Wilson v. Moon

2019 IL App (1st) 173065

138 N.E.3d 150

434 Ill.Dec. 991

Ernestine WILSON, as Special Administrator of the Estate of Brian Curry, Deceased, Plaintiff-Appellant,

v.Eric MOON, D.O., Defendant-Appellee.

No. 1-17-3065

Appellate Court of Illinois, First District, FOURTH DIVISION.

March 28, 2019

Dean J. Caras, of Caras Law Group, of Chicago, for appellant.

Robert P. Vogt and LaDonna L. Boeckman, of Vogt & O’Kane, of Chicago, for appellee.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.

¶ 1 After Ernestine Wilson's 23-year-old son, Brian Curry, died from a saddle pulmonary embolism (a blood clot that blocked the large pulmonary artery straddling his lungs), Wilson sued emergency room physician Eric Moon and St. Bernard Hospital (St. Bernard), alleging that the physician negligently failed to diagnose and treat her son's condition and that the hospital was liable because of its principal-agent relationship with the doctor. Dr. Moon denied negligence and the hospital sought summary judgment on grounds that the doctor was an independent contractor. Wilson reached a settlement with the hospital, but at the trial that ensued six weeks later, the doctor called the hospital's retained expert in pulmonary medicine, who testified that Curry's signs and symptoms did not suggest a pulmonary embolism and that what subsequently occurred was sudden and unsurvivable regardless of the doctor's efforts. The doctor's retained expert in emergency medicine testified that the doctor also complied with the standard of care for emergency medicine. The jury rejected the malpractice claim. The main issue on appeal is whether a pretrial witness disclosure that concluded, "Defendant adopts herein and reserves the right to call any Rule 213(f)(1), 213(f)(2) or 213(f)(3) witness disclosed by any party," adequately informed the plaintiff that an expert witness disclosed by a defendant who subsequently settled would be called by the remaining defendant. Wilson contends that the remaining defendant should have supplemented his witness list if he intended to call the settling defendant's witness and that his nondisclosure was prejudicial when she was unprepared for cross-examination. Wilson raises four other contentions about the scope of other witness testimony and the scope of the defendant's closing arguments.

¶ 2 I. BACKGROUND

¶ 3 We will summarize the evidence presented at the trial that was conducted in March 2017, and subsequently discuss the pretrial procedural history to the extent necessary to address Wilson's appeal. Wilson does not dispute that the manifest weight of trial evidence was in Dr. Moon's favor. Accordingly, we need not provide extensive detail of the witness testimony.

¶ 4 Wilson called Terrance L. Baker, M.D., as her retained expert in emergency medicine. Dr. Baker testified that he earned his medical degree in 1984, and became board certified in emergency medicine, family practice, geriatrics, and forensic medicine. Dr. Baker had 30 years' experience as a physician and was working in Good Samaritan Hospital's emergency department in 2012.

¶ 5 Dr. Baker testified that deep veins are the ones inside the arms, legs, and body that return blood from the feet and hands to the heart; a deep vein thrombosis (DVT) is a blood clot in one of those deep veins; and a pulmonary embolism (PE) occurs when one of those abnormal blood clots travels to the lungs. Dr. Baker reviewed the paramedics' report, the emergency room records, the autopsy report and death certificate, and the deposition testimony of persons involved in Curry's medical care and this lawsuit. In Dr. Baker's opinion, when Curry arrived at the emergency room, he had the signs and symptoms of a blood clot in his left leg and other clots in the periphery or outer margins of his lungs, including the sudden onset of shortness of breath, tightness in his chest and throat, a cough, and his eyes rolling back in his head. In Dr. Baker's opinion, Dr. Moon breached the standard of care for emergency medicine by not ordering a chest CT scan (a form of X-ray) to rule out peripheral PE and by discharging Curry prior to ruling out PE. The standard of care also required Dr. Moon to start Heparin¹ until he could see the results of the chest scan, i.e. , to start Heparin around 12:35 or 12:40 a.m., when Dr. Moon started ordering diagnostic tests. According to Dr. Baker, Heparin would have prevented the clot in Curry's left leg from growing and stabilized it so that it would not move to his lungs. Curry's electrocardiogram (EKG)—which showed a heart rate of 122 beats per minute, instead of 60 to 100, and a strain at the top and bottom of his heart—was also consistent with PE. However, Curry felt better while in the emergency room because he was provided with Tylenol, oxygen, fluids, and rest—which allowed his body to naturally dissolve the small clots in his lungs—and because his young heart and lungs had reserve that allowed his body to compensate when it was injured. According to Dr. Baker, when Curry was discharged at 3:05 a.m. with a diagnosis of bronchitis, his movements caused blood clots to break loose and travel to his heart, where they were pumped to his lungs and closed off circulation. Curry was able to return to emergency room before going into cardiac arrest. The standard of care required that he be given tissue plasminogen activator (tPA) almost immediately upon his return to the emergency room and collapse at 3:45 a.m.² It was also Dr. Baker's opinion, that Curry probably would have survived if he had been given Heparin and oxygen at 3:45 a.m.

¶ 6 On cross-examination, Dr. Baker said his only board certification was in family practice, not emergency medicine, and he was not eligible for board certification in emergency medicine because he had not completed a residency in that specialty. Dr. Baker had never written any articles or performed studies regarding PE or emergency medicine, and he had never been invited to present to the field of emergency room professionals. Wilson was paying Dr. Baker $ 500 per hour. Dr. Baker was splitting his workweek between an emergency room, a family practice office, a rehab facility, and a tattoo removal facility. Dr. Baker acknowledged that the paramedics' report did not document any shortness of breath, difficulty breathing, chest pain, leg pain, or throat pain and that the report indicated Curry was ambulatory when the paramedics arrived and had walked to the ambulance. The paramedics were told that Curry may have suffered a seizure, but he was "symptom free" when the paramedics were on the scene and all his vital signs remained normal. Similarly, in the emergency room, Curry did not complain of shortness of breath or chest pain, other than saying that he had those problems historically. While he was there, his blood pressure was "very good," his respiration rate remained "well within normal," and his oxygen saturation levels "[were] all very good and above normal." Dr. Baker acknowledged that an emergency room physician would be managing multiple patients at once and that standard practice was to perform a physical exam, take the patient's history, and then check back from time to time to see if test results were back and how the patient was responding to any treatment. The doctor would not note every time he or she returned to check. The standard of care required charting only significant events such as the return of lab results or a further physical exam. All of Curry's vital signs were continuously monitored by equipment, and the records indicated he did not breathe at a faster rate to compensate for the decrease in oxygen that would be caused by PE. Dr. Baker acknowledged that Curry's mother testified at her deposition that he had chronic shortness of breath and chest pain and that if he would sit and rest for a few minutes, he would be fine. Curry weighed 300 pounds, was not athletic, and would experience chest pain and become winded just by taking a walk around the block. Dr. Baker conceded that shortness of breath is a common complaint in the emergency room and that, even if it were combined with chest pain, it would not justify ordering a CT scan or administering Heparin. A CT scan or Heparin would be justified only if there was "a high suspicion" of PE. Dr. Baker also conceded that the standard of care for a patient who was stable required waiting for test results to confirm normal kidney function; otherwise, the kidneys would be damaged by the contrast dye used in a CT scan. The lab samples taken at 1:20 a.m. were not returned until 2:06 a.m. Furthermore, even if a chest CT had been ordered, it would not have shown the DVT in Curry's left leg. Dr. Baker acknowledged that he did not know how long it would take for a CT scan to be performed and then interpreted by a radiologist at St. Bernard. Dr. Baker acknowledged that he lacked enough information to estimate how long it would have taken for tPA to break down Curry's DVT or PE. Heparin only stabilizes a clot, it does not break it down. Dr. Baker agreed that tPA was not appropriate until 3:45 a.m., when Curry returned to the emergency room. Dr. Baker agreed that Curry's seizure upon his return at 3:45 a.m. could have been caused by a brain bleed and that tPA was contraindicated in that circumstance because significantly thinning his blood could cause his death. Curry's EKG showed some abnormalities, which Dr. Baker agreed could be due to "a variety of factors" unrelated to PE. Curry's symptoms of a sore throat, cough, fever, nasal congestion, elevated white blood cell count, and elevated neutrophils were all consistent with Dr. Moon's diagnosis of bronchitis.³

¶ 7 According to Dr. Baker, Curry developed three different issues: (1) a large DVT in his left calf, (2) peripheral PE in his outer lungs, and (3) the saddle PE which occurred when the large DVT in his left leg broke off seconds to minutes before his cardiac arrest. Curry's sedentary lifestyle,...