Smith v. MARVIN, MD

880 N.E.2d 1023, 377 Ill. App. 3d 562
CourtAppellate Court of Illinois
DecidedDecember 4, 2007
Docket3-06-0811
StatusPublished
Cited by24 cases

This text of 880 N.E.2d 1023 (Smith v. MARVIN, MD) 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
Smith v. MARVIN, MD, 880 N.E.2d 1023, 377 Ill. App. 3d 562 (Ill. Ct. App. 2007).

Opinion

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 plaintiffs 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 20% to 30%.

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 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 plaintiffs 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 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 both were unusual and remote consequences of plaintiffs 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 Instructions, Civil, No. 105.01 (2006) (hereinafter IPI). The trial judge refused plaintiffs request because he did not believe that instruction accurately stated the law. Defendants offered the 2005 versions of IPI Civil (2005) Nos. 105.01 and 105.02, which the trial court also refused. As a result, both plaintiff and defendants offered non-IPI instructions. The trial court submitted plaintiffs 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.

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Cite This Page — Counsel Stack

Bluebook (online)
880 N.E.2d 1023, 377 Ill. App. 3d 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-marvin-md-illappct-2007.