Beaman v. Swedish American Hosp. Ass'n of Rockford

• Decision Date: 01 February 1989
• Docket Number: No. 2-88-0205,2-88-0205
• Citation: Beaman v. Swedish American Hosp. Ass'n of Rockford, 534 N.E.2d 522, 179 Ill.App.3d 532, 128 Ill.Dec. 340 (Ill. App. 1989)
• Parties: , 128 Ill.Dec. 340 Glenn H. BEAMAN, et al., v. SWEDISH AMERICAN HOSPITAL ASSOCIATION OF ROCKFORD, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 522

534 N.E.2d 522

179 Ill.App.3d 532, 128 Ill.Dec. 340

Glenn H. BEAMAN, et al., v.SWEDISH AMERICAN HOSPITAL ASSOCIATION OF ROCKFORD, et al Defendants-Appellees.

No. 2-88-0205.

Appellate Court of Illinois Second District.

Feb. 1, 1989.

John R. Truitt(argued), William T. Cacciatore(argued), Bruscato & Cacciatore, Rockford, for Glenn H. Beaman and Donna J. Beaman.

Diane I. Jennings, Lord, Bissell & Brook, Jeffry S. Spears(argued), Lord, Bissell & Brook, Hugh C. Griffin, Lord, Bissell & Brook, Rockford, for Swedish American Hosp. and Warren L. Lowry, M.D.

Gregory P. Guth(argued), Holmstrom & Green, Rockford, for Warren L. Lowry, M.D.

Justice McLARENdelivered the opinion of the court:

Plaintiff, Glenn H. Beaman, sought damages for injuries allegedly sustained as the result of the medical malpractice of defendants, Dr. Rudolph Vedo, Dr. Warren L. Lowry, and Swedish American Hospital Association of Rockford.Plaintiff's wife, Donna J. Beaman, filed a loss of consortium claim.The trial court granted Dr. Vedo's motion for summary judgment based on the ground that there was no expert testimony to show a deviation from the required standard of care of an anesthesiologist.This ruling was not appealed.The jury returned a verdict in favor of Dr. Lowry and the hospital on all remaining counts.On appeal, plaintiffs contend that the trial judge erred by refusing to allow plaintiffs' treating physicians to give expert testimony as to a causal connection between the spinal anesthesia and plaintiff's ill health.

On March 19, 1979, plaintiff was admitted to Swedish American Hospital for urinary retention.A history was taken, at which time plaintiff stated that he had flu-like symptoms for the past nine days and had experienced tingling and pain in his thighs and lower back.A catheter was inserted, and plaintiff was scheduled to undergo prostate surgery on March 22, 1979.Dr. Lowry performed the surgery.Plaintiff testified that on the day following surgery he experienced a numbness in his feet and could not properly walk.This condition persisted when plaintiff left the hospital, and he was later examined by several other physicians as his condition became worse.His condition was eventually diagnosed as being myelopathy (a dysfunction of the spinal cord), although the cause was undetermined.

On March 17, 1983, plaintiffs filed a complaint alleging medical malpractice.The trial court, pursuant to Supreme Court Rule 220(107 Ill.2d R. 220), set a time limit for the parties to disclose their expert witnesses.Plaintiffs identified Dr. Murray Rosenberg, an anesthesiologist, as their only trial expert.Dr. Rosenberg testified at the discovery deposition that plaintiff's condition was caused by an improper positioning of the plaintiff on the operating table.Approximately 11 months later, plaintiffs again identified Dr. Rosenberg as their only trial expert and also listed plaintiff's treating physicians as those who would testify to plaintiff's care and treatment based on their examinations and findings.During his second deposition, Dr. Rosenberg reiterated his earlier opinions and added that plaintiff's condition may have been caused by a viral infection such that the surgery should not have been performed at that time.Plaintiffs also disclosed the two treating physicians (Drs. Copeland and Campbell) who would testify.

One month before the trial date, and after the discovery cutoff date, plaintiffs filed additional Rule 220 answers which stated that Dr. Rosenberg would testify that plaintiff's condition may have been caused by the spinal anesthesia.Plaintiffs also stated that Dr. Campbell would testify as to the possible link between the anesthesia and plaintiff's condition.Both defendants filed a motion to bar new opinions of plaintiffs' experts, and the motion was granted.The trial court noted that plaintiffs had not previously disclosed any expert testimony concerning this liability theory concerning spinal anesthesia, and to allow such a theory at this late date would "severely prejudice the defendant."

The trial judge also heard motions in limine and determined that he would not allow any new liability theories to be presented at trial.The court also refused to allow any hypothetical questions directed to the treating physicians without first obtaining court authorization.Plaintiffs filed a motion to reconsider the trial court's ruling, arguing that treating physicians were not experts under Rule 220, and thus the disclosure requirement does not apply.This motion was denied.On October 28, 1987, the jury returned a verdict in favor of both defendants.Plaintiffs' motion for a new trial was denied.

On appeal, plaintiffs contend that the trial court committed reversible error by refusing to allow plaintiffs' treating physicians to testify as experts in a medical malpractice action.Plaintiffs make this claim by stating that the treating physicians did not come within the purview of Rule 220, and thus there was no need to comply with Rule 220.That rule provides:

"In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party * * *."(107 Ill.2d R. 220(b)(1).)

The rule defines an expert witness as:

"[A] person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial."107 Ill.2d R. 220(a)(1).

Plaintiffs primarily rely on Diminskis v. Chicago Transit Authority(1987), 155 Ill.App.3d 585, 108 Ill.Dec. 54, 508 N.E.2d 215, for the proposition that treating physicians are not considered to be experts within the meaning of Rule 220.The Illinois Supreme Court affirmed the Diminskis decision in Tzystuck v. Chicago Transit Authority(1988), 124 Ill.2d 226, 235, 124 Ill.Dec. 544, 529 N.E.2d 525.The supreme court noted that there is an inherent difference between a treating physician and a medical expert.A treating physician is consulted to specifically treat a patient's mental or physical problem.A medical expert is retained simply to render testimony at trial.(Tzystuck, 124 Ill.2d at 234, 124 Ill.Dec. 544, 529 N.E.2d 525.)The court reasoned that a treating physician should be treated similar to an occurrence witness because the treating physician witnesses the events that form a part of the subject matter of the litigation.

Plaintiffs correctly state that both Dr. Campbell and Dr. Copeland were consulted for the purpose of rendering medical treatment.They were not retained to provide expert testimony at trial.This is especially true considering that both were consulted long before the malpractice complaint was filed.Thus, under the Tzystuck and Diminskis rules, there was no need for plaintiffs to comply with Rule 220 as to these treating physicians.

Neither defendant has asserted that treating physicians fall within the purview of Rule 220 when they testify as to matters from their own personal knowledge.Both defendants objected to the possibility that plaintiffs would use the treating physicians as experts to circumvent Rule 220 requirements.The court ruled that there could not be any hypothetical questions asked of the treating physicians without prior approval of the court.The judge stated that this would be done on a question-by-question basis.

In a medical malpractice action, the plaintiff must prove (1) the proper standard of care against which the defendant's conduct is measured; (2) a negligent failure to comply with the applicable standard of care; and (3) a resulting injury proximately caused by this breach of the applicable standard of care.(Addison v. Whittenberg(1988), 124 Ill.2d 287, 297, 124 Ill.Dec. 571, 529 N.E.2d 552.)In general, the plaintiff must present expert opinion to establish each of these elements.(Addison, 124 Ill.2d at 297, 124 Ill.Dec. 571, 529 N.E.2d 552.)Plaintiffs claim that the trial court did not allow them to meet their burden of proof in this case because they were not allowed to elicit expert opinions from the two treating physicians.As a result, plaintiffs state that they were severely prejudiced and deprived of a fair trial.Plaintiffs primarily rely upon Corrales v. American Cab Co.(1988), 170 Ill.App.3d 907, 120 Ill.Dec. 741, 524 N.E.2d 923, for the proposition that a trial court's erroneous decision to bar treating physicians' testimony will require a new trial.In Corrales, defendant attempted...