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03/29/88 Richard Swaw, v. Gerald Klompien

March 29, 1988

RICHARD SWAW, PLAINTIFF-APPELLEE AND SEPARATE APPELLANT

v.

GERALD KLOMPIEN, DEFENDANT-APPELLANT (NAHIM NASRALLA, DEFENDANT AND SEPARATE APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

522 N.E.2d 1267, 168 Ill. App. 3d 705, 119 Ill. Dec. 408 1988.IL.446

Appeal from the Circuit Court of Cook County; the Hon. Daniel P. Glecier, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Defendant, Dr. Gerald Klompien, appeals from a jury verdict rendered against him in the amount of $510,450.68 in a medical malpractice action. Plaintiff appeals from a jury verdict rendered in favor of codefendant, Dr. Nahim Nasralla.

Plaintiff and his wife were married when both were 18 years old. In 1983, they had two sons, ages nine and six. They decided to seek medical advice regarding family planning. Plaintiff's wife contacted her gynecologist, who suggested that Mr. Swaw undergo a vasectomy. She referred the Swaws to defendants, both general surgeons associated with each other in practice.

Mr. Swaw and his wife first visited the doctors' office on March 24, 1983. During that visit, Dr. Klompien explained the vasectomy procedure. He gave plaintiff a document entitled "Vasectomy Instructions." The document explained how Mr. Swaw was to prepare for the vasectomy and what he was to do after the vasectomy. The document also mentioned possible complications of the vasectomy, including pain, swelling and discoloration, and advised Mr. Swaw to contact the doctors if he had any problems.

Subsequently, Mr. Swaw and his wife decided that he would undergo a vasectomy and scheduled an appointment for April 22, 1983. On that day, a Friday, Mr. Swaw and his wife arrived at the doctors' office at approximately noon. Both Drs. Klompien and Nasralla performed the bilateral vasectomy while Mr. Swaw's wife waited in another room.

The doctors testified that they did not encounter any unusual problems during the surgery. Plaintiff remained in the doctors' office for about an hour before returning home. At home, Mr. Swaw placed ice over the incisions on his scrotum, took the prescribed medication, and slept until the next morning, Saturday, April 23, 1983.

Upon wakening, he noticed some swelling and a "little lump" in his left groin. He applied ice as directed but the lump continued to get larger and his discomfort continued. He phoned Dr. Nasralla, who advised him to continue to apply ice and call back if there were any other problems.

The next day, Sunday, the swelling and pain continued so plaintiff phoned the doctors' office and left a message. Dr. Klompien returned the call.

At this point, plaintiff's "left testicle had gotten larger, it was black, his penis was black with two bulging sacks of blood at the tip, his buttocks and upper left thigh were black and blue and the left side of his abdomen up to the navel and out to the hip was also grossly discolored." When plaintiff saw the extent of the swelling and discoloration, "he thought he was dying."

Dr. Klompien told plaintiff to apply heat, take hot baths, and call Monday to arrange an appointment if the discomfort continued.

On Monday, the discoloration, swelling and pain continued and plaintiff's wife scheduled an appointment for Tuesday. Dr. Klompien examined plaintiff on Tuesday and prescribed medication. Plaintiff's symptoms continued but he had less pain on Wednesday. By Thursday, April 28, 1983, the pain became so severe that the plaintiff went to the hospital where he was examined by both defendant doctors.

Dr. Klompien continued to treat the plaintiff through June 13, 1983. The doctors told plaintiff that his pain and discomfort could last six months to a year. When the symptoms persisted beyond this period, Mr. Swaw consulted other physicians who eventually referred him to a urologist in October 1984. Surgery, performed by the urologist in February 1985, relieved much of the pain but physical activity continued to cause extreme discomfort. The possibility of additional surgery to obtain relief was suggested, but the plaintiff declined when advised of the potential benefits and hazards of the procedure.

Plaintiff brought suit against both doctors alleging negligent care and treatment. Plaintiff testified that although subsequent surgery relieved much of his pain, virtually any activity still causes a feeling as though someone has either kicked him or is pulling on the left testicle.

Plaintiff returned to work in May 1983, but did not otherwise resume his normal lifestyle. The commissioner of the Amateur Softball Association testified that prior to the alleged negligence of the doctors, the plaintiff actively participated as a highly regarded 16-inch softball player in the Chicago area and could have continued in that capacity for many years. In 1983, plaintiff's sons, then ages nine and six, were in the process of getting into organized baseball. He practiced with them to improve their skills. His condition prevents him from continuing this activity.

During the winter months, he bowled with his family and played hockey with his sons in their driveway. During the summer months, he enjoyed boating, swimming and skiing at the family's summer cottage. He can no longer participate in any of these activities. His wife now describes him as a "couch potato."

Although he can still engage in marital relations with his wife, the activity is painful and less frequent.

Family members corroborated plaintiff's testimony. Plaintiff's wife described his symptoms and the phone calls to the doctors. She told of taking her husband to the hospital on April 28, where both doctors examined him. Dr. Klompien told her that her husband had a hematoma, he should stay in bed and keep applying heat to the area. He also told her that her husband should not be in that much pain and he should not be such a "big baby."

The plaintiff presented the testimony of his expert, Dr. Swerdlow, a general surgeon. Both defendants testified during plaintiff's ...


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