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Scholle v. Continental Nat'l Amer. Group

OPINION FILED NOVEMBER 22, 1976.

MATTHEW J. SCHOLLE, ADM'R OF THE ESTATE OF RITA M. SCHOLLE, PLAINTIFF-APPELLEE,

v.

CONTINENTAL NATIONAL AMERICAN GROUP, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. FRED W. GEIGER, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE SEIDENFELD delivered the opinion of the court:

The plaintiff recovered a judgment for damages in the amount of $30,000 for the accidental death of Rita M. Scholle who was insured against accidental death by the defendant. Defendant's motions for judgment notwithstanding the verdict or in the alternative for a new trial were denied and defendant appeals. It contends that the evidence most favorable to the plaintiff did not prove that death was caused by an accident. In addition, defendant claims that the court committed reversible error in restricting cross-examination of plaintiff's medical expert. There is no argument as to the construction of the terms of the policy.

The record includes testimony that the decedent was a 32-year-old woman who, on October 30, 1971, fell from a platform surrounding her swimming pool. She had been standing on the platform using an eight-foot skimming net to remove floating leaves from the pool. She fell a distance of 2 1/2 feet, striking some decorative stones which surrounded the pool.

Her husband, Matthew Scholle, testified he saw her on the ground and helped her up. She told him she had been reaching with the net for some leaves and lost her balance, started to fall into the water, overcompensated and fell backward off the deck. She stated at the time that she was "O.K." but noted a little soreness in her head and neck area. Mr. Scholle also noted a slight redness in that area but there were no bruises or breaks in the skin. They completed storage of various items connected with the pool but canceled their plans for the evening because Mrs. Scholle complained of a headache and of not feeling well. The next morning they dressed and went to church for an early morning mass. Upon returning home Mrs. Scholle prepared breakfast for herself, her husband and some workmen who were in the process of winterizing the swimming pool. She was not able to finish breakfast herself and went to bed complaining of a headache and a stiff neck.

Mrs. Scholle got up later that afternoon and both she and her husband decided to go to a restaurant to eat. Shortly after getting dressed she complained of the worst headache she had ever had and collapsed. Her husband helped her into the bedroom and later that night she was taken to the hospital by a rescue squad. There was testimony that prior to her fall Mrs. Scholle had been physically active and in apparent good health.

Dr. Alan Minster who specialized in neurosurgery testified for plaintiff. On direct examination he stated he first examined Mrs. Scholle in the hospital on November 3, 1971. He took a medical history primarily from Rita Scholle's husband but as to which Mrs. Scholle nodded her agreement. She stated that when she fell and struck her head she was not "knocked out" but she had a headache afterwards and the rest of the evening and the following morning she had a headache and felt strange. Some time the following day she had a sudden terrible headache, the worst headache she had ever had in her life. Her next recollection was when she was in the hospital.

Dr. Minster conducted a neurological examination and found that Rita Scholle was awake and alert and complained of headache and a mild stiff neck. He found an abnormal neurological reflex called a bilateral Babinski response which indicated that something was wrong inside her head or spinal cord but "is kind of a generalized problem." He saw the reports of Dr. Rowley who had examined Mrs. Scholle when she first came to the hospital. Dr. Rowley performed a spinal tap, found the fluid to be bloody and recommended that she be seen by a neurosurgeon.

Dr. Minster's initial impression was that Rita was bleeding inside the head and that further tests would be required to find the cause of the bleeding. An angiogram test was made which showed that the patient had an aneurysm. The aneurysm was described as about one-half inch in size, a kind of ball or sac that bulges off a blood vessel inside the head. Dr. Minster characterized it as a berry aneurysm. He said there were no known tests to show how long the aneurysm had existed. He had planned an operation when very suddenly she became comatose and died on November 12, 1971, 12 days following her fall.

The doctor was asked the following questions and gave the following answers on direct examination:

"Q. Doctor, do you have an opinion to a reasonable degree of medical certainty based upon your experience and education and your treatment of patients and your treatment of Rita Scholle as to whether or not the fall which you referred to and described in the medical history taken from the patient could or might have contributed in whole or in part to the rupture of the berry aneurysm?

A. Yes, I have.

Q. What is that opinion, Doctor?

A. I think it could have.

Q. Doctor, are there any existing medical techniques, tests, procedures by which the trauma experienced in that fall which you described in relating the medical history, can be ruled out ...


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