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Petre v. Kucich

June 10, 2002


Appeal from the Circuit Court of Cook County. 98 L 13737 The Honorable Sharon Johnson Coleman, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cohen

Following a heart attack, plaintiff James Petre underwent coronary artery bypass surgery at St. Francis Medical Center. A postoperative wound infection developed, ultimately necessitating both the removal of Petre's sternum and additional reconstructive surgery. Petre and his wife, Jane, brought a medical malpractice action against Dr. Vincent Kucich, who performed the bypass surgery, Kucich's practice group, Cardiovascular Medical Associates, S.C. (CMA), St. Francis Medical Center, Dr. Hershel Wix, Dr. Wix's partners (Drs. David Looyenga, Robert Prentice and George Gustafson) and Dr. Wix's partnership, Hickory Cardiology Associates, Ltd. Certain Hickory physicians were responsible for plaintiff's postoperative monitoring and care.

Prior to trial, plaintiffs settled with and dismissed St. Francis Medical Center. Plaintiffs also dismissed Drs. Wix, Looyenga, Prentice and Gustafson, as well as Hickory Cardiology Associates, Ltd.

Following a jury trial, the circuit court entered judgment in the amount of $465,000 on a verdict rendered in favor of plaintiffs and against defendants Kucich and CMA.

On appeal, defendants argue that the trial court erred in relying on Spain v. Owens Corning Fiberglass Corp., 304 Ill. App. 3d 356 (1999), in excluding evidence of the alleged negligence of the previously dismissed Hickory physicians, thus preventing defendants from asserting the so-called "empty chair" defense, i.e., from claiming that postoperative negligence on the part of the dismissed Hickory physicians was the sole proximate cause of Petre's injuries. Defendants contend that the trial court's decision to exclude such evidence and subsequent refusal to tender an appropriate jury instruction on sole proximate cause (Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1989) (hereinafter IPI Civil 3d No. 12.04)) denied defendants a fair trial.

Defendants also argue that the trial court erred in: (1) precluding defendants from presenting the expert testimony of Dr. Daniel Hirsch with respect to the use of prophylactic antibiotics; and (2) allowing improper impeachment of defendants' expert Dr. Ronald Curran with what defendants claim to be a prior consistent statement. Finally, defendants assert cumulative error predicated on: (1) the trial court's rulings during voir dire and on certain other motions in limine; (2) the trial court's comments before the jury with respect to a defense witness; and (3) comments by plaintiff's counsel during closing arguments.

We find that the trial court misapplied Spain and erred as a matter of law both in precluding evidence of the dismissed Hickory physicians' conduct and in refusing to give the appropriate jury instruction, thereby denying defendants a fair trial. For the reasons that follow, we reverse the judgment of the trial court and remand for a new trial.


On November 17, 1996, plaintiff James Petre suffered a heart attack and was taken to the emergency room at St. Mary's Hospital in Kankakee, Illinois, where he received cardiopulmonary resuscitation and was placed on a ventilator. Dr. Hershel Wix, a cardiologist, evaluated defendant at St. Mary's and recommended that he be transferred to St. Francis Medical Center in Blue Island, Illinois, to undergo a triple coronary artery bypass graft (CABG). Dr. Wix admitted Petre to St. Francis and was one of five cardiologists whose treatment stabilized Petre's heart over the next eight days.

Along with other medical problems, doctors suspected Petre suffered from aspiration pneumonia, which results when digestive materials are partially regurgitated and inhaled into the lungs. Petre's attending cardiologists consulted with a Dr. Vaishnov, a pulmonary disease specialist. In order to manage Petre's suspected pneumonia, Dr. Vaishnov and Petre's attending cardiologists administered the antibiotics Ancef, clindamycin and ceftazidime prior to the CABG procedure.

On November 26, 1996, Dr. Kucich performed Petre's CABG surgery and thereafter continued Petre on a regimen of both clindamycin and ceftazidime. Pursuant to standing orders of the physicians at St. Francis Medical Center and after conducting his own clinical evaluation, Dr. Kucich elected not to prescribe vancomycin to Petre as a postoperative prophylactic antibiotic. (Prophylactic antibiotics are utilized to prevent bacteria, including those normally present on the skin, from infecting a surgical wound.)

After the CABG procedure, Dr. Kucich and assisting surgeon Robert Applebaum tracked Petre's progress for the initial two-day postoperative period. In accordance with the custom and practice of St. Francis Medical Center, Petre's attending physicians then managed his clinical care. Cardiologists, including Drs. Looyenga and Gustafson, as well as the nurses and staff of St. Francis Medical Center, managed Petre's day-to-day postoperative care, including observing the surgical wound, evaluating Petre for discharge and signing his eventual discharge order.

On December 2, 1996, the date of Petre's discharge, a St. Francis nurse took a culture sample from Petre's surgical wound. A resulting lab report directed to Dr. Gustafson indicated the presence of methycillin-resistant Staphylococcus epidermis (MRSE) bacteria, a strain against which the various antibiotics Petre was taking had little effect. Dr. Looyenga examined Petre and approved his discharge. At the time of Petre's discharge, Dr. Kucich was unaware of the results contained in the lab report. Dr. Kucich had no further clinical contact with Petre following his discharge.

Beginning on December 6, 1996, Dr. Wix followed Petre's recovery from Wix's office in Kankakee. Dr. Wix, examining Petre on December 6, 1996, found no outward sign of any difficulties with Petre's surgical wound. Petre made further follow-up visits to Dr. Wix on December 10, 13 and 20, 1996. On each of these visits, Dr. Wix noted a "serous [watery] discharge" from Petre's surgical wound. During a subsequent office visit on January 3, 1997, Dr. Wix noted a worsening of the condition of Petre's sternal wound and suspected the presence of a bacterial infection.

Dr. Wix referred Petre to an infectious disease specialist, Dr. Daniel Hirsch, who diagnosed Petre with a sternal wound infection. *fn1 Due to the severity of the infection, Dr. David Dreyfuss (a consulting plastic surgeon) performed a "debridement" (removal of contaminated and/or dead tissue) and removal of Petre's sternum, as well as further reconstructive surgery. Dr. Dreyfuss continued to monitor Petre's status and on May 1, 1997, released Petre to return on an as-needed basis.

Petre and his wife, Jane, subsequently filed suit against, inter alia, both Dr. Kucich personally and Kucich's practice group, Cardiovascular Medical Associates, S.C. (CMA), alleging negligent failure to prescribe the antibiotic vancomycin, which is effective against MRSE bacteria, on a prophylactic basis. The Petres' complaint further alleged that defendants: (1) prescribed excessive amounts of corticosteroids, thereby predisposing Petre to infection; (2) failed to recognize the presence of an infection prior to Petre's discharge from St. Francis on December 2, 1996; (3) failed to respond appropriately to the lab report identifying the nature of the infection; and (4) failed to provide responsible surgical follow-up after Petre's discharge from St. Francis Hospital. Plaintiffs' complaint alleged similar negligence on the part of Drs. Wix, Looyenga, Prentice and Gustafson (the Hickory physicians), as well as their partnership, Hickory Cardiology Associates, Ltd., and St. Francis Medical Center.

Just prior to trial, plaintiffs settled with and dismissed St. Francis Medical Center. Plaintiffs also dismissed the Hickory physicians and Hickory Cardiology Associates, Ltd.

Plaintiffs then moved in limine to bar defendants from presenting evidence that the Hickory physicians had been joined as defendants in the lawsuit but were then dismissed, and from eliciting or referring to any standard of care opinions concerning the Hickory physicians (hereinafter Plaintiffs' Motion in limine No. 2). After initially ruling that defendants would be permitted to submit evidence of the Hickory physicians' conduct at trial, the trial court reversed itself and excluded any such evidence in reliance on Spain v. Owens Corning Fiberglass Corp., 304 Ill. App. 3d 356 (1999). The trial court also refused to give a jury instruction on sole proximate cause (IPI Civil 3d No. 12.04).

The sole issue presented to the jury was whether Dr. Kucich negligently failed to administer the antibiotic vancomycin to Petre prior to performing Petre's bypass surgery. Plaintiffs' theory was that had Kucich prescribed vancomycin prior to surgery, Petre would not have developed the MRSE infection that ultimately resulted in the removal of his sternum and subsequent reconstructive surgery. No issue was raised, nor was any ...

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