Pavnica v. Veguilla

Opinion

No. 3--09--0065

Filed April 28, 2010 IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2010

LEONARD PAVNICA and PATRICIA ) Appeal from the Circuit Court PAVNICA, ) of the 12th Judicial Circuit ) Will County, Illinois Plaintiffs-Appellants, ) ) v. ) No. 05--L--572 ) EDWIN VEGUILLA, and ANDREW ) ZWOLSKI, Individually and as ) Agents, Servants and/or ) Employees of PRAIRIE ) EMERGENCY SERVICES, S.C., a ) Corporation, and PRAIRIE ) EMERGENCY SERVICES, S.C., a ) Corporation, ) ) Honorable Susan T. O'Leary, Defendants-Appellees, ) Judge, Presiding.

JUSTICE SCHMIDT delivered the opinion of the court:

Plaintiffs, Leonard and Patricia Pavnica, brought this

medical malpractice and loss of consortium action against defen-

dants Edwin Veguilla, M.D., Andrew Zwolski, M.D., and Prairie

Emergency Services, S.C. Following a trial in the circuit court

of Will County, a jury returned a verdict in defendants' favor.

Plaintiffs appeal, arguing that the trial court erred in denying

their posttrial motion. In that motion, they argued they were entitled to a new trial based on an erroneous ruling on their

motion in limine that allowed defendants to testify to their

military service. They further requested that a judgment be

entered in their favor, claiming the jury's verdict was "wholly

unwarranted, arbitrary, unreasonable, and was against the mani-

fest weight of the evidence." We affirm.

FACTS

In October of 2003, Leonard had a pancreas and kidney transplant. Leonard was a diabetic and knew the importance of

checking his feet for cuts and injuries. As a result of the

transplant, Leonard was also placed on immunosuppressive medica-

tion which he knew gave him more reason to be concerned about

minor injuries.

On December 19, 2003, Leonard stubbed his toe on a piece of

furniture in his home and believed that he may have broken it.

From watching the Discovery channel, Leonard knew a technique

that involved taping his injured toe to the next toe to help the

healing process. After taping his toes together, Leonard felt that his toe

was not healing properly, so he sought medical assistance. He

attempted to see his regular physician, Dr. Deborah Freeman, but

she was unavailable until January 2 due to the Christmas holiday

season. Dr. Freeman's office instructed Leonard to go to the

emergency room so he proceeded to the emergency room at St.

2 Joseph Provena in Joliet on December 22, 2003. Dr. Veguilla

treated plaintiff in the emergency room.

Leonard testified that Dr. Veguilla diagnosed cellulitis/

lymphangitis. Leonard stated that Dr. Veguilla drew a red line

on Leonard's leg below the knee and advised him that if the

redness went above that line to come back to the emergency room

or immediately follow up with his physician. Dr. Veguilla also

prescribed Levaquin, an oral antibiotic, and told Leonard to make a follow-up appointment with Dr. Freeman to have his foot re-

checked.

Eight days later, on December 30, Leonard returned to the

emergency room and was seen by Dr. Zwolski. Leonard returned to

the emergency room because he felt the medication was not working

and his infection seemed to be getting worse. Dr. Zwolski

ordered a battery of tests. This was done, Leonard believed,

because Dr. Zwolski suspected a bone infection. After the series

of tests that included a blood test and X-rays, Dr. Zwolski

concluded the examination and instructed Leonard to follow up with his physician and continue taking the Levaquin.

Leonard testified that he was not admitted to the hospital

following his second emergency room visit and no additional

antibiotics were added to his course of treatment. He stated

that, while in the emergency room, Dr. Zwolski did contact Dr.

Freeman to make an appointment for Leonard upon her return.

3 Leonard went to see Dr. Freeman on January 2. Dr. Freeman

examined the foot and the infected area and, believing that there

was anaerobic infection, admitted plaintiff to the hospital.

Leonard stated that he was told the infection looked gangrenous.

At the hospital, Leonard was placed on intravenous antibiotics

and Dr. Freeman requested an infectious disease consult. Due to

the possible consequences of any rejection of his transplants,

Leonard was transported to Northwestern Memorial Hospital, where he came under the care of the transplant team that performed his

transplants. Leonard testified that the progression of the

gangrene became so serious that an amputation of his toes was

necessary. An orthopedic surgeon performed the amputation of his

toes; eventually another operation was performed to remove a

portion of his forefoot.

Plaintiff argued at trial that the emergency room physicians

violated the standard of care by failing to place him on anaero-

bic antibiotics following his emergency room visits. Defendants

argued that their choice of the antibiotic regimen was proper and appropriate. Furthermore, defendants asserted that Leonard's

condition had improved from the first to the second emergency

room visit and, therefore, no change was needed to his antibiotic

regimen.

Dr. Freeman testified that if she had known that Leonard had

previously been to the emergency room, she would have admitted

4 him to the hospital after talking to Dr. Zwolski during Leonard's

second visit.

Dr. Segreti, plaintiffs' retained infectious disease expert,

testified that had the antibiotics been changed to include

anaerobic coverage, Leonard would not have suffered the amputa-

tion of his toes or foot. Dr. Segreti further testified that the

only reason Leonard underwent an amputation was due to the

infection. He came to this conclusion given the blood flow studies performed at St. Joseph Provena that indicated Leonard

had very good blood flow to his lower extremities, especially in

the foot and toes. Dr. Segreti also specifically stated that he

was not testifying to the standard of care of emergency room

physicians.

Plaintiffs called Dr. Michael Rosenberg, who testified that

Dr. Veguilla violated the proper standard of care for emergency

room physicians by failing to admit Leonard during his first

visit. Dr. Rosenberg also testified that it was a violation of

the standard of care for Dr. Zwolski not to admit Leonard on his second visit. Dr. Rosenberg's opinions were based on the status

of the patient as a diabetic, the patient's recent transplant

history, and the fact that Leonard was on antirejection medica-

tion. Dr. Rosenberg noted those facts put Leonard at severe risk

of infection and rejection.

Dr. Rosenberg further testified that Dr. Veguilla should

5 have taken blood cultures and placed Leonard on an antibiotic

that would have covered both aerobic and anaerobic bacteria. Dr.

Rosenberg testified that Leonard was not covered for anaerobic

bacteria that can develop with injuries of this type to diabetic

patients in very tight, closed-off spaces, especially between the

webbing of the toes. Dr. Rosenberg opined that the emergency

room physicians' treatment of Leonard violated the applicable

standard of care. Defendant Dr. Veguilla testified that he examined Leonard on

December 22, 2003, and took a medical history. The physical

examination revealed a relatively small area of minimal swelling

on the right foot. There was evidence of infection, as mani-

fested by erythema, induration, warmth and mild tenderness. The

affected area was about the size of a quarter, or 50-cent piece.

The medical history disclosed that Leonard was a diabetic, as

well as a multiple-transplant patient. Leonard was taking

immunosuppressant medications secondary to the kidney and pan-

creas transplants. Dr. Veguilla diagnosed Leonard with cellulitis and

lymphangitis. The absence of a note in the medical records

measuring the length of the red streak (the lymphangitis) indi-

cates that the streaking did not extend to the mid-foot. He

explained that his custom and practice is to document the length

of the streak, if clinically significant, but not the length of

6 smaller streaks that "don't really go anywhere."

Dr. Veguilla ordered an injection of Ancef, an antibiotic,

and prescribed Levaquin, another antibiotic. Levaquin is a broad

spectrum antibiotic, covering a large number of bacteria. In

oral form, it provides coverage as comprehensive as intravenous

administration. It does not cover anaerobic bacteria.

Before discharging Leonard from the emergency room, Dr.

Veguilla discussed with him the importance of getting follow-up care with his own treating physician. Dr. Veguilla recommended

that Leonard see his endocrinologist, Dr. Freeman, within two

days after discharge from the emergency room. Dr. Veguilla also

told Leonard that changes in the condition or appearance of his

foot would indicate that he needed to see a doctor sooner.

Finally, Dr. Veguilla told Leonard that if he could not get in to

see Dr. Freeman, he could return to the emergency room for

further evaluation and treatment.

Dr. Zwolski testified that he treated Leonard during his

second visit to the emergency room on December 30, 2003. Leonard reported that the pain was better, he had no fever, and the red

streaks were no longer present in his foot. Dr. Zwolski noted

there was pus draining from the wound, but that this was not

necessarily a sign that the infection was worsening.

Dr. Zwolski ordered blood work and an X-ray that ultimately

showed a fracture on the fifth toe of the right foot. The blood

7 work included a complete blood count, blood cultures, and a

sedimentation rate.

Dr. Zwolski testified that the blood tests showed no indica-

tion of an anaerobic infection. Additionally, Leonard's foot did

not have the foul odor characteristic of an anaerobic infection.

Had there been such an odor, Dr. Zwolski would have noted it in

the medical record. Dr. Zwolski opined that Leonard had improved

from his first visit to the emergency room. Given Leonard's improvement, Dr. Zwolski did not believe there was an indication

for an infectious disease consultation or admission to the

hospital. Furthermore, he believed there was no indication to

change the antibiotic as it appeared Leonard was benefitting from

the Levaquin.

Nevertheless, before discharging Leonard, Dr. Zwolski

contacted Dr. Freeman. Per his custom and practice, Dr. Zwolski

stated he would have advised Dr. Freeman that Leonard had been in

the emergency room previously and that Leonard had been taking

Levaquin for seven days. While he believed that Leonard was improving, he still informed Leonard to follow up with Dr.

Freeman given his diabetes and transplant history.

Defendants called Dr. Leslie Zun as a standard of care

expert on their behalf. Dr. Zun opined that, when seen in the

emergency room, Leonard had routine cellulitis and lymphangitis.

Leonard's status as a diabetic and transplant patient did not

8 require that this common problem be treated any differently than

it would be for any other patient. Had the problem been directly

related to his transplant, the treatment might have been differ-

ent. Leonard needed close follow-up care due to his history, but

otherwise treatment for his cellulitis and lymphangitis did not

require specialized care and treatment.

Dr. Zun testified that the choice of Levaquin to treat

Leonard's infection was within the standard of care. Levaquin is a broad spectrum antibiotic that treats numerous common infec-

tions and has very good coverage in oral form. Dr. Zun agreed

that Levaquin does not cover anaerobic infection, but such

infections are not commonly seen. Dr. Veguilla was not required

to prescribe an antibiotic for an anaerobic infection; physicians

must prescribe antibiotics based on what they believe is the most

likely organism present. Those organisms include staph or strep,

which are both covered by Levaquin. It was not appropriate to

prophylactically prescribe for every bacteria that could poten-

tially cause an infection. That is why patients are to follow up with primary care physicians, as it gives the physicians a chance

to determine whether the infection is responding and to change

the antibiotic if it is not.

Dr. Zun further testified that it did not violate the

standard of care during Leonard's first visit to discharge him

without ordering a complete blood count or an X-ray as neither is

9 indicated for routine cellulitis. Even if a complete blood count

and X-ray had been ordered during the first emergency room visit

and both revealed the same results as the tests during the second

emergency room visit, those results would not have changed the

course of action prescribed by Dr. Veguilla.

Dr. Zun opined that hospitalization was not required follow-

ing either emergency room visit as the records indicated that the

first visit involved a straightforward cellulitis and lymphangitis case and, by the second visit, Leonard's condition

had improved as evinced by the disappearance of the red streaks

and the lack of fever. Furthermore, the pus draining from the

wound was an indication that the infection was actually improv-

ing, not getting worse. After pus drains, an infection usually

improves so the appearance of pus was not a sign that the antibi-

otics should have been changed. The slightly elevated white

blood cell count indicated that Leonard's body could mount an

appropriate response to the infection, given the fact that his

body was producing white blood cells to respond to the infection. In Dr. Zun's opinion, none of the test results suggested that the

antibiotics should have been changed.

Finally, Dr. Zun testified that it is common for a patient

to present with an improving infection, such as Leonard did on

December 30, 2003, then experience a rapid deterioration thereaf-

ter. Had Leonard presented on December 30 with any of the

10 indications that were present on January 2, 2004 (color of the

toes had changed, with ischemic changes and foul odor), then

admission would have been indicated. However, the medical

records reveal that those symptoms were simply not present during

Leonard's December 30, 2003, visit.

Defendants also called Dr. Fred Zar to testify on their

behalf. Dr. Zar is an infectious disease expert. His testimony

was very similar to Dr. Zun's. He testified that Levaquin was a proper antibiotic to prescribe to Leonard and that there was no

indication to change that course of treatment. Given Leonard's

symptoms, there was no need for an infectious disease consulta-

tion during either of his emergency room visits. He agreed that

physicians are not to prescribe antibiotics for every infection a

patient may possibly get, but rather are only to prescribe

medications based upon the condition observed.

Dr. Zar opined that the presence of pus on the December 30

visit did not indicate that the infection was worsening but,

rather, that the infection was getting better. Another sign that the infection was improving on that date, was the fact the

lymphangitis was no longer present. Based on these findings, it

was reasonable for Dr. Zwolski to continue the Levaquin and

conclude that it was adequately covering Leonard's infection.

Dr. Zar opined that a new bacteria, resistant to the Levaquin,

may have entered through the wound opening and caused the rapid

11 deterioration that occurred by January 2, 2004. In his opinion,

Leonard's amputation was due, in part, to vascular disease

resulting from diabetes and not only due to the infection. A

test taken at Northwestern Memorial confirmed that Leonard had

severe small vessel disease. Leonard's small blood vessels had

been damaged from years of diabetes. This inhibited circulation

of his own antibodies, as well as antibiotics. Dr. Zar testified

that once the infection occurred, amputation was virtually inevitable due to the severe vascular disease.

After trial, the jury returned a verdict for the defendants

and against plaintiffs. The circuit court denied plaintiffs'

posttrial motion for judgment notwithstanding the verdict

(judgement n.o.v.) or, in the alternative, for a new trial. This

timely appeal followed.

ANALYSIS

Plaintiffs argue on appeal that the trial court erred in

denying their posttrial motion. The motion alleged that the

"overwhelming evidence presented during this trial clearly established that the plaintiffs met their burden of proof and

unequivocally proved [defendants] were negligent." The posttrial

motion further alleged that the trial court erred by denying

their motion in limine and allowing testimony that both defendant

physicians served in the armed services, claiming such testimony

severely prejudiced the plaintiffs.

12 I. Judgment n.o.v.

We review a trial court's ruling on a motion for judgment

notwithstanding the verdict (judgment n.o.v.) de novo. McClure

v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102 (1999). A

judgment n.o.v. should only be entered when all the evidence,

viewed in the light most favorable to the nonmoving party, so

overwhelmingly favors the movant that no contrary verdict could

ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494 (1967).

In an appeal from a jury verdict, a reviewing court may not

reweigh the evidence and substitute its judgment for that of the

jury. Snelson v. Kamm, 204 Ill. 2d 1 (2003). It is within the

jury's province to resolve conflicts in evidence, pass on the

credibility of witnesses, and determine the weight given to

witnesses' testimony. Canopy v. Hentz, 345 Ill. App. 3d 797

(2004).

Plaintiffs argue that the "overwhelming evidence presented

during this trial clearly establishes that the plaintiffs met their burden of proof and unequivocally proved that Dr. Vegulla

and Dr. Zowlski were negligent in one or more ways." This is so,

plaintiffs conclude, because central to the issue of deviation

from the standard of care was the choice of the antibiotic

Levaquin. Plaintiffs claim that since all four of the parties'

retained experts testified that Levaquin provided no anaerobic

13 coverage, they unequivocally proved defendants violated the

applicable standard of care given Leonard's status as a diabetic

and transplant patient. Therefore, plaintiffs assert, the jury's

verdict to the contrary was against the manifest weight of the

evidence.

Dr. Rosenberg, plaintiffs' emergency room standard of care

expert, testified that defendants violated the applicable stan-

dard of care by not prescribing a broader based antibiotic that would cover anaerobic bacteria. Dr. Rosenberg further testified

that the emergency room physicians violated the applicable

standard of care by not admitting Leonard to the hospital on

either his first or second visit to the emergency room. This

testimony was clearly contradicted.

Defendants' experts, Drs. Zun and Zar, opined that defen-

dants did nothing wrong in the course of care they prescribed

Leonoard. Dr. Zun, as well as Dr. Rosenburg, testified that the

prescription of Levaquin was appropriate given Leonard's symptoms

which indicated routine cellulitis and lymphangitis. Dr. Zun stated that failing to admit Leonard to the hospital, or pre-

scribe a broader based antibiotic that would cover anaerobic

bacteria, was not a violation of the standard of care. This was

so for many reasons according to Dr. Zun.

Defense experts testified that physicians are only to treat

the symptoms and conditions presented and only prescribe antibi-

14 otics for the most likely organism present. They stated it is

totally inappropriate to prescribe medications prophylactically

for every bacteria that could possibly cause an infection.

Defendants' experts continued by noting that all indications

pointed to the conclusion that the Levaquin was working. This

was so given Leonard's condition when he presented for the second

time to the emergency room. Leonard's own trial testimony

confirms that the "streaks had gone down" (the lymphangitis) from the first visit to the second visit. When asked whether there

was a foul smell to his foot when he presented to the emergency

room the second time, plaintiff admitted that "at that time there

wasn't, no." Plaintiff acknowledged that he had no fever and

that there was no additional redness in his foot when he pre-

sented to the emergency the second time.

Dr. Zun testified that those facts coupled with the blood

test results and the draining pus (being a sign of healing) lead

to the conclusion that the Levaquin was working. Therefore, in

Dr. Zun's opinion, continuing a course of treatment that appeared to be working did not violate the standard of care.

Moreover, plaintiffs' infectious disease expert, Dr.

Segreti, testified that in his opinion, the only reason Leonard's

foot was partially amputated was due to the infection. This,

too, was contradicted. Dr. Zar, defendant's infectious disease

expert, testified that the cause of the amputation was, in part,

15 due to Leonard's vascular disease problems associated with

diabetes. Dr. Zar noted that the Northwestern Memorial records

confirmed that Leonard had severe small vessel disease. This

inhibited circulation of plaintiff's own antibodies as well as

the antibiotics. Dr. Zar concluded that once the infection

occurred, amputation was virtually inevitable due to the severe

peripheral vascular disease.

Clearly, the evidence does not so overwhelmingly favor the plaintiffs that the jury verdict cannot stand as only a contrary

conclusion should have been reached. The jury simply resolved

disputed issues in defendants' favor. We find no error in the

trial court's denial of plaintiffs' posttrial motion for judgment

n.o.v.

II. Military Service

A trial court's ruling on a motion in limine addressing the

admission of evidence will not be disturbed on review absent a

clear abuse of discretion. Swick v. Liautaud, 169 Ill. 2d 504,

521, 621 N.E.2d 1238 (1996). An abuse of discretion occurs when the ruling is arbitrary, fanciful, or unreasonable or when no

reasonable person would take the same view. People v. Illgen,

145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991). The admission of

evidence rests largely within the sound discretion of the trial

court, and its decision will only be reversed when such discre-

tion has been clearly abused. Hunt v Harrison, 303 Ill. App. 3d

16 54, 707 N.E.2d 232 (1999). Plaintiffs claim the trial court

abused that discretion regarding evidence of defendants' military

service as: (1) Dr. Zwolski's deployment to the Iraq war was

subsequent to his treatment of plaintiff; and (2) reference to

the physicians' military service improperly influenced the jury

by invoking "strong views of patriotism for our troops." There-

fore, plaintiffs argue, such references were more prejudicial

than probative. In Jones v. Rallos, the court held that "'when a physician

sued for malpractice testifies as an expert, evidence as to his

age, practice, and like matters relating to his qualifications as

an expert is admissible.'" Jones v. Rallos, 384 Ill. App. 3d 73,

90, 890 N.E.2d 1190, 1205-06 (2008), citing Rockwood v. Singh,

258 Ill. App. 3d 555, 557, 630 N.E.2d 873, 875 (1993). As such,

the Jones court held it was not error to allow into evidence the

fact that the defendant physician failed a board certification

exam some 20 years before treating the patient. Jones, 258 Ill.

App. 3d at 90. Dr. Zwolski was deployed to Iraq to serve as a physician.

Dr. Veguilla, while discussing his collegiate path from Lehigh

University to Monmouth College, mentioned that between schools he

"signed up for the Marine Corps." Then, "after [his] training in

the Marine Corps," he continued college. Both defendants testi-

fied as experts on their own behalf claiming, in their expert

17 medical opinion given all their training and education, they did

nothing wrong. Certainly Dr. Zwolski's service in Iraq as a

physician involved matters relating to his qualification as an

expert. The fact that Dr. Zwolski's service took place after

treating Leonard is of no consequence. All of Dr. Zwolski's

medical experience is relevant to his qualification as an expert

at trial. Moreover, we cannot say the references to either Dr.

Veguilla's time in the military or Dr. Zwolski's service in Iraq was more prejudicial than probative.

During opening statements, defense counsel briefly mentioned

Dr. Veguilla's military service and the fact that Dr. Zwolski was

a member of the United States Navy Reserves. During defendants'

direct testimony, each doctor was allowed to testify to the

nature and timing of their military service and where it fell in

relation to other professional and educational training. Then,

in closing, defense counsel briefly mentioned Dr. Zwolski's

treatment of soldiers in Iraq, but did not mention Dr. Veguilla's

service whatsoever. The evidence did no more than give the jurors some background on these defendants. The evidence was

relevant as to Dr. Zwolski's credentials as an expert physician.

While less relevant as to Dr. Veguilla, any error was harmless.

No undue attention was paid to Dr. Veguilla's military service.

We find it was not an abuse of discretion to deny plain-

tiffs' motion in limine and allow references to defendants'

18 military service. The trial court did not err in denying plain-

tiffs' posttrial motion for a new trial. Any error as to Dr.

Veguilla's service was harmless.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court

of Will County is affirmed.

Affirmed.

CARTER and LYTTON, JJ., concur.