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Fakes v. Eloy

Court of Appeals of Illinois, Fourth District

March 12, 2014

MARY FAKES, as Special Administratrix for the Estate of Laura Alice Powell, Deceased, Plaintiff-Appellant,

Page 94

As Corrected.

Appeal from Circuit Court of Macon County. No. 06L183. Honorable Thomas E. Little, Judge Presiding.

Reversed and remanded with directions.


In a medical malpractice action alleging that the treatment defendant provided to plaintiff's decedent for bleeding esophageal varices did not comport with the medical standard of care, the verdict for defendant was reversed and the cause was remanded for a new trial, since the record showed that the critical issue in the case was the cause of decedent's death and defendant violated Supreme Court Rule 213 by stating in his deposition that decedent's death was caused by bleeding esophageal varices but, at trial, he testified that he was not sure what caused her death, that " some other" nonspecific factors contributed to her death and that bleeding esophageal varices were not the cause of her death, and defendant's failure to supplement or amend his deposition testimony constituted a violation of Rule 213 warranting reversal.

Lisa Corwin (argued), of Wylder Corwin Kelly LLP, of Bloomington, for appellant.

Charles C. Hughes (argued) and Katie W. Baggett, both of Hughes & Tenney, L.L.C., of Decatur, for appellees.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Pope and Holder White concurred in the judgment and opinion.



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[¶1] In November 2006, plaintiff, Mary Fakes, as special administratrix for the estate of Laura Alice Powell, deceased, filed a medical malpractice suit against defendants, Victor Eloy, M.D., and his principal, Internal Medicine Subspecialty Associates, Ltd. (hereinafter, defendants or Eloy). In March 2012, a jury returned a verdict in Eloy's favor.

[¶2] Fakes appeals, arguing that the trial court (1) erred by failing to impose sanctions against Eloy for violating Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) and (2) abused its discretion by admitting (a) evidence under the rule of completeness,

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(b) the testimony of two medical experts with whom defense counsel purportedly engaged in prohibited ex parte communications in violation of the doctrine announced in Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 499 N.E.2d 952, 102 Ill.Dec. 172 (1986) ( Petrillo doctrine), (c) hearsay evidence, and (d) evidence the court had barred. Fakes also argues that the court violated her right to a fair trial by refusing to strike four prospective jurors for cause. For the reasons that follow, we reverse and remand.


[¶4] A. Prologue

[¶5] On November 26, 2004, decedent, who was 63 years old, sought emergency medical care because she had earlier vomited a considerable amount of blood. The following morning, she died as a result of bleeding veins in her esophagus (a condition known as bleeding esophageal varices). Fakes sued, claiming that the care Eloy provided to decedent did not comport with the medical standard of care. The jury later returned a verdict in Eloy's favor.

[¶6] Because Fakes' claims concern multiple issues that occurred before and during the six-day trial in this case, and given the length of the record in this case, we limit our discussion to the facts necessary to place the parties' arguments in context.

[¶7] B. Voir Dire

[¶8] At the beginning of jury selection, the trial court identified by name potential witnesses who were expected to testify, including Eloy, decedent's gastroenterologist, and George Duncan, decedent's primary care physician. After providing the venire a brief description of the nature of the case, the court asked a series of typical voir dire questions to a panel of 14 veniremembers. The court then permitted the parties to pose questions to the panel and specific veniremembers. The court and parties would then adjourn to the judge's chambers to discuss the panel at issue. In this case, the aforementioned process was repeated with three panels--each comprised of 14 veniremembers--to empanel a 12-member jury.

[¶9] 1. The First Venire Panel

[¶10] During questioning of the first panel, Fakes' counsel asked for a show of hands to the question, " Who doesn't like lawsuits?"

[¶11] Veniremember A opined that we live in a litigious society, adding, " I think everybody is very quick to want to go to court." Counsel then asked whether veniremember A had a bias against lawsuits, and he responded, " if there is justification, I think it's okay. But sometimes I think that *** they're too quick to file and sometimes there's not any merit there." Veniremember B expressed her " strong" belief that " more and more everybody is just finding ways to go to court just to get money." Veniremember B did not believe she had a bias against litigation but was merely noting that it was increasing. Veniremembers A and B agreed that Fakes' suit " start[s] off a little bit behind" because of their respective opinions. Despite their beliefs, both stated that they would decide the case based on the evidence presented.

[¶12] Fakes later moved to strike veniremembers A and B for cause, noting their attitude toward lawsuits and their belief that Fakes' suit starts out behind. Eloy objected, noting the responses the veniremembers expressed regarding their specific roles as jurors as opposed to their general beliefs on litigation. The trial court denied Fakes' motions to strike for cause. Thereafter, Fakes used two of her five peremptory challenges to dismiss both veniremembers.

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[¶13] 2. The Second Venire Panel

[¶14] Veniremember C, a registered nurse, knew both Eloy and Duncan because she had cared for their hospital patients. She characterized both as " good doctors" and said her relationships with Eloy and Duncan would not affect her impartiality. Veniremember D, a molecular biologist, (1) baby-sat the children of Eloy's counsel " years ago" and (2) worked with Eloy on a medical-research project. Although veniremember D had formed an opinion of both men, she stated that she could set aside those personal opinions and decide the case on the facts presented.

[¶15] Fakes later moved to strike both veniremembers C and D, citing their respective relationships. Eloy objected, arguing that both veniremembers clearly stated they would be impartial jurors. The trial court denied Fakes' motions to strike for cause. Fakes responded by using a third peremptory challenge to dismiss veniremember C.

[¶16] 3. The Third Venire Panel

[¶17] After answering questions that the trial court posed to the entire panel, veniremember G.M. informed Fakes that she could award $500,000 if the law and evidence supported such a verdict. During Eloy's questioning, G.M. explained that she had recently retired from her job as a bookkeeper in Decatur Township's welfare division.

[¶18] 4. The Composition of the Jury

[¶19] During consideration of the third panel, the trial court informed the parties that eight veniremembers had been selected as jurors and four selections remained. When the trial court tendered to Fakes four possible jurors, one of whom was veniremember D, Fakes used her fourth peremptory challenge to dismiss her. Fakes then used her fifth--and final--peremptory challenge to dismiss veniremember D's replacement. Eloy then used a peremptory challenge to dismiss a veniremember that the court then replaced with G.M. Eloy accepted the four veniremembers tendered. Fakes' counsel responded, as follows:

" I want to make a record that I would have struck *** [G.M.] if I had another peremptory because I would have used one of my perempts [ sic ] on her. *** I understand I don't have one, but I want to make a record on that. I never did accept that panel."

[¶20] C. The Pertinent Trial Evidence Presented by the Parties

[¶21] 1. Fakes' Evidence

[¶22] Fakes called Eloy to testify as an adverse witness in her case in chief. Eloy, a board-certified physician in internal medicine and gastroenterology, testified that on November 22, 2004, five days before decedent died, he examined her by performing an upper endoscopy and a colonoscopy. An upper endoscopy is a procedure that enables a physician to view the esophagus, stomach, and portions of the small bowel using a thin, flexible scope inserted through the mouth. The colonoscopy allows examination of the colon by inserting a different type of scope through the anus.

[¶23] Eloy's preoperative diagnosis was that decedent suffered from " [c]irrhosis of the liver secondary to hepatitis C." Eloy explained that in the mid-1980s, decedent contracted hepatitis C from a blood transfusion. In his November 22, 2004, operative report, documenting the results of his separate endoscopy procedures, Eloy diagnosed decedent with a " [g]rade II [of IV] esophageal [varices]." Eloy confirmed that bleeding esophageal varices can cause death if the blood flow is not stopped by performing an endoscopic variceal banding procedure. Eloy acknowledged that some physicians perform the banding procedure

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even when the esophageal varices are not bleeding.

[¶24] On November 26, 2004, decedent called Duncan, complaining of vomiting " a large amount of blood." Duncan advised her to go to the Decatur Memorial Hospital emergency room (ER). When she arrived, ER personnel notified Eloy. At about 11:30 p.m., Eloy examined decedent. That examination revealed that decedent had bled from her gastrointestinal tract. Eloy opined that decedent's esophageal varices had bled earlier but had stopped bleeding by the time he examined her because decedent was not (1) vomiting blood, (2) passing blood clots through the rectum, or (3) experiencing " dark tarry stools," which were symptoms of such a condition. Eloy also noted that decedent's grade II esophageal varices were small, which would not create enough pressure to cause a rupture. Eloy did not perform an upper endoscopy on decedent, which he admitted would have confirmed whether bleeding was occurring.

[¶25] Because decedent was stable at that time, Eloy prescribed medication to slow decedent's blood flow, ordered decedent's transfer to the intensive care unit (ICU), and scheduled an " endoscopic evaluation *** with variceal banding" for 10:30 a.m. the following day. In his consultation report, Eloy diagnosed decedent, in part, with " [g]astrointestinal bleed suspect secondary to esophageal [varices]." Eloy then returned home.

[¶26] At approximately 1:30 a.m. on November 27, 2004, ER personnel called Eloy at his home and informed him that decedent had " developed some abdominal pain." Eloy prescribed the medication Demerol. At 5:08 a.m. that same day, ICU personnel called Eloy and informed him that decedent was allergic to Demerol and that her blood hemoglobin count had dropped from 10.4--when Eloy examined her in the ER--to 6.2, which the testing technician annotated was a " panic level" measurement. Upon learning of decedent's hemoglobin count, Eloy suspected that she had been bleeding since 2 a.m. Eloy prescribed morphine, ordered a blood transfusion, and realized that he would have to immediately perform the endoscopic variceal banding procedure. Five minutes later, Eloy called the ICU and ordered an X-ray of decedent's abdomen. Eloy suspected that some other medical issue was occurring because decedent was not exhibiting the aforementioned symptoms of bleeding esophageal varices. Eloy then showered, trimmed his beard, and dressed, which he estimated took half an hour.

[¶27] At 7:30 a.m. on November 27, 2004, decedent had a " massive [gastrointestinal] bleed." At 8:15 a.m., Duncan, who had responded to the ICU's emergency " code blue," informed decedent's family that her medical condition was grave. At 8:21 a.m., decedent died. At 11:40 a.m., Eloy entered a physician's progress note, confirming that he had dictated a final summary of decedent's condition. Eloy admitted that he arrived at the hospital sometime after decedent died. Eloy's final diagnosis of decedent's condition was a " massive upper gastrointestinal bleed presumed secondary to esophageal varices."

[¶28] During Fakes' examination of Eloy, the following exchange occurred:

" [FAKES' COUNSEL]: What is your opinion as to a reasonable degree of medical certainty as to the cause of [decedent's] death?
[ELOY]: I'm not exactly sure what caused her death. I believe that variceal bleed had something to do with it. But the clinical presentation, something happened to [decedent] around two o'clock in the morning that changed the clinical picture entirely. ***

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[FAKES' COUNSEL]: Page 41. Do you remember being asked this question and giving this answer at your [August 2008 discovery] deposition: 'Q[uestion]: So to a reasonable degree of medical certainty, you believe the esophageal varices bleed caused her death? A[nswer]: Yes.'
[ELOY]: If you read other parts of the deposition, I also mention that there was [ sic ] some other factors that contributed to her death. I wasn't specific. I did say that something else happened. ***
* * *
[FAKES' COUNSEL]: *** In order for an opinion to be--I don't know what [the] word would be--
[ELOY]: Accepted.
[FAKES' COUNSEL]: Accepted. It needs to be a reasonable degree of medical certainty. You're familiar with that concept, right?
[ELOY]: I am.
[FAKES' COUNSEL]: Not 100[%] certainty, but the reasonable degree of medical certainty with which you practice medicine; do you understand that concept?
[ELOY]: I do understand that concept.
[FAKES' COUNSEL]: And I had the opportunity at your deposition to ask you to a reasonable degree of medical certainty what did you think caused [decedent's] death. What was your answer?
[ELOY]: Esophageal varices.
[FAKES' COUNSEL]: It was the bleeding of those esophageal varices that caused her death, right?
[ELOY]: *** I think it contributed to her death, but not the cause of her death.
[FAKES' COUNSEL]: Doctor, do you remember being asked this question, 'So to a reasonable degree of medical certainty, you believe the esophageal varices bleed caused her death, correct? A[nswer]: Yes.'
[ELOY]: My answer was yes.
[FAKES' COUNSEL]: Is it still your answer today that it's your opinion to a reasonable degree of medical certainty the esophageal varices bleed cause [decedent's] death?
[ELOY]: It is correct that it caused her death, but there [were] other circumstances as I do mention later on in the deposition that you took that you are not reading that I say that there [were] other contributing factors. The reason I say that is because her clinical picture changed.
[FAKES' COUNSEL]: What is this mysterious other thing that you believed occurred?
[ELOY]: The differential diagnosis is quite extensive. You want me to go through them, I will be happ[y] to.
[FAKES' COUNSEL]: Just tell me what you told me at your deposition about this mysterious [thing]. You're saying that you told me at the deposition. What other cause of death did you mention at your deposition?
[ELOY]: I did not mention any other cause of death in the deposition."

The trial court then granted Eloy's request for a sidebar conference. Following that conference, Fakes resumed her examination of Eloy, as follows:

" [FAKES' COUNSEL]: Back to where we were ***, when you were asked at your deposition to a reasonable degree of medical certainty what caused [decedent's] death, you said it was your opinion it was esophageal varices that bled that caused [decedent's] death; is that true?

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[ELOY]: Yes.
[FAKES' COUNSEL]: You did not identify anything else at your deposition that you had an opinion to a reasonable degree of medical certainty or you had opinion otherwise caused her death, did you?
[ELOY]: It did not come up, no.
[FAKES' COUNSEL]: Is that a no then? You didn't offer that testimony?
[ELOY]: That's a no."

(The record shows that during a sidebar conference, the trial court overruled Fakes' objection that Eloy's testimony violated Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007). The court, however, later permitted Fakes to make a record of that objection outside of the jury's presence, which the court denied. We will review and consider the pertinent portions of that hearing during our analysis of Fakes' Rule 213 claim.)

[¶29] Thereafter, Fakes, referring to a medical article Eloy relied on in preparation for his August 2008 discovery deposition, asked whether Eloy agreed that a 20% chance of death exists even if an endoscopic variceal banding procedure is performed on a patient with bleeding esophageal varices. The following exchange occurred. (To provide clarity for the following quote, a " Child-Pugh" score predicts risk of surgical outcomes in patients with bleeding esophageal varices. Jeffrey D. Wayne et al., Preoperative Predictors of Survival After Resection of Small Hepatocellular Carcinomas, 235(5) Annals of Surgery, at 722-31 (May 2002)):

" [FAKES' COUNSEL]: Do you agree with the fact that 20[%] can die, but the statistics show 80[%] percent live?
[ELOY]: It's how you read and interpret the information. If you had a Child's A patient with cirrhosis of the liver, they have a 90[%] chance of survival. If you have a Child's C that's actively bleeding, they have a much higher mortality rate. As an average, yes, 20[%]. But that takes all of them. The real, real sick ones and the ones that don't have as bad of a bleed. So there's a big spectrum there.
[FAKES' COUNSEL]: We never discussed--you brought up the Child's score. That's something we never discussed at your deposition, is it?
* * *
[ELOY]: Well, I don't know if we made inference [ sic ]to the Child's classification or not. I don't recall.
[FAKES' COUNSEL]: So you don't have a recollection of that?
[ELOY]: No, but if we discussed the articles, I'm sure it's in there.
* * *
[FAKES' COUNSEL]: Okay. Here's my question: Have you ever offered any opinion about what [decedent's] Child's score was?
[ELOY]: Not to you, no."

[¶30] Eloy's counsel began his cross-examination by reading a portion of Eloy's deposition where he mentioned the Child-Pugh score. Fakes objected, noting that unless Eloy's counsel was attempting to impeach Eloy or refresh his recollection, he could not read from Eloy's deposition. Eloy's counsel withdrew his question and attempted to refresh Eloy's recollection regarding whether he mentioned the Child-Pugh score. Referring to his deposition, Eloy confirmed that he mentioned that metric during his testimony.

[¶31] The following exchange then occurred:

" [FAKES' COUNSEL]: Judge, [based on] the rule of completeness, I would like [Eloy's counsel] to read the

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question and answer because there is no testimony about what [decedent's] Child score is.
[ELOY'S COUNSEL]: I don't disagree with that, I'd be happy to ...

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