About three months ago, on this blog, I asked the question: What is a “reasonable” fee for a doctor’s deposition? (See https://triallaw.wordpress.com/2009/12/23/what-is-a-reasonable-fee-for-a-doctors-deposition/). The First District Illinois Appellate Court just gave us one possible answer.
In Montes v. Mai, ___ Ill. App. 3d ___ (1st Dist. No. 1-08-2774 February 25, 2010), the appellate court was asked to overturn a circuit court judge’s ruling that a chiropractor was entitled to payment of no more than $66.95 per hour for his deposition testimony based on her calculation of his annual income divided by 52 weeks at 40 hours per week. She also struck down the chiropractor’s demand for a two hour minimum and for pre-payment.
A copy of the appellate court’s decision may be found here: http://www.state.il.us/court/Opinions/AppellateCourt/2010/1stDistrict/February/1082774.pdf
The appellate court affirmed the circuit court judge’s ruling. Although saying there are many ways a court can determine what is “reasonable,” the court confirmed this way was certainly appropriate. The Appellate court also indicated, however, that the best recourse is for the doctor and the attorneys to agree on a figure. A very important part of the decision, however, is the appellate court confirming that doctors are not entitled to charge a “minimum” to give deposition testimony or to obtain payment before the deposition. The appellate court relied on the Committee Comments to Supreme Court Rule 204 which state that the doctor’s fee should be paid only after the deposition is completed and should be based on actual time of testimony.
By the way, another part of the decision indicates that a chiropractor is a “physician” as that phrase is used in Supreme Court Rule 204, regarding the payment of reasonable deposition fees.
This is very good decision for all litigants, and it is a type of court-enforced “tort reform” to keep down the costs of litigation. The decision is certainly consistent with the Supreme Court Rules, so it is not judicial activism in any sense. The question will be whether it will have much impact. My guess is that more than 99% of all doctor depositions proceed based solely on the agreement of a party to pay whatever the doctor demands to be paid. The problem is that many of those demands are “unreasonable” and deviate from Supreme Court Rule 204.
So, will litigants push back against doctor’s demands or will they continue to give in based on the fear the physician will give unfavorable testimony against the party who resists these demands? Many will probably choose to not resist the doctors, but perhaps this decision is one of the first inroads on outrageous depositions fees paid to doctors.