Appeal from the Circuit Court of Cook County No. 96 L 0607 The Honorable Barbara J. Disko, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
Reginald Reed filed a medical malpractice action against Jackson Park Hospital Foundation (JPH), Dr. Ivy Sandifer, Dr. Larry Mitchell, and Medical Emergency Care Associates (MECA) seeking damages for the loss of his right eye. Prior to trial, the trial court granted defendants' motion in limine to bar the testimony of plaintiff's expert witness. JPH, Dr. Mitchell, and MECA then moved for summary judgment on the basis that, without the expert witness' testimony, plaintiff could not prove the proximate cause element of his case. The trial court granted the motion for summary judgment. Plaintiff-appellant appeals from the order of the circuit court entered against him that granted defendants' motion for summary judgment. The primary issues upon appeal are: (1) whether the circuit court erred in ruling, pursuant to defendants' motion in limine, to bar the opinion of plaintiff's expert witness; and (2) whether, under the "lost chance" doctrine, the court erred in granting defendant's renewed motion for summary judgment.
On the evening of July 3, 1995, plaintiff was assaulted by unknown assailants in the 6500 block of South Kimbark in Chicago, Illinois. Plaintiff was hit in the head and right eye with "stick." He was transported to Jackson Park Hospital where he received emergency care. Dr. Larry Mitchell treated plaintiff in the JPH emergency room. Plaintiff received stitches on the back of his head and on his right eyelid and was released on July 4, 1995. He was instructed to return to the emergency room as needed, to return in three days to have his wounds checked, and to return in seven days to have his stitches removed. Plaintiff recalls that his right eye was not bandaged but it was swollen shut.
On July 4, 1995, plaintiff's girlfriend said to him, "Your eye is bleeding." Plaintiff's mother made a similar observation on July 6, 1995. Plaintiff testified that he did not look at the fluid or return to the hospital after being told about the leakage.
On July 7, 1995, plaintiff went to Veteran's Administration (VA) hospital, where he was told, "You're going to have to have surgery." He was then examined by Dr. Alice Lyon and third-year resident, Dr. Leonard Gurevich. Dr. Lyon was the attending physician that supervised Dr. Gurevich. They found lacerations on plaintiff's eye. It was determined that the eye could not be saved. Plaintiff's right eye was removed on July 11, 1995. Plaintiff testified that an unidentified doctor told his mother that "maybe" his eye could have been saved had there been other action in his initial hospital visit. Plaintiff received a prosthetic eyeball in October 1995.
In January 1996, plaintiff filed a complaint against JPH, Dr. Larry Mitchell, and Dr. Ivy Sandifer alleging medical malpractice and seeking damages for the loss of his right eye due to defendants' alleged medical malpractice. Plaintiff later amended his complaint to add MECA. Dr. Sandifer was later dismissed. Plaintiff's first amended complaint alleged that Dr. Ivy Sandifer, Dr. Larry Mitchell, and MECA failed to use reasonable care in examining and treating plaintiff's right eye. Defendants denied all material allegations of negligence. Plaintiff ultimately asserted that defendants were liable under the "lost chance" doctrine.
During deposition, Dr. Leonard Gurevich testified that he was board certified in ophthalmology in 1997. He first saw plaintiff on July 7, 1995, as a patient at the VA hospital. Dr. Gurevich was a third-year resident in ophthalmology and the chief resident at that time. Dr. Gurevich's July 8, 1995, examination of plaintiff revealed that plaintiff had a "ruptured globe[,] *** a hyphema, which is blood in the antechamber, and revealed a lot of swelling of the lids." The following testimony was elicited during Dr. Gurevich's evidence deposition:
"MR. RABINOWITZ [plaintiff's attorney]: Do you have an opinion, based upon a reasonable degree of medical certainty, as to whether or not, as of July 7th, of 1995, the eye could have been saved?
THE WITNESS [Dr. Gurevich]: I don't think with medical certainty, the eye could have been saved.
Q: Doctor, do you have an opinion, based upon a reasonable degree of medical certainty, if the injury to the eye was discovered on July 3rd-- on the evening of July 3rd or July 4th, is it more probable that the eye could have been saved?
THE WITNESS: No, I don't think to the medical degree of certainty the eye could have been saved.
MR. RABINOWITZ: Doctor, do you have an opinion, based upon a reasonable degree of medical certainty, that if the injury to the eye--that if the injury to the eye had been discovered in the emergency room, would you have had a better chance of saving the eye than on July 7th of 1995?
THE WITNESS: Yes, I think that's reasonable to say.
MR. RABINOWITZ: And what is the basis for your opinion, Doctor?
THE WITNESS: The basis is that as time went by and as the wound maintained, or was being opened, and as the eye structures continued to be protruding, some of those eye vital structures perhaps could have been saved, but as the time went by, that eliminated what little chance that existed.
MR. RABINOWITZ: And do you have an opinion what effect the, you know, the effect of time, from July 3rd to July 7th, would have had on the corneal laceration?
THE WITNESS: Probably not.
MR. RABINOWITZ: So there probably would have been no effect on the laceration?
MR. RABINOWITZ: Okay. Doctor, at the time of the surgery on July 7th, what was the condition of the uveal tissues?
THE WITNESS: The uveal tissues were prolapsed into the corneosclera laceration or the wound.
Q: And what effect would that have on vision?
A: That would have adverse effect on vision.
Q: And is that one of the reasons why you recommended ...