Brax v. Kennedy
| Decision Date | 06 December 2005 |
| Docket Number | No. 1-04-0444.,1-04-0444. |
| Citation | 841 N.E.2d 137 |
| Parties | Terri BRAX, as Parent and Next Friend of Jonathan Brax, a Minor, Plaintiff-Appellant, v. Michael KENNEDY, and Surgical Specialists, Ltd., a Corporation, Defendants-Appellees. |
| Court | Illinois Supreme Court |
Corboy & Demetrio, P.C., Chicago (Philip H. Corboy, Thomas A. Demetrio, Kenneth T. Lumb, of counsel), for Appellant.
Bollinger, Ruberry & Garvey, Chicago (Krista R. Frick, Robert M. Collins, of counsel), for Appellees.
On March 17, 1997, the plaintiff, Terri Brax, as the mother and next friend of minor Jonathon Brax (Jonathon), filed a complaint against the defendants, Michael Kennedy, M.D. (Dr. Kennedy), and Surgical Specialists, Ltd. The plaintiff's complaint alleged negligence against both defendants (counts I and III), and sought expenses from both defendants pursuant to section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2002)) (counts II and IV).
On March 5, 2003, a jury returned a verdict in favor of the defendants. The plaintiff appeals, arguing the trial court erred when it (1) instructed the jury using the long form of Illinois Pattern Jury Instructions, Civil, No. 12.05 (1995), (hereinafter IPI Civil (1995), No. 12.05); (2) failed to instruct the jury as to increased risk of future harm; and (3) allowed Dr. Kennedy to provide an undisclosed opinion in violation of Supreme Court Rule 213 (see Official Reports Advance Sheet No. 8 (April 17, 2002)). We affirm the judgment below.
On August 21, 1995, Jonathon began to feel sick with complaints of a sore throat and stomach pain. Over the course of the next 24 hours, he suffered from nausea and vomiting and his abdominal pain worsened.
On August 22, Mrs. Brax took Jonathon to Northwest Community Hospital's Urgent Care Center (Northwest) in Schaumburg, Illinois. At Northwest, Jonathon was treated by Dr. Bijan Farah, a board-certified emergency room physician. Dr. Farah diagnosed Jonathon with appendicitis1. Following his diagnosis, Dr. Farah spoke with Jonathon's pediatrician and coordinated with Dr. Kennedy to transfer Jonathon to the Hoffman Estates Medical Center (Hoffman Medical) for a surgical consultation.
At Hoffman Medical, Dr. Kennedy examined Jonathon in the emergency room. Dr. Kennedy found Jonathon had a soft abdomen, with tenderness in the right-lower quadrant, a sign of appendicitis. Dr. Kennedy also interviewed Mrs. Brax and Jonathon to get an accurate picture of Jonathon's symptoms. Dr. Kennedy was made aware Jonathon suffered from nausea, vomiting, severe abdominal pain, poor appetite, and fever. However, Jonathon's complaints of abdominal pain lessened while being examined by Dr. Kennedy. Tests revealed that Jonathon had an elevated white blood cell count of 180,000. In Dr. Kennedy's experience with appendicitis, the white blood cell count typically ranges from 10,000 to 15,000, while a more elevated white blood cell count did not provide for a specific diagnosis. Based on Jonathon's symptoms, Dr. Kennedy determined that Jonathon was suffering either from gastroenteritis2 or from acute appendicitis. Dr. Kennedy specifically noted that Jonathon's vomiting and nausea, prior to his abdominal pain, led him to lean toward a diagnosis of gastroenteritis.
To determine the cause of Jonathon's symptoms, Dr. Kennedy ordered a lower GI series3, which included a barium enema. In his deposition, Dr. Kennedy described a barium enema as a radiographic contrast study wherein contrast is introduced through a small rubber catheter inserted through the anus and into the rectum. The contrast goes around the entire length of the colon to the right side of the lower abdominal region, to the appendix. Dr. Kennedy testified that with a barium enema, there are three findings that suggest appendicitis: (1) non-visualization of the appendix, (2) inflammatory change on the cecum4, and (3) irritation and displacement of the surrounding small intestinal loops. Dr. Kennedy relied on the lower GI series to rule out appendicitis as the cause of Jonathon's abdominal pain.
Dr. Timothy Tully, a radiologist, interpreted the results of the barium enema in real time, as the contrast was filling Jonathon's abdomen, and in photographs taken of the process. Although the appendix could not be seen in the photographs taken of the barium study, Dr. Tully was able to visualize the entire appendix during the procedure. Dr. Kennedy received Dr. Tully's report, which indicated that the colon had filled with barium and the appendix appeared normal.
Based upon the normal barium study and Jonathon's decreased pain, Dr. Kennedy sent Jonathon home with his parents, who were advised to return with him to the hospital if his symptoms worsened.
On August 23, 1995, Mrs. Brax called Jonathon's pediatrician's office and spoke with Dr. Greg Gorski. Mrs. Brax told Dr. Gorski that Jonathon had developed diarrhea. Dr. Gorski spoke with Dr. Kennedy and then told Mrs. Brax that Jonathon had the flu.
On August 24, 1995, Mrs. Brax again called Jonathon's pediatrician's office, spoke with Dr. Lori Sielski, and took Jonathon in for a consultation. Dr. Sielski examined Jonathon and found he had abdominal pain and was toxic looking. Dr. Sielski believed Jonathon had a ruptured appendix and was suffering from dehydration. Dr. Sielski planned to admit Jonathon to the hospital, give him antibiotics, and get a surgical consultation. Dr. Sielski spoke with Dr. Kennedy, who agreed with the plan, examined Jonathon, found abdominal pain, and ordered a CT scan5 of Jonathon's abdomen, which conclusively demonstrated that Jonathon's appendix had ruptured.
Following the CT scan, Dr. Kennedy performed surgery on Jonathon. Jonathon did not recover as expected and was transferred to Children's Memorial Hospital, where he was seen by Dr. Grant Geissler. During surgery, Dr. Geissler discovered that Jonathon suffered from a malrotation6 of the bowel and had developed a mid-gut volvulus.7
On March 17, 1997, a medical malpractice complaint was filed against Dr. Kennedy and Surgical Specialists, Ltd., alleging that Dr. Kennedy had deviated from the standard of care in his treatment of Jonathon and that the alleged negligence was the proximate cause of Jonathon's injuries.
It was plaintiff's position at trial that Dr. Kennedy was negligent in not diagnosing Jonathon with appendicitis on August 22, 1995. Specifically, the plaintiff contended that Dr. Kennedy should have performed a CT scan on Jonathon on August 22, 1995. The plaintiff surmised that as a result of Dr. Kennedy's negligence, Jonathon developed a mid-gut volvulus and required subsequent surgeries.
During their opening statement, the defendants contended that (1) Jonathon's conditions met the criteria of both appendicitis and gastroenteritis; (2) Dr. Kennedy reasonably relied on the barium study, which showed no evidence of appendicitis; and (3) Jonathon's malrotation was a congenital condition, regarding which there was no testimony that Dr. Kennedy should have known about or suspected, and the malrotation caused the mid-gut volvulus, which later surgeries were required to repair.
The plaintiff's medical expert, Dr. Jon Morris, and the defendants' medical expert, Dr. Barry Newman, disagreed regarding whether Dr. Kennedy adhered to the standard of care by sending Jonathon home with his parents on August 22. There was also disagreement regarding whether Dr. Kennedy should have administered a barium enema on August 22 or should have ordered a CT scan. There was further disagreement regarding when Jonathon's appendix ruptured and whether that rupture contributed to Jonathon's mid-gut volvulus.
On March 5, 2003, the jury returned a general verdict in favor of Dr. Kennedy and Surgical Specialists, Ltd. The instant appeal followed. Additional pertinent facts will be discussed in the context of the issues raised in this appeal.
The plaintiff first complains that the trial court abused its discretion in refusing to give the short form of Illinois Pattern Jury Instructions, Civil, No. 12.04 (hereinafter IPI Civil (1995) No. 12.04). The plaintiff specifically contends, "[i]n the present case, there was evidence of several contributing causes to Jonathon's injuries, but there was no evidence of any outside person or thing that was the only cause." (Emphasis in original.) The plaintiff argues that there was evidence from which the jury could infer that Jonathon's parents contributed to his injuries or that Dr. Tully incorrectly read the barium enema study he performed on Jonathon.
The defendants contend that throughout trial they presented the theory that Jonathon's mid-gut volvulus was the result of a preexisting congenital condition of malrotation, and not any negligence on Dr. Kennedy's part or on the part of any other person.
At the initial jury instruction conference, the plaintiff tendered the short form of IPI Civil (1995) No. 12.04, which stated:
In arguing for the proposed jury instruction, the plaintiff's attorney stated, "there is evidence in this case from which the jury might infer that someone other than the defendant might have done something wrong, and there's no evidence that anyone other than the defendant could be a sole proximate cause." The trial court countered, "I think there was a suggestion off of the record that the parents might be blamed somehow here; but I don't think that anybody is adopting that position." The plaintiff's attorney agreed, but stated, ...
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