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Schiff v. Friberg

May 20, 2002

RACHEL SCHIFF, PLAINTIFF-APPELLEE,
v.
J. FRIBERG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 95 L 4588 The Honorable Thomas E. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

UNPUBLISHED

Rachel Schiff filed a medical malpractice suit against Dr. Jan Friberg and Columbia Grant Hospital for alleged damages sustained following surgery conducted on January 17, 1995. The jury awarded Schiff damages in the amount of $482,448.19, later reduced to $467,448.19, based on $15,000 previously paid in settlement by Columbia Grant Hospital. Dr. Friberg filed a posttrial motion to set aside the jury verdict or, alternatively, grant him a new trial. That motion was denied. Dr. Friberg appeals from both the judgment entered on the jury verdict and the order denying the posttrial motion.

The following issues are presented on appeal: (1) whether the trial court's admission of certain standard-of-care opinions expressed by plaintiff's expert witness, Dr. Barbara Levy, violated Illinois Supreme Court Rule 213 (177 Ill. 2d R. 213); (2) whether the trial court's admission of certain opinions of plaintiff's expert witness disclosed two weeks prior to trial violated Rule 213; (3) whether the trial court's evidentiary rulings allowing the defendant, Dr. Friberg, to be impeached with his deposition testimony and a version of the plaintiff's hospital chart were collateral and reversible error; (4) whether the trial court's denial of defendant's motion for a directed verdict on plaintiff's informed consent count constitutes reversible error; (5) whether the trial court's denial of defendant's motion for a directed verdict on the standard of care constitutes reversible error; (6) whether the trial court's admission of certain "speculative" opinions of plaintiff's expert witness constitutes reversible error; (7) whether the trial court's responses to questions presented by the jury constitute reversible error; (8) whether the trial court's issuance of certain jury instructions constitutes reversible error; (9) whether the cumulative effect of the trial errors prevented the jury from returning a verdict free from prejudice; and (10) whether the jury's verdict was against the manifest weight of the evidence.

BACKGROUND

In 1984, 1986, 1987, and 1990, Schiff underwent various surgical procedures on her reproductive organs. In October 1990, Schiff was referred to Dr. Friberg by her gynecologist. Dr. Friberg provided Schiff with fertility treatment and counseling, performed regular examinations, and treated her irregular menstrual bleeding. Schiff saw Dr. Friberg approximately once every two to three months between 1990 and 1995. The visits increased in frequency in 1994 due to the worsening of her irregular bleeding. In 1994, Schiff was 40 years old and had not been successful in becoming pregnant.

Schiff testified at trial that during an office visit on December 29, 1994, Dr. Friberg recommended that she undergo a dilatation and curettage (D&C) (a "blind" procedure in which the physician dilates the cervix and scrapes tissue from inside the uterus for pathological evaluation) and hysteroscopy procedure (a procedure that allows the physician to view the inside of the uterine cavity through a scope) to rule out a malignancy as the source of her irregular bleeding.

She met with Dr. Friberg on January 11, 1995, and he told her "that he wanted to take a look around because it was medical and not endocrine." He did not say anything else about the procedures of the D&C and the hysteroscopy. She further testified that he indicated to her that " 'a couple months from now we'll go in and, you know, do a laparoscopy for the fertility issue.'" She asked Dr. Friberg if he could perform both procedures at the same time because she did not wish to take more time off from work or be under anesthesia twice. Dr. Friberg said that he could. Schiff testified that there was never any discussion with Dr. Friberg regarding the possibility of organ damage or serious infections as a result of these procedures, availability of non-surgical options, or in vitro fertilization.

She testified that on January 17, 1995, she saw Dr. Friberg as they brought her into the operating room, but he did not go over any of the consent forms with her. After the surgery, she was "very, very sick" and in a lot of pain. Her stomach was very distended, she felt feverish, nauseous, and was in excruciating pain. Instead of going home, Schiff was admitted to the hospital that afternoon. She testified that she continually informed the nurses of her discomfort. On January 19, 1995, she was still very sick. She testified that she was not examined by Dr. Friberg on January 19, 1995.

On the morning of January 20, 1995, she was examined by Dr. Vijay Maker. Dr. Maker touched her stomach, Schiff screamed, and Dr. Maker indicated that emergency surgery was necessary. She stated that Dr. Maker told her that she had peritonitis and she understood that he was proposing an exploratory laparotomy and a possible colostomy.

After the emergency surgery on January 20, 1995, she woke up in the intensive care unit of Columbia Grant Hospital with a respirator device down her throat. She was informed that a colostomy had been performed. She remained in the hospital until January 31, 1995. The colostomy was reversed on May 5, 1995, by Dr. David Winchester of Evanston Hospital.

On cross-examination, Schiff acknowledged signing consent forms at Columbia Grant Hospital on January 17, 1995, which indicated that she was aware of the surgical risks such as loss of blood and infection, and if surgery necessitated admission, she agreed to be admitted as an inpatient.

Schiff's March 1, 1995, complaint against Dr. Friberg and Columbia Grant Hospital asserted that Dr. Friberg failed to warn her of the complications of the surgery conducted in January 1995, failed to warn her that she was a high risk surgical candidate, perforated her colon in two locations during the surgical procedure, failed to inform her that he perforated the colon and failed to refer the case to another physician in a timely manner, and the alternative count of res ipsa loquitor.

Columbia Grant Hospital filed a motion for summary judgment in September 1999. That motion was denied. Schiff's second amended complaint, filed on March 10, 2000, alleged professional negligence, lack of informed consent, and hospital negligence.

On May 15, 2000, Schiff's attorney sent a letter to Dr. Friberg's attorney indicating that Dr. Levy had advised him of the following supplements to her opinions previously disclosed:

"1. The laparoscopy performed by Dr. Friberg was not justified by the desire to investigate the source of plaintiff's pain, and there is no indication in the medical records that this was Dr. Friberg's reason for performing the laparoscopy.

2. Dr. Friberg had a duty to obtain plaintiff's prior medical records.

3. Having reviewed the pathology report of February 2, 1995, she does not believe that it established that both perforations observed by Dr. Maker were the result of ruptured diverticulitis, and she does not believe that the perforations were caused by ruptured diverticulitis. She bases this opinion on the pathology report and on Rachel's medical history.

4. Even if the perforations were the result of ruptured diverticulitis, they nevertheless occurred during, and were caused by the procedure performed by Dr. Friberg, and caused the injuries described during her deposition.

5. Rachel's bleeding problem did not preclude Dr. Friberg from performing a hysterosalpingogram.

6. In vitro fertilization was a preferable method if plaintiff desired to become pregnant, and in fact would have been more likely to have resulted in a successful pregnancy."

Dr. Friberg filed a series of emergency motions asking the court to bar certain testimony including the "additional opinions" in the May 15, 2000, letter. A hearing was held on these motions on May 31, 2000. The court barred only the opinion expressed in paragraph two of the letter.

Dr. Friberg received his medical degree in 1966 and has a Ph.D. in reproductive endocrinology and immunology. He is board certified in obstetrics, gynecology, and infertility. At trial, Dr. Friberg stated that he and Schiff discussed combining the hysteroscopy, the D&C, and the laparoscopy. He was asked at trial:

"Q: Doctor, you don't have any recollection of discussing any of these risks that we've been talking about or any potential complications with Rachel Schiff prior to January 17, 1995, do you?

A: *** [M]y routine is to discuss this prior to surgery. I don't have a specific recollection about that."

Dr. Friberg further testified that "the usual approach" to viewing organs from different angles included using a blunt probe to move organs, having a scissors available "if something is in its way. And in that particular situation, you also have a YAG laser available." Relative to Schiff's postoperative condition, counsel inquired of Dr. Friberg:

"Q: In fact, you would agree and it was known in 1995 in the medical community that if--that a bowel perforation should be suspected in all cases of continuing abdominal pain within 24 to 48 hours following a laparoscopy?

A: Correct.

Q: Another common symptoms [sic] associated with peritonitis is fever, correct?

A: Yes.

Q: You would expect to see that develop if a bowel was perforated?

A: Yes.

Q: There are other symptoms as well; correct, Doctor?

A: Yes.

Q: And it would be the case that in different patients peritonitis manifests itself in different ways at different stages in the progress of the disease, correct?

A: Yes."

Dr. Friberg further testified that on the day of surgery, he briefly saw Schiff in the recovery room. Afterwards, he left the hospital for the day. Later, he received a phone call from one of the nurses that was attending to Schiff. The nurse indicated that she was not comfortable with sending Rachel home because she seemed to be having more pain than would normally be expected. Counsel inquired:

"Q: You didn't--after getting the phone call from the nurse, you didn't return to Grant Hospital to see Rachel at all on the 17th did you, Doctor?

A: No.

Q: And the next day following surgery, that would be January 18th; correct, Doctor?

A: Yes.

Q: And, Doctor, you didn't come to see Rachel on the 18th ...


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