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Fosse v. Pensabene11/1/2005
This matter comes before the court as an interlocutory appeal brought pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). Plaintiff, Linda Fosse, as executor of the estate of Robert Pace, deceased, appeals the trial court's order barring the introduction of the results or other evidence obtained from the autopsy performed upon the decedent. In so ruling, the trial court certified three questions for appeal:
"Whether an autopsy of the plaintiff's decedent performed during the pendency of litigation was discovery";
"If the answer to the preceding question is in the affirmative, whether it is an abuse of discovery rules for a plaintiff to obtain an autopsy on the corpse of the plaintiff's decedent without notice to the defense"; and
"If the answer to each of the preceding questions is in the affirmative, whether barring introduction of evidence obtained from such autopsy is an appropriate sanction."
In an order dated January 21, 2005, this court denied plaintiff's application for interlocutory appeal. See Fosse v. Pensabene, No. 2-- 04--1267 (2005). Plaintiff then petitioned for leave to appeal to the Illinois Supreme Court. In a supervisory order entered May 25, 2005, the Illinois Supreme Court denied plaintiff's petition for leave to appeal, but ordered this court to vacate its January 21, 2005, order and to allow the interlocutory appeal. See Fosse v. Pensabene, 215 Ill. 2d 595 (2005). In compliance with our supreme court's directive, we entered such an order on June 24, 2005, and now enter this opinion. Having considered the merits of the present case, we answer the first certified question in the affirmative, we answer the second certified question in the negative, we decline to answer the third certified question, and we reverse and remand.
The record reflects that on May 6, 2003, the decedent, Robert Pace, underwent a medical procedure at SwedishAmerican Hospital in Rockford (the hospital). During the procedure, a cardiologist performed a cardiac catheterization and coronary angiography on Pace. Shortly thereafter, Pace experienced low blood pressure, low hemoglobin level, a firm and distended abdomen, and sweating. Defendant, Dr. Joseph Pensabene, was notified by telephone of Pace's symptoms, and he ordered a CT scan. After receiving the results of the scan, defendant ordered continued observation of Pace. Approximately one hour later, defendant was informed that Pace's hemoglobin level had continued to drop, and defendant ordered that Pace be transferred to the cardiac care unit. Pace died approximately one hour later.
On August 8, 2003, plaintiff, the decedent's daughter, initiated a cause of action against defendant for medical negligence. Plaintiff's complaint included one count brought pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2002)) and one count brought pursuant to the Survival Act (755 ILCS 5/27--6 (West 2002)). Plaintiff alleged, inter alia, that all of defendant's care and treatment of the decedent was via telephonic communication with the decedent's nurses and that defendant failed to see or physically examine the decedent until he was transferred to the cardiac care unit. Plaintiff alleged, inter alia, that defendant's failure to perform a proper physical examination of the decedent proximately caused his suffering and his death. Plaintiff named as respondents in discovery the hospital, Rockford Cardiology Associates, Ltd., Jagdeep Tung, Marc Whitman, Erik Englehart, and the cardiologist, Jagdeep Sagharwal. Defendant filed an answer, denying plaintiff's material allegations.
On August 19, 2003, defendant served "Wrongful Death Interrogatories" requesting plaintiff to stat
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