SIXTH DIVISION October 8, 2010
No. 1-09-1181
MARLA DAVIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 03 L 15200 ) COLMAN KRAFF and KRAFF EYE ) INSTITUTE, LTD., ) The Honorable ) Claire E. McWilliams, Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
Plaintiff Marla Davis appeals from a jury verdict in favor
of defendants Dr. Colman Kraff and the Kraff Eye Institute, Ltd.
(KEI), in her medical negligence action following two laser-
assisted in situ keratomileusis (LASIK) eye surgeries. Ms.
Davis's action was premised on the defendants' alleged failure to
inform her that she had an increased risk of nighttime vision
problems following LASIK surgery based on her claimed abnormally
large night-adjusted pupils. Ms. Davis contends she should
receive a new trial because Judge Clare E. McWilliams abused her
discretion in admitting testimony by defense experts in two
areas: (1) an expert testified that research conducted after Ms.
Davis's surgeries revealed that large night-adjusted pupils are
not predictive of post-LASIK nighttime vision problems; and (2) No. 1-09-1181
experts opined that Ms. Davis's large night-adjusted pupils at
the time of trial were caused by her use of certain antiallergy
and antidepressant medications. We hold Judge McWilliams
properly admitted the disputed testimony by defense experts for
the express purpose of rebutting the testimony of the plaintiff's
experts as to the cause of her enlarged pupils and her ultimate
injuries. We affirm.
BACKGROUND
Plaintiff Marla Davis developed nighttime vision problems
after the defendants performed LASIK surgery on both eyes in July
1998. A second LASIK "enhancement" procedure in August 1999
sought to address the problems. In her second amended complaint,
Ms. Davis alleged that prior to the surgeries, the defendants
failed to discover that she had abnormally large night-adjusted
pupils and, as a consequence, failed to inform her that her large
dilated pupils increased the risk that she would develop
postsurgical nighttime vision problems. The trial became a
classic battle of experts.
LASIK Surgery
Dr. Martin Markowitz, an ophthalmologist and the first of
the plaintiff's experts to present testimony, outlined for the
jury in his videotaped deposition the eye's basic anatomy and how
the LASIK procedure impacts the structure. Dr. Markowitz
described the cornea as the "clear window of the eye in which a
contact lens sits." Beneath the cornea is the pupil, a space in
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the center of the colored portion of the eye or iris. The pupil
controls the flow of light to the retina in the back of the eye
by contracting in bright light and dilating in dim light. The
retina processes the light admitted through the pupil into an
image. In many cases of nearsightedness, the cornea improperly
refracts light, misdirecting the light to an area slightly in
front of the retina rather than squarely on its surface. LASIK
surgeons use a laser to "ablate," or dissolve, a portion of the
corneal tissue to shorten the distance between the cornea and the
retina to correct the refractive error in nearsighted patients.
When LASIK was first developed, the eye surgery lasers
available for use by ophthalmologists could only "ablate" a
section of the cornea up to five millimeters in diameter. At the
time, ophthalmologists believed that if a patient's dilated
pupils exceeded five millimeters, the patient might perceive
postsurgery glare when light strikes an untreated portion of the
cornea as it passes through the pupil to the back of the eye. By
the time of Ms. Davis's first surgery in 1998, technological
advancements expanded the diameter of eye surgery lasers to 6
millimeters, and by the time of Ms. Davis's second surgery in
1999, the laser diameter had expanded to 6½ millimeters.
LASIK Treatments
Ms. Davis testified that on July 16, 1998, she went to KEI
for a consultation. She met Dr. Kraff, who explained how LASIK
surgery works. Ms. Davis quoted Dr. Kraff as stating she "would
3 No. 1-09-1181
be the ideal candidate for this procedure." Dr. Kraff gave Ms.
Davis a medical consent form, which she read and initialed.
Specifically, Ms. Davis initialed a paragraph that detailed
possible problems a LASIK patient might experience postsurgery:
"at night there may be a 'starbursting' or halo effect around
lights," a condition which "could be permanent." The consent
form cautioned that her postsurgical vision "may not seem as
sharp at night as during the day and that [she] may need to wear
glasses at night." The consent form also disclosed the risks of
total blindness and the loss of her eyes should rare
complications occur. Ms. Davis testified that although she
signed the form, she "wasn't willing to undergo any additional
risks for a procedure when I could see very well already." Dr.
Kraff did not inform Ms. Davis that she faced increased risks for
other possible problems. Ms. Davis could not recall whether the
diameter of her pupils was measured during the initial
consultation. Dr. Kraff scheduled Ms. Davis to undergo LASIK
surgery on both eyes six days later.
Two days prior to the surgery, Ms. Davis returned to KEI to
be examined "a little more in depth." Ms. Davis testified she
was never examined "in a room where they turned the lights down
all the way." However, according to KEI records in evidence, KEI
employee Mark Whiteside examined Ms. Davis prior to her initial
surgery and recorded the diameter of her pupils as three
millimeters in bright light and five millimeters in dim light.
4 No. 1-09-1181
Dr. Kraff performed LASIK surgery on both eyes as scheduled,
using an eye surgery laser with a diameter of six millimeters. A
videotape of the surgery was played for the jury. Dr. Kraff
later testified that the videotape showed Ms. Davis's pupils
ranged in diameter from three millimeters in normal light to six
millimeters in dim light.
Ms. Davis testified that shortly after surgery she
experienced nighttime vision problems, including glare and halos
around lights, which she reported to the defendants. Dr. Kraff
informed her that such problems were to be expected during the
healing process and with time the problems would clear up.
Approximately 10 months later, Ms. Davis returned to KEI
with the same complaints of nighttime vision problems, including
"glare[,] halos[, and] starbursting." According to Ms. Davis,
Dr. Kraff again said the problems were temporary. He also gave
her a prescription for eyeglasses because the visual acuity in
her left eye remained imperfect even after the LASIK procedure.
About a month later, Ms. Davis returned to KEI because her
nighttime vision problems continued. KEI's clinical manager,
Monica Bowles Watson, testified she measured the diameter of Ms.
Davis's pupils on this visit as four millimeters in normal light
and six millimeters in dim light. To measure Ms. Davis's pupils
in dim light, Ms. Watson turned off all the lights in the exam
room, except the desk light, for 10 minutes. She then measured
the diameter of Ms. Davis's pupils by comparing them to a chart.
5 No. 1-09-1181
Dr. Kraff also testified that on this visit he examined Ms. Davis
with a retinoscope, which uses a point of light directed to the
eye in dim conditions to accurately estimate the pupil's
diameter. Ms. Davis's eyes tested normal under the retinoscope.
Ms. Davis testified, however, that on June 21, 1999, Dr.
Kraff "told me that my pupils dilate larger [than normal]," and
that she was perceiving glare when her pupils dilated to a
greater diameter than the cornea area he treated in the LASIK
procedure. According to Ms. Davis, Dr. Kraff suggested that she
stop taking her anitallergy prescription medication, Allegra-D,
to "see if that helps." Dr. Kraff testified that he asked Ms.
Davis to stop using Allegra-D for a few days because a compound
in that medicine, pseudoephedrine, can cause pupils to dilate to
a larger size than normal. Ms. Davis testified she stopped
taking Allegra-D, but did not notice any improvement in her
vision. According to Ms. Davis, Dr. Kraff stated if her symptoms
did not improve he could perform "an enhancement *** that's made
for larger pupil size." She elected to have the enhanced LASIK
surgery.
On August 23, 1999, Ms. Davis met with Dr. Kraff and signed
a medical consent form identical to the form she signed for the
first LASIK surgery. That same day, KEI technician Laura Dominow
measured the diameter of Ms. Davis's pupils. To conduct the
measurement, Ms. Dominow turned off all the lights in the exam
room except for a small "can light." She recorded the diameter
6 No. 1-09-1181
of Ms. Davis's pupils as four millimeters in normal light and six
Dr. Kraff performed the enhancement surgery on August 24,
1999, using an eye surgery laser 6½ millimeters in diameter. A
videotape of that surgery was played for the jury. Defense
expert Dr. Steven Schallhorn later testified that the videotape
showed Ms. Davis's pupils varying in diameter from "three [to]
maybe a little less than six" millimeters, depending on the
lighting conditions.
Ms. Davis testified she returned to KEI shortly after the
"enhancement" surgery and reported that she was still having
vision problems in dim lighting. She was told this was part of
the healing process and it might take up to two years for the
problems to resolve following a second LASIK procedure. Shortly
thereafter, Ms. Davis moved from Illinois.
After two years passed, with Ms. Davis continuing to
experience nighttime vision problems, she consulted three
ophthalmologists near her Cleveland, Ohio, home: Drs. Martin
Markowitz, Greg Louis, and Jack Peretz. Ms. Davis was first
examined by Dr. Markowitz. In his videotaped deposition, Dr.
Markowitz testified to his measurement of Ms. Davis's pupils.
Dr. Markowitz turned off the lights in the examination room,
except for a dim light placed behind Ms. Davis and placed a pupil
gage underneath her eyes. He found Ms. Davis's pupils dilated to
nine millimeters, which was much greater than the diameter of eye
7 No. 1-09-1181
surgery lasers available in 1998 and 1999. Dr. Peretz also
measured Ms. Davis's pupils, using a procedure similar to Dr.
Markowitz's. Ms. Davis testified Dr. Peretz's examination room
was "a lot darker" than the KEI rooms where she was examined.
Dr. Peretz confirmed that Ms. Davis's dilated pupils were
abnormally large. Finally, Dr. Louis measured Ms. Davis's pupils
and also concluded that when dilated, they were abnormally large.
Ms. Davis published to the jury two photographs of herself
in dim lighting, one taken in 1995 and the other in 2008. She
testified that these photographs accurately depicted her pupils
dilating to the same size before and after her LASIK surgery.
Dr. Howard Siegel, another of Ms. Davis's experts, later
testified that Ms. Davis's pupils in the photographs were 8½
millimeters in diameter.
The parties presented expert testimony regarding the causes
of Ms. Davis's enlarged pupils and of her nighttime vision
problems. As detailed below, the defendants' experts generally
asserted that Ms. Davis's enlarged pupils, or "mydriasis," at the
time of trial were the product of her use of certain antiallergy
and antidepressant medications after her surgeries. Ms. Davis's
experts asserted that her nighttime vision problems were the
result of the defendants' LASIK surgery on a patient with
abnormally large night-adjusted pupils. According to her
experts, Ms. Davis's enlarged dilated pupils were not medication
induced.
8 No. 1-09-1181
Plaintiff's Causation Experts
Dr. Markowitz gave his opinion: "If the ablation zone [of
the eye surgery laser] is smaller than what the pupil dilates
to," the patient may perceive glare or other distortions at night
following LASIK surgery.
Dr. Siegel testified that while medication-induced mydriasis
would manifest in enlarged pupils, with such mydriasis the pupil
would not dilate or contract in response to the lighting
conditions. In his examination of Ms. Davis on April 16, 2007,
and on March 27, 2008, he did not observe that condition. In
each of his examinations, he measured the diameter of Ms. Davis's
pupils in dim light as 8½ millimeters. Dr. Siegel also noted
that before the second examination, Ms. Davis stated that she was
not using antiallergy or antidepressant medications. Dr. Siegel
admitted he lacks expertise in the technical aspects of LASIK
surgery, which he does not perform. Nonetheless, he opined that
light passing through the untreated zone of Ms. Davis's cornea
into her unusually large dilated pupils caused her nighttime
vision problems.
Richard Fiscella, a registered pharmacist with a master's
degree in public health, and a professor in the departments of
pharmacy and ophthalmology at the University of Illinois at
Chicago, testified as an expert in ocular pharmacology, "the
study of medication used in the eye or effects of medication on
the eye." Professor Fiscella is a section editor of two
9 No. 1-09-1181
textbooks in the field: "Clinical Ocular Pharmacology" and
"Ophthalmic Drug Facts." Professor Fiscella opined that none of
the medications Ms. Davis used, including Allegra-D, Zoloft, and
Cymbalta, cause mydriasis. Although the textbooks he edited, as
well as those relied on by the defendants' experts, discuss the
effects of general classes of drugs on pupil dilation, no
specific drug or dosage is identified. As an example, Professor
Fiscella noted that Tylenol falls in the class of drugs that
might induce mydriasis according to the textbooks, although no
report has ever connected Tylenol with mydriasis. Thus,
Professor Fiscella testified, even if a drug falls within a class
of medicines linked to mydriasis, a doctor cannot conclude with
"reasonable certainty that a particular drug in that class causes
mydriasis." To establish a causal connection between a drug and
mydriasis, a doctor would need to review case studies and reports
linking mydriasis to a specific dosage of the medicine.
Professor Fiscella added that medication-induced mydriasis
enlarges the pupil in all conditions, not just dim lighting. Ms.
Davis did not report such symptoms. On cross-examination,
Professor Fiscella admitted that he was not trained in
ophthalmology and does not perform LASIK surgery. As a
pharmacist, he never attended medical school.
Defendants' Experts
In addition to testifying as an adverse witness in Ms.
Davis's case in chief, Dr. Kraff testified in his own defense and
10 No. 1-09-1181
as an expert in LASIK surgery and medications that affect the
eyes. Dr. Kraff admitted that at the time of Ms. Davis's
surgeries, he believed, as did many ophthalmologists, that
patients with abnormally large dilated pupils, such as those
between eight and nine millimeters in diameter, would have
"slightly increased risk" for developing nighttime vision
problems following LASIK surgery. Dr. Kraff conceded that
failure to inform a patient with abnormally large pupils that she
had a higher risk for nighttime vision problems before undergoing
a LASIK procedure "would have been a deviation" from the standard
of care for informed consent in 1998 and 1999.
However, Dr. Kraff insisted that Ms. Davis's pupils at the
time of trial were "measuring larger than they were in 1998 and
1999 when I saw her." It was Dr. Kraff's opinion that Ms.
Davis's pupil enlargement was caused by her after-surgery use of
the antiallergy medication Allegra-D and antidepressants Zoloft
and Cymbalta. Those medications are known as "selective
serotonin reuptake inhibitors" (SSRIs). Dr. Kraff testified that
he read a specific article describing four studies that found
SSRIs "have a clinically significant effect on pupil size."
However, Dr. Kraff admitted the patients studied in the article
were taking two to four times the amount of Zoloft that Ms. Davis
had been prescribed. For his opinion on medication-induced
mydriasis, Dr. Kraff also relied on two textbooks: "Ocular
Differential Diagnosis" and "Drug-Induced Ocular Side Effects."
11 No. 1-09-1181
On cross-examination, Dr. Kraff admitted that none of the
Ohio ophthalmologists that examined Ms. Davis indicated she had
mydriasis: "They found large pupils, but they did not write down
mydriasis" in their records. He emphasized, however, that
"[m]ydriasis means a large pupil." Dr. Kraff admitted that the
LASIK procedure he performed on Ms. Davis was a "contributing
factor" in her nighttime vision problems, although in his opinion
it was not the only cause. He added that he had not personally
examined Ms. Davis since 1999.
Dr. Steven Schallhorn, a defense expert in ophthalmology and
LASIK surgery, opined that "low light pupil diameter will not
predict those patients who will have *** night vision problems,
glare, [or] halos" following LASIK. Dr. Shallhorn based his
testimony on his analysis of seven peer-reviewed studies
published after 1999, the textbook "Drug-Induced Ocular Side
Effects," the textbook "Ophthalmic Drugs Facts," for which
Professor Fiscella served as a section editor, and his own
personal observation of mydriasis related to the use of Allegra-D
in rare cases. According to Dr. Schallhorn, the theory that
pupil size is related to post-LASIK nighttime vision problems was
a "simplistic model," which improperly assumed light rays passing
through untreated portions of the cornea and pupil to the retina
caused visual problems. Instead, modern research has shown that
"light that enters through [the pupil] in the peripheral part of
the cornea when the pupil dilates, is much less likely to
12 No. 1-09-1181
stimulate that central area [of the retina] and cause flare or
halos or difficulty with night vision." In Dr. Schallhorn's
opinion, more likely causes of post-LASIK nighttime vision
problems include uncorrected refractive error, dry eyes,
irregularity of the cornea, and other "high-order aberrations" in
the shape of the eye. Dr. Schallhorn testified that the
defendants' performance of LASIK surgery on Ms. Davis "[i]n all
likelihood" contributed to her nighttime vision issues, but that
the LASIK surgery "may not be the only cause."
Dr. Schallhorn admitted he never examined Ms. Davis. He
also explained that the studies he relied upon for his opinion
were not available at the time of Ms. Davis's surgeries, the
first such study was published in 2003. Dr. Schallhorn added
that Allegra-D was not a probable contributor to her nighttime
vision problems given that Ms. Davis's symptoms did not diminish
after she stopped taking Allegra-D for a few days in June 1999.
However, he believed there was a difference in the size of Ms.
Davis's dilated pupils at the time of her surgeries and her
dilated pupil size at the time of trial, which he attributed to
"the medications that she was on."
On September 3, 2008, the jury reached a general verdict in
favor of the defendants. Ms. Davis filed a posttrial motion for
a new trial, which Judge McWilliams denied. Ms. Davis timely
appeals.
ANALYSIS
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Ms. Davis contends that the circuit court committed
reversible errors by allowing defense experts to testify that
postsurgical studies called into question the purported link,
commonly accepted by ophthalmologists in 1999 and earlier,
between abnormally large dilated pupils and nighttime vision
problems, and by allowing defense experts to testify that Ms.
Davis's abnormally large dilated pupils at the time of trial were
caused by certain medications. Ms. Davis filed motions in limine
to exclude the contested expert testimony, which the circuit
court denied. Ms. Davis objected to the testimony at trial and
raised the issues in her posttrial motion, which preserved the
claimed errors for appeal. Wilbourn v. Cavalenes, 398 Ill. App.
3d 837, 855, 923 N.E.2d 937 (2010).
Standard of Review
Both of Ms. Davis's contentions concern evidentiary rulings
by the circuit court, which are subject to an abuse of discretion
review. " 'Whether a motion in limine should be granted is
subject to the trial court's discretion.' [Citation.] 'A
reviewing court will not reverse a trial court's order allowing
or excluding evidence in limine absent a clear showing of an
abuse of that discretion.' [Citation.]" Petraski v. Thedos, 382
Ill. App. 3d 22, 26, 887 N.E.2d 24 (2008). Likewise, the
decision to admit expert testimony falls within the discretion of
the trial court. Petraski, 382 Ill. App. 3d at 27. The abuse of
discretion standard is " 'the most deferential standard of review
14 No. 1-09-1181
available with the exception of no review at all.' " People v.
Coleman, 183 Ill. 2d 366, 387, 701 N.E.2d 1063 (1998), quoting M.
Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L.
Rev. 469, 480 (1988). "An abuse of discretion occurs where no
reasonable person would agree with the position adopted by the
trial court." Schwartz v. Cortelloni, 177 Ill. 2d 166, 176, 685
N.E.2d 871 (1997). Thus, a "trial court cannot be said to have
abused its discretion if reasonable persons could differ as to
its decision." In re Adoption of D., 317 Ill. App. 3d 155, 160,
739 N.E.2d 109 (2000). We limit our analysis to whether the
circuit court erred in allowing the defense experts to testify
over Ms. Davis's objections at trial. If the circuit court did
not err in its rulings during trial, logic dictates that the
denial of the pretrial motions in limine could not amount to
reversible error. See Magna Trust Co. v. Illinois Central R.R.
Co., 313 Ill. App. 3d 375, 395, 728 N.E.2d 797 (2000) ("Violation
of a motion in limine is not per se reversible error").
Informed Consent Doctrine
There are four essential elements a plaintiff must prove in
a malpractice action based upon the doctrine of informed consent:
"(1) the physician had a duty to disclose material risks; (2) he
failed to disclose or inadequately disclosed those risks; (3) as
a direct and proximate result of the failure to disclose, the
patient consented to treatment she otherwise would not have
consented to; and (4) plaintiff was injured by the proposed
15 No. 1-09-1181
treatment." Coryell v. Smith, 274 Ill. App. 3d 543, 546, 653
N.E.2d 1317 (1995). The gravamen in an informed consent case
requires the plaintiff to "point to significant undisclosed
information relating to the treatment which would have altered
her decision to undergo it." Coryell, 274 Ill. App. 3d at 546.
In the case before us, the first element was satisfied when
Dr. Kraff testified that the standard of care in 1998 and 1999
required an ophthalmologist to inform a patient with abnormally
large pupils that she had a higher risk for nighttime vision
problems before obtaining the patient's consent to undergo a
LASIK procedure. That the second element--the defendants failed
to disclose the risk of nighttime vision problems to Ms. Davis--
was satisfied is not directly challenged by the defendants.
Instead, the defendants contend that prior to each LASIK surgery,
Ms. Davis did not present abnormally large dilated pupils.
Therefore, according to the defendants, the duty to disclose the
material risk of nighttime vision problems associated with
abnormally large dilated pupils was never triggered by Ms.
Davis's dim-light pupils, which the defendants contend measured
no larger than six millimeters in diameter. The trial centered
on the third and fourth elements of the informed consent
doctrine, which each party addressed through the testimony of
their respective experts.
To simplify our review, we first note that the overall
defense asserted by the defendants is that the duty to disclose
16 No. 1-09-1181
was never triggered by the size of Ms. Davis's dilated pupils.
This defense presented the jury with a fundamental question of
fact: did Ms. Davis present abnormally large dilated pupils prior
to each surgery? (It is uncontested that she had such a
condition when she was examined by the Ohio ophthalmologists.)
Only if the jury found Ms. Davis to have had abnormally large
dilated pupils prior to the surgeries would the jury then need to
determine the cause of her nighttime vision problems. In that
instance, the jury could render a verdict in favor of Ms. Davis
if the problems she experienced were the result of the heightened
and undisclosed risk she faced as a person with abnormally large
dilated pupils.
Third Element
To prove the third element in an informed consent case, Ms.
Davis had to persuade the jury that a "reasonable person" in her
position would have declined to undergo the LASIK surgeries had
the additional risk of nighttime vision problems based on her
claimed abnormally large dilated pupils been disclosed. " '[Only]
if *** disclosure would have caused a reasonable person in the
position of the patient to refuse the surgery or therapy[] [is] a
causal connection *** shown.' " Lisowski v. MacNeal Memorial
Hospital Ass'n, 381 Ill. App. 3d 275, 290, 885 N.E.2d 1120
(2008), quoting Schiff v. Friberg, 331 Ill. App. 3d 643, 657, 771
N.E.2d 517 (2002). In other words, Ms. Davis must present
evidence to establish a causal connection between the
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nondisclosure and her postoperative condition. Lisowski, 381
Ill. App. 3d at 290.
Fourth Element
To prove the fourth element in an informed consent case, the
plaintiff must demonstrate that the very risk she was uninformed
about materialized, causing her injury. Coryell, 274 Ill. App.
3d at 546. If the particular risk did not materialize, the
defendant's failure to disclose the risk, however erroneous,
cannot give rise to an actionable claim because no showing can be
made that the actual injuries suffered by the plaintiff were
caused by the treatment. See Schiff, 331 Ill. App. 3d at 657 (to
avoid a directed verdict on an informed consent claim, the
plaintiff must present some evidence that the undisclosed risk
materialized); Canesi ex rel. Canesi v. Wilson, 158 N.J. 490,
504-05, 730 A.2d 805, 812 (1999), citing Canterbury v. Spence,
464 F.2d 772, 790 (D.C. Cir. 1972); Nickell v. Gonzalez, 17 Ohio
St. 3d 136, 139, 477 N.E.2d 1145, 1148 (1985) (requiring informed
consent plaintiffs to show that "the unrevealed risks and dangers
which should have been disclosed by the physician actually
materialize[d] and [were] the proximate cause of the injury to
the patient"). Thus, the jury could attribute the nighttime
vision problems claimed by Ms. Davis to the undisclosed risk only
if it first found her claim credible that prior to the surgeries
her dilated pupils measured eight or nine millimeters. Leonardi
v. Loyola University of Chicago, 168 Ill. 2d 83, 106, 658 N.E.2d
18 No. 1-09-1181
450 (1995) ("Without that element [of proximate cause], there
would be no case"); Coryell, 274 Ill. App. 3d at 546.
Materialized Risk
Before addressing the evidentiary rulings by the circuit
court, we first address Ms. Davis's suggestion in her main brief
that she was not required to show that the undisclosed risk ever
materialized. Relying on her reading of Schiff, Ms. Davis argues
in her main brief that an informed-consent plaintiff need not
"explain[] the precise mechanism of injury tracing the
etiological link between the defendants' actions and the
plaintiff's injury."
In Schiff, the plaintiff underwent an emergency colostomy
when her bowel perforated during laparoscopic surgery performed
by the defendant. Schiff, 331 Ill. App. 3d at 647. The
defendant testified that bowel perforations were caused by pre-
existing diverticula on the colon that may have ruptured during
the surgery. Schiff, 331 Ill. App. 3d at 651, 654-55. The
defendant asserted on appeal "that the trial court's denial of a
directed verdict on the informed consent count constituted
error." Schiff, 331 Ill. App. 3d at 656-57. The defendant
claimed "that there was 'no evidence that the bowel was injured
by a needle, a trocar, or other instruments' " used by the
defendant during the surgical procedure. Schiff, 331 Ill. App.
3d at 657. In the absence of such evidence, " 'neither the
specific risk of injury as a consequence of perforation by an
19 No. 1-09-1181
instrument nor the "increased risk" from adhesions never [sic]
materialized.' " Schiff, 331 Ill. App. 3d at 657. In other
words, the plaintiff failed to establish "that her injury was
caused by the risk of puncture by surgical instrumentation."
Schiff, 331 Ill. App. 3d at 657.
The Schiff court explained that a directed verdict would lie
only if the plaintiff failed to establish a prima facie case on
the informed consent count. Schiff, 331 Ill. App. 3d at 657. By
definition, a prima facie case is established by the presentation
of "some evidence on every element essential to [the plaintiff's]
cause of action." Kokinis v. Kotrich, 81 Ill. 2d 151, 154, 407
N.E.2d 43 (1980). The Schiff court found the testimony of the
plaintiff's expert provided the evidentiary support that the
undisclosed risk materialized sufficient to establish a prima
facie case. The expert was asked " 'whether, in fact, the
perforations were caused by [the defendant doctor's] use of the
various instruments during [the plaintiff's] laparoscopic
procedure.' " Schiff, 331 Ill. App. 3d at 652. The expert
answered, " 'Certainly caused by something that happened during
the laparoscopic procedure, yes.' " Schiff, 331 Ill. App. 3d at
652. We ruled the circuit court properly allowed the jury to
render a verdict on the informed consent count because the
plaintiff had made out a prima facie case of negligence. Schiff,
331 Ill. App. 3d at 657-58. Contrary to Ms. Davis's claim that
Schiff stands for the proposition that an informed consent
20 No. 1-09-1181
plaintiff need not prove that the undisclosed risk materialized,
Schiff stands for the simple proposition that once a prima facie
case is made out, it falls to the jury, as finders of fact, to
assess the "credibility of witnesses and *** [resolve the]
conflicting evidence." Schiff, 331 Ill. App. 3d at 658.
It remained Ms. Davis's burden to prove each of the elements
in her informed consent case. Nolan v. Weil-McLain, 233 Ill.2d
416, 430, 910 N.E.2d 549 (2009) ("a plaintiff bears the burden of
producing evidence sufficient to establish each element of the
claim"); Coryell, 274 Ill. App. 3d at 546. The corollary to this
legal proposition is that the defendants were free to challenge
the evidence Ms. Davis marshaled on the third and fourth elements
of her claim with relevant evidence of their own. Leonardi, 168
Ill. 2d at 101 ("A defendant has the right *** to rebut evidence
tending to show that defendant's acts are negligent ***").
Postsurgery Medical Studies
Ms. Davis first contends that the circuit court committed
reversible error in allowing Dr. Schallhorn to testify regarding
medical studies, the first of which was published in 2003. The
studies found that abnormally large dilated pupils were not
predictive of nighttime vision problems. Ms. Davis contends that
her medical negligence action based on the doctrine of informed
consent should not turn on medical studies that postdate her
surgeries in 1998 and 1999. She argues that these postsurgery
studies might lead the jury to dilute the standard of care the
21 No. 1-09-1181
defendants were required to meet to fully inform Ms. Davis of the
risks she faced in the surgeries. To support her argument, Ms.
Davis quotes from a construction negligence case: "Postevent
literature cannot be used to show the standard of care." Gray v.
National Restoration Systems, Inc., 354 Ill. App. 3d 345, 360,
820 N.E.2d 943 (2004). While Ms. Davis's statement of law is
accurate, the circuit court's ruling here did not violate the
rule of law she quotes.
In the case before us, the circuit court ruled that
testimony concerning postsurgical literature was a proper means
of challenging Ms. Davis's evidence that she was injured by the
LASIK surgeries. See Bergman v. Kelsey, 375 Ill. App. 3d 612,
631-32, 873 N.E.2d 486 (2007) (postevent medical literature
admissible if not used "to show the standard of care"). Dr.
Markowitz opined that "[i]f the ablation zone [of the eye surgery
laser] is smaller than what the pupil dilates to," the patient
may perceive glare or other distortions at night following the
surgery. Dr. Louis testified that the large size of Ms. Davis's
dilated pupils were the cause of her nighttime vision problems.
Dr. Siegel opined that light passing through the untreated zone
of Ms. Davis's cornea into her unusually large dilated pupils
caused her nighttime vision problems. The circuit court admitted
Dr. Schallhorn's testimony concerning postsurgical literature to
directly challenge these opinions. The postsurgical studies
testimony did not pertain to the standard of care in 1998 and
22 No. 1-09-1181
1999, which Dr. Kraff conceded required an ophthalmologist to
disclose the increased risk of nighttime vision problems to a
patient with large dilated pupils.
Dr. Schallhorn's testimony regarding the postsurgery studies
constituted relevant evidence that Ms. Davis's nighttime vision
problems were not the result of her dilated pupils exceeding the
zone of the largest eye surgery laser available in 1998 and 1999.
Dr. Schallhorn testified that "low light pupil diameter will not
predict those [LASIK] patients who will have *** night vision
problems," problems he attributed to uncorrected refractive
error, dry eyes, corneal irregularity, and other "high-order
aberrations." Stated in terms of the fourth element of Ms.
Davis's informed consent case, the defendants introduced this
evidence to support their contention that Ms. Davis was not
"injured" by the LASIK surgery even if her dilated pupils
measured eight or nine millimeters at the time of the surgeries,
which the defendants' evidence disputed. See Coryell, 274 Ill.
App. 3d at 546. The postsurgery studies called into question the
generally held belief among ophthalmologists in 1999--a belief
apparently held by the plaintiff's experts at the time of trial--
that light striking an untreated portion of the cornea as the
light passes through the pupil to the retina causes post-LASIK
glare, the precise injury claimed by Ms. Davis.
We also agree with the circuit court that Ms. Davis's
23 No. 1-09-1181
concern that the jury might misapply the testimony amounts to no
more than speculation, as Ms. Davis cannot demonstrate that the
jury did in fact erroneously rely on such evidence to undermine
the standard of care that prevailed in 1998 and 1999. See
Eizerman v. Behn, 9 Ill. App. 2d 263, 279-80, 132 N.E.2d 788
(1956) ("evidence *** competent for one purpose does not become
incompetent because the jury might improperly consider it in some
other capacity for which it could not properly be admitted").
The opposing party must request a limiting instruction or forfeit
the issue. Eizerman, 9 Ill. App. 2d at 280 (if the opponent to
such evidence fails to request a limiting instruction, "he is
deemed to have waived any objection he may have").
The circuit court acted within its discretion in ruling Dr.
Schallhorn's testimony, regarding the studies published after Ms.
Davis's surgery, probative on the disputed elements of the
plaintiff's informed consent theory.
Medication-Induced Mydriasis
Ms. Davis contends the circuit court committed a second
reversible error in rejecting her objections at trial to the
opinions of Drs. Kraff and Schallhorn that her mydriasis
(enlarged pupil size) was caused by her use of certain
antiallergy and antidepressants following surgery. Ms. Davis
challenges the circuit court's ruling on four grounds.
First, Ms. Davis argues that the opinions of Drs. Kraff and
24 No. 1-09-1181
Schallhorn connecting medication with her large pupil size are
grounded on conjecture and speculation because no evidentiary
basis exists to support the opinions. "[A]n expert's opinions
and conclusions are still subject to the fundamental requirement
that they have some evidentiary basis." Simers v. Bickers, 260
Ill. App. 3d 406, 411, 632 N.E.2d 219 (1994). "When the opinion
of an expert is totally lacking in factual support it is nothing
more than conjecture and guess and should not be admitted as
evidence." Harris Trust & Savings Bank v. Otis Elevator Co., 297
Ill. App. 3d 383, 393, 696 N.E.2d 697 (1998).
To support her contention, Ms. Davis marshals the testimony
of her experts as to the size of her dilated pupils to
demonstrate a lack of evidentiary basis for the opinions of the
defendants' experts. Ms. Davis jumps from the uncontested fact
that her pupils measured abnormally large when she was examined
by the Ohio ophthalmologists, between eight and nine millimeters
in diameter, to her claim that her pupils were abnormally large
in dim lighting prior to the surgeries, a contention supported by
a photograph taken prior to her surgeries apparently showing that
she had large dilated pupils in 1995.
The problem with Ms. Davis's claim is that the jury also had
before it testimony by KEI employees that Ms. Davis's pupil
diameter measured five millimeters in dim light before her first
surgery and six millimeters in dim light before her second
25 No. 1-09-1181
surgery. The jury was also shown the videotapes of each LASIK
surgery. Dr. Kraff testified that the videotape of Ms. Davis's
first LASIK surgery showed Ms. Davis's pupils measured six
millimeters in dim light. Dr. Schallhorn testified that the
videotape of Ms. Davis's second LASIK surgery showed Ms. Davis's
pupils varying in diameter from "three [to] maybe a little less
than six" millimeters, depending on the lighting conditions.
We are aware of no authority that the defendants' evidence,
directly contradicting Ms. Davis's claim that she had abnormally
large dilated pupils prior to her surgeries, can somehow be
disregarded in assessing the evidentiary support of the expert
testimony introduced at trial. As we pointed out above, if the
jury determined that Ms. Davis's dilated pupils measured no
greater than six millimeters presurgeries, consistent with the
defendants' contentions, then the entirety of Ms. Davis's
informed consent claim necessarily failed. See Leonardi, 168
Ill. 2d at 106 ("Without that element [of proximate cause], there
would be no case"). Ms. Davis would simply not fall within the
group of LASIK patients that had a greater risk of nighttime
vision problems if her dilated pupils did not exceed the zone of
coverage of the eye surgery lasers available in 1998 and 1999.
Ms. Davis's reliance on this court's ruling in Simers for
support that the opinions of Drs. Schollhorn and Kraff were based
on "conjecture and speculation" is simply misguided. In Simers,
26 No. 1-09-1181
the defendant fitted the plaintiff with a pair of soft contact
lenses. Simers, 260 Ill. App. 3d at 408. Following the fitting,
the plaintiff complained of dry, itchy eyes, which the defendant
treated with eye drops, stressing the importance of disinfecting
the lenses after use. Simers, 260 Ill. App. 3d at 408. The
plaintiff continued to experience eye problems, which caused her
to be seen by numerous other eye professionals. Simers, 260 Ill.
App. 3d at 408. Her problems worsened to the point that she was
hospitalized with symptoms of near blindness. Simers, 260 Ill.
App. 3d at 409. The plaintiff sued, contending her vision
problems were caused by the negligent fitting of the contact lens
by the defendant. Simers, 260 Ill. App. 3d at 410-11. The
defendant's expert testified that the plaintiff's vision problems
were caused by an infection, which developed from improper
cleaning of the contact lens by the plaintiff. Simers, 260 Ill.
App. 3d at 410-11. He testified his opinion was based on the
hospital records, the depositions of the treating doctors, and
photographs of the plaintiff's eyes. Simers, 260 Ill. App. 3d at
412. The jury returned a verdict in the defendant's favor.
Simers, 260 Ill. App. 3d at 407. The Simers court reversed.
Based on the definition of conjecture as "a conclusion based
on assumption not in evidence or contradicted by the evidence"
(Simers, 260 Ill. App. 3d at 412, citing Nelson v. Speed
Fastener, Inc., 101 Ill. App. 3d 539, 428 N.E.2d 495 (1981)), the
27 No. 1-09-1181
court held there was "no factual, scientific or expert evidence
to support" the defense expert's opinion that the plaintiff's
vision problems were infection-based when the record was barren
of any evidence of bacteria in the culture of the cleaning
solution the plaintiff used to care for her contact lens.
Simers, 260 Ill. App. 3d at 412. In the absence of any evidence
to support the defense expert's opinion "that plaintiff's eyes
were infected due to her own lack of proper cleaning," the
opinion was conjecture. Simers, 260 Ill. App. 3d at 413. As
conjecture, the expert's opinion should never have been admitted
at trial. See Harris Trust, 297 Ill. App. 3d at 393 ("When the
opinion of an expert is totally lacking in factual support it is
nothing more than conjecture and guess and should not be admitted
as evidence").
In the instant case, that Drs. Schollhorn and Kraff
testified that Ms. Davis's enlarged dilated pupils at the time of
trial may have been caused by certain medications she was taking
was not a concession that Ms. Davis's pupils dilated to eight or
nine millimeters prior to the surgeries. The evidence conflicted
as to the size of Ms. Davis's dilated pupils prior to each
surgery. The conflict in the evidence as to Ms. Davis's dilated
pupil size prior to surgery provided evidentiary support for the
explanation offered by the defendants that Ms. Davis's abnormally
sized dilated pupils as testified to at trial were medication-
28 No. 1-09-1181
induced. Consistent with this contention, Ms. Davis testified
that following her surgeries she had been prescribed a class of
drugs that the defendants' experts linked to enlarged pupils.
Drs. Schollhorn and Kraff relied on scientific evidence,
including authoritative textbooks and their own experience to
offer the explanation that Ms. Davis's enlarged pupils at the
time of trial were medication related. The experts were
thoroughly cross-examined on their opinions; we are aware of no
authority that dictates that their opinions could not be
considered by the jury.
On the record before us, we find an evidentiary basis for
the conflicting opinions of the experts offered by both sides.
We reject Ms. Davis's claim that the opinions of the defendants'
experts were based on speculation and conjecture. See Harris
Trust, 297 Ill. App. 3d at 393-94 (trial court erred in directing
a verdict when record evidence minimally supported claim of
direct negligence against elevator company based on a reasonable
inference that an employee manipulated controls to allow elevator
to operate in an unsafe condition); Lisowski, 381 Ill. App. 3d at
289 (when patient's state of mind at time consent given for
surgical procedure is disputed, it falls to the jury to resolve
the dispute); Bergman, 375 Ill. App. 3d at 625-26 (it is within
the province of the jury to resolve evidentiary conflicts).
Second, Ms. Davis claims that the opinions should have been
29 No. 1-09-1181
excluded because Dr. Kraff's opinion is contradicted by his own
testimony that he personally ruled out medication-induced
mydriasis as a diagnosis after Ms. Davis's symptoms did not
improve when he told her to stop using Allegra-D in June 1999.
Ms. Davis, however, fails to set out the testimony by Dr. Kraff
that purportedly contradicts his opinion to support her
contention. Our review of the record reveals no such testimony
by Dr. Kraff.
Dr. Kraff never diagnosed Ms. Davis with mydriasis,
medication-induced or not. As we noted, according to the
defendants' records, Ms. Davis's dim-light pupils never exceeded
six millimeters presurgery. To rebut the inference from the
plaintiff's experts that Ms. Davis likely had abnormally large
dilated pupils prior to her surgeries, Dr. Kraff testified that
several prescriptions, not limited to Allegra-D, could have
caused Ms. Davis's later mydriasis. Even if Dr. Kraff had ruled
out Allegra-D as a cause of her nighttime vision problems after
she claimed to have stopped taking it for several days, no
testimony is quoted that he ruled out the additional prescription
drugs Ms. Davis was taking, including Zoloft and Cymbalta.
There is also no basis to discount the testimony of Dr.
Schallhorn and Dr. Kraff simply because neither examined Ms.
Davis after 1999. As experts, their opinions were based upon Ms.
Davis's medical history, review of authoritative textbooks and
30 No. 1-09-1181
studies, and personal experience. It is unfair to characterize
their testimony as conjecture based on the absence of an
examination of Ms. Davis near the date of her trial when she
fails to provide us with direct authority to support that claim.
Drs. Schallhorn and Kraff did not rely on implied facts not
present in the medical records to reach their opinions (see
Coffey v. Brodsky, 165 Ill. App. 3d 14, 25, 518 N.E.2d 638
(1987)); nor did they base their opinions on their own later
investigations when circumstances may have changed (see Dyback v.
Weber, 114 Ill. 2d 232, 244-45, 500 N.E.2d 8 (1986)). Their
opinions had adequate factual and scientific bases; the
defendants were entitled to present them to the jury.
Ms. Davis also seeks to make much of the absence of a
diagnosis of mydriasis by her three Ohio ophthalmologists or Dr.
Siegel. We find no basis to question Dr. Kraff's assertion that
mydriasis merely describes an enlarged dilated pupil, a condition
the four doctors noted present in Ms. Davis after 1999 and in the
1995 photograph. That no diagnosis of medication-induced
mydriasis was made simply reflects a difference of opinion
concerning the cause of her enlarged pupils, not the absence of
evidentiary support for the opinions of the defense experts
simply because they are contrary to the opinions of the
plaintiff's experts. The disagreement over the cause of Ms.
Davis's enlarged pupils, or mydriasis, was for the jury to
31 No. 1-09-1181
resolve. Lisowski, 381 Ill. App. 3d at 289; Bergman, 375 Ill.
App. 3d at 625-26.
Third, Ms. Davis contends that the opinions of Drs.
Schallhorn and Kraff improperly relied upon general pharmacy
texts. Our reading of the record reflects that the general
pharmacy texts were not the only bases for the offered opinions.
Dr. Schallhorn testified that his opinion was additionally based
upon his own experience of medication-induced mydriasis in rare
cases. Dr. Kraff testified that his opinion was additionally
based upon a specific article linking large pupils with certain
medications Ms. Davis was using.
Professor Fiscella testified that the general language in
the texts called into question whether medication-induced
mydriasis could be linked to a specific drug. The testimony of
Drs. Schallhorn and Kraff sought to establish such a link with
the drugs Ms. Davis had taken postsurgery. It then fell to Ms.
Davis "to challenge the sufficiency or reliability of the basis
for the expert's opinion during cross-examination, and[, if the
opinions are not excluded,] the determination of the weight to be
given the expert's opinion is left to the finder of fact." Adams
v. Family Planning Associates Medical Group, Inc., 315 Ill. App.
3d 533, 550, 733 N.E.2d 766 (2000). While Ms. Davis may have
effectively challenged the opinions of the defense experts
through the testimony of her own experts (Adams, 315 Ill. App. 3d
32 No. 1-09-1181
at 550), it was the province of the jury to resolve this battle
between the experts. Lisowski, 381 Ill. App. 3d at 289; Bergman,
375 Ill. App. 3d at 625-26.
Finally, Ms. Davis argues that neither Dr. Kraff nor Dr.
Schallhorn was qualified to give an opinion regarding medication-
induced mydriasis. "Expert testimony is admissible if the
proffered expert is qualified by knowledge, skill, experience,
training, or education, and the testimony will assist the trier
of fact in understanding the evidence." Snelson v. Kamm, 204
Ill. 2d 1, 24 (2003). As for medical experts, "the physician
must be a licensed member of the school of medicine about which
he proposes to testify" and must be " 'familiar with the methods,
procedures, and treatments ordinarily observed by other
physicians.' " Jones v. O'Young, 154 Ill. 2d 39, 43, 607 N.E.2d
224 (1992), quoting Purtill v. Hess, 111 Ill. 2d 229, 243 (1986).
Ms. Davis essentially argues that Drs. Kraff and Schallhorn,
as ophthalmologists, were not competent to offer opinions
concerning the effects of medications on the pupils because their
specialty fell outside the fields of pharmacy or pharmacology, a
new twist on her third basis to exclude the defense opinions.
The "same school of medicine rule" requires only that an expert
be licensed in the same field to give testimony on the medical
negligence standard of care. Ruffin v. Boler, 384 Ill. App. 3d
7, 19, 890 N.E.2d 1174 (2008). As we made clear above, the
33 No. 1-09-1181
standard of care was not disputed by the defendants; nor were the
opinions of Dr. Kraff and Dr. Schallhorn introduced for that
purpose. The "same school of medicine rule" does not apply to a
defense expert's testimony that addresses only the causation and
injury issues. Ruffin, 384 Ill. App. 3d at 19 ("The restriction
as to who may serve as an expert applies to testimony 'concerning
the standard of care' " (emphasis in original), quoting Greenburg
v. Michael Reese Hospital, 83 Ill. 2d 282, 291-92, 415 N.E.2d 390
(1980)).
We also note Ms. Davis sued an ophthalmologist; we are aware
of no authority that prevents an ophthalmologist from giving an
opinion in a suit against an ophthalmologist. See Schiff, 331
Ill. App. 3d at 658 (claim rejected that plaintiff's medical
expert with "board certification in gynecology" not qualified to
testify against medical defendant with "board certification in
gynecology, reproductive endocrinology and fertility"). As the
defendants emphasize in their brief, Ms. Davis seems to suggest
that no medical doctor is competent to testify to the side
effects of medications even though they are licensed to write
prescriptions. Such a rule would be unprecedented.
We reject each of Ms. Davis's arguments that the opinions of
the defense experts should have been excluded from the jury as to
medication-induced mydriasis.
General Verdict
34 No. 1-09-1181
In addressing each of the issues raised on appeal by Ms.
Davis, we found no error in the circuit court's rulings. We
nonetheless point out that even if we were to rule that the
circuit court erred in admitting the defense experts' testimony,
neither separately nor in combination would the errors be
reversible. Each alleged error could have been meaningless. See
Tabe v. Ausman, 388 Ill. App. 3d 398, 404-05, 902 N.E.2d 1153
(2009) ("The jury's analysis here might well have concluded with
a verdict in favor of the defendant doctors without reaching the
[disputed] element ***").
The jury may well have decided that the defendants
accurately measured Ms. Davis's dim-light pupils prior to each
surgery at no more than six millimeters. Such a factual finding
by the jury would preclude the necessary foundation to trigger
the defendants' duty to disclose the material risk based on
abnormally large dilated pupils because Ms. Davis presented dim-
light pupils within the normal range in 1998 and 1999. If Ms.
Davis had dim-light pupils within the normal range, as the
defense evidence tended to show, then Ms. Davis never actually
faced the material risk she claimed the defendants failed to
disclose to her and could not have been injured by the LASIK
procedures. See Coryell, 274 Ill. App. 3d at 546. Without a
special interrogatory that reveals the jury's findings on this
dispositive factual issue, our review of the jury's general
35 No. 1-09-1181
verdict is foreclosed. "[If] the mental processes of the jury
have not been tested by special interrogatories to indicate which
of the [multiple] issues was resolved in favor of the successful
party, it will be presumed that all issues were so determined
***.' " Strino v. Premier Healthcare Associates, P.C., 365 Ill.
App. 3d 895, 904, 850 N.E.2d 221 (2006), quoting H.E. Culbertson
Co. v. Warden, 123 Ohio St. 297, 303, 175 N.E. 205, 207 (1931).
CONCLUSION
As commonly happens in a medical malpractice case, the
persuasiveness of Ms. Davis's action boiled down to which of the
opposing experts persuaded the jury. In the course of allowing
the defendants to challenge the disputed elements of the
plaintiff's informed consent case, the circuit court properly
admitted the testimony of the defendants' expert on postevent
studies and medication-induced mydriasis over the numerous
objections by Ms. Davis. The circuit court properly admitted
such relevant testimony to assist the jury in reaching a fair
verdict. We find no grounds to grant Ms. Davis a new trial.
Affirmed.
CAHILL and MCBRIDE, JJ., concur.
36 No. 1-09-1181
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT _________________________________________________________________
MARLA DAVIS, Plaintiff-Appellant, v. COLMAN KRAFF and KRAFF EYE INSTITUTE, LTD., Defendants-Appellees.
________________________________________________________________
Appellate Court of Illinois First District, First Division
Filed: October 8, 2010 _________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
CAHILL and MCBRIDE, JJ., concur. _________________________________________________________________
Appeal from the Circuit Court of Cook County Clare E. McWilliams, Judge Presiding _________________________________________________________________
For PLAINTIFF- STEINBERG, GOODMAN & KALISH APPELLANT Bruce D. Goodman Peter M. Dapier Bradley D. Steinberg 20 North Clark Street, 31st Floor Chicago, Illinois 60602
For DEFENDANTS- DONOHUE, BROWN, MATHEWSON & SMYTH, LLC APPELLEES Richard B. Foster Karen Kies DeGrand Timothy L. Hogan 140 South Dearborn Street, Suite 800 Chicago, Illinois 60603