Court of Appeals of Illinois, First District, Sixth Division
TERRY ARIENT, Independent Executor of the Estate of Kathy Arient, deceased, Plaintiff-Appellee,
YASSER ALHAJ-HUSSEIN, M.D., and ILLINOIS ANESTHESIA AND PAIN ASSOCIATES, S.C., Defendants-Appellants.
from the Circuit Court of Cook County No. 12 L 14249
Honorable Clare McWilliams, Judge, Presiding.
HOFFMAN PRESIDING JUSTICE delivered the judgment of the
court, with opinion. Justice Connors concurred in the
judgment and opinion. Justice Delort dissented, with opinion.
HOFFMAN PRESIDING JUSTICE
1 The defendants, Dr. Yasser Alhaj-Hussein (Dr. Hussein) and
Illinois Anesthesia and Pain Associates, SC (IAPA), appeal
from a $7, 884, 761.76 judgment entered against them in this
medical negligence based action, and the denial of their
posttrial motion. In urging that the judgment be reversed and
the case remanded for a new trial, the defendants argue,
inter alia, that the trial court erred in: (1)
denying their motion in limine to bar the plaintiff
from introducing evidence of Dr. Hussein's alleged lack
of privileges to perform a celiac plexus block procedure on
Kathy Arient at the Orland Park Surgical Center and
overruling their objection to questions and argument
addressed to the issue; (2) overruling their objection to a
legal opinion rendered by one of the plaintiff's medical
experts asserting a statutory requirement that a physician
secure privileges prior to performing an operation at an
ambulatory surgical center such as the Orland Park Surgical
Center; and (3) granting the plaintiff's motion in
limine which barred them from introducing evidence of,
or making any reference to, Kathy Arient's smoking
history. For the reasons which follow, we affirm the judgment
of the trial court.
2 On October 5, 2012, Dr. Hussein performed a celiac plexus
block procedure on Kathy Arient at the Orland Park Surgical
Center. Following the procedure, Kathy Arient complained of
numbness in her legs, and she was taken by ambulance to St.
Joseph's Hospital where it was determined that she had
experienced a vasospasm, resulting in paraplegia.
3 On December 19, 2012, Kathy Arient and her husband, Terry
Arient, filed a two-count complaint against Dr. Hussein and
other defendants in the circuit court of Cook County. Count I
was a medical negligence action on behalf of Kathy Arient,
and Count II was a loss of consortium claim by Terry Arient.
Both counts charged negligence on the part of Dr. Hussein in
the performance of the celiac plexus block procedure.
4 Kathy Arient died on June 9, 2014. Her death certificate
listed stroke as the cause of death. Her death was spread of
record on July 7, 2014, and a Second Amended Complaint was
filed with leave of court on August 26, 2014. Terry Arient,
as independent executor of the estate of Kathy Arient,
deceased (hereinafter referred to as the plaintiff), was
substituted as the plaintiff.
5 The plaintiff's complaint was further amended with the
final version being a four-count Fourth Amended Complaint
filed on July 20, 2015. Count I was a wrongful death action
against Dr. Hussein and IAPA, his employer (hereinafter
collectively referred to as the defendants), predicated on
Dr. Hussein's alleged medical negligence in the
performance of the celiac plexus block procedure, resulting
in the death of Kathy Arient. Count II was a survival action
against Dr. Hussein and IAPA, seeking recovery for the
damages sustained by Kathy Arient prior to her death. Count
III was a wrongful death action against Orland Park Surgical
Center, LLC, charging institutional negligence resulting in
the death of Kathy Arient. Count IV was a survival action
against Orland Park Surgical Center, LLC, also charging
institutional negligence. On December 18, 2015, the trial
court entered an order granting Orland Park Surgical Center,
LLC's motion to dismiss Counts III and IV. No appeal has
been taken from that order, and Orland Park Surgical Center,
LLC is not a party to this appeal.
6 The case proceeded against Dr. Hussein and IAPA on Counts I
and II of the Fourth Amended Complaint which charged that Dr.
Hussein was negligent in one or more of the following
"a. Performed a celiac plexus neurolytic block with
absolute alcohol even though it was not indicated; or
b. Injected absolute alcohol into the artery Adamkiewicz or
arteries that flow into the artery of Adamkiewicz; or
c. Failed to properly identify the landmarks during the
performance of his [sic] celiac plexus neurolytic
d. Failed to recommend and/or attempt to treat Kathy
Arient's abdominal pain using more conservative
therapeutic modalities such as an intrathecal spinal catheter
e. Failed to take a radiographic image after injecting dye in
her spinal cord as part of a test dose prior to performing
the celiac plexus neurolytic block; or
f. Failed to properly manipulate/position the spinal needle
inserted into her spinal canal; or
g. Failed to possess privileges to perform celiac plexus
block surgical procedures at Orland Park Surgical Center, or
h. Failed to possess the privileges to perform celiac plexus
block procedures at any Illinois hospital."
to the complaint, one or more of Dr. Hussein's alleged
negligent acts or omissions proximately resulted in the death
of Kathy Arient (Count I) and the damages sustained by her
prior to her death (Count II).
7 Before the trial commenced, both the plaintiff and the
defendants filed motions in limine, two of which are
relevant to the issues on appeal. The plaintiff's motion
in limine No. 12 sought to bar the
defendants from introducing evidence of, or making any
reference to, Kathy Arient's smoking history. The
defendants objected, arguing that her smoking was
"central to every issue in the case, " and germane
to the issue of proximate cause. They also argued that
evidence of Kathy Arient's smoking was relevant as it
would help explain why Dr. Hussein elected to administer a
celiac plexus block to alleviate her chronic abdominal pain
rather than prescribe opiate-based medicine or implant an
intrathecal pump. The defendants referenced deposition
testimony from Dr. Timothy Lubenow in which he stated that
opiate tolerance is "a characteristic of patients that
*** are chronic smokers" and that Kathy Arient's
medical history suggests she was opiate tolerant. In
addition, the defendants argued that Dr. Kenneth Candido
testified during his deposition that patients such as Kathy
Arient who suffer from Raynaud's disease are more
susceptible to vasospasms if they continue using tobacco
products. The defendants also filed a written offer of proof
supported by excerpts from the deposition testimony of Drs.
Candido, David Kuo, Lubenow and Stephen Minore in addition to
excerpts from the deposition testimony of both Kathy Arient
and Terry Arient. According to the offer of proof, Kathy
Arient's past medical history and history of smoking was
relevant to the issues of whether Dr. Hussein deviated from
the standard of care by recommending a celiac plexus block as
opposed to alternative treatment modalities and whether any
alleged breach of the standard of care by Dr. Hussein
proximately caused Kathy Arient's death. The trial court
granted the plaintiff's motion in limine
No. 12, and stated: "[e]very time smoking is
invoked into a case it becomes a fatal issue to the
plaintiff. *** So it's highly prejudicial. I almost never
let it in unless it's a lung cancer case relating to
smoking itself. I mean, a direct correlation."
8 The defendants' motion in limine No.
6 sought to bar the plaintiff from introducing any evidence
addressed to Dr. Hussein's credentialing or surgical
privileges. They asserted that the plaintiff's claim of
negligence based on Dr. Hussein's alleged failure to
possess privileges to perform a celiac plexus neurolytic
block procedure at Orland Park Surgical Center was
erroneously based upon section 6(3)(b) of the Ambulatory
Surgical Center Treatment Act (Act) (210 ILCS 5/6(3)(b) (West
2012). The defendants noted that, during his deposition, the
plaintiff's expert witness, Dr. Minore, testified that
Dr. Hussein deviated from the standard of care by failing to
comply with section 6(3)(b) of the Act, and argued that
section 6(3)(b) was irrelevant because it "doesn't
impose a duty upon a physician to do frankly anything."
In response, the plaintiff advised the court that the
privilege issue was one of the "main theories of [his]
case." Then, citing Dr. Minore's deposition, the
plaintiff argued that Dr. Hussein was not "privilege[d]
for neurolytic" and that Illinois law "says you
have to have like privileges at an Illinois certified
hospital to perform a procedure at an Illinois licensed
surgical center." The plaintiff maintained that the link
"between the outcome and that deviation is [that Dr.
Hussein] shouldn't have done the surgery in the first
place because he was not privileged to do so at this
outpatient surgical center, " adding that "[i]t is
a central theory of our case. He shouldn't have been
doing the surgery because he didn't have privileges at
this institution to do this *** procedure." In response
to the arguments, the trial court stated "the law is the
law. Let the jurors interpret it." The trial court went
on to state that the accuracy of Dr. Minore's
interpretation of the law was a matter for cross-examination.
Thereafter, the court reserved ruling on the defendants'
motion in limine No. 6.
9 Following jury selection, the parties gave their opening
statements. The plaintiff's attorney told the jury:
"These procedures *** are so dangerous Dr. Minore will
tell you and can be so- and can cause this type of damage
that the privileges associated have to specifically say ***
neurolytic blocks. That's what Dr. Minore is going to
tell you, and you are going to see a credentialing file from
[Orland Park Surgical Center] where the procedure was done
that doesn't have that for Dr. Hussein. He doesn't-it
doesn't have that-that credential to do this specific
procedure at this specific institution and he did it anyway.
Dr. Minore is going to tell you that a reasonably careful
physician doesn't do procedures he is not privileged for
which makes some sense."
these statements, the defendants made a standing objection to
further comments about Dr. Hussein's privileges or
credentialing. The trial court overruled the objection. The
plaintiff's attorney continued on, stating that Dr.
Hussein failed to "act as a reasonably careful physician
by doing the procedure in the first place" because he
lacked the requisite privileges.
10 As his first witness, the plaintiff called Dr. Hussein as
an adverse witness. Dr. Hussein testified that he is board
certified in both anesthesia and pain medicine. He stated
that, on October 5, 2012, he performed a celiac plexus block
procedure with absolute alcohol on Kathy Arient at the Orland
Park Surgical Center. When he was questioned about his
privileges at the Orland Park Surgical Center, defense
counsel objected to the line of questioning, but the
objection was overruled. Dr. Hussein testified that he
completed a credential application at Orland Park Surgical
Center in 2012, listing his primary hospital as Riverside
Medical Center in Kankakee, Illinois. He admitted, however,
that at the time he completed the credential application, he
was not privileged to provide either anesthesia services or
pain management procedures at Riverside Medical Center. In
response to questions concerning his treatment of Kathy
Arient, Dr. Hussein stated that she was suffering from
chronic abdominal pain. According to Dr. Hussein, he
recommended the celiac plexus block because more conservative
treatment for her abdominal pain had failed. He admitted that
injecting absolute alcohol intravascularly can cause
paraplegia and stated that he told Kathy Arient of the risks
associated with a celiac plexus block on four separate
occasions. He also admitted that injecting alcohol into an
artery such as the Adamkiewicz artery would be a breach of
the standard of care. Dr. Hussein testified that Kathy
Arient's paraplegia was an unintended consequence of the
celiac plexus block procedure which would not have occurred
if she had not undergone the procedure.
11 The plaintiff called Dr. Minore, an anesthesiologist and
pain management physician, as an expert witness. Dr. Minore
opined that Dr. Hussein breached the standard of care in his
treatment of Kathy Arient by performing a celiac plexus block
with absolute alcohol, failing to first implant an
intrathecal pain pump instead of performing the celiac plexus
block procedure, injecting alcohol into the Adamkiewicz
artery or into one of the arteries leading to it, and failing
to possess privileges to perform a celiac plexus block at the
Orland Park Surgical Center. He testified that injecting
alcohol into an artery or arterial wall can potentially
result in paralysis. According to Dr, Minore, the celiac
plexus block procedure performed by Dr Hussein caused Kathy
Arient's paraplegia and contributed to her death.
12 The plaintiff's attorney asked Dr. Minore to
"tell the jurors a little bit about [his] experience in
credentialing pain management doctors in an outpatient
facility." In responding, Dr. Minore stated:
"When we credential someone for any surgical procedure
at a surgery center, the legislator [sic] in
Illinois in one of its few really good moves said that if a
doctor practices in the surgery center, they have to have the
same or like privileges in an Illinois licensed hospital.
That's State law."
defendants' attorney objected, stating: "I would
object to this entire line. This witness is interpreting the
law." The trial court overruled the objection, and Dr.
Minore continued, stating: "[y]ou have to have the same
privileges in the hospital to do them in a surgery center
***. It's a patient safety issue." Dr. Minore
testified that he could find no evidence that Dr. Hussein was
credentialed to perform a celiac plexus block at the Orland
Park Surgical Center. When he was ...