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Sharbono v. Hilborn

Court of Appeals of Illinois, Third District

January 21, 2014

LEE ANN SHARBONO, Plaintiff-Appellant,
MARK HILBORN, M.D., Defendant-Appellee

Modified upon denial of rehearing June 11, 2014.

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Appeal fro the Circuit Court of the 13th Judicial Circuit La Salle County, Illinois. Circuit No. 06-L-199. Honorable Joseph P. Hettel, Judge, Presiding.


The judgment entered for defendant in a medical malpractice action alleging that defendant failed to timely diagnose plaintiff's breast cancer was reversed and the cause was remanded for a new trial on the ground that the trial court erred in permitting the defense to use a PowerPoint presentation as demonstrative evidence during defendant's testimony, since a proper foundation for the evidence was not established, the presentation was not disclosed to plaintiff in a timely manner, and the use of the exhibit went beyond trying to educate the jury on the characteristics radiologists use in evaluating breast lesions.

Anthony C. Raccuglia (argued) and James A. McPhedran, both of Anthony C. Raccuglia & Associates, P.C., of Peru, for appellant.

Brian J. Hickey (argued) and Jennifer A. Bollow, both of Cassiday Schade, LLP, of Naperville, for appellee.

JUSTICE CARTER delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion. Justice Schmidt also dissented upon denial of rehearing, with opinion.


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[¶1] Plaintiff, Lee Ann Sharbono, filed an action for medical negligence against defendant, Dr. Mark Hilborn, a board-certified radiologist, alleging that defendant had failed to timely diagnose her breast cancer. After a trial, the jury found for defendant and against plaintiff. Plaintiff filed posttrial motions for judgment notwithstanding the verdict, for new trial, and for rehearing, all of which the trial court denied. Plaintiff appeals, arguing that the trial court erred in: (1) denying her posttrial motion for judgment notwithstanding the verdict or for new trial; (2) allowing the defense to present a certain PowerPoint presentation as demonstrative evidence during defendant's testimony at trial; (3) providing the jury with an erroneous instruction on standard of care; and (4) instructing the jury on mitigation of damages. We agree with plaintiff's second assertion and find that the error was reversible error. Therefore, we reverse the trial court's judgment and remand this case for a new trial.

[¶2] FACTS

[¶3] In August 2006, plaintiff was diagnosed with breast cancer in her left breast, which had spread to the nearby lymph nodes under her left arm. Plaintiff underwent extensive treatment, including a modified radical mastectomy of her left breast, removal of several of the lymph nodes in her left under arm area, and numerous rounds of chemotherapy and radiation. Although plaintiff's cancer has been in remission now for several years, she still suffers from lymphedema in her left arm as a result of the cancer surgery and from the constant fear that her cancer will return.

[¶4] The lawsuit in this case arose out of a diagnosis that was made by defendant in November 2004. Plaintiff, who was 39 years old at the time, initially went to see her primary care doctor, Dr. Daisy Chacko, a family physician, because she was experiencing fatigue, weight gain, and

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aches and pains. Dr. Chacko ordered a screening mammogram. Plaintiff had a previous mammogram done in July 1998 when she was 32 years old and lived in Texas, and, although plaintiff had what she described as hard ridges under her breasts, nothing abnormal was found in the mammogram.

[¶5] Defendant was the radiologist who interpreted the images from the tests of plaintiff's left breast that were conducted in October and November 2004 (the November 2004 tests). In the initial screening mammogram, defendant observed an abnormality or a lesion in plaintiff's left breast that was not present in the 1998 mammogram and recommended that a diagnostic mammogram be completed. The diagnostic mammogram also showed a lesion in plaintiff's left breast, so an ultrasound was ordered. Following an evaluation of the ultrasound images, defendant ultimately concluded that the lesion in plaintiff's left breast was benign. No biopsy was ordered or recommended by defendant at that time.

[¶6] In 2005, plaintiff went back to see Dr. Chacko, complaining of cramping in her left breast. Dr. Chacko reassured plaintiff that the 2004 mammogram showed that everything was fine and that there was nothing to worry about.

[¶7] In May 2006, plaintiff returned to her family physician's office, complaining of cramping in her left breast and pain in her shoulder, and requested that another mammogram be done. The mammogram was not conducted, however, until August 2006, just prior to plaintiff's forty-first birthday, because of a miscommunication between the hospital and the doctor's office.

[¶8] Defendant interpreted the August 2006 mammogram and, after evaluating the images, recommended that plaintiff obtain another ultrasound of her left breast. The ultrasound indicated that the lesion in plaintiff's left breast was likely malignant, and a biopsy was ordered. All three procedures--the mammogram, the ultrasound, and the biopsy--were done on the same day. The biopsy confirmed that plaintiff had breast cancer.

[¶9] In December 2007, plaintiff brought the instant action against defendant and the hospital for which defendant provided services, alleging, primarily, a negligent failure to timely diagnose her breast cancer. The hospital was later dismissed from the instant action based upon a settlement with plaintiff. The complaint against defendant was amended several times over the following four years, and the case eventually proceeded to a jury trial in November 2011.

[¶10] The evidence presented at the trial can be briefly summarized as follows. Plaintiff testified about her symptoms and her history of medical tests and procedures leading up to the cancer diagnosis, including the 1998 mammogram, the 2004 tests, and the 2006 tests; described the treatment that she received after the diagnosis of cancer was made; and explained in detail the lasting lymphedema and other complications that she experienced as a result of having to undergo the level of cancer treatment that was required. As for the results of the November 2004 tests, plaintiff stated that she was personally told by defendant that " everything was fine" and that " there was nothing there." In addition, according to plaintiff, she was not provided with any specific follow-up recommendation by defendant, other than a form letter that she later received from defendant's office or the hospital, which stated that her results did not show any suspicious abnormalities and suggested that she start obtaining annual mammograms at the age of 40, consistent with the recommendations of the American Cancer Society. Plaintiff indicated that she complied

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with that recommendation by going to see her doctor to schedule a mammogram when she was 40 years old. Plaintiff stated further that had she known that there was an abnormality present in the images of her left breast, she would have gotten a second opinion.

[¶11] Dr. Michael Foley, a physician who was board-certified in diagnostic radiology, nuclear medicine, and interventional radiology, provided testimony for plaintiff on the standard of care as an expert witness. After describing his background and experience to the jury, Dr. Foley testified about the four evaluative characteristics that were used by radiologists in evaluating images of breast lesions: margins, shadowing, axis of orientation, and internal echo consistency. Dr. Foley also described for the jury the Breast Imaging Reporting and Database System (BIRADS), a system that was used by radiologists to classify breast images, and discussed the follow-up treatment that was dictated by each particular classification. During his testimony, Dr. Foley opined that defendant breached the standard of care in several respects as to defendant's review of the 2004 images and defendant's diagnosis in 2004 that the lesion in plaintiff's left breast was benign. Dr. Foley discussed at length the areas in which defendant breached the standard of care and explained to the jury the reasons for his opinion in that regard.

[¶12] Dr. Gillian Maclaine Newstead, a radiologist who specialized in breast imaging and who was involved in plaintiff's cancer treatment, also testified as an expert witness for plaintiff. After describing her education and experience to the jury, Dr. Newstead was asked about a certain portion of the 2004 ultrasound images of plaintiff's left breast. Dr. Newstead stated that those images showed abnormal breast tissue, a mass, or a lesion. In Dr. Newstead's opinion, the lesion needed further evaluation, such as additional imaging or a biopsy, to determine whether it was benign or cancerous. Dr. Newstead acknowledged in her testimony, however, that she did not review all of the 2004 ultrasound images; that " abnormal" did not mean " malignant" ; and that she had no opinion as to whether defendant complied with the standard of care, whether plaintiff had cancer in 2004, or whether a cancer diagnosis in 2004 would have changed plaintiff's prognosis.

[¶13] Dr. Mark Kelley, a board-certified surgeon who specialized in surgical oncology and who was asked to review the records in this case, testified for plaintiff as an expert witness on the issues of causation and damages. After describing his education and experience for the jury, Dr. Kelley opined, based upon his review of the record, that: (1) plaintiff's lesion in the November 2004 ultrasound should have been classified as at least a BI-RADS 3 (probably benign), rather than a BI-RADS 2 (benign); (2) plaintiff had cancer in 2004; (3) plaintiff did not have lymph node involvement in 2004; (4) if plaintiff had been diagnosed with cancer in 2004, her treatment would have been less extensive--plaintiff would have received a lumpectomy or partial mastectomy, rather than a mastectomy, plaintiff would not have needed chemotherapy, plaintiff would still have needed radiation therapy but would have had fewer side effects, plaintiff's prognosis for survival would have been better, both at the time of diagnosis and at the time of trial, and plaintiff would not have been likely to develop lymphedema; (5) a modified radical mastectomy, and not a lumpectomy, was ...

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