Smith v. Menet

JUSTICE INGLIS

delivered the opinion of the court:

This is a medical malpractice action brought by plaintiff, William Smith, against defendants, Paul Menet and Glen Ellyn Clinic. A jury returned a verdict in favor of plaintiff and assessed damages at $630,000, which amount was reduced by 33% for comparative negligence to $422,100. Defendants timely appealed. We reverse.

It appears from the record that plaintiff died on March 25, 1988. Plaintiff’s spouse, Viola Smith, was thereafter appointed by this court as special administrator and substituted for plaintiff. (Order of April 5, 1988.)

Plaintiff, William Smith, began treatment with defendant, Dr. Paul Menet, on March 8, 1984. Plaintiff had been diagnosed for diabetes in 1973. In March 1984, he went to the Glen Ellyn Clinic feeling he needed a physical exam and help with his diabetes, which had gotten out of control. The primary issue in this case is whether Dr. Menet was negligent in failing to diagnose and inform plaintiff that he had cancer. Further facts will be developed where relevant to our disposition in the case.

We initially note that plaintiff has asked that the statement of facts in defendants’ brief be stricken as argumentative. We decline to do so. In the instant case, the statement of facts is not so flagrantly argumentative as to hinder or preclude review. Consequently, we do not strike the statement of facts in defendants’ brief. See James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452.

Defendants contend that the evidence failed to sustain plaintiff’s burden of proof. Defendants argue that in order to succeed on his complaint, plaintiff had to prove that Dr. Menet’s treatment of plaintiff fell below acceptable medical standards. Defendants argue that plaintiff’s expert witness only testified that Dr. Menet’s treatment of plaintiff fell below good medical care. Defendants further argue that good medical care is a higher standard than acceptable medical care.

In response, plaintiff claims that this issue has been waived due to the fact that defendants did not properly object to Dr. Golomb’s testimony. Plaintiff further contends that he met his burden of proof. Although plaintiff contends that defendants’ argument has been waived for failure to object, the record indicates that defendants did object to the question based on the foundation, the form, and the wording as being inconsistent with the instructions on standard of care. We find these objections were sufficiently specific to preserve defendants’ argument.

A plaintiff must establish the standard of care against which the defendant’s conduct is measured and further prove that, judged in the light of this standard, the defendant was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff. Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423; see also Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 1126-27.

The jury was properly instructed with the Illinois Pattern Jury Instruction which provides that in treating a patient, a doctor must possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified doctors in the locality in which he practices or in similar localities in similar cases and circumstances, and that failure to do so is a form of negligence that is called malpractice. Illinois Pattern Jury Instructions, Civil, No. 105.01 (2d ed. 1971); see also Northern Trust Co., 81 Ill. App. 3d at 1126-27.

In the instant case, the following colloquy occurred:

“Q. Based upon your review of these materials, Doctor, and mindful of the factual dispute that’s in this case and assuming for the purpose of this question that Dr. Menet did not recommend further diagnostic studies to Bill Smith following the two X-rays that were taken at Glen Ellyn Clinic and told him that the abnormality shown on those films was old scar tissue, do you have an opinion, based upon a reasonable degree of medical certainty and as a Board-certified and practicing specialist in the field of internal medicine, as to whether or not Dr. Menet’s conduct fell within the standard of good medical care in attending Mr. Smith?
* * *
BY THE WITNESS:
A. Yes, sir, I do have an opinion.
BY MR. SCHROEDER:
Q. And what is that opinion?
A. That further evaluation was indicated on the visit of April 5th, 1984, and that not to do further evaluation to try to come to a diagnosis of the X-ray abnormality was below the standard of care.”

Further questioning was as follows:

“Q. Doctor, you’re aware that Mr. Smith did not return to the Glen Ellyn Clinic following that visit of April 5th, 1984; correct?
A. Yes, sir, I am.
Q. Do you have an opinion as to whether the standard of good medical care would require any sort of follow-up action by Dr. Menet when Mr. Smith did not appear?
* * *
A. Yes, sir. 9
BY MR. SCHROEDER:
Q. And what is that opinion?
A. That normally in a circumstance where there’s an abnormal test and a patient does not follow up on it, either an attempt is made to reschedule the patient. If the patient cannot be contacted, then at least a letter is sent out to the address of last note on the record.
Beyond that, I don’t think a physician can chase after a patient, but certainly that notification, either by phone or mail, is indicated.”

The issue thus presented to this court is if the question of whether a doctor’s conduct falls within “the standard of good medical care” is equivalent to asking whether a doctor possessed and applied the knowledge and used the skill and care that is ordinarily used by reasonably well-qualified doctors in similar circumstances. The problem -with the question as phrased to plaintiff’s expert is the use of the term “good.”

“Highest degree of skill” and “best possible care” are phrases which have been rejected as setting a standard which is too high. (Newell v. Corres (1984), 125 Ill. App. 3d 1087, 1094; Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 1126-27.) The question is whether “good medical care” similarly sets the standard too high. The word “good” has on several occasions been used to define the standing of doctors with which the defendant doctor is to be compared. (E.g., Newell v. Corres (1984), 125 Ill. App. 3d 1087, 1094 (“the standard of care against which such a defendant’s conduct is measured is not the highest degree of skill possible, but the reasonable skill which a physician in good standing in the community would use in a similar case”) (emphasis added); Cassady v. Hendrickson (1985), 138 Ill. App. 3d 925, 934 (“defendant doctor is held to that degree of skill, knowledge, and care exercised by a good practitioner in the same or similar community”) (emphasis added).) However, exactly what “good” means or the connotation that it conveys is a function of how it is used. This is borne out by looking to Webster’s, which variously defines “good” as:

“1 good *** 1 a (1): having a favorable or auspicious character: PROSPEROUS, BENEFICIAL *** (4): favorably affecting one’s interests: leading to or attended by a favorable or prosperous outcome *** b (1): adapted to the end designed or proposed: satisfactory in performance: free from flaws or defects: USEFUL, SUITABLE, FIT *** (2): not impaired: SOUND *** (8): certain to elicit or produce a specified result *** f (1): conforming to the needs or requirements of the case: ADEQUATE, SUFFICIENT, SATISFACTORY *** (4): better than average but short of excellent *** 2 c (1): having or demonstrating the qualities or skills requisite or appropriate in a specified capacity or occupation (a [good] doctor) ***
2 good *** 1 a: something that possesses desirable qualities, promotes success, welfare, or happiness, or is otherwise beneficial ***.” (Webster’s Third New International Dictionary 978 (1971).)

“Standard of good medical care” is thus not as precise as the Illinois Pattern Jury Instructions instruction. And, when “good” is interpreted to mean better than average it contradicts the applicable standard as set forth in Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 1126-27. Consequently, we find that asking whether defendant’s conduct fell within the “standard of good medical care” was improper.

Plaintiff argues that even if Dr. Golomb’s testimony was insufficient to establish that Dr. Menet was negligent, testimony by defense witness Dr. Rosen did establish such negligence. We disagree.

Dr. Rosen stated that if, on April 5, 1984, Dr. Menet had told plaintiff that the X-ray abnormality that he had previously identified was old scar tissue, and plaintiff should not be concerned about it and go on vacation, Dr. Menet’s treatment of plaintiff would fall outside the acceptable standard of care required of reasonably well-qualified physicians.

The problem with plaintiff’s contention is twofold. First, Dr. Rosen’s testimony does not eliminate any prejudicial impact that earlier questioning of Dr. Golomb might have had. Second, and more importantly, Dr. Golomb’s testimony left open the possibility that the jury could have found negligence due to Dr. Menet’s failure to follow up once plaintiff had missed his scheduled appointment.

In accordance with the foregoing analysis, we reverse the judgment of the trial court and remand for a new trial.

Reversed and remanded.

DUNN, J., concurs.