                                               FIRST DIVISION
                                               January 22, 2008




No. 1-05-1006


DEVONNA BEARD, Special Administrator    )    Appeal from the
of the Estate of Vernestine Hudgins     )    Circuit Court of
Deceased,                               )    Cook County.
                                        )
          Plaintiff-Appellant,          )
                                        )
     v.                                 )
                                        )
JOHN T. BARRON and RUSH-                )
PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, )    No. 01 L 014065
                                        )
          Defendants-Appellees          )
                                        )
                                        )
(Hesham Hassaballa,                     )    The Honorable
                                        ) Deborah Mary Dooling,
          Defendant).                   )    Judge Presiding.


     JUSTICE GARCIA delivered the opinion of the court.

     On November 4, 1999, Vernestine Hudgins died of renal

failure associated with Stevens-Johnson syndrome, a painful

condition where large blisters form on the skin caused by a

hypersensitive reaction to medication.    Her daughter, the

plaintiff Devonna Beard, filed suit against Hudgins's

cardiologist, Dr. John T. Barron, and Rush-Presbyterian-St.

Luke's Medical Center (Rush)1 through its agents, Dr. Hesham

     1
         Rush-Presbyterian-St. Luke's Medical Center is now known
1-05-1006


Hassaballa and Dr. Barron, alleging medical negligence.   The

plaintiff's theory was that Drs. Barron and Hassaballa failed to

timely detect a bleed in Hudgins's brain, a subdural hematoma,

that caused Hudgins to fall into a state of constant seizures,

status epilepticus, that in turn required the administration of

Dilantin, an antiseizure medication.   According to the plaintiff,

Dilantin caused Hudgins's Stevens-Johnson syndrome, which

eventually led to renal failure, causing her death.   The jury

returned a verdict in favor of the defendants.

     The plaintiff contends on appeal that the circuit court

committed three reversible errors: (1) the trial court misapplied

the Dead-Man's Act (735 ILCS 5/8-201 (West 2004)) when it

reserved ruling on the plaintiff's motion in limine seeking to

bar Dr. Barron from testifying about claimed conversations he had

with Hudgins regarding prior headaches; (2) the trial court

overruled the plaintiff's objection to the defendants' cross-

examination of Dr. William Greenlee as beyond the scope of direct

examination; and (3) the trial court refused to give instructions

pursuant to Illinois Pattern Jury Instructions, Civil, Nos. 30.21

(aggravation of preexisting condition) and 30.23 (injury from

subsequent treatment) (2005).   The plaintiff argues that the



as Rush University Medical Center.

                                 2
1-05-1006


errors could have affected the jury's verdict.    We affirm.

                            BACKGROUND

     In early July of 1999, Vernestine Hudgins was an active 65-

year-old woman.   She enjoyed cooking for her several adult

children, attending church outings, shopping, and traveling.

Hudgins also suffered from numerous cardiac conditions, some of

which required that she be hospitalized several times a year.

Hudgins had congestive heart failure and severe pulmonary

hypertension, both of which were progressing.    She also had

massive edema (swelling in her legs and abdomen), and fluid on

her lungs.   Hudgins had an irregular heartbeat attributed to

atrial fibrillation.   She was taking several medications,

including the diuretics Lasix and Zaraxolyn, and blood pressure

medications, including Digoxin and Lisinopril.

     Hudgins also had been receiving anticoagulation therapy

(blood thinners) since 1983, when the mitral valve of her heart

was replaced with a mechanical one.   Because blood can clot

around mechanical valves, Hudgins took blood thinners to help

reduce her chances of a stroke.   In July 1999, her life

expectancy was three to five years.

     On July 6, 1999, Hudgins was admitted to Rush for a

scheduled cardiac catheterization procedure to evaluate her

aortic valve that had started leaking.   Rush, a teaching

                                  3
1-05-1006


hospital, uses an approach where a supervising doctor, the

attending physician, oversees fellows, residents, and interns.

The attending physician during Hudgins's July 6 admission was Dr.

Barron, a cardiologist who had been Hudgins's physician since

1988.   Hudgins was also treated by Dr. Ajay Baddi, a cardiac

fellow, and Dr. Hassaballa, an intern.

     Because the cardiac procedure involved inserting a catheter

into the artery near her groin, the anticoagulation therapy had

to be halted before the procedure was performed.   At the time of

her admission, Hudgins was taking the blood thinner Coumadin,

which remained active in her system for several days.   In order

to ensure that Hudgins's blood remained adequately

anticoagulated, Coumadin was stopped and Heparin, a blood thinner

that would remain in Hudgins's system for only a few hours, was

introduced.   The idea was that Heparin would be stopped a few

hours before the cardiac catheterization procedure began and

restarted once the procedure was over.   Hudgins would later

transition back to Coumadin.

     Hudgins also received a drug called Norvasc, used to treat

high blood pressure.

     Hudgins's cardiac catheterization procedure was performed on

July 9, 1999.   She remained at Rush for several days thereafter

while doctors adjusted her blood thinners to a therapeutic level.

                                 4
1-05-1006


On July 10, Dr. Baddi performed a brief neurological exam that

was normal and reported in Hudgins's chart that she had no new

complaints.    Dr. Baddi made similar entries in her chart for July

11 and 12.

     On July 12, 1999, Hudgins suffered a nosebleed and a

headache.    On July 13, she had another nosebleed and headache.

She was given Tylenol and a medication called Ultram.    On the

evening of July 13, Hudgins declined further pain medication, but

requested an ice pack for her headache.

     On July 14, 1999, Hudgins vomited twice.    As a result, she

was given the drug Compazine.    She also experienced a 47-point

drop in her systolic blood pressure and a 23-point drop in her

diastolic blood pressure.    A nurse's note entered at 4:40 p.m.

indicated that Hudgins denied any complaints, was oriented to

person, place, and time, opened her eyes to sound, had clear and

appropriate speech, and obeyed commands.

     On July 17, 1999, Hudgins's headache returned.    As a result,

Dr. Barron stopped the medication Norvasc.    Hudgins did not

report a headache for the rest of the day on July 17 or on July

18 or 19.

     Although her blood-thinning levels were not quite where Dr.

Barron wanted them to be, Hudgins was discharged from Rush on

July 19, 1999.    Prior to being discharged, she was instructed on

                                  5
1-05-1006


giving herself an injection of a fast-acting anticoagulant called

Lovenox.    She was also placed back on Coumadin.     According to

members of Hudgins's family, she complained of a headache and

appeared groggy upon discharge.

     Hudgins was taken to the emergency room (ER) at Rush on the

morning of July 20, 1999, because her groin wound from the

cardiac catheterization procedure began bleeding.       Dr. Barron met

Hudgins in the ER and applied pressure to the wound.       Hudgins was

readmitted so an ultrasound could be performed on the groin area

to detect whether she had a pseudoaneurysm.       Coumadin was briefly

stopped.    Once the ultrasound came back negative, Coumadin was

restarted.    Hudgins was seen by Dr. Hassaballa, who noted that

Hudgins was not experiencing any chest pain, dizziness, or double

vision, but that she was "[p]ositive for headache started in

house on last admission."    She was again given Ultram.

     On the morning of July 21, 1999, while still at Rush,

Hudgins continued to report a headache, was nauseated, and

vomited twice.    At 7:20 a.m., Dr. Hassaballa ordered Compazine to

relieve the nausea and vomiting.       When Hudgins was discharged

from Rush at 5 p.m. on July 21, she had a "mild" headache and was

drowsy.    Hudgins declined Tylenol for her headache.     Her

drowsiness was attributed to Compazine.

     Hudgins returned home, where she continued to experience a

                                   6
1-05-1006


headache.    In the early morning of July 23, 1999, one of

Hudgins's daughters called 911 because she began turning her head

from side to side and appeared groggy.    When the paramedics

arrived, Hudgins's eyes were rolled back, indicative of a

seizure.    She was taken to Westlake Hospital (Westlake), where a

computed tomography (CT) scan was performed upon her admission.

The CT scan showed a subdural hematoma and indicated she was in

status epilepticus.    Additional CT scans were performed during

her hospitalization at Westlake.

     Doctors at Westlake treated Hudgins intravenously with

Dilantin, used to control seizures.    She remained in status

epilepticus for about four days and fell into a coma.    On July

28, 1999, Hudgins was transferred to Rush, where Dilantin was

continued.    Hudgins's seizures eventually stopped, allowing her

to be sent to rehabilitation.    However, the seizures soon

returned.    In early September, Hudgins developed a rash that soon

turned into open, oozing sores on her back, buttocks and thighs.

The sores, about the size of apples, would fill with fluid and

burst.   It was evident to Hudgins's children, who frequently

visited, that she was in pain.    Hudgins's daughters took turns

staying with her through the night.

     It was determined that Hudgins had developed Stevens-Johnson

syndrome.    She also developed pneumonia and her kidneys began to

                                   7
1-05-1006


fail.    Hudgins died on November 4, 1999, at the age of 66.

     The plaintiff filed suit against Dr. Barron, Dr. Hassaballa,

and Rush,2 alleging medical malpractice.   Dr. Hassaballa was

later dropped as an individually named defendant.

     A jury trial commenced on September 23, 2004.    The

plaintiff's theory was that the standard of care required the

defendants to order a neurological consult of Hudgins on July 17,

1999, as well as a CT scan by July 20 or 21.    According to the

plaintiff, Hudgins's nausea, nosebleeds and headaches, combined

with her anticoagulation therapy, should have placed the doctors

on notice that she was experiencing bleeding in her brain.

According to the plaintiff, if the bleeding had been detected

prior to status epilepticus setting in, it could have been

controlled without the administration of Dilantin, which she

contended, caused the Stevens-Johnson syndrome.    The plaintiff's

experts opined at trial that had the subdural hematoma been

treated before the seizures developed, the subsequent

complications would not have arisen and Hudgins would not have

died when she did.

     As her initial witness, the plaintiff called Dr. Barron to



     2
         The plaintiff's original complaint named other defendants

not relevant to this appeal.

                                  8
1-05-1006


testify as an adverse witness.    The medical charts of Hudgins's

July 6, 1999, admission were also admitted into evidence.           To

support her theory that Hudgins's brain was bleeding while she

was still at Rush, the plaintiff presented expert testimony from

Dr. Mary Edwards-Brown, a neuroradiologist and professor of

radiology at Indiana University.       Dr. Edwards-Brown reviewed

several images of Hudgins's brain, including CT scans taken on

July 23 and July 28, 1999, at Westlake and a magnetic resonance

imaging (MRI) scan taken at Rush on July 29.       It was Dr. Edwards-

Brown's opinion that, within a reasonable degree of medical

certainty, Hudgins's hematoma was in the early subacute phase,

meaning the majority of the bleeding occurred within two days to

a week before the July 29 MRI.    However, the images also

indicated the bleeding had occurred over time.       Dr. Edwards-Brown

concluded that some of the hematoma was in the late subacute

phase, meaning it occurred as much as two months prior to the

MRI.    Because Hudgins's clinical history indicated she was on

anticoagulants, experienced bleeding from her nose and groin

wound, and suffered headaches, Dr. Edwards-Brown opined the

bleeding likely began when Hudgins reported her first headache on

July 12.

       The plaintiff also presented the jury with the videotaped

deposition of Dr. William Greenlee, a neuroradiologist.       Dr.

                                   9
1-05-1006


Greenlee testified that the July 29, 1999, MRI taken at Rush

indicated Hudgins's bleed occurred several days to several weeks

prior to the scan.   On cross-examination, Dr. Greenlee testified

that when looking at the July 29, 1999, MRI and a July 28, 1999,

CT scan together, his opinion was that the age of the bleed was

in the "several days to a week period."

      Dr. Robert Heller, a board-certified internist from Los

Angeles, and Dr. Omkar Markand, the Professor Emeritus in the

neurology department at Indiana University, also testified as

experts on behalf of the plaintiff.   Both doctors based their

opinions, in part, on the records of Hudgins's 1999 admissions to

Rush and Westlake.

      Dr. Markand testified that the standard of care required Dr.

Barron to do more than just take Hudgins off Norvasc on July 17,

1999.   Because Hudgins had experienced nosebleeds, headaches,

nausea, and vomiting, Dr. Barron should have requested a

neurological consult and probably should have obtained a CT scan

of Hudgins's head.   Dr. Markand testified that because Hudgins's

symptoms were present during her July 20, 1999, admission to

Rush, the standard of care required both a neurological consult

and a CT scan on July 20 and no later than the morning of July

21.   Dr. Markand also testified that Hudgins developed Stevens-

Johnson syndrome from receiving Dilantin.   In his opinion, had

                                10
1-05-1006


Hudgins's subdural hematoma been detected by July 21 and

immediately treated, she would not have developed status

epilepticus, would not have required Dilantin, and would not have

developed Stevens-Johnson syndrome.

     It was Dr. Heller's opinion that Dr. Barron's treatment fell

below the standard of care because he ignored Hudgins's symptoms

of headache, nausea and vomiting, and did not properly evaluate

those symptoms in light of her anticoagulation therapy by

ordering a neurological consult or a CT scan of her head.    Dr.

Heller also opined that Dr. Hassaballa's treatment fell below the

standard of care because he failed to properly report Hudgins's

symptoms of intracranial bleeding to Dr. Barron, his attending

physician, and failed to properly evaluate Hudgins with either a

neurological consult or a CT scan.

     The defendants presented expert testimony from Dr. Albert

Ehle, a neurologist and professor of neurology at the University

of Chicago, Dr. Joel Meyer, a neuroradiologist with Evanston

Northwestern Health Care, and Dr. Dan Fintel, a cardiologist at

Northwestern.   Drs. Barron and Hassaballa also testified for the

defense.

     According to Dr. Meyer, the July 23, 1999, CT scan of

Hudgins's brain indicated the hematoma was acute, meaning it had

occurred within hours or up to one or two days prior to the scan.

                                11
1-05-1006


     Dr. Hassaballa and Dr. Barron each testified that his

respective care of Hudgins met the applicable standard of care.

Dr. Barron testified that Hudgins's nosebleeds and headaches were

not significant because she had experienced them before.   He also

testified that because Compazine resolved Hudgins's vomiting,

this was "strong evidence" that the vomiting was not "cephal in

origin."

      Dr. Ehle testified that the standard of care did not

require either a neurological consult or a CT scan on July 17,

1999, when Norvasc was discontinued.   In his opinion, there was

"no evidence" that the plaintiff had the kind of "persistent,

progressive headaches" that are symptomatic of a subdural bleed

during her first admission to Rush.    Dr. Ehle also testified that

the standard of care did not require either a neurological

consult or a CT scan during Hudgins's second admission to Rush.

Dr. Ehle also found it "significant" that Hudgins was "well-known

to the service [provider]" and accordingly her doctors, including

Drs. Barron and Hassaballa, would be "sensitive to any subtle

changes in her behavior that could have been an indication of

something going on."   According to Dr. Ehle, the Stevens-Johnson

syndrome could have been caused by antibiotics Hudgins

received, as well as by Dilantin.

      Dr. Fintel testified that in his opinion, the standard of

                                12
1-05-1006


care did not require either a neurological consult or a CT scan

during Hudgins's first or second admission to Rush.     According to

Dr. Fintel, clinical signs of a subdural hematoma include a

persistent change in mental status, the inability to follow

commands, clumsiness, neurological abnormalities, and severe

persistent headaches that do not respond to drugs and intensify

over time.   According to Dr. Fintel, Hudgins did not experience

any of these symptoms while at Rush.     Dr. Fintel also testified

that the complications Hudgins experienced following the subdural

bleed were "inevitable and unavoidable" as well as "not

predictable."

      The jury returned a verdict in favor of the defendants, and

the circuit court entered judgment on the verdict.    The

plaintiff's posttrial motion was denied, and this timely appeal

followed.

                              ANALYSIS

                        I.   Dead-Man's Act

     In keeping with her theory that Dr. Barron and Dr.

Hassaballa failed to recognize Hudgins's headaches as symptomatic

of a bleed in her brain, the plaintiff filed two motions in

limine seeking to prevent Dr. Barron from testifying that Hudgins

had experienced headaches in the past.    It was the plaintiff's

theory that such testimony would violate the Dead-Man's Act (the

                                 13
1-05-1006


Act) (735 ILCS 5/8-201 (West 2004)).    The trial court ruled it

was required to first determine under Hoem v. Zia, 159 Ill. 2d

193, 636 N.E.2d 479 (1994), whether the plaintiff's experts would

"open the door" to any prior conversations or events between Dr.

Barron and Hudgins before deciding whether any prior

conversations were admissible.    The court stood by its ruling

even after being informed Dr. Barron would be the first witness

to testify.

     Although the plaintiff contends otherwise, the issue in this

case turns on the nature of the evidence presented regarding any

prior conversations between Hudgins and Dr. Barron.    It is

therefore an evidentiary issue, not an issue of statutory

construction.    Accordingly, we review the trial court's ruling

for an abuse of discretion.    In re Estate of Hoover, 155 Ill. 2d

402, 420, 615 N.E.2d 736 (1993).

     The Dead-Man's Act provides, in relevant part:

                 "In the trial of any action in which any

            party sues or defends as the representative

            of a deceased person ***, no adverse party or

            person directly interested in the action

            shall be allowed to testify on his or her own

            behalf to any conversation with the deceased

            *** or to any event which took place in the

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1-05-1006


            presence of the deceased ***, except in the

            following circumstances:

                 (a) If any person testifies on behalf of

            the representative to any conversation with

            the deceased *** or to any event which took

            place in the presence of the deceased ***,

            any adverse party or interested person, if

            otherwise competent, may testify concerning

            the same conversation or event."   735 ILCS

            5/8-201(a) (West 2004).

      Our supreme court has explained that the Act serves two

purposes: (1) protecting decedents' estates from fraudulent

claims; and (2) equalizing the position of the parties in regard

to the giving of testimony.    Gunn v. Sobucki, 216 Ill. 2d 602,

609, 837 N.E.2d 865 (2005), citing Hoem, 159 Ill. 2d at 201; see

also M. Graham, Cleary & Graham's Handbook of Illinois Evidence

§606.1, at 334 (8th ed. 2004).

     The plaintiff argues the trial court's decision to reserve

ruling on her motions permitted Dr. Barron to inject his prior

experiences with Hudgins and to testify about conversations with

her involving prior headaches.    She complains about five specific

instances in the examination of Dr. Barron in support of her

claim.

                                 15
1-05-1006


     The first three instances transpired when Dr. Barron was

called as an adverse witness in the plaintiff's case-in-chief.

Dr. Barron testified that he had been Hudgins's doctor since

1989, and he gave a history of the numerous ailments from which

Hudgins suffered.    He also explained Hudgins's transitions from

Coumadin to Heparin and back to Coumadin during her July 6, 1999,

admission to Rush.    Dr. Barron acknowledged that during the

period of transition, Hudgins was at a greater risk for bleeding

and for suffering a stroke.    He acknowledged that a headache

could be a sign of brain-related bleeding.    A nosebleed, however,

was not, by itself, a sign of brain-related bleeding.    Dr. Barron

testified that a nosebleed was not necessarily a sign of

spontaneous bleeding and explained that nosebleeds could be

caused by irritation from several sources.    Dr. Barron also

testified that Hudgins reported nosebleeds in the past, although

he did not recall charting any of those nosebleeds.    Dr. Barron

acknowledged that he learned Hudgins was suffering headaches

during the July 6, 1999, admission, but he would not necessarily

report his evaluation of those headaches in her chart.    He also

testified that he responded to her headaches by taking her off

Norvasc on July 17.    He additionally acknowledged that the

easiest way to determine whether headaches were due to bleeding

in her brain was with a CT scan.

                                 16
1-05-1006


       The plaintiff questioned Dr. Barron about his progress notes

of Hudgins's first admission to Rush, which were admitted into

evidence.    When asked why his progress notes did not discuss his

evaluation of Hudgins's headaches, Dr. Barron explained his

neurological exams were not necessarily written, but that he

evaluated her speech, mentation and motions every time he saw

her.    He further explained that he only recorded "important

factors."    The first instance in Dr. Barron's testimony that the

plaintiff contends violated the Dead-Man's Act then occurred.

                 "Q.   Was it not important on July 16th

            that Mrs. Hudgins had had headaches during

            the days prior to that?

                 A. [Mrs.] Hudgins had headaches in the

            past as well, frequent headaches in the past.

            My conversations with her for the past ten

            years --

                 MS. THOMAS [Plaintiff's Attorney]: Move

            to strike, Your Honor.

                 THE COURT: It's stricken.   The jurors

            are instructed to disregard the answer.   Dr.

            Barron, just respond to the question asked.

                                  ***

                 THE WITNESS [Dr. Barron]: In my judgment

                                  17
1-05-1006


            it was not."

     The second instance transpired after counsel for the

plaintiff asked Dr. Barron to read the note he made in her chart

on July 17, 1999, when Norvasc was discontinued.

                 "A. [Dr. Barron]: It says Cardiology.

            Vital signs stable, which is VSS. *** Patient

            doing well except complains of headache.

            Dieresis continues.      Exam, less edema.    Plan,

            DC Norvasc.    Number 2, check PT today.      If

            INR of 2.0, may DC home on 7.5 milligrams PO,

            which means by mouth, every ghs, which means

            at night.    Coumadin.    Then I signed it.

                 Q.     That's the extent of your note --

                 A.     Yes.

                 Q.     -- on the 17th?   And this is what we

            discussed earlier this morning where in

            response to plaintiff's headaches during this

            admission, you ordered that she be

            discontinued from Norvasc?

                 A.     Are you referring specifically to

            the 17th or to the 13th when it was held?

                 Q.     The 17th.

                 A.     Specifically the 17th she told me

                                     18
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            that --

                 [MS. Thomas]: Your Honor, motion in

            limine.

                                    ***

                 THE COURT: Start another question.

            Strike all that.    Just start another

            question.    And wait for the question.     If you

            don't understand, say I don't understand.       If

            you do, just answer the question asked.       Go

            ahead.

                 Q.     Mrs. Hudgins, her Norvasc was

            discontinued on the 17th, correct?

                 A.     Permanently discontinued, yes."

     On the above record, we find no error to have occurred.           The

plaintiff's timely objections, sustained by the trial court, kept

any offensive testimony from the jury.      To the extent Dr.

Barron's answer referenced an improper subject, the trial court

properly instructed the jury to disregard the testimony.         The

jury is presumed to follow the trial court's instructions.

People v. Taylor, 166 Ill. 2d 414, 438, 655 N.E.2d 901 (1995).

Consequently, any error that may have occurred was cured.

     The plaintiff, in effect, argues that had her motions in

limine been granted prior to Dr. Barron taking the stand, no risk

                                    19
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to the plaintiff of Dr. Barron testifying to such matters would

have occurred.   A grant of the motion in limine would have

obviated any need of the plaintiff having to object and avoid

giving the jury the impression that she was trying to hide

evidence.

     As this court noted in Compton v. Ubilluz, 353 Ill. App. 3d

863, 871, 819 N.E.2d 767 (2004), trial courts are at a

disadvantage in ruling on motions in limine because such motions

are "considered in a vacuum, before the presentation of the full

evidence at trial that may justify admission or require

exclusion."   Here, we cannot say the trial court abused its

discretion by waiting until Dr. Barron actually testified in

order to determine whether the plaintiff would open the door to

any testimony that would otherwise be prohibited by the Act.    The

better approach may have been to grant the motion subject to

reconsideration had the door been opened.   However, no reversible

error occurred where the trial court sustained the timely

objections.   See, e.g., Crumpton v. Walgreen Co., 375 Ill. App.

3d 73, 84, 871 N.E.2d 905 (2007) (to the extent any prejudice

occurred by the defendant's violation of the motion in limine,

"it was cured by the circuit court's instruction to the jury to

disregard counsel's question").

     The third instance of which the plaintiff complains happened

                                  20
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when Dr. Barron, still testifying as an adverse witness in the

plaintiff's case, was asked about Hudgins's symptoms on July 20,

1999, when she returned to Rush after her groin wound began

bleeding.

                 "Q.    And you knew she came in, and she

            was having headaches on the 20th when she

            came in with her groin bleed, correct?

                 A.    When she -- not on the day that she

            came in on the 20th.   I did not know that.

            And she did not report this to me.   And I had

            no indication that she did have headaches

            that morning.

                 Q.    But by the time you signed the

            discharge note and the order on the morning

            of the 21st, it was clear that she had had

            headache yesterday and she was having

            headache, nausea, and vomiting in the

            morning, correct?

                 A.    Yes.

                 Q.    You knew that?

                 A.    Yes.

                 Q.    Yet that was not enough for you to

            order a CT scan?

                                   21
1-05-1006


                 A.   Because she had it several times

            before and in previous admissions as well.

                 MS. THOMAS: Move to strike.

                 THE COURT: No.    Based on your question

            overruled.   It will stand."

     The plaintiff relies on Vazirzadeh v. Kaminski, 157 Ill.

App. 3d 638, 510 N.E.2d 1096 (1987), and Theofanis v. Sarrafi,

339 Ill. App. 3d 460, 791 N.E.2d 38 (2003), to argue this

testimony was improper.

     In Vazirzadeh, the issue was whether the defendant doctor

failed to diagnose and treat the decedent's symptoms of a

pulmonary embolism.      The decedent's symptoms, including shortness

of breath and chest pain, were not disputed.     The defendant

doctor, while testifying as an adverse witness in the plaintiff's

case, testified, in response to questions from his own attorney,

that the decedent told him that his chest pain was of short

duration, was relieved by belching, and was not significant.       On

appeal, this court held that the testimony was barred by the Act,

as the plaintiff had not questioned the defendant about that

conversation between the doctor and the decedent.        Vazirzadeh,

157 Ill. App. 3d at 645.

     Theofanis also involved the situation where the defendant

doctor was cross-examined by his own attorney after being called

                                   22
1-05-1006

as an adverse witness in the plaintiff's case.     There, the

defendant doctor sought to testify to a conversation with the

decedent about which the plaintiff's attorney had not asked.

     In this case, unlike in Vazirzadeh or Theofanis, the

complained-of testimony was elicited by the plaintiff's own

attorney during an adverse examination.     One of the objectives of

the Act is fundamental fairness.      Wasleff v. Dever, 194 Ill. App.

3d 147, 153, 550 N.E.2d 1132 (1990).     This purpose is not

fulfilled where, as in this case, the plaintiff is permitted to

elicit testimony from the defendant medical doctor during an

adverse examination insinuating that he missed important symptoms

exhibited by his patient, while, at the same time, denying him

the opportunity to answer questions, posed by the plaintiff, as

to why he did not find these symptoms significant to warrant

further testing.    Our supreme court has noted:

            "It would be palpably unjust if a litigant

            were permitted to call an adverse party and

            examine him as to one fact or phase of a

            transaction in his favor and then invoke the

            bar of the statute when the party examined

            sought to testify further with regard to the

            same transaction for the purpose of

            explaining his former testimony or correcting

                                 23
1-05-1006

            an erroneous impression left thereby."

            Perkins v. Brown, 400 Ill. 490, 497, 81

            N.E.2d 207 (1948).

     We recognize that the court in Perkins was interpreting a

prior version of the Dead-Man's Act which dealt with

"conversations" or "transactions" while the current Act discusses

"conversations" or "events."     Compare Vazirzadeh, 157 Ill. App.

3d at 644, with Zorn v. Zorn, 126 Ill. App. 3d 258, 261-63, 464

N.E.2d 879 (1984) (each case taking a different view as to the

legislature's intent by the change in language).      Nonetheless, we

determine, given the facts of this case, that it would be

fundamentally unfair to allow the plaintiff to specifically ask

Dr. Barron why he did not order a CT scan on July 21, the

question suggesting that Hudgins presented with symptoms that

were new and concerning, and then use the Dead-Man's Act to bar

his response why he did not feel the symptoms to be new or

concerning.

     The last two instances of which the plaintiff complains

transpired during Dr. Barron's direct examination in the

defendants' case-in-chief.

                 "Q.    Did she, over the years, ever have

            nose bleeds?

                 A.    She had several nose bleeds.

                                   24
1-05-1006

                 Q.    Did she, over the years, have

            complaints of headache that she at least felt

            was due to hypertensive medication?

                 MS. THOMAS: Objection, motion in

            limine."

     The parties then discussed the matter outside of the

presence of the jury.      Counsel for the plaintiff argued that

there were no reports of prior headaches in any of the charts

admitted into evidence.      Counsel also explained that defense

counsel had produced two notations of headaches in Hudgins's

medical records that had not been admitted, one from 1992 and the

other from 1995.      The plaintiff's attorney argued that she had

not opened the door to any records prior to Hudgins's July 6

admission, and consequently, any testimony regarding headaches

preceding that date should be barred.      The court ruled:

                 "This is what I'm going to do on this.

            Dr. Barron is going to be limited -- saying

            you are tracking on the Dead Man's Act as to

            the conversation.    Dr. Barron is going to be

            limited to talking about any headaches that

            there is actually a record of on a prior

            treatment of Ms. Hudgins.    Whether it's in

            his medical chart or some other chart, if it

                                   25
1-05-1006

            was recorded at the time, then Dr. Barron can

            talk about it."

    When Dr. Barron's testimony resumed, the following occurred.

                 "Q. *** Doctor, while she was on the

            medications that you told me about, did the

            patient have complaints of nose bleeds?

                 A.     Yes.

                 Q.     Did the patient have complaints of

            headache?

                 A.     Yes.

                 Q.     Did the patient have complaints of

            nausea and vomiting?

                 A.     Yes.

                 Q.     Was Tylenol given for the headaches?

                 A.     Yes.

                 Q.     In dealing with congestive heart

            failure patients, you know and have an

            understanding of what side effects all of the

            medications that patients such as Ms. Hudgins

            can have from those medications?

                 A.     Yes."

    The plaintiff asserts this ruling, too, was erroneous.     We

disagree.    We find the supreme court's decision in Hoem, 159 Ill.

                                    26
1-05-1006

2d 193, instructive.

       In Hoem, the issue at trial was whether the defendant

doctors failed to diagnose and prevent the decedent's impending

heart attack.    The plaintiff, in her case-in-chief, called an

expert who testified that the decedent's medical records showed

clear signs of a prior heart attack, clear warning signs of an

impending heart attack, and that on October 31, 1988, the

decedent had described angina, a symptom of heart disease, to Dr.

Zia, one of the defendants.    It was the plaintiff's expert's

opinion that based upon the information Dr. Zia recorded in his

office notes, Dr. Zia should have recognized the decedent's

complaints as symptomatic of heart disease and responded

accordingly.

       Dr. Zia testified about the October 31, 1988, exam in the

defendants' case-in-chief.    According to Dr. Zia, the decedent

had not described angina but, rather, had described

musculoskeletal pain.    Consequently, Dr. Zia did not believe the

decedent was suffering from heart disease.

       The supreme court found that the plaintiff's expert's

testimony and the introduction of Dr. Zia's office notes opened

the door to Dr. Zia's testimony under subsection 8-201(a) of the

Act.    The court found the plaintiff's expert, by putting his

"gloss" on the notes, insinuated that the decedent visited Dr.

                                 27
1-05-1006

Zia specifically for a heart-related problem.      Hoem, 159 Ill. 2d

at 201.   The court explained:

            "In this case, allowing the representative of

            the deceased to introduce her version of why

            [the decedent] went to Dr. Zia, without

            giving an equal opportunity to Dr. Zia, would

            not advance the policy behind the Act.    Under

            these circumstances, we find it fundamentally

            unfair to deny Dr. Zia an opportunity to

            explain his view of what happened.   Left

            unchallenged, [the plaintiff's expert's]

            comments would have remained with the jury as

            the only testimony regarding the conversation

            between Dr. Zia and [the decedent]."     Hoem,

            159 Ill. 2d at 202.

     In this case, we similarly find that the plaintiff, by

presenting expert testimony establishing that Drs. Barron and

Hassaballa violated the standard of care by failing to recognize

Hudgins's symptoms to be indicative of a subdural bleed, opened

the door to Dr. Barron's testimony that he did not find the

symptoms, including the headaches, to be suspect.

     The plaintiff would have us find that Dr. Barron's testimony

about prior headaches referenced conversations that occurred well

                                  28
1-05-1006

before Hudgins's July 1999 admissions.      However, we draw no such

conclusion.    Rather, we find the prior conversation to be those

that were documented in the medical records admitted at trial and

to which the plaintiff opened the door, namely, the complaints

Hudgins made while at Rush in July 1999.     The plaintiff's

experts, including Drs. Heller and Markand, interpreted those

records as indicating Hudgins was experiencing new symptoms,

including headaches and nosebleeds, that Dr. Barron should have

recognized as possibly indicating a subdural bleed.     Once the

door was opened to these conversations, Dr. Barron was entitled

to explain his view--that he did not consider these symptoms to

be new because Hudgins had had them before.

     The fifth instance happened while Dr. Barron, still

testifying for the defense, was being cross-examined by the

plaintiff's attorney.     Counsel asked Dr. Barron about the

medications Hudgins was taking and whether she reported a

headache to him on July 21, 1999.

                 "Q.    Did you know or not know, Doctor,

            whether she had headache, nausea, and

            vomiting on the morning of the 21st?

                 A.    I was aware from the previous notes

            that she had epigastric pain.   This is

            commonly seen in patients with heart failure,

                                   29
1-05-1006

            nausea, vomiting.    The headache was of no

            consequence.    I assessed it as of no

            consequence and viewed this patient's

            previous history, her medications, that it

            did not strike me as important.

                 Q.     It wasn't important?

                 A.     It was her [sic] ordinary [Mrs.]

            Hudgins."

     We do not find this testimony to be referencing any prior

conversations or events.      Moreover, as the plaintiff failed to

make any objection to the testimony, she has waived her

contention that it violated the Act for purposes of appeal.      See

In re Estate of Netherton, 62 Ill. App. 3d 55, 59, 378 N.E.2d 800

(1978); see also Malanowski v. Jabamoni, 332 Ill. App. 3d 8, 11,

772 N.E.2d 967 (2002).

     We consequently find no error in the circuit court's

application of the Dead-Man's Act in this case.

               II.    Cross-examination of Dr. Greenlee

     The plaintiff next contends the trial court committed

reversible error when it ruled the defendants' cross-examination

of Dr. Greenlee was within the scope of direct examination.

     Dr. Greenlee is the neuroradiologist who interpreted the

July 29, 1999, MRI of Hudgins's brain at Rush.       He indicated his

                                    30
1-05-1006

findings in a report also dated July 29, 1999.   That report

states, "[c]orrelative examination is a noncontrast CT scan of

the brain from [Westlake] Hospital dated July 28, 1999."   Written

in the "impression" section of the report is "subdural hematoma

in the late subacute stage which is seen along the right frontal,

right parietal and right occipital lobes."

     Prior to trial, the plaintiff disclosed Dr. Greenlee as an

independent expert witness pursuant to Supreme Court Rule 213(f)

(210 Ill. 2d R. 213(f)).    The plaintiff's Rule 213(f) disclosure

states, "Dr. Greenlee is expected to testify consistent with his

MRI Report dated July 29, 1999."

     On September 13, 2004, Dr. Greenlee gave a videotaped

deposition.   At the time the deposition was taken, Dr. Greenlee

no longer worked at Rush.   As far as can be determined from the

record, when Dr. Greenlee gave his deposition, he was presented

with films of Hudgins's July 28, 1999, CT scan taken at Westlake,

and of the July 29 MRI scan taken at Rush, and the report he

created interpreting the July 29 MRI.   On direct examination by

the plaintiff's attorney, Dr. Greenlee stated his July 29 report

determined Hudgins's subdural hematoma was in the late subacute

stage, meaning the bleeding began several days to several weeks

prior to the scan.   Dr. Greenlee was not able to approximate the

date on which the bleeding began with more accuracy, explaining,

                                 31
1-05-1006

"[A]ccurately dating subdural hematomas on MR[I] is difficult

because there's quite a bit of variability in the appearance of

subdural hematomas in the subacute stage."   Dr. Greenlee also

explained MRI reports describe a hematoma in "the most advanced

stage of breakdown."   Thus, Hudgins's subdural hematoma was

classified as being in the late subacute stage "even though there

[were] still blood products which would be from the early

subacute stage."   Dr. Greenlee also testified if he wanted to

more specifically age a subdural hematoma showing characteristics

of the early and the late subacute stages, he would refer to the

patient's clinical history or "compare [the MRI scan] to the CT

scan."

      Dr. Greenlee testified he used a CT scan of Hudgins's brain

taken at Westlake on July 28, 1999, as a comparison in order to

determine whether the subdural hematoma had changed; for

instance, whether "there was increasing mass effect or new

bleeding."   Dr. Greenlee also explained comparing CT scans and

MRI scans was somewhat like comparing apples and oranges because

"[d]ifferent scans show different things to advantage."    Dr.

Greenlee testified "within the ability to compare CT and MR[I]"

there had been "no significant change in the size of the subdural

hematoma or the degree of mass effect" between July 28 and July

29.   Dr. Greenlee, however, did not testify on direct examination

                                32
1-05-1006

that he attempted to date the subdural hematoma by interpreting

the CT scan.

     When cross-examined by defense counsel, Dr. Greenlee was

asked whether MRI or CT technology was preferred in dating

hematomas.   Dr. Greenlee responded that there was no preference,

but that each technology showed different things.   In looking at

Hudgins's CT scan, Dr. Greenlee testified the hematoma was

"probably less than one to two weeks old."    By comparing the CT

scan with the MRI, Dr. Greenlee's opinion, based upon a

reasonable degree of medical certainty, was the hematoma was in

the "several days to a week period."

     Prior to the presentation of Dr. Greenlee's deposition at

trial, the plaintiff's attorney argued defense counsel's cross-

examination went beyond the scope of direct examination and

focused on Dr. Greenlee's interpretation of the Westlake CT scan

rather than the Rush MRI.   The plaintiff also asserted Dr.

Greenlee essentially testified as an undisclosed expert witness

on behalf of the defendants.   The trial court overruled the

plaintiff's objection.   The plaintiff contends on appeal the

trial court's ruling was in error.

     As a general rule, cross-examination is limited to the scope

of direct examination.   Leonardi v. Loyola University of Chicago,

168 Ill. 2d 83, 105, 658 N.E.2d 450 (1995).    "However,

                                33
1-05-1006

circumstances resting within the witness' knowledge may be

developed on cross-examination that explain, qualify, discredit,

or destroy the witness' direct testimony, even though that

material may not have been raised on direct examination."

Leonardi, 168 Ill. 2d at 105-06.       The scope of cross-examination

does not refer to the actual material discussed during direct

examination, but rather to the subject matter of the direct

examination.   Neal v. Nimmagadda, 279 Ill. App. 3d 834, 840, 665

N.E.2d 424 (1996).   The scope of cross-examination lies within

the sound discretion of the trial court and will not be disturbed

on review absent an abuse of that discretion.       Leondardi, 168

Ill. 2d at 102.

     In this case, the subject matter of Dr. Greenlee's direct

testimony was the age of Hudgins's subdural bleed.      Asking Dr.

Greenlee to date the age of the bleed based on the July 28 CT

scan, which had been used as a comparison when the July 29 MRI

was dated, was not beyond the scope of this subject matter,

especially where it served to explain the testimony Dr. Greenlee

gave during direct examination.    This court cannot say the

circuit court abused its discretion.

                      III.   Jury Instructions

       A.   Instruction based on IPI Civil (2005) No. 30.23

     The plaintiff tendered an instruction based on Illinois

                                  34
1-05-1006

Pattern Jury Instructions, Civil, No. 30.23 (2005) (hereinafter

IPI Civil (2005) No. 30.23), titled "Injury from Subsequent

Treatment."   The trial court refused to give the instruction

because there was no evidence of subsequent medical negligence or

of subsequent treatment causing or aggravating an injury.

     The plaintiff's tendered instruction states, "If defendants

negligently cause a condition of the plaintiff, then the

defendants are liable not only for the plaintiff's damages

resulting from that condition, but are also liable for the

plaintiff's damages sustained by the plaintiff arising from the

efforts of health care providers to treat the condition caused by

the defendant."    The jury's verdict was that the defendants were

not negligent.    The plaintiff maintains that omitting the

instruction was still error even in the face of the jury's

verdict for the defendants.    The plaintiff contends this is so

because the tendered instruction is not strictly a damages

instruction and the failure to give the tendered instruction may

have led to a verdict in favor of the defendants because "the

jury could be confused as to the applicable law."

     The Comments to IPI Civil (2005) No. 30.23 support the

plaintiff's position that the instruction may have an impact on a

jury beyond damages because "[a] jury might perceive the

subsequent provider as the wrongdoer and 'acquit[] the defendant

                                 35
1-05-1006

on that basis.' "    IPI Civil (2005) No. 30.23, Comments, at 141,

quoting Kolakowski v. Voris, 94 Ill. App. 3d 404, 413, 418 N.E.2d

1003 (1981).   The operative notion behind the instruction,

however, is the existence of a "subsequent provider as the

wrongdoer."

     On the record before us, as the trial court found, there was

no subsequent wrongdoer; nor has the plaintiff identified any

subsequent wrongdoer.    The plaintiff maintains that the

instruction may be given when "there is evidence that a

subsequent health care provider caused or aggravated the injury"

without any showing that such a subsequent provider was

negligent.    IPI Civil (2005) No. 30.23, Notes on Use, at 141.

Before this instruction should be given, however, it is necessary

that "the issue of the subsequent medical provider having caused

or aggravated an injury [be] injected into the case."    IPI Civil

(2005) No. 30.23, Comments, at 141.    The circuit court found no

such issue present in this case.

     While the plaintiff focuses on Dilantin being prescribed,

which likely led to the development of the Stevens-Johnson

syndrome which in turn led to renal failure and the death of

Hudgins, there was no evidence that the medical care providers at

Westlake had any choice but to administer Dilantin when Hudgins

was admitted in status epilepticus.    In other words, there was no

                                 36
1-05-1006

reasonable basis to contend that the jury might perceive the

health care providers at Westlake to be wrongdoers in prescribing

Dilantin and "acquit the defendants on that basis."   The

plaintiff's theory was that the defendants were negligent in not

discovering the subdural hematoma earlier, and had they done so,

the need to prescribe Dilantin might have been avoided.     The

administration of Dilantin at Westlake was of no consequence

under the plaintiff's theory.

     We find no error on the part of the circuit court in

rejecting this instruction.

       B.   Instruction based on IPI Civil (2005) No. 30.21

     A similar situation exists regarding the trial court's

refusal to give the plaintiff's instruction based on Illinois

Pattern Jury Instructions, Civil, No. 30.21 (2005) (hereinafter

IPI Civil (2005) No. 30.21), titled "Measure of Damages--Personal

Injury--Aggravation of Pre-Existing Condition--No Limitations."

According to the plaintiff, the tendered instruction concerned "a

pre-existing condition which rendered [Hudgins] more susceptible

to injury."   The instruction states, "If you decide for the

plaintiff on the question of liability, you may not deny or limit

the plaintiff's right to damages from this occurrence because any

injury to Vernestine Hudgins resulted from a pre-existing




                                37
1-05-1006

condition which rendered her more susceptible to injury."3

Again, the jury's verdict was that the defendants were not

negligent.    Again, the plaintiff maintains that IPI Civil (2005)

No. 30.21 "is not strictly a damages instruction," citing as her

principal authorities Dabros v. Wang, 243 Ill. App. 3d 259, 611

N.E.2d 1113 (1993), and Shvartsman v. Septran, Inc., 304 Ill.

App. 3d 900, 711 N.E.2d 402 (1999).

     The plaintiff contends the trial court refused the

instruction because "such an instruction did not belong in a



     3
         A tension between the rejected instructions likely would

have arisen had both IPI Civil (2005) No. 30.21 and IPI Civil

(2005) No. 30.23 been given in this case.    Under IPI Civil (2005)

No. 30.23, the plaintiff's contention appears to be that the

failure of the defendants to timely detect the brain bleed on or

about July 17, 1999, led to the required medical treatment of

administering Dilantin at Westlake, which gave rise to the

damages suffered by the plaintiff.    However, under IPI Civil

(2005) No. 30.21, the plaintiff's contention appears to be that

the brain bleed was a preexisting condition, apparently placing

no responsibility on the defendants for the existence of the

condition.    We agree with the defendants that the giving of both

instructions would have confused the jury.

                                 38
1-05-1006

medical malpractice/loss of change action."   We do not share the

plaintiff's understanding of the circuit court's ruling.     Rather,

the trial court ruled that the instruction did not apply "in this

medical malpractice/loss of chance case."   The circuit court's

ruling turned not on the application of the doctrine of loss of

chance but on the nature of the claimed "preexisting condition"

present in this case.   The facts of this case do not support the

plaintiff's claim of error based on the authorities cited by the

plaintiff.

     In Dabros, a mother took her months-old child to her

pediatrician because of her concern over what she characterized

as a "bruise" on the side of the infant's left leg near the knee.

Over the next few months, the mark on the infant's leg started to

rise, became discolored and continued to grow.   Eventually, the

mother was referred to the defendant doctor, who recommended

immediate surgery to remove the growth from the plaintiff's leg.

The plaintiff's theory of the case was that by excising the mark

(hemangioma) when he should not have, the defendant aggravated

her already present injury, not that he caused in any way the

hemangioma itself.   The existence of the condition of the

hemangioma was uncontested and served as the basis for the

medical treatment the plaintiff received and complained of.    We

found error in not giving IPI Civil 3d No. 30.21, but found the

                                39
1-05-1006

error harmless because "it was not possible for the jury to have

been confused as to what type of injury it was required to find

in order to hold defendant liable for negligently treating

plaintiff."    Dabros, 243 Ill. App. 3d at 270.

     Shvartsman addresses the situation where the plaintiff had a

preexisting condition that made her more susceptible to injury.

In Shvartsman, the plaintiff suffered an injury to her right

knee, resulting in a displacement of her kneecap, the claimed

injury in the lawsuit.   The plaintiff had a preexisting condition

in both knees that made her more susceptible to displace her

kneecap.    As one of two grounds for reversing the verdict for the

defendant, we found the circuit court erred in refusing to

instruct the jury with IPI Civil 3d No. 30.21 "because the jury

was not properly informed of the legal effect of a preexisting

injury."    Shvartsman, 304 Ill. App. 3d at 905.

     Both Dabros and Shvartsman stand for the proposition that

where there is evidence of a preexisting condition that is

aggravated by the claimed negligence or that makes the plaintiff

more susceptible to the type of injury complained of, IPI Civil

No. 30.21 should be given.   That proposition has no application

here.

     In her main brief, the plaintiff contends that "[i]t was

[her] theory, as articulated to the court, that the pre-existing

                                 40
1-05-1006

condition, the brain bleed, without treatment, developed into a

subdural hematoma that caused seizures."   The defendants

challenge this assertion: "[I]t was never quite clear in the

trial court exactly what plaintiff considered the 'pre-existing

condition rendering her more susceptible to injury' to be.

Sometimes she argued that it was 'the need for anticoagulation'

*** other times that it was the subdural hematoma."

     Regardless, what is clear is that the "brain bleed" was not

a preexisting condition in the manner of the preexisting

conditions in Dabros and Shvartsman.   Contrary to the plaintiff's

claim, the brain bleed was not a preexisting condition but a

condition that may have arisen sometime after she was first

admitted to Rush in July 1999 (there was conflicting expert

testimony as to when the brain bleed may have begun).   This

condition in turn triggered medical treatment that led to the

development of Stevens-Johnson syndrome, which in turn led to

renal failure.   As made clear by the instructions, the jury was

charged with determining whether the brain bleed developed during

Hudgins's stay at Rush.   If the brain bleed arose after Hudgins

left the care of the defendants, then no liability could attach

to the defendants for their failure to detect a condition that

did not exist when she left the defendants' care.   Thus, the

brain bleed was not a preexisting condition as that term is used

                                41
1-05-1006

in either Dabros or Shvartsman to warrant the giving of IPI Civil

(2005) No. 30.21.    The circuit court did not err in rejecting the

plaintiff's proposed instruction.4

                             CONCLUSION

     For the reasons stated above, the judgment of the circuit

court of Cook County is affirmed.

     Affirmed.



     4
         We also question the role IPI Civil (2005) No. 30.21 would

have played in the jury's deliberation in light of the following

non-IPI "loss of chance" instruction given over the defendants'

objection.    "If you decide or if you find that the plaintiff has

proven that a delay in diagnosis and treatment of Vernestine

Hudgins' brain bleed lessened the effectiveness of the medical

services which she received, you may consider such delay as one

of the proximate causes of her claimed injuries and death."     The

jury's verdict for the defendants logically requires the

conclusion that the delay in diagnosis and treatment of the brain

bleed was not a proximate cause of the claimed injuries.    Because

there was no negligent delay, it necessarily follows that the

circuit court's rejection of the instruction along the lines of

IPI Civil (2005) No. 30.21 was at most harmless error.    See

Dabros, 243 Ill. App. 3d at 270.

                                 42
1-05-1006

    CAHILL, P.J., and R. GORDON, J., concur.




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