Lisowski v. Macneal Memorial Hosp. Ass'n
| Decision Date | 24 March 2008 |
| Docket Number | No. 1-07-0076.,1-07-0076. |
| Citation | 381 Ill.App.3d 275,885 N.E.2d 1120 |
| Parties | Jean LISOWSKI, Indiv. and as the Special Adm'r of the Estate of Edward A. Lisowski, Deceased, Plaintiff-Appellee, v. MacNEAL MEMORIAL HOSPITAL ASSOCIATION and John D. Brofman, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Tracy E. Stevenson, Robbins, Salomon & Patt, Ltg., Chicago, for Appellants.
Mark G. Basile, Basile Law Firm, Chicago, for Appellee.
Defendants MacNeal Memorial Hospital Association and John D. Brofman, M.D., appeal an order granting plaintiff Jean Lisowski's motion for a new trial. Plaintiff brought a negligence action against defendants after the death of her husband, Edward A. Lisowski (Lisowski). A jury returned a verdict for defendants. Plaintiff moved for a new trial. Her main contention was that the trial court erred in refusing to give the "missing-witness" jury instruction (Illinois Pattern Jury Instructions, Civil, No. 5.01 (2006) (hereinafter IPI Civil (2006) No. 5.01)) after defendants failed to produce their expert witness. We reverse and direct the trial court to reinstate the jury's verdict.
Plaintiff alleged in her complaint that Lisowski suffered years of ill health before his death because of defendants' negligence. She alleged Brofman was negligent in performing a thoracentesis to drain fluid from Lisowski's lungs through a chest tube on November 6, 1996. She also alleged Brofman failed to obtain Lisowski's consent to the procedure. Plaintiff alleged MacNeal Hospital was liable under an agency theory. During the procedure, Lisowski's diaphragm and liver were lacerated. He required emergency surgery and intensive care. He was released from the hospital 10 days after the procedure. He died three years later of ventricular fibrillation, a heart problem.
The first trial in October 2005 ended in a hung jury. The second trial, beginning on May 1, 2006, is the subject of this appeal.
In discovery, defendants disclosed Dr. Jesse Hall as a controlled expert witness under Supreme Court Rule 213(f)(3) (210 Ill.2d R. 213(f)(3)). Defendants said Hall, a pulmonologist and critical care specialist, would state that Brofman's conduct complied with the standard of care. Hall apparently was deposed in 2002 but the deposition is not in the record. Plaintiff maintains Hall stated in the deposition that Brofman deviated from the standard of care.
Plaintiff disclosed Dr. William Warren, a thoracic surgeon, as her expert witness under Rule 213(f)(3) (210 Ill.2d R. 213(f)(3)). Plaintiff did not disclose that Warren would say Lisowski suffered depression and suicidal tendencies because of Brofman's negligence. Plaintiff also disclosed Edward Allen Lisowski (Edward), the couple's son, who plaintiff said would testify to family hardships attributable to Brofman's negligence. Three months before the trial, plaintiff's counsel sent a letter to defense counsel, asking to add Hall as a plaintiff's witness if defendants intended to abandon him. Defense counsel responded by letter, stating defendants had not abandoned Hall.
In opening statements, plaintiff's counsel told the jury that Hall would testify and state that Brofman deviated from the standard of care by inserting the chest tube at the wrong location and in the wrong direction. Defense counsel did not object.
Plaintiff called Brofman in her case in chief as an adverse witness under section 2-1102 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1102 (West 2006)). Brofman denied deviating from the standard of care either in performing the thoracentesis or in obtaining consent. Brofman said he received training from Hall when he was a medical student. Brofman denied having "independent knowledge" of Hall's alleged opinion that Brofman deviated from the standard of care in treating Lisowski.
Plaintiff's expert Dr. Warren said he reviewed the medical records from the procedure, the depositions of the treating physicians, a 1999 electrocardiogram report and an autopsy report in forming his opinions. Warren said Brofman deviated from the standard of care in obtaining consent while Lisowski was sedated and in the way he performed the thoracentesis. Warren admitted on cross-examination that he did not know how Lisowski reacted to sedation or his mental capacity at the time he allegedly consented. Warren said obtaining consent after as little as one-tenth of a milligram of the sedative would be a deviation from the standard of care. The trial court barred Warren from testifying that Lisowski was depressed and suicidal after the procedure because plaintiff failed to disclose these opinions in discovery.
Defendants called Brofman in their case in chief. He testified, "I believe that the anatomical landmarks I chose and the techniques I chose and the care with which the tube was inserted all complied very much with the standard of care." The following took place in the jury's presence during cross-examination of Brofman by plaintiff's counsel:
"Q. [(by plaintiff's counsel)] * * * [Y]ou said you did [your training in] pulmonary critical care at the University of Chicago, correct?
A. [(Brofman)] Yes.
Q. And that in fact was under Dr. Jesse Hall, the expert that your counsel has retained in this case, correct?
A. * * * Dr. Hall was part of the faculty at the time I was there, yes.
Q. So you were actually studying under Dr. Jesse Hall, correct?
A. Dr. Hall was part of the faculty and was involved in my training.
Q. Right. So when Dr. Hall comes in here later today and tells us that you violated the standard of care by inserting the chest tube [as you did], * * * do you have any problem with him testifying to that * * *?
MS. STEVENSON [(defendants' counsel)]: Objection. Move to strike.
THE COURT [(to plaintiff's counsel)]: Counsel, you have now taken the burden to bring Dr. Hall in.
BY MR. BASILE [(plaintiff's counsel)]:
Q. Do you have any problems with him testifying to that, or are you going to have a problem with qualifications?
A. [(by Brofman)]: Dr. Hall is certainly free to testify in any way he chooses * * *."
After Brofman's testimony, defense counsel presented written motions for directed verdicts on the issues of consent and medical negligence. The trial court took the motions under advisement. Later, in the jury instruction conference, the following took place:
"THE COURT: Plaintiff's instruction No. 1 is instruction [IPI Civil (2006) No. 5.01], failure to call a witness. I take it you're referring to Jesse Hall?
MS. STEVENSON [(defendants' counsel)]: My objection is that the plaintiff shifted the burden of proof * * * by putting in statements which defense did not put in. Therefore, the [IPI Civil (2006) No. 5.01] instruction as against the defendant only is improper because it was the plaintiff who made all of the issues about what this expert was going to say.
[Hall] is currently unavailable this afternoon because of surgical and other issues and I could not bring him in today, but I told you this morning that if that was the case, we were ready to proceed and close without him.
MR. BASILE: * * * [B]ack in February of 2006[,] I sent a letter to defense counsel telling her that I wanted to call Dr. Hall as one of my witnesses. I also wanted to amend my [Rule 213 disclosures].
She sent me a letter * * * indicating that [defendants had] not abandoned Dr. Hall and that they intended to call him in their case in chief.
The deposition of Dr. Hall in various parts states that Dr. Brofman violated the standard of care. Even until now, and the Court is aware, defense counsel has indicated that Jesse Hall would be here to testify.
However, when you indicated to that jury that [the] doctor would testify, you then brought it upon yourself to produce that doctor to testify. * * *
* * *
* * * Both parties had an obligation to produce the doctor, nobody produced him. Therefore, the Court will not give the instruction, and the Court will strike references to what Dr. Jesse Hall may have testified to.
* * *
MR. BASILE [(plaintiff's counsel)]: So the record is clear also, the witness at this point has not been abandoned by the defense counsel, and I would at this time request an opportunity to call him in. * * * We would ask that we could reopen our case and call him as another witness or a rebuttal witness.
At this point, if [defense counsel is] going to stipulate for the record she's abandoned him, I'd like the opportunity to call him in as a rebuttal witness.
In closing arguments, plaintiff's counsel said Brofman's conduct caused serious injury to Lisowski. Counsel argued that defendants...
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