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Use of NG Tube to Alleviate Colonic Distention after Surgery; Religious Juror


A man underwent a successful cervical laminectomy (spinal surgery) performed by a neurosurgeon. Postoperatively, an internist evaluated the man for pulmonary and blood pressure concerns at the neurosurgeon’s request. The man developed gastrointestinal issues and the internist ordered a kidney, ureter, and bladder x-ray to assist in the evaluation of his abdominal distress. The internist remained involved in the man's care for a number of days during which, among other things, the internist monitored the man’s constipation and resulting colonic distention, which sometimes occurs in varying degrees as a complication following surgery under general anesthesia. Just before he was scheduled to leave for vacation, the internist asked an associate to take over this aspect of the man's care and also requested a consult by a gastroenterologist to evaluate the possibility of a colonic obstruction, which could constitute a medical emergency. The gastroenterologist evaluated the man and ordered more testing. Shortly thereafter, the man suffered a catastrophic perforation of his colon, which was subsequently removed and replaced by a permanent ileostomy tube.

 

The man and his wife filed a complaint against the internist, gastroenterologist, and neurosurgeon alleging medical negligence and loss of consortium. Specifically, the complaint alleged that the doctors failed to properly diagnose and treat his acute colonic disturbance, medically recognized as a pseudo-obstruction known as Ogilvie syndrome, which ultimately resulted in the perforation of his colon. The man and his wife settled with the gastroenterologist and neurosurgeon and ultimately tried their case solely against the internist.

 

At trial, the internist testified that he evaluated the man in the recovery room for pulmonary and blood pressure issues, while also prescribing magnesium sulfate as a “routine simple treatment for constipation,” which was said to be a known complication from surgery under general anesthesia. As part of his management, several days into the postoperative period, the internist ordered a radiological study of the man’s abdomen that revealed a distended colon, but without evidence of obstruction, which would have required immediate intervention. The following day, the internist requested a gastroenterology (GI) consultation with the gastroenterologist who took over the man's GI care. The internist then left town on a scheduled leave after handing off his care to an associate. Upon his return, he learned of the unfortunate and traumatic event that occurred in his absence.

 

The couple’s expert, a board certified family physician, testified that the internist deviated from the standard of care by failing to adequately perform a history and physical examination of the man. It was the family physician's opinion that the internist was the “attending physician,” based both on the factual circumstances and certain entries in the medical record. The attorneys of record sparred back-and-forth on this issue, with plaintiff endeavoring to prove that the internist was in charge of the man's hospitalization and the internist seeking to persuade the jury that he was called in to consult on the internal medicine issues at the neurosurgeon's request. In the family physician's opinion, even though the internist did ask an associate to cover for him while he was out of town, the mere ordering of a specialist consultation for the brewing GI issues did not relieve the internist of responsibility for the man's care. As for the specific failure to medically intervene to relieve the man's colonic disturbance, the family physician testified that the internist was negligent for failing to insert a nasogastric (NG) tube and that this relatively simple procedure would have alleviated the colonic distention and prevented the later perforation.

 

The wife testified that she believed the internist was the physician in charge of the man's primary care and she continuously informed the internist about the man’s GI problems. In addition, she testified to the severity of the man’s illness and pain after his colon removal, as well as his long-term care and daily struggles with the ileostomy.

 

Following this testimony, a sidebar conference was held at the internist's request based on certain observations made of a juror who was allegedly communicating, seemingly in a supportive way, with the man and his wife. Specifically, one of the internist's attorneys reported to the trial court that she had seen a juror approach the man’s wife and say, “bless you,” on her way out of the courtroom, even though the court had specifically instructed the jury not to communicate directly with the parties and counsel. The internist moved for a mistrial. After careful consideration, the trial judge denied the motion, but held a hearing outside the presence of the jury to determine whether the juror should be disqualified from jury service.

 

At this hearing, the trial court's law clerk testified under oath that during a sidebar she observed the juror give the thumbs up sign to the couple, who smiled back. The juror then testified that she “always [said] God bless you” to everyone. She further explained that it meant “for people [to] always stay encouraged, just stay encouraged, and know God [was] in control of everything.” She also noted that she listened to the wife's testimony about life with her husband and it “hurt” her because of the man's condition. In regards to the thumbs up gesture, she said, “I always do this, like I'm giving it to God.” She failed to remember if she looked at plaintiffs directly. When asked by the court how she would deal with something in the law being contrary to the teachings in the bible, she said that she “[would] pray about it.” But she did indicate that “the Bible [said] to obey those who have rule over you no matter what. So I have to obey [the court].”

 

A member of the internist’s defense team alleged that she saw the juror “nodding” in agreement during the wife's testimony. The team member also heard the juror say, “Yes, that's right” and “you know that's right,” around the time the wife testified about her faith. The juror testified that she did not remember, but may have said it.

 

Following argument, the trial court disqualified the juror because she disobeyed the court in her direct and indirect communication with plaintiffs. In addition, the court noted being troubled by evidence that the juror verbally commented during the wife's testimony and that she had a bible with her in the jury box. Ultimately, the court was concerned about whether the juror was “going to follow the jury instructions and then wait until the conclusion of evidence and discuss the case with [her] fellow jurors with a desire to try to come to some decision.” The court believed that discharging her was the only way to ensure both parties a fair trial.

 

The internist presented his defense. First, he called the gastroenterologist, who testified that he was called in by the internist to evaluate the man for a possible colonic obstruction. The gastroenterologist evaluated the man’s chart and then performed a history and physical. The gastroenterologist requested that narcotics be withheld to alleviate constipation, ordered another x-ray of the abdomen and was contemplating the performance of a colonoscopy as soon as the man's colon could be sufficiently emptied to obtain a diagnostic result. The gastroenterologist testified that, as of the time of his initial visit with the man, he saw no indication that he would imminently perforate, an event that unfortunately occurred some hours later.

 

The internist’s expert, a physician board certified in internal medicine, anesthesiology, and critical care medicine, testified that during the man’s postoperative period, the principal medical concern related to respiratory health and blood pressure, but that GI issues did become a focus over a period of time. The internist’s expert believed that the internist acted at all times within the standard of care, particularly when he deferred the man's GI care and treatment to the gastroenterologist, a specialist in that area. When asked if the standard of care required the internist to “put in an NG tube,” the couple’s counsel objected and a side bar commenced.

 

At the sidebar, the trial court reviewed the internist's expert witness interrogatory answers and determined that testimony regarding the NG tube was properly disclosed and testimony would be allowed. In addition, the court permitted the internist's expert witness and the internist to offer opinion testimony in contradiction of the family physician's testimony, since the disclosures revealed that each “disagreed” with the family physician's specific opinion in this regard. The trial court also allowed the internist to demonstrate the mechanical use of an NG tube with the caveat that any discussion should be consistent with the family physician's testimony on the matter. The internist's expert witness then testified that the standard of care did not require the internist to place an NG tube in the man and that any such insertion would not have prevented the man’s colon perforation.

 

The internist testified in his own defense about being called in by the neurosurgeon for an internal medicine consultation for the man's postoperative care. This ultimately led him to begin evaluating his constipation. At some point during this care, the internist was concerned that a colonoscopy (only performed by GI physicians) would need to be performed for diagnostic purposes, so he decided to call in the gastroenterologist. The internist testified that he disagreed with the opinion that insertion of an NG tube was medically indicated while he was caring for the man. He then demonstrated the placement of an NG tube using a real tube and a diagram of the intestinal tract. The couple renewed their objection and the trial court again instructed defense counsel not to go beyond the disclosed opinion regarding the standard of care during the demonstration. The internist also testified that none of his actions or inactions caused or contributed to the injury to the couple.

 

The jury reached a verdict in favor of the internist. The trial court entered a judgment on the verdict and denied the couple’s post-trial motion.

 

The First District Appellate Court of Illinois, Fourth Division, affirmed. The court held that the trial court did not err in allowing the internist and his defense expert to testify regarding the indication for and the efficacy of medical intervention with an NG tube to alleviate the man's colonic distention; the trial court did not err in dismissing one of the jurors for her religious beliefs; and the trial court erred instructing the jury on sole proximate cause, as contained in the long form of Illinois Pattern Jury Instructions, Civil No. 12.04 (2012) (hereinafter, IPI Civil (2012) No. 12.04), regarding sole proximate cause, however the error in the proximate cause instruction did not prejudice the couple sufficiently to warrant reversal and retrial.

 

The trial court did not err in allowing the internist and his defense expert to testify regarding the indication for and the efficacy of medical intervention with an NG tube to alleviate the man's colonic distention. The court held that a witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion rather than new reasons for it. Pursuant to written discovery, the internist disclosed that he and his expert each disagreed with the family physician's opinion that the standard of care required the internist order or place an NG tube in the man or otherwise decompress his abdomen. The internist disclosed that his and his expert's education, training, and experience were the basis for their anticipated opinion testimony and also disclosed that they had reviewed the man's medical file and the family physician's opinion. The couple’s counsel did not ask any more detailed questions about the bases of this opinion at deposition, despite the fact that it contradicted their central theory of the case. The court reasoned that these general opinions were sufficient to put the couple on notice regarding the details that emerged during testimony at trial. Based on the disclosed opinions, the court found that testimony regarding compliance with the standard of care regarding the NG tube, opinions regarding the absence of any proximate causation, and the NG tube demonstration were all logical corollaries of the pretrial disclosures.

 

The trial court did not err in dismissing one of the jurors for her religious beliefs. The court held that a juror may only be discharged upon a showing of good cause, and prejudice must be shown in order to warrant reversal. The court found that the trial court did not directly dismiss the juror for her religious beliefs. The record demonstrated that the trial court judge acted prudently because he believed that discharging the juror was the only way to ensure a fair trial for both parties. The juror disobeyed a specific court order by directly and indirectly communicating with plaintiffs.

 

The trial court erred in instructing the jury on sole proximate cause, as contained in the long form of Illinois Pattern Jury Instructions, Civil No. 12.04 (2012) (IPI Civil (2012) No. 12.04), regarding sole proximate cause. Known in trial parlance as the “empty chair defense,” this instruction can be properly utilized to point to the conduct of another “actor” as being the sole responsible cause for an injury. The court presented the jury with the second paragraph of the pattern instruction that states that if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant. The court held that sole proximate cause is a valid defense in a medical negligence lawsuit if there is evidence that tends to establish that the conduct of something or some person other than the defendant was solely responsible for plaintiff's injuries. The internist did not present evidence or specifically argue that any particular person may have been solely to blame for the man's injuries, but his lawyer did argue that if the jury accepted the plaintiffs' theory that the internist could be negligent for failing to insert an NG tube, which could have prevented the man's bowel perforation, then the jury should consider whether the conduct of the gastroenterologist could be the sole proximate cause of the perforation. The court found that it was nonsensical to claim that identical courses of medical conduct by two different physicians occurring at two distinct time periods could lead to the legal conclusion that the later of the two doctors would be the sole proximate cause of the injury. Illinois does not recognize “last clear chance” as a viable theory in any personal injury case or a medical negligence case.

 

The error in the proximate cause instruction did not prejudice the couple to warrant reversal and retrial. Nothing other than speculation supports the conclusion that this one sentence from the court's instructions to the jury sowed any confusion in the jury's deliberations. The jury could have simply decided that the internist was not negligent, which was the overarching theme of his defense at trial. If that were the case, the jury would never reach the question of proximate cause. The jury here returned a general verdict with no special interrogatory designed to test that verdict on this singular issue.

 

The First District Appellate Court of Illinois, Fourth Division, affirmed the trial court’s entry of a judgment upon a jury verdict in favor of the doctor.

 

See: Jones v. Beck, 2014 IL App (1st) 131124-U, 2014 WL 3696087 (Ill.App. 1 Dist., July 24, 2014) (not designated for publication).

 

See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe

 

 

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