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FIRST DIVISION
DECEMBER 04, 2006

No. 1-04-1243

HAROLD MANSMITH, Individually, and as ) Appeal from the
Special Administrator of the Estate ) Circuit Court of
of Delphine Mansmith, Deceased, ) Cook County.

)

Plaintiff-Appellee, )

)

v. ) No. 99 L 13912
)
)

ANJUM HAMEEDUDDIN, ) The Honorable
) John Grogan,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the opinion of the court.

On January 14, 1998, Delphine Mansmith died of a brain stem

abscess caused by an acute staph infection that developed after

she received an epidural steroid injection for back pain. Her

husband, the plaintiff Harold Mansmith, sued the defendant, Anjum

Hameeduddin, M.D., and R. Lawrence Ferguson, M.D. for medical

malpractice. The plaintiff and Dr. Ferguson reached a settlement

agreement before the jury reached its verdict. A jury found for

the plaintiff and awarded damages in the amount of $1,198,734.94.

After a setoff in the amount paid by Dr. Ferguson of $750,000,

judgment was entered against Dr. Hameeduddin in the amount of
$448,734.94.

On appeal, Dr. Hameeduddin argues that the trial court erred
when it denied her pretrial motion for summary judgment, her
motions for a directed verdict at the close of the plaintiff's
case in chief and at the close of all of the evidence, and her
posttrial motion for judgment notwithstanding the verdict because
the plaintiff did not prove she deviated from the standard of
care and did not and could not prove that she was the proximate
cause of Mrs. Mansmith's pain and suffering and ultimate death
under both survival and wrongful death causes of action. She
also contends that the trial court erred when it (1) refused to
instruct the jury that Dr. Ferguson reached a settlement
agreement with the plaintiff and (2) taxed the costs of Dr.
Ferguson's videotaped evidence deposition to her. For the
reasons that follow, we affirm in part and vacate in part the
judgment of the trial court.

BACKGROUND

Dr. Hameeduddin was Mrs. Mansmith's primary care physician.
Mrs. Mansmith was an insulin-dependent diabetic and obese. In
February 1996, Mrs. Mansmith first complained of back pain. Dr.
Hameeduddin prescribed conservative treatment, which consisted of
back exercises, injections of DepoMedrol for pain, and physical

therapy. By June 1996, Mrs. Mansmith's pain returned, and she
experienced numbness in her left leg and had difficulty walking.
Dr. Hameeduddin ordered an MRI scan for Mrs. Mansmith. The MRI
report dated June 28, 1996, stated that Mrs. Mansmith had a small
focal herniation at the L5-S1 vertebra, a large left lateral
bulge at the L4-L5 vertebrae, and a mild bulge at L1-L2.

Dr. Hameeduddin referred Mrs. Mansmith to Dr. R. Lawrence
Ferguson, a neurosurgeon. In August 1996, after examining Mrs.
Mansmith, Dr. Ferguson diagnosed her with spinal stenosis1 and a
bulging disc at the L4-L5 vertebrae. Dr. Ferguson recommended
surgery. Specifically, he recommended that Mrs. Mansmith undergo
a decompressive laminectomy2 to remove the bulging disc at the
L4-L5 area of her spine. While the surgery would not necessarily
alleviate Mrs. Mansmith's back pain, it would help relieve the
numbness in her leg. Prior to surgery, Dr. Hameeduddin prepared

1 Spinal stenosis is a condition that causes bone deformity,
which results in a narrowing of the spaces in the spine. This
condition can pinch nerves extending from each vertebra, or pinch
the spinal cord, causing pain.

2 A laminectomy is a surgical procedure in which a surgeon
removes part of the vertebra, creating more room for the spinal
cord or the nerves.

Mrs. Mansmith's preoperative history, which detailed she had
spinal stenosis at the L4-L5 area.

On August 12, 1996, Dr. Ferguson performed surgery on Mrs.
Mansmith. Instead of operating at the L4-L5 level, he performed
the laminectomy at the L1-L3 level. In essence, Dr. Ferguson
left untreated the stenosis and bulging disc at the L4-L5 level.
In his postoperative report, which he sent to Dr. Hameeduddin,
Dr. Ferguson stated that he performed the laminectomy at the L4-
L5 level. Following surgery, Mrs. Mansmith was treated by both
Drs. Hameeduddin and Ferguson for a postsurgical wound infection.
By December 1996, the infection had healed.

In April 1997, Mrs. Mansmith again complained of lower back
pain and pain radiating down her left leg. Once again, Dr.
Hameeduddin prescribed physical therapy. Although her pain
subsided for a time, by August 1997, Mrs. Mansmith was in
excruciating pain with numbness in her lower extremities.
Because she was not responding to conservative treatment, Dr.
Hameeduddin ordered a second MRI. The MRI report received by Dr.
Hameeduddin showed that Mrs. Mansmith had surgery at the L1-L3
vertebrae. It also showed that the presurgery pathology, the
spinal stenosis and bulging disc at the L4-L5 vertebrae, remained
unchanged. Dr. Hameeduddin recognized the inconsistencies
between Dr. Ferguson's postoperative report and the second MRI,

but she did not inform Dr. Ferguson or Mrs. Mansmith about those
inconsistencies. Dr. Hameeduddin explained:

"At that point, I was not aware of what
had exactly happened. I'm not a surgeon; I'm
not a radiologist. I looked at the report
and I - - I reviewed the operative report
again and it was very confusing because the
operative report did say that the patient was
operated on L5, S1."

Mrs. Mansmith indicated that she did not want to go back to
Dr. Ferguson and the Mansmiths requested a referral for a second
opinion; Dr. Hameeduddin referred Mrs. Mansmith to Dr. George
Miz, an orthopedic surgeon. In the course of her referral of
Mrs. Mansmith to Dr. Miz, Dr. Hameeduddin provided only the
second MRI scan report and film; Dr. Hameeduddin did not forward
to Dr. Miz the report of the first MRI scan (presurgery) showing
stenosis at the L4-L5 level; nor did Dr. Hameeduddin forward Dr.
Ferguson's postoperative report in which he wrongly stated that
he performed the laminectomy at the L4-L5 level.

Based on his review of the second MRI report, Dr. Miz
recommended that Mrs. Mansmith lose weight and that she receive
an epidural steroid injection, so long as she did not have an
infection in her spine. He did not recommend surgery because

Mrs. Mansmith had undergone a laminectomy at L1-L3 by Dr.
Ferguson the previous year and he wanted to attempt conservative
treatment first. If, however, the epidural did not relieve Mrs.
Mansmith's pain, Dr. Miz would have considered surgery.

In correspondence dated August 28, 1997, to Dr, Hameeduddin,
Dr. Miz stated, "Her lumbar MRI scan we reviewed and shows
evidence of previous decompression from L1 to L3. *** At L4-L5,
she has significant residual central spinal canal stenosis." In
correspondence dated October 7, 1997, to Dr. Hameeduddin, Dr.
Rene Santos, an infectious disease specialist who examined Mrs.
Mansmith for infections before the epidural steroid injection was
administered, stated, "She underwent a lumbar laminectomy (L1-L3)
by Dr. Ferguson last year for diskitis and spinal stenosis."

On December 23, 1997, Dr. Holly Carobene, an
anesthesiologist and pain management specialist, administered the
epidural steroid injection. In early January, Mrs. Mansmith
complained of severe headache and back pain. On January 14,
1998, Mrs. Mansmith died from an acute staph infection. The
epidural injection introduced bacteria into Mrs. Mansmith's
spinal canal, which, after it reached her brain, caused a brain
stem abscess that killed her. The initial autopsy indicated only
that Mrs. Mansmith died as a result of a brain stem abscess. An
exhumation performed in April 2002 showed that the brain stem

abscess was caused by bacteria introduced during the epidural
steroid injection.

In December 1999, the plaintiff sued Dr. Hameeduddin for
medical malpractice pursuant to the Survival Act (755 ILCS 5/27-6
(West 1998)), and wrongful death pursuant to the Wrongful Death
Act (740 ILCS 180/0.01 et seq. (West 1998)).3 In his third
amended complaint, which was based on the autopsy, the plaintiff
alleged that Dr. Hameeduddin breached her duty of care in that
she did not tell Mrs. Mansmith that she had a vertebral bone
infection.

In June 2003, Dr. Hameeduddin filed a motion for summary
judgment, arguing that no evidence in the record existed to
support the claims that (1) any of her acts or omissions were the
proximate cause of Mrs. Mansmith's death or (2) that her failure
to report impacted Mrs. Mansmith's subsequent treatment. Later
that month, the plaintiff filed a motion for leave to amend his
third amended complaint to correspond to the exhumation report,

3 The plaintiff also sued Drs. Ferguson, Santos, and
Gilbert. Drs. Santos and Gilbert were voluntarily dismissed
before the plaintiff filed his fourth amended complaint. Dr.
Ferguson reached a settlement agreement with the plaintiff while
the jury was deliberating.

which the trial court granted. In the fourth amended complaint,
the plaintiff specifically alleged: (1) Dr. Hameeduddin did not
inform Mrs. Mansmith or Dr. Ferguson, or the other physicians,
that Dr. Ferguson had intended to, but did not, operate on the
L4-L5 vertebrae and (2) had Mrs. Mansmith been informed of the
mistake, she would have gone to the University of Chicago medical
centers for the surgery and would not have agreed to an epidural
steroid injection. On July 31, 2003, the trial court denied Dr.
Hameeduddin's motion for summary judgment, treating the motion as
if it related to the fourth amended complaint.

At trial, Dr. Larry Lustgarten, plaintiff's retained
neurosurgeon, opined that if Dr. Ferguson had performed Mrs.
Mansmith's surgery at the L4-L5 vertebrae, Mrs. Mansmith would
not have needed the epidural steroid injection that caused her
death. However, he testified that in Mrs. Mansmith's case, an
epidural steroid injection was appropriate and that its
administration was within the standard of care. He opined that
it was appropriate for a family practitioner, like Dr.
Hameeduddin, to defer to a specialist about orthopedic and
neurological issues. He also testified that a person could get
an infection from an epidural injection even with the best care.

Dr. Finely Brown, plaintiff's retained family practice
expert, opined that Dr. Hameeduddin violated the standard of care

by not telling Mrs. Mansmith that Dr. Ferguson operated on the
wrong vertebrae, and by not coordinating her care with him and
letting Dr. Ferguson know that he operated on the wrong level.
Dr. Brown explained that when a primary care practitioner
discovers an inconsistency between what a surgeon says he did and
what that surgeon actually did, the practitioner must do two
things: (1) ask the surgeon to resolve the discrepancy, and (2)
inform his patient of the discrepancy. Because Mrs. Mansmith did
not know that Dr. Ferguson operated on the wrong level, Dr. Brown
opined that she could not seek appropriate medical treatment and
was exposed to an unreasonable risk associated with receiving the
epidural steroid injection. In Dr. Brown's opinion, Dr.
Hameeduddin's failure to inform Mrs. Mansmith of the discrepancy
between what Dr. Ferguson said he did and what he actually did,
proximately caused her pain and suffering, and her death.

Dr. Ferguson's videotaped evidence deposition testimony was
played for the jury. He testified that he operated on a level
different from what he intended. Although Mrs. Mansmith's
pathology did not change, she did have some improvement in her
symptoms following the surgery. Dr. Ferguson testified that he
did not agree with the use of the epidural steroid injection
because Mrs. Mansmith had a compressive lesion, she was diabetic,
and she had a previous infection in the area of the first

surgery. If Mrs. Mansmith had returned to his care, he would
have suggested that she have further surgery on the L4-L5 level.
He opined that surgery was better for Mrs. Mansmith because the
surgery would have decompressed her nerve roots, which caused her
pain and numbness. Although he recognized that the rate of
infection for surgery and epidural steroid injections was
approximately the same, he explained that the infections were
different. An infection resulting from a surgery would be
superficial, while an infection from an injection would be deep.

Dr. Charles Fager, an expert in neurosurgery retained by Dr.
Ferguson, testified that in his opinion, the epidural steroid
injection should never have been given. He explained that he
never has had faith in such injection for any condition, he never
would have considered giving it, and giving it was a clear
deviation from the standard of care.

Dr. Hameeduddin opined that she complied with the standard
of care in treating Mrs. Mansmith. As a family practitioner, she
referred Mrs. Mansmith to specialists for all of her complaints.
She admitted that if she became aware that a specialist had
improperly or negligently treated her patient, she would have a
duty to tell the patient. When asked what her duty, as a family
practitioner, was when she received the second MRI report, she
stated: "To render her the proper care and send her to the

appropriate surgeon to have it reviewed to find out what was
still causing her pain." Dr. Hameeduddin also admitted that she
knew there was an inconsistency between the postoperative report
and the second MRI, but that she did not tell Mrs. Mansmith or
Dr. Ferguson about the inconsistencies. She opined that the
treatment that she provided Mrs. Mansmith did not cause her
injury or death. She testified that in her opinion she did not
deviate from the standard of care and nothing she did contributed
to Mrs. Mansmith's pain or contributed to her need for the
epidural steroid injection that killed her.

Dr. Steven Eisenstein, a family practitioner, testified as
an expert witness for Dr. Hameeduddin. Dr. Eisenstein testified
that for complaints of back pain, the family practitioner must
assess the problem and decide on treatment. Because back pain is
a common problem, family practitioners generally manage the pain
through outpatient or conservative treatment and make referrals
to specialists if the problem persists. Dr. Eisenstein opined
that Dr. Hameeduddin complied with the standard of care in
treating Mrs. Mansmith's back pain. He also testified that
following Mrs. Mansmith's surgery, it was appropriate for Dr.
Hameeduddin to prescribe conservative treatment and that her
postoperative care for Mrs. Mansmith's back pain was appropriate
and within the standard of care. When asked what Dr.

Hameeduddin's duty to Mrs. Mansmith was after receiving the
second MRI report, Dr. Eisenstein testified that "[s]he was
required to inform the patient that the MRI revealed
abnormalities and that she felt these were significant enough
that surgical consultation was necessary." Dr. Eisenstein
testified that the standard of care did not require Dr.
Hameeduddin to discuss the inconsistencies between the MRIs with
Dr. Ferguson "[b]ecause the MRI was ordered with the specific
idea that this patient had pain and we were trying to get her
better." Dr. Eisenstein opined that nothing Dr. Hameeduddin did
contributed to Mrs. Mansmith's death.

Following the plaintiff's case-in-chief and again at the
close of all of the evidence, Dr. Hameeduddin moved for a
directed verdict. She argued that there was no evidence she
deviated from the standard of care or that her actions or
omissions were a proximate cause of Mrs. Mansmith's death because
there was no evidence that if Mrs. Mansmith had known about the
inconsistencies, she would have done anything differently. The
trial court denied the motions.

After the jury was instructed and had begun its
deliberations, Dr. Ferguson and the plaintiff reached a
settlement agreement. Dr. Hameeduddin asked the court to give
the jury Illinois Pattern Jury Instructions, Civil, No. 2.03,

(2000) (hereinafter IPI Civil (2000) No. 2.03), which stated: "R.
Lawrence Ferguson, M.D. is no longer a party to this case. You
should not speculate as to the reason nor may the remaining
parties comment on why R. Lawrence Ferguson, M.D. is no longer a
party." The plaintiff argued that the instruction was only
appropriate where the parties made comments during closing
arguments about the fact that the party that settled is no longer
present. The trial court refused to issue the instruction, in
part, because "the jury had been deliberating for a substantial
period of time, and the court did not want to put the emphasis on
the case against Dr. Hameeduddin at the time even though Dr.
Hameeduddin's attorneys tendered." The trial court did instruct
the jury that each defendant was entitled to a fair consideration
of his or her own defense, and each defendant's case was to be
decided as if it were a separate lawsuit. Also, the trial court
instructed the jury to answer a special interrogatory which asked
whether the epidural steroid injection performed by Dr. Carobene
was the sole proximate cause of the death of Mrs. Mansmith.

The jury returned a verdict in favor of the plaintiff and
against Dr. Hameeduddin and Dr. Ferguson in the amount of
$1,198,734.94. The amount of the verdict was reduced by the
amount of Dr. Ferguson's negotiated settlement, $750,000. Dr.
Hameeduddin filed a posttrial motion for judgment notwithstanding

the verdict or, in the alternative, a new trial. The trial court
denied the motion, explaining, "It would appear that the failure
to so inform either the plaintiff or Dr. Ferguson depriving [Mrs.
Mansmith] of the ability to be informed as to [the] status of her
back condition was a question of fact for the jury to determine.
They determined."

In April 2004, the trial court granted the plaintiff's
motion for the assessment of costs. Specifically, the plaintiff
sought to recover the cost associated with Dr. Ferguson's
videotaped evidence deposition. The court awarded the plaintiff
$1,009.55 in costs against Dr. Hameeduddin for the deposition.
On April 27, 2004, Dr. Hameeduddin filed her timely notice of
appeal.

ANALYSIS

On appeal, Dr. Hameeduddin argues that she did not deviate
from the standard of care in treating Mrs. Mansmith and, in any
event, nothing she did was the proximate cause of Mrs. Mansmith's
pain and suffering and ultimate death. She therefore contends
that the trial court erred when it denied her motion for summary
judgment, motions for directed verdict, and motion for judgment
notwithstanding the verdict. She also argues that the trial
court erred in refusing to give IPI Civil (2000) No. 2.03 and
assessing to her the costs of Dr. Ferguson's videotaped evidence

deposition.

A. Summary Judgment

The denial of Dr. Hameeduddin's motion for summary judgment
is not subject to review on appeal. Where the issue in the
motion is decided at trial, any error in the denial merges into
the judgment. Nilsson v. NBD Bank of Illinois, 313 Ill. App. 3d
751, 767, 731 N.E.2d 774 (1999).

B. Motions for Directed Verdict and Motion for Judgment n.o.v.

Following the plaintiff's presentation of evidence and again
at the close of all of the evidence, Dr. Hameeduddin moved for a
directed verdict, arguing that evidence was lacking that she
deviated from the standard of care or that her actions or
omissions were a proximate cause of Mrs. Mansmith's injury and
death. The trial court denied the motions. In this appeal, Dr.
Hameeduddin argues that the plaintiff failed to establish that
the treatment she provided Mrs. Mansmith deviated from the
standard of care and that the plaintiff failed to establish
causation because Dr. Brown could only speculate as to what
actions Mrs. Mansmith would have taken had she been informed that
Dr. Ferguson operated on the wrong vertebrae.

"As in other negligence cases the question of whether the
doctor deviated from the standard of care and whether his conduct
was a proximate cause of the plaintiff's injury are questions of

fact for the jury. Under the established Pedrick criteria,
judgment should not here be entered for the defendant[] unless
all of the evidence viewed in the aspect most favorable to the
plaintiff so overwhelmingly favors the defendant[] that no
contrary verdict based on the evidence could ever stand."
Borowski v. Von Solbrig, 60 Ill. 2d 418, 423, 328 N.E.2d 301
(1975), citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d
494, 510, 229 N.E.2d 504 (1967).

A directed verdict or a judgment n.o.v. should not be
granted if "'"reasonable minds might differ as to inferences or
conclusions to be drawn from the facts presented"'. [Citation.]
'In making this assessment, a reviewing court must not substitute
its judgment for the jury's, nor may a reviewing court reweigh
the evidence or determine credibility of the witnesses.'
[Citation.]" Moller v. Lipor, Nos. 1-04-3640, 1-05-0061 cons.,
slip op. at 11 (September 29, 2006). In other words, a motion
for directed verdict or judgment n.o.v. should not be granted
where the evidence demonstrates a substantial factual dispute or
where the witnesses's credibility is at issue.  Our review of
this issue is de novo. Schiff v. Friberg, 331 Ill. App. 3d 643,
657, 771 N.E.2d 517 (2002).

1. Standard of Care
"The central issue in a medical-malpractice action is the

standard of care against which a doctor's negligence is judged."
Curi v. Murphy, 366 Ill. App. 3d 1188, 1199, 852 N.E.2d 401
(2006).  It is the plaintiff's burden to prove by a preponderance
of the evidence that the defendant deviated from that standard of
care. Borowski, 60 Ill. 2d at 423. A deviation from the
standard of care constitutes professional negligence, which must
be proved by expert testimony. Borowski, 60 Ill. 2d at 423; IPI
Civil (2000) No. 105.02.

Dr. Brown, as the plaintiff's family practitioner expert,
testified that under the standard of care applicable to a primary
care practitioner, Dr. Hameeduddin was required to inform her
patient that Dr. Ferguson operated at the wrong level. The
standard of care also required Dr. Hameeduddin to coordinate her
care of Mrs. Mansmith with Dr. Ferguson and, therefore, Dr.
Hameeduddin had a duty to inform Dr. Ferguson that he had
performed the surgical operation at the wrong level. In effect,
Dr. Hameeduddin had a medical duty to resolve the inconsistency
between the second MRI report that showed stenosis at the L4-L5
vertebrae and Dr. Ferguson's postoperative report claiming that
he performed a laminectomy at that very level.

Before the jury, Dr. Hameeduddin testified that the
conclusions contained in the two reports were "confusing," making
her "[un]aware of what had happened." Dr. Hameeduddin admitted

during cross-examination, however, that if she became aware that
a specialist had negligently treated her patient, she would have
a duty to tell the patient. Dr. Brown testified that Dr.
Hameeduddin deviated from the standard of care by failing to act
to correct her "confusion"; that is, failing to resolve the
"inconsistency" between the second MRI report showing the same
pathology Mrs. Mansmith had presurgery and Dr. Ferguson's
postoperative report in which he stated he successfully addressed
that pathology during the laminectomy.

Based on the conflicting testimony of Dr. Brown and Dr.
Hameeduddin as to when a duty to disclose to a patient is
triggered, the question before the jury was whether, under the
circumstances shown by the evidence, an inconsistency or surgical
negligence by Dr. Ferguson was demonstrated by the August 1997
MRI report in light of Dr. Ferguson's postoperative report.
Based on the testimony of Dr. Eisenstein and Dr. Hameeduddin, the
jury was free to determine that an "inconsistency" was
insufficient to trigger a duty on the part of Dr. Hameeduddin to
discuss the results of 1997 MRI and Dr. Ferguson's postoperative
findings with Mrs. Mansmith. If, however, the evidence
established professional negligence on the part of Dr. Ferguson,
then, based on Dr. Hameeduddin's own testimony, she was required
to tell Mrs. Mansmith of Dr. Ferguson's negligence.

The record establishes that Mrs. Mansmith remained Dr.
Hameeduddin's patient through at least January 2, 1998, when she
saw her last at an office visit. There is no dispute that at no
time did Dr. Hameeduddin disclose to Mrs. Mansmith the evidence
of Dr. Ferguson's possible professional negligence during the
1996 laminectomy. Yet, Dr. Hameeduddin received medical
corroboration of the accuracy of the August 1997 MRI film and
report. Dr. Miz saw Mrs. Mansmith on August 28, 1997, and
reviewed the August 1997 MRI film and report. In his
correspondence to Dr. Hameeduddin, Dr. Miz related that Mrs.
Mansmith underwent a laminectomy between the L1 and L3 vertebrae,
that she had significant spinal stenosis at L4-L5, and she was
suffering excruciating pain, rated at 10 on a scale of zero to

10. Also, Dr. Santos saw Mrs. Mansmith in October 1997. In his
correspondence to Dr. Hameeduddin, he stated that since her prior
1996 MRI scan, Mrs. Mansmith had undergone a laminectomy at L1
through L3.

Based on this evidence, even if professional negligence of
Dr. Ferguson had to be shown to trigger the duty Dr. Hameeduddin
admits she had to discuss this with Mrs. Mansmith, we find more
than sufficient evidence for the jury to conclude that the higher
showing was met. It was within the jury's prerogative to
conclude that Dr. Hameeduddin had a continuing duty to discuss

with Mrs. Mansmith what amounted to substantial evidence of the
same pathology that existed presurgery in 1996, in direct
conflict with Dr. Ferguson's claim that he performed the
laminectomy as he had intended. Based on this evidence, the jury
was free to conclude that Dr. Ferguson's professional negligence
should have been known to Dr. Hameeduddin, if not by August 1997,
when she received both the second MRI report and the report from
Dr. Miz, an orthopedic surgeon, a specialist on par with Dr.
Ferguson, a neurosurgeon, then certainly by October 1997 when Dr.
Santos sent Dr. Hameeduddin his report. Thus, this knowledge
should have triggered Dr. Hameeduddin's duty to discuss Dr.
Ferguson's surgical negligence with Mrs. Mansmith.

We find the evidence in the record regarding the standard of
care and of Dr. Hameeduddin's deviation from that standard of
care to be more than sufficient to withstand her motions for
directed verdict and judgement n.o.v. While the evidentiary
showing that Dr. Hameeduddin elected to treat Mrs. Mansmith
without addressing her confused reaction to the second MRI and
Dr. Ferguson's postoperative report may not have been sufficient
to meet the plaintiff's burden as to a deviation of the
applicable standard of care, the additional evidence on this
point while Dr. Hameeduddin remained Mrs. Mansmith's primary care
physician was more than sufficient to make this a jury question.

The evidence is undisputed that at no time after the receipt of
medical reports corroborating the second MRI results did Dr,
Hameeduddin ever discuss with Mrs. Mansmith these finding in
relation to Dr. Ferguson's postoperative report stating that he
had performed a laminectomy at the L4-L5 level, even though this
duty continued through January 1998.

Accordingly, we reject Dr. Hameeduddin's claim that there
was no evidence that she deviated from her standard of care in
treating Mrs. Mansmith after the surgical operation performed by
Dr. Ferguson and before Mrs. Mansmith received the epidural
injection. Also, based on the record, it is without contention
that of all the medical professions involved with the treatment
and care of Mrs. Mansmith, only Dr. Hameeduddin was sent and
received the reports clearly establishing that Dr. Ferguson
performed the surgery on the wrong level and Mrs. Mansmith, at
the time of the epidural steroid injection, still suffered from
the same pathology for which she had agreed to undergo elective
surgery. As Dr. Hameeduddin testified herself, she had a duty to
inform her patient of negligent medical care provided by a
specialist to whom she had referred a patient. The record is
clear that Dr. Ferguson did just that and that Dr. Hameeduddin
had clear evidence of that negligence prior to the second
surgical operation Mrs. Mansmith underwent in December 1997. The

record evidence was sufficient that Dr. Hameeduddin failed in
fulfilling her duty to her patient. The record further
establishes that Mrs. Mansmith died without ever having been
informed that the first surgery she agreed to undergo to
alleviate her pain and numbness was incorrectly performed.

In sum, the evidence clearly supports the jury's finding
that Dr. Hameeduddin had a duty to inform Mrs. Mansmith of Dr.
Ferguson's negligence during the first operation and that her
care of Mrs. Mansmith deviated from that standard. See Gee v.
Treece, 365 Ill. App. 3d 1029, 1035, 851 N.E.2d 605 (2006)
(whether defendant doctor "was negligent for failing to [properly
treat and care for the patient] in light of the information he
had to work with" was for the jury to determine). While Dr.
Hameeduddin claims that her duty to Mrs. Mansmith was satisfied
by the referral of Mrs. Mansmith to specialists after the receipt
of the August 1997 MRI, a contention supported by her expert, we
cannot say that her duty ended there in the face of reports from
three physicians that stenosis existed as it did prior to Dr.
Ferguson's surgical operation. In particular, where the record
evidence reveals that Dr. Hameeduddin was the only physician that
had reviewed the conflicting MRI scans (1996 and 1997) and Dr.
Ferguson's postoperative report, the burden to have passed on Dr.
Ferguson's postoperative report to the other specialists was

slight. Passing on Dr. Ferguson's report might well have
provided the cover she claims here of deferring to a specialist.
But having failed to do that, there was sufficient evidence to
allow the jury to determine that what Dr. Hameeduddin did not do,
was a deviation of the standard of care she owed to Mrs.
Mansmith.

It is against this backdrop that we examine whether Dr.
Hameeduddin's deviation from the standard of care was a proximate
cause of the pain and suffering Mrs. Mansmith endured following
Dr. Ferguson's negligent operation and Mrs. Mansmith's death
arising from the epidural injection.

2. Proximate Cause

The expression "proximate cause" means "a cause which, in
natural or probable sequence, produced the injury complained of.
It need not be the only cause, nor the last or nearest cause."
IPI Civil (2000) No. 15.01. Proximate cause is to be determined
from all the attending circumstances, and "'it can only be a
question of law when the facts are not only undisputed but are
also such that there can be no difference in the judgment of
reasonable men as to the inferences to be drawn from them.'"
Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 19, 724
N.E.2d 115 (1999), quoting Merlo v. Public Service Co., 381 Ill.
300, 318, 45 N.E.2d 665 (1942). "The plaintiff need not show a

better result would have been obtained absent the doctor's
alleged negligence in order to establish proximate cause."
Sinclair v. Berlin, 325 Ill. App. 3d 458, 464, 758 N.E.2d 442
(2001).

Based on the cases each side cites in support of their
respective positions, opposing doctrines are offered to assist us
in analyzing the proximate cause issue here. Dr. Hameeduddin
contends that this case should be analyzed under the "loss of
chance" theory, citing Scardina v. Nam, 333 Ill. App. 3d 260, 775
N.E.2d 16 (2002), and Aguilera v. Mt. Sinai Hospital Medical
Center, 293 Ill. App. 3d 967, 691 N.E.2d 1 (1997). The
plaintiff, on the other hand, cites to an "informed consent"
case, Coryell v. Smith, 274 Ill. App. 3d 543, 653 N.E.2d 1317
(1995), in support of affirming the judgment. While this case,
given its unique facts, does not fall neatly within either
doctrine, we find support from cases involving each doctrine in
addressing the issue before us. Of course, it is the traditional
test of proximate causation that we must apply regardless of the
doctrine. Holton v. Memorial Hospital, 176 Ill. 2d 95, 107, 679
N.E.2d 1202 (1997) (reaffirming Borowski and holding that the
traditional standard of proving causation applies in medical
malpractice actions).  

In her reply brief, Dr. Hameeduddin restates her principal

contention regarding proximate causation: "For Dr. Brown to opine
that Dr. Ferguson and the decedent would have done something
differently had Dr. Hameeduddin told them that Dr. Ferguson
operated on the wrong level is purely speculative. Such
speculation is not sufficient to support a causal connection
between Dr. Hameeduddin not telling the decedent and Dr. Ferguson
of the improper surgery and the decedent's pain." She contends
that Aguilera and Scardina are instructive on the speculative
nature of the claimed causal connection in this case. In
Aguilera, the plaintiff's claim was that a delay in performing a
CT scan was a proximate cause of the decedent's death. Aguilera,
293 Ill. App. 3d at 968. The plaintiff's theory was that an
earlier CT scan would have led to neurosurgery to prevent or
lessen the injury suffered by the decedent. However, the only
neurosurgeons that testified agreed that an earlier CT scan
would not have led to neurosurgery because the damage to the
decedent's brain was beyond surgical help. Thus, there was no
medical link between the alleged negligence in the delay in
performing a CT scan and any treatment that might have been
available. Aguilera, 293 Ill. App. 3d at 976.

A similar situation arose in Scardina. In that case, the
trial court directed a verdict in favor of Dr. Nam based on the
absence of any evidence that Dr. Nam's alleged failure to

properly read the radiological film lessened the effectiveness of
the subsequent surgery. The plaintiff's claim was that Dr. Nam's
professional negligence resulted in the surgeon missing a portion
of the plaintiff's damaged colon. The directed verdict was
affirmed in Scardina because there was no medical testimony that
the radiological report impacted the surgeon's examination of the
plaintiff's colon during the subsequent surgery. Scardina, 333
Ill. App. 3d at 271. The circumstances here are not comparable
to those in Aguilera or Scardina.

Here, the plaintiff's theory is that Dr. Hameeduddin's
failure to inform Mrs. Mansmith that Dr. Ferguson operated on the
wrong part of her spine was a proximate cause of the pain and
suffering she endured after Dr. Ferguson's negligent operation
and the infection risk she faced by the epidural injection that
resulted in the acute staph infection that killed her. As to the
medical treatment Mrs. Mansmith should have received, Drs.
Ferguson, Fager, and Lustgarten, all testified that given the
same pathology in 1997 that existed in 1996, the surgical
operation that Mrs. Mansmith agreed to undergo in 1996 was the
correct surgical operation for her in 1997. Dr. Ferguson stated
that he would have recommended that Mrs. Mansmith undergo a
laminectomy at the L4-L5 area; that she was counterindicated for
an epidural steroid, and the risk of infection was different

between a laminectomy and a steroid injection because with an
epidural injection into the spinal canal, any infection would be
much deeper and, hence, put Mrs. Mansmith at a greater risk.

Dr. Fager, Dr. Ferguson's expert witness, echoed Dr.
Ferguson's testimony: "The only treatment would be the treatment
that was originally planned for her. There would be no other
treatment that would be the thing to do." In fact, Dr. Fager
left no doubt as to his view on the epidural injection. "In my
view, it was contraindicate[d]. I think it should never have
been done. I think - - I can't think of doing anything worse to
this lady at that point in time than putting a needle in her
spine at that level where the spinal stenosis was and attempt to
inject a steroid into that space around the dura covering over
the nerves to her legs. I can't think of anything that would be
worse. I would never have even considered doing that."

Dr. Fager further testified that the success rate for the
laminectomy Dr. Ferguson intended to perform in 1996, and that
Mrs. Mansmith should have received in 1997, was 90%. Dr.
Lustgarten testified: "Had surgery been done properly, Mrs.
Mansmith had a 90% or better probability of being cured of her
leg pain, her back pain would also have felt better." Dr.
Skaletsky stated in his report: "[I]t is not logical to initially
operate on severe stenosis and then, when it is discovered that

the pathology and the same symptoms persist due to an improperly
performed operation, to not perform the proper procedure." Dr.
Brown testified: "If surgery was need in June of '96, it was
needed in August '97 ***."

As to Mrs. Mansmith's pain and suffering, Dr. Miz testified
that on a scale of zero to 10, on August 28, 1997, Mrs.
Mansmith's pain was at 10, and at 4 at its best. It is also
clear on the record that, had a laminectomy been properly
performed in either 1996 or prior to December 1997, Mrs. Mansmith
would never have undergone the epidural steroid injection, which
resulted in the acute staph infection that killed her.

Against this evidence, neither Aguilera nor Scardina
provides any support for Dr. Hameeduddin's contention that there
is an absence of evidence on proximate cause in this case. Nor
does Dr. Hameeduddin even suggest that there is an absence of
medical testimony between what Dr. Ferguson intended to do during
the laminectomy in 1996 and what he would have done had Dr.
Hameeduddin informed him in 1997 that he performed the
laminectomy on the wrong level. A broad reading of another "loss
of chance" case, Gill v. Foster, 157 Ill. 2d 304, 626 N.E.2d 190
(1993), suggests that under the circumstances present here, the
causal issue was properly left for the jury. In Gill, the
hospital was found not liable where the treating physician

testified that a nurse's failure to notify him of the patient's
condition did not affect his treatment of the patient. Gill, 157
Ill. 2d at 311. Here, there was no testimony by Dr. Miz that he
would have prescribed the same epidural steroid injection had he
known that a neurosurgeon had concluded that a laminectomy was
the proper medical treatment to provide relief to Mrs. Mansmith
for her pathology. While a retort may be that the plaintiff
should have asked Dr. Miz what he would have done had he known
about Dr. Ferguson's opinion that only a laminectomy was the
proper medical procedure, the plaintiff's focus was never on Dr.
Miz, or what he should or should not have done. The plaintiff's
case against Dr. Hameeduddin centered on what Dr. Hameeduddin
knew and did not disclose, and what Dr. Ferguson would have done
had Dr. Hameeduddin complied with the standard of care owed to
Mrs. Mansmith.

Accordingly, we reject Dr. Hameeduddin's contention that it
is pure speculation that Dr. Ferguson would have done anything
differently had Dr. Hameeduddin informed him that he performed
the laminectomy on the wrong level. Dr. Ferguson's testimony
clearly supports the contrary.

We also note the jury was properly instructed that a fact
may be proved by circumstantial evidence (IPI Civil (2000) No.
3.04), that facts may be proved by reasonable inferences drawn

from the evidence, and that it may use "common sense gained from
your experiences in life in evaluating what you see and hear
during trial" (IPI Civil (2000) No. 1.01). At the very least,
the medical evidence on proximate causation supported the
reasonable inference apparently drawn by the jury that Dr.
Ferguson would have done something differently had Dr.
Hameeduddin informed him that he performed the laminectomy on the
wrong level. We note that Dr. Fager testified that Dr. Ferguson
was never aware that he performed surgery on the wrong level
based on the medical records he reviewed. It was only Dr.
Hameeduddin that received the records which showed Dr. Ferguson's
malpractice.

The evidence recited above made the issue of proximate cause
between Dr. Hameeduddin's professional negligence and what Dr.
Ferguson would have done a question for the jury to answer. See
Holton, 176 Ill. 2d at 109 (proximate cause was a jury question
where there was evidence "that the doctors would have undertaken
a different course of treatment had they been accurately and
promptly apprised of their patient's progressive paresis").

In her main brief, Dr. Hameeduddin contends that "[w]ithout
any direct testimony from the decedent, plaintiff cannot sustain
his burden as to causation." Once again we disagree; no direct
evidence was needed. "The evidence was not direct, but it was

circumstantial; its strength would be a matter for the trier of
fact." Pyne v. Witmer, 129 Ill. 2d 351, 362, 543 N.E.2d 1304
(1989).

We begin our review of the evidence of what Mrs. Mansmith
would have done had Dr. Hameeduddin complied with her duty of
care with what are essentially uncontested facts. In early 1996,
Mrs. Mansmith was suffering from severe back pain and numbness in
her legs. After months of conservative treatment proved
unsuccessful in providing any long-term relief to Mrs. Mansmith,
an MRI was ordered. As Dr. Eisenstein testified the standard of
care then required Dr. Hameeduddin to discuss with Mrs. Mansmith
the abnormalities on the MRI. The results of the MRI in turn
prompted a referral to a specialist. Dr. Ferguson then saw Mrs.
Mansmith and recommended a laminectomy at the L4-L5 area.
Presumably, and consistent with Dr. Hameeduddin's standard of
care, she discussed the available options with Mrs. Mansmith in
light of Dr. Ferguson's recommendation. Mrs. Mansmith elected to
undergo the laminectomy. In fact, Mrs. Mansmith spent little
time in making her decision: she first saw Dr. Ferguson on August
7, 1996; the laminectomy was performed on August 12, 1996.

Here, the circumstantial evidence was sufficient to make the
causal connection between Dr. Hameeduddin's professional
negligence, as we have previously determined, and the ultimate

injuries suffered by Mrs. Mansmith a question for the jury to
determine.

"Although defendant argues that
plaintiff presented no evidence that the
decedent would have acted any differently had
she known that the results of the [medical
test confirmed one medical condition over
another], the record indicates otherwise. ***
[Based on the evidence presented] it could be
inferred that [the plaintiff and decedent]
would have acted differently had the
defendant communicated the results to them.
*** Had the defendant communicated that the
ultrasound test indicated an ectopic
pregnancy rather than a miscarriage, it is
not unreasonable to infer that medical help
might have been sought sooner. Thus,
applying the Pedrick standard, we conclude
that the trial court did not err in denying
defendant's motion for a directed verdict."
Haist v. Wu, 235 Ill. App. 3d 799, 821, 601
N.E.2d 927 (1992).

Our review of the record evidence here, taken in the light most

favorable to the plaintiff, leads us to the same conclusion. See
also Marshall v. University of Chicago Hospitals & Clinics, 165
Ill. App. 3d 754, 758, 520 N.E.2d 740 (1987) (undisputed facts
demonstrate an irrefutable conclusion that plaintiff would have
acted presurgery as she acted post-surgery).

On the record before us, there was objective medical
evidence that Mrs. Mansmith would have acted as she acted in
August 1996 by undergoing a second laminectomy had she been
informed that the laminectomy she underwent in 1996 was
incorrectly performed. As the same pathology existed in 1997 as
existed in 1996, it was only logical that the "the only treatment
would be the treatment that was originally planned for her." A
reasonable inference can be drawn, as the jury apparently did,
that Mrs. Mansmith agreed to undergo a different surgery because,
as the evidence suggests, she had the misimpression that the
first surgery was performed properly and did not provide any
relief. It was natural and foreseeable that Mrs. Mansmith,
without the benefit of the objective medical evidence possessed
by Dr. Hameeduddin, would conclude that surgery, having provided
no relief, an epidural injection was worth the risk. It is also
reasonable to infer that, had she been informed that the initial
surgery she had agreed to, which, according to the medical
testimony, provides relief to 90% of patients, she would have

chosen to undergo the proper surgery where the medical testimony
was that the epidural injection provided at best temporary
relief. Based on the evidence in the record, the jury was free
to drawn the inference from the undisputed actions of Mrs.
Mansmith in 1996, in light of the medical testimony, that she
would have undergone a second laminectomy had she been properly
informed. In reaching this conclusion, we take some guidance
from the "informed consent" case cited by the plaintiff, Coryell,
without necessarily agreeing with its statement that the
"plaintiff was not required to present expert evidence
specifically as to proximate causation." Coryell, 274 Ill. App.
3d at 546.

Under the doctrine of informed consent, there is no dispute
that "a plaintiff must point to significant undisclosed
information relating to the treatment which would have altered
her decision to undergo it." Coryell, 274 Ill. App. 3d at 546.
While there was "significant undisclosed information relating to
treatment" in this case, what we take from Coryell is the
recognition that there are certain "'"nonmedical judgment[s]
reserved to the patient alone."'" Coryell, 274 Ill. App. 3d at
548, quoting Jambazian v. Borden, 25 Cal. App. 4th at 847-48, 30
Cal. Rptr. 2d 768, 775 (1994). While there was medical evidence
on the issue of proximate causation present in the record, this

case, to a certain extent, also involves Mrs. Mansmith being
deprived of the medical evidence to determine for herself what
surgical procedure to undergo. While the trial court was correct
in sustaining the objection to the question put to Dr. Brown as
to what Mrs. Mansmith would have done had she known of Dr.
Ferguson's negligent surgical operation as calling for
speculation, we do not agree with Dr. Hameeduddin that, ipso
facto, there was no evidence in the record on that precise point.
The jury had more than sufficient evidence to make a reasonable
and objective determination as to what Mrs. Mansmith likely would
have done based on the evidence that was presented. "'[W]here
death has sealed the lips of the one who might otherwise have
shed the most light on the question. The plaintiff was compelled
to tell his story with the best evidence available to him.'"
Pyne, 129 Ill. 2d at 362, quoting Sloma v. Pfluger, 125 Ill. App.
2d 347, 358, 261 N.E.2d 323 (1970). To require more would in
effect preclude Mrs. Mansmith, and others like her (however rare
this may be given the absence in Illinois of a similar factual
case) from receiving any relief for professional negligence that
was clearly shown and clearly deprived her of making a nonmedical
judgment reserved to her alone. We also take guidance from the
caution expressed by our supreme court in the "loss of chance"
case of Holton:

"To the extent a plaintiff's chance of
recovery or survival is lessened by the
malpractice, he or she should be able to
present evidence to a jury that the
defendant's malpractice, to a reasonable
degree of medical certainty, proximately
caused the increased risk of harm or lost
chance of recovery. *** [Citations.] To hold
otherwise would free health care providers
from legal responsibility for even the
grossest acts of negligence, as long as the
patient upon whom the malpractice was
performed already suffered an illness or
injury ***." Holton, 176 Ill. 2d at 119.

Or, we add here, died before ever discovering the professional
negligence that deprived her of the right to decide medical
alternatives for herself.

Based on the evidence presented, we cannot say the jury was
without evidentiary support as to each of the elements of a
medical malpractice action in entering its verdict against Dr.
Hameeduddin and in favor of the plaintiff. This is especially
true where the trial court here "'guarded against [speculation]
by the use of appropriate instruction[] to the jury'" in the form

a special interrogatory regarding sole proximate cause. Holton,
176 Ill. 2d at 107, quoting Borowski, 60 Ill. 2d at 424. As the
trial court here succinctly stated: "[T]he failure to so inform
the plaintiff or Dr. Ferguson depriving [Mrs. Mansmith] of the
ability to be informed as to [the] status of her back condition
was a question of fact for the jury to determine. They
determined." The trial court did not err in denying Dr.
Hameeduddin's motions for directed verdict or judgment n.o.v.

C. Jury Instruction

Dr. Hameeduddin also argues that the trial court erred when
it refused to instruct the jury that Dr. Ferguson had settled
with the plaintiff and that he was no longer a defendant in the
case. She contends that the court misled the jurors by allowing
them to believe that Dr. Ferguson remained a defendant in the
case and that no reasonable jury would have returned the $1.1
million award against her alone.

After the jury was instructed and had begun its
deliberations, Dr. Ferguson reached a settlement agreement with
the plaintiff. Dr. Hameeduddin then requested that the court
give the jury IPI Civil (2000) No. 2.03, which read: "[R.
Lawrence Ferguson, M.D.] is no longer a party to this case. You
should not speculate as to the reason nor may the remaining
parties comment on why [R. Lawrence Ferguson, M.D.] is no longer

a party." The court denied Dr. Hameeduddin's request and did not
submit the instruction to the jury.

The decision to provide the jury with a particular
instruction is within the sound discretion of the trial court.
The court's decision will not be reversed absent an abuse of
discretion. "A trial court does not abuse its discretion so long
as, 'taken as a whole, the instructions fairly, fully, and
comprehensively apprised the jury of the relevant legal
principles.'" York v. El-Ganzouri, 353 Ill. App. 3d 1, 32, 817
N.E.2d 1179 (2004), quoting Schultz v. Northeast Illinois
Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74, 775 N.E.2d
964 (2002).

IPI Civil (2000) No. 2.03 is intended to provide some
uniformity to a trial court's practice of commenting on
dismissals during trial. IPI Civil (2000) No. 2.03, Comment, at

18. The Notes on Use indicate that this is particularly
important when a settlement agreement has the potential to bias a
witness's testimony. IPI Civil (2000) No. 2.03, Notes on Use, at

18.

In this case, Dr. Ferguson testified at trial as a
defendant, not as a party to a settlement agreement. He did not
reach an agreement with the plaintiff until after the jury heard
all of the evidence, was instructed on the applicable laws, and

sent to deliberate. Therefore, concerns about whether the
agreement biased his testimony were lessened. In addition, the
jury specifically found against Dr. Hameeduddin on each count.
On the verdict form the jury had the option of finding for or
against Dr. Ferguson and Dr. Hameeduddin, individually, on each
count. If the jury had believed that Dr. Hameeduddin was only a
"peripheral defendant," it could have found as such on the
verdict form. We also cannot say the trial court abused its
discretion when it determined that deliberations had been on
going for "a substantial period of time" when the instruction was
tendered and the instruction would have put undue emphasis on the
case against Dr. Hameeduddin. Accordingly, we find that the
trial court did not err in refusing to tender the instruction.

D. Costs

Dr. Hameeduddin argues that the trial court erred when it
assessed the costs of Dr. Ferguson's videotaped evidence
deposition against her. She contends that the evidence
deposition was not necessary and that the plaintiff neither
requested that Dr. Ferguson's evidence deposition be videotaped
nor paid for it.

In Illinois, a prevailing party may recover costs if a
statute or supreme court rule so provides. Irwin v. McMillan,
322 Ill. App. 3d 861, 864, 750 N.E.2d 1246 (2001). The supreme

court defines costs as "allowances in the nature of incidental
damages awarded by law to reimburse the prevailing party, to some
extend at least, for the expenses necessarily incurred in the
assertion of his rights in court." Galowich v. Beech Aircraft
Corp., 92 Ill. 2d 157, 165-66, 441 N.E.2d 318 (1982). Supreme
Court Rule 208(d) notes that these "fees and charges may in the
discretion of the trial court be taxed as costs." 134 Ill. 2d R.
208(d). A trial court's judgment awarding costs will not be
reversed absent an abuse of discretion. Irwin, 322 Ill. App. 3d
at 864.

Dr. Hameeduddin argues that the plaintiff did not pay for
the videotaped deposition and he, therefore, should not be able
to recover its costs. Both parties indicated that Dr. Ferguson's
evidence deposition was taken at the request of Dr. Ferguson's
attorney out of concern for Dr. Ferguson's health. Supreme Court
Rule 206(g)(5) provides: "The party at whose instance the
videotaped deposition is taken shall pay the charges of the
videotape operator for attending and shall pay any charges for
filing the videotape of an evidence deposition." 188 Ill. 2d R.
206(g)(5). If Dr. Ferguson's attorney requested that the
deposition be videotaped, pursuant to Rule 206(g)(5) Dr. Ferguson
would have been responsible for those costs. However, at oral
arguments the plaintiff's attorney indicated that the plaintiff

bore the cost of Dr. Ferguson's videotaped evidence deposition.
Further, we note that the record shows that it was "taken by the
plaintiff."

Assuming that the plaintiff bore the costs of the videotaped
evidence deposition, he cannot recover those costs unless the
deposition was "necessarily used at trial," that is, it was
"indispensable" to the trial. Irwin, 322 Ill. App. 3d at 865.
The mere use of an evidence deposition at trial does not mean
that the deposition was "necessary" or "indispensable" to trial.
Further, the unavailability of a witness does not, by itself,
rise to the level of being "indispensable." Irwin, 322 Ill. App.
3d at 866 and cases cited therein.

Prior to trial, Dr. Ferguson was diagnosed with a serious
illness. He testified that although it would be difficult to
attend the hearing every day, "I think I can come every day but I
wouldn't stay for too long." Accordingly, his videotaped
deposition was not "necessary" or "indispensable" to the trial.
We therefore vacate the trial court's order awarding the
plaintiff $1,009.55 for Dr. Ferguson's videotaped evidence
deposition. See Irwin, 322 Ill. App. 3d at 869.

CONCLUSION
For the reasons stated, we affirm in part and vacate in part
the judgment of the trial court.

Affirmed in part and vacated in part.
SOUTH, J., concurs.
WOLFSON, J., dissents.

JUSTICE WOLFSON, dissenting:

Dr. Hameeduddin did not serve her patient well when she failed
to tell her about the site of surgery discrepancies between Dr.
Ferguson's post-operative report and the second MRI.  The jury had
the right to find that was a deviation from the standard of care,
thin as it might be.  At the same time, I believe the evidence
concerning proximate cause, when viewed most favorably to the
plaintiff, so overwhelming favors the defendant that the verdict
for the plaintiff cannot stand.  Snelson v. Kamm, 204 Ill. 2d 1, 42
(2003); Scardina v. Nam, 333 Ill. App. 3d 260, 270 (2002).

     Plaintiff has pursued a theory, successfully so far, that
never has been approved by any reported decision in this State.
The plaintiff's theory is that Dr. Hameeduddin's failure to inform
Mrs. Mansmith that Dr. Ferguson operated on the wrong part of her
body was a proximate cause of the injuries incurred when Dr. Wiz
recommended an epidural steroid injection, which then caused the
acute staph infection that killed her.

Plaintiff cites informed consent cases to support his
contention that he did not have to present expert testimony to
establish proximate cause.  See, for example, Coryell v. Smith, 274
Ill. App. 3d 543 (1995); Zalezar v. Vercimak, 261 Ill. App. 3d 250
(1993); Casey v. Penn, 45 Ill. App. 3d 1068 (1977).

Our Supreme Court never has adopted the proposition that
expert testimony is not required to prove proximate cause in
informed consent cases.  In fact, in a case involving a lack of
communication between nursing staff and the attending physician the
Supreme Court referred to the "general rule" that must be applied:
"except in very simple cases, expert testimony is necessary in
professional negligence cases to establish the standard of care and
that its breach was the proximate cause of the plaintiff's injury."
Snelson v. Kamm, 204 Ill. 2d at 43-44. (Emphasis added).

The case we decide today is not a "simple case."  More
significantly, it is not an informed consent case. The plaintiff
does not claim the defendant failed to warn Mrs. Mansmith about
foreseeable risks and complications involved in medical treatment
performed by the defendant or someone under the defendant's
control. See Coryell, 274 Ill. App. 3d at 549. In fact, the
plaintiff expressly disclaims any desire to categorize this case as
an informed consent case.

Nor is this a case where the defendant's negligence
"compromised the effectiveness of treatment received or increased

the risk of harm to the plaintiff." Holton v. Memorial Hospital,
176 Ill. 2d 95, 119 (1997).  That is, this is not a "loss of
chance" case where the theory is used to prove cause-in-fact.
Scardina v. Nam, 333 Ill. App. 3d at 269.

What, then, is this case?  Plaintiff calls it a "failure to
inform case."  But he offers no support for the proposition that
such a theory exists in this State.  The barrier faced by plaintiff
is the well-established proposition that in this medical negligence
case he must "establish, to a reasonable degree of medical
certainty, that the defendant's malpractice more probably than not
caused his or her injury."  Aguilera v. Mount Sinai Hospital
Medical Center, 293 Ill. App. 3d 967, 972 (1997).  The causal
connection must not be contingent, speculative, or merely possible
but, rather, "must be shown by such a degree of probability as to
amount to a reasonable certainty that such a nexus exists."
Scardina v. Nam, 333 Ill. App. 3d at 271; Susnis v. Radfar, 317
Ill. App. 3d 817, 827 (2000).  Generally, simply creating a
condition which makes the injury possible is not, standing alone,
enough to establish proximate cause.  Unger v. Eichleay Corp., 244
Ill. App. 3d 445, 451 (1993).

The factual chain from the defendant's lack of candor to the
acute staph infection that killed Mrs. Mansmith has been stretched
beyond the breaking point.  The evidence invites the jury to guess
and speculate. Dr. Brown's testimony engraved the invitation.

From the simple fact that at one point the Mansmiths expressed a
desire to go to the University of Chicago Medical Center for a
second opinion Dr. Brown concluded she would have sought a
neurosurgical reevaluation and had a second operation.  That is
unsupported speculation.  The Mansmiths did not seek a referral to
the University of Chicago until after Mrs. Mansmith received the
injection.

On several occasions, the trial court sustained objections
when Dr. Brown attempted to testify to what, in his opinion, Mrs.
Mansmith would have done if the defendant had told her about the
discrepancy between Dr. Ferguson's operative report and the second
MRI. The grounds for the objection were that the witness was being
asked to speculate.  The trial court rulings were correct. But
then the jury was allowed to engage in that same speculation.

Plaintiff's cause is not aided by the fact that the defendant
failed to inform Dr. Ferguson he might have operated on the wrong
part of Mrs. Mansmith's back.  The Mansmiths had decided not to
return to Dr. Ferguson even before they learned about his misplaced
surgery. For what conceivable reason would they return to him
after learning about his gross negligence?

Dr. Wiz had access to Mrs. Mansmith's medical records.  He
recommended the epidural injection instead of the surgery because
Mrs. Mansmith had increased risk factors for surgery and had
suffered previous postsurgical problems.  Neither at his deposition

nor at trial was Dr. Miz asked the question that might have
fortified the plaintiff's causation theory.  He never was asked if
he would have recommended surgery instead of the epidural injection
if he had been told that Dr. Ferguson may have operated at the
wrong level.  That omission speaks volumes. We are left with no
credible evidence that the defendant's failure to inform Mrs.
Mansmith had substantial impact on Dr. Wiz's decision to use the
epidural injection.

Because I believe the evidence of proximate cause was
deficient as a matter of law, I disagree with the majority's
conclusion that the trial court did not err when it denied the
defendant's motion or a judgment n.o.v.  I also believe, given the
unusual fact situation here, it was error to refuse to tell the
deliberating jury the case against Dr. Ferguson had been settled.
The grave and unnecessary risk of tarring Dr. Hameeduddin with Dr.
Ferguson's flagrant misconduct could easily have been mitigated.
I respectfully dissent.

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