Appeal from the Circuit Court of Cook County. No. 96 L 2017 Honorable James P. Flannery, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
The question in this medical negligence case is whether the proof created a fatal gap between the defendant doctor's purported negligent breach of the applicable standard of care and the death of Debra Puckett. The trial judge held there was enough evidence of proximate cause to take the case to the jury, which found in favor of the plaintiff. We do not agree. We find the defendants are entitled to Judgment Notwithstanding the Verdict.
Debra Puckett (Puckett), a 37 year-old single mother, suffered from transverse myelitis, a neurological impairment she contracted in 1992 after an adverse reaction to a hepatitis vaccination. Puckett had decreased motor strength and sensation below her waist, and she was confined to a wheelchair. Puckett also had an indwelling catheter to drain her urine.
Around 7:30 p.m. on February 20, 1994, Puckett went to the University of Chicago Hospital emergency room, complaining of a high fever, diffuse back pain, and foul-smelling cloudy urine. Dr. Diane Chaney (Chaney), the emergency room attending physician that night, examined Puckett and provisionally concluded she had a urinary tract or kidney infection. Dr. Chaney ordered antibiotics, intravenous fluids, blood tests, and a urine culture for Puckett.
Around 1 a.m. on February 21, Dr. Chaney decided to admit Puckett to the neurology floor of the hospital, where she could receive treatment for her infection by medical personnel familiar with the needs of neurological patients. Shortly after her transfer to the neurology floor, Puckett's blood pressure fell. A team from the intensive care unit gave Puckett a central i-v line, and her blood pressure stabilized.
Several hours later, Puckett was transferred to the intensive care unit, where she continued to receive antibiotics and fluids. Around 10 a.m., Puckett was placed on a breathing machine, and her condition deteriorated rapidly. Puckett died in the intensive care unit around 4:30 p.m. An autopsy revealed she had a kidney stone, which caused a severe infection and ultimately septic shock and death.
Vera Townsend (Townsend), special administrator of Puckett's estate, filed a two-count medical malpractice complaint against, inter alia, the hospital and Dr. Chaney, under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)) and the Survival Act (755 ILCS 5/27-6 (West 1998)). A jury heard the case.
At the close of Townsend's case in-chief, the trial court directed a verdict in the defendants' favor on the survival count. The jury ultimately returned an $850,000 verdict in Townsend's favor on the wrongful death count. Following unsuccessful post-trial motions by both parties, including a motion for Judgment Notwithstanding the Verdict made by the defendants, this appeal and cross-appeal followed.
The defendants raise two issues on appeal. First, they contend the trial court erred in denying their motions for Judgment Notwithstanding the Verdict because Townsend failed to present any evidence of proximate cause. Second, they contend they are entitled to a new trial because of various trial errors.
Judgment Non Obstante Veredicto - Proximate Cause
The trial court should enter judgment non obstante veredicto, or judgment n.o.v., where "all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967); accord Maple v. Gustafson, 151 Ill. 2d 445, 453, 603 N.E.2d 508 (1992). Judgment n.o.v. will be granted only if plaintiff fails to prove an essential element of negligence, including proximate cause. Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 102, 733 N.E.2d 726 (2000); accord Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 301 (1942); see Borowski v. Von Solbriq, 60 Ill. 2d 418, 424, 328 N.E.2d 301 (1975)(proximate cause is an element of negligence). A motion for judgment n.o.v. presents a question of law which we review de novo. Williams v. Hall, 288 Ill. App. 3d 917, 919, 681 N.E.2d 1037 (1997); see Keen v. Davis, 108 Ill. App. 2d 55, 62, 246 N.E.2d 467 (1969)("in determining the propriety of the granting of a motion for judgment n.o.v., a reviewing court is confronted with a question of law"); but see Johnson v. National Super Markets, Inc., 257 Ill. App. 3d 1011, 1015, 630 N.E.2d 934 (1994)(the reviewing court applies the same judgment n.o.v. standard as the trial court).
Before the trial began, Townsend's attorney informed the court the only malpractice issues concerned Puckett's care in the emergency room. Townsend's issues instruction charged the defendants negligently "failed to order or perform imaging studies in the emergency room, specifically either a flat plate x-ray, an ultrasound or a CT [scan] of the abdomen" or "failed to transfer Debra Puckett to a medical or ICU floor in light of her sepsis."
The defendants contend even if they breached the standard of care, none of the failures asserted by Townsend was a proximate cause of Puckett's death. The defendants direct our attention to Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 691 N.E.2d 1 (1998).
Aguilera visited the Mount Sinai Hospital emergency room with complaints of numbness on the left side of his body. Shortly after he was admitted to the hospital, he began to suffer seizures. A CT scan revealed a massive cerebral hemorrhage. Aguilera lapsed into a coma and died three days later.
In a wrongful death medical malpractice action against the hospital, the plaintiff, Aguilera's wife, offered testimony from two expert witnesses. Both experts testified the emergency room physician should have ordered an immediate CT scan, given Aguilera's signs and symptoms.
The plaintiff's emergency medicine expert testified a prompt CT scan would have permitted the medical or surgical intervention that may have saved Aguilera's life. According to the emergency medicine expert, Aguilera had a greater-than-50% chance of survival if "appropriately diagnosed." Aguilera, 293 Ill. App. 3d at 969. The emergency medicine expert asserted the delayed CT scan was "definitely related" to Aguilera's death. Aguilera, 293 Ill. App. 3d at 969. But, assuming Aguilera received a prompt CT scan, the emergency medicine expert acknowledged he would have deferred to a neurosurgeon to decide whether surgical intervention was appropriate. The plaintiff's neurology expert testified an early CT scan would have permitted effective treatment for Aguilera, neurosurgery to stop the thalamic bleed. According to the neurology expert, Aguilera had a 75-80% chance of survival with prompt treatment. But the neurology expert also acknowledged he would have consulted, if not deferred to, a neurosurgeon on the appropriateness of surgical intervention. The trial court entered judgment notwithstanding the verdict for the hospital.
On appeal, we reviewed Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202 (1997) and its view of the "lost chance" doctrine. Holton held the "lost chance" doctrine is not a separate theory of recovery in Illinois, but is a concept which enters into a proximate cause analysis where the plaintiff alleges the defendant's negligently delayed diagnosis lessened the effectiveness of its treatment. Aguilera, 293 Ill. App. 3d at 973 (quoting Holton, 176 Ill. 2d at 119). We agreed with the hospital: judgment n.o.v. is appropriate in a wrongful death case "where the evidence reveals that no medical treatment was available for the decedent's fatal illness." Aguilera, 293 Ill. App. 3d at 974.
We examined the plaintiff's expert testimony and concluded: "Without supporting testimony from a neurosurgeon, plaintiff's experts' testimony was insufficient to show that neurosurgery, much less effective neurosurgery, should have occurred absent defendants' negligence.
*** The absence of expert testimony that, under the appropriate standard of care, an analysis of an earlier CT scan would have led to surgical intervention or other treatment that may have contributed to the decedent's recovery creates a gap in the evidence of proximate cause fatal to plaintiff's case. *** Plaintiff failed to offer evidence to a reasonable degree of medical certainty that the alleged negligent delay in administering a CT scan lessened the effectiveness of the medical treatment given to Aguilera." Aguilera, 293 Ill. App. 3d at 975.
This case, like Aguilera, turns on whether the plaintiff's experts left behind a proximate causation gap, bearing in mind "the question of whether defendant's negligent treatment is a proximate cause of plaintiff's ultimate injury is ordinarily one of fact for the jury." Holton, 176 Ill. 2d at 107; see also Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 103-04, 733 N.E.2d 726 (2000).
To answer that outcome determinative question, we turn to the testimony from Townsend's experts, Dr. Daniel Hancock (Dr. Hancock) and Dr. Bruce Leslie (Dr. Leslie).
Dr. Leslie testified Dr. Chaney deviated from the standard of care by failing to order imaging tests, which would have indicated whether Puckett had a urinary tract obstruction, and by transferring Puckett to the neurology floor, not the intensive care unit. These deviations contributed to Puckett's death.
According to Dr. Leslie, a urinary tract obstruction must be relieved: "Well, the bottom line is that if a patient has [a kidney infection] behind an obstruction, you can give industrial doses of antibiotics and you won't cure the infection. They will die of the infection." Townsend's attorney asked Dr. Leslie about Puckett's chance of survival:
"Q: Doctor, do you have an opinion as to Debra Puckett's chances of survival without the obstruction being relieved?