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Khatib v. Mcdonald

OPINION FILED AUGUST 22, 1980.

TAMIN KHATIB, PLAINTIFF-APPELLANT,

v.

ROBERT MCDONALD, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY JONES, JR., Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from a jury verdict of $3,000 in a personal injury action and seeks a new trial on the question of damages only, contending (1) that the award was inadequate as a matter of law; and (2) that the jury's determination of damages was tainted by error (a) in giving an instruction that it was plaintiff's duty to exercise ordinary care to obtain medical treatment, (b) in refusing to exclude evidence concerning a prior accident in which plaintiff was involved, (c) in overruling plaintiff's objections to defense counsel's closing argument concerning the prior accident, (d) in allowing a witness to read nurses' notes written on a hospital chart, and (e) in not allowing plaintiff to introduce testimony concerning his heart condition.

Plaintiff was driving his automobile northbound on Lake Shore Drive in Chicago in the second easternmost lane, with his wife and infant child as passengers. Defendant was driving in the same direction alongside plaintiff, in the easternmost lane. When the two vehicles arrived at the first 90 degree turn of an S-curve, they were traveling approximately eight miles per hour and, at this point, defendant drifted from his lane and struck plaintiff's vehicle twice on the right side. Plaintiff stated that on the first impact his body twisted and struck the left door; and, on the second, the left side of his back struck the armrest. He subsequently brought this action for damages because of personal injuries.

A motion in limine was presented by plaintiff to exclude evidence of (1) his refusal to undergo a myelogram and a laminectomy; and (2) his involvement in a prior automobile accident. However, from the record it appears that there was no bearing or ruling on the motion at that time.

At trial, plaintiff testified that on the date of the occurrence he was employed as a staff manager for National Life and Accident Insurance Company, where he earned an annual salary of $12,000 plus sales commissions; that at the time of the accident he was en route to the home of a prospect, who was also a friend; that after the accident he noted the odor of alcohol on defendant; that after he (plaintiff) got out of his car, he felt numbness in his right leg, pain in his lower back, and after about 15 minutes he started to limp; that a police car arrived but left after calling another car to the scene; that he and his wife then continued on to the "prospect's" house where they remained for about a half hour; that he had difficulty sleeping that night because of pain in his right leg; and that the next morning he had stiffness in his legs and hands and went to the office — but only to deliver paperwork, following which he returned home.

The accident occurred on May 18, 1976, and plaintiff testified that on May 20 he visited Dr. Barazi, who prescribed pills. He saw Dr. Barazi again on May 20 — following which, on May 28, he was admitted to Martha Washington Hospital, where he received X rays and physical therapy until June 14, but his condition did not improve; that he complained of his pain daily to hospital personnel; that he was released at his own request after his home was flooded; that afterwards, he saw Dr. Barazi seven times; that Dr. Barazi prescribed a "stimulator" device, which was not helpful (a bill for the stimulator which plaintiff purchased for $367.50 was admitted into evidence); that he (plaintiff) also visited Dr. Que, who prescribed pills and has given him massages and heat treatments — none of which helped; that he continued receiving treatments from Dr. Que up to the week before trial; that he has pain in his back and leg constantly; that he has refused to undergo a myelogram (a diagnostic procedure) because he is afraid of it; that before the accident, he went to his office on Mondays, Wednesdays and Fridays, but cannot do so now because of pain; that he has not worked at all since the date of the accident; that he uses a cane although he sometimes walks without it for exercise; and that "once in awhile" he will "putter" or barbecue in his back yard.

Defendant, called as an adverse witness under section 60, stated in substance that he was driving home from his job as president of Oak Lawn Trust & Savings Bank when his car swerved out of its lane and twice struck plaintiff's car.

Dr. Edmond Barazi then testified that when he first saw plaintiff, on May 20, he complained of severe pain in his lower back, radiating down to his legs; that he performed a routine physical examination — which included taking his blood pressure and listening to his heart, as well as pressing on his back to determine where he felt pain; that he (Barazi) gave plaintiff a shot to relax the muscles and told him to rest and apply heat to the affected areas for a few days; that when plaintiff experienced no relief, Dr. Barazi had him admitted to Martha Washington Hospital for complete bed rest and "conservative treatment" such as muscle relaxants and physical therapy to relieve stiffness; that X rays showed no bone abnormalities (which indicated only that there had been no previous injury, fracture or disease); that plaintiff was discharged on June 14, with his condition unchanged; that his final diagnosis was whiplash of the lumbar spine and post-traumatic sciatica, caused by the accident; and that his total bill was $265. The hospital invoice in the amount of $2,412.90 was introduced into evidence following which, on cross-examination, Dr. Barazi testified that while he diagnosed sciatica, he could not say for certain whether plaintiff had suffered a herniated disc — which could only be determined by a myelogram; that the notes he made in the hospital records disclosed that when plaintiff was discharged he was "improved and advised to see a doctor on follow-up." During the course of this cross-examination, after defendant's counsel had questioned Dr. Barazi with respect to the physical therapy given, the trial judge inquired as to what the hospital record showed. Defendant's attorney then asked concerning the nurses' notes on each of at least 12 days of plaintiff's hospitalization. The notes, as read aloud by the witness in the presence of the jury, stated that plaintiff slept well on those days and had complained of pain on only one night. Plaintiff's objection to this testimony was overruled. Dr. Barazi also testified that plaintiff did not limp on his most recent visit.

Dr. Leon Que testified that he first saw plaintiff on February 10, 1977; that plaintiff told him he had been in an automobile accident and, immediately thereafter, felt pain in his back and right leg; that he (Que) gave plaintiff a general physical and basic neurological examination; that plaintiff walked with a limp and exhibited some limitation in the straight leg raising test and obtained a positive reaction, which indicated that "somewhere along the lines the neurological circuit is interrupted or disturbed." Que added that the result of this test is a reflex reaction which could be falsified by the patient; that the positive Babinski test was significant in reaching his final diagnosis; namely, "possibility of a ruptured disc." Que testified further that he repeatedly recommended a myelogram which, on each occasion, was refused; that a myelogram could cause a hemotoma or nerve damage and might even result in death; that if the myelogram revealed a herniated disc, an operation known as a laminectomy would be indicated, which would entail a removal of the disc; that he gave plaintiff ultrasound treatments on five or six occasions, which were intended to relieve muscle spasms; and that plaintiff probably could work and, in particular, do office work; but he cannot sit or drive for long periods of time and should not lift heavy objects. On cross-examination, he testified that a myelogram is regarded as a standard procedure; that a spinal fusion may be necessary after the laminectomy, although that too is a standard operation; that the ultrasound treatments will not improve the herniated disc; and that he lacked sufficient objective information to give an opinion as to whether plaintiff's injury was caused by the accident. On redirect examination, Que stated that plaintiff complained of chest pains in August of 1978 and that an electrocardiogram then taken was normal but, in March of 1979, revealed incomplete repercussion. The trial judge at that point asked Que whether plaintiff's heart condition was a result of the accident. When Que stated that it was not, the trial judge instructed plaintiff's counsel not to proceed further with questions in that regard. Plaintiff's counsel nonetheless asked permission to establish that plaintiff could not undergo a myelogram because of the heart condition. The trial judge again refused, however, stating:

"The doctor still recommends a myelogram. Obviously, he doesn't feel that his heart can't stand it. He has consistently and continuously recommended a myelogram, you can't say his heart can't stand it."

Dr. Allen Hirschtick then testified that he examined plaintiff on May 4, 1979, at which time plaintiff walked with a cane and a limp; that he ordered new X rays, which disclosed that although the bones and joints were normal, there was a loss of normal lumbar lordosis which was caused by involuntary muscle spasms; that plaintiff had a complete loss of extension (i.e., he could not bend backwards); that in straight leg raising tests, plaintiff could lift his right leg only 30 degrees and his left leg 60 degrees — while 90 degrees is normal; that his diagnosis was a herniated intervertebral disc; that he is certain of this diagnosis even without the benefit of a myelogram, which is conducted before surgery to show precisely the disc believed to be ruptured; that 15 percent to 20 percent of all herniated discs do not show up in a myelogram; that a myelogram can cause persistent, severe headaches, inflammation of the covering of the spinal cord, or an allergic reaction; that even if a laminectomy is performed, the spine is never the same because much of the disc is lost; that a patient will be totally relieved of pain after a laminectomy only if a very good result is achieved; and that he recommended a laminectomy for plaintiff because his condition would continue to worsen the longer surgery is postponed. On cross-examination, Hirschtick said plaintiff told him he was afraid to undergo a myelogram.

Dr. John Henderson, an economist, testified that in 1975 (the last full year before the accident) plaintiff earned $10,341; that on the date of the accident, plaintiff had an expected work life of 21.3 additional years; and that the present value of plaintiff's expected future earnings at the time of the accident was $254,578. On cross-examination, he testified that his figures did not take into account the fact that 30% of plaintiff's expected income would have been absorbed by business expenses and that, therefore, his actual projected loss was less than the amount stated on direct examination.

Charles Potter, then called by defendant, testified that plaintiff lived in the building next door to him for four years; that in the last two years he had seen plaintiff in his yard; that in the last week, he saw him watering the lawn; that he also observed plaintiff digging in the dirt with a small trowel and had seen him using a shovel; that he had never seen plaintiff limp or use a cane; and that, with respect to plaintiff's gait, in answering a question as to whether it was more accurately described as "a walking or a mope" he stated that he did not know.

Plaintiff, called under section 60, testified he was involved in an accident on December 23, 1974, and, when asked if he sustained injuries to his "neck or back" answered, "Yes, I guess so." Then, on questioning by his own counsel, he said that he was not hospitalized ...


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