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01/28/88 Jeffrey Gruidl, As Special v. Milton C. Schell Et Al.

January 28, 1988

GRUIDL, DECEASED, PLAINTIFF-APPELLANT

v.

MILTON C. SCHELL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

JEFFREY GRUIDL, as Special Adm'r of the Estate of June H.

519 N.E.2d 963, 166 Ill. App. 3d 276, 116 Ill. Dec. 748 1988.IL.94

Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, Jeffrey Gruidl, as special administrator of the estate of June Gruidl, brought a medical malpractice action in the circuit court of Cook County against defendants, Drs. Milton Schell and S. A. Dimicelli. A jury returned a verdict in favor of plaintiff, awarding the estate $312,000. The jury also found, however, that decedent was 40% contributorily negligent. Consequently, the jury reduced its award by 40%, to $187,560.

Plaintiff appeals from the judgment entered on the verdict. He contends: (1) decedent had an absolute right to rely on the advice of her physicians and owed no duty to exercise reasonable care for her own safety; (2) the evidence failed to establish that decedent's contributory negligence proximately caused her injury; (3) the trial Judge erred in refusing to instruct the jury on damages for the aggravation of a pre-existing condition; (4) the jury's award for disability and disfigurement was palpably inadequate; and (5) the trial Judge erred in denying him some of his costs in bringing this action.

We affirm the judgment of the trial court.

Background

The trial adduced the following facts. On March 26, 1982, decedent, June Gruidl, visited Dr. Schell, her family physician. She complained of a small lump on the left side of her neck. Dr. Schell could see the lump. He palpated the mass, it was firm and outside of the thyroid gland. Dr. Schell ordered a thyroid scan, a T3/T4 thyroid function test, and a barium swallow. The thyroid function test and barium swallow were normal. The thyroid scan revealed, however, the possible existence of a small nonfunctional nodule or other mass exerting pressure on the left lobe of the thyroid. The right thyroid lobe appeared normal.

Dr. Schell admitted decedent to West Suburban Hospital on March 30, 1982. Plaintiff and defendants disagreed as to what happened after decedent's admission to the hospital. Plaintiff's evidence at trial was that the mass was still present in her neck and was the size of a quarter or a golf ball. On April 5, 1982, Dr. Dimicelli, a surgeon and throat specialist, examined decedent at the request of Dr. Schell.

Drs. Schell and Dimicelli both examined the mass. Dr. Dimicelli told decedent that she would have surgery the next day. Dr. Schell, however, discharged her after their examination. Dr. Schell wrote in decedent's chart that the mass had subsided and that neither he nor Dr. Dimicelli could palpate it. Dr. Dimicelli entered no findings from his examination in decedent's chart. Neither physician, however, told decedent the reason for her discharge. Dr. Schell wrote that decedent was to see Dr. Dimicelli in two weeks for further examination. Neither physician gave decedent any follow-up instructions.

Defendants' evidence at trial was essentially that the lump in decedent's neck was not pronounced when decedent was admitted to West Suburban Hospital. A nurse and a staff physician examined decedent separately after her admission to the hospital. Each found a small mass on the left side of her neck. The nurse had to search for the lump, which was difficult to feel. The hospital staff member did not consider the mass to be on or in decedent's thyroid. He found no other abnormalities in decedent's neck.

Dr. Schell examined decedent on March 31, 1982, and again on April 1, 2, and 3. During this time, decedent underwent various medical tests, with normal results. Dr. Schell contacted Dr. Dimicelli to perform a biopsy on ...


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