Appeal from the Circuit Court of Lake County No. 98-L-12 Honorable Terrence J. Brady, Judge, Presiding
The opinion of the court was delivered by: Justice Geiger
The plaintiff, David Verbance, filed this medical malpractice suit against his urologist, Dr. Ronald Altman, following a failed laparoscopic procedure to remove a kidney stone. The defendant appeals from a jury verdict of $511,836.78 entered against him, arguing that the trial court erred in (1) overruling his objection to the causation testimony of Dr. Carey Dachman, one of the plaintiff's opinion witnesses; (2) overruling his objection to the testimony of Dr. Goldrath, one of the plaintiff's witnesses, on the grounds that the plaintiff failed to disclose Dr. Goldrath as an opinion witness; (3) denying his motions for a directed verdict and for judgment notwithstanding the verdict; (4) giving the issues jury instruction that was tendered by the plaintiff; (5) giving the circumstantial evidence jury instruction that was tendered by the plaintiff; (6) refusing to give the special interrogatory tendered by the defendant; and (7) overruling his objections to the plaintiff's closing argument. Due to page limitations, only the first issue is included in the published portion of the case, with the remaining six issues designated as nonpublishable pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23).
The plaintiff consulted the defendant when he experienced pain resulting from a kidney stone. The defendant agreed to perform a laparoscopy to remove the stone. During the surgery, the defendant was unable to remove the stone. A few days later, another urologist, Dr. Goldrath, performed a laparoscopy. When he injected dye into the plaintiff's bladder, he noted that the dye leaked out of the bladder. He then successfully removed the kidney stone. Following the surgery, urine leaked out of the plaintiff's bladder. For a four-year period following the surgery, the plaintiff experienced great pain in his groin area, for which he sought treatment from a number of medical providers. The pain ultimately resolved after surgery to block the plaintiff's genitofemoral nerve.
The defendant filed a motion in limine to bar Dr. Carey Dachman, one of the plaintiff's treating physicians, from giving proximate cause testimony. The defendant argued that Dr. Dachman was not qualified to give such testimony. The trial court denied the motion.
At trial, the defendant, a urologist at Good Shepard Hospital, testified as to how he performed the laparoscopy on July 31, 1992. After the plaintiff was anesthetized, the defendant inserted a cytoscope into the plaintiff's urethra through his penis. He pushed the cytoscope into the bladder, allowing him to see inside the bladder. He then performed a cystoscopy, which revealed normal findings in the bladder.
The defendant then performed a retrograde examination of the ureter, a procedure in which dye is injected through a catheter into the ureteral orifice, which is the opening to the ureter. During the procedure, the defendant saw the kidney stone. He then removed the catheter and inserted a guidewire. He was able to visually follow the path of the guidewire via fluoroscope as it traveled up the ureter. He then saw the end of the guidewire curled in the kidney, which indicated that the guidewire was properly placed within the ureter.
The defendant then inserted a dilating balloon over the guidewire, through the cytoscope, and into the ureter. Using the guidewire, he placed the balloon into the ureteral orifice and then into the ureter. The balloon lost pressure as it began to inflate. The dye contained in the balloon was no longer visible on the fluoroscope screen. He withdrew the balloon and observed some bleeding from the ureteral orifice, which is a common during this type of surgery. Sometime thereafter, the guidewire slipped out.
While maintaining a clear vision of the ureteral orifice, he attempted to replace the guidewire into the ureter. When he attempted to place the guidewire into the ureteral orifice, the wire resisted and did not move more than half an inch. He tried to place the guidewire four or five times. He then performed a retrograde injection and saw dye going outside the urinary tract. This indicated that there had been muscosal tear and extravasation of dye outside the normal urinary tract. He then removed all instruments and terminated the operation.
The defendant noted in his operative report that the balloon had burst during dilation. He also stated this to the plaintiff following the surgery. On cross-examination, he admitted that the balloon did not break and further admitted that he did not change his report to reflect this.
The plaintiff sought a second opinion from Dr. David Goldrath, who was also a urologist at Good Shepard Hospital. Five days after the first surgery, Dr. Goldrath performed a ureteroscopic procedure on the plaintiff. Dr. Goldrath testified that the surgeon is supposed to insert the guidewire into the ureteral orifice and hope that the wire finds its way into the ureter.
Dr. Goldrath found that the plaintiff's ureteral orifice had not been dilated. When he injected dye into the area of the ureteral orifice, it went outside the bladder instead of into the ureter. He testified that this was not a normal finding. When he inserted a guidewire, it did not go into the ureter. The guidewire went outside the bladder and along the path where the dye had gone.
Dr. Goldrath then inserted another lens and saw a large opening through the bladder wall. The hole was next to the actual ureteral orifice. The hole was round and was not irregular in shape. He estimated the size of the hole to be about 15 french, which is about one centimeter and is the size of an inflated balloon dilator.
Because the hole looked like a balloon dilator hole, Dr. Goldrath noted in his report of the surgery that it was apparent to him that the area had been previously dilated during the plaintiff's first surgery. Dr. Goldrath testified that a "false passage" had been created on account of the hole and the apparent dilation. Because there was no evidence of normal ureteral mucosa in the area of the hole, he concluded that the hole was in the bladder and not in the ureter. He did not find any evidence of a dilation hole in the area of the ureteral orifice where it should have been.
Dr. Goldrath testified that he placed the guidewire into the ureteral orifice and passed it into the kidney. He then placed a balloon dilator into the orifice. Next, he removed the balloon dilator and placed the ureteroscope alongside the guidewire into the ureter. The ureter appeared normal and the mucosa was intact. This indicated that the area had not been dilated previously. Dr. Goldrath then successfully removed the stone from the plaintiff's left ureter. Dr. Goldrath was not asked any questions regarding his opinions on the breach of the standard of care or causation.
Prior to Dr. Goldrath's testimony, the defendant orally moved to bar Dr. Goldrath from testifying on the ground that the plaintiff had not disclosed Dr. Goldrath as an opinion witness in accordance with Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)). The trial court denied the motion. On cross-examination, the defendant asked Dr. Goldrath whether he had an opinion as to whether the defendant had breached the standard of care, to which he responded that he had no opinion.
Dr. Joseph Davis testified for the plaintiff as a retained opinion witness. Dr. Davis testified that Dr. Goldrath's findings were abnormal and unusual. He testified that Dr. Altman violated the standard of care and that the violations caused damages. He opined that the defendant had not properly placed the balloon, as evidenced by the dye going outside the bladder, causing damage to the periureteral tissue. He also testified that the bladder perforation was caused by the defendant's violations of the standard of care. He based that opinion on the findings of Dr. Goldrath that a hole existed in the bladder, that the ureteral orifice was intact, and that there was no evidence of trauma to the plaintiff prior to the surgery and on the fact that Dr. Goldrath successfully performed the stone removal.
Dr. Davis testified that urine, dye, and instrumentation had passed through the bladder hole and into the area outside the bladder. He opined that urine was extravasating into the plaintiff's retroperitoneum for at least 10 to 14 days after the injury. The hole was near the bottom of the bladder such that, when the plaintiff moved, urine must have leaked out.
Dr. Davis testified that, even if the defendant's version of the facts was true, the defendant violated the standard of care. In a hypothetical question assuming the defendant's version of the facts, Dr. Davis testified that, at the time that the defendant observed bleeding and knew that there was extravasation of dye on the second attempt at retrograde, the defendant should have stopped the operation and should not have tried to blindly put the guidewire in. ...