Kreisman Law Offices Professional Corporation
A medical malpractice lawsuit was filed by Daniel R. Hemminger, who sued the defendants Jeffrey LeMay, M.D. and Sterling Rock Falls Clinic Ltd. for damages related to the death of his wife, Tina. The lawsuit alleged that the defendants, in choosing not to correctly diagnose and treat Tina’s cervical cancer in a timely manner, was the cause of her death by lessening her chance for survival.
This is called the lost chance doctrine supported by the case of Holton v. Memorial Hospital, 176 Ill.2d 95 (1997) in which the Illinois Supreme Court held that “to the extent a plaintiff’s chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant’s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery.”
In this case, the trial judge granted the defendants’ motion for a directed verdict after the close of plaintiff’s case alleging that plaintiff failed to present evidence sufficient to establish that Dr. LeMay’s negligence proximately caused Tina’s death under a lost chance of survival. The plaintiff appealed.
On June 23, 2000, Tina saw Dr. LeMay, an obstetrician/gynecologist. She complained of abdominal pain on her right side and spotting. Dr. LeMay completed a pelvic examination, which showed that Tina’s cervix was abnormally large and firm. However, Dr. LeMay chose not to do a biopsy of Tina’s cervix or order a microscopic examination of her cervix. About six months later, Tina was diagnosed with cervical cancer. By that time, her cancer was Stage 3B, which has a 5-year survival rate of 32%. Unfortunately Tina died of metastatic cervical cancer on April 7, 2002.
Hemminger sued Dr. LeMay for medical negligence alleging that he negligently chose not to order tests that would have detected Tina’s cancer in 2000. It was also claimed that had Dr. LeMay diagnosed Tina’s cancer in June 2000 rather than December 2000, Tina would have had a significantly better chance of surviving her cancer.
A board certified obstetrician and gynecologist was Hemminger’s sole expert witness at trial. This doctor, a general gynecologist, does not treat cervical cancer patients. The expert, Dr. Margaret Pfister, refers patients with cervical cancer to a gynecological oncologist. Dr. Pfister testified that she counsels such patients on their likely prognosis. Dr. Pfister testified that she had undergone 3 months of training dedicated to gynecologic oncology and that she regularly reads textbooks and journal articles on cervical cancer.
Dr. Pfister testified at the trial that she regularly reads the journal published by the American Congress of Obstetricians and Gynecologists (ACOG), including ACOG’s publications on the staging and prognosis of cervical cancer. Among other things, 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 Stage 2B. Dr. Pfister reached that conclusion and also said that Tina would not have been at Stage 3 cervical cancer in June 2000 because a Stage 3 tumor extends to the pelvic wall, involves the lower third of the vagina or causes kidney injury, none of those things were present in June 2000. In addition, Dr. Pfister was of the opinion 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. Dr. LeMay did not describe any such tumor when he examined Tina on June 23, 2000. However, Dr. Pfister conceded that she could not rule out that there could be some lateral spread of the cancer by June 2000. She concluded that the cancer might have reached Stage 2B at that time.
Dr. Pfister also testified based on published data that the 5-year survival rate for women with Stage 1 cervical cancer is 80-90% and that the 5-year survival rate for women with 2B cervical cancer is 58%. When Tina was diagnosed with Stage 3B cervical cancer in December 2000, her 5-year survival rate was just 32%.
Dr. Pfister noted that Tina was seen by her family practice physician in September 2000 who did a pelvic examination and did not report seeing any tumor extending into the vagina.
Dr. Pfister stated that the only treatments available for cervical cancer are chemotherapy radiation and in some situations surgery. When Tina’s cancer was diagnosed, she was treated with chemotherapy and radiation. Dr. Pfister acknowledged that she would not have known how Tina might have responded to treatment if she had been diagnosed and treated in June 2000 rather than in December 2000.
After the close of Hemminger’s case, the doctor and his practice group moved for a directed verdict, meaning that they asked the court to enter judgment in their favor as opposed to allowing the jury to deliberate the case at the close of the defendants’ case. The defendants argued that the plaintiff, Hemminger, had failed to meet his burden of proof as to proximate cause by establishing that the defendants’ negligence lessened Tina’s chance of survival. The trial court agreed, adding that the law of proximate causation cannot be speculative, i.e., a plaintiff may not establish proximate cause “based on mere possibilities” or generalities.
The trial judge 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 connection because she offered only generalized evidence about staging and a general opinion that an earlier diagnosis would have led to a better result.
The Illinois Appellate Court pointed out that one of the elements of a medical negligence claim is an injury proximately caused by the physician’s lack of skill or care. Solomon v. Edward Hospital, 209 Ill.2d 100, 112 (2004). In order to prove proximate cause, plaintiff must prove that the defendants’ negligence “more probably than not” caused the plaintiff’s injury. Holton v. Memorial Hospital, 175 Ill.2d 95, 107 (1997).
In this case, Hemminger brought this lawsuit under the “lost chance” theory of recovery. In a motion for directed verdict, a trial judge cannot weigh or judge the credibility of witnesses in deciding a motion for directed verdict. The reviewing court need not give substantial deference to the trial court’s ruling.
The appellate court stated that in other cases, it has been held that the type of evidence presented by Dr. Pfister in this case was sufficient to establish a prima facia of proximate causation and to survive a motion for directed verdict. See, Perkey, 2013 IL App (2d) 120470. In Holton, the Illinois Supreme Court made it 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. Here, Hemminger was not required to show that Dr. LeMay’s negligence actually deprived Tina of a better outcome. The court stated that rather Hemminger needed only to show that the alleged negligence “increased a risk of harm or [a] lost chance of recovery.” In other words, Hemminger needed only 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).
In sum, the panel concluded 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, the court stated that it could not conclude that his causation evidence failed as a matter of law. The jury should not have been prevented from considering the evidence and deciding the issue of causation. For those reasons, the entry of the directed verdict in favor of the defendants was reversed and the case was returned to the trial court for a new a trial.
Daniel R. Hemminger, et al. v. Jeffrey LeMay, M.D., et al., No. 2014 IL App.(3d) 120392 (January 21, 2014).
Kreisman Law Offices has been handling medical negligence cases, birth injury cases, hospital negligence cases and nursing home abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Maywood, Melrose Park, Midlothian, Morton Grove, Mount Prospect, Niles, Northbrook, Northfield, Northlake, Oak Park, Olympia Fields and Glenview, Ill.
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