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May 18, 1994


Appeal from the Circuit Court of the 9th Judicial Circuit, Fulton County, Illinois. No. 92-L-9. Honorable Charles H. Wilhelm, Judge Presiding.

Released for Publication June 21, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

The plaintiff, Paul Crnkovich, brought a medical malpractice action against the defendants, Carlos Almeida, M.D., and Graham Hospital Association. The plaintiff alleged that the defendants' failure to properly observe and treat an infection that occurred at the site of his IV led to thrombophlebitis of the left wrist, staphylococcal epidural abscess and bacteria, resulting in quadriparesis, and necessitating surgical treatment including a cervical laminectomy for abscess drainage, and subsequently the bilateral removal of his prosthetic knee joints. As part of the pretrial discovery in the case, plaintiff intended to depose the nurses that were involved in the plaintiff's treatment. During the depositions of two of these nurses, Sharyl Ellis and Sharon Nuttall, the plaintiff's counsel posed questions concerning the relevant standard of nursing care. On advice of counsel, the nurses declined to answer the questions.

The plaintiff filed a motion to compel answers to the questions relating to the standard of care. In the motion, the plaintiff pointed out that he was alleging acts of negligence on the part of Graham Hospital nurses, including the failure to properly follow, chart, and bring to the attention of the plaintiff's treating physicians the redness and edema that developed at the site of a heparin lock in plaintiff's left wrist on or about February 8, 1992, and the failure to report to plaintiff's treating physicians a temperature spike that occurred shortly after midnight on February 12, 1990, that plaintiff alleges was a sign or symptom of the infection. The specific questions that defendant Graham Hospital's attorney objected to concerned:

(1) a nurse's duty to notify a doctor about his patient's temperature spikes;

(2) the required charting when a patient's I.V. or heparin lock comes out or is removed by the patient;

(3) whether a temperature spike in a patient such as the plaintiff to a level of 100.9 degrees required doctor notification;

(4) the nurse's understanding of nursing protocol and her personal practices in the filling out of the nursing discharge summary and the timing of the filling out of the nursing discharge summary;

(5) whether a temperature spike to 100.9 in a patient with bilateral prosthetic knees would have been of special concern to the nurse, if she had been the attending nurse at the time.

Sharon Nuttall and Sharyl Ellis responded with a motion for protective order. They asserted in their motion that their own treatment of the plaintiff was not being criticized and that they should not have to answer opinion or standard of care questions as to matters taking place beyond their own treatment of the plaintiff. They argued that they should not be compelled to answer questions that essentially required them to review conduct of other Graham nurses.

The court made an oral ruling denying the nurses' motion for protective order and granting the plaintiff's motion to regulate discovery. The nurses moved for a reconsideration of the oral ruling. The court subsequently entered a written order to the same effect as the previous oral ruling. On the same day, the court entered another order finding Ralph Froehling, counsel for Graham Hospital and the two nurses, to be in contempt of court. In that order, the court stated that subsequent to the court's granting of the plaintiff's motion to regulate discovery, Froehling indicated that he would continue to advise Nuttall and Ellis to refuse to answer the questions. The court found Froehling in contempt of court and fined him $25. Nuttall, Ellis, and Graham Hospital filed a motion to vacate the court's judgment; this motion was stricken by the court at plaintiff's request. Nuttall, Ellis, and Froehling then filed the instant appeal.

The appellants argue that a nonparty treating nurse may not be compelled in a medical malpractice action to give expert opinions that are driven by the litigation rather than the treatment given by the deponent. The appellants point out that Ellis only cared for the plaintiff on February 4 and 5, and any possible alleged negligence occurred subsequent to February 8. Nuttall cared for the plaintiff from 7 a.m. to 3 p.m. on February 12, the day of his dismissal from the hospital. The temperature spike had occurred earlier on the 12th, shortly after midnight. The appellants argue that questions that do not directly involve these nurses' care of the plaintiff, and involve the standard of care, are requesting expert opinions. The appellants assert that the plaintiff is seeking to take their intellectual property without just compensation. Further, the appellants rely on Supreme Court Rule 220 (134 Ill. 2d R. 220) and cases that have ...

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