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McDonnell v. McPartlin

June 15, 2000

MOIRA MCDONNELL, EX'R OF THE ESTATE OF JOHN G. MCDONNELL, DECEASED, APPELLANT, V. RICHARD F. MCPARTLIN III, M.D., ET AL., APPELLEES.


The opinion of the court was delivered by: Justice Bilandic

January 14, 2000.

The principal issue in this appeal is whether a defendant in a medical negligence case who asserts that a nonparty physician's conduct was the sole proximate cause of the plaintiff's injury (the so-called "empty chair" defense) must demonstrate that the nonparty physician's conduct was professionally negligent, as well as the sole proximate cause of the plaintiff's injury, in order for the jury to be instructed on sole proximate cause (see Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1995) (hereinafter IPI Civil 3d)). We hold that such a defendant is not required to demonstrate that the nonparty physician's conduct was professionally negligent in order for the jury to be instructed on sole proximate cause.

BACKGROUND

On Saturday, November 8, 1986, Moira McDonnell (plaintiff) brought her husband, John McDonnell (McDonnell), to the emergency room of Good Samaritan Hospital. McDonnell, a diabetic, had become ill the previous evening. The couple went to the emergency room at the direction of Dr. Barbara Loeb, with whom plaintiff had spoken that morning. Dr. Loeb was covering for Dr. Richard McPartlin III, McDonnell's regular internist. Dr. McPartlin became McDonnell's primary care physician in April 1986, following a surgery in which McDonnell's right hip was replaced for the third time. This surgery was performed at Good Samaritan Hospital by Dr. James Ahstrom, an orthopedic surgeon.

Dr. Thomas Mullin, Jr., was on duty in the emergency room on November 8, and examined McDonnell. Dr. Mullin ordered certain blood tests and an X-ray of McDonnell's right hip. Dr. Mullin believed that McDonnell was suffering from a flu virus. After Dr. Mullin discussed McDonnell's condition with Dr. Loeb by telephone, Dr. Loeb decided not to admit McDonnell to the hospital.

Based on McDonnell's blood glucose levels which the couple reported to Dr. Loeb the next day, November 9, Dr. Loeb suggested that McDonnell return to the emergency room that day for an accurate blood glucose reading and further evaluation. McDonnell returned to the emergency room on Monday, November 10, when Dr. McPartlin was back. Dr. McPartlin's initial impression was that McDonnell was suffering from a diabetic condition known as ketoacidosis, possibly secondary to a right hip infection. Dr. McPartlin admitted McDonnell to the intensive care unit.

On the afternoon of November 11, Dr. McPartlin started McDonnell on antibiotics and ordered an orthopedic consult with Dr. Ahstrom. In the early morning hours of November 12, McDonnell went into septic shock, and later suffered a cardiac/respiratory arrest. Dr. Michael Orth, an orthopedic surgeon who was covering for Dr. Ahstrom while Dr. Ahstrom was out of town, performed an incision and drainage of McDonnell's right hip, which was infected.

Dr. McPartlin determined, as did Dr. Orth and other consulting specialists, that McDonnell's right hip prosthesis must be removed as soon as McDonnell was medically cleared for surgery. Dr. Ahstrom, who returned to the hospital on November 16, believed that it was not necessary to remove the hip prosthesis, and that McDonnell could not survive such a surgery. Dr. Ahstrom advised plaintiff and McDonnell against surgery; they followed Dr. Ahstrom's advice.

In early December 1986, while Dr. Ahstrom was out of town, Dr. E. Thomas Marquadt, an orthopedic surgeon, consulted on the case. Dr. Marquadt concluded that McDonnell's life-threatening condition required removal of the right hip prosthesis. On December 8, McDonnell was transferred to Rush-Presbyterian St. Luke's Medical Center (Rush), where he underwent surgery later that month for removal of the hip. McDonnell remained at Rush until his death on February 16, 1987. The cause of death was heart failure due to sepsis and a bone infection.

Plaintiff, as executrix of her husband's estate, subsequently filed a wrongful death and survival action in the circuit court of Cook County against Drs. Mullin and McPartlin, and their corporate employers. Plaintiff claimed, inter alia, that defendants' medical negligence in failing to diagnose and treat her husband's hip infection resulted in his death. Defendants denied any liability and argued, inter alia, that the conduct of Dr. Ahstrom, a nonparty, was the sole proximate cause of McDonnell's death. A jury found in favor of defendants. The circuit court entered judgment on the jury verdict and later denied plaintiff's post-trial motions. The appellate court affirmed. 303 Ill. App. 3d 391. We granted plaintiff's petition for leave to appeal (see 177 Ill. 2d R. 315), and now affirm the judgment of the appellate court.

ANALYSIS

Plaintiff argues that the jury should not have been instructed as to defendants' sole proximate cause defense, in the absence of competent evidence that Dr. Ahstrom was professionally negligent, as well as the sole proximate cause of McDonnell's death. Plaintiff claims that the improper jury instruction, coupled with defendants' improper argument, resulted in undue prejudice to her, warranting a new trial. Plaintiff argues, in the alternative, that she is entitled to a new trial because defendants used their peremptory challenges to exclude black members of the venire, and because various evidentiary errors deprived her of a fair trial.

I. Sole Proximate Cause Defense

We consider first whether the jury was properly instructed as to defendants' theory that the conduct of Dr. Ahstrom was the sole proximate cause of McDonnell's death. Over plaintiff's objection, the jury was instructed pursuant to the long version of IPI Civil 3d No. 12.04. This instruction states in its entirety:

"12.04 Concurrent Negligence Other Than Defendant's

More than one person may be to blame for causing an injury. If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

[However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]"

Plaintiff argues that the appellate court wrongly held that the sole proximate cause instruction may be given to the jury in a medical malpractice case "even though no expert testifies the `conduct' of the third person nonparty was professionally negligent." 303 Ill. App. 3d at 398. Plaintiff maintains that the sole proximate cause instruction requires a defendant to establish, through expert testimony, that the nonparty's conduct was professionally negligent, as well as the sole proximate cause of the claimed injury, and that defendants here failed to present sufficient evidence to justify the instruction in this case.

In support of her argument, plaintiff cites to Freeman v. Petroff, 275 Ill. App. 3d 904 (1995) (Freeman I), Banks v. Climaco, 283 Ill. App. 3d 842 (1996), and Freeman v. Petroff, 288 Ill. App. 3d 145 (1997) (Freeman II). In Freeman I, plaintiffs brought a medical negligence action against the obstetrician who delivered their daughter, seeking recovery for permanent injuries the infant suffered in connection with her premature birth. The defendant alleged that the hospital, a nonparty to the suit, was the sole proximate cause of the child's injuries. The trial court instructed the jury based on the long form of IPI Civil 3d No. 12.04. The jury returned a verdict in favor of the obstetrician.

The appellate court reversed and remanded for a new trial. The appellate court initially observed that, "where the conduct of a nonparty is presented as a defense, the third person's conduct must be both negligent and the proximate cause of the plaintiff's injury in order to give the second paragraph of IPI Civil 3d No. 12.04." Freeman I, 275 Ill. App. 3d at 909. The appellate court went on to hold that the defendant must establish, through expert testimony, the generally accepted standard of care for the particular situation, a deviation from that standard, and a causal connection between the third party's deviation and plaintiff's injury. Freeman I, 275 Ill. App. 3d at 909-11. Because the evidentiary record in Freeman I revealed no testimony establishing, inter alia, the standard of care applicable to the nonparty hospital, the appellate court found that the trial court erred in giving the sole proximate cause instruction, and that such error deprived the plaintiffs of a fair trial.

The defendants in Freeman I filed a petition for leave to appeal to this court. We denied the petition, but entered a supervisory order remanding the matter to the appellate court for further consideration in light of Leonardi v. Loyola University, 168 Ill. 2d 83 (1995). Freeman v. Petroff, 165 Ill. 2d 550 (1996). In Leonardi, which we discuss more fully below, we held, in the context of a medical negligence case, that an answer which denies that an injury was the result of or caused by the defendant's conduct is sufficient to permit the defendant to raise the sole proximate cause defense. Leonardi, 168 Ill. 2d at 92-94. Following remand of Freeman I, the appellate court issued Freeman II. In Freeman II, the appellate court distinguished Leonardi and affirmed the holding in Freeman I. Freeman II, 288 Ill. App. 3d at 146. Significantly, the appellate court in this case declined to follow Freeman II.

The Banks case, on which plaintiff also relies, distinguished Leonardi and held that the standard applicable to a plaintiff for proving medical negligence also applies to the defendant, where the defendant argues that someone or something other than the defendant is the sole proximate cause of the plaintiff's injury. Banks, 283 Ill. App. 3d at 851-52.

Freeman I, Freeman II, and Banks, on the one hand, and the appellate court opinion in this case, on the other hand, present conflicting and irreconcilable statements of Illinois law. We now resolve this conflict. For the reasons stated below, we hold that, in the context of a medical negligence case, the sole proximate cause instruction requires only that the defendant present some evidence that the non-defendant is the sole proximate cause of the plaintiff's injury. It is not necessary that the defendant also establish that the non-defendant's conduct was medically negligent. Accordingly, as to this issue, we affirm the decision of the appellate court in this case. Further, to the extent Freeman I, Freeman II, and Banks conflict with our holding today, they are overruled.

A defendant raising the sole proximate cause defense seeks to defeat a plaintiff's claim of negligence by establishing proximate cause solely in the act of another not a party to the suit. Accordingly, this defense is aptly referred to as the "empty chair" defense. Leonardi, 168 Ill. 2d at 92.

The issue of whether the sole proximate cause instruction was properly given or refused in a particular case has frequently arisen where the defendant has implicitly, if not expressly, claimed that the nonparty was both negligent and the sole proximate cause of the plaintiff's injury. See, e.g., Ballweg v. City of Springfield, 130 Ill. App. 3d 241, 248-49 (1984), aff'd in part & rev'd in part, 114 Ill. 2d 107 (1986) (where the defendant boat manufacturer argued that the sole proximate cause of the boaters' deaths was the conduct of the person piloting the boat when it struck the overhead power lines, and the conduct of the city, which maintained the power lines in a dangerous condition); Storm v. Brown, 15 Ill. App. 3d 29, 32-33 (1973) (where the defendant argued that the sole proximate cause of a vehicular accident was the negligent conduct of a nonparty driver); French v. City of Springfield, 5 Ill. App. 3d 368, 371-76 (1972) (where the defendant municipality sought to introduce evidence that the driver of the vehicle in which the plaintiff was injured was intoxicated at the time of the accident and was the sole proximate cause of the plaintiff's injury); Miyatovich v. Chicago Transit Authority, 112 Ill. App. 2d 437, 441 (1969) (where the defendant transit authority claimed that liability for the accident rested solely with the driver of the vehicle in which the plaintiff was a passenger inasmuch as that driver went through a red light). Nevertheless, that Illinois courts have often considered the propriety of the sole proximate cause instruction in cases where the defendant sought to establish the nonparty's negligence does not mean that the instruction requires a defendant to establish such negligence. Indeed, the language of the instruction contains no such requirement.

The instruction as to sole proximate cause, set forth in the second paragraph of IPI Civil 3d No. 12.04, instructs the jury that "if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant." IPI Civil 3d No. 12.04. The instruction clearly refers only to the "conduct of some person other than the defendant" (emphasis added), not the negligent conduct of some person other than the defendant. The "Notes on Use" accompanying the instruction similarly explain that "[t]he second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of a third person" (emphasis added), not the negligent conduct of a third person. Thus, the sole proximate cause instruction contains no express requirement that the jury consider whether the third person's conduct was negligent. The sole proximate cause instruction likewise contains no implicit requirement that the jury consider whether the third person's conduct was negligent. We note that the first paragraph of IPI Civil 3d No. 12.04 implicitly refers to the third person's negligence by referring to the third person's "blame." The second paragraph of the instruction, however, contains no similar reference.

Plaintiff places much emphasis on the title of the instruction-"Concurrent Negligence Other Than Defendant's." The title, of course, is not a part of the instruction that a jury receives. In any event, the title appropriately describes the main provision of the instruction contained in the first paragraph, rather than the optional provision contained in the second, bracketed paragraph, which pertains to sole proximate cause.

Significantly, plaintiff's reading of the sole proximate cause instruction conflicts with the definition of "proximate cause" set forth in IPI Civil 3d No. 15.01. Pursuant to this instruction, proximate cause means:

"[that] [a] [any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in ...


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