Konewko v. Advocate Health & Hosps. Corp.
| Citation | 180 N.E.3d 179,2020 IL App (2d) 190684,449 Ill.Dec. 765 |
| Decision Date | 07 December 2020 |
| Docket Number | No. 2-19-0684,2-19-0684 |
| Parties | Michael KONEWKO, Plaintiff-Appellant, v. ADVOCATE HEALTH AND HOSPITALS CORPORATION, d/b/a Advocate Good Samaritan Hospital, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Robert G. Black, of Law Offices of Robert G. Black, P.C., of Naperville, and Michael Cetina, of Walsh, Knippen & Cetina, Chtrd., of Wheaton, for appellant.
Matthew L. Johnson, David M. Macksey, and Caroline K. Vickrey, of Johnson & Bell, Ltd., of Chicago, for appellee.
¶ 1 Plaintiff, Michael Konewko, filed a medical malpractice suit against defendant, Advocate Health and Hospitals Corporation, d/b/a Advocate Good Samaritan Hospital (Advocate), for injuries resulting from a commode incident. Following a nine-day trial, with numerous experts addressing both the standard of care and proximate cause, the jury returned a verdict for Advocate. The jury also answered a special interrogatory in the negative, finding that Advocate's agents did not act negligently. Konewko moved for a new trial, based on Advocate's improper closing argument. Advocate had repeatedly painted its agent, nurse Lisa Begler, as a sympathetic figure who would have to work years to earn the amount of money that Konewko requested in damages. The court denied the motion, in large part because Begler was not a party to the case. Konewko also moved for a judgment notwithstanding the verdict (JNOV) or a new trial, based on the manifest weight of the evidence, and the trial court denied the motions.
¶ 2 Konewko appeals, arguing as he did in his posttrial motion. Primarily, he asserts that he is entitled to a new trial due to Advocate's repeated improper comments during closing argument. We agree. The evidence in this case was closely balanced, making it highly probable that the repeated improper comments during closing argument compromised the integrity of the verdict. See Koonce v. Pacilio , 307 Ill. App. 3d 449, 455, 241 Ill.Dec. 57, 718 N.E.2d 628 (1999). The comments were intended to inflame the passions of the jury, even though the comments concerned Advocate's agent, rather than Advocate itself. The trial court abused its discretion when it found that the comments could not warrant a new trial, because they pertained to a party's agent, rather than the party itself. We reject Konewko's argument for a JNOV, and we will not address Konewko's alternative argument for seeking a new trial, based on the manifest weight of the evidence. We reverse and remand for a new trial.
¶ 4 On October 28, 2010, Konewko, then age 57, underwent back surgery at Advocate, which involved a laminectomy and the removal of a synovial cyst (first surgery). Following the first surgery, he experienced increased leg weakness. On October 30, 2010, while Konewko was still an inpatient at the hospital, Begler was helping Konewko get to the commode when Konewko's bottom hit the commode in an uncontrolled descent. This caused him great pain. His leg weakness increased to the point of feeling "dead." On October 31, 2010, Konewko underwent a second surgery to investigate whether a screw was pressing on his nerves and causing the leg weakness (second surgery or revision surgery). During the second surgery, the doctor removed a screw, and, over time, Konewko's leg strength increased. Konewko was then sent to Marianjoy Rehabilitation clinic, where he had to learn to walk again. At Marianjoy, he suffered a deep vein thrombosis (DVT) blood clot and, on November 19, 2010, an infection. The infection required a third, emergency surgery. Shortly after the third surgery, the hospital released Konewko as an outpatient, where he continued to improve. One year after the first surgery, Konewko's leg strength was rated a four-plus out of five.
¶ 5 Konewko filed a medical-malpractice suit against Advocate. His theory of the case was that Advocate's agent, Begler, did not meet the standard of care in that she did not (1) use an assistive device, such as a rolling walker or a gait belt, in getting Konewko to the commode; (2) involve a second person while getting Konewko to the commode; or (3) instruct and cue Konewko during his attempt to sit on the commode. As a result of this conduct, Konewko fell onto the commode. Konewko cried out in pain and felt his "hardware" move. The fall necessitated a second surgery to ensure that the hardware had not moved and it caused additional leg weakness. Instead of the four hospital days and 18 outpatient physical therapy visits predicted heading into the first surgery, Konewko endured a second surgery and was sent to Marianjoy Rehabilitation Center to recover for 20 to 25 days. Moreover, Konewko has experienced a reduced ability to participate in his former activities. One year after the first surgery, Konewko had decreased pain but increased weakness. Although his strength was rated a four-plus out of five, his activities continued to be restricted. (Konewko conceded that the DVT blood clot, the infection, and the third surgery might have resulted from the first surgery and not the second surgery or the commode incident.)
¶ 6 Advocate's theory of the case differed. That is, Begler met the standard of care in getting Konewko to the commode and in instructing and cuing him to sit. In fact, she did use a walker, and she did cue him to sit. Konewko did not fall onto the commode. Rather, he was able to assume a squatting position before he descended in a "hard sit " onto the commode. Moreover, the second surgery was not occasioned by Konewko's descent onto the commode. Rather, Konewko's leg weakness, which caused the uncontrolled descent in the first place, was a sign that the first surgery had not been entirely successful. The first surgery likely caused nerve damage and, correspondingly, leg weakness. This is a known risk of the first surgery, because it is difficult to extract a cyst without damaging a nerve. Also, the nerve damage could have been caused by an infection, the symptoms of which Konewko began experiencing before the commode incident. Moreover, post-therapy, Konewko experienced an increased ability to participate in activity, as compared to his presurgery state, when pain precluded him from walking more than 75 to 100 meters. It was unrealistic to expect to return to the active state he enjoyed as a younger man prior to his back problems.
¶ 7 Before trial, the trial court ruled on the parties' motions in limine . Specifically, the court "barr[ed] any attorney or witness from making reference to, comments about, [and] barr[ed] any evidence which relates to the wealth, poverty or financial status of any party including reference to any other Advocate facility for purposes of showing wealth of the party." It also found that "[i]t is prejudicial error to ask a jury to put itself in the position of a party." The case proceeded to trial.
¶ 9 Konewko testified that, prior to his initial back problems at age 57 in August 2010, he had been an active person. He enjoyed bowling, golfing, family volleyball, performing lawn and home maintenance, long walks with his dog, and bird hunting with his dog. He worked 60 hours per week as a general practice attorney. Sometimes, in preparing for a trial, he worked 80 hours per week.
¶ 10 In August 2010, Konewko and his wife were staining their deck. His lower back began to "bother" him, and he went to see a chiropractor. At first, he obtained relief. However, in September 2010, he began to experience pain run down his front left thigh. The pain kept getting worse. It interfered with walking and standing.
¶ 11 On October 13, 2010, Konewko obtained an MRI on the advice of his primary care physician. Based on the results of the MRI, Konewko was referred to Dr. Nicholas Mataragas. After the consultation with Dr. Mataragas on October 20, 2010, it was decided that surgery was the best option. Konewko's pain was so bad that he could walk only very short distances, like 75 to 100 meters.
¶ 12 Dr. Mataragas testified that the MRI showed that Konewko had a "very large" synovial cyst pushing on the nerves of his spine. Konewko also had spinal stenosis , which is a pinching of the nerves, and spondylolisthesis, which is an instability in the spine where one bone shifts forward relative to another.
¶ 13 Following the MRI, Konewko decided to move forward with surgery. It would involve a laminectomy and a fusion, using screws and rods, located at the L2 to L5 portion of the spine. The lamina is a wing-shaped piece of bone covering the posterior aspect of the nerves. In a laminectomy, the doctor removes the back portion of the lamina enclosing the nerves, allowing the nerves to migrate posteriorly and "unsquish" themselves. After removing the lamina, the doctor can reach the synovial cyst. Finally, the fusion is necessary to provide stability to the spine following the removal of the lamina.
¶ 14 In Dr. Mataragas's view, the October 28, 2010, surgery went smoothly; nothing unexpected occurred. During the surgery, the surgical team monitored Konewko's nerves, and it did not appear that any "problem or consequence with the nerves" occurred. He expected Konewko to remain in the hospital for three to four days, before participating in 18 outpatient physical-therapy sessions. With any spinal surgery, however, even if the surgery goes as planned, the risks are infection, bleeding, paralysis, nerve-root injury, death, failure of fusion, failure of improvement, and the need for further surgery.
To continue reading
Request your trial