*1 Edison, and all tract or contracts” between Sargent books, or communications memoranda plans, “per- reports, to Unit and the buffer wall barrier between taining rule Unit Unit 8.” Under best-evidence in evi- these documents admissible original any I.L.P., Evidence, And dence. sec. (18 plaintiff points classic, out, is a for trial production recog- subpoena method for of documents nized compelling production into desired to introduced evidence. stated, the
For the reasons judgment Appellate defendants, as to Court is reversed both cause circuit court of new remanded Cook County ^r*a^' Reversed remanded.
(No. 38790. Darling II, vs. Charles- Appellee, Dorrence Kenneth Community Hospital, Appellant. Memorial ton 18, Opinion Sept. Rehearing denied Nov. filed 1965. *2 J., specially concurring. Underwood, Horsley Craig and P. Ewart, E. & Jack John Shuey Mattoon, O. Craig, (Wayne H. Fred Kelly, for counsel,) appellant. Belleville, S. Meyer, Stanford Alan John Urbana, for
Appleman, appellee. Mr. delivered of the opinion Schaefer Justice court:
This action was on behalf of Dorrence brought Darling II, minor, his father and next (hereafter by plaintiff) friend, to recover medical damages allegedly negligent treatment which necessitated the amputation of his below the The action commenced knee. right leg the Charleston Memorial against Community Hospital Alexander, Dr. R. trial was dis the action prior John Alexander, missed as to to a Dr. covenant pursuant sue. The returned verdict against sum of This reduced $150,000. $40,000, amount was amount of the settlement with the doctor. The judgment $110,000 was affirmed favor sum of District, for the Court Fourth appeal Appellate 2d a certificate of Ill. importance. App. granted years On November who was 18 5, i960, plaintiff, old, in a football game. broke his while college leg playing *3 hos- at the He taken to the room defendant emergency was Alexander, call on who was where Dr. emergency pital Alexander, hos- the of treated Dr. with assistance him. day, the in a and leg traction placed personnel, applied pital Not cradle to the cast. dry cast. A heat was applied plaster inwas great after of the cast plaintiff the long application cast, toes, from became his which the and protruded pain cold and in became eventually and color. They swollen dark 6, Dr. Alexander On of November evening the insensitive. toes, afternoon and on the cast around the the “notched” three the inches next he cut cast approximately the day of of the he the sides November 8 split from the foot. On up saw; of the cast in the course cutting awith Stryker cast other sides. Blood and cut on both was leg the plaintiff’s others, and and there the nurses were observed seepage room, said was the one witness which a stench in was re- II. The plaintiff since War had smelled World he worst he in November when mained Charleston until Hospital in and Barnes St. Louis placed was transferred to Hospital head of orthopedic under the care Dr. Fred Reynolds, of of Medicine at School surgery Washington University that the fractured leg Barnes Dr. found Reynolds Hospital. in his tissue which contained considerable amount of dead the circulation resulted from interference with opinion or hemorrhaging blood the limb caused by swelling cast. the constriction of the Dr. leg Reynolds against futile save the several in a to performed operations attempt below it had to be inches eight ultimately amputated leg thé knee. forth in the
The evidence before the is set length not in de- Court and need be stated opinion Appellate tail here. The that it contends established was Dr. to do defendant Alexander negligent permitting case, work the kind this and not orthopedic required him his bring to review requiring procedures operative date; staff, them medical failing, up through case, exercise over the since adequate supervision especially Alexander Dr. had been duty by placed emergency consultation, and in hospital, requiring particularly after Plaintiff had contends also complications developed. did, that in a case this one developed of the nurses to watch the constantly toes protruding movement, color, changes temperature minutes, ten to check circulation whereas every twenty these done a few times showed that were things proof that it Plaintiff day. argues followed, were to see that these procedures staff were derelict in failing develop- either nurses report administrator, dere- case to the he was ments staff, to the attention of medical lict in them bringing *4 take Defend- staff action. or the was negligent failing the a and accredited hospital, ant is licensed stand- the accreditation licensing contends regulations, ards, and its own bylaws define the hospital’s duty, an infraction of them in- the imposes liability resulting jury.
The defendant’s is stated in the ex- position following from its brief: “It a cerpts fundamental rule of law that an licensed, individual only educated and and not properly * * * a may medicine. Accord- corporation, practice a under the ingly, law to forbid or hospital powerless command act any or by physician surgeon practice ** * of his A is not insurer of profession. hospital the the owes the patient’s recovery, patient exercise such reasonable care as his known condition re- care, and that skill and used degree diligence quires * ** in that hospitals community. Where generally care in accordance evidence shows hospital with standard similar practice obtaining hospitals, Plaintiff no evidence to can- contrary, produces is true even if disbelieve not conclude they opposite * * * A liable for is not witnesses. hospital hospital the nurse was but the torts of its nurse committed while unless such the orders of the executing patient’s physician, reasonable as to lead any order is so obviously negligent that substantial would result injury to anticipate person * * * The the execution of such order. from patient to actual medi- of a with extent of respect nature such as is furnished by cal care of professional medical reasonable care selecting is to use physician is ac- selection of the staff care such doctors. When so se- that a indicates physician and nothing complished, have should that such incompetence lected is incompetent from the discovered, more cannot expected been administration.” centers upon parties,
The basic posed dispute, That dis- the defendant hospital. that rested the duty to evidence concerning to be the effect given involves pute also the care and diligence, standard community
331 the by effect to be adopted given hospital regulations the Public Health under Hospital State Department III½, pars. Act Rev. Stat. 1963, chap. Licensing (Ill. 142- Accreditation of the Standards for Hospital 157.), Association, to the bylaws American Hospital defendant. seen, in this court
As has been the defendant argues offered its is to be determined the care customarily in its community. Strictly hospitals generally speaking, “* * ,* in is not one of duty, negligence question cases, same, is to conform to legal always conduct in the standard of reasonable light apparent do, do, the defendant must or must not is risk. What of the standard of conduct to satisfy question required Torts, at on ed. 331.) “By duty.” (Prosser great 3rd a custom either to of modern American authority weight take is admissible as bear- or to omit precaution generally circumstances, under the but what is conduct ing proper Torts, is not conclusive.” 2 The Law of James, Harper sec. Custom is relevant 17.3, determining 977-78.) feasible, it standard of care because illustrates what is of which the defendant suggests body knowledge aware, it warns of the of far- should be possibility if a standard is required. reaching consequences higher Colum. L. Rev. Custom and (Morris, Negligence, 42 Evidence, ed. secs. 459, 461.) 2 Wigmore, (1942); 3rd As Learned should never be conclusive. Judge But custom are, doubt, said, cases where courts seem “There no Hand the standard of calling to make the general practice to the have indeed some currency we given proper diligence; * * * in most cases reasonable Indeed notion ourselves. it is never fact common prudence; strictly prudence measure; have may unduly a whole calling lagged its It devices. never set may new and available adoption tests, be its Courts must usages. however persuasive own im- there are so precautions the end what say required; that even their universal not excuse perative will disregard their omission.” The Fed. T. J. cir. Hooper, (2d 1932,) 2d 737, 740. standards,
In .the case the and by- present regulations, evidence, laws which the introduced into performed much the same function as did evidence of custom. This evidence aided the what was feasible jury deciding what the defendant knew or should It have known. did determine the standard of care and the conclusively was not instructed that it did. *6 that the does not undertake
conception hospital treat the does not undertake to act its doc- through patient, nurses, ors and but undertakes instead simply procure Í“The their them to act own no reflects longer responsibility,
the fact.
as their manner of
Present-day hospitals,
opera-
demonstrates,
far
than
tion
do
more
furnish facili-
plainly
ties for treatment.
on a
basis
They
salary
regularly employ
internes,
nurses and
as well as
staff of
large
physicians,
workers,
manual
administrative and
and they charge
treatment,
care
for such
for medical
collecting
patients
services,
if
action.
necessary, by
Certainly,
person
legal
facilities’
avails himself
‘hospital
expects
who
him,
to cure
not that its nurses or
will
attempt
act on their own
(Fuld
other
will
responsibility.”
employes
N.E.2d
We now to the instruction object did The defendant to this case. issues, Illinois Pattern Instruc- followed Jury issues from did it move withdraw any tion 20.01. Nor Act, Practice Under section the Civil jury. entire verdict is not to be set aside because one asserted was defective or recovery inadequately proven, sufficient, if one unless motion or more of the grounds Rev. Stat. withdraw the issue was made. question (Ill. need not analyze Therefore we 1963, chap, 68(4).) 110,par. all of the issues to the Two of them were submitted jury. to have a the defendant had Failed negligently: “5. of trained nurses for sufficient number bedside care of all at all times patients capable recognizing progressive condition of the and of gangrenous plaintiff’s right leg, the same to the attention of the admini bringing stration and to the medical staff so that consulta adequate rectified; tion could been have secured and such conditions * * * Failed to consultation with examina require tion members of the staff skilled such hospital surgical treatment; or to review the treatment rendered to the plain tiff and to consultants to be called in as needed.” require
We believe that the verdict is on either jury supportable of these On the basis evidence before it the grounds. could have concluded that the reasonably nurses did not test for circulation in the as leg necessary, frequently that skilled nurses wofild have the con- promptly recognized ditions that signalled of circulation dangerous impairment *7 in the and would have known the condi- plaintiff’s leg, tion become in a matter would irreversible of hours. At that attending it inform became the nurses’ to the point act, if he to to physician, and failed advise the hospital authorities so that action be As to might taken. appropriate consultation, there is no failed to dispute consultation; review Dr. Alexander’s work or a the require issue is whether its failure to do so was On negligence. the it the evidence before could have found reasonably that it was. in this court its contention
Defendant renews that it was an amendment to unfairly surprised by plaintiff’s complaint made at the close trial of his case. Prior to the complaint alleged: the That the defendant then owed to corporation
“4. said a use that of skill in the care duty to plaintiff degree like of such be institutions of would exercised patient by that in of kind character in that violation county; and to the duties which said defendant owed plaintiff, defendant of one or more the follow- guilty said was and acts or which directly careless omissions ing negligent loss to caused injury plaintiff: proximately
[*] [*] [*] to That the defendant failed conform “O. observe one or more standards following hos- of and adhered accredited customarily by required n ** at that area involved time pitals amend At the close his case obtained leave to plaintiff “as his would exercised by by” complaint changing of” introductory portion paragraph “required and” in striking “customarily required subpara- on the The defendant a continuance O. graph requested it because these amend- that was unfairly surprised a shift in in that theory, fundamental ments effected that the accreditation rules now was contending plaintiff trial refused alone The duty. judge defined hospital’s The court found continuance. requested The of” and we there no agree. “required surprise, a conclusion. legal clause in the introductory paragraph O of” “customarily phrase subparagraph If the required conclusion; a it was also to express legal was meant statement, the accredited factual “adhered if awas less difficult to no prove. area” phrase hospitals examination theory, But if there was change even was not that defendant surprised. indicates of the record at the memorandum time had filed trial, conference, months before the than five more pretrial *8 335 which stated the defendant contends new. theory which the The the defendant major second contention advanced by in this court that it error to permit prejudicial of cross-examination witnesses concerning expert fields, of in their views authorities recognized upon their did not base experts opin purport ions of In of this views these authorities. upon support contention he relies v. upon Chicago City Ry., Ullrich 265 Shrock, Ill and v. Ill. 338, 110 City Bloomington of Those cases hold an be witness can inter expert about those texts rogated which he bases his expressly The court held that the opinion. cross-examina tion this case met that do test. not consider de We termination to ascertain whether detail on cross- every examination of each fits within the rule witness an expert cases, nounced those for we are satisfied that the rule is reasons, sound and no supported should by longer adhered to.
That rule been has criticized schol- frequently by legal Evidence, (6 ars. ed. secs. Mc- Wigmore, 1690-92; 3d Cormick, Evidence, 620, sec. n. It 296, 3.) rejected p. Rules of Uniform Evidence (see Rule and 63(31) and in the of comment,) Model Code Evidence. Rule (See It has been comment.) rejected United by 529 Court, Pinkus, States v. Supreme (Reilly U.S. (1949) 338 L. ed. 269, other courts as 63,) by (60 well. A.L.R. 94 2d It is by considerations supported support rule, hearsay considera- those inapplicability tions scientific works has been demonstrated convincingly Evidence, ed. secs. Wigmore. Wigmore, 3rd 1691-92. unsatisfactory has been quality expert testimony comment, subject has judicial induced frequent action. v. Ill. (See Pryor, 538, v. Opp 545; Kemeny Skorch, 160, see 22 Ill. 2d also Court 170; App. Supreme 110, Rule 2, Ill. Rev. Stat. 1963, chap, 2; par. 17— 101.17— Evidence, Cleary, Handbook Illinois secs. 3.3, p. 11.10, An individual becomes pp. 190-91.) expert To studying body absorbing knowledge. prevent *9 cross-examination relevant upon body knowledge serves only to or ignorant protect unscrupulous expert witness. In a ef- our be more testimony will opinion expert fective tool in the if attainment cross-examination justice authorities, is ex- as to views of recognized permitted in treatises pressed written professional periodicals Evidence, The Rule Model Code of colleagues. (Cf. if takes ju- author’s is established the judge competence it, a dicial notice of or if it is established witness expert in the subject. that the judg
Another is contention defendant $100,000, $110,000 ment for the limit of be reduced to must insurance, is its non- because its insurance liability only this trust fund conten asset. court disposed failed tion on the allegations defendant’s not exist. The establish that other funds did plain nontrust im tiff, however, doctrine of charitable suggests University, Parks Northwestern announced in v. munity Ill. 555, v. Moyle, Ill. and modified Moore 218 v. this court Molitor did not survive the decision of District, 11. It is Ill.2d ap Kaneland Community Unit contention. of that broader that we propriate dispose im- of"charitable Moore v. the doctrine Moyle qualified funds of nontrust munity by recovery against permitting In an insurance policy. charitable specifically corporation, ex- immunity to the doctrine of other it adhered respects In Moli- University. in Parks v. Northwestern pressed be was sought of school districts tor case the immunity in order that it was justified theory required we of this contention In funds. protect disposing public day age, that in this not believe present do said: “We busi- one of the biggest constitutes education when public can school immunity justified country, nesses on the theory. protection-of-public-funds that it shows “In the first of the theory place, analysis claims is is on the idea that of damage based payment As diversion of educational funds to an improper purpose. out, in this argument writers have many fallacy pointed to be is that it assumes the very sought point i.e., that claims is not a proved, payment damage proper fund” theory the “No-fund” or “trust purpose. ‘Logically, without merit because it is of value after de termination of what is a school To expenditure. pre proper dicate of a trust fund is merely immunity upon theory circle, in a an the very since it assumes answer to argue issue, wit, an educational what is purpose? question doctrine to the extent with “no-fund” Many disagree of funds for result judgments ruling payment from accidents or schools is educational ing injuries Nor can it be that as a result of purpose. properly argued *10 the abandonment of the common-law rule the district would California, Tennessee, York, be New completely bankrupt. and other states not been Washington have compelled * * * shut down their If schools.’ tax funds can prop insurance, be erly on there spent pay liability premiums seems to be no reason cannot good why they spent pay in itself the absence of insurance.” Ill.2d at liability (18 It in out pointed dissenting opinion 22-23.) that Molitor case of the invalidated logic opinion at doctrine of charitable 18 Ill.2d immunity. 38. We the doctrine of charitable immunity agree can no stand in the Kaneland Molitor v. longer light District, In Unit Ill.2d addition to the Community case, reasons in advanced the Molitor a doctrine which limits the of charitable to the amount liability corporations insurance that see fit to them liability they carry permits to determine whether or not will be liable for their they torts and the amount of that if Whether liability, any. assets of a charitable are subject corporation particular in order to satisfy from execution judgment exemption
does not determine No such issue arises until lia- liability. be, however, has been It determined. that Moore bility may v. has been relied Moyle charitable upon by corporations and, so, whether insurance if the amount deciding carry therefore, case, of insurance to be As in the Molitor carried. case, as to the in the instant this except plaintiff aspect our decision will be effect from the given prospective only, date which the in this case final. becomes opinion
One of the course of examining plaintiff’s attorneys Dr. Alexander asked him what had to several happened In under his care. each case the had died patients patient and the of the seems to have been to only purpose question inferences from fact. One suggest misleading attack; the over and had died of a heart patients heart conditions or cancer. But ex- others had died of information was on redirect examina- planatory supplied tion, not consider the initial error and for that reason we do to warrant this evidence sufficiently admitting prejudicial reversal. here its contention
The defendant also renews instructions. The trial court erred in its rulings waived all to the instructions were objections argues ones were not set out because the objectionable length court indicated that brief. The the defendant’s the defend- but it also considered this argument, accepted No rule of court on their merits. supports ant’s objections and we the plaintiff argues, the technical rule think it unwarranted. in- to the plaintiff’s objects giving
The defendant ac- 6A, certain bylaws which stated structions 3A *11 out the basis that they singled on regulations, creditation instruction 7B, objects plaintiff’s It also evidence. certain interrogatories. answers to that it out singled not believe and do these instructions have examined We The evidence. to any emphasis given that prejudicial instruct to refuse to that it was error also defendant argues can medicine licensed only practice physicians establish community standards customary instruction of the give any hospital, it indicated of the supervise court staff The trial did of its members. competence matters. err these ruling in this of the other
Defendant has renewed court some it court. numerous the appellate contentions advanced in the ex and determined All them were discussed Ill. 2d of the court. haustive opinion (50 App. it is do not discuss necessary believe We de at court correctly disposed them That again length. clos fendant’s concerning improprieties during arguments Ill. Counsel 2d for both (50 334-36.) ing argument. App. and we cannot say improper argument parties indulged on one those on the other. out-weighed side inproprieties for the Fourth Court judgment Appellate District affirmed.
Judgment affirmed. concurring: Mr. specially Underwood, Justice I in the decision so far as relates to concur I this of charitable because believe immunity doctrine v. Kaneland Unit Molitor Community result compelled District, 18 Ill.2d.11.
(No. 39046. Cooperative Egyptian Appellant, Association, Electric al., vs. Illinois Appellees. et Commission Commerce Opinion September filed