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Expert Witnesses May Testify Woman’s Dentures in Mouth While Choking


A 92-year-old woman underwent surgery at a medical center. The woman regularly used two sets of dentures. After surgery, while still in the hospital, the woman was served breakfast. The woman choked on a pancake and died.

 

The woman’s estate filed a medical malpractice action against the medical center. The complaint alleged that the medical center, through its agents, failed to adequately monitor the woman postoperatively, allowed the woman to eat without ensuring that the woman’s dentures were in her mouth, and failed to ensure that the woman was recovered from surgery sufficiently to consume food.

 

During discovery, the estate sent a notice to the medical center for the discovery deposition of a nurse manager at the medical center. During the deposition, the medical center’s counsel objected on the ground of attorney-client privilege to the estate’s questioning of the nurse manager about conversations between the nurse manager and the medical center’s counsel.

 

Approximately six weeks before the trial, the medical center’s counsel contacted the estate’s counsel to advise that the nurse manager was retiring and moving out of state and that they would need to set up an evidence deposition. At that videotaped evidence deposition, the estate’s counsel objected that the estate’s counsel never received notice of the deposition, nor was the estate’s counsel informed that the deposition was going to be videotaped. The estate’s counsel stated that the estate’s counsel agreed to attend the deposition only after being notified by telephone. When the estate’s counsel questioned the nurse manager about the substance of conversations between the nurse manager and the medical center’s counsel, the medical center’s counsel objected on the ground of attorney-client privilege.

 

Before the trial began, the estate moved to bar the nurse manager’s evidence deposition. The estate argued that its counsel had received improper notice of the evidence deposition and no notice of the medical center’s intention to videotape that deposition. The estate also objected to the medical center’s assertion of the attorney-client privilege for any conversations between the medical center’s counsel and the nurse manager.

 

In response, the medical center’s counsel agreed to forgo the use of the videotape of the evidence deposition. With regard to the objections based upon the attorney-client privilege, the medical center argued that the nurse manager was an agent of the medical center and insured under the medical center’s self-insured trust, both at the time of the nurse manager’s care of the woman and when the nurse manager provided discovery deposition testimony.

 

The trial court denied the estate’s motion to bar the nurse manager’s evidence deposition on the lack of privilege ground. The Circuit Court of Lake County found that the nurse manager’s retirement between the discovery and evidence depositions did not determine the nurse manager’s status for the purpose of the attorney-client privilege.

 

The trial court also denied the estate’s motion to bar the nurse manager’s evidence deposition on the lack of notice ground. The trial court reviewed the email exchanges between the parties. The parties had exchanged emails three days prior to the evidence deposition confirming the time and location.

 

The estate moved to bar the opinions of the medical center’s experts that the woman had both sets of dentures in when the woman ate breakfast. The medical center’s expert doctor opined in the expert doctor’s discovery deposition that both sets of dentures were in the woman’s mouth. The expert doctor based the opinion on the fact that the woman was perfectly capable and cognitively intact and would have asked for the dentures when the woman started eating. This opinion was based on the doctor’s interpretations of the facts in the depositions and in the woman’s medical chart.

 

The medical center’s expert nurse opined that the woman’s lower dentures more likely than not stayed in the woman’s mouth while the woman was at the medical center. The expert nurse’s opinion was based on several factors, including that the woman was alert and oriented, had managed dentures for more than 40 years, and would have asked for the dentures if the dentures were missing. The nurse also testified that had the woman asked for the dentures, that information would have been noted in the woman’s medical chart. The medical chart noted that the woman’s upper dentures were removed for surgery and reinserted in the recovery area. There was no indication in the chart that the woman’s lower dentures were ever removed. Based on the medical center’s nurse expert’s experience with elderly patients, the medical center’s nurse expert testified that the first thing that elderly patients request when they wake up from anesthesia is the return of dentures. In addition to reviewing the woman’s medical records, the medical center’s nurse expert had also reviewed the deposition testimony of all of the witnesses in this case. The medical center’s nurse expert opined, to a reasonable degree of medical certainty, that both the lower and upper dentures were in the woman’s mouth when the woman ate breakfast.

 

The trial court denied the estate’s request to exclude the medical center’s two experts’ opinions.

 

At trial, the nurses who took care of the woman from the time of admission to the hospital through death testified. The nurses each testified that the woman’s lower dentures appeared to have remained in place from the time the woman was admitted through the time of the woman’s death. The nurses each testified that the woman’s upper dentures were removed just prior to anesthetization and replaced in the recovery room.

 

The nurse manager’s evidence deposition was read to the jury, without the use of the videotape. The nurse manager testified that the nurse manager was a member of the rapid response team that was summoned to the woman’s room. When the nurse manager arrived, the woman was unresponsive. The nurse manager performed a mouth sweep and removed the woman’s upper dentures and pieces of pancake. The nurse manager did not document that the removal of the woman’s upper dentures, but that was a customary practice. After the nurse manager took the upper dentures out, the nurse manager placed the dentures on the bedside table. The nurse manager did not recall what happened to the dentures after that point.

 

During the jury instruction conference, the estate proposed that the court use the Illinois pattern jury instruction for failure to introduce evidence or witness. The estate argued that the patient care technician who testified stated that there were two patient care technicians working on the unit during the patient care technician’s shift and that each patient care technician cared for half of the patients on the floor. However, the patient care technician who testified was the only patient care technician identified as working at the time the woman choked. In addition, the patient care technician who testified could not recall whether the patient care technician did the postmortem care on the woman’s body.

 

The trial court declined to instruct the jury on failure to produce evidence or witness. The trial court responded that the patient care technician may have simply forgotten doing the postmortem care. The trial court found that a witness’s inability to remember the identity of an individual did not entitle the estate to a missing witness instruction. Such a jury instruction is only appropriate where a party fails to produce at trial a specific witness with knowledge of an occurrence.

 

The jury returned a verdict in favor of the medical center.

 

The Appellate Court of Illinois, Second District, affirmed. The court held that the trial court did not abuse its discretion in allowing the medical center’s two expert witnesses to testify that both sets of dentures were in the woman’s mouth when the woman choked on food and died following surgery at the medical center; the trial court did not abuse its discretion in allowing the evidence deposition of the nurse manager into evidence; the trial court did not err in sustaining the medical center’s objection on the ground of attorney-client privilege during the evidence deposition of the nurse manager; the medical center’s counsel did not violate the Petrillo doctrine (<c>Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (1986), appeal denied, 113 Ill.2d 584 (Ill. 1987), cert. denied, 483 U.S. 1007 (1987)</c>) when the medical center’s counsel conducted an ex parte meeting with the nurse manager before the nurse manager’s evidence deposition; and the trial court did not abuse its discretion in refusing to grant the estate a “missing witness” jury instruction.

 

The trial court did not abuse its discretion in allowing the medical center’s two expert witnesses to testify that both sets of dentures were in the woman’s mouth when the woman choked on food and died following surgery at the medical center. Even if the question of whether the dentures were in the woman’s mouth when the woman died was an issue of fact, it was well-settled that an expert’s testimony on an ultimate fact or issue does not impermissibly intrude on the factfinder’s role, as long as all of the other requirements for the admission of the testimony are met. The trier of fact is not required to accept the expert’s conclusion. The court concluded that the medical centers’ experts’ testimony was not speculative. The medical center’s expert doctor’s opinions were based on review of the medical records and depositions. The medical center’s expert nurse’s opinions were based upon the medical center’s expert nurse’s education and experience, as well as a review of the medical records and depositions. The trial court acted within its discretion when it allowed these experts to testify as to their opinions.

 

The trial court did not abuse its discretion in allowing the evidence deposition of the nurse manager into evidence. The estate’s counsel had sufficient notice of the evidence deposition. The court noted that the estate’s counsel admitted that, approximately 30 to 45 days before trial, the medical center’s counsel informed the estate’s counsel that the nurse manager had retired and was moving out of state and that the parties discussed the necessity of an evidence deposition. The emails exchanged between the parties indicated that the estate’s counsel was made aware of the date of the evidence deposition in writing and agreed to a specific date. The medical center’s counsel withdrew the videotape in light of the estate’s objection and the videotape was not shown to the jury.

 

The trial court did not err in sustaining the medical center’s objection on the ground of attorney-client privilege during the evidence deposition of the nurse manager. Attorney-client privilege extends to communications between an insured and its insurer. The nurse manager was an agent of the medical center and an insured under the medical center’s self-insured trust. Therefore, statements between the nurse manager and the medical center were protected because of the insurer-insured relationship between them. The fact that the nurse manager retired weeks before the evidence deposition was irrelevant. Even if the limitations period for suing the nurse manager personally had run by the time of the evidence deposition, the nurse manager’s actions could have given rise to vicarious liability on the medical center’s part.

 

The medical center’s counsel did not violate the Petrillo doctrine when the medical center’s counsel conducted an ex parte meeting with the nurse manager before the evidence deposition. Under the Petrillo doctrine, ex parte communications outside of authorized discovery channels are prohibited between an attorney and a party’s treating nurse except where the plaintiff sought to impute the health-care employee’s negligence to the hospital. The court held that no Petrillo violation occurred when the medical center’s counsel spoke to the nurse manager prior to the evidence deposition. Although the complaint did not name any nurses, the complaint’s allegations of negligence related to the nurses’ actions during the nurse manager’s shift on the woman’s unit. The medical center could have been held vicariously liable for the nurse manager’s actions. The exception to the Petrillo doctrine applied.

 

The trial court did not abuse its discretion in refusing to grant the estate a “missing witness” jury instruction. The instruction was not warranted because the estate never established that there was a missing witness. Based on the patient care technician’s and nurse manager’s testimony, it was reasonable for the jury to infer that the patient care technician provided the woman’s postmortem care and that therefore there was no missing witness.

 

The Appellate Court of Illinois, Second District, affirmed the trial court’s entry of judgment on a jury verdict in favor of the medical center.

 

See: Caldwell v. Advocate Condell Medical Center, 2017 WL 4402041 (Ill. App. 2d Dist., October 4, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Dental Procedures and Oral Surgery: Extracting Risks and Liabilities

 

See also Medical Law Perspectives Report: The Body as Proof: Litigation Risk Involving Autopsies

 

See the Medical Law Perspectives Blog: Hospital’s Policies, Procedures Not Discoverable in Vicarious Liability Suit

 

 

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