Hoem v. Zia

• Decision Date: 24 March 1994
• Docket Number: 75159 and 75168,Nos. 75100,s. 75100
• Citation: 201 Ill.Dec. 47,636 N.E.2d 479,159 Ill.2d 193
• Parties: , 201 Ill.Dec. 47 Susan HOEM, Appellee and Cross-Appellant, v. Michael J. ZIA, M.D., et al., Appellants and Cross-Appellees.
• Court: Illinois Supreme Court

Page 479

636 N.E.2d 479

159 Ill.2d 193, 201 Ill.Dec. 47

Susan HOEM, Appellee and Cross-Appellant, v. Michael J. ZIA, M.D., et al., Appellants and Cross-Appellees.

Nos. 75100, 75159 and 75168.

Supreme Court of Illinois.

March 24, 1994.

Rehearing Denied May 27, 1994.

Richard F. Record, Jr., Craig & Craig, Mattoon, for appellant and cross-appellee J. Steven Arnold.

Kehart, Shafter, Hughes & Webber, P.C., Decatur (Michael J. Kehart and Albert G. Webber, of counsel), for appellants and cross-appellees Michael J. Zia and Central Illinois Lung Associates, S.C.

John E. Fick, Samuels, Miller, Schroeder, Jackson & Sly, Decatur, for appellant and cross-appellee Decatur Memorial Hosp.

Alexandra de Saint Phalle, Londrigan, Potter & Randle, P.C., Springfield, for appellee and cross-appellant.

Justice HEIPLE delivered the opinion of the court:

In March 1990, plaintiff, Susan Hoem, filed this medical malpractice action against defendants, Dr. Michael Zia, Dr. J. Steven Arnold, Decatur Memorial Hospital, and Central Illinois Lung Internists Associates. In her complaint, plaintiff alleged that defendants failed to diagnose and prevent the impending heart attack of her husband, Richard Hoem, that resulted in his death in November 1988. After a trial, the jury rendered a verdict for defendants.

On appeal, plaintiff argued that the trial court (1) erred by admitting testimony barred by the Dead-Man's Act (Ill.Rev.Stat.1991, ch. 110, par. 8-201); (2) improperly limited plaintiff's rebuttal witness' testimony; (3) failed to instruct the jury that the negligence of a subsequent party does not exonerate a prior act of negligence; (4) should have granted summary judgment for plaintiff on the issue of whether Dr. Arnold was an agent of the hospital; (5) erred in several evidentiary rulings; and (6) erroneously denied plaintiff's motion for judgment notwithstanding the verdict. The appellate court reversed and remanded for a new trial. 239 Ill.App.3d 601, 179 Ill.Dec. 986, 606 N.E.2d 818.

We allowed defendants' petition for leave to appeal (134 Ill.2d R. 315), and now affirm the judgment of the appellate court, although for reasons different from those stated by the appellate court.

I. BACKGROUND

Richard Hoem underwent a physical examination in March 1988. An electrocardiogram test (EKG) done as a part of this examination revealed no signs of heart problems.

During the summer of that year, Hoem began to develop problems with his endurance. Thinking that his problems might be related to a previous lung condition, Hoem consulted Dr. Zia, a specialist in pulmonology. Dr. Zia had last treated Hoem in 1984 when Hoem failed a work-related lung test.

On October 31, 1988, Dr. Zia administered a series of tests designed to detect lung problems. He also scheduled Hoem to undergo a cardiopulmonary stress test on November 11, 1988, to measure lung capacity and fitness.

Because Dr. Zia was on vacation on November 11, 1988, his partner, Dr. Arnold, administered the test. During the test, Hoem exercised on a stationary cycle while an EKG monitored his heart rate as he breathed into a tube that monitored his lung capacity, strength, and endurance. The test also monitored blood pressure.

On November 21, Dr. Arnold notified Hoem that he had found a "blockage" on the test and had scheduled Hoem to meet with a cardiologist, Dr. Krishan Patel, a week later, on November 29, 1988. The day prior to that meeting, however, Hoem collapsed after walking up a flight of stairs and later died.

Plaintiff then brought suit against defendants, Dr. Michael Zia, Dr. J. Steven Arnold, Decatur Memorial Hospital, and Central Illinois Lung Internists Associates. Plaintiff's principal allegation of negligence was that Drs. Zia and Arnold had failed to recognize, and treat on an emergency basis, Hoem's cardiac condition.

During plaintiff's case in chief, she presented the expert testimony of Dr. Dan Fintel, a cardiologist. Dr. Fintel testified that the EKG and medical charts showed clear signs of a prior heart attack and clear warnings of an impending heart attack. Dr. Fintel testified that when Hoem visited Dr. Zia on October 31, 1988, Hoem was describing angina to Dr. Zia, which is an undisputed symptom of heart disease. He testified that based upon the information that Dr. Zia recorded in his office notes, Dr. Zia should have recognized Hoem's complaints as angina, and hence initiated a program of cardiac diagnosis and treatment.

Defendants responded by calling themselves and three other doctors as medical experts: Dr. Patel (the cardiologist whom Hoem was scheduled to see), Dr. William Buckingham (a board-certified internist and pulmonologist), and Dr. Patrick Sullivan (a board-certified internist).

Over plaintiff's Dead-Man's Act objection, Dr. Zia testified concerning his examination of Hoem on October 31, 1988. Dr. Zia stated that the pain which Hoem described to him was not consistent with angina, but rather was consistent with musculoskeletal pain. Therefore, Dr. Zia did not suspect Hoem was suffering from heart disease, and did not initiate treatment for it.

Among other things, Dr. Patel testified that the medical results from Hoem's test did not present an urgent medical condition. He added that, if he had read the charts and results from Hoem's test immediately after Hoem took the test, he would not have done anything differently than Dr. Arnold had done.

Dr. Buckingham and both defendants testified that although Dr. Fintel may know the standard of care for a cardiologist, he did not testify to the applicable standard of care for pulmonologists. All three testified that although cardiologists might notice subtle, but life-threatening, heart problems from Hoem's medical data, pulmonologists would not notice these subtle problems. Dr. Sullivan and both defendants testified essentially to the same standard of care regarding internists.

In rebuttal, plaintiff attempted to present Dr. Robert Schoene, a board-certified pulmonologist, to testify that Dr. Fintel had accurately stated the applicable standard of care for pulmonologists. The trial court, however, restricted the extent to which plaintiff could do so under the general theory that plaintiff could have presented Dr. Schoene in her case in chief, but failed to do so.

On appeal, plaintiff argued that the trial court (1) erred by admitting testimony barred by the Dead-Man's Act (Ill.Rev.Stat.1991, ch. 110, par. 8-201); (2) improperly limited plaintiff's rebuttal witness' testimony; (3) failed to instruct the jury that the negligence of a subsequent party does not exonerate a prior act of negligence; (4) should have granted summary judgment for plaintiff on the issue of whether Dr. Arnold was an agent of the hospital; (5) erred in several evidentiary rulings; and (6) erroneously denied plaintiff's motion for judgment notwithstanding the verdict.

The appellate court reversed and remanded. That court found that the trial court erred in allowing Dr. Zia to testify to what Hoem told him during Hoem's visit because such testimony violated the Dead-Man's Act (Ill.Rev.Stat.1991, ch. 110, par. 8-201). The appellate court further held that the trial court had erroneously restricted the rebuttal testimony of Dr. Schoene. The appellate court found no error in the last four claims of error by plaintiff.

II. APPEAL TO THIS COURT

A. The Dead-Man's Act

On appeal to this court, defendants first argue that the trial court was correct in allowing Dr. Zia's testimony concerning his examination of Richard Hoem. Defendants submit that this testimony was permissible under the Dead-Man's Act because plaintiff waived the bar of the Act by earlier eliciting testimony from her expert witness, Dr. Fintel, about the meaning of Dr. Zia's office notes concerning the October 31, 1988, medical examination and introducing the notes themselves into evidence.

The first office note, prepared October 31, 1988, in Dr. Zia's handwriting, states:

"10/31/88 Aug--C spine SX--SOB

Now--Tight across

chest--c exercise

No palpitations--or wheeze--"

The other note in question reads as follows:

"Patient comes for follow-up today. He is complaining of pain and tightness in the upper chest area. This occurs primarily with exertion and does seem to radiate down his arms. He was initially evaluated by Dr. Hubbard for cervical arthritis and arthralgias and this has not been a problem recently. He is having no fevers, chills, sweats, palpitations, heart irregularity, wheezing, sputum production or other complaints.

On exam today he has blood pressure 144/100, states this is frequently high on visits to the doctor but is otherwise normal. He does not have any wheezing. The diaphragms appear to move well bilaterally. Cardiac exam is entirely normal. He has no peripheral edema or peripheral findings.

Based on the above we have ordered a chest x-ray and asked x-ray to check for diaphragmatic motion. He has had previous left pleural thickening on a somewhat idiopathic basis. We have also ordered a complete pulmonary function with methacholine challenge and possible cardiopulmonary stress test depending on the above. We will call him after the above results and schedule any additional testing that is necessary."

Based on the information found in these note, Dr. Fintel, plaintiff's expert in her case in chief, testified that because Hoem complained of chest pains and tightness, Dr. Zia should have explored possible heart problems.

During defendants' case in chief, Dr. Zia testified that Hoem did not complain of chest pain during this October 1988 visit. Dr. Zia testified as follows:

"[Defense Counsel]: I think I had asked you, Doctor, did Mr. Hoem say the reason he was back?

[Dr. Zia]: Yes, he did.

[Defense Counsel]: What did he say?

[Dr. Zia]: As Mrs. Hoem had mentioned earlier, he had come back for a follow up on his lung condition and his shortness of breath.

[Defense Counsel]: What did Mr. Hoem tell you by way of history,...