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03/17/94 JOSEPH WEBER v. DR. THOMAS COLE

March 17, 1994

JOSEPH WEBER, JR., AS ADMINISTRATOR OF THE ESTATE OF MARGARET WEBER, PLAINTIFF-APPELLANT,
v.
DR. THOMAS COLE, DR. FRANK CARTER, DR. WILLIAM ZWILLING, AND LIDGE, ALFINI, ZWILLING, LAMBERTA ORTHOPEDIC ASSOCIATES, S.C., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE AARON J. JAFFE, PRESIDING.

Johnson, Cahill, Theis

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Plaintiff, Joseph Weber, Jr., filed this medical malpractice action on behalf of the estate of Margaret Weber, his mother, seeking damagesfor injuries she sustained due to defendants' negligence. Following trial in the circuit court of Cook County, the jury found in favor of plaintiff and awarded him $15,530 for Mrs. Weber's medical expenses. Plaintiff appeals, contending that the damage award was insufficient and inconsistent with the evidence.

We affirm.

The following evidence was adduced at trial. On August 15, 1984, Margaret Weber was admitted to Northwest Community Hospital in Arlington Heights, Illinois, after she fell and fractured her hip. Upon her admission, Mrs. Weber's family requested that defendant, Lidge, Alfini, Zwilling, Lamberta Orthopedic Associates (Orthopedic Associates), an orthopedic surgeon group, treat Mrs. Weber for her injuries. Hospital officials contacted defendant Dr. William Zwilling, a partner at Orthopedic Associates, who agreed to serve as Mrs. Weber's orthopedic consultant. Defendant Zwilling also selected defendants Drs. Thomas Cole and Frank Carter, who were on staff at the hospital, to care for Mrs. Weber.

Later that evening, defendant Zwilling examined Mrs. Weber and tentatively scheduled her for surgery on the following morning. However, defendant Cole suggested that the surgery be delayed because Mrs. Weber's blood pressure was elevated. On August 20, 1984, defendant Zwilling performed hip replacement surgery on Mrs. Weber, who remained hospitalized for approximately 3 weeks before being discharged.

At trial, plaintiff and his wife, Doris Weber, each testified that during his mother's hospital stay following surgery, she appeared confused, lethargic, and her physical condition continued to deteriorate. Plaintiff further testified that when he learned on September 7, 1984, that Mrs. Weber would be discharged later that day, he complained to a hospital nurse that he believed she was too ill. According to plaintiff, his mother was discharged despite his objections, and her condition failed to improve even though private duty nurses were employed to care for her while at home. Plaintiff further testified that he contacted the Mayo Clinic on September 10, 1984, and had Mrs. Weber transported there. Doctors at the Mayo Clinic determined that Mrs. Weber was suffering from acute renal failure, for which she was given dialysis and other treatment. Mrs. Weber was discharged from the Mayo Clinic after a 16-day stay. She subsequently passed away on December 29, 1988, prior to trial.

During trial, the videotaped deposition of plaintiff's medical expert, Dr. Frank Krumlovsky, was presented to the jury. Dr. Krumlovsky stated that defendants negligently failed to diagnose Mrs. Weber's renal failure, which developed following her surgery. He alsoopined that defendants prematurely discharged Mrs. Weber from the hospital, thereby causing her to endure 3 uncomfortable days at home, and the need for the medical treatment she received at the Mayo Clinic. Dr. Krumlovsky, further testified that dialysis does not cause any pain, and that Mrs. Weber suffered no permanent damage as a result of defendants' negligence.

Defendant Dr. Frank Carter testified that Mrs. Weber's condition improved during her hospital stay following surgery, and that by September 7, 1984, Mrs. Weber had recovered well from her fractured hip. He further testified that Mrs. Weber could have been properly discharged on September 30, 1984, but defendant Zwilling agreed to allow her to remain hospitalized to allow her hip to strengthen.

Defendant Dr. James Cole testified that he examined Mrs. Weber on both September 6, 1984, and the day of her discharge. According to defendant Cole, Mrs. Weber was not confused, but appeared alert. He also testified that Mrs. Weber was walking and participating in physical therapy. Defendant Cole stated that on September 7, 1984, Mrs. Weber's condition had improved considerably since he last saw her on August 24, 1984.

Dr. Herbert Loseff, an orthopedic surgeon, testified as an expert witness for the defense. He stated that he reviewed Mrs. Weber's medical records, which indicated that Mrs. Weber's condition had improved following her surgery despite some postoperative confusion which he considered common for a person of Mrs. Weber's age. Dr. Loseff opined that Mrs. Weber was not dehydrated during her hospital stay following her surgery. Similarly, Dr. Coleman Seskind, another medical expert called by defendants, testified that based upon his review of Mrs. Weber's medical records, Mrs. Weber was not dehydrated at the time she was discharged from the hospital.

At the Conclusion of the evidence, the parties presented closing arguments to the jury. Thereafter, the trial court instructed the jury as to the applicable law. Following its deliberations, the jury returned a verdict for plaintiff in the amount of $15,530 for Mrs. Weber's reasonable medical expenses. The trial court later denied plaintiff's post-trial motion in which plaintiff requested a new trial on the issue of damages. Hence, plaintiff filed this appeal.

Plaintiff claims that a new trial as to damages is warranted because the jury's failure to award damages for pain and suffering or disability was contrary to the uncontested evidence. We note that during oral argument, plaintiff acknowledged that no evidence established that Mrs. Weber experienced any pain. Hence, the question before this court is whether a new trial on damages is ...


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