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Hilgenberg v. Kazan

May 10, 1999


The opinion of the court was delivered by: Justice Gallagher

Appeal from the Circuit Court of Cook County

Honorable Donald J. O'Brien, Jr., Judge Presiding.

This is a professional negligence action brought by John Hilgenberg and his wife, Joyce Hilgenberg (plaintiffs), against Robert Kazan M.D.; West Suburban Neurosurgical Associates, S.C.; John Garino, M.D.; George Katele, M.D.; and Suburban Anesthesiologists, S.C. West Suburban Neurosurgical Associates, S.C., is the professional corporation of Dr. Kazan, the neurosurgeon who performed John Hilgenberg's (plaintiff's) surgery. Suburban Anesthesiologists, S.C., is the professional corporation of Drs. Garino and Katele, the anesthesiologists for plaintiff's surgery.

Plaintiff underwent cervical spine surgery (posterior hemilaminectomy) for a herniated intervertebral disk on October 31, 1991. Following the surgery, defendants became aware that plaintiff suffered a spinal cord injury--infarction, "central cord syndrome" or stroke. On November 26, 1996, the jury returned a verdict in favor of all defendants. Plaintiffs timely filed a posttrial motion that was denied on July 18, 1997. This appeal was timely filed against all defendants, but both issues raised by plaintiffs involve defendant Kazan's defense and not defendants Garino and Katele. We affirm.

At the time of the surgery plaintiff was a 38-year-old male who had been an insulin-dependent diabetic since early adulthood. He underwent cervical spine surgery (posterior hemilaminectomy) for a herniated intervertebral disk which was performed by Robert Kazan (defendant Kazan), M.D., a neurosurgeon. Anesthesia was administered by John Garino, M.D., and George Katele, M.D. Preoperatively, plaintiff enjoyed normal spinal cord function. The cervical spine surgery was considered low risk and full recovery was anticipated.

During the surgery, plaintiff suffered a vascular insufficiency which caused a discrete part of his spinal cord to die at the level of surgery. Anatomically the damaged spinal cord consisted of two columnar-shaped areas of dead tissue located in the center portion of the "butterfly"-shaped gray matter of the spinal cord, slightly toward the front, one column on each side of the midline. The remainder of the butterfly-shaped spinal cord gray matter, together with the white matter located toward the periphery of the spinal cord, was completely unaffected. Each column of destroyed spinal cord tissue measured approximately 3.8 centimeters (1.5 inches) in length and 2 to 3 millimeters in width. These two dead areas of anterior spinal cord gray matter extended from the level of the fifth to the seventh cervical vertebrae, with the site of surgery, therefore, near the center of the length of each column.

Plaintiffs contended at trial that during the 1991 surgery, defendant Kazan negligently overmanipulated the spinal cord in a direct, mechanical fashion. Plaintiffs argued that the direct spinal cord manipulation by defendant Kazan, combined with a second factor, low intra operative blood pressure in the patient, proximately caused the spinal cord damage in the plaintiff. Alternatively, plaintiffs argued the theory of res ipsa loquitur. It was undisputed at trial that spinal cord infarction had occurred and that the spinal cord infarction had resulted in severe motor deficits and muscle wasting in both of plaintiff's hands and forearms.

The defense theorized that plaintiff's insulin-dependent diabetes had put him at high-risk for the development of the spinal cord injury which he in fact suffered. To that end, defendants argued that it was plaintiff's diabetes, rather than the negligence of the defendants, which offered the best explanation for his damages.

Dr. Charles D'Angelo, an expert witness for defendant Kazan, is a board-certified neurosurgeon at Rush-Presbyterian St. Luke's Medical Center. During his career, Dr. D'Angelo has performed between 500 and 1,000 cervical disk surgeries. Dr. D'Angelo's opinions in this case were based in part on his review of plaintiff's medical records. Dr. D'Angelo testified that defendant Kazan did not strike or retract the spinal cord during the surgery. Based on a myelogram and CT scans done before surgery, Dr. D'Angelo concluded that defendant Kazan had ample room to remove the disk without any increased risk to the spinal cord. He also found no indication from either the operative report or the anesthesia report that defendant Kazan had retracted the spinal cord during surgery. Dr. D'Angelo testified that whenever the spinal cord is struck, there is always a characteristic and dramatic rise in the patient's blood pressure. Dr. D'Angelo reviewed plaintiff's anesthesia record and noted that nowhere on the record was there a dramatic rise in plaintiff's blood pressure. Based on the absence of a rise in blood pressure on plaintiff's anesthesia record, Dr. D'Angelo concluded that defendant Kazan had not struck or retracted the spinal cord.

Dr. D'Angelo also reviewed plaintiff's postoperative MRI scans and testified that it was impossible for defendant Kazan to have injured the spinal cord in the manner plaintiffs alleged. Dr. D'Angelo observed that there was no blood nor any bone chips or fragments of disk in the area of the surgery. In fact, nothing had been disrupted in the area of the surgery which would even hint that the surgery caused an injury to the spinal cord.

Dr. D'Angelo also testified regarding plaintiffs' res ipsa loquitur allegation, stating that "the problem that [plaintiff] suffered can happen definitely in the absence of negligence and has happened to others, including myself, without any evidence of negligence." Dr. D'Angelo based his opinion in part on a couple of his patients who suffered similar injuries after surgery.

The 60 day rule of Supreme Court Rule 218(c), requiring completion of discovery 60 days prior to trial, was waived by all parties on April 2, 1996. 166 Ill. 2d R. 218(c). On August 8, 1996, plaintiffs' counsel received defendant Kazan's Rule 213 answers identifying Dr. Ducker as a retained opinion witness and disclosing his opinions. 166 Ill. 2d R. 213. Dr. Ducker, a neurosurgeon, entered neurosurgical training in 1965 and was board certified in 1971. At the time of the trial, he practiced and taught at Johns Hopkins University in Baltimore, Maryland. Dr. Ducker has extensive experience in posterior laminectomy, the surgery defendant Kazan performed on plaintiff. Dr. Ducker performs between 15 and 20 posterior laminectomies per year.

The only proximate cause opinion disclosed by Dr. Ducker under Rule 213 was that the conduct of defendant Kazan had not proximately caused plaintiff's damages. On August 13, 1996, prior to Dr. Ducker's deposition, plaintiffs filed their motion to bar Dr. Ducker from testifying to any affirmative proximate cause opinions at deposition or trial based on defendant Kazan's Rule 213 disclosure. However, before the motion was heard, defendant Kazan updated Dr. Ducker's opinions pursuant to Rule 213 disclosing specific and affirmative proximate cause opinions. The update also indicated that Dr. Ducker would base his opinions on the article he co-authored entitled, "Posterior Cervical Laminoforaminotomy for Radiculopathy: Review of 172 Cases," which appeared in the medical journal, Neurosurgery, Vol. 33, No. 3, September 1993.

This article constituted a review of Dr. Ducker's experience with posterior hemilaminectomies, which at that time amounted to over 170 cases. Notably, Dr. Ducker wrote about a patient who underwent a posterior laminectomy procedure and later experienced a central cord syndrome similar to that experienced by plaintiff. After his patient suffered central cord syndrome, Dr. Ducker reviewed all of his cases to see if other complications had been overlooked. Dr. Ducker found that the only complication in his series was the one patient with central cord syndrome. Dr. Ducker first looked for the obvious possible causes, such as low blood pressure, trauma from the surgical instrument or trauma after the surgery. Dr. Ducker found none of these factors. Because his patient was an insulin dependent diabetic, Dr. Ducker concluded although the "exact cause of the event is unknown, vascular insufficiency in conjunction with diabetes may offer the best explanation for this occurrence."

On August 28, 1996, plaintiffs requested that certain specific medically related records of this patient be produced to plaintiffs prior to Dr. Ducker's deposition in this case. This discovery request was premised on plaintiffs' right to fairly cross-examine Dr. Ducker concerning the history of the patient in his article. Dr. Ducker refused to produce the patient's records, even if the patient's name was redacted, raising the physician-patient privilege as a bar to disclosure.

In a discovery motion on September 11, 1996, plaintiffs moved to bar Dr. Ducker from testifying as the deposition was two days away and plaintiffs had not received the medical records of Dr. Ducker's patient. Pursuant to this motion, the court effectively barred Dr. Ducker from any substantive reference to the insulin-dependent diabetic patient in his article as follows:

"Dr. Ducker is barred from relying upon, or using as a basis for any opinion, any facts and circumstances relating to the diabetic patient who suffered the central cord syndrome, as set forth in his article disclosed in discovery in this case, unless the medically related record and x-rays of said patient are timely produced prior to Dr. Ducker's deposition."

Plaintiffs' counsel took Dr. Ducker's deposition on September 13, 1996. The medically related record and X rays had not been produced. In reliance on the court order of September 11, 1996, plaintiffs did not conduct a substantive inquiry concerning the diabetic patient referred to in the article.

On October 9, 1996, defendants moved for reconsideration of the September 11, 1996, order limiting Dr. Ducker's testimony. The court adhered to its prior ruling with the minor modification that, as to the diabetic patient, Dr. Ducker would be allowed to testify at trial only "that on one occasion he has seen central cord syndrome following ...

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