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02/10/88 Leroy Atkins Et Al., v. Apedi

February 10, 1988





519 N.E.2d 1073, 166 Ill. App. 3d 471, 116 Ill. Dec. 858 1988.IL.166

Appeal from the Circuit Court of Cook County; the Hon. Robert G. Mackey, Judge, presiding.


JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.


Plaintiff Leroy Atkins filed a medical malpractice action against defendant Dr. Isaac Thapedi, alleging that he failed to accurately diagnose Leroy's back condition. Plaintiff's wife, Annie Atkins, filed a claim for loss of consortium. The jury returned a verdict in favor of defendant, and the trial court entered judgment on the verdict. Plaintiffs appeal, contending that the testimony of one of plaintiff's subsequent treating physicians was improper. Plaintiffs also contend that certain references to insurance were prejudicial.

On April 15, 1981, plaintiff injured his back at work. He received treatment at a clinic, but in August 1981, plaintiff reinjured his back. Plaintiff's family physician hospitalized him for tests, bed rest, pain medication, traction and physical therapy. In late August 1981, plaintiff was referred to a general surgeon and was again admitted to the hospital.

On September 2, 1981, defendant, a neurosurgeon, first examined plaintiff at the request of the general surgeon. Defendant ordered several tests, including a myelogram. Defendant diagnosed spinal stenosis, a condition which results in the narrowing of the spine and which can cause severe pain by catching the nerve roots. Defendant also diagnosed a bulging disc at L5 -- S1. Surgery for the spinal stenosis was complicated and exposed the patient to high risks. Thus, defendant treated plaintiff conservatively for a few weeks, when defendant became concerned about plaintiff's dependence on narcotic pain medications, and the effect of the chronic, severe pain on plaintiff's personality. Defendant recommended surgery, but only on the bulging disc, and not for the stenosis.

Defendant informed plaintiff that if the pain was attributable to the spinal stenosis, removing disc material from L5 -- S1 might not relieve his pain. On September 28, 1981, defendant operated on plaintiff and saw a bulge which put pressure on the nerve root. He removed the disc material and relieved the pressure. After some improvement, plaintiff was discharged on October 9, 1981. Plaintiff saw defendant on a monthly basis, with varying reports of the amount of pain he experienced.

Defendant again admitted plaintiff to the hospital for tests in February 1982 due to his increased pain. Tests confirmed defendant's original diagnosis of spinal stenosis. Defendant again recommended conservative therapy rather than surgery and discharged plaintiff. On March 3, 1982, plaintiff informed defendant that he wished to proceed with the surgery. On March 29, 1982, defendant performed the surgery and observed considerable stenosis at the L4 -- L5 junction. The narrowing of plaintiff's spinal canal was quite pronounced, resembling an hourglass. Defendant lessened the narrowing with a bilateral laminectomy at L4 -- L5, thus freeing the compressed nerve roots at that level. Plaintiff was subsequently discharged after a normal post-operative recovery. Plaintiff continued to see defendant for several months, and defendant treated him with pain medication and physical therapy. Defendant informed plaintiff that further surgery would not reduce his pain. Plaintiff last saw defendant on October 5, 1982. On October 15, 1982, plaintiff filed this suit.

In November 1982, plaintiff's attorney referred him to Dr. Mitchell Sheinkop, an orthopedic surgeon. Plaintiff was admitted to the hospital for several weeks of tests in January 1983. Plaintiff was placed on a rehabilitation program and continued to be treated by Dr. Sheinkop until September 1984.

Prior to trial, the trial court entered an order limiting each side to one expert witness. At trial, Dr. Bernard Sussman testified by way of a videotaped evidence deposition as an expert for plaintiffs. Dr. Sussman testified that defendant deviated from the standard of care by failing to diagnose and treat the herniated discs which still exist in plaintiff. Dr. Sussman testified further that other doctors also diagnosed herniated discs.

Dr. Sheinkop testified on behalf of defendant. The trial court granted plaintiffs' motion to bar the testimony of other treating doctors based on the physician-patient privilege. (Ill. Rev. Stat. 1985, ch. 110, par. 8-802.) Plaintiffs expressly waived any claim of privilege as to Dr. Sheinkop.

Dr. George Dohrmann, a neurosurgeon, testified as an expert for defendant. Dr. Dohrmann opined that defendant's diagnosis and treatment were medically correct and met the requisite standard of care for neurosurgeons. Dr. Dohrmann diagnosed spinal stenosis with a narrowing of the spinal cord. Defendant properly removed all impingement of nerve roots outside the spinal canal and did all that was surgically possible to alleviate plaintiff's pain. Dr. Dohrmann agreed that further surgery would be of no benefit to plaintiff. He saw no evidence that plaintiff presently suffered from two undiagnosed herniated discs. Dr. Dohrmann testified further that plaintiff may have suffered an irreparable injury to the nerves in his back at the time of ...

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