O'Keefe v. Greenwald

• Decision Date: 21 May 1991
• Docket Number: No. 1-89-1255,1-89-1255
• Citation: 158 Ill.Dec. 342,574 N.E.2d 136,214 Ill.App.3d 926
• Parties: , 158 Ill.Dec. 342 David A. O'KEEFE, Plaintiff-Appellant, v. Michael S. GREENWALD, M.D., Orthopedic Surgeons, Ltd., and Robert C. Hamilton, M.D., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 136

574 N.E.2d 136

214 Ill.App.3d 926, 158 Ill.Dec. 342

David A. O'KEEFE, Plaintiff-Appellant, v. Michael S. GREENWALD, M.D., Orthopedic Surgeons, Ltd., and Robert C. Hamilton, M.D., Defendants-Appellees.

No. 1-89-1255.

Appellate Court of Illinois First District, Second Division.

May 21, 1991.

Susan E. Loggans & Associates (David A. Novoselsky, of counsel), Chicago, for plaintiff-appellant.

Lord, Bissell & Brook (Robert B. Austin, Hugh C. Griffin, Diane L. Jennings, of counsel), Chicago, for appellee, Robert C. Hamilton, M.D.

French, Kezelis & Kominiarek (Richard G. French and Russell P. Veldenz, of counsel), Chicago, for appellee, Michael S. Greenwald, M.D. and Orthopedic Surgeons, Ltd.

Justice COCCIA delivered the opinion of the court:

After plaintiff David A. O'Keefe was injured in a car accident, he brought a negligence action against the driver of the other car, and later executed a release pursuant to a settlement. Plaintiff then filed this action for subsequent medical malpractice against defendants Dr. Robert C. Hamilton, Dr. Michael Greenwald and Orthopedic Surgeons, Ltd., for failure to diagnose an injured hip. Additionally, he alleged that Dr. Hamilton unnecessarily performed surgery on his knee. Defendants raised the affirmative defense that the action was barred by plaintiff's release of the original tortfeasor.

The trial court directed a verdict at the close of plaintiff's case in favor of defendants as to the hip injury based on plaintiff's failure to show that defendants' negligence resulted in a separate and distinct injury. At the close of all the evidence, the jury returned a verdict in favor of Dr. Hamilton as to the knee injury. Other defendants were dismissed on the basis that claims against them were time-barred, and those defendants are not involved in this appeal.

On appeal, plaintiff contends that the court improperly shifted the burden of proof on the affirmative defense to plaintiff; that he presented sufficient evidence to permit the jury to decide the question of whether defendants' negligence caused a separate and distinct injury; and that the court erred in not permitting him to make an offer of proof.

On February 28, 1978, plaintiff was injured in an automobile accident in Streator, Illinois. Plaintiff was treated at a hospital for lacerations and a concussion. In May 1978, he was treated by defendant Dr. Greenwald. In November 1979, he was treated by defendant Dr. Hamilton.

On January 9, 1980, plaintiff filed a complaint against the driver of the other car, Jack Carpenter.

On February 27, 1982, Dr. Alvin M. Kanter, an orthopedic surgeon, examined plaintiff at the request of plaintiff's counsel. On that day, he examined plaintiff and took x-rays. On the same day, he showed plaintiff the x-rays and explained to him that his hip was fractured.

On February 27, 1982, Dr. Kanter wrote to plaintiff's counsel that x-rays showed severe degeneration of the hip joint and "healed posterior fracture-dislocation of the left hip with subsequent reduction, avascular necrosis of the femoral head and destruction of the entire hip joint." Dr. Kanter concluded: "I feel there is no question that this problem as it exists at present is related to the trauma that he described. The laceration of the left knee resulted in a fracture-dislocation of the left hip, which has gone on to the problem that he demonstrates at present." This letter was stamped "received" by plaintiff's counsel on March 2, 1982.

On March 4, 1982, plaintiff executed a release to Carpenter for $50,000. The release stated:

" * * * I, David O'Keefe * * * do hereby release, acquit and discharge said party [Carpenter] or parties and all other persons or corporations of and from all claims and demands, actions and causes of action, damages, cost, loss of service, expenses and compensation on account of, or in any way growing out of personal injuries, whether known or unknown to me at the present time, and property damage, resulting or to result from an occurrence that took place on or about the 28th day of February, 1978 * * *."

Two months later, on May 4, 1982, plaintiff filed this malpractice action against defendants. The complaint alleged that defendants failed to diagnose and treat the hip fracture. It alleged that plaintiff first discovered defendants' negligence on February 22, 1982.

Plaintiff's Second Amended Complaint alleged that plaintiff first discovered the negligence on May 3, 1982.

Plaintiff's Third Amended Complaint added the allegation that Dr. Hamilton unnecessarily performed knee surgery on plaintiff.

On January 20, 1983, Dr. Greenwald filed a motion to dismiss which maintained that plaintiff's claim was time-barred by the statute of limitations, and that plaintiff was barred from bringing this suit as a result of the general release executed in March 1982 to Carpenter, the original tortfeasor. On January 28, 1983, the court denied the motion to dismiss. Defendants' August 1984 motion for reconsideration of that order was also denied.

In September 1984, defendants renewed the motions to dismiss based on the statute of limitations and the release. On January 22, 1985, the motions were again denied.

In February and March, 1989, defendants filed answers and affirmative defenses to the Third Amended Complaint. The affirmative defenses again raised the issue of the release to the original tortfeasor barring an action against defendants as subsequent tortfeasors.

Just prior to trial, defendants moved for summary judgment based on the general release. The court reserved judgment in order to afford plaintiff an evidentiary hearing on the issue of whether defendants caused a separate and distinct injury rather than merely aggravating the original hip injury. The court stated that plaintiff's burden was to show a separate and distinct injury caused by defendants' alleged negligence.

Following plaintiff's opening statement at trial, defendants moved for a directed verdict on the basis of admissions that the injury was an aggravation, not a separate and distinct injury. The court denied the motion.

Plaintiff introduced the following evidence at trial.

On February 23, 1978, the day of the accident, plaintiff was treated for facial, head and knee lacerations, and a concussion, by Dr. Robert Jarrett at the hospital emergency room. Plaintiff testified that he complained of pain radiating from the knee up the leg to the hip. No hip x-rays were taken. Dr. Jarrett, a general surgeon, testified for plaintiff at trial that he treated plaintiff following the accident. No physical examination for, or diagnosis of, a hip dislocation or fracture was ever made.

In March 1978, plaintiff saw his personal physician, Dr. Samuel J. Goldhaber, a family practitioner. Plaintiff complained of knee, thigh and hip pain to Dr. Goldhaber. Dr. Goldhaber testified in an evidence deposition which was read at trial that he referred plaintiff to a physical therapist and later to defendant Dr. Greenwald.

Elsy McLemore, a physical therapist, testified for plaintiff that she treated him from March 17, 1978 through May 1978, at the request of Dr. Goldhaber. Plaintiff complained repeatedly of pain in the left leg, radiating into the hip. On March 17, 1978, McLemore wrote in her notes: "Patient sustained bruises to the left lower extremity in an accident recently, yesterday or day before. He reports he finds it difficult to bear weight on left lower extremity."

Plaintiff testified that he did not recall telling McLemore on March 17, 1978 about any "accident." He did recall, however, that one day he stood at home, felt severe leg pain in the leg and hip, which "popped or whatever, air crunch or something like that." He stumbled against an end table and "hit my leg a little bit." He was not sure, but he thought that might be what McLemore was referring to in her testimony.

In April 1978, plaintiff began seeing defendant Dr. Greenwald, an orthopedic surgeon. Plaintiff testified that he complained of continued pain in his leg up into his hip. Dr. Greenwald testified for plaintiff at trial that he ordered knee x-rays and an arthrogram of the left knee, which showed a small tear in the medial meniscus. Dr. Greenwald recommended conservative treatment for the knee. He did not diagnose a hip fracture. He believes the fracture occurred at the time of the original accident.

In November 1979, plaintiff began seeing defendant Dr. Hamilton. Plaintiff testified that he complained of leg and hip pain. Dr. Hamilton testified for plaintiff at trial as an adverse witness. He testified that in December 1979, he performed knee surgery on plaintiff. Dr. Hamilton believed the hip injury occurred at the time of the car accident. Plaintiff testified that after surgery, he continued to complain of pain in the upper thigh and knee joints.

Dr. Kanter testified for plaintiff at trial that he performed a total hip replacement on plaintiff. Furthermore, in his medical opinion the fracture occurred in the February 1978 automobile accident. Plaintiff had reported to him that his pain began at that time.

Dr. Martin Silverstein, an orthopedic surgeon, testified as an expert witness for plaintiff. Dr. Silverstein opined that defendants were negligent in not diagnosing the hip fracture, which he believed occurred at the time of the accident. Dr. Silverstein also explained that the condition called "avascular necrosis" occurred where the blood supply to the hip is interrupted "as a result of massive, major trauma to the hip joint." Unless measures are taken to correct it, the head of the femur dies. Plaintiff's "joint was left with one or multiple fragments within it which contributed to the overall degeneration of his hip."

Dr. Winfred Yaslow, an orthopedic surgeon, also testified as an expert witness for plaintiff. Dr. Yaslow opined that defendants were negligent in not diagnosing the hip fracture, which he believed occurred at the time of the...