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Gapinski v. Gujrati

Court of Appeals of Illinois, Third District

April 24, 2017

REBECCA GAPINSKI, Individually, and as Duly Appointed Administrator of the Estate of Daniel W. Gapinski, Deceased, Plaintiff-Appellee,
MEENA GUJRATI, M.D., and CENTRAL ILLINOIS PATHOLOGY, S.C., a Domestic Corporation, Defendant-Appellants

         Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois. Circuit No. 11-L-27, Honorable Troy D. Holland Judge, Presiding

          O'BRIEN JUSTICE delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion. Justice Carter specially concurred, with opinion.


          O'BRIEN JUSTICE.

         ¶ 1 Plaintiff Rebecca Gapinski, individually and as the administrator of the Estate of Daniel Gapinski, deceased, sought to recover for medical malpractice she alleged was committed by defendant Meena Gujrati, M.D., an employee of defendant Central Illinois Pathology, SC (CIP), and resulted in Daniel's death from renal cell cancer. The jury found in favor of Rebecca, and the trial court entered a judgment against Gujrati and CIP in the amount of $1, 727, 409.50, jointly and severally. Gujrati and CIP appealed. We affirm.

         ¶ 2 FACTS

         ¶ 3 Daniel Gapinski, the late husband of plaintiff Rebecca Gapinski, began experiencing headaches and vision problems in early 2007. He saw his primary care physician, who referred him for magnetic resonance imaging (MRI). The results of the MRI indicated an undetermined tumor in his brain's pituitary region. Giueseppe Lanzino, a neurosurgeon, performed a biopsy and removed as much as the tumor as possible. In March 2007, while an employee of defendant CIP, defendant Meena Gujrati, a neuropathologist, read the biopsy slides and determined the mass in Daniel's brain was a primary, benign lesion called a meningioma.

         ¶ 4 Following a period of limited radiation, Daniel returned to work. In late 2008, Daniel's symptoms returned, and in early 2009, he saw neurosurgeon Jeff Klopfenstein, who attempted to schedule surgery for late February. Daniel sought a second opinion from Lanzino, who had moved to the Mayo Clinic. Daniel saw Lanzino on January 28, 2009 and was referred to John Atkinson, another neurosurgeon at Mayo, who saw Daniel the following day. Daniel sought an additional consultation with Daniel Prevedello of the University of Pittsburgh Medical Center (UPMC), who performed two surgeries in early February 2009.

         ¶ 5 The tissues obtained from the UPMC surgeries were evaluated in the UPMC pathology department, and Daniel was diagnosed with metastatic renal cell carcinoma, which had spread to the pituitary gland in his brain. He opted to be treated at the University of Chicago Medical Center (UCMC), where Russell Szmulewitz, a medical oncologist, headed Daniel's treatment plan. Szmulewitz obtained Daniel's records from OSF St. Francis, which included the original tissue evaluated by Gujrati. A UCMC pathologist examined the tissues and found the original tissues included malignant cells, which he diagnosed as renal cell cancer. Daniel continued treatment at University of Chicago until his death.

         ¶ 6 Daniel and Rebecca filed their complaint on February 4, 2011, naming Gujrati, CIP, OSF St. Francis Medical Center, and Illinois Neurological Institute (INI) as defendants and alleging negligence, apparent agency, and vicarious liability. On OSF's motion for summary judgment, OSF and INI were dismissed. Gujrati and CIP filed their affirmative defense, arguing Rebecca's complaint was time-barred by the statute of limitations. In May 2013, they filed a motion for summary judgment on the same grounds, which the trial court denied.

         ¶ 7 In February 2014, Gujrati, who was represented by the same law firm as CIP, sought leave to substitute a new law firm as counsel. Rebecca objected based on the timing of Gujrati's motion, which was filed close to the scheduled start of trial. Ultimately, Rebecca agreed to the change in counsel if the trial court required the defense attorneys to take turns or alternate questioning witnesses and allowed only one of them at a time to represent the defendants. The trial court granted Gujrati's motion to substitute and Rebecca's request to ban dual representation. It allowed Gujrati and CIP to each have its own counsel, file individual pleadings, and litigate the individual cases until trial but ordered that counsel for Gujrati and CIP be allowed to participate only one at a time during the trial.

         ¶ 8 Also in February, the trial court granted Rebecca's motion for partial summary judgment, finding that Gujrati and CIP were in an employee-employer relationship, that respondeat superior applied, and that CIP would be vicariously liable for Gujrati's malpractice.

         ¶ 9 In April 2014, CIP moved for a protective order, seeking to have Daniel's original biopsy tissue recut and evaluated by its consulting opinion witnesses. Over plaintiff's objection, the trial court granted CIP's motion and ordered that Gujrati and CIP be provided 10 cuts from the original tissue and that Rebecca also be provided 10 cuts. Per the court's order, the recuts were available to the parties for staining and evaluation. CIP was allowed additional time until May 1, 2014, to supplement its expert disclosures with opinions based on the recuts. Gujrati and CIP did not thereafter disclose any witnesses based on expert evaluation of the recuts.

         ¶ 10 On June 1, 2014, Rebecca filed her "rebuttal" disclosures regarding the recuts, including the opinion of her neuropathologist expert witness, Hannes Vogel, that the 2007 tissues "demonstrate[d] metastatic clear cell carcinoma of the kidney." CIP moved to bar Rebecca's rebuttal disclosures and Rebecca sought to convert her rebuttal disclosures to supplemental disclosures. The trial court denied CIP's motion and granted Rebecca's motion.

         ¶ 11 Daniel died on May 31, 2014, due to a metastasis to his abdomen from the kidney. Rebecca filed a first amended complaint, adding survival, wrongful death, and loss of consortium claims. Gujrati and CIP each answered and asserted affirmative defenses based on the statute of limitations. Gujrati and CIP also filed motions to dismiss based on the expiration of the statute of repose, which the trial court denied.

         ¶ 12 The trial ensued and the following evidence was presented. Daniel's primary care physician, Joel Leifheit, saw Daniel in March 2007. Daniel was complaining of headaches and vision problems. Leifheit ordered various tests, including an MRI, which revealed a mass in Daniel's brain. Leifheit referred Daniel to Giueseppe Lanzino, a neurosurgeon at OSF St. Francis Medical Center in Peoria. Lanzino performed surgery in March 2007, taking a biopsy of the mass and removing a limited portion of the tumor. Lanzino referred Daniel for radiation treatment. James McGee, a radiation oncologist, provided a course of radiation treatment.

         ¶ 13 After symptoms returned in September 2008, Daniel sought treatment with a new primary care physician, Ricardo Calderon, who referred Daniel to an endocrinologist and a neuro-ophthalmologist. An MRI in January 2009 showed the tumor had grown. In January 2009, Daniel also saw Lanzino and Atkinson, another neurosurgeon, at the Mayo Clinic. Daniel sought an additional opinion from Prevedello at UPMC. Prevedello performed two surgeries, and tissue he removed was tested. Based on the results of the tests, Daniel was diagnosed with metastatic renal cell carcinoma.

         ¶ 14 Rebecca testified to the chronology and details of Daniel's illness and treatment. When she and Daniel met with Lanzino and Atkinson at Mayo Clinic in late January 2009, they both expressed concern that the tumor was not following the growth pattern of a classic meningioma. Atkinson was suspicious the tumor was not a benign meningioma and thought that it was behaving more like a malignancy.

         ¶ 15 Even after Atkinson expressed his concern that the tumor was behaving like a malignancy, Daniel continued to receive treatment based on the original diagnosis of a benign meningioma. Rebecca and Daniel received the diagnosis of metastatic renal cell carcinoma on February 12, 2009, from Prevedello at UPMC. Daniel's kidney was removed in 2012, and he suffered a perforated bowel in 2013.

         ¶ 16 Vogel testified as a neuropathologist expert for Rebecca. He reviewed the 2007 slide that Gujrati examined, the slides from UPMC, and the recut slides. He also performed additional testing on the recut tissue. It was his opinion, based on a reasonable degree of medical certainty, that Gujrati deviated from the standard of care of a reasonably competent, well-trained pathologist or neuropathologist in reading Daniel's biopsy samples as benign meningioma and not renal cell carcinoma. It was Vogel's further opinion that Gujrati deviated from the standard of care in the stains she used to evaluate the tissue samples and in failing to include cancer as part of a differential diagnosis. Vogel also opined that Gujrati's misdiagnosis was the proximate cause of the delay in Daniel's treatment for cancer and that a different course of treatment would have been prescribed had Daniel been properly diagnosed.

         ¶ 17 James Brown testified as an expert in urology with a specialty in neurological oncology. He explained that when cancer starts in the kidney, like Daniel's cancer, if the kidney is removed in an "opportune time, " the patient is cured without any further opportunity for the cancer to spread. Brown explained the course of treatment for someone diagnosed with primary kidney cancer that had spread to the brain, including removal of the kidney. When Daniel's cancer was diagnosed as malignant in 2009, his kidney could not be removed because once he stopped taking certain medications used to treat his brain tumor, symptoms returned before the kidney surgery could take place. Brown explained the team approach to treatment. In his opinion, Daniel lost the opportunity for a cure and for the usual course of treatment because of the missed diagnosis.

         ¶ 18 On cross-examination, Brown stated that in his opinion, Daniel had stage 4 renal cell cancer in March 2007 and had a poor prognosis. Patients with stage 4 cancer had a five-year survival rate of 12 to 14% in 2007, with a median survival time of 12 to 14 months. If Daniel had been properly diagnosed in 2007, Brown would have told Daniel that his five-year survival rate was 10 to 15%, even with treatment. Because of Daniel's brain tumor, Daniel had a very limited chance to live beyond 10 years. During Brown's testimony, the defense objected on the grounds that his testimony was beyond the scope of his expertise and that his trial testimony was cumulative and duplicative of the other witnesses.

         ¶ 19 Defendant Meena Gujrati, the neuropathologist who analyzed the original biopsy tissues in 2007, testified. Her report regarding Daniel's tissue samples did not indicate he had cancer. Her final pathological diagnosis was a pituitary tumor, meningioma. Her diagnosis was based upon histologic examination and the clinical information she received from the surgeon Lanzino that the tissue looked like a meningioma. When she diagnosed Daniel in 2007, she was an employee of defendant CIP.

         ¶ 20 Prevedello, the neurosurgeon who operated on Daniel in February 2009, testified that he began treating and operated on Daniel for a meningioma based on the medical history. Because of bleeding from the tumor, he had to conduct two surgeries. He performed a biopsy, and his analysis of the frozen section showed malignant characteristics, which he characterized as an aggressive meningioma. He was surprised when told by the UPMC pathologist that Daniel had renal cell cancer. He immediately told Daniel, which occurred on February 11. He also ordered an MRI, which showed a mass in Daniel's kidney.

         ¶ 21 Russell Szmulewitz, a medical oncologist, testified. He had a subspeciality in genitourinary oncology, including kidney cancer, and treated Daniel for the five-year period before his death. The majority of patients with renal cell cancer die and treatment merely delays the death. He did not know whether Daniel would have had a significantly longer survival had he received treatment for cancer in 2007 instead of 2009. In 2013, the cancer metastasized to Daniel's abdomen. If he had been properly diagnosed, Daniel would not ...

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