                                                                     SECOND DIVISION
                                                                     December 31, 2008




No. 1-07-1962


KAREN GILLESPIE, as Administrator of the Estate of       )    Appeal from the
Kenyudra Gillespie, Deceased,                            )    Circuit Court of
                    Plaintiff-Appellant and              )    Cook County
                    Cross-Appellee,                      )
                                                         )
v.                                                       )
                                                         )
UNIVERSITY OF CHICAGO HOSPITALS, a                       )
Corporation, VICTORY MEMORIAL HOSPITAL, a                )
Corporation, GLYNIS PANKAJ VASHI, SERGEI                 )
SHEVYLYAGIN, CYNTHIA WAIT, YIPING FU, ALAN               )
DAAR, and KENNETH BUETTNER,                              )
                  Defendants                             )
                                                         )
(Glynis Pankaj Vashi,                                    )    Honorable Daniel M.
                   Defendant-Appellee and                )    Locallo,
                   Cross-Appellant).                     )    Judge Presiding.




      PRESIDING JUSTICE KARNEZIS delivered the opinion of the court:

      Plaintiff, Karen Gillespie, as administrator of the estate of Kenyudra Gillespie,

brought this medical negligence action following Kenyudra's death. Defendants

University of Chicago Hospitals, Victory Memorial Hospital, Sergei Shevlyagin, Cynthia

Wait, Yiping Fu, Alan Daar, and Kenneth Buettner either settled with plaintiff or were
1-07-1962


dismissed by plaintiff prior to trial. The circuit court subsequently modified the

settlement agreement over plaintiff's objection. The cause proceeded to trial solely

against defendant Glynis Pankaj Vashi (Dr. Vashi), and the circuit court granted Dr.

Vashi's motion for a directed verdict at the close of plaintiff's case. Plaintiff appeals

from the circuit court's order granting Dr. Vashi's motion for a directed verdict and from

the order modifying the settlement agreement. On appeal, plaintiff contends that (1)

the court erred in granting the motion for directed verdict because the evidence

established a physician-patient relationship between Kenyudra and Dr. Vashi; and (2)

the court erred in modifying the settlement agreement. Dr. Vashi cross-appeals from

the circuit court's order denying her motion to transfer venue. For the following

reasons, we affirm the circuit court's order granting the motion for directed verdict and

the order modifying the settlement agreement.

                                      BACKGROUND

       On September 25, 2001, Kenyudra Gillespie, who was 19 years old, went to the

emergency room at Victory Memorial Hospital at about 6:15 p.m., complaining of

shortness of breath and chest pain. She was initially seen by Dr. Daar. He ordered an

electrocardiogram (EKG), a chest X-ray, blood tests and a lung scan. The blood test

results indicated that the amount of oxygen in Kenyudra's blood was low and she was

anemic. The lung scan showed that she had an enlarged heart, which is also referred

to as cardiomegaly. The chest X-ray showed infiltrates in both lower lobes, which was

abnormal. Her EKG was also abnormal. It showed a fast heart rate and a lack of blood

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flow. Dr. Daar interpreted the EKG results that night but did not believe the results

indicated a heart attack.

       Subsequently, Kenyudra was seen later that night by Dr. Buettner when Dr.

Daar's shift ended. At that time, her heart rate had returned to normal and she was

discharged by Dr. Buettner at 12:55 a.m. on September 26. Dr. Buettner diagnosed

Kenyudra with "musculoskeletal chest pain." The discharge instructions provided that

Kenyudra was to contact her physician or Dr. Vashi for follow-up care.

       Dr. Vashi was the internist on call at the hospital when Kenyudra came to the

emergency room. It was the hospital's procedure that any patient seen in the

emergency room who did not have a primary care physician on staff at the hospital to

be assigned to the internist on call as the patient's attending/admitting physician. The

hospital registration records indicated that plaintiff did not have a primary care

physician on staff at the hospital, so Dr. Vashi was listed on Kenyudra's records as her

attending/admitting physician. While Kenyudra was in the emergency room, the

emergency room doctors did not consult with Dr. Vashi regarding Kenyudra's condition.

Subsequent to Kenyudra's discharge, her tests results from the EKG, lung scan and

laboratory tests were placed in Dr. Vashi's "doctor's box" at the hospital. Dr. Vashi

interpreted the EKG and wrote a report regarding the EKG on September 27. The

report noted that she was unable to rule out a possible heart attack and Kenyudra

would need to be examined to "corroborate" her findings. Two copies of the report

were generated. Dr. Vashi kept one copy and the other copy was placed in plaintiff's

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file. Dr. Vashi sent Kenyudra's insurer a $69 bill for the service. Neither the hospital

nor Dr. Vashi took any further action regarding Kenyudra's care.

       On September 27, Kenyudra went to a Lake County clinic, where she had

previously received prenatal and postnatal care following the delivery of her baby in

July 2001. She complained of a rash, but did not mention shortness of breath or her

visit to the emergency room on September 25. According to the physician's note

regarding Kenyudra's visit to the clinic, the physician listened to Kenyudra's chest and

noted that her lungs were clear and her heart rate and rhythm were regular.

       On November 7, Kenyudra returned to the emergency room at Victory Memorial

Hospital. Dr. Shevlyagin was identified as her attending/admitting physician. She had

experienced shortness of breath and palpitations over the last month, which had

worsened. Kenyudra showed signs of bilateral lung infiltrates, congestive heart failure

and cardiomegaly and was admitted to the hospital. She was treated for pneumonia

with antibiotics. However, she was then transferred to the intensive care unit after her

blood pressure dropped, she had seizures, her heart stopped, and she had to be

resuscitated. Kenyudra was transferred to the University of Chicago Hospitals on

November 10 to receive a heart transplant but died from cardiac failure on November

17. It was ultimately determined that Kenyudra suffered from a rare condition known as

postpartum cardiomyopathy, which is an enlarged and weakened heart after

pregnancy.

       Plaintiff filed this cause of action against defendants alleging medical

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negligence. Plaintiff settled with several defendants and dismissed other defendants

except Dr. Vashi and the cause went to trial against Dr. Vashi. At the close of plaintiff's

case, Dr. Vashi filed a motion for a directed verdict. The motion alleged that plaintiff

could not establish a cause of action for negligence because the evidence did not show

a physician-patient relationship between Dr. Vashi and Kenyudra and, therefore, Dr.

Vashi did not owe Kenyudra a duty. The circuit court agreed and directed a verdict in

Dr. Vashi's favor. Plaintiff now appeals.

                                        ANALYSIS

                                        Negligence

       In a negligence action for medical malpractice, there must be a duty owed by the

defendant to the plaintiff, a breach of duty, an injury proximately caused by the breach,

and resultant damages. Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80, 85

(1996). The determination of whether the parties stood in such a relationship to one

another that the law would impose on the defendant a duty of reasonable conduct for

the benefit of the plaintiff is a question of law to be determined by the court. Kirk v.

Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987). The question of

duty should take into consideration the likelihood of injury, the magnitude of the burden

of guarding against it and the consequences of placing that burden upon the

defendant. Kirk, 117 Ill. 2d at 526.

       A physician's duty is limited to those situations in which a direct physician-

patient relationship exists. Reynolds, 277 Ill. App. 3d at 85. The relationship of

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physician and patient is a consensual relationship in which the patient knowingly seeks

the physician's assistance and the physician knowingly accepts the person as a

patient. Reynolds, 277 Ill. App. 3d at 85. A consensual relationship can also exist

where other persons contact the physician on behalf of the patient. Reynolds, 277 Ill.

App. 3d at 85. However, a physician who gives an informal opinion at the request of a

treating physician does not owe a duty of care to the patient whose case was

discussed. Reynolds, 277 Ill. App. 3d at 85. Additionally, a physician-patient

relationship may exist even in the absence of any meetings between the physician and

the patient, where the physician performs services for the patient. Weiss v. Rush North

Shore Medical Center, 372 Ill. App. 3d 186, 189 (2007).

       In Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80 (1996), the

plaintiff, a minor, was admitted to the hospital and examined by a pediatrician. The

pediatrician contacted another physician by telephone and they discussed the plaintiff's

condition. The other physician agreed to see the patient the next morning if the

treating pediatrician requested him to do so. The other physician did not bill for the

consultation. This court held on appeal that as a matter of law, a telephone conference

between the plaintiff's treating pediatrician and the other physician regarding the

plaintiff's condition did not create a physician-patient relationship between the plaintiff

and the other physician. Reynolds, 277 Ill. App. 3d at 85.

       In Weiss v. Rush North Shore Medical Center, 372 Ill. App. 3d 186 (2007), the

plaintiff was treated in the emergency room by a physician for a mental condition. The

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physician contacted the on-call psychiatrist to arrange for follow-up care for the plaintiff.

The physician discussed the plaintiff's case with the psychiatrist as well as medication

and follow-up care. However, the physician did not consult with the psychiatrist in

order to obtain his opinion about the plaintiff. This court held on appeal that there was

no physician-patient relationship between the plaintiff and the psychiatrist because the

psychiatrist did not perform any services for the plaintiff, did not perform any tests, did

not analyze any test results, did not direct the physician in treating the plaintiff, did not

form any clinical impressions about the plaintiff and did not render a medical opinion

about the plaintiff. Weiss, 372 Ill. App. 3d at 189.

       In Bovara v. St. Francis Hospital, 298 Ill. App. 3d 1025 (1998), the plaintiff was

examined by a cardiologist at the hospital due to his heart disease. The cardiologist

did not review the plaintiff's angiogram, but as part of the usual procedure, gave it to a

"cardiac interventionist" to review. According to the cardiologist, the interventionist

cardiologists were the physicians who made the decision regarding who was to

undergo angioplasty, bypass surgery, or noninterventionist medical care. Two cardiac

interventionists reviewed the plaintiff's angiogram and informed the cardiologist that the

plaintiff was a candidate for angioplasty. The cardiologist also met with the

interventionists and discussed the plaintiff's case. The interventionists did not bill for

their time. Plaintiff underwent an angioplasty procedure and during the procedure went

into cardiac arrest and was unable to be resuscitated. This court held on appeal that

there was a physician-patient relationship between the interventionists and the plaintiff

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because they consulted with the plaintiff's treating cardiologist, reviewed the plaintiff's

angiogram and rendered a medical opinion as to whether the plaintiff was a candidate

for angioplasty. Bovara, 298 Ill. App. 3d at 1031. The court further noted that the

interventionists were more involved with the plaintiff than merely reviewing a film.

Bovara, 298 Ill. App. 3d at 1032.

       In Lenahan v. University of Chicago, 348 Ill. App. 3d 155 (2004), this court found

a physician-patient relationship because the physician had an active role in the

plaintiff's care. Lenahan, 348 Ill. App. 3d at 165. Specifically, the physician provided

services to the decedent, conducted laboratory tests and reviewed test results.

Lenahan, 348 Ill. App. 3d at 164-65.

       To determine whether there was a physician-patient relationship between Dr.

Vashi and Kenyudra, we consider whether the facts presented in this case are more

similar to the facts presented in Reynolds and Weiss or Bovara and Lenahan.

       The facts that weigh in favor of finding no physician-patient relationship as in

Reynolds and Weiss are: the emergency room doctors who treated Kenyudra did not

contact Dr. Vashi at any time for a medical opinion; Dr. Vashi received Kenyudra's test

results and examined her EKG only after Kenyudra was discharged from the hospital;

and Dr. Vashi's EKG report was neither used to assess Kenyudra's condition or treat

Kenyudra nor did any physician rely on it for a diagnosis.

       The facts that weigh in favor of finding a physician-patient relationship are: Dr.

Vashi was the on-call physician when Kenyudra was at the hospital; Dr. Vashi was

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listed as the attending/admitting physician on Kenyudra's medical records; Dr. Vashi

received and reviewed Kenyudra's test results and interpreted her EKG; Dr. Vashi

wrote a report regarding the EKG, which was placed in Kenyudra's file; and, Dr. Vashi

billed Kenyudra's insurer for her services.

       We find that this case is more similar to Reynolds and Weiss because Dr. Vashi

was not involved in Kenyudra's treatment or care. Dr. Vashi's role of interpreting the

EKG and reviewing any other test results came only after Kenyudra was discharged

and her report was not used to diagnose or treat Kenyudra. Additionally, Dr. Vashi's

interpretation of the EKG was based on the same results that the emergency room

doctors had available to them when Kenyudra was in the emergency room. Therefore,

we cannot find that Dr. Vashi was actively involved in Kenyudra's care, as were the

physicians in Bovara and Lenahan. Although we agree with plaintiff that it can fairly be

said that Dr. Vashi did "perform a service" for Kenyudra by interpreting the EKG, and

did bill for providing that service, we find it significant that Dr. Vashi's actions occurred

after Kenyudra's discharge and in no way played a role in Kenyudra's treatment or

care. We conclude that the circuit court's finding of no physician-patient relationship

between Dr. Vashi and Kenyudra proper.

                                    Evidentiary Issues

       Next, plaintiff contends that she was deprived of a fair trial because the circuit

court improperly excluded evidence at trial, including: an affidavit by Dr. Vashi, the

hospital's rules and regulations, plaintiff's expert's testimony that Dr. Vashi was

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Kenyudra's "attending physician," and plaintiff's expert's testimony regarding the Joint

Commission on Accreditation of Hospitals' rules and regulations.

       We note that plaintiff failed to file a posttrial motion. It is well settled that to

preserve an issue for appeal, an objection must be made at trial and the issue must be

raised in a posttrial motion. Crawford County State Bank v. Grady, 161 Ill. App. 3d 332,

339 (1987).

       In plaintiff's reply brief, she maintains that her failure to file a posttrial motion did

not waive review of the evidentiary issues. She argues that Supreme Court Rule

303(a)(1) (210 Ill. 2d R. 303(a)(1)) "allows for direct appellate review as long as the

party seeking the review files a timely notice of appeal." Plaintiff also argues that

because the case ended with a directed verdict rather than a jury verdict, no posttrial

motion was necessary to preserve the evidentiary issues for appeal.

       Plaintiff neither cites to any case law to support her assertions nor did our

research reveal any. We conclude that because plaintiff did not file a posttrial motion,

her claims of evidentiary errors are waived on appeal.

                                    Settlement Allocation

       Lastly, plaintiff contends that the circuit court abused its discretion when it

modified the settlement agreement despite finding that the settlement agreement was

made in good faith.

       Plaintiff entered into a settlement agreement with Victory Memorial Hospital, Dr.

Daar and Dr. Buettner. Originally, the settlement agreement provided that the

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settlement funds, which totaled $1.2 million, were to be allocated $1 million to the

survival count, $100,000 to the wrongful death count, and $100,000 to the family

expense count. The nonsettling defendants filed a motion to dismiss the family

expense count of the complaint, which the court granted. The court modified the

settlement agreement, allocating $700,000 to the survival count and $500,000 to the

wrongful death count. Plaintiff moved to reconsider the court's allocation and, upon

reconsideration, the court allocated $800,000 to the survival count and $400,000 to the

wrongful death count.

       Expenses for loss of earnings and conscious pain and suffering of the decedent

until her death should be apportioned to the survival action and the loss of benefits to

the survivors should be apportioned to the wrongful death claim. Muro v. Abel Freight

Lines, Inc., 283 Ill. App. 3d 416, 420 (1996). The computation and distribution of

losses suffered among these causes of action should relate to the nature of each

action. Muro, 283 Ill. App. 3d at 420. The determination of the fairness and

reasonableness of the apportionment proceeds is within the circuit court's discretion.

Muro, 283 Ill. App. 3d at 419. We will not disturb the circuit court's determination

absent an abuse of that discretion. Cianci v. Safeco Insurance Co. of Illinois, 356 Ill.

App. 3d 767, 781 (2005).

       Plaintiff argues that the court abused its discretion when it revised the terms of

the settlement agreement. Here, the court stated that it would not allocate any

settlement funds to the family expense count because Kenyudra's mother, as the

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administrator of her estate, was not legally liable for any of Kenyudra's expenses

because Kenyudra was an unmarried adult with her minor daughter as her only heir.

Plaintiff argues, citing to Ballweg v. City of Springfield, 114 Ill. 2d 107 (1986), that the

fact that the nonsettling defendants raised a defense to the family expense count

should not affect the terms of the settlement agreement.

       However, the issue in Ballweg was whether the settlement agreement was

proper because the plaintiff's cause of action could have been barred by the statute of

limitations, had such a defense been raised. Ballweg, 114 Ill. 2d at 122. We find

plaintiff's reliance on Ballweg misplaced. Here, the nonsettling defendants' motion to

dismiss the family expense count was brought on the basis that it was not a legally

cognizable claim. Under these circumstances, we find the court's refusal to allocate

any settlement funds to the family expense count proper.

       Additionally, the court revised the allocation between the survival count and the

wrongful death count because the evidence presented to the court indicated that the

period of time for which recovery could be awarded for the survival count was short as

compared with the recovery for the wrongful death count. The court reviewed the

evidence, which indicated that at the time of Kenyudra's hospitalization, Kenyudra was

attending nursing school and was not employed. The court also noted that there was

evidence that Kenyudra did not experience much conscious pain and suffering before

her death. In contrast, the potential recovery for wrongful death by a minor child who

has lost her only parent could be much more significant. Again, under the

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circumstances of this case, we do not find the court's allocation of $800,000 to the

survival action and $400,000 to the wrongful death action to be an abuse of discretion.

Incidently, we note that based on the evidence presented, the court could very well

have determined that a majority of the settlement funds should have been allocated to

the wrongful death count rather than the survival count.

                                      CROSS-APPEAL

       Dr. Vashi notes in her brief that if this court affirms the circuit court's order

granting her motion for a directed verdict, then her cross-appeal is moot and this court

need not address it. Therefore, in light of our determination that the circuit court's order

was proper, we need not address Dr. Vashi's cross-appeal.

       Accordingly, the judgment of the circuit court is affirmed.

       Affirmed.

       SOUTH and CUNNINGHAM, JJ., concur.




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            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT


KAREN GILLESPIE, as Administrator of the Estate of
Kenyudra Gillespie, Deceased,
                    Plaintiff-Appellant and
                    Cross-Appellee,

v.

UNIVERSITY OF CHICAGO HOSPITALS, a
Corporation, VICTORY MEMORIAL HOSPITAL, a
Corporation, GLYNIS PANKAJ VASHI, SERGEI
SHEVYLYAGIN, CYNTHIA WAIT, YIPING FU, ALAN
DAAR, and KENNETH BUETTNER,
                  Defendants

(Glynis Pankaj Vashi,
                   Defendant-Appellee and
                   Cross-Appellant).


                                  No. 1-07-1962

                             Appellate Court of Illinois
                           First District, Second Division

                                December 31, 2008


         PRESIDING JUSTICE KARNEZIS delivered the opinion of the court.

                     SOUTH and CUNNINGHAM, JJ., concur.


                   Appeal from the Circuit Court of Cook County.

                 The Honorable Daniel M. Locallo, Judge Presiding.




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For APPELLANT, The Law Office of Kenneth C. Chessick, M.D. (Kenneth C. Chessick,
M.D., and Magdalena Dworak, of counsel)

For APPELLEE, Smith Amundsen, LLC (Carmel M. Cosgrove, Michael Resis and
Jennifer Stuart, of counsel)




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