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Young v. Cerniak





Appeal from the Circuit Court of Cook County; the Hon. James E. Sullivan, Judge, presiding.


This appeal is from a judgment for plaintiff in a wrongful death action alleging medical malpractice. Cerniak and Kassel (hereinafter defendants) *fn1 contend that (1) the trial court erred in (a) denying their motions for change of venue, and (b) entering judgment on inconsistent verdicts; (2) the jury was improperly instructed with regard to the appropriate standard of care; and (3) the verdicts against them are contrary to the manifest weight of the evidence.

It is undisputed that plaintiff's decedent, Robert Young (Young), was injured in a fall on January 23, 1975. For several days thereafter, he was treated by Dr. Duffy, an orthopedic surgeon, who diagnosed a sprained wrist and a possible sprained or bruised right knee. However, Young complained of increasingly severe pain in his right calf throughout that period, and was eventually admitted to St. Joseph Hospital, where defendants and Dr. Wastalu, specialists in internal medicine, treated him for deep vein thrombophlebitis. On February 8, 1975, six days after treatment began, Young died as a result of a massive pulmonary embolism. The pertinent issues at trial were whether defendants deviated from the standard of care by failing to administer the proper amount of the anticoagulant Heparin, and by failing to detect symptoms of pulmonary emboli and provide proper treatment therefor, and whether their deviation from the standard of care was the proximate cause of Young's death.

At trial, William Frescura, testifying for plaintiff as an adverse witness, stated that he was chief pharmacist at St. Joseph Hospital and a member of the hospital committee charged with developing the hospital formulary, a list of drugs which had been approved by the medical staff for treatment of patients in the hospital. One of the references used by the committee in generating that listing was the Physician's Desk Reference, a compilation of package inserts provided by drug manufacturers which list usages of the drugs, pertinent warnings, and recommended dosages. Frescura further testified that the formulary set forth a procedure for the administration of Heparin, an anticoagulant which prolongs clotting time and prevents the formation of new clots as well as the extension and embolization of existing clots. According to the formulary, "Heparin effect is monitored by clotting time determinations," and "[d]osage is that amount of Heparin which maintains the coagulation time at a level two to three times the patient's normal coagulation time." On cross-examination, Frescura agreed that a physician must exercise judgment in determining proper dosage, taking into account patient reaction as well as the manufacturer's recommendations, and that, in the instant case, the physicians' orders for 5,000 units of Heparin to be administered every four hours was within the recommended range of dosage.

Dr. Cerniak, testifying as an adverse witness, stated that he first examined Young on February 3, 1975, the day after his admission to the hospital, and that at that time he displayed the classic symptoms of deep vein thrombophlebitis, which is an inflammatory reaction in blood vessels leading to swelling and the formation of blood clots. Standard treatment for that condition is bed rest, elevation of the leg and application of heat, and administration of an anticoagulant to prevent the formation of further clots. According to Dr. Cerniak, that was the therapy provided in the instant case, and he ordered 5,000 units of the anticoagulant Heparin to be administered by intermittent intervenous injection every four hours, for a total dosage of 30,000 units in 24 hours, and a daily test of clotting time. Dr. Cerniak further stated that one possible complication of thrombophlebitis is pulmonary embolism, which occurs when a blood clot which has formed in the leg becomes dislodged, forming what is termed an embolus, and travels to the lungs. The autopsy on Young revealed that this was the cause of his death, and that report further indicated that there were numerous emboli in his lungs, ranging in age from more than one week old to the very recent, massive embolus which caused his death. However, it was impossible to determine when the clot which became the fatal embolism was formed.

Dr. Cerniak acknowledged that the dosage of Heparin remained the same throughout Young's treatment; that the hospital laboratory form used to report the result of clotting-time tests stated that "therapeutic range should be 30 to 45 seconds," but tests on Young showed clotting time ranging from 16 to 26 seconds, with a control time of 15 to 17 seconds; and that he was aware of the statement in the hospital formulary that "dosage is that amount of Heparin which maintains the coagulation time at a level two to three times the patient's normal coagulation time." He also agreed that the Physician's Desk Reference recommends that the dosage be at this level, and that while that book states as guidelines an initial dose of 10,000 units followed by intermittent injections of 5,000 to 10,000 units every 4 to 6 hours, it also states that dosage must be adjusted for the individual patient based upon suitable laboratory tests.

Dr. Cerniak also testified that a number of physicians recognized as authorities in the field have advocated the use of tests to determine the anticoagulating effect of Heparin, and the maintenance of coagulation time at two to three times normal, and he acknowledged that this is the most popular approach. However, he noted that a number of other recognized authorities, including those at the Mayo Clinic where he received his training, advocated administration of a fixed dosage, as was given in the instant case, with periodic tests to insure that the dosage was not inordinately high, since a major risk in the use of Heparin is the occurrence of uncontrolled internal bleeding because of the anticoagulating effect of that drug. Many treatises by experts stated that there was no consensus among the medical community with regard to the need for laboratory monitoring of anticoagulant therapy. Dr. Cerniak admitted stating in a deposition that the therapeutic range for Heparin was that amount which achieved a clotting time approximately twice the patient's normal clotting time. Nevertheless, he asserted that an equally acceptable method of treatment was to adjust dosage not only according to test results, but according to clinical observation. In the instant case, he maintained, all clinical signs indicated that Young's condition was improving under the method chosen. His temperature did fluctuate slightly throughout treatment, but that could have been caused by the thrombophlebitis. Otherwise, Young indicated a lessening of pain in his right calf, the swelling had subsided, and his white blood cell count had decreased since admission to the hospital. Moreover, one of the classic symptoms of deep vein thrombosis, referred to as Homan's sign (pain upon stretching the calf muscles), which was present when he first examined Young, had disappeared by the third or fourth day after admission. Finally, the nurses' notes for that time period indicated that Young slept well, was not complaining of pain, and had a good appetite, all signs that he was responding to treatment.

Dr. Cerniak acknowledged that where acute pulmonary embolism is present, the proper dosage for Heparin is approximately 60,000 units per day; however, he stated that Young showed no symptoms of pulmonary embolism. A chest X ray taken at the time he was admitted showed that his lungs were clear, and he did not have any of the common signs of pulmonary embolism; that is, a cough, stabbing pain in the chest, rapid heart rate, and shortness of breath. He admitted that three days after therapy began Young told the nurses that he suffered from weak spells, accompanied by profuse sweating several times a day, but that complaint was too nonspecific and isolated an event to be a warning of pulmonary embolism. Furthermore, the dull ache in his chest described by Young on admission was not the type of pain associated with pulmonary emboli, which is a severe, incapacitating pain.

Finally, Dr. Cerniak stated that, while Heparin will prevent the formation of new clots or an increase in the size of pre-existing clots, it cannot dissolve clots which have already formed, and in his opinion the amount of Heparin administered bears no relation to the embolization of existing clots, although the drug may reduce the possibility of a clot breaking off. Moreover, Heparin is not effective in a certain percentage of cases. In his opinion, the clot which embolized and caused Young's death was formed, at least in part, prior to his admission to the hospital and the commencement of anticoagulant therapy. Dr. Cerniak admitted that the autopsy report indicated that other clots in Young's leg were from 24 hours to 3 weeks old.

Dr. Kassel, testifying as an adverse witness, stated that he examined Young twice during his hospitalization and concurred in the diagnosis. Because Young appeared to be responding well to treatment, he (Kassel) ordered that the dosage of Heparin prescribed by Dr. Cerniak be continued, although he was aware of the hospital formulary which stated that the dosage should be regulated to attain a clotting time two to three times normal, a level which he admitted was never reached during treatment of Young. However, he asserted that Young's improvement under the therapy provided was such that, after four days, application of heat was discontinued and Young was allowed to use the bathroom facilities located adjacent to his bed and to sit in a chair with his leg elevated for one to three hours per day. Dr. Kassel further testified that Young showed no symptoms of pulmonary embolism, but admitted that the weakness, sweating, and increased respiration rate noted by nurses three days after admission might have related to small emboli occurring at that time.

Dr. Joseph Linhart, testifying for plaintiff as an expert in the field of internal medicine, stated that the accepted treatment for deep vein thrombophlebitis as well as pulmonary embolism is bed rest, elevation of the legs, and administration of an anticoagulant. He acknowledged that anticoagulant therapy does not dissolve pre-existing clots, but stated that it does help prevent those clots from increasing in size as well as lessen the possibility that they will break off and travel to another area. He explained that it is important to prevent clots from increasing in size because it is generally larger clots which break away, and as long as the clot is growing larger, it is prevented from becoming firmly attached to the blood vessel through a natural process called organization. Dr. Linhart further testified that it was within the accepted standard of care to begin with an initial dose of 5,000 units of Heparin, although some authorities would advocate giving a larger initial dose where, as here, the patient is larger than average. However, standard practice further required that the clotting time be monitored frequently, and that an attempt be made, through regulation of dosage, to bring clotting time within the range which the hospital and the practicing community established as the therapeutic range, i.e., a safe and effective level of anticoagulation. Here, the hospital had determined that range to be two to three times the normal clotting time, and most hospitals develop their standard based on the usual practice within the community of physicians in the locality.

Dr. Linhart also testified that defendants deviated from the standard of care in failing to order further tests when Young showed symptoms of pulmonary emboli. Had the diagnosis been made, other techniques might have been utilized, such as surgery, which could have prevented Young's death. One possible indication of the presence of pulmonary emboli was the mild enlargement of Young's heart and pulmonary arteries shown in the chest X ray taken upon admission. While this was not conclusive, it should have put defendants on notice to look for other symptoms, such as chest pain, shortness of breath, coughing, dizziness, profuse sweating, and fever. Dr. Linhart admitted that Dr. Cerniak asked Young about these symptoms during his initial examination, and recorded a negative response, but stated that there was no indication in the medical records that any further examination of Young's heart and lungs occurred, since no notations relating thereto were made. Dr. Linhart then testified that further signs of possible pulmonary emboli were present, such as the dull ache described on admission and the weak spells, sweating, and elevated respiration rate noted by nurses on the third day of hospitalization. There was no indication in the chart that these symptoms were properly followed up through further examination and readily-available tests.

On cross-examination, Dr. Linhart admitted that the clinical signs noted in the medical records indicated that Young's condition with regard to the thrombophlebitis in his right calf was improving, and that there are no definitive symptoms of pulmonary embolism. He also acknowledged that there is some controversy over the need to use testing in the treatment of thrombophlebitis with Heparin. However, he asserted that there was a consensus of opinion, since a majority of authorities adhered to the method of treatment which recommended that the dosage be regulated through frequent testing, to maintain clotting time at two to three times normal. That this was the accepted standard within the community was evidenced by the hospital's adoption of that method in its formulary. Furthermore, he asserted, it is not good practice to incorporate new research until such time as a majority has accepted it as a proper method of treatment.

It was stipulated that a statement of procedure for administering or testing Heparin used by the laboratory at St. Joseph Hospital in 1975 provided:

"Intervenous Heparin Therapy, total adult dose of 30,000 units is required daily. To prevent excessive bleeding, an assay of Heparin activity should be obtained prior to the next intervenous dose. If the thrombin time is prolonged, the Heparin dose should be reduced."

Dr. Cerniak, testifying on his own behalf, added to his earlier statements that it is not acceptable practice to merely follow the recommendations set forth in the Physician's Desk Reference without regard to any other information available. The internist must take into account, in addition, the statements of the patient, the results of physical examination, nursing notes, and laboratory data. In this case, all available information showed a pattern of daily improvement, indicating that the Heparin was producing the desired effect. Dr. Cerniak also testified that the enlargements shown in Young's chest X ray were not conclusively indicative of the presence of pulmonary emboli, and that he did inquire about other symptoms but Young stated that he did not have any stabbing chest pain, shortness of breath, weak spells or fainting, which might have been indicative of pulmonary emboli.

Dr. Kassel, testifying in his own behalf, stated that each time he examined Young he listened to his heart and lungs, which were normal, and that no notations thereof appear in the chart because it is not usual practice to record negative findings unless they are significant to treatment. Dr. Kassel further testified that he questioned Young regarding the weak spells reported by the nurses, and Young indicated that he had only one serious episode, which had occurred at approximately noon the previous day, but stated that there had been no recurrence. He (Kassel) did not find this isolated incident significant, but advised Young to report any further spells. The medical records did not indicate that there was any recurrence, and Dr. Kassel asserted that it was extremely unlikely that a vague, one-time episode such as the one described would have been caused by pulmonary emboli.

Dr. Buckingham, a specialist in internal medicine testifying for defendants, stated that the dosage of Heparin administered to Young was appropriate, and the treatment provided met accepted standards of care within the practice of internal medicine. He also stated that the manufacturer's recommendations set forth in the Physician's Desk Reference were only a guideline, and deviation therefrom was appropriate where required by a patient's individual needs. If a patient showed improvement, as did Young, that was the best indication that the drug was having the desired effect. Dr. Buckingham also testified that pulmonary embolus is very difficult to diagnose, and there was nothing in the medical records which would have alerted the treating physicians to the fact that embolization was occurring. The chest X ray taken on admission was not indicative of any particular problem, and the medical records showed that Dr. Cerniak did follow up on the mild enlargement shown in the X ray by seeking information on possible additional symptoms, and received negative responses from the patient. On cross-examination, Dr. Buckingham admitted stating in a deposition that generally the therapeutic range for Heparin is that dosage which elevates the clotting time to 2 or 2 1/2 times the control level. He also agreed that it was possible that some emboli occurred at the time Young complained of weakness and sweating.

Dr. Rosenbaum, also testifying as an expert witness, said that there was nothing in Young's medical records which would have indicated impending pulmonary embolus. He acknowledged, however, that the presence of fever and weak spells required further examination, but stressed that those symptoms were not necessarily indicative of any specific problem.

Finally, defendants presented the evidence deposition of Dr. Stanford Wessler, who testified as an expert in the field of peripheral vascular diseases. He stated therein that the treatment provided in the instant case was consistent with good medical practice. Dr. Wessler also noted that there was a considerable amount of controversy in the field with regard to proper dosage. Many internists, possibly the majority, did advocate using periodic tests in order to regulate dosage and achieve a clotting time within a certain range, usually two to three times normal. However, he stated that this method was not universally accepted and, in his opinion, such tests were of no value. In 1975, a number of experts advocated, as did he, the use of a fixed dosage, without laboratory monitoring, as was followed in the instant case. Dr. Wessler acknowledged that he had changed his position with regard to the proper dosage of Heparin, and that at one time he did advocate adjusting it to achieve a certain level of anticoagulation. He also testified that while Heparin reduces the incidence of embolization of pre-existing clots, in 10 to 20% of cases emboli will occur despite the proper use of Heparin.

At the close of plaintiff's evidence, the trial court directed verdicts for two defendants — Dr. Duffy (the orthopedic surgeon) and the corporation which owned and operated St. Joseph Hospital. At the close of all the evidence, the jury returned verdicts for plaintiff against defendants herein, and against plaintiff as to a third internist, Dr. Wastalu, and Joliet Medical Group, Ltd., the ...

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