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05/30/95 DIANE GOVIS LECROY v. ROBERT P. MILLER

May 30, 1995

DIANE GOVIS LECROY, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF PETER GOVIS, DECEASED, AND DIANE GOVIS LECROY, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
ROBERT P. MILLER, M.D., R.M. MEYER, M.D., J.M. CAMPBELL, M.D., AND R.P. MILLER, M.D., LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Irwin J. Solganick, Judge Presiding.

The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff, Diane Govis Lecroy, individually and as special administrator of the estate of her deceased husband, Peter Govis, appeals a jury verdict finding defendant, Robert P. Miller, M.D., *fn1 not guilty of medical negligence.

On July 20, 1988, Peter Govis died of complications due to lung and liver cancer. Previously, in October 1986, he had been diagnosed with cancer of the larynx and had received a laryngectomy. This litigation arises out of Diane Govis Lecroy's allegations that in January 1986 Dr. Miller negligently failed to biopsy abnormal tissue he had observed in Peter's throat and to develop a follow-up examination plan, thereby delaying the diagnosis of his laryngeal cancer until it had the opportunity to begin metastasizing to his lungs and liver.

In August 1985, Peter Govis was 30 years old. He had begun experiencing hoarseness in his throat. A neighbor referred him to Dr. Stephen Yeh, an otolaryngologist (ENT). Dr. Yeh attempted to examine Peter's throat and vocal cords by mirror, but Peter had a hyperactive gag reflex, which made the exam difficult. Peter gagged and vomitted and Dr. Yeh discontinued the exam. Ten days later, onAugust 24, Dr. Yeh had a follow-up appointment with Peter at Evanston Hospital where he performed an indirect laryngoscopy, which involves the feeding of a fiber-optic device through the patient's nose down into his throat. Dr. Yeh performed this procedure to give himself the view of Peter's vocal cords that he desired, which he had been prevented from seeing through a mirror exam because of Peter's hyperactive gag reflex. Dr. Yeh saw nothing that appeared to be a tumor; however, he noted that Peter had diffuse redness of the larynx. Dr. Yeh attributed this redness to voice abuse -- Peter was a truck driver who had to yell in the course of his work -- and possibly to exposure to toxic fumes. Dr. Yeh did not take a biopsy of Peter's larynx. He would not have biopsied a diffuse process, such as he viewed in Peter's throat, because he would not know where to direct the biopsy. According to Dr. Yeh, to biopsy diffuse redness "would be considered frivolous." Dr. Yeh instructed Peter to rest his voice and avoid diesel fumes for about a week.

Peter followed Dr. Yeh's instructions and returned to work; however, the hoarseness persisted. Peter never returned to see Dr. Yeh after the Evanston Hospital visit. Later in the fall, as Peter continued to experience hoarseness and began to experience pain while swallowing hard foods, he visited Dr. Dale, an ENT practicing in Park Ridge, Illinois. Peter saw Dr. Dale on two occasions. Peter reported to Dr. Dale that he had been suffering from hoarseness and that he had also experienced some difficulty swallowing. Dr. Dale attempted a mirror examination during both visits, but Peter experienced his gagging problem. Dr. Dale was not equipped to further examine Peter, so he referred Peter to Dr. Robert Miller, who is also an ENT.

Peter first visited Dr. Miller on December 14, 1985, at his office in Park Ridge. Peter related his hoarseness and swallowing problems to Dr. Miller. Dr. Miller's records for Peter do not indicate that Peter told him that he had seen Dr. Yeh prior to seeing him. Dr. Miller attempted a mirror exam and an indirect laryngoscopy on December 14, but Peter experienced his gagging problem, and Dr. Miller discontinued the exam immediately, noting the hyperactive gag reflex. Dr. Miller determined that he would need to perform a direct laryngoscopy on Peter, which required hospitalization and anesthesia.

Dr. Miller performed the direct laryngoscopy on Peter on January 8, 1986, at Lutheran General Hospital. Diane accompanied Peter to Lutheran General for this procedure. After the procedure, according to Peter's evidence deposition, Dr. Miller told Peter that he had chronic laryngitis, and that he did not have cancer. In his examreport, Dr. Miller recorded that "the supraglottic structures (those above the vocal cords) were noted to have a slightly granular appearance with mild inflammation," a condition Dr. Yeh had not noted in his exam. Dr. Miller also noted mild inflammation of the vocal cords, though "slightly more on the left than on the right." According to Dr. Miller, a granular appearance is not normal and the granular appearance of the supraglottic structures would not account for hoarseness, but the inflamed vocal cords would. Dr. Miller diagnosed chronic laryngitis of unknown etiology. Dr. Miller further stated that laryngitis can be caused by numerous things, including voice abuse, exposure to toxic chemicals and fumes, as well as reflux of stomach acid. Dr. Miller also concluded that there was not a cancerous process in the supraglottic structures.

The primary reason that Dr. Miller performed the direct laryngoscopy was to determine if there was anything he needed to biopsy. Dr. Miller did not biopsy the granular area because there was no specific point that appeared different from the rest, which is the general indicator for biopsy. Without such an area, he would have to guess where to biopsy. According to Dr. Miller, doctors need to focus on some kind of visible lesion for biopsy rather than a general area. The standard of care does not include the performing of random biopsies on the voice box.

Dr. Miller told Peter to rest his voice for a week and to go on a two-week vacation. Dr. Miller directed that a discharge sheet be written. That sheet included a notation that Peter was to return to see Dr. Miller in three weeks. Before he left the hospital, Peter read and signed this form. Peter did not return to see Dr. Miller after January 8, 1986.

Peter followed Dr. Miller's instructions as to voice rest and then resumed his daily routine. Peter saw no doctors regarding his throat between January and August 1986. During that time, his voice progressively worsened, although for a period of between a few weeks, according to Peter's evidence deposition, to almost two months, according to the medical records of Dr. Joyce Schild who subsequently treated Peter, his hoarseness abated. Peter's swallowing problem progressively worsened to the point where Peter had difficulty swallowing soft foods, as well as hard. Peter also developed an ear ache.

According to Peter's evidence deposition, in September 1986 Peter decided that his problems had persisted too long and he consulted Dr. Schild, an ENT at the University of Illinois in Chicago. Dr. Schild's notes revealed that Peter had experienced hoarseness and right throat and ear pain for a number of months which had abated for 1 1/2 months and then reappeared. Dr. Schild scheduled Peter fora computerized tomography examination (CT scan). On September 29, 1986, Dr. Schild informed Peter that the CT scan had revealed a mass in Peter's throat, which prompted Dr. Schild to schedule a direct laryngoscopy and biopsy of the mass. As a result of the biopsy, Dr. Schild diagnosed squamous cell carcinoma of the larynx. She scheduled Peter for a laryngectomy, which she performed around October 23, 1986.

Dr. Schild testified that absent the mass revealed by the CT scan, she would not have biopsied Peter's throat because random biopsies of the larynx are not generally done. Rather, a doctor looks for a specific area of abnormality. Dr. Schild stated that granular tissue and mild inflammation without more was not an indicator to perform a biopsy. According to Dr. Schild, Peter's swallowing difficulty was not cancer-related. Dr. Schild further explained that laryngeal tumors are classified on a scale using the letters T, N, and M, where T0 through T4 indicates the increasing size of the tumor, N0 through N3 represents whether the tumor has invaded the adjacent lymph nodes, and M0 and up indicates the extent to which the tumor has metastasized to other areas of the body. Dr. Schild's examination of Peter's larynx revealed that Peter had a T4,N0,M0 tumor, meaning it was a large tumor that had not spread beyond the larynx. Based on this scale, Dr. Schild estimated Peter's chance of survival at 50% to 65%. Dr. Schild could not conclude how long Peter's tumor had been present.

After the laryngectomy, Peter underwent radiation therapy to destroy any remaining cancer in his throat and to prevent nodal cancer in his neck. As a result of the laryngectomy, Peter lost the use of his voice and underwent a tracheostomy to enable him to breathe through a hole in his neck. After completing radiation therapy, around March 1987, Peter returned to work part-time, and then full-time in May 1987. Peter stopped working on October 23, 1987, due to an injury unrelated to his cancer. He was scheduled to return to work on January 28, 1988. However, in late December, after a routine chest x-ray, Dr. Schild discovered a spot on Peter's lung, which was later diagnosed as squamous cell carcinoma. The initial diagnosis was that the cancer had metastasized from the larynx; however, it could also have been a second primary tumor. By March 1988, two additional tumors had been diagnosed in Peter's liver. These were definitely the result of metastasis from either the larynx or the lung because squamous cells do not exist independently in the liver. Peter died on July 20, 1988.

Dr. Edward Weisberger testified as an expert on behalf of plaintiff Diane Govis Lecroy. Having reviewed only Dr. Miller's written findings, he asserted that Peter's laryngeal tumor was present in its early stages on January 8, 1986. Dr. Weisberger further asserted that Dr. Miller violated thestandard of care on January 8, 1986, by failing to biopsy the granular tissue in Peter's throat when he had the opportunity during the direct laryngoscopy. According to Dr. Weisberger, this failure caused a delay in the diagnosis of Peter's cancer, contributing to his death. Dr. Weisberger conceded, however, that had Peter returned to see Dr. Miller three weeks later and had Dr. Miller biopsied Peter then, Dr. Miller would have been within the standard of care. Dr. Weisberger also stated that Dr. Miller violated the standard of care by failing to develop a proper follow-up plan for Peter. However, at the ...


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