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Tirado v. Slavin

Court of Appeals of Illinois, First District, Second Division

December 24, 2019

GLORIA TIRADO and CHRISTIAN TIRADO, Plenary Guardians of the Estate and Person of Gina Gutierrez, a Disabled Person, Plaintiffs-Appellants,
KONSTANTIN SLAVIN and GERALD OH, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County No. 17 L 7120 The Honorable James M. Varga, Judge Presiding.

          Attorneys for Appellant: Eugene Hardiman and Patricia A. Hardiman, of Law Offices of Eugene Hardiman, Ltd., of Chicago, for appellants.

          Attorneys for Appellee: Karen Kies DeGrand, Sherri M. Arrigo, and Timothy L. Hogan, for of Donohue Brown Mathewson & Smyth LLC, of Chicago, appellees.

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



         ¶ 1 Gloria Tirado and Christian Tirado, plenary guardians of Gina Gutierrez's estate and person, brought a medical malpractice action against Konstantin Slavin, M.D., and Gerald Oh, M.D., alleging that the physicians negligently performed Gutierrez's spinal surgery and were negligent in their follow-up care. In response, Dr. Slavin raised an affirmative defense of contributory negligence for Gutierrez's failure to seek treatment and follow medical advice. The case proceeded to jury trial, and during plaintiffs closing argument, Dr. Slavin and his counsel came to the aid of an ill juror. Plaintiffs moved for mistrial the following morning, which the trial court denied. The trial court entered judgment on a verdict for Dr. Slavin[1] and denied plaintiffs' motion for a new trial. For the reasons set forth below, we affirm the trial court's denial of plaintiffs' motion for mistrial and posttrial motion for a new trial.

         ¶ 2 BACKGROUND

         ¶ 3 On June 21, 2011, Dr. Slavin surgically removed a cyst from Gina Gutierrez's lower spine. Ordinarily, patients are kept overnight following this type of surgery; however, Gutierrez chose to stay an extra night and was discharged from the hospital on June 23, 2011. At that time, Gutierrez complained of throbbing headaches upon sitting and pain at the surgical site. A cerebral spinal fluid (CSF) leak is a potential complication associated with this type of surgical procedure, signs of which include positional headaches (those that worsen with movement), nausea, and vomiting. Gutierrez also suffered from chronic headaches and dizziness and had experienced nausea and vomiting after anesthesia in the past. At the time she was discharged, Dr. Slavin believed that Gutierrez's postsurgical headaches were consistent with her pattern of chronic headaches, because they did not worsen when she stood up or moved around.

         ¶ 4 On June 28, 2011, Gloria Tirado called the clinic and reported that Gutierrez was experiencing headaches and increased redness and swelling at the surgical site but did not have active drainage or fever. Dr. Slavin and nurse Filoramo testified that Tirado was advised to bring Gutierrez to the emergency room at that time. Tirado denied being advised to go to the emergency room. Tirado called the clinic again on July 1, 2011, and reported that Gutierrez continued to wake up with headaches and would like stronger medication for her pain. According to Dr. Slavin and nurse Filoramo, Dr. Slavin did not prescribe Gutierrez more medication at that time; rather, Tirado was advised to bring Gutierrez to the clinic if her symptoms did not subside. Tirado denied being advised to bring Gutierrez to the clinic. She testified that nurse Filoramo advised her to double up on medication.

         ¶ 5 Gutierrez was readmitted to the hospital on either July 5 or July 6, 2011[2], because she was suffering from severe postoperative headaches and fluid had been draining from her incision for about a week. She was diagnosed as having positional headaches and a CSF leak. Upon her readmission, blood tests showed no signs of infection and Gutierrez was not suffering from symptoms that would indicate meningitis, such as neck stiffness or nausea. In the afternoon or early evening of July 6, Dr. Slavin requested a magnetic resonance imaging (MRI) scan, which showed a collection of fluid outside of Gutierrez's spinal canal. On July 7, 2011, Dr. Slavin performed a blood patch procedure in an effort to reduce Gutierrez's headaches, and he took a sample of CSF, which again showed no signs of infection.

         ¶ 6 By the early morning of July 8, 2011, Gutierrez's condition had significantly deteriorated, and it was clear that the blood patch procedure had been unsuccessful. By 6 a.m. on July 8, her pain level was at 10 out of 10. Around 8 a.m., Gutierrez began experiencing neck pain and a fever, and her arm began shaking, so the nurse requested that Gutierrez undergo a computerized tomography (CT) scan. On her way back from the CT scan, Gutierrez became unresponsive. At or around that time, Dr. Slavin began treating Gutierrez with antibiotics for possible meningitis, and she was transferred to the intensive care unit for close monitoring. He also received results from a blood test performed earlier that morning, which indicated that Gutierrez was suffering from an infection. At approximately 2:50 p.m. on July 8, Gutierrez began turning blue, so she was intubated, and Dr. Slavin ordered medication to relieve possible swelling and inflammation in her brain.

         ¶ 7 Around 4:43 p.m. on July 8, Gutierrez was taken for a second CT scan, which showed severe brain swelling (cerebral edema) and herniation of the cerebellar tonsils.[3] Dr. Slavin attempted to reduce the brain swelling using medication and hypertonic saline. An MRI was performed around 9 p.m., which showed that Gutierrez had suffered a stroke at the bottom of her brain.

         ¶ 8 Just after midnight on July 9, 2011, Dr. Slavin performed a craniectomy to relieve the pressure in Gutierrez's skull and remove the cerebral tonsils. He also repaired the CSF leak in her lower back and noted that there was an infection, which likely caused meningitis.

         ¶ 9 At trial, plaintiffs presented testimony from John Merritt, M.D., regarding the extent of Gutierrez's injuries. Dr. Merritt testified that, as a result of cerebellar tonsil herniation and brain stem compression, Gutierrez suffers from partial paralysis in all four limbs, incontinence, inability to sit or bear weight, and involuntary muscle spasms. Among other conditions, she also has involuntary eye spasms, double vision, headaches, and mood swings. Gutierrez has impaired cognitive abilities and requires 24-hour skilled nursing care.

         ¶ 10 Plaintiffs also presented expert testimony from Mark Glickstein, M.D., and Robert Erickson, M.D. Dr. Glickstein testified that the CT scans taken between July 6 and July 8 showed a progression of brain swelling and cerebellar tonsil herniation. Dr. Erickson testified that Dr. Slavin deviated from the standard of care when he discharged Gutierrez after her first hospitalization, when he failed to treat her brain swelling on the morning of July 8, and when he failed to immediately treat Gutierrez at or around the time of the second CT scan around 4:43 p.m. on July 8.

         ¶ 11 During Dr. Erickson's testimony, defense counsel repeatedly objected to questions regarding the chronology of treatment Dr. Slavin should have followed after the 4:43 p.m. CT scan on July 8, arguing that Dr. Erickson's opinion on this issue was not disclosed in plaintiffs' Rule 213 disclosures. See Ill. S.Ct. R. 213 (eff. Jan. 1, 2018). The trial judge ultimately sustained the objections and allowed Dr. Erickson to testify that "[the] standard of care at that point would require a timely administration of effective medications such as Mannitol or hypertonic saline or it was mandatory that the patient be taken to the operating room for a surgical procedure with the same goal in mind; that is, to lower the intracranial pressure as soon as possible."

         ¶ 12 The defense presented testimony from Dr. Slavin and experts Dr. Nitu Saran, Dr. Susan Payvar, and Dr. Harel Deutsch. Dr. Slavin testified that he met the applicable standard of care in treating Gutierrez. Dr. Saran and Dr. Payvar testified regarding their interpretations of the CT scans conducted on July 6 and 8. Dr. Deutsch testified that Dr. Slavin met the standard of care and that Gutierrez's failure to come to the hospital sooner increased her risk of getting meningitis.

         ¶ 13 During plaintiffs' closing argument, a juror became ill. The judge announced "we will need a break," and instructed the ill juror to "go to the jury room." There is no contemporaneous record of the events that transpired; however, it is undisputed that the ill juror went to the jury room, followed by two other jurors, one of whom is a registered nurse. At some point, someone called from the jury room that the ill juror was not breathing. Defense counsel, who is also a nurse, stated in an affidavit that she "immediately proceeded to the jury to provide emergency assistance as necessary." Dr. Slavin followed behind her.

         ¶ 14 According to defense counsel, the following occurred when she entered the jury room: "the juror was lying on the floor, apparently unresponsive and pale in color. As I knelt to feel for a pulse, the juror awoke and was speaking and seemed to be stable. At that point, I believe the deputy instructed me to return to counsel table, which I did immediately. As I exited the jury room, I asked if there was a nurse present, and a female sitting on the benches in the back of the [courtroom] responded to assist the juror until paramedics arrived. After being examined by the paramedics, the juror declined further treatment." The ill juror requested to be discharged and was replaced by an alternate juror. Closing arguments resumed, and after being instructed on the law, the jurors retired to the jury room.

         ¶ 15 The next morning, plaintiffs' counsel presented an emergency motion for mistrial. The judge denied the motion, finding that the disruption during closing arguments was not prejudicial. The judge noted that "if anything happened, it was quick and human ***. And then [the jury] had a full night to cool off." The jurors were not questioned regarding what impact, if any, these events had on their ability to fairly decide the case.

         ¶ 16 The jury returned a verdict in favor of Dr. Slavin. The trial court denied plaintiffs' posttrial motion, and plaintiffs timely appealed.

         ¶ 17 ANALYSIS

         ¶ 18 Plaintiffs assert that they are entitled to a new trial, because (1) Dr. Slavin and his attorney assisting an ill juror during closing arguments warranted a mistrial, (2) the defense team had ex parte communications with jurors, (3) defense counsel violated an in limine order during closing arguments, (4) the trial court erroneously sustained defendant's objection to testimony by Dr. Erickson, (5) the trial court erroneously refused plaintiffs' jury instruction, and (6) the trial court erred in denying plaintiffs' motion for partial summary judgment regarding contributory negligence.

         ¶ 19 Defendant urges us to disregard the arguments set forth in plaintiffs' brief for failure to comply with Illinois Supreme Court Rule 341(h)(1)-(9) (eff. May 25, 2018). The purpose of these procedural rules is to require the parties to present clear and orderly arguments to the reviewing court so that we can properly understand, evaluate, and resolve the issues raised. Hall v. Naper Gold Hospitality LLC`, 2012 IL App (2d) 111151, ¶ 7. With the exception of plaintiffs' arguments regarding denial of summary judgment, the errors here are not so egregious as to hinder or preclude our review of the issues involved. Id. ¶ 12; Budzileni v. Department of Human Rights, 392 Ill.App.3d 422, 440 (2009).

         ¶ 20 Waiver

         ¶ 21 Relying on DiCosolo v. Janssen Pharmaceuticals, Inc., 2011 IL App (1st) 093562, and Bauer v. Timucci, 33 Ill.App.3d 1051 (1975), defendant first argues that plaintiffs' motion for mistrial was untimely and they failed to preserve their objections for review. Plaintiffs' counsel asserts that he sufficiently objected when defense counsel entered the jury room to assist the ill juror and that he timely presented plaintiffs' motion for mistrial. For the first time, in their reply brief and at oral arguments, plaintiffs also asserted that the court is required to take notice of irregularities in proceedings where the interests of an injured party with special needs are involved, despite a party's failure to object, relying on Leonard v. Pitstick Dairy Lake & Park, Inc., 202 Ill.App.3d 817 (1990), and Muscarel`lo v. Peterson, 20 Ill.2d 548 (1960). We do not disagree that disabled individuals are entitled to added protections under the law; however, plaintiffs' reliance on Leonard and Muscarello to support their argument is misplaced, as both courts specifically referred to protections for injured minors.

         ¶ 22 Nonetheless, we do not find DiCosolo and Bauer instructive on the issue of timeliness. In DiCosolo, the defendant failed to contemporaneously object but moved for mistrial following plaintiffs allegedly inflammatory closing argument. DiCosolo, 2011 IL App (1st) 093562, ΒΆΒΆ 62-63. We noted that a pattern of failing to take steps to allow any "corrective" action to be taken and later claiming reversible error on appeal should not be condoned; however, we did not decide the issue of waiver. Rather, we ...

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