Cimino v. Sublette

• Decision Date: 30 April 2015
• Docket Number: No. 1–13–3373.,1–13–3373.
• Citation: 31 N.E.3d 846
• Parties: Salvatore CIMINO, as Special Administrator of the Estate of Concetta Cimino, Deceased, Plaintiff–Appellee, v. Gerard SUBLETTE, M.D., Defendant–Appellant.
• Court: United States Appellate Court of Illinois

31 N.E.3d 846

Salvatore CIMINO, as Special Administrator of the Estate of Concetta Cimino, Deceased, Plaintiff–Appellee

v.Gerard SUBLETTE, M.D., Defendant–Appellant.

No. 1–13–3373.

Appellate Court of Illinois, First District, Fourth Division.

April 30, 2015.

Charles F. Redden, Sommer R. Luzynczyk, and Scott L. Howie, all of Pretzel & Stouffer, Chtrd., of Chicago, for appellant.

Burton I. Weinstein, of Baskin, Server, Berke & Weinstein, LLC, of Chicago, for appellee.

OPINION

Presiding Justice FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 This is a medical malpractice wrongful death case that was tried to a jury verdict. The jury ruled in favor of the plaintiff, Salvatore Cimino (hereinafter Salvatore), as special administrator of the estate of Concetta Cimino, deceased (hereinafter Concetta), finding that the defendant, Dr. Gerard Sublette (hereinafter Dr. Sublette), was negligent in the treatment of Concetta and that his negligence was the cause of her death. In its verdict form, however, the jury nevertheless entered “$0.00” as the amount of damages awarded. The plaintiff moved for a new trial on damages alone, and the trial judge granted his motion in part, allowing a new trial on all of the issues. The defendant now appeals, contending that the trial court abused its discretion when it ordered a new trial because the jury's verdict of no damages was consistent with a finding of liability. The defendant asks that we reinstate the jury's original verdict of liability with zero damages. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 At the outset, we note that we are baffled by the meager state of the record that is before us. In reviewing this case we have had the benefit only of these documents: (1) the transcript of the jury trial up through the reading of the jury instructions but not including the entry of the verdict in open court; (2) the parties' posttrial pleadings and transcripts of those posttrial proceedings¹ ; and (3) a set of jury instructions and verdict forms.² What is more, although this is a complex medical malpractice wrongful death case, wherein the parties contest whether the jury found proximate cause between the physician's breach of the standard of care and the decedent's injuries or erred in awarding the appropriate damages, neither party has attempted to address, even minimally, what transpired at trial. Our courts have long held that a reviewing court is “not a repository into which an appellant may foist the burden of argument and research.” (Internal quotation marks omitted.) Velocity Investments, LLC v. Alston, 397 Ill.App.3d 296, 297, 337 Ill.Dec. 415, 922 N.E.2d 538 (2010). Supreme Court Rule 341(h)(6) and (h)(7) requires a statement of the facts, with citation to the record, necessary for an understanding of the case and a clear statement of contentions with supporting citation of authorities and pages of the record relied on. Ill. S.Ct. R. 341(h)(6), (7) (eff. July 1, 2008). It is not the reviewing court's job to “sift through the record or complete legal research to find support for * * * issue[s].” In re Marriage of Kiferbaum, 2014 IL App (1st) 130736, ¶ 21, 386 Ill.Dec. 51, 19 N.E.3d 1204. That said these are the facts that we have been able to glean from the limited record that has been placed before us.

¶ 4 A three-day trial took place between April 8, and April 11, 2013, at which the following evidence was adduced.

¶ 5 A. Roseann Branken

¶ 6 The plaintiff first called Roseann Branken (hereinafter Roseann), the daughter of the deceased, Concetta. She testified that in January 2009, her mother was 83 years old and retired, living alone in Franklin Park. Roseann averred that Concetta was “pretty active” for an 83–year–old woman and that she belonged to a church community center, went to church, played Bingo, and “liked to be festive” and to gather family at her home. Concetta did not drive by herself and needed family members to drive her around. Roseann, who lived only 15 minutes away from Concetta, visited Concetta every day and drove her to many of her daily activities.

¶ 7 According to Roseann, prior to January 2009, Concetta was also “in pretty good health for a woman of her age.” Concetta had some arthritis in her shoulders and back, and she took blood pressure medication and water pills. Seven years earlier she had had two artificial knee replacement surgeries. Other than these, however, Roseann averred that Concetta was in good health. Roseann was familiar with Concetta's physicians because she drove her mother to those visits. She stated that Concetta had been seeing only two doctors: (1) Dr. Charles Mattis (hereinafter Dr. Mattis), her general practitioner; and (2) Dr. Bajgrowicz, her cardiologist at Gottlieb Memorial Hospital, whom she saw only once or twice a year for routine cardiac checkups.

¶ 8 Roseann next testified regarding the events leading up to Concetta's death. She stated that on Saturday, January 9, 2009, Concetta telephoned her to say that she had been vomiting and was not feeling well and to ask Roseann if she could come by. Roseann went to Concetta's house at about 7 p.m., a couple of hours after receiving that call. According to Roseann, Concetta looked tired, but was still able to walk. Concetta went to lie down and rest and Roseann made her some tea. In the next couple of hours, Concetta continued to get out of bed to go to the bathroom to vomit. Initially, neither of them was nervous or worried, and Concetta told Roseann that it must be the “flu bug” that was “going around.” However, at about 2 a.m., after Concetta continued to throw up, she asked Roseann to take her to the emergency room.

¶ 9 Concetta was transported by ambulance to Gottlieb Memorial Hospital.

Roseann stayed with Concetta in the emergency room (hereinafter the ER) until the staff took her blood tests. At that point, at Concetta's insistence, Roseann returned home to rest. Roseann returned to the hospital at about 9 a.m., the next morning, telephoning her brother, the plaintiff, Salvatore Cimino (hereinafter Salvatore) on the way to tell him that their mother was in the ER.

¶ 10 At this point, Concetta had been moved from the ER to a regular room. At about 10 or 11 a.m., Roseann spoke to Dr. Mattis, Concetta's general practitioner, who informed her that whatever “Concetta had could be serious and she could need surgery.” Dr. Mattis told Roseann that the CT scan that was performed on Concetta was “not diagnostic” (i.e., was inconclusive) and that the physicians would probably have to do a colonoscopy to see what was going on. He also told Roseann that “there may be blockage” so that Concetta may have to undergo surgery. After speaking with Dr. Mattis, Roseann went to see her mother. Concetta looked tired, but was her usual talkative self. Dr. Mattis had already spoken to her about what was going on, and she was aware about the possible colonoscopy. According to Roseann, Concetta was lucid, alert and capable of making competent medical decisions. Concetta received numerous family visitors that day in the hospital, and Roseann stayed with her until very late that night.

¶ 11 After going home to sleep, Roseann returned to the hospital at about 8 a.m. on January 12, 2009. Once there, she was informed that Concetta was being taken in for a chemical stress test, which would be followed by a colonoscopy. A nurse presented Roseann with several consent forms (for a colonoscopy, polypectomy, biopsy and gastroscopy ) and she signed them. Roseann stated that she never met or spoke with the defendant, Dr. Sublette, prior to or after he performed the colonoscopy. Instead, Roseann spoke only to the nurse who “vaguely” described the colonoscopy procedure for her. Roseann explained, however, that she was generally aware of what a colonoscopy entailed because she had undergone the procedure herself in the past. Roseann also averred that no one at the hospital warned her of the risk of diverticulitis or a risk of perforation if there was diverticulitis, during a colonoscopy. She stated that it was her impression that Concetta was undergoing a purely routine test.

¶ 12 Roseann next testified that while Concetta underwent the colonoscopy, together with her niece, Lora Cimino, she waited in the hospital waiting room, right across from the procedure room. Roseann had been told that the procedure would last about 20 minutes to half an hour. However, about 10 minutes into the procedure a nurse came out of the room and informed her that there had been complications because Concetta had thrown up during the colonoscopy. The nurse explained that they immediately had to stop the colonoscopy and put a tube down Concetta's throat to help her breathe. The nurse also told Roseann that they were prepping Concetta for an emergency surgery.

¶ 13 Soon thereafter, Roseann watched as Concetta was moved from the colonoscopy procedure room to the operating room. She testified that in those few minutes, Concetta's eyes were open, but that she could not speak because she was intubated. Immediately after that, Roseann telephoned her brother.

¶ 14 Roseann stated that during the surgery, the operating physician, Dr. Raul Villasuso (hereinafter Dr. Villasuso), came out of the operating room to explain to her that he need to “resection Concetta's colon.” He told Roseann that he “had a lot of poison to clean out and that he was going to give it his best shot” so that Concetta “would come out of it.” After the surgery, Concetta was placed in the intensive care unit (ICU). She remained intubated and was unable to speak. She died in the hospital two days later, on Wednesday, January 14, 2009.

¶ 15 Roseann next testified that Concetta's hospital bills and funeral expenses have been paid. She further testified that since Concetta's death the family has not been the same. She explained that Concetta was very good at gathering the family, but that, since her passing, the members have “each gone their own...