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Buck v. Charletta

Court of Appeals of Illinois, First District, Fourth Division

June 27, 2013

DAVID BUCK, Individually and as Independent Administrator of the Estate of Pauline Buck, Deceased, Plaintiff-Appellant,
DALE A. CHARLETTA, M.D., and DAC IMAGINGS, S.C., Defendants-Appellees.

Appeal from the Circuit Court of Cook County, Illinois, County Department, Law Division. No. 08 L 11382, Honorable Drella Savage, Judge Presiding.

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Epstein concurred in the judgment, and opinion.



¶ 1 This is an appeal from the circuit court's order granting summary judgment in favor of the defendants, Dr. Dale A. Charletta (hereinafter Dr. Charletta) and DAC Imagings, S.C. (hereinafter DAC), in a survival act and wrongful death action brought on behalf of Pauline Buck (hereinafter Pauline) individually, and on behalf of her estate, by the plaintiff, her husband, David Buck (hereinafter David). The plaintiff asserts that the circuit court incorrectly ruled that there were no genuine issues of material fact as to whether Dr. Charletta and DAC proximately caused Pauline's death. For the reasons that follow, we reverse and remand.


¶ 3 The record below is voluminous. For purposes of brevity we set forth only the pertinent facts and procedural history. The parties agree that on October 4, 2006, then 49-year-old Pauline consulted an orthopedic surgeon, Dr. Daniel Troy (hereinafter Dr. Troy) at Midwest Orthopaedics (hereinafter Midwest), complaining of neck pain. Dr. Troy ordered an X-ray[1] and a magnetic resonance imaging scan (hereinafter MRI) of Pauline's cervical spine. Pauline herself was a trained oncological nurse. After the X-ray and MRI were performed at Midwest, they were sent to radiologist, Dr. Charletta at DAC for interpretation. DAC was the exclusive provider of interpretive radiology services to Dr. Troy and Midwest. Dr. Charletta prepared and approved a final MRI report (hereinafter the report), which detailed an abnormal finding in Pauline's right lung, including a possible malignant lung tumor. The report recommended that follow-up chest radiographs be taken and that a correlation with the original X-ray be performed. The medical records indicate that no such follow-ups were done and Pauline's tumor went undiagnosed. Approximately one year later, Pauline was seen by a doctor for an evaluation of neck pain. He ordered a radiological study, which also disclosed the incidental finding of a tumor in her lung. This radiologist communicated the clinically significant information back to the ordering physician within a matter of hours and the patient immediately began a course of treatment for lung cancer, which was unfortunately unsuccessful.

¶ 4 On October 14, 2008, the plaintiff filed a complaint alleging medical malpractice against Dr. Troy, Midwest, Dr. Charletta and DAC. The complaint specifically alleged that Dr. Charletta was negligent in the manner in which he reported his interpretation of Pauline's MRI to Dr. Troy.[2] According to the complaint, Dr. Charletta was required to make a "non-routine, real-time communication" to Dr. Troy to alert him to the clinical significance of the abnormal findings in his report. The complaint also alleged that Dr. Troy failed to inform Pauline of those abnormal findings, and that as a result Pauline's tumor went undiagnosed and untreated.[3]

¶ 5 On May 26, 2009, Pauline died from lung cancer. Pauline's husband David then petitioned the court to be appointed as the special representative of Pauline's estate and to be permitted to substitute himself as the party plaintiff instead of Pauline. On June 18, 2009, pursuant to section 2-1008(b)(1) of the Code of Civil Procedure (735 ILCS 5/2-1008(b)(1) (West 2008)), the circuit court granted David's petition. On August 10, 2009, David amended his complaint to include an additional wrongful death count against Dr. Charletta and DAC.

¶ 6 A. Deposition Testimony

¶ 7 The parties proceeded with discovery, and numerous witnesses were deposed, including, relevant to this appeal: (1) Dr. Charletta; (2) Dr. Troy; (3) Michael E. Schrader; (4) Danielle Hesse; (5) Pauline; (6) Mark F. Bordick; and (7) Dr. David Markovitz.

¶ 8 1. Dr. Charletta

¶ 9 Dr. Charletta testified in his deposition that he is a radiologist and the owner of DAC. He contracts with other healthcare providers, such as Midwest, to read and interpret MRIs. According to Dr. Charletta, in October 2006, Midwest was using a computer system to transfer images to him for review and interpretation. Patients would undergo MRI imaging studies at Midwest's facility and the staff at Midwest would upload the images onto a server, owned by Dr. Charletta, but physically located in Midwest's office. Dr. Charletta would remotely log onto the server over the Internet, view the images, interpret them, and dictate a report. He would then have the report transcribed and uploaded into the server. After proofreading and finalizing the report, Dr. Charletta would electronically make the report available to the staff at Midwest. The report and images would then remain available on the server at Midwest.

¶ 10 Dr. Charletta testified that on October 6, 2006, Midwest uploaded an MRI scan with images of Pauline's cervical spine onto his server and requested that Dr. Charletta interpret them. To assist in his interpretation of the MRI images, Dr. Charletta viewed online, using a separate web server owned and operated by Midwest, an image from the October 4, 2006, AP cervical X-ray of Pauline's spine taken at Midwest. Using this image of the AP cervical spine, [4] Dr. Charletta observed a poorly defined density in Pauline's right upper lung. On October 9, 2006, he prepared his final report and uploaded it in electronic form onto his server located at Midwest. The first paragraph of that report, titled "OBSERVATIONS, " states in relevant part:

"The AP cervical spine film demonstrates a poorly defined density in the apical segment of the right upper lung lobe. This finding is nonspecific but raises the possibility of a lung mass. Follow-up dedicated two view chest radiographs are recommended as the first step in further evaluation. The mass cannot be measured since this feature is not supported by the Stryker web server software. Correlation with original cervical spine radiographs is recommended as well."

The second page of Dr. Charletta's report contains a section titled "IMPRESSIONS" and further notes:

"It is noted at [sic] the AP cervical spine digitized radiograph demonstrates a poorly defined density in the upper lung lobe. Correlation with original radiograph is recommended. This may represent a lung infiltrate, fibrosis or even a lung tumor, even malignant. I would recommend follow up two view chest radiographs as a first-step in further evaluation."

The report identifies Dr. Troy as the referring physician.

¶ 11 In his deposition, Dr. Charletta admitted that he had no personal communication with Dr. Troy regarding Pauline's MRI. Dr. Charletta never faxed his report to Dr. Troy, nor did he call Dr. Troy to inform him of his findings.

¶ 12 2. Dr. Troy

¶ 13 In his deposition, Dr. Troy testified that he is an orthopedic surgeon and that he first treated Pauline in August 2004. Specifically, on August 13, 2004, he performed a discectomy[5] on Pauline. Dr. Troy did not have occasion to see Pauline again until October 2006. Specifically, on October 2, 2006, Pauline contacted Dr. Troy's office complaining of a new injury to her spine. During her appointment at Midwest, on October 4, 2006, Pauline was first seen by Dr. Troy's physician's assistant, Mark F. Bordick, who ordered an X-ray of her spine. After examining that X-ray, Dr. Troy noted joint damage in Pauline's spine and ordered an MRI to "show the history of a prior fusion" and "to evaluate for any type of recurrent cervical stenosis above or below the fusion level." Dr. Troy admitted that, at that time, he did not note any abnormality in Pauline's lung and stated that he did not order the MRI for the purpose of any diagnosis with respect to her lung. After the MRI was performed, Dr. Troy sent it to Dr. Charletta for interpretation.

¶ 14 Dr. Troy testified that he ordinarily received Dr. Charletta's reports from the medical assistants at Midwest. He acknowledged, however, that on occasion, Dr. Charletta would personally telephone him to discuss MRIs. According to Dr. Troy, however, Dr. Charletta did so only when there were unexpected findings with potentially serious consequences for the patient. He explained that a telephone call would be occasioned only by "something where there's no argument over whether it could or could not be definitive." Dr. Troy estimated that Dr. Charletta had such occasion to telephone him no more than 5 to 10 times. He could recall only two specific circumstances: (1) when there was " a tumor in the middle of the spinal cord that was unequivocal"; and (2) when there was a "soft tissue tumor of a thigh that was unequivocal."

¶ 15 Dr. Troy testified that he first saw and reviewed Dr. Charletta's report concerning Pauline's MRI on October 11, 2006. Dr. Troy averred that he considered Dr. Charletta's reference to a lung mass in Pauline's chest clinically significant. As a result, when he met with Pauline on October 11, 2006, he spoke to her about the potential problem with her lung and then read Dr. Charletta's full report to her. Dr. Troy testified:

"I informed Pauline that the MRI report, as I read the overall impression number 3, that it could represent a lung infiltrate, fibrosis or even a lung tumor. She, at that point in time, informed me that she had a long history of bronchitis and there was nothing to worry about that she was going to follow-up with her primary care doctor on this." Dr. Troy admitted that he did not give Pauline a copy of Dr. Charletta's report but stated that it was his understanding that his medical assistant, Danielle Hesse, gave Pauline a copy. He did not, however, personally see Hesse hand a copy to Pauline.

¶ 16 Dr. Troy admitted that he never personally communicated the findings in Dr. Charletta's report to Pauline's primary physician and that he never faxed the report to him. He also admitted that there is no mention in Pauline's chart or medical records from Midwest that he read the report to her, even though with "99.9% of [his] other patients [he] would have made a record in their chart that [he] had read to them the MRI findings, impressions and the observations." Dr. Troy also admitted that although Midwest had its own diagnostic imaging center, and therefore the ability to order follow-up chest X-rays for Pauline on October 11, 2006, he never did so.

¶ 17 Dr. Troy explained, however, that he treated Pauline differently from his other patients because she was an oncology nurse. As the transcript of Dr. Troy's deposition reveals: "A. In hindsight I wish I--I wish I didn't treat her as an oncology nurse. I wish I treated her as a patient. And if I did that and if I did what I usually do for 99.9% of my patients, she may have gotten treatment sooner.

Q. I missed the last–
A. She may have had treatment sooner instead of ...

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