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Lebrecht v. Tuli

OPINION FILED JANUARY 17, 1985.

LINDA LEE LEBRECHT, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

K. TULI, M.D., ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (AREA E-7 HOSPITAL ASSOCIATION, DEFENDANT).



Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Medical malpractice.

Bifurcated trial.

Patient won on statute of limitations.

Doctors won on negligence.

Appeal and cross-appeal.

We affirm across the board.

Linda Lee Lebrecht, a paraplegic, brought a medical malpractice action against Drs. Tuli and Brunswick and Link Clinic (Tuli); Dr. Carlson and Christie Clinic (Carlson); and the Area E-7 Hospital Association, Mattoon Memorial Hospital (Memorial). Memorial was subsequently dismissed.

Plaintiff asserted defendants negligently failed to examine, appropriately test, diagnose, and treat her disc condition. As a result, by the time a myelogram was performed, plaintiff's 5/6 cervical disc had herniated and ruptured, causing a complete block of the spinal fluid. Because of the blockage, the pantopaque dye used in performing the test could not be removed. Plaintiff alleged she developed arachnoiditis and eventual paralysis as a result of the retained dye.

Defendants asserted they were not negligent and that the statute of limitations barred the action. A bifurcated trial was held. The jury returned a verdict in plaintiff's favor on the statute of limitations question and a separate jury returned a verdict for defendants on the negligence issue. Plaintiff appeals the negligence finding and defendants cross-appeal the statute of limitations finding.

We affirm.

Plaintiff raises eight principal issues on appeal: whether the jury's verdict is contrary to the manifest weight of the evidence; whether the trial court erred in admitting evidence about plaintiff's character and marital status, in applying Supreme Court Rule 212(b) (87 Ill.2d R. 212(b)), in ruling that evidence of plaintiff's negligence was admissible, in allowing the defendants to cross-examine co-defendants, in various rulings on expert testimony, in ruling on closing arguments and in instructing the jury.

Defendants raise four principal issues on cross-appeal: whether the trial court erred in denying defendants' motions for judgment notwithstanding the verdict; whether the trial court erred in certain evidentiary rulings, in instructing the jury, and in not sending an exhibit to the jury room.

FACTS

Chronology 1977

March 8 Plaintiff sees Dr. Tuli. March 28 Sees Dr. Freesmeier. April 3 Sees Dr. Patari. April 5 Sees Dr. Carlson. April 5 Sees Dr. Allen. April 6 Sees Dr. Brunswick. April 7 Admitted to Memorial. May 3-23 Treated by Dr. Sanders. June 6 Sees Dr. Weiss. June 8 Myelogram performed. June 9 Dr. Grubb performs laminectomy. September 14 Dr. Grubb diagnoses arachnoiditis.

MARCH 8

Dr. Kasturi Tuli, a board certified internist, testified that he examined plaintiff in his office. Plaintiff's presenting complaints were neck pain — of one week's duration — with joint stiffness in the mornings. Tuli reviewed plaintiff's medical history of cancer and heart disease. He performed a physical which revealed tenderness in plaintiff's neck and swollen fingers. Tuli considered tenderness subjective.

Tuli testified further that he performed a screening neurological examination of plaintiff's upper extremities, which consisted of testing for weakness and deep tendon reflexes. All his findings were normal. Tuli did not do a sensory examination. His examination was tailored to the plaintiff's presenting complaints, and he diagnosed plaintiff's condition as arthritis or osteoarthritis. He prescribed moist heat with medication to relieve muscle spasms. Tuli noted no psychological factors and was sure he told plaintiff to return if her condition worsened.

On cross-examination after testifying in his own behalf, Tuli stated he did not believe plaintiff had a herniated disc when he saw her. Tuli learned how to do a complete neurological examination in medical school.

Plaintiff testified she had numbness on March 8, 1977, and her pain was nagging.

MARCH 28

Plaintiff testified she saw Dr. Freesmeier, a chiropractor, because her pain was worse. She began experiencing numbness in her fingers and tingling. Freesmeier's fee was too high, so plaintiff received no treatment.

APRIL 3

Plaintiff testified that her pain was very bad and she went to Memorial's emergency room.

Dr. Kristrall Patari, board certified in family practice and board eligible in neurology, testified that he examined plaintiff in the emergency room on April 3, 1977. Plaintiff complained of pain of three weeks' duration, but he found no objective indications of neurological problems. Patari performed a screening neurological examination of plaintiff concentrating on her upper extremities because she complained of neck pain. His examination consisted of checking plaintiff visually and checking her range of neck motion and for weakness, atrophy, and strength. Patari's records indicate plaintiff had a "functional overlay" or highly emotional pain response.

Patari further testified he did a pinprick and light touch sensory examination but found no objective indications of disc pathology. Objective indications are changes in reflexes, sensation or strength. Complaints of numbness or pain are not significant, absent positive findings.

Patari diagnosed plaintiff's condition as tension headache. He prescribed tranquilizers and a muscle relaxant.

APRIL 5 (MORNING)

Dr. Milton Carlson, board certified in orthopedic surgery, testified that he examined plaintiff in his office. Plaintiff's presenting complaints were pain in her neck, shoulders and upper arms of approximately two months' duration. She did not report pain or paresthesia in the lower arms. Plaintiff reported numbness, but Carlson considered numbness subjective. Plaintiff reported that she had trouble sleeping, had been told she had arthritis, had been prescribed tranxene, and had seen a chiropractor. Plaintiff told Carlson she thought she might be depressed.

Carlson performed a screening neurological examination of plaintiff's upper extremities which showed no abnormalities. He reviewed plaintiff's records. He noted plaintiff had a "flat affect" or a nonemotional appearance which is consistent with depression. Depression can cause or alter a person's perception of pain.

Carlson further testified that since he could not determine the cause of plaintiff's pain and thought that she might be depressed, he referred her to a psychiatrist for consultation. Although he did not make a specific return appointment for plaintiff, his record said "PRN" which means return as needed. Carlson was sure he told plaintiff to return if her condition worsened and that he would see her after the consultation. He did not see plaintiff again.

On redirect, in retrospect, Carlson agreed that plaintiff had a herniated disc when he saw her.

Plaintiff testified she had no intention of seeing Carlson or a psychiatrist because she knew her pain was real. Carlson never told her to return.

APRIL 5 (EVENING)

Plaintiff testified the pain was acute and she returned to Memorial's emergency room. Dr. Stephen Allen, board certified in emergency medicine, testified he examined plaintiff in Memorial's emergency room. Plaintiff's presenting complaints were pain in the back of her neck and down her right arm. Allen conducted a screening neurological examination which resulted in no abnormal findings.

APRIL 6

Dr. Wilfred Brunswick, board certified in internal medicine, testified that he examined plaintiff in his office. Plaintiff's presenting complaints were pain in her neck, shoulders and top half of her back of approximately six weeks' duration. Plaintiff complained of numbness in her hand, two weeks before the examination. Brunswick thought it was transient numbness but did not record it as such.

Brunswick further testified that he reviewed plaintiff's records, which showed she had experienced neck and back pain before, checked her reflexes, and checked for weakness. He found a marked spasm in plaintiff's neck. Although he noted plaintiff was divorced, he attached no significance to it. He concluded plaintiff might have degenerative joint disease. He renewed her pain medication. Plaintiff did not tell him of her visit to Carlson.

Brunswick testified degenerative joint disease may cause disc herniation without trauma. Although plaintiff's symptoms may indicate disc pathology, when he saw her, she had no objective indications of disc pathology. Brunswick did not plan traction, a myelogram, or other treatment.

APRIL 7

Plaintiff returned to the emergency room and was admitted.

APRIL 8-12

Brunswick testified he next saw plaintiff in Memorial on April 8; she had been admitted as his patient the night before. Brunswick performed a neurological examination which included: checking facial strength, cranial nerves, deep tendon reflexes, strength, and checking sensation with light touch. Brunswick testified he checked plaintiff's gait, had her do a finger-to-nose test, and had her do rapidly alternating movement tests. The results were all within normal ranges.

Brunswick did not check temperature, vibration, or position sense, nor did he do a pinprick examination or check strength with a dynamometer. He had plaintiff squeeze his fingers instead. Brunswick's tests showed no objective indications of disc pathology. All his records stated was that neurological deep tendon reflexes were normal, strength grossly normal.

Brunswick further testified that nursing and physiotherapy notes indicated that plaintiff had difficulty cutting her food, had an unsteady gait and pain. Brunswick could not remember reading the notes while plaintiff was hospitalized. Although these symptoms are objective indications of disc pathology if they are related to weakness, he thought they were not in this case.

Brunswick tested and examined plaintiff several times during her hospital stay and all his results were negative. On April 12, Brunswick spoke to plaintiff in the physiotherapy room. He told plaintiff in the presence of others that her test results were negative and suggested she stay in the hospital to consult a psychiatrist. Brunswick did not remember if plaintiff reacted negatively. At that time he had no other plans for treating plaintiff.

In retrospect, Brunswick stated he agreed that a myelogram was necessary. However, he was certain that if plaintiff had a herniated or extruded disc he would have found objective indications of it with his tests.

Plaintiff testified she checked herself out of the hospital on April 12. She was upset and angry with Brunswick and felt his diagnosis was wrong. She had no intention of consulting a psychiatrist because her pain was real and not imaginary. Brunswick did not perform the neurological examination that he said he did.

MAY 3-23

Plaintiff testified she was examined and treated by Dr. Walter Sanders, a chiropractor, who was the first to do a complete neurological examination. Her condition worsened during this time. Dr. Sanders testified he examined and treated plaintiff conservatively from May 3 to May 23. He said he did not do a complete neurological examination and thought plaintiff's condition stayed the same.

JUNE 6

Plaintiff testified she was examined by Dr. Stuart Weiss, a neurologist. Weiss did a complete neurological examination and admitted plaintiff to Barnes Hospital in St. Louis. A myelogram was performed on June 8 and a laminectomy on June 9. Plaintiff improved after the laminectomy, but developed problems in August and September.

SEPTEMBER 15

Plaintiff underwent a second myelogram which revealed arachnoiditis, a weblike growth over the outer layer of the spinal cord which cuts off nerve signals.

PLAINTIFF'S EXPERTS:

Dr. Elizabeth Kessler, a board-certified neurologist, testified that the standard of care required a complete neurological examination, testing as many sensory and motor pathways to the brain as possible, when a patient presents complaints of neck pain and numbness.

Kessler testified that all defendants deviated from the standard of care by not performing a complete neurological examination of plaintiff. Additionally, Kessler testified Brunswick deviated from the standard of care by failing to: recognize the classic symptoms of disc pathology, refer to the hospital notes, consult a neurologist, order appropriate tests, or adequately make provisions for follow-up visits. A myelogram was indicated.

Kessler stated that psychiatric referral was inappropriate. Psychiatric referrals delay treatment and psychiatrists generally assume physical problems have been ruled out.

Kessler testified that there was a direct causal connection between defendants' failure to adequately diagnose and treat plaintiff's condition and her subsequent development of arachnoiditis. Plaintiff's disc had protruded against the spinal cord and by the time a myelogram was performed, a complete blockage of the spinal fluid existed. The pantopaque dye used in performing the myelogram could not be removed because of the block. The longer the dye is left in place, the more likely a person will develop arachnoiditis. Kessler stated plaintiff did not have a completely blocked spinal canal on March 8, 1977.

On cross-examination, Kessler testified that doctors evaluate the mental status of patients to see if complaints may have a psychogenic origin. Carlson's records indicate that plaintiff may have been depressed. After a consultation, the treating and consulting physician determine a course of treatment. Delay in seeking treatment between April 12 and June 6, 1977, may have aggravated plaintiff's condition.

Dr. Donald Miller, a board-certified orthopedic surgeon, testified that the standard of care required Carlson to do a complete neurological examination of plaintiff on April 5, or refer plaintiff to a neurologist. Carlson deviated from the standard of care by not doing a complete motor and sensory examination.

Miller further testified that there is a direct causal connection between retained pantopaque dye and arachnoiditis. Good practice requires removal of the dye. On cross-examination, Miller was impeached. Miller indicated Carlson was plaintiff's treating physician during her hospitalization at Memorial. Miller stated Carlson should have hospitalized plaintiff on April 5, ordered a myelogram, thermogram, Cat scan, and an electroencephalogram.

DEFENDANTS' EXPERTS:

FOR DRS. TULI AND BRUNSWICK:

Dr. Robert Chapman, board certified in psychiatry, testified that the standard of care did not demand a complete neurological examination of plaintiff. Neurological examinations are tailored to the patient's complaints. Brunswick complied with the standard of care in referring plaintiff to a psychiatrist. Psychiatrists do not automatically rule out physical ...


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