Appeal from the Circuit Court of Cook County; the Hon. Irving
R. Norman, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from the denial of a motion for a new trial after an adverse jury verdict in a medical malpractice action, raising as issues whether: (1) expert medical testimony was erroneously admitted in violation of Supreme Court Rule 220 (103 Ill.2d R. 220); (2) expert medical testimony was erroneously excluded as conjectural; and, (3) the circuit court gave the jury improper instructions on proximate cause.
On April 18, 1977, decedent, Edward Mazur, saw defendant Dr. Alfons Czarkowski, complaining of loss of weight, loss of appetite and a sore throat. After examining and testing decedent, Dr. Czarkowski made a preliminary diagnosis of jaundice and dehydration with suspected liver problems and arranged for decedent to enter defendant Lutheran General Hospital ("Lutheran General") that afternoon.
Dr. Czarkowski, who was leaving town, also made arrangements for defendant Dr. Hubert Gornstein to attend decedent. On admission to the hospital, the on-call medical resident took a complete history from, and gave a physical examination to, decedent. Tests run on decedent established that he was malnourished due to his alcoholism, but was not dehydrated. To treat decedent's malnutrition, food and oral fluids were ordered. Drugs were prescribed to prevent severe alcohol withdrawal and delirium tremens. Additional tests were ordered.
Over the next three days, April 19-21, 1977, decedent seemed to improve; however, at 6 a.m. on April 22, 1977, he was found dead in his bathroom. An autopsy performed that day, supervised by Dr. Jonas Valaitis, chairman of the division of pathology at Lutheran General, led the latter to conclude that decedent had died from bronchopneumonia and had also suffered from "much fatty change of the liver."
On December 30, 1977, Helen Mazur, decedent's wife, as administratrix of decedent's estate and individually, filed a complaint against defendants, Lutheran General, Dr. Gornstein, and Dr. Czarkowski in two counts for wrongful death and family expenses. This action eventually proceeded to trial on her fourth amended complaint, on the same theories, but naming Dr. Carl Hill, an additional treating physician, as another defendant.
Numerous and extensive depositions were taken in preparation for trial. Dr. Valaitis was deposed on October 28, 1983. Following that deposition, of his own volition, he performed further pathological tests on certain retained tissue and reported additional findings on November 2, 1983, in an official addendum. In that addendum he added "[f]atty embolism of [the] lungs involving capillaries and pulmonary arteries" as a cause of death in addition to bronchopneumonia. Fatty embolism results from the lodgment of fat globules in the pulmonary capillaries and arteries, interfering with the exchange of oxygen and blood, producing an oxygen deficiency and can be part of the syndrome known as "sudden death" according to Dr. Valaitis, and another expert, Dr. Harry Ruder, an internist who testified on defendants' behalves.
The jury found all defendants not guilty. In her post-trial motion for new trial, which was denied, and here on appeal, plaintiff raises three primary issues, claiming that: (1) the expert testimony of Dr. William Buckingham, a defense witness, was erroneously allowed to contradict his pretrial deposition testimony in violation of Supreme Court Rule 220; (2) the expert testimony of Dr. Edmund Lewis as to cause of death was erroneously excluded as conjectural; and (3) certain of the instructions were erroneously given.
• 1 Plaintiff urges first that defendants' expert witness, Dr. Buckingham, should have been precluded from testifying in contradiction of his deposition testimony, basing her contention on several provisions of Supreme Court Rule 220 (103 Ill.2d R. 220):
(1) Expert witness. Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:
(i) ascertain the identity of such witness, and
(ii) obtain from them the opinions upon which they may be requested to testify.
* * * Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.
(3) A party shall be required to seasonably supplement his answers to interrogatories propounded under this rule as additional information becomes known to the party or his counsel.
(d) Scope of testimony. To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with nor go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings."
Prior to Dr. Buckingham's trial testimony for the defense on March 15, 1985, evidence of the presence of fat emboli in decedent's lungs was received at trial on March 11, 1985, through plaintiff's witness, Dr. Valaitis, who stated that his addendum to his initial pathological report found the following: "Additional studies on this autopsy material revealed, on oil red fat stains, lungs containing fat emboli in the capillaries and pulmonary arteries. Therefore, in addition to bronchopneumonia [as a cause of death], [there was] fat embolism of lungs with the two complicating factors in a sudden death due to a fatty liver in this patient with a clinical history of chronic alcoholism." The record also reveals that on cross-examination, plaintiff's expert, Dr. Edmund Donoghue, agreed that massive pulmonary fat emboli were found in decedent and that such emboli probably would be sufficient to cause death, testimony which was given on March 13, 1985.
Dr. Buckingham's deposition testimony, taken on February 14, 1984, identified "the effects of * * * alcohol and undernutrition * * * primarily on his liver, although it affected his entire body," as the cause of decedent's death, which could have been complicated by Wernicke's polioencephalitis and/or delirium tremens. Dr. Buckingham was unaware of Dr. Valaitis' addendum to the post-mortem when he was deposed. It appears that plaintiff's counsel knew of this finding by Dr. Valaitis, however, having made the statement in the principal brief that "at the time of Dr. Buckingham's deposition the plaintiff recognized the significance of Dr. Buckingham's opinion as to the cause of death being different from that which was expressed [by Dr. Valaitis] in the addendum to the autopsy report." (Brief for appellant at 19.) This statement was discussed in the brief of appellees Lutheran General and Dr. Hill (brief for appellees at 15); however, no response was made thereto in plaintiff's reply brief. When advised of this statement in the brief at oral argument, plaintiff's counsel characterized it as a "mistake." Counsel's statement in appellant's brief nevertheless stands as an indicator that plaintiff was well aware of the posture of her case at the time of the Buckingham deposition. (See Dora Township v. Indiana Insurance Co. (1979), 67 Ill. App.3d 31, 32-33, 384 N.E.2d 595, aff'd (1980), 78 Ill.2d 376; McCormick, Evidence sec. 267, at 643 (2d ed. 1972); E. Cleary & M. Graham, Illinois Evidence sec. 802.9, at 539 (4th ed. 1984).) Rule 220(d) limits an expert's direct testimony at trial to the extent facts are known by him at the time he rendered his opinion in discovery proceedings; however, he is permitted to testify "as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings." Not only was he unaware of the addendum prepared by Dr. Valaitis containing the pulmonary fat emboli evidence, but no inquiry was made of Dr. Buckingham with respect to this evidence, even on a hypothetical basis at his deposition.
Defense attorneys first sent Dr. Buckingham a copy of the Valaitis addendum on March 4, 1985, two days before the trial started, more than a year after his original deposition. Plaintiff made a motion in limine on the morning of and prior to Dr. Buckingham's trial testimony seeking to prohibit him "from testifying to any opinion as to cause of death other than those expressed at his deposition and in particular any opinion that fat emboli may have played a part in Mr. Mazur's death," relying on both Rule 220 and supplemental interrogatories, which she had filed on February 18, 1985, and were never answered by defendants as follows:
"3. State whether Dr. William Buckingham has formed any additional opinions since the date of his discovery deposition, February 14, 1984. If the answer is yes, state (a) each additional opinion, (b) the basis for each additional opinion, and (c) the date on which the substance of each additional opinion became known to you."
The circuit court granted plaintiffs' limiting motion but allowed Dr. Buckingham to be questioned about pulmonary fat emboli in a hypothetical question, over plaintiff's objection. The question was based upon a hypothetical patient who was in all respects similar to decedent and Dr. Buckingham stated in response that in his opinion the hypothetical patient "died from a syndrome of sudden death associated with fatty liver mediated by fat emboli to the lungs from the liver." It is not at all incontestable that this testimony was required to have been deemed inconsistent with his deposition testimony since Dr. Buckingham there testified that death was attributable in part to the effects of alcohol on his liver, which also "affected his entire body." (Emphasis added.) ...