{ "id": 4283550, "name": "LEAH WALTON, Adm'r of the Estate of Trevor E Walton, Deceased, Plaintiff-Appellant, v. RICHARD V. DIRKES, Defendant-Appellee", "name_abbreviation": "Walton v. Dirkes", "decision_date": "2009-01-27", "docket_number": "No. 1-08-0461", "first_page": "58", "last_page": "69", "citations": [ { "type": "official", "cite": "388 Ill. App. 3d 58" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "839 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "parenthetical": "\"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))\"" } ], "opinion_index": 0 }, { "cite": "603 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "\"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\"" } ], "opinion_index": 0 }, { "cite": "151 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "year": 1992, "pin_cites": [ { "page": "452", "parenthetical": "\"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\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0445-01" ] }, { "cite": "893 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "384 Ill. App. 3d 115", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4278811 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "121-22" }, { "page": "121-22" }, { "page": "125", "parenthetical": "\"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))\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0115-01" ] }, { "cite": "663 N.E.2d 138", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156812 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0901-01" ] }, { "cite": "71 N.E. 1024", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1904, "opinion_index": 0 }, { "cite": "211 Ill. 373", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3307167 ], "year": 1904, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill/211/0373-01" ] }, { "cite": "895 N.E.2d 1067", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "385 Ill. App. 3d 289", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4279481 ], "year": 2008, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/385/0289-01" ] }, { "cite": "679 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "176 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544914 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "104-05" }, { "page": "107-08" }, { "page": "108" }, { "page": "108" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0095-01" ] }, { "cite": "739 N.E.2d 960", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 817", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1025892 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "826-27" }, { "page": "827-29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0817-01" ] }, { "cite": "750 N.E.2d 1280", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126399 ], "year": 2001, "pin_cites": [ { "page": "903" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0900-01" ] }, { "cite": "691 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 967", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847501 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "972" }, { "page": "975" }, { "page": "976" }, { "page": "969" }, { "page": "975" }, { "page": "974" }, { "page": "974" }, { "page": "974" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0967-01" ] }, { "cite": "733 N.E.2d 726", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980661 ], "year": 2000, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0096-01" ] }, { "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": "741 N.E.2d 1055", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "318 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279704 ], "weight": 7, "year": 2001, "pin_cites": [ { "page": "408" }, { "page": "408" }, { "page": "411" }, { "page": "412" }, { "page": "413" }, { "page": "413" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0406-01" ] } ], "analysis": { "cardinality": 1150, "char_count": 30211, "ocr_confidence": 0.794, "pagerank": { "raw": 6.119477991528374e-08, "percentile": 0.38132088009764276 }, "sha256": "9080457b9fdfb9b24be302733bc7aa54979d9b09dc1a9b16da631a70d57d3564", "simhash": "1:fcb108dd6716811f", "word_count": 4932 }, "last_updated": "2023-07-14T22:04:57.079883+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LEAH WALTON, Adm\u2019r of the Estate of Trevor E Walton, Deceased, Plaintiff-Appellant, v. RICHARD V. DIRKES, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThe question in this medical malpractice case is whether the plaintiff presented enough evidence to establish a causal connection between the defendant doctor\u2019s 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 jury\u2019s verdict. We reverse the trial judge\u2019s decision and remand this cause for a hearing on any remaining posttrial issues.\nFACTS\nOn 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 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).\nOn May 3, 1999, Walton returned to defendant\u2019s 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 \u2014 inflammation of the throat. Defendant did not order a CBC.\nOn May 8, 1999, Walton was taken to Loyola University Hospital\u2019s 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 (ALL). An emergency leukophoresis treatment lowered Walton\u2019s white blood cell count to around 80,000. Walton died of cardiac arrest related to ALL on May 9, 1999.\nLeah Walton, administrator of Trevor Walton\u2019s 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 damages. In his posttrial motion, defendant moved for judgment notwithstanding the verdict, or, in the alternative, a new trial.\nThe trial court entered judgment notwithstanding the verdict in defendant\u2019s favor, finding:\n\u201cHere, 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 indicate that decedent had ALL. A lack of testimony linking Dr. Dirkes\u2019 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\u2019s case. Without the testimony discussed above, Dr. Brown\u2019s bare assertion that Dr. Dirkes\u2019 failure to do a CBC at either office visit caused harm to Trevor Walton is mere conjecture. Therefore, plaintiff failed to prove proximate causation, an essential element of plaintiffs prima facie case, and judgment notwithstanding the verdict is proper.\u201d\nDECISION\nI. Judgment Notwithstanding the Verdict\nPlaintiff contends the trial court erred in entering a judgment notwithstanding the verdict in defendant\u2019s favor. Specifically, plaintiff contends the expert testimony contained in the record sufficiently supported the jury\u2019s verdict.\nJudgment non obstante veredicto, or judgment n.o.v., is appropriate where \u201c \u2018all of 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.\u2019 \u201d 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 novo. Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 972, 691 N.E.2d 1 (1997).\nA plaintiff in a medical malpractice case must prove: \u201c(1) the standard of care against which the medical professional\u2019s conduct must be measured; (2) the defendant\u2019s negligent failure to comply with that standard; and (3) the defendant\u2019s negligence proximately caused the injuries for which the plaintiff seeks redress.\u201d Sunderman v. Agarwal, 322 Ill. App. 3d 900, 903, 750 N.E.2d 1280 (2001). The central issue in this case turns on whether plaintiff adequately established defendant\u2019s allegedly negligent failure to order a CBC was a proximate cause of Walton\u2019s injuries.\nProximate 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 \u201ccontingent, speculative, or merely possible.\u201d Aguilera, 293 Ill. App. 3d at 976. While the plaintiffs burden of proof remains the same, our supreme court has recognized proximate cause may be established by evidence that the defendant\u2019s negligent conduct \u201cincreased the risk of harm\u201d to the patient or \u201clessened the effectiveness\u201d of the patient\u2019s treatment. Holton v. Memorial Hospital, 176 Ill. 2d 95, 104-05, 679 N.E.2d 1202 (1997).\nIn 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, Aguilera\u2019s wife, offered testimony from two expert witnesses that the emergency room physician should have ordered an immediate CT scan, given Aguilera\u2019s condition.\nDr. Hamilton, the emergency medicine expert, testified the delayed CT scan \u201cdefinitely related\u201d to Aguilera\u2019s death. Aguilera, 293 Ill. App. 3d at 969. Dr. Hamilton admitted, however, that even assuming Aguilera had received a prompt CT scan he would have deferred to a neurosurgeon to decide whether surgical intervention was necessary. The plaintiffs 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 notwithstanding the verdict for the defendant.\nAffirming the judgment n.o.v., we held:\n\u201cThe 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\u2019s recovery creates a gap in the evidence of proximate cause fatal to plaintiffs 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.\u201d Aguilera, 293 Ill. App. 3d at 975.\nNo evidence supported the plaintiffs experts\u2019 opinion that the negligent delay in administering the CT scan lessened the effectiveness of treatment. Aguilera, 293 Ill. App. 3d at 974. We held \u201c[w]hen there is no factual support for an expert\u2019s opinion, the conclusions alone do not create a question of fact.\u201d Aguilera, 293 Ill. App. 3d at 974.\nIn 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, plaintiffs experts, both testified the defendant deviated from the standard 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 \u201c \u2018[s]he would call another type of physician, once she made the diagnosis.\u2019 \u201d Townsend, 318 Ill. App. 3d at 411. On cross-examination, Dr. Leslie said an imaging test would have increased Puckett\u2019s chance of survival, even if it may not have saved her life. Dr. Hancock testified Puckett\u2019s chance of survival would approach zero without having the obstruction removed. She would have had a 40% to 60% survival rate if the obstruction had been diagnosed and treated in the emergency room. On cross-examination, the defendant\u2019s attorney asked Dr. Hancock the following questions:\n\u201c \u2018Q. Now, it\u2019s your opinion that had she [the defendant] ordered this test, a [kidney stone] might have been seen ***, right?\nA. It might have been seen at the location of the stone of the ureter [found at Puckett\u2019s autopsy].\nQ. You further testified that if it had been identified, it would require immediate attention, correct?\nA. Yes.\nQ. You\u2019re not the type of doctor that would provide that next intervention, are you?\nA. No, that\u2019s correct.\nQ. What type of doctor would do that?\nA. One of two types, a urologist or an interventional radiologist.\nQ. Both of which are outside your area of expertise, correct?\nA. Yes.\u2019 \u201d Townsend, 318 Ill. App. 3d at 412.\nConsidering Aguilera, we asked whether the record contained any evidence to support the opinion of the plaintiff\u2019s experts that the negligent delays \u2014 an imaging test or transferring Puckett to the emergency room \u2014 \u201c \u2018lessened the effectiveness of treatment?\u2019 \u201d Townsend, 318 Ill. App. 3d at 413, 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\u2019s recovery, we concluded the jury was left to speculate about proximate cause. Townsend, 318 Ill. App. 3d at 413. Simply saying Puckett\u2019s chances of survival would go from 0% to 60% if \u201crelief\u2019 had been provided did not address the causation gap. We vacated the jury\u2019s 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.\nSimilarly, in Susnis v. Radfar, 317 Ill. App. 3d 817, 827-29, 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\u2019s enlarged heart condition and possibly avoid or minimize her injuries. A review of the record established the plaintiffs\u2019 experts offered only an opinion on the radiologist\u2019s deviations from the standard of care, but no expert evidence was adduced to a reasonable degree of medical certainty that the radiologist\u2019s deviations proximately caused the child\u2019s injuries. We affirmed the trial court\u2019s 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) (\u201cAlthough both of plaintiff s medical experts agreed Dr. Searle deviated from the proper 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\u2019s alleged deviation caused Wiedenbeck\u2019s injuries or lessened the effectiveness of her medical treatment\u201d).\nIn order to test the trial court\u2019s judgment notwithstanding the verdict order, we have extracted facts from the record that tell the strongest story in support of the jury\u2019s verdict. It is not necessary for a single expert witness to establish the plaintiffs entire case. Instead, it is only necessary that the evidence and testimony, as a whole, convey to the jury sufficient facts to enable it to form a judgment in the matter. See Chicago Union Traction Co. v. Lawrence, 211 Ill. 373, 375, 71 N.E. 1024 (1904).\nPlaintiff 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 defendant\u2019s failure to order a CBC on those dates harmed Walton because a CBC would have led to the diagnosis and treatment of ALL.\nDr. 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. With regard to the April 5 examination, Dr. Brown said:\n\u201cI 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\u2019t have a fever, but he had symptoms like upper respiratory infection which often is accompanied by fever. And because he did not I believe \u2014 and so I believe he deviated from the standard of care by not drawing a CBC and having it processed so he could see \u2014 so he could rule out other conditions.\u201d\nDr. Brown testified a CBC done on April 5 \u201cmore likely than not\u201d would have been \u201cabnormal.\u201d Dr. Brown said \u201c[fit would have given a hint that something else was going on and would have led to the diagnosis of acute lymphoblastic leukemia.\u201d\nWith regard to the May 3 examination, Dr. Brown was asked whether the \u201ctreatment\u201d 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 \u201cthe failure to do a CBC on either the 5th and again on May 3, 1999 hurt Trevor Walton.\u201d\nDr. Leon Dragon, plaintiffs oncology expert, testified ALL cannot be diagnosed without doing blood work. Dr. Dragon explained: \u201cSo patients will present often with somewhat nonspecific symptoms of fatigue, perhaps low-grade fever, not feeling well. And a blood count will be abnormal.\u201d He testified the 50 or 60 ALL patients he treated during his career as an oncologist were diagnosed when \u201c[a] blood count was done that was abnormal.\u201d On cross-examination, Dr. Dragon explained: \u201c[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.\u201d\nWhen asked what type of treatment is available for ALL, Dr. Dragon testified:\n\u201cWell, 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.\u201d\nDr. Dragon testified that, given Walton\u2019s 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\u2019s chances of surviving ALL if a blood count had been done on April 5, 1999, Dr. Dragon said:\n\u201cWell, 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.\u201d\nDr. Dragon was also questioned regarding Walton\u2019s chance of survival had a blood count been done on May 3, 1999:\n\u201cQ. Now, can you quantify to a reasonable degree of medical certainty what Trevor Walton\u2019s chances of surviving ALL were if a blood count had been done on May 3rd, 1999?\nA. Well, I \u2014 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.\nQ. 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?\nA. Well, when he came in on May 9th or the \u2014 late on May 8th, I think, he was \u2014 how I would describe it \u2014 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 it\u2019s just impossible to adequately treat somebody with such a complex disease in that 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, I\u2019ve 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 can\u2019t do it in a couple of minutes.\u201d\nDr. 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, defendant\u2019s life would have been prolonged for approximately two years.\nDr. 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, \u201cwould be significantly abnormal and all \u2014 certainly show signs of leukemia.\u201d Dr. Godwin said Walton\u2019s chances of survival would have been greater had a diagnosis of ALL been made on blood tests conducted on April 5 or May 3.\nDr. Steven Eisenstein, defendant\u2019s family practitioner expert, testified he believed an ALL diagnosis would \u201cmore likely than not have been obtained\u201d had defendant drawn blood on May 3. However, Dr. Eisenstein testified defendant\u2019s 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.\nDr. Richard Larson, defendant\u2019s oncology expert, testified it would have been speculative as to whether a lab report of Walton\u2019s 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 \u201cthere would have been an abnormality detected in [Walton\u2019s] blood\u201d 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.\nIn Wodziak v. Kash, 278 Ill. App. 3d 901, 663 N.E.2d 138 (1996), the plaintiffs decedent went to a hospital emergency room complaining of shortness of breath. The defendant diagnosed a respiratory stridor \u2014 a blocked throat whistle \u2014 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 defendant\u2019s delay in investigating the cause of the stridor postponed treatment and caused decedent\u2019s injury.\nWe affirmed a verdict for the plaintiff, noting the plaintiffs expert testified to a specific procedure \u2014 throat dilatation \u2014 that was postponed by the negligently delayed diagnosis. Wodziak, 278 Ill. App. 3d at 912. That is, the defendant\u2019s negligent delay in investigating the cause of the patient\u2019s stridor lessened the effectiveness of a \u201cdefinitive treatment.\u201d\nMore 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 defendant\u2019s cardiac care unit on June 1,1995. Johnson was transferred to a general medical floor on June 4, without continuous telemetry or oxygen monitoring. Johnson suffered another cardiac arrest on June 5. He was resuscitated but did not regain consciousness. 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 Johnson\u2019s EKG and oxygen saturation.\nWe reversed the trial court\u2019s 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 121-22. We noted the plaintiffs expert specifically testified that:\n\u201cwith adequate monitoring, changes in Johnson\u2019s heart rate, cardiac status, or oxygen level would have caused earlier intervention, \u2018and I think that he would have been treated for his impending cardiac arrest in a much quicker time and, therefore, wouldn\u2019t have had the brain damage from the cardiac arrest he had.\u2019 However, by the time staff had intervened, \u2018at 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.\u2019 \u201d Johnson, 384 Ill. App. 3d at 121-22.\nWe noted similar expert testimony was held sufficient in Wodziak and Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202 (1997).\nIn Holton, the plaintiff became paralyzed as a result of the defendants\u2019 failure to timely diagnose and treat pressure on her spinal cord caused by a fractured vertebra. After the jury returned a verdict in the plaintiffs 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\u2019 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.\nThe plaintiff\u2019s experts testified that when a patient\u2019s 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 \u201c[h]ad the doctors been given the opportunity to properly diagnose [the plaintiffs] condition based on accurate and complete information, they would have had the opportunity to treat her condition by ordering the appropriate treatment.\u201d Holton, 176 Ill. 2d at 108. Because of the hospital\u2019s negligent failure to accurately and timely report the plaintiffs symptomology, the appropriate treatment was not even considered. Holton, 176 Ill. 2d at 108.\nUnlike in Aguilera, Townsend, and Susnis, the plaintiff in this case offered evidence to a reasonable degree of medical certainty that defendant\u2019s 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\u2019s medical treatment. Plaintiff\u2019s oncology expert, Dr. Dragon, did more than simply say Walton\u2019s chance of survival would go from 0% to 40% if treatment had been provided. Instead, similar to Wodziak, Johnson, and Holton, plaintiffs oncology expert testified to specific procedures \u2014 leukopheresis and chemotherapy \u2014 that were delayed by defendant\u2019s failure to order a CBC on April 5 and May 3.\nThe strongest evidence of proximate cause in this case is Dr. Dragon\u2019s testimony regarding how Walton would have been treated had defendant ordered a CBC during Walton\u2019s May 3 office visit. Dr. Dragon testified that, given Walton\u2019s 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\u2019s hospitalization, Walton \u201ccertainly 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.\u201d\nWhen Walton was diagnosed and treated on May 8, Dr. Dragon explained, he was already \u201cin extremis; meaning he was already minutes to a couple hours from death.\u201d Dr. Dragon stressed Walton \u201ccould have been treated very quickly\u201d if a CBC had been ordered on May 3 \u201cbecause the diagnosis can be made very rapidly and chemotherapy can be introduced very quickly.\u201d He noted, in fact, that he had \u201ctreated patients like this myself where, you know, one can turn this around very rapidly.\u201d\nDefendants\u2019 experts, Dr. Eisenstein and Dr. Larson, agreed a CBC would have detected an abnormality in Walton\u2019s blood during the May 3 office visit. Dr. Eisenstein admitted on cross-examination that an ALL diagnosis would \u201cmore likely than not have been obtained\u201d 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, plaintiff\u2019s family physician expert. The credibility and weight of the conflicting witnesses\u2019 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) (\u201cUnquestionably, 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\u2019 testimony\u201d).\nDr. Grano, the emergency room physician, and Dr. Godwin, the hematologist, treated Walton at Loyola Hospital. Each testified regarding how Walton was diagnosed with ALL. Dr. Grano testified she contacted Dr. Godwin \u201cimmediately\u201d after a blood count revealed a white blood cell count of 540,000. Dr. Grano testified Dr. Godwin:\n\u201chelped 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 \u2014 ***\u2014and that they needed to be removed urgently.\u201d\nDr. Godwin testified regarding how he confirmed his initial diagnosis of acute leukemia:\n\u201cMy review of the peripheral blood smears suggested a myeloid leukemia, AML. There are numerous blasts. I list here more than 50%, 60 to 80%, and I would have reviewed a smear that morning before coming up to the ICU not knowing he was coding that morning, and so this note reflects my having gone, looked at that smear for strain.\u201d\nDr. Godwin eventually concluded Trevor had ALL.\nDr. 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 jury\u2019s verdict. The trial court erred in entering judgment notwithstanding the verdict in defendant\u2019s favor. See Holton, 176 Ill. 2d at 109.\nII. Motion for New Trial\nDefendant 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.\nPlaintiff 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, 125, 839 N.E.2d 267 (2008) (\u201cWe 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 \u2014 1202(f) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1202(f) (West 2004))\u201d).\nHere, the trial court found defendant was entitled to judgment notwithstanding the verdict and said it would \u201conly address that issue.\u201d In light of the trial court\u2019s specific refusal to consider the motion for new trial, we see no reason to apply forfeiture. We reverse the trial court\u2019s order granting judgment n.o.v. and remand the cause for a hearing on any remaining posttrial issues.\nReversed and remanded.\nHALL and GARCIA, JJ., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Law Office of John F. Klebba, PC. (John F. Klebba, of counsel), and Law Office of Steven A. Denny, PC. (Steven A. Denny, of counsel), both of Chicago, for appellant.", "Hinshaw & Culbertson, LLP of Chicago (Stephen R. Swofford, Kevin Joseph Burke, and Christine Olson McTigue, of counsel), for appellee." ], "corrections": "", "head_matter": "LEAH WALTON, Adm\u2019r of the Estate of Trevor E Walton, Deceased, Plaintiff-Appellant, v. RICHARD V. DIRKES, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1 \u2014 08\u20140461\nOpinion filed January 27, 2009.\nRehearing denied February 25, 2009.\nLaw Office of John F. Klebba, PC. (John F. Klebba, of counsel), and Law Office of Steven A. Denny, PC. (Steven A. Denny, of counsel), both of Chicago, for appellant.\nHinshaw & Culbertson, LLP of Chicago (Stephen R. Swofford, Kevin Joseph Burke, and Christine Olson McTigue, of counsel), for appellee." }, "file_name": "0058-01", "first_page_order": 74, "last_page_order": 85 }