Swaw v. Klompien

• Decision Date: 29 March 1988
• Docket Number: No. 87-0939,87-0939
• Citation: 522 N.E.2d 1267,168 Ill.App.3d 705
• Parties: , 119 Ill.Dec. 408 Richard SWAW, Plaintiff-Appellee, Separate Appellant, v. Gerald KLOMPIEN, M.D., Defendant-Appellant (Nahim Nasralla, M.D., Defendant-Separate Appellee).
• Court: United States Appellate Court of Illinois

Page 1267

522 N.E.2d 1267

168 Ill.App.3d 705, 119 Ill.Dec. 408

Richard SWAW, Plaintiff-Appellee, Separate Appellant, v. Gerald KLOMPIEN, M.D., Defendant-Appellant (Nahim Nasralla M.D., Defendant-Separate Appellee).

No. 87-0939.

Appellate Court of Illinois,

First District, Second Division.

March 29, 1988.

Wildman, Harrold, Allen & Dixon, Chicago, Mark C. Fedota, Kay L. Schichtel and Steven E. Danekas, of counsel, for defendant-appellant Klompien.

Taslitz, Smith & Hemmesch, Chicago, Donald F. Hemmesch, Jr. and Dean M. Athans, of counsel, for plaintiff-appellee separate appellant Swaw.

Pretzel & Stouffer, Chartered, Chicago, Brian T. Henry, Robert Marc Chemers and Robert J. Franco, of counsel, for defendant-separate appellee Nasralla.

Justice BILANDIC delivered the opinion of the court:

Defendant, Dr. Gerald Klompien, appeals from a jury verdict rendered against him in the amount of $510,450.68 in a medical malpractice action. Plaintiff appeals from a jury verdict rendered in favor of codefendant, Dr. Nahim Nasralla.

Plaintiff and his wife were married when both were 18 years old. In 1983, they had two sons, ages nine and six. They decided to seek medical advice regarding family planning. Plaintiff's wife contacted her gynecologist who suggested that Mr. Swaw undergo a vasectomy. She referred the Swaws to defendants, both general surgeons associated with each other in practice.

Mr. Swaw and his wife first visited the doctors' office on March 24, 1983. During that visit, Dr. Klompien explained the vasectomy procedure. He gave plaintiff a document entitled "Vasectomy Instructions." The document explained how Mr. Swaw was to prepare for the vasectomy and what he was to do after the vasectomy. The document also mentioned possible complications of the vasectomy, including pain, swelling and discoloration, and advised Mr Swaw to contact the doctors if he had any problems.

Subsequently, Mr. Swaw and his wife decided that he would undergo a vasectomy and scheduled an appointment for April 22, 1983. On that day, a Friday, Mr. Swaw and his wife arrived at the doctors' office at approximately noon. Both Drs. Klompien and Nasralla performed the bilateral vasectomy while Mr. Swaw's wife waited in another room.

The doctors testified that they did not encounter any unusual problems during the surgery. Plaintiff remained in the doctors' office for about an hour before returning home. At home, Mr. Swaw placed ice over the incisions on his scrotum, took the prescribed medication, and slept until the next morning, Saturday, April 23, 1983.

Upon awakening, he noticed some swelling and a "little lump" in his left groin. He applied ice as directed but the lump continued to get larger and his discomfort continued. He phoned Dr. Nasralla who advised him to continue to apply ice and call back if there were any other problems.

The next day, Sunday, the swelling and pain continued so plaintiff phoned the doctors' office and left a message. Dr. Klompien returned the call.

At this point, plaintiff's "left testicle had gotten larger, it was black, his penis was black with two bulging sacks of blood at the tip, his buttocks and upper left thigh were black and blue and the left side of his abdomen up to the navel and out to the hip was also grossly discolored." When plaintiff saw the extent of the swelling and discoloration, "he thought he was dying."

Dr. Klompien told plaintiff to apply heat, take hot baths, and call Monday to arrange an appointment if the discomfort continued.

On Monday, the discoloration, swelling and pain continued and plaintiff's wife scheduled an appointment for Tuesday. Dr. Klompien examined plaintiff on Tuesday and prescribed medication. Plaintiff's symptoms continued but he had less pain on Wednesday. By Thursday, April 28, 1983, the pain became so severe that the plaintiff went to the hospital where he was examined by both defendant doctors.

Dr. Klompien continued to treat the plaintiff through June 13, 1983. The doctors told plaintiff that his pain and discomfort could last six months to a year. When the symptoms persisted beyond this period, Mr. Swaw consulted other physicians who eventually referred him to a urologist in October 1984. Surgery, performed by the urologist in February 1985, relieved much of the pain but physical activity continued to cause extreme discomfort. The possibility of additional surgery to obtain relief was suggested, but the plaintiff declined when advised of the potential benefits and hazards of the procedure.

Plaintiff brought suit against both doctors alleging negligent care and treatment. Plaintiff testified that although subsequent surgery relieved much of his pain, virtually any activity still causes a feeling as though someone has either kicked him or is pulling on the left testicle.

Plaintiff returned to work in May 1983, but did not otherwise resume his normal lifestyle. The Commissioner of the Amateur Softball Association testified that prior to the alleged negligence of the doctors, the plaintiff actively participated as a highly regarded 16-inch softball player in the Chicago area and could have continued in that capacity for many years. In 1983, plaintiff's sons, then ages nine and six, were in the process of getting into organized baseball. He practiced with them to improve their skills. His condition prevents him from continuing this activity.

During the winter months, he bowled with his family and played hockey with his sons in their driveway. During the summer months, he enjoyed boating, swimming and skiing at the family's summer cottage. He can no longer participate in any of these activities. His wife now describes him as a "couch potato."

Although he can still engage in marital relations with his wife, the activity is painful and less frequent.

Family members corroborated plaintiff's testimony. Plaintiff's wife described his symptoms and the phone calls to the doctors. She told of taking her husband to the hospital on April 28, where both doctors examined him. Dr. Klompien told her that her husband had a hematoma, he should stay in bed and keep applying heat to the area. He also told her that her husband should not be in that much pain and he should not be such a "big baby."

The plaintiff presented the testimony of his expert, Dr. Swerdlow, a general surgeon. Both defendants testified during plaintiff's case-in-chief as adverse witnesses.

The medical evidence established that while some swelling, discoloration and hematoma commonly occurs following a vasectomy, plaintiff developed a rare post-operative complication.

Plaintiff's expert testified that surgeons are responsible for post-operative care. If the patient in the post-operative period calls for help complaining about something unusual, it behooves the surgeon to see that patient and make an early and rapid diagnosis to prevent a simple complication from becoming a major complication. He also testified that the standard of care required Dr. Klompien to examine plaintiff on Sunday. He stated that when a post-operative hematoma grows to a massive size, it is associated with post-operative disability, pain, discomfort and formation of fibrotic tissue. Surgical principles dictate that when a hematoma becomes massive, it must be drained, packed off and the bleeding must be stopped. He opined that the failure to examine Mr. Swaw on Sunday, April 24, 1983, prevented Dr. Klompien from making the necessary judgment concerning the proper course of treatment and defendant's failure to do so was causally related to plaintiff's pain and discomfort. He also stated that Mr. Swaw will continue to have pain for the rest of his life.

At trial, each defendant testified that he could not recall his telephone conversation with Mr. Swaw on the Saturday and Sunday following the vasectomy. Defense testimony showed that it was unlikely that plaintiff had phone conversations with each doctor on the weekend after the surgery because the doctors alternated being on call on weekends. Only one doctor would be available on that weekend. Consequently, both of them did not speak to the plaintiff on the same weekend. Although they vigorously disputed the conversations at trial, for the purposes of this appeal, defendants admit to plaintiff's telephone conversations with Dr. Nasralla on Saturday and Dr. Klompien on Sunday.

The defense also presented evidence that the doctor on weekend duty did not merely listen to patients passively before prescribing a course of treatment. It was the custom and practice of the office for the doctor on duty to aggressively pursue the existence of symptoms that may require the immediate personal attention of the doctor, referral to the emergency room of the hospital, or the setting of an office appointment for the next day.

Dr. Klompien testified that even if he had examined Mr. Swaw on Sunday, he would not have drained the hematoma since his office notation from the following Tuesday's examination revealed, by lack of negative notes, that the hematoma was neither expanding nor jeopardizing the testicle on Sunday.

One of defendants' expert, Dr. Wohlberg, testified that Dr. Klompien met the standard of care. It was not necessary to examine Mr. Swaw on Sunday. He opined that Mr. Swaw's hematoma had fully expanded prior to the first phone call on Saturday. The swelling was indicative of expansion and based upon his review of the records and depositions, the swelling began to decrease early Saturday. Another defense expert, Dr. Schaeffer, testified that Dr. Nasralla met the standard of care because the symptoms that plaintiff complained of on Saturday were typical for the first post-operative day.

The jury returned verdicts against Dr. Klompien and in favor of Dr. Nasralla. The trial court denied post-trial motions and entered judgments on the verdicts. Dr. Klompien appeals from the judgment against him seeking judgment notwithstanding the verdict, a new trial, or a remitt...