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Charles Perkey, Administrator of the Estate of Leanne Perkey, Deceased v. Michelle Portes-Jarol

April 17, 2013


Appeal from the Circuit Court of Lake County. No. 08-L-52 Honorable Margaret J. Mullen, Judge, Presiding.

The opinion of the court was delivered by: Justice Spence

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.


¶ 1 Plaintiff, Charles Perkey, administrator of the estate of Leanne Perkey, deceased, brought a wrongful death/survival action, based on alleged medical malpractice, against defendants, Michelle Portes-Jarol, special administrator of the estate of Dr. Steven A. Portes, deceased, and Associated Physicians of Libertyville, S.C., d/b/a Winchester Medical Group. The jury returned a verdict of $600,000 in plaintiff's favor, with $310,000 of that amount for medical expenses. Defendants seek reversal on appeal, arguing that: (1) plaintiff's standard-of-care expert based her opinions on a legally improper standard of care; (2) plaintiff failed to present sufficient evidence on the issue of proximate causation; (3) the trial court erred in giving the jury the 2006 version of a pattern jury instruction, which did not correctly state the law; and (4) the trial court erred in denying defendants' motion to reduce the judgment under section 2-1205 of the Code of Civil Procedure (735 ILCS 5/2-1205 (West 2010)). We agree with defendants' fourth argument and therefore affirm in part, reverse in part, and remand the cause.


¶ 3 A. Leanne's Medical History

¶ 4 On February 13, 2001, Leanne visited the office of Dr. Portes. She was seen that day by physician's assistant Patricia Graham. Leanne said that she had back pain that kept her awake at night and that she could not alleviate the pain with over-the-counter medication. Leanne thought it might be something to do with her new workout routine. Graham ordered blood work, urinalysis, and an X-ray of Leanne's abdomen. Those tests were normal. Graham also ordered an abdominal CT scan to rule out the possibility of kidney stones as the pain's source.

¶ 5 Leanne had the CT scan the next day at Gurnee Radiology Center. Dr. Judy Huang, a radiologist, interpreted the CT scan. A copy of the radiology report was forwarded to Dr. Portes's office. The report, which was admitted into evidence, stated that "the pancreatic duct is dilated as seen along its body extending to the head." It also stated: "Dilation of the pancreatic duct. Correlation with clinical and laboratory findings is recommended with additional evaluation with ERCP [endoscopic retrograde cholangiopancreatography] to assess for either stricture or tumor causing this finding."

¶ 6 Leanne testified in an evidence deposition as follows. She returned to Dr. Portes's office on February 15, 2001, to discuss the results. She met with Dr. Portes that day. Dr. Portes examined her "briefly," poking around on her back until he found the spot that was bothering her. Dr. Portes told her that there was "nothing significant" in the CT scan. He did not share any medical records with her or read to her from the radiology report. He did not tell her that her pancreatic duct was wider than it should have been, that the radiologist saw an abnormality in her pancreatic duct, or that she might have a tumor there. Dr. Portes also did not say that the report recommended an ERCP or a referral to a gastroenterologist. She would have remembered any references to "tumor" or "cancer" because both of her parents died from cancer. Instead, Dr. Portes said that he would have additional tests done on blood that had already been drawn. He said that he did not need to see her again unless there were any abnormalities in the additional blood tests. A nurse called about one week later saying that the additional blood tests were normal.

¶ 7 Dr. Portes testified in his evidence deposition as follows. He reviewed the radiologist's report before seeing Leanne. Dr. Huang did not report seeing a tumor in Leanne's pancreas or say that she had cancer. To the contrary, her report said, "A discrete mass in the pancreatic head is not identified." Dr. Portes read to Leanne from the report, including telling her that the widening of the duct could have been caused by a tumor. Leanne did not have any symptoms or complaints consistent with pancreatic cancer (weight loss; fatigue; burning eyes; jaundice; abdominal pain; loss of appetite; nausea; vomiting; diarrhea). Therefore, Dr. Portes ordered amylase and lipase tests to see whether pancreatitis was causing the widening of the duct. They agreed to a "wait and see" approach before doing an ERCP, because that procedure could have complications. Dr. Portes and Leanne agreed that Leanne would call if she had any signs or symptoms, and then Dr. Portes would immediately refer Leanne to a gastroenterologist. For Leanne's muscle soreness, he diagnosed her with a muscle sprain and prescribed Vioxx.

¶ 8 The lab tests were normal, and Leanne was told of those results on February 27, 2001. Leanne reported that she was feeling better. Dr. Portes did not hear from Leanne again.

¶ 9 Leanne's back pain resolved itself after treatment with a chiropractor. In July 2001, she donated one of her kidneys to a friend. In preparation for the donation, she underwent many tests and was evaluated by more than 15 medical professionals. However, she did not have another CT scan of her abdomen.

¶ 10 Leanne felt well until July 2002, when she felt tired and noticed changes in her urine and stool. She saw her gynecologist, Dr. Richard Allen, who ordered blood work. Dr. Allen said that the results were abnormal and immediately referred her to a gastroenterologist, Dr. Perez. Dr. Perez ordered a CT scan, which showed a blockage in her bile duct. He recommended an ERCP, which revealed a tumor. Based on a biopsy of the tumor and her blood test results, he determined that she had pancreatic cancer.

¶ 11 Dr. Perez referred Leanne to Dr. Yale, a surgeon, for a consult. Dr. Yale recommended surgery to remove the cancerous growth and lymph nodes. According to Leanne, it was only after this that she saw the results from the 2001 CT scan for the first time. Leanne had surgery in September 2002. Dr. Yale said that the cancer had metastasized to one of her lymph nodes. He said that she had a 25% chance of surviving five years. After surgery, Leanne had chemotherapy and radiation therapy for six weeks. She was then able to return to work and resume her normal life.

¶ 12 In February 2006, Leanne had fatigue and shortness of breath. Testing revealed terminal cancer in her lung. The cancer was the same type of cancer that was in her pancreas; it had metastasized to her lung. Leanne passed away on March 7, 2007.

¶ 13 B. Trial

¶ 14 Witness testimony began on October 12, 2011. We summarize the testimony below.

¶ 15 1. Dr. Andrew Lowy

¶ 16 Dr. Lowy was a surgical oncologist. He opined for plaintiff that Dr. Huang's description of the 2001 CT scan as showing that the pancreatic duct was dilated up to one centimeter was "very significant," because the duct was four to five times its normal size. The only causes of that condition would be a tumor causing an obstruction, in turn causing the duct to enlarge, or stricture, which is scarring that "narrows the duct and causes it to get enlarged." Stricture could be caused by pancreatitis, which is inflammation of the pancreas, or a congenital defect. Dr. Portes ordered amylase and lipase tests to check for pancreatitis, but those results were normal. Such tests cannot diagnose or rule out pancreatic cancer.

¶ 17 Leanne's 2002 CT scan showed that her pancreatic duct was still markedly dilated. Also, her bile duct and ducts within her liver were now dilated. The type of surgery Leanne underwent, the "Whipple" procedure, was designed to cure the cancer by removing it and the structures around it so that all the cancer cells were removed. Leanne had a cancerous tumor removed from the area of her pancreatic duct. Leanne had chemotherapy and radiation afterward to reduce the risk of recurrence and improve the cure rate by killing undetected cancer cells. In early 2006, Leanne was diagnosed with a recurrence of her pancreatic cancer, in her lung. Cancer cells can travel through the bloodstream and "take up residence in another spot."

¶ 18 Dr. Lowy opined that the cause of the dilation in Leanne's pancreatic duct in 2001 was pancreatic cancer. He believed that, if she had had an ERCP or been referred to a gastroenterologist at that time, the cancer would have been diagnosed. Her treatment at that time would have been the same as it was in 2002.

¶ 19 Dr. Lowy opined that the delay in detecting Leanne's pancreatic cancer from February 2001 to July 2002 was a cause of the recurrence of her cancer in 2006. The delay was therefore also a cause of the medical treatment she received from January 2006 to March 2007 and a cause of the pain, suffering, weakness, lack of appetite, and weight loss she suffered during that time. Further, the delay caused Leanne to lose a chance at a cure of her cancer and was a cause of her death.

¶ 20 Pancreatic cancer staging refers to categorizing the extent of the disease in a patient. Dr. Lowy identified a document showing five-year survival rates for the cancer, depending on its stage. Five years is the cutoff point because, if a patient were disease-free for five years after treatment, the likelihood that he or she would survive to a natural death would be similar to that of a person who never had cancer.

¶ 21 Dr. Lowy explained that Leanne's cancer was a Stage IIB when it was removed, meaning that it had spread to her lymph nodes. Her five-year survival rate at that point was 6%. He opined that, in February 2001, it was likely a Stage IIA, or a Stage I. If it were a Stage IIA as opposed to a Stage IIB, she would have been twice as likely to be cured, at 12% versus 6%. If it were a Stage IA, she was six times more likely to be cured.

¶ 22 On cross-examination, Dr. Lowy agreed that an ERCP had risks, such as perforation, bleeding, infection, and death. He agreed that the first time Leanne exhibited symptoms of her pancreatic cancer was 17 months after she saw Dr. Portes. Dr. Lowy agreed that the survival rate from pancreatic cancer is poor, with about 23% of patients alive 12 months after diagnosis and only 5% alive after 5 years. The cancer is most often diagnosed after the disease has metastasized, generally precluding any hope for a cure. Dr. Lowy agreed that if Leanne had pancreatic cancer in February 2001, which he believed she did, there was greater than a 50% likelihood that it had already metastasized, and even if she had been treated at that time, it was more likely than not that she would have died from the disease.

¶ 23 On redirect, Dr. Lowy testified that pancreatic cancer is curable. In February 2001, Leanne's cancer would have been at an earlier stage and therefore her chances for a cure would have been greater.

¶ 24 2. Dr. Michael Uzer

¶ 25 Dr. Michael Uzer, a gastroenterologist, testified that Dr. Huang's 2001 radiology report described a significant abnormality, that being a "massive" dilation of the entire pancreatic duct, from head to tail. If Leanne had been referred to a reasonable gastroenterologist, he or she would most likely have performed an ERCP, and there would have been a 90% to 95% chance that the tumor would have been discovered. A reasonable gastroenterologist would then have referred Leanne to a surgeon experienced in pancreatic resection for a Whipple operation, just like the treatment Leanne received after her 2002 diagnosis.

¶ 26 Dr. Uzer agreed that there is up to a 10% risk of complications from an ERCP. He further agreed that he had not previously seen a patient who had the same degree of dilation of the pancreatic duct as Leanne and who did not have any other symptoms, problems, or abnormal lab tests. Dr. Uzer agreed that a dilated pancreatic duct could be hereditary or due to stricture.

¶ 27 3. Dr. Judith Rubin

¶ 28 Dr. Judith Rubin, a family practice physician, testified that the standard of care is "the care that the patient would receive in the typical doctor's office, the care that 80 percent of doctors would give to that patient." She agreed that, in assessing the standard of care in this case, she applied the degree of care, knowledge, and skill a reasonably careful family practice physician in Chicago would use in 2001, under like circumstances. The standard of care in Chicago was the same as it was in the rest of the nation.

¶ 29 The cause of a pancreatic duct dilation, like the one seen in Leanne's 2001 CT scan, is like a clog in plumbing that pushes the pressure backward. The cause could be a congenital stricture, a stricture from chronic pancreatitis, a gallbladder stone, or cancer. Leanne's radiology report stated that the pancreatic duct was dilated and that " '[c]orrelation with clinical and laboratory findings is recommended with additional evaluation with ERCP to assess for either stricture or tumor causing this finding.' " A reasonable family practice physician reading the report would equate "tumor" with cancer. The standard of care required Dr. Portes to make an immediate referral to a gastroenterologist to evaluate why the pancreatic duct was three times its normal size and to ensure the earliest possible assessment of any cancer. As Dr. Portes did not make such a referral, he deviated from the standard of care. Even if Dr. Portes's testimony regarding what had happened was true, the standard of care still required him to refer Leanne to a gastroenterologist after he received the normal results of her amylase and lipase test. The standard of care under the circumstances would not allow a reasonable family practice physician to take a "wait and see" approach.

¶ 30 Dr. Rubin did not know of any literature that supported her definition of the standard of care. Dr. Rubin agreed that, other than the dilation, Leanne did not have any signs or symptoms of pancreatic cancer in February 2001. She also agreed that there are potentially severe and life-threatening risks from an ERCP. However, in this case she believed that the benefits of an ERCP would have outweighed the risks.

¶ 31 4. Motion for a Directed Verdict

¶ 32 At the close of plaintiff's case, defendants moved for a directed verdict, arguing that: (1) Dr. Rubin evaluated Dr. Portes's conduct under an improper standard of care, because she stated that the standard was what 80% of physicians would do; and (2) plaintiff failed to establish proximate causation between Dr. Portes's conduct and Leanne's death, because Dr. Lowy testified that, even if she had been diagnosed in 2001, Leanne would have had the same treatment she had in 2002 and she still would have ultimately succumbed to the disease. The trial court denied the motion, stating that plaintiff had made a prima facie case for proximate cause and that Dr. Rubin had acknowledged the proper standard of care that plaintiff's attorney laid out on direct.

¶ 33 5. Dr. Abraham Dachman

¶ 34 Dr. Abraham Dachman, a diagnostic radiologist, testified for the defense as follows. The role of radiologists is to make recommendations, and they do not refer patients or instruct physicians what to do. He was asked to analyze the 2001 CT scan without any other information about the patient. The scan showed a mass in the head of the pancreas. Dr. Dachman later reviewed Dr. Huang's report, and he believed that her statement that there was no discrete mass was inaccurate. To a reasonable degree of medical certainty, he believed that she should have mentioned that the mass was present and visible. However, he was not offering an opinion on whether Dr. Huang deviated from the standard of care. Further, her report indicated a 50% chance of a tumor causing the widening of the duct.

¶ 35 The mass appearing in the 2001 CT scan was in the same location as the mass in the head of the pancreas visible in the 2002 CT scan. There was not a substantial change in the size of the tumor between the two scans, so from a radiological perspective the disease did not significantly progress, and there was not a difference in the stage of the tumor from 2001 to 2002.

¶ 36 6. Dr. William Hulesch

¶ 37 Dr. William Hulesch, a family practice physician, opined that Dr. Portes met the applicable standard of care. Leanne did not have any signs or symptoms of pancreatic cancer in February 2001, her lab tests were normal, and her back pain was not related to the cancer. Dr. Huang's statement that there was no mass in the head of the pancreas was "reassuring," and there could have been benign reasons for the widening of the duct. It was reasonable and within the standard of care for Dr. Portes to talk to Leanne about an ERCP but then take a "wait and see" approach. He advised her to return to the office if she had any problems, but she did not do so. An ERCP was a technically difficult procedure with serious risks. Dr. Hulesch agreed that, if Dr. Portes did not discuss with Leanne the possibility of a pancreatic tumor causing the widening of the duct, it would have been a deviation from the standard of care.

¶ 38 7. Dr. Leon Dragon

¶ 39 Dr. Leon Dragon, a medical oncologist, testified on the subject of causation. The mortality rate is 95% or higher for pancreatic cancer, compared to 40% or less for breast cancer. Dr. Dragon opined that Dr. Portes did not cause or contribute to Leanne's pancreatic cancer; to her cancer spreading or metastasizing; to the recurrence of her pancreatic cancer; or to her death from pancreatic cancer.

¶ 40 Dr. Dragon opined that Leanne had cancer in the head of her pancreas "considerably before" 2001. He further opined that it had already metastasized to her lymph nodes by February 2001 and that it was already a Stage IIB at that time. If Leanne had been diagnosed in February 2001, she still would have had to undergo the same treatment she did 17 months later. Dr. Dragon opined that her cancer would still have recurred and she would still have died from the disease. In other words, she did not lose any chance for a cure during those 17 months. He believed that she fell within the 95% of pancreatic cancer patients who die within five years of their diagnoses. Pancreatic cancer is a difficult cancer to treat, and it almost always has already spread by the time of any presentation.

¶ 41 8. Dr. Mick Meiselman

ΒΆ 42 Gastroenterologist Dr. Mick Meiselman opined that if a reasonably qualified gastroenterologist had seen Leanne in February 2001, he would not have ordered an ERCP. Leanne was asymptomatic, and the CT scan did not show a mass. The CT scan did show a dilated pancreatic duct, but a single duct dilation is usually benign and not due to cancer. On the other hand, most patients who have blocks in both their bile and pancreatic ducts have cancer, but that was not shown in the 2001 scan. Moreover, out of all the procedures that a gastroenterologist performs, an ERCP has the most complications and the most serious complications, including death for 1 out of 300 people. Even if an ERCP had been performed in 2001, it would likely have shown just a narrowing of the pancreatic duct. Because Leanne was not showing any cancer signs at the time, the standard practice would have been to "follow ...

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