Perkey v. Portes-Jarol

• Citation: 376 Ill.Dec. 672,2013 IL App (2d) 120470,1 N.E.3d 5
• Decision Date: 17 April 2013
• Docket Number: Docket No. 2–12–0470.
• Parties: Charles PERKEY, Administrator of the Estate of Leanne Perkey, Deceased, Plaintiff–Appellee, v. Michelle PORTES–JAROL, Special Administrator of the Estate of Steven A. Portes, Deceased, and Associated Physicians of Libertyville, S.C., d/b/a Winchester Medical Group, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 120470

1 N.E.3d 5

376 Ill.Dec. 672

Charles PERKEY, Administrator of the Estate of Leanne Perkey, Deceased, Plaintiff–Appellee,

v.Michelle PORTES–JAROL, Special Administrator of the Estate of Steven A. Portes, Deceased, and Associated Physicians of Libertyville, S.C., d/b/a Winchester Medical Group, Defendants–Appellants.

Docket No. 2–12–0470.

Appellate Court of Illinois,

Second District.

April 17, 2013.

James K. Horstman, of Cray, Horstman, Heil & VanAusdal LLC, of Chicago, for appellants.

Robert G. Black, of Law Offices of Robert G. Black, of Naperville, for appellee.

OPINION

Justice SPENCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Charles Perkey, administrator of the estate of Leanne Perkey, deceased, brought a wrongful death/survival action, based on alleged medical malpractice, against defendants, Michelle Portes–Jarol, special administrator of the estate of Dr. Steven A. Portes, deceased, and Associated Physicians of Libertyville, S.C., d/b/a Winchester Medical Group. The jury returned a verdict of $600,000 in plaintiff's favor, with $310,000 of that amount for medical expenses. Defendants seek reversal on appeal, arguing that: (1) plaintiff's standard-of-care expert based her opinions on a legally improper standard of care; (2) plaintiff failed to present sufficient evidence on the issue of proximate causation; (3) the trial court erred in giving the jury the 2006 version of a pattern jury instruction, which did not correctly state the law; and (4) the trial court erred in denying defendants' motion to reduce the judgment under section 2–1205 of the Code of Civil Procedure (735 ILCS 5/2–1205 (West 2010)). We agree with defendants' fourth argument and therefore affirm in part, reverse in part, and remand the cause.

¶ 2 I. BACKGROUND

¶ 3 A. Leanne's Medical History

¶ 4 On February 13, 2001, Leanne visited the office of Dr. Portes. She was seen that day by physician's assistant Patricia Graham. Leanne said that she had back pain that kept her awake at night and that she could not alleviate the pain with over-the-counter medication. Leanne thought it might be something to do with her new workout routine. Graham ordered blood work, urinalysis, and an X-ray of Leanne's abdomen. Those tests were normal. Graham also ordered an abdominal CT scan to rule out the possibility of kidney stones as the pain's source.

¶ 5 Leanne had the CT scan the next day at Gurnee Radiology Center. Dr. Judy Huang, a radiologist, interpreted the CT scan. A copy of the radiology report was forwarded to Dr. Portes's office. The report, which was admitted into evidence, stated that “the pancreatic duct is dilated as seen along its body extending to the head.” It also stated: “Dilation of the pancreatic duct. Correlation with clinical and laboratory findings is recommended with additional evaluation with ERCP [endoscopic retrograde cholangiopancreatography] to assess for either stricture or tumor causing this finding.”

¶ 6 Leanne testified in an evidence deposition as follows. She returned to Dr. Portes's office on February 15, 2001, to discuss the results. She met with Dr. Portes that day. Dr. Portes examined her “briefly,” poking around on her back until he found the spot that was bothering her. Dr. Portes told her that there was “nothing significant” in the CT scan. He did not share any medical records with her or read to her from the radiology report. He did not tell her that her pancreatic duct was wider than it should have been, that the radiologist saw an abnormality in her pancreatic duct, or that she might have a tumor there. Dr. Portes also did not say that the report recommended an ERCP or a referral to a gastroenterologist. She would have remembered any references to “tumor” or “cancer” because both of her parents died from cancer. Instead, Dr. Portes said that he would have additional tests done on blood that had already been drawn. He said that he did not need to see her again unless there were any abnormalities in the additional blood tests. A nurse called about one week later saying that the additional blood tests were normal.

¶ 7 Dr. Portes testified in his evidence deposition as follows. He reviewed the radiologist's report before seeing Leanne. Dr. Huang did not report seeing a tumor in Leanne's pancreas or say that she had cancer. To the contrary, her report said, “A discrete mass in the pancreatic head is not identified.” Dr. Portes read to Leanne from the report, including telling her that the widening of the duct could have been caused by a tumor. Leanne did not have any symptoms or complaints consistent with pancreatic cancer (weight loss; fatigue; burning eyes; jaundice; abdominal pain; loss of appetite; nausea; vomiting; diarrhea). Therefore, Dr. Portes ordered amylase and lipase tests to see whether pancreatitis was causing the widening of the duct. They agreed to a “wait and see” approach before doing an ERCP, because that procedure could have complications. Dr. Portes and Leanne agreed that Leanne would call if she had any signs or symptoms, and then Dr. Portes would immediately refer Leanne to a gastroenterologist. For Leanne's muscle soreness, he diagnosed her with a muscle sprain and prescribed Vioxx.

¶ 8 The lab tests were normal, and Leanne was told of those results on February 27, 2001. Leanne reported that she was feeling better. Dr. Portes did not hear from Leanne again.

¶ 9 Leanne's back pain resolved itself after treatment with a chiropractor. In July 2001, she donated one of her kidneys to a friend. In preparation for the donation, she underwent many tests and was evaluated by more than 15 medical professionals. However, she did not have another CT scan of her abdomen.

¶ 10 Leanne felt well until July 2002, when she felt tired and noticed changes in her urine and stool. She saw her gynecologist, Dr. Richard Allen, who ordered blood work. Dr. Allen said that the results were abnormal and immediately referred her to a gastroenterologist, Dr. Perez. Dr. Perez ordered a CT scan, which showed a blockage in her bile duct. He recommended an ERCP, which revealed a tumor. Based on a biopsy of the tumor and her blood test results, he determined that she had pancreatic cancer.

¶ 11 Dr. Perez referred Leanne to Dr. Yale, a surgeon, for a consult. Dr. Yale recommended surgery to remove the cancerous growth and lymph nodes. According to Leanne, it was only after this that she saw the results from the 2001 CT scan for the first time. Leanne had surgery in September 2002. Dr. Yale said that the cancer had metastasized to one of her lymph nodes. He said that she had a 25% chance of surviving five years. After surgery, Leanne had chemotherapy and radiation therapy for six weeks. She was then able to return to work and resume her normal life.

¶ 12 In February 2006, Leanne had fatigue and shortness of breath. Testing revealed terminal cancer in her lung. The cancer was the same type of cancer that was in her pancreas; it had metastasized to her lung. Leanne passed away on March 7, 2007.

¶ 13 B. Trial

¶ 14 Witness testimony began on October 12, 2011. We summarize the testimony below.

¶ 15 1. Dr. Andrew Lowy

¶ 16 Dr. Lowy was a surgical oncologist. He opined for plaintiff that Dr. Huang's description of the 2001 CT scan as showing that the pancreatic duct was dilated up to one centimeter was “very significant,” because the duct was four to five times its normal size. The only causes of that condition would be a tumor causing an obstruction, in turn causing the duct to enlarge, or stricture, which is scarring that “narrows the duct and causes it to get enlarged.” Stricture could be caused by pancreatitis, which is inflammation of the pancreas, or a congenital defect. Dr. Portes ordered amylase and lipase tests to check for pancreatitis, but those results were normal. Such tests cannot diagnose or rule out pancreatic cancer.

¶ 17 Leanne's 2002 CT scan showed that her pancreatic duct was still markedly dilated. Also, her bile duct and ducts within her liver were now dilated. The type of surgery Leanne underwent, the “Whipple” procedure, was designed to cure the cancer by removing it and the structures around it so that all the cancer cells were removed. Leanne had a cancerous tumor removed from the area of her pancreatic duct. Leanne had chemotherapy and radiation afterward to reduce the risk of recurrence and improve the cure rate by killing undetected cancer cells. In early 2006, Leanne was diagnosed with a recurrence of her pancreatic cancer, in her lung. Cancer cells can travel through the bloodstream and “take up residence in another spot.”

¶ 18 Dr. Lowy opined that the cause of the dilation in Leanne's pancreatic duct in 2001 was pancreatic cancer. He believed that, if she had had an ERCP or been referred to a gastroenterologist at that time, the cancer would have been diagnosed. Her treatment at that time would have been the same as it was in 2002.

¶ 19 Dr. Lowy opined that the delay in detecting Leanne's pancreatic cancer from February 2001 to July 2002 was a cause of the recurrence of her cancer in 2006. The delay was therefore also a cause of the medical treatment she received from January 2006 to March 2007 and a cause of the pain, suffering, weakness, lack of appetite, and weight loss she suffered during that time. Further, the delay caused Leanne to lose a chance at a cure of her cancer and was a cause of her death.

¶ 20 Pancreatic cancer staging refers to categorizing the extent of the disease in a patient. Dr. Lowy identified a document showing five-year survival rates for the cancer, depending on its stage. Five years is the cutoff point because, if a patient were disease-free for five years after treatment, the likelihood that he or she would survive to a natural death would be similar to that of a person who never had cancer.

¶ 21 Dr. Lowy explained that Leanne's cancer was a Stage IIB when it was removed, meaning that it had spread to her lymph...