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12/13/94 NEAL GOLDEN v. KISHWAUKEE COMMUNITY HEALTH

December 13, 1994

NEAL GOLDEN, PLAINTIFF-APPELLANT AND SEPARATE APPELLEE
v.
KISHWAUKEE COMMUNITY HEALTH SERVICES CENTER, INC., STANLEY D. BRANDON AND DEKALB COUNTY ORTHOPEDICS, S.C., ANDREW BISCAN, M. SCOTT PECKLER, AND M. SCOTT PECKLER, M.D., S.C., IRWIN RICH AND IRWIN RICH, M.D., S.C., THOMAS J. STILP AND CHICAGO NEUROLOGICAL SURGEONS, LTD., DEFENDANTS-APPELLEES, AND SKOKIE VALLEY COMMUNITY HOSPITAL, INC., DEFENDANT-SEPARATE APPELLANT, AND ELLIOT GOLDIN, M.D. AND NORTH SUBURBAN CLINIC, LTD., DEFENDANTS-SEPARATE APPELLANTS



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

The Honorable Justice Hartman delivered the opinion of the court: Scariano and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Hartman

The Honorable Justice HARTMAN delivered the opinion of the court:

This is a consolidated appeal involving a jury verdict in a medical malpractice action. The jury decided in favor of plaintiff Neal Golden (Neal) against Dr. Elliot Goldin, North Suburban Clinic, Ltd. (North Suburban) and Skokie Valley Community Hospital, Inc. (Skokie Valley), but against Neal and in favor of defendants Kishwaukee Community Health Services Center, Inc., doing business as Kishwaukee Community Hospital (Kishwaukee), Stanley D. Brandon and DeKalb County Orthopedics, S.C. (DeKalb), Andrew Biscan, Dr. M. Scott Peckler and M. Scott Peckler, M.D., S.C., Dr. Irwin Rich and Irwin Rich, M.D., S.C., Thomas J. Stilp and Chicago Neurological Surgeons, Ltd. (CNS), the latter decision being the subject of Neal's appeal. Defendants Skokie Valley, Dr. Goldin and North Suburban separately appeal from that part of the jury verdict against them and in favor of Neal.

In order to comply with recently adopted page limitations set forth in Supreme Court Administrative Rule MR No. 10343, which accompanied amended Supreme Court Rule 23, (134 Ill. 2d R.23 (amended eff. July 1, 1994)), the written disposition in this appeal will be bifurcated into this opinion, to be published, and an unpublished Rule 23 order disposing of the remaining, nonprecedential issues, filed contemporaneously with this opinion.

The following issues are presented in these appeals; their disposition, whether by this opinion or Rule 23 order (R.23), is designated in parenthesis. Neal questions whether the circuit court erred (1) in striking the res ipsa loquitur counts in his second amended complaint (opinion); (2) in barring evidence of the transfer to another hospital of a second motorcycle accident victim (R.23); (3) in prohibiting Neal from cross-examining defense medical experts about their association with the insurer of several defendants (opinion); (4) in permitting defendants to violate various motions in limine (R.23); (5) in permitting defendants to use an unidentified patient's medical records at trial (R.23); (6) in directing a verdict on the issue of apparent agency (opinion); (7) in barring certain expert testimony (R.23); (8) in instructing the jury (R.23); (9) in permitting defendants to cross-examine co-defendants' experts (R.23); and (10) whether the jury's verdict was against the manifest weight of the evidence (R.23). Separate defendants-appellants raise the following issues: whether the circuit court erred (1) in failing to inquire about a juror's ability to remain impartial (opinion); (2) in denying defendants' motions to allow the jury to review a "day-in-the-life" film prior to voir dire and to compel Neal's presence during voir dire (opinion); (3) in allowing a respiratory therapist to testify as an expert witness (opinion); and (4) in failing to order a satisfaction of judgment in favor of certain defendants (R.23).

On October 23, 1979, Neal and his companion Mark Olendorf were injured in a motorcycle-automobile accident in DeKalb, Illinois. Paramedics arriving at the scene found that Neal was not breathing, had no pulse or heartbeat, and his head was flexed forward indicating that he had sustained a broken neck. They removed Neal's helmet, applied a cervical collar, administered CPR, inserted an esophageal obturator airway (EOA) and administered Ringer's lactate intravenously. They transported Neal to Kishwaukee.

Neal arrived at Kishwaukee's trauma room at 1:05 p.m. where he was met and treated by Dr. Brandon, Dr. Biscan, nurse Jan Heal and nurse anesthetist James Dionisopoulos. Dr. Brandon later decided to transfer Neal to a hospital which had long term care capabilities and the services of specialists which Kishwaukee did not have. He considered Skokie Valley, St. Anthony's in Rockford and Northwestern Memorial Hospital (Northwestern) in Chicago prior to the transfer. Kishwaukee's personnel were unable to reach Neal's family. Dr. Brandon subsequently transferred Neal to Skokie Valley, in Neal's hometown, because it could provide needed neurosurgical, orthopedic and other special medical care, and it was suggested by Neal's friends as being close to his family. Skokie Valley accepted Neal as a patient.

Neal was taken to Skokie Valley by ambulance. When he arrived, at approximately 3:50 p.m., he could voluntarily move his limbs to a degree, was responsive and cooperative. He was seen by Drs. Peckler, Rich, Stilp, and Goldin, in that order. Some time later he abruptly stopped breathing, but was successfully resuscitated. During the night he developed a facial seizure and ran a temperature. The next morning, Neal was unable to move his extremities and has remained paralyzed from the neck down. Additional facts will be stated as necessary in the body of this opinion. A more expansive recounting of the medical facts is set forth in the Rule 23 order previously mentioned.

Neal filed suit in 1981 and subsequently filed an amended complaint to which answers by various defendants were filed. Neal alleged that the treatment he received from defendants either caused or contributed to his paralysis and other conditions. An array of pretrial motions were filed and disposed of prior to the jury trial which ensued. The circuit court directed verdicts in favor of Kishwaukee on the issue of whether Dr. Brandon, Dr. Biscan and nurse Dionisopoulos were its apparent agents, and in favor of Skokie Valley on the issue of whether Drs. Peckler, Rich, Goldin and Stilp were its apparent agents. The jury returned a verdict in favor of Kishwaukee and Drs. Brandon, Biscan, Peckler, Rich and Stilp, but found against Skokie Valley, Dr. Goldin and North Suburban and awarded Neal $7,012,000, later reduced to $6,887,000 by order of court. Post-trial motions were denied.

I.

Neal argues first that the circuit court erred in striking the res ipsa loquitur counts in his second amended complaint.

Initially, it should be noted that Neal did not attempt to add the res ipsa loquitur counts until nine years after the case had been filed and already assigned for trial to a judge. The circuit court's decision to allow or deny amendment of a complaint to plead res ipsa loquitur is discretionary. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 591, 491 N.E.2d 803, 96 Ill. Dec. 524.) The denial of leave to file amended complaints on the eve of trial, where the moving party knew of the matter at the time of the original pleading is not an abuse of discretion. Trident Industrial Products Corp. v. American National Bank and Trust Co., N.A. (1986), 149 Ill. App. 3d 857, 501 N.E.2d 273, 103 Ill. Dec. 252.

Neal waited not only nine years but until the case was assigned a trial judge before seeking to add the res ipsa loquitur counts. Defendants credibly claim that waiting until trial to amend the pleadings unfairly surprised them. During this length of time, defendants had been conducting evidentiary discovery, expert witness discovery and otherwise preparing the case for ordinary medical malpractice defense. Neal's untimely motion prevented defendants from completing the necessary discovery and preparation of a res ipsa loquitur defense in time for trial under these circumstances, and the court could have so held had it chosen to do so (see Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 392 N.E.2d 591, 29 Ill. Dec. 894), and should have so held in the interest of the expeditious administration of justice.

The circuit court struck the counts, however, because Neal failed to establish "exclusive control." Although this case involves multiple parties, Neal maintains that all defendants exercised joint control because Kishwaukee improperly transferred him to Skokie Valley, a hospital incapable of treating his injuries. To establish res ipsa loquitur, plaintiff must demonstrate that he was injured in an occurrence that ordinarily does not happen in the absence of negligence and that defendants had exclusive control of the instrumentality that caused the injury. Dyback v. Weber (1986), 114 Ill. 2d 232, 242, 500 N.E.2d 8, 102 Ill. Dec. 386.

In the case sub judice, Neal failed to demonstrate that defendants acted jointly. Drs. Brandon and Biscan treated him only at Kishwaukee. No record evidence shows that Dr. Biscan ever touched or physically examined him. Dr. Brandon and Joyce Davidson, Kishwaukee's head emergency room nurse, testified without contradiction that Kishwaukee's transfer policies were only guidelines that did not prohibit a transfer to Skokie Valley. Significantly, Neal was reasonably alert upon his arrival there and moved all four extremities. At Skokie Valley, Drs. Peckler, Rich, Stilp and Goldin provided treatment independently from that administered by Drs. Brandon and Biscan. Dr. Fein, Neal's own expert witness, was of the opinion that he became quadriplegic after being treated by these latter defendants. Clearly, Neal received different treatment by different entities and persons at different times in different locations; the requisite control was not shown as to ...


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