Aguilera v. Mt. Sinai Hospital Medical Center

THIRD DIVISION
December 10, 1997



No. 1-94-1893

HILDA AGUILERA, Indiv. and as Special
Adm'x of the Estate of SALVADOR
AGUILERA, Deceased, and as Mother and
Next Friend of LETICIA AGUILERA and
SALVADOR AGUILERA, JR., Minors,

Plaintiff-Appellant,

v.

MOUNT SINAI HOSPITAL MEDICAL CENTER, and
KAREN CERVENKA,

Defendants-Appellees.)
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)Appeal from the
Circuit Court of
Cook County

No. 89 L 4026

Honorable
Michael J. Kelly,
Judge Presiding.


JUSTICE CAHILL delivered the opinion of the court:
We revisit, at the direction of our supreme court, an action
for survival and wrongful death based on medical malpractice.
The jury found for plaintiff and awarded substantial damages.
The trial court entered judgment notwithstanding the verdict,
finding "that no reasonable fact finder could conclude that the
death of the *** decedent was proximately caused by the failure
*** to conduct a CT scan *** in a more timely fashion."
Plaintiff appealed.
In Aguilera v. Mt. Sinai Hospital Medical Center, 282 Ill.
App. 3d 363, 668 N.E.2d 94 (1996), we affirmed the trial court's
judgment notwithstanding the verdict. On June 4, 1997, our
supreme court ordered that we reconsider our decision in light of
Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202
(1997). We withdrew our opinion and invited the parties to
rebrief the case in light of Holton. After reviewing the case
under the guidance of Holton, we again affirm the judgment
notwithstanding the verdict entered by the trial court.
The record shows that in the early morning hours of April
19, 1987, Salvador Aguilera was logged into the emergency room of
Mount Sinai Hospital, complaining of numbness on the left side of
his body. His brother, who drove him to the hospital, said they
arrived at 2 a.m., but hospital records show Aguilera arrived at
3 a.m. Whatever the hour, the parties disagree about the care
and treatment Aguilera received over the next several hours.
Plaintiff's expert medical witnesses testified that the treatment
deviated from the standard of care. Defense expert medical
witnesses testified that it did not.
Aguilera was formally admitted to the hospital, taken from
the emergency room, and assigned to a room at approximately 7
a.m. At about 8:20 a.m. he began to suffer seizures. At about
9:30 a.m. he was given a CT scan that revealed a massive
intracerebral hemorrhage measuring 4 by 6 centimeters. Aguilera
lapsed into a coma that day and died of cardiac arrest three days
later. The death certificate recorded that Aguilera died from
cardiopulmonary arrest secondary to a cerebral hemorrhage.
Both of plaintiff's expert medical witnesses testified that
the failure of the emergency room physician to order an earlier
CT scan while Aguilera was undergoing treatment and observation
in the emergency room was a deviation from the standard of care.
Dr. Glenn Hamilton, a board-certified emergency medicine
physician, testified that, given Aguilera's presenting signs and
symptoms, an immediate CT scan should have been performed. This
would have permitted the medical or surgical intervention that,
in Dr. Hamilton's opinion, may have saved Aguilera's life. The
following colloquy then occurred between plaintiff's attorney and
Dr. Hamilton:
"Q. In your opinion, Doctor, again to a
reasonable degree of medical certainty, had that delay
been avoided, would Mr. Aguilera survive?
A. My opinion is that he would.
***
[A]t that point his chance of survival, if
appropriately diagnosed, is greater than fifty percent.
***
Q. Do you believe the delay is directly related
to his death?
A. I think the two are definitely related."
On cross-examination Hamilton testified that, assuming a
prompt CT scan, he would have deferred to a neurosurgeon to
decide whether surgical intervention was appropriate. Hamilton
testified that if a neurosurgeon had concluded the bleed was
inoperable, "there [was] the potential of shifting to medical
therapy." But he testified that he knew of no medical treatment
that would stop a bleed or prevent a bleed from restarting.
Plaintiff's second expert, Dr. Dragomir Vuckovich, a board-
certified neurologist, testified that it was critical that the CT
scan be performed early, not only to permit effective treatment
of the patient, but to determine the precise location and size of
the hemorrhage while still treatable. In his opinion the CT scan
of Aguilera, taken six to seven hours after he entered the
emergency room, showed an inoperable hemorrhage. But it was
significant, in Vuckovich's opinion, that Aguilera arrived at the
emergency room conscious and alert and remained so for several
hours. This showed that there had not yet been involvement of
the brain stem. Vuckovich concluded, based on Aguilera's
clinical signs, that if a CT scan had been performed earlier it
would have shown a small bleed in the thalamus. Until Aguilera
suffered seizures shortly after 8 a.m., he had no clinical signs
of severe brain involvement and his level of consciousness and
vital signs were encouraging factors. Vuckovich was then asked
his opinion about Aguilera's chance of survival if he had been
given prompt treatment. Vuckovich answered:
"At his age at the clinical course that he displayed
from 3:20 a.m. until 9 o'clock, I believe his survival,
it would have been in the region of 75, 80 percent."
In explaining the reason for this opinion, Vuckovich relied
mostly on studies of and personal experience with patients with
thalamic bleeds who were successfully treated through
neurosurgery. On cross-examination, Vuckovich said he would
consult and seriously consider, if not defer to, a neurosurgeon's
opinion about whether surgical intervention would have been
appropriate following an earlier CT scan. He did not know what a
neurosurgeon would have done if called after an earlier CT scan.
When asked whether neurosurgery is "a modality for treatment of a
thalamic stroke or thalamic bleed," Vuckovich initially responded
"at times, yes." But he then reaffirmed his deposition testimony
that neurosurgery is "[n]ot an ideal" modality for thalamic
bleeds.
In granting judgment notwithstanding the verdict, the trial
court reasoned that even if defendants deviated from the standard
of care in failing to order an earlier CT scan, plaintiff failed
to offer evidence that this negligence was the proximate cause of
plaintiff's injury. Plaintiff contends that the trial court
erred and that her experts' testimony was sufficient to establish
proximate cause.
Whether there is a deviation from the standard of care and
whether the deviation was a proximate cause are normally
questions for the jury. Borowski v. Von Solbriq, 60 Ill. 2d 418,
424, 328 N.E.2d 301 (1975). Judgment notwithstanding the verdict
should be entered only when all the evidence, viewed in the light
most favorable to the opponent of the motion, so overwhelmingly
favors the movant that no contrary verdict based on that evidence
could stand. Pedrick v. Peoria & Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967). A motion for a judgment
notwithstanding the verdict presents a question of law and will
be granted only if there is a total failure or lack of evidence
to prove an essential element of the plaintiff's case. Merlo v.
Public Service Co., 381 Ill. 300, 45 N.E.2d 665 (1942).
Plaintiff argues that the testimony of her experts is
evidence of proximate cause. Plaintiff cites to Northern Trust
Co. v. Louis A. Weiss Memorial Hospital, 143 Ill. App. 3d 479,
493 N.E.2d 6 (1986), Chambers v. Rush-Presbyterian-St. Luke's
Medical Center, 155 Ill. App. 3d 458, 508 N.E.2d 426 (1987), and
the Restatement (Second) of Torts section 323 (1965) for the
proposition that a plaintiff demonstrates a proximate cause
relationship if the patient lost an opportunity to survive
because of a defendant's negligence.
Defendants argue in response that the testimony of
plaintiff's experts failed to establish proximate cause under
Illinois law. Plaintiff must establish that it is more probably
true than not true that the negligence was a proximate cause of
the injury. Borowski, 60 Ill. 2d at 424. Proximate cause in a
malpractice case must be established by expert testimony to "a
reasonable degree of medical certainty." First National Bank v.
Porter, 114 Ill. App. 3d 1, 13, 448 N.E.2d 256 (1983).
Defendants argue that a CT scan is a diagnostic tool that
cannot alleviate a condition. Plaintiff must prove not only that
an earlier CT scan would have revealed the condition, but, under
the appropriate standard of care, the diagnosis would have
triggered medical or surgical intervention to prevent the
decedent's death.
In our original opinion, we noted that plaintiff did not
argue a "lost chance" theory, but that even if she had done so we
believed Illinois law did not recognize this as a cause of action
under which plaintiff could recover. Although Illinois courts
had been inconsistent in their applications of the "lost chance"
doctrine, we believed Hare v. Foster G. McGaw Hospital, 192 Ill.
App. 3d 1031, 549 N.E.2d 778 (1989), reflected Illinois law on
the matter. Holton overruled Hare. But in doing so, the court
stressed that the rejection of Hare was based on the Hare holding
that a "lost chance" theory could not be harmonized under any
circumstances with traditional notions of proximate cause. The
Holton court noted that "the specific disposition[] *** in Hare
*** may have been justified," and overruled Hare "to the extent
that [its] analysis conflicts with our holding in the instant
case." Holton, 176 Ill. 2d at 118-19.
Holton held that the "lost chance" doctrine is not a
separate theory of recovery in Illinois, but is a concept that
enters into the proximate cause analysis in medical malpractice
cases where a plaintiff alleges a defendant's "'negligent delay
in diagnosis or treatment *** lessened the effectiveness of
treatment.'" Holton, 176 Ill. 2d at 115, quoting Northern Trust
Co. v. Louis A Weiss Memorial Hospital, 143 Ill. App. 3d 479, 487
(1986). In Holton, the trial court denied defendant's motion for
judgment notwithstanding the verdict. The evidence at trial
revealed that the plaintiff went to the hospital complaining of
numbness below the waist and tingling in her leg. She was
admitted to the hospital. The next day she noticed increasing
difficulty in moving her leg, which she reported to attending
nurses and nurses aides. They did not, in turn, report her
changes of condition to a doctor. The neurosurgeon on call
testified--and this is critical to the resolution in Holton and
the case before us--that if he had been notified of the
plaintiff's change of condition, he would have come to the
hospital immediately and would have had enough time to properly
diagnose and ease the pressure on the spinal cord. Our supreme
court agreed with the trial court's decision that the evidence
supported the jury's verdict on the issue of proximate cause
because the record supported "the inference that defendant's
negligent acts and omissions prevented [plaintiff's] physicians
from correctly diagnosing and treating her condition." Holton,
176 Ill. 2d at 110.
Our supreme court addressed the disagreement among Illinois
courts about whether the loss-of-chance doctrine relaxes the
traditional proximate cause standard in medical malpractice cases
or whether traditional principles of proximate cause are
satisfied by and can be harmonized with the loss-of-chance
concept. The court agreed with cases finding the latter. See
Holton, 176 Ill. 2d at 113-18, citing Hajian v. Holy Family
Hospital, 273 Ill. App. 3d 932, 652 N.E.2d 1132 (1995); Pumala v.
Sipos, 163 Ill. App. 3d 1093, 517 N.E.2d 295 (1987); Chambers,
155 Ill. App. 3d 458; Northern Trust Co., 143 Ill. App. 3d 479.
The court quoted with approval section 323 of the Restatement
(Second) of Torts (1965), which provides that "'[o]ne who
undertakes *** to render services to another which he should
recognize as necessary for the protection of the other's person
or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform
his undertaking, if (a) his failure to exercise such care
increases the risk of such harm ***.'" Holton, 176 Ill. 2d at
114-15, quoting Restatement (Second) of Torts 323 (1965). The
court concluded:
"To the extent a plaintiff's chance of recovery or
survival is lessened by the malpractice, he or she
should be able to present evidence to a jury that the
defendant's malpractice, to a reasonable degree of
medical certainty, proximately caused the increased
risk of harm or lost chance of recovery." Holton, 176 Ill. 2d at 119.
Here defendants argue that, under Holton, a directed verdict
remains proper in a wrongful death suit where the evidence
reveals that no medical treatment was available for the
decedent's fatal illness. We agree. Unlike the plaintiff in
Holton, the record before us contains no evidence to support the
opinion of plaintiff's experts that the negligent delay in
administering a CT scan lessened the effectiveness of treatment.
The supreme court in Holton approved of the proximate cause
analysis in Pumala, 163 Ill. App. 3d 1093, 517 N.E.2d 1093. In
Pumala, the court said: "Plaintiff must present evidence which
shows with a reasonable degree of medical certainty that a
negligent delay in diagnosis or treatment lessened the
effectiveness of treatment ***." (Emphasis added.) Pumala, 163
Ill. App. 3d at 1098. The plaintiff argued that the defendant's
misdiagnosis of a tumor in her leg caused the amputation of her
leg several years later. The Pumala court noted that no expert
testified to a reasonable degree of medical certainty that an
alternative treatment could have been given that would have
negated the need for amputation. The court upheld a directed
verdict because the plaintiff had not shown that defendant's
negligence lessened the effectiveness of her treatment. Pumala,
163 Ill. App. 3d at 1099.
Similarly, defendants here argue that no evidence was
offered that an earlier CT scan and diagnosis of the small
thalamic bleed would have led to treatment to prevent or lessen
the second massive bleed that caused Aguilera's death. An expert
may give an opinion without disclosing the facts underlying it.
Wilson v. Clark, 84 Ill. 2d 186, 194, 399 N.E.2d 651 (1981). The
burden then shifts to the adverse party on cross-examination to
elicit the facts that underpin the expert's view. Wilson, 84 Ill. 2d at 194. An expert opinion is only as valid as the
reasons for the opinion. When there is no factual support for an
expert's conclusions, the conclusions alone do not create a
question of fact. Gyllin v. College Croft Enterprises, Ltd., 260
Ill. App. 3d 707, 715, 633 N.E.2d 111 (1994).
On cross-examination, defendants elicited testimony from
plaintiff's experts showing that their conclusion that delay in
ordering a CT scan was a proximate cause of decedent's death was
not supported by the facts. Vuckovich testified that he did not
know if surgical intervention should have been ordered if a
prompt CT scan had been administered. Both experts said that the
decision of whether neurosurgery should be performed would not
have been made without input from a neurosurgeon. Hamilton said
he would defer to a neurosurgeon's opinion. Vuckovich said he
would consult a neurosurgeon and seriously consider, if not defer
to, the neurosurgeon's opinion. But the only two neurosurgeons
who testified agreed with the treating neurologist that, even
with an earlier CT scan, surgery would not have been appropriate
or ordered because the bleed was deep within the brain inside the
thalamus. Without supporting testimony from a neurosurgeon,
plaintiff's experts' testimony was insufficient to show that
neurosurgery, much less effective neurosurgery, should have
occurred absent defendants' negligence. In contrast, the
critical evidence in Holton was offered by the treating
physician, who testified that had he been informed of the
patient's symptoms earlier he would have intervened with
treatment to lessen the chance of paralysis.
The record does reveal that certain medications were
available as an alternative to surgery. But defense expert Dr.
Kari Stefansson testified that failure to administer these
medications would not have been a deviation from the standard of
care. This opinion was not controverted. Neither of plaintiff's
experts testified that medicine should have been administered
following an earlier CT scan or that the failure to administer
the medicine would have been a deviation from the standard of
care. No expert testified that medication would have lessened
the injury that caused plaintiff's death--the second hemorrhage.
Hamilton testified that he knew of no medication that would have
prevented the second hemorrhage or stopped the bleeding once it
began.
The reasons for plaintiff's experts' opinions on proximate
cause, as developed during direct and cross-examinations, failed
to establish a predicate for their opinions about proximate
cause. The absence of expert testimony that, under the
appropriate standard of care, an analysis of an earlier CT scan
would have led to surgical intervention or other treatment that
may have contributed to the decedent's recovery creates a gap in
the evidence of proximate cause fatal to plaintiff's case. See
Gill v. Foster, 157 Ill. 2d 304 (1993) (hospital not liable where
treating physician testified that nurse's failure to notify him
of patient's condition did not affect the doctor's treatment of
the patient). Plaintiff failed to offer evidence to a reasonable
degree of medical certainty that the alleged negligent delay in
administering a CT scan lessened the effectiveness of the medical
treatment given to Aguilera. This is the test formulated in
Northern Trust (143 Ill. App. 3d at 487) and endorsed in Holton
(176 Ill. 2d at 115). As Holton holds, the test harmonizes the
apparent conflict between the "lost chance" concept and
traditional notions of proximate cause without diminishing the
vitality of the latter. Without such evidence, the opinions
offered by the plaintiff's experts in the case before us must be
viewed as conjecture. A directed verdict for the defendant is
proper when the causal connection between treatment, or a delay
in treatment, and the claimed injury is "contingent, speculative
or merely possible." Pumala, 163 Ill. App. 3d at 1099.
Affirmed.
THEIS and O'BRIEN, JJ., concur.