Perez v. Hartmann, 1-88-3222

• Decision Date: 30 August 1989
• Docket Number: No. 1-88-3222,1-88-3222
• Citation: 135 Ill.Dec. 455,543 N.E.2d 1023,187 Ill.App.3d 1098
• Parties: , 135 Ill.Dec. 455 Steven PEREZ, Plaintiff-Appellee, v. Joseph HARTMANN, M.D., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1023

543 N.E.2d 1023

187 Ill.App.3d 1098, 135 Ill.Dec. 455

Steven PEREZ, Plaintiff-Appellee, v. Joseph HARTMANN, M.D., Defendant-Appellant.

No. 1-88-3222.

Appellate Court of Illinois First District, Third Division.

Aug. 30, 1989.

Mark Wolfe and Kimberly A. Baker, Chicago (Brinton, Bollinger & Ruberry, of counsel), for defendant-appellant.

Mullen, Minella & Chase, Chicago (John C. Mullen and Cynthia L. Chase, of counsel), for plaintiff-appellee.

Presiding Justice FREEMAN delivered the opinion of the court:

Plaintiff, Steven Perez, sued defendant, Dr. Joseph Hartmann, for medical malpractice in connection with defendant's treatment of plaintiff at Good Samaritan Hospital (Good Samaritan) in 1982. A jury trial resulted in a verdict for plaintiff in the amount of $40,000. Defendant appeals from the judgment for plaintiff.

Plaintiff was taken to Good Samaritan on August 7, 1982 with complaints of shortness of breath, headache, nausea, dizziness and chest pain. After being examined in the emergency room, plaintiff was admitted to the telemetry unit for monitoring of his heartbeat for any abnormalities. Shortly thereafter, a nurse at the nursing station outside plaintiff's room noticed that the monitor connected to plaintiff exhibited a flat line, indicating a condition known as asystole or, more commonly, cardiac arrest. The nurse went into plaintiff's room, examined him for a pulse, found none and, with another nurse, began cardiopulmonary resuscitation (CPR). At this time a Code Blue condition was instituted. Defendant, who was then making his rounds, reported to plaintiff's room in response to the Code Blue. Defendant found plaintiff being attended to by several nurses. Upon examining plaintiff, defendant detected no pulse or breathing and believed that plaintiff had experienced an episode of sudden death. As defendant assisted in administering cardiac massage to plaintiff, he was informed by one of the nurses that she had seen a long period of asystole prior to the Code Blue which prompted her to administer CPR.

However, due to the trial court's grant of plaintiff's motion in limine, defendant was precluded from testifying that the nurse also handed him a strip of paper produced by the nursing station monitor (EKG strip) indicating the asystolic episode. Plaintiff's motion was grounded upon defendant's alleged failure to produce the EKG strip despite the fact that plaintiff had sought it for over four years. The trial court's order prohibited any reference to the strip but allowed the nurses to testify as to what they had seen on the monitor.

The efforts of the nurses and defendant revived plaintiff. Thereafter, he was hooked up to a second portable monitor in his room. Shortly thereafter, defendant claimed but plaintiff denied, plaintiff experienced a second period of total asystole producing a flat line on the portable monitor. Thereupon, defendant administered a precordial thump, i.e., one fist to the chest, and cardiac massage. Plaintiff once again regained consciousness. Plaintiff was then transferred to the intensive care unit where defendant took a history and performed a physical examination. Although plaintiff related a history of chest pain, dizziness, light-headedness and shortness of breath, defendant was unable to detect any patent abnormality. Defendant determined that the two episodes of asystole which he claimed plaintiff had experienced warranted the implantation of a temporary pacemaker.

After its implantation, defendant was able to rule out heart attack as the cause of plaintiff's asystolic episodes. After a period of time during which the temporary pacemaker functioned properly and additional tests were conducted upon plaintiff, defendant discussed the possibility of a permanent pacemaker with plaintiff. Ultimately, a permanent pacemaker was implanted by a cardiovascular surgeon at Good Samaritan. Defendant testified that plaintiff had no complaints after the operation except for local discomfort at the location of implantation. However, plaintiff testified that, after the operation, he started getting headaches and chest pains and did not feel well.

After his discharge on September 13, 1979, plaintiff returned to the hospital with complaints of headaches, chest pain, dizziness and faintness. Plaintiff also complained that he could feel his pacemaker fire. After testing, defendant found no correlation between plaintiff's complaints that he could feel the pacemaker fire and its actual firing. Nor did defendant find any abnormalities in the pacemaker. After a neurological examination, plaintiff was diagnosed as suffering from migraine headaches and mild anxiety neurosis. Plaintiff left the hospital against the advice of hospital personnel. He returned on September 23 and had his blood pressure checked and an electrocardiagram, or EKG, taken. On September 29, plaintiff sought treatment at the University of Illinois Hospital (U. of I.) for chest pains and headaches. During plaintiff's treatment at U. of I., his pacemaker was removed.

OPINION

Defendant first contends the trial court abused its discretion in sanctioning his failure to produce the EKG strip made on August 7, 1979 by barring any reference to it at trial, although the defense produced it one month before trial.

Defendant asserts that, like the plaintiff's counsel in Department of Transportation v. Mainline Center, Inc. (1976), 38 Ill.App.3d 538, 347 N.E.2d 837, his counsel also took over the case from another attorney and did not know that his client had not complied with a discovery order. Defendant also notes that, similarly to the defendant's counsel's failure in that case to inform plaintiff's new counsel during several pretrial meetings of any failure to comply with discovery, plaintiff's counsel here failed to notify defendant's new counsel of any extant discovery disputes although the latter asked to be advised of any discovery matters upon coming into the case.

Contrary to defendant's arguments, we find Mainline Center, a condemnation case, distinguishable. Therein, the exclusion of all of the plaintiff's appraisal witnesses for failure to comply with a discovery order "substantially precluded plaintiff from introducing any pertinent evidence on the main issue under consideration, leaving the jury with only defendant's version as to the extent of damages." (Emphasis added.) (Mainline Center, 38 Ill.App.3d at 540, 347 N.E.2d 837.) Here, in contrast, defendant was not precluded from introducing any evidence on one of the main issues here, i.e., whether plaintiff had experienced a second asystolic episode. As such, the jury in this case, unlike that in Mainline Center, did not have before it only the plaintiff's claim that he had not suffered a second episode of asystole.

Moreover, in Mainline Center, because the file received by the plaintiff's new counsel contained neither a copy of the discovery order nor any reference to it, he first learned of the order when the defendant presented its motion to exclude witnesses. In contrast, it is undisputed that the file in this case contained a letter, dated December 17, 1982, from plaintiff's former counsel to defendant's former counsel requesting a copy of the "missing medical records referenced," viz., the EKG strip, at the deposition of plaintiff's expert, Dr. Gerard Parent. The file also contained a trial court order, dated July 30, 1984, that defendant "produce the original medical record showing a 6 second period of asystole of the plaintiff." Finally, the file contained motions by plaintiff to bar evidence and for a rule to show cause, noticed for November 20, 1985. The motion to bar evidence alleged defendant's noncompliance with the July 30, 1984 order and specifically referred to "medical records and telemetry monitoring strips." Similarly, the motion for rule alleged Good Samaritan's noncompliance with a subpoena issued December 11, 1984.

Thus, unlike the file in Mainline Center, the file in this case sufficiently put defendant's new counsel on notice that there was a possibility, if not a probability, of an extant problem with discovery, notwithstanding plaintiff's counsel's failure to inform it of that fact. If defendant's counsel did not know of the problem until after it produced the EKG strip to plaintiff a month before trial, it should have.

Defendant notes that sanctions are appropriate when an uncooperative party demonstrates a deliberate, contumacious or unwarranted disregard of a court's authority (Mainline Center ) and asserts that that is not the case here. We disagree.

Specifically, defendant's testimony in his offer of proof supports a conclusion that the failure to produce the strip was deliberate, contumacious and unwarranted. In his offer of proof, defendant denied that his former counsel had or had seen the EKG strip prior to Dr. Parent's deposition, conducted in 1982. This was contrary to the impression made by defense counsel when he revealed the existence of the strip at the deposition. However, defendant did state that, sometime thereafter, he asked the director of medical records at Good Samaritan to copy the EKG strip and send it to him and that he forwarded the strip, apparently, to his former counsel.

Defendant's testimony thus belies his assertion that his former counsel could not and did not obtain the EKG strip although he attempted to satisfy plaintiff's request for it. As defendant admitted that his former counsel had the strip and as this had to be by 1986, at the latest, when his new counsel took the case over, he could not avoid the consequences, either intentionally or otherwise, of a failure to forward a copy of the strip to plaintiff by obtaining new counsel.

Uhwat v. Country Mutual Insurance Co. (1984), 125 Ill.App.3d 295, 80 Ill.Dec. 618, 465 N.E.2d 964, also fails to compel a finding of an abuse of discretion here. In Uhwat, the defendant asserted that the trial court erred in admitting copies of...