Petryshyn v. Slotky

• Citation: 387 Ill. App. 3d 1112,902 N.E.2d 709
• Decision Date: 29 July 2008
• Docket Number: No. 4-07-0754.,4-07-0754.
• Parties: Kimberly A. PETRYSHYN, Plaintiff-Appellee, v. Barry SLOTKY, M.D., Individually; and Barry Slotky, M.D., S.C., Defendants-Appellants (OSF Health Care System, d/b/a St. Joseph Medical Center, Defendant).
• Court: United States Appellate Court of Illinois

902 N.E.2d 709

387 Ill. App. 3d 1112

Kimberly A. PETRYSHYN, Plaintiff-Appellee, v. Barry SLOTKY, M.D., Individually; and Barry Slotky, M.D., S.C., Defendants-Appellants (OSF Health Care System, d/b/a St. Joseph Medical Center, Defendant).

No. 4-07-0754.

Appellate Court of Illinois, Fourth District.

July 29, 2008.

Rehearing Denied September 11, 2008.

Justice STEIGMANN delivered the opinion of the court:

This case presents the question of whether a physician may be qualified to testify as an expert regarding the standard of care of a nurse who was a surgical team member. We hold that the physician in this case was so qualified.

Plaintiff, Kimberly A. Petryshyn, sued defendants, Barry Slotky, M.D., S.C., and OSF Health Care System, d/b/a St. Joseph Medical Center, alleging medical malpractice, based on complications she suffered after undergoing a March 1999 cesarean-section surgery (hereinafter the C-section). St. Joseph Medical Center and Petryshyn later settled. Following a March 2007 trial, with Slotky as the sole defendant, a jury returned a verdict in his favor.

In April 2007, Petryshyn filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial, arguing that the trial court erred by admitting into evidence her expert physician's testimony—which she elicited in an evidence deposition—regarding the applicable nursing standard of care. Following an August 2007 hearing, the court granted her motion for a new trial.

Slotky appeals the trial court's decision granting Petryshyn's motion for a new trial. We reverse.

I. BACKGROUND

In March 1999, Petryshyn experienced labor pains and was admitted to St. Joseph Medical Center as Slotky's patient. Slotky placed an intrauterine pressure catheter (hereinafter IUPC) into Petryshyn's uterus to monitor the strength and frequency of her labor contractions. Because Petryshyn's labor was not progressing normally, Slotky performed a nonemergency C-section and successfully delivered Petryshyn's child.

In July 1999, Petryshyn first experienced an uncomfortable "poking" or "stabbing" pain in her pelvic region. From April through July 2000, Petryshyn sought treatment from another physician on six different occasions, complaining of (1) extreme lower abdominal pain, (2) heavy bleeding, and (3) urinary and bowel pain. In August 2000, she again sought medical treatment for stabbing abdominal pains that had steadily increased in severity and frequency. A pelvic examination revealed that a "pointy" foreign object was protruding from her left vaginal wall. An ultrasound and X-ray later revealed that the foreign object, which contained an electronic connecting wire, was inside Petryshyn's pelvis. The foreign object was later removed and identified as an 11.3-centimeter portion of an IUPC.

Petryshyn sued Slotky and St. Joseph Medical Center, alleging medical malpractice. As earlier noted, prior to trial, Petryshyn settled with St. Joseph Medical Center, which is not a party to this appeal.

In February 2007, David M. Priver, a board-certified physician in obstetrics and gynecology with 33 years of experience, testified as Petryshyn's expert in an evidence deposition. At a March 2007 hearing immediately prior to the jury trial) which occurred after Petryshyn settled with St. Joseph Medical Center, Petryshyn moved to disavow the portion of Priver's evidence deposition testimony that pertained to the nursing standard of care. Because Slotky had previously disclosed to Petryshyn that he adopted Priver's opinion testimony pursuant to Supreme Court Rule 213 (210 Ill.2d R. 213), he sought to introduce the testimony Petryshyn moved to disavow pursuant to Supreme Court Rule 212(c) (210 Ill.2d R. 212(c)). See Adams v. Sarah Bush Lincoln Health Center, 369 Ill.App.3d 988, 1001, 314 Ill. Dec. 190, 874 N.E.2d 100, 111 (2007), quoting Prince v. Hutchinson, 49 Ill.App.3d 990, 995, 8 Ill.Dec. 311, 365 N.E.2d 549, 552 (1977) ("`An evidence deposition is not the "property" of the party who takes it, and any portion of an evidence deposition may be offered by either side'"). Petryshyn objected, arguing that Priver's testimony concerning the nursing standard of care—testimony that she elicited on direct examination in the evidence deposition— was inadmissible under the decision of the Supreme Court of Illinois in Sullivan v. Edward Hospital, 209 Ill.2d 100, 119, 282 Ill.Dec. 348, 806 N.E.2d 645, 657 (2004). After considering the parties' arguments, the court overruled Petryshyn's objection, finding that Priver's testimony regarding the nursing standard of care was "integrally related" to the functions of the surgical "team." The record shows that the "surgical team" involved in Petryshyn's C-section consisted of two nurses and Slotky.

On direct examination, Priver testified that a pregnant patient's overall labor status is monitored through an IUPC. Priver explained that an IUPC has an electronic pressure sensor that is inserted into the patient's uterine cavity through the birth canal and cervix to monitor (1) uterine-contraction duration and (2) the fetus' heartbeat. Additionally, the IUPC contains an internal wiring device that connects the pressure sensor to an external recording device. Priver also stated that although a physician inserts the IUPC in the uterus, it is normally removed by a nurse prior to childbirth.

Priver further explained that a C-section is a surgical procedure involving a small initial incision in the patient's lower abdomen. The initial incision is usually extended by using "bandage scissors," so called because they are blunt instruments that do not harm a patient's internal organs. Priver stated that following the C-section, the operating room staff typically performs a "sponge and instrument count" to confirm that no foreign objects remain in a patient's body. Priver opined that if a foreign object were to remain in a patient's body, it could cause infection, pain, and hemorrhaging.

Priver reviewed Petryshyn's medical records and depositions and opined that within a reasonable degree of medical certainty, (1) the IUPC (a) had not been removed when Petryshyn's C-section began and (b) was cut by bandage scissors as Slotky extended the initial incision, (2) approximately 10 centimeters of the IUPC remained inside Petryshyn's uterus after the C-section, (3) the retained portion of the IUPC would have been discovered if Slotky had manually examined Petryshyn's uterus, and (4) Slotky violated the physician's standard of care by (a) allowing the IUPC to remain in Petryshyn's uterus and (b) failing to check the uterus before closing the C-section incision. Priver based his last opinion on the fact that the labor-and-delivery records contained no showing that Slotky had conducted a manual examination of Petryshyn's uterus.

Priver also opined that within a reasonable degree of medical certainty, the nurses violated their standard of care by not inspecting the IUPC to ensure that it was intact before discarding it. Priver further testified that if the nurses had seen that the IUPC was not intact, it would have been within their standard of care to communicate their inspection results to Slotky.

On cross-examination, Priver acknowledged that (1) although Slotky had placed the IUPC in Petryshyn's uterus, the medical records did not identify who removed the portion of the IUPC that did not remain in Petryshyn's uterus and (2) a manual examination of the uterus is not always noted in the labor-and-delivery records. (Slotky testified that he did perform a manual examination of Petryshyn's uterus, even though he did not so note in the labor-and-delivery records.)

In Slotky's closing argument, he reminded the jury that Petryshyn's expert, Priver, testified that the operating room nurses failed to perform their required duties to (1) remove the IUPC prior to the C-section, (2) inspect all of the operating room equipment following the C-section, and (3) report to Slotky if any of the equipment was not intact. Essentially, Slotky argued that because Petryshyn's own expert testified that the nurses failed to perform their duty, it was not appropriate for the jury to hold him liable for Petryshyn's injuries, given that the nurses violated their standard of care. The jury later returned a verdict in Slotky's favor.

In April 2007, Petryshyn filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial, arguing that the trial court erred by allowing Priver's testimony regarding the applicable nursing standard of care. Following an August 2007 hearing on Petryshyn's motion, the court granted the motion for a new trial, concluding that, based upon the authority of Garley v. Columbia LaGrange Memorial Hospital, 351 Ill.App.3d 398, 286 Ill.Dec. 337, 813 N.E.2d 1030 (2004), the court had erred by permitting the jury to hear the portion of Priver's testimony regarding the nursing standard of care.

This appeal followed.

II. ANALYSIS

A. The Standard of Review

Slotky argues that the appropriate standard of review is de novo because the trial court erred as a matter of law by relying on Garley, which does not accurately reflect the current state of the law. Petryshyn responds that this court's review is under the abuse-of-discretion standard. We agree with Petryshyn.

A trial court's determination to grant or deny a new trial will not be disturbed absent an abuse of discretion. Smith v. Silver Cross Hospital, 339 Ill. App.3d 67, 74, 273 Ill.Dec. 935, 790 N.E.2d 77, 84 (2003); see also Lisowski v. MacNeal Memorial Hospital Ass'n, 381 Ill. App.3d 275, 283, 319 Ill.Dec. 440, 885 N.E.2d 1120, 1130 (2008) (where the First District, using the abuse-of-discretion standard, reversed the trial court's order for a new trial in a medical-malpractice case). "`"Abuse of discretion" means clearly against logic; the question is not whether the appellate court agrees with the [trial] court, but whether the [trial] court acted arbitrarily, without...