Smith v. Silver Cross Hosp.

• Decision Date: 15 May 2003
• Docket Number: No. 1-02-0360.,1-02-0360.
• Citation: 339 Ill. App.3d 67,273 Ill.Dec. 935,790 N.E.2d 77
• Parties: Deanne SMITH, as Administratrix of the Estate of Thomas Smith, Jr., Deceased, Plaintiff-Appellant, v. SILVER CROSS HOSPITAL, Habib Abbasi, M.D. and Fischer Mangold Group, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

790 N.E.2d 77

339 Ill. App.3d 67

273 Ill.Dec. 935

Deanne SMITH, as Administratrix of the Estate of Thomas Smith, Jr., Deceased, Plaintiff-Appellant, v. SILVER CROSS HOSPITAL, Habib Abbasi, M.D. and Fischer Mangold Group, Defendants-Appellees.

No. 1-02-0360.

Appellate Court of Illinois, First District, Fourth Division.

May 15, 2003.

Zane D. Smith & Associates, Ltd., Chicago (Zane D. Smith, of counsel), for Appellant.

McKeown, Fitzgerald, Zollner, Buck, Hutchison & Ruttle, Joliet (Jean A. Kenol and Theodore J. Jarz, of counsel), for Silver Cross Hospital.

Schuyler, Roche & Zwirner, P.C., Chicago (Charles H. Cole and Dolores Ayala, of counsel), for Habib Abbasi, M.D. and Fischer Mangold Group.

Justice HARTMAN delivered the opinion of the court:

Plaintiff, Deanne Smith, as Administratrix of the Estate of Thomas Smith, Jr., deceased, appeals from the circuit court's denial of her motion for a new trial following a jury verdict in favor of defendants Silver Cross Hospital (SCH), Habib Abbasi, M.D. (Dr. Abbasi), and Fischer Mangold Group (Fischer), in this medical malpractice action. On appeal plaintiff contends that the circuit court erred in: (1) granting defendants' objection to plaintiff's motion to impeach Dr. Abbasi with his prior deposition testimony; (2) denying plaintiff's motion for a new trial based on the testimony of Margaret Johnson, R.N.; and (3) prohibiting the introduction into evidence of the 1998 version of SCH's policies and procedures.

At 1 a.m. on November 27, 1996, Thomas Smith, Jr. (decedent) presented at the emergency room (ER) at SCH complaining of flu-like symptoms including nausea, dizziness, cough, difficulty breathing, and fever. He was treated by Dr. Abbasi and diagnosed with fever, bronchitis, upper respiratory tract infection or flu, and vertigo. Decedent was discharged at 5:50 a.m. with instructions to return if his condition worsened. Decedent was picked up and taken home by his brother, Daniel Smith, at 7 a.m. Decedent's condition worsened during the day and he was taken to Palos Community Hospital at 1:25 p.m. The doctor there determined that decedent had a severe infection. Decedent died at 8 a.m. the next morning. It is undisputed that decedent died from an infectious disease called meningococcemia caused by the neisseria meningitidis bacteria.

Meningococcemia is a blood born disease that can affect all organs of the body. The early stages of meningococcemia can appear as a viral cold, flu, or upper respiratory infection. It was undisputed that a definitive diagnosis of meningococcemia could not have been made in the ER. One of the tell-tale signs of meningococcemia is skin lesions, including purplish bruises and petechiae (red dots on the skin). Dr. Abbasi testified that decedent did not have any skin lesions.

On April 1, 1998, plaintiff filed her wrongful death/medical negligence complaint against defendants to recover damages for the death of decedent, her husband. Plaintiff alleged that defendants' failed to diagnose properly and treat decedent.

On December 9, 1998, plaintiff sent a Supreme Court Rule 214 (166 Ill.2d R. 214) request to produce to SCH, requesting inter alia, SCH's nurses manual and all other rules and regulations of SCH "which were in effect at the time of the occurrence of medical malpractice alleged in Plaintiff's Complaint," as well as any subsequent revisions to those documents. In February 1999, SCH responded in writing to plaintiff's request to produce and informed plaintiff that the policy and procedure manuals she sought were voluminous and that arrangements should be made for plaintiff's counsel to inspect the contents of these manuals to determine more specifically what was needed. SCH also informed plaintiff that the policy and procedure manuals were updated periodically and that the policies in effect on the date of the occurrence may not have been preserved.

SCH provided plaintiff's counsel with a table of contents for all the policy and procedure manuals. In August 2001, plaintiff's counsel identified the sections he wished to review and they were made available for inspection and photocopying. Many of the policies and procedures requested by plaintiff were adopted and effective in 1998. The policies and procedures that were in existence at the time of decedent's treatment (the 1996 policies and procedures) were destroyed during the normal updating and revision process at SCH. Because SCH did not keep copies of the 1996 policies and procedures, it is unclear if or how they differ from the 1998 policies and procedures.

Plaintiff sought to introduce four 1998 policies and procedures as being the policies and procedures that were in effect at the time of decedent's treatment in 1996. SCH successfully moved in limine to bar three of the four 1998 policies on the ground of relevance as plaintiff had failed to establish that the 1998 policies were the same as those in existence in 1996. The court allowed introduction of the fourth policy based on testimony that it was probably in existence at the time decedent was hospitalized. Plaintiff unsuccessfully moved for reconsideration.

At trial, Margaret Johnson, R.N., the nurse who triaged and discharged decedent, testified that at the time of discharge decedent was in good condition. He was able to walk, talk, had no skin rash, and subjectively felt better. Johnson stated that it was the nurses' responsibility to check on discharged patients who were in the waiting room waiting for rides home. On cross-examination, Johnson stated that patient care in the waiting room is usually up to the patient. There are no nurses stationed in the waiting room.

Patricia Inch, R.N., testified that she treated decedent in the ER at SCH. Decedent did not exhibit any signs or symptoms of meningococcemia, including the tell-tale sign of skin rash or petechial hemorrhages while in the ER. Decedent's condition improved throughout his stay in the ER. According to Inch, once a patient was discharged the nurses no longer were responsible for him unless the patient brought information to the nurses' attention regarding a change in condition. Nurses had no responsibility to check on a discharged patient in the waiting room.

Daniel Smith, decedent's brother, testified that when he picked up decedent from the waiting room at SCH at 7 a.m., decedent's speech was not normal, he was having difficulty walking, and had red marks on his face and a purplish discoloration just below his cheek and another one under his ear. He described decedent's appearance as scary and alarming, yet he did not speak to anyone at the hospital or get a nurse or doctor to look at decedent.

Dr. Gregory S. Johnston, plaintiff's expert, testified that decedent would not have died if he had been treated with I.V. antibiotics at SCH. Plaintiff's expert witness, Dr. Stephen Sokalski, stated that if decedent had been treated with I.V. antibiotics early in the course of the disease he would have lived. Dr. John Segreti, a defense expert, testified that if I.V. antibiotics had been given at SCH "they would not have been effective in altering the picture and the outcome in this particular patient." Decedent would have died from meningococcemia no matter what was done at SCH.

On October 16, 2001, the jury returned a verdict in favor of defendants. Plaintiff unsuccessfully moved for a new trial.

I

Plaintiff first contends that the circuit court erred in granting defendants' objection to plaintiff's motion to impeach Dr. Abbasi with his prior deposition testimony.¹ According to plaintiff, two of the main issues in the case were whether decedent presented at the ER with symptoms that should have alerted defendants to decedent's septic condition and whether decedent would have lived if he had been given I.V. antibiotics while in the ER. Plaintiff's theory was that decedent would have survived had he been given broad based I.V. antibiotics while in the ER. Plaintiff argues Dr. Abbasi's deposition testimony that decedent would have survived had he been given broad-based I.V. antibiotics while in the ER was relevant to this issue and therefore should have been admissible.

It is appropriate to test the credibility of a witness by demonstrating that on a prior occasion the witness made statements inconsistent with his trial testimony. Schiff v. Friberg, 331 Ill.App.3d 643, 264 Ill.Dec. 813, 771 N.E.2d 517 (2002) (Schiff). To be used for impeachment, a witness' prior statement must be materially inconsistent with his or her trial testimony. Schiff, 331 Ill.App.3d at 656,264 Ill.Dec. 813,771 N.E.2d 517. For deposition testimony to be admissible for impeachment, that testimony must contradict an in-court statement of the witness on a material matter. Preston v. Simmons, 321 Ill.App.3d 789, 254 Ill.Dec. 647, 747 N.E.2d 1059 (2001). Before any impeachment can occur, the witness first must testify at trial in a manner inconsistent with his prior out-of-court testimony. Defendants point out that plaintiff never elicited testimony from Dr. Abbasi that was inconsistent with an earlier out-of-court statement.

The record reveals that plaintiff called Dr. Abbasi as an adverse witness during her case in chief and asked him:

"Q. Now, Doctor, I want to ask you a question. Based upon a reasonable degree of medical certainty, had you started [decedent] on an I.V., the appropriate I.V. antibiotics for a meningeal infection while he was in your emergency room would he have lived?"

Before Dr. Abbasi could answer the court sustained counsel's objection to the question on the basis of relevance. Plaintiff's counsel then requested a sidebar, during which he indicated that Dr. Abbasi had been asked the same question at his deposition.

A transcript of Dr. Abbasi's deposition is not part of the record on appeal. The relevant portion of the deposition was read into the record during the sidebar on this issue:

"Q. Do you have an opinion, Doctor, based upon a reasonable degree of

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