1-09-0691
THIRD DIVISION
August 4, 2010
No. 1-09-0691
CHARLES F. CETERA AND ELIZABETH CETERA, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. )
)
MARY DiFILIPPO, ) Honorable
) Carol P. McCarthy,
Defendant-Appellee. ) Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
Plaintiffs, Charles and Elizabeth Cetera, filed a lawsuit alleging medical negligence
against defendant, Dr. Mary DiFilippo, claiming that defendant was negligent in the diagnosis
and treatment of an infection that Charles sustained following coronary bypass surgery.1
Following a trial, the jury returned a verdict in favor of defendant and against plaintiffs.
Plaintiffs filed a posttrial motion requesting a new trial, which the circuit court denied. On
appeal, plaintiffs contend that the circuit court abused its discretion in denying their posttrial
motion for a new trial where the court committed reversible error by: (1) allowing the
introduction of plaintiffs’ expert Dr. Carl David Bakken’s licensing reprimand into evidence; (2)
allowing defendant’s expert witnesses to present undisclosed opinion testimony; (3) barring
1
Plaintiffs also filed a negligence claim against the hospital, Christ Hospital and Medical
Center, which was dismissed prior to trial.
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plaintiffs from questioning Dr. John Andreoni, a treating physician, regarding his insurance
coverage; (4) allowing cross-examination of plaintiffs’ expert Dr. Rodger MacArthur concerning
his proximate cause opinions relating to the hospital nursing staff's conduct and giving the long
form of Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1989); (5) refusing plaintiffs’
nonpattern loss of chance instruction; (6) giving arbitrary rulings pertaining to cumulative
testimony and cross-examination; and (7) entering erroneous rulings throughout the trial that
cumulatively could have affected the jury’s verdict. For the following reasons, we affirm.
I. BACKGROUND
A. Medical Treatment
Plaintiff Charles Cetera was admitted to the hospital on October 27, 1998, as a 74-year-
old male with complaints of chest pain. Charles was diagnosed with a heart attack due to three
blocked arteries and underwent a surgery known as a coronary artery bypass graft (CABG). The
CABG included the placement of a chest tube in the upper right portion of Charles’s abdomen to
allow for drainage of the chest after surgery. After the tube was removed, a wound remained on
Charles’s abdomen.
Following the CABG procedure, Dr. Rajesh Sehgal, Charles’s cardiologist, determined
that Charles’s cardiac rhythm was normal. On November 3, 1998, Dr. Mariusz Gadula,
Charles’s attending physician, began planning Charles’s discharge from the hospital. Charles’s
hospital chart indicated that he did “great” during physical therapy on that date. There was no
indication that Charles’s doctors observed any redness or issue with the chest tube wound on
November 1, 2, or 3, 1998.
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On November 4, 1998, Dr. Mary DiFilippo was overseeing Charles’s care while Dr.
Gadula was away from the hospital. At 6:30 a.m., Dr. DiFilippo received a telephone call
alerting her that Charles was hypotensive and constipated. Dr. DiFilippo ordered that Charles
not be given his beta blocker medication and that he be given medication for his constipation. At
8:30 a.m., Dr. DiFilippo examined Charles in his hospital room. Dr. DiFilippo observed that
Charles had erythema, or redness, in the upper right quadrant of his abdomen, around the chest
tube wound. Dr. DiFilippo observed that the erythema was “minor” and limited to a two-inch,
“light pink” area around the wound and that Charles had some tenderness and swelling around
the wound. Charles complained of pain around the wound, but was unable to explain if the pain
was constant or intermittent. Dr. DiFilippo also examined Charles’s liver, blood pressure, heart
and extremities.
After examining Charles, Dr. DiFilippo’s impression was that Charles had cellulitis in the
upper right quadrant of his abdomen and low blood pressure. Dr. DiFilippo also considered
whether Charles had problems with his liver or gallbladder. Dr. DiFilippo ordered that 250
milligrams of the antibiotic Keflex be given to Charles four times per day to treat the cellulitis
and that Charles’s blood pressure medication be decreased. Dr. DiFilippo also ordered that
Charles’s cardiac surgeon check the chest tube wound and that Charles undergo a liver function
test. Dr. DiFilippo did not order a complete blood count test because she already knew there was
an infection and she did not order a culture because there was no drainage or any particular area
that could have been cultured without puncturing the wound. Dr. DiFilippo did not consider
calling an infectious disease consultation at that time because the wound was minor and she
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wanted input from the cardiac surgeons.
Later, at 11:30 a.m., on November 4, 1998, Dr. Pappas, a cardiovascular surgeon,
examined Charles and ordered an ultrasound of Charles’s upper right quadrant. Dr. Pappas did
not change Charles’s Keflex medication or order an additional antibiotic. At 12:40 p.m., Dr.
Cozy, a cardiologist, examined Charles and noted in Charles’s medical chart that he was taking
antibiotics. Dr. Cozy requested an infectious disease consultation but did not change the Keflex
medication.
At 4:30 p.m., Dr. Gordon, a cardiac surgeon, examined Charles and diagnosed a chest
wall infection. Dr. Gordon added the antibiotic vancomycin, which is used to treat methicillin-
resistant staph aureus (MRSA) infections, to the prior order for Keflex. Dr. Gordon requested an
infectious disease consultation but did not alter the Keflex medication. At 7 p.m., a nurse called
Dr. DiFilippo to report that Charles was not eating well and Dr. DiFilippo ordered the nurses to
provide a can of a nutritional supplement with Charles’s meals.
At 1 a.m., on November 5, 1998, a nurse contacted Dr. DiFilippo to report that Charles
had low blood pressure. Dr. DiFilippo ordered that Charles be immediately evaluated by the
house staff at the hospital. Dr. Anita Ekambarm, a first-year resident, examined Charles and
called Dr. DiFilippo at 2 a.m. Dr. Ekambarm reported that Charles had low blood pressure and
that the erythema had spread to the lower right quadrant of his abdomen. The erythema was
tender and Charles had an increased temperature. Dr. DiFilippo and Dr. Ekambarm’s differential
diagnosis was sepsis or a heart attack. A complete blood count (CBC) was ordered to determine
if Charles was septic and intravenous fluids were ordered to treat his low blood pressure. Dr.
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DiFilippo continued the Keflex and vancomycin.
At 4:30 a.m., a nurse observed that Charles’s chest tube wound was open and had a
bloody drainage. Dr. Ekambarm ordered a blood culture of the drainage. Dr. Ekambarm
believed that she notified Dr. DiFilippo of the drainage, but Dr. DiFilippo did not recall receiving
a call regarding the drainage.
At 9:05 a.m., on November 5, 1998, Dr. Gadula examined Charles after his return to the
hospital. Prior to the examination, Dr. Gadula discussed Charles’s care with Dr. DiFilippo in
preparation for resuming his care of Charles. Dr. Gadula noted that Charles had abdominal pain,
he was slightly lethargic and weak, had mild nausea with no vomit or diarrhea, and his blood
pressure was in the 95 range. Dr. Gadula’s impression was that Charles had a possible chest wall
infection extending from the chest tube wound. Dr. Gadula noted that Charles had been on the
antibiotics Keflex and vancomycin, and that an infectious disease consultation was pending. Dr.
Gadula ordered intravenous fluids, a blood culture, a complete blood test, a urine analysis, and
that Charles’s vital signs be monitored. Dr. Gadula did not change the antibiotic medications.
At 9:30 a.m., Dr. Andreoni, an infectious disease consultant, examined Charles. Dr.
Andreoni observed erythema on the right side of Charles’s abdomen, which was spreading along
his right flank. Dr. Andreoni noted that the erythema was tender, painful, and the skin was
swollen. Dr. Andreoni’s impression was cellulitis of the abdominal wall consistent with a strep
or mixed flora infection. Dr. Andreoni ordered the Keflex be discontinued and that the broad
spectrum antibiotic Unasyn be administered by IV every six hours, as soon as possible. Dr.
Andreoni continued the vancomycin.
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The same morning of November 5, 1998, Charles was also examined by his cardiologist,
Dr. Sehgal. Dr. Sehgal noted that Charles had abdominal pain and an infection where the CABG
was performed. Dr. Sehgal ordered a blood gas test, a CT scan of Charles’s abdomen, a surgical
consultation, and that Charles be transferred to the intensive care unit.
At 1:30 p.m., on November 5, 1998, Dr. Gerald Klompien, a general surgeon, examined
Charles and observed that Charles had a spreading cellulitis over the right abdominal wall. Dr.
Klompien noted that he did not see crepitation, or gas, in the infected tissue, which would evince
dying tissue. Dr. Klompien did not take Charles to surgery immediately because he did not find
any crepitation, Charles appeared stable, and had just been started on IV antibiotics.
Around midnight on November 5, 1998, Dr. Klompien took Charles to surgery to
oxygenate the infected tissue. During surgery, Dr. Klompien encountered a thin, watery fluid and
healthy muscle with the fat above it bleeding, which was a positive sign that a blood supply
remained, allowing antibiotics to get to the tissue. Dr. Klompien diagnosed Charles with
necrotizing fasciitis.
On November 7, 1998, Charles underwent a second skin surgery to remove more tissue
from the abdomen that had died after the first surgery. Charles’s infection continued to spread
and he underwent a third surgery on November 9, 1998, to remove tissue from his right flank,
upper right leg, groin, and chest.
On November 10, 1998, Dr. Riccardo Izquierdo, a plastic surgeon, performed a more
aggressive surgery to remove all of the necrotic tissue plus an additional two to three centimeters
of healthy tissue in order to stop the infection. Dr. Izquierdo removed portions of the fat, muscle
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and fascia in the right groin, right upper leg, the buttock, and the back. On November 21, 1998,
Dr. Izquierdo performed surgery to take skin from Charles’s thighs and graft the skin to his open
wounds.
B. Plaintiffs’ Experts
At trial, plaintiffs called Dr. Carl David Bakken to testify, as a physician specializing in
internal medicine and infectious diseases. Dr. Bakken testified that he reviewed Charles’s
medical charts, including Dr. DiFilippo’s examination of Charles at 8:30 a.m. on November 4,
1998. Dr. Bakken disagreed with Dr. DiFilippo’s diagnosis of mild cellulitis because of the
location and redness combined with Charles’s weakness, low blood pressure, and complaints of
pain. Dr. Bakken testified that the standard of care required Dr. DiFilippo to order a complete
blood count to determine if Charles’s white blood count was elevated and to initiate appropriate
broad spectrum intravenous antibiotics rather that a very small dose of oral Keflex. Dr. Bakken
testified that Keflex is appropriate for treating cellulitis in a hospitalized patient to treat a minor
infection, such as some redness of the finger or toe, where there are no signs of systematic
infection. Dr. Bakken testified that Keflex is never appropriate for treating cellulitis appearing at
the site of a five-day-old surgical wound. Dr. Bakken also testified that Dr. DiFilippo should
have considered additional diagnoses, such as a drug rash and deeper tissue involvement.
In addition, Dr. Bakken criticized Dr. DiFilippo’s differential diagnosis on November 5,
1998, after discussing Charles’s condition with Dr. Ekambarm. Dr. Bakken testified that
Charles’s vital signs at 2 a.m. indicated that he was “quite sick” and he disagreed with Dr.
DiFilippo’s differential diagnosis of “sepsis versus heart attack.” Rather, Dr. Bakken testified
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that in his opinion, Charles had “evidence of a significant soft tissue infection which had spread
to not only involve the great area of the right quadrant, but also involving the right lower
quadrant of [Charles’s] abdomen.” Dr. Bakken opined that Dr. DiFilippo violated the standard
of care by failing to recognize and diagnose a “systematic infection” and provide a differential
diagnosis which included necrotizing fasciitis.
With regard to proximate causation, Dr. Bakken opined that, had Dr. DiFilippo
recognized the severity of the infection on November 4, 1998, and ordered a broad spectrum
intravenous antibiotic or contacted the infectious disease consultant, Charles would have lost
significantly less tissue and required less surgery. Dr. Bakken testified that the infection could
have been contained to the abdominal area with the proper diagnosis.
During recess of Dr. Bakken’s direct examination, defendant advised the court of her
intent to cross-examine Dr. Bakken regarding a reprimand he received on his license from the
Illinois Department of Professional Responsibility pertaining to his misdiagnosis of a medical
condition in a patient under his care. Plaintiffs responded that the reprimand had no relevance to
this case where it did not relate to Dr. Bakken’s credibility or ability to testify and the reprimand
did not prevent him from practicing. Plaintiffs also suggested that the circuit court voir dire Dr.
Bakken. The circuit court ruled that defendant would be allowed to ask Dr. Bakken if he had
received the reprimand in question.
During cross-examination, Dr. Bakken admitted that in 2007, he received a letter of
reprimand from the Illinois Department of Professional Regulation to his medical license for
failing to diagnose microhematuria in a patient.
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Dr. Rodger MacArthur, a medical doctor specializing in internal medicine and infectious
diseases, also testified as plaintiffs’ expert and provided opinions on the standard of care and
causation. Dr. MacArthur opined that Keflex was not an appropriate antibiotic for Charles on
November 4, 1998. Dr. MacArthur testified that Keflex was not appropriate because it does not
cover the kind of organisms that are present in the hospital setting. Dr. MacArthur explained the
differences between Keflex, which is an antibiotic given by mouth, and Unasyn, which is an IV
antibiotic that delivers much higher levels of antibiotic to the blood and tissues. Dr. MacArthur
testified that at 8:30 a.m., on November 4, 1998, Unasyn would have been the best antibiotic to
give Charles, and had Unasyn been prescribed at that time, it would have slowed the spread of
infection. Dr. MacArthur testified that the standard of care in 1998 required that an internist
have basic knowledge of antibiotics, including the appropriate amount of drug concentration that
would get into the serum, and the appropriate antibiotics to use for a postoperative surgical
patient with a skin infection. Dr. MacArthur opined that Dr. DiFilippo deviated from the
standard of care in this regard.
Dr. MacArthur testified that Charles would have developed necrotizing fasciitis by 4:30
a.m., on November 5, 1998. However, Dr. MacArthur’s opinion was that if the right antibiotics
had been given to Charles at either 8:30 a.m. on November 4, 1998, or at 4:30 a.m. on November
5, 1998, it could have slowed the spread of infection and limited it to Charles’s abdominal wall.
Dr. MacArthur also offered a proximate causation opinion that Charles lost a chance at a better
outcome because he was given Keflex on the dates in question. Dr. MacArthur opined that
Charles would have lost “substantially less tissue,” experienced “substantially less scarring,” and
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needed “substantially fewer surgeries.”
On cross-examination, Dr. MacArthur acknowledged that necrotizing fasciitis was
present in Charles on the morning of November 4, 1998, when he was examined by Dr.
DiFilippo. Dr. MacArthur also testified that necrotizing fasciitis and cellulitis have common
symptoms such as redness and pain, but that necrotizing faciitis is uncommon and multiple
surgical procedures for debridement are required to treat necrotizing fasciitis. Dr. MacArthur
also testified, over plaintiff’s objection, regarding his withdrawn opinion that nursing records
indicated missed doses of intravenous antibiotics on November 5 and November 6, 1998. Dr.
MacArthur testified that Unasyn was ordered at 10 a.m. on November 5, 1998, to be
administered as soon as possible and every six hours. However, the first dose was not
administered until 7 p.m. on November 5, 1998, and Charles did not receive a second or third
dose of Unasyn. Dr. MacArthur testified that had Charles received a timely first, second, and
third dose of Unasyn, the necrotizing fasciitis most likely would not have spread outside of his
abdomen.
Elizabeth Cetera, Charles’s wife, testified regarding the pain Charles endured following
his many surgeries and his rehabilitation. Elizabeth also testified regarding how Charles’
lifestyle and personality permanently changed after his surgeries.
C. Defendant’s Experts
Dr. DiFilippo testified that she was a board-certified doctor of internal medicine doctor.
She testified that she retired from her medical practice in 2006. Dr. DiFilippo testified that
cellulitis is a superficial skin and soft tissue infection that is fairly common. Dr. DiFilippo
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testified that cellulitis typically requires antibiotic medication for treatment and it can take up to
three days to stop the infection from progressing. Dr. DiFilippo testified that Keflex, Unasyn,
and other antibiotics are appropriate to treat cellulitis in a hospital setting depending on the
severity of the infection and the patient.
Dr. DiFilippo testified that on the morning of November 4, 1998, 250 milligrams of
Keflex, four times a day, was an appropriate prescription for Charles’s apparent cellulitis because
the infection was mild and based on Charles’s age and kidney function. Dr. DiFilippo opined
that she followed the standard of care in treating Charles’s infection which appeared as cellulitis
on November 4, 1998. Dr. DiFilippo explained that strep and staph bacteria are the most
common causes of cellulitis and that Keflex is used to treat those types of bacteria. Dr. DiFilippo
testified that Charles’s symptoms of low blood pressure, weakness, and chest pain were
consistent with his recent cardiac surgery. She believed she met the standard of care in not
changing the Keflex prescription where she evaluated Charles’s overall condition and based on
the fact that Charles was not toxic.
Dr. Mariusz Gadula testified that he is board certified in internal medicine and was
Charles’s treating physician during the relevant time period. Dr. Gadula testified that Keflex is a
cephalosporin antibiotic that is “very good” for cellulitis skin infections and other infections
caused by strep and staph bacteria. Dr. Gadula testified that strep and staph bacteria are the most
common bacteria that would be expected to cause cellulitis near a chest tube wound. Dr. Gadula
opined that Keflex was an appropriate medication to treat Charles’s apparent cellulitis infection
on November 4 and 5, 1998, and that Keflex is the medication used most often to treat such an
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infection.
Dr. John Andreoni, a board-certified medical doctor specializing in infectious diseases,
testified that he treated Charles in 1998. Dr. Andreoni explained that Charles had developed
necrotizing fasciitis, which is an infection that occurs in the skin, soft tissue, and deeper layers of
the skin. Dr. Andreoni further explained that necrotizing fasciitis destroys cells, requires
multiple surgeries for treatment, and has a high mortality rate.
Dr. Andreoni testified that Keflex is an oral antibiotic that covers skin and soft tissue
infections, including infections caused by E. coli bacteria. Dr. Andreoni testified that Keflex is
commonly used in hospitals to treat cellulitis and his opinion was that it was appropriate for Dr.
DiFilippo to prescribe 250 milligrams of Kefles four times per day to treat Charles’ infection.
Dr. Andreoni testified that a doctor should only treat a patient based upon what the doctor thinks
is going on and avoid causing damage by overtreating a patient.
Dr. Andreoni testified that he was not critical of the doctors who treated Charles between
the morning of November 4 and November 5, 1998, for not changing the Keflex prescription
because the antibiotics must be given time to see if they will stop the infection. Dr. Andreoni
testified that when he examined Charles at 9:30 a.m., on November 5, 1998, Keflex had not
stopped the infection from spreading. As a result, it was time to change medications to account
for other, less common bacteria.
Dr. Andreoni testified that Charles was diagnosed with necrotizing fasciitis after his first
surgery. Dr. Andreoni testified that a culture later revealed that the infection was caused by E.
coli bacteria that was moderately resistant to antibiotics. Dr. Andreoni testified that E. coli
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bacteria was not a common cause of infections such as Charles’s infection, but it did not change
Charles’s treatment. Dr. Andreoni explained that necrotizing fasciitis is treated by multiple
surgeries to remove dead tissue and halt the spread of toxins that kill the tissue. Dr. Andreoni
testified that antibiotic medication plays little role in this treatment and antibiotics alone would
not have cured the necrotizing fasciitis. Dr. Andreoni opined that regardless of the strength or
type of antibiotics prescribed to Charles, the antibiotics alone would not have been successful in
combating the infection because surgical debridement is necessary to treat necrotizing fasciitis.
Dr. Andreoni testified that Charles’s course of treatment would have been the same even if he
had been prescribed Unasyn on November 4, 1998, at 8:30 a.m., instead of Keflex.
Dr. John Sabbia, a board-certified general internist, testified as a retained expert on
defendant’s behalf. Dr. Sabbia explained that cellulitis is a superficial spreading infection of the
skin that can develop around puncture wounds, such as Charles’s chest tube wound. Dr. Sabbia
opined that Dr. DiFilippo met the standard of care with respect to Charles’s treatment on
November 4, 1998, where Dr. DiFilippo took responsibility for his care, took a history, did an
examination, made an impression of what was going on with the patient and treated him, and
ordered other tests to differentiate what else might possibly be going on with the patient.
Dr. Sabbia testified that cellulitis was a reasonable diagnosis for a patient with a chest
tube wound and Keflex was an appropriate antibiotic to treat cellulitis. Dr. Sabbia explained that
cellulitis is typically caused by a staph or strep bacteria and Keflex is used to treat such bacteria.
Dr. Sabbia testified that the 250-milligram dose of Keflex prescribed by Dr. DiFilippo was an
appropriate dose, given Charles’s weight, age, kidney and liver function. Dr. Sabbia testified that
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it was appropriate for Dr. DiFilippo to order the cardiac surgeon to check Charles’s wound
because the surgeon who created the wound is primarily responsible to care for the wound. Dr.
Sabbia also testified that it was appropriate for Dr. DiFilippo to order liver function tests and a
hepatic panel to explore for gallbladder and liver problems. Dr. Sabbia opined that a CBC test
was not needed because Dr. DiFilippo already knew there was an infection and an infectious
disease consultation would have been premature given the small area of infection at the time.
With respect to Dr. DiFilippo’s treatment of Charles on November 5, 1998, Dr. Sabbia
opined that it was within the standard of care to consider a diagnosis of sepsis given the change
in the patient and to order a blood culture and CBC test to rule it out. Dr. Sabbia testified that
Dr. DiFilippo was not required to change the Keflex medication because a doctor has to give
antibiotics a chance to work. Dr. Sabbia also testified that Dr. DiFilippo did not need to order an
infectious disease consultation at that point because one had already been ordered.
Dr. John Flaherty, board certified in internal medicine and infectious diseases, testified as
an expert for defendant. Dr. Flaherty testified that necrotizing fasciitis can sometimes present as
cellulitis because the necrotizing fasciitis infection is deep in the tissue and the only outward
signs of the infection are redness and swelling on the skin’s surface. Dr. Flaherty explained that
both cellulitis and necrotizing fasciitis can spread rapidly, but necrotizing fasciitis is a rare
disease that requires multiple, aggressive debriding surgeries.
Dr. Flaherty testified that 90% of cellulitis infections are caused by staph or strep bacteria
and that cellulitis was a proper diagnosis when Dr. DiFilippo examined Charles at 8:30 a.m., on
November 4, 1998. Dr. Flaherty testified that Keflex was the most commonly used antibiotic to
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treat cellulitis and the 250-milligram dose of Keflex was appropriate for an adult without a
significant infection, who is older with an average body size and a lower kidney function. Dr.
Flaherty opined that Charles’s outcome would not have been different if Unasyn, rather than
Keflex, had been prescribed at 8:30 a.m., on November 4, 1998. Dr. Flaherty explained that
antibiotics would not have stopped the infection from progressing and surgical debridement was
required.
Dr. Flaherty testified that on the morning of November 5, 1998, it was too early to know if
the Keflex and vancomycin treatment was working. Dr. Flaherty explained that cellulitis
commonly gets worse before it gets better and the antibiotics might need several days to work
against the infection. Dr. Flaherty testified that the only hope to treat necrotizing fasciitis is to
recognize it as early as possible and begin debriding surgeries. Dr. Flaherty testified that Charles
was diagnosed with the necrotizing fasciitis infection following his first debriding surgery on
November 6, 1998, and it was later determined that the infection was caused by E. coli bacteria.
Dr. Flaherty opined that E. coli rarely causes cellulitis or necrotizing fasciitis.
Following closing arguments and deliberations, the jury returned a verdict in favor of
defendant. In a written order, the circuit court denied plaintiffs’ posttrial motion for a new trial.
Plaintiffs now appeal.
II. ANALYSIS
A. Evidence of Dr. Bakken’s Licensing Reprimand
Plaintiffs first contend that the circuit court committed reversible error when it allowed
defendant to cross-examine Dr. Bakken concerning a reprimand on his medical license.
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According to plaintiffs, this reprimand was inadmissible where Dr. Bakken had no restriction
placed on his license and the reprimand was unrelated to his professional opinion.
Defendant initially argues that plaintiffs waived this issue for appeal by failing to object
to the question about the reprimand itself and only interposing an objection after the answer was
given and the defense asked the witness about the basis for the reprimand. The record shows that
the following exchange occurred during Dr. Bakken’s cross-examination:
“[DEFENSE COUNSEL]: Doctor, isn’t it true last year your medical license to
practice medicine was reprimanded by the State of Illinois?
[DR. BAKKEN]: There was a letter of reprimand issued because of a case that I
was involved in, that’s correct.
[DEFENSE COUNSEL]: And that reprimand was issued because you failed - -
[PLAINTIFF'S COUNSEL]: Objection.
[THE COURT]: Overruled.
[DEFENSE COUNSEL]: A reprimand was issued because you failed to recognize
the presence of microhematuria in a patient, correct?
[PLAINTIFF'S COUNSEL]: Objection.
[THE COURT]: It’s noted for the record.
[PLAINTIFF'S COUNSEL]: Judge, we do need a side bar.
[THE COURT]: No. You had 45 minutes on this. You may make your record
later. The jury is going home at one hour and four minutes.
[DEFENSE COUNSEL]: I don’t know that you answered that question, Doctor.
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Did you receive that letter of reprimand from the State of Illinois, the Illinois Department
of Professional Regulation for the failure to recognize the presence of microhematuria in
a patient?
[DR. BAKKEN]: Yes.”
Generally, a contemporaneous objection to the evidence at the time it is offered is
required to preserve the issue for review. Simmons v. Garces, 198 Ill. 2d 541, 569 (2002). On
the other hand, to save a question for review, an objection need not be repeated each time similar
matters are presented where the court has previously ruled. Spyrka v. County of Cook, 366 Ill.
App. 3d 156, 165 (2006). Once the court has ruled, a party is entitled to assume that the trial
judge will continue to make the same ruling and that he need not repeat the objection. Spyrka,
366 Ill. App. 3d at 165.
In this case, during recess of Dr. Bakken’s direct examination, defendant advised the
circuit court of her intent to cross-examine Dr. Bakken regarding the reprimand from the Illinois
Department of Professional Responsibility. Plaintiffs objected at that time and argued the
evidence was irrelevant. The circuit court ruled that defendant would be allowed to ask Dr.
Bakken whether he received a reprimand. Then during the cross-examination, the circuit court
denied plaintiffs’ request for a side bar regarding evidence of the reprimand and the court
explained that plaintiffs had “45 minutes on this.” The court concluded by telling plaintiffs to
“make your record later.” While plaintiffs did not make a further record after this exchange,
based on this record, plaintiffs were entitled to conclude that the circuit court would continue to
make the same ruling and were not required to repeat the objection.
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Turning to the merits, plaintiffs, relying on Creighton v. Thompson, 266 Ill. App. 3d 61
(1994), argue that the evidence of Dr. Bakken’s reprimand was inadmissible to challenge his
credibility because no restriction was placed on Dr. Bakken’s practice.
The latitude afforded in cross-examination is within the discretion of the circuit court,
reversible only for a clear abuse of discretion resulting in manifest prejudice to a party.
Creighton, 266 Ill. App. 3d at 69. The principal safeguard against errant expert testimony is the
opportunity of opposing counsel to cross-examine, which includes the opportunity to probe bias,
partisanship, or financial interest. Creighton, 266 Ill. App. 3d at 69.
In Creighton, this court upheld the circuit court’s determination, allowing the defendants
to cross-examine the plaintiff’s expert doctor concerning the current restrictions on his medical
license at the time of his testimony. Creighton, 266 Ill. App. 3d at 69. In Creighton, the circuit
court permitted the jury to be informed of two restrictions on the expert’s medical license,
namely, that the licensing agency could conduct announced and unannounced inspections of his
practice and that a physician-proctor was to review periodically the doctor’s patient records.
Creighton, 266 Ill. App. 3d at 69. This court found the information highly relevant to the
doctor’s credibility because his expert testimony concerned “whether other physicians failed to
exercise the appropriate standard of medical care during the precise time frame in which his
home licensing authority required that his professional practices be audited.” Creighton, 266 Ill.
App. 3d at 69. This court also noted that the circuit court “carefully crafted” its ruling so that the
jury would not be informed of the expert’s criminal convictions or his history of disciplinary
action. Creighton, 266 Ill. App. 3d at 69. Under these circumstances, this court concluded that
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“any prejudice resultant to plaintiff’s case was well warranted.” Creighton, 266 Ill. App. 3d at
69.
In Creighton, this court also distinguished a prior opinion in O’Brien v. Meyer, 196 Ill.
App. 3d 457 (1989). In O’Brien, the appellate court ruled that a medical expert could not be
cross-examined about a previous failure to pass the Illinois licensing examination, since that
information’s prejudicial impact outweighed its scant probative value. O’Brien, 196 Ill. App. 3d
at 464-65. In Creighton, this court distinguished O’Brien on the basis that, after securing his
license, the medical expert’s professional conduct was called into question and was thought to
warrant continuing surveillance. Creighton, 266 Ill. App. 3d at 69-70. This court also
distinguished Poole v. University of Chicago, 186 Ill. App. 3d 554 (1989), which held that
reversal was required where the jury was informed of disciplinary proceedings pending against
an expert. In Creighton, this court noted that no charges were pending against the expert, but
rather his practices were already found sufficiently wanting so as to require professional
oversight. Creighton, 266 Ill. App. 3d at 70.
Other jurisdictions have also held that a medical expert may be cross-examined with
evidence of discipline affecting his or her medical license. See Richmond v. Longo, 27 Conn.
App. 30, 34-40, 604 A.2d 374, 376-79 (1992) (holding that party should have been allowed to
cross-examine physician expert with evidence that his license had been terminated due to his
“mishandling” of cases); Whisenhunt v. Zammit, 86 N. C. App. 425, 358 S.E.2d 114 (1987)
(suspension of physician expert’s staff privileges from two hospitals was properly admitted to
allow the jury to weigh the expert’s testimony).
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Here, plaintiffs maintain that, under Creighton, a physician expert can only be cross-
examined regarding discipline if it resulted in a restriction on his or her practice. However, this
court’s decision in Creighton contains no such specific limitation. Rather, this court determined
that the fact that the physician expert was unable to practice medicine without supervision was
“highly relevant” to his credibility where his testimony pertained to whether other physicians
failed to exercise the appropriate standard of medical care. Creighton, 266 Ill. App. 3d at 69.
Similarly, the jury in this case was informed that Dr. Bakken received a letter of
reprimand from the licensing board for “the failure to recognize the presence of microhematuria
in a patient.” This information was relevant to Dr. Bakken’s credibility because his testimony
concerned whether Dr. DiFilippo exercised the appropriate standard of medical care during her
treatment of Charles. Specifically, Dr. Bakken disagreed with Dr. DiFilippo’s diagnosis on
November 4, 1998, that Charles suffered from “mild cellulitis” at the site of his chest tube wound
based on the fact that there was “redness accompanied by the patient feeling weak and
complaining of pain and having low blood pressure.” Dr. Bakken criticized Dr. DiFilippo for
failing to conduct certain testing and consider additional diagnoses, such as the possibility of
deeper tissue involvement. Dr. Bakken opined that Dr. DiFilippo violated the standard of care by
failing to recognize and diagnose a “systematic infection” and provide a differential diagnosis
which included necrotizing fasciitis. Dr. Bakken testified: “The standard of care required that
Dr. DiFilippo at a minimum obtain a CBC, which is a complete blood count, to determine if the
white count was elevated and the extent of elevation. And the standard of care also required that
Dr. DiFilippo initiate appropriate broad spectrum intravenous antibiotics rather than a very small
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dose of oral Keflex.”
Plaintiffs assert that there was no relevant link between Dr. Bakken’s failure to learn of
microhematuria, or unseen blood in urine, and his opinion that Dr. DiFilippo should have
considered the possibility of a more serious soft tissue infection and treated it with the
appropriate antibiotics. However, the fact that the Illinois Department of Professional Regulation
found it necessary to reprimand Dr. Bakken for the failure to recognize the presence of
microhematuris reflects on Dr. Bakken’s qualifications and had some tendency to lessen his
credibility as an expert. See LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d
806, 822 (2008) (relevant evidence is evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable than it would be
without the evidence). Accordingly, we cannot say that the circuit court abused its discretion in
allowing this evidence.
Furthermore, we note that “it is