Morrisroe v. Pantano

2016 IL App (1st) 143605-U
FIFTH DIVISION
October 14, 2016
No. 1-14-3605
) Appeal from the
WILLIAM A. MORRISROE, special administrator of the ) Circuit Court of
estate of Viola Morrisroe, deceased, ) Cook County
)
Plaintiff-Appellant, )
) No. 11 L 5639
v. )
)
JOHN E. PANTANO, M.D. and SUBURBAN LUNG ) Honorable
ASSOCIATES, S.C., ) James P. McCarthy,
) Judge Presiding.
Defendants-Appellees.
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
Justices Lampkin and Burke concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, William Morrisroe (plaintiff), the special administrator of the
estate of Viola Morrisroe (Viola), deceased, appeals the order of the circuit court of Cook
County entering judgment on the verdict in favor of Dr. John Pantano (Dr. Pantano) and
Suburban Lung Associates, S.C. (collectively defendants). This medical malpractice action
stems from the death of Viola after a bronchoscopy during which biopsies were performed by
Dr. Pantano. On appeal, plaintiff asserts that the trial court erred in: (1) barring his retained
expert from utilizing two CT scans during his testimony to demonstrate that the size of a mass in
Viola's lung had not increased in size; and (2) sustaining defense counsel’s objections to certain
statements in closing argument relating to his informed consent claim. For the following
reasons, we affirm.
1-14-3605
¶2 BACKGROUND
¶3 In 1999, Viola was diagnosed with chronic obstructive pulmonary disease (COPD) and
emphysema by pulmonologist Dr. Edward Diamond (Dr. Diamond), the president of Suburban
Lung Associates, S.C. Over the years that followed, Viola’s condition was monitored by Dr.
Diamond and, in 2006, she began obtaining routine CT scans. In February 2009, a CT scan
(February scan) of Viola’s lungs indicated a new mass had formed in the upper right lobe.1 Dr.
Diamond ordered further testing in the form of a PET scan. The PET scan indicated that, while
unlikely, cancer could not be ruled out. Dr. Diamond discussed the results of the scans with
Viola and recommended that another CT scan be performed in four months.
¶4 Subsequent examinations by Dr. Diamond in 2009 revealed that Viola’s lung function
was significantly decreasing. While Viola's lung function was at 40% in the beginning of the
year, by the summer her lung function was only 26%, prompting Dr. Diamond to downgrade her
COPD from “severe” to “very severe.”
¶5 On September 29, 2009, Viola was admitted to the emergency room for stomach pain and
shortness of breath. A CT scan was taken of Viola's lungs (September scan). The following day,
Viola was examined by Dr. Pantano. After reviewing and comparing the CT scans of her lungs
from February and September 2009 (the scans), Dr. Pantano concluded the mass in the upper
right lobe had increased in size. Dr. Pantano recommended that Viola have a bronchoscopy and
biopsy. Dr. Pantano informed Viola of the risks associated with the procedure, namely the risk
associated with the type of anesthesia used and that bleeding could occur. Viola was not
informed of the risk of death.
¶6 On October 1, 2009, Dr. Pantano performed the bronchoscopy with Viola under
1
This “mass” is also referred to in the record as a “lesion,” a “soft tissue density,” and a
“density.” For clarity, we will refer to the area at issue as the “mass.”
2
1-14-3605
conscious sedation. While taking a biopsy near the mass in question bleeding occurred. Dr.
Pantano took steps to remedy the bleeding and discontinued the bronchoscopy. Subsequent to
the procedure, Viola’s lung began to rebleed. As a result, she developed progressive respiratory
failure and cardiac arrest, which lead to her death.
¶7 On March 12, 2010, plaintiff filed a medical malpractice complaint sounding in
negligence against defendants.2 Plaintiff alleged that defendants’ deviation from the standard of
care in performing the bronchoscopy caused Viola’s death. Specifically, plaintiff alleged that the
mass in Viola’s lung had not changed in size and therefore Dr. Pantano’s decision to perform the
bronchoscopy was unreasonable and deviated from the standard of care. The complaint further
alleged claims based on defendants’ failure to provide Viola with the proper informed consent,
as she was not advised of the risk of death during the procedure.
¶8 Discovery
¶9 As part of discovery, defendants propounded interrogatories pursuant to Illinois Supreme
Court Rule 213(f)(e) (eff. Jan. 1, 2007), requiring plaintiff to disclose the expert witnesses he
intended to call at trial, their opinions, and the bases for those opinions. Plaintiff’s Rule
213(f)(3) disclosure indicated that his retained expert witness Dr. Charles Grodzin (Dr. Grodzin),
a pulmonologist, would testify that in his opinion Dr. Pantano breached the standard of care
when performing the bronchoscopy based on the following: (1) Viola had already undergone a
full noninvasive evaluation of the abnormal mass and it had been decided that the mass did not
warrant any additional procedural evaluation; and (2) the September 2009 radiologist report
noted that the mass was unchanged. The Rule 213(f)(3) disclosure did not contain any
statements indicating Dr. Grodzin had measured the size of the mass as it appeared in the
2
Alexian Brothers Medical Center was originally named as a defendant, but is not a party to this
appeal as summary judgment was previously entered in its favor.
3
1-14-3605
February and September scans.
¶ 10 In his discovery deposition, Dr. Grodzin indicated that his opinion that the mass had not
changed in size was based on: (1) his review of the scans; (2) his measurements of the mass; and
(3) the September 2009 radiologist’s report. Regarding his measurements, Dr. Grodzin could not
unequivocally state he measured the mass and further testified that he could not recall what those
measurements were. Dr. Grodzin did not state in either the Rule 213(f)(3) disclosures or during
the discovery deposition that his opinion that the mass had not changed in size was based on
lowering the screen contrast on the CT scans. Nor did Dr. Grodzin disclose that the screen
contrast of the CT scans affected the appearance of the size of the mass.
¶ 11 Plaintiff’s Case in Chief
¶ 12 At trial, plaintiff, Viola’s husband, testified regarding his relationship with Viola and how
he has been affected by her death. Plaintiff further testified Viola suffered from COPD and
required the use of oxygen from time to time. He further testified that Dr. Diamond, Viola’s
pulmonologist, indicated Viola had a mass on her lung that he was monitoring and would take
action when it grew in size, as it might be cancerous.
¶ 13 Viola’s adult children, Michael Morrisroe (Michael), Julia Morrisroe (Julia), Eric
Morrisroe (Eric), and Susan Lancaster (Susan), testified regarding their relationship with Viola
and how her death affected them. In addition, Julia, via videotaped deposition, testified Viola
suffered from COPD, asthma, and allergies. According to Julia, Viola smoked half a pack of
cigarettes a day beginning in her early 20s, but had not smoked a cigarette for over 25 years.
Julia and Michael testified they were aware Viola had a mass on her lung, and that her physician,
Dr. Diamond, was monitoring her condition to determine whether the mass grew in size. Susan
testified she took her mother to the hospital on September 29, 2009, because Viola did not
4
1-14-3605
generally feel well and was having issues with her stomach. According to Julia, medical testing
indicated that Viola’s blood oxygen was low and Viola was admitted to the hospital. Eric
testified he visited Viola at the hospital on the day of the procedure. She was in a good mood,
and was not worried or afraid of the procedure.
¶ 14 Plaintiff’s retained expert, Dr. Grodzin testified that Dr. Pantano deviated from the
standard of care by proceeding with the bronchoscopy and performing the biopsies. Dr. Grodzin
opined that the bronchoscopy was not warranted because the September scan demonstrated that
the mass was “relatively stable, if not slightly smaller.” Dr. Grodzin based his opinion on
Viola’s medical records, the September 2009 radiologist’s report, and his review of the February
and September scans.
¶ 15 Over defendants’ objections that this testimony had not previously been disclosed, Dr.
Grodzin testified regarding why the scans did not demonstrate an increase in the size of the mass.
During this portion of his testimony, Dr. Grodzin utilized defendants’ exhibit 20, which featured
an image of the mass from the February scan on one side and an image of the mass from the
September scan on the other.3 According to Dr. Grodzin, the February and September scans did
not have comparable images, as they were not taken at the same level in the chest. In addition,
the February scan was performed without IV contrast (a dye that is injected in the patient’s veins
to highlight the vasculature), while the September scan utilized IV contrast. Further, the scans
were performed by different machines, with the February scan taking images further apart than
the September scan, meaning in the September scan had “much” greater detail. Accordingly, Dr.
Grodzin opined that the February and September scans “are not really very comparable to draw
conclusions from.” Directly after this portion of Dr. Grodzin's testimony, defense counsel
3
At the conclusion of the trial testimony, defendant’s exhibit 20 was entered into evidence
without any objection.
5
1-14-3605
objected and a sidebar commenced.
¶ 16 During the sidebar, defense counsel argued that Dr. Grodzin’s testimony regarding the
screen contrast of the scans was not previously disclosed as a basis for his opinion that the mass
had not changed in size. The court reviewed Dr. Grodzin's discovery deposition, and stated:
“THE COURT: I’m looking at line 13. This is where he talks about it and it
changes, but you’ve been going into far different detail than this information that’s on
page[s] 78 and 79.
[Plaintiff’s Counsel]: What he’s saying on pages 78 and 79 is that there is no
change between the February and September CTs.
THE COURT: Yes, but he’s gone far beyond that. He’s gone on to say one is
with contrast, one is without. One is taken with a different type of density sensitivity.
[Plaintiff’s Counsel]: Yes.
THE COURT: That he’s also going through the different segments, and I don’t
see any of that disclosed.
[Plaintiff’s Counsel]: Yes, that is all true, Judge, because what he’s doing is he’s
explaining the difference between the February film and the September film factually.
THE COURT: I disagree.
[Defense Counsel]: That would be the basis of his opinion.
THE COURT: Objection sustained.”
¶ 17 In addition, Dr. Grodzin opined that “a reasonable and careful physician would have
informed [Viola] of the risks of the procedure including the risk of dying” particularly in light of
Viola's medical history.
¶ 18 On cross-examination, Dr. Grodzin did testify that the risk of death during a
6
1-14-3605
bronchoscopy is “probably” less than one percent. Dr. Grodzin further testified that if a patient
presented a CT scan which indicated a mass increased in size, it would be proper to perform a
bronchoscopy. In addition, Dr. Grodzin testified that the PET scan Viola obtained in April 2009
did not definitively rule out that she had lung cancer, as a PET scan cannot detect cancer if the
cancer is too small or of a certain type.
¶ 19 At the conclusion of Dr. Grodzin’s testimony and outside the presence of the jury,
plaintiff’s counsel made a formal offer of proof. During the offer of proof, Dr. Grodzin referred
to the February and September scans, which were displayed on a screen in the courtroom. Dr.
Grodzin testified that he compared each scan, “slice by slice,” and that formed the basis of his
opinion that the mass had not changed. Dr. Grodzin testified that when the September scan was
placed back to its original screen contrast setting, one can observe the vascular structures that are
highlighted with IV contrast and that the mass in the upper right lobe is not actually a mass but is
“just lung tissue that is not inflated.” According to Dr. Grodzin, defendant’s exhibit 20 was not a
fair representation of how the mass appeared on both the February and September scans because:
(1) the scans were conducted differently; (2) the level at which the images are shown are
different; (3) the screen contrast “hides the fact you can identify the lung tissue on the September
scan, and you can’t really see it differentiated as it’s shown [in defendant’s exhibit 20].”
¶ 20 Defendant’s Case in Chief
¶ 21 Dr. Diamond, Viola's pulmonologist, testified as follows. He first diagnosed Viola with
COPD and emphysema in 1999 based on her breathing functioning tests, history of smoking, and
reports of shortness of breath, wheezing and coughing. Over the years, Viola’s COPD worsened;
she had more episodes of shortness of breath, had more frequent hospitalizations, and required
more medication and oxygen.
7
1-14-3605
¶ 22 Upon examining Viola on January 27, 2009, Dr. Diamond ordered the February scan.
The results of the February scan demonstrated that a new mass had developed in the right upper
lobe of her lung. The radiologist suggested Dr. Diamond consider a bronchoscopy and biopsy.
After reviewing the radiologist’s report, Dr. Diamond ordered a PET scan. The results of the
PET scan did not rule out cancer. On April 28, 2009, Dr. Diamond discussed the results of the
PET scan with Viola and recommended that she obtain another CT scan in four months. Over
the spring and summer, Viola’s COPD worsened going from “severe” to “very severe” as her
physical condition was declining and she had only 26% lung function.
¶ 23 On September 29, 2009, Viola was hospitalized for shortness of breath and stomach pain.
She was examined by Dr. Pantano, a member of Dr. Diamond’s practice and the physician who
typically treated Viola when she was hospitalized. Another CT scan was taken of Viola’s lungs.
After reviewing the February and September scans, Dr. Pantano telephoned Dr. Diamond and
stated the scans demonstrated the mass was larger and that Viola’s physical condition was
declining. Dr. Pantano recommended a bronchoscopy and biopsy be performed. Dr. Diamond
agreed, mainly on the basis her physical condition was deteriorating and secondly, that the mass
was enlarging. Dr. Diamond thought a bronchoscopy may be able to open up Viola’s airways
and relieve her shortness of breath, possibly prolonging her life. Dr. Diamond, however, did not
review the September scan and relied on Dr. Pantano’s interpretation of them. According to Dr.
Diamond, a bronchoscopy was the only way to determine if an obstruction was causing a
deterioration of her respiratory condition.
¶ 24 Dr. Pantano, a physician specializing in pulmonary and critical care medicine, testified
that on September 30, 2009, he examined Viola at the hospital. He reviewed Viola’s lab reports,
which indicated she had no issues with clotting and further indicated Viola had low sodium
8
1-14-3605
levels. According to Dr. Pantano, low sodium levels can be associated with someone who has
lung cancer. Upon reviewing all of images from the February and September scans and taking
measurements of the mass in each of those scans, Dr. Pantano testified he had no doubt that the
mass had enlarged. According to Dr. Pantano, the September 2009 radiologist’s report did not
describe any measurement taken of the mass and did not mention the mass. The report only
referred to an atelectasis (an area of the lung which had collapsed) as being stable, which,
according to Dr. Pantano, was not located in the same area of the lung as the mass. Dr. Pantano
testified he believed a bronchoscopy was necessary because neither the February scan nor the
PET scan could rule out cancer and the mass had increased in size. In addition, upon reviewing
Viola’s medical records, it was apparent that Viola’s condition was worsening; she had a decline
in her lung function, was on multiple medications, was using oxygen more frequently, and still
had trouble breathing. Dr. Pantano considered the procedure to have a low risk with benefits that
could improve her breathing and thus believed the benefits outweighed the risks at that time.
¶ 25 Dr. Pantano testified that he consulted with Dr. Diamond regarding whether a
bronchoscopy should be performed on Viola. Dr. Pantano informed Dr. Diamond that the
density in the upper right lobe had increased in size and given the fact she was clinically
worsening, recommended a bronchoscopy be performed. Dr. Diamond agreed with Dr.
Pantano’s assessment.
¶ 26 Dr. Pantano further testified that he discussed performing a bronchoscopy with Viola.
Dr. Pantano informed Viola that the mass in her upper right lobe was enlarging, explained the
procedure in detail, and discussed that the most likely complications would be over sedation
from conscious sedation and bleeding during the biopsy. Dr. Pantano testified that he did not
inform Viola that she could die from a bronchoscopy because the risk of death is so small, less
9
1-14-3605
than one percent. Dr. Pantano recommended the bronchoscopy because he “believed that there
was a significant chance of improving her breathing if we found something in the airway that
could be treated.” Viola agreed to go forward with the bronchoscopy and signed the informed
consent form which had been prepared by the hospital.
¶ 27 Dr. Pantano testified that on October 1, 2009, he performed the bronchoscopy with Viola
under conscious sedation, which is generally safer than deeper anesthesia because the patient is
essentially still awake and breathing on their own. According to Dr. Pantano, the bronchoscopy
revealed Viola had a blockage of the apical segment, which could have been treated with a stent.
Dr. Pantano then took biopsies from the upper right lobe and then two biopsies near the posterior
segment of the mass. It was during these two posterior biopsies that bleeding occurred. Dr.
Pantano stopped the bleeding and discontinued the bronchoscopy. Dr. Pantano testified he had
no reason to believe that Viola would continue to bleed after the procedure was completed.
Approximately two hours after the procedure ended, Viola began rebleeding, was intubated, and
then transferred to the intensive care unit where she expired.
¶ 28 Dr. Michael Kaufman (Dr. Kaufman), a senior attending pathologist and director of
autopsy services for NorthShore Hospital System, testified via videotaped evidence deposition
regarding Viola’s cause of death. According to Dr. Kaufman, Viola’s cause of death was
“multifactorial and included bilateral pneumothorax [collapse of both lungs], a hemorrhage of
the right upper lobe[,] and severe bullous emphysema.” Dr. Kaufman further testified that “[t]he
hemorrhage in the right upper lobe and the bilateral pneumothorax were as a consequence from
complications from the bronchoscopy procedure that was performed the day of Ms. Morrisroe’s
death.” In addition, Dr. Kaufman testified that no tumors or cancerous lesions were discovered
during the autopsy.
10
1-14-3605
¶ 29 Dr. Patrick Fahey (Dr. Fahey), a physician specializing in internal medicine with a
subspecialty in pulmonary disease, testified as an expert on behalf of defendants. Upon
reviewing Viola’s medical records and films, along with the depositions in this matter, Dr. Fahey
opined that Dr. Pantano met the standard of care in ordering the bronchoscopy and responding to
the bleeding that occurred during the biopsy. Dr. Fahey opined, to a degree of medical certainty,
that it was reasonable to perform a bronchoscopy on Viola because there was “an enlarging
density in the right lung in a patient who is at significant increased risk of having lung cancer.”
In addition, Dr. Fahey opined that the benefits of a bronchoscopy in this case outweighed the
risks and that generally a bronchoscopy is a low risk procedure.
¶ 30 According to Dr. Fahey, Viola was suffering from a deteriorating clinical situation with
recurrent exacerbations of her underlying lung disease and that “the worry is that there is
something potentially obstructing the bronchial tube that is increasing her recurrent
exacerbations.” Thus, Dr. Fahey further opined that the bronchoscopy would have been
beneficial to Viola because it could have identified what was occurring in the right upper lobe,
and, if it had been a mucus plug it could have been cleared out at the time of the bronchoscopy.
Dr. Fahey explained that neither the scans nor the PET scan could rule out cancer in this case.
Based upon his independent measurement of the mass as it appeared in the February and
September scans, Dr. Fahey testified he agreed with Dr. Pantano’s assessment that the mass
increased in size. Accordingly Dr. Fahey opined that, “The only reasonable way to determine
what is going on in that right upper lobe is to perform a bronchoscopy, identify things, and
potentially treat things that could be causing occlusion of the bronchus.”
¶ 31 Closing Argument and Posttrial Motions
¶ 32 In closing, plaintiff's counsel argued that Dr. Pantano failed to inform Viola of the
11
1-14-3605
possible risk of death from the procedure. In making this argument, plaintiff's counsel stated as
follows:
“[Plaintiff’s Counsel]: You think for one minute if they thought this was going to
be a risky procedure, that there was a chance of death that they would have left her there
by herself to die alone. This is an educated, smart, aggressive, organized woman. She
would have made sure that she would have talked to her primary care physician, that she
had told, she would have gotten a second opinion, she—
[Defense Counsel]: Your Honor, this is improper argument under the law.
THE COURT: Objection sustained.
[Plaintiff’s Counsel]: Ladies and gentlemen, all of the steps and procedures that a
reasonably careful person would do if they're told if there’s a risk of death. She wasn’t
given the opportunity to do any of those things[.]
[Defense Counsel]: Again, object to the argument of informed consent.
THE COURT: Objection sustained.
[Plaintiff’s Counsel]: In this case you have to decide what would this woman do.
What would a reasonably, careful woman do under these circumstances.
[Defense Counsel]: Again, object to the reference to this woman.
THE COURT: Objection sustained.
***
[Plaintiff’s Counsel]: Dr. Grodzin told you that a reasonably careful physician
would advise a patient of the risk of death. Especially Viola Morrisroe with her prior
history and her high risk.
Dr. Fahey disagreed. Dr. Fahey was going out after he testified here to perform a
12
1-14-3605
bronchoscopy and a biopsy. He wasn't going to tell that patient either. Don’t you think
that a patient would want to know that shaky hand Dr. Fahey that there was a risk of
death associated with that procedure. Isn’t that what a reasonably careful doctor would
do. Especially this woman who had a fear of suffocating. Who had watched her own
mother die a very difficult death.
[Defense Counsel]: Again this is improper argument.
THE COURT: Objection sustained."
¶ 33 Following closing argument, the jury rejected plaintiff’s medical malpractice claims and
returned a verdict in favor of defendants. Plaintiff filed a posttrial motion for entry of a
judgment notwithstanding the verdict or, in the alternative, for a new trial. After the matter was
fully briefed and argued, the trial court denied plaintiff’s motions. This appeal followed.
¶ 34 ANALYSIS
¶ 35 Plaintiff first contends that the trial court erred in barring Dr. Grodzin from utilizing the
two original scans to demonstrate that the size of the mass in Viola's lung had not changed.
Plaintiff asserts Dr. Grodzin intended to demonstrate to the jury how the scans appeared when he
reviewed them and that how the mass appeared on the screen was dependent on the screen
contrast level. Plaintiff maintains this information had been previously disclosed, and that
barring Dr. Grodzin's testimony in this regard was a substantial error which might have tipped
the scales in favor of defendants.
¶ 36 In response, defendants maintain that the trial court did not err in barring Dr. Grodzin’s
testimony regarding the screen contrast of the scans because that testimony was a new basis for
Dr. Grodzin’s opinion that the mass had not changed in size. According to defendants, this
testimony was properly barred as it was not previously disclosed in plaintiff’s Rule 213
13
1-14-3605
disclosures or in Dr. Grodzin’s discovery deposition.
¶ 37 The purpose of discovery rules, governing the timely disclosure of expert witnesses, their
opinions, and the bases for those opinions, is to avoid surprise and to discourage strategic
gamesmanship amongst the parties. Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026,
1032 (2003). As a result, Rule 213(f)(3) states as follows:
“A ‘controlled expert witness’ is a person giving expert testimony who is the party, the
party’s current employee, or the party’s retained expert. For each controlled expert
witness, the party must identify: (i) the subject matter on which the witness will testify;
(ii) the conclusions and opinions of the witness and the bases therefor; (iii) the
qualifications of the witness; and (iv) any reports prepared by the witness about the case.”
Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007).
Rule 213(g) limits expert opinions at trial to “[t]he information disclosed in answer to a Rule
213(f) interrogatory, or in a discovery deposition.” Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2007); Steel
v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 98. Rule 213 disclosures are mandatory and
strict compliance is required. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004). An
expert witness may expand upon a disclosed opinion provided that the testimony states a logical
corollary to the disclosed opinion and not a new basis for the opinion. Cetera v. DiFilippo, 404
Ill. App. 3d 20, 37 (2010); Foley v. Fletcher, 361 Ill. App. 3d 39, 46-47 (2005). That is to say,
the witness’ testimony must be encompassed by the original opinion. Scassifero v. Glaser, 333
Ill. App. 3d 846, 860 (2002); Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 800
(2002).
¶ 38 “Faced with a challenge that testimony was not disclosed or exceeds the scope of Rule
213 disclosure, a trial court’s ruling on the admission of evidence is an exercise of its discretion
14
1-14-3605
and will not be reversed absent an abuse of that discretion.” Steel v. Provena Hospitals, 2013 IL
App (3d) 110374, ¶ 93. A trial court abuses its discretion when “no reasonable person would
take the view adopted by the trial court.” Id.
¶ 39 We find Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1999), a medical
malpractice action regarding the wrongful death of a stillborn infant, to be instructive. In Seef,
the reviewing court found several Rule 213 violations where the defendant’s expert, Dr. Depp,
testified about matters not previously disclosed during discovery. Id. at 23. Dr. Depp during
discovery disclosed his opinion that the decedent had no prenatal risk factors. Id. At trial, the
plaintiffs objected to Dr. Depp’s testimony that: (1) macrosomia was not a condition which
physicians diagnosed in 1980; (2) ultrasound equipment in 1980 was inaccurate as much as 18%
of the time; and (3) the diagnosis of cephalopelvic disproportion cannot be ascertained until well
into labor. Id. The trial court overruled plaintiffs’ objections finding that Dr. Depp’s testimony
explained the bases for his disclosed opinion that the decedent had no prenatal risk. Id. at 23-24.
The reviewing court disagreed. Id. The Seef court explained that although elaborating on a
disclosed opinion does not automatically violate Rule 213, the testimony at issue was not
encompassed by the original opinion that the decedent had no prenatal risk factors. Id. Thus, the
court held that the cited testimony stated new reasons for the opinion, rather than logical
corollaries. Id. In so finding, the Seef court noted, “We strongly urge practitioners that, if an
opinion is important to the theory of one’s case, it is essential that it and the bases therefor be
disclosed. This is a bright line rule and must be followed.” Id. at 24.
¶ 40 Similarly, in Kotvan v. Kirk, 321 Ill. App. 3d 733, 746 (2001), the reviewing court found
the trial court did not abuse its discretion where the basis for the opinion of two expert witnesses
was not previously disclosed. In that case, following cataract surgery and a paracentesis tap, the
15
1-14-3605
plaintiff began experiencing nausea, vomiting, and eye pain. Id. at 737. The plaintiff was
examined by a doctor in the emergency room and diagnosed with gastroenteritis. Id. The
following day, the plaintiff's eye surgeon, diagnosed her with infectious endophthalmitis (IE).
Id. at 738. After surgery, the plaintiff’s eye sight could not be saved. Id. At trial, the plaintiff’s
experts opined that bacteria had entered her eye during the paracentesis tap and that vomiting is a
symptom of IE. Id. at 739. A jury ultimately returned a verdict in favor of the defendants. Id. at
741.
¶ 41 On appeal, the plaintiff argued that the trial court erred by barring undisclosed opinion
testimony related to her blood test results. Id. at 745. A laboratory report of plaintiff’s blood,
which had been previously disclosed, indicated a high white blood cell count and a high
granulocyte count. Id. at 745-46. The plaintiff argued that she should have been allowed to
elicit testimony from her experts that the laboratory report indicated the presence of a bacterial
infection which is consistent with IE and not gastroenteritis. Id. at 746. The reviewing court
found that the trial court did not abuse its discretion in barring the testimony as it stated a new
reason, or basis, for the opinion that plaintiff exhibited signs of IE, and thus, should have been
disclosed. Id. at 746.
¶ 42 In this case, Dr. Grodzin’s proposed testimony, that by adjusting the contrast levels of the
September scan one could view the mass more completely and observe that it consisted of
vasculature and was not a tumor, cannot be considered to have been encompassed by his original
opinion that the mass had not changed based on his review of the scans and measurements of the
mass. Dr. Grodzin’s offer of proof included a new basis as to why he believed the mass had not
changed in size rather than a logical corollary to his original opinion and therefore the trial court
did not err in barring this testimony. If Dr. Grodzin had developed such an opinion after
16
1-14-3605
submitting his Rule 213 disclosures and giving his deposition, he had a duty under Rule 213(i) to
supplement his answers. Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2007). We find no evidence in the
record that he ever requested to amend his answers. See Steel, 2013 IL App (3d) 110374, ¶ 99 (if
an expert developed an opinion after submitting Rule 213 disclosures and giving a deposition,
and it was prior to trial, the expert had a duty under Rule 213(i) to supplement his answers).
¶ 43 We further find plaintiff's reliance on Spaetzel v. Dillon, 393 Ill. App. 3d 806 (2009), to
be misplaced. In Spaetzel, the plaintiffs asserted on appeal that the trial court abused its
discretion when it allowed the defendants’ expert witness to render opinion testimony as to his
interpretation of certain radiography films in violation of Rule 213. Id. at 812. The plaintiffs
argued that the Rule 213 disclosures were not sufficient to have put them on notice that defense
counsel was going to display to the jury blow-ups of two CT scans and then elicit opinions
regarding the defendants’ expert witness’ interpretations of those scans. Id. at 813. The record
indicated that defendants’ expert witness had previously disclosed that he would testify that the
“ ‘air fluid identified postoperatively was not evidence of a recurrent paraesophageal hernia’ ”
and that he had reviewed the CT scans as well as the diagnostic studies. Id. At trial, the defense
expert witness testified that, based on his review of the films and the appearance of the various
shadows and air fluid levels on those films, there “was insufficient evidence of a recurrent hernia
during the postoperative treatment.” Id. at 808-09. The reviewing court found that the particular
opinions elicited from defendants’ expert at trial were permissible as an elaboration on, or a
logical corollary to, the originally revealed opinion. Id. at 813.
¶ 44 While the Spaetzel court found the expert witness’ opinion testimony to be a logical
corollary to an opinion that was already disclosed, in contrast, Dr. Grodzin’s testimony set forth
a new basis for his opinion that the mass had not changed in size. It is well established that the
17
1-14-3605
failure to disclose a new basis for an opinion is improper. See Seef, 311 Ill. App. 3d at 23;
Kotvan, 321 Ill. App. 3d at 746. Disclosure of a retained expert witness’ opinions and the basis
for that opinion “is a bright line rule and must be followed.” Seef, 311 Ill. App. 3d at 24.
Accordingly, we find the trial court did not abuse its discretion when it sustained defense
counsel’s objections and barred Dr. Grodzin from utilizing the scans to testify regarding the
different contrast settings that could be applied when viewing the films.
¶ 45 Moreover, although plaintiff asserts it was “unfair” not to allow him to utilize the original
scans during Dr. Grodzin’s testimony, the record reflects that the trial court permitted plaintiff’s
counsel extensive leeway to question Dr. Grodzin regarding the discrepancies in defendants’
exhibit 20. Over defendants’ objections, Dr. Grodzin was allowed to testify that: (1) the
February and September scans did not have comparable images; (2) the images on the scans
were not done at the same level in the chest; (3) the February scan was taken without IV contrast,
but the September scan was; (4) the scans were performed by different machines; and (5) the
September scan had much greater detail. Although Dr. Grodzin was barred from testifying that
the lower screen contrast was a basis for his opinion that the mass had not changed in size, we
find plaintiff was allowed to present testimony to discredit defendants’ exhibit 20, and therefore
plaintiff was not deprived of the opportunity to challenge the exhibit and, in turn, the opinions of
defendants’ expert. See Iser v. Copley Memorial Hospital, 288 Ill. App. 3d 408, 413 (1997)
(finding the trial court did not abuse its discretion when it did not allow plaintiffs’ expert to
testify to the authoritativeness of certain exhibits that were not properly disclosed).
¶ 46 Plaintiff next argues that the trial court erred in sustaining objections to his counsel’s
attempt to explain informed consent to the jury during closing argument. Plaintiff maintains that
describing Viola’s particular personality characteristics merely provided the attributes of a
18
1-14-3605
reasonable patient and thus the argument should not have been barred. In other words, plaintiff
contends that the “hypothetical reasonable patient must be clothed with the personal
characteristics of the patient whose care is on trial.” According to plaintiff, his counsel was
“simply trying to inform the jury that a reasonable patient in the shoes of this patient would not
have undergone this procedure if told of a risk of death, even if that risk was one percent.”
¶ 47 The plaintiff fails to cite any authority for his proposition, and his argument fails to
provide an explanation why his counsel’s arguments during closing were not improper,
particularly in light of the fact, plaintiff acknowledges in his brief that, “[w]hat this particular
patient would have done was of course a proper ground for an objection.” Therefore, his
argument is forfeited. Ill. Sup. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). In any event, for the reasons
that follow, plaintiff’s argument lacks merit.
¶ 48 The scope and character of closing argument is left to the discretion of the trial judge,
who enjoys the best position to view the demeanor of counsel and the atmosphere of the trial.
Rockwood v. Singh, 258 Ill. App. 3d 555, 558 (1993). Questions as to the prejudicial effect of
remarks made during closing argument are within the discretion of the trial court and
determinations as to such questions will not be overturned absent a clear abuse of discretion.
Simmons v. Garces, 198 Ill. 2d 541, 568 (2002). An abuse of discretion will be found only
where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person
would take the view adopted by the trial court. Petraski v. Thedos, 2011 IL App (1st) 103218, ¶
97. In determining whether there has been an abuse of discretion, we may not substitute our
judgment for that of the trial court, or even determine whether the trial court exercised its
discretion wisely. Simmons, 198 Ill. 2d at 568.
¶ 49 In a medical malpractice action raising a lack of informed consent, a plaintiff must prove
19
1-14-3605
that a physician “should have informed the patient, prior to administering medical treatment, of
the diagnosis, the general nature of the contemplated procedure, the risks involved, the prospects
of success, the prognosis if the procedure is not performed and alternative medical treatment.”
(Internal quotation marks omitted.) Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 53
(quoting Coryell v. Smith, 274 Ill. App. 3d 543, 549 (1995)). An informed consent claim
employs an objective standard and requires that the plaintiff persuade the jury that a “reasonable
person” in her position would have declined to undergo the medical procedure had the additional
risk been disclosed. Davis v. Kraff, 405 Ill. App. 3d 20, 29-30 (2010).
¶ 50 In this case, it was plaintiff’s burden to prove that a reasonable person in Viola’s position
would have declined to undergo the bronchoscopy and biopsy procedure had the additional risk,
that she had a less than one percent chance of death, been disclosed. Our review of the record
reveals that counsel’s arguments did not focus on the reasonable person in Viola’s position, but
instead emphasized how Viola’s particular character traits and family history would have
affected her decision to undergo the procedure. Plaintiff’s counsel’s statements to the jury
implied that the proper legal standard was what Viola would have done had she been informed of
the risk of death and, therefore, were misleading. See Burns v. Michelotti, 237 Ill. App. 3d 923,
939 (1992) (“In presenting their arguments to the jury, counsel may state what they believe the
law to be as long as their remarks are not misleading.”) Accordingly, we conclude the trial court
did not abuse its discretion when it sustained defense counsel’s objections to the statements at
issue during plaintiff’s closing argument. See Lounsbury v. Yorro, 124 Ill. App. 3d 745, 749
(1984) (finding the trial court did not err in sustaining an objection to comment in plaintiff’s
counsel’s closing argument regarding an inapplicable standard of proof).
¶ 51 CONCLUSION
20
1-14-3605
¶ 52 For the reasons stated, the judgment of the circuit court of Cook County is affirmed.
¶ 53 Affirmed.
21