Find Legal Information

FIRST DIVISION

November 23, 1998

No. 1-97-4661

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff, Eva Adami, filed a medical malpractice action against defendants John V.Belmonte,Jr., JVB Medical Associates, Ltd., and Gottlieb Memorial Hospital. Plaintiff alleged that whileperforming surgery to remove her gallbladder, Doctor Belmonte (an agent of JVB MedicalAssociates) and his assistant, Doctor Guillermo Lara (an employee and agent of GottliebHospital), perforated her small intestine, causing her numerous complications. The jury foundfor defendants, and the trial court denied plaintiff's posttrial motion. Plaintiff appeals,contending: (1) the jury's verdict was against the manifest weight of the evidence; (2) the trialcourt erred in barring plaintiff from calling Gottlieb Hospital's retained expert during her case inchief; (3) the trial court failed to properly instruct the jury; (4) the trial court erred in barringplaintiff from commenting during closing arguments on Gottlieb Hospital's failure to call itsexpert to testify; and (5) counsel for Gottlieb Hospital asked an improper question of plaintiff'sexpert witness. We affirm.

In 1991, plaintiff was diagnosed with gallstones and referred to Doctor Belmonte. DoctorBelmonte examined plaintiff, then told her she needed surgery to remove her gallbladder. DoctorBelmonte informed plaintiff there were two types of gallbladder surgeries he could perform onher, an "open procedure" or a "closed procedure." In an open procedure, Doctor Belmonte wouldoperate through an 8 -to 14 - inch incision in plaintiff's belly; in a closed procedure, DoctorBelmonte would operate through several smaller incisions in the belly. Plaintiff agreed to letDoctor Belmonte decide which procedure to use.

On November 5, 1991, Doctor Belmonte performed the closed procedure on plaintiff atGottliebHospital. Plaintiff developed complications and underwent a second surgery a few days later. Plaintiff testified that Doctor Belmonte told her the second surgery was to fix her small intestine,which he had cut during her November 5 operation.

Doctor Belmonte testified that Doctor Guillermo Lara assisted him in the November 5surgery. Doctor Belmonte testified that Doctor Lara did not do any incising or cutting during plaintiff'ssurgery. However, Doctor Belmonte admitted stating in his pretrial deposition that "Doctor Laraassisted *** in the role of a cosurgeon. The role of a cosurgeon is to provide exposure, to assistor control bleeding, and this entails clipping [and] cutting."

Doctor Belmonte testified he saw plaintiff the next day, November 6, and that she wasnauseousand had diminished urine output. Doctor Belmonte then went away on a trip. He returned onNovember 9 and learned that, while he was away, doctors at Gottlieb Hospital had run tests onplaintiff that showed a perforation of her small intestine. On November 12, Doctor Belmonteoperated on plaintiff to repair the perforation.

Post-operatively, plaintiff developed a blood infection, renal failure, inflammation in thelining ofher abdomen, and aggravation of her diabetes. The perforation and resulting complicationsnecessitated a 10-week hospital stay.

Doctor Belmonte testified he did not perforate plaintiff's small intestine during thegallbladdersurgery. He also denied telling plaintiff or any of her family members that he had cut the smallintestine. Doctor Belmonte testified that plaintiff had preexisting ulcer disease that likelyweakened her bowel wall and caused the perforation.

Doctor Lara testified he assisted Doctor Belmonte during plaintiff's gallbladder operation onNovember 5. Doctor Lara's role in the operation was to use two instruments (graspers) to holdand retract the gallbladder so that Doctor Belmonte could excise it. Doctor Lara testified that hisinstruments came nowhere near plaintiff's small intestine; however, Doctor Lara also testifiedthat he "can't say" whether or not he touched plaintiff's small intestine during her surgery.

Plaintiff's expert witness, Doctor Stephen Goldstone, testified he had read the operativereportand viewed a videotape of plaintiff's November 5 gallbladder operation. Doctor Goldstoneopined that the injury to plaintiff's small intestine occurred during the gallbladder surgery "whileDoctor Lara and [Doctor] Belmonte were using instruments and manipulating the [smallintestine]." Doctor Goldstone opined that the injury would not have occurred if Doctor Belmonteand Doctor Lara had used ordinary care while using the instruments under their control. DoctorGoldstone also opined that Doctor Belmonte violated the standard of care when he failed toconvert from a closed procedure to an open procedure, failed to timely discover the perforationand failed to promptly reoperate on plaintiff.

On cross-examination, Doctor Goldstone testified he did not know when the injury occurred;hestated that the actual perforation might have occurred during the surgery or a few hours later dueto trauma during the surgery. Doctor Goldstone stated he did not know which instrumentsDoctor Lara had handled during the surgery. Doctor Goldstone agreed that Doctor Lara did notviolate the standard of care if he merely positioned the gallbladder while Doctor Belmonte did allthe incising and cutting.

Doctor Goldstone also stated that a perforation of the small intestine can occur duringgallbladdersurgery even in the absence of negligence.

Doctor Belmonte's expert witness, Doctor Anthony Altimari, testified he reviewed plaintiff'shospital records and the videotape of plaintiff's November 5 gallbladder operation. DoctorAltimari testified neither Doctor Belmonte nor Doctor Lara violated the standard of care duringthe surgery. Doctor Altimari stated that the perforation in plaintiff's small intestine perhapsresulted from a preexisting ulcer. Doctor Altimari also opined that Doctor Belmonte did notviolate the standard of care by failing to convert to an open procedure or by waiting untilNovember 11 to reoperate.

The jury found for defendants and the trial court denied plaintiff's posttrial motion. Plaintifffiledthis timely appeal.

First, plaintiff argues the jury's verdict was against the manifest weight of the evidence. Ajudgment is against the manifest weight of the evidence when the opposite conclusion is evidentor when the findings are unreasonable, arbitrary or not based on the evidence. Rhodes v.IllinoisCentral Gulf R.R., 172 Ill. 2d 213, 242 (1996).

Plaintiff argues the jury's verdict was contrary to the "undisputed fact" that plaintiff's smallintestine was perforated during the gallbladder surgery performed by Doctor Belmonte andDoctor Lara. However, both expert witnesses in this case acknowledged that such a perforationcan happen even in the absence of negligence. Doctor Altimari also agreed with DoctorBelmonte that plaintiff's injury could have resulted from a preexisting ulcer. Further, DoctorAltimari testified he read plaintiff's medical records and viewed a videotape of the operation, andin his opinion, neither Doctor Belmonte nor Doctor Lara violated the standard of care. AlthoughDoctor Goldstone provided contrary testimony, the jury obviously found Doctor Altimari to bethe more credible witness. We will not substitute our judgment for the jury's credibilitydeterminations. People v. Goosens, 262 Ill. App. 3d 722, 728 (1994).

Next, plaintiff argues the trial court erred by barring Gottlieb Hospital's expert witness,DoctorDeziel, from testifying in plaintiff's case. For the reasons that follow, we find no abuse ofdiscretion by the trial court.

On September 28, 1996, Gottlieb Hospital filed answers to plaintiff's interrogatories namingDoctor Deziel as its expert. Gottlieb Hospital stated it would call Doctor Deziel to testify he hadreviewed the videotape of the surgery and in his opinion Doctor Lara (Gottlieb Hospital's agent)did not deviate from the standard of care. On March 7, 1997, Doctor Deziel testified in hisevidence deposition that plaintiff's small intestine was traumatized multiple times by instrumentsmanipulated by Doctor Belmonte, not Doctor Lara, during her gallbladder surgery.

Two weeks before trial, by a letter dated April 16, 1997, plaintiff's counsel identified DoctorDeziel as an opinion witness plaintiff might call at trial. On April 28, 1997, plaintiff's counselcaused a trial subpoena to be served on Doctor Deziel.

On May 7, 1997, Gottlieb Hospital filed a motion to quash the trial subpoena on DoctorDezielbecause plaintiff did not timely name him under Supreme Court Rule 213 (166 Ill 2d R. 213). Doctor Belmonte also filed a motion to bar the testimony of Doctor Deziel in plaintiff's case inchief. The trial court determined that the disclosure of Doctor Deziel as an expert witness forplaintiff was untimely and quashed the subpoena.

The trial court correctly determined that plaintiff's disclosure was untimely. Supreme CourtRule213(g) states "that [a]n opinion witness is a person who will offer any opinion testimony." 166Ill. 2d R. 213(g). The committee comments to the rule (166 Ill. 2d R. 213, CommitteeComments) provide that, "in order to avoid surprise, the subject matter of all opinions must bedisclosed pursuant to this rule and Supreme Court Rule 218." Supreme Court Rule 218(c)provides "[a]ll dates set for the disclosure of opinion witnesses and the completion of discoveryshall be chosen to ensure that discovery will be completed not later than 60 days before the dateon which the trial court reasonably anticipates the trial will commence." 166 Ill. 2d R.218(c).

Doctor Deziel was an opinion witness. By failing to disclose him until two weeks beforetrial,plaintiff violated Supreme Court Rules 213 and 218, which are mandatory rules ofprocedure. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537 (1998).

Plaintiff argues that defendants waived the right to bar Doctor Deziel from testifying bywaitinguntil the first day of trial before raising the Rule 213 violation. In support, plaintiff citesKosinskiv. Inland Steel Co., 192 Ill. App. 3d 1017 (1989), and SPSS, Inc. v.Carnahan-Walsh, 267 Ill.App. 3d 586 (1994.) In Kosinski, defendant waited until the first day of trial beforefiling amotion to bar plaintiff's expert from testifying because of plaintiff's failure to seasonably identifythe expert in violation of Supreme Court Rule 220 (134 Ill. 2d R. 220) then in effect. Kosinski,192 Ill. App. 3d at 1025. Since defendant had been aware for more than a month that plaintiffintended to call the expert, the trial court decline to enter an order excluding the testimony. Kosinski, 192 Ill. App. 3d at 1025. Instead, at the trial court's suggestion,defendant interviewedthe expert prior to his taking the stand. Thereafter, when the expert was called to testify,defendant made no objections. Kosinski, 192 Ill. App. 3d at 1025.

On appeal, defendant argued the trial court erred in denying its motion to bar the expert fromtestifying. Kosinski, 192 Ill. App. 3d at 1025. The appellate court disagreed,noting thatdefendant acquiesced in the trial court's arrangement that defendant question the expert prior totrial and inform the trial court if it found such questioning insufficient to present its defense attrial. Kosinski, 192 Ill. App. 3d at 1025-26. The appellate court held "[a] partycannot claim errorin a trial court's ruling when the party has acquiesced in that disposition." Kosinski, 192 Ill. App.3d at 1026.

In SPSS, the trial court held a hearing on April 20, 1992, at which it set thetrial commencementdate for June 1, 1992. SPSS, 267 Ill. App. 3d at 593. Although plaintiff wasapparently aware ofRule 220 violations by defendants' experts, plaintiff failed to raise those objections during theApril 20 hearing, nor did it object to the June 1 trial date. On the first day of trial, plaintiff raisedthe Rule 220 violations. SPSS, 267 Ill. App. 3d at 593. CitingKosinski, the appellate court heldthat plaintiff waived the issue by waiting until the day of trial to make its Rule 220 objections. SPSS, 267 Ill. App. 3d at 593.

Kosinski and SPSS are inapposite. UnlikeKosinski, the trial court in the present case made noruling to which defendants acquiesced in lieu of raising the Rule 220 violations. UnlikeSPSS,the trial court set the trial date prior to plaintiff disclosing Doctor Deziel as its expert witness.

In further contrast to Kosinski and SPSS, in which thecomplaining parties waited more than amonth before objecting to the experts' testimony, Gottlieb Hospital filed its motion to quashplaintiff's subpoena only about one week after the subpoena was served on Doctor Deziel. Accordingly, Gottlieb Hospital's motion was not so untimely as to result in waiver.

Plaintiff next argues that Gottlieb Hospital and Doctor Belmonte knew of Doctor Deziel'sopinions as early as September 1996, and therefore they were not prejudiced by plaintiff's failureto disclose Doctor Deziel until April 1997. Plaintiff contends that, in the absence of anyprejudice, Doctor Deziel should have been allowed to testify.

In support, plaintiff again cites SPSS. In SPSS, plaintiff raisedRule 220 objections to defendant'sexperts, Cohn and Walsh, on the first day of trial. SPSS, 267 Ill. App. 3d at 593. The appellatecourt held that the trial court did not err in allowing defendant's experts to testify in the absenceof any showing that plaintiff suffered any prejudice from the Rule 220 violation. SPSS, 267 Ill.App. 3d at 593. In particular, the appellate court noted that the trial court granted a month and ahalf break in the trial so that plaintiff would have ample opportunity to prepare for Cohn'stestimony. SPSS, 267 Ill. App. 3d at 593. The appellate court also noted thatplaintiff was notprejudiced by Walsh's testimony, since the trial court stated it gave no value to Walsh's testimonyas an expert. SPSS, 267 Ill. App. 3d at 593.

By contrast, the late disclosure of Doctor Deziel would have prejudiced Doctor Belmonte. Doctor Deziel opined that plaintiff's small intestine had been traumatized by instrumentsmanipulated by Doctor Belmonte during her gallbladder surgery. Doctor Belmonte indicates thatalthough he knew of Doctor Deziel's opinion as early as September 1996, he made no effort tofind a rebuttal expert because he determined that neither plaintiff nor defendants would callDoctor Deziel to testify. Doctor Belmonte relied on plaintiff's failure to disclose Doctor Dezielas an opinion witness within Rule 213's timeframe and determined that plaintiff would not callDoctor Deziel to the stand. Two weeks before trial, though, plaintiff informed Doctor Belmontethat she intended to call Doctor Deziel in her case in chief. The lateness of the disclosureprecluded any reasonable chance for Doctor Belmonte to find an expert to refute Doctor Deziel'stestimony. Accordingly, the trial court did not abuse its discretion by barring Doctor Dezielfrom testifying.

SPSS is also inapposite because it was interpreting Rule 220, which has sincebeen repealed byorder of June 1, 1995. The standards governing disclosure of opinion witnesses are now set forthin Rule 213. As we stated in Department of Transportation v. Crull, 294 Ill. App.3d at 538-39:

"Rule 213 establishes more exacting standards regarding disclosure than didSupremeCourt Rule 220 *** which formerly governed expert witnesses. Trial courts should bemore reluctant under Rule 213 than they were under former Rule 220 (1) to permit theparties to deviate from the strict disclosure requirements, or (2) not to impose severesanctions when such deviations occur. Indeed, we believe one of the reasons for new Rule213 was the need to require stricter adherence to disclosure requirements."

Given this stricter standard of compliance, the trial court did not abuse its discretion bybarringplaintiff from calling an opinion witness (Doctor Deziel) identified only two weeks before trial inviolation of Rule 213.

Next, plaintiff argues the trial court erred by failing to give Illinois Pattern Jury Instructions,Civil, No. 5.01 (3d ed. 1995)(hereinafter IPI Civil 3d No. 5.01), in connection with GottliebHospital's failure to call its expert witness, Doctor Deziel, to the stand. IPI Civil 3d No. 5.01informs the jury that if a party fails to produce a witness whom the party has the power toproduce, the jury may infer that the witness' testimony would be adverse to that party. Plaintiffcontends the trial court should have given IPI Civil 3d No. 5.01 to allow the jury to infer thatDoctor Deziel's testimony would have been adverse to Gottlieb Hospital.

IPI Civil 3d No. 5.01 (sometimes referred to herein as the "missing witness instruction") isavailable when: (1) the witness was under the control of the party against whom the instructionis offered and could have been produced by reasonable diligence; (2) the witness was not equallyavailable to the adverse party; (3) a reasonably prudent person would have produced the witnessif she believed the testimony would be favorable to her; and (4) no reasonable excuse for thefailure to produce the witness has been shown. Wilkerson v. Pittsburgh CorningCorp., 276 Ill.App. 3d 1023, 1028 (1995).

Doctor Deziel testified in his evidence deposition that Doctor Belmonte, not Doctor Lara,perforated plaintiff's small intestine. Far from being an adverse witness, Doctor Deziel wasactually a favorable witness for Gottlieb Hospital, since he exonerated Doctor Lara (GottliebHospital's agent) of negligence. On that basis alone, the adverse inference allowed under IPICivil 3d No. 5.01 was not warranted, and the trial court therefore did not abuse its discretion byrefusing to give the missing witness instruction.

Gottlieb Hospital also argues that it did not want to prolong the trial by calling DoctorDeziel,whose testimony would have been largely cumulative to Doctor Altimari's testimony that DoctorLara did not violate the standard of care. Where, as here, the witness' testimony would becumulative of facts already established and/or would unduly prolong the trial, the missingwitness instruction is not warranted. Wilkerson, 276 Ill. App. 3d at 1029;Glassman v. St. JosephHospital, 259 Ill. App. 3d 730, 762 (1994).

Taylor v. Kohli, 162 Ill. 2d 91 (1994), cited by plaintiff, does not compel adifferent result. InTaylor, the trial court gave the missing witness instruction regarding plaintiff'sfailure to call hisexpert witness, Doctor Koman. Taylor, 162 Ill. 2d at 94. On appeal, plaintiffargued that theinstruction was inappropriate because he had abandoned Doctor Koman as his expert 19 monthsprior to trial. Taylor, 162 Ill. 2d at 94. Our supreme court held that a party mayavoid themissing witness instruction by giving reasonable notice prior to trial of the abandonment of hisexpert witness. Taylor, 162 Ill. 2d at 98.

In the present case, plaintiff argues that the trial court should have given the missing witnessinstruction because Gottlieb Hospital never notified her of its intention to abandon Doctor Dezielas its expert. We disagree. Taylor does not hold that reasonable notification of theabandonmentof an expert witness is the only way to avoid the missing witness instruction. That instructionmay still be avoided where, as here, the witness in question was not adverse to the party whocontrolled him and the party has a reasonable excuse for failing to produce the witness.

Next, plaintiff claims the trial court erred by barring her from commenting during closingarguments about Gottlieb Hospital's failure to call Doctor Deziel as a witness. As discussedabove, no adverse inference should have been drawn from Gottlieb Hospital's failure to callDoctor Deziel to testify; therefore, the trial court properly barred plaintiff from commentingthereon during closing arguments.

Plaintiff also argues the trial court erred by barring her from commenting about GottliebHospital's failure to call plaintiff's other treating physicians. Plaintiff waived this argument, asshe cites only the portion of the record in which the trial court barred plaintiff from commentingon Doctor Deziel's failure to testify; she cites no part of the record showing that the trial courtbarred her from commenting on the failure of the other treating physicians to appear. See 155 Ill.2d R. 341(e)(7); Voutiritsas v. Intercounty Title Co., 279 Ill. App. 3d 170, 187(1996)(failure tocite to relevant portion of record constitutes waiver.)

Next, plaintiff argues the trial court erred when it failed to instruct the jury that DoctorBelmontemust use the skill and care ordinarily used by a reasonably well-qualified specialist "practicing inthe same or similar localities" or "practicing under a national standard of [minimum] care." Wefind no error. The appropriate jury instruction on the standard of care is Illinois Pattern JuryInstructions, Civil, No. 105.02 (3d ed. 1995)(hereinafter IPI Civil 3d No. 105.02), whichprovides:

"A [physician] who holds himself out as a specialist and provides service inhis specialtymust possess and apply the knowledge and use the skill and care ordinarily used by areasonably well-qualified specialist [practicing in the same or similar localities] undercircumstances similar to those shown by the evidence. A failure to do so is professionalnegligence."

Where the national standard of minimal care is the same as the local standard, the trial courtmaydelete the bracketed phrase "practicing in the same or similar localities." See IPI Civil 3d No.105.02, Notes on Use, citing Purtill v. Hess, 111 Ill. 2d 229 (1986), andKarsten v. McCray, 157Ill. App. 3d 1 (1987). In the present case, there was no evidence showing that the nationalstandard of minimal care differed from the local standard, so the trial court gave IPI Civil 3d No.105.02 without the bracketed portion. The trial court did not abuse its discretion in sodoing.

Next, plaintiff argues counsel for Gottlieb Hospital improperly questioned plaintiff's expert,Doctor Goldstone. Specifically, plaintiff complains about the following exchange:

"Q. Did they (plaintiff's attorneys) explain to you that they had five of theircomplaintsdismissed as to Gottlieb?

MR. CONCANNON [Plaintiff's counsel]: Objection.

THE COURT: Sustain the objection. The jury will disregard that, counsel."

Plaintiff argues that counsel's question was irrelevant and prejudiced her in the eyes of thejuryby implying that she had brought a frivolous case against Gottlieb Hospital. However, as citedabove, the trial court sustained plaintiff's objection to the question and instructed the jury todisregard. Later in the proceedings, the court further instructed the jury:

"In the cross-examination by the attorney for Gottlieb Memorial Hospital,he asked thequestion which I asked you to disregard. It's very hard to disregard an improper questionthat you hear. If you recall, that question referred to the plaintiff amending [her] complaintseveral times in the course of this lawsuit. That's totally improper as a question for thisreason: A pleading may be amended at any time before, during and even after the trial isover [and] on such terms that are reasonable and just. The fact that an attorney hasamended [her] complaint has no bearing on this case. Do you understand that, ladies andgentlemen? Let's proceed with the redirect examination."

The trial judge cured any prejudice by promptly sustaining plaintiff's objection and givingthedetailed instruction to disregard. See Dahan v. UHS of Bethesda, Inc., 295 Ill.App. 3d 770, 780(1998).

For the foregoing reasons, we affirm the trial court.

Affirmed.

GALLAGHER and O. FROSSARD, J.J.'s concur.