Trial Journal of the Illinois Trial Lawyers Association, Vol. 25, Number 2, Summer 2023

Author:  Jennifer Pitzer

The Illinois Dead-Man’s Act (“the Act”) is a controversial vestige of the common law.[1] It states that no adverse party should be allowed to testify on his own behalf to conversations he had with a deceased individual or events that happened within the deceased’s presence.[2] The purpose of the Act is twofold: “to remove the temptation for the survivor of a given transaction to testify falsely and to equalize the positions of the parties in regards to the giving of testimony.”[3] In short, the purpose of the Act is to prevent parties from lying where the other party is no longer around to contradict them.

The Illinois Dead-Man’s Act provides in full:

In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:

(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.

(b) If the deposition of the deceased or person under legal disability is admitted in evidence on behalf of the representative, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted in evidence.

(c) Any testimony competent under Section 8-401 of this Act, is not barred by this Section.

(d) No person shall be barred from testifying as to any fact relating to the heirship of a decedent.

As used in this Section:

(a) “Person under legal disability” means any person who is adjudged by the court in the pending civil action to be unable to testify by reason of mental illness, an intellectual disability, or deterioration of mentality.

(b) “Representative” means an executor, administrator, heir or legatee of a deceased person and any guardian or trustee of any such heir or legatee, or a guardian or guardian ad litem for a person under legal disability.

(c) “Person directly interested in the action” or “interested person” does not include a person who is interested solely as executor, trustee or in any other fiduciary capacity, whether or not he or she receives or expects to receive compensation for acting in that capacity.

(d) This Section applies to proceedings filed on or after October 1, 1973.[4]

The Act’s application should be straightforward. If the deceased could have been a witness to a conversation or event, another interested party cannot offer testimony to the same. But if the deceased’s representative enters evidence of a conversation or event, then they lose the right to block additional evidence regarding that conversation or event from the adverse party.

By its terms, the Act only applies to parties or interested persons. “Interested persons” means those who would experience a financial gain or loss as a result of a judgment rendered in the action.[5] The bar has been held to extend to spouses of the named plaintiff, although not to children or heirs, whose interest in the outcome of the litigation remains contingent.[6] An agent or employee without an ownership interest in a corporate defendant is not an “interested party” for the purpose of the Act.[7] “Event” generally means “all of the steps or connected incidents from the first cause to the final result . . . includ[ing] both cause and effect,”[8] but typically excludes collateral matters that the deceased could not have refuted.[9] Additionally, although the statute speaks specifically to trial testimony, the Act has been held to apply in the summary judgment context as well.[10]

A plaintiff may wish to invoke the Act in the medical malpractice context when they are suing on behalf of a deceased patient. The doctor-patient relationship is already an unequal one, where the patient relies on the doctor’s education, training, and experience. A patient is further disadvantaged when criticizing a doctor due to the doctor’s greater perceived authority and his or her control of the medical records. Some of these inequities deepen upon the death of the patient who is no longer there to narrate their own experience of the disputed care. The Act may provide an avenue to limit this disadvantage. Unfortunately, the current state of the law has watered down the protection that should accrue to the patient.

Evidence in medical malpractice cases takes the form of medical records, testimony from treating physicians or medical providers, or expert testimony. The Act may bar the presentation of either records or testimony.

Entry of Medical Records Under the Act

Of course, the party representing the deceased always has the ability to move for the entry of medical records or any other piece of evidence in support of their case because the right to use or waive the Act accrues to the representative.[11] Therefore nothing in the Act prevents the representative of the deceased from presenting any evidence necessary, including medical records. The question becomes, whether the deceased’s representative can use the Act to keep certain medical records out of evidence at trial.

Courts to have considered the issue have found that medical records are not covered by the exception in paragraph (c), and thus the Act presumably bars their admission, so long as they do not fall within exception (a) through use by the representative. Paragraph (c) incorporates the standard in Section 8-401 of the Illinois Code of Procedure, which allows a party to admit into evidence “a book account or any other record or document” upon which “the claim or defense is founded.”[12] After considering this section, the court in Theofanis v. Sarrafi found that medical records are not the foundation of claims or defenses, but rather they can serve as evidence of claims or defenses.[13] Accordingly, medical records do not fall within exception (c), which was likely intended to reach cases where a contract, trust agreement, or account book served as the basis of the claim.[14] In reaching this decision, the court distinguished as dicta a comment in Herron v. Anderson, in which that court found that medical records fell under exception (c).[15]

Although the Theofanis court dismissed Herron’s dicta regarding the application of exception (c), the remainder of the Herron opinion introduces an important caveat on trying to pick and choose which parts of the medical records to introduce. In Herron, the plaintiff tried to selectively invoke the Act as to the medical records, which the appellate court found patently unfair. It upheld the trial court’s decision to deny plaintiff’s request to redact the portions of the medical records showing decedent’s subjective complaints.[16] Once the medical records were admitted, the rule of completeness required entry of the entire medical record.[17] As the case addressed an attempt to exclude portions of certain visits; it is not clear whether the “rule of completeness” argument would defeat an attempt to withhold certain dates or instances of treatment in their entirety.

Herron also analyzes whether the medical records are admissible generally under an exception to hearsay principles in lieu of determining whether they are excludable under the Act.[18] Although the hearsay analysis should not be thought of as interchangeable with an analysis under the Act, there does not appear to be a case that discusses the proper relationship of the hearsay analysis to the Act.

Exclusion of certain Testimony under the Act

The other big question is what kind of testimony can be excluded under the Act and under what circumstances. The appellate decision in Hoem v. Zia had one of the more cogent analyses of this issue when it was decided until the Illinois Supreme Court abrogated its reasoning.[19] There, the plaintiff alleged that the defendant doctors failed to diagnose and prevent the impending heart attack of her husband, which resulted in his death.[20] From the defense perspective, the defendant doctors’ treatment was reasonable because they were pulmonologists and decedent had had a normal EKG before seeking treatment with them that showed no signs of heart trouble.[21] The defendant doctors therefore undertook to evaluate and treat the decedent’s lung condition, not his heart.[22] The plaintiff’s theory of the case was that although a pulmonologist, defendant Zia should have recognized that the decedent was describing angina when he took a history from him on October 31, 1988.[23] The notes of that visit were critically important to the plaintiff’s case.[24] The plaintiff submitted the notes and had her expert testify that the notes documented signs and symptoms of angina. Over the plaintiff’s objection, defendant Zia offered testimony regarding his recollection of the October 31st visit and told the jury that the decedent had more accurately described musculoskeletal pain in his conversation with defendant Zia, not angina.[25]

The trial court permitted this testimony, but the appellate court found that it violated the Act.[26] First, the appellate court noted that defendant Zia’s testimony “obviously” fell within the first paragraph of the act barring testimony regarding conversations.[27] It subsequently found that the exception discussed in 5/8-201(a) had not been triggered through the introduction of medical records or plaintiff’s expert’s testimony.[28] First, it found that a medical record is an exhibit, not “testimony to a conversation.”[29] Any evidence of conversations does not waive the act; it must be testimony about conversations.[30] The entry of a medical record documenting a conversation did not in of itself waive the Act. Second, the appellate court rejected the contention that expert testimony regarding what the medical record meant to plaintiff’s expert waived the Act. [31] The appellate court found that the statute’s reference to “testify to a conversation” means testimony about the actual things said during the conversation.[32] Therefore, an expert’s testimony about what medical notation means is not testimony about the actual things said during the consultation with the defendant doctor, which presumably an expert would have no knowledge regarding.[33] The court found it permissible for an expert to “explain and interpret from a medical standpoint” what a medical record means.[34] Testimony that might waive the act would include testimony wherein a witness claimed to know what the decedent actually said during a conversation or testimony that contradicts the medical record.[35] When an interested party attempts to supplement the medical record with testimony regarding what the deceased actually said, that triggers the exception.[36] The appellate court found the Act should work to keep the parties on equal ground; both parties may offer interpretations of the medical record, but it would be prejudicial to the decedent if the adverse party could supplement the medical records with his recollection of conversations that the decedent was not there to refute.[37]

However, the Fourth District’s decision did not stand for long. In a decision that otherwise affirmed the ruling of the appellate court, the Illinois Supreme Court specifically found that the plaintiff had waived the Dead Man’s Act under exception (a) by introducing expert testimony about the office notes; accordingly, the defendant doctor was entitled to offer his testimony about his conversation with the deceased.[38] The court found that the plaintiff’s expert did more than either interpret the note or translate it for the benefit of the jury—he “put his own gloss” on the note.[39] The gist of the expert’s testimony insinuated that the decedent visited defendant Zia principally to evaluate his heart symptoms.[40] The court found that it would be unfair, and not in keeping with the principle behind the Dead Man’s Act, if defendant Zia were not permitted to counter the expert’s assertion that decedent came to see him for heart symptoms with his own testimony about his conversation with the deceased.[41] Hoem is the last Illinois Supreme Court case discussing the Act in a medical malpractice context.

The supreme court’s Hoem decision declined to discuss the nuts and bolts of the appellate decision and its emphasis on “testimony” versus “any evidence” or the meaning of the phrase “testify to a conversation.” Hoem stands for the proposition that an expert’s testimony about what medical records mean can waive the Act to testimony about the conversation that served as the basis for those records.[42] This is a clear expansion beyond the plain language of the Act. The 1992 appellate decision’s interpretation of terms like “conversation” and “testimony” relied on those terms’ plain and commonly understood meanings. In contrast, the 1994 Hoem decision goes beyond the terms used in the statute. Although the discussion focused on the expert’s testimony, a brief line in the decision extended the reasoning to the use of the medical records as well. Subsequent decisions have continued to expand the reach of the exception in section (a).

In Beard v. Barron, a 2008 First District decision, the court found that a question on direct examination in the plaintiff’s case in chief about why a defendant doctor did not order a CT scan to evaluate the decedent’s headaches waived the Dead Man’s Act because the defendant doctor’s answer relied on prior conversations with the deceased.[43] Specifically, the court found “it would be fundamentally unfair to allow the plaintiff to specifically ask Dr. Barron why he did not order a CT scan on July 21, the question suggesting that [plaintiff] presented with symptoms that were new and concerning and then to use the Dead Man’s Act to bar his response why he did not feel the symptoms to be new or concerning.”[44] The Beard decision does not follow the purpose of the Dead Man’s Act because it allowed the adverse party to testify to a conversation merely to counter an inference raised by a question—a far cry from the statute’s language creating an exception when testimony regarding conversations or events with the deceased is introduced.

Another unpublished decision interpreting Hoem found that the plaintiff had waived the Act under exception (a) when she sought to keep out the defendant nurse’s testimony about conversations with the deceased after evoking testimony from both fact and expert witnesses that the failure to document certain conversations in the medical records meant that those conversations did not happen.[45] The witnesses did not “put their own gloss” on the records, as in Hoem, but rather offered testimony regarding medical conventions around documentation. This was sufficient to waive the act because it allowed the plaintiff to present a “version of events” that fairness dictated the defendant be allowed to counter.[46]

One possible explanation for why courts regularly admit evidence about matters that go far beyond the “conversations” referenced in the Act is that the courts are actually focused on the “events” at issue—presumably the course of medical treatment raised by the lawsuit. The 1992 Hoem appellate decision actually considered an argument of this nature, and rejected it on the narrower factual ground that the disputed testimony in that case clearly referenced a conversation and not an event so that the definition of event was not relevant.[47] Likewise, Vizirzadeh rejected a similar argument on the same ground.[48] None of the cases pushing a broad interpretation of the exclusions, including the 1994 Supreme Court decision, substantively discusses the term “event.”

It is also possible that the decisions broadly finding waiver of the Act are focused on the question of whether the parties have equal standing in the presentation of evidence.  That would explain why courts are more likely to find the Act waived in circumstances where the plaintiff has succeeded in presenting their theory of the case—they believe that “equalization” referred to in the case law requires defendant to get the same opportunity.

There are some options available to distinguish and counter Beard. Another court may find decisions like Beard inconsistent with the statute altogether based on the statute’s language and purpose. There are pre-Hoem decisions that could lend support to that kind of argument. A decision out of the First District on similar facts to Beard applied the Act to find the trial court should have excluded the defendant doctor’s testimony regarding a conversation about the mild nature of the deceased’s symptoms, even after the plaintiff put the correct treatment of those symptoms at issue, on the narrow ground that plaintiff had introduced no evidence about the conversation at issue.[49] The fact that the conversation was supportive of the defense did not waive the Act and no plaintiff’s expert placed a gloss on the conversation so as to waive the defense as in Hoem.[50] As this case does not discuss the same issue in Hoem it is unlikely that Hoem overruled it.

Theofanis, another First District opinion discussed briefly above for its comments on medical records, is also a more beneficial opinion for those seeking to make use of the Act’s protections. After the appellate court rejected the defense argument regarding exception (c) with regards to the medical records, it also considered whether the plaintiff had waived the Act under exception (a).[51] At issue was the defendant doctor’s testimony over plaintiff’s objection regarding notes and a conversation he had with decedent on May 28, 1996.[52] The court rejected defendant’s argument that plaintiffs had waived the Act through their direct examination of the defendant doctor in their case in chief because the examination was confined to the events that happened June 3, 1996 or later and scrupulously avoided mention of the May 28th conversation.[53] The trial court accordingly committed error when it allowed Dr. Sarrafi to testify regarding the May 28th conversation and introduce his notes because such testimony violated the Act.[54] After the introduction of defendant’s testimony, plaintiff did not retroactively waive the Act when presenting additional testimony to rebut the implications raised by Dr. Sarrafi’s testimony.[55]

Practical usage

 As an initial matter, although most of the case law deals with trial settings, remember when choosing, filing, and working cases that your case may be vulnerable to a summary judgment motion from the defense if the only evidence of a particular element of your claim could be barred by the Act. Most of the cases discussed above deal with a deceased plaintiff, but it is certainly conceivable that the Act could be used to bar testimony of visits as well as medical records made of those visits if the defendant doctor dies prior to or during suit.

Returning to the more common scenario of deceased plaintiff versus defendant doctor, the Act does present an option to try to exclude certain evidence at trial. In general, there is still widespread discomfort with the Act itself and the perception that it violates “fundamental fairness” by barring evidence that would otherwise be admissible. The best chance to use the Act occurs when the facts suggest that fairness concerns require the Act’s use. For example, in Theofanis, there were credibility problems with the evidence the appellate court ultimately found excludable under the Act—the problematic testimony addressed a handwritten notation in the margin of the medical record that was completely inconsistent with the rest of the record, raising the inference that it had been completed after the patient had died.[56] Courts are more likely to apply the Act when they encounter the exact situation the Act is meant to counter—a defendant seemingly trying to fabricate evidence that only the decedent could have disputed.

Barring cases where fair play dictates the Act’s application, the next likely scenario where the Act may be applied is in cases where its application is precise. Again, in Theofanis, the plaintiff focused the presentation of her case on a time period that occurred after the note in question was written, temporally sealing off the evidence she sought to exclude from her case in chief.[57] Identifying the specific conversations or events by date can make it easier for a court to apply the Act, particularly where the time line of events also raises an inference that the disputed conversation lacks relevance.

On the other hand, courts are very reluctant to apply the Act to exclude evidence of a negative or testimony regarding what did or did not happen when the happening is in dispute. It is difficult to get a court to apply the Act when the way in which the “conversation” or “event” is ill-defined. This may have been the problem in Beard, where the plaintiff sought to exclude testimony that the deceased had discussed her headaches and nosebleeds with the defendant doctor generally over a period of 10 years. Unlike Theofanis, it does not appear from the decision that the plaintiff was able to identify those conversations specifically in time. It is also difficult to raise the Act to bar testimony that constitutes the defendant doctor’s entire defense to the plaintiff’s case. Courts prefer to raise the specter of fairness to allow the defendant doctor to “explain.” The Illinois Supreme Court has not weighed in on the line of cases that allow a doctor to “explain what happened,” like Beard. On the surface, these types of cases appear to go far beyond the holding of Hoem that a doctor may counter what an expert believes the doctor’s medical records reflect.

Overall, the decision on whether to attempt to exclude certain evidence via the Act is a strategic call. Given the difficulties in the application, it may be better to focus on impeachment in cases where a doctor conveniently remembers a conversation justifying his actions after the death of his patient. Still, the Act can be a useful tool in excluding certain types of evidence or applying pressure to the opposing side pre-trial.

Author : Jennifer C pitzer 

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[1] See, e.g.. Adrian Whitehead, New Life to the Dead Man’s Act in Illinois, 5 Loy. U. Chi. L. J. 428, 433-34, 438-441 (1974).

[2] 735 ILCS 5/8-201.

[3] Hoem v. Zia, 159 Ill.2d 193, 201-202 (1994) (citing M. Graham; Cleary & Graham’s Handbook of Illinois Evidence § 606.1 at 314-15 (5th Ed. 1990)).

[4] 735 ILCS 5/8-201.

[5] Bernardi v. Chicago Steel Container Corp., 187 Ill.App.3d 1010, 1017-18 (1st Dist. 1989).

[6] Id. at 1017-19.

[7] General Auto Service Station, LLC v. Garrett, 50 N.E.3d 1144, 1148-49 (1st Dist. 2016).

[8] Zorn v. Zorn, 126 Ill.App.3d 258, 262 (4th Dist. 1984) (citing Rinehart v. F.M. Stamper Co., 227 Mo.App. 653, 657 (1931)).

[9] See Gunn v. Sobucki, 216 Ill.2d 602, 609 (2005) (“The Act only bars evidence which the decedent could have refuted.”).

[10] Groce v. South Chicago Community Hospital, 282 Ill.App.3d 1004, 1010 (1st Dist.1996).

[11] Balma v. Henry, 404 Ill.App.3d 233, 239 (2d Dist. 2010).

[12] 735 ILCS 5/8-401.

[13] 339 Ill.App.3d 460, 477-78 (1st Dist. 2003).

[14] Id. at 477.

[15] Id.

[16] Herron v. Anderson, 254 Ill.App.3d 365, 374-76 (1st Dist. 1993).

[17] Id. at 375 (citing Lawson v. G.D. Searle & Co., 64 Ill.2d 543, 556 (1976)).

[18] Id. at 376.

[19] Hoem v. Zia, 239 Ill.App.3d 601 (Ill. App. 4th Dist. 1992).

[20] Id. at 605.

[21] Id. at 606-07.

[22] Id.

[23] Id. at 609.

[24] Id.

[25] Id. at 610.

[26] Id. at 611.

[27] Id.

[28] Id. at 613-14.

[29] Id. at 612-613.

[30] Id.

[31] Id. at 613.

[32] Id.

[33] Id.

[34] Id. at 614 (emphasis in original).

[35] Id.

[36] Id. (emphasis in the original).

[37] Id.

[38] Hoem v. Zia, 159 Ill.2d 193, 201 (1994).

[39] Id.

[40] Id.

[41] Id. at 202.

[42] See, e.g., Agin v. Schonberg, 397 Ill.App.3d 127, 135 (1st Dist. 2009); Malanowski v. Jabamoni, 332 Ill.App.3d 8, 12 (1st Dist. 2002) (finding plaintiff waived an objection based on the Act to the defendant doctor’s testimony because he elicited testimony from his expert on the meaning of the Defendant doctor’s notes).

[43] 379 Ill.App.3d 1, 13 (1st Dist. 2008).

[44] Id.

[45] Flanagan v. Boehning, 2013 IL App (5th) 120344-U ⁋ 16 (5th Dist. 2013).

[46] Id.

[47] Hoem, 239 Ill.App.3d at 612.

[48] Vazirzadeh, 157 Ill.App. at 645.

[49] Vazirzadeh v. Kaminski, 157 Ill.App.3d 638, 643-44 (1st Dist. 1987).

[50] Id. at 643.

[51] Theofanis, 339 Ill.App.3d at 478.

[52] Id. at 475.

[53] Id. at 478.

[54] Id.

[55] Id.

[56] Id. at 467.

[57] Id. at 478.