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09/01/87 Martha Yates, v. Adel El-Deiry Et Al.

September 1, 1987





513 N.E.2d 519, 160 Ill. App. 3d 198, 112 Ill. Dec. 105 1987.IL.1273

Appeal from the Circuit Court of Peoria County; the Hon. Joe McDade, Judge, presiding.


JUSTICE HEIPLE delivered the opinion of the court. BARRY, P.J., and STOUDER, J., concur.


The plaintiff, Martha Yates, underwent surgery at Proctor Community Hospital (hospital) on February 9, 1981, for repair to her left eardrum and removal of suspected cholesteatoma, a disease of the ear. The plaintiff was placed under general anesthesia. Dr. Adel El-Deiry (doctor) performed the surgery using a speculum and an operating microscope. During the operation, the doctor located a sac of cholesteatoma in the middle ear and removed it. When the doctor determined that the disease did not extend any further, he closed the operative site. A mastoid pressure dressing, which encircled the plaintiff's left ear and head, was applied by the doctor to stop the bleeding from the incision and prevent infection. The plaintiff was then sent to the recovery room.

The plaintiff's account of her post-operative condition was as follows. She testified that upon awaking from the operation she repeatedly complained to the nurses of a bad headache and knife-like pain in her forehead. She attempted to place her finger under the mastoid pressure dressing to relieve the tightness, but was unable to do so. She further stated that she was nauseous and vomiting continuously. According to the plaintiff, she did not see the doctor until the next morning at 11 a.m. when he came to remove the dressing. When the doctor began to remove the dressing, the plaintiff started to cry because her forehead hurt so badly. She stated that there were two marks on her forehead that were bloody and oozing, and that her right eye was puffy.

The doctor's account of plaintiff's post-operative condition varied considerably from that of the plaintiff. He stated that he visited the plaintiff in the recovery room following the operation to determine if the facial nerve was intact, as it can be damaged during the type of surgery the plaintiff underwent. The doctor determined that the nerve was undamaged. Later that evening, around 5:30 or 6 p.m., the doctor visited the plaintiff again to check on her condition. During the evening visit, the patient complained of some pain in the ear area, which the doctor said was to be expected. She complained of nothing unusual. The doctor also spoke with the nurse and ordered the nurse to give the plaintiff an IV because she was nauseous and vomiting. The order was noted on the chart at 6 p.m.

The doctor next saw the plaintiff at 11 a.m. on February 10, 1981, and removed the dressing. The plaintiff was making no unusual complaints, nor was she crying. The doctor noted two red marks on the plaintiff's forehead where the dressing had been. They were not bloody or oozing, nor did the gauze stick to the marks. He believed the marks were the result of an allergic reaction to the dressing. The right eye of the plaintiff was fine at the time the bandages were removed, but did swell upon release from the hospital. The swelling was attributed to an allergic reaction to antibiotics and was treated. After removing the mastoid pressure dressing, the doctor stated that he applied a smaller dressing to the ear, and discharged the plaintiff from the hospital.

The plaintiff visited the doctor on several occasions following the surgery, and asked him about the scars on her forehead. The doctor treated the scars with ointments and creams. When it was determined that the plaintiff's hearing had diminished in the summer of 1981, the doctor referred the plaintiff to a specialist in Memphis, Tennessee, Dr. John Shea, and sent his records and notes to Dr. Shea. Dr. Shea performed surgery on the plaintiff's left ear to remove cholesteatoma on October 1, 1981, and again on August 21, 1984. Follow-up care was provided by Dr. Shea for both surgeries.

On February 7, 1983, the plaintiff filed suit against the doctor alleging that he negligently failed to remove all of the disease in the left ear, negligently applied the mastoid pressure dressing too tightly, and failed to inform the plaintiff of the risk of facial scarring from the operation. Count II of the complaint alleged that the hospital failed to provide proper medical care and attention to the plaintiff. During the jury trial and over plaintiff's objection, Dr. John Shea testified on behalf of the doctor as an expert relative to the medical standard of care. He offered the opinion that the doctor did not deviate from that standard in either the procedure or the placement of the mastoid pressure dressing. Following trial, the jury rendered a verdict in favor of both the doctor and the hospital, upon which the court entered judgment. The plaintiff appeals. We reverse the judgment in favor of the doctor and remand for a new trial. We affirm the judgment in favor of the hospital.

The plaintiff first argues on appeal that the trial court committed reversible error in allowing the testimony of Dr. John Shea as an expert for the doctor because such testimony violated the doctor-patient fiduciary relationship that existed between the plaintiff and Dr. Shea. Alternatively, the plaintiff argues that the testimony should have been disallowed because the acts of the doctor's counsel in procuring the testimony went beyond recognized rules of discovery.

As was stated, the complaint in this matter was filed on February 7, 1983. At that time, Dr. Shea had performed one surgery on the plaintiff, and the plaintiff remained under his care. On March 25, 1983, the law firm representing the doctor -- Heyl, Royster, Voelker & Allen (defense firm) -- wrote Dr. Shea, informed him of its representation of the doctor, acknowledged his treatment of the plaintiff, and expressed a desire to discuss the plaintiff's medical condition with him. On March 30, 1983, Dr. Shea responded to the defense firm's letter by inviting it to Memphis, Tennessee, to "sit down and chat." A conference was held between Dr. Shea and an attorney from the defense firm on June 2, 1983. Five days later, the defense firm sent an affidavit to Dr. Shea, which allegedly reflected Dr. Shea's opinions in regard to the plaintiff, for his signature. Dr. Shea wrote back stating that he would sign the affidavit after part of it was clarified. He also requested "a copy of the suit and a complete list of the [plaintiff's] complaints against Dr. El-Deiry." A copy of the complaint was sent to Dr. Shea, along with the changed affidavit. On March 2, 1984, the defense firm asked Dr. Shea to review the doctor's depositions and requested a second conference with Dr. Shea. On April 30, 1984, Dr. Shea wrote to the defense firm in regard to his scheduled deposition on July 17, 1984, and acknowledged a scheduled meeting between himself and an attorney from the defense firm for July 16, 1984. On August 21, 1984, Dr. Shea performed a second surgery on the plaintiff. At no time did Dr. Shea reveal to the plaintiff his involvement with her legal adversary.

We agree with the plaintiff that the court should have disallowed the testimony of Dr. Shea, and that not doing so constituted reversible error. The case of Petrillo v. Syntax Laboratories, Inc. (1986), 148 Ill. App. 3d 581, cert. denied (1987), U.S. , 97 L. Ed. 2d 738, 107 S. Ct. 3232, is directly on point. Petrillo filed suit against the defendant alleging that he was injured as a result of consuming the defendant's infant formula. During discovery, Tobin, an attorney for the defendant, informed the trial court that he had engaged in ex parte conferences with Dr. Tomasi, one of Petrillo's treating physicians. " Ex parte " was defined by the court as including any Discussion that defense counsel has with a plaintiff's treating physician which is not pursuant to the authorized methods of discovery outlined by Supreme Court Rule 201. (107 Ill. 2d R. 201.) Upon Petrillo's motion, the court barred Tobin or other agents of the defendant from engaging in future ex parte conferences with any of plaintiff's treating physicians on the ground that it violated public policy. Despite ...

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