McCray v. Salah Uddin Shams, M.D., S.C.

• Decision Date: 10 February 1992
• Docket Number: No. 2-91-0423,2-91-0423
• Citation: 587 N.E.2d 66,224 Ill.App.3d 999,167 Ill.Dec. 184
• Parties: , 167 Ill.Dec. 184 Ruth McCRAY, Indiv. and as Special Adm'r of the Estate of Avery McCray, Deceased, Plaintiff-Appellant, v. SALAH UDDIN SHAMS, M.D., S.C., and Kaukab M. Shams, Ex'r of the Estate of Salah Uddin Shams, Deceased, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 66

587 N.E.2d 66

224 Ill.App.3d 999, 167 Ill.Dec. 184

Ruth McCRAY, Indiv. and as Special Adm'r of the Estate of Avery McCray, Deceased, Plaintiff-Appellant, v. SALAH UDDIN SHAMS, M.D., S.C., and Kaukab M. Shams, Ex'r of the Estate of Salah Uddin Shams, Deceased Defendants-Appellees.

No. 2-91-0423.

Appellate Court of Illinois Second District.

Feb. 10, 1992.

Patrick A. Salvi, Waukegan, Michael P. Schostok, Megan E. Chadwick, Law Offices of Patrick A. Salvi, Waukegan, for Ruth McCray, Sp. Adm'r.

Donald L. Sime, Brydges, Riseborough, Morris, Franke & Miller, Waukegan, for Salah Uddin Shams, M.D., S.C., and Kaukab M. Shams, Ex'r.

Justice WOODWARD delivered the opinion of the court:

Plaintiff, Ruth McCray, both individually and as the special administrator of the estate of Avery McCray (Avery), deceased, filed a medical malpractice case against the defendant, Dr. Salah Uddin Shams, M.D., S.C. Following trial, the jury found for the defendant, who subsequently died. The executor of Dr. Shams' estate was substituted as a party defendant. Plaintiff appeals from the jury's verdict, raising the following issues: (1) whether the trial court erred in granting defendant's motion in limine; (2) whether the trial court erred in limiting plaintiff's cross-examination of one of defendant's expert witnesses; and (3) whether the trial court erred in denying plaintiff's motion for a new trial based upon defendant's improper closing argument.

The facts of this case are for the most part undisputed. Dr. Shams, an internist, had been Avery McCray's doctor since 1977. On February 17, 1988, the 49-year-old Avery was admitted to Victory Memorial Hospital. Dr. Shams examined him and took a history which included fever, diarrhea, stomach pains and an inability to hold even light food down for a period of five days. Avery also complained of numbness in his fingers and being chilly. Avery's temperature was taken rectally and was 102.9. A CBC (complete blood count) was done at the time of his admission to the hospital which showed a shift to the left in his white blood count. Subsequent tests on February 18 and 19 also showed a shift to the left in his white blood count. Dr. Shams also ordered a stool sample which was negative for staph, salmonella and campylobacter.

Dr. Shams initially diagnosed Avery as suffering from enteriocolitis (an inflammation of the intestine including the large bowel) and possible flu syndrome (virus in the gastrointestinal tract). He did not order a blood culture or consult with a specialist because he did not believe Avery was suffering from a bacterial infection, such as septicemia.

Between February 17 and 19, Avery continued to suffer from nausea, although it was controlled, first, by medication and then by a tube into his stomach. He did not complain further of chills, and his vital signs were stable. His temperature continued to go down, and on February 20, 1988, it was 99.4, taken orally. He was given a shot of Demerol for pain. On the 20th, he ate lunch consisting of liquids, which he tolerated well. At 2:45 p.m., Avery was sitting up unassisted, appeared alert and had no complaints. At approximately 3:30 p.m., a nurse discovered Avery was not breathing and had no pulse. Attempts to resuscitate him failed, and he was pronounced dead.

Dr. U. Khin, a pathologist at Victory Memorial Hospital, performed an autopsy on Avery. Initially, he was unable to determine the cause of death. However, after working up a number of tissue slides, he concluded that Avery died from myocarditis, which occurs when the heart muscle is attacked by inflammatory cells. A second autopsy was performed by Dr. Eupil Choi, a pathologist employed by the Cook County medical examiner's office. Dr. Choi determined the cause of death to be sepsis due to enteriocolitis.

At trial, plaintiff presented expert testimony by Dr. Stanley Rabinowitz, board certified in internal medicine with a subspecialty in infectious diseases, and by Dr. Choi to support her theory that Dr. Shams failed to conform to the standards of medical care in his treatment of Avery in that he failed to order a blood culture which would have revealed the presence of a bacterial infection, i.e., sepsis, and failed to consult with a specialist in infectious diseases. As a result of Dr. Shams' failure to so act, Avery died of sepsis which if treated properly would not have caused his death. Defendant presented medical experts: Dr. Jeffrey Semel, board certified in internal medicine and infectious diseases, Dr. Khin and Dr. Michael Kaufman, board certified in anatomic pathology and cytopathology. Defendant's experts agreed that Avery did not suffer from or die of sepsis or septic shock. Dr. Khin and Dr. Kaufman were of the opinion that myocarditis led to Avery's death. Dr. Semel was of the opinion that no definite cause of death could be determined but that myocarditis was a possibility.

The jury returned a verdict in favor of the defendant. Plaintiff's post-trial motion was denied, and this appeal followed.

Plaintiff contends, first, that the trial court erred in granting defendant's motion in limine. Specifically, plaintiff argues that the jury should have been informed of Dr. Shams' failure to pass the board-certification examination in internal medicine.

Initially, we must disagree with the defendant's position that Dr. Shams' failure to pass the board-certification examination is a collateral issue. When a physician sued for malpractice testifies as an expert, evidence as to his age, practice and like matters going to his qualifications as an expert is admissible. Ward v. Epting (App.1986), 290 S.C. 547, 351 S.E.2d 867, 872; 61 Am.Jur.2d Physicians, Surgeons, & Other Healers § 346 (1981).

In Ward v. Epting, Dr. Epting, an anesthesiologist, was sued for medical malpractice. At trial, the plaintiff was allowed to elicit from Dr. Epting that she had failed the board-certification examinations for anesthesiology. On appeal from a jury verdict for plaintiff, Dr. Epting contended that the trial court erred in denying her motion in limine which would have prevented the jury from hearing of her failed attempts to pass the board-certification examination. In affirming the trial court's decision on this issue, the reviewing court stated:

"Although Dr. Epting stated that she would not testify as an expert, her qualifications as an anesthesiologist were brought out on direct examination. Her counsel asked if she had a separate license for anesthesia. She testified as to routine surgical and recovery room procedures in addition to her own actions in the circumstances of this case. She gave her own opinion to a reasonable degree of medical certainty as to how air got into Mrs. Ward's stomach, and when the tube moved into the esophagus. On cross-examination, she gave her opinion that Mrs. Ward had a bronchospasm in the lower part of the lungs.

We hold the record shows Dr. Epting testified as an expert on medical issues. The fact that she was not board certified relates to her credibility as a witness since she gave medical opinions." 351 S.E.2d at 872-73.

Defendant does not dispute plaintiff's position that Dr. Shams testified as a medical expert in this cause. Indeed, the record supports that characterization of his testimony. Dr. Shams testified that he regarded himself as a specialist in the field of internal medicine. He testified as to the examination, diagnosis and subsequent treatment of Avery McCray. He testified as to the reasons he treated Avery for a viral infection rather than a bacterial one and explained why he did not order blood cultures or consult with a specialist. There can be no serious disagreement that Dr. Shams testified as an expert witness. Ward, 351 S.E.2d at 872.

We find the case of O'Brien v. Meyer (1989), 196 Ill.App.3d 457, 143 Ill.Dec. 322, 554 N.E.2d 257, to be distinguishable. In that case, plaintiff's medical expert, a Florida physician who had been determined qualified to testify by the trial court, was compelled to reveal that she had failed the Illinois medical licensing examination. In determining that the trial court committed reversible error in failing to bar reference of the doctor's failure to pass the Illinois test, the reviewing court stated:

"We believe that once the qualifying threshold has been met, attempts to impeach the expert's opinion should have a clear link to facts and assumptions underlying the opinion, the methodology or testing used, the knowledge and experience of the expert in the matters to which he testifies, personal bias (such as the fact he or she is paid to testify), and so forth. Matters going to schooling and licensing are in a different category, we believe, because of their attenuated relevance to the medical opinion in issue. * * * Similarly, as long as an expert witness has obtained a license to practice medicine in one State, his or her failure to obtain a license in another has limited significance, at best.

* * * * * *

We do not pronounce an all-encompassing rule on if or when an expert's opinion may ever be impeached by the failure to pass a licensing examination. In general, we believe, the existence of a license goes only to the initial qualifying inquiry. If the witness holds a license in one State, her failure to pass the equivalent licensing examination in another State should not preclude her from testifying, absent other considerations that may be pertinent. Here, the expert's qualifications were based on long experience in particular specialties." 196 Ill.App.3d at 462-64, 143 Ill.Dec. 322, 554 N.E.2d 257.

We find it significant that the court in O'Brien distinguished Ward v. Epting on the basis that since Dr. Epting was giving an expert opinion relating to a speciality in which she had not obtained certification, her credibility as a specialist was in issue. Moreover, her lack of certification was a material issue because it bore on whether she was qualified...