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Castillo v. Stevens

Court of Appeals of Illinois, First District, Second Division

October 22, 2019

Ludgarda R. CASTILLO and Richard Castillo, Plaintiffs,
Jeremy STEVENS, M.D. and the Center for Athletic Medicine, Ltd., Defendant-Appellees,

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         Appeal from the Circuit Court of Cook County, No. 11-L-5118; the Hon. Thomas V. Lyons, Judge, presiding.

          Adam P. Merrill, of Sperling & Slater, of Chicago, for appellant.

          Michael D. Krause and Gregory V. Ginex, of Bollinger Connolly Krause, LLC, of Chicago, for appellee Jeremy Stevens.

          Kevin T. Martin, Catherine Basque Weiler, and Nathaniel S. Widell, of Swanson, Martin & Bell, LLP, of Chicago, for other appellee.

         Panel JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment and opinion.



         ¶ 1 Plaintiff, Ludgarda R. Castillo, appeals from a jury's verdict in favor of defendants, Dr. Jeremy Stevens and The Center for Athletic Medicine ("CAM"), on plaintiff's claim of medical negligence. On appeal, plaintiff argues that the trial court erred in (1) granting defendants' motion for directed verdict on her informed consent claim, (2) conditioning plaintiff's calling her expert live at trial on her payment of fees and costs to defendants, (3) allowing defendants to question a witness about whether syphilis could cause plaintiff's complaints of pain without a definitive diagnosis of syphilis, and (4) precluding plaintiff from cross-examining Stevens on certain publicly available literature related to the procedure performed on plaintiff. For the reasons that follow, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 The record in this matter is voluminous, and only small portions of it are relevant to the issues raised on appeal. Accordingly, we will recite here only those

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facts necessary to an understanding of the factual background of this case. Any additional facts necessary to the disposition of the issues raised on appeal will be discussed in our analysis.

         ¶ 4 In 2004, following complaints of right knee pain, plaintiff was diagnosed with a 17-degree valgus deformity of her right femur, which meant that her femur was misaligned, such that plaintiff was "knock-kneed." Her condition resulted in an excess amount of pressure on the outside of plaintiff's knee. At that time, plaintiff also displayed signs of arthritis in her right knee. To correct the valgus deformity and alleviate plaintiff's pain, Stevens, an orthopedic surgeon who practiced with CAM, performed a right distal femoral open wedge osteotomy, a procedure in which the surgeon cuts part way through the femur to create a wedge opening, allowing the femur to be realigned. Once the proper alignment is achieved, the surgeon secures the femur with hardware and fills the opening with a bone graft to promote healing between the two ends of the femur. In plaintiff's surgery, Stevens intended to use a Puddu plate to secure plaintiff's femur. Because, however, the medial cortex— the side of plaintiff's femur opposite the wedge opening— fractured during the procedure, Stevens had to switch his plans and instead used a condylar blade plate to secure the two sections of plaintiff's femur. Stevens testified at trial that he did not place the condylar blade plate in a position parallel to plaintiff's knee because doing so would have placed her knee in a 5-degree valgus position and would not have achieved the goal of taking the pressure off plaintiff's outside knee. Instead, he installed the condylar plate obliquely, so as to achieve the desired degree of correction. He also testified that at the completion of the procedure, plaintiff's femur was properly aligned to shift plaintiff's weight bearing load more to the inside of her knee.

         ¶ 5 Sometime after the procedure, plaintiff was diagnosed as having a nonunion of the femur. In other words, the two sections of plaintiff's femur did not heal together. To correct this condition, plaintiff underwent a revision surgery performed by Dr. Rajeev Garapati. Garapati testified in his evidence deposition that when he first saw plaintiff in 2005, she had a significant varus deformity in her right leg, i.e., she was now bow-legged on the right. Garapati testified that he did not know the condition of plaintiff's leg immediately following the procedure performed by Stevens, did not know the exact cause of plaintiff's varus deformity, and the varus position of plaintiff's knee could have been a result of the nonunion. He also testified that both nonunions and fractures of the medial cortex are known risks of the procedure performed by Stevens and can and do occur in the absence of negligence on the part of the surgeon. To correct the varus deformity and nonunion, Garapati performed a revision surgery on plaintiff, which included removing the old hardware, placing a new bone graft, realigning the femur, and installing new hardware.

         ¶ 6 Eventually, plaintiff healed, although she testified that she continues to experience pain and functional limitations and is only able to work with special accommodations.

         ¶ 7 Dr. Raymond Vance testified via evidence deposition as an expert on behalf of plaintiff. He testified that Stevens deviated from the applicable standards of care in a number of ways. First, Stevens should not have recommended that plaintiff undergo the surgery rather than trying more conservative treatment methods first. He also testified that it was a deviation from the standard of care for Stevens to install the condylar blade plate in an oblique position rather than a parallel position and

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that Stevens's oblique installation resulted in a 12-degree varus deformity of plaintiff's right knee, the nonunion, and plaintiff's ongoing pain and functional limitations. Vance agreed, however, that had Stevens installed the condylar blade plate in a parallel position, it would have placed plaintiff's knee in a 5-degree valgus position and that if Stevens wanted to place the knee in a slight varus position, he would have to install the plate obliquely. Vance also acknowledged that the fracture of the medial cortex was not a deviation from the standard of care on the part of Stevens because such a complication could occur with any surgeon performing the procedure.

         ¶ 8 Dr. Sherwin Ho testified at trial as an expert on behalf of defendants. He testified in relevant part that nonunions are known risks of the procedure performed by Stevens, Stevens had nothing to do with the nonunion occurring, and postoperative images following Stevens's procedure showed that the surgery performed by Stevens was a success. He also testified that fractures of the medial cortex happen in about half of such cases and that surgeons typically anticipate and plan for such complications. According to Ho, Stevens complied with the relevant standard of care in offering and performing the surgery.

         ¶ 9 In addition to alleging that Stevens negligently performed the right distal femoral open wedge osteotomy on her, plaintiff also alleged that Stevens failed to obtain plaintiff's informed consent before performing the procedure in that Stevens failed to advise her of all of the risks and benefits of the procedure and failed to advise her of alternative conservative treatment options. With respect to that claim, plaintiff presented the following evidence at trial.

         ¶ 10 Plaintiff testified that prior to the surgery, Stevens advised her that the procedure included risks of bleeding, infection, pain, or discomfort. She could not recall anything else that Stevens might have said about the risks of the surgery, although she later testified that Stevens never informed her that there was a risk that the medial cortex could fracture during the procedure. She admitted that there might have been other things that Stevens talked with her about that she did not remember.

         ¶ 11 Vance testified that it was a deviation from the applicable standard of care for Stevens to recommend the surgical procedure rather than other conservative treatments, such as physical therapy, medications, or activity modification. He also testified that in order to obtain informed consent from plaintiff, Stevens was required to inform plaintiff that the osteotomy included the risks of nonunion, failure to heal, and fracture of the medial cortex. Vance acknowledged that he was not present for any discussions between Stevens and plaintiff or between Dr. John Theodoropoulos, who assisted Stevens in plaintiff's surgery, and plaintiff. Thus, Vance could not say whether Stevens or Theodoropoulos advised plaintiff of the risks of the osteotomy. He also testified that he had no reason to believe that Stevens would not have obtained proper informed consent from plaintiff.

         ¶ 12 After plaintiff rested, defendants moved for a directed verdict on plaintiff's informed consent claim. Defendants argued that plaintiff failed to present any expert evidence that Stevens deviated from the relevant standard of care in obtaining informed consent, plaintiff did not present any evidence that she would not have consented to the procedure had all of the risks been properly disclosed, and Vance testified that plaintiff's claimed injuries

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were caused by the misalignment of the condylar blade plate, not that they were caused by the nonunion or medial cortex fracture. The trial court reserved ruling on the motion, permitting plaintiff's counsel to review the transcript of plaintiff's testimony and defendants to present the testimony of Stevens on the issue of informed consent.

         ¶ 13 With respect to informed consent, Stevens testified that he did, in fact, inform plaintiff of the risk of nonhealing of the bone. He would not, however, have advised her of specific complications that might occur during the procedure if he could fix them during the procedure, such as a fracture of the medial cortex. He also testified that he discussed alternative conservative treatments with plaintiff but that plaintiff advised him that she did not want the pain and functional limitations to progress. Stevens advised her that without surgery, her arthritis and pain would continue to progress over time.

         ¶ 14 Theodoropoulos also testified that he would have advised plaintiff of the risk of nonunion, although he did not have any specific recollection of doing so. Ho testified that it was his opinion that plaintiff received informed consent. He based this opinion on a letter Theodoropoulos sent to plaintiff's primary care physician in which Theodoropoulos stated that he advised plaintiff of the risks of the osteotomy, including damage to nerves, arteries, vessels, and tendons; bleeding; infection; other medical problems; death; and possibility that plaintiff's condition may not improve and may get worse. Ho also based his opinion on the consent form that plaintiff signed on the day of the surgery, which stated that plaintiff had been informed of the nature and purpose of the procedure, the medically significant risks and consequences of the procedure, and alternative procedures.

         ¶ 15 After defendants rested, they renewed their motion for directed verdict. The trial court granted that motion, concluding that there was an abundance of evidence that plaintiff was advised of the risks of the procedure and no evidence that plaintiff would not have consented had she been advised of the risks of which she claims she was not advised.

         ¶ 16 The jury ultimately entered a verdict in favor of defendants and against plaintiff. Following an unsuccessful motion for a ...

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