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October 24, 1996



Released for Publication December 10, 1996.

Presiding Justice Hoffman delivered the opinion of the court. Theis and O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Peter Moore, filed the instant medical negligence action against the defendants, Dr. James C. Rorig and Anchor Organization for Health Maintenance (Anchor). The matter was tried before a jury resulting in a verdict against both defendants in the sum of $6,404,952. The trial court entered judgment on the verdict and, thereafter, denied the defendants' post-trial motions. The defendants have appealed, contending the trial court erred in failing to enter a judgment notwithstanding the verdict by reason of the plaintiff's failure to prove that any negligence on their part was a proximate cause of his claimed injuries. Alternatively, the defendants argue their entitlement to a new trial on the grounds that: 1) the jury's verdict was against the manifest weight of the evidence; 2) the trial court erred in permitting the plaintiff to introduce evidence of his prior statements which were consistent with his trial testimony; 3) the court abused its discretion by permitting the cumulative testimony of five expert witnesses called by the plaintiff; and 4) the court erred in failing to grant the defendants' motion for a mistrial after the plaintiff elicited irrelevant testimony relating to Anchor's policies. For the reasons which follow, we reverse the judgment entered in this action, and remand the cause to the circuit court for a new trial.

For a long period prior to the events giving rise to this litigation, the plaintiff suffered from severe ankylosing spondylitis, a progressive, degenerative disease of the spine and joints which destroys cartilage and causes bones to fuse together. In order to correct the effects of his condition, the plaintiff underwent hip replacement surgery in 1984 and a spinal fusion in 1986. Both surgeries were successful and the plaintiff was ambulatory in 1988.

On March 30, 1989, the plaintiff was diagnosed as having an arachnoid cyst in his spinal canal which was crushing his spinal cord. Surgery to remove the cyst was performed on April 4, 1989, by Dr. Kelvin Von Roenn. According to Von Roenn, the surgery to remove the cyst was performed too late as the plaintiff's spinal cord already had been crushed. As a result of his spinal cord having been compressed by the cyst, the plaintiff can no longer walk independently and is essentially a paraplegic.

The plaintiff filed the instant action against Rorig, his primary care physician, and Rorig's employer, Anchor, charging, inter alia, that Rorig was negligent in: 1) failing to examine the plaintiff in November and December 1988; 2) failing to recognize that the plaintiff might have been suffering from a central nervous system disorder; and 3) failing to refer the plaintiff to a neurologist. The plaintiff maintained that during the course of a regularly scheduled appointment with Rorig on November 11, 1988, he complained of difficulty in sleeping due to muscle spasms in both legs and pain in his joints. According to the plaintiff, Rorig did not examine him; instead, Rorig attributed the plaintiff's insomnia to stress, advised him to stop drinking coffee, and scheduled a follow-up appointment for December 29, 1988.

The plaintiff testified that on December 29, 1988, he told Rorig that his leg spasms had gotten worse after his November 11 appointment. Rorig prescribed a sedative, but again did not examine the plaintiff or refer him to a neurologist.

The plaintiff was out of the country on business from January 8 to January 17, 1989. During that trip, the plaintiff's leg spasms worsened to a point where his entire leg would move. Additionally, he began to experience the spasms during the day as well as at night. The plaintiff testified that when he returned from his trip he attempted to call Rorig on several occasions to complain of the spasms. According to the plaintiff, he reached Rorig by phone on January 25, 1989, and informed him that the spasms were getting worse. After noting that the plaintiff was scheduled to see his rheumatologist, Dr. Bruce McLeod, the following day, Rorig told the plaintiff that McLeod could prescribe any additional medication that might be necessary.

McLeod's notes of the plaintiff's January 26, 1989, appointment reflect that the plaintiff's chief complaint was of muscle spasms in his legs with intermittent quivering which prevented him from sleeping. McLeod did not perform a complete neurological examination of the plaintiff, but he did prescribe a muscle relaxant.

The plaintiff testified that his spasms continued to get worse subsequent to his appointment with McLeod. After making several calls to Anchor, the plaintiff was given a March 7, 1989, appointment with Rorig. When the plaintiff saw Rorig on March 7, he complained of muscle spasms. Rorig noted the plaintiff's complaints and reviewed the notes from the plaintiff's appointment with McLeod. Although Rorig did not examine the plaintiff on March 7, he suspected that the plaintiff had a serious disorder of the central nervous system. Based on that suspicion, Rorig referred the plaintiff to a neurologist and ordered several tests of the plaintiff's peripheral nervous system.

On March 20, 1989, Dr. Sylvan Junger, the neurologist to whom the plaintiff was referred, performed the peripheral nervous system tests ordered by Rorig. During the course of his appointment with Junger, the plaintiff reported that he had been experiencing leg spasms since November 1988. Junger testified that, although the plaintiff's peripheral nervous system tests were negative, he found significant central nervous system involvement. On that same day, Junger informed Rorig of his findings and recommended further testing.

On March 27, 1989, the plaintiff was admitted to the hospital and underwent a series of tests which resulted in the March 30 diagnosis of an arachnoid cyst in his spinal canal and the April 4 surgery to remove the cyst. The records of the plaintiff's hospitalization contain a number of references to the plaintiff having experienced leg spasms since November 1988.

Anchor admitted the agency relationship between it and Rorig, but both defendants denied that Rorig was negligent in his treatment of the plaintiff. Rorig admitted that he did not examine the plaintiff during his visits on November 11 and December 29, 1988, but denied that the plaintiff ever complained of leg spasms during either visit. And, although he had no recollection of speaking to the plaintiff in January 1989, Rorig denied that the plaintiff ever complained of leg spasms during ...

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