Appeal from the Circuit Court of Cook County Honorable Jennifer Duncan-Brice Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the opinion of the court: In this medical malpractice action, the plaintiff minor patient and his father appeal from an adverse judgment, arguing a subsequent treating physician should not have been allowed to testify for the defendant physician and that jury instructions improperly referred to the standard of care of a well-qualified "pediatric interventional cardiologist," which is not a board-certified medical specialty. They also contend the judgment is contrary to the manifest weight of the evidence or, in the alternative, the cumulative effect of the two errors was so prejudicial that the trial was not fair.
The following facts are disclosed by the record on appeal. Plaintiff
Luis San Roman was born in 1986 in Madrid, Spain, with cyanosis -- he
was a "blue baby" -- suffering from a heart condition which deprived
his body of oxygen and is known as transposition of the aorta or
transposition of the great arteries. In a normal heart, oxygen-poor
blood returns from the body to the right atrium, travels to the right
ventricle, is pumped through the pulmonary artery into the lungs,
where it picks up oxygen, and oxygen-rich blood travels from the lungs
to the left atrium,
into the left ventricle, and is pumped through the aorta out
to the body. In Luis' heart, however, two, nearly separate
circulations formed in which oxygen-poor blood flowed from the right
atrium directly to the aorta where it returned to the body, and
oxygen-rich blood flowed from the left atrium right back to the lungs.
He also, however, suffered from stenosis (narrowing) of the pulmonary
artery, and introducing a Blalock-Taussig shunt within weeks of his
birth facilitated a weak but normal exchange of blood through his
heart. The blood flow was made more efficient by Rastelli surgery when
Luis was five, in which a donor artery was used to connect his right
ventricle to his pulmonary artery and an artificial baffle and
homograft (donor tissue) were inserted to connect his left ventricle
to his aorta. It was anticipated that Luis would outgrow the baffle
and would need further surgery. This was Luis' situation by the time
he was 13, when the San Roman family was residing in Barcelona, Spain.
On June 22, 1999, in an attempt to delay open heart surgery, defendant Chicago surgeon Carlos E. Ruiz, M.D., who was then employed by defendant Children's Heart Center, Ltd., at Rush-Presbyterian-St. Luke's Medical Center, used a heart catheterization process to insert a stent in Luis' left ventricle. The procedure was not successful, Luis' mitral valve was torn during the attempt, he went into heart failure, and he suffered a series of strokes (which are a known risk in any cardiac procedure). He underwent open heart surgery and he spent about a month in the hospital. Examinations by a cardiologist and a neurologist five weeks later indicated Luis was emotionally traumatized by his experience and that long-term physical concerns included vision abnormalities and potential cognitive deficits.
In 2001, Luis and his father Miguel sued Ruiz and Ruiz's employer,
contending the doctor
recommended and performed the catheterization without
informing the San Roman family it was experimental and very risky and
that open heart surgery would have been the better choice. In their
second amended complaint, filed after Luis turned 18, he sought
damages for medical negligence and his father sought damages pursuant
to the statute commonly known as the family expense act. 750 ILCS
65/15 (West 2000).
On August 28, 2001, Ruiz's defense attorney retained physician James E. Lock, M.D. of Children's Hospital Boston and forwarded unspecified documents for his review. In June 2003, a Chicago surgeon who began treating Luis after the failed catheterization referred Luis to Lock as the more experienced practitioner. Without informing the San Roman family that he was assisting the defense attorney, Lock performed a catheterization procedure on the teenage boy in July 2003. The San Roman family updated their attorney about Luis' care, the attorney relayed this information to the defense attorney, and the defense attorney contacted Lock on August 21, 2003, to confirm that he had treated or was treating Luis. On August 25, 2003, Lock verbally confirmed to defense counsel that he performed the procedure on Luis in July 2003. After this confirmation, Lock continued to assist the defense but neither he nor defense counsel advised the San Roman family or their attorney of the relationship.
Instead, on September 12, 2003, Ruiz filed a motion for protective
order seeking the defense attorney's "right to continue to use Dr.
James Lock as his retained consultant as has been the case for the two
years before 'treating physician' status occurred."*fn1
Ruiz indicated Lock's
established role was "to consult on and review this matter
and provide his expert opinion regarding the treatment given to
[Luis]." Ruiz argued that "if a plaintiff's later occurring
physician-patient relationship arrangement could be held to preclude
defendant's previously established consulting relationship with a
retained expert, plaintiffs would always establish such a relationship
to defeat defendant's ability to communicate with its retained
experts." Accordingly, the defense attorney wanted "to communicate
with Dr. James Lock outside the confines of formal discovery
procedures with the exception of matters related to his care and
treatment of [Luis] which [the attorney assured the judge] would be
conducted only pursuant to *** Supreme Court Rule 201." Ruiz concluded
with a request for "a protective order allowing the defendant's
counsel to communicate with Dr. James Lock pursuant to the authorized
methods of discovery outlined by Supreme Court Rule 201." Within a
week, on September 19, 2003, the defense attorney drafted and
presented an agreed order for the judge's entry without a hearing. The
meaning of this order is currently in dispute:
This matter coming to be heard on defendant CARLOS RUIZ, M.D.'s Motion for Protective Order, due notice having been given and the court being advised in the premises, it is hereby agreed by the parties and ordered as follows:
1. [The motion] *** is granted. Defendant DR. RUIZ (and his attorneys and representatives) may continue to retain, consult with and communicate with his retained consulting pediatric cardiology expert Dr. James Lock as to any and all matters relating to the care and treatment of the plaintiff LUIS SAN ROMAN rendered by DR. RUIZ and others at Rush-Presbyterian-St. Luke's Medical Center and any and all medical conditions, alleged injuries and damages flowing therefrom before the care and treatment rendered by Dr. James Lock or others at Boston Children's Hospital to the plaintiff LUIS SAN ROMAN.
2. Nothing in this order authorizes defense counsel or representatives of defendant CARLOS RUIZ, M.D. to obtain medical records or information through means other than formal discovery ***."
Although lawyers on both sides of the case were now aware of Lock's dual relationship, the San Roman family was not when Lock rendered "some brief follow-up [to Luis] in 2004."
Luis celebrated his eighteenth birthday on June 1, 2004.
The San Romans' attorney deposed Lock in late July 2005 and learned that he had never disclosed to the family or their referring physicians that he was helping Ruiz's attorney. Up until that point, the San Romans' attorney ...