dissenting:
I respectfully dissent and would affirm the decision of the trial court.
On March 4, 1999, Plaintiff Petryshyn went into labor and was admitted to St. Joseph Medical Center under the care of defendant Dr. Slotky. As a part of Petryshyn’s care during labor, Dr. Slotky inserted an IUPC into her uterus. Thereafter the decision was made to perform a nonemergency C-section, during which the IUPC was cut, leaving an approximately 11.3-centimeter portion of the IUPC in Petryshyn’s uterus. Petryshyn continued to experience pain until the IUPC was discovered and removed by Dr. Vincente Colon in August 2000. In 2004, Petryshyn filed this lawsuit against Dr. Slotky and St. Joseph Medical Center, which employed the nurses. Shortly before the trial began, in March 2007, St. Joseph Medical Center settled and was dismissed from the lawsuit.
The evidence deposition of Petryshyn’s expert, Dr. Priver, was taken in February 2007, before St. Joseph settled out. Dr. Priver opined that (1) the IUPC was cut by Dr. Slotky as he performed the C-section, (2) the remaining portion would have been discovered if Slotky had manually examined Petryshyn’s uterus, and (3) Slotky violated the physician’s standard of care by failing to properly check the uterus before closing the C-section incision. Dr. Priver also opined that the nurses violated their standard of care by not inspecting the IUPC to ensure that it was intact before discarding it. At trial, as the nurses were no longer part of the case, Petryshyn chose not to introduce the portion of Priver’s deposition testimony that the nurses violated their standard of care. However, upon Slotky’s request, the trial court required the testimony to be admitted.
In closing argument, defense counsel misrepresented Priver’s testimony to say the nurses violated their standard of care by not removing the catheter before the C-section and by not telling Dr. Slotky about it. After seeing how Driver’s testimony was used during trial, the trial court decided the testimony should not have been admitted and ordered a new trial. The trial court believed the jury would have ruled differently if the evidence had not been admitted: “I can relate back to my recollection at the time of closing argument as to how strong an argument was made by [defense counsel] when he pointedly took the nurses to task, took the demeanor of one of the nursing witnesses to be almost tantamount to a confession.” “I have to believe that based upon those recollections, that that argument had its intended effect.” Defense counsel had argued:
“Is it appropriate? Is it appropriate for the jury to hold Dr. Slotky responsible because [nurse] Marla Newman didn’t do her job? All I could think of when I was listening to Dr. Driver’s testimony was how much he talked about the nurses. How the nurses failed. I wrote these things down. Almost every time, the nurses take out the IUDC. This is plaintiff’s expert, ladies and gentlemen. This isn’t the defense expert.”
How was it even relevant whether the nurses were negligent? The question was whether Dr. Slotky was negligent. More than one person may be to blame for causing an injury. If Dr. Slotky was negligent and his negligence was a proximate cause of the injury to plaintiff, it is not a defense that the nurses may also have been to blame. Illinois Dattern Jury Instructions, Civil, No. 12.04 (3d ed. 1989) (hereinafter IDI Civil 3d No. 12.04). A defendant is not allowed to divert the jury’s attention from his negligence by dirtying up an absent defendant.
Slotky asked the trial court to give the second paragraph of IDI Civil 3d No. 12.04, that the jury should rule for the defendant if it decides “that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant.” (Emphasis added.) That instruction, however, should be used only where there is evidence to show that the sole proximate cause of the occurrence was the conduct of a third person. IDI Civil 3d No. 12.04, Notes on Use, at 12 — 9. Where the defendant never argued or presented evidence that “only” the negligence of persons other than the defendant proximately caused the plaintiff’s injury, the sole-proximate-cause instruction is properly refused. McDonnell v. McPartlin, 192 Ill. 2d 505, 522, 736 N.E.2d 1074, 1085 (2000). A sole-proximate-cause instruction is not appropriate unless there is evidence that the sole proximate cause (not a proximate cause) of a plaintiff’s injury is the conduct of another person or condition. Holton v. Memorial Hospital, 176 Ill. 2d 95, 134, 679 N.E.2d 1202, 1219 (1997).
The Supreme Court of Illinois held that a sole-proximate-cause instruction was properly given in Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101, 658 N.E.2d 450, 459 (1995), but that was a case where two physicians disagreed over how to proceed. The treating physician had countermanded the resident’s order to test blood gases. The resident was required to follow the treating physician’s orders, and the treating physician was accordingly alleged to have been the sole proximate cause of the injury. Either the treating physician was the proximate cause or the resident was the proximate cause, but not both. Leonardi, 168 Ill. 2d at 97, 658 N.E.2d at 457. Leonardi is nothing like the present case, where there was no disagreement, where the operating surgeon simply complained that his subordinates failed to discover his mistake. Evidence that the nurses were negligent does not mean that Dr. Slotky was not negligent. Even if the nurses were negligent, the injury would not have occurred if Dr. Slotky had properly checked the uterus before closing the C-section incision. Leonardi involved a situation where the physician giving orders was argued to be the sole proximate cause. The present case involves the converse, where the physician giving orders argues his subordinates are the sole proximate cause. A doctor may be held liable for the negligence of a hospital employee who is subject to the doctor’s control or supervision. Foster v. Englewood Hospital Ass’n, 19 Ill. App. 3d 1055, 1061, 313 N.E.2d 255, 260 (1974) (captain of the ship).
Dr. Slotky argues that Petryshyn is estopped from denying testimony which Petryshyn elicited at Dr. Priver’s evidence deposition. A party taking an evidence deposition, however, may choose to use only a part of that deposition or not use the deposition at all. “If only a part of a deposition is read or used at the trial by a party, any other party may at that time read or use or require him to read any other part of the deposition which ought in fairness to be considered in connection with the part read or used.” 210 Ill. 2d R. 212(c). The issue here, however, is not one of fairness or completeness, but whether Dr. Slotky may use an unconnected portion of an evidence deposition which Petryshyn chose not to use.
The Adams case, cited by the majority, actually refused to allow the party not taking the deposition to use a portion of the deposition that was not “connected” to the part of the deposition that was admitted, because it involved cross-examination beyond the scope of plaintiff’s direct. Adams, 369 Ill. App. 3d at 1002, 874 N.E.2d at 112. “Defendants apparently chose not to depose Dr. Strasberg directly.” Adams, 369 Ill. App. 3d at 1002, 874 N.E.2d at 112. There is a similar concern in the present case. There may have been no problem if Dr. Slotky wanted to take Dr. Priver’s testimony and introduce it. It was unfair, however, to force Petryshyn to introduce Dr. Priver’s testimony and for Dr. Slotky then to argue, “This is the plaintiffs expert, ladies and gentlemen. This isn’t the defense expert. This is plaintiff’s expert.” Dr. Priver’s testimony on nursing standards of care was elicited when the nurses were part of the lawsuit and was not part of plaintiffs testimony against Dr. Slotky. There was no reason for Petryshyn to introduce it after St. Joseph Medical Center settled out. It was Dr. Slotky who chose to present the testimony in a strategy to blame the nurses.
A physician who is not a licensed nurse cannot testify as to nursing standards of care. Sullivan, 209 Ill. 2d at 112-13, 806 N.E.2d at 654. Wingo involved a situation where a nurse observed the patient leaking fluid, but she failed to communicate this to the doctor. Perhaps 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, but the Wingo exception should not be allowed to swallow up the rule that the expert must be a licensed member of the school of medicine about which he proposes to testify. Every time a nurse violates her standard of care she should communicate that to the attending physician, but that does not mean that physicians may testify about every violation of the standard of care by a nurse. In this case, Dr. Priver testified to a specific nursing violation of the standard of care: the nurses did not inspect the IUPC to ensure that it was intact before discarding it. If that duty did not exist, there was no duty to communicate.
The trial judge observes the witnesses and is in a better position to determine whether a jury verdict is against the manifest weight of the evidence than is the reviewing court. Maple v. Gustafson, 151 Ill. 2d 445, 455-56, 603 N.E.2d 508, 513 (1992). A trial court’s grant of a new trial accordingly will not be disturbed absent an abuse of discretion. Smith, 339 Ill. App. 3d at 74, 790 N.E.2d at 83. “ ‘[T]he question is not whether the appellate court agrees with the [trial] court, but whether the [trial] court acted arbitrarily, without employing conscientious judgment ***.’ ” Long, 336 Ill. App. 3d at 600-01, 783 N.E.2d at 1080, quoting State Farm Fire & Casualty Co., 314 Ill. App. 3d at 1083, 732 N.E.2d at 1096. How can we say that a trial court acted arbitrarily, without employing conscientious judgment, when it grants plaintiff a new trial in a medical-malpractice case where an object was left in plaintiffs body following surgery? Rather than being an abuse of discretion, this seems to be res ipsa loquitor.