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Scassifero v. Glaser

September 12, 2002

LARRY SCASSIFERO, PLAINTIFF-APPELLANT,
v.
SCOTT E. GLASER; HINSDALE HOSPITAL; AND HINSDALE ANESTHESIA ASSOCIATES, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 97-L-353 Honorable Kenneth Moy, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

Plaintiff, Larry Scassifero, appeals a jury verdict in favor of defendants, Scott E. Glaser, M.D., and Hinsdale Anesthesia Associates, Ltd. Plaintiff brought this medical malpractice action alleging that Dr. Glaser negligently performed an epidural injection, causing plaintiff to develop an epidural abscess. On appeal, plaintiff asserts that the trial court committed a variety of evidentiary errors that justify reversal. For the reasons that follow, we reverse and remand the cause for a new trial.

I. BACKGROUND

On July 8, 1996, plaintiff underwent a discectomy to relieve pain in his back. The surgery was performed by Dr. Michael Zindrick, an orthopaedic surgeon. The surgery provided plaintiff with relief for only a couple of days. Dr. Zindrick referred plaintiff to Dr. Glaser, an anesthesiologist specializing in pain management and a partner in Hinsdale Anesthesia Associates, Ltd.

Dr. Glaser treated plaintiff on July 18, 1996, at Hinsdale Hospital. At that time, plaintiff complained of lower back pain radiating into his right buttock and right thigh. On an increasing scale of 1 to 10, plaintiff rated his pain at level 8. Dr. Glaser took a medical history from plaintiff and reviewed plaintiff's medical records. Upon examination, Dr. Glaser noted that plaintiff was in severe pain and had trouble walking. Plaintiff's neurological examination and reflexes were normal and plaintiff was nontender to palpation. Dr. Glaser observed no signs of infection. Dr. Glaser diagnosed plaintiff with ridiculer pain and sympathetically mediated pain.

Based on his diagnosis, Dr. Glaser decided that plaintiff was a candidate for an epidural injection. Dr. Glaser attempted the procedure using two different approaches. Initially, Dr. Glaser tried the midline approach. Dr. Glaser began by administering an anesthetic. Dr. Glaser made numerous unsuccessful attempts to get a needle into the epidural space. Throughout the procedure, Dr. Glaser administered additional anesthesia as needed while the epidural needle was still in place. In attempting the injection, Dr. Glaser would "reangulate" the needle by partially withdrawing it to change the angle. Dr. Glaser made two or three reangulation attempts. However, he repeatedly struck bone, so he decided to abort the midline approach and try the paramedian approach.

Before commencing the paramedian approach, Dr. Glaser took a break. The parties offered differing recollections of the details of the break. Dr. Glaser did not recall leaving the room during the break, which he estimated lasted only five minutes. Plaintiff testified that the break lasted 10 minutes and that Dr. Glaser left the room during the break. Evelyn Scassifero, plaintiff's wife, testified that she entered the room during the break, and Dr. Glaser was not present during the time she was in the room. Janice Stevenson, the nurse who assisted Dr. Glaser with the epidural injection, testified that she has no recollection of either Dr. Glaser or herself leaving the room during the procedure. Stevenson also could not recall if Dr. Glaser even took a break. In any event, using the paramedian approach, Dr. Glaser was able to reach the epidural space. Upon completion of the procedure, plaintiff experienced significant pain relief. Based on a scale of 1 to 10, plaintiff rated his pain at level 2.

Within a few days of the procedure, plaintiff developed a fever and began to experience pain in his back. Plaintiff sought emergency medical treatment at Hinsdale Hospital, where he was later admitted. Plaintiff was diagnosed with an epidural abscess. Following his discharge from the hospital, plaintiff was given intravenous medication, including antibiotics that he injected through a shunt in his arm. Plaintiff subsequently experienced a second episode of fever. As a result, he was again hospitalized and prescribed a more intense dose of antibiotics.

Plaintiff then filed the instant suit against Dr. Glaser and Hinsdale Hospital. Plaintiff later amended his complaint to add Hinsdale Anesthesia Associates, Ltd., as a defendant. In essence, plaintiff alleged that he developed the epidural abscess as a result of Dr. Glaser's failure to properly perform the epidural injection and the failure to maintain a sterile field. Plaintiff alleged that Hinsdale Hospital and Hinsdale Anesthesia Associates, Ltd., were vicariously liable for Dr. Glaser's alleged negligence. Thereafter, Hinsdale Hospital (co-defendant) settled with plaintiff, and the case proceeded to trial against Dr. Glaser and Hinsdale Anesthesia Associates, Ltd. (collectively, defendants). As noted above, the jury returned a verdict in defendants' favor. This appeal ensued.

II. ANALYSIS

A. Evidence Regarding Contamination of the Equipment Tray

Plaintiff first argues that the trial court improperly limited evidence regarding contamination of the sterile field. More specifically, plaintiff maintains that the trial court improperly excluded his expert witness, Dr. Steven Minore, from testifying regarding the alleged contamination of the epidural equipment tray during Dr. Glaser's alleged absence from the room where the injection was performed.

In his complaint, plaintiff alleged that Dr. Glaser failed to maintain a sterile field during the epidural injection, causing him to develop an abscess. During his discovery deposition, Dr. Minore testified that Dr. Glaser breached the standard of care by leaving the room during the procedure. Dr. Minore opined that under such circumstances there was no guarantee that the equipment tray used for the procedure remained sterile. Prior to trial, defendants filed a motion in limine seeking to bar Dr. Minore from rendering any opinions regarding potential contamination of the epidural equipment tray during the alleged absence of Dr. Glaser from the procedure room. At a hearing on the motion, defendants argued that any testimony that the equipment tray was contaminated during Dr. Glaser's absence would constitute speculation because there was no factual evidence that the tray was contaminated. Plaintiff countered that there was sufficient circumstantial evidence to suggest that the equipment tray was contaminated. The trial court granted defendants' motion, stating in relevant part:

"I'm going to grant that based upon the fact that it's subjective. There's no actual proof, theory that that's the contamination.

Taking into account of having read the doctor's deposition indicating that it was a difficult situation, there was no actual proof that he had left the room or that precautions were not taken, that apparently the Court learned that even the wife was brought into the room, anything could happen.

So, basically, the doctor or the expert, Dr. Minore, said that he merely went to the deposition, read the other deposition. He had no knowledge as to Dr. Glaser having left the room.

So at this -- I am going to grant that motion."

Following Dr. Minore's testimony at trial, and outside the presence of the jury, plaintiff made an offer of proof with respect to Dr. Minore. Dr. Minore believed within a reasonable degree of medical certainty that, if Dr. Glaser left the examining room at any time while performing the epidural block on plaintiff, there would have been a breach of the standard of care for two reasons. First, the sterile area around the patient could not be guaranteed. Second, the sterility of the surgery kit could not be guaranteed. Dr. Minore opined that the kit could become contaminated during the break if the patient coughs, sneezes, or if someone reaches over the kit. He testified that the standard of care thus dictates that if a physician takes a break from a procedure, he should reprepare, redrape, and use a fresh kit and medications. Dr. Minore also testified that, if the physician touched anything with his gloves during the break, he should reglove. Finally, Dr. Minore testified that, assuming Dr. Glaser and his nurse left the examining room for a period of time, came back, and proceeded with the epidural injection using the same tray and the same epidural needle, the breach of sterility would be the proximate cause of plaintiff's epidural abscess.

Plaintiff contends that the trial court erred in barring Dr. Minore's opinions regarding contamination of the epidural equipment tray. According to plaintiff, such testimony was admissible because it had a sufficient basis both in the record and in medical and scientific theory. Defendants counter that it was within the discretion of the trial court to disallow such evidence because there was no evidence to support such testimony.

Expert testimony is admissible if the proffered expert is qualified as an expert by knowledge, skill, experience, training, or education and the testimony will assist the trier of fact in understanding the evidence. Turner v. Williams, 326 Ill. App. 3d 541, 552 (2001). The decision to admit expert testimony lies within the sound discretion of the trial court. Donaldson v. Central Illinois Public Service Co., 313 Ill. App. 3d 1061, 1076 (2000), aff'd, 199 Ill. 2d 63 (2002). Therefore, we will not reverse an erroneous ruling unless the error was prejudicial or the result of the trial has been materially affected. Hiscott v. Peters, 324 Ill. App. 3d 114, 122 (2001).

Here, plaintiff sought to introduce testimony from Dr. Minore that, if Dr. Glaser and his nurse left the examining room for a period of time, came back, and proceeded with the epidural injection using the same equipment tray, the breach of sterility would be the proximate cause of plaintiff's epidural abscess. As previously noted, the trial court would not allow such testimony on the basis ...


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