Arient v. Alhaj-Hussein

• Decision Date: 01 December 2017
• Docket Number: No. 1–16–2369,1–16–2369
• Citation: 91 N.E.3d 513,2017 IL App (1st) 162369
• Parties: Terry ARIENT, Independent Executor of the Estate of Kathy Arient, deceased, Plaintiff–Appellee, v. Yasser ALHAJ–HUSSEIN, M.D., and Illinois Anesthesia and Pain Associates, S.C., Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 162369

91 N.E.3d 513

Terry ARIENT, Independent Executor of the Estate of Kathy Arient, deceased, Plaintiff–Appellee,

v.Yasser ALHAJ–HUSSEIN, M.D., and Illinois Anesthesia and Pain Associates, S.C., Defendants–Appellants.

No. 1–16–2369

Appellate Court of Illinois, First District, SIXTH DIVISION.

Opinion filed: December 1, 2017

J. Timothy Eaton and Jonathan B. Amarilio, of Taft Stettinius & Hollister LLP, of Chicago, for appellants.

Robert J. Napleton and Bradley Z. Schulman, of Motherway & Napleton, of Chicago, and Lynn D. Dowd, of Naperville, for appellee.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The defendants, Dr. Yasser Alhaj–Hussein (Dr. Hussein) and Illinois Anesthesia and Pain Associates, S.C. (IAPA), appeal from a $7,884,761.76 judgment entered against them in this medical negligence based action, and the denial of their posttrial motion. In urging that the judgment be reversed and the case remanded for a new trial, the defendants argue, inter alia , that the trial court erred in: (1) denying their motion in limine to bar the plaintiff from introducing evidence of Dr. Hussein's alleged lack of privileges to perform a celiac plexus block procedure on Kathy Arient at the Orland Park Surgical Center and overruling their objection to questions and argument addressed to the issue; (2) overruling their objection to a legal opinion rendered by one of the plaintiff's medical experts asserting a statutory requirement that a physician secure privileges prior to performing an operation at an ambulatory surgical center such as the Orland Park Surgical Center; and (3) granting the plaintiff's motion in limine which barred them from introducing evidence of, or making any reference to, Kathy Arient's smoking history. For the reasons which follow, we affirm the judgment of the trial court.

¶ 2 On October 5, 2012, Dr. Hussein performed a celiac plexus block procedure on Kathy Arient at the Orland Park Surgical Center. Following the procedure, Kathy Arient complained of numbness in her legs, and she was taken by ambulance to St. Joseph's Hospital where it was determined that she had experienced a vasospasm, resulting in paraplegia.

¶ 3 On December 19, 2012, Kathy Arient and her husband, Terry Arient, filed a two-count complaint against Dr. Hussein and other defendants in the circuit court of Cook County. Count I was a medical negligence action on behalf of Kathy Arient, and Count II was a loss of consortium claim by Terry Arient. Both counts charged negligence on the part of Dr. Hussein in the performance of the celiac plexus block procedure.

¶ 4 Kathy Arient died on June 9, 2014. Her death certificate listed stroke as the cause of death. Her death was spread of record on July 7, 2014, and a Second Amended Complaint was filed with leave of court on August 26, 2014. Terry Arient, as independent executor of the estate of Kathy Arient, deceased (hereinafter referred to as the plaintiff), was substituted as the plaintiff.

¶ 5 The plaintiff's complaint was further amended with the final version being a four-count Fourth Amended Complaint filed on July 20, 2015. Count I was a wrongful death action against Dr. Hussein and IAPA, his employer (hereinafter collectively referred to as the defendants), predicated on Dr. Hussein's alleged medical negligence in the performance of the celiac plexus block procedure, resulting in the death of Kathy Arient. Count II was a survival action against Dr. Hussein and IAPA, seeking recovery for the damages sustained by Kathy Arient prior to her death. Count III was a wrongful death action against Orland Park Surgical Center, LLC, charging institutional negligence resulting in the death of Kathy Arient. Count IV was a survival action against Orland Park Surgical Center, LLC, also charging institutional negligence. On December 18, 2015, the trial court entered an order granting Orland Park Surgical Center, LLC's motion to dismiss Counts III and IV. No appeal has been taken from that order, and Orland Park Surgical Center, LLC is not a party to this appeal.

¶ 6 The case proceeded against Dr. Hussein and IAPA on Counts I and II of the Fourth Amended Complaint which charged that Dr. Hussein was negligent in one or more of the following respects:

"a. Performed a celiac plexus neurolytic block with absolute alcohol even though it was not indicated; or

b. Injected absolute alcohol into the artery Adamkiewicz or arteries that flow into the artery of Adamkiewicz; or

c. Failed to properly identify the landmarks during the performance of his [sic ] celiac plexus neurolytic block; or

d. Failed to recommend and/or attempt to treat Kathy Arient's abdominal pain using more conservative therapeutic modalities such as an intrathecal spinal catheter pump; or

e. Failed to take a radiographic image after injecting dye in her spinal cord as part of a test dose prior to performing the celiac plexus neurolytic block; or

f. Failed to properly manipulate/position the spinal needle inserted into her spinal canal; or

g. Failed to possess privileges to perform celiac plexus block surgical procedures at Orland Park Surgical Center, or

h. Failed to possess the privileges to perform celiac plexus block procedures at any Illinois hospital."

According to the complaint, one or more of Dr. Hussein's alleged negligent acts or omissions proximately resulted in the death of Kathy Arient (Count I) and the damages sustained by her prior to her death (Count II).

¶ 7 Before the trial commenced, both the plaintiff and the defendants filed motions in limine , two of which are relevant to the issues on appeal. The plaintiff's motion in limine No. 12 sought to bar the defendants from introducing evidence of, or making any reference to, Kathy Arient's smoking history. The defendants objected, arguing that her smoking was "central to every issue in the case," and germane to the issue of proximate cause. They also argued that evidence of Kathy Arient's smoking was relevant as it would help explain why Dr. Hussein elected to administer a celiac plexus block to alleviate her chronic abdominal pain rather than prescribe opiate-based medicine or implant an intrathecal pump. The defendants referenced deposition testimony from Dr. Timothy Lubenow in which he stated that opiate tolerance is "a characteristic of patients that * * * are chronic smokers" and that Kathy Arient's medical history suggests she was opiate tolerant. In addition, the defendants argued that Dr. Kenneth Candido testified during his deposition that patients such as Kathy Arient who suffer from Raynaud's disease are more susceptible to vasospasms if they continue using tobacco products. The defendants also filed a written offer of proof supported by excerpts from the deposition testimony of Drs. Candido, David Kuo, Lubenow and Stephen Minore in addition to excerpts from the deposition testimony of both Kathy Arient and Terry Arient. According to the offer of proof, Kathy Arient's past medical history and history of smoking was relevant to the issues of whether Dr. Hussein deviated from the standard of care by recommending a celiac plexus block as opposed to alternative treatment modalities and whether any alleged breach of the standard of care by Dr. Hussein proximately caused Kathy Arient's death. The trial court granted the plaintiff's motion in limine No. 12, and stated: "[e]very time smoking is invoked into a case it becomes a fatal issue to the plaintiff. * * * So it's highly prejudicial. I almost never let it in unless it's a lung cancer case relating to smoking itself. I mean, a direct correlation."

¶ 8 The defendants' motion in limine No. 6 sought to bar the plaintiff from introducing any evidence addressed to Dr. Hussein's credentialing or surgical privileges. They asserted that the plaintiff's claim of negligence based on Dr. Hussein's alleged failure to possess privileges to perform a celiac plexus neurolytic block procedure at Orland Park Surgical Center was erroneously based upon section 6(3)(b) of the Ambulatory Surgical Center Treatment Act (Act) ( 210 ILCS 5/6(3)(b) (West 2012). The defendants noted that, during his deposition, the plaintiff's expert witness, Dr. Minore, testified that Dr. Hussein deviated from the standard of care by failing to comply with section 6(3)(b) of the Act, and argued that section 6(3)(b) was irrelevant because it "doesn't impose a duty upon a physician to do frankly anything." In response, the plaintiff advised the court that the privilege issue was one of the "main theories of [his] case." Then, citing Dr. Minore's deposition, the plaintiff argued that Dr. Hussein was not "privilege[d] for neurolytic" and that Illinois law "says you have to have like privileges at an Illinois certified hospital to perform a procedure at an Illinois licensed surgical center." The plaintiff maintained that the link "between the outcome and that deviation is [that Dr. Hussein] shouldn't have done the surgery in the first place because he was not privileged to do so at this outpatient surgical center," adding that "[i]t is a central theory of our case. He shouldn't have been doing the surgery because he didn't have privileges at this institution to do this * * * procedure." In response to the arguments, the trial court stated "the law is the law. Let the jurors interpret it." The trial court went on to state that the accuracy of Dr. Minore's interpretation of the law was a matter for cross-examination. Thereafter, the court reserved ruling on the defendants' motion in limine No. 6.

¶ 9 Following jury selection, the parties gave their opening statements. The plaintiff's attorney told the jury:

"These procedures * * * are so dangerous Dr. Minore will tell you and can be so—and can cause this type of damage that the privileges associated have to specifically say * * * neurolytic blocks. That's what Dr. Minore is going to tell you, and you are going to see a credentialing file from [Orland Park Surgical Center] where the

...