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Reardon v. Bonutti Orthopaedic Services

September 29, 2000

MARC REARDON, PLAINTIFF-APPELLANT,
v.
BONUTTI ORTHOPAEDIC SERVICES, LTD., AND TIMOTHY GRAY, M.D., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Effingham County. No. 95-L-55 Honorable John P. Coady, Judge, presiding.

The opinion of the court was delivered by: Presiding Justice Goldenhersh

Marc Reardon (plaintiff) appeals the February 27, 1998, judgment entered by the Effingham County circuit court. The trial court entered the judgment following a jury verdict against plaintiff and for Bonutti Orthopaedic Services, Ltd., and Timothy Gray, M.D. On appeal, plaintiff claims that the trial court erred in refusing to grant plaintiff a new trial where the jury's verdict was contrary to the manifest weight of the evidence. For the reasons that follow, the judgment is vacated and the cause is remanded for a new trial.

On July 26, 1995, plaintiff filed a four-count complaint against Bonutti Orthopaedic Services, Ltd., St. Anthony's Memorial Hospital in Effingham (St. Anthony's), Peter Bonutti, M.D., and Timothy Gray, M.D. (defendant). St. Anthony's filed an answer on August 21, 1995, and the remaining defendants filed their answers on September 22, 1995. On November 12, 1996, plaintiff filed a voluntary motion to dismiss the claim against Dr. Bonutti, and the trial court granted the motion on December 6, 1996. Plaintiff filed an amended four-count complaint. Drs. Bonutti and Gray and Bonutti Orthopaedic Services filed their answers on January 2, 1997, and St. Anthony's filed its answer on January 9, 1997. On April 11, 1997, St. Anthony's filed a motion for summary judgment as to counts II and III. Plaintiff responded by filing a motion to voluntarily dismiss, without prejudice, counts II and III on May 1, 1997, which the trial court granted. On February 24 through 26, 1998, a trial was held against Dr. Gray and Bonutti Orthopaedic Services, Ltd. The jury returned a verdict in favor of those defendants and against plaintiff. The trial court entered the judgment on February 27, 1998. After the trial, plaintiff obtained new counsel, and on March 27, 1998, the trial court granted plaintiff an extension of time to file his posttrial motion so his new counsel could review the proceedings. On May 18, 1998, the parties agreed to grant plaintiff an additional two-week extension to file his posttrial motion. An extension was again granted on May 29, 1998, until June 30, 1998, because plaintiff made a motion to interview the jurors. On July 1, 1998, the trial court granted plaintiff's motion to interview the jurors and gave an additional 30-day extension. On July 30, 1998, the trial court granted one last extension to plaintiff until August 6, 1998. Plaintiff filed his posttrial motion on August 6, 1998, requesting a judgment notwithstanding the verdict, or in the alternative, to grant a new trial because the jury verdict was against the manifest weight of the evidence. The defendants responded on August 24, 1998. A hearing was held on October 2, 1998, and the trial court denied plaintiff's posttrial motion on the same day. Plaintiff filed a timely notice of appeal.

I. FACTS

On January 10, 1995, plaintiff suffered multiple fractures to his right foot. Plaintiff's most severe fracture was of the calcaneus (heel) bone. The fracture was described by all the physicians and nurses who examined plaintiff as highly comminuted, or broken into multiple pieces. The calcaneus does not break along lines as other bones; rather, it shatters when suffering a trauma. In this case, the heel bone was shattered and smashed up into the foot. Testimony from all parties indicated that even if the doctors could fuse the pieces back together, plaintiff would suffer stiffness and a lack of ability to engage in high-intensity activities at the level that he had before the trauma.

At the trial, plaintiff called the nurses who attended to him at St. Anthony's. The two nurses whose testimony was of note were Deborah Niemerg and Julie Werner. Nurse Niemerg worked the 7 a.m.-to-3 p.m. shift on January 12, 1995, and attended to plaintiff. She stated that on January 12, 1995, plaintiff's toes were swollen but that they did blanch well. (Blanching occurs when one applies pressure to the skin and the skin whitens and upon the release of the pressure, the skin returns to its normal color. How swiftly the skin responds to this indicates the level of circulation in that part of the body.) Nurse Niemerg believed that plaintiff could wiggle his toes on January 12, 1995.

Nurse Niemerg worked the 7 a.m.-to-3 p.m. shift on January 13, 1995, also. Her nursing notes were not in the chart obtained from St. Anthony's, so her testimony as to the events on January 13, 1995, was from her independent recollection. She testified that plaintiff's morphine intake during her shift on January 13, 1995, was nearly double his intake on January 12, 1995. (Plaintiff controlled his own narcotic painkiller intake because of the pain associated with such a severely comminuted calcaneus.) She stated that plaintiff's foot still blanched but that she did not believe the response was as good as on January 12, 1995. Plaintiff developed blisters on the top, sides, and bottom of his foot. Nurse Werner relieved Nurse Niemerg at 3:30 p.m. Nurse Niemerg communicated her concerns to Nurse Werner. She then called defendant's office sometime between 3:30 p.m. and 3:45 p.m. and talked to office personnel. Nurse Niemerg saw defendant one time on the morning of January 13, 1995. She testified that she listed plaintiff's pain as a five on a scale of one to ten. She noted that she became more and more concerned about plaintiff's condition as her shift progressed on January 13, 1995, because the foot was turning a deeper purple color and the blanching was not as responsive.

Nurse Werner worked the 3 p.m.-to-11 p.m. shift on January 13, 1995. As with Nurse Niemerg's notes, Nurse Werner's notes disappeared from St. Anthony's chart, and she testified from her independent recollection. Upon relieving Nurse Niemerg, Nurse Werner received a report on plaintiff's condition, and the two went in to examine plaintiff's foot together. There was now a whitish-gray patch of skin on the top of plaintiff's foot. After her examination, Nurse Werner asked Nurse Niemerg to call and inform defendant of plaintiff's condition. Nurse Niemerg informed Nurse Werner that she had been told that defendant would see plaintiff the following morning. Nurse Werner continued to monitor plaintiff because his circulation worsened.

At 5:10 p.m. on January 13, 1995, Nurse Werner called defendant and personally informed him of the poor blanching of plaintiff's toes, the poor circulation, and the whitish-gray patch on his foot. Defendant told her to keep plaintiff's foot elevated and iced and that he would see plaintiff in the morning. Nurse Werner claims that she called defendant three more times before she and Nurse Mix, another nurse on duty, called defendant at 6:20 p.m. Defendant denies receiving five calls from the nurses between 5:10 p.m. and 6:20 p.m. on January 13, 1995, and only acknowledges two phone calls. During the 6:20 p.m. call, Nurse Werner asked defendant to come and examine plaintiff in person after Nurse Mix, a registered nurse on another floor that had at least seen plaintiff's foot beginning on the morning on January 13, 1995, told defendant about the perceived change in the condition of plaintiff's foot.

At this point, defendant requested a Doppler study, a test that checks the circulation of the arteries and veins, and he also requested that Dr. Inder Khokha, a vascular surgeon, see plaintiff. Nurse Werner informed defendant that the Doppler technician was not present at the hospital and that Dr. Khokha was in his car en route to Chicago. Defendant then requested that plaintiff be transferred to a hospital with a vascular surgeon; however, before the transfer order went through, a technician arrived, and the Doppler study was conducted. Defendant asked for the technician to call him when the results of the Doppler study were known. On cross-examination Nurse Werner stated that she listed plaintiff's pain as a six on a one-to-ten scale and that plaintiff could move his toes. On redirect examination, Nurse Werner stated that plaintiff could wiggle his toes; however, she stated that he did not want to do so because the pain was too intense.

Dr. Khokha was contacted by a nurse at 6:42 p.m. on January 13, 1995, at the request of defendant regarding his seeing plaintiff. Dr. Khokha informed the nurse that he was unavailable because he was en route to Chicago. Later, defendant contacted Dr. Khokha and discussed plaintiff's poor circulation. Dr. Khokha agreed with defendant's decision to conduct vascular tests and to transfer plaintiff to a hospital with a vascular surgeon. After having the lab technician discuss the results of the tests conducted on plaintiff's foot, Dr. Khokha explained the circulation of the foot. The foot has two main arteries, doralis pedis and tibial posterior. These main arteries branch out into digital arteries and then to capillaries that deliver oxygen to the muscle cells. Dr. Khokha testified that the results of the test demonstrated that plaintiff had adequate profusion (blood flow) at the ankle but that the profusion was poor at the toes. Therefore, Dr. Khokha surmised that plaintiff's problem was at the digital artery or capillary level between the ankle and the toes. Dr. Khokha opined that defendant took the appropriate step of transferring plaintiff to a facility with a vascular surgeon. At approximately 9 p.m. on January 13, 1995, plaintiff was transferred from St. Anthony's to St. John's Hospital in Springfield (St. John's).

The first physician to see plaintiff at St. John's was Dr. Ashraf Mansour, a vascular surgeon. Dr. Mansour received a history from plaintiff and conducted a physical examination of plaintiff's foot. Dr. Mansour stated that plaintiff's ankle was receiving circulation but that his toes were not. He ordered a Doppler study, which confirmed his assessment that plaintiff had good circulation at the ankle level but no circulation at the toes. Dr. Mansour testified that at this time his impression was that plaintiff was suffering from compartment syndrome. Compartment syndrome is an increase in pressure within the compartments in which muscles are contained. Muscles are surrounded by tissue that keeps them in compartments, and when the pressure inside these compartments increases to a certain level, the expansion begins to pinch the arteries. When the pressure is great enough, the arteries can close, causing blood flow to stop. Eventually, if not relieved, compartment syndrome leads to muscle necrosis or death.

Because Dr. Mansour opined that the compartment syndrome was a result of a shattered calcaneus, he believed that an orthopaedic physician would be better able to treat the compartment syndrome, and he contacted Dr. Timothy Lang, a resident orthopaedic surgeon at St. John's. Dr. Lang agreed with Dr. Mansour's diagnosis. They decided to contact Dr. John Fisk, resident supervisor and orthopaedic surgeon at St. John's. Dr. Mansour conceded on cross-examination that no compartment pressures were taken. (All the physicians in this case testified as to an instrument that can definitively inform the physicians if there is increased pressure in a compartment.) However, Dr. Mansour stated that when a patient suffers from the clear clinical signs of compartment syndrome, the device is not necessary. The clinical signs entail the "five Ps." Physicians check for: (1) pain out of proportion, (2) pulselessness, (3) pallor, (4) parathesia, and (5) pain with passive movement. Dr. Mansour's notes indicated that he did not detect arterial damage upon his physical exam. Also, he noted that the blood flow in the foot was decreased, not absent. Although his notes indicated that plaintiff could not move his great toe, his personal recollection was that plaintiff could not move any of his toes. At 12:10 a.m. on January 14, 1995, Dr. Mansour wrote his notes but did not recommend procedures for surgery, such as that no food be taken. Dr. Mansour admitted that these orders were inconsistent with a recommendation of fasciotomy, the surgical procedure to relieve the compartment pressures, but that the diagnosis was a working one and subject to modifications upon consultation with an orthopaedic surgeon. Dr. Mansour testified that plaintiff suffered from compartment syndrome and that the proper procedure was a fasciotomy.

Dr. Lang was paged by Dr. Mansour shortly after midnight on January 14, 1995. Dr. Mansour talked to Dr. Lang over the phone and told him that plaintiff needed an orthopaedic evaluation and that he suspected a compartment syndrome that might require surgery. Dr. Lang examined plaintiff's x rays and noted that plaintiff had a severe calcaneus fracture. He took plaintiff's history, during which plaintiff informed him that he was worried about his foot because he suffered increased pain during the morning of January 13, 1995. Dr. Lang's examination revealed swelling, hemorrhagic fracture blisters, and branching necrosis of the skin on the top of the foot. Dr. Lang noted that the bottom surface of plaintiff's foot was swollen and that a palpation of the calcaneus and an extension of the toes caused plaintiff severe pain. Dr. Lang believed that plaintiff was able to actively (by himself) move his toes by using the muscles in his calf and not those in his foot. Dr. Lang also stated that when he passively moved plaintiff's toes, plaintiff had significant ...


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