Uhr v. Lutheran General Hosp.

Citation589 N.E.2d 723,226 Ill.App.3d 236,168 Ill.Dec. 323
Decision Date26 February 1992
Docket NumberNo. 1-87-3524,1-87-3524
Parties, 168 Ill.Dec. 323 Vicki UHR, individually and as Administrator of the Estate of Laura Uhr, Deceased, and Burton Uhr, Plaintiffs-Appellees, v. LUTHERAN GENERAL HOSPITAL, a not-for-profit corporation, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

A. Denison Weaver, Ltd., William J. Harte, Ltd., Chicago, for plaintiffs-appellees.

Cassiday, Schade & Gloor, Chicago, for defendant-appellant.

Presiding Justice GREIMAN delivered the opinion of the court:

Plaintiffs Vicki Uhr, individually and as administrator of the estate of Laura Uhr, deceased, and Burton Uhr brought this action in the circuit court of Cook County for medical malpractice which resulted in the death of their 13-year-old daughter, Laura.

The jury returned a $1,870,000 general verdict in favor of plaintiffs and against defendant Lutheran General Hospital. The trial court allowed a set-off of $300,000 for settlements made with two doctors, but denied the hospital's post-trial motion and entered judgment on the verdict, as reduced. The hospital now appeals from that judgment.

We filed an opinion in this matter, with a dissent, reversing and remanding for a new trial. Both parties filed motions for rehearing which we allowed.

Upon rehearing, we affirm the judgment of the circuit court of Cook County.

Laura Uhr was operated on at Lutheran General Hospital to remove a cyst from her femur and to graft bone tissue onto the femur. During this operation Laura went into cardiac arrest and died.

Plaintiffs' expert, Dr. Harry Cohen, testified that Laura's death was caused by excessive blood loss during the operation. Plaintiffs' evidence tended to establish that during the operation the anesthesiologist in attendance, Dr. Michael Ronnett, failed to properly monitor Laura's blood loss. Dr. Cohen estimated that Laura lost between 30 and 40 per cent of her blood volume during the operation, yet she was given no blood transfusions until her heart stopped. It was his professional opinion that if this blood had been replaced during the operation, Laura would not have died.

Trial testimony established that a common method of monitoring blood loss during an operation is for the nurses to weigh the surgical sponges used to absorb lost blood. The dry weight of the sponges is subtracted from their weight after use and the resulting blood weight, as well as a running total of the blood loss, is written on tape placed on the wall in a location visible to the anesthesiologist as he works.

The anesthesiologist, Dr. Ronnett, testified that to his recollection the nurses neither weighed the sponges nor did they tell him what they estimated the blood loss to be. He further testified that he estimated the amount of blood loss merely by looking at the sponges as they were used and that he was able to keep track of the 70 sponges used in the operation and to mentally keep a running total of the blood loss. Dr. Ronnett stated that he alone had the responsibility of evaluating blood loss, and he did not pay attention to what the nurses were doing. But when questioned about a notation in a nurse's chart indicating that Laura had lost 1100 ccs of blood at one point in the operation, Dr. Ronnett testified that if he had been told this by one of the nurses during the operation he would have paid attention to that and may have re-evaluated his blood loss estimate.

Defendant's expert nurse, Mary Gilmore, further established the standard of care relating to the weighing of sponges and the communication of blood loss to the anesthesiologist and testified that the failure to weigh sponges and communicate results would be a deviation from the standard of care.

Clearly, the jury could have determined from the testimony of Dr. Ronnett and nurse Mary Gilmore that the nurses had failed to weigh the sponges and had failed to communicate their blood loss estimates to him and that such failure would be a deviation from the standard of care. They could also have concluded that these admissions contributed to Dr. Ronnett's failure to determine that Laura had lost excessive amounts of blood.

The jury also heard Dr. Cohen's expert opinion that the nurses' failure to communicate blood loss results to the anesthesiologist would be a deviation from the standard of care required of them.

Defendant contends that the trial court erred in allowing the expert testimony of Dr. Cohen concerning the failure of the nurses to meet the appropriate standard of care. Defendant filed a motion in limine, prior to trial, requesting that Dr. Cohen be barred from offering at trial any new opinions inconsistent with his deposition testimony. The trial court granted this motion.

In his deposition Dr. Cohen had specifically testified that in his opinion the personnel of the hospital had met the standard of care in treating Laura and that Dr. Ronnett, who he believed was not a hospital employee, had deviated from the standard of care. Thus, defendant urges that the trial court failed to apply Supreme Court Rule 220(d) which provides:

"To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, deposition or requests to produce, his direct testimony at trial may not be inconsistent with nor go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings." 134 Ill.2d R. 220(d).

Rule 220 is intended to enable litigants to ascertain and rely upon the nature of the opinion of their opponent's experts. Bart v. Union Oil Co. of California (1989), 185 Ill.App.3d 64, 132 Ill.Dec. 848, 540 N.E.2d 770; 134 Ill.2d R. 220, Committee Comments.

The purpose of Rule 220 was to end "guerrilla warfare" so common among litigators prior to the adoption of the Rule. The record seems clear that Dr. Cohen was permitted to testify in contradiction to his deposition testimony.

If defendant's liability rested only upon the testimony of Dr. Cohen concerning the negligence of the hospital nurses, we would reverse. However, as we have previously noted there is ample evidence in the record from the testimony of Dr. Ronnett and nurse Gilmore to establish such liability.

Defendant relies on a Second District case which barred testimony of an undisclosed expert witness. (Phelps v. O'Malley (1987), 159 Ill.App.3d 214, 110 Ill.Dec. 797, 511 N.E.2d 974.) In Phelps, the plaintiffs' expert witness, a real estate appraiser, had been retained by the plaintiffs 14 months prior to trial but not disclosed to the defendant until trial. This expert's testimony was essential to proof of the plaintiffs' damages and a deposition during trial was not sufficient to cure the Rule 220(b) violation (134 Ill.2d R. 220(b)).

In Bart v. Union Oil Co., 185 Ill.App.3d 64, 132 Ill.Dec. 848, 540 N.E.2d 770, the Third District held that the testimony of the coroner's pathologist was improperly admitted in violation of Rule 220(d) because paragraph (d) limits the permissible scope of an expert's testimony to those opinions expressed in discovery. The decedent in Bart had died in a fire in defendant's oil refinery. Two explosions had occurred before decedent's body was found. The jury verdict included monetary damages for conscious pain and suffering. In his deposition prior to trial, the pathologist stated that he could not give an opinion as to whether or not the decedent had suffered any conscious pain and suffering. At trial, the pathologist testified that the decedent may have survived the first explosion and suffered pain prior to his death. The court found that the inconsistency between the pathologist's deposition and trial testimony violated Rule 220(d) and required reversal.

Unlike the case at bar where there is ample additional evidence which will support a verdict, the favorable verdicts in Phelps and Bart rested solely upon the testimony of the respective experts.

The original complaint filed by plaintiffs in this case contained only one count relating to the possible liability of Lutheran General. This count sought recovery for negligence of the hospital staff in connection with the preoperative work-up of the decedent and provision for adequate supply of blood in the surgical suite. On the day after the case was assigned for trial, plaintiffs entered into settlement agreements with the two remaining physician defendants in the case and then sought to amend their complaint against Lutheran General to plead for the first time the claim against the hospital based on vicarious liability theories of actual and apparent agency for the acts of the anesthesiologist, Dr. Ronnett.

Section 2-616 of the Code of Civil Procedure allows amendment within the discretion of the court "at any time before final judgment * * * on just and reasonable terms * * * adding new causes of action * * * either of form or substance." Ill.Rev.Stat.1985, ch. 110, par. 2-616.

The trial court allowed the filing of the amended complaint. The liability of Dr. Ronnett had been raised as an issue by other counts in the complaint during the pendency of this action and this defendant had an opportunity to participate in all of the discovery relative to Dr. Ronnett's individual liability. The introduction of these two new legal theories did not alter the nature or quality of the proof to properly defend the case.

Although the addition of agency issues might change the focus of the litigation, it cannot be said that defendant was surprised or that evidence which it did not previously have in its possession relating to the agency theories would be difficult to acquire. Trident Industrial Products Corp. v. American National Bank and Trust Co. (1986), 149 Ill.App.3d 857, 103 Ill.Dec. 252, 501 N.E.2d 273 (this court found...

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