Walton v. Dirkes

903 N.E.2d 18, 388 Ill. App. 3d 58
CourtAppellate Court of Illinois
DecidedJanuary 27, 2009
Docket1-08-0461
StatusPublished
Cited by15 cases

This text of 903 N.E.2d 18 (Walton v. Dirkes) 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
Walton v. Dirkes, 903 N.E.2d 18, 388 Ill. App. 3d 58 (Ill. Ct. App. 2009).

Opinion

JUSTICE WOLFSON

delivered the opinion of the court:

The question in this medical malpractice case is whether the plaintiff presented enough evidence to establish a causal connection between the defendant doctor’s negligent failure to order a certain blood test and the death of Trevor Walton. The jury thought so, but the trial judge entered a judgment notwithstanding the jury’s verdict. We reverse the trial judge’s decision and remand this cause for a hearing on any remaining posttrial issues.

FACTS

On April 5, 1999, Trevor Walton went to defendant Dr. Richard Dirkes, his primary care physician, complaining of congestion and a sore throat for the past three weeks. Walton had puffy nasal membranes, no swollen lymph nodes, and his lungs were clear. Defendant told Walton he probably either had allergies or a viral infection. Walton was instructed to call if his symptoms persisted or increased in severity after three days. Defendant did not order a complete blood count (CBC).

On May 3, 1999, Walton returned to defendant’s office complaining of new symptoms, including blood-tinged mucus, pain in his side, abdomen and shoulders, bumps on his head, and difficulty breathing and sleeping. Defendant was diagnosed with chronic rhinitis with pharyngitis — inflammation of the throat. Defendant did not order a CBC.

On May 8, 1999, Walton was taken to Loyola University Hospital’s emergency department and treated by Dr. Margaret Grano. Dr. Grano ordered a CBC, which revealed Walton had a white blood cell count of over 540,000. The normal range for white blood cells in a healthy human adult is between 5,000 and 10,000. After Dr. Grano consulted with Dr. John Godwin, a hematologist at Loyola, defendant was diagnosed with acute lymphoblastic leukemia (ALL). An emergency leukophoresis treatment lowered Walton’s white blood cell count to around 80,000. Walton died of cardiac arrest related to ALL on May 9, 1999.

Leah Walton, administrator of Trevor Walton’s estate, filed a medical malpractice lawsuit, alleging defendant negligently failed to order a CBC on April 5, 1999, and May 3, 1999. Following a jury trial, plaintiff was awarded $3,627,113 in damages. In his posttrial motion, defendant moved for judgment notwithstanding the verdict, or, in the alternative, a new trial.

The trial court entered judgment notwithstanding the verdict in defendant’s favor, finding:

“Here, plaintiff presented no testimony as to what type of specialist should have been consulted to review the CBC results nor was there any testimony as to what that specialist would have seen in the hypothetical CBC results that would indicate ALL. No medical expert testified how a CBC interpreted by anyone would indicate that decedent had ALL. A lack of testimony linking Dr. Dirkes’ failure to do a CBC with expert testimony indicating how a diagnosis of ALL could be made from a CBC taken on April 5, 1999, or on May 3, 1999, creates a gap in the evidence of proximate cause fatal to plaintiff’s case. Without the testimony discussed above, Dr. Brown’s bare assertion that Dr. Dirkes’ failure to do a CBC at either office visit caused harm to Trevor Walton is mere conjecture. Therefore, plaintiff failed to prove proximate causation, an essential element of plaintiffs prima facie case, and judgment notwithstanding the verdict is proper.”

DECISION

I. Judgment Notwithstanding the Verdict

Plaintiff contends the trial court erred in entering a judgment notwithstanding the verdict in defendant’s favor. Specifically, plaintiff contends the expert testimony contained in the record sufficiently supported the jury’s verdict.

Judgment non obstante veredicto, or judgment n.o.v., is appropriate where “ ‘all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.’ ” Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406, 408, 741 N.E.2d 1055 (2001), quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). Judgment n.o.v. is appropriate if plaintiff fails to prove an essential element of a negligence action, including proximate cause. Townsend, 318 Ill. App. 3d at 408; Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 102, 733 N.E.2d 726 (2000). Our review of an order granting judgment n.o.v. is de novo. Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 972, 691 N.E.2d 1 (1997).

A plaintiff in a medical malpractice case must prove: “(1) the standard of care against which the medical professional’s conduct must be measured; (2) the defendant’s negligent failure to comply with that standard; and (3) the defendant’s negligence proximately caused the injuries for which the plaintiff seeks redress.” Sunderman v. Agarwal, 322 Ill. App. 3d 900, 903, 750 N.E.2d 1280 (2001). The central issue in this case turns on whether plaintiff adequately established defendant’s allegedly negligent failure to order a CBC was a proximate cause of Walton’s injuries.

Proximate cause must be established by expert testimony to a reasonable degree of medical certainty. Susnis v. Radfar, 317 Ill. App. 3d 817, 826-27, 739 N.E.2d 960 (2000); Aguilera, 293 Ill. App. 3d at 975. Any causal connection between treatment, or a delay in treatment, and the claimed injury must not be “contingent, speculative, or merely possible.” Aguilera, 293 Ill. App. 3d at 976. While the plaintiffs burden of proof remains the same, our supreme court has recognized proximate cause may be established by evidence that the defendant’s negligent conduct “increased the risk of harm” to the patient or “lessened the effectiveness” of the patient’s treatment. Holton v. Memorial Hospital, 176 Ill. 2d 95, 104-05, 679 N.E.2d 1202 (1997).

In Aguilera, we considered whether the plaintiff failed to present any evidence of proximate cause in a wrongful death medical malpractice action. Aguilera visited an emergency room with complaints of numbness on the left side of his body. He began suffering seizures shortly after being admitted to the hospital. A CT scan revealed a massive cerebral hemorrhage. Aguilera lapsed into a coma and died three days later. At trial the plaintiff, Aguilera’s wife, offered testimony from two expert witnesses that the emergency room physician should have ordered an immediate CT scan, given Aguilera’s condition.

Dr. Hamilton, the emergency medicine expert, testified the delayed CT scan “definitely related” to Aguilera’s death. Aguilera, 293 Ill. App. 3d at 969. Dr.

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903 N.E.2d 18, 388 Ill. App. 3d 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walton-v-dirkes-illappct-2009.