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Gasbarra v. St. James Hospital





APPEAL from the Circuit Court of Cook County; the Hon. MARVIN E. ASPEN, Judge, presiding.


Mr. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court:

Plaintiff appeals from a judgment entered on a verdict in favor of defendant in a malpractice action which sought damages for the death of plaintiff's 14-month-old daughter (hereafter decedent). A special interrogatory as to whether the doctors who treated decedent were independent contractors was answered affirmatively.

From the testimony of plaintiff, it appears that she brought decedent to the emergency room of defendant on four occasions — the first of which was May 24, 1972, when she was examined by Dr. James Greene, who gave plaintiff instructions for the child's care at home and prescribed medicines for her condition, which he diagnosed as measles. When the child did not improve, plaintiff brought her back the next day and she was examined by another emergency room physician who told plaintiff to continue her home care in accordance with Dr. Greene's previous instructions. The following day, plaintiff again returned with the child to the emergency room, where she was examined and treated by still another doctor who, according to plaintiff, said that the child could not be admitted to the hospital because it did not have a contagious disease ward. The next day, when the child's condition worsened, plaintiff states that she called the emergency room and the woman who answered the phone told her to continue with the home treatment. Later that same day, the child suffered convulsions and was brought to the emergency room where she was treated. That evening, she was admitted as a patient to the hospital, where she was examined by a Dr. Braun, who prescribed certain medication and did a minor surgical procedure to provide for intravenous medication. The hospital record does not indicate that any of the prescribed medication was given her until about two hours after it was ordered. Dr. Braun, however, testified he ordered the prescribed medication after decedent had already been given other medication. The child's condition worsened, and she died the next day.

Two expert witnesses testified concerning the treatment rendered decedent. Dr. Feldstein, for plaintiff, stated in substance that the treatment rendered by the emergency room doctors and nurses during her third and fourth visits did not conform to the standards of medical practice prevailing in the area at that time. Specifically, Dr. Feldstein took the position that decedent should have been admitted to the hospital upon her third visit, because of her symptoms at that time. In addition, he said that the performance of the hospital nursing personnel was in violation of acceptable nursing standards — particularly in the alleged delay in administering the medicine ordered by Dr. Braun in the hospital. Dr. Feldstein concluded that the deviation from proper standards of medical care might or could have caused the death of decedent. Dr. Allen, testifying as an expert witness for defendant, disagreed with the conclusions of Dr. Feldstein. In substance, he stated that the care rendered by the physicians in the emergency room complied with the required standard and that he had no criticism of the care given by the nursing staff either in the emergency room or in the hospital — all of which he stated was also within required standards.

It is undisputed that prior to the events involved in the alleged malpractice, defendant had operated the emergency room in its hospital, but that on March 1, 1972, the Doctors Emergency Care Association (DECA), a professional corporation, entered into a written agreement with defendant to manage its emergency department. The agreement generally required that DECA was to provide continuous physicians' services to any ill or injured persons coming or brought to the emergency room; and that defendant was to furnish all other personnel, as well as supplies, space and equipment necessary for the operation of the emergency department.

During her visits to the emergency room decedent was treated by DECA physicians, but neither DECA nor the physicians have been named as defendants in this action, so that on the malpractice aspect of her action, it was necessary for plaintiff not only to establish that the DECA physicians did not exercise the required standard of medical care but also that DECA, in the treatment of decedent by its physicians, was the agent of defendant. The evidence and the content of the agreement between DECA and defendant will be set forth in greater detail in our discussion of specific issues.

Plaintiff makes numerous allegations of error and, to facilitate their consideration, we have grouped them into the following contentions: (1) that the trial court erred in denying her motions for directed verdict and judgment notwithstanding the verdict; (2) that the special interrogatory should not have been submitted to the jury and, in any event, that the answer to the interrogatory finding DECA to be an independent contractor was against the manifest weight of the evidence; (3) that there were erroneous rulings on instructions; and (4) that the trial court improperly refused an adverse examination of Dr. Greene.


Considering the first contention, we note that the trial court denied motions by plaintiff for directed verdict at the close of all the evidence. The grounds therefor, as stated in plaintiff's written motion, were twofold; namely, that DECA "was agent of St. James Hospital" and that DECA "was guilty of malpractice as a matter of law." In her briefs in this court, however, plaintiff makes no attempt to negate a factual question on the malpractice issue. She assumes that the court denied the motions for directed verdict solely on the basis that there was a question of fact as to whether DECA was agent of defendant or an independent contractor. This assumption finds no support in the record, however, and we believe that it was quite possible and, indeed, probable that the court denied the motions for directed verdict because there was a question of fact as to malpractice.

• 1, 2 Initially, we note that a verdict ought to be directed and judgment n.o.v. entered "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.) In a medical malpractice action, plaintiff must establish the standards of care against which defendant's conduct is measured and must then prove that, judged in the light of these standards, the defendant was unskilled or negligent and that his want of skill or care caused the injury to plaintiff. (Borowski v. Von Solbrig (1975), 60 Ill.2d 418, 328 N.E.2d 301; see Illinois Pattern Jury Instructions, Civil, No. 105.01 (2d ed. 1971) (hereinafter cited as IPI Civil).) "Generally, expert testimony is needed to support a charge of malpractice because jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of physician." (Walski v. Tiesenga (1978), 72 Ill.2d 249, 256, 381 N.E.2d 279, 282.) There are, however, situations where a physician's conduct is so grossly negligent or the treatment so common that a layman could readily appraise it, in which event expert testimony may not be necessary. Walski v. Tiesenga.

• 3 In the instant case, plaintiff recognized the factual situation to be one requiring the need of expert testimony, and she does not now contend to the contrary. Her expert medical witness testified to a lack of the required standard of care in the treatment of decedent by DECA personnel and also of the hospital nurses because of their alleged delay in administering the medication prescribed by Dr. Braun at the hospital. Defendant's expert medical witness, however, testified that the care and treatment by DECA physicians and the care provided in both the emergency room and the hospital were within the standards required. Furthermore, as to the alleged medication delay in the hospital, we note Dr. Braun's testimony that he examined decedent at the hospital and ordered medication sometime between 9:45 and 10:30 p.m., while the hospital records show that no medication was given until midnight. Dr. Braun testified, however, that he ordered the prescribed medication after decedent had been given some medication. In the light of the totality of this testimony, it appears clear to us that questions of fact existed as to whether the treatment of decedent was within required standards, and we find that on that basis the trial court properly denied the motion for directed verdict. *fn1

Further, plaintiff's motion for judgment notwithstanding the verdict was grounded solely on the failure of the trial court to find that DECA was the agent of defendant in its care of decedent. Having found above that questions of fact existed and, on that basis that the trial court properly denied the motions for a directed verdict, we apply the same reasoning as to the motion for judgment notwithstanding the verdict and we conclude that it also was properly denied.

Turning to the second contention of error, which concerns the special interrogatory, plaintiff posits that it should not have been submitted to the jury and that, in any event, the finding that DECA was an independent contractor was against the manifest weight of the evidence, requiring a new trial.

• 4 Special interrogatories must be tendered, objected to, ruled upon, and submitted to the jury in the same manner as instructions (Ill. Rev. Stat. 1977, ch. 110, par. 65), and it is well settled that to preserve an objection to an instruction or special interrogatory upon review, the grounds for the objection must have been specifically raised in the trial court so that it could be advised of the specific nature of the objection before ruling thereon. Supreme Court Rule 239(b), Ill. Rev. Stat. 1977, ch. 110A, par. 239(b); Delany v. Badame (1971), 49 Ill.2d 168, 274 N.E.2d 353; O'Neill v. Montalbano (1972), 3 Ill. App.3d 414, 279 N.E.2d 467.

Initially, we note in the instant case that the special interrogatory was presented by defendant during an instruction conference which does not appear in the record. At a subsequent in-chambers discussion, the court stated:

"Let the record reflect that there has been an instruction conference and I am going to set forth the results of the instruction conference and the attorneys for either side can interject at any time with any legal position succinctly that they may have."

Thereafter, the only reference to the special interrogatory appears as follows:

"THE COURT: Interrogatory given over objection.

MR. LESAK [plaintiff's attorney]: Your Honor, again I would like to point out that this interrogatory does not encompass — The total question is dispositive to all the issues. The jury may find there was malpractice by the nurse in the failure to give the medication pursuant to the order of Dr. Braun. If a general verdict is given and this interrogatory is marked "Yes," we will never know whether or not the jury has determined that the nurse was negligent nor will we know whether or not they determined that the Doctors Emergency Care Association was an agent of the defendant hospital. I would suggest that the Court permit an instruction — an ...

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