Lovell v. Sarah Bush Lincoln Health Center

931 N.E.2d 246, 397 Ill. App. 3d 890, 341 Ill. Dec. 638, 2010 Ill. App. LEXIS 13
CourtAppellate Court of Illinois
DecidedJanuary 12, 2010
Docket4-09-0249
StatusPublished
Cited by12 cases

This text of 931 N.E.2d 246 (Lovell v. Sarah Bush Lincoln Health Center) 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
Lovell v. Sarah Bush Lincoln Health Center, 931 N.E.2d 246, 397 Ill. App. 3d 890, 341 Ill. Dec. 638, 2010 Ill. App. LEXIS 13 (Ill. Ct. App. 2010).

Opinions

JUSTICE STEIGMANN

delivered the opinion of the court:

In June 2005, plaintiff, Clinton Dean Lovell, sued defendant, Sarah Bush Lincoln Health Center (Health Center), for medical malpractice, claiming that the Health Center’s negligence following his August 2003 surgery caused him severe and permanent injury. Following a September 2008 trial, a jury returned a verdict in Lovell’s favor and awarded him $2,378,258.

The Health Center appeals, arguing that (1) it is entitled to a new trial because of Lovell’s argumentative and prejudicial comments during his opening statement and (2) the trial court abused its discretion by (a) denying its motion for a mistrial based on Lovell’s improper closing argument and (b) allowing Lovell to introduce evidence regarding certain medical literature related to its standard of care after the Health Center had stipulated that it breached that standard. Because we (1) conclude that the Health Center forfeited any challenge to Lovell’s opening statement and (2) disagree that the court abused its discretion, we affirm.

I. BACKGROUND

A. The Pertinent Portion of Lovell’s Opening Statement

At the start of Lovell’s opening statement—which we note comprised 27 pages of the record—his counsel stated, in pertinent part, the following:

“Mistakes matter. Negligence matters. On August 16, 2003, a [Health Center] nurse disregarded a doctor’s order that caused devastating and grotesque injury to *** Lovell.
In this case, [the Health Center] has admitted negligence. They have admitted that they committed medical malpractice. So why are we here? We’re here today because rather than taking *** responsibility for their actions, they are going to tell you that mistakes don’t matter. That negligence doesn’t matter. That bad things just coincidentally happen to good people at the exact time malpractice occurs.”

B. The Evidence Presented at Trial

The evidence presented at the September 2008 trial, which consisted, in pertinent part, of testimony from (1) Lovell, (2) an emergency room physician, (3) Lovell’s urologist, (4) a certified nursing assistant (CNA), and (5) various medical experts, showed the following.

In July 2003, Lovell was diagnosed with prostate cancer. On August 11, 2003, Lovell underwent a “radical retropubic prostatectomy” at the Health Center to remove his prostate. As a result of the prostatectomy, a “Foley catheter” was used to help Lovell urinate. On August 15, 2003, Lovell returned to one of the two urologists who had performed his prostatectomy, complaining of “a bloated, constipated feeling.” The urologist examined Lovell and noted that (1) he did not have nausea, infection, or a fever; (2) he had normal bowel sounds; (3) he had regained normal bowel movements; and (4) the urine in his catheter bag was clear. The urologist opined that Lovell was proceeding through “a normal course of healing.”

The next day, Lovell went to the Health Center’s emergency room because his condition had not improved. The emergency room physician initially diagnosed Lovell with a “postoperative ileus,” which the physician explained is a condition in which the bowel does not have its normal rhythmic pulsating muscular function to propel liquid and food in one direction. A later urinalysis revealed that Lovell had a significant urinary-tract infection, which the physician opined could have originated from Lovell’s catheter. The physician explained Lovell’s examination results did not indicate that he was suffering from a postoperative fistula, which is an abnormal opening formed by disease or injury leading from one cavity to another (such as an opening between the rectum and bladder). That same day, the physician admitted Lovell to the Health Center.

A family physician later examined Lovell and wrote the following order in his hospital chart: “Fleets enema—if okay with Dr. Rives [(who was Lovell’s urologist)].” Shortly thereafter, a nurse—who had not obtained the required approval from Dr. Rives—ordered a CNA to give Lovell a tap-water enema. After administering a “tiny amount” of water, the CNA noticed it leaking into Lovell’s catheter bag, which was abnormal. The CNA reported the problem and then retrieved Lovell’s chart to document the event and noticed the family physician’s order that giving the Fleets enema was conditioned upon Dr. Rives’ approval.

After being informed by a nurse of the enema incident, Dr. Rives later determined that Lovell had a fistula, which he explained had occurred between his rectum and his bladder. Dr. Rives opined that to a reasonable degree of medical certainty, the enema the Health Center administered to Lovell—which he would not have approved—caused the fistula. In particular, the urologist stated the following:

“The rectum is only a few millimeters thick, and after surgery, it certainly is more compromised than it would be before the surgery. The *** area that we closed with those stitches, is laying right on top of that thin rectum. I feel this fistula occurred either from one of two mechanisms. Either the pressure of giving that liquid, just the increased pressure of inflating the rectum caused the leakage to come through at that point, or the enema tip directly compromised the rectum and opened up the rectum into the freshly sutured area.”

In an unsuccessful attempt to determine if the passage of time would heal the fistula, Lovell underwent the following medical procedures: (1) nutrition supplied intravenously for approximately two weeks following the enema; (2) a September 2003 colostomy, which diverted his stool from encountering the fistula; and (3) a January 2004 operation to implement a bladder catheter, which diverted his urine directly from his bladder through his abdominal wall and into a catheter bag to avoid the still unhealed fistula. In April 2004, Lovell underwent surgery to repair the fistula. In July 2004, Lovell’s colostomy was reversed. In October 2004, Lovell had surgery to correct his urinary incontinence by implanting an artificial sphincter in his scrotum.

Lovell explained to the jury the procedure that he needed to follow to urinate after the artificial sphincter was implanted. Specifically, he would (1) drop his pants, (2) sit on the commode, where he could spread his legs, and (3) locate and press the releasing bulb several times on the artificial sphincter. The bulb would release an internal pressure cuff—that was wrapped around his urethra—which allowed him to urinate. Lovell commented that because the artificial sphincter would fail about twice a year, he continually maintained a second set of clothes. He also explained that he had to wear diapers—which he occasionally had to change up to three times a day-r-because the artificial sphincter would occasionally leak if he coughed or placed pressure on his stomach by bending over.

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Lovell v. Sarah Bush Lincoln Health Center
931 N.E.2d 246 (Appellate Court of Illinois, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
931 N.E.2d 246, 397 Ill. App. 3d 890, 341 Ill. Dec. 638, 2010 Ill. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lovell-v-sarah-bush-lincoln-health-center-illappct-2010.