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Docket No. 95409-Agenda 9-November 2003.

JUANITA SULLIVAN, Indiv. and as Special Adm'r of the Estate of
Burns Sullivan, Deceased, Appellant, v. EDWARD HOSPITAL et al., Appellees.

Opinion filed February 5, 2004.
 

JUSTICE FREEMAN delivered the opinion of the court:

Plaintiff, Juanita Sullivan, individually and as special administrator ofthe estate of Burns Sullivan (Burns), brought a medical malpractice actionin the circuit court of Du Page County. Plaintiff named as defendantsEdward Hospital (the hospital) and Dr. Amelia Conte-Russian. Plaintiffclaimed that the hospital, through one of its nurses, and Dr. Conte-Russianwere negligent in the care and treatment of Burns. The trial court entereda directed verdict for the hospital after plaintiff's only medical expert wasruled incompetent to testify as to the standard of care for the nursingprofession. The trial court subsequently entered judgment on a jury verdictin favor of Dr. Conte-Russian.

The appellate court affirmed. 335 Ill. App. 3d 265. We allowedplaintiff's petition for leave to appeal (177 Ill. 2d R. 315(a)), and nowaffirm the appellate court.

BACKGROUND

The record reveals the following pertinent facts. In March 1995,Burns suffered a second stroke, which resulted in partial paralysis to hisright side, impairing his ability to walk independently. Also as a result ofthe stroke, Burns could not speak, but could understand others andrespond with physical gestures. Since March 1995, Dr. Conte-Russian,a general internist, had been Burns' regular treating physician.

On November 1, 1997, Burns, then 74 years old, was admitted tothe hospital for treatment of a urinary tract infection. While at the hospital,Dr. Conte-Russian was Burns' primary care physician. The hospitalcategorized a patient's risk of falling between two levels. A patient whohas no impairments of any kind is characterized as a level I fall risk. Apatient who has any physical or mental impairments that increase the riskof falling is characterized as level II. Because of Burns' history of partialparalysis, he was characterized as level II.

On the evening of November 2, 1997, nurse Carrie Lewis wasBurns' primary nurse. Burns had been in his bed, equipped with four siderails, all of which were raised. Between 7 p.m. and 9:30 p.m., nurse Lewiswent into Burns' room and found Burns attempting to get out of bedthrough the side rails. After each of the first two occurrences, nurse Lewisfound Burns to be alert, oriented, and able to understand her instructionsto stay in bed. After the third occasion, Burns still appeared alert andoriented. However, nurse Lewis became concerned because of Burns'failure to follow instructions and because Burns now appeared to beagitated. Nurse Lewis was concerned that Burns might again attempt toget out of bed and that he could fall if he did so.

Based on these concerns, nurse Lewis telephoned Dr. Conte-Russianat approximately 9:30 p.m. and asked the doctor to order a "posey vest"to restrain Burns to his bed. A posey vest is used to restrain a patient byplacing the vest on the patient and then tying the vest straps to the bed. Dr.Conte-Russian advised nurse Lewis that a posey vest might result in Burnsbecoming even more agitated. Rather than using a physical restraint, Dr.Conte-Russian ordered the administration of the drug Ativan to calmBurns and help him sleep. Dr. Conte-Russian prescribed a very smalldosage and left it to nurse Lewis' discretion to administer more Ativan ifneeded.

At approximately 10 p.m., nurse Lewis administered to Burns onemilligram of Ativan, which was expected to last for at least two hours.Between 10 p.m. and midnight, nurse Lewis and a nurse's aide checkedon Burns approximately every half hour. By 10:30 p.m. Burns was asleep;he was sleeping at each half-hour check. At approximately 12:05 a.m., anurse's aide walked past Burns' room and looked inside; Burns appearedto be sleeping. At 12:10 a.m., a monitor technician heard a noise in thearea of Burns' room and so informed nurse Lewis. Upon receiving thisreport, nurse Lewis ran to Burns' room and found him on the floor withhis head bleeding from a cut above his left eye. Apparently, Burns hadattempted to get up from his bed and walk; however, he fell and struck hishead on the hospital room floor. As a result of the fall, Burns developeda subdural hematoma, for which he received treatment. At the request ofhis family, Burns was subsequently transferred to another hospital.

On November 6, 1998, plaintiff and Burns filed a two-countcomplaint against the hospital and Dr. Conte-Russian. The complaintalleged that the hospital, through nurse Lewis, and Dr. Conte-Russian,failed to properly monitor, medicate, or restrain Burns. In count I, Burnssought damages for injuries proximately caused by defendants' negligence.In count II, plaintiff sought damages for loss of consortium. In September1999, Burns died of a third stroke, which was unrelated to plaintiff'sallegations of negligence. On December 28, 1999, Burns' death wasformally reported to the trial court; plaintiff was appointed specialadministrator of Burns' estate and substituted as the sole plaintiff.

At trial, plaintiff attempted to establish the hospital's liabilityvicariously through the actions of nurse Lewis. Plaintiff called Dr. WilliamBarnhart to testify as her medical expert. Dr. Barnhart is a board-certifiedphysician specializing in internal medicine and has substantial experiencein observing and working with physicians and nurses in the area of patientfall protection. Plaintiff intended for Dr. Barnhart to testify to theapplicable standards of care for physicians and nurses, and the failure ofboth Dr. Conte-Russian and nurse Lewis to meet their respectivestandards of care.

Dr. Barnhart testified as to the standard of care for a licensed nurseand the instances in which nurse Lewis deviated from the standard of care.According to Dr. Barnhart, one such instance included nurse Lewis'failure to properly communicate Burns' condition to Dr. Conte-Russianduring their phone conversation. The trial court found that plaintiff did notproperly disclose Dr. Barnhart's opinion on this issue during pretrialdiscovery, in violation of Supreme Court Rule 213(g) (177 Ill. 2d R.213(g)). Therefore, the trial court struck the testimony relating to nurseLewis' communications with Dr. Conte-Russian.

According to Dr. Barnhart, nurse Lewis deviated from the standardof care for a licensed nurse also by her failure to adhere to proper nursingprocedures in the care and treatment of a patient. Dr. Barnhart opined thatnurse Lewis, after having failed to receive Dr. Conte-Russian's approvalto use a posey vest on Burns, should have gone up the nursing chain ofcommand to pursue her concerns that Burns would attempt to get out ofbed; that she should have provided for an alternative to the posey vest toprotect against the risk of a fall; and that nurse Lewis should have had asitter in Burns' room, or should have moved Burns' bed to an area whereBurns could have received constant supervision. At the close of plaintiff'scase, the trial court struck this testimony on the grounds that a physicianis incompetent to testify to the standard of care placed upon a licensednurse.

Dr. Barnhart was plaintiff's only medical expert as to the standard ofcare for the nursing profession. After the trial court ruled that Dr. Barnhartwas incompetent to testify as to that standard, the court granted thehospital's motion for a directed verdict. Thereafter, the jury returned averdict in favor of Dr. Conte-Russian and the trial court entered judgmentthereon. The appellate court affirmed. 335 Ill. App. 3d 265.

This court allowed plaintiff's petition for leave to appeal. 177 Ill. 2dR. 315(a). We subsequently granted the Illinois Trial Lawyers Associationleave to submit an amicus curiae brief in support of plaintiff. We alsogranted the American Association of Nurse Attorneys leave to submit anamicus curiae brief in support of the hospital. 155 Ill. 2d R. 345. We willrefer to additional pertinent facts as they relate to the issues plaintiff raisesbefore this court.

ANALYSIS

I. Dr. Barnhart's Testimony

Plaintiff contends that the trial court erred in striking, as a discoverysanction, Dr. Barnhart's testimony relating to nurse Lewis'communications with Dr. Conte-Russian. Plaintiff also contends that thetrial court erred in striking Dr. Barnhart's testimony relating to the standardof care for the nursing profession and, consequently, entering a directedverdict in favor of the hospital.

A. Discovery Violation

During pretrial discovery, plaintiff submitted a disclosure pursuant toSupreme Court Rule 213 (177 Ill. 2d R. 213), which disclosed the namesand addresses of plaintiff's witnesses and "the subject of their testimony."This disclosure included Dr. Barnhart's name and address, and thefollowing description of his anticipated testimony:

"It is anticipated that Dr. Barnhart will testify that it is hisopinion that Dr. Conte[-]Russian and Edward Hospital deviatedfrom the accepted standards of medical care by disregarding Mr.Burns Sullivan's status as a level II fall risk suffered fromcognitive impairment and inability to understand directions andwas found trying to climb out of bed on three prior occasionseven though he suffered from Hemi-paralysis. He will testify thatDr. Conte-Russian and the Edward Hospital staff should haverestrained Mr. Sullivan in bed so that he could not get out.Further, he will testify that the attempt to sedate Mr. Sullivan byissuing medication as opposed to restraints was not properlyperformed. He will also testify that it is his opinion that Mr.Sullivan was not properly monitored during sedation despite hisinability to understand direction and physical impairments. He willalso testify that in his opinion Mr. Burns Sullivan's injuries weresustained as a result of medical negligence.

Dr. Barnhart will testify that in his opinion, Dr. Conte-Russian,after having been advised of Mr. Sullivan's three prior attemptsto get out of bed and remove his IV[,] should have orderedrestraints for Mr. Sullivan. He will testify that in his opinion Dr.Conte-Russian and the Edward Hospital medical staff shouldhave ordered restraints for Mr. Sullivan. That in his opinion, Dr.Conte-Russian and the Edward Hospital medical staff shouldhave monitored Mr. Sullivan more frequently after the decisionnot to use restraints was made. That as a result of Dr. Conte-Russian's decision not to properly restrain Mr. Sullivan, he fellout of bed and sustained brain injury including a subduralhematoma."

At trial, Dr. Barnhart's testimony reflected this disclosure. However, healso testified that one instance where nurse Lewis deviated from thestandard of care for professional nurses was her failure to adequatelycommunicate Burns' condition to Dr. Conte-Russian during their phoneconversation.

At the close of Dr. Barnhart's testimony, the hospital moved to strikethat portion of his testimony relating to nurse Lewis' communication ofBurns' condition to Dr. Conte-Russian. Plaintiff conceded that Dr.Barnhart's specific opinion regarding nurse Lewis' failure to adequatelycommunicate with Dr. Conte-Russian was not included in plaintiff's Rule213 disclosure. The trial court granted the hospital's motion to strike thistestimony.

This cause was tried prior to the amendment of Rule 213 effectiveJuly 1, 2002, so we will refer to its preamendment version. SupremeCourt Rule 213(g) requires that, upon written interrogatory, a party mustdisclose the subject matter, conclusions, opinions, qualifications, and allreports of a witness who will offer any opinion testimony. 177 Ill. 2d R.213(g). Further, Supreme Court Rule 213(i) imposes on each party acontinuing duty to inform the opponent of new or additional informationwhenever such information becomes known to the party. 177 Ill. 2d R.213(i). The Rule 213 disclosure requirements are mandatory and subjectto strict compliance by the parties. Seef v. Ingalls Memorial Hospital,311 Ill. App. 3d 7, 21 (1999); Warrender v. Millsop, 304 Ill. App. 3d260, 265 (1999). The admission of evidence pursuant to Rule 213 iswithin the sound discretion of the trial court, and the court's ruling will notbe disturbed absent an abuse of that discretion. Susnis v. Radfar, 317 Ill.App. 3d 817, 828 (2000); Seef, 311 Ill. App. 3d at 22.

As noted, plaintiff concedes that Dr. Barnhart's specific opinionregarding nurse Lewis' failure to adequately communicate Burns'condition to Dr. Conte-Russian was not included in plaintiff's Rule 213disclosure. However, plaintiff argues that the "gist" of Dr. Barnhart's trialtestimony regarding nurse Lewis' telephone conversation with Dr. Conte-Russian was an "elaboration" or a "logical corollary" of, or "effectively"implicated, plaintiff's Rule 213 disclosure.

The trial court did not accept this argument, and neither do we. Asthe trial court reasoned, "you have to drop down to specifics." Rule 213permits litigants to rely on the disclosed opinions of opposing experts andto construct their trial strategy accordingly. Firstar Bank of Illinois v.Peirce, 306 Ill. App. 3d 525, 532 (1999). The supreme court rulesrepresent this court's best efforts to manage the complex and importantprocess of discovery. One of the purposes of Rule 213 is to avoidsurprise. 177 Ill. 2d R. 213(g), Committee Comments. To allow eitherside to ignore Rule 213's plain language defeats its purpose andencourages tactical gamesmanship. Department of Transportation v.Crull, 294 Ill. App. 3d 531, 537 (1998). Our appellate court has stated:

" 'Rule 213 establishes more exacting standards regardingdisclosure than did Supreme Court Rule 220 ***, whichformerly governed expert witnesses. Trial courts should be morereluctant under Rule 213 than they were under former Rule 220(1) to permit the parties to deviate from the strict disclosurerequirements, or (2) not to impose severe sanctions when suchdeviations occur. Indeed, we believe one of the reasons for newRule 213 was the need to require stricter adherence to disclosurerequirements.' " Susnis, 317 Ill. App. 3d at 828-29, quotingCrull, 294 Ill. App. 3d at 538-39.

We agree. Given this stricter standard of compliance, we hold that the trialcourt did not abuse its discretion in finding that plaintiff violated Rule213(g). See Susnis, 317 Ill. App. 3d at 829.

Plaintiff further argues that even if Dr. Barnhart's testimonyconstituted a discovery violation, the extreme remedy of striking thetestimony constituted an abuse of the trial court's discretion. We disagree." 'Where a party fails to comply with the provisions of Rule 213, a courtshould not hesitate sanctioning the party, as Rule 213 demands strictcompliance.' " Peirce, 306 Ill. App. 3d at 533, quoting Warrender, 304Ill. App. 3d at 268. In determining whether the exclusion of a witness isa proper sanction for nondisclosure, a court must consider the followingfactors: (1) the surprise to the adverse party; (2) the prejudicial effect ofthe testimony; (3) the nature of the testimony; (4) the diligence of theadverse party; (5) the timely objection to the testimony; and (6) the goodfaith of the party calling the witness. The decision whether or not toimpose sanctions lies within the sound discretion of the trial court, and thatdecision will not be reversed absent an abuse of discretion. Warrender,304 Ill. App. 3d at 268; Ashpole v. Brunswick Bowling & BilliardsCorp., 297 Ill. App. 3d 725, 727 (1998).

The record shows that, regarding the first factor, the hospital wasclearly surprised by Dr. Barnhart's testimony. Plaintiff concedes that theRule 213(g) disclosure did not contain the opinion to which Dr. Barnharttestified. Further, nowhere in his deposition does Dr. Barnhart suggest orimply that nurse Lewis failed to communicate appropriately with Dr.Conte-Russian and that this failure proximately caused Burns' fall.

Regarding the second and third factors, the nature of the testimonyand its prejudicial effect are manifest. Dr. Barnhart testified regarding aninstance of how the hospital deviated from the standard of care for nurses.This was a theory of negligence of which the hospital should have beeninformed. Regarding the fourth through the sixth factors, the record showsthat the hospital was diligent in sending its Rule 213 interrogatories toplaintiff; that the hospital timely objected to the contested testimony; andthat this lapse in an otherwise detailed summary of Dr. Barnhart'santicipated testimony does not indicate good faith.

The purpose behind Rule 213 is to avoid surprise and to discouragetactical gamesmanship. "Rule 213 brings to a trial a degree of certaintyand predictability that furthers the administration of justice. The rule shouldbe enforced by trial judges." Peirce, 306 Ill. App. 3d at 536. We cannotsay that the trial court abused its discretion in striking this portion of Dr.Barnhart's testimony. See Susnis, 317 Ill. App. 3d at 829 (finding noabuse of discretion when trial court bars expert physician testimony afterparty fails to make Rule 213 disclosure of testimony regarding the relevantstandard of care).

B. Nursing Standard of Care

Plaintiff also contends that the trial court erred in striking Dr.Barnhart's testimony relating to the standard of care for the nursingprofession and, consequently, entering a directed verdict in favor of thehospital. "In directing a verdict, the trial court determines as a matter oflaw that there are no evidentiary facts out of which the jury may construethe necessary fact essential to recovery." (Emphasis added.) Jones v.O'Young, 154 Ill. 2d 39, 47 (1992). Accordingly, our review is de novo.

This court has explained the requirement of expert medical testimonyin a medical malpractice action as follows:

"In a negligence medical malpractice case, the burden is onthe plaintiff to prove the following elements of a cause of action:the proper standard of care against which the defendantphysician's conduct is measured; an unskilled or negligent failureto comply with the applicable standard; and a resulting injuryproximately caused by the physician's want of skill or care.[Citations.] Unless the physician's negligence is so grosslyapparent or the treatment so common as to be within theeveryday knowledge of a layperson, expert medical testimony isrequired to establish the standard of care and the defendantphysician's deviation from that standard." Purtill v. Hess, 111Ill. 2d 229, 241-42 (1986).

Accord Dolan v. Galluzzo, 77 Ill. 2d 279, 282 (1979).

In this case, the trial court ruled that Dr. Barnhart was incompetentto testify as to the standard of care for the nursing profession and nurseLewis' deviations therefrom. The appellate court upheld the trial court'sruling. 335 Ill. App. 3d at 269-72. In Jones, 154 Ill. 2d at 43, this courtsummarized the test of an expert physician's competency to testify:

"In Purtill v. Hess (1986), 111 Ill. 2d 229, this courtarticulated the requirements necessary to demonstrate an expertphysician's qualifications and competency to testify. First, thephysician must be a licensed member of the school of medicineabout which he proposes to testify. (Purtill, 111 Ill. 2d at 242-43, citing Dolan v. Galluzzo (1979), 77 Ill. 2d 279.) Second,'the expert witness must show that he is familiar with themethods, procedures, and treatments ordinarily observed byother physicians, in either the defendant physician's communityor a similar community.' (Purtill, 111 Ill. 2d at 243.) Once thefoundational requirements have been met, the trial court has thediscretion to determine whether a physician is qualified andcompetent to state his opinion as an expert regarding thestandard of care. Purtill, 111 Ill. 2d at 243."

If the expert physician fails to satisfy either of these foundationalrequirements, "the trial court must disallow the expert's testimony." Jones,154 Ill. 2d at 44.

Dolan established the first requirement, i.e., that a health-care expertwitness must be a licensed member of the school of medicine about whichthe expert proposes to testify. Dolan explained that there are differentsystems or schools of medicine with varying tenets and practices, and thattesting the care and skill of a practitioner of one school of medicine by theopinion of a practitioner of another school would result in inequities. Thepractitioner of a particular school of medicine is entitled to have his or herconduct tested by the standards of that school. Dolan, 77 Ill. 2d at 283(and authorities cited therein).

This court in Dolan further observed:

"Illinois statutes [citations] provide for the regulation ofpractitioners of medicine and surgery, physical therapy, nursing,pharmacy, dental surgery, podiatry, optometry, etc. This is aclear expression by the legislature of public policy to recognizeand regulate various schools of medicine. The various actsregulating the health professions [citations] provide for differenttraining, and regulate the treatment each profession may offer.*** We simply are not disposed to provide for what, in effect,may result in a higher standard of care when the legislature, byrecognizing various schools of medicine, has not done so. To doso would not only be unfair *** , but it would also assume thatscience and medicine have achieved a universal standard oftreatment of disease or injury. Such is not the case. In itswisdom, the legislature has recognized a fundamental tenet ofcontemporary life: no one person, group or school has yetsucceeded in abstracting a universal medical method from themany changing methods used in science and medicine." Dolan,77 Ill. 2d at 284.

Accordingly, the Dolan court held that "in order to testify as an expert onthe standard of care in a given school of medicine, the witness must belicensed therein." Dolan, 77 Ill. 2d at 285.

Plaintiff argues that Illinois law no longer holds that a healthprofessional expert witness must always be a licensed member of theschool of medicine about which the expert proposes to testify. In supportof her argument, plaintiff cites the following from Jones:

"By hearing evidence on the expert's qualifications andcomparing the medical problem and the type of treatment in thecase to the experience and background of the expert, the trialcourt can evaluate whether the witness has demonstrated asufficient familiarity with the standard of care practiced in thecase. The foundational requirements provide the trial court withthe information necessary to determine whether an expert hasexpertise in dealing with the plaintiff's medical problem andtreatment. Whether the expert is qualified to testify is notdependent on whether he is a member of the same specialtyor subspecialty as the defendant but, rather, whether theallegations of negligence concern matters within hisknowledge and observation." (Emphasis added.) Jones, 154Ill. 2d at 43.

Based on the italicized sentence, plaintiff argues that Jones "retreats fromany rigid, formalistic rule" that a health professional expert witness must bea licensed member of the school of medicine about which the expertproposes to testify.

We cannot accept this argument. Jones clearly reaffirms this court'sdecision in Purtill describing two foundational requirements: that thehealth-care expert witness must be a licensed member of the school ofmedicine about which the expert proposes to testify; and that the expertmust be familiar with the methods, procedures, and treatments ordinarilyobserved by other health-care providers in either the defendant'scommunity or a similar community. Indeed, the very next sentences inJones following the italicized sentence upon which plaintiff relies state: "Ifthe plaintiff fails to satisfy either of the foundational requirements of Purtill,the trial court must disallow the expert's testimony. (Purtill, 111 Ill. 2d at244.) The requirements are a threshold beneath which the plaintiff cannotfall without failing to sustain the allegations of his complaint." Jones, 154Ill. 2d at 44. It is only after determining that both foundationalrequirements are satisfied that the court proceeds to evaluate whether theallegations of negligence concern matters within the expert's knowledgeand observation. Instead of retreating from the license requirement, Jonesclearly reaffirms that a plaintiff must satisfy both requirements. Jones, 154Ill. 2d at 44, citing Purtill, 111 Ill. 2d at 244.

Plaintiff similarly points to language in Gill v. Foster, 157 Ill. 2d 304(1993), in arguing that Dr. Barnhart's lack of licensure in the nursingprofession should have gone only to the weight of his testimony and not itsadmissibility. Plaintiff misreads Gill. In that case, the trial court barred theplaintiff's expert, a licensed general surgeon, from testifying that thedefendant, a licensed radiologist, deviated from the standard of care. Gill,157 Ill. 2d at 315-16. The plaintiff in Gill argued that his expert waslicensed to practice medicine in all of its branches and, therefore, theexpert's testimony should have been admitted, with his qualifications goingto the weight of his opinion. This court agreed with the plaintiff; however,only after finding that the plaintiff had satisfied the licensing requirement.Gill, 157 Ill. 2d at 317. We cited to Purtill for its three-step analysis: thetwo foundational requirements of licensure and familiarity, and thediscretionary requirement of competency. Gill, 157 Ill. 2d at 316-17.When this court ruled that the plaintiff's expert could testify, it was in thecontext of the trial court's discretion to determine whether the physicianwas qualified and competent to state his opinion regarding the standard ofcare. Gill, 157 Ill. 2d at 317. This court was not discussing whether theplaintiff's expert satisfied the licensing requirement. Far from overrulingDolan and its progeny, Gill expressly upheld Purtill's three-step analysis.Clearly, Gill and Jones do not stand for the proposition that this court hasdisregarded, or should disregard, the licensing requirement first establishedin Dolan.

Plaintiff next contends that the appellate court failed to considersection 2-622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West2000)), enacted in 1985, subsequent to Dolan. Section 2-622 providesthat in any medical malpractice action, the plaintiff's attorney must attachto the complaint an affidavit stating that the plaintiff has consulted with ahealth professional in whose opinion there is a "reasonable and meritoriouscause" for the filing of the action. The plaintiff must file a written report,attached to the affidavit, prepared by that health professional indicating thebasis for his determination. The section specifically provides:

"If the affidavit is filed as to a defendant who is a physicianlicensed to treat human ailments without the use of drugs ormedicines and without operative surgery, a dentist, a podiatrist,or a psychologist, or a naprapath, the written report must befrom a health professional licensed in the same profession, withthe same class of license, as the defendant. For affidavits filed asto all other defendants, the written report must be from aphysician licensed to practice medicine in all its branches." 735ILCS 5/2-622(a)(1) (West 2000).

Plaintiff asserts that section 2-622 evinces a legislative intent thatphysicians are competent to testify about the standard of care for thenursing profession.

We cannot accept this contention. The written health professionalreport required by section 2-622(a)(1) is a pleading requirement designedto reduce the number of frivolous medical malpractice lawsuits at an earlystage before litigation expenses mount. DeLuna v. St. Elizabeth'sHospital, 147 Ill. 2d 57, 65 (1992). The health professional's reportestablishes only that the plaintiff has a meritorious claim and, therefore,reasonable grounds for pursuing the action. The requirements of section2-622 do not rise to the level of substantive elements of a claim formedical malpractice. Gulley v. Noy, 316 Ill. App. 3d 861, 864 (2000);Mueller v. North Suburban Clinic, Ltd., 299 Ill. App. 3d 568, 573(1998). The report constitutes only a threshold opinion, based on a healthprofessional's overview of the case. The health professional's reportconstitutes only "an advisory opinion." McAlister v. Schick, 147 Ill. 2d84, 93 (1992). Because the purpose of section 2-622 is to eliminatefrivolous lawsuits at the pleading stage, the statute has no bearing on thetype of evidence relied upon at trial. Lyons v. Hasbro Industries, Inc.,156 Ill. App. 3d 649, 655 (1987). Further, the fact that Jones and Gill,which clearly uphold Dolan's license requirement, were decidedsubsequent to the enactment of section 2-622 belies any tension betweenthe statute and this court's precedent.

Plaintiff next cites Wingo v. Rockford Memorial Hospital, 292 Ill.App. 3d 896 (1997), in support of her argument against the requirementthat a health-care expert witness must be licensed in the school ofmedicine of which the expert proposes to testify. Plaintiff contends that ifWingo is applied to this case, Dr. Barnhart should be allowed to testify tothe standard of care applicable to nurse Lewis.

In Wingo, three physician expert witnesses testified that a nursedeviated from the applicable nursing standard of care by failing to properlycommunicate the condition of a patient to the treating physician. Thephysicians opined that the nurse's deviation from the standard of careresulted in a baby being born with brain damage. Wingo, 292 Ill. App. 3dat 903-04.

The court in Wingo distinguished that case from this court'sprecedent and held that the license requirement of Dolan did not apply:

"We find that the facts of the instant case do not fit within thelicense requirement of Dolan or Jones. Those cases indicate thatthe reason for the rule is to prevent a higher standard of carebeing imposed upon the defendant and to ensure that thetestifying expert has expertise in dealing with the patient'smedical problem and treatment and that the allegations ofnegligence are within the expert's knowledge and observation.Those concerns have not been sacrificed here. In the instantcase, the allegations of negligence against nurse Welden did notconcern a nursing procedure but, rather, related to what a nurseis required to communicate to a physician about what transpiredsince the physician last saw the patient. As such the allegationsof negligence do not concern an area of medicine about whichthere would be a different standard between physician andanother school of medicine. Furthermore, it was established thatthe allegations of negligence were well within the testifyingdoctors' knowledge and experience. We believe that a physicianshould be entitled to testify about what he or she is entitled torely upon in the area of communication from a nurse in thecontext of an obstetrical team rendering care to a patient in ahospital." Wingo, 292 Ill. App. 3d at 906.

Accordingly, the court held that no error occurred in allowing thephysicians to testify as to the applicable nursing standard of care in thatcase. Wingo, 292 Ill. App. 3d at 906.

The appellate court in this case correctly reasoned that Wingo doesnot apply. In this case, the trial court struck Dr. Barnhart's testimonyregarding nurse Lewis' communication with Dr. Conte-Russian as asanction for violating Rule 213(g). Thus, the precise factual scenario ofWingo is not present. Dr. Barnhart's remaining opinion testimony relatedto nursing procedures. 335 Ill. App. 3d at 271. In distinguishing Wingofrom this case, the appellate court did not discuss the merits of Wingo,and neither do we. The present case falls squarely within the licenserequirement of Dolan and its progeny.

Accordingly, what remains for us is to apply Dolan's licenserequirement for health-care expert witnesses to the remainder of Dr.Barnhart's testimony. As noted, Dr. Barnhart testified that nurse Lewisfailed to adhere to proper nursing procedures. He opined that nurse Lewisshould have pursued her concerns that Burns was a fall risk by going upthe nursing chain of command; that she should have provided for analternative to the posey vest; and that she should have provided forconstant supervision.

We agree with the trial and appellate courts that, based on Dolan,Dr. Barnhart was not competent to testify regarding the standard of carefor the nursing profession and nurse Lewis' deviations therefrom. Dolanspecifically included the nursing profession in discussing its rationale for thelicense requirement. This court acknowledged that the legislatureestablished nursing as a unique school of medicine. Dolan, 77 Ill. 2d at284. Further, the dissent in Dolan lends support to the conclusion thatDolan's licensing requirement includes the nursing profession. The dissentstated: "Under [this] holding a physician would be unable to testify tonursing standards of care even though nurses operated under [thephysician's] 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 (Ward, J., dissenting, joined by Goldenhersh, C.J.).Clearly, this exact issue was contemplated by this court in Dolan, whichunequivocally required that a health-care expert witness must be alicensed member of the school of medicine about which the experttestifies.

We note that amicus Illinois Trial Lawyers Association expresslyagrees with the Dolan dissent and contends that the license requirementshould not be a threshold test. The Trial Lawyers Association posits:"There is nothing which a nurse can do which a doctor cannot do." To besure, this supposition is generally accepted. Amicus American Associationof Nurse Attorneys (AANA) concedes that in many jurisdictionsphysicians have been allowed to testify as to the nursing standard of care.See, e.g., Paris v. Kreitz, 75 N.C. App. 365, 380, 331 S.E.2d 234, 245(1985) (noting that "physicians are clearly acceptable experts with regardto *** nurses"); Goff v. Doctors General Hospital, 166 Cal. App. 2d314, 319-20, 333 P.2d 29, 33 (1958) (reasoning that "surely, a qualifieddoctor would know what was standard procedure for nurses to follow").

However, the proposition that "[t]here is nothing which a nurse cando which a doctor cannot do" presumes a universal standard of treatmentamong physicians and nurses. Dolan expressly rejected this assumption.Dolan, 77 Ill. 2d at 284 (rejecting the assumption "that science andmedicine have achieved a universal standard of treatment of disease orinjury"). AANA persuasively reasons:

"A physician, who is not a nurse, is no more qualified to offerexpert, opinion testimony as to the standard of care for nursesthan a nurse would be to offer an opinion as to the physicianstandard of care. *** Certainly, nurses are not permitted to offerexpert testimony against a physician based on their observancesof physicians or their familiarity with the procedures involved. Anoperating room nurse, who stands shoulder to shoulder withsurgeons every day, would not be permitted to testify as to thestandard of care of a surgeon. An endoscopy nurse would not bepermitted to testify as to the standard of care of agastroenterologist performing a Colonoscopy. A labor anddelivery nurse would not be permitted to offer expert, opiniontestimony as to the standard of care for an obstetrician or evena midwife. Nor would a nurse be permitted to testify that, in herexperience, when she calls a physician, he/she usually respondsin a certain manner. Such testimony would be, essentially, experttestimony as to the standard of medical care."

Scholars share this reasoning:

"Physicians often have no first-hand knowledge of nursingpractice except for observations made in patient care settings.The physician rarely, if ever, teaches in a nursing program nor isa physician responsible for content in nursing texts. In manysituations, a physician would not be familiar with the standard ofcare or with nursing policies and procedures which govern thestandard of care. Therefore, a physician's opinions would not beadmissible in jurisdictions which hold the expert must be familiarwith the standard of care in order to testify as an expert. Anexample of a common situation which gives rise to allegations ofnursing negligence occurs when a nurse fails to follow theinstitutional 'chain of command' in reporting a patient conditionto a physician who subsequently refuses to attend to the patientcondition. It is unlikely that a physician would be familiar with thepolicy and procedure involved in handling such a situation. It isas illogical for physicians to testify on nursing standard of care asit would be for nurses to testify about medical malpractice." E.Beyer & P. Popp, Nursing Standard of Care in MedicalMalpractice Litigation: The Role of the Nurse ExpertWitness, 23 J. Health & Hosp. L. 363, 365 (1990).

This scholarly insight has spread to litigators:

"Testimony from a physician about the standard of care maybe subject to objection because the physician is not a nurse anddoes not have direct knowledge of nursing standards of care. Aphysician's statement that he or she often observes nurses andtherefore knows what they do may be inadequate." P. Sweeney,Proving Nursing Negligence, 27 Trial 34, 36 (May 1991).

Beyond scholars and litigators, courts have begun to accept this reasoning.

In some jurisdictions, "the physician is no longer permitted to testifyabout the nursing standard of care since the physician is not a nurse anddoes not possess direct knowledge of nursing standards." F. Cavico & N.Cavico, The Nursing Profession in the 1990's: Negligence andMalpractice Liability, 43 Clev. St. L. Rev. 557, 578 (1995); see Dolanv. Jaeger, 285 A.D.2d 844, 846, 727 N.Y.S.2d 784, 786-87 (2001)(upholding trial court's dismissal of nursing malpractice action wherephysician anesthesiologist was only expert to testify as to nurse's standardof care); Vassey v. Burch, 45 N.C. App. 222, 226, 262 S.E.2d 865,867 ("Although the affidavit of [the physician] may be sufficient toestablish the accepted standard of medical care for a doctor in his office,it does not establish the standard of care for a nurse in a hospital"), rev'don other grounds, 301 N.C. 68, 269 S.E.2d 137 (1980). According toone scholar:

"These cases represent a growing recognition on the part ofcourts that nursing, as a profession, has moved beyond its formerdependence on the physician, and into a realm where it must andcan legally account for its own professional practices. In doingso, the experts who provide the testimony, and the literature fromwhich their opinions are derived, come from the nursingprofession." C. Kehoe, Contemporary Nursing Roles andLegal Accountability: The Challenge of Nursing Malpracticefor the Law Librarian, 79 Law Libr. J. 419, 428-29 (1987).

Based on this reasoning, AANA argues that Dr. Barnhart should not bepermitted to offer expert testimony against nurse Lewis based on hisobservation of nurses.

We agree. By enacting the Nursing and Advanced Practice NursingAct (225 ILCS 65/5-1 et seq. (West 2000)), the legislature has set fortha unique licensing and regulatory scheme for the nursing profession. AsAANA observes, under the nursing act, a person with a medical degree,who is licensed to practice medicine, would not meet the qualification forlicensure as a registered nurse, nor would that person be competent to sitfor the nursing license examination, unless that person completed anaccredited program in nursing. See 225 ILCS 65/5-1 et seq. (West2000). The appellate court in this case correctly reasoned:

"Dr. Barnhart is not a licensed member of the nursing profession.To allow the doctor to testify as to the standard of careapplicable to the nursing profession implicates the risks raised byDolan, namely, the imposition of a higher standard of care andthe muddling and mixing of various tenets and practices uniqueto each profession." 335 Ill. App. 3d at 272.

We uphold the trial court's ruling on the competency of Dr. Barnhart totestify as to the standard of care for the nursing profession. We expresslyreaffirm the license requirement of Dolan and its progeny and declineplaintiff's invitation to deviate therefrom.

As a consequence of ruling that Dr. Barnhart was not competent totestify as to the standard of care for the nursing profession, the trial courtentered a directed verdict in favor of the hospital. A directed verdict willbe upheld where "all of the evidence, when viewed in its aspect mostfavorable to the opponent, so overwhelmingly favors movant that nocontrary verdict based on that evidence could ever stand." Pedrick v.Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). A directedverdict in favor of a defendant is appropriate when the plaintiff has notestablished a prima facie case. A plaintiff must present at least someevidence on every essential element of the cause of action or the defendantis entitled to judgment in his or her favor as a matter of law. Nastasi v.United Mine Workers of American Union Hospital, 209 Ill. App. 3d830, 837 (1991). If the plaintiff fails to produce a required element ofproof in support of her cause of action, then no cause is presented for thejury's consideration and the entry of a directed verdict for the defendantis proper. Mayer v. Baisier, 147 Ill. App. 3d 150, 155 (1986); see 3ANichols Illinois Civil Practice