Bartimus v. Paxton Community Hosp.

• Decision Date: 28 December 1983
• Docket Number: Nos. 4-82-0402,4-82-0403,s. 4-82-0402
• Citation: 120 Ill.App.3d 1060,76 Ill.Dec. 418,458 N.E.2d 1072
• Parties: , 76 Ill.Dec. 418 Mariann BARTIMUS, Plaintiff-Appellee, v. PAXTON COMMUNITY HOSPITAL and Ramona Cabebe, Defendants-Appellants, and C.R. Olaf and Richard P. Foellner, d/b/a "Medical Arts Clinic", Defendants. Mariann BARTIMUS, Plaintiff-Appellee, v. PAXTON COMMUNITY HOSPITAL and Ramona Cabebe, Defendants, and C.R. Olaf and Richard P. Foellner, d/b/a "Medical Arts Clinic", Defendants- Appellants.
• Court: United States Appellate Court of Illinois

Page 1072

458 N.E.2d 1072

120 Ill.App.3d 1060, 76 Ill.Dec. 418

Mariann BARTIMUS, Plaintiff-Appellee, v. PAXTON COMMUNITY HOSPITAL and Ramona Cabebe, Defendants-Appellants, and C.R. Olaf and Richard P. Foellner, d/b/a "Medical Arts

Clinic", Defendants.

Mariann BARTIMUS, Plaintiff-Appellee, v. PAXTON COMMUNITY HOSPITAL and Ramona Cabebe, Defendants, and C.R. Olaf and Richard P. Foellner, d/b/a "Medical Arts

Clinic", Defendants- Appellants.

Nos. 4-82-0402, 4-82-0403.

Appellate Court of Illinois Fourth District.

Dec. 28, 1983.

Rehearing Denied Feb. 6, 1984.

Robert P. Moore, Robert A. Hoffman, Moore & Associates, Champaign, for defendants-appellants.

Mort A. Segall, Segall Law Offices, Charles K. Stowe, Champaign, for plaintiff-appellee.

MILLER, Justice:

Plaintiff brought an action in a four-count complaint to recover damages for injuries alleged to have been sustained by her as the result of negligent medical treatment by the defendants.

Count I of the complaint was directed against Paxton Community Hospital (PCH), alleging negligence in the operation of the hospital's emergency room. Count II was directed against Ramona Cabebe, a registered nurse employed by PCH on duty in the emergency room at the time plaintiff presented herself for treatment. Count III was directed against Drs. Olaf and Foellner, who are partners engaged in the practice of osteopathic medicine in Paxton. Plaintiff alleged that Dr. Olaf failed to render appropriate medical care and was negligent in diagnosing her condition. Count IV was directed against Jose Raquel, M.D., alleging that Raquel was negligent in subsequent surgeries performed by him on plaintiff. Dr. Raquel was granted summary judgment before trial and is not involved in this appeal.

Following trial, a jury returned a verdict against the defendants in the amount of $125,000. Judgment was entered on the verdict and defendants appeal from that judgment. For the reasons stated below, we reverse and remand for a new trial.

On February 27, 1978, Mariann Bartimus became ill with a bout of nausea and vomiting. Around 7 the following evening, she began having violent pain and had difficulty sitting up. Her husband drove her to PCH, arriving there about 8 p.m. Ramona Cabebe admitted plaintiff to the emergency room. Cabebe took plaintiff's medical history and blood pressure. Plaintiff contends that Cabebe asked plaintiff to give a urine sample, but that she was unable to comply. Cabebe denied asking for the sample. Cabebe then called Dr. Olaf, who had staff privileges at PCH and was "on call" as the emergency room physician that evening. Dr. Olaf was at home and did not come to the hospital. Instead, he instructed Cabebe to give plaintiff an injection for pain and to tell plaintiff to come to his office at 8 the next morning. Olaf testified that, based on the information given him by Cabebe, he believed plaintiff had a urinary tract infection.

After returning home, plaintiff was still in pain and had difficulty sleeping. When she went to Olaf's office the next morning, Olaf's nurse took a brief history. On examination, Olaf found that plaintiff was having acute abdominal pain and decided to have her admitted to the hospital for tests. After receiving the results of plaintiff's blood test, Olaf called Dr. Raquel who performed surgery on the plaintiff that morning.

Dr. Foellner testified that he assisted Raquel in performing surgery on plaintiff on the day she was admitted to the hospital. When plaintiff's abdomen was opened, Foellner saw that her appendix had ruptured and that infection had spread through her abdominal cavity and into her large and small intestines. The abdomen was irrigated, suction devices were used, and a tube was inserted to allow additional drainage. The incision was then closed around the tube which was removed several days later.

Plaintiff was discharged from the hospital on March 9, but returned on March 11 with a residual infection. Foellner and Olaf attempted to treat the infection with antibiotics but were unsuccessful. On March 13, Raquel performed a second surgery on plaintiff with Foellner and Olaf assisting. Two pelvic abscesses had developed. One was near plaintiff's umbilicus; the second was just above the bladder. The second surgery was necessary because all of the infection was not removed during the initial surgery. There is no evidence that Dr. Raquel failed to use due care during the first surgery; as stated earlier, Dr. Raquel was granted summary judgment on the count of plaintiff's complaint charging him with negligence.

Plaintiff was finally released from the hospital on March 25. Although she lost weight and was "weak" for at least a month following her discharge from the hospital, plaintiff stated that she did not have any permanent problems as a result of the surgery.

At trial, plaintiff contended that Ramona Cabebe, a nurse at PCH, failed to properly assess her condition when plaintiff presented herself at the emergency room on February 28, 1978, and that Cabebe failed to properly described plaintiff's condition on that evening to Dr. Olaf. She further contended that PCH failed to provide her with proper emergency room care and that Dr. Olaf failed to adhere to appropriate medical and emergency room standards in failing to see plaintiff and in failing to properly diagnose her condition when she appeared at the emergency room on the evening of February 28, 1978.

We are compelled to order a new trial in this case because of plaintiff's counsel's continued questioning of witnesses regarding alleged emergency room regulations contained in an emergency room manual, where that manual was never admitted into evidence by the trial court.

Plaintiff's counsel asked Marilyn Velasco, former director of nursing services at PCH, numerous questions which assumed the existence of a hospital regulation requiring every emergency room patient to be seen by a physician. Proof that such a regulation existed was never admitted into evidence in the trial court. Defendants' counsel made repeated objections to this line of questioning and those objections were, for the most part, sustained by the trial court. Despite the lack of proof that such a regulation existed at the time plaintiff came to PCH's emergency room, plaintiff's counsel continued to ask questions premised upon the existence of such a regulation.

Questions which are based upon or presume facts not in evidence are improper because the jury may assume that the presumed facts are true. Such questions may suggest to the jury that the witness adopts or admits the presumed facts. (See, e.g., Pepe v. Caputo (1951), 408 Ill. 321, 97 N.E.2d 260; Gabosch v. Tullman (1974), 21 Ill.App.3d 908, 316 N.E.2d 226.) In People v. Nuccio (1969), 43 Ill.2d 375, 253 N.E.2d 353, the supreme court reversed Nuccio's conviction for murder and remanded the case for a new trial where the prosecutor continually made "substantial insinuations" regarding threats made by Nuccio or other police officers during his cross-examination of Nuccio, but no evidence to support the insinuations was ever presented to the trial court.

The principle outlined in Nuccio applies equally as well in a civil case. The questions asked by plaintiff's counsel over defendants' objections assumed facts not admitted into evidence which were relevant to a central issue in the case. We consider those questions to be improper under the circumstances described.

Similarly, where an attorney persistently attempts to introduce testimony or evidence previously ruled inadmissible, error is committed. (Hires v. Price (1966), 75 Ill.App.2d 202, 220 N.E.2d 327; Owen v. Willett Truck Leasing Corp. (1965), 61 Ill.App.2d 395, 209 N.E.2d 868.) Hires involved an action arising out of an accident involving two tractor-trailers. Despite the trial court's ruling on the exclusion of evidence concerning alleged threats made to one of plaintiff's witnesses, plaintiff's counsel, by persistent attempts, was able to convey to the jury both the substance of the call and the identification of the caller. On appeal, this court found such conduct to be reversible error.

In the case before us, defendants were forced to object repeatedly to questions concerning the reasons for the termination of Nurse Cabebe's employment at PCH. Although the trial court had earlier in the proceedings ruled that the reasons for the termination of Nurse Cabebe's employment were inadmissible, plaintiff's counsel, through improper questioning, was nevertheless able to place the excluded evidence before the jury. As in Hires, we consider such conduct in the present case to be reversible error.

Since we are reversing the judgment and remanding the cause for a new trial because of the conduct of plaintiff's counsel at trial, it is not necessary that we address all of the alleged errors raised by defendants in their briefs. However, several key issues which will undoubtedly be present upon retrial require comment by this court.

In a medical malpractice action, plaintiff must show, through expert testimony, the standard of care applicable to the defendant physician. Furthermore, plaintiff must show, by competent and affirmative evidence, that the physician breached the applicable standard of care and that this breach resulted in injury to the plaintiff. (Borowski v. Von Solbrig (1975), 60 Ill.2d 418, 328 N.E.2d 301; Ybarra v. Cross (1974), 22 Ill.App.3d 638, 317 N.E.2d 621.) Defendants contend that Dr. Procell, plaintiff's expert witness, was not qualified to testify regarding the standard of care to which Olaf and Foellner are to be held because (1) Procell was not familiar with the standard of care applicable to physicians in the Paxton area or in other similar communities and (2) Procell was not an osteopath.

Dr. James Procell testified as plaintiff's medical expert. Procell is a medical doctor. He participated in a residency in family practice and was formerly employed as an...