Ittersagen v. Advocate Health & Hosps. Corp.

• Decision Date: 10 September 2020
• Docket Number: No. 1-19-0778,1-19-0778
• Citation: 175 N.E.3d 1099,2020 IL App (1st) 190778,448 Ill.Dec. 189
• Parties: Thomas ITTERSAGEN, Plaintiff-Appellant, v. ADVOCATE HEALTH AND HOSPITALS CORPORATION d/b/a Advocate Medical Group and Anita Thakadiyil, M.D., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 190778

175 N.E.3d 1099

448 Ill.Dec. 189

Thomas ITTERSAGEN, Plaintiff-Appellant,

v.ADVOCATE HEALTH AND HOSPITALS CORPORATION d/b/a Advocate Medical Group and Anita Thakadiyil, M.D., Defendants-Appellees.

No. 1-19-0778

Appellate Court of Illinois, First District, FOURTH DIVISION.

September 10, 2020

Jason R. Williams, and Carla A. Colaianni, of JR Williams Law, of Chicago, Illinois, for appellant.

Robert L. Larsen, of Cunningham, Meyer & Vedrine, P.C., of Warrenville, Illinois, for appellee.

JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Thomas Ittersagen brought a medical malpractice action in the circuit court of Cook County naming as defendants Advocate Health and Hospitals Corporation d/b/a Advocate Medical Group (Advocate Medical) and Dr. Anita Thakadiyil. Plaintiff claimed that defendants were negligent when Dr. Thakadiyil failed to diagnose him with sepsis, failed to refer him to the emergency room for treatment, and performed an incision and drainage in an outpatient setting without first administering intravenous fluids and antibiotics. Plaintiff further claimed that defendants' negligence caused bacteria and toxins to enter his system and toxic shock syndrome to develop, resulting in a below the knee amputation of both legs. After a jury trial, the trial court entered judgment on the jury's verdict in favor of defendants. Plaintiff now appeals, arguing the trial court committed numerous errors including (1) failing to dismiss a juror for cause, (2) granting a motion in limine preventing one of his experts from testifying as to Dr. Thakadiyil's standard of care, and (3) allowing defendant's expert to testify about his personal practices despite a motion in limine prohibiting such testimony. Plaintiff further argues that he was prejudiced by certain statements made by defense counsel during closing argument. For the reasons that follow, we affirm.¹

¶ 2 BACKGROUND

¶ 3 Motion to Strike

¶ 4 Prior to setting forth the facts of this case, we briefly address defendants' motion to strike plaintiff's statement of facts as set forth in their brief. Defendants argue that plaintiff's statement of facts violates Illinois Supreme Court Rule 341(h)(6) (eff. May 25, 2018), which requires that the statement of facts "contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment." According to defendants, plaintiff's statement of facts is argumentative, inserts matters that are of no relevance to this court's consideration of the issues, and results in a skewed and inaccurate presentation of the facts of the trial.

¶ 5 While defendants strenuously argue that plaintiff's statement of facts should be stricken (indeed five pages of their brief address this subject), we note that defendants themselves failed to set forth an appropriate statement of facts before this court. They too have essentially utilized the statement of facts section of their brief to argue instead of bringing a separate motion to strike. Accordingly, this court has not been provided an appropriate statement of facts from either party.

¶ 6 This court may strike a statement of facts when the improprieties hinder our review. John Crane Inc. v. Admiral Insurance Co. , 391 Ill. App. 3d 693, 698, 331 Ill.Dec. 412, 910 N.E.2d 1168 (2009). We are also within our rights to dismiss an appeal for failure to provide a complete statement of facts. Burmac Metal Finishing Co. v. West Bend Mutual Insurance Co. , 356 Ill. App. 3d 471, 478, 292 Ill.Dec. 235, 825 N.E.2d 1246 (2005). Here, the medical malpractice case, which was conducted over numerous days, involved multiple expert witnesses and technical subject matter. This was not a simple, straightforward case. Indeed, our review of the record reveals that this court was not provided with reports of proceedings from numerous days of the trial, including jury selection, which is relevant to our decision. Plaintiff's appendix further relied on the circuit court of Cook County's general statement of the contents of the record to create a table of contents. For example, it merely identifies in which portion of the record a "hearing" occurs, but does not indicate which witnesses testified that day. This general statement does not accurately identify the nature of the proceedings below and does not assist us in our review of the voluminous record.

¶ 7 Despite the fact we lack an appropriate statement of facts, we decline to grant the defendants' motion. As noted, the record is not complete and thus the absence of any pertinent portion of the record will be construed against the appellant. Foutch v. O'Bryant , 99 Ill. 2d 389, 392, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984). We do, however, have enough of the trial record to render determinations on the issues presented. Accordingly, we now turn to set forth those facts pertinent to this appeal. We note that the omission of any facts one would expect to find in a review of a medical malpractice action (e.g., voir dire , the testimony of plaintiff and his family members, and evidence regarding the damages sustained) is due to plaintiff's failure to provide us with a sufficient record.

¶ 8 Pretrial

¶ 9 The record demonstrates that this matter was contentiously litigated. The parties raised numerous motions in limine prior to trial. Of those motions in limine , only two are pertinent to this appeal. The first motion in limine in contention involved defendants' request to bar Dr. Hogarth, a pulmonologist and critical care expert, from rendering opinions as to the standard of care as it applied to Dr. Thakadiyil, a family practice physician. After hearing lengthy argument from counsel, the trial court granted the motion in limine and barred Dr. Hogarth from rendering an opinion on Dr. Thakadiyil's standard of care. The trial court, however, stated it would allow Dr. Hogarth to testify about his familiarity and diagnosis of sepsis, that plaintiff had sepsis at time of the office visit, that the incision and drainage procedure worsened plaintiff's condition, and that Dr. Thakadiyil's treatment caused plaintiff's injury. The trial court also granted defendant's motion in limine and did not allow personal practice testimony from any of the witnesses on direct.

¶ 10 Trial

¶ 11 The matter then proceeded to a jury trial where the following evidence was adduced. On July 8, 2010, at 11 a.m., plaintiff, a diabetic, was seen by Dr. Thakadiyil, a family practice physician, at her office. Plaintiff's chief complaint was a carbuncle (an infection of the hair follicles) in his left armpit, body aches, and a general unwell feeling. Plaintiff's vital signs were taken by a medical assistant. He had a fever of 101.1 degrees, a heart rate of 112, a respiratory rate of 14, and a blood pressure of 102/68. Dr. Thakadiyil then conducted an overall physical examination of plaintiff and discussed with plaintiff his medical history and current condition. Plaintiff's medical chart revealed a history of elevated heart rate with infection. After considering plaintiff's entire clinical presentation and medical history, Dr. Thakadiyil determined the best course of action was to perform an incision and drainage on the carbuncle. With plaintiff's permission she made a small incision in the carbuncle with a scalpel, drained the carbuncle of pus, took a culture of the infected area, and packed and dressed the wound. Dr. Thakadiyil wrote plaintiff a prescription for Bactrim, an oral antibiotic, and instructed him to follow up with her in 48 hours.

¶ 12 After plaintiff left Dr. Thakadiyil's office, he went to Walgreens to have the prescription filled. Then, instead of waiting for the prescription at the pharmacy, plaintiff went to Burger King for lunch. While at Burger King, plaintiff vomited and began feeling more unwell. He then went home.

¶ 13 At 2 p.m., plaintiff went to the emergency room at Riverside Medical Center. At that time, plaintiff's heart rate was 162 beats per minute, his blood pressure was 98/54, his respiratory rate was 22, and he had a fever of 103.2 degrees. Plaintiff was experiencing nausea, vomiting, headaches, and abdominal pain. Plaintiff was in septic shock and treated with intravenous fluids and the antibiotic vancomycin. At 8 p.m., plaintiff's condition worsened. Lab results revealed that he was experiencing renal failure and he was put on vasopressors to maintain his blood pressure. He was put on a ventilator at 10 p.m. and at 12 a.m. he began dialysis.

¶ 14 The following day, plaintiff was formally diagnosed with toxic shock syndrome. By 11 a.m., the oxygen saturation level in his feet was 12% and they appeared dusky in color and were cold. That afternoon, plaintiff's condition began to improve, however, his legs developed gangrene and had to be amputated below the knee.

¶ 15 Plaintiff's Expert Witnesses

¶ 16 Regarding a family practice physician's standard of care, plaintiff introduced the expert testimony of Dr. Bernard Ewigman, a family practice physician. Upon his review of the medical records and depositions in this case, Dr. Ewigman opined that Dr. Thakadiyil deviated from the standard of care in two ways: (1) when she failed to diagnose plaintiff with sepsis and (2) when she performed the incision and drainage procedure and sent plaintiff home instead of to the emergency room. According to Dr. Ewigman, plaintiff's presentation of symptoms at 11 a.m. demonstrated that plaintiff was suffering from a systemic infection and should have raised concerns in Dr. Thakadiyil that plaintiff had sepsis. Dr. Ewigman explained that, at the time Dr. Thakadiyil treated plaintiff, the medical community was guided by the systemic inflammatory response syndrome (SIRS) criteria to determine whether an individual had sepsis. The SIRS criteria are as follows: (1) heart rate above 90 beats per minute; (2) respiratory rate above 20; (3) temperature above 100.9; and (4) a white blood cell count. If two of the criteria...