Posted On: May 16, 2007 by Christopher T. Hurley

Hurley McKenna & Mertz brief in Kunz v. Little Company of Mary Hospital

We have been getting numerous requests for our brief in the Kunz v. Little Company of Mary Hospital appeal. Click below to see our entire brief on the issue of the trial court's failure to allow the plaintiff's expert to testify on the issue of the reasonableness of the plaintiff's past and future medical bills. The case deals with several issues for trial practitioners, including the collateral source rule and its relationship to the severely reduced, negotiated billing rates paid by Medcare, Medicaid and third-party insurance companies; foundational objections to expert testimony; and the foundation necessary for paid and unpaid medical bills to be entered into evidence.

The opinion of the Illinois Appellate Court in Kunz v. Little Company of Mary Hospital can be found here.

Nos. 06-1707 & 06-1814 cons.

IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

BETTY KUNZ,
Plaintiff-Appellant,
Separate-Appellee,
v.

LITTLE COMPANY OF MARY HOSPITAL AND HEALTH
CARE CENTERS,

Defendant-Appellee,
Separate Appellant,

and

MANOR CARE HEALTH SERVICES, INC., JUE-LIN TANG, M.D.,
and METRO INFECTIOUS DISEASE CONSULTANTS, L.L.C.,

Defendants.

Appeal from the Circuit Court of Cook County,
Illinois, County Department, Law Division, No. 02 L 004839.
The Honorable Mary A. Mulhern, Judge Presiding.
_____________

PLAINTIFF-APPELLANT’S BRIEF

Christopher T. Hurley
Mark R. McKenna
HURLEY McKENNA & MERTZ
33 North Dearborn Street, Suite 1430
Chicago, Illinois 60602
(312) 553-4900

Attorneys for Plaintiff Betty Kunz

**************************************************************************************************************

NATURE OF THE CASE
Betty Kunz brought this action alleging that the medical negligence of Little Company of Mary Hospital’s employee, a nurse, resulted in Mrs. Kunz improperly receiving a prolonged dosage of a medication. [R. V2, C403-C426]. As a proximate result, Betty Kunz experienced permanent kidney damage requiring dialysis. [R. V12, 152-153]. The trial court entered judgment in favor of Betty Kunz and against Little Company of Mary Hospital [also “LCMH” or “the hospital”]. [R. V8, C1964]. This appeal arises out of the trial court’s ruling sustaining the hospital’s objection based on foundation to the opinion testimony of Dr. Vincent Pateras, a nephrologist retained by the plaintiff to render opinion testimony that Mrs. Kunz’s medical expenses were customary, reasonable and necessary. [R. V13, 234, 245, 246, 249]. This appeal does not involve a judgment based upon the verdict of a jury. No questions are raised on the pleadings.

ISSUES PRESENTED FOR REVIEW
Whether the trial court erred in sustaining the defendant hospital’s objection based on foundation and barring the opinion testimony of Dr. Vincent Pateras, a nephrologist retained by the plaintiff to render opinion testimony, that (1) the plaintiff’s past dialysis charges of $1,321,104 [R. V13, 246] were customary, reasonable and necessary charges, and that plaintiff would continue to incur dialysis costs of $250,000 per year [R. V14, 23-24] for the remainder of her life [R. V13, 234, 245-46, 249]; (2) whether the trial court erred when it denied plaintiff’s oral motion to clarify and explain for the record its ruling sustaining the defendant hospital’s foundational objection to the testimony of Dr. Pateras [V13, 247; V14 23-24; R. V13, 234, 245, 246, 249] and (3) whether the trial court erred in refusing plaintiff’s Illinois Pattern Instructions which would have instructed the jury that they were permitted to award plaintiff compensation for past and future medical expenses. [R. V8, C1948].

JURISDICTION
Jurisdiction of this Court is invoked pursuant to Illinois Supreme Court Rules 301 and 303.
The trial court entered an order denying plaintiff Betty Kunz’s post-trial motion on May 18, 2006, which sought an additur for past and future medical expenses based on plaintiff’s verdict against defendant hospital, or, in the alternative, a new trial only on the issue of plaintiff’s past and future medical expenses against that defendant. [R. V9, C2015-C2016]. Betty Kunz timely filed a Notice of Appeal on June 8, 2006. [R. V9, C2021-C2022]. The Record on Appeal in this cause was filed with the Appellate Court on September 7, 2006. [R. V9, C2043].

STATEMENT OF FACTS
The trial of this medical negligence case took place from September 6, 2005, to September 23, 2005. On September 23, 2005, the jury returned a verdict in favor of plaintiff Betty Kunz and against defendant Little Company of Mary Hospital (“LCMH” or “the hospital”). [R. V8, C1964]. The jury entered a verdict of not guilty as to defendants Manor Care, Jue-Lin Tang, M.D. and Midwest Infectious Disease Consultants. [R. V8, C1964]. The trial court entered judgment on the verdict in the amount of $3,200,000.00. [R. V13, C1964].

Betty Kunz alleged at trial that she experienced gentamicin-related permanent kidney damage due to the negligence of the defendants. [R. V2, C403-C426]. The uncontested testimony at trial was that Mrs. Kunz would require dialysis for the rest of her life. [R. V13, 229-230].

A. Evidence establishing the liability of defendant hospital.

The jury heard testimony that Mrs. Kunz entered Little Company of Mary Hospital on June 7, 2000, for treatment of an infected right knee replacement. [R. V13, 117]. Dr. David Beezhold provided infectious disease consultation for the plaintiff during her hospital stay. [R. V11, 60]. Dr. Beezhold prescribed several antibiotics to treat the knee infection. [R. V11, 71]. Dr. Beezhold specifically prescribed a short course of a particular antibiotic-gentamicin-because it is nephrotoxic, or toxic to the kidneys. [R. V11, 85]. Dr. Beezhold testified that he did not want Mrs. Kunz discharged on gentamicin because of the drug’s potentially toxic effects on the kidneys. [R. V11, 94-95].

Mrs. Kunz was scheduled to undergo rehabilitation at Manor Care Nursing Home after her discharge from the hospital on June 10, 2000. [R. V13, 117]. Dr. Beezhold’s written plan for Mrs. Kunz was contained in her chart at the hospital. [R. V11, 65-66]. The chart containing that plan was available to the hospital’s nurses. [R. V11, 95]. Dr. Beezhold’s written plan in the chart specifically stated that Mrs. Kunz was to receive the intravenous antibiotic vancomycin and the oral antibiotic Rifampin after discharge. [R. V11, 63-67]. Dr. Beezhold’s plan did not include the antibiotic gentamicin. [R. V11, 63-67].

Because Dr. Beezhold was on vacation, a LCMH employee, Nurse Halina Ciezkowski, contacted Dr. Russell Petrak by phone on June 10, 2000, to obtain discharge orders for the plaintiff. [R. V11, 161-163]. Dr. Beezhold and Dr. Petrak were partners. Dr. Petrak testified that he would have asked the nurse for his partner’s written plan. [R. V11, 161-163]. Nurse Ciezkowski had no memory of what information she conveyed to Dr. Petrak from the plaintiff’s chart. [R. V12, 20]. Dr. Petrak testified that he relied upon nurses to provide him with accurate information from the chart. [R. V11, 164-165; 178-179].

Contrary to Dr. Beezhold’s plan, Dr. Petrak’s discharge order stated that the plaintiff was to be discharged to ManorCare on IV vancomycin and gentamicin. [R. V11, 168]. Dr. Petrak testified that gentamicin would have been included in the order only if Nurse Ciezkowski had conveyed the wrong information to him regarding Dr. Beezhold’s discharge plan of care for the plaintiff. [R. V11, 168-169].

Nurse Ciezkowski drafted a Patient Transfer Form that accompanied Mrs. Kunz upon discharge from the hospital to the nursing home. [R. V12, 74-76]. The purpose of the transfer form is to inform the receiving facility–the nursing home–of the medications the patient is to receive after transfer. [R. V13, 105]. Regarding gentamicin, Nurse Ciezkowski listed on the Patient Transfer Form: “gentamicin 120 milligrams, IV piggyback every 12 hours, next dose, 9:00 p.m. today, 6/10.” [R. V6, C1398]. This was contrary to Dr. Beezhold’s plan. [R. V11, 63-67].

Dr. Jue-Lin Tang, the plaintiff’s attending physician at the nursing home, testified that he relied on the transfer form in order to follow the treatment plan previously established by the plaintiff’s prior hospital physicians. [R. V12, 141-142]. Based on Nurse Ciezkowski’s action in listing gentamicin on the Patient Transfer Form, Dr. Tang and nursing home staff gave Mrs. Kunz a long course of gentamicin at the nursing home. [R. V12, 142].

Plaintiff’s nursing expert, Cheryl Vajdik, RN, testified that Nurse Ciezkowski deviated from the standard of care by listing gentamicin on the plaintiff’s transfer form to the nursing home. [R. V14, 90-91]. Nurse Vajdik further testified that the nursing standard of care required a registered nurse to accurately convey information to a physician, and to properly transcribe medication information in a patient’s records. [R. V14, 90; 124].

Plaintiff’s expert in infectious disease and internal medicine, Dr. Keith Armitage, rendered a similar opinion-if the hospital nurse conveyed incorrect information regarding Dr. Beezhold’s plan, the nurse deviated from the standard of care for a nurse/physician communication. [R. V12, 176-177]. Dr. Armitage testified that Nurse Ciezkowski’s deviations from the standard of care were a proximate cause of Betty Kunz's ultimate kidney failure and need for lifetime dialysis. [R. V12, 152-153].

The testimony at trial established that each dose of gentamicin had a potentially toxic effect on Mrs. Kunz’s kidneys. [R. V12, 168]. Dr. Armitage testified that each unintended dose of gentamicin Betty Kunz received after her transfer from the defendant hospital to the nursing home caused injury to her kidneys. [R. V12, 176-177].

B. Evidence regarding Betty Kunz’s special damages.

At the time of trial, Betty Kunz was 81 years old. [R. V5, C1142]. She suffered from permanent kidney failure due to the prolonged dose of gentamycin she received in June of 2000. [R. V13, 229-230]. She had undergone kidney dialysis three days per week since September of 2000. [R. V6, C1366].

Betty Kunz’s trial testimony was recorded via an evidence deposition taken on February 8, 2005. [R. V6, C1354]. Betty Kunz testified in her evidence deposition that she had received medical bills due to her kidney problems. [R. V6, C1374]. In her evidence deposition, Mrs. Kunz confirmed the amounts of her medical bills, and that those bills had been paid. [R. V6, C1374-C1378].

For example, Mrs. Kunz testified that she had received bills from a facility named Renal Care Group for her dialysis treatments. [R. V6, C1376]. The bills from that facility amounted to $1,136,836.78. [R. V6, C1376]. Mrs. Kunz testified in her evidence deposition, without objection, that those bills had been paid. [R. V6, C1376].

Before trial, on December 3, 2004, the plaintiff produced to defendants copies of all medical bills incurred due to defendants’ negligence. [R. V3, C576-V4, C913]. The total bills that Mrs. Kunz identified in her evidence deposition as having been paid amounted to $1,209,795.30. [R. V3-V4, C576-C913].

On July 21, 2005, the Illinois Supreme Court issued its opinion in Arthur v. Catour, 216 Ill. 2d 72 (2005). Plaintiff’s counsel believed that plaintiff’s medical expenses were covered under the Medicare insurance plan, under which Medicare would pay a contractually set discounted rate for the plaintiff’s medical charges. [R. V3, C576-V4, C913; V5, C1141]. On July 22, 2005, the plaintiff filed “Plaintiff’s Supplemental Rule 213(f) Disclosures.” [R. V5, C1141]. In the disclosure, the plaintiff supplemented the opinions of retained expert Dr. Vincent Pateras by identifying the following additional opinions:

The charges incurred by Betty Kunz since June 15, 2000, up to the present, including the charges for renal dialysis and related care at Renal Care Group, for surgeries to place a subclavian dialysis catheter in her chest at Little Company of Mary Hospital, for medication related to her kidney failure, and for care by nephrology specialists and other consultants, were customary, reasonable and necessary charges for Betty Kunz’ [sic] renal care and treatment, and were necessitated by the the negligence of the defendants in allowing Betty Kunz to receive an unnecessarily prolonged course of gentamycin [sic], and the resulting gentamycin [sic] toxicity and permanent renal failure.

Mrs. Kunz will be 81 years old at the time of trial. More likely than not, to a reasonable degree of medical certainty, she has a normal life expectancy. Statistically, her life expectancy is 9.1 years. Mrs. Kunz will need to undergo dialysis until the end of her life, as well as undergo periodic replacement of her subclavian dialysis catheter. She will incur charges for the dialysis, as well as for periodic replacement of her subclavian dialysis catheter, until the end of her life. [R. V5, C1142].

The defendants did not file any Rule 213(f) expert disclosure identifying an expert who would testify regarding the reasonableness or necessity of plaintiff’s medical expenses.

Based on the Illinois Supreme Court’s decision in Arthur v. Catour, plaintiff’s counsel did not believe that they could present to the jury in good faith the plaintiff’s prior evidence deposition testimony, wherein Mrs. Kunz testified as to the full amounts of her medical bills, and that the full amounts were paid. [R. V14, 38]. Thus, plaintiff’s counsel advised the trial court at the outset of trial that plaintiff would voluntarily withdraw the evidence deposition testimony that stated that the bills were paid. [R. V14, 38-39].

Dr. Vincent Pateras is a licensed physician in Illinois, and board-certified in nephrology. [R. V2, C484]. He is on the faculty at the Northwestern University School of Medicine-Feinberg School of Medicine, and teaches medical students at Evanston Hospital. [R. V13, 243]. During his career Dr. Pateras had been the director of the dialysis unit at Evanston Hospital for over twenty years. [R. V13, 242]. Dr. Pateras testified that during his forty-year career as a practicing nephrologist, he had been involved with dialysis facilities, and he affirmed that he was familiar with the operation of dialysis centers and facilities. [R. V13, 212].

At trial Dr. Pateras testified that as a result of Mrs. Kunz's prolonged course of gentamycin in June of 2000, she experienced permanent renal failure. [R. V13, 229-230]. As a result, she has needed dialysis, and will need dialysis for the rest of her life. [R. V13, 229-230]. Dr. Pateras testified that the plaintiff has a normal life expectancy. [R. V14, 2]. The life tables read into evidence established that the statistical life expectancy for a person the plaintiff’s age is 9.1 years. [R. V5, C1142].

Before the jury, Dr. Pateras referred to a diagram of a dialysis machine and explained in detail for the jury what dialysis is, and how the dialysis process works. [R. V13, 230-231]. Dr. Pateras then testified that he was familiar with the customary, reasonable and necessary charges for dialysis services in the area. [R. V13, 234].

Counsel for the defendant hospital objected to Dr. Pateras’ testimony on the issue of the plaintiff’s medical charges. [R. V13, 234, 245, 246, 249]. The trial court sustained the objection on the basis of foundation. [R. V13, 234, 245, 246, 249].

Plaintiff’s counsel then elicited further testimony from Dr. Pateras to establish the foundation for his opinion regarding the plaintiff’s dialysis charges. [R. V13, 249]. This testimony included Dr. Pateras’ twenty years as director of the dialysis unit at Evanston Hospital, his current faculty position at Northwestern Medical School, and his status as a licensed physician familiar with the dialysis process. [R. V13, 242; 243; 146] Dr. Pateras further testified, without contradiction:

Q. Doctor, are you familiar with the cost on an annual basis currently of what it costs to get dialysis in the Chicago area?

A. Yes, I am. [R. V13, 249].

When plaintiff’s counsel once more attempted to elicit Dr. Pateras’s opinion whether plaintiff’s past dialysis charges had been customary, reasonable and necessary, the trial court again sustained the foundational objection by the hospital’s counsel. [R. V13, 249]. The trial court denied plaintiff’s counsel’s oral motion to explain the court’s ruling on the issue. [R. V13, 247]. However, the trial court did state that Dr. Pateras had “not demonstrated any experience at all in billing for these services.” [R. V13, 247].

Plaintiff’s counsel requested an Offer of Proof regarding Dr. Pateras’s testimony. [R. V14, 23-24]. In the Offer of Proof, Dr. Pateras testified that he was familiar with the charges for hemodialysis in the Chicago area. [R. V14, 23-24]. The cost of hemodialysis for one person per year is approximately a quarter of a million dollars. [R. V14, 23-24].

In the Offer of Proof, Dr. Pateras rendered the opinion that the plaintiff’s medical bills, set out in total in Plaintiff's Trial Exhibit No. 20, were reasonable, necessary and customary charges for renal care. [R. V14, 24]. Plaintiff also submitted as part of the Offer of Proof that Dr. Pateras would have testified, if allowed by the Court, that the plaintiff’s medical bills in the amount of $1,321,104 were customary, reasonable and necessary for the kidney dialysis services received by plaintiff to the date of trial. [R. V14, 24]. Dr. Pateras also would have testified that the plaintiff’s need for dialysis would continue for the rest of her life, and that future dialysis charges would amount to $250,000 per year. [R. V14, 23-24].

The plaintiff tendered a verdict form that included a line item for past and future medical expenses. [R. V8, 1956]. The trial court refused that instruction. [R. V8, C1956].

The jury signed a verdict for the plaintiff against Little Company of Mary Hospital. [R. V9, C2026]. The jury acquitted the other defendants. [R. V9, C2026]. The jury awarded the plaintiff $3,200,000, itemized as follows: $1,900,000 for past and future pain and suffering; $1,000,000 for loss of a normal life; and $300,000 for disfigurement. [R. V9, C2026]. Both the plaintiff and defendant hospital filed Post Trial Motions. [R. V8, C1971-V9, 2002]. The plaintiff sought an additur or a new trial solely on the issue of the plaintiff’s past and future medical expenses. [R. V8, C1986-V9, 2002]. The trial court denied the motions. [R. V9, C2015-C2016].

ARGUMENT

I. STANDARD OF REVIEW.

This Appellate Court can reverse a trial court’s decision on the admission of expert testimony based on the trial court’s abuse of discretion. See Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). An abuse of discretion occurs when the trial court’s ruling is arbitrary, fanciful or unreasonable, or when no reasonable person would take the same view, or if the trial court applies impermissible legal criteria. Agnew v. Shaw, 355 Ill.App.3d 981, 990 (1st Dist. 2005). A trial court’s erroneous evidentiary ruling which results in harm or prejudice to a plaintiff’s case may support a reversal by this Appellate Court. Bafia v. City Int'l Trucks, 258 Ill.App.3d 4, 10-11 (1st Dist. 1994).

II. THE TRIAL COURT RULED ARBITRARILY, UNREASONABLY AND APPLIED IMPERMISSIBLE LEGAL CRITERIA IN BARRING DR. PATERAS’ EXPERT TESTIMONY ON PLAINTIFF’S MEDICAL BILLS.

Before our Supreme Court’s decision in Arthur v. Catour, a trial court would admit the full amount of a plaintiff’s medical bills into evidence based solely on testimony by the plaintiff that the bills were for treatment rendered due to a defendant’s negligence, and that the bills had been paid. See Arthur, 216 Ill.2d at 81-82, (citing Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 349 (1925), Flynn v. Cusentino, 59 Ill.App.3d 262 , 266 (3d Dist. 1978)). However, based on the language in Arthur, in cases where an insurer has not actually paid the total billed amount of a medical bill, a plaintiff can no longer make a prima facie case of reasonableness based on the bill alone. Arthur, 216 Ill.2d at 82. Instead, the plaintiff in a case where an insurer has paid a discounted rate on a medical bill, for example, must show through testimony that the total charges are customary, reasonable and necessary. Id. at 83.

In our case, Betty Kunz had testified prior to trial that she had received medical bills for her kidney treatments, and that these bills had been paid. [R. V6, C1376]. However, to comply with the dictates of the Arthur decision, the day after the Supreme Court’s opinion was released she further disclosed that her expert nephrologist would testify at trial that her past and future medical charges were customary, reasonable and necessary. [R. V5, C1142].

The plaintiff’s expert, Dr. Pateras, a kidney specialist, medical professor, and long-time director of a hospital dialysis unit, testified at trial that Betty Kunz had suffered permanent kidney damage as a result of the defendants’ negligence. [R. V13, 229-230]. He testified that Mrs. Kunz had needed dialysis to treat her kidney damage, and that she would need dialysis for the rest of her life. [R. V13, 230]. Dr. Pateras then testified that he was familiar with the annual cost of dialysis in the Chicago area. [R. V13, 234].

The trial court ruled arbitrarily, unreasonably and applied impermissible legal criteria in barring Dr. Pateras from rendering the expert opinion that the plaintiff’s past and future medical charges were customary, reasonable and necessary. While the trial court refused to provide an explanation on the record for its ruling [R. V14, 23-24], the trial court intimated that a possible reason for the decision was that Dr. Pateras was not a billing person. [R. V13, 247]. However, the plaintiff tendered Dr. Pateras as an expert [R. V5, C1141], and whether or not he had expertise in the billing process affected at most the weight of his testimony, not its admissibility.

A. Dr. Pateras had knowledge and experience beyond that of the average juror regarding dialysis charges.

Expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact in understanding the evidence. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). For an individual to be allowed to testify as an expert, they “need only have knowledge and experience beyond that of an average citizen.” Thompson v. Gordon, 221 Ill. 2d 414 (2006).

Our Supreme Court has explicitly stated, “the weight to be assigned to an expert opinion is for the jury to determine in light of the expert’s credentials and the factual basis of his opinion.” Snelson v. Kamm, 204 Ill.2d 1, 27 (2003). In Noakes v. National Railroad Passenger Corp., 363 Ill. App. 3d 851, 858 (1st Dist. 2006), this Court addressed the question of whether the plaintiff’s treating doctors had sufficient foundation to testify regarding the cause of plaintiff’s carpal tunnel syndrome. Despite the fact that there were elements of the plaintiff’s work of which the experts were unaware, this court held that the trial court had abused its discretion in barring the physicians’ testimony. Noakes, 363 Ill. App. 3d at 859. This Court found that any lack of knowledge regarding a particular element of the plaintiff’s work should go only to the weight of the testimony, not its admissibility. Noakes, 363 Ill.App.3d at 859.

The Illinois Supreme Court’s recent decision in Thompson v. Gordon, 221 Ill. 2d 414, 429 (2006), held that the only foundation required to offer an expert opinion is knowledge “beyond that of an average citizen.” The Supreme Court upheld a decision allowing an engineering expert to testify despite the engineer having violated state law in practicing without a license. Thompson, 221 Ill.2d at 430. The Supreme Court reasoned that the tendered expert’s experience in the engineering industry gave him knowledge “beyond that of an average citizen,” and his lack of a license, despite the fact that it was a crime, should only go to the weight of his testimony, not admissibility. Thompson, 221 Ill. 2d at 430.

“The basis for a witness' opinion generally does not affect his standing as an expert; such matters go only to the weight of the evidence, not its sufficiency.” Snelson v. Kamm, 204 Ill.2d at 26. The weight to be assigned to an expert opinion is for the jury to determine in light of the expert's credentials and the factual basis of the expert’s opinion. Id. at 27.

In Wilson v. Clark, 84 Ill. 2d 186, 194 (1981), the Illinois Supreme Court held that an expert may give an opinion without even disclosing the underlying facts or data. Rather, the adverse party has the ability during cross�examination to elicit the facts underlying the expert opinion. Wilson, 84 Ill. 2d at 194. In our case, the defense would have had ample opportunity to cross-exam Dr. Pateras and attack the credibility of his testimony as to reasonableness of plaintiff’s medical charges. The defendants would have had every opportunity to downplay the weight that the jury should give the testimony by questioning the doctor and challenging the reasonableness of the medical bills.

In Gill v. Foster, 157 Ill. 2d 304, 317 (1994), the Illinois Supreme Court found that the trial court abused its discretion in barring a general surgeon from rendering standard of care opinions against a defendant radiologist. Admissions by the plaintiff’s expert general surgeon that he did not practice radiology, and at times relied upon radiologists to interpret X-rays in complicated cases, did not necessarily negate his qualifications as an expert in radiology. Id. The expert’s reliance on the opinions of others “[went] only to the weight of his opinion, not the admissibility of it.” Id. at 316.

In Silverstein v. Brander, 317 Ill. App. 3d 1000, 1008 (1st Dist. 2000), the trial court found the plaintiff’s medical expert, an internist, unqualified to testify that the defendant physiatrist had violated the standard of care with regard to the management of the plaintiff during his rehabilitation from a hip replacement. This Appellate Court reversed, finding the trial court abused their discretion in barring an expert qualified to testify based on his prior medical management of 100 patients following hip replacement surgery. Silverstein, 317 Ill. App. 3d at 1008.

In Ayala v. Murad, 2006 WL 2613521 (1st Dist. 2006), this Court recently found an abuse of discretion in a case in which a physician was barred from testifying regarding what the potential treatment of a cancer patient would have been had the patient been properly diagnosed. The court held that, despite the doctor’s ultimate reliance on the treatment decisions of oncologists, his general familiarity with the course of treatment coupled with his experience monitoring cancer patients undergoing treatment was sufficient to qualify him to testify. Id.

Ms. Kunz’s medical bills largely consist of dialysis charges. [R. V7, C1676-C1749; V8, C1752-1892]. Dr. Pateras testified as to his 20 years experience as a director of a dialysis center in the Chicago area. [R. V13, 242-243]. Dr. Pateras has been involved in the field of nephrology for over 40 years. [R. V13, 209]. This expert was, at the time, of trial a professor on the faculty of the Northwestern University School of Medicine. [R. V13, 243]. The doctor testified that he was familiar with dialysis charges in the Chicago area, and was able to state the current reasonable amount of the charges on an annual basis. [R. V13, 249]. There is no evidence in the record to contradict Dr. Pateras’s experience, his knowledge of the reasonable amount of dialysis charges, or his ultimate opinion regarding the reasonableness of the plaintiff’s dialysis charges.

As articulated in Gill, later in the Thompson case, and in all of the cases discussed above, the overwhelming trend in Illinois is to allow a jury to be the ultimate arbiter of the credibility of witness testimony and the weight to be given evidence. The essential requirement is that the testimony assist the jurors in making an ultimate finding of fact. The ultimate question in terms of admissibility of Dr. Pateras’s testimony is whether or not he had more knowledge of dialysis charges than the average juror. The answer to that question is clearly that he did.

Dr. Pateras had ample qualifications, a tremendous amount of experience in the field, and testified without contradiction that he did have knowledge of the customary charges for dialysis services rendered in the area. [R. V13, 234]. By sustaining the foundational objection to Dr. Pateras’s testimony, the trial judge arbitrarily and unreasonably found that Dr. Pateras knew less about the past and future cost of dialysis than an average juror. The trial court’s refusal to allow the jury to hear that testimony on the basis of lack of foundation was an abuse of discretion.

B. Illinois law does not establish rigid criteria regarding who can testify as to the reasonableness of charges.

In order to recover for medical expenses in Illinois, “the plaintiff must prove that he or she has paid or become liable to pay a medical bill, that he or she necessarily incurred the medical expenses because of injuries resulting from the defendant’s negligence, and that the charges were reasonable for services of that nature.” Arthur v. Catour, 216 Ill. 2d 72, 82 (2005). A party seeking the admission of an unpaid bill into evidence “can establish reasonableness by introducing the testimony of a person having knowledge of the services rendered and the usual and customary charges for such services.” Arthur, 216 Ill. 2d at 82.

Once the witness is shown to possess the requisite knowledge, the reasonableness requirement necessary for admission is satisfied if the witness testifies that the bill is fair and reasonable. Diaz v. Chicago Transit Auth., 174 Ill. App. 3d 396, 405 (1st Dist. 1988). Illinois courts have never required that an expert have any particular background or experience in order to testy as to reasonableness of medical charges. The Court in Arthur required that a witness only have the “knowledge of the services rendered and the usual and customary charges for such services rendered.” Arthur, 216 Ill.2d at 82.

There is ample evidence and testimony on record showing that Dr. Pateras had this knowledge and the record is devoid of evidence contradicting Dr. Pateras’s testimony. The Supreme Court in Arthur does not require the witness be a treating physician. The Arthur Court does not require the witness be a hospital administrator. The Arthur Court does not require the witness be someone with detailed knowledge of the billing process. The decision requires only a “knowledgeable witness” verify the reasonableness of the medical bills. Arthur, 216 Ill. 2d at 82.

Dr. Pateras’s testimony as to the reasonableness of the plaintiff’s medical bills would have satisfied the requirements under Illinois law of admission of medical bills into evidence. Arthur, 216 Ill. 2d at 82. The ultimate decision as to an award of damages is left to the trier of fact. Id.

The trial court’s decision to sustain defendants’ objections to Dr. Pateras’s opinion testimony prevented the admission of plaintiff’s medical bills into evidence. [R. V13, 234, 245, 246, 249]. The trial court subsequently refused plaintiff’s tendered instructions and verdict form, which would have instructed the jury on awarding the plaintiff compensation for past and future medical expenses. [R. V8, 1956]. As a result of the trial court’s ruling, Betty Kunz lost provable damages amounting to $1,321,104 in past medical expenses. [R. V8, C1948; V3-V4, C576-C913]. Further, the jury was prevented from awarding future medical expenses to Betty Kunz of up to $250,000 per year. [R. V8, C1956; V14, 23-24].

III. CONCLUSION: THE PLAINTIFF SEEKS FROM THIS COURT A NEW TRIAL ONLY ON THE ISSUE OF HER PAST AND FUTURE MEDICAL EXPENSES.

Dr. Pateras was prepared to testify to the jury that Mrs. Kunz's dialysis charges between September 1, 2000, and March 28, 2005, in the amount of $1,321,104 were customary, reasonable and necessary charges for dialysis services. [R. V14, 23-24]. He was further prepared to testify that Mrs. Kunz would require dialysis treatment for the rest of her life at an annual costs of $250,000. The trial court sustained the objections to and barred that testimony. [V13, 234, 245, 246, 249]. The plaintiff respectfully submits that the trial court abused its discretion in making that ruling. The plaintiff requests that this matter be remanded to the trial court for a new trial only on the issue of plaintiff’s past and future medical expenses against defendant Little Company of Mary Hospital and Health Care Centers.


Respectfully submitted,


_____________________________
Christopher T. Hurley
Mark R. McKenna
HURLEY McKENNA & MERTZ
33 North Dearborn Street, Suite 1430
Chicago, Illinois 60602
(312) 553-4900
Attorneys for Plaintiff-Appellant

Bookmark: Bookmark Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at del.icio.us Digg Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at Digg.com Bookmark Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at Spurl.net Bookmark Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at Simpy.com Bookmark Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at NewsVine Blink this Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at blinklist.com Bookmark Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at Furl.net Bookmark Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at reddit.com Fark Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at Fark.com Bookmark Hurley%20McKenna%20%26%20Mertz%20brief%20in%20Kunz%20v.%20Little%20Company%20of%20Mary%20Hospital at Yahoo! MyWeb