No. 3-06-0811 _________________________________________________________________ Filed December 4, 2007 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
MARY P. SMITH, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit Plaintiff-Appellee. ) Will County, Illinois ) v. ) ) No. 03-L-517 JOY D. MARVIN, M.D. and ) SURGICAL CONSULTANTS OF ) JOLIET, LTD., ) Honorable ) James E. Garrison Defendants-Appellants. ) Judge Presiding _________________________________________________________________
PRESIDING JUSTICE LYTTON delivered the Opinion of the court: _________________________________________________________________
Plaintiff, Mary P. Smith, sued defendants, Dr. Joy Marvin and
Surgical Consultants of Joliet, Ltd., for medical malpractice. In
the first count of her complaint, plaintiff alleged that Dr. Marvin
negligently performed surgery on her. The second count alleged
that Dr. Marvin did not properly advise plaintiff of the risks of
surgery. The jury found in favor of plaintiff on both counts and
awarded her $2 million in damages, including $1 million in lost
earnings. On appeal, defendants argue that (1) the trial court
erred in giving certain jury instructions, and (2) the evidence did
not support the jury's verdict on either count of plaintiff's
complaint or its award of lost earnings to plaintiff. We affirm.
BACKGROUND
In 2001, plaintiff consulted her primary care physician, Dr.
Robert Ireland, after she noticed a swollen area in her right
armpit. Dr. Ireland referred plaintiff to Dr. Marvin, who ordered an ultrasound and mammogram. The ultrasound and mammogram showed
that the mass was not cancerous. Nevertheless, Dr. Marvin
recommended surgically removing it. Dr. Marvin did not discuss
with plaintiff any alternatives to surgery, such as a biopsy or
observation. Dr. Marvin informed plaintiff that the risks
associated with the surgery included bleeding and infection but did
not warn plaintiff that she may develop lymphedema or Reflex
Sympathetic Dystrophy Syndrome (RSD) as a result of the surgery.
Dr. Marvin performed the surgery and removed the mass, which
was benign. According to Dr. Marvin, she did not enter the deep
axillary space (or "axilla proper") or otherwise violate the
standard of care when she performed surgery on plaintiff. Dr.
Marvin testified that she did not advise plaintiff of the risks of
developing lymphedema or RSD as a result of the surgery because
those risks were remote. She did state that the risk of lymphedema
when entering the axilla proper is quite high, approximately twenty
to thirty percent.
Soon after the surgery, plaintiff developed a seroma, which is
a gathering of fluid beneath the skin. Plaintiff then developed lymphedema, which is fluid retention caused by a damaged lymphatic
system. Finally, plaintiff developed RSD. As a result of these
conditions, plaintiff has pain and decreased mobility in her right
arm.
Plaintiff filed a two-count complaint against Dr. Marvin and
Surgical Consultants. According to Count I, Dr. Marvin, as an
agent of Surgical Consultants, was negligent because she (a)
removed excess tissue during surgery, (b) failed to perform a
biopsy prior to surgery, and (c) used inappropriate suture
2 ligatures. Count II alleged that Dr. Marvin was negligent for
failing to inform plaintiff of the risks of the surgery.
Plaintiff testified that after her surgery she was unable to
return to her previous employment as a project manager at Hewitt
Associates because of the condition of her arm. At that job,
plaintiff was paid an annual salary of $46,000 and would receive
3.5% annual pay raises up to a maximum salary of $54,000. Prior to
surgery, plaintiff intended to work at Hewitt until she was 65
years old. After her surgery, she tried to seek employment
elsewhere by mailing out resumes but received no responses.
Plaintiff also considered other occupations but felt she could not
perform them effectively because of the pain and drowsiness she
experienced.
Dr. Phillip Greenberg, a neurologist, testified on behalf of
plaintiff. He concluded that plaintiff suffered from RSD, caused
by Dr. Marvin removing too much tissue during the surgery. He
testified that the more resection that occurs in the axilla, the
more likely it is for a patient to develop lymphedema. According
to Dr. Greenberg, plaintiff will experience pain in her arm for the
rest of her life and will become totally disabled because of her inability to use her right arm.
Dr. Michael Drew, a surgeon, testified that the procedure
performed by Dr. Marvin was too radical and was not properly
performed. Based on the medical records and plaintiff’s injuries,
Dr. Drew believed that Dr. Marvin entered the deep regions of the
axilla. He testified that Dr. Marvin deviated from the standard of
care by using suture ligatures in the axilla, which caused or
contributed to plaintiff developing lymphedema and RSD. He also
3 opined that plaintiff was not properly informed of the
complications that could result from the surgery, including
lymphedema and RSD.
Dr. John Paul Sorin, a specialist in internal medicine,
testified that plaintiff’s lymphedema was a permanent condition
resulting from the surgery performed by Dr. Marvin. Dr. Sorin
concluded that plaintiff would have pain in the future as a result
of lymphedema.
Dr. Robert Ireland found that plaintiff had lymphedema as a
result of the surgery Dr. Marvin performed. He testified that
plaintiff is partially disabled because she has difficulty using
her right arm.
Testifying on behalf of defendants was Dr. David Shenker, a
neurologist. According to Dr. Shenker, the medical causes of
lymphedema and RSD are unclear. He agreed that plaintiff developed
RSD from the surgery, but he did not know why. He testified that
there is no way to know if plaintiff’s RSD will totally deprive her
of the use of her arm.
Dr. Steven Bines, a surgical oncologist, testified that Dr. Marvin did not enter the axilla proper during plaintiff’s surgery.
He opined that Dr. Marvin met the surgical standard of care in her
treatment of plaintiff. He also testified that Dr. Marvin was not
required to warn plaintiff of lymphedema or RSD because they were
unusual and remote consequences of plaintiff's surgery.
At trial, the parties disagreed about what instruction should
be given to the jury to explain professional negligence. Plaintiff
requested that the trial court use the 2006 version of Illinois
Pattern Jury Instruction (I.P.I.) 105.1. The trial judge refused
4 plaintiff's request because he did not believe that instruction
accurately stated the law. Defendants offered the 2005 versions of
I.P.I. 105.1 and I.P.I. 105.2, which the trial court also refused.
As a result, both plaintiff and defendants offered non-I.P.I.
instructions. The trial court submitted plaintiff’s proposed
instruction to the jury:
"'Professional negligence' by a general surgeon is the
failure to do something that a reasonably well-qualified
general surgeon would do, or the doing of something that
a reasonably well-qualified surgeon would not do, under
the circumstances similar to those shown by the evidence.
In providing professional services, a general surgeon
must possess and apply the knowledge and use the skill
and care ordinarily used by a reasonably well-qualified
general surgeon under the circumstances similar to those
shown by the evidence. A failure to do so is
professional negligence.
The phrase 'deviation from the standard of care' means
the same thing as 'professional negligence.' To determine the standard of care in this case, you must
rely upon opinion testimony from expert witnesses. The
law does not say how a reasonably well-qualified general
surgeon would act under these circumstances. That is for
you to decide after basing your decision on the evidence
presented through expert witnesses presented at trial.
You must not attempt to determine this question from any
personal knowledge that you may have."
The parties also disagreed on a proximate cause instruction.
5 Plaintiff offered the long form of I.P.I. 15.01 to the court, while
defendant offered the short form of that instruction. The trial
court allowed the long form, as set forth below, to be given to the
jury:
"When I use the expression 'proximate cause', I mean a
cause which, in natural or probable sequence, produced
the injury complained of. It need not be the only cause,
nor the last or nearest cause. It is sufficient if it
concurs with some other cause acting at the same time,
which in combination with it, causes the injury."
In closing argument, plaintiff’s attorney requested a verdict
in plaintiff’s favor, including lost earnings totaling $1,450,000.
That figure was based on plaintiff’s salary prior to her surgery
and assumed that plaintiff would receive annual pay raises up to a
maximum annual salary of $54,000 and also assumed that plaintiff
would work until she was 65 years old.
The jury returned a verdict for plaintiff and against
defendants on both counts of plaintiff’s complaint. The jury
awarded plaintiff $1 million for lost earnings, $500,000 for pain and suffering, and $500,000 for loss of normal life.
I. JURY INSTRUCTIONS
The determination of proper jury instructions rests with the
sound discretion of the trial court and will not be disturbed
absent a clear abuse of discretion. Surestaff, Inc. v. Azteca
Foods, Inc., 374 Ill. App. 3d 625, 627, 872 N.E.2d 428, 446 (2007).
"Whenever Illinois Pattern Jury Instructions (I.P.I.) contains
an instruction applicable to a civil case, giving due consideration
to the facts and the prevailing law, and the court determines that
6 the jury should be instructed on the subject, the I.P.I.
instruction shall be used, unless the court determines that it does
not accurately state the law." 177 Ill.2d Rule 239(a) (1999).
I.P.I. instructions should be modified if they do not accurately
state the law. Ruperd v. Ryan, 291 Ill. App. 3d 22, 36, 683 N.E.2d
166, 175 (2d Dist. 1997).
In determining the propriety of tendered instructions, a
reviewing court must consider whether the jury was fairly, fully
and comprehensively informed as to the relevant legal principles.
Campbell v. Wagner, 303 Ill. App.3d 609, 611, 708 N.E.2d 539, 541
(1999); Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 692
N.E.2d 1303 (1998). The refusal to give an instruction will result
in a new trial only when the refusal amounts to a serious
prejudice to a party's right to a fair trial. Dahan, 295 Ill. App.
3d at 777, 692 N.E.2d at 1308.
A. Professional Negligence Instruction
Defendants argue that they are entitled to a new trial because
the trial court improperly provided the jury with the plaintiff's
non-I.P.I. instruction regarding professional negligence. According to defendants, the instruction was internally
inconsistent, misleading and confusing to jurors.
The trial judge in this case refused plaintiff's request to
provide the 2006 version of I.P.I. 105.1 because he didn’t think it
"state[d] the law accurately." Specifically, he believed that it
misled jurors into believing that they could use their own
experiences in assessing the standard of care. He concluded that
the 2005 version of I.P.I. 105.1 was more appropriate and should be
used in combination with the 2006 version of the instruction
7 because the 2005 version had been approved by the Supreme Court and
accurately stated that the jury could determine the standard of
care only by relying on expert testimony. The instruction the
trial court approved was a hybrid of the 2005 and 2006 versions of
I.P.I. 105.1, along with the addition of one portion of a sentence
telling jurors to determine the standard of care "after basing your
decision on the evidence presented through expert witnesses
presented at trial."
Based on our review of the instruction given, we disagree with
defendants’ assertion that it is misleading, confusing or
inconsistent. It clearly and accurately instructs the jury to
determine the standard of care based on expert testimony. This is
a correct statement of the law. See Pantaleo v. Our Lady of
Resurrection Medical Center, 297 Ill. App. 3d 266, 281, 696 N.E.2d
717, 727 (1998) (jury determines standard of care from expert
testimony). Because the instruction accurately and fairly states
the law, defendants cannot establish that the instruction
prejudiced them, requiring a new trial. See Dahan, 295 Ill. App.
3d at 777, 692 N.E.2d at 1308. B. Proximate Cause Instruction
Defendants contend that they are entitled to a new trial
because the trial court improperly instructed the jury regarding
proximate cause. According to defendants, the trial court should
have provided jurors with the short form of I.P.I. 15.01 because
the only alleged cause of plaintiff's injury was defendants’
negligence.
The long form of I.P.I. 15.01 is proper where there is
evidence that something or the acts of someone other than the
8 defendant was a proximate cause of the injury. See Dahan v. UHS of
Bethesda, Inc., 295 Ill. App. 3d 770, 692 N.E.2d 1303 (1998); Heitz
v. Hogan, 134 Ill. App. 3d 352, 480 N.E.2d 185 (1985); St. Clair v.
Douvas, 21 Ill. App. 2d 444, 158 N.E.2d 642 (1959). In Chambers v.
Rush-Presbyterian-St. Luke’s Medical Center, 155 Ill. App. 3d 458,
467, 508 N.E.2d 426, 432 (1987), the court found that it was proper
for the trial court to use the long form instruction where the
defendants argued that something other than their negligence (i.e.,
cancer) caused the plaintiff’s death.
Even if there is no evidence that something or someone other
than defendants may have contributed to a plaintiff’s injury,
courts are reluctant to find that the long form of the instruction
prejudiced a party. See, e.g., Drake v. Harrison, 151 Ill. App. 3d
1082, 503 N.E.2d 1072 (1987); Shiner v. Friedman, 161 Ill. App. 3d
73, 513 N.E.2d 1295 (1987). According to the Comments to I.P.I.
15.01, "it will rarely be error to give the long form of the
instruction."
Here, defendants claimed that something other than their
negligence (i.e., the seroma) contributed to plaintiff’s injuries. Thus, it was proper for the trial court to use the long form of
I.P.I. 15.01. See Chambers, 155 Ill. App. 3d at 467, 508 N.E.2d at
432. Additionally, the trial court’s use of the long form was not
an abuse of discretion because it did not prejudice defendants.
See Drake, 252 Ill. App. 3d 1082, 503 N.E.2d 1072; Shiner, 161 Ill.
App. 3d 73, 513 N.E.2d 1295; I.P.I. 15.01 Comments.
II. SUFFICIENCY OF THE EVIDENCE
A judgment notwithstanding the verdict (JNOV) is a question of
law that appellate courts review de novo. Bergman v. Kelsey, ___
9 Ill. App. 3d ___, 873 N.E.2d 486, 497 (2007). The standard for
obtaining a JNOV is very difficult to meet. Bergman, ___ Ill. App.
3d ___, 873 N.E.2d at 497. A JNOV is properly entered only if all
the evidence, when viewed in a light most favorable to the
opponent, so overwhelmingly favors the movant that no contrary
verdict based on that evidence could ever stand. Barth v. State
Farm Fire and Casualty Co., 371 Ill. App. 3d 498, 507, 867 N.E.2d
1109, 1118 (2007). In ruling on a motion for JNOV, a court does
not weigh the evidence or make credibility determinations. Barth,
371 Ill. App. 3d at 507, 867 N.E.2d at 1118. A JNOV should not be
granted if reasonable minds could differ as to inferences or
conclusions to be drawn from the evidence presented. Barth, 371
Ill. App. 3d at 508, 867 N.E.2d at 1118.
A request for a new trial will be granted only if the jury's
verdict is against the manifest weight of the evidence. See
Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 803, 776
N.E.2d 262, 300 (2002). A verdict is against the manifest weight
of the evidence only if it is unreasonable, arbitrary and not based
on evidence, or when the opposite conclusion is clearly apparent. Bachman, 332 Ill. App. 3d at 803, 776 N.E.2d at 300. It is the
province of the jury to resolve conflicts in the evidence, to pass
on the credibility of witnesses, and to decide what weight to give
to the witnesses' testimony. Maple v. Gustafson, 151 Ill. 2d 445,
452, 603 N.E.2d 508, 511-12 (1992).
A. Count I
Defendants contend that they are entitled to a JNOV with
respect to Count I because it was not reasonably foreseeable that
RSD or lymphedema would result from plaintiff’s surgery.
10 Defendants also assert that the jury's verdict was against the
manifest weight of the evidence because the evidence fails to prove
that defendants breached the standard of care.
The proximate cause of an injury is ordinarily a question of
fact, to be determined by the jury from a consideration of all the
evidence and attending circumstances. Hooper v. County of Cook,
366 Ill. App. 3d 1, 7, 851 N.E.2d 663, 669 (2006); Casey v. Burns,
7 Ill. App. 2d 316, 326, 129 N.E.2d 440, 445 (1955). The two
requirements for a showing of proximate cause are cause in fact and
legal cause. Hooper, 366 Ill. App. 3d at 7, 851 N.E.2d at 669.
Legal cause is established if an injury was foreseeable as the type
of harm that a reasonable person would expect to see as a likely
result of his or her conduct. Hooper, 366 Ill. App. 3d at 7, 851
N.E.2d at 669. Legal cause is not established where the causal
connection is contingent, speculative or merely possible. See
Mengelson v. Ingalls Health Ventures, 323 Ill. App. 3d 69, 75, 751
N.E.2d 91, 96 (2001) (plaintiff failed to prove proximate cause
where testimony showed the possibility of contracting RSD from
defendant’s breach of the standard of care was 1 in 6 million). Here, there was testimony that Dr. Marvin breached the
standard of care in several regards, including taking more tissue
than was necessary during plaintiff's surgery. Dr. Greenberg and
Dr. Drew testified that taking too much tissue from the axilla
could cause major complications, including lymphedema and RSD.
Even Dr. Marvin admitted that improperly performing the surgery
could result in lymphedema twenty to thirty percent of the time.
Based on the testimony presented, the jury had sufficient evidence
from which to conclude that Dr. Marvin breached the standard of
11 care and that her breach proximately caused plaintiff’s injury.
B. Count II
Defendants argue that the jury's verdict on Count II is
against the manifest weight of the evidence because lymphedema and
RSD were unforeseeable risks of the surgery. Additionally, they
argue that plaintiff failed to provide sufficient evidence that she
would have refused the procedure if she had been warned of the
risks.
A physician has a duty to inform patients of the foreseeable
risks and results of a given surgical procedure, and the reasonable
alternatives to such procedure. Guebard v. Jabaay, 117 Ill. App. 3d
1, 6, 452 N.E.2d 751, 755 (1983). The failure of the physician to
conform to the professional standard of disclosure must be proved
by expert medical evidence, and failure to disclose must
proximately cause plaintiff's injury. Guebard, 117 Ill. App. 3d at
6, 452 N.E.2d at 755.
No expert testimony is necessary to establish proximate
causation in an informed consent case. See Coryell v. Smith, 274
Ill. App. 3d 543, 546, 653 N.E.2d 1317, 1319 (1995). Proximate causation is determined by an objective standard, what a prudent
person in plaintiff’s position would have decided if adequately
informed. Guebard, 117 Ill. App. 3d at 10, 452 N.E.2d at 757.
Whether a failure to disclose would have changed plaintiff’s
decision to have the surgery is a question for the jury. See
Coryell, 274 Ill. App.3d at 550, 653 N.E.2d at 1322 (because the
issue of proximate causation in an informed consult case relates to
what a person of ordinary prudence would do under the
circumstances, members of the jury can determine whether a prudent
12 person would have proceeded with the proposed treatment). If
disclosure would have caused a reasonable person in the position of
the patient to refuse the surgery, a causal connection is shown.
Guebard, 117 Ill. App. 3d at 10, 452 N.E.2d at 757.
Here, there was expert testimony from Dr. Drew that Dr. Marvin
did not properly disclose to plaintiff all of the risks of the
procedure, including lymphedema and RSD. According to Dr. Drew, a
reasonable medical professional in Dr. Marvin's circumstances would
have done so. Thus, plaintiff properly established that the risks
of lymphedema and RSD were not unforeseeable and should have been
disclosed to plaintiff prior to her surgery.
Although there was no expert testimony that plaintiff would
not have undergone the surgery had she been properly informed of
the risks, no expert testimony on that issue was necessary.1 See
Coryell, 274 Ill. App. 3d at 546, 653 N.E.2d at 1319. Rather, it
was for the jury to determine, based on an objective standard, if
a person in plaintiff's position would have decided to undergo the
surgery had she been fully advised of all of the risks and
alternatives. See Guebard, 117 Ill. App. 3d at 10, 452 N.E.2d at 757.
In this case, Dr. Marvin testified that she did not suspect
that the growth in plaintiff's armpit was cancerous based on the
1 Defendants assert that plaintiff was required to provide "objective evidence" that she would not have consented to the procedure had she been adequately informed of the risks, citing Zalazar v. Vercimak, 261 Ill. App. 3d 250, 633 N.E.2d 1223 (1993) and Lowney v. Arciom, 232 Ill. App. 3d 715, 597 N.E.2d 817 (1992). To the extent that those cases can be interpreted to require expert testimony that a reasonable person in the plaintiff's position would have refused the procedure had she been informed of all the risks, we hereby reject them.
13 negative ultrasound and mammogram. Nevertheless, Dr. Marvin
recommended surgically removing the mass without explaining to
plaintiff the risks of surgery, including lymphedema and RSD.
Based on this evidence, the jury could have reasonably concluded
that plaintiff would not have chosen to have the mass surgically
removed had she been adequately informed of the risks.
C. Lost Earnings
Defendants argue that the jury's award of $1 million in lost
earnings to plaintiff was against the manifest weight of the
evidence because plaintiff did not establish that she could not
work as a result of her injury.
Generally, the measure of damages for impairment of earning
capacity is the difference between the amount which the plaintiff
was capable of earning before her injury and that which she is
capable of earning after the injury. Patel v. Brown Machine Co.,
264 Ill. App. 3d 1039, 1061, 637 N.E.2d 491, 505 (1994). A
plaintiff may testify that her injuries diminished her capacity to
work, and the general rule is that the appearance of the plaintiff
on the witness standard, her testimony as to the nature of her injuries and their duration is sufficient to take the question of
impaired earning capacity to the jury. Patel, 264 Ill. App. 3d at
1061, 637 N.E.2d at 505. A jury may award future lost wages if the
record reflects that plaintiff sustained a permanent injury that
prevents her from being employed. Mikus v. Norfolk and Western Ry.
Co., 312 Ill. App. 3d 11, 726 N.E.2d 95 (2000).
Here, Dr. Greenberg testified that plaintiff will be totally
disabled as a result of the injuries she sustained from the surgery
Dr. Marvin performed. Plaintiff testified that she was unable to
14 return to her previous employment as a result of the surgery and
was unable to obtain new employment since the surgery. She also
testified that her pain and pain medication make her unable to
work. No one refuted that evidence. Based on the evidence
presented, the jury’s award of lost earnings was not against the
manifest weight of the evidence.
III. CONCLUSION
The order of the circuit court of Will County is affirmed.
Affirmed. CARTER and MCDADE, JJ., concurring.