Appeal from the Circuit Court of Du Page County. No. 97-L-659 Honorable James W. Jerz, Judge, Presiding
The opinion of the court was delivered by: Justice Grometer
Defendants, Snow Valley Health Resources, Inc. (Snow Valley), and Rakeesh Marwaha, M.D., appeal a decision of the circuit court of Du Page County granting plaintiff, Robin A. Prairie, a new trial. Following a jury trial, a verdict was returned in favor of both defendants. Plaintiff filed a posttrial motion seeking, among other things, a new trial. The trial court granted that request, relying on three errors it found to have occurred in the course of the trial. Primarily, the trial court relied upon its finding that defendant Marwaha's trial testimony diverged from what had been disclosed, a situation that violated Supreme Court Rule 213 (177 Ill. 2d R. 213). The trial court also determined that two additional errors contributed to the unfairness of the trial. First, it held that it had erred by allowing a medical textbook to be admitted as substantive evidence. Second, it concluded that it had erroneously allowed plaintiff to be impeached through the use of what it determined to be either a misdemeanor conviction or an ordinance violation. We granted defendants leave to appeal pursuant to Supreme Court Rule 306 (166 Ill. 2d R. 306) and now affirm.
Defendant Snow Valley operates a residential facility where it provides long-term care for its patients. Plaintiff's decedent was a 103-year-old woman and resident of Snow Valley. Plaintiff's decedent died on June 12, 1994, while a resident there. Defendant Marwaha is a physician who provided care to the decedent during the period in which she resided at Snow Valley. Plaintiff filed the current action, alleging several breaches by both defendants. Pertinent to this appeal is plaintiff's allegation that defendants failed to adequately monitor the decedent's vital signs and that this omission led to her death.
Because this appeal comes to us following the grant of a new trial, we will disturb the decision of the trial court only if "it is affirmatively shown that it clearly abused its discretion." Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992). A trial court abuses its discretion when its decision is arbitrary or exceeds the bounds of reason. Schmidt v. Joseph, 315 Ill. App. 3d 77, 81 (2000). Only where no reasonable person would agree with the position taken by the trial court does an abuse of discretion occur. Schwartz v. Cortelloni, 177 Ill. 2d 166, 177 (1997). With this standard of review in mind, we now turn to the merits of this appeal.
The primary basis for the trial court's decision to grant a new trial was its determination that Marwaha's testimony deviated from that disclosed pursuant to Supreme Court Rule 213. See 177 Ill. 2d R. 213. Defendants raise four distinct arguments as to why this ruling was an abuse of discretion. First, defendants assert that plaintiff waived any claim of error by failing to interpose a timely objection. Second, defendants contend that Marwaha's testimony was properly disclosed. Third, defendant Snow Valley argues that the testimony in question was not opinion testimony and therefore not within the scope of the rule. Finally, defendants postulate that plaintiff could have and should have impeached Marwaha if she felt that his testimony diverged from his previously disclosed testimony.
The testimony at issue here concerns the steps that should have been taken to monitor plaintiff's decedent's vital signs in the days before her death. In his deposition, Marwaha was asked whether "[decedent's] vitals should be taken on each shift," and he replied, "In each shift, right." He also referred to a standing order regarding the decedent, part of which he stated was to "[m]onitor her vital signs." When asked how many times a day they should be monitored, he replied three.
At trial, Marwaha first testified when called as an adverse witness by plaintiff. When asked by plaintiff's counsel whether there was a standing order that the nursing staff at Snow Valley take the decedent's vital signs three times daily, he stated "I think you are confusing the standing order with the patient assessment." When asked whether the decedent was to be monitored and have her vitals taken every shift, Marwaha replied that "[s]he should be assessed every shift, yes." Again, when asked whether her vital signs should have been taken during each shift, he stated that "[s]he should be assessed every shift." During cross-examination, Marwaha was asked to describe an assessment. He gave the following reply:
"An assessment of the patient is just basically you walk into a patient's room and see whether--all her mental status, is she awake or is she sleeping. So--then they look at the--make sure that she has eaten good today or slept well, she had a bowel movement or she's urinating okay and she's moving all her limbs, she's breathing okay. Check her color, feel her and see what her temperature is.
This is called a quick assessment of the patient, which all nurses are supposed to do. This takes only 30 to--30 seconds to a minute. And they're supposed to do it on everybody every shift." Plaintiff did not object to this testimony or attempt to impeach Marwaha with the statement he made during his deposition.
Later, during his own case, Marwaha first stated that decedent was "monitored pretty good." He then testified that there was no written standard stating a patient's vital signs had to be monitored three times each day. His attorney next asked whether patients were to be "assessed" three times per day. At this point, plaintiff interposed a Rule 213 objection, arguing that the assessments that Marwaha was speaking about were different from the monitoring of vital signs that he had testified about in his discovery deposition. The trial court overruled this objection. Marwaha then stated that he wanted the decedent monitored and assessed three times each day. Thereafter, during cross-examination, the following colloquy ensued:
"Q: So, Doctor, you expected the nursing home to take her vital signs three times daily at a minimum, is that correct?
A: I expected them to do assessment [sic] three times a day. Vital signs is [sic] a little bit, part of the total assessment of the patient.
Q: But you would agree with Dr. Fintel and Dr. Breall, that three times daily on the vitals was what should be done, correct?
A: The patient should be assessed at least three times a day, yes.
Q: The vital signs should be taken three times a day, isn't that correct?
A: Vitals is [sic] a part of the assessment. It should be done ...