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SECOND DIVISION
MAY 22, 2001

No. 1-00-3353

Plaintiff-appellant, Carolyn Mengelson, filed suit againstdefendant-appellee, Ingalls Health Ventures, alleging thatdefendant was negligent for failure to hire a competent andskilled phlebotomist for drawing blood and that as a direct andproximate result of the negligent acts, the plaintiff sufferedinjuries. At the close of plaintiff's case in chief, IngallsHealth Ventures moved for a directed verdict. The motion fordirected verdict was granted. Plaintiff appeals from the ordergranting the motion for directed verdict. The major issue uponappeal is whether the trial court erred in granting defendant'smotion for directed verdict.

We affirm.

BACKGROUND

On February 23, 1993, plaintiff visited Ingalls FamilyHealth Center (Ingalls) in Calumet City, Illinois, for an annualphysical examination required by her employer. That physicalincluded a routine blood draw.

Plaintiff testified at trial that during the physicalexamination, Theresa Chavez, a medical assistant for Ingalls,came into the room in which plaintiff was lying down to draw herblood. Chavez placed a tourniquet on plaintiff's left arm andsupported plaintiff's elbow with her hand. Plaintiff testifiedthat Chavez looked for a vein in her left arm but did not palpatefor a vein before she inserted the needle. Chavez askedplaintiff whether it had always been difficult to find a vein onher arm. Plaintiff answered in the negative and asked Chavez touse her right arm.

Despite plaintiff's request, Chavez inserted the needle intoplaintiff's left arm, but was unsuccessful in drawing blood onthe first attempt. Plaintiff again asked Chavez to use her rightarm for the blood draw. Plaintiff testified that Chavez then"backed the needle out and then injected it deeper into my skinand started poking and fanning around with the needle under myskin in a fanning-out type motion." Chavez still did not obtainblood from plaintiff. Plaintiff asked Chavez to switch to theright arm for the third time. Plaintiff stated that by Chavez'sthird attempt to draw blood from the left arm, she began to feel"nauseated because of the procedure." Plaintiff testified thatas blood finally began to trickle into the vial, she felt a"sharp, stabbing pain" in her inner arm. Plaintiff stated thatshe told Chavez that she was in "excruciating" pain and asked herto stop, but Chavez said "'No, I think I'm getting it now.'"Chavez then removed the vial attached to the needle and attacheda second vial. Plaintiff, again, asked her to stop but Chaveztold her, "'If you can just hold still, it will only be a fewmore seconds.'"

When Chavez finally withdrew the needle, plaintiff stillfelt "excruciating" pain in her left arm. Plaintiff remained atIngalls for about 45 to 60 minutes after the blood draw and wasseen by a doctor. She told the doctor about her pain and thedoctor told her that her arm was in a "spasm" but the medicalassistant could not have gone deep enough to hit a nerve.

Plaintiff stated that she was nauseous the day following theblood draw and left work early due to the pain. Plaintiff calledIngalls at 6 p.m. on the evening of February 24, 1993, andnotified it of her discomfort. She was advised to seek emergencytreatment at an emergency clinic near her home. The emergencyclinic gave the plaintiff pain medication and advised her to goto a hospital. Plaintiff's husband drove her to EdwardsHospital. The hospital gave plaintiff some additional painmedication and, because her injury was not considered anemergency, she made an appointment with a neurologist for thefollowing morning.

Plaintiff testified that for weeks after the blood draw atIngalls, she felt a "burning sensation under the skin likethere's just like fire breathing under the skin" of her left arm. Plaintiff also complained of sleeplessness. At one point,plaintiff wore a sling on her left arm.

On May 19, 1993, plaintiff was in an automobile accident. After the collision, she felt a burning in the middle of herneck. Plaintiff stated that she experienced "continued burning,aching, the same sort of sensations" in her left arm aspreviously. Plaintiff participated in occupational therapy forher left hand and arms and physical therapy for her neck andshoulders.

By November 1993, plaintiff's arm began "changing colors"and became more painful. Nerve blocking treatments offered sometemporary relief. Eventually, plaintiff was transferred from heremployment position because it required travel and carrying itemsin excess of her doctor's recommendation.

Dr. Timothy Lubenow testified by way of evidence deposition. He stated that he saw plaintiff in November 1993. In light ofthe physical exam he conducted and plaintiff's medical history,Dr. Lubenow diagnosed plaintiff as having reflex sympatheticdystrophy (RSD). He testified, "I believe that her condition didresult from that blood draw." Dr. Lubenow further testified:

"Well, the basis of my opinion would be that from a timeframe standpoint, it all fits rather well. We know shedeveloped her left arm pain following the left arm draw. It's known that she was seen in the emergency room for painjust a couple of days after that procedure. Dr. LeMarre inhis initial referral indicated that she had that and thatwas her history, and that was the reason that he had her getan EMG test to test for the muscle function of that arm. And so all of those things served to form the reasons for Ibelieve her condition resultant from that blood draw."

Dr. Hooshang Hooshmand's videotaped deposition was playedbefore the jury. Dr. Hooshmand saw plaintiff in August 1996. Plaintiff's records revealed that in July 1996 she was diagnosedwith a mild stage of RSD in her arm and neck. Dr. Hooshmanddiagnosed plaintiff as having "RSD due to insertion of needleinto the vein and that had resulted in the series of unexpectedcomplications."

On cross-examination, defense counsel asked Dr. Hooshmand: "Another example that I think you have used [in the past] toexplain this concept [of venipuncture RSD] is like winning thereverse lotto; is that correct? *** About a 1-in-6 millionchance of getting this disease process?" Dr. Hooshmandresponded, "That's right." Defense counsel also asked Dr.Hooshmand, "Doctor, do you have an opinion in this case whetherthe venipuncture was performed negligently?" Dr. Hooshmandanswered, "I cannot have an opinion because I was not there and Idon't have any proof that there was negligence." Defense counsellater asked, "It's your opinion in this case that the plaintiffwas simply a very unfortunate lady who had a very tragic rareoccurrence occur to her?" Dr. Hooshmand, responded, "That'scorrect, sir."

Registered nurse Sabine Niedzwiecki testified as an expertregarding the standard of care for blood draw procedures. Shestated that one should ask the patient his or her arm preference,make sure that the vein was palpable or visible and ensure thatit had "good bounce." The drawer should then attempt to draw theblood, and if the patient complains of any type of pain, thedrawer should immediately stop. Relying on the account of eventsin plaintiff's deposition and Dr. Hooshmand's deposition, NurseNiedzwiecki stated:

"I feel [the medical assistant] did not follow the standardof care. *** It was evident she did not locate a good vein. To try to stick somebody just for the purpose of sticking isnot part of the standard procedure. Also the fanning andthe redigging and the going back and forth is notappropriate according to the standard of care to attempt ablood specimen. And I guess thirdly once a patient tellsyou to stop it hurts they're in charge, they're the boss,you have to-- you have to listen to them, you have to stopand she did not stop."

Medical assistant Theresa Chavez testified during theplaintiff's case in chief that, in the 13 years that she workedfor Ingalls, she conducted approximately four to five blood drawsdaily. She stated that she would never insert a needle into apatient's arm if she could not feel a vein. She stated thatwhile there is no set limit, it was her practice to attempt tofind a vein "up to two times max on each arm." Chavez testifiedthat the plaintiff did not complain of any pain during the blooddraw and, if she had, that would have been something that shewould have recorded on plaintiff's medical chart. Chavezrecalled that plaintiff said "ouch" upon removal of the needlebut did not otherwise complain.

At the close of plaintiff's evidence, Ingalls moved for adirected verdict on the ground that plaintiff failed to presentany expert testimony establishing that the medical assistant'salleged breach of the standard of care proximately causedplaintiff's injury.

At the hearing on the motion for a directed verdict, thetrial court judge stated:

"As we've discussed yesterday, there's no question inthis case that the nurse expert has established that thevein puncture was negligently performed. *** Secondly,there's no question here that both doctors established thatthe venipuncture caused the RSD. *** The pivotal question isis it the proximate cause as required for the Plaintiff'scase to stand. Merely a cause, in fact, is not sufficient.

* * *

And here the record speaks for itself and there isabsolutely no expert testimony here connecting thenegligently conducted venipuncture with the resulting RSD."

Relying on Saxton v. Toole, 240 Ill. App. 3d 204, 608 N.E.2d 233(1992), the trial judge granted the defendant's motion fordirected verdict on September 1, 2000. Plaintiff now appeals.

ANALYSIS

Standard of Review

The appellate court reviews the grant of a directed verdictde novo. Susnis v. Radfar, 317 Ill. App. 3d 817, 825, 739 N.E.2d960 (2000). A directed verdict will be affirmed where theevidence, viewed in the light most favorable to the plaintiff, sooverwhelmingly favors the defendant that no contrary verdictbased on that evidence could ever stand. Mort v. Walter, 98 Ill.2d 391, 396, 457 N.E.2d 18 (1983). A directed verdict isappropriate where the plaintiff has not established a prima faciecase. Saxton, 240 Ill. App. 3d at 210.

I

Plaintiff contends that she established that defendant'snegligence was the proximate cause of her injury. Upon appeal,plaintiff asserts that the injury would not have occurred if theneedle had not been inserted into her left arm. Defendant, onthe other hand, contends that the plaintiff has not shown thatany purported act of negligence caused her injury. Defendantfurther contends that plaintiff's own experts negated anycontention that her RSD was a likely consequence of the medicalassistant's conduct.

In order to prove a case of negligence against a medicalprofessional, the plaintiff must establish the following: (1)proper standard of care against which the professional's conductmust be measured; (2) negligent failure to comply with thestandard; and (3) the injury had as one of its proximate causesthe negligence of the professional. Saxton, 240 Ill. App. 3d at210. The plaintiff bears the burden of establishing eachelement. Saxton, 240 Ill. App. 3d at 210.

A plaintiff sustains her burden by proving, generallythrough expert testimony, that defendant's breach of theapplicable standard of care is more probable than not the causeof plaintiff's injury. Newell v. Corres, 125 Ill. App. 3d 1087,1092, 466 N.E.2d 1085 (1984). The weight to be given to medicalexpert testimony is for the trier of fact to determine. Suttlev. Lake Forest Hospital, 315 Ill. App. 3d 96, 103, 733 N.E.2d 726(2000). In the absence of expert testimony that an act by thedefendant could have, within a reasonable degree of medicalcertainty, caused the plaintiff's injuries, it would beimpossible for a jury verdict in plaintiff's favor to stand, anda directed verdict would be appropriate. Saxton, 240 Ill. App.3d at 210.

In the instant case, plaintiff presented testimony fromnurse Niedzwiecki which provided the standard of care for drawingblood. Niedzwiecki also testified that she considered the blooddraw performed on plaintiff to have been a breach of thatstandard of care. The question upon appeal is whether plaintiffdemonstrated that the blood draw was negligently performed andwhether that negligence was the proximate cause of her injury.

Proximate cause is that cause which produces an injurythrough a natural and continuous sequence of events unbroken byany effective intervening cause. Block v. Lohan Associates,Inc., 269 Ill. App. 3d 745, 756, 645 N.E.2d 207 (1993). Proximate cause is made up of two elements, cause in fact andlegal cause. First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 257-58, 720 N.E.2d 1068 (1999). Cause in fact existswhere there is a reasonable certainty that a defendant's actscaused the injury or damage. First Springfield, 188 Ill. 2d at258. Legal cause, by contrast, is essentially a question offoreseeability. First Springfield, 188 Ill. 2d at 258. Proximate cause is not established, however, where the causalconnection is "'contingent, speculative or merely possible.'"Newell, 125 Ill. App. 3d at 1092, quoting Manion v. Brant OilCo., 85 Ill. App. 2d 129, 136, 229 N.E.2d 171 (1967).

Plaintiff's argument upon appeal fails because while thereis testimony that the medical assistant's actions breached thestandard of care, there is no expert testimony that the breach ofthe standard of care was the cause of her injury. Plaintifffailed to establish that the violation of the standard of careregarding the blood draw in her left arm was the legal cause ofthe RSD. In fact, Dr. Hooshmand stated that the possibility ofcontracting RSD from a blood draw was a 1 in 6 million chance. Assuming plaintiff's recount of the blood draw is true, there hasbeen no evidence presented that the injury was a foreseeableresult of the medical assistant's actions. As the trial courtcorrectly ruled, it is essential that plaintiff present experttestimony that establishes that the medical assistant's actionsin drawing the blood was negligent and that the negligence causedthis injury.

While relying on Suttle v. Lake Forest Hospital, 315 Ill.App. 3d 96, 733 N.E.2d 726 (2000), plaintiff also asserts thatthe trial court improperly invaded the jury's role in determiningproximate cause. It is well established that issues involvingproximate cause are fact specific and therefore uniquely for thejury's determination (Holton v. Memorial Hospital, 176 Ill. 2d95, 107, 679 N.E.2d 1202 (1997)), unless there is no materialissue regarding the matter or where only one conclusion isclearly evident (Williams v. University of Chicago Hospitals, 179Ill. 2d 80, 84, 688 N.E.2d 130 (1997)). Plaintiff asserts thatthe breach of the standard of care by the medical assistant,which was testified to by an expert nurse witness in plaintiff'scase in chief, raises questions for the jury to decide. Wedisagree.

In Suttle, one issue involved the velamentous insertion ofthe umbilical cord into the placenta inside the plaintiff, Ms.Suttle, and injuries suffered by her newborn child. Thedefendant contended that the plaintiff failed to prove proximatecause. Suttle, 315 Ill. App. 3d at 98. A treating physiciantestified that his treatment would have been the same regardlessof whether he was aware of the velamentous insertion. However,there was also testimony that the treating physician haddiagnosed Ms. Suttle's newborn child as suffering fromrespiratory distress syndrome, rather than hypovolemic shock,because he was unaware of Ms. Suttle's velamentous insertion. InSuttle, the Illinois Appellate Court held that there remained afactual issue as to what the treating physician would have donehad he known the condition of the placenta. Suttle, 315 Ill.App. 3d at 104-05.

In the instant case, the issue is whether, as a matter oflaw, plaintiff has established that her injuries were proximatelycaused by the negligence of defendant's phlebotomist, TheresaChavez. In our view, plaintiff has not met that burden. Nomedical testimony has been adduced to establish to a reasonabledegree of medical certainty that the RSD or "complex regionalpain syndrome" that plaintiff suffers was the result of thenegligence of the medical assistant's actions. See Pedrick v.Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504(1967).

For the foregoing reasons, the trial court's grant of thedirected verdict in favor of defendant is affirmed.

Affirmed.

CAHILL, P.J., and McBRIDE, J., concur.