Sullivan v. Edward Hospital

Case Date: 11/27/2002
Court: 2nd District Appellate
Docket No: 2-01-0518 Rel

No. 2--01--0518


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


JUANITA SULLIVAN, Indiv. ) Appeal from the Circuit
and as Special Adm'r ) Court of Du Page County
of the Estate of Burns )
Sullivan, Deceased, )
)
           Plaintiff-Appellant,  )
)
v. ) No. 98--L--1145
)
EDWARD HOSPITAL and AMELIA )
CONTE-RUSSIAN, ) The Honorable
) Robert K. Kilander,
           Defendants-Appellees. ) Judge, Presiding.

JUSTICE BOWMAN delivered the opinion of the court:

On November 6, 1998, Burns Sullivan (now deceased) and hiswife, Juanita Sullivan, filed a medical malpractice action againstDr. Amelia Conte-Russian and Edward Hospital. The complaint soughtdamages for a fall Burns Sullivan (Burns) experienced whileresiding as a patient at Edward Hospital. Plaintiff asserted thatDr. Conte-Russian and Edward Hospital, through the actions of nurseCarrie Lewis, were negligent in the care and treatment of Burns. Plaintiff also filed a second count claiming Juanita Sullivansuffered loss of consortium as a result of defendants' negligenttreatment.

At trial, the court entered a directed verdict for defendantEdward Hospital after plaintiff's only medical expert was ruledincompetent to testify as to the standard of care for the nursingprofession. Thereafter, the court entered judgment on a juryverdict in favor of Dr. Conte-Russian.

Plaintiff subsequently appealed both the directed verdict forEdward Hospital and the jury verdict in favor of Dr. Conte-Russian. Plaintiff raises three issues on appeal, asserting that (1) thetrial court erred by ruling plaintiff's expert physician witnessincompetent to provide standard-of-care testimony regarding thenursing profession, (2) the trial court erred by giving the jurythe long-form version of Illinois Pattern Jury Instruction 12.05(Illinois Pattern Jury Instructions, Civil, No. 12.05 (2000)) onproximate cause, and (3) the jury verdict was against the manifestweight of the evidence.

BACKGROUND

The following evidence was revealed at trial. Dr. Conte-Russian had been the regular treating physician for Burns since1995 when he suffered a stroke. On November 1, 1997, Burns wasadmitted to Edward Hospital for treatment of a urinary tractinfection. While at Edward Hospital, Dr. Conte-Russian acted asthe primary treating physician. Burns's prior history of strokeshad left him in a deteriorated physical condition. He could notspeak, but he could understand others and respond with physicalgestures. Burns's 1995 stroke also resulted in paralysis to hisright side and impaired his ability to walk unassisted.

On the evening of November 2, 1997, nurse Carrie Lewis was onduty and acting as Burns's primary nurse. The entire evening Burnshad been in his bed. However, on three separate occasions between7 p.m. and 9:30 p.m., Nurse Lewis found Burns attempting to get outof the bed. After each of the first two instances, nurse Lewisfound Burns to be aware and able to understand her instructions tostay in bed. After the third occurrence, nurse Lewis becameconcerned about Burns's failure to follow instructions and that henow appeared to be agitated. Concerned about Burns's behavior andwanting to take further measures because Burns was considered afall risk, nurse Lewis phoned Dr. Conte-Russian at 9:30 p.m. andasked the doctor to order a posey vest to restrain Burns to hisbed. A posey vest is used to restrain a patient by placing thevest on the patient and then tying the vest straps to the bed.

Dr. Conte-Russian then advised nurse Lewis that a posey vestmight result in Burns becoming even more agitated. Instead, thedoctor decided to administer the drug Ativan to calm Burns down andhelp him sleep.

The Ativan, which was administered by nurse Lewis at 10 p.m.,was expected to last for a period of at least two hours. Between10 p.m. and 12 a.m., nurse Lewis and the nurse's aide checked onBurns approximately every half-hour. At about 12:10 a.m., nurseLewis found Burns lying on the floor of his hospital room with apool of blood around his head. Apparently, Burns had attempted toget up from his bed and walk. In his condition, he fell and struckhis head on the hospital room floor. As a result of the fall, hesuffered a subdural hematoma and was subsequently transferred toNorthwestern Memorial Hospital.

At trial, the plaintiff attempted to establish the liabilityof Edward Hospital vicariously through the actions of nurse Lewis. Plaintiff called Dr. William Barnhart to testify as her medicalexpert. Dr. Barnhart is a board-certified physician specializingin internal medicine and has substantial experience in working withdoctors and nurses in patient fall protection. Plaintiff intendedfor Dr. Barnhart to testify to the applicable standards of care forphysicians and nurses and the subsequent failure of both Dr. Conte-Russian and nurse Lewis to meet their respective standards of care.

Dr. Barnhart testified to the standard of care for a licensednurse and the instances in which nurse Lewis deviated from thestandard of care. Those instances included nurse Lewis's failureto properly communicate Burns's condition to Dr. Conte-Russianduring their phone conversation and her failure to adhere to propernursing procedures in the care and treatment of a patient. Thecourt struck the testimony relating to nurse Lewis's communicationswith Dr. Conte-Russian as a violation of Supreme Court Rule 213(g)(177 Ill. 2d R. 213(g)) because Dr. Barnhart's opinions on thisissue were not properly disclosed during pretrial discovery. Thecourt then struck the rest of Dr. Barnhart's testimony relating tothe nursing standard of care and nurse Lewis's deviations on thegrounds that a physician is incompetent to testify to the standardof care placed upon a licensed nurse.

ANALYSIS

I. The Competency of Plaintiff's Physician Expert

Medical malpractice suits require that the plaintiff establishthe standard of care through the testimony of a medical expert. Dolan v. Galluzzo, 77 Ill. 2d 279, 281 (1979). We review de novothe issue of a physician's competency to testify to the standard ofcare for a nurse. In re Estate of Rennick, 181 Ill. 2d 395, 401(1998).

The general rule in Illinois as originally established by theIllinois Supreme Court in Dolan states that, in order to testify tothe standard of care for a particular school of medicine, theexpert witness must be licensed within that school of medicine.Dolan, 77 Ill. 2d at 285. The Dolan court held that an orthopedicsurgeon was not competent to testify to the standard of careapplicable to a podiatrist because the podiatrist belonged to aunique school of medicine of which the surgeon was not a licensedmember. After recognizing that the legislature had provideddistinct licensing and regulatory schemes, the court stated:

"We simply are not disposed to provide for what, in effect,may result in a higher standard of care when the legislature,by recognizing various schools of medicine, has not done so. To do so would not only be unfair to podiatrists (i.e., toallow practitioners of other schools to testify regarding thestandard of care podiatrists owe), but it would also assumethat science and medicine have achieved a universal standardof treatment of disease or injury. Such is not the case."Dolan, 77 Ill. 2d at 284.

Dolan has subsequently been construed to require an expertphysician to meet a two-part test to establish the physician'squalifications and competency to testify. "First, the physicianmust be a licensed member of the school of medicine about which heproposes to testify. [Citation.] Second, 'the expert witness mustshow that he is familiar with the methods, procedures, andtreatments ordinarily observed by other physicians, in either thedefendant physician's community or a similar community.' " Jonesv. O'Young, 154 Ill. 2d 39, 43 (1992), quoting Purtill v. Hess, 111Ill. 2d 229, 243 (1986). If the expert physician fails to meeteither of these foundational requirements, the trial court mustdisallow the testimony. Jones, 154 Ill. 2d at 44.

The plaintiff in the case at bar cites Wingo v. RockfordMemorial Hospital, 292 Ill. App. 3d 896 (1997), as an exception tothe general rule that a physician must be a licensed member of thesame school of medicine to give testimony as an expert. Theplaintiff argues that if Wingo is applied to the present facts Dr.Barnhart should be allowed to testify to the standard of careapplicable to nurse Lewis.

Wingo involved a situation in which three physicians testifiedthat an obstetrical nurse violated the applicable nursing standardof care by failing to properly communicate the condition of apatient to the treating physician. Wingo, 292 Ill. App. 3d 896. The physicians opined that the nurse's deviation from the standardof care resulted in a baby being born with brain damage. Wingo,292 Ill. App. 3d at 903.

The court in Wingo found that the rationale presented in Dolanfor requiring that an expert physician be a licensed member of thesame school of medicine did not apply. Wingo, 292 Ill. App. 3d at906. The court determined that the supreme court's concernsregarding the imposition of a higher standard of care and theassurance that the expert physician possess the requisite expertisewere not being sacrificed because the testimony concernedcommunications a doctor can expect to rely on from a nurse and notactual nursing procedures. The court in Wingo stated as follows:

"In the instant case, the allegations of negligence againstnurse Welden did not concern a nursing procedure but, rather,related to what a nurse is required to communicate to aphysician about what transpired since the physician last sawthe patient. As such the allegations of negligence do notconcern an area of medicine about which there would be adifferent standard between physician and another school ofmedicine. Furthermore, it was established that theallegations of negligence were well within the testifyingdoctors' knowledge and experience. We believe that aphysician should be entitled to testify about what he or she[should be] entitled to rely upon in the area of communicationfrom a nurse in the context of an obstetrical team renderingcare to a patient in a hospital." Wingo, 292 Ill. App. 3d at906.

In the case at bar, Dr. Barnhart's testimony included opinionsrelating to "what a nurse is required to communicate to aphysician" (Wingo, 292 Ill. App. 3d at 906) and nursing procedures. Dr. Barnhart testified that all of the following were deviationsfrom the applicable standard of care for nursing professionals: (1)nurse Lewis failed to adequately communicate with Dr. Conte-Russianduring their phone conversation; (2) after nurse Lewis failed toget Dr. Conte-Russian's approval to use a posey vest on Burns, sheshould have gone up the nursing chain of command to address herconcerns that Burns would attempt to get out of bed; and (3) nurseLewis failed to provide for an alternative to the posey vest toprotect against the risk of a fall.

The court struck all of Dr. Barnhart's testimony relating todoctor-nurse communications as a violation of Supreme Court Rule213(g) because plaintiff failed to disclose these opinions inpretrial discovery.

Plaintiff argues that the court erred in excluding Dr.Barnhart's doctor-nurse communication opinions because the opinionswere within the fair scope of opinions that were disclosed to thedefendant. We hold otherwise. Under Rule 213(g), a party mustdisclose the subject matter on which the expert witness willtestify, all conclusions and opinions, and his or herqualifications. 177 Ill. 2d R. 213(g). Disclosure is mandatoryand must be adhered to on a strict basis. Seef v. Ingalls MemorialHospital, 311 Ill. App. 3d 7, 21 (1999). The admission of suchevidence is within the discretion of the trial court, whosedecision should not be disturbed absent an abuse of discretion. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537(1998). In the present case, it is not an abuse of the court'sdiscretion to bar testimony about the standard of care relating todoctor-nurse communications when such opinions were neverpreviously disclosed to defendant Edward Hospital. See Susnis v.Radfar, 317 Ill. App. 3d 817, 829 (2000) (no abuse of discretionoccurs when a court bars expert's testimony after a party fails tomake a Rule 213 disclosure for expert physician testimony regardingthe relevant standard of care).

Because we have upheld the trial court's Rule 213(g) ruling,we are left to consider Dr. Barnhart's testimony relating tonursing procedures. The testimony relating to nursing proceduresincludes (1) nurse Lewis's failure to pursue her concern that Burnswas a fall risk by bringing the problem to a higher authority inthe nursing chain of command and (2) her failure to provide for analternative to the posey vest to protect against a fall. Werecognize the close relationship shared by a doctor and nurseworking in a hospital setting and that in many instances a doctormay direct the actions of a nurse. As Justice Ward stated in hisDolan dissent, "[u]nder [this] holding a physician would be unableto testify to nursing standards even though nurses operated underhis supervision or to testify to standards for midwives, and thisbecause the physician was not licensed as a nurse or a midwife." Dolan, 77 Ill. 2d at 286. However, when we consider the standardof care applicable to nursing procedures in light of the supremecourt's license requirements and the concerns those licenserequirements address, we find that the current facts do not merita deviation from the license requirement.

Under the Illinois Nursing Act of 1987 (225 ILCS 65/1 through49 (West 1996)) (Act), the legislature has set forth a uniquelicensing and regulatory scheme for the nursing profession. TheAct establishes nursing as a unique school of medicine. See Dolan,77 Ill. 2d at 284 (the legislature has made a clear indication thatnursing is a distinct school of medicine). Dr. Barnhart is not alicensed member of the nursing profession. To allow the doctor totestify as to the standard of care applicable to the nursingprofession implicates the risks raised by Dolan, namely, theimposition of a higher standard of care and the muddling and mixingof various tenets and practices unique to each profession. Therefore, we affirm the trial court's ruling on the competency ofDr. Barnhart to testify to the standard of care for nursingprofessionals.

The real issue for review is whether Edward Hospital's motionfor a directed verdict was properly granted by the court. A reviewof a directed verdict is de novo. Susnis, 317 Ill. App. 3d at 825. A directed verdict will be upheld where "all of the evidence, whenviewed in its aspect most favorable to the opponent, sooverwhelmingly favors movant that no contrary verdict based on thatevidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co.,37 Ill. 2d 494, 510 (1967).

Medical malpractice suits require the plaintiff to establishthe standard of care through the testimony of a medical expert.Dolan, 77 Ill. 2d at 281. In the present case, plaintiff failed toestablish the applicable standard of care relevant to nurse Lewis. The only evidence offered by plaintiff on this issue was thetestimony of Dr. Barnhart, which was properly struck by the court. Thus, the plaintiff failed to establish a prima facie case ofnegligence against nurse Lewis and Edward Hospital.

The court appropriately determined as a matter of law thatthere was no evidentiary basis out of which the jury could haveconstrued the necessary facts essential to recovery. Jones, 154Ill. 2d at 47. Therefore, we affirm the trial court's directedverdict in favor of Edward Hospital.

II. Jury Instructions on Proximate Cause

Plaintiff next contends that the trial court erred by givingthe jury the long-form proximate cause instruction from IllinoisPattern Jury Instructions, Civil, No. 12.05 (2000) (herinafter IPICivil (2000) No. 12.05)). The trial court believed that there wassufficient evidence for the jury to properly consider thatsomething other than the actions of Dr. Conte-Russian may havebeen the sole proximate cause of the injuries to Burns.

The parties have the right to have the jury clearly and fairlyinstructed upon each theory that was supported by the evidence. Leonardi v. Loyola University, 168 Ill. 2d 83, 100 (1995). Thesole proximate cause instruction requires that there be someevidence to justify giving the instruction. McDonnell v.McPartlin, 192 Ill. 2d 505, 515 (2000). The trial court retainsthe discretion to decide which instructions to give to a jury, andthat decision should not be disturbed absent an abuse ofdiscretion. In re Nancy M., 317 Ill. App. 3d 167, 173 (2000). Ajury is considered to have been properly instructed by the trialcourt after the jurors have been fairly, fully, and comprehensivelyinformed as to the relevant principles, considering theinstructions in their entirety. Leonardi, 168 Ill. 2d at 100.

The notes on use under IPI Civil (2000) No. 12.05 state thatthe long-form version "should be used only where there is evidencetending to show that the sole proximate cause of the occurrence wassomething other than the conduct of the defendant." IPI Civil(2000) No. 12.05, Notes on Use, at 58. In the present case, thetrial produced some evidence to support giving the long-formversion of IPI Civil (2000) No. 12.05. First, evidence wasintroduced that Burns was the sole proximate cause of his owninjuries because he failed to follow nurse Lewis's instructions tostay in bed or call if he needed assistance. Second, testimony wasintroduced that the nurses had discretion to administer additionalmedication as needed in their judgment but failed to do so.

Plaintiff asserts in part that because defendant Conte-Russian failed to plead contributory negligence or tender an expert'stestimony alleging some other proximate cause besides the conductof Dr. Conte-Russian, the long-form instruction on sole proximatecause was improper. In response, we note that negligent conductand proximate cause are distinct, albeit related, concepts. McDonnell, 192 Ill. 2d at 522. "[I]n the context of a medicalnegligence case, the sole proximate cause instruction requires onlythat the defendant present some evidence that the nondefendant isthe sole proximate cause of the plaintiff's injury. It is notnecessary that the defendant also establish that the nondefendant'sconduct was medically negligent." McDonnell, 192 Ill. 2d at 516. Every injury need not proceed from a negligent cause. McDonnell,192 Ill. 2d at 522. Consequently, the jury need only be presentedwith some evidence of another proximate cause to justify the use ofthe long-form instruction.

In the present case, we find that the trial court did notabuse its discretion by finding that there was some evidence tojustify giving the long-form instruction on the issue of the soleproximate cause to the jury. In the presence of some evidenceconcerning Burns's own failure to follow the instructions of nurseLewis and the failure of the nurses to properly administermedication on an as-needed basis, the long-form version of IPICivil (2000) No. 12.05 fairly, fully, and comprehensively informedthe jury as to the relevant principles on the issue of soleproximate cause. Leonardi, 168 Ill. 2d at 100.

III. The Propriety of the Jury Verdict in Favor of Dr. Conte-Russian

Finally, plaintiff contends that the jury verdict was againstthe manifest weight of the evidence. On this issue, plaintiffargues that the jury was presented with an expert's undisputedtestimony on two issues: (1) Dr. Conte-Russian's failure to assessBurns as a fall risk and take appropriate action and (2) whetherthe use of Ativan increased the risk that Burns would fall andinjure himself.

A reviewing court should set aside a jury verdict where itdetermines that the verdict is contrary to the manifest weight ofthe evidence. Johnson v. Chicago Transit Authority, 248 Ill. App.3d 91, 94 (1993). However, a jury verdict should stand if there issufficient credible evidence to support it. Johnson, 248 Ill. App.3d at 94. Hence, we will not disturb a jury verdict unless thereis no evidence that fairly tends to support the verdict. LyonMetal Products, L.L.C. v. Protection Mutual Insurance Co., 321 Ill.App. 3d 330, 347 (2001).

We find that there is sufficient evidence to uphold the juryverdict. While plaintiff argues there is undisputed testimony froman expert on two points of asserted negligence against Dr. Conte-Russian, we find that plaintiff's points of contention were eitherthe subject of an expert's disputed testimony or not actuallybefore the jury for deliberation.

Plaintiff's first contention is that there was undisputedtestimony against Dr. Conte-Russian that "[her] abject failure toassess Burns Sullivan as a fall risk, and take actions accordingly"amounts to negligence. However, during the reading of theinstructions to the jury, the trial court stated as follows:

"The plaintiffs Burns Sullivan and Juanita Sullivan claimedthat they were injured and sustained damage, and that thedefendant Dr. Amelia Conte-Russian was negligent in one ormore of the following respects. A, failed to order a sitter;B, failed to order a posey vest or physical restraint; C,failed to have Burns Sullivan properly monitored; D,improperly prescribed Ativan."

The failure of Dr. Conte-Russian to assess Burns as a fallrisk was not one of the grounds upon which the jury could havefound her liable because it was not submitted as an issue beforethe jury. Therefore, it cannot be found as a basis to reverse thejury verdict.

However, plaintiff's assertion that Dr. Conte-Russian failedto "take appropriate action" in light of Burns's physical conditionclearly falls under the four issues placed before the jury. Therecord also clearly shows that Dr. Allen Muehrcke, testifying forDr. Conte-Russian, addressed all four issues. Dr. Muehrcke opinedthat Dr. Conte-Russian met the applicable standard of care inregard to (1) ordering a sitter, (2) ordering a posey vest orphysical restraints, (3) properly monitoring Burns, and (4)properly prescribing Ativan.

Plaintiff's second point of contention, that "theadministration of Ativan, instead of adequately alleviating thefall risk, increased the risk of fall and injury," was alsoaddressed by Dr. Muehrcke. Once again, Dr. Muehrcke opined thatunder the circumstances Dr. Conte-Russian met the applicablestandard of care when she prescribed Ativan.

We find that the jury verdict should stand because there issufficient credible evidence to support it. We are not persuadedby plaintiff's attempt to reshape or restate the issues presentedto the jury. The jury verdict is entitled to respect anddeference, and we will not invade the function of the jury andsubstitute its judgment with our own. Aldridge v. Morris, 337 Ill.App. 369, 374 (1949). Thus, we affirm the jury verdict in favor ofDr. Conte-Russian.

Conclusion

For the aforementioned reasons, we (1) affirm the trialcourt's directed verdict in favor of defendant Edward Hospital, (2)affirm the trial court's decision to use the long-form version ofIPI Civil (2000) No. 12.05, and (3) affirm the jury verdict infavor of defendant Dr. Conte-Russian.

Affirmed.

HUTCHINSON, P.J., and GEIGER, J., concur.