Walton v. Dirkes

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Walton v. Dirkes

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-0461 Rel

Case Date: 01/27/2009

Preview:FIRST DIVISION January 27, 2009

No. 1-08-0461 LEAH WALTON, Administrator of the Estate of TREVOR P. WALTON, Deceased, Plaintiff-Appellant, v. RICHARD V. DIRKES, M.D., Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

Honorable Deborah M. Dooling, Judge Presiding.

JUSTICE WOLFSON delivered the opinion of the court: The question in this medical malpractice case is whether the plaintiff presented enough evidence to establish a causal connection between the defendant doctor's negligent failure to order a certain blood test and the death of Trevor Walton. jury thought so, but the trial judge entered a judgment notwithstanding the jury's verdict. We reverse the trial judge's The

decision and remand this cause for a hearing on any remaining post-trial issues. FACTS On April 5, 1999, Trevor Walton went to defendant Dr. Richard Dirkes, his primary care physician, complaining of congestion and a sore throat for the past three weeks. Walton

had puffy nasal membranes, no swollen lymph nodes, and his lungs were clear. Defendant told Walton he probably either had

1-08-0461 allergies or a viral infection. Walton was instructed to call if

his symptoms persisted or increased in severity after three days. Defendant did not order a complete blood count ("CBC"). On May 3, 1999, Walton returned to defendant's office complaining of new symptoms, including blood-tinged mucus, pain in his side, abdomen and shoulders, bumps on his head, and difficulty breathing and sleeping. Defendant was diagnosed with

chronic rhinitis with pharyngitis--inflammation of the throat. Defendant did not order a CBC. On May 8, 1999, Walton was taken to Loyola University Hospital's emergency department and treated by Dr. Margaret Grano. Dr. Grano ordered a CBC, which revealed Walton had a The normal range for

white blood cell count of over 540,000.

white blood cells in a healthy human adult is between 5,000 and 10,000. After Dr. Grano consulted with Dr. John Godwin, a

hematologist at Loyola, defendant was diagnosed with acute lymphoblastic leukemia ("ALL"). An emergency leukophoresis

treatment lowered Walton's white blood cell count to around 80,000. 1999. Leah Walton, administrator of Trevor Walton's estate, filed a medical malpractice lawsuit, alleging defendant negligently failed to order a CBC on April 5, 1999, and May 3, 1999. Walton died of cardiac arrest related to ALL on May 9,

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1-08-0461 Following a jury trial, plaintiff was awarded $3,627,113 in damages. In his post-trial motion, defendant moved for judgment

notwithstanding the verdict, or, in the alternative, a new trial. The trial court entered judgment notwithstanding the verdict in defendant's favor, finding: "Here, plaintiff presented no testimony as to what type of specialist should have been consulted to review the CBC results nor was there any testimony as to what that specialist would have seen in the hypothetical CBC results that would indicate ALL. No medical expert testified how a CBC

interpreted by anyone would indicated that decedent had ALL. A lack of testimony

linking Dr. Dirkes' failure to do a CBC with expert testimony indicating how a diagnosis of ALL could be made from a CBC taken on April 5, 1999, or on May 3, 1999, creates a gap in the evidence of proximate cause fatal to plaintiff's case. Without the testimony

discussed above, Dr. Brown's bare assertion that Dr. Dirkes' failure to do a CBC at either office visit caused harm to Trevor

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1-08-0461 Walton is mere conjecture. Therefore,

plaintiff failed to prove proximate causation, and essential element of plaintiff's prima facie case, and judgment notwithstanding the verdict is proper." DECISION I. Judgment Notwithstanding the Verdict Plaintiff contends the trial court erred in entering a judgment notwithstanding the verdict in defendant's favor. Specifically, plaintiff contends the expert testimony contained in the record sufficiently supported the jury's verdict. Judgment non obstante veredicto, or judgment n.o.v., is appropriate where " `all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.' " Townsend v. University of Chicago Hospitals, 318 Ill.

App. 3d 406, 408, 741 N.E.2d 1055 (2001), quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). Judgment n.o.v. is appropriate if plaintiff fails to

prove an essential element of a negligence action, including proximate cause. Townsend, 318 Ill. App. 3d at 408; Suttle v.

Lake Forest Hospital, 315 Ill. App. 3d 96, 102, 733 N.E.2d 726 (2000). Our review of an order granting judgment n.o.v. is de

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1-08-0461 novo. Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill.

App. 3d 967, 972, 691 N.E.2d 1 (1997). A plaintiff in a medical malpractice case must prove: "(1) the standard of care against which the medical professional's conduct must be measured; (2) the defendant's negligent failure to comply with that standard; and (3) the defendant's negligence proximately caused the injuries for which the plaintiff seeks redress." Sunderman v. Agarwal, 322 Ill. App. 3d 900, 902, 750 The central issue in this case turns on

N.E.2d 1280 (2001).

whether plaintiff adequately established defendant's allegedly negligent failure to order a CBC was a proximate cause of Walton's injuries. Proximate cause must be established by expert testimony to a reasonable degree of medical certainty. Susnis v. Radfar, 317

Ill. App. 3d 817, 826-27, 739 N.E.2d 960 (2000); Aguilera, 293 Ill. App. 3d at 975. Any causal connection between treatment, or

a delay in treatment, and the claimed injury "must not be contingent, speculative, or merely possible." App. 3d at 976. Aguilera, 293 Ill.

While the plaintiff's burden of proof remains

the same, our supreme court has recognized proximate cause may be established by evidence that the defendant's negligent conduct "increased the risk of harm" to the patient or "lessened the effectiveness" of the patient's treatment. Holton v. Memorial

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1-08-0461 Hospital, 176 Ill. 2d 95, 104-05, 679 N.E.2d 1202 (1997). In Aguilera, we considered whether the plaintiff failed to present any evidence of proximate cause in a wrongful death medical malpractice action. Aguilera visited an emergency room He

with complaints of numbness on the left side of his body.

began suffering seizures shortly after being admitted to the hospital. A CT scan revealed a massive cerebral hemorrhage. At trial

Aguilera lapsed into a coma and died three days later.

the plaintiff, Aguilera's wife, offered testimony from two expert witnesses that the emergency room physician should have ordered an immediate CT scan, given Aguilera's condition. Dr. Hamilton, the emergency medicine expert, testified the delayed CT scan "definitely related" to Aguilera's death. Aguilera, 293 Ill. App. 3d at 969. Dr. Hamilton admitted,

however, that even assuming Aguilera received a prompt CT scan he would have deferred to a neurosurgeon to decide whether surgical intervention was necessary. The plaintiff's neurology expert,

Dr. Vuckovich, testified an early CT scan was critical not only to permit effective treatment of the patient, but also to determine the precise location and size of the hemorrhage while still treatable. Dr. Vuckovich did not know, however, whether

surgical intervention would have been ordered had a prompt CT scan been administered. The trial court entered judgment

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1-08-0461 notwithstanding the verdict for the defendant. Affirming the judgment n.o.v., we held: "The absence of expert testimony that, under the appropriate standard of care, an analysis of an earlier CT scan would have led to surgical intervention or other treatment that may have contributed to the decedent's recovery creates a gap in the evidence of proximate cause fatal to plaintiff's case. Plaintiff failed to offer evidence to a reasonable degree of medical certainty that the alleged negligent delay in administering the CT scan lessened the effectiveness of the medical treatment given to Aguilera." at 975. No evidence supported the plaintiff's experts' opinion that the negligent delay in administering the CT scan lessened the effectiveness of treatment. Aguilera, 293 Ill. App. 3d at 974. Aguilera, 293 Ill. App. 3d ***

We held "[w]hen there is no factual support for an expert's opinion, the conclusions alone do not create a question of fact." Aguilera, 293 Ill. App. 3d at 974. In Townsend, the plaintiff contended an imaging study should have been performed in the emergency room to diagnose a urinary tract obstruction. Dr. Leslie and Dr. Hancock, plaintiff's

experts, both testified the defendant deviated from the standard

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1-08-0461 of care. When Dr. Leslie was asked what the defendant would have

done if she had complied with the standard of care and immediately ordered an imaging study, Dr. Leslie said "[s]he would call another type of physician once she made the diagnosis." On cross-examination, Dr. Leslie said an imaging

test would have increased Puckett's chance of survival, even if it may not have saved her life. Dr. Hancock testified Puckett's

chance of survival would approach zero without having the obstruction removed. She would have had a 40 to 60 percent

survival rate if the obstruction had been diagnosed and treated in the emergency room. On cross-examination, the defendant's

attorney asked Dr. Hancock the following questions: "Q: Now, it's your opinion that had she [the defendant] ordered this test, a [kidney stone] might have been seen *** right? A: It might have been seen at the location of the stone of the ureter [found at Puckett's autopsy]. Q: You further testified that if it had been identified, it would require immediate attention, correct? A: Yes. Q: You're not the type of doctor that

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1-08-0461 would provide that next intervention, are you? A: No, that's correct. Q: What type of doctor would do that? A: One of two types, a urologist or an interventional radiologist. Q: Both of which are outside your area of expertise, correct? A: Yes." Considering Aguilera, we asked whether the record contained any evidence to support the opinion of the plaintiff's experts that the negligent delays

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