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June 25, 1996


Appeal from the Circuit Court of Cook County. Honorable Margaret S. McBride, Judge Presiding.

Released for Publication August 13, 1996.

The Honorable Justice Burke delivered the opinion of the court: Hartman, P.j., and DiVITO, J., concur.

The opinion of the court was delivered by: Burke

JUSTICE BURKE delivered the opinion of the court:

Plaintiff Michael Cohan filed a medical malpractice action against defendants Sandra Garretson, M.D., and North Suburban Clinic (clinic). A jury subsequently returned a verdict in favor of plaintiff and the court entered judgment. Defendants filed a motion for judgment notwithstanding the verdict and a motion for reduction in judgment. The trial court denied both motions. On appeal, defendants contend that the trial court erred in denying their: (1) motion for a directed verdict; (2) motion for judgment notwithstanding the verdict; (3) "motion" for a new trial; (4) motion for a new trial solely on the issue of damages; and (5) motion for reduction of judgment. For the reasons set forth below, we affirm in part and reverse in part.

At trial, plaintiff Michael Cohan testified that on September 23, 1989, he began experiencing tightness in his chest and pain in his triceps, back of his neck and shoulders. His wife took him to the clinic where a nurse measured his blood pressure, checked his pulse and performed an electrocardiogram (EKG). Dr. Sandra Garretson met with him, advised him that his EKG appeared normal and gave him some Mylanta which provided some, but "not complete relief." He continued to experience discomfort in the backs of his arms, his neck and "somewhat in his chest," after taking the Mylanta, but he left the clinic that same day.

Plaintiff further testified that he subsequently underwent a thallium treadmill test at Humana Hospital which Dr. Garretson had recommended at their first meeting. At some point after the test had begun, he began feeling "some pains" in his calves, about which he advised the physician supervising the treadmill test. He did not experience any pain in his chest or shortness of breath during the test. After he was instructed to stop exercising on the treadmill, he was injected with thallium, and x-rays were taken. Plaintiff also testified that he saw Dr. Garretson about one week later to discuss the results of the treadmill test. Dr. Garretson informed him that the test was normal but that he had to work on "the smoking and the cholesterol levels." Dr. Garretson gave him some Nicorette gum and a prescription for cholesterol medication.

On October 22, 1989, while vacationing in Florida, plaintiff began to experience tightness in his chest. He described his sensations as "more acute" than those he experienced on September 23. He was in a cold sweat, the tightness in his chest was worse, he was dizzy and nauseous. His wife called the paramedics who took him to Engelwood Community Hospital. He was ultimately transferred to Sarasota Memorial Hospital. Upon waking, he was unable to move his left leg and realized that he had had a heart attack. He was released from Sarasota Memorial Hospital in November 1989. Upon his release from the hospital, he remained in Florida at his mother-in-law's home for about two weeks before returning to Illinois. Upon returning to Chicago, he began physical therapy with Matthew Norton Flanagan, M.D., the director of physical medicine and rehabilitation at Lutheran General Hospital.

Plaintiff also stated that as a result of the problems with his left leg, he no longer participates in many of the activities in which he previously participated; specifically hiking, biking and dancing. He returned to work with the same company but had to change jobs within the company because he could no longer climb ladders and lift heavy objects. In July 1990, he went to the emergency room of Alexian Brothers Hospital complaining of pain in his left shoulder. At that time he underwent a bicycle stress test.

Dr. Arthur Nazarian was called as a witness by plaintiff. Dr. Nazarian, a cardiologist, testified that he interpreted the results of plaintiff's October 3, 1989, treadmill test. Dr. Nazarian stated that Dr. Lescovak, also a cardiologist, supervised the test. The results of the test were sent to Dr. Garretson. According to Dr. Nazarian, a treadmill test is intended to assess a patient's heart rate and blood pressure responses to exercise and to determine whether any abnormalities in the EKG appear during exercise. He explained that after exercising on a treadmill, the patient is injected with thallium which, upon scanning, reveals the distribution of blood in the heart. A treadmill test is more accurate if the patient achieves a certain level of performance as indicated by his or her target heart rate. Dr. Nazarian further testified that plaintiff did not reach his target heart rate during his treadmill test and, therefore, "the overall conclusion was inconclusive." However, he stated that the results of plaintiff's test were "negative for ischemia by both EKG and thallium criteria at the level of stress achieved." Dr. Nazarian further stated that "the EKG did not reflect any changes that would imply that [plaintiff] was not getting enough blood supply." According to Dr. Nazarian, Dr. Tully, a radiologist, interpreted the thallium scans and advised him that they appeared normal.

Drs. Garretson, Flanagan, James Mason and Robert Mazurek were called as witnesses by defendants. Dr. Garretson testified that on September 23, 1989, plaintiff came to the clinic complaining of tightness in his chest and pain in his triceps, shoulders, and the back of his neck. Plaintiff informed her that he had experienced burning "in his mid sternum across the entire chest up into his jaw and down both arms" for over 10 hours but denied any symptoms associated with the burning sensation. Plaintiff also told her he smoked, drank alcohol and caffeine, had a family history of heart disease and had high cholesterol. According to Dr. Garretson, a family history of heart disease, smoking and high cholesterol levels are risk factors for heart disease and she therefore informed plaintiff that he was at risk for coronary artery disease or a heart attack.

Dr. Garretson further testified that she gave plaintiff a "Mylanta cocktail," consisting of Mylanta, Lidocaine and Bentyl, to determine whether plaintiff's pain was the result of heartburn. Plaintiff told her the "Mylanta cocktail" relieved his pain, thereby suggesting to her that the pain was not cardiac related.

Dr. Garretson also stated that plaintiff's blood test taken on September 23, 1993, revealed elevated levels of the enzymes lactic dehydrogenase (LDH) and serum glutamic oxaloacetic transaminase (SGOT). She explained that both LDH and SGOT are produced by the breakdown of tissue and elevations in their levels can occur after an ischemic event (decreased blood supply) such as a heart attack. An elevation in LDH would occur 48 to 72 hours after an ischemic event while SGOT levels would become elevated 72 to 96 hours after an ischemic event. A CPK enzyme test reveals the extent of damage to the heart. Dr. Garretson further stated that she did not perform a CPK test on plaintiff because she did not believe that plaintiff was having a heart attack.

Dr. Garretson also testified that she concluded that plaintiff's chest pain was not cardiac related because it had lasted over 10 hours, plaintiff's EKG, which was performed prior to her examination of plaintiff on the same day, was substantially similar to his 1988 EKG, and the "Mylanta cocktail" relieved plaintiff's pain and the typical symptoms which accompany a cardiac event; i.e., chest pressure, tightness, sweating, shortness of breath, and nausea were not present. Dr. Garretson recommended that plaintiff undergo a thallium treadmill test to evaluate his heart under the stress of exercise. Following her September 23 visit with plaintiff, Dr. Garretson contacted a cardiologist, Dr. Golbus, to confirm that she treated plaintiff appropriately. She next saw plaintiff on October 3, 1989, and advised him that the results of his treadmill test were "basically *** normal."

Dr. Flanagan testified that he first saw plaintiff on November 29, 1989. Plaintiff informed him that he had severe pain and weakness in his left, lower extremity. Dr. Flanagan further stated that plaintiff had a dropped foot which drags as he walks and which resulted from the loss of blood during his bypass surgery. Dr. Flanagan believed that plaintiff's dropped foot was permanent.

James Mason, M.D., a cardiologist, testified that plaintiff came to the Alexian Brothers Medical Center's emergency room on July 26, 1990, complaining of discomfort in his left shoulder and upper left chest, accompanied by a cold sweat. According to Dr. Mason, plaintiff had a second, small heart attack. He further stated that plaintiff's symptoms began to resolve in the emergency room without any therapy, that his " did not reveal any new changes and his initial blood test including cardiac enzymes (CPK) were negative for any problems." Dr. Mason had plaintiff perform a thallium bicycle stress test which was normal despite plaintiff achieving only 75% of his maximum heart rate. Plaintiff stopped the test due to leg fatigue. The fact that plaintiff did not reach his target heart rate during the test caused Dr. Mason "some dissatisfaction" since the test is more accurate if the patient reaches his or her target heart rate. However, Dr. Mason noted that the fact that plaintiff exercised for nine minutes was important because "anybody who exercises nine minutes or more has a very favorable prognosis irregardless [sic] of heart rate response." Dr. Mason concluded after the stress test that plaintiff was stable and therefore he did not feel that a cardiac catheterization or angiogram was necessary.

Robert Mazurek, M.D., a cardiologist, testified that he first saw plaintiff in October 1993. Plaintiff told him that he experienced pains in his legs when he walked and a cramping pain in his right calf which would "come on" with activity. Based on an objection by plaintiff, the trial court limited Dr. Mazurek's testimony to plaintiff's problems with his left leg because "a complaint of pain in the right leg is simply not relevant to these proceedings."

Defendants made an offer of proof regarding Dr. Mazurek's testimony concerning plaintiff's right leg. Dr. Mazurek then stated that he found that plaintiff had arteriosclerosis in his right leg and possibly also in his left as evidenced by reduced pulses in the lower parts of both legs; that the arteriosclerosis will have some affect on plaintiff's ability to walk long distances or engage in other activities involving the ...

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