Verbance v. Altman

Case Date: 08/16/2001
Court: 2nd District Appellate
Docket No: 2-00-1275 Rel

August 16, 2001

No. 2--00--1275



IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


DAVID VERBANCE,

          Plaintiff-Appellee,

v.

RONALD ALTMAN,

          Defendant-Appellant.

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Appeal from the Circuit Court
of Lake County


No. 98--L--12

Honorable
Terrence J. Brady,
Judge, Presiding.

 

JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, David Verbance, filed this medical malpractice suit againsthis urologist, Dr. Ronald Altman, following a failed laparoscopic procedure toremove a kidney stone. The defendant appeals from a jury verdict of $511,836.78entered against him, arguing that the trial court erred in (1) overruling hisobjection to the causation testimony of Dr. Carey Dachman, one of the plaintiff'sopinion witnesses; (2) overruling his objection to the testimony of Dr. Goldrath,one of the plaintiff's witnesses, on the grounds that the plaintiff failed todisclose Dr. Goldrath as an opinion witness; (3) denying his motions for adirected verdict and for judgment notwithstanding the verdict; (4) giving theissues jury instruction that was tendered by the plaintiff; (5) giving thecircumstantial evidence jury instruction that was tendered by the plaintiff; (6)refusing to give the special interrogatory tendered by the defendant; and (7)overruling his objections to the plaintiff's closing argument. Due to pagelimitations, only the first issue is included in the published portion of thecase, with the remaining six issues designated as nonpublishable pursuant toSupreme Court Rule 23 (166 Ill. 2d R. 23).

The plaintiff consulted the defendant when he experienced pain resultingfrom a kidney stone. The defendant agreed to perform a laparoscopy to remove thestone. During the surgery, the defendant was unable to remove the stone. A fewdays later, another urologist, Dr. Goldrath, performed a laparoscopy. When heinjected dye into the plaintiff's bladder, he noted that the dye leaked out ofthe bladder. He then successfully removed the kidney stone. Following thesurgery, urine leaked out of the plaintiff's bladder. For a four-year periodfollowing the surgery, the plaintiff experienced great pain in his groin area,for which he sought treatment from a number of medical providers. The painultimately resolved after surgery to block the plaintiff's genitofemoral nerve.

The defendant filed a motion in limine to bar Dr. Carey Dachman, one of theplaintiff's treating physicians, from giving proximate cause testimony. Thedefendant argued that Dr. Dachman was not qualified to give such testimony. Thetrial court denied the motion.

At trial, the defendant, a urologist at Good Shepard Hospital, testifiedas to how he performed the laparoscopy on July 31, 1992. After the plaintiff wasanesthetized, the defendant inserted a cytoscope into the plaintiff's urethrathrough his penis. He pushed the cytoscope into the bladder, allowing him to seeinside the bladder. He then performed a cystoscopy, which revealed normalfindings in the bladder.

The defendant then performed a retrograde examination of the ureter, aprocedure in which dye is injected through a catheter into the ureteral orifice,which is the opening to the ureter. During the procedure, the defendant saw thekidney stone. He then removed the catheter and inserted a guidewire. He wasable to visually follow the path of the guidewire via fluoroscope as it traveledup the ureter. He then saw the end of the guidewire curled in the kidney, whichindicated that the guidewire was properly placed within the ureter.

The defendant then inserted a dilating balloon over the guidewire, throughthe cytoscope, and into the ureter. Using the guidewire, he placed the ballooninto the ureteral orifice and then into the ureter. The balloon lost pressureas it began to inflate. The dye contained in the balloon was no longer visibleon the fluoroscope screen. He withdrew the balloon and observed some bleedingfrom the ureteral orifice, which is a common during this type of surgery. Sometime thereafter, the guidewire slipped out.

While maintaining a clear vision of the ureteral orifice, he attempted toreplace the guidewire into the ureter. When he attempted to place the guidewireinto the ureteral orifice, the wire resisted and did not move more than half an inch. He tried to place the guidewire four or five times. He then performed aretrograde injection and saw dye going outside the urinary tract. This indicatedthat there had been muscosal tear and extravasation of dye outside the normalurinary tract. He then removed all instruments and terminated the operation.

The defendant noted in his operative report that the balloon had burstduring dilation. He also stated this to the plaintiff following the surgery. On cross-examination, he admitted that the balloon did not break and furtheradmitted that he did not change his report to reflect this.

The plaintiff sought a second opinion from Dr. David Goldrath, who was alsoa urologist at Good Shepard Hospital. Five days after the first surgery, Dr.Goldrath performed a ureteroscopic procedure on the plaintiff. Dr. Goldrathtestified that the surgeon is supposed to insert the guidewire into the ureteralorifice and hope that the wire finds its way into the ureter.

Dr. Goldrath found that the plaintiff's ureteral orifice had not beendilated. When he injected dye into the area of the ureteral orifice, it wentoutside the bladder instead of into the ureter. He testified that this was nota normal finding. When he inserted a guidewire, it did not go into the ureter. The guidewire went outside the bladder and along the path where the dye had gone.

Dr. Goldrath then inserted another lens and saw a large opening through thebladder wall. The hole was next to the actual ureteral orifice. The hole wasround and was not irregular in shape. He estimated the size of the hole to beabout 15 french, which is about one centimeter and is the size of an inflatedballoon dilator.

Because the hole looked like a balloon dilator hole, Dr. Goldrath noted inhis report of the surgery that it was apparent to him that the area had beenpreviously dilated during the plaintiff's first surgery. Dr. Goldrath testifiedthat a "false passage" had been created on account of the hole and the apparentdilation. Because there was no evidence of normal ureteral mucosa in the areaof the hole, he concluded that the hole was in the bladder and not in the ureter. He did not find any evidence of a dilation hole in the area of the ureteralorifice where it should have been.

Dr. Goldrath testified that he placed the guidewire into the ureteralorifice and passed it into the kidney. He then placed a balloon dilator into theorifice. Next, he removed the balloon dilator and placed the ureteroscopealongside the guidewire into the ureter. The ureter appeared normal and themucosa was intact. This indicated that the area had not been dilated previously. Dr. Goldrath then successfully removed the stone from the plaintiff's leftureter. Dr. Goldrath was not asked any questions regarding his opinions on thebreach of the standard of care or causation.

Prior to Dr. Goldrath's testimony, the defendant orally moved to bar Dr.Goldrath from testifying on the ground that the plaintiff had not disclosed Dr.Goldrath as an opinion witness in accordance with Supreme Court Rule 213(g) (177Ill. 2d R. 213(g)). The trial court denied the motion. On cross-examination,the defendant asked Dr. Goldrath whether he had an opinion as to whether thedefendant had breached the standard of care, to which he responded that he hadno opinion.

Dr. Joseph Davis testified for the plaintiff as a retained opinion witness. Dr. Davis testified that Dr. Goldrath's findings were abnormal and unusual. Hetestified that Dr. Altman violated the standard of care and that the violationscaused damages. He opined that the defendant had not properly placed theballoon, as evidenced by the dye going outside the bladder, causing damage to theperiureteral tissue. He also testified that the bladder perforation was causedby the defendant's violations of the standard of care. He based that opinion on the findings of Dr. Goldrath that a hole existed in the bladder, that theureteral orifice was intact, and that there was no evidence of trauma to theplaintiff prior to the surgery and on the fact that Dr. Goldrath successfullyperformed the stone removal.

Dr. Davis testified that urine, dye, and instrumentation had passed throughthe bladder hole and into the area outside the bladder. He opined that urine wasextravasating into the plaintiff's retroperitoneum for at least 10 to 14 daysafter the injury. The hole was near the bottom of the bladder such that, whenthe plaintiff moved, urine must have leaked out.

Dr. Davis testified that, even if the defendant's version of the facts wastrue, the defendant violated the standard of care. In a hypothetical questionassuming the defendant's version of the facts, Dr. Davis testified that, at thetime that the defendant observed bleeding and knew that there was extravasationof dye on the second attempt at retrograde, the defendant should have stopped theoperation and should not have tried to blindly put the guidewire in. Dr. Davisopined that the defendant should not have made four or five attempts to getaccess to the ureteral orifice.

On cross-examination, Dr. Davis testified that, at times during aureteroscopy, the guidewire punctures a hole in the ureter, which does notnecessarily indicate negligence on the part of the surgeon. It is alsorecognized that bleeding can occur after dilation.

Dr. Carey Dachman, who was board certified in internal medicine,rheumatology, and clinical pain management, testified as one of the plaintiff'streating physicians. He testified that he first saw the plaintiff on April 14,1995, at which time he took a history of the plaintiff's pain symptoms. Thephysical examination of the plaintiff revealed dysesthesia, an abnormal sensationon the inside left thigh. That meant that there was a localized nerveirritation. He also ordered an EMG and MRI scan, which were normal. Dr. Dachmandiagnosed the plaintiff with causalgia and a regional myofascial syndrome. Dr.Dachman opined that the genitofemoral nerve more likely than not was damagedbased on the locale of the dysesthesia.

Dr. Dachman also described his treatment of the plaintiff. Over a periodof approximately four years, he prescribed medications to help reduce the nerveirritation and muscle spasm. He also gave him injections and recommendedphysical therapy and acupuncture. Due to the plaintiff's continuing pain andresulting depression, Dr. Dachman referred him to a neurosurgeon to have thegenitofemoral nerve either blocked permanently or cut.

Dr. Dachman testified that, in October 1998, Dr. Starling, a neurosurgeon,performed a genitofemoral neurectomy on the plaintiff. Following the surgery,the plaintiff's condition improved markedly. Eventually, the plaintiff did nothave any additional pain in the genitofemoral region. During Dr. Dachman's lastphysical of the plaintiff, on March 11, 2000, Dr. Dachman noticed that theplaintiff had no significant pain. He had no additional treatmentrecommendations.

Dr. Dachman's medical records were admitted into evidence withoutobjection. In his first written summary of the plaintiff's condition, datedDecember 16, 1995, Dr. Dachman noted that the plaintiff had causalgia secondaryto initial ureteral extravasation, genitofemoral nerve neuropathy, femoralplexopathy, and fibrosis most likely present secondary to the extravasation.

Regarding the cause of the plaintiff's condition, Dr. Dachman testifiedthat there was:

"no question that something happened during the surgery that caused thegenitofemoral nerve injury. On the basis of the history, it appears to bethe extravasation. *** All I am aware of historically is theextravasation; therefore, I talk about the extravasation as causing nerveinjury. Perhaps that or something else, I am not certain of, butsomething during that surgery, did, indeed cause the nerve injury."

On cross-examination, Dr. Dachman could not identify any specific mechanism ofinjury and could not explain why extravasation would cause a genitofemoral nerveinjury.

Frankie Siatta, a registered nurse, was called by the plaintiff. Siattawas the circulating nurse during the plaintiff's surgery with the defendant. Siatta observed that the defendant was irritated, impatient, and aggravatedduring the surgery. The defendant also made unsubstantiated complaints about theequipment and supplies in the room. She heard the defendant say that the balloonhad ruptured, causing damage and bleeding. She later inspected the balloon, andreinflated it a number of times without a problem. She concluded that theballoon was not damaged.

The plaintiff testified that he was 39 years old and married with twochildren at the time of trial. He had a master's degree in business and workedon the investment side of an insurance company. Prior to July 31, 1992, he hadbeen very active in bowling, golf, basketball, and racquetball. He had no painin his testicle, groin, or thigh.

Following the surgery with the defendant, the pain was so bad he was"crying like a baby. *** The pain was significantly worse than it was at theworst point of the pain with the stone." He described the pain as feeling "likesomebody had a wrench on my left testicle." He remained on a morphine pump forpain until the time of his second surgery with Dr. Goldrath. After Dr. Goldrathremoved the stent he had placed during the surgery, the plaintiff continued tofeel pain, which had gotten progressively worse. He continued to see Dr.Goldrath for approximately one year and had various tests performed to ascertainthe source of the pain. The pain "originally started out where it was just sortof some testicle pain. *** And then it radiated into my groin area very firmly.*** The worst part was the testicle pain, the left testicle pain. Then itradiated into my thigh."

Dr. Goldrath eventually referred him to Dr. Magee, a pain managementspecialist. Dr. Magee gave him injections for his pain. Although the injectionsin his groin were very painful, they helped relieve the pain in his testicle fora while. However, the pain in his thigh and groin got worse, and the hip flexormuscle that ran from his hip to his groin was "getting ripply." Thereafter, anyphysical activity, including walking, was painful.

The plaintiff saw several doctors and was eventually referred to Dr.Dachman in 1995. He had injections and physical therapy with Dr. Dachman andalso took pain medication and muscle relaxers. In 1998, he was referred to Dr.Starling, who performed surgery "to cut the nerve." A few weeks after thesurgery, the pain started to subside.

The pain that he suffered following the operation strained his relationshipwith his wife and made him irritable. He did not want to be around anyone dueto the pain. He missed work due to the pain but did not claim lost wages. Therewas never a time between the surgeries performed by Dr. Altman and Dr. Starlingthat he was pain free. He was on pain medications during that entire time.

Dr. Dennis Pessis, a urologist, testified for the defendant that he hadmet the standard of care in performing the surgery and in attempting to replacethe guidewire. He testified that there is always a possibility of creating ahole in the ureter in this type of surgery. On cross-examination, however, headmitted that, if the urologist is "in the bladder" and has dilated a hole, itwould be a violation of the standard of care.

Dr. Pessis testified that he has had cases where dye or urine extravasatedduring a ureteroscopic procedure; such an occurrence is a recognizedcomplication. When the removal of a kidney stone required open surgery, urineand dye would bathe the area of the genitofemoral artery. In such cases, he hadnever seen a patient who suffered an injury to his genitofemoral nerve as aresult. Therefore, Dr. Pessis testified that he could not see any relationshipbetween the surgery performed by the defendant and the plaintiff's nerve injury.

Dr. Jeffrey Kramer, a neurologist with a specialty in dizziness disorders,also testified for the defendant. He testified that the operation performed bythe defendant did not cause damage to the plaintiff's genitofemoral nerve. Ifa person is lying on his back, gravity would pull any extravasation of urine ordye away from the genitofemoral nerve. In addition, there are other structuresthat the fluid would have to pass to reach the genitofemoral nerve. Becausethere was no evidence of any injury to those other structures in the plaintiff'scase, Dr. Kramer reasoned, there was no evidence that the plaintiff'sgenitofemoral nerve was damaged by urine or dye. However, on cross-examination,he admitted that testicular pain is a symptom of irritation of the genitofemoralnerve.

Dr. Kramer further testified that his understanding that the plaintifffirst complained of genitofemoral pain three weeks after surgery indicated thatthe surgical procedure did not injure the nerve because a nerve injury wouldcause immediate pain. However, on cross-examination, Dr. Kramer acknowledgedthat the initial notes made by nursing staff following the surgeries indicatedthat the plaintiff complained of pain. In addition, Dr. Kramer acknowledged thathis office did not have a device to test for the presence of genitofemoral nervedamage but that the clinic where the plaintiff was tested had such equipment.

The trial court denied the defendant's motion for a directed verdict at theclose of the plaintiff's case. The trial court accepted, over the defendant'sobjection, the plaintiff's issues instruction, which recited two issues: "a.[c]reating a hole in the bladder with a guidewire; and b. [f]ailing to stop thesurgery once it became apparent that it could not be completed safely." Thetrial court refused the issues instruction tendered by the defendant, which readas follows: "[c]reated a hole in the bladder upon attempting to reinsert the [guidewire]."

Over the defendant's objection, the trial court gave the plaintiff'stendered circumstantial evidence jury instruction.

The trial court also refused to tender the defendant's proposed specialinterrogatory, which read, "Was Dr. Altman negligent in his attempt to replacethe guidewire after it had been expelled from the ureter?" The trial court alsorefused a revised special interrogatory tendered by the defendant, which read asfollows: "Was Dr. Altman negligent in creating a hole in the bladder andattempting to replace the [guidewire] after it was initially expelled from theureter instead of stopping the procedure?" The jury returned a verdict for theplaintiff for medical care and for pain and suffering.

As an initial matter, we note that the defendant has failed to file theexhibits entered into evidence with the trial court record on appeal. We notethat the responsibility for the proper preservation of the record before thetrial court rests on the appellant. In re W.L.W., 299 Ill. App. 3d 881, 884(1998). If the appellant fails to preserve the record for appeal, he waives hisright to the review of that record on appeal. In re W.L.W., 299 Ill. App. 3d at884. Therefore, the defendant has waived any arguments contained in his briefthat are unsupported by the record.

THE CAUSATION OPINION TESTIMONY BY DR. DACHMAN

The defendant's first argument on appeal is that the trial court abused itsdiscretion in overruling his objections to the testimony by Dr. Dachmanconcerning proximate cause. Relying on Soto v. Gaytan, 313 Ill. App. 3d 137(2000), the defendant argues that Dr. Dachman's testimony was speculative.

In Soto, we considered whether the trial court abused its discretion inadmitting the testimony of a chiropractor concerning the permanent nature of theplaintiff's injuries. The defendant had argued that the testimony should beexcluded because the chiropractor's last examination of the plaintiff was notrecent to the time of trial. The trial court rejected this argument,notwithstanding well-settled case law holding that a medical treater may nottestify at trial regarding the permanency of a patient's injuries absent a recentexamination. Soto, 313 Ill. App. 3d at 143.

On appeal, we rejected the plaintiff's argument that the issue of therecency of the examination went to the weight of the testimony, not theadmissibility, and that the testimony of the treater should be submitted to thejury without any analysis by the trial court as to the reliability of thetestimony. Soto, 313 Ill. App. 3d at 144-45. In examining case law concerningthe admissibility of an expert's testimony, particularly that by medicaltreaters, we concluded that the court frequently employs a totality-of-the-circumstances approach in determining whether the testimony is sufficientlyreliable to be submitted to the jury. Soto, 313 Ill. App. 3d at 145. We notedthat, "[a]s the gatekeeper of expert opinions disseminated to the jury, the trialcourt plays a critical role in excluding testimony that does not bear an adequatefoundation of reliability." (Emphasis added.) Soto, 313 Ill. App. 3d at 147. We then set forth certain factors that the trial court may consider indetermining whether the opinion testimony concerning permanency was sufficientlyreliable to submit to a jury. Soto, 313 Ill. App. 3d at 147. We concluded thatthe trial court abused its discretion in permitting testimony concerningpermanency that did not bear sufficient indicia of reliability. Soto, 313 Ill.App. 3d at 148.

Our supreme court has expressed approval of Soto's gatekeeping approach. Decker v. Libell, 193 Ill. 2d 250, 254 (2000). The court noted, "[t]rial courtsroutinely bar evidence because it is irrelevant or unreliable, and we see noreason to apply a different rule in this context. Under this approach, the trialjudge serves in a familiar role as 'gatekeeper,' barring testimony that is notsufficiently relevant or reliable to be admitted into evidence." Decker v.Libell, 193 Ill. 2d at 254.

In the present case, the defendant filed a motion in limine to bar Dr.Dachman from testifying as to proximate cause, arguing that Dr. Dachman'stestimony was based upon guess and speculation in that Dr. Dachman testified thathe did not know whether the defendant's attempt to replace the guidewire causedthe plaintiff's nerve injury. In denying the defendant's motion, the trial courtindicated that it was considering "the factors" from Soto. The trial courtpointed to the following factors in ruling Dr. Dachman's testimony admissible:that Dr. Dachman was a treating rheumatologist; that the plaintiff hadspecifically sought out Dr. Dachman for treatment of the pain that began after thesurgery; that the plaintiff had described to Dr. Dachman the onset of the pain;and that Dr. Dachman has expressed "a strong opinion in his judgment that there'sa causal relationship."

The defendant also objected to the causation opinions during Dr. Dachman'sdirect testimony, which the trial court overruled. The testimony concerningcausation that the defendant objected to is as follows:

"I believe that there is no question that something happened during thesurgery that caused the genitofemoral nerve injury. On the basis of thehistory, it appears to be the extravasation. *** All I am aware ofhistorically is the extravasation; therefore, I talk about the extravasationas causing nerve injury. Perhaps that or something else, I am not certainof, but something during that surgery, did, indeed cause the nerve injury."

The main problem with the defendant's argument is that he does not attackthe reliability of Dr. Dachman's opinion but, rather, would like for us toconclude that Dr. Dachman's testimony was weak and untenable. This is not aviable argument on appeal. The defendant's attack on the quality of Dr. Dachman'stestimony is evident by the fact that the defendant bases much of his abuse ofdiscretion argument on the testimony the defendant elicited on cross-examination. The defendant would have us review the direct and cross-examination testimony todetermine that Dr. Dachman's testimony was insufficient to survive the motion inlimine and the objection during direct examination. This is not the purposebehind Soto's gatekeeping approach.

The defendant clearly misapprehends Soto. In Soto, we acknowledged thetrial court's gatekeeping role because the rules of evidence grant expertwitnesses testimonial latitude unavailable to other witnesses on the assumptionthat the expert's opinion will have a reliable basis in the knowledge andexperience of his discipline. See generally Kumho Tire Co. v. Carmichael, 526U.S. 137, 148, 143 L. Ed. 2d 238, 250, 119 S. Ct. 1167, 1174 (1999). Forinstance, experts may testify to opinions, including those that are not based onfirsthand knowledge or observation. Experts tie observations to conclusionsthrough the use of general truths derived from specialized experience. Kumho, 526U.S. at 148, 143 L. Ed. 2d at 250, 119 S. Ct. at 1174. The expert's testimonywill often rest upon an experience that is foreign to the jury. Kumho, 526 U.S.at 149, 143 L. Ed. 2d at 251, 119 S. Ct. at 1174-75. The trial judge's effort toassure that the specialized testimony is reliable and relevant can help the juryevaluate that foreign experience. Kumho, 526 U.S. at 149, 143 L. Ed. 2d at 251,119 S. Ct. at 1174-75.

The objective of Soto's gatekeeping requirement is to ensure the reliabilityand relevancy of an expert's testimony. It is to make certain that an expertemploys in the courtroom the same level of intellectual rigor that characterizesthe practice of an expert in the relevant field. See generally Kumho, 526 U.S.at 152, 143 L. Ed. 2d at 252, 119 S. Ct. at 1176. A trial judge must haveconsiderable leeway in deciding in a particular case how to go about determiningwhether a particular expert's testimony is reliable. See generally Kumho, 526U.S. at 152, 143 L. Ed. 2d at 252, 119 S. Ct. at 1176.

We believe that the trial court did an excellent job of explaining thegatekeeping role under Soto:

"[j]ust because the expert says he is qualified does not mean he isqualified, and we charge that duty and obligation upon the shoulders and theback of the trial court, if you will, to go into a more intense analysis inthe adversarial system."

Soto clearly does not stand for the proposition that the court is to examine thetreater's conclusion and ask whether it makes any sense. Soto stands for theproposition that the court should look at the basis behind the formation of theopinion and ask whether the foundation is really there.

In this case, we do not believe that the trial court abused its discretionunder Soto. The purpose for our decision in Soto, approved by our supreme courtin Decker, was to compel the trial court to analyze thoughtfully whether medicaltestimony bears sufficient indicia of reliability to be submitted to a jury ratherthan simply to rubber-stamp opinion testimony just because it happens to come froma medical professional. Under Soto, the trial court has the discretion to barmedical testimony that lacks any basis.

Far from what occurred in Soto, in the present case it is clear that, whenDr. Dachman's testimony was challenged by the defendant, the trial courtspecifically undertook a review of the basis of Dr. Dachman's testimony and foundthat it was sufficiently reliable to submit to a jury. The trial court'sstatement that it was considering "the factors" from Soto was technicallyincorrect, since Soto suggested factors to consider in determining whethertestimony concerning permanency is sufficiently reliable. Nonetheless, we arepersuaded that the trial court's consideration of Dr. Dachman's specialty, theplaintiff's history that he obtained, and the treatment Dr. Dachman provided werein keeping with the spirit of Soto.

It is apparent that the defendant has a poor opinion of Dr. Dachman'stestimony that "something must have happened." Once again, the defendant asks usto pass judgment on the quality of the evidence rather than confining our reviewto the existence of a basis for the testimony. Whether we believe that Dr.Dachman's testimony was weak is irrelevant in this context. What is relevant isthat Dr. Dachman testified that he is a pain specialist, took a history from theplaintiff including the type and onset of the pain, treated the plaintiff over aperiod of years, prescribed therapy and medications to no avail, and ultimatelyapproved of a neurectomy, which provided the plaintiff with relief. It is clearfrom the foregoing that Dr. Dachman had a sufficient basis to form an opinion asto the cause of the plaintiff's pain regardless of how strongly that opinion cameacross in court. Any arguments by the defendant concerning the quality of theconclusions formulated by Dr. Dachman should have been addressed in cross-examination and in closing argument. In addition, we note that Dr. Dachman'sopinions regarding causation were contained in his early reports concerning theplaintiff. Those reports were admitted into evidence without objection, and itwould be foolish indeed to bar Dr. Dachman from testifying about his own reportsthat were properly admitted into evidence. Because we are persuaded that thetrial court undertook the proper review of Dr. Dachman's testimony under Soto, wehold that the trial court did not abuse its discretion in admitting the testimony.

A recent medical malpractice case is particularly helpful to our analysis. In Snelson v. Kamm, 319 Ill. App. 3d 116 (2001), the defendant-physician arguedthat the trial court abused its discretion in permitting the testimony of theplaintiff's nontreating expert, who had opined that the defendant was negligentin failing to perform revascularization surgery to restore the plaintiff's bloodcirculation. Snelson, 319 Ill. App. 3d at 135. The defendant made a foundationalobjection, arguing that the expert lacked certain clinical experience and that nomedical literature existed that would support the expert's theory. The reviewingcourt rejected the defendant's arguments, noting that the expert had reviewed manyreports and other information relevant to the case.

The court also commented upon the appropriateness of the defendant'sarguments. The court noted that the defendant's arguments concerned the qualityof the testimony offered by the defendant:

"Although [the defendant] has alleged several ways in which [theexpert]'s opinion is flawed, he has not demonstrated that [the expert]'sopinion included 'so many varying and uncertain factors' that he wasrequired to guess to reach his conclusions. Instead, [the defendant]'sconcerns constitute appropriate topics for cross-examination." Snelson, 319Ill. App. 3d at 136.

As in Snelson, we are persuaded that the defendant in this case has notattacked the reliability of the basis of Dr. Dachman's opinion but, rather, hasattempted to persuade us that Dr. Dachman's testimony was weak. The defendant hasmisconstrued the requirements of Soto, namely, that the trial court engage in athoughtful analysis of whether an expert's testimony bears sufficient indicia ofreliability by examining the factors that comprise the basis for the opinion. Inthis case, the trial court did not abuse its discretion in permitting Dr. Dachmanto offer testimony on causation.

[Nonpublishable material pursuant to Supreme Court Rule 23 removedhere.]

 For the foregoing reasons, the judgment of the circuit court of Lake Countyis affirmed.

Affirmed.

O'MALLEY and GROMETER, JJ., concur.