Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 14 L 008168
Honorable Ronald J. Bartkowicz, Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court, with
opinion. Justices Pierce and Griffin concurred in the
judgment and opinion.
1 Plaintiff Ferid Okic's common bile duct was damaged
during a routine gallbladder removal surgery. This injury
went undiagnosed for over a month, requiring corrective
surgery and significantly delaying Mr. Okic's recovery.
Mr. Okic sued his surgeon, Dr. Athanasios Diniotis, alleging
both that he negligently performed the surgery and that he
was negligent in providing postoperative care. Mr. Okic did
not, however, retain an expert qualified to testify regarding
the applicable standard of care for performing gallbladder
2 Just before the trial began, the trial court granted
several of Dr. Diniotis's motions in limine,
including ones barring Mr. Okic from presenting any evidence
related to the performance of the surgery because of the
absence of expert testimony on this issue. The jury found
against Mr. Okic and in favor of Dr. Diniotis on Mr.
Okic's remaining theory of negligence.
3 On appeal, Mr. Okic challenges the trial court's in
limine rulings barring him from presenting evidence
related to the surgery itself and evidence that he contends
would also have supported his claim of postoperative
negligence. Mr. Okic also argues that the court should have
granted his motion for a judgment in his favor or, in the
alternative, for a new trial on his claim of postoperative
4 For the reasons that follow, we conclude that the trial
court's ruling precluding Mr. Okic from presenting any
claim that Dr. Diniotis negligently performed the gallbladder
removal was equivalent to the granting of an untimely
dispositive motion. It was improper for Dr. Diniotis to
present or for the trial court to entertain such a motion
under the guise of a motion in limine. Because it is
clear from the record, however, that Mr. Okic could not have
presented evidence to support a claim of surgical negligence,
we find no reversible error.
5 We further conclude that the trial court did not abuse its
discretion in its other in limine rulings and that
the jury's verdict in favor of Dr. Diniotis on his
remaining claim of negligent postsurgical care was supported
by the evidence. Mr. Okic's other arguments, which relate
exclusively to damages, need not be addressed since there was
no finding of liability.
6 I. BACKGROUND
7 Mr. Okic was diagnosed with gallstones in May 2012 and
consulted with Dr. Diniotis in early August of that year
regarding the need for an outpatient laparoscopic
cholecystectomy (gallbladder removal surgery). Dr. Diniotis
performed the surgery on August 18, 2012, and continued to
monitor Mr. Okic over the next month. By September 22, 2012,
Mr. Okic was jaundiced and bile was still collecting in a
Jackson-Pratt drain left at the incision site rather than
flowing, as it should have, directly through the common bile
duct to his small intestine.
8 Mr. Okic was admitted to Our Lady of Resurrection Hospital
(Resurrection) for a series of diagnostic tests, which
revealed that his common bile duct had been severed. He was
then transferred to Rush University Medical Center (Rush) on
September 27, 2012, for further assessment. Mr. Okic was
discharged on October 3, 2012, and returned to Rush on
November 16, 2012, for corrective surgery and follow-up care
by Dr. Edie Chan. He was finally cleared to return to work at
the end of January 2013.
9 On August 5, 2014, Mr. Okic sued Dr. Diniotis and Fullerton
Surgery Center, Ltd. (Fullerton), where his cholecystectomy
was performed, for negligence and negligent infliction of
emotional distress. Fullerton settled the claims against it
and is not a party to this appeal, but the claims against Dr.
Diniotis proceeded to trial.
10 A. Motions in Limine
11 One week before trial, the trial court granted a number of
Dr. Diniotis's motions in limine to bar certain
testimony and evidence. Several of these are at issue on this
12 Motions in limine Nos. 24 and 25 sought to bar
Mr. Okic from offering any evidence that the injury to his
common bile duct was the result of surgical negligence or
"mistake" on the part of Dr. Diniotis. In support
of these motions, Dr. Diniotis argued that a breach of the
surgical standard of care could only be established through
the testimony of a qualified medical expert. At argument, Mr.
Okic's counsel agreed that his expert witness, Dr. Carl
Blond, would offer no opinion regarding the applicable
surgical standard of care. Mr. Okic's counsel argued that
such testimony was unnecessary, both because a lay person
would know that a surgeon should not cut the common bile duct
during a gallbladder removal and because Mr. Okic could rely
instead on what his counsel characterized as an
"admission" by Dr. Diniotis. The trial court
disagreed and granted the motions.
13 Motions in limine Nos. 21 and 27 sought to bar
Mr. Okic from offering any evidence of Dr. Diniotis's
"domestic circumstances," including any evidence
tending to show that Dr. Diniotis was distracted by the fact
that, in the month or two before Mr. Okic's surgery, he
learned that his son had brain cancer. At her deposition, Mr.
Okic's sister-in-law, Elvira Okic, testified that she had
a conversation with Dr. Diniotis sometime after the surgery
in which, according to the motion, "he allegedly told
her that he had made a mistake during the August 18, 2012,
cholecystectomy and that he should [not] have been performing
the procedure because his son had recently been diagnosed
with a brain tumor." At his own deposition, Dr. Diniotis
acknowledged the timing of his son's diagnosis, as well
as the fact that his son passed away approximately a year and
a half later, but denied making any statements to Ms. Okic
regarding the effect, if any, of that situation on his
performance as a doctor or surgeon.
14 The trial court granted these motions too, reasoning that
evidence concerning Dr. Diniotis's state of mind during
surgery was not relevant because Mr. Okic had failed in the
first place to establish either the relevant surgical
standard of care or a breach of that standard. The court
rejected Mr. Okic's argument that evidence of the
doctor's conversation with Ms. Okic was still relevant to
show that he was distracted during the postoperative period.
The court noted that Mr. Okic and his family were free to
testify about any inattention or failure on Dr.
Diniotis's part to promptly respond to their complaints
but concluded that, absent any connection between his
son's diagnosis and Dr. Diniotis's postoperative
conduct, introducing such evidence to show that the
doctor's performance suffered as a result of events in
his personal life was speculative.
15 Finally, the court granted motions in limine Nos.
26, 28, and 29, all relating to damages, in which Dr.
Diniotis sought to bar evidence of damages not related to Mr.
Okic's postsurgical care and testimony by an economist
regarding the value of his future lost wages, on the grounds
that no medical testimony established that his injuries were
permanent or ongoing.
16 B. Trial Testimony
17 A four-day trial was held in November 2017. The jury heard
testimony from Mr. Okic and members of his family, from Dr.
Diniotis and Dr. Chan, and from competing expert witnesses
regarding the relevant postoperative standard of care. Mr.
Okic's medical records, including notes made by Dr.
Diniotis and records kept by Fullerton, Resurrection, and
Rush, were also entered into evidence, though they were not
included in the record on appeal.
18 1. Dr. Diniotis
19 Mr. Okic first called Dr. Diniotis as an adverse witness.
Dr. Diniotis testified that he went to medical school in
Greece and moved to the United States in 1977. At the time of
trial he had worked as a surgeon in Chicago for over 30
years. Dr. Diniotis agreed that his practice was a
"one-man operation" and "very busy." He
was the only doctor in the practice, and his wife was his
20 Dr. Diniotis acknowledged that there was a language
barrier between him and Mr. Okic, a Bosnian refugee whose
English is limited, but noted that Mr. Okic was always
accompanied by his brother, sister, or another family member,
who Dr. Diniotis said spoke English "far better than
21 After a period of observation following his
cholecystectomy, Mr. Okic was released to the care of his
brother, Velid Okic, with instructions to keep the dressing
on and to empty the Jackson-Pratt drain, left in his body to
collect fluids, every four hours. Mr. Okic was given a note
telling his employer he could not return to work until August
24, 2012. Dr. Diniotis explained that with a laparoscopic
cholecystectomy, "the holes are very small, and people
go back to work quickly." He expected Mr. Okic to be
fully functioning within six days of his surgery.
22 Dr. Diniotis saw Mr. Okic a total of seven times in the
month following the surgery. Although Dr. Diniotis made no
indication of an ongoing treatment plan for Mr. Okic in his
notes, he testified that he "was watching [Mr. Okic]
very closely," and "was really focused on the
[Jackson-Pratt] drainage." Dr. Diniotis saw no reason to
weigh Mr. Okic or take his blood pressure following the
surgery. He explained that his customary practice is to ask
postoperative patients about their temperature, food intake,
and whether they are experiencing pain, and to only document
"the abnormal things." If everything is fine with a
patient, the doctor writes nothing down in his notes.
23 A postoperative telephone assessment done by Fullerton
staff on August 22 indicated that, four days after his
surgery, Mr. Okic was experiencing mild nausea but no
vomiting. At that time he reported bile drainage of 50 to 60
milliliters every four hours. Dr. Diniotis described this as
"a little excessive but still expected." He did not
do anything in response to this information because there
was, in his opinion, no need to.
24 On September 8, Dr. Diniotis noted that there was still
bilious drainage, but that it was "much less now,"
and on September 15 he noted that there had been no drainage
for two days. He explained that this was good. But his notes
from September 20 indicated that bile had begun to drain
again after the third day. None of these postoperative notes
included any mention of pain or any other complaints.
25 Dr. Diniotis said he was surprised when, on September 22,
Mr. Okic appeared jaundiced, and he admitted him to the
hospital right away. He explained that jaundice was a sign
that there was "some kind of obstruction *** in the
common [bile] duct." Dr. Diniotis agreed that his
notation for this visit was the first one in which he
mentioned any issue or complication with respect to Mr.
26 Dr. Diniotis testified that he did not recall being shown
a drainage log by Mr. Okic or his family members. He insisted
that, if the drainage had been excessive, he would have
written that down, "[s]o obviously that was not the
case." He agreed, however, that except for two to three
days around September 15, Mr. Okic experienced a bile leak
for the entire month of September. He insisted that there was
no reason to do anything about this because Mr. Okic had no
significant complaints, "like pain, jaundice or
27 Dr. Diniotis agreed that Mr. Okic followed all of his
instructions and never missed a follow-up appointment.
Although he also agreed that white stool and jaundice are
indications of a bile leak, he denied that Mr. Okic or his
relatives told him as early as September 8 that Mr. Okic was
experiencing white stool. According to Dr. Diniotis, there
was no indication on either September 8 or September 15 that
Mr. Okic had a damaged common bile duct.
28 Plaintiff's counsel attempted to question Dr. Diniotis
about Dr. Chan's subsequent conclusion that Mr.
Okic's common bile duct had been severed during the
cholecystectomy performed by Dr. Diniotis. But, as the
following exchange demonstrates, the court's pretrial
rulings put an end to this line of questioning:
"Q. It says 'Transected bile duct.' Do you see
A. I see that.
Q. What does that mean, sir, in your experience?
A. It means that the common [bile] duct had been transected.
Q. Meaning cut?
Q. Did anyone else have their instruments and tools on August
18th, 2012 at the Fullerton Surgery Center on Mr. Okic ...