Dienstag v. Margolies

919 N.E.2d 17, 396 Ill. App. 3d 25, 335 Ill. Dec. 496, 2009 Ill. App. LEXIS 942
CourtAppellate Court of Illinois
DecidedSeptember 30, 2009
Docket1-06-1558
StatusPublished
Cited by9 cases

This text of 919 N.E.2d 17 (Dienstag v. Margolies) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dienstag v. Margolies, 919 N.E.2d 17, 396 Ill. App. 3d 25, 335 Ill. Dec. 496, 2009 Ill. App. LEXIS 942 (Ill. Ct. App. 2009).

Opinion

JUSTICE COLEMAN

delivered the opinion of the court:

Defendant, Dr. Lawrence Margolies, appeals from an order of the circuit court of Cook County entering judgment on the verdict in favor of plaintiffs in the remitted amount of $5,450,000. In a medical malpractice action, plaintiffs Marsha Dienstag and Gary Dienstag alleged that Dr. Margolies, a gynecologist, negligently failed to timely diagnose Marsha Dienstag’s breast cancer. Following the trial, the jury returned a verdict in favor of plaintiffs in the amount of $5,950,000. The trial court denied defendant’s motion for judgment notwithstanding the verdict or, alternatively, for a new trial and granted in part defendant’s motion for remittitur reducing the verdict by $500,000.

Defendant argues on appeal that the trial court erred by denying his posttrial motion for judgment notwithstanding the verdict or, alternatively, a new trial because, at the very least, the verdict was against the manifest weight of the evidence. Defendant also contends that he is entitled to a new trial just on damages or, alternatively, additional remittitur. Defendant further argues that he is entitled to a new trial because statements from plaintiffs’ counsel and a witness, as well as improper evidentiary rulings, deprived defendant of a fair trial. For the reasons discussed below, we affirm.

BACKGROUND

In May 2000, Marsha Dienstag (plaintiff or Marsha) was 54 years old when she was diagnosed with Stage III breast cancer. Dr. Lawrence Margolies (defendant) had been Marsha’s gynecologist since the mid-1980s. Marsha had a family history of cancer; an aunt had had breast cancer and a grandmother had had ovarian cancer. In 1991, after a mammogram showed an area of calcification in her left breast, Marsha had a biopsy. The biopsy was benign, but revealed atypical ductal hyperplasia. Marsha continued to have annual mammograms. In February 1998, Dr. Margolies prescribed estrogen to Marsha to alleviate some symptoms of menopause.

In July 1998, Marsha had her annual mammogram. The radiologist’s report stated that the tissue was dense, which may lower the sensitivity of mammography. The report also found that there was a “benign-appearing focal asymmetric density in the left breast in the axillary tail position.” The radiologist recommended returning for a mammogram in one year.

In July 1999, Marsha returned for her annual mammogram. The radiologist’s report again stated Marsha’s breast tissue is dense, which may lower the sensitivity of mammography. The report also found “asymmetric increased density left breast compared to right with discrete nodular areas probably cysts or fibroadenoma.” The radiologist’s assessment was “probably benign,” but he recommended an ultrasound of the left breast. Marsha had an ultrasound that indicated “no masses or cysts; that the areas of concern represented dense, but otherwise normal glandular tissue.” The radiologist assessed the findings as probably benign and recommended a one-year follow-up.

Marsha returned to see Dr. Margolies on November 2, 1999, complaining of breast tenderness and enlargement. Dr. Margolies physically examined Marsha, but at that time he felt no dominant lump. Dr. Margolies continued Marsha on estrogen and told her to see him in six months. When she returned on May 4, 2000, there was a palpable lump. Dr. Margolies ordered a mammogram and ultrasound that recommended a surgical consultation to remove a four-centimeter solid mass. Dr. Margolies referred Marsha to a general surgeon for consultation. The surgeon biopsied the mass and found it was malignant. Marsha then had a modified radical mastectomy to entirely remove her left breast and any involved lymph nodes. Following her mastectomy, Marsha underwent radiation for 5 days a week for 5 to 6 weeks and chemotherapy for 24 weeks. Thereafter, Marsha had reconstructive surgery.

Marsha Dienstag and her husband, Gary Dienstag, filed a complaint in negligence seeking damages against Dr. Margolies for failing to timely diagnose her breast cancer. Plaintiffs alleged that Dr. Margolies breached the standard of care by failing to discontinue estrogen and by failing to refer Marsha to a surgeon following either of her mammograms in 1998 or 1999. Plaintiffs alleged that had Dr. Margolies made such a referral in 1998 or 1999, Marsha would not have had to undergo a radical mastectomy of the left breast and such extensive chemotherapy and radiation, and the cancer would not have spread to her lymph nodes.

At the jury trial, plaintiffs presented testimony from Dr. Douglas Merkel, Marsha’s treating oncologist, Dr. William Matviuw, a retained expert obstetrician-gynecologist who gave standard of care testimony, and Dr. Lawrence Hollander, a retained general surgeon who gave proximate cause testimony. Plaintiffs Marsha and Gary Dienstag each testified. Dr. Margolies was called by plaintiffs as an adverse witness. Marsha’s treating physical therapist as well as her treating orthopedic surgeon also testified in plaintiffs case-in-chief.

Dr. Margolies testified on his own behalf. Defendant presented expert testimony from Dr. Andrew Roth, an obstetrician-gynecologist, and Dr. Bruce Silver, a diagnostic radiologist. Defendant also presented testimony from Marsha’s treating radiation oncologist.

On October 17, 2005, the jury returned a verdict in favor of plaintiff, itemized as follows for Marsha Dienstag: disfigurement $1 million; loss of normal life $1,375,000; pain and suffering $2 million; medical expenses $325,000; lost salaries and benefits $300,000; and possibility of cancer recurrence $650,000. The jury also awarded damages to Gary Dienstag, itemized as follows: loss of society and companionship $100,000; and loss of services $200,000. The jury verdict totaled $5,950,000.

Defendant filed a posttrial motion seeking judgment notwithstanding the verdict or, alternatively, a new trial. Defendant also sought remittitur of the verdict to a total of $1 million (the limits of Dr. Margolies’ malpractice Insurance policy). The trial court denied defendant’s posttrial motion for judgment notwithstanding the verdict or a new trial and granted in part defendant’s motion for remittitur. The trial court remitted the verdict as follows: Marsha’s damages for loss of normal life were reduced from $1,375,000 to $1,275,000; Marsha’s damages for lost salaries and benefits were reduced from $300,000 to $50,000; and Gary’s damages were reduced from a total of $300,000 to $150,000. The trial court entered judgment on the verdict in the amount of $5,450,000. This appeal followed.

DISCUSSION

1. Mootness

Prior to reaching the merits of the appeal, we address, as a threshold issue, plaintiffs’ argument that the appeal is moot. In response to Dr. Margolies’ appeal, plaintiffs argue that this court should dismiss the appeal as moot because the Dienstags entered an “assignment and forbearance” agreement with Dr. Margolies. The agreement assigns to the Dienstags Dr. Margolies’ claim against his malpractice insurance carrier (ISMIE) for “bad-faith refusal to settle,” in exchange for the Dienstags’ agreement that they will not seek payment of the excess judgment (i.e., the amount of the judgment exceeding the limits of Dr. Margolies’ policy) from Dr. Margolies.

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Cite This Page — Counsel Stack

Bluebook (online)
919 N.E.2d 17, 396 Ill. App. 3d 25, 335 Ill. Dec. 496, 2009 Ill. App. LEXIS 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dienstag-v-margolies-illappct-2009.