NO. 5-92-0628
THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
SUSAN GRANBERRY, by her Mother and ) Appeal from the
Next Friend, CAROL GRANBERRY; and ) Circuit Court of
CAROL GRANBERRY, Individually, ) Jackson County.
)
Plaintiffs-Appellants, )
v. ) No. 84-L-55
CARBONDALE CLINIC, S.C., a )
Corporation; JOSEPH C. TSUNG, M.D.; )
and URDUJA PULIDO, M.D., ) Honorable
) George Oros,
Defendants-Appellees. ) Judge, presiding.
_________________________________________________________________
JUSTICE MAAG delivered the opinion of the court:
Plaintiffs, Susan Granberry, by her mother and next friend,
Carol Granberry, and Carol Granberry, individually, filed an eight-
count complaint on May 4, 1984, in the circuit court of Jackson
County alleging medical malpractice against defendants, Carbondale
Clinic, Joseph C. Tsung, M.D., William R. Hamilton, M.D., and
Sidney G. Smith, M.D. More specifically, the complaint alleged,
inter alia, that because defendants were negligent in treating
Carol's preeclampsia, she delivered a premature child that suffered
from respiratory distress syndrome, hyperbilirubinemia, birth
trauma, hyponatremia, hypocalcemia, cerebral palsy, and spastic
quadriparesis. On June 26, 1985, plaintiffs amended their
complaint, adding Dr. Urduja Pulido as an additional defendant.
Susan's cerebral palsy was caused by a brain lesion known as
periventricular leukomalacia. Periventricular leukomalacia is a
destruction of the white matter next to and above the brain
ventricles. Due to plaintiffs' main theory of malpractice being
that Susan's brain lesion would not have developed but for the
negligent failure to deliver Susan as soon as Carol developed
severe preeclampsia, plaintiffs needed to establish that Susan's
brain lesion developed in utero as a result of Carol's severe
preeclampsia.
The trial lasted nearly four months, with the jury returning
a verdict in favor of defendants. Plaintiffs' posttrial motion was
denied, and a timely notice of appeal was filed.
Plaintiffs claim that the trial court erred in refusing to
allow them to ask Dr. Allan Bennett, a treating obstetrician, a
hypothetical question designed to elicit a conditional admission of
liability merely because Dr. Bennett did not agree with the
condition.
The relevant facts are as follows. Dr. Roger Klam, an
obstetrician and gynecologist, testified on June 15, 1989. Dr.
Klam was the attending obstetrician at the time of Susan's birth
due to the fact that he was the doctor on call on May 24, 1982.
Dr. Klam stated that the fetal heart monitor tracings at the time
of Carol's labor "looked perfectly normal." Over the course of
several pages of transcript, Dr. Klam agreed that Carol had
heartburn complaints consistent with epigastric pain; elevated
liver enzymes on May 17, 1982, and May 24, 1982; 160 systolic on
two or more occasions while at bed rest six hours apart; three-plus
edema; and two-plus persistent proteinuria for two weeks. He
agreed that these symptoms "can be indicative of severe pre-
eclampsia and according to `Williams,' they are." Plaintiffs'
counsel listed the aforementioned symptoms and the sentence in
quotation marks on Plaintiffs' Exhibit No. 98. It appears from a
review of the record that at this point in Dr. Klam's testimony,
Plaintiffs' Exhibit No. 98 read as follows:
"Carol Granberry
She had:
1. Heartburn complaints consistent with epigastric
pain[.]
2. She had markedly elevated liver enzymes on 5-17-82
and 5-24-82[.]
3. She had 160 systolic on 2 or more occasions while
at bedrest 6 hours apart[.]
4. She had 3+ edema.
5. 2+ persistent proteinuria for 2 weeks.
These can be indicative of severe pre-eclampsia and according to
`Williams['] they are[.]
Per Dr. Klam--6-15-89[.]"
Approximately 60 pages later, plaintiffs' counsel asked Dr. Klam if
Carol suffered from three-plus brisk reflexes during the course of
her pregnancy while she was hospitalized. Dr. Klam stated that he
remembered seeing it one time. Then, the following colloquy
between plaintiffs' counsel and Dr. Klam occurred:
"Q. [by plaintiffs' counsel] *** [B]risk reflexes ***
is [sic] another indication of severe preeclampsia,
isn't it, sir?
A. [by Dr. Klam] It's a warning sign. *** It can be.
It's one thing that--it might." (Emphasis added.)
Plaintiffs' counsel then completed Plaintiffs' Exhibit No. 98,
and in its entirety, it reads as follows:
6. 3+ brisk reflexes
These can be indicative of severe pre-eclampsia and according to
`Williams,['] they are[.]
Written on the side of Exhibit No. 98 is the following:
"7. Sudden or excessive weight gain--9 pounds[.]"
After carefully reviewing the record, it is clear that Plaintiffs'
Exhibit No. 98 was prepared by plaintiffs' counsel over a period of
time during Dr. Klam's cross-examination.
Dr. Bennett testified on June 16, 1989. Dr. Bennett is
affiliated predominately with defendant Carbondale Clinic.
Although Carol's primary attending physician during the majority of
her pregnancy was Dr. Joseph Tsung, Dr. Bennett acted as Carol's
primary attending physician during her hospitalization in May of
1982 because Dr. Tsung was on vacation at that time.
The hypothetical question at issue and the testimony leading
up to the hypothetical question were as follows:
"Q. [by plaintiffs' counsel] Now, Doctor, have I cor-
rectly stated your opinion: `Hyperactive reflexes
[also known as "brisk" reflexes] or hyperreflexia
are not indications of a worsening case of pre-
eclampsia unless accompanied by clonus, twitching,
or seizures'?"
A. [Dr. Bennett] Yes, sir.
* * *
Q. Now, so that we make it clear, those were your
views, your opinions and medical views that you
acted upon and used and relied upon in observing
Carol Granberry and in prescribing treatment or
care for her during the time she was under your
care. Isn't that correct, sir?
A. That is, yes.
Q. And, Doctor, if it develops that the fact is that
hyperactive reflexes or hyperreflexia are, indeed,
indications of a worsening case of preeclampsia,
then would it be fair to say, sir, that you did not
adequately evaluate and care for Carol Granberry
during the time she was under your care?" (Empha-
sis added.)
Defense counsel objected, and the court sustained the objection.
Plaintiffs claim that the trial court erred in refusing to allow
them to ask Dr. Bennett the aforementioned question.
Defendants claim that the hypothetical question suggests that
plaintiffs' counsel was referring to evidence that would subse-
quently be introduced at trial. The practice of permitting an
expert witness to answer a hypothetical question based upon facts
that have not been previously adduced into evidence, regardless of
whether there is a guarantee that such facts will subsequently be
produced, was said to be "not desirable" and "strongly to be
discouraged." Jamison v. Lambke, 21 Ill. App. 3d 629, 636, 316
N.E.2d 93, 98 (1974). Further, whether such practice will be
permitted is within the sound discretion of the trial court.
Gibson v. Healy Brothers & Co., 109 Ill. App. 2d 342, 353, 248
N.E.2d 771, 776 (1969). If evidence is admitted upon an assurance
that it will later be connected up, it should be excluded upon the
failure to establish the connection. Leonardi v. Loyola Universi-
ty, 168 Ill. 2d 83, 96, 658 N.E.2d 450, 457 (1995). Plaintiffs
claim, however, that Dr. Roger Klam had already testified to the
alleged facts or opinions hypothesized.
It was formerly the rule in Illinois that an expert witness
could only be asked whether the facts stated in the hypothetical
question are "sufficient", from a medical or surgical point of
view, to cause and bring about a certain condition or malady, or he
may be asked whether a given condition or malady of a person "may"
or "could" result from and be caused by the facts stated in the
hypothetical question. Fellows-Kimbrough v. Chicago City Ry. Co.,
272 Ill. 71, 77, 111 N.E. 499, 502 (1916). The Fellows-Kimbrough
court determined, however, that the physician should not be asked
whether or not such facts "did cause" and bring about such
condition or malady. Fellows-Kimbrough, 272 Ill. at 77, 111 N.E.
at 502. In 1960, the Illinois Supreme Court changed this rule, and
since that time, counsel may also ask whether the condition "did
cause" the particular result, as long as the witness is not called
upon to decide any controverted fact but is asked to assume the
truth of the facts testified to. It is therefore proper to phrase
the hypothetical in either form. Clifford-Jacobs Forging Co. v.
Industrial Comm'n, 19 Ill. 2d 236, 243, 166 N.E.2d 582, 587 (1960).
The assumptions in a hypothetical are proper as long as they
are within the realm of direct or circumstantial evidence or are
reasonable inferences from the established facts. Guardian
Electric Manufacturing Co. v. Industrial Comm'n, 53 Ill. 2d 530,
535, 293 N.E.2d 590, 594 (1973). Moreover, the facts suggested in
hypothetical questions need not be undisputed but need only be
supported by the record, and "[i]n presenting evidence by a
hypothetical question, counsel propounding the question has a right
to ask it, assuming only the facts as he perceives them to be shown
by the evidence." Carter v. Johnson, 247 Ill. App. 3d 291, 297,
617 N.E.2d 260, 265 (1993). Opposing counsel may then challenge
the controverted facts by presenting his own hypothetical questions
to the witness. Carter, 247 Ill. App. 3d at 297, 617 N.E.2d at
265. "Facts, data, or opinions supported by the evidence *** may
be varied in questions asked on cross-examination designed to
develop a potentially different opinion of the expert than would
prevail if the trier believed a contrary version of disputed
facts." (Emphasis added.) Graham, Cleary & Graham's Handbook of
Illinois Evidence, §705.2 at 554 (5th ed. 1990).
Defendants argue that it is improper to ask a witness to
assume a fact in a hypothetical that the witness does not believe
to be true. No Illinois case is cited in support. The case of
Baker v. Gordon, 759 S.W.2d 87 (Mo. Ct. App. 1988), is relied upon.
We express no opinion of whether Baker accurately states Missouri
law. It does not accurately state Illinois law. Illinois law may
be found in the most recent pronouncement of our supreme court:
"Counsel has a right to ask an expert witness a hypothetical
question that assumes facts that counsel perceives to be shown by
the evidence. [Citation.] The assumptions contained in the
hypothetical question must be based on direct or circumstantial
evidence, or reasonable inferences therefrom. [Citation.] The
hypothetical question should incorporate only the elements favoring
his or her theory, and should state facts that the interrogating
party claims have been proved and for which there is support in the
evidence. On cross-examination, the opposing party may substitute
in the hypothetical those facts in evidence that conform with the
opposing party's theory of the case." Leonardi v. Loyola Universi-
ty of Chicago, 168 Ill. 2d 83, 96, 658 N.E.2d 450, 456-57 (1995).
We find that there was sufficient evidence in the record to
support asking Dr. Bennett the aforementioned hypothetical
question. First, Dr. Klam testified that brisk reflexes can be an
indication of severe preeclampsia. Second, Dr. Klam stated that
brisk reflexes might be an indication of severe preeclampsia.
Finally, Dr. Klam testified that brisk reflexes are a warning sign
of severe preeclampsia. Hence, plaintiffs' hypothetical question
was framed properly, having relied on the inferences from Dr.
Klam's testimony. That being the case, Dr. Klam's actual testimony
did include the necessary facts to support plaintiffs' counsel
asking Dr. Bennett the above-mentioned hypothetical question.
Because the circuit court denied plaintiffs' counsel the
opportunity to ask Dr. Bennett the hypothetical question, a
question supported by the evidence already admitted, it abused its
discretion. The evidence and inferences to be drawn from the
evidence were sufficient to support the assumptions stated in the
hypothetical question. Further, we believe that this error was
prejudicial because the answer to the hypothetical was the very
essence of plaintiffs' case. By sustaining defense counsel's
objection, the trial judge deprived plaintiffs of the opportunity
to establish that Carol's preeclampsia had become severe at least
by May 13, 1982, when Susan's brain was still "in reasonably good
condition."
Plaintiffs also claim that the trial court erred in refusing
to allow plaintiffs to cross-examine Dr. William R. Hamilton from
four medical articles published after 1982, the year Susan was
born. Plaintiffs state that their purpose in using the post-1982
articles was to "counter Dr. Hamilton's repeated statements that
Carbondale Memorial Hospital's ultrasound equipment was capable of
detecting periventricular leukomalacia in 1982." (Emphasis added.)
Plaintiffs claim that "Dr. Hamilton testified that ultrasound was
capable of detecting the lesion which eventually caused the baby's
cerebral palsy, but that the ultrasound instead indicated that the
baby's brain was `normal,' meaning that `the brain was put together
correctly' and that there were no `significant intercranial [sic]
abnormalities.'" Plaintiffs argue that the logical inference is
that this negative ultrasound finding meant that there was no
lesion in the baby's brain as late as two days after the baby's
birth. Plaintiffs claim that this inference "blew to smithereens
plaintiffs' theory that the brain lesion developed before birth"
because the baby had been left too long in a contaminated intra-
uterine environment.
It is important, for purposes of this issue, to note that
periventricular leukomalacia. Dr. Hamilton began testifying on
July 18, 1989. Dr. Hamilton was, at all relevant times, a
pediatrician concentrating in the practice of neonatology. Dr.
Hamilton was directly involved in Susan's care from shortly after
her birth until she was eight months old. On direct examination,
Dr. Hamilton testified that an intracranial ultrasound was
performed on Susan on May 26, 1982, when she was two days old. He
stated that the examination was "unremarkable," meaning that it was
"normal." On July 24, 1989, the following questions were asked of
Dr. Hamilton by plaintiffs' counsel:
"Q. And, Doctor, would you also agree, sir, that an
ultrasound after birth would not show
periventricular leukomalacia?
A. No.
Q. You won't agree with that?
Q. Do you have any text there to support that state-
ment, sir?
A. Yes, Dr. Volpe has an article here in 1982, stating
that ultrasound is correlated with the autopsy
findings for periventricular leukomalacia.
Q. Would you read *** what is says, Doctor?
A. (Reading) "Ultrasound scanning has been very
useful in the evaluation of periventricular white
matter injury. Periventricular leukomalacia is
visualized especially well when hemorrhagic, al-
though nonhemorrhagic periventricular leukomalacia
proved at postmortem examination is also demon-
strated effectively."
Defendants claim that these questions were not specific to
Susan and the ultrasound equipment at Carbondale Memorial Hospital
in 1982. While we agree that the question and answer addressed the
capabilities of ultrasound equipment in general, it is clear that
Dr. Hamilton's statement regarding ultrasound capabilities in 1982
left the jurors with the inference that the ultrasound equipment at
Carbondale Memorial Hospital in 1982 was capable of picking up
periventricular leukomalacia. In fact, the next day, on July 25,
1989, plaintiffs' counsel claimed that he was referring specifical-
ly to Carbondale Memorial Hospital's equipment when he asked the
aforementioned questions. The relevant portion of the record is as
follows:
"Q. [by plaintiffs' counsel] All right, Doctor. You
cited there was one 1982 article that was cited in
Volpe as support for the -- for your statement or
conclusion that ultrasound in 1982, as done in this
hospital, could detect this periventricular
leukomalacia. Correct, sir?
A. [Dr. Hamilton] That article was stated that --
Q. Excuse me. My question is that you concluded from
that, sir, that the Carbondale Memorial Hospital
could detect periventricular leukomalacia with the
ultrasound that they had at that time, did you not,
sir?
A. I don't think that was the question, Mr. Carr.
Q. Well, Doctor, are you now saying that Carbondale
Memorial Hospital did not have the capacity or this
ultrasound that they performed at this particular
date would not show periventricular leukomalacia?
Are you now saying that, sir?
Q. *** All right, is it still your belief, sir, that
the ultrasound that they did here, this linear
real-time ultrasound, could detect periventricular
leukomalacia in Susan?
MR. LYNCH [defense counsel]: Your Honor, I do
object, because the question yesterday was a general one
and it should be not specific to Carbondale or Susan.
MR. CARR [plaintiffs' counsel]: It was specific to
Carbondale. This witness said, and we went through this
sonogram --
THE COURT: Well, gentlemen, if we are going to
start discussing what the evidence was from yesterday, we
will have to send the jury out. The jury will please go
out."
Whereupon, the jury was excused and the following proceedings were
held outside their presence and hearing:
"MR. CARR: Your Honor, the last 30 minutes yester-
day was taken up with going through this ultrasound and
with the doctor explaining that this hospital was capable
of detecting this lesion. That's exactly what we were
talking about. We were discussing this particular
ultrasound and his testimony to the effect that it could
detect this lesion. Now Mr. Lynch says that wasn't the
testimony. It clearly was the testimony of the doctor.
We went through line-by-line here, discussing this
particular ultrasound.
MR. LYNCH: I am particularly objecting to any form
of any questions and this specific question that implies
some change in the doctor's testimony. Mr. Carr asked
the doctor a broad question: Can an ultrasound or could
an ultrasound in 1982 detect periventricular
leukomalacia? And then he just basically dug into a lot
of specific questions about what the particular sonogram
report showed. Now, you know, the thing that I am
objecting to -- and Mr. Carr is welcome to inquire as to
the doctor's opinions, but the questions that seem to
imply that he's changing his answers is what I am
objecting to.
MR. CARR: I didn't ask the question that Mr. Lynch
said that I asked. I was asking specifically about this
ultrasound in my questioning of the doctor, and his
interpretation, his views as to the ability of the
Carbondale Memorial Hospital to detect periventricular
leukomalacia. Mr. Lynch is now making some other
objection than what he made in front of the jury. He
said there was no evidence that we were discussing this
ultrasound. That's what he said when the jury left, and
that's what we were discussing yesterday, and that's what
we are discussing this morning.
MR. LYNCH: I haven't changed what I said in front
of the jury. Mr. Carr did ask a lot of specific ques-
tions about the ultrasound report. The original question
was: Could an ultrasound in 1982 detect periventricular
leukomalacia? And I am not saying that the ultrasound
report wasn't discussed, but he was not asked a question
which Mr. Carr is now implying that he was, you know.
Did Carbondale Memorial Hospital, with this ultrasound in
1982, have the capacity to detect periventricular
leukomalacia? That question wasn't asked.
MR. CARR: That question was asked yesterday. The
doctor said that they did not [sic] have that capacity.
We discussed each line here, and it was pointed out that
these -- this leukomalacia was not demonstrated in this
report. That's exactly what the doctor said. The
question that started this all off was I asked the doctor
to agree that the ultrasound they had at the Carbondale
Memorial Hospital could not detect periventricular
leukomalacia. He disagreed with that. He would not
agree with that. He said, `No, it would detect it.' And
then we took out the ultrasound, and he pointed out that
it wasn't detected, and it was his assertion. Now, if he
is now saying that he doesn't know whether or not the
Carbondale Memorial Radiology Department had the capacity
or whether or not this ultrasound could detect it, then
he is changing his testimony, because that's clearly what
he said yesterday, without a question. And that's the
whole reason for this line of examination today. That's
the whole reason that we have these articles, is to find
out, clearly, that the Carbondale hospital did not have
that capacity and could not do that, as this witness, now
that he's read these articles or read some of these
articles, is apparently going to agree with me. Or else
he is going to say now he has no opinion. But that's
clearly what he said yesterday in front of the jury."
The court, after reviewing the record, first paraphrased Dr.
Hamilton's testimony from July 24, 1989. The court then decided
that plaintiffs' counsel's question was not an improper question
based on the answers that Dr. Hamilton had given the day before,
but the court refused to allow plaintiffs' counsel to cross-examine
using post-1982 medical literature. Because Dr. Hamilton left the
jurors with the inference that ultrasound at Carbondale Memorial
Hospital in 1982 could detect periventricular leukomalacia, we must
now determine whether plaintiffs' counsel should have been allowed
to impeach Dr. Hamilton's testimony with the post-1982 medical
articles.
It is undisputed that when Dr. Hamilton was questioned about
the capacity of ultrasound in 1982 to detect periventricular
leukomalacia, he referred to a 1987 medical treatise entitled
Neurology of the Newborn (2d ed. 1987), written by Dr. Volpe.
Within this 1987 medical treatise, all but one of the authorities
cited by Dr. Volpe were published after the ultrasound performed on
Susan on May 26, 1982.
Plaintiffs sought to discredit Dr. Hamilton's reliance upon
the authorities cited by Dr. Volpe by confronting him with the 1982
article authored by Volpe. This article appeared in the journal
entitled Pediatrics. The article discussed an ultrasound performed
after the infant's thirty-first day of life. The infant died at 34
days of age. The ultrasound disclosed "a densely echogenic area
indicative of hemorrhage." Dr. Hamilton explained that this meant
that the ultrasound was detecting accumulations of blood in the
brain. Periventricular leukomalacia does not necessarily produce
hemorrhaging. In fact, hemorrhage was ruled out as a cause of
Susan's periventricular leukomalacia. Dr. Hamilton agreed that the
ultrasound machine discussed in the 1982 article written by Dr.
Volpe was a rotary scanner that was "more apt to give a better
picture" than the linear scanner used on Susan at Carbondale
Memorial Hospital in 1982. Hence, plaintiffs were able to
demonstrate that the 1982 authority cited in the 1987 medical
treatise did not support Dr. Hamilton's suggestion that the
ultrasound equipment used at Carbondale Memorial Hospital in 1982
was capable of detecting this condition in Susan.
After plaintiffs' counsel attempted to cross-examine Dr.
Hamilton with the post-1982 medical articles, the trial judge
sustained defense counsel's objection that it is improper to use
post-1982 publications for the purpose of cross-examination in a
case involving malpractice allegedly committed in 1982. The trial
court relied upon Karr v. Noel, 212 Ill. App. 3d 575, 571 N.E.2d
271 (1991), as its basis.
In Karr v. Noel, 212 Ill. App. 3d at 583-84, 571 N.E.2d at
277, this court determined that literature containing medical
knowledge not available at the time of the alleged malpractice as
evidence of deviation from the standard of care at the time of the
alleged malpractice was highly prejudicial evidence. Plaintiffs
claim, however, that they were not attempting to use the post-1982
articles as proof of malpractice, but rather for the express
purpose of impeaching Dr. Hamilton's statement that ultrasound
technology in 1982 was capable of detecting periventricular
leukomalacia. We agree.
After reviewing the record, it is clear that plaintiffs were
attempting to use the post-1982 medical articles to show the
diagnostic capabilities of ultrasound, not to show standard of
care. While we agree that postevent literature should not be used
to show standard of care, it is proper to use postevent literature
for other purposes such as showing the diagnostic capabilities of
equipment. Rules of evidence and law must be read and applied with
an understanding of the reason for the rule. The reason that
medical literature that postdates the alleged malpractice is not
admissible is because no physician should have his conduct measured
by knowledge and standards not in existence at the time the conduct
at issue occurred. The diagnostic capabilities of ultrasound
equipment was irrelevant to the standard of care issue in this
case. If there was a deviation from the standard of care that
would subject defendants to liability, that deviation occurred
prior to birth. However, the diagnostic capabilities of ultrasound
were critical to the issue of when Susan suffered her injury, i.e.,
before or after birth. If an ultrasound examination performed
shortly after birth was capable of showing the presence of
periventricular leukomalacia, assuming it was present, and if the
examination was negative, that would be persuasive evidence that
the injury did not occur prior to birth. But if the test was not
diagnostic for the condition, then a normal exam would simply be
irrelevant, at least on the question of when the condition
developed, because it would neither establish nor refute the
existence of the condition. When Dr. Hamilton testified that the
test was diagnostic and cited medical literature to support his
testimony, it was essential to allow cross-examination to attempt
to impeach the doctor with contrary literature, whether that
literature was published during, before, or after 1982. Hence, we
believe that the trial court abused its discretion in refusing to
allow plaintiffs' counsel the opportunity to cross-examine Dr.
Hamilton with the post-1982 medical articles.
We recognize that at a different point in his testimony Dr.
Hamilton agreed with the following statement found on an exhibit:
"BASED ON PRESENT-DAY KNOWLEDGE, THE PERIVENTRICULAR
LEUKOMALACIA WAS PRESENT, IN MY OPINION ON 5-26-82, BUT WAS
NOT DETECTED BY THE ULTRASOUND PERFORMED ON THAT DATE.
PER DR. HAMILTON
7-25-89"
Defendants claim that by virtue of this concession, plain-
tiffs' cross-examination with the post-1982 literature would have
been merely cumulative. We disagree. We believe that Dr.
Hamilton's repeated statement that ultrasound in 1982 could detect
periventricular leukomalacia prejudiced plaintiffs' case. The
jury heard that there were a total of five medical articles
purportedly supporting Dr. Hamilton's suggestion that a 1982
ultrasound might have detected periventricular leukomalacia in
Susan. Simply because Dr. Hamilton testified that, in his opinion,
the periventricular leukomalacia was present two days after Susan's
birth and was undetected by the ultrasound does not remedy the
prejudice caused by allowing the doctor's testimony on ultrasound
capabilities to go unrefuted and unimpeached. Plaintiffs' counsel
should have been allowed to impeach the doctor with respect to each
of those articles. This refusal to allow the impeachment consti-
tutes reversible error.
We have reviewed Dr. Pulido's contention that these errors do
not pertain to the case against her. We agree.
As Dr. Pulido points out, plaintiffs' own expert testified
that the injury to Susan Granberry occurred well after Dr. Pulido
last saw Carol Granberry. The plaintiffs' expert acknowledged that
while the medications prescribed by Dr. Pulido were inappropriate,
they neither helped nor hurt Carol or Susan Granberry. The issue
of Dr. Pulido's negligence was submitted to the jury, and they
found in her favor. After reviewing the evidence, we do not
believe that the evidentiary errors that are discussed elsewhere in
this decision impacted on the case against Dr. Pulido. Therefore,
the verdict in favor of Dr. Pulido is affirmed.
Accordingly, we affirm in part and reverse in part the
judgment of the circuit court, and we remand this case to the trial
court for a new trial on all issues pertaining to the remaining
defendants.
Affirmed in part and reversed in part; cause remanded.
CHAPMAN, J., and RARICK, J., concur.
ATTACH A FRONT SHEET TO EACH CASE
___________________________________________________________________________
IN THE
___________________________________________________________________________
___________________________________________________________________________
Opinion Filed: November 13, 1996
___________________________________________________________________________
Justices: Honorable Gordon E. Maag, J.
Honorable Charles W. Chapman, J., and
Honorable Philip J. Rarick, J.,
Concur
___________________________________________________________________________
Attorneys Rex Carr, Gerald L. Montroy, Michael B. Marker, Carr,
for Korein, Tillery, Kunin, Montroy & Glass, 412 Missouri
Appellant Avenue, East St. Louis, IL 62201
___________________________________________________________________________
Attorneys Paul R. Lynch, Craig & Craig, 227½ South 9th Street, P.O.
for Box 1545, Mt. Vernon, IL 62864 (for Carbondale Clinic, S.C.)
Appellee
John E. Fick, Samuels, Miller, Schroeder, Jackson & Sly,
406 First of America Center, P.O. Box 1400, Decatur, IL
62525-1400 (for Joseph C. Tsung, M.D.)
James E. Neville, Shari M. Brunton, Neville, Richards,
Defranco & Wuller, 5 Park Place Professional Centre, P.O.
Box 20070, Belleville, IL 62220-0070 (for Urduja Pulido,
M.D.)
___________________________________________________________________________