Hoem v. Zia

• Decision Date: 31 December 1992
• Docket Number: No. 4-92-0048,4-92-0048
• Parties: , 179 Ill.Dec. 986 Susan HOEM, as Executor of the Estate of Richard A. Hoem, Plaintiff-Appellant, v. Michael J. ZIA, M.D., J. Steven Arnold, M.D., Decatur Memorial Hospital and Central Illinois Lung Internists Associates, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 818

606 N.E.2d 818

239 Ill.App.3d 601, 179 Ill.Dec. 986

Susan HOEM, as Executor of the Estate of Richard A. Hoem, Plaintiff-Appellant, v. Michael J. ZIA, M.D., J. Steven Arnold, M.D., Decatur

Memorial Hospital and Central Illinois Lung

Internists Associates, Defendants-Appellees.

No. 4-92-0048.

Appellate Court of Illinois,

Fourth District.

Dec. 31, 1992.

Rehearing Denied Feb. 3, 1993.

Alexandra de Saint Phalle, Lodrigan, Potter & Randle, P.C., Springfield, for plaintiff-appellant.

John E. Fick, Samuels, Miller, Schroeder, Jackson & Sly, Decatur, for Decatur Memorial Hosp.

Michael J. Kehart, Albert G. Webber, Kehart, Shafter, Hughes & Webber, P.C., Decatur, for Zia and Central Ill. Lung Internists Associates.

Richard F. Record, Jr., Craig & Craig, Mattoon, for J. Steven Arnold, M.D.

Presiding Justice STEIGMANN 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. Plaintiff appeals, arguing that the trial court (1) erred by admitting testimony by Dr. Zia regarding what the decedent told him, and thus violated the Dead Man's Act (Ill.Rev.Stat.1991, ch. 110, par. 8-201); (2) improperly limited plaintiff's expert 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 many of its evidentiary rulings; and (6) erroneously denied plaintiffs' motion for judgment notwithstanding the verdict (JNOV).

We reverse and remand for a new trial.

I. BACKGROUND

Richard Hoem, a former nuclear maintenance inspector at the Clinton Nuclear Power Plant, died at the age of 43 of a heart attack on November 28, 1988, one day before he was scheduled to be seen by a cardiologist. Plaintiff alleges that Dr. Zia, along with his medical partner, Dr. Steven Arnold, negligently failed to recognize clear medical signs of Hoem's impending heart attack and to refer him immediately to a cardiologist for treatment.

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 1988, Hoem began to develop problems with his endurance. Although he frequently played golf and bowled, he started limiting his activities and eventually stopped golfing and bowling in the fall of 1988. In August 1988, he went to his family doctor, Dr. Miller, complaining of chest pain and shortness of breath. Dr. Miller referred Hoem to a neurosurgeon in September, who diagnosed Hoem's pain as "musculoskeletal." This doctor prescribed no treatment for Hoem's condition. Hoem instead sought treatment from his chiropractor, who had seen Hoem regularly since 1986. In the fall of 1988, Hoem visited this chiropractor 13 times for his pain.

Hoem was seen by defendant Dr. Michael Zia in 1984 regarding a lung problem. Hoem had failed a lung test in 1983 that his employer required in order for Hoem to work in a certain position at a nuclear power plant. In 1984, Hoem was seen by Dr. Zia regarding this condition. Although the 1983 test indicated that Hoem suffered from pleural effusion (fluid in the lungs), this fluid had unexplainably thickened into a mass in his left lung when Dr. Zia saw Hoem. The record does not indicate how Dr. Zia treated this condition, but it apparently did not require sustained treatment, and Hoem did not see Dr. Zia again until 1988.

Thinking that his problems in the fall of 1988 might relate to this lung condition, Hoem again went to Dr. Zia on October 31, 1988. Dr. Zia did not direct on that date that Hoem take an EKG. Plaintiff claims Dr. Zia should have done so because Hoem allegedly complained of some textbook indicators of heart problems. Instead, Dr. Zia administered a series of tests designed to detect lung problems and scheduled Hoem to undergo a cardiopulmonary stress test to measure lung capacity and fitness on November 11, 1988.

Because Dr. Zia was on vacation on November 11, 1988, his partner, Dr. Arnold, administered this 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 monitors blood pressure. Hoem warmed up for 3 minutes and then exercised for 6 minutes and 20 seconds on the stationary cycle while these instruments monitored his endurance. During the stress test, Hoem did not complain of any chest pain, which defendants contend shows that he did not suffer from heart problems at that time.

Dr. Arnold did not prepare a test report until two weeks later. Dr. Daniel Fintel, a cardiologist from Chicago, testified that the reading from the EKG taken during the test revealed certain heart problems that indicated that Hoem had recently suffered a "silent heart attack." He testified that had Dr. Arnold immediately prepared a report, he should have noticed this fact from the test results. He further testified that when Dr. Arnold did prepare the report, Dr. Arnold failed to notice the urgency of Hoem's condition and to hospitalize Hoem immediately under the care of a cardiologist.

Instead, 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. Hoem went to Chicago for Thanksgiving the weekend before this appointment and allegedly complained further of radiating pain in his chest. However, when he returned to work on November 27, the day after Thanksgiving, Hoem made no complaints to his secretary about his condition and did not seem to her to be experiencing any discomfort.

The next day, November 28, after Hoem walked up a flight of stairs to reach his office, he collapsed. His secretary immediately called the emergency medical technicians who worked at the Clinton power plant. Despite their efforts, Hoem did not survive this heart attack.

Dr. Zia and Dr. Arnold are both board-certified internists and pulmonologists. Plaintiff used Dr. Fintel, a board-certified internist and cardiologist, as her only expert in her case in chief. 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).

As mentioned above, 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. Among other things, Dr. Patel testified, contrary to Dr. Fintel's testimony, 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 what 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. Further, they all attributed Hoem's complaints of chest pains as symptoms of his lung problems, not his heart problems. Dr. Sullivan and both defendants testified essentially to the same standard of care regarding internists.

Plaintiff attempted to present Dr. Robert Schoene, a board-certified pulmonologist, in rebuttal to testify that Dr. Fintel had accurately stated the applicable standard of care for pulmonologists. However, the trial court severely 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.

As stated earlier, the jury returned a verdict for all defendants.

II. ANALYSIS OF REVERSIBLE ERRORS

A. Testimony to a Conversation with the Decedent under the Dead Man's Act

The plaintiff first argues that the trial court erroneously allowed Dr. Zia to testify about what Richard Hoem, the decedent, said to Dr. Zia on October 31, 1988, when Hoem was seen by Dr. Zia. Plaintiff argues that the admission of this testimony violates the Dead Man's Act (Act) ( Ill.Rev.Stat.1991, ch. 110, par. 8-201). We agree.

Defendants admit that Dr. Zia ordinarily could not testify about his conversation with Hoem under the Act. However, here they argue that plaintiff offered evidence that triggered the first exception listed in the Act: an adverse party may testify to a prior conversation with a now-deceased person when another person testifies to that conversation on behalf of the representative of the dead person. See Ill.Rev.Stat.1991, ch. 110, par. 8-201(a).

The Act provides the following:

"In the trial of any action in which any party sues or defends as the representative of a deceased person * * *, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased * * * or to any event which took place in the presence of the deceased * * *, except in the following instances:

(a) If any person testifies on behalf of the representative to any conversation with the deceased * * * or to any event which took place in the...