First Fin. Bank v. Osf Healthcare Sys.

2016 IL App (4th) 150503-U

FIRST FINANCIAL BANK, Successor in Interest to PONTIAC NATIONAL BANK,Administrator of the Estate of CHRISTIAN RIVERA, Deceased, Plaintiff-Appellant, v. OSF HEALTHCARE SYSTEM, d/b/a OSF MEDICAL GROUPand d/b/a ST. JOSEPH PROMPTCARE, Defendant-Appellee.

NO. 4-15-0503

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

June 10, 2016

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of McLean County

No. 05L58

Honorable Paul G. Lawrence, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Presiding Justice Knecht and Justice Appleton concurred in the judgment.

ORDER

¶ 1 Held: The circuit court neither violated the appellate court's mandate nor committed error by striking the proximate-cause testimony of plaintiff's expert on institutional negligence and granting summary judgment in defendant's favor on plaintiff's institutional-negligence claim.

¶ 2 Plaintiff, First Financial Bank, successor in interest to Pontiac National Bank, administrator of the estate of Christian Rivera, deceased, appeals the McLean County circuit court's May 18, 2015, judgment, barring the testimony of plaintiff's expert witness on institutional negligence, Dr. Robert Chabon, and granting judgment in defendant's favor on the institutional-negligence claim. On appeal, plaintiff contends the circuit court erred because (1) the semantics of medical-causation testimony is an issue of weight and not admissibility and (2) the court's judgment did not conform to the mandate of the appellate court in a prior appeal. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In April 2005, plaintiff filed a wrongful death and survival action, against defendant, OSF Healthcare System (OSF), doing business as both OSF Medical Group (Medical Group) and St. Joseph PromptCare (PromptCare), and numerous other defendants, who are no longer parties to the case. Rivera, the deceased, was three years old when he collapsed from cardiopulmonary arrest, which was caused by a massive mediastinal tumor wrapped around his airway. The cardiopulmonary arrest caused a severe brain injury, and Rivera passed away in August 2003. During the six-month period preceding Rivera's cardiopulmonary arrest, he had been evaluated and treated for respiratory symptoms at PromptCare, an urgent-care clinic, and Medical Group, a primary-care center, both of which were owned by OSF at the time. In the original complaint, plaintiff alleged OSF was vicariously liable for the acts of its agents or employees.

¶ 5 In July 2010, plaintiff filed a fifth amended complaint, adding a claim of institutional negligence. In December 2010, plaintiff amended the institutional-negligence claim (count V), asserting defendant committed several allegedly negligent acts. The negligent act alleged in paragraph 9(c) of count V of the December 2010 complaint was OSF had a policy of placing limitations on PromptCare physicians from providing longitudinal care, which unreasonably interfered with an employed physician's exercise and execution of his or her professional judgment in a manner that adversely affected the employed physician's ability to provide quality care to patients in contravention of section 10.8 of the Hospital Licensing Act (Act) (210 ILCS 85/10.8 (West 2010)).

¶ 6 On the day the jury trial was set to begin, defendant filed a motion for summary judgment on the institutional-negligence claim. The circuit court granted summary judgment infavor of defendant on only plaintiff's claim of institutional negligence as alleged in paragraph 9(c). At trial, the jury found in defendant's favor on the remaining claims. Plaintiff filed a posttrial motion, raising numerous claims of error at trial and contending the court erred by granting summary judgment on paragraph 9(c). The court denied plaintiff's posttrial motion, and plaintiff appealed.

¶ 7 On appeal, plaintiff argued the circuit court (1) issued erroneous rulings regarding the scope of cross-examination and the rehabilitation of plaintiff's expert witness, Dr. Finley Brown; (2) erred in hearing and granting an untimely motion for a summary judgment, and (c) erred in allowing a defense expert witness to offer opinions that were not disclosed more than 60 days before the trial. Pontiac National Bank v. Vales, 2013 IL App (4th) 111088, ¶ 1, 993 N.E.2d 463. The appellate court found the circuit court's rulings regarding the cross-examination and the rehabilitation of Dr. Brown were erroneous and a new trial was appropriate. Vales, 2013 IL App (4th) 111088, ¶ 21, 993 N.E.2d 463. The appellate court also found the use of a publication to cross-examine Dr. Brown about his earnings from his consulting work should not be permitted on retrial. Vales, 2013 IL App (4th) 111088, ¶ 25, 993 N.E.2d 463. As to the summary judgment, the court found the summary judgment motion should have been denied in its entirety because it was brought on the eve of trial without adequate notice to plaintiff. Vales, 2013 IL App (4th) 111088, ¶ 28, 993 N.E.2d 463. Additionally, the appellate court addressed paragraph 9(c) and found the following:

"If the jury accepts the plaintiff's position, it could reasonably find or infer that OSF's policy restricting PromptCare physicians from providing longitudinal care unreasonably interfered with PromptCare physicians' exercise of independent clinical judgmentin diagnosing and treating patients, in violation of section 10.8 of the Act, where that policy, taken together with OSF's practice of authorizing OSF Medical Group personnel to reroute its primary care patients who did not have appointments to a PromptCare facility, effectively prevented PromptCare physicians from accessing the primary care records of and providing continuity of care to returning walk-in patients, such as Christian Rivera. Based on the record, the entry of a summary judgment on allegation (c) was improper and is hereby set aside." Vales, 2013 IL App (4th) 111088, ¶ 31, 993 N.E.2d 463.

Moreover, as to the last issue regarding the timeliness of the disclosure of expert opinions, the appellate court noted that, on remand, the circuit court and the parties would "have an opportunity to set specific dates for the completion of any additional discovery, the disclosure of opinions of witnesses, and the filing of dispositive motions." Vales, 2013 IL App (4th) 111088, ¶ 32, 993 N.E.2d 463.

¶ 8 On remand, plaintiff filed an amended complaint in February 2014. Then, in May 2014, plaintiff filed a second amended complaint. The second amended complaint was only against OSF and asserted vicarious liability and institutional negligence claims. The allegations of institutional negligence were defendant had the following undisclosed policies: (1) referring primary care patients without appointments to PromptCare, but not giving PromptCare access to the Medical Group records; (2) placing limitations on PromptCare physicians from providing longitudinal care, which is medical care over a period of time, thereby limiting the patients' history and/or patients' charting to said physicians and physician assistants; and (3) placinglimitations on PromptCare physicians from providing longitudinal care, thereby unreasonably interfering with an employed physician's exercise and execution of his or her professional judgment in a manner that adversely affected the employed physician's ability to provide quality care to patients in contravention of section 10.8 of the Act. Additionally, plaintiff abandoned Dr. Brown as its expert witness and retained Dr. Chabon.

¶ 9 In December 2014, defendant filed a motion for summary judgment as to the first allegation of institutional negligence, which concerned the referral of Medical Group patients to PromptCare. In February 2015, the circuit court denied the motion, noting it was a close issue and referring to Dr. Chabon's written disclosures in addition to his discovery deposition. On May 1, 2015, defendant filed a motion to bar, inter alia, the trial testimony of Dr. Chabon and Dr. Claudio Sandoval, asserting they were not qualified to testify to the matters in this case. At a May 5, 2015, hearing, the court denied defendant's motion. At the same hearing, defendant made an oral motion to bar Dr. Chabon's testimony in his April 27, 2015, evidence deposition about proximate causation regarding the institutional-negligence claim. After hearing some arguments by the parties, the court stated it would take the matter up the next day.

¶ 10 On May 6, 2015, the parties again argued the proximate-cause issue. The court agreed with defendant Dr. Chabon's testimony regarding proximate cause was uncertain and vague and granted defendant's motion to bar the testimony. After barring the testimony, plaintiff did not indicate any other use for Dr. Chabon's testimony or provide any other reason why summary judgment should not be entered on the institutional-negligence claim. Instead, plaintiff asked for findings under Illinois Supreme Court Rules 304(a) (eff. Feb. 26, 2010) and 308 (eff. Jan. 1, 2015). On May 15, 2015, the court held a hearing on the language of a written order memorializing the court's findings on May 6, 2015. A transcript of that hearing is not includedin the record on appeal. On May 18, 2015, the court entered its written order, barring Dr. Chabon's testimony and granting judgment in favor of defendant on the institutional-negligence claim. The May 18, 2015, order included a Rule 304(a) finding.

¶ 11 On June 12, 2015, plaintiff filed a timely notice of appeal in compliance with Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015). Accordingly, we have jurisdiction of this appeal under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).

¶ 12 II. ANALYSIS

¶ 13 A. Briefs

¶ 14 Defendant asserts plaintiff has forfeited review of its issues on appeal by failing to comply with Illinois Supreme Court Rule 341(h)(7) (eff. Feb....