Flynn v. Edmonds

• Decision Date: 29 October 1992
• Docket Number: No. 4-91-0792,4-91-0792
• Citation: 602 N.E.2d 880,176 Ill.Dec. 934,236 Ill.App.3d 770
• Parties: , 176 Ill.Dec. 934 John J. FLYNN, Jr., and Alana Flynn, Plaintiffs-Appellants, v. Andre EDMONDS, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 880

602 N.E.2d 880

236 Ill.App.3d 770, 176 Ill.Dec. 934

John J. FLYNN, Jr., and Alana Flynn, Plaintiffs-Appellants, v. Andre EDMONDS, M.D., Defendant-Appellee.

No. 4-91-0792.

Appellate Court of Illinois Fourth District.

Oct. 29, 1992.

Alexandra de Saint Phalle, Londrigan, Potter & Randle, P.C., James C. Craven, James C. Craven, P.C., Springfield, for plaintiffs-appellants.

Delmer R. Mitchell, Gena J. Awerkamp, Schmiedeskamp, Robertson, Neu & Mitchell, Quincy, for defendant-appellee.

Justice LUND delivered the opinion of the court:

Plaintiffs appeal a judgment entered upon a jury verdict in favor of defendant in an action for medical malpractice before the circuit court of Adams County. Recovery was premised on defendant's alleged negligence in delaying treatment of complications arising from a dislocated elbow. We affirm.

On December 17, 1985, John Flynn, Jr. (Flynn), fell off a stool and dislocated his elbow. He was treated in the emergency room at St. Mary's Hospital by Dr. Edmonds, who then issued instructions for care and discharged Flynn. Dr. Edmonds examined the arm again on the following afternoon and, finding no problem, sent him home. The pain and swelling of a dislocated elbow normally begins to subside within 24 to 48 hours. But, on December 19, Flynn's condition worsened. Mrs. Flynn exchanged telephone calls with Dr. Edmonds and was told to loosen his bandage. Although he did not think it was necessary, Dr. Edmonds advised Mrs. Flynn that he would meet her at the emergency room if she insisted. Late that evening, she took her husband to the emergency room where he was examined by Dr. Kuhlman. Dr. Kuhlman then called Dr. Edmonds and described his findings, whereupon the two doctors decided to admit Flynn for observation. Orders were given to check Flynn every two hours and notify Dr. Edmonds of any change in his condition.

A somewhat rare, but potentially catastrophic complication of any elbow dislocation is a condition known as a "compartment syndrome." It is caused when swelling within the fascia, or the compartment which envelops the muscles, becomes so severe that the flow of blood is cut off, causing damage to nerves, blood vessels, and muscles within the compartment. At the time of Flynn's injury, the only way to diagnose compartment syndrome was through observation of a consolidation of signs and symptoms sometimes referred to as the six "P's": pain out of proportion to the injury, pallor, paralysis, paresthesia (numbness), polar (cold to the touch), and pulselessness. The only treatment for compartment syndrome is a fasciotomy, where the compartment lining is split down the length of the arm, allowing the swollen muscle to spill out. The wound is allowed to stay open, often for several days, until the swelling decreases. Fasciotomy is a mutilating surgery that poses an increased risk of infection due to the fact that the wound is allowed to remain open for so long.

During the second examination on December 18, 1985, Dr. Edmonds found no sign of compartment syndrome. On the evening of the 19th, the emergency room physician found that Flynn was able to move his fingers, sensation was intact, and pulse and circulation were good. The upper arm was quite swollen, with visible bruising and blisters caused by the swelling. There were no definite signs of compartment syndrome other than increased pain, and Dr. Kuhlman testified that this pain was not out of proportion to the injury.

At 3 a.m., defendant called to check on Flynn's condition and was given no reason to come in to see him. At 6 a.m., the record indicates that Flynn's condition appeared to be improving. At 8 a.m., Flynn's family physician, Dr. Westerhoff, stopped by for a social visit. He observed that Flynn's condition was deteriorating and believes he probably told the nurse that Dr. Edmonds should be contacted.

Dr. Edmonds had planned to see Flynn at 8 a.m. that day, until he received a call from Blessing Hospital advising him that his 9 a.m. surgery had been rescheduled for 8 a.m. Although the surgery was relatively straightforward and elective in nature, the procedure was unavoidably delayed until 9:30 a.m. Defendant was not alerted to Flynn's condition until this surgery was in progress. Dr. Edmonds immediately called Dr. Westerhoff and, after discussing Flynn's condition, alerted the St. Mary's staff to prepare for surgery on Flynn. He arrived at St. Mary's at about 10 a.m. and found that Flynn's pulse in the injured arm was only detectable by "Doppler." Flynn could still move his fingers and had normal sensation, but he had increased swelling in his neck, chest wall, and upper arm. Dr. Edmonds planned surgery within the next half hour and contacted Dr. Bitter, a vascular surgeon, to assist. Dr. Bitter was already involved in an elective surgery when he received the call from Dr. Edmonds, so surgery on Flynn was delayed until he could arrive, at 12:15 p.m. The fasciotomy only lasted 30 minutes and successfully preserved the viability of all muscle tissue in the arm. Unfortunately, circulation to the arm was reestablished only with great difficulty--the vascular surgery lasted 4 1/2 hours.

Plaintiffs' principal claim is that if the fasciotomy had been performed earlier, there would have been no need for the extensive vascular surgery. Dr. Edmonds' delay in detecting the compartment syndrome, combined with the subsequent delay while waiting for Dr. Bitter to finish his elective surgery, caused Flynn to suffer significant deterioration of his condition, resulting in repeated surgical procedures to restore circulation to his arm. Plaintiffs also claim Dr. Edmonds breached the standard of care by not admitting Flynn after the initial examination. The jury found in favor of defendant, plaintiffs' post-trial motion was denied, and this appeal follows.

I. REFUSAL TO DECLARE A MISTRIAL

Plaintiffs' first argument is that the trial court erred in refusing to grant a mistrial during voir dire when, in response to questioning from the trial judge, a juror answered as follows:

"Well, the only concern I have is when you use the term substantial damages. If it turns into hundreds of thousands of dollars, because of my knowledge of malpractice insurance costs, I have a little bit of a feeling that it's not really, maybe it's--."

Plaintiffs' counsel claims that juror Jurrens' mention of insurance in connection with medical malpractice was highly prejudicial and affected the jury panel. At the time Jurrens made her remark, eight jurors had already been selected and were no longer present in the courtroom.

Plaintiffs rely on Maddox v. Smith (1966), 67 Ill.App.2d 374, 214 N.E.2d 5, for the principle that a mistrial should be granted if a prospective juror expresses derogatory remarks about persons seeking recovery from insured defendants. In Maddox, a prospective juror had, in a prior case, delivered a diatribe lasting several minutes regarding plaintiffs who filed suits against insured defendants. One or more of the jurors in the prior case also served on the jury in the Maddox case, and Maddox's counsel claimed that, had he known this, he would have called for a mistrial. The Maddox court acknowledged that a mistrial was warranted in the prior case. In regard to their own case, the Maddox court recognized the difficulty of any observant person to ignore the direct and implied pressures in favor of or against personal injury claims. The court held that, absent any specific showing to the contrary, members of a jury will be presumed to faithfully perform their duties of fairness and impartiality to the best of their ability. Maddox, 67 Ill.App.2d at 383, 214 N.E.2d at 9.

The single comment made by Jurrens does not rise to the level of a diatribe lasting several minutes. The trial court carefully explained to Jurrens that the amount of damages is determined solely by the jury. When asked if she could sign a verdict for substantial damages if the jury decided it was fair, she responded that she could.

The traditional rule is that it is always improper to inform the jury, directly or indirectly, that the defendant is insured against liability. (Kitsch v. Goode (1977), 48 Ill.App.3d 260, 6 Ill.Dec. 17, 362 N.E.2d 446.) In recent years, though, courts have demonstrated an increasing tolerance toward references to insurance. The rule in Illinois is that a mistrial is not appropriate where the subject of insurance is introduced by an isolated, inadvertent, or unresponsive reference by someone other than plaintiff's counsel where there is no apparent intent to prejudice the defendant. (Kitsch, 48 Ill.App.3d at 266, 6 Ill.Dec. at 22, 362 N.E.2d at 451; Williams v. Consumers Co. (1933), 352 Ill. 51, 185 N.E. 217.) The cases which have found prejudicial error due to the mention of insurance have involved some misconduct, improper remarks or questions of counsel calculated to influence or prejudice the jury. (Mondelli v. Checker Taxi Co. (1990), 197 Ill.App.3d 258, 143 Ill.Dec. 331, 554 N.E.2d 266.) Since the record shows no indication of misconduct by counsel, the trial court's denial of the motion for mistrial was fully justified.

II. REFUSAL TO EXCUSE JURORS

Plaintiffs next argue that the trial court created reversible error by forcing them to exhaust their peremptory challenges on jurors who should have been discharged for cause. Plaintiffs were denied challenges for cause as to jurors Lohmeyer, Schutte, Junkerman, and Jurrens, and used peremptories to exclude them. Plaintiffs argue that had the court ruled properly and excluded these jurors for cause, then they would have had sufficient peremptories left over to exclude jurors Ruffcorn and Jones. A challenge for cause against Ruffcorn and a request for an additional peremptory to excuse Jones were both denied.

The principle governing our review of a trial court's ruling on a challenge to a juror for cause originates in the Haymarket Square riot case, Spies v. People (18...