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Kotvan v. Kirk

March 30, 2001


Appeal from the Circuit Court of Cook County No. 95 L 8123 The Honorable Frank Orlando, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

Plaintiff, Millie Kotvan, brought this action for medical negligence against defendants, Kent Kirk, an ophthalmologist, and Kirk Eye Center (KEC). Plaintiff alleged that Dr. Kirk failed to timely diagnose and treat an infection that plaintiff developed after cataract surgery. The jury returned a verdict in favor of the defendants. The trial court denied plaintiff's posttrial motion.

On appeal, plaintiff contends that: (1) the jury's verdict was against the manifest weight of the evidence; (2) the trial court erred by finding that the defense expert, Dr. Rubenstein, was qualified to testify regarding plaintiff's eye infection; (3) the trial court erred by barring testimony concerning plaintiff's blood tests as undisclosed opinions in violation of discovery Rule 213 (134 Ill. 2d R. 213); (4) certain evidentiary rulings misled the jury and prejudiced the plaintiff's case; and (5) the trial court abused its discretion by questioning the venire before it was impaneled.


On May 11, 1993, around 8:30 a.m., Dr. Kirk performed cataract surgery on plaintiff's left eye, which involved the implantation of an intraocular lens. The surgery was performed at KEC. Before the operation, plaintiff signed a consent form explaining that cataract surgery may result in loss of vision, reduction of corneal clarity, infection and retinal detachment.

The following morning, May 12, 1993, around 8 a.m., Dr. Kirk saw plaintiff for her first postoperative examination. At this visit, plaintiff reported no pain, nausea or vomiting. Kirk examined plaintiff's eye with a slit lamp and checked her retina and blood vessels in the back of her eye. Plaintiff's visual acuity at that time measured 20/60, but her intraocular pressure (IOP) was 38, with 10 to 21 being the normal range. Kirk performed a paracentesis tap to lower the IOP. To do this, Kirk pressed a needle next to the cataract surgery incision on the cornea, releasing fluid out of the eye. Plaintiff's IOP was subsequently reduced to four.

After the follow-up exam, plaintiff vomited in the waiting room as she waited for the KEC van to take her home. Her sister, Nicholina Cantalupo, was with her. Plaintiff told a KEC technician, Kathleen Ernst (now known as Kathleen Ernst Zver), that she felt fine and left with her sister. Plaintiff vomited again in the van on the way home. Plaintiff's sister, Nicholina, called KEC several times throughout the day to report plaintiff's condition.

According to Nicholina, she reported repeated nausea, vomiting, pinching and burning, eye pain and ultimately loss of vision by 3 p.m. Plaintiff's son, Donald Kotvan, also testified that he told a KEC employee that plaintiff was experiencing eye pain and had lost vision in her eye. On the other hand, KEC technician Ms. Ernst only documented, "Millie vomited again. No eye pain, slight pinching and burning" in plaintiff's chart. Nurse Mary McLeod also took several calls concerning plaintiff and testified that she did not recall receiving complaints of any eye pain or loss of vision. Both Ms. Ernst and nurse McLeod testified that they informed Dr. Kirk after each call.

A KEC employee allegedly instructed Nicholina to contact plaintiff's family physician, Dr. Popper, to reduce the vomiting. Dr. Richard Mattis, an associate of Dr. Popper, prescribed an anti-emetic over the phone to stop her vomiting. Plaintiff continued to vomit despite the medication so Dr. Mattis instructed Nicholina to take plaintiff to the emergency room. Nicholina informed KEC that she was taking plaintiff to Gottlieb Hospital. Nurse Mcleod testified that Dr. Kirk stated that he wanted to speak to the emergency room physician when plaintiff arrived at the hospital, and she contacted the charge nurse at Gottlieb Hospital and informed them of Dr. Kirk's request.

Plaintiff checked into Gottlieb Hospital's emergency room at 4:40 p.m on May 12, 1993. Dr. Viglione saw plaintiff 10 minutes later and was aware that plaintiff had had eye surgery from a nurse's note in the chart. He examined plaintiff's left eye with a penlight and noted that it was red and the pupil was reactive. Dr. Viglione testified that neither plaintiff nor any of her family members told him that plaintiff could not see out of her left eye or that she had pain in that eye. Dr. Viglione diagnosed plaintiff with gastroenteritis and did not believe there was anything wrong with plaintiff's left eye. Dr. Viglione called Dr. Kirk around 5:10 p.m. and informed him of the results of his exam. Dr. Viglione then admitted plaintiff as an in-patient out of concern for her vomiting and possible dehydration. The next morning, on May 13 around 8 a.m., Dr. Kirk saw plaintiff in the hospital. At 8:30 a.m. Dr. Kirk examined plaintiff and noticed hypopyon, a layering of white blood cells in the eye, and corneal haze. Dr. Kirk diagnosed infectious endophthalmitis (IE) in her left eye. Dr. Kirk contacted Dr. Kenneth Resnick, a retinal specialist, sometime between 8:45 to 9 a.m. Dr. Resnick arranged for plaintiff's surgery. Around 11 a.m. he ordered a cardiology consult. Plaintiff's EKG was interpreted at 11:18 a.m. and showed signs of a possible previous heart attack. Plaintiff could not be cleared for surgery without approval of a cardiologist or internist. Dr. Popper, plaintiff's family physician, consulted with Dr. Resnick about plaintiff's EKG around 12:45 p.m. As a result, plaintiff was cleared for surgery. At 2:25 p.m. Dr. Resnick ordered a chest Xray. A report interpreting the film was dictated around 3:24 p.m. The report indicated that plaintiff's heart was borderline in size, with no demonstrable active pulmonary infiltrates or congestive changes.

Dr. Resnick operated on plaintiff's left eye shortly after 5 p.m. Six days later, plaintiff was discharged. She was then treated on an out-patient basis by Dr. Resnick, Dr. Joel Sugar and Dr. John Fournier, but her sight could not be saved. Plaintiff's doctors agree that her left eye will probably have to be enucleated.

At trial, Dr. Kirk testified that he is a board-certified ophthalmologist who performs approximately 500 cataract surgeries per year. Dr. Kirk stated that pressure in the eye is commonly elevated after cataract surgery because one of the substances used during surgery, viscoelastic, may block the outflow channel of the eye, temporarily elevating the IOP. Dr. Kirk explained that it was unlikely that a paracentesis tap to relieve IOP would cause bacteria to enter the eye because the physician inserts no instruments into the eye. Dr. Kirk testified that after the paracentesis tap, he found plaintiff's wound to be structurally intact and sealed. Dr. Kirk also examined plaintiff's eye with an indirect ophthalmoscope and did not notice any blood cells in the anterior chamber of her eye, an early symptom of IE.

Dr. Kirk further testified that he was aware that plaintiff vomited in his waiting room but did not re-examine her because he believed it was related to the paracentesis or elevated IOP. He stated that vomiting can ensue after an elevated IOP. Although plaintiff continued to vomit throughout the day, Dr. Kirk did not re-examine her because there were no reports of eye problems and Dr. Kirk believed plaintiff's condition was gastronomic and not eye-related. He stated that this belief was further confirmed by the emergency physician, Dr. Viglione, who never told Dr. Kirk that plaintiff was experiencing vision loss or eye pain. When Dr. Kirk examined plaintiff the next morning at 8:30 a.m. and found hypopyon and corneal haze, he diagnosed plaintiff with IE and contacted Dr. Resnick between 8:45 a.m. and 9 a.m. to perform surgery. Dr. Kirk also testified that it was the admitting or operating physician's role to oversee plaintiff's preparation for surgery, not his.

Next, plaintiff called three opinion witnesses, Dr. Fagman (retained expert), Dr. Fournier (treating physician) and Dr. Sugar (treating physician). Dr. Fagman, a board-certified ophthalmologist, testified that Dr. Kirk performed the paracentesis tap in a nonsterile manner and did not adequately check the wound after the procedure to insure that it was sealed. As a result, Fagman opined that bacteria entered the eye when the paracentesis was performed. Dr. Fagman also opined that Dr. Kirk deviated from the standard of care by failing to re-examine plaintiff after the vomiting occurred. Dr. Fagman believed that the vomiting may have caused plaintiff's wound from the paracentesis to open, thereby increasing the risk of infection. Further, Dr. Fagman testified that the continuous vomiting throughout the day was a symptom of IE.

Dr. Fagman stated that Dr. Kirk did not comply with the standard of care by relying upon Dr. Viglione's report, because Dr. Viglione, a nonophthalmologist, lacked qualifications or expertise in examining the eye. Dr. Fagman also opined that Dr. Kirk was negligent because he failed to ensure that plaintiff's surgery proceeded earlier than 5 p.m. on May 13. Dr. Fagman did concede, however, that circumstances may have required Dr. Resnick to wait before proceeding with surgery, including plaintiff's abnormal EKG and plaintiff's consumption of breakfast.

Dr. Fournier, plaintiff's retinal surgeon, agreed with Dr. Fagman that the paracentesis procedure caused bacteria to enter and infect plaintiff's eye. Dr. Fournier opined that vomiting is a symptom of IE and that plaintiff's streptococcus pneumonia and IE could be diagnosed within 12 hours or less. Dr. Fournier believed that the bacterial infection due to the paracentesis should have been observed by 8 p.m. on May 12 and that Dr. Kirk's negligence in relying upon Dr. Viglione's failure to detect infection at that time caused plaintiff's eye injury.

Plaintiff's last expert, Dr. Sugar, a treating physician, stated that nausea and vomiting could be symptoms of IE. On cross-examination, Dr. Sugar conceded that nausea and vomiting are not necessarily symptoms of IE. He also believed that IE typically occurs within five days following cataract surgery.

Defendant called one opinion witness, Dr. Rubenstein. Dr. Rubenstein, a board-certified ophthalmologist, served as the chairman of the ophthalmology department at Rush Northshore, director of the refractive surgery service at Rush Presbyterian St. Luke's Medical Center (Rush), and president elect of the Chicago Ophthalmological Society. He was a teacher of cataract surgery and management. He had knowledge of a study conducted to evaluate signs and symptoms of endolphthalmitis. Dr. Rubenstein testified that patients with plaintiff's strain of IE, streptococcus pneumonia endolphthalmitis, have a very poor prognosis. He stated that neither his personal experience nor review of medical literature ever revealed an endolphalmitis diagnosis within 12 hours of a noninvasive procedure. He testified that symptoms of IE normally appear three to five days after a procedure.

Dr. Rubenstein also believed that plaintiff's IOP of four was sufficient to maintain outward pressure on the self-sealing wound after paracentesis. In Dr. Rubenstein's opinion, the signs and symptoms of IE do not include nausea, vomiting or diarrhea, though increased IOP can cause vomiting in a patient. He also opined that once bacteria enters the eye and causes infection, normally three to five days elapse before hypopyon, layering of white blood cells and first sign of IE, will be visible in the eye. Once hypopyon begins to occur, Dr. Rubenstein indicated that it can develop within hours. Accordingly, the hypopyon Dr. Kirk noted at 8:30 a.m. on May 13 may not have been visible an hour earlier at 7:30 a.m. In Dr. Rubenstein's opinion, even though Dr. Kirk found hypopyn on May 13, this symptom may not have been present on the evening of May 12.

Dr. Rubenstein further testified that medical clearance would be required to put a 77-year-old woman, like the plaintiff, under general anesthesia. Additionally, plaintiff's abnormal EKG would need to be evaluated before proceeding to surgery. Based on his review of plaintiff's medical records and a reasonable degree of medical certainty, Dr. Rubenstein testified that Dr. Kirk did not deviate from the standard of care in the timeliness of diagnosis or the treatment of plaintiff's IE.

The parties stipulated to Dr. Resnick's evidence deposition. Dr. Resnick was the surgeon who performed the vitrectomy procedure on plaintiff's eye on May 13. He was a board-certified ophthalmologist who specialized in retinal and vitreous surgery. Dr. Resnick testified that it was unlikely that infection was caused by the paracentesis tap because during the procedure, material is flowing out of the eye and the risk that bacteria would be introduced inside the eye is minimal. In Dr. Resnick's opinion, it was more likely that the bacteria was introduced at the time of surgery because IE takes time to progress before any symptoms become apparent. IE is a known complication of cataract surgery and may occur in the absence of professional negligence. Dr. Resnick opined that even if bacteria was introduced during paracentesis, IE would not have been diagnosable as early as the afternoon or evening of May 12. Dr. Resnick explained that even in the most virulent strain of IE, streptococcus pneumonia which infected plaintiff's eye, symptoms could appear as early as 24 hours after infection, but not within two hours after bacteria enters the eye.

Dr. Resnick also indicated that the four major symptoms of IE are: eye pain, loss of vision or blurry vision, eye redness and mattering or discharge from the eye. Dr. Resnick stated that nausea is not a typical sign of IE. Nothing in the Gottlieb Hospital records indicated that plaintiff was suffering from IE when she presented at the hospital, and Dr. Resnick believed that Dr. Kirk did not deviate from the standard of care in terms of timeliness of diagnosis or treatment. Dr. Resnick further testified that the delay before surgery was not unusual due to the preoperative work up and transfer of necessary instruments from another hospital.

After trial, the jury returned a verdict in favor of the defendants, Dr. Kirk and KEC. Plaintiff appeals. We affirm.



Plaintiff initially argues that the defendants' evidence concerning breach of duty was so insufficient that she should be entitled to a judgment notwithstanding ...

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