Crnkovich v. Almeida
| Decision Date | 18 May 1994 |
| Docket Number | No. 3-93-0896,3-93-0896 |
| Citation | 261 Ill.App.3d 997,634 N.E.2d 1130 |
| Parties | , 199 Ill.Dec. 776 Paul E. CRNKOVICH, Plaintiff-Appellee, v. Carlos ALMEIDA, M.D., Defendant-Appellee and (Graham Hospital Association, Defendant-Appellant, and Sharon Nuttall, Sharyl Ellis, and Ralph Froehling (Contemnor), Movants-Appellants). |
| Court | United States Appellate Court of Illinois |
Ralph Froehling (argued), Froehling, Taylor & Weber, Canton, for Graham Hosp. Ass'n, Sharon Nuttall, Sharyl Ellis, Ralph Froehling.
Edward R. Durree, Lindsay W. Wright, Kingery, Durree, Wakeman & Ryan, Peoria, for Paul E. Crnkovich.
Roger R. Clayton, Heyl, Royster, Voelker & Allen, Peoria, for Carlos Almeida.
The plaintiff, Paul Crnkovich, brought a medical malpractice action against the defendants, Carlos Almeida, M.D., and Graham Hospital Association. The plaintiff alleged that the defendants' failure to properly observe and treat an infection that occurred at the site of his IV led to thrombophlebitis of the left wrist, staphylococcal epidural abscess and bacteria, resulting in quadriparesis, and necessitating surgical treatment including a cervical laminectomy for abscess drainage, and subsequently the bilateral removal of his prosthetic knee joints. As part of the pretrial discovery in the case, plaintiff intended to depose the nurses that were involved in the plaintiff's treatment. During the depositions of two of these nurses, Sharyl Ellis and Sharon Nuttall, the plaintiff's counsel posed questions concerning the relevant standard of nursing care. On advice of counsel, the nurses declined to answer the questions.
The plaintiff filed a motion to compel answers to the questions relating to the standard of care. In the motion, the plaintiff pointed out that he was alleging acts of negligence on the part of Graham Hospital nurses, including the failure to properly follow, chart, and bring to the attention of the plaintiff's treating physicians the redness and edema that developed at the site of a heparin lock in plaintiff's left wrist on or about February 8, 1992, and the failure to report to plaintiff's treating physicians a temperature spike that occurred shortly after midnight on February 12, 1990, that plaintiff alleges was a sign or symptom of the infection. The specific questions that defendant Graham Hospital's attorney objected to concerned:
(1) a nurse's duty to notify a doctor about his patient's temperature spikes;
(2) the required charting when a patient's I.V. or heparin lock comes out or is removed by the patient;
(3) whether a temperature spike in a patient such as the plaintiff to a level of 100.9 degrees required doctor notification;
(4) the nurse's understanding of nursing protocol and her personal practices in the filling out of the nursing discharge summary and the timing of the filling out of the nursing discharge summary;
(5) whether a temperature spike to 100.9 in a patient with bilateral prosthetic knees would have been of special concern to the nurse, if she had been the attending nurse at the time.
Sharon Nuttall and Sharyl Ellis responded with a motion for protective order. They asserted in their motion that their own treatment of the plaintiff was not being criticized and that they should not have to answer opinion or standard of care questions as to matters taking place beyond their own treatment of the plaintiff. They argued that they should not be compelled to answer questions that essentially required them to review conduct of other Graham nurses.
The court made an oral ruling denying the nurses' motion for protective order and granting the plaintiff's motion to regulate discovery. The nurses moved for a reconsideration of the oral ruling. The court subsequently entered a written order to the same effect as the previous oral ruling. On the same day, the court entered another order finding Ralph Froehling, counsel for Graham Hospital and the two nurses, to be in contempt of court. In that order, the court stated that subsequent to the court's granting of the plaintiff's motion to regulate discovery, Froehling indicated that he would continue to advise Nuttall and Ellis to refuse to answer the questions. The court found Froehling in contempt of court and fined him $25. Nuttall, Ellis, and Graham Hospital filed a motion to vacate the court's judgment; this motion was stricken by the court at plaintiff's request. Nuttall, Ellis, and Froehling then filed the instant appeal.
The appellants argue that a nonparty treating nurse may not be compelled in a medical malpractice action to give expert opinions that are driven by the litigation rather than the treatment given by the deponent. The appellants point out that Ellis only cared for the plaintiff on February 4 and 5, and any possible alleged negligence occurred subsequent to February 8. Nuttall cared for the plaintiff from 7 a.m. to 3 p.m. on February 12, the day of his dismissal from the hospital. The temperature spike had occurred earlier on the 12th, shortly after midnight. The appellants argue that questions that do not directly involve these nurses' care of the plaintiff, and involve the standard of care, are requesting expert opinions. The appellants assert that the plaintiff is seeking to take their intellectual property without just compensation. Further, the appellants rely on Supreme Court Rule 220 (134 Ill.2d R. 220) and cases that have interpreted it. The appellants argue that those cases recognize a distinction between treatment-related opinions and litigation-related opinions, and that the opinions of the nurses in this case should be considered litigation-related.
Great latitude is allowed in the scope of discovery, and the concept of relevance is broader for discovery purposes than for purposes of the admission of evidence at trial, since it includes not only what is admissible at trial, but also that which leads to what is admissible. (Pemberton v. Tieman (1983), 117 Ill.App.3d 502, 72 Ill.Dec. 927, 453 N.E.2d 802.) Rules governing pretrial discovery vest wide discretion in the trial court, and the appellate court will not disturb its exercise thereof, unless the appellant makes a clear, affirmative showing that it has been abused. Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill.App.3d 636, 18 Ill.Dec. 489, 377 N.E.2d 1125.
In Fawcett v. Reinertsen (1989), 131 Ill.2d 380, 137 Ill.Dec. 613, 546 N.E.2d 558, our supreme court held that defendant physicians who had not been disclosed as expert witnesses could nevertheless be compelled to give testimony at a discovery deposition regarding the relevant standard of care. The court relied on its previous decision in Tzystuck v. Chicago Transit Authority (1988), 124 Ill.2d 226, 124 Ill.Dec. 544, 529 N.E.2d 525, in which it held that treating physicians who testify to a medical opinion at trial are not expert witnesses within the meaning of Rule 220(b)(1) and need not be disclosed as expert witnesses. The Tzystuck court noted that Rule 220(b)(1) required disclosure of an expert retained to render an opinion at trial, and that treating physicians are not retained to render an opinion at trial, but rather are consulted whether or not litigation is pending or contemplated. The Fawcett court applied the reasoning of Tzystuck to the case before it and concluded that defendant physicians, like treating physicians need not be disclosed:...
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...(2010) (nonparty chiropractor had standing to appeal contempt order for his refusal to appear at deposition); Crnkovich v. Almeida , 261 Ill. App. 3d 997, 999, 199 Ill.Dec. 776, 634 N.E.2d 1130 (1994) (nonparty nurses and nonparty counsel for defendant hospital appealed contempt order again......
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...trial, since it includes not only what is admissible at trial, but also that which leads to what is admissible." Crnkovich v. Almeida, 261 Ill.App.3d 997, 999 (1994). ¶ 116 A review of the record shows that CTIC substantively answered interrogatories propounded by the Findlays and substanti......
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