2025 IL App (1st) 240203
FOURTH DIVISION Order filed: January 16, 2025
No. 1-24-0203
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
JOSE RAMIREZ, Independent Administrator of the ) Appeal from the Estate of Ebeilda Ramirez, Decedent, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 21 L 9652 ) HOLLY CAROBENE, M.D., and COMPREHENSIVE ) PAIN CARE, ) Honorable ) John H. Ehrlich, Defendants-Appellants. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Lyle and Ocasio concurred in the judgment and opinion.
OPINION
¶ 1 Following a jury trial, Dr. Holly Carobene and Comprehensive Pain Care (together,
“Defendants”) appeal a judgment entered in favor of Jose Ramirez, as Independent Administrator
of the Estate of Ebeilda Ramirez (“the Estate”). The Defendants contend that the trial court erred
in denying their motion for judgment notwithstanding the verdict (JNOV), in which they argued
that the evidence did not establish that Dr. Carobene’s actions were the proximate cause of Ebeilda No. 1-24-0203
Ramirez’s death, and they also assert that the assessment of prejudgment interest was
unconstitutional. We see no merit to their arguments and affirm the circuit court’s judgment.
¶ 2 In September 2021, the Estate filed a two-count wrongful-death and personal-injury complaint
against the Defendants alleging that Ramirez had died of respiratory failure caused by Dr.
Carobene carelessly prescribing narcotic medication to her despite signs of drug abuse and drug-
seeking behavior. The Defendants answered the complaint and the case proceeded to trial.
¶3 The evidence presented at trial generally established that Ramirez suffered a work-related
injury in 2006 when she was 32 years old. She experienced pain in her neck and lower back and
over the next several years was treated with surgical procedures, epidural injections, nerve block
injections, and narcotic pain medication. Ramirez also suffered from additional maladies,
including generalized anxiety disorder, irritable bowel syndrome (IBS), panic disorder, depression,
asthma, mitral valve prolapse, and intussusception, for which she was prescribed a variety of
medications. In 2010, she began complaining of severe abdominal pain, for which Dr. Lloyd
Blakeman prescribed the narcotic hydrocodone, and he continued to prescribe hydrocodone for her
into 2011. Dr. Blakeman eventually stopped authorizing refills of Ramirez’s hydrocodone
prescription without an office visit, but Ramirez never came back to see him.
¶4 Ramirez then began seeing Dr. Carobene on June 21, 2011, complaining of neck and back
pain. At that time, she was taking hydrocodone three times per day. Dr. Carobene prescribed
hydrocodone for Ramirez at her first appointment and did so without checking the Illinois
Prescription Monitoring Program (PMP), which is an electronic database that collects, tracks, and
stores reported dispensing data on controlled substances, including hydrocodone. The PMP allows
a physician to look up a patient’s history of prescriptions for controlled substances. At her first
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appointment with Dr. Carobene, Ramirez signed a contract that: warned her that controlled
substances, including narcotics, have a high potential for misuse; stated that medication that is lost,
misplaced, stolen, or used up too quickly will not be replaced; required her to agree that she would
not request or accept a controlled substance medication from another physician while receiving
that medication from Dr. Carobene; and informed her that Dr. Carobene may determine that she
needs to see a medication use specialist, who may recommend that the prescription not be
continued.
¶5 Two days after Ramirez’s first appointment with her, Dr. Carobene conducted a PMP search,
which revealed that Ramirez had been receiving prescriptions for pain medicine from other
providers. When Dr. Carobene’s office called Ramirez, she informed them that she had recently
had a root canal and been prescribed a narcotic for pain. The PMP also revealed Ramirez’s
prescriptions from Dr. Blakeman, the latest of which was on May 4, 2011, as well as a hydrocodone
prescription from Dr. Leslie Michaud, which was on May 23, 2011.
¶6 Dr. Carobene continued to prescribe hydrocodone to Ramirez from 2011 until her death in
2015. During the course of their relationship, Ramirez reported to Dr. Carobene on several
occasions that she had either finished her prescription early or lost her pills, and several times her
urine tests revealed that she was negative for hydrocodone, indicating that she had not taken a
hydrocodone pill within the last one-and-a-half to two days and had finished her prescription early.
¶7 Specifically, on August 16, 2011, Ramirez appeared in Dr. Carobene’s office for a follow-
up after a laparoscopic procedure in her abdomen. At that visit, Ramirez’s urine screen was
negative for hydrocodone and Ramirez reported that she had taken her last dose of medication two
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days earlier. Dr. Carobene increased Ramirez’s hydrocodone prescription following that
appointment.
¶8 On December 29, 2011, Ramirez again appeared in Dr. Carobene’s office and falsely told
Dr. Carobene that she had left her medication in Mexico and needed a refill. A PMP search
conducted by Dr. Carobene’s office shortly after this visit revealed that Ramirez had been
prescribed hydrocodone by two other physicians in June and July of 2011.
¶9 Ramirez requested and received another refill of her hydrocodone prescription from Dr.
Carobene on January 26, 2012. Dr. Carobene’s office performed another PMP search after this
visit, which revealed that Ramirez had received another narcotic, Ativan, from another physician
in December 2011. On May 29, 2012, Ramirez again appeared at Dr. Carobene’s office for an
appointment, during which her urine screen again came back negative and she reported that she
had finished her prescription early. On November 16, 2012, Ramirez contacted Dr. Carobene’s
office, falsely told them that her husband had thrown out her hydrocodone, and requested an early
refill of the prescription. Dr. Carobene’s office “reinforce[d]” the controlled substances contract
and Dr. Carobene authorized the refill.
¶ 10 Over the course of 2013-2015, abdominal issues affected Ramirez’s ability to eat and caused
her to lose approximately 25 pounds, which required that an intravenous catheter (“PICC line”) be
installed in March 2015 to allow her to inject nutrients intravenously. On June 23, 2015, Ramirez
complained of chest pain, and 15 minutes later she was found unresponsive. She was pronounced
dead upon arrival at the hospital.
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¶ 11 The parties each presented expert testimony concerning Ramirez’s cause of death, her
possible addiction to narcotics, the nature of her abdominal complaints, and whether Dr. Carobene
violated the standard of care in her treatment of Ramirez.
¶ 12 Dr. Kristin Escobar Alvarenga testified that she is a pathologist for the Cook County Medical
Examiner’s Office and performed Ramirez’s autopsy. As part of the autopsy, Dr. Escobar examined
Ramirez’s lung tissue as well as toxicology reports detailing the presence of drugs in Ramirez’s
system at the time of death. Dr. Escobar observed several notable conditions, including acute
hydrocodone toxicity, “foreign body multinucleated giant cell reaction with polarized foreign
material in the lungs,” pulmonary congestion, and non-nutrition. Her opinion was that the cause of
death was acute hydrocodone toxicity, which she explained as a sufficient concentration of
hydrocodone in Ramirez’s blood to cause death. Specifically, Dr. Escobar testified that Ramirez had
a hydrocodone serum level of 0.18 micrograms per milliliter (μg/ml) and that, depending on the
textbook that you refer to, anything above 0.10 μg/ml can be considered toxic or lethal. However,
Dr. Escobar acknowledged that in her deposition she had stated that 0.20 μg/ml is the toxic level
for hydrocodone. Dr. Escobar also agreed that the decedent’s history of drug use and resulting
level of tolerance is a relevant consideration when determining the cause of death, and she admitted
that, at the time that she decided Ramirez’s cause of death, she was unaware that Ramirez had been
taking hydrocodone for several years.
¶ 13 Dr. Escobar testified that someone suffering from hydrocodone toxicity would typically
experience central nervous system depression and become obtunded, meaning that they would
have difficulty breathing, have slow respiration, and be drowsy or only semi-awake. Without
intervention, the person will eventually stop breathing and enter cardiac arrest. According to her
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review of Ramirez’s medical records, Dr. Escobar testified that on the day of her death Ramirez
did not show any signs of central nervous system depression and did not become obtunded.
¶ 14 Dr. Escobar explained that the observation of “foreign body multinucleated giant cell reaction
with polarized foreign material in the lungs” refers to foreign material in the lung tissue to which
the body has reacted and attempted to remove. Its presence is consistent with and can be explained
by a person grinding up medication and injecting it. Dr. Escobar agreed that, regardless of the toxic
effects of the drug, foreign material in the lungs can result in chest pain, difficulty breathing, and
ultimately death. Dr. Escobar also agreed that the symptoms that Ramirez exhibited in three
hospitalizations in the months before her death, which included chest pain, difficulty breathing,
fever, chills, and cough, were consistent with Ramirez grinding and injecting her medication into
her PICC line.
¶ 15 Dr. Stephen Cina, an anatomical and forensic pathologist who served as Cook County’s chief
medical examiner and acted as Dr. Escobar’s supervisor at the time of Ramirez’s death, testified
that he agreed with Dr. Escobar’s conclusion that Ramirez died of acute hydrocodone toxicity,
and, like Dr. Escobar, he testified that Ramirez’s hydrocodone serum level of 0.18 μg/ml was
within the lethal range. Dr. Cina agreed that the presence of foreign material in Ramirez’s lungs
was consistent with crushed pills being injected into her PICC line. Dr. Cina explained that a
medication that is injected into the bloodstream will be absorbed more quickly and produce a faster
reaction. However, the fillers in the pill that would normally be dissolved in the digestive system
when the pills are taken orally are not dissolved in the blood and eventually travel to the lungs,
where they get trapped, producing an inflammatory response. Dr. Cina also testified that the internal
autopsy examination revealed that Ramirez had adhesions in her abdomen. When asked
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why he believed that Ramirez died from acute hydrocodone toxicity, rather than from the foreign
material in her lungs, Dr. Cina explained:
“Well, what was going on in her lungs, this inflammatory process with giant cells
and deposition of all this material, that's been going on for weeks, months, potentially even
years if she has been doing it longer. This is a chronic process.
So she was alive with those lungs the day before she had this lethal hydrocodone
level. She was alive with these lungs a week before she had this lethal hydrocodone level
or even a month before she had this lethal hydrocodone level.
So if she didn't die at any of those times but just happened to die when she had a
lethal drug concentration on board, I'm going to go with the lethal drug concentration that
killed her.”
¶ 16 Dr. Andrew Engel testified for the Estate as an expert on pain management. Dr. Engel opined
that Dr. Carobene violated the standard of care in multiple ways: by prescribing hydrocodone to
Ramirez in June 2011 when there was clear evidence that Ramirez had been doctor shopping and
potentially misusing her medications; by not contacting the other doctors on the PMP who were
prescribing hydrocodone to Ramirez; by not referring Ramirez to a psychiatric addiction specialist;
by not transitioning Ramirez from hydrocodone to buprenorphine in light of her severe abdominal
pain, which he believed was narcotic bowel syndrome; and by continuing to prescribe hydrocodone
to Ramirez despite Ramirez not seeing any improvements in her level of pain.
¶ 17 Dr. Engel explained that Ramirez showed “all of the red flags” suggesting abuse, misuse,
and addiction by doctor shopping, running out of medication early, and failing urine screens, which
demonstrated that she was taking her medication too quickly. He opined that these red flags of
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misuse should have prompted Dr. Carobene to investigate Ramirez’s hydrocodone usage and
transition Ramirez from hydrocodone to buprenorphine. Ultimately, Dr. Engel opined that Dr.
Carobene’s violations of the standard of care caused Ramirez’s death and that, had Dr. Carobene
not prescribed hydrocodone to her, Ramirez would not have died.
¶ 18 On cross-examination, Dr. Engel agreed that Ramirez had told her primary care physician
and gastroenterologist about her abdominal pain but that Dr. Carobene was not made aware of that
pain until May 2015. Dr. Engel also admitted that, as a pain management specialist, Dr. Carobene
would not have been responsible for treating Ramirez’s gastrointestinal issues.
¶ 19 Dr. Wajahat Mehal testified as the Estate’s expert gastroenterologist. He concluded that
Ramirez had developed narcotic bowel syndrome and that Ramirez’s symptoms would have
allowed for a diagnosis of that condition by 2012. He based this conclusion on Ramirez having
satisfied several criteria, including that she had been taking narcotics for several years, that her
abdominal pain had not improved with the use of narcotics, that there was a worsening of the pain
when Ramirez used narcotics at a low level, and that there were no other adequate explanations
for the pain. Regarding the other possible explanations for Ramirez’s abdominal pain, Dr. Mehal
testified that IBS would not have led to her severe weight loss and malnourishment; that
intussusception is usually an acute and or short-lived condition, rather than the type of chronic
condition that Ramirez was experiencing; and that radiological imaging did not show the type of
bowel blockage that would normally accompany adhesions. Dr. Mehal ultimately opined that, had
her narcotic bowel syndrome been diagnosed and treated with a gradual reduction and eventual
cessation of opioid use, Ramirez would not have died.
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¶ 20 Dr. Olivera Bogunovic-Sotelo testified as the Estate’s addiction psychiatry expert. She opined
that, by January 2012, if she had been referred to a medication use specialist or addictionologist,
Ramirez would have been diagnosed with opiate use disorder, which is equivalent to addiction.
She based this conclusion on Ramirez’s doctor shopping and reporting of lost medication. Dr.
Bogunovic-Sotelo explained that the treatment for Ramirez’s addiction would have involved the
use of alternative medication, as well as therapy and counseling.
¶ 21 The Defendants’ forensic pathology expert, Dr. Andrew Baker, opined that Ramirez died
from complications resulting from injecting crushed pills into her venous system, and not from
acute hydrocodone toxicity. He believed that Ramirez’s hydrocodone serum level did not
contribute to her death in any way. He explained that drug toxicity is a diagnosis of exclusion that
requires that other potential causes of death be first ruled out, and in this case the condition of
Ramirez’s lungs trumped the equivocal postmortem hydrocodone serum level.
¶ 22 Dr. Jay Joshi testified as the Defendants’ anesthesiology and interventional pain management
expert. He disagreed with Dr. Engle’s conclusions that Dr. Carobene deviated from the standard
of care by prescribing hydrocodone to Ramirez at her first visit and in continuing to prescribe it
during the course of her care, as he believed that there was evidence that the hydrocodone was
improving Ramirez’s condition. He also opined that there was no evidence from which Dr.
Carobene should have been able to diagnose narcotic bowel syndrome. Like Dr. Baker, Dr. Joshi
believed that Ramirez died from embolized particulates in her lungs. He based that conclusion on
Ramirez being an opioid-tolerant patient who was on a lower dose of medication than she had been
in years prior, that she had been able to tolerate higher doses before, that her hydrocodone serum
level was not indicative of someone who had taken an excessive amount of
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medication, and that her symptoms immediately before her death were more consistent with
someone suffering from complications of particulates in her lungs.
¶ 23 Dr. Joshi also opined that Ramirez’s doctor shopping, negative urine screens, and reports
of lost medications did not support a diagnosis of opiate use disorder and did not require Dr.
Carobene to cease prescribing Ramirez with hydrocodone. According to Dr. Joshi, Ramirez’s daily
dosage of 30-40mg of hydrocodone per day was “very conservative” and well below the 100mg
threshold for being a questionable dosage.
¶ 24 The Defendants’ gastroenterology expert, Dr. Michael Frank, testified that Ramirez did not
have narcotic bowel syndrome. He explained that the hallmark feature of narcotic bowel syndrome
is unexplained abdominal pain that does not improve with increasing doses of narcotics but does
improve with a decrease in dosage. According to Dr. Frank, Ramirez’s medical records did not
indicate that her increases and decreases in abdominal pain were correlated with or connected to
her narcotics dosages in the manner that it should have been if she had narcotic bowel syndrome.
¶ 25 At the conclusion of trial, the jury returned a general verdict in favor of the Estate, finding
the Defendants liable for total damages in the sum of $6 million. On motion of the Estate, the
circuit court modified the judgment to assess an additional $647,999 in prejudgment interest. The
Defendants then filed a post-trial motion for judgment notwithstanding the verdict (JNOV) arguing
that the evidence failed to establish a prima facie case of proximate causation because the Estate’s
expert testimony relied on speculation and did not establish that Ramirez’s death was reasonably
foreseeable.
¶ 26 The circuit court denied the Defendants’ motion, finding that there was sufficient evidence
from which the jury could have found that the Estate established proximate causation. Specifically,
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the court stated that, as to cause in fact, based on Ramirez’s red-flag conduct, “the jury could have
reasonably found that, but for Carobene prescribing and ultimately increasing Ramirez's
prescription for hydrocodone, Ramirez would not have become addicted and would not have
eventually crushed her medication and injected it into her PICC line.” Regarding legal cause, the
court observed that, for the same reason, i.e. Ramirez’s red-flag conduct, “there was sufficient
evidence for the jury to conclude that Ramirez's death was not so extraordinary a result that
Carobene could not be found liable.” This appeal follows.
¶ 27 The Defendants raise three issues on appeal. First, they contend that the circuit court erred
in denying their motion for JNOV because the Estate’s expert testimony that Dr. Carobene’s
actions caused Ramirez’s death required speculation that Ramirez would not have obtained
narcotics from another source or injected alternative medications and failed to demonstrate that it
was reasonably foreseeable that Ramirez would inject her medication through her PICC line.
Second, they assert that, for essentially the same reasons, the jury’s verdict was against the
manifest weight of the evidence. Third, the Defendants argue that the prejudgment interest statute
(“PJI statute”) (735 ILCS 5/2-1303(c) (West 2022)) is unconstitutional. We see no merit to the
first issue, and the second and third issues we find to have been forfeited.
¶ 28 The Defendants’ first issue concerns the sufficiency of the evidence and the circuit court’s
denial of their motion for JNOV. “To succeed on a medical malpractice claim, the plaintiff must
prove (i) the standard of care a medical provider should have followed, (ii) the defendant failed to
meet the standard of care, and (iii) the plaintiff's injuries were proximately caused by the
defendant's failure to meet the standard of care.” Guerra v. Advanced Pain Centers S.C., 2018 IL
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App (1st) 171857, ¶ 30 (citing Johnson v. Loyola University Medical Center, 384 Ill. App. 3d 115,
121 (2008)). At issue in this appeal is the third element of proximate causation.
¶ 29 “The term ‘proximate cause’ encompasses two distinct requirements: cause in fact and legal
cause.” Young v. Bryco Arms, 213 Ill. 2d 433, 446 (2004) (citing Lee v. Chicago Transit Authority,
152 Ill. 2d 432, 455 (1992)). “The first requirement, cause in fact, is present ‘when there is a
reasonable certainty that a defendant's acts caused the injury or damage.’ ” Id. (quoting Lee, 152
Ill. 2d at 455). “In deciding this question, we first ask whether the injury would have occurred absent
the defendant's conduct.” Id. (citing Lee, 152 Ill. 2d at 455). “The second requirement, legal cause,
is established only if the defendant's conduct is ‘so closely tied to the plaintiff's injury that he
should be held legally responsible for it.’ ” Id. (quoting Simmons v. Garces, 198 Ill. 2d 541, 558
(2002)). “The proper inquiry regarding legal cause involves an assessment of foreseeability, in
which we ask whether the injury is of a type that a reasonable person would see as a likely result
of his conduct.” Id. at 446-47 (citing Lee, 152 Ill. 2d at 456). “Proximate cause in a medical
malpractice case must be established by expert testimony to a reasonable degree of medical
certainty, and the causal connection must not be contingent, speculative, or merely possible.” Ayala
v. Murad, 367 Ill. App. 3d 591, 601 (2006).
¶ 30 “A motion for JNOV should be granted only when the evidence and inferences therefrom,
viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant
that no contrary verdict based on that evidence could ever stand.” Ries v. City of Chicago, 242 Ill.
2d 205, 215 (2011) (citing Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992)). “The court has no
right to enter a judgment n.o.v. if there is any evidence, together with reasonable inferences to be
drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of
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credibility of the witnesses or the determination regarding conflicting evidence is decisive to the
outcome.” Maple, 151 Ill. 2d at 454. “A decision on a motion for JNOV is reviewed de novo.”
Ries, 242 Ill. 2d at 215 (citing Snelson v. Kamm, 204 Ill. 2d 1, 42 (2003)).
¶ 31 The Defendants argue on appeal, as they did in their motion for JNOV, that the Estate
failed to prove both elements of proximate causation. We will start with cause in fact. On that
point, the Defendants contend that the Estate’s expert opinions were insufficient to support a
finding that Dr. Carobene’s actions were the cause in fact of Ramirez’s death because the
opinions impermissibly relied on speculation that, had Dr. Carobene ceased prescribing
hydrocodone to her, Ramirez would not have obtained the drugs that killed her from another
source or injected another medication in a similar manner.
¶ 32 For support, the Defendants rely on two cases, Aguilera v. Mount Sinai Hospital Medical
Center, 293 Ill. App. 3d 967 (1997), and Pumala v. Sipos, 163 Ill. App. 3d 1093 (1987). In
Aguilera, the decedent presented in the emergency room complaining of numbness on the left side
of his body. 293 Ill. App. 3d at 968. A CT scan taken several hours later showed that the decedent
had a large intracerebral hemorrhage. Id. at 969. The decedent lapsed into a coma later that day
and died three days thereafter. Id. At trial, the decedent’s estate presented expert testimony opining
that the failure of the emergency room physician to order a CT scan earlier deviated from the
standard of care and that the decedent would have survived if the delay had been avoided. Id.
However, on cross-examination, both of the estate’s experts testified that, following the CT scan,
they would have consulted with and likely deferred to a neurosurgeon regarding whether surgical
intervention would have been appropriate. Id. at 969-70. The trial court granted the defendants’
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motion for JNOV on the grounds that the estate’s expert testimony failed to establish proximate
causation. Id. at 970.
¶ 33 On appeal, the appellate court agreed with the trial court and affirmed. Id. at 976. In doing
so, the court explained that the testimony of the estate’s experts amounted to conjecture and failed
to prove that the delay in administering the CT scan proximately caused the decedent’s death
because both experts admitted that they would have deferred to a neurosurgeon regarding the
appropriateness of surgical intervention and both of the neurosurgery experts who testified at trial
opined that, even with an earlier CT scan, surgery would not have been appropriate or ordered. Id.
at 974-75. The court concluded that the “absence of expert testimony that, under the appropriate
standard of care, an analysis of an earlier CT scan would have led to surgical intervention or other
treatment that may have contributed to the decedent's recovery creates a gap in the evidence of
proximate cause fatal to plaintiff's case.” Id. at 975.
¶ 34 In Pumala, the plaintiff’s family physician misdiagnosed her knee pain as a benign
osteochondroma. 163 Ill. App. 3d at 1095. When it was discovered several years later to be a
malignant osteosarcoma, a portion of the plaintiff’s leg had to be amputated. Id. at 1096. The
plaintiff sued the family physician on the theory that a correct initial diagnosis and a referral to the
appropriate specialist could have avoided the amputation. Id. at 1095. At trial, the plaintiff’s expert
witnesses could only speculate as to whether an earlier diagnosis could have yielded a better result,
with one expert testifying that “it’s possible” that a less-severe procedure could have been
performed and the other admitting that no one could say at what point the tumor was curable by
means other than amputation. Id. at 1099. The trial court granted a motion for directed verdict on
the basis that the patient failed to present sufficient evidence establishing that an early diagnosis
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could have avoided amputation and that the defendant physician, therefore, proximately caused
the patient’s injury. Id. at 1097. On appeal, the appellate court affirmed, concluding that, due to
the uncertainty and speculation in the opinions of the plaintiff’s experts, the plaintiff had “not
presented evidence that shows with a reasonable degree of medical certainty that defendant's
alleged negligence lessened the effectiveness of her treatment.” Id. at 1099.
¶ 35 Relying on these cases, the Defendants assert that the Estate “did not present evidence that
Ms. Ramirez would not have crushed pills and injected them into her PICC line had Dr. Carobene
referred Ms. Ramirez to an addiction specialist, terminated Ms. Ramirez’s hydrocodone
prescription, or diagnosed Ms. Ramirez with [narcotic] bowel syndrome.” Specifically, the
Defendants argue that, even if Ramirez had been transitioned from hydrocodone to buprenorphine,
as Dr. Engel opined that she should have been, there was no testimony establishing that Ramirez
would not have crushed and injected the buprenorphine, which Drs. Escobar and Cina
acknowledged could have caused her death. Similarly, the Defendants argue that the Estate did not
present testimony that, had Ramirez been weaned off of hydrocodone in 2012, Ramirez would not
have accessed it from another source in 2015, given the evidence of her drug-seeking behavior.
¶ 36 However, the cases that the Defendants cite for support are distinguishable from the present
case. In Aguilera and Pumala, the speculation or absence of evidence in the expert testimony
concerned distinctly medical issues within the expertise of the plaintiffs’ expert witnesses. In
Aguilera, that was whether an early CT scan would have prompted lifesaving surgery, and in
Pumala it was whether an earlier diagnosis would have prevented amputation or allowed for a less-
severe treatment. Those were medical issues on which it was reasonable to expect a medical
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expert to have an opinion, and the speculation that the experts were required to apply demonstrated
a lack of requisite certainty on the issue of causation.
¶ 37 In the present case, the Defendants focus on the fact that the Estate’s experts did not express
opinions on what Ramirez may or may not have done had Dr. Carobene not prescribed her
hydrocodone. That testimony regarding Ramirez’s hypothetical conduct is not of the same
character as the testimony at issue in Aguilera and Pumala. The Estate’s experts testified to a
reasonable degree of medical certainty that, had Dr. Carobene not prescribed hydrocodone to
Ramirez, whether that be due to Ramirez’s drug-seeking behavior, her evidence of addiction and
abuse, or her possible narcotic bowel syndrome, then Ramirez would not have died. Contrary to
the Defendants’ claims, that testimony did not rely on any speculation.
¶ 38 Indeed, the cause-in-fact analysis looks at whether the plaintiff’s harm would have resulted
absent the defendant’s conduct, and it is a simple fact that if Dr. Carobene had not been prescribing
hydrocodone to Ramirez, for whatever reason, then Ramirez would not have had the hydrocodone
that killed her. Asking whether Ramirez would have obtained hydrocodone from another source
or would have injected another medication is not the relevant inquiry, and it is not reasonable to
require the Estate’s experts to exclude every other possible way that Ramirez could have died,
particularly ones that involve issues of Ramirez’s own agency. Accordingly, we believe that the
Estate presented sufficient evidence that, absent Dr. Carobene’s actions, Ramirez would not have
died and that Dr. Carobene’s conduct was, therefore, the cause in fact of Ramirez’s death.
¶ 39 The second component of proximate causation is legal cause, which focuses on whether the
plaintiff’s alleged harm was a reasonably foreseeable and likely consequence of the defendant’s
actions. See Young, 213 Ill. 2d at 446-47. On this issue, the Defendants make three arguments,
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asserting that Ramirez’s death from misuse of her medication was not foreseeable because Dr.
Carobene did not believe that Ramirez was addicted, Ramirez did not demonstrate any signs of
narcotic bowel syndrome, which Dr. Carobene was not responsible for diagnosing and treating,
and Ramirez’s red-flag behavior in 2011 and 2012 did not make it foreseeable that she would
misuse her medication several years later in 2015. None of these arguments have merit.
¶ 40 First, because we are reviewing the Defendants’ motion for JNOV and, therefore, must view
the evidence in a light most favorable to the Estate as the non-moving party, it does not matter that
Dr. Carobene did not believe that Ramirez was addicted to hydrocodone. Rather, because the Estate
presented expert testimony from Dr. Bogunovic-Sotelo that Ramirez demonstrated symptoms of
opiate use disorder or addiction as early as January 2012, the jury could have found that Dr.
Carobene should have known by 2012 that Ramirez was addicted to her medication.
¶ 41 Second, in a similar vein, it does not matter for the purposes of a motion for JNOV that the
Defendants presented testimony that Ramirez did not have narcotic bowel syndrome since the
Estate presented conflicting expert testimony from Drs. Mehal and Engel explaining that she did.
And even though the Defendants argue that Dr. Carobene was not responsible for working up
Ramirez’s gastrointestinal issues, the Estate’s pain management expert, Dr. Engel, testified that
Dr. Carobene violated the standard of care by not diagnosing Ramirez’s narcotic bowel syndrome
and then discontinuing her hydrocodone prescription. As with the previous argument regarding
Ramirez’s addiction, the jury was entitled to disregard the testimony of the Defendants’ experts
and credit the contrary expert testimony put forth by the Estate.
¶ 42 Third, the passage of three years between Ramirez’s red-flag behavior in 2011 and 2012 and
her death from misuse of her medication in 2015 does not preclude Dr. Carobene’s violations
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of the standard of care from being the cause of Ramirez’s death. Among the ways that the Estate
alleged that Dr. Carobene violated the standard of care were by prescribing hydrocodone to
Ramirez at the outset of their relationship despite her history of doctor shopping and by continuing
to prescribe the drug to her in 2012 after Ramirez showed signs of misuse and addiction by
obtaining narcotics from other providers, asking for early refills of prescriptions, and submitting
negative urine screens. When we look at those particular allegations, we ask whether it was
reasonably foreseeable that prescribing hydrocodone to a patient who exhibits signs of misuse and
addiction might result in that patient misusing the drug in a lethal manner. The answer to that
question is yes.
¶ 43 The Defendants focus on the particular detail of Ramirez injecting the hydrocodone into
her PICC line and argue that such an act is not a likely result of Dr. Carobene prescribing the drug
to Ramirez. But, once again, that argument is premised on a reading of the facts that is favorable
to their position, and in the context of this motion for JNOV we must view the facts in a light most
favorable to the Estate. Therefore, we must accept the Estate’s evidence that Ramirez died from
acute hydrocodone toxicity, rather than from consequences of foreign material in her lungs. With
that being the case, the focus is not on whether it was foreseeable that a patient would inject her
medication into a PICC line, but rather whether it was foreseeable when Dr. Carobene prescribed
hydrocodone to Ramirez in 2011 and 2012 that a patient whose behavior raised, in Dr. Engel’s
words, “all of the red flags” suggesting abuse, misuse, and addiction would misuse her medication
in any manner and succumb to hydrocodone toxicity. We think that a reasonable jury could find
that it was, and that determination was for the jury to make. See Kerns v. Hoppe, 128 Nev. 910
(2012) (“A natural and logical consequence of continuing to provide highly addictive controlled
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substances prescriptions to a patient that is suspected of being an addict is that the patient would
abuse the drugs resulting in injury or death.”); Burroughs v. Magee, 118 S.W.3d 323, 338 (Tenn.
2003) (Holder, J., concurring in part) (opining that it was reasonably foreseeable that a truck driver
with a known history of drug abuse would misuse his medication and pose a danger to the public);
see also Mack v. Ford Motor Co., 283 Ill. App. 3d 52, 57 (1996) (“[W]here varying inferences are
possible, foreseeability is a question for the jury.”); Smith v. Minier, 2021-CA-01284-COA, 2023
WL 2381726, at *6 (Miss. Ct. App. Mar. 7, 2023), aff'd, 380 So. 3d 889 (Miss. 2024) (holding that
the foreseeability of a patient’s misuse of his medication was for the jury to determine).
¶ 44 Accordingly, the Estate presented sufficient evidence establishing that Dr. Carobene’s
violations of the standard of care were both the cause in fact and legal cause of Ramirez’s death,
and the circuit court, therefore, did not err in denying the Defendants’ motion for JNOV on that
issue.
¶ 45 In their second issue on appeal, the Defendants assert that the jury’s verdict in the Estate’s
favor was against the manifest weight of the evidence. However, as the Estate points out in its
brief, the Defendants did not raise this particular argument below. Indeed, in their posttrial motion
the Defendants only argued for JNOV on the grounds that the evidence was insufficient to establish
proximate cause, and they did not argue in any way that the verdict was against the manifest weight
of the evidence, which is a distinctly different argument. See Maple, 151 Ill. 2d at 453. As a result,
the Defendants have forfeited this issue. See Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 4, 1994) (“A
party may not urge as error on review of the ruling on the party’s post-trial motion any point,
ground, or relief not specified in the motion.”); Benford v. Everett Commons, LLC, 2014 IL App
(1st) 130314, ¶ 42 (“Plaintiff did not raise her argument that the jury verdict was against the
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manifest weight of the evidence in her posttrial motion. Accordingly, this argument is forfeited.”
(citing Bakes v. St. Alexius Medical Center, 2011 IL App (1st) 101646, ¶ 34)).
¶ 46 The Defendants’ third issue concerns the constitutionality of the PJI statute, which provides
for the assessment of prejudgment interest in personal injury and wrongful death cases. See 735
ILCS 5/2-1303(c) (West 2022). In particular, the Defendants contend that the PJI statute is
unconstitutional because it (1) impairs the right to a trial by jury, (2) violates the principle of equal
protection and the ban on special legislation, (3) intrudes on the judicial branch’s exclusive power
to administer justice according to the unique characteristics and circumstances of each case,
(4) was passed by the legislature without proper compliance with the Three Readings Rule (Ill.
Const. 1970, art. IV, § 8(d)), and (5) cannot be applied retroactively to a case that arose before the
statute took effect.
¶ 47 However, three appellate court panels have issued decisions engaging in comprehensive
analyses of these very same arguments, and all have found them to be without merit. See Galich
v. Advocate Health & Hospital Corp., 2024 IL App (1st) 230134, ¶¶ 57-85; Cotton v. Coccaro,
2023 IL App (1st) 220788, ¶¶ 40-70; First Midwest Bank v. Rossi, 2023 IL App (4th) 220643,
¶¶ 175-223. The Defendants in this appeal acknowledge those decisions but remind us that we are
free to reach a different conclusion. However, in doing so, the Defendants do not engage in any
analysis of the three decisions rejecting their arguments and they do not present an argument as to
why those cases were wrongly decided. Instead, they devote barely more than a page of their brief
to each alleged ground of unconstitutionality, essentially “cursory recantations of the exact
arguments that were rejected” in the prior decisions, which this court found to be insufficient and
a forfeiture of the argument in Wilcox v. Advocate Condell Medical Center, 2024 IL App (1st)
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230355, ¶ 119 (finding that a defendant’s argument that the PJI statute is unconstitutional was
forfeited when it presented cursory arguments and “[made] no attempt in its brief to discuss [Cotton
and Rossi] or to articulate any argument as to why their reasoning was flawed”). Because the
Defendants’ made such limited arguments and did not attempt to counter or address the prior
decisions, we likewise find this issue to have forfeited. See id. And even if it were not forfeited,
we are not persuaded by the Defendants’ cursory assertion that the prior decisions were wrongly
decided.
¶ 48 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 49 Affirmed.
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Jose Ramirez v. Holly Carobene, M.D. and Comprehensive Pain Care 2024 IL App (1st) 240203 _______________________________________________________________________________________
Appeal from the Circuit Court of Cook County, No. 21 L 9652, Honorable John H. Ehrlich, Judge Presiding
Appellants Attorneys: CUNNINGHAM, MEYER & VEDRINE, P.C. Thomas A. Lang Hannah K. Wiens 1 East Wacker Suite 2200 Chicago, Illinois 60602 Phone: (312) 578-0049
DONOHUE BROWN MATHEWSON & SMYTH LLC Scott L. Howie Jeffrey E. Eippert Charles W. Sprague 131 South Dearborn Street Suite 1600 Chicago, Illinois 60603 Phone: (312) 422-2501
Appellees Attorneys: YVETTE LOIZON, PATRICK F. BRADLEY, NICHOLOS T. MOTHERWAY CLIFFORD LAW OFFICES, P.C. 120 North LaSalle Street, Suite 3600 Chicago, IL 60602 Phone: (312) 899-9090
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