IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
CHAMPAIGN COUNTY
URBANA, ILLINOIS
3 JAMES OSTERBUR
plaintiff
5 VS.
6 COVENANT MEDICAL CENTER,
Defendant.
TRANSCRIPT OF PROCEEDINGS
9 BE IT REMEMBERED AND CERTIFIED, that on, to-wit,
10 the 3d day of September A.D. 1993, the following
11 proceedings were had in the aforesaid cause before the
12 HONORABLE J. G. TOWNSEND, Judge Presiding.
13 APPEARANCES
JAMES OSTERRUR appearing Pro Se:
MICHAEL CORNYN Attorney-at-Law For the Defendant.
Proceedings reported and transcribed by: Nancy Sivertsen, CSR-CM, Official Court Reporter- in and for the Sixth Judicial Circuit of Illinois
1 THE COURT: This is Case No. 92 C 1222. Are you
2 James F. Osterbur, sir?
3 MR. OSTERBUR: Yes, I am.
4 THE COURT: Show the appearance of the plaintiff.
5 Now from my examination of this file, it does not appear
6 that you are represented by a lawyer
7 MR. OSTERBUR: I am not.
8 The Court: -- or were not at the time this was
9 filed.
10 MR. OSTERBUR: (Shakes head back and forth)
11 THE COURT: Do you continue to represent yourself
12 in connection with the matter here today?
13 MR. OSTERBUR: Yes, I do.
14 THE COURT: The plaintiff appears pro se. Mr.
15 Cornyn appears on behalf of the Defendant Covenant. I have
16 set this today for hearing on the Motion to Dismiss that
17 was filed, and I note that you have each filed memoranda
18 and other documents in connection with the Motion to
19 Dismiss. Now since you are not an attorney, and do not
20 regularly appear here and practice, I'll describe to you
21 the process that we'll use, Mr. Osterbur.
22 The party making the motion has the opportunity to
23 go first and tell me what their position on the motion is.
24 The party opposing the motion, that would be you, has an
1 opportunity, then, to speak when the movant is done. And
2 then, since the movant has the burden of carrying the day,
3 or the burden of demonstrating why their motion ought to be
4 allowed, they get an opportunity to go, then, last. They
5 get to go first and last. You'll have one opportunity to
6 speak in between Mr. Cornyn's opportunities. I may have
7 some questions I want to ask the two of you, and when both
8 of you finish with your opportunity to make your
9 presentations, I will either rule, or if I think I need
10 some further time to study the law, I may take a little
11 time to do that.
12 That's the general process that we're going to
13 follow. Are you prepared to speak to your motion, Mr.
14 Cornyn?
15 MR. CORNYN: Your Honor, just briefly, I think the
16 motion comes in three parts. First, that the Complaint
17 itself doesn't state a cognizable cause of action, and
18 there are deficiencies in the Complaint. It doesn't lay
19 out what the Complaint actually is, and what the relief
20 sought would be. Furthermore, it appears that that small
21 claims case that was filed, and I think brought to
22 conclusion, 92 S 1561, which has raised at least in part
23 some of these issues, would seem to me to preclude them
24 being re-raised. And finally, to the extent that this
1 Complaint really is about medical treatment, or bad medical 2 treatment, or what would be called medical malpractice, the 3 Civil Practice Act requires under Section 2-622 a 4 Certificate from a reviewing physician which states
5 basically that he's reviewed the situation, and in his
6 opinion, there may be grounds to proceed on a medical
7 malpractice theory. Since these things have not been done,
8 there is no Certificate, no compliance with Section 2-622,
9 we believe this case should be dismissed. Thank you.
10 THE COURT: Mr. Osterbur, what do you have to say
11 about this motion?
12 MR. OSTERBUR: I have prepared a statement that I'd
13 like to give you, and I have given one to the attorney just
14 shortly. I do have an original, but I forgot to staple it.
15 THE COURT: That's fine.
16 MR. CORNYN: And for the record, your Honor, I do
17 have a copy of that, and I have gone through it.
18 THE COURT: So the written material you presented
19 here is what you want to present today, and you do not want
20 to speak further.
21 MR. OSTERBUR I believe so.
22 THE COURT: All right. Well, give me a moment to
23 read this, then.
24 (The Court reviewed the document.)
1 THE COURT: For the record, I have read Mr.
2 Osterbur's written argument presented in connection with
3 the motion today, and will place the document I'm provided
4 in the file.
5 Mr. Osterbur, let me ask you a question or two
6 here, to try to focus my analysis on the case. If you
7 succeed in getting what you want as a result of this case,
8 what would you get?
9 MR. OSTERBUR: I would get the opportunity to
10 clearly define what the problems were in connection with
11 the treatment, and get some reimbursement. Not
12 reimbursement, but a reduction in the bill that I was
13 given. And then I would, at this point, and for this case,
14 have the Covenant Medical Center change their procedure, to
15 allow me to arbitrate without going to court, and without
16 such an extensive Procedure, to get to a point where I
17 could complain to them that my treatment was unfair, or the
18 billing, at least, was unfair as well. My treatment was
19 inappropriate.
20 THE COURT: Say the last part again.
21 MR. OSTERBUR: I say my treatment was
22 inappropriate.
23 THE COURT: And when you say treatment, are YOU
24 speaking of
1 MR. OSTERBUR: The way -
2 THE COURT: -- of medical treatment that led to the
3 billing, or the way you were treated in connection -
4 MR OSTERBUR: Last time.
5 THE COURT: -- the way you were treated in
6 connection with your complaint?
7 MR. OSTERBUR: Medical treatment that led to the
8 billing.
9 THE COURT: All right.
10 MR. OSTERBUR: I did not
11 THE COURT: So
12 MR. OSTERBUR I did not receive appropriate
13 treatment.
14 THE COURT: I want to try to restate, then, what I
15 think I heard you say, and I'd like for you to correct me
16 if I've misstated anything. As I understand it, there is a
17 billing dispute -
18 MR. OSTERBUR: There is.
19 THE COURT: -- and you want some relief by way of
20 an adjustment of the bill.
21 MR. OSTERBUR: That's correct.
22 THE COURT: The second, is that you want something
23 done with respect to the procedure -
24 MR. OSTERBUR: That this -
1 THE COURT: -- arbitration or mediation regarding
2 the bill.
3 MR. OSTERBUR: That's correct.
4 THE COURT: Is that correct?
5 MR. OSTERBUR: 'That's correct.
6 THE COURT: And thirdly, you have a complaint about
7 the actual medical treatment YOU received.
8 MR. OSTERBUR: For that would be the cause of why I
9 expect an adjustment in the billing, but I'm not at this
10 moment in time, or have not complained, or do not want to
11 make a case for malpractice. I want to make a case that
12 the treatment was poor, to bad, to worse, and I think I
13 have -- and you know, I want the opportunity to discuss
14 that without court in a legitimate manner.
15 THE COURT- To make sure I understand this now, you
16 do not make a claim for money damages alleging that somehow
17 their medical treatment of you was inappropriate.
18 MR. OSTERBUR: Medical treatment that I received
19 was inappropriate, and I believe that there is factual
20 basis for malpractice.
21 THE COURT: Well -
22 MR. OSTERBUR: However, I did not want -- you know,
23 that is not the reason I came to the to court in the first
24 place. Or well, that is the cause for the billing
7
1 adjustments, but I really don't want to get involved in
2 that type of court case. I just want to be able to state
3 the problem was this, have it heard in an appropriate
4 manner, and have it mediated appropriately, so that there's
5 an adjustment in the bill.
6 THE COURT: Well, Mr. Cornyn, I'm looking at a
7 piece of paper that has Mr. krchak's name on it. Mr.
8 Cornyn, what do you have to say about this in rebuttal?
9 MR. CORNYN: I'm trying to understand exactly what
10 the Complaint would be if it was re-cast under the Court's
11 questions just now, and it seems to me that in legal terms,
12 what Mr Osterbur would like me to do is enter some sort of
13 a declaratory judgment, and per-haps maybe with some sort of
14 injunctive relief, ordering the parties to sit down and
15 discuss a billing problem. And your Honor, I don't believe
16 that you can do that. I admit to some ignorance about the
17 prior history here, but on the basis of the court records
18 that I have seen, Covenant has not sued Mr. Osterbur for a
19 bill. That might be a very appropriate forum for Mr.
20 Osterbur to raise a complaint with the bill; I don't owe
21 it, I don't owe you that much, and here are the reasons
22 why. If Covenant had done that -- this is kind of, I
23 guess, a pre-emptive suit, saying that, I don't owe you the
24 money that you're claiming. He's not claiming damages if
8
1 it's not medical malpractice. Frankly, your Honor, I don't
2 know if medical malpractice raised as a defense to a bill
3 is governed by the provisions of 2-622. I think it is, I
4 think if you are going to assert in court that there has
5 been medical malpractice, you must have a certified
6 affidavit, but I've never seen medical malpractice raised
7 as a defense in an action, and so I'm not real sure of
8 that. But to the extent that he is simply asking that you
9 order, I guess, the parties to arbitrate or mediate, I
10 don't think you have the authority to do that. I'm unaware
11 of any law requiring that. There's no contract here that
12 has those kinds of provisions in it, in the normal way you
13 might get to mediation or arbitration. There's no
14 allegations that Covenant has made a claim. Covenant's not
15 the plaintiff here. I don't think, even if we could
*6 re-cast this Complaint under the questions of the Court,
17 and the responses Mr. Osterbur has just given, that this
18 Court has any power or authority to grant him the relief
19 that he's asking.
20 THE COURT: Now I want to make sure that I have
21 your position explicitly on the record here, Mr. Cornyn.
22 It is defendant's position that there is no written
23 agreement at all between plaintiff and defendant; is that
24 correct?
9
1 MR. CORNYN: Well, at least there's been none
2 alleged, your Honor. There's -- Obviously he's
3 complaining about a bill, and there's no written agreement
4 on this record. I'm unaware of a written agreement. I
5 believe what happened was that medical service was
6 rendered, and a bill was issued, which he's now disputing,
7 whether or not he should have even gotten the treatment, or
8 whatever that argument is. I'm unaware of any other kind
9 of writing, other than there may be a bill out there.
10 THE COURT: Are you aware of any sort of
11 administrative rule or regulations that govern the
12 defendant here, that in any way provides for, or rather,
13 requires mediation or arbitration with respect to billing?
14 MR. CORNYN: No, but in being perfectly candid with
15 the Court, I'm ignorant in that area. I don't know if such
16 a thing exists. I've never heard of one. I don't know of
17 any. I don't do a regular collection practice, but I'm
18 unaware of that, as such.
19 THE COURT: Are you aware of any statute which
20 provides for a mediation or arbitration process for medical
21 billing?
22 MR. CORNYN: No, your Honor.
23 THE COURT: Now I want to ask you those same
24 questions, Mr. Osterbur. They're not referred to in any of
10
1 your filings, and I just want to make sure that I
2 understand your position on the record here. Do you claim
3 that there is any state law that requires people in your
4 position, and in Covenant's position, to have arbitration
5 or mediation over billing questions?
6 MR. OSTERBUR: I'm not aware of, or have been
7 unable to find specific laws or statutes on that.
8 THE COURT: Are you aware of any administrative
9 regulation, or rule of anybody, that governs Covenant's -
10 that provides for, or requires them to mediate or arbitrate
11 billing questions?
12 MR. OSTERBUR: I've been unable to find statutes
13 for that as well.
14 THE COURT: I discern a suggestion in some of your
15 filings that you signed something, or there's some
16 suggestion that somebody in physical distress ought not be
17 put in a position of signing something, and from that I
18 discern the possibility that you may have signed something
19 when you were in there.
20 MR. OSTERBUR: When -
21 THE COURT: Is there any written agreement that you
22 believe you may have signed at Covenant?
23 MR. OSTERBUR: When I appeared at the emergency
24 room door and complained of heart pains, they gave me a
1 short piece of paper to sign, and I signed that.
2 THE COURT: Is that piece of paper anywhere, in any
3 of the files, in either of the court files that you know
4 of?
5 MR. OSTERBUR: I believe it's in the exhibits. I
6 didn't bring it with me, it's -
7 THE COURT: In the exhibits, in which file?
8 MR. OSTERBUR: It should be case 92 C 1222. It
9 should be exhibit A, I think.
10 THE COURT: While I'm looking for that, do you
11 believe that document has a provision in it that
12 provision for arbitration or mediation of billing disputes?
13 MR. OSTERBUR: No, it doesn't. It contains only a
14 declaration that Covenant can do whatever they want to, and
15 they are not responsible, or they won't be.
16 MR. CORNYN: If I might aid the Court, your Honor,
17 I don't believe the exhibits were attached to the Complaint
18 that we've got, but on the very last two or three pages
19 from the last page of the Complaint, there's a caption
20 called Covenant Evidence, called Evidence Summary, and then
21 there's exhibits listed; an Exhibit A identified as an
22 authorization for medical treatment.
23 THE COURT: Well, there are some later-filed
24 documents that are exhibits here that I Presume may be
12
1 MR. OSTERBUR: That may be it.
2 THE COURT: -- that I presume may be further
3 exhibits.
4 MR. OSTERBUR: There is no billing agreement,
5 except for the authorization for medical treatment.
6 THE COURT. Well, I understand that Mr. Osterbur is
7 not desirous of presenting a claim for what is commonly
8 called medical malpractice, and that is not his purpose in
9 presenting this Complaint; and accordingly, I will not
10 undertake to address the pleadings in view of any of the
11 requirements that exist for pleadings and certificates with
12 respect to medical malpractice.
13 With respect to the question of adjustment of
14 billing, and mediation or arbitration of billing disputes,
15 I have considered the filings which are present here, and
16 the Motion. I understand that Covenant has not made a
17 claim in a court against Mr. Osterbur for -- yes, sir?
18 MR. OSTERBUR: They have given my name to a
19 collection agency, which did pre-empt this entire court
20 matter.
21 THE COURT: Okay, but they've not sued you
22 anywhere; is that correct?
23 MR. OSTERBUR: They've not sued me.
24 THE COURT: I understand there's not a lawsuit
13
1 pending with respect to any claim for medical services.
2 Now the function of somebody in my position as a
3 judge, is to either enforce the statutes which the
4 legislature has enacted, and the governor has signed, and
5 which are the laws of our state; or to construe and enforce
6 agreements between private parties, when there's a dispute
7 over those agreements. My examination of the filings here,
8 and my questioning of the plaintiff and the defendant's
9 attorney here, leads me to conclude that there is no
10 written agreement between the parties that addresses
11 mediation or arbitration, or requires some particular
12 framework for discussion of billings. I know of no statute
13 or regulation which requires the plaintiff and the
14 defendant in this case to engage in arbitration, or
15 mediation, or discussion of the billing disputes, and
16 neither the plaintiff, nor the defendant's attorney, cite
17 me to any statute or regulation which addresses the
18 question of mediation or arbitration. I simply am not in a
19 position -- and no judge, I suggest, is in the position -
20 to sort of make up the rules, so that society acts the way
21 that you think society ought to act.
22 Even if I agree with you, Mr. Osterbur, that there
23 ought to be a simpler and more convenient way to get face
24 to-face with people that you apparently have a billing
14
1 dispute, with since there is no private agreement for me to
2 look at and enforce, since there is no administrative rule,
3 or regulation, or law for me to construe or enforce here,
4 there isn't any recognized cause of action stated in your
5 Complaint, there's nothing that I could enforce by
6 proceeding with the lawsuit, so, I am going to grant the
7 Motion to Dismiss the cause of action here. I'm going to
8 dismiss with prejudice, because, as I've said, I don't see
9 anything at all under these circumstances that would be a
10 well-pleaded cause of action.
11 My dismissal with prejudice today doesn't require
12 any written order. Now if you think, Mr. Osterbur, that I
13 have made an error in my ruling today, you'd have to ask
14 that this be reconsidered. You have to do that in writing.
15 Or you have to file a notice of appeal, and if you want to
16 do either of those, that has to happen within 30 days of
17 today's date. After 30 days from today's date, any
18 opportunity to appeal my ruling, or any opportunity to ask
19 me to reconsider it, would be lost. So if you think
20 there's something you want to appeal here, or if you think
21 that there is something that I have missed and wanted me to
22 reconsider, you have to take the required steps within 30
23 days of today's date, or your right to do anything else
24 with respect to this would be lost. Do you have any
1 questions about that, sir?
2 MR. OSTERBUR: No, I don't.
3 THE COURT: Okay, thank you, we'll be in recess.
4 WHEREUPON THESE WERE ALL THE PROCEEDINGS HAD IN THIS CAUSE
5 ON THIS DATE AS HEREIN CONTAINED .
6 STATE OF ILLINOIS )
7 COUNTY OF CHAMPAIGN)
SS
8 OFFICIAL COURT REPORTER'S CERTIFICATE
9 I, Nancy Sivertsen, CSR-CM, Official Court Reporter
10 in and for the Sixth Judicial Circuit of Illinois, and the
11 official court reporter who reported the proceedings had in
12 the aforesaid cause on the aforesaid date, do hereby
13 certify that the foregoing Transcript of Proceedings is a
14 true, complete, and correct transcript of all the
15 proceedings had in the aforesaid cause on the aforesaid
16 date as herein contained.
17 Dated this 28th day of September, 1993.
THIS MATERIAL REGARDING THIS CASE 92-C-1222 HAS BEEN SCANNED FROM THE ORIGINAL PRINTED TRANSCRIPT, AND THEN EDITED FOR SCANNING ERRORS, James F. Osterbur NO CHANGES WERE MADE.