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06/30/94 JOHN J. PYSKATY v. JOSEPH OYAMA

June 30, 1994

JOHN J. PYSKATY, PLAINTIFF-APPELLANT,
v.
JOSEPH OYAMA, M.D.; MARIA AGUINALDO, M.D.; MEDICAL SERVICES, S.C., AN ILLINOIS CORPORATION; BRUCE FLASHNER D/B/A FLASHNER MEDICAL PARTNERSHIP/THE DOCTORS EMERGENCY OFFICENTER; PHYLLIS GERBER, M.D.; AND SOUTHWEST NEPHROLOGY ASSOCIATES, S.C., A CORPORATION OF ILLINOIS. DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Howard M. Miller, Judge Presiding.

Rehearing Denied October 19, 1994. Petition for Leave to Appeal Denied October 6, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Manning, Buckley, O'Connor, Jr.

The opinion of the court was delivered by: Manning

JUSTICE MANNING delivered the opinion of the court:

Plaintiff, John J. Pyskaty, filed this action for medical malpractice alleging negligence in the diagnosis and treatment of a perirectal abscess against Joseph Oyama, M.D., Maria Aguinaldo, M.D., Medical Services, S.C., an Illinois corporation, Bruce Flashner doing business as Flashner Medical Partnership/The Doctors Emergency Officenter, Phyllis Gerber, M.D., and Southwest Nephrology Associates, S.C., a Corporation of Illinois. Plaintiff further alleged that the delay in diagnosis of the abscess led to a spread of infection, development of a condition known as Fournier's Gangrene, and resulted in loss of a large portion of his scrotal tissue. Plaintiff's cause of action against Little Company of Mary Hospital was settled prior to trial. This case was tried before a jury in the circuit court of Cook County and at the Conclusion of plaintiff's case, the trial court entered directed verdicts in favor of all defendants and against plaintiff. Plaintiff appeals.

The plaintiff raised the following issues on appeal: (1) Whether the trial court erred in barring Dr. Robert Freeark from testifying that Dr. Oyama had violated the required medical standard of care and that violation caused injury to plaintiff; (2) Whether the trial court erred in barring the testimony of the treating surgeon on the issues of violation of standard of care by the defendants' and causation of damages to plaintiff; (3) Whether the trial erred by barring Dr. Gary Zaid's testimony that defendants conduct caused injury to plaintiff; (4) Whether the trial court erred in granting defendant Oyama's motion in limine barring testimony that the delay in ordering plaintiff's surgery occurred on Thanksgiving day; (5) Whether the trial court erred in barring the testimony about plaintiff's medical condition when Dr. Rosenow first saw plaintiff; (6) Whether the trial court erred in barring photographs of plaintiff's injuries; (7) Whether the trial court properly excluded the admission of the medical bills; (8) Whether the motion to grant defendant Flashner's Medical Partnership a directed verdict should have been denied; and (9) Whether the trial court erred in granting Medical Services' motion for a directed verdict.

Plaintiff, John J. Pyskaty testified that, in November of 1984, while tracking a deer through the woods he was injured when he fell face forward onto the ground. The next day he experienced a backache which he attributed to his fall. The back pain increased so he went to see a naprapath on or about November 10th or 11th, 1984. His back pain did not subside.

On November 18, 1984, plaintiff went to the Doctors Officenter, where he was treated by Dr. Eric Teplitz, who is not a defendant. Dr. Teplitz treated plaintiff for pain in the lower back and left side, which had increased. Dr. Teplitz gave plaintiff a complete examination which included manipulation of the back, x-rays and a reflex test. Muscle relaxants and antispasmotics were prescribed. Plaintiff testified that, initially, it seemed that the pain decreased but then increased by the next day. Plaintiff testified that on November 19, 1984, he telephoned Officenter and was given a prescription for Tylenol with codeine, which decreased the pain.

On November 20, 1984, he returned to Officenter because of constipation and pain. Plaintiff experienced pain on his left buttock due to the pressure caused by sitting while driving. Defendant, Dr. Phyllis Gerber, treated plaintiff at Officenter. Dr. Gerber palpitated his abdomen and conducted a rectal examination, which caused plaintiff excruciating pain. Plaintiff testified that this was the first time he had rectal pain. Plaintiff did not have any swelling in the rectal area nor did he have any problems urinating. Blood and urine samples were taken. Dr. Gerber advised plaintiff that the constipation was a serious problem and could require hospitalization, if not corrected. She showed x-rays to plaintiff pointing out what she believed to be a kidney stone. Dr. Gerber instructed him to urinate in a coffee can to see if he passed the kidney stone. Dr. Gerber diagnosed an infection and prescribed an antibiotic, Keflex. Plaintiff's prescription for Tylenol with codeine was refilled, and he was given an appointment to return in 3 days.

By the next morning, November 21, 1984, plaintiff had not had a bowel movement. He was experiencing weakness, and his left buttock had swollen to twice the normal size. When he called Officenter, he was advised to discontinue taking the Keflex due to a possible allergic reaction, to apply cold compresses and to come into the office. On November 21, 1984, at about 11:00 p.m., he was unable to drive due to pain from sitting. He was taken by ambulance to Little Company of Mary Hospital, which was in his neighborhood. He was taken from the ambulance to the emergency room on a gurney, where defendant, Dr. Maria Aguinaldo, performed a rectal examination which was very painful. His vital signs were taken, a catheter was inserted to drain urine and x-rays were taken. At 3:00 a.m., on November 22, 1984, defendant, Dr. Joseph Oyama, the internist on call, was assigned as plaintiff's physician. He is a licensed, board certified physician in internal medicine and in nephrology, which is the treatment of kidney problems.

At about 4:00 a.m., on November 22, 1984, plaintiff was given an intravenous solution and antibiotics. His pain subsided after taking Demerol. At approximately 12:30 p.m. to 1:00 p.m., on November 22, 1984, Dr. Oyama saw plaintiff for the first time. According to Dr. Oyama, in the early morning of November 22, 1984, he received a telephone call at home from Dr. Aguinaldo in the emergency room at Little Company of Mary Hospital, to admit a patient. Dr. Aguinaldo had made the primary diagnosis as cellulitis of the buttock and urinary retention. Because of a diffuse infection and cellulitis, she called Dr. Oyama. Dr. Oyama asked Dr. Aguinaldo if this was an abscess and she said it was cellulitis. He does not recall whether Dr. Aguinaldo said she had ruled out abscess, nor does he recall the mention of a swollen buttock. Doctors Oyama and Aguinaldo agreed to admit plaintiff with a diagnosis of perirectal cellulitis and acute urinary retention. Dr. Oyama did not see plaintiff until about 12:30 or 1:00 p.m. on that day, at which time his examination of plaintiff showed redness of buttock, swelling, tenderness of perianal area and a mass in the right ischiorectal area. The mass indicated an abscess, and he diagnosed rectal ischial abscess. He entered an order for a surgical consult with Dr. Donohue for the following day. On November 23, 1984, Dr. Mary K. Rosenow, a surgeon in the Donohue Group, examined plaintiff at about 8:00 or 9:00 a.m. and advised that plaintiff would need surgery as soon as possible. His testicles had swollen to the size of a grapefruit and were black and blue. Surgery was scheduled that afternoon. Prior to surgery, plaintiff testified that he smelled something putrid and felt something wet while he was being taken to surgery on the gurney. He noticed a puddle of pus and blood. When he inquired he was told the pus and blood came from his scrotum.

Plaintiff had 3 operations before leaving the hospital; to drain the abscess, for Fournier's gangrene and reconstructive surgery. Plaintiff testified that since surgery there has been no hair growth on "a good half" of his scrotum, he became very withdrawn, and in 1986 he started psychotherapy for sexual problems.

Prior to trial defendants filed motions in limine to bar Doctors Robert Freeark, Gary Zaid, Sharifi and Mary K. Rosenow from testifying as Rule 220 experts. The motions in limine were granted as follows. Doctors Gerber and Flashner filed a motion to bar certain expert testimony against them by Dr. Rosenow. In their motion in limine Gerber and Flashner sought to bar Rosenow's testimony that: (1) In her consultation report she used the term "neglected" to describe the condition of plaintiff's abscess; (2) That she was "upset" that she had not been called earlier since she is of the opinion that the prior care was negligent; (3) She was "critical" of the treatment provided at the Doctors Officenter; and (4) If plaintiff had pain on November 20, 1984, the abscess was diagnosable at that time and such testimony is cumulative of the testimony already rendered by Dr. Freeark. The motion in limine was granted.

Also, Doctors Gerber and Flashner filed a motion in limine to bar Doctors Zaid and Sharifi from testifying that Dr. Gerber deviated from the standard of care in providing care to plaintiff. Doctors Zaid and Sharifi testified in their deposition that Dr. Gerber deviated from the applicable standard of care by failing to diagnose plaintiff's perirectal abscess during the examination Dr. Gerber performed on November 20, 1984. Defendants further contend in their motion in limine that the basis for all three experts' opinions are the same, i.e., that plaintiff exhibited symptoms on November 20, 1984 which should reasonably have led Dr. Gerber to the diagnosis of a perirectal abscess. During a deposition Dr. Freeark's expressed opinion was that Dr. Oyama deviated from the standard of care. Plaintiff's counsel had already made a commitment to utilize Dr. Freeark as an expert witness against Dr. Gerber. Therefore, Dr. Zaid and Dr. Sharifi should be barred from expressing opinions relative to the care and treatment rendered by Dr. Gerber. Defendants contend to allow plaintiff to present all three witness on this issue would be a waste of time and would be cumulative. The motion in limine was granted barring Doctors Zaid and Dr. Sharifi from offering opinions as to Dr. Gerber's alleged deviation from the standard of care.

Flashner and Gerber filed a motion in limine to bar plaintiff from introducing photographs taken during and after plaintiff's operative procedures. Defendants contend that the pictures do not accurately depict the injury of plaintiff at the time of the injury or the current injury as a result of the defendants' alleged negligence. Defendants motion in limine to bar introduction of the photographs was granted.

Dr. Oyama and Southwest Nephrology Associates, S.C., filed a motion in limine to bar Dr. Freeark from testifying: (1) about the standard of care applicable to Dr. Oyama; (2) any deviation from that standard of care applicable to Dr. Oyama; and (3) that injury to plaintiff proximately resulted from the care rendered by Dr. Oyama. In a separate motion in limine Dr. Oyama and Southwest Nephrology Associates sought to: (1) bar testimony that the alleged delay in ordering surgery occurred on Thanksgiving day; and (2) to prohibit plaintiff from calling each of his retained experts against these defendants as all of plaintiff's experts offer the exact same criticisms of the care rendered by these defendants and as such testimony by all of plaintiff's experts would merely be cumulative in nature. The trial court granted both motions in limine.

Plaintiff sought admission of his medical bills during the testimony of Dr. Rosenow. Counsel for Flashner and Gerber objected to the admission of the medical bills unless the witness segregated which medical bills plaintiff would have incurred without any alleged negligence, and which bills are alleged to be the result of defendant's negligence. The trial court held that Dr. Rosenow could testify to her bills, for the surgery she performed and medical care rendered by her but she was prohibited from testifying about medical bills unrelated to medical care she provided to plaintiff.

The first issue is whether the trial court erred in barring the testimony of Dr. Freeark from testifying that Dr. Oyama had violated the required medical standard of care and that violation caused injury to plaintiff. Plaintiff's attorney asked Dr. Freeark whether the treatment rendered by Dr. Oyama met the required standard of care in the community. Defendant, Dr. Oyama, objected and a side bar was held, at which time defendant's counsel argued that Dr. Freeark was being asked to render opinions previously disallowed by virture of the court's granting of defendant's motion in limine. Defendant further argued that Dr. Freeark was being asked to render opinions not previously disclosed under Rule 220. Illinois Supreme Court Rule 220(d) scope of testimony, provides:

"To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with nor go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings." (134 Ill. 2d 220(d).

The admission of evidence rests within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. ( Swaw v. Klompien (1988), 168 Ill. App. 3d 705, 715,522, 119 Ill. Dec. 408, 522 N.E.2d 1267 N.E.2d 1267, citing Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 411, 444 N.E.2d 220, 67 Ill. Dec. 181.) Supreme Court Rule 220(d) safeguards against an expert witness testifying during direct examination in a manner inconsistent with the facts known or the opinions disclosed during discovery. (134 Ill. 2d R.220(d); and ( Lee v. Ingalls Memorial Hosp. (1992), 238 Ill. App. 3d 154, 160, 179 Ill. Dec. 328, 606 N.E.2d 160, N.E.2d 160.) In order for an expert medical witness to render an opinion on the proper standards of diagnosis, care and treatment, the party offering the expert must affirmatively establish the expert's qualifications and competence to testify. ( Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867, 95 Ill. Dec. 305.) An expert's opinion is allowed on the basis of his knowledge or experience which may aid the trier of fact. ( Rock v. Pickleman (1991) 214 Ill. App. 3d 368, 574 N.E.2d 682, 158 Ill. Dec. 569.) Dr. Freeark's qualifications and experience established that he was qualified to testify as an expert with respect to the standard of care in the community in reference to treatment of abscess.

Defendant argued that Dr. Freeark was barred from giving an opinion on standard of care because that would contradict his opinion given at the deposition. Defendant points to Dr. Freeark's deposition statement in reference to plaintiff's gangrene as follows:

Q. Due to the lack of adequate data you are unable to reach an opinion as to whether additional debridement of the scrotum was caused by the delay in the surgery from the 22nd to the 23rd?

A. That's correct.

Plaintiff argues that Dr. Freeark made the following statements at his deposition which was consistent with the issue that was before the court:

"Prompt treatment would have prevented gangrene and the surgery related to that. Oyama deviated from the standard of care by not requesting surgical consult more promptly than the following day. There was only one treatment and that is drainage. Surgical consults shouldn't have been set for the next day. Once an abscess is recognized there should be immediate surgical consult. To a reasonable degree of medical certainty every hour increases the chance that the abscess will progress to serious complication."

Plaintiff's counsel read the following questions and answers from the deposition transcript:

Q. With any perirectal infection or abscess the sooner surgical intervention is undertaken, the better as a general rule of thumb?

A. Correct.

Q. Are you able to testify to a reasonable degree of medical certainty, Dr. Freeark, as to whether any additional damage resulted to the patient as a result of a 17 to 18 hour delay in being seen by the surgeon from the time that the patient was seen by Dr. Oyama?

A. Yes, I think that every hour of delay increases the chance that the abscess will progress to the point of serious complications, and that a delay of 17 hours in instituting appropriate treatment for it is indeed a factor in this man's infection, and that this constitutes a reasonable degree of medical certainty the cause, a contributing cause to the development of Fournier's gangrene.

At the Conclusion of the argument, the trial court sustained the defendants' objection to Dr. Freeark giving his opinion that Dr. Oyama departed from the required standard of care in his treatment of plaintiff, acknowledging that he had so previously ruled on the motion in limine. In sustaining defendants' objection the trial court reasoned that "deviations" from the standard of care "must be tied into a causal connection" and "here he has the opinion contrary to what you are trying to have him say." The trial court granted plaintiff's motion to make an offer of proof, and plaintiff made an offer of proof as follows:

Q. Dr. Freeark, after your review of the records from Dr. Oyama's examination at 1:00 p.m. on November 22, 1984 and the review of his doctor orders entered at that time, do you have an opinion based upon a reasonable degree of medical certainty as to whether or not Dr. Oyama met the standard of care of a reasonably well qualified physician in the treatment of the patient at that time?

A. I do not think he did.

Q. All right. And what is the basis of your opinion?

A. He ordered an incision and drainage of the abscess the following day.

Q. Okay. Now, let me ask another question, Doctor. Do you have an opinion based upon a reasonable degree of medical certainty as to whether or not that deviation of the standard of care by Dr. Oyama caused damage to the plaintiff?

A. I have an opinion, and I think it did cause damage.

Q. Okay. Let me ask you another question. Can you tell us what damage was caused by the deviations of the standard of care by Dr. Oyama?

A. Any delay in the drainage of an abscess that has the dimensions and the side effects of this one is going to lead to serious destructions of tissue. That damage is increasing on a moment to moment basis. I think the gangrene of the skin that developed in this patient, the loss of the scrotal skin, the destruction of the areas was a direct result of the infection extending out into the skin and interfering with its blood supply to the point where the tissue dies. That is a progressive process that can only be interrupted by prompt drainage of the underlying cause.

Q. All right. Doctor, if the defendant Oyama had treated this patient without violating the standard of care in your opinion based upon a reasonable degree of medical certainty would this patient's outcome have been different?

A. Yes, I think the sooner the drainage was done, the less would be the tissue destruction. I can't tell you to what extent it would be the scrotum, but I think --.

Dr. Freeark's testimony about gangrene was taken out of context, by the trial court. Dr. Freeark's statement about gangrene specifically addresses plaintiff's gangrene and not the draining of the abscess. That statement does not contradict Dr. Freeark's previous testimony about whether the treatment rendered by Dr. Oyama met the required standard of care in the community, in reference to the abscess. Furthermore, a complete reading of Dr. Freeark's testimony shows that he unequivocally questioned the standard of care rendered by Dr. Oyama. Dr. Freeark explicitly stated, in his deposition as well as his testimony at the hearing on plaintiff's offer of proof, that he opined to a reasonable degree of medical certainty that Dr. Oyama deviated from the standard of care for treatment of an abscess and that deviation was a contributing cause of plaintiff's damage. Dr. Freeark opined that, "Yes, I think that every hour of delay increases the chance that the abscess will progress to the point of serious complications, and that a delay of 17 hours in instituting appropriate treatment for it is indeed a factor in this man's infection, and that this constitutes a reasonable degree of medical certainty the cause, a contributing cause to the development of Fournier's gangrene." According to Dr. Freeark's deposition he opined that Dr. Oyama should have ordered that surgical consultation within six hours rather than within the 18 hours as ordered. Thus, Dr. Freeark's testimony was not contrary to giving his opinion that Dr. Oyama departed from the required standard of care in his treatment of plaintiff, and there was no inconsistency in violation of Rule 220(d).

The trial court also barred Dr. Freeark's testimony as to defendants Doctors Gerber and Auginaldo. Plaintiff's counsel questioned Dr. Freeark as to what damage was caused by the delay attributable to the conduct of defendant Dr. Gerber. This question was objected to by counsel for Dr. Gerber on the basis that the witness could not quantify the amount of separate damage caused by each defendant. Counsel for Dr. Aguinaldo joined in the same objection and the court also sustained that objection. In sustaining the objection the trial court reasoned, "If it's a different opinion that he gave in this deposition as to any doctor, and this definitely is, and I am going to sustain the objection." The witness was called for a further offer of proof and testified as follows:

Q. Dr. Freeark, do you have an opinion after review of the records as previously set forth based upon a reasonable degree of medical certainty as to whether or not the deviations from the standard of care of the ...


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