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02/01/89 Glenn H. Beaman Et Al., v. Swedish American Hospital

February 1, 1989

GLENN H. BEAMAN ET AL., PLAINTIFFS-APPELLANTS

v.

SWEDISH AMERICAN HOSPITAL ASSOCIATION OF ROCKFORD ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 522, 179 Ill. App. 3d 532, 128 Ill. Dec. 340 1989.IL.106

Appeal from the Circuit Court of Winnebago County; the Hon. Daniel D. Doyle, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. WOODWARD and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Plaintiff, Glenn H. Beaman, sought damages for injuries allegedly sustained as the result of the medical malpractice of defendants, Dr. Rudolph Vedo, Dr. Warren L. Lowry, and Swedish American Hospital Association of Rockford. Plaintiff's wife, Donna J. Beaman, filed a loss of consortium claim. The trial court granted Dr. Vedo's motion for summary judgment based on the ground that there was no expert testimony to show a deviation from the required standard of care of an anesthesiologist. This ruling was not appealed. The jury returned a verdict in favor of Dr. Lowry and the hospital on all remaining counts. On appeal, plaintiffs contend that the trial Judge erred by refusing to allow plaintiffs' treating physicians to give expert testimony as to a causal connection between the spinal anesthesia and plaintiff's ill health.

On March 19, 1979, plaintiff was admitted to Swedish American Hospital for urinary retention. A history was taken, at which time plaintiff stated that he had flu-like symptoms for the past nine days and had experienced tingling and pain in his thighs and lower back. A catheter was inserted, and plaintiff was scheduled to undergo prostate surgery on March 22, 1979. Dr. Lowry performed the surgery. Plaintiff testified that on the day following surgery he experienced a numbness in his feet and could not properly walk. This condition persisted when plaintiff left the hospital, and he was later examined by several other physicians as his condition became worse. His condition was eventually diagnosed as being myelopathy (a dysfunction of the spinal cord), although the cause was undetermined.

On March 17, 1983, plaintiffs filed a complaint alleging medical malpractice. The trial court, pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), set a time limit for the parties to disclose their expert witnesses. Plaintiffs identified Dr. Murray Rosenberg, an anesthesiologist, as their only trial expert. Dr. Rosenberg testified at the discovery deposition that plaintiff's condition was caused by an improper positioning of the plaintiff on the operating table. Approximately 11 months later, plaintiffs again identified Dr. Rosenberg as their only trial expert and also listed plaintiff's treating physicians as those who would testify to plaintiff's care and treatment based on their examinations and findings. During his second deposition, Dr. Rosenberg reiterated his earlier opinions and added that plaintiff's condition may have been caused by a viral infection such that the surgery should not have been performed at that time. Plaintiffs also disclosed the two treating physicians (Drs. Copeland and Campbell) who would testify.

One month before the trial date, and after the discovery cutoff date, plaintiffs filed additional Rule 220 answers which stated that Dr. Rosenberg would testify that plaintiff's condition may have been caused by the spinal anesthesia. Plaintiffs also stated that Dr. Campbell would testify as to the possible link between the anesthesia and plaintiff's condition. Both defendants filed a motion to bar new opinions of plaintiffs' experts, and the motion was granted. The trial court noted that plaintiffs had not previously disclosed any expert testimony concerning this liability theory concerning spinal anesthesia, and to allow such a theory at this late date would "severely prejudice the defendant."

The trial Judge also heard motions in limine, and determined that he would not allow any new liability theories to be presented at trial. The court also refused to allow any hypothetical questions directed to the treating physicians without first obtaining court authorization. Plaintiffs filed a motion to reconsider the trial court's ruling, arguing that treating physicians were not experts under Rule 220, and thus the disclosure requirement does not apply. This motion was denied. On October 28, 1987, the jury returned a verdict in favor of both defendants. Plaintiffs' motion for a new trial was denied.

On appeal, plaintiffs contend that the trial court committed reversible error by refusing to allow plaintiffs' treating physicians to testify as experts in a medical malpractice action. Plaintiffs make this claim by stating that the treating physicians did not come within the purview of Rule 220, and thus there was no need to comply with Rule 220. That rule provides:

"In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party . . .." (107 Ill. 2d R. 220(b)(1).)

The rule defines an expert witness as:

"person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an ...


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