Downey v. Dunnington ( 2008 )

NO. 4-07-0681
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
SANDRA G. DOWNEY, n/k/a SANDRA G. HART, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Sangamon County
GARY DUNNINGTON, M.D., and SIU PHYSICIANS ) No. 02L331
AND SURGEONS, INC., )
Defendants-Appellees. ) Honorable
) Robert J. Eggers,
) Judge Presiding.
_________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE APPLETON delivered the opinion of the court:
Plaintiff, Sandra G. Downey, sued a surgeon, Gary Dunnington, and his
employer, Southern Illinois University (SIU) Physicians and Surgeons, Inc., for medical
malpractice. This is an informed-consent case. The jury returned a verdict for the
defendants, and plaintiff appeals. She argues the trial court erred in certain rulings it
made before and during trial. She also argues the verdict is against the manifest weight
of the evidence and, for that reason, the court should have granted her a new trial. We
find error in two evidentiary rulings; but we conclude that if the court had ruled the
other way, the verdict would have been the same. Because the verdict has some basis in
the evidence, we find no abuse of discretion in the denial of plaintiff's motion for a new
trial. Therefore, we affirm the judgment.
I. BACKGROUND
A. The Second Amended Complaint
The second amended complaint has two counts. The first count is against
Dunnington and sounds in professional negligence. The second count is against SIU
Physicians and Surgeons, Inc., and sounds in respondeat superior.
The factual allegations in count I, incorporated into count II, are as
follows. On February 14, 2000, plaintiff had an appointment with a physician, Elvin
Zook (who is not a party to this case). Plaintiff's mother, Betty Hart, came along with
her to this appointment, and Zook wrote down in plaintiff's medical records that Betty
had a history of bilateral breast cancer. Actually, that information was incorrect: Betty
never had cancer in both breasts. Zook referred plaintiff to Dunnington, and she went to
her appointment with him on February 16, 2000. Dunnington wrote the same
erroneous information in plaintiff's medical records--that her mother had bilateral
breast cancer. He also wrote that plaintiff's mother and sister both had a history of
ovarian cancer. That information likewise was incorrect: neither of them ever had
ovarian cancer. Given the family medical history as Dunnington understood it, plaintiff
was a candidate for genetic testing to determine whether she was genetically
predisposed to develop breast cancer. Dunnington told her that the Department of
Public Aid would not cover genetic testing. He failed to inform her, however, of the
grants that were available to cover genetic testing. He recommended bilateral
prophylactic mastectomies "as a treatment option." Plaintiff alleges "[i]t was not the
accepted standard of care, among reasonably well[-]qualified surgeons[,] to recommend
prophylactic mastectomies for patients who had risk factors similar to [plaintiff's] actual
risk factors." Relying on Dunnington's erroneous advice and "unaware that she was not
at very high risk for contracting breast cancer," plaintiff agreed to bilateral prophylactic
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mastectomies, which Dunnington performed on March 17, 2000. In the same surgery,
Zook inserted breast implants and reconstructed plaintiff's breasts. A pathological
examination of breast tissue from the surgery revealed no malignancy.
Paragraph 23 of counts I and II accuses Dunnington of medical
malpractice. It reads as follows:
"23. *** [A]t the same time and place mentioned in
the preceding paragraphs, the [d]efendant, Gary
Dunnington, M.D., notwithstanding his duty to act as a
reasonably careful physician, committed one or more of the
[following] negligent acts or omissions:
(a) failed to properly investigate
[p]laintiff's family history of cancer[,]
(b) failed to refer [p]laintiff for genetic
testing[,]
(c) allowed considerations of [p]laintiff's
ability to pay for genetic testing to affect the
manner in which he presented treatment
options to the [p]laintiff[,]
(d) failed to inform [p]laintiff that
grants were available to obtain genetic
testing[,] [and]
(e) performed prophylactic
mastectomies on the [p]laintiff without
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sufficient medical indications."
The second amended complaint alleged that as a result of such negligence,
"both of [p]laintiff's breasts were removed and breast implants were inserted[;] [she]
developed seroma and a staphyloccus infection[,] requiring removal of the implants and
further hospitalization[;] [she] has been permanently disfigured for life[;] [and she]
underwent removal of her ovaries and uterus." In further consequence, she "missed
significant time from work endeavoring to be healed of her injuries"; she "[has]
experienced[,] and will continue to experience[,] pain and suffering"; and she has
incurred medical bills and will continue to incur them.
B. The Affirmative Defense
The affirmative defense alleges that the misinformation was plaintiff's
fault. Defendants plead as follows:
"1. Sandra Downey had a duty to provide accurate
information to the [d]efendants.
2. Sandra Downey gave inaccurate information
regarding her personal and family history.
3. In reliance on the information Sandra Downey
provided, the [d]efendants offered treatment options[,]
including bilateral prophylactic mastectomies."
C. Defendants' Motion in Limine
On February 22, 2007, defendants filed a motion in limine, in which they
sought to bar plaintiff from suggesting to the jury that Dunnington declined to refer her
for genetic counseling because of her lack of funds. Specifically, the motion sought to
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bar the following allegations from trial:
"4. Dr. Dunnington did not refer Sandra Downey for
genetic counseling because Medicaid/[p]ublic [a]id would
not cover the cost of genetic testing.
5. Dr. Dunnington did not refer Sandra Downey for
genetic counseling and testing because she was unable to pay
for those services."
On February 23, 2007, the trial court held a hearing on the motion in
limine. Defendants' attorney told the court he was concerned that in her discovery
deposition, plaintiff's medical expert, Barbara L. Weber, had offered an opinion in which
she assumed facts having no basis in the evidence: she opined it would be a breach of the
standard of care to refuse to refer plaintiff for genetic testing on the ground that plaintiff
could not pay for it. But, according to defendants' attorney, the record was devoid of
evidence that money had anything to do with Dunnington's not referring plaintiff for
genetic testing. Defendants' attorney quoted Weber's discovery deposition, in which he
asked her the following question:
"Q. What is your understanding o[f] the reasons
Sandra Downey did not pursue genetic testing?
***
[A.] My interpretation of the record[,] including the
deposition of Dr. Dunnington[,] was that it was his
impression that she was very likely to have a mutation and it
was very unlikely that Medicaid would cover the cost of her
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testing[] and, therefore, he didn't follow up on referring her
to the genetic counselors. Not that it didn't happen[,] but I
am not aware that he tried to refer her and she refused to go.
It was my impression that he never referred her
because of the reasons I just stated."
In Weber's opinion, "decisions about taking care of patients should not be
made on the basis of their ability to pay." Defendants' attorney asked her:
"Q. And Dr. Dunnington and Dr. Zook did not do that,
agreed?
A. My interpretation[,] as is on the record
previously[,] is that one reason, if not the reason, that Dr.
Dunnington did not refer Sandra Downey to the genetic
counselors was his concern that she was not able to pay for
that service and for the associated genetic testing. That was a
significant factor.
From my interpretation of what I have been
provided[,] that played a substantial role in the decision not
to send her[,] and I don't believe that's the standard of care.
And I do believe that if he sent her[,] neither Dr. Dunnington
nor Sandra Downey would be in the mess that they are in
right this moment."
Defendants' attorney argued to the trial court that the record contained no
evidence to support Weber's "interpretation"--there was no evidence that Dunnington
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tried to dissuade plaintiff from undergoing genetic testing, let alone that he did so
because of her poverty. Citing our decision in Coffey v. Brodsky, 165 Ill. App. 3d 14, 24,
518 N.E.2d 638, 644 (1987), he argued that an expert should not "offer[] an opinion
about *** facts which didn't exist." Just because Dunnington told plaintiff that public
aid would not cover genetic testing, it did not follow that he denied her genetic testing;
he was obligated to warn her that some procedures might not be covered. Defendants'
attorney quoted Dunnington's discovery deposition, in which plaintiff's attorney
referred to her client's "opt[ing] not to have" genetic testing:
"Q. Now, given the fact that Sandy didn't have money
for the BRCA 1 [(breast cancer gene 1)] testing, do you
believe it was a reasonable decision on her part to opt not to
have it?
A. Again, I try [to be] very careful[,] as a
breast[-]cancer surgeon[,] not to judge people's choices,
because I'm dealing almost daily with patients [to whom] I've
given recommendations and [whom I've] allow[ed] *** to
make choices for whatever reasons they may choose.
Usually[,] when a patient chooses not to have genetic
testing, the reason is that she believes[--]and we focus on
this discussion as we're talking about it[--]usually[,] she
believes that it would not impact her decision.
And my assumption here would have been[] that
Sandra had pretty much[,] in her mind[,] committed that
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that's the operation she wanted.
In my discussion with her[,] it was very clear she had
already given a lot of thought about this. She had talked to
Doctor Green about it[--or to] Doctor Zook[,] at least[,]
about the reconstructive options[--]and she was very
emphatic that this option, in her opinion, was the best one
for her.
And[,] so[,] I can only assume that's probably why the
genetic testing was not a major factor, particularly when I
said[] she still would be [at] an increased risk even if it were
negative.
Q. You don't have any firsthand knowledge[,] though,
of *** the *** specific reason why she [did] not opt[] for it?
A. That's correct.
Q. And, in fact, if it was the cost, the money, you
wouldn't have any reason to doubt that, would you?
A. No."
Defendants' attorney also cited Dunnington's testimony that he was "very
careful not to make decisions, recommendations, based on whether or not there [would]
be payment for a procedure that [he did]. It [did not] enter into [his] decision." In sum,
defendants' attorney argued, all Dunnington did was simply "la[y] it on the line that if
[p]ublic [a]id [did not] cover it, you may be personally responsible. [Plaintiff] came
back. She chose the option of surgery. She didn't choose genetic testing, and it wasn't a
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matter of cost."
Plaintiff's attorney responded by citing plaintiff's testimony, in her
discovery deposition, that the reason why she chose not to undergo genetic testing was
she lacked the means of paying for it. Plaintiff's attorney also quoted the following
question and answer in Dunnington's deposition:
"Q. Would you agree that if Sandy didn't have the
$2,000, *** the BRCA 1[/] BRCA [2] testing was not an
option for her[?]
She didn't have the money, she couldn't get the test?
A. Correct."
After reviewing the testimony with the attorneys and hearing their
arguments, the trial court saw no evidence that plaintiff's lack of funds was the reason
why Dunnington did not refer her for genetic testing (although lack of funds might well
have been the reason why she declined genetic testing); Dunnington merely told plaintiff
an economic fact: these were expensive procedures, and she would have to pay for any
procedures that public aid did not cover. Plaintiff's attorney responded:
"MS. de SAINT PHALLE: But he also told her[,] ['W]e
can take off your breasts. We can chop off your breasts and
take your ovaries, but we will cover that. We will cover that,
so you won't have to pay for that option. You will have to pay
for the genetic testing, but[,] on the other hand, if we take off
your breasts and ovaries, you won't have to pay for it.[']"
The court was unpersuaded. It seemed to the court that plaintiff was trying to make
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Dunnington responsible for financial realities beyond his control. The court saw no
evidence, from the depositions, that plaintiff chose genetic testing but Dunnington
vetoed that choice because of her inability to pay; rather, it appeared that plaintiff
herself declined genetic testing because she could not pay. Lack of money might have
motivated her, but it did not motivate Dunnington. Therefore, the court granted
paragraphs 4 and 5 of defendants' motion in limine.
D. The Striking of Testimony from Weber's Evidence Deposition
1. Objections on the Grounds of Irrelevancy and Violation of the Order in Limine
In a hearing on March 8, 2007, the trial court sustained the relevancy
objections that defendants' attorney made on February 27, 2007, in Weber's evidence
deposition. In her brief, plaintiff complains of the consequent striking of the following
testimony from the deposition (we quote the page of the record that she cites):
"BY MS. de SAINT PHALLE:
Q. Doctor, the--I want you to assume that one of the
reasons why Dr. Dunnington didn't send Sandra Downey for
genetic counseling was because she could not pay for genetic
testing. If, in fact, Dr. Dunnington did that, would that
conduct fall within the standard of care of a reasonabl[y]
careful surgeon at an academic medical center?
MR. HARLESS [(defendants' attorney)]: I object to
that question because that's been the subject of a motion in
limine[] and I believe there are no facts upon which she
could base an opinion on that topic or on that opinion [sic].
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MS. de SAINT PHALLE: Okay.
Q. Do you remember the question?
A. No.
Q. Okay. I will read it again.
MR. HARLESS: Just for the record, let me just show
my objection now so I won't have to interrupt your question
and answer again. Is that fair?
MS. de SAINT PHALLE: Sure, right.
BY MS. de SAINT PHALLE:
Q. Doctor, I want you to assume that one of the
reasons why Dr. Dunnington didn't send Sandra Downey for
genetic counseling was because Sandra could not--indicated
that she could not pay for the genetic testing. If Dr.
Dunnington did that, would that conduct fall within the
standard of care of a reasonably careful surgeon practicing at
an academic medical center?
MR. HARLESS: Show my objection.
A. I believe it would not.
Q. And could you tell me why?
MR. HARLESS: Same objection.
A. I think there are two answers. The first is that
there's great value to genetic counseling[,] whether the
genetic testing is actually performed or not. Many people
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will see a genetic counselor and not ultimately have the
testing for a variety of reasons.
I also believe that making medical decisions based on
a physician['s] or surgeon's opinion on what might or might
not be affordable to the patient is not the standard of care[,]
either.
Q. All right. Let me give you another assumption. I
want you to assume whether--assume that Dr. Dunnington
told the patient that if she wanted to have the genetic testing,
she would have to be able to pay the $2,000 for the test but,
on the other hand, *** if she chose to have the bilateral
prophylactic mastectomies, *** she would not have to pay for
that procedure.
Do you have an opinion, to a reasonable degree of
medical certainty, as to whether that advice conforms to the
standard of care that would be--that would be made by a
reasonably careful surgeon at an academic medical center?
MR. HARLESS: Let me tender an objection to the
hypothetical question because it does not state material facts
that are in evidence in this case, at least in the discovery
depositions of this case, and it excludes important material
facts and, therefore, is incomplete. I would also object
because this has been the subject of a motion in limine and
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has been ruled, at least at this point, to be inadmissible.
BY MS. de SAINT PHALLE:
Q. Go ahead.
A. I believe that would be far outside the standard of
care and that it would actually be coercive and wrong to the
patient.
Q. Why is that?
MR. HARLESS: Same objection.
A. Because this patient was very much afraid of
getting cancer. She had very little money, and she came in
asking about the prophylactic surgery. She would then have
been told, ['Y]es, you can either have what you are asking for
free[,] or you can pay $2,000 for a test to see if you need it.[']
I just don't think that's a fair position to put a patient in. I
don't think they could make a good decision under those
circumstances.
Q. All right."
As the trial court explained to counsel, it was sustaining defendants'
objections and striking the above-quoted text from Weber's evidence deposition because
"it would [have been] conjecture on anyone's part to determine why it [was that
Dunnington] didn't refer [plaintiff for genetic counseling]. He has said that he didn't
refer her because she didn't want to go--she wanted to have the surgeries, I believe."
Defendants' attorney added: "She chose not to have the genetic testing, and she chose to
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have the surgery instead. She chose among her options." "Yeah," the court said in
agreement.
In response, plaintiff's attorney pointed out the following portions of
Dunnington's discovery deposition:
"Q. Well, given the fact that you knew [plaintiff] was
on [p]ublic [a]id, you knew that she had limited funds by
definition, correct?
A. That's correct.
Q. Have you had patients, other patients on [p]ublic
[a]id[,] [who] have, at that period of time, obtained BRCA
1/BRCA 2 testing?
A. I can't give a definite answer, but I can't recall any
that have.
***
Q. Would you agree that if Sandy didn't have the
$2,000, *** the BRCA 1[/]BRCA [2] testing was not an
option for her?
She didn't have the money, she couldn't get the test?
A. Correct.
***
Q. You don't have any firsthand knowledge[,]
though[,] of the reason why, specific reason why she [did]
not opt[] for it?
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A. That's correct.
Q. And, in fact, if it was the cost, the money, you
wouldn't have any reason to doubt that, would you?
A. No."
Dunnington further testified, in his deposition, that he never told plaintiff,
one way or the other, whether she should have prophylactic mastectomies: "My role as a
clinician is to say, ['H]ere are the options, here are the factors you should consider in the
discussion with your physicians and your family, and you should make the decision." He
merely told plaintiff that if she chose prophylactic mastectomies, he "believe[d] that
would have been a reasonable choice." When explaining the options to her, he did not
believe public aid would cover prophylactic mastectomies any more than it would cover
genetic testing.
Plaintiff's attorney asked Dunnington in his deposition:
"Q. Well, why did you tell her[,] then--if you didn't tell
her that you didn't think [p]ublic [a]id would cover the
prophylactic mastectomies, why did you tell her that [p]ublic
[a]id wouldn't cover the BRCA 1/BRCA 2 testing?
A. Very simple reason[:] because I knew the only way
for her to get BRCA 1 testing was for her to pay out-of-
pocket.
However, I was quite confident the hospital would
cover the charges[] as well as the practice plan. We routinely
treat patients who have no ability to pay if we believe it's a
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medical necessity.
So[,] the operation could have been done without her
ability to pay, but the BRCA testing could not have [been
done].
Q. Well, the--don't you think it would be significant to
a patient to know whether or not [p]ublic [a]id would cover
the operation?
A. That's why, once Sandy made the decision, we
began[--]again, as we always do[--]at least a request. This
request was submitted by Doctor Zook's office[,] and we fully
anticipated the answer would be, ['W]ill not cover,['] at
which time we would have Sandra go to the practice plan and
discuss payment and how it would have been dealt with.
And we were very surprised that they[--]essentially, in
this case, again, for the first time that I can recall[--]agreed
that it was medically necessary and elected to pay for the
procedure."
Still unpersuaded, the trial court adhered to its ruling: insomuch as Weber opined, in
her evidence deposition, that Dunnington violated the standard of care by denying
genetic counseling to plaintiff on the ground that she could not pay for it, that opinion
was irrelevant, and should be stricken, because its factual predicate lacked any basis in
the evidence.
2. Objection on the Ground That the Answer Was Unresponsive to the Question
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In Weber's evidence deposition, defendants' attorney asked Weber:
"Q. Doctor, isn't it true that even if Sandra Downey
had undergone genetic counseling, you can't say that she
would have had genetic testing, can you?
A. No, but I can say that if I think she had a bilateral
prophylactic mastectomy[] in the absence of genetic testing,
that would have been a mistake.
MR. HARLESS: I move to strike her answer as
nonresponsive.
Q. Isn't it true, Dr. Weber, that even if Sandra Downey
had undergone genetic counseling, you can't say that she
would have had genetic testing, can you?
A. No."
In the hearing of March 8, 2007, defendants' attorney moved to strike the
first question and answer, quoted above, on the ground that the answer was
unresponsive to the question (the same objection motion he had made in the evidence
deposition itself). Plaintiff's attorney opposed the motion for two reasons: the answer
was responsive to the question, and, alternatively, it was "inappropriate *** to ask an
outside witness what Sandra Downey would have done," for the outside witness's
opinion in that respect would have been irrelevant and speculative. Over plaintiff's
objection, the trial court granted defendants' motion to strike.
E. Defendants' Motion for Partial Summary Judgment
On March 5, 2007, defendants filed a motion for summary judgment, in
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which they sought a summary determination in their favor on paragraphs 23(c) and (d)
of counts I and II of the second amended complaint. See 735 ILCS 5/2-1005(d) (West
2006). The motion stated as follows:
"1. Judgment should be entered in favor of
[d]efendants because there is no genuine issue as to any
material fact that Dr. Dunnington did not allow
considerations of [p]laintiff's ability to pay for genetic testing
to affect the manner in which he presented treatment options
to the [p]laintiff.
2. Judgment should also be entered in favor of
[d]efendants because there is no genuine issue as to any
material fact that the [d]efendants did not have a duty to
inform the [p]laintiff that grants were available to obtain
genetic testing."
The trial court granted the motion for partial summary judgment on March 8, 2007.
F. Amendment of the Second Amended Complaint
On March 13, 2007, plaintiff filed a motion to amend the second amended
complaint "to replace the term 'genetic testing' with the term 'genetic counseling' in
paragraph 23(b) of [c]ount I ***, to eliminate subparagraphs (c) and (d) from the same
paragraph [(i.e., the two subparagraphs on which the trial court had entered partial
summary judgment)], [and] to conform the pleadings to the pretrial rulings made by the
court and the proof expected in this case." Simultaneously, plaintiff filed the proposed
amendment, which changed paragraph 23 to read as follows:
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"23. *** [A]t the same time and place mentioned in
the preceding paragraphs, the [d]efendant, Gary
Dunnington, M.D., notwithstanding his duty to act as a
reasonably careful physician, committed one or more of the
[following] negligent acts or omissions:
(a) failed to properly investigate
[p]laintiff's family history of cancer[,]
(b) failed to refer [p]laintiff for genetic
counseling[,] [and]
(c) performed prophylactic
mastectomies on the [p]laintiff without
sufficient medical indications."
On March 15, 2007, defendants filed an answer to the amendment of the
second amended complaint, in which they denied the allegations in modified paragraph
23.
G. The Testimony at Trial
1. Plaintiff
In 1967, when plaintiff was five years old, her mother had surgery for
breast cancer. At age 10, plaintiff found some "balloon things" in her mother's dresser
drawer, and sometime later, her mother explained to her their purpose: she had
undergone mastectomies to prevent a recurrence of cancer. Thus, from an early age,
plaintiff was aware of breast cancer in her family.
In 1996, when plaintiff was 34 years old, she discovered a lump in her right
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breast. A mammogram revealed an abnormality, but a biopsy revealed the lump to be
benign. At this very time, her grandmother was undergoing radiation therapy for breast
cancer.
In 1998, plaintiff found another lump in her breast, and the lump kept
getting bigger and was causing a "burning, fiery feeling." It did not show up in a
mammogram, and an ultrasound revealed no malignancy. The diagnosis was fibrocystic
changes in the breasts.
Plaintiff continued doing self-examinations and found another lump,
which likewise kept getting bigger but was invisible to mammogram and ultrasound.
Her obstetrician/gynecologist in Jacksonville, Guy Audet, referred her to a local
surgeon, James L. Green, who requested that she bring with her, to her appointment, a
written history of the occurrence of cancer in her family. Plaintiff's mother, Betty Hart,
wrote the history in longhand on a single sheet of paper and brought it with her when
she accompanied plaintiff to Green's office on January 19, 2000. The document lists
plaintiff's relatives on her mother's side of the family, along with the various cancers
from which they suffered over the past half-century. Under the heading "Mother Betty
Hart," the document reads: "Breast Cancer 1967" and "Ovarian Cancer 1979." Green
told plaintiff that because of her family history of breast cancer, she was "considerably at
high risk in the general population." He suggested that she consider either bilateral
prophylactic mastectomies or prophylactic Tamoxifen. He warned her that the drug
Tamoxifen was "experimental and that the side effects were risky." At this point,
plaintiff was "thinking about whether prophylactic mastectomies would be a reasonable
option." She read an article stating: "In women with a high risk of breast cancer on the
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basis of family history, prophylactic mastectomy can significantly reduce the incidence
of breast cancer."
Green referred plaintiff to another surgeon, Elvin Zook of the Institute of
Plastic and Reconstructive Surgery at SIU, for a biopsy. She went to see Zook on
February 14, 2000, and her mother came along, bringing the handwritten family history.
Plaintiff's mother was present and listened as plaintiff recited the family history to
medical personnel. Zook's resident wrote down that plaintiff's mother "developed
bilateral breast cancer and had bilateral mastectomies[] at age 27." Zook advised
plaintiff that before they made a decision on reconstructive surgery, she should see a
breast surgeon to determine whether she was even a candidate for bilateral prophylactic
mastectomies. He referred her to Dunnington.
Before seeing Dunnington, plaintiff talked with her mother, and, together,
they weighed the options. Her mother urged her to "keep an open mind and to consider
mastectomy as an option."
When plaintiff went to see Dunnington on February 16, 2000, she brought
her mammogram films as well as the family history her mother had written out. Again,
her mother accompanied her to the appointment. In Dunnington's office, plaintiff filled
out a form entitled "History." The form said: "Please answer all questions to the best of
your knowledge. The information provided by you will be used by your doctor in his/her
decisions regarding your care." Plaintiff wrote on the form that she had been having
breast pain and a "yellow white discharge" from the nipples and that the lump on her
right breast had been growing bigger and increasingly painful. She answered yes to the
question of whether she had "a family history of breast cancer" and, in explanation,
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wrote: "Mother [b]oth [b]reast[s] at 26" and "Grandmother [at] 82." Although her
mother was present at the appointment, plaintiff never asked her if her cancer had, in
fact, been in both breasts. As it turned out, plaintiff was confused: her mother had
cancer in only one breast, although she underwent a bilateral mastectomy.
At trial, defendants' attorney asked plaintiff what she had said in her
discovery deposition about the handwritten notation, in the "History" form, "Mother
[b]oth [b]reast[s] at 26." Plaintiff's attorney objected on the ground that the proposed
impeachment concerned a collateral matter; the trial court overruled the objection.
Plaintiff answered that in her deposition, she denied writing those words and professed
to be ignorant of who had written them. She admitted her deposition testimony was
incorrect in that respect and that she herself was the one who had written, "Mother
[b]oth [b]reast[s] at 26." Defendants' attorney asked her if she had told a falsehood in
her deposition. Plaintiff answered: "I felt after 100 pages of deposition, I was scared,
and I was intimidated by you." Defendants' attorney then asked her if she was aware
that defendants had hired a handwriting expert from St. Louis, William Storer, who was
prepared to testify that the handwriting in question was plaintiff's. Defendants' attorney
showed plaintiff the notice of this witness's expected appearance and testimony, which
he had mailed to plaintiff's attorney several months ago. Plaintiff answered she was
unaware of this witness.
On February 16, 2000, after plaintiff completed the "History" form,
Dunnington reviewed the information therein with her and her mother, including the
representation that her mother had cancer in both breasts at age 26. At the time,
Dunnington remarked to plaintiff that "it was a serious family history." This remark
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struck fear into plaintiff, considering that Dunnington must have "seen thousands of
women every year." Plaintiff's mother told Dunnington that she had a history of ovarian
cancer and that plaintiff's sister likewise developed ovarian cancer at age 26. Plaintiff
testified she was unclear, at that time, about her sister's medical history--she knew her
sister had undergone a hysterectomy for cancer--and, for that matter, she was unclear
about the difference between ovarian, uterine, and cervical cancer. Only later did
plaintiff learn that her mother and sister had cervical cancer in situ, not ovarian cancer,
and that cervical cancer in the family did not increase her own risk for breast cancer.
Having discussed the family history with plaintiff and her mother,
Dunnington performed a physical examination of plaintiff, including the areas in both
breasts where she felt lumps. He found a mass in another area. He also looked at the
mammograms and collected tissue for a biopsy.
After the physical examination, Dunnington discussed with plaintiff three
options: (1) Tamoxifen, (2) genetic testing, and (3) bilateral prophylactic mastectomies.
Like Green, he warned plaintiff that Tamoxifen had troublesome side effects, including
blood clots and hypertension. Plaintiff did not think she could afford Tamoxifen,
anyway. As for the genetic test, Dunnington told her it would "assist [her] in making
[her] decisions" but "there was a cost associated with that test" and public aid would not
cover the cost. Although Dunnington did not discourage plaintiff from genetic testing,
he did not push her toward it, either--and he never asked plaintiff's mother if she was
willing to undergo genetic testing. Unlike plaintiff, her mother was employed at the
time and had insurance, which, according to plaintiff's testimony, would have covered
the genetic test. Plaintiff "would have loved to have had this genetic testing," but she
- 23 -
lacked the means of purchasing it. Therefore, she considered option No. 3.
Plaintiff testified:
"A. [Dunnington] talked to me about the possibility of
prophylactic mastectomy.
Q. Okay, tell me, what did he say about the
prophylactic mastectomies?
A. *** [H]e explained to me that if they remove[d] the
tissue[,] *** the outcome would be that I would not get
cancer [or] breast cancer[;] it would eliminate my risk.
Q. Did he tell you whether or not you'd have to pay for
those?
A. *** I believe he said that I wouldn't have to pay for
them.
Q. When Dr. Dunnington mentioned the
mastectomies, what was your reaction?
A. Well, what any woman's reaction would be. You're
scared. *** I thought that my risk was so high that I should
have them.
Q. Well, why did you feel that your risk was so high
that you should have them?
A. Because *** the family history that my mother had
written out[] put us [at] a high risk, and I thought that within
the next couple of years[,] I would get cancer[] and I'd have
- 24 -
to go through mastectomies, chemotherapy[,] or possibly
death.
***
Q. What made you decide for the prophylactic
mastectomies?
A. Well, I didn't want to get cancer[,] for one [thing],
and the other two alternatives I couldn't afford.
Q. *** [Y]ou mentioned you thought *** you were
going to get cancer in the next couple of years[;] how likely
did you think you were going to get cancer in the next couple
of years?
A. Very likely.
Q. All right. If you had known that your risk of getting
cancer over a lifetime was 20[%] or 25%, would you have
agreed to get bilateral mastectomies?
A. No.
***
Q. Did Dr. Dunnington tell you that your life[]time
risk of getting bilateral mastectomies [sic] was 20[%] or
25[%]?
A. No.
Q. Did Dunnington give you any specific percentage of
what your risk factors were?
- 25 -
A. I believe he was talking in ranges, but I don't
specifically remember."
When leaving Dunnington's office on February 16, 2000, plaintiff had no
unanswered questions. Later, Dunnington's office called and told her the biopsy had
come back and the lump in her breast was benign. Plaintiff decided she wanted to be
safe and that prophylactic mastectomies were the best option for her.
Plaintiff then consulted a gynecologist, Marta Crispins, who "evaluated
[her] initially for consideration of whether [she] had ovarian cancer" (we quote from
Crispins's report). Plaintiff complained to Crispins of "a several[-]year history of left
lower quadrant cramping and bleeding." Crispins ordered some imaging studies of
plaintiff's abdomen, which revealed that plaintiff had a tumor. Having previously
undergone a tubal ligation, plaintiff chose to proceed with a hysterectomy and removal
of her ovaries at the same time as the bilateral mastectomy and breast reconstructions.
She underwent all these surgeries on March 17, 2000.
2. Plaintiff's Mother and Sister
Plaintiff's mother, Betty Hart, and plaintiff's sister, Kim Williamson, both
testified they would have given Dunnington an authorization for the release of their
medical records if he had asked them for one. The sister testified she had developed pre-
cancerous cells and undergone a hysterectomy but that she never had ovarian cancer or
breast cancer. The mother testified that sometime in the 1980s, she developed cervical
cancer and underwent a hysterectomy. She further testified her breast cancer was in the
right breast alone although she had "problems" in the left breast. She did not know
whether she had told plaintiff she had right-sided breast cancer as opposed to bilateral
- 26 -
breast cancer, for she "was a private person[] and *** took baths with [her] doors locked
and stuff. [She] kn[e]w it wasn't anything to be ashamed of, but [she] was."
3. Dunnington
Over plaintiff's relevancy objection, the trial court allowed Dunnington to
testify that he grew up in a small town, his father was a minister, and his mother was a
"stay-at-home mom." He further testified he had four children, and he described their
educational accomplishments. As for Dunnington himself, he was 53 years old and a
surgeon at SIU School of Medicine. He had been practicing in Springfield for 10 years.
He was a professor of surgery and the chairman of the department of surgery. He also
was director of the Breast Center at SIU. Most of his practice was devoted to breast
surgery. He also conducted research and had published articles and books.
Dunnington explained that just because an article had been published in a
medical journal, it did not necessarily follow that the article set forth the standard of
care. Although Dunnington had "a lot of respect" for Weber, who, like him, was a
published author, she was an oncologist rather than a surgeon, and this difference in
their specialties caused her and Dunnington to have different views of the standard of
care. Often, an oncologist did not see a patient until after the diagnosis of cancer was
made, whereas a surgeon saw patients "at all stages of activity." "[W]hen other
specialists see patients with breast lumps, the first thing they do is find a surgeon, and
it's [the surgeon's] responsibility to see those patients and put all the information
together and make a decision." The standard of care was a consensus that had evolved
among surgeons as to the most appropriate care. Through his education, training, and
experience as a surgeon, Dunnington knew the standard of care for surgeons.
- 27 -
When plaintiff came into the Breast Center on February 16, 2000, she
filled out a "History" form, and Dunnington discussed with her and her mother the
notation "Mother [b]oth [b]reast[s] at 26." Plaintiff appeared to him, at the time, to be a
reliable source of information. Defendants' attorney asked Dunnington:
"Q. What did [plaintiff and her mother] tell you about
her family history?
A. Well, that her mother developed cancer in both
breasts. [The] information I received was that it was at the
same time. You could have a cancer at one age and three or
four years later[,] a subsequent cancer, but [they]
communicated to me [that] at age 26, both breasts were
involved with cancer[,] requiring a bilateral radical
mastectomy[] and chemotherapy--gold treatment would
have been chemotherapy[--]and she communicated to me
the other aspects about ovarian cancer, the mother's cancer,
et cetera.
Q. Doctor Weber testified that whether it's one breast
or two breasts is really of little significance. Do you agree?
A. No, I do not agree with that.
Q. Can you tell us why you disagree?
A. Well, for one [thing], as you look at indications for
genetic testing, for example, often they will be very specific
that not only first-degree relative with breast cancer, but
- 28 -
often on that list, as well as bilateral cancer, and think about
what we said earlier. In order to get a breast cancer in one
breast at a young age, we have said it requires two hits to get
two breast cancers, *** so now we are talking about an even
lesser chance of that occurring by age 26, just by chance
environment, too much estrogen, et cetera, but it becomes
less likely if you have both breasts involved in cancer at a
young age, becomes more likely there's a genetic issue there."
In his consultation report, Dunnington wrote: "At this point, the patient
seems very intent on proceeding with bilateral prophylactic mastectomies." When
plaintiff came to see him on February 16, 2000, "it was clear she had spent a lot of time
thinking about this. There had been research done with her family. She [had] talked to
Dr. Green. She had talked to Dr. Zook. She [had] talked to her mother. She [had]
talked to her sister. So there was a fair decisiveness about it, that she was very, very
interested and desiring to proceed with prophylactic mastectomy." In fact, the moment
Dunnington walked into the examination room, he "looked [at] the reason they [were]
there, and it [read], 'Interested in prophylactic mastectomy'"; he knew that "[his] goal[,]
right from the beginning[,] [was] to give them good solid reasons for not wanting to
proceed, and [he] realized[,] after a bit into this encounter[,] [that] it was going to be a
challenge."
Dunnington agreed that in some cases, ordering medical records was
necessary--but he insisted this was not such a case. "I had the evidence that the mother
had a premenopausal breast cancer. That was the trigger for genetic testing to be
- 29 -
offered and encouraged[;] that's the only trigger that was necessary. Finding out that
she really didn't have ovarian cancer wouldn't have changed the need for genetic testing.
It wouldn't have changed the benefit of prophylactic mastectomy."
Given the family medical history as described to him by plaintiff and her
mother on February 16, 2000, Dunnington opined that plaintiff had as high as an 80%
chance of developing breast cancer. "[T]hat's the high end of the range," he testified;
greater specificity was impossible without genetic testing. Because he had so many
patients, he could not specifically remember what he had told plaintiff, but he would
have followed his established procedure, which was to inform the patient of a rather
wide range of risk. He testified: "I would have explained it just as I have already, that if
all we know is family history, your risk of cancer would be a low of 15[%] but as high as
30%, but if you have genetic testing and you carry the gene, it could be as high as 80%."
Plaintiff's attorney asked Dunnington:
"Q. Now, you would agree that according to
[plaintiff's] actual family history, *** her risk, given the fact
that her mother had breast cancer at an early age[,] age 28[,]
was only 15%, correct?
A. No, that's absolutely incorrect, because the way we
often do these cases--
Q. Doctor, please."
Plaintiff's attorney then impeached him with the testimony he had given in his discovery
deposition. She read him the following question and answer from his deposition:
"Q. 'Question: You mentioned what the risk of a
- 30 -
woman obtaining breast cancer who had either a mother or a
sister with premenopausal breast cancer. Answer: It would
be a range. If it's just first-degree relative postmenopausal,
it's probably three times. With premenopausal[,] it's
between--somewhere between three and five times increased
risk, so that would mean maybe 15% maximum, correct--15%
maximum[?]' And you answered, 'Correct.'
Do you recall those questions and those answers[?] If
you want to see it, I can show it to you.
A. Yeah, I stated--I've stated earlier it would be a
range, and you're picking the low end of that range.
***
Q. Let me ask it again. Doctor, do you recall that
question, 'So that would be between three and five times
increased risk, so that would mean maybe 15% maximum.'
And you answered, 'Correct?'
A. I did."
Dunnington wrote a chapter in a medical textbook, wherein he stated:
"'The first major risk factor [for breast cancer] is family history.'" He also wrote that
"'[a] strong family history in association with a young age diagnosis raises the possibility
of BRCA 1[] (breast cancer gene 1, also associated with ovarian cancer).'" He admitted,
at trial, that a woman with a history of breast cancer and ovarian cancer was 19 times
more likely to carry this breast-cancer gene than women with a history of breast cancer
- 31 -
alone. Cervical cancer, however, had not been shown to be linked to the breast cancer
gene. He admitted that women of limited education might not know the difference
between ovarian cancer and cervical cancer, and he had heard of a study finding that
patients were only 60% accurate in reporting histories of ovarian cancer. He
acknowledged that medical records were a more accurate source than the patient's oral
account and that before taking a radical step such as cutting off a woman's breasts, it
was necessary to consult "the appropriate medical records." He agreed that the
conjunction of cancers in plaintiff's family history, as represented to him, was extremely
rare (not only premenopausal cancer in both breasts but two women surviving ovarian
cancer) and that if presented with a medical history so exceptional, he would want to
confirm it--but "[o]nly if it [made] a difference in what [he was] going to discuss with
the patient or offer to her as options for therapy."
In his physical examination of plaintiff on February 16, 2000, Dunnington
found "dense fibrocystic material" in her breasts; this was a normal byproduct of
menstrual processes. Lumpy breasts did not increase the risk of cancer, but the density
of the breasts could increase the likelihood that if cancer did develop, it would be missed
in a mammography. The risk of missing cancer in a mammography went down
considerably, however, after the patient reached age 50.
Although Dunnington never told plaintiff that hers was "the worst family
history he had ever seen" (he knew better than to scare a patient that way), he might
have told a colleague something to that effect. He wrote in plaintiff's medical records:
"I have explained to the patient that she represents a very
complicated history and family history and that she is clearly
- 32 -
at significant risk for developing breast cancer. We have
talked about the possibility of genetic testing because of her
high incidence of ovarian and breast cancer in the family, but
because she has recently been declared eligible for Medicaid,
this would not be covered by that medical coverage. I have
explained that her risk factors are so significant[] that she
would probably be a good candidate for consideration of
bilateral prophylactic total mastectomies ***."
In his 20 years as a breast surgeon, he had treated "only five patients [who] felt very
strongly that [bilateral prophylactic mastectomies were] the best option for them."
Genetic testing gives the patient a more definite idea of her risk before she
chooses prophylactic mastectomies. It is a blood test performed by a corporation in
Utah, Myriad Genetics, Inc., and the test, if it had been given, would have been
performed on a blood sample from plaintiff's mother, because she was the one who had
contracted breast cancer. Only if the mother tested positive for the breast cancer gene
would plaintiff then be tested. If a woman tested positive for the BRCA 1 gene, her
chances of developing breast cancer were 80%.
Dunnington admitted that SIU had "genetic counselors as part of the
services that it provide[d]" and that "if the patient didn't have the money for genetic
counseling, as opposed to genetic testing, [SIU's] practice plan would cover it."
Although Dunnington agreed it was "the function of a genetic counselor to take a careful
family history," he believed "it would be far outside the standard of care for genetic
counselors to get medical records." Plaintiff's attorney then showed the jury an SIU
- 33 -
videotape that Dunnington himself had commissioned, in which a genetics counselor,
Lisa Rimer, stated as follows:
"We begin with a three[-]generation family history[,] ***
documenting all the different types of cancer within the
family[,] and[,] hopefully[,] we can obtain records to actually
document those specific types of cancer. After we get the
family history information, you can make a risk assessment
for that woman."
Dunnington testified that instead of sending plaintiff to a genetic
counselor, he "did the genetic counsel[ing] for her." In his opinion, a surgeon was best
qualified to do genetic counseling and risk assessment. If plaintiff had "accepted genetic
testing," he would have referred her to a genetic counselor, who then would have
explained to plaintiff, among other matters, the potential implications for her
insurability if the genetic test showed she carried the breast cancer gene.
Once plaintiff told Dunnington she wished to undergo bilateral
prophylactic mastectomies, he referred her to a gynecologist, Crispins, for advice on
whether she also should undergo prophylactic removal of her ovaries. On March 1,
2000, Crispins wrote Dunnington as follows:
"Thank you for sending Ms. Sandra Downey in consultation.
As you will recall, she is a 37-year-old white female with a
family history suggestive of hereditary breast [and] ovarian
cancer family syndrome, and[,] certainly, prophylactic
oophorectomy would be quite reason[able] in this case. I
- 34 -
have counseled this patient regarding the risks and benefits
of a prophylactic oophorectomy[,] and she does desire to
proceed."
Dunnington agreed that unless he had considered plaintiff to be a candidate for
prophylactic mastectomies, he would not have referred her to Crispins.
In his operative report, Dunnington described plaintiff as "a
38[-]year[-]old female with a very strong history for ovarian and breast cancer." This
was the only indication for bilateral prophylactic mastectomy that he stated in the
report. Another factor that led him to consider this procedure was her fear of cancer.
Dunnington maintained that if he had known that plaintiff's mother had only right-
sided breast cancer as opposed to bilateral breast cancer and that neither the mother nor
the sister had ovarian cancer, it still would have been "reasonable" to discuss
prophylactic mastectomies, considering that the mother had premenopausal breast
cancer, "which[,] again[,] significantly raise[d] her risk." He admitted, however, that
"[t]he case [for mastectomies] would not have been as overwhelming." Apart from her
mother's breast cancer, plaintiff had other risk factors--the density of her breasts and
their fibrocystic condition, multiple breast biopsies (all of them normal), breast pain,
and spontaneous nipple discharge--but these were not as important as the family history
plaintiff represented herself to have.
After Dunnington testified to these risk factors, plaintiff's attorney showed
him plaintiff's exhibit No. 24, a newsletter published in 1993 by the Society of Surgical
Oncologists (SSO), of which he was a member, and containing an article entitled, "SSO
Develops Position Statement on Prophylactic Mastectomies." The article quoted the
- 35 -
position statement. Dunnington agreed with SSO's position statement as to what the
indications were for bilateral prophylactic mastectomies. He agreed that "'only rarely is
this radical extirpative approach indicated.'" He agreed that, given plaintiff's actual
family history, she met none of the criteria for this procedure as set forth in the position
statement.
4. Weber
Plaintiff's expert, Weber, was board-certified in internal medicine and
medical oncology. She was a professor of genetics at the University of Pennsylvania and
the director of its breast center. She had published articles on prophylactic
mastectomies and breast-cancer risk-assessment in the New England Journal of
Medicine and in surgical journals. She had been an invited speaker at SSO.
Weber testified that before performing prophylactic mastectomies, a
reasonably careful surgeon should not only obtain but verify the patient's family history
and the surgeon then should use a risk-assessment tool to determine how likely it was
that the patient would develop breast cancer. The incidence of ovarian cancer in the
family greatly increased the risk that the patient carried a breast cancer gene, BRCA 1 or
2. If a woman carried that gene, she had a 60% to 80% chance of getting breast cancer.
That woman's daughter in turn would have a 40% chance of carrying the breast cancer
gene.
In Weber's opinion, Dunnington deviated from the standard of care in two
ways: (1) failing to send plaintiff to a genetic counselor and (2) failing to verify
plaintiff's family history. According to Weber, Dunnington should have sent plaintiff to
a genetic counselor regardless of whether plaintiff intended to undergo genetic testing.
- 36 -
Genetic counselors were specially trained to compile an accurate family history,
document it with medical records, and explain to the patient what her risk was. As was
well known from published studies, patients tended to err in their accounts of family
medical history, especially with respect to gynecologic cancers. There was a vast
difference between cervical cancer and ovarian cancer: cervical cancer, unlike ovarian
cancer, did not increase the risk for breast cancer. Further, none of the risk assessment
tools gave more significance to bilateral breast cancer than to one-sided breast cancer;
"the primary determinant of breast cancer risk in families [was] the age of diagnosis of
the first breast cancer[,] no matter how many subsequent breast cancers that person
[might] have had." Given plaintiff's actual family history, Weber opined that she had
only a 21% chance of developing breast cancer by age 80.
In Weber's opinion, plaintiff was not a candidate for prophylactic
mastectomies, for her actual risk of getting breast cancer was only 20% as compared to
the average risk of 12%. Weber did not regard the fear of cancer as a legitimate reason
for prophylactic mastectomies unless the patient had an 80% lifetime risk of developing
breast cancer. Had plaintiff gone to a genetic counselor, the inaccuracy of her family
history would have been discovered, and she would have avoided the unnecessary
surgery. The mother would have been tested for the breast cancer gene, and given her
actual medical history, her chances of testing positive would have been only 15%.
5. Fines
Defendants' expert, Richard Fines, was a board-certified surgeon in private
practice in Marietta, Georgia. He had lectured on breast disease and breast cancer
treatment. He also was a past president and board member of the American Society of
- 37 -
Breast Surgeons, "an organization of about a little over 2[,]000 surgeons who [were]
focused on the care of patients with breast disease."
In Fines's opinion, Dunnington complied with the standard of care in his
treatment of plaintiff. Fines testified: "[T]aking a history is actually something that we
learn in medical school, *** and the two key things that come about from that skill are
knowing *** the appropriate questions to ask, and then the second is, [I]s your patient a
reliable source[?]" As for asking the right questions, Dunnington was, in Fines's
opinion, "very methodical. He had a questionnaire filled out by the patient," and "he
actually went through the questionnaire in pretty much detail with the patient and even
made notes on the questionnaire[,] indicating that he was confirming the answers to
those questions." The family member whose medical history was being discussed was
even present, and "if there would have been anything that was being said that was
incorrect, [Fines] would [have] expect[ed] [that] the person whose history was [under
discussion would] be able to know and state whether or not that was correct or
incorrect." To Fines, it was reasonable of Dunnington to rely on the history that plaintiff
and her mother had given. Fines "didn't see any evidence or detect any evidence of a
poor historian." Defendants' attorney asked Fines:
"Q. Dr. Fines, in your work with surgeons across the
country, do surgeons routinely obtain records not of the
patients themselves, but the patient's family members[,] to
confirm a verbal history?
A. No, they do not."
Fines deemed it unnecessary to confirm that plaintiff's mother had ovarian
- 38 -
cancer. He testified:
"A. The most important issue is that [plaintiff] had a
mother, first-degree relative, with breast cancer before the
age of 30, and that[,] in and of itself[,] increases her risk.
Even if she is not a genetic carrier, her risk is in the 20[%] to
30% range, which is [3] to [5] times what the risk would be
for a woman with no risk factors at all, and so discussing
chemo prevention, for Tamoxifen reducing her risks,
discussing lifestyle changes[,] and discussing the possibility
of prophylactic surgery, if the patient comes in with that on
her mind in requesting that, I think that would be
appropriate."
Further, given the family history that plaintiff and her mother represented to
Dunnington, it was possible that plaintiff had inherited the breast cancer gene from her
mother, in which case plaintiff would have had an 80% chance of developing breast
cancer within her lifetime.
Fines testified that genetic counselors were not the only ones who could do
genetic counseling; physicians also could do genetic counseling. If a physician did the
genetic counseling, it was unnecessary to send the patient to a genetic counselor.
According to Fines, there was no "numerical cutoff" for prophylactic
mastectomy. "It's very hard[,] when you are taking care of patients[,] to apply a specific
number. You know, a patient may have a 15% risk of breast cancer, but she may have
true levels of anxiety that are affecting her quality of life, [or she might have] very
- 39 -
complicated breasts to follow." Fines disagreed with Weber that 20% was too low a risk
to justify bilateral prophylactic mastectomies.
On cross-examination, Fines testified he was a solo practitioner. He had
never worked in an academic medical center. He had never written any articles on
prophylactic mastectomies or risk assessment of patients with breast cancer. From his
general reading, he had found no articles pertinent to this case. In formulating his
opinion on the standard of care, he relied in part on his own practice. If a patient
wanted to know her risk of getting cancer, he "sometimes" sent her for genetic
counseling, as a reasonably careful surgeon would do. Articles in medical journals
stated that "genetic counseling [was] appropriate prior to doing prophylactic
mastectomies." Fines admitted that before doing a lumpectomy, he would not rely on
the patient to tell him which breast had the lump.
Fines agreed that when writing an operative report, a surgeon should state
the reasons for the surgery and the reasons should be accurate. Dunnington's operative
report stated he performed the prophylactic mastectomies on plaintiff because of her
strong family history of breast and ovarian cancer. Fines agreed that "many women
[were] sometimes confused about gynecologic cancers," especially if they had the cancer
20 years ago, in which case "they [might] not remember." Thus, "it would be important
to get the medical records to check out the accuracy of the diagnosis"--"[i]f it was going
to make a difference." Plaintiff's attorney then asked Fines:
"Q. And[,] in fact, according to what Dr. Dunnington
wrote at the time in his operative report, it did make a
difference because of the fact that he said his indication for
- 40 -
doing the surgery was breast/ovarian cancer, isn't that true?
A. That's what he wrote in the indications on his
operative report, yes."
Fines acknowledged there were clues, in Dunnington's own records, that
plaintiff's mother was not an accurate historian, for in the family history that she wrote
in preparation for the appointment with Green, she said that plaintiff's sister had "a few
cancer cells" (more precisely, the document says, "[F]ound some cancer cells"), whereas,
on the basis of his interview of plaintiff and her mother, Dunnington wrote on the
"History" form that plaintiff's sister had ovarian cancer.
Plaintiff's attorney asked Fines:
"Q. Now, Doctor, isn't it true that you would have a
difficult time saying that a patient who had a mother who
had breast cancer on her right side at age 28 would be a
candidate for prophylactic mastectomies?
***
A. Yeah, it depends on a lot of factors. It depends on,
you know, the level of anxiety of the patient, what she had
gone through, *** how many breast biopsies she had had,
[and] how often she has been alarmed by mammograms and
breast lumps."
Plaintiff's attorney showed Fines plaintiff's exhibit No. 24, SSO's position
statement from 1993. The position statement said: "'Individuals with nonproliferative
disease of the breast (fibrocystic disease) should not be candidates for mastectomy when
- 41 -
tissue biopsies have been reviewed and confirmed by qualified pathologists.'" Fines
agreed with that statement, but he added that since 1993, breast biopsies had become a
risk factor for breast cancer. To prove that the standard of care had not changed in that
respect since 1993, plaintiff's attorney showed Fines plaintiff's exhibit No. 25, the 2001
position statement of SSO, which said the same thing about fibrocystic disease as in
1993. Defendants' attorney objected to plaintiff's exhibit No. 25 on the ground that it
was published after Dunnington treated plaintiff. The trial court overruled the objection
but instructed the jury that plaintiff's exhibit No. 25 was admissible only for
impeachment, not as substantive evidence. Like Dunnington, Fines admitted that
plaintiff met none of the indications for bilateral prophylactic mastectomy as set forth in
plaintiff's exhibit No. 24.
Fines further admitted that according to the "Claus tables" published by
Weber in February 2000 in the New England Journal of Medicine, the chances of
plaintiff coming down with breast cancer by age 49 were 6%; by age 69, 11%; and by age
79, 21%. "I don't use the Claus model," he said. The other standard model for the
assessment of risk, the Gail Model, "underestimate[d] risk," in his opinion. He was
unable to say whether plaintiff would have chosen prophylactic mastectomies if she had
been told that her risk of getting breast cancer by age 49 was only 6%. He agreed,
however, that most women would choose to retain their breasts and endure the 6% risk.
At the conclusion of the evidence, the jury returned a general verdict in
defendants' favor. The trial court subsequently denied plaintiff's motion for a new trial.
II. ANALYSIS
A. Refusing To Send Plaintiff's Exhibit No. 24 to the Jury Room
- 42 -
Plaintiff's exhibit No. 24 is the newsletter of SSO published in 1993 and
containing the article entitled, "SSO Develops Position Statement on Prophylactic
Mastectomies." Plaintiff claims "[t]he trial court erred in not admitting [this] [e]xhibit
*** into evidence." On the authority of Ohligschlager v. Proctor Community Hospital,
55 Ill. 2d 411, 417-18, 303 N.E.2d 392, 396 (1973), Wojcik v. City of Chicago, 299 Ill.
App. 3d 964, 977-78, 702 N.E.2d 303, 313 (1998), and other cases, plaintiff argues that
evidence of professional standards is substantively admissible at trial. She notes that
under Illinois Pattern Jury Instructions, Civil, No. 105.01, the standard of care can be
established not only by "opinion testimony from qualified witnesses" but also by
"evidence of professional standards." Illinois Pattern Jury Instructions, Civil, No. 105.01
(2006) (IPI Civil (2006) No. 105.01).
The parties disagree on whether plaintiff's exhibit No. 24 contains any
evidence of professional standards. Dunnington testified the exhibit was not a peer-
reviewed publication and that SSO prepared it for insurance companies rather than for
physicians. Fines denied that the exhibit described the standard of care.
In plaintiff's view, plaintiff's exhibit No. 24 does indeed contain the
professional standards for recommending prophylactic mastectomies. The article
begins: "At the request of CHAMPUS, [i.e., the Civilian Health and Medical Program of
the Uniformed Services,] [SSO] developed a position statement on prophylactic
mastectomies to guide insurance programs in determining coverage and help patients
obtain reimbursement. The following position *** was approved by the SSO Standards
of Care Committee and forwarded to CHAMPUS through the American College of
Surgeons." Then, under the subheading "SSO Position on Prophylactic Mastectomy,"
- 43 -
the article lists the "indications" for bilateral prophylactic mastectomies in patients with
no diagnosis of cancer.
CHAMPUS is a subdivision of the Department of Defense, and it
administers the Dependent's Medical Care Act (10 U.S.C. §§1071 through 1106 (2000)),
a federally subsidized health care program for dependents of active-duty and retired
members of the United States armed forces. CHAMPUS provides eligible beneficiaries
"medically necessary services and supplies required in the diagnosis and treatment of
illness or injury." 32 C.F.R. §199.4(a)(1)(I) (2007). It excludes coverage for services and
supplies that are not "medically necessary." 32 C.F.R. §199.4(g)(15) (2007). In
determining which services and supplies are medically necessary, CHAMPUS consults
(among other sources) "[n]ational medical policy organization positions" and "[n]ational
professional medical associations" (Smith v. Office of Civilian Health & Medical
Program of the Uniformed Services, 97 F.3d 950, 960 n.13 (7th Cir. 1996))--thus
CHAMPUS's request to SSO for a position statement on prophylactic mastectomies.
Plaintiff infers that the position statement in plaintiff's exhibit No. 24 sets forth widely
accepted professional standards for determining when prophylactic mastectomies are
medically necessary, because the very reason for CHAMPUS's request was to ascertain,
for purposes of coverage, what those standards were.
Defendant argues that "[t]he trial court properly refused admission of
[p]laintiff's [e]xhibit [No.] 24 on the ground that it constitute[d] inadmissible hearsay.
In [so] ruling, the court noted that two medical witnesses had testified that it was not a
standard and was instead a guideline used for insurance purposes [citation to record]."
We do not see how the testimony of Dunnington and Fines negates the
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existence of professional standards in plaintiff's exhibit No. 24. Just because the
position statement was designed as a reference for insurance companies rather than for
physicians, it does not logically follow that the position statement lacks evidence of
professional standards. SSO surely understood that the position statement would be
useful to CHAMPUS only if it were a statement of professional standards in the sense of
what were the indications for prophylactic mastectomy. Fines testified that plaintiff's
exhibit No. 24 "doesn't set [the] standard of care." But the question is not whether the
exhibit sets the standard of care in the sense of specifying everything a physician should
do or consider before recommending bilateral prophylactic mastectomies; the question
is whether the exhibit contains evidence of professional standards which, in turn, would
be relevant to determining the standard of care. See IPI Civil (2006) No. 105.01. To
deny that plaintiff's exhibit No. 24 contains any evidence of professional standards
almost seems tantamount to suggesting that SSO misled CHAMPUS. The whole idea of
listing the indications for bilateral prophylactic mastectomies was to enable CHAMPUS
to ascertain whether bilateral prophylactic mastectomies were medically necessary (32
C.F.R. §199.4(g)(15) (2007)). The corollary would seem to be that absent the listed
indications, bilateral prophylactic mastectomies were not medically necessary (in which
case CHAMPUS would deny coverage).
In any event, the parties are arguing over whether the trial court erred in
excluding plaintiff's exhibit No. 24 from evidence, and it is unclear to us that the court
did, in fact, exclude it from evidence. To exclude it from evidence, the court would have
had to sustain an evidentiary objection to the exhibit. That never happened, as far as we
can see from the record; at least, plaintiff cites no page of the record in which the court
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ruled plaintiff's exhibit No. 24 to be inadmissible. Without objection by the defense,
plaintiff's attorney questioned Dunnington and Fines about the exhibit. She elicited
from them an admission that plaintiff did not meet three of the indications listed in the
exhibit, and she quoted the indications in her cross-examination: (1) plaintiff had no
"'[f]amily history of breast cancer in a first-degree relative (especially a mother or sister)
who [was] premenopausal and has had bilateral breast cancer'"; (2) she did not have
"'atypical hyperplasia'"; and (3) she did not have "'fibro[]nodular, dense breasts that
[were] mammographically difficult to follow[] (evaluate) and [she did not] present[]
with either of the above (or both) clinical presentations,'" that is, (1) or (2). Thus, the
content of plaintiff's exhibit No. 24 went into substantive evidence. "[W]hen hearsay
evidence is admitted without an objection, it is to be considered and given its natural
probative effect." Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d
501, 508, 475 N.E.2d 879, 883 (1985).
Plaintiff argues the trial court "belittled the importance of the standards by
instructing the jury that they could not be considered as substantive evidence." But at
the page of the record that plaintiff cites, the court never instructed the jury that
position statements in general could not be considered as substantive evidence; the
court merely instructed the jury that a single exhibit, plaintiff's exhibit No. 25 (not
plaintiff's exhibit No. 24), could not be considered as substantive evidence. Plaintiff's
exhibit No. 25 was a position statement that SSO issued in 2001. During the cross-
examination of Fines by plaintiff's attorney, defendants' attorney objected to plaintiff's
exhibit No. 25 on the ground that it "was published after the treatment *** in this case."
Plaintiff's attorney responded:
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"MS. de SAINT PHALLE: Your Honor, I think it's
relevant because [Fines is] saying that the standard of care
changed after 1993. I'm going to show him the 2001
standard that [says] the exact same thing as the 1993
statement, so--
THE COURT: For impeachment only[,] I'll allow it. It
is not substantive evidence, ladies and gentlemen."
This was not to say that every position statement that SSO ever issued was substantively
inadmissible in the trial. The particular position statement at issue here, plaintiff's
exhibit No. 25, was relevant only for impeachment not because it was a position
statement but because SSO published it after Dunnington treated plaintiff.
In the jury's presence, the trial court never sustained an objection to
plaintiff's exhibit No. 24 or otherwise signified to the jury that it was inadmissible.
Outside the jury's presence, the court merely declined to send the exhibit to the jury
room. The court told plaintiff's attorney she could nevertheless make arguments to the
jury regarding the exhibit. "The decision whether to send exhibits to the jury room is
within the trial court's sound discretion, and a reviewing court will not disturb that
decision absent an abuse of discretion that prejudices a party." VanWinkle v. Owens-
Corning Fiberglas Corp., 291 Ill. App. 3d 165, 176, 683 N.E.2d 985, 993 (1997). Even
under Federal Rule of Evidence 803(18), which the supreme court has not yet adopted
(Roach v. Springfield Clinic, 157 Ill. 2d 29, 46, 623 N.E.2d 246, 254 (1993)) and which is
more generous than Illinois law in allowing the use of learned publications as
substantive evidence, such materials are never sent to the jury room (Fed. R. Evid.
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803(18) (28 U.S.C. app. Fed R. Evid. 803(18) (2000)). Illinois law permits the
substantive admission of professional standards (Darling v. Charleston Community
Memorial Hospital, 33 Ill. 2d 326, 332, 211 N.E.2d 253, 257 (1965); IPI Civil (2006) No.
105.01), but unlike Federal Rule of Evidence 803(18), it does not permit the substantive
admission of medical treatises (Walski v. Tiesenga, 72 Ill. 2d 249, 258-59, 381 N.E.2d
279, 283 (1978); Fornoff v. Parke Davis & Co., 105 Ill. App. 3d 681, 690-91, 434 N.E.2d
793, 801 (1982)). Even under the more liberal federal rule, however, the learned
publications do not go to the jury during deliberations: "If admitted, the statements
[from learned publications] may be read into evidence but may not be received as
exhibits." Fed. R. Evid. 803(18).
The advisory committee's note to Federal Rule of Evidence 803(18)
observes that while scholarly writers generally favor the admissibility of learned
treatises, most courts oppose their admissibility as substantive evidence, although they
allow treatises to be used for impeachment in the cross-examination of experts. Fed. R.
Evid. 803(18), Notes of Advisory Committee on Proposed Rules. The argument in favor
of substantive admissibility is that "the hearsay objection must be regarded as
unimpressive when directed against treatises since a high standard of accuracy is
engendered by various factors: the treatise is written primarily and impartially for
professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the
writer at stake." Fed. R. Evid. 803(18), Notes of Advisory Committee on Proposed
Rules. Although, generally, treatises might be trustworthy, they often are written for
specialists and presuppose that the reader has a specialized education that laypersons
lack; consequently, it is "likel[y] that the treatise will be misunderstood and misapplied
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without expert assistance and supervision." Fed. R. Evid. 803(18), Notes of Advisory
Committee on Proposed Rules. In two ways, the federal rule lessens the danger of
misunderstanding and misapplication: (1) "limiting the use of treatises as substantive
evidence to situations in which an expert is on the stand and available to explain and
assist in the application of the treatise[,] if desired"; and (2) prohibiting the court from
"receiving the publication itself physically in evidence." Fed. R. Evid. 803(18), Notes of
Advisory Committee on Proposed Rules.
While allowing plaintiff's attorney to make arguments to the jury
regarding plaintiff's exhibit No. 24, the trial court could reasonably decline to receive the
exhibit itself physically into evidence and send it to the jury room. With its exotic
terminology, such as "atypical hyperplasia of lobular or ductal origin," the exhibit
obviously is not written for laypersons, and a jury is likely to speculate about what it
does not understand. The jury heard plaintiff's attorney cross-examine Dunnington and
Fines regarding the exhibit. The jury heard these two witnesses admit that plaintiff did
not meet the three indications therein. Thus, the content of the exhibit was already in
evidence. Plaintiff's attorney was free to quote the exhibit in her closing argument, if
she so desired. Withholding the exhibit from the jury room lessened the danger of
misunderstanding and misapplication. We find no abuse of discretion in that regard.
B. The Impeachment of Plaintiff
At trial, plaintiff testified she was "confused" when she wrote, on the
"History" form in Dunnington's office, that her mother had cancer in both breasts at age
26. Then, over objection, the trial court allowed defendants' attorney to question
plaintiff about the inconsistent testimony she had given in her discovery deposition:
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"Q. During your discovery deposition, you didn't tell
me that you were confused[] and that's the reason why you
wrote, 'Both breasts at 26,' did you?
A. No.
Q. You didn't tell me that, did you?
A. No, I didn't.
Q. Instead, you said, 'I didn't write that,' didn't you?
A. Yes."
Plaintiff argues that a witness's credibility may not be impeached with a
specific act of untruthfulness. See People v. Santos, 211 Ill. 2d 395, 404, 813 N.E.2d 159,
163 (2004). She further argues that the "impeachment" of her was only a pretense of
impeachment: impeachment is supposed to be a means of canceling out damaging
testimony, whereas, here, there was no damaging testimony to cancel out: plaintiff
testified at trial that she was the one who had written, "Mother [b]oth [b]reast[s] at 26."
See People v. Cruz, 162 Ill. 2d 314, 363, 643 N.E.2d 636, 659 (1994).
These arguments overlook plaintiff's status as a party. Impeaching or not,
a party's prior inconsistent statement is an admission. People v. Adams, 265 Ill. App. 3d
181, 188-89, 638 N.E.2d 254, 259 (1994). "Discovery depositions *** may be used *** as
an admission made by a party *** in the same manner and to the same extent as any
other admission made by that person ***." 210 Ill. 2d R. 212 (a)(2). "Any oral or written
out-of-court statement by a party to the action *** which tends to establish or disprove
any material fact in a case is an admission and is competent evidence against that party
in the action." Ficken v. Alton & Southern RY. Co., 291 Ill. App. 3d 635, 647, 685 N.E.2d
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1, 10 (1996).
An admission must be relevant. Gillson v. Gulf, Mobile & Ohio R.R. Co.,
42 Ill. 2d 193, 197, 246 N.E.2d 269, 272 (1969). Evidence is relevant if it has "any
tendency to make the existence of any fact that is of consequence to the determination of
an action *** more or less probable than it would be without the evidence." People v.
Morgan, 197 Ill. 2d 404, 455-56, 758 N.E.2d 813, 843 (2001). Under long-standing case
law, a party's deliberate falsehood regarding a material fact of the litigation is considered
relevant to the "righteousness" of the party's cause. Lubbers v. Norfolk & Western Ry.
Co. , 118 Ill. App. 3d 705, 712, 454 N.E.2d 1186, 1191 (1983), citing People v. Spaulding,
309 Ill. 292, 305-06, 141 N.E. 196, 202 (1923). " 'By resorting to wrongful devices[,] [a
party] is said to give ground for believing that he thinks his case is weak and not to be
won by fair means. Accordingly, a party's false statement about the matter in litigation,
whether before suit or on the stand, *** [is a] type of admission by conduct.' " (Emphasis
omitted.) Lubbers, 118 Ill. App. 3d at 711, 454 N.E.2d at 1191, quoting D. McCormick,
Evidence §273, at 660 (2d ed. 1972). If the jury believed Dunnington and Fines that,
under the circumstances, it was within the standard of care to rely on information that
plaintiff had written on the medical-history form, the fact that plaintiff wrote the
information is material. In her deposition, she falsely denied that material fact. We find
no abuse of discretion in the overruling of plaintiff's objection.
C. Refusal To Allow the Use of Plaintiff's Exhibit No. 45 for Impeachment
Plaintiff's exhibit No. 45 was an article entitled "Breast Cancer
Management," published in 1999 in a peer-reviewed medical journal, Surgical Clinics of
North America. The author was Lynn Hartman. Plaintiff's attorney asked Dunnington:
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"[Hartman] is authoritative in the field of breast cancer, is she not?" He answered:
"Yes, for a single landmark article." The trial court refused to allow plaintiff's attorney
to cross-examine Dunnington on plaintiff's exhibit No. 45 because plaintiff failed to
prove that the specific article, as opposed to its author, was authoritative. Plaintiff
argues the court thereby abused its discretion.
The supreme court has held: "In our opinion[,] expert testimony will be
*** more effective *** in the attainment of justice if cross-examination is permitted as to
the views of recognized authorities, expressed in treatises or periodicals written for
professional colleagues. (Cf. Model Code of Evidence, Rule 529[, at 294 (1942)].) The
author's competence is established if the judge takes judicial notice of it, or if it is
established by a witness expert in the subject." Darling, 33 Ill. 2d at 336, 211 N.E.2d at
259. The cited rule of the Model Code of Evidence provides as follows:
"Rule 529. Learned Treatise.
A published treatise, periodical[,] or pamphlet on a
subject of history, science[,] or art is admissible as tending to
prove the truth of a matter stated therein if the judge takes
judicial notice, or a witness expert in the subject testifies,
that the writer of the statement in the treatise, periodical[,]
or pamphlet is recognized in his profession or calling as an
expert in the subject." Model Code of Evidence, Rule 529, at
294 (1942).
As we said, the supreme court has not gone so far as to hold that treatises
are substantively admissible. But, under Darling and Rule 529, treatises and other
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learned publications are admissible if an expert testified to the author's competence in
the profession.
The First District takes the same view. It holds that a learned text is
admissible for impeachment on cross-examination in any of the following three
circumstances: (1) the trial court takes judicial notice of the author's competence, (2)
the witness concedes the author's competence, or (3) the cross-examiner proves the
author's competence by a witness with expertise in the subject matter. Bowman v.
University of Chicago Hospitals, 366 Ill. App. 3d 577, 587, 852 N.E.2d 383, 392 (2006).
In the present case, Dunnington--himself an expert--gave an affirmative
answer to the question of whether Hartman, the author of plaintiff's exhibit No. 45, was
"authoritative in the field of breast cancer." Ergo, the trial court erred in refusing to
allow plaintiff's attorney to use the exhibit in her cross-examination of him. When we
consider, however, all the other learned publications that plaintiff used to impeach
Dunnington, we find it unlikely that allowing her to use this additional source would
have made a difference in the verdict. Therefore, we find the error to be harmless.
D. Lack of an Offer of Proof Regarding Plaintiff's Exhibit No. 35
Plaintiff's attorney handed Fines plaintiff's exhibit No. 35, which he
identified as a review article entitled "Prophylactic Surgery in Women with Hereditary
Predisposition to Breast and Ovarian Cancer." This exhibit is in the record. It was
published in the May 2000 edition of the Journal of Clinical Oncology. The authors are
Andrea Eisen, Timothy R. Rebbeck, William C. Wood, and Weber. According to a note
on the first page of the article, the authors submitted the article for publication on
August 10, 1999. Plaintiff's attorney asked Fines:
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"Q. And, Doctor, let me ask you if you agree with this
Statement at the bottom of [p]age 19--
MR. HARLESS: Let me object to the timing of this
publication[, which] is after the date of the assessment in this
case.
MS. de SAINT PHALLE: Your Honor--
THE COURT: What are the dates?
MS. de SAINT PHALLE: It was written--it was
submitted August 10th of 1999 and accepted January 21st[]
of 2000.
THE COURT: And when was it published?
MS. de SAINT PHALLE: It was published in May of
2000.
THE COURT: I'll sustain. I'll sustain the objection."
Plaintiff's attorney then moved on to a different subject in her cross-examination of
Fines.
On appeal, plaintiff argues the trial court abused its discretion in
sustaining the objection. She argues that the article "discusse[s] the management
options then in use at the University of Pennsylvania and Emory [University School of
Medicine]" and the article "would have been significant in impeaching Dr. Fines because
Emory is the academic referral center for the area where he practices." She further
argues the article "[is] significant because the article's co-authorship between plaintiff's
expert and the surgeon chairman of the breast center rebutted Dr. Dunnington's
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contention that Dr. Weber's expertise was limited to genetics." Citing Granberry v.
Carbondale Clinic, S.C., 285 Ill. App. 3d 54, 65, 672 N.E.2d 1296, 1304 (1996), and
Bergman v. Kelsey, 375 Ill. App. 3d 612, 630, 873 N.E.2d 486, 509 (2007), she argues
that postevent texts can be used in cross-examination for purposes other than to
establish the standard of care.
The problem is, plaintiff did not inform the trial court of those purposes in
an offer of proof. "To be adequate, an offer of proof must apprise the trial court of what
the offered evidence is or what the expected testimony will be, by whom it will be
presented[,] and its purpose." Chicago Park District v. Richardson, 220 Ill. App. 3d 696,
701, 581 N.E.2d 97, 100 (1991). Unless the purpose of the proffered evidence is clear
from the question itself (Moss v. Miller, 254 Ill. App. 3d 174, 183, 625 N.E.2d 1044, 1050
(1993)), counsel must explain the purpose to the trial court as part of the offer of proof
(People v. Hoffee, 354 Ill. 123, 140, 188 N.E. 186, 192 (1933)). Plaintiff's attorney did
not inform the trial court how plaintiff's exhibit No. 35 would impeach Fines and
Dunnington or what her purposes were in offering the exhibit. Those purposes were not
apparent from the question itself. Absent such an offer of proof, the issue of whether the
court erred in excluding the exhibit is forfeited. See Chicago Park District, 220 Ill. App.
3d at 702, 581 N.E.2d at 100.
E. Refusal To Allow Plaintiff To Show the Jury the Various
Learned Publications She Had Used To Impeach Defense Witnesses
Plaintiff argues the trial court erred in refusing to allow her to show to the
jury the scholarly materials she used to impeach the defense witnesses, i.e., plaintiff's
exhibit No. 23, a book chapter written by Dunnington; plaintiff's exhibit No. 24, the SSO
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standards for bilateral prophylactic mastectomies; plaintiff's exhibit No. 26, a book
chapter stating that obtaining family pathology records are an integral part of compiling
the family history; plaintiff's exhibit No. 30, an algorithm for evaluation of women at
increased risk for breast cancer; plaintiff's exhibit No. 37, indications for prophylactic
mastectomies; and plaintiff's exhibit Nos. 38, 42, and 53, articles by Weber.
Plaintiff cites People v. Anderson, 113 Ill. 2d 1, 495 N.E.2d 485 (1986), for
the proposition that "[t]he [s]upreme [c]ourt permits the publishing to the jury of
materials used on cross-examination." We do not see where, in Anderson, the supreme
court said so, and plaintiff does not provide us a pinpoint citation. (Throughout her
brief, plaintiff frequently cites cases without citing the pertinent page number within
those cases--a violation of Illinois Supreme Court Rule 6 (145 Ill. 2d R. 6). See Putman
v. Village of Bensenville, 337 Ill. App. 3d 197, 201, 786 N.E.2d 203, 205 (2003) (failure
to obey Rule 6's requirement of citing the page of the case on which the pertinent matter
appears can result in forfeiture of the argument).) In Anderson, 113 Ill. 2d at 9, 495
N.E.2d at 488, the supreme court held that "an expert should be allowed to reveal the
contents of materials upon which he reasonably relies in order to explain the basis of his
opinion"; but we do not see where that case says anything about publishing those
materials to the jury in the sense of physically distributing a copy of them to the jury.
Plaintiff cites no authority holding that a trial court must allow copies of impeachment
materials to be distributed to the jury, either in the courtroom or the deliberation room.
Her failure to cite relevant authority results in a forfeiture of this argument. See Vine
Street Clinic v. HealthLink, Inc., 222 Ill. 2d 276, 301, 856 N.E.2d 422, 438 (2006).
F. Partial Summary Judgment
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Defendants sought a summary determination in their favor on paragraphs
23(c) and (d) of counts I and II of the second amended complaint. The trial court
granted their motion on March 8, 2007.
On March 13, 2007, plaintiff filed an "Amendment to the [Second]
Amended Complaint," in which she deleted paragraphs 23(c) and (d). Section 2-1005(d)
of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005(d) (West 2006)) did not
require her to do this. Rather, the determined issues were to be set down in an order,
and the trial was to be conducted accordingly. See 735 ILCS 5/2-1005(d) (West 2006).
"[T]he issue of the propriety of the trial court's grant of summary judgment is not
properly before this court, for when an amendment is filed that is complete in itself and
that does not refer to or adopt by reference the prior pleadings, the earlier pleadings are
effectively withdrawn and cease to be part of the record for most purposes." Gilley v.
Kiddel, 372 Ill. App. 3d 271, 274, 865 N.E.2d 262, 265 (2007). By filing the amendment
to the second amended complaint--an amendment that deleted the subparagraphs on
which the trial court had granted summary judgment--plaintiff forfeited any objection to
the summary judgment. See Gilley, 372 Ill. App. 3d at 274, 865 N.E.2d at 266.
G. Defendants' Motion in Limine
On February 22, 2007, defendants filed a motion in limine, in which they
sought to bar plaintiff from alleging to the jury that Dunnington did the following:
"4. Dr. Dunnington did not refer Sandra Downey for
genetic counseling because Medicaid/[p]ublic [a]id would
not cover the cost of genetic testing.
5. Dr. Dunnington did not refer Sandra Downey for
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genetic counseling and testing because she was unable to pay
for those services."
In a hearing on February 23, 2007, the trial court granted those paragraphs of the
motion in limine. Plaintiff contends, on appeal, that the court thereby erred.
On March 8, 2007, after granting the motion in limine, the trial court
granted defendants' motion for partial summary judgment, in which they pleaded as
follows:
"1. Judgment should be entered in favor of
[d]efendants because there is no genuine issue of material
fact that Dr. Dunnington did not allow considerations of
[p]laintiff's ability to pay for genetic testing to affect the
manner in which he presented treatment options to the
plaintiff."
As we have explained, given plaintiff's amendment of her second amended
complaint, this summary judgment is not properly before us. Under section 2-1005(d)
of the Code (735 ILCS 5/2-1005(d) (West 2006)), the trial was to proceed in accordance
with the summary judgment. If, as the summary judgment determined, Dunnington
"did not allow considerations of [p]laintiff's ability to pay for genetic testing to affect the
manner in which he presented treatment options to the [p]laintiff," it would be
impossible, consistently with that determination, to make the claims that paragraphs 4
and 5 of the motion in limine sought to bar. Therefore, we uphold the ruling on the
motion in limine. The testimony the trial court struck from Weber's evidence deposition
was inadmissible because of the summary judgment and the ruling on the motion in
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limine.
H. Asking Weber Whether Plaintiff Would Have Undergone Genetic Testing
In Weber's evidence deposition, defendants' attorney asked Weber:
"Q. Doctor, isn't it true that even if Sandra Downey
had undergone genetic counseling, you can't say that she
would have had genetic testing, can you?
A. No, but I can say that if I think she had a bilateral
prophylactic mastectomy[] in the absence of genetic testing,
that that would have been a mistake.
MR. HARLESS: I move to strike her answer as
nonresponsive.
Q. Isn't it true, Dr. Weber, that even if Sandra Downey
had undergone genetic counseling, you can't say that she
would have had genetic testing, can you?
A. No."
The trial court granted defendants' motion to strike the first question and
answer, quoted above, on the ground that the answer was unresponsive to the question.
The court denied plaintiff's motion to strike the second question and answer on the
ground that it was impermissible to ask an expert to speculate as to what decision
plaintiff would have made about undergoing genetic testing. On appeal, plaintiff argues
that the court thereby erred, for Weber's opinion in that respect was speculative and the
jury, rather than an expert, should assess the credibility of the plaintiff's testimony in
informed-consent cases. See Mansmith v. Hameeduddin, 369 Ill. App. 3d 417, 435, 860
- 59 -
N.E.2d 395, 411 (2006); Coryell v. Smith, 274 Ill. App. 3d 543, 550, 653 N.E.2d 1317,
1321 (1995). We agree, but according to plaintiff's petition for rehearing, the real issue
in this case was whether Dunnington should have even offered prophylactic
mastectomies to plaintiff, given her true medical history. The petition argues: "Since
mastectomies were not medically indicated, [plaintiff's] predilections and choices were
irrelevant. Thus, the outcome of this case turned on whether Dunnington had an
obligation to verify the medical history before undertaking an invasive and totally
elective procedure." From this argument, it seems to follow that Weber's opinion about
plaintiff's "predilections and choices" is harmless.
I. Allowing the Defense To Elicit Testimony That Dunnington's Father was a Clergyman
Defendants' attorney asked Dunnington:
"Q. Dr. Dunnington, I want you to go back a ways. I
want to talk to you about where you grew up, where you were
born[.] What does your family consist of when you were
growing up?
MS. de SAINT PHALLE: I'm going to object to the
relevance of this.
THE COURT: Overruled.
THE WITNESS: I grew up in a small town in Indiana,
New Castle, Indiana, and my father was a minister. My
mother was a housewife, stay-at-home mom, and there were
four children in the family."
Plaintiff argues: "Introducing evidence that Dr. Dunnington's father was a
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minister had no relationship to any issue in this case. [Citation to record.] It was plainly
an improper attempt to bolster his credibility[] and to curry favor with the jury." She
cites Pearson v. Ford Motor Co., 32 Ill. App. 3d 188, 192-93, 336 N.E.2d 528, 532
(1975), for the proposition that "[i]ntroducing evidence of a party's domestic
circumstances is highly prejudicial" and McCarthy v. Spring Valley Coal Co., 232 Ill. 473,
479-80, 83 N.E. 957, 960 (1908), for the proposition that doing so is reversible error.
The rule is stark and absolute: "Irrelevant evidence is not admissible."
Maffett v. Bliss, 329 Ill. App. 3d 562, 574, 771 N.E.2d 445, 455 (2002). As we have
explained, evidence is relevant if it has any tendency to make the existence of a fact that
is of consequence to the determination of the action either more or less probable that it
would be without the evidence. Morgan, 197 Ill. 2d at 455-56, 758 N.E.2d at 843.
"[W]hat Dunnington's family consist[ed] of when [he was] growing up" had no such
tendency. Ergo, it was irrelevant and inadmissible that Dunnington's father was a
clergyman, and the trial court abused its discretion by overruling plaintiff's objection.
Such evidence is wholly irrelevant to the issues in this trial, and the use of such evidence
constitutes an aberrant practice that should not be tolerated. Not only does the evidence
lack any logical relationship to the action on trial, but it has the further nefarious
purpose of requiring opposing counsel to object, calling undue attention to both the
significance of the evidence and the efforts of the objecting party.
This error, however, was not as prejudicial as in Pearson and McCarthy. In
those cases, a laborer was seeking compensation for personal injuries, and the laborer's
attorney informed the jury that the laborer had a wife and five children. Pearson, 32 Ill.
app. 3d at 192, 336 N.E.2d at 531; McCarthy, 232 Ill. at 479, 83 N.E. at 960. Those are
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different domestic circumstances than in the present case. That Dunnington's father
was a clergyman does not provide as strong an emotional incentive as the laborer's
impoverished wife and five children. We find error, but not reversible error.
In her petition for rehearing, plaintiff argues that the erroneously admitted
evidence had the effect of contrasting her "former status as a 15[-]year[-]old pregnant
high[-]school dropout [with] Dunnington's status as the son of a minister with a stay[-
]at[-]home mom." She argues that "Dunnington's religious upbringing could have had
an impact on the jury in evaluating whether Dunnington was telling the truth in his
claim that the standard of care did not require verification of medical history." She cites
Freeding-Skokie Roll-Off Service, Inc. v. Hamilton, 108 Ill. 2d 217, 223, 483 N.E.2d 524,
527 (1985), for the following proposition: "'Where error is shown to exist, it will compel
reversal, unless the record affirmatively shows that the error was not prejudicial.' (Duffy
v. Cortesi (1954), 2 Ill. 2d 511, 517[, 119 N.E.2d 241, 245].)" In Hamilton, 108 Ill. 2d at
223, 483 N.E.2d at 527, however, the plaintiff's counsel "emphasized" the erroneously
admitted testimony in closing arguments, and for that reason, the supreme court held
the record did not affirmatively show the error was not prejudicial. It does not appear
that defendants' counsel emphasized the religious vocation of Dunnington's father. In
another case that plaintiff cites, Koonce v. Pacilio, 307 Ill. App. 3d 449, 456, 718 N.E.2d
628, 634 (1999), defense counsel implied his clients had no insurance and, therefore,
would be personally responsible for the satisfaction of any judgment against them, and
he also vouched for the honesty and character of his clients and inaccurately
summarized the evidence. A passing reference to Dunnington's childhood is not even
remotely comparable in its prejudicial impact. In the other case that plaintiff cites,
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Lorenz v. Siano, 248 Ill. App. 3d 946, 953-54, 618 N.E.2d 666, 671 (1993), defense
counsel asked his client, in a personal-injury case, about the ownership of his home and
the amount of his annual income. The appellate court said: "It has long been the rule in
Illinois that appeals to the passion or sympathy of the jury are improper and are
sufficient cause for reversing a judgment unless it can be said that the prejudice suffered
was so minimal that it did not impact upon the outcome of trial." Lorenz, 248 Ill. App.
3d at 953, 618 N.E.2d at 671. Again, we do not find the religious vocation of
Dunnington's father to be comparable, in its emotional impact, to a defendant's financial
hardship in a personal-injury case.
To reverse the verdict, we would have to attribute to the jury a
simplemindedness and even a viciousness that are implausible. We would have to infer
that the jury considered Dunnington to be a paragon of virtue because, decades ago, he
was raised by a father who was a minister and a mother who was a housewife. We also
would have to infer that, in its verdict, the jury punished plaintiff because, compared to
Dunnington, she had an unfortunate childhood. We choose to believe better of the jury.
We conclude that the prejudice was not great enough to have affected the verdict. See
Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 364, 770
N.E.2d 177, 201 (2002).
Plaintiff argues that "rigid application of the harmless[-]error doctrine"
provides little incentive for counsel to refrain from errors in the future. It is unclear
what plaintiff means by applying the doctrine "rigidly." There is no question of rigidity
or flexibility. Either the error is harmless or not. Either the error changed the result, or
it did not. Belleville Toyota, 199 Ill. 2d at 364, 770 N.E.2d at 201. Either the error
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"substantially prejudiced a party and affected the outcome below," or it did not.
Bradfield v. Illinois Central Gulf R.R. Co., 137 Ill. App. 3d 19, 23, 484 N.E.2d 365, 368
(1985). And the burden is on the party seeking reversal to establish such prejudice.
Cairns v. Hansen, 170 Ill. App. 3d 505, 511, 524 N.E.2d 939, 944 (1988). The logic of
incentives is undeniable, but the alternative to the plain-error doctrine would be
requiring perfect trials. That alternative is impracticable.
J. Denial of Plaintiff's Motion for a New Trial
Plaintiff argues the trial court abused its discretion in denying her motion
for a new trial. We will overturn the ruling only if it was an abuse of discretion; and it
was an abuse of discretion only if the jury's verdict was against the manifest weight of
the evidence. See York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d 147,
178-79, 854 N.E.2d 635, 652-52 (2006). "A verdict is contrary to the manifest weight of
the evidence when the opposite conclusion is clearly evident or when the jury's findings
prove to be unreasonable, arbitrary[,] and not based upon any other evidence." York,
222 Ill. 2d at 179, 854 N.E.2d at 652.
The jury's verdict is not against the manifest weight of the evidence.
Conflicts in the evidence and disagreements among experts do not make a verdict
against the manifest weight of the evidence. First National Bank of LaGrange v. Lowrey,
375 Ill. App. 3d 181, 213, 872 N.E.2d 447, 478 (2007), appeal denied, 226 Ill. 2d 583,
879 N.E.2d 930 (2007); Soberalski v. Chicago Rock Island & Pacific R.R. Co., 29 Ill.
App. 3d 1019, 1024, 331 N.E.2d 645, 650 (1975). Weber disagreed with Dunnington and
Fines on the standard of care. Plaintiff also impeached Dunnington and Fines with
scholarly publications tending to show that verification of the patient's family history
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was required and that plaintiff's risk of developing breast cancer, given her actual family
history, was less than what Dunnington and Fines claimed. The jury had a choice: it
could believe Weber, or it could believe Dunnington and Fines. When determining the
standard of care applicable to a surgeon, the jury could have found the testimony of two
experienced surgeons to be more persuasive than the testimony of an oncologist. It was
for the jury to decide whether the articles from the medical journals made Dunnington
and Fines unworthy of belief. The jury could have believed Fines when he testified that
surgeons generally do not go on a quest for medical records to corroborate what patients
tell them about their family history. The jury could have believed Dunnington when he
testified that Betty Hart's premenopausal breast cancer was sufficient cause to offer
bilateral prophylactic mastectomies to plaintiff, regardless of whether Betty's breast
cancer was in both breasts and regardless of whether she had contracted ovarian cancer.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment.
Affirmed.
KNECHT and STEIGMANN, JJ., concur.
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