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Harris Trust & Savings Bk. v. Ali







APPEAL from the Circuit Court of Cook County; the Hon. LAWRENCE P. HICKEY, Judge, presiding.


The plaintiff as guardian of John Hopp, Jr., recovered $1,500,000 from defendants Drs. Ali and Feinberg and Sherman Hospital, Ali's employer, when the child was misdiagnosed and improperly treated for spinal meningitis. Sherman was sued solely as Ali's employer. Ali and Sherman Hospital appeal this verdict contending that:

1. a so-called loan receipt agreement between plaintiff and Feinberg, which provided that if plaintiff recovered from any other party Feinberg would be reimbursed for the $750,000 he paid under the receipt but which in no way released Feinberg from liability, should have been disclosed to the jury;

2. the trial court erred in not dismissing, until after the close of the evidence, a counterclaim by Feinberg against Ali and Sherman for total indemnity brought on the theory of active/passive negligence;

3. the trial court erred in refusing to allow Ali to introduce testimony from experts, whose names had not been given to the plaintiff prior to trial, to refute testimony of plaintiff's expert as to when irreversible injury occurred;

4. the plaintiff's questioning of Mrs. Hopp, the child's mother, as to whether she had made prior inconsistent statements in a deposition was reversible error;

5. plaintiff's rebuttal closing argument exceeded the bounds of proper advocacy.

Ali and Sherman do not contend that the verdict is against the weight of the evidence or unsupported by the evidence or that the damages are excessive.

We find no reversible error in the trial of Harris Trust v. Ali and Sherman and affirm that award.

Ali and Sherman had filed a counterclaim against Feinberg for indemnity and pro rata contribution. The trial court directed a verdict for Feinberg against Ali and Sherman at the close of the evidence on this counterclaim. We agree with the trial court that Ali and Sherman cannot recover under "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). However we hold that the counterclaim did state a cause of action for pro rata indemnification and that the evidence, both that introduced into evidence and that of the excluded experts, was such that we cannot say "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.) Furthermore, we hold that while as to plaintiff's suit there was no reversible error in excluding the testimony of the three unlisted experts, it was error to exclude the testimony of two of them in support of the counterclaim. Accordingly, we reverse and remand for a new trial.

Despite the many witnesses at the trial, most of the facts leading up to the injury and lawsuit are uncontradicted.

John Hopp, Jr., was born on May 13, 1972. He was a healthy baby at birth and developed normally during the next six months. He first became ill on November 19, 1972, the Sunday before Thanksgiving. He vomited and had an 102° temperature, for which his mother gave him liquid aspirin. Since the infant did not improve, Mrs. Hopp took him to Feinberg, their pediatrician, Tuesday afternoon, November 21, 1972. Feinberg examined the child, diagnosed bronchitis, and prescribed Polycillin to be taken orally four times a day. Mrs. Hopp followed instructions but the child did not get any better. In fact the next day his temperature rose to about 105° . He was staring — that is, he could not follow movements of people or things. He was like a wet dishrag. He had no control, no movement of his extremities. The parents tried to reach Feinberg three times by telephone — unsuccessfully. They left a message for him but he did not return their telephone calls. Finally, late in the afternoon on Wednesday, November 22, the parents took the child to the emergency room at Sherman Hospital. They arrived at 4:50 p.m.

Mrs. Hopp told the nurse that the child was running a high fever, was vomiting, was staring and was doing nothing. The nurse noted on the emergency room record that the child was staring and was nonreactive. She took the baby's temperature rectally and recorded it at 105° . The infant was given one grain of aspirin and the nurse then brought towels and ice cold water to sponge the child down. The Hopps sponged the child for about an hour or more, after which the child's temperature was down to 100-102° .

After the child's temperature had fallen, he was examined by defendant Ali. Both the Hopps testified that he was in the room for about two minutes and examined the child for less than a minute. He only used a stethoscope. He did not X-ray the child or take any blood from him.

Ali claimed that he gave the child a complete physical examination and performed the basic neurological tests. The child, although tired, was reactive; he was able to move his head, arms and legs in a normal manner and his eyes were normal. However Ali admitted on cross-examination that when he examined the child, the child remained silent, did not clench his fists, and was quiet. He was "washed-out."

Ali only found an upper respiratory infection and pharyngitis. He advised the Hopps to continue with the medication prescribed by Feinberg. He also claimed that he called Feinberg and advised him of his findings and diagnosis. Feinberg denied this and claimed that he did not know of the emergency room visit when he saw the child again on November 27, 1972. His secretary testified that the Hopps told her of the visit but she did not recall seeing a copy of the emergency room record for November 22, although the usual practice is to deliver the physician's copy of the record to the physician by putting it in his box at the hospital.

The Hopps left at 6:15 p.m. with their child; he was not hospitalized for observation. Before leaving, they were given a printed slip of paper stating that if the patient's condition persisted or got worse, they should contact his physician or return to the emergency room.

The emergency room record as it read immediately before suit was filed solely indicated that the diagnosis was "U.R.I. pharyngitis." The sole treatment listed was "aspirin grain 1," "continue medication as prescribed by Dr. Feinberg yesterday" and "cold sponge." Ali did not record the vital signs of the child, or put down that any physical or neurological exam of the child was conducted. After the complaint was filed, the emergency room record was again subpoenaed and copied. It had been altered by Dr. Ali to add a detailed examination of the infant which examination was negative. He also added "Dr. Feinberg notified" "to see Dr. Feinberg in the morning." At trial Ali admitted altering the record but could not recall when he did it.

The day after the emergency room visit, Thanksgiving, the child was slightly improved. He was able to move his head and neck slightly but his extremities were still limp. Mr. Hopp called Feinberg who told him to continue the Polycillin and bring the child in to his office on Monday, November 27.

Over the weekend, the child became worse. His temperature persisted, he became limp and listless; he began to emit a screech or hurt cry, and his eyes appeared to be crossed. When Mrs. Hopp saw Feinberg on Monday she advised him of all this. Although these are classic signs of meningeal infection, Feinberg again diagnosed bronchitis and changed the prescription from Polycillin to Declomycin, an antibiotic known to be ineffective against meningitis. Feinberg told the parents to take the child home and made no appointment for any follow-up observation.

On December 2, 1972, as the child's condition had still not improved, Mr. Hopp took him to Feinberg's office and insisted he be admitted to the hospital for testing. Feinberg was reluctant to do so but finally agreed. A spinal tap was traumatic and showed blood in the spinal fluid. The child was immediately admitted to the hospital, placed in an oxygen tent and given intramuscular, not intravenous, shots of Polycillin. Although on December 2, 1972, the child was showing even more classic meningitis symptoms and other hospital tests on that date showed abnormal sugar, protein, and blood cell counts, ali commonly associated with meningitis, it was not until December 4, 1972, that Feinberg made his first definitive diagnosis of spinal meningitis and changed the prescription to intravenous Polycillin. The disease thereafter ran its course, and the child was discharged from the hospital on December 31, 1972. He had suffered serious injuries from the disease including extreme brain damage and quadriplegia. The child, because of his condition, has had to be placed in a home.

At trial, plaintiff produced expert witnesses who testified that Ali should have performed a spinal tap on the child, that the tap would have revealed spinal meningitis and that had proper medication been given on that day, the child would have recovered without adverse effect. Conversely, Ali produced an expert who testified that Ali exercised the proper degree of emergency room care. However that witness admitted that Ali should have done a lumbar puncture if he noticed that the child was limp and "washed-out" or if the child did not clench his fists, move his arms and was silent. That witness further agreed that if after sponging, the extremities were still limp and the child was only able to move his head and neck slightly, it could not be considered a significant improvement and the child should have been kept for further diagnostic tests. Finally, the witness agreed that the altered chart showed the examination which should have been made.

Plaintiff also produced expert medical testimony from Dr. Mendelsohn to the effect that Feinberg violated the ...

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