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Fifth District remands wrongful death action arising from decedent’s sprained ankle, orders new trial

By Heather Isringhausen Gvillo | Jul 14, 2015


The Fifth District Appellate Court has reversed Madison County Circuit Judge Andreas Matoesian and remanded the wrongful death case arising from an 11 year old injury for a new trial.

On appeal, the plaintiffs had argued that the trial court deprived them of a fair trial when it made erroneous rulings on discovery matters and evidentiary issues, calling them “unduly prejudicial”

Justice Judy Cates delivered the July 9 opinion for the appellate court, agreeing that Matoesian erred when he allowed the defendants to use and rely on certain testimonies from two experts and the decedent’s sister in a week-long jury trial that resulted in a verdict in favor of the defense.

Plaintiff James J. Greco, as special administrator of the estate of Tamara Kay Greco and as legal guardian and next of friend of Taylor Rose Marie Greco, Heather N. McKaig and Nicholas McKaig, minors, sued Orthopedic & Sport Medicine Clinic P.C. and Dr. Bruce T. Vest, originally in 2006. 

The case at issue was refiled in 2011. 

According to the complaint, the decedent suffered an injury to her left ankle when she rolled it while bowling on April 29, 2004. She was evaluated at St. Anthony’s Hospital that evening, when the attending physician ordered X-rays, which allegedly revealed no evidence of a fracture or dislocation. She was diagnosed with a severe sprain and was instructed to keep her ankle elevated. She was given crutches and Vicodin and was referred to Vest at Orthopedic & Sports Medicine Clinic for further evaluation and treatment.

She visited the clinic the next day and was evaluated by physician’s assistant Doug Spafford, who prescribed Ultracet for pain and directed her to wear an equalizer fracture brace and to use crutches. Later that day, the decedent called the clinic and said she was experiencing a tingling sensation in her toes. She was told to loosen the straps on the brace.

She returned on May 5, complaining of pain and swelling in her ankle and foot. Vest noted moderate soft-tissue swelling, bruising on her heel and tenderness.

During trial, he testified that he considered a deep vein thrombosis (DVT) in his differential diagnosis, but ruled it out based on his findings during the examination.

Then on May 7, Steve Selby, an attorney for whom the decedent worked, testified that he was talking in the office parking lot after work and discovered the decedent lying on the ground near her car, lapsing in and out of consciousness. He called 911.

She was transported to St. Anthony’s Hospital. While there, she allegedly told her husband that she could not breathe. She was pale, sweating and thrashing when her eyes rolled back in her head and she went into cardiopulmonary arrest, according to the court record. 

The hospital staff attempted to resuscitate her for more than an hour, but she did not respond. She was pronounced dead at 6:13 pm on May 7.

An autopsy was performed by Dr. Raj Nanduri, who determined that Greco died as a result of bilateral pulmonary thromboemboli (blood clots blocking arteries in the lungs), secondary to immobility of the left foot.

In their lawsuit, the plaintiffs claim the defendants negligently evaluated and treated Greco’s ankle injury, which led to her pulmonary emboli that resulted in her death.

The plaintiffs appealed following the trial through attorneys David Horan and Gregory Fenlon of St. Louis, arguing that “erroneous rulings by the trial court on discovery matters and evidentiary issues were unfairly prejudicial and deprived them of a fair trial,” the opinion states.

The plaintiffs argued that the decedent’s sister, Kristen Dover, was erroneously allowed to testify that she had been recently diagnosed with carotid artery disease and was told by her doctor that she was at risk for developing blood clots. They claim the testimony was irrelevant, incompetent hearsay and was unduly prejudicial.

The civil court denied the plaintiff’s motion to exclude the testimony. The appellate court, however, found that the testimony was inappropriate.

“[W]e find that the court erred in allowing Dover to testify about her diagnosis because the testimony was improper hearsay and because the probative value, if any, was heavily outweighed by the potential to confuse or mislead the jury on the standard of care and causation," Cates wrote. .

“In this case, Dover testified to out-of-court statements made by her doctor and the testimony was offered to prove the truth of the matter asserted. Dover was not qualified to provide opinions regarding the nature of her diagnosis and its attendant risks, and the accuracy and reliability of her testimony rested upon the credibility of a person not before the court and not subject to cross-examination."

The defendants employed the hearsay statements to argue that unbeknownst to them, the decedent had a “major” risk factor for the development of a DVT, and that the care and treatment they provided was within the proper standard of care given the information that was known at the time of treatment, the appellate court ruled.

They also employed the hearsay statements to suggest that had they known that the decedent had a family history of a blood clotting disorder, the standard of care may have required them to warn Greco of her risk for developing a DVT, which may have required an ultrasound, Cates wrote.

Further, Dover’s testimony, when considered in tandem with that of pathologist Dr. James Gill, had “great” potential to mislead the jury about causation and “invited them to speculate about whether the decedent’s death was related to the ankle injury,” Cates concluded.

Gill testified that the decedent had a 50 percent blockage in one of the major arteries in her heart, which is a “serious” health issue and would have reduced her life expectancy. However, none of the experts testified that it contributed to her death.

“Dr. Gill’s testimony floated about, untethered, and invited nothing more than inappropriate speculation about the cause of the decedent’s death,” Cates wrote.

Therefore, the appellate court reversed the trial court’s verdict and remanded the case for a new trial.

The plaintiffs also raised concerns over Gill’s and Vest’s testimony. Given that the case was remanded for a new trial, the appellate court reiterated that the Illinois Supreme Court Rules, including disclosure requirements, are “not aspirational; they have the force of law and carry the presumption that they will be both obeyed and enforced as written.”

“Pretrial discovery is intended to enhance the truth-seeking process, to enable attorneys to better prepare for trial, to eliminate surprise, and to promote an expeditious and final determination of controversies. Parties must not be allowed to flout our discovery rules without consequence, and so we admonish the parties that it is essential that the experts’ opinions and the bases therefor be disclosed in accordance with the disclosure requirements,” Cates wrote.

The plaintiffs also claim the trial court abused its discretion in prohibiting the plaintiffs from taking discovery depositions of a corporate designee of the clinic, which they say is necessary to determine the whereabouts of X-rays of the decedent’s ankle. They claim this is an issue of spoliation of evidence and want to know if they could have included a count for spoliation in their complaint.

The defendants fought against the deposition of a corporate designee, claiming it was a poly to obtain a supplemental deposition of Vest. They also claimed a corporate designee was unlikely to lead to the discovery of the missing X-rays.

The appeals court held that the X-rays were “clearly relevant” and proper items for discovery in this case.

“In our view, the plaintiffs should have been permitted further inquiry into how the clinic handled, stored, and disposed of the decedent’s X-rays, and also its general practices with regard to the handling, storage and disposition of the X-rays in 2004.

On the other hand, because the plaintiffs failed to appear for a hearing on their motion to compel, they waived their claim that they were deprived of the deposition opportunity.

However, Cates noted that because this case is remanded for a new trial, the plaintiffs should be provided with the opportunity to conduct discovery depositions of the corporate designee and the two clinic witnesses who would have knowledge of the handling and storage of the X-rays.

Justices Richard Goldenhersh and S. Gene Schwarm concurred in the decision.

The defendants were represented by Philip Willman, Teresa Young and Samuel John Vincent III of Brown and James in St. Louis. 

Madison County Circuit Court case number 11-L-140

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