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October 3, 1994


Appeal from the Circuit Court of Cook County. Honorable WILLIAM A. KELLY, Judge Presiding.

Petition for Leave to Appeal Denied February 1, 1995.

Buckley, Campbell, O'connor, Jr.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

This appeal arises out of a medical malpractice action brought by Norma Bianchi, the special administrator of the estate of her husband, Edwin Bianchi, against Audrey Mikhail, the special administrator of the estate of Dr. Kamel A. Mikhail, and Dr. Mohammed E. Darwish. Plaintiff alleged that defendants were negligent in failing to recognize signs of the early stages of kidney disease in plaintiff's decedent. After a five-day trial, the jury returned a verdict for defendants. On appeal, plaintiff contends: (1) that the trial Judge erred in denying a mistrial or granting other appropriate relief after defense counsel "ambushed" plaintiff's expert on cross-examination with incompetent evidence which defense counsel had failed to disclose in pretrial discovery; (2) that the trial Judge erred when he disallowed plaintiff the opportunity to obtain an evidence deposition of plaintiff's expert to explain the unauthenticated, non-disclosed document the defendant had used to impeach plaintiff's expert; and (3) that the trial Judge committed reversible error by failing to poll the entire jury on its first two "verdicts."

In January 1979, Edwin Bianchi ("Bianchi") consulted Dr. Mikhail, his family physician, for colon and stomach problems. Dr. Mikhail diagnosed Bianchi as suffering from diverticulitis, or inflammation of the bowels. In February 1979, at the age of 65, Bianchi was admitted to MacNeal Hospital for an attack of diverticulitis. Routine urine and blood tests were taken at that time. The urine test showed that Bianchi's serum creatinine level was 1.9. Serum creatinine is a byproduct of muscle tissue which the kidneys remove from the blood. Plaintiff contends that a 1.9 level of serum creatinine in the blood is abnormally high, illustrates a loss of kidney function and should alert a physician to the possibility of serious kidney problems. Dr. Mikhail did not inform Bianchi that he had possible kidney problems nor was he referred to a kidney specialist.

On October 1, 1980, Bianchi went to the hospital emergency room because he was unable to urinate. As a result, he was admitted for an obstructive uropathy which was caused by an enlarged prostate. Dr. Mikhail referred Bianchi to Dr. Darwish, a urologist. Dr. Darwish performed a transurethral resection on Bianchi in order to remove the obstruction. Subsequently, on October 7, 1980, Dr. Mikhail performed elective hernia surgery on Bianchi.

During his hospitalization, Bianchi's blood and urine was routinely checked on three separate occasions. Upon his admission, his serum creatinine level was 1.9. On October 3, 1980, his creatinine level had risen to 2.1 and on October 6, 1980, the level was 2.4. Bianchi was not informed of any possible kidney problems nor did Dr. Mikhail or Dr. Darwish consult a kidney specialist. After his discharge on October 14, 1980, Bianchi visited Dr. Mikhail on an outpatient basis. No tests for his serum creatinine level were done or ordered.

On November 2, 1980, Bianchi was readmitted to the hospital because he was vomiting and had an uncontrollable nose bleed. His serum creatinine level had jumped to 11.7 and he went into permanent renal failure. He was transferred to Loyola Hospital where a renal biopsy was performed. The biopsy showed that Bianchi suffered from Rapidly Progressive Glomerulonephritis ("RPGN"). RPGN is a fatal kidney disease which is only treatable if diagnosed early in its development.

Bianchi survived as a dialysis patient for the next 19 months. As a consequence of the disease, however, he suffered from numerous other health problems until his death on June 25, 1982.

At trial, defendants presented the testimony of Dr. Darwish, his expert Dr. Vincent J. O'Connor, Dr. Mikhail's expert Dr. Robert C. Muehricke, and the deposition testimony of Dr. Mikhail, who had died prior to trial. Dr. O'Connor testified that a normal creatinine level at Northwestern Memorial Hospital is 1.7. He stated he would not be concerned, however, by readings of 1.9 or 2.1. He further testified that, although 2.4 is "getting into a gray area," he would not be alarmed absent other signs of RPGN. Dr. Muehricke also described levels of 1.9 and 2.1 as normal in an aging kidney and that a level of 2.4 is only "slightly elevated." Both Dr. Darwish and Dr. Mikhail attributed the higher creatinine levels to Bianchi's age and the hardening of his arteries due to hypertension. In effect, all these doctors reasoned that a person's kidney function decreases as a person gets older and thus his creatinine level will rise as a natural consequence of age. Consequently, normal creatinine levels in older people naturally will be higher than in younger people.

On the other hand, plaintiff's expert, Dr. Allen Arieff, testified that a normal range of creatinine in all adults will never rise above 1.4. He testified, therefore, that when Dr. Mikhail and Dr. Darwish saw that Bianchi's creatinine level was 1.9, they should have been alarmed and notified a specialist who could have begun early treatment of Bianchi's condition. According to Dr. Arieff, although it is true that the kidney function of a healthy person will naturally decline with age, this decline will be matched by a decline in muscle tissue. Therefore, since creatinine is a byproduct of muscle tissue, Dr. Arieff reasoned that a healthy adult's creatinine level will never rise above 1.4.

On cross-examination of Dr. Arieff, counsel for Dr. Darwish asked Dr. Arieff if he was on the staff of San Francisco General Hospital. After he responded that he was on the staff of all the University of California teaching hospitals, Dr. Darwish's counsel informed Dr. Arieff and the jury that the hospitals at which he is on staff show normal creatinine levels for people over 65 to be between .6 and 1.9. Dr. Darwish's counsel made this statement before defendant had introduced any evidence to prove this fact. At that point, counsel for Dr. Darwish had a book entitled "Clinical Laboratories Manual, July, 1988, San Francisco General Hospital" marked as defendant Dr. Darwish's exhibit number 2 for identification. While the book was being marked, the trial Judge commented:

"You can tell me when we're at a point to stop. The stuffiness is getting to me. I think you should show that to adverse counsel. Maybe we ought to take a break now."

At the suggestion of Dr. Darwish's counsel, the Judge agreed to take a break after counsel had concluded his cross-examination of Dr. Arieff. Dr. Darwish's counsel then had Dr. Arieff open the book to a marked page. On that page, normal creatinine level ranges were listed for patients under 16 years of age, between 16 and 65 years of age, and over 65 years of age. The normal range for people over 65 was shown to be between .6 and 1.9. Dr. Arieff was clearly surprised and the only explanation he could come up with was that the manual had not been updated in a while.

A 10-minute recess was taken at this point in the trial. At no time did plaintiff's counsel object to the introduction of this book on the ground that he was not provided with it pursuant to his pretrial discovery request. He made no other motions at this time nor did he even mention the book in his redirect-examination of Dr. Arieff.

The following morning plaintiff's counsel moved for a mistrial based on Dr. Darwish's counsel's failure to disclose before trial the laboratory manual from San Francisco General Hospital pursuant to plaintiff's Rule 237 Notice to Produce. Dr. Darwish's counsel stated that he did not believe that the laboratory manual fell within plaintiff's request. Plaintiff's counsel explained that the reason he did not object or make any other motions the day before when the manual was introduced and the cross-examination conducted was because he was "neutralized with shock." He also stated that he was "trying to hide the extraordinary effect that this book had on me." The trial Judge denied the motion for mistrial on the grounds that the motion was untimely. Plaintiff then requested, since Dr. Darwish's counsel clearly violated discovery, that the portion of the ...

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