Failure to diagnose aneurysm – Wrongful Death

Jury Instructions-IL > Medical Malpractice > Failure to diagnose aneurysm – Wrongful Death

Sandra Gamperl as Administrator for Richard Gamperl, Deceased v. Dr. James Rydell and J.R. Nephrology & Associates, Inc., 09 L 3695

Death from failure to diagnose aneurysm

Fall of 2012 wrongful death/medical malpractice matter where decedent went to emergency room with acute abdominal pain diagnosed after CT scan of kidney as renal dissection by defendant-doctor who prescribed anti-coagulants (Heparin and Coumadin). Slight sentinel headache became severe 3 days prior to death with symptoms of high blood pressure, anxiety, and sensitivity to light which plaintiff’s claim required CT scan of brain for suspicion of a brain aneurysm. Instead, defendant prescribed morphine and vicodine without relief of effect with wax and waning headaches until decedent “coded” and died about a week after admission. Plaintiff claimed cause of death was a failure to do a timely CT scan of the brain to diagnose the aneurysm which would have led to interventionist surgical repair to avoid the eventual rupture. The defendants countered that the charted symptoms did not indicate an aneurysm, and that other health care professions who accountable for care failed to identify a problem; and that even if the aneurysm was diagnosed 3 days before death, the eventual surgery would not have been in time to prevent death.

IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation or an individual, should receive your same fair consideration.

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 – Evidence Deposition

The testimony of Dr. Edward Feldmann was presented by video tape. You should give this testimony the same consideration you would give it had the witness personally appeared in court.

IPI 2.02 Evidence Admitted for a Limited Purpose (Modified by Court)

Cross-examination utilizing deposition testimony of witnesses who were not called at trial, but whose depositions were reviewed by witnesses, is to be considered by you only as it relates to evaluating the trial witness’ opinions and/or basis thereof.

The reviewed depositions should not be considered by you for any other purpose.

IPI 3.03 Liability Insurance

Whether a party is insured has no bearing on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.

If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict, the court will make whatever adjustments are necessary in this regard.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.08 Opinion Testimony

You have heard a witnesses give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such persons have given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witnesses’ qualifications, and all of the other evidence in the case.

12.05 Negligence—Intervention of Outside Agency

If you decide that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.

However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendants, then your verdict should be for the defendants.

IPI 15.01 – Proximate Cause

When I use the expression “proximate cause,” I mean a cause which, in natural or probable course of events, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.

IPI 20.01 – ISSUES – Negligence

The plaintiff claims that Richard Gamperl was injured and died, and that the defendants were negligent in one or more of the following respects:

Failing to obtain a detailed headache history from the Gamperls; or

Failing to recognize the significance of anticoagulation medication and headache in Richard Gamperl; or

Failing to recognize the signs and symptoms of a subarachnoid bleed; or

Failing to obtain a CT scan of Richard Gamperl’s brain in a timely manner; or

Failing to recognize the significance of fibromuscular dysplasia and headache in Richard Gamperl.

The plaintiff further claims that one or more of the foregoing was a proximate cause of Richard Gamperl’s injuries and death.

The defendants deny that they did any of the things claimed by the plaintiff, deny that they were negligent in doing any of the things claimed by the plaintiff and deny that any claimed act or omission on the part of the defendants was a proximate cause of the injury to and death of Richard Gamperl.

The defendants further deny that Richard Gamperl was injured or sustained damages to the extent claimed.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

IPI B21.02 BURDEN

The plaintiff has the burden of proving each of the following propositions:

First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that Richard Gamperl was injured and died;

Third, that the negligence of the defendant was a proximate cause of the injury to and death of Richard Gamperl.

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendants.

IPI 30.01 et seq [Survival Act]

There are Two Counts in the complaint at law.

Count I – The Survival Act

Count II – The Wrongful Death Act

If you decide for the plaintiff on the question of liability under Count I, The Survival Count, you must then fix the amount of money which will reasonably and fairly compensate the estate of Richard Gamperl for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendants during the period between the time of the decedent’s injuries and the time of his death, taking into consideration the nature, extent, and duration of the injury:

The pain and suffering experienced as a result of the injuries.

The loss of a normal life experienced.

30.04.02 Loss of a Normal Life—Definition

When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

IPI 31.04 [Wrongful Death Act]

If you decide for the plaintiff on the question of liability under Count II, The Wrongful Death Act, you must then fix the amount of money which will reasonably and fairly compensate the widow and son of the decedent for the “pecuniary loss” proved by the evidence to have resulted to the widow and son of the decedent. “Pecuniary loss” may include loss of money, benefits, goods, services, society and sexual relations.

[INSERT: IPI 31.11 Damages—Loss of Society—Definition

When I use the term “society” in these instructions, I mean the mutual benefits

that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.

Where a decedent leaves a widow and child, the law recognizes a presumption

that the widow and child have sustained some substantial pecuniary loss by reason

of the death. The weight to be given this presumption is for you to decide from the evidence in this case.

In determining pecuniary loss, you may consider what the evidence shows concerning the following:

What money, benefits, goods, and services the decedent customarily contributed in the past;
What money, benefits, goods, and services the decedent was likely to have contributed in the future;
Decedent’s personal expenses and other deductions;
What instruction, moral training, and superintendence of education the decedent might reasonably have been expected to give his child had he lived;
His age;
His sex;
His health;
His habits of industry, sobriety, and thrift;
His occupational abilities;
The relationship between John Gamperl and Richard Gamperl.
The marital relationship that existed between Sandra Gamperl and Richard Gamperl.

Sandra Gamperl is not entitled to damages for loss of Richard Gamperl’s society and sexual relations after May 11, 2004.

[INSERT] IPI 31.07 Measure of Damages—Wrongful Death—Factors Excluded

In determining pecuniary loss you may not consider the grief or sorrow of the next of kin, Sandra Gamperl and John Gamperl.

31.12/13/34.02/34.01 (Modified) Discount of Future Damages—Wrongful Death Case– Mortality Tables as Evidence of Damages

Under Count II, The Wrongful Death Act, if you find that the plaintiff is entitled to damages arising after the death of Richard Gamperl because of loss of society or loss of companionship or sexual relations or the likelihood to sustain pecuniary losses as a result of his death, then you must determine the amount of these damages after his death on October 17, 2001.

If these damages are permanent in nature as to John Gamperl, then in computing these damages you may consider how long his father, Richard Gamperl, the deceased, was likely to live.

If these damages are permanent in nature as to Sandra Gamperl, then in computing these damages you cannot award damages to her beyond May 11, 2004.

According to a table of mortality in evidence, the life expectancy of a male person aged 44 years, like Richard Gamperl, is 34.5 years; and that of a male person aged 21 years, like John Gamperl, is 55.9 years. These figures are not conclusive. They are the average life expectancies of persons who have reached those ages. They may be considered by you in connection with other evidence relating to the probable life expectancies of the decedent and his next of kin including evidence of the decedent’s occupation, health, habits and activities, bearing in mind that some persons live longer and some persons live less than the average.

In calculating the amount of these pecuniary losses consisting of money, benefits, goods or services, you must determine their present cash value. Present cash value means the sum of money needed now which, together with what that sum may reasonably be expected to earn in the future, will equal the amounts of those pecuniary losses at the times in the future when they will be sustained.

Damages for loss of sexual relations and loss of society are not reduced to present cash value.

IPI 31.09 Modified

The plaintiff in this case is: Sandra Gamperl as Administrator for Richard Gamperl, Deceased

The plaintiff, Sandra Gamperl, brings this action in a representative capacity by reason of her being administrator of the estate of Richard Gamperl, deceased. She represents herself and John Gamperl as the widow and next of kin of the deceased, and the estate of the deceased. They are the real parties in interest in this lawsuit, and in that sense are the real plaintiffs whose damages you are to determine if you decide for the administrator of the estate of Richard Gamperl.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for the defendants on the question of liability, you will have no occasion to consider the question of damages.

IPI 50.01 Principal Sued But Not Agent—No Issue as to Agency

The defendants in this case are: Dr. James Rydel and

J.R. Nephrology & Associates

The defendants are sued as principal and agent. The defendant, J.R. Nephrology & Associates, is the principal and the defendant James J. Rydel, M.D. is its agent. If you find that the defendant, James J. Rydel, M.D., is liable, then you must find that the defendant, J.R. Nephrology & Associates, is also liable. However, if you find that James J. Rydel, M.D. is not liable, then you must find that J.R. Nephrology & Associates is not liable.

105.01 Duty of a Non–Specialist Professional—Professional Negligence

A nephrologist must possess and use the knowledge, skill, and care ordinarily used by a reasonably careful nephrologist. The failure to do something that a reasonably careful nephrologist would do, or the doing of something a reasonably careful nephrologist would not do, under circumstances similar to those shown by the evidence, is “professional negligence”.

The phrase, “deviation from the standard of care” means the same thing as “professional negligence”.

The law does not say how a reasonably careful nephrologist would act under these circumstances. That is for you to decide.

In reaching your decision, you must rely upon opinion testimony from qualified witnesses and evidence of professional standards. You must not attempt to determine how a reasonably careful nephrologist would act from any personal knowledge you may have.

IPI B45.01 – FORMS OF VERDICT

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The plaintiff in this case is: Sandra Gamperl as Administrator for Richard Gamperl, Deceased

The defendants in this case are: Dr. James Rydel and

J.R. Nephrology & Associates

If you find for Plaintiff and against the Defendants, then you should use

Verdict Form A.

If you find for the Defendants and against the Plaintiff, then you should use Verdict Form B.

IPI B45.01.A – VERDICT FORM A

VERDICT FORM A

We, the jury, find for the Plaintiff and against the Defendants. We assess the damages as follows:

As to Count I – Survival Act, we find that the total amount of damages suffered by the Plaintiff as a proximate result of the occurrence in question is itemized as follows:

Pain and Suffering to Richard Gamperl $___________________

The Loss of Normal Life to Richard Gamperl $___________________

TOTAL AS TO COUNT I $___________________

As to Count II – Wrongful Death, we find that the total amount of damages suffered by the Plaintiff as a proximate result of the occurrence in question is itemized as follows:

Loss of financial support, benefits, goods

and services to John Gamperl $___________________

Past loss of society to the widow,

Sandra Gamperl through May 11, 2004 $___________________

Loss of society to the son, John Gamperl $___________________

TOTAL AS TO COUNT II $___________________

TOTAL DAMAGES AS TO COUNTS I AND II ARE $______________________

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[Signature Lines ]

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(Foreperson)

VERDICT FORM B

We, the jury, find for the Defendants and against the Plaintiff.

[Signature Lines ]

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(Foreperson)