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Scott W. Holzrichter v. Martin Yorath

March 4, 2013

SCOTT W. HOLZRICHTER,
PLAINTIFF-APPELLANT,
v.
MARTIN YORATH, ROSALIND FRANKLIN UNIVERSITY OF MEDICINE AND SCIENCES, CHICAGO MEDICAL SCHOOL, DR. WILLIAM M. SCHOLL COLLEGE OF PODIATRIC MEDICINE SCHOOL OF GRADUATE AND POSTDOCTORAL STUDIES (CMS), FOOT AND ANKLE CLINICS OF AMERICA (FACA), AMERICAN MEDICAL ASSOCIATION (AMA), DEPARTMENT OF PROFESSIONAL REGULATION (IDPR), AMERICAN PODIATRIC MEDICAL ASSOCIATION (APMA), AND ILLINOIS PODIATRIC MEDICAL ASSOCIATION ) (IPMA), )
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County No. 05 L 002037 Honorable Susan Zwick, Ronald S. Davis, and James C. Murray, Judges Presiding.

The opinion of the court was delivered by: Justice Delort

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

Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Scott Holzrichter, who is representing himself, sued defendants, Martin Yorath, D.P.M., Rosalind Franklin University of Medicine and Sciences (RFU), Chicago Medical School (CMS), Dr. William M. Scholl College of Podiatric Medicine School of Graduate and Postdoctoral Studies (Scholl College), Foot and Ankle Clinics of America (FACA), American Medical Association (AMA), Illinois Department of Professional Regulation (IDPR), American Podiatric Medical Association (APMA) and Illinois Podiatric Medical Association (IPMA), seeking damages arising out of injuries he allegedly sustained from podiatric surgery performed by Dr. Yorath. Count I of plaintiff's third amended complaint is directed against Dr. Yorath and sounds in medical battery. Plaintiff alleges vicarious liability against CMS and FACA in counts II and III. He asserts the AMA, APMA and IPMA violated the Illinois Antitrust Act (740 ILCS 10/3(1)-(3) (West 2004)) in counts IV, X and XI. Count V of the third amended complaint alleges negligence against the IDPR. Plaintiff claims fraudulent concealment against Dr. Yorath in count VI. He alleges Dr. Yorath committed medical malpractice, breach of informed consent and gross negligence in counts VII and VIII. Finally, count IX sets forth a claim of res ipsa loquitur against Dr. Yorath.

¶ 2 The circuit court dismissed all counts of the third amended complaint with prejudice except for count I. Dr. Yorath moved for summary judgment on the sole remaining claim for medical battery, and the court granted that motion. Plaintiff appeals pro se. For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 Plaintiff initially injured his left big toe during the late summer of 1995. He testified by deposition that he was running at night and stubbed the toe on a crack in the sidewalk that had been raised upward from the growth of a tree root underneath. According to plaintiff, when his left big toe struck the sidewalk, it "caused the head of the first metatarsal to be moved immediately off the sesamoid apparatus." In other words, the toe "was driven down and below the second toe." Plaintiff further explained that his sesamoid apparatus, the "equivalent to a kneecap of the knee," was dislocated "and it caused a bow strung big toe."

¶ 5 Plaintiff testified that he did not seek medical treatment at the time he stubbed his toe. Plaintiff "thought with time it would heal because I did not really know the state of my foot --and it didn't."

¶ 6 Seven years after he stubbed his toe, plaintiff sought medical treatment at Community Health Clinic. Twice weekly, podiatrists from Scholl College would visit the clinic to provide free services to indigent and uninsured patients. Community Health Clinic scheduled an appointment for plaintiff to see a doctor from the Scholl College.

¶ 7 On November 19, 2002, a Scholl College physician examined plaintiff at Community Health Clinic and diagnosed his left foot ailment as hallux abducto valgus. "Hallux" refers to the big toe, "abducto" refers to the abnormal inward leaning of the big toe and "valgus" refers to the abnormal angulation of the big toe, commonly associated with bunion anomalies. The physician executed a referral form on the same date for plaintiff to be assessed further by the Foot Clinic for the Uninsured at Scholl College (Scholl Foot Clinic). According to plaintiff, he was first seen at the Scholl Foot Clinic in November 2002 by a third-year podiatric medical school student and again on December 10, 2002 by a physician. Medical records dated December 10, 2002 indicate that plaintiff suffered from a "bunion that's painful with running." The medical records, labeled "progress notes," describe plaintiff's pain as "dull and achy of gradual onset of 7 years [sic] duration," caused "while running when he hit his foot against a curb."

¶ 8 On January 21, 2003, Dr. Yorath examined plaintiff's left big toe for the first time. Dr. Yorath diagnosed plaintiff with hallux abducto valgus and suggested an osteotomy or bunionectomy. Plaintiff recalled from the initial examination that Dr. Yorath discussed the type of surgical procedure, a "Z scarf-Meyer osteotomy," and described it. According to plaintiff, Dr. Yorath told him the surgery required "cutting the first metatarsal, which is the longest, biggest long bone in the foot," "moving the two pieces and screwing them back together again."

¶ 9 Plaintiff testified that during the January 21 meeting, Dr. Yorath proposed cutting the extensor hallucis brevis tendon during the course of the Z scarf osteotomy procedure. Plaintiff "immediately told him don't do that." Plaintiff believed Dr. Yorath was joking when he suggested cutting the tendon. Plaintiff stated Dr. Yorath did not explain that cutting the tendon was part of the Z scarf osteotomy procedure and that, when plaintiff objected to the cutting of the tendon, Dr. Yorath remained silent and then changed the subject. According to plaintiff, cutting a tendon during the Z scarf osteotomy procedure was "absurd." Plaintiff testified that he had no medical training, but knew that cutting tendons "had nothing to do with the osteotomy he was describing. An osteotomy and cutting tendons are two totally completely separate things that have nothing to do with each other in any way." He stated it was "preposterous [for Dr. Yorath] to even suggest that [the extensor hallucis brevis] tendon has anything to do with the development of this [hallux abducto valgus] pathology." Plaintiff refused to defer to a physician on the issue of whether cutting the tendon is part of the Z scarf osteotomy procedure and stated a physician who would suggest such a course of action "is a fraud."

¶ 10 The progress notes dated January 21, 2003 reflect that the Z scarf osteotomy procedure recommended to plaintiff "would be better suited to allow for ease of ambulation as well as correction of deformity." The notes stated plaintiff demonstrated an "understanding of rationale as to this approach to [the] problem," but made no mention of plaintiff instructing Dr. Yorath not to cut the extensor hallucis brevis tendon.

¶ 11 Following the initial appointment with Dr. Yorath, plaintiff sent him a January 22, 2003 letter outlining "a layman history" of what he believed happened to his foot when he injured it in 1995. The correspondence included no express instruction to Dr. Yorath to not cut any tendons. Plaintiff stated he sent the correspondence for "strictly physical history."

¶ 12 On January 28, 2003, plaintiff returned for a second visit with Dr. Yorath. The progress notes of the same date, labeled "pre-op physical," document that plaintiff had been extensively consulted as to the nature of his foot condition and the surgical remedy. During the January 28 appointment, plaintiff acknowledged Dr. Yorath had expressed he was contemplating cutting the tendons during the procedure. Plaintiff reiterated to Dr. Yorath that he did not want any tendons to be cut. According to plaintiff, each time Dr. Yorath mentioned cutting the tendon, plaintiff responded, "don't do that." Plaintiff does not recall having a thorough conversation with Dr. Yorath regarding the status of his foot condition or his surgical options. He also denied having a thorough conversation with Dr. Yorath regarding the planned surgical procedure. Plaintiff testified, however, that he was allowed to ask Dr. Yorath questions and did so during his visits with Dr. Yorath prior to the surgery. Dr. Yorath's Illinois Supreme Court Rule 213(f) (Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007)) disclosures state that Dr. Yorath would testify he explained to plaintiff that severing of the tendons is part and parcel of the Z scarf osteotomy procedure.

¶ 13 Plaintiff testified that at the end of the January 28 appointment, he told Dr. Yorath that he wanted to go forward with the Z scarf osteotomy procedure, but did not authorize the cutting of any tendons. Plaintiff believed cutting the tendons involved "a totally separate procedure" and that Dr. Yorath's suggestion to cut the tendons was "a mere like whimsical experiment on his part." The Scholl Foot Clinic scheduled plaintiff for preoperative blood work on February 13, 2003 and surgery on February 18, 2003.

¶ 14 Plaintiff recalled a February 13, 2003 meeting with Dr. Yorath, but Dr. Yorath's progress notes only reflect a February 17, 2003 preoperation confirmation call with "all questions answered." The record does not include a corresponding February 13 progress note indicating an appointment with Dr. Yorath.

¶ 15 Plaintiff described the February 13 appointment as a "discussion," rather than as an exam. Plaintiff testified, "I don't know whether I brought up the letter of [January] 22nd again. *** I did try to get an idea of what he's going to do and again, he wasn't very verbal. He didn't tell me much about the surgery. But I just told him, be conservative and do not snip tendons." Plaintiff believed the purpose of the February 13 appointment "was to get both of us clearly understanding what was going to happen on the 18th." He could not recall whether he asked Dr. Yorath any questions about the surgery. Plaintiff stated that Dr. Yorath was "distant" during the appointment.

¶ 16 On February 18, 2003, plaintiff presented to the Scholl Foot Clinic for the Z scarf osteotomy procedure. Prior to the surgery, plaintiff read and signed a consent form authorizing Dr. Yorath to perform a "Scarf 'Z' bunionectomy of the Left foot," which includes "cut[ting] the big toe bone [and] mov[ing] it to reduce pain [and] stabliz[ing] the base [with] 2 screws." A third-year podiatric medical student, J.J. Konkol, filled out the consent form and explained the surgery, consent form and the possible risks and complications to plaintiff. Plaintiff testified that Konkol did not state tendons would be cut during the procedure. Plaintiff told Konkol that he did not want any tendons to be cut during the surgery, but did not ask Konkol to include that language in the consent form. Plaintiff acknowledged that the consent form would not include all the details of the surgical procedure, but would have expected the form to include an "EHB release" if cutting the tendons was part of the surgery.

¶ 17 The consent form plaintiff signed states the following:

"All questions that I have were answered fully to my satisfaction. Alternatives, including not having surgery, have been explained to me, along with their potential risks and benefits. I have decided upon the surgery described herein."

The consent form also provides, "I understand that possible risks and complications may include, but are not limited to *** [t]he possibility that no improvement in my condition may occur after surgery has been explained to me and I understand that no guarantee of improvement can be made."

¶ 18 Dr. Yorath's operative report, dated February 18, 2003, documents that he performed the surgery with the assistance of two third-year podiatric medical students, Konkol and Miguel Rodriguez. Plaintiff testified that he was under a local anesthetic throughout the procedure and was able to listen to Dr. Yorath narrate the surgical process to the medical students assisting. Although under a local anesthetic, plaintiff was able to listen to every word Dr. Yorath said during the surgery.

¶ 19 Plaintiff recalled several events that occurred during the procedure. According to plaintiff, Dr. Yorath made the first incision. Dr. Yorath then "mentioned that the sesamoid bone was stuck in place, and he couldn't budge it with his fingers; and that was very unusual." Plaintiff recalled Dr. Yorath stating that he would leave the sesamoid stuck in place and correct the problem by releasing the connective tissue. Plaintiff testified that Dr. Yorath never mentioned the word "tendon" during the surgery, but plaintiff understood "connective tissue" meant the tendons. Plaintiff stated that the term "connective tissue" was a vague term that could mean something other than tendons, such as ligaments. Plaintiff regretted not asking any questions during the surgery. He stated in his testimony that after Dr. Yorath described the sesamoid as stuck, "I wish I would have opened my mouth right then and tell him, either deal with the sesamoid or stop the procedure." Plaintiff agreed, however, that the stuck sesamoid "was significant" and "that although it might not have been what [Dr. Yorath] necessarily expected, it was one that had to be addressed." Plaintiff recalled from the surgery that, once Dr. Yorath encountered the stuck sesamoid, "he tried to get around the problem by -- he said he was going to release this connective tissue here."

¶ 20 Dr. Yorath's operative report documented the procedure in detail as follows:

"A 7 mm incision was made over the dorsum of first metatarsophalangeal joint, medial to the extensor hallucis longus tendon. The incision was deepened through subcutaneous tissue with care taken to identify and retract all vital neuro-vascular structures. A capsular incision was made at the metatarsophalangeal joint and the capsule/periosteum were reflected off the first metatarsal head. The head of the first metatarsal was exposed medially. The cartilage was white with a dorsal osteophytosis. Power equipment was used to remove the medial emminence from the first metatarsal head, just medial to the sagittal groove. A lateral release was performed severing the tendons of Adductor Hallusis, collateral ligaments, ligamentous attachments of the fibular sesamoid. Using a sagittal saw, a 'Z' type osteotomy was performed in the first metatarsal. Internal fixation was obtained with two 18 mm 2.7 mm cortical screws. The wound was irrigated with copious amounts of normal saline solution. A medial capsulotomy was peformed and then the capsule was closed with a 2-0 vicryl using simple interrupted sutures. The Extensior Hallus Bevis tendon was then released. The wound was closed using Subdermal suture technique with 4-0 Monocryl."

Following the suturing of incision site, Dr. Yorath dressed the wound using a four-inch sterile gauze. An Ace bandage was applied to the right foot for compression and protection. Dr. Yorath noted no complications in the operative report.

¶ 21 At the conclusion of the surgery, plaintiff was given discharge instructions to: (1) go directly home and lie down; (2) keep his foot and leg elevated above hip level; (3) not bear weight on the foot any more than necessary; and (4) not remove the surgical bandages and keep the left foot dry. Plaintiff testified that he understood he was supposed to keep his left foot wrapped until he returned for his postoperative appointment. Plaintiff knew that meant "don't shower, don't wet, you know keep the wound out of the shower."

¶ 22 Within the first few days following the surgery, plaintiff's left foot "became unbearably itchy." Plaintiff removed the surgical bandages and observed a water blister. He testified that he "tried to use a sponge bath to clean the area without soaking it -- I didn't soak it in the water because, you know, it's too short after the surgery; but I think I sponge bathed to try to clean the area as much as I could to relieve some of the itching."

¶ 23 Medical records dated February 25, 2003 indicate that four days after the surgery, plaintiff removed the surgical bandages due to intolerable itching and observed a water blister. The records documented that plaintiff redressed the wound with toilet paper and changed the dressing with toilet paper daily. The records reflected plaintiff had been soaking his left foot in a bath with Epsom salt daily since removing the bandages.

¶ 24 Plaintiff testified he used toilet paper to dress the wound because "it's available and it's sterile." Plaintiff took the toilet paper from a common bathroom area shared by other tenants of the Covenant Hotel where he resided.

¶ 25 On February 25, 2003, plaintiff walked two miles to his first postoperative appointment. Plaintiff testified Dr. Yorath expressed alarm at the condition of his foot, the itching of the foot, the presence of a blister on the foot, the removal of the bandages and dressing of the wound with toilet paper. Dr. Yorath told plaintiff that he probably had cellulitis, a soft tissue infection. He prescribed Keflex, an antibiotic to treat the infection, instructed plaintiff not to remove the dressings on his foot and to keep the foot elevated until the next appointment in two days. Plaintiff testified he left the Scholl Foot Clinic and walked two miles home. Plaintiff walked to and from the Scholl Foot Clinic for each of his subsequent postoperative appointments.

¶ 26 On February 27, 2003, plaintiff returned for another appointment with Dr. Yorath.

Plaintiff did not follow Dr. Yorath's instructions to begin taking the antibiotic prescribed to him because he adamantly believed he did not have an infection. The February 27 medical records confirm plaintiff refused to take the Keflex because he "doesn't feel that he has an infection." Plaintiff testified that, following the surgery, he "really lost [his] faith in Dr. Yorath totally after [he] got all these stories from him as to why [his] foot was still not fixed." Plaintiff further stated, "to the extent if [Dr. Yorath] at all criticized the use of the toilet paper tissue, that would have been further reason to poo poo anything he would say because that's totally sound sanitation wise."

¶ 27 Dr. Yorath strongly suggested to plaintiff that he take the antibiotics for the infection in his foot. He also suggested plaintiff go to Cook County Hospital to have the infection treated, but plaintiff refused.

¶ 28 Plaintiff returned to the Scholl Foot Clinic to see Dr. Yorath on March 4, 2003. Dr. Yorath took X-rays of plaintiff's left foot, which indicated possible osteomyelitis, an infection in the bone. Plaintiff again refused to take antibiotics and go to Cook County Hospital for treatment of the infection. Plaintiff testified that he had no problems with his foot at that time.

¶ 29 Medical records of the March 4 visit document that plaintiff had "multiple swollen infected bullae on foot which is hot and swollen." Plaintiff told Dr. Yorath that he had a fever the previous night which had receded by morning. Plaintiff treated the bullae (blisters) by cutting the tops off and draining the pus. He then scrubbed the lesion with soap and water and wrapped the "oozing wound" in cellophane. Plaintiff had also developed a large bullae on the arch of his foot, which was "open and sore." Dr. Yorath also observed "significant erythema and edema on the dorsum of the left foot." Plaintiff was advised to begin taking Keflex immediately and keep his dressing dry and clean.

¶ 30 On March 6, 2003, plaintiff returned to the Scholl Foot Clinic for another follow-up visit with Dr. Yorath. Plaintiff had disregarded the previous March 4 instruction to not change the dressing on the wound. Plaintiff testified he could not deny the accuracy of the instruction not to change the dressing, but stated, "that's not relevant." Plaintiff denied he had a conversation with Dr. Yorath during which the doctor extensively counseled him regarding the need for aggressive control of the infection to prevent a poor outcome from the surgery.

¶ 31 The medical records from the March 6 appointment indicate plaintiff admitted to changing his dressing daily. Plaintiff denied he was having pain in his foot. Dr. Yorath counseled plaintiff for half an hour regarding the need for aggressive control of the infection "to prevent poor outcome from surgery, including potential for bone infection, loss of great toe/limb if he refuses treatment." Plaintiff again was instructed not to change his dressing and to take the antibiotics for his infection.

¶ 32 Plaintiff testified that, on March 11, 2003, he had chills and thought he might be contracting the flu. Medical records of the same date show plaintiff had an appointment with Dr. Yorath. During this appointment, plaintiff promised to take the antibiotics. The medical records of March 13, 2003 reflect plaintiff was taking the antibiotics as prescribed.

¶ 33 On March 18, 2003, plaintiff went to the Scholl Foot Clinic for a follow-up appointment with Dr. Yorath. The medical records of that date reflect plaintiff decided not to take the antibiotics. Dr. Yorath removed the dressing and documented that significant edema was still present and that erythema surrounded the surgical incision. Dr. Yorath noted additional blisters at the surgical site, which were draining fluid. Plaintiff again was instructed to leave the dressing alone and counseled again at length regarding the need to fight the infection and take the antibiotics as prescribed.

¶ 34 Plaintiff testified that he had a follow-up appointment on March 26, 2003. According to plaintiff, the incision site was draining "a very watery exudate" on that day. The medical records of that date indicate erythema was present to the mid-foot and edema was present to the mid-calf. Serious drainage was noted at and purulence was expressed from the incision site. Dr. Yorath made a small incision at the surgical site to remove pus and irrigated the wound. He dressed the wound with sterile gauze. Plaintiff again was advised to take the antibiotics, but he refused.

¶ 35 The medical records dated April 1, 2003 document that plaintiff told Dr. Yorath the pain has been virtually obsolete since his previous appointment. Plaintiff also told Dr. Yorath he completed taking a prescription of Keflex. Plaintiff described a "clear amber drainage" from the wound site when he changed his dressings. The records noted the gauze dressing was intact with "minimal serious drainage." Dr. Yorath took a number of X-rays from plaintiff that day.

¶ 36 Plaintiff testified that Dr. Yorath advised him to limit his physical activity and wear a walking brace until April 15, 2003. Plaintiff attempted to run 12 miles sometime in April 2003. Medical records dated April 29, 2003 confirm that plaintiff complained of pain from running and that "he has tried foot massages with his electric tooth brush to help with the pain and swelling." Plaintiff testified that he used an electric toothbrush to stimulate circulation "every day or once a week."

¶ 37 On May 1, 2003, plaintiff returned to the Scholl Foot Clinic for an appointment with Dr. Yorath. Plaintiff again refused to take the prescribed antibiotics. Plaintiff again complained of an increase in pain while running. The medical records of the same date indicated that "edema persists."

¶ 38 Plaintiff testified that, by May 6, 2003, he was running six miles per day. He stated that sometime in May of 2003, his transverse arch collapsed. Plaintiff stated that he could not put any weight on the front of his foot "without a lot of pain -- and it just collapsed." According to plaintiff, "[t]he only way that could have happened is if he cut the abductor hallucis muscle." Plaintiff stated that he confronted Dr. Yorath about whether he cut the abductor hallucis muscle in May of 2003 and Dr. Yorath said that he did. Plaintiff told Dr. Yorath that he wanted surgical repair of the tendon and the collapsed arch. Dr. Yorath responded that the abductor hallus muscle has nothing to do with the transverse arch. Plaintiff accused Dr. Yorath of lying "because he was hiding what he had done to me, because he was clearly told he couldn't cut tendons and he cut those tendons."

¶ 39 Dr. Yorath's medical records of that date confirm that plaintiff was running up to six miles per day. The medical records do not include a discussion regarding the cutting of the abductor hallucis muscle, a collapsed transverse arch or a request for additional surgery. At his next follow-up appointment on May 20, 2003, plaintiff indicated he was still running six miles per day. The May 20 medical records stated that plaintiff's gait was steady and unassisted with no limp. The edema in the forefoot had decreased since the previous appointment. Dr. Yorath discussed the need for "modifying splinting of hallux with bunion splint." Plaintiff was advised to continue normal activity.

¶ 40 Plaintiff requested and received a copy of his medical records in June of 2003. Plaintiff denied that he had a follow-up appointment on June 12, 2003 and denied that he went to the Scholl Foot Clinic on that date. Medical records from June 12 indicate he was seen walking out of the Scholl Foot Clinic. The records document that plaintiff told Dr. Yorath he was feeling okay, but had suffered from a fever a few days ago. Plaintiff complained his leg was swollen and that "blood came out to surface of leg." Plaintiff refused to seek medical advice and treatment. Dr. Yorath reported plaintiff did not want to be seen "despite my suggestion that he should be." Dr. Yorath reiterated his concern regarding an infection and recommended that plaintiff go to Cook County Hospital. The records indicate plaintiff "flatly refuses" to take antibiotics or go to the hospital. Plaintiff was still running six miles per day.

¶ 41 On June 26, 2003, plaintiff returned to the Scholl Foot Clinic for a follow-up visit with Dr. Yorath. Plaintiff recalled telling Dr. Yorath he took issue with "never releasing the fused fibula sesmoid." He told Dr. Yorath that he wanted another surgical procedure to reverse the cutting of the tendon. He complained his arch collapsed. Plaintiff stated, "I just wanted him to correct the anatomy of my foot so it was properly functioning and to undo every single thing that he did in my foot except for obviously cutting the bone and screwing it back together again."

¶ 42 The June 26, 2003 medical records document that plaintiff was still running six miles per day. Plaintiff expressed concern regarding swelling in his foot and localized pain. Dr. Yorath noted in the records plaintiff "almost absolutely has osteomyelitis of 1st metatarsal." Dr. Yorath recommended antibiotics and treatment at Cook County Hospital, which plaintiff again refused.

The records indicate plaintiff saw no need for antibiotics or treatment at the hospital, and that he was doing "OK." Plaintiff requested that his foot pain be resolved and "is considering having lateral 1st MPT sesamoid removed" by surgery. Dr. Yorath noted that plaintiff brought a lot of Internet literature regarding possible surgical procedure options.

ΒΆ 43 On July 15, 2003, plaintiff saw Dr. Yorath for another follow-up appointment. During that visit, Dr. Yorath told plaintiff he had osteomyelitis in his left foot and first metatarsal, which was also reflected in the medical records of the same date. Plaintiff was taking the antibiotics as directed. Plaintiff told Dr. Yorath that he was running and that "his running times have improved." Dr. Yorath advised plaintiff to limit his physical activity. Plaintiff testified he continued running and saw no reason to follow ...


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