Dollieslager v. Hurst

NO. 3--97--0591


IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

KIMBERLY A. DOLLIESLAGER ) Appeal from the Circuit Court
) of the 14th Judicial Circuit,
Plaintiff-Appellant, ) Rock Island County, Illinois
)
v. ) No. 96--MR--212
)
MICHAEL H.W. HURST, D.C. ) Honorable
) Ronald C. Taber
Defendant-Appellee. ) Judge, Presiding


Justice BRESLIN delivered the opinion of the court:


Does the Physicians Lien Act (Act) (770 ILCS 80/0.01 et seq.
(West 1996) require that a physician be able to demonstrate a
causal connection between an underlying event and the services he
rendered before his lien can attach to funds related to a patient's
tort action? We hold that it does. Therefore, we vacate and
remand.
FACTS
Plaintiff Kimberly Dollieslager was first treated by
defendant, Michael Hurst, a chiropractor, in November 1989 for
headaches, cervical pain, pain between her shoulders, stiffness of
the neck, and numbness in her arms. These symptoms arose sometime
in September 1989 and were diagnosed as being non-traumatic. In
December of that year, after 14 appointments, Dollieslager
discontinued her treatment with Hurst.
In February 1991, while participating in military operations
in Saudi Arabia, Kimberly fell off a truck. The fall resulted in
pain throughout her entire body. In November of that year,
Kimberly was involved in a serious car accident. Seven months
later, in June 1992 she returned to Hurst's office and informed him
that she was in pain. At that time, she informed him that she had
been in a car accident the previous year and noted that she was
injured in the accident and missed several days of work. She
complained of cervical pain, pain between the shoulders, lower back
pain, pain in the right hip, pain in the right leg and pain in her
right knee. These complaints were very similar to those made in
1989.
After treating Dollieslager, Hurst served a lien upon all the
necessary parties pursuant to the Act for services provided between
June and August 1992. The lien was in the amount of $2,720 and was
to attach to Dollieslager's cause of action or settlement stemming
from the car accident. Dollieslager's action relating to the
accident was subsequently settled for $6,500.
Dollieslager moved for a declaratory judgment requesting that
the court declare the lien null and void on the basis that Hurst
was unable to demonstrate that the treatment he provided in 1992
was causally related to the car accident. Without a causal
relation, she contended that the lien could not attach and was
therefore void.
A bench trial followed wherein Hurst was asked whether, with
a reasonable degree of chiropractic certainty, he was able to state
if there was a causal connection between Dollieslager's complaints
in 1992 and the car accident in 1991. Because of the prior
complaints in 1989 and the incident in Saudi Arabia, Hurst admitted
that it was impossible to determine exactly what injuries were
caused by the accident. He assumed that matters not previously
addressed during her prior treatment were caused by the accident.
Furthermore, he stated that he had to rely on Dollieslager's
statement to him that she was seeking treatment for pain following
her accident. At the end of Hurst's testimony, the court denied
the motion for declaratory judgment. It concluded that
Dollieslager had the burden of proving that there was no causal
relationship between the accident and the medical treatment and
that she failed to carry her burden. This appeal followed.
ANALYSIS
In light of the fact that this case centers around the
interpretation of the Act as a whole, we will begin by setting out
its relevant parts.
" 1. Every licensed physician practicing in this
State who renders services by way of treatment to
injured persons, except services rendered under the
provisions of the Workers' Compensation Act or the
Workers' Occupational Diseases Act, shall have a
lien upon all claims and causes of action for the
amount of his reasonable charges up to the date of
payment of such damages.
Provided, however, that the total amount of
all liens hereunder shall not exceed of the sum
paid or due to the injured person on the claim or
right of action, and provided further, that the
lien shall in addition include a notice in writing
containing the name and address of the injured
person, the date of the injury, the name and
address of the licensed physician practicing in
this State, and the name of the party alleged to be
liable to make compensation to such injured person
for the injuries received, which notice shall be
served on both the injured person and the party
against whom such claim of right of action exists.
* * *
 2. The lien of any such licensed physician
practicing in this State shall, from and after the
time of service of the aforesaid notice, attach to
any verdict, judgment or order secured in any suit
or action by the injured party based on the
negligent or wrongful act, and to any money or
property which may be recovered by compromise
settlement, or in any suit or action brought by
such injured person on account of such claim or
right of action.
* * *
 3. Any party to a cause pending in a court
against whom a claim shall be therein asserted for
damages resulting from injuries shall, upon request
in writing, be permitted to examine the records of
the physician in reference to the examination and
treatment of the injured person. Any physician
claiming a lien under this Act shall, within 10
days of being so requested in writing by any such
party, furnish to such party, or file with the
clerk of the court in which the cause is pending, a
written statement of the nature and extent of the
injuries sustained by and the treatment given to
the injured person by such physician and the
history, if any, as given by the injured person,
insofar as shown by the records of the physician as
to the manner in which the injuries were received.
 4. Any party against whom a claim shall be
therein asserted for damages resulting from
injuries shall, upon request in writing, be
permitted to examine the records of the physician
in reference to the examination and treatment of
the injured person. Any physician claiming a lien
under this [A]ct shall, within ten days of being so
requested in writing by any such party, furnish to
such party, a written statement of the nature and
extent of the injuries sustained by and the
treatment given to the injured person by such
physician and the history, if any, as given by the
injured person, insofar as shown by the records of
the physician as to the manner in which the
injuries were received." 770 ILCS 80/1-4 (West
1996).
Dollieslager argues that this language clearly requires that
the lien be voided because Hurst cannot demonstrate that the
symptoms treated in 1992 were causally connected to the accident.
She maintains that evidence of a causal connection between
treatment and injuries received is a necessary prerequisite to the
application of the Act. Hurst, on the other hand, contends that
the Act does not by its language require such proof and to do so
would be an improper amendment of the Act which has been in
existence since 1959.
The primary rule of statutory construction is to ascertain and
give effect to the intent of the legislature. Bruso v. Alexian
Brothers Hospital, 178 Ill. 2d 445, 451, 687 N.E.2d 1014, 1016
(1997). The legislature's intent is best demonstrated by the
language of the statute itself. Bruso, 178 Ill. 2d at 451, 687 N.E.2d at 1016. Statutes imposing liens are construed liberally to
effectuate the purpose intended by the legislature, but they are
limited in operation by their terms. Cirrincione v. Johnson, 287
Ill. App. 3d 683, 678 N.E.2d 738 (1997); Meier v. Olivero, 279 Ill.
App. 3d 630, 665 N.E.2d 858 (1996). When construing the language,
the court must take the entire statute into account, considering
each section with every other section. Bonaguro v. County Officers
Electoral Board, 158 Ill. 2d 391, 634 N.E.2d 712 (1994). The court
should take caution not to inject provisions which have not been
included by the legislature, (Gaskill v. Robert E. Sanders Disposal
Hauling, 249 Ill. App. 3d 673, 619 N.E.2d 235 (1993); In re
Objection of Cook, 122 Ill. App. 3d 1068, 462 N.E.2d 557 (1984)),
however, a statute's provisions should not be construed so
technically so as to undermine its remedial purpose (Aluma Systems,
Inc. v. Frederick Quinn Corp., 206 Ill. App. 3d 828, 564 N.E.2d 1280 (1990)).
Looking to the Act as a whole, we find repeated references to
a particular injury or a particular cause of action. Section 1
limits the lien to reasonable charges for services rendered to
injured persons up to the date the damages are paid. It further
requires the physician to provide notice of the name of the injured
person, the date of the injury, and the party alleged to be liable.
770 ILCS 80/1 (West 1996). Section 2 provides that the lien will
attach to any action by the patient "based on the negligent or
wrongful act," as well as any money or property recovered by
settlement "on account of such claim or right of action" (Emphasis
added.) 770 ILCS 80/2 (West 1996).
In our opinion, this language evidences an intent of the
legislature to limit physician liens to particular causes of action
for which the physician's services are related. This is evident
given the Act's specification that the lien attaches to a
particular cause or claim relating to the conduct of a particular
tortfeasor.
Sections three and four further demonstrate an intent to
require a causal connection. Both relate to a party's right to
examine the physician's records. Upon written request, the
physician must also provide a statement as to the extent of the
injuries sustained, the treatment given and "the history, if any,
as given by the injured person, insofar as shown by the records of
the physician to the manner in which the injuries were received."
770 ILCS 80/3-4 (West 1996). If there is no causal relation
between the tortfeasor and the injury, this section could mandate
that the physician disclose privileged information. Such a result
would be absurd and was clearly not intended by the legislature.
Requiring a causal connection between the treatment and the
conduct of the tortfeasor is also supported by Gaskill, 249 Ill.
App. 3d 673, 619 N.E.2d 235. There the court was faced with the
issue of whether the Act allowed the recovery of interest in
addition to the physician's unpaid balance. The court held that
interest was not recoverable under the Act because it was not a
"reasonable charge" within the scope of the Act which, the court
stated, is "confined to charges relating to injuries to the patient
resulting from the conduct of the tortfeasor from whom comes the
recovery against which the doctor's lien is asserted ***." Gaskill,
249 Ill. App. 3d at 677, 619 N.E.2d at 238.
Gaskill thus recognizes that there must be a connection
between the tortfeasor's conduct and the treatment for which the
lien is created. We agree. We therefore hold that in order to
claim a lien under the Act, the services upon which the charges are
based must be related to the injury caused by the tortfeasor.
Hurst argues that this interpretation does violence to the
rules of statutory construction and contravenes the Gaskill court's
recognition that the court should not inject provisions not found
in the statute. What Hurst fails to recognize is that requiring a
connection between the tortfeasor's conduct and the services
rendered involves more than just a technical prerequisite of the
statute; it is a fundamental aspect of the Act. The Act's repeated
reference to a particular cause of action and an injury arising
therefrom leads us to believe that the legislature intended to
allow a physician a method of securing payment for his services
which are solely related to a particular tortious event.
What remains to be determined is when and how the physician
must demonstrate that there is a connection. The statute merely
requires notice of when the event took place. In most instances,
this is as much information as will be necessary with respect to
causation because it is often simple to demonstrate that an injury
was the result of a specific event. As noted above, this is not
such a case because the underlying cause of action against the
tortfeasor involved complaints similar to those treated in 1989,
and there was an intervening event in Saudi Arabia. In such a
case, we believe that the physician should have the added burden,
when called to task, to demonstrate a causal connection between the
tortfeasor's conduct and the services rendered. The testimony need
not be based on absolute authority, but should, with a reasonable
degree of medical certainty, establish that the services rendered
relate to the injuries resulting from the tortious event. See
generally Frankenthal v. Grand Trunk Western R.R. Co., 120 Ill.
App. 3d 409, 458 N.E.2d 530 (1983); Redmon v. Sooter, 1 Ill. App.
3d 406, 274 N.E.2d 200 (1971); Cleary and Graham's Handbook of
Illinois Evidence (6th Ed. 1994) pp. 602-03,  704.2; see also
Sisti v. Barker, 70 Ill. App. 3d 734, 388 N.E.2d 1117 (1979).
Absent such proof, the lien should not attach, or should be reduced
to the amount for which the physician can demonstrate a causal
connection. Amounts not recovered through the attachment of the
lien, and not otherwise recovered, can be thereafter sought through
a separate action.
The trial court refused to void the lien based on the fact
that Dollieslager failed to establish that the services were not
related to the car accident. In light of our holding placing the
burden on the physician, we vacate the trial court's judgment and
remand for a specific determination as to whether the physician can
establish a connection, and in what amount, given the evidence.
For the foregoing reasons, the judgment of the circuit court
of Rock Island County is vacated and remanded with directions.
Vacated and remanded with directions.
HOMER, J., concur.
McCUSKEY, P.J., dissenting.
Because the majority's analysis goes beyond the plain language
of the Act, I respectfully dissent.
The primary rule used in the interpretation of a statute is to
ascertain the true intent and meaning of the legislature. Kraft,
Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661 (1990).
The legislature's intent is best evidenced by the language of the
enactment. Kraft, 138 Ill. 2d at 189, 561 N.E.2d at 661.
Consequently, "where an enactment is clear and unambiguous a court
is not at liberty to depart from the plain language and meaning of
the statute by reading into it exceptions, limitations or
conditions that the legislature did not express." Kraft, 138 Ill. 2d at 189, 561 N.E.2d at 661. Indeed, "[t]he court must
interpret the statute on the basis of what was written and not
search for any subtle or not readily apparent meaning." (Emphasis
added.) Mid-American Elevator Co. v. Norcon, Inc., 287 Ill. App.
3d 582, 588, 679 N.E.2d 387, 391 (1996).
In this case, I find from the plain and unambiguous language
of the Act, no requirement that a physician must demonstrate a
causal connection between the underlying event and the services
rendered before his lien attaches. Notwithstanding the absence of
such a requirement, the majority goes far beyond the unambiguous
language of the Act and engages in a strained analysis attempting
to reach its desired result. The majority reads into the Act a
condition "that the legislature did not express." Kraft, 138 Ill. 2d at 189, 561 N.E.2d at 661.
The majority has clearly entered into the area of judicial
legislation which is an improper infringement into the province of
the General Assembly. See Village of Bolingbrook v. Citizens
Utilities Co., 158 Ill. 2d 133, 142-43, 632 N.E.2d 1000, 1004 (1994)
(stating that "[i]t is not for us to usurp a function accorded to
the General Assembly by the Constitution").
The intent of entering into the field of judicial legislation
is further evidenced by the fact that, now after having created its
causal requirement, the majority must answer the question of how
the physician demonstrates there is a connection. The majority
then proceeds to create even more law by placing upon the physician
the burden of demonstrating a causal connection. In reading this
requirement into the Act, the majority provides no statutory
authority whatsoever for its final conclusion.
It is a long established principle that "[i]t is not for the
courts to pass upon what the *** laws ought to be, but to declare
what they are." Kozak v. Retirement Board of the Firemen's Annuity
and Benefit Fund of Chicago, 95 Ill. 2d 211, 220, 447 N.E.2d 394,
399 (1983) (quoting People v. Wilcox, 237 Ill. 421, 428, 86 N.E. 672 (1908)). It is clear that in this case the majority has chosen
to amend the statute by judicial fiat. Accordingly, I dissent.