CETERA v. DIFILIPPO
| Decision Date | 04 August 2010 |
| Docket Number | No. 1-09-0691.,1-09-0691. |
| Citation | 343 Ill.Dec. 182,404 Ill.App.3d 20,934 N.E.2d 506 |
| Parties | Charles F. CETERA and Elizabeth Cetera, Plaintiffs-Appellants, v. Mary DIFILIPPO, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
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Langhenry, Gillen, Lundquist & Johnson, LLC, of Chicago (John G. Langhenry, Melissa J. Gordon and Joshua M. Feagans, of counsel), for Appellants.
Law Office of Debra A. Thomas, PC, of Glen Ellyn (Debra A. Thomas, of counsel) and Law Office of Harry C. Lee, of Chicago (Harry C. Lee, of counsel), for Appellee.
Plaintiffs, Charles and Elizabeth Cetera, filed a lawsuit alleging medical negligence against defendant, Dr. Mary DiFilippo, claiming that defendant was negligent in the diagnosis and treatment of an infection that Charles sustained following coronary bypass surgery. 1 Following a trial, the jury returned a verdict in favor of defendant and against plaintiffs. Plaintiffs filed a posttrial motion requesting a new trial, which the circuit court denied. On appeal, plaintiffs contend that the circuit court abused its discretion in denying their posttrial motion for a new trial where the court committed reversible error by: (1) allowing the introduction of plaintiffs' expert Dr. Carl David Bakken's licensing reprimand into evidence; (2) allowing defendant's expert witnesses to present undisclosed opinion testimony; (3) barring plaintiffs from questioning Dr. John Andreoni, a treating physician, regarding his insurance coverage; (4) allowing cross-examination of plaintiffs' expert Dr. Rodger MacArthur concerning his proximate cause opinions relating to the hospital nursing staff's conduct and giving the long form of Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1989); (5) refusing plaintiffs' nonpattern loss of chance instruction; (6) giving arbitrary rulings pertaining to cumulative testimony and cross-examination; and (7) entering erroneous rulings throughout the trial that cumulatively could have affected the jury's verdict. For the following reasons, we affirm.
Plaintiff Charles Cetera was admitted to the hospital on October 27, 1998, as a 74-year-old male with complaints of chest pain. Charles was diagnosed with a heart attack due to three blocked arteries and underwent a surgery known as a coronary artery bypass graft (CABG). The CABG included the placement of a chest tube in the upper right portion of Charles's abdomen to allow for drainage of the chest after surgery. After the tube was removed, a wound remained on Charles's abdomen.
Following the CABG procedure, Dr. Rajesh Sehgal, Charles's cardiologist, determined that Charles's cardiac rhythm was normal. On November 3, 1998, Dr. Mariusz Gadula, Charles's attending physician, began planning Charles's discharge from the hospital. Charles's hospital chart indicated that he did “great” during physical therapy on that date. There was no indication that Charles's doctors observed any redness or issue with the chest tube wound on November 1, 2, or 3, 1998.
On November 4, 1998, Dr. Mary DiFilippo was overseeing Charles's care while Dr. Gadula was away from the hospital. At 6:30 a.m., Dr. DiFilippo received a telephone call alerting her that Charles was hypotensive and constipated. Dr. DiFilippo ordered that Charles not be given his beta blocker medication and that he be given medication for his constipation. At 8:30 a.m., Dr. DiFilippo examined Charles in his hospital room. Dr. DiFilippo observed that Charles had erythema, or redness, in the upper right quadrant of his abdomen, around the chest tube wound. Dr. DiFilippo observed that the erythema was “minor” and limited to a two-inch, “light pink” area around the wound and that Charles had some tenderness and swelling around the wound. Charles complained of pain around the wound, but was unable to explain if the pain was constant or intermittent. Dr. DiFilippo also examined Charles's liver, blood pressure, heart and extremities.
After examining Charles, Dr. DiFilippo's impression was that Charles had cellulitis in the upper right quadrant of his abdomen and low blood pressure. Dr. DiFilippo also considered whether Charles had problems with his liver or gallbladder. Dr. DiFilippo ordered that 250 milligrams of the antibiotic Keflex be given to Charles four times per day to treat the cellulitis and that Charles's blood pressure medication be decreased. Dr. DiFilippo also ordered that Charles's cardiac surgeon check the chest tube wound and that Charles undergo a liver function test. Dr. DiFilippo did not order a complete blood count test because she already knew there was an infection and she did not order a culture because there was no drainage or any particular area that could have been cultured without puncturing the wound. Dr. DiFilippo did not consider calling an infectious disease consultation at that time because the wound was minor and she wanted input from the cardiac surgeons.
Later, at 11:30 a.m., on November 4, 1998, Dr. Pappas, a cardiovascular surgeon, examined Charles and ordered an ultrasound of Charles's upper right quadrant. Dr. Pappas did not change Charles's Keflex medication or order an additional antibiotic. At 12:40 p.m., Dr. Cozy, a cardiologist, examined Charles and noted in Charles's medical chart that he was taking antibiotics. Dr. Cozy requested an infectious disease consultation but did not change the Keflex medication.
At 4:30 p.m., Dr. Gordon, a cardiac surgeon, examined Charles and diagnosed a chest wall infection. Dr. Gordon added the antibiotic vancomycin, which is used to treat methicillin-resistant staph aureus (MRSA) infections, to the prior order for Keflex. Dr. Gordon requested an infectious disease consultation but did not alter the Keflex medication. At 7 p.m., a nurse called Dr. DiFilippo to report that Charles was not eating well and Dr. DiFilippo ordered the nurses to provide a can of a nutritional supplement with Charles's meals.
At 1 a.m., on November 5, 1998, a nurse contacted Dr. DiFilippo to report that Charles had low blood pressure. Dr. DiFilippo ordered that Charles be immediately evaluated by the house staff at the hospital. Dr. Anita Ekambarm, a first-year resident, examined Charles and called Dr. DiFilippo at 2 a.m. Dr. Ekambarm reported that Charles had low blood pressure and that the erythema had spread to the lower right quadrant of his abdomen. The erythema was tender and Charles had an increased temperature. Dr. DiFilippo and Dr. Ekambarm's differential diagnosis was sepsis or a heart attack. A complete blood count (CBC) was ordered to determine if Charles was septic and intravenous fluids were ordered to treat his low blood pressure. Dr. DiFilippo continued the Keflex and vancomycin.
At 4:30 a.m., a nurse observed that Charles's chest tube wound was open and had a bloody drainage. Dr. Ekambarm ordered a blood culture of the drainage. Dr. Ekambarm believed that she notified Dr. DiFilippo of the drainage, but Dr. DiFilippo did not recall receiving a call regarding the drainage.
At 9:05 a.m., on November 5, 1998, Dr. Gadula examined Charles after his return to the hospital. Prior to the examination, Dr. Gadula discussed Charles's care with Dr. DiFilippo in preparation for resuming his care of Charles. Dr. Gadula noted that Charles had abdominal pain, he was slightly lethargic and weak, had mild nausea with no vomit or diarrhea, and his blood pressure was in the 95 range. Dr. Gadula's impression was that Charles had a possible chest wall infection extending from the chest tube wound. Dr. Gadula noted that Charles had been on the antibiotics Keflex and vancomycin, and that an infectious disease consultation was pending. Dr. Gadula ordered intravenous fluids, a blood culture, a complete blood test, a urine analysis, and that Charles's vital signs be monitored. Dr. Gadula did not change the antibiotic medications.
At 9:30 a.m., Dr. Andreoni, an infectious disease consultant, examined Charles. Dr. Andreoni observed erythema on the right side of Charles's abdomen, which was spreading along his right flank. Dr. Andreoni noted that the erythema was tender, painful, and the skin was swollen. Dr. Andreoni's impression was cellulitis of the abdominal wall consistent with a strep or mixed flora infection. Dr. Andreoni ordered the Keflex be discontinued and that the broad spectrum antibiotic Unasyn be administered by IV every six hours, as soon as possible. Dr. Andreoni continued the vancomycin.
The same morning of November 5, 1998, Charles was also examined by his cardiologist, Dr. Sehgal. Dr. Sehgal noted that Charles had abdominal pain and an infection where the CABG was performed. Dr. Sehgal ordered a blood gas test, a CT scan of Charles's abdomen, a surgical consultation, and that Charles be transferred to the intensive care unit.
At 1:30 p.m., on November 5, 1998, Dr. Gerald Klompien, a general surgeon, examined Charles and observed that Charles had a spreading cellulitis over the right abdominal wall. Dr. Klompien noted that he did not see crepitation, or gas, in the infected tissue, which would evince dying tissue. Dr. Klompien did not take Charles to surgery immediately because he did not find any crepitation, Charles appeared stable, and had just been started on IV antibiotics.
Around midnight on November 5, 1998, Dr. Klompien took Charles to surgery to oxygenate the infected tissue. During surgery, Dr. Klompien encountered a thin, watery fluid and healthy muscle with the fat above it bleeding, which was a positive sign that a blood supply remained, allowing antibiotics to get to the tissue. Dr. Klompien diagnosed Charles with necrotizing fasciitis.
On November 7, 1998, Charles underwent a second skin surgery to remove more tissue from the abdomen that had died after the first surgery. Charles's infection continued...
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Table of Cases
...§6:192 Cesena v. Du Page County , 201 Ill App3d 96, 558 NE2d 1378, 146 Ill Dec 1044 (2nd Dist 1990), §21:123 Cetera v. DiFilippo , 404 Ill.App.3d 20 (2010), §25:141 Chamblin v. Chamblin , 362 Ill 588, 1 NE2d 73 (1936), §31:40 Champaign County Forest Preserve Dist. v. King , 291 Ill App3d 19......
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Preliminaries
...insurance is not germane to the action and evidence on that issue is properly excluded as irrelevant. ILLINOIS Cetera v. DiFilippo , 934 N.E.2d 506, 520 (Ill. App. Ct. 2010). Reference to the fact that defendant is protected by insurance or some other indemnity agreement ordinarily is impro......
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Witness
...of whether a witness is unlikely to tell the truth is a credibility determination for the trier of fact. Cetera v. DiFilippo , 404 Ill. App. 3d 20, 46 (Ill. App. Ct. 2010). Treating physicians may render opinions at trial because those opinions are developed in the course of treating the pa......