Krklus v. Stanley, 1-03-3605.

• Decision Date: 28 July 2005
• Docket Number: No. 1-03-3605.,1-03-3605.
• Citation: 833 N.E.2d 952
• Parties: Biljana KRKLUS, Administrator of the Estate of Frank Krklus, Deceased, Plaintiff-Appellant, v. Robert STANLEY and Rush Prudential Health Plans, Defendants-Appellees.
• Court: Illinois Supreme Court

833 N.E.2d 952

Biljana KRKLUS, Administrator of the Estate of Frank Krklus, Deceased, Plaintiff-Appellant, v. Robert STANLEY and Rush Prudential Health Plans, Defendants-Appellees.

No. 1-03-3605.

Appellate Court of Illinois, First District, Fourth Division.

July 28, 2005.

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Robert A. Clifford, Sheri L. Tarr, Clifford Law Offices, Chicago, (Robert P. Sheridan, of counsel), for Appellant.

Edward M. Kay, John M. Hynes, Paula M. Carstensen, Clausen Miller, P.C., Chicago, for Appellees.

Justice GREIMAN delivered the opinion of the court:

Plaintiff Biljana Krklus (plaintiff), as the administrator of the estate of her late husband Frank Krklus (Krklus), brought a medical malpractice action against defendants Dr. Robert Stanley and Rush Prudential Health Plans, Stanley's employer. Plaintiff alleged that Stanley negligently failed to diagnose Krklus' aortic dissection which ruptured, causing his death. Defendants denied liability and raised comparative negligence as an affirmative defense. Defendants maintained that Krklus was negligent in failing to follow Stanley's instructions to take medication to bring down his high blood pressure, misinforming Stanley that he was taking his prescribed medication, smoking cigarettes and failing to adequately identify the site of his pain. Following a trial, the trial court entered judgment on a jury verdict for defendants.

On appeal, plaintiff contends (1) that, because comparative negligence was not a proper defense, the trial court erred in allowing defendants to introduce evidence that Krklus failed to follow Stanley's orders to take his blood pressure medication and that Krklus smoked cigarettes; (2) that the trial court erred in limiting the scope of plaintiff's cross-examination of Stanley concerning his postmortem alteration of Krklus' medical records; (3) that the trial court erred in failing to prohibit defendants from engaging in certain acts of misconduct; and (4) that the trial court erred in instructing the jury as to the defense of sole proximate cause and the affirmative defense of comparative negligence. Plaintiff maintains that, because this is a close case, the trial court's errors, in the aggregate, warrant a new trial.

Krklus first visited Stanley, an internal medicine physician employed by Rush Prudential Health Plans, in April 1996, following an elbow injury. During his next visit for the same injury in July 1996, Stanley diagnosed Krklus with hypertension. He prescribed atenolol, a medication designed to reduce blood pressure, and asked that Krklus return a week later so that Stanley could determine whether the medication was effective. A week later, Krklus' blood pressure was somewhat lower. At another visit in September 1996, Krklus reported that he was regularly taking his medication and Stanley determined that Krklus' blood pressure had substantially improved.

Krklus next visited Stanley's office on May 4, 1998, following another injury. Prior to seeing Stanley, Krklus was examined by nurse Christine Falasco. Krklus indicated to Falasco that he had stopped taking his medication more than a year prior to the visit. Stanley determined that Krklus' blood pressure was extremely elevated and prescribed a higher dosage of atenolol and a second blood pressure medication, Dyazide. The following day, Krklus returned to Stanley's office. Stanley determined that Krklus' blood pressure had gone down. At the visit, Krklus indicated that he had previously smoked a half a pack of cigarettes a day but that he had quit a month before. Krklus failed to return for his scheduled follow-up visit a month later.

On Saturday, April 3, 1999, Krklus began to feel ill after cleaning a friend's car. According to the testimony of plaintiff, Krklus' wife, and Christina Krklus, Krklus' daughter, who was home for the weekend, Krklus complained of nausea, a headache and chest pain. By April 9, 1999, Krklus' condition had not improved. Plaintiff called Stanley's office and spoke with nurse Mary Teister. Plaintiff indicated that she believed Krklus' blood pressure was elevated and that he was experiencing chest pain, stomach pain, a decreased appetite, an elevated temperature and diarrhea. Plaintiff told Teister that she suspected Krklus' condition was related to his inhalation of fumes from the cleaning solution he had used to clean his friend's car. Teister recorded the information reported by plaintiff in Krklus' medical chart. Teister offered Krklus an appointment later that day but he chose to make an appointment for the following morning.

On the morning of April 10, 1999, Teister examined and questioned Krklus regarding his symptoms. Krklus indicated that he was experiencing pain below his ribcage, in his abdomen and in his sides and lower back but did not indicate that he was experiencing chest pain. Teister recorded this information in his chart. While Krklus was being examined by Teister, plaintiff reported to Falasco that he had not taken his blood pressure medication in four weeks and that he was experiencing chest pain radiating to his back, profuse night sweats, fatigue and dizziness. Falasco recorded the information provided by plaintiff in Krklus' chart. During his examination, Krklus reported to Stanley that he had been regularly taking his blood pressure medication and that he was experiencing epigastric, or upper abdominal, discomfort but denied that he was experiencing chest pain. An electrocardiogram (EKG) performed on Krklus was normal. Stanley diagnosed Krklus as suffering from gastritis, prescribed Maalox and Pepcid and advised Krklus to avoid alcohol and aspirin and to return in two to four weeks.

On April 16, 1999, plaintiff again contacted Stanley's office, indicating that Krklus' sinus congestion had worsened and requesting a referral to an ear, nose and throat doctor. Teister told plaintiff that in order to be referred to a specialist, Krklus was required to return to the office for another appointment.

Because his condition had worsened, Krklus returned to Stanley's office on April 19, 1999. Prior to being examined, Krklus reported to medical assistant Nina Patel that he was experiencing chest pain. During his examination by Stanley, Krklus again reported epigastric pain but did not report chest pain. Stanley testified that during the April 19, 1999, examination, Krklus reported experiencing similar symptoms to those he reported on April 10, 1999; however, his respiratory symptoms appeared to be more severe. Stanley observed that Krklus was suffering from an elevated blood pressure, a cough and postnasal drip and a knot-like pain in the epigastrium. Stanley ordered a complete blood count, which showed a reduction in the amount of hemoglobin in Krklus' blood but considered the results unremarkable. The results of a second EKG were normal. Stanley also administered a tuberculosis test. Stanley instructed Krklus to continue taking Pepcid and his blood pressure medication and to return within 48 hours so that his nurse could read the results of his tuberculosis test. Stanley also prescribed antibiotics and cough syrup.

According to plaintiff and Krklus' son, Jimmy Krklus, Krklus' condition continued to deteriorate. On the evening of April 20, 1999, Jimmy went to his parents' house for dinner. When he arrived, Jimmy noticed that Krklus was pale, clammy and feverish. Krklus indicated that he was experiencing stomach, chest and lower-back pain. Jimmy testified that Krklus was unable to eat his dinner and went to bed early that evening. When plaintiff went to bed later on the evening of April 20, 1999, she found Krklus dead. During the weeks before his death, Krklus continued to work, missing only a few days, and appeared for jury duty between the manifestation of his symptoms and his death.

An autopsy performed on Krklus' body showed that he had died of a massive left hemothorax caused by an aortic dissection. An aortic dissection occurs when the innermost layer of the aortic lining ruptures, allowing blood to seep into the area between the outer layers. In this case, the collecting blood caused a second tear, or a rupture, in the outer lining of the aorta and collected in Krklus' pleural cavity, causing his death.

While Jimmy testified that his father was an occasional smoker who never bought a pack of cigarettes and Christina testified that she had never seen her father smoke, Krklus' medical records indicated a history of smoking. The records suggested that Krklus had smoked a half a pack of cigarettes a day for 10 years but none of the witnesses could exactly quantify the amount of cigarettes or how regularly Krklus smoked.

The records from the Walgreens pharmacy where plaintiff testified that her family filled all of its prescriptions showed that Krklus first filled his blood pressure medication prescription on July 31, 1996, after he was diagnosed with hypertension. He refilled his prescription on August 29, 1996, but did not refill it again until May 4, 1998, the date of another appointment with Stanley. Krklus refilled his prescription again on May 24, 1998, June 25, 1998, July 27, 1998, and August 25, 1998. He did not refill his prescription again until April 10, 1999, eight months later.

Plaintiff's expert Adam Robert Silverman, an internal medicine physician, testified that the classic symptom of aortic dissection is ripping abdominal or chest pain that radiates to the patient's back. Other symptoms may include heart palpitations, shortness of breath, pain in an arm or leg, profuse sweating, cough, nausea, diarrhea and epigastric pain. Aortic dissection can be detected by several methods, including by CT scan, and can be treated medically or surgically. Silverman testified that hypertension "may be associated" with aortic dissection. Silverman further testified that he did not consider hypertension a predisposing factor for aortic dissection because "some patients can have...