Wiedenbeck v. Searle

FIRST DIVISION
September 22, 2008
No. 1-07-2986
RICHARD WIEDENBECK, Individually and ) Appeal from the
as Special Administrator of the ) Circuit Court of
Estate of CHERYL ANDERSON-WIEDENBECK, ) Cook County.
deceased, )
)
Plaintiffs-Appellants, )
)
v. )
)
HOWARD SEARLE, M.D., ) Honorable
) James P. Flannery, Jr.
Defendant-Appellee. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
The only question in this medical malpractice case is
whether the evidence of record demonstrates a genuine issue of
material fact: was Dr. Howard Searle’s breach of the applicable
standard of care a proximate cause of Cheryl Anderson-
Wiedenbeck’s injuries and subsequent death? Granting Dr.
Searle’s motion for summary judgment, the trial court found there
was insufficient evidence of proximate cause to take the case to
a jury. We agree with the trial court.
FACTS
On November 1, 2001, Cheryl Anderson-Wiedenbeck
(Wiedenbeck), a 38 year-old mother of two, went to the Convenient
Care of Stratford North urgent care facility (Stratford),
complaining of a severe headache. Dr. Searle, a family practice
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physician, took her medical history and examined her. Wiedenbeck
told Dr. Searle she had suffered from migraines in the past but
this one was more severe than any previous headache, having
lasted over two days. She had been treated with over-the-counter
migraine medication without relief, and was experiencing shooting
pains and nausea without vomiting. Dr. Searle noted she had a
slight fever, “boggy” nasal mucosa, and the inability to clear
her ears. Dr Searle performed a routine neurological
examination, which indicated Cheryl Wiedenbeck was within the
normal limits. She was diagnosed with sinusitis and eustachian
tube dysfunction and discharged with antibiotics. She was
advised to follow-up with her primary care physician or return to
the clinic if she did not improve. Dr. Searle did not order a CT
scan or a neurological consultation.
On Friday, November 2, 2001, Wiedenbeck’s headache worsened,
causing her to call back to Stratford. Kim Stock, the nurse with
whom she spoke, told her to give the antibiotics time to work and
to come back to the center the following day if she did not feel
better. Later that evening, Cheryl Wiedenbeck’s husband called
Stratford and said his wife had started vomiting and her headache
had worsened. He was told to take her to the emergency room.
At approximately 9:45 p.m. on November 2, 2001, Dr. Joseph
Boyle, an emergency room physician at Central DuPage Hospital,
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saw Wiedenbeck. Dr. Boyle ordered a CT scan, which was analyzed
by Dr. Gregory Zweig, a neuroradiologist. The CT scan revealed a
colloid cyst in the third ventricle, which was causing
significant hydrocephalus, possible downward tonsillar
herniation, and possible downward transtentorial herniation. Dr.
Boyle consulted with the on-call neurosurgeon, Dr. Douglas
Johnson. Rather than coming in to see the patient himself, Dr.
Johnson suggested she be transferred to a university setting
better equipped to handle her problem.
Wiedenbeck was transferred to the University of Chicago
hospital. When she arrived at approximately 3:00 a.m. on
November 3, 2001, Dr. Christian Sikorski examined her. He found
her condition stable and ordered that an extraventricular drain
kit (EVD) be kept at Wiedenbeck’s bedside. Surgical removal of
the cyst was scheduled for later that morning. At approximately
5:10 a.m. on November 3, 2001, Wiedenbeck’s condition worsened
and she suffered a brain herniation. Dr. Sikorski then inserted
the EVD. As a result of the herniation, Wiedenbeck experienced
irreversible brain damage which ultimately led to her death in a
rehabilitation facility on October 5, 2005.
There is a factual dispute regarding whether Dr. Boyle told
Dr. Johnson and Dr. Sikorski the full results of the CT scan.
Both Dr. Johnson and Dr. Sikorski testified they were not advised
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of Dr. Zweig’s herniation findings and would have responded
differently if they had known. In his deposition, Dr. Sikorski
said he would have performed the EVD immediately upon
Wiedenbeck’s admission to the University of Chicago hospital had
he known the severity of Dr. Zweig’s findings. This conflict in
testimony has no bearing on the case against Dr. Searle.
Richard Wiedenbeck, special administrator of Cheryl
Wiedenbeck’s estate, filed a medical malpractice lawsuit against
Convenient Care of Stratford, Dr. Searle, Central DuPage
Hospital, Dr. Boyle, the University of Chicago, and Dr. Sikorski.
Plaintiff settled his claim against the University of Chicago for
$4.3 million and voluntarily dismissed the action against Dr.
Sikorski.
Following a hearing, the trial court granted Dr. Searle’s
motion for summary judgment, finding plaintiff failed to present
sufficient evidence of proximate cause to take the case to a
jury. The trial court denied plaintiff’s 304(a) motion for leave
to pursue an immediate appeal of the summary judgment order.
Plaintiff then voluntarily dismissed the remaining defendants in
the case, rendering the summary judgment order final.
DECISION
Plaintiff contends the trial court erred in granting summary
judgment in favor of Dr. Searle. Specifically, plaintiff
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contends the record contains expert testimony sufficient to
create a factual question concerning the proximate cause element
of his action.
“Summary judgment is proper where, when viewed in the light
most favorable to the nonmoving party, the pleadings,
depositions, admissions, and affidavits on file reveal that there
is no genuine issue of material fact and that the party is
entitled to judgment as a matter of law.” Northern Illinois
Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill.
2d 294, 305, 837 N.E.2d 99 (2005). Although a party is not
required to prove his case at the summary judgment stage
(Northern Illinois, 216 Ill. 2d at 306), the plaintiff must
present sufficient evidence to create a genuine issue of material
fact (Hussung v. Patel, 369 Ill. App. 3d 924, 931, 861 N.E.2d 678
(2007)). We review an order granting summary judgment de novo.
Hussung, 369 Ill. App. 3d at 931.
A plaintiff in a medical malpractice case must prove: “ ‘(1)
the standard of care against which the medical professional’s
conduct must be measured; (2) the defendant’s negligent failure
to comply with that standard; and (3) that the defendant’s
negligence proximately caused the injuries for which the
plaintiff seeks redress.’ ” Hussung, 369 Ill. App. 3d at 931,
quoting Sunderman v. Agarwal, 322 Ill. App. 3d 900, 902, 750
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N.E.2d 1280 (2001). The parties agree this case turns on whether
plaintiff’s experts adequately established a material question of
fact regarding whether Dr. Searle’s allegedly negligent treatment
proximately caused Wiedenbeck’s injuries and subsequent death.
For our analysis of the summary judgment we find no factual
dispute concerning Dr. Searle’s deviation from the standard of
care.
While the issue of proximate cause is ordinarily a question
of fact for the jury (Townsend v. University of Chicago
Hospitals, 318 Ill. App. 3d 406, 410, 741 N.E.2d 1055 (2001)), at
the summary judgment stage the plaintiff must present affirmative
evidence that the defendant’s negligence was arguably a proximate
cause of the plaintiff’s injuries (Hussung, 369 Ill. App. 3d at
931). If the plaintiff fails to do so, summary judgment is
proper as a matter of law. Hussung, 369 Ill. App. 3d at 931;
Gyllin v. College Craft Enterprises, Ltd., 260 Ill. App. 3d 707,
711, 633 N.E.2d 111 (1994).
Proximate cause must be established by expert testimony to a
reasonable degree of medical certainty. Susnis v. Radfar, 317
Ill. App. 3d 817, 826-27, 739 N.E.2d 960 (2000); Aquilera v.
Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 975,
691 N.E.2d 1 (1998). The causal connection between treatment, or
a delay and treatment, and the claimed injury “must not be
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contingent, speculative, or merely possible.” Aquilera, 293 Ill.
App. 3d at 976.
An expert’s opinion is only as valid as the reasons for the
opinion. Petraski v. Thedos, 382 Ill. App. 3d 22, 28, 887 N.E.2d
24 (2008); Kleiss v Cassida, 297 Ill. App. 3d 165, 174, 696
N.E.2d 1271 (1998). While testimony grounded in “expert analysis
of the known physical facts” is welcomed, conclusory opinions
based on sheer, unsubstantiated speculation should be considered
irrelevant. Petraski, 382 Ill. App. 3d at 31; Kleiss, 297 Ill.
App. 3d at 174; Aquilera, 293 Ill. App. 3d at 975.
In Aquilera, we considered whether the plaintiff failed to
present any evidence of proximate cause. Aquilera visited an
emergency room with complaints of numbness on the left side of
his body. He began suffering seizures shortly after being
admitted to the hospital. A CT scan revealed a massive cerebral
hemorrhage. Aquilera lapsed into a coma and died three days
later. In a wrongful death medical malpractice action against
the hospital, the plaintiff, Aquilera’s wife, offered testimony
from two expert witnesses that the emergency room physician
should have ordered an immediate CT scan, given Aquilera’s
condition.
The emergency medicine expert, Dr. Hamilton, asserted the
delayed CT scan was “definitely related” to Aquilera’s death.
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Aquilera, 293 Ill. App. 3d at 969. Even assuming Aquilera
received a prompt CT scan, however, Dr. Hamilton acknowledged he
would have deferred to a neurosurgeon to decide whether surgical
intervention was necessary. The plaintiff’s neurology expert,
Dr. Vuckovich, testified it was critical that an early CT scan be
performed not only to permit effective treatment of the patient,
but also to determine the precise location and size of the
hemorrhage while still treatable. Dr. Vuckovich did not know,
however, whether surgical intervention would have been ordered
had a prompt CT scan been administered. The trial court entered
judgment notwithstanding the verdict for the defendant.
Affirming the directed verdict, we held:
“The absence of expert testimony that, under
the appropriate standard of care, an analysis
of an earlier CT scan would have led to
surgical intervention or other treatment that
may have contributed to the decedent’s recovery creates a gap in
the evidence of proximate cause fatal to plaintiff’s case. ***
Plaintiff failed to offer evidence to a reasonable degree of
medical certainty that the alleged negligent delay in
administering the CT scan lessened the effectiveness of the
medical treatment given to Aquilera.” Aquilera, 293 Ill. App. 3d
at 975.
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The record contained no evidence to support the plaintiff’s
experts’ opinion that the negligent delay in administering the CT
scan lessened the effectiveness of treatment. Aquilera, 293 Ill.
App. 3d at 974. “When there is no factual support for an
expert’s opinion, the conclusions alone do not create a question
of fact.” Aquilera, 293 Ill. App. 3d at 974.
Similarly, in Townsend, the plaintiff contended an imaging
study should have been performed in the emergency room to
diagnose a urinary tract obstruction. Dr. Leslie and Dr.
Hancock, plaintiff’s experts, both testified the defendant
deviated from the standard of care. When Dr. Leslie was asked
what the defendant would have done if she had complied with the
standard of care and immediately ordered an imaging study, Dr.
Leslie said “[s]he would call another type of physician once she
made the diagnosis.” On cross-examination, Dr. Leslie said an
imaging test would have increased Puckett’s chance of survival,
even if it may not have saved her life. Dr. Hancock testified
Puckett’s chance of survival would approach zero without having
the obstruction removed. She would have had a 40 to 60 percent
survival rate if the obstruction had been diagnosed and treated
in the emergency room. On cross-examination, the defendant’s
attorney asked Dr. Hancock the following questions:
“Q: Now, it’s your opinion that had she
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[the defendant] ordered this test, a [kidney
stone] might have been seen *** right?
A: It might have been seen at the
location of the stone of the ureter [found at
Puckett’s autopsy].
Q: You further testified that if it had
been identified, it would require immediate
attention, correct?
A: Yes.
Q: You’re not the type of doctor that
would provide that next intervention, are
you?
A: No, that’s correct.
Q: What type of doctor would do that?
A: One of two types, a urologist or an
interventional radiologist.
Q: Both of which are outside your area
of expertise, correct?
A: Yes.”
Considering Aquilera, we asked whether the record contained
any evidence to support the opinion of the plaintiff’s experts
that the negligent delays–-an imaging test or transferring
Puckett to the emergency room–-“ ‘lessened the effectiveness of
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treatment?’ ” Townsend, 318 Ill. App. 3d at 412, quoting
Aquilera, 293 Ill. App. 3d at 974. Because there was no expert
testimony that an earlier imaging test or an earlier transfer to
an intensive care unit would have led to surgical intervention or
other treatment that may have contributed to the Puckett’s
recovery, we concluded the jury was left to speculate about
proximate cause. Townsend, 318 Ill. App. 3d at 412. Simply
saying Puckett’s chances of survival would go from 0% to 60% if
“relief” had been provided did not address the causation gap. We
vacated the jury’s verdict in favor of the plaintiff and remanded
the cause to the trial court with directions to enter judgment in
favor of the defendant. Townsend, 318 Ill. App. 3d at 412.
Of relevance here is Susnis v. Radfar, 317 Ill. App. 3d 817,
827-29, 739 N.E.2d 960 (2000), where plaintiffs contended that
had the radiologist properly interpreted an x-ray, subsequent
doctors would have had the opportunity to treat the child’s
enlarged heart condition and possibly avoid or minimize her
injuries. A review of the record established the plaintiffs’
experts offered only an opinion on the radiologist’s deviations
from the standard of care, but no expert evidence was adduced to
a reasonable degree of medical certainty that the radiologist’s
deviations proximately caused the child’s injuries. We affirmed
the trial court’s directed verdict in favor of the radiologist,
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holding the mere possibility of a causal connection was not
enough to sustain the burden of proving proximate cause.
To determine whether the plaintiff in this case presented
sufficient evidence to create an issue of material fact regarding
proximate cause, we have examined the deposition testimony
contained in the record.
Dr. Brown, a family medicine physician, testified that Dr.
Searle deviated from the standard of care by failing to order
both a CT scan and a neurological or neurosurgical consult when
he examined Cheryl Wiedenbeck. With regard to failing to consult
a neurologist or neurosurgeon, Dr. Brown said:
“It’s a deviation from the standard of care.
It has to be the best of what anyone can say.
And that requires, since he’s not a
neurologist or neurosurgeon, to get an expert
in there to make sure he’s not missing
something. He didn’t do that. That directly
caused the delay in diagnosis and all the
pain, suffering, and neurological disease
that poor Cheryl Wiedenbeck suffered.”
Dr. Brown said he could not interpret the standard of care for a
neurologist or neurosurgeon, but he could tell what a neurologist
or neurosurgeon would do with a patient presenting with the worst
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headache of their life associated with nausea–-“and that would be
to rule out some sort of intracranial process with detailed
neurological exam, CBC, sed rate, and CT or MRI of the brain or
both.”
Dr. Searle’s attorney asked Dr. Brown when the diagnosis and
treatment would have been made had Dr. Searle ordered a CT scan:
“Q. Can you tell me when the diagnosis
would have been instituted if Dr. Searle did
as you said he should have done in ordering
the CT scan? When would the results have
come back? When would the diagnosis have
been made? When would the referrals have
been made? What’s the time frame you are
talking about?
A. She was seen at 2:05 p.m. at
Stratford Convenient Care Center. She was
sent home at 1530, which would be 3:30. Had
he [Dr. Searle] taken the history –-
Actually, had he considered the history
properly, called a neurosurgeon, or better
informed the patient that he couldn’t rule
out some sort of intracranial process and
sent her directly to Central DuPage Hospital
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emergency room, let’s say, she gets there by
3:30, 4:00 o’clock.
Q. She leaves at 3:30, so starting then.
A. Okay. *** Let’s say, give her a
half-hour to get there. It’s 4:00 o’clock.
He should have called the emergency room,
talked to the emergency room doctor, told him
that he’s concerned about intracranial –- an
intracranial event of some sort and that this
lady needed CT of the brain or MRI or both
and stat neurological consultation.
Q. Was a CT scan available for this
patient at 4:00 p.m. on November 30 --
A. Yes.
Q. November 1st --
A. Yes.
***
Q. Would you agree, Doctor, that you are
unable to state to a reasonable degree of
medical certainty exactly when she would have
had the definitive surgery at U of C?
A. Oh, I didn’t think we were talking
about diagnosis. And I would assume that, A,
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a neurosurgeon would have been called and
somebody would either come in and seen the
patient –- what I had said is a neurosurgical
consultation was required --
***
Q. My question is, would you agree that
it’s purely speculation on your part to state
when definitive treatment of this colloid
cyst would have been undertaken at U of C or
somewhere else.
A. True. Yeah, exactly. It’s pure
speculation. All I can say is it would have
been sooner, and sooner would have been
better.
Q. How do you know it would have been
sooner if you can’t say when?
A. Well, if somebody met the standard of
care, it would have been sooner.
***
Q. Okay. Then –- But if you assume for
purposes of this question that University of
Chicago deviated from the standard of care in
the care and treatment they provided to Mrs.
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Wiedenbeck on Saturday morning, you would
agree that you could not state to a reasonable degree
of medical certainty they would not do the same thing
and deviated from the standard of care if they were to
see her on Friday?
***
A. I can’t respond to that.
Q. Why is that?
A. I don’t know any of the information
involved, and it’s –- I’m not a neurosurgeon.
I have no opinions on that.”
Dr. Brown said, however, that Wiedenbeck “had on ongoing
process where the increased intracranial pressure put more stress
on the brain,” “*** which means that it would have been less if
it had been timely diagnosed and treated by Dr. Searle.”
Dr. Larkins, plaintiff’s neurology expert, testified that
Dr. Searle was required to order a CT scan in this case. Dr.
Larkins testified that if an EVD had been placed when Wiedenbeck
arrived at the University of Chicago or prior to 3:30 a.m. on
Saturday November 3, 2001 (the time Cheryl Wiedenbeck’s condition
began to deteriorate), she would not have suffered brain damage.
Dr. Searle’s attorney asked Dr. Larkins whether a CT scan
conducted on Thursday would have warranted any type of treatment
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prior to Saturday morning:
“Q. Do you know whether the CT scan
would have shown hydrocephalus on Thursday?
A. I don’t.
Q. Do you know whether or not the
findings on the CT scan would have warranted
any type of intervention prior to Saturday?
A. I don’t.
Q. You would agree that that would be
speculative?
A. Yes.”
Dr. Larkins agreed the CT scan taken on November 2, 2001,
provided the physicians at Central DuPage Hospital with a window
of opportunity to treat Wiedenbeck before the herniation reached
a critical stage.
On cross-examination, plaintiff’s attorney asked whether it
was reasonable to assume the CT scan would have shown some
abnormalities:
“Q. You said you didn’t know, in
response to a question, whether the CT
would show hydrocephalus. Is it
reasonable to assume it would show some
abnormalities based on what we know now?
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MS. BUSCH: Objection, calls
for speculation.
THE WITNESS: You’d see –- the
colloid cyst certainly didn’t just
form. Yeah, I mean, you would see
that.
Q. And colloid cyst has a
unique presentation?
A. Yes. And, you know, unique
appearance.”
Based on the headaches Wiedenbeck had been having, Dr. Larkins
agreed it was probably more true than not that Wiedenbeck had
suffered from some type of ongoing hydrocephalus prior to her
first visit with Dr. Searle.
Dr. Sikorski, the physician who treated Wiedenbeck at the
University of Chicago, testified that if Dr. Boyle had told him
the CT scan conducted on November 2, 2001, showed evidence of
possible herniation in addition to a colloid cyst, he would have
treated her differently when she arrived at the University of
Chicago. Dr. Sikorski said evidence of an ongoing herniation
“would be an indication to do something emergently or urgently,
urgently, emergently,” likely prompting him to insert “an EVD
right away.” Dr. Sikorski did not say whether an earlier CT scan
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conducted on Thursday November 1, 2001, would have indicated
intracranial pressure or possible herniation.
Plaintiff contends the expert testimony established that
without Dr. Searle’s professional negligence, an EVD would have
been inserted sooner and Wiedenbeck would have been saved.
Specifically, plaintiff contends Dr. Brown’s testimony that
treatment “would have been sooner, and sooner would have been
better” had Dr. Searle ordered a CT scan, mixed with Dr. Larkins’
testimony that placing an EVD at any time prior to 3:30 a.m. on
Saturday would have prevented Wiedenbeck from suffering any brain
damage, adequately established a material question of fact
regarding whether Dr. Searle’s deviations from the standard of
care proximately caused Wiedenbeck’s injuries.
Relying on Aquilera and Townsend, however, we find plaintiff
failed to offer evidence to a reasonable degree of medical
certainty that the alleged negligent delay in administering a CT
scan lessened the effectiveness of her medical treatment.
A CT scan was conducted by Dr. Boyle in the emergency room
sometime after 9:45 p.m. on Friday November 2, 2001. The scan
revealed the presence of a colloid cyst in the third ventricle.
Wiedenbeck did not suffer the brain herniation until around 5:00
a.m. on Saturday November 3, 2001, after she had been transferred
to the University of Chicago and examined by Dr. Sikorski.
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Dr. Larkins, plaintiff’s neurology expert, testified that
had an EVD been placed to relieve the intracranial pressure when
Wiedenbeck arrived at the University of Chicago at 3:00 a.m. on
Saturday, or at any time prior to 3:30 a.m. when her condition
began to deteriorate, she would not have suffered brain damage as
a result of the intracranial pressure. Nothing in either of the
plaintiff’s experts’ testimony suggested, however, that an
analysis of a CT scan on Thursday would have led to earlier
surgical intervention or treatment. In fact, Dr. Brown admitted
it would be “pure speculation” to state when definitive treatment
of the colloid cyst would have been undertaken if Dr. Searle had
ordered a CT scan. All Dr. Brown could say regarding causation
is that treatment “would have been sooner, and sooner would have
been better.” As Dr. Brown noted, Dr. Searle would have had to
consult and defer to a neurologist or neurosurgeon regarding
Wiedenbeck’s treatment after a CT scan or neurological consult
had been ordered.
Although Dr. Larkins indicated some type of abnormality
would have been observable in a CT scan conducted on Thursday,
November 1, he admitted he did not know whether the findings on a
CT scan conducted on Thursday would have shown “hydrocephalus”
and would have warranted any type of intervention prior to
Saturday.
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Although both of plaintiff’s medical experts agreed Dr.
Searle deviated from the proper standard of care by failing to
order a CT scan or neurological consult while treating
Wiedenbeck, we find no expert evidence was offered to a
reasonable degree of medical certainty that Dr. Searle’s alleged
deviation caused Wiedenbeck’s injuries or lessened the
effectiveness of her medical treatment. “The mere possibility of
a causal connection is not sufficient to sustain the burden of
proof of proximate causation.” Susnis, 317 Ill. App. 3d at 827.
Even viewing the evidence in the light most favorable to
plaintiff, we find sufficient evidence of proximate cause is
lacking in the record before us.
CONCLUSION
We affirm the trial court’s summary judgment order.
Affirmed.
R. GORDON, P.J., and HALL, J., concur.
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