Travaglini v. Ingalls Health System

919 N.E.2d 445, 396 Ill. App. 3d 387
Appellate Court of Illinois·Decided November 24, 2009·No. 1-08-0081·Published·Cited by 10 cases

Opinion

PRESIDING JUSTICE CUNNINGHAM

delivered the opinion of the court:

Following a jury trial of this wrongful death action, on September 13, 2007, the circuit court of Cook County entered judgment on the jury’s verdict of $500,000 for the plaintiff Clara Travaglini (the plaintiff) 1 , the independent executor of the estate of Bernard M. Travaglini (the decedent) and his wife, and against the defendants, Ingalls Health System, a corporation, and Ingalls Memorial Hospital, a corporation (the defendants). The defendants now appeal, alleging that the trial court permitted the opinion of a lay witness, Lamont Carrel (Carrel), that he observed the victim choking and that testimony was in fact a “medical opinion” and therefore erroneously admitted. They also argue that the testimony of the plaintiffs expert witnesses was insufficient to meet the plaintiffs burden of proof because those witnesses relied upon the erroneously admitted testimony of the lay witness and therefore the trial court erred in failing to grant a directed verdict for defendants at the close of the plaintiffs case. In a second challenge to the testimony of the lay witness, Carrel, the defendants contend that the witness should not have been permitted to testify concerning what he observed as the decedent was dying and therefore a pattern instruction on determining damages for pain and suffering should not have been given. Illinois Pattern Jury Instructions, Civil, No. 31.10 (2006) (hereinafter, IPI Civil (2006)). The defendants allege that the plaintiffs expert on nursing care, nurse Pamela A. Collins, should not have been permitted to testify that the defendants’ nursing staff violated the standard of care. The defendants also assert that the jury verdict was contrary to the manifest weight of the evidence. They allege that one of the plaintiffs medical experts, Dr. Daniel M. Derman, testified to previously undisclosed medical opinions in violation of Supreme Court Rule 213 (210 Ill. 2d R. 213) and that his testimony should have been stricken. The defendants also challenge the testimony of expert witness Dr. James Bryant, the pathologist hired by the decedent’s family to perform an autopsy and subpoenaed by the plaintiff to testify at trial. The defendants allege that Dr. Bryant violated Rule 213 (210 Ill. 2d R. 213) because key portions of his testimony were not disclosed before trial. The defendants further assert that the trial court erred in not permitting them to submit two special interrogatories to the jury. They also contend that comments by the trial court denied them a fair trial. Finally, the defendants contend that the trial court erred in barring them from using a prior conviction to impeach the lay witness, Carrel. We affirm.

BACKGROUND

The following facts were established at trial. On February 22, 2002, the plaintiff’s 84-year-old husband, Bernard Travaglini (decedent), was hospitalized at Ingalls Memorial Hospital for overnight monitoring because he had been complaining of not feeling well. Dr. Harish Bhatia testified that he had been the decedent’s doctor for “many years.” Dr. Bhatia was board certified in internal medicine and had his own practice, with admitting privileges at Ingalls Hospital. Dr. Bhatia testified that when he arranged for the hospital admission of the decedent, he specifically instructed Phyllis Badmus, a nurse at the hospital, that the decedent should be assisted with his food and monitored while eating. The decedent was known to experience difficulty swallowing food as the result of a stroke. Testimony at trial established that the decedent’s wife, Clara Travaglini, always monitored and assisted him while he ate, to ensure that he ate slowly, ingesting only one piece of food at a time. There was also testimony that at mealtimes, Clara would cut the decedent’s food into small pieces to minimize his swallowing difficulty. Dr. Bhatia testified that at about 10 p.m. on the day the decedent was admitted to Ingalls, he received a call from the hospital informing him that the decedent had died. He also testified that he had a “vague recollection” of being told that there was nobody in the room while the decedent was eating.

The decedent’s three sons testified that he frequently would choke when he ate, but if he ate slowly he did not experience this problem. They also testified that the night before the decedent’s scheduled funeral they decided to have an autopsy performed on him, after they received a telephone call from the mother of Lamont Carrel, the decedent’s hospital roommate.

Carrel testified that he was 18 years old at the time of the occurrence and shared the hospital room with the decedent on the night in question. Carrel and the decedent were engaged in casual conversation when a nurse’s aide brought the decedent a sandwich and then left the room. The aide, Jenica Mauban, testified that she could not recall anything about her interactions with the decedent. According to Carrel, as the decedent was eating his sandwich, he began to choke. Carrel said that no one was monitoring the decedent while he ate. Carrel testified as follows:

“Then we was talking, like, all of a sudden, like, I didn’t really hear him talking no more and I hear him — I heard a struggle like he was choking. He was choking. I asked him was he all right, he was not responding, so he got violent. He got really violent. He was choking. He was struggling in the bed, so I started pressing the button for the nurse. $ ^ $
I heard him — I seen him choking. He was moving violent. He was struggling. He was trying to get out and sit up all the way. He was choking. * * ❖
[In response to counsel’s question regarding whether the decedent was making any sounds] Yes. Choking noise, violent— violent motions and he was choking. He was leaning into it, like his neck, he was choking.”

According to Carrel, when he pushed the emergency button, a nurse came into the room within several minutes. He told her “The guy next to me is choking.” The nurse ran out of the room and then numerous hospital personnel came in and began to work on the decedent. Carrel’s trial testimony describing what he saw was as follows:

“They was working on him. They was doing a lot of stuff to him but he didn’t make it. I knew that just by looking — he was looking at me the whole time. The whole time he was looking at me with his eyes *** I know he didn’t make it. I was looking at him.”

The defense never submitted a motion in limine before trial to bar this testimony nor did they object nor seek to have this testimony barred or stricken during trial. They first objected to this testimony in their posttrial motion for a new trial, asserting that as a lay witness, Carrel was not qualified to testify that the decedent was choking.

The plaintiff presented the expert testimony of a registered nurse, Pamela A. Collins, on the question of whether the standard of care for nurses was breached in the care and treatment of the decedent. Collins testified that she had a bachelor of arts degree and a master’s degree in nursing, as well as a bachelor of arts degree in community health and public education. She had been a nursing administrative supervisor and then became a nurse manager of a 27-bed medical-surgical unit.

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Travaglini v. Ingalls Health System, 919 N.E.2d 445, 396 Ill. App. 3d 387 (Ill. Ct. App. 2009).

919 N.E.2d 445 (Travaglini v. Ingalls Health System) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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