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11/01/89 Julia Dixson, Adm'r of the v. University of Chicago

November 1, 1989

JULIA DIXSON, ADM'R OF THE ESTATE OF SHERWOOD DIXSON, DECEASED, PLAINTIFF-APPELLANT

v.

UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

546 N.E.2d 774, 190 Ill. App. 3d 369, 137 Ill. Dec. 829 1989.IL.1724

Appeal from the Circuit Court of Cook County; the Hon. Paul F. Elward, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. McNAMARA and LaPORTA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Plaintiff brought a medical malpractice action in the circuit court of Cook County against the defendant, the University of Chicago Hospitals and Clinics, alleging that the defendant was negligent and that its negligence proximately caused the death of plaintiff's husband. Following a trial before a jury, a verdict was rendered in favor of defendant. The trial Judge then denied plaintiff's motion for a new trial. Plaintiff now appeals the jury's verdict to this court.

On March 28, 1977, the deceased, Sherwood Dixson, asked his wife, the plaintiff here, to take him to the emergency room at the University of Chicago Hospitals and Clinics (University hospital) because he was experiencing "strange feelings" and was having hallucinations. The doctors at the University hospital found nothing physically wrong with Dixson and recommended that he have a psychiatric evaluation. Dixson agreed and checked himself into the psychiatric ward of the University hospital.

The next day, Dixson became agitated and was told to go to the isolation area. Dixson refused to go, so the nurses summoned security guards. Dixson then began voluntarily walking toward the isolation area, but became violent when he reached the door to isolation. Consequently, the security guards restrained Dixson, and a nurse gave him a shot containing five milligrams of Haldol, a tranquilizer. Shortly thereafter, Dixson appeared to experience cardiac arrest. A University hospital doctor telephoned plaintiff and told her that Dixson was in the cardiac care unit. The doctor told plaintiff to bring her family over immediately. When plaintiff arrived, the doctors asked her to sign a waiver so they could do a bypass on Dixson. Approximately 30 minutes later, however, plaintiff was informed that Dixson had died.

The cause of Dixson's death was initially listed as unknown pending further investigation. An autopsy was performed and tests for alcohol, barbiturates or tranquilizers, including Haldol, were negative. The medical examiner concluded that Dixson had died from "sickle cell crisis" and listed sickle cell crisis as the cause of death on Dixson's death certificate. Thereafter, on November 30, 1978, plaintiff, as administrator of Sherwood Dixson's estate, filed suit against the University hospital alleging medical malpractice and contending that the administration of Haldol caused Dixson's death. Plaintiff's complaint was subsequently amended four times.

Plaintiff's case finally went to trial in the circuit court of Cook County on January 22, 1988. Before the jury selection process began, defense counsel presented a motion to bar the testimony of Dr. Heller, one of plaintiff's experts, pursuant to Illinois Supreme Court Rule 220 (107 Ill. 2d R. 220). Defense counsel claimed that the trial court should bar Dr. Heller's testimony because he had not been revealed as an expert witness until January 15, 1988, one week before the case went to trial. In response, plaintiff claimed that she planned to call Dr. Heller to rebut the anticipated testimony of defendant's expert witness, who would assert that Dixson had died of sickle cell trait, and that she was unaware defendant was going to use that defense until December 29, 1987, when she deposed defendant's expert; therefore, her delay in disclosing Dr. Heller should be excused. However, the trial Judge granted defendant's motion, ruling that plaintiff had known for at least 10 years that the defendant would claim that Dixson died from sickle cell crisis and not from the injection of Haldol, inasmuch as sickle cell was listed as the cause of death on Dixson's death certificate. Accordingly, the trial court held there was no new information which would justify plaintiff's late disclosure.

The parties then proceeded to jury selection. The trial court briefly described the case and asked the jury venire whether they objected to a case such as the present one, a civil suit for money damages; whether they would be able and willing to sign a verdict for the plaintiff in the amount they thought fair if the plaintiff proved her case; and whether they would be able to sign a verdict for the defendant if plaintiff did not prove her case, even if she proved that her husband was injured. The trial court then asked the individual prospective jurors the following questions: have you or any member of your immediate family or a close friend ever been in any kind of an accident where anyone was hurt or claimed to be hurt and, if so, would you hold it against the parties here; have you or any member of your immediate family ever had any medical training and, if so, what kind, for how long, and was the training at a hospital; have you or any members of your immediate family or close friends ever worked or do they currently work for any hospital, clinic, mental health care facility or medical care provider; have you or any members of your immediate family or close friends worked as a security guard or do they currently work as a security guard and, if so, was it at a hospital; do you currently or have you had in the past any business association with any hospital, clinic, mental health care facility or medical care provider; and have you or any members of your family or close friends ever had any unsatisfactory experience with any doctor, hospital, clinic or health care provider.

Plaintiff's attorney then questioned the prospective jurors. Plaintiff's attorney told the prospective jurors that the case involved professional negligence and that there might be some evidence against nurses and security guards. He next asked the jurors if they would have any hesitance in awarding damages if the plaintiff proved her case, even though they might have relatives or friends who were nurses or security guards. After plaintiff's counsel had utilized this line of questioning on several prospective jurors, the trial Judge instructed plaintiff's counsel to stop telling the jurors what he thought the evidence would show and what plaintiff would ask for at the end of trial. Plaintiff's counsel argued that he had a right to ask those questions because all the prospective jurors had revealed a connection to a hospital, nurse or security guard and, therefore, he should be allowed to determine whether that connection might affect their judgment, inasmuch as he was asking for a verdict based on the professional negligence of a nurse or security guard. The trial Judge refused to allow plaintiff's counsel to continue his line of questioning, stating that the trial court had already asked the jury venire the same questions.

Following jury selection and opening arguments, the plaintiff presented her witnesses. Wendell Lovett testified that he was employed by defendant as a security guard on March 29, 1977, and was summoned to the psychiatric ward around noon to assist the other guards with a patient, who, Lovett said, was Dixson. When Lovett arrived at the psychiatric ward, four other guards were also present. Dixson was standing near the doorway to his room and was not violent. Lovett said that Dixson started walking toward the guards and became violent, striking Earl Robertson, another guard. The guards then restrained Dixson, holding him down on the floor on his back as he continued to struggle. Lovett said he heard someone say they had a shot to give Dixson if the guards could hold him still. Lovett did not remember who gave Dixson the shot, but thought it was injected in Dixson's hip. Lovett testified that Dixson calmed down after receiving the shot.

John Naughton and Earl Robertson, who were also security guards employed by defendant on March 29, 1977, testified next. Their testimony essentially corroborated Lovett's testimony, except Naughton did not remember anyone giving Dixson a shot. Robertson also said that he did not see the shot being given to Dixson, and he ...


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