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03/22/96 GENEVIEVE WODZIAK v. ROBERT KASH

March 22, 1996

GENEVIEVE WODZIAK, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF JOSEPH WODZIAK, DECEASED, PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,
v.
ROBERT KASH, DEFENDANT-APPELLANT AND CROSS-APPELLEE (JOHN MCMAHAN, DEFENDANT AND CROSS-APPELLEE).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 88 L 18059. THE HONORABLE JOHN V. GUSTAFSON, JUDGE PRESIDING.

The Honorable Justice Cousins delivered the opinion of the court: McNULTY, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: Cousins

The Honorable Justice COUSINS delivered the opinion of the court:

The plaintiff, Genevieve Wodziak, acting individually and as special administrator of the estate of Joseph Wodziak, deceased, sued the defendants, Dr. Robert Kash and Dr. John McMahan, in counts of medical negligence and wrongful death. Following a jury trial, the jury found for plaintiff on the negligence count against Dr. Kash, awarding damages of $900,000. The jury found for the defendants on all other counts. Dr. Kash made a post-trial motion to reduce the award by $250,000, the amount plaintiff had obtained from a settlement with a hospital. Plaintiff contended that because the settlement had compensated for a different injury as well as the injury at issue, the trial court should hold a hearing to apportion the settlement by injury for contribution purposes. However, the court granted Dr. Kash's motion to reduce the award. Dr. Kash appeals the judgment against him, arguing that (1) he is entitled to judgment n.o.v. because plaintiff failed to establish a prima facie case of medical negligence; (2) he is entitled to a new trial because the jury's verdict was contrary to the manifest weight of the evidence; and (3) the trial court committed prejudicial error by refusing to disclose the contents of two jury inquiries to his counsel. Plaintiff has cross-appealed, arguing that (1) the court's decision to grant the $250,000 reduction was improper, and (2) the verdict in favor Dr. McMahan was against the manifest weight of the evidence.

We affirm.

BACKGROUND

On October 2, 1986, decedent was admitted to MacNeal Hospital for severe lower back pain. Within a few hours, decedent suffered a massive myocardial infarction. Decedent remained in the hospital for 20 days, after which Dr. Kash determined that decedent could be released.

The incident at issue with Dr. Kash occurred on November 7, 1986, when decedent entered the emergency room at MacNeal Hospital complaining of shortness of breath. The attending physician examined decedent at 6 p.m. and diagnosed him as having acute respiratory stridor - a high-pitched noise indicating that the body's breathing passages are blocked. The attending physician administered drugs to decedent to dilate his airways. At 7 p.m., the attending physician called Dr. Kash, who ordered decedent to be admitted to the hospital for further observation. At 9:30 p.m., the attending physician again called Dr. Kash and recommended not admitting decedent because his condition had vastly improved, and Dr. Kash followed this recommendation, which resulted in decedent's discharge at 10:30 p.m.

On November 9, 1986, decedent became unconscious and was taken to Holy Cross Hospital, and the hospital discovered that decedent had severe retention of carbon dioxide. An anesthetist attempted to intubate decedent down his trachea, but he discovered an obstruction of the trachea known as a subglottic stenosis - a narrowing of the airway at the level of the cricoid. A smaller endotracheal tube was introduced that would dilate the stenosis and permit decedent to be ventilated.

Decedent continued to have breathing difficulties, and he was transferred to Northwestern Memorial Hospital on November 25, 1986. On that date, Dr. McMahan examined decedent and discovered that decedent's stenosis had blocked off a substantial part of his airway. Thus, Dr. McMahan immediately performed an emergency tracheostomy to allow decedent to breathe.

The stenosis continued to progress so that decedent was soon unable to talk. On May 11, 1987, the incident at issue with Dr. McMahan occurred when Dr. McMahan attempted laser resection surgery to remove the stenosis. During the surgery, decedent suffered massive bleeding from his innominate artery, and additional surgery was required to repair the artery. This procedure resulted in a cerebral vascular accident, commonly known as a stroke. In addition, the reparation of the innominate artery reduced decedent's blood flow to the brain by half. Decedent was soon dependent on others for all care and mobility, and he died on November 19, 1993.

On September 30, 1988, decedent filed a complaint against Dr. Kash and MacNeal Memorial Hospital for medical negligence for injuries received on October 2, 1986, and thereafter. Dr. McMahan was later added as an additional defendant. On November 2, 1993, MacNeal settled with decedent for $250,000. On November 3, 1993, decedent filed his fourth amended complaint, on which a trial began on November 12, 1993. However, decedent died on November 18, 1993, and a mistrial was declared the next day.

On November 29, 1993, plaintiff filed her fifth amended complaint. Count I alleged that Dr. Kash had negligently failed to take adequate steps to ascertain the cause of decedent's stridor on November 7, 1986, and negligently failed to render proper treatment, resulting in severe injury, great pain, and medical expenses. Count II alleged that Dr. McMahan carelessly and negligently performed surgery on the decedent so that a fistula on the innominate artery was formed which required additional immediate surgery to remove, during which decedent suffered his cerebral infarct. Count III was an action for loss of consortium against Dr. McMahan. On December 29, 1993, Plaintiff amended her complaint to add an additional count of wrongful death against both Dr. Kash and Dr. McMahan.

The second trial commenced on September 30, 1994. Dr. Carney testified for the plaintiff as a medical expert. Establishing his credentials, he testified that he was board certified in thoracic and cardiovascular surgery. He had repeated experience in the diagnosis of tracheal and subglottic stenosis and the treatment of tracheal stenosis, and was knowledgeable of the standard of care as to diagnosis of tracheal and subglottic stenosis. Dr. Carney had treated many cases of stenosis with dilatation and had treated several cases of subglottic stenosis in his residency.

Dr. Carney gave the following testimony on decedent's medical treatment:

"MR BERTUCCI [plaintiff's counsel]: What was the diagnosis then made by the emergency room staff at Holy Cross Hospital on November 9, 1986.

DR. CARNEY: Subglottic stenosis.

Q Again, can you tell the ladies and gentlemen of the jury briefly what is subglottic stenosis.

A Yes. Subglottic stenosis is a narrowing of the airway at the level of the cricoid essentially which interferes with the adequate flow of air for the individual.

Q Doctor, do you have an opinion within a reasonable degree of medical and surgical certainty as to whether this patient, Mr. Joseph Wodziak, had subglottic stenosis when he was in the emergency room of MacNeal Memorial hospital on November 7, 1986?

A Yes, I do.

Q What is that opinion?

A The opinion that it existed at that time.

Q Dr. Carney, I was asking you a question with regard to the standard of care regarding Dr. Robert Kash. Let me ask you this question. Do you -- are you familiar with the standards of care and what they were with regard to an internist in the diagnosis of subglottic or tracheal stenosis in 1986?

A I don't think the standard of care of an internist is any different than anyone else for this condition.

Q Do the standards of care required of internists to diagnose and treat this condition cut across all branches of medicine in terms of standards of care?

A Yes.

MR. CUNNINGHAM [appellant's counsel]: Objection to the leading nature of the question.

THE COURT: Overruled.

THE WITNESS: It is a critical problem that deserves attention by whoever sees the patient.

Q Dr. Carney, let me ask you this question. Do you have an opinion within a reasonable degree of medical certainty as to whether Dr. Robert Kash deviated from the standard of care for a reasonably well-qualified internist when he was telephoned by the emergency room physician on November 7, 1986?

MR. CUNNINGHAM: Objection, your Honor, once again to the foundation, of the form of both Smith versus Monet and Wilson versus Clark as well.

THE COURT: Objection is ...


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