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Brax v. Kennedy12/6/2005
On March 17, 1997, the plaintiff, Terri Brax, as the mother and next friend of minor Jonathon Brax (Jonathon), filed a complaint against the defendants, Michael Kennedy, M.D. (Dr. Kennedy), and Surgical Specialists, Ltd. The plaintiff's complaint alleged negligence against both defendants (counts I and III), and sought expenses from both defendants pursuant to section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2002)) (counts II and IV).
On March 5, 2003, a jury returned a verdict in favor of the defendants. The plaintiff appeals, arguing the trial court erred when it (1) instructed the jury using the long form of Illinois Pattern Jury Instructions, Civil, No. 12.05 (1995), (hereinafter IPI Civil (1995), No. 12.05); (2) failed to instruct the jury as to increased risk of future harm; and (3) allowed Dr. Kennedy to provide an undisclosed opinion in violation of Supreme Court Rule 213 (see Official Reports Advance Sheet No. 8 (April 17, 2002)). We affirm the judgment below.
BACKGROUND
On August 21, 1995, Jonathon began to feel sick with complaints of a sore throat and stomach pain. Over the course of the next 24 hours, he suffered from nausea and vomiting and his abdominal pain worsened.
On August 22, Mrs. Brax took Jonathon to Northwest Community Hospital's Urgent Care Center (Northwest) in Schaumburg, Illinois . At Northwest, Jonathon was treated by Dr. Bijan Farah, a board-certified emergency room physician. Dr. Farah diagnosed Jonathon with appendicitis. Following his diagnosis, Dr. Farah spoke with Jonathon's pediatrician and coordinated with Dr. Kennedy to transfer Jonathon to the Hoffman Estates Medical Center (Hoffman Medical) for a surgical consultation.
At Hoffman Medical, Dr. Kennedy examined Jonathon in the emergency room. Dr. Kennedy found Jonathon had a soft abdomen, with tenderness in the right-lower quadrant, a sign of appendicitis. Dr. Kennedy also interviewed Mrs. Brax and Jonathon to get an accurate picture of Jonathon's symptoms. Dr. Kennedy was made aware Jonathon suffered from nausea, vomiting, severe abdominal pain, poor appetite, and fever. However, Jonathon's complaints of abdominal pain lessened while being examined by Dr. Kennedy. Tests revealed that Jonathon had an elevated white blood cell count of 180,000. In Dr. Kennedy's experience with appendicitis, the white blood cell count typically ranges from 10,000 to 15,000, while a more elevated white blood cell count did not provide for a specific diagnosis. Based on Jonathon's symptoms, Dr. Kennedy determined that Jonathon was suffering either from gastroenteritis or from acute appendicitis. Dr. Kennedy specifically noted that Jonathon's vomiting and nausea, prior to his abdominal pain, led him to lean toward a diagnosis of gastroenteritis.
To determine the cause of Jonathon's symptoms, Dr. Kennedy ordered a lower GI series, which included a barium enema. In his deposition, Dr. Kennedy described a barium enema as a radiographic contrast study wherein contrast is introduced through a small rubber catheter inserted through the anus and into the rectum. The contrast goes around the entire length of the colon to the right side of the lower abdominal region, to the appendix. Dr. Kennedy testified that with a barium enema, there are three findings that suggest appendicitis: (1) non-visualization of the appendix, (2) inflammatory change on the cecum, and (3) irritation and displacement of the surrounding small intestinal loops. Dr. Kennedy relied on the lower GI series to rule out appendicitis as the cause of Jonathon's abdominal pain.
Dr. Timothy Tully, a radiologist, interpreted the results of the barium enema in real time, as the
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