January 27, 2009
LEAH WALTON, Administrator of the
Estate of TREVOR P. WALTON, Deceased,
RICHARD V. DIRKES, M.D.,
Appeal from the
Circuit Court of
Deborah M. Dooling,
JUSTICE WOLFSON delivered the opinion of the court:
The question in this medical malpractice case is whether the
plaintiff presented enough evidence to establish a causal
connection between the defendant doctor’s negligent failure to
order a certain blood test and the death of Trevor Walton.
jury thought so, but the trial judge entered a judgment
notwithstanding the jury’s verdict.
We reverse the trial judge’s
decision and remand this cause for a hearing on any remaining
On April 5, 1999, Trevor Walton went to defendant Dr.
Richard Dirkes, his primary care physician, complaining of
congestion and a sore throat for the past three weeks.
had puffy nasal membranes, no swollen lymph nodes, and his lungs
Defendant told Walton he probably either had
allergies or a viral infection.
Walton was instructed to call if
his symptoms persisted or increased in severity after three days.
Defendant did not order a complete blood count (“CBC”).
On May 3, 1999, Walton returned to defendant’s office
complaining of new symptoms, including blood-tinged mucus, pain
in his side, abdomen and shoulders, bumps on his head, and
difficulty breathing and sleeping.
Defendant was diagnosed with
chronic rhinitis with pharyngitis--inflammation of the throat.
Defendant did not order a CBC.
On May 8, 1999, Walton was taken to Loyola University
Hospital’s emergency department and treated by Dr. Margaret
Dr. Grano ordered a CBC, which revealed Walton had a
white blood cell count of over 540,000.
The normal range for
white blood cells in a healthy human adult is between 5,000 and
After Dr. Grano consulted with Dr. John Godwin, a
hematologist at Loyola, defendant was diagnosed with acute
lymphoblastic leukemia (“ALL”).
An emergency leukophoresis
treatment lowered Walton’s white blood cell count to around
Walton died of cardiac arrest related to ALL on May 9,
Leah Walton, administrator of Trevor Walton’s estate, filed
a medical malpractice lawsuit, alleging defendant negligently
failed to order a CBC on April 5, 1999, and May 3, 1999.
Following a jury trial, plaintiff was awarded $3,627,113 in
In his post-trial motion, defendant moved for judgment
notwithstanding the verdict, or, in the alternative, a new trial.
The trial court entered judgment notwithstanding the verdict
in defendant’s favor, finding:
“Here, plaintiff presented no testimony as to
what type of specialist should have been
consulted to review the CBC results nor was
there any testimony as to what that
specialist would have seen in the
hypothetical CBC results that would indicate
No medical expert testified how a CBC
interpreted by anyone would indicated that
decedent had ALL.
A lack of testimony
linking Dr. Dirkes’ failure to do a CBC with
expert testimony indicating how a diagnosis
of ALL could be made from a CBC taken on
April 5, 1999, or on May 3, 1999, creates a
gap in the evidence of proximate cause fatal
to plaintiff’s case.
Without the testimony
discussed above, Dr. Brown’s bare assertion
that Dr. Dirkes’ failure to do a CBC at
either office visit caused harm to Trevor
Walton is mere conjecture.
plaintiff failed to prove proximate
causation, and essential element of
plaintiff’s prima facie case, and judgment
notwithstanding the verdict is proper.”
I. Judgment Notwithstanding the Verdict
Plaintiff contends the trial court erred in entering a
judgment notwithstanding the verdict in defendant’s favor.
Specifically, plaintiff contends the expert testimony contained
in the record sufficiently supported the jury’s verdict.
Judgment non obstante veredicto, or judgment n.o.v., is
appropriate where “ ‘all the evidence, when viewed in its aspect
most favorable to the opponent, so overwhelmingly favors movant
that no contrary verdict based on that evidence could ever
Townsend v. University of Chicago Hospitals, 318 Ill.
App. 3d 406, 408, 741 N.E.2d 1055 (2001), quoting Pedrick v.
Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504
Judgment n.o.v. is appropriate if plaintiff fails to
prove an essential element of a negligence action, including
Townsend, 318 Ill. App. 3d at 408; Suttle v.
Lake Forest Hospital, 315 Ill. App. 3d 96, 102, 733 N.E.2d 726
Our review of an order granting judgment n.o.v. is de
Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill.
App. 3d 967, 972, 691 N.E.2d 1 (1997).
A plaintiff in a medical malpractice case must prove: “(1)
the standard of care against which the medical professional’s
conduct must be measured; (2) the defendant’s negligent failure
to comply with that standard; and (3) the defendant’s negligence
proximately caused the injuries for which the plaintiff seeks
Sunderman v. Agarwal, 322 Ill. App. 3d 900, 902, 750
N.E.2d 1280 (2001).
The central issue in this case turns on
whether plaintiff adequately established defendant’s allegedly
negligent failure to order a CBC was a proximate cause of
Proximate cause must be established by expert testimony to a
reasonable degree of medical certainty.
Susnis v. Radfar, 317
Ill. App. 3d 817, 826-27, 739 N.E.2d 960 (2000); Aguilera, 293
Ill. App. 3d at 975.
Any causal connection between treatment, or
a delay in treatment, and the claimed injury “must not be
contingent, speculative, or merely possible.”
App. 3d at 976.
Aguilera, 293 Ill.
While the plaintiff’s burden of proof remains
the same, our supreme court has recognized proximate cause may be
established by evidence that the defendant’s negligent conduct
“increased the risk of harm” to the patient or “lessened the
effectiveness” of the patient’s treatment.
Holton v. Memorial
Hospital, 176 Ill. 2d 95, 104-05, 679 N.E.2d 1202 (1997).
In Aguilera, we considered whether the plaintiff failed to
present any evidence of proximate cause in a wrongful death
medical malpractice action.
Aguilera visited an emergency room
with complaints of numbness on the left side of his body.
began suffering seizures shortly after being admitted to the
A CT scan revealed a massive cerebral hemorrhage.
Aguilera lapsed into a coma and died three days later.
the plaintiff, Aguilera’s wife, offered testimony from two expert
witnesses that the emergency room physician should have ordered
an immediate CT scan, given Aguilera’s condition.
Dr. Hamilton, the emergency medicine expert, testified the
delayed CT scan “definitely related” to Aguilera’s death.
Aguilera, 293 Ill. App. 3d at 969.
Dr. Hamilton admitted,
however, that even assuming Aguilera received a prompt CT scan he
would have deferred to a neurosurgeon to decide whether surgical
intervention was necessary.
The plaintiff’s neurology expert,
Dr. Vuckovich, testified an early CT scan was critical not only
to permit effective treatment of the patient, but also to
determine the precise location and size of the hemorrhage while
Dr. Vuckovich did not know, however, whether
surgical intervention would have been ordered had a prompt CT
scan been administered.
The trial court entered judgment
notwithstanding the verdict for the defendant.
Affirming the judgment n.o.v., we held:
“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.
Plaintiff failed to offer evidence to a reasonable degree of
medical certainty that the alleged negligent delay in
administering the CT scan lessened the effectiveness of the
medical treatment given to Aguilera.”
Aguilera, 293 Ill. App. 3d
No evidence supported the plaintiff’s experts’ opinion that
the negligent delay in administering the CT scan lessened the
effectiveness of treatment.
Aguilera, 293 Ill. App. 3d at 974.
We held “[w]hen there is no factual support for an expert’s
opinion, the conclusions alone do not create a question of fact.”
Aguilera, 293 Ill. App. 3d at 974.
In Townsend, the plaintiff contended an imaging study should
have been performed in the emergency room to diagnose a urinary
Dr. Leslie and Dr. Hancock, plaintiff’s
experts, both testified the defendant deviated from the standard
When Dr. Leslie was asked what the defendant would have
done if she had complied with the standard of care and
immediately ordered an imaging study, Dr. Leslie said “[s]he
would call another type of physician once she made the
On cross-examination, Dr. Leslie said an imaging
test would have increased Puckett’s chance of survival, even if
it may not have saved her life.
Dr. Hancock testified Puckett’s
chance of survival would approach zero without having the
She would have had a 40 to 60 percent
survival rate if the obstruction had been diagnosed and treated
in the emergency room.
On cross-examination, the defendant’s
attorney asked Dr. Hancock the following questions:
“Q: Now, it’s your opinion that had she
[the defendant] ordered this test, a [kidney
stone] might have been seen *** right?
A: It might have been seen at the
location of the stone of the ureter [found at
Q: You further testified that if it had
been identified, it would require immediate
Q: You’re not the type of doctor that
would provide that next intervention, are
A: No, that’s correct.
Q: What type of doctor would do that?
A: One of two types, a urologist or an
Q: Both of which are outside your area
of expertise, correct?
Considering Aguilera, we asked whether the record contained
any evidence to support the opinion of the plaintiff’s experts
that the negligent delays–-an imaging test or transferring
Puckett to the emergency room–-“ ‘lessened the effectiveness of
Townsend, 318 Ill. App. 3d at 412, quoting
Aguilera, 293 Ill. App. 3d at 974.
Because there was no expert
testimony that an earlier imaging test or an earlier transfer to
an intensive care unit would have led to surgical intervention or
other treatment that may have contributed to Puckett’s recovery,
we concluded the jury was left to speculate about proximate
Townsend, 318 Ill. App. 3d at 412.
Puckett’s chances of survival would go from 0% to 60% if “relief”
had been provided did not address the causation gap.
the jury’s verdict in favor of the plaintiff and remanded the
cause to the trial court with directions to enter judgment in
favor of the defendant.
Townsend, 318 Ill. App. 3d at 412.
Similarly, in Susnis v. Radfar, 317 Ill. App. 3d 817, 82729, 739 N.E.2d 960 (2000), the plaintiffs contended that had the
radiologist properly interpreted an x-ray, subsequent doctors
would have had the opportunity to treat the child’s enlarged
heart condition and possibly avoid or minimize her injuries.
review of the record established the plaintiffs’ experts offered
only an opinion on the radiologist’s deviations from the standard
of care, but no expert evidence was adduced to a reasonable
degree of medical certainty that the radiologist’s deviations
proximately caused the child’s injuries.
We affirmed the trial
court’s directed verdict in favor of the radiologist, holding the
mere possibility of a causal connection was not enough to sustain
the burden of proving proximate cause.
See also Wiedenbeck v.
Searle, 385 Ill. App. 3d 289, 299, 895 N.E.2d 1067 (2008)
(“Although both of plaintiff’s medical experts agreed Dr. Searle
deviated from the standard of care by failing to order a CT scan
or neurological consult while treating Wiedenbeck, we find no
expert evidence was offered to a reasonable degree of medical
certainty that Dr. Searle’s alleged deviation caused Wiedenbeck’s
injuries or lessened the effectiveness of her medical
In order to test the trial court’s judgment notwithstanding
the verdict order, we have extracted facts from the record that
tell the strongest story in support of the jury’s verdict.
not necessary for a single expert witness to establish the
plaintiff’s entire case.
Instead, it is only necessary that the
evidence and testimony, as a whole, convey to the jury sufficient
facts to enable them to form a judgment in the matter.
Chicago Union Traction Co. v. Lawrence, 211 Ill. 373, 375, 71
N.E. 1024 (1904).
Plaintiff did not allege defendant deviated from the
standard of care by failing to diagnose ALL.
alleged defendant deviated from the standard of care by not
performing a CBC on either April 5, 1999, or May 3, 1999.
Plaintiff alleged defendant’s failure to order a CBC on those
dates harmed Walton because a CBC would have led to the diagnosis
and treatment of ALL.
Dr. Finley Brown, a family medicine physician, testified
defendant deviated from the standard of care by failing to order
a CBC when he examined defendant on April 5 and May 3.
regard to the April 5 examination, Dr. Brown said:
“I believe Dr. Dirkes deviated from the
standard of care by not ordering a complete
blood count because, *** this patient had
been ill for three weeks, but he didn’t have
a fever, but he had symptoms like upper
respiratory infection which often is
accompanied by fever.
And because he did not
I believe –- and so I believe he deviated
from the standard of care by not drawing a
CBC and having it processed so he could see
–- so he could rule out other conditions.”
Dr. Brown testified a CBC done on April 5 “more likely than not”
would have been “abnormal.”
Dr. Brown said “[i]t would have
given a hint that something else was going on and would have led
to the diagnosis of acute lymphoblastic leukemia.”
With regard to the May 3 examination, Dr. Brown was asked
whether the “treatment” Dr. Dirkes rendered fell below the
standard of care for a reasonably well-trained and qualified
family care practitioner.
Dr. Brown said he believed it did.
When asked how so, he testified “the failure to do a CBC on
either the 5th and again on May 3, 1999 hurt Trevor Walton.”
Dr. Leon Dragon, plaintiff’s oncology expert, testified ALL
cannot be diagnosed without doing blood work.
explained: “So patients will present often with somewhat
nonspecific symptoms of fatigue, perhaps low-grade fever, not
And a blood count will be abnormal.”
the 50 or 60 ALL patients he treated during his career as an
oncologist were diagnosed when “[a] blood count was done that was
On cross-examination, Dr. Dragon explained: “[an ALL
diagnosis] is made by looking at the bone marrow in the
peripheral blood, along with some ancillary, very high-tech
studies to define what type of cell is there.
So you have to
look at the bone marrow and see that it is populated by these
When asked what type of treatment is available for ALL, Dr.
“Well, once the diagnosis is made, there are
some very specific chemotherapy treatments
that are given. *** Chemotherapy involves the
administration of various drugs that are
active against certain malignancies, and
different malignancies are treated with
different chemotherapy drugs. *** In adult
ALL, with very intensive chemotherapy
regimens *** the cure rates may approach 50
to 60 percent.
So this is a very treatable
malignancy with a substantial cure rate.”
Dr. Dragon testified that, given Walton’s white blood count
on May 8, 1999, of 540,000, he believed Walton would have had
abnormal blood counts for at least several months prior to his
presentation in May.
When asked to quantify to a reasonable
degree of medical certainty Walton’s chances of surviving ALL if
a blood count had been done on April 5, 1999, Dr. Dragon said:
“Well, I believe the blood count would have
been abnormal and would have clearly
documented the need for further studies, and
I believe his white count would have been
*** He would have fallen into the
group of patients that we consider to be
fairly standard-presenting patients with ALL.
*** So I believe in April, had he had a blood
count, that it would have been abnormal and
he would have been treated for ALL.
similar population of patients would be
expected to have a 40 percent cure rate.”
Dr. Dragon was also questioned regarding Walton’s chance of
survival had a blood count been done on May 3, 1999:
“Q. Now, can you quantify to a
reasonable degree of medical certainty what
Trevor Walton’s chances of surviving ALL were
if a blood count had been done on May 3rd,
A. Well, I –- I estimated his risk for
relapse would have been higher by May 3rd
because the number of leukemic cells would
have been much greater than in April.
I would have estimated a similar population
would have had a lower cure rate, perhaps 10
to 30 percent, but still would have been
treatable and potentially curable at that
Dr. Dragon, the time from May 4th to
May 9th is only five days.
How can a five-
day period allow enough time to save Trevor
Walton from death on May 9th, 1999?
A. Well, when he came in on May 9th or
the –- late on May 8th, I think, he was –how I would describe it –- in extremis;
meaning he was already minutes to a couple
hours from death.
And that really leaves
very little time to manage the underlying
Because so many systems are
failing, he had to immediately be intubated,
and it’s just impossible to adequately treat
somebody with such a complex disease in that
Five days earlier, he certainly
would have had a very high white count, but
they would have had time to remove some of
the white blood cells mechanically by a
process called leukopheresis, and they would
have had time to treat him.
He could have
been treated very quickly because the
diagnosis can be made very rapidly and
chemotherapy can be introduced very quickly.
And, in fact, I’ve treated patients like this
myself where, you know, one can turn this
around very rapidly.
But you have to have a
couple of days to be able to do this.
can’t do it in a couple of minutes.”
Dr. Dragon testified he believed Walton would not have died
on May 9 had he been diagnosed and started treatment immediately
following either the April 5 or May 3 office visit.
relapse, Dr. Dragon testified, defendant’s life would have been
prolonged for approximately two years.
Dr. Godwin, the hematologist who treated Walton at Loyola
Hospital, testified blood taken from a CBC test on April 5 would
have been abnormal.
Dr. Godwin testified a CBC conducted on May
3, 1999, “would be significantly abnormal and all –- certainly
show signs of leukemia.”
Dr. Godwin said Walton’s chances of
survival would have been greater had a diagnosis of ALL been made
on blood tests conducted on April 5 or May 3.
Dr. Steven Eisenstein, defendant’s family practitioner
expert, testified he believed an ALL diagnosis would “more likely
than not have been obtained” had defendant drawn blood on May 3.
However, Dr. Eisenstein testified defendant’s failure to draw
blood for a CBC on April 5, 1999, or May 3, 1999, was not a
violation of the applicable standard of care.
Dr. Richard Larson, defendant’s oncology expert, testified
it would have been speculative as to whether a lab report of
Walton’s blood drawn on April 5 would have detected signs of ALL.
When asked whether he had previously testified in his discovery
deposition that a lab report for blood drawn on May 3 would have
included signs of ALL, Dr. Larson said “there would have been an
abnormality detected in [Walton’s] blood” on May 3.
examination, Dr. Larson agreed part of the license for clinical
laboratories requires reporting lab results from blood work to
the doctor requesting the results within 24 hours if there are
panic or critical results.
In Wodziak v. Kash, 278 Ill. App. 3d 901, 663 N.E.2d 138
(1996), the plaintiff’s decedent went to a hospital emergency
room complaining of shortness of breath.
The defendant diagnosed
a respiratory stridor–-a blocked throat whistle–-and released
After losing consciousness two days later, the
decedent was taken to a different hospital where doctors
discovered a tracheal obstruction.
During the emergency surgery
that followed, the decedent suffered a stroke and developed
permanent brain damage.
Plaintiff alleged the defendant’s delay
in investigating the cause of the stridor postponed treatment and
caused decedent’s injury.
We affirmed a verdict for the plaintiff, noting the
plaintiff’s expert testified to a specific procedure–-throat
dilatation–-that was postponed by the negligently delayed
Wodziak, 278 Ill. App. 3d at 911-12.
That is, the
defendant’s negligent delay in investigating the cause of the
patient’s stridor lessened the effectiveness of a “definitive
More recently, in Johnson v. Loyola University Medical
Center, 384 Ill. App. 3d 115, 893 N.E.2d 267 (2008), we
considered whether the trial court improperly granted judgment
n.o.v. on the issue of proximate cause in a medical malpractice
After Johnson suffered a cardiopulmonary arrest, he was
admitted to the defendant’s cardiac care unit on June 1, 1995.
Johnson was transferred to a general medical floor on June 4,
without continuous telemetry or oxygen monitoring.
suffered another cardiac arrest on June 5.
but did not regain consciousness.
He was resuscitated
A neurological assessment
showed irreversible brain damage as a result of prolonged oxygen
The sole issue presented to the jury was whether
defendants negligently failed to continuously monitor Johnson’s
EKG and oxygen saturation.
We reversed the trial court’s judgment n.o.v.
We held the
plaintiff provided evidence that the failure to monitor Johnson
proximately caused his injuries.
Johnson, 384 Ill. App. 3d at
We noted the plaintiff’s expert specifically testified
“with adequate monitoring, changes in
Johnson’s heart rate, cardiac status, or
oxygen level would have caused earlier
intervention, ‘and I think that he would have
been treated for his impending cardiac arrest
in a much quicker time and, therefore,
wouldn’t have had the brain damage from the
cardiac arrest he had.’
However, by the time
staff had intervened, ‘at that point it took
so long to get the circulation back up that
he had a lack of oxygen to the brain and had
severe irreversible brain damage which
ultimately led to his death after that.’ ”
Johnson, 384 Ill. App. 3d at 272.
We noted similar expert testimony was held sufficient in Wodziak
and Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202
In Holton, the plaintiff became paralyzed as a result of the
defendants’ failure to timely diagnose and treat pressure on her
spinal cord caused by a fractured vertebra.
After the jury
returned a verdict in the plaintiff’s favor, the defendants
contended they were entitled to judgment n.o.v. because the
plaintiff failed to present expert testimony that an earlier call
to her physicians about her progressive weakness would have
prevented her paralysis.
Rejecting the defendants contention,
the supreme court held the plaintiff was not required to prove an
earlier call to her doctors would have resulted in a more
Holton, 176 Ill. 2d at 107-08.
The plaintiff’s experts testified that when a patient’s
partial paralysis is detected and treated early enough there is a
good probability of avoiding or minimizing paralysis, and that,
to a reasonable degree of medical certainty, the preferred
treatment for relieving pressure on the spinal cord caused by an
abscess or edema is decompression or drainage.
The supreme court
held that “[h]ad the doctors been given the opportunity to
properly diagnose [the plaintiff’s] condition based on accurate
and complete information, they would have had the opportunity to
treat her condition by ordering the appropriate treatment.”
Holton, 176 Ill. 2d at 108.
Because of the hospital’s negligent
failure to accurately and timely report the plaintiff’s
symptomology, the appropriate treatment was not even considered.
Holton, 176 Ill. 2d at 108.
Unlike in Aguilera, Townsend, and Susnis, the plaintiff in
this case offered evidence to a reasonable degree of medical
certainty that defendant’s negligent failure to order a CBC on
April 5, 1999, and May 3, 1999, resulted in a delayed diagnosis
of ALL and lessened the effectiveness of Walton’s medical
Plaintiff’s oncology expert, Dr. Dragon, did more
than simply say Walton’s chance of survival would go from 0% to
40% if treatment had been provided.
Instead, similar to Wodziak,
Johnson, and Holton, plaintiff’s oncology expert testified to
specific procedures–-leukopheresis and chemotherapy–-that were
delayed by defendant’s failure to order a CBC on April 5 and May
The strongest evidence of proximate cause in this case is
Dr. Dragon’s testimony regarding how Walton would have been
treated had defendant ordered a CBC during Walton’s May 3 office
Dr. Dragon testified that, given Walton’s white blood
count on May 8, 1999, of 540,000, he believed Walton would have
had abnormal blood counts for at least several months prior to
his presentation in May.
Dr. Dragon said that on May 3, five
days prior to Walton’s hospitalization, Walton “certainly would
have had a very high white count, but they would have had time to
remove some of the white blood cells mechanically by a process
called leukopheresis, and they would have had time to treat him.”
When Walton was diagnosed and treated on May 8, Dr. Dragon
explained, he was already “in extremis; meaning he was already
minutes to a couple hours from death.”
Dr. Dragon stressed
Walton “could have been treated very quickly” if a CBC had been
ordered on May 3 “because the diagnosis can be made very rapidly
and chemotherapy can be introduced very quickly.”
He noted, in
fact, that he had “treated patients like this myself where, you
know, one can turn this around very rapidly.”
Defendants’ experts, Dr. Eisenstein and Dr. Larson, agreed a
CBC would have detected an abnormality in Walton’s blood during
the May 3 office visit.
Dr. Eisenstein admitted on cross-
examination that an ALL diagnosis would “more likely than not
have been obtained” had defendant drawn blood on May 3.
Dr. Eisenstein asserted Dr. Dirkes did not violate the standard
of care by failing to order a CBC on April 5 or May 3, his
testimony was contradicted by Dr. Brown, plaintiff’s family
The credibility and weight of the conflicting
witnesses’ opinions on the proper standard of care was a jury
See Maple v. Gustafson, 151 Ill. 2d 445, 452, 603
N.E.2d 508 (1992) (“Unquestionably, it is the province of the
jury to resolve conflicts in the evidence, to pass upon the
credibility of the witnesses, and to decide what weight should be
given to the witnesses’ testimony.”)
Dr. Grano, the emergency room physician, and Dr. Godwin, the
hematologist, treated Walton at Loyola Hospital.
regarding how Walton was diagnosed with ALL.
Dr. Grano testified
she contacted Dr. Godwin “immediately” after a blood count
revealed a white blood cell count of 540,000.
testified Dr. Godwin:
“helped confirm that white count represented
in the setting of a young man his age with a
wide mediastinum on chest X-ray fit the
picture of an acute lymphocyctic leukemia,
and what treatment he would require, and
given the clinical presentation, that much of
what was occurring was due to white cells–*** –-and that they needed to be removed
Dr. Godwin testified regarding how he confirmed his initial
diagnosis of acute leukemia:
“My review of the peripheral blood smears
suggested a myeloid leukemia, AML.
I list here more than 50%,
60 to 80%, and I would have reviewed a smear that morning before c
knowing he was coding that morning, and so this note reflects my
having gone, looked at that smear for strain.
Dr. Godwin eventually concluded Trevor had ALL.
Dr. Grano and Dr. Godwin provided a sufficient causal
connection regarding how diagnosis and treatment would have
resulted from a CBC conducted by defendant.
Taken together, the
expert testimony presented at trial adequately supported the
The trial court erred in entering judgment
notwithstanding the verdict in defendant’s favor.
176 Ill. 2d at 109.
II. Motion for New Trial
Defendant contends he is entitled to a new trial due to
numerous errors that occurred during trial.
filed a motion for new trial in the trial court.
Plaintiff contends defendant forfeited review of his motion
for a new trial by failing to seek a conditional ruling on the
motion, citing Johnson v. Loyola University Medical Center, 384
Ill. App. 3d 115, 839 N.E.2d 267 (2008) (“We find, however, that
defendants waived these arguments when they failed to secure a
conditional ruling on their alternative motion for new trial, as
required by section 2-1202(f) of the Code of Civil Procedure (735
ILCS 5/2-1202(f) (West 2004)).”)
Here, the trial court found defendant was entitled to
judgment notwithstanding the verdict and said it would “only
address that issue.”
In light of the trial court’s specific
refusal to consider the motion for new trial, we see no reason to
We reverse the trial court’s order granting
judgment n.o.v. and remand the cause for a hearing on any
remaining post-trial issues.
Reversed and remanded.
HALL, and GARCIA, JJ., concur.
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
LEAH WALTON, Administrator of the Estate of
TREVOR P. WALTON, Deceased,
RICHARD V. DIRKES, M.D.,
Appellate Court of Illinois
First District, 1st Division
January 27, 2009
JUSTICE WOLFSON delivered the Opinion of the court:
HALL, and GARCIA, JJ., concur.
APPEAL from the
Circuit Court of
Cook County; the
Lower Court and Trial Judge(s) in form indicated in margin:
John Doe, of
Indicate if attorney represents APPELLANTS or APPELLEES and
include attorneys of counsel. Indicate the word NONE if
Appeal from the Circuit Court of Cook County.
The Hon. Deborah M. Dooling, Judge Presiding.
Smith and Smith,
For Appellant, LAW OFFICE OF JOHN F. KLEBBA, P.C., of Chicago.
(John F. Klebba, of Counsel); and LAW OFFICE OF STEVEN A.
DENNY, P.C., of Chicago. (Steven A. Denny, Trial Counsel).
(Joseph Brown, of
For Appellee, HINSHAW & CULBERTSON, LLP, of Chicago.
(Stephen R. Swofford, Kevin Joseph Burke, and Christine Olson
McTigue, of Counsel).
Also add attorneys for thirdparty appellants
(USE REVERSE SIDE IF NEEDED)