RomÁn v. Children's Heart Ctr.

2010 IL App (1st) 091217

954 N.E.2d 217

352 Ill.Dec. 357

Luis SAN ROMÁN and Miguel San Román, Plaintiffs–Appellants,

v.CHILDREN'S HEART CENTER, LTD., d/b/a Rush Children's Heart Center, and Carlos E. Ruiz, M.D., Defendants–Appellees.

No. 1–09–1217.

Appellate Court of Illinois, First District, Sixth Division.

Opinion filed Dec. 23, 2010.Modified upon denial of rehearing June 30, 2011.

Keith A. Hebeisen, Brian S. Shallcross, Clifford Law Offices, P.C., Chicago (Robert P. Sheridan, of counsel), for Plaintiffs–Appellants.James K. Horstman, Michael D. Huber, Cray Huber Horstman Heil & VanAusdal LLC, Chicago, for Defendants–Appellees.Justice McBRIDE delivered the judgment of the court, with opinion.

[352 Ill.Dec. 358] ¶ 1 In this medical malpractice action, the plaintiff minor patient and his father appeal from an adverse judgment, arguing a subsequent treating physician should not have been allowed to testify for the defendant physician and that jury instructions improperly referred to the standard of care of a well-qualified “pediatric interventional cardiologist,” which is not a board-certified medical speciality. They also contend the judgment is contrary to the manifest weight of the evidence or, in the alternative, the cumulative effect of the two errors was so prejudicial that the trial was not fair.

¶ 2 The following facts are disclosed by the record on appeal. Plaintiff Luis San Román was born in 1986 in Madrid, Spain, with cyanosis—he was a “blue baby”—suffering from a heart condition which deprived his body of oxygen and is known as transposition of the aorta or transposition of the great arteries. In a normal heart, oxygen-poor blood returns from the body to the right atrium, travels to the right ventricle, is pumped through the pulmonary artery into the lungs, where it picks up oxygen, and oxygen-rich blood travels from the lungs to the left atrium, into the left ventricle, and is pumped through the aorta out to the body. In Luis' heart, however, two, nearly separate circulations formed in which oxygen-poor blood flowed from the right atrium directly to the aorta where it returned to the body, and oxygen-rich blood flowed from the left atrium right back to the lungs. He also, however, suffered from stenosis (narrowing) of the pulmonary artery, and introducing a Blalock–Taussig shunt within weeks of his birth facilitated a weak but normal exchange of blood through his heart. The blood flow was made more efficient by Rastelli surgery when Luis was five, in which a donor artery was used to connect his right ventricle to his pulmonary artery and an artificial baffle and homograft (donor tissue) were inserted to connect his left ventricle to his aorta. It was anticipated that Luis would outgrow the baffle and would need further surgery. This was Luis' situation by the time he was 13, when the San Román family was residing in Barcelona, Spain.

¶ 3 On June 22, 1999, in an attempt to delay open heart surgery, defendant Chicago surgeon Carlos E. Ruiz, M.D., who was then employed by defendant Children's Heart Center, Ltd., at Rush–Presbyterian–St. Luke's Medical Center, used a heart catheterization process to insert a stent in Luis' left ventricle. The procedure was not successful, Luis' mitral valve was torn during the attempt, he went into heart failure, and he suffered a series of strokes (which are a known risk in any cardiac procedure). He underwent open heart surgery and spent about a month in the hospital. Examinations by a cardiologist and a neurologist five weeks later indicated Luis was emotionally traumatized by his experience and that long-term physical concerns included vision abnormalities and potential cognitive deficits.

¶ 4 In 2001, Luis and his father Miguel sued Ruiz and Ruiz's employer, contending the doctor recommended and performed the catheterization without informing the San Román family it was experimental and very risky and that open heart surgery would have been the better choice. In their second amended complaint, filed after Luis turned 18, he sought damages for medical negligence and his father sought damages pursuant to the statute commonly known as the family expense act. 750 ILCS 65/15 (West 2000).

¶ 5 On August 28, 2001, Ruiz's defense attorney retained physician James E. Lock, M.D. of Children's Hospital Boston and forwarded unspecified documents for his review. In June 2003, a Chicago surgeon who began treating Luis after the failed catheterization referred Luis to Lock as the more experienced practitioner. Without informing the San Román family that he was assisting the defense attorney, Lock performed a catheterization procedure on the teenage boy in July 2003. The San Román family updated their attorney about Luis' care, the attorney relayed this information to the defense attorney, and the defense attorney contacted Lock on August 21, 2003, to confirm that he had treated or was treating Luis. On August 25, 2003, Lock verbally confirmed to defense counsel that he performed the procedure on Luis in July 2003. After this confirmation, Lock continued to assist the defense but neither he nor defense counsel advised the San Román family or their attorney of the relationship.

¶ 6 Instead, on September 12, 2003, Ruiz filed a motion for protective order seeking the defense attorney's “right to continue to use Dr. James Lock as his retained consultant as has been the case for the two years before ‘treating physician’ status occurred.” ¹ Ruiz indicated Lock's established role was “to consult on and review this matter and provide his expert opinion regarding the treatment given to [Luis].” Ruiz argued that “if a plaintiff's later occurring physician-patient relationship arrangement could be held to preclude defendant's previously established consulting relationship with a retained expert, plaintiffs would always establish such a relationship to defeat defendant's ability to communicate with its retained experts.” Accordingly, the defense attorney wanted “to communicate with Dr. James Lock outside the confines of formal discovery procedures with the exception of matters related to his care and treatment of [Luis] which [the attorney assured the judge] would be conducted only pursuant to * * * Supreme Court Rule 201.” Ruiz concluded with a request for “a protective order allowing the defendant's counsel to communicate with Dr. James Lock pursuant to the authorized methods of discovery outlined by Supreme Court Rule 201.” Within a week, on September 19, 2003, the defense attorney drafted and presented an agreed order for the judge's entry without a hearing. The meaning of this order is currently in dispute:

“ AGREED ORDER

This matter coming to be heard on defendant CARLOS RUIZ, M.D.'s Motion for Protective Order, due notice having been given and the court being advised in the premises, it is hereby agreed by the parties and ordered as follows:

1. [The motion] * * * is granted. Defendant DR. RUIZ (and his attorneys and representatives) may continue to retain, consult with and communicate with his retained consulting pediatric cardiology expert Dr. James Lock as to any and all matters relating to the care and treatment of the plaintiff LUIS SAN ROMÁN rendered by DR. RUIZ and others at Rush–Presbyterian–St. Luke's Medical Center and any and all medical conditions, alleged injuries and damages flowing therefrom before the care and treatment rendered by Dr. James Lock or others at Boston Children's Hospital to the plaintiff LUIS SAN ROMÁN.

2. Nothing in this order authorizes defense counsel or representatives of defendant CARLOS RUIZ, M.D. to obtain medical records or information through means other than formal discovery * * *.”

¶ 7 Although lawyers on both sides of the case were now aware of Lock's dual relationship, the San Román family was not when Lock rendered “some brief follow-up [to Luis] in 2004.”

¶ 8 Luis celebrated his eighteenth birthday on June 1, 2004.

¶ 9 The San Románs' attorney deposed Lock in late July 2005 and learned that he had never disclosed to the family or their referring physicians that he was helping Ruiz's attorney. Up until that point, the San Románs' attorney believed his clients had been advised of Lock's dual role.

¶ 10 On November 17, 2005, the San Románs filed a motion to bar Ruiz and his attorneys from any further ex parte communication with Lock and to bar Lock from testifying for the defense, on grounds that the physician-patient relationship created a duty of confidentiality, and to compel production of all communications which had occurred, so Luis could determine if his confidences had been breached. The Children's Heart Center and Ruiz filed separate responses to the motion to bar and compel, in which they argued defense counsel had not knowingly communicated with Luis' treating physician in violation of Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952 (1986), and that the San Románs waived a Petrillo objection by entering into the agreed order. In a written order entered on January 18, 2006, the trial judge denied the motion, reasoning that parties act through their lawyers, and in this case, the lawyers agreed to the order entered on September 19, 2003, which “granted defendant Dr. Ruiz the right to continue to utilize Dr. Lock as his retained expert.” The judge rejected for lack of evidence the suggestion that Lock deliberately and dishonestly withheld from the San Románs that he had become an expert for the defendants and that the San Románs would have acted differently if told. The judge also remarked upon the gap between the agreement and the motion to bar and compel, and found the San Románs had delayed in bringing the motion and waived their objection. A motion for reconsideration provided the judge with affidavits from Luis, his father Miguel, and his grandfather Pedro Gomendio, who was the most conversant in English and had been involved in Luis' medical care, including...