Corlett v. Caserta

Page 257

562 N.E.2d 257

204 Ill.App.3d 403, 149 Ill.Dec. 793,

3 A.L.R.5th 1091

Mary CORLETT, Special Administrator of the Estate of Arthur W. Corlett, Jr., Deceased, Plaintiff-Appellant, v. John A. CASERTA, M.D., Defendant-Appellee.

No. 1-89-0566.

Appellate Court of Illinois First District, Fourth Division.

Sept. 28, 1990.

Rehearing Denied Oct. 30, 1990.

Stuart W. Opdycke, Rosenberg, Opdycke, Gildea, Hellner & Kelly (Steven J. Rosenberg, of counsel), Chicago, for plaintiff-appellant.

French Rogers Kezelis & Kominiarek, P.C. (Dorothy F. French, Russell P. Veldenz and Michael R. Webber, of counsel), Chicago, for defendant-appellee.

Presiding Justice McMORROW delivered the opinion of the court:

Plaintiff Mary Corlett (plaintiff), as special administrator of the estate of her late husband, Arthur W. Corlett, Jr. (Corlett) (hereinafter collectively referred to as the Corletts) filed a wrongful death suit against defendant Dr. John A. Caserta (Caserta). Plaintiff alleged that Caserta's negligence in failing to make an earlier diagnosis of Corlett's development of gastric bleeding following colon surgery proximately caused Corlett's death. Caserta filed a motion for summary judgment, arguing that Corlett's refusal of a blood transfusion, suggested by Caserta upon the discovery of Corlett's gastric bleeding, barred plaintiff's wrongful death suit as a matter of law. Caserta also argued that a release signed by the Corletts, which relieved Caserta of liability for respecting their refusal to have a blood transfusion administered to Corlett, justified the entry of summary judgment in his favor.

We conclude that the release signed by the Corletts did not relieve Caserta of liability for Corlett's wrongful death resulting from Caserta's alleged negligence. We also determine that Corlett's refusal of the blood transfusion is an element which may be considered by the factfinder in deciding issues of proximate cause and comparative fault, and that these questions cannot be resolved as a matter of law in the instant appeal. Accordingly, we reverse the trial court's judgment and remand the matter for further proceedings.

The following facts are presented by the pleadings and the discovery materials filed by the parties with respect to Caserta's summary judgment motion. On July 5, 1978, Caserta performed surgery to remove polyps from Corlett's colon. Corlett informed Caserta prior to the operation that no blood should be administered to him during the surgery, because Corlett was one of Jehovah's Witnesses, whose religious convictions forbid the acceptance of a blood transfusion. On the consent to surgery form provided to him prior to the operation, Corlett again indicated in his own handwriting that he did not consent to the administration of blood during the surgery. Plaintiff, also one of Jehovah's Witnesses, concurred in Corlett's instruction that no blood be administered during the surgery. There were no complications during the course of the colon operation.

Three days after the surgery, on July 8, 1978, Corlett developed a fever because of an infection resulting from the surgery. Caserta prescribed aspirin to reduce Corlett's elevated temperature and directed that the aspirin be administered every four hours whenever Corlett's temperature exceeded 100 degrees fahrenheit. Aspirin was administered by hospital personnel in accordance with Caserta's instructions. On July 16 and July 17, approximately a week after the administration of aspirin had begun, Corlett vomited a dark black liquid and had loose stools. Two days later, on July 19, Corlett's emesis was bright red. Because of this last development, a hospital staff physician directed that the administration of aspirin be discontinued and that Corlett be given a different drug used to stop gastric bleeding.

According to Caserta's deposition testimony, Caserta advised the Corletts on July 19 that a blood transfusion was imperative and was the only remaining treatment available to alleviate Corlett's internal bleeding. He also advised the Corletts that the failure to administer a blood transfusion would place Corlett's life in grave peril. Both Corlett and plaintiff refused the transfusion because of their religious convictions.

It appears from the record that the Corletts then signed a release document (hereinafter referred to as the release) containing the following language:

"I * * * am a member of the religious [s]ect [sic] known as Jehovah's Witness and follow their tenets and beliefs, I refuse to allow anyone to give whole blood transfusion or blood derivatives. The risks attendant to my refusal have been fully explained to me, and I fully understand that I will in all probability need whole blood or blood derivatives and if the same is not done, my chances for regaining normal health are seriously reduced, and that, in all probability, my refusal for such treatment or procedure will seriously imperil my life.

I hereby release the Hospital, its nurses and employees, together with all physicians in any way connected with me as a patient, from liability for respecting and following my expressed wishes and direction."

Corlett died on July 21, 1978 of complications resulting from gastric bleeding caused by ulceration of his stomach lining. He was 55 years old.

In their depositions given during discovery, the medical experts retained by the parties agreed that Caserta's original prescription of aspirin was an acceptable treatment for Corlett's fever and infection, and that the fever and infection were normal complications of the colon surgery. However, it was the opinion of plaintiff's expert that Caserta should have ordered a test on July 16 or July 17, when Corlett vomitted dark liquid and had loose stools, which would have revealed that Corlett was suffering from gastric bleeding. Plaintiff's expert held the opinion that Caserta, upon making a diagnosis of gastric bleeding on July 16 or July 17, should have discontinued the administration of aspirin on that date, since the aspirin irritated the stomach lining and exacerbated the gastric bleeding. Thus, it was the opinion of the plaintiff's expert that the treatment given Corlett on July 19, i.e., the discontinuance of aspirin and the administration of a drug that inhibits gastric bleeding, should have begun two or three days earlier, on July 16 or July 17. Plaintiff's expert stated that, in his opinion, if the proper procedure had been instituted on July 16 or July 17:

"[I]n all medical probability, given the response of the patient from the 19th on to appropriate treatment with [a drug to inhibit gastric bleeding], stopping the aspirin, and antacids, that the patient probably would have survived; that the bleeding would have stopped, and that he would not have bled to a point where he went into irreversible shock and was not able to be resuscitated."

Plaintiff's expert also stated that if Corlett had been given a blood transfusion on either July 16, July 17, July 18, or July 19, "in all medical probability" Corlett would have survived, "[a]ssuming that the other measures taken [on July 19] were instituted as well, [i.e.,] * * * the institution of [a drug to inhibit gastric bleeding], et cetera." Plaintiff's expert stated that "[e]ven as of July 19, the giving of blood to Mr. Corlett would have been lifesaving * * *."

Defendant's medical expert stated at his deposition that Caserta's failure to diagnose Corlett's gastric bleeding before July 19 did not, in his opinion, fall below a minimum standard of acceptable medical care. It was the opinion of defendant's expert that Corlett's symptoms on July 16 and July 17 did not indicate the need for a test to determine the possible presence of gastric bleeding. Defendant's expert stated that he disagreed with the opinion of plaintiff's expert, quoted in the previous paragraph, since "[e]rosive gastritis is a condition that in and of itself is highly fatal [and is] usually associated with about a 25 percent mortality rate when all treatment is allowed, including blood transfusion." Defendant's expert acknowledged that "[t]he only chance [Corlett] had of surviving once the significant hemorrhage occurred was to have received a transfusion, plus whatever other therapy may have been indicated." He further noted that "the only other therapy that may have been indicated--at least the surgical therapy--would have been prevented by his refusal to accept a transfusion."

The trial court granted summary judgment in favor of Caserta, reasoning that Corlett's refusal of the blood transfusion suggested by Caserta on July 19 barred plaintiff's wrongful death suit. Plaintiff appeals.

I

We first consider Caserta's argument that the release executed by the Corletts on July 19, that relieved Caserta from liability for their refusal to accept a blood transfusion, serves as a complete bar to plaintiff's wrongful death suit.

To support his position, Caserta relies upon Harris v. Walker (1988), 119 Ill.2d 542, 116 Ill.Dec. 702, 519 N.E.2d 917. In Harris, the plaintiff filed suit to recover personal injuries sustained while plaintiff was riding a horse owned by defendant. The exculpatory clause at issue in Harris stated in pertinent part that plaintiff released defendant "of any liabilities [plaintiff] may incur while on the premises or for any injury which may result from horseback riding." (119 Ill.2d at 549, 116 Ill.Dec. 702, 519 N.E.2d 917.) In view of the broad language utilized in the exculpatory clause in Harris, and the degree to which the plaintiff was an experienced horseback rider, the Illinois Supreme Court concluded that the release barred plaintiff's suit, even though the exculpatory clause did not anticipate the precise harm which the plaintiff had suffered.

The release at issue in the instant cause is distinctly different from that in Harris. Contrary to Caserta's argument on appeal, the release executed by the Corletts does not contain broad...