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07/09/97 CONSTANCE RUPERD AND STEPHEN RUPERD v.

July 9, 1997

CONSTANCE RUPERD AND STEPHEN RUPERD, PLAINTIFFS-APPELLANTS,
v.
ROBERT A. RYAN, AND PLASTIC AND COSMETIC SURGERY ASSOCIATES, S.C., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 92--L--67. Honorable Patrick N. Lawler, and William D. Block, Judges, Presiding.

Released for Publication August 8, 1997.

The Honorable Justice Colwell delivered the opinion of the court. Doyle and Thomas, JJ., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Plaintiffs, Constance and Stephen Ruperd, appeal the jury's finding defendant, Dr. Robert A. Ryan, not guilty of medical malpractice pertaining to Constance Ruperd's (Connie's) foot surgery. On appeal, the plaintiffs contend that the trial court erred in not granting their motion for a directed verdict at the close of the plaintiffs' evidence. In the alternative, the plaintiffs argue that they are entitled to a new trial because (1) the court erroneously admitted certain evidence; and (2) the court administered erroneous jury instructions that prejudiced the plaintiffs. We affirm.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

Dr. Ryan testified that he first met Connie in 1988. Dr. Ryan stated that at that time he excised warts on Connie's face and her elbow. Dr. Ryan admitted, however, that the 1988 reports and charts indicated that "moles," not warts, were excised at that time. Dr. Ryan stated that Connie returned to his office on January 18, 1990, requesting information about breast augmentation. Dr. Ryan said that he scheduled the surgery for January 22, 1990, and gave Connie a consent form. Dr. Ryan testified that he did not remember whether he discussed any alternatives to the plantar wart surgery with Connie, but acknowledged that his records did not indicate that any alternatives were discussed.

Dr. Ryan stated that on January 22 Connie arrived for the surgery and signed the consent form after acknowledging that she had read it. Dr. Ryan summarily described the consent form Connie signed and admitted that the word "wart" did not appear on the page, although the form did go into detail regarding the breast augmentation. Dr. Ryan indicated that "fulgration 'R' plantar wart" was handwritten at the top of the consent form, and, although there was no date next to the notation, he believed it was written on January 18 before Connie was given the consent form.

Dr. Ryan testified that Connie's next office visit took place on February 1, 1990. Dr. Ryan stated that his report indicated that the plantar aspect of Connie's right foot was sore but healing well and that Connie should return in one month.

According to Dr. Ryan's records, Connie returned on February 23 and saw Dr. Kontrick. The records report that the "wounds on ball of feet is [sic] clean, healing is slow. Patient was given an estimate for return to work on the 19th of next month."

Dr. Ryan testified that Connie's next office visit was on March 26, 1990. He stated that on March 26 Connie's foot was "swollen red and shiny" and that her toe was healing very well. Dr. Ryan said that he diagnosed reflex sympathetic dystrophy (RSD) of her foot at that time and explained the condition to her. Dr. Ryan testified that RSD is a difficult syndrome to understand and that basically it is a syndrome that "no one can explain" but that in most cases, given some time, it would resolve itself. Dr. Ryan "fitted" Connie for a Jobst stocking and told her to return in two weeks.

Dr. Ryan testified that he saw Connie next on March 29, 1990, at which time he performed an ankle block on Connie's foot. Dr. Ryan said that to "the best of his knowledge" he dictated a record of the ankle block, but acknowledged that no record existed regarding that visit or the block. Dr. Ryan said also that Connie visited his partner, Dr. Kontrick, on March 30, 1990, but that the records did not indicate that visit took place either.

Dr. Ryan stated that the last time he saw Connie was when Connie was at Victory Memorial Hospital. Dr. Ryan denied telling Connie that she should go to the Lake Forest Pain Clinic instead of going to another hospital in Milwaukee.

Dr. Ryan also testified regarding the plaintiffs' allegations that he intentionally engaged in certain conduct with the attempt to obstruct justice. Before trial, the plaintiffs moved for judgment on the grounds that Dr. Ryan obstructed justice by altering Connie's medical records, soliciting Dr. Herman to alter Connie's records, exerting peer pressure upon the plaintiffs' expert, and attempting to obtain Connie's psychological records. At trial, Dr. Ryan offered the following explanations for his conduct.

First, Dr. Ryan explained why he had two different clinical data sheets regarding Connie's condition. Dr. Ryan stated that a report was transcribed from his dictation tape around March 26, 1990. Dr. Ryan said that when he later reviewed the report he noticed that it was partially inaccurate. Accordingly, he redictated Connie's January 18, January 22, February 1, February 23, March 5, and March 26 entries. Dr. Ryan acknowledged that one of the reasons he redictated the entries was because he thought Connie was angry with him and that she might file a lawsuit against him. Dr. Ryan stated that the last time he made any changes or corrections on the clinical data sheets was January 10, 1992.

Dr. Ryan also explained the changes he made on Connie's clinical data sheet. Regarding Connie's office record for her January 18 visit, Dr. Ryan said that he wrote, "Cheryl, give her the entire packet," and "redone and not the original but sent anyway" on Connie's records. Dr. Ryan said that the packet referred to a folder that was given to patients having surgery and concerned the issue of informed consent. He then acknowledged that Cheryl was not working for him in 1990 and that it would have been "Pam" who would have given Connie the folder.

Dr. Ryan stated also that he added an entry to the January 18 office visit. Dr. Ryan said that he added the notation, "plan to do the plantar warts at the same time the augmentation is done. Complications of painful scars, recurrence, et cetera, were discussed." Dr. Ryan admitted that the notation referred to the issue of informed consent.

Dr. Ryan then testified that he added the words "severe pain" and "[the foot] is slightly warm" to the March 26 entry, as well as noting, "I'm sure the patient is developing reflex sympathetic dystrophy, i.e. causalgia of the foot." Finally, Dr. Ryan stated that he added, "I have referred [Connie] to Dr. Haq for possible sympathetic block," which was not included on Connie's original clinical data sheet.

Second, Dr. Ryan explained his reasons for asking other doctors to telephone Dr. Donald Bolt, the plaintiffs' expert in the case. Dr. Ryan testified that he telephoned Dr. Ellenby prior to the discovery deposition of Dr. Bolt. Dr. Ryan reported that in his conversation with Dr. Ellenby he asked Dr. Ellenby to telephone Dr. Bolt and ask Dr. Bolt "if he had seen all of the records in this case or if he had seen the patient in this case." Dr. Ryan said that he also called Dr. Daniel Mann, a plastic surgeon in Florida, before Dr. Bolt's deposition and asked him to call Dr. Bolt and ask whether he had seen the records or examined the patient in the case. Dr. Ryan stated that he did not speak with Dr. Ellenby or Dr. Mann again before Dr. Bolt's deposition.

Dr. Ryan next testified that he wrote a letter to Dr. Timothy Lynch, a psychologist, on March 6, 1992, asking for a "summary" of his findings concerning Connie. Dr. Ryan said that he never spoke to or received anything from Dr. Lynch. Dr. Ryan said that he then wrote a letter to Dr. Abderholden asking him to write to Dr. Lynch to request a summary. Dr. Ryan stated that he did not believe that Dr. Abderholden ever wrote the letter. Dr. Ryan acknowledged that at the time he wrote the letters he was already a defendant in the lawsuit.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme ...


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