Theofanis v. Sarrafi
| Decision Date | 19 May 2003 |
| Docket Number | No. 1-01-0237.,1-01-0237. |
| Citation | 274 Ill.Dec. 242,339 Ill. App.3d 460,791 N.E.2d 38 |
| Parties | Glorinda M. THEOFANIS, Plenary Guardian of the Estate and Person of Sofia Beniamin, a Disabled person, and Mooshi Beniamin, Plaintiffs-Appellants, v. Ghodratollah T. SARRAFI and Health Care Service Corporation, d/b/a Blue Cross Blue Shield of Illinois, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Motherway, Glenn & Napleton, Chicago (Nicholas J. Motherway and Daniel T. Madigan; Lynn D. Dowd, Naperville, Illinois, of counsel), for Appellant.
Swanson, Martin & Bell, Joseph P. Switzer and Aiju C. Thevatheril, Chicago, for Appellees.
Health Care Service Corporation of Chicago, Carolyn H. Clift, Michael Best & Friedrich LLC, Douglass G. Hewitt, Scott L. D'Angelo and Kristen M. Lehner, Chicago, for Blue Cross Blue Shield.
Ghodratollah Sarrafi, M.D., participated in a health maintenance organization (HMO) of Health Care Service Corporation (HCSC). On June 3, 1996, Sarrafi received the results of a test that showed a dangerous mass in the heart of Sofia Beniamin, one of Sarrafi's patients. Eight days later Sofia suffered a stroke that left her unable to speak. Sofia's daughter, as her guardian, and Sofia's husband sued Sarrafi and HCSC for failing to inform Sofia of the results of the test.
At the jury trial the court allowed Sarrafi to testify from notes he made of conversations with Sofia. The jury found both defendants liable but assessed $0 in damages. The trial court amended the verdict to a finding in favor of Sarrafi. The court also entered judgment notwithstanding the verdict in favor of HCSC because the court found the evidence of agency insufficient.
We hold that the inconsistent verdict, which may have resulted from compromise, requires remand for retrial. The Dead-Man's Act (the Act) (735 ILCS 5/8-201 (West 2000)) precludes the testimony concerning conversations with Sofia, even if the doctor made contemporaneous notes of the conversations. The plaintiffs presented sufficient evidence to present to a jury on the issue of implied agency of Sarrafi for HCSC. Therefore, we reverse the judgment of the trial court and remand for retrial.
Mooshi and Sofia Beniamin immigrated to the United States from Iran, with their three daughters, in 1979. Mooshi found work at a manufacturing plant and obtained health insurance for his family through that job. Sofia fell ill in 1985. The insurance paid for her visit to Sarrafi, who had also immigrated to the United States from Iran. Sarrafi noted the stenosis, or narrowing, of a valve in Sofia's heart. She continued to see Sarrafi fairly regularly over the following years. In 1986 Sarrafi diagnosed Sofia's hypertension, and in 1991 he also discovered that she suffered from atrial fibrillation, which is an irregular heartbeat.
In 1995 Mooshi's employer changed the insurance options available to its employees. The new insurer, HCSC, allowed employees three options. They could receive traditional insurance, or they could enroll in the BlueAdvantage HMO or their preferred provider organization (PPO). Mooshi chose the HMO, and he chose Sarrafi, from HCSC's list, as the family's primary care physician. HCSC had a contract with Holy Family Physicians Organization (Holy Family), and Sarrafi belonged to that organization. HCSC compensated Holy Family for the health care it provided, and Holy Family paid Sarrafi for his work.
At an office visit in 1996, Sarrafi arranged an echocardiogram (EKG) for Sofia. Dr. Vupparahalli Ramesh performed the EKG on June 3, 1996. When he received the films from the test later that day, Ramesh discovered "a mass effect near the apex [of the heart] * * *, consistent with the presence of thrombus." A thrombus is a blood clot. Small particles, or emboli, can break off a thrombus in the heart at any time. The emboli from the thrombus can then course through the bloodstream and lodge in distant parts of the body, cutting off the flow of blood to those areas. Emboli in the brain may cause a stroke.
Ramesh promptly called Sarrafi to report the finding. Ramesh suggested that Sofia should undergo a transesophageal EKG to determine in better detail the nature of the mass. Sarrafi did not tell Sofia about the EKG results or the need for a transesophageal EKG. Sofia called Sarrafi's office on June 8, 1996, but she did not hear the results of the EKG or of the need for further tests. Sarrafi did not speak to Sofia between June 3, 1996, and June 11, 1996.
Sofia suffered a severe stroke on June 11, 1996. The stroke left her unable to speak or walk. Although Sofia eventually regained very limited ability to walk, she never regained the power of speech, not even to the extent of nodding to mean yes in response to questions. A court found Sofia legally disabled and appointed Sofia's eldest daughter, Glorinda Theofanis, plenary guardian of Sofia's estate and person.
In December 1996 Glorinda, in her role as guardian of Sofia's estate, brought this lawsuit. After several amendments to the complaint, Glorinda and Mooshi reduced their claims to four counts. In the first count Glorinda alleged that Sarrafi negligently failed to inform Sofia of the results of the EKG, negligently failed to order further diagnostic tests, and negligently failed to hospitalize Sofia and treat her with Heparin, a blood-thinning medication that could dissolve the clot, after he learned the results of the EKG. Glorinda sought to recover damages from HCSC, as well as Sarrafi, on the theory that Sarrafi acted as an apparent or implied agent of HCSC. In the second count Mooshi pled the same facts and sought recovery from the same parties for his loss of consortium. In count III Glorinda alleged that the contract between HCSC and Holy Family created incentives for physicians affiliated with Holy Family to minimize the hospitalization of patients and the number of diagnostic tests performed. She alleged that Sarrafi breached his fiduciary duty to disclose the financial incentives. In count IV Mooshi alleged that the same breach of fiduciary duty led to his loss of consortium.
Sarrafi denied the essential charges of the complaint and added an affirmative defense that Sofia negligently contributed to her injury by refusing the reasonable advice of her physician. Sarrafi alleged that at an office visit in May 1996 Sofia declined Sarrafi's offer to hospitalize her and administer Coumadin, a blood-thinning medication related to Heparin. In support of the allegations, Sarrafi attached to the answer handwritten notes Sarrafi made concerning the office visits in May 1996.
At trial plaintiffs called Sarrafi as an adverse witness. Sarrafi admitted that Ramesh called him on June 3, 1996, following the EKG, and told Sarrafi that he found a mass in Sofia's heart that could be a tumor or a thrombus. Sarrafi also admitted that in the written report he received shortly thereafter, Ramesh said he found a "soft * * * friable mass, giving the appearance of a thrombus." Either a tumor or a thrombus could embolize at any time, but a thrombus carries a greater risk of embolization.
According to Sarrafi, he tried to call Sofia to tell her about the test results immediately after he heard from Ramesh. Either the call went unanswered or the line was busy. Over the following days Sarrafi tried to call Sofia five or six times, but he never got through. He did not ask anyone on his staff to call Sofia. Although all of Sofia's daughters were Sarrafi's patients, he never tried to contact any of them. He sent no letter concerning the results of the EKG.
Sarrafi's attorney asked Sarrafi on cross-examination to read to the jury the notes Sarrafi made after Sofia came to his office on May 28, 1996. Plaintiffs objected that the testimony would violate the Act. The court overruled the objection. Sarrafi testified that in his notes he wrote:
Sarrafi testified that in his opinion, Sofia faced about an 80% probability of having a stroke within a year if she had no medication.
Glorinda testified that as of June 3, 1996, her parents had call waiting and a functioning answering machine.
Plaintiffs' expert, Dr. Franklin Wefald, testified that the applicable standard of care required Sarrafi to notify Sofia immediately about the EKG results and to warn her that she faced a potentially devastating complication if she did not start taking a strong blood thinner. In Dr. Wefald's opinion, Sarrafi violated the standard of care by failing to use all available means to contact Sofia. Given the severity of the situation, Sarrafi should have asked police to go to Sofia's home if he tried to call her and received no answer. If Sarrafi had contacted Sofia he should have emphasized the severity of the risk of stroke and the necessity of hospitalization and the use of anticoagulants like Heparin. According to Wefald, if Sarrafi had given Sofia appropriate advice based on the EKG, the anticoagulants likely would have prevented Sofia from suffering the stroke.
On cross-examination Wefald estimated about a 20% to 25% probability that a patient with atrial fibrillation and mitral valve stenosis would suffer a stroke within a year without anticoagulant therapy. He estimated that the probability of stroke doubled or tripled in the presence of a thrombus in the heart. Thus, his estimate of the risk Sofia faced nearly matched Sarrafi's estimate of that risk. Defense counsel suggested that the risk of a stroke in the week from June 3 to June 11, 1996, was therefore about 1%, which he arrived at by dividing 2 x 25% by 52 weeks in a year. Wefald answered that the simple division of the probability did...
To continue reading
Request your trial
-
Fleming v. Moswin
...of that evidence. Plaintiffs contend that their argument is supported by this court's decision in Theofanis v. Sarrafi, 339 Ill.App.3d 460, 274 Ill.Dec. 242, 791 N.E.2d 38 (2003). In that medical malpractice case, this court found that the trial court improperly allowed a defendant doctor (......
-
Zang v. Alliance Fin. Servs. of Ill., Ltd.
...should come from the legislature, and not under the guise of judicial construction of the statute.” Theofanis v. Sarrafi, 339 Ill.App.3d 460, 274 Ill.Dec. 242, 791 N.E.2d 38, 53 (2003) (citations omitted). Lastly, this Court's Chambers recently received a call from plaintiff's counsel who i......
-
Cimino v. Sublette
...nevertheless entered a verdict finding in favor of the plaintiff and awarding no damages); see also Theofanis v. Sarrafi, 339 Ill.App.3d 460, 474–75, 274 Ill.Dec. 242, 791 N.E.2d 38 (2003) (holding that retrial was necessary where the jury's verdict formally found the physician acted neglig......
-
Beard v. Barron, 1-05-1006.
...relies on Vazirzadeh v. Kaminski, 157 Ill.App.3d 638, 110 Ill.Dec. 65, 510 N.E.2d 1096 (1987), and Theofanis v. Sarrafi, 339 Ill.App.3d 460, 274 Ill.Dec. 242, 791 N.E.2d 38 (2003), to argue this testimony was In Vazirzadeh, the issue was whether the defendant doctor failed to diagnose and t......
-
Misconduct
...court subsequently gave a deadlocked jury admonition, and there was a later mistaken verdict. ILLINOIS Theofanis v. Sarrafi , 791 N.E.2d 38, 49-50 (Ill. App. 2003). The trial court did not abuse its discretion by denying motion for new trial where the record strongly suggested a compromise ......
-
Witness
...are always admissible “business records,” the court later found this as dicta, with which it disagreed, in Theofanis v. Sarrafi , 339 Ill. App. 3d 460, 477 (Ill. App. Ct. 2003). In re Estate of Maslowski , 204 Ill. App. 3d 379, 386, 561 N.E.2d 1183 (Ill. App. Ct. 1990). Permitting the purpo......