Wilbourn v. Cavalenes
| Decision Date | 19 February 2010 |
| Docket Number | No. 1-08-3603.,1-08-3603. |
| Citation | 923 N.E.2d 937 |
| Parties | Tonya WILBOURN, Plaintiff-Appellant, v. Mark CAVALENES, M.D., and Rush Oak Park Hospital, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
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Muslin & Sandberg, Steve Muslin, Craig Sandberg, Chicago, for Appellant.
Cassiday Schade LLP, Richard Huettel, Julie Teuscher, Chicago, for Appellee Cavalenes.
Baker & Enright, Robert S. Baker, Chicago, for Appellee Rush Oak Park Hospital.
Plaintiff Tonya Wilbourn, 40 years old at the time of her jury trial, filed this action to recover damages allegedly caused by the medical negligence of defendants Dr. Mark Cavalenes, a board-certified orthopedic surgeon, and Rush Oak Park Hospital, in her care and treatment for a transverse fracture to her right femur suffered as a result of a motor vehicle collision. Dr. Cavalenes transfixed plaintiff's fractured femur using a 12-hole dynamic compression plate manufactured by Synthes, Inc., a medical devices manufacturer, which failed within a month of implantation necessitating a second surgery where the failed compression plate was removed and never recovered. A compression plate is a metallic surgical plate which can be affixed to the surface of a long bone to set a bone fracture. A dynamic compression plate is designed to exert dynamic pressure between the bone fragments to be transfixed, and is secured to the bone to be transfixed by screws. Attorneys' Dictionary of Medicine and Word Finder, C-117 (2007).
The main issue at trial was whether Dr. Cavalenes used a narrow Synthes 12-hole dynamic compression plate rather than a broad Synthes 12-hole dynamic compression plate to transfix plaintiff's fractured femur. Dr. Cavalenes testified that he used a broad plate, but after it broke and was removed, he sent the plate to pathology and it was never recovered.
Both narrow and broad Synthes dynamic compression plates are roughly 4.5 millimeters thick. The narrow Synthes compression plate, part no. 224-12, is approximately three-fourths inches wide and contains 12 holes where screws are placed to affix the plate to the femur, which are arranged in a straight line along the length of the plate. The broad Synthes compression plate, part no. 226-12, is approximately one inch wide and contains 12 holes where screws are placed to affix the plate to the femur, which are arranged in alternating fashion from side to side along the length of the plate. All parties' expert witnesses testified that Dr. Cavalenes would have deviated from the standard of care by using a narrow compression plate based on plaintiff's body weight. All parties agree that plaintiff was obese at the time of her first surgery, however; the record does not state plaintiff's body weight or height at that time. Plaintiff's sole theory against Rush was based on the doctrine of apparent agency. The jury rendered a verdict in favor of defendants and against plaintiff, and the trial court entered judgment on that verdict. Plaintiff filed a posttrial motion for a new trial, which was denied.
Plaintiff appeals, arguing that the trial court: (1) erred by striking one basis for her controlled expert's opinion that Dr. Cavalenes used a narrow dynamic compression plate to transfix her femoral fracture because a broad dynamic compression plate would not have failed within a month of implantation and instructing the jury to disregard her expert's statement, "I have never seen or heard of a broad plate failing or breaking in the first month after implantation," as violative of the disclosure requirements of Illinois Supreme Court Rule 213(f)(3) (177 Ill.2d R. 213(f)(3)); and (2) abused its discretion by denying plaintiff's posttrial motion for a new trial based on Dr. Cavalenes' counsel's prejudicial comments during his cross-examination of plaintiff's controlled expert and in his closing argument. We affirm.
Plaintiff severely injured her right leg when she was involved in a motor vehicle collision on February 13, 2002. Emergency ambulatory services arrived shortly after the motor vehicle collision and transported plaintiff to the emergency room of Rush Oak Park Hospital in Oak Park, Illinois, where she was diagnosed with a mid-shaft transverse fracture to her right femur. The emergency room physician who treated plaintiff upon her arrival to the emergency room referred plaintiff to Dr. Cavalenes, the "on-call" staff orthopedic surgeon at Rush.
Dr. Cavalenes operated on plaintiff during the evening of February 15, 2002. Plaintiff's surgery began at 7:40 p.m. and ended at 11:10 p.m. Dr. Cavalenes attempted to transfix plaintiff's right femur by using an antegrade intramedullary rod1 for one and one-half hours, but was unsuccessful. A retrograde intramedullary rod was not immediately available and Dr. Cavalenes decided to affix a dynamic compression plate, to transfix plaintiff's fractured femur. Dr. Cavalenes testified at trial that he was unable to secure a retrograde intramedullary rod immediately prior to plaintiff's surgery. He testified that he contacted Rush's "equipment representative," by telephone, when he was unable to find a retrograde intramedullary rod in the hospital inventory, and that the "equipment representative" advised him that a retrograde intramedullary rod could be delivered in approximately one to one and one-half hours. Dr. Cavalenes then chose to use the compression plate instead. No "equipment representative" testified at trial. A 12-hole dynamic compression plate was available at Rush, which Dr. Cavalenes laterally affixed to plaintiff's femur. Plaintiff remained at Rush overnight for 15 days.
Plaintiff was discharged from Rush on March 1, 2002, after undergoing physical therapy for approximately two weeks after surgery. Upon discharge from Rush, plaintiff was instructed to ambulate with the assistance of a walker maintaining only "toe-touch" weight bearing on her right leg. At trial, plaintiff testified that her physical therapist explained to her that "toe-touch" weight bearing meant that weight necessary only to maintain her balance with the use of a walker. The discharge instructions included in the record as evidence shows that plaintiff was to maintain "toe-touch" weight bearing on her right leg until further instructions from Dr. Cavalenes. Plaintiff was scheduled for a "follow-up" examination with Dr. Cavalenes two weeks after her March 1, 2002, discharge from Rush.
On March 15, 2002, plaintiff left her apartment intending to go to a bank. To leave her apartment plaintiff was required to descend several steps. Plaintiff testified that her right leg "felt weird" when she applied weight to it and her leg suddenly "just collapsed," and she fell. Plaintiff was transported by emergency ambulatory services to West Suburban Medical Center in Oak Park where she underwent a second surgery performed by Dr. Cavalenes. Three anterior-posterior view x-rays taken at West Suburban showed that the dynamic compression plate affixed to plaintiff's right femur had broken. No lateral view x-rays were taken.
During the second surgery, Dr. Cavalenes explanted the dynamic compression plate which he had affixed to plaintiff's femur during the first surgery and transfixed plaintiff's femur by using a retrograde intramedullary rod to give it more support. Dr. Cavalenes testified that he had the broken dynamic compression plate "sent to pathology," but that he could not recall whether he received a report from pathology. The broken dynamic compression plate was never recovered.
On March 15, 2004, plaintiff filed a complaint in the circuit court of Cook County against Dr. Cavalenes, West Suburban, and Rush.2 In her complaint plaintiff alleged that Dr. Cavalenes negligently performed surgery on February 15, 2002, and that Rush was liable for Dr. Cavalenes' negligence based upon the doctrine of apparent agency.
On July 10, 2007, plaintiff filed answers to Illinois Supreme Court Rule 213 interrogatories identifying Dr. Philip Kregor, a board-certified orthopedic surgeon from Vanderbilt Medical School, as plaintiff's sole Rule 213(f)(3) controlled expert witness. Plaintiff's disclosure stated that Dr. Kregor would opine, among other things, that based upon his review of the "available medical images," that Dr. Cavalenes must have affixed a narrow dynamic compression plate to plaintiff's femur, not the broad plate that Dr. Cavalenes testified to; that the use of a narrow compression plate would have been a deviation from the standard of care as a result of plaintiff's body weight; and that the narrow dynamic compression plate failed on March 15, 2002, because there was no evidence of a fall that caused the compression plate to break because plaintiff claimed her leg "just collapsed." No additional basis for Dr. Kregor's opinion is contained in plaintiff's Rule 213 disclosure.
In his discovery deposition, Dr. Kregor also opined that Dr. Cavalenes deviated from the standard of care in performing plaintiff's first surgery by using a narrow dynamic compression plate. Dr. Kregor based his opinion that a narrow dynamic compression plate was used in the February 15, 2002, surgery on his review of the anterior-posterior view x-rays of plaintiff's right femur taken after the affixed dynamic compression plate failed. Dr. Kregor testified that the x-rays showed that the screws used to secure the plate to the femur formed a straight line which was characteristic of a narrow dynamic compression plate. Dr. Kregor testified that, like a narrow plate, a broad plate contains 12 holes from top to bottom, however, the holes in a broad plate alternate from side to side and were not formed in a straight line. Dr. Kregor also testified that the width of the plate on the x-rays he reviewed appeared to be...
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