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01/27/87 Daniel Hall, Ex'r of the v. Northwestern University

January 27, 1987





504 N.E.2d 781, 152 Ill. App. 3d 716, 105 Ill. Dec. 496 1987.IL.61

Appeal from the Circuit Court of Cook County; the Hon. Henry S. Starke, Judge, presiding.

Rehearing Denied February 24, 1987.


PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.


Plaintiff-appellant Daniel Hall brought a medical malpractice action against Northwestern University Medical Clinics (defendant-appellee herein), arising from the death of his mother, Lillian Hall. Mrs. Hall died on January 18, 1975, and her death certificate listed respiratory arrest and metastasized rectal cancer as the cause of her demise. Following a jury trial, a verdict was returned in defendant's favor, and this appeal followed. We affirm the judgment of the circuit court.

On July 30, 1973, Mrs. Hall visited defendant-clinic complaining of constipation and of bloody stools. At the clinic, she saw Dr. John Hare, who took her medical history, ordered tests, and scheduled her for another appointment on October 1, 1973. Dr. Hare was not of the opinion that Mrs. Hall had a tumor of the colon, and stated that there were no clinical findings to warrant further tests in July 1973. When Mrs. Hall returned to the clinic, she felt generally well and did not complain of any constipation. Dr. Hare again took a complete history, examined her physically and performed a digital rectal examination. He concluded that she had arteriosclerotic heart disease, angina pectoris and hypertension. Test results confirmed that Mrs. Hall had a previous heart attack.

Mrs. Hall returned to the clinic on November 12, 1973; she did not complain at that time of any constipation or bowel problems. Dr. Hare again did a complete physical examination, and prescribed treatment accordingly. He saw Mrs. Hall again in June 1974.

Mrs. Hall was admitted to Edgewater Hospital on October 8, 1974, at which time her cancer was diagnosed. As noted, she passed away in January 1975. She was 79 years old at the time of her death.

Dr. Hare was initially named as a defendant in the malpractice suit by plaintiff, but he was never served with process and was accordingly dismissed by the circuit court. Plaintiff attempted to impeach Dr. Hare by inquiring as to how he was being paid for his attendance at trial. Defendant's objections to this inquiry were sustained by the circuit court. During an in-chambers offer of proof, Dr. Hare stated that he was not being paid for his attendance; rather, he was attending the trial "as a point of honor." During the course of the trial, Dr. Hare was seated with defendant's counsel.

Dr. Thomas Bombeck testified as plaintiff's medical expert at trial. He stated that the cause of Mrs. Hall's bloody stools should have been determined by use of a proctoscope in 1973, when Mrs. Hall initially sought medical attention. The failure to do so, according to Dr. Bombeck, constituted a deviation from the accepted standard of medical care, and contributed to Mrs. Hall's ultimate death. Dr. Bombeck was of the opinion that decedent died as a result of cancer of the rectum. He opined that cancer kills by interfering with important bodily functions, and is treated by surgical removal before it can attack vital organs and functions. He admitted that cancer may exist in an individual without immediately producing any symptoms. Survival, in Dr. Bombeck's estimation, depended upon when the cancer had metastasized into other portions of the body. He acknowledged that Mrs. Hall's cancer may have spread prior to July 1973, and placed her chances of survival at that point in time as 50-50.

Defendant's expert pathologist, Dr. Edwin Fischer, stated that before Mrs. Hall had consulted Dr. Hare at the clinic, her tumor had already spread to her liver and lungs, and was beyond the benefit of surgical repair. This spread occurred, according to Dr. Fischer's testimony, during that period of time prior to the manifestation of cancer symptoms. Dr. Fischer offered his expert opinion that, after the metastasis of the cancer, Mrs. Hall was effectively beyond the aid of medicine. He based his Conclusion that the cancer had already spread on a mathematical calculation of the growth of a tumor, assuming a rapid rate of growth. Dr. Fischer also stated that Mrs. Hall had an advanced heart condition, and that this was also a possible cause in her death. Finally, Dr. Fischer opined that there was no negligence on the part of defendant or Dr. Hare, despite the failure to diagnose the cancer, as it had already spread and nothing could have been done to treat decedent effectively.

Appellant requested leave to call a rebuttal expert to contradict Dr. Fischer's opinion that the early detection of a cancer is irrelevant to its treatment if it was "predisposed" to metastasize, claiming that this testimony was a surprise. Dr. Bombeck had already stated that the early detection and treatment of cancer was important. Dr. Bombeck also had testified on the growth rates of cancers and their spread. He stated that he could not say with certainty whether the cancer had spread in July 1973, and opined that any such Conclusion was "[b]alderdash. ...

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