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FIRST DIVISION
September 28, 2001

Reginald Reed filed a medical malpractice action againstJackson Park Hospital Foundation (JPH), Dr. Ivy Sandifer, Dr.Larry Mitchell, and Medical Emergency Care Associates (MECA)seeking damages for the loss of his right eye. Prior to trial,the trial court granted defendants' motion in limine to bar thetestimony of plaintiff's expert witness. JPH, Dr. Mitchell, andMECA then moved for summary judgment on the basis that, withoutthe expert witness' testimony, plaintiff could not prove theproximate cause element of his case. The trial court granted themotion for summary judgment. Plaintiff-appellant appeals fromthe order of the circuit court entered against him that granteddefendants' motion for summary judgment. The primary issues uponappeal are: (1) whether the circuit court erred in ruling,pursuant to defendants' motion in limine, to bar the opinion ofplaintiff's expert witness; and (2) whether, under the "lostchance" doctrine, the court erred in granting defendant's renewedmotion for summary judgment.

BACKGROUND

On the evening of July 3, 1995, plaintiff was assaulted byunknown assailants in the 6500 block of South Kimbark in Chicago,Illinois. Plaintiff was hit in the head and right eye with"stick." He was transported to Jackson Park Hospital where hereceived emergency care. Dr. Larry Mitchell treated plaintiff inthe JPH emergency room. Plaintiff received stitches on the backof his head and on his right eyelid and was released on July 4,1995. He was instructed to return to the emergency room asneeded, to return in three days to have his wounds checked, andto return in seven days to have his stitches removed. Plaintiffrecalls that his right eye was not bandaged but it was swollenshut.

On July 4, 1995, plaintiff's girlfriend said to him, "Youreye is bleeding." Plaintiff's mother made a similar observationon July 6, 1995. Plaintiff testified that he did not look at thefluid or return to the hospital after being told about theleakage.

On July 7, 1995, plaintiff went to Veteran's Administration(VA) hospital, where he was told, "You're going to have to havesurgery." He was then examined by Dr. Alice Lyon and third-yearresident, Dr. Leonard Gurevich. Dr. Lyon was the attendingphysician that supervised Dr. Gurevich. They found lacerationson plaintiff's eye. It was determined that the eye could not besaved. Plaintiff's right eye was removed on July 11, 1995. Plaintiff testified that an unidentified doctor told his motherthat "maybe" his eye could have been saved had there been otheraction in his initial hospital visit. Plaintiff received aprosthetic eyeball in October 1995.

In January 1996, plaintiff filed a complaint against JPH,Dr. Larry Mitchell, and Dr. Ivy Sandifer alleging medicalmalpractice and seeking damages for the loss of his right eye dueto defendants' alleged medical malpractice. Plaintiff lateramended his complaint to add MECA. Dr. Sandifer was laterdismissed. Plaintiff's first amended complaint alleged that Dr.Ivy Sandifer, Dr. Larry Mitchell, and MECA failed to usereasonable care in examining and treating plaintiff's right eye. Defendants denied all material allegations of negligence. Plaintiff ultimately asserted that defendants were liable underthe "lost chance" doctrine.

During deposition, Dr. Leonard Gurevich testified that hewas board certified in ophthalmology in 1997. He first sawplaintiff on July 7, 1995, as a patient at the VA hospital. Dr.Gurevich was a third-year resident in ophthalmology and the chiefresident at that time. Dr. Gurevich's July 8, 1995, examinationof plaintiff revealed that plaintiff had a "ruptured globe[,] ***a hyphema, which is blood in the antechamber, and revealed a lotof swelling of the lids." The following testimony was elicitedduring Dr. Gurevich's evidence deposition:

"MR. RABINOWITZ [plaintiff's attorney]: Do you have anopinion, based upon a reasonable degree of medicalcertainty, as to whether or not, as of July 7th, of 1995,the eye could have been saved?

THE WITNESS [Dr. Gurevich]: I don't think with medicalcertainty, the eye could have been saved.

Q. Doctor, do you have an opinion, based upon areasonable degree of medical certainty, if the injury to theeye was discovered on July 3rd-- on the evening of July 3rdor July 4th, is it more probable that the eye could havebeen saved?

* * *

THE WITNESS: No, I don't think to the medical degree ofcertainty the eye could have been saved.

* * *

MR. RABINOWITZ: Doctor, do you have an opinion, basedupon a reasonable degree of medical certainty, that if theinjury to the eye-- that if the injury to the eye had beendiscovered in the emergency room, would you have had abetter chance of saving the eye than on July 7th of 1995?

***

THE WITNESS: Yes, I think that's reasonable to say.

MR. RABINOWITZ: And what is the basis for your opinion,Doctor?

THE WITNESS: The basis is that as time went by and as thewound maintained, or was being opened, and as the eyestructures continued to be protruding, some of those eyevital structures perhaps could have been saved, but as thetime went by, that eliminated what little chance thatexisted.* * *

MR. RABINOWITZ: And do you have an opinion what effectthe, you know, the effect of time, from July 3rd to July7th, would have had on the corneal laceration?

* * *

THE WITNESS: Probably not.

MR. RABINOWITZ: So there probably would have been noeffect on the laceration?

A. Correct.

* * *

MR. RABINOWITZ: Okay. Doctor, at the time of the surgeryon July 7th, what was the condition of the uveal tissues?

THE WITNESS: The uveal tissues were prolapsed into thecorneosclera laceration or the wound.

Q. And what effect would that have on vision?

A. That would have adverse effect on vision.

Q. And is that one of the reasons why you recommended theenucleation?

A. Yes, that's one of the reasons.

Q. What effect would the time period from July-- in youropinion, based on a reasonable degree of medical certainty,what effect could the time period between July 3rd and theoperation of July 7th have had on those uveal structures?

* * *

THE WITNESS: As the eyeball is opened and as the uvealtissues are prolapsed, the time has adverse effect onsurvival of those tissues.

* * *

MR. RABINOWITZ: Doctor, do you have an opinion, basedupon a reasonable degree of medical certainty, if thesurgical treatment was given on the evening of July 3rd orJuly 4th, as opposed to July 7th, could the treatment havebeen more effective.

THE WITNESS: Yes, I think that's a fair statement to say.

MR. RABINOWITZ: And what do you based that on?

THE WITNESS: Again, based on the fact that as time wentby, the uveal tissues perhaps may have been saved in termsof repositing it back into the eye, as well as any bleedingthat may have occurred with time, which could further damagethe nerve and the vital organs of the eye.

* * *

MR. RABINOWITZ: Doctor, do you have an opinion, basedupon a reasonable degree of medical certainty, on thepercentage you would have had a better chance to save theeye if surgery had been performed on July 3rd or 4th insteadof July 7th?

A. I believe I testified in the beginning that it was atwenty percent chance.

Q. And why is that, Doctor?

A. Well, I felt that if the injury had been addressed ina timely manner, perhaps there was a small chance that theeye would have been sutured and/or the fact that some of theorgans of the eye, the uveal tissue, may have been repositedinto the eye."

Further testimony was elicited during Dr. Gurevich'sdeposition:

"MR.CAMARRA [defense counsel]: Would you agree with methat given the trauma in the ruptured globe, which Mr. Reedsustained in this particular case as a result of the traumathat was administrated to him during this beating, that moreprobably true than not, based upon a reasonable degree ofmedical and scientific certainty, that the outcome, i.e.,the loss of his eye, would have occurred whether it wasdiagnosed on July 3 or July 7?

A. Yes, I agree with that statement.

Q. With regard to this opinion that you have given Mr.Rabinowitz, that there was a potential of twenty percentchance of saving the eye had the diagnosis been made on July3 as opposed to July 7, would you agree with me that that'sjust a number you picked out of the air? You have no basisfor that number, correct?

A. Well, to some degree, I would agree with that, but notentirely.

Q. Let me go further. In reaching that opinion, it wouldbe fair to say that you don't know the condition of thisgentleman's eye when he actually was in the emergency roomon the evening of July 3 and the morning of July 4, is thatfair?

A. Fair.

* * *

Q. Without being able to examine Mr. Reed at the time ofthe trauma, when it was still fresh, would you agree with methat any opinion you have reached, with regard to thepotential for saving his eye, is based to a certain degreeon assumption and speculation?

A. Correct.

* * *

MR. BREAM [defense counsel]: Now, just so that I'm clearon this point, you would agree with me, wouldn't you, thatmore probably true than not, if this patient had undergonesurgery on July 4th, 1995, the outcome would have been thesame?

THE WITNESS: True.

Q. You would agree with me, wouldn't you, that you can'tsay, as you sit here today, to a reasonable degree ofmedical certainty, that any alleged delay in treatmentlessened the effectiveness of treatment for this eye?

A. True."

Discovery depositions were also taken of Dr. Jay and Dr.Lyon. Dr. Jay stated that he was given plaintiff's emergencyroom records from JPH and Dr. Gurevich's deposition and was askedto render an opinion on the standard of care given to plaintiff. Dr. Jay testified that assuming plaintiff had a corneosclerallaceration at the time of his treatment at JPH and that this hadbeen diagnosed at the time of the emergency room care, plaintiffwould have sustained the same outcome, a loss of his right eye. Dr. Jay stated that he had no opinion as to whether the emergencyroom physician should have opened plaintiff's eye or as towhether he should have ordered an ophthalmological consultregarding the injury. He stated, "This is really in the realm ofthe emergency room physicians which I have no expertise in." Dr.Jay testified that "the damage of the globe was so extensive atthe time of the initial injury that the eye was unsalvageableimmediately after the trauma." Dr. Jay further testified thatthe timing of the surgery would not have affected the outcomegiven the extent of the injury.

Dr. Lyon was the attending physician and Dr. Gurevich'ssupervisor when plaintiff was treated at VA hospital. Dr. Lyonstated in her deposition that she did not read the records fromJPH, but briefly reviewed those from VA hospital. Prior toplaintiff's exploratory surgery, Dr. Lyon stated that sheinformed plaintiff and his family that, based upon the conditionof his eye, the likelihood of any useful vision or any vision atall was very small. After the exploratory surgery of plaintiff'sright eye, Dr. Lyon determined that there was a very extensivelaceration of plaintiff's eye that involved a significant portionof the sclera, retina, and uveal. She was unable to completelysuture the full line of the laceration and she gave "verysignificant thought to enucleation [removal]." Dr. Lyon did notperform the enucleation of plaintiff's eye. The eye was removedby another retinal surgeon. Dr. Lyon would not opine as towhether surgical intervention would have made a difference inplaintiff's outcome.

Dr. Mitchell of JPH and MECA filed a motion for summaryjudgment in September 1997. Defendants' first motion was deniedin May 1998 by Judge Michael J. Hogan. Defendants' second motionwas denied by Judge Sophia Hall.

The affidavit of Dr. David Farkas was attached toplaintiff's March 1998 response to defendant's motion for summaryjudgment. The affidavit indicated that JPH and Dr. Mitchell werenegligent and did not comply with the requisite standard of carein failing to: attempt to examine plaintiff's eye; orderappropriate diagnostic studies; and order radiographs of thefacial bones or orbits.

In June 2000 this matter was assigned to Judge BarbaraDisko. Dr. Mitchell, MECA and JPH filed motions in limine to barthe testimony of Dr. Gurevich on the issue of proximate cause. Jackson Park Hospital also filed a motion to renew its motion forsummary judgment. After oral argument, the court granted thedefendants' motion in limine and the renewed motions for summaryjudgment. The court stated, "I don't believe the opinions that[Dr. Gurevich] gave are reliable or legally sufficient toestablish proximate cause or to meet the [Holton] standard;therefore, the motion will be granted." Dr. Gurevich was "barredfrom offering opinion testimony at the time of trial as towhether any act or omission proximately caused any injury to thePlaintiff." Based on the bar of testimony, the court alsogranted defendants' motion for summary judgment finding nogenuine issue of material fact and dismissed plaintiff's cause ofaction "against all defendants, with prejudice." Plaintiff nowappeals seeking vacation or reversal of the trial court's orderwith remandment.

We affirm.

ANALYSIS

I

Plaintiff in the instant case contends that the trial courterred in barring Dr. Gurevich's testimony. Plaintiff reasonsthat, "Since Dr. Gurevich is a qualified ophthalmologist whobased his opinion of proximate cause on his knowledge,examinations and findings concerning the Plaintiff, the opinionsexpressed by Gurevich were reliable." JPH responds that Dr.Gurevich's testimony was speculative and properly barred by thetrial court. Dr. Mitchell asserts that Dr. Gurevich's testimonywas based on "nothing more than guess and speculation."

The plaintiff in a medical malpractice case must establish: (1) the relevant standard of care; (2) that the defendantdeviated from the standard of care; and (3) that the deviationwas a proximate cause of the plaintiff's injury. Saxton v.Toole, 240 Ill. App. 3d 204, 210, 608 N.E.2d 233 (1992). Plaintiff sustains his burden by proving, generally throughexpert testimony, that defendant's breach of the applicablestandard of care is more probably than not the cause ofplaintiff's injury. Borowski v. Von Solbrig, 60 Ill. 2d 418,424, 328 N.E.2d 301 (1975). The causal connection may not becontingent, speculative, or merely possible. Saxton, 240 Ill.App. 3d at 210-11.

Expert testimony is admissible if the proffered expert isqualified as an expert by knowledge, skill, experience, training,or education, and the testimony will assist the trier of fact inunderstanding the evidence. See Grant v. Petroff, 291 Ill. App.3d 795, 801, 684 N.E.2d 1020 (1997). The decision of whether toadmit expert testimony is within the sound discretion of thetrial court (People v. Miller, 173 Ill. 2d 167, 187, 670 N.E.2d721 (1996)), and a ruling will not be reversed absent an abuse ofthat discretion (People v. Reid, 179 Ill. 2d 297, 313, 688 N.E.2d1156 (1997)).

The issue at hand in the instant case is whether the circuitcourt erred in barring the opinion of Dr. Gurevich. Aninstructive case is Balzekas v. Looking Elk, 254 Ill. App. 3d529, 532, 627 N.E.2d 84 (1993). In that case, the trial courtexcluded all evidence that indicated that the decedent had throatcancer, that his life expectancy would be decreased when comparedto the general population, and his smoking and surgical history. Defendants wished to present the testimony of decedent'semergency room doctor. Balzekas, 254 Ill. App. 3d at 534. Thetrial court excluded his testimony finding that it was notspecific enough to justify its admission. One of the defendants'arguments upon appeal was that the trial court erred in excludingthe doctor's statements that the decedent's life expectancy waslower than the average for a male person of similar age. Balzekas, 254 Ill. App. 3d at 532. The appellate court held thatthe trial court correctly found that the proffered testimony ofthe doctor was "too vague and uncertain to justify itsadmission." Balzekas, 254 Ill. App. 3d at 534. The courtreasoned that the doctor would not have had access to the type ofinformation that would be necessary for him to accuratelyevaluate the decedent's long-term prognosis and to determine withany kind of certainty a reasonable estimate of his lifeexpectancy. Balzekas, 254 Ill. App. 3d at 534.

Another instructive case is Gariti v. Karlin, 127 Ill. App.2d 166, 262 N.E.2d 179 (1970). In Gariti, the medical witnessfor the defense made several assumptions on which he based hisopinion. Gariti, 127 Ill. App. 2d at 172. Specifically, themedical witness based his opinion on the assumption that one ofthe parties involved in the car accident was a diabetic and thathe swerved across the center line before the collision. Thecourt, however, noted that there "was absolutely no evidence inthe record on which any expert could properly express anopinion." Gariti, 127 Ill. App. 2d at 172. The court furtherreasoned that since the doctor's testimony was not proven, it was"highly speculative and improper." Gariti, 127 Ill. App. 2d at173.

Here, Dr. Gurevich presented the following testimony:

"THE WITNESS: The basis is that as time went by and asthe wound maintained, or was being opened, and as the eyestructures continued to be protruding, some of those eyevital structures perhaps could have been saved, but as thetime went by, that eliminated what little chance thatexisted.

* * *

A. Well, I felt that if the injury has been addressed ina timely manner, perhaps there was a small chance that theeye would have been sutured and/or the fact that some of theorgans of the eye, the uveal tissue, may have been repositedinto the eye.

* * *

Q. [Mr. Camarra] With regard to this opinion that youhave given Mr. Rabinowitz, that there was a potential oftwenty percent chance of saving the eye had the diagnosisbeen made on July 3 as opposed to July 7, would you agreewith me that that's just a number you picked out of the air?You have no basis for that number, correct?

A. Well, to some degree, I would agree with that, but notentirely.

* * *

Q. Without being able to examine Mr. Reed at the time ofthe trauma, when it was still fresh, would you agree with methat any opinion you have reached, with regard to thepotential for saving his eye, is based to a certain degreeon assumption and speculation?

A. Correct.

* * *

Q. Prior to Mr. Reed, is it fair that you had never beeninvolved in treating a patient with an extens-- as anextensive a laceration and loss of the contents of the eyeas existed with Mr. Reed?

A. Correct.

Q. Okay. You had no personal experience, prior to Mr.Reed, with that type of a patient?

A. Correct.

* * *

Q. In this case, you've given us an opinion withoutbenefit of other experience with this extensive alaceration, without any research work and without anymedical literature to support it, fair?

A. Correct." (Emphasis added.)

There was no evidentiary basis for the assumptions made bythe doctor. Experts cannot base opinions on what may haveoccurred or what the expert believed might have happened in aparticular case. See Schuler v. Mid-Central Cardiology, 313 Ill.App. 3d 326, 335, 729 N.E.2d 536 (2000), citing Dyback v. Weber,114 Ill. 2d 232, 244, 500 N.E.2d 8 (1986). Dr. Gurevich did notdemonstrate that his opinions were based on anything more than aneducated guess. He did not have the experience nor did heindicate a reliable, credible foundation for his conclusionsregarding the actions the emergency room physicians or thesalvageability of plaintiff's right eye. From his own testimony,Dr. Gurevich lacked the knowledge of the condition of plaintiff'seye when he entered JPH's emergency room and could not present areliable opinion upon which to base his conclusions. We agreewith the trial court that Dr. Gurevich's testimony is notreliable, and therefore, the court did not abuse its discretionin barring his testimony.

II

Plaintiff contends that Dr. Gurevich's testimony is legallysufficient on the issue of proximate cause. Plaintiff concedesthat "it is more probable than not that the Plaintiff would havelost his eye even if treatment to the Plaintiff's eye had beengiven on July 3, 1995." Nonetheless, plaintiff maintains that"the failure of Dr. Mitchell to open the eye, diagnose thecondition of the eye and refer the Plaintiff for the appropriatetreatment, lessened the effectiveness of treatment." The issueis whether, under the "lost chance" doctrine, the trial courterred in granting defendants' renewed motion for summaryjudgment.

Defendants respond that their renewed motion for summaryjudgment was properly granted because plaintiff lacked sufficientevidence to prove proximate cause after Dr. Gurevich's opinionswere barred.

The concept of "lost chance" was introduced in NorthernTrust Co. v. Louis A. Weiss Memorial Hospital, 143 Ill. App. 3d479, 493 N.E.2d 6 (1986). Upon appeal in Northern Trust, thedefendant maintained that the evidence could not support thetrial court's finding that the hospital's failure to provide aspecially trained nurse proximately caused the baby's braindamage. However, the appellate court noted that there wasevidence in the record to support the conclusion that the failureto administer sufficient amounts of oxygen was a substantialfactor in contributing to the baby's injuries. Northern Trust,143 Ill. App. 3d at 488. The court held that the evidencesupported the jury's conclusion that the hospital's failure toprovide a specially trained nurse to supervise the nurseryproximately caused a delay in treatment and the delay was asubstantial factor contributing to her injury. Northern Trust,143 Ill. App. 3d at 488.

Plaintiff in the instant case cites to Wodziak v. Kash, 278Ill. App. 3d 901, 633 N.E.2d 138 (1996), to support hiscontention that the delay in surgical treatment lessened thechance of saving his right eye. In Wodziak, the plaintiff'sdecedent went to a hospital emergency complaining of shortness ofbreath. At the hospital, a blocked-throat whistle was diagnosedand decedent was released. Two days later, at another hospital,doctors discovered a tracheal obstruction. Emergency surgery wasconducted. During surgery, the patient suffered a stroke andsuffered permanent brain damage. The complaint alleged that thedelay in investigating the cause of plaintiff's conditionpostponed effective treatment and was the proximate cause of thepatient's injury. An expert witness testified that the treatingphysician's conduct in that case delayed the definitive treatmentof plaintiff's condition. Wodziak, 278 Ill. App. 3d at 912. The court held that the expert testimony was sufficient toestablish that the initial treating physician's delay indiagnosis lessened the effectiveness of subsequent treatment. Wodziak, 278 Ill. App. 3d at 912. Unlike the instant case, theexpert in Wodziak testified to a specific procedure that waspostponed by the negligently delayed diagnosis. The plaintiff'sexpert in Wodziak gave testimony that established that an earlierdiagnosis would have provided the plaintiff with a substantialchance of more effective treatment. Wodziak, 278 Ill. App. 3d at908-09.

Plaintiff also relies on Holton v. Memorial Hospital, 176Ill. 2d 95, 679 N.E.2d 1202 (1997). Relative to the "lostchance" doctrine, Holton indicated that, "To the extent aplaintiff's chance of recovery or survival is lessened by thedefendant's malpractice, he or she should be able to presentevidence to a jury that the [defendant's] malpractice, to areasonable degree of medical certainty, proximately caused theincreased risk of harm or lost chance of recovery." Holton, 176Ill. 2d at 119. In Holton, the testifying doctor indicated thathe would have taken a different course of treatment had he beenaccurately and promptly notified of his patient's progressiveparesis. The plaintiff's expert testified that the conditionthat plaintiff suffered is one that if diagnosed within 24-hoursof the occurrence of paresis, patients often have "'an excellentneurological recovery.'" Holton, 176 Ill. 2d at 103. Theplaintiff's expert testified to a reasonable degree of medicalcertainty what the preferred treatment for the plaintiff wouldhave been had the doctors been given the opportunity to properlydiagnose her condition. Holton, 176 Ill. 2d at 108.

In contrast, Dr. Gurevich in the instant case could nottestify that to a reasonable degree of medical certainty that hadJPH emergency room doctors had diagnosed the condition ofplaintiff's eye soon after the injury, his eye could have beensaved. In fact, Dr. Gurevich testified that plaintiff's righteye most likely would have been removed regardless of whenexamination and treatment was rendered.

An instructive case is Townsend v. University of ChicagoHospitals, 318 Ill. App. 3d 406, 741 N.E.2d 1055 (2000). InTownsend, the defendants were accused of failing to order orperform imaging studies of decedent's abdomen in the emergencyroom and failing to transfer her to an intensive care unit inlight of her worsening condition. On appeal, the defendantsasserted that they were entitled to judgment notwithstanding theverdict because plaintiff failed to present any evidence ofproximate cause and that they were entitled to a new trialbecause of various trial errors. Townsend, 318 Ill. App. 3d at408. The appellate court agreed. Townsend, 318 Ill. App. 3d at408. The appellate court reasoned that the record did notdisclose any potential treatment for the decedent's condition andthe jury was "left to speculate about proximate cause." Townsend, 318 Ill. App. 3d at 414. In the court's view, theexperts' testimony that "[decedent's] chances for survival wouldgo from 0% to 60% if 'relief' had been provided" did not satisfythe "causation gap." Townsend, 318 Ill. App. 3d at 414-15. Inthe instant case, Dr. Gurevich's testimony that plaintiff mayhave had a 20% chance of saving his eye had it been examined byJPH emergency room physicians did not provide the necessary nexusbetween JPH's actions and the subsequent enucleation ofplaintiff's right eye. Essentially, Dr. Gurevich's testimony didnot satisfy the causation gap.

"In order to establish proximate cause, plaintiff's evidencemust show to a reasonable degree of medical certainty that thenegligent delay in diagnosis lessened the effectiveness oftreatment." Wodziak, 278 Ill. App. 3d at 912. Our analysisestablishes that, Dr. Gurevich's testimony, even if it wereallowed into evidence, was insufficient to establish proximatecause under the "lost chance" doctrine.

For the foregoing reasons, we affirm the judgment of thetrial court barring the opinion of plaintiff's expert witness andgranting defendants' motion for summary judgment.

Affirmed.

McNULTY and TULLY, JJ., concur.