Cetera v. DiFilippo ( 2010 )

1-09-0691
THIRD DIVISION
August 4, 2010
No. 1-09-0691
CHARLES F. CETERA AND ELIZABETH CETERA, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. )
)
MARY DiFILIPPO, ) Honorable
) Carol P. McCarthy,
Defendant-Appellee. ) Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
Plaintiffs, Charles and Elizabeth Cetera, filed a lawsuit alleging medical negligence
against defendant, Dr. Mary DiFilippo, claiming that defendant was negligent in the diagnosis
and treatment of an infection that Charles sustained following coronary bypass surgery.1
Following a trial, the jury returned a verdict in favor of defendant and against plaintiffs.
Plaintiffs filed a posttrial motion requesting a new trial, which the circuit court denied. On
appeal, plaintiffs contend that the circuit court abused its discretion in denying their posttrial
motion for a new trial where the court committed reversible error by: (1) allowing the
introduction of plaintiffs’ expert Dr. Carl David Bakken’s licensing reprimand into evidence; (2)
allowing defendant’s expert witnesses to present undisclosed opinion testimony; (3) barring
1
Plaintiffs also filed a negligence claim against the hospital, Christ Hospital and Medical
Center, which was dismissed prior to trial.
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plaintiffs from questioning Dr. John Andreoni, a treating physician, regarding his insurance
coverage; (4) allowing cross-examination of plaintiffs’ expert Dr. Rodger MacArthur concerning
his proximate cause opinions relating to the hospital nursing staff's conduct and giving the long
form of Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1989); (5) refusing plaintiffs’
nonpattern loss of chance instruction; (6) giving arbitrary rulings pertaining to cumulative
testimony and cross-examination; and (7) entering erroneous rulings throughout the trial that
cumulatively could have affected the jury’s verdict. For the following reasons, we affirm.
I. BACKGROUND
A. Medical Treatment
Plaintiff Charles Cetera was admitted to the hospital on October 27, 1998, as a 74-year-
old male with complaints of chest pain. Charles was diagnosed with a heart attack due to three
blocked arteries and underwent a surgery known as a coronary artery bypass graft (CABG). The
CABG included the placement of a chest tube in the upper right portion of Charles’s abdomen to
allow for drainage of the chest after surgery. After the tube was removed, a wound remained on
Charles’s abdomen.
Following the CABG procedure, Dr. Rajesh Sehgal, Charles’s cardiologist, determined
that Charles’s cardiac rhythm was normal. On November 3, 1998, Dr. Mariusz Gadula,
Charles’s attending physician, began planning Charles’s discharge from the hospital. Charles’s
hospital chart indicated that he did “great” during physical therapy on that date. There was no
indication that Charles’s doctors observed any redness or issue with the chest tube wound on
November 1, 2, or 3, 1998.
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On November 4, 1998, Dr. Mary DiFilippo was overseeing Charles’s care while Dr.
Gadula was away from the hospital. At 6:30 a.m., Dr. DiFilippo received a telephone call
alerting her that Charles was hypotensive and constipated. Dr. DiFilippo ordered that Charles
not be given his beta blocker medication and that he be given medication for his constipation. At
8:30 a.m., Dr. DiFilippo examined Charles in his hospital room. Dr. DiFilippo observed that
Charles had erythema, or redness, in the upper right quadrant of his abdomen, around the chest
tube wound. Dr. DiFilippo observed that the erythema was “minor” and limited to a two-inch,
“light pink” area around the wound and that Charles had some tenderness and swelling around
the wound. Charles complained of pain around the wound, but was unable to explain if the pain
was constant or intermittent. Dr. DiFilippo also examined Charles’s liver, blood pressure, heart
and extremities.
After examining Charles, Dr. DiFilippo’s impression was that Charles had cellulitis in the
upper right quadrant of his abdomen and low blood pressure. Dr. DiFilippo also considered
whether Charles had problems with his liver or gallbladder. Dr. DiFilippo ordered that 250
milligrams of the antibiotic Keflex be given to Charles four times per day to treat the cellulitis
and that Charles’s blood pressure medication be decreased. Dr. DiFilippo also ordered that
Charles’s cardiac surgeon check the chest tube wound and that Charles undergo a liver function
test. Dr. DiFilippo did not order a complete blood count test because she already knew there was
an infection and she did not order a culture because there was no drainage or any particular area
that could have been cultured without puncturing the wound. Dr. DiFilippo did not consider
calling an infectious disease consultation at that time because the wound was minor and she
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wanted input from the cardiac surgeons.
Later, at 11:30 a.m., on November 4, 1998, Dr. Pappas, a cardiovascular surgeon,
examined Charles and ordered an ultrasound of Charles’s upper right quadrant. Dr. Pappas did
not change Charles’s Keflex medication or order an additional antibiotic. At 12:40 p.m., Dr.
Cozy, a cardiologist, examined Charles and noted in Charles’s medical chart that he was taking
antibiotics. Dr. Cozy requested an infectious disease consultation but did not change the Keflex
medication.
At 4:30 p.m., Dr. Gordon, a cardiac surgeon, examined Charles and diagnosed a chest
wall infection. Dr. Gordon added the antibiotic vancomycin, which is used to treat methicillin-
resistant staph aureus (MRSA) infections, to the prior order for Keflex. Dr. Gordon requested an
infectious disease consultation but did not alter the Keflex medication. At 7 p.m., a nurse called
Dr. DiFilippo to report that Charles was not eating well and Dr. DiFilippo ordered the nurses to
provide a can of a nutritional supplement with Charles’s meals.
At 1 a.m., on November 5, 1998, a nurse contacted Dr. DiFilippo to report that Charles
had low blood pressure. Dr. DiFilippo ordered that Charles be immediately evaluated by the
house staff at the hospital. Dr. Anita Ekambarm, a first-year resident, examined Charles and
called Dr. DiFilippo at 2 a.m. Dr. Ekambarm reported that Charles had low blood pressure and
that the erythema had spread to the lower right quadrant of his abdomen. The erythema was
tender and Charles had an increased temperature. Dr. DiFilippo and Dr. Ekambarm’s differential
diagnosis was sepsis or a heart attack. A complete blood count (CBC) was ordered to determine
if Charles was septic and intravenous fluids were ordered to treat his low blood pressure. Dr.
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DiFilippo continued the Keflex and vancomycin.
At 4:30 a.m., a nurse observed that Charles’s chest tube wound was open and had a
bloody drainage. Dr. Ekambarm ordered a blood culture of the drainage. Dr. Ekambarm
believed that she notified Dr. DiFilippo of the drainage, but Dr. DiFilippo did not recall receiving
a call regarding the drainage.
At 9:05 a.m., on November 5, 1998, Dr. Gadula examined Charles after his return to the
hospital. Prior to the examination, Dr. Gadula discussed Charles’s care with Dr. DiFilippo in
preparation for resuming his care of Charles. Dr. Gadula noted that Charles had abdominal pain,
he was slightly lethargic and weak, had mild nausea with no vomit or diarrhea, and his blood
pressure was in the 95 range. Dr. Gadula’s impression was that Charles had a possible chest wall
infection extending from the chest tube wound. Dr. Gadula noted that Charles had been on the
antibiotics Keflex and vancomycin, and that an infectious disease consultation was pending. Dr.
Gadula ordered intravenous fluids, a blood culture, a complete blood test, a urine analysis, and
that Charles’s vital signs be monitored. Dr. Gadula did not change the antibiotic medications.
At 9:30 a.m., Dr. Andreoni, an infectious disease consultant, examined Charles. Dr.
Andreoni observed erythema on the right side of Charles’s abdomen, which was spreading along
his right flank. Dr. Andreoni noted that the erythema was tender, painful, and the skin was
swollen. Dr. Andreoni’s impression was cellulitis of the abdominal wall consistent with a strep
or mixed flora infection. Dr. Andreoni ordered the Keflex be discontinued and that the broad
spectrum antibiotic Unasyn be administered by IV every six hours, as soon as possible. Dr.
Andreoni continued the vancomycin.
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The same morning of November 5, 1998, Charles was also examined by his cardiologist,
Dr. Sehgal. Dr. Sehgal noted that Charles had abdominal pain and an infection where the CABG
was performed. Dr. Sehgal ordered a blood gas test, a CT scan of Charles’s abdomen, a surgical
consultation, and that Charles be transferred to the intensive care unit.
At 1:30 p.m., on November 5, 1998, Dr. Gerald Klompien, a general surgeon, examined
Charles and observed that Charles had a spreading cellulitis over the right abdominal wall. Dr.
Klompien noted that he did not see crepitation, or gas, in the infected tissue, which would evince
dying tissue. Dr. Klompien did not take Charles to surgery immediately because he did not find
any crepitation, Charles appeared stable, and had just been started on IV antibiotics.
Around midnight on November 5, 1998, Dr. Klompien took Charles to surgery to
oxygenate the infected tissue. During surgery, Dr. Klompien encountered a thin, watery fluid and
healthy muscle with the fat above it bleeding, which was a positive sign that a blood supply
remained, allowing antibiotics to get to the tissue. Dr. Klompien diagnosed Charles with
necrotizing fasciitis.
On November 7, 1998, Charles underwent a second skin surgery to remove more tissue
from the abdomen that had died after the first surgery. Charles’s infection continued to spread
and he underwent a third surgery on November 9, 1998, to remove tissue from his right flank,
upper right leg, groin, and chest.
On November 10, 1998, Dr. Riccardo Izquierdo, a plastic surgeon, performed a more
aggressive surgery to remove all of the necrotic tissue plus an additional two to three centimeters
of healthy tissue in order to stop the infection. Dr. Izquierdo removed portions of the fat, muscle
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and fascia in the right groin, right upper leg, the buttock, and the back. On November 21, 1998,
Dr. Izquierdo performed surgery to take skin from Charles’s thighs and graft the skin to his open
wounds.
B. Plaintiffs’ Experts
At trial, plaintiffs called Dr. Carl David Bakken to testify, as a physician specializing in
internal medicine and infectious diseases. Dr. Bakken testified that he reviewed Charles’s
medical charts, including Dr. DiFilippo’s examination of Charles at 8:30 a.m. on November 4,
1998. Dr. Bakken disagreed with Dr. DiFilippo’s diagnosis of mild cellulitis because of the
location and redness combined with Charles’s weakness, low blood pressure, and complaints of
pain. Dr. Bakken testified that the standard of care required Dr. DiFilippo to order a complete
blood count to determine if Charles’s white blood count was elevated and to initiate appropriate
broad spectrum intravenous antibiotics rather that a very small dose of oral Keflex. Dr. Bakken
testified that Keflex is appropriate for treating cellulitis in a hospitalized patient to treat a minor
infection, such as some redness of the finger or toe, where there are no signs of systematic
infection. Dr. Bakken testified that Keflex is never appropriate for treating cellulitis appearing at
the site of a five-day-old surgical wound. Dr. Bakken also testified that Dr. DiFilippo should
have considered additional diagnoses, such as a drug rash and deeper tissue involvement.
In addition, Dr. Bakken criticized Dr. DiFilippo’s differential diagnosis on November 5,
1998, after discussing Charles’s condition with Dr. Ekambarm. Dr. Bakken testified that
Charles’s vital signs at 2 a.m. indicated that he was “quite sick” and he disagreed with Dr.
DiFilippo’s differential diagnosis of “sepsis versus heart attack.” Rather, Dr. Bakken testified
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that in his opinion, Charles had “evidence of a significant soft tissue infection which had spread
to not only involve the great area of the right quadrant, but also involving the right lower
quadrant of [Charles’s] abdomen.” Dr. Bakken opined that Dr. DiFilippo violated the standard
of care by failing to recognize and diagnose a “systematic infection” and provide a differential
diagnosis which included necrotizing fasciitis.
With regard to proximate causation, Dr. Bakken opined that, had Dr. DiFilippo
recognized the severity of the infection on November 4, 1998, and ordered a broad spectrum
intravenous antibiotic or contacted the infectious disease consultant, Charles would have lost
significantly less tissue and required less surgery. Dr. Bakken testified that the infection could
have been contained to the abdominal area with the proper diagnosis.
During recess of Dr. Bakken’s direct examination, defendant advised the court of her
intent to cross-examine Dr. Bakken regarding a reprimand he received on his license from the
Illinois Department of Professional Responsibility pertaining to his misdiagnosis of a medical
condition in a patient under his care. Plaintiffs responded that the reprimand had no relevance to
this case where it did not relate to Dr. Bakken’s credibility or ability to testify and the reprimand
did not prevent him from practicing. Plaintiffs also suggested that the circuit court voir dire Dr.
Bakken. The circuit court ruled that defendant would be allowed to ask Dr. Bakken if he had
received the reprimand in question.
During cross-examination, Dr. Bakken admitted that in 2007, he received a letter of
reprimand from the Illinois Department of Professional Regulation to his medical license for
failing to diagnose microhematuria in a patient.
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Dr. Rodger MacArthur, a medical doctor specializing in internal medicine and infectious
diseases, also testified as plaintiffs’ expert and provided opinions on the standard of care and
causation. Dr. MacArthur opined that Keflex was not an appropriate antibiotic for Charles on
November 4, 1998. Dr. MacArthur testified that Keflex was not appropriate because it does not
cover the kind of organisms that are present in the hospital setting. Dr. MacArthur explained the
differences between Keflex, which is an antibiotic given by mouth, and Unasyn, which is an IV
antibiotic that delivers much higher levels of antibiotic to the blood and tissues. Dr. MacArthur
testified that at 8:30 a.m., on November 4, 1998, Unasyn would have been the best antibiotic to
give Charles, and had Unasyn been prescribed at that time, it would have slowed the spread of
infection. Dr. MacArthur testified that the standard of care in 1998 required that an internist
have basic knowledge of antibiotics, including the appropriate amount of drug concentration that
would get into the serum, and the appropriate antibiotics to use for a postoperative surgical
patient with a skin infection. Dr. MacArthur opined that Dr. DiFilippo deviated from the
standard of care in this regard.
Dr. MacArthur testified that Charles would have developed necrotizing fasciitis by 4:30
a.m., on November 5, 1998. However, Dr. MacArthur’s opinion was that if the right antibiotics
had been given to Charles at either 8:30 a.m. on November 4, 1998, or at 4:30 a.m. on November
5, 1998, it could have slowed the spread of infection and limited it to Charles’s abdominal wall.
Dr. MacArthur also offered a proximate causation opinion that Charles lost a chance at a better
outcome because he was given Keflex on the dates in question. Dr. MacArthur opined that
Charles would have lost “substantially less tissue,” experienced “substantially less scarring,” and
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needed “substantially fewer surgeries.”
On cross-examination, Dr. MacArthur acknowledged that necrotizing fasciitis was
present in Charles on the morning of November 4, 1998, when he was examined by Dr.
DiFilippo. Dr. MacArthur also testified that necrotizing fasciitis and cellulitis have common
symptoms such as redness and pain, but that necrotizing faciitis is uncommon and multiple
surgical procedures for debridement are required to treat necrotizing fasciitis. Dr. MacArthur
also testified, over plaintiff’s objection, regarding his withdrawn opinion that nursing records
indicated missed doses of intravenous antibiotics on November 5 and November 6, 1998. Dr.
MacArthur testified that Unasyn was ordered at 10 a.m. on November 5, 1998, to be
administered as soon as possible and every six hours. However, the first dose was not
administered until 7 p.m. on November 5, 1998, and Charles did not receive a second or third
dose of Unasyn. Dr. MacArthur testified that had Charles received a timely first, second, and
third dose of Unasyn, the necrotizing fasciitis most likely would not have spread outside of his
abdomen.
Elizabeth Cetera, Charles’s wife, testified regarding the pain Charles endured following
his many surgeries and his rehabilitation. Elizabeth also testified regarding how Charles’
lifestyle and personality permanently changed after his surgeries.
C. Defendant’s Experts
Dr. DiFilippo testified that she was a board-certified doctor of internal medicine doctor.
She testified that she retired from her medical practice in 2006. Dr. DiFilippo testified that
cellulitis is a superficial skin and soft tissue infection that is fairly common. Dr. DiFilippo
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testified that cellulitis typically requires antibiotic medication for treatment and it can take up to
three days to stop the infection from progressing. Dr. DiFilippo testified that Keflex, Unasyn,
and other antibiotics are appropriate to treat cellulitis in a hospital setting depending on the
severity of the infection and the patient.
Dr. DiFilippo testified that on the morning of November 4, 1998, 250 milligrams of
Keflex, four times a day, was an appropriate prescription for Charles’s apparent cellulitis because
the infection was mild and based on Charles’s age and kidney function. Dr. DiFilippo opined
that she followed the standard of care in treating Charles’s infection which appeared as cellulitis
on November 4, 1998. Dr. DiFilippo explained that strep and staph bacteria are the most
common causes of cellulitis and that Keflex is used to treat those types of bacteria. Dr. DiFilippo
testified that Charles’s symptoms of low blood pressure, weakness, and chest pain were
consistent with his recent cardiac surgery. She believed she met the standard of care in not
changing the Keflex prescription where she evaluated Charles’s overall condition and based on
the fact that Charles was not toxic.
Dr. Mariusz Gadula testified that he is board certified in internal medicine and was
Charles’s treating physician during the relevant time period. Dr. Gadula testified that Keflex is a
cephalosporin antibiotic that is “very good” for cellulitis skin infections and other infections
caused by strep and staph bacteria. Dr. Gadula testified that strep and staph bacteria are the most
common bacteria that would be expected to cause cellulitis near a chest tube wound. Dr. Gadula
opined that Keflex was an appropriate medication to treat Charles’s apparent cellulitis infection
on November 4 and 5, 1998, and that Keflex is the medication used most often to treat such an
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infection.
Dr. John Andreoni, a board-certified medical doctor specializing in infectious diseases,
testified that he treated Charles in 1998. Dr. Andreoni explained that Charles had developed
necrotizing fasciitis, which is an infection that occurs in the skin, soft tissue, and deeper layers of
the skin. Dr. Andreoni further explained that necrotizing fasciitis destroys cells, requires
multiple surgeries for treatment, and has a high mortality rate.
Dr. Andreoni testified that Keflex is an oral antibiotic that covers skin and soft tissue
infections, including infections caused by E. coli bacteria. Dr. Andreoni testified that Keflex is
commonly used in hospitals to treat cellulitis and his opinion was that it was appropriate for Dr.
DiFilippo to prescribe 250 milligrams of Kefles four times per day to treat Charles’ infection.
Dr. Andreoni testified that a doctor should only treat a patient based upon what the doctor thinks
is going on and avoid causing damage by overtreating a patient.
Dr. Andreoni testified that he was not critical of the doctors who treated Charles between
the morning of November 4 and November 5, 1998, for not changing the Keflex prescription
because the antibiotics must be given time to see if they will stop the infection. Dr. Andreoni
testified that when he examined Charles at 9:30 a.m., on November 5, 1998, Keflex had not
stopped the infection from spreading. As a result, it was time to change medications to account
for other, less common bacteria.
Dr. Andreoni testified that Charles was diagnosed with necrotizing fasciitis after his first
surgery. Dr. Andreoni testified that a culture later revealed that the infection was caused by E.
coli bacteria that was moderately resistant to antibiotics. Dr. Andreoni testified that E. coli
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bacteria was not a common cause of infections such as Charles’s infection, but it did not change
Charles’s treatment. Dr. Andreoni explained that necrotizing fasciitis is treated by multiple
surgeries to remove dead tissue and halt the spread of toxins that kill the tissue. Dr. Andreoni
testified that antibiotic medication plays little role in this treatment and antibiotics alone would
not have cured the necrotizing fasciitis. Dr. Andreoni opined that regardless of the strength or
type of antibiotics prescribed to Charles, the antibiotics alone would not have been successful in
combating the infection because surgical debridement is necessary to treat necrotizing fasciitis.
Dr. Andreoni testified that Charles’s course of treatment would have been the same even if he
had been prescribed Unasyn on November 4, 1998, at 8:30 a.m., instead of Keflex.
Dr. John Sabbia, a board-certified general internist, testified as a retained expert on
defendant’s behalf. Dr. Sabbia explained that cellulitis is a superficial spreading infection of the
skin that can develop around puncture wounds, such as Charles’s chest tube wound. Dr. Sabbia
opined that Dr. DiFilippo met the standard of care with respect to Charles’s treatment on
November 4, 1998, where Dr. DiFilippo took responsibility for his care, took a history, did an
examination, made an impression of what was going on with the patient and treated him, and
ordered other tests to differentiate what else might possibly be going on with the patient.
Dr. Sabbia testified that cellulitis was a reasonable diagnosis for a patient with a chest
tube wound and Keflex was an appropriate antibiotic to treat cellulitis. Dr. Sabbia explained that
cellulitis is typically caused by a staph or strep bacteria and Keflex is used to treat such bacteria.
Dr. Sabbia testified that the 250-milligram dose of Keflex prescribed by Dr. DiFilippo was an
appropriate dose, given Charles’s weight, age, kidney and liver function. Dr. Sabbia testified that
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it was appropriate for Dr. DiFilippo to order the cardiac surgeon to check Charles’s wound
because the surgeon who created the wound is primarily responsible to care for the wound. Dr.
Sabbia also testified that it was appropriate for Dr. DiFilippo to order liver function tests and a
hepatic panel to explore for gallbladder and liver problems. Dr. Sabbia opined that a CBC test
was not needed because Dr. DiFilippo already knew there was an infection and an infectious
disease consultation would have been premature given the small area of infection at the time.
With respect to Dr. DiFilippo’s treatment of Charles on November 5, 1998, Dr. Sabbia
opined that it was within the standard of care to consider a diagnosis of sepsis given the change
in the patient and to order a blood culture and CBC test to rule it out. Dr. Sabbia testified that
Dr. DiFilippo was not required to change the Keflex medication because a doctor has to give
antibiotics a chance to work. Dr. Sabbia also testified that Dr. DiFilippo did not need to order an
infectious disease consultation at that point because one had already been ordered.
Dr. John Flaherty, board certified in internal medicine and infectious diseases, testified as
an expert for defendant. Dr. Flaherty testified that necrotizing fasciitis can sometimes present as
cellulitis because the necrotizing fasciitis infection is deep in the tissue and the only outward
signs of the infection are redness and swelling on the skin’s surface. Dr. Flaherty explained that
both cellulitis and necrotizing fasciitis can spread rapidly, but necrotizing fasciitis is a rare
disease that requires multiple, aggressive debriding surgeries.
Dr. Flaherty testified that 90% of cellulitis infections are caused by staph or strep bacteria
and that cellulitis was a proper diagnosis when Dr. DiFilippo examined Charles at 8:30 a.m., on
November 4, 1998. Dr. Flaherty testified that Keflex was the most commonly used antibiotic to
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treat cellulitis and the 250-milligram dose of Keflex was appropriate for an adult without a
significant infection, who is older with an average body size and a lower kidney function. Dr.
Flaherty opined that Charles’s outcome would not have been different if Unasyn, rather than
Keflex, had been prescribed at 8:30 a.m., on November 4, 1998. Dr. Flaherty explained that
antibiotics would not have stopped the infection from progressing and surgical debridement was
required.
Dr. Flaherty testified that on the morning of November 5, 1998, it was too early to know if
the Keflex and vancomycin treatment was working. Dr. Flaherty explained that cellulitis
commonly gets worse before it gets better and the antibiotics might need several days to work
against the infection. Dr. Flaherty testified that the only hope to treat necrotizing fasciitis is to
recognize it as early as possible and begin debriding surgeries. Dr. Flaherty testified that Charles
was diagnosed with the necrotizing fasciitis infection following his first debriding surgery on
November 6, 1998, and it was later determined that the infection was caused by E. coli bacteria.
Dr. Flaherty opined that E. coli rarely causes cellulitis or necrotizing fasciitis.
Following closing arguments and deliberations, the jury returned a verdict in favor of
defendant. In a written order, the circuit court denied plaintiffs’ posttrial motion for a new trial.
Plaintiffs now appeal.
II. ANALYSIS
A. Evidence of Dr. Bakken’s Licensing Reprimand
Plaintiffs first contend that the circuit court committed reversible error when it allowed
defendant to cross-examine Dr. Bakken concerning a reprimand on his medical license.
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According to plaintiffs, this reprimand was inadmissible where Dr. Bakken had no restriction
placed on his license and the reprimand was unrelated to his professional opinion.
Defendant initially argues that plaintiffs waived this issue for appeal by failing to object
to the question about the reprimand itself and only interposing an objection after the answer was
given and the defense asked the witness about the basis for the reprimand. The record shows that
the following exchange occurred during Dr. Bakken’s cross-examination:
“[DEFENSE COUNSEL]: Doctor, isn’t it true last year your medical license to
practice medicine was reprimanded by the State of Illinois?
[DR. BAKKEN]: There was a letter of reprimand issued because of a case that I
was involved in, that’s correct.
[DEFENSE COUNSEL]: And that reprimand was issued because you failed - -
[PLAINTIFF'S COUNSEL]: Objection.
[THE COURT]: Overruled.
[DEFENSE COUNSEL]: A reprimand was issued because you failed to recognize
the presence of microhematuria in a patient, correct?
[PLAINTIFF'S COUNSEL]: Objection.
[THE COURT]: It’s noted for the record.
[PLAINTIFF'S COUNSEL]: Judge, we do need a side bar.
[THE COURT]: No. You had 45 minutes on this. You may make your record
later. The jury is going home at one hour and four minutes.
[DEFENSE COUNSEL]: I don’t know that you answered that question, Doctor.
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Did you receive that letter of reprimand from the State of Illinois, the Illinois Department
of Professional Regulation for the failure to recognize the presence of microhematuria in
a patient?
[DR. BAKKEN]: Yes.”
Generally, a contemporaneous objection to the evidence at the time it is offered is
required to preserve the issue for review. Simmons v. Garces, 198 Ill. 2d 541, 569 (2002). On
the other hand, to save a question for review, an objection need not be repeated each time similar
matters are presented where the court has previously ruled. Spyrka v. County of Cook, 366 Ill.
App. 3d 156, 165 (2006). Once the court has ruled, a party is entitled to assume that the trial
judge will continue to make the same ruling and that he need not repeat the objection. Spyrka,
366 Ill. App. 3d at 165.
In this case, during recess of Dr. Bakken’s direct examination, defendant advised the
circuit court of her intent to cross-examine Dr. Bakken regarding the reprimand from the Illinois
Department of Professional Responsibility. Plaintiffs objected at that time and argued the
evidence was irrelevant. The circuit court ruled that defendant would be allowed to ask Dr.
Bakken whether he received a reprimand. Then during the cross-examination, the circuit court
denied plaintiffs’ request for a side bar regarding evidence of the reprimand and the court
explained that plaintiffs had “45 minutes on this.” The court concluded by telling plaintiffs to
“make your record later.” While plaintiffs did not make a further record after this exchange,
based on this record, plaintiffs were entitled to conclude that the circuit court would continue to
make the same ruling and were not required to repeat the objection.
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Turning to the merits, plaintiffs, relying on Creighton v. Thompson, 266 Ill. App. 3d 61(1994), argue that the evidence of Dr. Bakken’s reprimand was inadmissible to challenge his
credibility because no restriction was placed on Dr. Bakken’s practice.
The latitude afforded in cross-examination is within the discretion of the circuit court,
reversible only for a clear abuse of discretion resulting in manifest prejudice to a party.
Creighton, 266 Ill. App. 3d at 69. The principal safeguard against errant expert testimony is the
opportunity of opposing counsel to cross-examine, which includes the opportunity to probe bias,
partisanship, or financial interest. Creighton, 266 Ill. App. 3d at 69.
In Creighton, this court upheld the circuit court’s determination, allowing the defendants
to cross-examine the plaintiff’s expert doctor concerning the current restrictions on his medical
license at the time of his testimony. Creighton, 266 Ill. App. 3d at 69. In Creighton, the circuit
court permitted the jury to be informed of two restrictions on the expert’s medical license,
namely, that the licensing agency could conduct announced and unannounced inspections of his
practice and that a physician-proctor was to review periodically the doctor’s patient records.
Creighton, 266 Ill. App. 3d at 69. This court found the information highly relevant to the
doctor’s credibility because his expert testimony concerned “whether other physicians failed to
exercise the appropriate standard of medical care during the precise time frame in which his
home licensing authority required that his professional practices be audited.” Creighton, 266 Ill.
App. 3d at 69. This court also noted that the circuit court “carefully crafted” its ruling so that the
jury would not be informed of the expert’s criminal convictions or his history of disciplinary
action. Creighton, 266 Ill. App. 3d at 69. Under these circumstances, this court concluded that
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“any prejudice resultant to plaintiff’s case was well warranted.” Creighton, 266 Ill. App. 3d at
69.
In Creighton, this court also distinguished a prior opinion in O’Brien v. Meyer, 196 Ill.
App. 3d 457 (1989). In O’Brien, the appellate court ruled that a medical expert could not be
cross-examined about a previous failure to pass the Illinois licensing examination, since that
information’s prejudicial impact outweighed its scant probative value. O’Brien, 196 Ill. App. 3d
at 464-65. In Creighton, this court distinguished O’Brien on the basis that, after securing his
license, the medical expert’s professional conduct was called into question and was thought to
warrant continuing surveillance. Creighton, 266 Ill. App. 3d at 69-70. This court also
distinguished Poole v. University of Chicago, 186 Ill. App. 3d 554 (1989), which held that
reversal was required where the jury was informed of disciplinary proceedings pending against
an expert. In Creighton, this court noted that no charges were pending against the expert, but
rather his practices were already found sufficiently wanting so as to require professional
oversight. Creighton, 266 Ill. App. 3d at 70.
Other jurisdictions have also held that a medical expert may be cross-examined with
evidence of discipline affecting his or her medical license. See Richmond v. Longo, 27 Conn.
App. 30, 34-40, 604 A.2d 374, 376-79 (1992) (holding that party should have been allowed to
cross-examine physician expert with evidence that his license had been terminated due to his
“mishandling” of cases); Whisenhunt v. Zammit, 86 N. C. App. 425, 358 S.E.2d 114 (1987)
(suspension of physician expert’s staff privileges from two hospitals was properly admitted to
allow the jury to weigh the expert’s testimony).
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Here, plaintiffs maintain that, under Creighton, a physician expert can only be cross-
examined regarding discipline if it resulted in a restriction on his or her practice. However, this
court’s decision in Creighton contains no such specific limitation. Rather, this court determined
that the fact that the physician expert was unable to practice medicine without supervision was
“highly relevant” to his credibility where his testimony pertained to whether other physicians
failed to exercise the appropriate standard of medical care. Creighton, 266 Ill. App. 3d at 69.
Similarly, the jury in this case was informed that Dr. Bakken received a letter of
reprimand from the licensing board for “the failure to recognize the presence of microhematuria
in a patient.” This information was relevant to Dr. Bakken’s credibility because his testimony
concerned whether Dr. DiFilippo exercised the appropriate standard of medical care during her
treatment of Charles. Specifically, Dr. Bakken disagreed with Dr. DiFilippo’s diagnosis on
November 4, 1998, that Charles suffered from “mild cellulitis” at the site of his chest tube wound
based on the fact that there was “redness accompanied by the patient feeling weak and
complaining of pain and having low blood pressure.” Dr. Bakken criticized Dr. DiFilippo for
failing to conduct certain testing and consider additional diagnoses, such as the possibility of
deeper tissue involvement. Dr. Bakken opined that Dr. DiFilippo violated the standard of care by
failing to recognize and diagnose a “systematic infection” and provide a differential diagnosis
which included necrotizing fasciitis. Dr. Bakken testified: “The standard of care required that
Dr. DiFilippo at a minimum obtain a CBC, which is a complete blood count, to determine if the
white count was elevated and the extent of elevation. And the standard of care also required that
Dr. DiFilippo initiate appropriate broad spectrum intravenous antibiotics rather than a very small
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dose of oral Keflex.”
Plaintiffs assert that there was no relevant link between Dr. Bakken’s failure to learn of
microhematuria, or unseen blood in urine, and his opinion that Dr. DiFilippo should have
considered the possibility of a more serious soft tissue infection and treated it with the
appropriate antibiotics. However, the fact that the Illinois Department of Professional Regulation
found it necessary to reprimand Dr. Bakken for the failure to recognize the presence of
microhematuris reflects on Dr. Bakken’s qualifications and had some tendency to lessen his
credibility as an expert. See LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d
806, 822 (2008) (relevant evidence is evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable than it would be
without the evidence). Accordingly, we cannot say that the circuit court abused its discretion in
allowing this evidence.
Furthermore, we note that “it is 393 Ill. App. 3d 806, 814 (2009), quoting
Stricklin v. Chapman, 197 Ill. App. 3d 385, 388 (1990). Even if it were error to allow evidence
of Dr. Bakken’s reprimand, such error would be harmless where plaintiffs have not shown that
the brief questioning permitted by the circuit court in this case caused prejudice to plaintiffs’
case.
Plaintiffs further argue that they were prejudiced where the circuit court “rebuked”
plaintiffs’ counsel for requesting a sidebar during cross-examination of Dr. Bakken. While a trial
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judge has the power to admonish or rebuke counsel for misconduct, any rebuke in the presence of
the jury should not exceed the bounds of necessity and care must be taken even then to admonish
in a manner which will not deprive either party of a fair trial. Lopez v. Northwestern Memorial
Hospital, 375 Ill. App. 3d 637, 652 (2007). A new trial will be granted on the basis of a judge's
remarks or conduct only if the remarks or conduct result in prejudice to a party. Lopez, 375 Ill.
App. 3d at 652.
The record shows that after plaintiffs’ counsel requested a sidebar, the circuit court
reminded counsel that he already had sufficient time to make his arguments with respect to the
evidence of Dr. Bakken’s reprimand. The circuit court then suggested that counsel make a
record for appeal and reminded counsel that the trial would proceed as scheduled. Therefore, the
record shows that the circuit court’s comments were brief and designed to move the trial forward
by ending repetitious arguments. We cannot say that plaintiffs’ case was prejudiced by the
circuit court’s brief comments in this respect.
B. Expert Testimony of Drs. Flaherty and Andreoni
Plaintiffs next contend that the circuit court abused its discretion by allowing Dr.
Flaherty, an expert for defendant, to render opinion testimony that had not been disclosed in
answers to interrogatories, in violation of Supreme Court Rule 213 (210 Ill. 2d R. 213).
Defendant responds that the testimony of Dr. Flaherty was appropriate and in compliance with
Rule 213.
The decision of whether to admit or exclude evidence, including whether to allow an
expert to present certain opinions, rests solely within the discretion of the trial court and will not
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be disturbed absent an abuse of discretion. Spaetzel, 393 Ill. App. 3d at 812. An abuse of
discretion occurs only if “no reasonable person would take the view adopted by the trial court.”
Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).
The purpose of discovery rules, governing the “timely disclosure of expert witnesses,
their opinions, and the bases for those opinions[,] is to avoid surprise and to discourage strategic
gamesmanship.” Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1032 (2003).
Supreme Court Rule 213 disclosures are mandatory and strict compliance is required. Spaetzel,
393 Ill. App. 3d at 812.
Rule 213(f)(3) requires parties to furnish, among other things, the subject matter,
conclusions, and opinions of controlled expert witnesses who will testify at trial. 210 Ill. 2d R.
213(f)(3). Rule 213(g) limits expert opinions at trial to “[t]he information disclosed in answer to
a Rule 213(f) interrogatory, or at deposition.” 210 Ill. 2d R. 213(g). “ ‘A witness may elaborate
on a disclosed opinion as long as the testimony states logical corollaries to the opinion rather
than new reasons for it.’ ” Spaetzel, 393 Ill. App. 3d at 812, quoting Foley v. Fletcher, 361 Ill.
App. 3d 39, 47 (2005).
In the present case, defendant, in her Rule 213 disclosures, stated in pertinent part:
“Dr. Flaherty is expected to testify consistent with his previous discovery
deposition and with the records relating to Charles Cetera. In addition, it is anticipated
that Dr. Flaherty will testify to the following opinions and conclusions based upon a
reasonable degree of medical certainty, as well as any additional opinions disclosed
during the course of his discovery deposition:
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a. Dr. DiFilippo complied with the applicable standard of care in treating Charles
Cetera at all times, including but not limited to during the time period of November 1998
through December 1998.
b. Dr. DiFilippo complied with the standard of care in regard to her treatment
plan based upon her differential diagnosis, at the top of which was suspected cellulitis
and she complied with the standard of care when she ordered the administration of Keflex
to treat suspected cellulitis in a patient such as [Charles], which, prospectively, would
have been most likely caused by strep or staph.
***
d. Dr. Flaherty will testify that the timing of [Charles’] diagnoses of cellulitis and
necrotizing fasciitis was appropriate and within the standard of care. Dr. Flaherty will
testify that the timing and involvement of the consultants, including the infectious disease
consultants were appropriate and within the standard of care.
***
f. Dr. Flaherty will testify that the treatment of necrotizing fasciitis is a two-
pronged approach, and that it cannot be stopped or slowed solely by the prescription of
antibiotics, and that the definitive treatment of necrotizing fasciitis is surgery, and that it
generally requires several surgical procedures before its progression can be halted. Dr.
Flaherty will testify that necrotizing fasciitis has a high mortality rate. Further, he will
testify that necrotizing fasciitis is a rare condition, and that necrotizing fasciitis in the
trunk is even more rare. Dr. Flaherty will testify that necrotizing fasciitis has a
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significantly higher mortality rate when the trunk is affected, as opposed to a limb.”
During Dr. Flaherty’s deposition he stated that, in forming his opinions, he reviewed “[t]he
progress notes, the surgical reports, the path reports, the lab results, the nursing notes, the
medications reports, [and] the x-ray reports.” Dr. Flaherty also defined necrotizing fasciitis as “a
soft-tissue infection that travels along a fascial plane” and described the multiple debridement
surgical procedures that the infection typically requires. Dr. Flaherty further testified regarding
Dr. Klompien’s surgical notes and that when Dr. Klompien indicated that he “removed
necrotizing fat,” it indicated “necrotizing fasciitis.”
Plaintiffs argue that the above Rule 213 disclosures, and Dr. Flaherty’s deposition, were
not sufficient to place them on notice that he would provide testimony that: (1) described the
surgical techniques used during debridement and the necessity of the procedure; (2) described
how necrotizing fasciitis manifests itself, making it difficult to detect where it starts deep in the
tissue and the tissue may appear normal; (3) plaintiffs’ demonstrative exhibit, showing the spread
of infection, was “a little bit misleading” because necrotizing fasciitis, unlike cellulitis, begins
deep in the fascia and changes at the surface occur later; (4) Dr. Klompien’s surgical finding on
November 5, 1998, of abdominal wall fasciitis was “shorthand” for necrotizing fasciitis; and (5)
Charles’s cardiologist’s progress note on November 2, 1998, indicated possible postperi-
cardiotomy syndrome, which is common after open heart surgery and associated with fever and
chest pain.
Here, the record shows that during discovery, defendant disclosed the general opinions
that Dr. Flaherty would testify to. More specifically, in defendant’s answers to interrogatories,
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she stated that Dr. Flaherty would testify that “the timing of [Charles’s] diagnoses of cellulitis
and necrotizing fasciitis was appropriate and within the standard of care,” “the definitive
treatment of necrotizing fasciitis is surgery, and that it generally [] requires several surgical
procedures before its progression can be halted,” and that “necrotizing fasciitis is a rare condition
*** [with] a higher mortality rate when the trunk is infected.” Dr. Flaherty also testified in his
depositions regarding the progression of necrotizing fasciitis, the surgeries required to halt the
infection, and the surgical notes that he reviewed in this case. We find that the particular
testimony at trial that plaintiffs complain of was permissible as an elaboration on, or a logical
corollary to, Dr. Flaherty’s originally revealed opinion. See Spaetzel, 393 Ill. App. 3d at 812-13.
Therefore, the circuit court did not abuse its discretion when it allowed the testimony at issue.
Moreover, even if this court were to find that the circuit court erred in allowing Dr. Flaherty’s
testimony, such error would not have required reversal as plaintiffs were unable to show
prejudice. See Spaetzel, 393 Ill. App. 3d at 814.
Plaintiffs also argue that the circuit court abused its discretion in allowing Dr. Andreoni
to provide trial testimony that had not been disclosed pursuant to Rule 213. Specifically,
plaintiffs argue that they had no notice that Dr. Andreoni would testify that necrotizing fasciitis
was a “toxin-mediated” infection, in which toxins emitted by bacteria kill the flesh and do not
respond to antibiotics. However, Dr. Andreoni was one of Charles’s treating physicians. A
treating physician is considered a Rule 213(f)(2) independent expert witness. See 210 Ill. 2d R.
213(f)(2), Committee Comments, at 1xxxvi (“ ‘Independent expert witnesses’ include persons
such as *** a doctor who gives expert testimony based on the doctor’s treatment of the plaintiff’s
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injuries”).
Unlike a Rule 213(f)(3) controlled expert witness, the basis for a Rule 213(f)(2)
independent expert witness’s opinion need not be disclosed. Nedzvekas v. Fung, 374 Ill. App. 3d
618, 624 (2007). Rather, Rule 213(f)(2) requires only the disclosure of “ ‘the subjects on which
the witness will testify and the opinions the party expects to elicit.’ ” Nedzvekas, 374 Ill. App. 3d
at 624, quoting 210 Ill. 2d R. 213(f)(2). In this case, defendant disclosed that Dr. Andreoni
would testify consistent with his discovery deposition and with Charles’s medical records. In his
discovery deposition, Dr. Andreoni testified regarding his treatment of Charles and opined that
his treatment was within the standard of care. Dr. Andreoni also testified that the timing of the
administering of antibiotics did not cause or contribute to any spread of infection. Dr. Andreoni
specifically testified that necrotizing fasciitis requires surgery rather than antibiotics. We find
that these disclosures were sufficient to comply with the requirements of Rule 213(f)(2).
C. Evidence of Insurance Coverage
Plaintiffs next contend that the circuit court committed reversible error by precluding
plaintiffs from introducing evidence of a common insurance carrier between Dr. Andreoni and
defendant, Dr. DiFilippo.
As previously discussed, Dr. Andreoni, an infectious disease specialist, treated Charles
during the time period in question. Dr. Andreoni was never a party to this case and was listed by
both plaintiffs and defendant on their witness lists. At his evidence deposition, four days before
closing arguments, plaintiffs attempted to question Dr. Andreoni about his insurance carrier and
the manner in which he was appointed counsel. Dr. Andreoni refused to answer upon advise of
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his attorney, Mr. Pinto. Plaintiffs argue that they had the right to solicit this information and that
the circuit court erred in preventing plaintiffs’ from hearing this testimony to show Dr.
Andreoni’s possible bias. Plaintiffs also argue that the circuit court further erred in striking their
petition for rule to show cause against Mr. Pinto, requesting that he be held in contempt for
obstructing justice in this matter or, alternatively, that the circuit court strike Dr. Andreoni’s
deposition testimony.
Defendant initially responds that plaintiffs waived this issue for review. The record
reflects that prior to trial, defendant filed a motion in limine to bar any evidence of or reference to
insurance. The circuit court granted this motion without any objection. A motion in limine is an
interlocutory order and remains subject to reconsideration by the court throughout the trial.
Krengiel v. Lissner Corp., 250 Ill. App. 3d 288, 294 (1993). However, the failure to raise an
objection constitutes a waiver of the issue on appeal. Krengiel, 250 Ill. App. 3d at 294. Here,
plaintiffs did not ask the circuit court to reconsider its ruling on the motion in limine until after
the evidence deposition of Dr. Andreoni had already concluded. The issue is therefore forfeited
for review.
Forfeiture aside, we find no error in the circuit court’s ruling with respect to barring
evidence of common insurance coverage between Dr. Andreoni and defendant. “Reference to the
fact that defendant is protected by insurance or some other indemnity agreement ordinarily is
improper and constitutes reversible error.” Golden v. Kishwaukee Community Health Services
Center, Inc., 269 Ill. App. 3d 37, 44 (1994). Exceptions have developed which allow
introduction of the fact of insurance where it bears upon the credibility of a witness or an
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impeaching statement. Golden, 269 Ill. App. 3d at 44.
In Golden, this court held that the circuit court’s ruling with respect to barring the cross-
examination of the defendant’s medical experts as to their common membership in a medical
malpractice insurance program was within the court’s discretion, “particularly in the absence of
any showing of how many mutual members are associated in the [insurance program] or any
explanation of how or to what extent individual members would profit in the event of a favorable
decision.” Golden, 269 Ill. App. 3d at 44. However, this court held that the circuit court
erroneously denied plaintiff the right to cross-examine one of the defendant’s expert witnesses
who had performed significant economic services for the insurer in reviewing claims against the
insurer’s doctor members to determine if those lawsuits would have had any impact on the
insurance premiums the doctors pay. Golden, 269 Ill. App. 3d at 44. This court held that, with
respect to this particular expert, “the possibility of some significant question of bias exceeding
potential prejudice should have been recognized by the court in this instance.” Golden, 269 Ill.
App. 3d at 44.
Here, Dr. Andreoni was a treating physician rather than an expert retained by defendant.
Moreover, plaintiffs failed to show any evidence that there was any commonality of insurance
between Dr. Andreoni and Dr. DiFilippo or explain how or to what extent Dr. Andreoni would
profit in the event of a favorable decision. Accordingly, the circuit court’s ruling barring
evidence of Dr. Andreoni’s insurance coverage was within the court’s discretion.
In addition, we find no error in the circuit court’s stiking of plaintiffs’ petition for rule to
show cause requesting that Dr. Andreoni’s attornery be held in contempt. Generally, civil
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contempt occurs when a party fails to do something ordered by the trial court, resulting in the
loss of a benefit or advantage to the opposing party. In re Marriage of Charous, 368 Ill. App. 3d
99, 107 (2006). Contempt that occurs outside the presence of the trial court is classified as
indirect contempt. Marriage of Charous, 368 Ill. App. 3d at 107. The existence of an order of
the trial court and proof of willful disobedience of that order is essential to any finding of indirect
civil contempt. Marriage of Charous, 368 Ill. App. 3d at 107. The burden initially falls on the
petitioner to prove by a preponderance of the evidence that the alleged contemnor has violated a
court order. The burden then shifts to the alleged contemnor to show that noncompliance with
the court's order was not willful or contumacious and that he or she had a valid excuse for failure
to follow the court order. Marriage of Charous, 368 Ill. App. 3d at 107-08. Whether a party is
guilty of indirect civil contempt is a question for the trial court, and its decision will not be
disturbed on appeal unless it is against the manifest weight of the evidence or the record reflects
an abuse of discretion. In re Marriage of Logston, 103 Ill. 2d 266, 286-87 (1984).
In this case, plaintiffs failed to cite any order by the circuit court that Mr. Pinto had
violated during Dr. Andreoni’s deposition testimony. Rather, the only apparent violation of any
court order was by plaintiffs’ attorney who attempted to question Dr. Andreoni about insurance
matters, a topic prohibited by the circuit court.
D. Cross-Examination of Dr. MacArthur
Plaintiffs next contend that the circuit court abused its discretion by allowing cross-
examination of Dr. MacArthur’s opinions of the proximate cause of the spread of Charles’s
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infection beyond his abdominal area. Over plaintiffs’ objection, Dr. MacArthur opined that the
failure of the nurses to provide the ordered antibiotics for nine hours after ordered and
administering only one dose resulted in the spread of the infection beyond Charles’s abdomen.
Plaintiffs argue that this testimony, involving additional opinions that other parties no longer
involved in the litigation proximately caused the injuries, was outside the scope of direct
examination, irrelevant, and prejudicial.
Our supreme court’s recent opinion in Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009), is
instructive. In Nolan, the plaintiff sued numerous corporations alleging that the decedent
developed an asbestos-related disease after being negligently exposed to the defendants’
asbestos-containing products during his 38-year career. The other 11 defendants either settled or
were dismissed prior to trial, leaving Weil-McLain as the lone defendant in plaintiff’s suit.
Nolan, 233 Ill. 2d at 419. Weil-McLain filed a motion in limine to present evidence at trial that
the sole proximate cause of the decedent’s death was his exposure to asbestos-containing
products of nonparty entities. The trial court denied the motion, barring Weil-McLain from
introducing evidence of the decedent’s other asbestos exposure. Our supreme court reversed and
remanded for a new trial, holding that Weil-McLain should have been permitted to present
evidence to establish that the conduct of another entity was the sole proximate cause of the
decedent’s injury. Nolan, 233 Ill. 2d at 433-44. The court, following its prior decision in
Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 93 (1995), found that it was reversible
error to exclude the evidence when proximate cause was disputed and the defendant pursued a
sole proximate cause defense. Nolan, 233 Ill. 2d at 440-41. The court also noted that there was
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no special exception for certain types of tort cases, such as medical malpractice or asbestos-injury
cases, and that the general principles of tort law set forth were universally applicable to all tort
cases. Nolan, 233 Ill. 2d at 442-43.
In Leonardi, the plaintiffs’ decedent suffered irreversible brain damage shortly after
giving birth and died several years later. The plaintiffs filed a medical malpractice action against
the hospital where she received treatment and against several physicians. Prior to trial, the
decedent’s attending physician died and his estate settled. Thereafter, the plaintiffs filed a
motion in limine to bar evidence relating to the alleged negligence of any person other than the
named defendants. The circuit court denied the motion and allowed the defendants to question
several witnesses regarding the deceased attending physician’s standard of care. The jury found
in favor of defendants, and the appellate court affirmed. Leonardi, 168 Ill. 2d at 90-92.
Our supreme court found the trial court’s order proper because the defendants in Leonardi
“denied that they were even partly a proximate cause of plaintiffs’ injuries” and pursued the
theory that the decedent’s treating physician was the sole proximate cause of the injuries.
Leonardi, 168 Ill. 2d at 93. The court emphasized that “[i]n any negligence action, the plaintiff
bears the burden of proving not only duty and breach of duty, but also that defendant proximately
caused plaintiff’s injury.” Leonardi, 168 Ill. 2d at 93. The court explained that, under this
analytical framework, a defendant “has the right not only to rebut evidence tending to show that
defendant’s acts are negligent and the proximate cause of claimed injuries,” but also “has the
right to endeavor to establish by competent evidence that the conduct of a third person, or some
other causative factor, is the sole proximate cause of plaintiff’s injuries.” Leonardi, 168 Ill. 2d at
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101. Accordingly, the court rejected the plaintiff’s arguement that evidence of other possible
causes for the claimed injury would confuse a jury or distract the jury’s attention from the issue
of whether a named defendant caused, wholly or partly, a plaintiff’s injury. Leonardi, 168 Ill. 2d
at 94. Rather, the court held that the “sole proximate cause defense merely focuses the attention
of a properly instructed jury *** on the plaintiff’s duty to prove that the defendant’s conduct was
a proximate cause of plaintiff’s injury.” Leonardi, 168 Ill. 2d at 94.
Here, pursuant to our supreme court’s decisions in Nolan and Leonardi, we find that the
circuit court properly permitted defendant to present evidence that the spread of Charles’s
infection was the result of another individual’s conduct. Defendant denied that Charles was
injured as a result of treatment he received under her care and, therefore, defendant was properly
allowed to introduce testimony in support of her position that Charles’s injury was the result of
another cause. Specifically, Dr. MacArthur testified on direct examination that Charles lost a
chance at a better outcome due to defendant’s failure to prescribe the correct antibiotics on
November 4 and the morning of November 5, 1998, which proximately caused Charles’s
infection to spread outside of his abdomen. Since defendant denied that she was even partly a
cause of any injury, defendant was entitled to cross-examine Dr. MacArthur regarding his
previously disclosed opinion that the failure by the nursing staff to administer the proper
antibiotics to Charles after 10 a.m., on November 5, 1998, proximately caused the spread of the
infection beyond Charles’s abdomen.
Plaintiffs also argue that the circuit court committed reversible error by tendering to the
jury an instruction on sole proximate cause.
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A litigant has the right to have the jury clearly and fairly instructed upon each theory that
was supported by the evidence. Leonardi, 168 Ill. 2d at 100. The question of what issues have
been raised by the evidence is within the discretion of the trial court. The evidence may be
slight; a reviewing court may not reweigh it or determine if it should lead to a particular
conclusion. Leonardi, 168 Ill. 2d at 100. Our supreme court has explained, “The test in
determining the propriety of tendered instructions is whether the jury was fairly, fully, and
comprehensively informed as to the relevant principles, considering the instructions in their
entirety.” Leonardi, 168 Ill. 2d at 100.
Here, the circuit court tendered to the jury the long version of Illinois Pattern Jury
Instructions, Civil, No. 12.04 (3 ed. 1989) (hereinafter IPI Civil 3d No. 12.04):
“More than one person may be to blame for causing an injury. If you decide that a
[the] defendant[s] was [were] negligent and that his [their] negligence was a proximate
cause of injury to the plaintiff, it is not a defense that some third person who is not a party
to the suit may also have been to blame.
[However, if you decide that the sole proximate cause of injury to the plaintiff was
the conduct of some person other than the defendant, then your verdict should be for the
defendant.]”
Plaintiffs contend that the circuit court erred in tendering this instruction where there was
“no evidence at trial *** to prove that a third party was solely responsible” for Charles’s injuries.
Rather, plaintiffs’ assert, that defendant’s experts testified to the contrary, that no earlier
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medication would have changed the outcome of Charles’s infection.
The record reflects that Dr. MacArthur testified that Charles failed to receive the
antibiotic Unasyn on November 5, 1998, in a timely manner and that this failure caused the
infection to spread beyond Charles’s abdomen. This evidence could be judged the sole
proximate cause of Charles’s injury and, therefore, justify giving the instruction. Therefore, we
cannot say that the court abused its discretion. Further, the fact that Dr. MacArthur’s testimony
may have been inconsistent with that of defendant’s experts, who testified that no medication
would have stopped the infection, is irrelevant. A party is entitled to present evidence and
receive jury instructions on inconsistent, alternative legal theories. See Yoder v. Ferguson, 381
Ill. App. 3d 353, 383-84 (2008).
E. Non-IPI Instruction
Plaintiffs next contend that the circuit court erred when it rejected their nonpattern jury
instruction based on the lost chance doctrine under Holton v. Memorial Hospital, 176 Ill. 2d 95(1997). Plaintiffs allege that refusal of their loss of chance instruction prevented plaintiffs from
amplifying and clarifying their theory of causation where the proximate cause instruction, IPI
Civil 3d No. 15.01, did not sufficiently instruct the jury. This court has consistently affirmed
refusals of similar proffered nonstandard instructions because IPI Civil 3d No. 15.01 properly
states the law in lost chance medical malpractice cases. See Sinclair v. Berlin, 325 Ill. App. 3d
458 (2001); Lambie v. Schneider, 305 Ill. App. 3d 421 (1999); Henry v. McKechnie, 298 Ill.
App. 3d 268 (1998). In Sinclair, this court explained:
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“[T]he trial court is required by Supreme Court Rule 239(a) (134 Ill. 2d R. 239(a)) to use
the IPI instruction whenever it is applicable. [Citation.] Moreover, lost chance is not a
separate theory of recovery but rather a concept that enters into proximate cause analysis
in medical malpractice cases when a plaintiff alleges a defendant’s negligent delay in
diagnosis or treatment has lessened the effectiveness of treatment.” Sinclair, 325 Ill. App.
3d at 466.
We find no reason to depart from our previous determinations and find no error in the circuit
court’s refusal of plaintiffs’ nonstandard jury instruction.
F. Cumulative Evidence
Plaintiffs next contend that the circuit court erred in the handling of cumulative evidence.
Specifically, plaintiffs argue that the circuit court limited plaintiffs' opportunity to prevent
testimony from Dr. MacArthur that was identical to plaintiffs’ other expert Dr. Bakken, but the
court arbitrarily allowed defendant to present testimony from Dr. Flaherty on the standard of care
that was identical to that of Drs. Sabbia, Gadula, and Andreoni.
The trial court has discretion to limit the number of witnesses and may bar an expert from
testifying if the expert's testimony would be cumulative. Kotvan v. Kirk, 321 Ill. App. 3d 733,
749 (2001). The trial court abuses its discretion when it improperly excludes evidence so as to
deprive a party of a fair trial. Kotvan, 321 Ill. App. 3d at 749.
The record shows that Dr. Sabbia testified regarding the standard of care for a general
internist. In contrast, Dr. Flaherty testified as an infectious disease specialist and offered
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opinions on causation. Therefore, we cannot say that the circuit court abused its discretion in
allowing the testimony from both of these experts. With respect to the testimony from Drs.
Gadula and Andreoni, these doctors were Charles’s treating physicians. This court has noted that
treating physicians may render opinions at trial because “ 223 Ill. App. 3d 740, 742 (1992), quoting Tzystuck v. Chicago
Transit Authority, 124 Ill. 2d 226, 234 (1988). Thus, we find no abuse of discretion with respect
to the admission of cumulative evidence. We further note that plaintiffs have failed to identify
any exclusion of evidence that deprived them of a fair trial.
Plaintiffs also assert that the circuit court should have permitted them to re-cross-examine
Dr. Andreoni about his statements pertaining to his obligation to follow a patient’s care. The
scope and extent of cross-examination and re-cross-examination are within the discretion of the
trial court. Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998 (2007).
Plaintiffs object to the circuit court striking re-cross-examination testimony by Dr.
Andreoni, stating that after examining Charles on November 5, 1998, he did not see Charles until
November 6, 1998, following Charles’s transfer to the intensive care unit and first debriding
surgery. Plaintiffs argue that the circuit court should have allowed this re-cross-examination to
challenge Dr. Andreoni’s new testimony during redirect examination that suggested that he
closely followed Charles’s treatment. During redirect examination, Dr. Andreoni testified:
“Well normally, when I’m consulted on a patient, like I said as a routine, I find out what’s
going on besides reviewing all the records, and the laboratories and then going over the
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history, if the patient is able to talk. And the exam is information from the nurses. I
generally talk to the primary doctor ***.
Again, I don’t have any specific recollections about that. But on patients that
there’s a concern where people raise concerns, I’m generally involved because I’m not
someone who just comes and writes something and runs away. That’s not the way you
take care of patients.”
A review of the record shows that, contrary to plaintiffs’ assertion, Dr. Andreoni’s testimony
during redirect examination did not raise new material. Rather, Dr. Andreoni testified during
direct examination that when he examined Charles on the morning of November 5, 1998, he
reviewed the notes of the “various doctors and nurses that had seen [Charles] up until the time of
[his] consult.” Dr. Andreoni also testified during direct examination that he ordered that Keflex
be discontinued, Unasyn be given as soon as possible, and that the erythema be marked because
he wanted to “keep a close eye, keep a close monitor on what [was] going on.” Dr. Andreoni
further testified that after ordering the change in antibiotics, the next time he saw Charles was
“after the surgery which was done early morning on the 6th [of November].” Therefore, we find
no abuse of discretion where the circuit court limited re-cross-examination in this case to new
material raised on redirect examination. See Johns-Manville Products Corp. v. Industrial
Comm'n, 78 Ill. 2d 171, 181 (1980).
G. Claim of Cumulative Error
Plaintiffs lastly contend that the cumulative effect of the circuit court’s rulings denied
them a fair trial. Plaintiffs argue that the medical evidence was closely balanced such that any
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one of the court’s errors could have tipped the scales in favor of defendant. As previously
discussed, the evidentiary rulings made by the circuit court were either proper or well within the
court’s discretion. Where a movant fails to identify any evidentiary rulings which were either an
abuse of discretion or error of law, logic necessarily dictates that a new trial is not required. See
Favia v. Ford Motor Co., 381 Ill. App. 3d 809, 822 (2008). Reviewing courts are not concerned
that parties receive an error-free trial; rather, our concern is that plaintiffs receive a fair trial, one
free of substantial prejudice. Netto v. Goldenberg, 266 Ill. App. 3d 174, 184 (1994). A new trial
is necessary when the cumulative effect of trial errors so deprives a party of a fair trial that the
verdict might have been affected. Mueller v. Phar-Mor, Inc., 336 Ill. App. 3d 659, 670 (2000).
Upon reviewing the record in this case, we cannot say that any cumulative effect exists in this
case. Plaintiffs received a fair trial where they were free to present their case within the proper
bounds set by the circuit court’s rulings. Plaintiffs have failed to show that any error or multiple
errors prejudiced their case such that a new trial is required.
III. CONCLUSION
For the above reasons, we affirm the circuit court’s determination denying plaintiffs’
motion for a new trial.
Affirmed.
MURPHY, P.J., and COLEMAN, J., concur.
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