Lead Opinion
delivered the opinion of the court:
Plaintiff, Joyce Ayala, individually, and as special administrator of the estate of her daughter, Michelle Ayala, brought this medical malpractice action seeking damages for the alleged injury and wrongful death of Michelle. Following the presentation of plaintiffs case-in-chief, the trial court granted the motions of defendants Tariq Murad, M.D., Tariq Murad, Ltd., and Barrington Pathology, Ltd., for a directed verdict on the grounds that plaintiff had failed to prove the proximate cause element of her claim.
On April 8, 1998, Michelle Ayala, who was 18 years old at the time, had a large tumor surgically removed from her abdomen by Dr. Regis Weiss at Good Shepherd Hospital in Barrington, Illinois. Tests performed at the time by Dr. Murad, a pathologist, indicated it was a noninvasive borderline ovarian tumor. Approximately 18 months later, Michelle was diagnosed as having a stage IV ovarian tumor with the cancer having spread or metastasized to her lungs and the bone of her spine. On September 9, 2000, Michelle died of low blood pressure and other complications of metastatic ovarian cancer. Plaintiff ultimately filed a medical malpractice complaint against Dr. Murad, individually, and as an agent for Tariq Murad, Ltd., and Barrington Pathology, Ltd., under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)) and the Survival Act (755 ILCS 5/27 — 6 (West 1998)).
During the jury trial, Dr. Regis Weiss, a gynecologic oncologist, testified that he first examined Michelle in the spring of 1998. She had recently lost a considerable amount of weight by choice but did not lose abdominal girth. Michelle’s family physician, Dr. Ferolo, referred her to Dr. Weiss after discovering a very large mass filling her abdomen, which was confirmed by a CT scan. Michelle had a very distended abdomen and, as best as Dr. Weiss could tell, it extended from her rib cage, down to her pubic bone, and out into the flanks, which constitute the sides of the abdominal wall, аnd filled all the available space. He thought it was probably a benign mucinous tumor due to its size and Michelle’s age. Dr. Weiss testified that the larger the tumor, the less likely it is to be malignant, and that malignancies are usually more symptomatic before reaching such a large size. Dr. Weiss scheduled surgery to remove the mass and informed Michelle that he would possibly need to do a second operation if something malignant were found.
During Michelle’s surgery on April 8, 1998, Dr. Weiss felt the surface of her tumor, which did not appear to be attached to the abdominal wall, intestine, or anything behind it, which meant it was more likely benign. Due to the size of the growth, which was over 60 pounds, Dr. Weiss сhose to decompress it by suctioning out approximately six gallons of liquid. The remaining mass, which weighed about nine pounds, was also removed and sent along with two fluid samples to the pathologist. While awaiting the results, Dr. Weiss observed various organs and portions of the abdomen and did not feel or see any abnormalities.
The pathologist, Dr. Murad, telephoned during the surgery and said it was a mucous-type tumor, and while he saw some borderline changes in focal areas, it did not appear to have any invasion. Dr. Weiss then closed the patient and did not take any further action. If Michelle’s tumor had been diagnosed as malignant, Dr. Weiss would have done washings from various areas of the abdomen, taken additional samples, removed the omentum, and done a lymph node dissection. Within several days of the surgery, Dr. Weiss received a final written report from Dr. Murad which was a product of a complete sampling of the tissue and fluid provided. Dr. Murad concluded that Michelle’s growth was a mucinous ovarian tumor of low malignant potential or a borderline tumor. Dr. Weiss shared the results of the pathology report with Michelle and her mother in April 1998 and told them “that while it was not a benign tumor, a borderline tumor was not as worrisome as cancer.” During the 14 months following the surgery, Dr. Weiss did four follow-up examinations and did not discover any abnormalities. In September 1999, he was told by Dr. Ferolo that Michelle was found to have a femoral or bony tumor, and when they investigated, she also had tumors in her lungs.
Dr. Murad testified he is a board-certified pathologist and he, and his partner, Dr. Raja Bahu, perform pathology services at Good Shepherd Hospital. On April 8, 1998, he inspected Michelle’s tumor after it was sent to the pathology lab from the operating room. Dr. Murad found no obvious macroscopic or visual invasion. He also made four frozen section slides from the nine-pound tumor. When Dr. Mu-rad looked at the frozen sections under a microscope, he saw only a borderline tumor. A bordеrline tumor of the ovary is the same as a tumor of low malignant potential. Dr. Murad contacted Dr. Weiss during the surgery and informed him that the tumor was borderline. He subsequently took several slices throughout the nine-pound tissue sample which resulted in 21 permanent section slides. On April 9, 1998, he examined each of the slides under a microscope and provided a two-page pathology report which contained the following diagnosis: “right tube and ovary, mucinous ovarian tumor of low malignant potential (borderline tumor), see microscopic description.” In the microscopic description, he wrote, “no invasion is identified in any of the sections examinеd, and there are areas in which the lining is that of a single layer of mucinous secreting columnar type cells with basal nuclei.” He wrote “absent” in the column pertaining to vascular invasion. Dr. Bahu also looked at Michelle’s slides and agreed that it was a borderline tumor.
Dr. Robert Mandal testified he was Michelle’s primary medical oncologist from September 1999 until her death. When Michelle became his patient, she had stage IV ovarian cancer which had already spread to the lungs and the bone of the spine. As a medical oncologist, Dr. Mandal treats cancer patients with chemotherapy and other injectable or orally administеred modalities. He opined that Michelle’s tumor most likely spread through the blood from her ovary. Five different chemotherapy regimens were tried on Michelle, but none worked. Dr. Mandal testified that stage IV ovarian cancer which has metastasized to the lung and bone, according to the Federation of International Obstetricians and Gynecologists (FIGO) standards, is incurable, regardless of the chemotherapy used.
Plaintiff presented the testimony of two retained medical witnesses, Dr. William Welch and Dr. Donald Goldstein. Dr. Welch, a gynecologic pathologist at Brigham and Women’s Hospital in Boston, Massachusetts, testified that he reviewed the complеte set of slides prepared by Dr. Murad, including the frozen section slides. Dr. Welch testified that surgeons rely heavily on what the pathologist reports, especially as to whether the pathologist refers to something as benign or malignant. The features that are found in a tumor are also extremely important for the oncologist when making decisions as to what the next stage will be for the patient’s care. He testified that a borderline mucinous tumor of the ovary generally “implies that the epithelial lining of the cysts of one of these multicystic tumors has proliferated to a degree that some of the cells are piling up on top of each оther. And there may be some degree of atypicality in those cells. They don’t look nice and orderly and well behaved like a benign tumor would.”
Dr. Welch further testified that Michelle’s tumor was “predominantly borderline,” but within this borderline tumor, there was “the development of more ominous findings.” The lymphovascular invasion placed portions of the tumor into a different category than borderline. Dr. Welch testified “it is not at all uncommon to have a tumor in which in one aspect you have a very benign epithelium and then you have a borderline proliferative atypical epithelium and then in another area a focus of invasion or many foci of invasion.” Michelle’s tumor was not just a borderline tumor because once there was an invasion, the tumor cells were expressing an ability to invade, and that was a very important biological parameter. “If there is a malignant tumor with a lot of invasion and some other worrisome features, the patient clearly goes to chemotherapy or *** some other form of therapy to try to stop this tumor from growing and metastasizing.” Dr. Welch believed Michelle’s tumor had “gotten into lymphatics and *** into the blood vessel, although not everyone would agree with the interpretation that what [he] consider [ed] blood vessel invasion is truly blood vessel invasion.” When a tumor is рredominantly borderline, but also includes malignant features, the latter controls the treatment and final outcome. The standard of care in this case required the pathologist to make the correct diagnosis, which included mentioning the fact that there was invasion into the stroma of the tumor. Dr. Welch believed Dr. Murad deviated from the standard of care by not seeing the areas of most concern and not reporting them.
Dr. Welch provided extensive testimony as to what he observed on the various slides created by Dr. Murad and noted, in particular, that one nodule on a slide represented a major invasive component of the tumor, which went beyond what anyone might call a microinvasion. Dr. Welch reviewed Dr. Murad’s final pathology report dated April 9, 1998, and concluded it deviated from the standard of care because it did not include any mention of stroma, lymphatics, or vascular invasion. Dr. Welch also believed the report deviated from the standard of care because it indicated there was no invasion found in any of the sections examined. Finally, he testified the standard of care required carcinoma, or adenocarcinoma, to appear in the final pathological diagnosis because there was clear-cut evidence of invasion. Dr. Welch would have assumed the tumor would ultimately behave as a carcinoma and not as a borderline tumor.
Prior to the testimony of Dr. Goldstein, defendants filed a motion in limine seeking to bar him from testifying as to the management, treatment and/or effectiveness of chemotherapy if it had been administered to Michelle after her surgery in April 1998. Defendants argued that Dr. Goldstein did not have the requisite expertise and qualifications to offer such testimony. After conducting a voir dire hearing, the trial court found Dr. Goldstein was not an expert in medical oncology and would not be allowed to testify as to what the course of treatment would have been for Michelle and hоw she might have done had she received treatment sooner.
Dr. Goldstein then testified that he is board certified in obstetrics and gynecology and specializes in gynecologic oncology at Brigham and Woman’s Hospital, where he primarily does surgery. He also works for the Dana-Farber Cancer Institute in Boston, where he does outpatient care. A large part of his testimony was about the FIGO staging system for cancer patients. He testified that all patients in a particular stage would be considered the same type, mostly for academic purposes, so if they were treated they should have similar outcomes. Dr. Goldstein described the following stages, in relevant part, as they relate to ovarian cancer patients: stage I would be a tumor localized to the ovaries; stage IA would be localized to one ovary; stage IB would involve both ovaries; stage IC would be one or both ovaries involved with some evidence of tumor cells in the abdominal cavity; and stage IV would be if there was evidence of the disease outside the abdominal cavity. When a pathologist concludes that a tumor is malignant, staging should be done which, depending upon the circumstances, entails washings, removing any tumors that appear on any structure, removing the omentum, taking scrapings, and sampling lymрh nodes. It is a judgment call on the surgeon’s part whether to stage a borderline tumor of the ovaries and depends upon various factors. Most such borderline tumors, however, are staged.
Dr. Goldstein testified that Michelle had a stage IA or IC tumor, most likely a IA tumor, on April 8, 1998. His opinion, which he held within a reasonable degree of medical certainty, was based upon the following facts: Dr. Weiss explored the abdomen very thoroughly when he removed the tumor and found no evidence of any disease; 18 months after the operation when Michelle began to have symptoms of her recurrent tumor and a CT scan was done, no evidence of any tumor in her abdomen was found; and fluid inside a mucinous tumor is very gelatinous, and if the fluid gets into the abdominal cavity, it can cause a condition called 1 ‘pseudomyxoma peritonei,” where you have a gelatin-like development in the abdominal cavity, and there was no evidence of such a condition in Michelle’s case. Based upon the FIGO statistics for ovarian cancer, a patient diagnosed with a stage IA tumor has about an 80% chance of survival, while a stage IC patient has a 70% to 75% survival rate, and a stage IV patient has less than a 10% survival rate. When Michelle was diagnosed with ovarian cancer in September 1999, it was behaving like a stage IV tumor bеcause it was outside of the abdominal cavity in the lungs and the bone.
At the completion of plaintiffs case-in-chief, defendants moved for a directed verdict because plaintiff had failed to meet her burden on the issue of proximate cause. The trial court took the issue under advisement and instructed defendants to begin their case-in-chief. After defendants presented the testimony of three pathologists, including Dr. Robert Young, the trial court granted defendants’ motion for a directed verdict. In doing so, the trial court concluded there was no opinion to a reasonable degree of medical certainty that the effectiveness of the treatment Michelle might have received after April 1998 was lessened. The trial court further concluded there was no evidence that Michelle’s stage IA cancer, if left untreated, would have progressed to a stage IV cancer within a certain amount of time. Finally, the trial court concluded there was no evidence which indicated what treatment Michelle would have been given which would have prevented her stage IA cancer from later progressing to stage IV cancer, which was the cause of her death in September 2000.
Plaintiff raises the following three issues for our consideration: (1) whether the trial court abused its discretion by barring Dr. Goldstein’s trial testimony concerning the potential efficacy of certain courses of cancer treatment if started earlier in this case; (2) whether the trial court erred by granting defendants’ motion for a directed verdict; and (3) whether the trial court abused its discretion by prohibiting plaintiff from cross-examining defendants’ pathology expert, Dr. Robert Young, about information he may have included in a pathology report if he had been Michelle’s pathologist.
We first consider plaintiff’s claim that the trial court abused its discretion by barring plaintiffs medical expert, Dr. Goldstein, from testifying as to the management, treatment, and/or effectiveness of аny chemotherapy that may have been part of Michelle’s treatment following her surgery in April 1998. Defendants assert that the trial court properly barred the testimony because Dr. Goldstein was not a medical oncologist and did not have the requisite experience with cancer treatment to support his opinions.
An expert witness is a person who, because of education, training, or experience, possesses specialized knowledge beyond the ordinary understanding of the jury. Hubbard v. Sherman Hospital,
In Gill, the trial court barred the plaintiffs expert, Dr. McAfee, a board-certified general surgeon, from testifying that the defendant, a radiologist, had deviated from the standard of care in reading various films that were taken during the plaintiffs hospitalization. Gill,
Similarly, in Silverstein v. Brander,
In Hubbard v. Sherman Hospital,
In Northern Trust Co. v. Upjohn Co.,
Turning to the case at hand, the record establishes that the following relevant evidence was presented during the voir dire hearing: Dr. Goldstein has been board certified in obstetrics and gynecology since 1967. He works as part of a group of six gynecologic oncologists at Brigham and Women’s Hospital and the Dana-Farber Cancer Institute in Boston. Dr. Goldstein also works with three medical oncologists with whom he collaborates during a weekly conference to discuss various issues surrоunding a patient’s status and cancer therapy. While he refers patients to a medical oncologist for purposes of managing the chemotherapy and making the decision as to whether to give chemotherapy, including any experimental drugs, he also monitors the patient’s response to the therapy. Dr. Goldstein testified that carboplatin and Taxol have been the standard first-treatment drugs for ovarian cancer for about 10 years. He further testified that he would question a medical oncologist if any alternative course was suggested for one of his patients, and the medical oncologist would have to explain why a differеnt agent was necessary. Dr. Goldstein testified that an alternative chemotherapy is only used about 5% of the time, such as when a patient has an unusually adverse reaction to the standard drugs, and the medical oncologist would propose the alternative course. However, in those cases where the standard drugs do not work or subsequent chemotherapies are used, Dr. Goldstein testified he is involved in the decision-making process as to what should be done. While he would not make the ultimate decision, he testified it would be a “joint decision” whether to use something experimental or a second line of therapy.
Following the voir dire hearing, thе trial court limited Dr. Gold-stein’s testimony on the basis that he was not qualified to give an opinion on what the course of treatment would have been for Michelle if her cancer had been staged in April 1998, or what the benefits and disadvantages to a course of therapy might have been. The trial court concluded that Dr. Goldstein was not sufficiently familiar with the decision-making process, and the methods medical oncologists use to select the course of therapy to administer, to allow his testimony. The trial court noted that there are cases when the standard therapy is not administered, and that there would be no way of knowing whether this was one of those cases, and defendants would lack the opportunity to cross-examine the doctor who determines the modality.
Like in Gill and Silverstein, we find the trial court abused its discretion by limiting Dr. Goldstein’s testimony. As a licensed doctor with extensive experience in the management and treatment of cancer patients, Dr. Goldstein was qualified to testify as an expert concerning the potential course and efficacy of treatment if Michelle’s cancer had been diagnosed sooner. Dr. Goldstein testified that he collaborates on a weekly basis with the hospital’s medical oncologists; is familiar with the standard course of treatment for ovarian cancer patients; monitors the reaction of his patients to cancer therapies; questions a medical oncologist if an unusual course of therapy is suggested for one of his patients; and would be a joint decision maker in deciding whether something experimental, or a second line of therapy, should be administered to a cancer patient. Unlike the medical witnesses in Hubbard and Northern Trust, Dr. Goldstein demonstrated extensive experience in the management and treatment of cancer patients in order to allow him to testify about Michelle’s potential treatment. Dr. Goldstein’s lack of board certification in medical оncology and his reliance upon medical oncologists in determining a patient’s ultimate treatment went to the weight of his opinion, not to its admissibility. See Gill,
Based upon our determination that the trial court abused its discretion by limiting Dr. Goldstein’s testimony, we must determine whether the error constitutes grounds for a new trial. Errors in the exclusion of evidence may warrant a new trial where the errors are serious and prejudicial. Israel v. National Canada Corp.,
“To succeed on a claim of medical malpractice, a plaintiff must demonstrate: (1) the standard of care applicable to the defendant’s actions; (2) the defendant’s deviation from the appropriate standard of care; and (3) the deviation from the standard of care proximately caused the plaintiffs injuries.” McDaniel v. Ong,
We agree with the trial court that the evidence presented by plaintiff to the jury was insufficient, as a matter of law, to show that Dr. Murad’s alleged deviation from the standard of care resulted in a decreased chance of survival due to a delay in starting Michelle’s treatment. Pedrick v. Peoria & Eastern R.R. Co.,
The record establishes, however, that Dr. Goldstein provided the following opinion contained in plaintiff’s Supreme Court Rule 213 (210 Ill. 2d R. 213) discovery disclosures:
“In summary, it is my opinion to a reasonable degree of medical certаinty that Dr. Murad’s failure to diagnose and report invasive mucinous cancer and lympho-vascular invasion in April, 1998, resulted in an 18+ month delay in providing chemotherapy and other diagnostic and potentially therapeutic treatment, substantially reduced Ms. Ayala’s chance of surviving her cancer, reduced her life expectancy, lessened the effectiveness of treatment once it was finally initiated, and resulted in substantial medical expenses, and pain and suffering in the year prior to decedent’s death.”
This opinion was consistent with Dr. Goldstein’s subsequent voir dire testimony elicited during the hearing on defendants’ motion in limine. At the hearing, Dr. Goldstein testified that the standard primary treatment for ovarian cancer for approximately the last 10 years was carboplatin and Taxol; the normal cycles for the administration of carboplatin and Taxol would initially be six treatments at three-week intervals; such treatment constituted the standard of care for gynecologic and medical oncologists who administer chemotherapy for ovarian cancer; and that Michelle’s cancer should have been diagnosed and she should have received such treatments of carboplatin and Taxol. Dr. Goldstein later testified at trial that he believed, within a reasonable degree of medicаl certainty, that Michelle most likely had a stage LA tumor in April 1998, which had a FIGO survival rate of 80%, and that by September 1999, her cancer had reached stage I\( which had a FIGO survival rate of less than 10%. Dr. Gold-stein, however, could only testify in general terms about the FIGO staging system as he was not allowed, based upon the trial court’s ruling on defendants’ motion in limine, to testify as to what the course of treatment for Michelle would have been, and how she might have done had she received treatment sooner, and to connect the FIGO statistics to Michelle’s case. For the foregoing reasons, we find plaintiff has met her burden that the trial court’s error in limiting Dr. Gold-stein’s testimony was prejudicial to her cause in that it precluded her from showing that Dr. Murad’s alleged deviation from the standard of care proximately caused her injuries. Accordingly, we remand for a new trial.
Finally, we turn to plaintiffs claim that the trial court abused its discretion by limiting her cross-examination of defense witness Dr. Robert Young, who testified after the trial court took defendants’ motion for a directed verdict under advisement. We will consider plaintiff’s claim for purposes of the admissibility of the challenged testimony on remand.
The record establishes that when the trial court ruled on various objections made to the evidence deposition of defendant’s pathology exрert, Dr. Young, it struck the following testimony provided during plaintiffs cross-examination of the witness:
“Q. You would have mentioned the cancer and stroma invasion written in the report to Michelle Ayala’s gynecological oncologist, wouldn’t you?
A. Yes.”
The trial court struck this testimony because it related to the personal practices of Dr. Young and did not concern a deviation from the applicable standard of care.
The admission of evidence falls within the discretion of the trial court and will not be reversed on review absent an abuse of discretion. Brax v. Kennedy,
“[O]ur supreme court [in Walski v. Tiesenga,72 Ill. 2d 249 (1978),] established that evidence that another doctor would have acted differently was not sufficient to show that the defendant doctor breached the standard of care. An expert’s statements that he would have acted differently are not even relevant ‘because differences in opinion are consistent with the conformity to the applicable standard.’ ” Glassman,259 Ill. App. 3d at 752 , quoting Mazzone v. Holmes,197 Ill. App. 3d 886 , 898 (1990).
As in Glassman and Mazzone, Dr. Young’s testimony here did not concern the applicable standard of care, but constituted evidence of what he would have done as Michelle’s pathologist. While we recognize the Fourth District Appellate Court disagreed with Mazzone in Gallina v. Watson,
Accordingly, the judgment of the circuit court of Cook County is reversed and remanded with direction for a new trial consistent with this opinion.
Reversed and remanded with directions.
HALL, J., concurs.
Notes
On September 11, 2003, plaintiff voluntarily dismissed her complaint against Dr. Regis Weiss and Chicago Gynecological Oncology, S.C. On January 13, 2005, plaintiffs complaint against Advocate Heath and Hospitals Corp. was dismissed following settlement with plaintiff.
Concurrence Opinion
specially concurring:
I agree the trial court committed reversible error when it limited Dr. Goldstein’s testimony, and I agree a new trial is warranted, but I do not agree with the majority’s position on Dr. Young’s stricken testimony concerning whether he would have mentioned cancer and stroma invasion to Michelle Ayala’s gynecological oncologist.
It is true that an expert cannot be asked about his own conduct in order to establish a defendant doctor’s deviation from or adherence to the standard of care. See Glassman v. St. Joseph Hospital,