Caldwell v. Advocate Condell Medical Center
87 N.E.3d 1020
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; claim: inadequate postoperative monitoring and failure to ensure dentures were in place.
- Nurses, PCTs, PACU staff, and coroner witnesses testified about denture handling: upper dentures were removed for surgery and documented as returned; lower partial plate had no record of removal and was not found with the body at autopsy.
- Condell presented two experts (a physician and a nurse) who opined both upper and lower dentures were in place when DeLuca ate; plaintiff’s experts disagreed and attributed death to failures in monitoring/assistance.
- Nurse manager Kathleen Likosar (retired before trial) gave discovery and an evidence deposition; Condell’s counsel spoke with her ex parte before that deposition and asserted privilege as to pre‑deposition communications and some testimony.
- At trial Caldwell sought to exclude the defense experts’ denture opinions, to bar Likosar’s evidence deposition, to strike privileged instructions, to strike for Petrillo violations, and to obtain a missing‑witness (IPI 5.01) instruction; the jury found for Condell. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of defense expert opinions that both dentures were in place | Experts’ opinions are speculative, factual (not expert) determinations, unsupported by direct evidence (no lower dentures observed) | Experts were qualified and based opinions on records, depositions, and clinical experience; proper foundation laid | Court: admissible; no abuse of discretion — opinions based on reliable bases and jury may weigh credibility |
| Admission of Likosar’s evidence deposition / notice under Rule 206 | Evidence depo lacked formal written notice and was videotaped without proper notice; prejudice from witness not live | Counsel gave written e‑mail confirming date; videotape was withdrawn; plaintiff’s counsel appeared and cross‑examined | Court: no Rule 206 violation; deposition admissible; no prejudice shown |
| Attorney‑client privilege for communications between Likosar and hospital counsel | Likosar was retired and not in control group; privilege inapplicable to bedside nurses and to post‑retirement statements | Likosar was an agent and insured of Condell; insurer/insured and corporate‑agent privilege protect communications made for defense | Court: privilege applies via insurer/insured and agency; sustaining privilege was proper |
| Petrillo/ex parte communications with treating caregiver (Likosar) | Ex parte meeting with Likosar violated Petrillo ban on defense counsel speaking to plaintiff’s caregivers ex parte | Exceptions allow hospital counsel to interview its own caregivers when hospital may be vicariously liable (Morgan/Burger) | Court: no Petrillo violation; exception applies because plaintiff alleged hospital liability for its caregivers’ conduct |
| Request for IPI Civil No. 5.01 (missing witness) | Unknown PCT who handled postmortem care (and who might have removed lower plate) was under defendant’s control and not produced | Testimony supported inference that identified staff (e.g., Riek) likely performed postmortem care; no specific missing witness established | Court: refused instruction; no abuse of discretion because plaintiff failed to show a distinct missing witness under control |
Key Cases Cited
- Snelson v. Kamm, 204 Ill. 2d 1 (expert testimony admissibility standard)
- Fronabarger v. Burns, 385 Ill. App. 3d 560 (expert opinion foundation and reliability)
- Consolidation Coal Co. v. Bucyrus‑Erie Co., 89 Ill. 2d 103 (control‑group test for corporate attorney‑client privilege)
- Morgan v. County of Cook, 252 Ill. App. 3d 947 (hospital exception to Petrillo when plaintiff alleges vicarious liability)
- Burger v. Lutheran General Hospital, 198 Ill. 2d 21 (Illinois Supreme Court adopting hospital/caregiver exception to Petrillo)