Guerra v. Advanced Pain Ctrs. S.C.

2018 IL App (1st) 171857

122 N.E.3d 345

428 Ill.Dec. 336

John GUERRA, as Special Administrator of the Estate of Jill Guerra, Deceased, Plaintiff-Appellant,

v.ADVANCED PAIN CENTERS S.C., and Eugene G. Lipov, M.D., Defendants-Appellees.

No. 1-17-1857

Appellate Court of Illinois, First District, Second Division.

Opinion filed November 20, 2018

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 After Jill Guerra died from an acetaminophen overdose, her husband, John Guerra, as the executor of her estate, brought an action for medical malpractice against Advanced Pain Centers and its medical director and Jill's pain management doctor, Dr. Eugene Lipov. John claims that his wife became addicted to opioids during the 10 months Lipov treated her, and Lipov's negligent failure to manage her pain medication proximately caused her death.

¶ 2 After trial, a jury returned a general verdict in John's favor attributing 50% of the fault to Jill and awarding no damages. In response to a special interrogatory, the jury returned a special verdict finding that someone other than Dr. Lipov to be the sole proximate cause of Jill's death.

¶ 3 John's first posttrial motion resulted in the trial court setting aside the special verdict on the basis of error in giving the special interrogatory. According to the trial court, the instruction and interrogatory improperly implicated John as the sole proximate cause of Jill's death. Lipov then moved for judgment notwithstanding the verdict (JNOV), arguing that John's expert witness, Dr. Steven Richeimer, failed to establish proximate cause. While not an addiction specialist, Richeimer opined that Lipov should have sent Jill to see one. The trial court granted the motion stating, "plaintiff is missing the necessary expert testimony to establish proximate causation to link the alleged deviations from the standard of care to Jill's death." After the court granted Lipov's JNOV, John filed a second posttrial motion challenging the court's ruling on proximate cause and again asking for a new trial. This motion, too, was denied.

¶ 4 John requests a new trial arguing (i) the trial court committed prejudicial errors and (ii) there were irreconcilable verdicts. He also argues the trial court erred in granting Lipov's JNOV and claims his expert witness established proximate cause. We affirm the JNOV because John failed to establish proximate cause. Thus, we do not need to address John's other contentions.

¶ 5 BACKGROUND

¶ 6 Jill's Medical History

¶ 7 Jill Guerra was in a car accident in 1982. In 2005, she began feeling pain related to a neck injury caused by the accident. Jill underwent neck surgery in 2007, and later that year was prescribed opioids by a pain management doctor. She had a second surgery in 2008 and in 2009 started seeing a new pain management doctor. Later that year, Jill underwent a third surgery. A month after the surgery, Jill spent a few days in a psychiatric hospital. There, doctors diagnosed Jill with major depressive disorder and anxiety disorder. Jill began seeing a different pain management doctor in October 2009. As requested by her new doctor, Jill underwent a psychological evaluation to assess her risk for addiction. The psychologist who performed the evaluation found Jill was not at risk of abusing her medication.

¶ 8 Later, Jill's pain management doctor asked her to go for another psychological evaluation. Jill refused. In July 2010, that same doctor discharged Jill from her care after discovering Jill received additional pain medication from her primary care physician. A month later, Jill's primary care physician suggested she get a psychiatric consultation, which she declined to undergo.

¶ 9 Jill found another pain management doctor who saw her for a month before referring her to Dr. Lipov in September 2010. By the time Jill came under Lipov's care, she had seen four pain management doctors, underwent three surgeries, and received four referrals to a mental health professional (although she availed herself to a mental health professional only once).

¶ 10 Lipov monitored and modified her pain medication, based on her complaints of pain. During the 10 months he treated her, Lipov prescribed Norco, Dilaudid, Vicoprofin, and Opana (opioids), and Klonopin and Xanax (anti-anxiety medications). Twice, during her treatment with Lipov, Jill called and complained that the pharmacy shorted her opioid prescriptions. Both times Jill received a new prescription to make up for the lost pills. Jill also increased her medication on her own, which came to light when she called Lipov's office to refill prescriptions early.

¶ 11 Lipov also tried to treat the cause of Jill's pain by performing "facet injections" into her spine. Lipov first performed an injection on September 30, 2010, which according to Jill provided some pain relief, so he performed additional injections on October 21, 2010, and November 21, 2010, which failed to provide relief. He also twice performed radiofrequency procedures, which involves applying heat to relieve nerve pain, but these too failed to provide sufficient pain relief. Eventually, Lipov referred Jill to an orthopedic spine surgeon, who performed spine surgery on Jill in May 2011.

¶ 12 On July 14, 2011, Jill told Lipov that she spent two days in the hospital and was unsure what had happened. At that appointment she informed Lipov that she wanted to start coming off medications. Lipov decreased the strength of Jill's prescription. But, at her next appointment on July 21, he increased the strength of Jill's opioid prescription. He testified that the new heightened prescription was meant to counter an increase in Jill's pain, and that it is common for patients to experience increased pain one month after surgery.

¶ 13 Three days later, Jill suffered an acetaminophen overdose. The exact timing of that day's events is unclear. Jill's teenage daughters, Katie and Jackie, first realized Jill was unwell. Katie testified that when she came home that day, Jill was on the couch. Katie said "hi," and Jill did not respond. Katie said it wasn't unusual for Jill to be asleep on the couch. Jackie testified that Jill was often "out of it." After Katie came home, Jackie and Katie both spoke to Jill and realized she was unresponsive. At some point, Katie came downstairs and found Jill on the floor. Katie then called John at work. The medical records state Katie called at 11 a.m., but Katie testified that she did not remember when she called John and disagrees with the time listed in the medical record. Jackie also testified that she called John after seeing Jill unresponsive on the couch. In her deposition she said she called John at 2:30 p.m. but, during trial, she couldn't remember the exact time.

¶ 14 After finishing his eight-hour work shift, at about 3 or 3:30 p.m., John went home where he found Jill on the couch. (The medical records state someone had put Jill back on the couch.) John testified that when he got home he and the daughters placed Jill on the floor. The medical records state John called an ambulance at 7:58 p.m., which took Jill to the Northwest Community Hospital. She never regained consciousness and died two days later.

¶ 15 The medical examiner concluded that Jill died of an acetaminophen overdose and ruled her death a suicide. Jill's history of mental illness and the high levels of acetaminophen in her system caused the medical examiner to believe the overdose was self-inflicted. Tylenol, as well as Norco, contain acetaminophen. An open question is whether Jill had opioids in her system at the time of her death because the drug toxicology screen (which would have indicated the presence of opioids) is not included in Jill's medical records.

¶ 16 Procedural History

¶ 17 John Guerra, as the special administrator of Jill's estate, filed a wrongful death action, based on medical malpractice, against Advanced Pain Centers and Dr. Lipov. Lipov filed an affirmative defense, claiming Jill was contributorily negligent. Later, Lipov moved to add a second affirmative defense claiming John was contributorily negligent, but the trial court denied the motion.

¶ 18 Before trial, both sides filed multiple motions in limine . John requested that the court bar Lipov from arguing that John was contributorily negligent in light of the denial of Lipov's affirmative defense. The court denied John's motion. The case went to trial in May 2016. John relied on the testimony of a single expert witness, Dr. Steven Richeimer, who specializes in pain management. Richeimer testified that he was not offering opinions as a psychiatrist. He testified that there were numerous "red flags" that Jill was addicted to opioids including running out of medication early, reporting a high level of pain scores, requesting early medication refills, taking more medication than is prescribed, requesting specific medications, seeking medication from other doctors, requesting stronger doses of medication, claiming pharmacy errors in filling a prescription, and unexplained emergency room visits. Richeimer testified that Lipov failed to meet the standard of care for a pain management doctor by not recognizing these signs of opioid addiction, and a prudent pain management doctor would have discussed addiction with Jill and referred her to an addictionologist. "He should seek to treat the addiction," Richeimer stated. "Probably most pain doctors are not addictionologists. So he probably has to refer that patient to people who will help with that. And he should work with the patient to start getting them off their opioids," either by sending them to a detox program or weaning them off of the prescription medication.

¶ 19 On cross-examination, Richeimer agreed that some aspects of Lipov's treatment helped Jill, and that the injections, radio frequency treatments, and referral to an orthopedic surgeon were within the standard of care. He also agreed that Jill was likely addicted to opioids at least as early as 20...