*1 al., Plaintiffs-Appellants, EUGENE P. TOMASZEWSKI et MUKUND GODBOLE, Defendant-Appellee.
Third District No. 3 — 87—0712 22, 1988. Opinion September filed *2 STOUDER, P.J., dissenting. Weiler, Bevins, Burnett,
Bernard K. C. Donald and Constance J. all of Larson, Puckett, Barnett, Mickey, Ochsenschlager (John Wilson & R. Wienold, counsel), for appellants. Freeman, Waterman, Davenport, Iowa,
Carol Lane & appellee. for JUSTICE HEIPLE delivered the opinion of the court: The plaintiffs, Eugene Tómaszewski, and Shirley brought a suit *3 against defendant, the Dr. Godbole, Mukund for medical malpractice. The plaintiffs’ theories of at recovery trial were To- basically that Mr. maszewski not give did his informed the consent procedure per- formed or risks, its attendant and that the procedure performed, was unnecessary because the of standard care for Mr. Tómaszewski’s con- dition was medical management. Following trial, the jury rendered a verdict in favor of the defendant and the against plaintiffs. The plain- tiffs affirm. appeal. We
On appeal, the do not that the jury verdict contend against the manifest of weight Rather, the evidence. maintain they are a they entitled to of the judgment reversal and a remand for a new trial because of errors occurring several at trial which substan- tially prejudiced them. the do Because not contend that the verdict is against weight manifest of evidence, we need not a give detailed recital of all the evidence at trial. The relevant evi- resolving dence for purposes plaintiffs’ allegations of error as follows.
Mr. Tómaszewski is 61 old years and has history gastric pain 1958, and heartburn. In diagnosed having as an ulcer Dr. and was on Poppens placed a restrictive diet. Sometime between 1976, seeing Brannon, and Mr. Dr. began Tómaszewski who is since Dr. deceased, for heartburn. Bran- pain, gastric pain abdominal and non testified Tagamet for his Mr. Tomaszewski prescribed symptoms. that he as Tagamet took the needed. 1976,
In di- again Mr. Tomaszewski visited Dr. and was Poppens sedatives, agnosed having gastritis. as acute The doctor prescribed That Mr. Tomaszewski vis- tranquilizers year, and bland diet. same Higgins. gastroin- Dr. upper ited Clinic and was treated An Mayo nar- reflux or a ray endoscopy esophagitis, testinal X and an revealed in the area rowing esophagus, ring, a Schatzki’s stricture Hig- hiatal The stomach was normal. Dr. diaphragm, and a hernia. gins Tagamet. advised him continue with the 1981, Konetzki, In who had taken Mr. Tomaszewski visited Dr. of lower gave history over He the doctor a practice. Dr. Brannon’s and heart- upper pain, upper gastric pain thoracic abdominal pain, ulcer. Dr. burn, esophagitis consistent reflux and with symptoms going reflux had been esophagitis problem Konetzki indicated to Mr. To- significant improvement suggested on too without long Dr. recommended he consider Konetzki also surgery. maszewski that Mr. surgery complied he did not believe Tomaszewski with because for Such management problems. the recommendations his times a with taking Tagamet day recommendations included four foods, bedtime, large meals avoiding cigarettes, meals and at certain as Mr. stress, such time the head of the bed. Until elevating Tagamet. Konetzki prescribed Tomaszewski chose Dr. surgery, in December of Mr. the defendant doctor Tomaszewski first saw doctor, Dr. Tarsinos. wife’s recommendation and sched- history familiar with Mr. Tomaszewski’s defendant became revealed the same re- endoscopy. endoscopy problems uled an Clinic a Schatzki’s Mayo endoscopy esophagitis, vealed by —reflux It and a hernia. also revealed ring diaphragm, the area hiatal the rec- then to someone from spoke duodenal ulcer. The defendant person ap- This telephone. ords Clinic over department Mayo record from Mr. Tomaszewski’s medical read defendant parently Mayo Clinic on his and tests and Clinic. Based observations Mayo medical treatment had record, conclusion that it was defendant’s problems to correct the surgery plaintiff required failed and that the *4 hernia, ulcer. of reflux hiatal and esophagitis, opin- he to the his explained plaintiffs testified that
The defendant prob- Mr. Tomaszewski’s to correct necessary ion that surgery and surgery of the of such plaintiffs informed the risks lems. He also the ulcer Mr. Tomaszewski. To correct options to other available vagus cut the nerves that he would explained the defendant problem, If Mr. in the stomach. being produced decrease the amount of acid cell a va- partial Tomaszewski’s he would anatomy permitted, perform not, If the entire of the nerve are removed. gotomy where branches vagus vagot- called a truncal procedure nerve would be severed in a omy. py- A truncal an additional called vagotomy requires procedure or an in the stomach to loroplasty, the lower stomach allow opening empty. “dump- Risks attendant to a include diarrhea and pyloroplasty ing syndrome,” or the food immedi- passage incompletely digested ately after To eating. esophagitis, correct hiatal hernia and reflux the defendant he explained Angle- that would a device called an apply ring. chik antireflux The defendant maintains that Mr. Tomaszewski to undergo elected surgery with the attendant risks.
During Mr. Tomaszewski’s surgery, vagotomy a truncal and pylo- were roplasty performed. Following surgery, experi- Mr. Tomaszewski enced chronic diarrhea and He his dumping syndrome: wife filed against suit the defendant for medical the- malpractice. ories of recovery at trial were basically Mr. Tomaszewski did not give his informed consent to procedure performed or its attendant risks and that procedure performed was because the unnecessary standard of care for Mr. Tomaszewski’s condition was medical man- agement. The returned jury a verdict for the defendant.
The plaintiff? appeal urge that several errors occurred at trial warranting a reversal. Where it is not contended verdict against the manifest weight evidence, verdict will be disturbed for contentions of nonprejudicial object nature. The re view is not to determine whether the record is free of completely er ror, but any whether error occurred which operated prejudice of appellant or unduly affected the outcome Saputo Fatla below. Ill. 775. App. 3d argue first that the court trial committed reversible error when it denied their motion for mistrial based on a remark during testimony which allegedly violated order an limine. trial, Prior the court entered an order limine all prohibiting witnesses from referring to made by statements either of, about the incompetence their dissatisfac- with, tion members of the medical community. Notwithstanding order, the following place took at trial:
“Q. Attorney]: you What information did receive on [Defense this patient first you before saw him?
A. gentleman That this had pain, difficulty [Defendant]: swallowing, and the condition enough was severe needed to be seen soon. That he had been to another referred *5 surgeon surgeon that a son-of-a- but had stated the other was had— bitch who Attorney]: Objection, your
MR. WIENHOLD [Plaintiffs’ This specifically Honor. was covered in motion in limine and has but inflame the nothing jury. done
THE COURT: Sustained. it
MR. Move that be stricken and be WIENHOLD: witness admonished. first, I I
THE COURT: would instruct would strike the the— last not to consider last jury statement instruct doctors, of the other what you statement what he said about referring are to Counsel.” of a
For of an to basis the violation order limine be clear. Where trial, must be and the violation specific new the order is reversible error. great, violation prejudice likelihood of 766.) Ill. 3d (In plaintiffs App. re Estate Loesch from the remark that ensued defendant’s because prejudice maintain the case credibility it Mr. Tomaszewski’s because destroyed credibility parties. disagree. turned on the We of in first in the lack controversy, To on the issue prevail to claim, the had prove formed consent risks and results Mr. of the foreseeable failed to advise Tomaszewski to as the reasonable alternatives a as well surgical procedure of given of the same practitioner medical that a reasonable procedure, such a risks, disclosed such would have in similar circumstances school failure to disclose alternatives, proximately and that the results or to con physician The failure a injuries. caused Mr. Tomaszewski’s of disclosure must be proved form to the standards professional (Guebard Jabaay (1983), App. medical expert evidence. little, anything, if do credibility Mr. 1.) Tomaszewski’s with the issue. a
Moreover, opinion partic expressed Mr. Tomaszewski’s definitive about nothing really a son a bitch surgeon says ular was That is to of the opinion. or the holder surgeon’s either the abilities surgeon A can be either point. irrelevant to say, quite the remark son a regarded as a and still be profession fully competent experi of common That is matter colleagues. bitch by patients to the expressed opinion Tomaszewski’s was ence. The Mr. fact credibility. Fur on Tomaszewski’s reflect Mr. jury adversely does not jury to the ther, of the remark and instruction striking the court’s it the situation. disregard adequate commit- in the case was whether defendant
The second issue pursuing than malpractice recommending surgery ted rather too, issue, ju- on the management. depended course of This medical ry’s dependent assessment of and was not expert on Mr. Tomaszewski’s credibility. court
Another of was whether arguments introducing allegedly erred in from prohibiting evidence the ex tending to show that defendant doctor was motivated istence of course forego management health insurance to of medical surgical in favor of of health intervention. Evidence the existence rel inadmissible, insurance is generally may prove but be admitted (Nitrin, evant raised in a Inc. Corp. issues case. v. Bethlehem Steel *6 (1976), of App. 577.) above, 35 Ill. 3d As the issues stated on malpractice depended jury’s the assessment the testimony of expert depend witnesses. The issues did not turn the or on defend Thus, ant’s motivation. evidence the that had health insur plaintiffs ance, it, and the that defendant was irrel allegedly motivated was by evant to the issues trial at and was from the properly kept jury.
Further, plaintiffs’ the of on proof offer the was subject specula- tive at The of proof best. offer demonstrated that upon learning Mr. insurance, Tomaszewski health him told he could the endoscopic performed have examination at the hospital be ad- overnight mitted since his insurance would for pay it. Such evidence demonstrates this court that the defendant was the trying save plaintiffs out-of-pocket expenses, not that the defendant was improp- erly motivated. The of offer proof further demonstrated that the on same day the defendant learned of the health insurance he wrote in his notes that he going was to recommend surgery following the procedure. fail endoscopic We to see how this evidence im- reveals proper motivation on the of part the The notes defendant. are com- pletely consistent with Mr. Tomaszewski’s testimony that the defend- ant the possibility discussed of with surgery him and recommended it to him during their first consultation.
nextWe turn to the plaintiffs’ argument that the court in allowing erred the incompetent, hearsay the testimony of defendant regarding what learned the plaintiff about from his telephone con versation an with unidentified at person disagree Mayo Clinic. We that of the telephone evidence conversation was or con incompetent hearsay. stituted As the regards the competence evidence, calls by a witness to a place of business and the relating to business are assuming admissible regularity authority in the answering. This is so whether the caller/witness knew the identification of the an swering or While party weight not. the to be given to such a conver- fact, sation is to be determined the trier of the not err in by court did the admitting evidence. v. National 225 Ill. Godair Ham Bank 572. regard
In to the to the plaintiffs’ hearsay objection conver sation, a definition of is in order: hearsay evidence,
“Hearsay evidence in court written testimony court, a statement made out of such statement being offered as therein, an assertion show the truth of matters asserted resting upon credibility thus for its value the of the out-of-court 116, 121.) asserter.” Carpenter (1963), (People The Mayo statement of the unidentified at Clinic was of- person i.e., the statement, fered that truth defendant for truth of Rather, Clinic it offered as basis Mayo medical records. for in- treating surgical the defendant’s that opinion, physician, as. tervention was course action Mr. Tomaszewski’s case. proper Further, upon credibility the value of the evidence did not rest Clinic; rested person credibility unidentified it Mayo whether or not the jury defendant and believed had the first place. testimony defendant conversation did not constitute and was admitted. hearsay properly next the court committed reversible maintain error it that he hearsay testimony when allowed the defendant’s first Tarsinos, agreed Mr. told Dr. who being to see Tomaszewski after deceased, urgently. Mr. needed be seen since Tomaszewski Mr. Tomaszewski’s argue implied intervention, they attempt condition when were required emergency *7 that not. error occurred ing assuming it did Even that establish state in it harmless. As the allowing the was testimony, Mr. condi brief, their it was at trial that Tomaszewski’s established as well as tion situation. defendant present emergency did not an or ulcer prob three that neither the esophageal other doctors testified more than out lem This emergency testimony intervention. required statement. weighed alleged error in the defendant’s any were they improp- turn to plaintiffs’ argument We next the was introducing from that Mr. Tomaszewski erly testimony prevented basis, as the ex- “as rather than only taking Tagamet on an needed” of ulcer dis- management for perts necessary testified was one the ease, During point to Dr. Brannon’s instructions. pursuant the trial, as testimony hearsay the trial court the precluded of Dr. a portion trial also struck defendant’s court .objection. that Mr. doctor testified wherein the testimony deposition Konetzki’s as needed Tagamet on an ba- him that took related to Tomaszewski sis pursuant to Dr. Brannon’s orders. arguendo was
Assuming improperly kept from It party error is harmless. that a can jury, any recognized same complain exclusion evidence where the evidence sub (Saputo Fatla sequently App. 775.) admitted. Here, Mr. following colloquy took between Tomaszewski and place attorney trial:
“Q. tell Did with what you frequency you [the defendant] Tagamet were taking your seeing him? prior A. Yes. I I believe did.
Q. tell him in that you regard? What did A. Pardon?
Q. tell you What did him? IA. prescription that—the and advice other told him seen, doctors that I had which Brannon that me the gave prescription the Tagamet, that it was when I was really, for know, overworked, this, know, you you like stuff stuff, the heartburn and in the I discomfort, then then would take this.
Q. And how often take would it? you Well, might A. it If output, you related know. you —it I long something was—if worked hours and I have the did then I go regimented heartburn and the discomfort on would something this, diet or like I take it in morning would and the in the evening, morning and the and then it evening, go would away.
Q. long How would be? take it long How would you morning and evening? AA. few days.” (Emphasis added.) j
Additionally, following testimony place took at trial between Mr. Tomaszewski and his attorney:
“Q. Gene, you Brannon, after saw Dr. how did take you over the next Tagamet years? few Dr. prescribed—
A. Brannon me, MRS. Attorney]: FREEMAN your Excuse [Defense I Honor. That’s object any hearsay. voluntary part on the the witness.
THE I’ll COURT: let him Overruled. answer the question. Q. on, Go Gene. Attorney]: [Plaintiffs’ A. Can I—
THE Go question. COURT: ahead and answer the *8 Tagamet A. He it prescribed the because was the newest me. if I what he told right above—is it all saw thing [sic] THE Youcan what did. say you COURT:No.
* * * words, I the Taga- I’m In other took sorry. A. Okay. Okay. I— met in morning night when Q. Go ahead. Okay. I and when I—the
A. had discomfort and heartburn When after, as I previously, as everything heartburn Was relieved said previously. are about?
Q. you talking to three is that what days Two a week- maybe time it took and the time that A. Whatever All I on a or stuff. Sunday end would come and would rest up it. explain I how to would subside and don’t know things these that’s— anymore Then I didn’t take it because question. THE Ask next your COURT: say. A. I don’t know what to it and you All And then would subside
Q. right. you say it is that— anyihore, wouldn’t take Well, I was—
A. I can’t That’s what sáy.
Q. No, can. you added.) —I told to do.” (Emphasis A. was harm- bf the evidence renders above-quoted the admission We believe of error on appeal. less the plaintiffs’ complaint in striking the trial court erred Next, the contend plaintiffs that it is reason to a Higgins' hypothetical question the answer of Dr. symp for ulcer Tagamet therapy course of able to initiate a second ther of Tagamet a first course following toms which recur successful evidentiary There must be an disagree. symptoms. for ulcer We apy T. (Gus hypothetical question. for each element included basis Ill. 2d Industrial Com/m’n Painting Co. v. Handge & Son had ever that Mr. Tomaszewski Here, no 201.) there was evidence in the Tagamet therapy past treated with successfully been course undergoing second had been Tagamet therapy for the hypotheti no basis evidentiary there was therapy. such answer, it stricken. properly cal and was question trial court erred un that the next contend argu their case. This arguing theory them from restricting duly rebuttal, attorney closing In ment meritless. progress on certain a date the defendant altered argument the op the nature of he informed the
notes to show that it, when to performing risks prior as well as its erative procedure when operation after fact, were prepared the notes agreed vagotomy learned that Mr. to a truncal Tomaszewski had *9 and argument, The defendant to the pyloroplasty. objected court plaintiffs’ rephrase argument. ordered the to attorney argument, continued with the and made his attorney closing without objection, changed, date on the notes had been that the defendant’s notes were after rather than prepared surgery, before in surgery. plaintiffs were not restricted unduly argu- ing a essential to their theory case.
The plaintiffs’ argument final is that the effect of cumulative the alleged errors warrants a of reversal the case. We disagree. We have carefully examined the in regard record this and hold that any committed, errors individually or do not a new collectively, require trial. Accordingly, judgment of circuit court Bureau County is affirmed.
Affirmed.
SCOTT, J., concurs. PRESIDING STOUDER, JUSTICE dissenting: I disagree with the set result forth in the opinion. My majority disagreement is with the majority’s finding Dr. hearsay Godbole’s testimony is In competent. its al- opinion, finds that the majority leged conversation the defendant to have purported person with a from the Mayo admitted, Clinic to have properly been trial court.
With regard to the competency Godbole, of Dr. the majority finds the testimony competent to be prin based ciple calls made aby place witness to a relating business that business are admissible assuming in regularity an authority (Godair Ham v. National Bank swering. (1907), 572, 225 Ill. 80 N.E. 407.) This principle applies whether the caller/witness knew the identi v. answering fication of the or Godair Ham National Bank party not.
(1907),
572,
225 Ill.
While I do not find fault with the above-stated provisions, they are not applicable this instance. After search of I have authority, been unable to locate any cases where the provisions above have been applied a similar instance as the present case. The applied rule is only cases those when one to party places business litigation to the telephone call party establishment other to the litigation means of a number listed for e.g., Godair (See, business purposes. v. Ham National Bank (1907), 572, 225 407; Ill. 80 N.E. Rogers 640 v. Trapp v. 533; Grain Co. Tanton (1907), 136 Ill. App. Rockford 379; Delaney Higgins v. &
Electric Co.
McNeil
Ill.
(1914),
App.
186
Insurance Co.
524;
Indemnity
Korch v.
Co.
195 Ill.
(1915),
App.
v.
North
Holland
96,
298;
Ill.
67
America
(1946),
329
N.E.2d
App.
v.
Gothberg
127,
517;
N.E.2d
O’Shea
(1950),
App.
342 Ill.
95
Pru
Devers v.
372,
12;
Nemerovski
208 N.E.2d
App.
58 Ill.
2d
(1965),
Insurance Co.
Ill.
3d
Property
Casualty
dential
&
(1980),
86
App.
950,
462;
Ill.
469
Seiber
542,
App.
Smith
408 N.E.2d
231;
(1936);
see
71 A.L.R.
that the information 186, (Wilson v. Clark 84 Ill. 2d (1981), of a that is reliable. type case, ob 1322, the information 193, 1326.) In the instant 417 N.E.2d defendant’s reliable. The cannot be considered tained doctor medical ordinary contrary conversation is telephone of his account re would not Ordinarily, a clinic concerning confidentiality. practices to a of its concerning patients records one lease confidential does argue, majority does not The defendant telephone caller. tele records of confidential medical that the release suggest, Further, practice. is an established medical caller phone indicating log notation Clinic or any Mayo produced has not records. plaintiff’s to them release request call called, he he time what identify day what cannot The defendant addition, the doctor’s testimony called, to. In spoke or whom re foundational underlying self-serving, any without nature Its testimony under hearsay the introduction permit which quirements
641 559, People (1975), rules enunciated in v. Ward 186, v. N.E.2d 171, N.E.2d and Wilson Clark Ill. 2d 1322. the trial the doctor’s testimony court failed to exclude concerning Mayo the call he made to the Clinic. purportedly to a
Finally, since the area covered related criti- case, cal issue this the error was so that a new trial is prejudicial order. ILLINOIS,
THE Plaintiff-Appellee, PEOPLE OF THE STATEOF WILSON, Defendant-Appellant. MELVIN Third District No. 3-87-0676 26, 1988. Opinion 24, 1988. September Rehearing filed denied October