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Tsoukas v. Lapid

June 30, 2000

KYRIAKOS TSOUKAS, PLAINTIFF-APPELLANT,
V.
SUSANNA LAPID, INDIV. AND AS AGENT, EMPLOYEE AND/OR SERVANT OF LUTHERAN GENERAL HOSPITAL, A NOT-FOR-PROFIT CORPORATION; DAVID STEWART, INDIV. AND AS AGENT, EMPLOYEE AND/OR SERVANT OF LUTHERAN GENERAL HOSPITAL, A NOT-FOR-PROFIT CORPORATION; HERBERT WIDGER, INDIV. AND AS AGENT, EMPLOYEE AND/OR SERVANT OF LUTHERAN GENERAL HOSPITAL, A NOT-FOR-PROFIT CORPORATION; THOMAS W. KORNMESSER, AND ANSU SHAH, DEFENDANTS-APPELLEES



The opinion of the court was delivered by: Justice O'brien

Appeal from the Circuit Court of Cook County. Honorable Leonard R. Grazian, Judge Presiding.

Plaintiff, Kyriakos Tsoukas, appeals a jury verdict rendered in favor of Drs. Lapid, Stewart, Widger, Kornmesser and Shah and Lutheran General Hospital, and summary judgment rendered in favor of Dr. Lawrence Bergman on plaintiff's medical malpractice complaint. On appeal, plaintiff contends the circuit court erred in: (1) barring the testimony of plaintiff's rebuttal pathology opinion witness as a violation of Rule 213 (166 Ill.2d R. 213); (2) instructing the jury on comparative negligence instead of on a duty to mitigate damages; (3) admitting certain medical evidence and barring certain other medical evidence; (4) restricting plaintiff's closing arguments; (5) barring evidence that plaintiff's health maintenance organization (HMO) would not allow his operation to take place at Northwest Community Hospital; and (6) granting summary judgment for defendant Dr. Bergman. We reverse the jury verdict and remand for a new trial; we affirm the summary judgment for defendant Dr. Bergman.

Plaintiff filed suit for medical malpractice against defendants alleging that defendants failed to diagnose or treat an acute arterial occlusion when plaintiff was seen at Lutheran General Hospital's emergency room, which failure proximately caused the amputation of plaintiff's right foot one month later, that Dr. Widger abandoned his care of plaintiff, that defendants failed to conduct proper diagnostic tests and that Dr. Bergman refused to provide medical treatment or a referral to plaintiff.

At the jury trial, testimony revealed that on December 5, 1991, plaintiff, a 57-year-old man with diabetes, slipped and fell outside his apartment complex. Plaintiff went immediately to the emergency room at Holy Family Hospital complaining of ankle pain. There, an emergency room physician diagnosed plaintiff's complaint as ankle sprain, gave him a prescription and told him to follow up with Dr. Daniels.

The following day, plaintiff returned to Holy Family Hospital. At this visit, the treating physician told plaintiff to give the injury time to heal and instructed him to elevate the foot and apply hot packs.

On December 9, 1991, plaintiff went to see Dr. Shah at his office. Plaintiff testified that on this visit Dr. Shah referred him to an orthopedic surgeon. After attempting unsuccessfully to visit the orthopedic surgeon, plaintiff returned to Dr. Shah's office. Dr. Shah again instructed plaintiff to elevate his foot and apply hot packs and sent him home. According to plaintiff, at no time did Dr. Shah tell him he needed to be admitted to the hospital.

According to plaintiff, the condition of his foot was essentially unchanged between December 5, 1991, and December 31, 1991. Thus, on December 31, 1991, plaintiff went to see Dr. Katz, an orthopedic surgeon. Plaintiff testified Dr. Katz advised him to go to the emergency room. Plaintiff went to the emergency room at Lutheran General Hospital. There, plaintiff was examined by Dr. Stewart and Dr. Widger, who concluded he had a vascular insufficiency which required a vascular consult for proper diagnosis. Subsequently, Dr. Allman, a resident with the surgical service, not the vascular service, diagnosed plaintiff's condition as chronic vascular insufficiency. To confirm his diagnosis, Dr. Allman spoke with Dr. Kornmesser, the supervising on-call vascular surgeon, over the phone. Following this telephone consultation, Dr. Allman discharged plaintiff and instructed him to elevate his foot and apply hot and cold packs and to return in three days to see Dr. Kornmeser. According to plaintiff, neither Dr. Stewart, Dr. Widger, nor Dr. Allman told him he had a serious condition or that he had circulation problems.

According to plaintiff, he then tried to see Dr. Lawrence Bergman, a physician listed with his HMO. Plaintiff's daughter testified she called Dr. Bergman's office several times without reply.

Eventually, on January 9, 1992, plaintiff saw Dr. Spiro Stamelos, a doctor at Northwest Community Hospital. Dr. Stamelos examined plaintiff and diagnosed his condition as "acute vascular occlusion" and immediately admitted him to the hospital.

On January 10, 1992, Dr. Stamelos and Dr. Constantine Tatooles performed an arteriogram. The arteriogram revealed 100 % occlusion of plaintiff's right leg. On January 11, 1992, in an attempt to salvage plaintiff's leg, Dr. Tatooles performed an embelectomy (revascularization) to clean the obstruction from the artery and to increase the flow of blood to the leg. Unfortunately, the damage to Tsoukas' leg was irreparable and, on January 28, 1992, Dr. Stamelos amputated plaintiff's foot. Plaintiff filed a complaint alleging defendants' improper diagnosis and treatment of an acute vascular occlusion, or blood clot, resulted in the amputation of his right foot.

Prior to trial, the circuit court granted summary judgment for Dr. Bergman. Following a four-week trial, the jury rendered a verdict in favor of the remaining defendants. The circuit court entered judgment on the jury's verdict and plaintiff appealed.

On appeal, we first consider the dispositive issue: jury instructions. A party has a right to have the jury instructed on his or her theory of the case if the facts in evidence or a reasonable inference from those facts supports the theory. Aimonette v. Hartmann, 214 Ill. App. 3d 314, 321, 574 N.E.2d 776, 780 (1991).

Plaintiff contends the circuit court erred in deciding that either a comparative negligence or a mitigation of damages instruction had to be given to the jury, and that it further erred when it chose to give the comparative negligence instruction rather than the mitigation instruction. Comparative negligence applies where "[t]he plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it." Restatement (Second) of Torts §465(1) (1965). Mitigation of damages imposes a duty on the injured party "to exercise reasonable diligence and ordinary care in attempting to minimize his damages after injury has been inflicted." Black's Law Dictionary 904 (5th ed. 1979). See Grothen v. Marshall Field & Co., 253 Ill. App. 3d 122, 127, 625 N.E.2d 343, 347 (1993).

In a medical malpractice action, therefore, a comparative negligence instruction is appropriate if a party presents a theory of the case in which the patient's negligence precedes or is contemporaneous with the physician's malpractice, for example, when a patient delays in seeking treatment for his or her medical condition or injury. Smith v. Perlmutter, 145 Ill. App. 3d 783, 496 N.E.2d 358 (1986) (delay in seeking treatment for heart attack). However, a mitigation of damages instruction is appropriate if a party presents a theory of the case in which the patient's negligence merely follows the physician's malpractice, for example, when a patient fails to participate in prescribed physical therapy. Fisher v. Slager, 201 Ill. App. 3d 480, 559 N.E.2d 118 (1990).

At trial, plaintiff's theory of the case was that he had formed an acute vascular occlusion (a blood clot), on or about December 5, 1991, and that Drs. Lapid, Stewart, Widger, Kornmesser, and Shah had misdiagnosed and mistreated the problem as a sprained ankle and/or chronic vascular occlusion (poor circulation), which caused the ultimate loss of his foot. The defendants' theory of the case was that, when plaintiff came to them for medical care, he was properly diagnosed with poor circulation due to diabetes and that it was plaintiff's subsequent failure to follow defendants' sound medical advice to care for that condition which contributed to the formation of a blood clot on or about January 9, 1992, and the ultimate loss of his foot.

At the jury instructions conference, plaintiff argued that if the circuit court intended to give either the comparative negligence (Illinois Pattern Jury Instructions, Civil, No. B10.03 (3d ed. 1995) (hereinafter IPI Civil 3d)) or the mitigation of damages (IPI Civil 3d No 105.08) instruction, it should give the mitigation of damages instruction because anything plaintiff may have done to contribute to his own injury occurred after he sought treatment from the defendants, not before. The circuit court gave the comparative negligence instruction, but not the mitigation of damages instruction. Because plaintiff's theory of the case supported a mitigation of damages instruction and defendants' theory of the case supported a comparative negligence instruction, the court should have given both instructions.

Nevertheless, defendants contend the circuit court properly refused to give IPI Civil 3d No. 105.08 because the "Notes on Use" accompanying the instruction state, "[t]his instruction applies only to those instances where the defendant claims that the plaintiff has failed to mitigate his damages" (emphasis added). Thus, defendants argue the instruction would have been improper because it was plaintiff who requested it based upon his claim that anything he may have done to contribute to his own injury occurred after he sought treatment from the defendants while defendants "consistently maintained that plaintiff's own negligence was a proximate cause of his injury." We disagree.

The suggestion in the "Notes on Use" that only defendant's theory of the case can support a mitigation of damages instruction notwithstanding, plaintiff had the right to have the jury instructed on his theory of the case. Because plaintiff's theory of the case acknowledged the possibility that he may have done something which contributed to his injury after he sought treatment from defendants, plaintiff was entitled to a mitigation of damages instruction.

Further, the court should have instructed the jury as to the applicability of the mitigation of damages and comparative negligence instructions. Specifically, the circuit court should have instructed the jury that if it found that plaintiff's vascular occlusion occurred on or about December 5, 1991, then it should apply the mitigation of damages instruction (IPI Civil 3d No. 105.08), but that if it found that plaintiff's vascular occlusion occurred ...


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