{ "id": 171763, "name": "CAROLYN MENGELSON, Plaintiff-Appellant, v. INGALLS HEALTH VENTURES, Defendant-Appellee", "name_abbreviation": "Mengelson v. Ingalls Health Ventures", "decision_date": "2001-05-22", "docket_number": "No. 1\u201400\u20143353", "first_page": "69", "last_page": "76", "citations": [ { "type": "official", "cite": "323 Ill. App. 3d 69" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "year": 1967, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "688 N.E.2d 130", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "179 Ill. 2d 80", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801365 ], "year": 1997, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0080-01" ] }, { "cite": "679 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "176 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544914 ], "year": 1997, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0095-01" ] }, { "cite": "229 N.E.2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "85 Ill. App. 2d 129", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2551648 ], "year": 1967, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/85/0129-01" ] }, { "cite": "720 N.E.2d 1068", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "188 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536099 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "257-58" }, { "page": "258" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0252-01" ] }, { "cite": "645 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365945 ], "year": 1993, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0745-01" ] }, { "cite": "733 N.E.2d 726", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980661 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "103" }, { "page": "98" }, { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0096-01" ] }, { "cite": "466 N.E.2d 1085", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 1087", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633667 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "1092" }, { "page": "1092" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/1087-01" ] }, { "cite": "457 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "98 Ill. 2d 391", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3122451 ], "year": 1983, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0391-01" ] }, { "cite": "739 N.E.2d 960", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 817", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5139563 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "210" }, { "page": "210" }, { "page": "210" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0204-01" ] } ], "analysis": { "cardinality": 837, "char_count": 16962, "ocr_confidence": 0.783, "pagerank": { "raw": 8.559245472571879e-08, "percentile": 0.48823136020671476 }, "sha256": "1299bcabffa169a6afb5db3f631675bc4dde7d473bdf55072a489e7cfcc80132", "simhash": "1:35212ef6eb0f1c07", "word_count": 2792 }, "last_updated": "2023-07-14T16:00:03.625992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CAROLYN MENGELSON, Plaintiff-Appellant, v. INGALLS HEALTH VENTURES, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court: Plaintiff-appellant, Carolyn Mengelson, filed suit against defendant-appellee, Ingalls Health Ventures, alleging that defendant was negligent for failure to hire a competent and skilled phlebotomist for drawing blood and that as a direct and proximate result of the negligent acts, the plaintiff suffered injuries. At the close of plaintiffs case in chief, Ingalls Health Ventures moved for a directed verdict. The motion for directed verdict was granted. Plaintiff appeals from the order granting the motion for directed verdict. The major issue upon appeal is whether the trial court erred in granting defendant\u2019s motion for directed verdict.\nWe affirm.\nBACKGROUND\nOn February 23, 1993, plaintiff visited Ingalls Family Health Center (Ingalls) in Calumet City, Illinois, for an annual physical examination required by her employer. That physical included a routine blood draw.\nPlaintiff testified at trial that during the physical examination, Theresa Chavez, a medical assistant for Ingalls, came into the room in which plaintiff was lying down to draw her blood. Chavez placed a tourniquet on plaintiffs left arm and supported plaintiffs elbow with her hand. Plaintiff testified that Chavez looked for a vein in her left arm but did not palpate for a vein before she inserted the needle. Chavez asked plaintiff whether it had always been difficult to find a vein on her arm. Plaintiff answered in the negative and asked Chavez to use her right arm.\nDespite plaintiff\u2019s request, Chavez inserted the needle into plaintiffs left arm, but was unsuccessful in drawing blood on the first attempt. Plaintiff again asked Chavez to use her right arm for the blood draw. Plaintiff testified that Chavez then \u201cbacked the needle out and then injected it deeper into my skin and started poking and fanning around with the needle under my skin in a fanning-out type motion.\u201d Chavez still did not obtain blood from plaintiff. Plaintiff asked Chavez to switch to the right arm for the third time. Plaintiff stated that by Chavez\u2019s third attempt to draw blood from the left arm, she began to feel \u201cnauseated because of the procedure.\u201d Plaintiff testified that as blood finally began to trickle into the vial, she felt a \u201csharp, stabbing pain\u201d in her inner arm. Plaintiff stated that she told Chavez that she was in \u201cexcruciating\u201d pain and asked her to stop, but Chavez said \u201c \u2018No, I think I\u2019m getting it now.\u2019 \u201d Chavez then removed the vial attached to the needle and attached a second vial. Plaintiff, again, asked her to stop but Chavez told her, \u201c \u2018If you can just hold still, it will only be a few more seconds.\u2019 \u201d\nWhen Chavez finally withdrew the needle, plaintiff still felt \u201cexcruciating\u201d pain in her left arm. Plaintiff remained at Ingalls for about 45 to 60 minutes after the blood draw and was seen by a doctor. She told the doctor about her pain and the doctor told her that her arm was in a \u201cspasm\u201d but the medical assistant could not have gone deep enough to hit a nerve.\nPlaintiff stated that she was nauseous the day following the blood draw and left work early due to the pain. Plaintiff called Ingalls at 6 p.m. on the evening of February 24, 1993, and notified it of her discomfort. She was advised to seek emergency treatment at an emergency clinic near her home. The emergency clinic gave the plaintiff pain medication and advised her to go to a hospital. Plaintiffs husband drove her to Edwards Hospital. The hospital gave plaintiff some additional pain medication and, because her injury was not considered an emergency, she made an appointment with a neurologist for the following morning.\nPlaintiff testified that for weeks after the blood draw at Ingalls, she felt a \u201cburning sensation under the skin like there\u2019s just like fire breathing under the skin\u201d of her left arm. Plaintiff also complained of sleeplessness. At one point, plaintiff wore a sling on her left arm.\nOn May 19, 1993, plaintiff was in an automobile accident. After the collision, she felt a burning in the middle of her neck. Plaintiff stated that she experienced \u201ccontinued burning, aching, the same sort of sensations\u201d in her left arm as previously. Plaintiff participated in occupational therapy for her left hand and arms and physical therapy for her neck and shoulders.\nBy November 1993, plaintiffs arm began \u201cchanging colors\u201d and became more painful. Nerve blocking treatments offered some temporary relief. Eventually, plaintiff was transferred from her employment position because it required travel and carrying items in excess of her doctor\u2019s recommendation.\nDr. Timothy Lubenow testified by way of evidence deposition. He stated that he saw plaintiff in November 1993. In light of the physical exam he conducted and plaintiff\u2019s medical history, Dr. Lubenow diagnosed plaintiff as having reflex sympathetic dystrophy (RSD). He testified, \u201cI believe that her condition did result from that blood draw.\u201d Dr. Lubenow further testified:\n\u201cWell, the basis of my opinion would be that from a time frame standpoint, it all fits rather well. We know she developed her left arm pain following the left arm draw. It\u2019s known that she was seen in the emergency room for pain just a couple of days after that procedure. Dr. LeMarre in his initial referral indicated that she had that and that was her history, and that was the reason that he had her get an EMG test to test for the muscle function of that arm. And so all of those things served to form the reasons for I believe her condition resultant from that blood draw.\u201d\nDr. Hooshang Hooshmand\u2019s videotaped deposition was played before the jury. Dr. Hooshmand saw plaintiff in August 1996. Plaintiffs records revealed that in July 1996 she was diagnosed with a mild stage of RSD in her arm and neck. Dr. Hooshmand diagnosed plaintiff as having \u201cRSD due to insertion of needle into the vein and that had resulted in the series of unexpected complications.\u201d\nOn cross-examination, defense counsel asked Dr. Hooshmand: \u201cAnother example that I think you have used [in the past] to explain this concept [of venipuncture RSD] is like winning the reverse lotto; is that correct? *** About a l-in-6 million chance of getting this disease process?\u201d Dr. Hooshmand responded, \u201cThat\u2019s right.\u201d Defense counsel also asked Dr. Hooshmand, \u201cDoctor, do you have an opinion in this case whether the venipuncture was performed negligently?\u201d Dr. Hooshmand answered, \u201cI cannot have an opinion because I was not there and I don\u2019t have any proof that there was negligence.\u201d Defense counsel later asked, \u201cIt\u2019s your opinion in this case that the plaintiff was simply a very unfortunate lady who had a very tragic rare occurrence occur to her?\u201d Dr. Hooshmand, responded, \u201cThat\u2019s correct, sir.\u201d\nRegistered nurse Sabine Niedzwiecki testified as an expert regarding the standard of care for blood draw procedures. She stated that one should ask the patient his or her arm preference, make sure that the vein was palpable or visible and ensure that it had \u201cgood bounce.\u201d The drawer should then attempt to draw the blood, and if the patient complains of any type of pain, the drawer should immediately stop. Relying on the account of events in plaintiffs deposition and Dr. Hooshmand\u2019s deposition, Nurse Niedzwiecki stated:\n\u201cI feel [the medical assistant] did not follow the standard of care. *** It was evident she did not locate a good vein. To try to stick somebody just for the purpose of sticking is not part of the standard procedure. Also the fanning and the redigging and the going back and forth is not appropriate according to the standard of care to attempt a blood specimen. And I guess thirdly once a patient tells you to stop it hurts they\u2019re in charge, they\u2019re the boss, you have to\u2014you have to listen to them, you have to stop and she did not stop.\u201d\nMedical assistant Theresa Chavez testified during the plaintiffs case in chief that, in the 13 years that she worked for Ingalls, she conducted approximately four to five blood draws daily. She stated that she would never insert a needle into a patient\u2019s arm if she could not feel a vein. She stated that while there is no set limit, it was her practice to attempt to find a vein \u201cup to two times max on each arm.\u201d Chavez testified that the plaintiff did not complain of any pain during the blood .draw and, if she had, that would have been something that she would have recorded on plaintiffs medical chart. Chavez recalled that plaintiff said \u201couch\u201d upon removal of the needle but did not otherwise complain.\nAt the close of plaintiffs evidence, Ingalls moved for a directed verdict on the ground that plaintiff failed to present any expert testimony establishing that the medical assistant\u2019s alleged breach of the standard of care proximately caused plaintiffs injury.\nAt the hearing on the motion for a directed verdict, the trial court judge stated:\n\u201cAs we\u2019ve discussed yesterday, there\u2019s no question in this case that the nurse expert has established that the vein puncture was negligently performed. *** Secondly, there\u2019s no question here that both doctors established that the venipuncture caused the RSD. *** The pivotal question is is it the proximate cause as required for the Plaintiffs case to stand. Merely a cause, in fact, is not sufficient.\n* * *\nAnd here the record speaks for itself and there is absolutely no expert testimony here connecting the negligently conducted venipuncture with the resulting RSD.\u201d\nRelying on Saxton v. Toole, 240 Ill. App. 3d 204, 608 N.E.2d 233 (1992), the trial judge granted the defendant\u2019s motion for directed verdict on September 1, 2000. Plaintiff now appeals.\nANALYSIS\nStandard of Review\nel The appellate court reviews the grant of a directed verdict de nova. Susnis v. Radfar, 317 Ill. App. 3d 817, 825, 739 N.E.2d 960 (2000). A directed verdict will be affirmed where the evidence, viewed in the light most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on that evidence could ever stand. Mort v. Walter, 98 Ill. 2d 391, 396, 457 N.E.2d 18 (1983). A directed verdict is appropriate where the plaintiff has not established a prima facie case. Saxton, 240 Ill. App. 3d at 210.\nI\nPlaintiff contends that she established that defendant\u2019s negligence was the proximate cause of her injury. Upon appeal, plaintiff asserts that the injury would not have occurred if the needle had not been inserted into her left arm. Defendant, on the other hand, contends that the plaintiff has not shown that any purported act of negligence caused her injury. Defendant further contends that plaintiff\u2019s own experts negated any contention that her RSD was a likely consequence of the medical assistant\u2019s conduct.\n\u20222 In order to prove a case of negligence against a medical professional, the plaintiff must establish the following: (1) proper standard of care against which the professional\u2019s conduct must be measured; (2) negligent failure to comply with the standard; and (3) the injury had as one of its proximate causes the negligence of the professional. Saxton, 240 Ill. App. 3d at 210. The plaintiff bears the burden of establishing each element. Saxton, 240 Ill. App. 3d at 210.\n\u20223 A plaintiff sustains her burden by proving, generally through expert testimony, that defendant\u2019s breach of the applicable standard of care is more probably than not the cause of plaintiffs injury. Newell v. Corres, 125 Ill. App. 3d 1087, 1092, 466 N.E.2d 1085 (1984). The weight to be given to medical expert testimony is for the trier of fact to determine. Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 103, 733 N.E.2d 726 (2000). In the absence of expert testimony that an act by the defendant could have, within a reasonable degree of medical certainty, caused the plaintiffs injuries, it would be impossible for a jury verdict in plaintiffs favor to stand, and a directed verdict would be appropriate. Saxton, 240 Ill. App. 3d at 210.\nIn the instant case, plaintiff presented testimony from nurse Niedzwiecki which provided the standard of care for drawing blood. Niedzwiecki also testified that she considered the blood draw performed on plaintiff to have been a breach of that standard of care. The question upon appeal is whether plaintiff demonstrated that the blood draw was negligently performed and whether that negligence was the proximate cause of her injury.\n\u20224 Proximate cause is that cause which produces an injury through a natural and continuous sequence of events unbroken by any effective intervening cause. Block v. Lohan Associates, Inc., 269 Ill. App. 3d 745, 756, 645 N.E.2d 207 (1993). Proximate cause is made up of two elements, cause in fact and legal cause. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58, 720 N.E.2d 1068 (1999). Cause in fact exists where there is a reasonable certainty that a defendant\u2019s acts caused the injury or damage. First Springfield, 188 Ill. 2d at 258. Legal cause, by contrast, is essentially a question of foreseeability. First Springfield, 188 Ill. 2d at 258. Proximate cause is not established, however, where the causal connection is \u201c \u2018contingent, speculative or merely possible.\u2019 \u201d Newell, 125 Ill. App. 3d at 1092, quoting Manion v. Brant Oil Co., 85 Ill. App. 2d 129, 136, 229 N.E.2d 171 (1967).\n\u20225 Plaintiffs argument upon appeal fails because while there is testimony that the medical assistant\u2019s actions breached the standard of care, there is no expert testimony that the breach of the standard of care was the cause of her injury. Plaintiff failed to establish that the violation of the standard of care regarding the blood draw in her left arm was the legal cause of the BSD. In fact, Dr. Hooshmand stated that the possibility of contracting BSD from a blood draw was a 1-in-6-million chance. Assuming plaintiffs recount of the blood draw is true, there has been no evidence presented that the injury was a foreseeable result of the medical assistant\u2019s actions. As the trial court correctly ruled, it is essential that plaintiff present expert testimony that establishes that the medical assistant\u2019s actions in drawing the blood were negligent and that the negligence caused this injury.\nWhile relying on Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 733 N.E.2d 726 (2000), plaintiff also asserts that the trial court improperly invaded the jury\u2019s role in determining proximate cause. It is well established that issues involving proximate cause are fact specific and therefore uniquely for the jury\u2019s determination (Holton v. Memorial Hospital, 176 Ill. 2d 95, 107, 679 N.E.2d 1202 (1997)), unless there is no material issue regarding the matter or where only one conclusion is clearly evident (Williams v. University of Chicago Hospitals, 179 Ill. 2d 80, 84, 688 N.E.2d 130 (1997)). Plaintiff asserts that the breach of the standard of care by the medical assistant, which was testified to by an expert nurse witness in plaintiff\u2019s case in chief, raises questions for the jury to decide. We disagree.\nIn Suttle, one issue involved the velamentous insertion of the umbilical cord into the placenta inside the plaintiff, Ms. Suttle, and injuries suffered by her newborn child. The defendant contended that the plaintiff failed to prove proximate cause. Suttle, 315 Ill. App. 3d at 98. A treating physician testified that his treatment would have been the same regardless of whether he was aware of the velamentous insertion. However, there was also testimony that the treating physician had diagnosed Ms. Suttle\u2019s newborn child as suffering from respiratory distress syndrome, rather than hypovolemic shock, because he was unaware of Ms. Suttle\u2019s velamentous insertion. In Suttle, the Illinois Appellate Court held that there remained a factual issue as to what the treating physician would have done had he known the condition of the placenta. Suttle, 315 Ill. App. 3d at 104-05.\nIn the instant case, the issue is whether, as a matter of law, plaintiff has established that her injuries were proximately caused by the negligence of defendant\u2019s phlebotomist, Theresa Chavez. In our view, plaintiff has not met that burden. No medical testimony has been adduced to establish to a reasonable degree of medical certainty that the RSD or \u201ccomplex regional pain syndrome\u201d that plaintiff suffers was the result of the negligence of the medical assistant\u2019s actions. See Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967).\nFor the foregoing reasons, the trial court\u2019s grant of the directed verdict in favor of defendant is affirmed.\nAffirmed.\nCAHILL, EJ., and McBRIDE, J., concur.", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of Chicago (Martin J. Lucas, of counsel), for appellant.", "Anderson, Bennett & Partners, of Chicago (Chad M. Castro and Diane I. Jennings, of counsel), for appellee." ], "corrections": "", "head_matter": "CAROLYN MENGELSON, Plaintiff-Appellant, v. INGALLS HEALTH VENTURES, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1\u201400\u20143353\nOpinion filed May 22, 2001.\nAnesi, Ozmon, Rodin, Novak & Kohen, Ltd., of Chicago (Martin J. Lucas, of counsel), for appellant.\nAnderson, Bennett & Partners, of Chicago (Chad M. Castro and Diane I. Jennings, of counsel), for appellee." }, "file_name": "0069-01", "first_page_order": 87, "last_page_order": 94 }