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06/24/87 Beverly Piano Et Al., v. William C. Davison Et Al.

June 24, 1987





510 N.E.2d 1066, 157 Ill. App. 3d 649, 110 Ill. Dec. 35 1987.IL.877

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Cawley, Judge, presiding.


PRESIDING JUSTICE McNAMARA delivered the opinion of the court. WHITE and FREEMAN, JJ., concur.


Plaintiff Beverly Piano brought this medical malpractice action against defendants, Drs. William C. Davison and James J. Duffy, alleging negligent diagnosis and negligent surgical treatment. Beverly's husband, plaintiff George Piano, sought damages for loss of consortium against both doctors. A jury returned verdicts for defendants, and the trial court entered judgment on the verdicts. Plaintiffs appeal, contending that the trial court erred in not entering a judgment notwithstanding the verdicts; that a guardian ad litem should have been appointed for Beverly; and that numerous reversible errors occurred in connection with the testimony of expert medical witnesses.

The medical records and testimony revealed the following sequence of events. In June 1981, plaintiff saw Dr. Benjamin Lichtenstein, a neurologist, complaining of dizziness. In December 1981, plaintiff saw Dr. Davison, a neurologist, complaining of dizziness, depression, nausea, loss of balance, and blurred vision. On January 5, 1982, plaintiff was admitted to the hospital from the emergency room with complaints of dizziness and loss of memory. Patricia Capraro, a friend of Beverly's, and Leonora Piano Reinecke, plaintiffs' daughter, testified that they found nothing unusual about Beverly's appearance, gait or conversation on January 5, 1982. Leonard Boltz, a cousin of Beverly's, took her to the hospital on January 5 because she repeatedly exhibited confusion that morning. Beverly could walk unassisted. George Piano testified that before the hospitalization Beverly experienced dizziness, but he noticed nothing unusual about her mental condition.

A January 6, 1982, progress note written by Dr. Davison stated that the patient "shows severe hydrocephalus -- Arnold-Chiari? obstruction?" A second January 6 note by Dr. Davison stated "communicating hydrocephalus, question -- could this be normal pressure hydrocephalus." A cisternogram and spinal fluid examination were scheduled. A January 6 notation in the medical chart stated that plaintiff was confused, forgetful, exhibited an uneven gait and appeared disturbed and agitated. A January 6 CT scan showed a "striking massive dilatation of the fourth ventricle."

A January 7 notation stated that plaintiff "forgets quickly recent events," and was confused. On the same day, Dr. Duffy dictated and signed a typewritten progress report, which was also signed by George. The report stated that Beverly "has normal pressure hydrocephalus, is ataxic and extremely demented. . . . Mrs. Piano has to be considered incompetent. I tried to explain to her; she does not really grasp what she is being told." Dr. Duffy recommended a shunt operation.

On January 8, 1982, at 1 a.m., the attending nurse found plaintiff on the bathroom floor with a head laceration. Plaintiff's gait was very poor, and she was upset. Later that day, Beverly underwent a surgical operation placing a shunt, or drain, within her brain in order to drain excessive fluid. On February 28, 1982, plaintiff was discharged from the hospital.

In regard to plaintiff's post-surgical condition, George Piano, Boltz, Capraro and Reinecke testified that Beverly was confused and unable to answer many questions. She was bedridden, unsure of where she was, agitated, experienced urinary incontinence, and often did not recognize friends or family members. She was partially paralyzed on the left side.

On July 10, 1982, Dr. Davison examined plaintiff and found she had "improved since her discharge." She still experienced cognitive problems and some paralysis on the left side. She could walk with a cane. The report stated that "the etiology of the hydrocephalus was never adequately established. She had a very large fourth ventricle, and it was felt that an obstructive process . . . was a possibility."

Dr. Kenneth Pierini testified for plaintiffs that he began treating Beverly in early 1983 when she was hospitalized. "She supposedly had some seizure witnessed in the emergency room . . .." Dr. Pierini testified that in treating plaintiff he relied on the report of Dr. Bauer, a neurosurgeon whom he had asked to examine plaintiff and determine the cause for the alleged seizure. Dr. Bauer stated in the report that the shunt was operating correctly. "[Whatever] this woman had, be it seizure or not, was not related to the shunt in any way." Dr. Bauer concluded, "The etiology of her seizure disorder is not clear to me, at present, but perhaps could be related to virtually any trauma or manipulation of the brain, including a shunt; although, this would be quite rare."

The medical evidence included testimony offered by plaintiffs' medical experts: Dr. Bernard Sussman, a neurosurgeon; and Dr. Benjamin Lichtenstein, a neurologist and Beverly's treating physician from June 1981 to September 1981. Defendant Dr. Duffy, a neurosurgeon, testified on his own behalf, along with his expert witness, Dr. Charles D'Angelo, a neurosurgeon. Defendant Dr. Davison, a neurologist and plaintiff's treating physician from December 1981 through July 1982, testified on his own behalf along with his expert witness, Dr. David McLone, a neurosurgeon.

The record reveals that the voluminous medical evidence in this action broke down into two major issues: negligence in making a preoperative diagnosis, and negligence in performing the surgery.

As to the negligent diagnosis issue, plaintiffs attempted to prove that prior to surgery defendants conclusively and incorrectly diagnosed normal pressure hydrocephalus , when the correct diagnosis was probably obstructive hydrocephalus. Plaintiffs maintained that the best surgical treatment for Beverly's hydrocephalus is exploration of the posterior fossa in the brain, and not a shunt procedure. The correct diagnosis could have been determined by performing certain diagnostic tests prior to surgery. The absence of certain classic symptoms should have indicated to defendants that Beverly did not suffer from NPH. Plaintiffs further urge that defendants negligently and erroneously portrayed Beverly's condition as being critical and requiring immediate surgery.

In regard to the allegedly negligent surgical treatment, plaintiffs attempted to prove that during surgery, Dr. Duffy negligently placed the burr hole in the skull and negligently inserted an excessive amount of tubing into the brain, thus damaging a vital area, which resulted in Beverly's partial paralysis. Furthermore, plaintiffs argued that the shunt did not operate properly for several weeks, by which time considerable permanent damage had occurred.

In regard to whether a definitive diagnosis of NPH was made prior to surgery, Dr. Sussman testified for plaintiffs that the definitive diagnosis of NPH was repeatedly indicated on hospital progress notes, surgical reports and the discharge sheet. Dr. Sussman also testified, however, that a preoperative note written by Dr. Davison, listing several possible diagnoses, was only "a consideration, I would say, of three possibilities, which is what a differential [diagnosis] is."

Dr. Lichtenstein testified for plaintiffs that the records showed that prior to surgery there was "contemplation" that the problem could be NPH. It was merely a diagnosis "to be considered," along with other possibilities, including obstructive hydrocephalus. Drs. Davison and Duffy agreed.

In regard to whether it was negligent for defendants to even consider diagnoses of NPH or Arnold-Chiari, Dr. Sussman testified for plaintiffs that a reasonably prudent surgeon in Cook County would not make these diagnoses. Arnold-Chiari is a condition which affects infants and in which the fourth ventricle is either not seen or markedly reduced in size. Dr. Sussman agreed that "under extremely rare circumstances" Arnold-Chiari is seen in adults, but that even then the fourth ventricle would not be enlarged.

Dr. Davison testified that Arnold-Chiari is a pathological condition which can cause obstructive hydrocephalus. Of the four types of Arnold-Chiari, one type can be associated with adults, but 90% of the cases are associated with infants.

Dr. Sussman testified further that there was no evidence in the record to support a diagnosis of NPH. Such a diagnosis depends upon the presence of a clinical triad of incontinence, gait disorder and impairment of mental function.

In regard to the classic triad of symptoms of NPH, Dr. Davison testified that in 1982, the neurologic literature suggested that a diagnosis should be made as soon as possible. "By the time you reach the triad usually shunting has less chance of working." The three classic symptoms are late signs of NPH. Drs. D'Angelo and McLone testified similarly.

Dr. Sussman testified further that NPH should not have been considered because the ventricles had not increased in size during the six months prior to surgery. From the June 1981 and January 1982 CT scans, Dr. Sussman selected certain pictures which portrayed various "slices" of Beverly's brain to demonstrate there was "not any real change in the size of the ventricles between the two studies." The neuroradiologists' report differed. The June 1981 report stated there was a moderate degree of dilatation of the fourth ventricle. The January 1982 report found a "striking massive dilatation of the fourth ventricle." Dr. Sussman found the latter to be a fair statement and believed that it was more accurate than the earlier report.

In regard to documentation of increased intracranial pressure and the size of the ventricles, Dr. Davison compared the two CT scans and found the ventricles had become "greatly enlarged" by January 1982. This enlargement indicated an increase of pressure within the brain. Dr. Sussman's selection of pictures from the June 1981 CT scan could not be compared with the January 1982 scan because it was necessary to compare the complete scans, not just a few pictures, and because the pictures chosen by Dr. Sussman did not even show the fourth ventricle. Drs. McLone and D'Angelo agreed. Dr. McLone testified that no qualified neurosurgeon would review a CT scan based on two cuts. In addition, Dr. McLone testified that the transcellular fluid in the edema surrounding the ventricular system indicated pressure. A reasonably well-trained and well-qualified neurosurgeon who has had a significant number of hydrocephalus cases should be able to make a determination as to whether there was progression shown in the two scans.

Concerning the preoperative tests required to determine whether NPH was an accurate diagnosis, Dr. Sussman testified that a reasonably competent surgeon would not operate with a diagnosis of NPH based upon the preoperative diagnostic work performed on Beverly. In order to make a diagnosis, a spinal tap or cisternogram must be done to measure the pressure and to determine whether there is a reversal of flow in the system. Dr. Sussman testified that it was safe to do a spinal tap.

Dr. Lichtenstein testified for plaintiffs that, because a cisternogram requires 24 to 36 hours, "if the patient was critical, it would be stupid to do a cisternogram." Dr. Lichtenstein testified that where obstructive hydrocephalus is suspected, you do not do a spinal puncture first, because it could kill the patient. Similarly, Dr. Davison testified that these tests both involved a spinal puncture. If he took the pressure from below the brain stem, the brain "could herniate or move through the base of the skull," and the patient would die. Drs. D'Angelo and McLone testified similarly. Dr. D'Angelo also testified that the preoperative work-up complied with the accepted standard of care by neurologists and neurosurgeons treating this condition.

Concerning the proper surgical treatment for Beverly's condition, Dr. Sussman testified for plaintiffs that the first surgical choice should have been a posterior fossa exploration. A shunt procedure, however, was an acceptable operation for an obstructive hydrocephalus. He disagreed with the other medical witnesses in regard to whether Beverly's clinical condition had deteriorated to the point that she needed an emergency shunt. The basis of his opinion was the fact that he believed Beverly's condition had not changed significantly over a period of six months. Moreover, even if there were evidence of increased intracranial pressure, certain ...

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