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10/04/96 PATRICIA PIETRZAK v. RUSH-PRESBYTERIAN-ST.

October 4, 1996

PATRICIA PIETRZAK, INDIV. AND AS DAUGHTER AND NEXT FRIEND OF STEVEN PIETRZAK, AND CAROLINE PIETRZAK, PLAINTIFFS-APPELLANTS,
v.
RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, UNIVERSITY ANESTHESIOLOGISTS, S.C., AND DICKSON WU, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 92 L 11510. THE HONORABLE JULIA M. NOWICKI, JUDGE PRESIDING.

Rehearing Denied November 1, 1996. Released for Publication November 18, 1996.

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

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS delivered the opinion of the court:

Plaintiffs, Patricia and Caroline Pietrzak, filed a medical malpractice claim against defendants, Rush-Presbyterian-St. Luke's Medical Center (Rush), University Anesthesiologists, S.C. (UASC), and Dr. Dickson Wu, claiming that defendants negligently treated Steven Pietrzak. A jury held for defendants as to all counts. Plaintiffs appeal, seeking either a new trial or an evidentiary hearing to examine their claim that Rush's counsel committed prejudicial fraud on the court.

We affirm.

On April 1, 1992, Steven Pietrzak suffered a cardiac arrest during prostate surgery at Rush. The cardiac arrest caused severe braindamage. Dr. Wu and UASC were the attending anesthesiologists, and Dr. Wu intermittently supervised resident Dr. Michael Fox's administration of anesthesiology for the surgery.

On September 16, 1992, plaintiffs filed their complaint against defendants, alleging that they negligently caused Mr. Pietrzak's cardiac arrest. Patricia Pietrzak acted individually and as daughter and next friend of Mr. Pietrzak, and Caroline Pietrzak sought damages for loss of consortium. The complaint alleged that defendants were responsible for deficient potassium levels (hypokalemia) and blood volume levels (hypovolemia) in Mr. Pietrzak, and that either or both of these deficiencies caused his cardiac arrest.

On January 6, 1994, a jury trial commenced on the complaint. Plaintiffs presented expert testimony that hypokalemia and/or hypovolemia caused the cardiac arrest. Defendants presented expert testimony that the arrest was caused by a sudden and unpreventable event, either an air embolism or an adverse reaction to the dye used in prostate surgery. On February 18, 1994, the jury returned a verdict in favor of defendants.

On March 11, 1994, plaintiffs filed a post-trial motion requesting a new trial, and they filed an amended motion on August 15, 1994. The amended motion alleged two improprieties discovered only after the trial's completion. First, plaintiffs claimed that they were prejudiced when two jurors consulted the dictionary for definitions of "timely," a word that appeared several times in the jury instructions referring to whether defendants rendered medical care in a timely fashion. One juror did not share her dictionary definition of "timely" - "occurring at a suitable or opportune time; well-timed" - with other members of the jury. The other juror did not find the definition of "timely," but informed the jury of the following definitions: "time - measure of duration" and "duration - a limit of time." Plaintiffs moved to introduce testimony by linguistic expert Dr. Sadock on the possible prejudice that the definitions may have caused. Dr. Sadock's affidavit stated:

"The post-trial motion raises an issue whether the jury's verdict was probably prejudiced by the introduction of extraneous dictionary definitions. *** I have indicated that, because it was a legal issue, it transcends the expertise of a linguist. *** Legal expertise is needed to understand ['probably' and 'prejudice'] and apply the legal test."

The court denied plaintiffs' motion to allow Dr. Sadock's testimony. On May 5, 1995, the court issued a written opinion holding that the dictionary definitions at issue were ordinary, neutral, and nonargumentative definitions that did not improperly influence the jury, and, thus, the court denied the motion for a new trial.

The second alleged impropriety that plaintiffs discovered post-trial was an alleged fraud on the court by Rush's counsel regarding a videotape demonstration shown at trial. The two-minute videotape was shown to the jury to inform it of the sights and sounds that a medical device - a pulse oximeter - would convey to Dr. Fox during surgery. Prior to the demonstration, the following colloquy ensued:

"MR. DAVIDSON (plaintiffs' counsel): Now, Mr. Achilles [Rush's clinical engineer], who produced the lists of the equipment said he could not say which [oximeter] it was. It was one of two, and he didn't know which.

MR. SLAWKOWSKI (Rush's counsel): One of two types. Dr. Fox will testify that this was the type of ...


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