Gallina v. Watson

Case Date: 12/20/2004
Court: 4th District Appellate
Docket No: 4-04-0244 Rel

 

NO. 4-04-0244

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

VITO GALLINA,
                      Plaintiff-Appellant,
                      v.
DR. MICHAEL WATSON and MEMORIAL
MEDICAL CENTER,
                      Defendants-Appellees.
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Appeal from
Circuit Court of
Sangamon County
No. 99L78

Honorable
Donald M. Cadagin,
Judge Presiding.


JUSTICE KNECHT delivered the opinion of the court:

In January 2004, a jury found in favor of defendants,Dr. Michael Watson and Memorial Medical Center (Memorial), in amedical malpractice action filed by plaintiff, Vito Gallina. Gallina appeals, arguing the trial court erred by (1) grantingDr. Michael Watson and Memorial's motion in limine regarding thetestimony of a defense expert witness and (2) refusing to allowplaintiff's exhibit No. 9 to be taken into the jury room duringdeliberations. We reverse and remand.

I. BACKGROUND

On March 9, 1997, Vito Gallina was injured in a head-onvehicle collision at over 85 miles per hour. Gallina fracturedhis jaw, left femur, pelvis, hand, and both ankles. Gallina alsoruptured his spleen and suffered a loss of blood.

Gallina was taken to Memorial in Springfield fortreatment. Dr. Michael Watson was on call the night of theaccident and responded at Memorial. Multiple specialists,including Dr. Watson, treated Gallina after the accident. Dr.Watson treated the fracture of Gallina's talus bone by immobilizing the fracture with a splint. Dr. Watson testified he did notoperate on Gallina's right ankle because it was acceptable not todo so and another surgery could have threatened Gallina's lifedue to the multiple surgeries already performed that night.

In March 1999, Gallina filed a complaint against Dr.Watson and Memorial. In January 2001, Gallina filed a three-count second-amended complaint against Dr. Watson and Memorial. Count I alleged Dr. Watson was negligent in his treatment ofGallina. Count II alleged Memorial was responsible for Dr.Watson's negligence based on agency. Count III alleged Memorialwas responsible for Dr. Watson's negligence based on apparentagency.

In September 2003, Memorial filed a motion for summaryjudgment on count II of Gallina's second-amended complaint. Therecord does not reflect the trial court ever ruled on thismotion. Memorial did not file a motion for summary judgment oncount III of Gallina's second-amended complaint.

In January 2004, Dr. Watson filed a motion in limine toexclude testimony relating to Dr. Joseph Whalen's personalpreferences for treating different types of fractures. Laterthat month, Memorial joined in Dr. Watson's motion in limine. After hearing arguments on the motion in limine, the trial courtallowed the motion. As a result, the following testimony wasdeleted from the videotaped evidence deposition of Dr. Whalen:

"[MR. VERTICCHIO (plaintiff's counsel):]Would you be of the opinion that this type ofcontroversial decision should have been discussed with the patient being allowed to makethe decision as to what treatment he wouldopt for?

MR. KOKAL [(defense counsel)]: We stillhave our objection beyond the scope.

[MR. VERTICCHIO:] I understand you believe that. I don't necessarily agree withit.

[DR. WHALEN:] Well, I can't say what Dr.Watson did or said. I would present to thepatient that it's this type of fracture. Ifyou follow the instructions well, you do whatI say, we won't need to do surgery. Surgeryis an option. It carries its own risks suchas further interfering with the blood supply. The healing potential is not really too muchdifferent between nonoperative and operativetreatment with [t]ype I fractures. Like Isaid, it's the experience of the surgeon, andit's a controversial area. I tend to be onethat fixes them.

[MR. VERTICCHIO:] Thank you, Doctor. Nofurther questions. Fix them--excuse me. Fixthem by open reduction?

[DR. WHALEN:] All Type IIs, Type Is Imay treat nonoperatively."

According to the testimony of Dr. Watson, he agreed with his resident's assessment in the preoperative diagnosissection of the operative report that Gallina had a type IIfracture.

During the trial, Gallina introduced as evidence thewritten opinion disclosures of another of defendants' expertwitnesses, Dr. Vilray Blair. Gallina asked the trial court toallow these disclosures, plaintiff's exhibit No. 9, to be takenby the jury into the jury room during its deliberations. Thecourt denied this request.

The jury found against Gallina and for Dr. Watson andMemorial.

Gallina appeals.

II. ANALYSIS

Gallina argues the trial court erred by (1) allowingDr. Watson and Memorial's motion in limine deleting the portionof Dr. Whalen's evidence deposition regarding his personaltreatment preferences and (2) denying Gallina's request to sendplaintiff's exhibit No. 9 into the jury room during the jury'sdeliberations.

Memorial argues if we reverse and remand this case tothe trial court, we should determine whether Dr. Watson was anostensible agent of Memorial.

A. Motion in Limine

The first question before this court is whether thetrial court erred in allowing Dr. Watson and Memorial's motion inlimine. Gallina argues the exclusion of the portion of Dr.Whalen's evidence deposition regarding the doctor's personaltreatment preferences denied Gallina the right to challenge Dr.Whalen's credibility concerning his opinions expressed in favorof Dr. Watson.

"A trial judge has discretion in granting a motion inlimine and a reviewing court will not reverse a trial court'sorder allowing or excluding evidence unless that discretion wasclearly abused." Swick v. Liautaud, 169 Ill. 2d 504, 521, 662N.E.2d 1238, 1246 (1996).

Defendants argue the trial court did not abuse itsdiscretion in granting defendants' motion in limine becauseevidence of a physician's personal preference is irrelevant. They also argue the excluded testimony does not challenge thecredibility of Dr. Whalen's opinion, i.e., that Dr. Watson didnot violate the standard of care in his treatment of plaintiff.

1. Relevance

Defendants cite the Supreme Court of Illinois's decision in Walski v. Tiesenga, 72 Ill. 2d 249, 381 N.E.2d 279(1978), to support their argument regarding the relevance of aphysician's personal preferences. Defendants rely on the following language from Walski:

"It is insufficient for [the] plaintiffto establish a prima facie case merely topresent testimony of another physician thathe would have acted differently from thedefendant, since medicine is not an exactscience. It is rather a profession whichinvolves the exercise of individual judgmentwithin the framework of established procedures. Differences in opinion are consistentwith the exercise of due care." Walski, 72Ill. 2d at 261, 381 N.E.2d at 285.

While we agree with the supreme court, Walski is distinguishablefrom this case.

In Walski, the plaintiff failed to present evidenceshowing the standard of care to which the defendants were boundto adhere. According to the supreme court:

"Plaintiff's expert *** testified only concerning his own personal preference for isolating the laryngeal nerve under the factspresented to him in the hypothetical question. He at no time testified that there wasa generally accepted medical standard of careor skill which required the identification ofthe laryngeal nerve under the circumstances." Walski, 72 Ill. 2d at 259, 381 N.E.2d at 284.

In the instant case, Gallina was not attempting toestablish his prima facie case with the testimony of defendants'expert, Dr. Whalen. Plaintiff Gallina's own expert witnessestablished plaintiff's prima facie case.

Defendants also cite Stevenson v. Nauton, 71 Ill. App.3d 831, 390 N.E.2d 53 (1979), and Mazzone v. Holmes, 197 Ill.App. 3d 886, 557 N.E.2d 186 (1990). Defendants point to thefollowing language from Stevenson in support of their argument:

"The expert's statements as to what hewould have done in the situation encounteredby Dr. Nauton are irrelevant since the issuebefore the trial court was whether the defendant acted contrary to accepted or customarymedical standards at that time and place." Stevenson, 71 Ill. App. 3d at 835, 390 N.E.2dat 56.

This statement, when read alone, would appear to support defendants' position. However, when the statement is read in thecontext of the entire decision, it does not.

In Stevenson, the plaintiff was appealing from a trialcourt's order granting summary judgment for defendant because theplaintiff failed to "make out a prima facie case as to theacceptable standard of care against which the defendant physicianwas to be measured." Stevenson, 71 Ill. App. 3d at 833, 390N.E.2d at 55. Plaintiff's expert testified as to what he mighthave done if he had been consulted by the plaintiff under thesame circumstances presented to the defendant. However, theplaintiff's expert also testified "he could not form a definiteopinion as to whether [the defendant's] treatment of the plaintiff was below acceptable medical standards." Stevenson, 71 Ill.App. 3d at 833, 390 N.E.2d at 55. Taken in context, we find theappellate court was only saying the plaintiff's expert's statements about what he would have done were not relevant in establishing plaintiff's prima facie case.

As we stated above, in the instant case, plaintiff wasnot attempting to use Dr. Whalen's testimony to establish hisprima facie case. Plaintiff used his own expert witness toestablish his prima facie case. As a result, the instant case isdistinguishable from Stevenson.

In Mazzone, the First District Appellate Court statedas follows:

"On the issue of whether the defendant deviated from the standard of care, an expert'sstatements as to what he would have done arenot relevant because differences in opinionare consistent with conformity to the applicable standard." Mazzone, 197 Ill. App. 3dat 898, 557 N.E.2d at 193.

Mazzone appears to say an expert's statements as to what he orshe would have done are never relevant. In reading this conclusion, we conclude the Mazzone court unjustifiably stretched theholdings in both Walski and Stevenson, on which the Mazzone courtsolely relied and which we have already distinguished from thecase at bar.

In arguing the trial court erred in granting defendants' motion in limine, plaintiff Gallina relies on languagefrom this court's decision in Rush v. Hamdy, 255 Ill. App. 3d352, 627 N.E.2d 1119 (1993). In Rush, the plaintiffs argued thetrial court erred in not allowing them to ask the defendants'expert witness whether he would have personally used a "Savary"dilator in treating the plaintiff instead of an achalasia balloon. Rush, 255 Ill. App. 3d at 362, 627 N.E.2d at 1125. Defendants' expert testified the use of an achalasia balloon waswithin the acceptable standard of care. Rush, 255 Ill. App. 3dat 362, 627 N.E.2d at 1125-26. However, at his deposition,defendants' expert testified if plaintiff had been his patient,he would have treated her with a "Savary" dilator. Rush, 255Ill. App. 3d at 362, 627 N.E.2d at 1126. The plaintiffs in Rushmade the following argument:

"[T]here is a difference in the persuasivevalue of an expert witness who testifies acertain procedure is within the standard ofcare and is the procedure which the experthimself would have used under the same circumstances and an expert who testifies acertain procedure is within the standard ofcare, but that he would not have utilizedthat procedure under the same circumstances." Rush, 255 Ill. App. 3d at 362, 627 N.E.2d at1126.

This court agreed but found the trial court did not abuse itsdiscretion in not allowing this line of inquiry because the trialcourt had allowed the plaintiffs to elicit testimony from thedefendants' expert "that he had never used an achalasia balloonto dilate a Schatzki's ring, and in all of his years of practice[the defendant doctor's] treatment of [the plaintiff] was theonly case he knew of in which an achalasia balloon had been usedto dilate a Schatzki's ring." (Emphasis omitted.) Rush, 255Ill. App. 3d at 363, 627 N.E.2d at 1126. According to thiscourt, "[t]his testimony sufficiently tested the credibility of[the defendants' expert's] opinion that the use of an achalasiadilator was within the acceptable standard of care to the jury." Rush, 255 Ill. App. 3d at 363, 627 N.E.2d at 1126.

While we agree with defendants a plaintiff cannotestablish a prima facie case of medical negligence based solelyon the testimony of another physician that he or she would havedone things differently, we disagree with defendants' argumentthat a expert medical witness's personal preferences are alwaysirrelevant. In this case, the excluded portion of Dr. Whalen'stestimony is relevant because it affects the persuasive value ofDr. Whalen's opinions as discussed below.

2. Credibility

Defendants also argue Dr. Whalen's excluded testimonythat he always treats type II fractures by open reduction is notinconsistent with his testimony opining Dr. Watson did notviolate the standard of care by treating plaintiff's fracturewithout surgery because Dr. Whalen identified plaintiff's fracture as a type I fracture. However, this ignores the fact Dr.Watson testified at trial he did not disagree with his resident'sassessment in the preoperative diagnosis section of the operativereport that Gallina had a type II fracture of the talus. Further, Dr. Watson also admitted he was of the opinion Gallina hada type II talar fracture when he saw an X ray of plaintiff'sankle on the night of the accident.

If no evidence suggested Dr. Watson believed Gallinahad a type II fracture when he treated Gallina on the night ofthe accident, defendants would be correct in asserting Dr.Whalen's testimony he always treats type II fractures by openreduction would be irrelevant. However, Dr. Watson testified hediagnosed Gallina as having a type II fracture on the night ofthe accident. As a result, Dr. Whalen's testimony he alwaysperforms open reductions on type II fractures is relevant becauseDr. Watson testified he believed he was dealing with a type IIfracture when he chose not to operate on plaintiff.

While Dr. Whalen's excluded testimony far from provesDr. Watson breached the standard of care by not performing anopen reduction on plaintiff, Dr. Whalen's excluded testimony goesto the credibility and persuasive value of his opinion Dr.Watson's actions were within the standard of care.

We find the trial court abused its discretion inexcluding this testimony from the jury as it is relevant and affects the credibility and persuasive value of Dr. Whalen'sopinion Dr. Watson acted within the standard of care.

B. Plaintiff's Exhibit No. 9

The second question before this court is whether thetrial court erred in denying plaintiff Gallina's request for thejury to take plaintiff's exhibit No. 9, Dr. Blair's writtenopinion disclosures, into the jury room during its deliberations.

According to section 2-1107(d) of the Code of CivilProcedure (Code), "[p]apers read or received in evidence, otherthan depositions, may be taken by the jury to the jury room foruse during the jury's deliberations." 735 ILCS 5/2-1107(d) (West2002). "The decision whether to send exhibits to the jury roomis within the trial court's sound discretion, and a reviewingcourt will not disturb that decision absent an abuse of discretion that prejudices a party." Van Winkle v. Owens-CorningFiberglas Corp., 291 Ill. App. 3d 165, 176, 683 N.E.2d 985, 993(1997).

We find the trial court abused its discretion in notallowing plaintiff's exhibit No. 9 to go to the jury room. Noneof the parties in their respective briefs identified the locationin the record of the parties' arguments on whether plaintiff'sexhibit No. 9 should go to the jury room. Memorial states in itsbrief the court did not allow the exhibit to go to the jury roombecause it would place more emphasis on that exhibit than theother pieces of evidence. Memorial also states in its brief theexhibit contained many irrelevant opinions.

We agree trial courts have a wide range of discretion in deciding what will be sent to the jury room. However, based on the facts in this case, we find the court abused its discretion in not allowing plaintiff's exhibit No. 9 to go to the jury room. This exhibit would have been of assistance to the jury in assessing Dr. Blair's testimony. We disagree with Memorial when it argues sending plaintiff's exhibit No. 9 to the jury would have overemphasized that piece of evidence; the court sent all of the other exhibits to the jury room. By not sending plaintiff's exhibit No. 9 to the jury room, the court diminished this piece of evidence.

C. Ostensible Agency

Memorial argues if we remand this case to the trialcourt, we must decide whether Dr. Watson was an ostensible agentof Memorial. Ostensible or apparent agency is the basis forcount III of Gallina's second-amended complaint. From therecord, it does not appear Memorial ever filed a motion forsummary judgment on count III of Gallina's second-amended complaint. As a result, the trial court never had an opportunity torule on this issue. We will not rule on this issue until thetrial court has had an opportunity to do so. Memorial is free toraise this issue with the court on remand.

III. CONCLUSION

For the reasons stated, we reverse and remand this caseto the trial court.

Reversed and remanded.

COOK, P.J., and MYERSCOUGH, J., concur.