In July 2014, Chaya R. Brunk and Raymond Brunk filed an Illinois medical malpractice action against defendants Stephen J. Pineda, M.D., an orthopedic surgeon, and Springfield Clinic, LLP. In June 2015, the plaintiffs filed a second amended complaint against the defendants, alleging Dr. Pineda deviated from the standard of care when he failed to remove a StaXx medical device during plaintiff’s October 2011 spinal surgery when there was incomplete fusion or an unstable fusion which resulted in plaintiff sustaining damage to her spine when the StaXx device migrated into her spinal cord and she suffered injury to her body as a whole. In November 2019, a jury found in favor of the plaintiff and awarded her $1,255,000 in damages.
The defendants appealed, arguing the trial court erred in denying their motion for judgment notwithstanding the verdict or, in the alternative, a new trial, alleging that (1) plaintiff’s expert provided inadequate standard of care testimony which lacked adequate foundation and did not support the verdict, (2) plaintiff failed to establish a prima facie case of proximate cause through her expert witness, and (3) the statute of limitations barred plaintiff’s action because plaintiff failed to meet her burden of proof with regard to the discovery rule.
Illinois Appellate Court Opinion
The Appellate Court of Illinois Fourth District (“Illinois Appellate Court”) stated in its Order filed on October 20, 2021: “The crux of this case is whether defendant deviated from the standard of care during plaintiff’s October 20, 2011, surgery when he failed to reinstrument the spine at the time he removed the screws. As stated above, Dr. Davis testified that defendant deviated from the standard of care when he failed to reinstrument the spine in the face of a “definite pseudarthrosis.” Dr. Davis opined that defendant during the October 2011 surgery should have reinstrumented the screws in the spine or removed the StaXx cage device “and packed bone and have an un-instrumented fusion.””
The Illinois Appellate Court held: “Based on the evidence, we find the trial court properly denied defendants’ motion for judgment notwithstanding the verdict. While Dr. Davis and Dr. Zindrick both opined it would be a deviation of the standard of care to remove the screws if the back is still capable of movement, and thus not solidly fused, the experts offered conflicting testimony regarding whether defendant breached the standard of care. Accordingly, in the present case the jury was uniquely qualified to resolve the conflict between the experts’ opinions. … When viewing the evidence in the light most favorable to plaintiff, we do not find the evidence so overwhelmingly favored defendant that the verdict cannot stand. Thus, the trial court properly denied defendant’s motion for judgment notwithstanding the verdict.”
The Illinois Appellate Court further held: “Based on the record, a reasonable jury could conclude defendant’s failure to reinstrument the cage during the October 2011 surgery where there was not a solid fusion allowed movement which caused the cage to fail and a wafer to go into plaintiff’s spine. We also note the outcome of this case depended upon the credibility of several witnesses and the jury was in the best position to observe the witnesses and assess their credibility. Accordingly, the trial court did not err in denying defendants’ motion for judgment notwithstanding the verdict or, in the alternative, a new trial.”
With regard to the statute of limitations issue raised by the defendants, the Illinois Appellate Court stated: “For purposes of the discovery rule, plaintiff would not have been put on notice of an injury to her spine until she began to feel “unbearable” pain in December 2012. Plaintiff testified she had never experienced that kind of pain before. Further, it was not until February 2013 that she became aware of the cause of her “unbearable” leg pain and that it was a result of “a nonunion with catastrophic failure of the StaXx cage.” Specifically, prior to Dr. VanFleet ordering a CT scan which showed the cage had broken and a wafer had lodged into plaintiff’s spinal canal, plaintiff was unaware of the cause of her pain. Based on the evidence, we find plaintiff filed her cause of action within the statute of limitations. Both the date which plaintiff learned of her injury, December 2012, and the date she learned it may have been wrongfully caused, February 2013, fell within the two-year statute of limitations. Accordingly, where plaintiff met her discovery rule burden of proof, we find the trial court did not err in denying defendants’ motion for judgment notwithstanding the verdict or, in the alternative, a new trial.”
Source Brunk v. Pineda, 2021 IL App (4th) 200424-U.
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