Sullivan v. Edward Hosp.

• Decision Date: 27 November 2002
• Docket Number: No. 2-01-0518.,2-01-0518.
• Parties: Juanita SULLIVAN, Indiv. and as Special Adm'r of the Estate of Burns Sullivan, Deceased, Plaintiff-Appellant, v. EDWARD HOSPITAL and Amelia Conte-Russian, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

781 N.E.2d 649

335 Ill. App.3d 265

269 Ill.Dec. 852

Juanita SULLIVAN, Indiv. and as Special Adm'r of the Estate of Burns Sullivan, Deceased, Plaintiff-Appellant, v. EDWARD HOSPITAL and Amelia Conte-Russian, Defendants-Appellees.

No. 2-01-0518.

Appellate Court of Illinois, Second District.

November 27, 2002.

Stephan D. Blandin, Christopher P. Carr, Romanucci & Blandin, Chicago, Robert G. Black, Maureen Flaherty, Law Offices of Robert G. Black, Naperville, for Estate of Burns Sullivan, Juanita Sullivan, Special Administrator.

David P. Meyer, Susan M. Hannigan, Meyer, Kreuzer, Esp & Cores, Wheaton, for Edward Hospital.

Kevin J. Vedrine, Mark C. Meyer, Cunningham, Meyer & Vedrine, Wheaton, for Amelia Conte-Russian.

Justice BOWMAN delivered the opinion of the court:

On November 6, 1998, Burns Sullivan (now deceased) and his wife, Juanita Sullivan, filed a medical malpractice action against Dr. Amelia Conte-Russian and Edward Hospital. The complaint sought damages for a fall Burns Sullivan (Burns) experienced while residing as a patient at Edward Hospital. Plaintiff asserted that Dr. Conte-Russian and Edward Hospital, through the actions of nurse Carrie Lewis, were negligent in the care and treatment of Burns. Plaintiff also filed a second count claiming Juanita Sullivan suffered loss of consortium as a result of defendants' negligent treatment.

At trial, the court entered a directed verdict for defendant Edward Hospital after plaintiff's only medical expert was ruled incompetent to testify as to the standard of care for the nursing profession. Thereafter, the court entered judgment on a jury verdict in favor of Dr. Conte-Russian.

Plaintiff subsequently appealed both the directed verdict for Edward Hospital and the jury verdict in favor of Dr. Conte-Russian. Plaintiff raises three issues on appeal, asserting that (1) the trial court erred by ruling plaintiff's expert physician witness incompetent to provide standard-of-care testimony regarding the nursing profession, (2) the trial court erred by giving the jury the long-form version of Illinois Pattern Jury Instruction 12.05 (Illinois Pattern Jury Instructions, Civil, No. 12.05 (2000)) on proximate cause, and (3) the jury verdict was against the manifest weight of the evidence.

BACKGROUND

The following evidence was revealed at trial. Dr. Conte-Russian had been the regular treating physician for Burns since 1995 when he suffered a stroke. On November 1, 1997, Burns was admitted to Edward Hospital for treatment of a urinary tract infection. While at Edward Hospital, Dr. Conte-Russian acted as the primary treating physician. Burns's prior history of strokes had left him in a deteriorated physical condition. He could not speak, but he could understand others and respond with physical gestures. Burns's 1995 stroke also resulted in paralysis to his right side and impaired his ability to walk unassisted.

On the evening of November 2, 1997, nurse Carrie Lewis was on duty and acting as Burns's primary nurse. The entire evening Burns had been in his bed. However, on three separate occasions between 7 p.m. and 9:30 p.m., Nurse Lewis found Burns attempting to get out of the bed. After each of the first two instances, nurse Lewis found Burns to be aware and able to understand her instructions to stay in bed. After the third occurrence, nurse Lewis became concerned about Burns's failure to follow instructions and that he now appeared to be agitated. Concerned about Burns's behavior and wanting to take further measures because Burns was considered a fall risk, nurse Lewis phoned Dr. Conte-Russian at 9:30 p.m. and asked the doctor to order a posey vest to restrain Burns to his bed. A posey vest is used to restrain a patient by placing the vest on the patient and then tying the vest straps to the bed.

Dr. Conte-Russian then advised nurse Lewis that a posey vest might result in Burns becoming even more agitated. Instead, the doctor decided to administer the drug Ativan to calm Burns down and help him sleep.

The Ativan, which was administered by nurse Lewis at 10 p.m., was expected to last for a period of at least two hours. Between 10 p.m. and 12 a.m., nurse Lewis and the nurse's aide checked on Burns approximately every half-hour. At about 12:10 a.m., nurse Lewis found Burns lying on the floor of his hospital room with a pool of blood around his head. Apparently, Burns had attempted to get up from his bed and walk. In his condition, he fell and struck his head on the hospital room floor. As a result of the fall, he suffered a subdural hematoma and was subsequently transferred to Northwestern Memorial Hospital.

At trial, the plaintiff attempted to establish the liability of Edward Hospital vicariously through the actions of nurse Lewis. Plaintiff called Dr. William Barnhart to testify as her medical expert. Dr. Barnhart is a board-certified physician specializing in internal medicine and has substantial experience in working with doctors and nurses in patient fall protection. Plaintiff intended for Dr. Barnhart to testify to the applicable standards of care for physicians and nurses and the subsequent failure of both Dr. Conte-Russian and nurse Lewis to meet their respective standards of care.

Dr. Barnhart testified to the standard of care for a licensed nurse and the instances in which nurse Lewis deviated from the standard of care. Those instances included nurse Lewis's failure to properly communicate Burns's condition to Dr. Conte-Russian during their phone conversation and her failure to adhere to proper nursing procedures in the care and treatment of a patient. The court struck the testimony relating to nurse Lewis's communications with Dr. Conte-Russian as a violation of Supreme Court Rule 213(g) (177 Ill.2d R. 213(g)) because Dr. Barnhart's opinions on this issue were not properly disclosed during pretrial discovery. The court then struck the rest of Dr. Barnhart's testimony relating to the nursing standard of care and nurse Lewis's deviations on the grounds that a physician is incompetent to testify to the standard of care placed upon a licensed nurse.

ANALYSIS

I. The Competency of Plaintiff's Physician Expert

Medical malpractice suits require that the plaintiff establish the standard of care through the testimony of a medical expert. Dolan v. Galluzzo, 77 Ill.2d 279, 281, 32 Ill.Dec. 900, 396 N.E.2d 13 (1979). We review de novo the issue of a physician's competency to testify to the standard of care for a nurse. In re Estate of Rennick, 181 Ill.2d 395, 401, 229 Ill.Dec. 939, 692 N.E.2d 1150 (1998).

The general rule in Illinois as originally established by the Illinois Supreme Court in Dolan states that, in order to testify to the standard of care for a particular school of medicine, the expert witness must be licensed within that school of medicine. Dolan, 77 Ill.2d at 285, 32 Ill.Dec. 900, 396 N.E.2d 13. The Dolan court held that an orthopedic surgeon was not competent to testify to the standard of care applicable to a podiatrist because the podiatrist belonged to a unique school of medicine of which the surgeon was not a licensed member. After recognizing that the legislature had provided distinct licensing and regulatory schemes, the court stated:

"We simply are not disposed to provide for what, in effect, may result in a higher standard of care when the legislature, by recognizing various schools of medicine, has not done so. To do so would not only be unfair to podiatrists (i.e., to allow practitioners of other schools to testify regarding the standard of care podiatrists owe), but it would also assume that science and medicine have achieved a universal standard of treatment of disease or injury. Such is not the case." Dolan, 77 Ill.2d at 284, 32 Ill.Dec. 900, 396 N.E.2d 13.

Dolan has subsequently been construed to require an expert physician to meet a two-part test to establish the physician's qualifications and competency to testify. "First, the physician must be a licensed member of the school of medicine about which he proposes to testify. [Citation.] Second, `the expert witness must show that he is familiar with the methods, procedures, and treatments ordinarily observed by other physicians, in either the defendant physician's community or a similar community.'" Jones v. O'Young, 154 Ill.2d 39, 43, 180 Ill.Dec. 330, 607 N.E.2d 224 (1992), quoting Purtill v. Hess, 111 Ill.2d 229, 243, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). If the expert physician fails to meet either of these foundational requirements, the trial court must disallow the testimony. Jones, 154 Ill.2d at 44, 180 Ill.Dec. 330, 607 N.E.2d 224.

The plaintiff in the case at bar cites Wingo v. Rockford Memorial Hospital, 292 Ill.App.3d 896, 226 Ill.Dec. 939, 686 N.E.2d 722 (1997), as an exception to the general rule that a physician must be a licensed member of the same school of medicine to give testimony as an expert. The plaintiff argues that if Wingo is applied to the present facts Dr. Barnhart should be allowed to testify to the standard of care applicable to nurse Lewis. Wingo involved a situation in which three physicians testified that an obstetrical nurse violated the applicable nursing standard of care by failing to properly communicate the condition of a patient to the treating physician. Wingo, 292 Ill. App.3d 896,226 Ill.Dec. 939,686 N.E.2d 722. The physicians opined that the nurse's deviation from the standard of care resulted in a baby being born with brain damage. Wingo, 292 Ill.App.3d at 903,226 Ill.Dec. 939,686 N.E.2d 722.

The court in Wingo found that the rationale presented in Dolan for requiring that an expert physician be a licensed member of the same school of medicine did not apply. Wingo, 292 Ill.App.3d at 906, 226 Ill.Dec. 939, 686 N.E.2d 722. The court determined that the supreme court's concerns regarding the imposition of a higher standard of care and the assurance that the expert physician possess the requisite expertise were not being sacrificed...