Gill v. Foster

• Decision Date: 23 July 1992
• Docket Number: No. 4-91-0603,4-91-0603
• Citation: 597 N.E.2d 776,232 Ill.App.3d 768
• Parties: , 173 Ill.Dec. 802 Enos GILL, Plaintiff-Appellant, v. James T. FOSTER, M.D., Calixto F. Aquino, M.D., and St. John's Hospital Sisters of the Third Order of St. Francis, a Corporation, Defendants-Appellees (Richard McCormick, M.D., Raymond L. Farrell, and Gastrointestinal Associates, S.C., Defendants).
• Court: United States Appellate Court of Illinois

Page 776

597 N.E.2d 776 232 Ill.App.3d 768, 173 Ill.Dec. 802 Enos GILL, Plaintiff-Appellant,
v.
James T. FOSTER, M.D., Calixto F. Aquino, M.D., and St.
John's Hospital Sisters of the Third Order of St. Francis, a
Corporation, Defendants-Appellees (Richard McCormick, M.D.,
Raymond L. Farrell, and Gastrointestinal Associates, S.C.,
Defendants). No. 4-91-0603. Appellate Court of Illinois,
Fourth District. July 23, 1992.
Rehearing Denied Aug. 26, 1992.

Page 778

[232 Ill.App.3d 770] [173 Ill.Dec. 804] C. Steve Ferguson, Heller, Holmes, Hefner & Eberspacher, Ltd., Mattoon, for plaintiff-appellant.

[232 Ill.App.3d 771] Nancy E. Martin, Richard J. Wilderson, Graham & Graham, Springfield, for St. John's Hosp.

Karen L. Kendall, Heyl, Royster, Voelker & Allen, Peoria, Daniel R. Simmons, Heyl, Royster, Voelker & Allen, Springfield, for C.F. Aquino, M.D.

Randall A. Mead, Drake, Narup & Mead, P.C., Springfield, for James T. Foster, M.D.

Justice McCULLOUGH delivered the opinion of the court:

In the circuit court of Sangamon County, plaintiff Enos Gill sued defendants James T. Foster, M.D., Calixto F. Aquino, M.D., and St. John's Hospital of the Hospital Sisters of the Third Order of St. Francis for medical malpractice. Plaintiff's first-amended complaint added defendants Dr. Richard McCormick, Dr. Raymond L. Farrell, and Gastrointestinal Associates, S.C. On April 24, 1990, a settlement was reached between plaintiff and these additional defendants. The cause was continued for written stipulation and judgment order. On August 15, 1990, the written stipulations were submitted and orders of dismissal were entered as to defendants McCormick, Farrell, and Gastrointestinal Associates, who are not parties to this appeal. As to the remaining parties, summary judgment was granted in favor of St. John's Hospital, and a verdict was directed in favor of Foster at the close of plaintiff's case. In returning a verdict in favor of plaintiff against Aquino, the jury found plaintiff's total damages to be $55,000, but reduced that amount to $27,500 after also finding that 50% of the damages were attributable to plaintiff's negligence. Judgment was entered on the verdict, and plaintiff appeals.

Plaintiff raises the following issues: (1) whether the granting of summary judgment in favor of St. John's Hospital was error because a genuine issue of material fact exists with regard to the performance of the hospital's agents and employees; (2) whether it was error for the trial court to refuse to allow one of plaintiff's experts, a surgeon, to testify concerning the standard of care pertaining to defendant Foster, a radiologist; (3) whether the jury's finding that plaintiff was negligent was against the manifest weight of the evidence; (4) whether the trial court committed an abuse of discretion in refusing to admit plaintiff's exhibit Nos. 1 and 6, being medical bills from Memorial Medical Center and Dr. Rogers, where there was no evidence [232 Ill.App.3d 772] as to which items on the bills were necessitated by the alleged medical malpractice of defendant Aquino; (5) whether the trial court

Page 779

[173 Ill.Dec. 805] committed an abuse of discretion in refusing the plaintiff's offer of proof concerning what the testimony of a hospital administrator would be as to the average cost of a hiatal hernia repair; (6) whether the trial court committed an abuse of discretion in refusing to allow plaintiff's expert to testify as to the residual effects of the decortication of plaintiff's lung pursuant to Supreme Court Rule 220 (134 Ill.2d R. 220); (7) whether the damages assessed by the jury against defendant Aquino were inadequate and proved elements of damages were ignored; and (8) whether the trial court erred in allowing defense counsel to comment on plaintiff's burden of proof during opening argument. We affirm.

Plaintiff entered St. John's Hospital in Springfield under Farrell's care for evaluation and work-up for surgery to correct a chronic condition, reflux esophagitis. On December 19, 1984, McCormick performed the surgery, a Nissen fundoplication. Plaintiff was discharged on December 28, 1984. However, because he was experiencing chest pain, plaintiff proceeded directly to the office of his family physician, Aquino, in Litchfield. Aquino hospitalized plaintiff in St. Francis Hospital in Litchfield, where Foster served as radiologist. During his stay at St. Francis, plaintiff's condition worsened and plaintiff was transferred to Memorial Medical Center on January 5, 1985. Two days later, an operation was performed to return plaintiff's stomach to his abdominal cavity from his chest, to which it had herniated.

The first issue is whether the granting of summary judgment in favor of St. John's Hospital was error because a genuine issue of material fact existed with regard to the performance of the hospital's agents and employees. The trial court granted St. John's Hospital's motion for summary judgment on March 23, 1990. Plaintiff's amended complaint alleged, and the hospital's answer admitted, the following: (1) plaintiff was hospitalized at St. John's Hospital on December 16, 1984; (2) the hospital undertook to provide care to plaintiff during this hospitalization for surgery; (3) plaintiff was operated on at St. John's Hospital on December 19, 1984; and (4) following plaintiff's operation, St. John's Hospital undertook to provide plaintiff with post-surgical nursing care. The hospital denied plaintiff's allegations of the negligence of its agents, servants, and employees and that such alleged negligence was the proximate cause of plaintiff's injuries.

On appeal, plaintiff argues that the granting of summary judgment was error because a genuine issue of material fact existed as to whether nurses employed at St. John's deviated from a reasonable [232 Ill.App.3d 773] standard of care by failing to inform plaintiff's physicians that plaintiff was experiencing chest pain at the time of his discharge on December 28, 1984, and by discharging plaintiff while he had such chest pains. McCormick testified in his September 26, 1988, deposition that he first saw plaintiff when he was admitted to St. John's Hospital. McCormick was consulted by Farrell because of plaintiff's reflux esophagitis. "Reflux" refers to the backward flow of material from the stomach, and "esophagitis" refers to inflammation of the esophagus. The Nissen fundoplication is meant to prevent gastroesophageal reflux by rendering once again competent the lower esophageal sphincter mechanism. The surgery was performed December 19. On December 24, plaintiff experienced vomiting. The doctor's progress notes indicated that on December 26, plaintiff complained of chest pain. The doctor also recalled discussing this with plaintiff the next day and plaintiff indicated he thought he pulled a muscle in his chest while vomiting. The nurses' notes noted the complaint of chest pain and that the left lung was congested. The doctor palpated the chest and listened to plaintiff's chest to eliminate an inner-thoracic problem as an etiology of the pain. McCormick said he saw plaintiff again on the date he was discharged and did not feel plaintiff had any congestion. When asked about the nurses' note, McCormick said he disagreed with the conclusion stated therein. McCormick was not asked if he had any criticisms of the nurses at St. John's

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[173 Ill.Dec. 806] Hospital with regard to their care of plaintiff.

Plaintiff, in his depositions, described the pain as similar to what he felt when he had viral pneumonia. Plaintiff told McCormick about the pain and asked him about pneumonia being a complication of surgery. The nurses were aware of the pain on December 26. Plaintiff stated McCormick talked to him, but did not examine him on the morning plaintiff was discharged from St. John's Hospital. He did not recall McCormick ever examining him with a stethoscope. When plaintiff was being discharged on December 28, he complained to the nurse of chest pain. The nurse "checked" him and said something was wrong. According to plaintiff, she advised him to go to his family doctor. Plaintiff was discharged from St. John's Hospital at about 10 or 10:30 a.m. The Gills drove straight to Aquino's office. Aquino listened to plaintiff's chest and admitted him to the hospital in Litchfield. McCormick and Farrell had visited plaintiff on the day of his discharge from St. John's Hospital. Plaintiff told them of his problem, and according to plaintiff, McCormick explained it was normal to have pain after surgery.

[232 Ill.App.3d 774] Plaintiff's wife, Evelyn, was also present when plaintiff was discharged from St. John's Hospital. She, too, recalled that the nurse who removed the staples from the area of plaintiff's surgical incision listened to his chest. According to Mrs. Gill, the nurse told plaintiff to call his doctor when they got home, believing he may want to take an X ray. When she was asked why they did not ask the nurse to see a doctor at St. John's Hospital, Mrs. Gill replied: "Well, I asked her if they couldn't take an x-ray [sic ] here before we left and she said no, that he was a surgeon, so with that we were taken down to--."

Jerry Durham, R.N., Ph.D., is a faculty member at Illinois Wesleyan University. As plaintiff's expert witness, he was asked to review the case to ascertain whether there was a problem related to the nursing role in the discharge of the plaintiff. Based on his understanding of the case, Durham opined that the failure of the nurse to pursue the plaintiff's complaint at the time of discharge would deviate from the standard of care for nurses. Durham stated plaintiff should have been advised that if he had severe pain, he should seek medical attention. Durham admits that, according to plaintiff, the nurse advised him to see his physician and he did so. Durham noted that the medical records do not disclose the type of procedure employed by the nursing staff discharging the...