Appeal from the Special Circuit Court of of Delphine Cook County. No. 99 L 13912 The Honorable John Grogan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
On January 14, 1998, Delphine Mansmith died of a brain stem abscess caused by an acute staph infection that developed after she received an epidural steroid injection for back pain. Her husband, the plaintiff Harold Mansmith, sued the defendant, Anjum Hameeduddin, M.D., and R. Lawrence Ferguson, M.D. for medical malpractice. The plaintiff and Dr. Ferguson reached a settlement agreement before the jury reached its verdict. A jury found for the plaintiff and awarded damages in the amount of $1,198,734.94. After a setoff in the amount paid by Dr. Ferguson of $750,000, judgment was entered against Dr. Hameeduddin in the amount of $448,734.94.
On appeal, Dr. Hameeduddin argues that the trial court erred when it denied her pretrial motion for summary judgment, her motions for a directed verdict at the close of the plaintiff's case in chief and at the close of all of the evidence, and her posttrial motion for judgment notwithstanding the verdict because the plaintiff did not prove she deviated from the standard of care and did not and could not prove that she was the proximate cause of Mrs. Mansmith's pain and suffering and ultimate death under both survival and wrongful death causes of action. She also contends that the trial court erred when it (1) refused to instruct the jury that Dr. Ferguson reached a settlement agreement with the plaintiff and (2) taxed the costs of Dr. Ferguson's videotaped evidence deposition to her. For the reasons that follow, we affirm in part and vacate in part the judgment of the trial court.
Dr. Hameeduddin was Mrs. Mansmith's primary care physician. Mrs. Mansmith was an insulin-dependent diabetic and obese. In February 1996, Mrs. Mansmith first complained of back pain. Dr. Hameeduddin prescribed conservative treatment, which consisted of back exercises, injections of DepoMedrol for pain, and physical therapy. By June 1996, Mrs. Mansmith's pain returned, and she experienced numbness in her left leg and had difficulty walking. Dr. Hameeduddin ordered an MRI scan for Mrs. Mansmith. The MRI report dated June 28, 1996, stated that Mrs. Mansmith had a small focal herniation at the L5-S1 vertebra, a large left lateral bulge at the L4-L5 vertebrae, and a mild bulge at L1-L2.
Dr. Hameeduddin referred Mrs. Mansmith to Dr. R. Lawrence Ferguson, a neurosurgeon. In August 1996, after examining Mrs. Mansmith, Dr. Ferguson diagnosed her with spinal stenosis*fn1 and a bulging disc at the L4-L5 vertebrae. Dr. Ferguson recommended surgery. Specifically, he recommended that Mrs. Mansmith undergo a decompressive laminectomy*fn2 to remove the bulging disc at the L4-L5 area of her spine. While the surgery would not necessarily alleviate Mrs. Mansmith's back pain, it would help relieve the numbness in her leg. Prior to surgery, Dr. Hameeduddin prepared Mrs. Mansmith's preoperative history, which detailed she had spinal stenosis at the L4-L5 area.
On August 12, 1996, Dr. Ferguson performed surgery on Mrs. Mansmith. Instead of operating at the L4-L5 level, he performed the laminectomy at the L1-L3 level. In essence, Dr. Ferguson left untreated the stenosis and bulging disc at the L4-L5 level. In his postoperative report, which he sent to Dr. Hameeduddin, Dr. Ferguson stated that he performed the laminectomy at the L4-L5 level. Following surgery, Mrs. Mansmith was treated by both Drs. Hameeduddin and Ferguson for a postsurgical wound infection. By December 1996, the infection had healed.
In April 1997, Mrs. Mansmith again complained of lower back pain and pain radiating down her left leg. Once again, Dr. Hameeduddin prescribed physical therapy. Although her pain subsided for a time, by August 1997, Mrs. Mansmith was in excruciating pain with numbness in her lower extremities. Because she was not responding to conservative treatment, Dr. Hameeduddin ordered a second MRI. The MRI report received by Dr. Hameeduddin showed that Mrs. Mansmith had surgery at the L1-L3 vertebrae. It also showed that the presurgery pathology, the spinal stenosis and bulging disc at the L4-L5 vertebrae, remained unchanged. Dr. Hameeduddin recognized the inconsistencies between Dr. Ferguson's postoperative report and the second MRI, but she did not inform Dr. Ferguson or Mrs. Mansmith about those inconsistencies. Dr. Hameeduddin explained:
"At that point, I was not aware of what had exactly happened. I'm not a surgeon; I'm not a radiologist. I looked at the report and I - - I reviewed the operative report again and it was very confusing because the operative report did say that the patient was operated on L5, S1."
Mrs. Mansmith indicated that she did not want to go back to Dr. Ferguson and the Mansmiths requested a referral for a second opinion; Dr. Hameeduddin referred Mrs. Mansmith to Dr. George Miz, an orthopedic surgeon. In the course of her referral of Mrs. Mansmith to Dr. Miz, Dr. Hameeduddin provided only the second MRI scan report and film; Dr. Hameeduddin did not forward to Dr. Miz the report of the first MRI scan (presurgery) showing stenosis at the L4-L5 level; nor did Dr. Hameeduddin forward Dr. Ferguson's postoperative report in which he wrongly stated that he performed the laminectomy at the L4-L5 level.
Based on his review of the second MRI report, Dr. Miz recommended that Mrs. Mansmith lose weight and that she receive an epidural steroid injection, so long as she did not have an infection in her spine. He did not recommend surgery because Mrs. Mansmith had undergone a laminectomy at L1-L3 by Dr. Ferguson the previous year and he wanted to attempt conservative treatment first. If, however, the epidural did not relieve Mrs. Mansmith's pain, Dr. Miz would have considered surgery.
In correspondence dated August 28, 1997, to Dr, Hameeduddin, Dr. Miz stated, "Her lumbar MRI scan we reviewed and shows evidence of previous decompression from L1 to L3. *** At L4-L5, she has significant residual central spinal canal stenosis." In correspondence dated October 7, 1997, to Dr. Hameeduddin, Dr. Rene Santos, an infectious disease specialist who examined Mrs. Mansmith for infections before the epidural steroid injection was administered, stated, "She underwent a lumbar laminectomy (L1-L3) by Dr. Ferguson last year for diskitis and spinal stenosis."
On December 23, 1997, Dr. Holly Carobene, an anesthesiologist and pain management specialist, administered the epidural steroid injection. In early January, Mrs. Mansmith complained of severe headache and back pain. On January 14, 1998, Mrs. Mansmith died from an acute staph infection. The epidural injection introduced bacteria into Mrs. Mansmith's spinal canal, which, after it reached her brain, caused a brain stem abscess that killed her. The initial autopsy indicated only that Mrs. Mansmith died as a result of a brain stem abscess. An exhumation performed in April 2002 showed that the brain stem abscess was caused by bacteria introduced during the epidural steroid injection.
In December 1999, the plaintiff sued Dr. Hameeduddin for medical malpractice pursuant to the Survival Act (755 ILCS 5/27-6 (West 1998)), and wrongful death pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)).*fn3 In his third amended complaint, which was based on the autopsy, the plaintiff alleged that Dr. Hameeduddin breached her duty of care in that she did not tell Mrs. Mansmith that she had a vertebral bone infection.
In June 2003, Dr. Hameeduddin filed a motion for summary judgment, arguing that no evidence in the record existed to support the claims that (1) any of her acts or omissions were the proximate cause of Mrs. Mansmith's death or (2) that her failure to report impacted Mrs. Mansmith's subsequent treatment. Later that month, the plaintiff filed a motion for leave to amend his third amended complaint to correspond to the exhumation report, which the trial court granted. In the fourth amended complaint, the plaintiff specifically alleged: (1) Dr. Hameeduddin did not inform Mrs. Mansmith or Dr. Ferguson, or the other physicians, that Dr. Ferguson had intended to, but did not, operate on the L4-L5 vertebrae and (2) had Mrs. Mansmith been informed of the mistake, she would have gone to the University of Chicago medical centers for the surgery and would not have agreed to an epidural steroid injection. On July 31, 2003, the trial court denied Dr. Hameeduddin's motion for summary judgment, treating the motion as if it related to the fourth amended complaint.
At trial, Dr. Larry Lustgarten, plaintiff's retained neurosurgeon, opined that if Dr. Ferguson had performed Mrs. Mansmith's surgery at the L4-L5 vertebrae, Mrs. Mansmith would not have needed the epidural steroid injection that caused her death. However, he testified that in Mrs. Mansmith's case, an epidural steroid injection was appropriate and that its administration was within the standard of care. He opined that it was appropriate for a family practitioner, like Dr. Hameeduddin, to defer to a specialist about orthopedic and neurological issues. He also testified that a person could get an infection from an epidural injection even with the best care.
Dr. Finely Brown, plaintiff's retained family practice expert, opined that Dr. Hameeduddin violated the standard of care by not telling Mrs. Mansmith that Dr. Ferguson operated on the wrong vertebrae, and by not coordinating her care with him and letting Dr. Ferguson know that he operated on the wrong level. Dr. Brown explained that when a primary care practitioner discovers an inconsistency between what a surgeon says he did and what that surgeon actually did, the practitioner must do two things: (1) ask the surgeon to resolve the discrepancy, and (2) inform his patient of the discrepancy. Because Mrs. Mansmith did not know that Dr. Ferguson operated on the wrong level, Dr. Brown opined that she could not seek appropriate medical treatment and was exposed to an unreasonable risk associated with receiving the epidural steroid injection. In Dr. Brown's opinion, Dr. Hameeduddin's failure to inform Mrs. Mansmith of the discrepancy between what Dr. Ferguson said he did and what he actually did, proximately caused her pain and suffering, and her death.
Dr. Ferguson's videotaped evidence deposition testimony was played for the jury. He testified that he operated on a level different from what he intended. Although Mrs. Mansmith's pathology did not change, she did have some improvement in her symptoms following the surgery. Dr. Ferguson testified that he did not agree with the use of the epidural steroid injection because Mrs. Mansmith had a compressive lesion, she was diabetic, and she had a previous infection in the area of the first surgery. If Mrs. Mansmith had returned to his care, he would have suggested that she have further surgery on the L4-L5 level. He opined that surgery was better for Mrs. Mansmith because the surgery would have decompressed her nerve roots, which caused her pain and numbness. Although he recognized that the rate of infection for surgery and epidural steroid injections was approximately the same, he explained that the infections were different. An infection resulting from a surgery would be superficial, while an infection from an injection would be deep.
Dr. Charles Fager, an expert in neurosurgery retained by Dr. Ferguson, testified that in his opinion, the epidural steroid injection should never have been given. He explained that he never has had faith in such injection for any condition, he never would have considered giving it, and giving it was a clear deviation from the standard of care.
Dr. Hameeduddin opined that she complied with the standard of care in treating Mrs. Mansmith. As a family practitioner, she referred Mrs. Mansmith to specialists for all of her complaints. She admitted that if she became aware that a specialist had improperly or negligently treated her patient, she would have a duty to tell the patient. When asked what her duty, as a family practitioner, was when she received the second MRI report, she stated: "To render her the proper care and send her to the appropriate surgeon to have it reviewed to find out what was still causing her pain." Dr. Hameeduddin also admitted that she knew there was an inconsistency between the postoperative report and the second MRI, but that she did not tell Mrs. Mansmith or Dr. Ferguson about the inconsistencies. She opined that the treatment that she provided Mrs. Mansmith did not cause her injury or death. She testified that in her opinion she did not deviate from the standard of care and nothing she did contributed to Mrs. Mansmith's pain or contributed to her need for the epidural steroid injection that killed her.
Dr. Steven Eisenstein, a family practitioner, testified as an expert witness for Dr. Hameeduddin. Dr. Eisenstein testified that for complaints of back pain, the family practitioner must assess the problem and decide on treatment. Because back pain is a common problem, family practitioners generally manage the pain through outpatient or conservative treatment and make referrals to specialists if the problem persists. Dr. Eisenstein opined that Dr. Hameeduddin complied with the standard of care in treating Mrs. Mansmith's back pain. He also testified that following Mrs. Mansmith's surgery, it was appropriate for Dr. Hameeduddin to prescribe conservative treatment and that her postoperative care for Mrs. Mansmith's back pain was appropriate and within the standard of care. When asked what Dr. Hameeduddin's duty to Mrs. Mansmith was after receiving the second MRI report, Dr. Eisenstein testified that "[s]he was required to inform the patient that the MRI revealed abnormalities and that she felt these were significant enough that surgical consultation was necessary." Dr. Eisenstein testified that the standard of care did not require Dr. Hameeduddin to discuss the inconsistencies between the MRIs with Dr. Ferguson "[b]ecause the MRI was ordered with the specific idea that this patient had pain and we were trying to get her better." Dr. Eisenstein opined that nothing Dr. Hameeduddin did contributed to Mrs. Mansmith's death.
Following the plaintiff's case-in-chief and again at the close of all of the evidence, Dr. Hameeduddin moved for a directed verdict. She argued that there was no evidence she deviated from the standard of care or that her actions or omissions were a proximate cause of Mrs. Mansmith's death because there was no evidence that if Mrs. Mansmith had known about the inconsistencies, she would have done anything differently. The trial court denied the motions.
After the jury was instructed and had begun its deliberations, Dr. Ferguson and the plaintiff reached a settlement agreement. Dr. Hameeduddin asked the court to give the jury Illinois Pattern Jury Instructions, Civil, No. 2.03, (2000) (hereinafter IPI Civil (2000) No. 2.03), which stated: "R. Lawrence Ferguson, M.D. is no longer a party to this case. You should not speculate as to the reason nor may the remaining parties comment on why R. Lawrence Ferguson, M.D. is no longer a party." The plaintiff argued that the instruction was only appropriate where the parties made comments during closing arguments about the fact that the party that settled is no longer present. The trial court refused to issue the instruction, in part, because "the jury had been deliberating for a substantial period of time, and the court did not want to put the emphasis on the case against Dr. Hameeduddin at the time even though Dr. Hameeduddin's attorneys tendered." The trial court did instruct the jury that each defendant was entitled to a fair consideration of his or her own defense, and each defendant's case was to be decided as if it were a separate lawsuit. Also, the trial court instructed the jury to answer a special interrogatory which asked whether the epidural steroid injection performed by Dr. Carobene was the sole proximate cause of the death of Mrs. Mansmith.
The jury returned a verdict in favor of the plaintiff and against Dr. Hameeduddin and Dr. Ferguson in the amount of $1,198,734.94. The amount of the verdict was reduced by the amount of Dr. Ferguson's negotiated settlement, $750,000. Dr. Hameeduddin filed a posttrial motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion, explaining, "It would appear that the failure to so inform either the plaintiff or Dr. Ferguson depriving [Mrs. Mansmith] of the ability to be informed as to [the] status of her back condition was a question of fact for the jury to determine. They determined."
In April 2004, the trial court granted the plaintiff's motion for the assessment of costs. Specifically, the plaintiff sought to recover the cost associated with Dr. Ferguson's videotaped evidence deposition. The court awarded the plaintiff $1,009.55 in costs against Dr. Hameeduddin for the deposition. On April 27, 2004, Dr. Hameeduddin filed her timely notice of appeal.
On appeal, Dr. Hameeduddin argues that she did not deviate from the standard of care in treating Mrs. Mansmith and, in any event, nothing she did was the proximate cause of Mrs. Mansmith's pain and suffering and ultimate death. She therefore contends that the trial court erred when it denied her motion for summary judgment, motions for directed verdict, and motion for judgment notwithstanding the verdict. She also argues that the trial court erred in refusing to give IPI Civil (2000) No. 2.03 and assessing to her the costs of Dr. Ferguson's videotaped evidence deposition.
The denial of Dr. Hameeduddin's motion for summary judgment is not subject to review on appeal. Where the issue in the motion is decided at trial, any error in the denial merges into the judgment. Nilsson v. NBD Bank of ...