Caldwell v. Advocate Condell Med. Ctr.

2017 IL App (2d) 160456

87 N.E.3d 1020

Judith CALDWELL, Individually and as Special Administrator of the Estate of Jeannette M. DeLuca, Plaintiff-Appellant,

v.ADVOCATE CONDELL MEDICAL CENTER, Defendant-Appellee.

No. 2-16-0456

Appellate Court of Illinois, Second District.

Opinion filed October 4, 2017

Charles J. Thut, of Noonan, Perillo & Thut Ltd., of Waukegan, for appellant.

Tanya B. Park and Julie A. Teuscher, of Cassiday Schade LLP, of Chicago, for appellee.

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Judith Caldwell, individually and as special administrator of the estate of Jeannette M. DeLuca, appeals from the trial court's order entering a jury verdict in favor of defendant, Advocate Condell Medical Center (Condell). On appeal, Caldwell argues that several errors occurred below in this medical-malpractice action: (1) the trial court erred in allowing two expert witnesses to testify that DeLuca, Caldwell's mother, had both sets of her dentures in her mouth when she choked on food and died following surgery at Condell; (2) the trial court erred in allowing the evidence deposition of one of Condell's nurses into evidence; (3) the trial court erred in sustaining Condell's objection on the ground of attorney-client privilege during that deposition; (4) Condell's counsel violated the Petrillo doctrine ( Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952 (1986) ) when she conducted an ex parte meeting with one of Condell's former employees; and (5) the trial court erred in refusing to grant Caldwell a "missing witness" jury instruction. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The record reflects that on March 5, 2014, Caldwell filed a medical-malpractice action against Condell after 92-year-old DeLuca choked on food and died while receiving medical care from Condell on April 23, 2013. Specifically, Caldwell claimed that Condell, through its agents, failed to adequately monitor DeLuca postoperatively, allowed her to eat without ensuring that her dentures were in her mouth, and failed to ensure that she was recovered from surgery sufficiently to consume food.

¶ 4 A. Pretrial Proceedings

¶ 5 Before trial, Caldwell's counsel sent a notice to Condell for the discovery deposition of Kathleen Likosar, a nurse manager at Condell. The notice was dated October 20, 2014, and in it, counsel asked Condell's counsel to produce Likosar for her deposition on October 30, 2014. Caldwell's counsel later sent an amended notice for Likosar's deposition on December 9, 2014. Likosar's deposition occurred on December 9, 2014. During that deposition, Condell's counsel objected on the ground of attorney-client privilege to Caldwell's questioning of Likosar about conversations between Likosar and Condell's counsel.

¶ 6 About 30 to 45 days before trial, Condell's counsel contacted Caldwell's counsel to inform him that Likosar was retiring and moving to Arizona and that they would need to set up an evidence deposition. On February 9, 2016, Condell's counsel emailed Caldwell's counsel about setting up Likosar's evidence deposition for February 12, 2016. Caldwell's counsel agreed to that date, and the videotaped evidence deposition occurred on February 12, 2016. At that deposition, Caldwell's counsel complained that he never received a notice of the evidence deposition, but he admitted that he agreed to come to the deposition after being notified via telephone. Caldwell's counsel also argued that he never received notice that the deposition was going to be videotaped. Counsel repeated his objection before he cross-examined Likosar, and he said that the deposition was "being taken without notice as required by supreme court rule." As in the discovery deposition, when Caldwell's counsel questioned Likosar about the substance of conversations between Condell's counsel and Likosar, Condell's counsel objected on the ground of attorney-client privilege. Caldwell's counsel did not take issue with that objection and instead responded merely by saying, "okay," "all right," and "that's fine." Caldwell's counsel also never sought a ruling on the privilege objection.

¶ 7 Before trial began, Caldwell moved to bar Likosar's evidence deposition. Caldwell argued that her counsel had received improper notice of the evidence deposition and no notice of Condell's intention to videotape that deposition. Caldwell also objected to Condell's assertion of the attorney-client privilege for any conversations between Condell's counsel and Likosar. Caldwell argued that Likosar was not a member of Condell's "control group" and that the communications between Likosar and Condell's counsel that occurred immediately prior to her evidence deposition were not protected by the attorney-client privilege, because Likosar's employment with Condell had ceased before then.

¶ 8 In response, Condell's counsel agreed to forgo use of the videotape. In resolving the remainder of Caldwell's notice objections, the court reviewed the email exchanges between the parties. On February 9, 2016, Condell's counsel sent Caldwell's counsel an email saying, "I want to set Likosar's evidence dep for my case for Friday, 2/12/16 at 10 a.m. at Condell. I think you said that works for you ... can you confirm?" Caldwell's counsel responded that the date "work[ed] for Likosar."

¶ 9 With regard to the objections based upon the attorney-client privilege, Condell argued that Likosar was an agent of Condell and a nurse who was insured under Condell's self-insured trust, both at the time of her care of DeLuca and when she gave her discovery deposition. Also, Likosar established these facts in an affidavit. Finally, Condell argued that, when Likosar gave her discovery deposition, the allegations in Caldwell's complaint had placed Likosar's care of DeLuca at issue.

¶ 10 The trial court found that, absent any case law to the contrary, and Caldwell had submitted none, Likosar's retirement between her discovery and evidence depositions did not determine her status for the purpose of the attorney-client privilege. Therefore, the trial court denied Caldwell's motion to bar Likosar's evidence deposition on the lack-of-privilege ground, as well as the lack-of-notice ground.

¶ 11 Caldwell then moved to bar the opinions of Condell's experts, Dr. Rachael Oosterbaan and nurse Faye Kopplin, that DeLuca had both sets of dentures in her mouth when she ate breakfast on April 23, 2013. At Oosterbaan's discovery deposition she testified that, in her opinion, DeLuca had both sets of dentures in her mouth, based upon the fact that DeLuca was a "perfectly capable woman who would have asked for her lower dentures when she started eating" and that she was a "cognitively intact woman." When asked whether she was speculating that both sets of dentures were in DeLuca's mouth when she ate breakfast, Oosterbaan said that, based upon the evidence, it was safe to say that the lower dentures were in place. This opinion was based specifically upon her interpretation of the facts in the depositions and in DeLuca's medical chart.

¶ 12 At Kopplin's discovery deposition, she testified that, in her opinion, DeLuca's lower dentures more likely than not stayed in her mouth while she was at Condell. Her opinion was based upon several factors, including that DeLuca was alert and oriented, had managed her own dentures for over 40 years, and would have asked for her dentures if they were missing; further, if she had asked for her dentures, that information would have been noted in her medical chart. Kopplin also noted that DeLuca's chart created a timeline of what transpired with her upper and lower dentures. The upper dentures were removed for DeLuca's surgery and reinserted in the recovery area, or "Post-Anesthesia Care Unit" (PACU). There was no indication in the chart that DeLuca's lower dentures were ever removed. Kopplin opined that, based upon her experience with elderly patients, the first thing that they request when they wake up from anesthesia is their dentures. In addition to reviewing DeLuca's medical records, Kopplin had also reviewed the deposition testimony of all the witnesses in this case. Kopplin opined, to a reasonable degree of medical certainty, that DeLuca's lower and upper dentures were in her mouth when she ate her breakfast on April 23, 2013.

¶ 13 The trial court denied Caldwell's request to exclude Oosterbaan's and Kopplin's opinions.

¶ 14 B. Trial Proceedings

¶ 15 At trial, Caldwell testified that, on April 22, 2013, she arrived home around 5 p.m. and found DeLuca sitting in a chair with a bump on her head and a very red eye. DeLuca said that she could not see out of that eye, because she had hit her head. Caldwell called DeLuca's ophthalmologist, who directed them to the emergency room.

¶ 16 Caldwell and her husband took DeLuca to Condell, where she was seen in the emergency room. When they arrived, they were told that DeLuca should see Dr. Michael Savitt at his office. Savitt examined DeLuca and determined that surgery was necessary on DeLuca's eye. Caldwell took DeLuca back to Condell, arriving around 10:30 p.m. that night. DeLuca was admitted to floor 2-West at Condell. Prior to her admission, the last food DeLuca had consumed was at noon that day. Caldwell testified that DeLuca was very "vain" about her dentures and that she never wanted Caldwell to see her without her dentures in her mouth. Caldwell said that, even when she went into surgery, DeLuca would not take her dentures out before she was wheeled away from Caldwell. DeLuca was able to take care of her dentures by herself, and she never ate without her dentures in her mouth.

¶ 17 Caldwell said that Shannon Lunkenheimer checked DeLuca in on 2-West. Caldwell stayed with DeLuca until she was wheeled out of her room and taken to surgery. At that time, DeLuca had both her upper and lower dentures in her mouth. Caldwell testified that she had no idea if DeLuca's dentures were in place...