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FIRST DIVISION
May 19, 2003

Ghodratollah Sarrafi, M.D., participated in a healthmaintenance organization (HMO) of Health Care Service Corporation(HCSC). On June 3, 1996, Sarrafi received the results of a testthat showed a dangerous mass in the heart of Sofia Beniamin, oneof Sarrafi's patients. Eight days later Sofia suffered a strokethat left her unable to speak. Sofia's daughter, as herguardian, and Sofia's husband sued Sarrafi and HCSC for failingto inform Sofia of the results of the test.

At the jury trial the court allowed Sarrafi to testify fromnotes he made of conversations with Sofia. The jury found bothdefendants liable but assessed $0 in damages. The trial courtamended the verdict to a finding in favor of Sarrafi. The courtalso entered judgment notwithstanding the verdict in favor ofHCSC because the court found the evidence of agency insufficient.

We hold that the inconsistent verdict, which may haveresulted from compromise, requires remand for retrial. The Dead-Man's Act (the Act) (735 ILCS 5/8-201 (West 2000)) precludes thetestimony concerning conversations with Sofia, even if the doctormade contemporaneous notes of the conversations. The plaintiffspresented sufficient evidence to present to a jury on the issueof implied agency of Sarrafi for HCSC. Therefore, we reverse thejudgment of the trial court and remand for retrial.

Mooshi and Sofia Beniamin immigrated to the United Statesfrom Iran, with their three daughters, in 1979. Mooshi foundwork at a manufacturing plant and obtained health insurance forhis family through that job. Sofia fell ill in 1985. Theinsurance paid for her visit to Sarrafi, who had also immigratedto the United States from Iran. Sarrafi noted the stenosis, ornarrowing, of a valve in Sofia's heart. She continued to seeSarrafi fairly regularly over the following years. In 1986Sarrafi diagnosed Sofia's hypertension, and in 1991 he alsodiscovered that she suffered from atrial fibrillation, which isan irregular heartbeat.

In 1995 Mooshi's employer changed the insurance optionsavailable to its employees. The new insurer, HCSC, allowedemployees three options. They could receive traditionalinsurance, or they could enroll in the BlueAdvantage HMO or theirpreferred provider organization (PPO). Mooshi chose the HMO, andhe chose Sarrafi, from HCSC's list, as the family's primary carephysician. HCSC had a contract with Holy Family PhysiciansOrganization (Holy Family), and Sarrafi belonged to thatorganization. HCSC compensated Holy Family for the health careit provided, and Holy Family paid Sarrafi for his work.

At an office visit in 1996, Sarrafi arranged anechocardiogram (EKG) for Sofia. Dr. Vupparahalli Rameshperformed the EKG on June 3, 1996. When he received the filmsfrom the test later that day, Ramesh discovered "a mass effectnear the apex [of the heart] ***, consistent with the presence ofthrombus." A thrombus is a blood clot. Small particles, oremboli, can break off a thrombus in the heart at any time. Theemboli from the thrombus can then course through the bloodstreamand lodge in distant parts of the body, cutting off the flow ofblood to those areas. Emboli in the brain may cause a stroke.

Ramesh promptly called Sarrafi to report the finding. Ramesh suggested that Sofia should undergo a transesophageal EKGto determine in better detail the nature of the mass. Sarrafi didnot tell Sofia about the EKG results or the need for atransesophageal EKG. Sofia called Sarrafi's office on June 8,1996, but she did not hear the results of the EKG or of the needfor further tests. Sarrafi did not speak to Sofia between June 3,1996, and June 11, 1996.

Sofia suffered a severe stroke on June 11, 1996. The strokeleft her unable to speak or walk. Although Sofia eventuallyregained very limited ability to walk, she never regained thepower of speech, not even to the extent of nodding to mean yes inresponse to questions. A court found Sofia legally disabled andappointed Sofia's eldest daughter, Glorinda Theofanis, plenaryguardian of Sofia's estate and person.

In December 1996 Glorinda, in her role as guardian ofSofia's estate, brought this lawsuit. After several amendmentsto the complaint, Glorinda and Mooshi reduced their claims tofour counts. In the first count Glorinda alleged that Sarrafinegligently failed to inform Sofia of the results of the EKG,negligently failed to order further diagnostic tests, andnegligently failed to hospitalize Sofia and treat her withHeparin, a blood-thinning medication that could dissolve theclot, after he learned the results of the EKG. Glorinda soughtto recover damages from HCSC, as well as Sarrafi, on the theorythat Sarrafi acted as an apparent or implied agent of HCSC. Inthe second count Mooshi pled the same facts and sought recoveryfrom the same parties for his loss of consortium. In count IIIGlorinda alleged that the contract between HCSC and Holy Familycreated incentives for physicians affiliated with Holy Family tominimize the hospitalization of patients and the number ofdiagnostic tests performed. She alleged that Sarrafi breachedhis fiduciary duty to disclose the financial incentives. Incount IV Mooshi alleged that the same breach of fiduciary dutyled to his loss of consortium.

Sarrafi denied the essential charges of the complaint andadded an affirmative defense that Sofia negligently contributedto her injury by refusing the reasonable advice of her physician. Sarrafi alleged that at an office visit in May 1996 Sofiadeclined Sarrafi's offer to hospitalize her and administerCoumadin, a blood-thinning medication related to Heparin. Insupport of the allegations, Sarrafi attached to the answerhandwritten notes Sarrafi made concerning the office visits inMay 1996.

At trial plaintiffs called Sarrafi as an adverse witness.Sarrafi admitted that Ramesh called him on June 3, 1996,following the EKG, and told Sarrafi that he found a mass inSofia's heart that could be a tumor or a thrombus. Sarrafi alsoadmitted that in the written report he received shortlythereafter, Ramesh said he found a "soft *** friable mass, givingthe appearance of a thrombus." Either a tumor or a thrombuscould embolize at any time, but a thrombus carries a greater riskof embolization.

According to Sarrafi, he tried to call Sofia to tell herabout the test results immediately after he heard from Ramesh. Either the call went unanswered or the line was busy. Over thefollowing days Sarrafi tried to call Sofia five or six times, buthe never got through. He did not ask anyone on his staff to callSofia. Although all of Sofia's daughters were Sarrafi'spatients, he never tried to contact any of them. He sent noletter concerning the results of the EKG.

Sarrafi's attorney asked Sarrafi on cross-examination toread to the jury the notes Sarrafi made after Sofia came to hisoffice on May 28, 1996. Plaintiffs objected that the testimonywould violate the Act. The court overruled the objection.Sarrafi testified that in his notes he wrote:

"Patient refused hospitalization and Coumadin ***. The importance of taking Coumadin due to atrialfibrillation was discussed with the patient in thepresence of Herminda [Spencer, Sofia's] daughter. Shestill refused to take it."

Sarrafi testified that in his opinion, Sofia faced about an 80%probability of having a stroke within a year if she had nomedication.

Glorinda testified that as of June 3, 1996, her parents hadcall waiting and a functioning answering machine.

Plaintiffs' expert, Dr. Franklin Wefald, testified that theapplicable standard of care required Sarrafi to notify Sofiaimmediately about the EKG results and to warn her that she faceda potentially devastating complication if she did not starttaking a strong blood thinner. In Dr. Wefald's opinion, Sarrafiviolated the standard of care by failing to use all availablemeans to contact Sofia. Given the severity of the situation,Sarrafi should have asked police to go to Sofia's home if hetried to call her and received no answer. If Sarrafi hadcontacted Sofia he should have emphasized the severity of therisk of stroke and the necessity of hospitalization and the useof anticoagulants like Heparin. According to Wefald, if Sarrafihad given Sofia appropriate advice based on the EKG, theanticoagulants likely would have prevented Sofia from sufferingthe stroke.

On cross-examination Wefald estimated about a 20% to 25%probability that a patient with atrial fibrillation and mitralvalve stenosis would suffer a stroke within a year withoutanticoagulant therapy. He estimated that the probability ofstroke doubled or tripled in the presence of a thrombus in theheart. Thus, his estimate of the risk Sofia faced nearly matchedSarrafi's estimate of that risk. Defense counsel suggested thatthe risk of a stroke in the week from June 3 to June 11, 1996,was therefore about 1%, which he arrived at by dividing 2 x 25%by 52 weeks in a year. Wefald answered that the simple divisionof the probability did not accurately represent the probabilityfor the week.

Plaintiffs asked Wefald to respond to Sarrafi's testimonyabout his handwritten notes from May 28, 1996. Wefald said thatthe notes "were medically inconsistent within the structure ofthe entire record for that day." He explained that the notes inthe body of the page referred to Sofia's complaints and Sarrafi'sassessment of the atrial fibrillation. Then, on the margins ofthe page, Sarrafi added a note charging Sofia with refusinghospitalization and Coumadin. The marginal comment did not makesense in light of Sofia's actual complaints and prior course oftreatment, which would not have suggested an immediate need forhospitalization or Coumadin. To Wefald, the marginal notesappeared to have been written later, probably after Sofiasuffered the stroke.

Plaintiffs' second expert agreed that, even assuming thetruth of Sarrafi's testimony, the standard of care requiredgreater efforts to contact Sofia. The expert also opined that ifSarrafi had contacted Sofia, the further testing, if not the EKGalone, would have persuaded Sofia to accept Heparin and Coumadintreatment. The medication would have significantly reduced therisk of stroke, at least cutting the risk by a factor of two. The expert testified that some in his profession would say theblood thinners could reduce the risk of stroke by 80%.

One of defendants' experts agreed that a blood thinner likeCoumadin would "decrease the chance of stroke by over half, maybetwo-thirds." He accepted the defense attorney's suggestion thatthe probability of a stroke occurring within the week betweenJune 3 and June 11, 1996, was 1/52 times the probability of astroke within a year. The expert believed Sarrafi met thestandard of care by trying to call Sofia five or six timesbetween June 3 and June 11, 1996.

Another defense expert testified that he read the originalEKG films, and he disagreed with Ramesh's report. The mass shownon the EKG was probably a tumor, not a thrombus. While the tumormight embolize and cause a stroke, neither Coumadin nor Heparinwould affect the risk of such a stroke.

On the issue of agency, plaintiffs presented testimony fromseveral current and former employees of HCSC. The first witnessadmitted that an HCSC committee determined whether each doctorseeking to join its network met HCSC's criteria for inclusion. HCSC had the right to exclude any doctor from its network, evenif HCSC had a contract with a medical group that included thedoctor.

HCSC also evaluated every doctor in its network every twoyears. In the evaluation an HCSC employee would go to thedoctor's office and pull a random sample of his medical charts. If HCSC found certain problems with the medical charts, it couldremove the doctor from its network. The HCSC employee would lookat the quality of care the doctor provided, along with otherfactors.

But HCSC had no prior control over a participating doctor'streatment decisions, including decisions to refer a patient to aspecialist, to perform medical tests, or to hospitalize thepatient. Sarrafi did not need HCSC's prior approval for anytreatment he ordered. HCSC paid Holy Family, according to theircontract, for all services Holy Family's member physiciansprovided to HCSC members. The contract between Holy Family andSarrafi specified that Sarrafi acted as an independent contractorin the Holy Family organization. Similarly, HCSC's contract withHoly Family specified that neither acted as an agent of theother.

HCSC's employees identified several advertising pamphletsHCSC distributed to businesses in an effort to sell them theBlueAdvantage HMO. In the pamphlets HCSC said that eachphysician in its network met or exceeded their "quality[,]effectiveness [and] patient satisfaction standards."

Mooshi testified that he followed his daughter Herminda'sadvice about insurance. Herminda testified that she reviewed allthe literature concerning insurance choices for her father. WhenMooshi's employer changed its insurer to HCSC, Herminda looked atmaterials from BlueAdvantage HMO amongst other documents. Sheadvised her father to sign up for the HMO based on a combinationof factors, including the representations HCSC made about thequality of its doctors. She would have suggested switchingdoctors if better insurance coverage restricted choices to otherdoctors.

In 1990 and 1991, when Mooshi's employer had otherinsurance, Sofia received treatment from a doctor in thatinsurer's network. But Sarrafi's records show that Sofiacontinued coming to Sarrafi's office for treatment in 1990 and1991. Sarrafi testified that at least once Sofia, rather than theinsurer, paid the $25 fee for the office visit.

Plaintiffs also presented evidence concerning HCSC'scontract and the financial incentives for Holy Family, and forSarrafi as a member of Holy Family, to minimize the number oftests and hospitalizations of its patients. Sarrafi admitted thathe did not inform Sofia about the incentives, because he wouldnot allow the incentives to influence his treatment decisions. All of the experts agreed that they would not inform theirpatients of similar incentive clauses, and they would not allowsuch incentives to influence the treatments they provided any oftheir patients.

The parties prepared multiple verdict forms for each count. The court instructed the jurors to return verdict form B forcount I only if they unanimously found against Sarrafi and thatSofia was not contributorily negligent and that Sarrafi acted asan agent of HCSC. The court told the jurors that to return averdict against Sarrafi, the jurors must find that plaintiffs mettheir burden of proving (1) that Sarrafi acted negligently, (2)that Sofia suffered injury, and (3) "that the negligence of the defendants was a proximate cause of the injury to theplaintiffs." The court reiterated the requirement: "If you findfrom your consideration of all the evidence that any of thesepropositions has not been proved, then your verdict should be forthe defendants." The court instructed the jurors similarly onthe other three counts.

After substantial deliberations the jurors sent the court anote, which said:

"It is the general con[s]ensus among this jurythat no compromise can be reached. We request thatthis jury be either re-instructed or dismissed, as noresolution is in sight, and the tenor has become ratherargumentative."

Later the jury foreperson sent a note asking:

"Do we have an obligation to seek the truth - oronly consider the evidence even if the truth is onlyaround the corner?"

The court instructed the jurors to continue deliberations.

Shortly thereafter the jury returned verdicts in favor of defendants on counts II, III, and IV of the complaint. That is,the jurors found that plaintiffs did not meet their burden ofproof on both of the counts charging Sarrafi with violating afiduciary duty to disclose financial incentives, and that Mooshifailed to meet his burden of proof on the count seeking damagesfor loss of consortium caused by Sarrafi's negligence. On countI the jurors all signed verdict form B, finding in favor ofGlorinda and against both defendants, but the jury assesseddamages of $0.

After the court entered judgment on the verdict, all partiesfiled posttrial motions. The court denied plaintiffs' motion fornew trial and granted HCSC judgment notwithstanding the verdicton count I. The court concluded from the award of zero damagesthat the jury found that Sarrafi's acts did not proximately causeinjury, and on that basis the court amended the verdict to afinding in favor of Sarrafi on count I.

Plaintiffs argue on appeal first that the trial court erredby denying their motion for a new trial. Sarrafi counters thatthis court should affirm the trial court's judgment in his favorbecause the evidence at trial so overwhelmingly supports thejudgment that no verdict in favor of the plaintiffs could everstand because plaintiffs failed to prove his negligence causedthe harm. See Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d494, 502 (1967). We disagree. Plaintiffs presented sufficientevidence supporting their case. Sarrafi's argument relies onstatistical assumptions without support in the record andfallacious statistical reasoning. Even apart from these errors,the evidence on which Sarrafi relies has no bearing on the issueof whether his negligence in fact caused the harm.

Plaintiffs presented evidence that Sarrafi failed to contactSofia between June 3, 1996, and June 11, 1996. Glorindatestified that Sofia had a functioning answering machine and callwaiting. From this evidence the jury could conclude that Sarrafidid not even attempt to call Sofia after he learned the resultsof the EKG. The experts agreed that after Sarrafi received thecall from Ramesh about the EKG, the standard of care requiredsignificant efforts to contact Sofia. Plaintiffs' expertstestified that the failure to contact Sofia caused her not tohave further tests and caused her not to learn the new evidenceof a significant risk of stroke. The jury, like plaintiffs'experts, could rely on Ramesh's finding that the mass in Sofia'sheart appeared to be a thrombus, and therefore that masspresented a considerable, and reducible, risk of embolization andstroke. Thus, the failure to contact Sofia for further tests andtreatment with Heparin and Coumadin significantly increased therisk of a stroke.

Sarrafi uses the distorted statistical arguments he made attrial as the grounds for his claim that the trial court shouldhave granted him judgment notwithstanding the verdict. At trialSarrafi's attorney suggested that if the probability of a strokewithin a year is 52%, then the probability of a stroke within aweek is 1%. Sarrafi argues that the 1% probability is too smallfor his acts to count as the cause of the stroke, even if he didnothing to reduce the 1% probability.

The parties could have avoided some of the distortioninherent in this argument if either had consulted any authorityon statistics. A court of appeal may take judicial notice oflaws of mathematics and computational methods scientistsgenerally accept as irrefutable. Thomas v. Price, 81 Ill. App.3d 542, 545 (1980); Cook County Department of EnvironmentalControl v. Tomar Industries, 29 Ill. App. 3d 751, 754 (1975);Mueth v. Jaska, 302 Ill. App. 289, 294-95 (1939). Here we takejudicial notice of the proper methods for computation ofprobabilities of a conjunction of events given the probabilitiesof each separate event.

The probability of two independent events A and B is theproduct of the probabilities (P(A) x P(B)), not the sum of theprobabilities, as Sarrafi's method presumed. The probability ofneither of two independent events is (1-P(A)) x (1-P(B)). If theprobability of a stroke in each week is 1%, and the probabilityeach week is independent of the probability all other weeks, theprobability of a stroke within two weeks is not 1% + 1%; insteadit is 1 - (.99)x(.99), which is one minus the product of theprobability of no stroke in the first week times the probabilityof no stroke in the second week. If the chance of having astroke within a year without medication is 80%, as Sarrafiestimated, and the risk is uniformly distributed throughout theyear, and the risk each week is independent of the risk for eachother week (no expert testimony supported these implicitassumptions), the risk of having a stroke within one week is not.8 divided by 52; instead, it is 1- the 52nd root of .2, whichcalculates to approximately a 3% risk each week ((1-.03)⁵²(1-.8)). For a fuller explanation see 1 W. Feller, An Introductionto Probability Theory and Its Applications, at 47-49 (3d ed.1968), or any other elementary treatise on probability andstatistics.

Thus, if defendants had presented admissible evidence ofstatistical independence of each week's risk of stroke, and if defendants had presented admissible evidence that the risk eachweek matched the risk every other week, then the evidence wouldsupport an estimate of a 3% chance of a stroke during the week atissue. Because the evidence at trial lacked any support for theimplicit assumptions about uniformity and independence, it cannotsupport such a low estimate of the risk. The evidence actuallypresented, even if augmented with support for the implicitassumptions, does not in any way support a finding of a 1% riskof stroke for the week.

If plaintiffs had objected to Sarrafi's questions based onthe unsupported assumptions and fallacious reasoning, the trialcourt should have sustained the objections. See Foss ParkDistrict v. First National Bank of Waukegan, 125 Ill. App. 2d276, 280 (1970). The distorted statistical argument illustratesthe warning that "[a] lawyer who acts as his own statistician isas worthwhile to the case and the client as a statistician whoacts as the trial lawyer." J. Kobayashi, Killing Them Softly withYour Song: Problems with Proof of Causal Relationship byStatistical Methods and Probability Theory and Expert Opinionswith Suggested Methods for Analysis and Cross-examination, andNotes about Epidemiological Studies and Animal Data as CausationEvidence, 363 PLI/LIT 37, 70 (1988).

Even without the fallacious reasoning about probabilities,the evidence had no bearing on the issue of causation in fact. If a negligent act creates only 1 chance in 100 of harm, the actin fact causes the harm in that 1 case in 100 when the chance isrealized and the harm occurs. The foreseeability of harm - theex ante risk - is an important factor for determining whether the defendant had a duty to theplaintiff and whether to imposeliability on the defendant for breach of duty. See Lee v.Chicago Transit Authority, 152 Ill. 2d 432, 455-56 (1992). Expert testimony in this case established that the ex ante riskhere rose to a level that imposed on Sarrafi a duty to contactSofia. Sofia's condition, including the mass found in her heart,made a stroke readily foreseeable in the absence of medication.

To determine cause in fact, courts usually look to theprecise sequence of events and such issues as whether the harmwould likely have occurred in the absence of the negligent acts. See W. Keeton, Prosser & Keeton on Torts,