Cook County Surgical Malpractice Verdict Reviewed on Issues of Sole Proximate Cause – Robinson v. Boffa

The Illinois Appellate Court recently affirmed a Cook County Circuit Court verdict in favor of the defendant surgeon in Robinson v. Boffa, No. 1-07-1128. The plaintiff had appealed the not-guilty verdict on the grounds that the trial judge had erred in allowing jury instructions that included sole proximate cause language. However, the appellate court was not persuaded to change the Illinois jury’s decision based on these arguments.

Robinson is an Illinois medical malpractice lawsuit wherein the decedent died about a month after having a second surgery to remove a cancerous colon mass. The second surgery was done just a mere five days after her initial surgery to remove the cancerous tumor because the surgeon incorrectly removed a non-cancerous tissue mass during the first operation.

The decedent’s estate contended that her death was a result of the stress the second surgery placed on her body and that her death could have been avoided had the surgeon removed the correct tumor during the first procedure. However, the surgeon argued that his alleged medical negligence was in fact caused by a vague colonoscopy report which he relied upon in order to determine the location of the tumor, thereby including elements of radiology error. The surgeon also claimed the that preexisting medical conditions of chronic heart failure, diabetes, and renal failure contributed to the decedent’s death, and that therefore he was not negligent.

At the trial’s conclusion the jury received specific instructions from the judge to help them decide upon their Illinois medical malpractice verdict. These jury instructions included language from the Illinois Pattern Jury Instructions Civil No. 12.04 and No. 12.05. The second part of these two instructions includes language on the sole proximate cause of the alleged negligence, which should only be included if the evidence shows that someone other than the defendant, i.e. a third party, could be the sole proximate cause of the negligence.

IPI Civil 3d No. 12.04 tendered by the trial court read:

More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame. However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.

The long form of IPI Civil 3d No. 12.05 tendered by the trial court stated:

If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury. However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the
defendant.

The appellate court agreed with the decedent’s estate’s contention that the trial court should not have admitted evidence supporting a theory that the colonoscopy report was the sole proximate cause of the decedent’s death. The court agreed that even if the defendant surgeon had been misled by the colonoscopy report that he also had a duty to determine whether the tumor he was removing was in fact the cancerous tumor. Therefore the trial court did err in including some of the sole proximate cause language.

However, the appellate court further found that even though the colonoscopy report was not the sole proximate cause of the decedent’s death, the jury did not necessarily need to find that her death was caused by the nearness of the second surgery. The defendants had also submitted a theory that the decedent’s medical history also contributed to her death. While this argument was weak at best, it was conceivable that the jury could have relied on this evidence when making its decision.

The plaintiff has the burden of proof, i.e. the burden of proving that their theory of negligence is the only one and that its defendant is the sole cause of the final outcome. In this case the plaintiff did not prove this, so again, the jury’s decision will stand. Again, higher courts are generally very reluctant to overturn a jury’s verdict unless there is hard proof that the verdict was unsubstantiated. Therefore the trial court stands and the defendant surgeon is found not guilty.

Kreisman Law Offices has been handling Illinois medical malpractice lawsuits for over 30 years, serving those areas in and around Cook County, including Chicago, Skokie, Naperville, and Oak Park.