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Sullivan v. Edward Hospital

November 27, 2002

JUANITA SULLIVAN, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF BURNS SULLIVAN, DECEASED, PLAINTIFF-APPELLANT,
v.
EDWARD HOSPITAL AND AMELIA CONTE-RUSSIAN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County No. 98-L-1145 The Honorable Robert K. Kilander, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

UNPUBLISHED

On November 6, 1998, Burns Sullivan (now deceased) and his wife, Juanita Sullivan, filed a medical malpractice action against Dr. Amelia Conte-Russian and Edward Hospital. The complaint sought damages for a fall Burns Sullivan (Burns) experienced while residing as a patient at Edward Hospital. Plaintiff asserted that Dr. Conte-Russian and Edward Hospital, through the actions of nurse Carrie Lewis, were negligent in the care and treatment of Burns. Plaintiff also filed a second count claiming Juanita Sullivan suffered loss of consortium as a result of defendants' negligent treatment.

At trial, the court entered a directed verdict for defendant Edward Hospital after plaintiff's only medical expert was ruled incompetent to testify as to the standard of care for the nursing profession. Thereafter, the court entered judgment on a jury verdict in favor of Dr. Conte-Russian.

Plaintiff subsequently appealed both the directed verdict for Edward Hospital and the jury verdict in favor of Dr. Conte-Russian. Plaintiff raises three issues on appeal, asserting that (1) the trial court erred by ruling plaintiff's expert physician witness incompetent to provide standard-of-care testimony regarding the nursing profession, (2) the trial court erred by giving the jury the long-form version of Illinois Pattern Jury Instruction 12.05 (Illinois Pattern Jury Instructions, Civil, No. 12.05 (2000)) on proximate cause, and (3) the jury verdict was against the manifest weight of the evidence.

BACKGROUND

The following evidence was revealed at trial. Dr. Conte-Russian had been the regular treating physician for Burns since 1995 when he suffered a stroke. On November 1, 1997, Burns was admitted to Edward Hospital for treatment of a urinary tract infection. While at Edward Hospital, Dr. Conte-Russian acted as the primary treating physician. Burns's prior history of strokes had left him in a deteriorated physical condition. He could not speak, but he could understand others and respond with physical gestures. Burns's 1995 stroke also resulted in paralysis to his right side and impaired his ability to walk unassisted.

On the evening of November 2, 1997, nurse Carrie Lewis was on duty and acting as Burns's primary nurse. The entire evening Burns had been in his bed. However, on three separate occasions between 7 p.m. and 9:30 p.m., Nurse Lewis found Burns attempting to get out of the bed. After each of the first two instances, nurse Lewis found Burns to be aware and able to understand her instructions to stay in bed. After the third occurrence, nurse Lewis became concerned about Burns's failure to follow instructions and that he now appeared to be agitated. Concerned about Burns's behavior and wanting to take further measures because Burns was considered a fall risk, nurse Lewis phoned Dr. Conte-Russian at 9:30 p.m. and asked the doctor to order a posey vest to restrain Burns to his bed. A posey vest is used to restrain a patient by placing the vest on the patient and then tying the vest straps to the bed.

Dr. Conte-Russian then advised nurse Lewis that a posey vest might result in Burns becoming even more agitated. Instead, the doctor decided to administer the drug Ativan to calm Burns down and help him sleep.

The Ativan, which was administered by nurse Lewis at 10 p.m., was expected to last for a period of at least two hours. Between 10 p.m. and 12 a.m., nurse Lewis and the nurse's aide checked on Burns approximately every half-hour. At about 12:10 a.m., nurse Lewis found Burns lying on the floor of his hospital room with a pool of blood around his head. Apparently, Burns had attempted to get up from his bed and walk. In his condition, he fell and struck his head on the hospital room floor. As a result of the fall, he suffered a subdural hematoma and was subsequently transferred to Northwestern Memorial Hospital.

At trial, the plaintiff attempted to establish the liability of Edward Hospital vicariously through the actions of nurse Lewis. Plaintiff called Dr. William Barnhart to testify as her medical expert. Dr. Barnhart is a board-certified physician specializing in internal medicine and has substantial experience in working with doctors and nurses in patient fall protection. Plaintiff intended for Dr. Barnhart to testify to the applicable standards of care for physicians and nurses and the subsequent failure of both Dr. Conte-Russian and nurse Lewis to meet their respective standards of care.

Dr. Barnhart testified to the standard of care for a licensed nurse and the instances in which nurse Lewis deviated from the standard of care. Those instances included nurse Lewis's failure to properly communicate Burns's condition to Dr. Conte-Russian during their phone conversation and her failure to adhere to proper nursing procedures in the care and treatment of a patient. The court struck the testimony relating to nurse Lewis's communications with Dr. Conte-Russian as a violation of Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)) because Dr. Barnhart's opinions on this issue were not properly disclosed during pretrial discovery. The court then struck the rest of Dr. Barnhart's testimony relating to the nursing standard of care and nurse Lewis's deviations on the grounds that a physician is incompetent to testify to the standard of care placed upon a licensed nurse.

ANALYSIS

I. The Competency of Plaintiff's Physician Expert

Medical malpractice suits require that the plaintiff establish the standard of care through the testimony of a medical expert. Dolan v. Galluzzo, 77 Ill. 2d 279, 281 (1979). We review de novo the issue of a physician's competency to testify to the standard of ...


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