Green v. University of Chicago Hospitals and Clinics

• Decision Date: 08 March 1994
• Docket Number: No. 1-92-0070,1-92-0070
• Citation: 197 Ill.Dec. 268,631 N.E.2d 271,258 Ill.App.3d 536
• Parties: , 197 Ill.Dec. 268 Mary Jean GREEN, Plaintiff-Appellee, v. UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS and Martin Robson, M.D., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 271

631 N.E.2d 271

258 Ill.App.3d 536, 197 Ill.Dec. 268

Mary Jean GREEN, Plaintiff-Appellee, v. UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS and Martin Robson, M.D., Defendants-Appellants.

No. 1-92-0070.

Appellate Court of Illinois,

First District, First Division.

March 8, 1994.

Cassiday, Schade & Gloor, Jenner & Block, Chicago (Timothy J. Ashe, Lynn D. Dowd, Barry Sullivan, Jeanine M. Jiganti, of counsel), for defendants-appellants.

Komessar & Wintroub, Chicago (Mark S. Komessar, of counsel), for plaintiff-appellee.

Justice O'CONNOR delivered the opinion of the court:

Defendants, the University of Chicago Hospitals and Clinics and Martin Robson, M.D., appeal from a $3 million judgment awarded to plaintiff, Mary Jean Green, for damages she sustained as a result of their negligent medical treatment. We affirm the judgment of the circuit court.

Plaintiff suffers from a congenital condition known as hemangioma. Hemangioma causes the expansion of blood vessels which results in tumors. The appearance of the tumors can change over a period of time; however, they render those with this condition susceptible to potentially life-threatening hemorrhaging. Plaintiff's hemangioma produced a tumor which affected the left side of her face, including her nose, the area around her ear, her upper lip, and a portion of her left eye. She described her tumor as resembling a "birthmark." Although she experienced frequent nosebleeds during her lifetime prior to 1978, she had not undergone any medical treatment for the condition.

In November 1978, plaintiff's nose began to hemorrhage after she was accidentally hit in the nose by a rolling pin during a family fracas. She could not control the bleeding, and paramedics eventually took her to Gary Medical Center in Gary, Indiana. There, doctors "packed" her nose and transferred her to the University of Chicago Hospital.

When she arrived, she was treated by Dr. Robson, who at the time was the Chief of the Division of Plastic and Reconstructive Surgery and a specialist in congenital deformities. During her stay, Dr. Robson devised a multi-staged plan to treat her tumor. The aim of the plan was to "debulk" the tumor so as to decrease the risk of life-threatening hemorrhaging. During consultations in 1978, Dr. Robson explained to plaintiff that he might have to surgically remove her nose and reconstruct it. Robson also explained the procedure to her husband and her brother. In early 1979, plaintiff underwent the first stage operation in which Dr. Robson successfully removed the part of the tumor from underneath her nose without having to remove any portion of her nose.

After the 1979 surgery, plaintiff continued to suffer from nosebleeds. Her appearance remained generally unchanged from before except that some of the flesh from the top of her nose was disfigured due to the nose packing she had received in the Gary hospital. In October 1982, she returned to Dr. Robson to proceed with the next stage of surgery. The aim of the second surgery was the partial removal of that portion of the tumor which affected her cheek. According to plaintiff, Dr. Robson did not warn her that the surgery presented a risk of disfigurement. Had he done so, she would not have gone through with the procedure. She claimed that the consent form that she had signed prior to the surgery had been "altered."

The surgery took place on October 4, 1982. Following the operation, plaintiff experienced severe swelling to the affected area, which decreased during her stay in the hospital and which continued to decrease after her release. At a routine check-up three months later, Dr. Robson noted a decrease in the swelling. Plaintiff never returned to Dr. Robson for any further care.

In 1984, she filed suit against both Dr. Robson and the hospital, alleging that various deviations from the standards of the profession resulted in numerous and unsightly facial scars and deformity.

Dr. Robson testified that plaintiff's facial scarring was not related to the 1982 surgery because he would have noted it in his post-operative evaluations. He believed the enlargement of the tumor near her lip was caused by the natural disease process normally associated with hemangioma. The part of the tumor affecting her lip had not been scheduled for surgery in 1982. Dr. Robson also noted that plaintiff had undergone laser surgery on her lip which had been performed by another doctor in 1989. Dr. Robson stated that this type of procedure could have caused the tumor's enlargement. Dr. Robson stressed that the removal of the tumor was still possible through further surgery which would likely produce a "good result." He added that there was no recurrence of tumors in the areas of plaintiff's face on which he had operated.

Plaintiff's medical expert, Dr. Marc Karlan, testified that based on his review of plaintiff's medical records, Dr. Robson failed to secure informed consent from her. Moreover, in Dr. Karlan's opinion, the surgery was not indicated because her condition was not life-threatening in 1982; thus, Dr. Robson deviated from the standard of care by performing the operation. Karlan further stated that even if Dr. Robson had performed the surgery for cosmetic reasons, which would not be negligent per se, Robson deviated from the standard of care by not performing a total resection or removal of the tumor during the second operation. Dr. Karlan attributed the changes in plaintiff's appearance to the surgery or the healing process.

Plaintiff also presented the expert testimony of Dr. Michael Goldman, who had performed the unsuccessful laser surgery on her lip in 1989. Dr. Goldman stated that the laser surgery did not exacerbate her condition. Rather, it was Dr. Robson's 1982 surgery which caused plaintiff's tumor to change and become enlarged. However, Drs. Goldman and Karlan conceded that a tumor like hers could remain stable for a long period of time and suddenly enlarge. Both admitted that the tumor could have changed by itself, independent of any effect from Dr. Robson's operation.

Defendants' medical expert, Dr. Raymond Warpeha, reviewed plaintiff's medical records and concluded that she had been informed of the risks of the surgery. Dr. Warpeha stated that the 1982 operation conformed to the standard of care because plaintiff's intermittent bleeding indicated that surgery was advisable. Warpeha described her tumor as "progressive," meaning that it could enlarge over time in an unpredictable manner.

The circuit court denied defendants' post-trial motions, and this appeal followed.

Defendants first allege that plaintiff's counsel engaged in improper conduct throughout the trial and made inflammatory remarks during closing argument.

We preface our discussion of this issue by noting that a closing argument must be clearly improper and prejudicial to warrant reversal of the judgment. (Boasiako v. Checker Taxi Co. (1986), 140 Ill.App.3d 210, 94 Ill.Dec. 673, 488 N.E.2d 672.) A party may not claim error based on invited remarks, and errors not objected to at trial are deemed waived. (Tzystuck v. Chicago Transit Authority (1988), 124 Ill.2d 226, 124 Ill.Dec. 544, 529 N.E.2d 525; Daniels v. Standard Oil Realty Corp. (1986), 145 Ill.App.3d 363, 99 Ill.Dec. 284, 495 N.E.2d 1019.) In determining whether a party has been denied a fair trial because of the opposing party's closing argument, we must give considerable deference to the trial judge's decisions because he is in a superior position to assess the accuracy and impact of counsel's statements. Lawing v. Chicago Transit (1986), 142 Ill.App.3d 119, 96 Ill.Dec. 331, 491 N.E.2d 145.

Defendants complain of opposing counsel's reference to Dr. Robson as "Dr. Frankenstein" and of counsel's statement that Dr. Robson "lied" about his record keeping and "didn't even have the guts to tell you." Additionally, they take issue with counsel's remark that Dr. Robson's "ego as a great surgeon wouldn't allow him to speak the truth." Furthermore, counsel's reference to the "Hunchback of Notre Dame" and the "Phantom of the Opera" to illustrate the isolation plaintiff felt as a result of her disfigurement also is cited by defendants as inflammatory. Defendants further object to counsel's remark that "we are all in the grip of * * * the physician who has superior knowledge and can out-talk us and oftentimes out-think us."

We have carefully reviewed the closing arguments made by both parties. None of the remarks, when examined in their full context, rise to the level of reversible error. In fact, much of defendants' argument misrepresents the record, particularly concerning the "Dr. Frankenstein" reference.

Defendants also argue that counsel's remark that "if you find that Dr. Robson wasn't negligent * * * everybody's off the hook;" was an improper reference to insurance. We disagree.

The record reveals that, in explaining the concept of respondeat superior--the basis of any liability on the part of the hospital defendant--plaintiff's counsel stated:

"You will be instructed by the Court that Dr. Robson was an employee of the University of Chicago Hospitals and as such, if you find that Dr. Robson acted negligently in this case, then automatically University of Chicago as his employer is also liable.

On the other hand, if you find that Dr. Robson wasn't negligent as a matter of law in this case, everybody's off the hook. It's all or nothing."

Generally, in cases where the existence of insurance is noted in closing argument, counsel specifically mentions insurance or alludes to a third party who would be the source of funds in the event of liability. (See e.g., Panelle v. Chicago Transit Authority (1964), 31 Ill.2d 560, 202 N.E.2d 484; Kavanaugh v. Parret, (1942), 379...