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Skubak v. Lutheran General Health Care Systems

May 13, 2003


Appeal from the Circuit Court of Cook County No. 95 L 2889 Honorable Donald M. Devlin, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill


Plaintiff Patricia Skubak filed a medical malpractice action on her daughter's behalf against several defendants. They included Lutheran General Health Care Systems (Lutheran General) and Dr. Samarjit S. Jaglan (Dr. Jaglan), who performed surgery on the right leg of 12-year-old Kimberly Skubak in 1994. Plaintiff claims that negligent treatment and care by defendants triggered a chain of events resulting in Kimberly's severe and permanent disabilities. Following a trial in February 2001, the jury returned a verdict in defendants' favor.

Plaintiff appeals, claiming that the trial court abused its discretion in: (1) allowing Dr. Prudence Krieger, on cross-examination, to contradict her deposition testimony criticizing Dr. Jaglan based on her recent discovery that she had misunderstood the state of Kimberly's treatment; (2) allowing Dr. Steven Wardell and Dr. Jaglan to state undisclosed opinions about monitoring a sore on Kimberly's foot; and (3) allowing Dr. Dennis Gates to testify on cross-examination regarding professional standards on postoperative reports. Plaintiff claims that the testimony violated Supreme Court Rule 213 (Rule 213 or the rule) (177 Ill. 2d R. 213) (a party must disclose the conclusions and opinions of the opinion witnesses he or she will call, and supplement earlier responses when additional information becomes known).

We disagree. In the course of this opinion, we conclude that the trial court did not abuse its discretion in allowing the contested testimony. Plaintiff's contentions that statements made on cross-examination violate Rule 213 fail because the rule's disclosure requirements do not apply to cross-examination of an opposing party's opinion witness under Maffett v. Bliss, 329 Ill. App. 3d 562, 577, 771 N.E.2d 445 (2002). The other contested statements were admissible as elaborations or logical corollaries of defendants' Rule 213 disclosures, or as elaborations on the standard of care.

Kimberly Skubak was born on October 12, 1981. When she was 18 months old, she contracted meningitis. The illness left her with mental and physical disabilities, including difficulty walking. In 1991 and 1993, Dr. Jaglan, an orthopedic surgeon, performed operations to improve Kimberly's ambulation. On January 17, 1994, Dr. Jaglan operated on Kimberly at Lutheran General. To straighten her right leg, Dr. Jaglan performed bone surgery known as an osteotomy. He stabilized the limb with an external fixator apparatus, percutaneous pins and a foot plate, or foot pad, which was strapped to the sole of her right foot. Kimberly was discharged from the hospital on January 19, 1994.

On January 26, 1994, Kimberly was readmitted to Lutheran General with a fever. She was treated with antibiotics and discharged three days later. On January 31, 1994, Kimberly's mother discovered a large sore on the bottom of her daughter's right foot. The sore was treated on an outpatient basis. On February 28, 1994, Kimberly was readmitted to Lutheran General with infections in both the surgical incision and in the sore on the bottom of her foot. On March 2, 1994, Dr. Jaglan removed the percutaneous pins, external fixator and foot plate, and replaced the pins with two percutaneous "K-wires," or "Kirschner wires," to stabilize her leg. He also cleaned and debrided (removed tissue from) the sore on her foot. Dr. Krieger, a pediatric infectious disease specialist, treated Kimberly's infections from March 4, 1994, to April 15, 1994. During that time, Dr. Krieger recommended that the "pins" in Kimberly's leg be removed because of the infection, but Dr. Jaglan disagreed. On April 19, 1994, Dr. Jaglan removed the K-wires. He last saw Kimberly as a patient in December 1994. She began seeing another orthopedist, Dr. Matthew Bueche.

In February 1995, plaintiff filed a medical malpractice complaint against Lutheran General and Dr. Jaglan. While the matter was pending, Dr. Bueche operated on Kimberly, including the partial amputation of her right foot in April 2000. She now uses a prosthetic device for walking.

Two to three weeks before the trial began on February 16, 2001, Dr. Krieger discovered that she had given deposition testimony based on a misunderstanding of the state of Kimberly's treatment. While meeting with Lutheran General's attorney, Dr. Krieger learned that the "pins" she had urged Dr. Jaglan to remove were not the original fixator pins from surgery, but the more recently inserted K-wires. The misunderstanding of Kimberly's treatment applied both to when she was treating Kimberly's infections and when she gave her two depositions. Dr. Krieger's discovery of her error was not disclosed to plaintiff.

The trial court conducted a pretrial hearing on the parties' motions in limine and discovery. Plaintiff's counsel contended that under Rule 213, he was not required to provide the names or opinions of potential witnesses because his disclosure of categories of persons to be called was sufficient. He argued for an interpretation of Rule 213 that required only general information about witnesses and their testimony. Defense counsel argued for an interpretation of the rule that required specific information about witnesses and their testimony. The trial court ruled that the testimony of "anybody who was reasonably identifiable" would be allowed.

At trial, plaintiff called Dr. Krieger as an adverse witness under section 2-1102 of the Code of Civil Procedure (the Code) (735 ILCS 5/ 2-1102 (West 2000)). Dr. Krieger testified that while treating Kimberly, she believed that the infection could be stopped if the pins were removed, but Dr. Jaglan opposed removing the K-wires because they were needed to stabilize the bone. Dr. Krieger first mentioned her misunderstanding about the "pins" during plaintiff's direct adverse examination. She said, "I actually thought they were the original pins. I was mistaken." Plaintiff did not object. She later testified, "[y]es, I thought they were the original pins. I was wrong," after which plaintiff's counsel asked for the latter portion to be stricken as unresponsive. The trial court did not strike the testimony, but directed the witness to answer the question as asked. Finally, plaintiff's counsel asked Dr. Krieger about the crosswires, to which she responded, "[y]es, I thought they were the original pins, however." The trial court granted plaintiff's resulting motion to strike and instructed the jury to disregard.

On cross-examination by Lutheran General, Dr. Krieger testified that when she used the term "pins" in her depositions, she meant the original fixator pins. She thought the fixator pins should be removed because the fixator had been removed and the pins would not have been stabilizing anything. Plaintiff objected, claiming that Lutheran General had elicited a new opinion from Dr. Krieger in violation of Rule 213. Noting that Dr. Krieger's deposition had included the same statement, the trial court overruled plaintiff's objection.

Under cross-examination by counsel for Dr. Jaglan, Dr. Krieger testified that she "thought the original pins were in place," and if she "had known [the pins] had been removed and new wires had been put in place to stabilize the bones, [she] would not have recommended their removal." Defendant objected based on Rule 213. The trial court concluded that Rule 213 did not apply to cross-examination, particularly where, as here, the witness was potentially very damaging to the cross-examining attorney's client. The trial court also allowed the cross-examination because it was based on material raised in plaintiff's direct examination of Dr. Krieger.

Plaintiff called Dr. Jaglan as an adverse witness. Dr. Jaglan said he operated on Kimberly on January 17, 1994, and examined her after the surgery when the foot plate was in place. He removed the external fixator and percutaneous pins on March 2, 1994. Dr. Jaglan's testimony included his statement that his assistant, Dr. Wardell, dictated a report on Kimberly's operation nearly two months after it occurred. In defendant's case in chief, Dr. Jaglan testified that on January 25, 1994, he removed the straps and foot plate to inspect Kimberly's foot and ankle and saw no ...

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