Kotvan v. Kirk

747 N.E.2d 1045, 321 Ill. App. 3d 733, 254 Ill. Dec. 633
CourtAppellate Court of Illinois
DecidedMarch 30, 2001
Docket1-99-0046
StatusPublished
Cited by26 cases

This text of 747 N.E.2d 1045 (Kotvan v. Kirk) 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
Kotvan v. Kirk, 747 N.E.2d 1045, 321 Ill. App. 3d 733, 254 Ill. Dec. 633 (Ill. Ct. App. 2001).

Opinion

JUSTICE COUSINS

delivered the opinion of the court:

Plaintiff, Millie Kotvan, brought this action for medical negligence against defendants, Kent Kirk, an ophthalmologist, and Kirk Eye Center (KEC). Plaintiff alleged that Dr. Kirk failed to timely diagnose and treat an infection that plaintiff developed after cataract surgery. The jury returned a verdict in favor of the defendants. The trial court denied plaintiffs posttrial motion.

On appeal, plaintiff contends that: (1) the jury’s verdict was against the manifest weight of the evidence; (2) the trial court erred by finding that the defense expert, Dr. Rubenstein, was qualified to testify regarding plaintiffs eye infection; (3) the trial court erred by barring testimony concerning plaintiffs blood tests as undisclosed opinions in violation of discovery Rule 213 (134 111. 2d R. 213); (4) certain evidentiary rulings misled the jury and prejudiced the plaintiff’s case; and (5) the trial court abused its discretion by questioning the venire before it was impaneled.

BACKGROUND

On May 11, 1993, around 8:30 a.m., Dr. Kirk performed cataract surgery on plaintiffs left eye, which involved the implantation of an intraocular lens. The surgery was performed at KEC. Before the operation, plaintiff signed a consent form explaining that cataract surgery may result in loss of vision, reduction of corneal clarity, infection and retinal detachment.

The following morning, May 12, 1993, around 8 a.m., Dr. Kirk saw plaintiff for her first postoperative examination. At this visit, plaintiff reported no pain, nausea or vomiting. Kirk examined plaintiffs eye with a slit lamp and checked her retina and blood vessels in the back of her eye. Plaintiffs visual acuity at that time measured 20/60, but her intraocular pressure (IOP) was 38, with 10 to 21 being the normal range. Kirk performed a paracentesis tap to lower the IOP To do this, Kirk pressed a needle next to the cataract surgery incision on the cornea, releasing fluid out of the eye. Plaintiffs IOP was subsequently reduced to four.

After the follow-up exam, plaintiff vomited in the waiting room as she waited for the KEC van to take her home. Her sister, Nicholina Cantalupo, was with her. Plaintiff told a KEC technician, Kathleen Ernst (now known as Kathleen Ernst Zver), that she felt fine and left with her sister. Plaintiff vomited again in the van on the way home. Plaintiffs sister, Nicholina, called KEC several times throughout the day to report plaintiffs condition.

According to Nicholina, she reported repeated nausea, vomiting, pinching and burning, eye pain and ultimately loss of vision by 3 p.m. Plaintiffs son, Donald Kotvan, also testified that he told a KEC employee that plaintiff was experiencing eye pain and had lost vision in her eye. On the other hand, KEC technician Ms. Ernst only documented, “Millie vomited again. No eye pain, slight pinching and burning” in plaintiffs chart. Nurse Mary McLeod also took several calls concerning plaintiff and testified that she did not recall receiving complaints of any eye pain or loss of vision. Both Ms. Ernst and nurse McLeod testified that they informed Dr. Kirk after each call.

A KEC employee allegedly instructed Nicholina to contact plaintiffs family physician, Dr. Popper, to reduce the vomiting. Dr. Richard Mattis, an associate of Dr. Popper, prescribed an anti-emetic over the phone to stop her vomiting. Plaintiff continued to vomit despite the medication so Dr. Mattis instructed Nicholina to take plaintiff to the emergency room. Nicholina informed KEC that she was taking plaintiff to Gottlieb Hospital. Nurse McLeod testified that Dr. Kirk stated that he wanted to speak to the emergency room physician when plaintiff arrived at the hospital, and she contacted the charge nurse at Gottlieb Hospital and informed them of Dr. Kirk’s request.

Plaintiff checked into Gottlieb Hospital’s emergency room at 4:40 p.m on May 12, 1993. Dr. Viglione saw plaintiff 10 minutes later and was aware that plaintiff had had eye surgery from a nurse’s note in the chart. He examined plaintiffs left eye with a penlight and noted that it was red and the pupil was reactive. Dr. Viglione testified that neither plaintiff nor any of her family members told him that plaintiff could not see out of her left eye or that she had pain in that eye. Dr. Viglione diagnosed plaintiff with gastroenteritis and did not believe there was anything wrong with plaintiffs left eye. Dr. Viglione called Dr. Kirk around 5:10 p.m. and informed him of the results of his exam. Dr. Viglione then admitted plaintiff as an in-patient out of concern for her vomiting and possible dehydration. The next morning, on May 13 around 8 a.m., Dr. Kirk saw plaintiff in the hospital. At 8:30 a.m. Dr. Kirk examined plaintiff and noticed hypopyon, a layering of white blood cells in the eye, and corneal haze. Dr. Kirk diagnosed infectious endophthalmitis (IE) in her left eye. Dr. Kirk contacted Dr. Kenneth Resnick, a retinal specialist, sometime between 8:45 to 9 a.m. Dr. Resnick arranged for plaintiffs surgery. Around 11 a.m. he ordered a cardiology consult. Plaintiffs EKG was interpreted at 11:18 a.m. and showed signs of a possible previous heart attack. Plaintiff could not be cleared for surgery without approval of a cardiologist or internist. Dr. Popper, plaintiffs family physician, consulted with Dr. Resnick about plaintiffs EKG around 12:45 p.m. As a result, plaintiff was cleared for surgery. At 2:25 p.m. Dr. Resnick ordered a chest X ray. A report interpreting the film was dictated around 3:24 p.m. The report indicated that plaintiffs heart was borderline in size, with no demonstrable active pulmonary infiltrates or congestive changes.

Dr. Resnick operated on plaintiffs left eye shortly after 5 p.m. Six days later, plaintiff was discharged. She was then treated on an outpatient basis by Dr. Resnick, Dr. Joel Sugar and Dr. John Fournier, but her sight could not be saved. Plaintiffs doctors agree that her left eye will probably have to be enucleated.

At trial, Dr. Kirk testified that he is a board-certified ophthalmologist who performs approximately 500 cataract surgeries per year. Dr. Kirk stated that pressure in the eye is commonly elevated after cataract surgery because one of the substances used during surgery, viscoelastic, may block the outflow channel of the eye, temporarily elevating the IOE Dr. Kirk explained that it was unlikely that a paracentesis tap to relieve IOP would cause bacteria to enter the eye because the physician inserts no instruments into the eye. Dr. Kirk testified that after the paracentesis tap, he found plaintiffs wound to be structurally intact and sealed. Dr. Kirk also examined plaintiffs eye with an indirect ophthalmoscope and did not notice any blood cells in the anterior chamber of her eye, an early symptom of IE.

Dr. Kirk further testified that he was aware that plaintiff vomited in his waiting room but did not reexamine her because he believed it was related to the paracentesis or elevated IOE He stated that vomiting can ensue after an elevated IOE Although plaintiff continued to vomit throughout the day, Dr. Kirk did not reexamine her because there were no reports of eye problems and Dr. Kirk believed plaintiffs condition was gastronomic and not eye-related. He stated that this belief was further confirmed by the emergency physician, Dr. Viglione, who never told Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
747 N.E.2d 1045, 321 Ill. App. 3d 733, 254 Ill. Dec. 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kotvan-v-kirk-illappct-2001.