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No. 3-02-0320

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Plaintiff, Phillip Matuszak, brought a medical malpracticeaction against his treating physician and hospital for damagesallegedly sustained during a colonoscopy procedure. The trialcourt entered judgment on a jury verdict for defendants, andplaintiff timely appealed. In this appeal, plaintiff presentsonly one issue for review: Whether the trial court committedreversible error in allowing defendant's expert witness to renderspeculative opinions regarding the possible causes of his injury.We find the court did not err and we affirm.

FACTS

This present lawsuit arises from plaintiff's 1996colonoscopy involving the use of the drug Versed. The recordreveals that in July of 1996, plaintiff developed abdominalcramping and had blood in his stools. After he had been evaluatedby his family physician, it was recommended that he undergo acolonoscopy in order to further assess his digestive tract.

Colonoscopy is a procedure in which a flexible, lightedinstrument connected to a video screen is inserted into therectum and moved around to permit examination of a patient'slarge intestine. Plaintiff's colonoscopy was performed on July26, 1996, by Dr. Gerald Cerniak at St. Joseph's Medical Center. Prior to the procedure, Dr. Cerniak ordered theadministration of three drugs, Demerol, Phenergan and Versed, toinduce conscious sedation, calming and anti-nausea effects toreduce patient discomfort during the procedure. Versed, whichacts directly on the patient's central nervous system, causesrespiratory depression, which in turn could lead to hypoxia, alack of oxygen in the blood.

During the procedure, the monitoring of oxygen saturationafter the administration of Versed is a critical function, sincea patient whose blood oxygen drops below a certain level for evena short period of time can suffer brain damage, and possiblydeath. Along with other devices for monitoring his vital signs, apulse oximeter, a device attached to the patient's finger, wasused during plaintiff's colonoscopy to record pulse as well as todetermine oxygen saturation in the blood. The oximeter sounds analarm if the blood oxygen falls below the critical 90% level.

Judy Dunham and Barbara Scott, registered nurses employed bySt. Joseph's Medical Center, monitored Matuszak's vital signs andoxygen saturation level at specific intervals during thecolonoscopy. The first notation that the nurses made onplaintiff's medical chart showed that at 10:50 a.m., plaintiffhad been given 75 milligrams of Phenergan and 50 milligrams ofDemerol. A five-milligram dose of Versed was administered at11:55 a.m. Plaintiff's chart showed that he had an oxygensaturation level of 98% at that time, a reading in the upperrange of normal. At noon, plaintiff received another fivemilligrams of Versed; his oxygen saturation was recorded at 90%,the lowest point within the normal range. By 12:15 p.m., hisblood oxygen had risen to 96%, and it remained at that leveluntil the procedure was completed at 12:25 p.m. There was noevidence that the pulse oximeter alarm ever sounded.

Plaintiff was discharged from St. Joseph's at 1 p.m. It wasshown that he had lunch at a local restaurant, visited severalstores and shops, and later that evening, engaged in sexualrelations with his wife. Testimony at trial indicated that suchsexual activity is not possible within 24 hours of an hypoxicevent. Several days after the procedure, plaintiff becameconfused and disoriented, causing his wife to worry. Plaintiffwas hospitalized in mid-August 1996, after a period of confusion,lethargy, and severe headaches.

Plaintiff's wife Judy testified that plaintiff developedsymptoms of confusion and disorientation immediately after thecolonoscopy. She stated that plaintiff's prior medicalimpairments included headaches, dizziness, ear infections, andupper respiratory tract infections. Additionally, she testifiedthat plaintiff had been using the drug Valium on a regular basisfor relief from injuries he sustained in a 1968 automobileaccident.

Subsequent hospital examinations revealed decreased bloodflow to both sides of plaintiff's brain. A Single Photon EmissionComputed Tomography (SPECT) scan, performed at Loyola UniversityMedical Center, provided evidence of diminished brain activity.The scan showed diminished blood flow in the temporal lobe andparietal area of plaintiff's brain. Following the initial testsand hospitalization, plaintiff continued to exhibit the abovementioned symptoms, plus angry outbursts, paranoia, and short-term memory problems.

He was next examined at the Mayo Clinic in Rochester,Minnesota. Doctors at the Mayo Clinic performed a differentialdiagnosis, which accounts for or rules out other medicalconditions that may cause or contribute to plaintiff's presentsymptoms and complaints. This diagnosis led them to conclude thatplaintiff suffers from a "cognitive dysfunction of unknownetiology."

The pertinent issue at trial was whether defendantsdeviated from the standard of care in failing to properlyadminister the appropriate amount of the drug Versed. Plaintifftherefore presented the testimony of various standard-of-careexperts at trial, including Dr. William Cahill, who specializesin internal medicine and is board certified. Dr. Cahill testifiedthat Dr. Cerniak gave plaintiff "too much Versed, which is a verydangerous drug. *** [H]e gave it too quickly. He didn't wait longenough in between the individual doses to be sure on what theeffect of the drug was. He didn't know what it was. He gave ittoo quickly." Dr. Cahill further stated that the oxygensaturation level of 90% was below normal and subsequently causedirreversible damage to plaintiff's brain. He explained that, whena brain is deprived of oxygen, it will recover unless and until athreshold is reached, and after that time, permanent injuryresults. Dr. Cahill concluded that such a threshold was reachedin this case.

Plaintiff next presented the testimony of Dr. WilliamBerger, a board-certified anesthesiologist. Dr. Berger describeddefendants' use of the medication as "way too much" throughoutthe colonoscopy procedure. He also opined that a "reasonablephysician" should "guard against *** giving this much Versed." He further stated that the risk of brain injury existed in thiscase when plaintiff's oxygen saturation reading was recorded at90%.

However, it appeared that plaintiff's medical experts whotestified on causation could not definitely conclude that theadministration of Versed on July 26 caused either an hypoxicevent or plaintiff's conditions. Dr. Ronald Petersen, plaintiff'streating physician at the Mayo Clinic, informed the jury that itwas unlikely that hypoxia was the cause of plaintiff'sconditions. Dr. Petersen examined plaintiff's SPECT scan resultsand concluded "that the SPECT blood flow pattern,interpretations, are nonspecific."

Dr. Morris Fishman, plaintiff's treating physician duringhis hospitalization at Loyola, testified that the testing thathad been performed on plaintiff could not conclusively establishthe origin of his symptoms. Dr. Fishman stated that based on hisexamination and treatment of plaintiff, he could not find "clearevidence for any meaningful structural neurological injury. Norcould [Dr. Fishman] on the basis of the available evidence relateit to the colonoscopy in July." Both doctors relied ondifferential diagnosis to arrive at their conclusions. Each identified several possible causes for plaintiff's symptoms,including Alzheimer's disease, stroke, elevated urinary arseniclevel, rheumatoid arthritis, depression, and an infectiousdisease process suggested by elevated protein levels found inplaintiff's cerebral spinal fluid. Both experts considered thosealternatives and ruled them out. Having also ruled out anhypoxic event as a likely cause, both of plaintiff's treatingexperts reached the conclusion that plaintiff suffered from a"cognitive dysfunction of unknown etiology."

Defendants called Dr. Davidson, who also utilizeddifferential diagnosis to develop the following opinionconcerning the cause of plaintiff's conditions:

"Q. [defense attorney]: Doctor, within areasonable degree of medical certainty, will you sharewith the ladies and gentlemen of the jury what youconsider to be an appropriate differential diagnosis ofthe condition of [plaintiff]?

A. [Dr. Davidson]: I agree with the Mayo Clinicdiagnosis as cognitive dysfunction of unknown etiology.The differential includes some degenerative disease ofthe brain, such as Alzheimer's disease, a progressivedegenerative disease and there's several types.Secondly, a static cognitive dysfunction, which is madeworse by an ongoing psychiatric difficulty or emotionaldifficulty.

Thirdly, he was in a car accident in the 1960's,which caused a significant head injury, at leastsignificant for them to do a number of spinal taps.Fourthly, he did have some abnormalities in his work-upthat weren't entirely explained, such as high arseniclevel in his urine.

He has a history of rheumatoid arthritis, whichcan cause brain problems, he has an unexplainedelevated white count. He had an antinuclear antibodythat was slightly positive, all suggesting he may havean immunological problem. Also he sees an infectiousdisease doctor, who's told him that he has too manyinfections. So he might have a problem with his immunesystem.

***

Q. Now, Doctor, based upon your review of therecords and the testimony, depositions in this case, doyou have an opinion whether that cognitive dysfunctionis related to a hypoxic episode that occurred on July26 of 1996.

A. Yes, I have an opinion.

Q. What is that?

A. There's no evidence in any of these recordsthat he had an hypoxic episode."

Plaintiff objected on the ground that this opinion wasspeculative. The trial court overruled the objection.

Dr. Davidson next explained that differential diagnosis is astandard scientific technique for identifying the cause of amedical problem by eliminating the likely causes until the mostprobable one is isolated. He made plaintiff's differentialdiagnosis "by reviewing the [medical records] and the transcriptsof the depositions." The result of his diagnosis left some ofplaintiff's conditions as possible causes of his cognitivedysfunction and ruled out hypoxia.

On cross-examination, plaintiff's trial counsel confrontedDr. Davidson with Dr. Petersen's testimony, which excludedAlzheimer's disease as a possible cause of plaintiff's symptoms:

"Q. [Plaintiff's attorney:] Am I correct that youfeel one of the differential diagnoses that you havemade, at least, is some progressive dementing illness,such as Alzheimer's?

A. That's a possibility.

Q. Are you aware that *** Dr. Petersen did notfeel Alzheimer's was likely, yet, you disagree withthat?

A. No. I don't think it's likely. It's part of mydifferential. If I thought anything is likely, I wouldsay this is the diagnosis to a reasonable degree ofmedical certainty. I am saying that these are thepossibilities. Now, I am not saying that [plaintiff]likely has Alzheimer's. I just list it as one of thepossibilities." Plaintiff filed his timely appeal, alleging that the trialcourt's refusal to bar Dr. Davidson's "speculative andprejudicial" testimony constituted reversible error.

ANALYSIS

Generally, expert testimony is admissible if the profferedexpert is qualified as an expert by knowledge, skill, experience,training, or education and the testimony will assist the trier offact in understanding the evidence. Friedman v. Safe SecurityServices, Inc., 328 Ill. App. 3d 37, 765 N.E.2d 104 (2002). Thedecision to admit opinion testimony lies within the trial court'ssound discretion, and a reviewing court will not reverse itsdecision absent an abuse of discretion. Van Holt v. National R.R.Passenger Corp., 283 Ill. App. 3d 62, 669 N.E.2d 1288 (1996).

On appeal, plaintiff claims that the trial court should havebarred Dr. Davidson from rendering any opinion regarding otherpossible causes of plaintiff's conditions. Plaintiff does notchallenge Dr. Davidson's credentials but instead maintains thathis differential diagnosis opinion was not admissible because hefailed to rule out other possible causes in reaching hisconclusion. We find this argument without merit.

It is permissible for a medical expert to testify concerninghis or her opinions in terms of possibilities or probabilities.Baird v. Adeli, 214 Ill. App. 3d 47, 573 N.E.2d 279 (1991). Theexpert may testify to what might or could have caused an injurydespite any objection that the testimony is inconclusive. Geersv. Brichta, 248 Ill. App. 3d 398, 618 N.E.2d 531 (1993). Thetestimony need not be based on absolute certainty, but only areasonable degree of medical and scientific certainty. Nowicki v.Union Starch & Refining Co., 1 Ill. App. 3d 92, 272 N.E.2d 674(1971). It remains for the trier of fact to determine the factsand the inferences to be drawn from the testimony. Mesick v.Johnson, 141 Ill. App. 3d 195, 490 N.E.2d 20 (1986).

Our conclusion is consistent with the Illinois Supreme Courtdecision in Field Enterprises v. Industrial Comm'n, 37 Ill. 2d335, 226 N.E.2d 867 (1967). In Field, the claimant's husband diedwhile working at his employer's factory. One of claimant'smedical experts opined that the cause of death was "organic heartdisease of some type and that decedent died of heart failurebecause of it." Field, 37 Ill. 2d at 338. Another medical expert,however, testified that the cause of death was an acute coronaryepisode with a myocardial infarction. The employer's medicalwitness stated that a number of conditions could have caused thedecedent's death in view of his medical history. The IndustrialCommission found in favor of the claimant and awarded hercompensation for her husband's death. On appeal, the employerargued that the Commission's finding that the decedent died of aheart attack was purely speculation and unsupported by theevidence. The employer maintained that the Commission's findingwas not proper in that case because the claimant failed topresent evidence to negate the other reasonable causes for thedecedent's death. Our supreme court affirmed the finding of thecommission, holding that "[t]he claimant was not required tonegate every other possible cause of death to establish death byreason of a heart attack as a legitimate inference from theevidence." Field, 37 Ill. 2d at 339.

We are also provided direction by decisions of the federalcourts addressing the precise issue raised here. In Heller v.Shaw Industries, Inc., 167 F.3d 146 (3rd Cir. 1999), the ThirdCircuit Court of Appeals held that a medical expert's causationopinion should not be excluded because he or she fails to ruleout every possible alternative cause of a patient's medicalproblem. In Heller, the plaintiff brought a personal injury suitagainst a carpet manufacturer, alleging respiratory problemsafter its carpet was installed in her home. Plaintiff's medicalexpert was able to rule out, after conducting a differentialdiagnosis, various possible causes of the plaintiff's respiratoryproblems. He also offered a number of plausible alternativecauses, including dust from other carpets, benzene and 2-butoxyethanol from other sources, and paint and new hardwoodfloors in the house. The trial court granted the defendant'smotion to exclude the expert's testimony because he failed torule out all alternative possible causes of the plaintiff'sillness.

The circuit court reversed. Chief Circuit Judge EdwardBecker, writing for the majority, reasoned: "'[T]o require theexperts to rule out categorically all other possible causes foran injury would mean that few experts would ever be able totestify....'" Heller, 167 F.3d at 156, quoting Capra, The DaubertPuzzle, 32 Ga. L. Rev. 699, 728 (1998). Judge Becker furtherexplained that the alternative causes suggested by the medicalexpert only affected the weight that the jury should give theexpert's testimony and "not the admissibility of that testimony." Heller, 167 F.3d at 157. See also Westberry v. Gislaved Gummi AB,178 F.3d 257, 265 (4th Cir. 1999) ("[A] differential diagnosisthat fails to take serious account of other potential causes maybe so lacking that it cannot provide a reliable basis for anopinion***").

In the instant case, we similarly find that theadmissibility of Dr. Davidson's opinion does not depend upon hisability to disprove every possible cause of plaintiff's injury.Dr. Davidson gave his opinion, based upon a reasonable degree ofmedical certainty, that plaintiff's injuries were caused by anunknown etiology.

Dr. Davidson utilized the process of differential diagnosisto reach his conclusion. In performing his diagnosis, heconsidered several alternative causes of plaintiff's conditionsincluding plaintiff's prior car injury, an immunologicaldisorder, rheumatoid arthritis, or Alzheimer's disease. Dr.Davidson stated that he relied on other experts' testimony andwas aware of plaintiff's medical history. He also reviewedplaintiff's clinical test results, including the SPECT scanresults and the Mayo Clinic differential diagnosis. Hisconclusion was, in fact, the same as that of Drs. Petersen andFishman, two of plaintiff's own experts, even though he did notrule out all other possible causes as they did. None of themfound hypoxia to be a likely cause of plaintiff's symptoms. Weconclude that his testimony assisted the jury in understandingthe evidence and the trial court did not abuse its discretion inadmitting this testimony.

Plaintiff next argues that "there was no reliable evidencethat any of these conditions caused [plaintiff's] condition." Hedraws our attentions to the cases of Reed v. Jackson ParkHospital Foundation, 325 Ill. App. 3d 835, 758 N.E.2d 868 (2001),and Gariti v. Karlin, 127 Ill. App. 2d 166, 262 N.E.2d 179(1970).

In Reed, the trial court barred defendant's medical expertfrom testifying that there was a 20% chance the plaintiff's eyecould have been saved had the eye injury been discovered at theemergency room rather than four days later. The appellate courtaffirmed, holding that the expert "lacked the knowledge of thecondition of plaintiff's eye" when he entered the emergency room.Reed, 325 Ill. App. 3d at 844. In Gariti, the defendant's medicalexpert testified that defendant motorist suffered from a diabeticattack, which caused his vehicle to swerve across the center lineand collide with the plaintiff's car. The reviewing courtconsidered this testimony highly speculative and improper becausethere was no evidence that the defendant was diabetic before theaccident or that his vehicle crossed the center line before thecollision.

Both Reed and Gariti suggest that when an expert's opinionis totally lacking in factual support, it is nothing more thanconjecture and guess and should not be admitted as evidence. Seealso Wilson v. Bell Fuels, Inc., 214 Ill. App. 3d 868, 574 N.E.2d200 (1991).

In this case, however, there is certainly evidence in therecord--from plaintiff's medical history and from clinical tests--to support the differential diagnosis. Dr. Davidson also offeredgood explanations as to why his diagnosis was reliable. Forexample, the evidence showed that plaintiff had a history ofrheumatoid arthritis. Dr. Davidson testified that rheumatoidarthritis was one of the conditions that would predisposeplaintiff to his current neurological difficulties. Further, Dr.Davidson listed plaintiff's prior automobile accident as apossible contributing factor. He pointed out that plaintiff hadsuffered a serious head injury from his 1968 car accident forwhich prescription pain medication was appropriate. We believethese examples are sufficient to give Dr. Davidson reliableground for his conclusion, even though plaintiff did not agreewith that conclusion.

CONCLUSION

For these reasons, we conclude that no reversible error occurred as a result of Dr. Davidson's testimony. The judgment of the circuit court of Will County is affirmed.

Affirmed.

HOLDRIDGE, P.J. and BARRY, J., concur.