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05/08/87 of the Honorable Lawrence v. Rush-Presbyterian-St. Luke

May 8, 1987

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION VELMA CHAMBERS, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF THE HONORABLE LAWRENCE CHAMBERS, JUDGE OF THE

CIRCUIT COURT OF COOK COUNTY, DECEASED, PLAINTIFF-APPELLEE

v.

RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER ET AL., DEFENDANTS-APPELLANTS



508 N.E.2d 426, 155 Ill. App. 3d 458, 108 Ill. Dec. 265 1987.IL.601

Appeal from the Circuit Court of Cook County; the Hon. Mary Ann McMorrow, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This appeal arises from actions for survival and wrongful death brought by the plaintiff, Velma Chambers, who is the widow of decedent, Lawrence Chambers. The trial court directed a finding of negligence against defendants, Rush-Presbyterian St. Luke's Medical Center and Dr. Donald Jensen. This finding is not contested. The issues of proximate cause and damages were submitted to a jury, which returned verdicts for plaintiff in the amount of $800,000 for the survival action and $1,500,000 on the wrongful death count. The trial court denied defendants' motion for judgment notwithstanding the verdict and all of their post-trial motions except one that reduced the judgment by $59,150 pursuant to section 2-1205 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1205).

Defendants appeal on the grounds that: (1) the trial court erred in not directing a verdict notwithstanding the verdict against plaintiff on her wrongful death cause since she failed to sustain her burden of proving proximate cause as required by Illinois law; (2) in the alternative, the jury was erroneously instructed on the proximate cause issue; and (3) the damage awards on both the survival and wrongful death counts were excessive, and the trial court committed evidentiary error on the damages issue.

The facts underlying this appeal are as follows. In July 1980, plaintiff's decedent, Lawrence Chambers, aged 53 and an associate Judge of the Cook County circuit court, visited his physician, Dr. Baldwin, complaining of abdominal pains after allegedly indulging in heavy alcohol drinking over the Fourth of July weekend. However, the record supports plaintiff's assertion that Judge Chambers was not an alcoholic. The Judge had previously been treated by Dr. Baldwin for pancreatitis, hypertension, high blood pressure, and gout. Dr. Baldwin suspected liver problems and, since he was going on vacation, referred decedent to defendant, Dr. Jensen, a gastroenterologist specializing in liver disease and an employee of defendant Rush-Presbyterian St. Luke's Medical Center (Rush). Dr. Jensen first examined decedent on July 30, 1980, and admitted him to Rush the next day for testing.

After tests, it appeared that decedent had a partial obstruction of the common bile duct. The obstruction seemed to be two to three millimeters (3/40th of an inch) above the ampulla (the area where the common bile duct meets the pancreatic duct). The X rays showed a normal ampulla. An ultrasound test did not disclose any evidence of a mass in the pancreas nor any dilation of the biliary ducts. Dr. Jensen believed the blockage to be caused either by cancer or chronic pancreatitis. He testified that, at that time, the obstruction was not total since material was still getting through the ducts. Dr. Jensen then decided to take decedent off food by mouth in order to give the pancreas a rest. Decedent was placed on hyperalimentation, i.e., intravenous feeding, on the evening of August 12. On August 11, decedent's blood sugar level was 449, a near-dangerous level. Dr. Jensen stated that he was unaware of this and would have ordered insulin for decedent if he had known of the high level.

On August 13, the staff at Rush noted that decedent had become lethargic. On August 14, decedent's blood sugar had risen to 1104 and he went into a hyperosmolar nonketotic coma caused by the high blood sugar. Testimony of Dr. Jensen and expert witnesses established that good medical practice requires a doctor to frequently monitor patients receiving hyperalimentation. Dr. Jensen admitted deviation from this practice. As a result of the coma, decedent suffered permanent brain damage and received no treatment for a cancer revealed by an autopsy performed after his death four months later.

There was conflicting medical testimony as to the cause of death and the original location of the cancer. The autopsy report, prepared by pathologist Dr. Edmund V. Pellettier, recorded that there was no cancer in the liver or lymph nodes, i.e., it had not yet metastasized at the time of death. It was also noted that the cancer originated in the common bile duct but had later extended into the head of the pancreas by December. Dr. Pellettier testified at trial and changed his Conclusions based upon a 1985 reevaluation done three weeks before trial. He testified that there were cancer cells in the duodenum and lymph glands and that the cancer probably originated near the head of the pancreas, not in the common bile duct. Survival rates for cancers in this general area are affected by where a cancer originates and how far it has spread before treatment.

Plaintiff's expert, Dr. Patrick Sullivan, disagreed with the pathologist's Conclusions as set forth in Dr. Pellettier's testimony. Dr. Sullivan believed that decedent's death was attributable partially to the severe brain injury and partially to the untreated cancer. He stated that early detection of decedent's type of cancer significantly affects the chances of survival. He further stated that the smaller the tumor when detected, the greater the chance for survival and that overall survival rates in this area -- for both large and small tumors -- is approximately 33%. The doctor estimated that this type of tumor, untreated, could double in size in 50 to 120 days. Dr. Sullivan also testified that the August test results showed the tumor to be located in the common bile duct near the ampulla and that the closer a tumor is to the ampulla, the greater the chance of survival. He also indicated that in his opinion, decedent had a good chance for cure and a normal life expectancy when he entered the hospital in August, but that decedent's chance of survival was zero if this type of tumor was untreated.

Defendants' expert, Dr. Harvey Golomb, testified that pancreatic cancer, not the coma, caused decedent's death and that, absent the coma, decedent had only a 33% chance of surviving. Dr. Golomb based his opinion, in part, on the pathologist's testimony. However, he noted that the August tests revealed no pancreatic cancer. Another defendant expert, Dr. Robert Freeark, was also of the opinion that decedent's cancer originated in the pancreas and, as a result, decedent's life expectancy without the coma would have been approximately six months.

Defendants first contend that their motion for a judgment notwithstanding the verdict on the wrongful death count should have been granted because the evidence did not show that, absent the negligently induced coma, decedent would more likely than not have survived his cancer, which was not caused by defendants. Regarding the issue of proximate cause, defendants argue, with some authority, that since plaintiff's medical expert testified that the overall survival rate for cancers of the type decedent had was 33%, which cancer preceded defendants' negligent treatment, it was more probable than not that decedent's death would have occurred irrespective of their negligent treatment. Thus, they assert that as a matter of law, the negligent treatment was not the proximate cause of decedent's death. According to defendants, Illinois law requires a plaintiff to affirmatively show that a defendant's negligence was the proximate cause of the injury and, where plaintiff does not show that there was a more than 50% chance of survival, that burden of proof is not met.

The law in Illinois requires a plaintiff to show that defendant's negligence proximately caused the injury complained of; in other words, it is more probably true than not that the negligence proximately caused the injury. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 424, 328 N.E.2d 301.) It has been stated that this standard does not mean that a plaintiff must prove that a better result would have been achieved absent the malpractice, but only that the proximate cause relationship between the negligence and the injury must be shown by a preponderance of the evidence. (Wise v. St. Mary's Hospital (1978), 64 Ill. App. 3d 587, 589-90, 381 N.E.2d 809.) A problem arises regarding this standard of proof in cases where there is evidence both of medical malpractice and an underlying disease or injury, as in the present case. It is defendants' contention that this proximate cause burden of proof was not met since plaintiff did not show that decedent had a more than 50% chance of surviving the cancer; they argue that plaintiff's theory ...


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