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Tsoukas v. Lapid, No. 1-98-0200

1st District, June 30, 2000

SIXTH DIVISION

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff, Kyriakos Tsoukas, appeals a jury verdict rendered in favor of Drs. Lapid, Stewart, Widger, Kornmesser and Shah and Lutheran General Hospital, and summary judgment rendered in favor of Dr. Lawrence Bergman on plaintiff's medical malpractice complaint. On appeal, plaintiff contends the circuit court erred in: (1) barring the testimony of plaintiff's rebuttal pathology opinion witness as a violation of Rule 213 (166 Ill.2d R. 213); (2) instructing the jury on comparative negligence instead of on a duty to mitigate damages; (3) admitting certain medical evidence and barring certain other medical evidence; (4) restricting plaintiff's closing arguments; (5) barring evidence that plaintiff's health maintenance organization (HMO) would not allow his operation to take place at Northwest Community Hospital; and (6) granting summary judgment for defendant Dr. Bergman. We reverse the jury verdict and remand for a new trial; we affirm the summary judgment for defendant Dr. Bergman.

Plaintiff filed suit for medical malpractice against defendants alleging that defendants failed to diagnose or treat an acute arterial occlusion when plaintiff was seen at Lutheran General Hospital's emergency room, which failure proximately caused the amputation of plaintiff's right foot one month later, that Dr. Widger abandoned his care of plaintiff, that defendants failed to conduct proper diagnostic tests and that Dr. Bergman refused to provide medical treatment or a referral to plaintiff.

At the jury trial, testimony revealed that on December 5, 1991, plaintiff, a 57-year-old man with diabetes, slipped and fell outside his apartment complex. Plaintiff went immediately to the emergency room at Holy Family Hospital complaining of ankle pain. There, an emergency room physician diagnosed plaintiff's complaint as ankle sprain, gave him a prescription and told him to follow up with Dr. Daniels.

The following day, plaintiff returned to Holy Family Hospital. At this visit, the treating physician told plaintiff to give the injury time to heal and instructed him to elevate the foot and apply hot packs.

On December 9, 1991, plaintiff went to see Dr. Shah at his office. Plaintiff testified that on this visit Dr. Shah referred him to an orthopedic surgeon. After attempting unsuccessfully to visit the orthopedic surgeon, plaintiff returned to Dr. Shah's office. Dr. Shah again instructed plaintiff to elevate his foot and apply hot packs and sent him home. According to plaintiff, at no time did Dr. Shah tell him he needed to be admitted to the hospital.

According to plaintiff, the condition of his foot was essentially unchanged between December 5, 1991, and December 31, 1991. Thus, on December 31, 1991, plaintiff went to see Dr. Katz, an orthopedic surgeon. Plaintiff testified Dr. Katz advised him to go to the emergency room. Plaintiff went to the emergency room at Lutheran General Hospital. There, plaintiff was examined by Dr. Stewart and Dr. Widger, who concluded he had a vascular insufficiency which required a vascular consult for proper diagnosis. Subsequently, Dr. Allman, a resident with the surgical service, not the vascular service, diagnosed plaintiff's condition as chronic vascular insufficiency. To confirm his diagnosis, Dr. Allman spoke with Dr. Kornmesser, the supervising on-call vascular surgeon, over the phone. Following this telephone consultation, Dr. Allman discharged plaintiff and instructed him to elevate his foot and apply hot and cold packs and to return in three days to see Dr. Kornmeser. According to plaintiff, neither Dr. Stewart, Dr. Widger, nor Dr. Allman told him he had a serious condition or that he had circulation problems.

According to plaintiff, he then tried to see Dr. Lawrence Bergman, a physician listed with his HMO. Plaintiff's daughter testified she called Dr. Bergman's office several times without reply.

Eventually, on January 9, 1992, plaintiff saw Dr. Spiro Stamelos, a doctor at Northwest Community Hospital. Dr. Stamelos examined plaintiff and diagnosed his condition as "acute vascular occlusion" and immediately admitted him to the hospital.

On January 10, 1992, Dr. Stamelos and Dr. Constantine Tatooles performed an arteriogram. The arteriogram revealed 100 % occlusion of plaintiff's right leg. On January 11, 1992, in an attempt to salvage plaintiff's leg, Dr. Tatooles performed an embelectomy (revascularization) to clean the obstruction from the artery and to increase the flow of blood to the leg. Unfortunately, the damage to Tsoukas' leg was irreparable and, on January 28, 1992, Dr. Stamelos amputated plaintiff's foot. Plaintiff filed a complaint alleging defendants' improper diagnosis and treatment of an acute vascular occlusion, or blood clot, resulted in the amputation of his right foot.

Prior to trial, the circuit court granted summary judgment for Dr. Bergman. Following a four-week trial, the jury rendered a verdict in favor of the remaining defendants. The circuit court entered judgment on the jury's verdict and plaintiff appealed.

On appeal, we first consider the dispositive issue: jury instructions. A party has a right to have the jury instructed on his or her theory of the case if the facts in evidence or a reasonable inference from those facts supports the theory. Aimonette v. Hartmann, 214 Ill. App. 3d 314, 321, 574 N.E.2d 776, 780 (1991).

Plaintiff contends the circuit court erred in deciding that either a comparative negligence or a mitigation of damages instruction had to be given to the jury, and that it further erred when it chose to give the comparative negligence instruction rather than the mitigation instruction. Comparative negligence applies where "[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." Restatement (Second) of Torts