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Sunderman v. Agarwal

June 18, 2001

ROBERT SUNDERMAN, PLAINTIFF-APPELLANT,
v.
MAHESH AGARWAL, DEFENDANT
(HWAJA I. RHEE, U. KHIN, AND WAUKEGAN PATHOLOGY ASSOCIATES, S.C., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Lake County. No. 99-L-165 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

Plaintiff, Robert Sunderman, special administrator of the estate of Janet Sunderman, appeals from the circuit court of Lake County's order granting summary judgment in favor of defendants Hwaja I. Rhee, M.D., U. Khin, M.D., and Waukegan Pathology Associates, S.C. (collectively, pathology defendants). Plaintiff's cause of action against another defendant, Mahesh Agarwal, M.D., remains. The trial court ruled pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal of the final judgment in favor of the pathology defendants. Plaintiff contends that the trial court erroneously determined that a causal connection was lacking between the pathology defendants' alleged negligence and the injuries of the decedent, Janet Sunderman (Janet).

The second amended complaint alleged that in April 1997 Janet saw Dr. Agarwal, a pulmonologist, for diagnosis and treatment of a suspected mass in her right lung. Dr. Agarwal performed a biopsy of the mass in May 1997. The second amended complaint further alleged that defendant Rhee was present when Dr. Agarwal performed the biopsy. Defendants Rhee and Khin examined the biopsy specimen and prepared a report which, according to plaintiff, erroneously interpreted the specimen as negative for malignancy. In March 1998, Janet was diagnosed with terminal lung cancer, which had metastasized to her bones. She died on June 10, 2000. Plaintiff's cause of action seeks damages for the delay in the diagnosis and treatment of Janet's cancer occasioned by the pathology defendants' allegedly erroneous report.

The second amended complaint alleged that the pathology defendants were negligent because they (1) "erroneously interpreted the microscopic examination of the material removed by biopsy from [Janet's] lung as negative for malignancy"; and (2) "failed to make a pathological diagnosis of adenocarcinoma." Although not set forth in the second amended complaint, plaintiff also contends that Dr. Rhee was negligent in failing to ensure that Dr. Agarwal obtained sufficient cellular material during the biopsy procedure to allow the pathologists to make a conclusive diagnosis. The diagnosis set forth in the pathologists' report stated:

"Scant cellular material with a few atypical epithelial cells inconclusive for malignancy (please see 'Comment' above)."

The "Comment" section of the report stated:

"A few atypical epithelial cells seen in the scant cellular material are inconclusive for malignancy. The possibility of malignancy cannot be completely excluded based on the scant cellular material submitted. Correlation with physical findings and further diagnostic workup would be advisable. The slides are seen in consultation with Dr. U. Khin."

In her evidence deposition, Janet testified that when she met with Dr. Agarwal following her May 1997 biopsy he told her that she did not have cancer and her options were to come back in three months for a CT scan, undergo a bronchoscopy, or have the mass removed. She testified that Dr. Agarwal did not read to her the portion of the pathology report that indicated that the possibility of malignancy could not be completely excluded. Janet testified that if she had heard that portion of the report she would have asked Dr. Agarwal to immediately perform additional tests or surgery.

Dr. Agarwal testified in his discovery deposition that he felt the biopsy report strongly indicated that Janet had a malignant mass in her lung. Dr. Agarwal confirmed that he gave Janet three treatment options. Contrary to Janet's testimony, however, Dr. Agarwal testified that he recommended surgery to remove the mass. Dr. Agarwal stated that he gave Janet options rather than insisting on surgery because he felt that all of the options should be discussed and the patient should participate in the decision-making process.

The pathology defendants filed motions for summary judgment in which they argued that, based on the testimony of Janet and Dr. Agarwal, there was no genuine issue of material fact as to whether the pathology report was a proximate cause of the delay in diagnosing and treating Janet's cancer. The trial court granted the pathology defendants' motions for summary judgment, and this appeal ensued.

Summary judgment is appropriate when the pleadings, depositions, admissions on file, and affidavits, if any, demonstrate that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998). A court should not grant summary judgment unless the right of the moving party is clear and free from doubt. Gauthier v. Westfall, 266 Ill. App. 3d 213, 219 (1994). When ruling on a motion for summary judgment, courts should construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the respondent. Gauthier, 266 Ill. App. 3d at 219. While the nonmoving party need not prove his case at the summary judgment stage, he must present a factual basis that would arguably entitle him to a judgment. Gauthier, 266 Ill. App. 3d at 219. If the nonmoving party cannot establish an essential element of his cause of action, summary judgment is proper. Gauthier, 266 Ill. App. 3d at 220. Our review of an order granting summary judgment is de novo. Duran v. Cullinan, 286 Ill. App. 3d 1005, 1010 (1997).

A plaintiff in a medical malpractice case must prove the following elements: (1) the standard of care against which the medical professional's conduct must be measured; (2) the defendant's negligent failure to comply with that standard; and (3) that the defendant's negligence proximately caused the injuries for which the plaintiff seeks redress. Duran, 286 Ill. App. 3d at 1010. In the case before us, the pathology defendants argue that any alleged negligence in obtaining the biopsy specimen or interpreting that specimen did not cause the delay in diagnosing Janet's cancer. We are mindful that proximate cause is ordinarily a factual question for a jury to decide. However, when there is no material issue of fact or only one conclusion is clearly evident, proximate cause may be decided as a matter of law. Williams v. University of Chicago Hospitals, 179 Ill. 2d 80, 88 (1997).

After a careful review of the record and the relevant authority, we agree that summary judgment was proper. Even if we assume that the pathology defendants breached the standard of care in interpreting the biopsy specimen, the testimony of both Janet and Dr. Agarwal establishes that the breach did not proximately cause the delay in diagnosis. Dr. Agarwal testified that after reviewing the biopsy report he "strongly felt that [Janet] had [a] malignant tumor in her lung." When asked why he gave Janet the options of waiting three months for a repeat CT scan or undergoing a bronchoscopy rather than insisting on immediate surgery, Dr. Agarwal responded that "all the options should be discussed" and the patient should participate in the decision making. Dr. Agarwal did not testify that his treatment of Janet would have been any different if the biopsy report had specifically stated that the mass was malignant. On the contrary, Dr. Agarwal believed, based on the report, that the mass was malignant, and he suggested treatment options based on that belief. Consequently, neither the pathology report nor the biopsy procedure proximately caused the delay in diagnosing and treating Janet's cancer.

This case is analogous to Gill v. Foster, 157 Ill. 2d 304 (1993), and Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1999). In Gill, the supreme court held that the defendant hospital was entitled to summary judgment because the plaintiff failed to establish that a hospital nurse's alleged negligence proximately caused the plaintiff's injuries. Gill, 157 Ill. 2d at 311. The nurse in Gill failed to tell the plaintiff's doctor that the plaintiff had been complaining of chest pain. Gill, 157 Ill. 2d at 309. However, the defendant doctor's progress notes indicated that the plaintiff had advised him that he was experiencing chest pain. Gill, 157 Ill. 2d at 309-10. Because the doctor was already aware of ...


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