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Becht v. Palac

September 26, 2000

STEVEN BECHT, PLAINTIFF-APPELLEE
v.
SUSAN PALAC, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 93 L 05686 The Honorable Michael J. Kelly, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins.

Not released for publication.

Modified December 12, 2000

 OPINION MODIFIED UPON DENIAL OF REHEARING

The plaintiff, Steven Becht, sued the defendants, Dr. Susan Palac and Dr. Edward Lisberg, for medical negligence. Specifically, Becht alleged that the defendants negligently prescribed steroidal medication that caused him to develop a bone disease called avascular necrosis. The jury found Dr. Palac liable and awarded Becht damages in the amount of $1,500,000. Dr. Lisberg was found not liable. Dr. Palac filed a posttrial motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion.

Dr. Palac now appeals, arguing that: (1) the plaintiff's evidence on causation was so insufficient and unreliable that she is entitled to a judgment notwithstanding the verdict or a new trial; (2) the trial court erred by allowing the plaintiff to elicit opinions never disclosed pursuant to discovery Rule 213 (177 Ill. 2d R. 213); (3) the trial court erred by allowing misstatements of evidence during the plaintiff's closing argument; and (4) the trial court abused its discretion by failing to send certain demonstrative exhibits to the jury during its deliberation.

For the reasons that follow, we affirm the trial court's decision.

BACKGROUND

On September 17, 1990, the plaintiff, Steven Becht, a 27-year-old UPS driver, went to MacNeal Hospital's emergency room complaining of a headache and double vision. He reported that he fell and hit his head two nights earlier. The emergency room physician ordered a CT scan and called Dr. Palac, a neurologist, to examine Becht.

The CT scan of his brain showed multiple "small petechial hemorrhages" (small areas of bleeding) rimmed with edema or swelling --otherwise his neurological exam appeared normal. Dr. Palac believed that the fourth cranial nerve, which controls eye movement, was injured and causing Becht's double vision. The controversy in this case revolves around her prescription of Decadron, a corticosteroid she recommended to decrease his brain edema. She prescribed the following initial dose: 4 milligrams, 3 times a day for 5 days.

Becht returned a week later for a follow-up on September 24, 1990. He still had double vision but no new symptoms. So, Dr. Palac did not prescribe any Decadron. However, the next day she prescribed a "weaning" dose of Decadron over the phone because Becht complained of some stiffness in his hips and legs. She did not recall prescribing this second dose, but she acknowledged that the pharmacy records indicated a phone prescription for Decadron. Becht took this "weaning" dose for nine consecutive days (September 25 through October 3) at decreasing doses of 12 milligrams each day for the first three days, 8 milligrams per day for the next three days, and 4 milligrams per day for the final three days.

Upon Dr. Palac's referral, Dr. Mizen, a neuro-ophthalmologist, examined Becht on September 27, 1990, and diagnosed a right fourth cranial nerve palsy and possibly left fourth nerve palsy. He did not prescribe any medications and advised that fourth nerve palsies normally resolve without treatment in 6 to 12 weeks. Dr. Palac saw Becht two more times after this and, although his double vision was less, it still had not completely resolved. Dr. Palac's impression was traumatic, slowly resolving fourth nerve palsies, but she testified that she was worried that the nerve had been affected in the brain stem. She sent Becht for an MRI to get a better picture of the brain stem than a CT scan. She wrote that if the MRI was within normal limits, she would return him to Dr. Mizen.

The MRI was taken on November 20, 1990, and its findings are subject to conflicting testimony. The MRI showed other areas of hemorrhage not previously seen on the CT scan. In Dr. Palac's view, these were new areas of bleeding, confirming that this was a progressive injury which justified her initial dose of Decadron. In contrast, Becht's expert, Dr. Margulies, testified that the MRI showed no new bleeding and merely showed the subtle footprints from the original injury.

In any event, Becht did not return to see Dr. Palac and Dr. Mizen took over his care. Becht's last visit to Dr. Mizen was November 26, 1990, and his double vision still had not cleared. His double vision gradually resolved by the end of December 1990 and he was able to return to work at that time.

Becht received his next dose of steroids seven months later from co-defendant Dr. Lisberg for his asthma. On May 11, 1991, Dr. Lisberg prescribed prednisone at 60 milligrams a day for seven days. When Becht called Dr. Lisberg after taking the prednisone dose complaining of leg and hip pain, Dr. Lisberg did not represcribe a weaning dose of prednisone. Instead, he prescribed trisilate, a type of aspirin.

Two and a half months after this final dose of steroids, Becht saw Dr. Daniel Hirsen, a rheumatologist, complaining of hip and leg pain on August 2, 1991. Dr. Hirsen diagnosed Becht with avascular necrosis (AVN) of both hip joints. AVN means that the blood supply to the affected bone has stopped, which causes the heads of the femur to die due to lack of oxygen. It is undisputed that steroids can cause AVN. Subsequently, the plaintiff suffered hip replacement surgery on both hips.

Becht sued Dr. Palac and Dr. Lisberg for negligently prescribing medication that caused his AVN. At trial, plaintiff called three expert witnesses: Dr. Gershwin, Dr. Forberg and Dr. Margulies. Additionally, he called Dr. Milgram, an orthopedic surgeon who performed replacement surgery on his left hip. Dr. Milgram was also called to testify by Dr. Palac in her case in chief.

Becht's first expert, Dr. Gershwin, a professor of medicine and chief of allergy and immunology at the University of California at Davis, had published a number of books and papers discussing asthma and treatment of steroids. Based on his experience, literature reviewed and practice, Gershwin testified that corticosteroids caused Becht's AVN. He stated that Decadron is a much more potent drug than prednisone: one 5-milligram tablet of prednisone is equivalent to .75 milligrams of Decadron. When asked whether it was the Decadron or prednisone which caused the AVN, he replied that it was both -- they were intertwined. He based this on the time frame in which Becht developed AVN: after taking the Decadron, 9 months later he received prednisone, and 2 ½ months after that he was diagnosed with AVN. Although he could not separate the two drugs, Gershwin believed that if Becht had only gotten the prednisone, he would not have developed AVN. He conceded that it would be uncommon for someone to develop AVN after taking just Dr. Palac's prescription of Decadron, but he also testified, "I think it's possible, but I can't separate them (the Decadron and prednisone)."

Becht's next expert, Dr. Paul Forberg, an orthopedic surgeon, testified that the total dosages of steroids that Becht received was sufficient to cause AVN. He based this opinion on his experience and literature that he reviewed. Based on a reasonable degree of medical certainty, he testified that the dosage of Decadron prescribed by Dr. Palac "at least contributed, may have caused some degree of avascular necrosis." He based this opinion on literature reviews that short courses of steroid therapy, repeated with periods of time with no steroid administration, predisposes a patient to develop AVN. He believed that Becht fit this profile because there were three periods of time Becht took steroids. Forberg testified that, from the time of steroid dose, patients usually develop AVN within two years. He also surmised that the aches and pains Becht experienced after Dr. Palac's initial dose may well have been avascular pain as a result of AVN. He stated that he could not be 100% certain, but it "follows the picture." Forberg believed that there was some contribution from all three doses of steroids -- the two doses prescribed by Dr. Palac and the one dose of prednisone by Dr. Lisberg.

Becht's last expert, Dr. Sheldon Margulies, received his board certification in neurology in 1979. He had been staff neurologist and assistant professor of neurology at Johns Hopkins University Hospital since 1990. Dr. Margulies testified that Dr. Palac not only breached the standard of care, but that her prescription of Decadron proximately caused Becht's injury. Based on the medical records and his experience, he believed that Becht had suffered a very mild head injury, with no active bleeding. His neurological signs were normal except for the double vision. Specifically, Dr. Margulies agreed with Dr. Palac's assessment that a fourth cranial nerve palsy caused Becht's double vision. However, unlike Dr. Palac, he did not believe that the fourth nerve was injured within the brain stem at the nucleus. He opined that the most common cause of fourth nerve palsy is an injury to the peripheral nerve after it leaves the brain stem. Based on the CT scan and MRI, Margulies believed that Becht's head injury caused the tentorium, a tough canvas membrane outside the brain stem, to cause a "judo chop" to the fourth cranial nerve. This resulted in his double vision. He opined that Becht had no significant edema that justified prescribing Decadron. He concluded that Dr. Palac breached the standard of care by prescribing Decadron to a neurologically normal patient and exposing him to the risk of AVN. Additionally, he stated that Dr. Palac breached the standard of care by represcribing Decadron for aches that could go away with aspirin.

Dr. Margulies further testified that the Decadron caused Becht's AVN. He based this opinion on several factors. First, he received dosages of medication "known" to cause AVN. He believed that the timing was appropriate, because Becht developed AVN about one year after exposure to Decadron. Lastly, the bilateral nature of Becht's AVN suggested a blood-borne problem related to medication. On cross-examination, Dr. Margulies conceded that it would be uncommon for someone to develop AVN by taking the Decadron dosage prescribed by Dr. Palac. He identified one study that he relied upon, A Cross Study Evaluation of Association between Steroid Dose and Bolus Steroids and Avascular Necrosis of Bone, by David T. Felson and Jennifer J. Anderson in the journal The Lancet.

Dr. James Milgram, the orthopedic surgeon who replaced Becht's left hip, testified in both Becht's and Dr. Palac's case in chief. He identified himself as an expert on the causal relationship between steroid treatment and AVN because he reviewed a lot of literature on the subject. He opined that Becht's AVN was probably "idiopathic" --meaning no known cause. He believed that it was unlikely that Dr. Palac's dosage caused or contributed to Becht's AVN. However, he stated that the length of time from the initial prescription of steroids to the diagnosis of the disease falls within the pattern of steroid-induced AVN.

In addition to Dr. Milgram, Dr. Palac called three other physicians to testify: Dr. Daniel Hirsen, Dr. Michael Jerva and Dr. Thomas Zizic. Dr. Hirsen, who first diagnosed Becht's avascular necrosis, received his board certification in internal medicine and rheumatology. Relying on Becht's medical records and a reasonable degree of medical and surgical certainty, he agreed with Dr. Milgram's assessment that Becht's AVN was "idiopathic." He opined that Becht's disease was unrelated to steroids because Becht only received high dose steroids for two weeks. He explained that a patient must take high dose steroids for at least one or two months to develop AVN. He concluded that the dosage in Becht's case was high enough; it just was not long enough to produce AVN.

Dr. Palac's next expert, Dr. Jerva, was a neurological surgeon who chaired the department of neurosurgery at Mercy Hospital and was a professor of neurosurgery at the University of Illinois. He has published numerous articles in the field of neurosurgery and neurology. Based on Becht's medical records, Dr. Jerva concluded that Becht had sustained a severe and progressive head injury. If Dr. Palac had not prescribed Decadron, he believed that Becht could have suffered irreversible damage even to the point of coma and death. He opined that there was no reason to believe that Decadron resulted in Becht's AVN. ...


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