Petryshyn v. Slotky

JUSTICE STEIGMANN

delivered the opinion of the court:

This case presents the question of whether a physician may be qualified to testify as an expert regarding the standard of care of a nurse who was a surgical team member. We hold that the physician in this case was so qualified.

Plaintiff, Kimberly A. Petryshyn, sued defendants, Barry Slotky, M.D., S.C., and OSF Health Care System, d/b/a St. Joseph Medical Center, alleging medical malpractice, based on complications she suffered after undergoing a March 1999 cesarean-section surgery (hereinafter the C-section). St. Joseph Medical Center and Petryshyn later settled. Following a March 2007 trial, with Slotky as the sole defendant, a jury returned a verdict in his favor.

In April 2007, Petryshyn filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial, arguing that the trial court erred by admitting into evidence her expert physician’s testimony — which she elicited in an evidence deposition — regarding the applicable nursing standard of care. Following an August 2007 hearing, the court granted her motion for a new trial.

Slotky appeals the trial court’s decision granting Petryshyn’s motion for a new trial. We reverse.

I. BACKGROUND

In March 1999, Petryshyn experienced labor pains and was admitted to St. Joseph Medical Center as Slotky’s patient. Slotky placed an intrauterine pressure catheter (hereinafter IUPC) into Petryshyn’s uterus to monitor the strength and frequency of her labor contractions. Because Petryshyn’s labor was not progressing normally, Slotky performed a nonemergency C-section and successfully delivered Petryshyn’s child.

In July 1999, Petryshyn first experienced an uncomfortable “poking” or “stabbing” pain in her pelvic region. From April through July 2000, Petryshyn sought treatment from another physician on six different occasions, complaining of (1) extreme lower abdominal pain, (2) heavy bleeding, and (3) urinary and bowel pain. In August 2000, she again sought medical treatment for stabbing abdominal pains that had steadily increased in severity and frequency. A pelvic examination revealed that a “pointy” foreign object was protruding from her left vaginal wall. An ultrasound and X-ray later revealed that the foreign object, which contained an electronic connecting wire, was inside Petryshyn’s pelvis. The foreign object was later removed and identified as an 11.3-centimeter portion of an IUPC.

Petryshyn sued Slotky and St. Joseph Medical Center, alleging medical malpractice. As earlier noted, prior to trial, Petryshyn settled with St. Joseph Medical Center, which is not a party to this appeal.

In February 2007, David M. Priver, a board-certified physician in obstetrics and gynecology with 33 years of experience, testified as Petryshyn’s expert in an evidence deposition. At a March 2007 hearing (immediately prior to the jury trial) which occurred after Petryshyn settled with St. Joseph Medical Center, Petryshyn moved to disavow the portion of Priver’s evidence deposition testimony that pertained to the nursing standard of care. Because Slotky had previously disclosed to Petryshyn that he adopted Priver’s opinion testimony pursuant to Supreme Court Rule 213 (210 Ill. 2d R. 213), he sought to introduce the testimony Petryshyn moved to disavow pursuant to Supreme Court Rule 212(c) (210 Ill. 2d R. 212(c)). See Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 1001, 874 N.E.2d 100, 111 (2007), quoting Prince v. Hutchinson, 49 Ill. App. 3d 990, 995, 365 N.E.2d 549, 552 (1977) (“ ‘An evidence deposition is not the “property” of the party who takes it, and any portion of an evidence deposition may be offered by either side’ ”). Petryshyn objected, arguing that Priver’s testimony concerning the nursing standard of care — testimony that she elicited on direct examination in the evidence deposition — was inadmissible under the decision of the Supreme Court of Illinois in Sullivan v. Edward Hospital, 209 Ill. 2d 100, 119, 806 N.E.2d 645, 657 (2004). After considering the parties’ arguments, the court overruled Petryshyn’s objection, finding that Priver’s testimony regarding the nursing standard of care was “integrally related” to the functions of the surgical “team.” The record shows that the “surgical team” involved in Petryshyn’s C-section consisted of two nurses and Slotky.

On direct examination, Priver testified that a pregnant patient’s overall labor status is monitored through an IUPC. Priver explained that an IUPC has an electronic pressure sensor that is inserted into the patient’s uterine cavity through the birth canal and cervix to monitor (1) uterine-contraction duration and (2) the fetus’ heartbeat. Additionally, the IUPC contains an internal wiring device that connects the pressure sensor to an external recording device. Priver also stated that although a physician inserts the IUPC in the uterus, it is normally removed by a nurse prior to childbirth.

Priver further explained that a C-section is a surgical procedure involving a small initial incision in the patient’s lower abdomen. The initial incision is usually extended by using “bandage scissors,” so called because they are blunt instruments that do not harm a patient’s internal organs. Priver stated that following the C-section, the operating room staff typically performs a “sponge and instrument count” to confirm that no foreign objects remain in a patient’s body. Priver opined that if a foreign object were to remain in a patient’s body, it could cause infection, pain, and hemorrhaging.

Priver reviewed Petryshyn’s medical records and depositions and opined that within a reasonable degree of medical certainty, (1) the IUPC (a) had not been removed when Petryshyn’s C-section began and (b) was cut by bandage scissors as Slotky extended the initial incision, (2) approximately 10 centimeters of the IUPC remained inside Petryshyn’s uterus after the C-section, (3) the retained portion of the IUPC would have been discovered if Slotky had manually examined Petryshyn’s uterus, and (4) Slotky violated the physician’s standard of care by (a) allowing the IUPC to remain in Petryshyn’s uterus and (b) failing to check the uterus before closing the C-section incision. Priver based his last opinion on the fact that the labor-and-delivery records contained no showing that Slotky had conducted a manual examination of Petryshyn’s uterus.

Priver also opined that within a reasonable degree of medical certainty, the nurses violated their standard of care by not inspecting the IUPC to ensure that it was intact before discarding it. Priver further testified that if the nurses had seen that the IUPC was not intact, it would have been within their standard of care to communicate their inspection results to Slotky.

On cross-examination, Priver acknowledged that (1) although Slotky had placed the IUPC in Petryshyn’s uterus, the medical records did not identify who removed the portion of the IUPC that did not remain in Petryshyn’s uterus and (2) a manual examination of the uterus is not always noted in the labor-and-delivery records. (Slotky testified that he did perform a manual examination of Petryshyn’s uterus, even though he did not so note in the labor-and-delivery records.)

In Slotky’s closing argument, he reminded the jury that Petryshyn’s expert, Priver, testified that the operating room nurses failed to perform their required duties to (1) remove the IUPC prior to the C-section, (2) inspect all of the operating room equipment following the C-section, and (3) report to Slotky if any of the equipment was not intact. Essentially, Slotky argued that because Petryshyn’s own expert testified that the nurses failed to perform their duty, it was not appropriate for the jury to hold him liable for Petryshyn’s injuries, given that the nurses violated their standard of care. The jury later returned a verdict in Slotky’s favor.

In April 2007, Petryshyn filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial, arguing that the trial court erred by allowing Priver’s testimony regarding the applicable nursing standard of care. Following an August 2007 hearing on Petryshyn’s motion, the court granted the motion for a new trial, concluding that, based upon the authority of Garley v. Columbia LaGrange Memorial Hospital, 351 Ill. App. 3d 398, 813 N.E.2d 1030 (2004), the court had erred by permitting the jury to hear the portion of Priver’s testimony regarding the nursing standard of care.

This appeal followed.

II. ANALYSIS

A. The Standard of Review

Slotky argues that the appropriate standard of review is de novo because the trial court erred as a matter of law by relying on Garley, which does not accurately reflect the current state of the law. Petryshyn responds that this court’s review is under the abuse-of-discretion standard. We agree with Petryshyn.

A trial court’s determination to grant or deny a new trial will not be disturbed absent an abuse of discretion. Smith v. Silver Cross Hospital, 339 Ill. App. 3d 67, 74, 790 N.E.2d 77, 84 (2003); see also Lisowski v. MacNeal Memorial Hospital Ass’n, 381 Ill. App. 3d 275, 283, 885 N.E.2d 1120, 1130 (2008) (where the First District, using the abuse-of-discretion standard, reversed the trial court’s order for a new trial in a medical-malpractice case). “ ‘ “Abuse of discretion” means clearly against logic; the question is not whether the appellate court agrees with the [trial] court, but whether the [trial] court acted arbitrarily, without employing conscientious judgment,’ ” or whether, considering all the circumstances, the court acted unreasonably and ignored recognized principles of law, which resulted in substantial prejudice. Long v. Mathew, 336 Ill. App. 3d 595, 600, 783 N.E.2d 1076, 1080 (2003), quoting State Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083, 732 N.E.2d 1094, 1096 (2000).

B. The Evolution of an Expert Physician’s Testimony Regarding a Health-Care Professional’s Standard of Care

1. The Licensing Requirement

In Dolan v. Galluzzo, 77 Ill. 2d 279, 281, 396 N.E.2d 13, 15 (1979), the question before the Supreme Court of Illinois was whether a physician, surgeon, or other medical expert not licensed as a podiatrist could testify to the standard of care a podiatrist owes to his patient. The supreme court held that as a matter of first impression, (1) “to testify as an expert on the standard of care in a given school of medicine, a witness must be licensed therein” and (2) after the licensing requirement has been established, the trial court has the discretion to “determine if the witness is qualified to testify as an expert regarding the standard of care.” Dolan, 77 Ill. 2d at 285, 396 N.E.2d at 16. In so holding, the supreme court stated that the rationale behind the licensing requirement was that different schools of medicine have varying tenets and practices, and allowing a practitioner of one school of medicine to testify to the care and skill of another practitioner from a different school of medicine would result in inequities. Dolan, 77 Ill. 2d at 283, 396 N.E.2d at 16. Thus, “[t]he practitioner of a particular school of medicine is entitled to have his conduct tested by the standards of his school.” Dolan, 77 Ill. 2d at 283, 396 N.E.2d at 16.

2. The Exception to the Licensing Requirement

In Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896, 903-04, 686 N.E.2d 722, 727 (1997), three expert physicians testified that a nurse deviated from her standard of care by failing to properly communicate the condition of a pregnant patient to the treating physician. Because the nurse failed to communicate her observations to the physician, the testifying experts opined that the nurse’s deviation from her standard of care resulted in the patient’s baby being born with brain damage. Wingo, 292 Ill. App. 3d at 903-04, 686 N.E.2d at 727.

The Second District in Wingo concluded that Dolan’s licensing requirement did not apply to the facts of the case based on the following rationale:

“[Dolan] indicate[s] that the reason for the [licensing requirement] is to prevent a higher standard of care being imposed upon the defendant and to ensure that the testifying expert has expertise in dealing with the patient’s medical problem and treatment and that the allegations of negligence are within the expert’s knowledge and observation. Those concerns have not been sacrificed here. In [this] case, the allegations of negligence against [the] nurse did not concern a nursing procedure but, rather, related to what a nurse is required to communicate to a physician about what transpired since the physician last saw the patient. As such[,] the allegations of negligence do not concern an area of medicine *** [where] there would be a different standard [of care] between [a] physician and another school of medicine. Furthermore, it was established that the allegations of negligence were well within the testifying doctors’ knowledge and experience. We believe that a physician should be entitled to testify about what he or she is entitled to rely upon in the area of communication from a nurse in the context of an obstetrical team rendering care to a patient in a hospital.” (Emphasis added.) Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729.

3. The Supreme Court’s Decision in Sullivan

In Sullivan, 209 Ill. 2d at 119, 806 N.E.2d at 657-58, the Supreme Court of Illinois barred a physician’s expert testimony, holding that physicians cannot testify regarding (1) the standard of care for nursing procedures or (2) a nurse’s deviation from her standard of care. In doing so, the supreme court reaffirmed Dolan’s licensing requirement. Sullivan, 209 Ill. 2d at 113, 806 N.E.2d at 654. The supreme court in Sullivan also discussed some cases since Dolan, specifically focusing on Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986).

In Purtill, an expert physician’s affidavit stated that the treating physician deviated from his standard of care by failing to diagnose and treat the plaintiffs medical condition. Purtill, 111 Ill. 2d at 238, 489 N.E.2d at 870. The trial court granted the physician’s motion (1) to strike the expert’s affidavit and (2) for summary judgment, finding that the expert had failed to demonstrate he was familiar with the standard of care in the treating physician’s geographical location or similar location. Purtill, 111 Ill. 2d at 238-39, 489 N.E.2d at 870-71. Because the expert demonstrated that he was familiar with the minimum standards and that the standards were uniform throughout the country, the supreme court reversed the trial court’s judgment and held that the expert physician was qualified to testify to the physician’s standard of care. Purtill, 111 Ill. 2d at 250-51, 489 N.E.2d at 876-77. In so holding, the supreme court in Purtill clarified the test of an expert physician’s qualifications to testify about a health-care professional’s standard of care.

Specifically, the supreme court in Sullivan stated:

“ ‘In PurtillV, 111 Ill. 2d at 243, 489 N.E.2d at 872-73], this court articulated the requirements necessary to demonstrate an expert physician’s qualifications and competency to testify. First, the physician must be a licensed member of the school of medicine about which he proposes to testify. [Citation.] Second, “the expert witness must show that he is familiar with the methods, procedures, and treatments ordinarily observed by other physicians, in either the defendant physician’s community or a similar community.” [Citation.] Once the foundational requirements have been met, the trial court has the discretion to determine whether a physician is qualified and competent to state his opinion as an expert regarding the standard of care. [Citation.]’ ” Sullivan, 209 Ill. 2d at 112-13, 806 N.E.2d at 654, quoting Jones v. O’Young, 154 Ill. 2d 39, 43, 607 N.E.2d 224, 225 (1992).

Thus, if the expert physician fails to satisfy either foundational requirement, he is not qualified to testify as an expert. Sullivan, 209 Ill. 2d at 113, 806 N.E.2d at 654.

As explained in Dolan, the rationale for the supreme court’s prohibition regarding a physician’s testimony pertaining to another health-care professional’s standard of care stems from the court’s concern that fairness requires the practitioner of a particular school of medicine to have his conduct tested by the standards of his school. Dolan, 77 Ill. 2d at 283, 396 N.E.2d at 16. Thus, when a physician does not have the requisite training or experience in the school of medicine about which she proposes to testify as an expert, the trier of fact should not hear that testimony. In other words, even though they are all physicians, orthopedic surgeons are not qualified to testify regarding the standard of care (and any alleged breach thereof) applicable to pediatricians; nor are radiologists qualified to testify regarding those subjects applicable to dermatologists; and so on. See Garley, 351 Ill. App. 3d at 409, 813 N.E.2d at 1040 (physicians were not qualified to testify to (1) the nurses’ standard of care or (2) whether the nursing staff deviated from their standard of care); Alm v. Loyola University Medical Center, 373 Ill. App. 3d 1, 6, 866 N.E.2d 1243, 1248 (2007) (pathologist was not familiar with the methods, procedures, and treatments ordinarily observed by specialists in plastic surgery and anesthesiology to qualify as an expert).

However, the supreme court in Sullivan noted Wzngo’s limited exception to this licensing requirement. Specifically, the supreme court observed that the case before it was factually more similar to Dolan and its progeny than to Wingo. Sullivan, 209 Ill. 2d at 118-19, 806 N.E.2d at 657. That may explain why the supreme court in Sullivan expressly refused to discuss the merits of Wingo or to overrule it. Sullivan, 209 Ill. 2d at 119, 806 N.E.2d at 657. Indeed, in Petre v. Cardiovascular Consultants, S.C., 373 Ill. App. 3d 929, 942, 871 N.E.2d 780, 792 (2007), the First District reaffirmed that Wingo remained an appropriate precedent to follow. Specifically, the Petre court stated that “Wingo relieves a party of satisfying the licensing prong of the Purtill foundational test when the allegations of negligence concern communications between members of different schools of medicine acting as part of the same team.” Petre, 373 Ill. App. 3d at 941, 871 N.E.2d at 792. However, the party offering the expert testimony still must satisfy Purtill’s second prong by establishing that the negligence allegations were within the expert’s knowledge and expertise. Petre, 373 Ill. App. 3d at 941, 871 N.E.2d at 792.

C. The “Providing-Medical-Care Continuum”

As earlier stated, this case presents the question of whether a physician may be qualified to testify as an expert regarding the standard of care expected of a nurse who was a surgical team member. The pivotal analytical issue in answering this question depends on the nature of the interaction between a physician and a nurse as they provide medical care for the same patient. At one end of the “providing-medical-care continuum” are cases like Sullivan and Garley, which focus separately on the specialized nature of the medical care being provided by the physician or nurse, rather than on the interaction between them, because that interaction is not intrinsically intertwined with the care that they are individually providing.

In the middle of the “providing-medical-care continuum” are cases like Wingo, which recognize that the distinct and specialized procedures that a physician and nurse employ to effectively care for the same patient do not occur absent interactive communication. Thus, Wingo focused on the intrinsically intertwined interaction between a physician and nurse, albeit on the limited and narrow scope of communication, rather than focusing separately on the specialized nature of the medical care being provided by the physician or nurse.

Cases in the middle of the “providing-medical-care continuum” typically involve allegations of negligence — such as a nurse’s failure to communicate to a physician an issue that fell within her standard of care — which, in turn, had a negative impact upon the physician’s ability to effectively treat the same patient. Because such allegations of negligence do not involve testimony concerning another health-care professional’s standard of care or the breach of that care, Dolan’s licensing requirement does not apply. Therefore, a physician may testify as in Wingo, provided that such testimony is within his knowledge and expertise.

Progressing still further along the “providing-medical-care continuum” is a case like the present one, which involves the intrinsically intertwined interaction between a physician and nurse when they are members of the same surgical team. Under this scenario, which is essentially on the opposite end of the “providing-medical-care continuum” from the circumstances in Dolan, the physician and nurse, each responsible for their distinct and specialized responsibilities, interact as a team to substantially contemporaneously care for the same patient. This case is also distinguished from Wingo and the middle of the “providing-medical-care continuum” because Wingo involved only communication between the physician and a nurse rather than the level of interaction required of a physician and nurse on the same surgical team.

D. Priver’s Expert Testimony Regarding the Standard of Care Expected of Surgical Team Members

In medical-malpractice cases, the basic question is who, if anyone, has deviated from his or her standard of care. This case is no different. Slotky and the nurses carried out their respective specialized duties as part of a surgical team to (1) prepare Petryshyn for the C-section, (2) perform the C-section, and (3) conduct the postoperative care. During that time, something happened to Petryshyn that should not have happened — that is, a portion of the IUPC remained in her body after the C-section. Given that error, the parties were entitled to present evidence and argument concerning which, if any, member of the surgical team departed from his or her standard of care.

In this case, Priver was a board-certified physician in obstetrics and gynecology with 33 years of experience who performed an average of 30 to 40 C-sections per year. Thus, he had the requisite expertise and knowledge regarding the responsibilities of the individual surgical team members involved in such procedures. In his evidence deposition, Priver testified, in part, that (1) in preparing a patient for the C-section, the IUPC is normally removed by nurses, (2) the IUPC had not been removed when Petryshyn’s C-section began, (3) a nurse’s postoperative responsibilities include (a) performing a “sponge and instrument count” and (b) inspecting the instruments used during the C-section to ensure they remained intact, and (4) if the nurses had seen that the IUPC was not intact, it would have been within their standard of care to communicate their inspection results to Slotky. Essentially, Priver’s testimony pertains to a physician’s and nurse’s distinct and specialized responsibilities as surgical team members and the intrinsically intertwined interaction between those responsibilities as the physician and nurse care for the same patient.

Under the circumstances in this case, Priver was qualified to testify as an expert that (1) a surgical team physician conducting a C-section relies on communication from nurse team members regarding the patient’s care and (2) the failure to communicate information about the patient was a breach of the nurse’s standard of care.

In its initial pretrial ruling, the trial court characterized Priver’s testimony as follows:

“I think we are dealing with integrally[ ] related obligations within the standard of care according to [Priver] that says it’s the nurse[’]s obligation to do that and I know this because I have been on this team situation for many years, done it many times and it’s the nurse’s obligation to do the count or to inspect the instruments and then communicate accordingly.”

Later, at the hearing on Petryshyn’s motion for a new trial, the court explained its rationale for permitting the jury to hear Priver’s testimony as follows:

“It was apparent to me at that time that the communication protocol was a significant one that [Slotky] ought to be able to produce evidence about, because professionals rely upon other members of the team communicating to them and tied in with the defense theory of this case that it was someone else’s fault, someone else’s duty, someone else’s breach of duty[,] and someone else’s conduct that proximately caused the injuries to [Petryshyn].”

However, the court nonetheless ruled that it should not have admitted Priver’s testimony regarding the nurses’ standard of care and granted Petryshyn’s motion for a new trial. We conclude that the trial court’s characterization of Priver’s testimony and the rationale for its initial ruling was correct and consistent with this court’s analysis.

The rationale underlying Sullivan was not implicated in this case. Accordingly, we conclude that the trial court abused its discretion by granting Petryshyn’s motion for a new trial.

III. CONCLUSION

For the reasons stated, we reverse the trial court’s order granting a new trial.

Reversed.

KNECHT, J., concurs.