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11/18/87 Ramona Pumala, v. Stephen Sipos

November 18, 1987





517 N.E.2d 295, 163 Ill. App. 3d 1093, 115 Ill. Dec. 93 1987.IL.1700

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.


JUSTICE DUNN delivered the opinion of the court. WOODWARD and HOPF, JJ., concur.


Plaintiff, Ramona Pumala, appeals from the trial court's order which granted the motion for a directed verdict by defendant, Dr. Stephen Sipos, who died prior to the commencement of trial. Plaintiff brought a medical malpractice action against the defendant alleging that his failure to refer her to an orthopedic specialist in a timely manner resulted in the amputation of her right leg. On appeal, plaintiff contends that the trial court erroneously granted a directed verdict where she presented a prima facie case against the defendant for malpractice and the trial court improperly prevented her expert from rendering his opinion at trial regarding defendant's deviation from the standard of care and the proximate cause of the amputation.

Plaintiff originally filed an appeal with this court concerning the issue of whether the statute of limitations had expired. The trial court had granted defendant's motion to dismiss on this basis. We reversed and remanded the cause for further proceedings in Pumala v. Sipos (1985), 131 Ill. App. 3d 845, 476 N.E.2d 462.

The relevant facts adduced at trial reveal that defendant was plaintiff's family physician and had last treated her on June 19, 1978. In 1973, defendant first noticed a lump near the plaintiff's right knee. Defendant diagnosed the condition as benign osteochondroma, a bone tumor, based on the results of a biopsy and X rays. After experiencing continuing problems with her leg, in 1975 plaintiff underwent surgery to remove a calcium deposit and torn cartilage from her knee under the direction of the defendant and an orthopedic surgeon. Based on additional X rays and a biopsy, defendant again diagnosed the condition as benign osteochondroma.

Plaintiff testified that after knee surgery she continued to experience pain, swelling, and trouble moving the knee. While hospitalized for unrelated chest pain, plaintiff complained to defendant regarding her knee problem. Plaintiff also sought treatment for a rash in June 1978, at which time she reported to defendant that she had pain and difficulty with her knee. Defendant opined that a calcium deposit had grown back and would need to be removed. Plaintiff testified that between 1978 and 1981, she had telephoned defendant on four occasions because "the leg was still hurting, it was still growing. I was still having the limping problem, a lot of pain, [and] swelling." Plaintiff was precluded from testifying regarding the substance of the conversations with the defendant due to the Dead Man's Act (Ill. Rev. Stat. 1985, ch. 110, par. 8-201).

In 1981, defendant referred plaintiff to Dr. Gerard Goshgarian, an orthopedic surgeon. Dr. Goshgarian testified that in the six months preceding his evaluation of plaintiff, her condition had "really changed for the worse." From the clinical examination and X rays, Dr. Goshgarian determined that plaintiff had a serious problem and referred her to the Mayo Clinic.

Dr. Thomas Shives, at the Mayo Clinic, examined plaintiff on August 12, 1981. Testing revealed that plaintiff had high grade osteosarcoma, a malignant bone tumor. After reviewing X rays taken in 1975, Dr. Shives indicated that plaintiff actually had osteosarcoma at that time. Plaintiff's attorney did not inquire whether defendant's misdiagnosis breached the standard of care at the time. Dr. Shives further stated that he performed an amputation about eight centimeters above the highest extent of the tumor on the right thigh above the knee. When asked if a less radical surgery could have been performed in 1977 that did not involve amputation, Dr. Shives responded, "It's possible." On cross-examination, Dr. Shives indicated that he could not testify to a reasonable degree of medical certainty whether limb salvage could have been performed. Dr. Shives reported that he did not have all the factors to express an opinion.

Dr. Emerson Day, plaintiff's medical expert, testified that between 1973 and 1981, the medical records revealed that plaintiff had a growth in the right knee area which was diagnosed as osteochondroma. The accepted medical practice for treatment of osteochondroma was "supportive care when needed and otherwise leave it alone." Prior to 1978, the record did not demonstrate any deviation from the applicable standard of care. Dr. Day did not testify that clinical testing revealed osteosarcoma and that defendant misdiagnosed the problem. Instead, plaintiff attempted to elicit testimony from Dr. Day that from 1978 until 1981 defendant should have referred plaintiff to a specialist and that his failure resulted in an amputation. Dr. Day could not render his opinion regarding defendant's care of plaintiff from 1978 on because no record of treatment existed. The substance of plaintiff's telephone conversations with the defendant was not in evidence.

Plaintiff's attorney persisted in his attempts to elicit evidence regarding the standard of care from Dr. Day over defendant's objections. Plaintiff's attorney was permitted to ask, "Does the family practitioner in 1979, 1980, who has been treating a patient with an osteosarcoma which continues to grow even after the patient has reached skeletal maturity, does that family practitioner have a responsibility under the applicable standard of care to see that patient or refer that patient for medical attention?" Dr. Day answered, "Yes, he does." Further hypotheticals were excluded, however, on the basis that they assumed facts not in evidence.

Regarding the issue of proximate cause, Dr. Day was asked at what point the cancer would have had to be diagnosed so that the leg would not have ...

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