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Martin v. Zucker

OPINION FILED MAY 28, 1985.

BETTY J. MARTIN, PLAINTIFF-APPELLANT,

v.

ALAN J. ZUCKER, M.D. ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Cawley, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Plaintiff-appellant, Betty J. Martin, brought this medical malpractice action against two physicians, defendants-appellees Alan J. Zucker and Marcia Siegal. Plaintiff alleged that defendants needlessly and negligently performed a dilatation and curettage (D & C) procedure resulting in injury to her. The jury returned a verdict for the defendants and against the plaintiff. The trial court denied plaintiff's post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Plaintiff appealed.

Plaintiff Betty J. Martin gave birth to a daughter on December 20, 1978, at Mary Thompson Hospital in Chicago. After her discharge on December 23, plaintiff noticed that she was still bleeding from her vagina. On January 2, 1979, she noticed that the blood "started flowing real heavy, and I was passing blood clots, and I got scared." Plaintiff told her eldest daughter to call the Chicago fire department, which took her to the emergency room at the University of Illinois Hospital.

Plaintiff was admitted about 9:30 p.m., and she was seen at about 11 p.m. by defendant Alan J. Zucker, a first-year medical resident. Dr. Zucker examined plaintiff and noted that she had discharged about 30 cc's of blood with clots and that her vital signs were normal. Dr. Zucker diagnosed plaintiff's condition to be the result of retained products of conception, i.e., placenta that had not been discharged during birth. He administered oxytocin, which is used to contract the uterine muscles and control bleeding. When the oxytocin failed to stop the bleeding, Dr. Zucker concluded that a D & C would be required. Dr. Zucker called his supervisor, defendant Marcia Siegal, a third-year resident, who agreed with the diagnosis. Dr. Zucker performed the D & C at about 2 a.m. During the operation, Dr. Zucker noticed that the bleeding continued, and he called Dr. Siegal to the operating room because he suspected that he had perforated the uterus. Dr. Zucker also concluded that he had cut an artery, which can be life-threatening.

An exploratory laparotomy was performed to examine the extent of the damage, and the uterus and the right uterine artery were repaired. Plaintiff was discharged from the hospital on January 10, 1979. She returned as an outpatient on January 23 because she was still in some pain and was spotting. Two days later, she saw another physician, Percy Moss, and on January 29 was admitted to Cabrini Hospital, where she discovered that she had a bladder infection. Plaintiff was released on February 6, and she continued to see Dr. Moss until November 1982.

On December 24, 1980, plaintiff filed the present action. Trial began on March 26, 1984, and ended on March 30. The trial was a classic battle of experts. Plaintiff's theory, presented through her expert, Dr. William Matviuw, was that perforation of the uterus was negligence per se. Plaintiff's attorney summed up Dr. Matviuw's testimony as follows: Plaintiff's condition was stable and no emergency existed; Dr. Zucker's diagnosis was wrong; the D & C was the wrong course of treatment and it was negligently done; and all of this was the proximate cause of plaintiff's injuries.

The defense's expert, Dr. Gerald I. Zatuchni, testified that the perforation of the uterus, particularly after a birth, is a recognized complication and that there was no breach of the standard of care. He also testified that the diagnosis was correct, that the D & C was the proper course of treatment, and that it was performed properly and within the standard of care.

The jury returned a verdict in favor of the defendants. Plaintiff's post-trial motions were denied, and this appeal followed.

The issues presented for review are:

(1) Whether the trial court erred when it refused to allow plaintiff to read to the jury the contents of a nursing note that was part of the medical records at the hospital.

(2) Whether the trial court erred when it refused to allow plaintiff to read to the jury excerpts from medical textbooks.

(3) Whether the trial court erred when it ordered the plaintiff to alter a chart that was used during closing argument.

(4) Whether the trial court abused its discretion when it denied plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

I

Plaintiff's first point is that the court erred when it refused to let the plaintiff read the contents of a nursing note. The note read:

"1/3/79 12:45 a.m. . . . pad #2 in place, #1 saturated with bright red blood and small clots.

Jacqueline Patterson, R.N."

Plaintiff argues that the note impeaches the testimony of Dr. Zucker, who testified that the plaintiff had discharged about 30 cc's of blood when he first examined her. He later testified that plaintiff lost about 500-600 cc's of blood in the 4 1/2 hours before the D & C. Plaintiff argues that the note impeaches Dr. Zucker's testimony and should have been admitted.

• 1 The admission of medical records is governed by Supreme Court Rule 236(b) (94 Ill.2d R. 236(b)), which reads, in part:

"Rule 236. Admission of Business Records in Evidence

(b) Although medical records or police accident reports may otherwise be admissible in evidence under the law, subsection (a) of this rule does not allow such writings to be admitted as a record or memorandum made in the regular course of business."

The rule has been interpreted to mean that hospital records are admissible if a proper foundation has been laid, but they generally are not admissible without the testimony of the person who made the notation. (Khatib v. McDonald (1980), 87 Ill. App.3d 1087, 1097, 410 N.E.2d 266, appeal denied (1980), 81 Ill.2d 602.) The result of the foundation requirement is that hospital records can be admitted as a hearsay exception only if the records are cumulative of the in-court testimony of one who has personal knowledge. E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 803.11, at 578 (4th ed. 1984).

• 2 Under these rules, the trial court did not err in refusing to let plaintiff read the contents of the note for three reasons: (1) there was no foundation; (2) Dr. Zucker did not rely on the note in his testimony; and (3) plaintiff objected to the defense's reference to the note.

As to foundation, the record shows that the nurse who signed the note, Jacqueline Patterson, was unsuccessfully subpoenaed and never testified at trial. Hence, there could be no authentication of the note. See Wilson v. Clark (1981), 84 Ill.2d 186, 192, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L.Ed.2d 117, 102 S.Ct. 140.

Secondly, Dr. Zucker did not rely on the note in his testimony, so the note could not be introduced for impeachment purposes. ...


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