Conners v. Poticha

1-96-3546


PATRICIA CONNERS and ) APPEAL FROM THE
THOMAS CONNERS, ) CIRCUIT COURT OF
) COOK COUNTY
Plaintiffs-Appellants, )
)
v. ) No. 91-L-8186
)
STUART POTICHA, ) THE HONORABLE
) JAMES J. HEYDA,
Defendant-Appellee. ) JUDGE PRESIDING.

JUSTICE COUSINS delivered the opinion of the court:
Plaintiff, Patricia Conners, filed a complaint against
defendant, Dr. Stuart Poticha, for the inadequate treatment of
plaintiff's recurring infection subsequent to a hernia operation
performed by defendant. The jury rendered a verdict in
defendant's favor, and plaintiff filed a motion for a new trial
asserting error in the admission of certain testimony offered by
defendant and one of his expert witnesses. The trial court
denied plaintiff's motion for a new trial. On appeal, plaintiff
contends that the trial court committed reversible error: (1) by
allowing defendant to offer a new opinion regarding the cause of
plaintiff's infections that contradicted defendant's deposition
testimony and that was based on speculation; and (2) by
permitting defendant's expert witness to render a new opinion as
to the cause of plaintiff's infections when such expert failed to
disclose that opinion during discovery and where such opinion was
based on mere conjecture.

BACKGROUND
Plaintiff's complaint raised several issues relating to
allegedly negligent medical care provided by defendant between
February 1983 and June 1985. The circuit court of Cook County
directed a verdict in defendant's favor on the bulk of those
issues and submitted the case to a jury to resolve the single
question of whether plaintiff's recurring infection was caused by
defendant's failure to discover an allegedly infected suture.
The facts relevant to plaintiff's appeal are as follows.
Plaintiff has undergone several abdominal surgeries over the
past 45 years, including a ventral hernia operation in 1981. All
of plaintiff's abdominal operations involved incisions at the
same site. Consequently, the area of these incisions weakened
and stretched over time, and in 1983, plaintiff sustained another
ventral hernia, consisting of numerous holes in the muscular
layers of the abdominal wall. In February 1983, defendant, a
general surgeon, repaired the hernia by removing the prior
incisions and sewing the entire area together in a single
closure. Due to plaintiff's excessive weight, defendant decided
that strong closure material was needed to withstand the stress
on plaintiff's abdominal wall. Defendant, therefore, elected to
use a combination of absorbable sutures and permanent nylon
sutures in order that the connective tissues and muscles would be
held together in the event that the area was not completely
healed when the absorbable sutures dissolved.

Plaintiff's post-operative condition was normal for several
weeks. Soon thereafter, however, plaintiff was twice admitted to
surgery under defendant's care to have fluid removed from the
site of her operation. On both occasions, the fluids tested
negative for any type of bacteria or infection. Beginning in
late March 1983, plaintiff was readmitted for treatment of an
infection which appeared at the edge of her surgical wound next
to healthy skin. From this time until May 1985, defendant
removed infected tissue and prescribed antibiotics. Each attempt
to exterminate any infection by tissue removal and antibiotics
proved successful until plaintiff visited defendant again with
recurring infection. Defendant's tests showed that each
recurrence of plaintiff's infection was caused by entirely new
bacteria which were combatted with different antibiotics and, in
cases of particularly destructive bacteria, substantial tissue
removal.
After 10 unsuccessful procedures to bring about final
healing, defendant referred plaintiff to the Mayo Clinic. In
June 1985, surgeons at the Mayo Clinic removed plaintiff's nylon
suture and scar tissue, restitched the operation site, and made
cosmetic corrections to the area. Plaintiff made a successful
and complete recovery following this operation. A surgeon at the
Mayo Clinic suggested that an infected suture could have been the
cause of plaintiff's recurring infection. However, cultures of

the suture material removed from plaintiff by the Mayo Clinic
were negative for the presence of any bacteria.
Nevertheless, plaintiff and her husband, Thomas, filed suit
against Dr. Poticha, alleging, in pertinent part, that
plaintiff's recurring infection was caused by an infected suture
placed by defendant during the February 1983 hernia operation,
and that defendant was negligent in failing to discover that fact
and remove the suture. At trial, defendant and his expert
witness, Dr. Gordon Trenholme, testified at length on the issue
of causation, stating that the sutures could not have been the
cause of plaintiff's infections and that an external source must
have been responsible. Plaintiff's earlier motions in limine to
bar any testimony as to an external cause of infection were
denied as were plaintiff's vigorous objections during the
defense's aforementioned testimony. Plaintiff specifically
objected on the grounds that, at their depositions, defendant and
his expert were unable to offer any opinions as to the actual
cause of plaintiff's infections and were, pursuant to Supreme
Court Rule 220(d) (134 Ill. 2d R. 220(d)), precluded from
rendering contradictory opinions on that subject while testifying
at trial.
We affirm.

ANALYSIS
I
Plaintiff's first contention is that defendant's trial
testimony should have been excluded, since it was fraught with
new opinion and speculation that contradicted his deposition
testimony. Plaintiff relies on Supreme Court Rule 220(d), which
states in pertinent part:
"To the extent that the facts known or opinions
held by an expert have been developed in discovery
proceedings ***, his direct testimony at trial may not
be inconsistent with or go beyond the fair scope of the
facts known or opinions disclosed in such discovery
proceedings." 134 Ill. 2d R. 220(d).
The purpose of this rule is to promote the timely disclosure of
expert opinions in order that an opposing party will not be
surprised or prejudiced by expert testimony at trial. Sohaey v.
Van Cura, 158 Ill. 2d 375, 381-82 (1994); Baird v. Adeli, 214
Ill. App. 3d 47, 60, 573 N.E.2d 279, 286-87 (1991). Although
defendant was not an expert witness, Rule 220(d) mandates that,
as a defendant-physician, he may not testify at trial in
contravention of his deposition testimony. Karr v. Noel, 212 Ill.
App. 3d 575, 583, 571 N.E.2d 271, 276 (1991).
In the case at bar, plaintiff attempts to show with the
following excerpt from defendant's deposition that defendant was
specifically questioned as to the cause of plaintiff's recurring
infection and did not opine that the source of her infection was
external:
"Q. Well, it just happens to be a fact of the
case that she has got one particular infectious agent
or another, or two or three or four?
A. Well, it's peculiar for somebody who has a
constant infection to have different bugs all the time.
Q. What does it mean? What's the medical
significance of that peculiarity?
A. I don't know. Why would a patient have a
continuing recurring infection at the periphery of the
wound with a whole variety of different organisms?
Q. You're still not able to answer that: is
that correct?
A. I don't know the answer."
Plaintiff then juxtaposes the above deposition statements with
the following excerpt of defendant's trial testimony:
"Q. Do you have an opinion, Doctor, based on a
reasonable degree of medical certainty as to *** where
this [bacteria] that was later cultured out came from?
***
A. Yes. *** At the time the [bacteria] was
cultured, the wound was open. The wound had already
been opened surgically, and there was this big, gaping
wound, and it came from the outside, it came from the
patient's skin, the clothing, bedclothes, any of these
places we talked about.
At the time the [bacteria] first showed up, the
sutures at the base of the wound were covered over with
granulation tissue. That was two months after the
original operation. Those sutures were not exposed to
[the bacteria]. There was no [bacteria] found before
that."
A further inspection of defendant's deposition, however,
reveals that defendant did, indeed, offer an opinion as to
possible external sources of plaintiff's infection. One such
example of defendant's deposition testimony reads in relevant
part:
"Q. [T]o what factors do you assign the
persistence of this infection?
***
A. There are some real problems here because
we've dealt with infected wounds and this kind of a
suture abscess -- you know, every surgeon has seen
that. That's not uncommon. And it is not uncommon or
difficult to trace it to a suture and realize that's
the source of it and take it out. This is not this
kind of infection. It's clear from all these hours
we've just spent here, going through the chart, it must
be clear even to you that something else is going on

here. And the question is what. Okay. Well, did she
have some particular kind of bacteria that her body was
unable to cope with and that persisted in the periphery
of the wound. We never were able to demonstrate that
number one, and[;]
Number two, the bacteria constantly changed.
Everytime [sic] she'd come in with sepsis it was
something else.
And, number three, it was in an area that
frequently towards the end it had been completely
healed and ultimately broke down, opened, not where the
sutures were. The typical pattern of a suture
infection is that the wound that completely breaks down
breaks down right over where the suture is or near
there. You see a little hole. You stick it in an
inch, low [sic] and behold, there's the suture. You
pull it out and you know what the answer is. That's
not where this problem kept occurring, and it's
documented all over the chart at a great distance at
the edge of the wound.
So why would the wound open up there? That was
the problem that we had to face, and we never got a
good explanation for it. Was something rubbing on it?
Was it clothing or something else, or was there -- I

don't know why, but that was the problem." (Emphasis
added.)
In analyzing whether defendant violated Rule 220(d) in the
case at bar, we find Holston v. Sisters of the Third Order of St.
Francis, 165 Ill. 2d 150 (1995), particularly instructive. In
that case, the owner and operator of a medical center was sued
for negligence after plaintiffs' family member died from cardiac
arrest following gastric bypass surgery to reduce her weight.
The anesthesiologist during that procedure improperly inserted a
monitoring catheter by allowing it to pierce the patient's heart,
which caused an accumulation of fluid around her heart during her
operation. Despite several attempts by the treating nurse to
persuade her supervisor that the patient's post-operative heart
symptoms indicated that she would soon die of cardiac arrest
without immediate care, the hospital's charge nurse refused to
inform doctors of the patient's increasing problem. When the
patient's condition became critical, surgeons were finally
notified, but the patient suffered a heart attack within minutes
and subsequently died after being in a coma for one week. A jury
entered a verdict in favor of plaintiffs, and defendant asserted
on appeal that plaintiffs' expert witness violated Rule 220 by
offering "new" or "amplified" testimony that deviated from his
deposition testimony. Defendant argued that, during depositions,
plaintiffs' expert expressed no criticism of the defendant or its
nursing staff, but that, at trial, plaintiffs' expert testified
that defendant had failed to conform to the proper standard of
nursing care and hospital practice. The supreme court's review
of the record indicated, however, that the expert's trial
testimony was not a substantive alteration or extension of his
deposition testimony and that he did, indeed, assert during his
deposition that defendant erred and deviated from the proper
standard of care. The court found that the record belied
defendant's claim of surprise and prejudice from a Rule 220
violation and emphasized:
"Even assuming that this new information caused [the
expert's] testimony to technically exceed the scope of
opinions expressed in his discovery deposition, Rule
220 does not mandate a rigid or hypertechnical approach
to the disclosure and admission of expert opinion
evidence when the realities of trial diverge from the
anticipations of discovery." Holston, 165 Ill. 2d at
166.
In the case sub judice, the deposition statements by
defendant were not only in accord with his consistently
propounded and amply supported theory that the source of
plaintiff's infection was not the sutures, but they also
supported defendant's medical opinion that the cause of the
infection was, by default, external. Prior to and during the
proceedings, defendant provided persuasive arguments for ruling
out possible internal sources, all of which led defendant through
a process of elimination leaving only external sources as the
possible cause of plaintiff's infections. The fact that, at
trial, defendant may have expressed his theories of nonsuture
causation and probable external causation in more precise terms
than during his deposition does not establish a per se violation
of Rule 220. See, e.g., Jarke v. Jackson Products, Inc., 282 Ill.
App. 3d 292, 296-98, 668 N.E.2d 46, 48-49 (1996) (expert's use of
different terms at trial compared to those used in deposition to
describe dangerous product feature in product liability suit did
not render expert's testimony inconsistent in violation of Rule
220). Furthermore, we note that it was sufficient for defendant
simply to disprove plaintiff's theory of infected sutures as the
cause of infection and that defendant had no burden whatsoever to
prove which source among countless possibilities actually caused
plaintiff's infection to recur. See Leonardi v. Loyola University
of Chicago, 168 Ill. 2d 83, 101 (1995) ("[A] defendant need not
plead the sole proximate cause of another as an affirmative
defense; rather, a general denial of any proximate cause is
sufficient for the defendant to raise the defense"). Defendant's
admission during his deposition that he could not say with
certainty exactly what infectious agent or unhygienic activity of
the plaintiff caused her infection is not contradicted by
defendant's trial testimony as to what some of those possible
external sources may have been. We believe that defendant's
trial testimony as to causation did not constitute inconsistent
opinion within the meaning of Rule 220(d). Rather, we find that
such testimony represented an elaboration or refinement of a
well-established theory aimed at refuting the possibility of
suture infection, leaving only external causal factors to blame,
and that such testimony was within the fair scope of defendant's
opinions disclosed in his deposition.
Moreover, defendant's testimony at trial was not
speculative. Although defendant admitted to not knowing the
precise cause of plaintiff's infection, he was certain of its
external nature and many of its possible sources. Illinois
courts have stated before that, while it is true that an expert
witness may not base his opinion on conjecture or speculation
(Murphy v. General Motors Corp., 285 Ill. App. 3d 278, 282, 672 N.E.2d 371, 373 (1996)), a physician is allowed to testify as to
possible causes of an injury based on facts assumed to be true,
despite objection that his testimony is inconclusive or
speculative. Beloit Foundry v. Industrial Comm., 62 Ill. 2d 535,
539 (1976); Geers v. Brichta, 248 Ill. App. 3d 398, 407, 618 N.E.2d 531, 538 (1993). In light of the fact that the trial
court has wide discretion in ruling on the admissibility of
expert testimony under Rule 220 (Holston v. Sisters of the Third
Order of St. Francis, 165 Ill. 2d 150, 163 (1995); Jarke v.
Jackson Products, Inc., 282 Ill. App. 3d 292, 296, 668 N.E.2d 46,
48 (1996) (trial court's ruling under Rule 220 should not be
disturbed without clear showing of abuse of discretion)), we
believe the record supports our conclusion that the trial court
did not abuse its discretion in allowing defendant's testimony
regarding causation.
II
Plaintiff similarly argues that the trial court committed
reversible error by allowing defendant's infectious disease
expert to testify with respect to external causes of plaintiff's
infections. We believe this contention to be without merit for
reasons stated above. Indeed, our perusal of the record
indicates that defendant's expert's opinions rendered in pretrial
interrogatories and depositions were consistent with his opinions
offered at trial. Defendant's expert not only provided numerous
bases for his opinion that sutures were unrelated to plaintiff's
infections, but he delineated several examples of probable
external causes during his deposition. Plaintiff takes issue
with the fact that, when questioned on cross-examination,
defendant's expert offered additional, yet previously
undisclosed, reasons and examples in support of defendant's
theory of external causation. Once again, we find that such
testimony constituted elaboration within the fair scope of the
facts known and opinions disclosed during discovery. Moreover,
defendant's expert's additional statements were invited by
plaintiff's counsel as a result of persistent cross-examination.
Illinois courts have long held that one may not seek relief from
error which that party has caused to be injected into the
proceedings. See People v. Scott, 148 Ill. 2d 479, 531 (1992);
People v. Gacy, 103 Ill. 2d 1, 74 (1984); People v. Brown, 275
Ill. App. 3d 1105, 1112, 657 N.E.2d 642, 647-48 (1995).
Accordingly, we are unpersuaded that plaintiff was surprised
or prejudiced by the testimony at issue, and we affirm the
decision of the trial court.
Affirmed.
McNULTY, P.J. and TULLY, J., concur.