Morrisroe v. Pantano
65 N.E.3d 931
| Ill. App. Ct. | 2016Background
- Viola Morrisroe (decedent) had severe/ worsening COPD; CT in Feb 2009 showed a new right upper‑lobe mass; PET scan was inconclusive and another CT was recommended.
- A September 2009 CT was performed while Viola was hospitalized; Dr. Pantano reviewed the Feb and Sept scans, concluded the mass enlarged, and recommended bronchoscopy with biopsy; Viola consented (was not told of risk of death).
- On October 1, 2009, Dr. Pantano performed a bronchoscopy with biopsies; intraoperative bleeding occurred, was controlled, but Viola rebled hours later, developed respiratory failure and died; autopsy found hemorrhage and pneumothoraces but no tumor.
- Plaintiff (special administrator) sued for medical negligence (unnecessary bronchoscopy because mass had not grown) and lack of informed consent (failure to disclose risk of death).
- Plaintiff’s retained expert, Dr. Grodzin, opined the mass was stable (or smaller) after reviewing the CTs and said he measured the lesion; at trial he sought to add that changing screen contrast revealed the Sept CT showed inflated lung tissue rather than a mass — a basis not disclosed in his Rule 213 expert disclosures or deposition.
- The trial court barred Dr. Grodzin from testifying about the screen‑contrast basis as an undisclosed new basis; the jury found for defendants; plaintiff appealed arguing (1) improper exclusion of expert testimony and (2) erroneous sustaining of objections during plaintiff’s closing argument about what Viola would have done if told of the death risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in barring expert testimony that adjusting CT screen contrast showed the mass unchanged (new basis) | Grodzin’s screen‑contrast explanation simply showed how the scans appeared when he reviewed them and was encompassed by his disclosed opinion that the mass did not change | Testimony presented a new, undisclosed basis for the opinion (contrast adjustment) in violation of Supreme Court Rule 213 and unfair surprise | Court affirmed exclusion: contrast‑based opinion was a new basis not disclosed and should have been supplemented under Rule 213(i); exclusion was within trial court discretion |
| Whether trial court erred in sustaining objections to closing‑argument remarks describing what Viola would have done if told of a risk of death (personalizing the reasonable‑patient standard) | Counsel’s characterization merely clothed the objective reasonable‑patient standard with Viola’s attributes and was proper argument | Counsel improperly argued what this particular patient (Viola) would have done rather than the objective reasonable person in her position; such personalization was misleading | Court affirmed sustaining objections: counsel misstated the legal standard by emphasizing what Viola herself would have done rather than the objective reasonable‑patient inquiry; no abuse of discretion |
Key Cases Cited
- Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (Ill. App. Ct. 1999) (expert testimony that presents new reasons for an opinion must be disclosed under discovery rules)
- Kotvan v. Kirk, 321 Ill. App. 3d 733 (Ill. App. Ct. 2001) (barring undisclosed expert opinion bases is not an abuse of discretion)
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (Ill. 2004) (strict compliance required for Rule 213 expert disclosures)
- Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026 (Ill. App. Ct. 2003) (discovery disclosures prevent surprise and gamesmanship)
- Spaetzel v. Dillon, 393 Ill. App. 3d 806 (Ill. App. Ct. 2009) (distinguishing permissible elaboration that is a logical corollary from impermissible new bases for expert opinion)
- Steel v. Provena Hospitals, 2013 IL App (3d) 110374 (Ill. App. Ct. 2013) (trial court’s admission/exclusion of expert testimony reviewed for abuse of discretion)