{ "id": 5251843, "name": "SHARON KAYE POURCHOT, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee", "name_abbreviation": "Pourchot v. Commonwealth Edison Co.", "decision_date": "1992-01-31", "docket_number": "No. 3-91-0392", "first_page": "634", "last_page": "638", "citations": [ { "type": "official", "cite": "224 Ill. App. 3d 634" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "576 N.E.2d 1072", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1075-76" } ], "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5287840 ], "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0303-01" ] }, { "cite": "547 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 318", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2512819 ], "year": 1991, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0318-01" ] }, { "cite": "567 N.E.2d 1358", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1366" } ], "opinion_index": 0 }, { "cite": "209 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2600481 ], "weight": 2, "pin_cites": [ { "page": "331" }, { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0328-01" ] }, { "cite": "499 N.E.2d 952", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "957" } ], "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642305 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "587-88" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0581-01" ] }, { "cite": "513 N.E.2d 519", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "522" }, { "page": "521" }, { "page": "523" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 198", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3648518 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "202" }, { "page": "201" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0198-01" ] } ], "analysis": { "cardinality": 538, "char_count": 9808, "ocr_confidence": 0.773, "pagerank": { "raw": 8.782674282341924e-08, "percentile": 0.49584917885174 }, "sha256": "c65ae74192e8422ba714754ece3ed6515e7e5713eacec8a14a3d446ff37bf099", "simhash": "1:0a2d41fe3fe28d94", "word_count": 1501 }, "last_updated": "2023-07-14T21:10:25.672470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHARON KAYE POURCHOT, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McCUSKEY\ndelivered the opinion of the court:\nPlaintiff, Sharon Kaye Pourchot, appeals from a judgment in the amount of $1,178.24 entered in her favor and against defendant, Commonwealth Edison Co. Plaintiff argues the trial court abused its discretion in denying her motion for sanctions following defense counsel\u2019s ex parte communications with plaintiff\u2019s treating physician. Plaintiff also appeals the trial court\u2019s refusal to tender instructions to the jury on measuring damages for her future pain and suffering. We agree with both of plaintiff\u2019s contentions. We remand for a new trial and for the imposition of an appropriate sanction against defendant.\nPlaintiff brought an action to recover damages for injuries allegedly sustained when she slipped and fell on a foreign substance on defendant\u2019s premises. Less than a week before the case was scheduled for trial, plaintiff filed a motion for continuance. Plaintiff represented that Dr. Nadine Schmitz, plaintiff\u2019s treating physician, had referred her to an orthopedic surgeon for surgery, and that plaintiff\u2019s condition had not reached a state of medical improvement necessary to evaluate the case for trial or settlement purposes.\nDefense counsel stated that a day prior to receiving plaintiff\u2019s motion, defense counsel telephoned Dr. Schmitz\u2019s physician assistant to confirm Dr. Schmitz\u2019s availability as a defense witness at trial. Two days later, defense counsel again telephoned the physician assistant. Defense counsel advised the physician assistant that Dr. Schmitz may not need to appear at the scheduled trial because of Dr. Schmitz\u2019s referral of plaintiff for surgery, as set forth in plaintiff\u2019s pending motion for continuance. Defense counsel stated the physician assistant then volunteered that plaintiff had been referred not for surgery, but merely to accommodate plaintiff\u2019s desire for a physician closer to home. In response to defense counsel\u2019s inquiry, the physician assistant opined that Dr. Schmitz would sign an affidavit regarding the reason for the referral.\nOn the morning of the hearing on plaintiff\u2019s motion for continuance, defense counsel personally delivered an affidavit to Dr. Schmitz\u2019s office for her signature. Defense counsel met briefly with Dr. Schmitz to correct a typographical error on the affidavit. Defense counsel remained with Dr. Schmitz while she signed the affidavit. Dr. Schmitz then directed defense counsel to an office employee who would notarize the signature. The physician assistant also provided defense counsel with a written record of plaintiff\u2019s condition from a visit with Dr. Schmitz a week earlier.\nAt the courthouse that afternoon, defense counsel sought out plaintiff\u2019s counsel prior to the hearing and advised counsel of the contents of Dr. Schmitz\u2019s affidavit. In surprise, the plaintiff withdrew her motion for continuance.\nPlaintiff promptly moved for sanctions against the defendant and its counsel based on defense counsel\u2019s ex parte communications with plaintiff\u2019s treating physician. Three ex parte communications were ultimately identified: defense counsel (1) solicited an affidavit from plaintiff\u2019s treating physician; (2) received a progress report prepared at plaintiff\u2019s last office visit; and (3) subpoenaed medical records from plaintiff\u2019s treating physician, without notice to plaintiff, six weeks prior to Dr. Schmitz\u2019s discovery deposition. Four days after the deposition, defense counsel disclosed possession of these records to plaintiff.\nIn response to plaintiff\u2019s motion for sanctions, defense counsel stated that at no time did she speak with Dr. Schmitz about the care and treatment of plaintiff. Defense counsel argued that she obtained the affidavit from Dr. Schmitz because she believed it was her obligation to disclose to the court the false allegation in plaintiff\u2019s motion for continuance.\nThe court found that an ex parte communication with plaintiff\u2019s treating physician occurred, but concluded that the contact was harmless, conducted in good faith, and neither \u201cdesigned nor intended to *** intrude into the fiduciary relationship between doctor [and] patient.\u201d The court denied plaintiff\u2019s motion. Plaintiff then renewed her motion for continuance, on the ground that the ex parte communications disqualified Dr. Schmitz as a witness and that additional time was needed to obtain another medical expert. The court denied plaintiff\u2019s motion, and the case proceeded to trial.\nAt the close of evidence, the court refused to tender plaintiff\u2019s jury instruction which allowed for future pain and suffering. The jury rendered a verdict in favor of plaintiff, but awarded damages of $2,356.48 for her disability only. No damages were awarded for pain and suffering. In addition, the jury found plaintiff 50% responsible for her injuries. The trial court entered a judgment of $1,178.24 on the reduced verdict amount. Plaintiff\u2019s motion for a new trial was denied.\nAs her first issue on appeal, plaintiff contends that the trial court abused its discretion in denying her motion for sanctions. We agree.\nEx parte communications and conferences between defense counsel and a plaintiff\u2019s treating physician are prohibited as against public policy. (Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 202, 513 N.E.2d 519, 522; Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952.) A court\u2019s failure to bar a treating physician\u2019s testimony after ex parte communications constitutes reversible error. Yates, 160 Ill. App. 3d at 201, 513 N.E.2d at 521; Requena v. Franciscan Sisters Health Care Corp. (1991), 212 Ill. App. 3d 328, 331, 570 N.E.2d 1214, 1216.\nThis court in Yates rejected the argument a plaintiff must demonstrate that the ex parte communications resulted in improper conduct or actual prejudice. Justice Heiple stated in Yates that \u201c[prejudice and improper conduct can be implied from the fact that the plaintiff\u2019s treating physician has violated his ethical and fiduciary obligations owed to his patient by engaging in ex parte conferences concerning the patient with the patient\u2019s legal adversary and without the patient\u2019s consent.\u201d (Yates, 160 Ill. App. 3d at 203, 513 N.E.2d at 523.) Thus, the physician-patient privilege is violated at the time of an ex parte communication between the plaintiff\u2019s treating physician and defense counsel regardless of what information is actually revealed. (Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, 265, 554 N.E.2d 266, 272.) Whether the contact was indeed harmless or conducted in good faith is irrelevant under our analysis.\nWe conclude that defense counsel\u2019s conduct violated the public policy favoring the sanctity and confidentiality of the doctor-patient relationship. (Petrillo, 148 Ill. App. 3d at 587-88, 499 N.E.2d 952, 957.) Accordingly, we reverse the trial court\u2019s order denying plaintiff\u2019s motion for sanctions. The determination of what sanction is appropriate is left to the sound discretion of the trial court. As guidance on remand, we note with approval the sanction of prohibiting examination by defendant\u2019s counsel of plaintiff\u2019s treating physician with whom defendant\u2019s counsel has improperly communicated. (Nastasi v. United Mine Workers of America Union Hospital (1991), 209 Ill. App. 3d 830, 840, 567 N.E.2d 1358, 1366.) Also, if the trial court believes the plaintiff\u2019s treating physician\u2019s testimony has been tainted by virtue of the improper ex parte communication, then the appropriate sanction is to bar that testimony. Requena v. Franciscan Sisters Health Care Corp. (1991), 212 Ill. App. 3d 328, 332, 570 N.E.2d 1214, 1216.\nPlaintiff next contends the trial court abused its discretion in refusing to give a jury instruction on future pain and suffering. A jury instruction on future pain and suffering is warranted if the jury hears \u201csome evidence\u201d on that point from either an expert or lay person. Onion v. Chicago & Illinois Midland Ry. Co. (1989), 191 Ill. App. 3d 318, 320, 547 N.E.2d 721, 723; Young v. Hummel (1991), 216 Ill. App. 3d 303, 309, 576 N.E.2d 1072, 1075-76.\nDr. Schmitz testified that her diagnosis of impingement syndrome of the shoulder and de Quervain\u2019s tenosynovitis of the right wrist would account for plaintiff\u2019s complaints of pain and discomfort. While Dr. Schmitz declined to use the word \u201cpermanency\u201d in conjunction with the condition of plaintiff\u2019s shoulder, she did describe it as having \u201creached a state of chronicity.\u201d Dr. Schmitz defined \u201cchronicity\u201d as meaning \u201cchronic, ongoing.\u201d She further explained that a state of chronicity in the shoulder meant \u201cthat it\u2019s there, that it may come and go, or that it may be there, but at varying levels of intensity.\u201d\nPlaintiff testified that at the time of trial she was still experiencing pain in her shoulder and wrist, and numbness in her wrist. She testified that her range of motion continues to be limited, and she has difficulty lifting objects over 15 pounds without pain.\nWe conclude that plaintiff\u2019s own testimony and the testimony of her expert presented \u201csome evidence\u201d sufficient to warrant giving to the jury a future pain and suffering instruction. Therefore, the trial court abused its discretion in refusing to tender such an instruction to the jury.\nThe order of the circuit court denying plaintiff\u2019s motion for sanctions is reversed. We remand for a new trial and for the imposition of appropriate sanctions against defendant.\nReversed and remanded.\nBARRY, P.J., and SLATER, J., concur.", "type": "majority", "author": "JUSTICE McCUSKEY" } ], "attorneys": [ "Law Offices of Naughton & Markese, of Joliet (Thomas P. Naughton, of counsel), for appellant.", "Sedgwick, Detert, Moran & Arnold, of Chicago (Carol J. Gerner, of counsel), for appellee." ], "corrections": "", "head_matter": "SHARON KAYE POURCHOT, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.\nThird District\nNo. 3-91-0392\nOpinion filed January 31, 1992.\nLaw Offices of Naughton & Markese, of Joliet (Thomas P. Naughton, of counsel), for appellant.\nSedgwick, Detert, Moran & Arnold, of Chicago (Carol J. Gerner, of counsel), for appellee." }, "file_name": "0634-01", "first_page_order": 658, "last_page_order": 662 }