Fakes v. Eloy

• Decision Date: 12 March 2014
• Docket Number: No. 4–12–1100.,4–12–1100.
• Citation: 8 N.E.3d 93,380 Ill.Dec. 162,2014 IL App (4th) 121100
• Parties: Mary FAKES, as Special Administratrix for the Estate of Laura Alice Powell, Deceased, Plaintiff–Appellant, v. Victor ELOY, M.D.; and Internal Medicine Subspecialty Associates, Ltd., Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2014 IL App (4th) 121100

8 N.E.3d 93

380 Ill.Dec. 162

Mary FAKES, as Special Administratrix for the Estate of Laura Alice Powell, Deceased, Plaintiff–Appellant,

v.Victor ELOY, M.D.; and Internal Medicine Subspecialty Associates, Ltd., Defendants–Appellees.

No. 4–12–1100.

Appellate Court of Illinois, Fourth District.

March 12, 2014.

Lisa Corwin (argued), Wylder Corwin Kelly LLP, Bloomington, for appellant.

Charles C. Hughes (argued), Katie W. Baggett, Hughes & Tenney, L.L.C., Decatur, for appellees.

OPINION

Justice STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In November 2006, plaintiff, Mary Fakes, as special administratrix for the estate of Laura Alice Powell, deceased, filed a medical malpractice suit against defendants, Victor Eloy, M.D., and his principal, Internal Medicine Subspecialty Associates, Ltd. (hereinafter, defendants or Eloy). In March 2012, a jury returned a verdict in Eloy's favor.

¶ 2 Fakes appeals, arguing that the trial court (1) erred by failing to impose sanctions against Eloy for violating Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) and (2) abused its discretion by admitting (a) evidence under the rule of completeness, (b) the testimony of two medical experts with whom defense counsel purportedly engaged in prohibited ex parte communications in violation of the doctrine announced in Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952 (1986) ( Petrillo doctrine), (c) hearsay evidence, and (d) evidence the court had barred. Fakes also argues that the court violated her right to a fair trial by refusing to strike four prospective jurors for cause. For the reasons that follow, we reverse and remand.

¶ 3 I. BACKGROUND

¶ 4 A. Prologue

¶ 5 On November 26, 2004, decedent, who was 63 years old, sought emergency medical care because she had earlier vomited a considerable amount of blood. The following morning, she died as a result of bleeding veins in her esophagus (a condition known as bleeding esophageal varices). Fakes sued, claiming that the care Eloy provided to decedent did not comport with the medical standard of care. The jury later returned a verdict in Eloy's favor.

¶ 6 Because Fakes' claims concern multiple issues that occurred before and during the six-day trial in this case, and given the length of the record in this case, we limit our discussion to the facts necessary to place the parties' arguments in context.

¶ 7 B. Voir Dire

¶ 8 At the beginning of jury selection, the trial court identified by name potential witnesses who were expected to testify, including Eloy, decedent's gastroenterologist, and George Duncan, decedent's primary care physician. After providing the venire a brief description of the nature of the case, the court asked a series of typical voir dire questions to a panel of 14 veniremembers. The court then permitted the parties to pose questions to the panel and specific veniremembers. The court and parties would then adjourn to the judge's chambers to discuss the panel at issue. In this case, the aforementioned process was repeated with three panels—each comprised of 14 veniremembers—to empanel a 12–member jury.

¶ 9 1. The First Venire Panel

¶ 10 During questioning of the first panel, Fakes' counsel asked for a show of hands to the question, “Who doesn't like lawsuits?”

¶ 11 Veniremember A opined that we live in a litigious society, adding, “I think everybody is very quick to want to go to court.” Counsel then asked whether veniremember A had a bias against lawsuits, and he responded, “if there is justification, I think it's okay. But sometimes I think that * * * they're too quick to file and sometimes there's not any merit there.” Veniremember B expressed her “strong” belief that “more and more everybody is just finding ways to go to court just to get money.” Veniremember B did not believe she had a bias against litigation but was merely noting that it was increasing. Veniremembers A and B agreed that Fakes' suit “start[s] off a little bit behind” because of their respective opinions. Despite their beliefs, both stated that they would decide the case based on the evidence presented.

¶ 12 Fakes later moved to strike veniremembers A and B for cause, noting their attitude toward lawsuits and their belief that Fakes' suit starts out behind. Eloy objected, noting the responses the veniremembers expressed regarding their specific roles as jurors as opposed to their general beliefs on litigation. The trial court denied Fakes' motions to strike for cause. Thereafter, Fakes used two of her five peremptory challenges to dismiss both veniremembers.

¶ 13 2. The Second Venire Panel

¶ 14 Veniremember C, a registered nurse, knew both Eloy and Duncan because she had cared for their hospital patients. She characterized both as “good doctors” and said her relationships with Eloy and Duncan would not affect her impartiality. Veniremember D, a molecular biologist, (1) baby-sat the children of Eloy's counsel “years ago” and (2) worked with Eloy on a medical-research project. Although veniremember D had formed an opinion of both men, she stated that she could set aside those personal opinions and decide the case on the facts presented.

¶ 15 Fakes later moved to strike both veniremembers C and D, citing their respective relationships. Eloy objected, arguing that both veniremembers clearly stated they would be impartial jurors. The trial court denied Fakes' motions to strike for cause. Fakes responded by using a third peremptory challenge to dismiss veniremember C.

¶ 16 3. The Third Venire Panel

¶ 17 After answering questions that the trial court posed to the entire panel, veniremember G.M. informed Fakes that she could award $500,000 if the law and evidence supported such a verdict. During Eloy's questioning, G.M. explained that she had recently retired from her job as a bookkeeper in Decatur Township's welfare division.

¶ 18 4. The Composition of the Jury

¶ 19 During consideration of the third panel, the trial court informed the parties that eight veniremembers had been selected as jurors and four selections remained. When the trial court tendered to Fakes four possible jurors, one of whom was veniremember D, Fakes used her fourth peremptory challenge to dismiss her. Fakes then used her fifth—and final—peremptory challenge to dismiss veniremember D's replacement. Eloy then used a peremptory challenge to dismiss a veniremember that the court then replaced with G.M. Eloy accepted the four veniremembers tendered. Fakes' counsel responded, as follows:

“I want to make a record that I would have struck* * * [G.M.] if I had another peremptory because I would have used one of my perempts [ sic ] on her. * * * I understand I don't have one, but I want to make a record on that. I never did accept that panel.”

¶ 20 C. The Pertinent Trial Evidence Presented by the Parties

¶ 21 1. Fakes' Evidence

¶ 22 Fakes called Eloy to testify as an adverse witness in her case in chief. Eloy, a board-certified physician in internal medicine and gastroenterology, testified that on November 22, 2004, five days before decedent died, he examined her by performing an upper endoscopy and a colonoscopy. An upper endoscopy is a procedure that enables a physician to view the esophagus, stomach, and portions of the small bowel using a thin, flexible scope inserted through the mouth. The colonoscopy allows examination of the colon by inserting a different type of scope through the anus.

¶ 23 Eloy's preoperative diagnosis was that decedent suffered from “[c]irrhosis of the liver secondary to hepatitis C.” Eloy explained that in the mid–1980s, decedent contracted hepatitis C from a blood transfusion. In his November 22, 2004, operative report, documenting the results of his separate endoscopy procedures, Eloy diagnosed decedent with a “[g]rade II [of IV] esophageal [varices].” Eloy confirmed that bleeding esophageal varices can cause death if the blood flow is not stopped by performing an endoscopic variceal banding procedure. Eloy acknowledged that some physicians perform the banding procedure even when the esophageal varices are not bleeding.

¶ 24 On November 26, 2004, decedent called Duncan, complaining of vomiting “a large amount of blood.” Duncan advised her to go to the Decatur Memorial Hospital emergency room (ER). When she arrived, ER personnel notified Eloy. At about 11:30 p.m., Eloy examined decedent. That examination revealed that decedent had bled from her gastrointestinal tract. Eloy opined that decedent's esophageal varices had bled earlier but had stopped bleeding by the time he examined her because decedent was not (1) vomiting blood, (2) passing blood clots through the rectum, or (3) experiencing “dark tarry stools,” which were symptoms of such a condition. Eloy also noted that decedent's grade II esophageal varices were small, which would not create enough pressure to cause a rupture. Eloy did not perform an upper endoscopy on decedent, which he admitted would have confirmed whether bleeding was occurring.

¶ 25 Because decedent was stable at that time, Eloy prescribed medication to slow decedent's blood flow, ordered decedent's transfer to the intensive care unit (ICU), and scheduled an “endoscopic evaluation * * * with variceal banding” for 10:30 a.m. the following day. In his consultation report, Eloy diagnosed decedent, in part, with “[g]astrointestinal bleed suspect secondary to esophageal [varices].” Eloy then returned home.

¶ 26 At approximately 1:30 a.m. on November 27, 2004, ER personnel called Eloy at his home and informed him that decedent had “developed some abdominal pain.” Eloy prescribed the medication Demerol. At 5:08 a.m. that same day, ICU personnel called Eloy and informed him that decedent was allergic to Demerol and that her blood hemoglobin count had dropped from 10.4—when Eloy examined her in the ER—to 6.2, which the testing technician annotated was a “panic level” measurement. Upon learning of decedent's...