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Aguilar-Santos v. Briner

Court of Appeals of Illinois, First District, Fourth Division

January 26, 2017

MAI LEEN AGUILAR-SANTOS, Plaintiff-Appellee,
v.
HELEN BRINER, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 L 3952, Honorable Diane Shelley, Judge Presiding.

          BURKE JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Ellis and Justice Howse concurred in the judgment and opinion.

          OPINION

          BURKE JUSTICE.

         ¶ 1 I. BACKGROUND

         ¶ 2 This case arises from an automobile accident that occurred on July 28, 2008, between Mai Leen Aguilar-Santos, plaintiff, and Helen Briner, defendant. On April 1, 2010, plaintiff filed a complaint in the circuit court of Cook County, seeking to recover damages as a result of defendant's negligence in causing the accident. Plaintiff alleged that she suffered injuries to her lower back and neck from the impact and burns to her arm from the deployment of the airbag. Defendant filed an answer, denying any negligence and asserting the affirmative defense of plaintiff's own negligence.

         ¶ 3 On July 15, 2013, the trial court granted plaintiff's motion for partial summary judgment, finding that defendant breached the duty of ordinary care. Defendant filed an amended answer, admitting that her negligence was the proximate cause of plaintiff's injuries. Defendant denied, however, that plaintiff was injured to the extent that she claimed or that the injuries she sustained as a result of the accident were permanent. Prior to trial, defendant conducted evidence depositions of two of plaintiff's treating physicians, Dr. Richard Lim and Dr. Michel Malek.

         ¶ 4 A. Rule 213(f) Disclosures

         ¶ 5 Plaintiff filed her initial Supreme Court Rule 213(f) interrogatory answers on February 25, 2011 (Ill. S.Ct. 213(f) (eff. Jan.1, 2007)). In those answers, plaintiff identified Dr. Lim as one of plaintiff's treating physicians who may be called to testify at trial. The answers further provided that Dr. Lim would testify "that said injuries and symptoms identified in the medical records are caused by the accident" and that "[p]laintiff's condition may deteriorate with age or treatment." The answers further disclosed that Dr. Lim would "rely upon the radiographic studies contained in the medical records." Finally, plaintiff disclosed that she would "be seeing [Dr. Lim] again before trial either for treatment or to update the doctor's opinion."

         ¶ 6 On August 7, 2012, plaintiff filed supplemental answers to the initial interrogatory answers filed on February 25, 2011. In the supplemental answers, plaintiff disclosed that she recently returned to Dr. Lim's office. Based upon this recent examination, plaintiff expected Dr. Lim to testify that she required future and further medical treatment to treat her pain and problems related to the automobile collision. Plaintiff further disclosed that Dr. Lim "is expected to rely on any and all other medical records of the plaintiff from other doctors and hospitals." Under Dr. Lim's name on the disclosures is a notation to "See attached records." Attached to the supplemental answers, plaintiff included a medical record from April 2, 2012. The record provides that plaintiff "continues to be symptomatic with respect to the cervical spine" and that plaintiff's "MR scan was reviewed from November 2011 and shows herniated disc at C5-6. The patient was examined with Dr. Lim and he reviewed these studies." Plaintiff also included a copy of the Magnetic Resonance Imaging (MRI) from November 2011.

         ¶ 7 B. Motions in Limine

         ¶ 8 1. Defendant's Motion in Limine 15

         ¶ 9 Prior to the beginning of the jury trial, defendant filed a number of motions in limine. In motion in limine 15, defendant requested that the trial court "preclude evidence of permanency, future pain and suffering, and future loss of normal life." In this motion, defendant contended that in his evidence deposition, Dr. Lim did not offer any opinions regarding the permanency of plaintiff's condition. Defendant further contended that the court should sustain her objection to Dr. Malek's testimony at his evidence deposition that plaintiff sustained a permanent injury. In support of this contention, defendant asserted that Dr. Malek last saw plaintiff on March 5, 2014, 15 months prior to his evidence deposition, which meant that it was not a recent examination under Illinois law for establishing the permanency of plaintiff's condition. Defendant further asserted that Dr. Malek saw plaintiff only six times during a two-year period, and, therefore, lacks the proper foundation to support a claim for permanency. In denying defendant's motion in limine 15, the trial court stated that the recency of the exam was only one factor the court could consider in determining whether to permit admission of the evidence. The court further recognized that at this point in the trial, the only issue was the admissibility of the evidence regarding permanency, and not the weight that the jury may give to that evidence.

         ¶ 10 2. Defendant's Motion in Limine 16

         ¶ 11 In motion in limine 16, defendant contended that the trial court should "bar any claim for future medical expenses." Defendant asserted that neither Dr. Lim nor Dr. Malek testified as to the cost of any future medical treatment in their evidence depositions and that plaintiff identified no other witness who could testify as to the cost of treatment that plaintiff may incur in the future. At a hearing on defendant's motion, defendant asserted that there was insufficient evidence regarding the manner of plaintiff's future treatment to support a claim to recover future expenses for her prescription medication. The court noted that the interrogatory answers dated August 7, 2012, indicated that Dr. Malek would testify that plaintiff would probably need future medical treatment and will incur bills associated with that treatment and that the doctor would discuss the cost of future treatment. The court then denied defendant's motion in limine 16, but stated that it would "revisit it before closing arguments when all of the evidence will have been presented."

         ¶ 12 C. Trial

         ¶ 13 1. Plaintiff's Case-in-Chief

         ¶ 14 At trial, plaintiff testified that, after the automobile accident, she was taken to the hospital where she was told to take pain medication and follow up with her primary care physician. Plaintiff visited Dr. Satinder Dalawari a week after the accident on August 4, 2008. Dr. Dalawari noted that plaintiff had had neck pain, low back pain, and some burns on her forearm. Plaintiff testified that she had never experienced back or neck pain before the automobile collision. Dr. Dalawari prescribed plaintiff an antibiotic and also ordered a computerized tomography (CT) scan of her cervical spine and lumbar spine. The CT scans showed "mild degenerative dis[c] disease or dis[c] changes" at the C5-C6 level, but there was no evidence of any fracture or dislocation. Dr. Dalawari recommended that plaintiff see an orthopedic doctor.

         ¶ 15 Plaintiff visited Dr. Lim, an orthopedic surgeon, on August 13, 2008. Dr. Lim noted that plaintiff had neck pain and low back pain and diagnosed her with cervical strain and lumbar strain. Dr. Lim recommended non-operative treatment including physical therapy. Dr. Lim met with plaintiff again on September 26, 2008. Plaintiff reported that her pain had improved, but had not dissipated. Dr. Lim noted that she was "hyperreflexive, " which could indicate that something was "going on" with her nervous system. He recommended that she get an MRI. Upon review of her MRI, Dr. Lim observed impingement at the C5-C6 disc level of her cervical spine.

         ¶ 16 On October 30, 2008, plaintiff visited Dr. Nulman for an epidural steroid injection to her cervical spine. Dr. Lim testified that after the injection, plaintiff was making improvement, but that her improvement was "rather slow." Plaintiff testified that the procedure of receiving the epidural injection was very painful. Dr. Lim saw plaintiff again on December 12, 2008, and he noted that she had improved and that the epidural "helped her out significantly." Dr. Lim recommended that she finish her physical therapy and follow up with him on an as-needed basis. Plaintiff completed physical therapy on January 7, 2009. Plaintiff testified that at this point in her treatment she felt relief, but was not "100 percent" and that the pain was still present. At the recommendation of her physical therapist, she continued to do physical therapy exercises at home to manage her pain.

         ¶ 17 Plaintiff returned to Dr. Lim's office on February 20, 2009, and reported that she was doing well until recently, when her symptoms returned. She reported that the pain in her neck was "intolerable" and that she would occasionally experience shooting pain down her right arm. Dr. Lim recommended that she have a new MRI taken. Plaintiff received a second epidural injection in her cervical spine on March 10, 2009. She told Dr. Lim on March 25, 2009, that after this second injection, she was "about 80 percent better, " but was still taking medication to manage her pain. Plaintiff testified that the relief from her second epidural injection lasted about four to five months. Plaintiff did not see any doctors from April 13, 2009, until August 28, 2009.

         ¶ 18 Plaintiff returned to see Dr. Lim on August 28, 2009, and reported that her pain had returned. She reported that it was identical to the pain she had been experiencing before in her neck and going down her shoulder and arm. Dr. Lim testified that the fact that plaintiff's pain returned meant that there was still a problem causing her symptoms and that the epidural injections were providing her only temporary relief by helping relieve her pain symptoms. On September 23, 2009, plaintiff returned to Dr. Lim's office because she had experienced several episodes of pain shooting down her right leg into her foot. Dr. Lim recommended that that plaintiff get a new MRI.

         ¶ 19 On September 24, 2009, plaintiff received another epidural injection to her cervical spine, and on September 28, plaintiff had an MRI taken of her lumbar spine. Plaintiff visited Dr. Lim again on October 9, 2009, and reported no improvement in her condition and that the most recent epidural injection had provided her "no relief whatsoever." Dr. Lim discussed plaintiff's surgery options with her and told her that the surgery had an 80% success rate. Plaintiff next met with Dr. Lim on January 8, 2010, and reported that her symptoms were progressive and that she was having more weakness and more problems. Dr. Lim ordered a new MRI for plaintiff and again discussed surgical options with her.

         ¶ 20 Plaintiff had an MRI on February 1, 2010, and met with Dr. Robinson, a pain management doctor on February 22, 2010. On March 9, 2010, Dr. Robinson recommended that plaintiff get more injections to her cervical spine and go through another course of physical therapy. Plaintiff completed the physical therapy in March and April of 2010, which she stated helped reduce the frequency and severity of her pain. Dr. Robinson gave plaintiff an epidural injection in her cervical spine on July 19, 2010, which plaintiff told Dr. Robinson on August 3, 2010, gave her "80 percent improvement." Plaintiff did not visit with any doctors between August 3, 2010, and June 15, 2011. Plaintiff reported that during that time, the severity of her pain was reduced and she was able to perform household activities, but was still taking prescription medication to manage her pain.

         ¶ 21 Plaintiff returned to see Dr. Robinson on June 15, 2011, and reported that she was doing well until December 2010, when her pain started to return. Dr. Robinson recommended that plaintiff get a facet injection, which she reported gave her about "75 percent relief" when she saw Dr. Robinson again on August 10, 2011. Plaintiff met with Dr. Robinson a few more times that year for further pain management treatment. In November 2011, plaintiff got another MRI of her cervical spine.

         ¶ 22 Plaintiff returned to Dr. Lim's office on April 3, 2012, and reported that she continued to by symptomatic with respect to her cervical spine. Dr. Lim conducted a physical examination of plaintiff and noted that she had a positive Spurling's test (irritation upon the nerve) on both sides of her neck. Dr. Lim also noted that plaintiff had weakness in her left wrist that was "most likely" related to the nerve problem in her neck. Dr. Lim reviewed plaintiff's MRI from November 2011, and observed a herniated disc at the C5-C6 level. Dr. Lim again discussed plaintiff's surgical options with her. Dr. Lim testified that to a reasonable degree of medical certainty, all of the treatment and other procedures plaintiff underwent up to this point in her treatment were reasonably necessary and related to the automobile collision that occurred on July 28, 2008.

         ¶ 23 On cross-examination, defense counsel asked Dr. Lim whether the herniated disc shown in plaintiff's November 2011 MRI was caused by the automobile accident. Dr. Lim responded that he could not say with 100% certainty that the herniated disc was caused by the accident, but added that:

"You can damage the dis[c]. [The d]is[c] has very little capability to heal and if patients remain symptomatic, typically the dis[c] is damaged and then eventually it's going to rupture. So the fact that [the herniated disc may not have been present in plaintiff's earlier MRIs] doesn't necessarily rule out the fact that it wasn't caused by the motor vehicle accident. But on the other side of the coin, I can't say a hundred percent that it was, without question, related to the motor vehicle accident."

         Defense counsel clarified that Dr. Lim did not "have an opinion one way or the other" whether plaintiff's herniated disc was caused by the automobile collision, and Dr. Lim confirmed that he could not "give [] an opinion based on a reasonable degree of medical and orthopedic certainty."

         ¶ 24 On redirect examination, Dr. Lim testified that the trauma caused by the automobile accident in this case was sufficient to damage the disc to the level represented in plaintiff's November 2011 MRI. Dr. Lim explained that once the disc is damaged, it does not heal and that the degenerative condition may worsen and become accelerated. Plaintiff's counsel then asked Dr. Lim whether plaintiff's herniated disc was related to the automobile collision.

"Q. Okay. Do you know if it's more probably true or not whether the automobile collision that we're talking about here-whether it's more probably true or not that that played a causative role in the herniated dis[c]?
A. It's my belief, based on a reasonable degree of medical and orthopedic certainty, that she-this patient probably had some pre-existing degenerative changes that were ...

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