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12/02/94 ROBERT TIERNEY v. COMMUNITY MEMORIAL

December 2, 1994

ROBERT TIERNEY, PLAINTIFF-APPELLEE,
v.
COMMUNITY MEMORIAL GENERAL HOSPITAL, N/K/A LAGRANGE MEMORIAL HOSPITAL, AND CHARLES R. RIMPILA, M.D., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 85 L 3581. Honorable Aaron Jaffe, Judge, Presiding.

Rehearing Denied January 12, 1995.

Justice Giannis delivered the opinion of the court: Egan, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

This is an appeal from a jury verdict against the above-named defendants in a medical malpractice and negligence case. Plaintiff, Robert Tierney, claimed that Dr. Charles Rimpila, an emergency room doctor, negligently failed to diagnose his medical condition and that the resulting delay in treatment caused him to have a stroke. Plaintiff also claimed Dr. Rimpila was the hospital's apparent agent, and that the hospital was thereby liable for Dr. Rimpila's conduct. Finally, plaintiff alleged that two hospital employees negligently recorded his medical history and that this was also a proximate cause of his stroke.

Evidence at trial indicated that the plaintiff went to the emergency room on June 2, 1983. Plaintiff complained to the hospital registrar and a nurse of a swollen tongue. He was having trouble breathing and speaking and believed he was having an allergic reaction to Erythromycin, a drug prescribed by his regular physician, Dr. DeMange. At the time, plaintiff had a fever and was anemic. According to the plaintiff, he told the registrar and a nurse, as well as Dr. Rimpila, that he had a heart murmur before he was examined. No one recorded this fact on his chart, By the time Dr. Rimpila was able to examine plaintiff, the swelling in his tongue had gone down and it was no longer a source of immediate concern. Dr. Rimpila consulted over the phone with Dr. DeMange and directed the plaintiff to see Dr. DeMange as soon as possible.

Plaintiff saw Dr. DeMange on the same day. Dr. DeMange had been treating plaintiff for some time and knew of plaintiff's fever, anemia and heart murmur. Plaintiff's fever continued to persist while under Dr. DeMange's care and, on the advice of friends, plaintiff went to see a new doctor on June 30, 1983. Based upon plaintiff's symptoms, this doctor diagnosed subacute bacterial endocarditis (SBE) and admitted plaintiff immediately to the hospital where he began what was to be an intensive four-week intravenous therapy. In the third week of his therapy, however, before he had finished treatment, he suffered a stroke. Plaintiff presented at trial the theory that he had contracted SBE well before his visit to the emergency room and that Dr. Rimpila's negligent failure to suspect and test him for SBE on June 2, 1983, delayed treatment, thereby proximately causing his injury. The jury determined liability against the defendants and awarded plaintiff $18,500,000 in compensation.

We begin by considering defendants' initial post-trial motions. In addition to a remittitur of the jury's $18.5 million award, defendants made motions seeking judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, a new trial. The trial court denied both requests.

A motion for judgment n.o.v. should be entered by the trial court whenever all of the evidence, when viewed in the light most favorable to the opponent of the motion, so overwhelmingly favors the movant that no contrary verdict could ever stand. ( Pedrick v. Peoria Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) In contrast, the trial court should grant a motion for a new trial whenever the jury's verdict is against the manifest weight of the evidence ( Stennis v. Rekkas (1992), 233 Ill. App. 3d 813, 824, 599 N.E.2d 1059, 175 Ill. Dec. 45), or where it believes trial errors have been sufficiently serious and prejudicial to warrant such relief (see Bartlett Bank & Trust Co. V. McJunkins (1986), 147 Ill. App. 3d 52, 63, 497 N.E.2d 398, 100 Ill. Dec. 420). A verdict is said to be against the manifest weight of the evidence where the opposite Conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based on any of the evidence. Stennis, 233 Ill. App. 3d at 824; Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969, 148 Ill. Dec. 372.

In reviewing the trial court's decision to deny a motion for judgment n.o.v., we must, like the trial court, view all of the evidence in the light most favorable to the opponent of the motion. ( Thacker v. UNR Industries, Inc. (1992), 151 Ill. 2d 343, 353-54, 603 N.E.2d 449, 177 Ill. Dec. 379.) The same rule applies on review of the trial court's decision to deny a new trial. ( Hamrock v. Henry (1991), 222 Ill. App. 3d 487, 492, 584 N.E.2d 204, 165 Ill. Dec. 25.) After reviewing the trial record with this in mind, we conclude that the trial court did not commit error in denying either defendants' motion for judgment n.o.v. or their motion for a new trial.

We first address Dr. Rimpila's argument that Plaintiff violated Supreme Court Rule 220(d) (134 Ill. 3d R. 202(d)), and that this violation amounts to reversible error. At trial plaintiff offered the testimony of Dr. John Vyden on the issue of whether plaintiff's stroke was caused by Dr. Rimpila's failure to diagnose SBE. Prior to the start of the trial, Dr. Rimpila filed a motion seeking to preclude plaintiff from offering testimony that the delay in treatment -- from June 2, 1983, to June 30, 1983 -- caused plaintiff's injuries. Defendant hospital joined in the motion. The motion was based upon the fact that deposition testimony of Dr. Vyden, plaintiff's only causation expert, indicated he had not formulated an opinion on the causation issue. The trial Judge denied the motion. During trial defendant's counsel again objected to Dr. Vyden's testimony and the court overruled the objection.

Supreme Court Rule 220 attempts to establish a uniform framework for the timely revelation of the identify of expert witnesses and the subject matter of their expected testimony. Paragraph (d) of the rule limits the permissible scope of an expert's testimony to those opinions expressed in response to discovery.

On January 28, 1991, plaintiff filed its Answers to defendants' supplemental interrogatories. In this document, plaintiff's counsel disclosed the name and address of Dr. Vyden. The interrogatory asks the plaintiff to state the subject matter on which his experts would testify. Plaintiff's attorney answered that Dr. Vyden would testify as to "the negligence of the physicians and health care practitioners in failing to properly exam (sic), test and diagnose bacterial endocarditis." Counsel also stated that Dr. Vyden would testify that, with a proper history, examination and a recording of results, plaintiff would have received test results which would have "confirmed the proper diagnosis of bacterial endocarditis and would have led to a good recovery."

In his deposition taken on June 13, 1991, Dr. Vyden indicated that he had not yet formed an opinion on the issue of whether plaintiff would have suffered a stroke had he been treated with intravenous antibiotics soon after his visit to the emergency room on June 2, 1983. Prior to trial both defendants motioned the court to preclude Dr. Vyden from testifying regarding causation. Dr. Rimpila's counsel argued that Dr. Vyden's testimony, that the longer the disease is allowed to progress the greater the chance of harm, was simply insufficient to establish that Dr. Rimpila's failure to diagnose SBE was a proximate cause of plaintiff's injury. The trial court denied the motion.

At trial, on November 20, 1991, Dr. Vyden was asked for his opinion about the role that Dr. Rimpila's negligence played in the plaintiff's stroke. Dr. Vyden stated that, had it not been for the negligence of Dr. Rimpila, the stroke would not have occurred.

There are many decisions involving Rule 220 wherein an expert's late or surprise testimony: (1) is permitted to his opponent's prejudice, (2) is refused to the detriment of the litigant offering them, or (3) results in the trial being continued. (See Committee Comments to Rule 220 (134 Ill. 2d R. 220), and cases cited therein.) Other cases have held that the allowance or denial of such testimony produces reversible error and the cause must be retried. See Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill. App. 3d 882, 588 N.E.2d 1193, 167 Ill. Dec. 1063; Brown v. Highland Park Hospital (1979), 69 Ill. App. 3d 769, 387 N.E.2d 1041, 26 Ill. Dec. 211.

As they did before the trial court, defendants point out that it is incumbent upon plaintiff to offer expert testimony which proximately connects his negligence to plaintiff's injuries. ( Pumala v. Siposand (1988), 163 Ill. App. 3d 1093, 1098-99, 517 N.E.2d 295, 115 Ill. Dec. 93.) Testimony that treatment would have increased the plaintiff's chances for recovery has been held to be insufficient. ( Hare v. Foster G. McGaw Hospital (1989), 192 Ill. App. 3d 1031, 1034-38, 549 N.E.2d 778, 140 Ill. Dec. 127 (discussing rule governing cases in which plaintiff claims defendant's negligence decreased his chances of recovery.) They also note that Rule 220 requires the nature of the expert's testimony be disclosed to them well before trial so that they can rely upon this opinion in their trial preparations. (See Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770, 132 Ill. Dec. 848.) Dr. Rimpila argues that he was figuratively "ambushed" by Dr. Vyden's causation testimony. He claims that without the admission of Dr. Vyden's opinion testimony, the trial court would have been required to direct a verdict in his favor.

We agree that plaintiff's counsel violated Rule 220 in failing to update Dr. Vyden's deposition testimony. Rule 220 requires a party to update the deposition testimony of its expert should that expert wish to express opinions beyond those originally disclosed. ( Zajac v. St. Mary of Nazareth Hospital Center (1991), 212 Ill. App. 3d 779, 794, 571 N.E.2d 840, 156 Ill. Dec. 860.) Nonetheless, the imposition of discovery sanctions under Rule 220 is a matter within the sound discretion of the trial court and will not be interfered with absent a clear showing of abuse. See Malone v. Papesh (1994), 255 ...


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