Steele v. Provena Hospitals

ILLINOIS OFFICIAL REPORTS

Appellate Court

Steele v. Provena Hospitals, 2013 IL App (3d) 110374

Appellate Court RITA STEELE, Special Administrator of the Estate of Michelle Koenig,

Caption Plaintiff-Appellee, v. PROVENA HOSPITALS, d/b/a St. Mary’s

Hospital; TIMOTHY MORAN, M.D.; and ECHO MANAGEMENT

AND CONSULTING GROUP, LLC, Defendants-Appellants.

District & No. Third District

Docket Nos. 3-11-0374, 3-11-0375 cons.

Rule 23 Order filed June 18, 2013

Motion to

publish allowed September 24, 2013

Opinion filed September 24, 2013

Held On appeal from the judgment entered against decedent’s emergency room

(Note: This syllabus physician and the hospital where the physician worked based on

constitutes no part of plaintiff’s allegation of medical negligence, the judgment against the

the opinion of the court physician was reversed and remanded for a new trial on the ground that

but has been prepared the trial court erred in admitting the testimony of three lay witnesses that

by the Reporter of decedent had a rash that “looked like chicken pox,” since the testimony

Decisions for the was irrelevant, it was tantamount to a medical diagnosis, and plaintiff

convenience of the mischaracterized the description during the cross-examination of

reader.)

defendant’s expert, and, further, the judgment against the hospital was

reversed based on plaintiff’s failure to prove decedent’s reliance on the

hospital or on the employee status of anyone treating her in the

emergency room.

Decision Under Appeal from the Circuit Court of Kankakee County, No. 07-L-18; the

Review Hon. Kendall Wenzelman, Judge, presiding.

Judgment No. 3-11-0374, judgment notwithstanding the verdict entered.

No. 3-11-0375, reversed and remanded.

Counsel on Nancy G. Lischer (argued), of Hinshaw & Culbertson, of Chicago, and

Appeal Dan Softcheck, of Hinshaw & Culbertson, of Joliet, for appellant Provena

Hospitals.

Trisha K. Tesmer (argued), of Cassiday Schade LLP, of Chicago, for

other appellants.

Michael W. Rathsack (argued) and Michael Cogan, of Cogan & Power,

P.C., both of Chicago, for appellee.

Panel JUSTICE McDADE delivered the judgment of the court, with opinion.

Presiding Justice Wright and Justice Schmidt concurred in the judgment,

with opinion.

OPINION

¶1 Rita Steele, plaintiff and special administrator for the estate of Michelle Koenig, filed suit

against emergency room doctor Timothy Moran and his employer, Echo Management and

Consulting, for the wrongful death of her daughter, Michelle, due to alleged medical

negligence. She also sued Provena Hospitals, d/b/a St. Mary’s Hospital, alleging that Moran

acted as its agent and it was, therefore, vicariously liable for her daughter’s death. The jury

rendered a verdict awarding Steele, Todd Koenig, Michelle’s father, and Jessica Watts,

Michelle’s half-sister, $1.5 million. Provena and Moran have both appealed. We reverse and

remand on Moran’s appeal and enter judgment notwithstanding the verdict in favor of

Provena.

¶2 FACTS

¶3 I. Michelle’s Recent Medical History

¶4 On January 13, 2006, Michelle went to the office of her primary care physician, Dr.

Gregory Trapp, complaining of a sore throat and cough. His nurse-practitioner ordered a

throat culture, which was positive for streptococcus infection. Michelle was prescribed an

antibiotic, amoxicillin, and did not subsequently return to Dr. Trapp’s office.

¶5 On February 9, 2006, Michelle began to feel ill at work. Her symptoms included

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difficulty speaking and partial paralysis on her right side. She was picked up from work and

taken home by her mother, but later that day was transported by ambulance to Riverside

Hospital in Kankakee, where she was seen and evaluated by Dr. Trapp, her personal internist.

Dr. Trapp performed a physical examination and initially thought she had suffered a stroke,

blood clot, or cranial bleed. He ordered tests, which he and a consulting neurologist, Dr.

Bruce Dodt, thought supported a diagnosis of multiple sclerosis. He arranged for Michelle’s

transfer from Riverside to the Chicago Institute of Neurology and Neurosurgery (CINN),

where she underwent a number of tests, including a spinal tap requiring a lumbar puncture.

The doctors at CINN diagnosed either presumptive multiple sclerosis (which they described

to Dr. Trapp as rapidly progressing) or lupus. They began a course of steroids while she was

hospitalized and discharged her on February 13 or 14 with instructions to continue on

steroids, starting with a daily dose of 60 milligrams of prednisone and tapering to 40

milligrams per day by February 22. She was to return to CINN for further treatment.

¶6 On Sunday, February 19, Michelle began experiencing severe back pain and a cough. At

the insistence of her mother, Rita, Michelle was taken by ambulance to St. Mary’s Hospital

for emergency treatment. Upon arrival at the hospital, Michelle was given a consent-to-

treatment form to sign. Although neither she nor Rita read the form, Rita printed her

daughter’s name and directed Michelle to sign it.

¶7 Michelle was treated by Dr. Timothy Moran in the emergency department at St. Mary’s.

He was provided with Michelle’s medical history, including her current use of steroids and

the recent diagnosis of presumptive multiple sclerosis/lupus and the fact that she had had

chicken pox. Michelle’s chief complaint in emergency on February 19 was back pain which

limited her ability to get around. She told Dr. Moran that she had recently undergone a

lumbar puncture.

¶8 Dr. Moran performed a physical examination and he treated her back pain with both a

pain medication and a muscle relaxant, which relieved her discomfort enough for Michelle

to walk around and to use the bathroom on her own. Moran also ordered several diagnostic

tests, including blood work, chemistry and metabolic testing, urinalysis and lumbar spine X-

rays. He consulted with Dr. Leonard Cerullo, one of Michelle’s physicians at CINN, and

learned from him that the results of her tests at CINN were still incomplete. He also spoke

with Dr. Khan, an internist who was on call for Dr. Trapp but who declined to come to the

emergency room, instead advising that Michelle should see Dr. Trapp in the office the

following day.

¶9 During his examination, Dr. Moran observed a rash on Michelle’s head, chin, chest and

upper back, which he described as “scattered red papular vesicular lesions.” A papular lesion

is a raised lesion or red bump, and a vesicle is a small blister within the skin. Dr. Moran later

testified that he did not think this rash looked like chicken pox because Michelle did not have

the dry and crusty lesions he believed she would have exhibited if the virus had developed

within the past 24 hours, and they were not itching.

¶ 10 Results of the testing showed she had no fever, her urinalysis was negative for nitrites,

leukocyte esterase, significant protein and blood. She did have a white blood cell count of

19,000 and her liver enzymes were somewhat elevated. Although Dr. Moran noted the

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elevated enzymes, he formed “no opinion” at that time as to the reason for the elevation, nor

did he know that chicken pox could be a cause.

¶ 11 Dr. Moran released Michelle that same night with instructions to continue the pain

medication and muscle relaxant, to follow up with Dr. Trapp the next day (Monday), and

with Dr. Cerullo at CINN as previously scheduled.

¶ 12 Michelle did not see Dr. Trapp during the day on Monday, but at 6:40 p.m. on that

evening, February 20, she again presented for emergency care, this time at Riverside where

she had been evaluated on February 9. She was again complaining of back pain and

abdominal discomfort/nausea.

¶ 13 (The following portion of Michelle’s medical history, set forth in paragraphs 14 through

18, was deemed irrelevant to the standard of care and was excluded from the jury by order

of the trial court. The information is summarized from the deposition testimony of Dr.

Manczko, Dr. Trapp, and Dr. Ramani. We include it here because it forms the basis of a

significant issue on appeal.)

¶ 14 At Riverside, Michelle was first seen by emergency department physician Dr. Thaddeus

Manczko. Because he had no independent recollection of these events, his deposition

testimony was drawn from his notes and the hospital’s comprehensive chart. Manczko said

Michelle presented with radiating pain in her lower back and abdominal discomfort. He

observed residual right-side weakness, some symptoms of mild dehydration and of infection,

bruising around the lumbar puncture site, and pale skin, and he specifically noted “no skin

lesions to suggest shingles.” He called in Dr. Trapp because, as Michelle’s primary care

physician, he would be able to admit her to the hospital if that became necessary.

¶ 15 Tests were ordered on February 20–some by Manczko and some by Trapp–which showed

a white blood cell count that had more than doubled from the 19,000 finding at St. Mary’s

to 39,000 and liver enzymes that had dramatically increased.1 Manczko thought these results

were consistent with infection but could also result from stress, medication, hepatitis, or

inflammation (epidural abscess). He stated he could not base a final or ultimate diagnosis on

that information alone, nor was he, as an emergency room physician, in a position to rule out

multiple sclerosis or viral infection as the cause of her symptoms. In light of the incomplete

information available to him, he made a primary diagnosis of abdominal pain, a secondary

diagnosis of low back pain, and noted a need to rule out an epidural abscess resulting from

lumbar puncture.

¶ 16 After being called in, Dr. Trapp assumed the triaging function and primary responsibility

for Michelle’s treatment. He secured consults with three specialists: Dr. Ed Jerkovic

(gastrointestinal), Dr. Bruce Dodt (neurology), and Dr. Ram Ramani (infectious diseases).

Dr. Ramani did not examine Michelle until Tuesday (February 21), and by then her white

blood cell count had risen to 50,000 and her liver enzymes had escalated still further.2 When

1

On February 19, her AST/SGOT was 80 and her AFT/SGPT was 97.

On February 20, her AST/SGOT was 1,364 and her AFT/SGPT was 986.

2

On February 21, her AST/SGOT was 2,870 and her AFT/SGPT was 1,778.

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asked during his deposition whether he was comfortable with his diagnosis of her at

Riverside, Dr. Trapp responded:

“We were unsure what caused it, but the concern was that the liver was failing in front

of our eyes. Her numbers multiplied by thousand-fold in 12-15 hours. And she was

showing signs of not just that, but the synthesis or the function of the liver was also

failing.”

¶ 17 All four doctors were extremely concerned by the combination of Michelle’s escalating

liver enzymes and white blood cell count, her “strange” multiple sclerosis diagnosis, and the

declining function of her liver. Dr. Jerkovic insisted that she be airlifted to Northwestern

Memorial Hospital because he believed she needed an immediate liver transplant and she had

a better chance of moving to the top of the transplant list there than at Riverside.

¶ 18 Dr. Ramani, the infectious disease specialist, included in the “impressions” in his report

the need for a Tzanck smear and a “herpes PCR” to rule out herpes. He also considered acute

hepatitis, noting that “liver function rates were normal 2 days ago [February 19]” and

suggesting such hepatitis could be “possibly related to medications and steroids.” The third

“recommendation” in Dr. Ramani’s report was “IV acyclovir to be discussed and decided

upon.” Neither he nor any other of the doctors who examined and treated Michelle at

Riverside diagnosed disseminated varicella zoster or recognized her rash as any form of

chicken pox.

¶ 19 (This is the end of the recitation of excluded factual evidence.)

¶ 20 On February 21, 2006, Michelle was transported to Chicago but was dead on arrival at

Northwestern Memorial Hospital. An autopsy determined the cause of death was systemic

failure caused by disseminated varicella zoster infection.

¶ 21 II. Procedural History

¶ 22 On July 19, 2007, Rita Steele, as special administrator of Michelle’s estate, filed suit

against Dr. Moran and his employer, Echo Management and Consulting, alleging the

wrongful death of her daughter due to medical malpractice and a survival action. At issue

was whether Dr. Moran breached the standard of care that he, as an emergency room

physician, owed to Michelle and, if so, whether that breach was a proximate cause of her

death.

¶ 23 If plaintiff has sustained her burden of proof on this issue, she also has the burden of

proving (1) current and potential damages to the members of Michelle’s family attributable

to her death (wrongful death action), and (2) damages sustained by Michelle and payable to

her estate for pain and suffering attributable to the breach (survival action).

¶ 24 Steele also sued Provena Hospitals, d/b/a St. Mary’s Hospital, alleging Dr. Moran was

its agent and it was, therefore, vicariously liable for Michelle’s death. At issue in this claim

is whether Provena held Dr. Moran out as its agent (actual agency) or whether Michelle or

someone lawfully acting as her agent reasonably relied on a reasonably held belief that he

was the hospital’s agent (apparent agency).

¶ 25 In preparation for trial, the parties filed disclosures pursuant to Illinois Supreme Court

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Rule 213 (eff. Jan. 1, 2007). Some of those disclosures were the focus of evidentiary

challenges during trial. Dr. Moran’s Rule 213(f)(3) disclosures indicated that he would testify

from the St. Mary’s hospital medical records, and any reasonable inferences therefrom, about

his care and treatment of Michelle on February 19, 2006, and any knowledge and

observations he had surrounding the occurrence of Michelle’s admission to St. Mary’s. Dr.

John Segreti, an infectious disease expert proffered by the defendants, included in his Rule

213(f)(3) disclosures that he would not be rendering an opinion on the standard of care of an

emergency room doctor. Steele’s Rule 213(f)(1) disclosures indicated that she would be

providing lay testimony about the facts and circumstances concerning the care and treatment

of Michelle at St. Mary’s on February 19, 2006, and her memory of the events and treatment

prior to Michelle’s death, including conversations with medical personnel and observations

she made at that time.

¶ 26 Before trial, the court issued the following rulings on specific motions in limine pertinent

to this appeal: (1) barring Steele from eliciting opinions outside those disclosed in her Rule

213 disclosures or expert depositions; (2) barring the defendants from calling subsequent

treating physicians and introducing evidence of subsequent treatment at Riverside Hospital

in Kankakee, specifically the fact that no doctor at Riverside diagnosed Michelle’s chicken

pox or disseminated varicella zoster infection; (3) barring the defendants from presenting

testimony from doctors who treated Michelle at a medical facility in Chicago about the

diminished quality of life of a person with multiple sclerosis; (4) barring testimony from Dr.

Moran as to why Michelle’s liver enzymes were high because such testimony was not

presented during his deposition; (5) permitting testimony about Michelle’s future plans to

go to community college; (6) barring the defendants from presenting a sole proximate cause

defense because Moran presented no evidence to support this theory; (7) permitting certain

of plaintiff’s lay witnesses to testify that Michelle’s rash “looked like chicken pox”; and (8)

barring the defendants from presenting testimony from Michelle’s grandmother that Steele

“gave up parental rights of Michelle Koenig from ages fourteen to eighteen.”

¶ 27 The case was tried to a jury. Dr. Moran was called by both sides. Kristen Bien,

Michelle’s friend; Jacqueline Boomsma, the emergency medical technician (EMT) who

transported Michelle to St. Mary’s; and Rita Steele all testified that Michelle had a rash that

“looked like chicken pox.” Steele testified as an occurrence witness to the events surrounding

Michelle’s treatment in the emergency room at St. Mary’s and was also allowed to testify on

the agency issue. She–along with Michelle’s father, Todd Koenig, and her half-sister, Jessica

Watts–provided evidence of their loss-of-society damages resulting from Michelle’s death.

Plaintiff called two experts–Dr. Fred Zar, an infectious disease specialist, and Dr. Robert

Mulliken, an emergency room physician–to testify to the nature and breach of Dr. Moran’s

standard of care.

¶ 28 Dr. Moran called as his experts Dr. John Ortinau, an emergency room doctor, who

testified that the standard of care was not breached, and Dr. John Segretti, an infectious

disease specialist, who was offered solely on the issue of proximate cause and who testified

that nothing Dr. Moran did or did not do on February 19 could have led to a different result.

¶ 29 Dr. Moran also made an offer of proof outside the presence of the jury presenting

evidence through live testimony and depositions of (1) Michelle’s subsequent treatment at

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Riverside on February 20 and 21 and (2) the fact that none of the several doctors who

evaluated and treated her had diagnosed either chicken pox or disseminated varicella zoster

infection. As part of this offer of proof, Drs. Zar and Mulliken (plaintiff’s experts) testified

that they reviewed Michelle’s February 20 and 21 records from Riverside and learned that

no doctor there had diagnosed her with chicken pox or disseminated varicella zoster. The

purpose of the offer of proof was to preserve for review the trial court’s refusal to allow this

evidence to be heard by the jury.

¶ 30 The jury rendered a verdict in favor of plaintiff and against all defendants in the amount

of $1,500,000.

¶ 31 Provena and Moran filed separate appeals which have been consolidated in this court.

Fifteen issues are raised by Moran and six by Provena. Any necessary additional facts will

be presented and discussed in our consideration of these issues.

¶ 32 ANALYSIS

¶ 33 I. Appeal of Dr. Moran, No. 3-11-0375

¶ 34 A. Evidentiary Issues Related to Alleged Medical Negligence

¶ 35 In general, evidence must be legally relevant to be admissible. People v. Kirchner, 194

Ill. 2d 502, 539 (2000). Evidence is relevant if it has a tendency to make the existence of any

fact that is of consequence to the determination of the action more or less probable than

without the evidence. Ford v. Grizzle, 398 Ill. App. 3d 639, 646 (2010). We review a trial

court’s ruling on matters of evidence for an abuse of discretion. Gunn v. Sobucki, 216 Ill. 2d

602, 609 (2005).

¶ 36 1. Lay testimony that rash “looked like chicken pox”

¶ 37 We consider first Dr. Moran’s challenge to the trial court’s decision to allow three lay

witnesses–Rita Steele, Kristen Bien, and Jacqueline Boomsma–to testify that Michelle’s rash

“looked like chicken pox.” He contends the testimony was tantamount to a medical

judgment, was unwarranted, and was unfairly prejudicial. He also challenges allowing

plaintiff’s counsel to comment on that testimony in a later examination, over his objection,

and in closing argument.

¶ 38 Steele argues that Dr. Moran did not properly preserve this issue for appellate review and

it is, therefore, forfeited.

¶ 39 For the reasons that follow, we find that the issue has not been forfeited and that the

decision to allow the testimony as framed was reversible error.

¶ 40 With regard to the forfeiture issue, a party may not rely on a court’s ruling on a motion

in limine to preserve an error for appellate review. Cunningham v. Millers General Insurance

Co., 227 Ill. App. 3d 201 (1992). Thus the party contesting the testimony must object the first

time the testimony is introduced. Cunningham, 227 Ill. App. 3d at 206. In the absence of a

proper objection, the matter is forfeited. Illinois State Toll Highway Authority v. Heritage

Standard Bank & Trust Co., 163 Ill. 2d 498, 502 (1994).

¶ 41 Here the record indicates that before Bien and Boomsma testified, Dr. Moran renewed

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his objection to any mention that Michelle’s rash looked like chicken pox. On the day that

Steele testified, the court stated that its prior rulings remained in effect concerning the

motions in limine and that if the parties felt it necessary “to step up and put it in the record

again, that [was] fine.” We understand the court’s statement to be a reiteration of its ruling

that it would allow that testimony in. On these facts, we find this issue has not been forfeited

for purposes of appellate review.

¶ 42 Similarly, Dr. Moran objected repeatedly to the use of the testimony of these witnesses

that the rash “looked like chicken pox” in the examination of one of his experts, Dr. Ortinau.

¶ 43 However, with regard to Dr. Moran’s complaint that plaintiff’s counsel expressly and

improperly characterized this testimony as a “diagnosis” of chicken pox during closing

argument, we find that no contemporaneous objection was made and that this claim has been

forfeited. We note that the trial court later attempted to cure the improper argument by

instruction to the jury.

¶ 44 Turning now to the merits of the issue which was preserved, we consider first the nature

of the testimony. Each of the three women was allowed to testify that the rash “looked like

chicken pox.” We believe this decision was error for three reasons.

¶ 45 First, we question the relevance of their testimony to any element of the negligence

claim. The conclusion of three witnesses, without medical training, that the rash “looked like

chicken pox” is irrelevant to a determination of the proper standard of care, Dr. Moran’s

possible breach of that standard, or whether any breach by Dr. Moran was the proximate

cause of Michelle’s death. While their contention that the rash “looked like chicken pox” has

little or no probative value, it does pose a substantial risk, just standing alone, of unfair

prejudice.

¶ 46 Second, defendant challenges the testimony as tantamount to a medical diagnosis;

plaintiff responds that it is merely a description of the rash. We believe defendant’s

characterization of the testimony to be more accurate.

¶ 47 A “description” of the rash would be, for example, it was flat or raised, pink or red,

blistery or solid, clustered or isolated, hot or cool to the touch, etc. Instead, each witness’s

attestation that it “looked like chicken pox” was, in essence, an assurance to the jurors that

(1) she knew what chicken pox rash looked like, and (2) she was able to conclusively

distinguish it, as indicative of chicken pox, as opposed to the myriad other rashes which can

appear on the human body. Such implicit assurances were clearly without basis with regard

to two of the witnesses in light of Bien’s admission that, other than having had chicken pox

as a child, she had never seen a rash like that one and Boomsma’s affidavit that she had no

training in diagnosing diseases.

¶ 48 We note that these witnesses were neither tendered nor qualified as experts by plaintiff;

they were lay witnesses. A lay witness may offer opinion testimony provided that it is helpful

to a clear understanding of her testimony or a determination of a fact at issue. Freeding-

Skokie Roll-Off Service, Inc. v. Hamilton, 108 Ill. 2d 217, 222-23 (1985) (citing Fed. R. Evid.

701(b)). The opinion testimony of a lay witness must also be rationally based on the

witness’s perception. Hopkinson v. Chicago Transit Authority, 211 Ill. App. 3d 825, 846

(1991). However, a lay witness may not offer testimony pertaining to a specific medical

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diagnosis unless he or she is properly qualified as an expert to give such testimony. See

Robinson v. Wieboldt Stores, Inc., 104 Ill. App. 3d 1021, 1026-27 (1982).

¶ 49 Because we find that the testimony is the functional equivalent of a medical diagnosis,

we conclude that the trial court erred in allowing the witnesses to frame their testimony in

this manner.

¶ 50 Third, in addition to the testimony itself, the record shows that plaintiff was allowed,

over multiple objections by defendant, to mischaracterize that description when examining

defendant’s expert, Dr. Ortinau. Plaintiff’s counsel finessed their testimony as a diagnosis

not only of chicken pox, but also “varicella zoster virus” and “disseminated varicella zoster

virus” (emphasis added) well before closing argument, as follows:

“Q. You recall Ms. Steele saying the rash looked like chicken pox, correct?

A. Yes.

Q. It turns out that Ms. Boomsma, Ms. Bien, and Ms. Steele are correct that, in fact,

Michelle did have a varicella zoster virus rash on February 19th, 2006. True?

[Defense counsel objected to this question, but the court overruled the objection.]

A. Um, based on the fact that we know what ultimately happened to Ms. Koenig, that

is a true statement. That’s correct.

Q. All three of them were correct in their description of the rash in terms of looking

like chickenpox, true?

A. Well, I don’t know if they’re correct in what they said about the rash. What is

correct is that this woman had disseminated varicella.” (Emphases added.)

¶ 51 In describing the rash in terms of the specific disease that is at issue in this case, the

testimony not only implied that it was chicken pox, it was transmuted by counsel into a

diagnosis of varicella zoster virus. The implicit suggestion that “if we, without any training

in medical diagnosis, could see that this was chicken pox, Dr. Moran was clearly deficient

when he could or did not” was made explicit when counsel asked Dr. Ortinau:

“Q. He [Dr. Moran], unlike the three lay people, failed to recognize that this was a

chickenpox rash caused by disseminated varicella zoster virus. Correct?

[Defense counsel again objected, but was overruled.]

A. Two lay people and a paramedic thought that this was a varicella zoster rash.

That’s correct.” (Emphases added.)

We find that the testimony was without probative value and was inherently and unfairly

prejudicial, that its prejudicial impact was enhanced by counsel’s misuse of it with another

witness, and that the court abused its discretion in both admitting the testimony and allowing

its mischaracterization over objection.

¶ 52 2. Barring of evidence of later treatment

¶ 53 Dr. Moran also asserts that the trial court erred in barring evidence, by both direct

testimony and through cross-examination of plaintiff’s experts, of Michelle’s later treatment

at Riverside Hospital.

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¶ 54 From February 9, when Michelle was first seen at Riverside and transported to CINN,

to February 21, when she died while being airlifted to Northwestern Memorial Hospital,

twelve days elapsed. During that brief time she was examined at CINN by neurological

specialists and diagnosed tentatively with either multiple sclerosis or lupus, and was released

on large doses of prednisone. Five days later, she presented at St. Mary’s Hospital

complaining of severe back pain which made it difficult to walk and which she suggested

might be a result of a lumbar puncture done in connection with her treatment at CINN. She

made no complaint related to the rash that Dr. Moran noted on her upper body. Tests ordered

by Dr. Moran showed her white blood cell count and liver enzymes were somewhat elevated.

He attempted, without success, to consult with her personal physician (see supra ¶ 8), but did

assertedly succeed in discussing her case with the neurological surgeon at CINN, who

informed him of her treatment plan and, among other things, that final results of Michelle’s

tests were still not available.

¶ 55 Plaintiff’s experts testified Dr. Moran breached the standard of care by (1) failing to

recognize Michelle was immunosuppressed, (2) failing to diagnose Michelle’s rash as

chicken pox, (3) failing to diagnose an extremely rare variant of chicken pox–disseminated

varicella zoster infection, and (4) failing to call in the appropriate experts for consultation.

¶ 56 In assessing whether Dr. Moran committed medical malpractice, it was the function of

the jury, as the trier of fact, to determine whether the plaintiff had proven all of the following

elements: (1) the proper standard of care against which the defendant physician’s conduct

is measured; (2) an unskilled or negligent failure to comply with that standard; and (3) a

resulting injury proximately caused by the physician’s want of skill or care. Sullivan v.

Edward Hospital, 209 Ill. 2d 100, 112 (2004).

¶ 57 Dr. Moran’s challenge to the exclusion of evidence of Michelle’s treatment on days two

and three of her illness (February 20 and 21) is stated as:

“Whether the trial court erred in barring evidence of decedent’s subsequent treatment

when such evidence is relevant and material to: the liability issue as to whether

defendant’s [sic] diagnosed disseminated varicella virus and pivotal to that issue is what

decedent’s rash looked like; what material experts relied on; and proof that the decedent

lived several days after discharge from defendant emergency room.” (Emphasis added.)

Because the question is not expressly limited to the determination of the proper standard of

care, but rather appears to sweep more broadly to cover breach of the standard of care and

proximate cause, we consider all three elements of the malpractice claim.

¶ 58 a. Proper standard of care

¶ 59 Generally, the standard of care applicable to Dr. Moran is whether he, as an emergency

room physician, used the skill, knowledge, and care appropriate to a reasonably careful

emergency room physician to treat Michelle Koenig at St. Mary’s Hospital on February 19,

2006. See generally Studt v. Sherman Health Systems, 2011 IL 108182, ¶¶ 33, 34; Loman v.

Freeman, 229 Ill. 2d 104, 119 (2008); Advincula v. United Blood Services, 176 Ill. 2d 1, 23

(1996). The medical experts–armed with knowledge of Michelle’s death, an autopsy report

finding disseminated varicella zoster virus to be her cause of death, and having been

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informed of her test results and that she had a raised vesicular rash–opined that the standard

required, more specifically, that Dr. Moran diagnose Michelle as immunosuppressed, her

rash as chicken pox, and her underlying condition as disseminated varicella zoster virus

requiring the administration of acyclovir. Defining the standard of care is generally entrusted

to medical professionals and it is, by definition, restricted to the time the defendant doctor

was responsible for the patient’s care. While expert opinion is extremely useful in defining

the standard of care, it remains the duty of the jury to consider all of the opinions and make

the final determination. Borowski v. Von Solbrig, 60 Ill. 2d 418, 423 (1975).

¶ 60 b. Breach of the standard of care

¶ 61 The determination of whether a doctor acted in compliance with the applicable standard

of care is limited, by definition, to the circumstances with which he was confronted at the

time the medical service was rendered. Thus, the focus of the inquiry is what Dr. Moran did

while Michelle was in his care based on what he knew, should have known, or was

reasonably able to determine while Michelle was in his care. One of the questions to be

addressed in response to the inquiry is whether he should have known that the rash was

chicken pox. Some evidence of the answer to that question is the testimony of the experts,

including Dr. Zar, who testified that the rash could only have been chicken pox.

¶ 62 None of the experts had actually seen the rash on Michelle, however. Dr. Moran was the

only medically trained person to see it and he did not diagnose it as chicken pox. As

previously discussed (supra ¶ 27), plaintiff attempted to exploit this lack of exactly

contemporaneous corroboration by presenting the lay witnesses’s conclusions that on the

very day of Dr. Moran’s treatment the rash “looked like chicken pox.”

¶ 63 The evidence of the subsequent appearance of the rash that Dr. Moran sought to present,

while clearly not speaking to exactly how the rash looked on February 19, was nonetheless

instructive on how the rash looked and whether it ever looked like chicken pox. It was,

therefore, legally relevant and potentially admissible. See People v. Kirchner, 194 Ill. 2d 502

(2000). Evidence is relevant if it has a tendency to make the existence of any fact that is of

consequence to the determination of the action more or less probable than without the

evidence. Ford v. Grizzle, 398 Ill. App. 3d 639, 646 (2010).

¶ 64 Whether Dr. Moran breached his standard of care by failing to recognize the rash as

chicken pox is certainly a fact of consequence to the determination of the action. The jury

should be able to consider all relevant evidence in resolving that issue. Experts opined from

the advantage of hindsight that Moran should have recognized the rash; the autopsy report

had conclusively determined that Michelle had chicken pox. The excluded evidence

represents a nearly contemporaneous presentation of the rash with the same failure of

doctors, including specialists plaintiff’s experts would presumably find appropriate, to

recognize chicken pox and the underlying disseminated varicella zoster infection and the

same failure to provide treatment with acyclovir. The reasons for the failure of other doctors

to diagnose chicken pox and underlying varicella zoster infection so close in time to Dr.

Moran’s treatment of Michelle is relevant and probative. Assigning the relative weight to be

given to the experts and the on-the-scene doctors is within the proper province of the jury.

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¶ 65 For these reasons we find that the trial court erred in excluding, as irrelevant to the

standard of care, evidence of what other doctors saw and concluded on February 20 and 21.

¶ 66 c. Proximate cause

¶ 67 When the jury, on remand, ascertains the correct standard of care and whether or not Dr.

Moran did, in fact, breach that standard, it must also determine whether any such breach was

the proximate cause of Michelle’s death. We do not see how that particular element of the

inquiry can be addressed and resolved without evidence of the course of her disease and

treatment between the time she came into Dr. Moran’s care and the time she died. Our belief

in the relevance of this evidence gains some support from the fact that the experts tendered

by both parties found it helpful, and perhaps necessary, to review the records and testimony

of Michelle’s symptoms and treatment on those two days to arrive at salient conclusions of

their own.

¶ 68 In barring this evidence altogether, we find the trial court deprived the jury of information

relevant to its determination of whether any breach of his standard of care by Dr. Moran was

a proximate cause of Michelle’s death. We find the trial court abused its discretion in this

regard resulting in reversible error entitling Dr. Moran to a new trial.

¶ 69 3. Allowing an infectious disease specialist to address standard of care

¶ 70 Dr. Moran next challenges the trial court’s decision to allow Dr. Zar, a doctor

specializing in internal medicine and infectious disease, to testify on the standard of care of

an emergency room physician.

¶ 71 In Sullivan v. Edward Hospital, 209 Ill. 2d 100 (2004), the supreme court reviewed its

earlier decisions on who may provide expert medical testimony on the standard of care. The

court noted that in Purtill v. Hess, 111 Ill. 2d 229 (1986), it had established two foundational

requirements that must be met to demonstrate an expert physician’s qualifications and

competency to testify. First, the physician must be a licensed member of the school of

medicine about which he proposes to testify. Second the expert witness must show that he

is familiar with the methods, procedures, and treatments ordinarily observed by other

physicians in either the defendant physician’s community or a similar community. Purtill,

111 Ill. 2d at 242-43. If the expert physician fails to satisfy either of these foundational

requirements, “the trial court must disallow the expert’s testimony.” Jones v. O’Young, 154

Ill. 2d 39, 44 (1992). Once these foundational 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. Purtill, 111 Ill. 2d at 243.

¶ 72 The evidence in this case disclosed that both Dr. Moran and Dr. Zar were licensed to

practice medicine and surgery, thus satisfying the first requirement. Further, Dr. Zar testified

that he took his residents to the emergency room as part of a combined residency program

to train doctors in internal medicine and emergency medicine, and that he works with

emergency room physicians on a regular basis. He thereby established his familiarity with

emergency room practice and satisfied the second requirement.

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¶ 73 Whether he was otherwise qualified to testify as an expert on the standard of care of an

emergency room physician was left to the trial court’s sound discretion. We review its

decision in that regard for an abuse of discretion.

¶ 74 We can fully understand Dr. Moran’s concerns, first, that a specialist in infectious disease

would likely be better equipped to recognize a rare infectious disease than a doctor who, by

the nature and necessities of his job, is more of a generalist, and, second, that a higher or

more exacting standard of care might be imposed upon him by such a specialist. While

another judge might have weighed this risk differently than did the trial court in this case, we

note that “[w]hether the expert is qualified to testify is not dependent on whether he is a

member of the same speciality or subspecialty as the defendant but, rather, whether the

allegations of negligence concern matters within his knowledge and observation.” Jones, 154

Ill. 2d at 43. Because of Dr. Zar’s qualifications in internal medicine and his experience with

emergency room physicians and residents, he could offer competent, relevant and helpful

testimony on the matter of Michelle presenting in the St. Mary’s emergency room with a

form of chicken pox. Consequently, we cannot say that no reasonable person would take the

view of the trial court and thus we find that its decision was not an abuse of discretion. A

reasonable person could also conclude that Dr. Zar’s limited experience in emergency rooms

goes to the weight rather than the admissibility of his opinions.

¶ 75 4. Plaintiff’s use of two standard of care experts

¶ 76 Dr. Moran next contends that the trial court erred when it denied his motion to bar

Mulliken’s testimony as cumulative. Steele answers that the number of expert witness to

testify for each party is a matter of the trial court’s discretion, and in this case, the court did

not abuse its discretion. We agree.

¶ 77 A trial court has discretion to exclude cumulative evidence, and a ruling in this regard

will not be reversed unless the trial court abuses its discretion. Kozasa v. Guardian Electric

Manufacturing Co., 99 Ill. App. 3d 669, 678 (1981). Within this discretion is a trial court’s

ability to limit the number of expert witnesses a party may present. Dillon v. Evanston

Hospital, 199 Ill. 2d 483, 494-96 (2002).

¶ 78 Here, the record does not indicate that the trial court abused its discretion when it

permitted Steele to present expert testimony by both Drs. Zar and Mulliken. As Steele notes,

Dr. Zar specialized in internal medicine and infectious diseases and had relevant emergency

room experience, and Dr. Mulliken specialized in emergency care. This case centered on

emergency treatment for a patient who had a variation of the chicken pox virus; thus, it was

relevant to Steele’s case to present expert testimony from a witness who had emergency

room experience and specialized in infectious diseases and another who specialized in

emergency care. The testimony of Drs. Zar and Mulliken was not necessarily cumulative, and

the trial court did not abuse its discretion when it denied Dr. Moran’s motion to bar Dr.

Mulliken’s testimony.

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¶ 79 B. Evidentiary Issues Relevant to Wrongful Death Action

¶ 80 1. General law about wrongful death

¶ 81 The first section of the Wrongful Death Act recognizes, in pertinent part, that:

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and

the act, neglect or default is such as would, if death had not ensued, have entitled the

party injured to maintain an action and recover damages in respect thereof, then and in

every such case the person who or company or corporation which would have been liable

if death had not ensued, shall be liable to an action for damages ***.” 740 ILCS 180/1

(West 2012).

This section requires Steele to prove that Michelle would have prevailed in an action for

negligent medical treatment asserted against Dr. Moran.

¶ 82 The scope of the pecuniary injuries and the potential beneficiaries of damages are defined

in the pertinent part of section 2:

“Every such action shall be brought by and in the names of the personal representatives

of such deceased person, and *** the amount recovered in every such action shall be for

the exclusive benefit of the surviving spouse and next of kin of such deceased person. In

every such action the jury may give such damages as they shall deem a fair and just

compensation with reference to the pecuniary injuries resulting from such death,

including damages for grief, sorrow, and mental suffering, to the surviving spouse and

next of kin of such deceased person.” 740 ILCS 180/2 (West 2012).

See also Elliot v. Willis, 92 Ill. 2d 530, 540 (1982). In the instant case, Michelle left no

spouse or children and the potential beneficiaries of the wrongful death action were her

mother, Rita Steele; her father, Todd Koenig; and her half-sister, Jessica Watts.

¶ 83 2. Wrongful death issues raised on appeal

¶ 84 Dr. Moran argues that the trial court erred in: (1) refusing to allow evidence or instruction

about plaintiff’s health and the effects on her quality of life since she had multiple sclerosis

(issue 5); (2) barring defendants from eliciting testimony that the decedent’s mother gave up

parental rights for four years when the sole issue of damages is loss of society (issue 7); and

(3) permitting unfounded hearsay conversations between the decedent and her father about

her alleged plans to go to community college when there was no lost wage claim (issue 8).

¶ 85 First, on the issue of Michelle’s health, Dr. Moran asserts that the trial court erred when

it did not allow testimony from physicians who treated Michelle at the Chicago Institute

concerning the diminished quality of life of a person with multiple sclerosis, and also erred

when it did not instruct the jury to consider Michelle’s health in its determination of

damages. Steele argues that Dr. Moran did not disclose an opinion concerning Michelle’s

alleged diminished quality of life or life expectancy during discovery, and in the absence of

such evidence, the court did not abuse its discretion.

¶ 86 The trial court has wide discretion in the admission or exclusion of evidence. Martin v.

Sally, 341 Ill. App. 3d 308, 314 (2003). Here, the trial court did not abuse its discretion when

it refused to permit Dr. Moran to present testimony about Michelle’s alleged diminished

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quality of life or life expectancy. The record does not indicate that any such testimony was

disclosed prior to trial, either through discovery submissions or deposition testimony, and

thus, the trial court cannot be found to have abused its discretion in excluding the medical

opinion evidence. Nor is there any indication in the record that Dr. Moran made an offer of

proof as to the contents of this evidence or what it would establish. See McMahon v. Coronet

Insurance Co., 6 Ill. App. 3d 704, 711-12 (1972) (appellate court concluded that a party may

not raise an issue concerning the trial court’s exclusion of certain expert testimony because

the party did not make an offer of proof showing the actual substance of the testimony). We

find that Dr. Moran has therefore forfeited this issue.

¶ 87 For the same reasons, the trial court did not err in refusing to instruct the jury to consider

Michelle’s health in assessing damages.

¶ 88 Second, regarding Steele’s alleged relinquishment of her parental rights to Michelle, our

review of the record reveals no factual or legal basis for any contention that she or a court

took action depriving her of parental rights. See 750 ILCS 50/8 (West 2006). There is

evidence in the record that Steele and Todd agreed Michelle should reside in Florida with her

father to avoid her continued association with the “wrong crowd of kids.” We note Michelle

lived five years after the end of the separation and was apparently living with her mother at

the time of her death. The decision of what to do with this contradictory proffered testimony

rests in the discretion of the trial court and we cannot say, on this record, that allowing the

warring contentions to go to the jury–the finder of fact–was an abuse of discretion.

¶ 89 Third, turning to Dr. Moran’s complaint concerning any discussions of Michelle’s intent

to enroll in community college, we again find no error on the part of the trial court. Steele

contends that this testimony was only relevant to Michelle’s relationship with her mother and

father and to an understanding of Michelle’s life at the time of her death. The testimony

indicated that Michelle had personal aspirations and that she shared her goals and dreams

with her parents. We note that plaintiff did not seek lost wages or any other damages related

to participation in or completion of any degree granting program. Nor did either party present

evidence that Michelle applied to or had been accepted by any postsecondary institution. We

find no evidence in the record that the testimony was offered for or relevant to anything other

than Michelle’s relationship with her parents, and therefore, its admission was not an abuse

of discretion.

¶ 90 C. Evidentiary Issues Related to Discovery

¶ 91 Dr. Moran raises the following specific issues pertaining to alleged violations of Illinois

Supreme Court Rule 213 (eff. Jan. 1, 2007): (1) whether the trial court erred in barring

defendant from testifying that the decedent’s liver enzymes were high since such testimony

is a logical corollary to defendant’s disclosed opinion that he would testify as to his findings

(issue 6); (2) whether the trial court erred in allowing undisclosed expert testimony as to why

the alleged chicken pox did not itch (issue 9); and (3) whether the trial court erred in

allowing plaintiff to improperly question defendant’s proximate cause expert about standard

of care opinions outside the scope of direct examination and Rule 213 disclosures (issue 10).

¶ 92 “The purpose of discovery rules, governing the ‘timely disclosure of expert witnesses,

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their opinions, and the bases for those opinions[,] is to avoid surprise and to discourage

strategic gamesmanship.’ ” Spaetzel v. Dillon, 393 Ill. App. 3d 806, 812 (2009) (quoting

Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1032 (2003)). Rule 213 disclosure

requirements are mandatory and command strict compliance from the parties. Sullivan v.

Edward Hospital, 209 Ill. 2d 100, 109 (2004).

¶ 93 Faced with a challenge that testimony was not disclosed or exceeds the scope of Rule 213

disclosure, a trial court’s ruling on the admission of evidence is an exercise of its discretion

and will not be reversed absent an abuse of that discretion. Sullivan, 209 Ill. 2d at 109. An

abuse of discretion occurs when no reasonable person would take the view of the trial court.

Foley v. Fletcher, 361 Ill. App. 3d 39, 46 (2005).

¶ 94 The current version of Rule 213 (Ill. S. Ct. R. 213 (eff. Jan. 1, 2007)) creates three classes

of opinion witnesses; lay witnesses are only required, in Rule 213(f)(1), to disclose the

subject of the their testimony rather than the detailed disclosure previously compelled by

section Rule 213(g). The Committee Comments of March 28, 2002, explain that “applying

this detailed-disclosure requirement to lay witnesses creates a serious burden without

corresponding benefit to the opposing party.”3 Ill. S. Ct. R. 213, Committee Comments (Mar.

28, 2002).

¶ 95 Independent expert witnesses have intermediate disclosure obligations set out in Rule

213(f)(2). None of the witnesses in the instant case fall into this category.

¶ 96 Because the third class of witnesses, the controlled experts described in Rule 213(f)(3),

can be counted on for full cooperation, “the amended rule requires the party to provide all

of the details required by the former rule.” Id. Thus, “the requirement that the party identify

the ‘subject matter’ of the testimony means that the party must set forth the gist of the

testimony on each topic the witness will address, as opposed to setting forth the topics

alone.” Id. The controlled expert witnesses include Drs. Moran, Zar, Mulliken, Ortinau and

Segreti. We consider Dr. Moran’s discovery challenges in the context of this very brief

overview of the disclosure requirements.

¶ 97 First, Dr. Moran contends that the trial court erred in granting Steele’s motion in limine

barring him from testifying as to why Michelle’s liver enzymes were high because such

testimony was part of his findings during his care and treatment of Michelle. Steele asserts

that the court properly barred this testimony because Dr. Moran did not disclose his reason

as to why Michelle’s liver enzymes were high prior to trial.

¶ 98 An expert’s opinion testimony at trial is limited to “[t]he information disclosed in answer

to a Rule 213(f) interrogatory, or in a discovery deposition.” Ill. S. Ct. R. 213(g) (eff. Jan. 1,

2007). While a witness may elaborate on his disclosed opinion as long as it is a logical

corollary to the opinion, and not a new reason for it, “[t]he testimony at trial must be

encompassed by the original opinion.” Foley, 361 Ill. App. 3d at 47 (court affirmed trial

court’s determination to permit expert testimony concerning the standard of care during

childbirth because the expert witness’ disclosure referred to the prenatal period in general,

3

Given this change, the disclosures of Rita Steele related to agency that are challenged by

Provena were compliant with the amended rule.

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and not only the time before labor).

¶ 99 Here, the record indicates that during Dr. Moran’s deposition, he stated that he did not

have an opinion as to why Michelle’s liver enzymes were elevated on February 19. Likewise,

at trial Dr. Moran testified that he had no opinion on the day he treated her as to the cause

of Michelle’s elevated liver enzymes. If he developed such an opinion after submitting his

Rule 213 disclosures and giving his deposition, and prior to trial, he had a duty under Rule

213(i) to supplement his answers. We find no evidence in the record that he did so. Overall,

this testimony cannot be a natural corollary of any disclosed opinion when he twice expressly

denied having such an opinion. The trial court did not abuse its discretion in granting Steele’s

motion in limine barring this testimony.

¶ 100 Dr. Moran next contends that the trial court abused its discretion when it permitted Steele

to cross-examine Dr. Segreti concerning the standard of care of an emergency room

physician because he was only offered and qualified as an expert on proximate cause and his

Rule 213 disclosures were limited to causation. On direct examination, Dr. Segreti was only

asked for causation opinions. Steele counters that Dr. Segreti explicitly testified on cross-

examination that he had no opinion as to the standard of care of an emergency room

physician.

¶ 101 Initially we note that the issue as framed objects to the questions being allowed, not to

the answers that were or were not given. That Dr. Segreti denied having an opinion on the

standard of care is not responsive to the challenge on appeal.

¶ 102 This issue calls into question the parameters of Rule 213(g), which provides relative to

Rule 213(f) opinion witnesses, in pertinent part:

“g. Limitation on Testimony and Freedom to Cross-Examine. ***

Without making disclosure under this rule, however, a cross examining party can

elicit information, including opinions, from the witness.” Ill. S. Ct. R. 213(g) (eff. Jan.

1, 2007).

The meaning of the quoted sentence has been liberally interpreted. Stapleton v. Moore, 403

Ill. App. 3d 147, 160 (2010) (Rule 213 specifically allows the eliciting of even new,

previously undisclosed opinions on cross-examination.); Jackson v. Reid, 402 Ill. App. 3d

215, 234 (2010) (the scope of disclosure required by Rule 213(f)(3) does not limit or restrict

the scope of cross-examination when testing the expert’s opinion testimony); Skubak v.

Lutheran General Health Care Systems, 339 Ill. App. 3d 30, 32 (2003) (Rule 213’s

disclosure requirements do not apply to cross-examination of an opposing party’s opinion

witness); Maffett v. Bliss, 329 Ill. App. 3d 562, 577 (2002) (none of Rule 213’s disclosure

requirements applies to cross-examining an opposing party’s opinion witness). However, we

have been unable to find a case that presents the situation with which we are confronted. We

find, for the following reasons, that Rule 213(g) does not authorize the cross-examination

challenged here.

¶ 103 As we have previously discussed in paragraph 72, standard of care opinions can only be

rendered by doctors who meet two foundational requirements. Because Dr. Segreti is

licensed in the same school of medicine as Dr. Moran, he clearly satisfies the first; there was,

however, no showing that he was sufficiently knowledgeable of emergency room procedures

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to satisfy the second. Absent such qualifications, it was improper, even considering Rule

213(g), to allow him to be questioned on the standard of care.

¶ 104 Moreover, seeking standard of care opinions from Dr. Segreti plainly exceeded the scope

of direct examination and was not a logical expansion of any questions he had been asked

or answers he had given. We do not believe that the rule is intended to change fundamental

and long-standing procedural, as opposed to disclosure, restrictions on cross-examination.

¶ 105 Finally, the purpose of the discovery rules is to avoid surprise and to discourage strategic

gamesmanship. Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1032 (2003).

Plaintiff’s attorney admitted that the goal of his cross-examination of Dr. Segreti was just

that, saying in his brief:

“Plaintiff’s counsel intended to suggest that Segreti conveniently had no such opinions

not because he could not offer standard of care opinions about emergency room doctors,

but rather because they would have cut against Dr. Moran’s position. [Citation.] After

a lengthy argument [citation], counsel asked Segreti whether he had offered standard of

care opinions in similar cases, but he could not recall.”

It is this use of improper questioning to negatively influence the jury that Dr. Moran contends

was error. The trial court erred in allowing this cross-examination over objection.

¶ 106 Finally, Dr. Moran contends that the trial court erred when it permitted Dr. Zar to testify

that Michelle’s chicken pox did not itch because he had not presented this testimony in his

Rule 213 disclosures or in his deposition. Steele contends that the topic of prednisone was

explored during Dr. Zar’s deposition, and thus, his testimony that its ingestion was the reason

why the rash did not itch should not have taken them by surprise. We do not believe that this

rationale is consistent with the disclosure requirements of Rule 213(f)(3) that we have

previously discussed.

¶ 107 However, Steele also asserts that any error was harmless because Dr. Moran had already

recognized in his testimony that prednisone may suppress itching. Where testimony is

undisclosed pursuant to Rule 213, but is cumulative of other testimony, the opposing party

is not prejudiced by its admission and a new trial is not warranted. Bauer v. Memorial

Hospital, 377 Ill. App. 3d 895, 914 (2007). In this case, even if the court erred in permitting

Dr. Zar to testify that Michelle’s chicken pox did not itch because of her use of prednisone,

the error was of no consequence.

¶ 108 D. Disallowance of Dr. Moran’s Sole Proximate Cause Defense

¶ 109 Dr. Moran contends that the trial court erred when it granted Steele’s motion in limine

preventing him from presenting evidence that Michelle’s subsequent treatment at Riverside

was the sole proximate cause of her death. Because we have ruled on the admissibility of

evidence of subsequent treatment at Riverside Hospital and have remanded for a new trial,

we decline to further address this issue.

¶ 110 We also decline to address, because of the decision to grant a new trial, alleged errors in

the jury instructions, cumulative errors, denial of the motions for directed verdict, manifest

weight of the evidence, and remittitur of the damages award.

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¶ 111 II. Appeal of Provena Hospitals, No. 3-11-0374

¶ 112 When Michelle and her mother arrived at St. Mary’s Hospital on February 19, Michelle

was given a consent form for her signature. Steele took the form, printed Michelle’s name

and then instructed her to sign it. Michelle signed the consent and it was witnessed on behalf

of the hospital.

¶ 113 The form provides in pertinent part:

“Consent to and Conditions for Treatment

The terms and conditions that apply to the care, treatment, and other services

provided by or through Provena Health, or at any of Provena Health’s facilities, are

set forth below. Please read these terms and conditions very carefully.

CONSENT TO TREATMENT

***

I understand that the practice of medicine is not an exact science. I acknowledge that

no guarantees have been made, or can be made, regarding any care, treatment, or other

related services that may be provided by or through Provena Health, or at any of Provena

Health’s facilities. I acknowledge and understand that most physicians who provide

physician services at Provena Health are not employees or agents of Provena Health,

but instead are independent medical practitioners and independent contractors. I

understand that each of these medical practitioners exercises his or her own,

independent medical judgment and is solely responsible for the care, treatment, and

services that they order, request, direct, or provide. I acknowledge that these

practitioners are not subject to the supervision or control of Provena Health and that the

employment or agency status of physicians who treat me is not relevant to my selection

of Provena Health for my care. I also understand that I will receive, and am solely

responsible for payment of, a separate bill from each of these independent practitioners,

or groups of practitioners, for care, treatment, or services provided.

***

ACCEPTANCE AND SIGNATURE

I represent that I, as either the person identified above or such person’s legal

representative, have read and understand, and am duly authorized to accept and execute,

these terms and conditions. Any questions that I’ve had have been satisfactorily

answered. I hereby accept and agree to be bound by all of the above terms and conditions

and I agree that a copy of this document may be used in the place of the original in

enforcing any rights hereunder.” (Emphasis added.)

The document is signed by Michelle Koenig, witnessed by Josephine Johnson and dated.

There are two lines below the signatures for a representative to explain why the patient is

unable to sign. Nothing was written on those lines.

¶ 114 There is no evidence that either Michelle or her mother read the consent form, asked any

questions or had knowledge of its contents. Indeed, Steele affirmatively asserted that neither

she nor Michelle read the consent and, because they did not, it was not binding on them.

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Provena responds that long-standing Illinois law clearly holds that a competent adult who

signs a document is deemed to have read it and is bound by its terms. Provena also argues

that the consent form on its face defeats two elements–holding out and reliance–of the three

plaintiff must prove to establish the apparent agency of Dr. Moran.

¶ 115 In order to hold a hospital vicariously liable for the acts of an independent contractor, the

plaintiff must plead and prove that he or she acted as the hospital’s apparent agent. York v.

Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 183 (2006). The supreme

court has stated:

“[U]nder the doctrine of apparent authority, a hospital can be held vicariously liable for

the negligent acts of a physician providing care at the hospital, regardless of whether the

physician is an independent contractor, unless the patient knows, or should have known,

that the physician is an independent contractor. The elements of the action [are] as

follows:

‘For a hospital to be liable under the doctrine of apparent authority, a plaintiff must

show that: (1) the hospital, or its agent, acted in a manner that would lead a

reasonable person to conclude that the individual who was alleged to be negligent

was an employee or agent of the hospital; (2) where the acts of the agent create the

appearance of authority, the plaintiff must also prove that the hospital had knowledge

of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of

the hospital or its agent, consistent with ordinary care and prudence.’ [Citation.]”

Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 524-25 (1993).

¶ 116 The supreme court explained that when a patient is unaware that the treatment provider

is not an employee or agent of the hospital, the patient should still have the right to look to

the hospital for financial recovery in an instance involving negligent emergency room care.

Thus, “ ‘[t]he fact that, unbeknownst to the patient, the physician was an independent

contractor should not prohibit a patient from seeking compensation from the hospital which

offers the emergency room care.’ ” Gilbert, 156 Ill. 2d at 522 (quoting Pamperin v. Trinity

Memorial Hospital, 423 N.W.2d 848, 855 (Wis. 1988)).

¶ 117 In York, the supreme court emphasized the complexity of the issues presented in a case

such as this one, stating:

“In Gilbert, this court recognized that the relationship between a patient and health-care

providers, both physicians and hospitals, presents a matrix of unique interactions that

finds no ready parallel to other relationships.” York, 222 Ill. 2d at 192.

Because of the variety of these relationships and the efforts of the players to either limit their

exposure to liability or maximize their potential for recovery from the most or the deepest

pockets, a determination of whether the doctrine of apparent agency renders a hospital

vicariously liable for the malpractice of an independent contractor appears to demand a fact-

specific inquiry.

¶ 118 In the instant case, Provena argues that the consent form signed by Michelle is dispositive

of this appeal because it provides legally binding evidence that (1) Michelle was on notice

that it was likely Dr. Moran was an independent contractor and not an employee of the

hospital (“most physicians *** are not employees”), thereby defeating the element of

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“holding out,” and (2) it was of no consequence to her whether any doctors who treated her

were employees of the hospital or independent contractors, thereby defeating the element of

reliance. Provena contends that the consent form requires judgment in its favor and asks us

to find that the trial court erred in denying its motion for judgment notwithstanding the

verdict (judgment n.o.v.) and denying it a new trial.

¶ 119 In addressing those issues, we consider whether Michelle’s failure to read the consent

form that she signed avoids its legal effect; whether the court erred in finding Steele’s

reliance rather than Michelle’s was controlling, and in allowing her attorney to make such

an argument in closing, and/or in so instructing the jury; and whether the consent form

defeats one or more elements of apparent authority.

¶ 120 A. Failure to Read the Consent Form

¶ 121 We look first at whether Michelle’s signature on the consent form binds her to

knowledge of its contents even though she did not read it. Illinois law on this question is

long-standing and consistent. The supreme court held in Black v. Wabash, St. Louis & Pacific

Ry. Co., 111 Ill. 351, 358 (1884), that a competent adult is charged with knowledge of and

assent to a document the adult signs and that ignorance of its contents does not avoid its

effect. That principle has been consistently reiterated by the supreme court and by the

appellate court. See, for example, recent decisions in Melena v. Anheuser-Busch, Inc., 219

Ill. 2d 135, 150 (2006); All American Roofing, Inc. v. Zurich American Insurance Co., 404

Ill. App. 3d 438, 447-49 (2010). Thus, the terms of Provena’s consent form and Michelle’s

assent to them are not negated by her failure to read the document.

¶ 122 B. Legal Effect of the Executed Consent Form

¶ 123 1. Rita Steele’s observations and reliance

¶ 124 We next consider whether there is evidence in the record to support the trial court’s

finding that it is Rita Steele’s observations and reliance that are controlling, rather than

Michelle’s assent to the terms of the consent form. We find none.

¶ 125 Michelle was 20 years old and, therefore, an adult when she arrived at St. Mary’s on

February 19. She was conscious upon arrival at the hospital and was able to sign the consent

form when directed by her mother to do so. There was no evidence she had been unconscious

in the ambulance. Although she was in pain, she was able to discuss her symptoms and

medical history and to opine that the pain might be the result of an earlier lumbar puncture.

After receiving medication, she was able to walk around and use the bathroom. We find no

evidence from which to conclude that she was unable to understand or assent to the terms in

the consent form.

¶ 126 Steele did not sign the consent form for Michelle or indicate in the space provided on the

form that Michelle was unable to consent or that there was any reason why Michelle could

not sign it. Moreover, Steele provided no power of attorney or other legal instrument to

establish herself as Michelle’s legal representative or assert any other legally cognizable basis

for recognizing her right to act or otherwise stand in her daughter’s stead.

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¶ 127 We find Steele’s claim that Monti v. Silver Cross Hospital, 262 Ill. App. 3d 503 (1994),

and Nosbaum v. Martini, 312 Ill. App. 3d 108 (2000), validate the substitution of her actual

or constructive knowledge for Michelle’s consent to lack merit. In Monti, the patient was

unconscious and unable to act for herself but proved that others responsible for her care,

including her husband, relied on the hospital to provide complete emergency care for her.

Monti, 262 Ill. App. 3d at 507-08. In Nosbaum, the patient was a child and the choice was

made by her biological father. Nosbaum, 312 Ill. App. 3d at 122. Here, Michelle was a

conscious and lucid adult and was not acting at the direction of any person with authority to

act or decide on her behalf.

¶ 128 York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147 (2006), on which

plaintiff also relies, is factually inapposite. Plaintiff, Dr. James York, was alive and he

testified that he relied on his son, Dr. Jeff York, to select the anesthesiologist for his surgery.

In addition, the consent form signed by the York plaintiff was vastly different from that

signed by Michelle Koenig, in that “the treatment consent form nowhere stated that plaintiff

would be treated by independent-contractor physicians.” York, 222 Ill. 2d at 197. The court

went on to quote excerpts from the consent that could “reasonably be interpreted as allowing

Rush to select anesthesiologists.” (Internal quotation marks omitted.) York, 222 Ill. 2d at 197.

¶ 129 Because we find no legal basis for supplanting Michelle’s acknowledgments and

understandings with Steele’s beliefs, we hold that the trial court erred in its contrary finding

and in permitting plaintiff’s counsel to argue to the jury that the consent form could be

disregarded and in instructing the jury that plaintiff only had to prove what Steele, and not

Michelle, knew or should have known about Moran’s relationship with the hospital.

¶ 130 2. Binding nature of the consent form Michelle signed

¶ 131 There is no evidence in the record showing that Michelle made any observations or

statements relative to Dr. Moran’s relationship with Provena while at St. Mary’s. Nor,

because of her death, could she provide such evidence on retrial. We therefore find that the

executed consent form is the sole legally cognizable determinant in this case of whether

plaintiff has proven apparent authority so as to render Provena vicariously liable for Moran’s

alleged medical negligence. This court has held that such consents are “almost conclusive”

in determining whether a hospital should be held liable for the medical negligence of an

independent contractor. Thede v. Kapsas, 386 Ill. App. 3d 396, 401 (2008). The foregoing

findings are sufficient to entitle Provena to a new trial.

¶ 132 3. Judgment notwithstanding the verdict

¶ 133 But Provena also seeks a judgment n.o.v., claiming that the consent form signed by

Michelle conclusively establishes (1) that Provena did not hold out Dr. Moran as its apparent

agent and (2) that Michelle either knew there was no employee relationship between Provena

and Dr. Moran or it did not matter to her whether such a relationship existed, thereby

disclaiming any reliance on Provena to provide her care.

¶ 134 A trial court should grant a motion for judgment notwithstanding the verdict only in those

limited cases where all of the evidence and the inferences from the evidence, when viewed

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in the light most favorable to the nonmovant, so overwhelmingly favors the movant that no

contrary verdict based on that evidence could ever stand. Maple v. Gustafson, 151 Ill. 2d 445

(1992). We review a trial court’s determination on a motion for judgment n.o.v. de novo.

Thornton v. Garcini, 382 Ill. App. 3d 813 (2008). In undertaking its de novo review, an

appellate court “has no right to enter a judgment n.o.v. if there is any evidence, together with

reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or

where the assessment of credibility of the witnesses or the determination regarding

conflicting evidence is decisive to the outcome.” Maple, 151 Ill. 2d at 454.

¶ 135 The elements necessary to prove apparent agency in a medical malpractice action as

defined in Gilbert have been set out in paragraph 116.

¶ 136 Provena does not contest whether Steele met the second apparent authority factor.

Therefore we consider only whether, when we view the evidence in the light most favorable

to Steele, it shows that she satisfied the first (“holding out”) and third (reliance) elements of

her apparent agency claim.

¶ 137 a. “Holding out” of Dr. Moran as an employee

¶ 138 Regarding “holding out,” if a patient has actual or constructive knowledge that the doctor

is an independent contractor, the hospital is not vicariously liable. The hospital prevails on

this element if “the patient is in some manner put on notice of the independent status of the

professionals with whom he might be expected to come into contact.” (Internal quotation

marks omitted.) York, 222 Ill. 2d at 182. The consent form Michelle signed advised that

“ ‘most physicians who provide physician services at Provena Health are not employees or

agents of Provena Health, but instead are independent medical practitioners and independent

contractors.’ ” (Emphasis omitted.) Supra ¶ 113. Unlike the situation in Churkey v. Rustia,

329 Ill. App. 3d 239 (2002), where the form also did not say that all of the providers were

independent contractors, the Churkey consent did link the independent providers with

practice areas. Churkey, 329 Ill. App. 3d at 244. Provena’s consent did not.

¶ 139 We acknowledge Provena’s argument that York’s phrase “in some manner put on notice

of the independent status of the professionals with whom she might be expected to come into

contact” (emphasis added and internal quotation marks omitted) (York, 222 Ill. 2d at 182)

suggests some flexibility in the test. However, given the very high standard for entry of a

judgment n.o.v., we find that the consent does not convincingly put plaintiff on notice that

Dr. Moran is an independent contractor and thereby adequately defeat the “holding out”

factor.

¶ 140 b. Reliance on employee relationship

¶ 141 Turning to the reliance factor, we find that the statement, “I acknowledge *** that the

employment or agency status of physicians who treat me is not relevant to my selection of

Provena Health for my care,” in the consent form constitutes a clear disclaimer of Michelle’s

reliance on the hospital for her medical care. We believe that this statement gains still more

weight when taken in conjunction with the additional acknowledgments that “most” of the

providers are independent contractors who function and bill for their services independently

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of the hospital, and that “any questions that I’ve had have been satisfactorily answered,”

constitute definitive indicators that Michelle was not relying on Provena or, vicariously, on

the employee status of any of her treaters in seeking emergency care. We, therefore, find that

plaintiff failed to sustain her burden of proving Michelle’s reliance on Provena and that a

judgment n.o.v. should have been granted by the trial court.

¶ 142 CONCLUSION

¶ 143 For all of the foregoing reasons, the verdict in favor of plaintiff is reversed, judgment not

withstanding the verdict is entered for Provena, and the matter is remanded for a new trial

on plaintiff’s claims against Dr. Moran.

¶ 144 No. 3-11-0374, judgment notwithstanding the verdict entered.

¶ 145 No. 3-11-0375, reversed and remanded.

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