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Okic v. Fullerton Surgery Center, Ltd.

Court of Appeals of Illinois, First District, First Division

June 10, 2019

FERID OKIC, Plaintiff-Appellant,
FULLERTON SURGERY CENTER, LTD., and ATHANASIOS DINIOTIS, M.D., a/k/a Thomas Diniotis, Individually and as an Agent of Fullerton Surgery Center, Ltd., Defendants(Athanasios Diniotis, M.D., a/k/a Thomas Diniotis, Defendant-Appellee).

          Appeal from the Circuit Court of Cook County. No. 14 L 008168 Honorable Ronald J. Bartkowicz, Judge Presiding.

          MIKVA, 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 removal surgery.

         ¶ 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 negligence.

         ¶ 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 appeal.

         ¶ 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 office manager.

         ¶ 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 [Mr. Okic]."

         ¶ 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. Okic's recovery.

         ¶ 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 peritonitis [inflammation]."

         ¶ 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 that?
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?
A. Cut.
Q. Did anyone else have their instruments and tools on August 18th, 2012 at the Fullerton Surgery Center on Mr. Okic ...

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