A state appeals court has upheld a medical malpractice wrongful death verdict worth nearly $8 million in the case against a suburban anesthesiologist and his practice over a nerve block procedure that allegedly led to the patient's paralysis and, ultimately contributed to her death.

Kathy Arient and her husband, Terry Arient, sued Dr. Yasser Alhaj-Huseein and Illinois Anesthesia and Pain Associates, S.C., on Dec. 19, 2012, in the aftermath of a nerve block procedure she underwent in October 2012 at the Orland Park Surgical Center, which caused paraplegia. Kathy Arient died June 9, 2014, after a stroke, and Terry Arient on July 20, 2015, amended his complaint to add a wrongful death charge.

Although Cook County Judge Clare McWilliams dismissed the surgical center from the action, a jury found Hussein and IAPA liable for Arient’s injuries and death, awarding more than $7.8 million in damages. In appealing, Hussein and IAPA said McWilliams erred by allowing Arient to question Hussein’s medical privileges to perform the procedure, and barring defendants from making any reference to Kathy Arient’s history of smoking.

In an opinion issued Dec. 1, a divided three-justice panel of the First District Appellate Court rejected the defendants’ appeal. Presiding Justice Thomas E. Hoffman wrote the opinion and Justice Maureen E. Connors concurred; Justice Mathias W. Delort dissented.

The ruling hinged on the argument presented at the trial stage that “Hussein was negligent in one or more of five enumerated acts or omissions.” While Hoffman and Connors agreed with the defendants over the ways in which McWilliams erred, they said those arguments only affected three of the five negligence allegations. The two remaining, Hussein “having injected absolute alcohol into an artery and having failed to place the spinal needles in front of the L-1 vertebral body,” were enough to allow the ruling to stand.

McWilliams should not have overruled the defendants’ objection to the testimony of Dr. Stephen Minore, Hoffman wrote, because Hussein was right that evidence about his surgical privileges “was both irrelevant and predicated on a misinterpretation” of the Ambulatory Surgical Treatment Center Act, which regulates facilities, not individual doctors. Further, Minore’s testimony should have been considered legal opinion, and Arient offered no indication Minore had the specialized knowledge required to enter such opinion as evidence.

Further, Hussein said Kathy Arient’s smoking history was relevant to his decision to recommend the block procedure because of her “long history of treatment with opioid pain killers and that her medical records suggested that she developed a tolerance to opioid drugs which is common in chronic smokers.” Hoffman also explained how keeping that information from the record confused the issue of whether the doctors who testified said smoking was a contributing factor to Raynaud’s disease patients being predisposed to a constriction of the arteries, known as a vasospasm, or left more susceptible to stroke.

Despite those errors, Hoffman wrote, the appeal failed because the defendants never argued smoking was the sole proximate cause of Arient’s vasospasm, stroke or death. He likewise explained why the case is not suitable for a new trial, saying the presence of sufficient evidence to sustain one of the plaintiff’s theories is enough to uphold a lower court’s verdict.

In his dissent, Delort agreed with the findings of fault in McWilliams’ trial conduct, but disagreed on invoking the “general verdict rule” the Illinois Supreme Court described in the 1987 ruling on Witherell v. Weimer, saying the judge’s errors did not in this case produce a fair trial or “reliable result.”

“A trial that is unfair cannot produce a reliable result,” Delort wrote. “A verdict produced from a trial that is fundamentally unfair due to evidentiary errors does not produce a fair and proper determination of the rights, responsibilities, and liabilities of the parties involved.”

Arient is represented in the action by the firm of Motherway & Napleton, of Chicago.

Hussein and IPA are represented by the firm of Taft Stettinius Hollister, of Chicago.

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Cook County Circuit Court Illinois First District Appellate Court Motherway and Napleton Taft Stettinius Hollister

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