Allen v. Sarah Bush Lincoln Health Ctr.

• Citation: 2021 IL App (4th) 200360,185 N.E.3d 815,452 Ill.Dec. 410
• Decision Date: 28 May 2021
• Docket Number: 4-20-0360
• Parties: Mark ALLEN, Plaintiff-Appellee, v. SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (4th) 200360

185 N.E.3d 815

452 Ill.Dec. 410

Mark ALLEN, Plaintiff-Appellee,

v.SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellant.

NO. 4-20-0360

Appellate Court of Illinois, Fourth District.

FILED May 28, 2021

Joshua G. Vincent and Kimberly A. Jansen, of Hinshaw & Culbertson LLP, of Chicago, for appellant.

Stephen D. Phillips, Terrence M. Quinn, Stephen J. Phillips, and Michael R. Bertucci, of Phillips Law Offices, of Chicago, for appellee.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 On September 21, 2012, plaintiff, Mark Allen, felt a "pop" in his neck and began to experience neck pain. That same day, Allen sought medical care from defendant, Sarah Bush Lincoln Health Center, at defendant's emergency department. Allen was given painkillers and discharged. The following day, September 22, 2012, Allen again went to defendant's emergency room and, again, was given painkillers and discharged.

¶ 2 On September 26, 2012, Allen's condition worsened. He went to defendant's emergency room where he was seen by Dr. Derek Stout, who ordered a computerized tomography

(CT) scan for Allen. That scan was read by Dr. Lynn Dale, a radiologist. Stout believed the problem to be a viral infection and discharged defendant. On September 27, Allen collapsed and was taken to defendant's emergency room via ambulance before being transferred to Carle Hospital (Carle) early the following morning. At Carle, a neurologist examined Allen and ordered a magnetic resonance imaging (MRI) scan, which revealed that Allen had a spinal epidural abscess. Allen had spinal surgery to drain the abscess but still suffered a spinal cord injury as a result of the abscess.

¶ 3 In September 2013, Allen sued defendant for negligence, alleging that defendant and defendant's agents had a duty to "possess and apply the knowledge, and use the skill and care ordinarily used by reasonably careful professionals in their respective fields," a claim commonly referred to as medical malpractice. In December 2019, the trial court conducted a jury trial on Allen's claim. The jury returned a $14 million verdict in favor of Allen.

¶ 4 Defendant appeals, arguing that (1) the trial court erred by instructing the jury that defendant's sole proximate cause defense could not be based on the act of a nonparty apparent agent, (2) the trial court erred by allowing an internist and an orthopedic surgeon to testify regarding the standard of care for an emergency room physician, and (3) defendant was deprived of a fair trial because of Allen's counsel's pervasive misconduct.

¶ 5 We disagree and affirm.

¶ 6 I. BACKGROUND

¶ 7 A. Pretrial Proceedings

¶ 8 In September 2013, Allen filed a complaint against defendant, alleging medical malpractice. The complaint alleged, in part, the following: (1) on September 21 and 22, 2012, Allen presented to defendant's emergency department complaining of pain in his shoulder and neck but was discharged on both days; (2) on September 26, 2012, at around 10:25 a.m., Allen presented again to defendant's emergency department where he was seen by Stout; (3) Stout was defendant's agent; (4) Allen's blood was tested at around 12:35 p.m. and showed he had an abnormally high white blood cell count; (5) during the September 26 visit, Allen complained of pain and weakness throughout his body, including from his neck down to his waist, as well as an intermittent fever; (6) around 2:36 p.m., defendant discharged Allen from the hospital; (7) Allen continued to deteriorate after leaving the hospital; and (8) defendant and its agents acted negligently in several ways that resulted in defendant's failing to diagnose and treat Allen's spinal epidural abscess

.

¶ 9 Extensive pretrial proceedings occurred, and then, in December 2019, the trial court conducted a final pretrial hearing at which the court stated, "The plaintiff is granted until the beginning of tomorrow to file an amended complaint, wherein Sarah Bush Lincoln Health Center would be the sole named defendant, along with its agents, apparent agents and employees." A few days later, Allen filed that complaint, alleging defendant was responsible for the negligence of its actual and apparent agents for failing to diagnose Allen's spinal epidural abscess

. This complaint did not identify any particular physician.

¶ 10 We note that at trial, Dr. Ali Raja, one of Allen's expert witnesses, provided a detailed description of a spinal epidural abscess

, explaining as follows:

"[T]here's a few key parts of this spine. The first is the spinal cord ***. What you can't see as clearly is that the spinal cord is actually covered by three different layers. Now the outside layer is called the dura. So when we talk about an epidural abscess

, in Latin, ‘epi’ means outside. And epidural is an abscess or pocket of pus outside of the spine but inside of the [spinal column]. Now, because of the fact the bone isn't going anywhere—it's really hard—when that epidural abscess starts growing, it can't move the bone. So what it does is, it actually starts moving and compressing the spine ***."

¶ 11 B. Defendant's Motion for Partial Summary Judgment

¶ 12 In March 2017, defendant filed a motion for partial summary judgment in which defendant asked the trial court to find that Dale was neither the actual nor apparent agent of defendant. In the motion, defendant noted, "Plaintiff's counsel has expressed concern that Defendants will ‘point blame ... at the radiologist (Dr. Dale) at Sarah Bush Lincoln who read the CT ....’ " (We note the Mayo Clinic describes a CT scan

as follows: "A computerized tomography (CT) scan combines a series of X-ray images taken from different angles around your body and uses computer processing to create cross-sectional images (slices) of the bones, blood vessels and soft tissues inside your body. CT scan images provide more-detailed information than plain X-rays do." CT Scan , Mayo Clinic, https://www.mayoclinic.org/tests-procedures/ct-scan /about/pac-20393675 (last visited May 25, 2021) [https://perma.cc/8LZW-UH2U].)

¶ 13 In November 2017, the trial court granted in part defendant's motion for partial summary judgment, stating that it found no genuine issue of material fact regarding actual agency because Dale was not an actual agent of the hospital. However, the court added that it found "there exists genuine issues of material fact as to the apparent agency between Dr. Dale and [defendant]."

¶ 14 C. The Trial

¶ 15 In November 2019, both parties filed motions in limine , including defendant's motion in limine to bar the standard of care opinions of Dr. Avi Bernstein and Dr. Jeff Kopin, whom defendant expected Allen to call as witnesses. Defendant argued that neither doctor met the foundational requirements for a standard of care opinion for emergency medicine. At a December 2019 hearing on those motions, the trial court noted that it had read Kopin's deposition, was "satisfied as to his ability," and denied defendant's motion as to Kopin. However, the court said, "I'm going to reserve as to Bernstein."

¶ 16 Later in December 2019, the trial court conducted the jury trial.

¶ 17 1. Allen's Motion for Leave to File a Second Amended Complaint

¶ 18 On the third day of trial, Allen moved for leave to file a second amended complaint that contained two counts. Count I, similar to the amended complaint, alleged that defendant's agents failed to timely diagnose Allen's abscess

on September 26, 2012, but added the allegation that defendant's agents "failed to properly read and interpret the CT scan." Count II was a cause of action against defendant through Dale, the radiologist who interpreted the CT scan, based upon Dale's status as an apparent agent of defendant.

¶ 19 The trial court denied Allen's motion for leave to file the second amended complaint because, in part, (1) Allen's original complaint was based solely on Stout's negligence and never alleged Dale made a mistake and (2) Allen made no attempt to amend his complaint two years earlier when Allen would have first known that defendant was likely to contend Dale's error was the sole proximate cause of Allen's injuries.

¶ 20 2. Allen's Evidence

¶ 21 a. Melissa Taylor

¶ 22 Melissa Taylor testified that she was Allen's ex-wife and the mother of his children. She met Allen in 2004, and they had two children, born in 2008 and 2010. She testified about her relationship with Allen and his relationship with their children. She described him as a very involved father. Allen used to be a professional drummer who toured worldwide with well-known bands, but during their marriage, he began to work as a landscaper.

¶ 23 Taylor testified that Allen began feeling severe pain on September 20, 2012.

He was moving furniture when he felt a "pop" in his neck. The pain persisted and woke him up around midnight, which caused them to go to defendant's emergency room at around 2 or 3 in the morning on September 21. At that visit, doctors gave Allen pain medication and sent him home.

¶ 24 On the next day, September 22, Allen still had severe neck pain even after taking the medication, and he had a fever. Taylor took Allen's temperature, and it read either 102 or 103 degrees, so they went back to defendant's emergency room. Defendant's doctors did some tests before giving Allen more pain medication and again sending him home. A doctor told Taylor that Allen had a pulled muscle, and the emergency room doctor thought the fever was from a viral infection.

¶ 25 On September 25, Allen began to notice a tingling pain from the middle of his neck down his spine and into his waist.

¶ 26 On September 26, 2012, Allen's condition had continued to deteriorate. He had severe neck pain, and the pain medication was not providing any relief. Taylor and Allen had difficulty controlling Allen's fever, and Allen began to experience tingling in his hands. Allen's shoulders felt like they were burning and were sensitive to the touch. Taylor said that Allen noticed a "weird tingling, burning...