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Mielke v. Condell Memorial Hospital





Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.


Plaintiff, Leona Mielke, appeals from an order of the circuit court of Lake County directing a verdict in favor of defendant-appellee Condell Memorial Hospital (Condell Hospital) and from a judgment entered on jury verdicts in favor of defendants Burton Miller, M.D., and Robert Munson, M.D. Plaintiff assigns as errors the improper impeachment of its expert witness, the trial court's reservation of an evidentiary ruling until after cross-examination, the trial court's order granting Condell Hospital's motion for a directed verdict, and its exclusion of expert testimony summarizing the medical literature. We affirm.

Plaintiff was admitted to Condell Hospital on December 10, 1978, for emergency treatment of a perforated duodenal ulcer. Her blood pressure was extremely low, her pulse was rapid, she was experiencing severe abdominal pain and had been vomiting blood. Munson, an internist and the attending physician, testified she was in shock. Miller, a board-certified general surgeon, examined plaintiff and recommended she be given penicillin and gentamicin, two antibiotic drugs.

Plaintiff subsequently underwent two surgical procedures, the first to repair a perforated ulcer, and the second to remove an abdominal abscess. Both surgeries were performed by Miller. To combat a potentially serious infection, plaintiff was given gentamicin before and after each of the surgical operations. She also was given Lasix, a diuretic, to counteract fluid which had collected in her lungs following the abdominal abscess surgery. Both drugs have an indicated side effect of autotoxicity.

On December 27, plaintiff complained of a headache and blood was discovered in her urine. At trial, plaintiff's witness, Dr. M. Reese Guttman, testified that plaintiff suffered loss of her labyrinth, the inner ears' balance function because of the gentamicin she was given at the hospital. Guttman stated persons suffering from a total loss of labyrinthian function on each side are unable to walk without aid, are housebound, and cannot perform household duties unless they are seated. He further testified the condition was permanent.

At the close of plaintiff's case, the trial court allowed the motion of Condell Hospital for a directed verdict because of the absence of proof of the hospital's negligence. Thereafter, the jury returned verdicts of not guilty for the defendant doctors and the trial court entered judgment on the verdicts. Plaintiff's post-trial motion was denied and she filed a timely notice of appeal.


• 1 Plaintiff first assigns as error the trial court's reservation of its ruling on the admissibility of the drug manufacturer's insert. During his direct testimony, plaintiff's expert witness, John W. Frost, M.D., was asked to identify plaintiff's exhibit No. 3, the gentamicin package insert, and was asked whether the insert embodied the standard of care about which he testified. When Frost responded that it did, plaintiff offered the package insert into evidence. Defense counsel objected on the ground that the standard of care could only be established from physician testimony, the directions were not mandatory, and the foundation for the insert was insufficient. The court elected to reserve its ruling until after the cross-examination of Frost and also reserved its ruling on plaintiff's exhibit No. 4, the 1977 Physician's Desk Reference (PDR), also identified by Frost as embodying the standard of care. Following re-cross-examination of Frost, the package insert and the PDR were admitted into evidence by stipulation of all of the parties. The stipulation included the condition that exhibit Nos. 3 and 4 would not go to the jury.

At the close of plaintiff's case, plaintiff's attorney read the contents of exhibit No. 3 to the jury while the package insert was projected onto a screen in the darkened courtroom. Plaintiff's attorney also used both exhibit Nos. 3 and 4 to cross-examine Drs. Miller and Munson and their expert witnesses and relied upon both exhibits in her closing argument. The essence of plaintiff's argument, therefore, is solely that the trial court erred by reserving its ruling on the admissibility of the exhibit until after Frost's direct testimony even though the exhibits were subsequently introduced.

The cases cited by plaintiff do not warrant the conclusion that the trial court erred in the case at bar. The supreme court in Ohligschlager v. Proctor Community Hospital (1973), 55 Ill.2d 411, 417, held that a package insert was admissible as prima facie evidence of the requisite standard of care. In Ohligschlager, however, the plaintiff had not offered expert witness testimony; therefore, the court concluded "this record presents an appropriate state of facts for applying an exception to the rule." Here, in contrast, plaintiff introduced expert testimony. Plaintiff's reliance on Alton v. Kitt (1982), 103 Ill. App.3d 387, 431 N.E.2d 417 and Callan v. Nordland (1983), 114 Ill. App.3d 196, 448 N.E.2d 651, also is not directly on point. In Alton, the court allowed the expert to testify from the PDR not only because he was familiar with it, but because he had written portions of it. (Alton v. Kitt (1982), 103 Ill. App.3d 387, 398, 431 N.E.2d 417, 425.) Here, there was no testimony that Frost wrote any portion of the PDR. In Callan, the court held that the package insert from a drug used to fill a prescription for another generically equivalent drug could be admitted into evidence. Here, no evidence was presented like in Callan of a drug's brand name being confused with its generic name. Also, the Callan court expressly limited its holding to the particular facts presented there: "[W]e express no opinion as to any issue not raised by the particular circumstances of this cause." Callan v. Nordland (1983), 114 Ill. App.3d 196, 200, 448 N.E.2d 651, 654.

Even were these cases directly on point, plaintiff's argument here must fail because the insert was read to the jury, was used during cross-examination and closing argument, and was admitted into evidence by stipulation. The parties also agreed that the package insert and the PDR were the same. Therefore, the jury was presented with the contents of the package insert and the relevant portion of the PDR. Although plaintiff asserts prejudice because Frost was precluded from using the insert in his direct testimony, we note that plaintiff did not attempt to recall Frost for examination after exhibit Nos. 3 and 4 were admitted. Plaintiff cites no case where the trial court's reservation of an evidentiary ruling was error when the evidence was subsequently admitted. Contrary to plaintiff's contention, even if the trial court's reservation were error, such error would be harmless. The jury heard and read the package insert and was present when defense witnesses were cross-examined with the insert and the PDR. Since the information was presented to the jury, no reversible error was committed by the trial court.


• 2 Plaintiff contends the trial court erred in allowing repeated impeachment of its expert on immaterial matters. The scope of cross-examination of a witness is within the sound discretion of the trial court. (Eckley v. St. Therese Hospital (1978), 62 Ill. App.3d 299, 379 N.E.2d 306.) Great latitude is allowed in the cross-examination of a witness to test his accuracy, recollection and credibility. (Davidson v. Meier (1978), 60 Ill. App.3d 386, 376 N.E.2d 799.) Any alleged error in the admission of evidence designed to impeach a witness is not reversible error where no prejudice has resulted (Chloupek v. Jordan (1977), 49 Ill. App.3d 809, 364 N.E.2d 650), and a court of review will not presume that prejudice exists. (Atz v. Goss (1974), 21 Ill. App.3d 878, 316 N.E.2d 29.) The fact that an expert witness is impeached during cross-examination is not prejudicial. Becker v. Aquaslide `N' Dive Corp. (1975), 35 Ill. App.3d 479, 341 N.E.2d 369.

Applying these principles to the instant case, no reversible error is raised by plaintiff. At trial, Frost answered affirmatively that he knew what the standards of care were for administering and monitoring drugs "here" in 1978. In his deposition, however, Frost stated he was not familiar with the standards in the area in 1978 "because I wasn't in this area in 1978." Since these ...

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