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Morus v. Kapusta

May 27, 2003


Appeal from the Circuit Court of Cook County. No. 96 L 12551 The Honorable Richard J. Elrod, Judge Presiding.

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


Following a jury trial, *fn1 the trial court entered judgment on the jury's general verdict in favor of plaintiff Joan Morus (plaintiff) as against defendant Dr. George Kapusta (defendant) in the amount of $1.5 million, with respect to the death of decedent Frank Morus (Morus) upon elective gall bladder surgery performed by defendant. *fn2 Defendant filed a posttrial motion seeking judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied this motion. Defendant now appeals, asking that we reverse the judgment of the trial court and enter judgment in his favor or, in the alternative, that we remand the cause for a new trial. For the following reasons, we affirm.


Decedent Morus, who had a history of congestive heart failure (CHF), was admitted to Christ Hospital in Oak Lawn, Illinois, on June 8, 1995. Initially, he was suffering from swollen legs, a breakdown in his skin and infection. While in the hospital, Morus developed gastric problems, including nausea. It was determined that he was suffering from cholecystitis (diseased gall bladder), and elective cholecystectomy surgery (gall bladder removal) was recommended and scheduled for June 30, 1995. Defendant, a surgeon, was asked to give a surgical consultation, and he agreed with this recommendation.

Upon Morus' admission on June 8, 1995, he was diagnosed by several doctors as being in continued CHF. Four portable chest X rays were taken between June 8 and 13, 1995, and each revealed that Morus had the major symptoms of CHF, including an enlarged heart, pulmonary congestion and bilateral pleural effusions (fluid accumulation in the spaces between the lungs and the chest walls). A full chest X ray was never taken of Morus, nor was any other portable chest X ray taken between June 13 and 30, 1995, prior to the scheduled surgery.

While in the hospital, Morus was taking a daily dose of aspirin in response to concerns regarding his medical history with respect to strokes. Morus continued taking aspirin every day until the day before the scheduled surgery. Also, upon his admission to the hospital, Morus weighed 221 pounds. He was placed on a diuretic, and his weight dropped to 215 pounds. In the 8 days before the scheduled surgery, Morus gained 11 pounds.

Defendant performed surgery on Morus on the scheduled date of June 30, 1995. Defendant did not use a Swan-Ganz catheter or an arterial line during surgery to monitor Morus' heart and lung pressure. The surgery was completed that afternoon, and Morus was taken to the general recovery room. Defendant left the hospital. While in the recovery room, Morus' blood pressure dropped and he began experiencing respiratory problems. Morus was placed on a ventilator and was transferred to the surgical intensive care unit. Morus then went into shock. By 1 a.m. the next day (July 1, 1995), his pupils were dilated and he was non-responsive in a comatose state. Defendant received four telephone calls at several points throughout the night of June 30, 1995, from the on-call surgical resident describing Morus' condition and deterioration. Defendant did not return to the hospital until some time later in the morning of July 1, 1995, between 6 a.m. and 7 a.m. At 9 a.m., defendant and other doctors involved in Morus' care, as well as Morus' family, decided to remove Morus from the ventilator pursuant to his living will, and Morus died. An autopsy revealed that Morus had an enlarged heart and pleural effusions consistent with CHF, and that he had bled internally. The autopsy also showed that Morus had been suffering from renal failure.

Plaintiff, Morus' wife, filed a complaint at law against defendant containing a survival count and a wrongful death count. Plaintiff alleged that defendant violated preoperative, surgical and postoperative medical standards of care in treating Morus, and that defendant's negligence in one or more of these respects was a contributing and proximate cause of Morus' death. The case proceeded through discovery, and during a pretrial conference, plaintiff filed several motions in limine. One included a motion to preclude defendant from submitting any opinions concerning Morus' life expectancy other than that he would not have been expected to live "more than an additional five years." After discussing this with the parties, the trial court granted plaintiff's motion in limine, and stated that the experts' opinions as to Morus' life expectancy would be subject to cross-examination during trial. Later, during a jury instruction conference prior to trial, the court and the parties again discussed Morus' life expectancy. Plaintiff presented an instruction utilizing life expectancy tables, but the court and the parties agreed that the information contained in the tables was not applicable to the instant case based on the evidence that would be presented with respect to Morus' particular life expectancy. A discussion then ensued as to whether the language of the instruction to be presented to the jury should be that Morus would have lived "no longer than five more years" or, rather, that he would have lived "approximately five more years." The trial court concluded that the instruction on Morus' life expectancy should read that he would have lived approximately five years, and stated that this instruction would be revisited later during the trial, "when it comes to [a] more specific [time] [sic]." Before trial had begun, the court read this instruction to the jury. The cause then proceeded to trial. [Unpublishable material under Supreme Court Rule 23 removed here]

Plaintiff presented the expert testimony of Dr. Patrick Sullivan, an internist. Dr. Sullivan opined that defendant breached the standard of care in clearing Morus for surgery, in performing the surgery and in his conduct after the surgery was completed. Dr. Sullivan stated that these breaches were a "contributing and proximate cause" of Morus' death the day after surgery. [Unpublishable material under Supreme Court Rule 23 removed here]

Dr. Sullivan testified as to his opinion with respect to Morus' life expectancy. When asked how long Morus would have lived had the surgery not been performed on June 30, 1995, Dr. Sullivan responded "I believe probably five years." Dr. Sullivan stated that the basis for his opinion was "[j]ust a general survival of patients like [Morus] with the diseases he had." Dr. Sullivan was also asked whether the fact that Morus had a living will indicating he had no desire to be put on dialysis or other life-saving treatments impacted his opinion. Dr. Sullivan stated that this fact "didn't really enter into it."

At the close of plaintiff's case in chief, defendant moved for a directed verdict, asserting that plaintiff did not present sufficient evidence to show that any one of her four theories of negligence was the proximate cause of Morus' death. The trial court denied defendant's motion. [Unpublishable material under Supreme Court Rule 23 removed here]

Dr. Robert Caplan was called by co-defendant Dr. Ann Brennan as an expert witness and his evidence deposition was entered into the record at trial. Dr. Caplan reviewed the depositions of several doctors in this cause, as well as Morus' autopsy report and his medical records. Dr. Caplan provided opinion testimony with respect to Morus' medical condition, the effects of aspirin, and Morus' life expectancy. [Unpublishable material under Supreme Court Rule 23 removed here]

With respect to Morus' life expectancy, Dr. Caplan opined that the surgery Morus underwent was not an emergency procedure, and it was "more likely than not [Morus] would not have died the next day" if the surgery had not been performed. Dr. Caplan testified that "[g]iven the severity of his underlying disease states, [Morus'] life expectancy would be reduced, below that of an individual who did not ...

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