PONTIAC NATIONAL BANK, Administrator of the Estate of Christian Rivera, Deceased, Plaintiff-Appellant,
JAMES VALES, KAREN B. HARRIS, Cotrustee of the James B. Harris Residual Trust, and OSF HEALTHCARE SYSTEM, d/b/a St. Joseph PromptCare and d/b/a OSF Medical Group, Defendants-Appellees.
Modified Upon Denial of Rehearing August 19, 2013.
Appeal from the Circuit Court of McLean County. No. 05-L-58 Honorable Paul G. Lawrence, Judge, presiding.
Attorney for Appellant James P. Ginzkey
Attorneys for Appellees Joshua G. Vincent, Paul C. Estes, Jesse A. Placher, Hinshaw & Culbertson LLP
JUSTICE CATES delivered the judgment of the court, with opinion. Justices Welch and Goldenhersh concurred in the judgment and opinion.
¶ 1 The plaintiff, Pontiac National Bank, administrator of the estate of Christian Rivera, deceased, filed a wrongful death and survival action, asserting theories of medical negligence and institutional negligence, against the defendants, James Vales, Karen B. Harris, cotrustee of the James B. Harris Residual Trust, and OSF Healthcare System, d/b/a St. Joseph PromptCare and d/b/a OSF Medical Group. Following a trial, the jury returned verdicts in favor of all defendants. On appeal, the plaintiff contends that (a) the trial court issued erroneous rulings regarding the scope of cross-examination and the rehabilitation of one of its expert witnesses, (b) the trial court erred in hearing and granting an untimely motion for a summary judgment, and (c) the trial court erred in allowing a defense expert witness to offer opinions that were not disclosed more than 60 days before the trial. For reasons to be stated, we reverse the judgment and remand this case for a new trial.
¶ 2 During the evening of July 23, 2003, Christian Rivera, a three-year-old boy, was at his home with his grandparents when he collapsed and stopped breathing. Christian's grandparents called 9-1-1 and began cardiopulmonary resuscitation. Medics responded, assumed resuscitation efforts, and treated Christian during transport to St. Joseph Medical Center. Christian was evaluated in the emergency department. A chest X-ray revealed a massive mediastinal tumor. The tumor was wrapped around Christian's airway, compressing it. The tumor compromised the airway, causing respiratory failure and cardiac arrest. A biopsy of the tumor confirmed a diagnosis of non-Hodgkin's lymphoma. Neurological testing of Christian's brain revealed that he had suffered hypoxic, ischemic encephalopathy, a severe brain injury caused by oxygen deprivation, as a result of the cardiopulmonary arrest. Christian did not survive these injuries, and he passed away on August 18, 2003.
¶ 3 During the six-month period preceding the cardiopulmonary arrest, Christian had been evaluated and treated for respiratory symptoms at St. Joseph PromptCare (PromptCare), an urgent care clinic, and OSF Medical Group, a primary care center. At that time, OSF Healthcare System (OSF) owned both facilities.
¶ 4 On January 12, 2003, Christian presented to PromptCare with left ear pain and a history of a cough that increased at night. James Vales, M.D., a family practice physician employed by OSF, evaluated Christian that day. Dr. Vales noted that Christian's tonsils were red and swollen, that his left eardrum was red and had fluid behind it, and that his cervical lymph nodes were swollen. Dr. Vales diagnosed tonsillitis, otitis media, and bronchitis. He prescribed an antibiotic and instructed Christian's mother to follow up with Christian's primary care physician at OSF Medical Group if his condition changed or worsened. Five weeks later, Christian returned to PromptCare with a history of a weeklong cold with nasal congestion, a cough of two days' duration, and a right ear ache. Dr. Vales evaluated Christian and diagnosed bilateral otitis media. He prescribed an antibiotic and instructed Christian's mother to follow up with the primary care physician.
¶ 5 On June 18, 2003, Christian presented to PromptCare with a history of coughing at night. Dr. Vales evaluated Christian. He noted fluid behind both ears, redness of the eardrums, and nasal congestion. Dr. Vales diagnosed bilateral otitis media and an upper respiratory infection. He prescribed an antibiotic and a cough syrup, and he instructed Christian's mother to follow up with the primary care physician if Christian's condition changed or worsened.
¶ 6 On July 9, 2003, Christian returned to PromptCare with symptoms of wheezing and an occasional cough. Dr. Vales examined Christian and noted tightness in the chest, but no wheezing. Dr. Vales did not order a chest X-ray or any other diagnostic tests. He diagnosed left otitis media and bronchospasm. He prescribed a different antibiotic and albuterol syrup.
¶ 7 On July 14, 2003, Christian presented to OSF Medical Group with a cough and continued wheezing. He was evaluated by James Harris, a certified physician assistant (PA) employed by OSF. PA Harris noted scattered rhonchi with bilateral inspiratory-expiratory wheezing in the lungs. He did not order a chest X-ray or other diagnostic tests. PA Harris administered an albuterol treatment. He noted that the treatment resolved the wheezing, but the rhonchi remained. He diagnosed acute persistent bronchitis. PA Harris continued the albuterol syrup and the antibiotic, and he added a prescription for pediatric prednisone. He instructed Christian's mother to follow up as needed. Nine days later, Christian suffered the cardiopulmonary arrest.
¶ 8 The plaintiff filed a wrongful death and survival action on behalf of Christian Rivera, deceased, alleging theories of medical negligence and institutional negligence against the defendants. The plaintiff claimed that Dr. Vales was negligent in that he failed to order a chest X-ray, he failed to order diagnostic tests to assess Christian's chronic respiratory symptoms, he failed to obtain an infectious disease or pulmonary consultation, and he failed to review or appreciate the medical significance of Christian's recent medical history of chronic respiratory disease. The plaintiff claimed that PA Harris was negligent in that he failed to order a chest X-ray, he prescribed a steroid without first obtaining a chest X-ray, he failed to order diagnostic tests to assess Christian's chronic respiratory symptoms, he failed to obtain an infectious disease consultation or pulmonary consultation, and he failed to review and/or failed to appreciate the significance of Christian's past medical history of chronic respiratory disease. The plaintiff theorized that given Christian's symptoms of wheezing, a nocturnal cough, and ongoing upper respiratory ailments, a ...