Synopsis: Only in Illinois: a chiropractor is now a “physician” as defined in a Supreme Court ruling and our 1987 Medical Practice Act.
Editor’s comment: In Montes v. Mai (No. 1-08-2774, 2010 WL 682445 1st Dist, Feb 2010), the Appellate Court reviewed a claim in which Plaintiff Montes, a passenger in an automobile, was injured when the car driven by Defendant struck an auto Montes was riding in. Montes brought a civil action against the other driver Mai. During the course of the litigation, Defendant Mai issued a subpoena to Plaintiff Montes’ treating chiropractor to testify at a discovery deposition. A dispute arose as to the amount of the fee, if any, to be paid to the chiropractor for attendance at a discovery deposition.
The chiropractor wanted to be paid $550 per hour, paid in advance, with a 2 hour minimum. At one point, Defendant’s attorney offered $300.00 per hour with no minimum payment or prepayment. This offer was refused and the matter brought before the assigned judge. Circuit Court Judge Kathleen Flanagan then set an hourly fee of $66.95 and held the chiropractor in contempt of court for refusing to appear and testify at the deposition. The chiropractor appealed.
On appeal, Defendant contended a chiropractor was not a physician under Supreme Court Rule 204(c) and therefore only a subpoena with a $20.00 witness fee and mileage need be paid to the chiropractor to compel his appearance at the discovery deposition.
In considering Judge Flanagan’s ruling, the Appellate Court first examined Supreme Court Rule 204(c) and did not find any Illinois case law defining the term “physician” as used in this rule. The reviewing court then used the definition of the word “physician” as found in Illinois case law dating back to 1917, as well as the current version of the Medical Practice Act of 1987 to find the term “physician” as used in Rule 204(c) is intended to encompass a treating chiropractor. Therefore under Rule 204(c), a chiropractor is entitled to “a reasonable fee” for time spent in a discovery deposition in a case which he or she is not a party and not just a $20.00 witness fee and mileage.
The Appellate Court ruled that although the trial court’s formula for determining the reasonable fee was not the only way to calculate a reasonable fee, they affirmed the trial court’s calculations of the chiropractor’s hourly fee at $66.95 per hour. The reviewing court also affirmed the trial court’s order stating Defendant was not required to pay a 2 hour minimum or prepay the fee. This portion of the ruling was based on the committee comments to Rule 204(c), which explain the fee should be paid only after the doctor has testified, and the fee should not exceed an amount which reasonably reimburses the doctor for the time actually spent testifying at the deposition. The Court felt the trial court’s order properly reflected the Supreme Court’s intended application of the rule and reasonably compensated the chiropractor for the time spent testifying.
The question then becomes, does this case affect either a chiropractor or a physician’s deposition in a workers’ compensation case? The answer is “sort of.”
Obviously, Supreme Court Rule 204(c) which is applicable to discovery depositions does not apply to workers’ compensation because there are no discovery depositions in the WC rules. However, the rationale behind this decision is well thought out and reasonable. In that regard, the reasoning of the Court may likely be applied to the similar dispute in a worker’s compensation case if the evidence deposition of a chiropractor is needed.
Additionally, one of the paragraphs of Section 16, provides in relevant part,
The Commission shall have the power to determine the reasonableness and fix the amount of any fee of compensation charged by any person, including attorneys, physicians, surgeons and hospitals, for any service performed in connection with this Act, or for which payment is to be made under this Act or rendered in securing any right under this Act.
While this paragraph is not as detailed or explicit as Supreme Court Rule 204(c) is, it has the same intent. This paragraph allows the Commission or assigned arbitrator to determine the reasonableness of a doctor’s or chiropractor’s deposition fee. Under the “reasonable standard” of this paragraph, it would also seem that this paragraph would allow an arbitrator to deny or allow payment of a minimum hourly requirement, as well as to deny or allow prepayment of the deposition fee.
This article was written by Keefe, Campbell & Associates most recent addition, John C. Wilson, J.D. Please do not hesitate to reply or direct thoughts and comments to John at jwilson@keefe-law.com.
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