Wilson v. University of Chicago Medical Center

2023 IL App (1st) 230078

• Court: Appellate Court of Illinois
• Decided: December 22, 2023
• Docket: 1-23-0078
• Status: Published

Opinion

2023 IL App (1st) 230078 No. 1-23-0078 Opinion filed December 22, 2023 Sixth Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

) ) Appeal from the Circuit Court CHERYL WILSON, ) of Cook County. ) Plaintiff-Appellant, ) ) No. 18 L 7017 v. ) ) UNIVERSITY OF CHICAGO MEDICAL ) The Honorable CENTER, ) Preston Jones, Jr. ) Judge, presiding. Defendant-Appellee. )

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment and opinion.

OPINION

¶1 Cheryl Wilson sued the University of Chicago Medical Center (UCMC), alleging medical

malpractice. Wilson claims two UCMC cardiac surgeons, Dr. John Blair and Dr. Atman Shah,

breached their duty of care when they punctured the left atrium while repairing her mitral valve.

UCMC moved for summary judgment, arguing Wilson failed to call an expert witness to

establish that UCMC deviated from the standard care.

¶2 After a hearing, the trial court granted UCMC’s motion. Wilson contends the trial court

erred because the deposition testimony of Dr. Blair and Dr. Shah provided sufficient evidence 1-23-0078

to establish a genuine issue of material fact as to the standard of care. We disagree and affirm.

Wilson had the burden of establishing the standard of care and its breach, and the deposition

testimony of Dr. Blair and Dr. Shah do not enunciate a standard of care. Moreover, without

relying on expert testimony, a layperson would have no way of determining negligence.

Finally, Wilson fails to show where Dr. Blair and Dr. Shah deviated from professional

standards.

¶3 Background

¶4 Two UCMC cardiologists, Dr. Blair and Dr. Shah, performed a MitraClip procedure to

repair a life-threatening heart condition caused by a leaky mitral valve. In a closed-heart

procedure, the surgeon passes a clip, or MitraClip, through the patient’s vein and into the

heart’s left atrium. To place the MitraClip, the surgeon uses a needle to open the septum so the

clip can pass through to the left side of the heart. While operating on Wilson, Dr. Blair

controlled the needle and the placement of the clip; Dr. Shah operated a transesophageal

echocardiography (TEE) probe, an ultrasound that provides images of the heart. The outer wall

of Wilson’s left atrium was perforated during the procedure.

¶5 Wilson’s complaint alleges Dr. Blair and Dr. Shah deviated from the standard of care by

using undue force when passing the needle through the septum, causing the puncture. To

support her claim, Wilson pointed to UCMC’s operative report, which stated, in part, that the

perforation occurred “during attempted MitraClip for severe mitral regurgitation [when] the

transseptal [needle] inadvertently punctured the left atrial free wall.” She also noted that

UCMC’s TEE echo report stated that “[i]maging revealed [the] transeptal needle likely

perforated the left atrial free wall.”

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¶6 In their depositions, neither Dr. Blair nor Dr. Shah testified that the transseptal needle

caused the perforation. According to Dr. Blair, he did not believe the needle could have caused

the puncture because “the leading edge of the [transeptal] sheath is not sufficient to puncture”

the outer wall of the heart. Dr. Blair did, however, believe that the larger sheath used during

the procedure, which carries the MitraClip, could have perforated Wilson’s left atrium. He

further explained that the medical records’ reference to the perforation occurring “during the

transseptal puncture” referred to the entire procedure. Dr. Shah agreed, testifying that the

MitraClip sheath could have caused the complication. He explained that they could see the

sheath carrying the needle during the procedure, and it “did not come into contact with the wall

of the left atrium.” Both doctors testified that a puncture to the left wall of the atrium is a

known complication of MitraClip procedures that can occur when a physician uses a

reasonable degree of care.

¶7 Wilson also relied on the deposition testimony of her fiancé, Larry Sobel, to show Dr. Blair

and Dr. Shah breached the standard of care. Sobel testified that after the surgery, Dr. Blair

apologized and said he made a mistake. Sobel claimed Dr. Blair said, “some people have a

hole in the septum, some people don’t. I was trying to push, push too hard, you know.” Wilson

similarly testified that Dr. Blair said to her, “I’m very sorry that this happened. *** I take full

responsibility. I know it was my fault.” Neither Sobel nor Wilson testified that Dr. Blair

indicated what equipment caused the perforation.

¶8 In his deposition, Dr. Blair did not recall the words he used during these conversations. Dr.

Blair explained to Sobel that damage to the left atrial wall was a known complication but could

not speculate on specifics.

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¶9 During the procedure, UCMC was testing a Siemens TEE echo machine. Wilson argued

that Dr. Blair and Dr. Shah could not properly visualize the procedure because they switched

from Siemens to the hospital’s Phillips machine. Dr. Shah’s testimony does not indicate that

this switch impaired their ability to visualize the procedure. He said TEE echo machines do

not always provide perfect visuals, and sometimes parts of a heart cannot be seen. Dr. Robert

Lang, who watched the TEE imaging during the procedure, testified in his deposition that he

believed the switch occurred after they noticed a complication and not before. Dr. Lang said

the decision to switch machines complied with the standard of care and did not cause the

complication.

¶ 10 Instead of presenting an expert witness, Wilson relied on the deposition testimony of Dr.

Blair and Dr. Shah to establish the standard of care. Wilson noted that Dr. Blair testified that

“a reasonable doctor will use TEE, fluoroscopy, and even Detrol pressure measurement” to

mitigate risk during a MitraClip procedure. Wilson also pointed to Dr. Shah’s deposition

testimony that physicians performing a MitraClip procedure have a duty to use reasonable care

to avoid perforating the outer wall of the left atrium.

¶ 11 Likewise, Dr. Blair testified that physicians must use “the appropriate amount of force”

during the procedure and rely on machines to help visualize the procedure and pressure

measurements to avoid complications. In response, UCMC argued that Dr. Shah testified that

while a lack of care could increase the chance of complications, a puncture of the left atrium

could occur even when “a physician uses all the care that he or she tries to muster.”

¶ 12 Following discovery, UCMC moved for summary judgment, arguing Wilson failed to

present sufficient evidence, including the testimony of an expert witness, to show Dr. Blair and

Dr. Shah deviated from the standard of care. Wilson responded that expert witness testimony

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was unnecessary because Dr. Blair’s and Dr. Shah’s deposition testimony established the

standard of care. Wilson further asserted a reasonable fact finder could conclude, based on this

testimony, that the physicians breached the standard of care. Wilson’s arguments focused on

the testimony regarding the pressure used by Dr. Blair while placing the transeptal sheath and

the switch between the machines.

¶ 13 After a hearing, the trial court entered a final order granting UCMC’s motion for summary

judgment, stating its reasons on the record. Wilson failed to provide a transcript of the hearing.

¶ 14 Analysis

¶ 15 Illinois Supreme Court Rule 341(h)(6)

¶ 16 As an initial matter, UCMC asks us to strike Wilson’s statement of facts for failing to

comply with Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020) as improper in form,

argumentative, misstating material facts, and failing to cite to the common law record properly.

¶ 17 Rule 341(h)(6) requires a statement of facts to be accurate and fairly presented “without

argument or comment, and with appropriate reference to the pages of the record on appeal.”

Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). Dismissal of an appeal for violating Rule

341(h)(6) falls within our discretion. See Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012

IL App (1st) 101558, ¶ 21. To the extent Wilson’s statement of facts violates Rule 341(h)(6),

our review is not hindered, given UCMC’s additional statement of facts. Although we will not

strike Wilson’s statement of facts, we will disregard arguments and unsupported statements.

See McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461, ¶ 3. Further, we admonish

Wilson’s counsel to adhere to the requirements of the supreme court rules in future appeals.

¶ 18 Standard of Review

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¶ 19 We review a trial court’s grant of summary judgment de novo. Argonaut Midwest

Insurance Co. v. Morales, 2014 IL App (1st) 130745, ¶ 14. Summary judgment means no

genuine issues of material fact remain, and the moving party deserves judgment as a matter of

law. 735 ILCS 5/2-1005(c) (West 2022). In reviewing a grant of summary judgment, we

construe the pleadings, depositions, admissions, and affidavits strictly against the movant and

liberally for the nonmoving party. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008); 735

ILCS 5/2-1005(c) (West 2022). Regardless of the trial court’s reasoning, we may affirm on

any basis in the record. Harlin v. Sears Roebuck & Co., 369 Ill. App. 3d 27, 31-32 (2006).

¶ 20 Standard of Care

¶ 21 In a medical malpractice claim, a plaintiff must show (i) the applicable standard of care,

(ii) the physician deviated from that standard of care or was unskillful or negligent, (iii) injury

to the plaintiff, and (iv) the physician’s negligence or deviation from the standard of care

directly or proximately caused the injury. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112,

(2004). Generally, a plaintiff presents expert medical testimony establishing the standard of

care from which the defendant physician deviated. Johnson v. Armstrong, 2022 IL 127942,

¶ 52. An expert witness helps the finder of fact make sense of medical evidence and determine

the defendant physician’s negligence or lack of skill. See McWilliams v. Dettore, 387 Ill. App.

3d 833, 845 (2009); Walski v. Tiesenga, 72 Ill. 2d 249, 256 (1978).

¶ 22 On rare occasions, however, the defendant physician provides the expert testimony. See

Metz v. Fairbury Hospital, 118 Ill. App. 3d 1093, 1097 (1983). Expert witness testimony

becomes inessential when the physician’s conduct is so grossly negligent or commonplace that

a layperson can assess it. Id. at 1098. Examples of negligent acts within a juror’s common

knowledge include a sponge or scalpel left in a patient after surgery. Id.

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¶ 23 Wilson contends that the trial court erred because Dr. Blair and Dr. Shah established the

standard of care. Specifically, Wilson points to Dr. Shah’s deposition testimony, agreeing that

a physician must use reasonable care to avoid puncturing the wall of the left atrium and

acknowledging that should a physician not use reasonable care, “it’s possible they could

puncture the wall.” Dr. Shah added that a physician could puncture “the left atrium wall ***

even if he or she uses all the care that he or she tries to muster.” Further, Dr. Shah

acknowledged some mechanical force must be exerted against the needle to puncture the

septum and stated that exerting mechanical force “may” “raise[ ] the possibility of the

mechanical force being too much.” Dr. Blair similarly testified that “the appropriate amount

of force or pressure is needed to cross a structure,” and a reasonable physician can avoid

puncturing the outer wall of the heart by taking “reasonable steps.”

¶ 24 Wilson relies on Metz to support her contention that Dr. Blair and Dr. Shah established the

standard of care. That holding, however, leads to the opposite conclusion. In Metz, several days

after a hospital treated the patient for severe abdominal pain, the patient, in more significant

pain, sought treatment from a clinic where physicians determined he needed immediate

surgery. Id. at 1094, 1096. While operating, the clinic physicians discovered, contrary to their

diagnosis, that the catheter inserted at the hospital was in an improper position, causing the

pain. Id. at 1097. The clinic physicians testified in their depositions that they did not check the

patient’s hospital medical records and charts, which would have revealed the misplaced

catheter before the patient underwent surgery. Id. The patient sued the hospital and the

physicians, alleging negligence. Id. at 1094. The hospital filed a third-party complaint against

the clinic physicians, claiming they misdiagnosed the patient and performed unnecessary

procedures. Id. at 1094-95. The clinic physicians acknowledged the misdiagnosis but denied

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negligence. Id. at 1095. The hospital relied solely on the clinic physicians’ deposition

testimony to establish the standard of care, arguing a jury could determine the clinic physicians

were negligent in not diagnosing the misplaced catheter before operating. Id. at 1097. The trial

court concluded that the hospital had not furnished enough evidence to demonstrate a breach

of the standard of care. Id. at 1094.

¶ 25 The appellate court affirmed. The court noted that in some cases, an expert witness is

unnecessary to establish the standard, such as when “ ‘the physician’s conduct is so grossly

negligent or the treatment so common that a layman could readily appraise it.’ ” Id. at 1098

(quoting Walski, 72 Ill. 2d at 256). But, the court found that because nothing in the clinic

physicians’ testimony touched on the standard for requesting transferred patient records or

charts, their testimony could not determine a breach of the standard of care. Id. Even though

Metz’s health problem turned out to be uncomplicated, the issue of whether the clinic

physicians were negligent is not within a layman’s common knowledge and requires expert

testimony regarding the general standards for acquiring transferred patients’ medical records

and charts. Id. Absent this evidence, the trial court did not err in directing a verdict for the

defendant hospital. Id.

¶ 26 Like the testimony of the clinic physicians in Metz, Dr. Blair’s and Dr. Shah’s testimony

fails to establish the standard of care. Indeed, neither Dr. Blair nor Dr. Shah made statements

on the standard of care. While Dr. Blair and Dr. Shah acknowledged a physician should use an

“appropriate” amount of force and some amount of force could be “too much,” notably absent

is testimony or evidence establishing what the “appropriate” amount of force is for this

procedure or this patient, how much force is “too much,” and the risks of puncturing the left

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atrial wall even if, as Dr. Shah testified, “a physician uses all the care that he or she tries to

muster.”

¶ 27 Moreover, Dr. Blair’s postoperative statements to Sobel and Wilson purportedly taking

responsibility and admitting fault do not identify, let alone establish, the standard of care.

Neither party cites, nor did our research uncover, Illinois cases addressing the issue. But courts

in other jurisdictions have held that a physician’s admission of fault does not establish the

standard of care or its breach. See, e.g., Locke v. Pachtman, 521 N.W.2d 786, 789 (Mich. 1994)

(surgeon’s alleged statements, “ ‘ “I knew the needle was too small when I used it” ’ ” and

patient’s injuries were her fault were insufficient to establish standard of care and breach of

that standard in medical malpractice case for injuries sustained when needle broke during

surgery and became lodged in patient’s muscle); Phinney v. Vinson, 605 A.2d 849 (Vt. 1992)

(affirming, doctor’s alleged admission that he performed “ ‘inadequate’ ” transurethral

resection of patient’s prostate and his apology to patient “ ‘for his failure to do so’ ” were

insufficient to raise jury question on standard of care, breach of that standard, or causation as

elements of medical malpractice claim).

¶ 28 Further, the testimony provides conflicting assessments of whether the sheath carrying the

transeptal needle or the sheath carrying the MitraClip caused the perforation. When asked

about the two TEE echo machines, neither Dr. Blair nor Dr. Shah testified that switching the

machines violated the standard of care. The most unambiguous statement on visualizing the

procedure came from Dr. Shah, who said physicians sometimes, under the best circumstances,

obtain limited visuals of the heart during these procedures. None of the testimony satisfies

Wilson’s burden to establish the standard of care under the Illinois Supreme Court’s narrow

reading of Metz. See Studt v. Sherman Health Systems, 2011 IL 108182 ¶ 26 (holding that

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Metz “provides, at most, only limited support for the use of evidence other than expert

testimony in a professional negligence case”).

¶ 29 Wilson claims switching between TEE echo machines caused a visualization problem,

although nothing in the record indicates this. Again, only Dr. Shah testified that physicians

may not fully visualize the patient’s heart using the proper equipment. Dr. Lang testified that

the decision to switch complied with the standard of care. And Dr. Blair and Dr. Shah testified

that the perforation was a known complication of the procedure.

¶ 30 The depositions leave unanswered what went wrong during the procedure. Without an

expert witness, a layperson would have no clue about the appropriate force in a closed-heart

procedure or the proper use of a TEE echo machine. Neither explanation compares to the

classic example of leaving something inside a patient during surgery.

¶ 31 In light of the general nature of Dr. Blair’s and Dr. Shah’s testimony and the complicated

logistics of the MitraClip procedure, expert witness testimony was necessary to establish the

standard of care.

¶ 32 Deviation From Standard of Care

¶ 33 Wilson contends the evidence shows that Dr. Blair and Dr. Shah deviated from the standard

of care, pointing to two separate acts as potentially negligent: (i) Dr. Blair pushing too hard

when placing the transseptal needle, and (ii) the switch between the TEE echo machines

interfering with Dr. Shah’s ability to visualize the procedure.

¶ 34 We first address the testimony regarding the force used in placing the transeptal needle.

Wilson cites Sobel’s testimony as evidence that Dr. Blair used too much force during the

procedure. Sobel testified that Dr. Blair acknowledged he pushed “too hard” during the

procedure. Wilson argues this amounts to an admission Dr. Blair breached the standard of care

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under Illinois Rules of Evidence 801(d)(2(D) (eff. Oct. 15, 2015) (statement not hearsay if

“[t]he statement is offered against a party and is *** a statement by the party’s agent or servant

concerning a matter within the scope of the agency or employment, made during the existence

of the relationship”). Admissibility depends on whether (i) Dr. Blair made the statement as a

UCMC employee during his employment and (ii) it is offered against UCMC. See Jefferson v.

Mercy Hospital & Medical Center, 2018 IL App (1st) 162219; Calloway v. Bovis Lend Lease,

Inc., 2013 IL App (1st) 112746. UCMC does not dispute the admissibility of Sobel’s

testimony.

¶ 35 Instead, UCMC argues for ignoring the testimony as self-serving and unreliable. See

Reuben H. Donnelley Corp. v. Krasny Supply Co., 227 Ill. App. 3d 414, 421 (1991) (“[i]n

determining whether factual issues exist for purposes of a summary judgment motion, the court

must ignore personal conclusions, opinions and self-serving statements and consider only facts

admissible in evidence”). UCMC claims (i) Sobel’s testimony was incomplete because he

could not remember whether Dr. Blair gave specifics on what caused the complication; (ii) the

testimony was unsupported by other evidence in the record and Dr. Blair could not remember

the specifics of this conversation; and (iii) even if Dr. Blair admitted to a mistake, this does not

prove the element of proximate cause because proof of mistake or harm is not evidence of lack

of skill or negligence. Kemnitz v. Semrad, 206 Ill. App. 3d 668, 675 (1990) (citing Scardina v.

Colletti, 63 Ill. App. 2d 481, 488 (1965) (holding existence of injury alone was not enough to

prove negligence)).

¶ 36 Because this is an appeal on a motion for summary judgment, we view the testimony in

Wilson’s favor and assume the credibility of Sobel’s testimony regarding Dr. Blair’s apology.

We agree that Dr. Blair’s admission that he “push[ed] too hard” might support Wilson’s

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contention that he deviated from the standard of care. See Wickoff v. James, 324 P.2d 661, 663-

64 (Cal. Dist. Ct. App. 1958) (evidence that physician came out of operating room and said

“Boy, I sure made a mess of things” and that by inserting sigmoidoscope in patient’s rectum

he “busted” the intestine, raised question for jury as to whether physician deviated from the

standard of care). But without expert witness testimony on the specific professional standard,

nothing conveys the interplay between too much force and a negligent amount of force. What

is the appropriate amount of force for this procedure? The record suggests some patients have

a hole in their septum. Is the standard of care different for those patients? What other factors

does a physician consider when deciding how much force to use? Even if we give weight to

Sobel’s testimony, what remains are critical unanswered questions on the standard of care,

Wilson has not met her burden.

¶ 37 Next, we turn to the testimony regarding the switch between the TEE echo machines.

Wilson argues the switch alone breaches the standard of care. The testimony does not support

her argument. Dr. Lang and Dr. Shah testified that the switch complied with the standard of

care, and neither physician indicated that the switch impaired the ability to visualize the

procedure.

¶ 38 Proximate Cause

¶ 39 Wilson’s opening brief makes no mention of proximate cause, forfeiting the issue. Ill. S.

Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued [in appellant’s brief] are forfeited and

shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”).

Nonetheless, contrary to Wilson’s assertion in her reply brief, she failed to establish proximate

cause.

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¶ 40 A plaintiff typically must establish proximate cause to a reasonable degree of medical

certainty by presenting expert witness testimony. Vanderhoof v. Berk, 2015 IL App (1st)

132927 ¶ 60 (citing Johnson v. Ingalls Memorial Hospital, 402 Ill. App. 3d 830, 843 (2010)).

“The causal connection must not be contingent, speculative, or merely possible.” Townsend v.

University of Chicago Hospitals, 318 Ill. App. 3d 406, 413 (2000). “If the plaintiff fails to

create a proximate cause fact issue for the jury to consider, no prima facie case is made ***.”

Id.

¶ 41 Wilson presented no expert testimony on proximate cause. Instead, she again relies on Dr.

Blair’s deposition testimony that if a physician does not use reasonable care, it is “possible”

they could puncture the wall of the left atrium, as well as the operative report stating the

“transeptal [needle] inadvertently punctured the left atrial free wall.” Dr. Blair’s testimony fails

to show to a reasonable degree of medical certainty that, as Wilson contends, pushing “too

hard” proximately caused her injury. Dr. Blair simply acknowledged that failing to use

“reasonable care,” which, as noted, Wilson did not establish, makes a puncture “possible.” The

operative report details the nature of the injury—a transeptal needle puncture of the left atrial

wall—but does not explain what caused it.

¶ 42 Without expert testimony regarding the standard of care, deviation from the standard of

care, or proximate cause, the trial court properly granted summary judgment for UCMC.

¶ 43 Affirmed.

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Wilson v. University of Chicago Medical Center, 2023 IL App (1st) 230078

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-L-7017; the Hon. Preston Jones Jr., Judge, presiding.

Attorneys Michael S. Baird, of Stotis & Baird Chtrd., of Chicago, for for appellant. Appellant:

Attorneys Daniel B. Mills, Robert E. Sidkey, and Robert L. Larsen, of for Cunningham, Meyer & Vedrine, P.C., of Chicago, for appellees. Appellee:

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