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Medical Malpractice Motion 12 - plaintiff's motion for directed verdict

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Motion for Directed Verdict

Kominiarek Bresler Harvick & Gudmundson, LLC, Thomas M. Harvick, Lisa M. Green, 33 North Dearborn Street, Suite 1310, Chicago, Illinois 60602, (312) 322-1111, for defendants, Lake County Surgeons, P.C. and Aaron Siegel, M.D.

NOW COME Defendants, LAKE COUNTY SURGEONS, P.C. and AARON SIEGEL, MD., by their attorneys, KOMINIAREK BRESLER HARVICK & GUDMUNDSON, and at the close of Plaintiff's case in chief, move this Honorable Court for a Directed Verdict on their behalf. In support of their Motion, Defendants state as follows:

A directed finding or a directed verdict is appropriate where all the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern Railroad & Company, 37 Ill.2d 494 (1967). A judgment is appropriate if a plaintiff fails to prove an essential element of a negligence action, including proximate cause. Townsend v. University of Chicago Hospitals, 318 Ill.App.3d 406 (1st Dist. 2001).

In a medical malpractice action, a plaintiff must prove 1) the standard of care against which the medical professional's conduct must be measured; 2) the defendant's negligent failure to comply with that standard; and 3) that the defendant's negligence proximately caused the injuries for which the plaintiff seeks redress. Sunderman v. Agarwal, 322 III.App.3d 900 (1 st Dist 2001). See Borowski v. Von Solbrig, 60 Ill.2d 418 (1975). Additionally, proximate cause must be established by expert testimony to a reasonable degree of medical certainty. Susnis v. Radfar, 317 Ill.App.3d 817 (1st Dist.2000) ; Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill.App.3d 967 (1stDist. 1997) (emphasis added). Any causal connection between treatment or delay in treatment, and the claimed injury must not be contingent, speculative, or merely possible. See Aguilera, 293 Ill.App.3d 967, 976.

It is well established that an expert may not guess or state an opinion based on mere conjecture or guess. Dyback v. Weber, 114 Ill. 2d 232, 244, (1986) ; Glassman v. St. Joseph Hosp., 259 Ill. App. 3d 730, 752 (1st Dist. 1994). The opinion of the expert must be based on a reasonable degree of medical certainty. Ayala v. Murad, 367 Ill. App. 3d 591, 601 (1st Dist. 2006). When there is no factual support for an expert's opinion, the conclusions alone do not create a question of fact. Aguilera. 293 Ill.App.3d 967, 974. Additionally, the mere possibility of a causal connection is not enough to sustain the burden of proving proximate cause. Susnis, 317 Ill.App.3d 817, 827. Wiedenbeck v. Searle,385 Ill.App.3d.289 (1st Dist. 2008).

An expert opinion is also only as valid as the reasons for the opinion. Petraski v. Thedos, 382 Ill. App. 3d 22, 28 (1st Dist. 2008). In addition, it is well-settled that the proponent of expert testimony must lay a foundation sufficient to establish the reliability of the bases for the expert's opinion. Id.; Torres v. Midwest Dev. Co., 383 Ill. App. 3d 20, 28 (1st Dist. 2008). If the basis of an expert's opinion is grounded in guess or surmise, it is too speculative to be reliable. Petraski, 382 Ill. App. 3d at 27.

A plaintiff must establish that it is more probably true than not true that the defendant's negligence was a proximate cause of the injury. Johnson v. Loyola Univ. Med. Ctr., 384 Ill. App. 3d 115, 121 (1st Dist. 2008). Proximate cause in a medical malpractice case must be established by expert testimony to a reasonable degree of medical certainty, and the causal connection must not be contingent, speculative, or merely possible. Ayala, 367 Ill. App. 3d at 601.

In this cause, Plaintiff alleges that Dr. Siegel owed a duty to the plaintiff to inspect the bowel and that his failure to do resulted in injury to Ivory Lakes. The argument seems to be that had Dr. Siegel complied with the duty to inspect the bowel he would have seen a 3 mm hole in the duodenum. The hole would have been repaired and the plaintiff would not have been injured. In keeping with the case law recited above, the causal connection must not be contingent or speculative or merely possibly. There must be a factual basis for it.

Dr. William Watson, a general surgeon, has testified in this cause by video evidence deposition. He performed an exploratory laparotomy on Ivory Lakes on June 7, 2009. At surgery on that date, he found a 3 mm defect in the duodenum which he believes was caused by something that occurred at the initial surgery performed by Dr. Berger on June 1 Yet when asked whether he could say that a hole was or was not present the day before he could not answer. Evidence deposition transcript of Dr. Watson at p. 37.

Dr. Easter is expected to testify consistent with a discovery deposition given by him on July 23, 2013 that Dr. Siegel breached the standard of care by failing to run the bowel and identify an injury on June 1, 2009. Yet in that deposition at page 30, Dr. Easter allowed for the possibility that there was no hole in the duodenum at the time of the Dr. Siegel's involvement with the decedent. A hole may develop 12 to 24 to 36 hours later. Dep at p. 36. If there had been no hole, there was potentially nothing for Dr. Siegel to see, identify and repair during the surgery of June 1, 2009 because it had not yet occurred.

Plaintiff has thus failed to establish by expert testimony that Dr. Siegel's failure to run the bowel was causally related the injury because he has no witness who can do more than speculate as to when the injury was detectible by running the bowel. For this reason, she has failed to make a prima facie case of negligence and a verdict must be directed for the defense.


By: <<signature>>

Attorneys for Defendants, LAKE COUNTY SURGEONS, P.C. and AARON SIEGEL, M.D.

Thomas M. Harvick

Lisa M. Green


33 North Dearborn Street, Suite 1310

Chicago, Illinois 60602

(312) 322-1111

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