Find Legal Information

FOURTH DIVISION|
June 30, 2004

Pauline Garley died from a pulmonary embolism three daysafter undergoing several abdominal surgeries at LaGrange MemorialHospital (Hospital). Her husband, plaintiff Stephen Garley,filed a wrongful death suit against the Hospital, based upon theconduct of its nursing staff in caring for Mrs. Garley bothduring and after surgery; numerous doctors involved in hersurgery and postsurgical care, including Drs. Scott Multack,Carla Mitchell, Joan Cardone, and Joseph Reda; and two healthcarecorporations. Prior to trial, Drs. Cardone and Reda, as well asthe healthcare corporations, were voluntarily dismissed asdefendants. After a jury trial, the Hospital and Dr. Multackwere found liable for Mrs. Garley's death. The Hospital filed amotion for judgment n.o.v., which the circuit court denied. Onappeal, the Hospital argues that the circuit court erred indenying its motion for judgment n.o.v. because plaintiff'sexperts were not competent to testify as to the applicablenursing standard of care. For the following reasons, we reverseand remand with instructions.

BACKGROUND

On the morning of April 28, 1998, Pauline Garley wasadmitted to the Hospital, where she was to undergo severalabdominal surgeries lasting approximately three hours. Thesurgeries were to be performed by Dr. Scott Multack, who was tobe assisted by Dr. Carla Mitchell and Dr. Joan Cardone. At 9:40a.m., Nurse Nancy Nowak brought Mrs. Garley into the operatingroom and, pursuant to Dr. Multack's request, positioned her inthe lithotomy position (on her back with her legs elevated andseparated) with the use of knee crutches. Though the length ofthe surgery, her weight, and her age placed Mrs. Garley at riskfor developing a deep vein thrombus (DVT) or blood clot, noanticlotting device or medication was utilized or suggestedduring surgery. After surgery was completed at 1:30 p.m., Dr.Multack ordered that Mrs. Garley be "ambulated with assistance"to decrease the risk that a DVT might develop. According tohospital records, Nurse Karol Meier unsuccessfully attempted towalk Mrs. Garley at 4:36 p.m., approximately three hours aftersurgery. Mrs. Garley was not ambulated on April 28.

At approximately 11 a.m., on April 29, Mrs. Garley waswalked for the first time to a chair in her hospital room. Later, at 2:17 p.m., she was walked an undisclosed distance withthe use of a walker. At 7:19 p.m., she was walked a distance of0 to 10 feet, but could not tolerate any further ambulation.

On April 30, at approximately 4 p.m., Mrs. Garley againambulated from 0 to 10 feet. At 8:33 p.m., while Nurse LindaTrotta was ambulating her, Mrs. Garley collapsed and died shortlythereafter.

At trial, Dr. Mitra Kalelkar, a forensic pathologist andassistant medical examiner for Cook County, testified that Mrs.Garley died of a pulmonary embolism. She testified that Mrs.Garley developed a DVT, which dislodged and traveled through herbloodstream, blocking her pulmonary arteries. Based upon herfinding that Mrs. Garley's left thigh and calf were larger thanher right thigh and calf, she believed the DVT developed in herlower left extremity. She could not determine, however, when theclot formed or whether the clot formed above or below her knee. She also testified that she did not believe that the DVT formedin Mrs. Garley's pelvis because "no pelvic veins werethrombosed."

Dr. Carla Mitchell testified that she examined Mrs. Garleyon April 29, the day after the surgery, and that Mrs. Garleyexhibited no symptoms of DVT. Mrs. Garley also did not complainof leg pain during the examination. Dr. Mitchell stated that,per Dr. Mutlack's order, the nurses were supposed to ambulateMrs. Garley as soon as possible and, at a minimum, 3 times every24 hours. The nursing staff did not inform her that Mrs. Garleyhad not yet been ambulated. Dr. Mitchell testified that had Mrs.Garley exhibited symptoms of DVT, there were methods andtreatments available to reduce the risk of an embolism.

Dr. Multack testified that he expected the nurses toambulate Mrs. Garley a few hours after surgery, as soon as shewas "up and alert." He testified that she was to be walked "evenif that meant waking her up" and that he expected her to walkunassisted by April 30. When he saw Mrs. Garley on April 30 at5:10 p.m., she did not complain of leg pain. He stated that hewas never informed that Mrs. Garley had complained of leg pain orthat she was having difficulty ambulating. He testified that hadshe been ambulated in accordance with his order, the likelihoodof a DVT forming would have decreased and that the failure to doso increased the risk of a pulmonary embolism. He also testifiedthat a number of treatment options were available had he beeninformed of Mrs. Garley's complaints of leg pain.

Nurse Karol Meier testified that she was working the 3 p.m.to 11 p.m. shift on April 28. She testified that she understoodDr. Multack's order to "ambulate with assist" to mean that Mrs.Garley was to be ambulated as soon as possible, but no later than12 to 18 hours after surgery, i.e. between 1:30 a.m. and 7:30a.m. on April 29. She testified that if a doctor's order is notbeing followed, unclear, or cannot be carried out, the doctorshould be notified. However, according to Mrs. Garley's chart,she was not exhibiting any symptoms consistent with the presenceof a DVT and had not complained of leg pain.

Annette Colbert, a patient care technician, testified thatshe attended to Mrs. Garley on April 29 and 30. She testifiedthat Mrs. Garley complained of leg pain while she was beingambulated and that she (Ms. Cobert) relayed these complaints toNurse Mary Kiser.

Plaintiff testified that Ms. Colbert called him at work totell him that his wife was sick, having trouble walking, andexperiencing pain in her legs. When plaintiff arrived at thehospital, his wife complained to him of leg pain. Plaintiff didnot remember which day Ms. Colbert called him.

Nurses Mary Kiser, Linda Trotta, Jane Shepski, and ShawndraFerrell testified that they attended to Mrs. Garley during herthree-day stay at the Hospital. They testified that she did notexhibit any signs consistent with the presence of a DVT orcomplain to them about pain in her legs. While hospital recordsindicated that Mrs. Garley complained of abdominal pain, therewas no record of her complaining of pain in her legs. NurseKiser also testified that she did not remember Ms. Colberttelling her that Mrs. Garley had complained of leg pain.

Three experts testified on behalf of plaintiff, none of whomwere licensed nurses.

Dr. Charles Bird, a board-certified obstetrician-gynecologist, had practiced medicine for 31 years aftergraduating from Northwestern University Medical School. Dr. Birdwas the chief of gynecology at Evanston Hospital and taughtthird-year medical students at his alma mater.

He testified that Mrs. Garley died as a result of a bloodclot. He characterized Mrs. Garley as having a moderate risk ofdeveloping such a clot based upon her age and weight and thelength of the surgery. Dr. Bird testified that, based upon hisexperience working with nurses, he was familiar with "thestandard of care applicable to nurses who perform postoperativecare on patients who have undergone surgeries" similar to thoseperformed on Mrs. Garley. He stated that, because noanticlotting measures were utilized during surgery, she shouldhave been ambulated within 12 hours of surgery. He testifiedthat the Hospital nursing staff fell below the standard of carewhen they failed to ambulate Mrs. Garley in a timely fashion andthat their failure to do so contributed to her death.

During cross-examination, Dr. Bird stated that he had noopinion as to whether Mrs. Garley would have survived had shebeen ambulated, but testified on redirect examination that it wasmore probable than not that anticlotting devices or measures,including ambulation, would have prevented her death. Dr. Birdalso testified that the nurses should have followed up Mrs.Garley's complaints of leg pain to Ms. Colbert by examining herlegs, but they were not required to inform her doctor of thosecomplaints.

Dr. Fred Duboe, also an obstetrician-gynecologist, performedhis residency at Northwestern after receiving his medical degreefrom the University of Illinois at Chicago (UIC) in 1980. Duringhis 22 years of continuous practice, Dr. Duboe published severalscholarly articles relating to blood clots and taught bothresidents and nurses. Dr. Duboe had also married a nurse andoccasionally read her Nursing Spectrums, a nursing periodical.

He testified that Mrs. Garley died as a result of a DVTwhich developed some time after surgery. He stated that, basedupon his experience working with nurses, the nurses' conduct incaring for Mrs. Garley did not meet the requisite standard ofcare because they failed to appropriately and timely ambulateMrs. Garley. He testified that the nurses should have walked hera distance of about 60 feet within 12 to 18 hours after surgery. Moreover, if the nurses were not able to ambulate her by thattime, i.e., by 7:30 a.m. on April 29, the nurses should havecalled her doctor for further instruction and advice. Hetestified that the nurses' failure to ambulate Mrs. Garley in atimely fashion contributed to the formation of the blood clotwhich led to her death.

Dr. Duboe testified that the nurses also failed to properlyrespond to Mrs. Garley's complaints of leg pain, which, hestated, should have been relayed to the doctors. Dr. Duboetestified that the nurses' failure to properly respond to hercomplaints of leg pain hindered the possible diagnosis of a DVT,which also contributed to her death.

Dr. Richard Vasquez, a general surgeon, graduated from UICmedical school in 1969. After graduation, he worked as a generalsurgeon at Northwestern Memorial Hospital, published severalarticles, and taught residents in general surgery. He statedthat he also taught nurses and worked with "nursing vice-presidents" at Northwestern "in the formation of guides as towhat nurses are supposed to do."

He testified that Nurse Nowak's conduct before and duringsurgery fell below the applicable standard of care because shefailed to suggest to Dr. Multack that he utilize anticlottingdevices during surgery. He testified that he did not know whenthe DVT formed, but that the failure to employ anticlottingdevices "set the ball rolling toward [the development of a] DVTand pulmonary embolus."

During cross-examination, Dr. Vazquez testified that NurseNowak could defer to Dr. Multack's request as to how Mrs. Garleywas to be positioned for surgery. He testified that,statistically speaking, the blood clot most likely developed inthe veins of Mrs. Garley's pelvis. He also testified that Mrs.Garley might have died even if she had been ambulated on April28. On redirect examination, Dr. Vazquez stated that it was moreprobable than not that Mrs. Garley would have survived had someanticlotting device been used during surgery.

Dr. James Schuler, a vascular surgeon, testified on behalfof the Hospital. Dr. Schuler testified that he believed theblood clot formed in Mrs. Garley's pelvis during surgery. Due tothe location of the blood clot, Dr. Schuler testified that noamount of postsurgical ambulation would have prevented Mrs.Garley's death. Dr. Schuler could not rule out the possibilitythat the blood clot formed in Mrs. Garley's legs, however, and HEstated that the lack of ambulation after surgery "probablycontributed in a very small degree" to an expansion of the bloodclot.

Jacqueline Medland, a registered nurse, also testified onbehalf of the Hospital. Ms. Medland testified that she wasemployed as an administrator at Northwestern Memorial Hospitaland that she taught postsurgical patient care to nurses. Shetestified that Dr. Multack's order to ambulate with assistancerequired the nurses to walk Mrs. Garley as soon as she was ableto tolerate it, but no later than 24 hours after surgery. Shetestified that the nursing staff met the standard of care bywalking Mrs. Garley to a chair in her room at approximately 11a.m. on April 29. She also testified that Mrs. Garley displayedno symptoms consistent with the presence of a DVT.

Based upon the testimony of plaintiff's experts, the jurywas instructed on five theories as to how the Hospital's nursingstaff negligently cared for Mrs. Garley: (1) failing to ambulateher in an appropriate and timely manner; (2) failing to notifyher physicians of her complaints of pain; (3) failing to notifyher physicians of her lack of ambulation; (4) failing to useAllen stirrups in positioning her for surgery; and (5) failing tosuggest the use of anticlotting devices during surgery. The juryreturned a general verdict of liability against the Hospital andDr. Multack.

STANDARD OF REVIEW

"'[V]erdicts ought to be directed and judgments n.o.v.entered only in those cases in which all of the evidence, whenviewed in its aspect most favorable to the opponent, sooverwhelmingly favors movant that no contrary verdict based onthat evidence could ever stand.'" Zabinsky v. Gelber Group, Inc.,347 Ill. App. 3d 243, 248 (2004), quoting Pedrick v. Peoria &Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). Inruling on a motion for a judgment notwithstanding the verdict, acourt does not weigh the evidence, nor is it concerned with thecredibility of the witnesses; rather, it may only consider theevidence and any inferences therefrom, in the light mostfavorable to the party resisting the motion. Board of Trusteesof Community College District No. 508 v. Coopers & Lybrand, 208Ill. 2d 259, 274, 208 Ill.2d 259 (2003). A decision on a motionfor judgment n.o.v. is subject to de novo review by this court. Snelson v. Kamm, 204 Ill. 2d 1, 42, 787 N.E.2d 796 (2003), citingMcClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132,720 N.E.2d 242 (1999).

ANALYSIS

In a negligence medical malpractice action, the burden is onthe plaintiff to prove the following: the proper standard of careagainst which the defendant's conduct is measured; an unskilledor negligent failure to comply with the applicable standard; anda resulting injury proximately caused by the defendant's want ofskill or care. Purtill v. Hess, 111 Ill. 2d 229, 241-42, 489N.E.2d 867 (1986). Unless the negligence is so grossly apparentor the treatment so common as to be within the everyday knowledgeof a layperson, expert medical testimony is required to establishthe standard of care and the defendant's deviation from thatstandard. Purtill, 111 Ill. 2d at 242.

The Hospital argues that, because none of plaintiff's expertphysicians were licensed nurses, they were not competent totestify as to either the applicable standard of care for thenurses attending Mrs. Garley or whether the nursing staffdeviated from that standard of care. Plaintiff, on the otherhand, contends that his experts were competent based upon theirexperience working with and, as to Drs. Duboe and Vasquez,teaching nurses.

Recently, our supreme court addressed the issue of howcourts are to determine the competency of an expert witness in amedical malpractice action. See Sullivan v. Edward Hospital, 209Ill. 2d 100, 111-16 (2004). In doing so, the court discussed thedevelopment of "the test of an expert physician's competency totestify." Sullivan, 209 Ill. 2d at 112.

Initially, in Dolan v. Galluzzo, 77 Ill. 2d 279, 285, 396N.E.2d 13 (1979), the supreme court held:

"[I]n order to testify as an expert on thestandard of care in a given school of medicine, thewitness must be licensed therein. Once the fact ofsuch license has been established, it lies within thesound discretion of the trial court to determine if thewitness is qualified to testify as an expert regardingthe standard of care." Dolan, 77 Ill. 2d at 285.

The rationale behind this licensure requirement, according to thecourt, was:

"'[T]here are different schools of medicine withvarying tenets and practices, and that inequities wouldbe occasioned by testing the care and skill of apractitioner of one school of medicine by the opinionof a practitioner of another school' [Citation]." Dolan, 77 Ill. 2d at 283.

Simply put, the "practitioner of a particular school of medicineis entitled to have his conduct tested by the standards of hisschool." Dolan, 77 Ill. 2d at 283.

Dolan's licensure requirement was next discussed in Purtill,where the court stated:

"It must be established that the expert is a licensedmember of the school of medicine about which heproposes to express an opinion [citation], and theexpert witness must show that he is familiar with themethods, procedures, and treatments ordinarily observedby other physicians, in either the defendantphysician's community or a similar community.[Citations.] Once the former requirement has beensatisfied, 'it lies within the sound discretion of thetrial court to determine if the witness is qualified[and competent] to [state his opinion] as an expertregarding the standard of care. [Citation.]'" Purtill,111 Ill. 2d at 243.

In Jones v. O'Young, 154 Ill. 2d 39, 43, 607 N.E.2d 224(1992), the supreme court again addressed the competencyrequirements for expert witnesses in a medical malpracticeaction, stating:

"First, the physician must be a licensed member of theschool of medicine about which he proposes to testify.[Citation.] Second, 'the expert witness must show thathe is familiar with the methods, procedures, andtreatments ordinarily observed by other physicians, ineither the defendant physician's community or a similarcommunity.' [Citation.] Once the foundationalrequirements have been met, the trial court has thediscretion to determine whether a physician isqualified and competent to state his opinion as anexpert regarding the standard of care." Jones, 154Ill. 2d 43.

The court went on to say:

"The foundational requirements provide the trial courtwith the information necessary to determine whether anexpert has the expertise in dealing with theplaintiff's medical problem and treatment. ***

If the plaintiff fails to satisfy either of thefoundational requirements of Purtill, the trial courtmust disallow the expert's testimony. [Citation.] Therequirements are a threshold beneath which theplaintiff cannot fall without failing to sustain theallegations of his complaint." Jones, 154 Ill. 2d at43-44.

Having revisited its previous holdings in Dolan, Purtill,and Jones, the court in Sullivan reiterated the requirement that,in order to provide competent standard of care testimony, theplaintiff's proffered expert physician must be licensed in thedefendant's given school of medicine. See Sullivan, 209 Ill. 2dat 113-14. ("If the expert physician fails to satisfy either ofthese foundational requirements, 'the trial court must disallowthe expert's testimony. [Citation.] Dolan established the firstrequirement, i.e., that a health-care expert witness must be alicensed member of the school of medicine about which the expertproposes to testify. *** Accordingly, the Dolan court held that'in order to testify as an expert on the standard of care in agiven school of medicine, the witness must be licensed therein.'[Citation.]").

The Sullivan court also rejected the plaintiff's argumentthat, based upon language in Jones, "Illinois law no longer holdsthat a health professional expert witness must always be alicensed member of the school of medicine about which the expertproposes to testify." Sullivan, 209 Ill. 2d at 114. The courtstated:

"We cannot accept this argument. Jones clearlyreaffirms this court's decision in Purtill describingtwo foundational requirements: that the health-careexpert witness must be a licensed member of the schoolof medicine about which the expert proposes to testify;and that the expert must be familiar with the methods,procedures, and treatments ordinarily observed by otherhealth-care providers in either the defendant'scommunity or a similar community. Indeed, the verynext sentences in Jones following the italicizedsentence upon which plaintiff relies state: 'If theplaintiff fails to satisfy either of the foundationalrequirements of Purtill, the trial court must disallowthe expert's testimony. [Citation.]. The requirementsare a threshold beneath which the plaintiff cannot fallwithout failing to sustain the allegations of hiscomplaint.' [Citation.] It is only after determiningthat both foundational requirements are satisfied thatthe court proceeds to evaluate whether the allegationsof negligence concern matters within the expert'sknowledge and observation. Instead of retreating fromthe license requirement, Jones clearly reaffirms that aplaintiff must satisfy both requirements." (Emphasis inoriginal.) Sullivan, 209 Ill. 2d at 114-15, citingJones, 154 Ill. 2d at 44, citing Purtill, 111 Ill. 2dat 244.

Therefore, in order for an expert physician to be competent totestify, two foundational requirements must be met: (1) thephysician must be a licensed member of the school of medicineabout which he proposes to testify and (2) the expert witnessmust show that he is familiar with the methods, procedures, andtreatments ordinarily observed by other physicians, in either thedefendant physician's community or a similar community. SeeSullivan, 209 Ill. 2d at 112-13, quoting Jones, 154 Ill. 2d at43. These foundational requirements are " 'a threshold beneathwhich the plaintiff cannot fall without failing to sustain theallegations of his complaint.' " Sullivan, 209 Ill. 2d at 115, quoting Jones, 154 Ill. 2d at 44. "Once the foundationalrequirements have been met, the trial court has the discretion todetermine whether a physician is qualified and competent to statehis opinion as an expert regarding the standard of care." Jones,154 Ill. 2d at 43, citing Purtill, 111 Ill. 2d at 243.

It is undisputed that, in this case, plaintiff's expertswere well-qualified physicians, whose professional experience andaccomplishments were beyond reproach. Equally undisputed,however, is that none of plaintiff's experts were licensed in theschool of nursing. The question is whether this one failingrenders them incompetent to testify as to the applicable nursingstandard of care and deviations therefrom.

Both our supreme court and legislature have recognizednursing as a unique school of medicine. See Sullivan, 209 Ill.2d at 119, citing Dolan, 77 Ill. 2d at 284; see also 225 ILCS65/5-1 et seq. (West 2000) (the Nursing and Advanced PracticeNursing Act, which sets forth a unique licensing and regulatoryscheme for the nursing profession). In Sullivan, our supremecourt rejected the proposition that "'[t]here is nothing which anurse can do which a doctor cannot do'" because it "presumes auniversal standard of treatment among physicians and nurses."Sullivan, 209 Ill. 2d at 120. In doing so, the supreme court,quoting from the brief of amicus The American Association ofNurse Attorneys (TAANA), stated:

"TANNA persuasively reasons:

'A physician, who is not a nurse, is no more qualified to offer expert, opinion testimony as to the standard of care for nurses than a nurse would be to offer an opinion as to the physician standard of care. *** Certainly, nurses are not permitted to offer expert testimonyagainst a physician based on their observances ofphysicians or their familiarity with the proceduresinvolved. An operating room nurse, who stands shoulderto shoulder with surgeons every day, would not bepermitted to testify as to the standard of care of asurgeon. An endoscopy nurse would not be permitted totestify as to the standard of care of agastroenterologist performing a Colonoscopy. A laborand delivery nurse would not be permitted to offerexpert, opinion testimony as to the standard of carefor an obstetrician or even a midwife. Nor would anurse be permitted to testify that, in her experience,when she calls a physician, he/she usually responds ina certain manner. Such testimony would be, essentially,expert testimony as to the standard of medical care.'

Scholars share this reasoning:

'Physicians often have no first-handknowledge of nursing practice except for observations made in patient care settings.The physician rarely, if ever, teaches in anursing program nor is a physicianresponsible for content in nursing texts. Inmany situations, a physician would not befamiliar with the standard of care or withnursing policies and procedures which governthe standard of care. Therefore, aphysician's opinions would not be admissiblein jurisdictions which hold the expert mustbe familiar with the standard of care inorder to testify as an expert.'" Sullivan,209 Ill. 2d at 120-21, quoting E. Beyer & P.Popp, Nursing Standard of Care in MedicalMalpratice Litigation: The Rule of the NurseExpert Witness, 23 J. Health & Hosp. L. 363,365 (1990).

The plaintiff argues that the testimony of Dr. Duboe and Dr.Vasquez clearly demonstrates that they did teach nurses and werefamiliar with the standard of care for nurses. Appellee'sargument on this point is well-taken. However, the Sullivancourt continued:

"By enacting the Nursing and Advanced Practice NursingAct (225 ILCS 65/5-1 et seq. (West 2000)), thelegislature has set forth a unique licensing andregulatory scheme for the nursing profession. As TAANAobserves, under the nursing act, a person with amedical degree, who is licensed to practice medicine,would not meet the qualification for licensure as aregistered nurse, nor would that person be competent tosit for the nursing license examination, unless thatperson completed an accredited program in nursing. See225 ILCS 65/5-1 et seq. (West 2000). The appellatecourt in this case correctly reasoned:

'Dr. Barnhart is not a licensed member of thenursing profession. To allow the doctor totestify as to the standard of care applicableto the nursing profession implicates therisks raised by Dolan, namely, the impositionof a higher standard of care and the muddlingand mixing of various tenets and practicesunique to each profession.' 335 Ill. App. 3dat 272.

We uphold the trial court's ruling on the competency ofDr. Barnhart to testify as to the standard of care forthe nursing profession. We expressly reaffirm thelicensure requirement of Dolan and its progeny anddecline plaintiff's invitation to deviate therefrom." Sullivan, 209 Ill. 2d at 122-23.

In this case, there is little question, based upon theirextensive experience observing and working with, and, for Drs.Duboe and Vasquez, actually teaching nurses, that all three ofplaintiff's expert physicians would have satisfied the secondfoundational requirement (being familiar with the methods,procedures, and treatments ordinarily observed by the nurses). The fact remains, however, that none were licensed members of theschool of nursing, an unequivocal requirement under Dolan and itsprogeny. See Sullivan, 209 Ill. 2d at 119 ("Clearly, this exactissue [whether the licensure requirement includes the nursingprofession] was contemplated by this court in Dolan, whichunequivocally required that a health-care expert witness must bea licensed member of the school of medicine about which theexpert testifies"). As our supreme court has made clear, "Weexpressly reaffirm the license requirement of Dolan and itsprogeny and decline plaintiff's invitation to deviate therefrom." Sullivan, 209 Ill. 2d at 123, accord Jones, 154 Ill. 2d at 43-44;Purtill, 111 Ill. 2d at 244; Dolan, 77 Ill. 2d at 285.

Rigid and formalistic though this rule may be, it isfundamental to our judicial system that once our supreme courthas declared the law on any point, this court must follow thatlaw, as only the supreme court has authority to overrule ormodify its own decisions. See Mekertichian v. Mercedes-BenzU.S.A., L.L.C., 347 Ill. App. 3d 828, 836 (2004); Robinson v.Johnson, 346 Ill. 2d 895, 907 (2003); see also Schiffner v.Motorola, Inc., 297 Ill. App. 3d 1099, 1102, 697 N.E.2d 868(1998) (stating that "the doctrine of stare decisis requirescourts to follow the decisions of higher courts"). Moreover,such a rule is necessary in order to avoid the danger of imposingupon nurses a higher standard of care than society and the lawshould expect, and the inequities that would result from doingso. Therefore, because only those licensed in the field ofnursing may testify as to the nursing standard of care andbecause plaintiff failed to offer any competent expert testimonyto establish the standard of care for the Hospital's nursingstaff, we find that the circuit court erred in denying theHospital's motion for judgment notwithstanding the verdict. SeeSullivan, 209 Ill. 2d at 123-24 (upholding the trial court'sruling that a doctor was not competent to testify as to thestandard of care for the nursing profession and granting adirected verdict for the hospital).

Plaintiff relies upon Wingo v. Rockford Memorial Hospital,292 Ill. App. 3d 896, 904-07, 686 N.E.2d 722 (1997), to supporthis argument that his experts were competent to testify as to theapplicable nursing standard of care. In Wingo, a pregnantpatient went to the hospital reporting that her water had brokenand that she was leaking fluid. The doctor who examined thepatient the following morning found that the patient was notleaking fluid. After the doctor's examination, however, a nurseobserved the patient leaking fluid, but failed to communicatethis to the doctor. The patient was discharged from the hospitallater that night. A few hours after her discharge, she began tohave complications and returned to the hospital, where doctorsperformed an immediate delivery. Her child was born with severebrain damage. Wingo, 292 Ill. App. 3d at 900-01.

At trial, the plaintiff introduced the testimony of expertwitnesses, one of whom was a "board-certified obstetrician andgynecologist" who had taught nurses "in programs focusing on theassessment of a fetus during labor" and who "routinely lecture[d]obstetrical nurses in continuing education courses." Wingo, 292Ill. App. 3d at 903. The experts each testified that the nursedeviated from the standard of care by not appropriately informingthe doctor that the patient continued to leak fluid. After ajury returned a verdict for the plaintiff, the hospital appealedand argued that the "trial court erred in allowing the plaintiffsto present expert testimony from three doctors to establish theapplicable standard of care for the Hospital's nurse." Wingo,292 Ill. App. 3d at 904.

After noting that no Illinois court had ever directlyapplied the licensing requirement to prevent a physician fromestablishing the applicable nursing standard of care, or foundreversible error in allowing a physician to offer such testimony,the appellate court affirmed, stating:

"We find that the facts of the instant case do not fit within the license requirement of Dolan or Jones. Those cases indicate that the reason for the rule is toprevent a higher standard of care being imposed upon thedefendant and to ensure that the testifying expert hasexpertise in dealing with the patient's medical problem andtreatment and that the allegations of negligence are withinthe expert's knowledge and observation." Wingo, 292 Ill.App. 3d at 906.

The court, in reviewing the facts before it, stated:

"Those concerns have not been sacrificed here. In theinstant case, the allegations of negligence against[the nurse] did not concern a nursing procedure but,rather, related to what a nurse is required tocommunicate to a physician about what transpired sincethe physician last saw the patient. As such theallegations of negligence do not concern an area ofmedicine about which there would be a differentstandard between physician and another school ofmedicine. Furthermore, it was established that theallegations of negligence were well within thetestifying doctors' knowledge and experience. Webelieve that a physician should be entitled to testifyabout what he or she is entitled to rely upon in thearea of communication from a nurse in the context of anobstetrical team rendering care to a patient in ahospital. Accordingly, we hold that no error occurredin allowing the doctors to testify as to the applicablenursing standard of care in this case." (Emphasisadded.) Wingo, 292 Ill. App. 3d at 906.

The court also found that "even if it was error to admit thephysicians' testimony under Dolan, it was harmless" because"[t]hree nurses testified that the nursing standard of carerequired [the nurse] affirmatively tell [the doctor] that thepatient continued to leak amniotic fluid." Wingo, 292 Ill. App.3d at 906. The court stated "even without the physicians'testimony there was evidence in the record to establish thestandard of care for nurses, and we do not find it likely thatthe outcome was affected by allowing the testimony." Wingo, 292Ill. App. 3d at 907. Plaintiff's reliance upon Wingo ismisplaced.

First, the initial premise on which Wingo's reasoning wasbased, i.e. that no Illinois court had directly applied thelicensing requirement to prevent a physician from establishingthe applicable nursing standard of care, is no longer true. SeeSullivan, 209 Ill. 2d at 123-24. While the reach of the licenserequirement in the context of a physician testifying as to thenursing standard of care was an open question when Wingo wasdecided, as well as when the trial in this case was held, thesupreme court in Sullivan left no doubt that having such alicense is "unequivocally required." Sullivan, 209 Ill. 2d at 123("We expressly reaffirm the licensure requirement of Dolan andits progeny and decline plaintiff's invitation to deviatetherefrom"). Second, in Wingo, three nurses testified that thenurse deviated from the applicable nursing standard of care byfailing to communicate the patient's condition to her doctor. See Wingo, 292 Ill. App. 3d at 906. Here, none of plaintiff'switnesses were competent to establish the applicable nursingstandard of care. Therefore, we believe that Wingo is notapplicable to the case at bar.

Plaintiff argues that his experts were competent to testifybased upon their years of experience observing, working with, andteaching nurses. While such experience would certainlydemonstrate that they were "familiar with the methods,procedures, and treatments ordinarily observed by otherphysicians, in either the defendant physician's community or asimilar community," (Purtill, 111 Ill.2d at 243), the secondfoundational requirement for determining the competency of anexpert witness, and could be considered by the circuit court indetermining, within her sound discretion, "whether a physician isqualified and competent to state his opinion as an expertregarding the standard of care," (Purtill, 111 Ill.2d at 243),the fact remains that they were not licensed in the school ofnursing. An expert physician who is not licensed in theparticular school of medicine about which he intends to testifyis automatically incompetent; his knowledge, experience, andlevel of expertise, no matter how extensive, are simplyirrelevant. See Sullivan, 209 Ill. 2d at 119; Jones, 154 Ill. 2dat 43-44; Purtill, 111 Ill. 2d at 244; Dolan, 77 Ill. 2d at 285.

Plaintiff also argues that the nursing staff's conduct was"so grossly negligent" that expert testimony was not needed toestablish the Hospital's liability. Plaintiff argues that thenursing staff basically "disregarded" Dr. Multack's order byfailing to ambulate Mrs. Garley or inform her doctors of herinability to ambulate. "An exception to the general rule thatexpert testimony is required in a medical malpractice case hasbeen recognized in those cases where the conduct is so grosslynegligent or the treatment so common that a layman may understandthe conduct without the necessity of expert testimony toestablish the standard of care and its breach." Prairie v.University of Chicago Hospitals, 298 Ill. App. 3d 316, 321, 698N.E.2d 611 (1998), citing Walski v. Tiesenga, 72 Ill. 2d 249, 381N.E.2d 279 (1978).

In this case, the defendant-nurses did not disregard Dr.Multack's order. The nurses first attempted to ambulate Mrs.Garley three hours after surgery, but she was unable to tolerateit. Mrs. Garley was walked three times on April 29. She waswalked again on April 30. The nurses also testified thatadditional, "uncharted" attempts to ambulate her wereunsuccessful. Besides her complaints to Ms. Colbert and herhusband of leg pain, complaints which were not indicated in anymedical chart, Mrs. Garley showed no symptoms of a DVT. Moreover, it is doubtful that the layman would understand theimportance of ambulating a patient after surgery. Thus, thenurses' conduct cannot be deemed so grossly negligent thatplaintiff was not required to offer expert testimony to establishthe Hospital's liability.

At the time of trial and until Sullivan, no Illinois courthad held that the license requirement in Dolan prevented aphysician from establishing the applicable nursing standard ofcare and several appellate cases had affirmed circuit courtswhere physicians "testified against nurses to establish thenursing standard of care without it being challenged" (Wingo, 292Ill. App. 3d at 905-06 (and cases cited therein)), and the trialcourt's error in allowing Drs. Bird, Duboe, and Vasquez'stestimony was in reliance upon these cases. However, based uponthe clear dictate of our supreme court's holding in Sullivan, wereverse and remand this matter for a new trial consistent withthe views expressed herein.

Reversed and remanded.

GREIMAN, J., specially concurring.

HARTMAN, J., dissents.

JUSTICE GREIMAN, specially concurring:

The authoring judge thoughtfully announces that he isfollowing Sullivan v. Edward Hospital, 209 Ill. 2d 100 (2004). Inthat case and its predecessors, Dolan v. Galluzzo, 77 Ill. 2d 279(1979), Purtill v. Hess, 111 Ill. 2d 229 (1986), and Jones v.O'Young, 154 Ill. 2d 39 (1992), a bright line was imposed whichrequires that health care experts be licensed in the school ofmedicine of which the expert proposes to testify.

In Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896(1997), the appellate court distinguished Dolan and itspredecessors by suggesting a physician could testify to thestandard of care for the nurses relating to communications to aphysician about what has transpired since the physician last sawthe patient.

The authoring judge suggests that Sullivan trumps all of thepreceding decisions in imposing the bright line of licensure.

However, the Sullivan court is very careful to state "the precisefactual scenario of Wingo is not present." Sullivan, 209 Ill. 2dat 118. In Sullivan, the expert's testimony related to nursingprocedures rather than communications. Sullivan, 209 Ill. 2d at118.

Sullivan further states:

"In distinguishing Wingo from this case, the appellate court did not discuss the merits of Wingo, and neither do we. The present case falls squarely within the license requirement of Dolan and its progeny." Sullivan, 209 Ill. 2d at 119.

If our supreme court wished to impose a license requirementeven on those matters that relate to communications to a physicianfrom a nurse, it could have easily so stated.

Instead it suggested the facts of Wingo, dealing withcommunications between a nurse and a physician, were not within thepurview of the order in Sullivan.

Accordingly, we must conclude that Wingo remains anappropriate precedent to follow in the case at bar if it meets thefactual requirements. The negligence of the nurse in part ispredicated upon the nurse's failure to communicate to the physicianthe failure of the plaintiff's decedent to respond to ambulation.

While a physician unlicensed as a nurse might not be competentto testify as to general nursing procedure, nothing in Sullivansuggests that a physician, upon a proper foundation of experience,could not testify as to the standard of care for a failure ofcommunication between nurse and physician.

In the case at bar, Dr. DuBoe's opinion does touch upon thefailure to communicate, although he also touches upon the failureto timely ambulate the patient and to properly respond to the patient's complaints of pain. Similarly, Drs. Bird and Vasqueztestified to matters other than communication between nurse and physician. Accordingly, it appears that their testimony here fallswithin the scope of Sullivan.

I therefore grudgingly concur with the authoring judge. Grudgingly because I do not believe that a physician's testimonyabout a nurse's standard of care will somehow raise the bar on thatstandard of care. It is difficult to imagine that physicians with20 years' (Dr. DuBoe), 31 years' (Dr. Bird) and 26 years' (Dr.Vasquez) experience, two of whom have taught nurses and one who haswritten a nurses manual, cannot determine a nurse's standard ofcare.

The majority quotes a learned text that is set forth inSullivan: E. Beyer & P. Popp, Nursing Standard of Care in MedicalMalpratice Litigation: The Role of the Nurse Expert Witness, 23 J.Health & Hospital L. 363, 365 (1990), which provides:

"'Physicians often have no first-hand knowledge of nursing practice except for observations made in patient care settings. The physician rarely,if ever, teaches in a nursing program nor is a physician responsible for content in nursing texts.'" (Emphasis added.) Slip op. at 18.

One might wonder why the supreme court in Sullivan felt it necessary to make reference to the physician who teaches in nursingprograms or who is responsible for the production of nursing texts.

In the instant matter, Dr. Bird testified that he had taught nurses and Dr. Vasquez testified that, in addition to teachingnurses, he had worked with hospital authorities to prepare nursingguidelines.

The foundation that these doctors taught or prepared manualswas not in much depth or detail. While this may not be the casefor a physician who has been involved in teaching or preparation ofa nursing manual to testify, Sullivan does not completely closethat door.

I respectfully dissent from the majority dispositionreversing the jury's decision favoring plaintiffs in this case.

The majority author finds that Sullivan v. Edward Hospital,209 Ill. 2d 100, 806 N.E.2d 645 (2004) (Sullivan), has establisheda "bright line" requiring, for this case, that a physician may nottestify with respect to the nursing standard of care unless thephysician also was a licensed nurse. The concurring authordisagrees, citing Wingo v. Rockford Memorial Hospital, 292 Ill.App. 3d 896, 686 N.E.2d 722 (1997) (Wingo), to the effect thatSullivan never reached the issue of whether a communication betweendoctor and nurse, or its absence, could be the subject of thephysician's expert opinion as to the nurse's failure to meet thestandard of care required in such cases. I agree with theconcurring opinion with respect to its conclusion that Sullivandoes not prevent a doctor from testifying as to a nurse's failureto communicate to the doctor necessary information concerningfulfillment of the doctor's orders as it affects his patient.

The concurrence goes on to note, however, that the threephysicians who testified for plaintiffs did not limit their experttestimony to lack of communication, but also testified to nursingmatters other than communications, or lack thereof, contrary toSullivan, and would concur in the reversal and remandment of thiscase. Although the concurrence notes that two of the threephysicians taught in nursing programs, one of whom assisted in thepreparation of a nursing manual, the foundations for their teachingand writing "was not in much depth or detail."

Clearly, plaintiffs' physicians who testified as experts as toadequacies of communications between doctors and nurses concerningthe patient's well-being were qualified to give their expertopinions with respect to this subject. The three doctors had over76 years of experience in working with nurses in various hospitalsettings and were well qualified to testify concerning what wasexpected of nurses by way of communications between doctors andnurses. It is unfathomable to regard a doctor who has had to relyon hospital staff to advise him as to the progress, or lack ofprogress, of a patient he has placed in the hospital for care andtreatment, as incompetent to testify as an expert in this regard.

With respect to the physicians' qualifications to testifyconcerning nursing matters other than communications, dismissed bythe concurrence for lack of foundation, no objections to theirtestimony were timely made at a time when any paucity of foundationcould have been cured at the trial level. Doctors who teach ortrain nurses at nursing schools have been recognized in otherjurisdictions as experts with respect to nursing standards of careviolations. Nold v. Binyon, 272 Kan. 87, 31 P.3d 274 (2001); Hallv. Sacred Heart Medical Center, 100 Wash. App. 53, 995 P.2d 621(2000); Hall v. Huff, 957 S.W.2d 90 (Tex. App. 1997); Haney v.Alexander, 71 N.C. App. 731, 323 S.E.2d 430 (1984). None of theforegoing authorities have questioned the teaching or trainingexperiences of the physicians testifying as to nursing standards. In Wingo, similarly to the instant case, a board certifiedobstetrician and gynecologist, who lectured nurses in variousprograms and courses, was found qualified to testify with respectto deviations in nursing standards of care. There, as here,defendant's failure to make a contemporaneous objection at trialwas found to be waiver, although the appellate court went on todecide the issue on its merits favorably to plaintiffs.

For the foregoing reasons, I would affirm the jury's decisionin the present case.