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Snelson v. Kamm

March 20, 2003

ROBERT SNELSON, APPELLEE AND CROSS-APPELLANT,
v.
DONALD KAMM, M.D., ET AL. (DONALD KAMM, M.D., APPELLANT AND CROSS-APPELLEE).



The opinion of the court was delivered by: Justice Thomas

Agenda 27-November 2001.

Plaintiff, Robert Snelson, brought a negligence action against defendants, Donald Kamm, M.D. (Kamm), and St. Mary's Hospital of Decatur (St. Mary's). Following a jury trial in the circuit court of Macon County, a verdict was returned in favor of Snelson and against Kamm and St. Mary's in the amount of $7 million. After a hearing on defendants' posttrial motions, the trial court granted St. Mary's a judgment notwithstanding the verdict (judgment n.o.v.) on the issue of proximate cause and granted Kamm a new trial on the issue of damages, setting aside the $7 million award. The appellate court consolidated the separate appeals by Snelson and Kamm, and affirmed the orders of the trial court. 319 Ill. App. 3d 116. We allowed Snelson's and Kamm's petitions for leave to appeal (177 Ill. 2d R. 315) and also consolidated the appeals.

Before this court, Snelson contends that the trial court erred by: (1) granting Kamm a new trial on the issue of damages; and (2) granting St. Mary's motion for judgment n.o.v. Kamm challenges certain of the trial court's rulings and the jury's verdict. Specifically, Kamm claims: (1) he was improperly prevented from examining Snelson's medical expert as to bias; (2) the testimony of Snelson's medical expert should not have been admitted, because it lacked foundation; (3) the jury was improperly instructed; (4) certain medical bills of Snelson's were improperly admitted into evidence; (5) the verdict was tainted by extraneous information; (6) the verdict was against the manifest weight of the evidence; and (7) the verdict is excessive.

BACKGROUND

At the June 1999 jury trial, the following evidence was adduced. In March 1994, Snelson was 58 years old and employed as a clerk by the Illinois Central Gulf Railroad. Snelson was referred to Kamm, a general surgeon, who suggested that Snelson undergo a radiological procedure known as an aortogram or arteriogram, to determine the location of arterial blockages in his legs caused by arteriosclerosis, commonly referred to as hardening of the arteries. Dr. Carlos Capati, a radiologist practicing at St. Mary's, testified that, on March 2, 1999, while attempting to perform a translumbar aortogram on Snelson, he experienced difficulty navigating the guide wire into the thoracic aorta. It appeared that the guide wire instead entered the superior mesenteric artery, which supplies blood to the intestine. Capati withdrew the translumbar needle and the guide wire and attempted to reinsert the guide wire into the aorta. During the second attempt, however, Snelson's blood pressure dropped, he complained of abdominal and back pain and expressed an urge to have a bowel movement. A portable commode was brought in and Capati examined Snelson's stool, but did not notice any discoloration. At that point, Capati terminated the procedure and informed Kamm that he had been unable to complete the test and that Snelson was complaining of back and abdominal pain.

Snelson's son, James Snelson, testified that following the unsuccessful aortogram, he saw his father being brought back to his room on a stretcher, "screaming and yelling." Once in his bed, Snelson began complaining of "a lot of pain in his stomach." He was lying on his side "in a fetal position" with his eyes closed and was sweating profusely.

Snelson also complained of pressure in his stomach and the need to use the bathroom. James stated that he went to the nurses station and told them that his father needed a catheter and one was provided at about 3 or 3:30 p.m. James testified that he left St. Mary's late that afternoon to care for his mother and, prior to his departure, did not see Kamm visit his father. James stated that he spoke to his father by telephone that evening at approximately 8 p.m., and that his father still complained of pain and was not making sense.

The nurses on staff at St. Mary's on March 2 and 3, 1994, recorded notes on Snelson's condition, but none who testified at trial had any independent recollection of the events. The nurses' notes indicate that, following the unsuccessful aortogram, Snelson was returned to his room at 12:40 p.m. He was complaining of pain in his abdomen and cramping and requested a bedside commode. A 12:44 p.m. shift assessment showed that Snelson was alert and complaining of pain. According to the nurses' notes, the pain rated "7" on a scale of 1 to 10. At 12:45 p.m., Snelson had a large bowel movement and continued to complain of severe pain across the middle of his abdomen radiating into his back. At this point, the nurses notified Kamm of Snelson's complaints of abdominal pain. In response, Kamm ordered by phone that Snelson receive blood tests and pain medication, 50 milligrams Demerol by muscular injection, every three hours as needed. Kamm also ordered that Snelson's vital signs be taken every 15 minutes for two hours and then hourly thereafter.

Snelson's vital signs were then checked every 15 minutes from 12:45 p.m. to 2:30 p.m. During this period, plaintiff's temperature stayed below normal, his respirations were normal and remained constant. His pulse rose during the first hour and then fell back to normal the second hour, while his blood pressure dropped and rose throughout the period.

The nurses charted in their flow sheet that a catheter was inserted to empty Snelson's bladder around 3 p.m. A second shift assessment at 3:35 p.m. showed Snelson's bowel sounds were normal, but he continued to complain of abdominal pain. At 4 p.m., Snelson had a bowel movement with blood-tinged mucous. The nurses immediately paged Dr. Kamm, and were advised that he was in surgery at another hospital. Kamm called back at 4:30 p.m. and was advised by a nurse of the bloody bowel movement. Kamm testified that he spoke with the nurse about Snelson's condition at 4:30 p.m., and concluded that the bloody stool was due to a mild hemorrhoid or fissure. Kamm told the nurse he would quickly conclude his duties at the other hospital and would proceed directly to St. Mary's.

At 6 p.m., Kamm arrived at St. Mary's and examined Snelson for 15 or 20 minutes. At this time, Kamm had access to the nurses' notes, shift assessments, flow sheets and vital sign records which had recorded Snelson's condition. Kamm noted that Snelson's vital signs were stable, but he had passed several small blood-tinged stools and was complaining of abdominal pain and difficulty urinating. Kamm found that Snelson's lower abdomen was tender and distended, with diminished bowel sounds. Kamm's notes further state the following: "Concerned about mesenteric insufficiency or thrombo-embolus with ischemia. Will watch closely." Kamm testified that he was not making a diagnosis of mesenteric ischemia, or deficiency of blood circulation to the intestinal system, but rather was "entertaining [it] as a one of the rare possibilities" of arteriographic puncture complications. Rather, at the time, Kamm thought that the most likely cause of Snelson's pain was bleeding into his retroperitoneal area from the puncture sites.

Because Kamm believed that the fullness and tenderness in Snelson's lower abdomen was consistent with a distended bladder, he ordered a catheter inserted. Kamm noted that the catheter caused considerable relief in Snelson's discomfort at that point. Kamm believed that the catheter inserted after his 6 p.m. examination was the first time a catheter had been used on Snelson. However, the nurses' flow sheet, which Kamm had available to him at the 6 p.m. examination, indicated that a catheter had been inserted at 3 p.m. Kamm acknowledged that a catheter could have been ordered before he arrived as part of a postoperative order. At any rate, it was undisputed that the catheter brought pressure relief and lessened Snelson's discomfort.

Kamm further testified that, based on his 6 p.m. assessment, he believed Snelson's condition had stabilized, and that it was therefore safe to increase his pain medication from 50 milligrams to 100 milligrams of Demerol every four hours as needed. He further ordered that Snelson have no food or liquids by mouth, that the nurses check his vital signs every four hours, and that some laboratory work be completed for the next morning. Kamm then left St. Mary's for the evening.

After Kamm's examination, the nurses observed Snelson at least every hour. A nurse's notation for that evening indicates that Snelson had a normal bowel movement and received Demerol at 7 p.m. It was also noted that Snelson slept most of the evening. He was awake at 10 p.m., but was back asleep at 11 p.m. No documentation exists showing that Snelson's vital signs were taken at 10 p.m.

Kamm conferred with the nurses before he went to bed around 10 p.m. and was advised that Snelson was stable and that they had nothing new to report. At midnight, Snelson's vital signs were taken. The section in the shift assessment to indicate level of pain was not marked at that time. St. Mary's nurse Belinda Durbin testified that at 12:45 a.m. on March 3, she administered 100 milligrams of Demerol to Snelson because he was having some pain. She further noted, however, that if he had been experiencing severe pain she would have made a notation of that fact in the records. At 4 a.m., Snelson's vital signs were taken again.

Kamm returned to the hospital on March 3, 1994, and examined Snelson between 6 and 6:30 a.m. It appeared to Kamm that Snelson had not improved over the prior 18 hours, and he had an abnormally high white blood cell count. Over the next four hours, a computerized tomography (CT) scan and abdominal X rays were taken, which showed definite abnormalities, including the presence of air in Snelson's small intestine. Capati, who interpreted the CT scan and X rays, testified that the results were consistent with "small and large bowel infarction," which meant that parts of Snelson's small and large bowel loops were gangrenous or dead. Capati further testified that the most likely cause of that condition was "acute embolism and thrombosis involving the superior mesenteric artery," meaning that a plaque or clot moving within the blood vessel, or a pre-existing plaque or clot, had blocked the superior mesenteric artery. Capati opined that the unsuccessful translumbar aortogram caused the death of portions of Snelson's intestine.

Kamm performed emergency exploratory surgery on Snelson later that morning and found that almost all of his small intestine and half of his large intestine were dead due to lack of blood circulation to the area. It was therefore necessary to remove approximately 95% of Snelson's small intestine and the right half of his large intestine. Snelson was discharged from St. Mary's on March 21, 1994.

With regard to this cause of action, Kamm testified that the nurses had adequately observed Snelson and reported to him everything that he needed to know about Snelson's condition following the unsuccessful aortogram. He further stated that, if he had wanted to perform surgery sooner, he would have; however, he did not think it was indicated. On cross-examination, Kamm admitted that, as with any disease, there are signs and symptoms, and that 80% of patients with mesenteric insufficiency will exhibit abdominal pain often described as out of proportion to the physical findings. He further agreed that blood in the stool can be considered a sign of mesenteric ischemia and that occult blood, not detectible by mere sight, could be found in 75% of such cases.

Dr. James Sarnelle, Snelson's medical expert, testified that he is a general and vascular surgeon familiar with intestinal surgery and the translumbar arteriogram procedure, including its risks and complications. Sarnelle opined that, during Snelson's unsuccessful arteriogram, the guide wire had injured the lining of the superior mesenteric artery, which caused a blood clot to form and,"[o]ver time," led to the death of the intestines from a loss of circulation. Sarnelle testified that he was familiar with the national standard of care for a reasonably well-qualified general surgeon as it related to a patient in Snelson's condition on March 2, 1994, and opined that Kamm's treatment of Snelson following the unsuccessful arteriogram breached the standard of care because Kamm "did not take any action which was necessary to save [Snelson's] small bowel." Sarnelle reasoned: "[Snelson] has all the signs of mesenteric ischemia. In fact, [Kamm] even mentions it in his note at 6 o'clock that he is concerned about ischemia or thrombosis and yet he does nothing, just says will watch closely." According to Sarnelle, Kamm should not have been watching Snelson closely but instead should have immediately performed surgery to restore circulation, which would have saved a large portion of Snelson's intestine.

According to Sarnelle, the following signs and symptoms should have alerted Kamm to the mesenteric ischemia: (1) Capati's indication that during the unsuccessful arteriogram the guide line went into the superior mesenteric artery; (2) Snelson's drop in blood pressure and abdominal pain during the procedure; (3) Snelson's need to have an immediate bowel movement during the procedure; (4) the bloody bowel movements following the procedure; (5) abdominal pain that was severe enough for Kamm to increase the Demerol; and (6) the distention and tenderness of Snelson's lower abdomen during Kamm's 6 p.m. examination.

Sarnelle further opined that "a window of opportunity" existed to prevent the permanent loss of Snelson's intestine. At 6 p.m., Snelson was stable enough to have surgery, and Sarnelle testified that, if revascularization surgery had been performed in a timely fashion on March 2, a large portion of Snelson's intestine could have been salvaged and he would not now be dependent on intravenous supplemental nutrition. Sarnelle testified that the latest point in time that Snelson's intestines could have been saved was midnight on March 2, and "after that it was too late." Sarnelle explained that, while the length of time that intestines will remain viable once blood supply is lost is variable from patient to patient and cannot be determined with 100% certainty, based on the clinical data contained in Snelson's medical records, the latest time his intestine could have been saved was around midnight.

Sarnelle acknowledged that, generally, acute mesenteric ischemia is very difficult to diagnose because the typical patient has an onset of abdominal pain with no clear history of causation. Additionally, the typical patient is elderly and has trouble communicating. However, Sarnelle testified that Snelson's case was different because, unlike the typical patient who is admitted to the hospital several hours after the onset of pain: (1) Snelson was in the hospital at the time the ischemia began; (2) the problems that developed during the unsuccessful arteriogram involved the superior mesenteric artery; and (3) Snelson developed signs and symptoms quickly and did not just arrive at the hospital with "some obscure things going on."

Sarnelle opined that Kamm breached the appropriate standard of care by ordering pain medication for Snelson. In that regard, Sarnelle stated the following:

"[Y]ou should not be giving a patient pain medicine if you do not know what is going on. The problem with the pain medicine is that you mask the findings, the person may have a lot of problems going on in their abdomen, especially mesenteric ischemia you may give pain medicine and they could feel somewhat better, and you don't know whether they are really getting better or I am just thinking they are feeling better yet a catastrophe is brewing."

Finally, Sarnelle acknowledged that he has been involved in approximately 200 medical malpractice cases as a consulting expert and witness, testifying at trial about 20 times, and in all of those cases he represented the plaintiffs. Sarnelle offered no opinion regarding the conduct of St. Mary's nursing staff.

On cross-examination, Sarnelle acknowledged that, depending on the cause of mesenteric ischemia, it can sometimes take days for a reasonably well-qualified surgeon to diagnose that death of the bowels has occurred. Sarnelle also admitted that the medical literature does not set out certain symptoms as "classic," but explained that the literature does not differentiate between arteriogram-induced mesenteric ischemia and other types, instead looking at "all comers." Sarnelle testified that he has performed intestinal revascularization surgery twice in his career, with one patient living and one dying. He estimated the mortality rate for such surgery to be more than 50%.

Grace McCallum, Snelson's nursing expert, testified that nurses are taught and practice the "nursing process," which is a critical thinking process that defines the standard of care that a nurse should follow. McCallum opined that the nursing process was not followed by the St. Mary's nursing staff on March 2, 1994, as evidenced by: (1) the failure to initiate a nursing care plan for Snelson; (2) the failure to request that another physician examine Snelson on the afternoon of March 2, when Kamm was unavailable and Snelson was experiencing abdominal pain; (3) the failure to request a physician after Snelson had a bloody bowel movement at 4 p.m.; (4) the failure to perform a new abdominal assessment following the bloody bowel movement; (5) the failure to document the effectiveness of the pain medication Demerol; (6) the lack of nursing notes regarding Kamm's 6 p.m. examination; (7) the failure to check all ordered vital signs during the evening of March 2; and (8) the failure to call Kamm after checking Snelson's vital signs around midnight on March 2. McCallum further opined that the failure to follow the nursing process increases the likelihood of an unfavorable outcome. However, McCallum testified that she had no opinion as to the proximate cause of Snelson's injury.

Dr. William Pyle, a cardiac, vascular and thoracic surgeon, was one of two medical experts presented by Kamm. Pyle testified that mesenteric ischemia is difficult to diagnose and that the ultimate mortality rate for patients suffering a mesenteric infarction is "in excess of 90 percent." Pyle opined that Kamm met the standard of care in his treatment of Snelson, explaining that, contrary to the assertions of Sarnelle, "there weren't enough findings or symptoms to justify surgery" on March 2. Indeed, after reading the radiologist's description of the procedure, Pyle believed that an internal dissection of the mesenteric artery occurred, rendering the artery like "wet tissue paper," and making revascularization impossible. Pyle noted that revascularization surgery was also not an option if the guide wire inserted during the arteriogram had produced a "showering" of small pieces of plaque and debris which gradually plugged up the artery.

Pyle further opined that Kamm complied with the standard of care in prescribing pain medication to Snelson, testifying that the doses were not high and that, in his experience, patients with mesenteric ischemia have excruciating pain that is intractable to pain medication. Pyle stated that, regardless of what caused the ischemia and regardless of when the revascularization surgery occurred, Snelson's intestines most likely could not have been saved. On cross-examination, Pyle agreed that abdominal pain out of proportion to the physical examination findings is present in many people with mesenteric ischemia. Other symptoms may be abdominal distension and the urge to have a bowel movement, and findings may include blood in the stools. Pyle believed that Kamm's concern about mesenteric insufficiency at 6 p.m. was appropriate because Snelson was then exhibiting some of the signs and symptoms of the condition. Pyle also agreed that revascularization was a known and practiced technique and that, if possible causes of ischemia other than dissection were considered, the probability of revascularization existed, but was low.

Dr. Philip Donahue, a general surgeon testifying as Kamm's other medical expert, also concluded that Kamm did not breach the standard of care in his treatment of Snelson by failing to diagnose mesenteric ischemia, prescribing pain medication or failing to perform revascularization surgery on March 2, 1994. Donohue opined that earlier surgery was not warranted because, on the afternoon of March 2, there was "no evidence" of acute mesenteric ischemia, just a patient "with some non-specific complaints." While Donahue testified it was "a possibility" that the superior mesenteric artery was totally blocked immediately following the arteriogram, he believed that it had occluded over time, basing his opinion, in part, on the fact that Snelson's pain diminished after the catheterization and overnight but reemerged in the early morning.

Mary Delaney, St. Mary's nursing expert, testified that she was familiar with the standard of care applicable to nurses under circumstances similar to those involved here. Delaney opined that the nurses at St. Mary's did not violate the standard of care in treating or monitoring Snelson.

On the issue of damages, Snelson presented, inter alia, his own testimony and that of his treating physician, Dr. Robert Newlin. Newlin testified that the function of the small intestine is to do a significant part of the digestion of food. As a result of the March 3, 1994, surgery during which 95% of his small intestine was removed, Snelson suffers from "short bowel syndrome," a condition which creates diarrhea and a lack of ability to absorb sufficient nutrition and calories. Snelson must therefore rely on hyperalimentation, the intravenous infusion of a solution containing sufficient nutrients to sustain him. The solution is infused into a vein in Snelson's upper chest through a catheter; the catheter is attached to a small machine that injects the nutrition directly into his body. The catheter is a foreign body and bacteria can easily grow on it. Snelson has therefore suffered repeated infections of his catheter site, some of which required hospitalization. Newlin opined that Snelson will continue to suffer from diarrhea and require hyperalimentation for the rest of his life. While Newlin could not say that Snelson's short bowel syndrome had reduced his life expectancy "to a great degree," due to his "various problems," including pre-existing diabetes and arteriosclerosis, Snelson "could live another ten years."

Snelson testified that, after his release from the hospital, he took medical retirement from the railroad. He must be attached to the hyperalimentation device for 12 hours each day, usually from 9 p.m. to 9 a.m. When he unhooks the device, he must be close to a bathroom and remain there for 1 to 1½ hours. Snelson testified that he suffers from chronic diarrhea and must use the bathroom 15 to 20 times each day, consuming most of his waking hours. The hyperalimentation bag weighs between 10 and 15 pounds and must be kept refrigerated. There are numerous steps which must be taken to prepare the bag on a daily basis, including the entering of nutrients and vitamins; the preparation takes 20 to 30 minutes to perform. Sometimes the nutrient solution causes him pain as it enters the catheter, and he requires help from family members to maintain the catheter and catheter site. Snelson has spent a total of almost 1½ years in the hospital since June 1994, mostly for infections of his catheter site. A typical infection which leads to a hospital stay for a catheter change involves chills, a high fever and vomiting. He has had his catheter changed approximately 20 times; the catheter removal can be painful, as are the intravenous antibiotics used for these infections.

Snelson further testified that, because of the hyperalimentation, he must "pretty well stay at home." Although he can eat regular food, the portions must be small and he cannot eat certain foods, such as salad, green beans or corn, or even enjoy his favorite drink, Kool-Aid, because those items are eliminated by his body quickly and mostly unchanged. Snelson acknowledged that, even before the March 3, 1994, surgery, the arteriosclerosis made it hard to walk, restricting his ability to engage in daily activities. Snelson stated that he still hunts and travels to Minnesota to fish and to Indiana to see his daughter. However, if he chooses to do anything ...


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