Smith v. Marvin

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

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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

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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

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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.

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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

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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

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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

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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, ___

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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.

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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

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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.

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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

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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.

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