On Jan. 12, 2009, Paul Vanderhoof was admitted to the hospital for the surgical removal of his gallbladder. This procedure is also called a cholecystectomy. During the surgery, the surgeon, Dr. Richard Berk, severed the patient’s common bile duct after he misidentified it as the cystic duct. Another surgeon was brought in to perform emergency reconstructive surgery to repair the severed duct.
Vanderhoof remained in the hospital for a week after the surgery during which time he was treated for an intermittent, controlled bile leak. A day after his discharge from the hospital he was readmitted with complaints of chest and abdominal pain. For the next two months, Vanderhoof remained an inpatient at two hospitals and a rehab nursing facility. He continued to suffer bile leakage, develop a large liver abscess and pneumonia and ultimately died of septic shock in the hospital on March 19, 2009.
Vanderhoof’s wife, Doris, brought a wrongful death and survival action lawsuit against the surgeon Dr. Berk and NorthShore University HealthSystem. Dr. Berk’s practice, NorthShore University HealthSystem Faculty Practice Associates, was later added as a defendant. When Doris Vanderhoof died, her daughter, Carol Vanderhoof, became the special administrator of her father’s estate. She filed an amended complaint claiming that during her father’s bile duct surgery, Dr. Berk “negligently and carelessly surgically transected” the common bile duct, “failed to perform the necessary precautionary methods to ensure a safe gallbladder removal,” and “failed to call for assistance from a specialist with expertise in biliary surgery” before cutting the common bile duct.
There was a 6-day jury trial during which the parties presented testimony from fact and expert witnesses. At the close of evidence, the defendants submitted a motion for directed verdict, which was denied. The jury deliberated on Feb. 1, 2013 and returned a verdict in favor of the plaintiff and against the defendants Dr. Berk and NorthShore in the amount of $910,742.79. The verdict and order were entered by the judge, and the defendants’ post-trial motion for judgment notwithstanding the verdict was denied.
One of the experts for the Vanderhoof family testified that to a reasonable degree of medical certainty, Dr. Berk’s transaction of Vanderhoof’s common bile duct and nothing else caused the bile leak and sepsis that eventually led to his death. It was this expert physician’s overall opinion that Dr. Berk’s “failure to use all of the tools available to him led to his transecting the common bile duct,” and had Dr. Berk used any one of them, the risk of injury to Vanderhoof’s common bile duct would have been “greatly diminished.”
There were several issues raised on appeal, including whether the circuit court judge was in error for denying the defendants’ motion for judgment notwithstanding the verdict, whether the court abused its discretion in admitting evidence of deviations from the standard of care in the absence of expert testimony that such deviations proximately caused the decedent’s injuries; whether the court abused its discretion in admitting evidence of medical expenses without a proper foundation; whether the statements made by plaintiff’s counsel at trial were prejudicial and denied defendants a fair trial; and whether the jury’s verdict was against the manifest weight of the evidence.
The Illinois Appellate Court found that there was sufficient evidence to submit the case to the jury; thus, the defendants’ motion for a judgment notwithstanding the verdict was denied without error. With regard to the issue of expert testimony and expert evidence to show that Dr. Berk deviated from the standard of care, the appellate court found that there was sufficient trial evidence, taken in the light most favorable to the movant, that no contrary verdict based on this evidence could ever stand was a correct finding. The evidence presented at trial established that Dr. Berk did not utilize the 4-step protocol that the plaintiff’s physician expert Dr. Finks testified was required under the applicable standard of care. The plaintiff did not have to show that Dr. Berk’s failure to take any of the 4 precautionary steps actually deprived the decedent of a better outcome or a completely successful recovery. Furthermore, the plaintiff was not required to prove that Vanderhoof “would have enjoyed a greater than 50% chance of survival or recovery absent the alleged malpractice.” Hemminger v. LeMay, 2014 IL App (3d) 120392.
The defendants also moved in post-trial motions for a new trial claiming that because the trial judge erred in admitting evidence of Dr. Berk’s alleged deviation from the standard of care when any such deviation was not causally linked to Vanderhoof’s injuries and subsequent demise. Whether to admit expert testimony is an issue within the sound discretion of the circuit court; its ruling may not be reversed absent an abuse of that discretion (Snelson v. Kamm, 204 Ill.2d 1, 24 (2003), i.e., when “no reasonable person would take the view adopted by the trial court”) (omitted 1) Ramirez v. SCL Builders, Inc., 2014 IL App (1st) 123663, ¶198). The appeals panel went on to state that it would only reverse the trial court’s denial of a motion for a new trial where “we find an abuse of discretion.”
The defendants argued that Dr. Finks, plaintiff’s expert physician and surgeon, should have been barred from testifying about Dr. Berk’s failure to follow any of the four steps described by him. Defendants claimed that the ruling was improper because Finks’ opinions were not properly disclosed in plaintiff’s responses to Illinois Supreme Court Rule 213(f)(3).
At the close of the trial, the jury was instructed that it could award damages to plaintiff for losses suffered by mother and Carol, Vanderhoof’s daughter, as a result of the death, taking into consideration their relationship to him, mental suffering, grief and sorrow. Of the jury’s verdict of $910,742.79, $360,742.79 was entered for the reasonable expenses of medical care, treatment and services received by Vanderhoof. The defendants argued that the medical expenses were not properly admitted into evidence. The court found that the plaintiff’s burden to establish the charges were reasonable, necessarily incurred as a result of injuries resulting from the defendants’ negligence and paid was met. Arthur v. Catour, 216 Ill.2d 72, 81 (2005).
The defendants also argued that the attorney for the Vanderhoof family misstated the law in closing arguments. However, the appeals panels pointed out that most of the objectionable misstatements of law were not objected to by counsel for the defendants. Failure to make a contemporaneous objection generally will result in forfeiture of the issue “unless the prejudicial error involves flagrant misconduct or behavior so inflammatory that the jury verdict is a product of bias passion, rather than an impartial consideration of the evidence.” Gillespie v. Chrysler Motors Corp., 135 Ill.2d 363, 375-76 (1990).
However, the defendants were right in that to establish proximate cause as opposed to the underlying negligent conduct, plaintiff had to do more than simply establish Dr. Berk could have tried other methods for identifying the structures and failed to do so. The failure must have resulted in a lost chance of recovery for Vanderhoof. Where plaintiff’s counsel talked at length about both the underlying negligent conduct and proximate cause in his closing argument, however, it is unhelpful to pluck out certain of his statements and view them in isolation. That is not how the jury heard them. Taking in context, it appears that the statements were made in an effort to differentiate between a failure to try that deprived the plaintiff of a chance of recovery (something plaintiff was required to demonstrate) and the failure to try that may have resulted in a better outcome (something that was not required). Defense counsel did not object at the trial to four out of the five statements that were argued about in the appellate briefs of the defendants.
In summary of this 47-page appellate court opinion, the plaintiff presented sufficient evidence of proximate cause to overcome defendants’ motion for judgment n.o.v., judgment notwithstanding the verdict. The appellate court also found that the expert testimony can be expressed in terms of probabilities, as opposed to certainties as long as it was within a reasonable degree of medical certainty. The jury’s verdict in terms of the medical expenses paid was not found to be arbitrary or speculative. Thus, the Illinois Appellate Court affirmed the verdict in favor of the Vanderhoof family for this wrongful death and survival action.
Vanderhoof v. Richard S. Berk, M.D. and NorthShore University HealthSystem Faculty Practice Associates, 2015 IL App (1st) 132927 (Dec. 21, 2015).
Kreisman Law Offices has been handling wrongful death cases, medical negligence cases, birth trauma cases and nursing home negligence and 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 40 years in and around Chicago, Cook County and its surrounding areas, including Forest Park, Crestwood, Lincolnwood, Midlothian, Morton Grove, Norridge, Northfield, Olympia Fields, Orland Hills, Steger, South Holland, South Chicago Heights, South Barrington, Skokie, Roselle, Sauk Village, Willow Springs, Riverdale, Barrington, Country Club Hills, Hanover Park and Countryside, Ill.
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