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
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
"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
A. No. Just that it was a trocar perforation."
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
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
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
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
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
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]
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
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
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
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,
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
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
"Q. And the entry point was at the umbilicus?
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 ...