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FOURTH DIVISION
July 28, 2005

No. 1-03-3605

JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff Biljana Krklus (plaintiff), as the administrator of the estate of her late husband Frank Krklus (Krklus), brought a medical malpractice action against defendants Dr. Robert Stanley and Rush Prudential Health Plans, Stanley's employer. Plaintiff alleged that Stanley negligently failed to diagnose Krklus' aortic dissection which ruptured, causing his death. Defendants denied liability and raised comparative negligence as an affirmative defense. Defendants maintained that Krklus was negligent in failing to follow Stanley's instructions to take medication to bring down his high blood pressure, misinforming Stanley that he was taking his prescribed medication, smoking cigarettes and failing to adequately identify the site of his pain. Following a trial, the trial court entered judgment on a jury verdict for defendants.

On appeal, plaintiff contends (1) that, because comparative negligence was not a proper defense, the trial court erred in allowing defendants to introduce evidence that Krklus failed to follow Stanley's orders to take his blood pressure medication and that Krklus smoked cigarettes; (2) that the trial court erred in limiting the scope of plaintiff's cross-examination of Stanley concerning his postmortem alteration of Krklus' medical records; (3) that the trial court erred in failing to prohibit defendants from engaging in certain acts of misconduct; and (4) that the trial court erred in instructing the jury as to the defense of sole proximate cause and the affirmative defense of comparative negligence. Plaintiff maintains that, because this is a close case, the trial court's errors, in the aggregate, warrant a new trial.

Krklus first visited Stanley, an internal medicine physician employed by Rush Prudential Health Plans, in April 1996, following an elbow injury. During his next visit for the same injury in July 1996, Stanley diagnosed Krklus with hypertension. He prescribed atenolol, a medication designed to reduce blood pressure, and asked that Krklus return a week later so that Stanley could determine whether the medication was effective. A week later, Krklus' blood pressure was somewhat lower. At another visit in September 1996, Krklus reported that he was regularly taking his medication and Stanley determined that Krklus' blood pressure had substantially improved.

Krklus next visited Stanley's office on May 4, 1998, following another injury. Prior to seeing Stanley, Krklus was examined by nurse Christine Falasco. Krklus indicated to Falasco that he had stopped taking his medication more than a year prior to the visit. Stanley determined that Krklus' blood pressure was extremely elevated and prescribed a higher dosage of atenolol and a second blood pressure medication, Dyazide. The following day, Krklus returned to Stanley's office. Stanley determined that Krklus' blood pressure had gone down. At the visit, Krklus indicated that he had previously smoked a half a pack of cigarettes a day but that he had quit a month before. Krklus failed to return for his scheduled follow-up visit a month later.

On Saturday, April 3, 1999, Krklus began to feel ill after cleaning a friend's car. According to the testimony of plaintiff, Krklus' wife, and Christina Krklus, Krklus' daughter, who was home for the weekend, Krklus complained of nausea, a headache and chest pain. By April 9, 1999, Krklus' condition had not improved. Plaintiff called Stanley's office and spoke with nurse Mary Teister. Plaintiff indicated that she believed Krklus' blood pressure was elevated and that he was experiencing chest pain, stomach pain, a decreased appetite, an elevated temperature and diarrhea. Plaintiff told Teister that she suspected Krklus' condition was related to his inhalation of fumes from the cleaning solution he had used to clean his friend's car. Teister recorded the information reported by plaintiff in Krklus' medical chart. Teister offered Krklus an appointment later that day but he chose to make an appointment for the following morning.

On the morning of April 10, 1999, Teister examined and questioned Krklus regarding his symptoms. Krklus indicated that he was experiencing pain below his ribcage, in his abdomen and in his sides and lower back but did not indicate that he was experiencing chest pain. Teister recorded this information in his chart. While Krklus was being examined by Teister, plaintiff reported to Falasco that he had not taken his blood pressure medication in four weeks and that he was experiencing chest pain radiating to his back, profuse night sweats, fatigue and dizziness. Falasco recorded the information provided by plaintiff in Krklus' chart. During his examination, Krklus reported to Stanley that he had been regularly taking his blood pressure medication and that he was experiencing epigastric, or upper abdominal, discomfort but denied that he was experiencing chest pain. An electrocardiogram (EKG) performed on Krklus was normal. Stanley diagnosed Krklus as suffering from gastritis, prescribed Maalox and Pepcid and advised Krklus to avoid alcohol and aspirin and to return in two to four weeks.

On April 16, 1999, plaintiff again contacted Stanley's office, indicating that Krklus' sinus congestion had worsened and requesting a referral to an ear, nose and throat doctor. Teister told plaintiff that in order to be referred to a specialist, Krklus was required to return to the office for another appointment.

Because his condition had worsened, Krklus returned to Stanley's office on April 19, 1999. Prior to being examined, Krklus reported to medical assistant Nina Patel that he was experiencing chest pain. During his examination by Stanley, Krklus again reported epigastric pain but did not report chest pain. Stanley testified that during the April 19, 1999, examination, Krklus reported experiencing similar symptoms to those he reported on April 10, 1999; however, his respiratory symptoms appeared to be more severe. Stanley observed that Krklus was suffering from an elevated blood pressure, a cough and postnasal drip and a knot-like pain in the epigastrium. Stanley ordered a complete blood count, which showed a reduction in the amount of hemoglobin in Krklus' blood, but considered the results unremarkable. The results of a second EKG were normal. Stanley also administered a tuberculosis test. Stanley instructed Krklus to continue taking Pepcid and his blood pressure medication and to return within 48 hours so that his nurse could read the results of his tuberculosis test. Stanley also prescribed antibiotics and cough syrup.

According to plaintiff and Krklus' son, Jimmy Krklus, Krklus' condition continued to deteriorate. On the evening of April 20, 1999, Jimmy went to his parents' house for dinner. When he arrived, Jimmy noticed that Krklus was pale, clammy and feverish. Krklus indicated that he was experiencing stomach, chest and lower-back pain. Jimmy testified that Krklus was unable to eat his dinner and went to bed early that evening. When plaintiff went to bed later on the evening of April 20, 1999, she found Krklus dead. During the weeks before his death, Krklus continued to work, missing only a few days, and appeared for jury duty between the manifestation of his symptoms and his death.

An autopsy performed on Krklus' body showed that he had died of a massive left hemothorax caused by an aortic dissection. An aortic dissection occurs when the innermost layer of the aortic lining ruptures, allowing blood to seep into the area between the outer layers. In this case, the collecting blood caused a second tear, or a rupture, in the outer lining of the aorta and collected in Krklus' pleural cavity, causing his death.

While Jimmy testified that his father was an occasional smoker who never bought a pack of cigarettes and Christina testified that she had never seen her father smoke, Krklus' medical records indicated a history of smoking. The records suggested that Krklus had smoked a half a pack of cigarettes a day for 10 years but none of the witnesses could exactly quantify the amount of cigarettes or how regularly Krklus smoked.

The records from the Walgreens pharmacy where plaintiff testified that her family filled all of its prescriptions showed that Krklus first filled his blood pressure medication prescription on July 31, 1996, after he was diagnosed with hypertension. He refilled his prescription on August 29, 1996, but did not refill it again until May 4, 1998, the date of another appointment with Stanley. Krklus refilled his prescription again on May 24, 1998, June 25, 1998, July 27, 1998, and August 25, 1998. He did not refill his prescription again until April 10, 1999, eight months later.

Plaintiff's expert Adam Robert Silverman, an internal medicine physician, testified that the classic symptom of aortic dissection is ripping abdominal or chest pain that radiates to the patient's back. Other symptoms may include heart palpitations, shortness of breath, pain in an arm or leg, profuse sweating, cough, nausea, diarrhea and epigastric pain. Aortic dissection can be detected by several methods, including by CT scan, and can be treated medically or surgically. Silverman testified that hypertension "may be associated" with aortic dissection. Silverman further testified that he did not consider hypertension a predisposing factor for aortic dissection because "some patients can have dissections without having high blood pressure." Silverman did, however, acknowledge that hypertension can accelerate or aggravate an aortic dissection and that untreated hypertension is a "risk factor" for an aortic dissection. In Silverman's opinion, in failing to identify Krklus' symptoms of aortic dissection and failing to order tests that would aid in its diagnosis, Stanley deviated from the standard of care both on April 10, 1999, and April 19, 1999, causing Krklus' death.

Plaintiff's expert Robert Quigley, a cardiothoracic surgeon, testified that aortic dissection can present itself in a variety of ways, including abdominal pain, and that it may be treated surgically or medically. When asked about the connection between hypertension and aortic dissection, Quigley testified that there is an "association" between the two but that "[t]here is not a cause and effect." However, Quigley noted that, if a known hypertensive patient presents with symptoms of an aortic dissection, "there should be a heightened level of awareness" and "[m]aybe we should be thinking aortic dissection." In Quigley's opinion, the drop in Krklus' hemoglobin was remarkable in that it showed a possibility that Krklus was actively bleeding, perhaps into his pleural cavity. Given Krklus' symptoms, in Quigley's opinion, Stanley should have suspected and attempted to rule out aortic dissection both on April 10, 1999, and April 19, 1999. Consequently, Quigley concluded that Stanley did not comply with the standard of care. Had he complied with the standard by ordering additional tests to determine whether Krklus' aorta had dissected and hospitalizing Krklus, Stanley could have prevented Krklus' death.

Defendants' expert witness Jeffery Kopin, an internal medicine physician, testified that the classic presentation of aortic dissection, a rare disease, is intense tearing or ripping pain in the chest, radiating to the sides and back. In Kopin's experience, the pain associated with an aortic dissection is so intense that the patient will immediately seek emergency room treatment. Sinus congestion, fever and cough are not aortic dissection symptoms. Diarrhea also is usually not a symptom. While excessive sweating may be a symptom, excessive sweating only at night is not a symptom. Kopin found Krklus' drop in hemoglobin unremarkable. In Kopin's opinion, Stanley complied with the standard of care on April 10, 1999, and April 19, 1999, because the symptoms Krklus presented indicated that he was suffering from a viral infection and did not indicate aortic dissection. Kopin testified that the autopsy showed that Krklus suffered from left ventricle hypertrophy, an enlargement of the left ventricle, and cardiomegaly, an enlargement of the heart. Both conditions were caused by his untreated hypertension. Kopin opined that "the untreated blood pressure did contribute to the development of the aortic dissection" and that "[i]f Mr. Krklus had taken his blood pressure medication as directed and if his blood pressure had indeed been controlled, *** I do not believe Mr. Krklus would have developed an aortic dissection." Kopin further opined that even if Krklus' dissection had been diagnosed, he would not have survived.

Defendants' expert witness Ronald Curran, a cardiothoracic surgeon, characterized the classic presentation of aortic dissection as a ripping or tearing chest pain. Often the pain is so severely incapacitating that the patient immediately proceeds to the emergency room for treatment. Neither sinusitis, fever, cough, diarrhea, night sweats nor knot-like abdominal pain is a symptom of aortic dissection. Curran found Krklus' drop in hemoglobin unremarkable. Curran testified that 85% of aortic dissection patients are hypertensive because hypertension weakens the artery wall, predisposing it to dissection. Curran opined that "if Mr. Krklus had taken his blood pressure medicine to control his blood pressure, he would not have developed an aortic dissection." Curran testified that Krklus' enlarged left ventricle and enlarged heart were also caused by his untreated hypertension. Because Krklus' symptoms on April 10, 1999, and April 19, 1999, were not consistent with aortic dissection and were instead consistent with the flu, sinusitis or bronchitis, in Curran's opinion, Stanley's treatment did not fall below the relevant standard of care.

At the close of defendants' case-in-chief, defense counsel read into evidence plaintiff's deposition testimony in which she stated that on the Saturday when Krklus' pain began, he indicated to her that he was having chest pain. Plaintiff stated that when he indicated that he had chest pain, Krklus was referring to pain below his ribcage. She also testified that during her April 9, 1999, phone call to Stanley's office, when she told Teister that Krklus was experiencing chest pain, she was referring to pain below the ribcage.

At the close of evidence, the trial court instructed the jury on the affirmative defense of comparative negligence and the defense of sole proximate cause. The jury returned a general verdict in favor of defendants. Following denial of her posttrial motion, plaintiff appealed.

On appeal, plaintiff first contends that the trial court erred in allowing defendants to introduce evidence that Krklus failed to regularly take his blood pressure medication in support of their theory that Krklus was contributorily negligent in failing to follow Stanley's instructions. Consequently, plaintiff further contends that the trial court erred in instructing the jury on the issue of comparative negligence and tendering the jury a verdict form that allowed it to reduce plaintiff's award in proportion to Krklus' negligence. Defendants argue that plaintiff may not raise this contention on appeal because the jury returned a general verdict that could be supported by a finding that Stanley was not negligent and plaintiff failed to request a special finding as to the basis of the jury's verdict. Plaintiff fails to address this argument in her reply brief. Defendants further argue that the evidence was admissible because their theory that Krklus was comparatively negligent was proper.

When a jury returns a general verdict and more than one theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either theory, and the objecting party, having failed to request a special interrogatory as to the grounds for the verdict, cannot complain. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 492 (2002); Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987). The requirement that the complaining party request a special interrogatory applies both to a complaining plaintiff and a complaining defendant. Moran v. Lala, 179 Ill. App. 3d 771, 787 (1989).

In this case, the jury returned a general verdict in favor of defendants. "This means that the verdict is silent as to the jury's reasons for finding in favor of defendant[s] since the jury did not answer any special interrogatories or enter any specific findings of fact." Guy v. Steurer, 239 Ill. App. 3d 304, 307 (1992). Verdict Form C, returned by the jury, specified that the jury could have entered its verdict either on the basis that (1) Stanley was not negligent or (2) Stanley was negligent but Krklus' contributory negligence was more than 50% of the total proximate cause of his death. We refuse to overturn the jury's verdict because we find ample evidence on the record to support a finding that Stanley was not negligent. Defendants' experts, Kopin and Curran, testified that the classic presentation of aortic dissection is a ripping pain in the chest, radiating to the sides and back. Both stated that abdominal pain is not typical of the disease and that the pain associated with aortic dissection was generally very intense. Furthermore, sinus congestion, fever and cough are not symptoms. On both April 10, 1999, and April 19, 1999, Krklus was experiencing sinus congestion, fever and cough. The jury was presented with conflicting evidence as to whether Krklus was additionally experiencing chest pain or whether his pain was confined to his abdomen. The jury was certainly entitled to find that the evidence that Krklus' pain was confined to his abdominal area was more credible, particularly in light of the impeachment of Krklus' family members concerning the location of his pain.

Because plaintiff failed to request a special interrogatory as to the basis of the jury's finding and because sufficient evidence was presented at trial to support a finding that Stanley was not negligent, we will not overturn the jury's general verdict based on plaintiff's contention.

Additionally, we note that, had the jury returned a verdict for defendants based solely on comparative negligence, we would have upheld the verdict because comparative negligence was an appropriate affirmative defense under the specific facts of the instant case.

"Case law is replete with instances where the physician charged the plaintiff with contributory negligence for behavior that occurred before the patient sought treatment. The courts generally agree that the patient's prior conduct should not be considered in assessing damages." M. Orr,Comment: Defense of Patient's Contribution to Fault in Medical Malpractice Actions, 25 Creighton L. Rev. 665, 687 (1992). However, Illinois courts recognize that exceptions exist to this general rule under certain circumstances. Illinois courts have held that comparative negligence applies when " '[t]he plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it.' " Malanowski v. Jabamoni, 332 Ill. App. 3d 8, 15 (2002), quoting Restatement (Second) of Torts