Leonardi v. Loyola University of Chicago, 1-90-2629

• Decision Date: 30 December 1993
• Docket Number: No. 1-90-2629,1-90-2629
• Parties: , 199 Ill.Dec. 13 Rose D. LEONARDI, Administrator of the Estate of Michela Lopez, Deceased; and Francisco Lopez, Individually, Plaintiffs-Appellants, v. LOYOLA UNIVERSITY OF CHICAGO, a corporation; Kanteerava Balasaraswathi; and Adel El-Etr, M.D. & Associates, S.C., a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 809

633 N.E.2d 809

262 Ill.App.3d 411, 199 Ill.Dec. 13

Rose D. LEONARDI, Administrator of the Estate of Michela Lopez, Deceased; and Francisco Lopez Individually, Plaintiffs-Appellants, v. LOYOLA UNIVERSITY OF CHICAGO, a corporation; Kanteerava Balasaraswathi; and Adel El-Etr, M.D. &amp Associates, S.C., a corporation Defendants-Appellees.

No. 1-90-2629.

Appellate Court of Illinois First District, Fourth Division.

Dec. 30, 1993.

Rehearing Denied May 6, 1994.

Power, Rogers & Lavin, Chicago (Terrence J. Lavin, David A. Novoselsky, of counsel), for plaintiffs-appellants.

Baker & McKenzie, Chicago (Francis D. Morrissey, Thomas F. Tobin, Michael A. Pollard, John A. Krivicich, and Michael T. Pfau, of counsel), for defendant-appellee Loyola University of Chicago.

Cassiday, Schade & Gloor, Chicago (Michael J. Morrissey, Lynn D. Dowd and Michael M. Tannen, of counsel), for defendants-appellees Kanteerava Balasaraswathi, M.D. and Adel El-Etr, M.D. & Associates, S.C. Justice JOHNSON delivered the opinion of the court:

Plaintiffs brought this medical malpractice action against defendants in the circuit court of Cook County. Following trial, the trial court entered judgment on the verdict which the jury returned in favor of defendants. Plaintiffs appeal claiming (1) the trial court erred in allowing defendants to present evidence of conduct committed by an individual not a party at trial; (2) the trial court improperly tendered to the jury an instruction on sole proximate cause; (3) the trial court erred in permitting defendants to improperly cross-examine plaintiffs' medical experts; and (4) the jury's verdict was against the manifest weight of the evidence.

We affirm.

On September 1, 1979, 36-year-old Michela Lopez was admitted to Foster G. McGaw Hospital at Loyola University Medical Center at the request of her attending physician, Dr. Thomas Tierney. Upon admission, Mrs. Lopez was in stable condition and was examined by Dr. Roberta Karlman, who determined that she was approximately 7 months pregnant. Mrs. Lopez was considered a high risk obstetrical patient given the gestational age of the fetus, and because her water bag had ruptured prematurely.

Later that evening, a hospital nurse noticed heavy bleeding from Mrs. Lopez's vagina, and paged a doctor. Dr. Joseph Coughlin, a resident, responded to the page and determined that Mrs. Lopez was hemorrhaging. Dr. John Gallagher, a senior resident who arrived moments after Dr. Coughlin, had Mrs. Lopez transferred to the labor room at 9:35 p.m. There, Mrs. Lopez went into hypovolemic shock after losing additional amounts of blood. Mrs. Lopez was given intravenous fluids and her condition was stabilized.

Meanwhile, Dr. Tierney was not present at the hospital when Mrs. Lopez was admitted, but instructed hospital staff by telephone not to perform a Cesarean section until he arrived. Dr. Tierney also ordered Dr. Gallagher to perform a vaginal inspection, the results of which confirmed the existence of a placenta previa, an abnormal positioning of the placenta in the uterus. Later, when Dr. Tierney arrived at the hospital, he performed a Cesarean section on Mrs. Lopez. At 9:58 p.m., Mrs. Lopez gave birth to a 2-pound baby girl. Thereafter, Dr. Tierney attempted to remove the placenta and massive bleeding occurred. During removal of the placenta, Dr. Tierney discovered a placenta accreta, an abnormal adherence of the placenta to the uterine wall. He performed a hysterectomy which was medically required due to the placenta previa. Following the surgery, Mrs. Lopez's blood pressure and pulse were both stable, and her urine output was satisfactory. Mrs. Lopez was then transferred to the recovery room, where she was given supplemental oxygen. Mrs. Lopez was in critical, but stable condition.

On September 4, 1979, at 6 a.m., Dr. Karlman ordered that Mrs. Lopez's oxygen be removed and that her arterial blood gases be assessed 1/2 hour later. A blood gas assessment is used to evaluate the gas exchange in a patient's lungs and the acid in his or her blood. Up until this time, Mrs. Lopez exhibited no signs of pulmonary embolus, a condition which occurs when a person develops a blood clot which can impede proper blood flow.

Later that morning, at approximately 9:30 a.m., Mrs. Lopez was restless and complained of abdominal pain. These symptoms were consistent with a patient having recently undergone a large abdominal procedure and experienced massive blood loss. At 10:30 a.m., a blood test revealed that Mrs. Lopez was experiencing respiratory difficulties. Mrs. Lopez was given supplemental oxygen and her blood pressure registered normal.

At approximately 11 a.m., Mrs. Lopez's blood pressure dropped significantly and she then was examined by Drs. John Gianopoulos and John Payne. At 11:35 a.m., Mrs. Lopez suffered a respiratory arrest. The doctors believed Mrs. Lopez was also suffering a pulmonary embolus, for which an embolectomy was the proper treatment. Minutes later, Mrs. Lopez was taken to the operating room where Dr. Roque Pifarre performed a pulmonary embolectomy. This procedure entailed breaking Mrs. Lopez's sternum and massaging the blood clot which lodged near the beginning of the pulmonary artery and impeded blood flow to the arteries. Mrs. Lopez suffered irreversible brain damage and lived in a nursing home until her death on January 25, 1985.

On July 25, 1989, plaintiffs filed a fourth amended complaint against several defendants, including Dr. Tierney and the named defendants, alleging they were negligent in their care and treatment of Mrs. Lopez. Plaintiffs further alleged that defendants' negligence was the proximate cause of Mrs. Lopez's death. Prior to trial, Dr. Tierney passed away and was later dismissed from the lawsuit after his estate settled with the plaintiffs. After trial, the jury returned its verdict in favor of defendants.

On appeal, plaintiffs initially challenge the trial court's rulings with respect to the admission of evidence concerning Dr. Tierney. Prior to trial, the trial court denied plaintiffs' motion in limine to bar introduction of evidence regarding the negligence of any person other than the named defendants. At trial, defendants presented evidence of Dr. Tierney's conduct, and also questioned other doctors about his duties and responsibilities as Mrs. Lopez's attending physician. Plaintiffs contend that this evidence was irrelevant, and also that the trial court improperly declined to strike defendants' hypothetical question regarding Dr. Tierney's conduct.

Both parties acknowledge that relevant evidence is that which tends to prove a fact in issue more or less probable. (Marut v. Costello (1965), 34 Ill.2d 125, 128, 214 N.E.2d 768.) Whether evidence is relevant is a question which rests within the discretion of the trial court whose decision should remain undisturbed unless an abuse of discretion has been shown. (O'Brien v. Hertl (1992), 238 Ill.App.3d 217, 223, 179 Ill.Dec. 393, 606 N.E.2d 225.) In the present case, we are unpersuaded that the trial court abused its discretion.

It is undisputed that Dr. Tierney was Mrs. Lopez's attending physician, and as such, was primarily responsible for her care. The evidence demonstrated that Dr. Tierney was intricately involved in the care and treatment Mrs. Lopez received. He instructed hospital staff not to operate on her until he arrived. Once there, Dr. Tierney performed the surgery and gave follow-up instructions for Mrs. Lopez's care.

Moreover, Dr. Tierney visited with Mrs. Lopez at least twice on September 4, 1979. Both plaintiffs' and defendants' experts testified at trial that Dr. Tierney was responsible for ensuring that all proper medical procedures had been performed. At the very least, his conduct was relevant to establish the treatment and care Mrs. Lopez received. Given this, we find no abuse of discretion. Plaintiffs inappropriately cite to Lipke v. Celotex Corp. (1987), 153 Ill.App.3d 498, 106 Ill.Dec. 422, 505 N.E.2d 1213, where the court held that evidence of a non-party's concurrent negligence does not absolve a defendant from liability for his own negligence. (Lipke, 153 Ill.App.3d at 509, 106 Ill.Dec. 422, 505 N.E.2d 1213.) However, this principle as espoused in Lipke was premised on the fact that the evidence sufficiently supported a finding that the defendant was guilty of negligence. (See Watson v. Chicago Transit Authority (1973), 12 Ill.App.3d 684, 692, 299 N.E.2d 58.) In the case at bar, however, no evidence supported a finding defendants were negligent. In fact, the trial court stated, during a sidebar, "I don't know how anyone can say at this juncture given the facts of this case that it could not all be laid off on Dr. Tierney." We hold that evidence of Dr. Tierney's conduct was relevant and perceive no error in the trial court's ruling on plaintiffs' motion in limine. Consequently, the trial court properly permitted defendant to question other doctors concerning Dr. Tierney's duties and responsibilities.

Similarly, we reject plaintiffs' argument that the trial court erred in failing to strike the following hypothetical question posed by defendants to Dr. Balasaraswathi:

"If Dr. Tierney was notified, and an obstetrical resident was there and wanted to draw a blood gas, and Dr. Tierney countermanded the order and told the obstetrical resident that she could not, it would be Dr. Tierney causing that blood gas not to be drawn, is that right?"

Undoubtedly, a litigant may pose a hypothetical question to an expert witness given that the question is based on facts in evidence or on reasonable inferences therefrom. (Benison v. Silverman (1992), 233 Ill.App.3d 689, 704, 175 Ill.Dec. 87, 599 N.E.2d 1101.) The trial court determines whether a hypothetical question has sufficient basis in the evidence. (Myers v. Williams (1987), 160 Ill.App.3d 707, 712, 112 Ill.Dec. 600, 513 N.E.2d 1209.) The assumptions contained in the hypothetical question may...