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News and Articles
December
04, 2006 Court
divided over proximate causation test A divided panel of the 1st District Appellate Court on Monday affirmed a $448,735 judgment against a doctor who failed to tell a patient her spinal surgery had been improperly performed by another doctor. Harold Mansmith's wrongful death suit against Dr. Anjum Hameeduddin presented a unique factual situation for the court, wrote Justice Rodolfo Garcia for the majority. The court divided over whether the plaintiff had shown proximate causation. Mansmith's late wife, Delphine, died in January 1998 of a brain stem abscess caused by a staph infection that developed after she got an epidural steroid injection to treat her back pain, the opinion said. Her widower then sued both Dr. R. Lawrence Ferguson, the doctor that performed a 1996 spinal surgery on Delphine, and Hameeduddin, who was her primary care physician. Hameeduddin had referred Mansmith to Ferguson for treatment of back pain and numbness in her leg, the opinion said. Ferguson diagnosed a bulging disc and spinal stenosis, or narrowing of the spaces in the spine, and performed surgery on Mansmith. According to the opinion, when Mansmith returned to her with pain after the surgery, Hameeduddin ordered an MRI that showed that Ferguson operated on the wrong vertebrae. The suit alleged that Hameeduddin failed to inform Ferguson, Mansmith, or other doctors about the error. Another physician subsequently recommended the steroid injection. Ferguson settled for $750,000 before the jury reached its verdict, the opinion said. Although the jury awarded Harold Mansmith $1,198,735, the judgment against Hameeduddin was $448,735 with the setoff of Ferguson's settlement. At issue on appeal was whether the trial judge, Cook County Associate Judge John B. Grogan, erred in denying Hameeduddin's motions for a directed verdict and for judgment notwithstanding the verdict. Hameeduddin argued the rulings were in error because the plaintiff failed to establish that her treatment deviated from the standard of care or that it was a proximate cause of Delphine Mansmith's death. The appeals court disagreed, finding that evidence supported the jury's finding that Hameeduddin had a duty to inform Delphine Mansmith of Ferguson's negligence and deviated from that standard. The issue of proximate cause was thornier, with the the majority finding that the evidence supported the jury's ruling. Justice Warren D. Wolfson, in a dissent, said that Mansmith pursued a theory ''that never has been approved by any reported decision in this state.'' That theory, he wrote, was that Hameeduddin's failure to inform Delphine Mansmith that Ferguson operated in the wrong place was a proximate cause of the injuries that occurred when another doctor recommended the steroid injection that caused the staph infection that killed her. ''The factual chain from defendant's lack of candor to the acute staph infection that killed Mrs. Mansmith has been stretched beyond the breaking point,'' Wolfson wrote. ''The evidence invites the jury to guess and speculate.'' But, writing for the majority in its 38-page-opinion, Garcia said the circumstantial evidence was enough for the jury to make a causal connection between Hameeduddin's negligence and the injuries Mansmith ultimately suffered. ''A reasonable inference can be drawn, as the jury apparently did, that Mrs. Mansmith agreed to undergo a different surgery because, as the evidence suggests, she had the misimpression that the first surgery was performed properly and did not provide any relief,'' Garcia wrote. Garcia said it was also reasonable to infer that if Mansmith had all the information, she would have opted for spinal surgery on the correct vertebrae instead of the injection. Justice Leslie E. South concurred in the majority opinion. Garcia wrote that the court was guided by an informed consent case cited by the plaintiff, Coryell v. Smith, 274 Ill.App.3d 543, 546 (1995). But, Garcia wrote, the court did not necessarily agree with a statement in Coryell, that the ''plaintiff was not required to present expert evidence specifically as to proximate causation.'' Mansmith had similarly argued that expert evidence of causation was not required in his case. But Garcia wrote that what the court took from the Coryell case is that certain non-medical judgments are reserved to the patient alone. ''While there was some medical evidence on the issue of proximate causation in the record, this case, to a certain extent, also involves Mrs. Mansmith being deprived of the medical evidence to determine for herself what surgical procedure to undergo,'' Garcia wrote. In this case, he said, enough evidence was presented for the jury to make a determination as to what Delphine Mansmith would likely have done if she had all the information. ''To require more would in effect preclude Mrs. Mansmith, and others like her … from receiving any relief for professional negligence that was clearly shown and clearly deprived her of making a non-medical judgment reserved to her alone.'' In his dissent, Wolfson wrote that while Mansmith cited informed-consent cases to support his contention that he did not have to present expert testimony to establish proximate cause, the Illinois Supreme Court has never adopted that proposition in informed consent cases. But, Wolfson wrote, this is not an informed-consent case. Wolfson said the plaintiff categorized it as a ''failure to inform'' case, but offered no support for the proposition that such a theory exists in Illinois. Wolfson said Dr. George Miz, the doctor who recommended the epidural, was never asked, at his deposition or at trial, whether he would have recommended surgery instead if he had been told Ferguson might have operated at the wrong level of the spine. ''That omission speaks volumes,'' Wolfson wrote. ''We are left with no credible evidence that the defendant's failure to inform Mrs. Mansmith had substantial impact on Dr. Miz's decision to use the epidural injection.'' Harold Mansmith was represented on appeal by Samuel Briones of Briones, Harvey & Trevino in Homewood and Peter V. Bustamante of Chicago. Bustamante said the appeals court's ruling was not clear-cut in terms of showing how to establish proximate cause in this type of case. He argues that rather than expert evidence, a plaintiff should be able to present an objective basis for a finding of causation, and said that is the argument he will pursue if the case is appealed. Hameeduddin was represented by Marc D. Ginsberg, Cheryl A. Warzynski, and Sonia A. Desai of Dykema Gossett PLLC. Ginsberg could not be reached for comment Monday afternoon. Harold Mansmith et al. v. Anjum Hameeduddin, No. 1-04-1243.
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March
28, 2007 Court
turns away 376 pleas for review The Illinois Supreme Court on Wednesday declined to review a medical malpractise case in which the 1st District Appellate Court split on the question whether the plaintiff had shown proximate causeation. The case was one of 376 cases in which the high court denied petitions for leave to appeal. In 106 of those cases, 98 of them criminal, the court issued supervisory orders. In one of those supervisory orders, the high court declined to hear an appeal from Ford Motor Co. and Mazda Motor Corp. in a design defect claim stemming from a fatal accident. The high court ordered the 1st District Appellate Court to vacate its ruling against the automakers and reconsider the lawsuit in the light of a recent Illinois Supreme Court ruling to determine whether a different result is warranted. In the medical malpractice case, widower Harold Mansmith's wrongful-death suit against Dr. Anjum Hameeduddin alleged his late wife's primary care docot discovered that a neurosurgoen had operated on the wrong part of her spine, but failed to tell her. Delphine Mansmith subsequently was given a epidural steroid injection to treat her continuing back pain, and the injection lead to a deadly staph infection. The appelate court affirmed a $448,735 judgment against Hameeduddin. Justice Rodolfo Garcia wrote for the majority that there was enough evidence for the jury to make a casual connection between Hameeduddin's negligence and Delphone Mansmith's subsequent injuries. The court accepted Mansmith's argument that his wife agreed to the steroid injection because she wrongfully believed the first surgery had been done correctly and did not relieve her pain. But Justice Warren D. Wolfson disagreed. Harold Mansmith was represented by Samuel Briones of the Law Firm of Briones, Harvey & Trevino. Download the article here in .pdf format
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