Gulino v. Zurawski

Illinois Official Reports

Appellate Court

Gulino v. Zurawski, 2015 IL App (1st) 131587

Appellate Court JOANNE GULINO, Individually and as Independent Administrator

Caption of the Estate of Matthew Gulino, Deceased, Plaintiff-Appellee, v.

MARIA ZURAWSKI, R.N., and ACUTE EXTRACORPOREAL

SERVICES, L.L.C., Defendants-Appellants.

District & No. First District, Third Division

Docket No. 1-13-1587

Filed October 21, 2015

Decision Under Appeal from the Circuit Court of Cook County, No. 10-L-14410; the

Review Hon. James P. Flannery, Judge, presiding.

Judgment Affirmed.

Counsel on Hinshaw & Culbertson, LLP, of Chicago (Stephen R. Swofford and

Appeal Nancy G. Lischer, of counsel), for appellants.

Pfaff, Gill & Ports, Ltd., of Chicago (Michael W. Rathsack, of

counsel), for appellee.

Panel JUSTICE PUCINSKI delivered the judgment of the court, with

opinion.

Presiding Justice Mason and Justice Fitzgerald Smith concurred in the

judgment and opinion.

OPINION

¶1 Plaintiff Joanne Gulino (Joanne or plaintiff), individually and as the independent

administrator of the estate of her husband Matthew Gulino (Matthew) filed a medical

malpractice action against defendants Maria Zurawski, R.N., and her employer, Acute

Extracorporeal Services, L.L.C. (AES), in which she alleged that Zurawski was negligent in

her treatment of Matthew and that her negligence proximately caused his death. The cause

proceeded to trial, where the jury ultimately returned with a verdict finding defendants guilty

of negligence and awarded plaintiff damages in the amount of $12,261,131. On appeal,

defendants challenge the verdict arguing: (1) the circuit court erred in denying their motion

for a judgment notwithstanding the verdict; (2) the verdict is against the manifest weight of

the evidence; and (3) the circuit court made several erroneous rulings concerning the

permissible scope of expert witness testimony. For the reasons set forth herein, we affirm the

judgment of the circuit court.

¶2 BACKGROUND

¶3 Overview of Thrombotic Thrombocytopenic Purpura

¶4 Matthew died on October 25, 2009, from complications of thrombotic thrombocytopenic

purpura (TTP), a rare blood disease. In a TTP patient, a protein in the patient’s plasma causes

the platelets in his body to clump together, which then clog his blood vessels. As a result, the

patient’s red blood cells, the cells responsible for carrying oxygen throughout the body,

cannot effectively pass through the blood vessels and his organs become damaged due to lack

of oxygen. TTP is universally fatal without prompt diagnosis and treatment. Patients with

TTP typically present with nonspecific symptoms such as fatigue, shortness of breath,

bruising, and possible neurological symptoms like confusion or headaches. Patients are

typically diagnosed following a series of blood tests including a complete blood count (CBC)

and blood smear. A CBC measures the number of red blood cells, white blood cells and

platelets in a person’s body and the results of a CBC performed on a TTP patient will reveal

a lower than normal level of platelets and red blood cells. A blood smear, in turn, will reveal

abnormally shaped red blood cells. Although TTP can result from an auto-immune disease,

in more than 50 percent of TTP patients, the cause of the disease is unknown. The only

effective treatment for TTP is plasmapheresis,1 a treatment that involves the use of a large

machine to remove the patient’s blood from his body in order to separate the plasma from the

rest of the blood. The patient’s blood is then combined with plasma from a donor and

ultimately reintroduced into the patient’s body. Each plasmapheresis treatment takes two to

three hours to complete and the treatments are done on a daily basis until the TTP patient

begins to improve. Absent plasmapheresis treatments, a TTP patient will die.

¶5 Events Preceding Matthew’s TTP Diagnosis and Death

¶6 At the start of 2009, Matthew was a healthy 49-year-old married father of three children.

He had his annual checkup in June 2009 with his primary care physician, Dr. Gregory

Rausch, and aside from having high cholesterol, Matthew was otherwise healthy. Beginning

1

Plasmapheresis is also sometimes referred to as plasma exchange therapy.

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around October 12, 2009, however, Matthew began experiencing various unusual symptoms

including nausea, fatigue, shortness of breath, chills and lightheadedness. When the

symptoms did not dissipate over the next few days, he sought treatment from his primary

care physician. On October 19, 2009, Dr. Rausch ordered an electrocardiogram (EKG) and a

stress test to determine whether Matthew had a potential cardiac issue. He also ordered a

partial blood test to check Matthew’s cholesterol level since it had been high during his

recent annual exam. Based on the results of his tests as well as a physical exam, Dr. Rausch

diagnosed Matthew with anxiety and prescribed him Xanax, an anti-anxiety medication.

Matthew, however, returned to Dr. Rausch’s office two days later on October 21, 2009,

because he was not experiencing significant relief from his symptoms. Dr. Rausch did not

conduct any additional tests at that time, but suggested that Matthew consider making an

appointment to see a psychiatrist. The following day, October 22, 2009, Matthew was still

experiencing symptoms and sought emergency treatment at Palos Community Hospital

where he was attended to by Dr. Brian Crowley. After hearing Matthew describe his

symptoms and learning that his primary care physician had recently diagnosed him with

anxiety, Dr. Crowley concluded that Matthew was suffering from an acute anxiety reaction

and prescribed a stronger anti-anxiety medication. Neither Dr. Rausch nor Dr. Crowley

ordered a CBC before making their respective diagnoses.

¶7 Three days later, on October 25, 2009, Matthew woke up experiencing slurred speech and

mobility problems with his left arm. His wife Joanne called 911 and he was taken to

Advocate Christ Medical Center (Advocate). Matthew arrived at Advocate at 8:57 a.m. and

underwent several tests including a CBC. Blood tests revealed that Matthew’s platelet count

was low and that there was evidence of damage to his red blood cells. Further testing

revealed that Matthew was experiencing liver and kidney failure as well as significant

neurological impairment. Matthew was ultimately diagnosed as having TTP by Dr. Hamad, a

hematologist, sometime after 4 p.m. that day. Dr. Hamad directed Dr. Murathanun, the

second-year resident in charge of Advocate’s Medical Intensive Care Unit (MICU), to

contact defendant AES, the company with which Advocate had a contract to provide

plasmapheresis services, to arrange for a plasmapheresis treatment for Matthew. The call to

AES was made at approximately 4:30 p.m. and defendant Zurawski was dispatched to

provide Matthew’s plasmapheresis treatment at 4:42 p.m. Zurawski, however, did not arrive

at Advocate to perform the procedure until approximately 11 p.m. By that time, Matthew had

gone into cardiac arrest. He was unable to be resuscitated and he was pronounced dead at

11:40 p.m. The cause of death was multiple organ failure.

¶8 Lawsuit

¶9 Following her husband’s death, plaintiff filed a complaint and an amendment thereto

advancing claims of medical negligence against various medical facilities and personnel

including Dr. Rausch, Dr. Crowley, Advocate, AES and Zurawski, alleging that the

defendants’ negligent failure to properly and timely diagnose and treat her husband caused

his death. In pertinent part, the second amended complaint alleged that AES and Zurawski

were negligent “in one of the following ways: (a) They failed to arrive promptly at Advocate

Christ to provide plasmapheresis services to [Matthew]; or (b) They failed to maintain or

enforce a reasonable quality control system to verify that nurses called to provide emergency

services at Advocate Christ actually arrived and performed the services in a timely manner;

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or (c) They failed to recognize the need to respond emergently to the call from Advocate

Christ for [Matthew]; or (d) *** [F]ailed to arrange for and provide plasmapheresis

equipment and services to Matthew [ ] when plasmapheresis had been ordered by a physician

attending to his care.” Defendants, in turn, filed responses denying plaintiff’s allegations of

negligence and the cause subsequently proceeded to a jury trial.

¶ 10 Trial

¶ 11 Joanne Gulino testified that her husband had been in good health up until October 2009.

She recalled that he began experiencing various symptoms around October 12, 2009,

including chills, fatigue and flu-like symptoms. Thereafter, on the morning of October 19,

2009, her husband complained that his heart was racing and that his sternum hurt. At that

point, Joanne called Dr. Rausch, and made an appointment for her husband later that day.

During Matthew’s appointment, he relayed his symptoms to a nurse who told him that his

symptoms “sound[ed] like anxiety.” Joanne recalled that Dr. Rausch ordered an EKG and a

stress test once he heard that Matthew had been experiencing symptoms of nausea,

lightheadedness, and shortness of breath. Ultimately, Dr. Rausch diagnosed her husband with

anxiety and provided him with a prescription for Xanax. Despite receiving the prescription,

Joanne testified that Matthew was still feeling poorly a few days later and had noticed some

bruising around his elbows. He returned to see Dr. Rausch on October 21, 2009, and was

examined for other areas of bruising, but none were found. At the conclusion of that

appointment, Dr. Rausch provided her husband with a referral for a psychiatrist.

¶ 12 The following day at approximately 1 p.m., Joanne testified that she received a phone call

from her husband, in which he complained that he felt like he “was going to have a heart

attack.” When she called Dr. Rausch’s office, a nurse advised her to take her husband to the

emergency room. In accordance with those instructions, Joanne took her husband to Palos

Community Hospital where they met with Dr. Crowley and informed him of the symptoms

Matthew had been experiencing. Dr. Crowley did not order any blood work, but he did

provide Matthew with an injection of Ativan, another anti-anxiety medication, which seemed

to help. Matthew then discontinued the Xanax and continued taking Ativan.

¶ 13 Three days later, however, on October 25, 2009, Matthew woke up with slurred speech

and his left arm and left side of his face appeared to be paralyzed. Joanne immediately called

911 and her husband was taken to Advocate. He remained in the E.R. for several hours

before he was ultimately diagnosed with TTP by Dr. Hamad. Joanne was subsequently told

that her husband would be transferred to the Advocate’s MICU where “they were going to do

this procedure called plasmapheresis.” She was not told that someone from outside of the

hospital would be coming to administer the procedure. Moreover, Joanne was not allowed to

be with her husband in the MICU because it was a sterile environment. As a result, Joanne

did not know her husband’s condition had deteriorated until she heard “code blue”

announced on the hospital’s intercom. She was subsequently informed sometime thereafter

that her husband had died.

¶ 14 Dr. Gregory Rausch confirmed that he was Matthew’s primary care physician and that he

conducted his annual physical exam on June 15, 2009. During that exam, Dr. Rausch

performed a CBC, which revealed that Matthew had high cholesterol. Matthew was

otherwise healthy as his creatine, bilirubin, platelets and hemoglobin levels were all within

the normal range. Dr. Rausch testified that he next saw Matthew on October 19, 2009. At that

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time, Matthew indicated that he had experienced an anxiety attack the previous night and

complained of shortness of breath and lightheadedness. Matthew also relayed that he was

experiencing job-related stress and stomach problems. Because Matthew had reported being

lightheaded and short of breath, Dr. Rausch ordered an EKG and a stress test to determine

whether Matthew had a cardiac issue. The results of Matthew’s EKG and stress test were

relatively normal. He also ordered a basic blood draw, but testified that the test was unrelated

to any of the symptoms of which Matthew complained; rather, it was a follow-up test to

check Matthew’s cholesterol levels. Unlike a CBC, a basic blood draw does not examine a

patient’s hemoglobin or platelet levels. He explained that he did not order a CBC at that time

since he had just ordered one back in June, the results of which were normal. The blood draw

revealed that Matthew’s cholesterol level remained high and that his creatine and bilirubin

levels were also “mild[ly]” elevated.

¶ 15 After considering Matthew’s history and the results of Matthew’s tests, Dr. Rausch

diagnosed Matthew with an anxiety panic disorder and provided him with a prescription for

Xanax, an anti-anxiety medication. He confirmed that Matthew returned to his office two

days later on October 21, 2009, because he did not feel he was getting significant relief from

the Xanax. He further confirmed that he did not order any additional testing at that time, and

instead suggested that Matthew consult with a psychiatrist. In addition, Dr. Rausch informed

Matthew that he could take more than the prescribed dose of Xanax if he “felt he needed to.”

The following day, Dr. Rausch recalled that he spoke to Matthew’s wife who told him that

Matthew had gone to the emergency room complaining of shortness of breath and

lightheadedness and that he received a shot of Ativan and was doing “much better.” Because

Matthew responded well to the Ativan, Dr. Rausch agreed to change Matthew’s prescription

from Xanax to Ativan.

¶ 16 On cross-examination, Dr. Rausch acknowledged that he had never diagnosed or treated a

patient with TTP. He further acknowledged that many conditions can cause symptoms of

shortness of breath and lightheadedness, but explained that he did not order a CBC in

October 2009, because he “had no reason to suspect a blood disorder as the cause of his

symptoms at that point.”

¶ 17 Dr. Brian Crowley confirmed that he met Matthew briefly in the emergency room at

Palos Community Hospital on October 22, 2009, after he had been assessed by one of the

E.R.’s triage nurses and had undergone an EKG. At that time, Matthew explained that he had

recently been seen by his primary care physician, and had been diagnosed with anxiety. He

further explained that he felt like he was having a heart attack and was afraid of dying.

Matthew, however, did not reveal that he had been experiencing shortness of breath or

abnormal bruising and Dr. Crowley did not recall observing bruising on Matthew’s body.

After meeting with Matthew, Dr. Crowley concluded that he had suffered an “acute anxiety

reaction,” or panic attack, and treated him with a shot of Ativan, an anti-anxiety medication.

¶ 18 Although he acknowledged that he considered Dr. Rausch’s diagnosis prior to making his

own diagnosis, Dr. Crowley testified that he conducted his own independent assessment of

Matthew and his symptoms. Nonetheless, Dr. Crowley admitted that he assumed that Dr.

Rausch had ruled out a physical illness as the cause of Matthew’s anxiety and that he did not

communicate with Dr. Rausch directly about Matthew or his symptoms. More specifically,

Dr. Crowley testified that he assumed that Dr. Rausch had run a CBC; however, he

confirmed that he did not ask Matthew if one had been ordered while he was under Dr.

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Rausch’s care. Dr. Crowley further confirmed that he did not order a CBC or any other

testing prior to diagnosing Matthew with an acute anxiety reaction because there was no

reason to think that Matthew had a blood disorder. He explained that the diagnosis was based

in “large part” on Matthew’s medical history as well as on the physical examination he

conducted of Matthew in the emergency room. In his professional opinion, the symptoms

Matthew described during his emergency room visit were “absolutely not” caused by, or

associated with, TTP. Dr. Crowley acknowledged, however, that anxiety is a diagnosis of

exclusion. That is, because a patient’s symptoms of anxiety can be caused by a physical

illness or a mental illness, a physical cause for a patient’s anxiety symptoms should be ruled

out before an anxiety diagnosis is made. In this case, Dr. Crowley testified that he was able to

rule out a physical cause for Matthew’s symptoms without ordering a CBC or any other

testing.

¶ 19 Dr. Rachamon Murathanun testified that in 2009, he was completing his internal

residency program at Advocate and became involved in Matthew’s care after he arrived in

Advocate’s emergency room on October 25, 2009. He recalled receiving a phone call from

Dr. Hamad, a hematologist at the hospital, sometime between 4 p.m. and 5 p.m. informing

him that a TTP patient was in the emergency room, and “the plan was to admit the patient in

the [M]ICU and get plasmapheresis done.” At Dr. Hamad’s instruction, Dr. Murathanun

testified that he placed a call to the plasmapheresis company to arrange for Matthew’s

treatment “as soon as possible.” He advised the company’s representative that fresh frozen

plasma (FFP) had been ordered and that Matthew’s catheter was about to be inserted. Dr.

Murathanun recalled that during the conversation, he was asked certain questions that he did

not know the answers to and that he handed the phone to Dr. Hamad. At the conclusion of the

call, Dr. Hamad told him that “the plasmapheresis people were on their way.” Thereafter, Dr.

Hamad provided him with additional instructions pertaining to Matthew’s treatment while he

awaited plasmapheresis. Specifically, Matthew was to be provided with three units of FFP,

transfused over a one-hour period, followed by two units of packed red blood cells. Dr.

Murathanun testified that he transcribed Dr. Hamad’s order, which he understood to be a

“STAT” order, at 5:05 p.m. and immediately gave it to the nursing staff with the expectation

that they would follow through with the order. After doing so, Dr. Murathanun returned to

the MICU to perform his other duties while he awaited Matthew’s transfer.

¶ 20 The next time Dr. Murathanun saw Matthew was at approximately 8 p.m. when he was

transferred to the MICU. He was unaware that the ER nursing staff had not administered all

three units of FFP that had been ordered for Matthew by Dr. Hamad; rather, he had only been

provided with one unit. By the time Matthew had been transferred to the MICU, Dr.

Murathanun noticed that Matthew’s condition had “definitely” deteriorated. His blood

pressure had dropped and he was “unstable.” In addition, he was intubated, hooked up to a

ventilator, and acidotic. Given Matthew’s condition, Dr. Murathanun testified that he

attempted to stabilize Matthew’s blood pressure and other body systems. Based on his

understanding of TTP and plasmapheresis, Dr. Murathanun believed that a patient had to be

medically stable in order to receive the treatment. He confirmed that Matthew went into

cardiac arrest at 10:40 p.m. and died thereafter. He further confirmed that Matthew did not

receive plasmapheresis prior to his death.

¶ 21 Lucita Rodriguez, a registered critical care nurse employed by Advocate, testified that

she was involved in Matthew’s care when he arrived in the emergency room on October 25,

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2009. She confirmed that sometime shortly after 4 p.m., when Matthew was diagnosed with

TTP, he was reassigned to the hospital’s MICU unit. Based on hospital records, Matthew’s

MICU bed became available at 5 p.m.; however, he was not actually transferred from the ER

to MICU until sometime after 7:30 p.m. Rodriguez further testified that an order for 3 units

of FFP was also entered into the hospital’s records sometime after 4 p.m., but acknowledged

that the order was not fulfilled and that Matthew only received one unit of FFP at 5:30 p.m.

even though it was a “STAT” order. Rodriguez recalled that she accompanied Matthew when

he was transferred to the MICU and informed his MICU nurse that Matthew had an

outstanding order for two additional units of FFP; however, she conceded that she did not

provide a written report to the nurse about the unfulfilled order despite hospital policy

requiring both a written and verbal report regarding the treatment of critical care patients.

¶ 22 Michelle Devon George, another critical care nurse involved in Matthew’s care, testified

that she became Matthew’s primary nurse when he was transferred to the hospital’s MICU on

October 25, 2009, at approximately 7:45 p.m. At that time, Matthew had a catheter in his

femoral groin and was on a ventilator. When she tested his vitals, Matthew’s temperature,

pulse and respiration were abnormal. George was aware that an order for plasmapheresis had

been placed, but she did not recall speaking to defendant Zurawski or any other AES

employee that evening. Moreover, she did not make any notation in Matthew’s records about

having any such conversation. If she had been contacted by Zurawski, George testified that

she would have informed her that Matthew had a catheter in place for plasmapheresis and

“would have told [her] to come.” Nurse George also testified that she was unaware that

Matthew had not received all three units of FFP that had been ordered before he was

transferred to the MICU. Had she been aware that the order was unfulfilled, she would have

fulfilled the order herself.

¶ 23 James Walsh, chief technologist in Advocate’s blood bank, confirmed that the blood bank

received several orders pertaining to Matthew’s treatment on October 25, 2009. One order

was for three units of FFP and Walsh testified that the three units were fully thawed by 5:15

p.m.; however, only one was actually administered. He did not know why the other two units

were not administered. Walsh further testified that he was not aware of any communications

between the blood bank and Zurawski that day and stated that it was not the blood bank’s

policy or practice to initiate phone calls to plasmapheresis nurses. He confirmed that all

blood orders are filled out by personnel from the hospital, not by personnel outside of the

hospital.

¶ 24 Mimoza Nikolla testified that in 2009, she was employed by Fresenius Medical Care,

parent company of AES, and worked as a plasmapheresis coordinator. In that capacity,

Nikolla would receive calls from various hospitals who were seeking specialized treatments

including plasmapheresis. In response to these calls, Nikolla would dispatch AES employees

to various hospitals to perform those procedures. She recalled that at approximately 4:31 p.m.

on October 25, 2009, she was advised of Matthew’s name, was told he had been admitted to

Advocate and was in need of plasmapheresis. Shortly thereafter at 4:39 p.m., Nikolla

contacted Lloyd, one of the nurses on call that day, asked if he was available to provide

Matthew’s plasmapheresis treatment, but was told that he was unable to do so. Accordingly,

at 4:42 p.m., Nikolla contacted Zurawski, another on-call nurse, who indicated that she had

just finished up a procedure at Central Du Page Hospital and was available to travel to

Advocate to provide Matthew’s plasmapheresis treatment. Nikolla testified that she advised

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Zurawski that she needed to go to Advocate “right away.” Although she recalled that she

spoke to Zurawski several more times throughout the evening, Nikolla could not remember

the substance of any of those conversations. When asked about her earlier deposition

testimony, Nikolla acknowledged that she had testified that AES’s on-call nurses were

supposed to respond “as soon as possible” to a plasmapheresis request. She further

acknowledged testifying that there are instances in which plasmapheresis must be

administered “quickly” and that the nurses “know the procedure” and “know the duty they

have on the days they are on call.”

¶ 25 Nikolla testified that following Matthew’s death, she subsequently learned that Zurawski

had not traveled directly to Advocate to administer Matthew’s plasmapheresis treatment;

rather, she had gone to Good Samaritan Hospital to perform a phlebotomy. Nikolla further

testified that the phlebotomy was a routine procedure that could have been delayed and that

she did not know why Zurawski had gone there to perform the procedure because Zurawski

had been informed that Matthew’s plasmapheresis treatment was an emergency. Nikolla

further testified that if she had known Zurawski had intended to stop at another hospital to

perform a phlebotomy procedure, she would have contacted another on-call nurse to

administer Matthew’s plasmapheresis treatment. Nikolla acknowledged, however, that before

Zurawski or any other nurse could administer a plasmapheresis treatment, the hospital would

have to prepare the patient for that treatment. Specifically, the hospital would have to insert a

catheter and central line into the patient and obtain and thaw fresh frozen plasma. She

estimated that these preparations generally take about 2 hours regardless of whether the

procedure is deemed “an emergency.” Therefore, Nikolla testified that a nurse responding to

a request for a plasmapheresis procedure would only need to respond immediately if all of

the preparations have been completed and the patient is actually “ready” for the treatment to

begin. Although Nikolla spoke to Zurawski several times that evening, she did not

specifically recall discussing whether Matthew’s catheter had been inserted or whether the

FFP needed for his procedure had been ordered.

¶ 26 Defendant Maria Zurawski confirmed on October 25, 2009, she was an “on-call” nurse

assigned to work for AES and that she had been performing plasmapheresis for several years.

She further confirmed that she received a phone call from Nikolla informing her that

Matthew needed emergent plasmapheresis at approximately 4:30 p.m. that day. At the time

she received the phone call, Zurawski testified that she was at Central Du Page Hospital

finishing up another procedure on a patient and that she informed Nikolla that she was

available to provide Matthew’s treatment. Instead of going directly to Advocate, however,

Zurawski testified that she first went to Good Samaritan Hospital where she performed a

phlebotomy procedure from 5:30 p.m. to 7 p.m. After that, she returned to her home in

Willowbrook, Illinois. She did not arrive at Advocate until almost 11 p.m.

¶ 27 When asked about the delay, Zurawski acknowledged that a plasmapheresis treatment for

a newly diagnosed TTP patient constitutes an emergency, but testified that certain

requirements need to be met before the treatment can be provided. She explained that when

there is an emergent need for a plasmapheresis treatment, “we have to provide the treatment

as soon as the patient has [a] catheter, the FFP is thawed, it’s prepared, and the patient is

stable.” Given that preparations for any plasmapheresis took time, Zurawski testified that it

was common practice for her and other on-call nurses to wait to go to the hospital until they

received word that plasma had been thawed and a plasmapheresis catheter had been placed.

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She explained: “Because it was dozens of times we were told that surgeon is on the way to

insert the catheter, and we were there and surgeon was called for some other procedure and

we were wasting time waiting for catheter, for fresh frozen plasma to be ready. So we

develop[ed] this practice to be pretty fast, but accurate, and [we] don’t wait at the hospital.”

Zurawski clarified that this policy was not an official AES company policy and that the

company’s official policy regarding the administration of emergency treatment was that care

should be provided without delay.

¶ 28 In this case, Zurawski testified that after being dispatched to perform Matthew’s

plasmapheresis treatment, she placed several calls to Advocate throughout the day to

determine whether the prerequisites for his treatment had been satisfied. Specifically, she

placed a phone call around 6 p.m. to Advocate’s MICU and asked a nurse, whom she

assumed was Matthew’s nurse, about Matthew’s catheter and was told that it was not in

place. She also called Advocate’s blood bank to check the status of the FFP needed for the

procedure. She made additional calls from her home phone to the MICU and blood bank

around 8:20 p.m. Zurawski testified that she did not leave her house to go to Advocate after

making those calls “because either [the] FFP wasn’t ready and the patient did not have [a]

catheter.” She further testified that “finally by 10:00 o’clock [she] was worried that

something was wrong” and placed another phone call to the blood bank and to Matthew’s

nurse. When she was unable to reach his nurse, Zurawski “didn’t wait for an answer [and]

went to the hospital.” She recalled arriving at the hospital at 11 p.m. Before she finished her

preparations, however, Matthew died.

¶ 29 After subsequently reviewing Matthew’s hospital records, Zurawski acknowledged that

Matthew’s plasmapheresis catheter had been inserted shortly before 5 p.m. She testified that

if she had been aware that Matthew’s catheter was in place when she received the

assignment, she would have traveled directly to Advocate instead of driving to Good

Samaritan Hospital where she performed the routine phlebotomy. Zurawski also

acknowledged that Matthew’s medical records indicated that he was not transferred to the

MICU until after 7:30 p.m. and thus, she could not have talked to his primary care MICU

nurse during the 6 p.m. phone call.

¶ 30 In addition to hearing testimony from medical professionals who were actually involved

in Matthew’s care, the jury also heard testimony from a number of expert witnesses.

¶ 31 Plaintiff’s Medical Experts

¶ 32 Dr. Mark Crowther, a practicing hematologist and professor of hematology, testified that

in “more than 50 percent of cases” in which people develop TTP, the cause remains

unknown. He described the typical presentation and diagnosis of a TTP patient as follows:

“[The patient] will present with nonspecific symptoms to their family physician or

to their primary care provider or to an emergency department with symptoms like

fatigue or shortness of breath or neurologic symptoms like headache or changes in

their neurologic status. And during the course of investigations for those changes

such as the new shortness of breath, they’ll have a complete blood cell count done.

And the complete blood cell count, when we look back at the number of platelets,

we’ll find that the number of platelets is lower than it should be. And when we look at

the characteristics of red blood cells, we’ll find that there’s evidence that the red

blood cells are being damaged as a result of the disease and that the combination of

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the typical presentation of fatigue, shortness of breath and maybe some new

neurologic findings plus the abnormalities on the complete blood cell count establish

the diagnosis of TTP.”

¶ 33 Based on his review of Matthew’s records, Dr. Crowther opined that the complaints that

Matthew voiced to Drs. Rausch and Crowley the week prior to his death were likely caused

by TTP. He explained that Matthew’s “presentation was very typical for what’s reported in

the literature of what we would call soft neurologic findings, anxiety, and, secondarily, the

shortness of breath or exertional limitation that he described.” His opinion that Matthew was

experiencing symptoms consistent with TTP when he sought treatment from Drs. Rausch and

Crowley was also bolstered by the fact that there was some evidence that Matthew had begun

to experience bruising. He explained: “if your platelet count is low, you will suffer bruising,

so many people who present with diseases with a very low platelet count will have apparent

bruising.”

¶ 34 Because TTP “is a disorder of the plasma,” Dr. Crowther testified that it is usually treated

in several ways. A doctor can “supplement the patient’s plasma by administering someone

else’s plasma in the form of a transfusion, *** or [by] remov[ing] some of the patient’s

plasma and replac[ing] it with plasma from a healthy blood donor.” In addition to

transfusions, TTP patients also undergo plasmapheresis, which is the “definitive therapy for

this disease.” He described plasmapheresis as “a procedure within which you take a sample

of the patient’s blood out. You remove the plasma from it. In the case of TTP you replace it

with plasma from a healthy blood donor and you give it back to the patient.” He testified that

plasmapheresis is essential and that “without effective plasmapheresis, patients with TTP

uniformly die from this disease. The mortality rate, the rate of death exceeds 90 percent. And

with plasmapheresis in large studies that have been done survival is routinely now over 90

percent, so nine out of ten patients will survive if they receive plasmapheresis for this

disorder.”

¶ 35 After reviewing Matthew’s records, Dr. Crowther agreed that Dr. Hamad’s order for

three units of FFP and two units of packed red blood cells was an appropriate means of

providing initial treatment to Matthew following his diagnosis, explaining that “the

recommendations and the studies that have been performed would suggest that the patient

should receive a continuous infusion of plasma until the plasmapheresis became available.” It

is apparent from Advocate’s records, however, that Matthew only received one unit of the

FFP that had been ordered by Dr. Hamad. Dr. Crowther opined that the single unit of FFP

that he received, standing alone, meant that Matthew’s TTP was “essentially untreated.” He

further testified that the failure to timely administer the plasmapheresis treatment also

contributed to Matthew’s death. He opined that had the treatment been administered in a

timely manner, Matthew would have likely survived. Specifically, he testified that had the

plasmapheresis treatment been administered as late as 9 p.m., Matthew would likely have

lived. Therefore, he concluded that Zurawski’s failure to arrive at the hospital in a timely

manner to administer the treatment proximately caused Matthew’s death. Dr. Crowther

reiterated that the plasmapheresis treatment could not have been performed in Zurawski’s

absence and that the only “therapy that could have saved his life was the prompt institution of

plasmapheresis and that was not delivered.”

¶ 36 Although Dr. Crowther acknowledged that Matthew was experiencing complications

caused by acute TTP when he arrived at Advocate, he testified that “it is common for patients

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with severe manifestations of TTP to recover completely” if they receive appropriate

treatment. He also acknowledged that Advocate’s charts revealed that Matthew’s blood

pressure was “somewhat variable” and that he had “evidence of damage to a number of

different organ systems” as early as 4 p.m. on October 25, 2009, but testified that

plasmapheresis should have nonetheless proceeded because without that treatment any TTP

patient would die. He emphasized that TTP is a “uniformly” fatal disease absent proper

treatment. Although he testified that he believed that Matthew would have survived had he

received a timely plasmapheresis treatment, Dr. Crowther acknowledged that “there are

people who die of TTP despite being given maximum therapy.” He conceded that a single

plasmapheresis treatment would not have cured Matthew and testified that Matthew would

have needed to undergo a series of treatments. However, he quantified Matthew’s chances

for survival “as greater than 50 percent” had he received a timely initial plasmapheresis

treatment.

¶ 37 Dr. Jordan Grumet, a physician board-certified in internal medicine, confirmed that he

reviewed Matthew’s medical records as well as the deposition testimony of the medical

professionals who provided medical care to Matthew prior to his death. Dr. Grumet testified

when a patient comes to a doctor with various symptoms, the standard of care requires the

physician to undertake a diagnostic process to identify the patient’s diagnosis. Doctors

typically conduct various tests to facilitate that process including CBCs, Complete Metabolic

Panels (CMP) and EKGs. Based on the results of those tests, Dr. Grumet explained that the

doctor will then begin to develop a list of differential diagnoses, i.e., “those things that we

think could be happening with the patient.”

¶ 38 Having reviewed the records completed by Dr. Rausch when he assessed Matthew on

October 19, 2009, and October 21, 2009, and diagnosed him with anxiety, Dr. Grumet opined

that he did not comply with the requisite standard of care. Namely, Dr. Grumet faulted Dr.

Rausch for failing to conduct a CBC test given the shortness of breath and dizziness that

Matthew had been experiencing. He explained:

“When we talk about the differential process, the patient came in with

anxiety-type symptoms as well as a number of other symptoms. The differential

process would say that before you say this is a primary anxiety disorder, you consider

the other symptoms, shortness of breath, dizziness, and then eventually the abnormal

blood tests. So these kinds of symptoms have a broad differential diagnosis. In other

words, lots of different things can cause these problems. So in order to narrow down

the potential life-threatening causes as well as the other causes so that we can treat the

patient appropriately, [a] CBC would be one of a number of tests that should have

been done.”

¶ 39 Dr. Grumet specifically noted that dizziness, in particular, could be caused by a number

of different ailments in addition to anxiety, including heart, lung, or blood abnormalities and

testified that a CBC would have been required to rule out blood disorders like anemia and

TTP. Accordingly, Dr. Grumet concluded that the standard of care required Dr. Rausch to

consider and rule out a blood disorder before diagnosing Matthew with anxiety and

prescribing an anti-anxiety drug. Instead of doing so, Dr. Rausch instead “focused on anxiety

and did one test to rule out other diseases with a stress test *** [and] neglected to think about

blood disorders and other disorders.” Had a CBC been performed, Dr. Grumet believed that

the results of that test would have revealed that Matthew’s hemoglobin and platelets were

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low given that there was some evidence in his medical records that Matthew had begun

experiencing some bruising.

¶ 40 Although Dr. Grumet acknowledged that Matthew had told Dr. Rausch that he believed

he was experiencing anxiety during his October 2009 visits, Dr. Grumet indicated that those

statements did not diminish Dr. Rausch’s duty to determine whether there was another cause

for the patient’s symptoms. He explained: “The patient is an important part of the diagnosis,

but they’re not everything. So [doctors] need to go past what the patient says and delve

further and find out.”

¶ 41 On cross-examination, Dr. Grumet acknowledged that he has never diagnosed a patient

with TTP and that he encountered only two instances of TTP during his training as a medical

resident. He also acknowledged that patients with anxiety can experience many of the same

symptoms experienced by Matthew including shortness of breath, dizziness, chest pain,

nausea, and fatigue.

¶ 42 Dr. Kenneth Corre, a specialist in emergency medicine, testified that the applicable

standard of care requires emergency care doctors to engage in a “differential diagnosis

process” to evaluate and diagnose patients. After reviewing relevant medical records, Dr.

Corre opined that the emergency room assessment performed by Dr. Crowley when Matthew

sought treatment at Palos Community Hospital “fell short of the standard of care.”

Specifically, he testified that Dr. Crowley “did not perform a more *** detailed assessment

of the signs and symptoms that [Matthew] presented with and he as a result [could not]

support the diagnosis of an acute anxiety reaction, which he came up with, based on what he

asked and what he documented, nor did he explain away the significant chest pain that

[Matthew] was having at the time of his visitation.” He specifically faulted Dr. Crowley for

failing to order additional testing to rule out a physical medical condition as the cause of

Matthew’s symptoms. He specified that one of the tests that Dr. Crowley should have

ordered was a CBC. In Dr. Corre’s opinion, it is “more probable than not” that symptoms

that Matthew complained of during his visit to Palos Community Hospital were the result of

TTP, a physical medical condition, rather than anxiety or an acute anxiety reaction and that

TTP should have been included in the differential diagnosis list. Dr. Corre further testified

that Dr. Crowley also deviated from the standard of care by not contacting Dr. Rausch to

inquire whether any blood tests had been done and what their findings were because that was

“critical information.” Notwithstanding Matthew’s recent examination by his primary care

physician, Dr. Corre testified Dr. Crowley had an “independent responsibility” to fully

examine and diagnose Matthew rather than simply rely on the diagnosis of the patient’s

primary care physician.

¶ 43 Deborah MacVean, a registered nurse with certifications in oncology and intravenous

therapy, was retained by plaintiff to evaluate the nursing care Matthew received prior to his

death. After reviewing pertinent medical records and deposition testimony, MacVean opined

that the conduct of Advocate’s nursing staff as well as that of Zurawski fell below the

requisite standard of care. With respect to the nurses at Advocate, MacVean found it

significant that the medical staff failed to fully comply with the doctor’s orders. Specifically,

in accordance with Dr. Hamad’s order, Matthew was to have been given three units of FFP

followed by two units of fresh packed red blood cells; however, the records showed that

Matthew only received one unit of FFP. Although MacVean conceded that circumstances

sometimes arise that make it impossible for a nurse to comply with a doctor’s orders, she

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testified that the standard of care requires the nurse to communicate those circumstances to

the doctor and “get further direction.” In Matthew’s case, Advocate’s nursing staff never

conveyed such difficulties to the doctor.

¶ 44 Regarding Zurawski, MacVean testified that she breached the standard of care by failing

to report “without delay” to Advocate after being informed of Matthew’s emergent status and

need for plasmapheresis. More specifically, she testified that Zurawski’s decision to travel

first to Good Samaritan Hospital to perform a routine phlebotomy and then to her residence

where she stayed for several hours instead of reporting directly to Advocate was a deviation

from reasonable nursing standards. Rather, the requisite standard of nursing care required

nurse Zurawski to travel directly to Advocate from Central Du Page Hospital, a trip that

would have taken approximately 45 minutes. Had she done so, MacVean estimated that

Zurawski would have arrived at Advocate at approximately 5:45 p.m. and could have

commenced plasmapheresis by 6:45 p.m. once she set up her machine. MacVean further

testified that any uncertainty that Zurawski may have had as to whether a catheter was in

place for Matthew’s plasmapheresis treatment would not have excused her failure to report

directly to Advocate after receiving the call.

¶ 45 On cross-examination, MacVean acknowledged that she had no personal experience

treating TTP patients and has never seen a plasmapheresis treatment being administered to a

patient. Moreover, she had not received any specialized training regarding the use of a

plasmapheresis machine. Based on her review of Matthew’s medical records, MacVean

acknowledged that he was not doing well when he was transferred from Advocate’s

emergency room to the MICU. MacVean also acknowledged that she testified in an earlier

deposition that the term “urgent” might have a different meaning as applied to emergency

room nurses versus plasmapheresis nurses.

¶ 46 Defense Expert Witnesses

¶ 47 Dr. Joseph Hennessy, a board-certified internal medicine physician, testified on behalf of

Dr. Rausch. He testified that TTP is an “extremely rare” disease and that he encountered a

TTP patient “maybe once or twice” during his residency. After reviewing Matthew’s medical

records, Dr. Hennessy opined that Dr. Rausch complied with the requisite standard of care

when he examined and treated Matthew in October 2009. Given Matthew’s complaint of

shortness of breath and light headedness as well as his history of high cholesterol, he testified

that Dr. Rausch was correct to consider whether there was a cardiac cause for those

symptoms and that his decision to order an EKG and a stress test complied with the standard

of care. Moreover, based on Matthew’s history and the results of his physical exam, Dr.

Hennessy testified that the standard of care did not require Dr. Rausch to order a CBC at that

time. He explained: “[Matthew] wasn’t complaining of bleeding. His examination was fine.

His vital signs were fine. He was not pale. He was pink on examination, so I don’t–I don’t

think he needed to order the CBC.” Dr. Hennessy further testified that even though results of

Matthew’s CMP indicated that his creatine and bilirubin levels were elevated, these

elevations would not cause a reasonably careful physician to suspect that Matthew had an

urgent medical condition. He explained that fluctuations of those levels are not uncommon

and that the standard of care would have simply required Dr. Rausch to repeat the blood test

in one to two months.

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¶ 48 On cross-examination, Dr. Hennessy acknowledged that the symptoms of shortness of

breath and lightheadedness of which Matthew complaint could also be attributed to a blood

disorder, like anemia. Although Dr. Rausch ruled out a cardiac cause for those symptoms,

Dr. Hennessy conceded that he did not rule out a blood disorder as a cause for those

symptoms. He further conceded that anxiety does not cause any change in a patient’s creatine

and bilirubin levels.

¶ 49 Dr. John Ortineau, a board-certified emergency care physician, testified as Dr. Crowley’s

expert witness. Having reviewed Matthew’s medical records, he opined that Dr. Crowley

“fully complied with the standard of care for an emergency physician” and that there was

“nothing that Dr. Crowley did or did not do that caused Mr. Gulino to die.” Although he

never treated a patient with TTP, Dr. Ortineau indicated that he was familiar with the

presentation of the blood disorder. He further indicated that “there was nothing about Mr.

Gulino’s symptoms, nothing about his examination findings, nothing about anything in his

history that would lead a physician to believe or even consider that he was suffering from

TTP or any other type of blood disorder.” Moreover, Dr. Ortineau opined that an acute

anxiety diagnosis was “a very reasonable diagnosis and one that fit[ ] the signs and

symptoms and everything about the [emergency room] encounter.” He acknowledged,

however, that looking at all the evidence “in hindsight,” Matthew “likely had only one

condition, one illness, and that was TTP.”

¶ 50 Dr. Phillip Hoffman testified on behalf of Advocate. Board certified in internal medicine,

oncology and hematology, Dr. Hoffman testified that TTP has a high mortality rate unless it

is diagnosed and treated quickly and that the outcome of a TTP patient depends upon how

sick he is at the time of his diagnosis and treatment. He explained: “basically the sicker you

are, the harder it is to turn it around, and the more likely you are to die from the condition.”

He testified that the records in Matthew’s case revealed that he was already experiencing

multi-system organ failure by the time Dr. Hamad diagnosed him as having TTP. Based on

the severity of Matthew’s condition at the time he was diagnosed, Dr. Hoffman opined that

neither FFP nor plasmapheresis would have been able to save him and that he would have

died whether or not he received the treatment. He agreed however, that most TTP patients

who receive prompt and appropriate plasmapheresis treatment survive.

¶ 51 Dr. Scott Neely testified on behalf of AES and Zurawski. He is board-certified in many

disciplines including internal medicine, pulmonary medicine, critical care, hospice and

palliative care. During the years that he has been practicing, Dr. Neely estimated that he

encounters one TTP case per year and has seen many cases in which a TTP patient suffers

from multi-system organ failure caused by their illness. Having reviewed Matthew’s medical

records, Dr. Neely testified that it was clear that Matthew was suffering from severe organ

failure caused by TTP when he arrived at Advocate on October 25, 2009. He noted that lab

results taken at 12:20 p.m. indicated a high level of creatine, which is a “sign[ ] of kidney

failure.” The creatine level continued to rise throughout the day, going from 1.62 at 12:20

p.m. to 2.8 at 5:17 p.m. He explained that creatine “doesn’t go up that fast under normal

circumstances” and that this drastic sudden increase indicated that Matthew was experiencing

“almost complete shutdown of [his] kidneys” as well as “probably a lot of tissue damage.”

Moreover, Matthew’s blood pressure readings were also “very low” and Dr. Neely opined

that he was in shock by the time he was transferred to Advocate’s MICU at 7:43 p.m. Given

Matthew’s precarious state, Dr. Neely ultimately concluded that even if he had undergone

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plasmapheresis by 6:45 p.m. on October 25, 2009, it “would [not] have been beneficial to

him at that time.” He explained:

“I think the most important reason for saying that is that by 6:00 or 7:00 o’clock

at night, he had already developed an extraordinary amount of tissue damage. What

appears to have happened, looking at his clinical course and looking at the events that

occurred over the entire evening as well as looking at the lab tests, is that he sustained

very severe multiple organ damage over the course of that day. *** If somebody has

acute renal failure that causes the creatine to go from 1.6 to 2.8 something over a

period of five hours, by 5:00 o’clock or 4:30 in the afternoon when you measure that

with a chemistry test, the damage is already done. If somebody has tissue damage

probably in multiple organs, probably the muscles, the gut, the brain, the liver, the

kidneys, if somebody had such severe tissue damage that their lactic acid goes to over

seven at 5:00 o’clock at night, the damage is already done. So going back and

attempting to undo the original insult, you would try to do it. I mean any reasonable

intensive care specialist I think or hematologist would still try to treat the underlying

problem, but what you can see in this case is that a very accelerated phase of

essentially actively dying has started to occur already. The slope is extremely steep.

The damage to all of his organs have essentially already–has essentially already

occurred. So going back and doing plasmapheresis might begin to treat the underlying

problem, the TTP, but it’s going to do absolutely nothing for all the organ damage

that’s already occurred. And that’s what he died of.”

¶ 52 Dr. Neely further testified that even if the plasmapheresis equipment had been ready by

6:45 p.m., the treatment could not have been safely administered to Matthew at that time

given his unstable blood pressure. In his medical opinion, Matthew could not have tolerated

the treatment and attempting to administer plasmapheresis at that time “would have

accelerated his instability.” On cross-examination, however, Dr. Neely acknowledged that

most TTP patients survive if they are given prompt and appropriate treatment and that

plasmapheresis allows “more than 80 percent of people with TTP [to] survive.”

¶ 53 Dr. Gerald Soff also testified on behalf of AES and Zurawski. Board-certified in

hematology and internal medicine, Dr. Soff acknowledged that TTP is a “relatively rare

disease,” but stated that it was one that he encountered “on a somewhat regular basis” during

his practice as a hematologist. Specifically, he estimated that he has treated between 50 to 70

TTP patients during his career and has overseen numerous plasmapheresis treatments.

Although he agreed that plasmapheresis treatments should be administered to TTP patients

“in a prompt fashion,” he stated that there was “no fixed number” as to when the treatment

must be given. Based on his review of pertinent medical records, Dr. Soff opined that “no

action or inaction by nurse Zurawski or AES contributed to the death of [Matthew].”

Although Dr. Soff was prepared to testify that Matthew would have died had plasmapheresis

begun as early as 6:45 p.m., the circuit court precluded him from doing so because it was

“cumulative testimony” given that Dr. Neely had offered the same opinion. The circuit court

also precluded Dr. Soff from testifying that a reasonable hematologist would defer to a

MICU physician’s decision to stabilize a patient’s blood pressure before allowing

plasmapheresis to proceed, reasoning that such testimony was not relevant.

¶ 54 Kelly Dyar, a registered dialysis nurse and plasmapheresis specialist, was called to

provide expert testimony pertaining to the standard of nursing care applicable to Zurawski.

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After her review of relevant medical records and deposition testimony, Dyar opined that

Zurawski complied with the requisite standard of care. In doing so, Dyar acknowledged that

“plasmapheresis is the mainstay of therapy for TTP” and that it should be administered “as

soon as possible,” but explained that it is not a procedure that can begin immediately; rather,

a number of prerequisites must be satisfied before the treatment can commence. Specifically,

medications have to be ordered, a catheter has to be placed, and plasma has to be ordered and

prepared. Accordingly, because those prerequisites had not been satisfied when Zurawski

received the phone call regarding Matthew’s plasmapheresis treatment, Dyer testified that

Zurawski did not violate the standard of care by going to Good Samaritan Hospital to

perform a phlebotomy procedure. Dyer further testified that Zurawski did not violate the

applicable standard of care when she went to her residence in Willowbrook, Illinois,

immediately after the phlebotomy because Matthew “was not yet ready for the treatment to

be done.” Notwithstanding the fact that Matthew’s plasmapheresis treatment was considered

an “emergency,” Dyer reiterated that the standard of care did not require Zurawski to go to

Advocate until all of the prerequisites for the treatment were satisfied. She emphasized that

“the things that had to be ready were things that were outside of Ms. Zurawski’s control.

They were not tasks that she herself could complete.”

¶ 55 After hearing the aforementioned testimony as well as the arguments of the parties, the

jury commenced deliberations and ultimately returned with its verdict. The jury found in

favor of Drs. Rausch and Crowley and against Advocate, AES, and Zurawski. Plaintiff was

awarded damages in the amount of $12,261,131. Advocate subsequently settled with plaintiff

and defendants AES and Zurawski filed a posttrial motion challenging the verdict. Following

a hearing, the circuit court denied defendants’ posttrial motion. In doing so, the court stated:

“This case was probably the clearest case of a deviation from the standard of care by a

defendant that the Court has seen in its 50 to 100 medical malpractice cases.” This appeal

followed.

¶ 56 ANALYSIS

¶ 57 On appeal, defendants AES and Zurawski first contend that the circuit court erred in

denying their motion for a judgment n.o.v. They argue that plaintiff failed to introduce any

competent evidence that Zurawski or AES breached the applicable nursing standard of care

and failed to prove that Zurawski’s conduct proximately caused Matthew’s death.

Alternatively, they suggest that the verdict is against the manifest weight of the evidence.

¶ 58 Plaintiff responds that the evidence presented at trial established that Zurawski’s failure

to promptly travel to Advocate hospital to perform Matthew’s plasmapheresis treatment both

deviated from the standard of care and proximately caused his death. Accordingly, plaintiff

argues that the defendants’ efforts to challenge the verdict are without merit.

¶ 59 A motion for a judgment n.o.v. should only be granted in limited circumstances, such as

when the evidence, viewed in the light most favorable to the opponent, so overwhelmingly

favors the movant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern

R.R. Co., 37 Ill. 2d 494, 504 (1967). When reviewing a ruling on a motion for a judgment

n.o.v., a reviewing court will not reweigh the evidence or evaluate the credibility of the

witnesses, as these functions are within the unique province of the jury. Board of Trustees of

Community College District No. 508 v. Coopers & Lybrand, 208 Ill. 2d 259, 274 (2003);

Drakeford v. University of Chicago Hospitals, 2013 IL App (1st) 111366, ¶ 7. Ultimately, the

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standard for entry of a judgment n.o.v. is “high” (York v. Rush-Presbyterian-St. Luke’s

Medical Center, 222 Ill. 2d 147, 178 (2006) (quoting Pasquale v. Speed Products

Engineering, 166 Ill. 2d 337, 351 (1995))) and is “limited to extreme situations only”

(internal quotation marks omitted) (Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 548 (2005)

(quoting Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1125 (2000))).

Indeed, a motion for a judgment n.o.v. may not be granted simply because a verdict is against

the manifest weight of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). A

judgment n.o.v. is also not appropriate “if there is any evidence, together with reasonable

inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the

assessment of credibility of the witnesses or the determination regarding conflicting evidence

is decisive to the outcome.” Id. In addition, a judgment n.o.v. is “not appropriate if

‘reasonable minds might differ as to the inferences or conclusions to be drawn from the facts

presented.’ ” Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663, ¶ 116 (quoting

Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995)). When reviewing a

circuit court’s ruling on a motion for judgment n.o.v., the evidence must be considered in the

light most favorable to the party opposing the motion. Thacker v. UNR Industries, Inc., 151

Ill. 2d 343, 353-54 (1992); Ramirez, 2014 IL App (1st) 123663, ¶ 116. A motion for a

judgment n.o.v. presents a question of law as to whether there was a complete failure to

substantiate a key element of the plaintiff’s case, and as such, the circuit court’s ruling on

such a motion is subject to de novo review. York, 222 Ill. 2d at 178; McDonald v. Northeast

Illinois Regional Commuter R.R. Corp., 2013 IL App (1st) 102766, ¶ 20.

¶ 60 To prevail on a medical negligence claim, it is incumbent upon the plaintiff to establish:

(1) the standard of care against which the medical professional’s conduct is to be measured;

(2) a negligent failure by the medical professional to comply with that standard of care; and

(3) that the medical professional’s negligent conduct proximately caused the injuries that the

plaintiff seeks to redress. Neade v. Portes, 193 Ill. 2d 433, 443-44 (2000); Purtill v. Hess,

111 Ill. 2d 229, 241-42 (1986); Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 292 (2008).

Unless the medical professional’s negligence is so grossly apparent or the treatment at issue

is so common that it is considered to be within the common knowledge of a layperson, expert

medical testimony is required to establish the applicable standard of care and the medical

professional’s deviation therefrom. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004);

Purtill, 111 Ill. 2d at 242.

¶ 61 Here, defendants argue that plaintiff failed to present competent evidence to establish the

standard of care against which Zurawski’s conduct was to be measured or that her conduct

proximately caused Matthew’s death. We will address each of these arguments in turn.

¶ 62 Standard of Care

¶ 63 Defendants first contend that Deborah MacVean, the expert plaintiff relied upon to

establish the requisite standard of nursing care, was not qualified to offer such testimony.

Absent any admissible “expert testimony on which to base a judgment against them,”

defendants argue that they are necessarily entitled to a judgment n.o.v.

¶ 64 As a general rule, “[a] person will be allowed to testify as an expert if [her] experience

and qualifications afford [her] knowledge that is not common to laypersons, and where [her]

testimony will aid the trier of fact in reaching its conclusions.” Thompson v. Gordon, 221 Ill.

2d 414, 428 (2006). With respect to medical expert testimony in particular, there are two

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foundational requirements: “the health-care expert witness must be a licensed member of the

school of medicine about which the expert proposes to testify” and “the expert must be

familiar with the methods, procedures and treatments ordinarily observed by other

health-care providers in either the defendant’s community or a similar community.” Sullivan,

209 Ill. 2d at 114-15 (citing Jones v. O’Young, 154 Ill. 2d 39, 43 (1992), quoting Purtill, 111

Ill. 2d at 242-43). Once these foundational elements are met, the circuit court is afforded the

discretion to allow the healthcare professional to provide testimony about the applicable

standard of care (Willaby v. Bendersky, 383 Ill. App. 3d 853 (2008)) and the court’s decision

will not be reversed absent an abuse of discretion (Thompson v. Gordon, 221 Ill. 2d 414, 428

(2006); Bangaly v. Baggiani, 2014 IL App (1st) 123760, ¶ 157). The abuse of discretion

standard is the most deferential standard of review (Kayman v. Rasheed, 2015 IL App (1st)

132631, ¶ 68), and as such, a ruling will only be deemed an abuse of discretion where it is

unreasonable and arbitrary or where no reasonable person would take the view adopted by

the circuit court (Petraski v. Thedos, 382 Ill. App. 3d 22, 27 (2008); Bangaly, 2014 IL App

(1st) 123760, ¶ 157).

¶ 65 In this case, there is no dispute that nurse MacVean held the requisite nursing license to

satisfy the first foundational element as she testified that she worked in the nursing

profession for more than 35 years. There is similarly no dispute that nurse MacVean lacked

familiarity and experience with TTP patients and plasmapheresis; rather, her areas of practice

included intensive care nursing and oncology nursing. Although defendants argue that this

lack of experience and familiarity precluded MacVean from offering standard of care

testimony in this case, we disagree. Nurse MacVean’s testimony was not offered by plaintiff

to contest the quality or nature of Matthew’s plasmapheresis treatment. Indeed, plaintiff’s

negligence claim against defendants did not pertain to the quality of the plasmapheresis care

defendants provided; rather, it was premised on defendants’ failure to provide any

plasmapheresis treatment at all. Therefore, the fact that MacVean was not a plasmapheresis

nurse did not preclude her from offering testimony about basic nursing protocols, proper

communications between nurses and other health care providers and the standard of care

applicable to nurses who receive STAT orders, areas in which she was familiar. See Jones,

154 Ill. 2d at 43 (“Whether the expert is qualified to testify is not dependent on whether he is

a member of the same specialty or subspecialty as the defendant but, rather, whether the

allegations of negligence concern matters within his knowledge and observation.”); see also

Silverstein v. Brander, 317 Ill. App. 3d 1000, 1008 (2000) (finding that an internist could

offer standard of care testimony in a case against a defendant physiatrist where the testimony

pertained solely to the physiatrist’s medical management of the patient, an area in which the

internist “demonstrated adequate expertise”). Accordingly, we find defendants’ claim that

MacVean lacked the requisite experience and knowledge to provide standard of care

testimony to be without merit.

¶ 66 Turning to the testimony that MacVean did provide, we further find that defendants’

contention that plaintiff failed to present admissible evidence to establish the applicable

standard of care and Zurawski’s breach thereof, to be similarly without merit. Relying on her

years of experience as a practicing nurse, MacVean testified that reasonable standards of

nursing care as well as AES’s own policies required Zurawski to respond “without delay” to

Advocate once she was dispatched to provide Matthew’s plasmapheresis treatment. In doing

so, MacVean emphasized that “it was an emergency procedure and she needed to get there.”

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Accordingly, she testified that Zurawski deviated from the standard of care when she traveled

to Good Samaritan Hospital to provide a routine phlebotomy and then to her residence

instead of responding directly to Advocate as Nikolla and Drs. Hamad and Murathanun

expected her to do. MacVean further testified that Zurawski’s belief that Matthew’s catheter

was not in place did not excuse her failure to report directly to Advocate following her

dispatch. She explained: “in an emergency the usual order of events don’t always happen”

and that a nurse has to respond “as soon as possible without any delay *** for the good of the

patient and the doctors’ orders.” Given MacVean’s testimony, we cannot agree with

defendants that plaintiff failed to provide evidence to establish the applicable standard of care

and defendants’ breach of that care, both of which are necessary elements in a medical

negligence claim.

¶ 67 Even if we were to find MacVean’s testimony insufficient to establish the applicable

standard of care and breach thereof, we would still be unpersuaded that a judgment n.o.v. was

warranted in this care. As plaintiff correctly observes, Illinois courts have recognized that

expert medical testimony is not required where a defendant health-care provider’s conduct is

so grossly negligent that a layperson would understand that the conduct deviated from the

standard of care expected of a medical professional without the assistance of an expert. See,

e.g., Heastie v. Roberts, 226 Ill. 2d 515, 554-55 (2007) (finding that the plaintiff was not

required to call a medical expert to testify that the requisite standard of care requires medical

personnel to perform a contraband search on any agitated patient prior to restraining and

isolating that patient, reasoning: “Whenever a patient is so agitated that he poses a danger to

himself and others, as the plaintiff in this case unquestionably was, basic common sense

dictates that before he is tied down and left alone, any implements he could use to harm

himself or facilitate his escape should be removed from his person. *** One need not be a

doctor, a nurse or any other kind of health provider to appreciate these risks.”); Willaby, 383

Ill. App. 3d at 865-66 (finding that the plaintiff was not obligated to present a medical expert

to testify that standard of care requires medical personnel to keep an accurate count of

sponges used during surgery to prevent a sponge from being left in a patient’s body because a

layperson could easily understand that the failure to do so constituted gross negligence).

Arguably, Zurawski’s conduct in failing to report to Advocate to perform a procedure that

she understood to constitute an emergency until six hours after being directed to do so was so

grossly negligent that expert witness testimony regarding the requisite standard of care was

not even required in the instant case.

¶ 68 Proximate Cause

¶ 69 Defendants nonetheless argue that they are entitled to a judgment n.o.v. because plaintiff

“failed to prove that Zurawski’s conduct was a proximate cause of [Matthew’s] death.”

Specifically, they argue that “even if nurse Zurawski had arrived at Advocate within an hour

of the initial call and set up for plasmapheresis within an hour of that, as plaintiff’s nursing

expert testified she should have, there was no evidence that Zurawski would have been able

to administer plasmapheresis at any time before [Matthew’s] death. The events in

[Matthew’s] final hours make clear that there was no opportunity to perform plasmapheresis

that were outside of Zurawski’s control and that were exclusively within Advocate’s

control.”

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¶ 70 In medical malpractice cases, the element of proximate cause must be established through

expert testimony to a reasonable degree of medical certainty. Simmons v. Garces, 198 Ill. 2d

541, 556 (2002); Buck v. Charletta, 2013 IL App (1st) 122144, ¶ 59. To establish proximate

causation, the plaintiff must prove that the defendant’s negligence “ ‘more probably than

not’ ” caused the plaintiff’s injury. Holton v. Memorial Hospital, 176 Ill. 2d 95, 107 (1997).

Proximate cause may be established where the defendant’s conduct “increased the risk of

harm” to the patient or “lessened the effectiveness” of the patient’s treatment. Id. at 105. In

order to do so, the “plaintiff does not need to present unequivocal or unqualified evidence of

causation but can meet his burden through the introduction of circumstantial evidence from

which a jury may infer other connected facts which usually reasonably follow according to

*** common experience.” (Internal quotation marks omitted.) Knauerhaze v. Nelson, 361 Ill.

App. 3d 538, 549 (2005) (quoting Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 357

(1992)). The causal connection, however, “must not be contingent, speculative, or merely

possible.” Ayala v. Murad, 367 Ill. App. 3d 591, 601 (2006). At the same time, a plaintiff is

“not required to show in absolute terms that a different outcome would have occurred, as

such certainty is never possible.” Wodziak v. Kash, 278 Ill. App. 3d 901, 913 (1996).

Generally, “[i]ssues involving proximate cause are fact specific and therefore uniquely for

the jury’s determination.” Holton, 176 Ill. 2d at 107.

¶ 71 Here, Dr. Crowther, the hematologist who testified on behalf of plaintiff, stated

unequivocally that plasmapheresis is essential to treat TTP and that “without effective

plasmapheresis, patients with TTP routinely die from this disease.” He further testified that

had Matthew received his first plasmapheresis treatment by as late as 9 p.m. on October 25,

2009, he would have likely survived. This is true notwithstanding the fact that Matthew had

damage to his organ systems and “somewhat variable” blood pressure at that time. Dr.

Crowther specifically quantified Matthew’s chances for survival as “greater than 50 percent”

had Zurawski promptly arrived at Advocate and provided a timely plasmapheresis treatment.

He specifically emphasized that plasmapheresis could not have been administered to

Matthew in her absence.

¶ 72 Defendants, in turn, presented contradictory testimony from Dr. Neely who opined that

because Matthew was already experiencing multi-system organ failure by the time he was

properly diagnosed with TTP, a plasmapheresis treatment “would [not] have been beneficial

to him at that time.” Dr. Neely further testified that a plasmapheresis treatment “would have

accelerated his instability” and could not have been administered safely. Both Dr. Neely and

defendants’ other expert, Dr. Soff, testified that nothing that Zurawski or AES did or did not

do contributed to, or caused, Matthew’s death.

¶ 73 Viewing the aforementioned testimony in the light most favorable to plaintiff (Pedrick,

37 Ill. 2d at 504), we find that the jury had sufficient evidence with which to conclude that

defendants proximately caused Matthew’s death. Plaintiff’s expert acknowledged Matthew’s

precarious physical health at the time of his diagnosis, but opined that that his chances for

survival would have been “greater than 50 percent” had Zurawski delivered a timely

plasmapheresis treatment. Defendants’ experts, in turn, opined that plasmapheresis would not

have saved Matthew because he was already experiencing multi-system organ failure at the

time of his diagnosis and that no actions or inactions on the part of AES or Zurawski

contributed to or caused Matthew’s death. Faced with contradictory testimony from multiple

experts, it was the jury’s responsibility to consider those discrepancies and evaluate the

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credibility of those witnesses, and it is not this court’s duty to reweigh the evidence and make

our own determinations. Maple, 151 Ill. 2d at 451-52; Knauerhaze, 361 Ill. App. 3d at 550.

We acknowledge that defendants cite to a number of shortcomings on the part of Advocate,

which would have purportedly precluded Zurawski from performing plasmapheresis even if

she had traveled immediately to Advocate after she was dispatched by Nikolla. Specifically,

they cite to Advocate’s delay in transferring Matthew to the MICU, the blood bank’s delay in

thawing FFP, and Matthew’s deteriorating and unstable physical state as conditions which

would have prevented her from administering his treatment. The fact that plaintiff alleged,

and the jury found, Advocate negligent, however, does not preclude a finding that defendants

also proximately caused Matthew’s death. Applying the standard of review applicable to the

denial of a judgment n.o.v., we are unable to conclude that the jury’s verdict is unfounded or

that the evidence overwhelmingly favors defendants that its verdict cannot stand. Maple, 151

Ill. 2d at 451-52; Knauerhaze, 361 Ill. App. 3d at 550. Accordingly, the circuit court did not

err in denying defendants’ motion for a judgment n.o.v.

¶ 74 We similarly reject defendants’ alternative argument that the jury’s verdict is against the

manifest weight of the evidence. As the trier of fact, it is the jury’s role to weigh the

evidence, make credibility determinations, and to resolve conflicts in expert testimony. York

v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 179 (2006); McHale v.

W.D. Trucking, Inc., 2015 IL App (1st) 132625, ¶ 60. When reviewing a jury verdict, a

reviewing court may not substitute its judgment for that of the trier of fact and will not

disturb the verdict unless it is against the manifest weight of the evidence. Snelson v. Kamm,

204 Ill. 2d 1, 34 (2003); Maple v. Gustafson, 151 Ill. 2d 445 (1992). A verdict is against the

manifest weight of the evidence only where the opposite conclusion is clearly apparent or

where the jury’s findings appear to be unreasonable, arbitrary and not based on the evidence.

Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 38; Leonardi v. Loyola

University of Chicago, 168 Ill. 2d 83, 106 (1995).

¶ 75 As set forth above, the jury heard testimony from various qualified experts who provided

their opinions about the standard of care and whether or not a timely plasmapheresis

treatment could have saved Matthew’s life given that he was experiencing multi-system

organ failure at the time of his TTP diagnosis. Given the verdict, the jury evidently found

plaintiff’s experts more credible and this court cannot usurp the function of the jury and

substitute our judgment for that of the trier of fact. York, 222 Ill. 2d at 179. The mere fact that

the jury resolved the conflicting testimony against defendants does not render the verdict in

this case against the manifest weight of the evidence. See, e.g., Snelson, 204 Ill. 2d at 35-36

(rejecting the defendant’s claim that the verdict was against the manifest weight of the

evidence where the case involved a “classic battle of the experts” in which the jury resolved

the discrepant testimony in favor of the plaintiff (internal quotation marks omitted)); Sottile

v. Carney, 230 Ill. App. 3d 1023, 1031 (1992) (rejecting the plaintiff’s claim that the jury

verdict was against the manifest weight of the evidence where the “medical expert testimony

[was] merely conflicting”). Ultimately, following our review of the trial record, we are

unable to conclude that the jury’s verdict is arbitrary, unreasonable and not based on the

evidence. We therefore reject defendants’ argument that the verdict is against the manifest

weight of the evidence.

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¶ 76 Rulings on Expert Testimony

¶ 77 Defendants next contest several of the circuit court’s rulings pertaining to the appropriate

scope of expert witness testimony. First, they argue that the court abused its discretion when

it allowed plaintiff’s causation expert, Dr. Crowther, to testify about the standard of care

applicable to plasmapheresis nurses.

¶ 78 It is well-established that the admissibility of evidence is within the discretion of the

circuit court. Snelson, 204 Ill. 2d at 33; Hubbard v. Sherman Hospital, 292 Ill. App. 3d 148,

155 (1997). More specifically, as set forth above, the circuit court is afforded the discretion

whether or not to allow a healthcare professional to provide expert testimony pertaining to

the applicable standard of care. Thompson, 221 Ill. 2d at 428.

¶ 79 In this case, prior to Dr. Crowther’s testimony, defendants filed a motion in limine

seeking to bar Dr. Crowther from offering testimony pertaining to the standard of care

applicable to plasmapheresis nurses. After hearing arguments, the circuit court properly

granted that motion. See Sullivan, 209 Ill. 2d at 123-24 (upholding a circuit court’s ruling

that a doctor was not competent to provide nursing standard of care testimony because

nursing is unique school of medicine that requires a separate license). In doing so, however,

the court ruled that Dr. Crowther could discuss personal practice and experience to provide

the basis for his opinions.

¶ 80 In accordance with the circuit court’s ruling, Dr. Crowther relied upon his personal

experiences with plasmapheresis nurses to provide testimony about what Dr. Hamad would

have expected after contacting AES and placing the order for Matthew’s plasmapheresis

treatment. Specifically, he testified that once Dr. Hamad concluded his phone call and told

Dr. Murathanun that “the plasmapheresis people were on the way,” Dr. Hamad would have

expected that Zurawski was actually on her way, that she would be arriving shortly and

would be able to start Matthew’s plasmapheresis treatment quickly. Given the time of the

phone call and his expectation that nurses respond immediately to emergency calls, Dr.

Crowther testified that Dr. Hamad would have expected Zurawski to arrive around 6 p.m.

Moreover, based on his prior experiences with, and expectations of, plasmapheresis nurses,

Dr. Crowther further testified that Advocate’s doctors would have expected that once

Zurawski arrived, she would have set up the machinery and made arrangements to ensure

that all the necessary supplies, including plasma, were available for her to begin the

treatment. Although defendants argue that such testimony “violated both the spirit and letter

of the order in limine,” we do not find that Dr. Crowther’s testimony constituted improper

standard of care evidence; rather such testimony was, as the circuit court found, relevant to

provide the appropriate contextual background for his opinions. However, to the extent that

any of Dr. Crowther’s testimony could be deemed improper standard of care evidence, the

testimony was necessarily harmless given it was duplicative of that offered by MacVean.

See, e.g., Steele v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 107 (recognizing that

improperly admitted testimony is harmless where it is duplicative of other properly admitted

testimony) see also Willaby, 383 Ill. App. 3d at 862 (recognizing the general rule that an

improper comment that violates a motion in limine will only constitute reversible error where

the other party has been substantially prejudiced).

¶ 81 Defendants next argue that the circuit court “abused its discretion by limiting various

opinions of AES’s and nurse Zurawski’s hematology expert, Dr. Soff, which denied them the

opportunity to rebut Dr. Crowther’s testimony.” Defendants first argue that the circuit court

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erred when it precluded Dr. Soff from testifying that plasmapheresis would not have saved

Matthew because he had already suffered extensive tissue damage and multi-organ failure at

the time of his diagnosis. Although its critical care expert, Dr. Neely, had offered the same

opinion, defendants argue that the circuit court erred in barring Dr. Soff’s testimony as

cumulative given that the two doctors were from different specialties.

¶ 82 The decision whether to exclude cumulative evidence is a matter that is within the sound

discretion of the circuit court. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 495 (2002). This

discretion includes the ability to limit the number of expert witnesses a party may call upon

to testify and to bar cumulative testimony. Dillon, 199 Ill. 2d at 495; Hubbard v. Sherman

Hospital, 292 Ill. App. 3d 148, 155 (1997).

¶ 83 At trial, the jury heard Advocate’s expert, Dr. Hoffman, and defendants’ critical care

expert, Dr. Neely, testify that plasmapheresis could not have saved Matthew’s life because he

had already suffered irreversible tissue damage and multi-system organ failure at the time of

his diagnosis. When defendants sought to elicit the same testimony from Dr. Soff, plaintiff

objected arguing that the jury had already heard the same opinion twice and that Dr. Soff’s

testimony would constitute cumulative evidence. The circuit court agreed, but permitted him

to testify that no action or inaction on the part of Zurawski or AES contributed to or caused

Matthew’s death. We find that this constitutes error. Although Advocate’s hematology expert

provided the same testimony, AES was entitled to call its own hematology expert to rebut the

testimony of plaintiff’s expert. Taylor v. County of Cook, 2011 IL App (1st) 093085, ¶ 36

(“When multiple defendants are named in a case, each defendant is entitled to present an

expert in defense of the case.” (citing Tsoukas v. Lapid, 315 Ill. App. 3d 372, 383 (2000))).

Moreover, given that Dr. Soff’s specialty was hematology and Dr. Neely’s specialty was

critical care, Dr. Neely’s testimony should not have precluded defendants from calling upon

Dr. Soff to render the same opinion. Id. ¶ 35 (finding that the circuit court did not err in

allowing the defendant to call three different medical experts who offered the same opinion

because the doctors all had different specialties).

¶ 84 Although we agree with defendants that the circuit court erred in limiting Dr. Soff’s

testimony, we do not find that the error constitutes prejudicial error warranting a new trial.

As we just observed, the jury heard defendants’ other expert, Dr. Neely, provide the same

opinion and it is well-established that any “[e]rror in the admission or exclusion of evidence

is harmless if the facts involved are strongly established by other competent evidence.”

Lebrecht v. Tuli, 130 Ill. App. 3d 457, 483 (1985). Moreover, Dr. Soff was permitted to offer

his ultimate opinion that nothing Zurawski or AES did contributed to or caused Matthew’s

death. Accordingly, we find that the error was ultimately harmless.

¶ 85 Finally, defendants argue that the circuit court erred in preventing Dr. Soff from

testifying that a reasonable hematologist would have deferred to the judgment of an ICU

doctor as to whether the patient was stable enough to receive plasmapheresis. Although the

circuit court found that such testimony was irrelevant, defendants argue that this evidence

was relevant and admissible to rebut the testimony of Dr. Crowther that a reasonable

hematologist would have ordered plasmapheresis to proceed notwithstanding Matthew’s

medical instability.

¶ 86 Evidence is considered relevant if it has any tendency to make the existence of any fact

that is of consequence to the determination of the action more or less probable than it would

be without the evidence. Smith v. Silver Cross Hospital, 339 Ill. App. 3d 67, 74 (2003). The

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relevance and admission of such evidence is left within the sound discretion of the circuit

court. Neade v. Portes, 193 Ill. 2d 433, 450 (2000); Smith, 339 Ill. App. 3d at 74.

¶ 87 In this case, Dr. Murathanun, the MICU resident who treated Matthew, testified that he

believed a patient needed to be medically stable in order to receive a plasmapheresis

treatment and that Matthew was medically unstable when he was transferred to Advocate’s

MICU. However, he further testified that if Zurawski had arrived before Matthew coded, he

would have contacted Dr. Hamad, Advocate’s hematologist, to inquire whether

plasmapheresis should proceed. Plaintiff’s hematologist expert, Dr. Crowther, subsequently

testified that a reasonable hematologist would have administered plasmapheresis

notwithstanding Matthew’s physical condition because without plasmapheresis, a TTP

patient necessarily dies. Thereafter, defendants sought to elicit testimony from their own

hematology expert, Dr. Soff, that a reasonable hematologist would not necessarily order

plasmapheresis to proceed; rather, he would defer to the judgment of a MICU doctor. The

circuit court, however, ultimately ruled that such testimony was not relevant after the

following exchange:

“[DEFENSE COUNSEL]: I think [Dr. Soff] should be able to say that a

reasonable hematologist might would [sic] defer to the judgment of the ICU doctor.

In other words, it’s an ICU decision, not a hematology decision.

[THE COURT]: Okay. What’s the relevance of that?

[DEFENSE COUNSEL]: The relevance is that there’s a claim that had

[Zurawski] been there, Dr. Murathanun would have called the hematologist and a

reasonable hematologist would have said, ‘Go ahead with the treatment.’ This doctor

is saying that a reasonable hematologist would defer back to the intensive care

management.

[THE COURT]: So this doctor is going to testify that Dr. Murathanun would have

said to the hematologist, ‘I’m deferring to you’ and the hematologist would have said,

‘I’m deferring to you.’

[DEFENSE COUNSEL]: That’s right. It’s an ICU call.

[THE COURT]: So how does that help the jury decide anything?

[DEFENSE COUNSEL]: It counters Crowther’s comment that a reasonable

hematologist would have said ‘Go ahead’ in the absence of Hamad actually testifying

as to what he would have done in that situation.

[THE COURT]: The objection is sustained on relevance.”

¶ 88 After reviewing the record, we cannot conclude that the circuit court abused its

discretion. Although defendants suggest otherwise, Dr. Murathanun did not testify that he

would have delayed plasmapheresis treatment until Matthew became stable; rather, he clearly

stated that if Zurawski had been present he would have contacted Dr. Hamad and would have

deferred to his judgment as to whether the plasmapheresis treatment should proceed. Given

Dr. Murathanun’s testimony, the opinion that defendants sought to elicit from Dr. Soff–that a

reasonable hematologist would defer to the opinion of the MICU doctor–cannot be deemed

relevant. Essentially, Dr. Soff’s testimony would have had Drs. Murathanun and Hamad

deferring to each other about whether to provide Matthew with plasmapheresis without any

specific end result. The circuit court recognized this circle of deference would have yielded

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no relevant evidence and we find no abuse of discretion.

¶ 89 CONCLUSION

¶ 90 Accordingly, the judgment of the circuit court is affirmed.

¶ 91 Affirmed.

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