{ "id": 4283231, "name": "KIMBERLY A. PETRYSHYN, Plaintiff-Appellee, v. BARRY SLOTKY et al., Defendants-Appellants (OSF Health Care System, d/b/a St. Joseph Medical Center, Defendant)", "name_abbreviation": "Petryshyn v. Slotky", "decision_date": "2008-07-29", "docket_number": "No. 4-07-0754", "first_page": "1112", "last_page": "1125", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 1112" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "871 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2007, "pin_cites": [ { "page": "792" }, { "page": "792" }, { "page": "792" } ], "opinion_index": 0 }, { "cite": "373 Ill. App. 3d 929", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269684 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "942" }, { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0929-01" ] }, { "cite": "866 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "1248", "parenthetical": "pathologist was not familiar with the methods, procedures, and treatments ordinarily observed by specialists in plastic surgery and anesthesiology to qualify as an expert" } ], "opinion_index": 0 }, { "cite": "373 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4270437 ], "year": 2007, "pin_cites": [ { "page": "6", "parenthetical": "pathologist was not familiar with the methods, procedures, and treatments ordinarily observed by specialists in plastic surgery and anesthesiology to qualify as an expert" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0001-01" ] }, { "cite": "607 N.E.2d 224", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "225" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 39", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821058 ], "year": 1992, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0039-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "870" }, { "page": "870-71" }, { "page": "876-77" }, { "page": "872-73" } ], "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "238" }, { "page": "238-39" }, { "page": "250-51" }, { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "686 N.E.2d 722", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "727" }, { "page": "727" }, { "page": "729" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 896", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725109 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "903-04" }, { "page": "903-04" }, { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0896-01" ] }, { "cite": "396 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1979, "pin_cites": [ { "page": "15" }, { "page": "16" }, { "page": "16" }, { "page": "16" }, { "page": "16" } ], "opinion_index": 0 }, { "cite": "77 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490810 ], "weight": 5, "year": 1979, "pin_cites": [ { "page": "281" }, { "page": "285" }, { "page": "283" }, { "page": "283" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0279-01" ] }, { "cite": "732 N.E.2d 1094", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1096" } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 1080", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140166 ], "year": 2000, "pin_cites": [ { "page": "1083" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/1080-01" ] }, { "cite": "783 N.E.2d 1076", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1080" } ], "opinion_index": 0 }, { "cite": "336 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599295 ], "year": 2003, "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0595-01" ] }, { "cite": "885 N.E.2d 1120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "1130", "parenthetical": "where the First District, using the abuse-of-discretion standard, reversed the trial court's order for a new trial in a medical-malpractice case" } ], "opinion_index": 0 }, { "cite": "381 Ill. App. 3d 275", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3627473 ], "year": 2008, "pin_cites": [ { "page": "283", "parenthetical": "where the First District, using the abuse-of-discretion standard, reversed the trial court's order for a new trial in a medical-malpractice case" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/381/0275-01" ] }, { "cite": "790 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "84" } ], "opinion_index": 0 }, { "cite": "339 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469240 ], "year": 2003, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0067-01" ] }, { "cite": "813 N.E.2d 1030", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "1040", "parenthetical": "physicians were not qualified to testify to (1) the nurses' standard of care or (2) whether the nursing staff deviated from their standard of care" } ], "opinion_index": 0 }, { "cite": "351 Ill. App. 3d 398", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083965 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0398-01" ] }, { "cite": "806 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "page": "657" }, { "page": "657-58" }, { "page": "654" }, { "page": "654" }, { "page": "654" }, { "page": "657" }, { "page": "657" } ], "opinion_index": 0 }, { "cite": "209 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462131 ], "weight": 7, "year": 2004, "pin_cites": [ { "page": "119" }, { "page": "119" }, { "page": "113" }, { "page": "112-13" }, { "page": "113" }, { "page": "118-19" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0100-01" ] }, { "cite": "365 N.E.2d 549", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "552", "parenthetical": "\" 'An evidence deposition is not the \"property\" of the party who takes it, and any portion of an evidence deposition may be offered by either side' \"" } ], "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 990", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5638776 ], "year": 1977, "pin_cites": [ { "page": "995", "parenthetical": "\" 'An evidence deposition is not the \"property\" of the party who takes it, and any portion of an evidence deposition may be offered by either side' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0990-01" ] }, { "cite": "874 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "369 Ill. App. 3d 988", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267149 ], "year": 2007, "pin_cites": [ { "page": "1001" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0988-01" ] }, { "cite": "603 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "513" } ], "opinion_index": 1 }, { "cite": "151 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "year": 1992, "pin_cites": [ { "page": "455-56" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/151/0445-01" ] }, { "cite": "313 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "260", "parenthetical": "captain of the ship" } ], "opinion_index": 1 }, { "cite": "19 Ill. App. 3d 1055", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2695144 ], "year": 1974, "pin_cites": [ { "page": "1061", "parenthetical": "captain of the ship" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/19/1055-01" ] }, { "cite": "658 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "459" }, { "page": "457" } ], "opinion_index": 1 }, { "cite": "168 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307264 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "101" }, { "page": "97" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/168/0083-01" ] }, { "cite": "679 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1219" } ], "opinion_index": 1 }, { "cite": "176 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544914 ], "year": 1997, "pin_cites": [ { "page": "134" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/176/0095-01" ] }, { "cite": "736 N.E.2d 1074", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1085" } ], "opinion_index": 1 }, { "cite": "192 Ill. 2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453262 ], "year": 2000, "pin_cites": [ { "page": "522" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/192/0505-01" ] }, { "cite": "732 N.E.2d 1094", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1096" } ], "opinion_index": 1 }, { "cite": "314 Ill. App. 3d 1080", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140166 ], "year": 2000, "pin_cites": [ { "page": "1083" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/314/1080-01" ] }, { "cite": "783 N.E.2d 1076", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1080" } ], "opinion_index": 1 }, { "cite": "336 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599295 ], "year": 2003, "pin_cites": [ { "page": "600-01" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/336/0595-01" ] }, { "cite": "790 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "83" } ], "opinion_index": 1 }, { "cite": "339 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469240 ], "year": 2003, "pin_cites": [ { "page": "74" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/339/0067-01" ] }, { "cite": "806 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "654" } ], "opinion_index": 1 }, { "cite": "209 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462131 ], "year": 2004, "pin_cites": [ { "page": "112-13" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/209/0100-01" ] }, { "cite": "874 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2007, "pin_cites": [ { "page": "112" }, { "page": "112" } ], "opinion_index": 1 }, { "cite": "369 Ill. App. 3d 988", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267149 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "1002" }, { "page": "1002" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/369/0988-01" ] } ], "analysis": { "cardinality": 1213, "char_count": 36204, "ocr_confidence": 0.773, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14380568133508942 }, "sha256": "3dc97a471c9b7967398df5b4f08d7654e4b3ba3558527c616860a1b3c8c643ba", "simhash": "1:b6acb5945e46a924", "word_count": 5813 }, "last_updated": "2023-07-14T22:05:00.567552+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KIMBERLY A. PETRYSHYN, Plaintiff-Appellee, v. BARRY SLOTKY et al., Defendants-Appellants (OSF Health Care System, d/b/a St. Joseph Medical Center, Defendant)." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nThis case presents the question of whether a physician may be qualified to testify as an expert regarding the standard of care of a nurse who was a surgical team member. We hold that the physician in this case was so qualified.\nPlaintiff, Kimberly A. Petryshyn, sued defendants, Barry Slotky, M.D., S.C., and OSF Health Care System, d/b/a St. Joseph Medical Center, alleging medical malpractice, based on complications she suffered after undergoing a March 1999 cesarean-section surgery (hereinafter the C-section). St. Joseph Medical Center and Petryshyn later settled. Following a March 2007 trial, with Slotky as the sole defendant, a jury returned a verdict in his favor.\nIn April 2007, Petryshyn filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial, arguing that the trial court erred by admitting into evidence her expert physician\u2019s testimony \u2014 which she elicited in an evidence deposition \u2014 regarding the applicable nursing standard of care. Following an August 2007 hearing, the court granted her motion for a new trial.\nSlotky appeals the trial court\u2019s decision granting Petryshyn\u2019s motion for a new trial. We reverse.\nI. BACKGROUND\nIn March 1999, Petryshyn experienced labor pains and was admitted to St. Joseph Medical Center as Slotky\u2019s patient. Slotky placed an intrauterine pressure catheter (hereinafter IUPC) into Petryshyn\u2019s uterus to monitor the strength and frequency of her labor contractions. Because Petryshyn\u2019s labor was not progressing normally, Slotky performed a nonemergency C-section and successfully delivered Petryshyn\u2019s child.\nIn July 1999, Petryshyn first experienced an uncomfortable \u201cpoking\u201d or \u201cstabbing\u201d pain in her pelvic region. From April through July 2000, Petryshyn sought treatment from another physician on six different occasions, complaining of (1) extreme lower abdominal pain, (2) heavy bleeding, and (3) urinary and bowel pain. In August 2000, she again sought medical treatment for stabbing abdominal pains that had steadily increased in severity and frequency. A pelvic examination revealed that a \u201cpointy\u201d foreign object was protruding from her left vaginal wall. An ultrasound and X-ray later revealed that the foreign object, which contained an electronic connecting wire, was inside Petryshyn\u2019s pelvis. The foreign object was later removed and identified as an 11.3-centimeter portion of an IUPC.\nPetryshyn sued Slotky and St. Joseph Medical Center, alleging medical malpractice. As earlier noted, prior to trial, Petryshyn settled with St. Joseph Medical Center, which is not a party to this appeal.\nIn February 2007, David M. Priver, a board-certified physician in obstetrics and gynecology with 33 years of experience, testified as Petryshyn\u2019s expert in an evidence deposition. At a March 2007 hearing (immediately prior to the jury trial) which occurred after Petryshyn settled with St. Joseph Medical Center, Petryshyn moved to disavow the portion of Priver\u2019s evidence deposition testimony that pertained to the nursing standard of care. Because Slotky had previously disclosed to Petryshyn that he adopted Priver\u2019s opinion testimony pursuant to Supreme Court Rule 213 (210 Ill. 2d R. 213), he sought to introduce the testimony Petryshyn moved to disavow pursuant to Supreme Court Rule 212(c) (210 Ill. 2d R. 212(c)). See Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 1001, 874 N.E.2d 100, 111 (2007), quoting Prince v. Hutchinson, 49 Ill. App. 3d 990, 995, 365 N.E.2d 549, 552 (1977) (\u201c \u2018An evidence deposition is not the \u201cproperty\u201d of the party who takes it, and any portion of an evidence deposition may be offered by either side\u2019 \u201d). Petryshyn objected, arguing that Priver\u2019s testimony concerning the nursing standard of care \u2014 testimony that she elicited on direct examination in the evidence deposition \u2014 was inadmissible under the decision of the Supreme Court of Illinois in Sullivan v. Edward Hospital, 209 Ill. 2d 100, 119, 806 N.E.2d 645, 657 (2004). After considering the parties\u2019 arguments, the court overruled Petryshyn\u2019s objection, finding that Priver\u2019s testimony regarding the nursing standard of care was \u201cintegrally related\u201d to the functions of the surgical \u201cteam.\u201d The record shows that the \u201csurgical team\u201d involved in Petryshyn\u2019s C-section consisted of two nurses and Slotky.\nOn direct examination, Priver testified that a pregnant patient\u2019s overall labor status is monitored through an IUPC. Priver explained that an IUPC has an electronic pressure sensor that is inserted into the patient\u2019s uterine cavity through the birth canal and cervix to monitor (1) uterine-contraction duration and (2) the fetus\u2019 heartbeat. Additionally, the IUPC contains an internal wiring device that connects the pressure sensor to an external recording device. Priver also stated that although a physician inserts the IUPC in the uterus, it is normally removed by a nurse prior to childbirth.\nPriver further explained that a C-section is a surgical procedure involving a small initial incision in the patient\u2019s lower abdomen. The initial incision is usually extended by using \u201cbandage scissors,\u201d so called because they are blunt instruments that do not harm a patient\u2019s internal organs. Priver stated that following the C-section, the operating room staff typically performs a \u201csponge and instrument count\u201d to confirm that no foreign objects remain in a patient\u2019s body. Priver opined that if a foreign object were to remain in a patient\u2019s body, it could cause infection, pain, and hemorrhaging.\nPriver reviewed Petryshyn\u2019s medical records and depositions and opined that within a reasonable degree of medical certainty, (1) the IUPC (a) had not been removed when Petryshyn\u2019s C-section began and (b) was cut by bandage scissors as Slotky extended the initial incision, (2) approximately 10 centimeters of the IUPC remained inside Petryshyn\u2019s uterus after the C-section, (3) the retained portion of the IUPC would have been discovered if Slotky had manually examined Petryshyn\u2019s uterus, and (4) Slotky violated the physician\u2019s standard of care by (a) allowing the IUPC to remain in Petryshyn\u2019s uterus and (b) failing to check the uterus before closing the C-section incision. Priver based his last opinion on the fact that the labor-and-delivery records contained no showing that Slotky had conducted a manual examination of Petryshyn\u2019s uterus.\nPriver also opined that within a reasonable degree of medical certainty, the nurses violated their standard of care by not inspecting the IUPC to ensure that it was intact before discarding it. Priver further testified that if the nurses had seen that the IUPC was not intact, it would have been within their standard of care to communicate their inspection results to Slotky.\nOn cross-examination, Priver acknowledged that (1) although Slotky had placed the IUPC in Petryshyn\u2019s uterus, the medical records did not identify who removed the portion of the IUPC that did not remain in Petryshyn\u2019s uterus and (2) a manual examination of the uterus is not always noted in the labor-and-delivery records. (Slotky testified that he did perform a manual examination of Petryshyn\u2019s uterus, even though he did not so note in the labor-and-delivery records.)\nIn Slotky\u2019s closing argument, he reminded the jury that Petryshyn\u2019s expert, Priver, testified that the operating room nurses failed to perform their required duties to (1) remove the IUPC prior to the C-section, (2) inspect all of the operating room equipment following the C-section, and (3) report to Slotky if any of the equipment was not intact. Essentially, Slotky argued that because Petryshyn\u2019s own expert testified that the nurses failed to perform their duty, it was not appropriate for the jury to hold him liable for Petryshyn\u2019s injuries, given that the nurses violated their standard of care. The jury later returned a verdict in Slotky\u2019s favor.\nIn April 2007, Petryshyn filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial, arguing that the trial court erred by allowing Priver\u2019s testimony regarding the applicable nursing standard of care. Following an August 2007 hearing on Petryshyn\u2019s motion, the court granted the motion for a new trial, concluding that, based upon the authority of Garley v. Columbia LaGrange Memorial Hospital, 351 Ill. App. 3d 398, 813 N.E.2d 1030 (2004), the court had erred by permitting the jury to hear the portion of Priver\u2019s testimony regarding the nursing standard of care.\nThis appeal followed.\nII. ANALYSIS\nA. The Standard of Review\nSlotky argues that the appropriate standard of review is de novo because the trial court erred as a matter of law by relying on Garley, which does not accurately reflect the current state of the law. Petryshyn responds that this court\u2019s review is under the abuse-of-discretion standard. We agree with Petryshyn.\nA trial court\u2019s determination to grant or deny a new trial will not be disturbed absent an abuse of discretion. Smith v. Silver Cross Hospital, 339 Ill. App. 3d 67, 74, 790 N.E.2d 77, 84 (2003); see also Lisowski v. MacNeal Memorial Hospital Ass\u2019n, 381 Ill. App. 3d 275, 283, 885 N.E.2d 1120, 1130 (2008) (where the First District, using the abuse-of-discretion standard, reversed the trial court\u2019s order for a new trial in a medical-malpractice case). \u201c \u2018 \u201cAbuse of discretion\u201d means clearly against logic; the question is not whether the appellate court agrees with the [trial] court, but whether the [trial] court acted arbitrarily, without employing conscientious judgment,\u2019 \u201d or whether, considering all the circumstances, the court acted unreasonably and ignored recognized principles of law, which resulted in substantial prejudice. Long v. Mathew, 336 Ill. App. 3d 595, 600, 783 N.E.2d 1076, 1080 (2003), quoting State Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083, 732 N.E.2d 1094, 1096 (2000).\nB. The Evolution of an Expert Physician\u2019s Testimony Regarding a Health-Care Professional\u2019s Standard of Care\n1. The Licensing Requirement\nIn Dolan v. Galluzzo, 77 Ill. 2d 279, 281, 396 N.E.2d 13, 15 (1979), the question before the Supreme Court of Illinois was whether a physician, surgeon, or other medical expert not licensed as a podiatrist could testify to the standard of care a podiatrist owes to his patient. The supreme court held that as a matter of first impression, (1) \u201cto testify as an expert on the standard of care in a given school of medicine, a witness must be licensed therein\u201d and (2) after the licensing requirement has been established, the trial court has the discretion to \u201cdetermine if the witness is qualified to testify as an expert regarding the standard of care.\u201d Dolan, 77 Ill. 2d at 285, 396 N.E.2d at 16. In so holding, the supreme court stated that the rationale behind the licensing requirement was that different schools of medicine have varying tenets and practices, and allowing a practitioner of one school of medicine to testify to the care and skill of another practitioner from a different school of medicine would result in inequities. Dolan, 77 Ill. 2d at 283, 396 N.E.2d at 16. Thus, \u201c[t]he practitioner of a particular school of medicine is entitled to have his conduct tested by the standards of his school.\u201d Dolan, 77 Ill. 2d at 283, 396 N.E.2d at 16.\n2. The Exception to the Licensing Requirement\nIn Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896, 903-04, 686 N.E.2d 722, 727 (1997), three expert physicians testified that a nurse deviated from her standard of care by failing to properly communicate the condition of a pregnant patient to the treating physician. Because the nurse failed to communicate her observations to the physician, the testifying experts opined that the nurse\u2019s deviation from her standard of care resulted in the patient\u2019s baby being born with brain damage. Wingo, 292 Ill. App. 3d at 903-04, 686 N.E.2d at 727.\nThe Second District in Wingo concluded that Dolan\u2019s licensing requirement did not apply to the facts of the case based on the following rationale:\n\u201c[Dolan] indicate[s] that the reason for the [licensing requirement] is to prevent a higher standard of care being imposed upon the defendant and to ensure that the testifying expert has expertise in dealing with the patient\u2019s medical problem and treatment and that the allegations of negligence are within the expert\u2019s knowledge and observation. Those concerns have not been sacrificed here. In [this] case, the allegations of negligence against [the] nurse 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 *** [where] there would be a different standard [of care] between [a] physician and another school of medicine. Furthermore, it was established that the allegations of negligence were well within the testifying doctors\u2019 knowledge and experience. We believe that a physician should be entitled to testify about what he or she is 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.\u201d (Emphasis added.) Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729.\n3. The Supreme Court\u2019s Decision in Sullivan\nIn Sullivan, 209 Ill. 2d at 119, 806 N.E.2d at 657-58, the Supreme Court of Illinois barred a physician\u2019s expert testimony, holding that physicians cannot testify regarding (1) the standard of care for nursing procedures or (2) a nurse\u2019s deviation from her standard of care. In doing so, the supreme court reaffirmed Dolan\u2019s licensing requirement. Sullivan, 209 Ill. 2d at 113, 806 N.E.2d at 654. The supreme court in Sullivan also discussed some cases since Dolan, specifically focusing on Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986).\nIn Purtill, an expert physician\u2019s affidavit stated that the treating physician deviated from his standard of care by failing to diagnose and treat the plaintiffs medical condition. Purtill, 111 Ill. 2d at 238, 489 N.E.2d at 870. The trial court granted the physician\u2019s motion (1) to strike the expert\u2019s affidavit and (2) for summary judgment, finding that the expert had failed to demonstrate he was familiar with the standard of care in the treating physician\u2019s geographical location or similar location. Purtill, 111 Ill. 2d at 238-39, 489 N.E.2d at 870-71. Because the expert demonstrated that he was familiar with the minimum standards and that the standards were uniform throughout the country, the supreme court reversed the trial court\u2019s judgment and held that the expert physician was qualified to testify to the physician\u2019s standard of care. Purtill, 111 Ill. 2d at 250-51, 489 N.E.2d at 876-77. In so holding, the supreme court in Purtill clarified the test of an expert physician\u2019s qualifications to testify about a health-care professional\u2019s standard of care.\nSpecifically, the supreme court in Sullivan stated:\n\u201c \u2018In PurtillV, 111 Ill. 2d at 243, 489 N.E.2d at 872-73], this court articulated the requirements necessary to demonstrate an expert physician\u2019s 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, \u201cthe expert witness must show that he is familiar with the methods, procedures, and treatments ordinarily observed by other physicians, in either the defendant physician\u2019s community or a similar community.\u201d [Citation.] Once the foundational requirements have been met, the trial court has the discretion to determine whether a physician is qualified and competent to state his opinion as an expert regarding the standard of care. [Citation.]\u2019 \u201d Sullivan, 209 Ill. 2d at 112-13, 806 N.E.2d at 654, quoting Jones v. O\u2019Young, 154 Ill. 2d 39, 43, 607 N.E.2d 224, 225 (1992).\nThus, if the expert physician fails to satisfy either foundational requirement, he is not qualified to testify as an expert. Sullivan, 209 Ill. 2d at 113, 806 N.E.2d at 654.\nAs explained in Dolan, the rationale for the supreme court\u2019s prohibition regarding a physician\u2019s testimony pertaining to another health-care professional\u2019s standard of care stems from the court\u2019s concern that fairness requires the practitioner of a particular school of medicine to have his conduct tested by the standards of his school. Dolan, 77 Ill. 2d at 283, 396 N.E.2d at 16. Thus, when a physician does not have the requisite training or experience in the school of medicine about which she proposes to testify as an expert, the trier of fact should not hear that testimony. In other words, even though they are all physicians, orthopedic surgeons are not qualified to testify regarding the standard of care (and any alleged breach thereof) applicable to pediatricians; nor are radiologists qualified to testify regarding those subjects applicable to dermatologists; and so on. See Garley, 351 Ill. App. 3d at 409, 813 N.E.2d at 1040 (physicians were not qualified to testify to (1) the nurses\u2019 standard of care or (2) whether the nursing staff deviated from their standard of care); Alm v. Loyola University Medical Center, 373 Ill. App. 3d 1, 6, 866 N.E.2d 1243, 1248 (2007) (pathologist was not familiar with the methods, procedures, and treatments ordinarily observed by specialists in plastic surgery and anesthesiology to qualify as an expert).\nHowever, the supreme court in Sullivan noted Wzngo\u2019s limited exception to this licensing requirement. Specifically, the supreme court observed that the case before it was factually more similar to Dolan and its progeny than to Wingo. Sullivan, 209 Ill. 2d at 118-19, 806 N.E.2d at 657. That may explain why the supreme court in Sullivan expressly refused to discuss the merits of Wingo or to overrule it. Sullivan, 209 Ill. 2d at 119, 806 N.E.2d at 657. Indeed, in Petre v. Cardiovascular Consultants, S.C., 373 Ill. App. 3d 929, 942, 871 N.E.2d 780, 792 (2007), the First District reaffirmed that Wingo remained an appropriate precedent to follow. Specifically, the Petre court stated that \u201cWingo relieves a party of satisfying the licensing prong of the Purtill foundational test when the allegations of negligence concern communications between members of different schools of medicine acting as part of the same team.\u201d Petre, 373 Ill. App. 3d at 941, 871 N.E.2d at 792. However, the party offering the expert testimony still must satisfy Purtill\u2019s second prong by establishing that the negligence allegations were within the expert\u2019s knowledge and expertise. Petre, 373 Ill. App. 3d at 941, 871 N.E.2d at 792.\nC. The \u201cProviding-Medical-Care Continuum\u201d\nAs earlier stated, this case presents the question of whether a physician may be qualified to testify as an expert regarding the standard of care expected of a nurse who was a surgical team member. The pivotal analytical issue in answering this question depends on the nature of the interaction between a physician and a nurse as they provide medical care for the same patient. At one end of the \u201cproviding-medical-care continuum\u201d are cases like Sullivan and Garley, which focus separately on the specialized nature of the medical care being provided by the physician or nurse, rather than on the interaction between them, because that interaction is not intrinsically intertwined with the care that they are individually providing.\nIn the middle of the \u201cproviding-medical-care continuum\u201d are cases like Wingo, which recognize that the distinct and specialized procedures that a physician and nurse employ to effectively care for the same patient do not occur absent interactive communication. Thus, Wingo focused on the intrinsically intertwined interaction between a physician and nurse, albeit on the limited and narrow scope of communication, rather than focusing separately on the specialized nature of the medical care being provided by the physician or nurse.\nCases in the middle of the \u201cproviding-medical-care continuum\u201d typically involve allegations of negligence \u2014 such as a nurse\u2019s failure to communicate to a physician an issue that fell within her standard of care \u2014 which, in turn, had a negative impact upon the physician\u2019s ability to effectively treat the same patient. Because such allegations of negligence do not involve testimony concerning another health-care professional\u2019s standard of care or the breach of that care, Dolan\u2019s licensing requirement does not apply. Therefore, a physician may testify as in Wingo, provided that such testimony is within his knowledge and expertise.\nProgressing still further along the \u201cproviding-medical-care continuum\u201d is a case like the present one, which involves the intrinsically intertwined interaction between a physician and nurse when they are members of the same surgical team. Under this scenario, which is essentially on the opposite end of the \u201cproviding-medical-care continuum\u201d from the circumstances in Dolan, the physician and nurse, each responsible for their distinct and specialized responsibilities, interact as a team to substantially contemporaneously care for the same patient. This case is also distinguished from Wingo and the middle of the \u201cproviding-medical-care continuum\u201d because Wingo involved only communication between the physician and a nurse rather than the level of interaction required of a physician and nurse on the same surgical team.\nD. Priver\u2019s Expert Testimony Regarding the Standard of Care Expected of Surgical Team Members\nIn medical-malpractice cases, the basic question is who, if anyone, has deviated from his or her standard of care. This case is no different. Slotky and the nurses carried out their respective specialized duties as part of a surgical team to (1) prepare Petryshyn for the C-section, (2) perform the C-section, and (3) conduct the postoperative care. During that time, something happened to Petryshyn that should not have happened \u2014 that is, a portion of the IUPC remained in her body after the C-section. Given that error, the parties were entitled to present evidence and argument concerning which, if any, member of the surgical team departed from his or her standard of care.\nIn this case, Priver was a board-certified physician in obstetrics and gynecology with 33 years of experience who performed an average of 30 to 40 C-sections per year. Thus, he had the requisite expertise and knowledge regarding the responsibilities of the individual surgical team members involved in such procedures. In his evidence deposition, Priver testified, in part, that (1) in preparing a patient for the C-section, the IUPC is normally removed by nurses, (2) the IUPC had not been removed when Petryshyn\u2019s C-section began, (3) a nurse\u2019s postoperative responsibilities include (a) performing a \u201csponge and instrument count\u201d and (b) inspecting the instruments used during the C-section to ensure they remained intact, and (4) if the nurses had seen that the IUPC was not intact, it would have been within their standard of care to communicate their inspection results to Slotky. Essentially, Priver\u2019s testimony pertains to a physician\u2019s and nurse\u2019s distinct and specialized responsibilities as surgical team members and the intrinsically intertwined interaction between those responsibilities as the physician and nurse care for the same patient.\nUnder the circumstances in this case, Priver was qualified to testify as an expert that (1) a surgical team physician conducting a C-section relies on communication from nurse team members regarding the patient\u2019s care and (2) the failure to communicate information about the patient was a breach of the nurse\u2019s standard of care.\nIn its initial pretrial ruling, the trial court characterized Priver\u2019s testimony as follows:\n\u201cI think we are dealing with integrally[ ] related obligations within the standard of care according to [Priver] that says it\u2019s the nurse[\u2019]s obligation to do that and I know this because I have been on this team situation for many years, done it many times and it\u2019s the nurse\u2019s obligation to do the count or to inspect the instruments and then communicate accordingly.\u201d\nLater, at the hearing on Petryshyn\u2019s motion for a new trial, the court explained its rationale for permitting the jury to hear Priver\u2019s testimony as follows:\n\u201cIt was apparent to me at that time that the communication protocol was a significant one that [Slotky] ought to be able to produce evidence about, because professionals rely upon other members of the team communicating to them and tied in with the defense theory of this case that it was someone else\u2019s fault, someone else\u2019s duty, someone else\u2019s breach of duty[,] and someone else\u2019s conduct that proximately caused the injuries to [Petryshyn].\u201d\nHowever, the court nonetheless ruled that it should not have admitted Priver\u2019s testimony regarding the nurses\u2019 standard of care and granted Petryshyn\u2019s motion for a new trial. We conclude that the trial court\u2019s characterization of Priver\u2019s testimony and the rationale for its initial ruling was correct and consistent with this court\u2019s analysis.\nThe rationale underlying Sullivan was not implicated in this case. Accordingly, we conclude that the trial court abused its discretion by granting Petryshyn\u2019s motion for a new trial.\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s order granting a new trial.\nReversed.\nKNECHT, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE COOK,\ndissenting:\nI respectfully dissent and would affirm the decision of the trial court.\nOn March 4, 1999, Plaintiff Petryshyn went into labor and was admitted to St. Joseph Medical Center under the care of defendant Dr. Slotky. As a part of Petryshyn\u2019s care during labor, Dr. Slotky inserted an IUPC into her uterus. Thereafter the decision was made to perform a nonemergency C-section, during which the IUPC was cut, leaving an approximately 11.3-centimeter portion of the IUPC in Petryshyn\u2019s uterus. Petryshyn continued to experience pain until the IUPC was discovered and removed by Dr. Vincente Colon in August 2000. In 2004, Petryshyn filed this lawsuit against Dr. Slotky and St. Joseph Medical Center, which employed the nurses. Shortly before the trial began, in March 2007, St. Joseph Medical Center settled and was dismissed from the lawsuit.\nThe evidence deposition of Petryshyn\u2019s expert, Dr. Priver, was taken in February 2007, before St. Joseph settled out. Dr. Priver opined that (1) the IUPC was cut by Dr. Slotky as he performed the C-section, (2) the remaining portion would have been discovered if Slotky had manually examined Petryshyn\u2019s uterus, and (3) Slotky violated the physician\u2019s standard of care by failing to properly check the uterus before closing the C-section incision. Dr. Priver also opined that the nurses violated their standard of care by not inspecting the IUPC to ensure that it was intact before discarding it. At trial, as the nurses were no longer part of the case, Petryshyn chose not to introduce the portion of Priver\u2019s deposition testimony that the nurses violated their standard of care. However, upon Slotky\u2019s request, the trial court required the testimony to be admitted.\nIn closing argument, defense counsel misrepresented Priver\u2019s testimony to say the nurses violated their standard of care by not removing the catheter before the C-section and by not telling Dr. Slotky about it. After seeing how Driver\u2019s testimony was used during trial, the trial court decided the testimony should not have been admitted and ordered a new trial. The trial court believed the jury would have ruled differently if the evidence had not been admitted: \u201cI can relate back to my recollection at the time of closing argument as to how strong an argument was made by [defense counsel] when he pointedly took the nurses to task, took the demeanor of one of the nursing witnesses to be almost tantamount to a confession.\u201d \u201cI have to believe that based upon those recollections, that that argument had its intended effect.\u201d Defense counsel had argued:\n\u201cIs it appropriate? Is it appropriate for the jury to hold Dr. Slotky responsible because [nurse] Marla Newman didn\u2019t do her job? All I could think of when I was listening to Dr. Driver\u2019s testimony was how much he talked about the nurses. How the nurses failed. I wrote these things down. Almost every time, the nurses take out the IUDC. This is plaintiff\u2019s expert, ladies and gentlemen. This isn\u2019t the defense expert.\u201d\nHow was it even relevant whether the nurses were negligent? The question was whether Dr. Slotky was negligent. More than one person may be to blame for causing an injury. If Dr. Slotky was negligent and his negligence was a proximate cause of the injury to plaintiff, it is not a defense that the nurses may also have been to blame. Illinois Dattern Jury Instructions, Civil, No. 12.04 (3d ed. 1989) (hereinafter IDI Civil 3d No. 12.04). A defendant is not allowed to divert the jury\u2019s attention from his negligence by dirtying up an absent defendant.\nSlotky asked the trial court to give the second paragraph of IDI Civil 3d No. 12.04, that the jury should rule for the defendant if it decides \u201cthat the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant.\u201d (Emphasis added.) That instruction, however, should be used only where there is evidence to show that the sole proximate cause of the occurrence was the conduct of a third person. IDI Civil 3d No. 12.04, Notes on Use, at 12 \u2014 9. Where the defendant never argued or presented evidence that \u201conly\u201d the negligence of persons other than the defendant proximately caused the plaintiff\u2019s injury, the sole-proximate-cause instruction is properly refused. McDonnell v. McPartlin, 192 Ill. 2d 505, 522, 736 N.E.2d 1074, 1085 (2000). A sole-proximate-cause instruction is not appropriate unless there is evidence that the sole proximate cause (not a proximate cause) of a plaintiff\u2019s injury is the conduct of another person or condition. Holton v. Memorial Hospital, 176 Ill. 2d 95, 134, 679 N.E.2d 1202, 1219 (1997).\nThe Supreme Court of Illinois held that a sole-proximate-cause instruction was properly given in Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101, 658 N.E.2d 450, 459 (1995), but that was a case where two physicians disagreed over how to proceed. The treating physician had countermanded the resident\u2019s order to test blood gases. The resident was required to follow the treating physician\u2019s orders, and the treating physician was accordingly alleged to have been the sole proximate cause of the injury. Either the treating physician was the proximate cause or the resident was the proximate cause, but not both. Leonardi, 168 Ill. 2d at 97, 658 N.E.2d at 457. Leonardi is nothing like the present case, where there was no disagreement, where the operating surgeon simply complained that his subordinates failed to discover his mistake. Evidence that the nurses were negligent does not mean that Dr. Slotky was not negligent. Even if the nurses were negligent, the injury would not have occurred if Dr. Slotky had properly checked the uterus before closing the C-section incision. Leonardi involved a situation where the physician giving orders was argued to be the sole proximate cause. The present case involves the converse, where the physician giving orders argues his subordinates are the sole proximate cause. A doctor may be held liable for the negligence of a hospital employee who is subject to the doctor\u2019s control or supervision. Foster v. Englewood Hospital Ass\u2019n, 19 Ill. App. 3d 1055, 1061, 313 N.E.2d 255, 260 (1974) (captain of the ship).\nDr. Slotky argues that Petryshyn is estopped from denying testimony which Petryshyn elicited at Dr. Priver\u2019s evidence deposition. A party taking an evidence deposition, however, may choose to use only a part of that deposition or not use the deposition at all. \u201cIf only a part of a deposition is read or used at the trial by a party, any other party may at that time read or use or require him to read any other part of the deposition which ought in fairness to be considered in connection with the part read or used.\u201d 210 Ill. 2d R. 212(c). The issue here, however, is not one of fairness or completeness, but whether Dr. Slotky may use an unconnected portion of an evidence deposition which Petryshyn chose not to use.\nThe Adams case, cited by the majority, actually refused to allow the party not taking the deposition to use a portion of the deposition that was not \u201cconnected\u201d to the part of the deposition that was admitted, because it involved cross-examination beyond the scope of plaintiff\u2019s direct. Adams, 369 Ill. App. 3d at 1002, 874 N.E.2d at 112. \u201cDefendants apparently chose not to depose Dr. Strasberg directly.\u201d Adams, 369 Ill. App. 3d at 1002, 874 N.E.2d at 112. There is a similar concern in the present case. There may have been no problem if Dr. Slotky wanted to take Dr. Priver\u2019s testimony and introduce it. It was unfair, however, to force Petryshyn to introduce Dr. Priver\u2019s testimony and for Dr. Slotky then to argue, \u201cThis is the plaintiffs expert, ladies and gentlemen. This isn\u2019t the defense expert. This is plaintiff\u2019s expert.\u201d Dr. Priver\u2019s testimony on nursing standards of care was elicited when the nurses were part of the lawsuit and was not part of plaintiffs testimony against Dr. Slotky. There was no reason for Petryshyn to introduce it after St. Joseph Medical Center settled out. It was Dr. Slotky who chose to present the testimony in a strategy to blame the nurses.\nA physician who is not a licensed nurse cannot testify as to nursing standards of care. Sullivan, 209 Ill. 2d at 112-13, 806 N.E.2d at 654. Wingo involved a situation where a nurse observed the patient leaking fluid, but she failed to communicate this to the doctor. Perhaps a physician should be entitled to testify about what he or she is entitled to rely upon in the area of communication from a nurse, but the Wingo exception should not be allowed to swallow up the rule that the expert must be a licensed member of the school of medicine about which he proposes to testify. Every time a nurse violates her standard of care she should communicate that to the attending physician, but that does not mean that physicians may testify about every violation of the standard of care by a nurse. In this case, Dr. Priver testified to a specific nursing violation of the standard of care: the nurses did not inspect the IUPC to ensure that it was intact before discarding it. If that duty did not exist, there was no duty to communicate.\nThe trial judge observes the witnesses and is in a better position to determine whether a jury verdict is against the manifest weight of the evidence than is the reviewing court. Maple v. Gustafson, 151 Ill. 2d 445, 455-56, 603 N.E.2d 508, 513 (1992). A trial court\u2019s grant of a new trial accordingly will not be disturbed absent an abuse of discretion. Smith, 339 Ill. App. 3d at 74, 790 N.E.2d at 83. \u201c \u2018[T]he question is not whether the appellate court agrees with the [trial] court, but whether the [trial] court acted arbitrarily, without employing conscientious judgment ***.\u2019 \u201d Long, 336 Ill. App. 3d at 600-01, 783 N.E.2d at 1080, quoting State Farm Fire & Casualty Co., 314 Ill. App. 3d at 1083, 732 N.E.2d at 1096. How can we say that a trial court acted arbitrarily, without employing conscientious judgment, when it grants plaintiff a new trial in a medical-malpractice case where an object was left in plaintiffs body following surgery? Rather than being an abuse of discretion, this seems to be res ipsa loquitor.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "Karen L. Kendall (argued), of Heyl, Royster, Voelker & Allen, of Peoria, and Peter W Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellants.", "Timothy W. Kelly, of Kelly Law Offices, P.C., of Bloomington, and Hrant Norsigian, Jr. (argued), of Norsigian Law Office, of O\u2019Fallon, for appellee." ], "corrections": "", "head_matter": "KIMBERLY A. PETRYSHYN, Plaintiff-Appellee, v. BARRY SLOTKY et al., Defendants-Appellants (OSF Health Care System, d/b/a St. Joseph Medical Center, Defendant).\nFourth District\nNo. 4 \u2014 07\u20140754\nArgued April 16, 2008.\nOpinion filed July 29, 2008.\nRehearing denied September 11, 2008.\nCOOK, J., dissenting.\nKaren L. Kendall (argued), of Heyl, Royster, Voelker & Allen, of Peoria, and Peter W Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellants.\nTimothy W. Kelly, of Kelly Law Offices, P.C., of Bloomington, and Hrant Norsigian, Jr. (argued), of Norsigian Law Office, of O\u2019Fallon, for appellee." }, "file_name": "1112-01", "first_page_order": 1128, "last_page_order": 1141 }