dissenting:
The judgment should be reversed and the case remanded for a new trial because of plaintiffs’ violation of both Supreme Court Rule 220(d) and the trial court’s order barring the plaintiffs’ expert, Dr. Cohen, from testifying inconsistently with and going beyond the opinion given in his discovery deposition. In his deposition, Dr. Cohen testified specifically that in his opinion the personnel of the hospital had met the standard of care required in treating the decedent. At trial, however, Dr. Cohen testified on direct examination, over objection, that in his opinion the nurses’ failure to communicate blood loss results to the anesthesiologist would be a deviation from the standard of care required of them.
Prior to discussing the specifics of the Rule 220(d) violation, a brief history of the case is warranted to demonstrate that the majority decision is plainly wrong, lacks fairness and does a disservice to the trial bar. Plaintiffs brought this medical malpractice action against Lutheran General Hospital, a pediatrician, two surgeons and an anesthesiologist. Summary judgments were entered in favor of the two surgeons, Dr. Ronald Masters and Dr. Andrew Bunta. On the day that the case was assigned for trial, the pediatrician, Dr. Alvin Korach, entered into a settlement agreement with the plaintiffs for $50,000. Also, the anesthesiologist, Dr. Michael Ronnett, entered into a settlement agreement with the plaintiffs for $250,000, which was the limit of his insurance policy coverage.
Plaintiffs’ original and first amended complaints against Lutheran General Hospital did not allege a cause of action based on Dr. Ronnett being the agent or apparent agent of Lutheran General Hospital. On the day after the case was assigned for trial, however, the plaintiffs were allowed to file a second amended complaint against Lutheran General Hospital. The second amended complaint pled for the first time a claim against Lutheran General Hospital based on the theory that Dr. Ronnett was “the agent or apparent agent of defendant hospital” and that Lutheran General Hospital was therefore liable for his negligence. The case therefore proceeded to trial on the theory that Dr. Ronnett was the agent or apparent agent of Lutheran General Hospital, and on the originally pled theory that Lutheran General Hospital was negligent in failing to require a preoperative workup of decedent’s physical condition, failing to have an adequate supply of whole blood available in the surgical suite, and in failing to monitor the decedent’s physical condition.
At trial, plaintiffs attempted to establish that the decedent’s death was the result of blood loss and replacing fluids during surgery. Much of the evidence related to the responsibilities of the various members of the surgical team in measuring and monitoring blood loss and determining when fluids should be replaced. Virtually every witness agreed that the anesthesiologist, Dr. Ronnett, was responsible for monitoring blood loss and replacing fluids. In fact, Dr. Ronnett admitted that he alone was responsible for monitoring blood loss during surgery and determining when blood should be replaced. In doing so, according to his own testimony, he made his own estimate of blood loss throughout the course of the surgery and he did not rely on any estimates made by the nurses or other members of the surgical team.
The majority concedes that there was a Rule 220(d) violation at trial when the plaintiffs’ expert, Dr. Cohen, testified that in his opinion the nurses’ failure to communicate blood loss results to the anesthesiologist would be a deviation from the standard of care required of them. The majority has decided, however, that the judgment in favor of the plaintiffs should be affirmed notwithstanding the Rule 220(d) violation. The majority concludes: “Clearly, the jury could have determined from the testimony of Dr. Ronnett and Nurse Mary Gilmore that the nurses had failed to weigh the sponges and had failed to communicate their blood loss estimates to him and that such failure would be a deviation from the standard of care. They could also have concluded that these admissions contributed to Dr. Ronnett’s failure to determine that Laura had lost excessive amounts of blood.” (226 Ill. App. 3d at 242.) Unfortunately, the only thing that is “clear” about the majority’s conclusion is that it is not true.
The majority bases its conclusion on its initial premise that the “anesthesiologist, Dr. Ronnett, testified that to his recollection the nurses neither weighed the sponges nor did they tell him what they estimated the blood loss to be.” (226 Ill. App. 3d at 241.) A reexamination of the whole record, however, manifests that Dr. Ronnett’s testimony meant only that he was not paying attention to what the nurses were doing and that he therefore did not recall whether or not the nurses weighed the sponges or estimated the blood loss to him. The record evinces that Dr. Ronnett’s testimony cannot and should not be taken as a denial of acts by the nurses.
The record establishes that Dr. Ronnett did not see or know what the nurses were doing because it was his practice not to rely on the nurses for information during an operation. Dr. Ronnett testified:
“Q. You’re seeing the blood is coming out?
A. Absolutely.
Q. The color of the blood?
A. Absolutely.
Q. The number of sponges?
A. Absolutely.
Q. How wet they are?
A. Constantly.
Q. What they weigh?
A. Constantly.
Q. You make those choices?
A. That’s correct.
Q. You didn’t rely on anyone but yourself to make those choices?
A. No.
Q. You didn’t rely on the nurses?
A. No.
Q. When you say you don’t recall the nurses writing the numbers on the wall, you weren’t paying any attention to what they were doing, were you?
A. No.
Q. That wasn’t any of your concern?
A. My decision.
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Q. So when you say you didn’t see the nurses making those estimates and writing them on the wall—
A. I don’t recall.
Q. —you weren’t paying any attention to them?
A. Because it’s my decision that I have to make.
Q. You didn’t care what numbers they wrote up there because you were making your own decisions?
A. I have to make it.
Q. When you’re in that operating room and you’re deciding if this patient is losing a significant amount of blood, you make that decision yourself?
A. That’s correct.
Q. You’re not even concerned with what the nurses are doing?
A. No.”
Moreover, the admission in the majority opinion that Dr. Ronnett felt that he “alone had the responsibility of evaluating blood loss, and he did not pay attention to what the nurses were doing” (226 Ill. App. 3d at 242), is in accord with the irrefutable conclusion that Dr. Ron-nett did not see or know what the nurses were doing during the operation. Indeed, even the plaintiffs’ brief belies the majority’s conclusion that the jury could have determined from the testimony of Dr. Ron-nett that the nurses had failed to weigh the sponges and had failed to communicate their blood loss estimates to him. The plaintiffs state in their brief: “Thus, in its overall context, Dr. Ronnett’s statement that he was not aware that the nurses estimated the blood loss at 1100 cc’s must be taken as a confirmation of his lack of recollection that the nurses had anything to communicate, and not as a denial of their communication.” (Emphasis added.)
The testimony of both Debra Wendt and Pamela Lockowitz is also indicative and telling. Nurse Debra Wendt testified as follows:
“Q. Okay. And you said you were keeping track of the sponge weights, is that correct?
A. That’s right.
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Q. Showing you, Mrs. Wendt, what’s been marked as Exhibit 22 for identification, and the page that is opened, what is that page called?
A. That’s our operative report. That nursing — that’s a nurse’s chart during the procedure.
Q. Is that the form that was kept by you during this procedure?
A. Myself and (the other nurse) Gerry Bengtson, yes.
Q. On this form did you indicate what the total estimated blood count by the nurses was?
A. It’s at the bottom of the page. It says ‘Estimated blood loss 1100 cc’s.’
Q. Is that your handwriting?
A. Yes, it is.
Q. Did you tell the anesthesiologist what that was?
A. Yes, I did.
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Q. Now at any time when you’re circulating nurse and you feel that there’s an excessive amount of blood loss, you would bring that to the attention of the anesthesiologist, would you not?
A. Oh, yes.
Q. As a matter of fact, you did that at 12:00, didn’t you? You told (director of Risk Management for Lutheran General Hospital) Miss Lockowitz that, as you have acknowledged that?
A. I did. I told him several times during the case, as we had blood loss, I would announce what our total was and at the end of the case I gave him what our estimated loss was.
Q. And based on what you and Gerry were doing in that operating room when you wrote down 1100 cc’s of blood loss, you thought that was a fairly accurate estimate, didn’t you?
A. Yes, I did.”
Pamela Lockowitz, the director of risk management at Lutheran General Hospital at the time of Laura Uhr’s death, testified as to her knowledge of the circumstances surrounding the death. The duties and responsibilities of the director of risk management include the investigation of any death in the operating room. Following Laura Uhr’s death, Lockowitz interviewed various employees of the hospital in order to get a complete picture of what actually happened in the operating room. Lockowitz testified to the following at trial:
“Q. Now, in your interview with Debbie (nurse Debra Wendt), which is on some page under 5/18/82—
A. Yes, it is.
Q. —and she told you that she was keeping track of the sponge weights.
A. The note says they were keeping track of sponge weights.
Q. Your notes says that — by the way, this is all your handwriting?
A. Yes, it is.
Q. It was made contemporaneously, at the same time the person was giving the statement to you?
A. I don’t recall that. It could have been made afterwards as a summary of what was discussed.
Q. The same day?
A. Yes. It was on the same day.
Q. Okay. And then it goes on to say at 11:00 Debbie relieved Gerry (nurse Gerry Bengston) for lunch at 12:00 o’clock.
A. That’s what it says.
Q. ‘Debbie informed the doctors that the estimated blood loss was approximately 1100 cc’s at 12:00 o’clock.’
A. That’s what the note says.”
The majority’s untenable conclusion is also based on its invalid premise that Nurse Mary Gilmore “established the standard of care relating to the weighing of sponges and the communication of blood loss to the anesthesiologist and testified that the failure to weigh sponges and communicate results would be a deviation from the standard of care.” (226 Ill. App. 3d at 242.) This latter premise is invalid because it wrongfully presupposes that Nurse Gilmore testified that the nurses did not weigh the sponges and did not communicate the blood loss to the anesthesiologist, whereas her testimony is plainly to the contrary. Neither Nurse Gilmore nor anyone else testified that the nurses did not weigh the sponges or failed to communicate the blood loss to the anesthesiologist. Nurse Gilmore testified as follows:
“Q. Were you asked to review the case for the care and treatment provided to Laura Uhr by me?
A. Yes, I was.
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Q. Did I ask you to review the case to determine what the nursing responsibilities were for monitoring blood loss during the course of the surgery?
A. Yes, you did.
Q. Did I send you certain records to review?
A. Yes, you did.
Q. Would you tell us what those were?
A. You sent me the hospital chart of the patient, and the deposition of the nurses who had been in the operating room on that day.
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Q. And the purpose was again to see what the nurses did in monitoring blood loss?
A. Yes, that was it.
Q. From your review of those records, have you determined how they monitor the blood loss?
A. Yes, I did.
Q. Can you tell us how they did that?
A. There is a sponge that’s used in the procedure and the nurses — the sponges come in packages of five. The sponges were weighed at the beginning and as they were used, and they were wet. They then were weighed in groups of five again.
And the dry weight was subtracted from the wet weight, and then as they went along the totals were posted on the tape on the wall, and they also verbalized.
Q. What did you mean by verbalized the totals?
A. Well, I would say that they announced in the room as to the loss, the blood loss.
Q. Did they do that throughout the operation?
A. Throughout the operation. And then at the end of the case, they looked at the suction canisters as to the amount in the canisters and then they also had to subtract the irrigation solution that was used, and they added that amount and the loss that had been recorded from the sponges together.
Q. And that would give you?
A. —to come up with right where the estimated blood loss.
Q. And would they announce the total blood volume loss to the doctors?
A. Right. Yes, they did.
Q. Have you had responsibility as an operating room nurse to make that type of measurement during the course of orthopedic surgery?
A. Yes.
Q. You’re familiar with those types of procedure?
A. Yes, I am.
Q. Is the method of weighing the sponges and recording the losses on the wall, is that an acceptable method of recording the blood loss?
A. Yes, it is.
Q. Is the announcing of it, writing on the wall and announcing it to the doctors, is that the acceptable method of recording blood losses by the nurses?
A. Yes, it is.
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Q. Is it your opinion that the recordings of the blood loss during the surgery is an acceptable standard of care for orthopedic nurses?
A. Yes, it is.
Q. Did the nurses have any responsibility to determine whether any blood loss is significant?
A. No, they do not.
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Q. Do you have an opinion as to whether the standard of care required the nurses to — did standard of care in 1982 in the Chicagoland community require the nurses to determine the significance of the blood loss sustained by a patient in orthopedic surgery?
A. Well, in my opinion it isn’t there — it is not the nurses’ responsibility to do that.
Q. Do you have an opinion as to whether the nurses have any responsibility under the standard of care required of them in the Chicagoland community in 1982 to make a determination as to when blood loss should be replaced dining orthopedic surgery?
A. And again I say that in my opinion it is not the nurses’ responsibility to make that determination.”
It is therefore obvious that the record does not support the majority’s conclusion that the jury could have determined from the testimony of Dr. Ronnett and Nurse Gilmore that the nurses failed to weigh the sponges and failed to communicate their blood loss estimates to him. A fortiori, it is plain that the record does not support the majority’s Procrustean statement that “there is ample evidence in the record from the testimony of Dr. Ronnett and Nurse Gilmore to establish such liability.” 226 Ill. App. 3d at 243.
Another point that bears revealment is how and why the Rule 220(d) violation occurred. Dr. Cohen was the plaintiffs’ only expert witness to testify at trial. His discovery deposition was taken V-k years before trial, and plaintiffs did not supplement their Rule 220 interrogatory answers or give notice of any changes or additions to Dr. Cohen’s opinions regarding the case.
When Dr. Cohen’s deposition was taken, he did not testify that Lutheran General personnel violated any standard of care in this case. In fact, Dr. Cohen affirmatively testified that in his opinion Lutheran General Hospital’s personnel met the standard of care in the case. Dr. Cohen testified at his deposition:
“Q. Doctor, with respect to the operation of May 14, 1982, have you developed any opinions regarding the propriety of the care and treatment rendered to Laura Uhr?
A. Yes.
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Q. Do you have any opinions regarding the services rendered by Lutheran General Hospital?
A. Not really.
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Q. Doctor, my name is Kevin Burke, I represent Lutheran General Hospital. I think I understood you the first time. As I understand it, you have no opinions that the personnel of Lutheran General Hospital violated the standard of care in this case?
A. Not to my knowledge.
Q. Is it your opinion that they met the standard of care then?
A. Yes.”
As a result of the deposition testimony of Dr. Cohen IV2 years prior to trial, Lutheran General Hospital filed a motion in limine requesting that Dr. Cohen, who was to be the plaintiffs’ only expert witness to testify at trial, be prohibited from offering new opinions at trial that would be inconsistent with his deposition testimony. The motion in limine was based on Supreme Court Rule 220(d). The trial court granted Lutheran General Hospital’s motion and entered an order which provided that Dr. Cohen could not testify inconsistently with opinions expressed in his deposition.
When Dr. Cohen was called by the plaintiffs to testify at trial, however, he testified on direct examination that in his opinion Lutheran General Hospital’s nurses deviated from the standard of care as required in the operating room in failing to communicate blood loss results to the anesthesiologist, Dr. Ronnett. When defense counsel objected on the basis that Rule 220(d) and the trial court’s order were being violated, plaintiffs’ counsel told the trial court that Dr. Cohen’s trial court opinion was based on facts that had been testified to by Dr. Ronnett for the first time at trial and were therefore not known by Dr. Cohen when his deposition was taken. The trial court overruled defense counsel’s objection on the basis of what was represented by plaintiffs’ counsel.
The record is clear, however, that plaintiffs’ counsel was either mistaken or misrepresented the facts to the trial court. The facts are that Dr. Ronnett’s discovery deposition had been taken and a transcript of Dr. Ronnett’s deposition had been given to Dr. Cohen for review before Dr. Cohen gave his discovery deposition. Dr. Ronnett’s testimony at his discovery deposition was the same as his trial testimony. Thus, there has been a flagrant violation of Rule 220(d) relating to Dr. Cohen’s opinion testimony at trial.
In its opinion, the majority states: “The record seems clear that Dr. Cohen was permitted to testify in contradiction to his deposition testimony.” (226 Ill. App. 3d at 243.) The majority also states that “the trial court has committed a serious error in failing to bar the testimony of plaintiffs’ expert with regard to the negligence of the nurses.” (226 Ill. App. 3d at 252.) Yet, the majority disregards the flagrant Rule 220(d) violation on the untenable assumption that there was ample evidence in the record to establish that the nurses were negligent. The majority is wrong on several bases.
First, the record demonstrates that the “ample” evidence referred to by the majority is a judicial illusion. Second, since Rule 220(d) was adopted by the supreme court, it must be enforced as it is written and not as interpreted on an ad hoc basis by inferior courts. Thus, Rule 220(d) means what it says and nothing less. It says:
“(d) Scope of testimony. To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions, or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” (Emphasis added.) 107 Ill. 2d R. 220(d).
In the present case, the direct testimony of plaintiffs’ expert at trial was inconsistent with and went beyond the fair scope of the facts known or opinions discussed in discovery proceedings. It follows that inherent in the verdict in favor of the plaintiffs is a violation of Rule 220(d). The judgment on the verdict should therefore be reversed. Allowing the judgment to stand undermines the raison d’etre of Supreme Court Rule 220(d).
The day has come when many if not most major cases are decided solely on the basis of the opinions of expert witnesses. The trial bar must therefore be assured that opinions given by expert witnesses in discovery depositions will not be altered, amplified or changed at trial. If the trial bar heretofore had that assurance because of Rule 220(d), the assurance has been destroyed by the majority’s decision in this case. The majority has eviscerated Rule 220(d).
In addition, the record demonstrates that the Rule 220(d) violation in this case was flagrant and surely affected the trial strategy of the defendant and the fairness of the trial. At trial the defendant had a right to rely on plaintiffs’ expert’s pretrial deposition opinion. Instead — ^“Surprise!’’—the plaintiffs’ expert changed his opinion. The unfairness to the defendant is patent. It follows that the defendant did not receive a fair trial and that it is unfair to affirm the judgment in this case.
One other matter in the majority opinion warrants discussion here. The majority states: “Although we have acknowledged that part of Dr. Cohen’s testimony violated Rule 220, there was a plethora of evidence which demonstrated defendant’s liability on the other theories of negligence which were submitted to the jury.” (226 Ill. App. 3d at 245.) The majority then quotes section 2 — 1201(d) (Ill. Rev. Stat. 1985, ch. 110, par. 2—1201(d)) and states: “A general verdict, therefore, can be sustained on any of several bases of liability and will not be reversed by the impairment of one of the theories.” (226 Ill. App. 3d at 246.) The majority’s statements and reliance upon section 2— 1201(d) to affirm the judgment notwithstanding the Rule 220(d) violation constitute a misapprehension of section 2 — 1201(d). Plainly, section 2 — 1201(d) does not apply to a Rule 220(d) violation.
Section 2 — 1201(d) provides:
“Return of verdict — Separate counts — Defective or unproved counts
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(d) If several grounds of recovery are pleaded in support of the same claim, whether in the same or different counts, an entire verdict rendered for that claim shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.” Ill. Rev. Stat. 1989, ch. 110, par. 2—1201(d).
As is readily apparent, section 2 — 1201(d) applies only to two situations after the return of a verdict. It applies to (1) grounds defectively pled or (2) grounds that are well pled but there is insufficient evidence to sustain a recovery. (See Ill. Ann. Stat., ch. 110, par. 2—1201(d), Joint Committee Comments, at 5 (Smith-Hurd 1983).) Neither of these two situations has any application to a Rule 220(d) violation. Thus, the majority’s statements and reliance upon section 2 — 1201(d) to affirm the judgment notwithstanding the Rule 220(d) violation is a clear misapplication of the law.
I do not discuss the other issues that are discussed by the majority simply because I do not believe it is necessary to decide the other issues. The majority opinion, however, behooves me to make a brief comment on whether the liability of Lutheran General Hospital should depend on whether there was an apparent or ostensible agency relationship between it and Dr. Ronnett, and whether the doctrine of estoppel with its reliance requirement should be decisive.
In my opinion, if it is established that a doctor negligently treated a hospital’s patient on the premises of the hospital, the hospital should be liable for the injury or death of the hospital’s patient if the injury or death was a proximate cause of the doctor’s negligence and the doctor was authorized by the hospital to treat the hospital’s patient. The vagaries of apparent or ostensible agency or estoppel should not be issues.
The critical factor for holding a hospital liable for the negligence of a doctor who injures or causes the death of a patient at a hospital is the fact that the injured person is the hospital’s patient. The outmoded conception that a hospital does not undertake to treat the patient no longer reflects reality. Plainly, hospitals do far more than merely furnish an edifice for treatment. Rather, they are at the central point of the compass around which their patients receive medical care and treatment by doctors functioning on their premises. Moreover, the cost and expenses for the space, equipment, supplies and utilities used by doctors for and on the hospital’s patients are factored into the amount that patients are charged by the hospital. It follows that a patient at a hospital is indeed the hospital’s patient, and that the hospital is responsible for the negligence of a doctor who performs medical services on the hospital’s patient on the premises of the hospital.
I have read the cases discussed by the majority including those from Illinois and other jurisdictions. As to the Illinois cases, they are inconsistent and somewhat confusing, and hardly enlightening. As to the cases from other jurisdictions, I do not believe that Illinois needs to walk in the shadow of other jurisdictions, but rather, I believe that Illinois should adumbrate the path of American jurisprudence. Illinois can take a step in that direction, in my opinion, if it pushes the law up to the level of reality when it comes to determining whether a hospital should be liable for a doctor’s negligence that is a proximate cause of the death or injury to the hospital’s patient.
In the case sub judice for the reasons that I have previously stated, I do not believe that it is necessary to decide the issue of whether Lutheran General Hospital is liable for the negligence of Dr. Ronnett. The judgment should be reversed and the case remanded for a new trial because of plaintiffs’ violation of both Supreme Court Rule 220(d) and the trial court’s order barring the plaintiffs’ expert, Dr. Cohen, from testifying inconsistently with and going beyond the opinion given in his discovery deposition. Accordingly, I would reverse the judgment and remand the case for a new trial for the reasons that I have stated.