June 18, 2001

No. 2--00--0583

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Plaintiff, Robert Sunderman, special administrator of theestate of Janet Sunderman, appeals from the circuit court of LakeCounty's order granting summary judgment in favor of defendantsHwaja I. Rhee, M.D., U. Khin, M.D., and Waukegan PathologyAssociates, S.C. (collectively, pathology defendants). Plaintiff'scause of action against another defendant, Mahesh Agarwal, M.D.,remains. The trial court ruled pursuant to Supreme Court Rule304(a) (155 Ill. 2d R. 304(a)) that there was no just reason todelay enforcement or appeal of the final judgment in favor of thepathology defendants. Plaintiff contends that the trial courterroneously determined that a causal connection was lacking betweenthe pathology defendants' alleged negligence and the injuries ofthe decedent, Janet Sunderman (Janet).

The second amended complaint alleged that in April 1997 Janetsaw Dr. Agarwal, a pulmonologist, for diagnosis and treatment of asuspected mass in her right lung. Dr. Agarwal performed a biopsyof the mass in May 1997. The second amended complaint furtheralleged that defendant Rhee was present when Dr. Agarwal performedthe biopsy. Defendants Rhee and Khin examined the biopsy specimenand prepared a report which, according to plaintiff, erroneouslyinterpreted the specimen as negative for malignancy. In March1998, Janet was diagnosed with terminal lung cancer, which hadmetastasized to her bones. She died on June 10, 2000. Plaintiff'scause of action seeks damages for the delay in the diagnosis andtreatment of Janet's cancer occasioned by the pathology defendants'allegedly erroneous report.

The second amended complaint alleged that the pathologydefendants were negligent because they (1) "erroneously interpretedthe microscopic examination of the material removed by biopsy from [Janet's] lung as negative for malignancy"; and (2) "failed to makea pathological diagnosis of adenocarcinoma." Although not setforth in the second amended complaint, plaintiff also contends thatDr. Rhee was negligent in failing to ensure that Dr. Agarwalobtained sufficient cellular material during the biopsy procedureto allow the pathologists to make a conclusive diagnosis. Thediagnosis set forth in the pathologists' report stated:

"Scant cellular material with a few atypical epithelial cellsinconclusive for malignancy (please see 'Comment' above)."

The "Comment" section of the report stated:

"A few atypical epithelial cells seen in the scant cellularmaterial are inconclusive for malignancy. The possibility ofmalignancy cannot be completely excluded based on the scantcellular material submitted. Correlation with physicalfindings and further diagnostic workup would be advisable. The slides are seen in consultation with Dr. U. Khin."

In her evidence deposition, Janet testified that when she metwith Dr. Agarwal following her May 1997 biopsy he told her that shedid not have cancer and her options were to come back in threemonths for a CT scan, undergo a bronchoscopy, or have the massremoved. She testified that Dr. Agarwal did not read to her theportion of the pathology report that indicated that the possibilityof malignancy could not be completely excluded. Janet testifiedthat if she had heard that portion of the report she would haveasked Dr. Agarwal to immediately perform additional tests orsurgery.

Dr. Agarwal testified in his discovery deposition that he feltthe biopsy report strongly indicated that Janet had a malignantmass in her lung. Dr. Agarwal confirmed that he gave Janet threetreatment options. Contrary to Janet's testimony, however, Dr.Agarwal testified that he recommended surgery to remove the mass. Dr. Agarwal stated that he gave Janet options rather than insistingon surgery because he felt that all of the options should bediscussed and the patient should participate in the decision-makingprocess.

The pathology defendants filed motions for summary judgment inwhich they argued that, based on the testimony of Janet and Dr.Agarwal, there was no genuine issue of material fact as to whetherthe pathology report was a proximate cause of the delay indiagnosing and treating Janet's cancer. The trial court grantedthe pathology defendants' motions for summary judgment, and thisappeal ensued.

Summary judgment is appropriate when the pleadings,depositions, admissions on file, and affidavits, if any,demonstrate that no genuine issue of material fact exists and thatthe movant is entitled to judgment as a matter of law. 735 ILCS5/2--1005(c) (West 1998). A court should not grant summaryjudgment unless the right of the moving party is clear and freefrom doubt. Gauthier v. Westfall, 266 Ill. App. 3d 213, 219(1994). When ruling on a motion for summary judgment, courtsshould construe the pleadings, depositions, admissions, andaffidavits strictly against the movant and liberally in favor ofthe respondent. Gauthier, 266 Ill. App. 3d at 219. While thenonmoving party need not prove his case at the summary judgmentstage, he must present a factual basis that would arguably entitlehim to a judgment. Gauthier, 266 Ill. App. 3d at 219. If thenonmoving party cannot establish an essential element of his causeof action, summary judgment is proper. Gauthier, 266 Ill. App. 3dat 220. Our review of an order granting summary judgment is denovo. Duran v. Cullinan, 286 Ill. App. 3d 1005, 1010 (1997).

A plaintiff in a medical malpractice case must prove thefollowing elements: (1) the standard of care against which themedical professional's conduct must be measured; (2) thedefendant's negligent failure to comply with that standard; and (3)that the defendant's negligence proximately caused the injuries forwhich the plaintiff seeks redress. Duran, 286 Ill. App. 3d at1010. In the case before us, the pathology defendants argue thatany alleged negligence in obtaining the biopsy specimen orinterpreting that specimen did not cause the delay in diagnosingJanet's cancer. We are mindful that proximate cause is ordinarilya factual question for a jury to decide. However, when there is nomaterial issue of fact or only one conclusion is clearly evident,proximate cause may be decided as a matter of law. Williams v.University of Chicago Hospitals, 179 Ill. 2d 80, 88 (1997).

After a careful review of the record and the relevantauthority, we agree that summary judgment was proper. Even if weassume that the pathology defendants breached the standard of carein interpreting the biopsy specimen, the testimony of both Janetand Dr. Agarwal establishes that the breach did not proximatelycause the delay in diagnosis. Dr. Agarwal testified that afterreviewing the biopsy report he "strongly felt that [Janet] had [a]malignant tumor in her lung." When asked why he gave Janet theoptions of waiting three months for a repeat CT scan or undergoinga bronchoscopy rather than insisting on immediate surgery, Dr.Agarwal responded that "all the options should be discussed" andthe patient should participate in the decision making. Dr. Agarwaldid not testify that his treatment of Janet would have been anydifferent if the biopsy report had specifically stated that themass was malignant. On the contrary, Dr. Agarwal believed, basedon the report, that the mass was malignant, and he suggestedtreatment options based on that belief. Consequently, neither thepathology report nor the biopsy procedure proximately caused thedelay in diagnosing and treating Janet's cancer.

This case is analogous to Gill v. Foster, 157 Ill. 2d 304(1993), and Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7(1999). In Gill, the supreme court held that the defendanthospital was entitled to summary judgment because the plaintifffailed to establish that a hospital nurse's alleged negligenceproximately caused the plaintiff's injuries. Gill, 157 Ill. 2d at311. The nurse in Gill failed to tell the plaintiff's doctor thatthe plaintiff had been complaining of chest pain. Gill, 157 Ill.2d at 309. However, the defendant doctor's progress notesindicated that the plaintiff had advised him that he wasexperiencing chest pain. Gill, 157 Ill. 2d at 309-10. Because thedoctor was already aware of the plaintiff's complaints, the courtheld that any failure by the nurse to communicate those complaintsdid not proximately cause the plaintiff's injuries. Gill, 157 Ill.2d at 311.

In Seef, the plaintiffs asserted that employees of IngallsMemorial Hospital committed several breaches of the standard ofcare in connection with monitoring the plaintiffs' unborn baby forsigns of fetal distress. Seef, 311 Ill. App. 3d at 16. Thedefendant doctor testified that he would not have done anythingdifferently even if the nurses had notified him earlier of theinformation contained on the fetal monitoring strips. Seef, 311Ill. App. 3d at 19. Consequently, the court held that any breachof the standard of care by the nurses did not cause the death ofthe plaintiffs' child. Seef, 311 Ill. App. 3d at 19.

Similarly, in the case at bar, the testimony of Dr. Agarwalestablished that, regardless of whether the pathology reportdefinitively stated that the biopsy specimen was malignant, hebelieved that the mass was malignant and recommended treatmentaccordingly. Thus, no question of fact exists as to whether Dr.Agarwal would have done anything differently if the report had beendifferent.

Janet's own testimony also establishes that the report wassufficient to cause her to seek additional treatment. Shetestified unequivocally that if she had heard the portion of thereport that stated that malignancy could not be ruled out and thatfurther testing was needed, she would have sought additionaltesting immediately or had the mass removed. Plaintiff contendsthat a question of fact exists as to how Dr. Agarwal communicatedthe information in the pathology report to Janet. While thisappears to be true, based on Dr. Agarwal's and Janet's conflictingtestimony, this question of fact goes to Dr. Agarwal's allegednegligence, not that of the pathology defendants. There is noallegation in the second amended complaint that the pathologydefendants had a duty to communicate the information contained intheir report to Janet.

Plaintiff further contends that it was error for the trialcourt to grant summary judgment to the pathology defendants beforeplaintiff had disclosed and presented medical experts. Thisargument fails because no expert can testify regarding what Dr.Agarwal's mental state was or contradict Dr. Agarwal's testimonyregarding what he thought after reading the biopsy report. SeeSeef, 311 Ill. App. 3d at 16. Consequently, no expert testimonycould negate the evidence that the treatment options Dr. Agarwalpresented were based on his belief that the mass in Janet's lungwas cancerous.

Last, we address plaintiff's contention that the court shouldnot have granted summary judgment to the pathology defendantsbecause at trial Dr. Agarwal may now point to the pathologydefendants' alleged negligence as the cause of Janet's injuries andthereby escape liability. This argument lacks merit for tworeasons. Practically speaking, we fail to see how Dr. Agarwalcould foist the blame upon the pathology defendants after hetestified that he felt the biopsy report indicated cancer. Further, we are aware of no case law that requires keeping adefendant in a case after it has been established that theplaintiff cannot prove a cause of action against that defendant. On the contrary, in medical malpractice actions courts will entersummary judgment as to one defendant but not others if it has beenshown that proximate cause is lacking. See, e.g., Gill, 157 Ill.2d at 311; Seef, 311 Ill. App. 3d at 19-21.

Accordingly, for the foregoing reasons, we affirm the judgmentof the circuit court of Lake County.

Affirmed.

RAPP and BYRNE, JJ., concur.