Petryshyn v. Slotky

Opinion

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.

- 2 - 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

- 3 - 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.

- 4 - 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-

- 5 - 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.

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.

- 6 - 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).

- 7 - 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

- 8 - 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

- 9 - 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

- 10 - 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

- 11 - 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-

- 12 - 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

- 13 - 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

- 14 - 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

- 15 - 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

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

- 16 - 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

- 17 - 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.

- 18 - 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

- 19 - 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

- 20 - 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-

- 21 - 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

- 22 - 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

- 23 - 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.

- 24 - 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.

- 25 -