Ayala v. Murad

SECOND DIVISION

September 12, 2006

No. 1-05-0511

JOYCE AYALA, Individually and as Special ) Appeal from the

Administrator of the Estate of Michelle Ayala, ) Circuit Court

) of Cook County.

Plaintiff-Appellant, )

)

v. )

)

TARIQ MURAD; TARIQ MURAD, LTD.; and ) Honorable

BARRINGTON PATHOLOGY, LTD., ) Mary A. Mulhern,

) Judge Presiding.

Defendants-Appellees. )

JUSTICE SOUTH delivered the opinion of the court:

Plaintiff, Joyce Ayala, individually, and as special administrator of the estate of her

daughter, Michelle Ayala, brought this medical malpractice action seeking damages for the alleged

injury and wrongful death of Michelle. Following the presentation of plaintiff's case-in-chief, the

trial court granted the motions of defendants Tariq Murad, M.D., Tariq Murad, Ltd., and

Barrington Pathology, Ltd., for a directed verdict on the grounds that plaintiff had failed to prove

the proximate cause element of her claim.

On April 8, 1998, Michelle Ayala, who was 18 years old at the time, had a large tumor

surgically removed from her abdomen by Dr. Regis Weiss at Good Shepherd Hospital in

Barrington, Illinois. Tests performed at the time by Dr. Murad, a pathologist, indicated it was a

noninvasive borderline ovarian tumor. Approximately 18 months later, Michelle was diagnosed as

having a stage IV ovarian tumor with the cancer having spread or metastasized to her lungs and

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the bone of her spine. On September 9, 2000, Michelle died of low blood pressure and other

complications of metastatic ovarian cancer. Plaintiff ultimately filed a medical malpractice

complaint against Dr. Murad, individually, and as an agent for Tariq Murad, Ltd., and Barrington

Pathology, Ltd., under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)) and the

Survival Act (755 ILCS 5/27-6 (West 1998)).1 Plaintiff alleged, inter alia, that Dr. Murad had

failed to provide a proper pathological diagnosis of Michelle’s tumor which led to the

complications resulting in her death.

During the jury trial, Dr. Regis Weiss, a gynecologic oncologist, testified that he first

examined Michelle in the spring of 1998. She had recently lost a considerable amount of weight

by choice but did not lose abdominal girth. Michelle’s family physician, Dr. Ferolo, referred her

to Dr. Weiss after discovering a very large mass filling her abdomen, which was confirmed by a

CT scan. Michelle had a very distended abdomen and, as best as Dr. Weiss could tell, it extended

from her rib cage, down to her pubic bone, and out into the flanks, which constitute the sides of

the abdominal wall, and filled all the available space. He thought it was probably a benign

mucinous tumor due to its size and Michelle’s age. Dr. Weiss testified that the larger the tumor,

the less likely it is to be malignant, and that malignancies are usually more symptomatic before

reaching such a large size. Dr. Weiss scheduled surgery to remove the mass and informed

Michelle that he would possibly need to do a second operation if something malignant were

found.

1

On September 11, 2003, plaintiff voluntarily dismissed her complaint against Dr. Regis

Weiss and Chicago Gynecological Oncology, S.C. On January 13, 2005, plaintiff’s complaint

against Advocate Heath and Hospitals Corp. was dismissed following settlement with plaintiff.

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During Michelle’s surgery on April 8, 1998, Dr. Weiss felt the surface of her tumor, which

did not appear to be attached to the abdominal wall, intestine, or anything behind it, which meant

it was more likely benign. Due to the size of the growth, which was over 60 pounds, Dr. Weiss

chose to decompress it by suctioning out approximately six gallons of liquid. The remaining

mass, which weighed about nine pounds, was also removed and sent along with two fluid samples

to the pathologist. While awaiting the results, Dr. Weiss observed various organs and portions of

the abdomen and did not feel or see any abnormalities.

The pathologist, Dr. Murad, telephoned during the surgery and said it was a mucous-type

tumor, and while he saw some borderline changes in focal areas, it did not appear to have any

invasion. Dr. Weiss then closed the patient and did not take any further action. If Michelle’s

tumor had been diagnosed as malignant, Dr. Weiss would have done washings from various areas

of the abdomen, taken additional samples, removed the omentum, and done a lymph node

dissection. Within several days of the surgery, Dr. Weiss received a final written report from Dr.

Murad which was a product of a complete sampling of the tissue and fluid provided. Dr. Murad

concluded that Michelle’s growth was a mucinous ovarian tumor of low malignant potential or a

borderline tumor. Dr. Weiss shared the results of the pathology report with Michelle and her

mother in April 1998 and told them “that while it was not a benign tumor, a borderline tumor was

not as worrisome as cancer.” During the 14 months following the surgery, Dr. Weiss did four

follow-up examinations and did not discover any abnormalities. In September 1999, he was told

by Dr. Ferolo that Michelle was found to have a femoral or bony tumor, and when they

investigated, she also had tumors in her lungs.

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Dr. Murad testified he is a board-certified pathologist and he, and his partner, Dr. Raja

Bahu, perform pathology services at Good Shepherd Hospital. On April 8, 1998, he inspected

Michelle’s tumor after it was sent to the pathology lab from the operating room. Dr. Murad

found no obvious macroscopic or visual invasion. He also made four frozen section slides from

the nine-pound tumor. When Dr. Murad looked at the frozen sections under a microscope, he

saw only a borderline tumor. A borderline tumor of the ovary is the same as a tumor of low

malignant potential. Dr. Murad contacted Dr. Weiss during the surgery and informed him that the

tumor was borderline. He subsequently took several slices throughout the nine-pound tissue

sample which resulted in 21 permanent section slides. On April 9, 1998, he examined each of the

slides under a microscope and provided a two-page pathology report which contained the

following diagnosis: “right tube and ovary, mucinous ovarian tumor of low malignant potential

(borderline tumor), see microscopic description.” In the microscopic description, he wrote, “no

invasion is identified in any of the sections examined, and there are areas in which the lining is that

of a single layer of mucinous secreting columnar type cells with basal nuclei.” He wrote “absent”

in the column pertaining to vascular invasion. Dr. Bahu also looked at Michelle’s slides and

agreed that it was a borderline tumor.

Dr. Robert Mandal testified he was Michelle’s primary medical oncologist from September

1999 until her death. When Michelle became his patient, she had stage IV ovarian cancer which

had already spread to the lungs and the bone of the spine. As a medical oncologist, Dr. Mandal

treats cancer patients with chemotherapy and other injectable or orally administered modalities.

He opined that Michelle’s tumor most likely spread through the blood from her ovary. Five

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different chemotherapy regimens were tried on Michelle, but none worked. Dr. Mandal testified

that stage IV ovarian cancer which has metastasized to the lung and bone, according to the

Federation of International Obstetricians and Gynecologists (FIGO) standards, is incurable,

regardless of the chemotherapy used.

Plaintiff presented the testimony of two retained medical witnesses, Dr. William Welch and

Dr. Donald Goldstein. Dr. Welch, a gynecologic pathologist at Brigham and Women’s Hospital in

Boston, Massachusetts, testified that he reviewed the complete set of slides prepared by Dr.

Murad, including the frozen section slides. Dr. Welch testified that surgeons rely heavily on what

the pathologist reports, especially as to whether the pathologist refers to something as benign or

malignant. The features that are found in a tumor are also extremely important for the oncologist

when making decisions as to what the next stage will be for the patient’s care. He testified that a

borderline mucinous tumor of the ovary generally “implies that the epithelial lining of the cysts of

one of these multicystic tumors has proliferated to a degree that some of the cells are piling up on

top of each other. And there may be some degree of atypicality in those cells. They don’t look

nice and orderly and well behaved like a benign tumor would.”

Dr. Welch further testified that Michelle's tumor was “predominantly borderline,” but

within this borderline tumor, there was “the development of more ominous findings.” The

lymphovascular invasion placed portions of the tumor into a different category than borderline.

Dr. Welch testified “it is not at all uncommon to have a tumor in which in one aspect you have a

very benign epithelium and then you have a borderline proliferative atypical epithelium and then in

another area a focus of invasion or many foci of invasion.” Michelle’s tumor was not just a

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borderline tumor because once there was an invasion, the tumor cells were expressing an ability to

invade, and that was a very important biological parameter. “If there is a malignant tumor with a

lot of invasion and some other worrisome features, the patient clearly goes to chemotherapy or

*** some other form of therapy to try to stop this tumor from growing and metastasizing.” Dr.

Welch believed Michelle’s tumor had “gotten into lymphatics and *** into the blood vessel,

although not everyone would agree with the interpretation that what [he] consider[ed] blood vessel

invasion is truly blood vessel invasion.” When a tumor is predominantly borderline, but also

includes malignant features, the latter controls the treatment and final outcome. The standard of

care in this case required the pathologist to make the correct diagnosis, which included mentioning

the fact that there was invasion into the stroma of the tumor. Dr. Welch believed Dr. Murad

deviated from the standard of care by not seeing the areas of most concern and not reporting them.

Dr. Welch provided extensive testimony as to what he observed on the various slides

created by Dr. Murad and noted, in particular, that one nodule on a slide represented a major

invasive component of the tumor, which went beyond what anyone might call a microinvasion. Dr.

Welch reviewed Dr. Murad’s final pathology report dated April 9, 1998, and concluded it deviated

from the standard of care because it did not include any mention of stroma, lymphatics, or vascular

invasion. Dr. Welch also believed the report deviated from the standard of care because it

indicated there was no invasion found in any of the sections examined. Finally, he testified the

standard of care required carcinoma, or adenocarcinoma, to appear in the final pathological

diagnosis because there was clear-cut evidence of invasion. Dr. Welch would have assumed the

tumor would ultimately behave as a carcinoma and not as a borderline tumor.

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Prior to the testimony of Dr. Goldstein, defendants filed a motion in limine seeking to bar

him from testifying as to the management, treatment and/or effectiveness of chemotherapy if it had

been administered to Michelle after her surgery in April 1998. Defendants argued that Dr.

Goldstein did not have the requisite expertise and qualifications to offer such testimony. After

conducting a voir dire hearing, the trial court found Dr. Goldstein was not an expert in medical

oncology and would not be allowed to testify as to what the course of treatment would have been

for Michelle and how she might have done had she received treatment sooner.

Dr. Goldstein then testified that he is board certified in obstetrics and gynecology and

specializes in gynecologic oncology at Brigham and Woman’s Hospital, where he primarily does

surgery. He also works for the Dana-Farber Cancer Institute in Boston, where he does outpatient

care. A large part of his testimony was about the FIGO staging system for cancer patients. He

testified that all patients in a particular stage would be considered the same type, mostly for

academic purposes, so if they were treated they should have similar outcomes. Dr. Goldstein

described the following stages, in relevant part, as they relate to ovarian cancer patients: stage I

would be a tumor localized to the ovaries; stage IA would be localized to one ovary; stage IB

would involve both ovaries; stage IC would be one or both ovaries involved with some evidence of

tumor cells in the abdominal cavity; and stage IV would be if there was evidence of the disease

outside the abdominal cavity. When a pathologist concludes that a tumor is malignant, staging

should be done which, depending upon the circumstances, entails washings, removing any tumors

that appear on any structure, removing the omentum, taking scrapings, and sampling lymph nodes.

It is a judgment call on the surgeon's part whether to stage a borderline tumor of the ovaries and

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depends upon various factors. Most such borderline tumors, however, are staged.

Dr. Goldstein testified that Michelle had a stage IA or IC tumor, most likely a IA tumor, on

April 8, 1998. His opinion, which he held within a reasonable degree of medical certainty, was

based upon the following facts: Dr. Weiss explored the abdomen very thoroughly when he

removed the tumor and found no evidence of any disease; 18 months after the operation when

Michelle began to have symptoms of her recurrent tumor and a CT scan was done, no evidence of

any tumor in her abdomen was found; and fluid inside a mucinous tumor is very gelatinous, and if

the fluid gets into the abdominal cavity, it can cause a condition called "pseudomyxoma peritonei,"

where you have a gelatin-like development in the abdominal cavity, and there was no evidence of

such a condition in Michelle’s case. Based upon the FIGO statistics for ovarian cancer, a patient

diagnosed with a stage IA tumor has about an 80% chance of survival, while a stage IC patient has

a 70% to 75% survival rate, and a stage IV patient has less than a 10% survival rate. When

Michelle was diagnosed with ovarian cancer in September 1999, it was behaving like a stage IV

tumor because it was outside of the abdominal cavity in the lungs and the bone.

At the completion of plaintiff’s case-in-chief, defendants moved for a directed verdict

because plaintiff had failed to meet her burden on the issue of proximate cause. The trial court

took the issue under advisement and instructed defendants to begin their case-in-chief. After

defendants presented the testimony of three pathologists, including Dr. Robert Young, the trial

court granted defendants’ motion for a directed verdict. In doing so, the trial court concluded

there was no opinion to a reasonable degree of medical certainty that the effectiveness of the

treatment Michelle might have received after April 1998, was lessened. The trial court further

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concluded there was no evidence that Michelle's stage IA cancer, if left untreated, would have

progressed to a stage IV cancer within a certain amount of time. Finally, the trial court concluded

there was no evidence which indicated what treatment Michelle would have been given which

would have prevented her stage IA cancer from later progressing to Stage IV cancer, which was

the cause of her death in September 2000.

Plaintiff raises the following three issues for our consideration: (1) whether the trial court

abused its discretion by barring Dr. Goldstein’s trial testimony concerning the potential efficacy of

certain courses of cancer treatment if started earlier in this case; (2) whether the trial court erred by

granting defendants’ motion for a directed verdict; and (3) whether the trial court abused its

discretion by prohibiting plaintiff from cross-examining defendants' pathology expert, Dr. Robert

Young, about information he may have included in a pathology report if he had been Michelle’s

pathologist.

We first consider plaintiff’s claim that the trial court abused its discretion by barring

plaintiff's medical expert, Dr. Goldstein, from testifying as to the management, treatment, and/or

effectiveness of any chemotherapy that may have been part of Michelle’s treatment following her

surgery in April 1998. Defendants assert that the trial court properly barred the testimony because

Dr. Goldstein was not a medical oncologist and did not have the requisite experience with cancer

treatment to support his opinions.

An expert witness is a person who, because of education, training, or experience,

possesses specialized knowledge beyond the ordinary understanding of the jury. Hubbard v.

Sherman Hospital, 292 Ill. App. 3d 148, 153 (1997). In medical malpractice cases, “[i]t must be

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established that the expert is a licensed member of the school of medicine about which he

proposes to express an opinion [citation] and the expert witness must show that he is familiar with

the methods, procedures, and treatments ordinarily observed by other physicians, in either the

defendant physician’s community or a similar community.” Purtill v. Hess, 111 Ill. 2d 229, 243

(1986); see also Gill v. Foster, 157 Ill. 2d 304, 316 (1993). Whether the plaintiff’s medical

“expert is qualified to testify is not dependent on whether he is a member of the same speciality or

subspeciality as the defendant, but, rather, whether the allegations of negligence concern matters

within his knowledge and observation.” Jones v. O’Young, 154 Ill. 2d 39, 43 (1992). The trial

court has the discretion to determine whether a person is qualified to testify as a medical expert

and its determination will not be disturbed absent an abuse of discretion. Gill, 157 Ill. 2d at 317.

In Gill, the trial court barred the plaintiff’s expert, Dr. McAfee, a board-certified general

surgeon, from testifying that the defendant, a radiologist, had deviated from the standard of care in

reading various films that were taken during the plaintiff’s hospitalization. Gill,157 Ill. 2d at 315.

Dr. McAfee testified that during the course of his career as a surgeon, he had training and

experience in interpreting X-rays and had instructed medical students on the subject of radiology as

it relates to surgery. Gill, 157 Ill. 2d at 315-16. He had also examined tens of thousands of X-rays

and was familiar with the standard of care of a reasonably well-qualified radiologist. Gill, 157 Ill.

2d at 315-16. While affirming the underlying decision, the supreme court found the trial court

abused its discretion by limiting Dr. McAfee's testimony. Gill, 157 Ill. 2d at 318. The plaintiff's

witness, as a licensed doctor, could testify as an expert in the area of radiology, and to the standard

of care of radiologists, even though he was not a practicing radiologist and lacked board

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certification. Gill, 157 Ill. 2d at 317. His lack of board certification, and his occasional reliance

upon radiologists’ interpretations of X-rays in complicated cases, went to the weight of his

opinion, and not to its admissibility. Gill, 157 Ill. 2d at 317.

Similarly, in Silverstein v. Brander, 317 Ill. App. 3d 1000 (2000), the trial court found the

plaintiff’s medical expert, Dr. Singer, an internist, unqualified to testify that the defendant

physiatrist had violated the standard of care with regard to the management of the plaintiff during

his rehabilitation from a hip replacement. Silverstein, 317 Ill. App. 3d at 1003-04. We reversed

the trial court on the basis that Dr. Singer had worked on the medical management of more than

100 of his patients while they underwent physical rehabilitation following hip replacement surgery.

Silverstein, 317 Ill. App. 3d at 1007. We directed the trial court to allow Dr. Singer to testify on

remand as to the standards governing the medical management of postoperative patients because

he demonstrated adequate expertise. Silverstein, 317 Ill. App. 3d at 1008.

In Hubbard v. Sherman Hospital, 292 Ill. App. 3d 148 (1997), relied upon by defendants,

the trial court barred the plaintiff's proposed medical expert, Dr. Malachinski, who was not a

surgeon, from rendering any opinions regarding allegations that the defendant doctor delayed the

plaintiff's appendectomy procedure and diagnostic tests, or about the defendant's actual surgical

performance. Hubbard, 292 Ill. App. 3d at 152-53. Dr. Malachinski had dealt with appendicitis

patients as an attending physician, but not as a surgeon, and had only completed a one-month

rotation as an intern in general surgery and had occasionally assisted in surgeries. Hubbard, 292

Ill. App. 3d at 153. We found the trial court did not abuse its discretion in limiting Dr.

Malachinski's testimony on the basis that he was not qualified to render expert opinion concerning

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the surgeon’s performance or any possible delay in scheduling testing or the surgical procedure.

Hubbard, 292 Ill. App. 3d at 154-55.

In Northern Trust Co. v. Upjohn Co., 213 Ill. App. 3d 390 (1991), also relied upon by

defendants, the plaintiff was treated with an intrauterine injection of an abortion-inducing drug.

Northern Trust, 213 Ill. App. 3d at 395. Thereafter, the plaintiff's blood pressure rose

dramatically, she suffered nausea, and experienced an irregular pulse. Northern Trust, 213 Ill.

App. 3d at 395. The defendant obstetrician instructed a nurse to continue monitoring the patient

closely and left the room. Northern Trust, 213 Ill. App. 3d at 395. A short time later, the plaintiff

suffered a cardiac arrest and sustained a brain injury. Northern Trust, 213 Ill. App. 3d at 396. The

plaintiff tendered a specialist in emergency medicine, Dr. Matthews, as an expert witness in her suit

against the obstetrician, the hospital, and the drug manufacturer. Northern Trust, 213 Ill. App. 3d

at 406. Dr. Matthews was not an obstetrician or gynecologist, had never performed an abortion,

and had never used the drug at issue or observed the reactions of a patient receiving the abortion-

inducing drug. Northern Trust, 213 Ill. App. 3d at 406-07. We concluded that Dr. Matthews was

not competent to testify as to the standard of care to be applied to the defendant obstetrician

because his lack of actual experience made him unqualified to know what was the customary

practice for someone in the defendant's position. Northern Trust, 213 Ill. App. 3d at 407.

Consequently, we found the plaintiff had failed to present sufficient expert testimony to establish

the standard of care and the breach of that standard, and reversed the judgment against the

defendant obstetrician. Northern Trust, 213 Ill. App. 3d at 407.

Turning to the case at hand, the record establishes that the following relevant evidence was

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presented during the voir dire hearing: Dr. Goldstein has been board certified in obstetrics and

gynecology since 1967. He works as part of a group of six gynecologic oncologists at Brigham

and Women's Hospital and the Dana-Farber Cancer Institute in Boston. Dr. Goldstein also works

with three medical oncologists with whom he collaborates during a weekly conference to discuss

various issues surrounding a patient's status and cancer therapy. While he refers patients to a

medical oncologist for purposes of managing the chemotherapy and making the decision as to

whether to give chemotherapy, including any experimental drugs, he also monitors the patient's

response to the therapy. Dr. Goldstein testified that carboplaitin and Taxol have been the standard

first-treatment drugs for ovarian cancer for about 10 years. He further testified that he would

question a medical oncologist if any alternative course was suggested for one of his patients, and

the medical oncologist would have to explain why a different agent was necessary. Dr. Goldstein

testified that an alternative chemotherapy is only used about 5% of the time, such as when a patient

has an unusually adverse reaction to the standard drugs, and the medical oncologist would propose

the alternative course. However, in those cases where the standard drugs do not work or

subsequent chemotherapies are used, Dr. Goldstein testified he is involved in the decision-making

process as to what should be done. While he would not make the ultimate decision, he testified it

would be a "joint decision" whether to use something experimental or a second line of therapy.

Following the voir dire hearing, the trial court limited Dr. Goldstein's testimony on the

basis that he was not qualified to give an opinion on what the course of treatment would have been

for Michelle if her cancer had been staged in April 1998, or what the benefits and disadvantages to

a course of therapy might have been. The trial court concluded that Dr. Goldstein was not

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sufficiently familiar with the decision-making process, and the methods medical oncologists use to

select the course of therapy to administer, to allow his testimony. The trial court noted that there

are cases when the standard therapy is not administered, and that there would be no way of

knowing whether this was one of those cases, and defendants would lack the opportunity to cross-

examine the doctor who determines the modality.

Like in Gill and Silverstein, we find the trial court abused its discretion by limiting Dr.

Goldstein's testimony. As a licensed doctor with extensive experience in the management and

treatment of cancer patients, Dr. Goldstein was qualified to testify as an expert concerning the

potential course and efficacy of treatment if Michelle's cancer had been diagnosed sooner. Dr.

Goldstein testified that he collaborates on a weekly basis with the hospital's medical oncologists; is

familiar with the standard course of treatment for ovarian cancer patients; monitors the reaction of

his patients to cancer therapies; questions a medical oncologist if an unusual course of therapy is

suggested for one of his patients; and would be a joint decision maker in deciding whether

something experimental, or a second line of therapy, should be administered to a cancer patient.

Unlike the medical witnesses in Hubbard and Northern Trust, Dr. Goldstein demonstrated

extensive experience in the management and treatment of cancer patients in order to allow him to

testify about Michelle’s potential treatment. Dr. Goldstein's lack of board certification in medical

oncology and his reliance upon medical oncologists in determining a patient's ultimate treatment

went to the weight of his opinion, not to its admissibility. See Gill, 157 Ill. 2d at 317.

Based upon our determination that the trial court abused its discretion by limiting Dr.

Goldstein's testimony, we must determine whether the error constitutes grounds for a new trial.

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Errors in the exclusion of evidence may warrant a new trial where the errors are serious and

prejudicial. Israel v. National Canada Corp., 276 Ill. App. 3d 454, 463 (1995). The party seeking

reversal has the burden of establishing prejudice. Israel, 276 Ill. App. 3d at 463.

"To succeed on a claim of medical malpractice, a plaintiff must demonstrate: (1) the

standard of care applicable to the defendant’s actions; (2) the defendant’s deviation from the

appropriate standard of care; and (3) the deviation from the standard of care proximately caused

the plaintiff’s injuries." McDaniel v. Ong, 311 Ill. App. 3d 203, 208 (1999). Proximate cause in a

medical malpractice case must be established by expert testimony to a reasonable degree of

medical certainty, and the causal connection must not be contingent, speculative, or merely

possible. Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406, 413 (2000).

We agree with the trial court that the evidence presented by plaintiff to the jury was

insufficient, as a matter of law, to show that Dr. Murad's alleged deviation from the standard of

care resulted in a decreased chance of survival due to a delay in starting Michelle's treatment.

Pedrick v. Peoria & E.R.R. Co., 37 Ill. 2d 494, 510 (1967) (a directed verdict is appropriate only

where all of the evidence, when viewed in the aspect most favorable to the opponent, so

overwhelmingly favors the movant that no contrary verdict based upon the evidence could ever

stand).

The record establishes, however, that Dr. Goldstein provided the following opinion

contained in plaintiff's Supreme Court Rule 213 (Official Reports Advance Sheet No. 8 ( 2002), R.

213, eff. July 1, 2002) discovery disclosures:

"In summary, it is my opinion to a reasonable degree of

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medical certainty that Dr. Murad's failure to diagnose and report

invasive mucinous cancer and lympho-vascular invasion in

April,1998, resulted in an 18+ month delay in providing

chemotherapy and other diagnostic and potentially therapeutic

treatment, substantially reduced Ms. Ayala's chance of surviving her

cancer, reduced her life expectancy, lessened the effectiveness of

treatment once it was finally initiated, and resulted in substantial

medical expenses, and pain and suffering in the year prior to

decedent's death."

This opinion was consistent with Dr. Goldstein's subsequent voir dire testimony elicited

during the hearing on defendants’ motion in limine. At the hearing, Dr. Goldstein testified that the

standard primary treatment for ovarian cancer for approximately the last ten years was carboplatin

and Taxol; the normal cycles for the administration of carboplatin and Taxol would initially be six

treatments at three week intervals; such treatment constituted the standard of care for gynecologic

and medical oncologists who administer chemotherapy for ovarian cancer; and that Michelle’s

cancer should have been diagnosed and she should have received such treatments of carboplatin

and Taxol. Dr. Goldstein later testified at trial that he believed, within a reasonable degree of

medical certainty, that Michelle most likely had a stage IA tumor in April 1998, which had a FIGO

survival rate of 80%, and that by September 1999, her cancer had reached stage IV, which had a

FIGO survival rate of less than 10%. Dr. Goldstein, however, could only testify in general terms

about the FIGO staging system as he was not allowed, based upon the trial court's ruling on

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defendants' motion in limine, to testify as to what the course of treatment for Michelle would have

been, and how she might have done had she received treatment sooner, and to connect the FIGO

statistics to Michelle's case. For the foregoing reasons, we find plaintiff has met her burden that

the trial court's error in limiting Dr. Goldstein's testimony was prejudicial to her cause in that it

precluded her from showing that Dr. Murad's alleged deviation from the standard of care

proximately caused her injuries. Accordingly, we remand for a new trial.

Finally, we turn to plaintiff’s claim that the trial court abused its discretion by limiting her

cross-examination of defense witness Dr. Robert Young, who testified after the trial court took

defendants’ motion for a directed verdict under advisement. We will consider plaintiff's claim for

purposes of the admissibility of the challenged testimony on remand.

The record establishes that when the trial court ruled on various objections made to the

evidence deposition of defendant's pathology expert, Dr.Young, it struck the following testimony

provided during plaintiff's cross-examination of the witness:

"Q. You would have mentioned the cancer and stroma

invasion written in the report to Michelle Ayala's gynecological

oncologist, wouldn't you?

A. Yes."

The trial court struck this testimony because it related to the personal practices of Dr. Young and

did not concern a deviation from the applicable standard of care.

The admission of evidence falls within the discretion of the trial court and will not be

reversed on review absent an abuse of discretion. Brax v. Kennedy, 363 Ill. App. 3d 343, 355

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(2005). We explained in Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 730 (1994):

"[O]ur supreme court [in Walski v. Tiesenga, 72 Ill. 2d 249

(1978),] established that evidence that another doctor would have

acted differently was not sufficient to show that the defendant

doctor breached the standard of care. An expert's statements that

he would have acted differently are not even relevant 'because

differences in opinion are consistent with the conformity to the

applicable standard.' " Glassman, 259 Ill. App. 3d at 752, quoting

Mazzone v. Holmes, 197 Ill. App. 3d 886, 898 (1990).

As in Glassman and Mazzone, Dr. Young's testimony here did not concern the applicable

standard of care, but constituted evidence of what he would have done as Michelle's pathologist.

While we recognize the Fourth District Appellate Court disagreed with Mazzone in Gallina v.

Watson, 354 Ill. App. 3d 515, 520 (2004), we see no reason to reconsider the holdings of the

First District Appellate Court on this issue, and find the trial court did not abuse its discretion by

limiting plaintiff's cross-examination of Dr. Young.

Accordingly, the judgment of the circuit court of Cook County is reversed and remanded

with direction for a new trial consistent with this opinion.

Reversed and remanded with directions.

HALL, J., concurs.

WOLFSON, P.J., specially concurs.

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PRESIDING JUSTICE WOLFSON, specially concurring:

I agree the trial court committed reversible error when it

limited Dr. Goldstein's testimony, and I agree a new trial is

warranted, but I do not agree with the majority's position on Dr.

Young's stricken testimony concerning whether he would have

mentioned cancer and stroma invasion to Michelle Ayala's

gynecological oncologist.

It is true that an expert cannot be asked about his own

conduct in order to establish a defendant doctor's deviation from

or adherence to the standard of care. See Glassman v. St. Joseph

Hospital, 259 Ill. App. 3d 730 (1994). But that was not the

point of the question asked of Dr. Young. Counsel was trying to

attack the persuasive value of Dr. Young's opinions. It was an

attack on his credibility. That is permissible. See Gallina v.

Watson, 354 Ill. App. 3d 515, 521 (2005). If opposing counsel

fears jury misuse of the testimony, a limiting instruction can be

used to confine the jury to a proper consideration of the

evidence.

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