York v. El-Ganzouri

• Citation: 288 Ill.Dec. 529,353 Ill. App.3d 1,817 N.E.2d 1179
• Decision Date: 30 September 2004
• Docket Number: No. 1-03-0259., No. 1-03-0222
• Parties: James M. YORK, and Elizabeth H. York, Plaintiffs-Appellees, v. Abdel Raouf EL-GANZOURI, University Anesthesiologists, S.C., and Rush Presbyterian-St. Luke's Medical Center, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

817 N.E.2d 1179

353 Ill. App.3d 1

288 Ill.Dec. 529

James M. YORK, and Elizabeth H. York, Plaintiffs-Appellees, v. Abdel Raouf EL-GANZOURI, University Anesthesiologists, S.C., and Rush Presbyterian-St. Luke's Medical Center, Defendants-Appellants.

Nos. 1-03-0222, 1-03-0259.

Appellate Court of Illinois, First District, First Division.

September 30, 2004.

Francis Raymond Petrek, Jr., Krista R. Frick, Bollinger, Ruberry & Garvey, for Abdel Raouf El-Ganzouri, M.D. and University Anesthesiologists, S.C.; R. Dennis Rasor, Dianne L. Jennings, Anderson, Bennett & Partners, Chicago, for Rush Presbyterian-St. Luke's Medical Center.

Robert A. Clifford, Timothy S. Tomasik, Clifford Law Offices, David A. Novoselsky, Leslie J. Rosen, Novoselsky Law Offices, Chicago, for Appellee.

Justice GORDON delivered the opinion of the court:

Defendants, Abdel Raouf El-Ganzouri, M.D., his anesthesiology practice group, University Anesthesiologists, S.C. (hereinafter collectively referred to as Dr. El-Ganzouri), and Rush Presbyterian-St. Luke's Medical Center (Rush), appeal from a $12,598,591 medical malpractice judgment entered against them and in favor of plaintiff, James York, M.D., pursuant to a jury's verdict. On appeal, Dr. El-Ganzouri contends that the trial court's time limitation on voir dire, and effective preclusion of the use of Dr. York's day-in-the-life video by the voir dire time restriction, precluded him from receiving a fair trial. He also contends that the trial court erred in allowing his expert witness to be impeached with Supreme Court Rule 213(g) (177 Ill.2d R. 213(g)) interrogatory answers not signed by the expert. Finally, he contends that the trial court should have reduced Dr. York's damages for past medical expenses by the amounts already compensated for by his health insurance. Rush, in addition to adopting Dr. El-Ganzouri's arguments, contends that the trial court should have granted its motion for directed verdict, and if not that motion, then its motion for judgment non obstante verdicto, or, at the very least, granted its request for a new trial because Dr. York proved neither that Rush held out Dr. El-Ganzouri as its agent nor that he sufficiently relied on Rush for his care for vicarious liability to attach. For all the reasons discussed below, we affirm as to both defendants.

I. FACTUAL BACKGROUND¹

Dr. James York was an orthopedic surgeon. He also led an active lifestyle outside of his work, running marathons, playing tennis, and providing free medical treatment in Africa through a church-sponsored program. However, athletics and aging led to knee problems for Dr. York requiring multiple surgeries. Dr. York always sought out the best surgeon for the procedures he required. Besides Chicago, Dr. York had traveled to Toronto, Canada, Pennsylvania, and Baltimore, Maryland, for knee surgeries.

On February 9, 1998, Dr. York was to undergo a cemented total knee arthroplasty in his left knee. This was to be his third surgery at Rush, all performed by his chosen surgeon, Dr. Rosenberg. Dr. El-Ganzouri and Dr. Miller, an anesthesiology resident at Rush at the time, came to perform a combined spinal epidural on Dr. York prior to the surgery.

In a combined spinal epidural procedure, a local anesthetic is first applied to the patient's back. This anesthetic prevents the patient from experiencing any pain when a large "Touhy" needle is inserted between the bones in the spine, but short of the spinal column itself. A finer "Whittaker" needle is then advanced through the Touhy needle. The Whittaker needle pierces the dura, a thick skin protecting an area known as the subarachnoid space which contains cerebral spinal fluid and the spinal cord itself. A doctor knows he has pierced the dura by feeling a pop, described at trial as akin to the feeling a user of a fork experiences when piercing the skin of a sausage. At that point, the anesthesiologist can confirm that he has accessed the subarachnoid space, and is ready to inject anesthesia, by aspirating cerebral spinal fluid. Needles are supposed to enter through the lumbar area of the spine, beneath the end of the spinal cord itself. The end of the spinal cord is known as the conus. By making the injection through the lumbar area, the anesthesiologist avoids the risk of contacting the spinal cord, though he still faces the risk of striking a complex of nerves that hang from the conus like a horse's tail, and are thus known as the cauda equina. After the injection of the spinal anesthesia, an epidural catheter is placed through the same insertion point, but short of the subarachnoid space, allowing for ongoing administration of anesthesia as needed.

Something happened during Dr. York's combined spinal epidural. Twice, as Dr. El-Ganzouri inserted needles into his back, Dr. York expressed feeling pain. According to Dr. El-Ganzouri, they were fairly mild expressions; but, according to Dr. Miller, they were screams the likes of which he had never heard before. During one of the needle insertions, Dr. York's right thigh cramped and his right calf swelled. Dr. York subsequently went numb as the anesthetic took effect and underwent surgery.

After the knee surgery, Dr. York could not feel or move his right leg. He had lost bowel and bladder control, and experienced sexual dysfunction. Dr. York underwent an extensive course of rehabilitation, but only with partial success. His caregivers anticipated that his deficits would increase with age.

Dr. York and his wife filed a complaint against Dr. El-Ganzouri and University Anesthesiologists. They later amended the complaint to include Rush on the theory that Dr. El-Ganzouri was Rush's apparent agent at the time of his combined spinal epidural. Both defendants answered the complaints and discovery ensued.

The plaintiffs charged that Dr. El-Ganzouri breached the standard of care for anesthesiologists by inserting the spinal needles too high on Dr. York's spine, which allowed him to then pierce and directly insert anesthesia into Dr. York's spinal cord, killing nerves and causing his injuries. Plaintiffs claimed that Dr. El-Ganzouri erroneously injected anesthetic even as he was on notice of improper needle placement by Dr. York's screams. Plaintiffs contended that the error came about because Dr. El-Ganzouri felt pressure to perform the procedure quickly, and because he lost track of the proper disc space between which to insert the needles. Dr. El-Ganzouri had marked the insertion point by making an impression with his thumbnail, but he subsequently turned away to prepare more of the instruments needed for the procedure. The Yorks argued that Rush was accountable for Dr. El-Ganzouri's negligence because nobody informed Dr. York that he was an independent contractor, because he appeared to be a hospital employee based on the language in the consent form Dr. York signed and by his wearing scrubs with Rush's name and insignia on them, and because Dr. York relied on the hospital to provide the anesthesiologist for the procedure. Dr. El-Ganzouri countered that he met the standard of care in performing the combined spinal epidural and that Dr. York's injuries actually resulted from a spinal infarction, meaning a deprivation of blood to the spine, that resulted from a drop in blood pressure during the surgery. He contended that Dr. York's expressions of pain resulted from needles striking nerves in the cauda equina, which would not have produced his severe injuries, nor been a deviation from the standard of care. Dr. El-Ganzouri denied that he ever injected anesthesia while Dr. York expressed pain, instead, withdrawing and reinserting the needle until there were no expressions of pain from Dr. York. Rush, in turn, denied that Dr. York relied on it to provide an anesthesiologist, claiming that Dr. York relied on his son Jeff, who was an anesthesiology resident at Rush and fully aware that University Anesthesiologists was a group of independent contractors, to choose a specific anesthesiologist for the procedure.² Rush further denied that Dr. York could reasonably have believed that Dr. El-Ganzouri was a Rush employee because he had previously received a bill from University Anesthesiologists for one of his prior surgeries, and because, based on his own experience as an independent contractor in the medical profession, working with independent anesthesiologists, Dr. York had to know that anesthesiologists were independent contractors.

II. ANALYSIS OF DR. EL-GANZOURI'S CLAIMS

A. Alleged Unreasonable Time Restriction on Voir Dire

On May 28, 2002, with trial to begin the following Monday, Judge Flannery reminded the parties of his policies for voir dire. He explained that each side was limited to 20 minutes of questioning per panel of 14 prospective jurors, meaning that Dr. El-Ganzouri and Rush would receive 10 minutes apiece per panel. He encouraged the attorneys to address the panel as a group. Judge Flannery advised that venirepersons providing answers that suggested an inability to be fair or to serve based on significant hardship would be called back to his chambers for follow-up questioning. Defendants had no objection at that time.

The following day, May 29, the parties again came before the trial court. At that time, counsel for Dr. El-Ganzouri stated:

"I did though want to ask the court * * * if the court would reconsider maybe giving the defendants a little bit more time. I did the math. It works out to just under 43 seconds per venire person * * *.

* * *

I have been told by the plaintiff's attorney that he perceives this is a case that could potentially be larger than the limits of the doctor, and I respectfully ask the court to reconsider giving us more than 43 seconds per person."

Rush's counsel also indicated that he "would take advantage of a little bit more time if the court was so inclined." The trial court denied the request, however, and the defendants did not pursue the matter further. Jury selection...