Jones v. Rallos
| Decision Date | 25 June 2008 |
| Docket Number | No. 1-04-2979.,1-04-2979. |
| Citation | 890 N.E.2d 1190 |
| Parties | Mark JONES, Plaintiff-Appellee, v. Ophelia RALLOS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, Brian C. Rocca, Scott L. Howie and Heath Sherman, of counsel), for Appellant.
Michael R. Panter & Associates, of Chicago (Michael R. Panter and Charles L. Cannon, III of counsel) and Law Office of Harry C. Lee, of Chicago (Harry C. Lee, of counsel), for Appellee.
Following a jury trial, defendant Ophelia Rallos, M.D., was found liable for medical malpractice with regard to care rendered to plaintiff Mark Jones connected to an apparently false diagnosis that Jones tested positive for the human immunodeficiency virus (HIV). The jury awarded plaintiff damages in the amount of $350,000 and the circuit court denied defendant's posttrial motion. Defendant then appealed.
On appeal, defendant contended that the circuit court erred in denying her motion for a directed verdict where plaintiff was unable to establish the burden of proof on the issue of proximate cause, and in barring evidence of plaintiff's failure to mitigate damages and refusing jury instructions on mitigation of damages. Defendant also contended that the circuit court erred in various evidentiary rulings, including denying plaintiff's motion to bar questions relating to her failing the board certification examination and limiting evidence of plaintiff's criminal behavior.
In a published opinion, a majority of this court reversed and remanded for a new trial. Jones v. Rallos, 373 Ill.App.3d 439, 311 Ill.Dec. 450, 869 N.E.2d 124 (2006). In doing so, we held that the trial court committed reversible error in permitting plaintiff to elicit evidence that the defendant physician had failed the board-certification examination for internal medicine. Jones v. Rallos, 373 Ill.App.3d at 447, 311 Ill.Dec. 450, 869 N.E.2d 124. We then addressed several issues raised in the appeal which would likely arise on retrial. Justice Campbell filed a dissent. Jones v. Rallos, 373 Ill.App.3d at 454-57, 311 Ill.Dec. 450, 869 N.E.2d 124 (Campbell, J., dissenting).
Plaintiff filed a petition for rehearing which was denied. Plaintiff then filed a petition for leave to appeal. While the supreme court denied the petition for leave to appeal, the court also entered the following order:
Jones v. Rallos, 225 Ill.2d 636, 314 Ill. Dec. 13, 873 N.E.2d 943 (2007).
Pursuant to the supervisory order, we vacated our previous judgment in this case. In reconsidering our judgment, for the reasons explained herein, we now affirm the jury's verdict.
I. BACKGROUND
The record shows that in 1992, Dr. Rallos, a specialist in internal medicine, was employed by Family Health Specialists and had admitting privileges at Rush Presbyterian St. Luke's Hospital. In July 1992, plaintiff saw Dr. Rallos for a nonhealing ulcer in his mouth and a history of genital warts. Dr. Rallos ordered a syphilis test and referred plaintiff to an oral surgeon. On August 25, 1992, plaintiff returned to Dr. Rallos with symptoms of "wooziness" and a sore on his penis with penile discharge. Dr. Rallos ordered a complete examination for sexually transmitted diseases, including HIV.
HIV antibody testing was performed by Damon Labs, which forwarded its report to Dr. Rallos. The report contained an HIV ELISA screening test that showed a positive for HIV antibodies, which was verified by repeat analysis. The report also contained the results of a confirmatory test called the Western Blot Essay. The lab reported an "indeterminate" result on this test and provided the following instructions for interpreting the results of the essay:
Dr. Rallos noted that the scores reported on the Western Blot Essay found bands at P24 and gp 160 with an intensity of 1.
Damon Labs also performed a recombinant DNA test, which reported a negative result. Dr. Rallos had not heard of this test. The lab documentation stated the following:
On September 15, 1992, Dr. Rallos told plaintiff that he had tested positive for HIV. Dr. Rallos diagnosed plaintiff with HIV based on the results of the ELISA screening test and the Western Blot Essay. Dr. Rallos made recommendations for further care and counseling and ordered baseline tests to measure plaintiff's general health. Dr. Rallos testified that plaintiff was quiet and receptive at the time. Dr. Rallos did not restrict any of plaintiff's activities, except for sexual contacts.
Thereafter, Dr. Rallos followed plaintiff quarterly to monitor his emotional well-being and CD4 count. Dr. Rallos testified that both factors are important. The CD4 count is important because a number below 500 indicates that a patient is deteriorating. If a patient remains largely asymptomatic and the CD4 count is above 500, monitoring should be sufficient. If the CD4 count falls below 500, the patient should be referred to an infectious diseases specialist.
Dr. Rallos testified that in October 1992, plaintiff reported that he was not depressed and that plaintiff had a CD4 count of 955. Dr. Rallos followed up with plaintiff again on December 22, 1992, after plaintiff dislocated his shoulder playing football. Dr. Rallos testified that plaintiff denied being depressed at that time and had a CD4 count of 965. Dr. Rallos referred plaintiff to an orthopedist. Dr. Rallos testified that she also referred plaintiff to an infectious diseases specialist at Rush Presbyterian St. Luke's Hospital for a second opinion because she did not have a great deal of experience with HIV patients. Defendant testified that she provided the address and telephone number for the infectious diseases specialist on the referral form. The referral was good until January 22, 1993. Dr. Rallos testified that she gave the referral form to a nurse and did not know whether the nurse gave plaintiff the form.
Dr. Rallos knew that plaintiff followed through on the referral to the orthopedist because she received a letter confirming it. Dr. Rallos assumed that plaintiff followed through on the referral to the infectious diseases specialist, but did not ask plaintiff about it. Dr. Rallos did not hear from the consulting specialist.
Dr. Rallos saw plaintiff again on March 30, 1993, and observed no change in his condition. Dr. Rallos testified that during a July 27, 1993 appointment, plaintiff was upset due to his mother's death, but did not express any emotional difficulty regarding the HIV diagnosis.
Dr. Rallos' notes show that on November 9, 1993, plaintiff was doing well clinically, but that his CD4 count had fallen to 344. Dr. Rallos then referred plaintiff to Dr. Russell Petrak, an infectious diseases specialist, for drug therapy "ASAP." This was the last time that Dr. Rallos treated plaintiff.
Dr. Petrak, who first saw plaintiff on November 15, 1993, testified that he also diagnosed plaintiff as HIV positive. Dr. Petrak was unfamiliar with the recombinant DNA test. Dr. Petrak prescribed AZT and told plaintiff that he would be retested at some point. At later appointments, Dr. Petrak never found plaintiff to be depressed or experiencing emotional problems, though he noted on April 25, 1994, that plaintiff was "stressed out mentally" because his daily and recreational activities were decreased after breaking an arm playing basketball.
Dr. Petrak testified that his notes for May 2, 1994, showed a CD4 count of 918. Dr. Petrak then questioned the prior diagnosis, given the sudden rise in the CD4 count. Dr. Petrak sent plaintiff for follow-up testing, which showed a negative ELISA test and an indeterminate Western Blot Essay. Dr. Petrak believed that the 1992 test was a false positive. Dr. Petrak told plaintiff that the serology showed that he was not HIV positive and discontinued the AZT treatment. Dr. Petrak referred plaintiff back to Dr. Rallos and recommended a follow-up test in November 1994. Dr. Petrak also wrote to Dr. Rallos regarding plaintiff's case. Plaintiff never received follow-up testing from Dr. Rallos or Dr. Petrak.
Dr. Jay Matthew Ehrlich, an associate medical director in clinical safety for Abbott Laboratories, testified that he worked at Family Health Specialists from 1993 to 1996 as a medical resident. Dr. Ehrlich performed a physical...
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