Petre v. Kucich

• Decision Date: 17 February 2005
• Docket Number: No. 1-03-2641.,1-03-2641.
• Citation: 356 Ill. App.3d 57,291 Ill.Dec. 867,824 N.E.2d 1117
• Parties: Jane PETRE, Special Administrator of the Estate of James J. Petre, Jr., Plaintiff-Appellant, v. Vincent A. KUCICH, M.D., and Cardiovascular Consultants, S.C., d/b/a Cardiovascular Medical Associates, S.C., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

824 N.E.2d 1117

356 Ill. App.3d 57

291 Ill.Dec. 867

Jane PETRE, Special Administrator of the Estate of James J. Petre, Jr., Plaintiff-Appellant, v. Vincent A. KUCICH, M.D., and Cardiovascular Consultants, S.C., d/b/a Cardiovascular Medical Associates, S.C., Defendants-Appellees.

No. 1-03-2641.

Appellate Court of Illinois, First District, Fourth Division.

February 17, 2005.

David A. Axelrod, Stacey L. Leinheiser, David A. Axelrod & Associates, P.C., Chicago, for Appellant.

Francis R. Petrek, Jr., Krista R. Frick, Jr., Bollinger, Ruberry & Garvey, Chicago, for Appellee.

Justice THEIS delivered the opinion of the court:

This is the second time this case has come before the appellate court. Plaintiff Jane Petre, special administrator of the estate of James J. Petre, Jr.,¹ filed this medical malpractice action against defendants Vincent A. Kucich, M.D., Dr. Kucich's practice group, Cardiovascular Consultants, S.C., d/b/a Cardiovascular Medical Associates, S.C. (CMA), St. Francis Hospital and Health Center, Dr. Robert E. Applebaum, Dr. Hershel Wix, Dr. David Looyenga, Dr. Robert Prentice, Dr. George Gustafson, and Hickory Cardiology Associates, Ltd. Plaintiff sought recovery for injuries sustained by Petre following coronary artery bypass surgery performed by Dr. Kucich at St. Francis Hospital and Health Center in Blue Island, Illinois. After the surgery, a postoperative wound infection developed, ultimately necessitating the removal of Petre's sternum and additional reconstructive surgery.

In this appeal, following the second trial where the jury found in favor of Kucich and CMA (collectively, defendants), plaintiff argues (1) the trial court erred in failing to enter a judgment notwithstanding the verdict when defendants' expert witnesses admitted the facts and opinions supporting plaintiff's case; (2) the trial court erred by admitting evidence concerning the negligence of subsequent treaters; (3) the court should have granted plaintiff a new trial as a result of prejudice arising from the admission of evidence concerning negligence of subsequent treaters; (4) the court erred in failing to give the jury the sole proximate cause instruction, Illinois Pattern Jury Instructions, Civil, No. 12.04 (2000) (hereinafter IPI Civil (2000) No. 12.04); (5) the court erred in denying plaintiff's motion for a mistrial after a defense witness violated an in limine order barring evidence of Petre's history of smoking; and (6) the court erred in admitting opinion evidence not disclosed under Supreme Court Rule 213 (177 Ill.2d R. 213). For the following reasons, we reverse and remand for a new trial.

Prior to the first trial in 2000, plaintiff settled with St. Francis Hospital for $5,000 and dismissed it from this action. Plaintiff also voluntarily dismissed Drs. Wix, Looyenga, Prentice, Applebaum, and Gustafson, and Hickory Cardiology Associates, Ltd. (collectively, Hickory defendants). Following a jury trial, the trial court entered judgment for plaintiff and against Kucich and CMA in the amount of $465,000.² Defendants then appealed, arguing that the trial court erred in excluding evidence of the alleged negligence of the previously dismissed Hickory physicians, thus preventing defendants from asserting the "empty chair" defense, i.e., from claiming that postoperative negligence on the part of the dismissed Hickory defendants was the sole proximate cause of Petre's injuries. Petre v. Kucich, 331 Ill.App.3d 935, 937, 265 Ill.Dec. 125, 771 N.E.2d 1084, 1086 (2002). Defendants also contended that the trial court erred in refusing to tender the appropriate jury instruction on sole proximate cause, IPI Civil No. 12.04.

In the first appeal, the appellate court reversed and remanded for a new trial, finding that the trial court "erred as a matter of law both in precluding evidence of the dismissed Hickory physicians' conduct and in refusing to give the appropriate jury instruction, thereby denying defendants a fair trial." Petre, 331 Ill.App.3d at 938, 265 Ill.Dec. 125, 771 N.E.2d at 1087. In so holding, this court relied on Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995), which held that a defendant's answer which denies that an injury was the result of or caused by the defendant's conduct is sufficient to permit the defendant to present evidence that the injury was the result of another cause. Leonardi, 168 Ill.2d at 94, 212 Ill.Dec. 968, 658 N.E.2d at 455. A defendant has the right not only to rebut evidence tending to show that the defendant's acts were negligent and the proximate cause of the plaintiff's injuries, but also to attempt to establish that the conduct of a third party, or some other causative factor, is the sole proximate cause of the plaintiff's injuries. Leonardi, 168 Ill.2d at 101, 212 Ill.Dec. 968, 658 N.E.2d at 459. The sole proximate cause defense does not distract the jury and merely focuses the jury's attention on the plaintiff's duty to prove that the defendant's conduct was a proximate cause of the plaintiff's injury. Leonardi, 168 Ill.2d at 94, 212 Ill.Dec. 968, 658 N.E.2d at 456. The Petre court found that Dr. Kucich and CMA each filed an answer denying that Petre's injury was the result of their conduct and thus, based on Leonardi, held that both defendants should have been allowed to present evidence of the Hickory physicians' alleged postoperative negligence on the issue of proximate cause. Petre, 331 Ill.App.3d at 943, 265 Ill.Dec. 125, 771 N.E.2d at 1091. Additionally, the court held that "[b]ecause the disputed evidence should have been allowed, * * * the trial court abused its discretion in refusing to give the relevant jury instruction on sole proximate cause (IPI Civil 3d No. 12.04)." Petre, 331 Ill.App.3d at 943, 265 Ill.Dec. 125, 771 N.E.2d at 1091.

On remand and prior to the second trial in 2003, plaintiff submitted three motions in limine attempting to bar defendants from submitting any evidence concerning the negligence of the previously dismissed defendants. Pursuant to this court's ruling in Petre, however, the trial court denied these motions and allowed the defense to elicit evidence during the second trial that the actions of the dismissed Hickory defendants, and not these defendants, were the proximate cause of Petre's injuries.

At the second trial, Dr. Kucich, a board-certified cardiothoracic surgeon, testified that he was Petre's primary cardiothoracic surgeon when he performed Petre's coronary artery bypass graft surgery on November 26, 1996, nine days after Petre suffered a heart attack. Kucich also consulted on Petre's case until he was discharged from the hospital by Dr. Looyenga on December 2, 1996. Dr. Kucich had no further clinical contact with Petre following his discharge. Because bypass patients by definition are at risk of contracting a sternal wound infection, antibiotics are given prior to, during and after surgery prophylactically. Prior to his surgery, Petre received two antibiotics, clindamycin and ceftazidime, for eight days to treat his aspiration pneumonia, and Dr. Kucich continued this medication during and after Petre's surgery. Kucich testified he made the decision to continue with clindamycin and ceftazidime, which prevent and treat certain staph infections, and not to give Petre another antibiotic, vancomycin. Dr. Kucich testified that he gave vancomycin only to patients who were allergic to penicillin or who were already receiving that drug for a preexisting infection. Vancomycin was not indicated for Petre because he did not fall into either category. Additionally, vancomycin may cause a drop in blood pressure and ear and kidney problems and only provided coverage for very specific bacteria. One such type of bacteria is methycillin-resistant staph epidermis (MRSE), which is resistant to certain antibiotics, including the ones Petre received, but can be treated by vancomycin. Kucich later testified in his own defense that his use of clindamycin and ceftazidime, rather than vancomycin, was within the standard of care.

Petre later developed a sternal wound infection caused by MRSE. Kucich agreed that from a retrospective point of view, Petre was predisposed to MRSE bacteria due to his prolonged course of antibiotics.

Dr. Barry Fields, a board-certified cardiothoracic surgeon, testified for plaintiff that Petre was hospitalized again from January 8 to 16, 1997, after Dr. Dreyfuss diagnosed a sternal wound infection caused by MRSE. Petre was seen by Dr. Hirsch, an infectious disease specialist, and doctors from Hickory Cardiology Associates. Due to this infection, infected portions of Petre's sternum and chest wall were removed on January 10 and Petre received vancomycin. Dr. Wix, Petre's cardiologist, continued to care for Petre following his bypass surgery and his discharge on December 2, 1996. Fields testified that the standard of care required that Petre receive vancomycin before and during surgery to prevent an infection from MRSE. He testified that after receiving eight days of the other antibiotics and a course of steroids, Petre was predisposed to a MRSE infection. If Petre had received vancomycin before surgery, it would be "highly unlikely" that Petre would have contracted a MRSE infection. Dr. Fields stated that Dr. Kucich deviated from the standard of care in not proscribing vancomycin to Petre. He testified that vancomycin should be given to bypass patients who were allergic to penicillin, who had an ongoing treatment of vancomycin or who had received a course of antibiotics which was known to change the skin flora and potentially produce MRSE. Petre fell into the third category and required vancomycin. The medical records indicated that a culture of Petre's wound was taken before he was discharged from the hospital the first time and the results were obtained on December 5, 1996, indicating that Petre had an infection caused by MRSE. Dr. Fields opined that Petre's infection began at...