Cwiertnia v. Zaborowski

549 N.E.2d 655, 192 Ill. App. 3d 841, 140 Ill. Dec. 4, 1989 Ill. App. LEXIS 1935
CourtAppellate Court of Illinois
DecidedDecember 20, 1989
Docket1-88-2261
StatusPublished
Cited by7 cases

This text of 549 N.E.2d 655 (Cwiertnia v. Zaborowski) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cwiertnia v. Zaborowski, 549 N.E.2d 655, 192 Ill. App. 3d 841, 140 Ill. Dec. 4, 1989 Ill. App. LEXIS 1935 (Ill. Ct. App. 1989).

Opinion

JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Loretta Cwiertnia, administratix of the estate of Ivar Hjelmgren, alleged in her medical malpractice complaint that defendant Dr. John Zaborowski was negligent in caring for Hjelmgren because he did not diagnose Hjelmgren’s condition. She appeals from the order granting Dr. Zaborowski’s motion for summary judgment.

Plaintiff’s first amended complaint alleged that on August 25, 1982, Hjelmgren was admitted as a patient to Ravenswood Hospital. Dr. Zaborowski was alleged to have breached his duty by negligently failing to diagnose decedent’s condition of bilateral pulmonary embolisms and by negligently failing to perform tests which would have divulged the embolisms. Hjelmgren allegedly suffered from massive bilateral pulmonary embolisms which resulted in his death in the hospital on August 29,1982.

Dr. Zaborowski moved for summary judgment on the basis that his failure to note in the hospital chart that he considered the diagnosis of pulmonary embolism had no effect on the care rendered to Hjelmgren and was not the proximate cause of the injury, because Drs. Lloyd Callaway, Jr., and Neil Kramer had discussed the possibility of pulmonary embolism. Plaintiff argued in her response to the motion that whether Drs. Callaway and Kramer discussed the possibility of pulmonary embolism was a question of fact, because their consideration of pulmonary embolism was not reflected in the medical records. Dr. Zaborowski did not dispute this lack of evidence in the medical records.

Plaintiff’s expert Dr. Leonard Braudo testified at his deposition that Dr. Zaborowski did not deviate from the standard of care and that the medical chart entries indicated that Dr. Zaborowski took orders from his superiors.

Dr. Zaborowski testified at his deposition that he began his residency in internal medicine at Ravenswood Hospital in July 1982. He took Hjelmgren’s history upon his admittance to the hospital, and Hjelmgren informed him that he had deep vein thrombosis in 1973 but Dr. Zaborowski did not recall being informed of a history of pulmonary embolism. The nursing admission assessment indicated pulmonary embolism in 1967 but Dr. Zaborowski did not specifically recall reviewing it, although he usually looked at all the nursing report sheets. Dr. Zaborowski recalled speaking with Dr. Callaway, Hjelmgren’s attending physician, only at the time of Hjelmgren’s admission. Dr. Zaborowski related his findings to Dr. Kramer, who was a consulting physician.

Dr. Zaborowski further testified that he rendered diagnoses in conjunction with his superiors, which included a second-year resident, the attending physician, the consulting physicians, and the cardiologist in charge of the coronary care unit. As a resident he was qualified to examine patients and, under the supervision of other physicians, to write histories and physical examination findings and to write and sign orders. He was not qualified to do anything independently. He could render an opinion or impression that an individual suffered from pulmonary embolism based on clinical symptoms but he would have to discuss it with his superiors.

Dr. Lloyd Callaway Jr., testified at his deposition that he was board certified in the practice of family medicine. One of his associates admitted Hjelmgren into the hospital; Dr. Callaway was the attending physician. He was aware his patient had a history of pulmonary embolism. Dr. Callaway talked to the director of the cardiac care unit, the residents involved in the case, and Dr. Kramer, a cardiologist, whom he brought in as a consultant. He testified the diagnostic possibility of pulmonary embolism was discussed. He did not recall specifically when the conversation took place and who was present, and the conversation was not noted in the hospital records. He did not specifically remember discussing pulmonary embolism with Dr. Zaborowski. Neither he nor Dr. Zaborowski suggested that diagnostic measures be taken to rule out pulmonary embolism, and he stated that, in fact, pulmonary embolism was dismissed on the basis of lack of any clinical evidence.

Dr. Neil Kramer, who was certified in internal medicine and in cardiology, testified at his deposition that a pulmonary embolism is a blood clot that migrates from one part of the circulation to another. He was aware that Hjelmgren had a history of pulmonary embolism, and the possibility of this diagnosis was considered. He spoke to Dr. Callaway about pulmonary embolism, and they thought that it was a very remote possibility based on the fact that Hjelmgren had none of the clinical findings of a pulmonary embolism. He read Dr. Zaborowski’s notes and may have spoken to him but did not recall any specific date or discussing Hjelmgren’s treatment with Dr. Zaborowski.

Dr. David W. Cugell, whose subspeciality was pulmonary medicine, testified at his deposition that he had been hired as an expert by plaintiff. He saw nothing in the hospital record indicating that pulmonary embolism was considered, and he was puzzled by this absence. He also was astonished that Drs. Kramer and Callaway were surprised at the postmortem finding of pulmonary embolism after discussing its possibility.

Based upon Dr. Zaborowski’s statements at his deposition that he had no independent status and had a training position, Dr. Cugell did not think it appropriate to ascribe any responsibilities to him. In general, resident physicians do not have direct patient care responsibilities but care for patients under the direction of and responsibility of a more senior person. But according to Dr. Cugell, Dr. Zaborowski’s prior training and his status as a resident, even though he was only in the first month of his residency, should have created an “attitude of concern and suspicion” for pulmonary embolism that he apparently did not express. Dr. Zaborowski’s duty would have been at least to have indicated in the record that he considered the diagnosis of pulmonary embolism in order to bring it to the attention of his superiors. It would have been appropriate for Dr. Zaborowski to have discussed the diagnosis with the attending physicians.

Dr. Cugell also testified that if Dr. Zaborowski had indicated pulmonary embolism in the record and if Dr. Callaway and/or Dr. Kramer considered this possible diagnosis and disagreed with it, then Dr. Zaborowski would have complied "with the applicable standard of care. As Dr. Zaborowski had the junior status of trainee, if in fact Drs. Callaway and Kramer considered pulmonary embolism, then his failure to note in the chart a suspicion or differential diagnosis of pulmonary embolism would have had no effect because clearly Drs. Calla-way and Kramer made patient care decisions. Furthermore, Drs. Callaway and Kramer had no obligation to act on anything that Dr. Zaborowski discussed.

The threshold issue is whether the order included the necessary language of appealability. The order granted summary judgment in favor of only one defendant and therefore remaining were the claims against the other defendants. The order in the instant case stated that it was “final and appealable, the court finding no just reason for delay of enforcement therefrom.”

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Bluebook (online)
549 N.E.2d 655, 192 Ill. App. 3d 841, 140 Ill. Dec. 4, 1989 Ill. App. LEXIS 1935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cwiertnia-v-zaborowski-illappct-1989.