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Morse v. Hardinger

JANUARY 22, 1976.




APPEAL from the Circuit Court of Coles County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding.


Plaintiff-appellant Jenona Morse sued Dr. John D. Hardinger in a medical negligence action to recover damages for a loss of vision she suffered after taking the drug Aralen. The jury returned a verdict in favor of the defendants and plaintiff appeals, citing errors in the trial court's handling of evidence and in the instructions to the jury.

Dr. Hardinger had been family physician for the Morse family since at least 1949. In August 1955, Jenona Morse came to him with complaints he diagnosed as arthritis. He began giving monthly injections of Acthar Gel (ACTH), a drug used in the treatment of rheumatoid arthritis.

In September 1957, Dr. Hardinger first prescribed Aralen for Mrs. Morse. This drug, taken orally in tablet form, was prescribed as treatment for rheumatoid arthritis. Dr. Hardinger again prescribed Aralen for Mrs. Morse in March 1958 and February 1961.

Around 1959, certain damaging side effects were first noted in connection with Aralen. These effects began to be reported in medical literature in the period 1960-1963. By 1962, the Food and Drug Administration required that these side effects be noted on the package insert. Among these effects was chloroquine retinopathy, a condition of retinal degeneration in which progressive damage causes a doughnut-shaped blur called a "scotoma" to form in the area of central vision. If the use of Aralen is discontinued immediately, some of the toxic effects may be reversed as the body slowly excretes the Aralen over a long period of time. Beyond a certain point, however, the damage becomes irreversible and eventually manifests itself as total blindness.

Mrs. Morse began experiencing eye problems around 1959. She reported these problems to Dr. Hardinger as early as 1964 and also consulted several eye specialists between 1959 and 1968. It was not until September of 1968 that her condition was diagnosed as chloroquine retinopathy. By that time, she had taken 1885 grams (4 1/2 pounds) of Aralen, or over 18 times the limit set in 1962, after reports of the drug's toxicity were confirmed. All this Aralen had been dispensed by Bridges Drug Store in Mattoon pursuant to the prescription of February 1961. By February of 1974, Mrs. Morse's visual efficiency was 44 percent of normal in the right eye and 39 percent of normal in the left eye, not taking into account constriction of her visual field as a result of the disease. Her eye condition was described at trial as permanent and progressive.

At trial, there was testimony that Mrs. Morse suffered from osteoarthritis rather than rheumatoid arthritis, but that it is possible for a person to have had rheumatoid arthritis at one time without showing the effects of it at a later date. Aralen was never recommended for treatment of osteoarthritis, which is a disease separate from and easily distinguishable from rheumatoid arthritis.

• 1 Prior to trial but after submitting to a discovery deposition by the plaintiff, Dr. Hardinger died in an accident unrelated to the suit. Portions of that discovery deposition were offered into evidence by the plaintiff at trial as admissions. The material offered included the doctor's statements that he had prescribed the drug by phone and not followed up with a written prescription, that he had phoned in his prescription without his record on the patient in front of him and had never noted the prescription in his records, that he could not recall the number of tablets prescribed or the strength of the individual tablets and had no written record of that information, and that he had received complaints of visual problems from his patient as early as 1964, four years before the discovery by another physician that her vision problems were related to the drug Aralen. These statements were admissions against interest and inconsistent with defendants' position at trial and consequently admissible in evidence. (Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769; Sidwell v. Sidwell, 75 Ill. App.2d 133, 220 N.E.2d 479.) In toto, the plaintiff offered fourteen passages from the doctor's discovery deposition as admissions. The trial court judge did not consider them individually to evaluate their admissiblity, but agreed that they should be allowed into evidence as admissions.

The defense immediately and consistently objected to the admission of any material from the discovery deposition and argued that, if any portions were to be read, the entire deposition must be read under Supreme Court Rule 212(c):

"If only a part of a deposition is read or used at the trial by a party, any other party may at that time read or use or require him to read any other part of the deposition which ought in fairness to be considered in connection with the part read or used." (Ill. Rev. Stat. 1973, ch. 110A, par. 212(c).)

After lengthy debate, the trial court judge concluded that there would be a continuing problem with excerpting surrounding material so as to place the admissions in proper context and decided that if the deposition was admissible at all it must be admissible in its entirety.

Thereupon, over plaintiff's objection, virtually the entire discovery deposition was admitted into evidence, with the exception of certain exchanges between counsel. The material which came into evidence under this decision included comments by the doctor that he believed no prescriptions to be refillable unless so labeled, but he presumed that he would have prescribed the amount of the drug recommended by literature published at that time, that he imagined there must have been some improvement in his patient's condition after she took the drug or he would not have represcribed it, and much other self-serving material which, while helpful in telling the doctor's side of the story, was not necessary to protect against the creation of a distorted impression of the doctor's admissions.

In reference to Rule 212(c), it has been said:

"[I]t was never intended by this rule that unrelated questions and answers may be read, which do not explain, modify or reconcile the question and answer upon which a witness may be impeached. However, `in fairness' can be abused, and the interpretation of `in fairness' requires the use of sound discretion by a trial judge." ...

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