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THIRD DIVISION
December 20, 2000

The question in this medical negligence case is whether the proof created afatal gap between the defendant doctor's purported negligent breach of theapplicable standard of care and the death of Debra Puckett. The trial judge heldthere was enough evidence of proximate cause to take the case to the jury, whichfound in favor of the plaintiff. We do not agree. We find the defendants areentitled to Judgment Notwithstanding the Verdict.

FACTS

Debra Puckett (Puckett), a 37 year-old single mother, suffered from transversemyelitis, a neurological impairment she contracted in 1992 after an adversereaction to a hepatitis vaccination. Puckett had decreased motor strength andsensation below her waist, and she was confined to a wheelchair. Puckett also hadan indwelling catheter to drain her urine.

Around 7:30 p.m. on February 20, 1994, Puckett went to the University of ChicagoHospital emergency room, complaining of a high fever, diffuse back pain, and foul-smelling cloudy urine. Dr. Diane Chaney (Chaney), the emergency room attendingphysician that night, examined Puckett and provisionally concluded she had aurinary tract or kidney infection. Dr. Chaney ordered antibiotics, intravenousfluids, blood tests, and a urine culture for Puckett.

Around 1 a.m. on February 21, Dr. Chaney decided to admit Puckett to the neurologyfloor of the hospital, where she could receive treatment for her infection bymedical personnel familiar with the needs of neurological patients. Shortly afterher transfer to the neurology floor, Puckett's blood pressure fell. A team fromthe intensive care unit gave Puckett a central i-v line, and her blood pressurestabilized.

Several hours later, Puckett was transferred to the intensive care unit, where shecontinued to receive antibiotics and fluids. Around 10 a.m., Puckett was placedon a breathing machine, and her condition deteriorated rapidly. Puckett died inthe intensive care unit around 4:30 p.m. An autopsy revealed she had a kidneystone, which caused a severe infection and ultimately septic shock and death.

Vera Townsend (Townsend), special administrator of Puckett's estate, filed a two-count medical malpractice complaint against, inter alia, the hospital and Dr.Chaney, under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)) andthe Survival Act (755 ILCS 5/27-6 (West 1998)). A jury heard the case.

At the close of Townsend's case in-chief, the trial court directed a verdict inthe defendants' favor on the survival count. The jury ultimately returned an$850,000 verdict in Townsend's favor on the wrongful death count. Followingunsuccessful post-trial motions by both parties, including a motion for JudgmentNotwithstanding the Verdict made by the defendants, this appeal and cross-appealfollowed.

DECISION

The defendants raise two issues on appeal. First, they contend the trial courterred in denying their motions for Judgment Notwithstanding the Verdict becauseTownsend failed to present any evidence of proximate cause. Second, they contendthey are entitled to a new trial because of various trial errors.

Judgment Non Obstante Veredicto - Proximate Cause

The trial court should enter judgment non obstante veredicto, or judgment n.o.v.,where "all the evidence, when viewed in its aspect most favorable to the opponent,so overwhelmingly favors movant that no contrary verdict based on that evidencecould ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229N.E.2d 504 (1967); accord Maple v. Gustafson, 151 Ill. 2d 445, 453, 603 N.E.2d 508(1992). Judgment n.o.v. will be granted only if plaintiff fails to prove anessential element of negligence, including proximate cause. Suttle v. Lake ForestHospital, 315 Ill. App. 3d 96, 102, 733 N.E.2d 726 (2000); accord Merlo v. PublicService Co., 381 Ill. 300, 45 N.E.2d 301 (1942); see Borowski v. Von Solbriq, 60Ill. 2d 418, 424, 328 N.E.2d 301 (1975)(proximate cause is an element ofnegligence). A motion for judgment n.o.v. presents a question of law which wereview de novo. Williams v. Hall, 288 Ill. App. 3d 917, 919, 681 N.E.2d 1037(1997); see Keen v. Davis, 108 Ill. App. 2d 55, 62, 246 N.E.2d 467 (1969)("indetermining the propriety of the granting of a motion for judgment n.o.v., areviewing court is confronted with a question of law"); but see Johnson v.National Super Markets, Inc., 257 Ill. App. 3d 1011, 1015, 630 N.E.2d 934(1994)(the reviewing court applies the same judgment n.o.v. standard as the trialcourt).

Before the trial began, Townsend's attorney informed the court the onlymalpractice issues concerned Puckett's care in the emergency room. Townsend'sissues instruction charged the defendants negligently "failed to order or performimaging studies in the emergency room, specifically either a flat plate x-ray, anultrasound or a CT [scan] of the abdomen" or "failed to transfer Debra Puckett toa medical or ICU floor in light of her sepsis."

The defendants contend even if they breached the standard of care, none of thefailures asserted by Townsend was a proximate cause of Puckett's death. Thedefendants direct our attention to Aguilera v. Mount Sinai Hospital MedicalCenter, 293 Ill. App. 3d 967, 691 N.E.2d 1 (1998).

Aguilera visited the Mount Sinai Hospital emergency room with complaints ofnumbness on the left side of his body. Shortly after he was admitted to thehospital, he began to suffer seizures. A CT scan revealed a massive cerebralhemorrhage. Aguilera lapsed into a coma and died three days later.

In a wrongful death medical malpractice action against the hospital, theplaintiff, Aguilera's wife, offered testimony from two expert witnesses. Bothexperts testified the emergency room physician should have ordered an immediate CTscan, given Aguilera's signs and symptoms.

The plaintiff's emergency medicine expert testified a prompt CT scan would havepermitted the medical or surgical intervention that may have saved Aguilera'slife. According to the emergency medicine expert, Aguilera had a greater-than-50%chance of survival if "appropriately diagnosed." Aguilera, 293 Ill. App. 3d at969. The emergency medicine expert asserted the delayed CT scan was "definitelyrelated" to Aguilera's death. Aguilera, 293 Ill. App. 3d at 969. But, assumingAguilera received a prompt CT scan, the emergency medicine expert acknowledged hewould have deferred to a neurosurgeon to decide whether surgical intervention wasappropriate. The plaintiff's neurology expert testified an early CT scan wouldhave permitted effective treatment for Aguilera, neurosurgery to stop the thalamicbleed. According to the neurology expert, Aguilera had a 75-80% chance ofsurvival with prompt treatment. But the neurology expert also acknowledged hewould have consulted, if not deferred to, a neurosurgeon on the appropriateness ofsurgical intervention. The trial court entered judgment notwithstanding theverdict for the hospital.

On appeal, we reviewed Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d1202 (1997) and its view of the "lost chance" doctrine. Holton held the "lostchance" doctrine is not a separate theory of recovery in Illinois, but is aconcept which enters into a proximate cause analysis where the plaintiff allegesthe defendant's negligently delayed diagnosis lessened the effectiveness of itstreatment. Aguilera, 293 Ill. App. 3d at 973 (quoting Holton, 176 Ill. 2d at119). We agreed with the hospital: judgment n.o.v. is appropriate in a wrongfuldeath case "where the evidence reveals that no medical treatment was available forthe decedent's fatal illness." Aguilera, 293 Ill. App. 3d at 974.

We examined the plaintiff's expert testimony and concluded:

"Without supporting testimony from a neurosurgeon, plaintiff's experts' testimonywas insufficient to show that neurosurgery, much less effective neurosurgery,should have occurred absent defendants' negligence.

* * *

*** The absence of expert testimony that, under the appropriate standard of care,an analysis of an earlier CT scan would have led to surgical intervention or othertreatment that may have contributed to the decedent's recovery creates a gap inthe evidence of proximate cause fatal to plaintiff's case. *** Plaintiff failedto offer evidence to a reasonable degree of medical certainty that the allegednegligent delay in administering a CT scan lessened the effectiveness of themedical treatment given to Aguilera." Aguilera, 293 Ill. App. 3d at 975.

This case, like Aguilera, turns on whether the plaintiff's experts left behind aproximate causation gap, bearing in mind "the question of whether defendant'snegligent treatment is a proximate cause of plaintiff's ultimate injury isordinarily one of fact for the jury." Holton, 176 Ill. 2d at 107; see also Suttlev. Lake Forest Hospital, 315 Ill. App. 3d 96, 103-04, 733 N.E.2d 726 (2000).

To answer that outcome determinative question, we turn to the testimony fromTownsend's experts, Dr. Daniel Hancock (Dr. Hancock) and Dr. Bruce Leslie (Dr.Leslie).

Dr. Leslie testified Dr. Chaney deviated from the standard of care by failing toorder imaging tests, which would have indicated whether Puckett had a urinarytract obstruction, and by transferring Puckett to the neurology floor, not theintensive care unit. These deviations contributed to Puckett's death.

According to Dr. Leslie, a urinary tract obstruction must be relieved: "Well, thebottom line is that if a patient has [a kidney infection] behind an obstruction,you can give industrial doses of antibiotics and you won't cure the infection. They will die of the infection." Townsend's attorney asked Dr. Leslie aboutPuckett's chance of survival:

"Q: Doctor, do you have an opinion as to Debra Puckett's chances of survivalwithout the obstruction being relieved?

A: Yes, I do.

Q: And what is that opinion?

A: Zero.

* * *

Q: Now would you have expected, if Dr. Chaney had complied with the standard ofcare by having an [imaging test] performed, would it have been something that shewould have done to actually relieve the obstruction or would that be something forher to call another type of physician?

A: She would call another type of physician, once she made the diagnosis.

Q: And do you have an opinion, Doctor, as to what her chances of survival wouldhave been if the obstruction had been diagnosed?

A: Yes, I do.

Q: And what is that opinion?

A: 40 to 60 percent."

On cross-examination, Dr. Leslie said an imaging test would have increasedPuckett's chance of survival, even if it may not have saved her life. Thedefendants' attorney asked Dr. Leslie about the "next step," if a test revealed akidney stone:

Q: *** I think you indicated, Doctor, didn't you, that whatever doctor, if it wasan internist, found the stone, they would then refer it on to a specialist, isthat right?

A: Yes.

Q: And what kind of specialist would that be?

A: You would have two choices. It would be either an interventional radiologistor a urologist.

Q: But if you had a patient like this, you'd involve one of those specialists,correct?

A: I probably would involve both."

Dr. Hancock testified Dr. Chaney deviated from the standard of care by failing toorder an abdominal x-ray, which would have ruled out a urinary tract obstruction,and by transferring Puckett to the neurology floor, rather than the intensive careunit. These deviations caused or contributed to Puckett's death.

According to Dr. Hancock, Dr. Chaney ordered appropriate antibiotics, but sheshould have considered a kidney stone obstruction: "It's particularly importantbecause antibiotics in nearly any dosage would have had very little effect in thisparticular situation without relieving the obstruction." Townsend's attorneyasked Dr. Hancock about Puckett's chance of survival:

"Q: Doctor, what chance of survival would a patient have had in this setting withthe obstruction not being diagnosed and relieved?

A: Her survivability would approach zero without having the relief of theobstruction and appropriate antibiotic treatment.

Q: And if the obstruction had been diagnosed and treated in the emergency room andrelieved, what chance of survival would the patient have had at that time orappropriate therapy?

A: With relief of the ureteral obstruction and appropriate antibiotic therapy, hersurvival rate would have fallen somewhere between 40 and 60 percent."

On cross-examination, Dr. Hancock said, "With a certain degree of medicalcertainty I would say that simply increasing the antibiotic dosage that shereceived without relieving the obstruction of the ureter would not have providedan increased degree of survivability for her." The defendants' attorneycontinued:

Q: Now, it's your opinion that had she [Dr. Chaney] ordered this test, a [kidneystone] might have been seen ***, right?

A: It might have been seen at the location of the stone of the ureter [found atPuckett's autopsy].

Q: You further testified that if it had been identified, it would requireimmediate attention, correct?

A: Yes.

Q: You're not the type of doctor that would provide that next intervention, areyou?

A: No, that's correct.

Q: What type of doctor would do that?

A: One of two types, a urologist or an interventional radiologist.

Q: Both of which are outside your area of expertise, correct?

A: Yes."

Dr. David Chen, Townsend's physical medicine and rehabilitation expert, offered nocausation opinion. But, on cross-examination, the defendants' attorney asked Dr.Chen about the treatment for kidney stones:

"Q: Doctor, had an obstructive kidney stone been diagnosed, that would have been--basically, the treatment would have gone to a surgeon; isn't that right?

A: A surgeon may have become involved, yes.

Q: The actual treatment for the kidney stone or the obstruction that needed thatkind of treatment would be done by in all likelihood a urologist; isn't thatright?

A: Yes.

Q: And the urologist would be the one who would be trained in determining whatprocedure would be best for the particular patient; isn't that true?

A: Yes."

In her testimony, Dr. Chaney agreed relieving a urinary tract obstruction isimportant to increase antibiotic effectiveness. Townsend's attorney asked Dr.Chaney:

Q: Now, you wouldn't have relieved the obstruction *** yourself?

It would have been your responsibility, if at all, to diagnose whether or not shedid not have an obstruction, correct?

A: Yes, it's correct that I would not have relieved an obstruction.

Q: You would have called in a urologist then for that, right?

A: Somebody would have. Not necessarily me."

Considering Aguilera, we ask: Does this record contain any evidence to support theopinion of plaintiff's experts that the negligent delays (an imaging test ortransferring Puckett to an intensive care unit) "lessened the effectiveness oftreatment"? Aguilera, 293 Ill. App. 3d at 974. Put another way, would an earlierimaging test or an earlier transfer to an intensive care unit "have led tosurgical intervention or other treatment that may have contributed to thedecedent's recovery"? Aguilera, 293 Ill. App. 3d at 975.

Aguilera stands for the proposition that proximate cause in a medicalmalpractice case must be established by expert testimony to a reasonable degree ofmedical certainty. Susnis v. Radfar, No. 1-99-0519, slip op. at 15 (November 3,2000). The causal connection must not be contingent, speculative, or merelypossible. Saxton v. Toole, 240 Ill. App. 3d 204, 210, 608 N.E.2d 233 (1992). Ifthe plaintiff fails to create a proximate cause fact issue for the jury toconsider, no prima facie case is made and a directed verdict against the plaintiffis proper. Wojtowicz v. Cervantes, 284 Ill. App. 3d 524, 532, 672 N.E.2d 357(1996).

In Susnis, the plaintiffs presented ample evidence that the defendant radiologistnegligently failed to interpret x-rays taken of the minor plaintiff. Theplaintiff's expert said the doctor should have known from the chest x-ray that thechild's heart was enlarged. Other doctors relied on the radiologist's evaluation. Eventually, the child went into cardiac arrest and other injuries resulted. Theplaintiffs contended that had the radiologist properly interpreted the x-ray,subsequent doctors would have had the opportunity to treat the child's conditionand possibly avoid or minimize her injuries. We affirmed the trial judge'sdirected verdict in favor of the radiologist. Susnis, No. 1-99-0519, slip op. at17. We held the mere possibility of a causal connection is not enough to sustainthe burden of proving proximate cause. Susnis, No. 1-99-0519, slip op. at 16.

Plaintiff looks to Wodziak v. Kash, 278 Ill. App. 3d 901, 663 N.E.2d 138(1996), for support. In that case the plaintiff's decedent went to a hospitalemergency room complaining of shortness of breath. A respiratory stridor - ablocked-throat whistle - was diagnosed. The defendant doctor ordered observation,then released the patient. Two days later, after losing consciousness, thepatient was taken to another hospital, where doctors discovered a trachealobstruction. Emergency surgery followed. During the surgery the patient suffereda stroke and then developed permanent brain damage. The medical negligencecomplaint alleged the defendant's delay in investigating the cause of the stridorpostponed treatment and was a cause of patient's injury.

We affirmed a verdict for the plaintiff. We were careful to note thatplaintiff's experts testified to a specific procedure - throat dilatation - thatwas postponed by the negligently delayed diagnosis. That is, the delay ininvestigating the cause of the patient's stridor lessened the effectiveness of"definitive treatment." Wodziak, 278 Ill. App. 3d at 913. Feasibility of thattreatment became a jury question.

The record in the case before us does not disclose any potential treatmentfor Puckett's condition, "definitive" or otherwise.

Here, Doctors Leslie and Hancock testified Puckett's chance for survival wouldhave been enhanced had there been earlier diagnosis and treatment. They, alongwith Dr. Chen, said an interventional radiologist or a urologist would haveprovided the treatment. We can glean from the record that the treatment wouldhave been "relief" of the obstruction. Relief of the obstruction would haveimproved Puckett's chance for survival.

The question before us is whether more evidence is needed before the jury isallowed to consider whether the defendants' purported negligence was a proximatecause of injury to Puckett. The defendants claim there is a fatal gap in theevidence, as there was in Aguilera and Susnis. That is, there is no evidence ofwhat a urologist or interventional radiologist would have done to relieve theobstruction. No one said what the treatment would have been. No one said whetherthe right treatment was available or whether Puckett was a candidate for it, inlight of her condition.

No radiologist or urologist testified in this case. We note in Aguilera wesaid a neurosurgeon was the one required to say neurosurgery should have occurredabsent the defendant's negligence.

We conclude the jury in this case was left to speculate about proximatecause. No expert testimony guided its consideration. We do not say that notestimony by plaintiff's experts could have satisfied the causation gap. Wesimply hold no such evidence exists in this case. Saying her chances for survivalwould go from 0% to 60% if "relief" had been provided does not address thecausation gap. That kind of testimony was not enough in Aguilera or Susnis and itis not enough here. Because there was no proximate cause fact issue for the juryto consider, plaintiff failed to make out a prima facie case. The trial courtshould have granted the defendant's motion for judgment n.o.v.

For that reason, we vacate the jury's verdict in favor of the plaintiff andremand this cause to the trial court with directions to enter judgment in favor ofthe defendants. Because of our disposition of this case, there is no need toconsider other issues raised by the defendants in their appeal or by the plaintiffin her cross-appeal.

Reversed and remanded with directions.

BURKE, J., concurs.

HALL, P.J., dissents.

PRESIDING JUSTICE HALL dissenting.

The majority says that there is insufficient evidence of proximate cause, andthat a judgment notwithstanding the verdict should have been entered in thismatter. I respectfully disagree and therefore dissent from the holding of themajority.

The majority recites, yet ignores, the rigorous standard that must be metbefore a judgment may be entered not withstanding the verdict. Whileacknowledging that the issue of proximate cause is ordinarily one for the jury,the majority chooses to substitute its judgment for that of the jury in this case. When a plaintiff comes to a hospital with an existing undiagnosed medicalcondition, and while in the care of the hospital is negligently treated, thequestion of whether the defendant's negligent treatment is a proximate cause ofthe plaintiff's ultimate injury is ordinarily one of fact for the jury. Holton,176 Ill. 2d at 107, 679 N.E.2d at 1207.

The evidence is that the plaintiff's decedent died as a result of anundiagnosed urinary tract obstruction. Doctors Leslie and Hancock testified thatwithout the obstruction being "relieved," the decedent had a zero chance ofsurvival. Had the obstruction been relieved, the plaintiff's decedent had a 40 to60 percent chance of survival. The defendants did not remove the obstruction. The plaintiff's decedent died.

The plaintiff is critical of the failure to call in a urologist or aninterventional radiologist; the failure to order abdominal tests; and the failureto transfer the plaintiff's decedent to the intensive care unit, all of which weredeviations from the standard of care.

The majority opines that the jury is left to speculate about what a urologistor an interventional radiologist would have done to remove the obstruction or whatthe treatment would have been.

However, the instant case differs from Aquilera in this important respect. InAguilera, the expert doctors testified that a prompt CT scan should have beenordered but that had it been done, they did not know for sure what treatment itwould have prompted without a consultation. Aguilera, 293 Ill. App. 3d at 974-75,691 N.E.2d at 6. In the instant case, Doctors Leslie and Hancock testified thatthe obstruction had to be relieved for the plaintiff's decedent to have a chanceof survival. Their testimony that another doctor would have been called upon toperform the relief of the obstruction does not, as in Aguilera, fail to establisha basis for their opinions of proximate cause. The Aguilera experts did not knowif surgical intervention should have been done even if the CT scan been doneearlier; the experts in this case knew and testified what needed to be done tosave the plaintiff's decedent: the obstruction had to be relieved.

Susnis, also relied on by the majority, is equally distinguishable from theinstant case. In that case, the medical experts presented no evidence linking thealleged deviations from the standard of care to the injuries suffered by theinfant. Susnis, slip op. at 16. In the instant case, the medical expertstestified that, had the plaintiff's decedent been properly diagnosed and theobstruction relieved, she could have survived.

I do not believe that evidence as to the specific type of treatment whichwould have been used to relieve the obstruction is necessary to allow a jury todetermine that a failure to render any treatment to relieve the obstruction is aproximate cause of the injury and subsequent death of the plaintiff's decedent. This is not a speculative "leap of faith" that the jury would be required to make,rather a conclusion drawn from the facts presented by the expert evidence.

The jury is charged to determine, from the facts, proximate cause based uponthe expert evidence. Holton, 176 Ill. 2d at 106-111, 679 N.E.2d at 1207-09;Suttle v. Lake Forest Hospital, 315 Ill. App. 3d 96, 733 N.E.2d 726 (2000). Thejury in this case met their responsibility. We should not abrogate their verdictby requiring a multicolored road map when a simple black line will do.