Rieker v. Kristal, 3-11-0680

CourtUnited States Appellate Court of Illinois
Writing for the CourtLYTTON
Citation2013 IL App (3d) 110680
Decision Date18 January 2013
Docket Number3-11-0680
PartiesMARVIN RIEKER, Plaintiff-Appellee, v. LIBBY K. KRISTAL and ILLINOIS VALLEY EYE INSTITUTE, S.C., Defendants-Appellants.

2013 IL App (3d) 110680

MARVIN RIEKER, Plaintiff-Appellee,



Order filed January 18, 2013
A.D., 2013

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court
of the 13th Judicial Circuit,
La Salle County, Illinois,

Appeal No. 3-11-0680
Circuit No. 08-L-90

R.J. Lannon, Jr.,
Judge Presiding.

JUSTICE LYTTON delivered the judgment of the court.
Justice O'Brien concurred in the judgment.

Justice Schmidt concurred in part and dissented in part.


¶ 1 Held: Defendants in medical malpractice action were not entitled to judgment notwithstanding the verdict or a new trial where the jury's verdict for plaintiff was not against the manifest weight of the evidence and trial court did not commit prejudicial errors that deprived defendants of a fair trial.

¶ 2 Plaintiff Marvin Rieker filed a medical malpractice action against defendant Libby Kristal and her employer, Illinois Valley Eye Institute. The jury found in favor of plaintiff and awarded him $684,099.41 in damages. Defendants filed a combined motion for judgment notwithstanding the

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verdict and a new trial. The trial court denied the motion. We affirm.

¶ 3 On July 16, 2007, defendant Libby Kristal performed cataract surgery on plaintiff Marvin Rieker's right eye. As a result of complications from that surgery, plaintiff lost all vision in his eye and had to have his eye removed. Plaintiff filed suit against Kristal, alleging negligence, and Illinois Valley Eye Institute, alleging vicarious liability.

¶ 4 At trial, plaintiff testified that after Kristal performed cataract surgery on his right eye, he had pain, floaters and tearing. He advised Kristal of this at his appointments with her on July 17, 2007 and July 20, 2007. In the afternoon and evening of July 20, 2007, plaintiff's pain, floaters and tears continued. He slept very little that night and woke up at 4:00 a.m. on July 21, 2007, in "terrific pain." He went to the emergency room at 6:00 a.m. That morning his vision was cloudy and much worse than it had been before. The emergency room staff gave plaintiff an I.V. and contacted Kristal. She was out of town and referred plaintiff to an optometrist, Beth Kunkel.

¶ 5 When plaintiff arrived at Kunkel's office, his vision was "very blurry" and his pain was "terrible." Kunkel performed an eye pressure test, gave him some medicine and sent him home. When plaintiff got home, he did not feel well. Kristal called plaintiff on the evening of July 21, 2007. Plaintiff told Kristal that he was having pain that was 13 on a scale of 1 to 10. He also told Kristal that his vision was blurry and that he "needed her help right now." Kristal told plaintiff she would call him the next morning. Plaintiff's vision worsened during the night of July 21, 2007.

¶ 6 The next afternoon, Kristal called plaintiff and instructed him to meet her at the hospital. Kristal arrived just before 3:00 p.m. Kristal looked at plaintiff's eye and told him he needed to get ready for surgery because he had a severe infection known as endophthalmitis.

¶ 7 Plaintiff spent the night at the hospital. The next morning, he saw Kristal, who told him "I

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don't know what to do for you." Plaintiff requested to see another doctor. When another doctor, Kamal Kishore, saw plaintiff's eye, he instructed plaintiff that he needed immediate surgery. Plaintiff underwent surgery to remove bacteria from his eye, but it did not return any vision to plaintiff's eye. After that, plaintiff had surgery to remove his eye and, later, had surgery to insert a prosthetic eye.

¶ 8 Dr. Ramon Inciong testified that he was the emergency room physician at St. Margaret's Hospital on July 21, 2007. When plaintiff came to the emergency room that morning, he complained of "severe pain" in his right eye. After examining plaintiff, Inciong determined that plaintiff needed help from a specialist, Kristal, since she had performed plaintiff's cataract surgery a few days earlier. Inciong contacted Kristal. She advised Inciong to give plaintiff medications to try to reduce the pressure and pain in plaintiff's eye and said she was arranging for plaintiff to be seen by a local optometrist. After that, Kunkel called and instructed Inciong to send plaintiff to her for an evaluation.

¶ 9 Beth Kunkel testified that she is a licensed optometrist, not a medical doctor. On July 21, 2007, Kristal called her and said she was at a conference in Chicago and had a patient at St. Margaret's Hospital that had recently had cataract surgery. She asked Kunkel to see plaintiff to measure plaintiff's eye pressure and check his anterior segment. Kunkel focused her exam on the two procedures Kristal asked her to perform.

¶ 10 Plaintiff was visibly in pain when Kunkel saw him. Kunkel saw evidence of inflammation and swelling of the cornea. She observed a few clumps of white blood cells on the back surface of his cornea, which is a sign of inflammation or infection. When she measured plaintiff's intraocular pressure, the right eye was 48, which is more than double what is should be. She relayed her

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findings to Kristal. Kristal advised her to put drops in plaintiff's eye to reduce the pressure and then send him home. Kunkel was not comfortable sending plaintiff home and suggested that he remain at her office. Plaintiff stayed at Kunkle's office, and she measured his pressure an hour later. It was 42 at that time, which is still very elevated. Kunkel believed that when plaintiff left her office he needed to be cared for and treated by an ophthalmologist.

¶ 11 Dr. Catherine Cuite testified that she is an ophthalmologist and oculoplastic surgeon. She first saw plaintiff on August 22, 2007, after he was referred by Kishore. Her examination revealed that plaintiff had no vision in his right eye. She recommended enucleation, which is removal of the eye. On August 31, 2007, plaintiff had an enucleation. An implant was later placed in plaintiff's eye.

¶ 12 Brian Smith testified that he is an ophthalmologist, a physician who specializes in the treatment and diagnosis of eye diseases. Based on his review of the medical records and depositions, he believed to a reasonable degree of medical certainty that Kristal committed medical negligence in her care of plaintiff by (1) not admitting plaintiff to a hospital and personally examining him on July 21, 2007, (2) not providing treatment to plaintiff, other than eye drops for ocular pressure, from the morning of July 21, 2007 to the afternoon of July 22, 2007, (3) sending plaintiff to an optometrist, instead of an ophthalmologist, after he presented to the hospital on July 21, 2007, and (4) not seeing plaintiff until 30 hours after he went to the hospital. Smith further testified that it was his opinion to a reasonable degree of medical certainty that Kristal's acts of negligence contributed to the loss of plaintiff's eye.

¶ 13 Smith believed to a reasonable degree of medical certainty that plaintiff's endophthalmitis on July 21, 2007, could have been treated so that he would not lose his eye. According to Smith, early diagnosis of endophthalmitis is "key." If treated early and managed properly, many patients

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preserve vision. He explained that with endophthalmitis, "every hour that goes by the bacteria continue to grow." The bacteria doubles each hour, so it is important to catch the disease early. "The earlier you get it, the earlier you can treat it, the less number of bacteria you're dealing with, the less severe the infection is." When plaintiff first began experiencing pain, the number of bacteria was small but increased exponentially over the next 30 hours. It was his opinion to a reasonable degree of medical certainty that if plaintiff had been properly treated by 12:00 p.m. on July 21, 2007, he would have retained some vision in his eye.

¶ 14 On cross-examination, Smith agreed that his opinions were based on some supposition and estimations because there are no absolute certainties in medicine. He stated that all of his opinions were based on a reasonable degree of medical certainty.

¶ 15 After Smith's testimony, plaintiff rested his case. Thereafter, defendants filed a motion for directed verdict, arguing that plaintiff failed to establish that Kristal's actions and/or inactions were the proximate cause of plaintiff losing his eye. The trial court denied the motion.

¶ 16 Defendant's first witness was Libby Kristal. She testified that she met the standard of care applicable to an ophthalmologist in rendering care to plaintiff. She did not believe that she breached the standard of care by having Kunkel, an optometrist, see plaintiff. She agreed that there were several ophthalmologists in the area on July 21, 2007, but she did not try to reach them because she believed sending plaintiff to Kunkel provided her with the most expeditious way to obtain the information she needed.

¶ 17 She also did not believe that she breached the standard of care in failing to diagnose plaintiff as having endopthalmitis on July 21, 2007, because she thought that...

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