Smith v. Marvin ( 2007 )


Menu:
  •                           No. 3-06-0811
    _________________________________________________________________
    Filed December 4, 2007
    IN THE
    APPELLATE COURT OF ILLINOIS
    THIRD DISTRICT
    A.D., 2007
    MARY P. SMITH,                )    Appeal from the Circuit Court
    )    of the 12th Judicial Circuit
    Plaintiff-Appellee.      )    Will County, Illinois
    )
    v.                       )
    )    No. 03-L-517
    JOY D. MARVIN, M.D. and       )
    SURGICAL CONSULTANTS OF       )
    JOLIET, LTD.,                 )    Honorable
    )    James E. Garrison
    Defendants-Appellants.   )    Judge Presiding
    _________________________________________________________________
    PRESIDING JUSTICE LYTTON delivered the Opinion of the court:
    _________________________________________________________________
    Plaintiff, Mary P. Smith, sued defendants, Dr. Joy Marvin and
    Surgical Consultants of Joliet, Ltd., for medical malpractice.    In
    the first count of her complaint, plaintiff alleged that Dr. Marvin
    negligently performed surgery on her.       The second count alleged
    that Dr. Marvin did not properly advise plaintiff of the risks of
    surgery.    The jury found in favor of plaintiff on both counts and
    awarded her $2 million in damages, including $1 million in lost
    earnings. On appeal, defendants argue that (1) the trial court
    erred in giving certain jury instructions, and (2) the evidence did
    not support the jury's verdict on either count of plaintiff's
    complaint or its award of lost earnings to plaintiff.     We affirm.
    BACKGROUND
    In 2001, plaintiff consulted her primary care physician, Dr.
    Robert Ireland, after she noticed a swollen area in her right
    armpit.    Dr. Ireland referred plaintiff to Dr. Marvin, who ordered
    an ultrasound and mammogram.          The ultrasound and mammogram showed
    that   the    mass    was   not   cancerous.          Nevertheless,     Dr.    Marvin
    recommended surgically removing it.                  Dr. Marvin did not discuss
    with plaintiff any alternatives to surgery, such as a biopsy or
    observation.         Dr.    Marvin   informed        plaintiff   that    the    risks
    associated with the surgery included bleeding and infection but did
    not warn plaintiff that she may develop lymphedema or Reflex
    Sympathetic Dystrophy Syndrome (RSD) as a result of the surgery.
    Dr. Marvin performed the surgery and removed the mass, which
    was benign.       According to Dr. Marvin, she did not enter the deep
    axillary space (or "axilla proper") or otherwise                        violate the
    standard of care when she performed surgery on plaintiff.                         Dr.
    Marvin testified that she did not advise plaintiff of the risks of
    developing lymphedema or RSD as a result of the surgery because
    those risks were remote.          She did state that the risk of lymphedema
    when entering the axilla proper is quite high, approximately twenty
    to thirty percent.
    Soon after the surgery, plaintiff developed a seroma, which is
    a gathering of fluid beneath the skin.                 Plaintiff then developed
    lymphedema, which is fluid retention caused by a damaged lymphatic
    system.      Finally, plaintiff developed RSD. As a result of these
    conditions, plaintiff has pain and decreased mobility in her right
    arm.
    Plaintiff filed a two-count complaint against Dr. Marvin and
    Surgical Consultants.          According to Count I, Dr. Marvin, as an
    agent of Surgical Consultants, was negligent because                          she (a)
    removed excess tissue during surgery, (b) failed to perform a
    biopsy    prior      to   surgery,   and       (c)   used   inappropriate      suture
    2
    ligatures.     Count II alleged that Dr. Marvin was negligent for
    failing to inform plaintiff of the risks of the surgery.
    Plaintiff testified that after her surgery she was unable to
    return to her previous employment as a project manager at Hewitt
    Associates because of the condition of her arm.              At that job,
    plaintiff was paid an annual salary of $46,000 and would receive
    3.5% annual pay raises up to a maximum salary of $54,000.           Prior to
    surgery, plaintiff intended to work at Hewitt until she was 65
    years old.        After her surgery, she tried to seek employment
    elsewhere    by   mailing   out   resumes   but   received   no   responses.
    Plaintiff also considered other occupations but felt she could not
    perform them effectively because of the pain and drowsiness she
    experienced.
    Dr. Phillip Greenberg, a neurologist, testified on behalf of
    plaintiff.    He concluded that plaintiff suffered from RSD, caused
    by Dr. Marvin removing too much tissue during the surgery.                He
    testified that the more resection that occurs in the axilla, the
    more likely it is for a patient to develop lymphedema.             According
    to Dr. Greenberg, plaintiff will experience pain in her arm for the
    rest of her life and will become totally disabled because of her
    inability to use her right arm.
    Dr. Michael Drew, a surgeon, testified that the procedure
    performed by Dr. Marvin was too radical and was not properly
    performed.    Based on the medical records and plaintiff’s injuries,
    Dr. Drew believed that Dr. Marvin entered the deep regions of the
    axilla. He testified that Dr. Marvin deviated from the standard of
    care by using suture ligatures in the axilla, which caused or
    contributed to plaintiff developing lymphedema and RSD.             He also
    3
    opined   that    plaintiff      was   not    properly     informed    of   the
    complications    that   could    result     from   the   surgery,    including
    lymphedema and RSD.
    Dr. John Paul Sorin, a specialist in internal medicine,
    testified that plaintiff’s lymphedema was a permanent condition
    resulting from the surgery performed by Dr. Marvin.                  Dr. Sorin
    concluded that plaintiff would have pain in the future as a result
    of lymphedema.
    Dr. Robert Ireland found that plaintiff had lymphedema as a
    result of the surgery Dr. Marvin performed.               He testified that
    plaintiff is partially disabled because she has difficulty using
    her right arm.
    Testifying on behalf of defendants was Dr. David Shenker, a
    neurologist.     According to Dr. Shenker, the medical causes of
    lymphedema and RSD are unclear. He agreed that plaintiff developed
    RSD from the surgery, but he did not know why.            He testified that
    there is no way to know if plaintiff’s RSD will totally deprive her
    of the use of her arm.
    Dr. Steven Bines, a surgical oncologist, testified that Dr.
    Marvin did not enter the axilla proper during plaintiff’s surgery.
    He opined that Dr. Marvin met the surgical standard of care in her
    treatment of plaintiff.      He also testified that Dr. Marvin was not
    required to warn plaintiff of lymphedema or RSD because they were
    unusual and remote consequences of plaintiff's surgery.
    At trial, the parties disagreed about what instruction should
    be given to the jury to explain professional negligence. Plaintiff
    requested that the trial court use the 2006 version of Illinois
    Pattern Jury Instruction (I.P.I.) 105.1.           The trial judge refused
    4
    plaintiff's request because he did not believe that instruction
    accurately stated the law. Defendants offered the 2005 versions of
    I.P.I. 105.1 and I.P.I. 105.2, which the trial court also refused.
    As a result, both plaintiff and defendants offered non-I.P.I.
    instructions.     The trial court submitted plaintiff’s proposed
    instruction to the jury:
    "'Professional negligence' by a general surgeon is the
    failure to do something that a reasonably well-qualified
    general surgeon would do, or the doing of something that
    a reasonably well-qualified surgeon would not do, under
    the circumstances similar to those shown by the evidence.
    In providing professional services, a general surgeon
    must possess and apply the knowledge and use the skill
    and care ordinarily used by a reasonably well-qualified
    general surgeon under the circumstances similar to those
    shown   by   the   evidence.       A   failure   to   do   so    is
    professional negligence.
    The phrase 'deviation from the standard of care' means
    the same thing as 'professional negligence.'
    To determine the standard of care in this case, you must
    rely upon opinion testimony from expert witnesses.              The
    law does not say how a reasonably well-qualified general
    surgeon would act under these circumstances. That is for
    you to decide after basing your decision on the evidence
    presented through expert witnesses presented at trial.
    You must not attempt to determine this question from any
    personal knowledge that you may have."
    The parties also disagreed on a proximate cause instruction.
    5
    Plaintiff offered the long form of I.P.I. 15.01 to the court, while
    defendant offered the short form of that instruction.           The trial
    court allowed the long form, as set forth below, to be given to the
    jury:
    "When I use the expression 'proximate cause', I mean 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.         It is sufficient if it
    concurs with some other cause acting at the same time,
    which in combination with it, causes the injury."
    In closing argument, plaintiff’s attorney requested a verdict
    in plaintiff’s favor, including lost earnings totaling $1,450,000.
    That figure was based on plaintiff’s salary prior to her surgery
    and assumed that plaintiff would receive annual pay raises up to a
    maximum annual salary of $54,000 and also assumed that plaintiff
    would work until she was 65 years old.
    The   jury   returned    a   verdict   for   plaintiff   and    against
    defendants on both counts of plaintiff’s complaint.                 The jury
    awarded plaintiff $1 million for lost earnings, $500,000 for pain
    and suffering, and $500,000 for loss of normal life.
    I.       JURY INSTRUCTIONS
    The determination of proper jury instructions rests with the
    sound discretion of the trial court and will not be disturbed
    absent a clear abuse of discretion.          Surestaff, Inc. v. Azteca
    Foods, Inc., 
    374 Ill. App. 3d 625
    , 627, 
    872 N.E.2d 428
    , 446 (2007).
    "Whenever Illinois Pattern Jury Instructions (I.P.I.) contains
    an instruction applicable to a civil case, giving due consideration
    to the facts and the prevailing law, and the court determines that
    6
    the       jury   should    be    instructed      on    the    subject,       the   I.P.I.
    instruction shall be used, unless the court determines that it does
    not accurately state the law."                  177 Ill.2d Rule 239(a) (1999).
    I.P.I. instructions should be modified if they do not accurately
    state the law.         Ruperd v. Ryan, 
    291 Ill. App. 3d 22
    , 36, 
    683 N.E.2d 166
    , 175 (2d Dist. 1997).
    In determining the propriety of tendered instructions, a
    reviewing court must consider whether the jury was fairly, fully
    and comprehensively informed as to the relevant legal principles.
    Campbell v. Wagner, 
    303 Ill. App. 3d 609
    , 611, 
    708 N.E.2d 539
    , 541
    (1999); Dahan v. UHS of Bethesda, Inc., 
    295 Ill. App. 3d 770
    , 
    692 N.E.2d 1303
    (1998).           The refusal to give an instruction will result
    in    a    new   trial    only    when   the    refusal      amounts    to    a    serious
    prejudice to a party's right to a fair trial.                  Dahan, 
    295 Ill. App. 3d
    at 
    777, 692 N.E.2d at 1308
    .
    A.     Professional Negligence Instruction
    Defendants argue that they are entitled to a new trial because
    the trial court improperly provided the jury with the plaintiff's
    non-I.P.I.         instruction       regarding         professional          negligence.
    According        to      defendants,     the     instruction         was      internally
    inconsistent, misleading and confusing to jurors.
    The trial judge in this case refused plaintiff's request to
    provide the 2006 version of I.P.I. 105.1 because he didn’t think it
    "state[d] the law accurately."              Specifically, he believed that it
    misled      jurors     into     believing   that      they   could     use    their   own
    experiences in assessing the standard of care.                    He concluded that
    the 2005 version of I.P.I. 105.1 was more appropriate and should be
    used in combination with the 2006 version of the instruction
    7
    because the 2005 version had been approved by the Supreme Court and
    accurately stated that the jury could determine the standard of
    care only by relying on expert testimony.               The instruction the
    trial court approved was a hybrid of the 2005 and 2006 versions of
    I.P.I. 105.1, along with the addition of one portion of a sentence
    telling jurors to determine the standard of care "after basing your
    decision     on   the   evidence   presented     through    expert   witnesses
    presented at trial."
    Based on our review of the instruction given, we disagree with
    defendants’       assertion   that     it   is   misleading,   confusing   or
    inconsistent. It clearly and accurately instructs the jury to
    determine the standard of care based on expert testimony.              This is
    a correct statement of the law.              See Pantaleo v. Our Lady of
    Resurrection Medical Center, 
    297 Ill. App. 3d 266
    , 281, 
    696 N.E.2d 717
    , 727 (1998) (jury determines standard of care from expert
    testimony). Because the instruction accurately and fairly states
    the   law,    defendants      cannot    establish    that   the   instruction
    prejudiced them, requiring a new trial.             See Dahan, 
    295 Ill. App. 3d
    at 
    777, 692 N.E.2d at 1308
    .
    B.   Proximate Cause Instruction
    Defendants contend that they are entitled to a new trial
    because the trial court improperly instructed the jury regarding
    proximate cause.        According to defendants, the trial court should
    have provided jurors with the short form of I.P.I. 15.01 because
    the only     alleged cause of plaintiff's injury was defendants’
    negligence.
    The long form of I.P.I. 15.01 is proper where there is
    evidence that something or the acts of someone other than the
    8
    defendant was a proximate cause of the injury.    See Dahan v. UHS of
    Bethesda, Inc., 
    295 Ill. App. 3d 770
    , 
    692 N.E.2d 1303
    (1998); Heitz
    v. Hogan, 
    134 Ill. App. 3d 352
    , 
    480 N.E.2d 185
    (1985); St. Clair v.
    Douvas, 
    21 Ill. App. 2d 444
    , 
    158 N.E.2d 642
    (1959).    In Chambers v.
    Rush-Presbyterian-St. Luke’s Medical Center, 
    155 Ill. App. 3d 458
    ,
    467, 
    508 N.E.2d 426
    , 432 (1987), the court found that it was proper
    for the trial court to use the long form instruction where the
    defendants argued that something other than their negligence (i.e.,
    cancer) caused the plaintiff’s death.
    Even if there is no evidence that something or someone other
    than defendants may have contributed to a plaintiff’s injury,
    courts are reluctant to find that the long form of the instruction
    prejudiced a party.     See, e.g., Drake v. Harrison, 
    151 Ill. App. 3d 1082
    , 
    503 N.E.2d 1072
    (1987); Shiner v. Friedman, 
    161 Ill. App. 3d 73
    , 
    513 N.E.2d 1295
    (1987).      According to the Comments to I.P.I.
    15.01, "it will rarely be error to give the long form of the
    instruction."
    Here, defendants claimed that something other than their
    negligence (i.e., the seroma) contributed to plaintiff’s injuries.
    Thus, it was proper for the trial court to use the long form of
    I.P.I. 15.01.   See 
    Chambers, 155 Ill. App. 3d at 467
    , 508 N.E.2d at
    432.   Additionally, the trial court’s use of the long form was not
    an abuse of discretion because it did not prejudice defendants.
    See Drake, 
    252 Ill. App. 3d 1082
    , 
    503 N.E.2d 1072
    ; Shiner, 161 Ill.
    App. 3d 73, 
    513 N.E.2d 1295
    ; I.P.I. 15.01 Comments.
    II.    SUFFICIENCY OF THE EVIDENCE
    A judgment notwithstanding the verdict (JNOV) is a question of
    law that appellate courts review de novo.      Bergman v. Kelsey, ___
    9
    Ill. App. 3d ___, 
    873 N.E.2d 486
    , 497 (2007).                  The standard for
    obtaining a JNOV is very difficult to meet.             Bergman, ___ Ill. App.
    3d ___, 873 N.E.2d at 497.        A JNOV is properly entered only if all
    the   evidence,   when   viewed     in   a    light    most   favorable    to   the
    opponent, so overwhelmingly favors the movant that no contrary
    verdict based on that evidence could ever stand.                 Barth v. State
    Farm Fire and Casualty Co., 
    371 Ill. App. 3d 498
    , 507, 
    867 N.E.2d 1109
    , 1118 (2007).       In ruling on a motion for JNOV, a court does
    not weigh the evidence or make credibility determinations.                  
    Barth, 371 Ill. App. 3d at 507
    , 867 N.E.2d at 1118.              A JNOV should not be
    granted if reasonable minds could differ as to inferences or
    conclusions to be drawn from the evidence presented.                  
    Barth, 371 Ill. App. 3d at 508
    , 867 N.E.2d at 1118.
    A request for a new trial will be granted only if the jury's
    verdict is against the manifest weight of the evidence.                         See
    Bachman v. General Motors Corp., 
    332 Ill. App. 3d 760
    , 803, 
    776 N.E.2d 262
    , 300 (2002).      A verdict is against the manifest weight
    of the evidence only if it is unreasonable, arbitrary and not based
    on evidence, or when the opposite conclusion is clearly apparent.
    
    Bachman, 332 Ill. App. 3d at 803
    , 776 N.E.2d at 300.                  It is the
    province of the jury to resolve conflicts in the evidence, to pass
    on the credibility of witnesses, and to decide what weight to give
    to the witnesses' testimony.        Maple v. Gustafson, 
    151 Ill. 2d 445
    ,
    452, 
    603 N.E.2d 508
    , 511-12 (1992).
    A.        Count I
    Defendants contend that they are entitled to a JNOV with
    respect to Count I because it was not reasonably foreseeable that
    RSD   or   lymphedema     would     result      from    plaintiff’s       surgery.
    10
    Defendants also assert that the jury's verdict was against the
    manifest weight of the evidence because the evidence fails to prove
    that defendants breached the standard of care.
    The proximate cause of an injury is ordinarily a question of
    fact, to be determined by the jury from a consideration of all the
    evidence and attending circumstances.          Hooper v. County of Cook,
    
    366 Ill. App. 3d 1
    , 7, 
    851 N.E.2d 663
    , 669 (2006); Casey v. Burns,
    
    7 Ill. App. 2d 316
    , 326, 
    129 N.E.2d 440
    , 445 (1955).               The two
    requirements for a showing of proximate cause are cause in fact and
    legal cause.     
    Hooper, 366 Ill. App. 3d at 7
    , 851 N.E.2d at 669.
    Legal cause is established if an injury was foreseeable as the type
    of harm that a reasonable person would expect to see as a likely
    result of his or her conduct.     
    Hooper, 366 Ill. App. 3d at 7
    , 851
    N.E.2d at 669.    Legal cause is not established where the causal
    connection is contingent, speculative or merely possible.                See
    Mengelson v. Ingalls Health Ventures, 
    323 Ill. App. 3d 69
    , 75, 
    751 N.E.2d 91
    , 96 (2001) (plaintiff failed to prove proximate cause
    where testimony showed the possibility of contracting RSD from
    defendant’s breach of the standard of care was 1 in 6 million).
    Here,   there   was   testimony    that   Dr.   Marvin   breached   the
    standard of care in several regards, including taking more tissue
    than was necessary during plaintiff's surgery.          Dr. Greenberg and
    Dr. Drew testified that taking too much tissue from the axilla
    could cause major complications, including lymphedema and RSD.
    Even Dr. Marvin      admitted that improperly performing the surgery
    could result in lymphedema twenty to thirty percent of the time.
    Based on the testimony presented, the jury had sufficient evidence
    from which to conclude that Dr. Marvin breached the standard of
    11
    care and that her breach proximately caused plaintiff’s injury.
    B.    Count II
    Defendants argue that the jury's verdict on Count II is
    against the manifest weight of the evidence because lymphedema and
    RSD were unforeseeable risks of the surgery.                Additionally, they
    argue that plaintiff failed to provide sufficient evidence that she
    would have refused the procedure if she had been warned of the
    risks.
    A physician has a duty to inform patients of the foreseeable
    risks and results of a given surgical procedure, and the reasonable
    alternatives to such procedure. Guebard v. Jabaay, 
    117 Ill. App. 3d 1
    , 6, 
    452 N.E.2d 751
    , 755 (1983).             The failure of the physician to
    conform to the professional standard of disclosure must be proved
    by     expert   medical     evidence,     and    failure    to   disclose      must
    proximately cause plaintiff's injury. 
    Guebard, 117 Ill. App. 3d at 6
    , 452 N.E.2d at 755.
    No    expert   testimony   is    necessary    to    establish    proximate
    causation in an informed consent case.             See Coryell v. Smith,        
    274 Ill. App. 3d 543
    , 546, 
    653 N.E.2d 1317
    , 1319 (1995).                    Proximate
    causation is determined by an objective standard, what a prudent
    person in plaintiff’s position would have decided if adequately
    informed.       
    Guebard, 117 Ill. App. 3d at 10
    , 452 N.E.2d at 757.
    Whether a failure to disclose would have changed                      plaintiff’s
    decision to have the surgery is a question for the jury.                        See
    
    Coryell, 274 Ill. App. 3d at 550
    , 653 N.E.2d at 1322 (because the
    issue of proximate causation in an informed consult case relates to
    what     a   person    of   ordinary      prudence    would      do    under    the
    circumstances, members of the jury can determine whether a prudent
    12
    person would    have proceeded with the proposed treatment). If
    disclosure would have caused a reasonable person in the position of
    the patient to refuse the surgery, a causal connection is shown.
    
    Guebard, 117 Ill. App. 3d at 10
    , 452 N.E.2d at 757.
    Here, there was expert testimony from Dr. Drew that Dr. Marvin
    did not properly disclose to plaintiff all of the risks of the
    procedure, including lymphedema and RSD.    According to Dr. Drew, a
    reasonable medical professional in Dr. Marvin's circumstances would
    have done so.   Thus, plaintiff properly established that the risks
    of lymphedema and RSD were not unforeseeable and should have been
    disclosed to plaintiff prior to her surgery.
    Although there was no expert testimony that plaintiff would
    not have undergone the surgery had she been properly informed of
    the risks, no expert testimony on that issue was necessary.1     See
    
    Coryell, 274 Ill. App. 3d at 546
    , 653 N.E.2d at 1319.   Rather, it
    was for the jury to determine, based on an objective standard, if
    a person in plaintiff's position would have decided to undergo the
    surgery had she been fully advised of all of          the risks and
    alternatives. See 
    Guebard, 117 Ill. App. 3d at 10
    , 452 N.E.2d at
    757.
    In this case, Dr. Marvin testified that she did not suspect
    that the growth in plaintiff's armpit was cancerous based on the
    1
    Defendants assert that plaintiff was required to provide
    "objective evidence" that she would not have consented to the
    procedure had she been adequately informed of the risks, citing
    Zalazar v. Vercimak, 
    261 Ill. App. 3d 250
    , 
    633 N.E.2d 1223
    (1993)
    and Lowney v. Arciom, 
    232 Ill. App. 3d 715
    , 
    597 N.E.2d 817
    (1992). To the extent that those cases can be interpreted to
    require expert testimony that a reasonable person in the
    plaintiff's position would have refused the procedure had she
    been informed of all the risks, we hereby reject them.
    13
    negative   ultrasound   and     mammogram.     Nevertheless,   Dr.   Marvin
    recommended surgically removing the mass without explaining to
    plaintiff the risks of surgery, including lymphedema and RSD.
    Based on this evidence, the jury could have reasonably concluded
    that plaintiff would not have chosen to have the mass surgically
    removed had she been adequately informed of the risks.
    C.    Lost Earnings
    Defendants argue that the jury's award of $1 million in lost
    earnings to plaintiff was against the manifest weight of the
    evidence because plaintiff did not establish that she could not
    work as a result of her injury.
    Generally, the measure of damages for impairment of earning
    capacity is the difference between the amount which the plaintiff
    was capable of earning before her injury and that which she is
    capable of earning after the injury.          Patel v. Brown Machine Co.,
    
    264 Ill. App. 3d 1039
    , 1061, 
    637 N.E.2d 491
    , 505 (1994).                 A
    plaintiff may testify that her injuries diminished her capacity to
    work, and the general rule is that the appearance of the plaintiff
    on the witness standard, her testimony as to the nature of her
    injuries and their duration is sufficient to take the question of
    impaired earning capacity to the jury.         
    Patel, 264 Ill. App. 3d at 1061
    , 637 N.E.2d at 505.      A jury may award future lost wages if the
    record reflects that plaintiff sustained a permanent injury that
    prevents her from being employed.         Mikus v. Norfolk and Western Ry.
    Co., 
    312 Ill. App. 3d 11
    , 
    726 N.E.2d 95
    (2000).
    Here, Dr. Greenberg testified that plaintiff will be totally
    disabled as a result of the injuries she sustained from the surgery
    Dr. Marvin performed.    Plaintiff testified that she was unable to
    14
    return to her previous employment as a result of the surgery and
    was unable to obtain new employment since the surgery.   She also
    testified that her pain and pain medication make her unable to
    work.   No one refuted that evidence.       Based on the evidence
    presented, the jury’s award of lost earnings was not against the
    manifest weight of the evidence.
    III.   CONCLUSION
    The order of the circuit court of Will County is affirmed.
    Affirmed.
    CARTER and MCDADE, JJ., concurring.
    15