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Simpkins v. HSHS Medical Group, Inc.

Court of Appeals of Illinois, Fifth District

December 8, 2017

JUDITH K. SIMPKINS and ROBERT L. SIMPKINS, Plaintiffs-Appellants,
HSHS MEDICAL GROUP, INC., d/b/a Southern Illinois Brain and Spine Center; NICHOLAS E. POULOS, M.D.; HOSPITAL SISTERS HEALTH SYSTEM; and ST. ELIZABETH'S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Defendants St. Elizabeth's Hospital of the Hospital Sisters of the Third Order of St. Francis, Defendant-Appellee.

         Appeal from the Circuit Court of St. Clair County. No. 13-L-183 Honorable Vincent J. Lopinot, Judge, presiding.

          Attorneys for Appellants Robert W. Schmieder II, Bradley M. Lakin, SL Chapman LLC

          Attorneys for Appellee Michael J. Nester, Chi-yong Throckmartin, Jason M. Gourley, Donovan Rose Nester, P.C.,

          JUSTICE CATES delivered the judgment of the court, with opinion. Justice Chapman concurred in the judgment and opinion.


          CATES JUSTICE.

         ¶ 1 The plaintiffs, Judith K. Simpkins and Robert L. Simpkins, appeal an order of the circuit court dismissing count IV of the first amended complaint against defendant, St. Elizabeth's Hospital of the Hospital Sisters of the Third Order of St. Francis (Hospital), on grounds that the allegations were time-barred. On appeal, the plaintiffs contend that the allegations in count IV of the amended complaint relate back to the original complaint and are not time-barred and, alternatively, that count IV was timely filed prior to the expiration of the statute of repose and within two years of discovering the negligence of the Hospital's staff. For reasons that follow, we reverse the circuit court's order dismissing count IV of the first amended complaint and remand the cause for further proceedings.


         ¶ 3 In January 2010, plaintiff Judith Simpkins consulted defendant Nicholas E. Poulos, M.D., because of low back pain and pain in the left buttock, thigh, and calf. Dr. Poulos, a neurosurgeon, evaluated Judith's condition, diagnosed left lumbar radiculopathy secondary to multilevel spinal stenosis, and recommended a lumbar laminectomy. In February 2010, Dr. Poulos performed a lumbar laminectomy at vertebral levels L3 through L5. The office notes for Dr. Poulos indicate that the procedure provided relief for about four months. Subsequently, Judith began to experience pain in her right buttock, radiating into the thigh and calf. She returned to Dr. Poulos for an evaluation of these symptoms. Dr. Poulos recommended a series of transforaminal blocks and epidural injections, but these therapies provided only temporary relief. Because Judith's symptoms persisted, Dr. Poulos recommended additional surgery.

         ¶ 4 On January 26, 2011, Dr. Poulos performed an anterior lumbar spinal fusion surgery. The surgical procedure was performed at the Hospital in Belleville, Illinois. During the procedure, Dr. Poulos affixed two Medtronic plates to stabilize the fusions at the L4-L5 and the L5-S1 vertebrae. Postoperatively, Judith suffered significant medical complications and was transferred to a rehabilitation facility for further care. Subsequently, she developed an abdominal wound dehiscence and an infection, requiring an additional hospital stay. She was discharged home on March 2, 2011. On April 11, 2011, Judith had follow-up X-rays of the lower lumbar spine. The X-rays showed the Medtronic plate at L5-S1 was well positioned and the Medtronic plate at L4- L5 had pulled about 10 millimeters off of the spine. After reviewing the X-rays, Dr. Poulos decided to schedule Judith for follow-up X-rays and an imaging scan to further define the vascular anatomy and determine whether there was any additional movement of the displaced plate. Although Judith was not reporting any physical symptoms, there was concern about the potential for vascular compromise because the displaced plate was in close proximity to the inferior vena cava and the aorta.

         ¶ 5 Approximately two weeks later, Judith had follow-up X-rays and an abdominal computerized tomography (CT) scan. The CT scan, performed on April 21, 2011, indicated that the displaced plate had not migrated further but that it was causing the distal abdominal aorta to bow. The CT also showed that the displaced plate was touching, but not displacing, the vena cava. Dr. Poulos met with the plaintiffs on April 27, 2011. During that visit, Dr. Poulos recommended a semi-elective revision surgery to remove the displaced plate and to affix pedicle screws to stabilize the fusion. Dr. Poulos indicated that without the surgery, over time, Judith would be "at risk for erosion of her aorta and a potentially catastrophic hemorrhage." With Judith's consent, Dr. Poulos planned to schedule the surgery within the next two weeks. On May 9, 2011, the plaintiffs made an unscheduled visit to Dr. Poulos's office. According to the office notes, Judith reported that she was anxious about the surgery. Dr. Poulos reviewed the procedure with the plaintiffs, including its risks and benefits.

         ¶ 6 On May 13, 2011, Dr. Poulos performed the revision surgery at the Hospital. In the operative note, Dr. Poulos observed there was "no evident arterial or venous injury." Following the surgery, Judith was placed in the intensive care unit (ICU). According to the Hospital record, at 4:30 p.m., Dr. Poulos left a written order directing the nurses to perform a vascular assessment every two hours. According to the order, a Doppler check of the dorsalis pedal pulses was to be performed as part of each vascular assessment. The ICU records indicate that within a few hours after the surgery, Judith began to complain of numbness in her left foot. According to the ICU records, Beth Stewart, an ICU nurse who cared for Judith during the evening shift, conducted neurological assessments at 5 p.m. and 6 p.m. Stewart documented Judith's complaints of numbness of her left foot. Stewart noted that Judith was able to move both feet, and that the neurological check was positive for Doppler pedal pulses. As a part of her documentation, Stewart also noted that she informed Dr. Poulos of her findings.

         ¶ 7 At approximately 8 p.m. on May 13, 2011, another ICU nurse, Cynthia Kovach, began to care for Judith. According to the ICU records, Kovach performed a neurological check at 8 p.m. Kovach observed that Judith had tingling in both feet, that sensation was intact, that she could move all of her extremities, and that her legs were weaker. At 10:47 p.m., Kovach observed that Judith had tingling and numbness below the knees in both of her legs, and that these symptoms were greater on the right leg. Kovach noted that Judith was able to feel touch and pinch sensations in both legs but that sensations had diminished. At approximately 1 a.m., Kovach observed diminished sensations in Judith's feet. At 2:11 a.m., Kovach noted a further diminution of sensation in both of Judith's feet and a weak plantar push on the right. She also documented Judith's complaints that her legs were feeling heavy and tingling was present below her left knee to her foot. To the extent we can interpret the records, there appears to be no indication that Kovach assessed Judith's pedal pulses with a Doppler device during the period from 8 p.m. until 4 a.m. and no indication that Kovach notified Dr. Poulos of Judith's changing condition during that time frame.

         ¶ 8 At 4:20 a.m., on May 14, 2011, the Hospital records appear to indicate that Dr. Poulos spoke with Kovach and ordered a stat CT of Judith's lumbar spine. It is unclear whether Dr. Poulos called the ICU, or whether someone from the ICU contacted Dr. Poulos. In the next nursing assessment at 5:27 a.m., Kovach recorded absent sensation in Judith's right foot and continued tingling below the left knee to her foot. Kovach also noted that the Doppler showed Judith's pedal pulses were weak, with the right side weaker than the left. Kovach documented that Judith complained of pain in both legs and lower back, that Judith's legs felt heavy, and that Judith could move her legs only very slowly. At 5:40 a.m., Dr. Poulos contacted the ICU, issued an order to page Dr. Finlay, a vascular surgeon, and asked him to call Dr. Poulos at home. At 5:45 a.m., Dr. Finlay called the ICU with an orders to obtain consents and prepare Judith for surgery.

         ¶ 9 When Dr. Finlay arrived at the hospital, he evaluated Judith and ordered an arterial Doppler imaging assessment. Dr. Finlay observed that Judith had poor blood flow and decreased sensations in both legs. He diagnosed bilateral lower extremity (BLE) ischemia with aortic occlusion. He recommended an emergent aorto-bilateral lower extremity thromboembolectomy to attempt to restore blood flow to the vessels in Judith's legs and to determine what was causing the occlusion. Dr. Poulos also came to the Hospital and evaluated Judith. He suspected ischemia, secondary to an aortic thrombus.

         ¶ 10 At 8 a.m. on May 14, 2011, Julie Denton, presumably the day-shift ICU nurse, conducted a vascular assessment and charted that sensation to both of Judith's feet was "absent." Judith was evaluated by a physician on the hospitalist service at 8:40 a.m. Shortly after that evaluation, Judith was taken to the operating room. She underwent emergency surgery, performed by Dr. Finlay. According to Dr. Finlay's operative report, Judith had developed bilateral lower extremity ischemia and an aortoiliac dissection with complete occlusion of the aorta. Additionally, there was complete occlusion of the common iliac arteries, bilaterally, with distal thrombus. Dr. Finlay performed an aortoiliofemoral thromboembolectomy bilaterally, a stent graft repair, and an aortobiiliac dissection. Postoperatively, Dr. Finlay noted that Judith was to be observed for development of compartment syndrome because the surgical procedure lasted approximately 4 hours and 20 ...

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