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Landers v. Ghosh

OPINION FILED APRIL 15, 1986.

VICKI LANDERS, WIFE AND ADMINISTRATOR OF THE ESTATE OF CHARLES LANDERS, DECEASED, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

SURIT GHOSH, DEFENDANT-APPELLANT AND CROSS-APPELLEE (JAIME INAWAT ET AL., DEFENDANTS AND CROSS-APPELLEES).



Appeal from the Circuit Court of St. Clair County; the Hon. Stephen M. Kernan, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The plaintiff, Vicki Landers, as the wife of Charles Landers, deceased, and the administrator of his estate, brought suit in negligence against Surit Ghosh, M.D., Jaime Inawat, M.D., and Centreville Hospital, a municipal corporation, hereafter referred to as Centreville, alleging the medical malpractice of each defendant. At the close of the plaintiff's case in chief, the trial court granted Centreville's motion for a directed verdict in its favor. The jury returned a verdict in favor of the plaintiff against Dr. Ghosh in the amount of $400,000 and a verdict in favor of Dr. Inawat against the plaintiff. Dr. Ghosh has appealed, and the plaintiff has cross-appealed. Dr. Ghosh presents three issues for review: (1) whether the trial court erred in directing a verdict for Centreville at the close of the plaintiff's case; (2) whether the trial court erred in refusing to admit the expert opinion of Dr. Harry Parks as to the reparability of the decedent's injuries; and (3) whether the trial court erred in refusing to allow Dr. Ghosh to reopen his case to introduce certain surgical records or, in the alternative, in allowing Dr. Inawat's counsel to comment during closing argument on the absence of such records from evidence. In her cross-appeal the plaintiff presents three issues for review: (1) whether the damages awarded to her were inadequate as a matter of law; (2) whether the trial court erred in granting a directed verdict in favor of Centreville; and (3) whether the jury verdict in favor of Dr. Inawat was against the manifest weight of the evidence.

On the day of his death, August 5, 1979, the 22-year-old decedent, a resident of Arkansas, was traveling with his wife and two-year-old son when he stopped at a filling station in Cahokia, Illinois, and, while there, was shot in the neck. He was brought to Centreville's emergency room for treatment, arriving there at 11:20 a.m., where Dr. Inawat stabilized him and at about 11:50 a.m. called Dr. Ghosh, the surgeon "on call" that day to treat such injuries. Dr. Ghosh accepted Charles Landers as a patient but was unable to proceed directly to Centreville because he was about to perform surgery at St. Elizabeth's Hospital in Granite City. The evidence was much disputed as to whether Dr. Ghosh had apprised Dr. Inawat that he was about to perform surgery at St. Elizabeth's Hospital. Dr. Ghosh maintained that he had done so or had told the emergency room nurse of this fact, whereas Dr. Inawat maintained that Dr. Ghosh had not but had merely indicated that he would be "tied up" there. Dr. Inawat testified that he had anticipated Dr. Ghosh's arrival at Centreville in about half an hour. Nursing personnel testified that they had known that Dr. Ghosh was "tied up" but had not known what he was doing. Dr. Ghosh ordered Charles Landers admitted to Centreville's intensive care unit, where the patient arrived at about 12:15 p.m. At about 1:30 p.m. Dr. Ghosh called Centreville and spoke with a nurse, Ella Ross, in the intensive care unit concerning Charles Landers' condition. She told him what the patient's vital signs were and advised him that the right side of his neck was edematous, or swollen, that he had been coughing up blood clots, as he had done in the emergency room, that his condition appeared to be stable, and that he was having no problem with respiration. Dr. Ghosh stated that he would be there shortly and arrived at Centreville at approximately 2:45 p.m. Upon examining the patient he observed signs of developing respiratory distress, whereupon he performed a tracheotomy on the patient in the intensive care unit at about 3:15 p.m. The evidence was disputed as to whether Dr. Ghosh completed the tracheotomy. Either during the procedure or shortly after it was completed, Charles Landers began hemorrhaging and expired despite efforts to save his life. Autopsy revealed that the bullet had severed his right carotid artery and right jugular vein and had damaged the wall of the hypopharynx. Having reviewed the report of the pathologist, Dr. Parks, the plaintiff's expert, Dr. Raymond Keltner, testified that all of the decedent's wounds had been reparable, whereas Dr. Wallas Berkowitz testified for Dr. Ghosh that the patient's injuries were not reparable. Dr. Keltner testified to the inappropriateness of a tracheotomy prior to surgery, as opposed to endotracheal intubation, in the case of a penetrating neck wound, whereas Dr. Berkowitz and Dr. Lloyd Thompson, also called by Dr. Ghosh, testified to the appropriateness of tracheotomy rather than endotracheal intubation in such cases. Believing that tracheotomy was the proper procedure to be performed and that necessary coughing on the part of the patient during the procedure had dislodged a clot over the transected vessels whereupon hemorrhage had ensued, Dr. Thompson, unlike Dr. Keltner, believed that the patient would not have lived had no delay in surgical treatment of the patient occurred since the blood vessels involved were major ones and had been completely transected by the bullet. Inasmuch as Dr. Berkowitz believed that the patient's injuries were not reparable, like Dr. Thompson, he was of the opinion that delay in the surgical treatment of Charles Landers had not been a cause of his demise.

With respect to the first issue Dr. Ghosh raises, whether the trial court erred in directing a verdict for Centreville at the close of plaintiff's case in chief, he argues in reliance upon dictum in Bothun v. Wallace (1978), 61 Ill. App.3d 365, 377 N.E.2d 1054, that

"[u]pon a motion for a directed verdict in a multidefendant case, if the trial court believes that a verdict should be directed in favor of fewer than all defendants, the court always has a choice. It can direct a verdict for the one defendant, or it can wait until after the jury returns and grant a judgment n.o.v. if the jury returns a verdict against that defendant. This discretion should be exercised with great care and only such that it will not result in prejudice to the remaining defendants."

In Bothun the court commented:

"The second issue raised by the defendant is whether the trial court erred by denying his motion for a mistrial after his co-defendant was directed out of the suit at the close of the plaintiff's evidence. Although we need not now decide this issue, we believe the better procedure in the trial court would be to avoid any possible prejudice to the defendant by reserving its ruling on the directed verdict until after the jury returns its verdict and then granting a judgment n.o.v. to the appropriate defendant. Otherwise, a jury, having observed two defendants during part of the trial and observing that only one defendant remains, could infer that, were the remaining defendant not liable, the trial judge would also have released him. It is irrelevant whether the directed verdict in favor of the other defendant is proper or improper for the prejudice to the remaining defendant exists in either case. The action of the trial court here may have resulted in prejudice to this defendant, but any prejudice which may result from this type of action by the trial court could, and should, be avoided in the future." (61 Ill. App.3d 365, 367-68, 377 N.E.2d 1054, 1055-56.)

Dr. Ghosh maintains that the court's directing a verdict for Centreville unfairly prejudiced him, arguing that the record supported a verdict against Centreville and that the directed verdict for Centreville was "tantamount to directing a verdict against Dr. Ghosh" if the jury believed that the delay in the performance of surgery upon Charles Landers was in part a cause of his death.

• 1 On the basis principally of Tisoncik v. Szczepankiewicz (1983), 113 Ill. App.3d 240, 446 N.E.2d 1271, and Laue v. Leifheit (1984), 105 Ill.2d 191, 473 N.E.2d 939, the plaintiff responds, we think correctly, that Dr. Ghosh lacks standing to challenge the directed verdict against Centreville. In Tisoncik the plaintiff had brought a personal injury action against the owner-lessor, the lessee, and the driver of a truck that collided with the plaintiff's car. At the close of the evidence the owner-lessor was granted a directed verdict in its favor, and the driver was dismissed at the plaintiff's request. The jury awarded damages against the lessee, who was the only defendant remaining. The lessee appealed from the verdict against it and the dismissal of the co-defendants, arguing that the potential res judicata effect of the owner-lessor's dismissal on a possible contribution action by the lessee against the owner-lessor gave the lessee standing to appeal, despite the general rule in Illinois that the only party who may appeal from a directed verdict in favor of a co-defendant is the plaintiff (Montgomery v. Terminal R.R. Association (1979), 73 Ill. App.3d 650, 392 N.E.2d 77; Schachtrup v. Hensel (1938), 295 Ill. App. 303, 14 N.E.2d 897). The court in Tisoncik held that because the lessee had not asserted a counterclaim for contribution in the pending action in the trial court, as provided by section 5 of "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1981, ch. 70, par. 305) (hereafter referred to as the Contribution Act), it lacked standing to appeal the dismissal of its co-defendants. Section 5 of the Contribution Act provided then, as it does now (Ill. Rev. Stat. 1985, ch. 70, par 305), that "[a] cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action." The court interpreted section 5 as providing that when there is a pending action initiated by the injured party, a contribution claim should be asserted by counterclaim or by third-party claim in the pending action. In Laue the Supreme Court of Illinois subsequently interpreted section 5 of the Contribution Act as did the court in Tisoncik. The record shows that Dr. Ghosh asserted no claim of any kind against Centreville in this litigation. Since the only party who may appeal from a judgment entered in a directed verdict in favor of a co-defendant is the plaintiff and Dr. Ghosh did not litigate a claim of contribution, for example, or any other claim against Centreville in the trial court, he lacks standing to appeal the directed verdict against his co-defendant Centreville. Inasmuch as the plaintiff has cross-appealed raising the question of whether the trial court erred in granting a directed verdict for Centreville, we consider that issue below. However, in view of Dr. Ghosh's lack of standing to appeal the directed verdict against his co-defendant, we do not consider whether it was error for the trial court to have granted the directed verdict for Centreville when it did.

• 2, 3 Concerning the second issue Dr. Ghosh raises, whether the trial court erred in refusing to admit the expert opinion of the pathologist, Dr. Parks, as to the reparability of the decedent's injuries, the record shows that in a letter dated August 14, 1981, Dr. Parks, who had performed the autopsy on the deceased, described the path of the bullet and the damage it had caused. In the letter he stated further:

"I might add that an injury of this magnitude in this part of the neck which is richly supplied with large blood vessels as you can see from the diagram [attached] would pose an almost insurmountable, if not impossible, surgical problem because of hemorrhage and shock and obstruction of the airway with blood leading to cerebral hypoxia."

Apparently because of a subsequent statement, not included in the record, made by Dr. Parks in a discovery deposition to the effect that he was not qualified to testify regarding the reparability of Charles Landers' injuries, the plaintiff objected to testimony by him at trial on that subject. Since counsel disagreed on the matter of Dr. Parks' qualifications to testify on the reparability of the decedent's wounds, the trial court interjected by saying, "Let me suggest — this may be the best way to resolve all of that, just to have a little incamera [sic] examination on whether or not he thinks he is qualified to." The court added, "Then he can say whether or not he feels he is qualified. If he says he is, well he is and if he feels he is not, then he is not," and explained, "For him to be able to testify I think as an expert on an opinion on a matter such as this I think he would have to be an expert and if he doesn't feel he is an expert then it is no different if the guy would have survived the operation from a layman."

Dr. Parks was examined in camera as follows:

"MR. GOMRIC [counsel for plaintiff]: * * * [D]octor, in your deposition we were asking you about the extent of the reparability of injury, if you recall, and if you were asked those questions today about the extent of reparability, whether or not the artery or the vein or the trachea could have been repaired, would your answer be that you feel capable of ...


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