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11/10/88 Judith Ann Stevens, As Adm v. Raja M. Sadiq Et Al.

November 10, 1988





530 N.E.2d 1159, 176 Ill. App. 3d 333, 125 Ill. Dec. 750 1988.IL.1639

Appeal from the Circuit Court of Vermilion County; the Hon. David G. Bernthal, Judge, presiding.


PRESIDING JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.


On November 29, 1984, the decedent, Lula O'Dell, brought suit in the circuit court of Vermilion County against defendants Raja M. Sadiq and Brijnandan S. Sodhi for damages resulting from their alleged negligent medical diagnosis and treatment of her. A two-count amended complaint was later filed. Lula O'Dell died, and her granddaughter, Judith Ann Stevens, who had been appointed administrator of Lula O'Dell's estate, was substituted as plaintiff. After plaintiff had been given leave to dismiss a count charging wilful and wanton misconduct, the case proceeded to trial before a jury on a count charging negligence. At the close of plaintiff's case, the court allowed defendants' motion for a directed verdict. Judgment was entered on that verdict on October 6, 1987.

On appeal, plaintiff maintains the court erred in directing the verdict and rejecting certain evidence offered by plaintiff. We hold that the court properly directed a verdict because of the failure of plaintiff to prove standards of treatment by which the allegedly negligent conduct of defendants could be gauged. We also hold that the evidence excluded by the court, of which plaintiff complains, bore only upon damages. Because of the proper direction of a verdict as to liability, any exclusion of evidence as to damages was not prejudicial. Accordingly, we affirm.

The count upon which the case was tried alleged: (1) defendants were the personal physicians of plaintiff Lula O'Dell; (2) on March 6, 1981, they diagnosed her as having metastatic bone cancer when she did not have bone cancer or any other cancer; (3) they advised her the cancer was extensive and incurable and that her life expectancy was between two months and two years; (4) based on defendants' diagnosis, the family agreed with defendants that no surgery would be performed to locate the primary source of the cancer and only the symptoms of the cancer would be treated; (5) defendants then treated O'Dell with various, increasingly larger dosages of narcotics and controlled substances and radiation treatments; (6) on December 9, 1982, plaintiff learned she did not have bone cancer or any other cancer, but rather had senile osteoporosis, with multiple vertebral compression fractures, and iron deficiency anemia; and (7) she was then discharged from a hospital, and all narcotics and controlled substance treatments were discontinued.

The foregoing count alleged defendants were guilty of negligence because of their (1) failure to timely diagnose and treat the decedent for osteoporosis, compression fractures, and iron deficiency anemia; (2) advice to the decedent, made without adequate knowledge, that she was dying of metastatic bone cancer; (3) treatment of her for bone cancer without adequate knowledge that condition existed; (4) failure to perform proper tests to determine the presence of bone cancer; (5) failure to perform a bone marrow tissue biopsy until November 29, 1982; (6) treatment of the decedent with high doses of narcotics; (7) abrupt termination of decedent's use of narcotics; and (8) failure to treat the decedent for narcotic and drug addiction. The count alleged that, as a result of defendants' negligence, the decedent suffered great mental, physical, and emotional distress, was required to terminate her use of narcotics "cold turkey," and suffered permanent injury and physical pain because of defendants' failure to timely diagnose and treat her osteoporosis, fractures, and anemia.

To establish a prima facie case of negligence in medical treatment, a plaintiff must show, by expert testimony (1) proof of the applicable standard of care against which the defendant physician's conduct is measured; (2) a deviation from that standard; and (3) a proximate causal connection between the deviation and the alleged injuries. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Burrow v. Widder (1977), 52 Ill. App. 3d 1017, 368 N.E.2d 443.) Expert medical testimony is required to establish the standard of care and the defendants' deviation from that standard unless the physicians' negligence is so grossly apparent or the treatment so common as to be within the everyday knowledge of a lay person. (Purtill, 111 Ill. 2d at 242, 489 N.E.2d at 872.) Two other exceptions to the requirement of expert testimony, in addition to the "common-knowledge" or "gross-negligence" exceptions, have been recognized by the supreme court in Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253. There, hospital licensing regulations, accreditation standards, and bylaws were admitted as evidence of the standard of care by which a defendant hospital could be Judged, and the court allowed expert witnesses to be cross-examined concerning recognized treatises in their field. Neither exception is applicable here.

The malpractice alleged here was the alleged misdiagnosis of cancer, the course of treatment following the misdiagnosis, and the failure to treat other conditions which existed at the time of the misdiagnosis. This is not the type of situation that is so grossly apparent or where the common sense of laymen could provide the standard of care. Expert testimony was required to establish the standard of care and, as we will explain, no such testimony was introduced here. Where a plaintiff has failed to produce any evidence on a vital element of the case, directing a verdict for defendants is proper and required. Alton v. Kitt (1982), 103 Ill. App. 3d 387, 392, 431 N.E.2d 417, 421.

At trial, decedent's granddaughters, Claresse Elliott and Judith Ann Stevens, testified defendant Sodhi advised them in March 1981 that decedent had cancer in five different areas of the bones, that the cancer had metastasized, and that it was terminal. Both witnesses said Sodhi estimated decedent's life expectancy to be between two months and two years. They also testified that Sodhi wanted to perform exploratory surgery to locate the primary site of the cancer, but the witnesses refused to allow the surgery in light of decedent's age and Sodhi's belief the surgery would not aid in her recovery. Finally, both witnesses testified that Sodhi informed them on December 9, 1982, that decedent did not have cancer.

A number of physicians who had treated or examined decedent testified at trial. Although none of the other physicians indicated a positive diagnosis of metastatic bone disease, one cancer specialist said the X rays could indicate cancer, but she could not tell. She further noted it was "nearly impossible to prove that she did not have a malignancy." Thus, the question of whether the decedent had bone cancer was not established with certainty and to the extent it was an issue, a jury question existed. None of these witnesses, however, were asked to express an opinion as to any prevailing standard of medical practice. In fact, plaintiff admittedly relied entirely upon the testimony of defendant Sodhi to establish the standard of care in this case. It is undisputed that the testimony of a defendant physician may be sufficient to establish the standard of care. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 259, 381 N.E.2d 279, 284.

Here, defendant Sodhi testified at trial under cross-examination by plaintiff pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1102). He denied telling Elliott or Stevens that decedent had cancer or that he had told them she had a limited life expectancy. He testified he told Elliott, who is a licensed practical nurse, that he had examined a bone scan report from a radiologist which "looked like" metastatic bone cancer. He said he told her he could not make a definitive diagnosis of bone cancer without a tissue biopsy of the area. He said, however, she did not want the biopsy performed or the cancer treated because of decedent's age and other medical problems. A biopsy was not performed until November 1982, and Sodhi indicated that ...

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