Walton v. Dirkes

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Download PDF FIRST DIVISION January 27, 2009 No. 1-08-0461 LEAH WALTON, Administrator of the Estate of TREVOR P. WALTON, Deceased, Plaintiff-Appellant, v. RICHARD V. DIRKES, M.D., Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. Honorable Deborah M. Dooling, Judge Presiding. 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 doctorâ s negligent failure to order a certain blood test and the death of Trevor Walton. The jury thought so, but the trial judge entered a judgment notwithstanding the juryâ s verdict. We reverse the trial judgeâ s decision and remand this cause for a hearing on any remaining post-trial issues. FACTS 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. Walton had puffy nasal membranes, no swollen lymph nodes, and his lungs were clear. Defendant told Walton he probably either had 1-08-0461 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 (â CBCâ ). On May 3, 1999, Walton returned to defendantâ 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 Hospitalâ s emergency department and treated by Dr. Margaret Grano. 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 10,000. After Dr. Grano consulted with Dr. John Godwin, a hematologist at Loyola, defendant was diagnosed with acute lymphoblastic leukemia (â ALLâ ). An emergency leukophoresis treatment lowered Waltonâ s white blood cell count to around 80,000. Walton died of cardiac arrest related to ALL on May 9, 1999. Leah Walton, administrator of Trevor Waltonâ s estate, filed a medical malpractice lawsuit, alleging defendant negligently failed to order a CBC on April 5, 1999, and May 3, 1999. -2- 1-08-0461 Following a jury trial, plaintiff was awarded $3,627,113 in damages. 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 defendantâ s favor, finding: â 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 ALL. No medical expert testified how a CBC interpreted by anyone would indicated that decedent had ALL. A lack of testimony linking Dr. Dirkesâ 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 plaintiffâ s case. Without the testimony discussed above, Dr. Brownâ s bare assertion that Dr. Dirkesâ failure to do a CBC at either office visit caused harm to Trevor -3- 1-08-0461 Walton is mere conjecture. Therefore, plaintiff failed to prove proximate causation, and essential element of plaintiffâ s prima facie case, and judgment notwithstanding the verdict is proper.â DECISION I. Judgment Notwithstanding the Verdict Plaintiff contends the trial court erred in entering a judgment notwithstanding the verdict in defendantâ s favor. Specifically, plaintiff contends the expert testimony contained in the record sufficiently supported the juryâ s verdict. Judgment non obstante veredicto, or judgment n.o.v., is appropriate where â â 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 stand.â â 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 (1967). Judgment n.o.v. is appropriate if plaintiff fails to prove an essential element of a negligence action, including proximate cause. Townsend, 318 Ill. App. 3d at 408; Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 102, 733 N.E.2d 726 (2000). Our review of an order granting judgment n.o.v. is de -4- 1-08-0461 novo. 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: â (1) the standard of care against which the medical professionalâ s conduct must be measured; (2) the defendantâ s negligent failure to comply with that standard; and (3) the defendantâ s negligence proximately caused the injuries for which the plaintiff seeks redress.â 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 defendantâ s allegedly negligent failure to order a CBC was a proximate cause of Waltonâ s injuries. 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 â must not be contingent, speculative, or merely possible.â App. 3d at 976. Aguilera, 293 Ill. While the plaintiffâ s burden of proof remains the same, our supreme court has recognized proximate cause may be established by evidence that the defendantâ s negligent conduct â increased the risk of harmâ to the patient or â lessened the effectivenessâ of the patientâ s treatment. -5- Holton v. Memorial 1-08-0461 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. He began suffering seizures shortly after being admitted to the hospital. A CT scan revealed a massive cerebral hemorrhage. Aguilera lapsed into a coma and died three days later. At trial the plaintiff, Aguileraâ s wife, offered testimony from two expert witnesses that the emergency room physician should have ordered an immediate CT scan, given Aguileraâ s condition. Dr. Hamilton, the emergency medicine expert, testified the delayed CT scan â definitely relatedâ to Aguileraâ 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 plaintiffâ 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 still treatable. 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 -6- 1-08-0461 notwithstanding the verdict for the defendant. Affirming the judgment n.o.v., we held: â 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 decedentâ s recovery creates a gap in the evidence of proximate cause fatal to plaintiffâ 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.â Aguilera, 293 Ill. App. 3d at 975. No evidence supported the plaintiffâ s expertsâ opinion that the negligent delay in administering the CT scan lessened the effectiveness of treatment. Aguilera, 293 Ill. App. 3d at 974. We held â [w]hen there is no factual support for an expertâ s opinion, the conclusions alone do not create a question of fact.â 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 tract obstruction. Dr. Leslie and Dr. Hancock, plaintiffâ s experts, both testified the defendant deviated from the standard -7- 1-08-0461 of care. 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 â [s]he would call another type of physician once she made the diagnosis.â On cross-examination, Dr. Leslie said an imaging test would have increased Puckettâ s chance of survival, even if it may not have saved her life. Dr. Hancock testified Puckettâ s chance of survival would approach zero without having the obstruction removed. 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 defendantâ s attorney asked Dr. Hancock the following questions: â Q: Now, itâ 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 Puckettâ s autopsy]. Q: You further testified that if it had been identified, it would require immediate attention, correct? A: Yes. Q: Youâ re not the type of doctor that -8- 1-08-0461 would provide that next intervention, are you? A: No, thatâ s correct. Q: What type of doctor would do that? A: One of two types, a urologist or an interventional radiologist. Q: Both of which are outside your area of expertise, correct? A: Yes.â Considering Aguilera, we asked whether the record contained any evidence to support the opinion of the plaintiffâ s experts that the negligent delaysâ -an imaging test or transferring Puckett to the emergency roomâ -â â lessened the effectiveness of treatment?â â 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 Puckettâ s recovery, we concluded the jury was left to speculate about proximate cause. Townsend, 318 Ill. App. 3d at 412. Simply saying Puckettâ s chances of survival would go from 0% to 60% if â reliefâ had been provided did not address the causation gap. We vacated the juryâ s verdict in favor of the plaintiff and remanded the -9- 1-08-0461 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 childâ s enlarged heart condition and possibly avoid or minimize her injuries. A review of the record established the plaintiffsâ experts offered only an opinion on the radiologistâ s deviations from the standard of care, but no expert evidence was adduced to a reasonable degree of medical certainty that the radiologistâ s deviations proximately caused the childâ s injuries. We affirmed the trial courtâ 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) (â Although both of plaintiffâ 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. Searleâ s alleged deviation caused Wiedenbeckâ s injuries or lessened the effectiveness of her medical treatment.â ) -10- 1-08-0461 In order to test the trial courtâ s judgment notwithstanding the verdict order, we have extracted facts from the record that tell the strongest story in support of the juryâ s verdict. It is not necessary for a single expert witness to establish the plaintiffâ 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. See 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. Instead, plaintiff alleged defendant deviated from the standard of care by not performing a CBC on either April 5, 1999, or May 3, 1999. Plaintiff alleged defendantâ 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: â I believe Dr. Dirkes deviated from the standard of care by not ordering a complete blood count because, *** this patient had -11- With 1-08-0461 been ill for three weeks, but he didnâ 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 â - and so I believe he deviated from the standard of care by not drawing a CBC and having it processed so he could see â - so he could rule out other conditions.â Dr. Brown testified a CBC done on April 5 â more likely than notâ would have been â abnormal.â Dr. Brown said â [i]t would have given a hint that something else was going on and would have led to the diagnosis of acute lymphoblastic leukemia.â With regard to the May 3 examination, Dr. Brown was asked whether the â treatmentâ 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 â the failure to do a CBC on either the 5th and again on May 3, 1999 hurt Trevor Walton.â Dr. Leon Dragon, plaintiffâ s oncology expert, testified ALL cannot be diagnosed without doing blood work. Dr. Dragon explained: â So patients will present often with somewhat nonspecific symptoms of fatigue, perhaps low-grade fever, not feeling well. And a blood count will be abnormal.â -12- He testified 1-08-0461 the 50 or 60 ALL patients he treated during his career as an oncologist were diagnosed when â [a] blood count was done that was abnormal.â On cross-examination, Dr. Dragon explained: â [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 immature cells.â When asked what type of treatment is available for ALL, Dr. Dragon testified: â 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.â Dr. Dragon testified that, given Waltonâ s white blood count on May 8, 1999, of 540,000, he believed Walton would have had -13- 1-08-0461 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 Waltonâ s chances of surviving ALL if a blood count had been done on April 5, 1999, Dr. Dragon said: â 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 elevated. *** 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. Any similar population of patients would be expected to have a 40 percent cure rate.â Dr. Dragon was also questioned regarding Waltonâ s chance of survival had a blood count been done on May 3, 1999: â Q. Now, can you quantify to a reasonable degree of medical certainty what Trevor Waltonâ s chances of surviving ALL were if a blood count had been done on May 3rd, 1999? -14- 1-08-0461 A. Well, I â - 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. *** So 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 point. Q. 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 â - late on May 8th, I think, he was â how I would describe it â - in extremis; meaning he was already minutes to a couple hours from death. And that really leaves very little time to manage the underlying condition. Because so many systems are failing, he had to immediately be intubated, and itâ s just impossible to adequately treat somebody with such a complex disease in that -15- 1-08-0461 time frame. 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, Iâ 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. You canâ t do it in a couple of minutes.â 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. Even with relapse, Dr. Dragon testified, defendantâ 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, â would be significantly abnormal and all â - certainly -16- 1-08-0461 show signs of leukemia.â Dr. Godwin said Waltonâ 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, defendantâ s family practitioner expert, testified he believed an ALL diagnosis would â more likely than not have been obtainedâ had defendant drawn blood on May 3. However, Dr. Eisenstein testified defendantâ 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, defendantâ s oncology expert, testified it would have been speculative as to whether a lab report of Waltonâ 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 â there would have been an abnormality detected in [Waltonâ s] bloodâ on May 3. On cross- 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 plaintiffâ s decedent went to a hospital emergency room complaining of shortness of breath. -17- The defendant diagnosed 1-08-0461 a respiratory stridorâ -a blocked throat whistleâ -and released decedent. 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 defendantâ s delay in investigating the cause of the stridor postponed treatment and caused decedentâ s injury. We affirmed a verdict for the plaintiff, noting the plaintiffâ s expert testified to a specific procedureâ -throat dilatationâ -that was postponed by the negligently delayed diagnosis. Wodziak, 278 Ill. App. 3d at 911-12. That is, the defendantâ s negligent delay in investigating the cause of the patientâ s stridor lessened the effectiveness of a â definitive treatment.â 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 action. After Johnson suffered a cardiopulmonary arrest, he was admitted to the defendantâ 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. -18- Johnson 1-08-0461 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 deprivation. The sole issue presented to the jury was whether defendants negligently failed to continuously monitor Johnsonâ s EKG and oxygen saturation. We reversed the trial courtâ s judgment n.o.v. We held the plaintiff provided evidence that the failure to monitor Johnson proximately caused his injuries. 272. Johnson, 384 Ill. App. 3d at We noted the plaintiffâ s expert specifically testified that: â with adequate monitoring, changes in Johnsonâ s heart rate, cardiac status, or oxygen level would have caused earlier intervention, â and I think that he would have been treated for his impending cardiac arrest in a much quicker time and, therefore, wouldnâ t have had the brain damage from the cardiac arrest he had.â However, by the time staff had intervened, â 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 -19- 1-08-0461 ultimately led to his death after that.â â 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 (1997). In Holton, the plaintiff became paralyzed as a result of the defendantsâ failure to timely diagnose and treat pressure on her spinal cord caused by a fractured vertebra. After the jury returned a verdict in the plaintiffâ 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 favorable outcome. Holton, 176 Ill. 2d at 107-08. The plaintiffâ s experts testified that when a patientâ 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 â [h]ad the doctors been given the opportunity to -20- 1-08-0461 properly diagnose [the plaintiffâ s] condition based on accurate and complete information, they would have had the opportunity to treat her condition by ordering the appropriate treatment.â Holton, 176 Ill. 2d at 108. Because of the hospitalâ s negligent failure to accurately and timely report the plaintiffâ 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 defendantâ 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 Waltonâ s medical treatment. Plaintiffâ s oncology expert, Dr. Dragon, did more than simply say Waltonâ s chance of survival would go from 0% to 40% if treatment had been provided. Instead, similar to Wodziak, Johnson, and Holton, plaintiffâ s oncology expert testified to specific proceduresâ -leukopheresis and chemotherapyâ -that were delayed by defendantâ s failure to order a CBC on April 5 and May 3. The strongest evidence of proximate cause in this case is Dr. Dragonâ s testimony regarding how Walton would have been treated had defendant ordered a CBC during Waltonâ s May 3 office visit. Dr. Dragon testified that, given Waltonâ s white blood -21- 1-08-0461 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 Waltonâ s hospitalization, Walton â 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.â When Walton was diagnosed and treated on May 8, Dr. Dragon explained, he was already â in extremis; meaning he was already minutes to a couple hours from death.â Dr. Dragon stressed Walton â could have been treated very quicklyâ if a CBC had been ordered on May 3 â because the diagnosis can be made very rapidly and chemotherapy can be introduced very quickly.â He noted, in fact, that he had â treated patients like this myself where, you know, one can turn this around very rapidly.â Defendantsâ experts, Dr. Eisenstein and Dr. Larson, agreed a CBC would have detected an abnormality in Waltonâ s blood during the May 3 office visit. Dr. Eisenstein admitted on cross- examination that an ALL diagnosis would â more likely than not have been obtainedâ had defendant drawn blood on May 3. Although 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, plaintiffâ s family -22- 1-08-0461 physician expert. The credibility and weight of the conflicting witnessesâ opinions on the proper standard of care was a jury question. See Maple v. Gustafson, 151 Ill. 2d 445, 452, 603 N.E.2d 508 (1992) (â 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 witnessesâ testimony.â ) Dr. Grano, the emergency room physician, and Dr. Godwin, the hematologist, treated Walton at Loyola Hospital. regarding how Walton was diagnosed with ALL. Each testified Dr. Grano testified she contacted Dr. Godwin â immediatelyâ after a blood count revealed a white blood cell count of 540,000. Dr. Grano testified Dr. Godwin: â 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 cellsâ *** â -and that they needed to be removed urgently.â Dr. Godwin testified regarding how he confirmed his initial -23- 1-08-0461 diagnosis of acute leukemia: â My review of the peripheral blood smears suggested a myeloid leukemia, AML. numerous blasts. There are 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 juryâ s verdict. The trial court erred in entering judgment notwithstanding the verdict in defendantâ s favor. See Holton, 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. Defendant properly 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) (â We find, however, that -24- 1-08-0461 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)).â ) Here, the trial court found defendant was entitled to judgment notwithstanding the verdict and said it would â only address that issue.â In light of the trial courtâ s specific refusal to consider the motion for new trial, we see no reason to apply forfeiture. We reverse the trial courtâ 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. -25- 1-08-0461 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each Case) Please use following form: LEAH WALTON, Administrator of the Estate of TREVOR P. WALTON, Deceased, Plaintiff-Appellant, Complete TITLE of Case v. RICHARD V. DIRKES, M.D., Defendant-Appellee. Docket Nos. COURT Opinion Filed JUSTICES No. 1-08-0461 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 Hon.___________, Judge Presiding. Lower Court and Trial Judge(s) in form indicated in margin: For APPELLANTS, John Doe, of Chicago. Indicate if attorney represents APPELLANTS or APPELLEES and include attorneys of counsel. Indicate the word NONE if not represented. Appeal from the Circuit Court of Cook County. The Hon. Deborah M. Dooling, Judge Presiding. For APPELLEES, Smith and Smith, of Chicago. 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 counsel). 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 and/or appellees. (USE REVERSE SIDE IF NEEDED) -26-