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Kathleen Smeilis and Willard Smeilis v. Evan Lipkis and Evan Lipkis

March 23, 2012


Appeal from the Circuit Court of Cook County. No. 07 L 011345 The Honorable Irwin Solganick, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

JUSTICE GARCIA delivered the judgment of the court, with opinion.

Justice Lampkin concurred in the judgment and opinion.

Presiding Justice R. Gordon dissented, with opinion. case


¶ 1 The circuit court applied judicial estoppel to the plaintiffs' claims in a refiled medical negligence complaint and dismissed the complaint with prejudice. In the original complaint filed in 2001, the plaintiffs, Kathleen Smeilis and Willis Smeilis, wife and husband, alleged that Kathleen developed a progressive neurological condition while she was a patient at Glenbrook Hospital, which the hospital doctors failed to timely diagnose and treat. According to the plaintiffs' proximate cause expert, Kathleen needed to undergo corrective surgery by August 10, 1999, to avoid permanent injury. On August 12, 1999, Kathleen was released from the hospital and transferred to a nursing home. At the nursing home, Kathleen was under the care of Dr. Evan Lipkis. The plaintiffs settled with the hospital for $3 million and the nursing home for $200,000, leaving only Dr. Lipkis and his corporate entity as defendants. On the eve of trial in 2007, the plaintiffs voluntarily dismissed the complaint against the defendants. The plaintiffs refiled the complaint within 30 days. The plaintiffs' new proximate cause expert witness opined that Kathleen suffered the permanent neurological damage between August 14 and 18, 1999, while she was a patient at the nursing home and under the care of Dr. Lipkis. The new medical expert opined that the hospital defendants that settled with the plaintiffs were not negligent in their care of Kathleen and that fault laid with Dr. Lipkis. The circuit court ruled judicial estoppel barred the 2007 claims and dismissed the refiled complaint. We affirm.


¶ 3 Kathleen Smeilis sustained permanent injuries in August 1999 as a result of a medical condition called cauda equina syndrome (CES). CES is a condition in which a group of nerves that extend out of the lower spine become compressed when something, such as a herniated disk, places pressure on them. It can result in neurological damage, including decreased motor function, loss of bladder and bowel control, and pain or numbness in the lower extremities. When a patient develops CES, doctors consider it an emergency. A delay in performing corrective surgery results in permanent neurological damage.

¶ 4 On August 7, 1999, Kathleen arrived at the emergency room at Glenbrook Hospital (Glenbrook) complaining of extreme pain in her lower back. Kathleen brought with her an MRI film of her back taken on July 19, 1999, which revealed that she had spinal stenosis secondary to a broad-based disc protrusion and nerve root compression. Following admission, Kathleen was placed under the care of several doctors specializing in internal medicine, including attending physicians and resident doctors.

¶ 5 On August 9, a Glenbrook doctor administered an epidural injection to relieve Kathleen's lower back pain. Following the injection, her symptoms got worse. Kathleen complained of persistent pain and numbness in her lower back and lower extremities. At one point, when she attempted to get out of bed, her pain was so severe that she could not stand; she required assistance to use the bathroom.

¶ 6 On August 12, a Glenbrook doctor determined that Kathleen's function in the lower extremities was appropriate and observed no evidence of problems with her bowel or bladder. Based on these findings, Glenbrook discharged Kathleen to Abington Nursing Home (Abington) for rehabilitative treatment. At Abington, Kathleen was placed under the care of Dr. Lipkis. The nursing home records reveal that Dr. Lipkis did not examine Kathleen until August 14, two days after her admission.

¶ 7 During the night of August 12 at Abington, a nurse discovered that Kathleen was having difficulty urinating. The nurse notified Dr. Lipkis, who ordered a catheter or Lasix to provide relief. The next morning on August 13, Kathleen complained of severe calf pain. Upon being informed, Dr. Lipkis opined that the problem was sciatica, which we understand to generally refer to lower back and leg pain caused by compression of the sciatica nerve. On August 14, Dr. Lipkis examined Kathleen for the first time. His examination notes provide limited documentation; nonetheless, Dr. Lipkis testified at his deposition that his evaluation found Kathleen not to display any neurological abnormality.

¶ 8 On August 15, Kathleen complained of constipation. This continued into the following day when Kathleen again complained of urination problems. Dr. Lipkis ordered that Kathleen receive a catheter. Kathleen continued to complain of constipation and urination problems. Dr. Lipkis evaluated her again on August 18. At this time, Dr. Lipkis concluded that Kathleen had signs of spinal cord compression, including lack of sphincter control. He made a notation of this loss of control in the medical record, with a notation that Kathleen had sphincter control on August 14.

¶ 9 On August 18, Dr. Lipkis transferred Kathleen back to Glenbrook. From there, she was transferred to Evanston Hospital, where she underwent immediate surgery to correct the CES. The surgery corrected the problem but, due to the delay in diagnosis, Kathleen suffered permanent neurological damage. As a consequence, she has weakness in her lower extremities and uses a walker; she also has decreased bladder and bowel function; she suffered a loss of sexual function and has problems with reflexes and motor strength.

¶ 10 In 2001, the plaintiffs filed their negligence suit against Glenbrook, the treating doctors at Glenbrook, Abington, Dr. Lipkis, and the corresponding corporate entities of the defendants. The 2001 complaint alleged that Kathleen's injuries were proximately caused by the defendants' delay in diagnosing her CES. The parties engaged in discovery.

¶ 11 The plaintiffs retained as one of their experts Dr. Gary Skaletsky, a neurosurgeon, who testified in his deposition that CES patients require immediate surgery to avoid permanent damage. Following the development of CES, there is a small window of time for surgery to be performed for a CES patient to regain full neurological function. Dr. Skaletsky opined that on August 10, Kathleen was "an urgent surgical candidate." Dr. Skaletsky testified that had surgery been performed on August 10, Kathleen would likely have "significantly more" neurological function. He specifically testified that had the surgery been performed on or after August 11, when Kathleen first experienced an inability to stand, her condition would likely not be any better than her present condition. We set out Dr. Skaletsky's pertinent deposition testimony.

"If she had surgery on the 10th, I believe that she would be significantly more functional neurologically. More likely than not she would have some weakness of her flexors and extensors of the feet. She might have some numbness of the lower extremities.

Had the surgery waited until the 11th when it was indicated she could not stand next to the bedside to go to the bathroom, I think it is likely that her neurological condition would not be much changed from what it is today."

¶ 12 Following the conclusion of discovery, all the defendants, except Dr. Lipkis and his corporate entity, settled with the plaintiffs. The plaintiffs received $3 million from Glenbrook and $200,000 from Abington. The plaintiffs voluntarily dismissed the remainder of their complaint against Dr. Lipkis on September 27, 2007.

¶ 13 On October 17, 2007, the plaintiffs filed a new complaint against Dr. Lipkis and his corporation. The 2007 complaint alleged that Dr. Lipkis was the proximate cause of Kathleen's injuries. The plaintiffs gave notice of a new expert witness, Dr. Andrew Chenelle, a neurologist. The plaintiffs retained the same experts on internal medicine that were deposed in the 2001 action. The defendants filed notice of their intent to call Dr. Skaletsky, the plaintiffs' neurological expert from the 2001 action.

¶ 14 At his discovery deposition, Dr. Chenelle disagreed with many of the opinions that Dr. Skaletsky gave during his deposition. Dr. Chenelle testified that surgery on August 14, 1999, or even several days later, would have left Kathleen in a better condition than her current state. Dr. Chenelle did not "fault" the doctors at Glenbrook for discharging Kathleen when they did or for failing to perform emergency CES surgery on Kathleen before her transfer to Abington. Dr. Chenelle opined that the Glenbrook defendants did not deviate from the standard of care in their treatment of Kathleen. Dr. Chenelle grounded his opinion on Dr. Lipkis's initial examination on August 14, in which he determined that Kathleen had no neurological abnormality; Dr. Chenelle "assumed" this conclusion was accurate. He testified that he worked off this assumption but never stated whether he agreed with Dr. Lipkis's conclusion.

¶ 15 During pretrial proceedings, the circuit court denied the plaintiffs' motion to strike the defendants' affirmative defense of judicial estoppel. Instead, the court converted the defendants' affirmative defense motion into a motion to dismiss the complaint, which it then set for a hearing. Upon consideration of the arguments, the circuit court concluded that the plaintiffs' claims in their 2007 complaint were barred by judicial estoppel and dismissed the complaint with prejudice pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)). The plaintiffs appeal.


¶ 17 The plaintiffs make three challenges to the circuit court's ruling that judicial estoppel barred the plaintiffs' complaint: (1) expert opinions cannot be barred by judicial estoppel; (2) the plaintiffs made no assertions during the 2001 proceeding when no trial ensued to bind them in the 2007 proceeding; and (3) no showing was made that the settlements in the 2001 suit came about because of Dr. Skaletsky's opinion testimony to establish the plaintiffs "benefitted" from an earlier inconsistent position for the purpose of applying judicial estoppel.

ΒΆ 18 The defendants respond that it is undeniable that the plaintiffs' 2001 and 2007 complaints alleged two wholly inconsistent theories of liability. In the 2001 complaint, the plaintiffs alleged the CES developed at Glenbrook Hospital, in accord with Dr. Skaletsky's deposition testimony regarding the necessity of surgery before August 11, 1999, to have avoided Kathleen's extant neurological injuries. In the 2007 complaint, Dr. Chennelle, the plaintiffs' new expert witness, contended that Kathleen did not develop CES until after she was transferred to the nursing home and placed under the care of the defendants on August 12. The defendants assert the circuit court correctly applied judicial estoppel to bar the plaintiffs' claims under the new factual underpinning of the ...

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