Ross v. Ill. Cent. R.R. Co.

• Decision Date: 06 May 2019
• Docket Number: No. 1-18-1579,1-18-1579
• Citation: 129 N.E.3d 641,2019 IL App (1st) 181579,432 Ill.Dec. 423
• Parties: Antwon M. ROSS, Plaintiff, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant, (Sarmed G. Elias, Third-Party Defendant-Appellee).
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 181579

129 N.E.3d 641

432 Ill.Dec. 423

Antwon M. ROSS, Plaintiff,

v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant,(Sarmed G. Elias, Third-Party Defendant-Appellee).

No. 1-18-1579

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed May 6, 2019

Rehearing denied June 11, 2019

Forde Law Offices LLP (Kevin M. Forde and Joanne R. Driscoll, of counsel) and Fletcher & Sippel LLC (Colleen Konicek and Elizabeth O. Bryant, of counsel), both of Chicago, for appellant.

Brenner, Monroe, Scott & Anderson, Ltd., of Chicago (Randall C. Monroe and Austin C. Monroe, of counsel), for appellee.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 The plaintiff in this case is a former railroad employee who alleges he injured his back while attempting to board a moving train. He sued his employer, Illinois Central Railroad Company (Illinois Central or the railroad), and upon investigation of his claim, Illinois Central filed a third-party complaint again the plaintiff's doctor for contribution. Illinois Central now asks us to find that the circuit court abused its discretion when it found that a settlement the plaintiff and his doctor reached was entered into in good faith—a finding that resulted in the dismissal with prejudice of the railroad's contribution claims against the doctor. The railroad also contends that the circuit court erred as a matter of law when it concluded that the common-interest exception applied to prevent waiver of the attorney-client privilege when the plaintiff and his doctor shared attorney-client privileged communications with each other. For the reasons that follow, we agree with Illinois Central on both of these points and we reverse.

¶ 2 I. BACKGROUND

¶ 3 A. Mr. Ross's Injury and Medical Treatment by Dr. Elias

¶ 4 Plaintiff, Antwon Ross, alleges that on January 26, 2013, while employed as a freight conductor by Illinois Central, he fell while attempting to board a moving train and injured his head

, neck, and back. Mr. Ross was taken to a local hospital, diagnosed with a compression fracture of the T12 vertebra, treated for a head contusion and scalp laceration, and discharged. Five days later, Mr. Ross began to see third-party defendant Dr. Sarmed Elias, an orthopedic surgeon specializing in minimally invasive spinal surgery. And over the next several years Mr. Ross received treatment from Dr. Elias at facilities owned and operated by Dr. Elias, including two vertebroplasties—which is a spinal injection procedure—a fusion of the T12 and L1 vertebrae, multiple nerve blocks for pain control, steroid injections, dozens of office visits, and 173 physical therapy sessions. Mr. Ross ultimately did not return to work in any capacity and currently collects disability.

¶ 5 Dr. Andrew Zelby, a neurosurgeon, was hired by Illinois Central shortly after the accident to render an opinion as to the reasonableness and necessity of the medical treatment. Mr. Ross failed to keep an appointment for an evaluation by Dr. Zelby, but Dr. Zelby reviewed Mr. Ross's medical records. In August 2013, Dr. Zelby wrote a letter to the railroad that it shared with Mr. Ross, in which Dr. Zelby concluded that Mr. Ross sustained a mild T12 compression fracture

that should have healed without any treatment at all. In Dr. Zelby's opinion, none of the procedures performed by Dr. Elias, except perhaps the first vertebroplasty, were reasonable or necessary. Dr. Zelby stated "this treatment must be stopped, * * * it is certainly not in the best interests or for the benefit of Mr. Ross," and noted that Mr. Ross "should be treated as a patient, not an annuity." Mr. Ross showed this letter to Dr. Elias but elected to continue treatment with Dr. Elias for three additional years, through the end of 2016.

¶ 6 On June 3, 2015, Mr. Ross sued Illinois Central under the Federal Employers' Liability Act (FELA) ( 45 U.S.C. § 51 et seq. (2012) ), claiming that his injuries were the result of Illinois Central's negligence. Mr. Ross alleged that he was "trained and encouraged by [Illinois Central] to climb on and off rail cars while the train was in motion" and that Illinois Central failed to provide its workers with a safe method for doing so. Illinois Central asserted in its answer and affirmative defenses that Mr. Ross's injuries were, in whole or in part, the result of his own negligence and that Mr. Ross had failed to mitigate his damages by "fail[ing] to follow the advice and recommendations of independent physicians in an effort to alleviate symptoms, promote recovery, and protect [him] from inadequate medical care."

¶ 7 On August 3, 2015, Illinois Central filed a third-party complaint against Dr. Elias, seeking contribution for the pro rata share of damages Illinois Central alleged was attributable to negligent treatment by the doctor that "significantly aggravated" Mr. Ross's injuries. In support of its complaint, Illinois Central filed an affidavit by Dr. Zelby, in which Dr. Zelby elaborated on his earlier opinions as follows:

"3. I believe there is reasonable and meritorious cause for this third party complaint against Dr. Elias. His treatment was in large measure excessive and unnecessary. Dr. Elias performed surgeries that were not indicated or appropriate and performed repeated and numerous procedures on Mr. Ross's spine that were completely unnecessary and harmful to Mr. Ross.

4. Mr. Ross did have a T12 compression fracture

as a result of his fall, but this was a mild fracture. As a fairly young male with a fracture that had such mild loss of vertebral body height, a kyphoplasty [is] a potential treatment, but it is more likely than not that this fracture would have healed completely with a period of external bracing and no invasive treatment. There was no reason to pursue kyphoplasty at Ll and this treatment was a deviation from the standard of care.

5. A lumbar fusion for the possibility of an interspinous ligament tear is also a deviation from the standard of care. This ligament is not integral in the stability of the spine and a complete tear or even surgical removal of the interspinous ligament such as with a laminectomy does not cause spinal instability or the need for a fusion.

6. Mr. Ross's MRI also revealed very mild degenerative changes in the mid-lower lumbar spine without any neural impingement. In general these mild degenerative changes are typical of the changes that would be expected in a patient in his mid 30s. All of the invasive treatment that Dr. Elias pursued at L2-3, L3-4, L4-5 and L5-S1 was a deviation from the standard of care. Mr. Ross did not have any conditions in his spine that would merit such treatment and this assault on his spine is not consistent with appropriate spine care."

¶ 8 In a report he later prepared for this litigation, Dr. Zelby reiterated his earlier conclusions, further stating:

"Although Mr. Ross reported ongoing complaints of pain, his reported persistence and reported severity of his complaints were inconsistent with the objective medical findings and inconsistent with the natural history of his objective medical condition. This has in large part been promulgated by Dr. Elias. His pursuit of such unnecessary and excessive treatment has had a counterproductive effect on Mr. Ross because it has served to perpetuate the idea of infirmity in Mr. Ross when none has existed. This has also contributed to Mr. Ross'[s] perception of disability and has been medically unscrupulous treatment by Dr. Elias. As it relates to his thoracolumbar injury, Mr. Ross would have been back to full duty work as a conductor by the end of May 2013 with conservative management in a brace or possibly with a T12 vertebroplasty

. * * * Mr. Ross'[s] inability to return to work within this timeframe and his claimed inability to work as a conductor since the end of May 2013 have exclusively been related to the unnecessary and egregious treatment of Dr. Elias. * * * This treatment was a deviation from the standard of spine care for Mr. Ross'[s] condition. * * * Mr. Ross does not require any additional treatment for his spine irrespective of cause. He should be encouraged to pursue a diligent, daily, self-directed range of motion, stretching and core strengthening exercise program both as a mainstay for long term control of his symptoms and also for the general health of his spine. Thank you very much."

¶ 9 Dr. Zelby went on to note a number of discrepancies he observed in Dr. Elias's records:

"I have reviewed various sets of medical records from Dr. Elias'[s] office related to the treatment of Mr. Ross. There are obvious changes to these records that were not related to errors in documentation. The changes in the medical records appear to have been made surreptitiously and were not clearly identified as changes to the original record, as any changes to a medical record should be identified. These changes were made because they were expedient for Dr. Elias and these changes also clearly misrepresent and alter the essence of the original records. The altering of medical records by Dr. Elias was unconscionable and unquestionably a deviation from the standard of care."

¶ 10 Dr. Elias admitted at his deposition that he altered Mr. Ross's medical records, both in response to Dr. Zelby's 2013 letter and after receiving a subpoena for the records from Illinois Central. He testified, however, that he could not recall which changes were made at what time.

¶ 11 Mr. Ross's own expert in this case, Dr. Dennis Gates, agreed with Dr. Zelby that, given the mild nature of his injuries, only one of the procedures Mr. Ross underwent was acceptable. Dr. Gates estimated that without the unnecessary interventions, Mr. Ross should have resumed his work responsibilities within one year of his injury. After some equivocation, Dr. Gates acknowledged at his deposition that many of Mr. Ross's symptoms could have actually been caused by Dr. Elias's treatment:

"Q. Is there an

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