Hubbard v. Sherman Hospital

No. 2--96--1511

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

MARY JO HUBBARD and GLENN ) Appeal from the Circuit Court
HUBBARD, ) of Kane County.
)
Plaintiffs-Appellants, ) No. 94--L--141
)
v. )
)
SHERMAN HOSPITAL, MICHAEL )
MICHELOTTI, and RICHARD )
BERGLUND, ) Honorable
) Pamela K. Jensen,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:

Plaintiff, Mary Jo Hubbard, filed a medical malpractice action
against defendants, Sherman Hospital, Dr. Michael Michelotti, and
Dr. Richard Berglund, for personal injuries resulting from
allegedly negligent medical treatment for appendicitis and
subsequent postoperative complications. Plaintiff, Glenn Hubbard,
also filed an action for loss of consortium against defendants.
(Because Glenn Hubbard's action is a derivative of the medical
malpractice action, future references to "plaintiff" will be to
Mary Jo Hubbard alone.) Plaintiff appeals the jury's verdict
entered in favor of all defendants. We affirm.
Plaintiff arrived at the Sherman Hospital emergency room on
May 10, 1993, complaining of abdominal pain. She was treated and
released. The next day, plaintiff returned to the emergency room,
still complaining of abdominal pain. Dr. Berglund, plaintiff's
attending physician, admitted her to Sherman Hospital late in the
evening of May 11 following a telephone conversation with one of
the emergency room doctors.
Dr. Berglund first examined plaintiff at about 7 a.m. on May
12. After examining plaintiff, Dr. Berglund ordered a surgical
consultation. Dr. Michelotti, plaintiff's attending surgeon,
examined plaintiff in the morning of May 12. He ordered a CT scan
in an attempt to rule out a perforated appendix as the cause of
plaintiff's distress. At about 3 p.m., plaintiff underwent a CT
scan which revealed plaintiff had acute appendicitis with possible
perforation. Dr. Michelotti removed plaintiff's appendix in an
operation beginning at about 8 p.m. on May 12.
Plaintiff remained hospitalized from May 12 to May 18. During
that time, no further CT scans or blood testing was performed.
Also during that time, plaintiff complained of abdominal pain and
consistently experienced slightly elevated temperatures. Plaintiff
was discharged from the hospital on May 18.
Plaintiff returned to Dr. Michelotti's office on May 20,
complaining of severe abdominal pain. A CT scan performed on May
22 revealed that plaintiff had developed a pelvic abscess.
Plaintiff was again hospitalized and underwent a second surgery to
remove the abscess. Plaintiff was discharged on May 31 after
undergoing antibiotic therapy.
Plaintiff instituted this medical malpractice action on
February 10, 1994, against Sherman Hospital and Dr. Michelotti.
Plaintiff later amended her complaint, adding Dr. Berglund as a
defendant. Plaintiff alleged that Dr. Michelotti and Sherman
Hospital committed one or more of the following negligent acts:
"(a) Failed to both diagnose and discover the fact that
plaintiff *** suffered from appendicitis;
(b) Misdiagnosed the condition of [plaintiff];
(c) Failed to treat [plaintiff's] condition of
appendicitis;
(d) Failed to either perform or properly perform
necessary testing procedures in order to properly diagnose
and treat the plaintiff's illness;
(e) Failed to take precautions so as to prevent
plaintiff's appendix from rupturing;
(f) Improperly and unskillfully post-operatively
attended and treated plaintiff *** inasmuch as infections
and complications ensued;
(g) Failed to evaluate test results to properly
diagnose and treat plaintiff's illness."
Plaintiff also alleged that Dr. Berglund committed one or more of
the following negligent acts:
"(a) Failed to both diagnose and discover the fact that
plaintiff *** suffered from appendicitis;
(b) Failed to treat [plaintiff's] condition of
appendicitis;
(c) Carelessly and negligently failed to either perform
or properly perform necessary testing procedures in order to
properly diagnose and treat the plaintiff's illness;
(d) Carelessly and negligently failed to take
precautions so as to prevent plaintiff's appendix from
rupturing;
(e) Negligently, improperly and unskillfully post-
operatively attended and treated plaintiff *** inasmuch as
infections and complications ensued;
(f) Carelessly and negligently failed to evaluate test
results to properly diagnose and treat plaintiff's illness;
(g) Carelessly and negligently failed to immediately
order a consultation for plaintiff;
(h) Carelessly and negligently failed to treat
plaintiff's condition as an emergency."
Following the trial, the jury returned a verdict in favor of
all three defendants. Plaintiff's posttrial motion was denied on
December 5, 1996, and plaintiff's timely appeal followed.
In her first issue on appeal, plaintiff argues that the trial
court erred in barring certain testimony from her expert, Dr. Leon
Malachinski, regarding the actions of Sherman Hospital and Dr.
Michelotti. The record indicates that Sherman Hospital made a
motion in limine to bar Dr. Malachinski from giving previously
disclosed opinions critical of its emergency room physicians, Drs.
Jackson and McCormack. The trial court granted Sherman Hospital's
motion in limine in part, barring Dr. Malachinski's opinions that
Dr. Jackson failed to diagnose plaintiff or failed to admit her to
the hospital for observation and further diagnostic tests when she
had a potentially fatal illness; and that Dr. Jackson failed to
utilize appropriate diagnostic tools. The trial court also forbade
Dr. Malachinski from testifying to his opinions that Dr. McCormack
failed to assess plaintiff's symptoms adequately and failed to
order appropriate diagnostic tests.
Dr. Michelotti also presented a motion in limine to prevent
Dr. Malachinski from giving opinions concerning his actions in this
case. The trial court granted Dr. Michelotti's motion in part,
prohibiting Dr. Malachinski from rendering any opinions concerning
allegations that Dr. Michelotti delayed the appendectomy procedure
and diagnostic tests or concerning his performance of the actual
surgery. Plaintiff contends that these rulings were an abuse of
discretion. We disagree.
An expert witness is a person who possesses knowledge beyond
the ordinary understanding of the jury as a result of his or her
education, training, or experience. Gill v. Foster, 232 Ill. App.
3d 768, 780 (1992). Whether a person is qualified to testify as an
expert witness is left to the discretion of the trial court, and
the trial court's determination will be disturbed only if the trial
court abused its discretion. Gill, 232 Ill. App. 3d at 780. In
assessing the qualifications of the proposed expert, the trial
court should consider the proposed expert's education and
employment background to ensure that the witness is familiar with
the medical issues in the case. Gill, 232 Ill. App. 3d at 781.
In medical malpractice cases, the proponent of an expert
physician's testimony must establish a two-part foundation to
demonstrate the expert's qualifications to testify. "First, the
physician must be a licensed member of the school of medicine about
which he proposes to testify." Jones v. O'Young, 154 Ill. 2d 39,
43 (1992). Second, the physician must show that he possesses the
necessary expertise in dealing with the plaintiff's medical problem
and treatment by demonstrating his familiarity with the " 'methods,
procedures and treatments ordinarily observed' " by similarly
situated physicians. Jones, 154 Ill. 2d at 43, quoting Purtill v.
Hess, 111 Ill. 2d 229, 243 (1986). The expert's failure to
establish either of the foundational requirements results in the
preclusion of his testimony. Jones, 154 Ill. 2d at 44.
The parties do not seriously contest that Dr. Malachinski
satisfied the first prong of the foundation, that he is a member of
the school of medicine about which he proposed to testify. We thus
turn to the second prong of the foundation, whether the allegations
of negligence were within Dr. Malachinski's knowledge and
experience.
We hold that the trial court did not abuse its discretion in
barring portions of Dr. Malachinski's testimony as the trial
court's decision was amply supported by the record. Dr.
Malachinski testified that he had little experience in the
emergency room. He testified that he had completed a one-month
rotation in the emergency room when he was an intern.
Additionally, he testified that he had attended, but not admitted,
patients, and specifically appendicitis patients, who had been
admitted through the emergency room. Moreover, in lieu of actual
experience treating patients in the emergency room, Dr. Malachinski
stated that he merely conversed with emergency room physicians.
This testimony failed to establish that Dr. Malachinski had the
requisite knowledge and experience to render an expert opinion.
Of particular significance to our determination is Northern
Trust Co. v. Upjohn Co., 213 Ill. App. 3d 390 (1991). There,
plaintiff was treated with an intrauterine injection of an
abortion-inducing drug. After the injection, the plaintiff
experienced a cardiac arrest resulting in brain damage. The
plaintiff sued the obstetrician, the hospital, and the drug
manufacturer, tendering a specialist in emergency medicine as her
expert witness. The expert was not an obstetrician, had never
performed an abortion, and had never used, observed the use of, nor
was familiar with the side effects of the abortion-inducing drug.
Northern Trust, 213 Ill. App. 3d at 406. The appellate court found
that the expert was not competent to testify on the basis that his
lack of actual experience made it impossible for him to give an
opinion about whether the obstetrician had deviated from the
accepted or customary medical standards at the time and place of
the event. Northern Trust, 213 Ill. App. 3d at 407. Indeed, the
appellate court warned that the treating physician's "assessment
should not be taken out of the context of the setting in which it
was made," which necessarily included the treating physician's
experiences in performing abortions and other gynecological
procedures. Northern Trust, 213 Ill. App. 3d at 407.
It is this context which is fatal to Dr. Malachinski's
proposed testimony on the care and treatment of the emergency room
physicians. Despite contact with emergency room physicians, Dr.
Malachinski failed to demonstrate that his experiences in practice
imparted the requisite knowledge of the standards of care
applicable to emergency room physicians. A single month spent in
the emergency room many years before while an intern is simply
insufficient experience. No amount of conversation with emergency
room staff will substitute for actual experience in the trenches.
We note that the trial court considered Dr. Malachinski's
qualifications and experience and allowed him to testify about the
sufficiency of the emergency room physicians' reports to the
attending physician, Dr. Berglund, as well as the prescription of
drugs during the emergency room visit. In light of Dr.
Malachinski's lack of experience and the trial court's scrutiny of
his foundational testimony in ruling on the motion in limine, we
cannot say the trial court abused its discretion in barring Dr.
Malachinski's opinions about the care and treatment given by the
Sherman Hospital emergency room.
Similarly, we find that the trial court did not abuse its
discretion by precluding Dr. Malachinski from testifying about Dr.
Michelotti's performance of the surgical procedure or any possible
delays in scheduling diagnostic testing or the surgical procedure.
Dr. Malachinski testified that he dealt with appendicitis patients
as an attending physician and not as a surgeon. He also mentioned
that he had completed a one-month rotation as an intern in general
surgery and that he occasionally had assisted in surgeries. Again,
Dr. Malachinski did not testify to sufficient experience to qualify
him as a surgical expert.
Northern Trust, 213 Ill. App. 3d at 407, again provides
guidance. Dr. Malachinski provided no information that he had ever
actually performed an appendectomy himself or that he holds or held
surgical privileges at any hospitals. Accordingly, the trial court
properly precluded his testimony concerning the surgery and related
topics, such as the timing of the surgery and presurgical testing.
We again note that the trial court allowed Dr. Malachinski to
present his opinion concerning Dr. Michelotti's postsurgical care,
an appropriate decision in view of Dr. Malachinski's experience.
Accordingly, we hold that the trial court did not abuse its
discretion by precluding some of Dr. Malachinski's opinions
relating to matters outside of his professional experience.
In her second issue on appeal, plaintiff argues that the trial
court erred in denying her motion to bar Sherman Hospital's
expert's testimony. Plaintiff asserts that the testimony presented
by Sherman Hospital's expert, Dr. Jacek Franaszek, was cumulative
to that of the emergency room physicians, Drs. McCormack and
Jackson. The admission of evidence is left to the discretion of
the trial court, and the trial court may, in it discretion, exclude
cumulative evidence. See Kozasa v. Guardian Electric Manufacturing
Co., 99 Ill. App. 3d 669, 678 (1981). The trial court's decision
will be disturbed only where there is a clear abuse of discretion.
Kozasa, 99 Ill. App. 3d at 678. Quite simply, there was no abuse
of discretion as Dr. Franaszek's testimony was not cumulative to
that of Drs. McCormack and Jackson. While Drs. McCormack and
Jackson may have testified about the care they gave to plaintiff,
they are agents of one of the defendants in this case. We do not
find the testimony of a disinterested expert witness to be
cumulative to the testimony of a party's agents, even if the agents
could be separately qualified as experts. We hold that the trial
court correctly denied plaintiff's motion to bar Dr. Franaszek's
testimony.
Plaintiff next argues that the trial court erroneously allowed
Dr. Berglund's expert, Dr. Grobe, to present opinions at trial that
were undisclosed during discovery. Plaintiff asserts that, at the
time of his discovery deposition, Dr. Grobe had no opinion
concerning whether Dr. Berglund should have cultured the discharge
from plaintiff's surgical wound. However, plaintiff asserts that,
at the time of trial, Dr. Grobe had developed an opinion on the
topic, stating that culturing the discharge was unnecessary in
order to comply with the appropriate standard of care. We find,
however, that we are unable to reach the merits of plaintiff's
argument due to her failure both to provide us with a complete
record and to preserve the error for our review.
Plaintiff did not include Dr. Grobe's discovery deposition in
the record on appeal. Additionally, we are unable to find any
excerpts from Dr. Grobe's discovery deposition included among any
motions in the record. "The party claiming a Rule 220 violation
must establish by the record that such a violation occurred
[citation], and on review, the appellant has the burden of
presenting the court with an adequate record regarding the claimed
error." Holston v. Sisters of the Third Order of St. Francis, 165 Ill. 2d 150, 163 (1995). Plaintiff has failed to present us with
an adequate record from which to evaluate her claim and,
accordingly, has waived this issue.
Even if the record were adequate, plaintiff's failure to
object at trial or in her posttrial motion specifically to Dr.
Grobe's purportedly undisclosed opinion results in the waiver of
this issue. Contrary to plaintiff's representation, our review of
the trial transcript shows that plaintiff never objected to the
revelation of Dr. Grobe's purportedly undisclosed opinion
concerning culturing. We also note that plaintiff fails to direct
us to the point in the record where she claims to have objected.
Additionally, plaintiff's posttrial motion merely notes that Dr.
Grobe was allowed "to testify to undisclosed opinions" without
specifying what the "undisclosed opinions" were. We note
parenthetically that plaintiff also failed to avail herself of the
opportunity to attach Dr. Grobe's discovery deposition to her
posttrial motion. Accordingly, we find that plaintiff failed to
preserve the alleged error. See Brown v. Decatur Memorial
Hospital, 83 Ill. 2d 344, 352-53 (1980).
Plaintiff next complains that Dr. Berglund's counsel made
improper and prejudicial remarks during closing argument. "Failure
to object to alleged errors in an opponent's closing argument is
considered waiver of the objection. [Citation.] Generally,
failure to object to any impropriety in counsel's closing argument
results in waiver unless comments are so inflammatory and
prejudicial that plaintiff is denied a fair trial." Limanowski v.
Ashland Oil Co., 275 Ill. App. 3d 115, 118 (1995).
Despite plaintiff's representation to the contrary in her
reply brief, the record is devoid of a single objection to Dr.
Berglund's counsel's comments during the entirety of his closing
argument. Additionally, plaintiff again fails to direct us to the
point in the record where her purported objections to Dr.
Berglund's closing remarks were made. We hold, therefore, that
plaintiff has waived this issue on appeal.
Twice now, appellate counsel has asserted that plaintiff's
trial counsel made error-preserving objections, both of which are
utterly unsupported in the record. These misrepresentations of the
record, whether willful or inadvertent, are totally inappropriate,
and we admonish appellate counsel. The repetition of this conduct
will in no way be tolerated.
Waiver aside, we find that Dr. Berglund's closing argument did
not deprive plaintiff of a fair trial. The gist of plaintiff's
argument is that Dr. Berglund improperly suggested that evidence
introduced by him should only be used for his benefit. Our review
shows that Dr. Berglund's argument was directed to questioning the
credibility and reliability of plaintiff's expert, Dr. Malachinski,
versus his own experts. Moreover, plaintiff's closing remarks
invited Dr. Berglund's responses. Accordingly, we find neither
error in the argument nor prejudice to plaintiff.
Plaintiff's final contention on appeal is that the jury
verdict in favor of Dr. Berglund was against the manifest weight of
the evidence. A verdict against the manifest weight of the
evidence is one that is "palpably erroneous and wholly unwarranted,
is clearly the result of passion or prejudice, or appears to be
arbitrary, unreasonable, and not based on the evidence." Damron v.
Micor Distributing, Ltd., 276 Ill. App. 3d 901, 907 (1995).
Plaintiff points to several instances where she claims Dr.
Berglund's expert's testimony conclusively demonstrated that Dr.
Berglund breached the standard of care. We disagree.
We first note that Dr. Grobe, Dr. Berglund's expert,
consistently testified that Dr. Berglund's conduct met the standard
of care. Plaintiff asserts that Dr. Grobe testified on cross-
examination that a patient possibly suffering from appendicitis
should be observed for six to eight hours and that, after a
diagnosis of appendicitis is made, surgery should follow in two to
three hours. Plaintiff then points to evidence which she
interprets to indicate that she was under observation for about 11
hours and that her surgery was performed about five hours after the
diagnosis was made. Plaintiff concludes that this conclusively
demonstrated that Dr. Berglund breached the standard of care. We
disagree.
Plaintiff has characterized Dr. Grobe's cross-examination
testimony too rigidly. Dr. Grobe was careful to maintain
flexibility in the time frames for observation and surgery. He did
not agree to an exact amount of time for either observation or
surgery following a diagnosis. Rather than demonstrating a breach
of the standard of care, this testimony was akin to the impeachment
of Dr. Grobe's opinions. It is axiomatic that impeachment
testimony goes to the credibility of the witness and that
credibility is the sole province of the jury. The jury was
entitled to find Dr. Grobe more credible than Dr. Malachinski even
in light of the highlighted cross-examination testimony. The
jury's verdict was not against the manifest weight of the evidence.
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
GEIGER, P.J. concurs.
JUSTICE BOWMAN, dissenting:
I respectfully dissent. The majority holds that the trial
court did not abuse its discretion by barring portions of Dr.
Malachinski's testimony and relies heavily on Northern Trust Co. v.
Upjohn Co., 213 Ill. App. 3d 390 (1991). However, the evidence in
Northern Trust is factually distinct from this case. In Northern
Trust, the expert never worked in an obstetrical or gynecological
ward and never performed the medical procedure at issue. Northern
Trust, 213 Ill. App. 3d at 406. In addition, he was not familiar
with the method used to perform the medical procedure. Northern
Trust, 213 Ill. App. 3d at 406. Thus, the court found that he was
not competent to testify as an expert witness. Northern Trust, 213
Ill. App. 3d at 407.
In contrast, this case involves testimony regarding an area of
general diagnosis--appendicitis. "A court may take judicial notice
of matters of common knowledge ***." Harris Trust & Savings Bank
v. American National Bank & Trust Co., 230 Ill. App. 3d 591, 597
(1992). It is well established that appendicitis is a common
medical condition familiar to all doctors. In fact, a reasonable
person could find that a doctor who is not familiar with
appendicitis is not qualified to be a doctor.
In this case, the evidence illustrates that Dr. Malachinski
was familiar with the standard of care and system of diagnosis and
treatment used by emergency room physicians. Dr. Malachinski
testified that he was familiar with the standard of care used by
emergency room physicians when treating patients with appendicitis.
During the course of his practice, Dr. Malachinski treated patients
who suffered from appendicitis and who had originally been attended
to in the emergency room. Moreover, Dr. Malachinski communicated
with emergency room physicians regarding the patients he treated.
While serving as an intern, Dr. Malachinski also gained emergency
room experience by examining patients and diagnosing and
prescribing treatment.
The evidence also establishes that Dr. Malachinski was
qualified to testify regarding the standard of care Dr. Michelotti
utilized when scheduling diagnostic tests and performing the
appendectomy procedure. An expert is not required to specialize in
the area of the defendant's expertise or specialty. Jones v.
O'Young, 154 Ill. 2d 39, 43 (1992). Thus, Dr. Malachinski was not
required to be an expert in surgery. During the course of his
medical school training, Dr. Malachinski learned the procedures for
proper care and treatment of appendicitis. Dr. Malachinski also
served as a professor of medicine and instructed his students on
the proper care and treatment of patients who suffered from
appendicitis. Not only did Dr. Malachinski receive sufficient
training, but he also assisted in appendectomies and treated many
patients who had appendicitis.
Accordingly, I would hold that the trial court erred in
barring the testimony of Dr. Malachinski regarding the standard of
care used by both the emergency room physicians and Dr. Michelotti.
By barring the testimony, the trial court deprived the jury of
performing its fact-finding function and allowed it to render a
verdict in favor of defendants. Consequently, plaintiff is
entitled to a new trial against Sherman Hospital and Dr.
Michelotti.