Bosco v. Janowitz

• Decision Date: 10 February 2009
• Docket Number: No. 1-07-0617.,1-07-0617.
• Citation: 903 N.E.2d 756
• Parties: Pamela BOSCO, Individually and as Executor of the Estate of Peter Bosco, Deceased, Plaintiff-Appellant, v. Robert JANOWITZ; Westmont Family Practice, S.C.; Gregorio Orbeta, Jr.; and Gregorio R. Orbeta, Jr., M.D., S.C., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

903 N.E.2d 756

Pamela BOSCO, Individually and as Executor of the Estate of Peter Bosco, Deceased, Plaintiff-Appellant, v. Robert JANOWITZ; Westmont Family Practice, S.C.; Gregorio Orbeta, Jr.; and Gregorio R. Orbeta, Jr., M.D., S.C., Defendants-Appellees.

No. 1-07-0617.

Appellate Court of Illinois, First District, Second Division.

February 10, 2009.

Law Office of Kenneth C. Chessick, M.D., Schaumburg (Kenneth C. Chessick, of Counsel); and Novoselsky Law Offices, Chicago (David A. Novoselsky and Leslie J. Rosen, of Counsel), for Appellant.

Pretzel & Stouffer Chartered, Chicago (Robert Marc Chemers, Edward H. Nielsen, Belle L. Katubig and Scott L. Howie, of Counsel), for (Robert Janowitz, M.D. and Westmont Family Practice, S.C.) Appellees.

Bollinger, Ruberry & Garvey, Chicago (Scott C. Bentivenga, James E. Abbott, Michael S. Haggerty and Krista R. Frick, of Counsel), for (Gregorio Orbeta, Jr., M.D. and Gregorio Orbeta, Jr., M.D., S.C.) Appellees.

Justice CUNNINGHAM delivered the opinion of the court:

Following a jury verdict in favor of the defendants in a medical malpractice case, the plaintiff filed a posttrial motion for judgment notwithstanding the verdict and a request for a new trial on all issues. On February 27, 2008, the circuit court denied the plaintiff's motion, holding that the jury's decision was fully supported by the evidence. On appeal, the plaintiff argues that: (1) a judgment notwithstanding the verdict and a new trial on all issues was warranted; (2) the trial court abused its discretion in admitting irrelevant and highly prejudicial evidence against the plaintiff and (3) the trial court abused its discretion in admitting evidence of other physicians' negligence, and in instructing the jury with the long forms of the Illinois Pattern Jury Instructions, Civil, Nos. 12.04 and 12.05 (2000). For the following reasons, we affirm.

BACKGROUND

Peter Bosco (Bosco) battled a series of long, complicated gastrointestinal illnesses before succumbing to colon cancer on May 17, 2002, at the age of 37. In March 1993, Bosco began experiencing symptoms of cramps, diarrhea and abdominal pain. He visited his family physician, Dr. Robert Janowitz (Dr. Janowitz), at Westmont Family Practice, S.C. Dr. Janowitz conducted a stool sample test, which tested negative for infection, and prescribed medicine to Bosco to relieve the symptoms. Within two days of this visit, Bosco reported that his symptoms had resolved. However, on May 13, 1993, he returned to Dr. Janowitz, complaining of the same symptoms, along with a fever and a feeling of weakness. Dr. Janowitz sent Bosco to the emergency department of a hospital (ER) for intravenous (IV) fluids to prevent further dehydration. Blood tests revealed a low hemoglobin level of 9.4. Bosco was informed of these test results.

On June 14, 1993, Bosco returned to Dr. Janowitz for more blood tests. Bosco reported no pain or symptoms. However, the results of his blood tests showed an increased hemoglobin level of 11.1, but Dr. Janowitz still considered Bosco to be anemic. Three days later, Bosco reported "vague epigastric fullness" to Dr. Janowitz, who then ordered an upper gastro-intestinal (G.I.) series test and an ultrasound. Dr. Janowitz advised both Bosco and his wife, Pam Bosco, of the normal test results on June 23, 1993, and instructed Bosco to return to Dr. Janowitz's office for a follow-up on July 12, 1993.

On June 28, 1993, Bosco reported to Dr. Janowitz that his G.I. symptoms had returned and had been recurring for the past three days. In response, Dr. Janowitz referred him to see Dr. Philip Sweeney (Dr. Sweeney), a gastroenterologist.

On June 29, 1993, Bosco made his first visit to Dr. Sweeney, where he presented with symptoms of diarrhea, abdominal cramps, weight loss and anemia. Dr. Sweeney performed a full physical examination, which revealed blood in the stool. A diagnostic colonoscopy was scheduled for the following day.

Dr. Sweeney performed the colonoscopy on Bosco the next day, during which a single polyp was identified and removed from Bosco's ascending colon. The removed polyp was diagnosed as a tubular adenoma, a specific type of benign polyp. The results of the colonoscopy enabled Dr. Sweeney to diagnose Bosco with ulcerative colitis, a chronic condition that required lifelong management. Subsequently, Dr. Sweeney prescribed steroid medications to reduce inflammation and iron pills for anemia. Bosco was instructed to return to Dr. Sweeney within two to three weeks.

After Dr. Sweeney's diagnosis, Bosco sought a second opinion at the Mayo Clinic in Minnesota. The Mayo Clinic confirmed that Bosco had ulcerative colitis, but did not advise Bosco that a cancer surveillance plan was necessary at that time.

In August 1993, Bosco was hospitalized for two days as a result of an ulcerative colitis flare-up, experiencing symptoms of recurrent vomiting and upper abdominal pain. Both Dr. Janowitz and Dr. Sweeney examined Bosco at the hospital. Dr. Janowitz conducted a basic physical examination on Bosco, while Dr. Sweeney ordered an "upper GI exam with a small bowel follow through." Because Bosco believed that some of his pain stemmed from an infection secondary to his work environment, he did not consent to the procedure that Dr. Sweeney recommended.

A month after his discharge from the hospital, Bosco called Dr. Janowitz to report that he was feeling better and that he would follow up with Dr. Sweeney. Bosco also contacted Dr. Sweeney by the telephone in October 1993 to say that he was feeling well, at which time Dr. Sweeney instructed him to follow up in the office in six to eight weeks. However, on November 5, 1993, Bosco experienced another flare-up, and as a result, Dr. Sweeney increased his medication and instructed Bosco to return in three weeks for reevaluation. Bosco never returned to Dr. Sweeney.

In 1995, due to changes in his health insurance, Bosco switched his primary care physician from Dr. Janowitz to Dr. Edward McMenamin (Dr. McMenamin). On October 3, 1995, Bosco was again hospitalized with complaints of diarrhea and skin rash. Dr. McMenamin performed a history and physical examination and blood tests, which revealed that Bosco's hemoglobin level was at a severely low level of 5.5. Dr. McMenamin requested a consultation with Dr. Gregorio Orbeta (Dr. Orbeta), a gastroenterologist.

During the October 3, 1995 hospitalization, Dr. Orbeta examined Bosco, performed a flexible sigmoidoscopy examination, and prescribed oral medications to alleviate his symptoms. Dr. Orbeta's plan was to also perform a diagnostic colonoscopy examination, but to do so at a later date when Bosco was no longer bleeding, since the colon was more susceptible to perforation during periods of flare-ups. Dr. Orbeta advised Bosco of the symptoms, medications, possible complications and the necessity for Bosco to be examined once a year.

On October 13, 1995, Bosco made a follow-up visit to Dr. Orbeta's office. Subsequently, on October 20, 1995, Dr. Orbeta performed the scheduled diagnostic colonoscopy examination. During the procedure, Dr. Orbeta took photographs and three biopsies of the transverse colon, but did not find any polyps. Dr. Orbeta noted that the "entire colonic mucosa showed edema, hyperemia, multiple ulcerations, and multiple pseudopolyp formations." His findings were consistent with ulcerative colitis, with no evidence of malignancy. Dr. Orbeta reported these findings to Bosco by telephone on October 24, 1995, at which time Bosco reported that he was feeling better.

Sometime in 1996, Bosco changed his primary care physician from Dr. McMenamin back to Dr. Janowitz, but kept Dr. Orbeta as his gastrointestinal specialist. On November 14, 1996, Bosco treated with Dr. Orbeta and reported that he was doing well and not experiencing any pain. The ulcerative colitis was under control with medication.

On June 7, 1997, Bosco visited Dr. Janowitz's office for urinary problems, which were resolved shortly after the visit. However, on June 30, 1997, Bosco called Dr. Orbeta and complained of blood in his semen, although his ulcerative colitis was otherwise asymptomatic. Dr. Orbeta referred Bosco to a urologist.

Bosco did not treat with Dr. Orbeta again until May 8, 1998, at which time he reported that the ulcerative colitis was still asymptomatic and under control with medication. Dr. Orbeta noted that Bosco had a "normal exam" and "no bleeding."

On September 10, 1998, Bosco made a final visit to Dr. Janowitz's office for the purpose of having a "pre-adoption" physical because he and his wife wanted to adopt a child. At this visit, Bosco informed Dr. Janowitz that his condition was under control and that he was asymptomatic.

On May 17, 1999, Bosco visited Dr. Orbeta's office for the last time. He reported that he had no bleeding, occasional cramps, and was otherwise asymptomatic. Dr. Orbeta did a complete blood analysis as one had not been done since 1995. A few days later, Dr. Orbeta telephoned Bosco about the results of the blood test and informed him of a low hemoglobin. Dr. Orbeta instructed Bosco to take iron pills and to return to the office for a follow-up blood evaluation in one month. Bosco went to Dr. Orbeta's office on July 8, 1999, to pick up an order for a repeat blood test, but he never returned to Dr. Orbeta for the follow-up visit, despite instructions to do so.

Bosco sought no treatment from any physician from May 17, 1999, until October 1999, when he visited another gastroenterologist, Dr. Joseph Brasco (Dr. Brasco), for a second opinion regarding his condition. On October 19, 1999, Bosco was admitted to the ER at Northwest Community Hospital with complaints of abdominal pain. Dr. Brasco saw Bosco at the hospital, where several X-rays were taken. Shortly thereafter, Dr. Brasco discharged Bosco from the hospital.

On October 25, 1999, Bosco was readmitted to the ER for severe abdominal pain. Dr. Brasco then performed a colonoscopy and...