Rutledge v. St. Anne's Hosp.

• Decision Date: 10 June 1992
• Docket Number: No. 1-90-1653,1-90-1653
• Citation: 172 Ill.Dec. 495,230 Ill.App.3d 786,595 N.E.2d 1165
• Parties: , 172 Ill.Dec. 495 William RUTLEDGE, Plaintiff-Appellant, v. ST. ANNE'S HOSPITAL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1165

595 N.E.2d 1165

230 Ill.App.3d 786, 172 Ill.Dec. 495

William RUTLEDGE, Plaintiff-Appellant, v. ST. ANNE'S HOSPITAL, Defendant-Appellee.

No. 1-90-1653.

Appellate Court of Illinois First District, Third Division.

June 10, 1992.

Propp & Schultz, Chicago, for plaintiff-appellant.

Hinshaw & Culbertson (Debra S. Davy, Nancy G. Lischer, Gary J. Bazydlo, of counsel), Chicago, for defendant-appellee.

Presiding Justice GREIMAN delivered the opinion of the court:

Plaintiff William Rutledge appeals a judgment entered after an adverse jury verdict in a medical malpractice action. Plaintiff contends that he was prejudiced (1) by numerous remarks and arguments made by defense counsel in her opening and closing statements; (2) by defense counsel's violation of a stipulation as to the whereabouts of a witness not under either parties' control; and (3) by defense counsel's violation of defendant's own motion in limine.

We find that the cumulative effect of defense counsel's actions in ignoring the motion in limine and making improper statements which went far beyond the bounds of mere advocacy so prejudiced plaintiff that he was denied a fair trial and we remand this cause for a new trial.

Plaintiff brought this action for injuries he claims were sustained as a result of the negligence of Nurse Regina Zaworski, an employee of the defendant hospital. Plaintiff was hospitalized for a bladder infection in June of 1983, and on June 14 an intravenous needle and plastic catheter (IV) were inserted into his left wrist. The needle was removed and the catheter was taped to keep it in place if needed to transmit fluids or medication.

When Nurse Zaworski later removed the catheter, plaintiff claims she attempted to remove the tape and catheter at the same time but the tape would not come loose. Nurse Zaworski tried three or four times to extract the catheter but the tape remained adhered to his wrist and caused the catheter to move in a plunging direction while still inserted in his wrist. When the catheter repeatedly plunged into his wrist, it "wiggled" in a manner that caused extreme pain and plaintiff complained of the pain to Nurse Zaworski.

On the morning after plaintiff was discharged from the hospital on June 16, 1983, he noticed swelling in his wrist where the IV had been placed and called the hospital to report it. Three weeks later when plaintiff appeared for his next doctor's appointment, plaintiff told his physician, Dr. George Detrana, that he experienced pain in his left wrist and arm and that the vein in his wrist where the IV had been "was gone." Dr. Detrana diagnosed plaintiff as having arthritis. Unsatisfied with this determination as to the cause of the pain, plaintiff sought help from Dr. Peter Mayer in November of 1983, five months after his discharge from the hospital.

Dr. Mayer saw plaintiff six or seven times between November 1983 and November 1986 and diagnosed that plaintiff had a blood clot which resolved itself, leaving plaintiff with thrombophlebitis, an inflammation of the vein. Dr. Mayer testified that plaintiff currently has a chronic post-thrombophlebitic condition, which is a lesser but lasting pain associated with thrombophlebitis.

Testifying as an expert, Dr. Mayer stated that based upon the medical history which plaintiff gave him, he believes plaintiff's thrombophlebitis was caused by an IV which was roughly manipulated upon withdrawal.

Nurse Jeri Fiset, Director of Nursing at Lutheran General Hospital, also testified as an expert for plaintiff, stating that the standard of care for removing an IV requires removal of any dressings or tape securing the IV prior to removal of the IV itself. Her opinion, based upon the passages she read in plaintiff's deposition, was that Nurse Zaworski violated the standard of care in her removal of the IV.

Expert testimony for defendant included Claudia Beckmann, a part-time practicing nurse and part-time nursing instructor. Ms. Beckmann stated that she did not believe it necessary to remove all tape from the catheter prior to removal, nor did she believe that the hospital deviated from the standard of care, based upon her examination of plaintiff's medical records.

Nurse Zaworski testified for defendant, stating that while she had no independent memory of plaintiff, she did not believe she pulled on the catheter in the way plaintiff described, had never had such an experience, and would have noted it on plaintiff's hospital chart.

Plaintiff first alleges that in her opening statement, defense counsel strayed from the facts to make speeches, arguments and legal dissertations, sometimes using inflammatory language. Among the alleged transgressions in defense counsel's opening, all of which sustained objection: (1) counsel's characterization of the situation that "although the hospital is being sued here, the contest here is between Mr. Rutledge and Nurse Zaworski"; (2) counsel's improper attempts to argue law to the jury despite the parameters of appropriate legal theory and terminology set by the trial judge in chambers; (3) counsel's description of a "smoking gun" as an example of real evidence; (4) counsel's improper explanation to the jury that an expert witness must be in the same field as the person being charged; (5) counsel's gratuitous comments that the evidence is composed of "the medical records that were created before lawyers were involved"; (6) counsel's statement that plaintiff tells "two different stories"; (7) counsel's use of inflammatory language in stating that plaintiff accused Nurse Zaworski of "mangling" his arm.

Plaintiff also contends that there were numerous prejudicial comments made in defense counsel's closing argument as well, including: (1) counsel's comment that plaintiff failed to call Dr. Detrana as a witness, this after the parties had stipulated that the doctor, under neither party's control, was unavailable because of illness; (2) counsel's implication that plaintiff failed to sue the proper doctor; (3) counsel's statement that defendant was responsible for showing the jury "the only real evidence," meaning the medical records, when it was plaintiff who placed them into evidence; (4) defense counsel's second use of the term "smoking gun" when it had been deemed objectionable in opening argument; (5) counsel's statement to the jury that Nurse Zaworski's parents were in the courtroom watching her, an improper implication that defendant's witness must be telling the truth.

A reviewing court may not reverse a trial court's decision to grant a new trial merely because it would have come to a different conclusion, but rather it is required to find that the trial court abused its discretion in granting the post-trial relief. (Marotta v. General Motors Corp. (1985), 108 Ill.2d 168, 177, 91 Ill.Dec. 157, 483 N.E.2d 503; Bishop v. Baz (1991), 215 Ill.App.3d 976, 980, 159 Ill.Dec. 140, 575 N.E.2d 947.) In determining whether such discretion was abused, we must consider whether the losing party was denied a fair trial. Marotta, 108 Ill.2d at 177-78, 91 Ill.Dec. 157, 483 N.E.2d 503.

Defendant contends that plaintiff waives the alleged prejudice resulting from defense counsel's opening statement and violation of the motion in limine because plaintiff did not raise them in his post-trial motion.

While this is generally true, and the record in this case demonstrates that plaintiff did fail to raise them in his post-trial motion, it has long been held that a reviewing court can override waiver considerations in order to carry out its responsibility to provide a just result. In re Marriage of Sutton (1990), 136 Ill.2d 441, 446, 145 Ill.Dec. 890, 557 N.E.2d 869; Hux v. Raben (1967), 38 Ill.2d 223, 225, 230 N.E.2d 831; American National Bank and Trust Co. of Chicago v. Randall Bus (1991), 212 Ill.App.3d 133, 139, 155 Ill.Dec. 766, 569 N.E.2d 1377. The rule of waiver is a limitation on the parties and not upon the jurisdiction of the reviewing courts. (Sutton, 136 Ill.2d at 446, 145 Ill.Dec. 890, 557 N.E.2d 869; Pecoraro v. Kesner (1991), 217 Ill.App.3d 1039, 1045, 160 Ill.Dec. 874, 578 N.E.2d 53.) Supreme Court Rule 366 allows a reviewing court to use its discretion to "enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief * * * that the case may require." Ill.Rev.Stat.1989, ch. 110A, par. 366(a)(5).

In Hux, the supreme court determined:

"These provisions recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system." Hux, 38 Ill.2d at 224-25, 230 N.E.2d 831.

In the present case, plaintiff made appropriate objections at trial, thus alerting defendant and the trial court to its concerns about the issues here asserted. Therefore, we may invoke our power to examine plaintiff's issues regarding defendant's opening statement and violation of the motion in limine in order to provide a just result. Sutton, 136 Ill.2d 441, 145 Ill.Dec. 890, 557 N.E.2d 869.

Plaintiff did raise the issue of defense counsel's closing argument in his post-trial motion and we examine that argument to determine whether plaintiff was denied a fair trial. Marotta, 108 Ill.2d at 177-78, 91 Ill.Dec. 157, 483 N.E.2d 503.

Generally, improper argument or misconduct of counsel can be a sufficient basis to require a new trial. Mykytiuk v. Stamm (1990), 196 Ill.App.3d 928, 936, 143 Ill.Dec. 570, 554 N.E.2d 505; Bisset v. Village of Lemont (1983), 119 Ill.App.3d 863, 865, 75 Ill.Dec. 348, 457 N.E.2d 138.

In examining defense counsel's closing argument, we find that plaintiff was denied a fair trial because of defense counsel's prejudicial remarks which distorted and misrepresented the evidence and the law and was calculated to mislead the jury.

There are several transgressions upon which...