Rush v. Hamdy, 4-93-0182

• Court: United States Appellate Court of Illinois
• Writing for the Court: KNECHT
• Citation: 255 Ill.App.3d 352,627 N.E.2d 1119
• Parties: , 194 Ill.Dec. 477 Dorothy RUSH and Leo Rush, Plaintiffs-Appellants, v. Mostafa HAMDY, and Central Gastroenterology Clinic, Ltd., a corporation, Defendants-Appellees (Ravi Kottoor, d/b/a Central Gastroenterology Clinic, Ltd., and Bromenn Healthcare, a corporation, Defendants).
• Docket Number: No. 4-93-0182,4-93-0182
• Decision Date: 10 February 1994

Page 1119

627 N.E.2d 1119 255 Ill.App.3d 352, 194 Ill.Dec. 477 Dorothy RUSH and Leo Rush, Plaintiffs-Appellants,
v.
Mostafa HAMDY, and Central Gastroenterology Clinic, Ltd., a
corporation, Defendants-Appellees (Ravi Kottoor, d/b/a
Central Gastroenterology Clinic, Ltd., and Bromenn
Healthcare, a corporation, Defendants). No. 4-93-0182. Appellate Court of Illinois,
Fourth District. Argued Aug. 24, 1993.
Dec. 28, 1993.
Rehearing Denied Feb. 10, 1994.

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[194 Ill.Dec. 479] [255 Ill.App.3d 354] James Wylder (argued), James Walker, Ltd., Bloomington, IL, for plaintiffs-appellants.

Karen L. Kendall (argued), David R. Sinn, James M. Voelker, Heyl, Royster, Voelker & Allen, Peoria, IL, for defendants-appellees.

Justice KNECHT delivered the opinion of the court:

Dorothy and Lester Rush brought suit against Dr. Mostafa Hamdy and Central Gastroenterology Clinic, Ltd., Hamdy's employer, for injuries sustained when Hamdy perforated Dorothy's esophagus while performing an esophageal dilatation. A McLean County jury returned a verdict in favor of defendants. Plaintiffs appeal. They contend they did not receive a fair trial as the result of two comments made by defendants' counsel in closing argument. Plaintiffs additionally allege the trial court erred in ruling on two evidentiary matters and in allowing a witness to be taken out of order. We reverse.

[255 Ill.App.3d 355] I. FACTS

In 1986 Dorothy was diagnosed with Schatzki's ring, a narrowing of the esophagus near where the esophagus joins the stomach which causes difficulty in swallowing foods. Schatzki's ring is treated by esophageal dilatation, which involves a stretching of the esophagus. There are several types and sizes of dilators used to treat esophageal disorders. One type of dilator is a bougienage, or "bougie," dilator, which is made from rubber or thermoplastic and does not change size or inflate. Another type of dilator is the balloon dilator, which is inflated by either water (hydrostatic) or air (pneumatic) during use. One type of pneumatic balloon dilator used to treat esophageal disorders is the achalasia dilator. Achalasia is a type of esophageal disorder unrelated to Schatzki's ring.

There is a risk, when performing an esophageal dilation, the esophagus will become perforated. A perforated esophagus can allow bacteria generally present in the esophagus to leave the esophagus and infect surrounding tissues and organs. Symptoms evidencing an esophageal perforation are chest pain, nausea, and an elevated white count. If not treated properly, an esophageal perforation may result in death. In the event of an esophageal perforation, the first 24 hours are the most critical. Within the first 24 hours, a surgeon can surgically mend the tear in the esophagus. However, after 24 hours have past, such operations are generally unsuccessful, as the tissues become inflamed and more delicate, and are unable to hold the sutures.

In 1986, Dorothy was treated by Dr. Nalin Patel. Dr. Patel determined the size of Dorothy's Schatzki's ring by having Dorothy swallow a radiopaque substance which caused her Schatzki's ring to be visible on an X ray. The opening of Dorothy's Schatzki's ring was measured at 1.5 centimeters. On January 27, 1986, Dr. Patel dilated Dorothy's Schatzki's ring with a 1.8-centimeter dilator. The procedure was initially successful; however, the Schatzki's ring ultimately returned.

On February 27, 1987, Dorothy consulted Hamdy about her disorder. She told Hamdy she had been diagnosed with Schatzki's ring and had been treated by dilatation. Hamdy did not order any tests to be performed and scheduled Dorothy for a balloon dilatation on March 9, 1987. According to Hamdy's records, the only prior medical record of Dorothy's which he had obtained was a record of a barium swallow which had been performed two years earlier. His records contain no indication he obtained any information about Dorothy's prior dilatation or the tests performed by Patel. However, Hamdy testified he [255 Ill.App.3d 356] knew either he or his secretary called either Patel or Patel's secretary and asked to be read notes of what Patel had done. Although Hamdy could not remember (and there was no indication in his records) what size dilator Patel had used, Hamdy testified he knew, on March 9, 1987, the size dilator Patel had used.

On March 9, 1987, Hamdy examined Dorothy at Brokaw Hospital, where she was scheduled to have the balloon dilatation. Hamdy used an endoscope to view Dorothy's esophagus. Hamdy initially recorded the opening of Dorothy's Schatzki's ring as 1.5 centimeters. The hospital had all types of dilators available. Hamdy chose the largest, a four-centimeter achalasia dilator. This dilator

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[194 Ill.Dec. 480] was more than twice the size of the dilator Patel had used. Hamdy placed the dilator in Dorothy's esophagus and began to inflate it. He determined it was in the wrong place, deflated the dilator, moved it, and began to reinflate it. Hamdy initially recorded he used five millimeters of mercury which was maintained for five seconds. After five seconds, Dorothy complained of pain and the procedure was terminated. Dorothy had nausea, dry heaves, and chest pain. Hamdy prescribed medicine for the nausea and painkillers. Due to the complications, Dorothy was admitted to the hospital at 11:40 a.m.

After Dorothy was admitted, Hamdy altered the medical records, changing the measurement of the opening of the Schatzki's ring from 1.5 centimeters to 2.5 centimeters and changing the pressure maintained from 500 millimeters mercury to 5 pounds per square inch. Hamdy explained these changes were corrections.

At trial, Hamdy conceded if a "gastrogafin" swallow had been performed on March 9, it would have revealed Dorothy had a perforated esophagus; however, none was performed. Hamdy testified he recommended a "gastrogafin" swallow be performed, but Dorothy refused. Although Hamdy made notes of his visits with Dorothy on March 9, no notation of the recommendation or refusal appears in the notes. On the morning of March 10, a "gastrogafin" swallow was performed, revealing a three-centimeter tear in Dorothy's esophagus. Hamdy began to treat Dorothy with antibiotics. Sometime later that day, he contacted Dr. Lawrence Raines, a surgeon. On March 11, Raines performed surgery. The tissues were inflamed and the tear in the esophagus could not be mended. Raines laid the tissues on top of each other and put in drains, in hope the perforation would ultimately heal naturally. Dorothy remained hospitalized until March 31, 1987. Dorothy continued to see Hamdy at his office until the end of May 1987, when Hamdy moved to California.

[255 Ill.App.3d 357] After moving to California, Hamdy contacted Dorothy by telephone on at least two occasions. At trial, Hamdy testified about one telephone call he made to Dorothy. Plaintiffs sought to introduce testimony of the substance of one of the telephone conversations, in which Hamdy requested the Rushes delay filing any lawsuit against him because he was applying to practice medicine in California and would be required to disclose any pending lawsuits on his application. The trial court, which had previously allowed a motion in limine precluding such testimony, refused to allow the testimony; however, an offer of proof was made for the record.

At trial, several physicians testified regarding the applicable standard of care. Hamdy testified prior radiological tests are not necessary before performing a dilation, because the Schatzki's ring can be viewed and measured more accurately by the use of an endoscope. According to Hamdy, the use of an achalasia dilator to treat Schatzki's ring is appropriate and up to a 10-centimeter dilator may be used. Hamdy testified it is the radiologist's responsibility to determine the placement of the dilator. Finally, Hamdy testified on March 9, he was not certain whether Dorothy's esophagus had been perforated, and treatment of a perforated esophagus with antibiotics is appropriate. Hamdy testified Dorothy's dilation was the first dilation he performed in Illinois. In his training in Ohio, Hamdy had performed 50 to 100 dilations; however, only 5 to 10 of these dilations were for Schatzki's rings.

Dr. Stephen Holt, a specialist in internal medicine and gastroenterology, testified on behalf of plaintiffs. Holt is the chairman of the gastroenterology department at the Seton Hall Graduate School of Medicine and director of St. Mary's and St. Michael's Medical Centers in New Jersey. Holt has previously served as the chief of the gastroenterology department and director of the gastroenterology diagnostic lab at Southern Illinois University School of Medicine. Holt has in excess of 100 publications.

Holt testified it is the gastroenterologist's responsibility to determine the placement of the dilator. Holt additionally testified it is inappropriate to measure the Schatzki's ring with an endoscope, because the insertion of the endoscope stretches the esophagus and provides an inaccurate view of the ring under normal conditions. Radiology is the proper

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[194 Ill.Dec. 481] method to view and diagnose a Schatzki's ring. Holt testified achalasia dilators are used to treat achalasia, and only under very rare circumstances are to be used to treat Schatzki's ring. Holt testified a 4-centimeter dilator should not have been used when a 1.8-centimeter dilator had previously been used with success. Finally, Holt [255 Ill.App.3d 358] testified the delay before contacting a surgeon was inappropriate. Holt concluded Hamdy's conduct violated the standard of care.

The evidence deposition of Dr. Stephen Matter, a practicing gastroenterologist, was read into evidence. Matter testified an achalasia balloon is used for the treatment of achalasia and it is improper to use it to treat either a 1.5- or 2.5-centimeter ring. Matter testified he had seen more than 200 Schatzki's rings during the course of...