Kreisman Law Offices Professional Corporation
In this medical malpractice case, plaintiff Daniel Hemminger sued defendants Jeffrey LeMay, M.D., and his medical practice for damages related to the death of Hemminger’s wife, Tina. The lawsuit alleged that the defendants chose not to diagnose and treat her cervical cancer in a timely fashion, which caused her death by lessening her chance of survival. At the close of the plaintiff’s case, the trial judge granted the defendants’ motion for directed verdict finding that Hemminger had failed to present sufficient evidence to show that Dr. LeMay’s negligence was the proximate cause of the woman’s death under a lost chance of survival theory. Hemminger took this appeal.
Tina Hemminger saw Dr. LeMay, an obstetrician/gynecologist, on June 23, 2000 complaining of abdominal pain and spotting. Dr. LeMay completed a pelvic examination, which showed that her cervix was abnormally large and firm. There was no biopsy ordered. Dr. LeMay did not order a microscopic examination of her cervix. About 6 months later, she was diagnosed with cervical cancer. Her cancer was Stage 3B, which has a 5-year survival rate of 32%. She died of metastatic cervical cancer on April 7, 2002.
Her husband sued Dr. LeMay for medical negligence claiming that he was negligent in choosing not to order tests that would have detected his wife’s cervical cancer in 2000. The lawsuit further alleged that had Dr. LeMay diagnosed the cancer in June 2000 rather than in December 2000, she would have had a significantly better chance of surviving the cancer.
At trial, Hemminger submitted Dr. Margaret Pfister as his sole expert witness. Dr. Pfister is a board-certified obstetrician and gynecologist. Dr. Pfister does not treat cervical cancer, but refers patients with the disease to a gynecological oncologist. During her testimony on her education, experience and background, Dr. Pfister stated that she had undergone three months of training in gynecologic oncology and that she regularly read textbooks and journal articles on cervical cancer. Dr. Pfister also testified that she was familiar with the staging system for cervical cancer.
Dr. Pfister testified to a reasonable degree of medical certainty that, when Dr. LeMay examined Tina Hemminger on June 23, 2000, her cervical cancer was either Stage 1 or Stage 2B. Dr. Pfister testified that she did not have 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, none of which Dr. LeMay recorded on June 23, 2000. In addition, Dr. Pfister noted that Tina Hemminger was seen by her family physician in September 2000, and a pelvic examination was completed, which did not show any tumor extending into the vagina.
Dr. Pfister also testified that the only treatments available for cervical cancer are chemotherapy, radiation and in some cases, therapy. Although Tina Hemminger did receive chemotherapy and radiation, Dr. Pfister was not able to say what specific course of treatment would have been diagnosed for her had she been diagnosed in June 2000 or how the treatment might have been different than what she received in December 2000.
At the end of the plaintiff’s case, the defendants moved for directed verdict. That means that the attorneys ask the judge to find that there were no genuine issues of material fact existing in the case and that the judge should direct a verdict in favor of the defendants rather than allow the jury to determine the fate of the parties.
The defendants argued that Hemminger had failed to meet the burden of proving proximate cause by establishing that the defendants’ negligence lessened his wife’s chance of survival. The trial court agreed. The court found that Dr. Pfister was not able to make a connection because she offered only: (1) generalized evidence about the staging of cervical cancer in group populations based on the American Cancer Society’s survival rate table; and (2) a general opinion that earlier diagnoses leads to better results. The trial judge was persuaded by case law that was presented by the defendants’ lawyers.
In this case, Hemminger proceeded under the “lost chance” theory of recovery. This theory “refers to the injuries 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 self treatment or increase the risk of an unfavorable outcome to the plaintiff.” Holton v. Memorial Hospital, 176 Ill.2d 95, 107 (1997).
Naturally, Hemminger argued against the trial judge’s decision to grant the directed verdict and maintained that he had presented evidence that Dr. LeMay’s negligent failure to diagnose his wife’s cervical cancer in June 2000 contributed to her death or lessened her chance of survival. The appellate court agreed that Dr. Pfister’s opinion that Dr. LeMay’s negligent failure to diagnose her cervical cancer on June 23, 2000 caused her chance for survival to decrease. Dr. Pfister testified to a reasonable degree of medical certainty that when Dr. LeMay examined Tina Hemminger on June 23, 2000, her cancer was either at Stage 1 or Stage 2B. The appellate court stated that other decisions have 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 v. Portes-Jarol, 2013 IL App (2d) 120470, ¶63, appealed denied, No. 116076 (Ill. Sept. 25, 2013).
The appellate court restated that the Holton case stood for the proposition that the plaintiff was not required to prove that the patient would have had a greater than 50% chance of survival or recovery absent the alleged malpractice. Rather, a patient or 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. It was concluded that the testimony given by Dr. Pfister was sufficient to establish a prima facie case of proximate causation under a lost chance of recovery theory and therefore would withstand a motion for directed verdict on the issue of causation.
In summary, the appellate court decided that Hemminger did present enough evidence to create a triable issue of fact on the issue of causation that should be decided by the jury. The jury should not have been prevented from considering the evidence and deciding the case on the issue of causation. Accordingly, the directed verdict entered by the trial judge was reversed and the matter was returned for a new trial.
Daniel R. Hemminger v. Jeffrey LeMay, M.D., et al., 2014 IL App (3d) 120392 (June 3, 2014).
Kreisman Law Offices has been handling medical negligence 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 Northbrook, Northfield, Morton Grove, Blue Island, Buffalo Grove, Libertyville, Villa Park, Western Springs, Westmont, Burr Ridge, Hickory Hills, Willow Springs, Burbank, Evergreen Park and Elk Grove Village, Ill.
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