Hubbard v. Sherman Hospital

JUSTICE BOWMAN, dissenting:

I respectfully dissent. The majority holds that the trial court did not abuse its discretion by barring portions of Dr. Malachinski’s testimony and relies heavily on Northern Trust Co. v. Upjohn Co., 213 Ill. App. 3d 390 (1991). However, the evidence in Northern Trust is factually distinct from this case. In Northern Trust, the expert never worked in an obstetrical or gynecological wárd and never performed the medical procedure at issue. Northern Trust, 213 Ill. App. 3d at 406 . In addition, he was not familiar with the method used to perform the medical procedure. Northern Trust, 213 Ill. App. 3d at 406 . Thus, the court found that he was not competent to testify as an expert witness. Northern Trust, 213 Ill. App. 3d at 407 .

In contrast, this case involves testimony regarding an area of general diagnosis — appendicitis. "A court may take judicial notice of matters of common knowledge ***.” Harris Trust & Savings Bank v. American National Bank & Trust Co., 230 Ill. App. 3d 591, 597 (1992). It is well established that appendicitis is a common medical condition familiar to all doctors. In fact, a reasonable person could find that a doctor who is not familiar with appendicitis is not qualified to be a doctor.

In this case, the evidence illustrates that Dr. Malachinski was familiar with the standard of care and system of diagnosis and treatment used by emergency room physicians. Dr. Malachinski testified that he was familiar with the standard of care used by emergency room physicians when treating patients with appendicitis. During the course of his practice, Dr. Malachinski treated patients who suffered from appendicitis and who had originally been attended to in the emergency room. Moreover, Dr. Malachinski communicated with emergency room physicians regarding the patients he treated. While serving as an intern, Dr. Malachinski also gained emergency room experience by examining patients and diagnosing and prescribing treatment.

The evidence also establishes that Dr. Malachinski was qualified to testify regarding the standard of care Dr. Michelotti utilized when scheduling diagnostic tests and performing the appendectomy procedure. An expert is not required to specialize in the area of the defendant’s expertise or specialty. Jones v. O’Young, 154 Ill. 2d 39, 43 (1992). Thus, Dr. Malachinski was not required to be an expert in surgery. During the course of his medical school training, Dr. Malachinski learned the procedures for proper care and treatment of appendicitis. Dr. Malachinski also served as a professor of medicine and instructed his students on the proper care and treatment of patients who suffered from appendicitis. Not only did Dr. Malachinski receive sufficient training, but he also assisted in appendectomies and treated many patients who had appendicitis.

Accordingly, I would hold that the trial court erred in barring the testimony of Dr. Malachinski regarding the standard of care used by both the emergency room physicians and Dr. Michelotti. By barring the testimony, the trial court deprived the jury of performing its fact-finding function and allowed it to render a verdict in favor of defendants. Consequently, plaintiff is entitled to a new trial against Sherman Hospital and Dr. Michelotti.