Major Med-Mal Ruling Had Impact on Cases, Ethics

Burns Sullivan was under the care of a doctor at Edward Hospital for an apparent urinary tract infection.

He was paralyzed on his right side due to a stroke suffered two years earlier. He could not speak, nor could he walk unassisted.

While in the hospital, he attempted to get out of bed through the side rails at least three times on November 2, 1997. His nurse, Carrie Lewis, considered this to be a risk of harm and telephoned his doctor that evening to request a vest to tie him to the bed.

The doctor did not order restraints but rather prescribed Ativan – a medication with one possible side effect being dizziness – to calm him down. The patient settled down and fell asleep, and hospital personnel checked on him every half hour.

Shortly after midnight, he was found on the floor, his head in a pool of blood, having suffered a subdural hematoma.

His wife, Juanita, filed a lawsuit against the hospital and the primary treating doctor. She supported her complaint with a physician’s certificate of merit, as required in this state, that opined defendants had "deviated from the acceptable standards of medical care by disregarding Mr. Burns Sullivan’s status as a Level II fall risk."

At trial, Dr. William Barnhart testified as plaintiff’s expert witness, having been board certified in internal medicine since 1974, with a certificate of added qualifications in geriatric medicine. He had practiced at various hospitals for 25 years and had "substantial experience in working with doctors and nurse in patient fall protection." Sullivan v. Edward Hospital, 335 Ill.App.3d 265, 269, 781 N.E. 2d 649 (2d Dist. 2002).

He testified he had been performing peer review for doctors and hospitals for years. These included nurses. At trial, the court struck Dr. Barnhart’s testimony regarding the nurse’s failure to properly communicate the patient’s condition to the doctor on the basis of Supreme Court Rule 213(g). In granting defendant hospital’s motion for a directed verdict, the trial court held that Dr. Barnhart’s opinions about nurse communication issues were not properly disclosed during pretrial discovery. Most significantly, the trial court ultimately struck the entire testimony of Dr. Barnhart on the grounds that "a physician is incompetent to testify to the standard of care placed upon a licensed nurse." Id.

The jury found for the defendant doctor, and the Appellate Court affirmed.

The Illinois Supreme Court issued its decision affirming the result. (No. 95409, decided February 5, 2004.)

The case is HUGE. It is an immediate must-read for all members of the medical malpractice trial bar.

It is also required reading for Illinois legislators because of the court’s lengthy discussion about opinion disclosure pursuant to Supreme Court Rule 213.

While the Rule 213 discussion is significant and worthy of analysis, I will devote the rest of this column to the major implications of this decision in the area of filing requirements in medical malpractice litigation.

On a national basis, it has been recognized that some jurisdictions have allowed a doctor to testify to a nurse’s standard of care, see, e.g., Paris v. Kreitz, 75 N.C.App. 365, 380, 331, S.E. 2d 234, 245 (1985); Goff v. Doctors General Hospital, 166 Cal. App.2d 314, 319-20, 333 P.2d, 33 (1958). Similar support can be found in Illinois in Wingo v. Rockford, 292 Ill.Ap.3d 896, 686 N.E.2d 722 (2d Dist. 1997), which set forth that a physician can testify as to the standard of care relating to a nurse.

The Supreme Court’s opinion in Sullivan rejects the Wingo analysis and now sets forth the requirement that a "nurse on nurse" match-up is required to sustain the introduction of standard of care opinion testify at trial.

The trial courts and bar will undoubtedly debate the implications of Sullivan for some time to come.

Both sides of the bar need to immediately review their pending cases and adjust opinion testimony disclosures to comply with the new rule in Sullivan. Such opinion disclosure modification is a clear, present and immediate matter to be dealt with in the handling of malpractice cases for either party.

But there is more. Sometimes unforeseen consequences follow an otherwise appropriate result, and I think that is likely to occur as a result of the Sullivan decision.

It is foreseeable that the court’s decision will unintentionally open the door to mischief and gamesmanship in the filing of medical malpractice cases.

Because of Sullivan, a frivolous malpractice case can now be filed against a nurse without a certificate of merit, as one is not required under Section 2-622 of the Code.

Once filed, attempts will be made to engage in discovery into the liability of the attending physicians and hospital staff under the guise of conducting discovery in the case filed against the nurse.

In the heat of the ongoing tort reform debate, we continually profess our chagrin over frivolous lawsuits. (, for one, have a hard time believing there are a lot of frivolous lawsuits in medical malpractice cases because it costs too much money to pursue the litigation – a topic, though, for another day.)

The plaintiffs’ bar has an opportunity here to demonstrate leadership in protecting access to the civil justice system in the pursuit of meritorious claims.

Specifically, should the Sullivan opinion ultimately stand after all requests for rehearing or amendment are made, the plaintiffs’ bar should be the first to seek amendment of Section 2-622 of the Illinois Code of Procedure, 735 ILCS 5/2-622(a)(1), to require a certificate of merit by a nurse practitioner.

The certificate of merit would affirm a cause of action against a nurse for negligence, just like the certificate of merit for physicians. The Sullivan court embraced th finding in Dolan v. Galluzzo, 77 Ill.2d 279, 396 N.E. 2d 13 (1979), that "the legislature established nursing as a unique school of medicine." Sullivan at 10, citing Dolan, 77 Ill.2d at 284.

If the purpose of Section 2-622 is to weed out frivolous lawsuits, then the Sullivan decision should not be used to open the door for just what the legislature intended to avoid.