Kreisman Law Offices Professional Corporation
The Illinois Appellate Court affirmed a jury’s $7.9 million general verdict against a physician, Dr. Yasser Alhaj-Hussein, who did a celiac plexus block procedure on one of his patients, Kathy Arient. The procedure was performed at Orland Park Surgical Center. After the procedure, Arient experienced numbness in her legs and was taken to St. Joseph’s Hospital in Chicago Heights, Ill., where it was determined that she had experienced a vasospasm resulting in her paraplegia.
About two and a half months later, Arient and her husband, Terry Arient, filed a lawsuit against Dr. Hussein for medical malpractice and loss of consortium. Kathy died on June 9, 2014 of a stroke and Terry was substituted as the executor of Kathy’s estate. The lawsuit was amended to allege wrongful death and survival actions, including the medical negligence count of the lawsuit.
At the jury trial, Arient introduced a motion in limine, seeking to bar the defendants from introducing evidence of or making any reference to Kathy’s history of smoking. Dr. Hussein and his lawyers argued that the smoking habit was a link to being extremely opiate tolerant. In fact, it was argued that Kathy’s smoking habit was a reason Dr. Hussein felt the need to administer a celiac plexus block to relieve her chronic pain. Opiates and implanted pumps had not been effective in controlling her pain. The trial judge granted that motion to exclude smoking.
Dr. Hussein moved in limine to block any testimony or evidence about Dr. Hussein’s credentialing because he was not certified to perform the celiac plexus block at Orland Park Surgical Center since he did not have privileges there. Arient argued that Dr. Hussein should not have been allowed to do the surgery because he didn’t have privileges at that institution. The trial court reserved ruling on that issue.
In opening statements, Arient’s lawyer raised the credentialing issue again over objections by Dr. Hussein’s attorneys. Furthermore, Dr. Stephen Minore, an expert medical witness for Arient, testified that Illinois law requires “that if a doctor practices in the surgery center, they have to have the same or like privileges in an Illinois licensed hospital.”
Dr. Hussein again objected and was overruled. In closing arguments, Arient’s counsel twice stated that Dr. Hussein “didn’t have the right” to perform the procedure based on not having privileges, over objections.
Dr. Hussein appealed the jury’s verdict of $7.9 million arguing that the trial court abused its discretion in permitting evidence and testimony about privileges to perform a celiac plexus block to be heard by the jury and choosing not to give a curative instruction informing the jury that there is no duty put on the physician to obtain privileges prior to performing a surgical procedure like that done here.
Section 6(3)(b) of the Ambulatory Surgical Center Treatment Act does not require that the records of facilities see to it that their physicians receive privileges prior to performing surgeries but does not impose a duty upon the physician.
The Illinois Appellate Court agreed, finding that evidence about whether Dr. Hussein had privileges did not reflect on whether he deviated from the standard of care in treating Kathy, and so it was irrelevant to the issues at trial.
Further, it was commented by the appeals panel that Dr. Minore, as a medical expert, should not have been permitted to interpret state law and that the trial judge compounded its error by permitting his testimony on the subject absent evidence establishing expertise by Dr. Minore in interpreting Illinois law.
The appeals panel also found it was an error by the trial judge in barring evidence about Kathy’s smoking habit. Smoking, it was determined, was a medically relevant issue because of the direct correlation to the case such as in cases of lung cancer.
However, because the jury returned a general verdict and at least one count did not rest on a theory of the case relating either to Kathy’s smoking or Dr. Hussein’s privileges, the appellate court determined that Dr. Hussein was entitled to no relief and affirmed the decision of the trial court.
There was a dissenting opinion that stated that Dr. Hussein was entitled to a new trial, but it was overruled.
Terry Arient, as Executor of the Estate of Kathy Arient, Deceased v. Yasser Alhaj-Hussein, M.D. and Illinois Anesthesia & Pain Associates, S.C., 2017 IL App (1st) 162369.
Kreisman Law Offices has been successfully handling medical malpractice lawsuits, wrongful death cases, Illinois and Cook County jury trials and catastrophic injury cases for individuals, families and loved ones who have been injured, harmed or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Antioch, Palatine, Kenilworth, Evanston, Des Plaines, Park Ridge, Franklin Park, Harvey, Chicago Heights, Barrington, Cicero, Deerfield, Round Lake, Chicago (Wrigleyville, West Loop, Little Italy, Lincoln Square, Lithuanian Plaza, Bronzeville, Bucktown, Canaryville, Edgewater, Jackson Park Highlands), Lemont, Lockport and Western Springs, Ill.
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