Sikora v. Parikh
| Decision Date | 28 September 2018 |
| Docket Number | No. 1-17-2473,1-17-2473 |
| Citation | 2018 IL App (1st) 172473,428 Ill.Dec. 318,122 N.E.3d 327 |
| Parties | Mary SIKORA, as Independent Administrator of the Estate of Chris Allan Sikora, Deceased, Plaintiff-Appellee, v. Nirali R. PARIKH, M.D., and Manor Care of Elk Grove Village IL, LLC, a Foreign Limited Liability Company, d/b/a ManorCare of Elk Grove Village, Defendants, (Nirali R. Parikh, M.D., Defendant-Appellant). |
| Court | United States Appellate Court of Illinois |
¶ 1 Plaintiff Mary Sikora, as independent administrator of the estate of Chris Allan Sikora (Sikora), deceased, brought a lawsuit against defendants, Nirali R. Parikh, M.D., and Manor Care of Elk Grove Village IL, LLC, d/b/a ManorCare of Elk Grove Village (ManorCare), following the death of her husband from a pulmonary embolism
. The case proceeded to a jury trial, where the jury rendered a verdict in favor of both defendants. Plaintiff thereafter moved for a new trial based, in part, on Dr. Parikh's closing argument, where her attorney asked the jury to place itself in Dr. Parikh's shoes and allegedly violated a pretrial in limine order, which had barred any mention of Sikora's initial refusal to be transferred to the hospital on the day he passed away. The trial court agreed that Dr. Parikh's attorney had made improper remarks during closing argument and found the cumulative effect of those errors sufficiently prejudicial to warrant a new trial.
¶ 2 Dr. Parikh now appeals the trial court's grant of a new trial, arguing that her attorney's statements in closing argument did not deny plaintiff a fair trial and, thus, did not warrant a new trial. For the reasons that follow, we affirm the trial court's order granting a new trial.
¶ 5 Plaintiff's second amended complaint frames the issues on appeal. In that complaint, she brought survival and wrongful death causes of action against Dr. Parikh and ManorCare. She also brought a claim that ManorCare violated the Nursing Home Care Act ( 210 ILCS 45/1-101 et seq. (West 2012) ). The allegations were all based on Dr. Parikh's failure to diagnose and treat Sikora's pulmonary embolism
and ManorCare's nurses' failure to inform Dr. Parikh of changes in his physical condition. The complaint alleged that these failures contributed to, or caused, Sikora's death on April 9, 2013, from a pulmonary embolism.1
¶ 6 Both defendants denied the alleged negligence and neither raised an affirmative defense.2
¶ 7 As the case proceeded toward a jury trial, the parties submitted several motions in limine. Relevant here is plaintiff's ninth motion in limine , wherein she requested that defendants' expert witnesses be barred from testifying about Sikora's initial refusal to be transferred to the hospital on the day he passed away.
¶ 8 During the hearing on the motion, it came to light that around 11:50 a.m. on the day Sikora passed away, a nurse practitioner at ManorCare recommended that he be transferred to the hospital. He initially refused but acquiesced apparently within a minute of his initial refusal. Plaintiff argued that, because neither defendant was alleging comparative negligence, Sikora's initial refusal to be transferred to the hospital was irrelevant to the issue of causation, especially because he agreed moments after his initial refusal. Conversely, Dr. Parikh argued that Sikora's initial refusal was relevant because plaintiff's theory of the case was that Dr. Parikh should have taken various steps to diagnose and treat Sikora's pulmonary embolism
within a "very tight timeframe [sic ]" and any deviation in this timeframe could have prevented him from obtaining lifesaving treatment. The trial court granted the motion, finding Sikora's initial refusal to be transferred to the hospital irrelevant to the issue of causation and accordingly barred any reference to it during trial.
¶ 10 The case proceeded to a jury trial, where the evidence revealed that a pulmonary embolism
is a blood clot that has traveled from somewhere in the body through the bloodstream and ended up in a pulmonary artery, where the clot blocks the artery and prevents blood flow. The most common symptoms of a pulmonary embolism are shortness of breath, fatigue, a rapid heart rate, decreased oxygen levels, a stabbing-like chest pain upon breathing, a cough accompanied by blood, a feeling of weakness, and a fever. Many of these symptoms can also indicate pneumonia, including shortness of breath, an elevated heart rate, a feeling of weakness, a fever, and a cough, though the latter two usually are more prominent with pneumonia
. But pneumonia also has symptoms that are not associated with a pulmonary embolism, such as a runny nose, a cough with "sputum," a sore throat, and swollen glands. Though common to both a pulmonary embolism and pneumonia, shortness of breath is considered a nonspecific symptom because it can be indicative of several other conditions, as well.
¶ 11 In diagnosing a patient's symptoms, physicians use what is called a differential diagnosis, a rank-order list of the patient's possible conditions. In order to create the list, the physician analyzes the patient's symptoms, medical history, and general demographic information. After analyzing the patient's unique circumstances, the physician ranks the conditions most likely causing the patient's symptoms, encompassing both the mathematically probability of the condition afflicting the patient as well as the seriousness of the condition. The ranking directs the physician's course of action regarding tests and treatment.
¶ 12 In the spring of 2013, the state-of-the-art test to determine if a patient had a pulmonary embolism
was a CT pulmonary angiogram, an imaging test that allowed a view of a patient's pulmonary arteries. The test also could determine whether a patient had pneumonia. ManorCare was a nursing home, not a hospital, and because of this distinction, it did not have the capabilities to perform a CT pulmonary angiogram on site. Similarly, ManorCare did not have an X-ray machine nor the ability to test blood on site. All of these tests, however, could be performed at Alexian Brothers Medical Center (Alexian Brothers), a comprehensive stroke center and level two trauma center. Alexian Brothers had radiology technicians on site 24 hours a day and 7 days a week and could perform a CT pulmonary angiogram at a moment's notice with the results transmitted to a patient's physician within 35 minutes.
¶ 13 In early March 2013, Sikora had back surgery at Alexian Brothers. On March 15, 2013, he was transferred to ManorCare for short-term rehabilitation, where Dr. Parikh, a private practice internist, became his attending physician. Upon admission to ManorCare, Sikora had hypertension
, or high blood pressure, coronary artery disease and was morbidly obese. Because of his hypertension, he took a beta-blocker, which not only helped lower his blood pressure but also lowered his normal pulse rate. Additionally, Dr. Parikh ordered Sikora to be placed on oxygen as needed as a precautionary measure in case he had any shortness of breath.
¶ 14 On March 22, 2013, Sikora had a fever of 103 degrees and an elevated white blood cell count. The following day, he had chills and an oxygen saturation
rate of 88%, which was low. As a result, Sikora was transferred to Alexian Brothers, where he was diagnosed with bacterial pneumonia and prescribed antibiotics. Because he would be relatively immobile during his hospitalization, Dr. Parikh prescribed him a low dose of the blood thinner Heparin to try and prevent blood clots.
¶ 15 On March 28, 2013, Sikora was discharged from Alexian Brothers and returned to ManorCare. According to nursing notes, upon being discharged, Sikora did not have any shortness of breath. However, a note from Dr. Schiappa, an infectious disease specialist who treated Sikora at Alexian Brothers that day, indicated that Sikora had shortness of breath with deep breathing. Upon his return to ManorCare, Dr. Parikh continued her order for Sikora to receive oxygen as needed and ordered nursing personnel to call her if his oxygen saturation
level fell below 90%. Dr. Parikh also continued his prescription of the low dose of Heparin
.
¶ 16 Over the next week and a half, there were no nursing notes indicating that Sikora had any shortness of breath and he did not complain to anyone, including his family, about shortness of breath. However, on April 7, 2013, Lauren Aich, one of Sikora's daughters, visited him and noticed that he was having "a little bit harder time breathing" than normal, but she did not alert the nursing staff about her observation.
¶ 17 The following day, Casmier Grabowski, a physical therapist at ManorCare, helped Sikora with exercises, including walking, stretching, and core strengthening. During the session, Sikora's oxygen saturation
levels "fluctuat[ed]" between 88% and 94%, and Grabowski documented in a physical therapy note that Sikora experienced increased shortness of breath.
¶ 18 On the morning of April 9, 2013, between 1 a.m. and 2:30 a.m., a nursing aide helped Sikora use the bathroom, and on his 10-foot walk back to his bed, he complained of shortness of breath. The aide informed Perlita Depakakibo, a ManorCare nurse, about the complaint, and she immediately went to Sikora's room because she understood shortness of breath to be both abnormal and potentially critical. When Depakakibo entered Sikora's room, he was sitting on the side of the bed and feeling weak but alert and responsive with a strong hand grip. She subsequently took his vital signs, which were relatively normal, and assessed his oxygen saturation
level, which measured at 95% on room air, also a normal level. Depakakibo suggested to Sikora that he sleep with his bed elevated, but he refused as he was more comfortable lying down. At 2:30 a.m., Depakakibo entered a note in Sikora's chart documenting his condition. In the...
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