Beard v. Barron ( 2008 )

FIRST DIVISION
January 22, 2008
No. 1-05-1006
DEVONNA BEARD, Special Administrator ) Appeal from the
of the Estate of Vernestine Hudgins ) Circuit Court of
Deceased, ) Cook County.
)
Plaintiff-Appellant, )
)
v. )
)
JOHN T. BARRON and RUSH- )
PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, ) No. 01 L 014065
)
Defendants-Appellees )
)
)
(Hesham Hassaballa, ) The Honorable
) Deborah Mary Dooling,
Defendant). ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
On November 4, 1999, Vernestine Hudgins died of renal
failure associated with Stevens-Johnson syndrome, a painful
condition where large blisters form on the skin caused by a
hypersensitive reaction to medication. Her daughter, the
plaintiff Devonna Beard, filed suit against Hudgins's
cardiologist, Dr. John T. Barron, and Rush-Presbyterian-St.
Luke's Medical Center (Rush)1 through its agents, Dr. Hesham
1
Rush-Presbyterian-St. Luke's Medical Center is now known
1-05-1006
Hassaballa and Dr. Barron, alleging medical negligence. The
plaintiff's theory was that Drs. Barron and Hassaballa failed to
timely detect a bleed in Hudgins's brain, a subdural hematoma,
that caused Hudgins to fall into a state of constant seizures,
status epilepticus, that in turn required the administration of
Dilantin, an antiseizure medication. According to the plaintiff,
Dilantin caused Hudgins's Stevens-Johnson syndrome, which
eventually led to renal failure, causing her death. The jury
returned a verdict in favor of the defendants.
The plaintiff contends on appeal that the circuit court
committed three reversible errors: (1) the trial court misapplied
the Dead-Man's Act (735 ILCS 5/8-201 (West 2004)) when it
reserved ruling on the plaintiff's motion in limine seeking to
bar Dr. Barron from testifying about claimed conversations he had
with Hudgins regarding prior headaches; (2) the trial court
overruled the plaintiff's objection to the defendants' cross-
examination of Dr. William Greenlee as beyond the scope of direct
examination; and (3) the trial court refused to give instructions
pursuant to Illinois Pattern Jury Instructions, Civil, Nos. 30.21
(aggravation of preexisting condition) and 30.23 (injury from
subsequent treatment) (2005). The plaintiff argues that the
as Rush University Medical Center.
2
1-05-1006
errors could have affected the jury's verdict. We affirm.
BACKGROUND
In early July of 1999, Vernestine Hudgins was an active 65-
year-old woman. She enjoyed cooking for her several adult
children, attending church outings, shopping, and traveling.
Hudgins also suffered from numerous cardiac conditions, some of
which required that she be hospitalized several times a year.
Hudgins had congestive heart failure and severe pulmonary
hypertension, both of which were progressing. She also had
massive edema (swelling in her legs and abdomen), and fluid on
her lungs. Hudgins had an irregular heartbeat attributed to
atrial fibrillation. She was taking several medications,
including the diuretics Lasix and Zaraxolyn, and blood pressure
medications, including Digoxin and Lisinopril.
Hudgins also had been receiving anticoagulation therapy
(blood thinners) since 1983, when the mitral valve of her heart
was replaced with a mechanical one. Because blood can clot
around mechanical valves, Hudgins took blood thinners to help
reduce her chances of a stroke. In July 1999, her life
expectancy was three to five years.
On July 6, 1999, Hudgins was admitted to Rush for a
scheduled cardiac catheterization procedure to evaluate her
aortic valve that had started leaking. Rush, a teaching
3
1-05-1006
hospital, uses an approach where a supervising doctor, the
attending physician, oversees fellows, residents, and interns.
The attending physician during Hudgins's July 6 admission was Dr.
Barron, a cardiologist who had been Hudgins's physician since
1988. Hudgins was also treated by Dr. Ajay Baddi, a cardiac
fellow, and Dr. Hassaballa, an intern.
Because the cardiac procedure involved inserting a catheter
into the artery near her groin, the anticoagulation therapy had
to be halted before the procedure was performed. At the time of
her admission, Hudgins was taking the blood thinner Coumadin,
which remained active in her system for several days. In order
to ensure that Hudgins's blood remained adequately
anticoagulated, Coumadin was stopped and Heparin, a blood thinner
that would remain in Hudgins's system for only a few hours, was
introduced. The idea was that Heparin would be stopped a few
hours before the cardiac catheterization procedure began and
restarted once the procedure was over. Hudgins would later
transition back to Coumadin.
Hudgins also received a drug called Norvasc, used to treat
high blood pressure.
Hudgins's cardiac catheterization procedure was performed on
July 9, 1999. She remained at Rush for several days thereafter
while doctors adjusted her blood thinners to a therapeutic level.
4
1-05-1006
On July 10, Dr. Baddi performed a brief neurological exam that
was normal and reported in Hudgins's chart that she had no new
complaints. Dr. Baddi made similar entries in her chart for July
11 and 12.
On July 12, 1999, Hudgins suffered a nosebleed and a
headache. On July 13, she had another nosebleed and headache.
She was given Tylenol and a medication called Ultram. On the
evening of July 13, Hudgins declined further pain medication, but
requested an ice pack for her headache.
On July 14, 1999, Hudgins vomited twice. As a result, she
was given the drug Compazine. She also experienced a 47-point
drop in her systolic blood pressure and a 23-point drop in her
diastolic blood pressure. A nurse's note entered at 4:40 p.m.
indicated that Hudgins denied any complaints, was oriented to
person, place, and time, opened her eyes to sound, had clear and
appropriate speech, and obeyed commands.
On July 17, 1999, Hudgins's headache returned. As a result,
Dr. Barron stopped the medication Norvasc. Hudgins did not
report a headache for the rest of the day on July 17 or on July
18 or 19.
Although her blood-thinning levels were not quite where Dr.
Barron wanted them to be, Hudgins was discharged from Rush on
July 19, 1999. Prior to being discharged, she was instructed on
5
1-05-1006
giving herself an injection of a fast-acting anticoagulant called
Lovenox. She was also placed back on Coumadin. According to
members of Hudgins's family, she complained of a headache and
appeared groggy upon discharge.
Hudgins was taken to the emergency room (ER) at Rush on the
morning of July 20, 1999, because her groin wound from the
cardiac catheterization procedure began bleeding. Dr. Barron met
Hudgins in the ER and applied pressure to the wound. Hudgins was
readmitted so an ultrasound could be performed on the groin area
to detect whether she had a pseudoaneurysm. Coumadin was briefly
stopped. Once the ultrasound came back negative, Coumadin was
restarted. Hudgins was seen by Dr. Hassaballa, who noted that
Hudgins was not experiencing any chest pain, dizziness, or double
vision, but that she was "[p]ositive for headache started in
house on last admission." She was again given Ultram.
On the morning of July 21, 1999, while still at Rush,
Hudgins continued to report a headache, was nauseated, and
vomited twice. At 7:20 a.m., Dr. Hassaballa ordered Compazine to
relieve the nausea and vomiting. When Hudgins was discharged
from Rush at 5 p.m. on July 21, she had a "mild" headache and was
drowsy. Hudgins declined Tylenol for her headache. Her
drowsiness was attributed to Compazine.
Hudgins returned home, where she continued to experience a
6
1-05-1006
headache. In the early morning of July 23, 1999, one of
Hudgins's daughters called 911 because she began turning her head
from side to side and appeared groggy. When the paramedics
arrived, Hudgins's eyes were rolled back, indicative of a
seizure. She was taken to Westlake Hospital (Westlake), where a
computed tomography (CT) scan was performed upon her admission.
The CT scan showed a subdural hematoma and indicated she was in
status epilepticus. Additional CT scans were performed during
her hospitalization at Westlake.
Doctors at Westlake treated Hudgins intravenously with
Dilantin, used to control seizures. She remained in status
epilepticus for about four days and fell into a coma. On July
28, 1999, Hudgins was transferred to Rush, where Dilantin was
continued. Hudgins's seizures eventually stopped, allowing her
to be sent to rehabilitation. However, the seizures soon
returned. In early September, Hudgins developed a rash that soon
turned into open, oozing sores on her back, buttocks and thighs.
The sores, about the size of apples, would fill with fluid and
burst. It was evident to Hudgins's children, who frequently
visited, that she was in pain. Hudgins's daughters took turns
staying with her through the night.
It was determined that Hudgins had developed Stevens-Johnson
syndrome. She also developed pneumonia and her kidneys began to
7
1-05-1006
fail. Hudgins died on November 4, 1999, at the age of 66.
The plaintiff filed suit against Dr. Barron, Dr. Hassaballa,
and Rush,2 alleging medical malpractice. Dr. Hassaballa was
later dropped as an individually named defendant.
A jury trial commenced on September 23, 2004. The
plaintiff's theory was that the standard of care required the
defendants to order a neurological consult of Hudgins on July 17,
1999, as well as a CT scan by July 20 or 21. According to the
plaintiff, Hudgins's nausea, nosebleeds and headaches, combined
with her anticoagulation therapy, should have placed the doctors
on notice that she was experiencing bleeding in her brain.
According to the plaintiff, if the bleeding had been detected
prior to status epilepticus setting in, it could have been
controlled without the administration of Dilantin, which she
contended, caused the Stevens-Johnson syndrome. The plaintiff's
experts opined at trial that had the subdural hematoma been
treated before the seizures developed, the subsequent
complications would not have arisen and Hudgins would not have
died when she did.
As her initial witness, the plaintiff called Dr. Barron to
2
The plaintiff's original complaint named other defendants
not relevant to this appeal.
8
1-05-1006
testify as an adverse witness. The medical charts of Hudgins's
July 6, 1999, admission were also admitted into evidence. To
support her theory that Hudgins's brain was bleeding while she
was still at Rush, the plaintiff presented expert testimony from
Dr. Mary Edwards-Brown, a neuroradiologist and professor of
radiology at Indiana University. Dr. Edwards-Brown reviewed
several images of Hudgins's brain, including CT scans taken on
July 23 and July 28, 1999, at Westlake and a magnetic resonance
imaging (MRI) scan taken at Rush on July 29. It was Dr. Edwards-
Brown's opinion that, within a reasonable degree of medical
certainty, Hudgins's hematoma was in the early subacute phase,
meaning the majority of the bleeding occurred within two days to
a week before the July 29 MRI. However, the images also
indicated the bleeding had occurred over time. Dr. Edwards-Brown
concluded that some of the hematoma was in the late subacute
phase, meaning it occurred as much as two months prior to the
MRI. Because Hudgins's clinical history indicated she was on
anticoagulants, experienced bleeding from her nose and groin
wound, and suffered headaches, Dr. Edwards-Brown opined the
bleeding likely began when Hudgins reported her first headache on
July 12.
The plaintiff also presented the jury with the videotaped
deposition of Dr. William Greenlee, a neuroradiologist. Dr.
9
1-05-1006
Greenlee testified that the July 29, 1999, MRI taken at Rush
indicated Hudgins's bleed occurred several days to several weeks
prior to the scan. On cross-examination, Dr. Greenlee testified
that when looking at the July 29, 1999, MRI and a July 28, 1999,
CT scan together, his opinion was that the age of the bleed was
in the "several days to a week period."
Dr. Robert Heller, a board-certified internist from Los
Angeles, and Dr. Omkar Markand, the Professor Emeritus in the
neurology department at Indiana University, also testified as
experts on behalf of the plaintiff. Both doctors based their
opinions, in part, on the records of Hudgins's 1999 admissions to
Rush and Westlake.
Dr. Markand testified that the standard of care required Dr.
Barron to do more than just take Hudgins off Norvasc on July 17,
1999. Because Hudgins had experienced nosebleeds, headaches,
nausea, and vomiting, Dr. Barron should have requested a
neurological consult and probably should have obtained a CT scan
of Hudgins's head. Dr. Markand testified that because Hudgins's
symptoms were present during her July 20, 1999, admission to
Rush, the standard of care required both a neurological consult
and a CT scan on July 20 and no later than the morning of July
21. Dr. Markand also testified that Hudgins developed Stevens-
Johnson syndrome from receiving Dilantin. In his opinion, had
10
1-05-1006
Hudgins's subdural hematoma been detected by July 21 and
immediately treated, she would not have developed status
epilepticus, would not have required Dilantin, and would not have
developed Stevens-Johnson syndrome.
It was Dr. Heller's opinion that Dr. Barron's treatment fell
below the standard of care because he ignored Hudgins's symptoms
of headache, nausea and vomiting, and did not properly evaluate
those symptoms in light of her anticoagulation therapy by
ordering a neurological consult or a CT scan of her head. Dr.
Heller also opined that Dr. Hassaballa's treatment fell below the
standard of care because he failed to properly report Hudgins's
symptoms of intracranial bleeding to Dr. Barron, his attending
physician, and failed to properly evaluate Hudgins with either a
neurological consult or a CT scan.
The defendants presented expert testimony from Dr. Albert
Ehle, a neurologist and professor of neurology at the University
of Chicago, Dr. Joel Meyer, a neuroradiologist with Evanston
Northwestern Health Care, and Dr. Dan Fintel, a cardiologist at
Northwestern. Drs. Barron and Hassaballa also testified for the
defense.
According to Dr. Meyer, the July 23, 1999, CT scan of
Hudgins's brain indicated the hematoma was acute, meaning it had
occurred within hours or up to one or two days prior to the scan.
11
1-05-1006
Dr. Hassaballa and Dr. Barron each testified that his
respective care of Hudgins met the applicable standard of care.
Dr. Barron testified that Hudgins's nosebleeds and headaches were
not significant because she had experienced them before. He also
testified that because Compazine resolved Hudgins's vomiting,
this was "strong evidence" that the vomiting was not "cephal in
origin."
Dr. Ehle testified that the standard of care did not
require either a neurological consult or a CT scan on July 17,
1999, when Norvasc was discontinued. In his opinion, there was
"no evidence" that the plaintiff had the kind of "persistent,
progressive headaches" that are symptomatic of a subdural bleed
during her first admission to Rush. Dr. Ehle also testified that
the standard of care did not require either a neurological
consult or a CT scan during Hudgins's second admission to Rush.
Dr. Ehle also found it "significant" that Hudgins was "well-known
to the service [provider]" and accordingly her doctors, including
Drs. Barron and Hassaballa, would be "sensitive to any subtle
changes in her behavior that could have been an indication of
something going on." According to Dr. Ehle, the Stevens-Johnson
syndrome could have been caused by antibiotics Hudgins
received, as well as by Dilantin.
Dr. Fintel testified that in his opinion, the standard of
12
1-05-1006
care did not require either a neurological consult or a CT scan
during Hudgins's first or second admission to Rush. According to
Dr. Fintel, clinical signs of a subdural hematoma include a
persistent change in mental status, the inability to follow
commands, clumsiness, neurological abnormalities, and severe
persistent headaches that do not respond to drugs and intensify
over time. According to Dr. Fintel, Hudgins did not experience
any of these symptoms while at Rush. Dr. Fintel also testified
that the complications Hudgins experienced following the subdural
bleed were "inevitable and unavoidable" as well as "not
predictable."
The jury returned a verdict in favor of the defendants, and
the circuit court entered judgment on the verdict. The
plaintiff's posttrial motion was denied, and this timely appeal
followed.
ANALYSIS
I. Dead-Man's Act
In keeping with her theory that Dr. Barron and Dr.
Hassaballa failed to recognize Hudgins's headaches as symptomatic
of a bleed in her brain, the plaintiff filed two motions in
limine seeking to prevent Dr. Barron from testifying that Hudgins
had experienced headaches in the past. It was the plaintiff's
theory that such testimony would violate the Dead-Man's Act (the
13
1-05-1006
Act) (735 ILCS 5/8-201 (West 2004)). The trial court ruled it
was required to first determine under Hoem v. Zia, 159 Ill. 2d
193, 636 N.E.2d 479 (1994), whether the plaintiff's experts would
"open the door" to any prior conversations or events between Dr.
Barron and Hudgins before deciding whether any prior
conversations were admissible. The court stood by its ruling
even after being informed Dr. Barron would be the first witness
to testify.
Although the plaintiff contends otherwise, the issue in this
case turns on the nature of the evidence presented regarding any
prior conversations between Hudgins and Dr. Barron. It is
therefore an evidentiary issue, not an issue of statutory
construction. Accordingly, we review the trial court's ruling
for an abuse of discretion. In re Estate of Hoover, 155 Ill. 2d
402, 420, 615 N.E.2d 736 (1993).
The Dead-Man's Act provides, in relevant part:
"In the trial of any action in which any
party sues or defends as the representative
of a deceased person ***, no adverse party or
person directly interested in the action
shall be allowed to testify on his or her own
behalf to any conversation with the deceased
*** or to any event which took place in the
14
1-05-1006
presence of the deceased ***, except in the
following circumstances:
(a) If any person testifies on behalf of
the representative to any conversation with
the deceased *** or to any event which took
place in the presence of the deceased ***,
any adverse party or interested person, if
otherwise competent, may testify concerning
the same conversation or event." 735 ILCS
5/8-201(a) (West 2004).
Our supreme court has explained that the Act serves two
purposes: (1) protecting decedents' estates from fraudulent
claims; and (2) equalizing the position of the parties in regard
to the giving of testimony. Gunn v. Sobucki, 216 Ill. 2d 602,
609, 837 N.E.2d 865 (2005), citing Hoem, 159 Ill. 2d at 201; see
also M. Graham, Cleary & Graham's Handbook of Illinois Evidence
§606.1, at 334 (8th ed. 2004).
The plaintiff argues the trial court's decision to reserve
ruling on her motions permitted Dr. Barron to inject his prior
experiences with Hudgins and to testify about conversations with
her involving prior headaches. She complains about five specific
instances in the examination of Dr. Barron in support of her
claim.
15
1-05-1006
The first three instances transpired when Dr. Barron was
called as an adverse witness in the plaintiff's case-in-chief.
Dr. Barron testified that he had been Hudgins's doctor since
1989, and he gave a history of the numerous ailments from which
Hudgins suffered. He also explained Hudgins's transitions from
Coumadin to Heparin and back to Coumadin during her July 6, 1999,
admission to Rush. Dr. Barron acknowledged that during the
period of transition, Hudgins was at a greater risk for bleeding
and for suffering a stroke. He acknowledged that a headache
could be a sign of brain-related bleeding. A nosebleed, however,
was not, by itself, a sign of brain-related bleeding. Dr. Barron
testified that a nosebleed was not necessarily a sign of
spontaneous bleeding and explained that nosebleeds could be
caused by irritation from several sources. Dr. Barron also
testified that Hudgins reported nosebleeds in the past, although
he did not recall charting any of those nosebleeds. Dr. Barron
acknowledged that he learned Hudgins was suffering headaches
during the July 6, 1999, admission, but he would not necessarily
report his evaluation of those headaches in her chart. He also
testified that he responded to her headaches by taking her off
Norvasc on July 17. He additionally acknowledged that the
easiest way to determine whether headaches were due to bleeding
in her brain was with a CT scan.
16
1-05-1006
The plaintiff questioned Dr. Barron about his progress notes
of Hudgins's first admission to Rush, which were admitted into
evidence. When asked why his progress notes did not discuss his
evaluation of Hudgins's headaches, Dr. Barron explained his
neurological exams were not necessarily written, but that he
evaluated her speech, mentation and motions every time he saw
her. He further explained that he only recorded "important
factors." The first instance in Dr. Barron's testimony that the
plaintiff contends violated the Dead-Man's Act then occurred.
"Q. Was it not important on July 16th
that Mrs. Hudgins had had headaches during
the days prior to that?
A. [Mrs.] Hudgins had headaches in the
past as well, frequent headaches in the past.
My conversations with her for the past ten
years --
MS. THOMAS [Plaintiff's Attorney]: Move
to strike, Your Honor.
THE COURT: It's stricken. The jurors
are instructed to disregard the answer. Dr.
Barron, just respond to the question asked.
***
THE WITNESS [Dr. Barron]: In my judgment
17
1-05-1006
it was not."
The second instance transpired after counsel for the
plaintiff asked Dr. Barron to read the note he made in her chart
on July 17, 1999, when Norvasc was discontinued.
"A. [Dr. Barron]: It says Cardiology.
Vital signs stable, which is VSS. *** Patient
doing well except complains of headache.
Dieresis continues. Exam, less edema. Plan,
DC Norvasc. Number 2, check PT today. If
INR of 2.0, may DC home on 7.5 milligrams PO,
which means by mouth, every ghs, which means
at night. Coumadin. Then I signed it.
Q. That's the extent of your note --
A. Yes.
Q. -- on the 17th? And this is what we
discussed earlier this morning where in
response to plaintiff's headaches during this
admission, you ordered that she be
discontinued from Norvasc?
A. Are you referring specifically to
the 17th or to the 13th when it was held?
Q. The 17th.
A. Specifically the 17th she told me
18
1-05-1006
that --
[MS. Thomas]: Your Honor, motion in
limine.
***
THE COURT: Start another question.
Strike all that. Just start another
question. And wait for the question. If you
don't understand, say I don't understand. If
you do, just answer the question asked. Go
ahead.
Q. Mrs. Hudgins, her Norvasc was
discontinued on the 17th, correct?
A. Permanently discontinued, yes."
On the above record, we find no error to have occurred. The
plaintiff's timely objections, sustained by the trial court, kept
any offensive testimony from the jury. To the extent Dr.
Barron's answer referenced an improper subject, the trial court
properly instructed the jury to disregard the testimony. The
jury is presumed to follow the trial court's instructions.
People v. Taylor, 166 Ill. 2d 414, 438, 655 N.E.2d 901 (1995).
Consequently, any error that may have occurred was cured.
The plaintiff, in effect, argues that had her motions in
limine been granted prior to Dr. Barron taking the stand, no risk
19
1-05-1006
to the plaintiff of Dr. Barron testifying to such matters would
have occurred. A grant of the motion in limine would have
obviated any need of the plaintiff having to object and avoid
giving the jury the impression that she was trying to hide
evidence.
As this court noted in Compton v. Ubilluz, 353 Ill. App. 3d
863, 871, 819 N.E.2d 767 (2004), trial courts are at a
disadvantage in ruling on motions in limine because such motions
are "considered in a vacuum, before the presentation of the full
evidence at trial that may justify admission or require
exclusion." Here, we cannot say the trial court abused its
discretion by waiting until Dr. Barron actually testified in
order to determine whether the plaintiff would open the door to
any testimony that would otherwise be prohibited by the Act. The
better approach may have been to grant the motion subject to
reconsideration had the door been opened. However, no reversible
error occurred where the trial court sustained the timely
objections. See, e.g., Crumpton v. Walgreen Co., 375 Ill. App.
3d 73, 84, 871 N.E.2d 905 (2007) (to the extent any prejudice
occurred by the defendant's violation of the motion in limine,
"it was cured by the circuit court's instruction to the jury to
disregard counsel's question").
The third instance of which the plaintiff complains happened
20
1-05-1006
when Dr. Barron, still testifying as an adverse witness in the
plaintiff's case, was asked about Hudgins's symptoms on July 20,
1999, when she returned to Rush after her groin wound began
bleeding.
"Q. And you knew she came in, and she
was having headaches on the 20th when she
came in with her groin bleed, correct?
A. When she -- not on the day that she
came in on the 20th. I did not know that.
And she did not report this to me. And I had
no indication that she did have headaches
that morning.
Q. But by the time you signed the
discharge note and the order on the morning
of the 21st, it was clear that she had had
headache yesterday and she was having
headache, nausea, and vomiting in the
morning, correct?
A. Yes.
Q. You knew that?
A. Yes.
Q. Yet that was not enough for you to
order a CT scan?
21
1-05-1006
A. Because she had it several times
before and in previous admissions as well.
MS. THOMAS: Move to strike.
THE COURT: No. Based on your question
overruled. It will stand."
The plaintiff relies on Vazirzadeh v. Kaminski, 157 Ill.
App. 3d 638, 510 N.E.2d 1096 (1987), and Theofanis v. Sarrafi,
339 Ill. App. 3d 460, 791 N.E.2d 38 (2003), to argue this
testimony was improper.
In Vazirzadeh, the issue was whether the defendant doctor
failed to diagnose and treat the decedent's symptoms of a
pulmonary embolism. The decedent's symptoms, including shortness
of breath and chest pain, were not disputed. The defendant
doctor, while testifying as an adverse witness in the plaintiff's
case, testified, in response to questions from his own attorney,
that the decedent told him that his chest pain was of short
duration, was relieved by belching, and was not significant. On
appeal, this court held that the testimony was barred by the Act,
as the plaintiff had not questioned the defendant about that
conversation between the doctor and the decedent. Vazirzadeh,
157 Ill. App. 3d at 645.
Theofanis also involved the situation where the defendant
doctor was cross-examined by his own attorney after being called
22
1-05-1006
as an adverse witness in the plaintiff's case. There, the
defendant doctor sought to testify to a conversation with the
decedent about which the plaintiff's attorney had not asked.
In this case, unlike in Vazirzadeh or Theofanis, the
complained-of testimony was elicited by the plaintiff's own
attorney during an adverse examination. One of the objectives of
the Act is fundamental fairness. Wasleff v. Dever, 194 Ill. App.
3d 147, 153, 550 N.E.2d 1132 (1990). This purpose is not
fulfilled where, as in this case, the plaintiff is permitted to
elicit testimony from the defendant medical doctor during an
adverse examination insinuating that he missed important symptoms
exhibited by his patient, while, at the same time, denying him
the opportunity to answer questions, posed by the plaintiff, as
to why he did not find these symptoms significant to warrant
further testing. Our supreme court has noted:
"It would be palpably unjust if a litigant
were permitted to call an adverse party and
examine him as to one fact or phase of a
transaction in his favor and then invoke the
bar of the statute when the party examined
sought to testify further with regard to the
same transaction for the purpose of
explaining his former testimony or correcting
23
1-05-1006
an erroneous impression left thereby."
Perkins v. Brown, 400 Ill. 490, 497, 81
N.E.2d 207 (1948).
We recognize that the court in Perkins was interpreting a
prior version of the Dead-Man's Act which dealt with
"conversations" or "transactions" while the current Act discusses
"conversations" or "events." Compare Vazirzadeh, 157 Ill. App.
3d at 644, with Zorn v. Zorn, 126 Ill. App. 3d 258, 261-63, 464
N.E.2d 879 (1984) (each case taking a different view as to the
legislature's intent by the change in language). Nonetheless, we
determine, given the facts of this case, that it would be
fundamentally unfair to allow the plaintiff to specifically ask
Dr. Barron why he did not order a CT scan on July 21, the
question suggesting that Hudgins presented with symptoms that
were new and concerning, and then use the Dead-Man's Act to bar
his response why he did not feel the symptoms to be new or
concerning.
The last two instances of which the plaintiff complains
transpired during Dr. Barron's direct examination in the
defendants' case-in-chief.
"Q. Did she, over the years, ever have
nose bleeds?
A. She had several nose bleeds.
24
1-05-1006
Q. Did she, over the years, have
complaints of headache that she at least felt
was due to hypertensive medication?
MS. THOMAS: Objection, motion in
limine."
The parties then discussed the matter outside of the
presence of the jury. Counsel for the plaintiff argued that
there were no reports of prior headaches in any of the charts
admitted into evidence. Counsel also explained that defense
counsel had produced two notations of headaches in Hudgins's
medical records that had not been admitted, one from 1992 and the
other from 1995. The plaintiff's attorney argued that she had
not opened the door to any records prior to Hudgins's July 6
admission, and consequently, any testimony regarding headaches
preceding that date should be barred. The court ruled:
"This is what I'm going to do on this.
Dr. Barron is going to be limited -- saying
you are tracking on the Dead Man's Act as to
the conversation. Dr. Barron is going to be
limited to talking about any headaches that
there is actually a record of on a prior
treatment of Ms. Hudgins. Whether it's in
his medical chart or some other chart, if it
25
1-05-1006
was recorded at the time, then Dr. Barron can
talk about it."
When Dr. Barron's testimony resumed, the following occurred.
"Q. *** Doctor, while she was on the
medications that you told me about, did the
patient have complaints of nose bleeds?
A. Yes.
Q. Did the patient have complaints of
headache?
A. Yes.
Q. Did the patient have complaints of
nausea and vomiting?
A. Yes.
Q. Was Tylenol given for the headaches?
A. Yes.
Q. In dealing with congestive heart
failure patients, you know and have an
understanding of what side effects all of the
medications that patients such as Ms. Hudgins
can have from those medications?
A. Yes."
The plaintiff asserts this ruling, too, was erroneous. We
disagree. We find the supreme court's decision in Hoem, 159 Ill.
261-05-1006
2d 193, instructive.
In Hoem, the issue at trial was whether the defendant
doctors failed to diagnose and prevent the decedent's impending
heart attack. The plaintiff, in her case-in-chief, called an
expert who testified that the decedent's medical records showed
clear signs of a prior heart attack, clear warning signs of an
impending heart attack, and that on October 31, 1988, the
decedent had described angina, a symptom of heart disease, to Dr.
Zia, one of the defendants. It was the plaintiff's expert's
opinion that based upon the information Dr. Zia recorded in his
office notes, Dr. Zia should have recognized the decedent's
complaints as symptomatic of heart disease and responded
accordingly.
Dr. Zia testified about the October 31, 1988, exam in the
defendants' case-in-chief. According to Dr. Zia, the decedent
had not described angina but, rather, had described
musculoskeletal pain. Consequently, Dr. Zia did not believe the
decedent was suffering from heart disease.
The supreme court found that the plaintiff's expert's
testimony and the introduction of Dr. Zia's office notes opened
the door to Dr. Zia's testimony under subsection 8-201(a) of the
Act. The court found the plaintiff's expert, by putting his
"gloss" on the notes, insinuated that the decedent visited Dr.
27
1-05-1006
Zia specifically for a heart-related problem. Hoem, 159 Ill. 2d
at 201. The court explained:
"In this case, allowing the representative of
the deceased to introduce her version of why
[the decedent] went to Dr. Zia, without
giving an equal opportunity to Dr. Zia, would
not advance the policy behind the Act. Under
these circumstances, we find it fundamentally
unfair to deny Dr. Zia an opportunity to
explain his view of what happened. Left
unchallenged, [the plaintiff's expert's]
comments would have remained with the jury as
the only testimony regarding the conversation
between Dr. Zia and [the decedent]." Hoem,
159 Ill. 2d at 202.
In this case, we similarly find that the plaintiff, by
presenting expert testimony establishing that Drs. Barron and
Hassaballa violated the standard of care by failing to recognize
Hudgins's symptoms to be indicative of a subdural bleed, opened
the door to Dr. Barron's testimony that he did not find the
symptoms, including the headaches, to be suspect.
The plaintiff would have us find that Dr. Barron's testimony
about prior headaches referenced conversations that occurred well
28
1-05-1006
before Hudgins's July 1999 admissions. However, we draw no such
conclusion. Rather, we find the prior conversation to be those
that were documented in the medical records admitted at trial and
to which the plaintiff opened the door, namely, the complaints
Hudgins made while at Rush in July 1999. The plaintiff's
experts, including Drs. Heller and Markand, interpreted those
records as indicating Hudgins was experiencing new symptoms,
including headaches and nosebleeds, that Dr. Barron should have
recognized as possibly indicating a subdural bleed. Once the
door was opened to these conversations, Dr. Barron was entitled
to explain his view--that he did not consider these symptoms to
be new because Hudgins had had them before.
The fifth instance happened while Dr. Barron, still
testifying for the defense, was being cross-examined by the
plaintiff's attorney. Counsel asked Dr. Barron about the
medications Hudgins was taking and whether she reported a
headache to him on July 21, 1999.
"Q. Did you know or not know, Doctor,
whether she had headache, nausea, and
vomiting on the morning of the 21st?
A. I was aware from the previous notes
that she had epigastric pain. This is
commonly seen in patients with heart failure,
29
1-05-1006
nausea, vomiting. The headache was of no
consequence. I assessed it as of no
consequence and viewed this patient's
previous history, her medications, that it
did not strike me as important.
Q. It wasn't important?
A. It was her [sic] ordinary [Mrs.]
Hudgins."
We do not find this testimony to be referencing any prior
conversations or events. Moreover, as the plaintiff failed to
make any objection to the testimony, she has waived her
contention that it violated the Act for purposes of appeal. See
In re Estate of Netherton, 62 Ill. App. 3d 55, 59, 378 N.E.2d 800(1978); see also Malanowski v. Jabamoni, 332 Ill. App. 3d 8, 11,
772 N.E.2d 967 (2002).
We consequently find no error in the circuit court's
application of the Dead-Man's Act in this case.
II. Cross-examination of Dr. Greenlee
The plaintiff next contends the trial court committed
reversible error when it ruled the defendants' cross-examination
of Dr. Greenlee was within the scope of direct examination.
Dr. Greenlee is the neuroradiologist who interpreted the
July 29, 1999, MRI of Hudgins's brain at Rush. He indicated his
30
1-05-1006
findings in a report also dated July 29, 1999. That report
states, "[c]orrelative examination is a noncontrast CT scan of
the brain from [Westlake] Hospital dated July 28, 1999." Written
in the "impression" section of the report is "subdural hematoma
in the late subacute stage which is seen along the right frontal,
right parietal and right occipital lobes."
Prior to trial, the plaintiff disclosed Dr. Greenlee as an
independent expert witness pursuant to Supreme Court Rule 213(f)
(210 Ill. 2d R. 213(f)). The plaintiff's Rule 213(f) disclosure
states, "Dr. Greenlee is expected to testify consistent with his
MRI Report dated July 29, 1999."
On September 13, 2004, Dr. Greenlee gave a videotaped
deposition. At the time the deposition was taken, Dr. Greenlee
no longer worked at Rush. As far as can be determined from the
record, when Dr. Greenlee gave his deposition, he was presented
with films of Hudgins's July 28, 1999, CT scan taken at Westlake,
and of the July 29 MRI scan taken at Rush, and the report he
created interpreting the July 29 MRI. On direct examination by
the plaintiff's attorney, Dr. Greenlee stated his July 29 report
determined Hudgins's subdural hematoma was in the late subacute
stage, meaning the bleeding began several days to several weeks
prior to the scan. Dr. Greenlee was not able to approximate the
date on which the bleeding began with more accuracy, explaining,
31
1-05-1006
"[A]ccurately dating subdural hematomas on MR[I] is difficult
because there's quite a bit of variability in the appearance of
subdural hematomas in the subacute stage." Dr. Greenlee also
explained MRI reports describe a hematoma in "the most advanced
stage of breakdown." Thus, Hudgins's subdural hematoma was
classified as being in the late subacute stage "even though there
[were] still blood products which would be from the early
subacute stage." Dr. Greenlee also testified if he wanted to
more specifically age a subdural hematoma showing characteristics
of the early and the late subacute stages, he would refer to the
patient's clinical history or "compare [the MRI scan] to the CT
scan."
Dr. Greenlee testified he used a CT scan of Hudgins's brain
taken at Westlake on July 28, 1999, as a comparison in order to
determine whether the subdural hematoma had changed; for
instance, whether "there was increasing mass effect or new
bleeding." Dr. Greenlee also explained comparing CT scans and
MRI scans was somewhat like comparing apples and oranges because
"[d]ifferent scans show different things to advantage." Dr.
Greenlee testified "within the ability to compare CT and MR[I]"
there had been "no significant change in the size of the subdural
hematoma or the degree of mass effect" between July 28 and July
29. Dr. Greenlee, however, did not testify on direct examination
32
1-05-1006
that he attempted to date the subdural hematoma by interpreting
the CT scan.
When cross-examined by defense counsel, Dr. Greenlee was
asked whether MRI or CT technology was preferred in dating
hematomas. Dr. Greenlee responded that there was no preference,
but that each technology showed different things. In looking at
Hudgins's CT scan, Dr. Greenlee testified the hematoma was
"probably less than one to two weeks old." By comparing the CT
scan with the MRI, Dr. Greenlee's opinion, based upon a
reasonable degree of medical certainty, was the hematoma was in
the "several days to a week period."
Prior to the presentation of Dr. Greenlee's deposition at
trial, the plaintiff's attorney argued defense counsel's cross-
examination went beyond the scope of direct examination and
focused on Dr. Greenlee's interpretation of the Westlake CT scan
rather than the Rush MRI. The plaintiff also asserted Dr.
Greenlee essentially testified as an undisclosed expert witness
on behalf of the defendants. The trial court overruled the
plaintiff's objection. The plaintiff contends on appeal the
trial court's ruling was in error.
As a general rule, cross-examination is limited to the scope
of direct examination. Leonardi v. Loyola University of Chicago,
168 Ill. 2d 83, 105, 658 N.E.2d 450 (1995). "However,
33
1-05-1006
circumstances resting within the witness' knowledge may be
developed on cross-examination that explain, qualify, discredit,
or destroy the witness' direct testimony, even though that
material may not have been raised on direct examination."
Leonardi, 168 Ill. 2d at 105-06. The scope of cross-examination
does not refer to the actual material discussed during direct
examination, but rather to the subject matter of the direct
examination. Neal v. Nimmagadda, 279 Ill. App. 3d 834, 840, 665
N.E.2d 424 (1996). The scope of cross-examination lies within
the sound discretion of the trial court and will not be disturbed
on review absent an abuse of that discretion. Leondardi, 168
Ill. 2d at 102.
In this case, the subject matter of Dr. Greenlee's direct
testimony was the age of Hudgins's subdural bleed. Asking Dr.
Greenlee to date the age of the bleed based on the July 28 CT
scan, which had been used as a comparison when the July 29 MRI
was dated, was not beyond the scope of this subject matter,
especially where it served to explain the testimony Dr. Greenlee
gave during direct examination. This court cannot say the
circuit court abused its discretion.
III. Jury Instructions
A. Instruction based on IPI Civil (2005) No. 30.23
The plaintiff tendered an instruction based on Illinois
34
1-05-1006
Pattern Jury Instructions, Civil, No. 30.23 (2005) (hereinafter
IPI Civil (2005) No. 30.23), titled "Injury from Subsequent
Treatment." The trial court refused to give the instruction
because there was no evidence of subsequent medical negligence or
of subsequent treatment causing or aggravating an injury.
The plaintiff's tendered instruction states, "If defendants
negligently cause a condition of the plaintiff, then the
defendants are liable not only for the plaintiff's damages
resulting from that condition, but are also liable for the
plaintiff's damages sustained by the plaintiff arising from the
efforts of health care providers to treat the condition caused by
the defendant." The jury's verdict was that the defendants were
not negligent. The plaintiff maintains that omitting the
instruction was still error even in the face of the jury's
verdict for the defendants. The plaintiff contends this is so
because the tendered instruction is not strictly a damages
instruction and the failure to give the tendered instruction may
have led to a verdict in favor of the defendants because "the
jury could be confused as to the applicable law."
The Comments to IPI Civil (2005) No. 30.23 support the
plaintiff's position that the instruction may have an impact on a
jury beyond damages because "[a] jury might perceive the
subsequent provider as the wrongdoer and 'acquit[] the defendant
35
1-05-1006
on that basis.' " IPI Civil (2005) No. 30.23, Comments, at 141,
quoting Kolakowski v. Voris, 94 Ill. App. 3d 404, 413, 418 N.E.2d
1003 (1981). The operative notion behind the instruction,
however, is the existence of a "subsequent provider as the
wrongdoer."
On the record before us, as the trial court found, there was
no subsequent wrongdoer; nor has the plaintiff identified any
subsequent wrongdoer. The plaintiff maintains that the
instruction may be given when "there is evidence that a
subsequent health care provider caused or aggravated the injury"
without any showing that such a subsequent provider was
negligent. IPI Civil (2005) No. 30.23, Notes on Use, at 141.
Before this instruction should be given, however, it is necessary
that "the issue of the subsequent medical provider having caused
or aggravated an injury [be] injected into the case." IPI Civil
(2005) No. 30.23, Comments, at 141. The circuit court found no
such issue present in this case.
While the plaintiff focuses on Dilantin being prescribed,
which likely led to the development of the Stevens-Johnson
syndrome which in turn led to renal failure and the death of
Hudgins, there was no evidence that the medical care providers at
Westlake had any choice but to administer Dilantin when Hudgins
was admitted in status epilepticus. In other words, there was no
36
1-05-1006
reasonable basis to contend that the jury might perceive the
health care providers at Westlake to be wrongdoers in prescribing
Dilantin and "acquit the defendants on that basis." The
plaintiff's theory was that the defendants were negligent in not
discovering the subdural hematoma earlier, and had they done so,
the need to prescribe Dilantin might have been avoided. The
administration of Dilantin at Westlake was of no consequence
under the plaintiff's theory.
We find no error on the part of the circuit court in
rejecting this instruction.
B. Instruction based on IPI Civil (2005) No. 30.21
A similar situation exists regarding the trial court's
refusal to give the plaintiff's instruction based on Illinois
Pattern Jury Instructions, Civil, No. 30.21 (2005) (hereinafter
IPI Civil (2005) No. 30.21), titled "Measure of Damages--Personal
Injury--Aggravation of Pre-Existing Condition--No Limitations."
According to the plaintiff, the tendered instruction concerned "a
pre-existing condition which rendered [Hudgins] more susceptible
to injury." The instruction states, "If you decide for the
plaintiff on the question of liability, you may not deny or limit
the plaintiff's right to damages from this occurrence because any
injury to Vernestine Hudgins resulted from a pre-existing
37
1-05-1006
condition which rendered her more susceptible to injury."3
Again, the jury's verdict was that the defendants were not
negligent. Again, the plaintiff maintains that IPI Civil (2005)
No. 30.21 "is not strictly a damages instruction," citing as her
principal authorities Dabros v. Wang, 243 Ill. App. 3d 259, 611
N.E.2d 1113 (1993), and Shvartsman v. Septran, Inc., 304 Ill.
App. 3d 900, 711 N.E.2d 402 (1999).
The plaintiff contends the trial court refused the
instruction because "such an instruction did not belong in a
3
A tension between the rejected instructions likely would
have arisen had both IPI Civil (2005) No. 30.21 and IPI Civil
(2005) No. 30.23 been given in this case. Under IPI Civil (2005)
No. 30.23, the plaintiff's contention appears to be that the
failure of the defendants to timely detect the brain bleed on or
about July 17, 1999, led to the required medical treatment of
administering Dilantin at Westlake, which gave rise to the
damages suffered by the plaintiff. However, under IPI Civil
(2005) No. 30.21, the plaintiff's contention appears to be that
the brain bleed was a preexisting condition, apparently placing
no responsibility on the defendants for the existence of the
condition. We agree with the defendants that the giving of both
instructions would have confused the jury.
38
1-05-1006
medical malpractice/loss of change action." We do not share the
plaintiff's understanding of the circuit court's ruling. Rather,
the trial court ruled that the instruction did not apply "in this
medical malpractice/loss of chance case." The circuit court's
ruling turned not on the application of the doctrine of loss of
chance but on the nature of the claimed "preexisting condition"
present in this case. The facts of this case do not support the
plaintiff's claim of error based on the authorities cited by the
plaintiff.
In Dabros, a mother took her months-old child to her
pediatrician because of her concern over what she characterized
as a "bruise" on the side of the infant's left leg near the knee.
Over the next few months, the mark on the infant's leg started to
rise, became discolored and continued to grow. Eventually, the
mother was referred to the defendant doctor, who recommended
immediate surgery to remove the growth from the plaintiff's leg.
The plaintiff's theory of the case was that by excising the mark
(hemangioma) when he should not have, the defendant aggravated
her already present injury, not that he caused in any way the
hemangioma itself. The existence of the condition of the
hemangioma was uncontested and served as the basis for the
medical treatment the plaintiff received and complained of. We
found error in not giving IPI Civil 3d No. 30.21, but found the
39
1-05-1006
error harmless because "it was not possible for the jury to have
been confused as to what type of injury it was required to find
in order to hold defendant liable for negligently treating
plaintiff." Dabros, 243 Ill. App. 3d at 270.
Shvartsman addresses the situation where the plaintiff had a
preexisting condition that made her more susceptible to injury.
In Shvartsman, the plaintiff suffered an injury to her right
knee, resulting in a displacement of her kneecap, the claimed
injury in the lawsuit. The plaintiff had a preexisting condition
in both knees that made her more susceptible to displace her
kneecap. As one of two grounds for reversing the verdict for the
defendant, we found the circuit court erred in refusing to
instruct the jury with IPI Civil 3d No. 30.21 "because the jury
was not properly informed of the legal effect of a preexisting
injury." Shvartsman, 304 Ill. App. 3d at 905.
Both Dabros and Shvartsman stand for the proposition that
where there is evidence of a preexisting condition that is
aggravated by the claimed negligence or that makes the plaintiff
more susceptible to the type of injury complained of, IPI Civil
No. 30.21 should be given. That proposition has no application
here.
In her main brief, the plaintiff contends that "[i]t was
[her] theory, as articulated to the court, that the pre-existing
40
1-05-1006
condition, the brain bleed, without treatment, developed into a
subdural hematoma that caused seizures." The defendants
challenge this assertion: "[I]t was never quite clear in the
trial court exactly what plaintiff considered the 'pre-existing
condition rendering her more susceptible to injury' to be.
Sometimes she argued that it was 'the need for anticoagulation'
*** other times that it was the subdural hematoma."
Regardless, what is clear is that the "brain bleed" was not
a preexisting condition in the manner of the preexisting
conditions in Dabros and Shvartsman. Contrary to the plaintiff's
claim, the brain bleed was not a preexisting condition but a
condition that may have arisen sometime after she was first
admitted to Rush in July 1999 (there was conflicting expert
testimony as to when the brain bleed may have begun). This
condition in turn triggered medical treatment that led to the
development of Stevens-Johnson syndrome, which in turn led to
renal failure. As made clear by the instructions, the jury was
charged with determining whether the brain bleed developed during
Hudgins's stay at Rush. If the brain bleed arose after Hudgins
left the care of the defendants, then no liability could attach
to the defendants for their failure to detect a condition that
did not exist when she left the defendants' care. Thus, the
brain bleed was not a preexisting condition as that term is used
41
1-05-1006
in either Dabros or Shvartsman to warrant the giving of IPI Civil
(2005) No. 30.21. The circuit court did not err in rejecting the
plaintiff's proposed instruction.4
CONCLUSION
For the reasons stated above, the judgment of the circuit
court of Cook County is affirmed.
Affirmed.
4
We also question the role IPI Civil (2005) No. 30.21 would
have played in the jury's deliberation in light of the following
non-IPI "loss of chance" instruction given over the defendants'
objection. "If you decide or if you find that the plaintiff has
proven that a delay in diagnosis and treatment of Vernestine
Hudgins' brain bleed lessened the effectiveness of the medical
services which she received, you may consider such delay as one
of the proximate causes of her claimed injuries and death." The
jury's verdict for the defendants logically requires the
conclusion that the delay in diagnosis and treatment of the brain
bleed was not a proximate cause of the claimed injuries. Because
there was no negligent delay, it necessarily follows that the
circuit court's rejection of the instruction along the lines of
IPI Civil (2005) No. 30.21 was at most harmless error. See
Dabros, 243 Ill. App. 3d at 270.
42
1-05-1006
CAHILL, P.J., and R. GORDON, J., concur.
43