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Swift v. Schleicher

Court of Appeals of Illinois, Second District

December 29, 2017

LISA SWIFT, Plaintiff-Appellant,

         Appeal from the Circuit Court of Winnebago County. No. 12-L-125 Honorable J. Edward Prochaska, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Spence concurred in the judgment and opinion.



         ¶ 1 In 2010, defendant Dr. David J. Schleicher, who was employed by defendant Swedish American Hospital (Swedish American), performed a laparoscopic hysterectomy on plaintiff, Lisa Swift. Schleicher perforated plaintiffs small bowel with three through-and-through holes. He failed to diagnose the perforations until four days later. Plaintiff developed sepsis, needed bowel resection surgery, and suffered additional complications requiring hospitalization and home health care. Plaintiff filed a malpractice suit. Defendants admitted that they caused the injury, but they argued that the injuries were not a result of negligence. The jury agreed. Plaintiff filed a motion for a new trial, which was denied. Plaintiff appeals, arguing that the trial court committed reversible error by (1) allowing evidence that plaintiff's expert, Dr. Robert Dein, caused a bowel injury in 1989; (2) allowing cumulative defense testimony; and (3) declining to find the verdict against the manifest weight of the evidence. We agree with plaintiff on the first point. Dein's testimony regarding the 1989 injury was not relevant to impeach or affirmatively elucidate his testimony concerning the 2010 standard of care. The admission of the improper evidence appears to have affected the outcome of the trial, because it was not cumulative of any properly admitted evidence and because in closing defendants used the improper evidence to severely attack Dein's integrity and to conflate the issues to be decided by the jury. We briefly address the second argument to avoid its recurrence on remand. We need not address the third argument.

         ¶ 2 I. BACKGROUND

         ¶ 3 The parties offer competing accounts of how plaintiff's injury occurred. According to defendants, while still at the limited-visualization stage of the surgery, Schleicher made one errant thrust while inserting the umbilical surgical port, or "trocar, " resulting in multiple holes to a compressed (flattened), looped bowel that was adhered to the abdominal wall. According to plaintiff, after reaching the direct-visualization stage of the surgery, Schleicher made multiple errant thrusts while inserting and navigating the left trocar, resulting in multiple holes to a normal-anatomy bowel. And, even if the injury occurred while he inserted the umbilical trocar, Schleicher was negligent for failing to timely recognize the injury. Defendants all but concede that, if the injury happened as plaintiff posits, then Schleicher deviated from the standard of care. Therefore, the question of how the injury occurred, via the umbilical trocar or the left trocar, was of significant consequence to the jury's ultimate determination.

         ¶ 4 Plaintiff presented Dein as her only expert in support of her left-trocar theory. Schleicher and his assistant, Dr. David Moore, testified to the surgical incident. Swedish American called one expert, Dr. Henry Dominicis, an obstetrician/gynecologist, to testify to the umbilical-trocar theory and the standard of care. Schleicher called two experts: Dr. Kim Sobinsky, a general surgeon, who testified to plaintiff's post-operative care and the ultimate diagnosis of the perforated bowel, and Dr. Lewis Blumenthal, an obstetrician/gynecologist, who testified to the umbilical-trocar theory and the standard of care.

         ¶ 5 The experts submitted to depositions, with only Dein's being relevant on appeal.

         ¶ 6 A. Dein's Deposition

         ¶ 7 In his deposition, Dein testified to the cause of the injury:

"Q. In your opinion, how did the injury occur?
A. *** [T]rocar perforations.
Q. Which trocar?
A. Well, I'm not a hundred percent certain. It-my initial thought is that it was the [umbilical] trocar because he had difficulty with the initial [umbilical trocar]. He tried probably multiple passes and couldn't get in. Then he tried a deeper one and was able to get in.
But when I reread his operative note, [which stated that] the left [trocar] had to be lowered to avoid omental adhesions, [I thought] that it's possible that he was having difficulty with the left-hand trocar and that's where the perforations occurred. In either event, I'm quite certain it was a trocar perforation. ***
Q. Can you state to a reasonable degree of medical certainty whether it was the initial [umbilical] trocar that injured the small bowel or the placement of the left ancillary trocar?
A. No. Just that it was a trocar perforation." (Emphases added.)

         ¶ 8 Later in the deposition, Dein began to favor the left-trocar theory: "[T]he more I'm talking, the more I'm making myself believe-it was the left-hand port, not the-not the umbilical port, because it was a sharp instrument and there was omental adhesions in that area."

         ¶ 9 Additionally, Dein testified to a 1989 umbilical entry he performed that led to a bowel perforation. There, the entry was entirely blind, or by feel. The patient had a "distorted anatomy, " in that her bowel stuck to her abdominal wall. Dein immediately recognized his mistake, and the patient underwent immediate corrective surgery. Dein was subject to a malpractice suit.

         ¶ 10 Following Dein's deposition, plaintiff moved in limine to bar cross-examination of Dein about the 1989 procedure. Plaintiff noted that, generally, experts should not be cross-examined about prior malpractice suits against them. Mazzone v. Holmes, 197 Ill.App.3d 886, 897 (1990); Webb v. Angell, 155 Ill.App.3d 848, 860 (1987); Miceikis v. Field, 37 Ill.App.3d 763, 771 (1976). Defendants responded that the 1989 procedure was relevant to credibility in that Dein believed that he followed the standard of care but Schleicher did not, under similar circumstances. Schmitz v. Binette, 368 Ill.App.3d 447, 459 (2006). The trial court denied the motion, reasoning that the 1989 procedure was relevant to credibility. The defense would be allowed to question Dein about the 1989 procedure, but it would not be allowed to mention the associated malpractice suit. Plaintiff moved to reconsider, and defendants argued, for the first time, that Dein's testimony about the 1989 procedure was admissible as affirmative evidence of the standard of care. The trial court denied the motion, again reasoning that the 1989 procedure was relevant to credibility. It did not mention affirmative evidence.

         ¶ 11 B. Trial

         ¶ 12 1. Dein

         ¶ 13 At trial, Dein testified to (1) his own expertise; (2) the nature of the laparoscopic-hysterectomy procedure; (3) plaintiff's medical history and injury; (4) why he believed that the injury was caused by the left, rather than the umbilical, trocar; (5) why he believed that Schleicher deviated from the standard of care under either operative scenario; (6) why he believed that Schleicher deviated from the standard of care postoperatively; and (7) the 1989 procedure.

         ¶ 14 Dein attended Johns Hopkins University and the University of Pennsylvania School of Medicine. He graduated from medical school in 1983, completed a four-year residency, and had practiced as an obstetrician and gynecologist ever since. He had performed numerous gynecological surgeries, including laparoscopic hysterectomies. He typically performs two to four gynecological surgeries every week.

         ¶ 15 Dein described plaintiff's procedure as a laparoscopic hysterectomy and removal of the left ovary. The procedure is performed by inserting three trocars: an umbilical trocar, a left trocar, and a right trocar. The umbilical trocar uses what is known as an Optiview, which allows for partial visualization while the umbilical trocar is inserted. After the umbilical trocar is inserted, a different camera is placed in the device, thereby providing full visualization for the remainder of the surgery. With full visualization, the left trocar and the right trocar are inserted. Dein agreed that there is risk with every surgery. With a hysterectomy, bowel perforation is a known risk.

         ¶ 16 Plaintiff's medical history put her at heightened risk. For example, plaintiff suffered from obesity. Additionally, plaintiff had five prior abdominal operations, including three cesarean sections and a gallbladder removal. This meant that plaintiff likely had scar tissue throughout her abdomen.

         ¶ 17 During the surgery, Schleicher perforated plaintiff's small bowel, leaving three separate through-and-through holes. Several days later, when the damaged portion of the bowel was removed, each hole was approximately one centimeter in diameter. While bowel perforation is a known risk, the type of bowel perforation that occurred here was a "surgical outlier." To Dein, three through-and-through perforations indicated negligence.

         ¶ 18 Dein believed that the injury occurred during the insertion of the left trocar, because (1) Schleicher had trouble with the left-trocar entry and (2) the wounds corresponded with the size and sharpness of the left trocar. First, the left-trocar entry was complicated by omental adhesions. An omentum is a fatty, yellow apron. Surgeons do not want to go through the omentum, because it contains blood vessels. Schleicher likely pierced the bowel while trying to avoid the omental adhesions. Second, the left-trocar tip is approximately five millimeters. When the damaged bowel was removed, each hole was approximately one centimeter, or twice the size of the tip. Dein would expect the holes to expand this much over a course of days. Also, the holes appeared to have been caused by a sharp instrument, such as the left trocar.

         ¶ 19 Dein believed that Schleicher acted negligently in navigating around the left omental adhesions. Instead of trying to go around the left omental adhesions, Schleicher should have chosen a different entry point. Choosing a different entry point is not advanced surgery; it is something surgeons do "all the time." Schleicher could have entered in a clear area, perhaps the upper cavity. Or, he could have used the umbilical and right trocars to "put laparoscopic scissors in to *** cut that scar tissue, drop it away from the area of the left lower quadrant, and then if need be, go ahead and put the [left] trocar in."

         ¶ 20 Dein did not agree with the theory that the injury occurred during the umbilical-trocar entry and by striking a looped bowel. The tip of the umbilical trocar is pyramidal in shape and one centimeter in diameter. It is unlikely to have caused holes that were one centimeter when the damaged bowel was removed several days later. That would mean that the holes had not expanded at all, even as "bowel contents extrude[ed] profusely." Also, the bowel could not have been looped such that one errant thrust caused three through-and-through perforations, because the damaged portion of the bowel was only 13 centimeters long. If such a relatively short portion of the bowel had been looped to that extent, plaintiff would have had prior bowel difficulties and obstructions. She did not. Also, the surgeons who performed the excision of the damaged bowel did not note that it was looped.

         ¶ 21 Nevertheless, Dein could not absolutely rule out that the injury occurred during the umbilical-trocar entry. Schleicher reported difficulty with the umbilical-trocar entry. He made multiple attempts at the entry. He initially used a standard-size trocar, but then traded it out for a longer trocar.

         ¶ 22 Dein believed that Schleicher deviated from the standard of care even if the injury occurred during the umbilical-trocar entry. Again, three separate perforations were not within the normal risk. And, if the trocar had gone through a looped bowel in one thrust, it would have been "a large amount of tissue, " which Schleicher should have noticed.

         ¶ 23 During cross-examination, Dein acknowledged that, in the beginning of his deposition, he could not state to a reasonable degree of medical certainty whether the injury was caused by the left or the umbilical trocar. "But then as the deposition went on ***, I specifically said that as we're talking about it, it seems more and more clear it's the left trocar." The defense asked:

"Q. So your opinion actually evolved from the beginning of your deposition until the end of your deposition, true?
A. No. My opinion got stronger. *** I knew it was a trocar injury.
A. I said that I couldn't state to within a reasonable degree of medical certainty, but I believed it was the left. And then as we discussed it, I felt stronger about it, yes."

         ¶ 24 Dein opined that Schleicher was negligent not only in causing the injury, but in failing to recognize it. During surgery, regardless of whether the bowel was compressed, Schleicher should have been able to see on the Optiview that he invaded the bowel. Had Schleicher performed an adequate inspection of the bowel region, he "certainly" should have seen signs of three through-and-through perforations. After surgery, plaintiffs condition worsened. While plaintiffs baseline kidney function was "not normal [but also] not terrible, " her postoperative kidney function approached "failure." Her urine output shut down. Fluid pushed into her fat tissue instead of being processed by her kidneys. Schleicher should have ruled out medication as a cause for the kidney shutdown, because the particular type of medication given to plaintiff, vasopressors, does not affect kidney function. Given that plaintiff had a hysterectomy, Schleicher should have suspected a perforated bowel when plaintiff exhibited kidney shutdown and "third spacing [of] fluid." These symptoms were obvious by December 15, 2010, but Schleicher did not recognize the bowel perforation until December 17, 2010. The sooner Schleicher had recognized the problem, the less severe plaintiffs infection would have been.

         ¶ 25 During cross-examination, Dein acknowledged that Schleicher called in specialists to review plaintiff's symptoms in the days following surgery. Schleicher called in a nephrologist and ordered a CT scan. Schleicher continued to monitor plaintiff. On December 16, 2010, plaintiff told Schleicher that she felt "much better, " and her urine output increased.

         ¶ 26 During redirect examination, Dein stated that the CT results were consistent with a bowel perforation. The results showed inflammation. Schleicher should have investigated further.

         ¶ 27 Dein testified to the 1989 procedure. In 1989, Dein performed a laparoscopic hysterectomy. In 1989, the procedure was new. No cameras were available for the entry. It was a "true blind, " or by-feel, approach. Dein perforated the patient's large bowel during the initial umbilical entry. It was one puncture and not through-and-through. After he made the entry, he put in a camera, and he saw that he was inside the bowel. Right away, he called for additional doctors to perform corrective surgery. The patient had a "distorted anatomy, " in that her large bowel adhered to her abdomen at the entry point. This was the only time that Dein ever injured a patient with a trocar.

         ¶ 28 During cross-examination, Dein again testified that, in 1989, he inserted an umbilical trocar into a patient's large bowel:

"Q. And the entry point was at the umbilicus?
A. Yes.
Q. Similar to this case-right?-for the initial entry point?
A. Entry was into the umbilicus, yes.
Q. And it's your testimony that it occurred because it was stuck to the underside of the umbilicus. As it turned out, her bowel was stuck to the entire abdominal wall; true?
A. Well, it occurred because it was stuck to the underside of the umbilicus. As it turned out, her bowel was stuck to the entire anterior abdominal wall.
Q. And you described this as, quote, very ...

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