Medical Malpractice Motion 20 - plaintiff's opposition to remittitur of judgment - Part 2

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IV. Plaintiffs Did Not Violate Illinois Supreme Court Rule 213

Preliminarily, plaintiffs note that “a trial judge's determination on the admissibility of expert testimony is a decision left to that judge's sound discretion.” Southwestern Illinois Development Authority v. Al-Muhajirum, 348 Ill.App.3d 398, 401,809 N.E.2d 730, 733, 284 I.Dec. 164, 167 (5th Dist. 2004).

However, defendant hospital first argues that plaintiffs elicited an undisclosed standard of care opinion from Memorial Hospital Vice President of Nursing, Nancy Weston. In its post-trial motion, defendant hospital cites a portion of the questioning and Ms. Weston's answer, but does not put the objection in context.

On Ms. Cates' cross-examination of Weston as an adverse witness, defense counsel objected to the following line of questioning:

Q. Do you believe that patients in a hospital such as Memorial in order to comply with national standards in 1999 deserved to - the high quality, cost-effective services to people residing in Southwest Illinois which promote health, prevent disease and treat and manage illness?

MR.BOTT: And just for the record, Your Honor, I'm going to make a 213 objection to any opinion testimony of standard of care from this witness as not disclosed.

THE COURT: Overruled.

MR. BOTT: And may I then have a continuing objection to such opinions?

THE COURT: Sure

MR. BOTT: Thank you.

Q. (By Ms. Cates) Do you believe that in 1999 a patient in this country in the United States under JCAHO standard was entitled to high-quality, cost-efective services if you resided in Southwest Ilinois which promoted health, prevented disease and treated and managed illness?

A. Yes, I do.

Q. And that would be a standard of care, wouldn't it

A. That's not how I interpret a standard of care. A standard of care is an action or an intervention evidence-based.

Q. Okay. Well, the judge will instruct the jury on standard of care.

A. Okay. But I agree with your statement.

(Tr. 185-186.)

Therefore, Ms. Cates' questioning was on the general entitlement of patients under the Joint Commision on Accreditation of Healthcare Organizations standard Ms. Weston did not comment on standard of care for Memorial Hospital - she even stated that Ms. Cates' statement was not how she interpreted the “standard of care.” The line of questioning concluded with Ms. Cates stating that the jury would be instructed on standard of care by the Judge in this matter.

Similarly, on questioning of Kathleen Schmidt, Nursing Director of Memorial Hospital, plaintiffs' counsel questioned with regard to whether a nurse's failure to investigate a bruise on a patient was a deviation from the standard of care. (Tr. 367.) Defense counsel objected on the basis of Rule 213, apparently for failure to disclose the opinion. This nurse was an employee of the defendant at the time Joyce Cretton was a patient at Memorial Hospital. Rule 213 did not require the kind of disclosure sought by defendant.

Moreover, plaintiffs offered the following disclosure of the witness in “Plaintiffs' 213(0 Disclosure” submitted before trial:

Kathleen Schmidt Evansville, Illinois

Kathleen Schmidt may testify and give opinions regarding the medical care and treatment rendered to Joyce Cretton at Memorial Hospital in February, 1999. See medical records and other documents produced in discovery to date and November 9, 2001 deposition of Kathleen Schmidt, for additional opinions and subjects of testimony.

Certainly questioning defendant's own employee regarding a nurse's treatment or failure to treat cannot be deemed a surprise to the defendant hospital. Furthermore, defendant was put on notice that Ms. Schmidt would give opinions through the above disclosure related to the “the medical care and treatment rendered to Joyce Cretton at Memorial Hospital” in February of 1999.

Additionally, the use of the Neurology in Clinical Practice and other similar texts iin cross-examination of expert witnesses is supported by Illinois case law:

The unsatisfactory quality of expert testimony has been the subject of frequent comment, and it has induced judicial action. (Citations omitted.) An individual becomes an expert by studying and absorbing a body of knowledge. To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is expressed in treatises or periodicals written for professional colleagues. (Citation omitted.) The author's competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject.

Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 335, 211 N.E.2d 253259 (II 1965)

The defendant cites Jager u Libretti, 273 Ill.App.3d 960, 652 N.E.2d 1120, 210 Ill Dec. 144 (1st Dist. 1995), for the proposition that plaintiffs improperly attempted to read into evidence a patient's emergency room records containing another doctor's opinion of the case at hand. The emergency room records scenario cited by defendant

However, in the second “colloquy,” the court stated that the examination “provides an example of what the supreme court said was permissible, namely, allowing [counsel] to test the expert's opinion by asking if other facts, data, or opinions would alter his opinion.” Id. at 966. Further, just as in the Cretton matter where plaintiffs' counsel attempted to impeach defendant's expert witness:

Essentially, an expert may be cross-examined with respect to reports he did not review and did not rely upon, if those reports are truly used as tools for impeachment, rather than a Trojan Horse used to sli hearsay evidence into the trial.

Id Therefore, plaintiffs' counsel in this instance properly cross-examined the witness in that respect

V. The Use Of Dr. Harry Parks' Discovery Deposition Was Proper

Plaintiffs' originally took the deposition of Dr. Harry Parks on February 13,2002. However, quite unexpectedly prior to trial, Dr. Harry Parks died. Because plaintiffs intended to call Dr. Parks as an expert witness in the Cretton trial, plaintiffs were forced to read into evidence the discovery deposition of Dr. Parks as though taken as an evidence deposition.

“Illinois is unique in that it distinguishes between discovery depositions and evidence depositions; that difference is significant in that discovery depositions are primarily used to obtain information, to commit witnesses to particular stories, and to obtain admissions whereas evidence depositions are fully admissible as to what an unavailable witness would testify if present in the courtroom.” Ainsworth Corp. v. Cenco, Inc., 158 Ill.App.3d 639, 646, 511 N.E.2d 1149, 1153-1154, 110 III.Dec. 829, 833-834 (1st Dist. 1987). “The decision to allow or exclude expert testimony is a matter committed to the sound discretion ofthe circuit court.” Huelsmann v. Berkowitz, 210 Ill.App.3d 806, 810, 568 N.E.2d 1373,1376,154 I11.Dec. 924,927 (5th Dist. 1991). In so doing, the circuit court may properly consider the following factors: 1) surprise to the adverse party, 2) the prejudicial effect of the testimony, 3) the nature of the testimony, 4) the diligence of the adverse party, 5) the timely objection to the testimony and 6) the good faith of the party calling the witness. Id.

The use of a discovery deposition in cases where the deponent has died prior to trial is further permitted by Illinois Supreme Court Rule 212. Section (a)(5) of the rule clearly states:

[A discovery deposition may be used] upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither a controlled exert witness nor a party, the deponent's evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice among the parties. (Emphasis added.)

In this case, defendant hospital appeared at Dr. Parks' discovery deposition. Dr. Parks' had not been retained as plaintiffs' controlled expert witness and his evidence deposition had not been taken. Plaintiffs had no intention of reading Dr. Parks' deposition at trial. His death was a surprise to both parties. The defendant was no more prejudiced by Dr. Parks' death than the plaintiffs were - in fact, if anyone was prejudiced by being forced to read his testimony it was the plaintiffs. Moreover, plaintiffs informed both the Court and opposing counsel as soon as they learned their intended expert had unexpectedly died. Plaintiffs certainly used the deposition in good faith as a “last resort.”

VI. The Court Did Not Err In Admitting Unredacted Coroner's Death Certificate

Contrary to defendant's assertions, the Coroner's Death Certificate was properly admitted into evidence under Illinois law. The applicable statute on “Records of the coroner's medical or laboratory examiner as evidence” states:

In any civil or criminal action the records of the coroner's medical or laboratory examiner summarizing and detailing the performance of his or her official duties in performing medical examinations upon deceased persons or autopsies, or both, and kept in the ordinary course of business of the coroner's office, duly certified by the county coroner or chief supervisory coroner's pathologist or medical examiner, shall be received as competent evidence in any court of this State, to the extent permitted by this Section.

These reports, specifically including but not limited to the pathologist's protocol, autopsy reports and toxicological reports, shall be public documents and thereby may be admissible as prima facie evidence of the facts, findings, opinions, diagnoses and conditions stated therein.

A duly certified coroner's protocol or autopsy report, or both, complying with the requirements of this Section may be duly admitted into evidence as an exception to the hearsay rule as prima facie proof of the cause of death of the person to whom it relates. The records referred to in this Section shall be limited to the records of the results of post-mortem examinations of the findings of autopsy and toxicological laboratory examinations.

725 ILCS 5/115-5.1. Further, Fifth District case law reinforces the statute. In People v. Kennedy, 150 Ill.App.3d 319, 501 N.E.2d 1004, 103 Ill.Dec. 687 (5th Dist. 1986), the court held that a certified copy of a death certificate is admissible as prima facie evidence of the facts, findings, opinions, diagnosis and conditions stated therein. Id. at 322.

Finally, the probative value of Joyce Cretton's death certificate was not outweighed by its prejudice. As a result of the coroner's autopsy, the death certificate contained a statement that the cause of death resulted from an injury occurring on February 24, 1999. However, there was no evidence in the medical record of a reported injury. Additionally, the hospital had consistently taken the position that they were not aware of an injury and that an injury had not, in fact, occurred. Because of the lack of evidence otherwise, the coroner's death certificate was probative of the contested issues in this case and was not prejudicial to Memorial Hospital.

VII. The Court's Trial Sanctions Were Appropriate In Light of Defendant and Defense Counsel Misconduct

Defendant hospital improperly withheld admissible evidence by burying it under the guise of protected information by the Medical Studies Act, 735 ILCS 5/8-2101. This Court appropriately stated early on in the trial that “the Medical Studies Act is not designed to be a shell game of the truth.” (Tr. 50.)

Illinois case law also makes clear that the Medical Studies Act is not an instrument hospitals may use in an effort to hide relevant information. For instance, information that was obtained before peer review, or information that was acquired before peer review and was later furnished to a peer review committee is not privileged information protected by the Medical Studies Act. During the course of this trial, the Court noted handwritten dating and descriptions of documents pre-dating the March 3 - March 11, 1999, Cretton peer review committee formed at Memorial Hospital. The Court properly released documents #21 and #22.

The Illinois Supreme Court has stated that “where the [peer review] committee is one comprised of the hospital's medical staff, the committee must be involved in the peer-review process before the privilege will attach.” Roach v. Springfield Clinic, 157 Ill.2d 29, 40, 623 N.E.2d 246, 251, 191 Ill. Dec. 1, 6 (Ill. 1993). In Roach, the Court looked to the following similar factors when determining the records at issue where outside of the protection of the Medical Studies Act:

As our prior review of the facts indicated, the only ‘committee mentioned in the record was Memorial's department of anesthesiology, and Draper's conversations with Dentinger and Funk took place before the monthly meeting at which the department was apprised of the delay in providing [the plaintiff] with adequate anesthesia.

The information obtained by Draper and Dentinger in the course of his conversations was not transformed into ‘information of the anesthesiology department merely because Draper reported the incident to that body sometime later.

Id. at 41. As properly noted by this Court, the recorded notes of Phillip Schortheide were prepared prior to the date on which the Quality Assurance Committee was initiated. The Roach court cautioned against this type of improper shielding of information:

If the simple act of furnishing a committee with earlier-acquired information were sufficient to cloak that information with the statutory privilege, a hospital could effectively insulate from disclosure virtually all adverse facts known to its medical staff; with the exception of those matters actually contained in the patient's records. As a result, it would be substantially more difficult for patients to hold hospitals their wrongdoing through medical malpractice litigation. So protected, those institutions would have scant incentive for advancing the goal of improved care. The purpose of the act would be completely subverted.

Id. at 41-42.

The defendant hospital alleges that contrary to the Court's sound judgment, the documents revealed to plaintiffs just prior to trial and during the course thereof were actually prepared at the bequest of the Cretton peer review committee formed at Memorial Hospital. But as Chicago Trust Company v. Cook County Hospital (cited by defendant) points out, blanket conclusions that information was generated at the bequest of a reviewing committee is not enough to invoke the protection of the Medical Studies Act. Id. at 298 III.App.3d 396, 404, 698 N.E.2d 641, 647, 232 Ill. 556 (1st Dist. 1998). Even where, as in this case, an affidavit filed in support of the privilege, the affidavit is ineffective when the statement contained therein is “pure conclusion, bereft of facts.” Id.

Taking into account the defendant hospital's action concerning its improper withholding of information, it was not unfairly prejudiced by the Court's sanctions in this regard. Further, the defendants are no less guilty of an improper withholding because the misconduct was not discovered until the eve of trial. As the Court stated, plaintiffs did not waive a challenge to hospital's privilege log. Rather, the misconduct involving the Privilege Log “[took] the shape of a discovery fraud in the deposition of Schortheide.” (Tr. 51.) In sum, cumulatively both before and during trial, the defendant's conduct and that of its counsel warranted the Court's appropriate sanctions.

VIII. Defendant Hospital Received A Fair Trial Despite its Own Actions Which Elicited Unfavorable Media Coverage

Defendant hospital next argues that it was denied a fair trial due to the “adverse media coverage” which was published during the course of the trial. Defendant refers to the August 9, 2003, St. Louis Post-Dispatch article entitled “Lawyer alleges hospital cover-up in patient's death.” It alleges that this Court improperly denied their motion for mistrial on Monday morning, August 11, 2003. (Tr. 1047-1049.)

To begin, the adverse publicity generated by the Court proceedings was the result of the defendant's own misconduct in this case. To say that they were unfairly prejudiced by publicity the hospital and its counsel created is disingenuine. Additionally, defendant glosses over the fact that Harry Meier, CEO of Memorial Hospital, wrote his own, personalmanifesto on the Cretton facts, published in the Belleville News-Democrat with an accompanying article on August 8, 2003 one day before the Post article. In response to plaintiffs' objections to the Meier letter and article, the Court noted that his “observations were that nobody's carrying any newspaper, whether it's the News-Democrat or the Post or the Monitor of whatever.” 1 (Tr. 826.) Though the News-Democrat article was certainly poor “publicity” for plaintiffs, they did not request a mistrial. 2 (Tr. 828-829.) Moreover, defense counsel further claimed he did not want a mistrial in light of the News-Democrat article. (Tr. 838.) The defense in this case was therefore no more adversely affected by one newspaper article than were plaintiffs by another newspaper article. The Court properly denied a mistrial.

IX. Plaintiffs' Counsel's Closing Argument Was Proper

In response to defendant's many allegations of improper comment during closing arguments, plaintiffs again restate the proposition cited above that “counsel is afforded wide latitude in making a closing argument.” (Emphasis added.) Ellington v. Bilsel, 255 Ill.App.3d 233, 238, 626 N.E.2d 386, 389, 193 III.Dec. 353, 356 (5th Dist. 1993). Therefore, the comments of plaintiffs' counsel in her closing argument were proper. However, plaintiffs will nonetheless address defendant's comments.

First, to the extent that defendant criticizes plaintiffs' counsel's reference to the hospital as a company, plaintiffs point out that the Protestant Memorial Medical Center, INC., d/b/a Memorial Hospital of Belleville, is in fact a corporation. (Emphasis added.) Second, the criticisms of plaintiffs' counsel's supposed “lawyer-bashing” are addressed in this response, supra, and apply to this section as well. Third, plaintiffs' counsel did not “draw attention” to defendant's failure to call Dr. West as a witness. His name was mentioned in closing argument in reference to Joyce Cretton's COPD -a question of fact with regard to both the Survival and Wrongful Death counts. (Tr. 1051.) Fourth, plaintiffs' counsel offered an apology to the jurors in her closing due to the sometimes contentious and heated exchanges during the trial. (Tr. 1445-1446.) As this Court was able to distinguish, plaintiffs' counsel was merely explaining her conduct in the course of the trial rather than imparting “her personal feelings” about the case to the jury. (Tr. 1446.)

Lastly, plaintiffs' counsel did not make a “deliberate misrepresentation” of Dr. Parks' staff member status at Memorial Hospital. (Tr. 1499-1500.) Rather, it is defendant hospital who makes the misrepresentation in its Post-Trial Motion. In fact, the testimony of Dr. Parks that was read into evidence at trial demonstrated the following:

Q. So Memorial has certainly never questioned your veracity?

A. No. My relationship has been good there. I was on the staff and even after I left as director of laboratories, I held a position on the staff.

Q. What position

A. I was just one of the attending doctors.

Q. Do you still have privileges there?

A. No, not anymore.

(Tr. 913.) Therefore, Dr. Parks' testimony indicates that he was on staff at Memorial Hospital at the time of his examination of Joyce Cretton, but not at the time of the deposition in 2001. Plaintiffs' counsel did not misrepresent the testimony nor “was she aware it was false” as defendant hospital boldly asserts. Consequently, defendant was not prejudiced by such a statement Plaintiffs' counsel stands by her comments made in closing argument and recognizes the wide latitude she is offered in making her closing remarks.

X. The Court Did Not Improperly Comment In The Presence Of The Jury

Though defendant asserts that it was prejudiced by comments made by the judge in this trial, those comments cited by the defendant were in response to defendant's own misconduct throughout the trial. The Court was not indicating bias or prejudicing defendant in the presence of the jury. In fact, the Court's comments in this trial were more along the lines of those made by the judge in People v. Garrett, 276 Ill.App.3d 702, 658 N.E.2d 1216, 213 Ill.Dec. 195 (1st Dist. 1995).

In Garrett, the defendant argued that the judge's comments prejudiced defendant by showing bias in favor of the plaintiff. The judge had questioned defense counsel upon his examination of a witness and asked, “Are you prepared to say that this witness is a liar? Are you going to prove it? Id. at 712. The judge also reprimanded defense counsel during lengthy closing arguments by saying, “Close out your argument, sir. You're wasting your time.” Id.

The appellate court stated the judge's comments were not in error:

Reviewing the comments that the defendant cites, it is clear that the judge was attempting to control the trial rather than disparage defense counsel. Each of the comments had a valid basis and did not display a specific bias or prejudice against defense counsel.

Id. at 713. Much like in Garrett, this Court was forced to comment on the incomplete medical record and defendant's persistent attempts to take advantage of the tainted chart The comments cited by the defendant were clearly made in order to maintain control of the course of the trial as defense counsel continued to violate Court orders and attempt to withhold admissible evidence.

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