{ "id": 3216989, "name": "VITO GALLINA, Plaintiff-Appellant, v. MICHAEL WATSON et al., Defendants-Appellees", "name_abbreviation": "Gallina v. Watson", "decision_date": "2004-12-20", "docket_number": "No. 4-04-0244", "first_page": "515", "last_page": "523", "citations": [ { "type": "official", "cite": "354 Ill. App. 3d 515" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "683 N.E.2d 985", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "993" } ], "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 165", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456121 ], "year": 1997, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0165-01" ] }, { "cite": "255 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2987529 ], "weight": 7, "year": 1993, "pin_cites": [ { "page": "362" }, { "page": "362" }, { "page": "362" }, { "page": "362" }, { "page": "363" }, { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/0352-01" ] }, { "cite": "557 N.E.2d 186", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 886", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2482406 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "898" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0886-01" ] }, { "cite": "390 N.E.2d 53", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "56" }, { "page": "55" }, { "page": "55" } ], "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 831", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5579601 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "835" }, { "page": "833" }, { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0831-01" ] }, { "cite": "381 N.E.2d 279", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "285" }, { "page": "284" } ], "opinion_index": 0 }, { "cite": "72 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443658 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "261" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0249-01" ] }, { "cite": "662 N.E.2d 1238", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1246" } ], "opinion_index": 0 }, { "cite": "169 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909172 ], "year": 1996, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0504-01" ] } ], "analysis": { "cardinality": 687, "char_count": 17646, "ocr_confidence": 0.705, "pagerank": { "raw": 1.1134150513183322e-07, "percentile": 0.5712694060541753 }, "sha256": "8fecd8226e5110c388043e10515ad37c74331a67cbfe667097510133166f7d6c", "simhash": "1:877e5f6aaa7fb8e0", "word_count": 2896 }, "last_updated": "2023-07-14T16:31:29.254043+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VITO GALLINA, Plaintiff-Appellant, v. MICHAEL WATSON et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nIn January 2004, a jury found in favor of defendants, Dr. Michael Watson and Memorial Medical Center (Memorial), in a medical malpractice action filed by plaintiff, Vito Gallina. Gallina appeals, arguing the trial court erred by (1) granting Dr. Michael Watson and Memorial\u2019s motion in limine regarding the testimony of a defense expert witness and (2) refusing to allow plaintiffs exhibit No. 9 to be taken into the jury room during deliberations. We reverse and remand.\nI. BACKGROUND\nOn March 9, 1997, Vito Gallina was injured in a head-on vehicle collision at over 85 miles per hour. Gallina fractured his jaw, left femur, pelvis, hand, and both ankles. Gallina also ruptured his spleen and suffered a loss of blood.\nGallina was taken to Memorial in Springfield for treatment. Dr. Michael Watson was on call the night of the accident and responded at Memorial. Multiple specialists, including Dr. Watson, treated Gallina after the accident. Dr. Watson treated the fracture of Gallina\u2019s talus bone by immobilizing the fracture with a splint. Dr. Watson testified he did not operate on Gallina\u2019s right ankle because it was acceptable not to do so and another surgery could have threatened Gallina\u2019s life due to the multiple surgeries already performed that night.\nIn March 1999, Gallina filed a complaint against Dr. Watson and Memorial. In January 2001, Gallina filed a three-count second-amended complaint against Dr. Watson and Memorial. Count I alleged Dr. Watson was negligent in his treatment of Gallina. Count II alleged Memorial was responsible for Dr. Watson\u2019s negligence based on agency. Count III alleged Memorial was responsible for Dr. Watson\u2019s negligence based on apparent agency.\nIn September 2003, Memorial filed a motion for summary judgment on count II of Gallina\u2019s second-amended complaint. The record does not reflect the trial court ever ruled on this motion. Memorial did not file a motion for summary judgment on count III of Gallina\u2019s second-amended complaint.\nIn January 2004, Dr. Watson filed a motion in limine to exclude testimony relating to Dr. Joseph Whalen\u2019s personal preferences for treating different types of fractures. Later that month, Memorial joined in Dr. Watson\u2019s motion in limine. After hearing arguments on the motion in limine, the trial court allowed the motion. As a result, the following testimony was deleted from the videotaped evidence deposition of Dr. Whalen:\n\u201c[MR. VERTICCHIO (plaintiffs counsel):] Would you be of the opinion that this type of controversial decision should have been discussed with the patient being allowed to make the decision as to what treatment he would opt for?\nMR. KOKAL [(defense counsel)]: We still have our objection beyond the scope.\n[MR. VERTICCHIO:] I understand you believe that. I don\u2019t necessarily agree with it.\n[DR. WHALEN:] Well, I can\u2019t say what Dr. Watson did or said. I would present to the patient that it\u2019s this type of fracture. If you follow the instructions well, you do what I say, we won\u2019t need to do surgery. Surgery is an option. It carries its own risks such as further interfering with the blood supply The healing potential is not really too much different between nonoperative and operative treatment with [t]ype I fractures. Like I said, it\u2019s the experience of the surgeon, and it\u2019s a controversial area. I tend to be one that fixes them.\n[MR. VERTICCHIO:] Thank you, Doctor. No further questions. Fix them \u2014 excuse me. Fix them by open reduction?\n[DR. WHALEN:] All Type IIs, Type Is I may treat nonoperatively.\u201d\nAccording to the testimony of Dr. Watson, he agreed with his resident\u2019s assessment in the preoperative diagnosis section of the operative report that Gallina had a type II fracture.\nDuring the trial, Gallina introduced as evidence the written opinion disclosures of another of defendants\u2019 expert witnesses, Dr. Vilray Blair. Gallina asked the trial court to allow these disclosures, plaintiffs exhibit No. 9, to be taken by the jury into the jury room during its deliberations. The court denied this request.\nThe jury found against Gallina and for Dr. Watson and Memorial. Gallina appeals.\nII. ANALYSIS\nGallina argues the trial court erred by (1) allowing Dr. Watson and Memorial\u2019s motion in limine deleting the portion of Dr. Whalen\u2019s evidence deposition regarding his personal treatment preferences and (2) denying Gallina\u2019s request to send plaintiffs exhibit No. 9 into the jury room during the jury\u2019s deliberations.\nMemorial argues if we reverse and remand this case to the trial court, we should determine whether Dr. Watson was an ostensible agent of Memorial.\nA. Motion in Limine\nThe first question before this court is whether the trial court erred in allowing Dr. Watson and Memorial\u2019s motion in limine. Gallina argues the exclusion of the portion of Dr. Whalen\u2019s evidence deposition regarding the doctor\u2019s personal treatment preferences denied Gallina the right to challenge Dr. Whalen\u2019s credibility concerning his opinions expressed in favor of Dr. Watson.\n\u201cA trial judge has discretion in granting a motion in limine and a reviewing court will not reverse a trial court\u2019s order allowing or excluding evidence unless that discretion was clearly abused.\u201d Swick v. Liautaud, 169 Ill. 2d 504, 521, 662 N.E.2d 1238, 1246 (1996).\nDefendants argue the trial court did not abuse its discretion in granting defendants\u2019 motion in limine because evidence of a physician\u2019s personal preference is irrelevant. They also argue the excluded testimony does not challenge the credibility of Dr. Whalen\u2019s opinion, i.e., that Dr. Watson did not violate the standard of care in his treatment of plaintiff.\n1. Relevance\nDefendants cite the Supreme Court of Illinois\u2019s decision in Walski v. Tiesenga, 72 Ill. 2d 249, 381 N.E.2d 279 (1978), to support their argument regarding the relevance of a physician\u2019s personal preferences. Defendants rely on the following language from Walski:\n\u201cIt is insufficient for [the] plaintiff to establish a prima facie case merely to present testimony of another physician that he would have acted differently from the defendant, since medicine is not an exact science. It is rather a profession which involves the exercise of individual judgment within the framework of established procedures. Differences in opinion are consistent with the exercise of due care.\u201d Walski, 72 Ill. 2d at 261, 381 N.E.2d at 285.\nWhile we agree with the supreme court, Walski is distinguishable from this case.\nIn Walski, the plaintiff failed to present evidence showing the standard of care to which the defendants were bound to adhere. According to the supreme court:\n\u201cPlaintiffs expert *** testified only concerning his own personal preference for isolating the laryngeal nerve under the facts presented to him in the hypothetical question. He at no time testified that there was a generally accepted medical standard of care or skill which required the identification of the laryngeal nerve under the circumstances.\u201d Walski, 72 Ill. 2d at 259, 381 N.E.2d at 284.\nIn the instant case, Gallina was not attempting to establish his prima facie case with the testimony of defendants\u2019 expert, Dr. Whalen. Plaintiff Gallina\u2019s own expert witness established plaintiffs prima facie case.\nDefendants also cite Stevenson v. Nauton, 71 Ill. App. 3d 831, 390 N.E.2d 53 (1979), and Mazzone v. Holmes, 197 Ill. App. 3d 886, 557 N.E.2d 186 (1990). Defendants point to the following language from Stevenson in support of their argument:\n\u201cThe expert\u2019s statements as to what he would have done in the situation encountered by Dr. Nauton are irrelevant since the issue before the trial court was whether the defendant acted contrary to accepted or customary medical standards at that time and place.\u201d Stevenson, 71 Ill. App. 3d at 835, 390 N.E.2d at 56.\nThis statement, when read alone, would appear to support defendants\u2019 position. However, when the statement is read in the context of the entire decision, it does not.\nIn Stevenson, the plaintiff was appealing from a trial court\u2019s order granting summary judgment for defendant because the plaintiff failed to \u201cmake out a prima facie case as to the acceptable standard of care against which the defendant physician was to be measured.\u201d Stevenson, 71 Ill. App. 3d at 833, 390 N.E.2d at 55. Plaintiffs expert testified as to what he might have done if he had been consulted by the plaintiff under the same circumstances presented to the defendant. However, the plaintiffs expert also testified \u201che could not form a definite opinion as to whether [the defendant\u2019s] treatment of the plaintiff was below acceptable medical standards.\u201d Stevenson, 71 Ill. App. 3d at 833, 390 N.E.2d at 55. Taken in context, we find the appellate court was only saying the plaintiffs expert\u2019s statements about what he would have done were not relevant in establishing plaintiffs prima facie case.\nAs we stated above, in the instant case, plaintiff was not attempting to use Dr. Whalen\u2019s testimony to establish his prima facie case. Plaintiff used his own expert witness to establish his prima facie case. As a result, the instant case is distinguishable from Stevenson.\nIn Mazzone, the First District Appellate Court stated as follows:\n\u201cOn the issue of whether the defendant deviated from the standard of care, an expert\u2019s statements as to what he would have done are not relevant because differences in opinion are consistent with conformity to the applicable standard.\u201d Mazzone, 197 Ill. App. 3d at 898, 557 N.E.2d at 193.\nMazzone appears to say an expert\u2019s statements as to what he or she would have done are never relevant. In reading this conclusion, we conclude the Mazzone court unjustifiably stretched the holdings in both Walski and Stevenson, on which the Mazzone court solely relied and which we have already distinguished from the case at bar.\nIn arguing the trial court erred in granting defendants\u2019 motion in limine, plaintiff Gallina relies on language from this court\u2019s decision in Rush v. Hamdy, 255 Ill. App. 3d 352, 627 N.E.2d Ill. (1993). In Rush, the plaintiffs argued the trial court erred in not allowing them to ask the defendants\u2019 expert witness whether he would have personally used a \u201cSavary\u201d dilator in treating the plaintiff instead of an achalasia balloon. Rush, 255 Ill. App. 3d at 362, 627 N.E.2d at 1125. Defendants\u2019 expert testified the use of an achalasia balloon was within the acceptable standard of care. Rush, 255 Ill. App. 3d at 362, 627 N.E.2d at 1125-26. However, at his deposition, defendants\u2019 expert testified if plaintiff had been his patient, he would have treated her with a \u201cSavary\u201d dilator. Rush, 255 Ill. App. 3d at 362, 627 N.E.2d at 1126. The plaintiffs in Rush made the following argument:\n\u201c[T]here is a difference in the persuasive value of an expert witness who testifies a certain procedure is within the standard of care and is the procedure which the expert himself would have used under the same circumstances and an expert who testifies a certain procedure is within the standard of care, but that he would not have utilized that procedure under the same circumstances.\u201d Rush, 255 Ill. App. 3d at 362, 627 N.E.2d at 1126.\nThis court agreed but found the trial court did not abuse its discretion in not allowing this line of inquiry because the trial court had allowed the plaintiffs to elicit testimony from the defendants\u2019 expert \u201cthat he had never used an achalasia balloon to dilate a Schatzki\u2019s ring, and in all of his years of practice [the defendant doctor\u2019s] treatment of [the plaintiff] was the only case he knew of in which an achalasia balloon had been used to dilate a Schatzki\u2019s ring.\u201d (Emphasis omitted.) Rush, 255 Ill. App. 3d at 363, 627 N.E.2d at 1126. According to this court, \u201c[t]his testimony sufficiently tested the credibility of [the defendants\u2019 expert\u2019s] opinion that the use of an achalasia dilator was within the acceptable standard of care to the jury.\u201d Rush, 255 Ill. App. 3d at 363, 627 N.E.2d at 1126.\nWhile we agree with defendants a plaintiff cannot establish a prima facie case of medical negligence based solely on the testimony of another physician that he or she would have done things differently, we disagree with defendants\u2019 argument that an expert medical witness\u2019s personal preferences are always irrelevant. In this case, the excluded portion of Dr. Whalen\u2019s testimony is relevant because it affects the persuasive value of Dr. Whalen\u2019s opinions as discussed below.\n2. Credibility\nDefendants also argue Dr. Whalen\u2019s excluded testimony that he always treats type II fractures by open reduction is not inconsistent with his testimony opining Dr. Watson did not violate the standard of care by treating plaintiff\u2019s fracture without surgery because Dr. Whalen identified plaintiffs fracture as a type I fracture. However, this ignores the fact Dr. Watson testified at trial he did not disagree with his resident\u2019s assessment in the preoperative diagnosis section of the operative report that Gallina had a type II fracture of the talus. Further, Dr. Watson also admitted he was of the opinion Gallina had a type II talar fracture when he saw an X ray of plaintiffs ankle on the night of the accident.\nIf no evidence suggested Dr. Watson believed Gallina had a type II fracture when he treated Gallina on the night of the accident, defendants would be correct in asserting Dr. Whalen\u2019s testimony he always treats type II fractures by open reduction would be irrelevant. However, Dr. Watson testified he diagnosed Gallina as having a type II fracture on the night of the accident. As a result, Dr. Whalen\u2019s testimony he always performs open reductions on type II fractures is relevant because Dr. Watson testified he believed he was dealing with a type II fracture when he chose not to operate on plaintiff.\nWhile Dr. Whalen\u2019s excluded testimony far from proves Dr. Watson breached the standard of care by not performing an open reduction on plaintiff, Dr. Whalen\u2019s excluded testimony goes to the credibility and persuasive value of his opinion Dr. Watson\u2019s actions were within the standard of care.\nWe find the trial court abused its discretion in excluding this testimony from the jury as it is relevant and affects the credibility and persuasive value of Dr. Whalen\u2019s opinion Dr. Watson acted within the standard of care.\nB. Plaintiffs Exhibit No. 9\nThe second question before this court is whether the trial court erred in denying plaintiff Gallina\u2019s request for the jury to take plaintiffs exhibit No. 9, Dr. Blair\u2019s written opinion disclosures, into the jury room during its deliberations.\nAccording to section 2\u20141107(d) of the Code of Civil Procedure (Code), \u201c[pjapers read or received in evidence, other than depositions, may be taken by the jury to the jury room for use during the jury\u2019s deliberations.\u201d 735 ILCS 5/2\u20141107(d) (West 2002). \u201cThe decision whether to send exhibits to the jury room is within the trial court\u2019s sound discretion, and a reviewing court will not disturb that decision absent an abuse of discretion that prejudices a party.\u201d Van Winkle v. Owens-Corning Fiberglas Corp., 291 Ill. App. 3d 165, 176, 683 N.E.2d 985, 993 (1997).\nWe find the trial court abused its discretion in not allowing plaintiffs exhibit No. 9 to go to the jury room. None of the parties in their respective briefs identified the location in the record of the parties\u2019 arguments on whether plaintiffs exhibit No. 9 should go to the jury room. Memorial states in its brief the court did not allow the exhibit to go to the jury room because it would place more emphasis on that exhibit than the other pieces of evidence. Memorial also states in its brief the exhibit contained many irrelevant opinions.\nWe agree trial courts have a wide range of discretion in deciding what will be sent to the jury room. However, based on the facts in this case, we find the court abused its discretion in not allowing plaintiffs exhibit No. 9 to go to the jury room. This exhibit would have been of assistance to the jury in assessing Dr. Blair\u2019s testimony. We disagree with Memorial when it argues sending plaintiffs exhibit No. 9 to the jury would have overemphasized that piece of evidence; the court sent all of the other exhibits to the jury room. By not sending plaintiffs exhibit No. 9 to the jury room, the court diminished this piece of evidence.\nC. Ostensible Agency\nMemorial argues if we remand this case to the trial court, we must decide whether Dr. Watson was an ostensible agent of Memorial. Ostensible or apparent agency is the basis for count III of Gallina\u2019s second-amended complaint. From the record, it does not appear Memorial ever filed a motion for summary judgment on count III of Gallina\u2019s second-amended complaint. As a result, the trial court never had an opportunity to rule on this issue. We will not rule on this issue until the trial court has had an opportunity to do so. Memorial is free to raise this issue with the court on remand.\nIII. CONCLUSION\nFor the reasons stated, we reverse and remand this case to the trial court.\nReversed and remanded.\nCOOK, EJ., and MYERSCOUGH, J., concur.", "type": "majority", "author": "JUSTICE KNECHT" } ], "attorneys": [ "Rick Verticchio (argued), of Verticchio & Verticchio, of Gillespie, for appellant.", "Karen L. Kendall (argued), Adrian E. Harless, and Michael T. Kokal, all of Heyl, Royster, Voelker & Allen, of Springfield, for appellee Michael Watson.", "Edward J. Cunningham (argued), of Brown, Hay & Stephens, L.L.E, of Springfield, for appellee Memorial Medical Center." ], "corrections": "", "head_matter": "VITO GALLINA, Plaintiff-Appellant, v. MICHAEL WATSON et al., Defendants-Appellees.\nFourth District\nNo. 4\u201404\u20140244\nArgued November 9, 2004.\nOpinion filed December 20, 2004.\nRehearing denied January 28, 2005.\nRick Verticchio (argued), of Verticchio & Verticchio, of Gillespie, for appellant.\nKaren L. Kendall (argued), Adrian E. Harless, and Michael T. Kokal, all of Heyl, Royster, Voelker & Allen, of Springfield, for appellee Michael Watson.\nEdward J. Cunningham (argued), of Brown, Hay & Stephens, L.L.E, of Springfield, for appellee Memorial Medical Center." }, "file_name": "0515-01", "first_page_order": 533, "last_page_order": 541 }