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Greene v. Rogers

OPINION FILED OCTOBER 2, 1986.

JAMES A. GREENE, EX'R OF THE ESTATE OF BERNADINE GREENE, DECEASED, PLAINTIFF-APPELLANT,

v.

DR. JAMES ROGERS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Will County; the Hon. Edward D. Smith, Judge, presiding.

PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This was an action brought by James A. Greene, as executor, for the wrongful death of his wife, Bernadine Greene, for medical malpractice against Silver Cross Hospital and Dr. James Rogers. The plaintiff alleged, among other things, that the hospital was negligent in not initially admitting Bernadine Greene into the coronary-care unit because of failure to diagnose her condition and by allowing her to be put through extensive physical testing when she was suffering from myocardial infarction. Further, that Dr. Rogers was also negligent by misdiagnosing her condition and prescribing certain physical activities which proximately caused her death.

The trial court awarded Silver Cross Hospital a summary judgment based on the grounds that the emergency-room physician, Dr. D'Arcy, was not an agent of the hospital, and a jury returned a verdict in favor of Silver Cross Hospital and Dr. Rogers on all other counts. Plaintiff appeals the summary judgment ruling of the trial court as well as raising numerous other issues for appeal.

Bernadine Greene was a 54-year-old female who weighed approximately 220 pounds. She had a history of high blood pressure, hypertension, and diabetes. Both of her parents had died of heart problems and one of her brothers had a heart problem. Mrs. Greene was admitted to Silver Cross Hospital on February 27, 1981. She was complaining of chest pains radiating into the arm and diaphoresis (sweating) from the day before. Dr. D'Arcy, the emergency-room physician, ordered one EKG and one cardiac enzyme test and admitted her to a regular hospital ward. While in the hospital under the care of Dr. Demus, she underwent X-rays, an upper G.I. series, and other diagnostic tests. With the possibility that Mrs. Greene's pain might be of a surgical nature, Dr. Demus, the attending physician, called Dr. Rogers as a surgical consultant to make an evaluation of Mrs. Greene. Dr. Rogers' evaluation took place at 9 a.m. on March 5, 1981. Dr. Rogers dictated a consultation in which he determined that Mrs. Greene was suffering from an esophageal hiatus hernia and gall stones. Dr. Rogers at that time informed both Mr. and Mrs. Greene of a way to alleviate Mrs. Greene's pain. After a meal and with a full stomach, she was to stand up on her toes and come down hard on her heels. Dr. Rogers, however, did not tell either Mr. and Mrs. Greene to perform the activity at that time. Dr. Rogers did not see Mrs. Greene after this consultation.

Another electrocardiogram and cardiac enzyme test were performed on Mrs. Greene sometime later in the day on March 5, 1981. The tests revealed conclusively for the first time the presence of a myocardial infarction, and Mrs. Greene was transferred to the hospital coronary care unit. Mrs. Greene expired at 12:55 a.m. on March 6, 1981. The subsequent autopsy revealed that Mrs. Greene died of a myocardial rupture, but was also found to have an esophageal hiatus hernia and gall stones. The autopsy was performed by Dr. Veenbas, a pathologist employed by Silver Cross Hospital, who was later a witness for the plaintiff at trial.

At the time the myocardium ruptured, the decedent was in bed in the intensive-care unit either asleep or resting. The cardiologist treating Mrs. Greene at the time of her death was Dr. Fitzpatrick. Plaintiff deposed Dr. Fitzpatrick prior to trial but did not call Dr. Fitzpatrick as a witness at trial. Dr. Fitzpatrick was called as a witness by the defendant hospital and testified that the physical activity exerted by Mrs. Greene in the hospital prior to her death was not responsible for her death. The doctor further testified that had the decedent been brought to the intensive-care unit earlier, the result would have been the same. Appellant asserts on appeal that Dr. Fitzpatrick violated the doctor-patient privilege by talking to the attorneys for the defendants and that the doctor was an undisclosed expert for the defendants.

Plaintiff, at the close of the evidence, submitted Illinois Pattern Jury Instruction, Civil, No. 15.01 (2d ed. 1971) (hereinafter IPI Civil 2d) the long-form instruction for proximate cause, which states:

"When I use the expression proximate cause I mean any cause which in natural or probable sequence produced the injury complained of. It may not be the only cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time which in combination with it caused the injury."

The court, however, gave the following defendants' instruction over plaintiff's objection:

"When I use the expression proximate cause I mean any cause which in natural or probable sequence produced the injury complained of."

Appellant now alleges that the trial court's instruction was in error. Further, appellant offered the following issues instruction:

"The plaintiff further claims that one or more of the foregoing was a proximate cause of denying Bernadine Greene a chance of survival."

The court, however, refused to give plaintiff's issues instruction and gave the following proximate cause paragraph:

"The plaintiff further claims that one or more of the foregoing was a proximate cause of Bernadine Greene's death."

The jury returned a verdict in favor of the defendants. Plaintiff then made a post-trial motion for a new trial on the grounds that the attorneys for the hospital agreed to act as the attorneys for an out-of-State witness and that they advised the witness not to testify in ...


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