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Mcswain v. Chicago Transit Authority





APPEAL from the Circuit Court of Cook County; the Hon. SAUL A. EPTON, Judge, presiding.


Rehearing denied May 26, 1977.

This is an action by plaintiff, Dovia McSwain, for damages for personal injuries allegedly caused by the negligence of the defendant, Chicago Transit Authority (CTA), in the operation of one of its elevated trains on September 27, 1970. During the bench trial the defendant admitted liability and the trial court entered judgment in the amount of $150,000 for the plaintiff. The trial court found that plaintiff had multiple sclerosis and that there was a causal relationship between the multiple sclerosis and the accident of September 27, 1970. The CTA appeals, contending (1) that plaintiff has not established by a preponderance of the evidence that she has multiple sclerosis and (2) that plaintiff has not established by a preponderance of the evidence that there was a causal relationship between her injuries and the accident of September 27, 1970.

The legal propositions advanced by defendant are deceptively simple and unchallenged. Only two cases are cited; Reivitz v. Chicago Rapid Transit Co. (1927), 327 Ill. 207, 158 N.E. 380, for the proposition that the plaintiff has the burden of proving his case by a preponderance of the evidence, and Daly v. Bant (1970), 122 Ill. App.2d 233, 258 N.E.2d 382, for the proposition that plaintiff must establish by a preponderance of the evidence a causal connection between the alleged negligence and the injury. Defendant also quotes the Illinois Pattern Jury Instructions, Civil, No. 21.01, stating that the test is whether one having the burden of proof has proved that his position is "more probably true than not true." The propriety of the application of the law to the facts in evidence is the only issue. Because of the technical nature of the evidence and the significance of the chronology of events, the evidence is set forth in great detail.

Before beginning the lengthy statement of facts, however, it is necessary that some introductory information regarding the disease of multiple sclerosis be set forth. Dr. Klawans, a board certified neurologist, and Dr. Cascino, a board certified neurosurgeon, provide, in their testimony in this case, detailed descriptions of multiple sclerosis, its nature, causes and symptoms. We have attempted to summarize their testimony and synthesize it in the following synopsis, with the testimony of the other medical experts who testified in this case.

Multiple sclerosis is a classic disease of the myelin. Myelin is the coating on the cells of the nervous system which insulates, nourishes and conducts impulses along the axons of the nervous system. The cause of multiple sclerosis is unknown but experts hypothesize that it is caused by a virus which is present in the body of a susceptible person prior to age 15 and which is activated, precipitated or exacerbated upon some triggering event such as trauma (especially injury to the neck), fever, excessive fatigue, infections, emotional distress or other factor.

Multiple sclerosis is characterized initially by inflammation or swelling of the myelin around the nerve endings resulting, in the later stages of the disease, in scarring of the myelin, which is destroyed and broken down, creating "multiple" lesions in the nervous system. "Multiple" also applies to the fact that patients have multiple attacks of the disease. At one point the disease may affect the patient's gait (inflammation stage). They can recover slowly (remission) and be able to walk with less difficulty (scarring stage). The next episode may involve inflammation of another area of the central nervous system which may, for example, affect the vision, producing diplopia, then improved vision, and then almost normal, but weakened, vision which will eventually deteriorate as the lesions become more numerous or more severe and the myelin is destroyed creating more scarring. Ultimately the damage can be irreversible and permanent.

The following are some of the classical symptoms of multiple sclerosis: ocular disturbances; nystagumus (involuntary oscillation of the eyeballs); diplopia (double vision); diminished eyesight; difficulty with speech; difficulty with performing with the extremities; weakness with seizures of spasticity; weakness in arms or hands such as inability to grip; ataxia (difficulty in walking characterized by stumbling, wobbling, falling); increased or abnormal reflexes; hyperflexia indicated by Babinski or other abnormal signs; intention tremor; clonus (extreme weakness in the legs); atrophy; paresthesia (numbness or other abnormal spontaneous sensation such as burning or pricking); loss of abdominal reflexes; urinary incontinence; bladder difficulties; rectal functions interfered with.

Multiple sclerosis is extremely difficult to diagnose partly because an involvement of any of these areas may last from weeks to months, then the patient enters a period of remission during which the symptomology abates, and after which the same symptoms or other symptoms recur and may be exacerbated. Multiple sclerosis is a debilitating disease in which, typically, the possibility of further disability in the future is very high. Patients who have attacks tend to have more attacks. There is presently no known cure for multiple sclerosis.

Because of the length of the factual situation, a prefatory comment is necessary. For the sake of clarity, we have attempted to present the facts in a more or less chronological order, therefore the testimony of the plaintiff is interspersed between the testimony of the medical experts.

Plaintiff testified that in 1965, she had received a whiplash injury due to an automobile accident but returned to school (licensed practical nurse's training) the next day. She experienced no discomfort; she received no other treatment except an Ace bandage. She experienced no symptoms similar to her present symptoms.

In June 1970, three months before the accident which is the subject of the instant appeal, plaintiff was injured on her left side when the car which she was driving hit a pot hole and she was thrown into the door on the driver's side. She was treated by a doctor at a local medical center on just that one occasion. She recovered from all of the complaints that she sustained in that accident.

Prior to the CTA accident of September 27, 1970, from which this suit arises, plaintiff's health was very good and she had never experienced any of the symptoms complained of before that time. Prior to the CTA accident, plaintiff had been continuously employed as a licensed practical nurse. She earned approximately $4000 in 1969, and $5000 in 1970. Since breaking her wrist in 1971, she has been on public assistance.

In addition to the above testimony of plaintiff it was stipulated between the parties that at the time of trial, August, 1974, plaintiff was 41 years old and had a life expectancy of 36.4 years.

On September 27, 1970, about noon, an accident occurred at the Davis Street station when the elevated railway train in which plaintiff was a passenger was hit from the rear by another CTA train. The CTA, through one of its attorneys, admitted liability. Plaintiff, a licensed practical nurse, was riding backwards facing south and, at the time of impact, was thrown forward into the safety bar on the seat in front of her which struck her in the neck. She was immediately thrown backward again. Plaintiff testified that for a moment she could hardly breathe or talk but in a very short time it cleared up to the extent that she could speak in a whisper. Plaintiff was transported from the scene by an emergency vehicle which took her to St. Francis Hospital.

Upon arrival at the hospital plaintiff was taken to the emergency room where she spoke to an intern, Dr. Philip Cacioppo, a 1967 graduate of Loyola Medical School who served his residency in general surgery at St. Francis Hospital. She told Dr. Cacioppo that she had a lump in her throat; it was difficult to swallow; she had a gagging feeling; that in addition to the injury to her neck she had hit her chest and it felt very tight; that she was shaken up. Her medical history and Xrays were taken.

Dr. Cacioppo, when called by plaintiff, testified that he vaguely recalled the accident of September 27, 1970. He had treated a number of patients in the emergency room but had no independent recollection of plaintiff. The hospital records, which bear his name as resident, indicate that plaintiff was involved in an accident, had trauma or injury to the right front side of the neck from the mastoidal process (behind the ear) to the clavicle (below the shoulder). Although a severe blow to that region could impair speech, no loss of voice is recorded in the hospital record. Dr. Cacioppo said plaintiff suffered a soft tissue injury; he diagnosed muscular trauma with musculature strain. The Xrays showed loss of cervical lordosis, an objective finding which usually indicates that the patient is moving his or her head in response to pain. Dr. Cacioppo prescribed medication for pain. He saw plaintiff in the emergency room.

Plaintiff testified that she remained in the emergency room for about eight hours. She was released from the hospital and was taken home by a friend. When she arrived home she noticed that her neck hurt and that she was bruised across the front part of her body. She stayed home from work and rested for two or three days after the accident at which time she noticed that she became dizzy when she would bend down to do routine household chores. She took the medication for pain prescribed by Dr. Cacioppo and tried to take it easy but the soreness, bruises, and aching became more pronounced so she called Dr. Frank M. Wittelle whose name she obtained from the local telephone directory. She went to his office about four days after the accident.

Dr. Wittelle has been a physician in private practice for about 30 years. He has taught and held clinics at the University of Illinois College of Medicine for about 16 years. Dr. Wittelle, who was called by the plaintiff, testified that he saw plaintiff for the first time on October 2, 1970, five days after the accident. He saw her again October 6, 13 and 15. He recommended that she be admitted to Jackson Park Hospital where he saw her every day from October 16 to October 24. He saw her again October 29 and finally in November, 1970.

Dr. Wittelle testified that his records contained a history of plaintiff taken at the first office visit on October 2, 1970, which indicated that she had been involved in an elevated railway train accident in which she was thrown forward and hit her face, shoulder, and arm on the seat in front of her. Plaintiff complained to him of severe headache, difficulty in swallowing, extreme nervousness and worry over her recovery and her ability to work as a licensed practical nurse, and pain from contusions on her right wrist, right shoulder, neck, and right side of her face. She experienced extreme pain on turning her head or flexing or extending the head on the neck. This indicated to Dr. Wittelle that there was damage to the nerves coming out between the cervical vertebrae and that she had what is commonly called a severe whiplash injury plus contusions of the shoulder, right arm, neck, and face. Dr. Wittelle prescribed pain medication as well as physiotherapy and heat. At first this was done at home, but, when it became apparent that she was getting worse instead of better, he suggested admission to the hospital because he was afraid of permanent injury; because the swelling of the right arm and shoulder did not go down quickly; because he wanted the plaintiff where he could keep her under controlled conditions to determine whether the medication was helping; and because he wanted to determine how severe and what the outcome of the injuries would be. It was his opinion that the accident was the "stimulating factor to her condition."

Plaintiff was admitted to Jackson Park Hospital for nine days on October 16, 1970. Dr. Wittelle testified that much of the hospital record was in his own handwriting including the admitting statement which said that plaintiff was admitted for study and treatment with severe traumatic radiculitis (involvement of the nerves coming out between the cervical vertebrae and joining up with the nerves over the shoulder on her right side). Pain was severe and constant and was only partially controlled by medication. Plaintiff complained of weakness on her right side. Movement both active and passive of the head and neck produced severe pain. He stated that movement against resistance aggravated the pain; muscle spasticity was 4 plus (the top degree of severity or intensity of pain). Movement of her right arm was restricted and painful. Radiculitis has been known, in many cases where the original injury was severe, to be a permanent condition. In Dr. Wittelle's judgment within a reasonable degree of medical certainty, plaintiff's injury was permanent. Strain or sprain may be very severe without showing in Xrays. Although plaintiff's Xrays showed no observable pathology, Xrays do not reveal damage to soft tissue. While in Jackson Park Hospital, plaintiff was given physical therapy and hot packs which made her feel better.

Plaintiff testified that, after her discharge from the hospital in late October, she felt better; accordingly, she asked Dr. Wittelle when she could return to work. As she began moving about the house more she still experienced some weakness, pain, poor balance and lightheadedness. After she had been home two or three days she fell in her apartment. She noticed that when she fell she could not get up immediately. As she fell she noticed that "her right leg went out."

After being at home one week she put herself on call with the nursing registry as a licensed practical nurse for the afternoon shift because it is a lighter shift than the 7 to 3 shift she usually worked. She remained on this shift about three weeks, until November 15, 1970, when she had a second fall in her living room when her right leg went out again. She noticed that she was weak, could not get up right away and that her arm was broken. She called a friend and went to Woodlawn Hospital where they took Xrays. They wanted her to remain overnight but she preferred Wesley Memorial Hospital, so she took a cab to Wesley where an intern put a cast on her right arm.

Dr. Andrew D. Bunta is an orthopedic surgeon who graduated from Northwestern Medical School and was a first-year resident at Wesley Memorial Hospital on November 15, 1970, when plaintiff came to that hospital with a broken right wrist. Dr. Bunta, in testifying for the defendant said that he had no independent recollection of plaintiff and that the records taken in the ordinary and usual course of business did not refresh his recollection as to his examination of plaintiff. He testified only as to what is generally done in the emergency room. Part of his responsibility as a first-year resident was to take the new patient's history and examine the patient. Plaintiff's hospital record shows that she sustained a fractured right wrist as a result of a fall in her home. The history indicates that she said that she tripped on a rug in her home at 4:30 a.m. that day and fell forward onto her hand and wrist causing the injury. When he recorded plaintiff's history she had a long-arm cast on the right arm. Except for the broken wrist, the record noted no other abnormalities; no complaints, no prior significant medical history; no prior problems, hospitalizations or accidents.

Dr. Robert G. Thompson, the resident orthopedic surgeon at Wesley Memorial Hospital at that time, was called in to look at plaintiff's wrist. He testified for plaintiff that, although plaintiff's fracture was reduced under local anesthesia, subsequent Xrays showed further reduction was necessary, so plaintiff was admitted to the hospital November 15, 1970, and on November 16, under general anesthesia, the fracture was reduced satisfactorily and a transfixion pin was applied through the thumb. Plaintiff was discharged November 17. He saw her again on November 24, December 10, and December 22 when the pin and the long-arm cast were removed and a short-arm cast put on. On January 5, 1971, a half-cast was put on which could be removed daily for exercise and washing of the hand. On January 20, when motion, rotation and function were good and prognosis with respect to her wrist was good, Dr. Thompson discharged plaintiff as a patient.

Plaintiff testified that she did not see Dr. Wittelle while she was under care of Dr. Thompson for the fractured wrist, a period of about eight weeks. She stated that she did not review her history and complaints with Dr. Thompson, although she did tell Dr. Thompson that she could not wear the sling around her neck to support the long-arm cast because she could not take the pressure of the sling on her neck which was still damaged.

Plaintiff testified that she never returned to work after January of 1971. She stayed home because her neck was worse; she noticed pain in her right shoulder and arm; she noticed continued dizziness and that she stumbled a lot, which she had never done before; she also noticed weakness of her right side. She gave herself hot packs and took the prescribed medication. In June of 1971, nine months after the accident, she noticed a numbness on the right side of her face from the top of the head to the chin. She went to see an oral surgeon, Dr. Gantz, who referred plaintiff to Dr. Oscar J. Moore, Jr., whom she saw first on September 9, 1971. She complained to Dr. Moore of diplopia or double vision; that her neck hurt all the time; that her right arm and leg were weak; that she had radiating pain from her neck and shoulder on the right side; that she stumbled and fell a lot; and that her eyes bothered her. She went to him because of a neuralgia on the right side of her face. He prescribed muscle relaxants and pain medication. He gave her a neurological examination. Plaintiff testified that she told him about pain in her arms, about her throat, about being lightheaded. She told Dr. Moore about dragging her foot which started about the time she was released from Jackson Park Hospital after the accident in about October, 1970.

The next time she saw Dr. Moore was in November of 1971, and then in January of 1972 when she went to see him about her cervical spine and her neck. At that time, as on each prior occasion, Dr. Moore did a complete neurological examination of her. She continued to see Dr. Moore until January 1974, on approximately a monthly or bimonthly basis. She told him of lightheadedness, dizziness, loss of balance and difficulty in swallowing. Dr. Moore conducted various tests, including many Xrays and a brain scan, and he prescribed medication.

Dr. Moore testified for plaintiff that he was licensed to practice medicine in Illinois in 1969. He began at Presbyterian & Rush Medical School and has been at Michael Reese and the University of Chicago practicing internal medicine since then, although when he came from Boston his specialty was cardiology. He has taught medicine for eight years, the last three years at the University of Chicago. Dr. Moore saw plaintiff a total of 18 times from September 1971 until about December 1973.

He stated that plaintiff first came to his office in September, 1971, concerned with symptoms that she thought she had developed from an accident she had had. Prior to the accident she had felt perfectly well. Her symptoms were primarily from the midchest up and primarily on the right side. She had weakness and numbness in her right arm, pain in her neck, decreased range of motion in her neck. She had sensory findings in her face (right side), and weakness in her right leg. He took her history and did complete medical and neurological examinations. He found paresthesia in the right jaw. At times her ability to sense was present and at times she exhibited numbness. He found a weakness in the right arm and in the right leg. She was having pain in her cervical spine and right shoulder and had a diminished ability to grip. In her lower right extremity there was no pain, it was just objectively weak. She wobbled which demonstrated a weakness in the right leg and made it difficult for her to walk. Her brain scan was normal. She had muscle spasms and pain in the cervical spine. He recommended decreased activity and thought she was in no position to continue to work. He gave her muscle relaxants and prescribed heat applications.

Dr. Moore found paresthesia and hyposthenia attributable to the trauma but also it was apparent that something more than trauma was involved. It appeared that she had more than an acute injury. Plaintiff was under Dr. Moore's care until approximately December, 1973. In his medical opinion there is a causal relationship between the condition of ill-being he diagnosed and the accident. His diagnosis was, first, trauma, and, second neuropathy of unknown variety of etiology.

Dr. Moore on cross-examination was unable to find notations regarding several of the plaintiff's symptoms or complaints in the record which defendant offered in evidence since that record was incomplete. The record did indicate that on November 11, 1971, the neurological examination was negative and motor negative. He noted neuralgia concerned itself with the fifth trigeminal nerve, which could have been caused by trauma or independent process. The brain scan ruled out any space-occupying lesion such as brain tumor as the cause of plaintiff's complaint. There was an objective finding of mild cervical spasm. Although he testified to findings of lightheadedness, dizziness, loss of balance, a fall resulting in a broken arm and difficulty with right arm and leg, these findings were not in his records. He found no evidence of radiculitis; "She didn't get that close to the nerve roots."

The above symptomology of plaintiff was noted in a letter from Dr. Moore to the Department of Public Aid dated April 28, 1972. Dr. Moore also noted diplopia. Dr. Moore never found any etiology of the sensory problems or radiculitis. In response to a hypothetical question describing a case history substantially the same as plaintiff's, Dr. Moore testified that there was a causal relationship between the trauma of the accident of September 27, 1970, and the symptoms of plaintiff. She last saw Dr. Moore in February 1974.

During the time she was seeing Dr. Moore, plaintiff was involved in an automobile accident. On February 3, 1973, 28 months after the CTA accident, plaintiff's car was hit by another automobile. She was admitted to South Shore Hospital that evening with complaints of neck and back pain and numbness in her right arm. Plaintiff testified that after this accident the same complaints for which she had been being treated since the CTA accident returned and were aggravated.

The following morning, February 4, 1973, plaintiff was seen by Dr. William J. Marshall, whose specialty since graduating from Loyola Medical School in 1954 has been general surgery. Dr. Marshall testified for the defendant that when he saw plaintiff the first time, he took her history and examined her. He did not have any independent recollection of plaintiff and indicated he would need to refer to the hospital records since he sees so many emergency room patients. The records indicate that he examined her eyes and found no nystagmus (involuntary oscillation of the eyeballs). He tested motor strength by shaking hands with her. He tested her reflexes by stroking her foot (Babinski test). He found no neurological pathology at that time. He testified that in no way did he give her the kind of neurological examination she might have been given by a neurologist. She had a very spastic, stiff neck which could have been causally related to the accident of the previous day. Her Xrays showed no fracture or pathology. The lordotic curve seemed normal. However, the resident in the emergency room thought she might have had an abnormality in the Xrays and put her in traction temporarily. Plaintiff complained of dizziness; problems with her right side, right arm and left leg; numbness in her right hand and on the right side of her face. Dr. Marshall did not know whether these problems were the result of the accident of February 3, 1973, or of the accident two or three years before. It was unusual that plaintiff should complain at one time of problems on her right side and another time of problems on her left side. This could be something of a neurologic nature. Numbness of which she complained would probably have no relationship to any nerve root irritation of the cervical region suffered as a result of the February accident but rather signals a possible neurological or vascular problem. Dizziness is a symptom which could be related to a neurologic disorder.

When he examined plaintiff he knew she had some neurological problem in addition to her neck problem since she had been under the care of a neurologist for two years. Dr. Marshall centered his treatment on the complaint with respect to her neck to determine whether she had a serious injury to the cervical spine. He diagnosed whiplash injury to the neck with nerve root involvement. She was treated for six days in the hospital and she made improvement with respect to her neck. She was sent to a physiotherapist as an outpatient and saw Dr. Marshall once after her release. He presumed she was going back to the neurologist.

Dr. Marshall found no evidence of multiple sclerosis. He testified that he is not a neurologist nor an orthopedist and has no special training in those areas. He does not treat multiple sclerosis patients. An internist or neurologist would diagnose and treat multiple sclerosis. He stated that multiple sclerosis is very difficult to diagnose. When he stated he saw no evidence of multiple sclerosis in plaintiff, the basis of his answer was that he saw no classical signs of multiple sclerosis such as bladder difficulty. Dr. Marshall's records show that he stated there were few findings to explain her symptoms except for spasm in the neck muscles and numbness in the right side of her face.

Plaintiff testified that after her release in February 1973 from South Shore Hospital plaintiff returned to and continued to see Dr. Moore. She saw him the last time in February 1974, when she was admitted to Michael Reese Hospital at the request of Dr. Harold Klawans.

Plaintiff testified that she went to see Dr. Harold Klawans in February 1974 at his office in Michael Reese Hospital and that his initial examination of her was very thorough taking between 45 minutes to an hour. She was then admitted to the hospital for eleven days during which time many tests were run ...

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