Caldwell v. Advocate Condell Medical Center
2017 IL App (2d) 160456
| Ill. App. Ct. | 2017Background
- Judith Caldwell sued Advocate Condell Medical Center after her 92-year-old mother, Jeannette DeLuca, choked on breakfast and died the morning after eye surgery; plaintiff alleged failure to monitor postoperatively and to ensure dentures were present/assisted while eating.
- Key factual points: DeLuca went to surgery with upper dentures and a lower partial plate; only upper dentures were documented removed for surgery and later noted as "upper dentures in mouth" in PACU notes; no chart entry showed removal of the lower partial plate.
- Multiple nurses, PCTs, and a nurse manager (Kathleen Likosar) handled DeLuca; Likosar performed a mouth sweep during the code and removed upper dentures and food fragments but did not recall a lower plate.
- Plaintiff moved to exclude defense experts’ opinions that both dentures were in place when DeLuca ate, to bar Likosar’s evidence deposition (contending improper notice and privilege issues), and sought a missing-witness jury instruction.
- Trial court admitted the deposition (videotape withdrawn), allowed experts Kopplin and Oosterbaan to testify that both dentures likely were in place, denied a missing-witness instruction, and a jury returned a verdict for Condell.
- On appeal Caldwell challenged: expert testimony on dentures, admission of Likosar’s evidence deposition and privilege rulings, alleged Petrillo violation (ex parte contact with Likosar), and denial of IPI 5.01; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of defense experts’ opinions that both dentures were in place | Opinions were speculative, factual (not medical) and improperly invade jury’s factfinding | Experts relied on records, depositions, clinical experience and gave reliable bases for opinions | Affirmed — experts qualified; opinions founded on record and experience; admissibility for jury to weigh |
| Admission of Likosar’s evidence deposition (notice under Rule 206) | Deposition taken without formal written notice and videotape—prejudicial; witness no longer under defendant's control | Counsel provided written e-mail confirming date; videotape was withdrawn; counsel agreed to date | Affirmed — adequate notice shown; videotape withdrawn so no Rule 206(a)(2) violation |
| Attorney-client/insurer-insured privilege objections during deposition | Likosar retired before evidence depo and is not in hospital control group, so communications not privileged | Likosar was an agent of Condell and insured under Condell’s self-insured trust; communications protected | Affirmed — privilege applied via insurer-insured/agency relationship; retirement irrelevant |
| Petrillo doctrine (ex parte contact with treating caregiver) | Defense counsel’s ex parte meeting with Likosar violated Petrillo ban on contacting treating caregivers | Plaintiff's complaint alleged hospital liability for nurses’ conduct; Morgan/Burger permit hospital counsel to interview the hospital’s own caregivers | Affirmed — no Petrillo violation; exception applies where hospital may be vicariously liable for its caregivers (Morgan/Burger) |
| Missing-witness instruction (IPI Civil 5.01) | Unknown PCT who handled postmortem care was under Condell’s control and not produced; instruction warranted | Testimony permitted reasonable inference that day-shift staff (e.g., Riek) could have done postmortem care; no established missing witness | Affirmed — trial court properly found no missing witness established and denied IPI 5.01 |
Key Cases Cited
- Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (Ill. App. 1986) (barred ex parte communications between defense counsel and plaintiff’s treating physicians as matter of public policy)
- Morgan v. County of Cook, 252 Ill. App. 3d 947 (Ill. App. 1993) (exception permitting hospital counsel to interview caregivers when hospital may be vicariously liable)
- Burger v. Lutheran General Hospital, 198 Ill. 2d 21 (Ill. 2001) (supreme court adopted Morgan rationale re: hospital access to caregivers’ information)
- Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103 (Ill. 1982) (control-group test for corporate attorney-client privilege)
- Snelson v. Kamm, 204 Ill. 2d 1 (Ill. 2003) (standard for admissibility of expert testimony; qualifications and reliable foundation required)
- Baylaender v. Method, 230 Ill. App. 3d 610 (Ill. App. 1992) (Petrillo principles applied to improper ex parte contacts where no agency/vicarious-liability relationship existed)