Barenbrugge v. Rich

• Decision Date: 18 March 1986
• Docket Number: No. 85-0260,85-0260
• Citation: 96 Ill.Dec. 163,141 Ill.App.3d 1046,490 N.E.2d 1368
• Parties: , 96 Ill.Dec. 163 Craig BARENBRUGGE, Special Administrator of the Estate of Renee Barenbrugge, Deceased, Plaintiff-Appellee, v. Nancy RICH, M.D., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1368

490 N.E.2d 1368

141 Ill.App.3d 1046, 96 Ill.Dec. 163

Craig BARENBRUGGE, Special Administrator of the Estate of Renee Barenbrugge, Deceased, Plaintiff-Appellee, v. Nancy RICH, M.D., Defendant-Appellant.

No. 85-0260.

Appellate Court of Illinois First District, Second Division.

March 18, 1986.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Anthony J. Alholm and Stephen R. Swofford, of counsel), for defendant-appellant.

Albert F. Hofeld, Howard Schaffner, Hofeld & Schaffner, Chicago, for plaintiff-appellee.

Justice HARTMAN delivered the opinion of the court:

Defendant doctor appeals the judgment entered against her after a jury trial in a medical malpractice suit which alleged that she and another physician, not involved in this appeal, negligently failed to diagnose breast cancer while it was still treatable. On appeal we are asked to decide whether: (1) the circuit court erred in refusing to transfer venue; and (2) a new trial should be ordered because: (a) the circuit court failed to issue instructions on contributory negligence; (b) contrary to indications at trial, two of plaintiff's expert witnesses received compensation for their testimony; (c) the arousal of the jury's passion and prejudice was evident from its verdict.

Decedent, Renee Barenbrugge, age 28, died during the trial and her husband, Craig, was appointed special administrator of her estate. For purposes of simplicity, we shall apply the term "plaintiff" to Renee.

Evidence in the record as to the onset and history of plaintiff's disease is conflicting; however, there is evidence upon which the jury could have based its verdict that in November 1978, the then 22-year old plaintiff visited defendant, Dr. Nancy Rich, an obstetrician-gynecologist, for the first time for a routine premarital examination. Plaintiff then had no complaints with respect to her breasts. Her examination was normal. She returned to defendant on February 27, 1979 and complained of pain and a lump in her left breast. Dr. Rich testified both that she " * * * felt a lump of breast tissue * * * " and that "[i]t was normal breast tissue." And again, "I did not feel a mass. I felt a lump of breast tissue." Still further, " * * * I decided it was absolutely normal in every way." She described this condition as normal thickening of tissue, although at trial two experts asserted that thickening is not normal. Plaintiff complained that she was experiencing breast pain at this time. Dr. Rich's records did not contain this complaint. Dr. Lawrence Gunn, a surgeon to whom Dr. Rich later referred plaintiff, recorded on January 31, 1980 that plaintiff experienced breast pain for one year, which would encompass the February 27, 1979 visit with Dr. Rich.

On July 16, 1979, plaintiff returned to Dr. Rich for a regular examination and for birth control pills. She asserted that she complained of a lump in her left breast and pain on this visit; Dr. Rich's record indicates no such complaint. Plaintiff's next visit was again six months later on January 17, 1980. Plaintiff expressed concern about her breast at this time. The records of Dr. Rich for that visit contain no description of plaintiff's complaints, except that she was "very worried." The record does show an entry "probable fibrocystic." Dr. Rich then referred plaintiff to Dr. Gunn for a second opinion regarding plaintiff's breasts. Plaintiff saw Dr. Gunn on January 31, 1980 and complained of breast pain. There is a question as to whether she complained of other irregularities. Dr. Gunn observed that plaintiff's left breast, including the areola, was 25% larger than the right, and that the veins in the left breast were prominent. No mammogram was ever performed on or ordered for plaintiff by either defendant or Dr. Gunn.

On May 31, 1980, plaintiff called defendant complaining of severe abdominal pain. They met at Hinsdale Hospital and since plaintiff was also complaining of the lump and breast pain, defendant performed a breast exam. Dr. Rich found irregularities which led her to believe that plaintiff's breast was malignant. Two days later, on June 2, 1980, plaintiff saw Dr. Gunn who performed a needle biopsy in the area of the lump, which detected cancer.

Plaintiff was admitted to the hospital and on June 3, 1980, Dr. Gunn performed a surgical biopsy to determine the extent of the disease. A tissue sample taken from the supra-clavicular area was sent to pathologists for analysis. Later that date a report on frozen tissue was sent to Dr. Gunn indicating no malignancy. He reported to plaintiff that the node he had felt was not cancerous and that a mastectomy would be performed. The next day Dr. Gunn performed a radical mastectomy on plaintiff, a decision made without the benefit of the pathologists' report on a permanent section of tissue which did indicate the advance of cancer. After the mastectomy plaintiff underwent radiation and chemotherapy. She later underwent further surgery performed by other physicians at other institutions.

On April 20, 1981, plaintiff filed a medical malpractice action against Drs. Rich and Gunn in Cook County circuit court, alleging negligent failure to diagnose her cancer. Numerous amendments were made to her complaint. Other defendants were joined, including certain individual pathologists and their professional corporation, DuPage Pathology Associates ("DPA").

The cause ultimately went to trial on September 26, 1984. Plaintiff's expert testified that her cancer could have been detected by mammography 1 1/2 years before it was removed and, if it had been detected in February 1979, her chances of cure would have been 95%, but with the passage of time, survival chances decreased until, by the time of actual diagnosis, her prognosis was very grave. Plaintiff died while the trial was in progress on October 13, 1984. A settlement was reached with Dr. Gunn in the amount of $900,000 and with DPA for $500. The settlement with DPA was assertedly based upon "either a $50,000 loan agreement or, if a settlement or verdict in excess of this amount was achieved against any defendant then a payment of $500." The jury found Dr. Rich liable and the circuit court entered judgment in the amount of $2,099,500, from which this appeal proceeds.

I.

With respect to the venue issue, we are limited to an examination of the record to determine whether the circuit court abused its discretion in denying defendant's motion to transfer venue from Cook to Du Page County (Stambaugh v. International Harvester Co. (1984), 102 Ill.2d 250, 80 Ill.Dec. 28, 464 N.E.2d 1011) and we must review the procedural facts in greater detail than is ordinarily required. Plaintiff's original complaint, filed on April 20, 1981, named Drs. Rich and Gunn as defendants, both of whom were Du Page County residents. In her first amended complaint, plaintiff named Eli Lilly and Company ("Eli Lilly"), a Cook County corporation, as a defendant alleging that an Eli Lilly product had caused her injury, thus providing the only basis for fixing venue in Cook County. Ill.Rev.Stat.1983, ch. 110, par. 2-101.

Dr. Rich filed a motion to transfer venue on the ground that Eli Lilly was not joined in good faith. An order was entered on January 22, 1982 granting the motion and transferring the cause to Du Page County; however, this order was vacated on February 16, 1982 on plaintiff's motion alleging that the transfer order had been entered ex parte. Dr. Rich then filed a motion with supporting memorandum to sever Eli Lilly and transfer the cause against her and Dr. Gunn to Du Page County. This motion was granted by the circuit court on May 25, 1982 and provided for transfer of the cause against the doctors to Du Page County effective June 9, 1982.

Before the effective transfer date, plaintiff filed an emergency motion seeking to join additional defendants, preserve certain evidence and to vacate the transfer order of May 25, 1982. Among other defendants, plaintiff sought to add individual pathologists, Drs. Reuben Ramkissoon, Clifford Reiber and Lucito Gamboa, and their professional corporation DPA. DPA had a registered agent in Cook County. Dr. Gamboa was the pathologist who performed diagnostic tests at Dr. Gunn's request. The circuit court granted plaintiff's emergency motion to add defendants and preserve the evidence. Two months later, on August 2, 1982, plaintiff voluntarily dismissed Eli Lilly. On September 2, 1982, the circuit court granted plaintiff's motion to vacate the May 25 transfer of venue and simultaneously denied motions filed by the newly added defendants for transfer.

By June of 1984, the causes of action against the newly added defendants other than the pathologists and their corporation were either dismissed on their motion or on plaintiff's motion. Remaining in the case as defendants were Drs. Rich and Gunn, the individual pathologists, and their corporation. On July 9, 1984, Dr. Rich's petition for leave to file another motion for transfer of venue was denied.

Voir dire of the jury was conducted on September 26 and 27, 1984. On September 27, 1984, an order was entered by the circuit court stating that on plaintiff's motion one of the pathologists and DPA were dismissed. The next day, opening statements were made and plaintiff testified. On October 1, 1984, plaintiff moved to vacate the dismissal with respect to DPA on the ground that the order was drawn by opposing counsel and it was through inadvertence that DPA was included in the order. The circuit court vacated the order and accepted plaintiff's explanation that dismissal of DPA was a mistake. On the basis of DPA's residence, the circuit court found venue proper in Cook County. Thereafter, the trial proceeded to verdict.

Defendant maintains that the foregoing history demonstrates that plaintiff did not join either Eli Lilly or DPA in good faith and with probable cause of obtaining judgment (Ill.Rev.Stat.1983, ch. 110, par. 2-101) and that not until...