By: Mary M. Cunningham
Before 1985 in Illinois, all non-expert treating physicians were like any other witness who received a subpoena for trial: these witnesses were entitled to only a mileage fee. In 1985, the Illinois Supreme Court created Supreme Court Rule 204(c) which regulates the depositions of physicians. The Rule stated that a party “may pay a reasonable fee to a physician for the time he or she will spend testifying in a deposition.” In 1989, the Illinois Supreme Court modified the Rule stating the party “shall pay a reasonable fee to a physician for the time he or she will spend testifying at a deposition.” See Illinois Supreme Court Rule 204(c).
In changing the Rule, the Supreme Court articulated its recognition that physicians spend time away from their practice testifying, and should be compensated for that time lost. However, the Supreme Court also set forth various fee collecting restrictions, including that the physician can be compensated only for time spent testifying at the deposition, the fee should be paid only after the doctor has testified and it should not exceed an amount which reasonably reimburses the doctor for the time he or she actually spends testifying at the deposition.
In 2010 the First District Appellate Court further addressed the issue in Montes v. Mai. 398 Ill.App.3d 424 (1st Dist.2010). After deciding that a chiropractor is a “physician” under the Supreme Court Rule 204(c), the Court went on to address the concept of a reasonable fee. In the Montes case, a chiropractor sought $550 per hour for his deposition testimony with pre-payment and a two hour minimum. Opposing counsel offered $300 per hour, which the chiropractor refused. The defendant brought a Motion to reduce the doctor’s fees, claiming they were unreasonable. In evaluating what a reasonable fee was, the court reviewed personal and corporate records submitted by the doctor. The doctor’s deposition fees were calculated by the court based on his income listed in a W-2 and divided that by 52 weeks at 40 hours a week. This came out to $66.95 per hour. The chiropractor appealed the decision.
The Appellate Court upheld the fee calculated by the Trial Court. It also stated that the defendant was not required to pay a two hour minimum or pre-pay the doctor. He was to be paid after his deposition for the time he actually spent in deposition. The Court did go on to suggest that the Trial Court’s method of calculation is not the only means by which a fair and reasonable fee can be calculated and it is understood that there might be other ways to obtain a reasonable fee. It stated however that “. . . patently the best approach is for a physician and the parties seeking a deposition to discuss this matter and reach an agreement”.