Cummings v. Jha

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Cummings v. Jha

State: Illinois

Court: 5th District Appellate

Docket No: 5-08-0182 Rel

Case Date: 09/25/2009

Preview:NO. 5-08-0182
NOTICE Decision filed 09/25/09. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ R. KEVIN CUMMINGS and PAM ELA R. CUMMINGS, ) Appeal from the ) Circuit Court of ) Marion County. Plaintiffs-Appellees, ) ) v. ) No. 01-L-74 ) GAUTAM JHA, M .D., ) ) Defendant-Appellant, ) ) and ) ) S. LAKSHMANAN, M.D., ) Honorable ) Patrick J. Hitpas, Defendant. ) Judge, presiding. ________________________________________________________________________ PRESIDING JUSTICE WEXSTTEN delivered the opinion of the court: The defendant, S. Lakshmanan, M.D., performed laparoscopic surgery on the plaintiff, R. Kevin Cummings, to remove Kevin's gallbladder. Kevin suffered a common postoperative complication, a bile leak, that went undiagnosed by Dr. Lakshmanan and the defendantappellant, Gautam Jha, M.D. Kevin, along with his wife, Pamela R. Cummings, filed a medical negligence action against Dr. Lakshmanan and Dr. Jha in the circuit court of Marion County, claiming their postoperative care of Kevin fell below accepted standards of care because they failed to discover and treat the bile leak. After hearing the evidence at a trial, the jury returned a verdict in favor of the plaintiffs and awarded damages of $210,000, and the circuit court entered a judgment on the jury's verdict. Dr. Lakshmanan subsequently reached a settlement with the plaintiffs for a paym ent of $92,500. Dr. Jha moved for a judgment notwithstanding the verdict or a new trial, and the circuit court denied his motion. 1

disposition of the same.

Dr. Jha appeals, arguing that he was entitled to a judgment notwithstanding the verdict because the plaintiffs failed to identify a breach of the standard of care that proximately caused the plaintiffs' alleged damages. Dr. Jha also argues that he was entitled to a new trial because the jury's verdict was against the manifest weight of the evidence, because the circuit court abused its discretion in barring an expert witness from clarifying his testimony, because the circuit court abused its discretion when it instructed the jury that it could award damages for the sick days Kevin had used, and because the circuit court abused its discretion when it allowed the plaintiffs' counsel to engage in repressive questioning tactics. We affirm. BACKGROUND On August 20, 1999, Kevin underwent laparoscopic surgery for the removal of his gallbladder. On the second day after the surgery, Kevin suffered pain similar to that experienced before the surgery, and on August 30, 1999, Kevin returned to Dr. Lakshmanan for a scheduled follow-up appointment and complained about the pain. Dr. Lakshmanan provided Kevin with a prescription for Pepcid or Prevacid for an esophageal spasm. Kevin's pain continued. Because Dr. Lakshmanan was leaving town, on September 1, 1999, his office referred K evin to Dr. Jha, who treated Kevin on September 2, 1999. During Kevin's visit to Dr. Jha's office, he completed a form entitled "Welcome to Our Practice," on which he identified chest pain as his reason for the visit and rated the pain as being sometimes a four on a scale of one to five. Kevin noted on the form that "gall[]bladder surg[ery]" was an "[a]ssociated [s]ign[]/[s]ymptom." Dr. Jha diagnosed Kevin as having viral pericarditis (inflamation of the pericardium or pericardial sac, which surrounds the heart) and prescribed a nonsteroidal, anti-inflammatory drug called indomethacin. On September 6 or 7, Kevin phoned Dr. Jha's office stating that, although he was still experiencing some pain, the medication was helping to alleviate it. Kevin requested more medicine before he left town for a work-related trip to a lineman's rodeo in Kansas City,

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Missouri, and Dr. Jha prescribed additional indomethacin, in addition to Darvocet, a pain medication. On September 10, 1999, Kevin and Pamela traveled to Kansas City for the lineman's rodeo, a competition among electric linemen. After participating in the lineman's rodeo the next day, Kevin woke up during the early morning hours of September 12, 1999, with severe chest pain. Kevin remembered that when he stood up, the pain, which had been centralized in his chest, flooded all over his belly and went "all the way down." That morning, Kevin was admitted to the North Kansas City Hospital in Kansas City, Missouri, with chest and upper abdominal discomfort. Kevin informed Dr. Douglas Bogart, a cardiologist, that he had been diagnosed with pericarditis. After undergoing a clinical examination, an echocardiogram, which was normal, and an electrocardiogram (EKG), which was also normal, Dr. Bogart was not confident that Kevin's pain was due to a cardiac issue such as pericarditis. Dr. Bogart requested gastrointestinal and general surgery consultations. Dr. Trent L. Failing, a general surgeon, ordered a hepatobiliary scan, whereby a small amount of radioactive tracer was injected into Kevin's bloodstream to identify whether or not bile was successfully moving through the system into the small intestine. The radiologist's interpretation of that hepatobiliary scan indicated that there was a bile leak in the bile duct, and Kevin was referred to gastroenterology. Upon discovering the bile leak, Dr. Failing sought to drain the bile that was accumulating and to drain the biliary tract. Initially, to avoid repeat surgery, Dr. Failing chose an endoscopic retrograde cholangiopancreatography (ERCP) procedure, which involved the passage of a flexible endoscope through the mouth through the upper digestive tract into the upper small intestine. When an ERCP is

successfully performed, the anatomy is defined, the bile leak from the liver bed is identified, a stent is placed, the system is decompressed, and percutaneous drainage is established so bile does not pool in the abdominal cavity. Dr. Failing testified that in such a case, the bile

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leak may seal on its own over a period of time to avoid a trip to the operating room. In attempting a successful ERCP on September 13, 1999, gastroenterologist Dr. James Walden sought to obtain images of Kevin's bile duct system to confirm the presence of a leak and, if confirmed, do a secondary procedure as a part of this procedure to attempt to alleviate the leak. Dr. Walden's goal was "to attempt to pass a catheter[, a thin, hollow tube,] through the endoscope and into the opening in the intestinal wall where the bile duct drains bile from the liver into the intestine [and, in doing so,] attempt to inject x-ray dye into the bile duct system *** to obtain images of the bile duct system to examine the anatomy." As is the case in approximately 5 to 10% of the time, however, Dr. Walden was unable to successfully cannulate or inject dye into that bile duct; he was unable to pass a catheter into the bile duct itself. After the unsuccessful ERCP attempt, the physicians planned to attempt percutaneous placement of a drain into the abdominal cavity, i.e., placement of a hollow tube through the abdominal wall, to drain any ascites or fluid, which may contain bile, which is a chemical irritant that can be excruciatingly painful, from the abdominal cavity. The radiologist's attempt to establish the percutaneous drainage so that the leak would at least be controlled was also unsuccessful because a target area, a fluid collection, could not be identified to place the drain to decompress the fluid. Because the gastroenterologists were unable to treat the bile leak conservatively, Dr. Failing ultimately had no other way to evaluate the situation except to perform a surgical exploration. Dr. Failing and Dr. David M. Tripses, also a general surgeon in Kansas City, performed surgery on Kevin on September 14, 1999. Dr. Tripses testified that the resolution of the hepatobiliary scan was not that good, but it indicated that the bile leak was somewhere in the vicinity of where the gallbladder would have been attached to the right lobe of the liver. Dr. Tripses's purpose for the surgery was to visualize the area where the bile leak was.

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Dr. Failing noted obvious bile staining throughout the abdominal cavity. Dr. Tripses explained that, in the course of the surgery, the loose bile in Kevin's abdomen was removed as best as possible. Accordingly, during the surgery, some of the pooled bile was removed from the abdominal cavity, and a drain was placed to allow the drainage of any accumulated fluid from inside the belly to outside. Dr. Tripses testified that they placed a drain in the gallbladder fossa, which is where the gallbladder is attached to the liver, as near as possible to the leak to try to divert the drainage to the outside. Dr. Tripses testified that he last saw Kevin on September 18, 1999, that Kevin's vital signs were stable, that there was some bilious drainage in his drain bolt that had been placed surgically, and that he had improved. Dr. Gregory Barber, a gastroenterologist from Kansas City, testified that after the surgeons identified the bile leak and placed a drain in the area where there appeared to be a bile collection from the bile duct, they felt that, within a period of time, the drain by itself was not going to be enough for Kevin to successfully recover. Dr. Barber was asked to reattempt the ERCP to attempt an internal bridging of that bile duct leak by placing a stent. This procedure allows spontaneous closure of the bile duct leak. Dr. Barber performed the ERCP and successfully placed the stent, which ultimately had to be removed. Kevin would return to Kansas City six weeks later for Dr. Barber to remove the stent. On September 17, 1999, Kevin felt much better, and there was a very small amount of drainage at that point, indicating that the stent was working. Dr. Failing testified that, based upon a reasonable degree of medical certainty, considering that Kevin had a bile leak which had been treated with an attempted ERCP, an attempted radiological approach, laparoscopic surgery, and a successful ERCP with a stent placement and removal, Kevin's long-term prognosis was very good. Dr. Failing testified that Kevin should not experience any long-lasting effects, i.e., no damage to the liver or

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biliary system. Dr. Failing testified that Kevin's short-term prognosis would involve some problems from hospitalization, such as decreased activity, strength, and energy and suffered pain. Ultimately, Kevin was hospitalized in the intensive care unit at North Kansas City Hospital for seven days. On September 19, 1999, he was discharged from the hospital. On November 1, 1999, he was released to work his normal job, with no physical restrictions. As a result of the Kansas City hospitalization, Kevin used 280 hours of sick time, from the 480 hours he had accumulated as of January 1, 1999. Kevin explained that his employer allowed him to accumulate a maximum of 70 hours of sick time each year, with the maximum amount of accumulation totaling 480 hours. By the time of the trial, he had accumulated enough days to replace the 280 hours he had used in 1999 and had therefore reaccumulated the maximum of 480 hours. Kevin earned a $25.49 hourly wage as a lead lineman in August 1999. The plaintiffs filed suit, claiming that Dr. Lakshmanan and Dr. Jha were negligent for failing to timely diagnose a bile leak and resulting biloma when examining Kevin after surgery. As to Dr. Jha, Kevin alleged that he had been negligent in failing to detect the bile leak during the office visit on September 2, 1999. Kevin sought damages for expenses and pain and suffering resulting from the alleged misdiagnosis. Pamela sought damages for the loss of Kevin's society, companionship, consortium, and services. The trial began on October 19, 2007, and continued into November. At the trial, Pamela testified that after she and Kevin had returned from Kansas City, Kevin was afraid to be by himself. Pamela testified that they were required to return to Kansas City two months after the surgery to remove the stent that had allowed the bile to proceed through Kevin's system. Pamela testified that Kevin was out of work for those two months and was depressed and irritable. Pamela testified that Kevin remained irritable for a year after

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returning from Kansas City and that his irritability became a hardship for the marriage. Pamela testified that Kevin also suffered from nightmares and flashbacks. Pamela testified that since that time, they had rebuilt the marriage. Thomas Mehaffey, Ph.D., a retired clinical psychologist, testified that he evaluated Kevin through a clinical interview and psychological testing. Kevin reported that he thought he was dying in Kansas City, that he experienced nightmares and flashbacks following the surgery, and that he was terrified. Dr. Mehaffey testified that the traumatic occurrence of September 12, 1999, in Kansas City caused Kevin posttraumatic stress disorder and associated personality changes. Kevin testified that although he completed the form at Dr. Jha's office on September 2, 1999, indicating that he experienced chest pain that happened various times of the day, that the pain was associated with his gallbladder surgery, and that the Sunday prior to the appointment was the last time he had experienced a major episode of pain, Dr. Jha did not ask him when he first experienced the chest pain or how the pain felt and Dr. Jha did not question him about his recent gallbladder surgery. The plaintiffs presented the expert testimony of Dr. James Moss, an advanced laparoscopic surgeon. Dr. Moss testified that in performing the laparoscopic surgery to remove Kevin's gallbladder, the surgeons did not deviate from the appropriate standard of care. Dr. Moss testified, however, that the most significant complication of this surgery is a leak of bile after surgery because bile is very irritating to the lining of the abdominal cavity. Dr. Moss testified that when a doctor examines a patient who has undergone a laparoscopic cholecystectomy and has had abdominal pain recurring within the first week or so of surgery, the number one diagnosis is a bile leak because it is the most common cause of pain. Dr. Moss reviewed Dr. Jha's records of Kevin's September 2, 1999, visit. Dr. Moss testified that Dr. Jha's diagnosis of pericarditis was incorrect. Dr. Moss testified that there

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was no indication in Dr. Jha's record that he inquired about the precise nature of Kevin's chest pain, which would be something to note to differentiate between pericarditis and a bile leak. Dr. Moss explained, "A biloma is a collection of bile that [is] surrounded inside by sort of an envelope." Dr. Moss testified that, to a reasonable degree of medical certainty, a biloma had formed in Kevin, starting with the onset of pain about two days after he had returned home from the laparoscopic cholecystectomy, because there was a bile leak. Dr. Moss testified that a reasonably competent surgeon in Dr. Jha's position would have determined whether or not there was a biloma or bile leak by drawing blood and performing an ultrasound. Dr. Moss testified that if the proper tests had been performed and the biloma had been detected, a relatively simple procedure, "swallowing [a] hose pipe, ERCP with a

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