Smith v. Pavlovich

914 N.E.2d 1258, 394 Ill. App. 3d 458
CourtAppellate Court of Illinois
DecidedSeptember 10, 2009
Docket5-08-0256
StatusPublished
Cited by36 cases

This text of 914 N.E.2d 1258 (Smith v. Pavlovich) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Pavlovich, 914 N.E.2d 1258, 394 Ill. App. 3d 458 (Ill. Ct. App. 2009).

Opinion

JUSTICE WELCH

delivered the opinion of the court:

This is a medical malpractice action brought by the plaintiff, Wanda Mae Smith, individually and as the special administrator of the estate of her deceased daughter, Crystal Smith, against a licensed advanced practice nurse, Patricia G. Dillard, R.N., and two doctors, James J. Pavlovich, M.D., and Kathryn A. Churling, M.D., all of whom practiced at the Carbondale Clinic. 1 Crystal was born December 2, 1998, and died March 18, 2002, at the approximate age of three years, from what is believed to have been bacterial meningitis that attacked her brain. In her complaint filed in the circuit court of Jackson County on February 2, 2004, the plaintiff alleges that the defendants were negligent in failing to recommend and administer the vaccine PCV7, known as Prevnar, which she alleges would have prevented the infection.

Crystal visited the Carbondale Clinic as a patient a total of six times. On each occasion she saw only nurse Dillard. Each of these visits was a “focused visit,” that is, it was made to address a particular problem such as a cold or a sore throat. None of the visits was for a “well-baby” checkup, which was typically of broader scope than a focused visit. Crystal never saw Dr. Pavlovich or Dr. Churling on any of these focused visits. Crystal was in the presence of Dr. Pavlovich on occasion when she accompanied her mother and her younger sister, Gabrielle, on Gabrielle’s well-baby visits with Dr. Pavlovich. Dr. Pavlovich was Gabrielle’s pediatrician. He never examined or treated Crystal. Dr. Churling never saw Crystal. Crystal’s mother was never offered the vaccine Prevnar for Crystal on any of these focused visits with nurse Dillard or while in the presence of Dr. Pavlovich during Gabrielle’s visits.

After several days of a jury trial, upon the motion of the defendants, the circuit court entered several orders that resulted in directed verdicts in favor of each defendant and against the plaintiff. The circuit court granted the defendants’ motion to bar the testimony of Dr. Marc Weber regarding the standard of care applicable to advanced practice nurses, because Weber was a physician and not an advanced practice nurse. Because the plaintiff had no other expert witness to testify to the applicable standard of care of an advanced practice nurse and because nurse Dillard had testified that she had met the standard of care, the circuit court directed a verdict in her favor. With respect to the physician defendants, Dr. Pavlovich and Dr. Churling, the circuit court held that the plaintiff was unable to establish a physician-patient relationship and therefore could not prove that the defendant physicians owed Crystal a duty of care. Accordingly, the court directed verdicts in favor of the physician defendants.

The plaintiff appeals these orders, as well as the circuit court’s denial of her motion to amend her complaint to add a new theory of negligence — that the defendants were negligent in failing to prescribe high-dose amoxicillin to Crystal when she first became sick. For reasons that follow, we affirm.

We turn first to the circuit court’s orders barring the testimony of Dr. Marc Weber regarding the standard of care of an advanced practice nurse and directing a verdict in favor of nurse Dillard. Dillard was a registered nurse who was also certified and licensed as an advanced practice nurse in accordance with the Nursing and Advanced Practice Nursing Act (225 ILCS 65/15 — 5 et seq. (West 2006)). In order to be so licensed, an individual must be a licensed registered nurse and hold a current national certification from an appropriate national certifying body and have obtained a graduate degree appropriate for national certification in a clinical advanced practice nursing specialty or a graduate degree or post-master’s certificate from a graduate-level program in a clinical advanced practice nursing specialty. 225 ILCS 65/15 — 10(a) (West 2006). Although Dillard had a specialty certification in obstetrics/gynecology, she was working at the Carbondale Clinic in pediatrics.

As an advanced practice nurse, Dillard worked independently of any doctor. She could independently see and care for patients, order and interpret tests, and write prescriptions without being required to confer with or seek the approval of a doctor. She was, however, required to work under a written collaborative agreement with a collaborating physician which, among other things, authorizes the categories of care, treatment, or procedures to be performed by the advanced practice nurse. 225 ILCS 65/15 — 15 (West 2006). An advanced practice nurse works under the medical direction of the collaborating physician. 225 ILCS 65/15 — 15 (West 2006). The Carbon-dale Clinic billed patients the same rate when they saw Dillard as they did when patients saw doctors.

Marc Weber is a medical doctor who is board-certified in pediatrics. He is not a nurse or an advanced practice nurse. He was designated by the plaintiff as her expert witness on the standard of care applicable to Dillard as an advanced practice nurse.

Dillard filed a motion in limine to bar the expert testimony of Dr. Weber regarding the standard of care applicable to her as an advanced practice nurse, because in Illinois, in order to offer expert opinion testimony on the standard of care in a given school of medicine, an expert must be licensed in that school of medicine. Because Dr. Weber was licensed as a medical doctor and not a nurse, he was not qualified to offer expert opinion testimony on the standard of care applicable to the nursing profession or advanced practice nurses.

The plaintiff responded that where the defendant was acting essentially as a pediatrician and not as a nurse, she should be subject to the standard of care of a pediatrician and that a pediatrician was competent to offer an expert opinion on the standard of care applicable to pediatricians. The plaintiff argued that Dillard was in reality practicing pediatrics and not nursing.

The circuit court granted Dillard’s motion in limine, barring the expert testimony of Dr. Marc Weber regarding the standard of care applicable to advanced practice nurse Dillard. Accordingly, Dillard filed a motion for a judgment in her favor because the plaintiff had no other expert witness competent to offer opinion testimony on the applicable standard of care and could not, therefore, establish a prima facie case of negligence. Furthermore, Dillard herself had testified that she had not violated the applicable standard of care. The circuit court granted Dillard’s motion and directed a verdict in her favor. The plaintiffs posttrial motion was denied.

In medical malpractice suits such as the one at bar, the plaintiff must establish the applicable standard of care through expert testimony. Dolan v. Galluzzo, 77 Ill. 2d 279, 282 (1979). It is well established that, in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein. Dolan, 77 Ill. 2d at 285; Sullivan v. Edward Hospital, 209 Ill. 2d 100, 123 (2004).

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Cite This Page — Counsel Stack

Bluebook (online)
914 N.E.2d 1258, 394 Ill. App. 3d 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-pavlovich-illappct-2009.