Tabe v. Ausman

902 N.E.2d 1153, 388 Ill. App. 3d 398
CourtAppellate Court of Illinois
DecidedFebruary 9, 2009
Docket1-07-0703
StatusPublished
Cited by18 cases

This text of 902 N.E.2d 1153 (Tabe v. Ausman) 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
Tabe v. Ausman, 902 N.E.2d 1153, 388 Ill. App. 3d 398 (Ill. Ct. App. 2009).

Opinion

JUSTICE GARCIA

delivered the opinion of the court:

In this medical malpractice case, the defendants, James Ausman, M.D., Ben Roitberg, M.D., and Tamin Hersonkey, M.D., appeal the order of the circuit court granting Henry Tabe a new trial, pursuant to Illinois Supreme Court Rule 306(a)(1) (210 Ill. 2d R. 306(a)(1)). The defendants contend the circuit court erred in granting a new trial because there was sufficient evidence to support the sole proximate cause instruction given to the jury and the “two-issue” rule, recognized in Strino v. Premier Healthcare Associates, 365 Ill. App. 3d 895, 850 N.E.2d 221 (2006), precludes review of the jury’s verdict in favor of the defendants where no special interrogatories were given to the jury. Because we agree with each of the defendants’ contentions, we reverse and remand with directions that the jury’s verdict be reinstated.

BACKGROUND

On June 23, 2000, the defendants performed a laminectomy procedure on the plaintiff. The laminectomy involved placing a fat graft into the plaintiffs spinal area to alleviate his chronic back pain. The procedure did not have the desired outcome, leaving the plaintiff with motor and sensory deficits.

The plaintiff sued the three surgeons who performed this procedure at the University of Illinois Hospital in Chicago: Dr. Ausman, a neurosurgeon; Dr. Roitberg, chief hospital resident at the time of the surgery; and Dr. Hersonkey, a second-year resident at the time of the surgery. The trial centered on the plaintiff’s claim that the defendant doctors negligently failed to perform a timely decompression procedure to preserve the plaintiffs spinal nerves and avoid other undesired results.

The jury trial lasted nine days. During the trial, extensive medical testimony from eight different physicians was presented, including testimony from each of the defendants. The plaintiff called three experts to testify: Dr. Robert Fink, a neurosurgeon; Dr. Sheldon Jordan, a neurologist; and Dr. Joel Meyer, a neuroradiologist. The defendants called one expert to testify, Dr. Dennis Maiman, a neurosurgeon who had performed more than 1,000 laminectomy procedures.

Dr. Ausman testified that in 1994 he successfully performed a laminectomy on the plaintiff and did not see him again until 2000, when he performed a second laminectomy, the one at issue here. After the procedure in 2000, the plaintiff began to experience numbness in his feet, back pain, diminished strength in his left leg and improper bladder function. Dr. Ausman testified an MRI was ordered to rule out cauda equina compression (nerve compression) as the cause of the plaintiff’s symptoms. Dr. Ausman admitted that if the plaintiff’s symptoms were caused by nerve compression, decompression surgery was necessary. An MRI was performed on the plaintiff a few days after the laminectomy. Dr. Ausman testified he does not specialize in reading MRI films and he often consults with a radiologist or neuroradiologist to review the MRI films. In his testimony, Dr. Ausman does not make clear whether he actually relied on the neuroradiologist’s reading of the MRI films in this case, but it is clear that he met with the neuroradiologist to discuss the plaintiff’s case, although the date of the meeting is unclear. The neuroradiologist that read the plaintiffs MRI films noted an encroachment of the plaintiffs spinal canal in his report. The author of the report was never identified beyond being a neuroradiologist at the University of Illinois Hospital. 1 Dr. Ausman also reviewed the MRI films and concluded the encroachment shown on the MRI films was not a compression. Dr. Ausman explained that he, and Drs. Roitberg and Hersonkey, found no evidence on the MRI films to explain the plaintiff’s postsurgical symptoms. Dr. Ausman opined that the plaintiffs symptoms were the result of normal inflammation and swelling following such a procedure, congenital narrowing of the plaintiffs spinal canal, scarring and weakness from his previous surgery, injuries from a recent car accident, and his diabetic condition. Dr. Ausman testified the fat graft did not contribute to the plaintiffs symptoms.

Drs. Roitberg and Hersonkey testified that they along with Dr. Ausman, with the neuroradiologist, acted as a “team” in determining the plaintiffs treatment plan, but that the ultimate responsibility for the patient’s care lay with Dr. Ausman. Neither Dr. Roitberg nor Dr. Hersonkey thought the MRI films of the plaintiff showed signs of nerve compression.

The defendants testified the neuroradiologist conferred with them regarding his opinion before they concluded there was no nerve compression and, therefore, no reason to justify further surgeries, such as a decompression procedure. The neuroradiologist’s MRI report, which the defendants reviewed in deciding the plaintiffs postoperative care, noted that the fat graft used in the surgery encroached on the spinal canal. The MRI report did not indicate that the graft was compressing the plaintiffs spinal nerves.

The plaintiffs experts, Dr. Robert Fink, a neurosurgeon; Dr. Sheldon Jordan, a neurologist; and Dr. Joel Meyer, a neuroradiologist, claimed the MRI films were “terrible.” The MRI films clearly showed the fat graft inserted by the defendants during the plaintiffs surgery was compressing his nerves. They opined that the defendants should have immediately performed decompression surgery to remove the pressure and avoid permanent nerve damage. Dr. Fink was the only expert to criticize the size of the fat graft used in the plaintiffs surgery.

Dr. Meyer and Dr. Fink admitted that it is within the standard of care for neurosurgeons to rely on the findings of a neuroradiologist and take such findings into account in creating a treatment plan. Dr. Fink admitted the neuroradiologist reviewing the plaintiffs MRI films made no mention of nerve compression.

Dr. Maiman, the defense expert, testified he reviewed the plaintiffs postsurgical MRI films and concluded they did not show any significant compression. Dr. Maiman concluded the defendants complied with the standard of care during their treatment of the plaintiff. Dr. Maiman opined, based on the circumstances presented by the plaintiff after the laminectomy, that decompression surgery was not required. He also attributed the plaintiffs symptoms to normal inflammation and swelling following the procedure, the plaintiffs diabetic condition, and his weakened nerves from his procedure in 1994.

At the close of the evidence, the defendants persuaded the circuit court to give the long form of Illinois Pattern Jury Instructions, Civil, No. 12.04 (2006) (sole proximate cause instruction) (IPI), over the plaintiffs objection. The long form includes the second paragraph of the instruction. The instruction informed the jury:

“More than one person may be to blame for causing an injury. If you decide that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

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Bluebook (online)
902 N.E.2d 1153, 388 Ill. App. 3d 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tabe-v-ausman-illappct-2009.