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Cimino v. Sublette

Court of Appeals of Illinois, First District, Fourth Division

April 30, 2015

SALVATORE CIMINO, as Special Administrator of the Estate of Concetta Cimino, Deceased, Plaintiff-Appellee,
GERARD SUBLETTE, M.D., Defendant-Appellant

Page 847

Appeal from the Circuit Court of Cook County, Illinois, County Department, Law Division. No. 09 L 11500. The Honorable Thomas L. Hogan, Judge Presiding.

FOR APPELLANT: Charles F. Redden, Sommer R. Luzynczyk, Scott L. Howie, PRETZEL & STOUFFER, CHARTERED, Chicago, IL.


PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.


Page 848


[¶1] This is a medical malpractice wrongful death case that was tried to a jury verdict. The jury ruled in favor of the plaintiff, Salvatore Cimino (hereinafter Salvatore), as special administrator of the estate of Concetta Cimino, deceased (hereinafter Concetta), finding that the defendant, Dr. Gerard Sublette (hereinafter Dr. Sublette), was negligent in the treatment of Concetta and that his negligence was the cause of her death. In its verdict form, however, the jury nevertheless entered " $0.00" as the amount of damages awarded. The plaintiff moved for a new trial on damages alone, and the trial judge granted his motion in part, allowing a new trial on all of the issues. The defendant now appeals, contending that the trial court abused its discretion when it ordered a new trial because the jury's verdict of no damages was consistent with a finding of liability. The defendant asks that we reinstate the jury's original verdict of liability with zero damages. For the reasons that follow, we affirm.


[¶3] At the outset, we note that we are baffled by the meager state of the record that is before us. In reviewing this case we have had the benefit only of these documents: (1) the transcript of the jury trial up through the reading of the jury instructions but not including the entry of the verdict in open court; (2) the parties' posttrial pleadings and transcripts of those posttrial proceedings[1]; and (3) a set of jury instructions and verdict forms.[2] What is more, although this is a complex medical malpractice wrongful death case,

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wherein the parties contest whether the jury found proximate cause between the physician's breach of the standard of care and the decedent's injuries or erred in awarding the appropriate damages, neither party has attempted to address, even minimally, what transpired at trial. Our courts have long held that a reviewing court is " not a repository into which an appellant may foist the burden of argument and research." (Internal quotation marks omitted.) Velocity Investments, LLC v. Alston, 397 Ill.App.3d 296, 297, 922 N.E.2d 538, 337 Ill.Dec. 415 (2010). Supreme Court Rule 341(h)(6) and (h)(7) requires a statement of the facts, with citation to the record, necessary for an understanding of the case and a clear statement of contentions with supporting citation of authorities and pages of the record relied on. Ill. S.Ct. R. 341(h)(6), (7) (eff. July 1, 2008). It is not the reviewing court's job to " sift through the record or complete legal research to find support for *** issue[s]." In re Marriage of Kiferbaum, 2014 IL App. (1st) 130736, ¶ 21, 386 Ill.Dec. 51, 19 N.E.3d 1204. That said these are the facts that we have been able to glean from the limited record that has been placed before us.

[¶4] A three-day trial took place between April 8, and April 11, 2013, at which the following evidence was adduced.

[¶5] A. Roseann Branken

[¶6] The plaintiff first called Roseann Branken (hereinafter Roseann), the daughter of the deceased, Concetta. She testified that in January 2009, her mother was 83 years old and retired, living alone in Franklin Park. Roseann averred that Concetta was " pretty active" for an 83-year-old woman and that she belonged to a church community center, went to church, played Bingo, and " liked to be festive" and to gather family at her home. Concetta did not drive by herself and needed family members to drive her around. Roseann, who lived only 15 minutes away from Concetta, visited Concetta every day and drove her to many of her daily activities.

[¶7] According to Roseann, prior to January 2009, Concetta was also " in pretty good health for a woman of her age." Concetta had some arthritis in her shoulders and back, and she took blood pressure medication and water pills. Seven years earlier she had had two artificial knee replacement surgeries. Other than these, however, Roseann averred that Concetta was in good health. Roseann was familiar with Concetta's physicians because she drove her mother to those visits. She stated that Concetta had been seeing only two doctors: (1) Dr. Charles Mattis (hereinafter Dr. Mattis), her general practitioner; and (2) Dr. Bajgrowicz, her cardiologist at Gottlieb Memorial Hospital, whom she saw only once or twice a year for routine cardiac checkups.

[¶8] Roseann next testified regarding the events leading up to Concetta's death. She stated that on Saturday, January 9, 2009, Concetta telephoned her to say that she had been vomiting and was not feeling well and to ask Roseann if she could come by. Roseann went to Concetta's house at about 7 p.m., a couple of hours after receiving that call. According to Roseann, Concetta looked tired, but was still able to walk. Concetta went to lie down and rest and Roseann made her some tea. In the next couple of hours, Concetta continued to get out of bed to go to the bathroom to vomit. Initially, neither of them was nervous or worried, and Concetta told Roseann that it must be the " flu bug" that was " going around." However, at about 2 a.m., after Concetta continued to throw up, she asked Roseann to take her to the emergency room.

[¶9] Concetta was transported by ambulance to Gottlieb Memorial Hospital.

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Roseann stayed with Concetta in the emergency room (hereinafter the ER) until the staff took her blood tests. At that point, at Concetta's insistence, Roseann returned home to rest. Roseann returned to the hospital at about 9 a.m., the next morning, telephoning her brother, the plaintiff, Salvatore Cimino (hereinafter Salvatore) on the way to tell him that their mother was in the ER.

[¶10] At this point, Concetta had been moved from the ER to a regular room. At about 10 or 11 a.m., Roseann spoke to Dr. Mattis, Concetta's general practitioner, who informed her that whatever " Concetta had could be serious and she could need surgery." Dr. Mattis told Roseann that the CT scan that was performed on Concetta was " not diagnostic" ( i.e., was inconclusive) and that the physicians would probably have to do a colonoscopy to see what was going on. He also told Roseann that " there may be blockage" so that Concetta may have to undergo surgery. After speaking with Dr. Mattis, Roseann went to see her mother. Concetta looked tired, but was her usual talkative self. Dr. Mattis had already spoken to her about what was going on, and she was aware about the possible colonoscopy. According to Roseann, Concetta was lucid, alert and capable of making competent medical decisions. Concetta received numerous family visitors that day in the hospital, and Roseann stayed with her until very late that night.

[¶11] After going home to sleep, Roseann returned to the hospital at about 8 a.m. on January 12, 2009. Once there, she was informed that Concetta was being taken in for a chemical stress test, which would be followed by a colonoscopy. A nurse presented Roseann with several consent forms (for a colonoscopy, polypectomy, biopsy and gastroscopy) and she signed them. Roseann stated that she never met or spoke with the defendant, Dr. Sublette, prior to or after he performed the colonoscopy. Instead, Roseann spoke only to the nurse who " vaguely" described the colonoscopy procedure for her. Roseann explained, however, that she was generally aware of what a colonoscopy entailed because she had undergone the procedure herself in the past. Roseann also averred that no one at the hospital warned her of the risk of diverticulitis or a risk of perforation if there was diverticulitis, during a colonoscopy. She stated that it was her impression that Concetta was undergoing a purely routine test.

[¶12] Roseann next testified that while Concetta underwent the colonoscopy, together with her niece, Lora Cimino, she waited in the hospital waiting room, right across from the procedure room. Roseann had been told that the procedure would last about 20 minutes to half an hour. However, about 10 minutes into the procedure a nurse came out of the room and informed her that there had been complications because Concetta had thrown up during the colonoscopy. The nurse explained that they immediately had to stop the colonoscopy and put a tube down Concetta's throat to help her breathe. The nurse also told Roseann that they were prepping Concetta for an emergency surgery.

[¶13] Soon thereafter, Roseann watched as Concetta was moved from the colonoscopy procedure room to the operating room. She testified that in those few minutes, Concetta's eyes were open, but that she could not speak because she was intubated. Immediately after that, Roseann telephoned her brother.

[¶14] Roseann stated that during the surgery, the operating physician, Dr. Raul Villasuso (hereinafter Dr. Villasuso), came out of the operating room to explain to her that he need to " resection Concetta's colon." He told Roseann that he " had a lot

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of poison to clean out and that he was going to give it his best shot" so that Concetta " would come out of it." After the surgery, Concetta was placed in the intensive care unit (ICU). She remained intubated and was unable to speak. She died in the hospital two days later, on Wednesday, January 14, 2009.

[¶15] Roseann next testified that Concetta's hospital bills and funeral expenses have been paid. She further testified that since Concetta's death the family has not been the same. She explained that Concetta was very good at gathering the family, but that, since her passing, the members have " each gone their own way" and " do not even celebrate major holidays together."

[¶16] On cross-examination, Roseann stated that she never heard Concetta complaining about abdominal pain while in the ER and that she would have complained if she had been experiencing pain.

[¶17] B. Salvatore Cimino

[¶18] Concetta's son, Salvatore Cimino (hereinafter Salvatore) next testified consistently with Roseann's testimony. He stated that for a woman her age, Concetta was in " pretty good health" and active with her friends, neighbors and family. He acknowledged that Dr. Mattis was initially his physician and that he referred his mother to him.

[¶19] Salvatore testified that at about 9 a.m. on Sunday morning, Roseann telephoned him to say that she had taken Concetta to the hospital for vomiting. According to Salvatore, there was no urgency in Roseann's voice. Salvatore stopped by the hospital at around 11 or 12 p.m. that day. He did not speak to any physicians but only went to see his mother. Salvatore testified that Concetta looked tired but was not complaining of any pain.

[¶20] Salvatore stated that he returned to the hospital on the afternoon of Monday, January 12, 2009, after receiving a telephone call from Roseann, informing him that something had gone wrong during the colonoscopy and that they were taking Concetta to surgery. Once at the hospital, Salvatore learned from Roseann that " Concetta's colon had burst." After the surgery, Concetta was placed in the ICU, where she remained in a coma. Salvatore testified that had the family known that there could be complications during the colonoscopy, they would never have taken the risk and subjected Concetta to the procedure.

[¶21] Salvatore acknowledged that Concetta did not provide any financial support to the family. Nevertheless, he explained that Concetta's death has impacted the family tremendously. He explained that Concetta was the family matriarch who kept everyone together and provided everyone with emotional support. Since her death, the family has not remained close and they do not see each other as often as they did in the past. Salvatore, however, acknowledged that family relations have changed not because of the manner in which Concetta died, but only as a result of her passing away.

[¶22] Salvatore also testified that all the hospital bills and funeral expenses have been paid.

[¶23] C. Lora Cimino

[¶24] Concetta's granddaughter, and Salvatore's daughter, Lora Cimino (hereinafter Lora), next testified consistent with the testimonies of Salvatore and Roseann that Concetta was a " very active woman."

[¶25] Lora stated that she last saw Concetta healthy on the morning of Saturday, January 10, 2009, when she went to her grandmother's house together with her father Salvatore to have breakfast. Lora averred that Concetta made breakfast for

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everyone and at that time she seemed well and did not appear to be in any pain.

[¶26] Lora testified that she next saw Concetta at the hospital on Sunday January 11, 2009. Concetta looked tired but was talking and getting up out of bed to walk around the room and talk to different family members who came to visit her that day. According to Lora, the atmosphere was lighthearted and there was no sense of urgency.

[¶27] Lora stated that she next saw Concetta when the nurse wheeled her out of the colonoscopy procedure room to take her to emergency surgery. According to Lora, Concetta was awake but could not speak because she had a tube down her throat for breathing. The nurse explained to Lora that they had put the tube down Concetta's throat because she had vomited during the colonoscopy and some of that vomit had gone into her throat, so she needed the tube to breath.

[¶28] Lora also testified that she was in the ICU room together with Roseann a couple of days later when Concetta died. She stated that since then the family has not been the same and that they do not get together as often as they did in the past.

[¶29] D. Dr. Sublette

[¶30] The plaintiff next called, defendant, Dr. Sublette, as an adverse witness pursuant to section 2-1102 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1102 (West 2012)). Dr. Sublette first testified that he is a board-certified physician in internal medicine and gastroenterology ( i.e., the study of the diseases of the digestive system and liver). Dr. Sublette stated that in 1978 he completed his undergraduate studies at Michigan State University and that he obtained his medical degree in 1981 from the University of Illinois Medical School in Chicago. Between 1978 and 1981, Dr. Sublette completed his residency in internal medicine at Lutheran General Hospital. Subsequently, he pursued a fellowship in gastroenterology at Hines Veterans' Hospital in Chicago. In 1984, he joined the staff of Gottlieb Memorial Hospital and remains on that staff today. Dr. Sublette stated that he is currently also part of the staff at Elmhurst Hospital, Westlake Hospital and Good Samaritan Hospital, as well as a member of a private practice called Associates in Digestive Disease in Elmhurst.

[¶31] Dr. Sublette next testified that as part of his practice he sees about 100 patients a month and regularly performs colonoscopies. He explained that a colonoscopy includes using a scope with a light to visualize the area of the lumen in the colon. According to Dr. Sublette, the tube is inserted through the rectum and guided up through the colon, both by moving the tube and the colon itself. Dr. Sublette acknowledged that in order to perform a colonoscopy it is preferable that the colon be emptied prior to the procedure.

[¶32] Dr. Sublette next averred that on January 10, 2009, Dr. Mattis requested that he consult as a gastroenterologist in Concetta's case at Gottlieb Memorial Hospital. Dr. Sublette stated that he has no independent recollection of that consultation but that for purposes of his testimony he reviewed all the documents on record in Concetta's case. Dr. Sublette averred that it is general practice to review a patient's medical chart before doing the consult but that he could not recall whether he actually did so in this case. He stated, however, that he would have been familiar with all the information in Concetta's chart either by reviewing the chart itself or by speaking with other physicians prior to the consult.

[¶33] Dr. Sublette first acknowledged that Concetta's chart included an X-ray report written by the radiologist, Dr. Peter

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Zuehlke (hereinafter Dr. Zuehlke), analyzing Concetta's X-rays taken in the ER on January 11, 2009. Under the rubric " indication" that X-ray report stated that Concetta had " abdominal pain, rule out obstruction, nausea and vomiting." In the conclusion section, the document also stated that there was a large amount of stool in Concetta's distended colon but not so much in the rectum. The report further stated that as a result of the stool it was impossible " to exclude a partial lower gastrointestinal obstruction versus constipation/fecal impaction." Dr. Sublette acknowledged that the document nowhere mentioned " a mass" or " tumor" or " lesion."

[¶34] Dr. Sublette next testified regarding Concetta's CT scan that was ordered by the ER, and was also part of Concetta's medical report. Dr. Sublette acknowledged that the CT scan report stated that there were numerous diverticula noted in the colon and that " an underlying partially obstructed colon mass or early changes of acute diverticulitis" could not be excluded. Dr. Sublette admitted that the colon mass could have been just fecal material, but insisted that it also could have been something else.

[¶35] With respect to the numerous diverticula noted in the colon, Dr. Sublette explained that a diverticulum (plural diverticula) is an outpunching on the colon--a weakness in the wall that " looks like a balloon on the side of a tire," which is common in older people. He acknowledged that a patient that has more than one diverticula has a condition known as diverticulosis. Dr. Sublette admitted that in theory having diverticulosis presents a danger for the patient because the diverticulum could become infected with bacteria ( i.e., the patient could develop a condition known as diverticulitis). He, stated, however, that usually a person can live with diverticulosis without any problems and without requiring any treatment or additional examinations. According to Dr. Sublette, if you have diverticulosis, there is about a 10 % chance over your lifetime that you would get diverticulitis (an infection) or bleeding from the diverticulum.

[¶36] Dr. Sublette further testified that the CT scan report also revealed that Concetta had: (1) dilated bile ducts, which could have been caused by a duct stone; and (2) coronary artery calcification, which would indicate coronary artery problems. He admitted that patients with coronary artery disease may have a greater risk of cardiac problems occurring during a colonoscopy.

[¶37] Dr. Sublette next testified regarding Dr. Mattis's notes, which were also part of Concetta's medical chart and which, Dr. Sublette averred, he would have reviewed prior to his consult. In that report, Dr. Mattis wrote that Dr. Zuehlke, the radiologist, noted that although Concetta had a ventral hernia, there was concern " about the possibility of there being colon pathology which might include the possibilities of diverticulitis or even tumor." Dr. Mattis wrote in his notes that " in light of the patient's elevated white blood cell count, [he would] begin [treatment with] broad spectrum antibiotics," to reduce the diverticulitis or infection. Dr. Sublette agreed that Dr. Mattis' decision to treat " for inflammation" was a sound course of treatment, but explained that Dr. Mattis was treating " rather nonspecifically" for inflammation because of the elevated blood cell count.

[¶38] Dr. Sublette further testified that Dr. Mattis's final differential diagnosis (one where the doctor lists all the possible diagnoses) included: (1) abdominal pain and coffee ground emesis (which is the description of brown vomit that looks like coffee grounds, revealing that the patient is vomiting blood); (2) a possible partial

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bowel obstruction; (3) possible diverticulitis; and (4) a possible mass or lesion.

[¶39] Dr. Sublette was asked whether within a reasonable degree of medical certainty it was his opinion that the most likely diagnosis with a patient with Concetta's medical record (namely, the numerous diverticula in her colon and the elevated white blood cell count), was that the patient was suffering from diverticulitis. Dr. Sublette answered in the negative, stating that in this particular case the information that the doctors had was confusing and that in his opinion she could have had one of four things: (1) cancer; (2) diverticulitis; (3) a common duct stone; or (4) an incarcerated small bowel from a hernia. Accordingly, he stated that there was only a 25% chance that she was suffering from diverticulitis.

[¶40] Dr. Sublette next testified regarding the results of the gastrografin (the lower gastrointestinal examination) performed on Concetta prior to the colonoscopy and also part of her medical chart. Again, as with the previous documents, the doctor could not recall whether he actually read the written report or if he obtained the information by speaking to one of his colleagues. Dr. Sublette next acknowledged that the results of that examination reveled that there was a partial lower gastrointestinal obstruction in two locations. According to the report, the first of those obstructions was a significant narrowing of a middle section of the colon that was " circumferential" and " could represent a carcinoma," although a tumor or mass was undetected. The second was a long segment of narrowing in the sigmoid colon (closest to the rectum) with evidence of " diverticulosis and muscular hyperotrophy, with no signs of perforation, fistula tract or filling of an abscess cavity."

[¶41] Dr. Sublette next testified to the contents of his own notes completed after his consult with Concetta. He acknowledged that he noted that Concetta was an 83-year-old female with abdominal pain which was diffuse ( i.e., not centered in one area but, rather, all over her abdomen), with a high white blood cell count, on antibiotics, and under laboratory and diagnostic findings. He further noted that the patient may have had an incarcerated umbilical hernia in the lower area (which would mean that the bowel was trapped) or a hernia itself. Dr. Sublette's notes further stated that it is likely that the perforation in the colon " is probabl[y] from diverticular disease." Dr. Sublette ...

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