Illinois Appellate Court Reports

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TOWNSEND v. UNIVERSITY OF CHICAGO HOSPITALS, 318 Ill. App.3d 406 (2000)
741 N.E.2d 1055
VERA TOWNSEND, as Special Administrator of the Estate of DEBRA PUCKETT,
Deceased, Plaintiff-Appellee, v. UNIVERSITY OF CHICAGO HOSPITALS,
et al., Defendants-Appellants.
Nos. 1-00-1301, 1-00-1369, Cons.
Appellate Court of Illinois, First District, Third Division
December 20, 2000
Rehearing Denied January 24, 2001
Page 407

Appeal from the Circuit Court of Cook County, No. 96 L 2017, Honorable
James P. Flannery, Judge Presiding.

Cassiday, Shade & Gloor, of Chicago (Bradford D. Roth, Catherine L.
Garvey, and Morgan M. Strand, of counsel), for appellants.

Sal Indomenico & Associates, P.C., of Chicago (Sal Indomenico and Janet
Fasano, of counsel), for appellee.

JUSTICE WOLFSON delivered the opinion of the court:

The question in this medical negligence case is whether the proof
created a fatal gap between the defendant doctor's purported negligent
breach of the applicable standard of care and the death of Debra
Puckett. The trial judge held there was enough evidence of proximate
cause to take the case to the jury, which found in favor of the
plaintiff. We do not agree. We find the defendants are entitled to
Judgment Notwithstanding the Verdict.

FACTS

Debra Puckett (Puckett), a 37 year-old single mother, suffered from
transverse myelitis, a neurological impairment she contracted in 1992
after an adverse reaction to a hepatitis vaccination. Puckett had
decreased motor strength and sensation below her waist, and she was
confined to a wheelchair. Puckett also had an indwelling catheter to
drain her urine.

Around 7:30 p.m. on February 20, 1994, Puckett went to the University
of Chicago Hospital emergency room, complaining of a high fever, diffuse
back pain, and foul-smelling cloudy urine. Dr. Diane Chaney (Chaney), the
emergency room attending physician that night, examined Puckett and
provisionally concluded she had a urinary tract or kidney infection. Dr.
Chaney ordered antibiotics, intravenous fluids, blood tests, and a urine
culture for Puckett.
Page 408

Around 1 a.m. on February 21, Dr. Chaney decided to admit Puckett to
the neurology floor of the hospital, where she could receive treatment
for her infection by medical personnel familiar with the needs of
neurological patients. Shortly after her transfer to the neurology
floor, Puckett's blood pressure fell. A team from the intensive care unit
gave Puckett a central i-v line, and her blood pressure stabilized.

Several hours later, Puckett was transferred to the intensive care
unit, where she continued to receive antibiotics and fluids. Around 10
a.m., Puckett was placed on a breathing machine, and her condition
deteriorated rapidly. Puckett died in the intensive care unit around
4:30 p.m. An autopsy revealed she had a kidney stone, which caused a
severe infection and ultimately septic shock and death.

Vera Townsend (Townsend), special administrator of Puckett's estate,
filed a two-count medical malpractice complaint against, inter alia, the
hospital and Dr. Chaney, under the Wrongful Death Act (740 ILCS 180/0.01
et seq. (West 1998)) and the Survival Act (755 ILCS 5/27-6 (West 1998)).
A jury heard the case.

At the close of Townsend's case in-chief, the trial court directed a
verdict in the defendants' favor on the survival count. The jury
ultimately returned an $850,000 verdict in Townsend's favor on the
wrongful death count. Following unsuccessful post-trial motions by both
parties, including a motion for Judgment Notwithstanding the Verdict made
by the defendants, this appeal and cross-appeal followed.

DECISION

The defendants raise two issues on appeal. First, they contend the
trial court erred in denying their motions for Judgment Notwithstanding
the Verdict because Townsend failed to present any evidence of proximate
cause. Second, they contend they are entitled to a new trial because of
various trial errors.

Judgment Non Obstante Veredicto — Proximate Cause

The trial court should enter judgment non obstante veredicto, or
judgment n.o.v., where "all the evidence, when viewed in its aspect most
favorable to the opponent, so overwhelmingly favors movant that no
contrary verdict based on that evidence could ever stand." Pedrick v.
Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967);
accord Maple v. Gustafson, 151 Ill.2d 445, 453, 603 N.E.2d 508 (1992).
Judgment n.o.v. will be granted only if plaintiff fails to prove an
essential element of negligence, including proximate cause. Suttle v.
Lake Forest Hospital, 315 Ill. App.3d 96, 102, 733 N.E.2d 726 (2000);
accord Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 301 (1942);
see Borowski v. Von Solbriq, 60 Ill.2d 418, 424, 328 N.E.2d 301
Page 409
(1975) (proximate cause is an element of negligence). A motion for judgment
n.o.v. presents a question of law which we review de novo. Williams v.
Hall, 288 Ill. App.3d 917, 919, 681 N.E.2d 1037 (1997); see Keen v.
Davis, 108 Ill. App.2d 55, 62, 246 N.E.2d 467 (1969) ("in determining the
propriety of the granting of a motion for judgment n.o.v., a reviewing
court is confronted with a question of law"); but see Johnson v. National
Super Markets, Inc., 257 Ill. App.3d 1011, 1015, 630 N.E.2d 934 (1994)
(the reviewing court applies the same judgment n.o.v. standard as the
trial court).

Before the trial began, Townsend's attorney informed the court the only
malpractice issues concerned Puckett's care in the emergency room.
Townsend's issues instruction charged the defendants negligently "failed
to order or perform imaging studies in the emergency room, specifically
either a flat plate x-ray, an ultrasound or a CT [scan] of the abdomen"
or "failed to transfer Debra Puckett to a medical or ICU floor in light
of her sepsis."

The defendants contend even if they breached the standard of care, none
of the failures asserted by Townsend was a proximate cause of Puckett's
death. The defendants direct our attention to Aguilera v. Mount Sinai
Hospital Medical Center, 293 Ill. App.3d 967, 691 N.E.2d 1 (1998).

Aguilera visited the Mount Sinai Hospital emergency room with
complaints of numbness on the left side of his body. Shortly after he was
admitted to the hospital, he began to suffer seizures. A CT scan
revealed a massive cerebral hemorrhage. Aguilera lapsed into a coma and
died three days later.

In a wrongful death medical malpractice action against the hospital,
the plaintiff, Aguilera's wife, offered testimony from two expert
witnesses. Both experts testified the emergency room physician should
have ordered an immediate CT scan, given Aguilera's signs and symptoms.

The plaintiff's emergency medicine expert testified a prompt CT scan
would have permitted the medical or surgical intervention that may have
saved Aguilera's life. According to the emergency medicine expert,
Aguilera had a greater-than-50% chance of survival if "appropriately
diagnosed." Aguilera, 293 Ill. App.3d at 969. The emergency medicine
expert asserted the delayed CT scan was "definitely related" to
Aguilera's death. Aguilera, 293 Ill. App.3d at 969. But, assuming
Aguilera received a prompt CT scan, the emergency medicine expert
acknowledged he would have deferred to a neurosurgeon to decide whether
surgical intervention was appropriate. The plaintiff's neurology expert
testified an early CT scan would have permitted effective treatment for
Aguilera, neurosurgery to stop the thalamic
Page 410
bleed. According to the neurology expert, Aguilera had a 75-80% chance of
survival with prompt treatment. But the neurology expert also acknowledged
he would have consulted, if not deferred to, a neurosurgeon on the
appropriateness of surgical intervention. The trial court entered judgment
notwithstanding the verdict for the hospital.

On appeal, we reviewed Holton v. Memorial Hospital, 176 Ill.2d 95,
679 N.E.2d 1202 (1997) and its view of the "lost chance" doctrine.
Holton held the "lost chance" doctrine is not a separate theory of
recovery in Illinois, but is a concept which enters into a proximate
cause analysis where the plaintiff alleges the defendant's negligently
delayed diagnosis lessened the effectiveness of its treatment.
Aguilera, 293 Ill. App.3d at 973 (quoting Holton, 176 Ill.2d at 119). We
agreed with the hospital: judgment n.o.v. is appropriate in a wrongful
death case "where the evidence reveals that no medical treatment was
available for the decedent's fatal illness." Aguilera, 293 Ill. App.3d
at 974.

We examined the plaintiff's expert testimony and concluded:

"Without supporting testimony from a neurosurgeon,
plaintiff's experts' testimony was insufficient to
show that neurosurgery, much less effective
neurosurgery, should have occurred absent defendants'
negligence.

* * *

* * * 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 a CT
scan lessened the effectiveness of the medical
treatment given to Aguilera." Aguilera, 293
Ill. App.3d at 975.

This case, like Aguilera, turns on whether the plaintiff's experts left
behind a proximate causation gap, bearing in mind "the question of
whether defendant's negligent treatment is a proximate cause of
plaintiff's ultimate injury is ordinarily one of fact for the jury."
Holton, 176 Ill.2d at 107; see also Suttle v. Lake Forest Hospital,
315 Ill. App.3d 96, 103-04, 733 N.E.2d 726 (2000).

To answer that outcome determinative question, we turn to the testimony
from Townsend's experts, Dr. Daniel Hancock (Dr. Hancock) and Dr. Bruce
Leslie (Dr. Leslie).

Dr. Leslie testified Dr. Chaney deviated from the standard of care by
failing to order imaging tests, which would have indicated whether
Puckett had a urinary tract obstruction, and by transferring Puckett to
the neurology floor, not the intensive care unit. These deviations
contributed to Puckett's death.
Page 411

According to Dr. Leslie, a urinary tract obstruction must be relieved:
"Well, the bottom line is that if a patient has [a kidney infection]
behind an obstruction, you can give industrial doses of antibiotics and
you won't cure the infection. They will die of the infection."
Townsend's attorney asked Dr. Leslie about Puckett's chance of survival:

"Q: Doctor, do you have an opinion as to Debra
Puckett's chances of survival without the obstruction
being relieved?

A: Yes, I do.

Q: And what is that opinion?

A: Zero.

* * *

Q: Now would you have expected, if Dr. Chaney had
complied with the standard of care by having an
[imaging test] performed, would it have been something
that she would have done to actually relieve the
obstruction or would that be something for her to call
another type of physician?

A: She would call another type of physician, once she
made the diagnosis.

Q: And do you have an opinion, Doctor, as to what her
chances of survival would have been if the obstruction had
been diagnosed?

A: Yes, I do.

Q: And what is that opinion?

A: 40 to 60 percent."

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. The defendants' attorney asked Dr. Leslie about the "next step,"
if a test revealed a kidney stone:

Q: * * * I think you indicated, Doctor, didn't you,
that whatever doctor, if it was an internist, found
the stone, they would then refer it on to a
specialist, is that right?

A: Yes.

Q: And what kind of specialist would that be?

A: You would have two choices. It would be either an
interventional radiologist or a urologist.

Q: But if you had a patient like this, you'd involve one
of those specialists, correct?

A: I probably would involve both."

Dr. Hancock testified Dr. Chaney deviated from the standard of care by
failing to order an abdominal x-ray, which would have ruled out a urinary
tract obstruction, and by transferring Puckett to the neurology floor,
rather than the intensive care unit. These deviations caused or
contributed to Puckett's death.

According to Dr. Hancock, Dr. Chaney ordered appropriate
Page 412
antibiotics, but she should have considered a kidney stone obstruction:
"It's particularly important because antibiotics in nearly any dosage would
have had very little effect in this particular situation without relieving
the obstruction." Townsend's attorney asked Dr. Hancock about Puckett's
chance of survival:

"Q: Doctor, what chance of survival would a patient
have had in this setting with the obstruction not
being diagnosed and relieved?

A: Her survivability would approach zero without having
the relief of the obstruction and appropriate antibiotic
treatment.

Q: And if the obstruction had been diagnosed and
treated in the emergency room and relieved, what
chance of survival would the patient have had at that
time or appropriate therapy?

A: With relief of the ureteral obstruction and
appropriate antibiotic therapy, her survival rate
would have fallen somewhere between 40 and 60
percent."

On cross-examination, Dr. Hancock said, "With a certain degree of
medical certainty I would say that simply increasing the antibiotic
dosage that she received without relieving the obstruction of the ureter
would not have provided an increased degree of survivability for her."
The defendants' attorney continued:

Q: Now, it's your opinion that had she [Dr. Chaney]
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."

Dr. David Chen, Townsend's physical medicine and rehabilitation
expert, offered no causation opinion. But, on cross-examination, the
defendants' attorney asked Dr. Chen about the treatment for kidney
stones:

"Q: Doctor, had an obstructive kidney stone been
diagnosed, that would have been — basically, the
treatment would have gone to a surgeon; isn't that
right?

A: A surgeon may have become involved, yes.

Q: The actual treatment for the kidney stone or the
obstruction that needed that kind of treatment would
be done by in all likelihood a urologist; isn't that
right?
Page 413

A: Yes.

Q: And the urologist would be the one who would be
trained in determining what procedure would be best
for the particular patient; isn't that true?

A: Yes."

In her testimony, Dr. Chaney agreed relieving a urinary tract
obstruction is important to increase antibiotic effectiveness. Townsend's
attorney asked Dr. Chaney:

Q: Now, you wouldn't have relieved the obstruction * * *
yourself?

It would have been your responsibility, if at all, to
diagnose whether or not she did not have an obstruction,
correct?

A: Yes, it's correct that I would not have relieved an
obstruction.

Q: You would have called in a urologist then for that,
right?

A: Somebody would have. Not necessarily me."

Considering Aguilera, we ask: Does this record contain any evidence to
support the opinion of plaintiff's experts that the negligent delays (an
imaging test or transferring Puckett to an intensive care unit) "lessened
the effectiveness of treatment"? Aguilera, 293 Ill. App.3d at 974. Put
another way, would an earlier imaging test or an earlier transfer to an
intensive care unit "have led to surgical intervention or other treatment
that may have contributed to the decedent's recovery"? Aguilera, 293
Ill. App.3d at 975.

Aguilera stands for the proposition that proximate cause in a medical
malpractice case must be established by expert testimony to a reasonable
degree of medical certainty. Susnis v. Radfar, No. 1-99-0519, slip op.
at 15 (November 3, 2000). The causal connection must not be contingent,
speculative, or merely possible. Saxton v. Toole, 240 Ill. App.3d 204,
210, 608 N.E.2d 233 (1992). If the plaintiff fails to create a proximate
cause fact issue for the jury to consider, no prima facie case is made
and a directed verdict against the plaintiff is proper. Wojtowicz v.
Cervantes, 284 Ill. App.3d 524, 532, 672 N.E.2d 357 (1996).

In Susnis, the plaintiffs presented ample evidence that the defendant
radiologist negligently failed to interpret x-rays taken of the minor
plaintiff. The plaintiff's expert said the doctor should have known from
the chest x-ray that the child's heart was enlarged. Other doctors
relied on the radiologist's evaluation. Eventually, the child went into
cardiac arrest and other injuries resulted. The plaintiffs contended
that had the radiologist properly interpreted the x-ray, subsequent
doctors would have had the opportunity to treat the child's condition and
possibly avoid or minimize her injuries. We affirmed the trial judge's
directed verdict in favor of the radiologist. Susnis, No. 1-99-0519,
slip op. at 17. We held the mere possibility of a causal connection is
not enough to sustain the burden of proving proximate cause. Susnis,
317 Ill. App.3d at 827.
Page 414

Plaintiff looks to Wodziak v. Kash, 278 Ill. App.3d 901, 663 N.E.2d 138
(1996), for support. In that case the plaintiff's decedent went to a
hospital emergency room complaining of shortness of breath. A
respiratory stridor — a blocked-throat whistle — was diagnosed. The
defendant doctor ordered observation, then released the patient. Two
days later, after losing consciousness, the patient was taken to another
hospital, where doctors discovered a tracheal obstruction. Emergency
surgery followed. During the surgery the patient suffered a stroke and
then developed permanent brain damage. The medical negligence complaint
alleged the defendant's delay in investigating the cause of the stridor
postponed treatment and was a cause of patient's injury.

We affirmed a verdict for the plaintiff. We were careful to note that
plaintiff's experts testified to a specific procedure — throat
dilatation — that was postponed by the negligently delayed diagnosis.
That is, the delay in investigating the cause of the patient's stridor
lessened the effectiveness of "definitive treatment." Wodziak, 278
Ill. App.3d at 913. Feasibility of that treatment became a jury question.

The record in the case before us does not disclose any potential
treatment for Puckett's condition, "definitive" or otherwise.

Here, Doctors Leslie and Hancock testified Puckett's chance for
survival would have been enhanced had there been earlier diagnosis and
treatment. They, along with Dr. Chen, said an interventional radiologist
or a urologist would have provided the treatment. We can glean from the
record that the treatment would have been "relief" of the obstruction.
Relief of the obstruction would have improved Puckett's chance for
survival.

The question before us is whether more evidence is needed before the
jury is allowed to consider whether the defendants' purported negligence
was a proximate cause of injury to Puckett. The defendants claim there is
a fatal gap in the evidence, as there was in Aguilera and Susnis. That
is, there is no evidence of what a urologist or interventional
radiologist would have done to relieve the obstruction. No one said what
the treatment would have been. No one said whether the right treatment
was available or whether Puckett was a candidate for it, in light of her
condition.

No radiologist or urologist testified in this case. We note in
Aguilera we said a neurosurgeon was the one required to say neurosurgery
should have occurred absent the defendant's negligence.

We conclude the jury in this case was left to speculate about proximate
cause. No expert testimony guided its consideration. We do not say that
no testimony by plaintiff's experts could have satisfied the causation
gap. We simply hold no such evidence exists in this case. Saying her
chances for survival would go from 0% to 60% if "relief"
Page 415
had been provided does not address the causation gap. That kind of testimony
was not enough in Aguilera or Susnis and it is not
enough here. Because there was no proximate cause fact issue for the jury to
consider, plaintiff failed to make out a prima facie
case. The trial court should have granted the defendant's motion for
judgment n.o.v.

For that reason, we vacate the jury's verdict in favor of the plaintiff
and remand this cause to the trial court with directions to enter
judgment in favor of the defendants. Because of our disposition of this
case, there is no need to consider other issues raised by the defendants
in their appeal or by the plaintiff in her cross-appeal.

Reversed and remanded with directions.

BURKE, J., concurs.

HALL, P.J., dissents.

PRESIDING JUSTICE HALL dissenting.

The majority says that there is insufficient evidence of proximate
cause, and that a judgment notwithstanding the verdict should have been
entered in this matter. I respectfully disagree and therefore dissent
from the holding of the majority.

The majority recites, yet ignores, the rigorous standard that must be
met before a judgment may be entered not withstanding the verdict. While
acknowledging that the issue of proximate cause is ordinarily one for the
jury, the majority chooses to substitute its judgment for that of the
jury in this case. When a plaintiff comes to a hospital with an existing
undiagnosed medical condition, and while in the care of the hospital is
negligently treated, the question of whether the defendant's negligent
treatment is a proximate cause of the plaintiff's ultimate injury is
ordinarily one of fact for the jury. Holton, 176 Ill.2d at 107, 679
N.E.2d at 1207.

The evidence is that the plaintiff's decedent died as a result of an
undiagnosed urinary tract obstruction. Doctors Leslie and Hancock
testified that without the obstruction being "relieved," the decedent had
a zero chance of survival. Had the obstruction been relieved, the
plaintiff's decedent had a 40 to 60 percent chance of survival. The
defendants did not remove the obstruction. The plaintiff's decedent
died.

The plaintiff is critical of the failure to call in a urologist or an
interventional radiologist; the failure to order abdominal tests; and the
failure to transfer the plaintiff's decedent to the intensive care unit,
all of which were deviations from the standard of care.

The majority opines that the jury is left to speculate about what a
urologist or an interventional radiologist would have done to remove
Page 416
the obstruction or what the treatment would have been.

However, the instant case differs from Aquilera in this important
respect. In Aguilera, the expert doctors testified that a prompt CT scan
should have been ordered but that had it been done, they did not know for
sure what treatment it would have prompted without a consultation.
Aguilera, 293 Ill. App.3d at 974-75, 691 N.E.2d at 6. In the instant
case, Doctors Leslie and Hancock testified that the obstruction had to be
relieved for the plaintiff's decedent to have a chance of survival.
Their testimony that another doctor would have been called upon to
perform the relief of the obstruction does not, as in Aguilera, fail to
establish a basis for their opinions of proximate cause. The Aguilera
experts did not know if surgical intervention should have been done even
if the CT scan been done earlier; the experts in this case knew and
testified what needed to be done to save the plaintiff's decedent: the
obstruction had to be relieved.

Susnis, also relied on by the majority, is equally distinguishable from
the instant case. In that case, the medical experts presented no
evidence linking the alleged deviations from the standard of care to the
injuries suffered by the infant. Susnis, slip op. at 16. In the instant
case, the medical experts testified that, had the plaintiff's decedent
been properly diagnosed and the obstruction relieved, she could have
survived.

I do not believe that evidence as to the specific type of treatment
which would have been used to relieve the obstruction is necessary to
allow a jury to determine that a failure to render any treatment to
relieve the obstruction is a proximate cause of the injury and subsequent
death of the plaintiff's decedent. This is not a speculative "leap of
faith" that the jury would be required to make, rather a conclusion drawn
from the facts presented by the expert evidence.

The jury is charged to determine, from the facts, proximate cause based
upon the expert evidence. Holton, 176 Ill.2d at 106-111, 679 N.E.2d at
1207-09; Suttle v. Lake Forest Hospital, 315 Ill. App.3d 96, 733 N.E.2d 726
(2000). The jury in this case met their responsibility. We should not
abrogate their verdict by requiring a multicolored road map when a simple
black line will do.
Page 417



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