Dabros by Dabros v. Wang

Citation243 Ill.App.3d 259,611 N.E.2d 1113
Decision Date16 February 1993
Docket NumberNo. 1-91-1543,1-91-1543
Parties, 183 Ill.Dec. 465 Dawn Marie DABROS, a minor by her mother and next friend, Cheryl DABROS, Plaintiff-Appellant, v. S.Y. WANG, M.D., Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Drumke & Patterson, Ltd., Chicago (Robert B. Patterson, Danielle M. Jaeschke, of counsel), Madigan & Getzendanner (Vincent J. Getzendanner, Jr., of counsel), for plaintiff-appellant.

Clausen Miller Gorman Caffrey & Witous, P.C., Chicago (James T. Ferrini, Imelda Terrazino, of counsel), for defendant-appellee.

Justice SCARIANO delivered the opinion of the court:

Plaintiff Dawn Marie Dabros, by her mother, Cheryl Dabros (Cheryl), brought this medical malpractice action against defendant S.Y. Wang, M.D. for allegedly misdiagnosing and negligently treating a condition called capillary hemangioma on her left leg. A jury found for defendant; plaintiff appeals from that verdict.

Plaintiff's Surgery

Plaintiff was born on April 16, 1974, and a few days later, Cheryl noticed what she characterized as a small bruise on the side of the infant's left leg near her knee. She testified that it looked "like someone had hit her just a little" and that there was "no size" to the mark.

When Cheryl took plaintiff to her pediatrician, Dr. Cuilini, a few weeks later, the mark had broadened, growing to about the size of a fifty cent piece, and had turned red. Within the next few months, the mark started to rise; it became discolored, and continued to grow; nevertheless, when Dr. Cuilini saw plaintiff again about two months after her birth, he told Cheryl that the mark was fine and that she should just watch it.

Dr. Cuilini examined plaintiff once again on July 25, 1974, and Cheryl testified that at that time the mark looked like "a little round ball like a little apple," was somewhat raised, appeared reddish in color, and contained some white or gray areas; it also had a break or ulceration in it about an inch in size which was not bleeding, but was slightly discharging pus. Dr. Cuilini decided to refer Cheryl and plaintiff to defendant for further treatment.

Cheryl took plaintiff to see defendant that same evening and informed him of the history of the mark and its persistent growth. She testified that defendant recommended immediate surgery to remove the growth from plaintiff's leg in order to avoid the possibility of amputation because the sore was ulcerating, which could indicate the presence of cancer. Defendant informed Cheryl that some scarring might result from the surgery.

Defendant performed surgery on plaintiff the next day. He excised the entire mark from her leg and placed skin grafted from her upper left thigh over the open surgical area. He bandaged the site with a stent dressing to compress the graft against the wound to immobilize it, and then he discharged plaintiff, telling Cheryl not to touch the dressing.

During the first post-operative visit on July 31, 1974, defendant told Cheryl that the graft seemed to be "taking" and that the excision was healing well. However, it subsequently became infected, and defendant was forced to perform a second surgery. He grafted additional skin from plaintiff's right thigh and placed it on both the original incision and the first graft donor site. Plaintiff's right thigh healed well, leaving little residual discoloration; her left leg, however, was extensively scarred from her knee to her upper thigh. Plaintiff testified that although the scar causes her no pain or any other functional problems, she is extremely embarrassed because of its appearance.

The Complaint

On August 5, 1985, Cheryl filed a complaint on plaintiff's behalf against defendant which alleged that his diagnosis and treatment of a small birthmark or hemangioma on plaintiff's left knee was negligent. Defendant answered the complaint, admitting that plaintiff had come under his care for hemangioma on her left leg, but denying all allegations of negligence on his part.

The Condition

Expert testimony elicited by both parties at trial established that the growth on plaintiff's left leg was a capillary hemangioma which they defined as an overgrowth of capillaries (small blood vessels) that occurs on the skin. It appears as a small dot at birth, but starts to grow soon thereafter and eventually turns into a large red mark resembling a strawberry which often bleeds or ulcerates slightly. It usually goes through a growth stage for about one year and then turns white, becomes static, and ultimately degenerates, leaving a small scar at the place of ulceration. Capillary hemangiomas are present in approximately one of every eight infants, and about eighty-five to ninety percent of them resolve themselves within eight to ten years.

Expert Testimony at Trial

The first medical expert witness presented by the plaintiff, offered via a videotaped deposition, was that of Elvin Zook, M.D. He stated that from looking at a picture of plaintiff's leg taken immediately before her surgery, the red blotch unquestionably was a capillary hemangioma. Dr. Zook testified that the standard of care in 1974 would have been to keep the wound clean, monitor it carefully, and simply wait for it to resolve itself; he did state, however, that surgery might be appropriate in a few rare instances, e.g., where the entire wound was ulcerating or bleeding, or where the hemangioma could damage the knee joint. In this case, however, Dr. Zook opined that it was unnecessary to excise the hemangioma since it was not affecting the knee joint nor was it bleeding; further, surgery was especially inappropriate in this instance because it was an open wound which increased the likelihood of infection.

Dr. Zook also stated that while he did not think that defendant was negligent in surgically removing the wound or in grafting the skin on plaintiff's left leg, his decision to excise the hemangioma breached the applicable standard of care because if defendant had simply waited for it to resolve itself, the size of the resulting scar would have been somewhere between a dime and a fifty cent piece. Finally, Dr. Zook stated that the appearance of plaintiff's scar could be improved by approximately 75% by performing further surgical techniques.

Plaintiff next called defendant as an adverse witness, who testified that he did not know for sure what the wound was when he first examined plaintiff, and although he was familiar with capillary hemangiomas this blemish was atypical. 1 Defendant admitted that normally, most capillary hemangiomas resolve themselves without extensive treatment; however, he was convinced that if the mark was a hemangioma, then it was not an ordinary one because it had grown so rapidly 2 and was ulcerating. Defendant testified that he normally does not surgically remove a capillary hemangioma unless it poses the potential for more serious injury, and that he also knew that the surgery he performed would cause a scar and, as with any surgical procedure, included the risk of infection. Nonetheless, he still recommended excising the wound for the following reasons: (1) since the wound contained so many capillaries (blood vessels), if plaintiff had scraped the wound, then it would have started to bleed, and such bleeding may have been unstoppable, thus necessitating amputation; (2) it was possible that the entire wound might have begun to ulcerate if it had not been surgically removed; (3) the wound could have engulfed plaintiff's entire leg, perhaps resulting in more serious damage to it; and (4) there was a chance the wound could have been cancerous. Finally, defendant stated that considering the fact that two surgeries were necessary due to the infection after the first one, plaintiff's scar was better than he expected it to be.

Defendant called as its only expert witness Martin Sullivan, M.D. He concurred with Dr. Zook in that, ordinarily, the standard of care for treating a capillary hemangioma is "watchful neglect." However, he testified that surgery is necessary in some unusual cases, especially when the wound is located in certain areas, such as the eyelids, the anus, or in the "crease" behind one's elbow or knee. In Dr. Sullivan's opinion, defendant's excision of plaintiff's hemangioma was within the standard of care because: (1) from the pictures available, the wound appeared to be in the crease behind plaintiff's knee joint; (2) if the first graft had "taken," the resulting scar would have been comparable to one that would have resulted had the wound simply been allowed to heal; and (3) the hemangioma was unusual in that it was extremely large. Dr. Sullivan stated that had he been the treating physician, he might have waited a few days before removing the hemangioma to see whether it was healing; however, he could not, in retrospect, say that defendant acted negligently in opting to immediately excise the wound to prevent potentially more severe symptoms.

After hearing all of the evidence, the jury found for defendant, and plaintiff appeals from that verdict.

I.

Plaintiff first asserts that the trial court erred by refusing to set aside the jury's verdict and enter a judgment non obstante veredicto, or in the alternative, grant a new trial. It is well settled that a trial court should enter a j.n.o.v. only if all of the evidence, viewed in a light most favorable to the non-moving party, so overwhelmingly favors the moving party that no contrary verdict based on the evidence could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14); and that standard also governs a reviewing court's consideration of a trial court's denial of a j.n.o.v. ( Knight v. Haydary (1992), 223 Ill.App.3d 564, 569, 165 Ill.Dec. 847, 851, 585 N.E.2d 243, 247, appeal denied, (1992), 145 Ill.2d 635, 173 Ill.Dec. 5, 596 N.E.2d 629.)

Our supreme court also emphasized in Pedrick that a different standard is...

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