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Alton v. Kitt





APPEAL from the Circuit Court of Sangamon County; the Hon. JAMES T. LONDRIGAN, Judge, presiding.


This is a medical malpractice case. The plaintiffs, Harry J. Alton and Doris Alton, sought to recover compensatory and exemplary damages from defendants, Victor Kitt, M.D., and the Springfield Clinic and its managing partners. The alleged negligent and wanton acts or omissions stem from the tonsillectomy and post-operative care of Mr. Alton. A trial commenced March 11, 1980. After a week of testimony, a Sangamon County jury returned a verdict for all defendants. Plaintiffs bring this appeal.

The facts take us back a full eight years. In July 1973, Mr. Alton met with Dr. Rubenstein, a managing partner of the Springfield Clinic, at the clinic's offices. Mr. Alton was referred there by Dr. Greening for a possible tonsillectomy due to chronic throat ailments. Dr. Rubenstein confirmed this diagnosis. Because of Mr. Alton's employment as a contractor, the operation was scheduled for January 14, 1974.

On January 13, 1974, Mr. Alton checked into St. John's Hospital in Springfield. Blood tests and blood pressure reading were conducted. Due to an injury to Dr. Rubenstein, Dr. Kitt, an associate of the Springfield Clinic, was to perform the surgery on January 14, 1974. Dr. Kitt testified that he reviewed the clinic's file and the results of the tests the hospital performed on Mr. Alton. He met the patient for the first time in the corridor which led to the operating room.

The operation lasted about 40 minutes. While in the recovery room, Mr. Alton began bleeding from the left lower tonsillar bed. He was returned to the operating room and a surgical method employed by Dr. Kitt stopped the bleeding. Later, Mr. Alton was transferred to his hospital room. The Altons did not learn of this recovery room complication until almost one year later.

The next day, January 15, 1974, around noon, Mr. Alton was released from the hospital. Dr. Kitt telephoned the hospital authorizing the discharge. Dr. Kitt could not recall whether he ever personally checked the patient before releasing him. In any event, no medication was prescribed on release. The only information provided concerning post-operative care was furnished Mr. Alton by Dr. Rubenstein at their July 1973 meeting.

On Thursday, two days later, while at home, Mr. Alton started bleeding from his mouth again. Doris Alton, his wife, called the clinic and was told to bring Mr. Alton to the office. The Altons arrived at the Springfield Clinic 30 minutes later. Dr. Kitt examined Mr. Alton's throat and observed blood stains, but no active bleeding. Mr. Alton was nervous. A five-milligram injection of Valium, a tranquilizing agent, was administered by Dr. Kitt. The doctor left the room.

Ninety minutes later Mr. Alton began hemorrhaging from his mouth. Mrs. Alton exited at once and informed two nurses, Debbie Ciaccio and Gail Ratliff, of her husband's condition. Dr. Kitt was summoned. Both nurses entered the room and found Mr. Alton standing over the sink spitting blood into it. Mrs. Ciaccio put Mr. Alton in a dental-type chair which was cocked at a 45-degree angle. Dr. Kitt entered. What occurred next is not exactly clear from the record. It appears that Dr. Kitt was planning to begin suturing the left lower tonsillar bed — the source of the bleeding — in Mr. Alton's throat. Dr. Kitt testified that Mr. Alton was quite agitated, although this was disputed. Nonetheless, Dr. Kitt injected Mr. Alton intermuscularly with a 50-milligram dosage of meperidine (Demerol), a pharmaceutical narcotic. Since Dr. Kitt did not have the proper sutures, he sent Mrs. Ratliff to obtain them. During this time Mrs. Ciaccio was readying a suction machine. The testimony is conflicting as to whether it was ever used. At this point Mr. Alton either passed out or went into respiratory arrest.

When Mrs. Ratliff returned with the sutures, Dr. Kitt was performing external cardiac massage on Mr. Alton. This involves putting hand pressure on the patient's chest, then releasing the pressure, in order to activate the heart muscle. He told her to signal the clinic staff that an emergency existed. She complied immediately. The first physician to arrive was Dr. Castro, who was later joined by others. Because of the amount of blood in Mr. Alton's throat, air was not able to pass to the lungs. Accordingly, Mr. Alton's brain was deprived of life-saving oxygen and damaged. Quickly sizing up the situation, Dr. Castro placed Mr. Alton on the floor and performed a tracheotomy in order to get an airway open from the outside of his throat. Since time was a critical factor, the tube of a ballpoint pen was used in this operation. Dr. Castro's efforts saved the patient's life but were too late to prevent damage to his brain.

When the ambulance arrived, Mr. Alton was transported to St. John's Hospital. He remained in a coma for 11 days. On January 20, 1974, Mr. Alton began bleeding from his mouth. Dr. Rubenstein was called to stop bleeding in the left lower tonsillar bed. The operation lasted six hours. It was successful. Altogether, Mr. Alton was hospitalized 44 days.

Because of brain damage, Mr. Alton was afflicted with speech impairment, an eye dysfunction, and body tremors. The latter occurred spontaneously, resulting in his body assuming a rigid posture, which he cannot control. Almost 30 days after release from the hospital, Mr. Alton began falling down while walking. Such spills resulted in the plaintiff breaking his shoulder, his teeth and suffering facial lacerations. In the last five to six years Mr. Alton has fallen, while walking, about 400 times.

In an attempt to alleviate this condition, Mr. Alton has been treated by at least eight physicians in three different States. He has undergone both speech and physical therapy. He has submitted to counseling and psychiatric care for the phobia he possesses about falling every time he walks. This lawsuit was filed January 5, 1976.

The third amended complaint, filed August 31, 1978, contains eight counts. Count I is the negligence count which claims Dr. Kitt was negligent in: failing to examine Mr. Alton or confer with him or Drs. Rubenstein or Greening prior to surgery; the performance of various surgical operations on Mr. Alton concerning the extraction of his tonsils; neglecting to examine Mr. Alton prior to discharge from the hospital and prescribe proper medication; and, in properly administering medication and rendering medical treatment of Mr. Alton at the Springfield Clinic on January 17, 1974. Count II realleged the bulk of count I and stated such acts or omissions were accomplished in a willful or wanton manner and sought punitive damages. Counts III and IV sought compensatory and punitive damages from the Springfield Clinic based on a theory of respondeat superior. Count V claimed loss of consortium on Mrs. Alton's behalf. Counts VI, VII, and VIII sought compensatory and exemplary damages based on the theory of res ipsa loquitur.

At the end of plaintiffs' case-in-chief, several components of the negligence count were withdrawn on plaintiffs' oral motion. This deleted the claims of negligence stemming from Dr. Kitt's failure to examine Mr. Alton prior to the tonsillectomy and confer with the patient and previous treating physicians. Also, the claims of negligence arising from post-operative bleeding immediately after the tonsillectomy, and the failure to prescribe medication upon discharge from the hospital were excised at the plaintiffs' request. The trial court then entertained motions for directed verdicts.

After the hearing on such motions, the trial court struck counts IV, V, VII and VIII, entering directed verdicts thereon. All the negligence pleas were deleted except those claims concerning Dr. Kitt's improper administration of medication and cardiac massage treatment. Those two issues, within the structure of plaintiffs' theories of negligence and respondeat superior liability, were the only ones the jury considered. As to Mrs. Alton, the jury weighed her claim for loss of consortium. Also, the jury was permitted to decide punitive damages liability as to Dr. Kitt individually. Verdicts were returned for all defendants.

On appeal, plaintiffs advance nine separate claims of error. First, did the trial court err in striking various portions of plaintiffs' amended complaint. Next, whether the jury's verdicts on Dr. Kitt's administration of cardiac massage and medication were against the manifest weight of the evidence. Also, whether the trial court incorrectly sustained objections to plaintiffs' closing argument. The remainder of the allegations of error concern the propriety of expert testimony: whether defendants' expert was improperly allowed to testify concerning certain medical texts; whether the trial court erred in refusing to strike certain expert testimony, as well as admitting Dr. Rubenstein's testimony on a pathology report he did not prepare. Finally, we are asked to address whether plaintiffs' expert was properly cross-examined with a medical treatise.

Count I of plaintiffs' pleading is comprised of some 15 subsections outlining defendants' alleged negligent acts or omissions. Seven of these claims plaintiffs withdrew voluntarily on their own motion. Thus, such issues were not addressed by the trial court. Nor shall we. An evaluation of the trial judge's directed verdicts on the remaining claims of negligence is our opening inquiry.

At the outset, the standard of review must be declared. In deciding whether to direct a verdict, a trial judge must view the evidence in a light most favorable to plaintiff's cause. In other words, if the evidence adduced so overwhelmingly favors the defendants that no contrary verdict could ever stand, the motion should be allowed. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.) This does not mean, as plaintiffs imply, that defendants' burden is somehow increased. The trial judge must gauge whether the nonmoving party has produced some proof on each element vital to his cause of action. (Accord, Kokinis v. Kotrich (1980), 81 Ill.2d 151, 154.) If such party fails to do that, directing a verdict is proper.

Plaintiffs maintain Dr. Kitt performed the tonsillectomy in a careless, negligent manner, resulting in bodily injury to Mr. Alton. Even in the absence of expert medical testimony indicating the level of care, plaintiffs assert, Dr. Kitt breached his duty of care to Mr. Alton. Plaintiffs declare that Dr. Kitt's conduct was so grossly defective, or that a tonsillectomy is so common a surgical operation that a layman would have no difficulty in appreciating the standard of care owed by an attending physician. Although we recognize some dictum supports this proposition (Graham v. St. Luke's Hospital (1964), 46 Ill. App.2d 147, 158), we believe such a sweeping statement can only be understood within the purview of the facts of a given cause of action. Hernandez v. Power Construction Co. (1978), 73 Ill.2d 90, 98-99.

The record contains no testimony, other than Dr. Kitt's, concerning the propriety of the surgical technique used to close the wound in Mr. Alton's throat after removal of his tonsils. The proposition was not discussed with Dr. Curtis, plaintiffs' expert. The record is without evidence which demonstrates the standard of care generally practiced in tonsillectomy cases. Dr. Rubenstein testified that three different methods (suture ligature, "free tie," and cauterization) were widely accepted techniques. He stated that personally, he preferred the "free tie" method, but did not testify such method was the one generally used in the medical community. Dr. Rubenstein had, on various occasions, used all three methods.

Failing to produce expert testimony critical of the standard of surgical technique employed by Dr. Kitt, plaintiffs did not show the breach of duty a physician owes to his patient. Nevertheless, plaintiffs contend such expert testimony was unnecessary since the requisite knowledge to understand the ...

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