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Russell v. Subbiah

OPINION FILED NOVEMBER 7, 1986.

MICHAEL RUSSELL, A MINOR, BY HIS MOTHER, MICHELLE RUSSELL, PLAINTIFF-APPELLANT,

v.

BAKKIAM SUBBIAH, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Whiteside County; the Hon. Jeffrey O'Connor, Judge, presiding.

JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:

The defendant, Dr. Bakkiam Subbiah, was charged with negligence in his care of the plaintiff, Michael Russell, who at the age of two years suffered from what was ultimately determined to be a spinal cord tumor. The plaintiff alleged that Dr. Subbiah's original misdiagnosis of his condition as Guillain-Barre Syndrome, and the resulting delay in rendering the proper treatment for the tumor, caused increased injury to the plaintiff's right leg and prolonged his recovery period.

The trial court granted summary judgment for the defendant on the ground that the plaintiff's evidence fell short of the preponderance needed at trial to establish that the delay proximately caused the plaintiff's injury. The plaintiff claims that he established proximate cause through the deposition testimony and affidavit of his expert, Dr. Peter Heydemann. We find the plaintiff's position to be without merit, and affirm the trial court's ruling.

For the purposes of this opinion, it will not be necessary to delve into the details of the defendant's treatment of Michael Russell. There is no issue with respect to the matter of Dr. Subbiah's alleged deviation from applicable standards of medical care.

The focus of the debate as to whether the plaintiff's expert did or did not establish proximate cause is upon the following excerpt from Dr. Heydemann's deposition:

"MR. McHARD (defendant's attorney): So, to clarify your opinion that — are you saying that you are able to state with a reasonable degree of medical certainty that the delay of diagnosis of this spinal cord tumor caused Michael Russell to have a longer period of recovery in his right leg?

DR. HEYDEMANN: That is hard to state with certainty, given all the variables that are involved. I think, you know, as far as general principle goes, I think it's a contributing factor.

MR. McHARD: But I'm asking for an opinion based on a reasonable degree of medical certainty.

DR. HEYDEMANN: The answer is I cannot say that, no."

The plaintiff maintains that Dr. Heydemann's theory of the case was that the tumor, itself, was the most direct cause of the injury, but that the delay in diagnosis was a contributing factor. At one point in the expert's deposition, however, the following exchange took place:

"MR. McHARD: Do you have an opinion based upon a reasonable degree of medical certainty as to whether anything Dr. Subbiah did or failed to do from 6/17/84 until the child's transfer to Iowa City caused proximately any of those extended rehabilitation problems with the right leg?

DR. HEYDEMANN: What does `proximately' mean?

MR. McHARD: Direct, as the cause that you ...


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