Appeal from Circuit Court of Macon County No. 96L6 Honorable James A. Hendrian, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Steigmann
In January 1996, plaintiff, Robert L. Snelson, sued defendants, Dr. Donald Kamm and St. Mary's Hospital of Decatur (St. Mary's), for medical malpractice. Following a June 1999 jury trial, the jury returned a verdict in favor of Snelson and against Kamm and St. Mary's and awarded Snelson $7 million.
Following an April 2000 hearing on defendants' posttrial motions, the trial court entered an order (1) granting St. Mary's motion for judgment notwithstanding the verdict (judgment n.o.v.) and (2) setting aside the $7 million damage award against Kamm and granting a retrial on the issue of damages.
This court granted separate petitions for leave to appeal by Snelson (Nos. 4-00-0418, 4-00-0432) and Kamm (No. 4-00-0419). See 166 Ill. 2d R. 306(a)(1). On appeal, Snelson argues that the trial court erred by (1) granting Kamm a new trial on the issue of damages and (2) granting St. Mary's motion for judgment n.o.v. Kamm argues in his appeal that (1) the trial court erred by (a) allowing the testimony of Snelson's medical expert because it lacked foundation, (b) ruling that Kamm could not cross-examine Snelson's medical expert regarding his potential bias, (c) giving certain instructions to the jury, and (d) admitting into evidence all of Snelson's medical bills incurred since the unsuccessful aortogram; (2) the jury (a) considered extraneous information and (b) demonstrated impropriety in conducting its duties; and (3) the jury's verdict was against the manifest weight of the evidence. We affirm and remand with directions for a new trial on the issue of damages.
In Snelson's January 1996 complaint, he alleged that following an unsuccessful translumbar aortogram that another physician had performed on him on March 2, 1994, Kamm negligently (1) failed to diagnose "the acute mesenteric occlusion and infarction," (2) delayed diagnosis of the acute mesenteric occlusion and infarction, (3) failed to perform sufficient diagnostic tests immediately following the unsuccessful aortogram, despite "incidents of abdominal pain," (4) failed to monitor Snelson closely, and (5) failed to perform serial physical examinations of Snelson. Snelson also alleged that St. Mary's, through its nursing staff, negligently (1) failed to inform Kamm of Snelson's symptoms immediately following the unsuccessful aortogram, (2) failed to adequately monitor Snelson, and (3) failed to perform sufficient diagnostic tests immediately following the unsuccessful procedure, despite incidents of abdominal pain.
At the June 1999 jury trial, the evidence showed the following.
A. Snelson's Hospitalization
In March 1994, Snelson, who was then 58 years old, was suffering from severe peripheral vascular insufficiency (poor blood circulation) in his legs, which was caused by arteriosclerosis (commonly referred to as hardening of the arteries). Snelson's family doctor had referred him to Kamm, a general surgeon, for treatment. Kamm suggested that Snelson undergo an aortogram to determine the exact locations of the arterial blockages. On March 2, 1994, Snelson and his son, James, arrived at St. Mary's so that Snelson could undergo a translumbar aortogram, a procedure in which dye is introduced through the patient's back into the aorta to study the aorta itself and its branches. (An aortogram is also referred to as an arteriogram.) Possible complications from such a procedure include (1) bleeding from the puncture site; (2) the breaking off of a clot from the aorta, which then blocks a blood vessel; (3) an allergic reaction to the dye; (4) infection; and (5) kidney damage.
Dr. Carlos Capati, a radiologist, testified that around noon on March 2, he attempted to perform a translumbar aortogram on Snelson. However, he had difficulty navigating the guide wire into the thoracic aorta, and it appeared that the guide wire was instead going into the superior mesenteric artery, which supplies blood to the intestine. Capati took out the translumbar needle and the guide wire and attempted to reinsert the guide wire into the aorta; however, he again had problems doing so. During the second attempt, Snelson's blood pressure began dropping and he complained of abdominal and back pain. Capati stopped the procedure and Snelson's blood pressure returned to normal. Snelson then expressed an urge to have a bowel movement and a portable commode was brought in. Capati examined Snelson's stool but did not see any discoloration. At that point, Capati decided to stop the aortogram. He then informed Kamm that he had been unable to complete the aortogram and Snelson was complaining of back and abdominal pain.
Snelson's son, James, testified that following the unsuccessful aortogram, he saw his father being brought back to his hospital room on a stretcher. James stated that his father was "screaming and yelling." Once in Snelson's room, James assisted the nurses in getting his father back in bed. At that point, Snelson began complaining about "a lot of pain in his stomach." He also complained of "pressure" in his stomach and the need to urinate. Snelson asked that the nurses insert a catheter to empty his bladder, and around 3 or 3:30 p.m. they did so. James left the hospital that afternoon before Kamm checked in on Snelson. Around 8 p.m., James spoke with his father, who was still complaining of pain and talking like he "didn't know who, what, when or where was going on."
None of the nurses who testified at the trial had any independent memory of the events of March 2 or 3, 1994. However, the nurses on staff during that time recorded notes on Snelson's condition. Those notes indicated that, following the unsuccessful aortogram, Snelson returned to his hospital room around 12:40 p.m. At that time, he was complaining of abdominal pain and cramping and insisted that he needed to have a bowel movement. A 12:44 p.m. shift assessment showed that Snelson was alert and complaining of pain that he rated as a "7" on a scale of 1 to 10. At 12:45 p.m., he had a large bowel movement and continued to complain of severe pain across the middle of his abdomen with pain radiating to his back. At that point, the nurses notified Kamm of Snelson's condition. Kamm gave verbal orders that Snelson receive a hemoglobin and hematocrit test and be given pain medication (50 milligrams (mg) of Demerol by muscular injection) every three hours as needed. Kamm also ordered that Snelson's vital signs be taken every 15 minutes for two hours and then hourly thereafter.
From 12:45 p.m. until 2:30 p.m. on March 2, Snelson's vital signs were as follows: (1) his temperature stayed below normal, (2) his respirations were normal, (3) his pulse rose from 80 to 164 during the first hour then dropped to 88 during the second hour, and (4) his blood pressure varied from a low of 120/70 at 1 p.m. to a high of 164/76 at 2:30 p.m.
At 3 p.m., Snelson's temperature had risen slightly to 95.6 degrees Fahrenheit and his blood pressure had dropped to 160/80. The nurses' flow sheet indicated that a nurse inserted a catheter in Snelson's bladder around 3 p.m. At 3:35 p.m., a second shift assessment indicated that Snelson's bowel sounds were normal, but he continued to complain of abdominal pain. At 4 p.m., Snelson's temperature was 96.2 degrees, his pulse was 116, and his blood pressure was 186/98. Around that same time, he had a bowel movement that appeared to contain bloody mucous. The nurses paged Kamm, who was in surgery, and left a message. At 4:30 p.m., Kamm telephoned and spoke with a nurse about Snelson's condition. Kamm testified that at that point, he believed that the bloody bowel movement was due to a mild hemorrhoid. Kamm told the nurse that he would examine Snelson as soon as he could.
At 6 p.m., Kamm arrived at St. Mary's and examined Snelson. At that time, the nurses' notes, shift assessment, flow sheets, and vital sign records were all available to Kamm. During the examination, Kamm noted that Snelson was complaining of mid-abdominal pain and had difficulty urinating. Kamm found that Snelson's lower abdomen was tender and distended, that his bowel sounds were hypoactive (less than normal), and that he had passed several small blood-tinged stools. In his notes, Kamm recorded a concern "about mesenteric insufficiency or thrombo-embolus with ischemia" (essentially, a blockage of blood flow to the intestine). Kamm testified, however, that at that time, he believed that the most likely cause of Snelson's pain was bleeding into his retroperitoneal area as a result of his aorta being punctured during the unsuccessful aortogram.
Kamm further testified that, based on his 6 p.m. assessment, he believed Snelson's condition had stabilized "considerably" from earlier in the afternoon. He thus ordered that the nurses check Snelson's vital signs only every four hours. Because he was concerned about Snelson's abdominal distention, he ordered that Snelson have no food or liquids by mouth. He also increased Snelson's pain medication from 50 mg to 100 mg of Demerol every four hours as needed, ordered that a catheter be inserted, and ordered some laboratory work for the next morning. Kamm thought the catheter was inserted after his 6 p.m. examination of Snelson, but he acknowledged that it could have been ordered before he arrived at St. Mary's as part of a routine postprocedure order. Kamm also stated that the catheter "caused considerable relief" in Snelson's discomfort. Kamm then left St. Mary's for the evening.
Following Kamm's examination of Snelson, Snelson was observed by the nurses at least every hour. According to the nurses' notes, he was sleeping most of the time between 6:30 p.m. and midnight on March 2, although it was noted that he had a bowel movement and received Demerol at 7 p.m. and was awake at 10 p.m. and back asleep at 11 p.m. No documentation exists showing that Snelson's vital signs were taken between 4 p.m. and midnight. Kamm conferred with the nurses before he went to bed around 10 p.m. and was advised that Snelson was stable and nothing had happened worth commenting on. At midnight, Snelson's temperature was 98.3 degrees, his pulse was 128, and his blood pressure was 190/100. The section in the midnight shift assessment concerning level of pain was left blank; however, at 12:45 a.m., on March 3, Snelson received 100 mg. of Demerol. At 4 a.m., Snelson's temperature was 99.3 degrees, his pulse was 124, and his blood pressure was 154/90.
Kamm next saw Snelson between 6 and 6:30 a.m. on March 3. At that time, Snelson had an abnormally high white blood cell count. Over the next four hours, a computerized tomography (CT) scan and X rays were taken, which showed the presence of air in Snelson's small intestine. Capati testified that the test results were consistent with "small and large bowel infarction," which meant that parts of Snelson's small and large bowel loops were gangrenous or dead. He also explained that the most likely cause of that condition was "acute embolism and thrombosis involving the superior mesenteric artery," which meant that either an embolism (a clot or plaque that moves within a blood vessel) or a thrombosis (a plaque or blood clot "that has been in there" and gradually causes blockage) had blocked the superior mesenteric artery. Capati opined that the unsuccessful translumbar aortogram caused the death of portions of Snelson's intestine.
Later that morning, Kamm performed exploratory abdominal surgery on Snelson and found that almost all of his small intestine and the right half of his large intestine were dead due to lack of blood circulation to the area. Kamm removed about 95% of Snelson's small intestine.
Kamm also testified that the nurses had adequately observed Snelson and reported to him everything that he needed to know about Snelson's condition following the unsuccessful arteriogram. He further stated that, if he had wanted to perform surgery sooner, he would have; however, he did not think it was indicated.
Dr. James Sarnelle, Snelson's medical expert, testified that he is a general and vascular surgeon and is familiar with the translumbar arteriogram procedure as well as with intestinal surgery. Sarnelle opined that, in Snelson's case, a blood clot had blocked the mesenteric artery during the unsuccessful arteriogram.
Sarnelle stated that he was familiar with the national standard of care for a reasonably well-qualified surgeon as that standard related to a patient in Snelson's condition on March 2, 1994. Sarnelle opined that Kamm breached the standard of care in treating Snelson following the unsuccessful arteriogram. He elaborated that on March 2, Kamm "did not take any action which was necessary to save [Snelson's] small bowel." He further stated that "what [Snelson] really needed was an operation to restore the circulation" (revascularization surgery). Sarnelle based his opinion that Kamm should have performed surgery on March 2 on the "classic" signs and symptoms of ischemia (blockage of the blood supply) of the small intestine that existed during Kamm's 6 p.m. examination of Snelson. In that regard, he testified that Snelson "has all the signs and symptoms of mesenteric ischemia. In fact, [Kamm] even mentions it in his note at 6 o'clock that he is concerned about ischemia or thrombosis and yet he does nothing, just says will watch closely." According to Sarnelle, the following signs and symptoms should have alerted Kamm to the mesenteric ischemia: (1) Capati's indication that during the unsuccessful translumbar arteriogram the guide line went into the superior mesenteric artery; (2) Snelson's drop in blood pressure and abdominal pain during the unsuccessful procedure; (3) Snelson's need to have an immediate bowel movement during the arteriogram; (4) the bloody bowel movements following the arteriogram; (5) abdominal pain that was severe enough for Kamm to increase the Demerol from 50 to 100 mg.; and (6) the distention and tenderness of Snelson's lower abdomen during Kamm's 6 p.m. examination of Snelson on March 2.
According to Sarnelle, a small window of opportunity existed to prevent the permanent loss of Snelson's intestine. At 6 p.m. on March 2, Snelson's vital signs indicated that he was stable enough to have surgery. Sarnelle opined that had revascularization surgery been performed in a timely fashion on March 2, a large portion of Snelson's intestine could have been saved and Snelson would not need to depend on intravenous supplemental nutrition, as Snelson's condition now requires. The latest time that Snelson's intestine could have been saved was around midnight on March 2. Sarnelle based his time frame opinions on the clinical data contained in Snelson's medical records, such as the onset and severity of Snelson's pain, his vital signs, and the appearance of bloody bowel movements.
Sarnelle acknowledged that generally acute mesenteric ischemia is very difficult to diagnose because the typical patient has an onset of abdominal pain with no clear history of the pain's causation. In addition, the typical patient is often elderly and has trouble communicating. Sarnelle stated that Snelson's case was different because, unlike the typical patient who is admitted to the hospital several hours after the onset of pain, (1) Snelson was in the hospital at the time the ischemia began; (2) the problems that developed during the unsuccessful arteriogram involved the superior mesenteric artery; and (3) Snelson developed signs and symptoms quickly and did not just show up at the hospital with "some obscure things" going on.
Sarnelle also opined that Kamm breached the appropriate standard of care by ordering pain medication for Snelson because pain medications may mask a patient's symptoms and make ischemia more difficult to diagnose.
Sarnelle had no opinion regarding the conduct of St. Mary's nursing staff.
During cross-examination, Sarnelle acknowledged that depending on the cause of mesenteric ischemia, it can sometimes take days for a well-qualified surgeon to diagnose the condition. He also acknowledged that the medical literature does not (1) differentiate between arteriogram-induced mesenteric ischemia and other types or (2) set out certain symptoms as "classic." Sarnelle stated that the possibility that Snelson's intestine did not "die" until 6 or 7 a.m. on March 3 was "extremely remote." Sarnelle has performed intestinal revascularization surgery twice in his career. One of those patients lived and the other died. The mortality rate for such a surgery is over 50%. Sarnelle further stated that he has been involved in 200 medical malpractice cases as a consulting expert and witness. In all of those cases, he worked for the plaintiffs.
Grace McCallum, Snelson's nursing expert, testified that nurses utilize the "nursing process," which is a critical thinking process that defines the standard of care that a nurse should follow. McCallum opined that the nursing process was not followed by St. Mary's nursing staff on March 2, 1994. This failure to follow the nursing process was evidenced by the following: (1) the failure to initiate a nursing care plan for Snelson; (2) the failure to consult with another physician after the nurses found out that Kamm was in surgery at 4 p.m. on March 2; (3) the failure to request a physician after Snelson had a bloody bowel movement at 4 p.m. on March 2; (4) the failure to perform another assessment following the bloody bowel movement; (5) the failure to perform a follow-up evaluation on the effectiveness of Demerol; (6) the lack of nursing notes regarding Kamm's March 2 examination; (7) the failure to perform all ordered vital signs during the evening of March 2; and (8) the failure to call Kamm after checking Snelson's vital signs around midnight on March 2. McCallum opined that the failure to follow the nursing process increases the likelihood of an unfavorable outcome. However, she had no opinion about what ultimately caused Snelson's injury and stated that she would leave that for "medicine to decide."
Dr. William Pyle, one of Kamm's medical experts, testified that mesenteric ischemia is difficult to diagnose and the ultimate mortality rate is "in excess of 90 percent." Pyle opined that Kamm met the standard of care in his treatment of Snelson on March 2 and 3, 1994. Pyle also opined that "there weren't enough findings or symptoms to justify surgery" on March 2. Pyle further opined that revascularization surgery was not an option because the mesenteric ischemia was most likely caused by a dissection of the artery, as opposed to a sudden blockage due to a blood clot. In addition, he opined that regardless of what caused the ischemia and regardless of when the revascularization surgery occurred, Snelson's intestine most likely could not have been saved.
Dr. Philip Donahue, another of Kamm's medical experts, opined that Kamm did not breach the standard of care by failing to diagnose mesenteric ischemia or failing to perform revascu-larization surgery on March 2, 1994. He reasoned that earlier surgery was not warranted by the medical evidence and would not have made any difference in Snelson's outcome. Donahue also stated that the "classic" signs of ischemia about which Sarnelle testified were not "classic of anything." Instead, they "were just nonspecific signs." Donahue further opined that the death of Snelson's intestine did not occur until sometime around 6 a.m. on March 3.
Mary Delaney, St. Mary's nursing expert, testified that the nurses did not violate the standard of care in treating or monitoring Snelson.
Dr. Robert Newlin, Snelson's treating physician, testified that as a result of the March 3, 1994, surgery, Snelson suffers from "short bowel syndrome." Because Snelson no longer has most of his small intestine, he must rely on hyperalimentation to provide him with nutrients. (Hyperalimentation is the intravenous infusion of a solution that contains sufficient nutrients.) The solution is infused into one of Snelson's veins in his upper chest via a catheter. The catheter is a foreign body and bacteria can easily grow on it. Snelson has suffered several infections of his catheter site, some of which required hospitalization. Newlin opined that Snelson will require hyperalimentation for the rest of his life. Newlin estimated that Snelson could live another 10 years. He acknowledged that Snelson's pre-existing health problems, including diabetes, high blood pressure, arteriosclerosis, arthritis, and a history of smoking, would considerably shorten Snelson's life expectancy by themselves.
Snelson testified that he must be attached to the hyperalimentation device for 12 hours each day. Sometimes the nutrient solution causes him pain as it enters through the catheter, and he requires help to maintain the catheter and the catheter site. Although Snelson can eat regular food, the portions must be small. He suffers from chronic diarrhea, and he must use the bathroom 15 to 20 times a day. Because of the hyperalimentation, he decided not to return to work and took early retirement. Snelson also presented a medical bill summary, totaling $595,766.35 and prior income tax returns from 1990 through 1994, showing total wages ranging from $16,970 to $40,838.04.
Snelson acknowledged that even before the March 3, 1994, surgery, the arteriosclerosis made it hard to walk and he had to use a wheelchair. Snelson stated that he still hunts, fishes, and travels to Minnesota to fish and to Indiana to see his daughter. He also acknowledged that his restricted ability to engage in daily activities was largely attributable to his pre-existing physical problems.
On this evidence, the jury returned a verdict in Snelson's favor and against both Kamm and St. Mary's and awarded $7 million. Because the completed verdict form contained only the total damage award, the trial court instructed the jury to return to deliberations and itemize the verdict. Shortly thereafter, the jury returned with a verdict in the same amount, itemized as follows: (1) $600,000 for past medical expenses; (2) $1.1 million for future medical expenses; (3) $3 million for pain and suffering; (4) $2 million for loss of normal life; (5) $80,000 for lost earnings; and (6) $220,000 for disfigurement.
As earlier stated, following an April 2000 hearing on defendants' posttrial motions, the trial court entered an order (1) granting St. Mary's motion for judgment n.o.v. and (2) granting a retrial on the issue of damages. This appeal followed.
Snelson first argues that the trial court erred by granting St. Mary's motion for judgment n.o.v. because sufficient evidence existed that the actions of St. Mary's nursing staff proximately caused his injuries. We disagree.
A judgment n.o.v. is properly entered in those limited cases where "all of 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, 513-14 (1967). We review de novo a trial court's decision on a motion for judgment n.o.v. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999).
"In a medical malpractice case, Illinois mandates a plaintiff prove (1) the proper standard of care by which to measure the defendant's conduct, (2) a negligent breach of the standard of care, and (3) resulting injury proximately caused by the defendant's lack of skill or care." Higgens v. House, 288 Ill. App. 3d 543, 546, 680 N.E.2d 1089, 1092 (1997). Except in very simple cases, the issue of causation in a medical malpractice case is beyond the common knowledge of laypersons. See Addison v. Whittenberg, 124 Ill. 2d 287, 297, 529 N.E.2d 552, 556 (1988) (noting that examples of this exception include cases in which "the treatment is so common, or the act so grossly negligent, that a layman would be able to make a proper evaluation of the challenged conduct"). Thus, a plaintiff generally must present "expert testimony to establish the applicable standard of care, a deviation from the standard, and the resulting injury to the plaintiff." Higgens, 288 Ill. App. 3d at 546, 680 N.E.2d at 1092.
In Gill v. Foster, 157 Ill. 2d 304, 310-11, 626 N.E.2d 190, 193 (1993), the supreme court affirmed summary judgment for the defendant hospital where a discharge nurse's failure to notify an attending physician of the plaintiff's complaints of chest pain was not the proximate cause of plaintiff's injury because the doctor already knew of the pain and thought it was a normal byproduct of surgery. The court concluded that "even assuming the nurse had breached a duty to inform the treating physician of the patient's complaint, this breach did not proximately cause the delay in the correct diagnosis of the plaintiff's condition." Gill, 157 Ill. 2d at 311, 626 N.E.2d at 193.
In Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 18-19, 724 N.E.2d 115, 124 (1999), the appellate court affirmed the trial court's dismissal of the defendant hospital from the plaintiff's action for wrongful death of a stillborn infant because the nurses' failure to earlier notify the physician of certain abnormalities did not cause the delay in performing a cesarean section. In reaching that decision, the Seef court stated, in pertinent part, as follows:
"Assuming arguendo that the nurses had notified [the physician] several hours earlier, [the physician] admitted that he would have misinterpreted the data on the monitor strips in the same way. *** By his own admission, the nurses' failure to notify [him] earlier made no difference in this case." Seef, 311 Ill. App. 3d at 17, 724 N.E.2d at 122-23.
Similarly, in this case, the evidence showed that the failure of St. Mary's nurses to notify Kamm about Snelson's symptoms and vital signs did not delay Kamm's diagnosis of the mesenteric ischemia or his surgical intervention. In that regard, Kamm testified that (1) by 6 p.m. on March 2, 1994, he was aware that Snelson's condition could possibly be mesenteric ischemia; (2) the fact that the nursing staff did not take Snelson's vital signs at 10 p.m. on March 2, did not affect his ability to treat Snelson; (3) if he had wanted to do surgery sooner, he would have; however, he did not think it was indicated; and (4) the nurses had adequately observed Snelson and reported to Kamm everything that he needed to know to treat Snelson. Based on Kamm's testimony, the nurses did not have any information which, if communicated to Kamm, would have changed his diagnosis or treatment of Snelson.
In the cases upon which Snelson relies, Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202 (1997), and Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 733 N.E.2d 726 (2000), evidence was presented showing that if the nurses had communicated specific information to the patient's physician, the physician would have acted differently. See Holton, 176 Ill. 2d at 109, 679 N.E.2d at 1208 ("there is testimony in the instant case that the doctors would have undertaken a different course of treatment had they been accurately and promptly apprised of their patient's progressive paresis"); Suttle, 315 Ill. App. 3d at 104, 733 N.E.2d at 732-33 ("In the instant case, there is testimony that [the physician] diagnosed [the patient] as suffering from respiratory distress syndrome, rather than hypovolemic shock, because he was unaware of [the patient's] velamentous insertion" (emphasis in original); also noting that the physician testified that if he had known of the patient's low blood pressure earlier, he would have called a transplant team).
Despite the lack of such evidence in this case, Snelson contends that the nurses' deviations from the standard of care--by themselves--comprise sufficient evidence that those deviations were a proximate cause of his injuries. We disagree.
As earlier discussed, a medical malpractice plaintiff must present expert testimony to establish the standard of care and that its breach was the cause of the plaintiff's injury. Snelson did not provide the requisite proximate causation testimony to link the nurses' deviations from the standard of care to his injuries. Snelson's nursing expert, McCallum, could not testify regarding proximate cause since she was not a medical expert (see Seef, 311 Ill. App. 3d at 20-21, 724 N.E.2d at 125). Indeed, McCallum acknowledged that she did not have the medical expertise to form an opinion regarding proximate causation. Even assuming McCallum qualified as a medical expert, her vague assertions that failure to follow steps in the nursing process "increases the likelihood" of an unfavorable outcome was insufficient to establish proximate causation. ...