No. 2--01--0518

__________________________________________________________________

	IN THE 

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

__________________________________________________________________

JUANITA SULLIVAN, Indiv.			) 	Appeal from the Circuit

and as Special Adm'r 			)	Court of Du Page County

of the Estate of Burns 			)

Sullivan, Deceased,				)		

							)	

	Plaintiff-Appellant,		)

							)

v.							)   	No. 98--L--1145		

							)

EDWARD HOSPITAL and AMELIA		)	

CONTE-RUSSIAN, 				)	The Honorable

							)	Robert K. Kilander,

	Defendants-Appellees.		)	Judge, Presiding.

__________________________________________________________________

	JUSTICE BOWMAN delivered the opinion of the court:

	On November 6, 1998, Burns Sullivan (now deceased) and his

wife, Juanita Sullivan, filed a medical malpractice action against

Dr. Amelia Conte-Russian and Edward Hospital.  The complaint sought

damages for a fall Burns Sullivan (Burns) experienced while

residing as a patient at Edward Hospital.  Plaintiff asserted that

Dr. Conte-Russian and Edward Hospital, through the actions of nurse

Carrie Lewis, were negligent in the care and treatment of Burns. 

Plaintiff also filed a second count claiming Juanita Sullivan

suffered loss of consortium as a result of defendants' negligent

treatment.  

	At trial, the court entered a directed verdict for defendant

Edward Hospital after plaintiff's only medical expert was ruled

incompetent to testify as to the standard of care for the nursing profession.  Thereafter, the court entered judgment on a jury

verdict in favor of Dr. Conte-Russian.  

	Plaintiff subsequently appealed both the directed verdict for

Edward Hospital and the jury verdict in favor of Dr. Conte-Russian. 

Plaintiff raises three issues on appeal, asserting that (1) the

trial court erred by ruling plaintiff's expert physician witness

incompetent to provide standard-of-care testimony regarding the

nursing profession, (2) the trial court erred by giving the jury

the long-form version of Illinois Pattern Jury Instruction 12.05

(Illinois Pattern Jury Instructions, Civil, No. 12.05 (2000)) on

proximate cause, and (3) the jury verdict was against the manifest

weight of the evidence.

BaAcCkKgGrRoOuUnNdD

	The following evidence was revealed at trial.  Dr. Conte- Russian had been the regular treating physician for Burns since

1995 when he suffered a stroke.  On November 1, 1997, Burns was

admitted to Edward Hospital for treatment of a urinary tract

infection.  While at Edward Hospital, Dr. Conte-Russian acted as

the primary treating physician.  Burns's prior history of strokes

had left him in a deteriorated physical condition.  He could not

speak, but he could understand others and respond with physical

gestures.  Burns's 1995 stroke also resulted in paralysis to his

right side and impaired his ability to walk unassisted.  

	On the evening of November 2, 1997, nurse Carrie Lewis was on

duty and acting as Burns's primary nurse.  The entire evening Burns

had been in his bed.  However, on three separate occasions between

7 p.m. and 9:30 p.m., Nurse Lewis found Burns attempting to get out of the bed.  After each of the first two instances, nurse Lewis

found Burns to be aware and able to understand her instructions to

stay in bed.  After the third occurrence, nurse Lewis became

concerned about Burns's failure to follow instructions and that he

now appeared to be agitated.  Concerned about Burns's behavior and

wanting to take further measures because Burns was considered a

fall risk, nurse Lewis phoned Dr. Conte-Russian at 9:30 p.m. and

asked the doctor to order a posey vest to restrain Burns to his

bed.  A posey vest is used to restrain a patient by placing the

vest on the patient and then tying the vest straps to the bed.

	Dr. Conte-Russian then advised nurse Lewis that a posey vest

might result in Burns becoming even more agitated.  Instead, the

doctor decided to administer the drug Ativan to calm Burns down and

help him sleep.  

	The Ativan, which was administered by nurse Lewis at 10 p.m.,

was expected to last for a period of at least two hours.  Between

10 p.m. and 12 a.m., nurse Lewis and the nurse's aide checked on

Burns approximately every half-hour.  At about 12:10 a.m., nurse

Lewis found Burns lying on the floor of his hospital room with a

pool of blood around his head.  Apparently, Burns had attempted to

get up from his bed and walk.  In his condition, he fell and struck

his head on the hospital room floor.  As a result of the fall, he

suffered a subdural hematoma and was subsequently transferred to

Northwestern Memorial Hospital.

     At trial, the plaintiff attempted to establish the liability of Edward Hospital vicariously through the actions of nurse Lewis. 

Plaintiff called Dr. William Barnhart to testify as her medical expert.  Dr. Barnhart is a board-certified physician specializing

in internal medicine and has substantial experience in working with

doctors and nurses in patient fall protection.  Plaintiff intended

for Dr. Barnhart to testify to the applicable standards of care for

physicians and nurses and the subsequent failure of both Dr. Conte-

Russian and nurse Lewis to meet their respective standards of care. 

	Dr. Barnhart testified to the standard of care for a licensed

nurse and the instances in which nurse Lewis deviated from the

standard of care.  Those instances included nurse Lewis's failure

to properly communicate Burns's condition to Dr. Conte-Russian

during their phone conversation and her failure to adhere to proper

nursing procedures in the care and treatment of a patient.  The

court struck the testimony relating to nurse Lewis's communications

with Dr. Conte-Russian as a violation of Supreme Court Rule 213(g)

(177 Ill. 2d R. 213(g)) because Dr. Barnhart's opinions on this

issue were not properly disclosed during pretrial discovery.  The

court then struck the rest of Dr. Barnhart's testimony relating to

the nursing standard of care and nurse Lewis's deviations on the

grounds that a physician is incompetent to testify to the standard of care placed upon a licensed nurse.

AnNaAlLyYsSiIsS

I. The Competency of Plaintiff's Physician Expert  

	Medical malpractice suits require that the plaintiff establish

the standard of care through the testimony of a medical expert. 

Dolan v. Galluzzo, 77 Ill. 2d 279, 281 (1979).  We review de novo the issue of a physician’s competency to testify to the standard of care for a nurse.  In re Estate of Rennick, 181 Ill. 2d 395, 401 (1998). 

	The general rule in Illinois as originally established by the

Illinois Supreme Court in Dolan states that, in order to testify to the standard of care for a particular school of medicine, the

expert witness must be licensed within that school of medicine.

Dolan, 77 Ill. 2d at 285.  The Dolan court held that an orthopedic surgeon was not competent to testify to the standard of care

applicable to a podiatrist because the podiatrist belonged to a

unique school of medicine of which the surgeon was not a licensed

member.  After recognizing that the legislature had provided

distinct licensing and regulatory schemes, the court stated: 

"We simply are not disposed to provide for what, in effect,

may result in a higher standard of care when the legislature,

by recognizing various schools of medicine, has not done so. 

To do so would not only be unfair to podiatrists (i.e., to allow practitioners of other schools to testify regarding the

standard of care podiatrists owe), but it would also assume

that science and medicine have achieved a universal standard

of treatment of disease or injury. Such is not the case."

Dolan, 77 Ill. 2d at 284.

	Dolan has subsequently been construed to require an expert physician to meet a two-part test to establish the 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.' "  Jones v. O'Young, 154 Ill. 2d 39, 43 (1992), quoting Purtill v. Hess, 111 Ill. 2d 229, 243 (1986).  If the expert physician fails to meet

either of these foundational requirements, the trial court  must

disallow the testimony.  Jones, 154 Ill. 2d at 44.  

	The plaintiff in the case at bar cites Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896 (1997), as an exception to the general rule that a physician must be a licensed member of the

same school of medicine to give testimony as an expert.  The

plaintiff argues that if Wingo is applied to the present facts Dr. Barnhart should be allowed to testify to the standard of care

applicable to nurse Lewis.  

	Wingo involved a situation in which three physicians testified that an obstetrical nurse violated the applicable nursing standard

of care by failing to properly communicate the condition of a

patient to the treating physician.  Wingo, 292 Ill. App. 3d 896.  The physicians opined that the nurse’s deviation from the standard

of care resulted in a baby being born with brain damage.  Wingo, 292 Ill. App. 3d at 903.  

	The court in Wingo found that the rationale presented in Dolan for requiring that an expert physician be a licensed member of the

same school of medicine did not apply.  Wingo, 292 Ill. App. 3d at 906.  The court determined that the supreme court's concerns

regarding the imposition of a higher standard of care and the

assurance that the expert physician possess the requisite expertise

were not being sacrificed because the testimony concerned communications a doctor can expect to rely on from a nurse and not

actual nursing procedures.  The court in Wingo stated as follows:

"In the instant case, the allegations of negligence against

nurse  Welden 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 about which there would be a

different standard between 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

[should be] 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."  Wingo, 292 Ill. App. 3d at 906.    

	In the case at bar, Dr. Barnhart’s testimony included opinions

relating to "what a nurse is required to communicate to a

physician" (Wingo, 292 Ill. App. 3d at 906) and nursing procedures.  Dr. Barnhart testified that all of the following were deviations

from the applicable standard of care for nursing professionals: (1)

nurse Lewis failed to adequately communicate with Dr. Conte-Russian

during their phone conversation; (2) after nurse Lewis failed to

get Dr. Conte-Russian's approval to use a posey vest on Burns, she

should have gone up the nursing chain of command to address her

concerns that Burns would attempt to get out of bed; and (3) nurse Lewis failed to provide for an alternative to the posey vest to

protect against the risk of a fall.  

	The court struck all of Dr. Barnhart's testimony relating to

doctor-nurse communications as a violation of Supreme Court Rule

213(g) because plaintiff failed to disclose these opinions in

pretrial discovery.  

	Plaintiff argues that the court erred in excluding Dr.

Barnhart's doctor-nurse communication opinions because the opinions

were within the fair scope of opinions that were disclosed to the

defendant.  We hold otherwise.  Under Rule 213(g), a party must

disclose the subject matter on which the expert witness will

testify, all conclusions and opinions, and his or her

qualifications.  177 Ill. 2d R. 213(g).  Disclosure is mandatory

and must be adhered to on a strict basis.  Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 21 (1999).  The admission of such evidence is within the discretion of the trial court, whose

decision should not be disturbed absent an abuse of discretion. 

Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537 (1998).  In the present case, it is not an abuse of the court's

discretion to bar testimony about the standard of care relating to

doctor-nurse communications when such opinions were never

previously disclosed to defendant Edward Hospital.  See Susnis v. Radfar, 317 Ill. App. 3d 817, 829 (2000) (no abuse of discretion occurs when a court bars expert's testimony after a party fails to

make a Rule 213 disclosure for expert physician testimony regarding

the relevant standard of care).  

	Because we have upheld the trial court's Rule 213(g) ruling,

we are left to consider Dr. Barnhart’s testimony relating to

nursing procedures.  The testimony relating to nursing procedures

includes (1) nurse Lewis’s failure to pursue her concern that Burns

was a fall risk by bringing the problem to a higher authority in

the nursing chain of command and (2) her failure to provide for an

alternative to the posey vest to protect against a fall.  We

recognize the close relationship shared by a doctor and nurse

working in a hospital setting and that in many instances a doctor

may direct the actions of a nurse.  As Justice Ward stated in his Dolan dissent, "[u]nder [this] holding a physician would be unable to testify to nursing standards even though nurses operated under

his supervision or to testify to standards for midwives, and this

because the physician was not licensed as a nurse or a midwife."  Dolan, 77 Ill. 2d at 286.  However, when we consider the standard of care applicable to nursing procedures in light of the supreme

court’s license requirements and the concerns those license

requirements address, we find that the current facts do not merit

a deviation from the license requirement.  

	Under the Illinois Nursing Act of 1987 (225 ILCS 65/1 through

49 (West 1996)) (Act), the legislature has set forth a unique

licensing and regulatory scheme for the nursing profession.  The

Act establishes nursing as a unique school of medicine.  See Dolan, 77 Ill. 2d at 284 (the legislature has made a clear indication that

nursing is a distinct school of medicine).  Dr. Barnhart is not a

licensed member of the nursing profession.  To allow the doctor to

testify as to the standard of care applicable to the nursing profession implicates the risks raised by Dolan, namely, the imposition of a higher standard of care and the muddling and mixing

of various tenets and practices unique to each profession. 

Therefore, we affirm the trial court’s ruling on the competency of

Dr. Barnhart to testify to the standard of care for nursing

professionals.

	The real issue for review is whether Edward Hospital’s motion

for a directed verdict was properly granted by the court.  A review

of a directed verdict is de novo.  Susnis, 317 Ill. App. 3d at 825.  A directed verdict will be upheld where “"all of the evidence, when

viewed in its aspect most favorable to the opponent, so

overwhelmingly favors movant that no contrary verdict based on that

evidence could ever stand."  Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967).  

	Medical malpractice suits require the plaintiff to establish

the standard of care through the testimony of a medical expert.

Dolan, 77 Ill. 2d at 281.  In the present case, plaintiff failed to establish the applicable standard of care relevant to nurse Lewis. 

The only evidence offered by plaintiff on this issue was the

testimony of Dr. Barnhart, which was properly struck by the court. 

Thus, the plaintiff failed to establish a prima facie case of negligence against nurse Lewis and Edward Hospital. 

	The court appropriately determined as a matter of law that

there was no evidentiary basis out of which the jury could have

construed the necessary facts essential to recovery.  Jones, 154 Ill. 2d at 47.  Therefore, we affirm the trial court’s directed

verdict in favor of Edward Hospital.   

II. Jury Instructions on Proximate Cause

	Plaintiff next contends that the trial court erred by giving

the jury the long-form proximate cause instruction from Illinois

Pattern Jury Instructions, Civil, No. 12.05 (2000) (herinafter IPI

Civil (2000) No. 12.05)).  The trial court believed that there was

sufficient evidence for the jury to properly consider that

something other than the actions of  Dr. Conte-Russian may have

been the sole proximate cause of the injuries to Burns.  

	The parties have the right to have the jury clearly and fairly

instructed upon each theory that was supported by the evidence. 

Leonardi v. Loyola University, 168 Ill. 2d 83, 100 (1995).  The sole proximate cause instruction requires that there be some

evidence to justify giving the instruction.  McDonnell v. McPartlin, 192 Ill. 2d 505, 515 (2000).  The trial court retains the discretion to decide which instructions to give to a jury, and

that decision should not be disturbed absent an abuse of

discretion.  In re Nancy M., 317 Ill. App. 3d 167, 173 (2000).  A jury is considered to have been properly instructed by the trial

court after the jurors have been fairly, fully, and comprehensively

informed as to the relevant principles, considering the

instructions in their entirety.  Leonardi, 168 Ill. 2d at 100.  

	The notes on use under IPI Civil (2000) No. 12.05 state that

the long- form version "should be used only where there is evidence

tending to show that the sole proximate cause of the occurrence was

something other than the conduct of the defendant."  IPI Civil

(2000) No. 12.05, Notes on Use, at 58.  In the present case, the

trial produced some evidence to support giving the long-form version of IPI Civil (2000) No. 12.05.  First, evidence was

introduced that Burns was the sole proximate cause of his own

injuries because he failed to follow nurse Lewis's instructions to

stay in bed or call if he needed assistance.  Second, testimony was

introduced that the nurses had discretion to administer additional

medication as needed in their judgment but failed to do so. 

	Plaintiff asserts in part that because defendant Conte-Russian 

failed to plead contributory negligence or tender an expert's

testimony alleging some other proximate cause besides the conduct

of Dr. Conte-Russian, the long-form instruction on sole proximate

cause was improper.  In response, we note that negligent conduct

and proximate cause are distinct, albeit related, concepts. 

McDonnell, 192 Ill. 2d at 522.  "[I]n the context of a medical negligence case, the sole proximate cause instruction requires only

that the defendant present some evidence that the nondefendant is

the sole proximate cause of the plaintiff’s injury.  It is not

necessary that the defendant also establish that the nondefendant’s

conduct was medically negligent."  McDonnell, 192 Ill. 2d at 516.  Every injury need not proceed from a negligent cause.  McDonnell, 192 Ill. 2d at 522.  Consequently, the jury need only be presented

with some evidence of another proximate cause to justify the use of

the long-form instruction.     

	In the present case, we find that the trial court did not

abuse its discretion by finding that there was some evidence to

justify giving the long-form instruction on the issue of the sole

proximate cause to the jury.  In the presence of some evidence

concerning Burns’s own failure to follow the instructions of nurse Lewis and the failure of the nurses to properly administer

medication on an as-needed basis, the long-form version of IPI

Civil (2000) No. 12.05 fairly, fully, and comprehensively informed

the jury as to the relevant principles on the issue of sole

proximate cause.  Leonardi, 168 Ill. 2d at 100.    

III. The Propriety of the Jury Verdict in Favor of Dr. Conte-

Russian

	Finally, plaintiff contends that the jury verdict was against the manifest weight of the evidence.  On this issue, plaintiff

argues that the jury was presented with an expert's undisputed

testimony on two issues: (1) Dr. Conte-Russian’s failure to assess

Burns as a fall risk and take appropriate action and (2) whether

the use of Ativan increased the risk that Burns would fall and

injure himself. 

	A reviewing court should set aside a jury verdict where it

determines that the verdict is contrary to the manifest weight of

the evidence.  Johnson v. Chicago Transit Authority, 248 Ill. App. 3d 91, 94 (1993).  However, a jury verdict should stand if there is

sufficient credible evidence to support it.  Johnson, 248 Ill. App. 3d at 94.  Hence, we will not disturb a jury verdict unless there

is no evidence that fairly tends to support the verdict.  Lyon Metal Products, L.L.C. v. Protection Mutual Insurance Co., 321 Ill. App. 3d 330, 347 (2001).   

	We find that there is sufficient evidence to uphold the jury

verdict.  While plaintiff argues there is undisputed testimony from

an expert on two points of asserted negligence against Dr. Conte-

Russian, we find that plaintiff’s points of contention were either the subject of an expert's disputed testimony or not actually

before the jury for deliberation.

	Plaintiff’s first contention is that there was undisputed

testimony against Dr. Conte-Russian that "[her] abject failure to

assess Burns Sullivan as a fall risk, and take actions accordingly"

amounts to negligence.  However, during the reading of the

instructions to the jury, the trial court stated as follows:

"The plaintiffs Burns Sullivan and Juanita Sullivan claimed

that they were injured and sustained damage, and that the

defendant Dr. Amelia Conte-Russian was negligent in one or

more of the following respects. A, failed to order a sitter;

B, failed to order a posey vest or physical restraint; C,

failed to have Burns Sullivan properly monitored; D,

improperly prescribed Ativan."

	The failure of Dr. Conte-Russian to assess Burns as a fall

risk was not one of the grounds upon which the jury could have

found her liable because it was not submitted as an issue before

the jury.  Therefore, it cannot be found as a basis to reverse the

jury verdict.    

	However, plaintiff’s assertion that Dr. Conte- Russian failed

to "take appropriate action" in light of Burns's physical condition

clearly falls under the four issues placed before the jury.  The

record also clearly shows that Dr. Allen Muehrcke, testifying for

Dr. Conte-Russian, addressed all four issues.  Dr. Muehrcke opined

that Dr. Conte-Russian met the applicable standard of care in

regard to (1) ordering a sitter, (2) ordering a posey vest or physical restraints, (3) properly monitoring Burns, and (4)

properly prescribing Ativan.  

	Plaintiff’s second point of contention, that "the

administration of Ativan, instead of adequately alleviating the

fall risk, increased the risk of fall and injury," was also

addressed by Dr. Muehrcke. Once again, Dr. Muehrcke opined that

under the circumstances Dr. Conte-Russian met the applicable

standard of care when she prescribed Ativan.  

	We find that the jury verdict should stand because there is

sufficient credible evidence to support it.  We are not persuaded

by plaintiff’s attempt to reshape or restate the issues presented

to the jury.  The jury verdict is entitled to respect and

deference, and we will not invade the function of the jury and

substitute its judgment with our own.  Aldridge v. Morris, 337 Ill. App. 369, 374 (1949).  Thus, we affirm the jury verdict in favor of

Dr. Conte-Russian.       

Conclusion

	For the aforementioned reasons, we (1) affirm the trial

court’s directed verdict in favor of defendant Edward Hospital, (2)

affirm the trial court’s decision to use the long-form version of

IPI Civil (2000) No. 12.05, and (3) affirm the jury verdict in

favor of defendant Dr. Conte-Russian.   

	Affirmed.

	HUTCHINSON, P.J., and GEIGER, J., concur.