Illinois Appellate Court Reverses Order Regarding Supreme Court Rule 215 Physician Examination

The question in this case, which was posed to the Illinois Appellate Court, was: “Does the trial court have discretion to permit a Rule 215 medical examiner to testify when the attorney for the party examined has not been served with the examiner’s report within the time specified by Rule 215(c)?”

The answer the Illinois Appellate Court gave in conclusion was “No.”

The ruling came despite a violation of the portion of the Illinois Supreme Court Rule 215 that requires a physician who was hired by the defendant ‘s attorney to conduct a medical examination of the plaintiff to send a copy of his report to the plaintiff’s attorney within 21 days of the checkup – and despite the fact that the third sentence of Rule 215(c) prescribes exclusion as the automatic remedy for a violation of this deadline. In this case, a circuit court judge in Madison County, Ill., denied Linda Batson’s motion to bar Dr. Mitchell Rotman from testifying in her personal injury case against Schindler Elevator Corp. The judge certified the question of law for immediate appeal.

When Batson sued Schindler Elevator for negligence, its lawyers hired Dr. Rotman to conduct a medical examination. According to the record, it appears that no one, including Schindler’s lawyers, told Dr. Rotman that he had to send a copy of his report to Batson’s lawyer.

A week after the deadline under Rule 215(c), 21 days, Schindler’s attorney found out about the omission, and he handed over a copy of the late report at the start of the evidence deposition of Batson’s treating physician, Dr. Steven Baak.

In response to the motion to exclude Dr. Rotman’s testimony, the defense attorneys argued that Batson was not prejudiced by the delay because the trial date was nearly a year after Batson’s attorney received the report and the offer to postpone Dr. Baak’s deposition. The defendant also claimed that case management orders extended the Rule 215 deadline.

Significantly, the defense lawyers never asked for a retroactive extension of time under Illinois Supreme Court Rule 183.

Authorizing ex post facto extensions, Rule 183 says: “The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act, which is required by the rules to be done within a limited period, either before or after the expiration of the time.”

Here, with omissions not noted in formatting modified for clarity, the appellate court delivered a majority opinion along with a special concurrence.

In conclusion, the appeals panel found that the failure to deliver a copy of the examiner’s report to the attorney for the party examined within the time specified by Rule 215(c) or within any extension or modification thereof granted by the trial court will result in the exclusion of the examiner’s testimony, opinions and the results of any tests or X-rays that were performed, except at the instance of the party examined.

The plain language of Rule 215(c) mandates the enforcement of a specific penalty for failing to furnish the report of the examiner within the time specified or within any extension or modification thereof granted by the trial court. Under the Rule, the report must be delivered to the opposite party within 21 days after completion of the examination or with an extension or modification granted by the court. Accordingly, the Illinois Appellate Court answered the certified question, as modified, in the negative. That is to say that there is no discretion given to the trial court to extend the 21-day time limit unless there was a timely motion to extend the time which was ordered by the court.

In this case, the plaintiff’s attorney received the report from Schindler’s counsel not the physician 28 days after the physician’s examination in violation of Rule 215(c). At the time the plaintiff received the report, the trial date was approximately one year away. The trial judge, in his “discretion,” ruled that the expert would be allowed to testify. Though the decision of trial judges in discovery orders is normally given some degree of discretion, the standard of review here is de novo as this is an issue of rule interpretation. The trial court stated in its order that no extension or modification of the discovery order was made. Thus, reading the plain language of the rule, the expert should be barred from testifying. Had the procedure contained within the rule regarding extensions or modification of the discovery order been followed, the court would have been correct in allowing the testimony and report of the expert to be used at trial.

Accordingly, the court reversed the order allowing the testimony of this examining physician.

Batson v. Township Village Associates, 2019 IL App (5^th) 170403 (Jan. 7, 2019).

Kreisman Law Offices has been handling catastrophic injury lawsuits, truck accident cases, work injury lawsuits and construction injury lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Elmwood Park, Schiller Park, Schaumburg, Orland Park, Alsip, Oak Lawn, Calumet City, Calumet Park, Oak Forest, Markham, Matteson, Mount Prospect, Northbrook, Glenview, Streamwood, Wheeling, Willow Springs, Rolling Meadows, Hoffman Estates, Berkeley, Chicago (Ravenswood Manor, Pilsen, Prairie District, Printer’s Row, Cathedral District, Buena Park, Bridgeport, Austin, Edison Park, Hegewisch, Pulaski Park, Sauganash, South Loop), Cicero, Deerfield, Des Plaines and Evergreen Park, Ill.