dissenting:
Dr. Hameeduddin did not serve her patient well when she failed to tell her about the site-of-surgery discrepancies between Dr. Ferguson’s postoperative report and the second MRI. The jury had the right to find that was a deviation from the standard of care, thin as it might be. At the same time, I believe the evidence concerning proximate cause, when viewed most favorably to the plaintiff, so overwhelming favors the defendant that the verdict for the plaintiff cannot stand. Snelson v. Kamm, 204 Ill. 2d 1, 42 (2003); Scardina v. Nam, 333 Ill. App. 3d 260, 270 (2002).
Plaintiff has pursued a theory, successfully so far, that never has been approved by any reported decision in this state. The plaintiffs theory is that Dr. Hameeduddin’s failure to inform Mrs. Mansmith that Dr. Ferguson operated on the wrong part of her body was a proximate cause of the injuries incurred when Dr. Miz recommended an epidural steroid injection, which then caused the acute staph infection that killed her.
Plaintiff cites informed consent cases to support his contention that he did not have to present expert testimony to establish proximate cause. See, for example, Coryell v. Smith, 274 Ill. App. 3d 543 (1995); Zalazar v. Vercimak, 261 Ill. App. 3d 250 (1993); Casey v. Penn, 45 Ill. App. 3d 1068 (1977).
Our supreme court never has adopted the proposition that expert testimony is not required to prove proximate cause in informed consent cases. In fact, in a case involving a lack of communication between nursing staff and the attending physician the supreme court referred to the “general rule” that must be applied: “except in very simple cases, expert testimony is necessary in professional negligence cases to establish the standard of care and that its breach was the proximate cause of the plaintiff’s injury.” (Emphasis added.) Snelson v. Kamm, 204 Ill. 2d at 43-44.
The case we decide today is not a “simple case.” More significantly, it is not an informed consent case. The plaintiff does not claim the defendant failed to warn Mrs. Mansmith about foreseeable risks and complications involved in medical treatment performed by the defendant or someone under the defendant’s control. See Coryell, 274 Ill. App. 3d at 549. In fact, the plaintiff expressly disclaims any desire to categorize this case as an informed consent case.
Nor is this a case where the defendant’s negligence compromised the effectiveness of treatment received or increased the risk of harm to the plaintiff. Holton v. Memorial Hospital, 176 Ill. 2d 95, 119 (1997). That is, this is not a “loss of chance” case where the theory is used to prove cause-in-fact. Scardina v. Nam, 333 Ill. App. 3d at 269.
What, then, is this case? Plaintiff calls it a “failure to inform case.” But he offers no support for the proposition that such a theory exists in this state. The barrier faced by plaintiff is the well-established proposition that in this medical negligence case he must establish, to a reasonable degree of medical certainty, that the defendant’s malpractice more probably than not caused his or her injury. Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 972 (1997). The causal connection must not be contingent, speculative, or merely possible but, rather, “must be shown by such a degree of probability as to amount to a reasonable certainty that such a nexus exists.” Scardina v. Nam, 333 Ill. App. 3d at 271; Susnis v. Radfar, 317 Ill. App. 3d 817, 827 (2000). Generally, simply creating a condition that makes the injury possible is not, standing alone, enough to establish proximate cause. Unger v. Eichleay Corp., 244 Ill. App. 3d 445, 451 (1993).
The factual chain from the defendant’s lack of candor to the acute staph infection that killed Mrs. Mansmith has been stretched beyond the breaking point. The evidence invites the jury to guess and speculate. Dr. Brown’s testimony engraved the invitation. From the simple fact that at one point the Mansmiths expressed a desire to go to the University of Chicago Medical Center for a second opinion, Dr. Brown concluded Mrs. Mansmith would have sought a neurosurgical reevaluation and had a second operation. That is unsupported speculation. The Mansmiths did not seek a referral to the University of Chicago until after Mrs. Mansmith received the injection.
On several occasions, the trial court sustained objections when Dr. Brown attempted to testify to what, in his opinion, Mrs. Mansmith would have done if the defendant had told her about the discrepancy between Dr. Ferguson’s operative report and the second MRI. The grounds for the objection were that the witness was being asked to speculate. The trial court rulings were correct. But then the jury was allowed to engage in that same speculation.
Plaintiffs cause is not aided by the fact that the defendant failed to inform Dr. Ferguson he might have operated on the wrong part of Mrs. Mansmith’s back. The Mansmiths had decided not to return to Dr. Ferguson even before they learned about his misplaced surgery. For what conceivable reason would they return to him after learning about his gross negligence?
Dr. Miz had access to Mrs. Mansmith’s medical records. He recommended the epidural injection instead of the surgery because Mrs. Mansmith had increased risk factors for surgery and had suffered previous postsurgical problems. Neither at his deposition nor at trial was Dr. Miz asked the question that might have fortified the plaintiffs causation theory. He never was asked if he would have recommended surgery instead of the epidural injection if he had been told that Dr. Ferguson may have operated at the wrong level. That omission speaks volumes. We are left with no credible evidence that the defendant’s failure to inform Mrs. Mansmith had substantial impact on Dr. Miz’s decision to use the epidural injection.
Because I believe the evidence of proximate cause was deficient as a matter of law, I disagree with the majority’s conclusion that the trial court did not err when it denied the defendant’s motion or a judgment n.o.v. I also believe, given the unusual fact situation here, it was error, to refuse to tell the deliberating jury the case against Dr. Ferguson had been settled. The grave and unnecessary risk of tarring Dr. Hameeduddin with Dr. Ferguson’s flagrant misconduct could easily have been mitigated. I respectfully dissent.