Troyan v. Reyes, 3-05-0132.

• Citation: 855 N.E.2d 967,367 Ill. App.3d 729,305 Ill.Dec. 451
• Decision Date: 29 September 2006
• Docket Number: No. 3-05-0132.,3-05-0132.
• Parties: John Paul TROYAN, Plaintiff-Appellant, v. Dana REYES, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

855 N.E.2d 967

367 Ill. App.3d 729

305 Ill.Dec. 451

John Paul TROYAN, Plaintiff-Appellant, v. Dana REYES, Defendant-Appellee.

No. 3-05-0132.

Appellate Court of Illinois, Third District.

September 29, 2006.

Scott Pyles (argued), Krockey, Cernugel, Cowgill, Clark & Pyles, Ltd., Joliet, for John Paul Troyan, for Appellant.

Raymond P. Fabricius (argued), Pool, Leigh & Fabricius, Ottawa, for Dana Reyes.

Justice LYTTON delivered the Opinion of the court:

Plaintiff, John Paul Troyan, filed suit against defendant, Dana Reyes, for damages he sustained as the result of an automobile accident. The jury found in favor of plaintiff and awarded him $1,681.76 in damages. We reverse and remand.

In 1993, plaintiff and defendant were involved in an automobile accident. Immediately after the accident, plaintiff went to the emergency room at Provena St. Joseph Medical Center. At the emergency room, he was given pain medication and referred to an orthopedic specialist for follow-up treatment. Plaintiff received follow-up treatment from Dr. Hiroshi Eguro a few days later. Dr. Eguro prescribed physical therapy for plaintiff, which he received from Marge Taylor at MedRehab, a rehabilitation center.

In 1995, plaintiff filed suit against defendant. In 1998, plaintiff voluntarily dismissed his suit. In 1999, plaintiff timely refiled his action. In 2000, plaintiff sent defendant requests to admit, among other things, the following facts:

"4. That as a result of the collision, Plaintiff suffered $4,052.38 in medical bills that were reasonable and customary charges related to Plaintiff's injuries.

5. That as a result of the collision, Plaintiff suffered a traumatic cervical strain.

6. That the medical records of St. Joseph Medical Center, MedRehab of Illinois, and Hiroshi Eguro, M.D. were kept in the ordinary course of business at each medical facility.

* * *

8. That as a result of the collision, Plaintiff suffered a permanent injury to his cervical spine."

Defendant objected to the above requests to admit as requests for opinions, adding that they requested facts about which she had "no personal knowledge or information." She further responded:

"[T]his request pertains to matters protected by the physician/patient privilege. Therefore, the Defendant, DANA C. REYES, is unable upon reasonable inquiry to admit or deny the facts set forth in Request to Admit or Deny Number[s] [4, 5, 6 and 8]."

Plaintiff filed a motion to strike defendant's responses and to deem the facts contained in the requests admitted. The trial court denied plaintiff's motion.

At trial, neither Dr. Eguro nor Marge Taylor was available to testify. Dr. Eguro was deceased, and Marge Taylor had moved and could not be located. Plaintiff called the record keepers from Provena St. Joseph Medical Center and Dr. Eguro's office, who testified that the records were created and kept in the ordinary course of business. The trial court found that the foundational requirements were met and admitted the medical records into evidence. In pertinent part, those records consisted of 1) medical records from Dr. Eguro dated 11/9/93; 2) medical records from Dr. Eguro dated 1/4/94; 3) a medical report from Dr. Eguro dated 7/14/94; 4) a report from MedRehab written by Marge Taylor; and 5) a radiology report from Dr. Robert E. Boyd of Provena Saint Joseph Medical Center.

Plaintiff's attorney sought to present the records to the jury during his closing argument, and defendant objected. The trial court did not allow plaintiff to present to the jury any of Dr. Eguro's 1994 medical records or Dr. Boyd's radiology report. Plaintiff was allowed to present to the jury redacted versions of Marge Taylor's report and Dr. Eguro's 1993 medical records, containing only plaintiff's subjective statements to the medical providers. The redacted portions of the records contained the observations, assessments, diagnoses and impressions of Dr. Eguro, Ms. Taylor and Dr. Boyd.

At trial, plaintiff testified that his neck was injured as a result of the automobile accident with defendant. He received medical treatment from Dr. Eguro and Ms. Taylor for approximately four or five months following the accident, until April or May of 1994. After that, plaintiff's injuries resolved except for occasional headaches. He testified that he incurred $4,131.66 in medical expenses for treatment he received as a result of the accident.

The jury returned a verdict in favor of plaintiff and determined that the total amount of damages suffered by plaintiff was $2,4042.52, itemized as follows: $0.00 for loss of normal life; $0.00 for pain and suffering; $359.92 for medical expenses; and $2,042.60 for property damages. The jury found that plaintiff was 30 percent negligent; therefore, plaintiff's damages were reduced by 30 percent to $1,681.76. Plaintiff filed a motion for a new trial on the issue of damages only. The trial court denied the motion.

I. MEDICAL RECORDS

Plaintiff argues that the trial court erred by refusing his request to publish his medical records to the jury. Specifically, he wants us to determine whether his medical records containing opinions and diagnoses should have been published to the jury under the business records exception.

Relevant evidence, which tends to prove a fact in controversy or renders a matter in issue more or less probable, is generally admissible. Bachman v. General Motors Corp., 332 Ill.App.3d 760, 797, 267 Ill.Dec. 125, 776 N.E.2d 262, 295 (2002). A trial court's decision regarding the presentation of evidence to a jury is reviewed under an abuse of discretion standard. See Betts v. Manville Personal Injury Settlement Trust, 225 Ill.App.3d 882, 922, 167 Ill.Dec. 1063, 588 N.E.2d 1193, 1219 (1992). If a trial court abuses its discretion, a new trial should be ordered only if the exclusion of evidence appears to have affected the outcome of the trial. See Schmidt v. Ameritech Illinois, 329 Ill.App.3d 1020, 1040-41, 263 Ill. Dec. 543, 768 N.E.2d 303, 320 (2002).

In Illinois, business records are admissible as an exception to the hearsay rule. 145 Ill.2d R. 236(a). Illinois Supreme Court Rule 236 provides that:

"Any writing or record * * * made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility.* * *" 145 Ill.2d R. 236(a).

In 1992, the Illinois Supreme Court amended Rule 236 to allow medical records to be treated as any other business record. See 145 Ill.2d R. 236(b), Committee Comments to paragraph (b). Medical records are now admissible in Illinois courts as long as a sufficient foundation is laid to establish that they are business records. See LoCoco v. XL Disposal Corp., 307 Ill.App.3d 684, 689-90, 240 Ill. Dec. 474, 717 N.E.2d 823, 828 (1999); Lecroy v. Miller, 272 Ill.App.3d 925, 935, 209 Ill.Dec. 439, 651 N.E.2d 617, 623 (1995).

In order to fulfill the foundational requirements of a business record, it is not necessary that the author or creator of the record testify or be cross-examined about the contents of the record. See Lecroy, 272 Ill.App.3d at 935-36, 209 Ill. Dec. 439, 651 N.E.2d at 624. "[T]he circumstantial probability of their trustworthiness is a practical substitute for cross-examination of the individual making the entries." People v. Wells, 80 Ill.App.2d 187, 194, 224 N.E.2d 288, 292 (1967). A custodian or any person familiar with the business and its mode of operation may provide testimony establishing the foundational requirements of a business record. In re Marriage of Fields, 283 Ill.App.3d 894, 905, 219 Ill.Dec. 420, 671 N.E.2d 85, 92 (1996). That the author of a record does not testify affects only the weight, not the admissibility, of the record. See 134 Ill.2d R. 236(a).

Once a witness has established the foundational requirements of a business record, "[t]he records themselves should be introduced." Smith v. Williams, 34 Ill.App.3d 677, 680, 339 N.E.2d 10, 13 (1975). Business records should only be barred from admission if they are irrelevant, prejudicial or for some other legally appropriate reason. See In re A.B., 308 Ill.App.3d 227, 241 Ill.Dec. 487, 719 N.E.2d 348 (1999).

Business records are an exception to the hearsay rule because of their inherent trustworthiness and reliability. See Eastman v. Dept. Of Public Aid, 178 Ill.App.3d 993, 998, 128 Ill.Dec. 276, 534 N.E.2d 458, 462 (1989); People v. Smith, 141 Ill.2d 40, 73, 152 Ill.Dec. 218, 565 N.E.2d 900, 914 (1991). "The rationale for the business records exception is that in carrying on the proper transactions of business, business records are useless unless accurate, making the motive to follow a routine of accuracy great while making the motive to falsify nonexistent." People v. Peterson, 150 Ill.App.3d 782, 786, 104 Ill.Dec. 187, 502 N.E.2d 450, 454 (1986).

Like other business records, medical records are "inherently reliable." People v. Trotter, 178 Ill.App.3d 292, 297, 127 Ill.Dec. 471, 533 N.E.2d 89, 92 (1988); Bolton v. B E & K Construction, 822 So.2d 29, 34 (La.App.Ct.2002); see also United States v. Woods, 970 F.Supp. 711, 720 (D.Minn.1997). They are reliable because they are generated by those who have no reason to prevaricate and must rely on their accuracy:

"Medical records, in general warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium."...