Court of Appeals of Illinois, First District, Second Division
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.
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 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.
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, 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. 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
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
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
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.
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).
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, ¶¶ 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 ...