Petryshyn v. Slotky

Filed 7/29/08 NO. 4-07-0754
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
KIMBERLY A. PETRYSHYN, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
BARRY SLOTKY, M.D., Individually; and ) No. 04L73
BARRY SLOTKY, M.D., S.C., )
Defendants-Appellants, )
and )
OSF HEALTH CARE SYSTEM, d/b/a ) Honorable
ST. JOSEPH MEDICAL CENTER, ) Charles G. Reynard,
Defendant. ) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
This case presents the question of whether a physician
may be qualified to testify as an expert regarding the standard
of care of a nurse who was a surgical team member. We hold that
the physician in this case was so qualified.
Plaintiff, Kimberly A. Petryshyn, sued defendants,
Barry Slotky, M.D., S.C., and OSF Health Care System, d/b/a St.
Joseph Medical Center, alleging medical malpractice, based on
complications she suffered after undergoing a March 1999
cesarean-section surgery (hereinafter the C-section). St. Joseph
Medical Center and Petryshyn later settled. Following a March
2007 trial, with Slotky as the sole defendant, a jury returned a
verdict in his favor.
In April 2007, Petryshyn filed a motion for judgment
notwithstanding the verdict or, alternatively, for a new trial,
arguing that the trial court erred by admitting into evidence her
expert physician's testimony--which she elicited in an evidence
deposition--regarding the applicable nursing standard of care.
Following an August 2007 hearing, the court granted her motion
for a new trial.
Slotky appeals the trial court's decision granting
Petryshyn's motion for a new trial. We reverse.
I. BACKGROUND
In March 1999, Petryshyn experienced labor pains and
was admitted to St. Joseph Medical Center as Slotky's patient.
Slotky placed an intrauterine pressure catheter (hereinafter
IUPC) into Petryshyn's uterus to monitor the strength and fre-
quency of her labor contractions. Because Petryshyn's labor was
not progressing normally, Slotky performed a nonemergency C-
section and successfully delivered Petryshyn's child.
In July 1999, Petryshyn first experienced an uncomfort-
able "poking" or "stabbing" pain in her pelvic region. From
April through July 2000, Petryshyn sought treatment from another
physician on six different occasions, complaining of (1) extreme
lower abdominal pain, (2) heavy bleeding, and (3) urinary and
bowel pain. In August 2000, she again sought medical treatment
for stabbing abdominal pains that had steadily increased in
severity and frequency. A pelvic examination revealed that a
"pointy" foreign object was protruding from her left vaginal
wall. An ultrasound and X-ray later revealed that the foreign
object, which contained an electronic connecting wire, was inside
Petryshyn's pelvis. The foreign object was later removed and
identified as an 11.3-centimeter portion of an IUPC.
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Petryshyn sued Slotky and St. Joseph Medical Center,
alleging medical malpractice. As earlier noted, prior to trial,
Petryshyn settled with St. Joseph Medical Center, which is not a
party to this appeal.
In February 2007, David M. Priver, a board-certified
physician in obstetrics and gynecology with 33 years of experi-
ence, testified as Petryshyn’s expert in an evidence deposition.
At a March 2007 hearing (immediately prior to the jury trial)
which occurred after Petryshyn settled with St. Joseph Medical
Center, Petryshyn moved to disavow the portion of Priver's
evidence deposition testimony that pertained to the nursing
standard of care. Because Slotky had previously disclosed to
Petryshyn that he adopted Priver's opinion testimony pursuant to
Supreme Court Rule 213 (210 Ill. 2d R. 213), he sought to intro-
duce the testimony Petryshyn moved to disavow pursuant to Supreme
Court Rule 212(c) (210 Ill. 2d R. 212(c)). See Adams v. Sarah
Bush Lincoln Health Center, 369 Ill. App. 3d 988, 1001, 874
N.E.2d 100, 111 (2007), quoting Prince v. Hutchinson, 49 Ill.
App. 3d 990, 995, 365 N.E.2d 549, 552 (1977) ("'An evidence
deposition is not the "property" of the party who takes it, and
any portion of an evidence deposition may be offered by either
side'"). Petryshyn objected, arguing that Priver's testimony
concerning the nursing standard of care--testimony that she
elicited on direct examination in the evidence deposition--was
inadmissible under the decision of the Supreme Court of Illinois
in Sullivan v. Edward Hospital, 209 Ill. 2d 100, 119, 806 N.E.2d
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645, 657 (2004). After considering the parties' arguments, the
court overruled Petryshyn's objection, finding that Priver’s
testimony regarding the nursing standard of care was "integrally
related" to the functions of the surgical "team." The record
shows that the "surgical team" involved in Petryshyn's C-section
consisted of two nurses and Slotky.
On direct examination, Priver testified that a pregnant
patient’s overall labor status is monitored through an IUPC.
Priver explained that an IUPC has an electronic pressure sensor
that is inserted into the patient's uterine cavity through the
birth canal and cervix to monitor (1) uterine-contraction dura-
tion and (2) the fetus' heartbeat. Additionally, the IUPC
contains an internal wiring device that connects the pressure
sensor to an external recording device. Priver also stated that
although a physician inserts the IUPC in the uterus, it is
normally removed by a nurse prior to childbirth.
Priver further explained that a C-section is a surgical
procedure involving a small initial incision in the patient’s
lower abdomen. The initial incision is usually extended by using
"bandage scissors," so called because they are blunt instruments
that do not harm a patient’s internal organs. Priver stated that
following the C-section, the operating room staff typically
performs a "sponge and instrument count" to confirm that no
foreign objects remain in a patient’s body. Priver opined that
if a foreign object were to remain in a patient’s body, it could
cause infection, pain, and hemorrhaging.
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Priver reviewed Petryshyn’s medical records and deposi-
tions and opined that within a reasonable degree of medical
certainty, (1) the IUPC (a) had not been removed when Petryshyn’s
C-section began and (b) was cut by bandage scissors as Slotky
extended the initial incision, (2) approximately 10 centimeters
of the IUPC remained inside Petryshyn’s uterus after the C-
section, (3) the retained portion of the IUPC would have been
discovered if Slotky had manually examined Petryshyn’s uterus,
and (4) Slotky violated the physician’s standard of care by (a)
allowing the IUPC to remain in Petryshyn's uterus and (b) failing
to check the uterus before closing the C-section incision.
Priver based his last opinion on the fact that the labor-and-
delivery records contained no showing that Slotky had conducted a
manual examination of Petryshyn's uterus.
Priver also opined that within a reasonable degree of
medical certainty, the nurses violated their standard of care by
not inspecting the IUPC to ensure that it was intact before
discarding it. Priver further testified that if the nurses had
seen that the IUPC was not intact, it would have been within
their standard of care to communicate their inspection results to
Slotky.
On cross-examination, Priver acknowledged that (1)
although Slotky had placed the IUPC in Petryshyn’s uterus, the
medical records did not identify who removed the portion of the
IUPC that did not remain in Petryshyn’s uterus and (2) a manual
examination of the uterus is not always noted in the labor-and-
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delivery records. (Slotky testified that he did perform a manual
examination of Petryshyn's uterus, even though he did not so note
in the labor-and-delivery records.)
In Slotky's closing argument, he reminded the jury that
Petryshyn's expert, Priver, testified that the operating room
nurses failed to perform their required duties to (1) remove the
IUPC prior to the C-section, (2) inspect all of the operating
room equipment following the C-section, and (3) report to Slotky
if any of the equipment was not intact. Essentially, Slotky
argued that because Petryshyn's own expert testified that the
nurses failed to perform their duty, it was not appropriate for
the jury to hold him liable for Petryshyn's injuries, given that
the nurses violated their standard of care. The jury later
returned a verdict in Slotky's favor.
In April 2007, Petryshyn filed a motion for judgment
notwithstanding the verdict or, alternatively, for a new trial,
arguing that the trial court erred by allowing Priver's testimony
regarding the applicable nursing standard of care. Following an
August 2007 hearing on Petryshyn’s motion, the court granted the
motion for a new trial, concluding that, based upon the authority
of Garley v. Columbia LaGrange Memorial Hospital, 351 Ill. App.
3d 398, 813 N.E.2d 1030 (2004), the court had erred by permitting
the jury to hear the portion of Priver's testimony regarding the
nursing standard of care.
This appeal followed.
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II. ANALYSIS
A. The Standard of Review
Slotky argues that the appropriate standard of review
is de novo because the trial court erred as a matter of law by
relying on Garley, which does not accurately reflect the current
state of the law. Petryshyn responds that this court's review is
under the abuse-of-discretion standard. We agree with Petryshyn.
A trial court's determination to grant or deny a new
trial will not be disturbed absent an abuse of discretion. Smith
v. Silver Cross Hospital, 339 Ill. App. 3d 67, 74, 790 N.E.2d 77,
84 (2003); see also Lisowski v. MacNeal Memorial Hospital Ass'n,
381 Ill. App. 3d 275, 283, 885 N.E.2d 1120, 1130 (2008) (where
the First District, using the abuse-of-discretion standard,
reversed the trial court's order for a new trial in a medical-
malpractice case). "'"Abuse of discretion" means clearly against
logic; the question is not whether the appellate court agrees
with the [trial] court, but whether the [trial] court acted
arbitrarily, without employing conscientious judgment,'" or
whether, considering all the circumstances, the court acted
unreasonably and ignored recognized principles of law, which
resulted in substantial prejudice. Long v. Mathew, 336 Ill. App.
3d 595, 600, 783 N.E.2d 1076, 1080 (2003), quoting State Farm
Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083, 732
N.E.2d 1094, 1096 (2000).
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B. The Evolution of an Expert Physician’s Testimony Regarding
a Health-Care Professional's Standard of Care
1. The Licensing Requirement
In Dolan v. Galluzzo, 77 Ill. 2d 279, 281, 396 N.E.2d
13, 15 (1979), the question before the Supreme Court of Illinois
was whether a physician, surgeon, or other medical expert not
licensed as a podiatrist could testify to the standard of care a
podiatrist owes to his patient. The supreme court held that as a
matter of first impression, (1) "to testify as an expert on the
standard of care in a given school of medicine, a witness must be
licensed therein" and (2) after the licensing requirement has
been established, the trial court has the discretion to "deter-
mine if the witness is qualified to testify as an expert regard-
ing the standard of care." Dolan, 77 Ill. 2d at 285, 396 N.E.2d
at 16. In so holding, the supreme court stated that the ratio-
nale behind the licensing requirement was that different schools
of medicine have varying tenets and practices, and allowing a
practitioner of one school of medicine to testify to the care and
skill of another practitioner from a different school of medicine
would result in inequities. Dolan, 77 Ill. 2d at 283, 396 N.E.2d
at 16. Thus, "[t]he practitioner of a particular school of
medicine is entitled to have his conduct tested by the standards
of his school." Dolan, 77 Ill. 2d at 283, 396 N.E.2d at 16.
2. The Exception to the Licensing Requirement
In Wingo v. Rockford Memorial Hospital, 292 Ill. App.
3d 896, 903-04, 686 N.E.2d 722, 727 (1997), three expert physi-
cians testified that a nurse deviated from her standard of care
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by failing to properly communicate the condition of a pregnant
patient to the treating physician. Because the nurse failed to
communicate her observations to the physician, the testifying
experts opined that the nurse's deviation from her standard of
care resulted in the patient's baby being born with brain damage.
Wingo, 292 Ill. App. 3d at 903-04, 686 N.E.2d at 727.
The Second District in Wingo concluded that Dolan's
licensing requirement did not apply to the facts of the case
based on the following rationale:
"[Dolan] indicate[s] that the reason for the
[licensing requirement] is to prevent a
higher standard of care being imposed upon
the defendant and to ensure that the testify-
ing expert has expertise in dealing with the
patient's medical problem and treatment and
that the allegations of negligence are within
the expert's knowledge and observation.
Those concerns have not been sacrificed here.
In [this] case, the allegations of negligence
against [the] nurse did not concern a nursing
procedure but, rather, related to what a
nurse is required to communicate to a physi-
cian about what transpired since the physi-
cian last saw the patient. As such[,] the
allegations of negligence do not concern an
area of medicine *** [where] there would be a
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different standard [of care] between [a]
physician and another school of medicine.
Furthermore, it was established that the
allegations of negligence were well within
the testifying doctors' knowledge and experi-
ence. We believe that a physician should be
entitled to testify about what he or she is
entitled to rely upon in the area of communi-
cation from a nurse in the context of an
obstetrical team rendering care to a patient
in a hospital." (Emphasis added.) Wingo,
292 Ill. App. 3d at 906, 686 N.E.2d at 729.
3. The Supreme Court's Decision in Sullivan
In Sullivan, 209 Ill. 2d at 119, 806 N.E.2d at 657-58,
the Supreme Court of Illinois barred a physician's expert testi-
mony, holding that physicians cannot testify regarding (1) the
standard of care for nursing procedures or (2) a nurse’s devia-
tion from her standard of care. In doing so, the supreme court
reaffirmed Dolan's licensing requirement. Sullivan, 209 Ill. 2d
at 113, 806 N.E.2d at 654. The supreme court in Sullivan also
discussed some cases since Dolan, specifically focusing on
Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986).
In Purtill, an expert physician's affidavit stated that
the treating physician deviated from his standard of care by
failing to diagnose and treat the plaintiff's medical condition.
Purtill, 111 Ill. 2d at 238, 489 N.E.2d at 870. The trial court
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granted the physician's motion (1) to strike the expert's affida-
vit and (2) for summary judgment, finding that the expert had
failed to demonstrate he was familiar with the standard of care
in the treating physician's geographical location or similar
location. Purtill, 111 Ill. 2d at 238-39, 489 N.E.2d at 870-71.
Because the expert demonstrated that he was familiar with the
minimum standards and that the standards were uniform throughout
the country, the supreme court reversed the trial court's judg-
ment and held that the expert physician was qualified to testify
to the physician's standard of care. Purtill, 111 Ill. 2d at
250-51, 489 N.E.2d at 876-77. In so holding, the supreme court
in Purtill clarified the test of an expert physician's qualifica-
tions to testify about a health-care professional's standard of
care.
Specifically, the supreme court in Sullivan stated:
"'In Purtill[, 111 Ill. 2d at 243, 489
N.E.2d at 872-73], this court articulated the
requirements necessary to demonstrate an
expert physician's qualifications and compe-
tency to testify. First, the physician must
be a licensed member of the school of medi-
cine about which he proposes to testify.
[Citation.] Second, "the expert witness must
show that he is familiar with the methods,
procedures, and treatments ordinarily ob-
served by other physicians, in either the
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defendant physician's community or a similar
community." [Citation.] Once the founda-
tional requirements have been met, the trial
court has the discretion to determine whether
a physician is qualified and competent to
state his opinion as an expert regarding the
standard of care. [Citation.]'" Sullivan,
209 Ill. 2d at 112-13, 806 N.E.2d at 654,
quoting Jones v. O'Young, 154 Ill. 2d 39, 43,
607 N.E.2d 224, 225 (1992).
Thus, if the expert physician fails to satisfy either founda-
tional requirement, he is not qualified to testify as an expert.
Sullivan, 209 Ill. 2d at 113, 806 N.E.2d at 654.
As explained in Dolan, the rationale for the supreme
court’s prohibition regarding a physician’s testimony pertaining
to another health-care professional’s standard of care stems from
the court's concern that fairness requires the practitioner of a
particular school of medicine to have his conduct tested by the
standards of his school. Dolan, 77 Ill. 2d at 283, 396 N.E.2d at
16. Thus, when a physician does not have the requisite training
or experience in the school of medicine about which she proposes
to testify as an expert, the trier of fact should not hear that
testimony. In other words, even though they are all physicians,
orthopedic surgeons are not qualified to testify regarding the
standard of care (and any alleged breach thereof) applicable to
pediatricians; nor are radiologists qualified to testify regard-
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ing those subjects applicable to dermatologists; and so on. See
Garley, 351 Ill. App. 3d at 409, 813 N.E.2d at 1040 (physicians
were not qualified to testify to (1) the nurses' standard of care
or (2) whether the nursing staff deviated from their standard of
care); Alm v. Loyola University Medical Center, 373 Ill. App. 3d
1, 6, 866 N.E.2d 1243, 1248 (2007) (pathologist was not familiar
with the methods, procedures, and treatments ordinarily observed
by specialists in plastic surgery and anesthesiology to qualify
as an expert).
However, the supreme court in Sullivan noted Wingo's
limited exception to this licensing requirement. Specifically,
the supreme court observed that the case before it was factually
more similar to Dolan and its progeny than to Wingo. Sullivan,
209 Ill. 2d at 118-19, 806 N.E.2d at 657. That may explain why
the supreme court in Sullivan expressly refused to discuss the
merits of Wingo or to overrule it. Sullivan, 209 Ill. 2d at 119,
806 N.E.2d at 657. Indeed, in Petre v. Cardiovascular Consul-
tants, S.C., 373 Ill. App. 3d 929, 942, 871 N.E.2d 780, 792
(2007), the First District reaffirmed that Wingo remained an
appropriate precedent to follow. Specifically, the Petre court
stated that "Wingo relieves a party of satisfying the licensing
prong of the Purtill foundational test when the allegations of
negligence concern communications between members of different
schools of medicine acting as part of the same team." Petre, 373
Ill. App. 3d at 941, 871 N.E.2d at 792. However, the party
offering the expert testimony still must satisfy Purtill's second
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prong by establishing that the negligence allegations were within
the expert's knowledge and expertise. Petre, 373 Ill. App. 3d at
941, 871 N.E.2d at 792.
C. The "Providing-Medical-Care Continuum"
As earlier stated, this case presents the question of
whether a physician may be qualified to testify as an expert
regarding the standard of care expected of a nurse who was a
surgical team member. The pivotal analytical issue in answering
this question depends on the nature of the interaction between a
physician and a nurse as they provide medical care for the same
patient. At one end of the "providing-medical-care continuum"
are cases like Sullivan and Garley, which focus separately on the
specialized nature of the medical care being provided by the
physician or nurse, rather than on the interaction between them,
because that interaction is not intrinsically intertwined with
the care that they are individually providing.
In the middle of the "providing-medical-care continuum"
are cases like Wingo, which recognize that the distinct and
specialized procedures that a physician and nurse employ to
effectively care for the same patient do not occur absent inter-
active communication. Thus, Wingo focused on the intrinsically
intertwined interaction between a physician and nurse, albeit on
the limited and narrow scope of communication, rather than
focusing separately on the specialized nature of the medical care
being provided by the physician or nurse.
Cases in the middle of the "providing-medical-care
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continuum" typically involve allegations of negligence--such as a
nurse's failure to communicate to a physician an issue that fell
within her standard of care--which, in turn, had a negative
impact upon the physician's ability to effectively treat the same
patient. Because such allegations of negligence do not involve
testimony concerning another health-care professional’s standard
of care or the breach of that care, Dolan's licensing requirement
does not apply. Therefore, a physician may testify as in Wingo,
provided that such testimony is within his knowledge and exper-
tise.
Progressing still further along the "providing-medical-
care continuum" is a case like the present one, which involves
the intrinsically intertwined interaction between a physician and
nurse when they are members of the same surgical team. Under
this scenario, which is essentially on the opposite end of the
"providing-medical-care continuum" from the circumstances in
Dolan, the physician and nurse, each responsible for their
distinct and specialized responsibilities, interact as a team to
substantially contemporaneously care for the same patient. This
case is also distinguished from Wingo and the middle of the
"providing-medical-care continuum" because Wingo involved only
communication between the physician and a nurse rather than the
level of interaction required of a physician and nurse on the
same surgical team.
D. Priver's Expert Testimony Regarding the Standard
of Care Expected of Surgical Team Members
In medical-malpractice cases, the basic question is
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who, if anyone, has deviated from his or her standard of care.
This case is no different. Slotky and the nurses carried out
their respective specialized duties as part of a surgical team to
(1) prepare Petryshyn for the C-section, (2) perform the C-
section, and (3) conduct the postoperative care. During that
time, something happened to Petryshyn that should not have
happened--that is, a portion of the IUPC remained in her body
after the C-section. Given that error, the parties were entitled
to present evidence and argument concerning which, if any, member
of the surgical team departed from his or her standard of care.
In this case, Priver was a board-certified physician in
obstetrics and gynecology with 33 years of experience who per-
formed an average of 30 to 40 C-sections per year. Thus, he had
the requisite expertise and knowledge regarding the responsibili-
ties of the individual surgical team members involved in such
procedures. In his evidence deposition, Priver testified, in
part, that (1) in preparing a patient for the C-section, the IUPC
is normally removed by nurses, (2) the IUPC had not been removed
when Petryshyn’s C-section began, (3) a nurses' postoperative
responsibilities include (a) performing a "sponge and instrument
count" and (b) inspecting the instruments used during the C-
section to ensure they remained intact, and (4) if the nurses had
seen that the IUPC was not intact, it would have been within
their standard of care to communicate their inspection results to
Slotky. Essentially, Priver's testimony pertains to a physi-
cian's and nurse's distinct and specialized responsibilities as
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surgical team members and the intrinsically intertwined interac-
tion between those responsibilities as the physician and nurse
care for the same patient.
Under the circumstances in this case, Priver was
qualified to testify as an expert that (1) a surgical team
physician conducting a C-section relies on communication from
nurse team members regarding the patient's care and (2) the
failure to communicate information about the patient was a breach
of the nurse's standard of care.
In its initial pretrial ruling, the trial court charac-
terized Priver's testimony as follows:
"I think we are dealing with integrally[]
related obligations within the standard of
care according to [Priver] that says it's the
nurse[']s obligation to do that and I know
this because I have been on this team situa-
tion for many years, done it many times and
it's the nurse's obligation to do the count
or to inspect the instruments and then commu-
nicate accordingly."
Later, at the hearing on Petryshyn's motion for a new trial, the
court explained its rationale for permitting the jury to hear
Priver's testimony as follows:
"It was apparent to me at that time that the
communication protocol was a significant one
that [Slotky] ought to be able to produce
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evidence about, because professionals rely
upon other members of the team communicating
to them and tied in with the defense theory
of this case that it was someone else's
fault, someone else's duty, someone else's
breach of duty[,] and someone else's conduct
that proximately caused the injuries to
[Petryshyn]."
However, the court nonetheless ruled that it should not have
admitted Priver's testimony regarding the nurses' standard of
care and granted Petryshyn's motion for a new trial. We conclude
that the trial court's characterization of Priver's testimony and
the rationale for its initial ruling was correct and consistent
with this court's analysis.
The rationale underlying Sullivan was not implicated in
this case. Accordingly, we conclude that the trial court abused
its discretion by granting Petryshyn's motion for a new trial.
III. CONCLUSION
For the reasons stated, we reverse the trial court’s
order granting a new trial.
Reversed.
KNECHT, J., concurs.
COOK, J., dissents.
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JUSTICE COOK, dissenting:
I respectfully dissent and would affirm the decision of
the trial court.
On March 4, 1999, Plaintiff Petryshyn went into labor
and was admitted to St. Joseph Medical Center under the care of
defendant Dr. Slotky. As a part of Petryshyn's care during
labor, Dr. Slotky inserted an IUPC into her uterus. Thereafter
the decision was made to perform a nonemergency C-section, during
which the IUPC was cut, leaving an approximately 11.3-centimeter
portion of the IUPC in Petryshyn's uterus. Petryshyn continued
to experience pain until the IUPC was discovered and removed by
Dr. Vincente Colon in August 2000. In 2004, Petryshyn filed this
lawsuit against Dr. Slotky and St. Joseph Medical Center, which
employed the nurses. Shortly before the trial began, in March
2007, St. Joseph Medical Center settled and was dismissed from
the lawsuit.
The evidence deposition of Petryshyn's expert, Dr.
Priver, was taken in February 2007, before St. Joseph settled
out. Dr. Priver opined that (1) the IUPC was cut by Dr. Slotky
as he performed the C-section, (2) the remaining portion would
have been discovered if Slotky had manually examined Petryshn's
uterus, and (3) Slotky violated the physician's standard of care
by failing to properly check the uterus before closing the C-
section incision. Dr. Priver also opined that the nurses vio-
lated their standard of care by not inspecting the IUPC to ensure
that it was intact before discarding it. At trial, as the nurses
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were no longer part of the case, Petryshyn chose not to introduce
the portion of Priver's deposition testimony that the nurses
violated their standard of care. However, upon Slotky's request,
the trial court required the testimony to be admitted.
In closing argument, defense counsel misrepresented
Priver's testimony to say the nurses violated their standard of
care by not removing the catheter before the C-section and by not
telling Dr. Slotky about it. After seeing how Priver's testimony
was used during trial, the trial court decided the testimony
should not have been admitted and ordered a new trial. The trial
court believed the jury would have ruled differently if the
evidence had not been admitted: "I can relate back to my recol-
lection at the time of closing argument as to how strong an
argument was made by [defense counsel] when he pointedly took the
nurses to task, took the demeanor of one of the nursing witnesses
to be almost tantamount to a confession." "I have to believe
that based upon those recollections, that that argument had its
intended effect." Defense counsel had argued:
"Is it appropriate? Is it appropriate for
the jury to hold Dr. Slotky responsible
because [nurse] Marla Newman didn't do her
job? All I could think of when I was lis-
tening to Dr. Priver's testimony was how
much he talked about the nurses. How the
nurses failed. I wrote these things down.
Almost every time, the nurses take out
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the IUPC. This is plaintiff's expert,
ladies and gentlemen. This isn't the defense
expert."
How was it even relevant whether the nurses were
negligent? The question was whether Dr. Slotky was negligent.
More than one person may be to blame for causing an injury. If
Dr. Slotky was negligent and his negligence was a proximate cause
of the injury to plaintiff, it is not a defense that the nurses
may also have been to blame. Illinois Pattern Jury Instructions,
Civil, No. 12.04 (3d ed. 1989) (hereinafter IPI Civil 3d No.
12.04). A defendant is not allowed to divert the jury's atten-
tion from his negligence by dirtying up an absent defendant.
Slotky asked the trial court to give the second para-
graph of IPI Civil 3d No. 12.04, that the jury should rule for
the defendant if it decides "that the sole proximate cause of
injury to the plaintiff was the conduct of some person other than
the defendant." (Emphasis added.) That instruction, however,
should be used only where there is evidence to show that the sole
proximate cause of the occurrence was the conduct of a third
person. IPI Civil 3d No. 12.04, Notes on Use, at 12-9. Where
the defendant never argued or presented evidence that "only" the
negligence of persons other than the defendant proximately caused
the plaintiff's injury, the sole-proximate-cause instruction is
properly refused. McDonnell v. McPartlin, 192 Ill. 2d 505, 522,
736 N.E.2d 1074, 1085 (2000). A sole-proximate-cause instruction
is not appropriate unless there is evidence that the sole proxi-
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mate cause (not a proximate cause) of a plaintiff's injury is
conduct of another person or condition. Holton v. Memorial
Hospital, 176 Ill. 2d 95, 134, 679 N.E.2d 1202, 1219 (1997).
The Supreme Court of Illinois held that a sole-
proximate-cause instruction was properly given in Leonardi v.
Loyola University of Chicago, 168 Ill. 2d 83, 101, 658 N.E.2d
450, 459 (1995), but that was a case where two physicians dis-
agreed over how to proceed. The treating physician had counter-
manded the resident's order to test blood gases. The resident
was required to follow the treating physician's orders, and the
treating physician was accordingly alleged to have been the sole
proximate cause of the injury. Either the treating physician was
the proximate cause or the resident was the proximate cause, but
not both. Leonardi, 168 Ill. 2d at 97, 658 N.E.2d at 457.
Leonardi is nothing like the present case, where there was no
disagreement, where the operating surgeon simply complained that
his subordinates failed to discover his mistake. Evidence that
the nurses were negligent does not mean that Dr. Slotky was not
negligent. Even if the nurses were negligent, the injury would
not have occurred if Dr. Slotky had properly checked the uterus
before closing the C-section incision. Leonardi involved a
situation where the physician giving orders was argued to be the
sole proximate cause. The present case involves the converse,
where the physician giving orders argues his subordinates are the
sole proximate cause. A doctor may be held liable for the
negligence of a hospital employee who is subject to the doctor's
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control or supervision. Foster v. Englewood Hospital Ass'n, 19
Ill. App. 3d 1055, 1061, 313 N.E.2d 255, 260 (1974) (captain of
the ship).
Dr. Slotky argues that Petryshyn is estopped from
denying testimony which Petryshyn elicited at Dr. Priver's
evidence deposition. A party taking an evidence deposition,
however, may choose to use only a part of that deposition or not
use the deposition at all. "If only a part of a deposition is
read or used at the trial by a party, any other party may at that
time read or use or require him to read any other part of the
deposition which ought in fairness to be considered in connection
with the part read or used." 210 Ill. 2d R. 212(c). The issue
here, however, is not one of fairness or completeness, but
whether Dr. Slotky may use an unconnected portion of an evidence
deposition which Petryshyn chose not to use.
The Adams case, cited by the majority, actually refused
to allow the party not taking the deposition to use a portion of
the deposition that was not "connected" to the part of the
deposition that was admitted, because it involved cross-examina-
tion beyond the scope of plaintiff's direct. Adams, 369 Ill.
App. 3d at 1002, 874 N.E.2d at 112. "Defendants apparently chose
not to depose Dr. Strasberg directly." Adams, 369 Ill. App. 3d
at 1002, 874 N.E.2d at 112. There is a similar concern in the
present case. There may have been no problem if Dr. Slotky
wanted to take Dr. Priver's testimony and introduce it. It was
unfair, however, to force Petryshyn to introduce Dr. Priver's
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testimony and for Dr. Slotky then to argue, "This is the plain-
tiff's expert, ladies and gentlemen. This isn't the defense
expert. This is plaintiff's expert." Dr. Priver's testimony on
nursing standards of care was elicited when the nurses were part
of the lawsuit and was not part of plaintiff's testimony against
Dr. Slotky. There was no reason for Petryshyn to introduce it
after St. Joseph Medical Center settled out. It was Dr. Slotky
who chose to present the testimony in a strategy to blame the
nurses.
A physician who is not a licensed nurse cannot testify
as to nursing standards of care. Sullivan, 209 Ill. 2d at 112-
13, 806 N.E.2d at 654. Wingo involved a situation where a nurse
observed the patient leaking fluid, but she failed to communicate
this to the doctor. Perhaps a physician should be entitled to
testify about what he or she is entitled to rely upon in the area
of communication from a nurse, but the Wingo exception should not
be allowed to swallow up the rule that the expert must be a
licensed member of the school of medicine about which he proposes
to testify. Every time a nurse violates her standard of care she
should communicate that to the attending physician, but that does
not mean that physicians may testify about every violation of the
standard of care by a nurse. In this case, Dr. Priver testified
to a specific nursing violation of the standard of care: the
nurses did not inspect the IUPC to ensure that it was intact
before discarding it. If that duty did not exist, there was no
duty to communicate.
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The trial judge observes the witnesses and is in a
better position to determine whether a jury verdict is against
the manifest weight of the evidence than is the reviewing court.
Maple v. Gustafson, 151 Ill. 2d 445, 455-56, 603 N.E.2d 508, 513
(1992). A trial court's grant of a new trial accordingly will
not be disturbed absent an abuse of discretion. Smith, 339 Ill.
App. 3d at 74, 790 N.E.2d at 83. "'[T]he question is not whether
the appellate court agrees with the [trial] court, but whether
the [trial] court acted arbitrarily, without employing conscien-
tious judgment ***.'" Long, 336 Ill. App. 3d at 600-01, 783
N.E.2d at 1080, quoting State Farm Fire & Casualty Co., 314 Ill.
App. 3d at 1083, 732 N.E.2d at 1096. How can we say that a trial
court acted arbitrarily, without employing conscientious judg-
ment, when it grants plaintiff a new trial in a medical-malprac-
tice case where an object was left in plaintiff's body following
surgery? Rather than being an abuse of discretion, this seems to
be res ipsa loquitor.
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