Perez v. St. Alexius Medical Center
2020 IL App (1st) 181887
Ill. App. Ct.2020Background
- Marilyn Perez presented to St. Alexius ER on Aug. 11, 2012; CT that day reported a 7 × 6.3 cm ovarian teratoma, but the emergency-room ultrasound interpreted by radiologist Dr. Jeffrey Chung read "no adnexal mass" and "left ovary unremarkable."
- Marilyn’s treating OB (Dr. Michael) reviewed both reports, relied on Chung’s ultrasound report, continued fertility treatment, and later the teratoma ruptured; Marilyn died of metastatic cancer in 2014.
- Plaintiff sued multiple providers; at trial plaintiff won against Dr. Michael and his practice but the jury found for Chung and St. Alexius, expressly finding Chung was not an apparent agent of the hospital.
- At trial plaintiff sought (1) to impeach/challenge Chung with his Rule 213(f) discovery disclosure, (2) to cross-examine Chung with the American College of Radiology (ACR) practice guideline, and (3) to modify the IPI agency instruction to refer to "agent or employee." The court excluded some uses of the 213 disclosure, barred certain ACR cross-examination, and refused the requested instruction modifications.
- The appellate court vacated the verdicts and remanded for a new trial, concluding the trial court committed prejudicial error by (a) barring plaintiff from using Chung’s Rule 213(f) discovery disclosure in cross-examining Chung, (b) preventing cross-examination of Chung about the ACR guideline after plaintiff established the guideline’s authoritativeness, and (c) refusing to modify IPI Civil No. 105.10 to refer to an "agent or" employee in an apparent-agency instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/use of Chung’s Rule 213(f) disclosure (as admission/impeachment) | Perez: the 213(f)(3) disclosure stating Chung would have reviewed the CT and would have compared CT/US was an admission and could be used to impeach Chung directly. | Chung/St. Alexius: disclosure signed by counsel and concerns over attorney-client communications; not freely usable against the party-witness in cross. | Reversed: trial court abused discretion by barring use of the disclosure in cross-examining Chung; plaintiff prejudiced. |
| Cross-examination of Chung with the ACR practice guideline | Perez: ACR guideline is authoritative on comparing prior studies and supports plaintiff’s standard-of-care theory; Gore (plaintiff expert) established its competence so Chung could be impeached/asked about it. | Defendants: Chung was not an ACR member and unfamiliar with the guideline; plaintiff forfeited or failed to authenticate the guideline for impeachment. | Reversed: court abused discretion by barring cross-exam re the guideline after plaintiff’s expert established the guideline’s authoritativeness; exclusion prejudiced plaintiff. |
| Jury instruction for apparent agency (modifying IPI Civil No. 105.10 to add "agent or") | Perez: the pattern instruction then in use referred only to "employee," which misstated the law and misled the jury on apparent agency; consent form was ambiguous, so correct instruction vital. | Defendants: the unmodified IPI instruction in effect was applicable; no legal error in using the existing pattern instruction. | Reversed: instruction should have included "agent or"; failure to modify IPI 105.10 was reversible error given the consent-form ambiguity and the centrality of apparent-agency issues. |
| Refusal to give IPI Civil No. 50.10 (actual-agency definition) | Perez: jury needed definitions (agent vs. independent contractor) to decide agency issues. | St. Alexius: plaintiff pled only apparent agency, not actual agency; IPI 50.10 is for actual agency and was inapplicable. | Affirmed: trial court properly refused IPI 50.10 because plaintiff did not plead an actual-agency claim. |
| Application of two-issue (general verdict) rule | Defendants: even if some evidentiary rulings erred as to standard of care, the two-issue rule saves the verdict because the jury could have based defense on proximate cause. | Perez: the jury was instructed to decide negligence first; prejudicial errors as to negligence may have prevented reaching causation. | Held for Perez: appellate court declined to apply the two-issue rule because the identified errors likely affected the negligence phase and therefore could have altered the verdict. |
Key Cases Cited
- Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (Ill. 1993) (elements of hospital liability under apparent agency; holding-out and reliance explained)
- York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147 (Ill. 2006) (apparent-agency analysis in medical-malpractice context; effect of notice of independent status)
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (Ill. 2004) (trial-court discretion on admitting expert-related discovery materials)
- Schultz v. Northeast Ill. Reg’l Commuter R.R. Corp., 201 Ill. 2d 260 (Ill. 2002) (requirement to use IPI when applicable unless it misstates law)
- LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806 (Ill. App. Ct. 2008) (appellate review examines instructions in their entirety for accuracy and prejudice)
- Iaccino v. Anderson, 406 Ill. App. 3d 397 (Ill. App. Ct. 2010) (learned-treatise/impeachment principles; cross-examining with authoritative publications)