First Division
June 14, 2010
No. 1-07-1128
JOYCE ROBINSON, as Special ) Appeal from the
Administrator of the Estate of ) Circuit Court of
Wanda Boone, Deceased, ) Cook County
)
Plaintiff-Appellant, )
)
)
v. ) No. 04 L 13958
)
)
JAMES F. BOFFA, ) Honorable
) Donald J. O'Brien
Defendant-Appellee. ) Judge Presiding
PRESIDING JUSTICE HALL delivered the opinion of the court:
This case arises out of a medical malpractice action brought
by plaintiff, Joyce Robinson, as special administrator of the
estate of her deceased mother, Ms. Wanda Boone, against defendant
surgeon, Dr. James F. Boffa. Ms. Boone had just turned 77 at the
time of her death.
Ms. Boone was admitted to the hospital after complaining of
weakness and anemia. Because she suffered from iron deficiency
anemia, an exploratory colonoscopy was recommended. On February
15, 2000, Dr. Luis Nasiff, a board-certified gastroenterologist,
performed the colonoscopy on Ms. Boone. The results showed a
cancerous mass in her colon. Ms. Boone saw Dr. Boffa to have the
cancerous tumor removed.
On February 18, 2000, Dr. Boffa removed a tissue mass from
Ms. Boone's colon, but not the cancerous tumor. Five days later,
Ms. Boone underwent a second surgery to remove the cancerous
No. 1-07-1128
tumor. Ms. Boone died on March 25, 2000.
Ms. Boone's estate filed a negligence action against Dr.
Boffa claiming that he violated the applicable standard of care
by failing to remove the cancerous tumor during the first surgery
and by performing the second surgery too soon after the first
surgery. Plaintiff contended the stress of the second surgery
caused Ms. Boone's death.
Dr. Boffa argued that his failure to remove the cancerous
tumor during the first surgery was not negligent because he was
misled by the colonoscopy report as to the location of the tumor.
Plaintiff appeals from the verdict and judgment entered
following a jury trial and from the trial court's subsequent
order denying her posttrial motion.
Plaintiff's overarching contention on appeal is that the
trial court erred in instructing the jury with the long forms of
Illinois Pattern Jury Instructions Civil No. 12.04 and No. 12.05
(3d ed. 1989) (hereinafter IPI Civil 3d), on proximate cause.
The long form of IPI Civil 3d No. 12.04 tendered by the trial
court read:
"More than one person may be to blame for causing an
injury. If you decide that the defendant was negligent and
that his negligence was a proximate cause of injury to the
plaintiff, it is not a defense that some third person who is
not a party to the suit may also have been to blame.
However, if you decide that the sole proximate cause of
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injury to the plaintiff was the conduct of some person other
than the defendant, then your verdict should be for the
defendant."
The long form of IPI Civil 3d No. 12.05 tendered by the
trial court stated:
"If you decide that the defendant was negligent and
that his negligence was a proximate cause of injury to the
plaintiff, it is not a defense that something else may also
have been a cause of the injury.
However, if you decide that the sole proximate cause of
injury to the plaintiff was something other than the conduct
of the defendant, then your verdict should be for the
defendant."
Plaintiff contends on appeal, as she did below, that the
trial court erred in tendering the second paragraph of each of
the instructions. The notes for each instruction indicate that
the second paragraph should be given only where there is evidence
tending to show that the sole proximate cause of the occurrence
was a third person (IPI Civil 3d No. 12.04), or something other
than the conduct of the defendant (IPI Civil 3d No. 12.05). IPI
Civil 3d Nos. 12.04, 12.05, Notes on Use.
Prior to trial, defendant sought to admit evidence that the
sole proximate cause of the decedent's death was someone other
than Dr. Boffa or something other than the second colon surgery
decedent underwent. Specifically, defendant sought to admit
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evidence that the proximate cause of the decedent's death was
multisystem failure secondary to congestive heart failure,
diabetes, and renal failure; and separately, Dr. Nasiff's
negligence in failing to precisely pinpoint the location of the
cancerous tumor in his colonoscopy report. Defense counsel
claimed the decedent was required to undergo a second colon
surgery because the colonoscopy report misled Dr. Boffa as to the
precise location of the tumor during the first surgery.
Plaintiff moved in limine to bar such evidence. The trial
court denied the motion. The jury ultimately returned a verdict
for defendant. The trial court denied plaintiff's posttrial
motion and this appeal followed. For the reasons that follow, we
affirm.
ANALYSIS
In a medical malpractice action, the plaintiff must prove
that the defendant's breach of the applicable standard of care
proximately caused the resulting injury. Purtill v. Hess, 111
Ill. 2d 229, 241-42, 489 N.E.2d 867 (1986). Proximate cause is
ordinarily an issue of fact for the jury to decide unless the
facts are undisputed and reasonable minds could not differ as to
the inferences to be drawn from those facts. Kimber v. City of
Warrenville, 248 Ill. App. 3d 361, 367, 617 N.E.2d 1263 (1993).
Plaintiff contends the trial court erred in admitting
evidence and argument that Dr. Nasiff's failure to precisely
pinpoint the location of the tumor in his colonoscopy report was
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a proximate cause of the decedent's death. Plaintiff maintains
there was no evidentiary basis for such an argument or for the
trial court to instruct the jury with the second paragraph of IPI
Civil 3d No. 12.04, which followed from that argument.
The admission of evidence is within the sound discretion of
the trial court, whose ruling will not be disturbed absent an
abuse of discretion. Gill v. Foster, 157 Ill. 2d 304, 312-13, 626
N.E.2d 190 (1993). In regard to jury instruction, a litigant has
the right to have the jury clearly and fairly instructed upon
each theory that was supported by the evidence; however, it is
error to give an instruction not based on the evidence. Leonardi
v. Loyola University of Chicago, 168 Ill. 2d 83, 100, 658 N.E.2d
450 (1995).
Plaintiff's theory of the case was that her mother died from
the stress of a second surgery on her colon. Plaintiff claimed
her mother would not have required the second surgery if Dr.
Boffa had not been negligent in failing to locate and remove a
nickel-size cancerous tumor from her mother's colon during the
first surgery.
Plaintiff also maintained the doctor was negligent in
performing the second surgery only five days after the first
surgery. Plaintiff asserted that the second surgery was
performed too close in time to the first surgery. Plaintiff
argued the decedent had just begun to recover from the first
surgery when she underwent the second surgery.
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Plaintiff acknowledges that Dr. Nasiff reported the tumor's
location to be approximately 20 centimeters (about 8 inches) away
from its actual location in the decedent's colon, but contends
that this reported location was only an estimate because of the
physical structure of the colon, which is similar to an accordion
with various twists and bends. Plaintiff maintains that even if
Dr. Nasiff's colonoscopy report initially misled Dr. Boffa as to
the precise location of the tumor, this should not have made any
substantive difference in the surgery.
Plaintiff claims that once Dr. Boffa grossly examined
(examined with the naked eye) the area of the colon described in
the colonoscopy report and saw that the lining of the colon
(mucosa) was normal, he then knew or was obligated by the
applicable standard of care to know that the tissue mass he
removed and suspected was cancerous was in fact benign.
Therefore, he was required to continue the surgery until he
located the cancerous tumor.
Plaintiff asserts the second surgery would have been
unnecessary if during the first surgery Dr. Boffa had taken a
frozen section of the tissue mass he believed was cancerous and
had it analyzed to determine if it was in fact cancerous. In the
alternative, plaintiff maintains the doctor could have performed
an intraoperative endoscopy to locate and identify the lesion.
Plaintiff argues that if Dr. Boffa had followed either
procedure during the first surgery, he would have discovered that
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the tissue mass he removed, and initially believed was malignant,
was in fact nonmalignant, thereby necessitating that he continue
the surgery until he located the cancerous tumor. Plaintiff
maintains that Dr. Boffa's failure in all of these regards
amounted to a deviation from the applicable standard of care.
Plaintiff contends that Dr. Nasiff's alleged negligence in
regard to the colonoscopy report was not a legal cause of the
decedent's death. We agree.
Dr. Allesandro Fichera, a board-certified colorectal
surgeon, and Dr. Nasiff both testified that the standard of care
required Dr. Boffa to understand and appreciate that Dr. Nasiff's
measurement of the location of the tumor was an estimate. In the
instant case, even if we were to conclude, which we do not, that
Dr. Nasiff's failure to more accurately pinpoint the location of
the tumor in his colonoscopy report was an actual cause of the
decedent's death, this would not establish that his conduct
proximately caused her death. It would still have to be shown
that Dr. Nasiff's conduct was a legal cause of the decedent's
death.
"A defendant's acts are a legal cause only if they are 'so
closely tied to the plaintiff's injury that he should be held
legally responsible for it. ' " Simmons v. Garces, 198 Ill. 2d
541, 558, 763 N.E.2d 720 (2002), quoting McCraw v. Cegielski, 287
Ill. App. 3d 871, 873, 680 N.E.2d 394 (1996). A determination as
to legal cause is " ' a policy decision that limits how far a
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defendant's legal responsibility should be extended for conduct
that, in fact, caused harm. ' " Simmons, 198 Ill. 2d at 558,
quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455,
605 N.E.2d 493 (1992).
Legal cause is essentially a question of foreseeability.
Lee, 152 Ill. 2d at 455. To establish legal cause, the injury
must be foreseeable as the type of harm that a reasonable person
would expect to see as a likely result of his or her conduct.
Lee, 152 Ill. 2d at 455.
In this case, even if Dr. Nasiff could have reasonably
foreseen that a surgeon would rely on a colonoscopy report to
locate a cancerous lesion, we do not believe that the doctor
could have reasonably foreseen that a surgeon would rely on the
colonoscopy report to conclusively determine if a suspected
tissue mass was in fact cancerous. Dr. Boffa's subsequent
failure to conclusively determine if the suspected tissue mass
was in fact cancerous was an unforeseen intervening omission that
broke the chain of causation between Dr. Nasiff's alleged
negligence and the decedent's death.
It is well settled that where the acts of a third person
intervene between the defendant's conduct and the plaintiff's
injury, liability turns upon whether the intervening act or
omission was a foreseeable consequence of the situation created
by the defendant's negligence. See, e.g., Bentley v. Saunemin
Township, 83 Ill. 2d 10, 15, 413 N.E.2d 1242 (1980) ("[t]he
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negligence of a defendant will not constitute a proximate cause
of a plaintiff's injuries if some intervening act supersedes the
defendant's negligence, but if the defendant could reasonably
foresee the intervening act, that act will not relieve the
defendant of liability").
Even if Dr. Nasiff's colonoscopy report initially misled Dr.
Boffa as to the precise location of the tumor, Dr. Boffa had an
independent duty and responsibility to act on his own knowledge
to conclusively determine if the suspected tissue mass was
cancerous. We do not believe Dr. Nasiff could have reasonably
foreseen that a surgeon would rely on a colonoscopy report to
conclusively determine whether a suspected tissue mass was in
fact cancerous. As a result, Dr. Nasiff's alleged negligence
could not have been a proximate cause of the decedent's death.
See, e.g., Thompson v. County of Cook, 154 Ill. 2d 374, 383, 609
N.E.2d 290 (1993) ("proximate cause is *** absent where the
independent acts of a third person break the causal connection
between the alleged original wrong and the injury").
Having reached this conclusion, we find that the trial court
erred in tendering the second paragraph of IPI Civil 3d No.
12.04, because there was no evidentiary foundation to support the
gastroenterologist, Dr. Nasiff, as the sole proximate cause of
the decedent's death. See, e.g., Freeman v. Petroff, 275 Ill.
App. 3d 904, 915-16, 656 N.E.2d 453 (1995) (trial court erred in
giving jury instruction containing second paragraph of IPI Civil
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3d No. 12.04, where there was insufficient evidentiary basis to
support giving instruction), overruled on other grounds by
McDonnell v. McPartlin, 192 Ill. 2d 505, 516, 736 N.E.2d 1074
(2000). While we recognize this error, plaintiff must still show
she was prejudiced by the instructional error.
Jury instructions should be viewed as a whole, and
reversible error occurs only when serious prejudice to the
complaining party's right to fair trial has been proven.
Burlington Northern & Santa Fe Ry. Co. v. ABC-NACO, 389 Ill. App.
3d 691, 716, 906 N.E.2d 83 (2009). "A reviewing court ordinarily
will not reverse a trial court for giving faulty instructions
unless they clearly misled the jury and resulted in prejudice to
the appellant." Schultz v. Northeast Illinois Regional Commuter
R.R. Corp., 201 Ill. 2d 260, 274, 775 N.E.2d 964 (2002).
Plaintiff has not established that she was prejudiced by the
trial court's error in tendering the second paragraph of IPI
Civil 3d No. 12.04, because there existed other defense theories
upon which the jury could have determined that Dr. Boffa was not
liable for the decedent's death. Under the two-issue rule, a
general jury verdict will not be disturbed on review if the case
involved two or more causes of action or defenses and there was
sufficient evidence to support at least one of the issues or
defenses presented to the jury free from error. See Cole v. Raut,
378 S.C. 398, 406-07, 663 S.E.2d 30, 35 (2008); see also Grenitz
v. Tomlian, 858 So. 2d 999, 1001 (Fla. 2003), quoting Tomlian v.
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Grenitz, 782 So. 2d 905, 906 (Fla. App. 2001) ("'where two issues
are submitted to a jury, only one of which is infected with
error, the appellate court will assume the jury found for the
prevailing party on the issue which was error-free, unless it can
be determined from the form of verdict that the error was
prejudicial'").
"When a general verdict for the plaintiff is on review, the
rule is applied by focusing on the causes of action ***." Barth
v. Khubani, 748 So. 2d 260, 261 (Fla. 1999); see also Moore v.
Jewel Tea Co., 46 Ill. 2d 288, 294, 263 N.E.2d 103 (1970) ("where
several causes of action are charged and a general verdict
results, the verdict will be sustained if there are one or more
good causes of action or counts to support it").
"On the other hand, when the jury returns a general verdict
for the defendant, the 'two issue rule' is applied by focusing on
the defenses ***." Barth, 748 So. 2d at 261-62. Thus, "where two
or more defense theories are presented to the jury and it returns
a verdict for the defense, an appellate claim of error as to one
defense theory will not result in reversal since the verdict may
stand based on another theory." Barth, 748 So. 2d at 262.
In the instant case, defense counsel asserted two proximate
cause defenses. First, the decedent's preexisting health
problems, which included congestive heart failure, diabetes, and
renal failure. Dr. Boffa opined that the decedent died from
multisystem organ failure beginning with the decedent's impaired
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kidney function, which affected her heart and lungs.
And second, the failure of gastroenterologist Dr. Nasiff to
precisely pinpoint the location of the tumor in his colonoscopy
report. Defense counsel contended the decedent was required to
undergo a second colon surgery because the colonoscopy report
misled Dr. Boffa as to the precise location of the tumor during
the first surgery.
Because the jury rendered a general verdict for defendant
and could have relied upon the first proximate cause defense to
find no liability and because there was ample evidence supporting
this defense, we cannot say that the plaintiff was prejudiced by
the trial court's error in tendering the second paragraph of IPI
Civil 3d No. 12.04.
Plaintiff finally contends the trial court erred in
admitting evidence and argument that the decedent's preexisting
medical conditions were a proximate cause of her death.
Plaintiff maintains there was no evidentiary basis for such an
argument or for the trial court to instruct the jury with the
second paragraph of IPI Civil 3d No. 12.05 which followed from
that argument.
Plaintiff argues that the only witness to connect the
decedent's preexisting medical conditions to her death was Dr.
Boffa, who testified that the decedent died from multisystem
organ failure beginning with the decedent's impaired kidney
function. Plaintiff claims that other than Dr. Boffa's "limited
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causation evidence," nothing else connected the decedent's
preexisting medical conditions to her death and therefore any
evidence and argument about the preexisting medical conditions
should have been barred.
Plaintiff argues "it is not enough to simply throw out a
medical condition and allow the jury to determine whether there
is a causal relationship between that condition and the claimed
injury." Again, we must disagree with plaintiff.
The element of proximate cause is an element of the
plaintiff's case. Yoder v. Ferguson, 381 Ill. App. 3d 353, 384,
885 N.E.2d 1060 (2008). In a medical malpractice action, the
plaintiff bears the burden of proving that the defendant's breach
of the applicable standard of care proximately caused the
injuries at issue. Reardon v. Bonutti Orthopaedic Services, Ltd.,
316 Ill. App. 3d 699, 710, 737 N.E.2d 309 (2000).
The defendant is not required to plead lack of proximate
cause as an affirmative defense. Leonardi, 168 Ill. 2d at 93-94.
However, "if there is evidence that negates causation, a
defendant should show it." Leonardi, 168 Ill. 2d at 94. A
defendant has the right to rebut evidence tending to show that
his acts are negligent and a proximate cause of the plaintiff's
injuries and he has the related right to establish that some
other causative factor was the sole proximate cause of the
injuries and, assuming some competent evidence is presented, to
have the jury instructed on this theory. McDonnell v. McPartlin,
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192 Ill. 2d 505, 521, 736 N.E.2d 1074 (2000).
In the instant case, defense counsel presented competent
evidence through Dr. Boffa that the sole proximate cause of the
decedent's death was some other causative factor, namely, the
decedent's preexisting medical condition. Plaintiff counters
that even if Dr. Boffa's testimony connected the decedent's
preexisting medical condition to her death, this connection was
severed by the doctor's subsequent "judicial admission" that he
could not rule out the second colon surgery as the cause of the
decedent's death. We must reject plaintiff's contention.
We agree with the trial court that Dr. Boffa's admission
concerning the second surgery went to the weight of his prior
testimony concerning the decedent's preexisting medical condition
and not to its admissibility. See, e.g., Moller v. Lipov, 368
Ill. App. 3d 333, 344, 856 N.E.2d 664 (2006). In view of the
evidence adduced at trial, we find that the trial court did not
err in tendering the second paragraph of IPI Civil 3d No. 12.05.
Accordingly, for the reasons set forth above, the judgment
of the circuit court of Cook County is affirmed.
Affirmed.
PATTI, J., concurs.
JUSTICE GARCIA, specially concurring:
I have a fundamental disagreement with the majority's
application of the two-issue rule. "Under the two-issue rule, a
general verdict will not be disturbed if the case involved two or
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more causes of action or defenses and there was sufficient
evidence to support at least on of the issues or defenses
presented to the jury free from error. [Citation.]" Slip op. at
10. The majority precedes the foregoing statement with a claim
that the "[p]laintiff has not established that she was prejudiced
by the trial court's error in tendering the second paragraph of
IPI Civil 3d No. 12.04, because there existed other defense
theories upon which the jury could have determined that Dr. Boffa
was not liable for the decedent's death." Slip op. at 10. It is
an oversimplification to link the two-issue rule with the
plaintiff's inability to show prejudice.
The two-issue rule precludes review of a general verdict not
because the plaintiff is unable to show prejudice based on an
improper instruction. Rather, the jury's general verdict is not
subject to review because "the basis for the verdict" is
unknowable in the absence of a special interrogatory. Strino v.
Premier Healthcare Associates, P.C., 365 Ill. App. 3d 895, 904,
850 N.E.2d 221 (2006). Stated differently, the two-issue rule
forecloses review of a general verdict in favor of a defendant
because "[t]he general verdict *** creates a presumption that the
jury found in favor of [the defendant] on every defense raised."
Lazenby v. Mark's Construction, Inc., 236 Ill. 2d 83, 102, 923
N.E.2d 735 (2010).
It is the absence of a special interrogatory answered by the
jury to explain its general verdict for the defendant that
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forecloses any claim of prejudice arising from an allegedly
erroneous instruction. Strino, 365 Ill. App. 3d at 904-05 (in
the absence of a special interrogatory, a court of review cannot
"determine whether the jury found in the defendant's favor on the
negligence issue[, rather than on contributory negligence]").
In the instant case, if the jury rendered its no liability
verdict because the plaintiff failed to prove negligence on the
part of Dr. Boffa, then the long-form proximate cause instruction
the plaintiff complains of, played no role in the jury's decision
in favor of the defendant doctor. Tabe v. Ausman, 388 Ill. App.
3d 398, 403, 902 N.E.2d 1153 (2009); see also Orzel v. Szewczyk,
391 Ill. App. 3d 283, 290, 908 N.E.2d 569 (2009).
In Tabe, the defendant doctors argued that based on the two-
issue rule, "if the jury determined that the defendant doctors
did not deviate from the standard of care, then any error in
giving the long-form proximate cause instruction 'would have had
no effect on the verdict.' " Tabe, 388 Ill. App. 3d at 402,
quoting Strino, 365 Ill. App. 3d at 904-05. We agreed.
In Orzel, the plaintiff claimed the jury was wrongly
instructed on contributory negligence. However, we determined
that the absence of a special interrogatory answered by the jury
explaining the basis for its general verdict precluded our review
of the issue:
"When the jury returned a verdict in favor of defendants in
this case, it could have decided defendants were not liable
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because plaintiff failed to meet her burden of proof
regarding the underlying slip and fall negligence case. Or,
the jury could have found plaintiff was more than 50% at
fault for her injuries. We simply do not know what the jury
decided here, other than that defendants were not liable.
The jury may have reached a verdict in defendants' favor
without ever considering the issue of contributory
negligence. Based on the general verdict returned, we
cannot say the contributory negligence instruction made a
difference in this case. [Citation.]" Orzel, 391 Ill. App.
3d at 290.
When the two-issue rule applies, review of a jury's general
verdict is foreclosed in the absence of a special interrogatory
explaining the basis for the verdict, much like review is
foreclosed when the appealing party fails to submit a record that
demonstrates the circuit court erred in its reasoning in ruling
in favor of the opposing party. See Foutch v. O'Bryant, 99 Ill.
2d 389, 391, 459 N.E.2d 958 (1984) (in the absence of a
transcript of the circuit court proceedings, "the appellate
court had to presume that the trial court acted in conformity
with the law and ruled properly after considering the motion").
When we affirm in the absence of a jury's answer to a
special interrogatory explaining its general verdict or in the
absence of a transcript explaining the circuit court's ruling, we
do so on the basis that the applicable presumption precludes
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review, not on the basis that the appealing party failed to
demonstrate prejudice, though the latter is necessarily true as
well.
Even if we were to set aside the presumption raised by the
two-issue rule and directly consider the plaintiff's claims of
prejudice, the plaintiff is unable to demonstrate substantial
prejudice to warrant a new trial based on any error in
instructing the jury with the second paragraph of IPI Civil 3d
Nos. 12.04 and 12.05. See Tabe, 388 Ill. App. 3d at 405-06
("there is no precedent that holds the giving of the sole
proximate cause instruction results in prejudice to a
plaintiff").
I specially concur in the result.
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