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01/19/88 Sherwin Thiele, Special v. Arcadio Ortiz

January 19, 1988





SHERWIN THIELE, Special Adm'r of the Estate of Andrew

520 N.E.2d 881, 165 Ill. App. 3d 983, 117 Ill. Dec. 530 1988.IL.30

Appeal from the Circuit Court of Cook County; the Hon. Harry Stark, Judge, presiding.


JUSTICE BILANDIC delivered the opinion of the court. STAMOS and SCARIANO, JJ., concur.


Defendant, Dr. Arcadio Ortiz, appeals from a jury verdict rendered against him in the amount of $350,000 in a wrongful death suit based upon medical malpractice. Plaintiff, Sherwin Thiele, special administrator of his deceased son's estate, brought a cross-appeal alleging that the trial court erred when it denied his motion to quash defendant's post-trial motion as untimely and challenges the jurisdiction of this court to consider defendant's appeal.

The record shows that on August 5, 1980, 18-year-old Andrew Thiele (Andrew) was involved in a car accident and suffered serious injuries. He was treated by several doctors during four hospitalizations.

Andrew was treated at St. Theresa's Hospital in Waukegan, Illinois, immediately after the accident. He remained there until August 14, 1980. On that date, he was transferred to Lake Forest Hospital, where his fractured jaw was set and his mouth and jaw were wired shut. His treating physician was Dr. David Schimel. Andrew was discharged from Lake Forest Hospital on August 26, 1980.

After his discharge, Andrew experienced difficulty breathing. He was readmitted to Lake Forest Hospital on August 31, 1980, at which time a tracheotomy was performed to enable him to breathe. Andrew's breathing difficulties continued. Additional tests were performed. After these tests, the doctors discovered that Andrew had a fractured trachea.

Dr. Agujar, a thoracic surgeon, was called in to surgically repair Andrew's fractured trachea. On September 1, 1980, Dr. Agujar told his partner, Dr. Ortiz, also a thoracic surgeon, about Andrew's condition. Dr. Agujar performed the surgery to repair Andrew's fractured trachea on September 2, 1980. The next day, Dr. Ortiz examined Andrew at the hospital.

On September 16, 1980, Dr. Ortiz performed a bronchoscopy on Andrew to check the healing process. The results showed that the hole in Andrew's windpipe had not yet healed. The following day, Dr. Ortiz examined Andrew, discharged him from the hospital, and scheduled a check-up appointment for September 21, 1980.

On September 19, 1980, however, while recuperating at home, Andrew began vomiting massive amounts of blood. That evening he was admitted to the Lake Forest Hospital emergency room. Both Dr. Schimel and Dr. Ortiz were called to the emergency room. It is undisputed that defendant was present in the emergency room at the time of Andrew's admission. Dr. Ortiz spoke with Dr. Schimel at the emergency room but did not examine Andrew.

Dr. Ortiz testified that Dr. Schimel told him that he believed Andrew had a bleeding stress ulcer. Dr. Ortiz accepted this statement, did not discuss Dr. Schimel's "suspicions" or agree with him on any specific diagnosis. He did not approach or examine Andrew, nor did he suggest that any tests be performed.

During trial, Dr. Ortiz maintained that Andrew was not his patient at that time. He testified that since Dr. Schimel was the primary physician and he thought Andrew's problem might have been a stress ulcer, "he [Schimel] probably would not need any consultant services and I left."

Andrew remained at the hospital, where he died on September 23, 1980. The evidence shows that Andrew had suffered a grand mal seizure and lapsed into a coma on September 22, 1980. The pathology report indicated that massive amounts of blood flowed into Andrew's windpipe. This led to a cardiac arrest and Andrew's death. Medical testimony at trial showed that Andrew suffered a tracheal innominate artery fistula (hereinafter TIF).

After Andrew's death, his father was appointed special administrator of his estate and brought this cause of action against Drs. Agujar and Ortiz for wrongful death based upon medical malpractice. Plaintiff alleged that Dr. Agujar failed to properly treat Andrew during the course of the surgical repair of the trachea. The jury found in favor of Dr. Agujar and against the plaintiff. Accordingly, Dr. Agujar is not involved in this appeal.

The jury also returned a verdict in favor of the plaintiff and against defendant Dr. Ortiz in the amount of $350,000. The court entered judgment, denied post-trial motions, and this appeal and cross-appeal followed.

Dr. Ortiz asserts the following on appeal: (1) the trial court erroneously denied his motion for a directed verdict; (2) the trial court erroneously excluded evidence of Andrew's psychological history; (3) the trial court erroneously allowed testimony regarding damages for loss of consortium on behalf of Andrew's mother; (4) the trial court erroneously admitted testimony of Andrew's siblings; (5) the court erroneously instructed the jury; and (6) the jury's verdict was against the manifest weight of the evidence. Plaintiff brought a cross-appeal contending that this court does not have jurisdiction because the defendant's post-trial motion was not timely. I

We will first consider plaintiff's cross-appeal because it challenges the jurisdiction of this court to consider defendant's appeal.

The judgment against the defendant was entered on April 17, 1986. Plaintiff contends that an order was entered on May 12, 1986, extending the time for the defendant to file his post-trial motion until June 16, 1986. Since the post-trial motion was filed on June 17, 1986, the trial court did not have jurisdiction to consider it. Therefore, the notice of appeal was not timely because it was based upon a defective post-trial motion. Based upon this analysis, plaintiff argues that this court does not have jurisdiction to consider defendant's appeal. We disagree.

Section 2-1202 of the Code of Civil Procedure requires that post-trial motions be filed "within 30 days after entry of judgment." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1202(c).) Thirty days after judgment would fall on May 17, 1986. Since the due date fell on a Saturday, the defendant would have until Monday, May ...

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