Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Coleman v. Abella

June 08, 2001

SELWYN COLEMAN, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF DOROTHY COLEMAN, DECEASED PLAINTIFF-APPELLANT
v.
DENNIS ABELLA, DEFENDANT-APPELLEE



Appeal From The Circuit Court Of Cook County; No. 97 L 2945; Honorable Deborah Mary Dooling Judge Presiding.

The opinion of the court was delivered by: Justice REID.*fn1

Not Released For Publication

SELWYN COLEMAN, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF DOROTHY COLEMAN, DECEASED PLAINTIFF-APPELLANT
v.
DENNIS ABELLA, DEFENDANT-APPELLEE

Appeal From The Circuit Court Of Cook County; No. 97 L 2945; Honorable Deborah Mary Dooling Judge Presiding.

The opinion of the court was delivered by: Justice REID.*fn1

This is an appeal from a final judgment entered on the verdict of a jury and the denial of a posttrial motion seeking a new trial. At issue is Supreme Court Rule 213(g)(ii) (177 Ill. 2d R. 213(g)(ii)), which requires parties on written interrogatories to disclose the conclusions and opinions of their expert witnesses, along with the bases for those opinions. The trial court struck one of the plaintiff's experts, which the plaintiff claims is reversible error.

 Dorothy Coleman (Coleman) died on December 6, 1990. During 1989, Coleman had been admitted to the Alexian Brothers Medical Center complaining of difficulty breathing and a swollen tongue. Her attending physician was Dr. Dennis Abella, D.O. (Abella). During her stay at the hospital, Coleman's breathing gradually worsened, culminating in respiratory arrest requiring a stay in the intensive care unit and the use of a mechanical ventilator. Once she could breathe on her own, Coleman was transferred out of intensive care and monitored by hospital staff every few hours. On October 16, 1989, a blood gas test was performed which showed an above-normal level of carbon dioxide and a below-normal level of oxygen. The test was repeated on October 17, 1989, showing some improvement. At that time, Coleman's results were carbon dioxide on the high level of normal and a below-normal level of oxygen.

Coleman was observed sleeping at 6:45 a.m. on October 19, 1989. At 7:25 a.m., a nurse found an unresponsive Coleman not breathing and with no pulse. The hospital staff resuscitated Coleman, but the lack of oxygen to her brain left her in a coma in which she remained until her death.

In 1991, action was commenced on Coleman's behalf for damages against multiple defendants, including Dr. Abella. On December 18, 1995, the defendants took the deposition of Dr. Marianne Legato (Legato), one of plaintiff's opinion witnesses. The lawsuit was voluntarily dismissed before trial. On March 12, 1997, a new complaint was filed against Dr. Abella and others. By agreement of the parties, the prior discovery was allowed to stand. Following a settlement with most of the defendants, the case continued against Abella alone. Trial was held on August 24, 1998, at which plaintiff called two opinion witnesses.

Dr. Morris Papernik (Papernik) testified that he is a board-certified physician of internal medicine. He attended two years of medical school at the University of Autonomy de Guadalajara in Mexico then completed his medical education at Rush Medical College (Rush). After a one-year family practice internship, Papernik transferred to the internal medical program at Rush. Following his residency, Papernik began a fellowship in hematology and oncology, which he quit to find a better-paying job to support his family. Papernik, who has been in private practice in internal medicine since 1984, is also an associate attending physician and associate professor at Rush.

In preparing to render an opinion in Coleman's case, Papernik reviewed Coleman's medical chart and other doctors' depositions. Papernik considered his review of those materials gave him an adequate foundation for his opinions, claiming that a reasonably qualified internist should be able to get all the information he needed from the charts. Papernik testified that an attending physician must be aware of everything going on with a patient and must be proactive on that patient's behalf in terms of his or her welfare. He also testified that, as an attending physician, he must make sure that what needs to be done for a patient gets done. This gives an attending physician an active role is making a treatment plan. Papernik opined that Abella breached the applicable standard of care in four ways while treating Coleman. According to Papernik, Coleman should have had a tracheostomy to ensure better airway protection, which could have prevented her second arrest. She also should have been better monitored after she was released from intensive care. Once the blood gas test results showed a high level of carbon dioxide and a low level of oxygen, Papernik felt Abella needed to have acted on them more appropriately. Finally, Abella should have had another blood gas test for Coleman on October 18, 1989, the day before her second respiratory arrest.

Papernik concluded that a reasonably well-qualified internist should have considered the high levels of carbon dioxide and low levels of oxygen in Coleman's blood to be red flags that something was wrong. Another test showing continued oxygenation difficulty would have indicated to a reasonably well-qualified internist the necessity for mechanical ventilation or airway protection. Papernik concluded that the second arrest was caused by the same obstructed process that caused the first arrest. Fatigue, malnutrition and pneumonia may have contributed to Coleman's underlying illness, but Papernik was completely convinced that an obstruction was the immediate cause of the full-blown respiratory arrest, a situation that should have been recognized on or before October 16, 1989, and corrected.

Also called as an opinion witness was Dr. Marianne Legato (Legato), who was referred to as the primary opinion witness. She testified that she was a graduate of the New York University College of Medicine in 1962 and that she completed one year of internship and two years of residency. Legato next completed a three-year fellowship at Columbia Presbyterian Medical Center and its affiliated hospital, St. Luke's Roosevelt Hospital. Legato then received a Research Career Development Award, which involves five years of special training. She is also a fellow of the American College of Physicians. After completion of the fellowship, Legato went into academic medicine at St. Luke's Roosevelt Hospital, where she spent her career teaching, doing research and clinical care. Dr. Legato founded and supervises The Partnership for Women's Health at Columbia Presbyterian, which includes both clinical and laboratory research. As an academic physician, Legato taught and supervised the care of patients in hospitals and clinics. She also directly cared for patients in clinics. Legato stated that she has continued to teach medicine, has written several books for both lay persons and medical professionals, and is currently a professor of clinical medicine at Columbia University College of Physicians and Surgeons.

Dr. Legato gave her deposition on December 18, 1995. At trial, Legato testified that she had never before testified as an expert witness in a medical malpractice case. In anticipation of rendering an opinion, she stated she reviewed Coleman's complete medical chart from the time of her admission through October 19, 1989, some depositions of lay witnesses and the deposition of Dr. Abella.

Legato gave the opinion that Abella failed to meet the standard of care in treating Coleman. She felt that Abella failed to definitively articulate Coleman's underlying diagnosis and the reasons for her illness. He also was wrong in not returning her to intensive care after she complained of her inability to swallow, to breath and her fear of dying. Even if the decision was made not to return her to intensive care, the applicable standard of care should have required Abella to order close monitoring of Colman's cardiac rhythm and her respiratory status. Legato further claimed that Abella deviated from the applicable standard of care in failing to do an exhaustive work-up on Coleman's tongue, including a biopsy. Legato concluded that Abella's deviations contributed to Coleman's respiratory arrest and subsequent coma.

On cross-examination, Legato was asked whether she ever reviewed the deposition of Dr. Grossman. When Legato indicated that she had reviewed the deposition, counsel for the defendant objected on the basis that the witness had been supplied with additional material after her deposition had been taken and that defense counsel had not received a supplemental disclosure revealing the additional materials that were supplied to her. According to Abella's counsel, the failure to notify him that Dr. Legato received and reviewed additional materials after her deposition was a "clear violation of Supreme Court Rule 213."

The trial court addressed the objection to Legato's testimony outside the presence of the jury. Legato admitted to reviewing 13 discovery depositions, nine of which she received shortly before trial. The trial court asked Legato if she could "separate out" her testimony and render an opinion based only upon the materials she reviewed before her December 18, 1995, discovery deposition. Legato indicated that she could not, an answer in which she persisted, even ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.