Vazirzadeh v. KaminskiVazirzadeh v. Kaminski
delivered the opinion of the court:
Plaintiff, Vera Vazirzadeh, administrator of the estate of Radoslav Jakovljevic, brought an action pursuant to the Wrongful Death Act
On June 8, 1977, Radoslav Jakovljevic entered McNeal Memorial Hospital where he underwent knee surgery the following day. On June 15, 1977, he expired as a result of a pulmonary embolism. The plaintiff alleged that the defendant, Robert S. Kaminski, M.D., was negligent in that he failed to properly diagnose and treat post-operative symptoms of elevated temperature, rapid heart rate, shortness of breath and chest pain and that said failure was inconsistent with the established standard of care for a physician in the Chicago area in 1977.
The patient’s symptoms were not disputed by the parties. The patient’s chart showed entries by nurses on the evening of June 13, 1977, regarding his shortness of breath and chest pain. The entries stated that the pain was of short duration. The chart also indicated' that the patient had an irregular pulse and shortness of breath on the morning of June 14,1977.
The plaintiff called the defendant, Dr. Kaminski, to testify. Dr. Kaminski had seen the patient early in the afternoon of June 14, 1977. He noted the patient’s shortness of breath and rapid heart rate on the chаrt. He wrote orders for two blood cultures, “stat,” chest X ray and EKG, “today,” intravenous antibiotics and “have Dr. Couropmitree,” an internist, “see patient in consult.” Dr. Kaminski testified that although the written order for the consultation did not contain the words “stat” or “today,” he told an unidentified nurse to have Dr. Couropmitree see the patient “today.” The plaintiff’s objection to this testimony as being hearsay and without the proper foundation was overruled.
Dr. Kaminski further testified that he asked the decedent about the chest pain when he saw him that afternoon and that the decedent told him the pain was of short duration, was relieved by belching and
Dr. Kaminski testified that he considered the рossibility of a pulmonary embolism on June 14, 1977, but thought knee infection and septicemia to be more likely diagnoses. He agreed that the demonstrated symptoms were all signs of pulmonary embolism and that he could have given the patient heparin prophylaetically until such time as an embolism could have been ruled out. He instead ordered a consultation because of his concerns about septicemia or possible pulmonary or cardiac complications.
The plаintiff next called Nurse Salud, who testified that if a physician gave a verbal order which changed a written order from an unspecified time to “today” of “stat” it was the custom of the nurses to enter that change on the chart. She stated she called Dr. Couropmitree at 10 o’clock the evening of June 14,1977.
Dr. Charles Rice, director of intensive' care at Michael Reese Hospital, testified for the plaintiff as an expert witness. He explained that when a tourniquet is applied to a leg, as in surgery, venous stasis (sluggish blood flow in the veins) can occur. This can lead to a clot in the vein which becomes a pulmonary embolism if it breaks loose and travels to the lungs. This is a well-known complication of lower limb surgery. He described the symptoms, all of which were consistent with those observed in the patient, and explained that they can be of short duration or sporadic. If a physician even remotely suspected a pulmonary embolism, heparin should have been started. Had heparin beеn administered when the defendant saw the decedent on the afternoon of June 14, 1977, the patient would have had a 93% chance of survival. Dr. Rice testified that in his opinion the patient received substandard care.
The plaintiff called Dr. Saul Haskell, an orthopedic surgeon, whose testimony was similar to the testimony of Dr. Rice.
The plaintiff rested her case in chief on Thursday, December 1, 1983. Friday morning defendant’s attorney informed plaintiff’s attorney that he had an additional expert witness, Dr. Westenfeldеr, an internist with an infectious disease subspecialty. Plaintiff’s attorney presented a motion to bar the testimony of Dr. Westenfelder. Plaintiff’s attorney alleged that in response to his notice to produce the names of the defendant’s expert witnesses before the start of the trial, counsel
Plaintiff’s attorney deposed Dr. Westenfelder on Saturday, December 3, 1983. Dr. Westenfelder testified the following Monday morning. In his testimony he made repeated references to the standard of care of the “non-internist.” The standard was, in his opinion, lower than that of an internist and the defendant, he felt, acted in accordance with that standard. He was of the further opinion that the defendant’s diagnosis of knеe infection was a reasonable diagnosis for a non-internist.
Dr. Westenfelder testified that he reviewed the case for the defendant on June 14, 1982. He wrote a letter very critical of Dr. Kaminski at that time which indicated that the treatment given the patient by the defendant showed a lack of concern. Plaintiff’s counsel was not aware of this letter when he presented his case to the jury. He was not made aware of this letter until he moved to bar Dr. Westenfelder’s testimony, a year and a half aftеr the letter was written.
Dr. Westenfelder testified that he was under the wrong impression when he wrote the letter. After having read the nurses’ depositions, he now blamed them for not keeping Dr. Kaminski informed, not executing his orders in a timely fashion and not communicating with each other.
Dr. Ahstrom, an orthopedic surgeon, was also called as a defense witness. He testified that if Dr. Kaminski indeed ordered the consultation for that day it was within the accepted standard of care.
Dr. Couropmitree, a defense witness, testified that when he was called on the night of June 14, 1977, he was not told of the decedent’s shortness of breath or irregular heart rate. Had he been informed, he would have at least sent a resident physician to see the decedent. He stated that the order for consultation written by Dr. Kaminski was a routine order.
The defense rested. The jury returned a verdict of not guilty, upon which judgment was entered. Plaintiff’s motion for a new trial, which alleged that the verdict for the defendant was not supported by a preponderance of the evidence, was heard and denied. ■
It was established by the plaintiff and undisputed by the defendant that chest pain is a primary symptоm, of a pulmonary embolism. The justification Dr. Kaminski gave for ignoring this symptom was his belief that it was insignificant. The effect of the words allegedly spoken by the decedent to the defendant would have been to minimize the significance of the pain. Defendant’s testimony of this conversation with the decedent was therefore extremely supportive of the defense and, with no other witnesses to it, impossible to refute.
In arguing that this conversation between the defendant and the decedent should have beеn excluded, the plaintiff relied on the Dead Man’s Act (Ill. Rev. Stat. 1983, ch. 110, par. 8 — 201):
“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the dеceased or person under legal disability, except in the following instances: (a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.”
The defеndant’s attorney argued that the conversation came within exception (a) of the statute in that the plaintiff had opened the door to the admission of the conversation when the decedent’s wife testified that the decedent complained of pain and the defendant was questioned about that symptom. Counsel for the defendant further contended that the entire hospitalization was the “event” within .the meaning of the statute, or, more narrowly, that the chest pain of June
The defendant relied on Perkins v. Brown (1948),
“The rule is that where a party, who is incompetent to testify for himself as to a transaction, is called by the adverse party and questioned concerning the same, he is thereby made competent to testify in his own behalf as to the whole of such transaction, although his incompetency is not removed as to other matters about which he was not interrogated by the adverse party.”400 Ill. 490 , 497,81 N.E.2d 207 .
The trial court accepted the Perkins rationale in overruling the plaintiff’s motion to exclude Dr. Kaminski’s testimony. In so doing the court erred.
Perkins states that “incompetency is not removed as to other matters about which he [the defendant] was not interrogated by the adverse party.” The plaintiff’s attorney at no time asked Dr. Kaminski to relate his conversation with the decedent. That the decedent’s wife testified to a conversation between herself and her late husband did not qualify the defendant to testify about a conversation he had with the decedent. Defendant was not questioned about the conversation between the decedent and his wife. Similarly, testimony by the nurses about conversations with the decedent would not cause Dr. Kaminski’s conversatiоn with the decedent to become admissible.
Perkins is also inapplicable because it interpreted the prior Dead Man’s Act, the language of which is materially different from that of the present statute. (Manning v. Mock (1983),
In Mоck, the action, was to invalidate a will. One of plaintiff’s theories was that Mock exerted undue influence on the testatrix. At trial the plaintiffs called as witnesses the attorney who drafted the will and a -witness to the execution of the will. Mock sought to testify to conversations he had with the testatrix during a six-week period prior to the signing of the will. He contended that the testimony of
The accepted objective sought to be attainеd by the Dead Man’s Act is fairness. The interested party, in this case Dr. Kaminski,. is barred from testifying to, but only to, matters which the deceased could have refuted. (See Foster v. Englewood Hospital Association (1974),
A conversation with a patient regarding symptоms, treatment, etc., or the relevant conclusions resulting therefrom, can be noted on the patient’s chart. The more complete the patient’s records, the better informed is the medical staff and the higher the standard of care is likely to be. That medical records are admissible under the rules controlling the admission of business records is but an extrinsic benefit.
The parties are agreed that there are five factors to consider in determining whether the testimony of an undisclosed witness
Plaintiff argues that defense attorney’s supposed good-faith compliance with the discovery rules is highly suspect. Although the defendant’s attorney early informed plaintiff’s attorney that Dr. Westenfelder had reviewed the decedent’s file, defendant’s аttorney also told plaintiff’s attorney that he did not think he would call him as a witness — a' reasonable conclusion in light of Dr. Westenfelder’s negative report and a conclusion upon which plaintiff’s attorney relied. The problem arose when defense counsel resubmitted reports and nurses’ transcripts to the doctor on November 19, 1977, and not only failed to inform plaintiff’s counsel, but in response to a direct request of plaintiff’s counsel for names of additional witnesses, the defendant’s attorney told him that Dr. Westenfelder was out of town and could not be reached, a technically true but misleading response. We defer to the trial judge’s refusal to find bad faith. He was in a far better position to evaluate the words and actions of those appearing before him.
There is no argument that the objection to Dr. Westenfelder’s testimony was not timely made. Attorney for the plaintiff objected as soon as he became aware of the defense counsel’s intent. As to the diligence of the plaintiff’s attorney, he had submitted a Supreme Court Rule 237 notice and had been told that Dr. Westenfelder probably would not be called as a witness, but if called he would only testify in support of Dr. Kaminski’s diagnosis of infection and septicemia. As late as November 28, 1983, in a meeting held in chambers with the trial judge, plaintiff’s attorney was told again, in response to his request for additional names of experts, that defense counsel thought that he would not put Dr. Westenfelder on the stand. In light of these circumstances no fault сan be found in the failure of plaintiff’s attorney to depose the doctor before trial.
The issues of surprise and prejudicial effect can be considered together. When defense counsel repeatedly indicated that he did not think he would call Dr. Westenfelder, ás late as three days before he was to present his case and long after depositions of the plaintiff’s witnesses had been taken, it was reasonable for plaintiff’s attorney to assume that Dr. Westenfelder would not be called. Plaintiff’s case was planned and presented with a format keyed to the issues as determined by the normal process of discovery. It was only after the plaintiff’s
Although the calling of Dr. Westenfelder as a witness was a surprise, his testimony may not have been so prejudicial as to mandate a reversal had the doctor testified to the materials and issues raised by the other experts, as it was originally suggested he would do. Instead, however, Dr. Westenfelder’s testimony introduced the totally new concept of a “non-internist” and implied that a different standard of care was expected of such a physician. Latеr in his testimony Dr. Westenfelder suggested the decedent’s death was attributed to either the nurses or Dr. Couropmitree, who were nonparties to this action.
Dr. Westenfelder’s testimony was highly prejudicial to the plaintiff’s case. It was totally unanticipated and violative of the spirit of discovery. “[T]he purpose of the discovery rules [is] to enable attorneys to better prepare and evaluate their cases. *** ‘[Ascertainment of truth and ultimate disposition of the lawsuit’ [are] better served when pаrties are well educated as to their respective claims in advance of trial.” Carlson v. General Motors Corp. (1972),
The defendant cites Plost v. Louis A. Weiss Memorial Hospital (1978),
Plost is distinguishable from the case at bar. In Plost the plaintiff’s counsel had complied with all discovery rules. It was his intention to call those witnesses he had disclosed. It was through no fault of his own that those witnesses became unavailable and it was of a very real necessity that he have expert testimony. The court stated that where the identity of an expert witness is first revealed during trial, trial may be delayed to allow opposing counsel to depose the witness, so there is no reason to limit a party to those experts listed in answers to interrogatories.
The defendant’s attorney did not belatedly find himself without an expert witness, and Dr. Westenfelder was not revealed during the
Being аllowed to depose Dr. Westenfelder two days before he was to take the stand and after the conclusion of the plaintiff’s case in chief could hardly compare with being informed prior to trial. The trial court was willing to allow plaintiff’s counsel a few days — perhaps until as late as Wednesday — to find rebuttal witnesses. Plaintiff’s counsel stated that he would be unable to have his experts return and that he had no others readily available to him.
The trial court suggested he could subpoena experts. The court stated in Plost that the wisdom of that tactic is questionable:
“Proceeding to trial with an expert who is reluctant to testify and who has been subpoenaed in the hope he will shed favorable light on the case is also dangerous to successful litigation. It is doubtful such an unwilling witness would be desirous of aiding the litigant who has caused his inconvenience.” Plost v. Louis A. Weiss Memorial Hospital (1972),62 Ill. App. 3d 253 , 258,378 N.E.2d 1176 .
To combat the defense that the nurses or Dr. Couropmitree were at fault in the decedent’s death would have rеquired a different approach than that presented in the plaintiffs case in chief. Plaintiff’s attorney was thrust into the position of trying to defend persons who were not parties to the action. This was an undue burden. The trial court abused its discretion in allowing Dr. Westenfelder's testimony.
Plaintiff contends that based upon a lack of proper foundation it was error to allow the defendant, Dr. Kaminski, to testify to a conversation he allegedly had with an unidentified nurse. We agree.
Dr. Kaminski testified that the conversation took place on June 14, 1977, at approximately 1:30 p.m. in the nurses’ station. Dr. Kaminski failed to identify to whom he spoke. Upon objection by plaintiff’s attorney Dr. Kaminski stated that he could not remember which nurse it was. The court, in overruling the objection, observed that the defendant had “done his best.”
In Lundahl v. Rockford Memorial Hospital Association (1968),
In this case it appears that the defendant made no effort to discover
In view of our finding of error with respect to the issues presented above, we do not consider to what degree the verdict was supported by the evidence.
Reversed and remanded.
SULLIVAN, P.J., and LORENZ, J., concur.