Moller v. Lipov

• Decision Date: 29 September 2006
• Docket Number: No. 1-05-0061.,No. 1-04-3640.,1-04-3640.,1-05-0061.
• Citation: 368 Ill. App.3d 333,305 Ill.Dec. 859,856 N.E.2d 664
• Parties: Robert MOLLER, Individually, and as Executor of the Estate of Hope Moller, Deceased, Plaintiff-Appellee/Cross-Appellant, v. Sergei LIPOV and Key Medical Group, Ltd., Defendants-Appellants/Cross-Appellees.
• Court: United States Appellate Court of Illinois

856 N.E.2d 664

368 Ill. App.3d 333

305 Ill.Dec. 859

Robert MOLLER, Individually, and as Executor of the Estate of Hope Moller, Deceased, Plaintiff-Appellee/Cross-Appellant, v. Sergei LIPOV and Key Medical Group, Ltd., Defendants-Appellants/Cross-Appellees.

No. 1-04-3640.

No. 1-05-0061.

Appellate Court of Illinois, First District, Third Division.

September 29, 2006.

Anne M. Oldenburg, Melvin G. Hobbs, Alhom, Monahan, Klauke, Hay & Oldenburg, L.L.C., Hugh C. Griffin, Elsa Y. Trujillo, Lord, Bissell & Brook LLP, Chicago, Samuel J. Leib, Leib & Katt, S.C., Milwaukee, WI, for Plaintiff-Appellee/Cross-Appellant.

Kenneth C. Chessick, John W. Fisk, Travis W. Life, Matthew R. Hess, Magdalena Dworak, Stuart E. Card, The Law Offices of Kenneth C. Chessick, M.D., Schaumburg, for Defendants-Appellants/Cross-Appellees.

Presiding Justice THEIS delivered the opinion of the court:

This appeal arises from a wrongful death and survival action filed by plaintiff, Robert Moller, individually and as executor of the estate of his wife, Hope Moller, against defendants Sergei Lipov and Key Medical Group, Ltd. Plaintiff alleged that Dr. Lipov negligently failed to timely diagnose, treat, and refer Moller with regard to her breast cancer, and that Key Medical Group, Ltd. was vicariously liable for his negligence. Defendants filed an affirmative defense, raising Moller's comparative fault in failing to follow the treatment recommendations of Dr. Lipov. The jury returned a verdict in plaintiff's favor and awarded $3 million in damages, which was reduced to $1.5 million to reflect the jury's finding that Moller was 50% at fault.

On appeal, defendants contend that: (1) the trial court erred in denying their motions for directed verdict or judgment n.o.v. where plaintiff's expert was not qualified and failed to establish that any deviation of the standard of care was a proximate cause of Moller's death; (2) the verdict was against the manifest weight of the evidence; (3) the admission of unfounded causation opinions was reversible error; and (4) counsel's inflammatory closing argument deprived defendants of a fair trial.

On cross-appeal, plaintiff contends that the trial court erred in: (1) denying his motion to strike defendants' affirmative defense of comparative negligence; (2) denying his motion for a directed verdict regarding comparative negligence; and (3) denying his request for costs related to the health professional's report under section 2-622 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-622 (West 2004)). For the following reasons, we affirm the judgment of the circuit court.

BACKGROUND

Hope Moller was 34 years old when she initially established a physician-patient relationship with Dr. Lipov in March 1998 for a thyroid condition. On January 28, 1999, Moller returned to Dr. Lipov, complaining of right breast tenderness and pain in one specific location. Dr. Lipov recorded that Moller had a hard, tender, one-centimeter mass in her right breast and her lymph nodes were negative. He did not record how long the mass had been present, whether it had changed since Moller first noticed it, how it was affected by menstruation, the specific location of the mass, whether Moller was taking birth control or other medications, the mobility or attachment of the mass, signs of infection, the consistency of the mass, or whether there was any dimpling or nipple discharge. Nevertheless, Dr. Lipov testified that it was his custom and practice to consider all of these items during an exam. Dr. Lipov thought that the mass was probably an inflammation of the breast tissue. He scheduled Moller for a mammogram because she was concerned about the mass, and instructed her to administer warm applications to it. His records indicate that he advised her to return to see him in 10 days "if not better, if the lesion gets bigger."

On February 4, 1999, Moller had a mammogram and an ultrasound which revealed two nodules in the right breast; one nodule in the nine o'clock position and the other in the six o'clock position, the area where the mass had been felt. Dr. Patrick Para, the radiologist who interpreted the mammogram and ultrasound, stated that the two nodules were solid, similar in appearance, and most likely related to a benign tumor. Dr. Para stated in his report that if the mass was clinically suspicious, a biopsy was recommended. It was his opinion that had Moller presented with a mass that had been persistent over two menstrual cycles, that fact would have increased the index of suspicion that the mass was cancer and would require a biopsy. Dr. Lipov testified that he had a telephone conversation with Moller on February 5, 1999, the day he received the mammogram and ultrasound results. He informed Moller that the mass was probably benign, but told her that "we need to follow up," and asked her to return if the mass did not get better. His notes indicated that Moller's breast was less tender and that she should return to the clinic if the mass increased in size.

On April 3, 1999, Moller came to see Dr. Lipov complaining of fatigue related to her thyroid condition. Moller did not mention any problems with her breast and Dr. Lipov did not examine her breasts at that visit. He suspected that her symptoms were related to sleep apnea and suggested that she lose weight. He instructed her to return in one month for a follow-up visit.

Moller's husband testified that between January and June, he observed Moller examining her breasts and that the pain from the mass continually worsened between February and June, to the point that she could not hug her children or wear a bra. Moller's mother testified that Moller knew how to perform a breast exam and that between February and June 1999, Moller's increasing pain affected her housework, her time with her children, and her ability to wear a bra. During this time period, Moller's mother tried to get Moller to see another doctor.

Moller did not see Dr. Lipov again until June 17, 1999. At that time, she complained of pain in her chest. Dr. Lipov examined her breasts and found that the mass in her right breast had greatly increased in size. It measured 4.5 centimeters. The mass was tender, adherent, and was visibly protruding from the rest of the breast. Dr. Lipov recalls the appointment and recalls asking her why she waited so long to come in and she said, "something to the extent of, I thought it was getting better." Dr. Lipov referred Moller to a surgeon, Dr. Andrew Kramer, who performed a biopsy, which was positive for breast cancer.

Dr. Kramer performed a modified radical mastectomy on Moller on June 25, 1999. During that procedure, he removed her right breast along with 35 lymph nodes. None of the removed lymph nodes contained cancer, and there was no evidence of metastasis. Thereafter, Dr. Aslam S. Zahir administered chemotherapy to Moller from August 1999 to October 1999. In April 2000, Moller had breast reconstructive surgery, but by November 2000, tests results revealed signs that the cancer had spread. Thereafter, Moller was treated by another oncologist, Dr. Melody Cobleigh. By February 2001, Moller's cancer had spread to her lungs and had recurred in the chest wall. She was given chemotherapy to shrink the tumor and prevent further spread of the disease. She ultimately died on July 22, 2001, due to metastatic breast cancer.

Plaintiff's expert, Dr. Arthur Rossof, testified that he is board-certified in internal medicine, oncology and hematology and practices in the subspecialties of oncology and hematology. It was his opinion that Dr. Lipov deviated from the standard of care by failing to obtain a reasonable history, failing to perform a reasonable physical examination, and failing to include Moller's breast problem on a "problem list." Additionally, it was Dr. Rossof's opinion that Dr. Lipov deviated from the standard of care by failing to refer Moller to a surgeon for a biopsy on January 28, 1999, when she presented to Dr. Lipov with the mass, deviated again on February 4, 1999, when he received the mammogram/ultrasound results, and again on April 3, 1999, when Moller presented in his office complaining of fatigue. Dr. Rossof further testified that these negligent acts caused and contributed to the delay in diagnosis of breast cancer, the need for a radical mastectomy rather than a lumpectomy, the spread of cancer, and her ultimate death.

Specifically, Dr. Rossof was critical of Dr. Lipov's care on January 28 because there was nothing in his records to indicate that a proper history was obtained. Dr. Rossof stated that it was important for diagnostic purposes to determine how long the mass had been there and whether it had changed over the course of Moller's menstrual cycle. It was his opinion that had the proper history been taken, Dr. Lipov would have had known that her mass had been there since November or December 1998, unchanged over two menstrual cycles. Given that knowledge, it would have raised Dr. Lipov's index of suspicion for cancer. When asked what the standard of care required in terms of evaluation, Dr. Rossof stated that in addition to the mammogram, Dr. Lipov should have referred her to Dr. Kramer on January 28 for a biopsy.

In addition, Dr. Rossof was critical of Dr. Lipov's care on February 4, 1999, after receiving the results of the mammogram. The results revealed that the mass was a solid lesion which, in his opinion, created another high risk feature, and was therefore clinically suspicious. As a result, given that she had a persistent mass since at least December, Moller should have been reexamined within a relatively short period of time and/or referred to somebody else more familiar with identifying breast cancer at that time for a biopsy. In Dr. Rossof's opinion, it was not enough to tell Moller to come back if the mass got bigger because she was not a skilled observer and Dr. Lipov should not have waited for it to grow. Dr. Rossof also agreed...