dissenting:
Plaintiff suffered from reflux esophagitis, which means that his esophagus was inflamed as a result of material backing up from his stomach. This gave him heartburn, so he went to St. John’s for corrective surgery. He had the surgery, but nothing was corrected. Not only did the procedure fail to eliminate plaintiff’s symptoms, it left him with the additional distress of vomiting and chest pains.
Plaintiff quickly realized that something was wrong, but his persistent complaints went unheeded. His surgeon merely attributed the chest pains to normal postoperative soreness. What both the surgeon and the hospital failed to recognize was that plaintiff’s stomach was no longer where it was supposed to be. As a result of the surgery, it had moved up into his chest cavity and become trapped, compromising the function of his left lung and making it impossible for him to breathe or eat normally.
Plaintiff entered St. John’s essentially fit, if uncomfortable. After nine days there, he was left in a condition which, if uncorrected, would have resulted in his death. There was nothing subtle about these complications. Had the requisite follow-up been made, the source of the difficulty would have been readily discoverable and correctable. Yet, the hospital did nothing. When the surgeon authorized plaintiff’s discharge, the hospital dutifully showed him to the door. As plaintiff was leaving, the discharge nurse did listen to his chest and discovered that something was, indeed, wrong. Yet, she took no remedial action. Her only advice was for plaintiff to see his own doctor when he returned home.
We have recently reiterated that a hospital owes a duty, independent of any relationship between physician and patient, to review and supervise the medical care administered to a patient. (Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, 518-20.) The violation of that duty here is manifest. As one of plaintiff’s experts stated, if the nurse was concerned enough to advise plaintiff to consult his personal physician after discharge, she should have conveyed her concern to his personal physician or, at a minimum, to her immediate nursing supervisor, and she should have recorded her findings in plaintiff’s medical records. This was more than common sense. It was proper medical protocol. Yet, none of it was done.
The majority nevertheless concludes that the hospital should be shielded from liability as a matter of law because the nurse’s error did not proximately cause the injury plaintiff sustained as the result of the delay in the correct diagnosis of his condition. I disagree. The issue of whether a defendant’s conduct was a proximate cause of the plaintiff’s injury is ordinarily a question for the jury. (Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 130.) It can be decided as a matter of law on a motion for summary judgment only when the facts are undisputed and are such that there can be no difference in the judgment of reasonable persons as to the inferences to be drawn from them. (Benner v. Bell (1992), 236 Ill. App. 3d 761, 766.) This is not such a case.
The reason hospitals require their nurses to record and report pathological findings about a patient is so that appropriate follow-up measures can be taken to aid the patient. By acting as she did here, the nurse eliminated the possibility that any such follow-up measures would be provided. Plaintiff was simply abandoned to fend for himself.
The majority attempts to discount the resulting harm by theorizing that any further attempt to bring attention to plaintiff’s condition would have been unavailing because the surgeon, who had primary responsibility for plaintiff’s care, had previously been inattentive to his complaints. I note, however, that until the discharge nurse’s examination, no other health care professional had corroborated plaintiff’s concerns about his condition. Had her findings been noted in the record and related to the surgeon, they may well have provided the impetus the surgeon needed to conduct a thorough examination and to reevaluate his diagnosis. Even if the surgeon had no particular respect for the nurse’s opinions, enlightened self-interest would have dictated that he be more guarded against the possibility of a bad outcome. After all, it is one thing for a doctor to have to explain why he chose to disregard a patient’s subjective complaints. It is considerably more difficult for him to justify having ignoring documented medical complications, especially where, as here, the doctor has previously opted not to examine the patient personally. Under these circumstances, it cannot be said that there was no triable issue of fact or that the right of the hospital was clear and free from doubt. Summary judgment in favor of the hospital was therefore improper (see Pyne v. Witmer (1989), 129 Ill. 2d 351, 358) and should be reversed.
The judgment of the circuit court should also be reversed to the extent that it held plaintiff contributorily negligent for having refused Dr. Aquino’s suggestion to return to St. John’s following his discharge. In order to prove contributory negligence, a defendant must show that the plaintiff failed to exercise that degree of care which a reasonably prudent person would have used for his or her own safety under like circumstances. (See Johnson v. Abbott Laboratories, Inc. (1992), 238 Ill. App. 3d 898, 907.) No such showing was made here.
By any fair standard, plaintiff’s experience at St. John’s was horrendous. He came because he was told he needed specialized medical treatment, but, as I have just discussed, the surgery only made his condition worse. Much worse. His subsequent complaints were ignored, and, in the end, he was abandoned by his care givers, even though the discharge nurse knew that he was still in need of medical attention. When one adds to this experience the fact that Dr. Aquino, himself, was guilty of further mismanaging plaintiff’s care, as the jury found, it was scarcely imprudent for plaintiff to reject Aquino’s recommendation that he go back to St. John’s for followup care. To the contrary, plaintiff’s refusal to return there was probably the first sensible decision made by anyone in this case.
My final point of disagreement with the majority concerns the trial court’s refusal to allow the jury to consider plaintiff’s exhibits 1 and 6 and the testimony of Gregory Weller. Exhibit 1 was the $19,625.98 bill incurred by plaintiff at Memorial Hospital, where plaintiff’s complications were finally diagnosed and surgically corrected, and exhibit 6 was the $2,550 fee charged by the surgeon who actually performed the procedure. This evidence was relevant to establish plaintiff’s damages on his claim that because of Dr. Aquino’s delay in properly diagnosing the complications plaintiff experienced as a result of his treatment at St. John’s, the corrective surgery performed at Memorial was more complex than would otherwise have been necessary.
There is no dispute that plaintiff had proper medical testimony to support this theory of recovery. According to the surgeon from Memorial, earlier diagnosis of the condition would have enabled plaintiff to obtain relief through quick, repeat abdominal surgery and a four- or five-day hospital stay, instead of the open chest surgery and 23-day hospital stay that was ultimately necessary. The difference between what plaintiff ended up having to pay for this more elaborate second surgery and the lesser amount he would have incurred in the absence of the malpractice is a cognizable element of plaintiff’s damage claim against Aquino. The evidence in dispute here wás simply the means by which plaintiff hoped to quantify this loss for the jury. Exhibits 1 and 6 would have established the actual cost of the second surgery, while the testimony of Weller, who served as vice-president of finance at Memorial, would have shown the average cost of the simpler surgery that would have sufficed but for the intervening complications occasioned by Aquino’s negligence.
The majority correctly observes that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. (See, e.g., City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 186.) It never articulates, however, how this evidence could have been prejudicial or confusing or misleading to the jury on the question of how much of the plaintiff’s additional medical costs were attributable to Aquino’s misdiagnosis. To avoid overstating the amount of the costs chargeable to Aquino, the jury would have had to do no more than subtract Weller’s estimates from the totals on exhibits 1 and 6.
The majority also attempts to justify its result by invoking the principle that “[i]n proving damages, the burden is on the plaintiff to establish a reasonable basis for computing damages.” (157 Ill. 2d at 313.) While I am in full agreement with this rule of law, it has no application here. The rule is addressed to the sufficiency of the evidence necessary to support a jury’s verdict. Before us is the quite different question of whether the evidence is admissible in the first instance. If there were deficiencies in how plaintiff sought to calculate his damages, Aquino could have brought this out in his arguments to the jury or in a challenge to the jury’s verdict on appeal. They were not grounds to bar the evidence outright. Accordingly, I would hold that it was a clear abuse of discretion for the circuit court to have excluded exhibits 1 and 6 and the testimony of Weller. As to defendant Aquino, I would therefore reverse and remand for a new trial as to damages only.
In view of this holding, I would not reach the additional question of whether the jury’s present damage award is inadequate. I would, however, also reverse and remand for a new trial as to plaintiff’s claims against Dr. Foster. As the majority has correctly held, the trial court erred in limiting the testimony of Dr. McAfee, the expert called by plaintiff to establish Foster’s deviations from the standard of care for radiologists. Because the setoff to which Foster was entitled by virtue of plaintiff’s settlement with two other physicians exceeded the amount of the jury’s verdict, after the verdict was reduced by plaintiff’s contributory negligence, the majority found that this error did not prejudice the ultimate result and therefore did not warrant reversal for a new trial. In light of my conclusions that plaintiff should not have been found contributorily negligent and that he is entitled to a new trial as to damages, this finding of no prejudice cannot be sustained, and a new trial should be ordered.
JUSTICE McMORROW joins in this dissent.