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Gallina v. Watson

December 20, 2004

VITO GALLINA, PLAINTIFF-APPELLANT,
v.
DR. MICHAEL WATSON AND MEMORIAL MEDICAL CENTER, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County. No. 99L78. Honorable Donald M. Cadagin, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

In January 2004, a jury found in favor of defendants, Dr. Michael Watson and Memorial Medical Center (Memorial), in a medical malpractice action filed by plaintiff, Vito Gallina. Gallina appeals, arguing the trial court erred by (1) granting Dr. Michael Watson and Memorial's motion in limine regarding the testimony of a defense expert witness and (2) refusing to allow plaintiff's exhibit No. 9 to be taken into the jury room during deliberations. We reverse and remand.

[9]     I. BACKGROUND

On March 9, 1997, Vito Gallina was injured in a head-on vehicle collision at over 85 miles per hour. Gallina fractured his jaw, left femur, pelvis, hand, and both ankles. Gallina also ruptured his spleen and suffered a loss of blood.

Gallina was taken to Memorial in Springfield for treatment. Dr. Michael Watson was on call the night of the accident and responded at Memorial. Multiple specialists, including Dr. Watson, treated Gallina after the accident. Dr. Watson treated the fracture of Gallina's talus bone by immobilizing the fracture with a splint. Dr. Watson testified he did not operate on Gallina's right ankle because it was acceptable not to do so and another surgery could have threatened Gallina's life due to the multiple surgeries already performed that night.

In March 1999, Gallina filed a complaint against Dr. Watson and Memorial. In January 2001, Gallina filed a three-count second-amended complaint against Dr. Watson and Memorial. Count I alleged Dr. Watson was negligent in his treatment of Gallina. Count II alleged Memorial was responsible for Dr. Watson's negligence based on agency. Count III alleged Memorial was responsible for Dr. Watson's negligence based on apparent agency.

In September 2003, Memorial filed a motion for summary judgment on count II of Gallina's second-amended complaint. The record does not reflect the trial court ever ruled on this motion. Memorial did not file a motion for summary judgment on count III of Gallina's second-amended complaint.

In January 2004, Dr. Watson filed a motion in limine to exclude testimony relating to Dr. Joseph Whalen's personal preferences for treating different types of fractures. Later that month, Memorial joined in Dr. Watson's motion in limine. After hearing arguments on the motion in limine, the trial court allowed the motion. As a result, the following testimony was deleted from the videotaped evidence deposition of Dr. Whalen:

"[MR. VERTICCHIO (plaintiff's counsel):] Would you be of the opinion that this type of controversial decision should have been discussed with the patient being allowed to make the decision as to what treatment he would opt for?

MR. KOKAL [(defense counsel)]: We still have our objection beyond the scope.

[MR. VERTICCHIO:] I understand you believe that. I don't necessarily agree with it.

[DR. WHALEN:] Well, I can't say what Dr. Watson did or said. I would present to the patient that it's this type of fracture. If you follow the instructions well, you do what I say, we won't need to do surgery. Surgery is an option. It carries its own risks such as further interfering with the blood supply. The healing potential is not really too much different between non-operative and operative treatment with [t]ype I fractures. Like I said, it's the experience of the surgeon, and it's a controversial area. I tend to be one that fixes them.

[MR. VERTICCHIO:] Thank you, Doctor. No further questions. Fix them--excuse me. Fix them by open reduction?

[DR. WHALEN:] All Type IIs, Type Is I may treat nonoperatively."

According to the testimony of Dr. Watson, he agreed with his resident's assessment in the preoperative diagnosis section of the operative report that Gallina had a type II fracture.

During the trial, Gallina introduced as evidence the written opinion disclosures of another of defendants' expert witnesses, Dr. Vilray Blair. Gallina asked the trial court to allow these disclosures, plaintiff's exhibit No. 9, to be taken by the jury into the jury room during its deliberations. The court denied this request.

The jury found against Gallina and for Dr. Watson ...


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