Bosco v. Janowitz

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Bosco v. Janowitz

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-0617 Rel

Case Date: 02/10/2009

Preview:SECOND DIVISION FEBRUARY 10, 2009

1-07-0617 PAMELA BOSCO, Individually and as Executor of the Estate of Peter Bosco, Deceased, Plaintiff-Appellant, v. ROBERT JANOWITZ; WESTMONT FAMILY PRACTICE, S.C.; GREGORIO ORBETA, JR.; and GREGORIO R. ORBETA, JR., M.D., S.C., Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

No. 02 L 011372

Honorable Thomas R. Chiola, Judge Presiding.

JUSTICE CUNNINGHAM delivered the opinion of the court: Following a jury verdict in favor of the defendants in a medical malpractice case, the plaintiff filed a posttrial motion for judgment notwithstanding the verdict and a request for a new trial on all issues. On February 27, 2008, the circuit court denied the plaintiff's motion, holding that the jury's decision was fully supported by the evidence. On appeal, the plaintiff argues that: (1) a judgment notwithstanding the verdict and a new trial on all issues was warranted; (2) the trial court abused its discretion in admitting irrelevant and highly prejudicial evidence against the plaintiff; and (3) the trial court abused its discretion in admitting evidence of other physicians' negligence, and in instructing the jury with the long forms of the Illinois Pattern Jury Instructions, Civil, Nos. 12.04 and 12.05 (2000). For the following reasons, we affirm. BACKGROUND Peter Bosco (Bosco) battled a series of long, complicated gastrointestinal illnesses before

1-07-0617 succumbing to colon cancer on May 17, 2002, at the age of 37. In March 1993, Bosco began experiencing symptoms of cramps, diarrhea and abdominal pain. He visited his family physician, Dr. Robert Janowitz (Dr. Janowitz), at Westmont Family Practice, S.C. Dr. Janowitz conducted a stool sample test, which tested negative for infection, and prescribed medicine to Bosco to relieve the symptoms. Within two days of this visit, Bosco reported that his symptoms had resolved. However, on May 13, 1993, he returned to Dr. Janowitz, complaining of the same symptoms, along with a fever and a feeling of weakness. Dr. Janowitz sent Bosco to the emergency department of a hospital (ER) for intravenous (IV) fluids to prevent further dehydration. Blood tests revealed a low hemoglobin level of 9.4. Bosco was informed of these test results. On June 14, 1993, Bosco returned to Dr. Janowitz for more blood tests. Bosco reported no pain or symptoms. However, the results of his blood tests showed an increased hemoglobin level of 11.1, but Dr. Janowitz still considered Bosco to be anemic. Three days later, Bosco reported "vague epigastric fullness" to Dr. Janowitz, who then ordered an upper gastro-intestinal (G.I.) series test and an ultrasound. Dr. Janowitz advised both Bosco and his wife, Pam Bosco, of the normal test results on June 23, 1993, and instructed Bosco to return to Dr. Janowitz's office for a follow-up on July 12, 1993. On June 28, 1993, Bosco reported to Dr. Janowitz that his G.I. symptoms had returned and had been recurring for the past three days. In response, Dr. Janowitz referred him to see Dr. Philip Sweeney (Dr. Sweeney), a gastroenterologist. On June 29, 1993, Bosco made his first visit to Dr. Sweeney, where he presented with symptoms of diarrhea, abdominal cramps, weight loss and anemia. Dr. Sweeney performed a full 2

1-07-0617 physical examination, which revealed blood in the stool. A diagnostic colonoscopy was scheduled for the following day. Dr. Sweeney performed the colonoscopy on Bosco the next day, during which a single polyp was identified and removed from Bosco's ascending colon. The removed polyp was diagnosed as a tubular adenoma, a specific type of benign polyp. The results of the colonoscopy enabled Dr. Sweeney to diagnose Bosco with ulcerative colitis, a chronic condition that required lifelong management. Subsequently, Dr. Sweeney prescribed steroid medications to reduce inflammation and iron pills for anemia. Bosco was instructed to return to Dr. Sweeney within two to three weeks. After Dr. Sweeney's diagnosis, Bosco sought a second opinion at the Mayo Clinic in Minnesota. The Mayo Clinic confirmed that Bosco had ulcerative colitis, but did not advise Bosco that a cancer surveillance plan was necessary at that time. In August 1993, Bosco was hospitalized for two days as a result of an ulcerative colitis flareup, experiencing symptoms of recurrent vomiting and upper abdominal pain. Both Dr. Janowitz and Dr. Sweeney examined Bosco at the hospital. Dr. Janowitz conducted a basic physical examination on Bosco, while Dr. Sweeney ordered an "upper GI exam with a small bowel follow through." Because Bosco believed that some of his pain stemmed from an infection secondary to his work environment, he did not consent to the procedure that Dr. Sweeney recommended. A month after his discharge from the hospital, Bosco called Dr. Janowitz to report that he was feeling better and that he would follow up with Dr. Sweeney. Bosco also contacted Dr. Sweeney by the telephone in October 1993 to say that he was feeling well, at which time Dr. Sweeney instructed him to follow up in the office in six to eight weeks. However, on November 5, 1993, 3

1-07-0617 Bosco experienced another flare-up, and as a result, Dr. Sweeney increased his medication and instructed Bosco to return in three weeks for reevaluation. Bosco never returned to Dr. Sweeney. In 1995, due to changes in his health insurance, Bosco switched his primary care physician from Dr. Janowitz to Dr. Edward McMenamin (Dr. McMenamin). On October 3, 1995, Bosco was again hospitalized with complaints of diarrhea and skin rash. Dr. McMenamin performed a history and physical examination and blood tests, which revealed that Bosco's hemoglobin level was at a severely low level of 5.5. Dr. McMenamin requested a consultation with Dr. Gregorio Orbeta (Dr. Orbeta), a gastroenterologist. During the October 3, 1995 hospitalization, Dr. Orbeta examined Bosco, performed a flexible sigmoidoscopy examination, and prescribed oral medications to alleviate his symptoms. Dr. Orbeta's plan was to also perform a diagnostic colonoscopy examination, but to do so at a later date when Bosco was no longer bleeding, since the colon was more susceptible to perforation during periods of flare-ups. Dr. Orbeta advised Bosco of the symptoms, medications, possible

complications and the necessity for Bosco to be examined once a year. On October 13, 1995, Bosco made a follow-up visit to Dr. Orbeta's office. Subsequently, on October 20, 1995, Dr. Orbeta performed the scheduled diagnostic colonoscopy examination. During the procedure, Dr. Orbeta took photographs and three biopsies of the transverse colon, but did not find any polyps. Dr. Orbeta noted that the "entire colonic mucosa showed edema, hyperemia, multiple ulcerations, and multiple pseudopolyp formations." His findings were consistent with ulcerative colitis, with no evidence of malignancy. Dr. Orbeta reported these findings to Bosco by telephone on October 24, 1995, at which time Bosco reported that he was feeling better. 4

1-07-0617 Sometime in 1996, Bosco changed his primary care physician from Dr. McMenamin back to Dr. Janowitz, but kept Dr. Orbeta as his gastrointestinal specialist. On November 14, 1996, Bosco treated with Dr. Orbeta and reported that he was doing well and not experiencing any pain. The ulcerative colitis was under control with medication. On June 7, 1997, Bosco visited Dr. Janowitz's office for urinary problems, which were resolved shortly after the visit. However, on June 30, 1997, Bosco called Dr. Orbeta and complained of blood in his semen, although his ulcerative colitis was otherwise asymptomatic. Dr. Orbeta referred Bosco to a urologist. Bosco did not treat with Dr. Orbeta again until May 8, 1998, at which time he reported that the ulcerative colitis was still asymptomatic and under control with medication. Dr. Orbeta noted that Bosco had a "normal exam" and "no bleeding." On September 10, 1998, Bosco made a final visit to Dr. Janowitz's office for the purpose of having a "pre-adoption" physical because he and his wife wanted to adopt a child. At this visit, Bosco informed Dr. Janowitz that his condition was under control and that he was asymptomatic. On May 17, 1999, Bosco visited Dr. Orbeta's office for the last time. He reported that he had no bleeding, occasional cramps, and was otherwise asymptomatic. Dr. Orbeta did a complete blood analysis as one had not been done since 1995. A few days later, Dr. Orbeta telephoned Bosco about the results of the blood test and informed him of a low hemoglobin. Dr. Orbeta instructed Bosco to take iron pills and to return to the office for a follow-up blood evaluation in one month. Bosco went to Dr. Orbeta's office on July 8, 1999, to pick up an order for a repeat blood test, but he never returned to Dr. Orbeta for the follow-up visit, despite instructions to do so. 5

1-07-0617 Bosco sought no treatment from any physician from May 17, 1999, until October 1999, when he visited another gastroenterologist, Dr. Joseph Brasco (Dr. Brasco), for a second opinion regarding his condition. On October 19, 1999, Bosco was admitted to the ER at Northwest Community Hospital with complaints of abdominal pain. Dr. Brasco saw Bosco at the hospital, where several X-rays were taken. Shortly thereafter, Dr. Brasco discharged Bosco from the hospital. On October 25, 1999, Bosco was readmitted to the ER for severe abdominal pain. Dr. Brasco then performed a colonoscopy and diagnosed an obstruction in the colon. Unknown to Dr. Brasco at the time, he had perforated Bosco's colon during the procedure. Bosco was subsequently rushed into emergency surgery. Dr. Robert Aki (Dr. Aki) performed emergency surgery on Bosco after the colon perforation and removed three-quarters of the colon after discovering the presence of stage 2 cancer. Dr. Aki informed Bosco's wife that he had removed all of the cancer during the surgery. Following the surgery, Bosco was referred to Dr. Al Benson (Dr. Benson), an oncologist at Northwestern Memorial Hospital. On January 17, 2000, Bosco had his first visit with Dr. Benson, who advised him that stage 2 cancer was a "good" stage and that the cancer could be treated and cured. Subsequently, Bosco began chemotherapy treatments. On September 7, 2000, Dr. Aki again performed surgery on Bosco to remove the remaining one-quarter of his colon. It was during this surgery that Dr. Aki discovered that Bosco's colon cancer had spread to his abdomen. The metastatic cancer would eventually spread to the spleen, liver, pelvis and neck. Bosco died on May 17, 2002. On September 6, 2002, Bosco's wife, Pam Bosco, individually and as the executor of Bosco's 6

1-07-0617 estate, filed a medical malpractice lawsuit against Dr. Brasco, Northwest Community Hospital, Dr. Janowitz, Westmont Family Practice, S.C., Dr. Gregorio Orbeta, Jr., and Gregorio R. Orbeta, Jr., M.D., S.C.1 On October 3, 2006, a jury trial commenced at which the plaintiff and defendants presented the testimony of several expert witnesses. At trial, Dr. Richard Corlin (Dr. Corlin), a gastroenterologist, testified on behalf of the plaintiff. He testified that patients with ulcerative colitis and polyps, as in Bosco's situation, have an exceedingly high risk of developing colon cancer. He testified that because Bosco's colon had the presence of both polyps and ulcerative colitis, two indicia for cancer development, Dr. Orbeta should have taken biopsies from the entire colon, rather than only the transverse colon. To a reasonable degree of medical certainty, Dr. Corlin testified that both Dr. Janowitz and Dr. Orbeta breached the standard of care by failing to create a colon cancer detection plan, failing to communicate the plan to Bosco, and failing to execute a colon cancer detection plan. These omissions, he opined, caused and contributed to the development of metastatic colon cancer and Bosco's death. The plaintiff also presented the expert testimony of Dr. Patrick Sullivan (Dr. Sullivan), who specialized in internal medicine. Dr. Sullivan testified that even when a primary care physician refers a patient to a specialist, the primary care physician is still responsible for coordinating the patient's care. Dr. Sullivan opined that the primary care physician "has to find out what is going on

Prior to trial, Dr. Brasco and Northwest Community Hospital settled with the plaintiff, and were dismissed with prejudice from the lawsuit. Thus, they are not parties before this court on appeal. 7

1

1-07-0617 with the patient, what's the diagnosis, what's the problem." He testified that in his own practice, his responsibility did not end once he referred a patient to a specialist because the primary care doctor is "the doctor that the patient will turn to for questions." In Dr. Sullivan's opinion, Dr. Janowitz breached the standard of care by not creating a colon cancer detection plan, by failing to communicate such a plan to Bosco, and by failing to execute such a detection plan. It was Dr. Sullivan's opinion that by failing to have a cancer detection plan, which would have included annual exams such as testing stools for occult blood, blood tests, and liver function tests, Dr. Janowitz caused and contributed to the development and spread of Bosco's colon cancer, which ultimately led to his death. Dr. Sullivan further testified that had stool testing or a colonoscopy been done in 1998, Bosco's colon cancer would have been detected at that time. Doctors Janowitz, Orbeta, Eisenstein and Barrett testified on behalf of the defense. Dr. Janowitz testified that the standard of care for a primary care physician between 1993 and 1999 did not require the physician to advise a patient of all risks and complications relating to his disease, when the patient's condition was being treated by a specialist. Rather, the primary care physician's role was to try to get the patient treated by a physician who could best deal with the patient's problem. Dr. Janowitz testified that once Bosco was diagnosed with ulcerative colitis, it was his plan to have Bosco continue to be followed by his gastroenterologist, Dr. Sweeney. He stated that the reason he did not discuss the risks and long-term issues of ulcerative colitis with Bosco was because "I refer [patients] to the doctor who can do the best for them to treat that problem the best. And that's why I sent him to Dr. Sweeney, so that Dr. Sweeney would use more knowledge of that problem and could give Mr. Bosco [all] of the information that [he] needed about [his] particular 8

1-07-0617 problem that I couldn't." Dr. Janowitz stated that he further communicated such a plan to Bosco by continually referring him to Dr. Sweeney, who was a gastroenterologist, for evaluation and treatment of his ulcerative colitis. Dr. Steve Eisenstein (Dr. Eisenstein), a board-certified family practice physician, testified on behalf of Dr. Janowitz. He testified that, to a reasonable degree of medical certainty, Dr. Janowitz complied with the standard of care, and Dr. Janowitz's treatment did not cause injury to Bosco. Specifically, Dr. Eisenstein opined that after Dr. Janowitz's referral to Dr. Sweeney and Dr. Sweeney's subsequent diagnosis, Dr. Sweeney became the primary treater for Bosco's ulcerative colitis. He opined that a gastroenterologist was the appropriate physician to make management decisions about Bosco's condition

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