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Sullivan v. Edward Hospital

February 05, 2004

[5] JUANITA SULLIVAN, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF BURNS SULLIVAN, DECEASED, APPELLANT,
v.
EDWARD HOSPITAL ET AL., APPELLEES.



[6] The opinion of the court was delivered by: Justice Freeman

[7]  Docket No. 95409-Agenda 9-November 2003.

[8]  Plaintiff, Juanita Sullivan, individually and as special administrator of the estate of Burns Sullivan (Burns), brought a medical malpractice action in the circuit court of Du Page County. Plaintiff named as defendants Edward Hospital (the hospital) and Dr. Amelia Conte-Russian. Plaintiff claimed that the hospital, through one of its nurses, and Dr. Conte-Russian were negligent in the care and treatment of Burns. The trial court entered a directed verdict for the hospital after plaintiff's only medical expert was ruled incompetent to testify as to the standard of care for the nursing profession. The trial court subsequently entered judgment on a jury verdict in favor of Dr. Conte-Russian.

[9]  The appellate court affirmed. 335 Ill. App. 3d 265. We allowed plaintiff's petition for leave to appeal (177 Ill. 2d R. 315(a)), and now affirm the appellate court.

[10]   BACKGROUND

[11]   The record reveals the following pertinent facts. In March 1995, Burns suffered a second stroke, which resulted in partial paralysis to his right side, impairing his ability to walk independently. Also as a result of the stroke, Burns could not speak, but could understand others and respond with physical gestures. Since March 1995, Dr. Conte-Russian, a general internist, had been Burns' regular treating physician.

[12]   On November 1, 1997, Burns, then 74 years old, was admitted to the hospital for treatment of a urinary tract infection. While at the hospital, Dr. Conte-Russian was Burns' primary care physician. The hospital categorized a patient's risk of falling between two levels. A patient who has no impairments of any kind is characterized as a level I fall risk. A patient who has any physical or mental impairments that increase the risk of falling is characterized as level II. Because of Burns' history of partial paralysis, he was characterized as level II.

[13]   On the evening of November 2, 1997, nurse Carrie Lewis was Burns' primary nurse. Burns had been in his bed, equipped with four side rails, all of which were raised. Between 7 p.m. and 9:30 p.m., nurse Lewis went into Burns' room and found Burns attempting to get out of bed through the side rails. After each of the first two occurrences, nurse Lewis found Burns to be alert, oriented, and able to understand her instructions to stay in bed. After the third occasion, Burns still appeared alert and oriented. However, nurse Lewis became concerned because of Burns' failure to follow instructions and because Burns now appeared to be agitated. Nurse Lewis was concerned that Burns might again attempt to get out of bed and that he could fall if he did so.

[14]   Based on these concerns, nurse Lewis telephoned Dr. Conte-Russian at approximately 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 advised nurse Lewis that a posey vest might result in Burns becoming even more agitated. Rather than using a physical restraint, Dr. Conte-Russian ordered the administration of the drug Ativan to calm Burns and help him sleep. Dr. Conte-Russian prescribed a very small dosage and left it to nurse Lewis' discretion to administer more Ativan if needed.

[15]   At approximately 10 p.m., nurse Lewis administered to Burns one milligram of Ativan, which was expected to last for at least two hours. Between 10 p.m. and midnight, nurse Lewis and a nurse's aide checked on Burns approximately every half hour. By 10:30 p.m. Burns was asleep; he was sleeping at each half-hour check. At approximately 12:05 a.m., a nurse's aide walked past Burns' room and looked inside; Burns appeared to be sleeping. At 12:10 a.m., a monitor technician heard a noise in the area of Burns' room and so informed nurse Lewis. Upon receiving this report, nurse Lewis ran to Burns' room and found him on the floor with his head bleeding from a cut above his left eye. Apparently, Burns had attempted to get up from his bed and walk; however, he fell and struck his head on the hospital room floor. As a result of the fall, Burns developed a subdural hematoma, for which he received treatment. At the request of his family, Burns was subsequently transferred to another hospital.

[16]   On November 6, 1998, plaintiff and Burns filed a two-count complaint against the hospital and Dr. Conte-Russian. The complaint alleged that the hospital, through nurse Lewis, and Dr. Conte-Russian, failed to properly monitor, medicate, or restrain Burns. In count I, Burns sought damages for injuries proximately caused by defendants' negligence. In count II, plaintiff sought damages for loss of consortium. In September 1999, Burns died of a third stroke, which was unrelated to plaintiff's allegations of negligence. On December 28, 1999, Burns' death was formally reported to the trial court; plaintiff was appointed special administrator of Burns' estate and substituted as the sole plaintiff.

[17]   At trial, plaintiff attempted to establish the hospital's liability 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 observing and working with physicians and nurses in the area of patient fall protection. Plaintiff intended for Dr. Barnhart to testify to the applicable standards of care for physicians and nurses, and the failure of both Dr. Conte-Russian and nurse Lewis to meet their respective standards of care.

[18]   Dr. Barnhart testified as to the standard of care for a licensed nurse and the instances in which nurse Lewis deviated from the standard of care. According to Dr. Barnhart, one such instance included nurse Lewis' failure to properly communicate Burns' condition to Dr. Conte-Russian during their phone conversation. The trial court found that plaintiff did not properly disclose Dr. Barnhart's opinion on this issue during pretrial discovery, in violation of Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)). Therefore, the trial court struck the testimony relating to nurse Lewis' communications with Dr. Conte-Russian.

[19]   According to Dr. Barnhart, nurse Lewis deviated from the standard of care for a licensed nurse also by her failure to adhere to proper nursing procedures in the care and treatment of a patient. Dr. Barnhart opined that nurse Lewis, after having failed to receive Dr. Conte-Russian's approval to use a posey vest on Burns, should have gone up the nursing chain of command to pursue her concerns that Burns would attempt to get out of bed; that she should have provided for an alternative to the posey vest to protect against the risk of a fall; and that nurse Lewis should have had a sitter in Burns' room, or should have moved Burns' bed to an area where Burns could have received constant supervision. At the close of plaintiff's case, the trial court struck this testimony on the grounds that a physician is incompetent to testify to the standard of care placed upon a licensed nurse.

[20]   Dr. Barnhart was plaintiff's only medical expert as to the standard of care for the nursing profession. After the trial court ruled that Dr. Barnhart was incompetent to testify as to that standard, the court granted the hospital's motion for a directed verdict. Thereafter, the jury returned a verdict in favor of Dr. Conte-Russian and the trial court entered judgment thereon. The appellate court affirmed. 335 Ill. App. 3d 265.

[21]   This court allowed plaintiff's petition for leave to appeal. 177 Ill. 2d R. 315(a). We subsequently granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiff. We also granted the American Association of Nurse Attorneys leave to submit an amicus curiae brief in support of the hospital. 155 Ill. 2d R. 345. We will refer to additional pertinent facts as they relate to the issues plaintiff raises before this court.

[22]   ANALYSIS

[23]   I. Dr. Barnhart's Testimony

[24]   Plaintiff contends that the trial court erred in striking, as a discovery sanction, Dr. Barnhart's testimony relating to nurse Lewis' communications with Dr. Conte-Russian. Plaintiff also contends that the trial court erred in striking Dr. Barnhart's testimony relating to the standard of care for the nursing profession and, consequently, entering a directed verdict in favor of the hospital.

[25]   A. Discovery Violation

[26]   During pretrial discovery, plaintiff submitted a disclosure pursuant to Supreme Court Rule 213 (177 Ill. 2d R. 213), which disclosed the names and addresses of plaintiff's witnesses and "the subject of their testimony." This disclosure included Dr. Barnhart's name and address, and the following description of his anticipated testimony:

[27]  
"It is anticipated that Dr. Barnhart will testify that it is his opinion that Dr. Conte[-]Russian and Edward Hospital deviated from the accepted standards of medical care by disregarding Mr. Burns Sullivan's status as a level II fall risk suffered from cognitive impairment and inability to understand directions and was found trying to climb out of bed on three prior occasions even though he suffered from Hemi-paralysis. He will testify that Dr. Conte-Russian and the Edward Hospital staff should have restrained Mr. Sullivan in bed so that he could not get out. Further, he will testify that the attempt to sedate Mr. Sullivan by issuing medication as opposed to restraints was not properly performed. He will also testify that it is his opinion that Mr. Sullivan was not properly monitored during sedation despite his inability to understand direction and physical impairments. He will also testify that in his opinion Mr. Burns Sullivan's injuries were sustained as a result of medical negligence.
[28]  
Dr. Barnhart will testify that in his opinion, Dr. Conte-Russian, after having been advised of Mr. Sullivan's three prior attempts to get out of bed and remove his IV[,] should have ordered restraints for Mr. Sullivan. He will testify that in his opinion Dr. Conte-Russian and the Edward Hospital medical staff should have ordered restraints for Mr. Sullivan. That in his opinion, Dr. Conte-Russian and the Edward Hospital medical staff should have monitored Mr. Sullivan more frequently after the decision not to use restraints was made. That as a result of Dr. Conte-Russian's decision not to properly restrain Mr. Sullivan, he fell out of bed and sustained brain injury including a subdural hematoma."

[29]   At trial, Dr. Barnhart's testimony reflected this disclosure. However, he also testified that one instance where nurse Lewis deviated from the standard of care for professional nurses was her failure to adequately communicate Burns' condition to Dr. Conte-Russian during their phone conversation.

[30]   At the close of Dr. Barnhart's testimony, the hospital moved to strike that portion of his testimony relating to nurse Lewis' communication of Burns' condition to Dr. Conte-Russian. Plaintiff conceded that Dr. Barnhart's specific opinion regarding nurse Lewis' failure to adequately communicate with Dr. Conte-Russian was not included in plaintiff's Rule 213 disclosure. The trial court granted the hospital's motion to strike this testimony.

[31]   This cause was tried prior to the amendment of Rule 213 effective July 1, 2002, so we will refer to its preamendment version. Supreme Court Rule 213(g) requires that, upon written interrogatory, a party must disclose the subject matter, conclusions, opinions, qualifications, and all reports of a witness who will offer any opinion testimony. 177 Ill. 2d R. 213(g). Further, Supreme Court Rule 213(i) imposes on each party a continuing duty to inform the opponent of new or additional information whenever such information becomes known to the party. 177 Ill. 2d R. 213(i). The Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 21 (1999); Warrender v. Millsop, 304 Ill. App. 3d 260, 265 (1999). The admission of evidence pursuant to Rule 213 is within the sound discretion of the trial court, and the court's ruling will not be disturbed absent an abuse of that discretion. Susnis v. Radfar, 317 Ill. App. 3d 817, 828 (2000); Seef, 311 Ill. App. 3d at 22.

[32]   As noted, plaintiff concedes that Dr. Barnhart's specific opinion regarding nurse Lewis' failure to adequately communicate Burns' condition to Dr. Conte-Russian was not included in plaintiff's Rule 213 disclosure. However, plaintiff argues that the "gist" of Dr. Barnhart's trial testimony regarding nurse Lewis' telephone conversation with Dr. Conte-Russian was an "elaboration" or a "logical corollary" of, or "effectively" implicated, plaintiff's Rule 213 disclosure.

[33]   The trial court did not accept this argument, and neither do we. As the trial court reasoned, "you have to drop down to specifics." Rule 213 permits litigants to rely on the disclosed opinions of opposing experts and to construct their trial strategy accordingly. Firstar Bank of Illinois v. Peirce, 306 Ill. App. 3d 525, 532 (1999). The supreme court rules represent this court's best efforts to manage the complex and important process of discovery. One of the purposes of Rule 213 is to avoid surprise. 177 Ill. 2d R. 213(g), Committee Comments. To allow either side to ignore Rule 213's plain language defeats its purpose and encourages tactical gamesmanship. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537 (1998). Our appellate court has stated:

[34]  
" `Rule 213 establishes more exacting standards regarding disclosure than did Supreme Court Rule 220 ***, which formerly governed expert witnesses. Trial courts should be more reluctant under Rule 213 than they were under former Rule 220 (1) to permit the parties to deviate from the strict disclosure requirements, or (2) not to impose severe sanctions when such deviations occur. Indeed, we believe one of the reasons for new Rule 213 was the need to require ...

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