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06/26/87 Jakovljevic, Deceased, v. Robert S. Kaminski

June 26, 1987





510 N.E.2d 1096, 157 Ill. App. 3d 638, 110 Ill. Dec. 65 1987.IL.894

Appeal from the Circuit Court of Cook County; the Hon. Warren D. Wolfson, Judge, presiding.


JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, P.J., and LORENZ, J., concur.


Plaintiff, Vera Vazirzadeh, administrator of the estate of Radoslav Jakovljevic, brought an action pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 1) to recover damages arising out of the death of Radoslav Jakovljevic occasioned by the alleged negligence of the defendant, Robert Kaminski, M.D., in the medical treatment of the decedent. Following a jury verdict, the entry of a judgment for the defendant and the denial of plaintiff's post-trial motion, plaintiff appeals, contending that the trial court erred (1) in admitting into evidence the defendant's testimony of a conversation between the defendant and the decedent; (2) in admitting into evidence the defendant's testimony of a conversation between the defendant and an unidentified nurse; (3) in refusing to bar or limit the testimony of a defense expert witness who was tendered for the first time after the plaintiff's case in chief; and (4) the verdict was against the manifest weight of the evidence.

On June 8, 1977, Radoslav Jakovljevic entered McNeal Memorial Hospital where he underwent knee surgery the following day. On June 15, 1977, he expired as a result of a pulmonary embolism. The plaintiff alleged that the defendant, Robert S. Kaminski, M.D., was negligent in that he failed to properly diagnose and treat post-operative symptoms of elevated temperature, rapid heart rate, shortness of breath and chest pain and that said failure was inconsistent with the established standard of care for a physician in the Chicago area in 1977.

The patient's symptoms were not disputed by the parties. The patient's chart showed entries by nurses on the evening of June 13, 1977, regarding his shortness of breath and chest pain. The entries stated that the pain was of short duration. The chart also indicated that the patient had an irregular pulse and shortness of breath on the morning of June 14, 1977.

The plaintiff called the defendant, Dr. Kaminski, to testify. Dr. Kaminski had seen the patient early in the afternoon of June 14, 1977. He noted the patient's shortness of breath and rapid heart rate on the chart. He wrote orders for two blood cultures, "stat," chest X ray and EKG, "today," intravenous antibiotics and "have Dr. Couropmitree," an internist, "see patient in consult." Dr. Kaminski testified that although the written order for the consultation did not contain the words "stat" or "today," he told an unidentified nurse to have Dr. Couropmitree see the patient "today." The plaintiff's objection to this testimony as being hearsay and without the proper foundation was overruled.

Dr. Kaminski further testified that he asked the decedent about the chest pain when he saw him that afternoon and that the decedent told him the pain was of short duration, was relieved by belching and was not significant. The plaintiff's objection that this testimony was incompetent under the Dead Man's Act (Ill. Rev. Stat. 1983, ch. 110, par. 8-201) was also overruled. Neither this alleged conversation between Dr. Kaminski and the decedent nor an evaluation of the decedent's chest pain was included in Dr. Kaminski's progress notes on the decedent's chart.

Dr. Kaminski testified that he considered the possibility of a pulmonary embolism on June 14, 1977, but thought knee infection and septicemia to be more likely diagnoses. He agreed that the demonstrated symptoms were all signs of pulmonary embolism and that he could have given the patient heparin prophylactically until such time as an embolism could have been ruled out. He instead ordered a consultation because of his concerns about septicemia or possible pulmonary or cardiac complications.

The plaintiff next called Nurse Salud, who testified that if a physician gave a verbal order which changed a written order from an unspecified time to "today" or "stat" it was the custom of the nurses to enter that change on the chart. She stated she called Dr. Couropmitree at 10 o'clock the evening of June 14, 1977.

Dr. Charles Rice, director of intensive care at Michael Reese Hospital, testified for the plaintiff as an expert witness. He explained that when a tourniquet is applied to a leg, as in surgery, venous stasis (sluggish blood flow in the veins) can occur. This can lead to a clot in the vein which becomes a pulmonary embolism if it breaks loose and travels to the lungs. This is a well-known complication of lower limb surgery. He described the symptoms, all of which were consistent with those observed in the patient, and explained that they can be of short duration or sporadic. If a physician even remotely suspected a pulmonary embolism, heparin should have been started. Had heparin been administered when the defendant saw the decedent on the afternoon of June 14, 1977, the patient would have had a 93% chance of survival. Dr. Rice testified that in his opinion the patient received substandard care.

The plaintiff called Dr. Saul Haskell, an orthopedic surgeon, whose testimony was similar to the testimony of Dr. Rice.

The plaintiff rested her case in chief on Thursday, December 1, 1983. Friday morning defendant's attorney informed plaintiff's attorney that he had an additional expert witness, Dr. Westenfelder, an internist with an infectious disease subspecialty. Plaintiff's attorney presented a motion to bar the testimony of Dr. Westenfelder. Plaintiff's attorney alleged that in response to his notice to produce the names of the defendant's expert witnesses before the start of the trial, counsel for the defendant had given only the name Dr. James Ahstrom. The defendant's counsel had mentioned Dr. Westenfelder to plaintiff's attorney but stated that he did not know whether he would call him as a witness because the doctor was out of town and they had not conferred. At that time the plaintiff's attorney was told by the defendant's attorney that if he called Dr. Westenfelder as a witness it would be only for the purpose of supporting the defendant's diagnosis of the decedent's infection and septicemia. Plaintiff's attorney became aware for the first time on Friday, December 2, 1983, that Dr. Westenfelder would be called by defendant to testify to additional matters. When the trial court refused to bar Dr. Westenfelder's testimony, plaintiff's counsel requested that his testimony be limited to the issue of infection. The court denied the request.

Plaintiff's attorney deposed Dr. Westenfelder on Saturday, December 3, 1983. Dr. Westenfelder testified the following Monday morning. In his testimony he made repeated references to the standard of care of the "non-internist." The standard was, in his opinion, lower than that of an internist and the defendant, he felt, acted in accordance with that standard. He was of the further ...

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