RITA STEELE, Special Administrator of the Estate of Michelle Koenig, Plaintiff-Appellee,
PROVENA HOSPITALS, d/b/a St. Mary's Hospital; TIMOTHY MORAN, M.D.; and ECHO MANAGEMENT AND CONSULTING GROUP, LLC, Defendants-Appellants.
Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, Appeal Nos. 3-11-0374 and 3-11-0375 Circuit No. 07 L 18, Honorable Kendall Wenzelman, Judge, Presiding.
Presiding Justice Wright and Justice Schmidt concurred in the judgment, with opinion.
¶ 1 Rita Steele, plaintiff and special administrator for the estate of Michelle Koenig, filed suit against emergency room doctor Timothy Moran and his employer, Echo Management and Consulting, for the wrongful death of her daughter, Michelle, due to alleged medical negligence. She also sued Provena Hospitals, d/b/a St. Mary's Hospital, alleging that Moran acted as its agent and it was, therefore, vicariously liable for her daughter's death. The jury rendered a verdict awarding Steele, Todd Koenig, Michelle's father, and Jessica Watts, Michelle's half-sister, $1.5 million. Provena and Moran have both appealed. We reverse and remand on Moran's appeal and enter judgment notwithstanding the verdict in favor of Provena.
¶ 2 FACTS
¶ 3 I. Michelle's Recent Medical History
¶ 4 On January 13, 2006, Michelle went to the office of her primary care physician, Dr. Gregory Trapp, complaining of a sore throat and cough. His nurse-practitioner ordered a throat culture, which was positive for streptococcus infection. Michelle was prescribed an antibiotic, amoxicillin, and did not subsequently return to Dr. Trapp's office.
¶ 5 On February 9, 2006, Michelle began to feel ill at work. Her symptoms included difficulty speaking and partial paralysis on her right side. She was picked up from work and taken home by her mother, but later that day was transported by ambulance to Riverside Hospital in Kankakee, where she was seen and evaluated by Dr. Trapp, her personal internist. Dr. Trapp performed a physical examination and initially thought she had suffered a stroke, blood clot, or cranial bleed. He ordered tests, which he and a consulting neurologist, Dr. Bruce Dodt, thought supported a diagnosis of multiple sclerosis. He arranged for Michelle's transfer from Riverside to the Chicago Institute of Neurology and Neurosurgery (CINN), where she underwent a number of tests, including a spinal tap requiring a lumbar puncture. The doctors at CINN diagnosed either presumptive multiple sclerosis (which they described to Dr. Trapp as rapidly progressing) or lupus. They began a course of steroids while she was hospitalized, and discharged her on February 13 or 14 with instructions to continue on steroids, starting with a daily dose of 60 milligrams of prednisone and tapering to 40 milligrams per day by February 22. She was to return to CINN for further treatment.
¶ 6 On Sunday, February 19, Michelle began experiencing severe back pain and a cough. At the insistence of her mother, Rita, Michelle was taken by ambulance to St. Mary's Hospital for emergency treatment. Upon arrival at the hospital, Michelle was given a consent-to-treatment form to sign. Although neither she nor Rita read the form, Rita printed her daughter's name and directed Michelle to sign it.
¶ 7 Michelle was treated by Dr. Timothy Moran in the emergency department at St. Mary's. He was provided with Michelle's medical history, including her current use of steroids and the recent diagnosis of presumptive multiple sclerosis/lupus and the fact that she had had chicken pox. Michelle's chief complaint in emergency on February 19 was back pain which limited her ability to get around. She told Dr. Moran that she had recently undergone a lumbar puncture.
¶ 8 Dr. Moran performed a physical examination and he treated her back pain with both a pain medication and a muscle relaxant, which relieved her discomfort enough for Michelle to walk around and to use the bathroom on her own. Moran also ordered several diagnostic tests, including blood work, chemistry and metabolic testing, urinalysis and lumbar spine X-rays. He consulted with Dr. Leonard Cerullo, one of Michelle's physicians at CINN, and learned from him that the results of her tests at CINN were still incomplete. He also spoke with Dr. Khan, an internist who was on call for Dr. Trapp but who declined to come to the emergency room, instead advising that Michelle should see Dr. Trapp in the office the following day.
¶ 9 During his examination, Dr. Moran observed a rash on Michelle's head, chin, chest and upper back, which he described as "scattered red papular vesicular lesions." A papular lesion is a raised lesion or red bump, and a vesicle is a small blister within the skin. Dr. Moran later testified that he did not think this rash looked like chicken pox because Michelle did not have the dry and crusty lesions he believed she would have exhibited if the virus had developed within the past 24 hours, and they were not itching.
¶ 10 Results of the testing showed she had no fever, her urinalysis was negative for nitrites, leukocyte esterase, significant protein and blood. She did have a white blood cell count of 19, 000 and her liver enzymes were somewhat elevated. Although Dr. Moran noted the elevated enzymes, he formed "no opinion" at that time as to the reason for the elevation, nor did he know that chicken pox could be a cause.
¶ 11 Dr. Moran released Michelle that same night with instructions to continue the pain medication and muscle relaxant, to follow up with Dr. Trapp the next day (Monday), and with Dr. Cerullo at CINN as previously scheduled.
¶ 12 Michelle did not see Dr. Trapp during the day on Monday, but at 6:40 p.m. on that evening, February 20, she again presented for emergency care, this time at Riverside where she had been evaluated on February 9. She was again complaining of back pain and abdominal discomfort/nausea.
¶ 13 (The following portion of Michelle's medical history, set forth in paragraphs 14 through 18, was deemed irrelevant to the standard of care and was excluded from the jury by order of the trial court. The information is summarized from the deposition testimony of Dr. Manczko, Dr. Trapp, and Dr. Ramani. We include it here because it forms the basis of a significant issue on appeal.)
¶ 14 At Riverside, Michelle was first seen by emergency department physician Dr. Thaddeus Manczko. Because he had no independent recollection of these events, his deposition testimony was drawn from his notes and the hospital's comprehensive chart. Manczko said Michelle presented with radiating pain in her lower back and abdominal discomfort. He observed residual right-side weakness, some symptoms of mild dehydration and of infection, bruising around the lumbar puncture site, and pale skin, and he specifically noted "no skin lesions to suggest shingles." He called in Dr. Trapp because, as Michelle's primary care physician, he would be able to admit her to the hospital if that became necessary.
¶ 15 Tests were ordered on February 20–some by Manczko and some by Trapp–which showed a white blood cell count that had more than doubled from the 19, 000 finding at St. Mary's to 39, 000 and liver enzymes that had dramatically increased. Manczko thought these results were consistent with infection but could also result from stress, medication, hepatitis, or inflammation (epidural abscess). He stated he could not base a final or ultimate diagnosis on that information alone, nor was he, as an emergency room physician, in a position to rule out multiple sclerosis or viral infection as the cause of her symptoms. In light of the incomplete information available to him, he made a primary diagnosis of abdominal pain, a secondary diagnosis of low back pain, and noted a need to rule out an epidural abscess resulting from lumbar puncture.
¶ 16 After being called in, Dr. Trapp assumed the triaging function and primary responsibility for Michelle's treatment. He secured consults with three specialists: Dr. Ed Jerkovic (gastrointestinal), Dr. Bruce Dodt (neurology), and Dr. Ram Ramani (infectious diseases). Dr. Ramani did not examine Michelle until Tuesday (February 21), and by then her white blood cell count had risen to 50, 000 and her liver enzymes had escalated still further. When asked during his deposition whether he was comfortable with his diagnosis of her at Riverside, Dr. Trapp responded:
"We were unsure what caused it, but the concern was that the liver was failing in front of our eyes. Her numbers multiplied by thousand-fold in 12-15 hours. And she was showing signs of not just that, but the synthesis or the function of the liver was also failing."
¶ 17 All four doctors were extremely concerned by the combination of Michelle's escalating liver enzymes and white blood cell count, her "strange" multiple sclerosis diagnosis, and the declining function of her liver. Dr. Jerkovic insisted that she be airlifted to Northwestern Memorial Hospital because he believed she needed an immediate liver transplant and she had a better chance of moving to the top of the transplant list there than at Riverside.
¶ 18 Dr. Ramani, the infectious disease specialist, included in the "impressions" in his report the need for a Tzanck smear and a "herpes PCR" to rule out herpes. He also considered acute hepatitis, noting that "liver function rates were normal 2 days ago [February 19]" and suggesting such hepatitis could be "possibly related to medications and steroids." The third "recommendation" in Dr. Ramani's report was "IV acyclovir to be discussed and decided upon." Neither he nor any other of the doctors who examined and treated Michelle at Riverside diagnosed disseminated varicella zoster or recognized her rash as any form of chicken pox.
¶ 19 (This is the end of the recitation of excluded factual evidence.)
¶ 20 On February 21, 2006, Michelle was transported to Chicago but was dead on arrival at Northwestern Memorial Hospital. An autopsy determined the cause of death was systemic failure caused by disseminated varicella zoster infection.
¶ 21 II. Procedural History
¶ 22 On July 19, 2007, Rita Steele, as special administrator of Michelle's estate, filed suit against Dr. Moran and his employer, Echo Management and Consulting, alleging the wrongful death of her daughter due to medical malpractice and a survival action. At issue was whether Dr. Moran breached the standard of care that he, as an emergency room physician, owed to Michelle and, if so, whether that breach was a proximate cause of her death.
¶ 23 If plaintiff has sustained her burden of proof on this issue, she also has the burden of proving (1) current and potential damages to the members of Michelle's family attributable to her death (wrongful death action), and (2) damages sustained by Michelle and payable to her estate for pain and suffering attributable to the breach (survival action).
¶ 24 Steele also sued Provena Hospitals d/b/a St. Mary's Hospital, alleging Dr. Moran was its agent and it was, therefore, vicariously liable for Michelle's death. At issue in this claim is whether Provena held Dr. Moran out as its agent (actual agency) or whether Michelle or someone lawfully acting as her agent reasonably relied on a reasonably held belief that he was the hospital's agent (apparent agency).
¶ 25 In preparation for trial, the parties filed disclosures pursuant to Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007). Some of those disclosures were the focus of evidentiary challenges during trial. Dr. Moran's Rule 213(f)(3) disclosures indicated that he would testify from the St. Mary's hospital medical records, and any reasonable inferences therefrom, about his care and treatment of Michelle on February 19, 2006, and any knowledge and observations he had surrounding the occurrence of Michelle's admission to St. Mary's. Dr. John Segreti, an infectious disease expert proffered by the defendants, included in his Rule 213(f)(3) disclosures that he would not be rendering an opinion on the standard of care of an emergency room doctor. Steele's Rule 213(f)(1) disclosures indicated that she would be providing lay testimony about the facts and circumstances concerning the care and treatment of Michelle at St. Mary's on February 19, 2006, and her memory of the events and treatment prior Michelle's death, including conversations with medical personnel and observations she made at that time.
¶ 26 Before trial, the court issued the following rulings on specific motions in limine pertinent to this appeal: (1) barring Steele from eliciting opinions outside those disclosed in her Rule 213 disclosures or expert depositions; (2) barring the defendants from calling subsequent treating physicians and introducing evidence of subsequent treatment at Riverside Hospital in Kankakee, specifically the fact that no doctor at Riverside diagnosed Michelle's chicken pox or disseminated varicella zoster infection; (3) barring the defendants from presenting testimony from doctors who treated Michelle at a medical facility in Chicago about the diminished quality of life of a person with multiple sclerosis; (4) barring testimony from Dr. Moran as to why Michelle's liver enzymes were high because such testimony was not presented during his deposition; (5) permitting testimony about Michelle's future plans to go to community college; (6) barring the defendants from presenting a sole proximate cause defense because Moran presented no evidence to support this theory; (7) permitting certain of plaintiff's lay witnesses to testify that Michelle's rash "looked like chicken pox"; and (8) barring the defendants from presenting testimony from Michelle's grandmother that Steele "gave up parental rights of Michelle Koenig from ages fourteen to eighteen."
¶ 27 The case was tried to a jury. Dr. Moran was called by both sides. Kristen Bien, Michelle's friend; Jacqueline Boomsma, the emergency medical technician (EMT) who transported Michelle to St. Mary's; and Rita Steele all testified that Michelle had a rash that "looked like chicken pox." Steele testified as an occurrence witness to the events surrounding Michelle's treatment in the emergency room at St. Mary's and was also allowed to testify on the agency issue. She—along with Michelle's father, Todd Koenig, and her half-sister, Jessica Watts —provided evidence of their loss-of-society damages resulting from Michelle's death. Plaintiff called two experts—Dr. Fred Zar, an infectious disease specialist, and Dr. Robert Mulliken, an emergency room physician—to testify to the nature and breach of Dr. Moran's standard of care.
¶ 28 Dr. Moran called as his experts Dr. John Ortinau, an emergency room doctor, who testified that the standard of care was not breached, and Dr. John Segretti, an infectious disease specialist, who was offered solely on the issue of proximate cause and who testified that nothing Dr. Moran did or did not do on February 19 could have led to a different result.
¶ 29 Dr. Moran also made an offer of proof outside the presence of the jury presenting evidence through live testimony and depositions of (1) Michelle's subsequent treatment at Riverside on February 20 and 21 and (2) the fact that none of the several doctors who evaluated and treated her had diagnosed either chicken pox or disseminated varicella zoster infection. As part of this offer of proof, Drs. Zar and Mulliken (plaintiff's experts) testified that they reviewed Michelle's February 20 and 21 records from Riverside and learned that no doctor there had diagnosed her with chicken pox or disseminated varicella zoster. The purpose of the offer of proof was to preserve for review the trial court's refusal to allow this evidence to be heard by the jury.
¶ 30 The jury rendered a verdict in favor of plaintiff and against all defendants in the amount of $1, 500, 000.
¶ 31 Provena and Moran filed separate appeals which have been consolidated in this court. Fifteen issues are raised by Moran and six by Provena. Any necessary additional facts will be presented and discussed in our consideration of these issues.
¶ 32 ANALYSIS
¶ 33 I. Appeal of Dr. Moran, No. 3-11-0375
¶ 34 A. Evidentiary Issues Related to Alleged Medical Negligence
¶ 35 In general, evidence must be legally relevant to be admissible. People v. Kirchner, 194 Ill.2d 502, 539 (2000). Evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than without the evidence. Ford v. Grizzle, 398 Ill.App.3d 639, 646 (2010). We review a trial court's ruling on matters of evidence for an abuse of discretion. Gunn v. Sobucki, 216 Ill.2d 602, 609 (2005).
¶ 36 1. Lay testimony that rash "looked like chicken pox"
¶ 37 We consider first Dr. Moran's challenge to the trial court's decision to allow three lay witnesses—Rita Steele, Kristen Bien, and Jacqueline Boomsma—to testify that Michelle's rash "looked like chicken pox." He contends the testimony was tantamount to a medical judgment, was unwarranted, and was unfairly prejudicial. He also challenges allowing plaintiff's counsel to comment on that testimony in a later examination, over his objection, and in closing argument.
¶ 38 Steele argues that Dr. Moran did not properly preserve this issue for appellate review and it is, therefore, forfeited.
¶ 39 For the reasons that follow, we find that the issue has not been forfeited and that the decision to allow the testimony as framed was reversible error.
¶ 40 With regard to the forfeiture issue, a party may not rely on a court's ruling on a motion in limine to preserve an error for appellate review. Cunningham v. Millers General Insurance Co., 227 Ill.App.3d 201 (1992). Thus the party contesting the testimony must object the first time the testimony is introduced. Cunningham, 227 Ill.App.3d at 206. In the absence of a proper objection, the matter is forfeited. Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill.2d 498, 502 (1994).
¶ 41 Here the record indicates that before Bien and Boomsma testified, Dr. Moran renewed his objection to any mention that Michelle's rash looked like chicken pox. On the day that Steele testified, the court stated that its prior rulings remained in effect concerning the motions in limine and that if the parties felt it necessary "to step up and put it in the record again, that [was] fine." We understand the court's statement to be a reiteration of its ruling that it would allow that testimony in. On these facts, we find this issue has not been forfeited for purposes of appellate review.
¶ 42 Similarly, Dr. Moran objected repeatedly to the use of the testimony of these witnesses that the rash "looked like chicken pox" in the examination of one of his experts, Dr. Ortinau.
¶ 43 However, with regard to Dr. Moran's complaint that plaintiff's counsel expressly and improperly characterized this testimony as a "diagnosis" of chicken pox during closing argument, we find that no contemporaneous objection was made and that this claim has been forfeited. We note that the trial court later attempted to cure the improper argument by instruction to the jury.
¶ 44 Turning now to the merits of the issue which was preserved, we consider first the nature of the testimony. Each of the three women was allowed to testify that the rash "looked like chicken pox." We believe this decision was error for three reasons.
¶ 45 First, we question the relevance of their testimony to any element of the negligence claim. The conclusion of three witnesses, without medical training, that the rash "looked like chicken pox" is irrelevant to a determination of the proper standard of care, Dr. Moran's possible breach of that standard, or whether any breach by Dr. Moran was the proximate cause of Michelle's death. While their contention that the rash "looked like chicken pox" has little or no probative value, it does pose a substantial risk, just standing alone, of unfair prejudice.
¶ 46 Second, defendant challenges the testimony as tantamount to a medical diagnosis; plaintiff responds that it is merely a description of the rash. We believe defendant's characterization of the testimony to be more accurate.
¶ 47 A "description" of the rash would be, for example, it was flat or raised, pink or red, blistery or solid, clustered or isolated, hot or cool to the touch, etc. Instead, each witness's attestation that it "looked like chicken pox" was, in essence, an assurance to the jurors that (1) she knew what chicken pox rash looked like, and (2) she was able to conclusively distinguish it, as indicative of chicken pox, as opposed to the myriad other rashes which can appear on the human body. Such implicit assurances were clearly without basis with regard to two of the witnesses in light of Bien's admission that, other than having had chicken pox as a child, she had never seen a rash like that one and Boomsma's affidavit that she had no training in diagnosing diseases.
¶ 48 We note that these witnesses were neither tendered nor qualified as experts by plaintiff; they were lay witnesses. A lay witness may offer opinion testimony provided that it is helpful to a clear understanding of her testimony or a determination of a fact at issue. Freeding-Skokie Roll-Off Service, Inc. v. Hamilton, 108 Ill.2d 217, 222-23 (1985) (citing Fed.R.Evid. 701(b)). The opinion testimony of a lay witness must also be rationally based on the witness's perception. Hopkinson v. Chicago Transit Authority, 211 Ill.App.3d 825, 846 (1991). However, a lay witness may not offer testimony pertaining to a specific medical diagnosis unless he or she is properly qualified as an expert to give such testimony. See Robinson v. Wieboldt Stores, Inc., 104 Ill.App.3d 1021, 1026-27 (1982).
¶ 49 Because we find that the testimony is the functional equivalent of a medical diagnosis, we conclude that the trial court erred in allowing the witnesses to frame their testimony in this manner.
¶ 50 Third, in addition to the testimony itself, the record shows that plaintiff was allowed, over multiple objections by defendant, to mischaracterize that description when examining defendant's expert, Dr. Ortinau. Plaintiff's counsel finessed their testimony as a diagnosis not only of chicken pox, but also "varicella zoster virus" and "disseminated varicell ...