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03/01/94 GLORIA GLASSMAN v. ST. JOSEPH HOSPITAL

March 1, 1994

GLORIA GLASSMAN, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF SHELDON GLASSMAN, DECEASED, PLAINTIFF-APPELLANT/CROSS-APPELLEE,
v.
ST. JOSEPH HOSPITAL, DEFENDANT-APPELLEE/CROSS-APPELLANT, AND DAVID O. MONSON, M.D., AND MILTON WEINBERG, JR., M.D., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable James S. Quinlan, Judge Presiding.

Rehearing Denied April 21, 1994. Petition for Leave to Appeal Denied October 6, 1994.

McCORMICK, DiVito, Hartman

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff, Gloria Glassman, individually and as special administrator of the estate of Sheldon Glassman, deceased, sued St. Joseph Hospital (the hospital), Dr. David Monson and Dr. Milton Weinberg, Jr., (the surgeons) for medical malpractice related to heart surgery which led to Sheldon Glassman's brain damage. The trial court entered judgment on the jury's verdicts in favor of the surgeons andagainst the hospital, assessing total damages of $51,764. Plaintiff appeals from both judgments, and the hospital cross-appeals from the judgment against it.

We find sufficient evidence to support the verdicts, and we find that the trial court committed no reversible error in its many rulings both prior to and in the course of the trial. Therefore we affirm the judgments.

Sheldon Glassman had chest pains in the fall of 1979, so he went to see Dr. Herman Eisenberg. Dr. Eisenberg had been Sheldon's personal physician for years, and he was also the uncle of Sheldon's wife, Gloria Glassman. Sheldon was a certified public accountant who owned an accounting firm. Dr. Eisenberg subjected Sheldon to a stress test, which indicated heart irregularities. Dr. Eisenberg admitted Sheldon to the hospital for an angiogram. The cardiologists who performed the angiogram on November 1, 1979, found the arteries blocked as a result of arteriosclerosis. The cardiologists recommended bypass surgery to repair the diseased arteries as soon as possible. The surgeons looked at Sheldon's medical record and agreed that he needed coronary artery bypass surgery.

The surgeons performed the operation on November 6, 1979. The anesthesiologist used enflurane as the anesthetic. After opening Sheldon's chest, Dr. Monson inserted a tube into the aorta from a heart-lung machine, and then he inserted a tube into the vena cava to drain the blood into the heart-lung machine. The machine performed the work of the heart and lungs, oxygenating the blood and pumping it into the aorta to circulate through the body. The machine contained two liters of a saline solution which the machine gradually added to the bloodstream. The surgeons ordered assistants to add to the saline solution an anticoagulant and 12 grams of oxacillin, a penicillin derivative, as a prophylactic antibiotic.

The surgeons cooled the body to 85 degrees and stopped the heart for the operation. Monson opened a coronary artery and removed the plaque from it, then attached one end of a healthy vein which Dr. Weinberg removed from Sheldon's leg to the artery. Monson attached the other end of the vein to the aorta. The operation, which took more than four hours, went well.

The surgeons accompanied Sheldon to the intensive care unit (ICU), but they left to perform another surgery shortly thereafter. Monson then went to Rush-Presbyterian-St.Luke's Medical Center (Rush) to perform two more surgeries, leaving Sheldon in Weinberg's care. The surgeons, by written order, instructed nurses to take vital signs, including temperature, pulse and respiration, every 15 minutes while Sheldon was in the ICU.

Nurse Eugene Shaw took care of Sheldon in the ICU on November 6, 1979, immediately following surgery. At 11 a.m. he charted Sheldon's temperature as 99.8 degrees. At 11:30 a.m. he observed total body shivering, which is a normal response for a patient coming out of heart surgery, while his body is warming to a normal temperature. At noon Sheldon's temperature was 100.6, and by 1 p.m. it was 102 degrees. Weinberg ordered administration of Tylenol to control the fever. When Shaw next took Sheldon's temperature at 2 p.m., the fever had risen to 105.3 degrees. Weinberg ordered more Tylenol and a hypothermia mattress.

Despite these measures, at 3 p.m. Sheldon's temperature was still 105.3 degrees. Nurse Beth Kingston relieved Shaw at 3:30 p.m., and she noted that Sheldon showed extra-ocular movements. Kingston noted further shivering around 4 p.m. At 4:15 Weinberg ordered a small dose of Thorazine, also as a measure to reduce fever. At 4:25 Weinberg ordered Kingston to administer 100 milligrams of Dilantin, an anticonvulsant. Sheldon's temperature rose to 106 degrees, and Kingston began taking Sheldon's temperature every half hour as his temperature fell slowly to 102.6 degrees by 8 p.m. At 5:15 Sheldon opened his eyes and Kingston observed more extra-ocular movement. Weinberg ordered another 100 milligrams of Dilantin.

Although most heart surgery patients wake up within a few hours following surgery, Sheldon remained unconscious. Between 6 and 7:30 p.m. he experienced a seizure, and Weinberg requested consultation with Dr. Marsha Horwitz, a neurologist, who arrived at 7:30. Sheldon then experienced a grand mal seizure. Horwitz ordered 800 additional milligrams of Dilantin immediately, to be followed with 200 more milligrams Dilantin 45 minutes later.

Despite the anticonvulsant medication, Sheldon experienced another seizure at 8:45, and Kingston administered another 200 milligrams Dilantin. After Horwitz left, Sheldon experienced grand mal seizures at 9:15 and 9:45 p.m. Kingston notified Horwitz after 9:45, and Horwitz called back to order, according to the hospital record,

"If pt has another seizure in next 1/2 [hour] give 200 mg phenobarb IM -- then if he seizures within the next 4 [hours] please repeat with 200 mg IM phenobarb."

Sheldon had another generalized seizure at 10:05 p.m. Kingston administered the phenobarbital intramuscularly, as ordered. At 10:40 Sheldon had another seizure, followed by another at 11:10. Kingston did not further medicate Sheldon or notify any physician about the seizures.

Nurse Joan Luchetti relieved Kingston at 11:30 p.m. She observedSheldon's generalized seizures at midnight and at 12:20 a.m. on November 7, but she did not administer medications or notify the physicians. Luchetti contacted Weinberg around 1:00 a.m. when Sheldon's central venous pressure rose. She called him again at 1:45 following a violent seizure, in which Sheldon began thrashing. She administered 200 milligrams phenobarbital at 2:00 a.m.

Sheldon next had a generalized seizure at 4:15 a.m. Luchetti neither administered medicine nor contacted Sheldon's doctors. At 7 a.m. Sheldon had another seizure, but he received no medication. Before 8 a.m. Sheldon had another seizure, and an hour later he received maintenance doses of 100 milligrams Dilantin and 200 milligrams phenobarbital. Sheldon continued to experience seizures, without regaining consciousness, throughout the day on November 7, 1979.

When Sheldon regained consciousness on November 9, 1979, he did not know where or who he was. He had suffered severe permanent diffuse brain damage. He never again worked as an accountant, nor could he hold any steady employment.

On September 2, 1981, Sheldon and Gloria sued the hospital, the surgeons, the cardiologists, the anesthesiologist and the manufacturer of the heart-lung machine. After extensive discovery on theories of equipment malfunction and negligence of the anesthesiologist and the cardiologists, Sheldon and Gloria voluntarily dismissed the suit against the manufacturer and the cardiologists. The trial court granted the anesthesiologist's motion for summary judgment. Sheldon died in July 1988, more than a year prior to trial, of causes unrelated to this suit. The trial court appointed Gloria special administrator of Sheldon's estate for purposes of bringing this suit. Thus, Gloria was the sole plaintiff at trial, acting both on her own behalf and as administrator of the estate, and the only defendants at trial were the hospital and the surgeons.

In the complaint that formed the basis for the trial, plaintiff alleged that the surgeons (1) ordered an excessive dose of oxacillin; (2) failed to take proper measures to control Sheldon's fever after the operation; (3) misdiagnosed and therefore improperly treated Sheldon's condition; (4) administered inadequate anticonvulsants prior to 7:30 p.m. on November 6, 1979; (5) on the advice of Dr. Horwitz ordered inadequate anticonvulsants after 7:30 p.m.; (6) failed to properly monitor care after Horwitz became involved in the case; and (7) failed to properly supervise subsequent care for Sheldon. Plaintiff alleged that the hospital was responsible for the nurses who (1) failed to follow the surgeon's orders; (2) misinterpreted Horwitz's 10 p.m. order for phenobarbital, and therefore administered the dosages later than ordered; and (3) failed to notify the surgeons about the seizures.

Following a lengthy trial the jury returned a verdict in favor of both surgeons, and it found for plaintiff against the hospital, assessing damages for Gloria, individually, of $1,764 for medical expenses, and nothing for loss of services or companionship. The jury also assessed damages in favor of Sheldon's estate in the amount of $50,000 for pain and suffering resulting from the injury caused by the hospital's negligence, but assessed no damages for disability or lost earnings.

Plaintiff appeals from the judgments, and the hospital cross-appeals from the judgment against it. The hospital points out that much of plaintiff's appeal will be moot if we find in favor of the hospital on the cross-appeal. Therefore, we first address the cross-appeal, in which the hospital argues that the court should have granted its motion for judgment notwithstanding the verdict.

I.

Plaintiff's expert, Dr. Gastone Celesia, testified that nurses at the hospital violated the standard of care between 6 and 7:30 p.m. on November 6, 1979, when Sheldon had a seizure and the nurses failed to notify doctors of the seizure. The seizures should have been stopped right away with anticonvulsant medication, "because if the seizures do persist, they become more difficult to control," and because seizures alone "may produce brain damage, permanent."

Plaintiff showed Celesia the 10 p.m. order for 200 milligrams phenobarbital, with an additional 200 milligrams if the patient seizes within the following four hours. Plaintiff asked "whether the phenobarbital regimen set forth on that order is adequate for Sheldon Glassman in view of his condition at 10:00 p.m." Celesia answered that to a reasonable degree of medical certainty, the order for 200 milligrams phenobarbital given intramuscularly with a followup dose sometime later was an inadequate dose given in the wrong manner. The medicine should have been administered intravenously, so it could work faster, and the doctor should have ordered a loading dose of 1500 milligrams. A loading dose is the amount of a drug needed to achieve the blood level which should have therapeutic effect.

The hospital objected to this testimony on grounds that under Supreme Court Rule 220 (134 Ill. 2d R. 220), Celesia could not give an opinion on whether the nursing staff properly interpeted Horwitz's order. Plaintiff responded that he was "not asking the interpretation of the order." The hospital in its brief purports to quote from the transcript a lengthy Discussion following this remark. The Discussion is not on the pages cited in the brief. We have been unable to find in the record most of the further remarks the hospital attributes to plaintiff's counsel. The trial court overruled the objection.

Dr. Celesia testified that in his opinion the order for 200 milligrams phenobarbital administered intramuscularly at 2 a.m. was insufficient to meet the standard of care. Nurses should have notified the doctors following Sheldon's seizures at 10:40 p.m., 11:10 p.m., midnight, 12:20 a.m. and 4:15 a.m. The nurses' failure to notify the doctors of the seizures Sheldon suffered overnight on November 6 and 7, 1979, contributed to the brain damage.

The hospital's attorney asked Celesia whether "the failure to notify a physician at 8:45 and at 9:15 caused this patient injury." Celesia answered: "Yes. He kept fitting, yes."

The hospital's attorney then asked:

"If Dr. Weinberg were to testify that it is his opinion he was kept fully apprised of this patient's condition at all times on the 6th and the morning hours of the 7th, would that change your opinion as to whether the nurses in that time frame violated the standard of care for nurses by failing to keep the physician advised of the patient's condition?"

Celesia answered: "In the hypothetical case he was fully apprised, then it would be okay." On redirect he clarified that if the nurses failed to notify the doctors following seizures at 10:40 and 11:10 p.m. on November 6, then the nurses "did not properly notify the doctor in that hypothetical situation." And if the nurse failed to notify the doctors of further seizures occurring between midnight and 7 a.m. on November 7, then the doctor was not fully apprised of the situation.

Dr. David Treiman explained that status epilepticus is a condition in which a patient has a series of seizures. It is formally defined as "two or more seizures without full and complete consciousness between seizures." The seizures themselves may cause brain damage.

In Treiman's opinion, Dr. Weinberg should have considered status epilepticus as a possible diagnosis by 5:15 p.m. on November 6, 1979. This condition was a medical emergency which should have been treated with "large doses [of] anticonvulsant drugs given intravenously until the clinical seizure activity stops and the patient starts awakening." The 100 milligram dose of Dilantin Sheldon received at 4:25 p.m. on November 6 was inadequate, and it was a deviation from the standard of care. Weinberg should have given a loading dose of 1600 milligrams Dilantin. The failure to administer a full loading dose harmed Sheldon by allowing his seizures to continue for more than a day.

Dr. Treiman testified that Sheldon was certainly in status epilepticus by 7:30 p.m. on November 6. Although Treiman agreed that the diagnosis of status epilepticus may be ambiguous in some situations, he never found any ambiguity in application of the definition of statusepilepticus to Sheldon's condition at 7:30 p.m. Weinberg deviated from the standard of care when he neither diagnosed status epilepticus nor obtained assistance of a doctor who could come to that diagnosis. Dr. Horwitz deviated from the standard of care by failing to diagnose status epilepticus. Each deviation from the standard of care harmed Sheldon by permitting the seizures to continue: the longer seizures continue, the more difficult they are to stop.

After 9:15 p.m. on November 6, when the 1400 milligrams Dilantin Sheldon had received failed to stop the seizures, in Dr. Treiman's opinion the standard of care required doctors to take further steps to control the seizures. The doctors could give more Dilantin, or they could give a loading dose of another drug, such as phenobarbital. For Sheldon a loading dose of phenobarbital would have been about 1800 milligrams. The phenobarbital administered to Sheldon on November 6 and 7, 1979, was insufficient to meet the standard of care. The deviations from the standard of care on both November 6 and 7 contributed to the brain damage Sheldon suffered.

Nurse Kingston testified that when Dr. Horwitz ordered 200 milligrams phenobarbital by phone, Kingston understood the order to mean she should administer 200 milligrams if the patient seized within a half hour, and if there were additional seizures over the next four hours she should give the patient another 200 milligrams at the end of the four-hour period. Nurse Luchetti testified that she interpreted Horwitz's order the same way. She did not call Dr. Weinberg after each seizure because she saw that an anticonvulsant had already been ordered.

Dr. Horwitz testified on direct examination that the nurses correctly gave Sheldon phenobarbital at 10:15 p.m. on November 6 and 2 a.m. on November 7, in full compliance with her order. On cross-examination, however, she said that the nurses failed to comply with the order by failing to administer the second phenobarbital dose immediately after the seizure at 10:45 p.m., 30 minutes after Sheldon received the first dose of phenobarbital.

Counsel for the hospital asked Dr. Weinberg whether, when he came to the hospital on November 7 and reviewed the chart, he felt that the information he received from the nurses overnight was "generally consistent with what you found recorded in the chart as to what had gone on with that patient." He answered, "Yes, I think. I don't remember." Counsel never asked, and Weinberg never said, that the nurses kept him fully apprised of Sheldon's condition.

The hospital contends that the evidence properly before the jury cannot support the jury's verdict for plaintiff. Plaintiff argued at trial that Dr. Horwitz's testimony established that the nurses misinterpretedher 10 p.m. order and therefore they delayed administration of an anticonvulsant, and the testimony of Dr. Treiman and Dr. Celesia established that the delay in administration caused some additional harm to Sheldon. The hospital claims that the trial court should have held that plaintiff was estopped from making this argument insofar as it relies on Celesia's testimony, and that this use of Celesia's testimony violates Rule 220. The hospital advances this issue solely as grounds for judgment notwithstanding the verdict; the hospital expressly asks this court not to grant a new trial, even if admission of Celesia's testimony was error.

The court should grant judgment notwithstanding the verdict only if all the evidence, viewed in the light most favorable to the verdict, so overwhelmingly favors the party seeking judgment that no contrary verdict could ever stand. ( Hoem v. Zia (1992), 239 Ill. App. 3d 601, 627, 606 N.E.2d 818, 179 Ill. Dec. 986.) The jury here could have found the hospital liable for the misinterpretation of the order even without Celesia's testimony, from the testimonies of Dr. Horwitz and Dr. Treiman. Horwitz said that the nurses delayed administration of the phenobarbital she ordered by three hours. Treiman testified that delay in administering anticonvulsants can harm a patient, because any delay in stopping seizures makes the seizures harder to stop thereafter.

Moreover, Celesia's testimony did not violate Rule 220, and the trial court properly refused to hold plaintiff estopped from relying on Celesia's testimony for this issue. Plaintiff's attorney said only that he would not use Celesia's testimony to establish that the nurses misinterpreted Horwitz's order, which is to say that his testimony would not go to the standard of care on this issue. Plaintiff never attempted to use Celesia's testimony to establish the standard of care on this issue, nor could he have so used Celesia's testimony, since Celesia never gave any opinion concerning the proper interpretation of the order. Plaintiff never said that she would not use Celesia's testimony to show that the misinterpretation caused injury. Hence, there is no basis for estopping plaintiff from making the argument she actually made. Celesia said consistently in both his discovery deposition and his testimony that the delay in the administration of proper anticonvulsant medication causes harm because the longer the seizures go untreated, the more difficult they are to stop, and each seizure can cause brain damage. Thus, Celesia's testimony did not violate Rule 220.

The hospital also argues that the evidence cannot support a finding that the failure to notify the physicians constituted a deviation from the standard of care. Celesia stated in both hisdiscovery deposition and in his evidence deposition that the nurses deviated from the standard of care by failing to promptly notify doctors of each seizure, and this failure caused injury. The hospital contends that this testimony is a nullity because Celesia also testified that in the hypothetical case that the nurses kept the doctors fully apprised of Sheldon's condition, their conduct in that respect did not violate the standard of care. The hospital claims that the undisputed evidence proves that the nurses kept the doctors so apprised.

Nurses Kingston and Lucchetti testified that they observed multiple seizures overnight on November 6 and 7 and they did not contact the doctors following most of those seizures. Celesia testified that if they failed to contact the doctors after any seizure, they failed to keep the doctors fully apprised, so they violated the standard of care. Even Dr. Weinberg did not testify that the nurses kept him fully apprised. The closest Weinberg's testimony came was when the hospital's attorney asked whether, when he came to the hospital on November 7, Weinberg felt that the information he received from the nurses overnight was "generally consistent with what [he] found recorded in the chart." Weinberg answered, "Yes, I think. I don't remember." This equivocal testimony is not an adequate basis for judgment notwithstanding the verdict.

The jury could have found for plaintiff and against the hospital consistently with its decision for the surgeons on all charges, either because nurses failed to notify the doctors overnight of the seizures, or because nurses misinterpreted Dr. Horwitz's 10 p.m. order and therefore delayed medication. The trial court correctly denied the hospital's motion for judgment notwithstanding the verdict.

II.

We turn next to plaintiff's appeal. Plaintiff advances 40 separate trial rulings as grounds for reversal. Plaintiff simply lists many rulings in her brief, with minimal argument and, for many rulings, with no citation to authority.

" reviewing court is entitled to have the issues on appeal clearly defined, including the citation of pertinent authority and the presentment of cohesive legal argument. [Citations.] Further, a reviewing court is not a depository in which an appellant may dump upon the court the entire matter of pleadings, argument, and research." Hassan v. Wakefield (1990), 204 Ill. App. 3d 155, 159, 561 N.E.2d 1160, 149 Ill. Dec. 464.

We will not address the issues for which plaintiff provides no citation to authority. We group the issues with adequate citations as those pertaining to pretrial rulings and those pertaining to trialrulings. We then separately address plaintiff's motion for a new trial on damages only.

A. Violation of Physician-Patient Privilege

Plaintiff moved in limine to bar defendants from calling Dr. Eisenberg as a witness because of pretrial communication between the surgeons' attorneys and Dr. Eisenberg, Sheldon's treating physician. On January 8, 1982, the surgeons' attorney met with Eisenberg and an attorney who worked for the firm which represented plaintiff at the time. Soon after the meeting the surgeons' attorney sent Eisenberg, but not plaintiff's attorney, a letter accompanied by an affidavit. In the letter counsel said:

"In the aftermath of our conference of January 8, 1982, I have prepared an affidavit, which I would like you to review and sign. * * * I think the affidavit accurately sets out your opinion and I am hopeful that at some point it will short-circuit the need for lengthy depositions and court proceedings."

Eisenberg signed the affidavit, which stated: "To a reasonable degree of certainty, there was no deviation from the accepted standard of medical and surgical practice on the part of Dr. Monson [or] Dr. Weinberg * * * in the care rendered * * * for Sheldon Glassman." The surgeons' attorney sent plaintiff's attorney a copy of the affidavit in March, 1983, about a year after the conference.

The trial court held an evidentiary hearing on the motion in limine. Eisenberg remembered only that there may have been some such Discussion in his office, and he identified his signature on the affidavit. Plaintiff's principal attorney at the time of the meeting testified that he received advance notice of the meeting with Eisenberg, and he believed that another attorney from his office attended because he could not. The attorney for plaintiff who attended the meeting remembered only that he had met Eisenberg somewhere before, possibly at the meeting on January 8, 1982. The surgeons' attorney testified that the meeting was brief. Although he could not recall specifically much of the conversation, he was sure that the contents of the affidavit did not "go beyond in any way the conference" of January 8.

The trial court found that the meeting was not an ex parte Discussion with a treating physician because an attorney for plaintiff was present. However, the court found that the letter and accompanying affidavit constituted an improper ex parte communication. The court barred use of the affidavit, but it did not bar defendants from calling Eisenberg as a witness.

In Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 596, 499 N.E.2d 952, 102 Ill. Dec. 172, the court held that in order to preserve the sanctity of the physician-patient relationship, ex parte Discussions between defense attorneys and plaintiffs' treating physicians were prohibited. The court restricted the defendant to formal discovery from plaintiff's physician. Courts applying Petrillo have expressly held that its reasoning applies to ex parte contacts which occurred before the court announced the Petrillo decision ( Karsten v. McCray (1987), 157 Ill. App. 3d 1, 14-15, 509 N.E.2d 1376, 109 Ill. Dec. 364), and it prohibits ex parte letters from defense counsel to a plaintiff's doctors ( Nastasi v. United Mine Workers of America Union Hospital (1991), 209 Ill. App. 3d 830, 839, 567 N.E.2d 1358, 153 Ill. Dec. 900).

In Almgren v. Rush-Presbyterian-St. Luke's Medical Center (1992), 240 Ill. App. 3d 585, 594, 608 N.E.2d 92, 181 Ill. Dec. 19, the court explained that the therapist-patient privilege, like the physician-patient privilege, "establishes plaintiff's right to prevent disclosure from [plaintiff's doctor] to defendant's attorney of information unrelated to the case but potentially damaging to plaintiff. That right cannot be protected if defendant's attorney is permitted private Discussions with [plaintiff's doctor]." The court in Almgren expressly approved use of alternatives to strict compliance with formal discovery, if the court can find "some other means of protecting plaintiff's right to limit disclosure of potentially damaging matters. Thus, the trial court could permit plaintiff, or her attorney, to be present at all Discussions between defense counsel and [plaintiff's doctor]." Almgren, 240 Ill. App. 3d at 594.

Eisenberg met with an attorney for the surgeons and plaintiff's attorney in 1982 to discuss informally Eisenberg's views on the case. Under Almgren, the presence of plaintiff's attorney was sufficient to protect plaintiff's interests, so the conference did not violate Petrillo.

The surgeons' attorney then sent Eisenberg a letter and an accompanying affidavit, without sending copies first to plaintiff's attorney. Under Nastasi, this ex parte contact violated Petrillo. ( Nastasi, 209 Ill. App. 3d at 839.) The trial court has discretion to determine an appropriate sanction for a Petrillo violation. ( Burns v. Michelotti (1992), 237 Ill. App. 3d 923, 930, 604 N.E.2d 1144, 178 Ill. Dec. 621.) In Nastasi defense counsel, ex parte, sent plaintiff's doctor articles supporting defendant's theory of the case. The court found that defendant sought to influence the doctor's testimony improperly with the letters, and therefore the court held that the doctor's tainted testimony should have been excluded. Nastasi, 209 Ill. App. 3d at 840.

In Mahan v. Louisville & Nashville R.R. Co. (1990), 203 Ill. App. 3d 748, 561 N.E.2d 127, 148 Ill. Dec. 821, one of plaintiff's treating physicians spoke todefense counsel ex parte for no more than 30 seconds prior to the doctor's deposition. The trial court permitted the doctor to testify and the appellate court affirmed the judgment for defendant, holding that "the communication between defendant's attorney and plaintiff's physician could in no way have jeopardized" the confidentiality of the physician-patient relationship. Mahan, 203 Ill. App. 3d at 754.

Here the trial court ruled that the affidavit was the product of prohibited ex parte contact, and therefore defendants could not in any way use the affidavit. However, the court found that the ex parte contact did not taint the doctor's testimony otherwise, since the letter and the affidavit did not go beyond the matters discussed at the 1982 meeting which did not violate the physician-patient privilege. The letter was not an improper attempt to influence the substance of the doctor's opinions; it was only an improper effort to procure an affidavit. (See Burns, 237 Ill. App. 3d at 931-32.) Therefore the trial court held that Eisenberg could testify for defendants, even concerning matters discussed at the 1982 meeting, as long as defendants did not attempt to use the affidavit. The trial court appropriately exercised its discretion to fashion a sanction which addressed plaintiff's legitimate concern for preservation of the physician-patient privilege. See Burns, 237 Ill. App. 3d at 932.

B. Discovery of Records of Other Patients

Plaintiff sought discovery of partial medical records, with the patients' names and identifying numbers deleted, for any patient who underwent surgery by the same surgeons and who experienced difficulties similar to Sheldon's. Defendants claimed that such records were protected by the physician-patient privilege. The trial court denied plaintiff's motions to compel discovery and barred plaintiff from referring to the treatment the surgeons provided other patients on November 6, 1979. Plaintiff contends that the ruling was reversible error.

In Ekstrom v. Temple (1990), 197 Ill. App. 3d 120, 553 N.E.2d 424, 142 Ill. Dec. 910, the trial court ordered the defendant hospital to produce medical records of some patients not parties to that action, with the names of the patients deleted. The appellate court reversed, finding that the statutory physician-patient privilege prevented production of records of non-party patients. ( Ekstrom, 197 Ill. App. 3d at 130; see Ill. Rev. Stat. 1987, ch. 110, par. 8-802.) The court held that deletion of the patients' names "may not sufficiently protect the confidentiality to which the nonparty patients are entitled." ( Ekstrom, 197 Ill. App. 3d at 130.) This reasoning fully applies here. Even with the deletion of identifying numbers along with names, the patients' confidentiality may be compromised.

Plaintiff asks this court to overrule Ekstrom and related precedents and follow cases from other states instead. The cases on which plaintiff relies did not apply the Illinois statutory physician-patient privilege. (See, e.g., Hyman v. Jewish Chronic Disease Hospital (1965), 15 N.Y.2d 317, 258 N.Y.S.2d 397, 206 N.E.2d 338.) We believe Ekstrom correctly interprets the physician-patient privilege in Illinois. The trial court properly denied plaintiff's motion to compel discovery of the records sought here.

C. Dr. Weinberg's Admissions

At a discovery deposition, plaintiff's attorney asked Dr. Weinberg if he recalled why he ordered 100 milligrams Dilantin for Sheldon at 4:25 p.m. ...


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