In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3953
G ERALD M ORISCH and B ETTE M ORISCH,
Plaintiffs-Appellants,
v.
U NITED S TATES OF A MERICA, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:07-cv-145-GPM—G. Patrick Murphy, Judge.
A RGUED F EBRUARY 22, 2011—D ECIDED JULY 29, 2011
Before W ILLIAMS and T INDER, Circuit Judges, and
G OTTSCHALL, District Judge.
T INDER, Circuit Judge. Gerald Morisch brought a
medical malpractice claim against the United States
under the Federal Torts Claims Act (FTCA), 28 U.S.C.
The Honorable Joan B. Gottschall, United States District
Judge for the Northern District of Illinois, sitting by designation.
2 No. 09-3953
§§ 1346(b), 2671-80, after suffering a severe stroke in
July 2003. He alleges that the medical personnel at the
Veterans Administration (VA) hospital failed to take
appropriate measures to determine that he was on the
verge of a stroke and minimize the resulting damage.
Bette Morisch, Gerald’s wife, brought a loss of consor-
tium claim against the VA that was later dismissed. Both
plaintiffs also sued their former attorney, Robert D.
Kreisman, P.C. (Kreisman), for legal malpractice. The
district court held a four-day bench trial on the medical
malpractice claim that was combined with a jury trial
on the legal malpractice claim. The jury returned a
verdict in Kreisman’s favor and the district court later
issued written findings of fact and conclusions of law on
Gerald’s FTCA claim, resulting in a judgment in the
government’s favor. The court concluded that Gerald
failed to establish a violation of the standard of care
and failed to prove that any act or omission of the VA
proximately caused his injury.
The only substantive issue on appeal is Gerald’s
FTCA claim against the government. (The claim against
Kreisman was apparently settled around the time of the
verdict and the adverse jury verdict was not ultimately
appealed). The plaintiffs testified that a few weeks
before Gerald’s stroke, Bette called VA hospital person-
nel on two occasions to notify them that Gerald was
having stroke-related symptoms, but they did nothing.
The district court discredited Bette’s testimony in part
because phone records failed to establish that those
calls were made. Gerald argues that even assuming
Bette’s testimony was not credible, the district court
No. 09-3953 3
should nevertheless have considered the VA’s breach of
its standard of care in not properly following up with
Gerald after VA doctors performed a computerized
axial tomography (CT) scan of his neck and concluded
that he should undergo a follow-up ultrasound. Gerald
wasn’t contacted about the need for the ultrasound
until afer his stroke. If VA personnel had called him
earlier, Gerald contends, he could have informed them
about his symptoms, which should have prompted treat-
ment.
An overarching procedural problem with Gerald’s
appeal limits our ability to address his claim. The
only transcript from the bench trial that Gerald ordered
and included in the record on appeal was the testi-
mony of government expert witness Dr. Terrence Riley.
This incomplete appellate record hinders our ability
to conduct a meaningful review of the district court’s
findings. As such, we find that Gerald forfeited his
appeal. We could end our discussion there, but we
mention for completeness that based on the record avail-
able, the district court didn’t err in concluding that
Gerald failed to show that the VA’s conduct was the
proximate cause of his injury.
I. Facts
On May 19, 2003, Gerald went to the emergency room
of the VA Medical Center in Marion, Illinois. He com-
plained of pain in his right jaw and neck. A physician
prescribed pain medication and told him to see a dentist,
4 No. 09-3953
suspecting that Gerald had Eagle’s syndrome.1 Two
days later, Gerald returned to the Marion VA hospital
for a follow-up examination by Dr. James Richards, Ger-
ald’s primary care physician. Dr. Richards examined
his neck and carotid arteries and referred him to an ear,
nose and throat (ENT) specialist at the VA Medical
Center in St. Louis, Missouri. Dr. Richards counseled
Gerald about weight, cholesterol, and blood pressure,
which are risk factors for stroke. Dr. Riley, a neurologist
who testified on behalf of the government, opined that
there was no reason to believe that Gerald had carotid
artery disease or was at risk for an imminent stroke
and that referring Gerald to an ENT doctor was the
appropriate next step. (Excerpt Trial Tr. (Dr. Riley’s
testimony), 11-12).
Gerald saw Dr. Dun Ha, an ENT specialist at the
St. Louis VA hospital, on June 16, 2003. After examining
Gerald, Dr. Ha noted a small mass in his right neck. She
1
Eagle’s syndrome involves a thin bone at the base of the skull
called the styloid process. It is a condition where the styloid
process becomes elongated, often associated with weakness
in and calcification of a ligament attached to the styloid
process known as the stylohyoid ligament, causing recurring
pain in the ear, neck, and throat. See Vittorio Rinaldi et al.,
E ag le Sy n d ro m e, M E D S C A P E R E F E R E N C E ( M A R C H 2 6 ,
2010), http://emedicine.medscape.com/article/1447247-overview;
see also Victor B Feldman, Eagle’s Syndrome: A Case of Symptom-
atic Calcification of the Stylohyoid Ligaments, 47 J. C AN . C HIROPR .
A SSOC . 21. (2003),available at www.baillement.com/atm/eagle-
syndrome-feldman.pdf
No. 09-3953 5
performed a needle biopsy of the mass and ordered a
CT scan of Gerald’s neck. Dr. Riley testified that the
mass was not a warning sign that Gerald was at risk for
an imminent stroke. (Riley Tr. 13). Dr. Gracy Thomas, a
radiologist at the St. Louis VA hospital, performed the
CT scan on June 30, and interpreted the scan. He
indicated that atherosclerotic changes were noted in the
visualized portions of the upper aorta and suggested
(internally) a follow-up evaluation by ultrasound. The
impression stated: “For palpable masses, a follow-up
evaluation by ultrasound is suggested.” No one
informed Gerald of the result of the biopsy (which
was negative) or the CT scan; no ultrasound was ever
scheduled.
The plaintiffs testified that on June 16 and June 30, 2003,
Bette called the St. Louis VA hospital informing them
of transient ischemic attack (TIA, also referred to as mini-
stroke) symptoms that her husband was experiencing.
They testified that while they were driving back home
from Gerald’s examination by Dr. Ha, Gerald experienced
tingling and numbness in his left arm. At her deposi-
tion, Bette testified that she contacted the St. Louis VA
hospital via cell phone to alert VA personnel that Gerald
was undergoing TIAs. The plaintiffs also testified that
while driving back home after the CT scan by Dr. Thomas,
Gerald experienced numbness in his left arm and tempo-
rary blindness. Bette testified again at her deposition
that she contacted the St. Louis VA hospital via cell
phone to alert VA personnel to Gerald’s condition.
On July 13, 2003, after having more signs and symptoms
of an impending stroke, Gerald went to Massac Memorial
6 No. 09-3953
Hospital in Metropolis, Illinois, and from there was
transferred to Lourdes Hospital in Paducah, Kentucky.
Dr. John Grubbs accepted Gerald’s transfer to Lourdes.
Gerald complained of weakness and numbness in his
left arm and left facial drooping. He was diagnosed
with right internal carotid artery stenosis with an
acute stroke. Lourdes performed emergency carotid
endarterectomy (surgery to remove plaque buildup in the
carotid arteries, see Healthwise Staff, Carotid Endarterectomy
for TIA and Stroke, W EBMD (Jan. 7, 2011), http://www.
webmd.com/stroke/carotid-endarterectomy-for-tia-and-
stroke; however, Gerald had already suffered damage
from the stroke. On July 15, 2003, Bette received a phone
call from the St. Louis VA hospital informing her that
Gerald needed an ultrasound.
Dr. Riley testified that the results of the CT scan and
biopsy should have been relayed to Gerald and not re-
laying those results is a violation of the standard of care.
(Riley Tr. 45, 48-49). He also testified, however, that it
was not urgent to relay the results and opined that “there
[was] nothing in this CAT scan that [was] more urgent
than two or three months.” (Id. at 49). Dr. Riley further
testified that the finding of atherosclerotic changes in
Gerald’s CT scan was not a cause for alarm and
is universal to some degree in Americans over the age
of 50. (Id. at 14-15) According to Dr. Riley, a finding
of atherosclerosis does not suggest the need for an emer-
gency carotid ultrasound and in fact, without other
symptoms, does not suggest the need for one at all.
(Id.). He explained that the VA doctors were looking for
a mass, and because they did not find it on the CT scan,
they were going to follow up with an ultrasound. (Id. at
No. 09-3953 7
15). Based on the results of the CT scan, Dr. Riley opined
that Dr. Thomas would recommend a static ultrasound,
which would not have detected a blockage of Gerald’s
carotid artery. (Id. at 16). Instead, the VA would have
needed to do a doppler ultrasound to find blockage
and the results of the CT scan did not suggest a need
for this type of ultrasound. (Id. at 17).
Dr. Riley also testified that even if VA doctors had
examined Gerald, found an occlusion, and performed
the carotid endarterectomy, these actions wouldn’t
have prevented the type of stroke Gerald suffered. (Id. at
28-29). Gerald had a “lacunar infarction,” which causes
a very small, discrete, dense lesion in a small, discrete
place in the brain. (Id. at 19). As such, Dr. Riley testified
that Gerald’s stroke was not caused by atherosclerosis
and was unrelated to his carotid artery. (Id. at 39, 55).
Gerald’s stroke, according to Dr. Riley, was not
detectable before July 13. (Id. at 56). Dr. David Schreiber,
a neurologist who testified on behalf of Gerald, opined
that a carotid endarterectomy would have made the
damage resulting from the stroke minimal; Dr. Riley
disagreed with this assessment. (Id. at 23-24). Dr. Schrei-
ber, however, testified that he doesn’t criticize the VA
doctors for what they did before receiving the phone
call from Bette. (Schreiber’s Dep. at 93:9-93:24)2 . He
stated: “The phone call . . . is the thing. It says he’s having
a stroke.” (Id.).
2
See Significant Facts Pertaining to the Liability of the
Veterans Administration, Morisch v. U.S., 3:07-cv-145, ECF
No. 156, p. 10.
8 No. 09-3953
At trial, Dr. Thomas, Dr. Riley, and Dr. Schreiber
testified that nothing in the CT scan of Gerald’s neck
suggested a need for emergency treatment. “Dr. Schreiber
testified at trial . . . that, assuming that the cell phone
calls in fact were made, the failure of the VA promptly
to act on Mrs. Morisch’s information was a breach of
the standard of care. As Dr. Schreiber testified also,
however, if the calls were not in fact made, there was
no breach of the standard of care because, as noted,
nothing in the CT scan of Mr. Morisch’s neck suggested
that Mr. Morisch required emergency treatment.” Morisch
v. United States, No. 07-145-GPM, 2009 WL 3349541, at *1
(S.D. Ill. Oct. 15, 2009). Based on the testimony pre-
sented, the district court reasoned that the central
issue was whether Bette made the phone calls to VA
personnel and alerted them of Gerald’s symptoms
that indicated an impending stroke.
Cell phone records did not reflect any call by either
Gerald or Bette to a telephone number maintained by
the VA on June 16 or June 30. At trial, Bette shifted her
testimony and stated that she in fact contacted the VA
via her home telephone, possibly using a calling card.
She also testified that after June 30, but before July 13,
she continued to attempt to contact the VA regarding
her husband’s condition. The district court did not
credit Bette’s testimony for several reasons: (1) she contra-
dicted her deposition testimony and sworn answers to
interrogatories where she said she used a cell phone
and did not attempt to contact the VA regarding her
husband’s condition after June 30; (2) her trial testimony
didn’t make sense because there would be no reason
No. 09-3953 9
for her to use a telephone calling card to contact the
VA when she conceded that she was familiar with and
had used in the past the VA’s toll-free 1-800 number;
(3) it was unclear why the plaintiffs would contact the
St. Louis VA hospital if Gerald was experiencing TIAs
instead of contacting his primary care physician or
taking him to the emergency room; and (4) there were
no records indicating that she made the calls from her
home phone. The district court concluded that the
phone calls were not made, and thus, as conceded by
Dr. Schreiber, that the VA medical personnel didn’t
breach the duty of care owed to Gerald.
In a footnote, the court also found that the plaintiffs
failed to prove proximate causation. The court stated:
At trial Dr. Riley testified that an examination of
Mr. Morisch’s neck could not have disclosed an immi-
nent stroke because the situs of the stroke was inside
Mr. Morisch’s brain, not his neck, and that an ultra-
sound evaluation of the type recommended by Dr.
Thomas could not have detected a blockage in Mr.
Morisch’s carotid artery such as would have been
likely to lead to a stroke. The Court credits Dr. Riley’s
testimony.
Morisch, 2009 WL 3349541, at *2 n.2.
II. Discussion
We must first address a side issue raised by the plain-
tiffs. Although the plaintiffs settled their claim with
Kreisman, they still raised the following issue in their
10 No. 09-3953
brief: whether the district court erred in denying plain-
tiffs’ motion for sanctions against Kreisman for violation
of the Petrillo doctrine. Gerald maintains that resolution
of that issue affects his case against the government.
We briefly address this meritless argument and then
move on to a discussion of Gerald’s FTCA claim and his
failure to supply this court with an adequate record on
appeal.
A. Violation of the Petrillo doctrine
The plaintiffs appealed the district court’s order
denying their motion for sanctions against Kreisman in
the legal malpractice claim for violation of Illinois’ Petrillo
doctrine. This doctrine prohibits defendants and their
attorneys from engaging in ex parte discussions with
the injured plaintiff’s treating physicians. See Petrillo v.
Syntex Labs., Inc., 499 N.E.2d 952, 957 (Ill. App. 1986).
The court may impose sanctions against a party who
violates the Petrillo doctrine. See Nastasi v. United Mine
Workers of Am. Union Hosp., 567 N.E.2d 1358, 1365 (Ill. App.
Ct. 1991) (“Where an ex parte communication has taken
place between defense counsel and a plaintiff’s treating
physician, sanctions may be imposed upon the defendant,
including reversal of the judgment in favor of the de-
fendant and the award of a new trial.”). The plaintiffs
sought sanctions against Kreisman, alleging that its coun-
sel violated the Petrillo doctrine by communicating with
Gerald’s treating physician, Dr. Grubbs. They asked the
court to strike Kreisman’s answer and enter a judgment
in their favor, or alternatively, they argued that Kreisman
No. 09-3953 11
should have at least been barred from cross-examining
Dr. Grubbs if called as a witness.
Although the plaintiffs settled with Kreisman and
dismissed the firm from this action, Gerald nevertheless
continues to press the Petrillo violation on appeal,
asserting that the violation prevented him from calling
Dr. Grubbs as a witness in his case against the govern-
ment. According to Gerald, Dr. Grubbs testified at his
deposition that Gerald had signs and symptoms of a
stroke which could have been diagnosed by VA doctors
if he had been properly monitored. Plaintiffs’ counsel,
however, argues that he could not have possibly called
Dr. Grubbs as a witness after he had been tainted by
Kreisman’s counsel.
The district court found that “the law of Kentucky,
which recognizes no physician-patient privilege, ap-
plies to the ex parte contacts between Kreisman and
Dr. Grubbs . . . , thus defeating the basis for the motion.”
Morisch v. United States, No. 07-145-GPM, 2009 WL 6506656,
at *5 (S.D. Ill. June 16, 2009). Gerald argues that Illinois
law should apply. We can swiftly address Gerald’s
Petrillo violation argument without deciding which
state law applies. Gerald doesn’t argue that the govern-
ment violated the Petrillo doctrine, and if he believed
that Kreisman’s alleged violation of the doctrine
prejudiced his case against the government, he should
have sought separate trials or asked for the jury to
be removed while he examined Dr. Grubbs on his
FTCA claim; he didn’t. We don’t see why, and Gerald
doesn’t explain why, the government should be held
12 No. 09-3953
accountable for another party’s alleged violation of the
Petrillo doctrine. Similarly, we cannot see how the
district court’s order denying the plaintiffs’ motion for
sanctions against Kreisman prejudiced him as to his
claim against the government. This argument borders on
frivolous. We move on to his FTCA claim, which fares
no better.
B. FTCA Claim
On appeal from a decision rendered in a bench trial, we
review legal conclusions de novo and factual findings
for clear error. See Levenstein v. Salafsky, 414 F.3d 767, 773
(7th Cir. 2005) (“After a full bench trial, the district
court’s findings of fact may not be set aside unless they
are clearly erroneous.”). Mixed questions of law or fact
that do not involve constitutional rights are normally
reviewed for clear error. Id. This is a highly deferential
standard. Id. “[I]f a factual finding is plausible in light of
the record viewed in its entirety, we may not reverse
that finding even if we would have decided the matter
differently had we been the trier of fact.” Johnson v.
Doughty, 433 F.3d 1001, 1012 (7th Cir. 2006) (quotations
omitted). If we harbor reasonable doubts, they “should be
resolved in favor of the district court’s ruling in light of
its greater immersion in the case.” Id. (quotations omitted).
“A finding of fact is clearly erroneous only when the
reviewing court is left with the definite and firm convic-
tion that a mistake has been committed.” Carnes Co. v.
Stone Creek Mech., Inc., 412 F.3d 845, 847 (7th Cir. 2005).
No. 09-3953 13
“The credibility determinations that a judge renders
as the finder of fact command a high degree of deference.”
Gicla v. United States, 572 F.3d 407, 414 (7th Cir. 2009). We
don’t “disturb a court’s evaluation of witness credibility
unless the court has credited patently improbable testi-
mony or its credibility assessments conflict with its
other factual findings.” Id. This is because the “trial
judge is in the best position to judge the credibility of
witnesses who offer conflicting testimony.” Spurgin-
Dienst v. United States, 359 F.3d 451, 453 (7th Cir. 2004)
(quotations omitted). In a case of dueling experts, such
as this one, “it is left to the trier of fact, not the reviewing
court, to decide how to weigh the competing expert
testimony.” Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir.
2008); Gicla, 572 F.3d at 414 (stating that the factfinder
must determine what weight and credibility to give the
testimony of each expert and physician).
1. Incomplete Record on Appeal
Gerald only submitted the trial transcript of Dr. Riley
as part of the record on appeal; he did not request that
the transcript of the entire bench trial be included in the
record. Rule 10(b)(2) of the Federal Rules of Appellate
Procedure provides: “If the appellant intends to urge
on appeal that a finding or conclusion is unsupported by
the evidence or is contrary to the evidence, the appellant
must include in the record a transcript of all evidence
relevant to that finding or conclusion.” Fed. R. App. P.
10(b)(2). He also did not follow the requirements of
Appellate Rule 10(b)(3), which requires an appellant who
14 No. 09-3953
has not filed a complete transcript of the trial to file a
statement of the issues the appellant intends to present
on appeal and to serve it on the appellee. Fed. R. App.
P. 10(b)(3).
A violation of Rule 10(b)(2) is grounds for forfeiture
and dismissal. Gramercy Mills, Inc. v. Wolens, 63 F.3d 569,
573-74 (7th Cir. 1995). We will dismiss an appeal if the
absence of the transcript precludes meaningful review.
Piggie v. Cotton, 342 F.3d 660, 663 (7th Cir. 2003). The
appellant has the burden of ordering the necessary tran-
scripts; when challenging the sufficiency of the evidence,
this includes the trial transcript. Birchler v. Gehl Co., 88
F.3d 518, 519 (7th Cir. 1996) (part of transcript not suf-
ficient under the rule); see also Gramercy, 63 F.3d at 573-74
(transcript must be included when party challenges
sufficiency of evidence). In Hotaling v. Chubb Sovereign
Life Insurance Co., 241 F.3d 572, 581 (7th Cir. 2001), the
plaintiff appealed the district court’s findings after a
bench trial, arguing that there was insufficient evidence
to find for the defendants. We were unable to address
his insufficiency claim, however, because he failed to
file a copy of the transcript of the bench trial. Id. Accord-
ingly, we held that the plaintiff forfeited the argument
on appeal. Id.; see also Lampley v. McBride, 207 F. App’x 649
(7th Cir. 2006) (unpublished) (finding that we couldn’t
conduct meaningful appellate review of trial record
and district court’s findings from the bench trial where
appellant didn’t include trial transcript in the record).
Rule 10(b)(2) requires that the record include a tran-
script of all evidence relevant to the court’s findings
No. 09-3953 15
or conclusions. In this case, that would include all
portions of the trial relating to Gerald’s FTCA claim. The
only portion of the bench trial transcript provided by
Gerald is the transcript of Dr. Riley’s testimony. Gerald
argues that Dr. Riley’s testimony precludes a finding in
the government’s favor, but in making this argument,
he misapplies the applicable standard of review. He
attempts to show that there was some evidence presented
at trial that supports his theory. This may be sufficient
to pass muster under the summary judgment standard,
where we view the evidence in the light most favorable
to the nonmovant, but it cannot succeed upon review of
a bench trial where we review factual findings for clear
error. What is perhaps most troubling is Gerald’s almost
complete reliance on allegations in his complaint to
support his arguments on appeal. Although we acknowl-
edge that most of his stated factual contentions are not
in dispute, it is inappropriate to rest on conclusory al-
legations of the complaint at this stage of the game.
The district court was permitted to consider all the
evidence at trial and make factual findings based on that
evidence. We review those findings under a deferential
standard, but we cannot engage in a meaningful review
of those findings when we only have the trial testimony
of one of several witnesses who testified. The govern-
ment, who was satisfied with the trial court’s findings,
had no obligation or incentive to order the transcripts.
Gerald must convince us that the trial court erred, and
he cannot meet this burden without providing us with
the record of the bench trial. (In fact, in his reply brief,
which was stricken for being late, Gerald urges us to
16 No. 09-3953
consider cited portions of Dr. Schreiber’s testimony, even
though it’s not in the record.) Without the transcripts,
“we are unable to evaluate the evidence submitted in
this case,” Hotaling, 241 F.3d at 581, and cannot conduct
a meaningful review of Gerald’s claim, see Birchler,
88 F.3d at 519-20.
As an alternative to forfeiture, we have the authority
under Rule 10(e) to order the plaintiff to supplement
the record to include the entire trial transcript. See Fed. R.
App. P. 10(e). We have declined to allow supplementa-
tion, however, where, as in this case, the plaintiff had
ample opportunity to correct the problem, but failed to
do so. See Learning Curve Toys, Inc. v. PlayWood Toys, Inc.,
342 F.3d 714, 731 n. 10 (7th Cir. 2003); see also RK Co. v. See,
622 F.3d 846, 853 (7th Cir. 2010) (dismissing appeal
where appellant was given ample time to correct the
omission of the relevant transcript and failed to do so).
In its response brief and at oral argument, the govern-
ment pointed out that Gerald violated Rule 10(b)(2)
by submitting an incomplete record on appeal. Despite
notice of the government’s objection to the incomplete
record, Gerald made no attempt to supplement the
record. His claim is therefore forfeited.
2. Standard of Care and Proximate Cause
Although our discussion could end here, we briefly
address the merits of Gerald’s claim based on the
record and undisputed facts before us. The FTCA imposes
liability “under circumstances where the United States,
if a private person, would be liable to the claimant in
No. 09-3953 17
accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1); see also
Midwest Knitting Mills, Inc. v. United States, 950 F.2d
1295, 1297 (7th Cir. 1991) (“[T]he FTCA incorporates the
substantive law of the state where the tortious act or
omission occurred . . . .”). The acts or omissions that are
central to the medical malpractice claim occurred in
Missouri, but since neither party pointed to a conflict
between Missouri and Illinois law, the district court
did not need to make a choice of law decision and
assumed Illinois law applied. Morisch, 2009 WL 3349541
at *1. Neither party takes issue with the district court’s
determination to apply Illinois law, so that is the law
we apply here. See Gould v. Artisoft, Inc., 1 F.3d 544, 549
n. 7 (7th Cir. 1993) (“[T]he parties have not identified
a conflict between the two bodies of state law that
might apply to their dispute, [so] we will apply the
law of the forum state—here, Illinois.”); see also
Kochert v. Adagen Medical Int’l, Inc., 491 F.3d 674, 677
(7th Cir. 2007).
To succeed on his medical malpractice claim, Gerald had
to prove: “(1) the proper standard of care against which
the defendant’s conduct is measured; (2) an unskilled
or negligent failure to comply with the applicable stan-
dard; and (3) a resulting injury proximately caused by
the defendants want of skill or care.” Petre v. Cardio-
vascular Consultants, 871 N.E.2d 780, 790 (Ill. App. Ct.
2007). “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.”
Johnson v. Loyola Univ. Med. Ctr., 893 N.E.2d 267, 272
18 No. 09-3953
(Ill. App. Ct. 2008) (quotation omitted). To establish
proximate cause, the plaintiff must show “cause in fact
and legal cause.” Bergman v. Kelsey, 873 N.E.2d 486, 500
(Ill. App. Ct. 2007) (quotation omitted). “Cause in fact
exists when there is a reasonable certainty that a defen-
dant’s acts caused the injury or damage.” Coole v. Cent.
Area Recycling, 893 N.E.2d 303, 310 (Ill. App. Ct. 2008)
(quotation omitted). “[T]o prove legal cause, a plaintiff
must also show that an injury was foreseeable as the
type of harm that a reasonable person would expect to
see as a likely result of his or her conduct.” LaSalle Bank,
N.A. v. C/HCA Devel. Corp., 893 N.E.2d 949, 970 (Ill. App.
Ct. 2008) (quotations omitted).
We initially note that the district court did not err
in finding that Bette was an incredible witness. Her
testimony was unsupported by phone records, incon-
sistent with prior testimony, and questionable. The
judge acted well within his bounds in disregarding the
testimony. See Gicla, 572 F.3d at 414. Gerald, however,
argues that even disregarding Bette’s testimony, had
VA personnel contacted him about the results of his
biopsy and CT scan, he would have informed them
about his TIA symptoms, which should have prompted
a complete stroke work-up. If this is Gerald’s argument,
it’s unclear why he didn’t inform VA personnel of these
symptoms at his June 30 ultrasound (he testified
that he first had the symptoms on June 16). In any
event, Dr. Riley testified that the standard of care
didn’t require the VA doctors to follow up with Gerald
immediately. Neither the biopsy nor the ultrasound
should have alerted the VA doctors that Gerald was at
imminent risk of an impending stroke or that emergency
No. 09-3953 19
treatment was required. The plaintiffs’ expert conceded
this fact. That is key because Gerald’s stroke occurred
less than two weeks after his CT scan. The district
court properly credited Dr. Riley’s testimony that the
VA doctors had no reason to know that Gerald needed
urgent care before his stroke on July 13.
Gerald’s stroke was not a foreseeable result of the VA’s
failure to follow up with him immediately about the
results of his biopsy or CT scan. Nothing would have
led the doctors to believe that Gerald was at imminent
risk of a stroke or that by calling him, they would
have discovered his TIA symptoms and prevented his
injury. Even if they had called and Gerald informed
them of his symptoms, according to Dr. Riley, no treat-
ment of the carotid, such as carotid endarterectomy,
could have prevented or lessened the effects of Gerald’s
stroke, which was caused by a small, discrete lesion in
his brain. See, e.g., Aguilera v. Mt. Sinai Hosp. Med. Ctr., 691
N.E.2d 1, 6 (Ill. App. 1997) (upholding entry of judgment
notwithstanding the verdict where there was no evi-
dence to support the opinion of plaintiff’s experts that
the negligent delay in administering a CT scan lessened
the effectiveness of treatment). The district court acted
within its discretion in crediting Dr. Riley’s expert testi-
mony and finding no proximate cause.
III. Conclusion
For the foregoing reasons, the appeal is D ISMISSED.
7-29-11