|
McDonnell v. McPartlin, No. 1-97-1822 1st Dist. 2/25/99 |
FOURTH DIVISION
February 25, 1999
No. 1-97-1822
EXECUTRIX OF THE ESTATE OF JOHN G. McDONNELL, Deceased, Plaintiff-Appellant, v. RICHARD F. McPARTLIN, III, M.D., RICHARD F. McPARTLIN, III, LTD., THOMAS MULLIN, JR., M.D., and DuPAGE EMERGENCY PHYSICIANS, LTD., Defendants-Appellees. COURT OF COOK COUNTY. No. 88 L 20332 HONORABLE DENISE M. O'MALLEY, JUDGE
PRESIDING. JUSTICE WOLFSON delivered the opinion of the
court: In this professional medical negligence trial two
doctors were accused of failing to timely diagnose and treat John McDonnell's
hip infection, proximately causing his eventual death. While the defendants
denied they were negligent and denied anything they did was a proximate cause of
the injury, they also contended, among other things, a non-party doctor's
conduct was the sole proximate cause of the injury. The jury returned a verdict for the defendant
doctors. This appeal requires us to examine the matter of sole proximate cause,
along with other claims of error that include improper evidence and instructions
on matters of contributory negligence and mitigation of damages. We affirm
judgment on the jury's verdict and on the trial court's order denying a
motion for new trial. FACTS In April 1986, Dr. James Ahstrom (Dr. Ahstrom)
performed hip replacement surgery on John McDonnell (John). Following this
surgery, John's internist was Dr. Richard McPartlin (Dr. McPartlin). On November 8, 1986, Moira McDonnell (Moira), John's
wife, telephoned Dr. McPartlin because John felt sick. Dr. Barbara Loeb (Dr.
Loeb) was covering Dr. McPartlin's patients in his absence and told Moira to
bring John to the Good Samaritan Hospital emergency room. Dr. Thomas Mullin, Jr. (Dr. Mullin) examined John at
the emergency room and spoke with Dr. Loeb. Based on Dr. Mullin's description of
John's condition, Dr. Loeb did not admit John to the hospital. John was
instructed to telephone Dr. Loeb the next day with his blood-sugar level, so she
could monitor closely his diabetes. John and Moira returned home. The next day, November 9, Moira tested John's
blood-sugar and telephoned Dr. Loeb. When she learned his blood-sugar level was
significantly elevated, Dr. Loeb suggested John should return to the emergency
room. John declined, choosing instead to control his blood-sugar level with
insulin. Dr. Loeb agreed. Several hours later, John telephoned Dr. Loeb to
explain his blood-sugar levels had decreased. John assured Dr. Loeb he would
telephone Dr. McPartlin the next day. The next day, November 10, John still felt sick, and
Dr. McPartlin admitted him to the Intensive Care Unit of Good Samaritan
Hospital. Dr. McPartlin eventually diagnosed John's condition as an overwhelming
bacterial infection centered in his surgically-replaced hip. As the infection
progressed, Dr. Ahstrom advised Moira that another hip surgery could kill John
because the infection had become so advanced. Dr. Ahstrom also advised Moira not
to consent to another surgery. Moira followed Dr. Ahstrom's advice. In December 1986, John was transferred to Rush
Presbyterian-St. Luke's Hospital, where his surgically replaced hip was removed.
John died in February 1987 from heart failure associated with the
infection. Moira, as executrix of her husband's estate, filed a
medical malpractice complaint against, inter alia, Dr. McPartlin and
Dr. Mullin. Moira alleged Dr. Mullin negligently failed to diagnose John's
infection during his first trip to the Good Samaritan Hospital emergency room.
Moira alleged Dr. McPartlin also negligently failed to tiimely diagnose the
infection. At trial, the jury found for the defendants. The
trial court entered judgment on the jury's verdict and denied Moira's post-trial
motions. This appeal followed. DECISION 1. Sole Proximate Cause During this trial the defendants repeatedly pointed
to the empty chair. There was a great deal of testimony concerning Dr. Ahstrom's
treatment of John, especially Dr. Ahstrom's unwillingness to remove John's
surgically-replaced hip. The defense lawyers were allowed to argue Dr. Ahstrom's
conduct was the sole proximate cause of the injuries at issue. In addition, the
defendants asked for and received, over objection, a jury instruction concerning
sole proximate cause. See Illinois Pattern Jury Instructions, Civil No. 12.04
(3d ed. 1995) (hereinafter IPI Civil 3d). Moira contends the trial court
erred. More than one issue was joined in this case. The
plaintiff, of course, had to prove a defendant's professional
negligence was a proximate cause of the injury in order to
recover damages from that defendant. That meant establishing a standard of care,
a deviation from that standard, and a causal connection between the deviation
and the injuries sustained. Evanston Hospital v. Crane, 254 Ill. App.
3d 435, 441, 627 N.E.2d 29 (1993). It bears repeating: "The element of proximate cause
is an element of the plaintiff's case. The defendant is not required to
plead lack of proximate cause as an affirmative defense." (Emphasis in
original.) Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83,
93-94, 658 N.E.2d 450 (1995). In this case, the defendants' general denials of any
proximate cause were enough to allow them to raise the defense. Leonardi,
168 Ill. 2d at 101. The defendants did not assume any burden of proof when
they presented evidence of Dr. Ahstrom's conduct. The sole proximate cause
defense "merely focuses the attention of a properly instructed jury *** on the
plaintiff's duty to prove that the defendant's conduct was a proximate cause of
plaintiff's injury." Leonardi, 168 Ill. 2d at 94. Whether a defendant is entitled to a sole proximate
cause instruction depends on the evidence he presents. The defense fails when the evidence merely shows the defendant's
negligence was one of several causes of the injury. In that case, the plaintiff
has sustained his burden. That is, "a sole proximate cause instruction is not
appropriate unless there is evidence that the sole proximate cause (not
'a' proximate cause) of a plaintiff's injury is conduct of another person or
condition." (Emphasis in original.) Holton v. Memorial Hospital, 176
Ill. 2d 95, 134, 679 N.E.2d 1202 (1997). Illinois Pattern Instruction 12.04 is the sole
proximate cause instruction received by the jury: In the Notes on Use for 12.04 the IPI Committee
said: "The second paragraph should be used only where there is evidence tending
to show that the sole proximate cause of the occurrence was the conduct of third
persons." IPI Civil 3d 12.04, Notes on Use. We believe this is such a case. Dr. Ahstrom told the jury he considered removing
John's artificial hip in November 1986, but declined: "At the time I felt that
we had a chance of saving his weight-bearing ability." The defense offered testimony that a range of
treating doctors was telling Dr. Ahstrom the hip prosthesis should come out. On
cross examination: In his November 21 notes Dr. Ahstrom responded to
Dr. McPartlin's note that John "is doomed if prosthesis is not removed." Dr.
Ahstrom wrote: "[John] cannot stand major procedure such as removal of
prosthesis. I don't believe that is necessary anyhow at present." Dr. Orth, one of John's treating physicians, said
when he saw the patient for the first time on November 12, 1986, it was his
opinion, to a reasonable degree of medical certainty, unless the hip was removed
the patient would continue to have the infection and the infection eventually
would kill him. Dr. Shin, another of John's treating physicians,
agreed John's artificial hip had to be removed "in order for him to be able to
survive." John would have survived his infection, Dr. Shin said, if his
artificial hip was removed sooner. Dr. Gump, one of Moira's expert witnesses, on
cross-examination: Dr. Gump also said John likely would have survived
the infection if his artificial hip was removed earlier, but that it was removed
too late, the unfortunate outcome already a foregone conclusion. Dr. Muehrcke, a defense expert, said that John's
artificial hip had to be removed: "I don't believe there's any way that the
infection and its effect on the patient could be stopped or--could be stopped
without it coming out." The role of the orthopedic surgeon, he said, was not to
determine whether a patient was capable of undergoing surgery. During the crucial time, much of November and early
December, Dr. Ahstrom was advising family members not to allow the surgery. They
took his advice. When the operation finally was performed on December 5, 1986,
it was too late. John died because of the infection in February 1987. Based on this evidence, we cannot say the trial
court abused its discretion by allowing testimony, argument, and instruction on
sole proximate cause. A defendant always is free to offer evidence that
its conduct, negligent or not, was not a proximate cause of the injury. Here,
expert testimony clearly established a basis for a jury finding that Dr.
Ahstrom's conduct was the sole proximate cause of injury. Of course, we do not
know the jury made that finding when it decided for the defendants. No special
interrogatory was offered "illuminating what role, if any, the sole proximate
cause defense played in the jury's verdict." Flores v. Cyborski, 257
Ill. App. 3d 119, 135, 629 N.E.2d 74 (1993). Under circumstances like those present here, the
second paragraph of IPI 12.04 must be given to the jury "in order to correct any
negative implications arising from the first paragraph." Ellig v. Delnor
Community Hospital, 237 Ill. App 3d 396, 408, 603 N.E.2d 1203 (1992). See
also Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 974, 702 N.E.2d
303 (1998)(some evidence in the record of sole proximate cause is sufficient to
support the second paragraph of 12.04). Our conclusion rests on our belief that the
"conduct" of the occupant of the empty chair does not have to attain the status
of professional negligence. The defendants' evidence of Dr. Ahstrom's conduct
"in no way shifts to the defendant the burden of proof." Leonardi, 168
Ill. 2d at 94. Moira always had the burden of proving negligence of a defendant
was a proximate cause of John's injury. Leonardi, 168 Ill. 2d at 94
(citing Caley v. Manicke, 29 Ill. App. 2d 323, 328, 173 N.E.2d 209
(1961), rev'd on other grounds 24 Ill. 2d 390, 182 N.E.2d 206 (1962)).
She had to prove a defendant's deviation from the standard of care was a cause
of John's injury. The second paragraph of 12.04 is another way of stating that
burden. It is a reformulation of the plaintiff's task. Nothing in the IPI
suggests the standard of care instructions (see IPI Civil 3d Nos. 105.01,
105.02) apply to anyone other than a defendant. The plaintiff is pursuing a
cause of action against the defendant, not the other way around. The word "conduct" was carefully chosen by the IPI
Committee. It declined to characterize the word, a common sense judgment. There
is no suggestion in the instruction or in the Notes on Use that the word
"conduct" requires any definition. At the risk of appearing casuistic, we suggest the
proposition that an event cannot happen without a negligent cause defies logic.
People get hurt. Sometimes a cause is negligence, or wilfulness, or design.
Sometimes it is not any of these things. Nevertheless, the event takes place.
People, doctors included, make judgments that, in hindsight, turn out to be
mistaken. Those judgments might not be professionally negligent when made. Yet,
injury resulted. See Ramos v. Pankaj, 203 Ill. App 3d 504, 561 N.E.2d
744 (1990)(jury properly told it could find defendant's failure to discover
infection neither aggravated nor caused the damage to plaintiff's hip);
Burge v. Morton, 99 Ill. App. 3d 266, 425 N.E.2d 539 (1981)(proper to
tell jury penicillin-resistant bacterium and not defendant dentist's acts could
be the sole proximate cause of plaintiff's infection). We recognize Freeman v. Petroff, 288 Ill.
App. 3d 145, 156, 680 N.E.2d 453 (1997), a Fifth District case, refers to "the
need to establish a standard of care and a deviation therefrom by a nonparty in
order to determine whether there is an evidentiary basis to support giving the
second paragraph of IPI Civil 3d No. 12.04." No such suggestion is contained in Ellig,
237 Ill. App. 3d at 408: "*** the jury could have reasonably found, based
on the evidence presented, that someone else was the sole proximate cause of the
baby's injuries." In Wojcik, 299 Ill. App 3d at 974, we
said: In Wojcik, two defense experts testified
the failure of St. Anthony's Hospital, a non-party, to discontinue the
plaintiff's IV line was the sole proximate cause of her injury.
Our examination of the record in that case reveals neither witness said the
hospital's actions were professionally negligent or deviated from the appropriate standard of care.
We held the evidence was sufficient to justify the sole proximate cause
instruction. We now hold the second paragraph of IPI 12.04 may be
given the jury in a medical malpractice case even though no expert testifies the
"conduct" of the third person non-party was professionally negligent. Any such
requirement would shift the burden of proof to the defendant. The "law in no
way" does that. Leonardi, 168 Ill. 2d at 94. Of course, we do not
suggest the sole proximate cause instruction is justified in
all cases. There must be "some evidence" to support it. Leonardi, 168
Ill. 2d at 101. Putting aside for a moment our conclusions
concerning a non-party's "conduct," we find there was sufficient evidence in
this case from which the jury could have concluded Dr. Ahstrom was
negligent. Dr. Ahstrom was the only orthopedic surgeon on the
case from November 16 to December 5, 1986. During that time, contrary to the
views of every other doctor in the case, he resisted removal of the prothesis
and successfully urged family members to resist it. As of November 24, 1986, Dr.
Ahstrom did not believe the prosthesis needed to be removed. Dr. Marquardt, another of John's treating
physicians, told the jury he had no doubt that John "needed to
be quickly taken to the operating room" for removal of the
prosthesis: "This was the only alternative this gentleman had in hopes of
recovering from what appeared to be a life-threatening condition." Dr. Orth, who saw John on November 12, 1986, said he
never heard of an orthopedist saying he would not remove a prosthesis when many
of his colleagues tell him it has to come out or the patient is doomed. It was
Dr. Orth's opinion as of November 12, 1986, to a reasonable medical certainty,
that if the hip were not removed John was going to die. Further, there were these questions and answers on
cross-examination of Dr. Orth: And then: It is the nature and extent of all the evidence, not
the use of formulaic words, that establish a non-party's professional
negligence. See Dominguez v. St. John's Hospital, 260 Ill. App. 3d 591,
595, 632 N.E.2d 16 (1994)(phrase "within a reasonable degree of medical
certainty" is not required where expert's level of certainty is otherwise
established by his testimony). A jury does not have to hear the words "deviation
from standard of care" before it decides a non-party doctor's conduct was
negligent. That would be an exercise of form over substance. Those words were not used by expert witnesses in
Wojcik, 299 Ill. App. 3d at 975, when they testified the non-party
hospital's conduct was the sole proximate cause of the plaintiff's
injury. If this jury did find Dr. Ahstrom's negligence was
the sole proximate cause of John's injury, its conclusion would be supported by
the record. 2. Contributory Negligence and Mitigation of
Damages Moira contends the trial court erred by allowing
evidence and jury instructions concerning John's refusal to undergo hip surgery
to cure the infection. Moira also contends the trial court erred in allowing
evidence and jury instructions concerning her and her daughter Nula's
contributory negligence toward John. Because these issues present related
questions, we address them together. Under the Survival Act (see Ill. Rev. Stat. 1985,
ch. 110 1/2, par. 27-6, currently 755 ILCS 5/27-6 (West 1996)), the
administrator of the decedent's estate seeks to recover for any statutory or
common law claims the decedent accrued before his death. Bryant v. Kroger
Co., 212 Ill. App. 3d 335, 336-37, 570 N.E.2d 1209 (1991). Under the Wrongful Death Act (see Ill. Rev. Stat.
1985, ch. 70, par. 1-2, currently 740 ILCS 180/1 et seq. (West 1996)),
the decedent's next of kin seek to recover their own pecuniary losses caused by
the decedent's death. Kessinger v. Grefco, Inc., 251 Ill. App. 3d 980,
982-83, 632 N.E.2d 946 (1993). In the survival claim, the deceased's contributory
negligence may reduce the estate's damages. It does not defeat the action. In
the wrongful death claim, the contributory negligence of the deceased's next of
kin can eliminate any damage recovery by that person, but it does not defeat the
action. See Biundo v. Christ Community Hospital, 104 Ill. App. 3d 670,
674, 432 N.E.2d 1293 (1982)("contributory negligence by next of kin under the
Wrongful Death Act *** does not bar recovery but simply precludes such heir from
recovery"). On the survival count, the court instructed the
jury: See IPI Civil 3d No. 105.08. On the wrongful death count, the court instructed
the jury: "Under the wrongful death count it was the duty of
[the] plaintiffs *** before and at the time of the occurrence to use ordinary
care for the safety of [John]. The above plaintiffs are contributorily negligent
if he or she failed to use ordinary care for the safety of [John]. And the
failure to use such ordinary care was the proximate cause of the death of
[John]. The contributory negligence of any of the above
plaintiff [sic] bars that individual or those individuals who contributed to
cause the death of [John] from recovery for pecuniary damages under the wrongful
death count. However, that individual or those individuals who
are not contributorily negligent may be awarded pecuniary damages to the extent
they've been proven to have suffered by that individual or those
individuals." See IPI Civil 3d 10.03. The court also instructed: The court posed two special interrogatories to the
jury: "do you find that [Moira] failed to follow reasonable medical advice and
that in doing so she was contributorily negligent" and "do you find that [Nula]
failed to follow reasonable medical advice and in doing so she was
contributorily negligent." The special interrogatories did not test the jury's
general verdict (Schultz v. Republic Insurance Co., 124 Ill. App. 3d
342, 346, 464 N.E.2d 767 (1984)), but the jury's answers provide us some insight
into their verdict. The jury found Moira was, but Nula was not,
contributorily negligent. Thus, Moira's negligence meant she could not recover
for her pecuniary injuries, and Nula's lack of negligence meant she could
recover for her pecuniary injuries. Contributory negligence never was an issue
for Ann and Richard. But none of the survivors recovered because the jury
returned a general verdict for the defendants. Contributory negligence in this
case relates to damages, not liability. Fetzer v. Wood, 211 Ill. App.
3d 70, 75, 569 N.E.2d 1237 (1991). Because the jury reached a verdict in favor
of the defendants, it obviously did not address the issue of contributory
negligence. Fisher v. Slager, 201 Ill. App. 3d 480, 489, 559 N.E.2d 118
(1990); Cairns v. Hansen, 170 Ill. App. 3d 505, 512, 524 N.E.2d 939
(1988); Lebrecht v. Tuli, 130 Ill. App. 3d 457, 476, 473 N.E.2d 1322
(1985). Illinois law is clear: a plaintiff has no duty to
mitigate his damages by submitting to serious or major surgery. Hall v.
Dumitru, 250 Ill. App. 3d 759, 765, 620 N.E.2d 668 (1993); see Lapidus
v. Hahn, 115 Ill. App. 3d 795, 450 N.E.2d 824 (1983); Montgomery v.
Terminal R.R. Ass'n, 73 Ill. App. 3d 650, 392 N.E.2d 77 (1979);
Rosenstein v. Chicago Transit Authority, 12 Ill. App. 3d 1089, 299
N.E.2d 376 (1973); Howard v. Gulf, Mobile & Ohio R.R. Co., 13 Ill.
App. 2d 482, 142 N.E.2d 825 (1957); see also IPI Civil 3d No. 33.01,
Comment. While John's hip surgery was certainly serious or
major, the issue of whether John failed to mitigate damages by refusing this
surgery is irrelevant to either the survival or wrongful death count. The jury
found the defendants were not liable and thus did not reach the issue of
damages. "Initially, before the jury reaches the question of
damages, it must decide liability. Here, the jury returned a verdict in favor of
defendants. It did not reach the damages issue; therefore the issue is not
pertinent to the appeal." Lebrecht, 130 Ill. App. 3d at 476. See Karr v. Noel, 212 Ill. App. 3d 575,
584, 571 N.E.2d 271 (1991); Fisher, 201 Ill. App. 3d at 489;
Cairns, 170 Ill. App. 3d at 512 (1988). Moira contends, however, this mitigation of damages
issue infected the jury's liability verdict. In Hall, the
court did note, "*** 'there may be cases in which errors which go to the
question of damages may be so pervasive and prejudicial as to create the
likelihood that they may have affected a jury's decision on the issue of
liability.'" Hall, 250 Ill. App. 3d at 766 (quoting Mulvey v.
Illinois Bell Telephone Co., 53 Ill. 2d 591, 599-600, 294 N.E.2d 689
(1973)). The court held evidence the plaintiff refused to undergo a serious
operation prejudicially shifted the jury's attention away from the defendant's
alleged medical malpractice. Hall, 250 Ill. App. 3d at 766. We believe Hall stands alone among Illinois
cases on this issue, and we refuse to assume jurors are so easily distracted.
Evidence that John refused to undergo a dangerous operation was inadmissible to
prove failure to mitigate damages. But this evidence affected only mitigation of
damages. Any error admitting this evidence or instructing on it became harmless
when the jury found for the defendants on liability. Nonpublishable material omitted under
Supreme Court Rule 23. CONCLUSION This may not have been a perfect trial, but our
review of the record persuades us the plaintiff received a fair trial, free from
unfair prejudice or harmful error. Further, the trial court did not abuse its
discretion when it denied the plaintiff's motion for new trial. We affirm the
judgments entered on behalf of the defendants. Affirmed. SOUTH, P.J., and HOFFMAN, J.,
concur.
MOIRA McDONNELL,
APPEAL FROM THE
CIRCUIT
"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 injury to
the plaintiff was the conduct of some person other than the defendant, then
your verdict should be for the defendant." IPI Civil 3d No. 12.04.
"DEFENSE COUNSEL: Now, doctor, as of [November 21, 1986], you have
the infectious disease doctor, the cardiologist, the surgeon, the internal
medicine doctor all telling you *** that this hip, this hip prosthesis is not
only in their judgment, in their opinion infected, that it's the source of the
fever spikes, that it has to come out, and if it doesn't come out he is going
to die, correct?"
DR. AHSTROM: Well, that's what they
wrote.
DEFENSE COUNSEL: And you disregarded all
of their opinions, isn't that correct?
DR. AHSTROM: Well, I wrote my own
opinion, yes."
"DEFENSE COUNSEL: Doctor, in particular, you agree with Dr.
McPartlin's note of November 21, 1986 that the patient was doomed if the hip
was not removed, isn't that true?
DR. GUMP: That is true."
"*** [A] defendant has the right not only to rebut evidence
tending to show that his acts are negligent and the proximate cause of claimed
injuries, but he also has the right to endeavor to establish by competent
evidence that the conduct of a third person is the sole proximate cause."
"DEFENSE COUNSEL: Now, doctor, if an orthopedic surgeon refuses to
believe, such as in the case of Mr. McDonnell, that the prosthesis is the
bleeding [sic] ground for the bacteria and, therefore, refuses to consider the
opinions of the medicine people who are saying that the patient should be
taken to surgery for removal of the prosthesis and that the patient was fit to
undergo the surgery, that would be a departure from the standard of care,
would it not?
DR. ORTH: Yes."
Dr. Gump was asked whether it was his
opinion that Dr. Ahstrom "erred grievously" in not promptly removing that
prosthetic hip. His answer: "I have indicated I thought that it could have
been done sooner rather than later, yes."
"DEFENSE COUNSEL: And do you feel that Dr. [Ahstrom's] resistance
to removal of the prosthesis made management of [John's] care an impossibility
while he was on Dr. Ostrom's [sic] service; isn't that true?
DR. GUMP: Well, he was actually--yes, Dr.
McPartlin's service. I think it made it more difficult for Dr. McPartlin,
yes."
"As to the survival count a patient must exercise ordinary care to
follow reasonable medical advice. A physician is not liable for the
consequences of a patient's failure to do so. A patient's failure to use
ordinary care in obtaining treatment or in following instructions does not
absolve the negligence, it only absolves the physician from any damage caused
by the patient's failure to exercise ordinary care to follow reasonable
medical advice."
"If you find that [Moira] or [Nula] negligently contributed to
cause the death of the decedent by failing to follow reasonable medical advice
the conduct of that person or those persons does not bar recovery by the
plaintiff. But in any award you may make you may not include damages for any
pecuniary injury suffered by that person. The issue of contributory negligence
does not apply to Ann Doherty [Ann] and Richard McDonnell [Richard]."