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Ross v. Pfeifer





APPEAL from the Circuit Court of Livingston County; the Hon. WILLIAM T. CAISLEY, Judge, presiding.


Rehearing denied August 3, 1976.

On February 9, 1973, Jesse E. Ross filed a complaint in the Circuit Court of Livingston County against defendant James Pfeifer seeking to recover for personal injuries alleged to have arisen out of a collision occurring on March 10, 1971. On March 5, 1974, Mr. Ross died of cancer not caused by the collision and his widow and executor, Kathryn Ross, was substituted as plaintiff. After jury trial judgment was entered on a verdict for plaintiff fixing damages in the sum of $30,000. Defendant appeals.

Plaintiff's deceased had been to a lodge meeting and at about 9:30 p.m. on the evening in question was driving alone in a northerly direction on U.S. Route 66 approaching the intersection with a rural road about 3 miles south of Odell in Livingston County. At this point Route 66 has two lanes of traffic going in each direction with a median strip in the center. At the intersection there was an east-west crossover which permitted crossing the highway and turning from the highway into the country road. A left turn at the rural road would have taken decedent to his home and at the time of the collision he was driving in the innermost or left turn lane. Defendant, accompanied by a friend, was returning from a basketball game at Normal and also driving in a northerly direction. His car was behind the Ross car and was in the outer lane. A third car was in front of defendant's car. Defendant pointed out to his passenger some matches that his passenger had dropped on the floor and then, without checking the passing lane, he drove into it and collided with the rear of the Ross car.

The decedent Mr. Ross did not indicate any injury at the scene but according to plaintiff, his wife, he was upset at home that night and went to see Dr. Homer L. Parkhill the next morning. X-rays were taken and deceased continued to see this same doctor once or twice per week until the doctor died on July 10, 1971. At that time Dr. Homer C. Parkhill, son of the deceased doctor, assumed the care and treatment. Consultation was had with Dr. John L. Wright, an orthopedic surgeon of Bloomington beginning in September of 1971. In the winter of 1972 deceased had the flu after which he continued to feel weak and tired and complained of aching in his lower chest. In May or June of 1972 Dr. Homer C. Parkhill determined that deceased had lung cancer in the form of bronchiogenic carcinoma. Mr. Ross underwent extensive treatment and surgery for the cancer. It was unsuccessful, however, and he died on March 5, 1974.

Defendant does not contest the sufficiency of the evidence to support a verdict but claims that various procedural errors occurred at the trial. His most serious contention concerns the limitations placed upon his cross-examination by Drs. Parkhill and Wright. On direct examination both testified that there was no direct relationship between the decedent's symtoms of headache, dizziness, and limitation of movement of the neck and spasms of its muscles, and the cancer. Defense counsel was not permitted to question Dr. Parkhill on cross-examination as to the length of time that the cancer of the lung, a carcinoma, would have taken to develop or whether it was ever determined that the lung was the primary site of the cancer. Cross-examination of Dr. Wright as to his knowledge of where the hilum of the lung was located was also prohibited. This question was purportedly asked to test his knowledge.

Dr. Wright further testified on direct examination that when he examined decedent on November 10, 1972, decedent exhibited limitation of motion of the neck. Although the decedent had undergone cobalt radiation treatment and then surgery for the removal of the lung cancer within the 2 months prior to the examination, defendant was not permitted to cross-examine the doctor concerning the effect of the treatment on the body, whether the doctor knew of the type of cancer from which decedent suffered or whether the doctor was familiar with the term "bronchiogenic carcinoma." Defendant made offer of proof that if he were permitted to ask Dr. Wright, the doctor would testify that one of the symptoms of bronchiogenic carcinoma in the advanced stages is sometimes a generalized fatigue, that carcinoma metastasizes or spreads to other parts of the body, that if it did spread to the neck it possibly could cause loss of neck motion, and that the doctor did not know for sure the size or location of the cancer and had not consulted with the physician to whom Dr. Parkhill had referred decedent for the cobalt treatment and surgery.

In Muscarello v. Peterson, 20 Ill.2d 548, 170 N.E.2d 564, a medical expert on direct examination answered a hypothetical question based on the evidence in the case as to causation between a blow to the head and a claimed state of ill-being by the recipient of the blow. In explaining his opinion, he stated that the encephalogram was not a reliable test for epilepsy. On cross-examination, opposing counsel was not permitted to ask the doctor if he had not, himself, examined the patient, withheld a diagnosis until he received the results of an encephalogram and then based his diagnosis on the encephalogram. The trial court ruled the question to be beyond the scope of the direct examination. On review, the Supreme Court held that the cross-examination should have been permitted and that its refusal together with other error was ground for reversal. The court noted that while large discretion is left to the trial judge in determining the limits of cross-examination, it should not be excluded on subjects covered in the direct examination and that great latitude should be allowed in cross-examining a medical expert who answers a hypothetic question. The court concluded that prejudice resulted from the limitation on cross-examination.

The theory of the trial court in sustaining the objections to the proposed cross-examination in the instant case was twofold. One reason given was that the doctors had not testified about the cancer on direct and the inquiry was thus beyond the scope of the direct. The other reason, which was stated in ruling on some questions put to Dr. Wright, was that he had testified on direct examination that there was "no connection between the cancerous condition that developed and the accident." The issue upon which the defendant wished to cross-examine, however, was not whether there was a causal connection between the collision and the cancer but whether there was a causal connection between the cancer and decedent's symptoms which both doctors attributed to the collision. Both doctors had testified that there was no such causal connection and defendant should have been permitted to cross-examine them on this point. The questions to which objection was sustained should have been permitted.

• 1 The error, however, was not of sufficient magnitude to require reversal. No direct evidence refuted the doctor's testimony that there was no connection between the symptoms attributable to the neck injury and the cancer or its treatment. Any inference from the testimony in the offer of proof that there was such connection or that the cancer had spread to the neck was highly speculative. Any prejudice to defendant was accordingly very small.

• 2 Defendant also maintains that the trial court erred in overruling various objections to evidence offered by plaintiff. Some of these rulings concerned opinions of diagnosis and causation given by the doctors. Dr. Parkhill testified that after he assumed the care of decedent, he examined and questioned the patient. Dr. Parkhill was then permitted, over defendant's objection, to state that he diagnosed decedent's condition as a cervical sprain and then to explain how such an injury occurs when a sudden application of force is applied to muscle fibers. Similarly, over objection, Dr. Wright was permitted to give substantially the same testimony and to demonstrate the mechanics of the whiplash movement of the neck by use of a diagram. Dr. Wright was also permitted, over objection, to give an opinion in answer to a hypothetical tailored to the facts of the case, that the collision could have been the cause of the cervical sprain. Defendant's objection was that no evidence was introduced to show that decedent's neck was jerked at the time of the impact of the collision. Both doctors upon making diagnosis, however, had information that the decedent had been in a collision, that he had no symptoms before and that he had the described symptoms afterward. In the hypothetical question, the substantial impact shown by the evidence of damage to decedent's car was an additional given fact. Neither logic nor precedent requires that a medical expert be given the exact bodily movements undergone by the injured party in order to express an opinion as to diagnosis or causation.

• 3 Objections were also overruled as to testimony by plaintiff as to the card playing, camping, dancing and social activities engaged in by the couple prior to the collision and that prior to the collision, decedent had a "marvelous" relationship with his grandchildren. Generally it is prejudicial error to admit evidence of family circumstances in a compensation (as opposed to wrongful death) case. (Payne v. Noles, 5 Ill. App.3d 433, 283 N.E.2d 329.) However, if such testimony is relevant or provides insight as to some element of compensable damages claimed, it is not error. (Hedrich v. Borden Co., 100 Ill. App.2d 237, 241 N.E.2d 546.) Here the testimony was supplemented with evidence that after the collision decedent's ability to engage in the activities with his wife was impaired and his mental attitude had changed so that his grandchildren annoyed him. Although the injury to the family unit was not compensable, the impairment of decedent's ability to engage in social and recreational activities and to enjoy the society of others was compensable.

Two items of plaintiff's evidence admitted over defendant's objection concerned problems which arose because the senior Dr. Parkhill who had treated plaintiff's deceased for the first few months, had died. His son, Dr. Homer C. Parkhill, testified from office records that the senior Dr. Parkhill had seen decedent professionally approximately 34 times after the collision. A bill purporting to be from Homer C. Parkhill, M.D., for professional services "rendered for neck injury from 3/11/71 through Oct. '73" in the sum of $409.50 was admitted into evidence. Dr. Parkhill testified that this bill had been prepared by his staff from his records and that of his father. Defendant argues that to the extent that these items of evidence reflect the records of the senior Dr. Parkhill, the information conveyed is hearsay that is not made admissible by the business records exception of Supreme Court Rule 236 (Ill. Rev. Stat. 1973, ch. 110A, par. 236). That rule states that it "does not apply to the introduction into evidence of medical records."

• 4 In People v. Jackson, 41 Ill.2d 102, 107, 242 N.E.2d 160, 163, a jail inmate's condition at the time of making a confession was at issue. A jail admission card kept by the jailor which contained a notation by an examining physician that the inmate's "condition" was "good" was held to be properly admitted. The court reasoned that although the statement in issue was a doctor's diagnosis, the card was more than a diagnostic record and thus admissible under Rule 236. In People v. Aristole, 131 Ill. App.2d 175, 268 N.E.2d 227, information on a hospital record concerning defendant's physical condition which bore on his alibi was held to be properly refused as the record was merely a diagnostic record. Here the records of the Parkhills were diagnostic in that there must have been some reference in the documents as to the nature of the condition for which decedent was being treated. In addition, however, they were financial records and that was the purpose for which the information from them was being introduced. No error occurred in admitting this evidence. Even had there been error, it would have been minimal because ...

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