Downey v. Dunnington
| Decision Date | 13 June 2008 |
| Docket Number | No. 4-07-0681.,4-07-0681. |
| Citation | 384 Ill. App.3d 350,895 N.E.2d 271 |
| Parties | Sandra G. DOWNEY, n/k/a Sandra G. Hart, Plaintiff-Appellant, v. Gary DUNNINGTON, M.D., and SIU Physicians and Surgeons, Inc., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Plaintiff, Sandra G. Downey, sued a surgeon, Gary Dunnington, and his employer, Southern Illinois University (SIU) Physicians and Surgeons, Inc., for medical malpractice. This is an informed-consent case. The jury returned a verdict for the defendants, and plaintiff appeals. She argues the trial court erred in certain rulings it made before and during trial. She also argues the verdict is against the manifest weight of the evidence and, for that reason, the court should have granted her a new trial. We find error in two evidentiary rulings; but we conclude that if the court had ruled the other way, the verdict would have been the same. Because the verdict has some basis in the evidence, we find no abuse of discretion in the denial of plaintiff's motion for a new trial. Therefore, we affirm the judgment.
The second amended complaint has two counts. The first count is against Dunnington and sounds in professional negligence. The second count is against SIU Physicians and Surgeons, Inc., and sounds in respondeat superior.
The factual allegations in count I, incorporated into count II, are as follows. On February 14, 2000, plaintiff had an appointment with a physician, Elvin Zook (who is not a party to this case). Plaintiff's mother, Betty Hart, came along with her to this appointment, and Zook wrote down in plaintiff's medical records that Betty had a history of bilateral breast cancer. Actually, that information was incorrect: Betty never had cancer in both breasts. Zook referred plaintiff to Dunnington, and she went to her appointment with him on February 16, 2000. Dunnington wrote the same erroneous information in plaintiff's medical records — that her mother had bilateral breast cancer. He also wrote that plaintiff's mother and sister both had a history of ovarian cancer. That information likewise was incorrect: neither of them ever had ovarian cancer. Given the family medical history as Dunnington understood it, plaintiff was a candidate for genetic testing to determine whether she was genetically predisposed to develop breast cancer. Dunnington told her that the Department of Public Aid would not cover genetic testing. He failed to inform her, however, of the grants that were available to cover genetic testing. He recommended bilateral prophylactic mastectomies "as a treatment option." Plaintiff alleges "[i]t was not the accepted standard of care, among reasonably well[-]qualified surgeons[,] to recommend prophylactic mastectomies for patients who had risk factors similar to [plaintiff's] actual risk factors." Relying on Dunnington's erroneous advice and "unaware that she was not at very high risk for contracting breast cancer," plaintiff agreed to bilateral prophylactic mastectomies, which Dunnington performed on March 17, 2000. In the same surgery, Zook inserted breast implants and reconstructed plaintiff's breasts. A pathological examination of breast tissue from the surgery revealed no malignancy.
Paragraph 23 of counts I and II accuses Dunnington of medical malpractice. It reads as follows:
The second amended complaint alleged that as a result of such negligence, "both of [p]laintiff's breasts were removed and breast implants were inserted[;] [she] developed seroma and a staphyloccus infection[,] requiring removal of the implants and further hospitalization[;] [she] has been permanently disfigured for life[;] [and she] underwent removal of her ovaries and uterus." In further consequence, she "missed significant time from work endeavoring to be healed of her injuries"; she "[has] experienced[,] and will continue to experience[,] pain and suffering"; and she has incurred medical bills and will continue to incur them.
The affirmative defense alleges that the misinformation was plaintiff's fault. Defendants plead as follows:
"1. Sandra Downey had a duty to provide accurate information to the [d]efendants.
2. Sandra Downey gave inaccurate information regarding her personal and family history.
3. In reliance on the information Sandra Downey provided, the [d]efendants offered treatment options[,] including bilateral prophylactic mastectomies."
On February 22, 2007, defendants filed a motion in limine, in which they sought to bar plaintiff from suggesting to the jury that Dunnington declined to refer her for genetic counseling because of her lack of funds. Specifically, the motion sought to bar the following allegations from trial:
On February 23, 2007, the trial court held a hearing on the motion in limine. Defendants' attorney told the court he was concerned that in her discovery deposition, plaintiff's medical expert, Barbara L. Weber, had offered an opinion in which she assumed facts having no basis in the evidence: she opined it would be a breach of the standard of care to refuse to refer plaintiff for genetic testing on the ground that plaintiff could not pay for it. But, according to defendants' attorney, the record was devoid of evidence that money had anything to do with Dunnington's not referring plaintiff for genetic testing. Defendants' attorney quoted Weber's discovery deposition, in which he asked her the following question:
"Q. What is your understanding o[f] the reasons Sandra Downey did not pursue genetic testing?
* * *
[A.] My interpretation of the record[,] including the deposition of Dr. Dunnington[,] was that it was his impression that she was very likely to have a mutation and it was very unlikely that Medicaid would cover the cost of her testing[] and, therefore, he didn't follow up on referring her to the genetic counselors. Not that it didn't happen[,] but I am not aware that he tried to refer her and she refused to go.
It was my impression that he never referred her because of the reasons I just stated."
In Weber's opinion, "decisions about taking care of patients should not be made on the basis of their ability to pay." Defendants' attorney asked her:
"Q. And Dr. Dunnington and Dr. Zook did not do that, agreed?
A. My interpretation[,] as is on the record previously[,] is that one reason, if not the reason, that Dr. Dunnington did not refer Sandra Downey to the genetic counselors was his concern that she was not able to pay for that service and for the associated genetic testing. That was a significant factor.
From my interpretation of what I have been provided[,] that played a substantial role in the decision not to send her[,] and I don't believe that's the standard of care. And I do believe that if he sent her[,] neither Dr. Dunnington nor Sandra Downey would be in the mess that they are in right this moment."
Defendants' attorney argued to the trial court that the record contained no evidence to support Weber's "interpretation"—there was no evidence that Dunnington tried to dissuade plaintiff from undergoing genetic testing, let alone that he did so because of her poverty. Citing our decision in Coffey v. Brodsky, 165 Ill. App.3d 14, 24, 116 Ill.Dec. 16, 518 N.E.2d 638, 644 (1987), he argued that an expert should not "offer[] an opinion about * * * facts which didn't exist." Just because Dunnington told plaintiff that public aid would not cover genetic testing, it did not follow that he denied her genetic testing; he was obligated to warn her that some procedures might not be covered. Defendants' attorney quoted Dunnington's discovery deposition, in which plaintiff's attorney referred to her client's "opt[ing] not to have" genetic testing:
"Q. Now, given the fact that Sandy didn't have money for the BRCA 1 [(breast cancer gene 1)] testing, do you believe it was a reasonable decision on her part to opt not to have it?
A. Again, I try [to be] very careful[,] as a breast[-]cancer surgeon[,] not to judge people's choices, because I'm dealing almost daily with patients [to whom] I've given recommendations and [whom I've] allow[ed] * * * to make choices for whatever reasons they may choose.
Usually[,] when a patient chooses not to have genetic testing, the reason is that she believes[—]and we focus on this discussion as we're talking about it[—]usually[,] she believes that it would not impact her decision.
And my assumption here would have been[] that Sandra had pretty much[,] in her mind[,] committed that that's the operation she wanted.
In my discussion with her[,] it was very clear she had already given a lot of thought about this. She had talked to Doctor Green about it[—or to] Doctor Zook[,] at least[,] about the reconstructive options[—]and ...
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