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Curry v. Summer





Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.


As administrator of the estate of Elmer Curry, Delores Curry brought this wrongful death action against the defendants, Jay Summer, Gerald Snyder, and Allen Bilyeu, for alleged medical malpractice. A jury returned a verdict in favor of all the defendants. The plaintiff appeals, contending: (1) The trial court erred in instructing the jury on proximate cause; (2) the trial court erred in refusing her instruction under section 323(a) of the Restatement of Torts (Restatement (Second) of Torts sec. 323(a) (1965)); (3) the trial court abused its discretion in allowing a nondisclosed witness to testify; (4) an improper closing argument by defendant Snyder requires reversal; and (5) the jury's verdict was against the manifest weight of the evidence.

On September 17, 1981, the decedent, Elmer Curry, complained of a cough and difficulty breathing. The Curry family contacted their doctor, Allen Bilyeu, a family practitioner. Bilyeu told them to bring the decedent to his office or to the emergency room. The family brought the decedent to St. Mary's Hospital at 10:50 p.m. Dr. Gerald Snyder was the physician on duty. A nurse took a brief history of the patient, which indicated that the decedent had diabetes. The decedent had a rapid pulse rate, a slight temperature, and an elevated respiration rate. Snyder ordered a chest X ray and a blood-sugar analysis. From the X ray Snyder diagnosed the decedent as having pneumonia. The next day, a radiologist interpreted the X rays as showing either pneumonia or pulmonary edema. Snyder never saw the radiologist's report. Snyder prescribed penicillin and sent the decedent home. The decedent coughed all night and could not lay down. The next day, the Curry family again called Bilyeu and was told to bring the decedent to the hospital. They did so at 9:17 p.m. The decedent's condition had not improved; rather, it had deteriorated. Snyder contacted Bilyeu to have the decedent admitted to the hospital. Snyder ordered another chest X ray and several routine admitting tests but did not order an electrocardiagram (EKG). After the decedent was admitted, Snyder ordered oxygen for him.

Bilyeu examined the decedent at 7 a.m. on September 19. He knew the decedent was a diabetic. He received the X rays, took a complete history and made a physical examination. The radiologist report stated the X rays probably represented pneumonia although pulmonary edema could not be ruled out. Bilyeu discovered no positive findings which would have indicated a cardiac problem. The patient did not complain of any chest pains. Bilyeu suspected the patient had pneumonia.

Bilyeu called in Dr. Jay Summer, a pulmonary specialist, as a consultant. Summer examined the decedent between 11 and 11:30 a.m. Summer testified he suspected the patient had a history of cardiac problems, but he did not think the patient had an active problem because the patient showed no current symptoms. The patient denied waking up at night short of breath, a specific sign of heart failure. He was also coughing up "yellow thick blood streaked sputum" which was consistent with pneumonia. Summer found no physical signs consistent with congestive heart failure. The patient denied having any chest pains although he had a year's history of exertional chest pain. Summer concluded the patient had pneumonia rather than a cardiac problem. At 3 p.m., Summer ordered the concentration of oxygen that the patient was receiving be increased. Summer also ordered other treatment consistent with his diagnosis.

Later in the evening, nurses called Summer and told him that the patient was getting worse. Summer requested them to transfer the patient to intensive care. He also contacted Bilyeu. Summer arrived at the hospital as the patient was being transferred. Shortly after the patient arrived in the intensive care unit, he went into respiratory arrest. Summer tried to resuscitate the patient for 35 minutes. Bilyeu arrived, but the patient died at 9:08 p.m.

Snyder knew that diabetics could have silent or painless heart attacks. Snyder did not feel that he had deviated from the customary standard of care. He stated that if a physician suspected a cardiac problem, it would be a deviation from the normal standard of care not to order an EKG. Snyder, however, did not suspect a cardiac problem and, therefore, did not believe an EKG was necessary. He admitted the decedent's symptoms could be consistent with congestive heart failure. He had no opinion on whether the decedent would have survived if the heart condition had been correctly diagnosed.

Bilyeu also knew diabetics had a high risk of heart problems and silent heart attacks. He testified that if a cardiac problem is suspected, then an EKG is a standard test to be performed. An EKG is 80% accurate in revealing myocardial damage. Bilyeu testified the standard treatment for a cardiac problem had not been followed. He also testified the decedent's symptoms could be consistent with heart failure as well as pneumonia. He did not believe he deviated from the standard of care. He also believed that the patient's condition was nonsurvivable even if a correct diagnosis had been made because of the extent of damage to the heart. Summer had no opinion as to whether the attack would have been survivable with prompt diagnosis and correct treatment. He testified that he did not deviate from the normal standard of care.

Alan Fischer, a board certified family practitioner, testified as an expert witness for the plaintiff. He believed Snyder, Bilyeu, and Summer all deviated from the ordinary standard of care by not performing an EKG. Fischer believed that while some of the treatment ordered by Snyder was appropriate for a cardiac patient, other treatment could have been harmful. Fischer felt that the patient should have been given a higher concentration of oxygen immediately.

Pulmonary edema refers to fluid from blood vessels filling the lungs. Generally, it is a manifestation of pump failure. Fischer testified the underlying problem with the heart is severe but not necessarily fatal. Pump failure is caused by myocardial infarctions. A myocardial infarction is a death of heart muscle, which is then replaced by scar tissue. Fischer testified the cause of death was a cardiac arrythmia, an irregular heartbeat. He testified an arrythmia could be a separate problem from pump failure, but the decedent's arrythmia was consistent with pump failure. Fischer believed the patient had a very good chance of surviving if his condition had been correctly diagnosed and properly treated. While the patient could have survived for many years, Fischer conceded the patient may have died anyway. He declined to say whether it was probable or reasonably likely that the patient would have survived with proper treatment.

Grant Johnson, a pathologist, testified on behalf of Bilyeu and Summer. He reviewed the autopsy reports and tissue slides. He testified that death was due to a myocardial infarction. He observed infarcts of varying ages. The infarcts began 7 to 10 days before death. These infarcts were fairly extensive. Lesser areas of the heart showed infarcts some of which were between 12 and 24 hours old, and others 24 to 72 hours old. There was also a scar, indicating an infarction older than a month. Johnson had no opinion as to whether the patient's condition had become irreversible at any time prior to death.

Richard Herndon, a board certified specialist in internal medicine, also testified on behalf of Bilyeu and Summer. Herndon believed all three defendants deviated from the ordinary standard of care by not ordering an EKG. Herndon believed a correct diagnosis on September 17, however, would not have changed the outcome. Herndon testified the later infarcts were simply aftershocks of the original attack, which had occurred 7 to 10 days before death. He testified that while there are successful methods for treating arrythmias, there are no successful methods for treating pump failure caused by myocardial infarction. Over 80% of patients with pump failure die before they can be discharged from the hospital. Those who do not leave the hospital live less than one year, are physically handicapped, and are unable to care for themselves. Herndon testified that none of the treatment given to the patient had an adverse effect and some of it would have been beneficial to a cardiac patient.

Bill Smiley, a retired emergency room physician, testified on behalf of Snyder. Smiley testified Snyder met the ordinary standard of care in diagnosing and treating the patient. Smiley did not believe the September 19 attack was survivable, but he did not think the damage was irreversible on September 18.

Howard Penning, a pathologist, did the autopsy on the decedent. He testified over the plaintiff's objection. Penning discovered a "massive" myocardial infarction. He estimated 50% to 75% of the heart had been damaged. He also found occlusions of both the right and left coronary arteries. He testified the cause of death was the massive myocardial infarction. Penning did not observe any pneumonia. The trial court did not allow Penning to testify on the issue of survivability.

After final argument, the court instructed the jury but failed to read the proximate cause instruction along with another instruction. The court recalled the jury and read these instructions. After deliberating, the jury returned a verdict in favor of all the defendants.

• 1, 2 The plaintiff first asserts the trial court erred in giving the defendant's instruction on proximate cause rather than hers. The plaintiff tendered the long version of Illinois Pattern ...

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