{
  "id": 781319,
  "name": "SUSAN HOEM, Appellee and Cross-Appellant, v. MICHAEL J. ZIA, M.D., et al., Appellants and Cross-Appellees",
  "name_abbreviation": "Hoem v. Zia",
  "decision_date": "1994-03-24",
  "docket_number": "Nos. 75100, 75159, 75168 cons.",
  "first_page": "193",
  "last_page": "205",
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    "id": 8772,
    "name": "Illinois Supreme Court"
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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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    "judges": [],
    "parties": [
      "SUSAN HOEM, Appellee and Cross-Appellant, v. MICHAEL J. ZIA, M.D., et al., Appellants and Cross-Appellees."
    ],
    "opinions": [
      {
        "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nIn March 1990, plaintiff, Susan Hoem, filed this medical malpractice action against defendants, Dr. Michael Zia, Dr. J. Steven Arnold, Decatur Memorial Hospital, and Central Illinois Lung Internists Associates. In her complaint, plaintiff alleged that defendants failed to diagnose and prevent the impending heart attack of her husband, Richard Hoem, that resulted in his death in November 1988. After a trial, the jury rendered a verdict for defendants.\nOn appeal, plaintiff argued that the trial court (1) erred by admitting testimony barred by the Dead-Man\u2019s Act (Ill. Rev. Stat. 1991, ch. 110, par. 8 \u2014 201); (2) improperly limited plaintiff\u2019s rebuttal witness\u2019 testimony; (3) failed to instruct the jury that the negligence of a subsequent party does not exonerate a prior act of negligence; (4) should have granted summary judgment for plaintiff on the issue of whether Dr. Arnold was an agent of the hospital; (5) erred in several evidentiary rulings; and (6) erroneously denied plaintiff\u2019s motion for judgment notwithstanding the verdict. The appellate court reversed and remanded for a new trial. 239 Ill. App. 3d 601.\nWe allowed defendants\u2019 petition for leave to appeal (134 Ill. 2d R. 315), and now affirm the judgment of the appellate court, although for reasons different from those stated by the appellate court.\nI. BACKGROUND\nRichard Hoem underwent a physical examination in March 1988. An electrocardiogram test (EKG) done as a part of this examination revealed no signs of heart problems.\nDuring the summer of that year, Hoem began to develop problems with his endurance. Thinking that his problems might be related to a previous lung condition, Hoem consulted Dr. Zia, a specialist in pulmonology. Dr. Zia had last treated Hoem in 1984 when Hoem failed a work-related lung test.\nOn October 31, 1988, Dr. Zia administered a series of tests designed to detect lung problems. He also scheduled Hoem to undergo a cardiopulmonary stress test on November 11, 1988, to measure lung capacity and fitness.\nBecause Dr. Zia was on vacation on November 11, 1988, his partner, Dr. Arnold, administered the test. During the test, Hoem exercised on a stationary cycle while an EKG monitored his heart rate as he breathed into a tube that monitored his lung capacity, strength, and endurance. The test also monitored blood pressure.\nOn November 21, Dr. Arnold notified Hoem that he had found a \"blockage\u201d, on the test and had scheduled Hoem to meet with a cardiologist, Dr. Krishan Patel, a week later, on November 29, 1988. The day prior to that meeting, however, Hoem collapsed after walking up a flight of stairs and later died.\nPlaintiff then brought suit against defendants, Dr. Michael Zia, Dr. J. Steven Arnold, Decatur Memorial Hospital, and Central Illinois Lung Internists Associates. Plaintiff\u2019s principal allegation of negligence was that Drs. Zia and Arnold had failed to recognize, and treat on an emergency basis, Hoem\u2019s cardiac condition.\nDuring plaintiff\u2019s case in chief, she presented the expert testimony of Dr. Dan Fintel, a cardiologist. Dr. Fintel testified that the EKG and medical charts showed clear signs of a prior heart attack and clear warnings of an impending heart attack. Dr. Fintel testified that when Hoem visited Dr. Zia on October 31, 1988, Hoem was describing angina to Dr. Zia, which is an undisputed symptom of heart disease. He testified that based upon the information that Dr. Zia recorded in his office notes, Dr. Zia should have recognized Hoem\u2019s complaints as angina, and hence initiated a program of cardiac diagnosis and treatment.\nDefendants responded by calling themselves and three other doctors as medical experts: Dr. Patel (the cardiologist whom Hoem was scheduled to see), Dr. William Buckingham (a board-certified internist and pulmonologist), and Dr. Patrick Sullivan (a board-certified internist).\nOver plaintiff\u2019s Dead-Man\u2019s Act objection, Dr. Zia testified concerning his examination of Hoem on October 31, 1988. Dr. Zia stated that the pain which Hoem described to him was not consistent with angina, but rather was consistent with musculoskeletal pain. Therefore, Dr. Zia did not suspect Hoem was suffering from heart disease, and did not initiate treatment for it.\nAmong other things, Dr. Patel testified that the medical results from Hoem\u2019s test did not present an urgent medical condition. He added that, if he had read the charts and results from Hoem\u2019s test immediately after Hoem took the test, he would not have done anything differently than Dr. Arnold had done.\nDr. Buckingham and both defendants testified that although Dr. Fintel may know the standard of care for a cardiologist, he did not testify to the applicable standard of care for pulmonologists. All three testified that although cardiologists might notice subtle, but life-threatening, heart problems from Hoem\u2019s medical data, pulmonologists would not notice these subtle problems. Dr. Sullivan and both defendants testified essentially to the same standard of care regarding internists.\nIn rebuttal, plaintiff attempted to present Dr. Robert Schoene, a board-certified pulmonologist, to testify that Dr. Fintel had accurately stated the applicable standard of care for pulmonologists. The trial court, however, restricted the extent to which plaintiff could do so under the general theory that plaintiff could have presented Dr. Schoene in her case in chief, but failed to do so.\nOn appeal, plaintiff argued that the trial court (1) erred by admitting testimony barred by the Dead-Man\u2019s Act (Ill. Rev. Stat. 1991, ch. 110, par. 8 \u2014 201); (2) improperly limited plaintiff\u2019s rebuttal witness\u2019 testimony; (3) failed to instruct the jury that the negligence of a subsequent party does not exonerate a prior act of negligence; (4) should have granted summary judgment for plaintiff on the issue of whether Dr. Arnold was an agent of the hospital; (5) erred in several evidentiary rulings; and (6) erroneously denied plaintiff\u2019s motion for judgment notwithstanding the verdict.\nThe appellate court reversed and remanded. That court found that the trial court erred in allowing Dr. Zia to testify to what Hoem told him during Hoem\u2019s visit because such testimony violated the Dead-Man\u2019s Act (Ill. Rev. Stat. 1991, ch. 110, par. 8 \u2014 201). The appellate court further held that the trial court had erroneously restricted the rebuttal testimony of Dr. Schoene. The appellate court found no error in the last four claims of error by plaintiff.\nII. APPEAL TO THIS COURT\nA. The Dead-Man\u2019s Act\nOn appeal to this court, defendants first argue that the trial court was correct in allowing Dr. Zia\u2019s testimony concerning his examination of Richard Hoem. Defendants submit that this testimony was permissible under the Dead-Man\u2019s Act because plaintiff waived the bar of the Act by earlier eliciting testimony from her expert witness, Dr. Fintel, about the meaning of Dr. Zia\u2019s office notes concerning the October 31, 1988, medical examination and introducing the notes themselves into evidence.\nThe first office note, prepared October 31, 1988, in Dr. Zia\u2019s handwriting, states:\n\u201d10/31/88 Aug \u2014 C spine SX \u2014 SOB Now \u2014 Tight across chest \u2014 c exercise No palpitations \u2014 or wheeze \u2014 \u201d\nThe other note in question reads as follows:\n\"Patient comes for follow-up today. He is complaining of pain and tightness in the upper chest area. This occurs primarily with exertion and does seem to radiate down his arms. He was initially evaluated by Dr. Hubbard for cervical arthritis and arthralgias and this has not been a problem recently. He is having no fevers, chills, sweats, palpitations, heart irregularity, wheezing, sputum production or other complaints.\nOn exam today he has blood pressure 144/100, states this is frequently high on visits to the doctor but is otherwise normal. He does not have any wheezing. The diaphragms appear to move well bilaterally. Cardiac exam is entirely normal. He has no peripheral edema or peripheral findings.\nBased on the above we have ordered a chest x-ray and asked x-ray to check for diaphragmatic motion. He has had previous left pleural thickening on a somewhat idiopathic basis. We have also ordered a complete pulmonary function with methacholine challenge and possible cardiopulmonary stress test depending on the above. We will call him after the above results and schedule any additional testing that is necessary.\u201d\nBased on the information found in these notes, Dr. Fin-tel, plaintiffs expert in her case in chief, testified that because Hoem complained of chest pains and tightness, Dr. Zia should have explored possible heart problems.\nDuring defendants\u2019 case in chief, Dr. Zia testified that Hoem did not complain of chest pain during this October 1988 visit. Dr. Zia testified as follows:\n\"[Defense Counsel]: I think I had asked you, Doctor, did Mr. Hoem say the reason he was back?\n[Dr. Zia]: Yes, he did.\n[Defense Counsel]: What did he say?\n[Dr. Zia]: As Mrs. Hoem had mentioned earlier, he had come back for a follow up on his lung condition and his shortness of breath.\n[Defense Counsel]: What did Mr. Hoem tell you by way of history, Doctor?\n[Dr. Zia]: His symptoms he mentioned began about August and there was a C spine symptom; that was my abbreviated way of describing it. Pain which was C spine pain, in the back of the neck, and tightness in the posterior thorax or back of the chest upper chest, just below the neck. That symptom did seem to radiate into his arms, as many people have described. He did notice it more with exertion ***. He said that this symptom had already been evaluated, had initially been evaluated by Dr. Hubbard because someone had told him he had cervical spine muscular spasm symptoms, that medicine being Flexeril as documented in our medication list. And he said that that worked and that had not been a problem recently. The chest, posterior chest tightness, neck pain going down his arm[J had not been a problem recently.\u201d\nThe appellate court found that this testimony was improperly admitted, in violation of the Dead-Man\u2019s Act.\nWe disagree. The Dead-Man\u2019s Act provides:\n\"In the trial of any action in which any party sues or defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased *** or to any event which took place in the presence of the deceased ***, except in the following instances:\n(a) If any person testifies on behalf of the representative to any conversation with the deceased *** or to any event which took place in the presence of the deceased ***, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.\u201d (Ill. Rev. Stat. 1991, ch. 110, par. 8 \u2014 201.)\nWe find that the testimony of Dr. Fintel and the introduction of Dr. Zia\u2019s office notes opened the door to Dr. Zia\u2019s testimony.\nDuring Dr. Fintel\u2019s direct examination, the following took place:\n\"[Plaintiff\u2019s counsel]: Doctor, did you formulate any opinions to a reasonable degree of medical certainty based upon your review of Plaintiff\u2019s Exhibit A, pages 1, and 37, as well as based on the results of the x-ray and other tests that were notations for the day of October 31, 1988?\n[Dr. Fintel]: Yes, I have.\n[Plaintiff\u2019s counsel]: Doctor, what is it in those records that leads you to express the opinion that Mr. Hoem had exertional chest pain?\n[Dr. Fintel]: I base this on reading what is a very well-documented and legible typed note, that which we all see on our right. Looking at the second line where I read, 'he,\u2019 referred to Mr. Hoem, 'is complaining of pain and tightness in the upper chest area. This occurs primarily with exertion and does seem to radiate down his arms.\u2019\nThat to me suggests that Dr. Zia recognized that the principal reason why the patient came to the office for evaluation was for evaluation and treatment of this problem.\u201d\nFrom these statements, it may be argued that Dr. Fintel is merely interpreting the note. He is, however, doing more than that. Rather than merely translating Dr. Zia\u2019s note for the benefit of the jury, Dr. Fintel has put his gloss on the notes. Taking Dr. Fintel\u2019s statements together, he is clearly insinuating that Hoem visited Dr. Zia specifically for the treatment of a heart related problem. Under these facts, we find that Dr. Fintel\u2019s testimony falls within subsection (a) of the Act (111. Rev. Stat. 1991, ch. 110, par. 8 \u2014 201(a)) and that plaintiff has waived the bar of the Dead-Man\u2019s Act.\nThe purpose of the Dead-Man\u2019s Act is to remove the temptation of the survivor to a transaction to testify falsely and to equalize the positions of the parties in regard to the giving of testimony. (M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 606.1, at 314-15 (5th ed. 1990).) In this case, allowing the representative of the deceased to introduce her version of why Hoem went to Dr. Zia, without giving an equal opportunity to Dr. Zia, would not advance the policy behind the Act. Under these circumstances, we find it fundamentally unfair to deny Dr. Zia an opportunity to explain his view of what happened. Left unchallenged, Dr. Fintel\u2019s comments would have remained with the jury as the only testimony regarding the conversation between Dr. Zia and Hoem.\nB. The Scope of Dr. Schoene\u2019s Testimony\nDefendants next contend that the appellate court improperly held that the trial court had erroneously restricted the rebuttal testimony of Dr. Schoene. We disagree and affirm the appellate court decision.\nOriginally, plaintiff only named Dr. Fintel as her expert. In August 1991, defendants filed a motion for summary judgment based on their claim that because plaintiffs only named expert, Dr. Fintel, was a cardiologist, he could establish neither the standard of care for a pulmonologist nor any deviation therefrom. Thus, in her September 1991 response to defendants\u2019 summary judgment motion, filed two months before the November 1991 trial, plaintiff asked the trial court to add Dr. Schoene to the list she previously disclosed under Illinois Supreme Court Rule 220 (134 Ill. 2d R. 220) of expert witnesses she intended to call in her case in chief.\nThe trial court denied defendants\u2019 motion for summary judgment and held that Dr. Fintel\u2019s testimony could suffice to establish the appropriate standard of care and any deviation therefrom because Dr. Fintel and defendants were all board-certified internists, and because of the close relation betw\u00e9en the fields of pulmonology and cardiology and Dr. Fintel\u2019s experience in both. The court, however, refused to the permit Dr. Schoene to testify in plaintiff\u2019s case in chief because plaintiff did not originally disclose him as an expert in her case in chief. The court explained that the ensuing delays from allowing plaintiff to add Dr. Schoene as an expert in her case in chief would be unnecessarily burdensome.\nAt trial, plaintiff relied on Dr. Fintel to establish the standard of care in her case in chief. After plaintiff rested, the trial court denied defendants\u2019 motion for a directed verdict, thus indicating that it found Dr. Fin-tel\u2019s testimony legally sufficient. Defendants then countered in their case in chief with testimony to the effect that although Dr. Fintel probably correctly stated the applicable standard of care for cardiologists, he did not correctly state the applicable standard of care for pulmonologists. They further testified that the medical records and information that Dr. Zia received would not have signaled Hoem\u2019s impending heart condition to a pulmonologist, especially because pulmonologists are trained to notice mostly lung conditions.\nPlaintiff then offered Dr. Schoene in rebuttal to testify that Dr. Fintel did correctly state the applicable standard of care for pulmonologists, and that a pulmonologist such as himself would have noticed Hoem\u2019s impending heart condition and sent Hoem immediately to obtain treatment for it. Defendants object to Dr. Schoene\u2019s testifying in rebuttal, and the trial court sustained that objection. The trial court held that Dr. Schoene could not testify to the general standard of care for pulmonologists because plaintiff should have presented that evidence in her case in chief.\nOn appeal, the appellate court found that the trial court erred in restricting Dr. Schoene\u2019s testimony in rebuttal. That court found that defendants\u2019 experts had seriously impeached Dr. Fintel and that it was an abuse of discretion to prohibit the plaintiff from rebutting this testimony.\nOn appeal to this court, defendants argue that the trial court properly restricted the scope of Dr. Schoene\u2019s testimony. They maintain that plaintiff committed a fundamental tactical error in the preparation of her case for trial by retaining an inappropriate expert and should not be allowed to rectify this mistake through rebuttal.\nWe cannot agree with this tactical-error analysis. To adopt the defendants\u2019 view on this issue would be tantamount to requiring a plaintiff to anticipate and present all conceivably relevant evidence in her case in chief, because, otherwise, she would be barred from presenting that evidence in rebuttal in the event defendants presented evidence in their case in chief that plaintiff needed to counter. As stated by the appellate court in this case, such a rule would be \"antithetical to the concerns expressed by all involved in our civil justice system about its present costs, wastes, and delays.\u201d 239 111. App. 3d at 619.\nDefendants further argue that Dr. Schoene\u2019s testimony would not be proper rebuttal evidence. They argue that there is scant evidence from the record which would indicate that defendants had impeached Dr. Fintel on the standard of care issue.\nContrary to defendants\u2019 contention, there is evidence in the record indicating that defendants had impeached Dr. Fintel. Specifically, defendants\u2019 expert, Dr. Buckingham, testified that from his perspective as a pulmonologist, the stress test results did not require an immediate referral to a cardiologist. When asked whether he had any disagreement in whole or in part with Dr. Fintel\u2019s statements on that aspect of the case, Dr. Buckingham responded:\n\"My disagreement was in whole. I looked at the same cardiogram, Dr. Fintel is a cardiologist, and I\u2019m a pulmonologist. I looked at the cardiogram-tracings and did not see anything I as a pulmonologist would identify as abnormalities.\u201d\nDr. Buckingham further stated:\n\"As I say, you can have as many interpretations as you have interpreters, and they may not always agree, but certainly a cardiologist might look at an electrocardiographic tracing differently than a pulmonologist would, but I don\u2019t think the pulmonologist could be held to the standard of the cardiologist because he\u2019s a pulmonologist.\u201d\nThis testimony could have left the jury with the impression that plaintiff\u2019s expert had expressed an inappropriate standard of care with regard to reading the test results. Given these circumstances, we find that plaintiff was entitled to have Dr. Schoene testify on rebuttal.\nIII. PLAINTIFF\u2019S CROSS-APPEAL\nAside from the two issues raised by defendants, plaintiff raises several issues on cross-appeal with regard to certain adverse rulings by the appellate court. We find, however, that these issues have been fully covered by the well-considered opinion of the appellate court, and we agree with and adopt the reasoning and findings stated therein.\nIV. CONCLUSION\nIn conclusion, we find that the trial court properly admitted the testimony of Dr. Zia over plaintiff\u2019s Dead-Man\u2019s Act objection but find that the trial court abused its discretion in restricting the rebuttal testimony of Dr. Schoene. The judgment of the appellate court is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "JUSTICE HEIPLE"
      }
    ],
    "attorneys": [
      "Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellant and cross-appellee J. Steven Arnold.",
      "Kehart, Shatter, Hughes & Webber, P.C., of Decatur (Michael J. Kehart and Albert G. Webber, of counsel), for appellants and cross-appellees Michael J. Zia and Central Illinois Lung Internists Associates, S.C.",
      "John E. Pick, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellant and cross-appellee Decatur Memorial Hospital.",
      "Alexandra de Saint Phalle, of Londrigan, Potter & Randle, P.C., of Springfield, for appellee and cross-appellant."
    ],
    "corrections": "",
    "head_matter": "(Nos. 75100, 75159, 75168 cons.\nSUSAN HOEM, Appellee and Cross-Appellant, v. MICHAEL J. ZIA, M.D., et al., Appellants and Cross-Appellees.\nOpinion filed March 24, 1994.\nRehearing denied May 27, 1994.\nRichard F. Record, Jr., of Craig & Craig, of Mattoon, for appellant and cross-appellee J. Steven Arnold.\nKehart, Shatter, Hughes & Webber, P.C., of Decatur (Michael J. Kehart and Albert G. Webber, of counsel), for appellants and cross-appellees Michael J. Zia and Central Illinois Lung Internists Associates, S.C.\nJohn E. Pick, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellant and cross-appellee Decatur Memorial Hospital.\nAlexandra de Saint Phalle, of Londrigan, Potter & Randle, P.C., of Springfield, for appellee and cross-appellant."
  },
  "file_name": "0193-01",
  "first_page_order": 205,
  "last_page_order": 217
}