Scardina v. Nam

Case Date: 05/08/2002
Court: 1st District Appellate
Docket No: 1-00-1737 Rel

THIRD DIVISION
 MAY 08, 2002





No. 1-00-1737


WILLIAM SCARDINA,

     Plaintiff-Appellant,

          v.

SHIN II EUGENE NAM, BEHINFAR
ASSOCIATES IN RADIOLOGY, S.C., and
ALEXIAN BROTHERS MEDICAL CENTER,

     Defendants-Appellees.

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Appeal from the
Circuit Court of
Cook County.





Honorable
James S. Quinlan,
Judge Presiding.

JUSTICE CERDA delivered the opinion of the court:


In this case, plaintiff, William Scardina, appeals theorders of the circuit court directing a verdict in favor ofdefendants Shin II Eugene Nam, a radiologist, and his employer,Behnifar Associates in Radiology (Behnifar Associates), andentering summary judgment in favor of defendant Alexian BrothersMedical Center (Alexian Brothers) on his claims of medicalnegligence stemming from the alleged failure of defendants toproperly diagnose and treat a gastrointestinal disease known asdiverticulitis. The principal issue raised by plaintiff's appealis whether the evidence introduced at trial was sufficient toallow the jury to consider the issue of Dr. Nam's purportednegligence in failing to diagnose plaintiff's ailment and,specifically, whether Dr. Nam's conduct proximately causedplaintiff's condition to worsen and require further medicalattention. For the following reasons, we affirm.

BACKGROUND

Plaintiff's Medical Condition
and Treatment

In the latter part of August 1994, plaintiff experiencedchronic stomach pain, diarrhea and fever. On August 31, 1994,plaintiff sought treatment from his family physician, Dr.Carlotta Rinke. Because Dr. Rinke was unavailable at the time,plaintiff met with Dr. Rinke's associate, Dr. Ronald Ledvora. Dr. Ledvora examined plaintiff and diagnosed a possible case ofdiverticulitis. Dr. Ledvora prescribed an antibiotic, Cipro, andinstructed plaintiff to schedule a follow-up visit with Dr.Rinke.

Diverticulitis is a disease of the intestines(1). Whilediverticulitis may affect the small intestine, the conditionoccurs most frequently in the large intestine, mainly in thesigmoid colonic region. The disease forms where small, weakenedpockets of the intestinal wall become inflamed and eventuallyperforate, thereby creating a fistula, or pathway, for bacteriato escape and leak out into the abdominal cavity. This bacteria,in turn, can lead to the formation of an abscess, a termgenerally described as a localized collection of pus in thebody's tissues which, itself, commonly causes inflammation.

Plaintiff's condition improved slightly over the few daysfollowing his visit with Dr. Ledvora. However, by week's end,his condition had worsened and plaintiff returned to Dr. Rinke'soffice on September 8, 1994. Following an examination, Dr. Rinkeadvised plaintiff he needed to be hospitalized and seen by asurgeon immediately.

Plaintiff was transported and admitted to Alexian Brotherson September 8, where he was examined by Dr. Cacioppo, a surgeon,and Dr. Nam. An abdominal CT scan, as interpreted by Dr. Nam,revealed the presence of a large abscess in the left side ofplaintiff's abdomen and in front of the mid-portion of thedescending colon. A large area of inflammation was present inthe surrounding areas of fatty tissues that invest theintestines. Based on his observations, Dr. Nam concludedplaintiff's abscess was "most likely related to a perforatedintestine." Dr. Nam attempted to trace the abscess to thesigmoid colon or appendix but was unable to due to positioning ofthe small bowel loops.

Additional tests, including a gastrografin enema, wereconducted to determine the presence of any abnormalities withplaintiff's intestines. In a gastrografin enema, a contrastliquid or dye is injected under pressure into the patient's largeintestine via the rectum to determine the presence of fistulas,which may be detected by a visualization of the contrast liquidleaking outside the intestinal walls. A number of spot films, orsnapshots of a particular area, were taken by Dr. Nam as thecontrast liquid progressed through plaintiff's colon. Dr. Namfurther prepared overhead films of plaintiff's entire abdominalregion throughout the contrast process.

In his diagnostic report, Dr. Nam noted the free flow ofcontrast from the rectum up to the cecum and observed an abscesscavity in plaintiff's left mid-abdomen, which confirmed theresults of the earlier CT scan. Dr. Nam did not directly observeany leakage of the contrast outside the walls of the colon and,specifically, did not note any indications of an early fill, or apremature filling of the small intestine with the contrast beforethe contrast has moved completely through the colon. Accordingto plaintiff's experts, where no abnormalities exist in thecolonic wall, one would normally expect the contrast liquid tofill the entire colon before it enters the small intestine. Thefilling of the small intestine with contrast liquid before thecontrast has filled the entire colon is, according to theexperts, abnormal, suggesting the presence of a fistula in somearea of the colonic wall. A determination of an early fill ismade when no direct evidence of a fistula is apparent and ispredicated on the premise that the contrast liquid could onlyenter the small bowel prior to the filling of the colon if afistula was present.

Dr. Nam's gastrografin report additionally noted thepresence of diverticula in the sigmoid colon and concluded thepresence of "mild sigmoid diverticulitis." Dr. Nam, however, didnot observe any direct evidence of bowel perforations.

Upon review of the relevant studies and diagnostics, Dr.Cacioppo diagnosed plaintiff with having a small bowelperforation with an intra-abdominal abscess. On September 12,1994, following drainage of the abscess and the administration ofintensive antibiotics, a sinogram, a process in which a contrastliquid is injected into the drained abscess cavity to ascertainwhether the abscess in contact with, for instance, the intestinalwalls, was performed. The sinogram revealed, according to Dr.Nam's diagnostic report, a communication, or connection, of theabscess with the small intestine, thus confirming Dr. Cacioppo'sbelief of a small bowel fistula.

Surgery on plaintiff was ultimately performed by Dr.Cacioppo on September 15, 1994. During this procedure, Dr.Cacioppo found the abscess situated between loops of small boweland in direct contact with the jejunum. Due to its continuitywith the small bowel, the abscess had caused three perforationsof the jejunum wall. Dr. Cacioppo additionally observedmalrotation, or twisting, of plaintiff's small intestine. Dr.Cacioppo extracted both the abscess and the perforated area ofthe small bowel and rejoined the exposed ends of the jejunum.

While Dr. Cacioppo did not testify during plaintiff's case,the record indicates Dr. Cacioppo would have stated that: due toconcerns about the possibility of perforations in the largeintestine, he visualized the sigmoid colon for abnormalities butfound nothing unusual. Dr. Cacioppo detected no evidence of anenterocolonic fistula, or an abnormal connection between thesmall and large intestines. Further, the perforated area ofplaintiff's small bowel was not in contact with the colon and, infact, was found by Dr. Cacioppo to be nowhere near the colon. The September 15 surgery did little to alleviate plaintiff'scondition. An additional CT scan conducted on September 19,1994, revealed the formation of a new abscess in the plaintiff'slower pelvic region, in proximity to the sigmoid colon. Theabscess was drained and a sinogram conducted on September 21 ledDr. Nam to diagnose a perforation of plaintiff's rectosigmoidcolon, the area of the large intestine where the sigmoid colonand rectum meet.

Upon reviewing Dr. Nam's diagnostics, Dr. Cacioppo consultedDr. Sara Fredrickson, a fellow surgeon, on September 22, 1994. Upon review of plaintiff's case history, including theradiological studies and Dr. Cacioppo's operative report, Dr.Fredrickson concluded that plaintiff's original abscess was mostlikely due to leakage of bacteria from the sigmoid colon probablysecondary to an isolated area of diverticulitis. Reading theSeptember 8 gastrografin enema films as depicting an early fillof the small intestine, Fredrickson further suspected anenterocolonic fistula.

The newly formed abscess, which was found near therectosigmoid colon, was removed by Dr. Cacioppo during a secondsurgery conducted September 23, 1994. Dr. Cacioppo resected thediseased portion of the sigmoid colon, resulting in a colostomy,and the extracted colon specimen was sent to pathology foranalysis. The record indicates the area of intestine extractedduring the second surgery included a portion of the sigmoid colonsituated near the rectal junction as well as a portion of therectosigmoid colon.

Plaintiff continued to experience difficulties following thesecond surgery. Plaintiff particularly suffered pain, enduredconvulsions, and battled a period of septic shock. Furthermore,later efforts to reverse the colostomy proved unsuccessful and,as a result, plaintiff's colostomy is now permanent.

Plaintiff's Lawsuit

Plaintiff filed an amended medical malpractice actionagainst Alexian Brothers, Dr. Ledvora, his employer SuburbanHealth Care Medical Associates (Suburban Health Care), Dr. Namand Behinfar Associates.(2) Drs. Ledvora and Nam were alleged tohave acted negligently in failing to timely and properly diagnoseand treat plaintiff's intestinal condition. The liability of theremaining defendants was asserted to be vicarious; the impositionof liability of Suburban Health Care and Behinfar Associates wassought under a theory of respondeat superior, whereas theliability of Alexian Brothers was predicated upon a theory ofapparent agency.

Alexian Brothers eventually moved for summary judgment onthe basis plaintiff was unable to establish that Nam was actingas the hospital's apparent agent during the medical treatment atissue. The circuit court agreed and granted Alexian Brothers'motion. Following the court's finding of no just reason to delaythe enforcement of its ruling, plaintiff instituted an appeal tothis court in early 1998 seeking reversal of the circuit court'sruling and reinstatement of his case against the hospital.

In the meantime, the claims against the remaining defendantsproceeded to trial. The theory of liability espoused byplaintiff against Dr. Nam was that plaintiff suffered fromdiverticulitis of the sigmoid colon upon his admittance toAlexian Brothers on September 8. Prior to September 8,plaintiff's diverticulitis caused the development of colonicfistulas, which led to the leakage of bacteria and ultimately theformation of a large intra-abdominal abscess. Due to itsinflammatory process, the abscess caused perforations of thesmall intestine. In the meantime, the small and large intestinesadhered to one another at the spot of the colonic perforation,thereby causing an enterocolonic fistula.

Plaintiff conceded the September radiological films do notreveal direct evidence of a colonic perforation. Plaintiff,instead, maintained the foregoing films show an early fill,thereby suggesting the presence of the enterocolonic fistula. Dr. Nam, according to plaintiff, failed to recognize thepossibility of the abnormal intestinal connection and, thus, didnot report that information to Dr. Cacioppo prior to theSeptember 15 surgery. As a result, Dr. Cacioppo, whom plaintiffconcedes acted within the applicable standard of care given theinformation provided him, did not treat the diseased portion ofsigmoid colon. Consequently, the colonic fistula persisted andcontinued to leak bacteria, leading to the formation of a newabscess and additional complications. Plaintiff claimed Dr.Nam's failure to recognize and report the possible enterocolonicfistula from the September 8 radiological studies lessened theeffectiveness of Dr. Cacioppo's September 15 surgery andnecessitated further medical treatment.

In support of his theory, plaintiff presented the experttestimonies of Drs. Sara Fredrickson, James Edney, a surgeon,Marshall Sparberg, a gastroenterologist, and Robert Vogelzang, adiagnostic radiologist. Each of the foregoing physicians opinedthat plaintiff's original abscess was most likely caused by acase of diverticulitis in the sigmoid colon that had manifestedby the time the September 8 radiological studies were conducted.

In formulating their respective opinion, Drs. Fredrickson,Edney and Vogelzang each testified that the September 8radiological studies suggested an early filling of the smallintestine. Hence, according to the doctors, the films suggesteda perforation of plaintiff's colon and an abnormal connectionwith the small intestine. Drs. Edney and Vogelzang, inparticular, believed the enterocolonic fistula involved thesigmoid colon. In this regard, Dr. Vogelzang explained that thefilms show plaintiff's sigmoid colon to be collapsed, anindication, according to the doctor, that the contrast liquid wasleaking and rapidly entering the small bowel.

Drs. Edney and Vogelzang further testified that theradiological films depicted the presence of sigmoid colonicdiverticulitis. From the spot films taken during thegastrografin enema, Dr. Edney noted irregularity in certain areasof plaintiff's sigmoid colon and specifically observed an areawhere he detected the presence of a diverticulum. That area,according to Dr. Edney, signaled diverticulitis.

Dr. Vogelzang similarly stated the radiological studiesrevealed the presence of a large abscess in continuity with thedescending colon and in close proximity to the sigmoid colon. Dr. Vogelzang specifically noted the fatty tissue immediatelybelow the abscess showed signs of a very significant inflammatoryprocess involving the upper, or superior, sigmoid colon. According to the doctor, the films depict all the "hallmarkfindings of diverticulitis."

With respect to the gastrografin spot films, Dr. Vogelzangstated the films show a collection of contrast liquid in thesigmoid colon which, according to the doctor, indicated a leakageof the contrast and a perforation of the sigmoid colon. WhileDr. Vogelzang never identified the specific area of perforation,he stated the films show the perforation to lie in the superior,or upper, portion of the sigmoid colon. The record indicates Dr.Vogelzang, specifically referring to the radiological films,highlighted for the jury the particular area of the sigmoid colonwhere he believed the perforation was located. Dr. Vogelzang didnot believe the films showed the perforation to be in therectosigmoid junction, the area of colon extracted by Dr.Cacioppo during the second surgery. Yet, Dr. Vogelzang statedthe area of perforation suggested by the radiological studies,while shown not to be in the rectosigmoid area, was "just beyondit, not far."

Drs. Edney and Vogelzang both stated the applicable standardof care required Dr. Nam to have noted the early fill depicted bythe September 8 radiological films and, hence, recognize apossible abnormal connection between plaintiff's sigmoid colonand small intestine. Dr. Vogelzang further stated Dr. Nam wouldhave been expected to note the probable location of the processon the sigmoid colon. Hence, the doctors opined Dr. Nam shouldhave alerted Dr. Cacioppo of a possible enterocolonic fistulaprior to the September 15 surgical procedure.

Dr. Edney specifically explained the role radiologists likeDr. Nam play in the surgical procedure. Dr. Edney stated it iswithin the applicable standard of care for a surgeon to defer toa radiologist as to what pre-operative radiological films do ordo not depict. Radiologists, according to Dr. Edney, provide aroad map for the surgeon by his or her interpretation of theradiological studies. This road map provides the operatingsurgeon with insight as to what the problem may be and enablesthe surgeon to formulate a plan as to how best to proceed withthe surgical procedure. Dr. Edney stated accurate and completeradiological information is especially necessary in cases likeplaintiff's, where the surgery would be difficult given theinflammatory process caused by the patient's abscess. Dr. Edneyexplained "the whole thing could be very, very confusing. Oftentimes you *** [are] not be able to tell what loop of bowel youare looking at. It's just a big knot and a mess. Sometimes youcan't even tell colon from small intestine."

Dr. Edney stated Dr. Nam's failure to detect theenterocolonic fistula most likely prevented Dr. Cacioppo fromdetecting the sigmoid diverticulitis during the initial surgery. Dr. Edney stated that the abscess that was treated during thesecond surgery was most likely due to continued contaminationfrom the diseased portion of sigmoid colon that went undetectedby Dr. Nam prior to the September 15 procedure and untreated byDr. Cacioppo. As a result of Dr. Cacioppo's inability toproperly treat plaintiff, the leakage of intestinal bacteria fromthe sigmoid colon persisted and plaintiff developed a new abscessand further complications. Dr. Edney, as well as Dr.Fredrickson, explained that a reasonably well-qualified surgeon,like Dr. Cacioppo, who had been properly alerted to a possibleenterocolonic fistula, would have examined the sigmoid colon,identified the diseased portion thereof, and surgically treatedthe involved area by performing a colostomy.

At the close of plaintiff's case, Dr. Nam moved for adirected verdict on the basis that plaintiff's evidence failed toestablish that Dr. Nam's deviations from the applicable standardof care proximately caused the harm suffered by plaintifffollowing the September 15 surgery. While noting that theevidence unequivocally established a deviation of the applicablestandard of care on Dr. Nam's part, the circuit court foundplaintiff's evidence on the issue of causation insufficient,principally citing plaintiff's failure to show what, if anything,Dr. Cacioppo would have done differently had he been informed ofthe possible enterocolonic fistula by Dr. Nam. Additionally,because its asserted liability was purely vicarious, Dr. Nam'spurported employer, Behinfar Associates, was also granted adirected judgment.

At the close of trial against the remaining defendants, thejury returned a verdict in favor of plaintiff and against Dr.Ledvora and Suburban Health Care in the aggregate amount of$3,350,000. On December 29, 1999, plaintiff moved the court toreconsider its judgment in favor of Dr. Nam and BehinfarAssociates. Dr. Ledvora and Suburban Health Care also filedposttrial motions.

While the parties' posttrial motions remained pending, onMarch 8, 2000, this court issued its decision in Scardina v.Alexian Brothers Medical Center, 308 Ill. App. 3d 359, 719 N.E.2d1150 (1999), which reversed the circuit court's earlier entry ofsummary judgment order in favor of Alexian Brothers andreinstated plaintiff's claims against the hospital. Plaintiff'scause against Alexian Brothers was formally reinstated by thecircuit court on March 29, 2000, and the matter was thereafterconsolidated with plaintiff's claims against the other party-defendants.

Alexian Brothers followed by moving for summary judgment onthe basis it could not be held liable under an apparent agencytheory when plaintiff's evidence against its purported agent, Dr.Nam, was insufficient to establish negligence. The circuit courtagreed and, on April 25, 2000, the court granted summary judgmentin favor of Alexian Brothers and denied plaintiff's posttrialmotions.

Plaintiff's timely appeal followed.

ANALYSIS

Plaintiff's principal contention on appeal is that thecircuit court erred in granting Dr. Nam's motion for a directedverdict. In cases tried before a jury, a directed verdict isappropriate when, viewing the evidence in a light most favorableto the nonmovant, the evidence so overwhelmingly favors themovant that no contrary verdict based on that evidence could everstand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,510, 229 N.E.2d 504, 513-14 (1967); Seldin v. Babendir, 325 Ill.App. 3d 1058, 1062, 759 N.E.2d 28, 32 (2001). Where the evidencefails to demonstrate a substantial factual dispute, or where theassessment of witness credibility or resolution of conflictingevidence is not decisive to the case, a directed verdict shouldbe granted. Johnson v. Owens-Corning Fiberglas Corp., 313 Ill.App. 3d 230, 235, 729 N.E.2d 883, 887 (2000). Since the circuitcourt is not required to weigh evidence, resolve conflicts in theevidentiary record or assess the credibility of witnesstestimony, a ruling on a motion for a directed verdict isreviewed de novo. Susnis v. Radfar, 317 Ill. App. 3d 817, 825,739 N.E.2d 960, 966 (2000); Johnson, 313 Ill. App. 3d at 235, 729N.E.2d at 887.

To succeed on a claim of medical negligence, the plaintiffmust prove that the medical provider's deviation from anapplicable standard of care proximately caused the injurycomplained of, thereby resulting in damages. Williams v.University of Chicago Hospitals, 179 Ill. 2d 80, 86, 688 N.E.2d130, 133 (1997). Here, only plaintiff's showing on the causationelement is at issue. Proximate cause has two components: causein fact and cause in law. Cause in fact, in particular, musttypically be established by expert testimony and requires amedical malpractice plaintiff to establish, to a reasonabledegree of medical certainty, that the defendant's malpracticemore probably than not caused his or her injury. Aguilera v.Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 972,691 N.E.2d 1, 5 (1997); Lambie v. Schneider, 305 Ill. App. 3d421, 426, 713 N.E.2d 603, 607 (1999); Newell v. Corres, 125 Ill.App. 3d 1087, 1092, 466 N.E.2d 1085, 1089 (1984).

To establish the requisite cause in fact, plaintiff reliedon the "loss of chance" doctrine. See Lambie, 305 Ill. App. 3dat 428, 713 N.E.2d at 609 (noting doctrine is employed to provecause-in-fact prong of proximate causation analysis). Asrelevant to the theory presented by plaintiff at trial, the loss-of-chance doctrine refers to the harm resulting to a plaintiffwhere a missed or delayed diagnosis of a condition has lessenedthe effectiveness of treatment or increased the risk of anunfavorable outcome. Holton v. Memorial Hospital, 176 Ill. 2d95, 111, 679 N.E.2d 1202, 1209 (1997); Townsend v. University ofChicago Hospitals, 318 Ill. App. 3d 406, 410, 741 N.E.2d 1055,1058 (2000). The doctrine is not a separate theory of recoverybut, rather, a concept that factors into the proximate causeanalysis. Aguilera, 293 Ill. App. 3d at 973, 691 N.E.2d at 5. In such instances, proximate causation can be established if theplaintiff can prove, to a reasonable degree of medical certainty,that the defendant's failure to render a timely diagnosis moreprobably than not compromised the effectiveness of treatmentreceived or increased the risk of harm to the plaintiff. Holton,176 Ill. 2d at 119, 679 N.E.2d at 1213; McDaniel v. Ong, 311 Ill.App. 3d 203, 210, 724 N.E.2d 38, 43 (1999); Aguilera, 293 Ill.App. 3d at 972, 691 N.E.2d at 5. While we are mindful that thisdetermination is fact specific and, as such, is a matter bestleft for the jury's resolution, the issue may be decided on amotion for directed verdict where the evidence, viewed in a lightmost favorable to the plaintiff, fails to sufficiently connectthe defendant's conduct to the claimed injury. See Townsend, 318Ill. App. 3d at 413, 741 N.E.2d at 1060; Saxton v. Toole, 240Ill. App. 3d 204, 211, 608 N.E.2d 233, 238 (1992); Schaecher v.Reinwein, 41 Ill. App. 3d 1055, 1056-57, 355 N.E.2d 351, 352(1976).

Viewing the evidence in a light most favorable to plaintiff,we find plaintiff's evidence insufficient to raise a juryquestion as to whether Dr. Nam's failure to render an accuratediagnosis from the September 8 radiological films lessened theeffectiveness of Dr. Cacioppo's initial surgery. According toplaintiff, Dr. Nam's missed diagnosis prevented Dr. Cacioppo fromdetecting the sigmoid colon perforations that were discoveredduring the second surgical procedure. Had Dr. Nam rendered atimely and accurate diagnosis, plaintiff contended, Dr. Cacioppowould have located the involved portion of colon and performed acolostomy. The evidence, however, does not support plaintiff'scontention and specifically fails to show that a proper diagnosisby Dr. Nam would have led Dr. Cacioppo to find the sigmoidcolonic perforation during the first surgery.

The crux of plaintiff's position is that Dr. Cacioppo wouldhave examined the colon and found the sigmoid colonicperforations had Dr. Nam reported the possibility of aenterocolonic fistula. Yet, Dr. Cacioppo did just that and foundno abnormalities. The record reveals Dr. Nam informed Dr.Cacioppo prior to the September 15 surgery of the presence of amild case of diverticulitis in plaintiff's sigmoid colon. Inlight of Dr. Nam's diagnostic findings, and due to concerns ofhis own, Dr. Cacioppo examined plaintiff's entire colon andobserved neither colonic perforations nor abnormal connectionsbetween the large and small bowels.

Plaintiff maintains the expert testimony presented at trialestablishes that had Dr. Cacioppo been alerted to the possibleenterocolonic fistula and its likely location, he, as well asother reasonably well-qualified surgeons, would have removed theportion of colon suspected of being diseased, irrespective ofwhether the operating surgeon actually discovered perforationsduring surgery. The evidence does not support plaintiff'scontention. Drs. Fredrickson and Edney each indicated that acolonic perforation would have to be identified before anysurgical extraction would be performed. Contrary to plaintiff'sassertions, neither witness stated that a portion of intestine,which radiological films suggested to be diseased, would beremoved by a surgeon without determining whether the suspectedintestinal area was indeed affected.

Notably, the extent of Dr. Cacioppo's examination ofplaintiff's colon is not revealed by the record. For reasonsonly known to plaintiff, Dr. Cacioppo was not called as awitness. Perhaps, because Dr. Cacioppo was never alerted to thepossible enterocolonic fistula, his examination may have beencursory at best, with little attention paid by the doctor todetecting the presence of abnormalities. Yet, by the same token,Dr. Nam's report of mild sigmoid diverticulitis, coupled with thenature of the abscess and concerns of colonic disease, may haveled Dr. Cacioppo to perform a detailed and meticulous inspectionthat proved unremarkable. Thus, while it is possible that Dr.Cacioppo's examination was unceremonious, it is just as likelythat his exam was as thorough as it would have been had Dr. Namproperly interpreted the radiological films. Due to the want ofevidence regarding Dr. Cacioppo's examination of plaintiff'scolon, the record fails to lend a reasonable inference that Dr.Cacioppo would have done anything different in his examinationhad he been alerted to a possible enterocolonic fistula. Plaintiff has simply not shown what Dr. Cacioppo would have donedifferently, if anything, with respect to his efforts to locateperforations in the colon. The causal connection must not becontingent, speculative or merely possible but, rather, must beshown by such a degree of probability as to amount to areasonable certainty that such a nexus exists. Harmon v. Patel,247 Ill. App. 3d 32, 37, 617 N.E.2d 183, 187 (1993). As therecord stands, the jury would be left to speculate as to theextent and nature of Dr. Cacioppo's exam and to whether Dr. Nam'smissed diagnosis would have altered the outcome of the firstsurgery.

Because the evidence fails to sufficiently raise a juryquestion as to whether Dr. Nam's missed diagnosis lessened theeffectiveness of Dr. Cacioppo's September 15 surgery, we affirmthe circuit court's entry of judgment in favor of Dr. Nam. SeeGill v. Foster, 157 Ill. 2d 304, 310, 626 N.E.2d 190, 193 (1993)(upholding summary judgment in favor of defendant hospital wherethe record failed to show that the doctor, who was aware of theplaintiff's complaints and had dismissed them as insignificant,would have done anything different had defendant's nursesreported the plaintiff's complaints to the doctor); Sunderman v.Agarwal, 322 Ill. App. 3d 900, 904, 750 N.E.2d 1280, 1284 (2001)(holding no question as to proximate cause existed where theevidence showed that the defendant doctor would not have doneanything different had the results of a pathology report beenaccurately presented); Susnis, 317 Ill. App. 3d at 827, 739N.E.2d at 967 (finding evidence of proximate cause insufficientto raise jury question where the evidence was speculative as towhether the treating physician would have acted differently hadthe defendant doctor indicated that the minor had an abnormalheart); cf. Holton, 176 Ill. 2d at 110, 679 N.E.2d at 1209-10(finding proximate causation established where evidence, whichrevealed that medical providers would have embarked on adifferent course of treatment had they been properly apprised ofthe plaintiff's condition by the defendants, permitted areasonable inference that the defendants' omissions prevented themedical providers from rendering proper treatment).

Plaintiff's failure to present sufficient evidence of Dr.Nam's malpractice is fatal to his vicarious liability claimsagainst Behinfar Associates and Alexian Brothers. Accordingly,judgment entered in their favor is likewise affirmed.

CONCLUSION

For the foregoing reasons, the order of the circuit courtdirecting judgment in favor of Dr. Nam and Behinfar Associates isaffirmed. The circuit court's order granting Alexian Brotherssummary judgment is also affirmed.

Affirmed.

HALL, P.J., and WOLFSON, J., concur.

 

 

1. The intestinal tract consists of the small intestine,otherwise known as the small bowel, and the large intestine, alsoreferred to as the large bowel or colon. The small intestine hasthree sections - starting from the stomach and working down,these sections are the duodenum, the jejunum, and the ileum. Thesmall intestine ends at the ileocecal valve, which represents thejunction with large intestine.

The large intestine consists of the following sections,beginning with the ileocecal valve: the cecum, the ascendingcolon (which moves up from the pelvic region on the right side ofthe body), the transverse colon (which crosses the midline of theabdominal cavity), the descending colon (which moves down theleft side of the body to the pelvic region), and, finally, thesigmoid colon (which loops down from the pelvic region and endsin the rectum).

2. Plaintiff also sued Drs. Rinke and Cacioppo. Theseclaims were nonsuited by the circuit court on March 30, 1999.