Williams v. Dols

• Decision Date: 25 October 2017
• Docket Number: NO. 4-17-0032,4-17-0032
• Citation: 2017 IL App (4th) 170032 -U
• Parties: DONALD WILLIAMS, as Executor of the Estate of Nancy Williams, Plaintiff-Appellant, v. KENNETH DOLS, M.D.; and CARLE HEALTHCARE INC., a Corporation, d/b/a CARLE PHYSICIAN GROUP, f/k/a CARLE CLINIC ASSOCIATION, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 170032-U

DONALD WILLIAMS, as Executor of the Estate ofNancy Williams, Plaintiff-Appellant, v. KENNETH DOLS, M.D.; and CARLE HEALTHCARE INC., a Corporation,d/b/a CARLE PHYSICIAN GROUP,f/k/a CARLE CLINIC ASSOCIATION, Defendants-Appellees.

NO. 4-17-0032

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

October 25, 2017

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Champaign County

No. 13L170

Honorable Michael Q. Jones, Judge Presiding.

PRESIDING JUSTICE TURNER delivered the judgment of the court.

Justices Knecht and DeArmond concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court did not abuse its discretion in denying plaintiff's attempt to introduce the county coroner's report and death certificate and the titles and authors of articles plaintiff's expert relied on for his opinion.

(2) The trial court did not abuse its discretion in denying plaintiff's "issues" and "missing evidence" jury instructions.

¶ 2 In September 2013, plaintiff, Donald Williams, as executor of the Estate of Nancy Williams, filed a complaint against defendants, Dr. Kenneth Dols and Carle Healthcare Inc., d/b/a Carle Physician Group, f/k/a Carle Clinic Association (Carle), as a result of Nancy Williams's death. In September 2016, a jury returned a verdict for defendants. On December 9, 2016, the trial court denied plaintiff's posttrial motion. Plaintiff appeals, arguing the court abused its discretion by not allowing plaintiff to introduce (1) the titles and authors of articles on which plaintiff's expert witness relied in forming his opinion and (2) the county coroner's report and death certificate for Nancy Williams. Plaintiff also argues the court abused its discretion by denying plaintiff's proposed "issues" and "missing evidence" jury instructions. According to plaintiff, the trial court erred in not ordering a new trial because of these errors. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On September 1, 2011, Nancy Williams fell and injured her knee. Donald Williams, Nancy's husband, took her to Carle Foundation Hospital. Nancy's leg was x-rayed, and she was discharged. The X-rays were forwarded to an orthopedic surgeon for review. Later that morning, the orthopedic clinic asked Nancy to come to the clinic right away.

¶ 5 Dr. Dols diagnosed Nancy with a fractured patella and recommended surgery, a patellar fixation. On September 2, 2011, Dr. Dols performed the surgery. After the surgery, Dr. Dols prescribed Nancy with Lovenox injections while she was in the hospital. Lovenox is a blood thinning medication designed to prevent blood clots and deep venous thrombosis, an inherent risk of a patellar fixation surgery.

¶ 6 On September 4, 2011, Nancy was discharged from the hospital and returned home. She was given an additional seven-day prescription for Lovenox and a prescription for pain medication. Nancy spent most of her time on the couch, and her husband responded to her needs, including administering her Lovenox injections. Aside from trips to the bathroom and one trip to her son's house for a shower, Nancy did not walk often after returning home from the hospital.

¶ 7 On September 13, 2011, Nancy saw Dr. Dols. Dr. Dols did not recall the visit and no narrative note existed for the appointment. Donald Williams testified Dr. Dols examined Nancy's knee and ordered her a new knee brace, which allowed for a greater range of motion. Dr. Dols also asked about Nancy's physical therapy. According to Donald, Dr. Dols indicated hewould enter an order for therapy to begin when told her therapy had not started. Nancy received the new knee brace before leaving Dr. Dols's office.

¶ 8 Nancy's activity level did not change after the appointment. She still spent most of her time on the couch. Donald called Dr. Dols's office on September 15, September 19, and September 20, 2011, to ask about Nancy's physical therapy. Dr. Dols ordered physical therapy on September 22, 2011. On September 23, between 3:30 and 4 a.m., Donald heard Nancy call for help. He called 9-1-1. Emergency personnel responded and took Nancy to the hospital. She died at approximately 5:30 p.m. that day. No one disputes the cause of her death was a pulmonary embolism.

¶ 9 Dr. Harish Hosalkar, an orthopedic surgeon and plaintiff's expert witness, testified Dr. Dols deviated from accepted medical practice in Nancy's treatment and caused Nancy's death. In his evidence deposition, Dr. Hosalkar offered the following opinion:

"Ms. Nancy Williams was an elderly patient, 66 years old, with a fracture of her left knee or patella, which is one of the bones of the knee joints. *** So she had a complete fracture of the patella which was separated.

She had risk factors including the fact that she was obese. She underwent surgery for fixation of this fracture. And based on the risk factors that she had, she required to be protected to decrease her risk, if not eliminate, of getting a clot in the leg that could possibly go to her heart.

In my opinion, she did have risk factors at the time of surgery that demanded protection, and subsequently, given the way she was not ambulating adequately, not moving her joints and doing physical therapy modalities, theseprophylactic measures should have been continued until the point that she was adequately ambulant.

She received prophylaxis in the hospital and then seven days following discharge. And then when she was seen on 13th of September, the records which are somewhat unclear to me, the prophylaxis clearly was not ongoing at the time and then she eventually developed a fatal pulmonary embolism."

¶ 10 According to Dr. Hosalkar, the standard of care required Dr. Dols to prescribe prophylaxis to Nancy for a minimum of two weeks after surgery, which was when Dr. Dols planned on seeing Nancy. Even after two weeks, because of Nancy's lack of mobility, the prophylactic measures should have been continued until she was adequately ambulant. His opinion, to a reasonable degree of medical certainty, was that Dr. Dols's failure to conform with accepted medical practice was a cause of Nancy's death.

¶ 11 Dr. Tad Gerlinger, also an orthopedic surgeon and defendants' expert witness, testified Dr. Dols did not deviate from the standard of care in his treatment of Nancy.

¶ 12 After hearing the evidence presented, the jury returned a verdict for defendants.

¶ 13 In December 2016, the trial court denied plaintiff's posttrial motion. This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 We generally will only disturb a trial court's rulings on jury instruction and evidentiary issues if the court abused its discretion. Schnitker v. Springfield Urban League, Inc., 2016 IL App (4th) 150991, ¶ 33, 67 N.E.2d 583; Jackson v. Graham, 323 Ill. App. 3d 766, 773, 753 N.E.2d 525, 531 (2001). A trial court abuses its discretion if it ignores recognized legal principles and exceeds the bounds of reason, acts arbitrarily, or takes a position no reasonableperson would adopt. Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 1000, 874 N.E.2d 100, 110 (2007).

¶ 16 A. Evidentiary Rulings

¶ 17 1. Expert Witness Testimony

¶ 18 We first address plaintiff's argument the trial court abused its discretion in not allowing his expert witness, Dr. Hosalkar, to recite the titles and authors of peer review articles he relied on as foundation for his opinion. Plaintiff cites our supreme court's decision in Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 298-99, 775 N.E.2d 964, 986-87 (2002), for the proposition an expert witness must be allowed to testify with regard to the basis for his opinion, the content of material he reasonably relied upon to explain his opinion, and the facts or data upon which his opinion is based.

¶ 19 The trial court did not abuse its discretion. Schultz does not say a trial court must allow an expert witness to list the title and author of every secondary source he reviewed to reach his opinion. In addition, as pointed out by defendants in their brief to this court, Dr. Hosalkar did not testify he was relying on any specific facts or data from those articles. He simply wanted to bolster his own testimony with impressive titles and the names of other doctors.

¶ 20 Even if plaintiff was able to establish the trial court abused its discretion, plaintiff could not establish he suffered any prejudice as a result. "[T]he burden is on the party seeking reversal to establish *** prejudice." Downey v. Dunnington, 384 Ill. App. 3d 350, 389, 895 N.E.2d 271, 302 (2008). The trial court in this case did not prohibit plaintiff from providing the jury with information regarding the basis for Dr. Hosalkar's opinion.

¶ 21 Dr. Hosalkar was able to provide the jury with the bases for his opinion, including information regarding his own expertise in the field and his review of authoritative articles on this topic when preparing his opinion. The trial court let the jury hear Dr. Hosalkar testify:

"I reviewed articles published in literature mainly from orthopedics as well as from nonorthopedic sources related to venous thromboembolism following orthopedic surgeries. I also reviewed the guidelines from the American Academy [of Orthopedic Surgeons], although there are no specific guidelines as such for patella fractures."

Based on the record in this case, the trial court did not strip plaintiff of his ability to provide the bases for his expert's opinion.

¶ 22 2. Coroner's Report and Death Certificate

¶ 23 Plaintiff also argues the trial court erred in refusing to admit the coroner's report and death certificate into evidence. Defendants objected to this evidence and tendered a motion in limine, arguing both documents were inadmissible pursuant to section 8-2201 of the Code of Civil Procedure (735 ILCS 5/8-2201 (West 2016)), which states:

"In actions or proceedings for the recovery of damages arising from or growing out of injuries caused by

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