Illinois Appellate Court Affirms Defendant-Physician’s Motion for Directed Verdict in Medical Malpractice Case

The Illinois Appellate Court rejected a claim by the plaintiff, Ludgardo R. Castillo, that expert testimony was required only to establish the applicable standard of care. Also, the trial court did not err in indicating to Castillo that she would have to pay money to the defendant to reimburse defense counsel for expenses incurred in attending a California evidence deposition of plaintiff’s expert taken days before the scheduled trial. If plaintiff wanted that expert to appear live at trial: (1) the record reflected that the plaintiff was never formally ordered to pay defendant anything; and (2) the plaintiff failed to show any prejudice by her inability to have expert testimony live.

Lastly, the trial court was in error in allowing the defendant to question the plaintiff’s physician as to whether syphilis could be a source of her pain where the plaintiff was never diagnosed with this condition. Since the error related only to plaintiff’s damages and the jury never considered such evidence as the jury held in favor of the defendant on the issue of liability.

The plaintiff, Ludgardo R. Castillo, appealed from a jury’s verdict in favor of the defendants, Dr. Jeremy Stevens and Center for Athletic Medicine (CAM), on plaintiff’s claim of medical negligence.

On appeal, Castillo argued that the trial court erred in (1) granting defendants’ motion for directed verdict on her informed consent claim, (2) conditioning plaintiff’s calling her expert live at trial on her payment of fees and costs to defendants, (3) allowing defendants to question a witness about whether syphilis could cause plaintiff’s complaints of pain without a definitive diagnosis of syphilis, and (4) precluding plaintiff from cross-examining Dr. Stevens on certain publicly available literature related to the procedure performed on plaintiff. The appellate court affirmed the jury’s verdict in favor of the defendants.

In 2004, following complaints of right knee pain, the plaintiff Castillo was diagnosed with a 17-degree valgus deformity of the right femur, which meant that her femur was misaligned, such that plaintiff was “knock-kneed.”

Castillo’s condition caused an excess amount of pressure on the outside of her knee. At that time, the plaintiff also displayed signs of arthritis in her right knee. To correct the valgus deformity and alleviate plaintiff’s pain, Dr. Stevens, an orthopedic surgeon who practiced with CAM, performed a right distal femoral open wedge osteotomy procedure in which the surgeon cuts part way through the femur to create a wedge opening, allowing the femur to be realigned. Once the proper alignment is achieved, the surgeon secures the femur with hardware and fills the opening with a bone graft to promote healing between the two ends of the femur.

In this surgery Dr. Stevens intended to use a plate to secure plaintiff’s femur. Because the medial cortex, the side of plaintiff’s femur opposite the wedge opening, fractured during the procedure, Dr. Stevens had to switch this plan and instead used a condylar blade plate to secure the two sections of plaintiff’s femur. Dr. Stevens testified at trial that he did not place the condylar blade plate in position parallel to plaintiff’s knee because doing so would have placed her knee in a five-degree valgus position and would not have achieved the goal of taking pressure off plaintiff’s outside knee. Instead, he installed the condylar plate obliquely, so as to achieve the desired degree of correction. Dr. Stevens also testified that at the completion of the procedure, plaintiff’s femur was properly aligned to shift plaintiff’s weight bearing load more to the inside of her knee.

Sometime after the procedure, the plaintiff was diagnosed as having a nonunion of the femur; in other words, the two sections of plaintiff’s femur did not heal together. To correct this condition, Castillo underwent a revision surgery that was completed by Dr. Rajeev Garapati. Dr. Garapati testified in his evidence deposition that when he first saw the plaintiff in 2005, she had a significant deformity in her right leg, i.e., she was now bow-legged on the right. Dr. Garapati testified that he did not know the condition of plaintiff’s leg immediately following the procedure performed by Dr. Stevens, did not know the exact cause of plaintiff’s varus deformity, and the varus position of plaintiff’s knee could have been a result of the nonunion.

He also testified that both nonunion and fractures of the medial cortex are known risks of the procedures performed by Dr. Stevens and can and do occur in the absence of negligence on the part of the surgeon. To correct the varus deformity and nonunion, Dr. Garapati performed a revision surgery on the plaintiff, which included removing the old hardware, placing a new bone graft, realigning the femur, and installing new hardware. Eventually, the plaintiff healed, although she testified she continues to experience pain and functional limitations and is able to work only with special accommodations.

At trial, the plaintiff presented a number of expert physician witnesses who testified that there were deviations from the standard of care including the issue of informed consent. After plaintiff rested, defendants moved for a directed verdict on the issue of informed consent.

Defendants argued that plaintiff failed to present any expert evidence that Dr. Stevens deviated from the relevant standard of care and opinion on informed consent, plaintiff did not present any evidence that she would not have consented to the procedure had all of the risks been properly disclosed, and one of plaintiff’s expert physicians testified that plaintiff’s claimed injuries were caused by the misalignment of the condylar blade plate, not that they were caused by the nonunion or medial cortex fracture.

Dr. Stevens testified that he did in fact inform plaintiff of the risk of non-healing of the bone. He would not, however have advised her of specific complications that might occur during the procedure if they could fix them during the procedure, such as a fracture of the medial cortex. He also testified that he discussed alternative conservative treatments with the plaintiff but that plaintiff advised him that she did not want the pain and functional limitations to progress.

The jury ultimately entered a verdict in favor of the defendants and against the plaintiff. After an unsuccessful motion for a new trial, plaintiff initiated this appeal.

On appeal, the plaintiff also argued that the trial court committed reversible error when it conditioned plaintiff’s calling one of her expert physicians live at trial on the reimbursement of defendants’ cost and fees associated with taking this evidence deposition in California. In the interim, the plaintiff fired her then counsel allowing for the attorney to withdraw and the trial was continued. A new lawyer was engaged. The plaintiff then requested that the court allow for the expert whose evidence deposition was already taken in California be presented live at trial and that the plaintiff would not have to reimburse the defendants for the cost and fees associated with the taking of the evidence deposition which defendants’ lawyers attended in person.

The trial court indicated that it would order some reimbursement to defendants for their fees and costs because the trial court believed that it was prejudicial to defendants to have incurred the costs of the deposition shortly before the previously scheduled trial, only to have plaintiff change attorneys, continue the trial, and then ultimately decide to forego the evidence deposition. Accordingly, the trial court directed defendants to file their fee petition and plaintiff to review the petition and register any objections she might have to the claimed fees and costs. Based on those objections, the trial court would then determine what amount of fees and costs it will allow.

Before moving on to another issue, the plaintiff asked for fees and costs sought by defendants, and defendants responded that the total was $24,981.27. The plaintiff indicated that she did not object to that amount on the basis that it was unreasonable or unnecessary. The trial court indicated again that it was not seeking to impose punitive sanctions or to prevent plaintiff from presenting her case as she saw fit but only to reimburse defendants for their time and expenses and that reimbursement should be made prior to the expert testifying at a trial. No written order was entered at that time. Then on the day before the trial, the plaintiff informed the trial that based on its previous ruling, she would not be calling the expert live at trial.

Finally, the plaintiff argued on appeal that the trial court erred in precluding the plaintiff from cross-examining Dr. Stevens on certain publicly available literature related to the procedure performed on the plaintiff. The appeals panel concluded that plaintiff had forfeited any contention of error with respect to the surgical reference guide. The plaintiff also argued that the general rule barring the use of post-occurrence literature is inapplicable here because she did not intend to use the technique guides to establish a deviation from the standard of care but instead intended to use them to impeach some of Dr. Stevens’s testimony.

The appeals panel in conclusion stated that most of its decisions were based, either explicitly or implicitly, on the strategic choices made by plaintiff’s counsel in the trial court. The court also observed that the plaintiff’s counsel at trial, who was retained very shortly before the trial after the plaintiff suddenly terminated her previous counsel the day before the originally scheduled trial, was significantly constrained by the strategic decisions made by plaintiff’s prior lawyers. More specifically, plaintiff’s trial counsel was constrained by plaintiff’s expert’s testimony disclosed by prior counsel’s decision to take the evidence deposition of this doctor, and the trial evidence disclosed by prior counsel. Thus, although the outcomes of most of the issues in this appeal were dictated by the strategic decisions made by plaintiff’s prior counsel in the trial court, plaintiff’s trial counsel was forced to follow through with those decisions as a result of plaintiff’s sudden dismissal of her prior counsel the day before trial and plaintiff’s retention of trial counsel at the last minute.

For the foregoing reasons, the judgment of the Circuit Court of Cook County was affirmed.

Ludgardo R. Castillo and Richard Castillo v. Jeremy Stevens, M.D. and Center for Athletic Medicine, Ltd., 1-17-2958 (Oct. 22, 2019), Illinois Appellate Court for the First District, Second Division.

Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, orthopedic negligence cases, hospital negligence lawsuits and birth trauma injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Evergreen Park, Highland Park, Glenview, Northbrook, Northfield, New Lenox, Lansing, Lemont, Kenilworth, Naperville, Orland Park, Matteson, Mokena, Lake Zurich, Gurnee, Cary, Crystal Lake, Aurora, Woodstock, Chicago (Lincoln Park, Near West Side, Chinatown, East Side, Lake Calumet, Rogers Park, Lincoln Square, Jefferson Park, Bronzeville), University Park, Country Club Hills, Tinley Park and Long Grove, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.