Hemminger v. LeMay , 11 N.E.3d 825 ( 2014 )

2014 IL App (3d) 120392
Opinion filed January 21, 2014
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
DANIEL R. HEMMINGER, Individually ) Appeal from the Circuit Court
and as Special Administrator of the Estate ) of the 14th Judicial Circuit,
of TINA M. HEMMINGER, Deceased, ) Whiteside County, Illinois
)
Plaintiff-Appellant, )
)
v. ) Appeal No. 3-12-0392
) Circuit No. 05-L-39
)
JEFFREY LEMAY, M.D., STERLING ) Honorable
ROCK FALLS CLINIC, LTD., an ) Stanley B. Steines,
Illinois Corporation, ) Judge, Presiding.
)
Defendant-Appellee. )
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justices O'Brien and Schmidt concurred in the judgment and opinion.
______________________________________________________________________________
OPINION
¶1 In this medical malpractice action, the plaintiff, Daniel R. Hemminger (Hemminger),
sued defendants Jeffrey LeMay, M.D. and Sterling Rock Falls Clinic, Ltd. seeking damages for
the death of his wife, Tina. Hemminger alleged that the defendants' negligent failure to diagnose
Tina's cervical cancer in a timely fashion proximately caused her death by lessening her chance
of survival. The trial court granted the defendants' motion for a directed verdict, finding that
Hemminger failed to present evidence sufficient to establish that Dr. LeMay's negligence
proximately caused Tina's death under a lost chance of survival theory. This appeal followed.
¶2 FACTS
¶3 Tina saw Dr. LeMay, an obstetrician/gynecologist, on June 23, 2000, complaining of
abdominal pain on her right side and spotting in the recent past. Dr. LeMay performed a pelvic
examination which showed that Tina's cervix was abnormally large and firm. However, Dr.
LeMay did not biopsy Tina's cervix or order a microscopic examination of her cervix at that time.
Approximately six months later, Tina was diagnosed with cervical cancer. By that time, her
cancer was at Stage 3B, which has a 5-year survival rate of 32 percent. Tina died of metastatic
cervical cancer on April 7, 2002.
¶4 Hemminger sued Dr. LeMay for medical malpractice alleging that Dr. LeMay negligently
failed to order tests (such as a cervical biopsy or colposcopy1) that would have detected Tina's
cervical cancer in June 2000. He claimed that, had Dr. LeMay diagnosed Tina's cancer in June
2000 rather than in December 2000, Tina would have had a significantly better chance of
surviving her cancer.
¶5 Dr. Margaret Pfister, a board certified obstetrician and gynecologist, was Hemminger's
sole expert witness at trial. As a general gynecologist, Dr. Pfister does not treat cervical cancer.
She refers patients with cervical cancer to a gynecological oncologist. However, Dr. Pfister
testified that she counsels such patients on their likely prognoses. Dr. Pfister stated that she had
undergone three months' training dedicated to gynecologic oncology and that she regularly read
textbooks and journal articles on cervical cancer. She also testified that she regularly read the
1
A colposcopy is a microscopic examination of the cervix.
2
journal published by the American Congress of Obstetricians and Gynecologists (ACOG),
including ACOG's publications on the staging and prognosis of cervical cancer.
¶6 Dr. Pfister testified that she was familiar with the staging system for cervical cancer
devised by the Federation of International Gynecologic Oncologists (FIGO), and that she used
the FIGO staging system when advising her patients. She stated that the FIGO staging system
identifies four broad categories of cervical cancer. Stage 1 is cancer limited to the cervix. In
Stage 2A, the cancerous tumor has spread from the cervix vertically down the vagina, but has not
reached the lower third of the vagina. A Stage 2B tumor spreads outward (laterally) from the
cervix. A Stage 3A tumor is one that has spread vertically down from the cervix all the way to
the lower portion of the vagina. A Stage 3B tumor has spread laterally from the cervix into the
pelvic sidewall. Stage 4A is cancer that reaches the bladder and rectal mucosa. Stage 4B occurs
when the cancer spreads outside of the pelvis. By the time Tina's cancer was discovered in
December 2000, it was at Stage 3B (i.e., it had spread laterally from the cervix into the pelvic
sidewall).
¶7 Dr. Pfister testified to a reasonable degree of medical certainty that, when Dr. LeMay
examined Tina on June 23, 2000, Tina's cervical cancer was either at Stage 1 or at Stage 2B. Dr.
Pfister concluded that Tina could not have had a Stage 3 cervical cancer at that time because a
Stage 3 tumor extends to the pelvic wall, involves the lower third of the vagina, or causes kidney
injury (or some combination of these factors), and none of these things were described by Dr.
LeMay in June 2000. Further, Dr. Pfister opined that Tina did not have a Stage 2A cancer at that
time because a tumor extending down into the vagina from the cervix should be "pretty obvious"
to an experienced gynecologist like Dr. LeMay, and Dr. LeMay did not describe any such tumor
3
when he examined Tina on June 23, 2000.2 However, Dr. Pfister conceded that she could not
rule out the possibility that there was some lateral spread of the cancer by June 2000. Thus, she
concluded that the cancer could have reached Stage 2B at that time.
¶8 Based on survival data published by the American Cancer Society for women diagnosed
with cervical cancer between 2000 and 2002 (which provide survival rates for each stage of the
FIGO system), Dr. Pfister testified that: (1) the 5-year survival rate for women with Stage 1
cervical cancer is 80-90 percent; (2) the 5-year survival rate for women with Stage 2B cervical
cancer is 58 percent; and (3) when Tina was diagnosed with Stage 3B cervical cancer in
December 2000, her 5-year survival rate was 32 percent. Accordingly, based on the FIGO
staging system, the American Cancer Society survival statistics, and her education, training and,
experience, Dr. Pfister opined that Dr. LeMay's negligent failure to diagnose Tina's cervical
cancer on June 23, 2000, caused Tina's chances for survival to decrease from between 58-63
percent (assuming the cancer was at Stage 2 at that time) to 32 percent. She also testified that the
earlier one is able to make the diagnosis of cervical cancer, the sooner the patient is able to
undergo treatment, and thus the better the outcome will be for the patient.
¶9 The American Cancer Society's survival rate table for cervical cancer (the table upon
which Dr. Pfister relied in rendering her causation opinion) includes the following disclaimer:
"Survival rates are often based on previous outcomes of large
numbers of people who had the disease, but they cannot predict
2
Dr. Pfister also noted that, when Tina was seen by her family physician, Dr. Raime, in
September 2000, Dr. Raime performed a pelvic examination and did not report seeing any tumor
extending into the vagina.
4
what will happen in any particular person's case. Many other
factors may affect a person's outlook, such as their general health
and how well the cancer responds to treatment. Your doctor can
tell you how the numbers below may apply to you, as he or she is
familiar with the aspects of your particular situation."
During cross-examination, Dr. Pfister acknowledged that the table provided "general information
rather than specific information" and that it "isn't supposed to tell any one person what their
chance of survival is."
¶ 10 Dr. Pfister agreed that there were many factors that can affect a specific patient's chances
of surviving cervical cancer, including: (1) the patient's general health at the time of diagnosis;
(2) the histological characteristic of the cancer (i.e., whether it is squamous cell cancer or
adenocarcinoma); (3) whether the patient's cancer is well-differentiated, moderately
differentiated, or poorly differentiated; (4) whether the cancerous tumor is "exophytic" (i.e.,
growing outward from the cervix) or "endophytic" (i.e., growing inward within the cervix); and
(5) whether the patient's cancer is responsive to chemotherapy and radiation.3 Dr. Pfister did not
consider any of these factors in determining Tina's chance for survival. She testified that the
American Cancer Society table does not break down survival rates based upon these factors.
Moreover, Dr. Pfister stated that she was not a gynecological oncologist and that she did not have
3
Dr. Pfister was asked about the effect of other factors, such as whether the cancer was
"keratinizing" or "non-keratinizing," and, if non-keratinizing, whether it was "small cell" or
"large cell" cancer. The doctor responded that it was not possible for anyone to know whether
these factors affect any individual patient's survival rate.
5
the expertise to apply these additional variables to the survival rate statistics in calculating what
Tina's survival rate was in June, September, or December 2000. Dr. Pfister testified that Tina's
cervical cancer was a moderately differentiated, squamous cell carcinoma, and she acknowledged
that a gynecologic oncologist might be able to offer an opinion as to a specific individual's
chance of survival based upon a consideration of both the general survival rates and the
oncologist's "experience with moderately differentiated cancer or squamous carcinoma."
However, Dr. Pfister conceded that she lacked the expertise to offer such an opinion.
¶ 11 Dr. Pfister testified that the only treatments available for cervical cancer are
chemotherapy, radiation, and, in some cases, surgery. After her cancer was diagnosed in
December 2000, Tina received only chemotherapy and radiation. Dr. Pfister acknowledged that
Tina responded poorly to treatment at that time. She testified that she "wouldn't know" how Tina
would have responded to treatment if she had been diagnosed and treated in June 2000 rather
than in December 2000. Dr. Pfister did not say what the specific course of treatment would have
been if Tina had been diagnosed in June 2000 or how such treatment might have differed from
the treatment she received in December 2000.
¶ 12 At the close of Hemminger's case, the defendants moved for a directed verdict. The
defendants argued that Hemminger had failed to meet his burden of proving proximate causation
by establishing that the defendants' negligence lessened Tina's chance of survival. The trial court
agreed. The trial court noted that the relevant case law established that proximate causation may
not be speculative, i.e., a plaintiff may not establish proximate causation "based on mere
possibilities" or generalities. The trial court interpreted this rule as requiring the plaintiff to do
more than merely state the general proposition that "the earlier diagnosis [occurs] the better your
6
chances are." The trial court ruled that the plaintiff must be able to make a "connection between
the general rule" and "the specific instance we have in this matter." The court found that Dr.
Pfister failed to make such a connection because she offered only: (1) generalized evidence about
the staging of cervical cancer in group populations based upon the American Cancer Society's
survival rate table; and (2) a general opinion that an earlier diagnosis leads to better results. As
the trial court put it:
"Dr. Pfister *** was not able to connect those tables, those ***
general circumstances up to *** the circumstances for [Tina]. She
wasn't able to make that causal connection, *** other than being
speculative, mere possible or contingent. She couldn't speak to
treatment or what would happen if this treatment were provided or
even what kind of treatment should be provided. She could just
talk about the staging and the survival rates and again, all speaking
generally, not making that specific connection that needs to be
made in a medical malpractice case."
¶ 13 Accordingly, the trial court granted the defendants' motion for a directed verdict. The
trial court based its decision primarily on its review of the cases provided by the defendants. The
court noted that, before reading the case law, it would have thought that the evidence provided by
Dr. Pfister "would have been enough to carry the day." However, the court observed that the
case law established that "that isn't the case." The court stated that this was "probably one of the
more difficult decisions that this Court has made."
7
¶ 14 ANALYSIS
¶ 15 One of the elements of a medical malpractice claim is an injury proximately caused by
the physician's lack of skill or care. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004).
To establish proximate causation, a plaintiff must prove that the defendant's negligence "more
probably than not" caused the plaintiff's injury. Holton v. Memorial Hospital, 176 Ill. 2d 95, 107
(1997).
¶ 16 In this case, Hemminger proceeded under the "lost chance" theory of recovery. This
theory "refers to the injury sustained by a plaintiff whose medical providers are alleged to have
negligently deprived the plaintiff of a chance to survive or recover from a health problem, or
where the malpractice has lessened the effectiveness of treatment or increased the risk of an
unfavorable outcome to the plaintiff." Id. at 111. In Holton, our supreme court stated, "[t]o the
extent a plaintiff's chance of recovery or survival is lessened by the malpractice, he or she should
be able to present evidence to a jury that the defendant's malpractice, to a reasonable degree of
medical certainty, proximately caused the increased risk of harm or lost chance of recovery." Id.
at 119, 223. To make this showing, a plaintiff is not required to prove that she would have had a
greater than 50% chance of survival or recovery absent the alleged malpractice. Id. Nor is the
plaintiff required to prove that "a better result would have been achieved absent the alleged
negligence of the doctor." Id. at 106 (quoting Borowski v. Von Solbrig, 60 Ill. 2d 418, 424
(1975)).
¶ 17 Hemminger argues that the trial court erred in granting the defendants' motion for a
directed verdict on the issue of proximate causation. "Issues involving proximate cause are fact
8
specific and therefore uniquely for the jury's determination." Holton, 176 Ill. 2d at 107.4 A trial
court may grant a directed verdict only in those limited cases where "all of the evidence, when
viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that
no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria and Eastern R.R.
Co., 37 Ill. 2d 494, 510 (1967); see also Krywin v. Chicago Transit Authority, 238 Ill. 2d 215,
225 (2010). A trial court should grant a directed verdict for the defense only where the plaintiff
has failed to establish a prima facie case. See Sullivan, 209 Ill. 2d at 123. A plaintiff establishes
a prima facie case by "presenting some evidence on every essential element of the cause of
action." (Emphasis added.) Perkey v. Portes–Jarol, 2013 IL App (2d) 120470, ¶ 63; Davis v.
Kraff, 405 Ill. App. 3d 20, 31 (2010). In ruling on a motion for a directed verdict "a court does
not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather, it may
only consider the evidence, and any inferences therefrom, in the light most favorable to the party
resisting the motion." Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992).
¶ 18 Because a trial court cannot weigh or judge the credibility of witnesses in deciding a
motion for a directed verdict, the reviewing court need not give substantial deference to the trial
court's ruling. City of Matoon v. Mentzer, 282 Ill. App. 3d 628, 633 (1996). Therefore, we
review a trial court's ruling on a motion for directed verdict de novo. Krywin, 238 Ill. 2d at 225
(2010); Perkey, 2013 IL App (2d) 120470, ¶ 54.
4
See id. ("When a plaintiff comes to a hospital already injured, *** or has an existing
undiagnosed medical condition, *** and while in the care of the hospital is negligently treated,
the question of whether the defendant's negligent treatment is a proximate cause of plaintiff's
ultimate injury is ordinarily one of fact for the jury.").
9
¶ 19 In granting the defendants' motion for a directed verdict in this case, the trial court found
that Hemminger had failed to present evidence that Dr. LeMay's negligent failure to diagnose
Tina's cervical cancer in June 2000 contributed to Tina's death or lessened her chance of survival.
We disagree. Dr. Pfister opined that Dr. LeMay's negligent failure to diagnose Tina's cervical
cancer on June 23, 2000, caused Tina's chances for survival to decrease. Although Dr. Pfister
could not say with certainty what stage Tina's cervical cancer had reached by June 2000, she
testified to a reasonable degree of medical certainty that, when Dr. LeMay examined Tina on
June 23, 2000, Tina's cancer was either at Stage 1 or at Stage 2B. Dr. Pfister noted that,
according to survival data published by the American Cancer Society, the 5-year survival rate for
women with Stage 1 cervical cancer is 80-90 percent, and the 5-year survival rate for women
with Stage 2B cervical cancer is 58 percent. By the time Tina was diagnosed with Stage 3B
cervical cancer in December 2000, her 5-year survival rate had dropped to 32 percent.
Accordingly, based on the FIGO staging system, the American Cancer Society survival statistics,
and her education, training and, experience, Dr. Pfister opined that Dr. LeMay's negligent failure
to diagnose Tina's cervical cancer on June 23, 2000, caused Tina's chances for survival to
decrease. Dr. Pfister's testimony supports a reasonable inference that the 6-month delay in
diagnosing Tina's cancer caused Tina to lose a 26% chance of survival if her cancer was at Stage
2B in June 2000,5 and a 48-58% chance of survival if her cancer was at Stage 1 in June 2000.
5
At one point in her testimony, Dr. Pfister testified that Dr. LeMay's failure to diagnose
Tina's cervical cancer on June 23, 2000, caused Tina's chances for survival to decrease from
between "58-63 percent" (assuming the cancer was "at Stage 2" at that time) to 32 percent.
However, Dr. Pfister testified that Tina could not have had Stage 2A cancer (which carries a
10
¶ 20 Our appellate court has held that the type of evidence presented by Dr. Pfister in this
case was sufficient to establish a prima facie case of proximate causation and to survive a motion
for directed verdict. See Perkey, 2013 IL App (2d) 120470, ¶¶ 64-65, appeal denied, 996 N.E.2d
23 (Ill. Sep 25, 2013) (Table No. 116076). In Perkey, the administrator of the estate of Leanne
Perkey (Perkey) brought a medical malpractice action against Perkey's physician's estate and his
clinic after Perkey died from pancreatic cancer. Id. ¶ 1. The plaintiff claimed that the
physician's delay in diagnosing Perkey's cancer caused Perkey to lose a chance for a cure and was
a cause of her death. Dr. Lowy, a surgical oncologist, testified for the plaintiff on the issue of
causation. Id. ¶¶ 15-23. After identifying a document showing survival rates for each stage of
pancreatic cancer, Dr. Lowy opined that the delay in diagnosing Perkey's cancer was a cause of
the recurrence of her pancreatic cancer and a cause of her death. Id. ¶¶ 19-20, 64. He also
opined that the delay caused Perkey to lose a chance at a cure. Id. ¶¶ 19, 64. Dr. Lowy testified
that, when Perkey's cancer was removed, it was Stage IIB, giving her a 6% chance of a 5-year
survival rate of 63 percent) on June 23, 2000, because Dr. LeMay did not observe a tumor
extending down into the vagina from the cervix at that time, and Dr. Raime did not observe any
such tumor in September 2000. Thus, based on Dr. Pfister's own testimony, if Tina's cancer had
reached Stage 2 in June 2000, it must have been at Stage 2B, which carries a survival rate of 58
percent. Accordingly, Dr. Pfister's testimony suggests that if Tina had Stage 2 cancer in June
2000, Dr. LeMay's negligent failure to diagnose her cancer at that time cost Tina a 26% chance at
survival. We arrive at this figure by calculating the difference between 58 percent (the chances
of surviving Stage 2B cervical cancer) and 32 percent (the chances of surviving Stage 3B cervical
cancer).
11
survival. Id. ¶¶ 21, 64. Although Dr. Lowy conceded that it was "impossible to say" with
certainty at what stage Perkey's cancer was at the time she was initially examined by her
physician in February 2001, he opined to a reasonable degree of medical certainty that it was
likely a Stage IIA at that time, and it could have been at Stage I. Id. ¶ 64. Dr. Lowy testified
that, if it was at Stage IIA, Perkey was twice as likely to be cured at that time than she was when
her cancer progressed to Stage IIB, and if it was a Stage I, she was six times more likely to be
cured. Id. ¶¶ 21, 64. In either case, according to Dr. Lowy, Perkey's cancer "would have been at
an earlier stage in February 2001 and therefore her chances for a cure would have been greater."
Id. ¶ 23. In sum, Dr. Lowy "testified that [Perkey] would have had a greater chance of recovery
had she been diagnosed and treated in February 2001, because he believed that her cancer was at
an earlier stage at that time." Id. ¶ 66. Based entirely on a consideration of Dr. Lowy's
testimony, our appellate court held that the plaintiff had "presented some evidence that [plaintiff's
physician's] alleged negligence, which resulted in [Perkey] not being diagnosed with cancer in
February 2001, decreased her chances of recovering from the disease." Id. ¶ 64. Accordingly,
the court affirmed the trial court's denial of the defendant's motion for directed verdict on the
issue of proximate causation.
¶ 21 Our appellate court reached this conclusion in Perkey even though Dr. Lowy testified
that: (1) Perkey's treatment in February 2001 would have been the same as it was in 2002, when
her cancer was discovered (id. ¶ 18); (2) the survival rate from pancreatic cancer is poor, with
about 23% of patients living 12 months after diagnosis and only 5% alive after 5 years (id. ¶¶ 22,
65); (3) although pancreatic cancer is curable in some cases (id. ¶ 23), it is most often diagnosed
after the disease has metastasized, generally precluding any hope for a cure (id. ¶¶ 22, 65); and
12
(4) if Perkey had pancreatic cancer in February 2001, which Dr. Lowy believed she did, there
was greater than a 50% likelihood that it had already metastasized, and "even if she had been
treated at that time, it was more likely than not that she would have died from the disease." (Id.)
Our appellate court held that these admissions by Dr. Lowy did not entitle the defendants to a
directed verdict, reasoning that:
"under Holton, plaintiff was not required to prove that [Perkey]
would have had a greater than 50% chance of survival or recovery
absent the alleged malpractice. Holton, 176 Ill. 2d at 119. ***
Rather, plaintiff had to present some evidence that the alleged
negligence proximately caused the increased risk of harm or lost
chance of recovery to a reasonable degree of medical certainty
(id.), and plaintiff did so through Dr. Lowy's testimony that
[Perkey] was two to six times more likely to survive five years
(and thereafter live to a natural death) had she been diagnosed in
February 2001 as opposed to July 2002."
(Emphasis added.) Id. ¶ 65.
¶ 22 Dr. Pfister presented exactly the same type of expert testimony in this case. As noted,
Dr. Pfister opined to a reasonable degree of medical certainty that, when Dr. LeMay examined
Tina on June 23, 2000, Tina's cancer was either at Stage 1 (which has a survival rate of 80-90
percent) or at Stage 2B (which has a survival rate of 58 percent). Dr. Pfister also testified that, by
the time Tina was diagnosed with Stage 3B cervical cancer in December 2000, her 5-year
survival rate had dropped to 32 percent, which represents a 26-58 percent reduction of her chance
13
to survive the disease. Like the court in Perkey, we hold that this type of testimony, standing
alone, is sufficient to establish a prima facie case of proximate causation under a lost chance of
recovery theory, and is therefore sufficient to withstand a motion for directed verdict on the issue
of causation.
¶ 23 The defendants argue that Hemminger's causation evidence was speculative and
inadequate because Dr. Pfister "was unable to opine that the outcome in [Tina's] specific case
would have been different with earlier treatment." We disagree. In Holton, our supreme court
made clear that the plaintiff is not required to prove that "a better result would have been
achieved absent the alleged negligence of the doctor." Holton, 176 Ill. 2d at 106 (quoting
Borowski, 60 Ill. 2d at 424)). Thus, Hemminger was not required to show that Dr. LeMay's
negligence actually deprived Tina of a better outcome. Rather, he only needed to show that the
alleged negligence "increased a risk of harm or [a] lost chance of recovery." (Emphasis added.)
Id. at 119. In other words, Hemminger only needed to show that Dr. LeMay's negligence
deprived Tina of the opportunity to undergo treatment that could have been more effective if
given earlier, not that such treatment would have been effective. See, e.g., Walton v. Dirkes, 388
Ill. App. 3d 58, 61 (2009) (plaintiff may survive a motion for directed verdict by presenting
evidence that an earlier diagnosis would have led to treatment that "may have contributed to" the
plaintiff's recovery") (emphasis added); Topp v. Logan, 197 Ill. App. 3d 285, 299-300 (1990)
(plaintiff must present evidence that earlier diagnosis could have altered final result); see also
Wodziak v. Kash, 278 Ill. App. 3d 901, 913 (1996). Under Holton, Hemminger only had to show
a lost chance of survival, not that Tina actually would have survived absent Dr. LeMay's
negligence. Holton, 176 Ill. 2d at 106-07, 111, 119, 123.
14
¶ 24 Here, Hemminger presented sufficient evidence to survive a motion for directed verdict.
Dr. Pfister testified that the course of treatment for Tina's cancer (i.e., chemotherapy and
radiation) would have been the same whether Tina's cancer was diagnosed in June or December
of 2000, and that her chances for surviving would have been better had this treatment started in
June 2000. Put another way, Dr. Pfister's testimony pointed to specific treatment procedures
(i.e., radiation and chemotherapy) that were delayed by Dr. Lemay's negligent failure to diagnose
Tina's cancer in June 2000, thereby increasing the risk of death and decreasing Tina's chances of
survival.6 That is sufficient to establish a prima facie case of causation under Holton and to
withstand a motion for directed verdict. See, e.g., Perkey, 2013 IL App (2d) 120470, ¶¶ 64-65;
see generally Walton, 388 Ill. App. 3d at 67-68; Johnson v. Loyola University Medical Center,
384 Ill. App. 3d 115, 122-24 (2008).
¶ 25 The defendant argues that a directed verdict was proper in this case because Dr. Pfister
failed to connect the survival rate statistics to Tina's particular case, thereby leaving a fatal gap in
Hemminger's causation evidence. We disagree. Dr. Pfister expressly connected the survival rate
statistics to Tina's case by opining that Dr. LeMay's negligent failure to diagnose Tina's cervical
cancer in June 2000 caused Tina's chances for survival to decrease. Dr. Pfister based this opinion
on the American Cancer Society's survival rate tables and on her professional experience,
6
That arguably distinguishes this case from cases in which our appellate court held that a
directed verdict for the defendant was proper, such as Townsend v. University of Chicago
Hospitals, 318 Ill. App. 3d 406, 408 (2001) and Aguilera v. Mount Sinai Hospital Medical
Center, 293 Ill. App. 3d 967 (1997). However, to the extent that these cases are in tension with
Perkey and our holding in this case, we decline to follow them.
15
knowledge, and training. Dr. Pfister did not merely cite a table of aggregate survival rates for a
general population; rather, she relied on that type of information and on her own training and
experience in offering an opinion on Tina's diminished chance for survival. It was appropriate
for Dr. Pfister to base her causation opinion, in part, on survival rate statistics. See Perkey, 2013
IL App (2d) 120470, ¶¶ 64-65. When viewed in the aspect most favorable to Hemminger, Dr.
Pfister's opinion established a prima facie case of proximate causation and was therefore
sufficient to forestall a motion for directed verdict. See Perkey, 2013 IL App (2d) 120470, ¶¶ 64-
65.
¶ 26 We recognize that our holding is arguably in tension with Ayala v. Murad, 367 Ill. App.
3d 591 (2006), a case upon which the defendants rely. In Ayala, the plaintiff's decedent
(Michelle) died of metastatic ovarian cancer. Michelle's mother, as special administrator of
Michelle's estate, sued Michelle's former pathologist, alleging that his deviation from the
standard of care delayed the start of Michelle's treatment and resulted in a decreased chance of
survival. Before trial, the trial court granted the defendant's motion in limine barring the
plaintiff's medical expert from testifying "as to what the course of treatment would have been for
Michelle and how she might have done had she received treatment sooner." Id. at 595. During
his trial testimony, the plaintiff's expert relied upon FIGO survival rate statistics to support his
causation opinion. Id. at 602. Specifically, the expert testified to a reasonable degree of medical
certainty that Michelle most likely had a stage IA tumor in April 1998, which, according to the
FIGO statistics, had a survival rate of 80%, and that by September 1999 (when Michelle's cancer
was finally diagnosed), her cancer had reached stage IV, which had a survival rate of less than
10%. Id. After the close of the plaintiff's case-in-chief, the trial court granted a directed verdict
16
for the defendants. On appeal, our appellate court agreed that the plaintiff's evidence was
insufficient as a matter of law. Id. Our appellate court held that the plaintiff's expert "could only
testify in general terms about the FIGO staging system as he was not allowed, based upon the
trial court's motion in limine, to testify as to what the course of treatment for Michelle would
have been, and how she might have done if she had received treatment sooner, and to connect the
FIGO statistics to Michelle's case." Id. Accordingly, our appellate court concluded that the trial
court's motion in limine prejudiced the plaintiff because it precluded her expert from showing
that the defendant's alleged deviation from the standard of care proximately caused Michelle's
injuries, and it remanded for a new trial. Id.
¶ 27 This case is arguably distinguishable from Ayala because, unlike the expert in Ayala, Dr.
Pfister opined that Tina's chances of survival dropped by the percentages listed in the survival
rate statistics, whereas the expert in Ayala merely staged Michelle's cancer at various time
periods and listed the survival rates associated with those stages. Although the expert in Ayala
testified in general terms that the defendant's delay in treating Michelle's cancer "substantially
reduced [Michelle's] chances of surviving her cancer," reduced her life expectancy, and lessened
the effectiveness of treatment, due to the trial court's motion in limine he was unable to tie the
FIGO survival rate statistics to Michelle's case with the degree of specificity that Dr. Pfister did
in this case. In any event, to the extent that our holding conflicts with Ayala, we decline to
follow it. We find the court's reasoning in Perkey to be more sound and more persuasive.
¶ 28 In challenging the legal sufficiency of Dr. Pfister's causation opinion, the defendants
also point to several concessions made by Dr. Pfister. For example, Dr. Pfister acknowledged
that certain factors particular to an individual's cancer (such as the cancer's histological
17
characteristics, its degree of differentiation, its responsiveness to treatment, and whether the
cancer is exophytic or endophytic) may impact that individual's survival rate, but she conceded
that she lacked the expertise to testify about the effect of any of these factors in Tina's case. In
addition, Dr. Pfister agreed with the American Cancer Society's statement that its survival rate
tables "cannot predict what will happen in any particular person's case." Moreover, Dr. Pfister
conceded that cancer grows at different rates in different people, and that there is no way to tell
how fast it will grow in any particular patient. The defendant's argue that these concessions
entitled them to a directed verdict on the issue of causation.
¶ 29 We disagree. Although the concessions made by Dr. Pfister might affect the weight that
the jury might choose to assign to her causation opinion, they do not render Dr. Pfister's opinion
insufficient to establish proximate causation as a matter of law. The jury should have been
allowed to consider and weigh all of the evidence, including Dr. Pfister's opinion. It is the jury's
province to weigh the evidence presented at trial. As noted above, a directed verdict is
inappropriate when the plaintiff has presented some evidence in support of each essential element
of his or her claim. Perkey, 2013 IL App (2d) 120470, ¶ 63; Davis, 405 Ill. App. 3d at 31. In
ruling on a motion for a directed verdict, a trial court may not weigh the evidence, and it must
consider the evidence, and any inferences therefrom, in the light most favorable to the party
resisting the motion. Maple, 151 Ill. 2d at 453. When Dr. Pfister's testimony is considered in the
light most favorable to Hemminger, it provides evidence of causation sufficient to withstand a
directed verdict.
¶ 30 The defendants also call into question Dr. Pfister's expertise and her competence to
render a causation opinion in this case. For example, the defendants note that Dr. Pfister was not
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a gynecological oncologist and that she had encountered only a "few" patients with cervical
cancer in her practice. However, these considerations merely affect the weight of Dr. Pfister's
opinion; they do not render her opinion deficient as a matter of law. See Moller v. Lipov, 368 Ill.
App. 3d 333, 344 (2006) ("The basis for an expert's opinion goes to the weight of the evidence,
not to its sufficiency, and the weight to be assigned to an expert opinion is for the jury to
determine in light of the expert's credentials and the factual basis of his opinion."); see also
Snelson v. Kamm, 204 Ill. 2d 1, 26-27 (2003). In any event, the defendants may not challenge
Dr. Pfister's qualifications or the foundation for her causation opinion in this appeal because they
have not cross-appealed the trial court's decision to allow Dr. Pfister to offer a causation
opinion.7
¶ 31 In sum, we conclude that Hemminger presented enough evidence to create a triable issue
of fact on the issue of proximate causation. Taking the evidence in the light most favorable to
Hemminger, as we must, we cannot conclude that his causation evidence failed as a matter of
law. The defendants' criticisms of Dr. Pfister's causation opinion merely go to the weight that the
jury might ultimately assign to that opinion. The jury should not have been prevented from
considering the evidence and deciding the issue of causation.
7
The defendants also suggest that Dr. Pfister's causation opinion was flawed because
she gave a range of possible stages for Tina's cancer in June 2000 and was unable to stage Tina's
cancer precisely at that time. However, we have allowed similar testimony regarding cancer
staging and have held that such testimony may be used to defeat a motion for directed verdict on
the issue of causation in cancer cases. See, e.g., Perkey, 2013 IL App (2d) 120470, ¶¶ 64-65; see
also Moller, 368 Ill. App. 3d at 338, 343-44.
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¶ 32 CONCLUSION
¶ 33 For the foregoing reasons, we reverse the judgment of the circuit court of Whiteside
County and remand for a new trial.
¶ 34 Reversed; cause remanded.
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