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Bergen v. Shah-mirany





APPEAL from the Circuit Court of Cook County; the Hon. DOM J. RIZZI, Judge, presiding.


Rehearing denied May 22, 1980.

Defendants appeal the order of the trial court granting a new trial after a jury had returned a verdict in defendants' favor in a medical malpractice action brought by plaintiff. First, they contend that the case should never have gone to the jury because their motions for a directed verdict should have been granted since plaintiff had failed to make out a prima facie case against them. Second, they contend that even if the case were properly before the jury the trial court erred in granting a new trial based on its finding that defendants had improperly questioned certain medical witnesses. We reverse.

Plaintiff, Cynthia Dickstein Bergen, was born with certain abnormalities in her right hand. Despite these abnormalities, she could use her right hand while playing the piano, typing and working as a full-time nurse's assistant. After the performance of the medical procedure involved in this case, she could no longer use her right hand to do any of those things.

On February 18, 1972, plaintiff, who was complaining of chest and shoulder pains and exhaustion, was admitted to St. Francis Hospital by defendant Dr. Jafar Shah-Mirany, a cardiovascular thoracic surgeon. At the time of her admission to the hospital, she was taking digitalis, which is medication for heart failure or irregularity. Upon entry, a history was taken and a physical examination was performed. The results indicated that plaintiff had a rapid heart rate and a harsh murmur in the pulmonic area of the heart. On the basis of her complaints, her history, and the physical findings, she was diagnosed on admission as having congenital heart disease. Various tests were also performed on her during her stay in the hospital. A cardiac series was performed and revealed possible pulmonary stenosis (narrowing) or dilation of the pulmonary artery. Both an electrocardiogram and an echocardiogram were performed and revealed "sinus tachycardia" or fast heart rate. After most of the test results were in, Dr. Shah-Mirany asked defendant Dr. Steiner, a cardiologist, to further evaluate plaintiff.

Dr. Steiner reviewed the results of plaintiff's tests and her admitting history and physical examination. He did not necessarily agree with the electrocardiographer's finding that plaintiff had sinus tachycardia. Also, contrary to the electrocardiographer's findings, he found a positive Q wave on plaintiff's electrocardiogram which indicated to him that she might have some sort of left heart disease. He examined plaintiff on February 21 and, after his examination, made the following progress note on plaintiff's hospital chart:

"2-21-72. Problem of recent flu superimposed on mild pulmonary murmur, with chest pain and dyspnea, on effort. Differential diagnosis pulmonary stenosis mild pericarditis * * *."

Based on his examination and the various other information before him, he decided to perform cardiac catheterization studies, which are a series of invasive diagnostic tests of the cardiac function through the use of radiopaque dyes and X ray. In particular, he decided to perform a right heart catheterization, which requires the placing and passing of a catheter through a vein either in the antecubital fossa of the arm or through the femoral vein of the groin, a left heart catheterization, which requires the placing and passing of a catheter through the brachial artery in the arm of the femoral artery in the groin, and a coronary angiography, which requires injecting a radiopaque substance into an artery. Dr. Steiner chose the right heart catheterization, which constitutes a right heart study, and the left heart catheterization and coronary angiography, which constitutes a left heart study, because the information which he had on plaintiff's condition suggested right and left heart disease. Although, at trial, Steiner could not specifically recall talking to plaintiff about the catheterization procedure prior to its performance, he did say that he always follows a procedure in which he explains the tests and their risks, including brachial artery obstruction, to a patient before the catheterization. Although plaintiff, at trial, stated that she did not know what a catheterization was and was not aware of the risks at the time she signed a consent authorizing the tests, she did state that she voluntarily signed it and understood its meaning.

On February 22, the catheterization was performed on plaintiff's right arm because the equipment necessary for the tests was positioned such that a right arm test would be easier. Plaintiff remained in the catheterization laboratory for two hours, but it took only 5 to 10 minutes to perform the right heart study and less than an hour to perform the left heart study. Findings from the studies indicated that plaintiff had a mild pulmonary stenosis and a persistence of congenital abnormalities, but that these conditions did not require surgery.

After the catheterization, plaintiff noticed that her right arm was cold and blue and had no radial pulse. On February 23, Dr. Shah-Mirany visited plaintiff and made the following notations on plaintiff's hospital chart:

"No pulse in right hand. Pale, some pain. Will explore the artery and restore circulation tomorrow.

Right brachial artery thrombectomy and patch graft tomorrow." On February 24, he performed the necessary surgery and removed a little clot from the brachial artery. This surgery restored the circulation and the radial pulse. Plaintiff was subsequently released from the hospital.

Dr. Shah-Mirany next saw plaintiff about 2 or 3 weeks after her release from the hospital. At the time, he evaluated her right arm and found both its pulse and functioning power to be "okay." On February 12, 1973, he again saw plaintiff as an outpatient at St. Francis Hospital. At that time, she complained of a number of things, including pain in her shoulder, leg, and chest. He examined her for about 5 minutes. In his outpatient report for the February 12 visit he made the following notation:

"Patient has cardiac catheterization sometime ago, and also had brachial artery repaired. Now has tenderness and some numbness and tingling in right hand. Radial pulse absent. This is circulatory insufficiency. Would like to treat ...

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