Robinson v. Boffa

• Decision Date: 14 June 2010
• Docket Number: No. 1-07-1128.,1-07-1128.
• Citation: 930 N.E.2d 1087,402 Ill.App.3d 401,341 Ill.Dec. 573
• Parties: Joyce ROBINSON, as Special Administrator of the Estate of Wanda Boone, Deceased, Plaintiff-Appellant,v.James F. BOFFA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 401

930 N.E.2d 1087

341 Ill.Dec. 573

Joyce ROBINSON, as Special Administrator of the Estate of Wanda Boone, Deceased, Plaintiff-Appellant,v.James F. BOFFA, Defendant-Appellee.

No. 1-07-1128.

Appellate Court of Illinois,

First District, First Division.

June 14, 2010.

COPYRIGHT MATERIAL OMITTED

Michael P. Cogan, Jim P. Navarre, and Michael W. Rathsack, of Michael W. Rathsack, Chicago, IL, for Appellant.

Richard H. Donohue, Karen Kies DeGrand, and Edward E. Fu, of Donohue, Brown, Mathewson & Smyth LLC, Chicago, IL, for Appellee.

Presiding Justice HALL delivered the opinion of the court:

This case arises out of a medical malpractice action brought by plaintiff, Joyce Robinson, as special administrator of the estate of her deceased mother, Ms. Wanda Boone, against defendant surgeon, Dr. James F. Boffa. Ms. Boone had just turned 77 at the time of her death.

Ms. Boone was admitted to the hospital after complaining of weakness and anemia. Because she suffered from iron deficiency anemia, an exploratory colonoscopy was recommended. On February 15, 2000, Dr. Luis Nasiff, a board-certified gastroenterologist, performed the colonoscopy on Ms. Boone. The results showed a cancerous mass in her colon. Ms. Boone saw Dr. Boffa to have the cancerous tumor removed.

On February 18, 2000, Dr. Boffa removed a tissue mass from Ms. Boone's colon, but not the cancerous tumor. Five days later, Ms. Boone underwent a second surgery to remove the cancerous tumor. Ms. Boone died on March 25, 2000.

Ms. Boone's estate filed a negligence action against Dr. Boffa claiming that he violated the applicable standard of care by failing to remove the cancerous tumor during the first surgery and by performing the second surgery too soon after the first surgery. Plaintiff contended the stress of the second surgery caused Ms. Boone's death.

Dr. Boffa argued that his failure to remove the cancerous tumor during the first surgery was not negligent because he was misled by the colonoscopy report as to the location of the tumor.

Plaintiff appeals from the verdict and judgment entered following a jury trial and from the trial court's subsequent order denying her posttrial motion.

Plaintiff's overarching contention on appeal is that the trial court erred in instructing the jury with the long forms of Illinois Pattern Jury Instructions Civil No. 12.04 and No. 12.05 (3d ed. 1989) (hereinafter IPI Civil 3d), on proximate cause. The long form of IPI Civil 3d No. 12.04 tendered by the trial court read:

“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.”

The long form of IPI Civil 3d No. 12.05 tendered by the trial court stated:

“If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.

However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.”

Plaintiff contends on appeal, as she did below, that the trial court erred in tendering the second paragraph of each of the instructions. The notes for each instruction indicate that the second paragraph should be given only where there is evidence tending to show that the sole proximate cause of the occurrence was a third person (IPI Civil 3d No. 12.04), or something other than the conduct of the defendant (IPI Civil 3d No. 12.05). IPI Civil 3d Nos. 12.04, 12.05, Notes on Use.

Prior to trial, defendant sought to admit evidence that the sole proximate cause of the decedent's death was someone other than Dr. Boffa or something other than the second colon surgery decedent underwent. Specifically, defendant sought to admit evidence that the proximate cause of the decedent's death was multisystem failure secondary to congestive heart failure, diabetes, and renal failure; and separately, Dr. Nasiff's negligence in failing to precisely pinpoint the location of the cancerous tumor in his colonoscopy report. Defense counsel claimed the decedent was required to undergo a second colon surgery because the colonoscopy report misled Dr. Boffa as to the precise location of the tumor during the first surgery.

Plaintiff moved in limine to bar such evidence. The trial court denied the motion. The jury ultimately returned a verdict for defendant. The trial court denied plaintiff's posttrial motion and this appeal followed. For the reasons that follow, we affirm.

ANALYSIS

In a medical malpractice action, the plaintiff must prove that the defendant's breach of the applicable standard of care proximately caused the resulting injury. Purtill v. Hess, 111 Ill.2d 229, 241-42, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). Proximate cause is ordinarily an issue of fact for the jury to decide unless the facts are undisputed and reasonable minds could not differ as to the inferences to be drawn from those facts. Kimber v. City of Warrenville, 248 Ill.App.3d 361, 367, 187 Ill.Dec. 542, 617 N.E.2d 1263 (1993).

Plaintiff contends the trial court erred in admitting evidence and argument that Dr. Nasiff's failure to precisely pinpoint the location of the tumor in his colonoscopy report was a proximate cause of the decedent's death. Plaintiff maintains there was no evidentiary basis for such an argument or for the trial court to instruct the jury with the second paragraph of IPI Civil 3d No. 12.04, which followed from that argument.

The admission of evidence is within the sound discretion of the trial court, whose ruling will not be disturbed absent an abuse of discretion. Gill v. Foster, 157 Ill.2d 304, 312-13, 193 Ill.Dec. 157, 626 N.E.2d 190 (1993). In regard to jury instruction, a litigant has the right to have the jury clearly and fairly instructed upon each theory that was supported by the evidence; however, it is error to give an instruction not based on the evidence. Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 100, 212 Ill.Dec. 968, 658 N.E.2d 450 (1995).

Plaintiff's theory of the case was that her mother died from the stress of a second surgery on her colon. Plaintiff claimed her mother would not have required the second surgery if Dr. Boffa had not been negligent in failing to locate and remove a nickel-size cancerous tumor from her mother's colon during the first surgery.

Plaintiff also maintained the doctor was negligent in performing the second surgery only five days after the first surgery. Plaintiff asserted that the second surgery was performed too close in time to the first surgery. Plaintiff argued the decedent had just begun to recover from the first surgery when she underwent the second surgery.

Plaintiff acknowledges that Dr. Nasiff reported the tumor's Location to be approximately 20 centimeters (about 8 inches) away from its actual location in the decedent's colon, but contends that this reported location was only an estimate because of the physical structure of the colon, which is similar to an accordion with various twists and bends. Plaintiff maintains that even if Dr. Nasiff's colonoscopy report initially misled Dr. Boffa as to the precise location of the tumor, this should not have made any substantive difference in the surgery.

Plaintiff claims that once Dr. Boffa grossly examined (examined with the naked eye) the area of the colon described in the colonoscopy report and saw that the lining of the colon (mucosa) was normal, he then knew or was obligated by the applicable standard of care to know that the tissue mass he removed and suspected was cancerous was in fact benign. Therefore, he was required to continue the surgery until he located the cancerous tumor.

Plaintiff asserts the second surgery would have been unnecessary if during the first surgery Dr. Boffa had taken a frozen section of the tissue mass he believed was cancerous and had it analyzed to determine if it was in fact cancerous. In the alternative, plaintiff maintains the doctor could have performed an intraoperative endoscopy to locate and identify the lesion.

Plaintiff argues that if Dr. Boffa had followed either procedure during the first surgery, he would have discovered that the tissue mass he removed, and initially believed was malignant, was in fact nonmalignant, thereby necessitating that he continue the surgery until he located the cancerous tumor. Plaintiff maintains that Dr. Boffa's failure in all of these regards amounted to a deviation from the applicable standard of care.

Plaintiff contends that Dr. Nasiff's alleged negligence in regard to the colonoscopy report was not a legal cause of the decedent's death. We agree.

Dr. Allesandro Fichera, a board-certified colorectal surgeon, and Dr. Nasiff both testified that the standard of care required Dr. Boffa to understand and appreciate that Dr. Nasiff's measurement of the location of the tumor was an estimate. In the instant case, even if we were to conclude, which we do not, that Dr. Nasiff's failure to more accurately pinpoint the location of the tumor in his colonoscopy report was an actual cause of the decedent's death, this would not establish that his conduct proximately caused her death. It would still have to be shown that Dr. Nasiff's conduct was a legal cause of the decedent's death.

“A defendant's acts are a legal cause only if they are ‘so closely tied to the plaintiff's injury that he should be held legally responsible for it.’ ” Simmons v. Garces, 198 Ill.2d 541, 558, 261 Ill.Dec. 471, 763 N.E.2d 720 (2002), quoting McCraw v. Cegielski, 287 Ill.App.3d 871, 873, 223 Ill.Dec. 661, 680...