Fosse v. Pensabene

Case Date: 11/01/2005
Court: 2nd District Appellate
Docket No: 2-04-1267 Rel

No. 2--04--1267

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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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LINDA FOSSE, Executor of the Estate
of Robert Pace, Deceased,

           Plaintiff-Appellant,

v.

JOSEPH PENSABENE,

           Defendant-Appellee.

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Appeal from the Circuit Court
of Winnebago County.
 

No. 03--L--297

JOSEPH PENSABENE,

 
Honorable
Timothy R. Gill,
Judge, Presiding.

 


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JUSTICE HUTCHINSON delivered the opinion of the court:

This matter comes before the court as an interlocutory appeal brought pursuant to SupremeCourt Rule 308 (155 Ill. 2d R. 308). Plaintiff, Linda Fosse, as executor of the estate of Robert Pace,deceased, appeals the trial court's order barring the introduction of the results or other evidenceobtained from the autopsy performed upon the decedent. In so ruling, the trial court certified threequestions for appeal:

"Whether an autopsy of the plaintiff's decedent performed during the pendency oflitigation was discovery";

"If the answer to the preceding question is in the affirmative, whether it is an abuseof discovery rules for a plaintiff to obtain an autopsy on the corpse of the plaintiff's decedentwithout notice to the defense"; and

"If the answer to each of the preceding questions is in the affirmative, whether barringintroduction of evidence obtained from such autopsy is an appropriate sanction."

In an order dated January 21, 2005, this court denied plaintiff's application for interlocutory appeal. See Fosse v. Pensabene, No. 2--04--1267 (2005). Plaintiff then petitioned for leave to appeal to theIllinois Supreme Court. In a supervisory order entered May 25, 2005, the Illinois Supreme Courtdenied plaintiff's petition for leave to appeal, but ordered this court to vacate its January 21, 2005,order and to allow the interlocutory appeal. See Fosse v. Pensabene, 215 Ill. 2d 595 (2005). Incompliance with our supreme court's directive, we entered such an order on June 24, 2005, and nowenter this opinion. Having considered the merits of the present case, we answer the first certifiedquestion in the affirmative, we answer the second certified question in the negative, we decline toanswer the third certified question, and we reverse and remand.

The record reflects that on May 6, 2003, the decedent, Robert Pace, underwent a medicalprocedure at SwedishAmerican Hospital in Rockford (the hospital). During the procedure, acardiologist performed a cardiac catheterization and coronary angiography on Pace. Shortlythereafter, Pace experienced low blood pressure, low hemoglobin level, a firm and distendedabdomen, and sweating. Defendant, Dr. Joseph Pensabene, was notified by telephone of Pace'ssymptoms, and he ordered a CT scan. After receiving the results of the scan, defendant orderedcontinued observation of Pace. Approximately one hour later, defendant was informed that Pace'shemoglobin level had continued to drop, and defendant ordered that Pace be transferred to the cardiaccare unit. Pace died approximately one hour later.

On August 8, 2003, plaintiff, the decedent's daughter, initiated a cause of action againstdefendant for medical negligence. Plaintiff's complaint included one count brought pursuant to theWrongful Death Act (740 ILCS 180/1 et seq. (West 2002)) and one count brought pursuant to theSurvival Act (755 ILCS 5/27--6 (West 2002)). Plaintiff alleged, inter alia, that all of defendant's careand treatment of the decedent was via telephonic communication with the decedent's nurses and thatdefendant failed to see or physically examine the decedent until he was transferred to the cardiac careunit. Plaintiff alleged, inter alia, that defendant's failure to perform a proper physical examination ofthe decedent proximately caused his suffering and his death. Plaintiff named as respondents indiscovery the hospital, Rockford Cardiology Associates, Ltd., Jagdeep Tung, Marc Whitman, ErikEnglehart, and the cardiologist, Jagdeep Sagharwal. Defendant filed an answer, denying plaintiff'smaterial allegations.

On August 19, 2003, defendant served "Wrongful Death Interrogatories" requesting plaintiffto state "whether any autopsy was performed on the decedent and, if so, give the name and lastknown address of the person performing the said autopsy, the date it was performed, and the placeit was performed." On September 15, 2003, plaintiff answered defendant's interrogatories. Plaintiffidentified the decedent's family members, friends, and various hospital personnel as individuals whohad knowledge of the facts concerning matters alleged in the complaint. Plaintiff also specificallyresponded that "[a]n autopsy was not performed."

On October 3, 2003, plaintiff obtained a permit to exhume the decedent's body. Thedecedent's body was exhumed on October 6, 2003. On October 6, 2003, L.W. Blum, M.D., aforensic pathologist associated with the Winnebago County coroner's office, performed an autopsyon the decedent's body. Plaintiff's counsel was present at the autopsy and took photographs; theautopsy was also videotaped. On October 24, 2003, Dr. Blum prepared a seven-page report. Thereport reflects that Dr. Blum concluded that the cause of the decedent's death was "hemorrhagicshock due to retroperitoneal and intraperitoneal hemorrhage following arterial catheterizations fora coronary angiogram and left ventriculogram." Dr. Blum retained sections of the decedent's internalorgans for further examination.

On October 31, 2003, plaintiff supplemented her prior discovery responses to defendant.Plaintiff tendered to defendant a copy of Dr. Blum's report. The supplement advised defendant ofthe following:

"[O]n October 13, 2003, Dr. Larry Blum performed an autopsy on Mr. Pace'sremains. The procedure took place at the Winnebago County Morgue, 240 West StateStreet, Rockford, Illinois. Photographs and a videotape were made during that procedure. Dr. Blum's report is attached hereto. If anyone would like to view the videotape and/orphotographs, please advise. Of course, they may be copied as well. We hereby disclose Dr.Blum as a controlled expert witness."

On July 2, 2004, defendant filed a motion to dismiss plaintiff's complaint pursuant to SupremeCourt Rule 219 (Official Reports Advance Sheet No. 8 (April 17, 2002), R. 219, eff. July 1, 2002)because of plaintiff's failure to provide advance notice of the exhumation and autopsy. In thealternative, defendant moved to bar all evidence of the autopsy and all evidence derived from theautopsy. Defendant argued, inter alia, that the autopsy constituted destructive testing of thedecedent's body and that plaintiff should be sanctioned for deliberately failing to provide defendantwith any advance notice of the exhumation or the autopsy. On August 13, 2004, plaintiff responded,arguing that the defense had not made any request for an autopsy; the defense had not requested aprotective order to preserve the body; there was no discovery order in place that plaintiff violated;and there was no statute, case law, or supreme court rule that imposed an affirmative duty to notifythe defense that an autopsy would take place. Plaintiff concluded that the trial court could notsanction her because there was no discovery violation.

The parties briefed the motion, and on September 16, 2004, the trial court conducted ahearing on it. We note that the record on appeal does not contain a report of proceedings from theSeptember 16 hearing. The trial court's written order reflects only that defendant's motion to dismisswas denied but the motion for sanctions was granted. The written order also ordered that, as asanction, the introduction of the autopsy results and any evidence obtained from the autopsy wasbarred. On September 17, 2004, plaintiff moved the trial court for an order to certify the questionof law involved for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). On December 13, 2004, the trial court granted plaintiff's motion and certified the following questions:

"Whether an autopsy of the plaintiff's decedent performed during the pendency oflitigation was discovery";

"If the answer to the preceding question is in the affirmative, whether it is an abuseof discovery rules for a plaintiff to obtain an autopsy on the corpse of the plaintiff's decedentwithout notice to the defense"; and

"If the answer to each of the preceding questions is in the affirmative, whether barringintroduction of evidence obtained from such autopsy is an appropriate sanction."

During the pendency of this process, plaintiff filed an amended complaint on May 5, 2005, namingas additional defendants the hospital, the cardiologist, and Rockford Cardiology Associates, Ltd.

"This court's examination in an interlocutory appeal is strictly limited to the questions certifiedby the trial court and, as with all questions of law, is a de novo review." Thompson v. Gordon, 356Ill. App. 3d 447, 451 (2005), appeal allowed, No. 100600 (September 29, 2005). We will ordinarilynot expand the question under review to answer other questions that could have been included butwere not. Dearing v. Baumgardner, 358 Ill. App. 3d 540, 542 (2005), citing Jones v. City ofCarbondale, 217 Ill. App. 3d 85, 88 (1991). Our task is to answer the certified questions rather thanto rule on the propriety of any underlying order. P.J.'s Concrete Pumping Service, Inc. v. NextelWest Corp., 345 Ill. App. 3d 992, 998 (2004). "In the interests of judicial economy and reaching anequitable result, however, a reviewing court may go beyond the certified question[s] and consider theappropriateness of the order giving rise to the appeal." P.J.'s Concrete Pumping Service, 345 Ill.App. 3d at 998-99, citing Bright v. Dicke, 166 Ill. 2d 204, 208 (1995).

In the present case, the first question we are called upon to consider is whether the autopsyof plaintiff's decedent performed during the pendency of litigation was discovery. " 'Discovery' isdefined as 'the disclosure of facts, deeds, documents, or other things in the exclusive knowledge orpossession of one party, which are necessary to the party seeking discovery as part of a cause ofaction or defense in an action pending.' " Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 44-45(2001), quoting 27 C.J.S. Discovery