be proper.

Turning first to the admission of copies of examination reports prepared by Dr. Rosenbaum on individuals other than the plaintiff, the record reveals that plaintiff's exhibits 67-85 are medical reports prepared by Dr. Rosenbaum which contain the same negative neurological findings as Dr. Rosenbaum's medical report on plaintiff. The Hospital and Davinroy contend that there was no foundation for the admission of these records and that the prejudicial effect of these records outweighed any probative value they may have had. In addition, the Hospital argues that the admission of the records violated the physician-patient privilege and was an improper attempt to impeach Dr. Rosenbaum on collateral issues.

Both the Hospital and Davinroy contend that under Supreme Court Rule 236(b) (134 Ill.2d R. 236(b)) these reports were not admissible without the foundation testimony of the people who made the entries in the records. In support of this argument, the Hospital cites Smith v. Victory Memorial Hospital (1988), 167 Ill.App.3d [246 Ill.App.3d 585] 618, 118 Ill.Dec. 142, 521 N.E.2d 210 which holds that hospital records are excluded from Rule 236 and may be admitted under this business records exception to the hearsay rule only if the proponent calls as a witness every person who made entries on those records. Smith v. Victory Memorial Hospital (1988), 167 Ill.App.3d at 621, 118 Ill.Dec. at 143, 521 N.E.2d at 211 (citing Mayer v. Baisier (1986), 147 Ill.App.3d 150, 100 Ill.Dec. 649, 497 N.E.2d 827).

Supreme Court Rule 236 is the business records exception to the hearsay rule. And, as the defendants correctly point out, hospital records were excluded from this exception at the time of this trial. (146 Ill.2d R. 236, amended April 1, 1992, eff. August 1, 1992 to include medical records in the business records exception.) However, the business records exception to the hearsay rule is inapplicable to the facts of this case because plaintiff's exhibits are not hearsay. That is, these records were not offered to prove the truth of their contents, but to demonstrate Dr. Rosenbaum's alleged bias in favor of defendants.

On the separate evidentiary issue of authentication, plaintiff's witness, Mary Shulte, R.N., testified that she was familiar with and recognized the reports and the signatures on the reports as those of Dr. Rosenbaum. This was sufficient to authenticate these reports, particularly since neither defendant objected to Shulte's identification of the reports and the signatures as those of Dr. Rosenbaum, although the Hospital did object to a comparison of the language in the reports to the language in Russell Moore's report.

Ultimately, these reports were also used to corroborate Janet Ottinger's testimony. Ottinger, a former Rosenbaum employee, testified that Dr. Rosenbaum's negative neurological examination results were programmed into the office typewriter and were entered on patient examination reports at the touch of a single key. Plaintiff's use of the fact that Dr. Rosenbaum programmed a negative neurological examination into his office equipment, as illustrated by the challenged reports, coupled with the fact that Dr. Rosenbaum testified that 90% of his medical-legal opinions were rendered on behalf of the defense, was not an impermissible demonstration of bias. The identical negative neurological findings in the reports issued by Dr. Rosenbaum were relevant for this purpose.

The Hospital also argues that use of these reports to impeach Dr. Rosenbaum violates the physician-patient privilege. (Ill.Rev.Stat.1991, ch. 110, par. 8-802, now 735 ILCS 5/8-802 (West 1992).) This section states, in relevant part:

"No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient...." Ill.Rev.Stat.1991, ch. 110, par. 8-802, now 735 ILCS 5/8-802 (West 1992).

The narrow question presented in this case is whether 215(a) (134 Ill.2d R. 215(a)) examination reports prepared by a testifying expert witness-physician on litigants other than the current plaintiff are protected by the physician-patient privilege.

The Hospital argues that Dr. Rosenbaum's reports are privileged and should not have been admitted at plaintiff's trial. The Hospital bases this argument on Sears v. Rutishauser (1984), 102 Ill.2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210 which held without comment that the trial court properly denied the defendant's subpoena of plaintiff's doctor's patient records because it would have violated the doctor-patient privilege. The Hospital also relies on Trower v. Jones (1988), 121 Ill.2d 211, 117 Ill.Dec. 136, 520 N.E.2d 297 (inquiries may be made into annual income derived from expert testimony and the frequency of testimony for defendants and plaintiffs); and Davis v. Hinde (1986), 141 Ill.App.3d 664, 96 Ill.Dec. 13, 490 N.E.2d 1049 (a list of every one of plaintiff's attorney's clients who were treated by plaintiff's treating doctors was impermissible). We note that Sears and Davis involve attempts to obtain records of patients who were being treated by the doctors involved.

The plaintiff argues that because each of these reports was created by Dr. Rosenbaum solely for the purpose of rendering a medical-legal opinion, they were not protected by the physician-patient privilege. In support of his argument, plaintiff cites Geisberger v. Willuhn (1979), 72 Ill.App.3d 435, 28 Ill.Dec....