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03/17/88 the Northern Trust Company v. St. Francis Hospital Et Al

March 17, 1988

STOLL, DECEASED, PLAINTIFF-APPELLANT

v.

ST. FRANCIS HOSPITAL ET AL., DEFENDANTS-APPELLEES (CHOWDARY ADUSUMILLI ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

THE NORTHERN TRUST COMPANY, as Ex'r of the Estate of Henry

522 N.E.2d 699, 168 Ill. App. 3d 270, 119 Ill. Dec. 37 1988.IL.378

Appeal from the Circuit Court of Cook County; the Hon. James E. Sullivan, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW and JOHNSON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, the Northern Trust Company, as executor of the estate of Henry Stoll (decedent), brought, in the circuit court of Cook County, a wrongful death action alleging medical malpractice against defendants St. Francis Hospital in Blue Island, Illinois, Medical Emergency Service Associates, Inc., Chowdary Adusumilli, M.D., and John Van de Roovaart, M.D. The trial court dismissed the individual physicians prior to trial. A jury returned a verdict in favor of the remaining defendants.

Plaintiff appeals from the judgment entered on the verdict. Plaintiff contends the trial Judge erred by: (1) granting summary judgment for defendants on the issue of actual agency between Dr. Adusumilli and St. Francis Hospital, (2) refusing several of plaintiff's tendered jury instructions, (3) limiting plaintiff's opening statement, (4) admitting various items and testimony into evidence which defendants did not reveal during discovery, and (5) allowing the issue of decedent's contributory negligence to go to the jury.

We affirm the judgment of the trial court.

Background

The trial adduced the following facts. On August 19, 1976, at 1:33 a.m., decedent, accompanied by his wife, entered the emergency room at St. Francis Hospital in Blue Island, Illinois. He complained of chest pain that radiated down both of his arms. A nurse on duty took a brief history of decedent, informed Dr. Adusumilli of decedent's symptoms, and ordered an electrocardiogram. The nurse testified that decedent appeared alert; his skin appeared warm and dry. Decedent lacked the breathing problems and severe pain associated with heart attacks. The orderly who administered the electrocardiogram testified that decedent's skin was warm, dry, and possessed normal color; decedent also was not short of breath.

Dr. Adusumilli examined decedent at 1:50 a.m. His record reflects that decedent had no difficulty breathing and had had similar pain on prior occasions due to a gastric disorder. Decedent felt better sitting up than lying down and felt better also after receiving an antacid, both consistent with a gastric disorder. Decedent had a prior normal electrocardiogram, and the electrocardiogram which he received that night did not conclusively show that he was having a heart attack.

Dr. Adusumilli telephoned decedent's family physician, Dr. Van de Roovaart, and reported to Van de Roovaart his findings. These included the fact that decedent's pain decreased with a change of position and a dose of antacid. Further, decedent's electrocardiogram did not conclusively show any signs of a heart attack.

Dr. Van de Roovaart told Dr. Adusumilli that he knew decedent well, had treated him on two prior occasions for similar pain, and that decedent was receiving treatment for ulcers. After listening to Dr. Adusumilli, Dr. Van de Roovaart diagnosed decedent's pain as resulting from his gastric disorder and not from a heart attack. Both physicians concurred in this diagnosis and agreed to discharge decedent.

Dr. Adusumilli discharged decedent at 3:15 a.m., with instructions that decedent see Dr. Van de Roovaart later that morning. Decedent walked out of the emergency room without pain and apparently healthy. Approximately two hours later, however, decedent lost consciousness at his home. At 5:30 a.m., he was returned to the hospital emergency room in cardiac arrest. Dr. Van de Roovaart was notified minutes later; he immediately admitted decedent and called in a heart specialist as a consultant. Decedent died at approximately 6:50 a.m.

On the day of decedent's death, Dr. Adusumilli was not an employee of the hospital, but rather was an employee of Medical Emergency Service Associates, Inc. . St. Francis Hospital hired MESA to provide it with emergency room physicians. The contract between the hospital and MESA granted MESA the sole right to select emergency room physicians and to establish their schedules. MESA paid the physicians and collected the fees for the physicians' services. The fees were the property of MESA. This contract was solely between the hospital and MESA; Dr. Adusumilli was not a party to this contract.

The contract between MESA and Dr. Adusumilli provided that Dr. Adusumilli would be an employee of MESA and not the hospital. In addition to paying their physicians and establishing schedules for them, MESA operated its own training program for its physicians and maintained its own separate libraries for them at each hospital where they practiced.

In December 1977, plaintiff filed its original complaint against Drs. Adusumilli and Van de Roovaart and St. Francis Hospital. The complaint alleged negligence arising not only from plaintiff's treatment in 1976, but also arising from a prior emergency room visit in 1974. The trial court granted the hospital's motion to dismiss. Plaintiff filed an amended complaint in September 1978. The amended complaint named the same defendants, but omitted the allegations of negligence arising from decedent's 1974 emergency room visit. In April 1980, plaintiff filed a second amended complaint, adding MESA as a defendant. Plaintiff alleged that Dr. Adusumilli was its agent.

In 1982, the trial court dismissed Dr. Adusumilli from the litigation pursuant to a settlement agreement. In May 1985, the trial court dismissed Dr. Van de Roovaart from the litigation, also with plaintiff's consent.

The hospital moved for summary judgment on the issue of whether Dr. Adusumilli was its actual agent. The hospital also sought an in limine order precluding plaintiff from asserting against it at trial a theory of apparent agency or agency by estoppel.

The trial Judge granted summary judgment for the hospital on the theory of actual agency. The trial Judge found no genuine issue of material fact regarding plaintiff's allegation that Dr. Adusumilli was the actual agent of the hospital. The trial Judge, however, denied the hospital's motion in limine on the issue of apparent agency. As a result, the cause proceeded to trial against the hospital on the theories that: (1) Dr. Adusumilli was the hospital's apparent agent; therefore, it was liable for his negligence, and (2) the hospital breached its own duty of care to decedent through its own employees, such as the emergency room nurse. The cause proceeded to trial against MESA on the theory that Dr. Adusumilli was its actual agent; therefore, it was liable for his negligence.

The cause was tried to a jury. In addition to the above-mentioned facts, the trial produced conflicting evidence that Dr. Adusumilli was negligent in his treatment of decedent. On June 10, 1985, the jury returned a verdict in favor of defendants. The trial Judge subsequently entered judgment on the verdict, awarded ...


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