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09/02/94 GLENN D. NETTO v. BRUCE F. GOLDENBERG

September 2, 1994

GLENN D. NETTO, ADM'R OF ESTATE OF KATHERINE NETTO, DECEASED, PLAINTIFF-APPELLANT,
v.
BRUCE F. GOLDENBERG, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Winnebago County. No. 88-L-216. Honorable Harris H. Agnew, Judge, Presiding.

Rehearing Denied November 1, 1994. Petition for Leave to Appeal Denied February 1, 1995.

PECCARELLI, Inglis, Bowman

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

The plaintiff, Glenn Netto, M.D., administrator of the estate of Katherine Netto (decedent), sued defendants, Rockford Memorial Hospital (Rockford), Bruce Goldenberg, M.D. (defendant), and Peter Marks, M.D., alleging that defendants' negligence caused decedent's death. Summary judgment was granted in favor of Rockford and Dr. Marks. The jury found in favor of the defendant on February 10, 1992. This appeal of the judgment on the verdict followed.

The plaintiff contends that the trial court erred in (1) denying plaintiff's pretrial motion to strike defendant's affirmative defenses; (2) not allowing a board-certified nephrologist to testify to the standard of care applicable to the defendant; (3) refusing to instruct the jury that physicians are liable when their failure to exercise reasonable care is a substantial factor in bringing about the harm allegedly suffered; (4) allowing testimony pertaining to treatment by physicians other than the defendant; (5) allowing impeachment of plaintiff witnesses with allegedly consistent prior statements; and (6) instructing the jury that the defendant was not allowed to interview the plaintiff's treating physicians or nurses. We reverse and remand for a new trial.

The plaintiff's suit arose from the death of the decedent on May 5, 1986. Decedent was a diabetic with a history of chest discomfort and shortness of breath. The decedent was admitted to Rockford on April 29, 1986, complaining of chest pain and died there on May 5, 1986.

Decedent underwent a quadruple coronary bypass on May 1, 1986. Doctor Marks, a cardiac surgeon, performed the surgery. The defendant, also a cardiac surgeon, assisted Dr. Marks. The plaintiff, a physician, did not participate in the decedent's care. Surgery began at approximately seven o'clock in the morning. During a coronary bypass a patient's heart must be stopped; while the heart is stopped, a heart-lung machine sustains the patient's respiration and circulation. Doctor Marks stopped decedent's heart, placed her on a heart-lung machine, and performed the quadruple coronary bypass. Initial attempts to restart decedent's heart failed. Doctor Marks decided to redo the previously completed bypasses. Following this, in an effort to assist decedent's weakened heart, Dr. Marks inserted an intra-aortic balloon pump into decedent's right femoral artery. Decedent's heart restarted. She was placed on a ventilator, moved to the surgical intensive care unit, and started convalescing.

Over the next 2 1/2 days decedent's condition improved. Doctor Marks slowly weaned her from the intra-aortic pump. The decedent began to breathe on her own with the assistance of a respirator. Improvement in decedent's condition prompted Dr. Marks to remove the pump on May 3, 1986. This was done at approximately 11:30 in the morning. The decedent tolerated removal well. Her vital signs were stable.

After removing the pump, Dr. Marks travelled to Chicago with his family on May 3, 1986. Prior to leaving, Dr. Marks arranged for the defendant to assume responsibility for decedent's care in Dr. Marks' absence. Doctor Marks informed the defendant that the pump had been removed and that the decedent was in stable condition. Doctor Marks also reminded the defendant that the Marks family would be spending the rest of the day in Chicago. Doctor Marks left Rockford at approximately one o'clock that afternoon.

Decedent's condition began to deteriorate at approximately 1:40 p.m. on May 3, 1986. A retroperitoneal bleed (a hemorrhage into the space between the abdomen wall and the thin layer of tissue lining the inside of the abdomen) began in the area of the right femoral artery that had accommodated the intra-aortic pump. Decedent's respiration and pulse suddenly increased. Her blood pressure dropped. She became pale. Nurse Susan Stromquist immediately contacted the defendant by pager. The defendant telephoned the hospital at 1:46 p.m. For the next 30 minutes the defendant directed treatment by giving nurse Stromquist orders by telephone. The defendant did not arrive at the hospital until approximately 5 p.m.

On May 5, 1986, the decedent was seen by a number of specialists. Doctor John Maynard, a nephrologist, was one of these specialists. The decedent died at 11:30 p.m. on May 5, 1986.

The defendant argues that this court is without jurisdiction to hear the plaintiff's appeal. We address this contention first because proper jurisdiction may not be waived and is an absolute prerequisite to appellate review. Essentially, the defendant contends that this court lacks jurisdiction because plaintiff's notice of appeal cites thetrial court's order denying plaintiff's post-trial motion, rather than the order entering the judgment itself. We disagree.

In jury cases, an appeal from an order denying a post-trial motion is actually an appeal from the underlying judgment. (See Official Reports Advance Sheet No. 26 (December 22, 1993), R. 303(a)(1), eff. February 1, 1994.) An appeal is limited to the issues raised in the post-trial motion. Therefore, a post-trial motion merely serves as a tool to preserve errors for appellate review. It is unimportant whether the notice of appeal cites to the order disposing of the post-trial motion or the order entering the ...


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