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Juarez v. Commonwealth Medical Associates

December 27, 2000

CARMEN JUAREZ, CLANCY & STEVENS, JEANINE L. STEVENS, SANCTIONED ATTORNEY,
PLAINTIFFS-APPELLANTS,
V.
COMMONWEALTH MEDICAL ASSOCIATES, ALAM KHAN, M.D., TODD GRENDON, M.D., AND JOSEPH CAR, M.D.,
DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Wolfson

Appeal from the Circuit Court of Cook County. Honorable Ronald Banks and Maureen Durkin Roy, Judges Presiding.

Two trials took place in this medical malpractice action filed by plaintiff Carmen Juarez. The first trial raises the question of a trial court's authority to act once it finds a lawyer intentionally brought about a mistrial.

Judge Ronald Banks entered an order declaring a mistrial on the second day of the first jury trial, finding plaintiff's attorney, Jeanine L. Stevens (Stevens), repeatedly violated evidentiary and procedural rules as well as the court's order in limine. Judge Banks sanctioned Stevens for the mistrial by ordering her to pay all attorneys' fees and costs incurred by the defense during the trial.

Judge Maureen Durkin Roy presided over the second jury trial, which resulted in a verdict in favor of defendants Commonwealth Medical Associates, S.C. (Commonwealth), Alam Khan, M.D. (Dr. Khan), Todd Grendon, M.D. (Dr. Grendon), and Joseph Car, M.D. (Dr. Car). Judge Durkin Roy denied plaintiff's subsequent motion for a new trial.

Stevens appeals the entry of sanctions against her. The following issues are raised in relation to Judge Banks' entry of the sanctions order: (1) whether Stevens violated the trial court's order in limine; (2) whether the trial court erred in imposing monetary sanctions on Stevens in the form of payment of all opposing counsel's fees and costs accumulated during the first trial, and; (3) whether defendant's bill for fees and costs should be stricken because it was inflated and failed to identify the person or entity entitled to payment.

Plaintiff appeals Judge Durkin Roy's denial of her motion for a new trial, and raises the following issues: (1) whether the trial court erred in precluding plaintiff from asking potential jurors during voir dire if they would be able to award a specific amount of money if they found in plaintiff's favor; (2) whether the trial court erred in precluding plaintiff from introducing evidence relating to her HMO enrollment; (3) whether the trial court erred in barring plaintiff from introducing any evidence or opinions relating to plaintiff's treatment prior to April 4, 1994, and; (4) whether the trial court erred in allowing defendants to withdraw two of four Rule 213(g) expert witnesses.

We reverse Judge Banks' order requiring Stevens to pay sanctions, but affirm Judge Durkin Roy's denial of plaintiff's motion for a new trial.

FACTS

Defendants were affiliated with Commonwealth and, at various times, acted as plaintiff's primary care physician. Dr. Car was plaintiff's primary care physician through July 31, 1994, when he left Commonwealth. Dr. Khan acted as plaintiff's primary care doctor from that time until May 18, 1996, when Dr. Grendon began treating plaintiff.

Each of the doctors treated plaintiff several times for urological problems commonly associated with bladder infections. In 1992, while plaintiff was under Dr. Car's care, plaintiff was referred to Dr. Neil Friedman (Dr. Friedman), a urologist. Dr. Friedman performed a cytology (evaluation of urine for abnormal cells) in May 1992. This test showed abnormal cells were present. Three subsequent urine cytologies tested negative for abnormal cells.

Dr. Friedman tested plaintiff's urine again in October 1992, and found traces of blood. Though Dr. Friedman told Dr. Car he wanted to repeat urine cytology tests, do a bladder biopsy, and obtain a urine culture, Dr. Car referred plaintiff to a medical oncologist. Bladder cancer was ruled out as a diagnosis after several more cytologies showed negative results.

Plaintiff continued to have symptoms associated with bladder infections throughout the time Dr. Car acted as her primary care physician, but her symptoms resolved after she was given antibiotics. Dr. Khan and Dr. Grendon also treated plaintiff for urological problems. Each time, plaintiff's symptoms resolved after she took antibiotics.

In January 1998, plaintiff found blood in her urine and was referred to Dr. Michael Young, a urologist, by Dr. Melinda Ring, another Commonwealth doctor. Dr. Young diagnosed plaintiff with bladder cancer in February 1998. Plaintiff's treatment included removal of her bladder and creation of a "neobladder" from tissue taken from plaintiff's intestines.

Plaintiff filed this suit on April 14, 1998, alleging defendants' failure to adequately diagnose and treat her bladder cancer resulted in a metastasis of the disease to surrounding lymph nodes and necessitated removal of her bladder. Because the four-year statute of repose for medical malpractice actions (735 ILCS 5/13-212 (West 1998)) prohibited any allegations of negligence before April 14, 1994, plaintiff's complaint did not include allegations that negligence occurred during Dr. Car's early treatment of plaintiff's urological problems.

DECISION

First Trial - Mistrial and Sanctions

The trial court revisited issues surrounding the statute of repose several times before the first trial. Dr. Car brought a Motion for Summary Judgment in which he alleged the statute of repose barred plaintiff's suit against him. The trial court denied Dr. Car's motion and found plaintiff's allegations of negligence against him were confined to his treatment of plaintiff from April 14, 1994, until he left Commonwealth on July 31, 1994, and that the only conduct at issue in the case was that which occurred on or after April 14, 1994.

The issue was discussed again when the court ruled on the parties' motions in limine. Defendants asked the court to prohibit plaintiff from introducing any evidence concerning her medical treatment prior to April 1994. Defendants feared plaintiff would imply Dr. Car was negligent for failing to refer her to Dr. Friedman for more tests after the May 1992 cytology results were positive. Plaintiff claimed she had no intention of alleging any negligence occurred before April 14, 1994, but needed to be able to establish a factual chronology of her medical treatment.

Defendants also asked the trial court to bar any evidence of plaintiff's HMO enrollment. Plaintiff argued defendants' experts deposition testimony placed the blame for any negligence on Dr. Friedman for failing to follow-up on the May 1992 positive cytology results. Plaintiff asked the court to allow her to introduce the HMO evidence to show Dr. Friedman could not have seen her without a referral from Dr. Car.

The trial court barred plaintiff from introducing any evidence of her HMO enrollment, but ruled she would be allowed to introduce purely factual evidence relating to her pre-1994 medical treatment. Judge Banks advised Stevens she could not introduce any evidence of a deviation from the standard of care prior to April 14, 1994, and specifically told Stevens to avoid suggesting that Dr. Car was negligent for failing to refer plaintiff to Dr. Friedman for more testing.

Despite this warning, Stevens repeatedly implied Dr. Car was negligent in failing to authorize another referral to Dr. Friedman. Stevens also violated procedural and evidentiary rules during her opening argument and questioning of her first two witnesses. Judge Banks ...


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