Pavnica v. Veguilla

No. 3--09--0065
Filed April 28, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
LEONARD PAVNICA and PATRICIA ) Appeal from the Circuit Court
PAVNICA, ) of the 12th Judicial Circuit
) Will County, Illinois
Plaintiffs-Appellants, )
)
v. ) No. 05--L--572
)
EDWIN VEGUILLA, and ANDREW )
ZWOLSKI, Individually and as )
Agents, Servants and/or )
Employees of PRAIRIE )
EMERGENCY SERVICES, S.C., a )
Corporation, and PRAIRIE )
EMERGENCY SERVICES, S.C., a )
Corporation, )
) Honorable Susan T. O'Leary,
Defendants-Appellees, ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
Plaintiffs, Leonard and Patricia Pavnica, brought this
medical malpractice and loss of consortium action against defen-
dants Edwin Veguilla, M.D., Andrew Zwolski, M.D., and Prairie
Emergency Services, S.C. Following a trial in the circuit court
of Will County, a jury returned a verdict in defendants' favor.
Plaintiffs appeal, arguing that the trial court erred in denying
their posttrial motion. In that motion, they argued they were
entitled to a new trial based on an erroneous ruling on their
motion in limine that allowed defendants to testify to their
military service. They further requested that a judgment be
entered in their favor, claiming the jury's verdict was "wholly
unwarranted, arbitrary, unreasonable, and was against the mani-
fest weight of the evidence." We affirm.
FACTS
In October of 2003, Leonard had a pancreas and kidney
transplant. Leonard was a diabetic and knew the importance of
checking his feet for cuts and injuries. As a result of the
transplant, Leonard was also placed on immunosuppressive medica-
tion which he knew gave him more reason to be concerned about
minor injuries.
On December 19, 2003, Leonard stubbed his toe on a piece of
furniture in his home and believed that he may have broken it.
From watching the Discovery channel, Leonard knew a technique
that involved taping his injured toe to the next toe to help the
healing process.
After taping his toes together, Leonard felt that his toe
was not healing properly, so he sought medical assistance. He
attempted to see his regular physician, Dr. Deborah Freeman, but
she was unavailable until January 2 due to the Christmas holiday
season. Dr. Freeman's office instructed Leonard to go to the
emergency room so he proceeded to the emergency room at St.
2
Joseph Provena in Joliet on December 22, 2003. Dr. Veguilla
treated plaintiff in the emergency room.
Leonard testified that Dr. Veguilla diagnosed cellulitis/
lymphangitis. Leonard stated that Dr. Veguilla drew a red line
on Leonard's leg below the knee and advised him that if the
redness went above that line to come back to the emergency room
or immediately follow up with his physician. Dr. Veguilla also
prescribed Levaquin, an oral antibiotic, and told Leonard to make
a follow-up appointment with Dr. Freeman to have his foot re-
checked.
Eight days later, on December 30, Leonard returned to the
emergency room and was seen by Dr. Zwolski. Leonard returned to
the emergency room because he felt the medication was not working
and his infection seemed to be getting worse. Dr. Zwolski
ordered a battery of tests. This was done, Leonard believed,
because Dr. Zwolski suspected a bone infection. After the series
of tests that included a blood test and X-rays, Dr. Zwolski
concluded the examination and instructed Leonard to follow up
with his physician and continue taking the Levaquin.
Leonard testified that he was not admitted to the hospital
following his second emergency room visit and no additional
antibiotics were added to his course of treatment. He stated
that, while in the emergency room, Dr. Zwolski did contact Dr.
Freeman to make an appointment for Leonard upon her return.
3
Leonard went to see Dr. Freeman on January 2. Dr. Freeman
examined the foot and the infected area and, believing that there
was anaerobic infection, admitted plaintiff to the hospital.
Leonard stated that he was told the infection looked gangrenous.
At the hospital, Leonard was placed on intravenous antibiotics
and Dr. Freeman requested an infectious disease consult. Due to
the possible consequences of any rejection of his transplants,
Leonard was transported to Northwestern Memorial Hospital, where
he came under the care of the transplant team that performed his
transplants. Leonard testified that the progression of the
gangrene became so serious that an amputation of his toes was
necessary. An orthopedic surgeon performed the amputation of his
toes; eventually another operation was performed to remove a
portion of his forefoot.
Plaintiff argued at trial that the emergency room physicians
violated the standard of care by failing to place him on anaero-
bic antibiotics following his emergency room visits. Defendants
argued that their choice of the antibiotic regimen was proper and
appropriate. Furthermore, defendants asserted that Leonard's
condition had improved from the first to the second emergency
room visit and, therefore, no change was needed to his antibiotic
regimen.
Dr. Freeman testified that if she had known that Leonard had
previously been to the emergency room, she would have admitted
4
him to the hospital after talking to Dr. Zwolski during Leonard's
second visit.
Dr. Segreti, plaintiffs' retained infectious disease expert,
testified that had the antibiotics been changed to include
anaerobic coverage, Leonard would not have suffered the amputa-
tion of his toes or foot. Dr. Segreti further testified that the
only reason Leonard underwent an amputation was due to the
infection. He came to this conclusion given the blood flow
studies performed at St. Joseph Provena that indicated Leonard
had very good blood flow to his lower extremities, especially in
the foot and toes. Dr. Segreti also specifically stated that he
was not testifying to the standard of care of emergency room
physicians.
Plaintiffs called Dr. Michael Rosenberg, who testified that
Dr. Veguilla violated the proper standard of care for emergency
room physicians by failing to admit Leonard during his first
visit. Dr. Rosenberg also testified that it was a violation of
the standard of care for Dr. Zwolski not to admit Leonard on his
second visit. Dr. Rosenberg's opinions were based on the status
of the patient as a diabetic, the patient's recent transplant
history, and the fact that Leonard was on antirejection medica-
tion. Dr. Rosenberg noted those facts put Leonard at severe risk
of infection and rejection.
Dr. Rosenberg further testified that Dr. Veguilla should
5
have taken blood cultures and placed Leonard on an antibiotic
that would have covered both aerobic and anaerobic bacteria. Dr.
Rosenberg testified that Leonard was not covered for anaerobic
bacteria that can develop with injuries of this type to diabetic
patients in very tight, closed-off spaces, especially between the
webbing of the toes. Dr. Rosenberg opined that the emergency
room physicians' treatment of Leonard violated the applicable
standard of care.
Defendant Dr. Veguilla testified that he examined Leonard on
December 22, 2003, and took a medical history. The physical
examination revealed a relatively small area of minimal swelling
on the right foot. There was evidence of infection, as mani-
fested by erythema, induration, warmth and mild tenderness. The
affected area was about the size of a quarter, or 50-cent piece.
The medical history disclosed that Leonard was a diabetic, as
well as a multiple-transplant patient. Leonard was taking
immunosuppressant medications secondary to the kidney and pan-
creas transplants.
Dr. Veguilla diagnosed Leonard with cellulitis and
lymphangitis. The absence of a note in the medical records
measuring the length of the red streak (the lymphangitis) indi-
cates that the streaking did not extend to the mid-foot. He
explained that his custom and practice is to document the length
of the streak, if clinically significant, but not the length of
6
smaller streaks that "don't really go anywhere."
Dr. Veguilla ordered an injection of Ancef, an antibiotic,
and prescribed Levaquin, another antibiotic. Levaquin is a broad
spectrum antibiotic, covering a large number of bacteria. In
oral form, it provides coverage as comprehensive as intravenous
administration. It does not cover anaerobic bacteria.
Before discharging Leonard from the emergency room, Dr.
Veguilla discussed with him the importance of getting follow-up
care with his own treating physician. Dr. Veguilla recommended
that Leonard see his endocrinologist, Dr. Freeman, within two
days after discharge from the emergency room. Dr. Veguilla also
told Leonard that changes in the condition or appearance of his
foot would indicate that he needed to see a doctor sooner.
Finally, Dr. Veguilla told Leonard that if he could not get in to
see Dr. Freeman, he could return to the emergency room for
further evaluation and treatment.
Dr. Zwolski testified that he treated Leonard during his
second visit to the emergency room on December 30, 2003. Leonard
reported that the pain was better, he had no fever, and the red
streaks were no longer present in his foot. Dr. Zwolski noted
there was pus draining from the wound, but that this was not
necessarily a sign that the infection was worsening.
Dr. Zwolski ordered blood work and an X-ray that ultimately
showed a fracture on the fifth toe of the right foot. The blood
7
work included a complete blood count, blood cultures, and a
sedimentation rate.
Dr. Zwolski testified that the blood tests showed no indica-
tion of an anaerobic infection. Additionally, Leonard's foot did
not have the foul odor characteristic of an anaerobic infection.
Had there been such an odor, Dr. Zwolski would have noted it in
the medical record. Dr. Zwolski opined that Leonard had improved
from his first visit to the emergency room. Given Leonard's
improvement, Dr. Zwolski did not believe there was an indication
for an infectious disease consultation or admission to the
hospital. Furthermore, he believed there was no indication to
change the antibiotic as it appeared Leonard was benefitting from
the Levaquin.
Nevertheless, before discharging Leonard, Dr. Zwolski
contacted Dr. Freeman. Per his custom and practice, Dr. Zwolski
stated he would have advised Dr. Freeman that Leonard had been in
the emergency room previously and that Leonard had been taking
Levaquin for seven days. While he believed that Leonard was
improving, he still informed Leonard to follow up with Dr.
Freeman given his diabetes and transplant history.
Defendants called Dr. Leslie Zun as a standard of care
expert on their behalf. Dr. Zun opined that, when seen in the
emergency room, Leonard had routine cellulitis and lymphangitis.
Leonard's status as a diabetic and transplant patient did not
8
require that this common problem be treated any differently than
it would be for any other patient. Had the problem been directly
related to his transplant, the treatment might have been differ-
ent. Leonard needed close follow-up care due to his history, but
otherwise treatment for his cellulitis and lymphangitis did not
require specialized care and treatment.
Dr. Zun testified that the choice of Levaquin to treat
Leonard's infection was within the standard of care. Levaquin is
a broad spectrum antibiotic that treats numerous common infec-
tions and has very good coverage in oral form. Dr. Zun agreed
that Levaquin does not cover anaerobic infection, but such
infections are not commonly seen. Dr. Veguilla was not required
to prescribe an antibiotic for an anaerobic infection; physicians
must prescribe antibiotics based on what they believe is the most
likely organism present. Those organisms include staph or strep,
which are both covered by Levaquin. It was not appropriate to
prophylactically prescribe for every bacteria that could poten-
tially cause an infection. That is why patients are to follow up
with primary care physicians, as it gives the physicians a chance
to determine whether the infection is responding and to change
the antibiotic if it is not.
Dr. Zun further testified that it did not violate the
standard of care during Leonard's first visit to discharge him
without ordering a complete blood count or an X-ray as neither is
9
indicated for routine cellulitis. Even if a complete blood count
and X-ray had been ordered during the first emergency room visit
and both revealed the same results as the tests during the second
emergency room visit, those results would not have changed the
course of action prescribed by Dr. Veguilla.
Dr. Zun opined that hospitalization was not required follow-
ing either emergency room visit as the records indicated that the
first visit involved a straightforward cellulitis and
lymphangitis case and, by the second visit, Leonard's condition
had improved as evinced by the disappearance of the red streaks
and the lack of fever. Furthermore, the pus draining from the
wound was an indication that the infection was actually improv-
ing, not getting worse. After pus drains, an infection usually
improves so the appearance of pus was not a sign that the antibi-
otics should have been changed. The slightly elevated white
blood cell count indicated that Leonard's body could mount an
appropriate response to the infection, given the fact that his
body was producing white blood cells to respond to the infection.
In Dr. Zun's opinion, none of the test results suggested that the
antibiotics should have been changed.
Finally, Dr. Zun testified that it is common for a patient
to present with an improving infection, such as Leonard did on
December 30, 2003, then experience a rapid deterioration thereaf-
ter. Had Leonard presented on December 30 with any of the
10
indications that were present on January 2, 2004 (color of the
toes had changed, with ischemic changes and foul odor), then
admission would have been indicated. However, the medical
records reveal that those symptoms were simply not present during
Leonard's December 30, 2003, visit.
Defendants also called Dr. Fred Zar to testify on their
behalf. Dr. Zar is an infectious disease expert. His testimony
was very similar to Dr. Zun's. He testified that Levaquin was a
proper antibiotic to prescribe to Leonard and that there was no
indication to change that course of treatment. Given Leonard's
symptoms, there was no need for an infectious disease consulta-
tion during either of his emergency room visits. He agreed that
physicians are not to prescribe antibiotics for every infection a
patient may possibly get, but rather are only to prescribe
medications based upon the condition observed.
Dr. Zar opined that the presence of pus on the December 30
visit did not indicate that the infection was worsening but,
rather, that the infection was getting better. Another sign that
the infection was improving on that date, was the fact the
lymphangitis was no longer present. Based on these findings, it
was reasonable for Dr. Zwolski to continue the Levaquin and
conclude that it was adequately covering Leonard's infection.
Dr. Zar opined that a new bacteria, resistant to the Levaquin,
may have entered through the wound opening and caused the rapid
11
deterioration that occurred by January 2, 2004. In his opinion,
Leonard's amputation was due, in part, to vascular disease
resulting from diabetes and not only due to the infection. A
test taken at Northwestern Memorial confirmed that Leonard had
severe small vessel disease. Leonard's small blood vessels had
been damaged from years of diabetes. This inhibited circulation
of his own antibodies, as well as antibiotics. Dr. Zar testified
that once the infection occurred, amputation was virtually
inevitable due to the severe vascular disease.
After trial, the jury returned a verdict for the defendants
and against plaintiffs. The circuit court denied plaintiffs'
posttrial motion for judgment notwithstanding the verdict
(judgement n.o.v.) or, in the alternative, for a new trial. This
timely appeal followed.
ANALYSIS
Plaintiffs argue on appeal that the trial court erred in
denying their posttrial motion. The motion alleged that the
"overwhelming evidence presented during this trial clearly
established that the plaintiffs met their burden of proof and
unequivocally proved [defendants] were negligent." The posttrial
motion further alleged that the trial court erred by denying
their motion in limine and allowing testimony that both defendant
physicians served in the armed services, claiming such testimony
severely prejudiced the plaintiffs.
12
I. Judgment n.o.v.
We review a trial court's ruling on a motion for judgment
notwithstanding the verdict (judgment n.o.v.) de novo. McClure
v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102 (1999). A
judgment n.o.v. should only be entered when all the evidence,
viewed in the light most favorable to the nonmoving party, so
overwhelmingly favors the movant that no contrary verdict could
ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494
(1967).
In an appeal from a jury verdict, a reviewing court may not
reweigh the evidence and substitute its judgment for that of the
jury. Snelson v. Kamm, 204 Ill. 2d 1 (2003). It is within the
jury's province to resolve conflicts in evidence, pass on the
credibility of witnesses, and determine the weight given to
witnesses' testimony. Canopy v. Hentz, 345 Ill. App. 3d 797
(2004).
Plaintiffs argue that the "overwhelming evidence presented
during this trial clearly establishes that the plaintiffs met
their burden of proof and unequivocally proved that Dr. Vegulla
and Dr. Zowlski were negligent in one or more ways." This is so,
plaintiffs conclude, because central to the issue of deviation
from the standard of care was the choice of the antibiotic
Levaquin. Plaintiffs claim that since all four of the parties'
retained experts testified that Levaquin provided no anaerobic
13
coverage, they unequivocally proved defendants violated the
applicable standard of care given Leonard's status as a diabetic
and transplant patient. Therefore, plaintiffs assert, the jury's
verdict to the contrary was against the manifest weight of the
evidence.
Dr. Rosenberg, plaintiffs' emergency room standard of care
expert, testified that defendants violated the applicable stan-
dard of care by not prescribing a broader based antibiotic that
would cover anaerobic bacteria. Dr. Rosenberg further testified
that the emergency room physicians violated the applicable
standard of care by not admitting Leonard to the hospital on
either his first or second visit to the emergency room. This
testimony was clearly contradicted.
Defendants' experts, Drs. Zun and Zar, opined that defen-
dants did nothing wrong in the course of care they prescribed
Leonoard. Dr. Zun, as well as Dr. Rosenburg, testified that the
prescription of Levaquin was appropriate given Leonard's symptoms
which indicated routine cellulitis and lymphangitis. Dr. Zun
stated that failing to admit Leonard to the hospital, or pre-
scribe a broader based antibiotic that would cover anaerobic
bacteria, was not a violation of the standard of care. This was
so for many reasons according to Dr. Zun.
Defense experts testified that physicians are only to treat
the symptoms and conditions presented and only prescribe antibi-
14
otics for the most likely organism present. They stated it is
totally inappropriate to prescribe medications prophylactically
for every bacteria that could possibly cause an infection.
Defendants' experts continued by noting that all indications
pointed to the conclusion that the Levaquin was working. This
was so given Leonard's condition when he presented for the second
time to the emergency room. Leonard's own trial testimony
confirms that the "streaks had gone down" (the lymphangitis) from
the first visit to the second visit. When asked whether there
was a foul smell to his foot when he presented to the emergency
room the second time, plaintiff admitted that "at that time there
wasn't, no." Plaintiff acknowledged that he had no fever and
that there was no additional redness in his foot when he pre-
sented to the emergency the second time.
Dr. Zun testified that those facts coupled with the blood
test results and the draining pus (being a sign of healing) lead
to the conclusion that the Levaquin was working. Therefore, in
Dr. Zun's opinion, continuing a course of treatment that appeared
to be working did not violate the standard of care.
Moreover, plaintiffs' infectious disease expert, Dr.
Segreti, testified that in his opinion, the only reason Leonard's
foot was partially amputated was due to the infection. This,
too, was contradicted. Dr. Zar, defendant's infectious disease
expert, testified that the cause of the amputation was, in part,
15
due to Leonard's vascular disease problems associated with
diabetes. Dr. Zar noted that the Northwestern Memorial records
confirmed that Leonard had severe small vessel disease. This
inhibited circulation of plaintiff's own antibodies as well as
the antibiotics. Dr. Zar concluded that once the infection
occurred, amputation was virtually inevitable due to the severe
peripheral vascular disease.
Clearly, the evidence does not so overwhelmingly favor the
plaintiffs that the jury verdict cannot stand as only a contrary
conclusion should have been reached. The jury simply resolved
disputed issues in defendants' favor. We find no error in the
trial court's denial of plaintiffs' posttrial motion for judgment
n.o.v.
II. Military Service
A trial court's ruling on a motion in limine addressing the
admission of evidence will not be disturbed on review absent a
clear abuse of discretion. Swick v. Liautaud, 169 Ill. 2d 504,
521, 621 N.E.2d 1238 (1996). An abuse of discretion occurs when
the ruling is arbitrary, fanciful, or unreasonable or when no
reasonable person would take the same view. People v. Illgen,
145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991). The admission of
evidence rests largely within the sound discretion of the trial
court, and its decision will only be reversed when such discre-
tion has been clearly abused. Hunt v Harrison, 303 Ill. App. 3d
16
54, 707 N.E.2d 232 (1999). Plaintiffs claim the trial court
abused that discretion regarding evidence of defendants' military
service as: (1) Dr. Zwolski's deployment to the Iraq war was
subsequent to his treatment of plaintiff; and (2) reference to
the physicians' military service improperly influenced the jury
by invoking "strong views of patriotism for our troops." There-
fore, plaintiffs argue, such references were more prejudicial
than probative.
In Jones v. Rallos, the court held that "'when a physician
sued for malpractice testifies as an expert, evidence as to his
age, practice, and like matters relating to his qualifications as
an expert is admissible.'" Jones v. Rallos, 384 Ill. App. 3d 73,
90, 890 N.E.2d 1190, 1205-06 (2008), citing Rockwood v. Singh,
258 Ill. App. 3d 555, 557, 630 N.E.2d 873, 875 (1993). As such,
the Jones court held it was not error to allow into evidence the
fact that the defendant physician failed a board certification
exam some 20 years before treating the patient. Jones, 258 Ill.
App. 3d at 90.
Dr. Zwolski was deployed to Iraq to serve as a physician.
Dr. Veguilla, while discussing his collegiate path from Lehigh
University to Monmouth College, mentioned that between schools he
"signed up for the Marine Corps." Then, "after [his] training in
the Marine Corps," he continued college. Both defendants testi-
fied as experts on their own behalf claiming, in their expert
17
medical opinion given all their training and education, they did
nothing wrong. Certainly Dr. Zwolski's service in Iraq as a
physician involved matters relating to his qualification as an
expert. The fact that Dr. Zwolski's service took place after
treating Leonard is of no consequence. All of Dr. Zwolski's
medical experience is relevant to his qualification as an expert
at trial. Moreover, we cannot say the references to either Dr.
Veguilla's time in the military or Dr. Zwolski's service in Iraq
was more prejudicial than probative.
During opening statements, defense counsel briefly mentioned
Dr. Veguilla's military service and the fact that Dr. Zwolski was
a member of the United States Navy Reserves. During defendants'
direct testimony, each doctor was allowed to testify to the
nature and timing of their military service and where it fell in
relation to other professional and educational training. Then,
in closing, defense counsel briefly mentioned Dr. Zwolski's
treatment of soldiers in Iraq, but did not mention Dr. Veguilla's
service whatsoever. The evidence did no more than give the
jurors some background on these defendants. The evidence was
relevant as to Dr. Zwolski's credentials as an expert physician.
While less relevant as to Dr. Veguilla, any error was harmless.
No undue attention was paid to Dr. Veguilla's military service.
We find it was not an abuse of discretion to deny plain-
tiffs' motion in limine and allow references to defendants'
18
military service. The trial court did not err in denying plain-
tiffs' posttrial motion for a new trial. Any error as to Dr.
Veguilla's service was harmless.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Will County is affirmed.
Affirmed.
CARTER and LYTTON, JJ., concur.
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