McWilliams v. Dettore
| Decision Date | 20 January 2009 |
| Docket Number | No. 1-07-0678.,1-07-0678. |
| Citation | 901 N.E.2d 1023 |
| Parties | Carol McWILLIAMS and Robert McWilliams, Plaintiffs-Appellants, v. Donald DETTORE, Christopher D. Joyce, and Suburban Surgical Associates, a Partnership or Corporation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
In this medical negligence case, Carol and Robert McWilliams appeal the circuit court's orders finding their expert, Dr. Hector Gomez, a hematologist/oncologist, not qualified to give standard of care testimony against Dr. Christopher D. Joyce, a surgeon. The plaintiffs also contend the circuit court abused its discretion in denying their motion to voluntarily dismiss their case against both Dr. Joyce and the primary care physician, Dr. Donald Dettore, after the circuit court granted Dr. Joyce's motion in limine, when the jury had already been selected and sworn. We affirm.
The suit against Dr. Dettore and Dr. Joyce, individually and as an agent for Suburban Surgical Associates (SSA)1, alleged they negligently failed to diagnose Mrs. Carol McWilliams with non-Hodgkins lymphoma. Dr. Dettore was Mrs. McWilliams' primary care physician. Dr. Joyce is a surgeon to whom Dr. Dettore referred Mrs. McWilliams.
A September 28, 1998, mammogram of Mrs. McWilliams' left breast revealed a six-centimeter mass in her left axilla (armpit). The radiologist who performed the mammogram recommended a surgical consultation and, according to the plaintiffs, "strongly recommended" a biopsy, followed by tissue samples. Dr. Dettore, consistent with the recommendation from the radiologist, referred Mrs. McWilliams to Dr. Joyce, a surgeon. Dr. Joyce ordered a CT scan. The October 8, 1998, CT scan revealed two lymph nodes each swollen to two centimeters.
Dr. Joyce did not biopsy the lymph nodes. Dr. Dettore was informed about the CT scan findings but did not refer Mrs. McWilliams for further treatment. Dr. Joyce saw Mrs. McWilliams again on October 13, 1998, and in February 1999. Mrs. McWilliams remained under Dr. Dettore's care through September 2000.
In 2001, Mr. and Mrs. McWilliams moved to Wisconsin. Sometime thereafter, Mrs. McWilliams was diagnosed with stage IV B-Cell non-Hodgkin's lymphoma. While stage I non-Hodgkins lymphoma may be treated with radiation and may be cured, stage IV requires chemotherapy and cannot be cured. From February 2002 through August 2003, Mrs. McWilliams underwent intensive chemotherapy. Her lymphoma went into remission.
In 2004 or 2005, Mrs. McWilliams was diagnosed with ovarian cancer. The parties agreed Mrs. McWilliams was likely to die from ovarian cancer.
On May 8, 2003, prior to Mrs. McWilliams' ovarian cancer diagnosis, and while she was undergoing chemotherapy for lymphoma, the plaintiffs filed an amended medical malpractice complaint. The complaint alleged Dr. Dettore breached the standard of care by failing to order a biopsy and that Dr. Joyce breached the standard of care by failing to perform a biopsy. The plaintiffs alleged that had a timely biopsy been performed, Mrs. McWilliams would have been diagnosed with stage I non-Hodgkins lymphoma. According to the plaintiffs, The plaintiffs' negligence theory is that Mrs. McWilliams suffered from stage I non-Hodgkins lymphoma at the time her mammogram revealed the six-centimeter mass that prompted her referral to Dr. Joyce.
In the course of discovery, the plaintiffs made clear their intention to present evidence at trial that the ovarian cancer was caused by the heavy doses of chemotherapy Mrs. McWilliams received in the course of her stage IV lymphoma treatment. The plaintiffs theorized that had Mrs. McWilliams' lymphoma been diagnosed and treated at stage I there would have been no need for the subsequent heavy doses of chemotherapy and the ovarian cancer would not have occurred. The plaintiffs did not amend their complaint to assert this claim.
The plaintiffs retained Dr. Hector Gomez, a hematologist/ oncologist, as their sole expert witness. In the plaintiffs' Supreme Court Rule 213 (210 Ill.2d R. 213) disclosure filed October 25, 2005, Dr. Gomez set forth three medical opinions: (1) the standard of care required Drs. Dettore and Joyce to order a biopsy in 1998, and had a biopsy been performed, Mrs. McWilliams would have been diagnosed with stage I lymphoma; (2) to a reasonable degree of medical certainty, had Mrs. McWilliams been diagnosed with lymphoma at stage I, and had she been treated with surgical intervention and radiation, and possibly chemotherapy, her lymphoma could have been cured or alleviated; and (3) to a reasonable degree of medical certainty, Mrs. McWilliams' ovarian cancer "could be" the result of the failure to properly treat the stage I lymphoma.
Dr. Gomez was deposed on November 3, 2005. He testified he attended medical school in Peru and completed a medical residency and fellowship in hematology and oncology in the United States. He is board-eligible in hematology and oncology, but not board-certified.
Ten percent of Dr. Gomez's case load is devoted to internal medicine, while ninety percent is devoted to oncology/hematology. About 65% of that 90% is devoted to oncology. Seventy percent of those patients are referred to Dr. Gomez with a cancer diagnosis. He diagnoses the remaining 30%. He has treated between 80 and 100 non-Hodgkins lymphoma patients in his career.
Dr. Gomez is the chair of the oncology department at Thorek Hospital in Chicago and is on staff at several other community hospitals. He is an associate professor of clinical medicine at Northwestern University and instructs general residents at St. Joseph Hospital.
In his deposition, Dr. Gomez opined that the standard of care required Dr. Joyce "to do something," such as a biopsy or follow-up with additional CT scans. Dr. Gomez emphasized a biopsy should have been performed. Apparently believing Dr. Joyce was a general practitioner instead of a surgeon, Dr. Gomez also criticized Dr. Joyce for failing to obtain a surgical consult.
When asked to state the basis for his opinion that Dr. Joyce deviated from the standard of care, Dr. Gomez answered:
Dr. Gomez stated the standard of care to be, "What I just said, that if a physician sees someone with such a node, the size of the node mainly, you've got to do something about it, or else chances are you're going to make a mistake." Dr. Gomez agreed with the statement made by Dr. Joyce's counsel that the standard of care is the conduct that a reasonably well-qualified physician would do under similar circumstances.
Dr. Gomez acknowledged he is not board-certified or board-eligible in surgery. He did not complete a surgical residency and has never practiced as a surgeon. He holds no surgical privileges and does not teach surgical residents. He has never performed a biopsy. Dr. Gomez conceded the "ultimate" determination to perform a biopsy is made between the surgeon and the patient. However, a surgeon will generally do a biopsy at the clinician's request. According to Dr. Gomez, no surgeon had ever rejected his biopsy order. Dr. Gomez admitted that where a surgeon, in the course of a consult, declined to perform a biopsy, he would make a second referral to another surgeon.
Dr. Gomez opined that had Mrs. McWilliams been diagnosed with lymphoma in 1998, the lymphoma could have been treated with surgical excision, radiation, and possibly chemotherapy. Dr. Gomez testified that the chemotherapy Mrs. McWilliams would have received in 1998 would have been 95% of the chemotherapy she received to treat her stage IV lymphoma. According to Dr. Gomez, had Mrs. McWilliams been diagnosed in 1998, her life expectancy would have been 15 years.
Dr. Gomez also testified that in his opinion Mrs. McWilliams' lymphoma and the high-dose chemotherapy she received to treat it "greatly enhanced" the likelihood she would suffer from ovarian cancer, but did not "cause" it. When asked to give the basis for his opinion that there was a link between chemotherapy and ovarian cancer, Dr. Gomez explained, couched in reasonable degree of medical certainty language, lymphoma suppresses a patient's immune system and 5% to 10% of immunosuppressed patients receiving high-dose chemotherapy develop a second malignancy, such as leukemia or ovarian cancer. When asked to identify any medical textbooks that supported his position that there is a link between chemotherapy-induced immunosuppression and a secondary malignancy, Dr. Gomez answered, "Based on my experience, it's my opinion because I've read so much that after 30 years I cannot precisely say what—I've read it somewhere."
In October 2006, on the eve of trial, Dr. Dettore and Dr. Joyce filed numerous motions challenging Dr. Gomez's anticipated testimony at trial.
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