Russell by Russell v. Subbiah

• Decision Date: 07 November 1986
• Docket Number: No. 3-85-0706,3-85-0706
• Citation: Russell by Russell v. Subbiah, 500 N.E.2d 138, 149 Ill.App.3d 268, 102 Ill.Dec. 516 (Ill. App. 1986)
• Parties: , 102 Ill.Dec. 516 Michael RUSSELL, a minor, by his parent, Michelle RUSSELL, Plaintiff-Appellant, v. Bakkiam SUBBIAH, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 138

500 N.E.2d 138

149 Ill.App.3d 268, 102 Ill.Dec. 516

Michael RUSSELL, a minor, by his parent, Michelle RUSSELL Plaintiff-Appellant, v. Bakkiam SUBBIAH, Defendant-Appellee.

No. 3-85-0706.

Appellate Court of Illinois Third District.

Nov. 7, 1986.

Donald A. Shapiro, Donald A. Shapiro, Ltd., Ardwin E. Boyer (argued), Chicago, for Michael Russell by Michelle Russell.

Samuel S. McHard, Katz, McAndrews, Durkee, Balch & Lefstein, P.C., Lori R. Lefstein (argued), Rock Island, for Bakkiam Subbiah.

Justice WOMBACHER delivered the Opinion of the Court:

The defendant, Dr. Bakkiam Subbiah, was charged with negligence in his care of the plaintiff, Michael Russell, who at the age of two years suffered from what was ultimately determined to be a spinal cord tumor. The plaintiff alleged that Dr. Subbiah's original misdiagnosis of his condition as Guillain-Barre Syndrome, and the resulting delay in rendering the proper treatment for the tumor, caused increased injury to the plaintiff's right leg and prolonged his recovery period.

The trial court granted summary judgment for the defendant on the grounds that the plaintiff's evidence fell short of the preponderance needed at trial to establish that the delay proximately caused the plaintiff's injury. The plaintiff claims that he established proximate cause through the deposition testimony and affidavit of his expert, Dr. Peter Heydemann. We find the plaintiff's position to be without merit, and affirm the trial court's ruling.

For purposes of this opinion, it will not be necessary to delve into the details of the defendant's treatment of Michael Russell. There is no issue with respect to the matter of Dr. Subbiah's alleged deviation from applicable standards of medical care.

The focus of the debate as to whether the plaintiff's expert did or did not establish proximate cause is upon the following excerpt from Dr. Heydemann's deposition:

"MR. McHARD (defendant's attorney): So, to clarify your opinion that--are you saying that you are able to state with a reasonable degree of medical certainty that the delay of diagnosis of this spinal cord tumor caused Michael Russell to have a longer period of recovery in his right leg?

DR. HEYDEMANN: That is hard to state with certainty, given all the variables that are involved. I think, you know, as far as general principle goes, I think it's a contributing factor.

MR. McHARD: But I'm asking for an opinion based on a reasonable degree of medical certainty.

DR. HEYDEMANN: The answer is I cannot say that, no."

The plaintiff maintains that Dr. Heydemann's theory of the case was that the tumor, itself, was the most direct cause of the injury, but that the delay in diagnosis was a contributing factor. At one point in the expert's deposition, however, the following exchange took place:

"MR. McHARD: Do you have an opinion based upon a reasonable degree of medical certainty as to whether anything Dr. Subbiah did or failed to do from 6/17/84 until the child's transfer to Iowa City caused proximately any of those extended rehabilitation problems with the right leg?

DR. HEYDEMANN: What does 'proximately' mean?

MR. McHARD: Direct, as the cause that you can identify.

DR. HEYDEMANN: No.

MR. McHARD: No, you don't have an opinion, or no, you do have an opinion and there was none?

DR. HEYDEMANN: The opinion is that it did not cause the problems of the right leg directly."

The plaintiff complains that counsel for the defendant misled the witness by giving an inaccurate definition of proximate cause. He cites Illinois Pattern Jury Instruction, Civil, No. 15.01 (2d ed. 1971), which defines proximate cause as "any cause which, in the natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury."

By limiting proximate cause to the "direct" cause of the injury, defendant's counsel incorrectly implied that concurring or contributing causes were excluded from the definition. However, a complete reading of all of the excerpts from Dr. Heydemann's deposition which were included in the record leaves no room for doubt as to the expert's opinion that the delay in diagnosis was, to a reasonable degree of medical certainty, a contributing factor in the plaintiff's prolonged recovery.

On the other hand, the doctor was clearly unwilling to express an opinion as to the extent of the resulting increase in damage to the plaintiff's spinal cord which was attributable to the delay, as opposed to the tumor itself, or the precise length of time by which the child's recovery was extended because of the defendant's negligence. However, this by no means impaired his testimony that the delay in diagnosis was causally related to the plaintiff's injury.

The following excerpts from the deposition are typical of the doctor's responses:

"MR. McHARD: Based on a reasonable degree of medical certainty, what, if any, damage resulted to Michael Russell as a result of not performing a myelographic study or a CT scan on the 27th, in fact, delaying it until the 3rd before the 4th of July?

DR. HEYDEMANN: I think the damage is in the area of continued compression and presumed continued myelopathy, which is one of the terms of compression of the spinal cord, and as part of that probably continued ischemia, which means somewhat diminished blood flow to the area of the spinal cord.

MR. McHARD: Are those opinions based on a reasonable degree of medical certainty?

DR. HEYDEMANN: I think this is by and large prevailing medical opinions [sic] of what's happening in an area of pressure in the spinal cord caused by an expanding tumor. Now I think the part that becomes less certain is how much increased insult to his spinal column was this--not to his spinal column, to his spinal cord--and how long-lasting would such effects be.

MR. McHARD: When you say those are uncertain, you're saying you're not able to state with a reasonable degree of medical certainty what that impact is; is that correct?

DR. HEYDEMANN: I think it would prolong recovery, but I can't tell you precisely how long that would be.

* * *

* * * MR. McHARD: So there wouldn't have been any neurological damage that could have reasonably been prevented by an earlier diagnosis; isn't that correct?

DR. HEYDEMANN: Well, I think that the length of time that the spinal cord is undergoing the squeezing does have some bearing on the length of disability. And so the answer to your question is I think that the two weeks thereafter is causing more injury, the delay of two weeks is causing more injury at that point.

MR. McHARD: But based on a reasonable degree of medical certainty, you can't tell how much injury is being caused?

DR. HEYDEMANN: Cannot."

Seeking to clarify any perceived weakness in Dr. Heydemann's testimony, at the hearing on the defendant's motion for summary judgment the plaintiff submitted an affidavit from the doctor. In pertinent part, it states that the tumor itself was "the most direct and immediate cause" of the damage to the plaintiff's right leg, but that Dr. Subbiah's improper delay in diagnosing the tumor was "a concurrent and a proximate cause." In conclusion, the doctor opines that, based upon a reasonable degree of medical certainty, had Dr. Subbiah diagnosed the tumor earlier or referred the plaintiff to a diagnostic facility, the plaintiff would have had a "fair chance (50/50) at regaining full use of his right leg in a brief recovery period, rather than the prolonged 24 month recovery period he underwent."

The defendant objected, both below and on appeal, to the plaintiff's offering the affidavit on the grounds that it contradicts the doctor's prior deposition testimony. The defendant submits that the deposition...