Find Legal Information

JUSTICE KUEHN delivered the opinion of the court:

Following a jury verdict in favor of Anton Schittek, M.D., in this medical malpractice case, and the trial court's denial of her posttrial motion, Irene Hernandez appeals. We reverse and remand.

This case began when Hernandez's primary care physician, Dr. Evelyn Yu, found a lump in her left breast. Dr. Yu ordered a mammogram, which confirmed the presence of the lump and fixed its location in the upper, outer quadrant of the breast. The radiology report indicated that the lump was highly suspicious, requiring "excisional biopsy." Dr. Yu then referred Hernandez to a general surgeon, Dr. Schittek.

Dr. Schittek examined Hernandez's breast and reviewed the mammogram films. Based upon his examination and records review, Dr. Schittek recommended that Hernandez undergo a frozen section biopsy of the lump. In a frozen section biopsy, a portion of the lump is removed. While the patient remains anesthetized, a pathologist microscopically examines the frozen tissue sample. In Hernandez's case, if the pathologist found the presence of cancer within the frozen tissue sample, Dr. Schittek recommended the removal of the upper, outer quarter of the left breast--a procedure known as a quadrantectomy, as well as the removal of certain lymph nodes. If the pathologist did not detect cancer in the frozen tissue sample, then Dr. Schittek only planned to excise the lump. At trial, Dr. Schittek confirmed that there had not been any discussion about what would occur in the event that the frozen section report was inconclusive.

Surgery was scheduled for February 8, 1993. On that date, Hernandez signed a standard consent form for Dr. Schittek's proposed surgical procedures. The form was filled out and witnessed by a registered nurse based upon Dr. Schittek's admission orders. The language of the consent form follows:

"I, the undersigned, authorize Dr. Schittek *** to perform the following operation[--]Left Breast Biopsy, Possible Quadrantectomy and axillary node dissection[--]on Sylvia Hernandez and such additional operations as are considered therapeutically necessary on the basis of findings during the course of said operation."

Hernandez believed that the quadrantectomy would only be performed in the event of cancer.

During surgery, Dr. Schittek made the initial incision and located the lump. The lump was smaller than it appeared on the mammogram. Dr. Schittek removed three lump fragments, which were immediately sent to the pathologist, Dr. Victor Aydt, for frozen section microscopic examination. Dr. Schittek closed the wound with sutures. Dr. Aydt was unable to form any conclusive opinions with the samples provided. He indicated that additional lump tissue could be beneficial in reaching a diagnosis. Dr. Aydt did suspect that the lump was malignant. Dr. Aydt then deferred his diagnosis until a permanent section of biopsied tissue could be performed, as the diagnostic quality improves with a permanent section.

Whether or not Dr. Schittek personally brought Dr. Aydt another small sample with which Dr. Aydt was still unable to make a definitive diagnosis is in dispute. Dr. Schittek testified that he left the operation and went to the laboratory with another sample for Dr. Aydt to analyze. This second sample is not detailed in Dr. Schittek's operative report, dictated on the date of the operation. Furthermore, Dr. Aydt did not testify to a personal visit from Dr. Schittek. What is known is that Dr. Aydt felt that an additional tissue sample could help him in reaching a preliminary diagnosis.

After informing Hernandez's sister that the pathologist could not reach a definitive conclusion with the sample obtained, Dr. Schittek returned to surgery and performed the quadrantectomy. He elongated or continued the previous incision and actually encompassed the first incision, removing approximately one-third of Hernandez's breast. Dr. Schittek testified that he took so much tissue in an effort to avoid the possibility of repeat surgery in the event of a proven malignancy. He did not remove any lymph nodes, as had been his plan in the case of a malignancy. This tissue was submitted to Dr. Aydt for additional testing. Dr. Aydt was surprised with the size of this sample. Dr. Schittek requested additional frozen section examinations, which Dr. Aydt performed. He reported fibrous, cystic, and inflammatory changes pending permanent sections. Again, Dr. Aydt did not want to conclusively rule a malignancy in or out on the basis of the samples examined. Some tissue was preserved and sent to a laboratory for further testing.

After surgery, Dr. Schittek spoke with Hernandez's family. Hernandez's sister reports that Dr. Schittek advised that the tissue samples were inconclusive and that he knew that the lump was cancerous and that the testing would bear his feelings out. He also apologized to the family, stating that they might be mad at him as he opted to perform the quadrantectomy.

Following Hernandez's discharge from the hospital, the laboratory performed the permanent section analysis recommended by Dr. Aydt. The laboratory report, dated February 11, 1993, verified that the mass was benign and specifically stated: "radial scar, florid ductal hyperplasia without atypia and sclerosing adenosis." Dr. Aydt testified that under a microscope, these conditions mimic malignancy and are very difficult to interpret microscopically.

Dr. Schittek called Hernandez at home to advise her that the report indicated that the lump was not cancerous. Thereafter, Hernandez followed up with Dr. Schittek in his office to have a surgical drain removed. Hernandez claims that Dr. Schittek apologized for disfiguring her, while Dr. Schittek denies having made this statement.

There really is no dispute that the surgery has left Hernandez with some disfigurement and disability. The incision stretched from her nipple to under the armpit, causing the nipple to turn outward and leaving a cavity in the area from which the tissue was removed. Additionally, Hernandez experiences a pulling sensation every time she raises her arm.

Hernandez filed suit against Dr. Schittek. Her first amended complaint was in two counts. Count I made standard medical negligence allegations, while count II alleged surgical battery in that Dr. Schittek exceeded Hernandez's consent in performing the quadrantectomy before determining that the lump was cancerous.

At trial, each party's expert witness testified. Both experts were board-certified surgeons. Neither provided opinion testimony with respect to the battery claim or regarding the scope and nature of Hernandez's consent to the quadrantectomy. Hernandez's expert, Dr. Marsha Ryan, testified that Dr. Schittek deviated from the accepted surgical standard of care by performing the quadrantectomy prior to obtaining a definitive pathology diagnosis. Dr. Ryan testified that 80% of all biopsies in this nation are performed with permanent sections and that the few extra days it takes to receive a definitive diagnosis are not detrimental to the patient. Furthermore, even if Hernandez's lump proved to be malignant, Dr. Schittek would still have had to perform an additional surgery to remove the lymph nodes that were not removed during the quadrantectomy. Dr. Ryan concluded that Hernandez had been damaged and that the cosmetic defect would have been minimal if he had simply performed the biopsy taking only an amount necessary for a permanent section.

Dr. Schittek's expert, Dr. Earle E. Peacock, Jr., testified that he believed that Dr. Schittek made only one incision during the surgery and that additional incisions would have been inappropriate. Dr. Peacock testified that in his medical opinion, Dr. Schittek had no choice but to remove additional tissue when informed by Dr. Aydt that the test upon the original tissue sample was inconclusive. He also testified that he did not believe that Dr. Schittek deviated from the applicable surgical standard of care by removing such a large piece of tissue in obtaining this second sample. He explained that his opinion was based on the theory that no one but the surgeon performing the operation can truly say whether or not the sample was too large. He opined that this decision has to be left to the surgeon's own personal judgment.

At the trial's conclusion, the jury found in Dr. Schittek's favor on both counts of Hernandez's complaint. Hernandez appeals.

On appeal, Hernandez initially contends that the trial court erred in failing to direct a verdict in her favor on the civil battery portion of her complaint. The trial court also denied her motion for judgment notwithstanding the jury's verdict on the battery count. On appeal, the court reviews the matter to determine whether "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand." Pedrick v. Peoria Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). Directed verdicts and judgments notwithstanding the verdict are improper where reasonable minds may differ as to inferences or conclusions to be drawn from facts presented, where the evidence demonstrates a substantial factual dispute, or where the assessment of witness credibility or the resolution of conflicting evidence is decisive to the outcome. See Yedor v. Centre Properties, Inc., 173 Ill. App. 3d 132, 140, 527 N.E.2d 414, 419 (1988). We review the trial court's decision on these motions de novo (see Gaffney v. City of Chicago, 302 Ill. App. 3d 41, 48, 706 N.E.2d 914, 919 (1998)), applying the same standard used by the trial court (see Johnson v. National Super Markets, Inc., 257 Ill. App. 3d 1011, 1015, 630 N.E.2d 934, 937 (1994)).

A battery is an unauthorized touching of another's person. See Cohen v. Smith, 269 Ill. App. 3d 1087, 1090, 648 N.E.2d 329, 332 (1995), citing Restatement (Second) of Torts