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Wilson v. Clark





APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. LEIFHEIT, Judge, presiding.


Plaintiff, John Wilson, brought this action against the defendant, Dr. David Clark, as the result of the alleged negligent medical treatment of the plaintiff which resulted in the amputation of his right leg below the knee. Following a jury trial, a verdict was returned for defendant, and plaintiff appeals. Due to the errors committed at trial, we reverse and remand for a new trial. A statement of the pertinent facts follows.

On January 8, 1972, the 20-year-old plaintiff was struck by a car and suffered injuries to his right leg, namely, a spiral fracture of the tibia (the "shin bone") and two fractures of the fibula (the thinner bone running parallel to the shin bone). The fracture to the tibia was a short oblique fracture, a type which tends to be unstable, i.e., one that cannot be maintained in a correct position after several attempts to reduce or set it. Two days after the injury, defendant performed a surgical procedure known as an "open reduction" on plaintiff's right leg and inserted a single screw into the fracture site. There is a recognized percentage of infection complication when an open reduction is done. Following his release from the hospital in late January 1972, plaintiff suffered from diarrhea and fever, experienced weight loss, and the surgical wound drained pus. On February 24, 1972, plaintiff was seen by Dr. Arthur Abbott, an associate of the defendant. Dr. Abbott's notes indicated that he examined plaintiff and "wondered about the possibility of an osteomyelitis," an infection of the bone marrow by bacteria such as pseudomonas. However, defendant assured Dr. Abbott that plaintiff did not have osteomyelitis. Plaintiff was in a cast until June 1972, when he went back to work.

A second operation was performed on plaintiff's leg by defendant on December 6, 1972, due to the malunion of the tibia. Prior to the second operation plaintiff's right leg was badly bowed to the outside, the calf was large and swollen. Plaintiff could not manipulate his right foot well and walked with a bad limp. In the second operation, defendant performed an osteotomy on plaintiff's right leg in which he inserted an "AO plate" with four screws over the fracture site to hold the reduction. Following this surgery, pus continued to drain from the front part of the leg. In a third operation, performed June 2, 1973, the plate and screws were removed. The plate and screws were tested and "chronic inflammatory cells" and "sequestrum" (broken down bone) were found. There was testimony that the latter finding was infection or osteomyelitis from the pseudomonas bacterium. However, according to defendant, the "inflammatory cells" were a nonspecific finding and not osteomyelitis. Plaintiff last saw defendant on January 14, 1974; the wound was still draining.

Plaintiff then went to Dr. Jack Robbins who operated on plaintiff on April 18, 1974, and inserted Steinmann pins into the fracture site and placed the leg in a cast. A culture test of the tissue removed during this surgery showed pseudomonas, and plaintiff was placed on antibiotics and discharged from the hospital. The Steinmann pins were drawn out on July 2, 1974, and plaintiff's leg recasted. Plaintiff's cast was removed on October 8, 1974, and a splint was applied which allowed movement. At this time no infection appeared, nor was plaintiff on any antibiotics. Plaintiff was admitted to the hospital on December 1, 1974, with inflammation; his right leg was amputated below the knee on December 8, 1974. Tissue and bone from the amputation was tested and "chronic" and "acute" inflammation was found in the fracture site. Thereafter, plaintiff commenced this lawsuit.

Plaintiff has presented 10 issues for review on appeal. Due to our disposition of this case, only three of them will be discussed.

We turn first to the errors alleged regarding the admission of plaintiff's hospital records into evidence. Previous to defendant calling his expert witness, Dr. Clifford Nyman, to testify, there was a discussion outside the presence of the jury concerning the propriety of the hypothetical question that was intended to be propounded to Dr. Nyman. Over plaintiff's objection, the trial court permitted defense counsel to place into evidence plaintiff's hospital records, which contained a multitude of pages of technical medical entries, including history sheets, laboratory reports, temperature charts, medication, administration sheets, X-ray reports, progress reports, pathology reports, post-anesthesia reports, physician orders and nurses' notes. Defense counsel was then permitted to ask Dr. Nyman to assume the facts stated therein to be true and then to ask the witness to assume additional facts. Plaintiff objected to the hypothetical question on two grounds, namely, (1) that the hospital records were inadmissible without the proper foundation, and (2) that plaintiff would have no idea upon which facts contained in the hospital records defendant's expert witness based his opinion, since there had been no evidence as to the content of the records, and as a consequence it would be impossible to cross-examine the expert upon the facts he relied.

• 1, 2 Supreme Court Rule 236(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 236(a)) provides that a business record which qualified under the Rule shall be admitted into evidence without introducing all other circumstances of its making. Under the rule, such circumstances merely affect its weight, not its admissibility. However, the provisions of this rule do not apply to the introduction into evidence of hospital records or police accident reports. (See Ill. Rev. Stat. 1977, ch. 110A, par. 236(b).) It has been held, therefore, that the admission of hospital records will be allowed only where a proper foundation is laid. (Casey v. Penn (1977), 45 Ill. App.3d 573, 360 N.E.2d 93.) The proper foundation is laid by the testimony of the person who made the entries in the hospital records. (Slater v. Missionary Sisters (1974), 20 Ill. App.3d 464, 314 N.E.2d 715.) As there was no testimony by the person making the entries, the admission of the hospital records here was error. Further, allowing such a hypothetical question based upon the unspecified contents of the plaintiff's hospital records not only hampered plaintiff's cross-examination of defendant's expert witness, but permitted purely argumentative material, rather than statements of assumed facts from which an expert can form an opinion, to be placed before the jury. (Compare Borowski v. Von Solbrig (1975), 60 Ill.2d 418, 328 N.E.2d 301.) Therefore, upon retrial of this case, the use of such a hypothetical question should not be permitted.

• 3 However, defendant argues that plaintiff's attorney stipulated to the authenticity of these records and thus has waived the necessity for a foundation. Indeed, that appears to be the reason the trial court overruled plaintiff's objection to their admission, and allowed them into evidence. Plaintiff's attorney argues that by stipulating to the authenticity he merely waived the right to demand that the custodian of the records come to court to testify that: (1) he had received a subpoena to bring the records to court; (2) that the records are kept in the regular course of the hospital business; (3) that the records contain no alterations or deletions; and (4) are in the same condition now as when the entries were originally made. However, there is no indication of a waiver of the requirement of the testimony of the person who actually made the entries necessary for the establishment of the proper foundation. We conclude, therefore, that plaintiff did not waive the necessity of establishing a foundation for the admission of the hospital records, and that the trial court erred in admitting them into evidence.

Next, we turn to the allegation of error regarding the use of a medical textbook at trial. During direct examination of defendant by his counsel, the following colloquy occurred:

"Q: Did you hear yesterday when Dr. Khedroo [one of plaintiff's experts] said it was accepted medical treatment to put the screw perpendicular to the fracture line?

A: He said the proper treatment was to — to be perpendicular to the line of the fracture not perpendicular to the axis of the bone. In fact, the correct answer is the opposite of what Dr. Khedroo said and in my view it was placed in proper fashion.

Q: There is even a picture in the old addition of Campbell's showing it just like this on ...

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