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08/23/94 RUTH CREIGHTON v. DELORES THOMPSON

August 23, 1994

RUTH CREIGHTON, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ROBERT CREIGHTON, DECEASED, PLAINTIFF-APPELLANT,
v.
DELORES THOMPSON, SPECIAL ADMINISTRATOR OF THE ESTATE OF CHARLES E. THOMPSON, M.D., DECEASED, LIFE EXTENSION INSTITUTE MEDICAL GROUP, AND C. FLETCHER WATSON, M.D., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Stephen Schiller, Judge Presiding.

Hartman, DiVITO, McCORMICK

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff, Ruth Creighton, appeals from the judgment entered on a jury verdict for defendants in a medical malpractice action and from the denial of her post-trial motion. She questions whether the circuit court committed reversible error in (1) permitting cross-examination of her expert witness concerning restrictions on his medical license; (2) failing to strike the opinion testimony of a defense expert; (3) allowing a second defense expert to testify using a statistical probability; and (4) failing to strike the testimony of a third defense expert after he evaded questions about his financial interest. We affirm.

Decedent's Medical History. On May 24, 1982, plaintiff's decedent, Robert Creighton, visited Dr. Sol Barnett, not a party in this case, and underwent a routine Federal Aviation Administration (FAA) physical to maintain his private pilot's license. During the examination, Dr. Barnett palpated Creighton's abdomen and discovered a vague abnormality in the midline area. He described the finding in his records as a "vague fullness in the midline which may be nothing." Nevertheless, he advised Creighton to follow up with tests to evaluate the fullness. Creighton told Dr. Barnett that he would be receiving a complete, company physical in a couple of weeks and that the necessary tests could be run then. As a result, Dr. Barnett did not insist that any tests be performed at that time. Dr. Barnett made no note of the finding in his FAA report because he was uncertain whether it signified a problem and did not want to jeopardize Creighton's pilot's license; if he had found an abnormality of significance, he would have reported it to the FAA.

One month later, on June 23, 1982, Creighton visited defendant Dr. Charles Thompson for an executive company physical as required by his employer, Solo Cup Company. Dr. Thompson was performing this physical either as part of his private practice or on assignment from defendant Life Extension Institute Medical Group (Life Group). He informed Dr. Thompson of Dr. Barnett's previous finding. Dr. Thompson felt his abdomen and found no abnormality. He asked Creighton if he had been struck in the stomach recently, and when Creighton answered negatively, he suggested the problem may have been related to the location of Creighton's belt buckle.

To the contrary, Dr. Thompson testified that Creighton did not report any abdominal complaint, nor did he inform him of Dr. Barnett's previous finding of abnormality. When Dr. Thompson inquired whether Creighton had any health problems, he responded only that he suffered from migraine headaches, hoarseness, and a tendency to gain weight. Dr. Thompson could not recall the specifics of Creighton's examination, but he routinely palpated a patient's abdomen during a physical. His records indicated no abnormality.

On July 22, 1982, Creighton was seen by Dr. Harlan Failor at a clinic in Urbana, Illinois, due to complaints of nausea, vomiting, and diarrhea following a trip to Panama. Dr. Failor examined Creighton's abdomen and noted that it was soft, with no bowel sounds, meaning there was no obstruction therein. He found no abnormalities with Creighton's abdomen. Specifically, he detected no mass, no tumor, and no fullness.

Creighton visited Dr. Barnett a second time on August 5, 1983 and specifically complained of a sore throat. Dr. Barnett did not examine Creighton's abdomen, nor did he follow up concerning his May 1982 finding of vague abdominal fullness.

Creighton underwent another executive company physical at Life Group on September 16, 1983, where he was examined by its medical director, defendant Dr. C. Fletcher Watson. Dr. Watson used a questionnaire to obtain a detailed medical history of Creighton. Creighton expressed no complaints relating to his abdomen and did not report Dr. Barnett's finding of a vague fullness.

The physical examination performed by Dr. Watson was the standard physical performed for company examinations. This included both superficial and deep palpation of the abdomen. Dr. Watson's records indicated that he examined Creighton's abdomen and found it to be normal. Dr. Watson performed close to 10,000 abdominal examinations in 1983, including occasions where he detected a mass or other positive finding.

On May 9, 1984, Creighton again visited Dr. Barnett for a FAA physical. While palpating Creighton's abdomen, Dr. Barnett noted an abnormality in the same area where he had previously felt the vague fullness. He described it as a pulsating mass in the midline between the umbilicus and epigastric area. The abnormality was more prominent in 1984 than in 1982. Dr. Barnett asked Creighton whether he had followed up on the previous finding in 1982, and Creighton explained that he had forgotten to do so.

Tests, including x-rays and a surgical opinion, were ordered to determine the nature of the abnormality. Creighton went to Northwestern Memorial Hospital in June 1984, where it was determined that he had a mass in the retroperitoneum surrounding the aorta. The retroperitoneum is the area of the body behind the abdominal organs, such as the liver, kidneys, and bowels. The mass was diagnosed as malignant lymphoma mixed diffuse with sclerosis. The lymphoma was designated a Stage IV because it was wrapped around the aorta and had spread to the bone marrow. In most cancers, including lymphoma, there are four stages. Stage I is a very localized lymphoma with only one lymph node affected. Stage II lymphoma involves two lymph nodes on one side of the diaphragm. Stage III lymphoma involves cancer located in the lymph nodes and present on both sides of the diaphragm. Stage IV lymphoma signifies that the cancer has spread beyond the lymph nodes to an organ or the bone marrow.

Creighton visited the Memorial Sloan-Kettering Cancer Center in New York to obtain a second opinion from Dr. Burton Lee, a medical oncologist. There, he was diagnosed as having a diffuse, poorly differentiated, lymphocytic lymphoma, which was considered Stage IV due to the location and bone marrow involvement. This particular disease has a poor prognosis with a high likelihood of recurrence. Dr. Lee informed Creighton that he may do well with treatment, but there was no guarantee of a cure. Creighton was treated with chemotherapy and radiation therapy and achieved complete clinical remission of the disease by January 1985.

In February 1986, Creighton began suffering pains in the abdomen. Dr. John Schmale, one of Creighton's treating physicians, ordered tests which indicated that the tumor had reoccurred in exactly the same spot. Dr. Lee advised Creighton there was no cure and the best they could do is keep him in remission for as long as possible. Creighton died on November 4, 1986.

While treating Creighton's cancer, Dr. Schmale examined Creighton's abdomen on August 16, 1984, but failed to detect a fullness, although a small abdominal mass was present at the time, and despite the fact he was looking for it specifically. Again in March 1986, Dr. Schmale was unable to ...


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