APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
529 N.E.2d 260, 174 Ill. App. 3d 629, 124 Ill. Dec. 440 1988.IL.1423
Appeal from the Circuit Court of Bureau County; the Hon. Robert L. Carter, Judge, presiding.
JUSTICE HEIPLE delivered the opinion of the court. SCOTT, J., concurs. PRESIDING JUSTICE STOUDER, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE
The plaintiffs, Eugene and Shirley Tomaszewski, brought a suit against the defendant, Dr. Mukund Godbole, for medical malpractice. The plaintiffs' theories of recovery at trial were basically that Mr. Tomaszewski did not give his informed consent to the procedure performed or its attendant risks, and that the procedure performed was unnecessary because the standard of care for Mr. Tomaszewski's condition was medical management. Following trial, the jury rendered a verdict in favor of the defendant and against the plaintiffs. The plaintiffs appeal. We affirm.
On appeal, the plaintiffs do not contend that the jury verdict is against the manifest weight of the evidence. Rather, they maintain that they are entitled to a reversal of the judgment and a remand for a new trial because of several errors occurring at trial which substantially prejudiced them. Because the plaintiffs do not contend that the verdict is against the manifest weight of the evidence, we need not give a detailed recital of all the evidence at trial. The relevant evidence for purposes of resolving the plaintiffs' allegations of error is as follows.
Mr. Tomaszewski is 61 years old and has a history of gastric pain and heartburn. In 1958, he was diagnosed as having an ulcer by Dr. Poppens and was placed on a restrictive diet. Sometime between 1961 and 1976, Mr. Tomaszewski began seeing Dr. Brannon, who is since deceased, for abdominal pain, gastric pain and heartburn. Dr. Brannon prescribed Tagamet for his symptoms. Mr. Tomaszewski testified that he took the Tagamet as needed.
In 1976, Mr. Tomaszewski again visited Dr. Poppens and was diagnosed as having acute gastritis. The doctor prescribed sedatives, tranquilizers and a bland diet. That same year, Mr. Tomaszewski visited Mayo Clinic and was treated by Dr. Higgins. An upper gastrointestinal X ray and an endoscopy revealed reflux esophagitis, or a narrowing of the esophagus, a Schatzki's ring, or stricture in the area of the diaphragm, and a hiatal hernia. The stomach was normal. Dr. Higgins advised him to continue with the Tagamet.
In 1981, Mr. Tomaszewski visited Dr. Konetzki, who had taken over Dr. Brannon's practice. He gave the doctor a history of lower thoracic pain, upper abdominal pain, upper gastric pain and heartburn, symptoms consistent with reflux esophagitis and ulcer. Dr. Konetzki indicated that the reflux esophagitis problem had been going on too long without significant improvement and suggested to Mr. Tomaszewski that he consider surgery. Dr. Konetzki also recommended surgery because he did not believe Mr. Tomaszewski complied with the recommendations for medical management of his problems. Such recommendations included taking Tagamet four times a day with meals and at bedtime, avoiding certain foods, cigarettes, large meals and stress, and elevating the head of the bed. Until such time as Mr. Tomaszewski chose surgery, Dr. Konetzki prescribed Tagamet.
Mr. Tomaszewski first saw the defendant doctor in December of 1981 upon recommendation of his wife's doctor, Dr. Tarsinos. The defendant became familiar with Mr. Tomaszewski's history and scheduled an endoscopy. The endoscopy revealed the same problems revealed by the Mayo Clinic endoscopy -- reflux esophagitis, a Schatzki's ring in the area of the diaphragm, and a hiatal hernia. It also revealed a duodenal ulcer. The defendant then spoke to someone from the records department at Mayo Clinic over the telephone. This person apparently read the defendant Mr. Tomaszewski's medical record from Mayo Clinic. Based on his observations and tests and the Mayo Clinic record, it was the defendant's Conclusion that medical treatment had failed and that the plaintiff required surgery to correct the problems of reflux esophagitis, hiatal hernia, and ulcer.
The defendant testified that he explained to the plaintiffs his opinion that surgery was necessary to correct Mr. Tomaszewski's problems. He also informed the plaintiffs of the risks of such surgery and the other options available to Mr. Tomaszewski. To correct the ulcer problem, the defendant explained that he would cut the vagus nerves to decrease the amount of acid being produced in the stomach. If Mr. Tomaszewski's anatomy permitted, he would perform a partial cell vagotomy where branches of the nerve are removed. If not, the entire vagus nerve would be severed in a procedure called a truncal vagotomy. A truncal vagotomy requires an additional procedure called a pyloroplasty, or an opening in the lower stomach to allow the stomach to empty. Risks attendant to a pyloroplasty include diarrhea and "dumping syndrome," or the passage of incompletely digested food immediately after eating. To correct the hiatal hernia and reflux esophagitis, the defendant explained that he would apply a device called an Anglechik antireflux ring. The defendant maintains that Mr. Tomaszewski elected to undergo surgery with the attendant risks.
During Mr. Tomaszewski's surgery, a truncal vagotomy and pyloroplasty were performed. Following surgery, Mr. Tomaszewski experienced chronic diarrhea and dumping syndrome. He and his wife filed suit against the defendant for medical malpractice. The plaintiffs' theories of recovery at trial were basically that Mr. Tomaszewski did not give his informed consent to the procedure performed or its attendant risks and that the procedure performed was unnecessary because the standard of care for Mr. Tomaszewski's condition was medical management. The jury returned a verdict for the defendant.
The plaintiffs appeal and urge that several errors occurred at trial warranting a reversal. Where it is not contended that the verdict is against the manifest weight of the evidence, the verdict will not be disturbed for contentions of a non-prejudicial nature. The object of review is not to determine whether the record is completely free of error, but whether any error occurred which operated to the prejudice of appellant or unduly affected the outcome below. Saputo v. Fatla (1975), 25 Ill. App. 3d 775.
The plaintiffs first argue that the trial court committed reversible error when it denied their motion for a mistrial based on a remark made by the defendant during his testimony which allegedly violated an order in limine. Prior to trial, the court entered an order in limine prohibiting all witnesses from referring to statements made by either of the plaintiffs about the incompetence of, or their dissatisfaction with, members of the medical community. Notwithstanding the order, the following took place at trial:
"Q. [Defense Attorney]: What information did you receive on this patient before you first saw him?
A. [Defendant]: That this gentleman had pain, and difficulty in swallowing, and the condition was severe enough that he had needed to be seen soon. That he had been referred to another surgeon but had stated that the other surgeon was a son-of-a-bitch who had --
MR. WIENHOLD [Plaintiffs' Attorney]: Objection, your Honor. This was specifically covered in motion in limine and has done nothing but inflame the jury.
MR. WIENHOLD: Move that it be stricken and witness be admonished.
THE COURT: I would instruct the -- first, I would strike the last statement and instruct the jury not to consider the last statement of what he said about the other doctors, what you are referring to Counsel."
For the violation of an order in limine to be the basis of a new trial, the order must be specific and the violation clear. Where the likelihood of prejudice is great, the violation is reversible error. (In re Estate of Loesch (1985), 134 Ill. App. 3d 766.) The plaintiffs maintain that prejudice ensued from the defendant's remark because it destroyed Mr. Tomaszewski's credibility and because the case turned on the credibility of the parties. We disagree.
To prevail on the first issue in the controversy, the lack of informed consent claim, the plaintiffs had to prove that the defendant failed to advise Mr. Tomaszewski of the foreseeable risks and results of a given surgical procedure as well as the reasonable alternatives to such a procedure, that a reasonable medical practitioner of the same school in similar circumstances would have disclosed such risks, results or alternatives, and that the failure to disclose proximately caused Mr. Tomaszewski's injuries. The failure of a physician to conform to the professional standards of disclosure must be proved by expert medical evidence. (Guebard v. Jabaay (1983), 117 Ill. App. 3d 1.) Thus, Mr. Tomaszewski's credibility had little, if anything, to do with the issue.
Moreover, Mr. Tomaszewski's expressed opinion that a particular surgeon was a son of a bitch says nothing really definitive about either the surgeon's abilities or the holder of the opinion. That is to say, the remark is quite irrelevant to either point. A surgeon can be fully competent in his profession and still be regarded as a son of a bitch by patients and colleagues. That is a matter of common experience. The fact that Mr. Tomaszewski's opinion was expressed to the jury does not adversely reflect on Mr. ...