delivered the opinion of the court:
NATURE OF THE CASE
Plaintiff, Ann Hulmán, sought to recover damages for bodily injury sustained as a result of the alleged negligence of a hospital employee. Following a jury trial in the circuit court of Cook County, a verdict was returned in favor of defendant, Evanston Hospital. Plaintiff brings this appeal from the judgment entered upon that verdict.
FACTS
On March 26, 1984, plaintiff, Ann Hulmán, was brought to Glen-brook Hospital by paramedics. There, she was diagnosed as having suffered upper gastrointestinal bleeding leading to a drop in blood pressure and a stroke on the right side of her brain. Plaintiff also had a fractured hip as a result of a fall at the time of the stroke. While at Glenbrook Hospital, her condition improved and her treating physician, Dr. Justina Tanhehco, determined plaintiff was a candidate for an inpatient rehabilitation program in defendant, Evanston Hospital. Plaintiff was transferred to Evanston Hospital on April 17, 1984, where her condition continued to improve.
On the morning of May 4, a nurse assisted plaintiff from her hospital bed to the toilet. Plaintiff requested privacy. The nurse left the room while plaintiff was sitting on the toilet. Plaintiff testified that she called for a nurse, but there was no response, so after sitting there for what "seemed like hours” she attempted to lift herself from the toilet. As she did so, she fell, fracturing the femur bone of her left leg. The leg was casted later that day. In the weeks that followed, plaintiff suffered a series of seizures, a heart attack, and gangrene. Eventually, both legs were amputated.
On June 7, 1985, plaintiff filed suit in the circuit court of Cook County for damages against defendant Evanston Hospital. The amended complaint alleges that the nurse, acting within the scope of her employment for defendant, was negligent in abandoning plaintiff after assisting her onto the toilet and that this negligence was a direct and proximate cause of plaintiff’s fall and injuries.
Prior to trial, defendant brought a motion in limine to exclude testimony regarding defendant’s alleged lack of sufficient effort to identify and locate the nurse who left plaintiff unattended. The trial judge granted defendant’s motion. He ruled, however, that plaintiff’s counsel could comment that defendant had not disclosed the attending nurse’s
At trial, Dr. Justina Tanhehco, M.D., testified for plaintiff. Dr. Tanhehco, board certified in physical medicine and rehabilitation, was plaintiff’s attending physician while she was in Evanston Hospital after her stroke. She stated that because of the hip fracture sustained during the stroke, she had not authorized plaintiff to stand alone. She also said that some patients who have had a stroke damaging the right side of the brain are somewhat impulsive and may have perceptual difficulties. Dr. Tanhehco had devised a rehabilitation plan for plaintiff which initially set a goal- of moderate assistance in transferring from a bed to a chair, but was revised as plaintiff improved, so that the new goal was to achieve transfers (movement between bed and chair or wheelchair and between wheelchair and toilet) with minimal (10% to 25%) assistance. Dr. Tanhehco stated that, as of May 3, 1984, the plan had been to discharge plaintiff from the hospital in approximately one week.
According to Dr. Tanhehco, before moving a stroke patient from her bed to the toilet, a nurse is required to do an on-the-spot assessment as to whether such a move (a transfer) should be made. Such an assessment would include consideration of how the patient had previously transferred with that nurse and with other nurses and a judgment as to the patient’s ability to stand, whether she was leaning when sitting, and what her mental orientation was at that particular time. Dr. Tanhehco testified that plaintiff had first used the toilet on April 19, 1984, and had improved at that skill thereafter.
Dr. Tanhehco stated that when she saw plaintiff at 8 a.m. on May 4, 1984, her orientation was good, but that a stroke patient’s orientation can change. She testified that, on that same morning, she happened to be at the nurses’ station near plaintiff’s room at the time of the fall shortly before 10 a.m. She went into the room after hearing a noise and found plaintiff on the floor and in pain. She examined plaintiff, noticed increased tenderness in the left hip area, and ordered X rays, which showed a new fracture of the left femur. She stated that she did not know who had left plaintiff alone, nor did she know for how long plaintiff had been left there alone.
On cross-examination, Dr. Tanhehco said that when she saw plaintiff immediately after the fall at approximately 10 a.m., plaintiff’s orientation appeared to be the same as it had been at 8 a.m. She saw no reason to believe that plaintiff’s orientation would have changed in that two-hour interval. Dr. Tanhehco further stated that although plaintiff claimed to have pushed the call button, she had not noticed any activated call light at the nurses’ station.
Over plaintiff’s objection, Dr. Tanhehco testified on cross-examination that to a reasonable degree of medical certainty based on her observations two hours before the fall and immediately after the fall, it was "a matter of good nursing judgment” to leave plaintiff alone on the toilet in that condition.
On redirect examination, Dr. Tanhehco was again asked if it was good nursing practice to leave the patient alone on the toilet. She replied, "That’s general practice for a short time, yes.” She admitted she did not know how long plaintiff had been left alone. Plaintiff’s counsel then asked, "Because you don’t know that, it is a fact isn’t it that it may well not have been good nursing practice in this case on that day to have situated and tended to Mrs. Hulmán as was done; isn’t that true?” Dr. Tanhehco replied "Yes.”
Plaintiffs two daughters, Cecelia Currie and Jennifer Manz, also testified for plaintiff. Prior to Ms. Currie’s testimony, defendant moved to bar admission of a pamphlet entitled "Stroke: Why Do They Behave That Way?” and to bar testimony as to its content. The pamphlet, distributed by defendant to plaintiffs daughters and to families of other stroke victims, dealt with general characteristics of stroke victims. Plaintiff sought to introduce the pamphlet to show the hospital’s knowledge that patients like plaintiff tend to act impulsively and, therefore, need to be closely watched. The trial judge held the pamphlet to be inadmissible, finding that, because it discussed some characteristics not applicable to the plaintiff, it was not relevant
On direct examination, Ms. Currie testified that hospital personnel had instructed her about home care for her mother. They told her never to leave her mother in an unstable position because she would overestimate her abilities and have trouble with spatial relationships. Hospital nurses had told her a family member should always be present to help with transfers to the bathroom when plaintiff came home. Ms. Currie also testified that the hospital provided her and her sister with a pamphlet and showed a film on characteristics of stroke victims, both indicating that right-sided stroke victims can overestimate abilities and should not be left alone in an unstable position.
On cross-examination, Ms. Currie stated that a hospital social worker had also given the pamphlet and shown the film to families of other stroke victims in the hospital. She testified that, prior to the fall, plaintiff had returned home on a short pass to attend a family party. At that time, hospital personnel had instructed Ms. Currie to lift plaintiff during transfers rather than to attempt the type of transfer used at the hospital, which involved plaintiff pivoting on her unimpaired leg.
Jennifer Manz, another daughter of plaintiff, testified that nurses from the rehabilitation department had taught her how to transfer her mother and that during such instruction her mother was never left alone in a sitting position. She testified that the nurses instructed her never to leave her mother in a chair, an admonition which she said was reiterated in the pamphlet and film shown to her and her sister and families of other stroke victims. Ms. Manz stated that on May 4, when she visited her mother at the hospital, her mother was "in her bed twisted up like a pretzel.” She went to the nurse’s station to ask what had happened. She testified, "They said that she fell and I said could I talk to her nurse, I want to know what happened. They said I don’t know where she is.”
Plaintiff also called Eutilda Kerr, R.N., who, at the time of plaintiff’s fall, was a nursing assistant at Evanston Hospital. She stated that, although she was in another patient’s room when plaintiff fell, she completed the accident report. She testified that she had been taught to assess a stroke patient’s capabilities at the time a patient was to be moved, even if a doctor had seen the patient a couple of hours earlier, as the patient’s condition could have changed in the interim. She also stated she had been taught to keep watch while a patient was on the toilet.
Plaintiff’s expert witness was Carol Berding, R.N., who served as director of nursing for medical surgical units at St. Francis Hospital in Evanston. She testified that right-sided stroke victims experience weakness of the left side of their bodies, perceptual difficulties, and overestimation of their abilities. She testified that because of the stroke and the hip fracture, plaintiff was at high risk of falling. She further stated that a stroke patient should never be left alone on the toilet and that the nursing standard of care for assisting a stroke patient to the bathroom is no different in a rehabilitation unit than elsewhere in a hospital. She testified that, to a reasonable degree of medical certainty, the standard of care was violated by leaving plaintiff unattended on the toilet. She found the existence of a call button to be irrelevant because plaintiff could mistakenly think she had called the nurse.
On cross-examination, Ms. Berding admitted she had never been part of a rehabilitation team and was not familiar with any publications on rehabilitation nursing. Although the hospital records did not note that plaintiff was at a high risk for a fall, Ms. Berding stated that a right-sided stroke victim would always be at such high risk.
Plaintiff testified via a videotaped evidence deposition that, prior to her fall, she had learned how to transfer herself to a wheelchair, but she was not supposed to do so. On the morning of the fall, a nurse helped her to the toilet. At plaintiff’s request, the nurse left her alone to permit her some privacy,
On cross-examination, plaintiff testified that up to the day of her fall she would use the call button to call a nurse whenever she wanted to use the toilet. A nurse would take her to the bathroom, help her onto the toilet and leave her there so she could have time to herself.
Defendant called Rhonda Greenspan, a certified rehabilitation registered nurse, as its expert. She testified that, while orthopedic nursing focuses on satisfying direct medical needs of a patient, any acute care medical problems are generally under control by the time a patient comes to a rehabilitation facility. Therefore, in rehabilitation, the nursing focus is on teaching patients to care for themselves and to attain their optimal level of functioning. Over plaintiff’s objection, Ms. Greenspan was allowed to testify to the standard of care governing nurses in a rehabilitation unit. She stated that the transfer techniques used in a rehabilitation unit by nurses and therapists, unlike those in orthopedic settings, build on levels of independence and that the promotion of privacy during use of the toilet is an important goal.
Ms. Greenspan testified that one of the standards of care governing nurses in a rehabilitation unit is:
"[T]he nurse does a thorough assessment before implementing any intervention, and then her interventions are based on team input from the interdisciplinary team which is the physical therapist, the occupational therapist, the speech therapist and so on. Once they do an intervention, they do an assessment on that and then they reach a goal. *** [0]nce they reach one phase, it could be a very small phase and a very small goal, they build on the next ones. For example, if she mastered the bedpan *** she could move to the commode. That would be the next phase. If she sat on the commode, exhibited safety aware [sic], good judgment and was able to sit on the commode, then that’s the next phase and then it would build on to the next step.”
Ms. Greenspan, having testified that she read plaintiff’s chart and the testimony of Ms. Berding and Dr. Tanhehco, was allowed to opine, over plaintiff’s objection, that leaving plaintiff alone on the toilet on May 4, 1984, was not a deviation from the standard of care. She said that plaintiff had used the toilet several times before and, having apparently mastered that skill, it was "time to move to the next progression up.” She also testified that, according to plaintiff’s records, she was not at high risk for falling because she had mastered transfers, she had shown no cognitive behavior to indicate she would not sit still, and there was no indication that she had problems with overestimation of abilities or spatial perception. Ms. Greenspan further opined that there was no outside time limit for leaving plaintiff alone, as there was a call button which plaintiff knew how to operate.
On cross-examination, Ms. Greenspan admitted that during an earlier deposition she had stated that leaving a stroke victim in such a position for more than two or three minutes could be a deviation from the standard of care. She agreed with Dr. Tanhehco’s statement that a stroke patient who is well oriented and presenting properly may not be so two hours later, but, in reaching her opinion that there was no deviation from the standard of care, she relied on the doctor’s testimony as to plaintiff’s orientation immediately after the fall. Ms. Greenspan stated that it would have been permissible to leave plaintiff, even for as long as an hour and a half, because there was a call button.
On re-cross-examination, Ms. Greenspan indicated that she agreed with Dr. Tanhehco’s testimony that, because it was not known how long plaintiff was left alone, the nurse’s actions may not have been good nursing practice. However, at the same time, she also agreed with Dr. Tanhehco’s testimony that, based on plaintiff’s orientation at 8 a.m. on May 4, 1984, and immediately after the fall approximately two hours later, to a reasonable degree of medical certainty it was a matter of good nursing judgment to leave plaintiff unattended on the toilet.
At the conclusion of the trial, over defendant’s objection, the trial court included in its instructions to the jury Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1989), which provides:
"If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
4. No reasonable excuse for the failure has been shown.” (Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1989) (hereinafter IPI Civil 3d No. 5.01).)
The jury returned a verdict in favor of defendant.
On appeal, plaintiff seeks a new trial, contending that the trial court erred (1) by admitting evidence of a standard of care for rehabilitation nursing; (2) by allowing Ms. Greenspan and Dr. Tanhehco to testify there was no deviation from the standard of care; (3) by refusing to allow plaintiff to introduce evidence regarding defendant’s failure to disclose the identity of the nurse; and (4) by excluding from evidence the pamphlet given to plaintiff’s daughters. In addition, plaintiff contends that the jury’s verdict was against the manifest weight of the evidence.
OPINION
We first consider whether the trial court erred in allowing defendant’s expert witness, Ms. Greenspan, to testify regarding the standard of care governing nurses in a rehabilitation unit. This standard was in conflict with the general nursing standard of care testified to by plaintiff’s expert, Carol Berding, RN. Plaintiff claims that Ms. Greenspan’s testimony was inadmissible because it lacked the necessary factual foundation, i.e., there was no evidence in the record to indicate that the person who left plaintiff unattended (the missing nurse) was, in fact, a rehabilitation nurse or, for that matter, that she was a nurse of any kind. Plaintiff further contends that allowing Ms. Greenspan to testify to a standard of care applicable only to a rehabilitation nurse permitted defendant to benefit from its failure to disclose the missing nurse’s identity and to simply assume that she was a certified rehabilitation nurse.
The decision to allow or exclude the testimony of an expert witness is within the sound discretion of the trial court and will not be disturbed on review absent an abuse of that discretion. Collins v. Roseland Community Hospital (1991),
Plaintiff correctly
Although the testimony of Ms. Greenspan conflicted with Ms. Berding’s as to the applicable standard of care, Ms. Greenspan’s testimony had a sufficient factual basis, since it was established that plaintiff was in a rehabilitation unit for the purpose of rehabilitation after her stroke. See Collins,
Plaintiff next contends that the testimony of Ms. Greenspan that there was no deviation from the hospital’s standard of care was inadmissible because the opinion was predicated on two assumptions of facts not in evidence: (1) that the missing nurse actually made an assessment of plaintiffs condition before leaving plaintiff alone, and (2) that plaintiff was left for only a short time. Similarly, plaintiff makes the same contention with regard to Dr. Tanhehco’s testimony, elicited by defendant on cross-examination, that the nurse’s conduct in leaving plaintiff alone was a matter of good nursing judgment.
We disagree with plaintiff’s contention concerning the first alleged assumption. It is correct that Ms. Greenspan testified on direct examination that one of the rehabilitation standards of care was for a nurse to assess a patient’s capabilities before an intervention. However, she then testified on redirect examination that it was not necessary to know whether a nurse actually made an assessment at the time this patient was left alone in the bathroom. Thus, Ms. Greenspan’s opinion that there was no deviation from the standard of care was premised not on the assumption that an on-the-spot assessment was performed, but on the fact that, as Dr. Tanhehco had testified, plaintiff had used the toilet previously and had mastered that skill so that it was proper to leave her. She noted that plaintiff would not have been a candidate for use of the toilet if she had been unable to sit erect and balanced, understand directions, and use the call button. Thus, the fact that there was no testimony that the missing nurse made an assessment would not in and of itself vitiate Ms. Greenspan’s opinion testimony.
As to plaintiffs contention that the opinions of Ms. Greenspan and Dr. Tanhehco were based on an assumption that plaintiff was left unattended for only a short time, we note initially that this issue has been waived. At trial plaintiff specifically objected to the opinion of Ms. Greenspan, as well as that of Dr. Tanhehco during her cross-examination, based on the absence of evidence of an on-the-spot assessment and on the absence of evidence as to plaintiffs condition at the time of the fall. No objection was made that either opinion was premised on a time period not in evidence.
"It is clear that a specific objection to evidence is a waiver of all points not specified. [Citation.] The purpose of this rule is to inform the trial court of the particular problem and to enable the party offering the testimony an opportunity to confront the objection.” (Svenson v. Miller Builders, Inc. (1979),
Furthermore, even if this issue would not have been waived, we conclude that there would have been no error on this basis. As to Ms. Greenspan’s opinion, we disagree with plaintiffs contention that her opinion was based on the unsupported assumption that plaintiff had only been left alone for a short time. On direct examination, Ms. Greenspan testified that there was no outside limit for the period of time plaintiff could have been left alone on the toilet. On cross-examination, she reiterated that, because plaintiff knew how to operate the call button, there was no outside time limit and it would have been permissible to leave plaintiff even as long as V-h hours. Although her testimony may have been diluted on re-cross-examination by her acquiescence to Dr. Tanhehco’s statement that because the length of time was unknown the nurse may not have exercised good nursing practice, such dilution was not sufficient to require that her entire testimony on direct examination be stricken. This is particularly true in light of the fact that Ms. Greenspan’s acquiescence to Dr. Tanhehco’s statement did not purport to be a retraction of her opinion that
As far as Dr. Tanhehco’s testimony is concerned, she was plaintiff’s witness. As previously noted, she was permitted to testify over plaintiff’s objection on cross-examination that there was no deviation from the applicable standard of care. There was no reference in that testimony to any time factor, nor did plaintiff’s objection at that time raise any question as to the length of time for which plaintiff may have been left unattended. The significance of the time factor was first elicited in Dr. Tanhehco’s rehabilitation testimony on redirect examination. Plaintiff did not then renew her objection to Dr. Tanhehco’s opinion on cross-examination, but appeared instead to be satisfied with the posture of the rehabilitation testimony. (See Gillespie v. Chrysler Motors Corp. (1990),
Plaintiff next contends that the trial court erred in granting defendant’s motion in limine prohibiting plaintiff from introducing evidence that defendant could have discovered, through reasonable diligence, the identity of the missing nurse. Plaintiff contends that the trial court’s ruling precluded her from showing that the missing witness was within defendant’s power to produce and thus prevented plaintiff from developing and emphasizing the adverse inference permitted under IPI Civil 3d No. 5.01.
However, we need not determine whether the trial court erred in precluding plaintiff from presenting such evidence because, as defendant points out, plaintiff has waived the issue on review by failing to make an offer of proof. An offer of proof is generally required to preserve for review a question as to whether evidence was properly excluded. (Goad v. Evans (1989),
While an offer of proof may not be necessary where the record clearly shows that the trial court already has before it all of the evidence necessary to make an assessment regarding admissibility and possible prejudice from exclusion (Reuter v. Korb (1993),
Plaintiff’s last contention of error by the trial court concerns the trial court’s exclusion of a pamphlet entitled, "Stroke: Why Do They Behave That Way?” The record reflects that the pamphlet provides an overview of behavioral characteristics which might be encountered when a stroke victim is released to the care of family members. It provides generalized characteristics and modes of care for left-sided as well as right-sided stroke victims. The record shows that copies of this pamphlet were given to plaintiff’s daughters by a hospital social worker. Testimony was also presented that the pamphlet is customarily distributed by hospital personnel to all families of stroke patients.
Although plaintiff specifically disclaimed that she was offering the pamphlet to establish the hospital’s standard of care, she urged that the pamphlet’s content, coupled with the fact that the pamphlet was given to plaintiff’s family, was relevant to show the hospital’s knowledge that certain behavioral characteristics of stroke victims included in the pamphlet applied to plaintiff. The trial court denied its admission on the grounds that it was not relevant, stating that it contained information not applicable to plaintiff which could confuse the jury. The trial court did, however, permit plaintiff’s family to testify to information regarding plaintiff’s behavioral characteristics provided to them by hospital personnel and to freely refer to the contents of the pamphlet as well.
A trial court’s determination regarding the admissibility of evidence will not be disturbed on appeal absent an abuse of discretion. (Gill v. Foster (1993),
Furthermore, plaintiff’s daughters were allowed to testify to what information the hospital gave them about their mother’s care and condition, and were freely permitted to refer to the pamphlet in that regard. Similarly, the testimony of Dr. Tanhehco and the experts for both parties included statements as to the characteristics of right-sided stroke victims generally, and plaintiff specifically. Consequently, the admission of the pamphlet itself would have been largely cumulative, and its exclusion, even if erroneous, could not be deemed prejudicial. (Thomas J. Douglas & Co. v. Industrial Comm’n (1966),
Contrary to plaintiff’s contention, we do not see Ms. Greenspan’s testimony to be inherently incredible. "Under Illinois law, a witness’ testimony is inherently improbable if it is 'contradictory of the laws of nature or universal human experience, so as to be incredible and beyond the limits of human belief, or if facts stated by the witness demonstrate the falsity of the testimony.’ ” (Bucktown Partners v. Johnson (1983),
"A verdict is said to be against the manifest weight of the evidence where it is palpably erroneous and wholly unwarranted [citation], is clearly the result of passion or prejudice [citation], or appears to be arbitrary, unreasonable, and not based upon the evidence.” (Ford v. City of Chicago (1985),
"[W]here there is a conflict in the testimony, a reviewing court may not substitute its judgment for that of the jury in passing on the weight of the evidence and on the credibility of the witnesses. [Citation.] A reviewing court may not set aside a verdict merely because the jury could have determined the credibility of the witnesses differently or drawn different inferences of fact.” Brooke Inns, Inc.,249 Ill. App. 3d at 1079 .
Accord Collins,
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
Affirmed.
MURRAY, P.J., and McNULTY, J„ concur.
