dissenting:
I respectfully dissent from the majority opinion in this case because I am of the opinion that the answer to the special interrogatory can be reconciled to the jury’s general verdict in this case. Moreover, I disagree with the majority’s statement that the plaintiffs’ entire case was premised on the theory that Dr. Garces’ negligence caused LaTonya’s death by allowing her to become severely dehydrated.
In a medical malpractice case, Illinois law mandates that the plaintiff prove: (1) the proper standard of care by which to measure the defendant’s conduct, (2) a negligent breach of the standard of care, and (3) resulting injury proximately caused by the defendant’s lack of skill or care. Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 102, 733 N. E. 2d 726, 731 (2000). It is the plaintiffs duty to present expert testimony to establish the above requirements. Suttle, 315 Ill. App. 3d at 102-103, 733 N.E.2d at 731.
If the plaintiffs had based their entire claim against Dr. Garces on his failure to diagnose and treat LaTonya for dehydration, I would agree with the majority that a finding by the jury that dehydration did not contribute to LaTonya’s death, would be irreconcilable with a jury verdict for the plaintiffs in this case. However, based on the expert testimony in this case, regardless of whether LaTonya died of dehydration, hypothermia or suffocation, the jury could have found that Dr. Garces’ actions or failure to act proximately caused LaTonya’s death.
The jury was instructed that the plaintiffs claimed that Dr. Garces was negligent in one or more of the following respects:
“a. Failed to examine LaTonya King after being brought to the clinic by the mother on January 24, 1994, when he knew or should known that LaTonya King has symptoms of diarrhea, drowsiness and the inability to suck; or
b. Failed to follow up by taking phone calls from Jennifer Simmons, when he knew or should have known that LaTonya King had symptoms of diarrhea, drowsiness and the inability to suck; or
c. Failed to refer LaTonya King to a physician or hospital for examination, diagnosis, or IV treatment when he knew or should have known that LaTonya King had symptoms of diarrhea, drowsiness and the inability to suck; or
d. Permitted his staff to provide inappropriate medical advice or decisions over the phone.”
None of the plaintiffs’ allegations of negligence mention “dehydration” or indeed any specific cause of death. Rather, the plaintiffs’ allegations center around Dr. Garces’ failure to provide follow-up care to LaTonya based upon the symptoms she was displaying, regardless of what disease or condition she was suffering from.
Dr. Givens, the plaintiffs’ expert witness, testified that, having initiated treatment of LaTonya, the standard of care required Dr. Garces to follow up that treatment. In Dr. Givens’ opinion, Dr. Garces violated the standard of care when he did not examine LaTonya after he was informed that she was not responding to recommended therapy, when he did not speak to Jennifer when she called because LaTonya was getting worse, by allowing his staff to advise Jennifer to force LaTonya to take the Pedialyte instead of letting Jennifer speak directly to Dr. Garces, and when he did not make arrangements for LaTonya to be seen by another medical professional.
When asked if the above negligent acts were a proximate cause of LaTonya’s death, Dr. Givens opined, with a reasonable degree of medical certainty, that they were because
“based upon on history and the findings at the autopsy, that [Dr. Garces’] failure to see her and intervene contributed to her death.”
In addition, Dr. Givens opined that had Dr. Garces intervened with appropriate IV fluids, LaTonya would not have died.
Under the proximate cause instruction that the jury received in this case, in order to find Dr. Garces’ failure to follow up treatment with LaTonya was the proximate cause of her death, the jury was not required to find that the failure to do so was the only cause and that it would be sufficient if his acts or failure to act in combination with another cause resulted in her death. Therefore, regardless of the ultimate cause of LaTonya’s death, the jury could have concluded that had Dr. Garces followed up on LaTonya’s care and treatment, she would not have died.
Thus, the jury’s answer to the special interrogatory that dehydration did not contribute to LaTonya’s death did not reflect the jury’s belief that Dr. Garces’ actions were not a proximate cause of LaTonya’s death. The jury merely rejected the premise that dehydration contributed to LaTonya’s death. Under the evidence in this case, the jury could determine that dehydration did not contribute to LaTonya’s death and still find that Dr. Garces’ failure, once having undertaken to treat her, to follow up the treatment for what she ultimately died of was a proximate cause of her death.
The cases relied on by the majority are distinguishable. In Costa, the plaintiffs entire case was based upon the fact that the decedent died from mesothelioma and, therefore, the jury’s finding pursuant to a special interrogatory that the decedent did not die from mesothelioma was irreconcilable with the jury’s general verdict for the plaintiff. In Bluestein, all of the plaintiffs theories of recovery required that the jury find that the drug Cleocin caused or was part of the cause of the plaintiff’s injury. Thus, the jury’s determination that Cleocin was not a proximate cause of the plaintiffs injury could not be reconciled with the jury’s general verdict for the plaintiff.
However, in this case, the plaintiffs’ entire case was not based upon dehydration having contributed to LaTonya’s death. Whatever the cause of death, it was Dr. Garces’ failure to follow up treatment which contributed to her death.
As I am of the opinion that the jury’s determination that dehydration did not contribute to LaTonya’s death was not inconsistent with the jury’s general verdict for the plaintiffs, I respectfully dissent.