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04/19/96 AMY NEAL v. UPENDRANATH NIMMAGADDA

April 19, 1996

AMY NEAL, PLAINTIFF-APPELLANT,
v.
UPENDRANATH NIMMAGADDA, AND NORTH SUBURBAN CLINIC, LTD., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 89 L 03657. THE HONORABLE MICHAEL GALLAGHER, 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

JUSTICE COUSINS delivered the opinion of the court:

Plaintiff Amy Neal (Neal) filed a medical malpractice action against Julia Litvin, M.D., Upendranath Nimmagadda, M.D., David Levine, M.D., and North Suburban Clinic, Ltd., which employed Drs. Levine and Nimmagadda. Neal voluntarily dismissed Drs. Litvin andLevine, leaving Dr. Nimmagadda and North Suburban Clinic as the remaining defendants.

On November 1, 1994, a jury returned a verdict in favor defendants. Plaintiff appeals the judgment and contends that the trial court erred by: (1) improperly limiting Neal's cross-examination of defendants' experts; (2) refusing to allow Neal to call defendants' experts as rebuttal witnesses; (3) granting defendants' motion in limine after the trial commenced; and (4) denying Neal's missing-witness instruction.

BACKGROUND

In February 1987, Neal went to Dr. David Levine at the North Suburban Clinic due to occasional nose bleeds and wheezing. During his examination, Dr. Levine noted an enlargement or nodule on Neal's thyroid. Therefore, he referred her to Dr. Litvin, an endocrinologist. Over the next several months, Dr. Litvin unsuccessfully tried to shrink the nodule with medication. Dr. Litvin also performed two needle biopsies, which did not reveal the presence of malignant tumor cells. However, Dr. Litvin recommended that Neal undergo a surgical biopsy.

Dr. Litvin referred Neal to Dr. Nimmagadda for the surgery. The standard protocol for surgical biopsy is to remove the lobe of the thyroid containing the nodule and the isthmus, a thin piece of tissue connecting the two thyroid lobes. A frozen pathological specimen is examined while the patient is on the operating table. If it is malignant, then the surgeon removes the rest of the thyroid. If it is benign, the patient is closed. A further pathological review of the specimen is done within the next day or two and if the final pathological diagnosis is malignant, the patient is usually reoperated on to remove the rest of the thyroid tissue. The patient then undergoes radioactive iodine scanning and radioactive abatement.

On August 3, 1987, Dr. Nimmagadda removed the right lobe and isthmus of Neal's thyroid gland and, while she was on the operating table, sent the removed tissue to the hospital's pathologist, Dr. Eugene Goldman, for analysis. Dr. Goldman prepared a frozen section slide and diagnosed a "microfollicular adenoma" of the thyroid. This diagnosis meant that the tumor in Neal's thyroid was benign. Therefore, Dr. Nimmagadda closed the patient and did not remove the remainder of Neal's thyroid at that time.

On August 4, 1987, Dr. Goldman conducted additional studies and reached a final pathological diagnosis of "atypical follicular adenoma of the right lobule thyroid." Although he characterized the tumor as benign, he decided to send tissue samples to Dr. Louis Weiland, a renowned pathologist at the Mayo Clinic, for a second opinion because of the atypical features of some of the cells. The slides were sent to Dr. Weiland on August 6, 1987. Dr. Weiland examined the slides and authored a written report on August 7, 1987. Dr. Weiland concluded and advised Goldman in his report that the nodule was benign. Moreover, he noted that in endocrine tumors, the atypical features of the cells made it even more probable that the growth was benign.

Although Dr. Nimmagadda had not received the results from the Mayo Clinic, he decided to perform a second operation on Neal on August 7, 1987, to remove the rest of the thyroid. There was no emergency compelling Dr. Nimmagadda to perform the surgery on that day. He could have waited another day or two or postponed the surgery for several months. In fact, defendants' expert, Dr. DeGroot, testified that a surgeon who had knowledge of the Mayo Clinic's results would not have proceeded with the second operation.

Neal's treating physician, Dr. Stuart Fine, testified at trial that there are several reasons why the second lobe of the thyroid should not be removed if the nodule removed from the first lobe is pathologically benign. First, it would be unnecessary and unjustified surgery carrying with it the usual surgical risks of anesthesial complications, infection and operative mishaps. Second, removal of the remainder of the thyroid makes the patient permanently hypothyroid - the patient must be maintained on artificial thyroid for the rest of her life. Third, thyroid surgery risks damage to the laryngeal nerve and can leave a patient with an impaired ability to speak. Fourth, removal of the second lobe exponentially increases the risk of permanent damage to the parathyroid glands, which are very small glands located in and around the thyroid glands. These small glands regulate the body's metabolism of calcium, and damage to these glands can cause a life-threatening condition. Dr. Weiland's pathological report revealed that one parathyroid gland had already been inadvertently removed along with the first lobe of Neal's thyroid.

Generally, when cancer is diagnosed, the standard protocol is to remove the remainder of the thyroid and then to scan the body for thyroid cells that have escaped the main mass of thyroid tissue removed during surgery. If scanning is positive, the thyroid tissues must be radiated and destroyed. Dr. Levine's progress note of August 6, 1987, indicated that, prior to surgery, this was the plan for Neal. However, after receipt of the Mayo Clinic's report, Dr. Nimmagadda did not follow through with the plans for radioactive iodine scanning and ablation.

Because of the high risk of damage to the parathyroid glandsfrom the complete thyroidectomy, it is mandatory to check the patient's calcium levels post-operatively. If the levels are abnormally low, calcium replacement and massive doses of vitamin D, which helps the body metabolize the calcium, must be rendered. On August 8, 1987, Neal's calcium level was abnormally low. However, Dr. Nimmagadda did not order any calcium or vitamin D treatments and he discharged Neal.

Within a few days, Neal began suffering muscle spasm that became increasingly severe and painful. By the morning of August 13, 1987, she was in extreme agony, she couldn't move her legs, she could barely speak and had to be rushed to the emergency room. Neal was suffering from calcium tetany, a life-threatening condition caused by a lack of calcium that can affect every muscle in the body, including the heart and the muscles that control bleeding. Neal spent one day in intensive care and three additional days in the hospital until her system was stabilized. Since Neal's hospitalization, she has been on replacement calcium and either massive doses of vitamin D ...


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