author: JUSTICE H. LEWIS JUSTICE STOUDER,

text:
    KOMATSU DRESSER COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Peter J. Lishamer, Sr., Appellee).
    Second District (Industrial Commission Division)
    No. 2—91—1237WC
    Opinion filed October 8, 1992.

      STOUDER, J., dissenting.
    Mark A. Braun, of Braun, Lynch, Smith & Strobel, of Chicago, for appellant.
    Vito D. DeCarlo, P.C., of Chicago, for appellee.
   JUSTICE H. LEWIS

delivered the opinion of the court:

Claimant, Peter J. Lishamer, Sr., filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.), for a lower-back injury incurred while in the course of his employment with the respondent, Komatsu Dresser Company. Subsequently, the claimant filed a section 19(b — 1) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b — 1)) petition. Following the hearings on his section 19(b — 1) petition, the arbitrator held that the claimant failed to prove that his injury arose out of and in the course of his employment on March 22, 1989, and denied the claimant benefits. On appeal to the Industrial Commission (the Commission), the Commission reversed the decision of the arbitrator and held that the claimant had sustained an accidental injury arising out of and in the course of his employment and awarded the claimant temporary total disability (TTD) benefits for 37% weeks and medical expenses of $622. The circuit court confirmed the Commission’s decision, and the respondent appeals.

On appeal, the respondent contends that the Commission’s decision that the claimant’s lower-back injury was causally connected to his employment was against the manifest weight of the evidence and that the Commission failed to give due deference to the arbitrator’s decision and, specifically, to the arbitrator’s determination of the witnesses’ credibility. We affirm for the reasons set forth below.

At the arbitration hearing on May 11, 1990, the claimant testified that he had worked as a machinist since 1973, and on March 22, 1989, he was so employed by the respondent. His job duties as a machinist consisted of turning raw metal into usable parts for tractors built at the respondent’s plant. To accomplish this task, the claimant lifted parts weighing between 30 and 40 pounds from a box located next to his machine and placed the parts into the ma-¿hiñe for processing. The box containing the parts was on a skid, which placed the box waist high and required the claimant to bend from his waist to lift the part out of the box.

The claimant testified that on March 22, 1989, he was working ;he second shift, i.e., from 3:30 p.m. to midnight, and at about 10 D.m., he bent over to pick up a part out of the box, felt a sharp sain at the “bottom” of his back, and simultaneously sneezed, which caused the pain to spread throughout his entire lower back, it the time of the incident, the claimant explained that the box ;ontaining the parts was three-quarters empty as he had been at work for six hours. Following this incident, the claimant straight-med up and sat down at his workbench.

Sometime between 10:30 p.m. and 11 p.m., the claimant’s fore-nan, Les Lagoo, came by the claimant’s machine to obtain a pro-luction count. At this time, the claimant advised the foreman that íe had felt a sharp pain in his back when he bent over to obtain a >art from the box and that he sneezed and felt the pain spread hroughout his back. When the foreman asked if he was all right, ;he claimant responded that he thought so, but that he would just ¡it until his shift ended, if his production for the day was sufficient. Che foreman agreed, so the claimant sat at his workbench the renaming hour of his shift.

When the claimant left work to go home, he was still in pain, md he had difficulty getting in and out of the car. The following norning, the claimant was unable to get out of bed due to the pain n his back. The claimant’s wife arrived home from work around loon, helped him out of bed, and took him to St. Therese’s Medical Center. At St. Therese’s, he was given pain medication and muscle •elaxants and was advised to alternate heat and cold packs on his )ack. He was also told to stay off work for a week.

That same day, the claimant called Jane Webber, the respond-:nt’s nurse, and told her he had injured his back the previous eve-ling when he bent over and sneezed. Webber advised him to come n and see the company doctor, Dr. Loyd, on the following Tuesday, ¡ince the weekend was a holiday. The claimant saw Dr. Loyd as requested, and the doctor increased the dosage of his pain medication md his muscle relaxants. Dr. Loyd told him he could return to vork on March 31, 1989.

The claimant returned to work on March 31, 1989, and the fore-nan assigned him to the floor sweeper that day. This work required he claimant to sit on the machine, but after a half hour, because he floor was rough and the sweeper had no suspension, the claimant stopped working due to the pain in his back. The claimant left work after four hours.

The following day, April 1, 1989, the claimant went to see Dr. Maniquis. Dr. Maniquis took X rays, prescribed medication, and recommended that he start physical therapy in a week or so. Dr. Maniquis released him for light-duty work as of May 29, 1989, with the restriction of no bending, twisting or stooping and with a lifting restriction of 20 pounds. The doctor also advised him not to work on the floor sweeper. The claimant called the company nurse and advised her that the doctor had released him for light-duty work; however, Webber told the claimant the respondent had no work for him with those restrictions.

In July 1989, both Dr. Maniquis and the company physician released the claimant for light-duty work, with a lifting restriction of 35 pounds and no bending, twisting or stretching. Again the claimant was advised that the respondent had no work for him with these restrictions. The claimant had not returned to work at the time of the arbitration hearing. In addition to Dr. Maniquis and Dr. Loyd, the claimant had been to Drs. Apfelbach and Pawl at the respondent’s request.

The claimant testified that, currently, he has constant pain at the base of his spine and in his left thigh. He explained that sometimes the pain is worse than others, and that there is no explanation as to the cause of the pain.

On cross-examination, the claimant admitted there were no witnesses to his accident. The claimant denied that he told the company nurse that he had hurt his back when he sneezed and before bending over to pick up a part. The claimant stated that at the time of his injury he weighed 330 pounds. Further, the claimant admitted that in November 1989 his back “went out” when he attempted to hang a picture frame at home. In addition, the claimant testified that he had had two prior back injuries, one in 1978 and one in 1987, but he had not missed any work and he had not filed a worker’s compensation claim for these injuries.

Jane Webber, the respondent’s nurse, testified that she had talked to the claimant in March 1989 about his medical condition. It was her recollection that the claimant had told her, in a phone conversation on March 23, 1989, that he had hurt his back when he had sneezed on the previous night and that he was unable to come to work. She instructed the claimant to see Dr. Loyd on the following Tuesday. She stated that it was her method of making notes when she placed the word “sneezed” in parenthesis above her written notes in the claimant’s charts in March 1989.

Leslie Lagoo, the claimant’s foreman, testified that on the evening of March 22, 1989, at about 11 p.m., the claimant told Lagoo that he had bent over the box to obtain a part, sneezed and felt a pain in his back. Lagoo corroborated the claimant’s testimony that the claimant asked to sit the remainder of his shift. Lagoo’s testimony also confirmed the claimant’s testimony that the parts used in the claimant’s machine were kept in a waist-high box and that the usual procedure to obtain a part was to bend over the box and pick up the part.

Two evidence depositions and various medical reports were admitted into evidence. Dr. Maniquis testified in his evidence deposition that he had treated the claimant in the past, when he was the respondent’s physician from 1974 to 1987. He next saw the claimant on April 1, 1989, for a lower-back injury. At that time, the claimant told the doctor he had injured his back at work on March 22, 1989, when he bent over to pick up a part, sneezed and felt pain in his lower back. According to Dr. Maniquis, the claimant had attempted to return to work after a week but left when his back started hurting again.

When Dr. Maniquis saw the claimant, the claimant had leg pains and some numbness over the lateral aspect of his thigh. Dr. Mani-quis’ examination of the claimant revealed that he weighed 290 pounds, he had limited flexion in his back, he had tenderness on palpation of the left sacroiliac and in the lumbosacral area, and the muscles around the claimant’s spine were tight on palpation. Dr. Maniquis had X rays taken of the claimant’s lower back. The doctor took the claimant off work, and, subsequently, he ordered physical therapy for the claimant. The claimant’s back pain improved, and in May 1989, the doctor released the claimant for work with the restrictions of a lifting limit of 20 pounds, and no bending, twisting or stooping. The doctor also advised the claimant not to drive a sweeper. The doctor was aware that the claimant did not return to work at that time because there was no job available with those restrictions.

The doctor again released the claimant for work in July 1989, but with a lifting restriction of 35 pounds and no bending, twisting or stooping, but again the respondent was unable to offer the claimant work with these restrictions. When the doctor saw the claimant in November 1989, the claimant told the doctor that his back started hurting again after he attempted to hang a picture frame at home, so the doctor imposed a 25-pound lifting restriction. The doctor last saw the claimant in December 1989, but the doctor testified he had not lifted the claimant’s work restrictions. Dr. Maniquis did not think the claimant could work without restrictions because of the numbness in the claimant’s leg and his back pain. The doctor believed these symptoms indicated the claimant had a pinched nerve.

The doctor testified that the claimant had a preexisting condition of spondylolisthesis and spondylosis of the lower lumbar spine. However, his diagnosis of the claimant’s condition was low-back-pain syndrome in addition to the preexisting conditions. Dr. Mani-quis admitted on cross-examination that it was possible that a sneeze alone could bring about an onset of the claimant’s symptoms because of his underlying condition, but he stated that bending and sneezing together placed more stress on the claimant’s back than either event would separately. Dr. Maniquis was aware that the claimant’s work required him to bend over and pick up parts on a daily basis.

Dr. Apfelbach testified in his evidence deposition that he is an orthopedic surgeon. He had seen the claimant on October 16, 1989, at the request of the respondent’s insurance carrier. According to Dr. Apfelbach, his only objective finding of the claimant’s condition was that of obesity. He noted that the claimant had a limited range of motion in his back, but he did not find this evidence reliable, as he felt the claimant had control over whether he did these motions to the fullest extent. The doctor did not observe any muscle spasm when the claimant did the range-of-motion tests. Dr. Apfelbach corroborated that the claimant had preexisting conditions of spondylo-listhesis and spondylosis. It was Dr. Apfelbach’s opinion that the claimant’s “backache” was secondary to his spondylolisthesis with his obesity chronically irritating this condition. It was also the doctor’s opinion that the claimant could perform his regular work. The doctor found no evidence of nerve irritation or radiculopathy. On cross-examination, the doctor admitted that the claimant’s preexisting condition could be temporarily aggravated by bending over to pick up a part and sneezing, but he was of the opinion the aggravation would not be permanent. The doctor did state, “You’re not supposed to be bending over all the time, you’re supposed to bend your knees when you move.”

The medical reports from St. Therese Medical Center indicated that the claimant came to the emergency room on March 23, 1989, for treatment of his lower back. The medical report gave the history of the claimant’s accident at work. The diagnosis of the claimant’s condition made at the medical center on March 23, 1989, was acute lumbosacral strain.

The notes from Dr. Loyd, the respondent’s company physician, indicated that he had treated the claimant after March 22, 1989, for chronic lumbosacral strain, for which he prescribed medication and physical therapy. The physical therapy notes included in Dr. Loyd’s records revealed that the claimant had limited range of motion in his lower back and that he had tenderness in the lumbosacral area upon palpation.

In Dr. Ronald Pawl’s letter report of December 7, 1989, the doctor stated that he had examined the claimant on December 1, 1989. In this letter, Dr. Pawl’s history of the claimant’s accident was substantially similar to the claimant’s testimony of his accident at the arbitration hearing. The doctor noted that the claimant complained of low-back pain and numbness and pain in the lateral aspect of his thigh radiating down from his hip to his knee. The doctor found the claimant’s past medical and surgical history unremarkable, but the doctor noted the claimant was severely obese. Dr. Pawl reviewed the claimant’s X rays, from which the doctor determined the claimant had a preexisting condition in his lower back which was unrelated to his injury. Dr. Pawl stated that “[b]ecause he has symptoms that are significant in his lateral thigh, I think it is imperative to determine whether or not there is evidence for a nerve root entrapment.” The doctor stated in his letter that the claimant’s obesity would prevent investigation by either computerized tomographic scanning or magnetic resonance imaging, but that he recommended the claimant undergo a myelogram. Dr. Pawl concluded, “If there is no nerve root involvement, the only disorder in his spine are [sic] the pre-existing degenerative and congenital conditions.”

In a letter from Dr. Barry L. Fischer dated June 23, 1989, Dr. Fischer indicated that he had seen the claimant on May 9, 1989. His history of the claimant’s back injury was the same as the claimant’s testimony of the accident. When Dr. Fischer saw the claimant, he complained of pain in his lower back with numbness in the left thigh. The doctor’s examination of the claimant revealed that the claimant was 5 feet 11 inches tall, weighed 300 pounds, had tenderness and spasm to palpation and pressure in the left lumbosacral and paravertebral area, and had spasm radiating on the left side and down the posterior aspect of the left leg, which was indicative of left sciatic radiation. He, too, found the claimant to have limited range of motion in flexion of his lower back, but, in addition, the doctor determined that the claimant had a positive Lasegue sign on the left. After reviewing the claimant’s X rays, Dr. Fischer determined that the claimant had a preexisting condition of spondylolis-thesis. Dr. Fischer’s diagnosis of the claimant’s condition was a lumbosacral strain injury with sciatic radiation of spasm on the left and down the posterior of the left leg. He also stated there was a possible herniated-disc syndrome of the lumbar area.

From the foregoing evidence, the arbitrator held that the claimant failed to prove he had sustained an accidental injury during the course of his employment on March 22, 1989. As was noted previously, the Commission reversed and held that the claimant’s injury did arise out of and in the course of his employment and awarded him TTD and medical expenses. The circuit court confirmed the Commission’s decision.

On appeal, the respondent first contends that the Commission’s decision was against the manifest weight of the evidence. Specifically, the respondent argues that because the claimant was engaged in a normal, daily activity, i.e., bending over, and because the claimant was not exposed to a greater risk than the general public, his injury to his lower back was not an accidental injury for which compensation was payable. The respondent further argues that the claimant’s preexisting conditions of his obesity and his spondylolis-thesis were the cause of the claimant’s current condition of ill-being. The respondent’s second issue raised on appeal is that where, as- here, the Commission did not consider additional evidence, the Commission failed to give due deference to the arbitrator’s decision and, in particular, the Commission did not give weight to the arbitrator’s assessment of the witnesses’ credibility.

In considering the respondent’s first contention, that the Commission’s determination that the claimant’s injury arose out of and in the course of his employment was against the manifest weight of the evidence, we are cognizant that the law in this area is well established. For an injury to “arise out of” employment, the injury must have occurred from some risk connected with, or incidental to, the employment, in order to create a causal connection between the employment and the accidental injury. (Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, 541 N.E.2d 665; Hopkins v. Industrial Comm’n (1990), 196 Ill. App. 3d 347, 553 N.E.2d 732.) If the injury occurs when the employee was performing acts he was instructed to perform by his employer, acts he had a common-law or statutory duty to perform, or acts he might reasonably be expected to perform incident to his assigned duties, then the injury arose out of his employment. (Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 541 N.E.2d 665; Hopkins v. Industrial Comm’n, 196 Ill. App. 3d 347, 553 N.E.2d 732.) Also, if the employee is exposed to a risk to a greater degree than the general public, the injury is similarly considered to have arisen out of his employment. (Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 541 N.E.2d 665; Hopkins v. Industrial Comm’n, 196 Ill. App. 3d 347, 553 N.E.2d 732.) However, if the employee’s exposure to the risk is equal to that of the general public, his injury is not compensable. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 541 N.E.2d 665; Hopkins v. Industrial Comm’n, 196 Ill. App. 3d 347, 553 N.E.2d 732.

Additionally, under the law, an employer takes its employees as it finds them, and a preexisting condition does not bar compensation for an injury if the employment was also a causative factor. (Quality Wood Products Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 417, 454 N.E.2d 668.) The only exception to this general rule is that if an employee’s health has so deteriorated that any normal daily activity is overexertion, compensation will be denied. Quality Wood Products Corp. v. Industrial Comm’n, 97 Ill. 2d 417, 454 N.E.2d 668.

In the instant case, the Commission stated its decision was based in pertinent part on the following:

“The objective findings in this case show that Petitioner had a preexisting condition of spondylolisthesis and that he was obese. The doctors all agreed and acknowledged that bending could aggravate this preexisting condition. Respondent’s examining physician, Dr. Apfelbach, thought the back pain was secondary to the preexisting condition. Dr. Maniquis also acknowledged that the combination of lifting and sneezing would be stressful on the back and would be more stressful than just one or the other.”

This paragraph of the Commission’s decision reflected that the Commission found that the claimant’s act of bending on March 22, 1989, aggravated his preexisting condition and caused his present condition of ill-being. This determination was not against the manifest weight of the evidence.

The medical evidence presented revealed that the claimant did have the preexisting condition of spondylolisthesis and spondylosis in his lower back; however, as the Commission found, Dr. Maniquis testified that bending, combined with sneezing, presented a stressful situation for the claimant’s back. Dr. Apfelbach, the respondent’s physician, acknowledged that these activities could temporarily aggravate the claimant’s condition. None of the medical evidence presented established that the claimant’s condition had so deteriorated that any activity would cause injury, and, in fact, although the claimant’s preexisting conditions and his obesity were of a longstanding nature, the claimant had been able to do his work for years without difficulty.

Further, it was a reasonable inference that the claimant’s acts of bending required by his work exposed the claimant to a greater degree of risk than that of the general public. Dr. Apfelbach testified that it is not a normal activity to bend from the waist, but that a person must bend his knees when he lifts a part. The claimant’s testimony and Lagoo’s testimony established that the claimant’s work required him to regularly bend from the waist and lift parts weighing between 15 and 40 pounds out of a box and that the location of the box did not enable the claimant to bend his knees while doing this activity. The frequency of this activity and the method in which the claimant had to bend and lift without bending his knees increased the claimant’s exposure to risk of injury from the bending than that of the general public, and, thus, the fact that bending is a normal activity did not preclude a finding that the claimant’s injury arose out of his employment. The foregoing evidence was sufficient to support the Commission’s decision.

The respondent’s second contention is that this court must give extra scrutiny to the Commission’s decision, since the Commission considered the case without hearing additional evidence. The respondent argues that because the Commission overturned the arbitrator’s decision, it is clear that the Commission did not give due deference to the arbitrator’s decision and, in particular, the Commission did not give due deference to the arbitrator’s determination of credibility. In support of this argument, the respondent cites to this court’s decision in Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379. This argument is without merit.

In a subsequent case, Dillon v. Industrial Comm’n (1990), 195 Ill. App. 3d 599, 552 N.E.2d 1082, this court repudiated the statement in Cook that a court of review is required to give “extra scrutiny” to a Commission decision overturning the arbitrator’s determination without considering additional evidence and reiterated the standard to be applied on review. In Dillon, we stated as follows:

“It is well settled that the Commission is the judge of the credibility of the witnesses. [Citation.] It is the peculiar province of the Commission not only to determine the credibility of witnesses but also to weigh the testimony and to determine the weight to be given to the evidence. [Citations.] Regardless of whether the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator’s findings.” (Dillon v. Industrial Comm’n, 195 Ill. App. 3d at 607, 552 N.E.2d at 1087.)

This court further stated in Dillon that the Commission’s decision will only be overturned on review if its decision is against the manifest weight of the evidence. Dillon v. Industrial Comm’n, 195 Ill. App. 3d 599, 552 N.E.2d 1082.

Here, the Commission set forth in its decision that it found the claimant to be credible, since the claimant’s testimony about his injury at work was corroborated by the medical evidence. The Commission noted that the only contradiction to the claimant’s testimony was provided by the respondent’s nurse, which the Commission held was not persuasive in determining the claimant incredible. We do not find that the Commission’s determination of credibility was against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Lake County, confirming the Industrial Commission’s decision, is affirmed.

Affirmed.

McCULLOUGH, P.J., and WOODWARD and RAKOWSKI, JJ., concur.

JUSTICE STOUDER,

dissenting:

I disagree with the result reached by the majority of the court. I believe the decision of the Commission is against the manifest weight of the evidence.

I have no quarrel with the rules as recited by my colleagues. It is the application of those rules to the facts of this case which disturbs me.

So far as I am concerned, the claimant was performing a normal activity at the time of the incident, and he conducted this activity for many years as a matter of course. The additional activity of sneezing, which the medical evidence indicates triggered the incident, is likewise a normal activity. These activities are no different from those of the general public. Even viewing the medical evidence most favorable to the claimant, the most that can be said is that the incident occurred while the claimant was working. Since the activities were normal, the incident could have occurred at some other time and place without being related to the claimant’s employment activities. There seems to be a tendency to hold a compensable injury occurs if it happens on the employer’s premises. This is not the rule.

I do not believe the evidence shows the activities of the claimant exposed him to risks different from those of the general public, and I would reverse the Commission’s result.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    JOHN WEBBER, Guardian of Robert Webber, Plaintiff-Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants-Appellees.
    Fourth District
    No. 4—92—0055
    Opinion filed September 30, 1992.
    Rehearing denied November 16, 1992.

      James Walker, Ltd., of Bloomington, for appellant.
    Bret S. Babcock, of Peoria, for appellee W.R. Grace & Co.
    Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, for other appellees.
   JUSTICE LUND

delivered the opinion of the court:

There are two issues which arise in this appeal as a result of summary judgment having been entered against plaintiff in this asbestos injury case: (1) whether the movant in a summary judgment motion can prove the absence of a genuine issue of material fact by demonstrating that a nonmovant cannot prove an essential element of his case at trial; and (2) whether the Jones affidavit created a genuine issue of material fact.

Our answer is affirmative as to issue (1) and negative as to issue (2). In so deciding, we affirm the trial court’s entry of summary judgment.

On December 20, 1991, the circuit court of McLean County entered an order granting summary judgment in favor of the defendants, Armstrong World Industries, Inc. (Armstrong), • GAF Corporation (GAF), National Gypsum Company (National Gypsum), and W.R. Grace & Company (Grace). The trial court held that the plaintiff John Webber (John), as guardian for Robert Webber (Robert), did not establish that he would be able to prove an essential element of his case at trial, i.e., identification of defendants’ products as causing the injury to Robert. Therefore defendants were entitled to judgment as a matter of law. Plaintiff appeals, contending the trial court erred in granting summary judgment in favor of the defendants because (1) the trial court’s holding impermissibly shifts the burden of persuasion on the nonmovant in a summary judgment motion; and (2) the affidavit of Mike Jones creates a genuine issue of material fact.

On December 30, 1988, Robert filed a multicount complaint against numerous defendants, including Armstrong, GAF, National Gypsum, and Grace, seeking damages for personal injury incurred as a result of his exposure to defendants’ asbestos products. Robert claimed to have contracted asbestosis as a result of exposure to asbestos while working as a boilermaker in the construction industry from 1946 through 1984. During the course of the proceedings, Robert developed Alzheimer’s disease and on April 5, 1991, John was appointed Robert’s guardian for the purpose of prosecuting this action.

On September 13, 1991, defendants Armstrong, GAF, and National Gypsum filed a motion for summary judgment with no eviden-tiary materials attached thereto. Defendants’ motion stated Robert, who suffers from Alzheimer’s disease, could not identify (1) any particular asbestos product he worked with or around, (2) any specific jobsite, and (3) the manufacturer of any asbestos-containing products which he may have worked with or around at any jobsite. Defendants requested that summary judgment be granted because plaintiff had failed to come forward with evidence of exposure to their products.

On September 19, 1991, defendant Grace moved for summary judgment, adopting the argument portion of the motion for summary judgment of September 13, 1991, filed by Armstrong, GAF, and National Gypsum. Grace maintained that neither Robert nor John could identify any asbestos-containing product to which Robert had been exposed. Attached to Grace’s motion were excerpts from the depositions of Robert and John. Excerpts of Robert’s deposition contained the following statements: (1) Robert could not identify specific trade names of asbestos he had worked with; he only knew the products as “asbestos”; (2) at every site where he worked, he worked around asbestos-containing products; and (3) he could not remember the manufacturer of any particular asbestos-containing product that he used or he worked around at any particular jobsite. Excerpts of John’s depositions state that (1) of all Robert’s co-workers, John had only spoken with Joe Reed and had not discussed the lawsuit with him; (2) John had no personal knowledge about manufacturers of asbestos-containing products that Robert may have worked with; and (3) John knew of no other source of information that showed Robert had worked with a specific manufacturer’s asbestos product.

On October 23, 1991, the hearing was held on the defendants’ motion for summary judgment. On that date, plaintiff filed the affidavit of Mike Jones, a co-worker of Robert, which states:

“Mike Jones, being duly sworn upon his oath, states as follows:
1. He is a resident of Pekin, Illinois.
2. During the course of his occupational career, he had occasion to work on repeated occasions with Robert Webber, prior to Robert Webber’s retirement.
3. On repeated occasions he was employed at the same job site as Robert Webber, including job sites in Indiana, where insulation work was done in connection with boilers and pipes.
4. Affiant recalls Robert Webber being present when affiant, Webber, and others, used products containing asbestos from the following manufacturers: [Celotex Corporation; Armstrong Cork; Eagle-Picher; Fibrebrand Corp.; Owens-Corning Fiberglass; Keene Corp.; Owens-Illinois; Pittsburg-Corning Corp.; GAF Corp.; W. R. Grace; and National Gypsum. (Defendants’ names handwritten in on lines provided.)]
5. When the products containing asbestos of each of the manufacturers named in paragraph 4 were used, either directly by Webber, affiant, or others in the vicinity where affiant and Webber were working, dust was given off into the atmosphere, including the atmosphere where Robert Webber was employed.”

During the hearing on the motion for summary judgment on October 23, 1991, defendants orally moved to strike the Jones affidavit. Basis for the motion to strike is not clear, although it appears to be a similar basis as complained of on appeal, i.e., Jones does not specify what products he is talking about, how he knows the products contain asbestos, how he knew who manufactured the product, and how he knew Robert inhaled any asbestos.

The trial court, citing Kozak v. Armstrong World Industries, Inc. (1991), 213 Ill. App. 3d 1061, 572 N.E.2d 279, stated that it felt the Jones affidavit was insufficient as to certain specifics, i.e., identifying products with particularity, place of exposure, time of exposure, to provide the kind of evidence needed by a plaintiff in an asbestos case. Therefore, the trial judge gave the plaintiff an option:

“I’m going to give you the opportunity to go out and depose Mike Jones and present his deposition in opposition to the motion for summary judgment, or you can stand on the *** affidavit, in which case, I’m going to grant the motion for summary judgment.”

Principal counsel for plaintiff was not present on that day and substitute counsel did not wish to make the decision, so the trial judge took the matter under advisement. The docket entry for that day indicates the motion to strike was denied.

On December 20, 1991, a hearing was again held on the motion for summary judgment. At that time, plaintiff indicated he would not depose Jones because he believed the affidavit was sufficient to defeat the defendants’ motions for summary judgment. The trial court entered summary judgment in favor of the defendants, stating:

“[T]he affidavit is not sufficiently particular to identify specific products at specific job sites, and *** therefore, I am going to find that there is no genuine issue of material fact, and that there is an inherent weakness in the Plaintiff’s case, that being an inability to particularly identify products to particular job sites as required in Kozak ***.”

The order of summary judgment dated December 20, 1991, contains a Rule 304(a) (134 Ill. 2d R. 304(a)) finding that there is no just reason to delay enforcement or appeal.

I. Whether The Movant In A Summary Judgment Motion Can Prove The Absence Of A Genuine Issue Of Material Fact By Demonstrating That A Nonmovant Cannot Prove An Essential Element Of His Case At Trial

In the present case, the basis for the summary judgment is not the absence of a question of fact necessary for plaintiff to prove his case, but the inability of the plaintiff, because of his mental incapacity, to specifically link himself to use of a specific defendant’s product. For purposes of the summary judgment motion, there appears to be no doubt Robert worked with (and where) asbestos was involved, and that he was injured by asbestos entering his lungs. However, the specific manufacturers and suppliers on various jobs cannot be identified. Plaintiff contends the trial court, in granting summary judgment, im-permissibly shifted the burden of proof to the nonmovant by forcing plaintiff to prove with particularity that Robert was exposed to defendants’ products, despite the lack of an affirmative showing by-defendants that Robert had not been exposed to the defendants’ products.

Generally, the purpose of summary judgment is to determine whether a genuine issue of material fact exists. (Kobus v. Formfit Co. (1966), 35 Ill. 2d 533, 538, 221 N.E.2d 633, 635.) A motion for summary judgment should only be granted when:

“[T]he pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).)

(See also Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) In deciding whether to grant summary judgment, a court shall construe the pleadings, affidavits, depositions, admissions, and exhibits strictly against the movant and liberally in favor of the opponent. In reviewing a trial court’s ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case to determine whether the trial court was correct. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.

In deciding whether summary judgment can be granted when defendant points out plaintiff cannot prove a necessary element of his case, we consider the purpose of summary judgment and the discovery processes available. Section 2 — 1005(c) of the Code of Civil Procedure (Code) mandates judgment be rendered if it is established there is “no genuine issue as to any material fact.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).) Of course, the present defendants cannot be held liable if plaintiff cannot establish Robert’s injury was caused by their specific products.

Section 2 — 1003 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1003) and Supreme Court Rules 201 through 224 (134 Ill. 2d Rules 201 through 224) provide liberal discovery to all parties. The discovery may indicate conduct by defendants requiring a finding of liability. The discovery may establish that plaintiff does not have evidence of all the necessary elements of his case. Is there not an uncalled-for limitation on the benefit of discovery if, upon ascertaining that he cannot prove his case, plaintiff can escape summary judgment on the theory that he, the nonmovant, does not have any burden with respect to the motion for summary judgment?

To successfully pursue a summary judgment in a case such as this, a defendant has the initial burden of establishing a negative— that plaintiff cannot prove an essential element of his or her case. In a product liability action, plaintiffs must identify the manufacturer of the product and establish a causal relationship between the injury and the product. (Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill. 2d 401, 405-06, 256 N.E.2d 6, 8; Zimmer v. Celotex Corp. (1989), 192 Ill. App. 3d 1088, 1091, 549 N.E.2d 881, 883.) We conclude a defendant can obtain a summary judgment by establishing plaintiff cannot prove a necessary element of plaintiff’s case. See Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 529, 541 N.E.2d 805, 808; Zimmer, 192 Ill. App. 3d at 1091, 549 N.E.2d at 884; Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323-26, 91 L. Ed. 2d 265, 274-76, 106 S. Ct. 2548, 2553-54; Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958, 961.

II. Whether The Jones Affidavit Created

A Genuine Issue Of Material Fact

The appellate court in Zimmer also refused to permit an inference of exposure to defendants’ products and stated as follows:

“[Sjummary judgment is appropriate where the plaintiff has failed to present evidence of exposure to a particular defendant’s product. If such a case were sent to a jury, the verdict would necessarily be based upon mere speculation, guess or conjecture.” Zimmer, 192 Ill. App. 3d at 1092, 549 N.E.2d at 884.

We assume the Jones affidavit was filed for the purpose of establishing that Robert was exposed to the products of particular defendants. If it was filed only to establish that he worked with asbestos in the construction industry and that defendants furnished asbestos to the construction industry, then it should have been stricken. See Kozak, 213 Ill. App. 3d at 1067, 572 N.E.2d at 282.

Defendants contend the affidavit is insufficient under Supreme Court Rule 191 (134 Ill. 2d R. 191) and should have been stricken by the trial court. They further contend the rationale of Kozak requires that plaintiff have a specific factual basis to link defendants’ products to Robert’s injury.

Defendants’ position is that the Jones affidavit does not contain a factual basis sufficiently specific, in that affiant does not state (1) when and where he made his observations; (2) the products of the manufacturers he attempts to implicate; (3) how he knew those companies listed were the manufacturers of the products; (4) how he knew the products contained asbestos; and (5) the basis of his expertise to determine the products worked with did contain asbestos.

Rule 191(a) provides:

“Affidavits in support of and in opposition to a motion for summary judgment under section 2 — 1005 of the Code of Civil Procedure *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” (Emphasis added.) 134 Ill. 2d R. 191(a).

Affidavits offered in support of a motion for summary judgment must contain evidentiary facts, not conclusions, to which the affiant would be competent to testify at trial. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 598, 491 N.E.2d 803, 813.) Of the assertions made in the Jones affidavit, the one most susceptible to attack as being conclusory is Jones’ statement that he, Robert, and others worked with materials containing asbestos. Jones lays no foundation as to how he knew that he and Robert were working with materials containing asbestos. The other assertions contained in the affidavit, while lacking certain foundational requirements, do not appear to contain conclusions which would require that they be stricken under Rule 191. However, defendants claim these facts are required by the rationale underlying Kozak.

In deciding the sufficiency of the Jones affidavit, we consider the affidavit, the allegations of plaintiff’s complaint, and our decision in Kozak. The following allegations of plaintiff’s complaint applied to all the defendants now before our court:

“22. Hereafter, Defendant refers to each of the entities named in paragraphs 2 through 19 of this count.
23. Defendant manufactured and sold pipe covering containing asbestos, block insulation containing asbestos, asbestos packing, cloth containing asbestos, and asbestos cement for use in the construction industry.
24. Defendant’s products gave off asbestos dust when used in the construction industry.
25. Robert Webber was exposed to asbestos dust given off by Defendant’s products during his employment as a boilermaker.
26. Asbestosis and cancer are caused by exposure to asbestos.
27. Robert Webber contracted asbestosis as a result of being exposed to asbestos dust from Defendant’s products.
28. Robert Webber is at increased risk of cancer as a result of being exposed to asbestos dust from Defendant’s products.
29. The asbestosis which Robert Webber has contracted is one indivisible injury and disease.
30. The asbestosis which Robert Webber has contracted resulted from the total and cumulative effect of all the asbestos to which he was exposed.”

The Jones affidavit did not provide specific places of employment where Robert was exposed to asbestos. The affidavit did not list specific sites where Robert and Jones were both employed. The affidavit did not provide defendants with any information regarding location of where their products were allegedly used.

In Kozak, we were considering the sufficiency of the pleadings. While we are now considering summary judgment, the same policy issues are involved. We stated:

“The present pleadings are more in the nature of notice pleadings, and they are examples of why we should not adopt such pleadings. Assume a defendant supplied an asbestos product to the construction industry of Illinois. How can that defendant ascertain whether its product came into contact with one or more of the plaintiffs? Evidently plaintiff does not have that knowledge or it could have been pleaded. Basically, what defendant is being requested to do is to check every sale made in Illinois, then trace the chain of use and determine from the final user’s records (if any records still exist) where plaintiff or plaintiff’s decedent worked with the product.
The social issue, that of compensating those injured by asbestos, does not justify this massive, if not impossible, task being placed on defendants.” Kozak, 213 Ill. App. 3d at 1067, 572 N.E.2d at 282-83.

In determining this case, whether summary judgment should be entered necessarily involves the allocation of the burden of proof. In most cases, the party who has the burden of pleading a fact will have the burden of producing evidence and persuading the jury of existence of the facts as well. (E. Cleary, McCormick on Evidence §337, at 948 (3d ed. 1984); Haas v. Cohen (1973), 10 Ill. App. 3d 896, 899, 295 N.E.2d 28, 31; 18 Ill. L. & Prac. Evidence §21, at 62 (Supp. 1992).) We recognize that there are occasions where departures from normal treatment of the burden of producing evidence exist. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §301.5, at 75-76 (5th ed. 1990).

Plaintiff would have us (because of the social issues which result from actions of manufacturers who, without warning, place a deadly material in the course of commerce) place the burden on those manufacturers of defending without knowing where, when, and if plaintiff was injured by their specific asbestos product. This we will not do.

In the normal asbestos case, plaintiff would best be able to describe where he or she was exposed to the asbestos danger. Knowing where the exposure took place would possibly provide plaintiff with the ability to discover the manufacturer of the offending product. Here, plaintiff’s counsel is presented with difficulty because of Robert’s mental impairment.

We hold that the facts in this case do not present an occasion where there should be a departure from the rule placing the burden of pleading on plaintiffs. Because the summary judgment proceedings indicate plaintiff will not be able to carry the necessary burden of proof, the entry of summary judgment was required.

Affirmed.

GREEN, P.J., and COOK, J., concur.


author: JUSTICE GORDON

text:
    AH SING HAIST, Special Adm’r of the Estate of Yen Yen Wang, Deceased, Plaintiff-Appellant and Cross-Appellee, v. WEI WU, Defendant-Appellee and Cross-Appellant.
    First District (5th Division)
    No. 1—90—0716
    Opinion filed September 4, 1992.

      Sorkin & Nusbaum, of Chicago (Carl Nusbaum, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (R. Dennis Rasor, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court.

This action was brought under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2), to recover damages for the death of Yen Yen Wang allegedly caused by the negligence of the defendant Dr. Wei Wu in his treatment of the decedent. The jury returned a verdict in favor of the plaintiff and against the defendant, but awarded zero damages. Both parties have appealed. For the reasons set forth below, we affirm.

Facts

In April of 1982, the decedent Yen Yen Wang came to the United States from her native Taiwan. About a month later, she was joined by her husband, Chung Gie Wang. Neither Yen Yen nor Chung Gie spoke English. They lived for a time in Rome, Georgia, and in October 1982 moved to Wheeling, Illinois.

Chung Gie was employed at a restaurant in Wheeling owned by Eugene and Sue Wang (no family relation). Chung Gie and Yen Yen resided in a rental apartment in Wheeling which was within 10 minutes’ walking distance from the restaurant. At the time of the occurrence at issue, their telephone had not yet been installed.

In October 1982, the decedent suspected she was pregnant. When pain and bleeding developed, she decided to seek medical help. On Tuesday, November 2, Polly Tung, who was a waitress at the restaurant where Chung Gie was employed, drove Yen Yen to the Chinatown office of the defendant, Dr. Wu, an obstetrician and gynecologist. Dr. Wu maintained another office in Woodridge, and was in the Chinatown office on Tuesday and Saturday from 3 to 6 p.m.

Dr. Wu’s examination of the decedent, along with her history and symptoms, indicated either an ectopic pregnancy or a miscarriage. An ectopic, or tubal, pregnancy is a life-threatening condition since the fallopian tube can rupture at any time, causing the patient to hemorrhage. It is undisputed that Dr. Wu gave the decedent a prescription to have an ultrasound test, which was performed on Thursday, November 4, at St. Francis Hospital in Evanston. That same day, November 4, Dr. Robert Greenstein, a radiologist at St. Francis, called Dr. Wu with the ultrasound test results. The test indicated a strong possibility of an ectopic pregnancy. There is no dispute that these results were never communicated to Yen Yen or Chung Gie Wang. Neither of the doctors called them, nor did the Wangs attempt to learn the results by contacting the doctors.

On Saturday, November 6, Chung Gie received a call at work and was told that his wife had collapsed at a neighbor’s apartment. Yen Yen was taken to Holy Family Hospital, where surgery was performed, but she died at 11 a.m. on Sunday, November 7, 1982.

Plaintiff brought a single-count action against Dr. Wu, alleging that defendant was negligent in failing “to follow through on the continuance of care in a more reasonable time by being too non-specific in his instructions and impressing on her the urgency of the situation.” Defendant was also allegedly negligent in failing “to obtain and retain adequate information” for purposes of contacting her and failing “to promptly communicate” the fact that the ultrasound test confirmed his diagnosis of ectopic pregnancy or “to adopt emergency measures for purposes of contacting [the decedent] knowing that she had a potentially serious condition.” Plaintiff’s complaint further alleged that as a result of Dr. Wu’s negligence, the decedent sustained a ruptured ectopic pregnancy which caused her death. The decedent’s husband, Chung Gie Wang, is her sole next of kin.

, Defendant denied the allegations of the complaint, and as an affirmative defense, alleged that the decedent was contributorily negligent in failing to seek medical care for herself on November 5 and 6. Defendant also alleged that the decedent’s husband was negligent in failing to seek medical care for his wife on November 6.

A jury trial was held in September 1989. Plaintiff’s first witness was the defendant, Dr. Wu, called as an adverse witness. He was questioned about his office records regarding his treatment of the decedent, Yen Yen Wang. There was an address but no phone number on the decedent’s record. The defendant testified that it was “impossible” that she had given him her phone number and he had failed to write it down. When asked “is it conceivable that she thought you had her phone number?” the defendant replied “That’s a fact, she didn’t have a phone at home.” The doctor also testified “before she left, she knew she didn’t give me the number.” He also stated that the decedent declined to give him the number of the restaurant where her husband worked, and he did not ask her friend for a number. He said that the only way he could have had contact with her would have been by mail or by her calling him, which he maintained she promised to do.

Dr. Wu was also asked about his telephone conversation with Dr. Greenstein on November 4. Dr. Wu was at his Woodridge office when he took the call, and the decedent’s records were at the Chinatown office. Dr. Wu, however, remembered that he had no phone number for the decedent, and accordingly asked Dr. Greenstein if he had the decedent’s number, to which he responded that he did not. As a result, Dr. Wu waited for the decedent to call.

Dr. Wu testified that, on Saturday, November 6, he received a telephone call from Holy Family Hospital at about 7 p.m. as he was on the way home from his Chinatown office. The hospital informed him that the decedent was in surgery at the hospital. He drove to the hospital, arriving at 8:30, and gave to decedent’s husband a letter written in Chinese. Dr. Wu testified that he wrote the letter on November 5. He admitted, however, that in answers to interrogatories he stated that he was in the process of writing the letter on November 6 when he received a call from Holy Family Hospital informing him that Yen Yen was in surgery there.

Prior to the cross-examination of Dr. Wu by his own counsel, a sidebar was held. Defense counsel stated that he intended to ask the witness about his conversation on November 2 with the decedent in-jluding his unsuccessful attempt to obtain a phone number from her, questions which would ordinarily be barred by the Dead Man’s Act. Ill. Rev. Stat. 1989, ch. 110, par. 8 — 201.) Defense counsel argued ;hat plaintiff had opened the door to such questions by asking whether it was “conceivable” that Yen Yen thought the doctor had íer phone number so as permit questions to allow defendant to explain why he did not have the decedent’s phone number. The court, >ver plaintiff’s objection, ruled that the explanation may be elicited.

On cross-examination by his own counsel, Dr. Wu explained that n 1982, his Chinatown practice was primarily a “storefront” walk-in iractice where patients would come in without an appointment. His Chinese-speaking receptionist would get the patient’s name, address, iirthday and telephone number, and would type that information on ;he patient’s record.

Dr. Wu stated that based on her history and his physical examina-ion, he believed decedent may have had a miscarriage, an incomplete ibortion, or an ectopic pregnancy. The first step was to rule out ec-;opic pregnancy. To do that, he wanted an ultrasound test performed is soon as possible.

Over plaintiff’s objection, defendant was permitted to testify that íe explained to the decedent that it was possible she had an ectopic pregnancy or had suffered a miscarriage. He informed her that if it vas an ectopic pregnancy, surgery would be required to remove the rnibryo. If it was a miscarriage, a D & C could be required.

The doctor told her that he wanted an ultrasound test performed is soon as possible, preferably at Columbus Hospital or La Grange Hospital, where Dr. Wu was a staff member. Her response was that loth hospitals were at some distance from her apartment, and since she did not have a car, she would have to make arrangements for someone to drive her. Dr. Wu testified that although he tried to obtain lecedent’s authorization to make arrangements for the ultrasound ;est before she left his office, she refused, stating that she could not nake a decision without first discussing it with her husband and that ;hey would notify Dr. Wu after they had decided. Dr. Wu suggested ;hat she call her husband right then, but she explained that her hus-iand worked as a cook and was hard to reach and she did not want to nake a quick decision over the phone.

During his conversation with the decedent, Dr. Wu learned that she did not have a home phone. He asked her for her husband’s work lumber, which she refused to divulge, saying she would call him (Dr. iYu). She left his office with a prescription form for an ultrasound test. Dr. Wu also gave her his business card with both the Woodridge office number and the number of his 24-hour answering service.

Over plaintiff’s objection, Dr. Wu was further permitted to testify that he gave her the following advice:

“I tell her very simple, the tubal pregnancy because that the bleeding inside, that will cause pain, miscarriaging. That bleeding you can see for outside there are bleed or hemorrhage.
In both of situation, they might — you might die of the bleed-j ing, either inside or outside. So very simple, before you have ultrasound done, in case you have abdominal pain, bleeding going or bleeding getting heavier to hemorrhaging, go to the emergency room right away. Don’t wait for the ultrasound.”

His office record regarding the advice he had given to Yen Yen contained only the notation “to hospital emergency room if the bleeding increase or pain worse.”

At this point in the trial, plaintiff moved for a mistrial based on what he urged were cumulative and ongoing violations of the Dead Man’s Act. He denied that he had opened the door to testimony regarding the content of any conversation between the decedent and Dr. Wu by asking any questions about the doctor’s conversations with the deceased. Defendant’s response was that plaintiff had asked many questions designed to elicit what happened during the encounter between Dr. Wu and the decedent, specifically the fact that Dr. Wu did not get a telephone number from her, implying that he never asked for one or that she gave him one which he failed to write down.

In addition, defendant noted that in his opening statement plaintiff had argued that the defendant should have impressed the urgency of the situation on the decedent and should have made her call her husband from the doctor’s office. Plaintiff read from the complaint the allegation that the defendant was negligent in failing to impress the urgency of the situation on the decedent. Also, plaintiff’s expert would testify that these failures were a deviation from the standard of care. As a result, defendant urged that he should be allowed to give his explanation as to what actually happened in his office on November 2. Plaintiff’s motion for a mistrial was denied.

When cross-examination resumed, Dr. Wu testified that he expected her to call him and let him know when and where she was going to have the ultrasound test performed to enable him to contact the hospital which she chose to obtain the results. He did not hear from the decedent on November 3 or 4, but did get a message at his Woodridge office from Dr. Greenstein of St. Francis Hospital on the afternoon of the 4th, who informed the defendant that the ultrasound test confirmed his diagnosis of ectopic pregnancy. Since neither Dr. Wu nor Dr. Greenstein had a phone number at which the decedent could be reached, Dr. Wu assumed she would call him or take his advice to seek emergency help if a problem occurred. He also testified that he was not certain that she was still his patient, since she might have found another doctor closer to home.

When he did not hear from the decedent on Friday the 5th, he was concerned. He wrote a letter to her in Chinese, which said “If you have seen any doctor in your neighborhood, please contact me and about a result ultrasound. And you should go to see the doctor.” He did not mail the letter that evening since he did not have her address at home.

On Saturday, the 6th, when he arrived at his Chinatown office, he noted on the decedent’s record the phone call he had received on the 4th from Dr. Greenstein. He wrote “Call from hospital. Ultrasound report, it’s right acystic mass, possible ectopic pregnancy. No phone. Waiting for patient to call.” He also made a notation for November 6: “no call, no show. Will send a letter to her.”

On the way from his Chinatown office to his home in Darien, Dr. Wu’s beeper was activated. When he got home, he returned the call from Holy Family Hospital and learned that Yen Yen was there and drove to the hospital.

Plaintiff’s next witness was Dr. Robert Greenstein, a radiologist at St. Francis Hospital. He testified that the radiology department logbook showed that the decedent had an appointment for 2:30 p.m. on Thursday, November 4, and indicated the problem to be “fetus bleeding.” The logbook also had a phone number, which, it was later revealed, was that of the decedent’s friend Sue Wang, who had called to make the appointment.

The requisition form, which the patient receives from central registration and presents to the radiology technologist, indicated that the ultrasound test was performed at 1:09 on November 4. Dr. Greenstein was at lunch at that time, and when he returned the decedent had left. His analysis of the ultrasound results indicated a likely ectopic pregnancy.

Dr. Greenstein testified that he telephoned Dr. Wu and advised him that the ultrasound indicated a high possibility of an ectopic pregnancy. Dr. Wu responded that he would contact the patient and asked if Dr. Greenstein could provide him with her phone number. Dr. Greenstein answered that her telephone number was not on the requisition form which he had before him. Dr. Greenstein further testified that the defendant had not previously advised him that he did not have a telephone number for the decedent.

Chung Gie Wang, the decedent’s husband, was the next witness, testifying through an interpreter. After his wife saw the defendant on November 2, Chung Gie understood that she was to have “an x-ray” taken. He made arrangements for Sue Wang, wife of Eugene Wang, who owned the restaurant, to accompany his wife Yen Yen to have the “x-ray” taken on November 4. Chung Gie said that it was their intention to find a doctor closer to home after they knew the results of the ultrasound test.

The decedent’s husband further testified that after the test, he and his wife waited for the doctor to call with the results. He testified that he told the people at work to please let him know if there was a phone call from a doctor. There was no call on November 5, and when he returned home shortly after midnight, his wife was asleep.

The morning of Saturday, November 6, he saw a big chunk of blood in the lavatory, which he thought might be a miscarriage. His wife was not feeling well when he went to work Saturday morning. His plan was to come home when he got his break about 3 that afternoon, bring home groceries which his wife had asked him to get, and pick up Dr. Wu’s number and have a friend try to call the doctor. Chung Gie knew that Dr. Wu’s hours were 3 to 6 on Saturday.

Before he went home, Chung Gie received a call at the restaurant that his wife had fainted in a neighbor’s apartment. Eugene Wang drove him home, and the decedent, Yen Yen Wang, was taken by ambulance to Holy Family Hospital. Dr. Wu arrived at the hospital and hand delivered the letter he had written. Emergency surgery was performed, but she died the next morning.

On cross-examination Chung Gie testified that his wife was a capable woman with common sense. He said that he knew on Thursday that his wife was still bleeding, and that when he went to work on Friday, her health was “not too good.” On Friday night she told him she was still in pain, and on Saturday he knew that she had lost a lot of blood. In spite of this knowledge, he did not take Dr. Wu’s business card to work with him on Saturday morning. He did not attempt to call a doctor himself, nor did he ask anyone to help him make a call.

Shu (Sue) Ying Wang, Eugene’s wife, testified that she made the appointment for the decedent at St. Francis Hospital and left her phone number with the hospital. Shu Wang understood that the doctor would contact them with the results of the test.

Shu Wang stopped by to see the decedent on Friday, November 5, at about 5 p.m., at which time the decedent was “very sad” and in lain. She told Shu Wang that she had lost a lot of blood the night before.

On cross-examination, Shu Wang said that the decedent told her it that time that she thought she had suffered a miscarriage and lost ;he baby. The decedent did not ask Shu Wang to call the doctor or to sake her to an emergency room.

Plaintiff’s final witness was Dr. George Pepper, who testifed as to she required standard of care. According to Dr. Pepper, when an obstetrician/ gynecologist is faced with a patient with the decedent’s his-sory and symptoms, the doctor should first consider an ectopic preg-íaney, and the standard of care requires that this patient not be let iut of immediate contact until that diagnosis is proven and treated or •uled out. The doctor should see to it that the patient has an ultrasound test performed immediately, and that the patient is kept at the ’acility where the test is performed until the doctor receives the •esults and communicates them to his patient. If the test confirms the ictopic pregnancy, the patient should be admitted to the hospital the same day, and emergency surgery performed that day or the next day it the latest. If the woman insists on talking with her husband, the :all should be placed from the doctor’s office.

It was Dr. Pepper’s opinion that Dr. Wu failed to conform to the standard of care of a reasonably well-qualified obstetrician/gynecolo?ist. He should not have let the decedent out of his office without laving definite plans for her to have an ultrasound test performed ;hat day at a specific location. He should also have called her husband md impressed upon him the urgency of the situation, and should have gotten the number of the restaurant where the decedent’s husband vorked, if not from the decedent then from the friend who had driven ler to defendant’s office.

In Dr. Pepper’s opinion, Dr. Wu also failed to meet the standard if care by failing to follow through to find out when and where she vas going to have the ultrasound test performed. Once Dr. Wu earned the results of the test, he should have used any means possi-ile to reach the decedent, either by going himself to her address, or iy using a messenger service or sending a courier to deliver a letter. 3r. Pepper also suggested that Dr. Wu could have called the local po-ice.

Dr. Pepper also testified that there was a causal connection be-ween the negligence of Dr. Wu and the decedent’s death. In his opin-on, even with all of the delay, the decedent’s life could have been saved had she gotten help even if only six hours sooner.

On cross-examination, Dr. Pepper conceded that, if Dr. Wu advised the decedent on Tuesday, November 2, that in the event that her pain increased or that bleeding occurred that she should go to the emergency room of the nearest hospital, it would appear from the facts that she did not follow that advice. Prior to her collapse on Saturday afternoon, she must have been in severe pain and should not have ignored that pain.

Following Dr. Pepper’s testimony, the plaintiff rested.

Defendant called as his first witness his expert, Dr. John Pickens. He explained that part of his practice is a “storefront practice” such as that of Dr. Wu in Chinatown. In such a practice patients are more likely to come in when there is an urgent problem, but may not continue care with that facility or physician, choosing instead to utilize some other facility or physician more conveniently located.

Dr. Pickens also testified that he was familiar with “Chinese culture and attitudes,” having treated Chinese women regularly for the past 19 years. Regarding the relationship between Chinese women and their husbands and its impact upon a physician’s practice, he stated:

“With the overseas born couple, the wife depends tremendously upon the husband for decision making, and in my experience, in suggesting various treatments or tests that need to be done.
I can propose the test or the treatment, I can support it with the necessary logic behind why they need to be done, but the patient will invariably have to check with her husband to get approval to proceed with whatever was suggested.”

In Dr. Picken’s opinion, it was not a deviation from the requisite standard of care for Dr. Wu to fail to obtain the decedent’s acquiescence to an ultrasound test before she left his office on November 2. This opinion was based in part on cultural customs which required her to discuss any proposed treatment with her husband and to get his agreement. Dr. Wu did all he could do.

Dr. Pickens also testified that the standard of care did not require Dr. Wu to take extraordinary measures such as calling the police or sending a telegram or messenger to reach the decedent after he learned the results of the ultrasound test. The decedent knew that if her situation worsened, she was to go to an emergency room. In addition, it was possible that she had found another physician more accessible to her from her home. Dr. Wu understood that she would call him if she chose to continue under his care.

It was also Dr. Pickens’ opinion that, based upon the extent of the decedent’s pain and bleeding from Thursday night through Saturday morning, she had failed to exercise ordinary care for her own health and well-being by failing to seek medical care. Although Dr. Wu had told her to seek emergency care if her condition worsened, she failed to follow his instructions. Even if he had not given her that advice, common sense would dictate that one who is losing more blood and experiencing increasing pain would seek medical help. In addition, in Dr. Pickens’ opinion the decedent’s husband, Chung Gie, knowing of lis wife’s condition on Saturday morning when he left for work, failed to exercise ordinary care in not seeking help for her.

Sho Yuan testified that in 1982 she worked as a secretary and receptionist in Dr. Wu’s Chinatown office. One of her responsibilities was to obtain information from new patients who came to the office. She would give them a piece of paper and ask them to write their name, address, birthday and phone number. If the patient did not write down a phone number, she would orally ask for it. If the patient denied having a phone, she would ask for an alternate number where the patient might be reached. If the patient said there was no other number, no further questions were asked. Sho Yuan did not specifically remember the decedent Yen Yen Wang.

The defendant also testified, this time on his own behalf, as to his lackground and training in obstetrics and gynecology. Following his testimony, the defense rested.

Plaintiff’s motion for a directed verdict as to the alleged contributory negligence of Chung Gie Wang was denied. The court also rejected plaintiff’s arguments that the alleged negligence of the decedent’s husband should be considered under a comparative standard rather than as a complete bar to any recovery under a contributory standard.

By agreement, the matter was submitted to the jury under instructions which advised them if they found that both the defendant and the decedent’s husband were negligent they should return a verdict in favor of the plaintiff and against the defendant but award zero damages. This is the verdict they returned. Post-trial motions were filed by both sides and were denied. Both parties have appealed.

Opinion

Plaintiff raises three issues on appeal: (1) whether the doctrine of comparative negligence is applicable to beneficiaries under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2); (2) whether the trial court erred in failing to grant plaintiff’s motion for a directed verdict on the issue of the husband’s contributory negligence; and (3) whether the trial court erred in allowing the defendant to testify to the content of the conversation he had with the decedent and in failing to grant the plaintiff’s motion for a mistrial. Defendant, in his cross-appeal, raises a single issue, namely, whether he was entitled to a judgment n.o.v. where the evidence failed to establish that the decedent would have done anything different had the defendant contacted her with the results of the ultrasound, but did establish that had she followed his instructions, her death could have been prevented. We shall address the issues in the above order.

Plaintiff’s first issue involves the impact of contributory negligence under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2), which provides, in part:

“In any such action to recover damages where the wrongful act, neglect or default causing the death occurred on or after July 14, 1955, it shall not be a defense that the death was caused in whole or in part by the contributory negligence of one or more of the beneficiaries on behalf of whom the action is brought, but the amount of damages given shall not include any compensation with reference to the pecuniary injuries resulting from such death, to such contributorily negligent person or persons, and such contributorily negligent person or persons shall not share in any amount recovered in such action.” (Ill. Rev. Stat. 1981, ch. 70, par. 2.)

It is plaintiff’s position that the negligence of a beneficiary should not bar his recovery entirely, but rather should merely reduce his recovery according to comparative negligence principles. To achieve this result, plaintiff urges that we look to the legislative intent in enacting the above-quoted provision in 1955.

Prior to 1955, the contributory negligence of one beneficiary would bar recovery by all beneficiaries. (See Hazel v. Hoopeston-Danville Motor Bus Co. (1923), 310 Ill. 38, 49, 141 N.E. 392 (“the contributory negligence of one beneficiary who may be entitled to share in the amount recovered is a defense to the action”).) This rule was based upon the theory that the judgment in a wrongful death action was a single indivisible judgment, and as a result, the negligence of one beneficiary was a complete defense to a wrongful death action. (Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 613, 131 N.E.2d 525, discussing Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38, 141 N.E. 392.) Plaintiff argues that the 1955 provision was aimed at this unduly harsh common law rule and was intended to grant relief to innocent beneficiaries who had previously been barred from any recovery by a co-beneficiary’s negligence. According to plaintiff, the purpose was not to punish the negligent beneficiary, but rather to benefit non-negligent co-beneficiaries by putting them in the same position as common law plaintiffs whose claims would not be barred by a coplaintiff’s contributory negligence. Plaintiff argues that the legislature in speaking of contributory negligence was simply applying the common law principles which were then current to this statutory cause of action. As a result, plaintiff concludes that since the common law of contributory negligence was replaced in Illinois by the doctrine of comparative negligence pursuant to Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, applying comparative negligence in wrongful death cases to merely reduce recovery by a negligent beneficiary will give effect to the legislative intent in enacting the foregoing 1955 amendment to the wrongful death act and will place wrongful death beneficiaries on an equal footing with common law plaintiffs.

We agree with the plaintiff that, when dealing with a statute, our function is to give effect to the intent of the legislature. (Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533, 563 N.E.2d 410.) In ascertaining that intent, the rules of statutory construction require us to look first to the language of the statute as the best indication of legislative intent. (Henry v. St. John’s Hospital, 138 Ill. 2d 533, 563 N.E.2d 410.) Where the language is plain and unambiguous, it is unnecessary “to search for any subtle or not readily apparent intention of the legislature.” (Kozak v. Retirement Board of the Fireman’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 216, 447 N.E.2d 394.) If the statute’s language is unambiguous, it must be enforced as written. Palladini v. City of East Peoria (1985), 134 Ill. App. 3d 345, 347, 480 N.E.2d 530.

The above-quoted paragraph of the Wrongful Death Act clearly and unambiguously states that a contributorily negligent beneficiary shall not recover for the death which he caused in whole or in part. Even were we to speculatively agree with plaintiff’s argument regarding the legislature’s motive in enacting the statute, it is irrelevant. (Henry v. St. John’s Hospital, 138 Ill. 2d at 542.) Our only function is to enforce the law as enacted, and we may not engraft new or different provisions onto the statute. In Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 98, 476 N.E.2d 1378, the court found that superimposing comparative negligence onto section 2 of the Wrongful Death Act “would plainly be a forbidden judicial amendment to the statute.” It would be incumbent upon the legislature itself to revise the Wrongful Death Act to make it more compatible with the emergent doctrine of comparative negligence. As a result, we have no choice but to enforce the statute as enacted and hold that the trial court was correct in refusing to apply comparative rather than contributory negligence principles. See Justice Ryan’s dissent in Alvis v. Ribar, 85 Ill. 2d at 38 (“Today’s decision, of course, can have no effect on those legislative enactments which have incorporated contributory negligence”).

We also must reject plaintiff’s contention that the dissimilarity of treatment accorded to wrongful death beneficiaries compared to common law plaintiffs violates the equal protection clause of the Illinois Constitution. After the 1955 amendment to the Wrongful Death Act, wrongful death beneficiaries were treated in the same manner as common law plaintiffs: Contributory negligence barred recovery by both. When the judiciary adopted comparative negligence in 1981 in Alvis v. Ribar, it bettered the position of common law plaintiffs by allowing them to recover notwithstanding their own negligence, while negligent wrongful death beneficiaries remained barred from any recovery. It is this difference in treatment which plaintiff claims is in violation of equal protection. We do not agree.

The Wrongful Death Act, being a statutory cause of action unknown at common law, necessarily created a distinct class of persons namely, beneficiaries entitled to recover under its provisions. (Hall v. Gillins (1958), 13 Ill. 2d 26, 147 N.E.2d 352; Bruce v. Halterman Flynn (1987), 162 Ill. App. 3d 248, 515 N.E.2d 410.) “It is well estab lished that ‘[t]he Equal Protection Clause does not mean that a State may not draw lines that treat one class of individuals or entities dif ferently from the others. The test is whether the difference in treat ment is an invidious discrimination.’ [Citation.] The legislative classifi cation is presumed to be valid and will not be set aside if any state o: facts may reasonably be conceived to justify it.” (Bruce v. Halterman Flynn, 162 Ill. App. 3d at 252, quoting Buzz Barton & Associates Inc. v. Giannone (1985), 108 Ill. 2d 373, 381, 483 N.E.2d 1271.) Th< legislature clearly could choose to limit recovery under the statute t( nonnegligent beneficiaries. There is no discrimination in such a dis tinction.

The fact that common law plaintiffs are treated differently fron wrongful death beneficiaries has repeatedly withstood equal protec tion challenges. (See In re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979 (7th Cir. 1981), 644 F.2d 594, 608-10 (disallowance o punitive damages in wrongful death actions not a violation of equa protection); Bruce v. Halterman-Flynn, 162 Ill. App 3d at 252 (cour finds no equal protection violation in fact that wrongful death coun terclaim must be commenced within two years as provided in the stat ute, while common law personal injury counterclaim not so limited stating “the legislature created the class of persons protected by the Wrongful Death Act when no such cause of action previously existed”); Hall v. Gillins, 13 Ill. 2d 26, 147 N.E.2d 352 (limitation on recovery in wrongful death action not unconstitutional).) We agree with the statement made by the court in Hall v. Gillins:

“In our opinion the constitutional question is not formidable when it is considered in the context of the situation that existed when the statute was originally enacted. At that time no action whatsoever was permitted for a wrongful death. The legislature took away no right when it enacted the statute. It created both the right and the remedy.” 13 Ill. 2d at 29.

Moreover, the disparate treatment may be justified on the basis of the classes of persons involved. One whose negligence contributes to his own injury or death is not a tortfeasor. (See Laue v. Leifheit (1983), 120 Ill. App. 3d 937, 458 N.E.2d 622 (lack of due care for one’s own safety is not tortious).) Such an individual, whether a plaintiff in a common law action or the decedent in a wrongful death case, is treated similarly in both cases. In both cases comparative negligence principles will be applied to reduce any recovery in proportion to that person’s negligence. (Compare Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886, with Ralston v. Plogger, 132 Ill. App. 3d 90, 476 N.E.2d 1378 (in wrongful death action, negligence of decedent will reduce recovery to beneficiaries).) In contrast, a party such as the beneficiary to a wrongful death action who contributes to the death or injury of another is a tortfeasor and as such is not entitled to recover any benefit from his wrongdoing. (See Zawaski v. Frainey (1986), 149 Ill. App. 3d 1045, 501 N.E.2d 870.) On this basis alone, the disparate treatment may be justified.

It may further be noted that the bar against recovery by a contri-butorily negligent beneficiary was enacted prior to the court’s determination in Alvis v. Ribar. There was no disparity of treatment at the time of the 1955 enactment.

Plaintiff’s second contention is that the court erred in not granting a directed verdict on the issue of the contributory negligence of the decedent’s husband. Plaintiff argues that to totally bar recovery, contributory negligence must be substantial, citing Peterson v. Campbell (1982), 105 Ill. App. 3d 992, 434 N.E.2d 1169, and that the alleged negligence of the decedent’s husband in failing to get help for his wife on Saturday morning does not rise to that level. As a result, plaintiff urges that the question should not have gone to the jury but rather that the court should have directed a verdict in his favor. Under the facts of this case, we conclude that the trial court properly submitted the question of the husband’s negligence to the jury and that the evidence supports the jury’s verdict.

The issue of contributory negligence is ordinarily a question oi fact to be determined by the trier of fact. (Bothun v. Wallace (1978), 61 Ill. App. 3d 365, 377 N.E.2d 1054.) A directed verdict is appropriate only when all the evidence, viewed in the light most favorable tc the opponent, so overwhelmingly favors the movant that no contrarj verdict could ever stand. (Bothun v. Wallace, 61 Ill. App. 3d at 367 citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494 229 N.E.2d 504. See also Peterson v. Campbell, 105 Ill. App. 3d 992 434 N.E.2d 1169.) If reasonable persons might draw different conclu sions as to the facts or inferences to be drawn from the facts, a di rected verdict on the question of contributory negligence should no: be granted. Peterson v. Campbell, 105 Ill. App. 3d 992, 434 N.E.2d 1169.

Here, there was no dispute that the decedent’s husband dk not seek help for his wife before she collapsed in the neighbor’s apart ment on Saturday afternoon. Nor is there any dispute that he was aware that she was losing significant amounts of blood and was ii pain. Plaintiff’s own expert testified that, based upon the amount o: blood found in her abdomen during surgery, the pain had to have beei severe and increasing in intensity. On Saturday morning, the deceden had asked her husband to call the doctor that day. Certainly, unde: these facts, the trier of fact could conclude that a reasonable persoi would have sought medical help and that Chung Gie’s failure to do s< constituted contributory negligence.

In Biundo v. Christ Community Hospital (1982), 104 Ill. App. 3d 670, 432 N.E.2d 1293, the plaintiff alleged that the decedent was ne glected by the hospital staff and was driven by excessive pain to jum] or fall from his hospital window. The court held that, under the fact presented, the question of whether patient’s wife was contributoril; negligent in not contacting the doctor herself when patient was h pain was a question for jury. Here, too, the question of whether th< decedent’s husband was contributorily negligent in not seeking hel] for his wife was one for the jury. As a result, we see no error in tb court’s denial of plaintiff’s motion for a directed verdict.

The jury concluded that the decedent’s husband was contributoril; negligent as evidenced by the verdict they returned. We find that de termination to be supported by the record and we will not substituí our judgment for that of the jury. Gettemy v. Grgula (1975), 25 Ill. App. 3d 625, 628, 323 N.E.2d 628.

The case of Tozzi v. Testa (1981), 97 Illl. App. 3d 832, 423 N.E.2d 948, cited by plaintiff, is distinguishable. There the defendant was a professional arc welder who alleged that the plaintiffs were guilty of contributory negligence by their failure to serve as “fire watchers” vhile he was welding at their warehouse. The jury returned a verdict n favor of the defendant which was reversed on appeal. The appellate jourt found that there was no basis for the finding of contributory legligence by the plaintiffs, a finding based on the fact that the plaintiffs had asked the defendant about the risk of fire but were assured yy him that there was no risk. As a result, the court concluded that is a matter of law, the plaintiffs were guilty of no negligence. Here, there is no evidence that the decedent or her husband had any such assurances from the defendant. The decedent’s husband never spoke vith the defendant. The defendant testified that rather than giving the decedent any assurances, he told her that she was at risk of lying. If anything, the warnings of the defendant to the decedent if 3ommunicated by the decedent to her husband would have increased the husband’s awareness of the danger. Accordingly, we find Tozzi to :>e of little assistance to the plaintiff here.

Plaintiff’s third issue on appeal involves the Illinois Dead Man’s ?Vct, which provides:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under legal disability, 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 person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:
(a) If any person testifies on behalf of the representative to any conversation -with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, an adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.” (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201(a).)

Plaintiff contends that the court erred in allowing the defendant to testify to his conversations with the decedent. Specifically, plaintiff irges that it was error to allow the defendant to explain why there ivas no telephone number on the decedent’s office record, and also to testify regarding the advice he gave to her beyond what was written n his records. Plaintiff argues that at no time during his examination of the defendant as an adverse witness did he ask the defendant about any conversations he had with the decedent, but simply established the absence of a phone number in Dr. Wu’s records, Dr. Wu’s impressions of the decedent’s condition, and the fact that the doctor did nothing after learning of the ultrasound test results. Plaintiff contends that this questioning of the defendant did not involve the content of any conversations with the decedent, and as a result did not “open the door” to such testimony or waive the protections of the statute.

Defendant counters that the door was opened by plaintiff’s questions about whether it was “possible” or “conceivable” that the decedent thought that he had her phone number, questions which defendant contends could be answered only by relating part of his conversation with the decedent. In addition, defendant urges that the entire conversation between the defendant and the decedent was placed in issue when the plaintiff filed his complaint asserting that the defendant was negligent in failing to obtain information from her and in failing to impress on her the urgency of her condition.

As a general rule, the Dead Man’s Act prohibits testimony by a person whose interests are adverse to the deceased about matters which the decedent could have refuted. (Vazirzadeh v. Kaminski (1987), 157 Ill. App. 3d 638, 510 N.E.2d 1096.) However, subparagraph (a) provides that if the deceased’s representative waives the protection of the Act by introducing testimony otherwise prohibited, the opposing party is permitted to present testimony concerning the same conversation or event. The goal of the Act is fairness, and its purpose is to put the parties on equal footing. (Wasleff v. Dever (1990) , 194 Ill. App. 3d 147, 154, 550 N.E.2d 1132.) The purpose of the exception is to prevent the trier of fact from being presented with a one-sided picture of the conversation or event. (Groark v. Anderson (1991) , 222 Ill. App. 3d 880, 885, 584 N.E.2d 468.)

“The justice of this rule is too apparent to require discussion. 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 an erroneous impression left thereby.” Perkins v. Brown (1948), 400 Ill. 490, 497, 81 N.E.2d 207.

Here, on direct examination of the defendant as an adverse witness, plaintiff asked numerous questions regarding the lack of a elephone number in his office records. The questions clearly went be-rond merely establishing that there was no telephone number on the ecord. By asking the defendant if it was “conceivable” or “possible” hat the decedent thought the defendant had a number at which he rould call her, plaintiff was implying that she had given the doctor a lumber but he had not written it in his records. Defendant was entiled to explain why these inferences were incorrect. Thus, we hold hat the plaintiff waived the protection of the Act by the questions ,sked regarding the absence of the telephone number, and opened the oor to allow the defendant to explain what in his view had occurred nd why he did not have her phone number.

As to plaintiff’s contention that the defendant should not lave been allowed to testify to the advice he gave to the decedent beond what was written in the records, we likewise find no error. The negations against defendant all stem from the meeting and conversaion between the decedent and the defendant in the defendant’s office n November 2. Plaintiff alleged that the defendant’s failure to imiress on decedent the urgency of her situation was negligence. Plainiff also alleged negligence in defendant’s failure to obtain a phone umber from the decedent and his failure to contact her with the esults of the ultrasound test. To allow the plaintiff to make these alsgations and then to claim the Dead Man’s Act as a bar to defendant ti explaining what had happened would be palpably unjust and in diect contravention of the Act’s goal of fairness.

We believe the cases of Perkins v. Brown, Wasleff v. Dever and Zorn v. Zorn (1984), 126 Ill. App. 3d 258, 464 N.E.2d 879, are persuaive on this point. In Perkins, the defendant wished to explain his tesimony as an adverse witness by testifying to conversations which he lad with the decedent in the months prior to his death. In holding hat such testimony should be allowed, the court stated:

“Appellants having called Brown to testify and elicited from him the statement that he had received a deed for the property from the deceased and that he did not pay her for it or buy it from her, it was entirely proper to permit him to explain the entire transaction with the deceased, including the conversations had by her with him concerning the conveyance of the property, as such conversations were a part of the transaction inquired about by appellants.” (Perkins v. Brown, 400 Ill. at 497.)

n Wasleff, defendant was alleged to have withdrawn monies from de-edent’s bank account without authorization. The court held that the lead Man’s Act did not bar defendant’s testimony about conversations she had with the decedent in which he granted her withdrawal authority. “[B]ut for the exception set forth in the Dead Man’s Act, the defendants would not have been on equal ground in defending plaintiff’s claim of an unauthorized withdrawal.” (Wasleff v. Dever, 194 Ill. App. 3d at 154.) In Zorn, defendants were charged with exerting undue influence to obtain a deed from the decedent. The court held that it was error to prevent the defendant from testifying to conversations with the decedent to rebut those charges.

Here, plaintiff elicited testimony from the defendant regarding Yen Yen’s office visit, his diagnosis of a possible ectopic pregnancy or miscarriage, and the fact that his office records did not contain a phone number. Standing alone, this testimony could leave the jury with the impression that the defendant did not explain his possible diagnosis to the decedent or inform her of the potentially life-threatening nature of her condition. Based on the principles set forth in Perkins, Wasleff, and Zorn, we find no error in the admission of defendant’s testimony regarding his advice to Yen Yen.

Plaintiff argues, however, that a distinction should be made between an “event” and a “conversation,” and that since he introduced no testimony about conversations between the decedent and Dr. Wu, there was no waiver so as to allow defendant’s testimony regarding that conversation. It is true, as plaintiff points out, that this court made such a distinction in Vazirzadeh v. Kaminski, 157 Ill. App. 3d 638, 510 N.E.2d 1096. There we held that testimony by the decedent’s widow concerning a conversation she had with her deceased husband did not constitute a waiver to allow the defendant to testify to an entirely separate conversation he had with the decedent, nor did the decedent’s entire hospitalization constitute an “event” within the meaning of the statute so as to allow testimony regarding the later conversation. Here, however, we are dealing with a single “event,” the meeting between defendant and Yen Yen on November 2, and a single conversation between them at that time. As a result, we do nof find the distinction made in Vazirzadeh applicable so as to bar defendant’s testimony here.

We are not unmindful, however, of the comment by the majority in Zorn v. Zorn, which stated “[t]he matter must be handled on s case-by-case basis, each one dependent on its own facts, and, oi course, the basic principle of relevancy will act as a restraint upon unbridled application of the rule. We hold that on the facts of this case, it was error to exclude the evidence.” (Zorn v. Zorn, 126 Ill. App. 3c at 263-64.) We too are not advocating an unbridled application of the rule, but certainly the facts of this case well warrant this application.

Accordingly, we find no error in the trial court allowing defendant’s testimony regarding his conversations with the deceased in this case.

Finally, we address defendant’s claim in his cross-appeal that he was entitled to a directed verdict in his favor because the evidence failed to establish that his conduct caused the decedent’s death. The standard discussed above in regard to plaintiff’s argument for a directed verdict on the question of contributory negligence also applies here. A directed verdict should be granted only when all the evidence, viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504.) Our review of the record indicates that the court correctly denied defendant’s motion.

Although defendant argues that plaintiff presented no evidence that the decedent would have acted any differently had she known that the results of the ultrasound confirmed the ectopic pregnancy, the record indicates otherwise. Chung Gie testified that after they received the results of the test from Dr. Wu, it was their plan to find another doctor closer to home. According to the decedent’s husband, the course of conduct of his wife and himself depended upon what they would have heard from the defendant concerning the results of the ultrasound test. Thus it could be inferred that they would have acted differently had the defendant communicated the results to them. In addition, the defendant told the decedent that her pain and bleeding could be caused by either an ectopic pregnancy or a miscarriage. There was testimony by Sue Wang that the decedent thought she had suffered a miscarriage, a condition which was not of the same degree of urgency as an ectopic pregnancy. Had the defendant communicated that the ultrasound test indicated an ectopic pregnancy rather than a miscarriage, it is not unreasonable to infer that medical help might have been sought sooner. Thus, applying the Pedrick standard, we conclude that the trial court did not err in denying defendant’s motion for a directed verdict.

Defendant cites two “failure to inform” cases in which the courts held that the plaintiff had failed to establish that a reasonable person would have acted differently had the information been provided. (See Marshall v. University of Chicago Hospitals & Clinics (1987), 165 Ill. App. 3d 754, 520 N.E.2d 740; Green v. Hussey (1970), 127 Ill. App. 2d 174, 262 N.E.2d 156.) In Marshall, however, unlike the instant case, the court found that the only reasonable inference from the objective evidence was that a reasonable person in plaintiff’s position would have acted as plaintiff did. In Green, the court stated that the plain tiff had presented no evidence that the defendant’s failure to inforn had caused her injury. While we agree with the defendant that thi plaintiff must establish that a reasonable person would have acted dif ferently had she known that the ultrasound test confirmed the ectopi pregnancy, as discussed above, such evidence was presented here. Ai a result, we find these cases to be of little assistance to the defendan here.

Defendant also contends that he cannot be liable for the dece dent’s death since the evidence affirmatively established that the de cedent’s death was caused by her own failure to follow his instruc tions. In support, he cites Krauss v. Ballinger (1912), 171 Ill. App 534, Littlejohn v. Arbogast (1901), 95 Ill. App. 605, and Haering v. Spicer (1900), 92 Ill. App. 449, in which the courts held that a physi cian is not liable for his negligence when the patient fails to follow hi instructions. Those cases, however, were decided at a time when th negligence of the decedent was a total defense. Today, principles o comparative negligence are applicable to negligence by the decedent and a decedent’s negligence serves only to reduce any recovery by th beneficiaries. (Ralston v. Plogger, 132 Ill. App. 3d 90, 476 N.E.2d 1378. See also Newell v. Corres (1984), 125 Ill. App. 3d 1087, 44 N.E.2d 1085.) Thus, assuming that defendant is correct that the dece dent was negligent, defendant would not be entitled to a directed vei diet on that basis alone.

Accordingly, for all the above reasons, the judgment of the circuí court of Cook County is affirmed.

Affirmed.

McNULTY, P.J., and MURRAY, J., concur.