{ "id": 2929887, "name": "FRANCES HARMON, Plaintiff-Appellee, v. JASHBHAI PATEL, Defendant-Appellant", "name_abbreviation": "Harmon v. Patel", "decision_date": "1993-05-10", "docket_number": "No. 1\u201491\u20143329", "first_page": "32", "last_page": "38", "citations": [ { "type": "official", "cite": "247 Ill. App. 3d 32" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "559 N.E.2d 752", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 186", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592170 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0186-01" ] }, { "cite": "583 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "77" } ], "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 919", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5797623 ], "weight": 2, "pin_cites": [ { "page": "925" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0919-01" ] }, { "cite": "303 N.E.2d 146", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 672", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2683417 ], "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0672-01" ] }, { "cite": "599 N.E.2d 1015", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 596", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5188968 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0596-01" ] }, { "cite": "597 N.E.2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 715", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499269 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0715-01" ] }, { "cite": "462 N.E.2d 753", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 205", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5679234 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0205-01" ] }, { "cite": "554 N.E.2d 454", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 285", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2482360 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0285-01" ] } ], "analysis": { "cardinality": 735, "char_count": 15764, "ocr_confidence": 0.774, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.31352078827761776 }, "sha256": "84fed39ed096721402b429c5c21e1fe62a28fb892784593a49cdeb12f01f18cb", "simhash": "1:33d4fdb6a9d545e4", "word_count": 2467 }, "last_updated": "2023-07-14T17:38:22.874712+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANCES HARMON, Plaintiff-Appellee, v. JASHBHAI PATEL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThis appeal arises from a medical malpractice action brought by plaintiff Frances Harmon against defendant Jashbhai Patel, M.D., for failure to diagnose and, treat a staph and strep infection which allegedly resulted in necrotizing fascitis, thereby necessitating emergency and follow-up surgery. After a jury trial in which plaintiff\u2019s expert testified, plaintiff received a verdict in the amount of $508,750. Defendant appeals the verdict on the grounds that the circuit court erred in refusing to strike plaintiff\u2019s expert\u2019s standard of care testimony as being inconsistent with his deposition testimony in violation of Supreme Court Rule 220 (134 Ill. 2d R. 220) and that her expert\u2019s testimony was insufficient to establish proximate cause.\nOn November 30, 1983, plaintiff\u2019s car struck a large water pipe, causing her to hit her head and suffer a cut on her right knee. Plaintiff\u2019s sister, Patricia Welch, took her to St. James Hospital, where she was admitted. On December 2, 1983, plaintiff began suffering considerable pain in her right leg and informed the nurses and defendant about the pain. Defendant told plaintiff not to worry because no bones had been broken, and that the knee was merely bruised. By her third full day in the hospital, December 3, plaintiff\u2019s knee was worse. The knee was continuing to swell. Additionally, not only was the knee starting to change to a pinkish and yellowish color, but the color change had already crept to the beginning of her thigh. Plaintiff testified that she could not keep any cover on the knee because it felt so hot and informed defendant of this.\nOn plaintiff\u2019s fourth day in the hospital, the swelling had continued to travel further up her thigh and the pain was increasing. She began receiving injections of Demerol, which made her pain temporarily subside. She further testified that there was yellowish pus, which had an unpleasant odor, coming from the knee wound. Again, plaintiff informed defendant of the above. The next day progressed much like the fourth day had. Referring to the sixth day of her hospital stay, plaintiff described her leg as \u201cgross\u201d because it was \u201cyellow, pink, red, whatever\u201d and \u201clooked like a bunch of worms.\u201d She complained to defendant that her leg was still hot and now had begun to itch. The pain had also travelled so that her \u201centire body was in pain.\u201d Plaintiff testified that her stomach was swollen to the point that it appeared that she was four or more months pregnant. Further, she could not have a bowel movement. Plaintiff claimed to have informed everyone that came into her room of her condition, including defendant. By the seventh and eighth day in the hospital, plaintiff was so nauseated that she could not eat. Defendant, however, explained that what was wrong with plaintiff\u2019s leg was \u201cgoing to run its course.\u201d\nOn the ninth night, plaintiff requested a glass of water. When the nurse brought her the water, a pain shot through her and she dropped the water. Plaintiff pleaded with the nurses to call her mother or a doctor. When the nurse refused, stating that she was hallucinating, plaintiff attempted to reach the telephone on the side of her bed; the nurses wrestled it away from her. Finally, plaintiff successfully contacted Welch, who came to the hospital immediately. Welch demanded that the nurse call defendant. Welch did speak with defendant at between 2 and 3 a.m. on the morning of December 10, relating to him plaintiff\u2019s condition. Defendant responded that he would come to the hospital right away. Defendant, however, did not come until at least four hours after Welch had spoken to him. Another doctor, Dr. James McLean, accompanied defendant and examined plaintiff. After the examination, McLean obtained plaintiff\u2019s consent for immediate surgery. Approximately 45 minutes after McLean\u2019s examination, plaintiff underwent surgery.\nPlaintiff underwent two surgical procedures to treat an infection known as fulminating necrotizing fascitis. During the surgical procedures, over 20 bone-deep incisions were made in plaintiff\u2019s leg in order to release the pus and infection. Plaintiff suffers numerous permanent and disfiguring scars, as well as significant functional impairment.\nAt trial, plaintiff\u2019s expert, Dr. Richard Considine, testified that defendant failed to diagnose and treat plaintiff\u2019s staph and strep infection. Considine opined that defendant\u2019s malpractice lay in his failure to diagnose and treat, and thereby eliminate, the staph and strep organisms before they could cause the necrotizing fascitis.\nDefendant testified at trial that he did not note plaintiff\u2019s knee wound until December 4. Defendant did, however, treat plaintiff for a yeast infection which he diagnosed from a urine test. This treatment did not have any relevance to plaintiff\u2019s knee, and he eventually admitted that he never prescribed any antibiotics to treat her knee. Defendant further testified that as late as December 5 there was no change in the swelling of plaintiff\u2019s leg. On December 6, he ordered a culture on her knee wound. Defendant also admitted that he did not suspect a leg infection until late in the evening of December 8.\nNext, defendant\u2019s expert, Dr. Coleman Seskind, testified. He had reviewed plaintiff\u2019s medical records and noted that contrary to defendant\u2019s testimony, the swelling in plaintiff\u2019s knee and leg continued throughout her hospital stay. Seskind further testified that clinically significant drainage from plaintiff\u2019s knee did not begin until December 8. Additionally, Seskind admitted that the record contained a measurement of plaintiff\u2019s thigh which indicated that her right thigh was six inches greater in diameter than her left thigh, although he felt this fact was not \u201cclinically significant.\u201d Lastly, he stated that part of the basis for his opinion th\u00e1t defendant properly treated plaintiff was the assumption that defendant realized that there was increasing swelling in her leg. Defendant, however, testified that he never noticed increased swelling between the day he first saw plaintiff and the day of her first surgery.\nThe jury returned a verdict in favor of plaintiff in the amount of $508,750. Defendant now appeals.\nA jury verdict based upon conflicting evidence should not be set aside unless opposite evidence was clearly evident. (Topp v. Logan (1990), 197 Ill. App. 3d 285, 554 N.E.2d 454.) It is the function of the jury to weigh contradictory evidence and to judge the credibility of witnesses at trial. Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 462 N.E.2d 753.\nAt trial, Considine testified that by December 4, plaintiff\u2019s fourth day in the hospital, defendant should have diagnosed and treated the staph and strep infection in plaintiff\u2019s knee which was spreading upward to her thigh. Defendant did not object to that testimony. Then, Considine opined that to a reasonable degree of medical certainty, if the staph and strep infection had been properly diagnosed and treated with oral antibiotics beginning on December 4, plaintiff\u2019s surgery would have been avoided. In his opinion, the surgery would have been unnecessary because the infection would have cleared up prior to becoming necrotizing fascitis. Thus, Considine opined that as a result of defendant\u2019s breach of the standard of care, plaintiff\u2019s infection turned into necrotizing fascitis.\nDefendant argues that since the circuit court found that the above testimony violated Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)), he is entitled to judgment notwithstanding the verdict or, in the alternative, to a new trial. The circuit court found that Considine\u2019s testimony at trial contradicted his deposition testimony in violation of Rule 220(d), but held that the extensive cross-examination cured that violation.\nDuring his deposition, Considine was asked a series of questions relating to the time at which oral antibiotic treatment would have prevented the existing staph and strep infection from becoming necrotizing fascitis. At deposition, Considine testified that it was his medical opinion that oral antibiotics would not have been appropriate on December 6, 5, and 4. He explained his opinion by stating that oral antibiotics definitely would have been appropriate on December 3 because that was when defendant should have suspected infection, due to the fact that plaintiff was running a temperature accompanied by swelling and pain in her knee around the puncture wound. He further testified during his deposition that if defendant had ordered appropriate antibiotics on December 3, he did not \u201cthink you would be talking about deviation from care.\u201d Additionally, Considine stated during his deposition that if defendant had ordered antibiotics on December 3, \u201cmaybe he would have avoided a lot of things that happened later on.\u201d At trial, however, Considine testified that if defendant had begun to properly diagnose and treat the staph, and strep infections by December Jk, he would not have breached the standard of care. Defendant argues that the trial testimony differs from the deposition testimony and, therefore, violates Supreme Court Rule 220(d). The trial testimony, however, is more conservative than the deposition testimony, which was that defendant should have prescribed antibiotics on December 3. Thus, the trial testimony favors defendant by allowing him one more day before, in Considine\u2019s medical opinion, he deviated from the standard of care. Defendant, by his own admission, did not even suspect an infection in plaintiff\u2019s knee and leg until December 8.\nDefendant cites Lowney v. Arciom (1992), 232 Ill. App. 3d 715, 597 N.E.2d 817, and Marshall v. Taylor-Wharton Co. (1992), 234 Ill. App. 3d 596, 599 N.E.2d 1015, to support his argument that he is entitled to a new trial because Considine\u2019s trial testimony deviated from his deposition testimony, thereby violating Rule 220(d). In Lowney, the court held that an expert\u2019s testimony at trial as to defendant\u2019s failure to warn a patient of risks of a procedure should not have been admitted because the expert failed to mention the duty to warn when asked at his deposition to give every opinion he had concerning the doctor\u2019s treatment of the plaintiff. (Lowney, 232 Ill. App. 3d 715, 597 N.E.2d 817.) Thus, in Lowney, there was a complete failure to testify at deposition to a failure to warn, and consequently testimony at trial regarding such was a surprise. In Marshall, the court found that plaintiff\u2019s expert violated Rule 220(d) by introducing new evidence, specifically, testimony of design alternatives which had never been discussed in deposition or disclosed prior to trial. (Marshall, 234 Ill. App. 3d 596, 599 N.E.2d 1015.) The case at bar does not involve new testimony on a subject. Here, the trial testimony is slightly different and, in fact, is favorable to defendant when compared to his deposition testimony. Thus, the above cases are distinguishable from the instant case.\nSince the trial testimony was not new testimony, as in the cases cited by defendant, and further, because such testimony did not affect defendant detrimentally, we affirm the circuit court\u2019s finding that any alleged violation of Supreme Court Rule 220(d) was cured by extensive cross-examination during which Considine explained that he felt that if appropriate antibiotics were given to plaintiff starting on December 3-4, there would have been ample opportunity for the drugs to cure the staph and strep infections prior to them becoming necrotizing fascitis. Accordingly, defendant is not entitled to judgment notwithstanding the verdict or a new trial on the basis of a violation of Rule 220(d).\nDefendant\u2019s next contention is that Considine\u2019s testimony failed to establish that defendant\u2019s deviation from the standard of care proximately caused plaintiff\u2019s condition to worsen to the point that immediate surgery was necessary. Defendant argues that Considine\u2019s causation testimony was speculation. Considine ultimately testified that to a reasonable degree of medical certainty defendant\u2019s deviation from the standard of care by not prescribing antibiotics for plaintiff\u2019s strep and staph infections proximately caused those infections to evolve into necrotizing fascitis. In medical malpractice cases, the causal connection \u201cmust not be contingent, speculative or merely possible, but there must be such a degree of probability as to amount to a reasonable certainty that the causal connection exists.\u201d (Borowski v. Von Solbrig (1973), 14 Ill. App. 3d 672, 680, 303 N.E.2d 146, 152.) Although Considine was asked by defense counsel whether his opinion was \u201cspeculation\u201d and he answered in the affirmative, he was effectively rehabilitated on redirect examination when plaintiff\u2019s counsel inquired of Considine what he meant by \u201cspeculation,\u201d and Considine responded that he meant \u201creasonable degree of medical certainty.\u201d Considine explained that he thought defense counsel used the word \u201cspeculation\u201d because medicine is not an absolute science.\nRelying on Thomas v. University of Chicago Lying-In Hospital (1991), 221 Ill. App. 3d 919, 583 N.E.2d 73, defendant further argues that Considine\u2019s alleged lack of experience rendered his causation opinions insufficient as a matter of law. Defendant is correct that the established law is that an expert\u2019s opinion lacks probative value unless it is accompanied by foundation evidence establishing a witness\u2019 expertise or experience to form such an opinion. (Hackett v. Equipment Specialists, Inc. (1990), 201 Ill. App. 3d 186, 559 N.E.2d 752.) In Thomas, the expert was testifying to matters dealing with obstetrics and gynecology when her specialty was pediatrics. (Thomas, 221 Ill. App. 3d at 925, 583 N.E.2d at 77.) Here, Considine was testifying to matters within his expertise, namely, infections. He had treated hundreds of infections, including staph and strep, and when he gave his opinions, he was relying on three decades of experience in treating such infections along with research he had done regarding necrotizing fascitis. The fact that none of the infections which he treated had progressed to necrotizing fascitis is irrelevant. Considine made a clear causal relationship between preexisting infections, particularly staph and strep infections, and the development of necrotizing fascitis. He also testified that preexisting strep and staph infections are associated with necrotizing fascitis. It is irrelevant that the medical community does not understand why some infections lead to necrotizing fascitis when left untreated and other infections do not.\nThe essence of Considine\u2019s testimony is unmistakable: if the strep and staph organisms had been eliminated by appropriate treatment early on in the infectious stage, those organisms would not have been present to cause the necrotizing fascitis. This opinion was based on his knowledge of staph and strep infections and research he had done prior to trial. We hold that the plaintiff\u2019s expert\u2019s testimony was sufficient enough for the jury to find that defendant\u2019s failure to properly diagnose and treat the staph and strep infections proximately caused the infections to become necrotizing fascitis, thereby requiring immediate surgery.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nMANNING, P.J., and O\u2019CONNOR, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Lord, Bissell & Brook, of Chicago (William C. Anderson III, Hugh C. Griffin, and Sandra K. Macauley, of counsel), for appellant.", "Thomas C. Moore, James C. Reho, and Jane F. Anderson, all of Chicago, for appellee." ], "corrections": "", "head_matter": "FRANCES HARMON, Plaintiff-Appellee, v. JASHBHAI PATEL, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201491\u20143329\nOpinion filed May 10, 1993.\nLord, Bissell & Brook, of Chicago (William C. Anderson III, Hugh C. Griffin, and Sandra K. Macauley, of counsel), for appellant.\nThomas C. Moore, James C. Reho, and Jane F. Anderson, all of Chicago, for appellee." }, "file_name": "0032-01", "first_page_order": 50, "last_page_order": 56 }