Smith v. Pavlovich

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Smith v. Pavlovich

State: Illinois

Court: 5th District Appellate

Docket No: 5-08-0256 Rel

Case Date: 09/10/2009

Preview:NO. 5-08-0256
NOTICE Decision filed 09/10/09. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ___________________________________________________________________________ WANDA MAE SMITH, Individually and as Special Administrator of the Estate of Crystal Smith, Deceased, ) Appeal from the ) Circuit Court of ) Jackson County. ) Plaintiff-Appellant, ) ) v. ) No. 04-L-12 ) JAMES J. PAVLOVICH, M.D., KATHRYN A. ) CHURLING, M.D., and PATRICIA G. DILLARD, ) R.N., ) ) Defendants-Appellees, ) ) and ) ) RENATO R. KATUBIG, M.D., and AJAY K. ) GOPALKA, M.D., ) Honorable ) E. Dan Kimmel, Defendants. ) Judge, presiding. __________________________________________________________________________ JUSTICE W ELCH delivered the opinion of the court: This is a medical malpractice action brought by the plaintiff, Wanda Mae Smith, individually and as the special administrator of the estate of her deceased daughter, Crystal Smith, against a licensed advanced practice nurse, Patricia G. Dillard, R.N., and two doctors, James J. Pavlovich, M.D., and Kathryn A. Churling, M.D., all of whom practiced at the Carbondale Clinic.1 Crystal was born December 2, 1998, and died March 18, 2002, at the approximate age of three years, from what is believed to have been bacterial meningitis that

disposition of the same.

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While the original action included two other doctors who at various times had treated

Crystal, those doctors were dismissed out of the cause and are not parties to this appeal. 1

attacked her brain. In her complaint filed in the circuit court of Jackson County on February 2, 2004, the plaintiff alleges that the defendants were negligent in failing to recommend and administer the vaccine PCV7, known as Prevnar, which she alleges would have prevented the infection. Crystal visited the Carbondale Clinic as a patient a total of six times. On each occasion she saw only nurse Dillard. Each of these visits was a "focused visit," that is, it was made to address a particular problem such as a cold or a sore throat. None of the visits was for a "well-baby" checkup, which was typically of broader scope than a focused visit. Crystal never saw Dr. Pavlovich or Dr. Churling on any of these focused visits. Crystal was in the presence of Dr. Pavlovich on occasion when she accompanied her mother and her younger sister, Gabrielle, on Gabrielle's well-baby visits with Dr. Pavlovich. Dr. Pavlovich was Gabrielle's pediatrician. He never examined or treated Crystal. Dr. Churling never saw Crystal. Crystal's mother was never offered the vaccine Prevnar for Crystal on any of these focused visits with nurse Dillard or while in the presence of Dr. Pavlovich during Gabrielle's visits. After several days of a jury trial, upon the motion of the defendants, the circuit court entered several orders that resulted in directed verdicts in favor of each defendant and against the plaintiff. The circuit court granted the defendants' motion to bar the testimony of Dr. Marc Weber regarding the standard of care applicable to advanced practice nurses, because Weber was a physician and not an advanced practice nurse. Because the plaintiff had no other expert witness to testify to the applicable standard of care of an advanced practice nurse and because nurse Dillard had testified that she had met the standard of care, the circuit court directed a verdict in her favor. With respect to the physician defendants, Dr. Pavlovich and Dr. Churling, the circuit court held that the plaintiff was unable to establish a physicianpatient relationship and therefore could not prove that the defendant physicians owed Crystal

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a duty of care. Accordingly, the court directed verdicts in favor of the physician defendants. The plaintiff appeals these orders, as well as the circuit court's denial of her motion to amend her complaint to add a new theory of negligence

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