Ayala v. Murad

855 N.E.2d 261, 305 Ill. Dec. 370, 367 Ill. App. 3d 591
Appellate Court of Illinois·Decided September 12, 2006·No. 1-05-0511·Published·Cited by 37 cases

Opinions

JUSTICE SOUTH

delivered the opinion of the court:

Plaintiff, Joyce Ayala, individually, and as special administrator of the estate of her daughter, Michelle Ayala, brought this medical malpractice action seeking damages for the alleged injury and wrongful death of Michelle. Following the presentation of plaintiffs case-in-chief, the trial court granted the motions of defendants Tariq Murad, M.D., Tariq Murad, Ltd., and Barrington Pathology, Ltd., for a directed verdict on the grounds that plaintiff had failed to prove the proximate cause element of her claim.

On April 8, 1998, Michelle Ayala, who was 18 years old at the time, had a large tumor surgically removed from her abdomen by Dr. Regis Weiss at Good Shepherd Hospital in Barrington, Illinois. Tests performed at the time by Dr. Murad, a pathologist, indicated it was a noninvasive borderline ovarian tumor. Approximately 18 months later, Michelle was diagnosed as having a stage IV ovarian tumor with the cancer having spread or metastasized to her lungs and the bone of her spine. On September 9, 2000, Michelle died of low blood pressure and other complications of metastatic ovarian cancer. Plaintiff ultimately filed a medical malpractice complaint against Dr. Murad, individually, and as an agent for Tariq Murad, Ltd., and Barrington Pathology, Ltd., 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)).1 Plaintiff alleged, inter alia, that Dr. Murad had failed to provide a proper pathological diagnosis of Michelle’s tumor which led to the complications resulting in her death.

During the jury trial, Dr. Regis Weiss, a gynecologic oncologist, testified that he first examined Michelle in the spring of 1998. She had recently lost a considerable amount of weight by choice but did not lose abdominal girth. Michelle’s family physician, Dr. Ferolo, referred her to Dr. Weiss after discovering a very large mass filling her abdomen, which was confirmed by a CT scan. Michelle had a very distended abdomen and, as best as Dr. Weiss could tell, it extended from her rib cage, down to her pubic bone, and out into the flanks, which constitute the sides of the abdominal wall, and filled all the available space. He thought it was probably a benign mucinous tumor due to its size and Michelle’s age. Dr. Weiss testified that the larger the tumor, the less likely it is to be malignant, and that malignancies are usually more symptomatic before reaching such a large size. Dr. Weiss scheduled surgery to remove the mass and informed Michelle that he would possibly need to do a second operation if something malignant were found.

During Michelle’s surgery on April 8, 1998, Dr. Weiss felt the surface of her tumor, which did not appear to be attached to the abdominal wall, intestine, or anything behind it, which meant it was more likely benign. Due to the size of the growth, which was over 60 pounds, Dr. Weiss chose to decompress it by suctioning out approximately six gallons of liquid. The remaining mass, which weighed about nine pounds, was also removed and sent along with two fluid samples to the pathologist. While awaiting the results, Dr. Weiss observed various organs and portions of the abdomen and did not feel or see any abnormalities.

The pathologist, Dr. Murad, telephoned during the surgery and said it was a mucous-type tumor, and while he saw some borderline changes in focal areas, it did not appear to have any invasion. Dr. Weiss then closed the patient and did not take any further action. If Michelle’s tumor had been diagnosed as malignant, Dr. Weiss would have done washings from various areas of the abdomen, taken additional samples, removed the omentum, and done a lymph node dissection. Within several days of the surgery, Dr. Weiss received a final written report from Dr. Murad which was a product of a complete sampling of the tissue and fluid provided. Dr. Murad concluded that Michelle’s growth was a mucinous ovarian tumor of low malignant potential or a borderline tumor. Dr. Weiss shared the results of the pathology report with Michelle and her mother in April 1998 and told them “that while it was not a benign tumor, a borderline tumor was not as worrisome as cancer.” During the 14 months following the surgery, Dr. Weiss did four follow-up examinations and did not discover any abnormalities. In September 1999, he was told by Dr. Ferolo that Michelle was found to have a femoral or bony tumor, and when they investigated, she also had tumors in her lungs.

Dr. Murad testified he is a board-certified pathologist and he, and his partner, Dr. Raja Bahu, perform pathology services at Good Shepherd Hospital. On April 8, 1998, he inspected Michelle’s tumor after it was sent to the pathology lab from the operating room. Dr. Murad found no obvious macroscopic or visual invasion. He also made four frozen section slides from the nine-pound tumor. When Dr. Mu-rad looked at the frozen sections under a microscope, he saw only a borderline tumor. A borderline tumor of the ovary is the same as a tumor of low malignant potential. Dr. Murad contacted Dr. Weiss during the surgery and informed him that the tumor was borderline. He subsequently took several slices throughout the nine-pound tissue sample which resulted in 21 permanent section slides. On April 9, 1998, he examined each of the slides under a microscope and provided a two-page pathology report which contained the following diagnosis: “right tube and ovary, mucinous ovarian tumor of low malignant potential (borderline tumor), see microscopic description.” In the microscopic description, he wrote, “no invasion is identified in any of the sections examined, and there are areas in which the lining is that of a single layer of mucinous secreting columnar type cells with basal nuclei.” He wrote “absent” in the column pertaining to vascular invasion. Dr. Bahu also looked at Michelle’s slides and agreed that it was a borderline tumor.

Dr. Robert Mandal testified he was Michelle’s primary medical oncologist from September 1999 until her death. When Michelle became his patient, she had stage IV ovarian cancer which had already spread to the lungs and the bone of the spine. As a medical oncologist, Dr. Mandal treats cancer patients with chemotherapy and other injectable or orally administered modalities. He opined that Michelle’s tumor most likely spread through the blood from her ovary. Five different chemotherapy regimens were tried on Michelle, but none worked. Dr. Mandal testified that stage IV ovarian cancer which has metastasized to the lung and bone, according to the Federation of International Obstetricians and Gynecologists (FIGO) standards, is incurable, regardless of the chemotherapy used.

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Ayala v. Murad, 855 N.E.2d 261, 305 Ill. Dec. 370, 367 Ill. App. 3d 591 (Ill. Ct. App. 2006).

855 N.E.2d 261 (Ayala v. Murad) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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