Hallowell v. University of Chicago Hospital

Case Date: 09/06/2002
Court: 1st District Appellate
Docket No: 1-01-0349, 1-01-0352  cons. 

Nos. 1-01-0349, 1-01-0352 (Cons.)

 

DANIEL HALLOWELL and CAROL HALLOWELL, ) Appeal from the
Indiv. and as Co-Special Adm'rs of ) Circuit Court of
the Estate of Amy Hallowell, a Minor, ) Cook County.
Deceased,  )
)
                          Plaintiffs-Appellees, )
)
         v. )
)
THE UNIVERSITY OF CHICAGO HOSPITAL, )
a Corporation, d/b/a Wyler Children's )
Hospital; J. DEANE WALDMAN,  )
)
                         Defendants-Appellants. )

) No. 94 L 16986
DANIEL HALLOWELL and CAROL HALLOWELL, )
Indiv. and as Co-Special Adm'rs of )
the Estate of Amy Hallowell, a Minor, )
Deceased,  )
)
                          Plaintiffs-Appellees, )
)
         v. )
)
MIDWEST PEDIATRIC CARDIOLOGY, P.C., a  )
corporation; OTTO G. THILENIUS, )
and THOMAS E. BUMP, ) Honorable
) Sharon J. Coleman,
                          Defendants-Appellees.  ) Judge Presiding.

 

JUSTICE REID delivered the opinion of the court:

Following a jury trial, a verdict was entered against defendants the University of Chicago Hospital, a corporation,doing business as Wyler Children's Hospital (Wyler's), and J.Deane Waldman, M.D. (Dr. Waldman), for the wrongful death of AmyHallowell. The jury also found defendants Midwest PediatricCardiology, P.C. (Midwest), Otto Thilenius, M.D. (Dr. Thilenius),and Thomas E. Bump, M.D. (Dr. Bump), not liable. The juryawarded the plaintiffs, Daniel and Carol Hallowell (theHallowells), $8 million in damages. These two consolidatedappeals followed.

In their appeal, Wyler and Dr. Waldman assert the trialcourt erred when it denied their motions for a judgmentnotwithstanding the verdict (judgment n.o.v.) or a new trial. Inparticular, Wyler and Dr. Waldman contend the trial courtimproperly granted the Hallowells' motion in limine that barredDr. Waldman from testifying about a telephone conversation inwhich Mrs. Hallowell allegedly informed another Wyler employeethat Dr. Waldman was no longer going to be Amy's physician.

On appeal, the Hallowells argue the trial court erred whenit denied their posttrial motions for a judgment n.o.v. or a newtrial as to Midwest, Dr. Thilenius and Dr. Bump. The Hallowellsmaintain there was overwhelming evidence introduced at trialwhich proved that Dr. Thilenius and Dr. Bump failed to follow thestandard of care when they neglected to recommend or to providethe Hallowells with information concerning the possibility of Amyreceiving an implantable cardiac defibrillator (ICD).

For the reasons that follow, we affirm the decisions of thetrial court.THE FACTS On May 20, 1992, nine-year-old Amy suffered a cardiac arrestwhile participating in a swim meet. After being removed from theswimming pool, Amy was found to be in a state of ventricularfibrillation. Paramedics performed cardiopulmonary resuscitationand defibrillated Amy's heart.

After being resuscitated, Amy was taken to Wyler, where shewas treated by Dr. Waldman, a pediatric cardiologist, whoeventually became Amy's attending cardiologist. Anelectrocardiogram (EKG) revealed that Amy had abnormal heartrhythm patterns or heart arrhythmias. Amy was also found to havevery low potassium levels, the ultimate cause of which was neverascertained. Dr. Waldman was able to determine that Amy's heartwas structurally normal by using an echocardiograph, which is aninstrument used for diagnosing heart abnormalities.

On June 9, 1992, Amy's charts indicated that a nurse, anendocrinologist, a resident and a pediatrician observed that Amyexperienced heart arrhythmias. However, at trial, Dr. Waldmantestified that he did not believe that Amy experiencedarrhythmias. Amy's potassium levels were also checked and werefound to be normal. When Amy was discharged on June 10, 1992,Dr. Waldman had not determined the cause of her cardiacdifficulties and did not prescribe any medications.

On June 24, 1992, a Holter monitor study was performed onAmy. The study revealed that Amy was experiencing arrhythmias. Her potassium levels were determined to be normal. At trial, Dr.Waldman admitted that in a deposition taken prior to trial, hestated that he felt that as a result of the Holter monitor study,Amy's condition was recurrent rather than a single isolatedevent. At this time, Dr. Waldman initially prescribed Inderal;however, Amy was eventually switched to Verapamil.

In March 1993, Amy's mother, Mrs. Hallowell, sought a secondopinion from Dr. Thilenius, a pediatric cardiologist who was anemployee of Midwest. Dr. Thilenius performed a general physicalexamination and listened to Amy's heart. His findings werenormal. Dr. Thilenius did not have any further contact with Amyuntil December 1993.

In October 1993, Dr. Waldman had Amy undergo a stress test.

The test results did not indicate the etiology of Amy'sarrhythmias. Dr. Waldman also recommended that Amy undergo anelectrophysiology (EP) study and an ablation procedure. Dr.Waldman suggested that Dr. Bump perform the procedures. Dr. Bumpis a cardiologist with an expertise in electrophysiology, whichis the study of heart rhythms.

The Hallowells were familiar with Dr. Bump because he hadpreviously treated their nephew for a similar condition with thesame or similar procedure. Dr. Bump sought the involvement ofDr. Thilenius for the EP study, which was performed on December29, 1993. After performing the test, the doctors were stillunable to locate a ventricular source for Amy's abnormal heartcondition.

On April 29, 1994, Amy became dizzy while taking a showerand collapsed. When the paramedics arrived, they found Amy inventricular fibrillation due to cardiac arrest. Shortlythereafter, Amy was pronounced dead.

On December 30, 1994, the Hallowells filed their initialcomplaint against several individuals and entities, includingWyler, Dr. Waldman, Dr. Bump, Dr. Thilenius and Midwest, allegingthat they were medically negligent in their care and treatment ofAmy. Following a jury trial, a verdict was entered againstWyler's and Dr. Waldman and the plaintiffs were awarded $6million for loss of society and $2 million for pain andsuffering. The jury also returned a verdict in favor of Midwest,Dr. Bump and Dr. Thilenius.

On July 28, 2000, the Hallowells filed posttrial motions fora judgment n.o.v. and for a new trial as to Dr. Thilenius,Midwest and Dr. Bump. On August 1, 2000, Wyler and Dr. Waldmanalso filed posttrial motions requesting a judgment n.o.v. and anew trial. On December 27, 2000, the trial court denied allposttrial motions filed by both the plaintiffs and thedefendants. Subsequently, the Hallowells timely filed theirnotice of appeal, on January 23, 2001, and on January 25, 2001,Wyler and Dr. Waldman timely filed their notice of appeal.

ANALYSIS

I. Wyler and Dr. Waldman's Appeal

Wyler and Dr. Waldman assert the trial court erred when itgranted a motion in limine that precluded Dr. Waldman fromtestifying about the content of a telephone conversation thatallegedly took place between Mrs. Hallowell and MichaelineWallig. Wallig, the head administrator of the cardiologydepartment at Wyler, allegedly telephoned Mrs. Hallowell afterAmy underwent the EP to discuss a follow-up appointment. Duringtheir conversation, Mrs. Hallowell allegedly informed Wallig thatAmy would be going elsewhere for a follow-up appointment.

Dr. Waldman maintains the testimony should have beenadmitted. Dr. Waldman argues the barred testimony was offered toshow his state of mind and to explain his subsequent course ofconduct and, as such, is not hearsay.

In response, the Hallowells contend the restricted testimonywas either hearsay or vague because it was speculative andunreliable. The Hallowells allege that the testimony was hearsaybecause it was not offered to show Dr. Waldman's state of mindbut rather to prove the truth of the matter asserted therein,which was that the Hallowells had discharged Dr. Waldman as Amy'sphysician. We agree.

A motion in limine is addressed to the trial court's

inherent power to admit or exclude evidence. Generally, we willnot disturb the trial court's ruling on a motion in limine absenta clear abuse of discretion. However, a trial court mustexercise its discretion within the bounds of the law. Beehn v.Eppard, 321 Ill. App. 3d 677, 680-81 (2001), citing People v.Williams, 188 Ill. 2d 365, 369 (1999).

The trial court's decision to grant the Hallowells' motionin limine to bar Dr. Waldman from testifying about a conversationthat allegedly took place between Wallig and Mrs. Hallowell wasproper. Dr. Waldman's testimony clearly would have been hearsay.

"An out-of-court statement that is offered as proof of thematter asserted in court is hearsay and, therefore, inadmissible.(People v. Carpenter (1963), 28 Ill. 2d 116, 121.) Thedistinction between admissible testimony and inadmissible hearsayis illustrated by the 'example of the witness A testifying that"B told me that event X occurred." If A's testimony is offeredfor the purpose of establishing that B said this, it is clearlyadmissible--if offered to prove that event X occurred, it isclearly inadmissible.' Carpenter, 28 Ill. 2d at 121." Leonardiv. Loyola University of Chicago, 168 Ill. 2d 83, 99 (1995).

Here, Dr. Waldman's testimony was clearly offered to provethat he was discharged as Amy's physician. After examining Dr.Waldman's barred testimony, it is clear to this court that it wasnot offered to show his state of mind or that the purportedconversation between Mrs. Hallowell and Wallig occurred. Instead, it was clearly offered to show that he was no longerAmy's physician. Even in arguing that the purported testimonywas not hearsay, in the appellants' brief, the opening sentenceunder the argument section contradicts their contentions when itstates: "The trial court erred in refusing to permit DefendantWaldman to testify that he had been discharged by the Plaintiff." We also note that the barred testimony could have been elicitedfrom Mrs. Hallowell during her cross-examination or from Wallig,who was not called as a witness. Strangely, neither of thesethings was done during trial. If the testimony was so important,why did the defense not avail themselves of these options? Thetrial court's order granting the Hallowells' motion in limine didnot bar these alternatives. Here, the trial court did not abuseits discretion.

The trial court's decision was also correct because thetestimony was too speculative. During his deposition, Dr.Waldman said that Wallig called Mrs. Hallowell about a follow-upappointment, and Mrs. Hallowell informed Wallig that Amy would beseeing another doctor instead. However, Dr. Waldman could notremember specifically what Wallig told him. Dr. Waldman saidthat he could not remember the details of what Wallig told himbut, rather, could only state the "gist" of their conversation. This clearly is inadequate.

II. The Hallowells' Appeal

The Hallowells contend the trial court erred when it deniedtheir posttrial motions for a judgment n.o.v. and a new trial. The Hallowells maintain that overwhelming evidence was introducedat trial which proved that defendants Midwest, Dr. Thilenius andDr. Bump failed to follow the standard of care when theyneglected to recommend or to provide the Hallowells withinformation concerning the possibility of Amy receiving an ICD. In particular, the Hallowells assert the testimony of their twoexpert witnesses, Dr. Jeanny Kim Park and Dr. Robert Achtel,prove the defendants failed to follow the appropriate standard ofcare.

The said defendants argue the trial court's decision to denythe Hallowells' posttrial motions was proper. Specifically,these defendants assert their expert witnesses, Dr. Paul Gilletteand Dr. William Hellenbrand, provided testimony that supportedtheir contention that they did not breach the standard of care intheir treatment of Amy. We agree.

Verdicts ought to be directed and judgments n.o.v. enteredonly in those cases in which all of the evidence, when viewed inits aspect most favorable to the opponent, so overwhelminglyfavors movant that no contrary verdict based on that evidencecould ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510 (1967). In recognition that trial courts are not toweigh evidence, resolve conflicts in evidence, or assess thecredibility of witnesses, a ruling on a motion for directedverdict is subject to de novo review. Robinson v. Chicago ParkDistrict, 325 Ill. App. 3d 493, 497 (2001), citing Dunlap v.Alcuin Montessori School, 298 Ill. App. 3d 329, 340 (1998).

"A court's ruling on a motion for a new trial will not bereversed except in those instances where it is affirmativelyshown that it clearly abused its discretion. [Citations.] Indetermining whether the trial court abused its discretion, thereviewing court should consider whether the jury's verdict wassupported by the evidence and whether the losing party was denieda fair trial. [Citation.] Furthermore, it is important to keepin mind that '"[t]he presiding judge in passing upon the motionfor new trial has the benefit of his previous observation of theappearance of the witnesses, their manner in testifying, and ofthe circumstances aiding in the determination of credibility."'[Citation.] If the trial judge, in the exercise of hisdiscretion, finds that the verdict is against the manifest weightof the evidence, he should grant a new trial; on the other hand,where there is sufficient evidence to support the verdict of thejury, it constitutes an abuse of discretion for the trial courtto grant a motion for a new trial. [Citations.]" Maple v.Gustafson, 151 Ill. 2d 445, 455-56 (1992). A verdict is againstthe manifest weight of the evidence if the opposite conclusion isclearly evident or where the findings of the jury areunreasonable, arbitrary and not based upon any of the evidence. Bielaga v. Mozdzeniak, 328 Ill. App. 3d 291, 299 (2002), citingTedrowe v. Burlington Northern, Inc., 158 Ill. App. 3d 438, 443(1987), citing Mizowek v. De Franco, 64 Ill. 2d 303, 310 (1976),Demos v. Ferris-Shell Oil Co., 317 Ill. App. 3d 41, 52 (2000).

"[W]here conflicting expert testimony is introduced attrial, it is the province of the jury as the trier of fact toresolve the conflict. [Citations.] Although this court isrequired to scrutinize the evidence in a medical malpracticeaction when reviewing a denial of a motion for a judgment n.o.v.or a new trial [citations], we will not sit as a second jury andreweigh the evidence or reevaluate the credibility of thewitnesses. [Citations.]" Dabros v. Wang, 243 Ill. App. 3d 259,264 (1993).

In this case, the Hallowells presented expert witnesstestimony which stated that the defendants deviated from thestandard of care. In particular, Dr. Park testified that it washer opinion that Drs. Bump, Thilenius and Waldman breached thestandard of care when they failed to give the Hallowellsinformation about an ICD for Amy. In Dr. Park's opinion, shetestified that the doctors had an obligation under the standardof care to provide this information to the Hallowells. Duringher testimony, Dr. Park stated:

"A. They should have recommended the defibrillatorimplant because, again, she was someone who had [been]presented with sudden death and she at least was ableto be resuscitated so she had a second chance and shewas at high risk for recurrence as evidenced by herfollow-up studies, and knowing that medication is not100 percent effective, that the next thing closest tothat would have been the defibrillator."

Dr. Achtel also testified that it was his medical opinionthat the defendants' treatment of Amy deviated from the standardof care. Dr. Achtel's testimony follows:

"Q. Now, do you have an opinion, sir, as towhether Dr[s]. Waldman, Bump and Thilenius followingthis EP study had an obligation to meet the standard ofcare of providing information about the implantablecardiodefibrillator to Amy and her parents?

* * *

A. Yes, I do.

Q. What is that opinion, sir?

A. I believe that the parents should have beeninformed as to the option of implanting an ICD."

The Hallowells also claim the defendants' argument that theydid not advise them about an ICD because of Amy's low potassiumlevels is disingenuous. Specifically, the Hallowells claim thedefendants were aware that Amy had experienced arrhythmias whileexhibiting normal levels of potassium. Our review of the recordreveals that Dr. Thilenius and Dr. Bump gave testimony whichsuggested that each doctor may have been aware that Amy hadexperienced arrhythmias, although her potassium levels werenormal.

However, the testimony of Dr. Park and Dr. Achtel wasdirectly contradicted by that of the defendants' expertwitnesses, Dr. Gillette and Dr. Hellenbrand. The defendants'experts testified that it was their medical opinion that thedefendants did not deviate from the standard of care during Amy'streatment.

The following testimony was elicited from Dr. Gillette attrial:

"Q. After reviewing the materials in this case,did you reach an opinion whether Dr. Bump complied withthe standard of care in his entire interaction with AmyHallowell?

A. I did.

Q. What is that opinion, Dr. Gillette?

A. I believe that he did keep within the standardof care."

At trial, Dr. Hellenbrand testified that he did not thinkthat ICDs were the standard of care at the time of Amy'streatment. The following is testimony from Dr. Hellenbrand:

"A. The internal--the cardiac defibrillators thatwere available in '92 and '94 for pediatrics werereally the one being used in adults. They were verylarge boxes, maybe that big and that deep.

And they had to be implanted under the skin in theabdomen. And, Amy was a very thin young lady. Andthis would have been a difficult procedure to do. Itwould have protruded. And had some risks associatedwith it.

It would have required a major incision in thechest to place the actual wires on the heart to deliverthe energy from this big box to do that. So it's amajor surgical procedure to do that at that point intime.

It just was not the standard of care at the time. It was basically considered if medical therapy was notsuccessful.

* * *

Q. Doctor, based upon all the information thatyou have reviewed in this case, have you formed anopinion as to whether or not Dr. Thilenius' role inthis case satisfied the standard of care applicable topediatric cardiologists in 1993 and 1994?

A. Yes, I have.

Q. What is your opinion?

A. I believe he acted totally according to thestandard of care."

People qualified in their fields stated their views and gavetheir reasons for these opinions. Nothing was said that was notgrounded somewhere in the evidence. Not so surprisingly, theplaintiffs' experts did not agree with the defendants' experts--not an unusual situation as trials go. We note that plaintiffs'expert, Dr. Park, had been a doctor only since 1993 and she couldnot recall ever having used the ICD model that she testifiedshould have been recommended to the Hallowells. Conversely, Dr.Bump had been an electrophysiologist since 1982 and had conductedresearch on the use of ICDs, authoring five articles on ICDs astreatment for arrhythmia. He had 50 to 100 patients with ICDs inplace at the time of trial. Defense expert Dr. Gillette was oneof the first pediatric cardiologists to pursue electro-physiology. He authored eight books about cardiac rhythm issues. It was the jury's job to listen to the conflicting evidence anduse its best judgment about where the truth could be found. Thisis what juries do best, and there is no reason to believe it didnot do its job in this case. We will not second-guess a jurywithout a good reason. In this case, we find no reason to doubtthe jury's decision. See Harris Trust & Savings Bank v. Abraham-Zwirn, 314 Ill. App. 3d 527 (2000); Dabros v. Wang, 243 Ill. App.3d 259 (1993).

CONCLUSION

For the foregoing reasons, the decisions of the trial courtare affirmed.

Affirmed.