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                                    Appellate Court                          Date: 2019.04.16
                                                                             13:05:41 -05'00'




             Guerra v. Advanced Pain Centers S.C., 2018 IL App (1st) 171857



Appellate Court         JOHN GUERRA, as Special Administrator of the Estate of Jill
Caption                 Guerra, Deceased, Plaintiff-Appellant, v. ADVANCED PAIN
                        CENTERS S.C. and EUGENE G. LIPOV, M.D., Defendants-
                        Appellees.



District & No.          First District, Second Division
                        Docket No. 1-17-1857


Filed                   November 20, 2018



Decision Under          Appeal from the Circuit Court of Cook County, No. 13-L-8268; the
Review                  Hon. Elizabeth M. Budzinski, Judge, presiding.



Judgment                Affirmed.


Counsel on              David R. Nordwall, of Law Office of David Nordwall, LLC, and Peter
Appeal                  Tarpey and Eric Jones, of Tarpey, Jones & Schroeder, LLC, both of
                        Chicago, for appellant.

                        Julie A. Teuscher and Brian J. Hickey, of Cassiday Schade, LLP, of
                        Chicago, for appellees.



Panel                   JUSTICE HYMAN delivered the judgment of the court, with opinion.
                        Justice Walker concurred in the judgment and opinion.
                        Justice Pucinski dissented, with opinion.
                                                OPINION

¶1        After Jill Guerra died from an acetaminophen overdose, her husband, John Guerra, as the
     executor of her estate, brought an action for medical malpractice against Advanced Pain
     Centers S.C. and its medical director and Jill’s pain management doctor, Dr. Eugene G. Lipov.
     John claims that his wife became addicted to opioids during the 10 months Lipov treated her,
     and Lipov’s negligent failure to manage her pain medication proximately caused her death.
¶2        After trial, a jury returned a general verdict in John’s favor attributing 50% of the fault to
     Jill and awarding no damages. In response to a special interrogatory, the jury returned a special
     verdict finding that someone other than Dr. Lipov to be the sole proximate cause of Jill’s death.
¶3        John’s first posttrial motion resulted in the trial court setting aside the special verdict on the
     basis of error in giving the special interrogatory. According to the trial court, the instruction
     and interrogatory improperly implicated John as the sole proximate cause of Jill’s death. Lipov
     then moved for judgment notwithstanding the verdict (JNOV), arguing that John’s expert
     witness, Dr. Steven Richeimer, failed to establish proximate cause. While not an addiction
     specialist, Richeimer opined that Lipov should have sent Jill to see one. The trial court granted
     the motion stating, “plaintiff is missing the necessary expert testimony to establish proximate
     causation to link the alleged deviations from the standard of care to Jill’s death.” After the
     court granted Lipov’s JNOV, John filed a second posttrial motion challenging the court’s
     ruling on proximate cause and again asking for a new trial. This motion, too, was denied.
¶4        John requests a new trial arguing (i) the trial court committed prejudicial errors and (ii)
     there were irreconcilable verdicts. He also argues the trial court erred in granting Lipov’s
     JNOV and claims his expert witness established proximate cause. We affirm the JNOV
     because John failed to establish proximate cause. Thus, we do not need to address John’s other
     contentions.

¶5                                          BACKGROUND
¶6                                       Jill’s Medical History
¶7        Jill Guerra was in a car accident in 1982. In 2005, she began feeling pain related to a neck
     injury caused by the accident. Jill underwent neck surgery in 2007, and later that year was
     prescribed opioids by a pain management doctor. She had a second surgery in 2008 and in
     2009 started seeing a new pain management doctor. Later that year, Jill underwent a third
     surgery. A month after the surgery, Jill spent a few days in a psychiatric hospital. There,
     doctors diagnosed Jill with major depressive disorder and anxiety disorder. Jill began seeing a
     different pain management doctor in October 2009. As requested by her new doctor, Jill
     underwent a psychological evaluation to assess her risk for addiction. The psychologist who
     performed the evaluation found Jill was not at risk of abusing her medication.
¶8        Later, Jill’s pain management doctor asked her to go for another psychological evaluation.
     Jill refused. In July 2010, that same doctor discharged Jill from her care after discovering Jill
     received additional pain medication from her primary care physician. A month later, Jill’s
     primary care physician suggested she get a psychiatric consultation, which she declined to
     undergo.
¶9        Jill found another pain management doctor who saw her for a month before referring her to
     Dr. Lipov in September 2010. By the time Jill came under Lipov’s care, she had seen four pain

                                                    -2-
       management doctors, underwent three surgeries, and received four referrals to a mental health
       professional (although she availed herself to a mental health professional only once).
¶ 10        Lipov monitored and modified her pain medication, based on her complaints of pain.
       During the 10 months he treated her, Lipov prescribed Norco, Dilaudid, Vicoprofin, and
       Opana (opioids), and Klonopin and Xanax (anti-anxiety medications). Twice, during her
       treatment with Lipov, Jill called and complained that the pharmacy shorted her opioid
       prescriptions. Both times Jill received a new prescription to make up for the lost pills. Jill also
       increased her medication on her own, which came to light when she called Lipov’s office to
       refill prescriptions early.
¶ 11        Lipov also tried to treat the cause of Jill’s pain by performing “facet injections” into her
       spine. Lipov first performed an injection on September 30, 2010, which according to Jill
       provided some pain relief, so he performed additional injections on October 21, 2010, and
       November 21, 2010, which failed to provide relief. He also twice performed radiofrequency
       procedures, which involves applying heat to relieve nerve pain, but these too failed to provide
       sufficient pain relief. Eventually, Lipov referred Jill to an orthopedic spine surgeon, who
       performed spine surgery on Jill in May 2011.
¶ 12        On July 14, 2011, Jill told Lipov that she spent two days in the hospital and was unsure
       what had happened. At that appointment she informed Lipov that she wanted to start coming
       off medications. Lipov decreased the strength of Jill’s prescription. But, at her next
       appointment on July 21, he increased the strength of Jill’s opioid prescription. He testified that
       the new heightened prescription was meant to counter an increase in Jill’s pain, and that it is
       common for patients to experience increased pain one month after surgery.
¶ 13        Three days later, Jill suffered an acetaminophen overdose. The exact timing of that day’s
       events is unclear. Jill’s teenage daughters, Katie and Jackie, first realized Jill was unwell. Katie
       testified that when she came home that day, Jill was on the couch. Katie said “hi,” and Jill did
       not respond. Katie said it wasn’t unusual for Jill to be asleep on the couch. Jackie testified that
       Jill was often “out of it.” After Katie came home, Jackie and Katie both spoke to Jill and
       realized she was unresponsive. At some point, Katie came downstairs and found Jill on the
       floor. Katie then called John at work. The medical records state Katie called at 11 a.m., but
       Katie testified that she did not remember when she called John and disagrees with the time
       listed in the medical record. Jackie also testified that she called John after seeing Jill
       unresponsive on the couch. In her deposition she said she called John at 2:30 p.m. but, during
       trial, she couldn’t remember the exact time.
¶ 14        After finishing his eight-hour work shift, at about 3 or 3:30 p.m., John went home where he
       found Jill on the couch. (The medical records state someone had put Jill back on the couch.)
       John testified that when he got home he and the daughters placed Jill on the floor. The medical
       records state John called an ambulance at 7:58 p.m., which took Jill to the Northwest
       Community Hospital. She never regained consciousness and died two days later.
¶ 15        The medical examiner concluded that Jill died of an acetaminophen overdose and ruled her
       death a suicide. Jill’s history of mental illness and the high levels of acetaminophen in her
       system caused the medical examiner to believe the overdose was self-inflicted. Tylenol, as
       well as Norco, contain acetaminophen. An open question is whether Jill had opioids in her
       system at the time of her death because the drug toxicology screen (which would have
       indicated the presence of opioids) is not included in Jill’s medical records.


                                                    -3-
¶ 16                                           Procedural History
¶ 17        John Guerra, as the special administrator of Jill’s estate, filed a wrongful death action,
       based on medical malpractice, against Advanced Pain Centers S.C. and Dr. Lipov. Lipov filed
       an affirmative defense, claiming Jill was contributorily negligent. Later, Lipov moved to add a
       second affirmative defense claiming John was contributorily negligent, but the trial court
       denied the motion.
¶ 18        Before trial, both sides filed multiple motions in limine. John requested that the court bar
       Lipov from arguing that John was contributorily negligent in light of the denial of Lipov’s
       affirmative defense. The court denied John’s motion. The case went to trial in May 2016. John
       relied on the testimony of a single expert witness, Dr. Steven Richeimer, who specializes in
       pain management. Richeimer testified that he was not offering opinions as a psychiatrist. He
       testified that there were numerous “red flags” that Jill was addicted to opioids including
       running out of medication early, reporting a high level of pain scores, requesting early
       medication refills, taking more medication than is prescribed, requesting specific medications,
       seeking medication from other doctors, requesting stronger doses of medication, claiming
       pharmacy errors in filling a prescription, and unexplained emergency room visits. Richeimer
       testified that Lipov failed to meet the standard of care for a pain management doctor by not
       recognizing these signs of opioid addiction, and a prudent pain management doctor would
       have discussed addiction with Jill and referred her to an addictionologist. “He should seek to
       treat the addiction,” Richeimer stated. “Probably most pain doctors are not addictionologists.
       So he probably has to refer that patient to people who will help with that. And he should work
       with the patient to start getting them off their opioids,” either by sending them to a detox
       program or weaning them off of the prescription medication.
¶ 19        On cross-examination, Richeimer agreed that some aspects of Lipov’s treatment helped
       Jill, and that the injections, radio frequency treatments, and referral to an orthopedic surgeon
       were within the standard of care. He also agreed that Jill was likely addicted to opioids at least
       as early as 2009 and her treating physician should have weaned her off them then. He
       acknowledged that on at least five different occasions Lipov denied Jill’s over the phone
       request for prescription refills and required that she come into the office or schedule a visit.
¶ 20        During the trial, the jury received Illinois Pattern Jury Instructions, Civil, No. 12.04 (2011),
       which states that if any party other than the defendant is the “sole proximate cause” of Jill’s
       injuries, then the jury must find in Lipov’s favor. The court also granted Lipov’s request for a
       special interrogatory that read: “Was the sole proximate cause of Jill Guerra’s death the
       conduct of someone other than Dr. Eugene Lipov?”
¶ 21        The jury returned a general verdict in favor of John. This general verdict found Jill to be
       50% responsible for her own death and awarded no damages. The jury also answered “yes” to
       the special interrogatory.
¶ 22        John filed a motion to vacate the special verdict and for a new trial claiming (i) the trial
       court erred in allowing the sole proximate cause instruction, (ii) the trial court erred in allowing
       the special interrogatory, (iii) the trial court erred in allowing evidence of John and the family’s
       contributory negligence, and (iv) the verdicts were legally inconsistent. He argued the
       instruction and interrogatory were improperly used to target John and the family as the sole
       proximate cause of Jill’s death. Sole proximate cause should implicate a third party not
       involved in the litigation, and John noted that he and the children are parties to the litigation.
       John also claimed the trial court did not allow Lipov to use John’s contributory negligence as

                                                     -4-
       an affirmative defense, and so the court should have barred evidence and arguments on the
       issue. In addition, John claimed the verdicts were legally inconsistent because the general
       verdict was in John’s favor, but the special verdict found he failed to prove proximate cause.
       Due to the inconsistency, John argued the special interrogatory should be set aside and a new
       trial ordered.
¶ 23        The trial court found it erred in allowing the special interrogatory because the sole
       proximate cause instruction and interrogatory were improperly used to target a party. The trial
       court vacated the special verdict and entered judgment in favor of John (with no damages)
       based on the general verdict.
¶ 24        Lipov then moved for JNOV, claiming Richeimer was not an addiction specialist.
       Richeimer testified that Lipov should have noticed Jill’s addiction and sent her to a specialist
       for treatment, but John did not present an expert to testify about what treatments were feasible
       and how they may have helped Jill. The trial court granted JNOV in Lipov’s favor.
¶ 25        John filed another motion for a new trial, arguing (i) the JNOV was improperly granted
       because Richeimer listed concrete actions Lipov could have taken to treat Jill’s addiction and
       (ii) John is entitled to a new trial because (a) the trial court improperly allowed the sole
       proximate cause instruction, (b) the trial court improperly allowed the special interrogatory, (c)
       the trial court erred in allowing evidence of John and the family’s contributory negligence, (d)
       when a special verdict is vacated the trial court must order a new trial, and (e) the jury verdicts
       were legally inconsistent. The trial court denied John’s motion. John appeals the denial of both
       motions for a new trial, the order entering judgment based on the general verdict, and the order
       granting JNOV in favor of Lipov.
¶ 26        We affirm. John failed to prove proximate cause as Richeimer’s testimony leaves an
       evidence gap. Richeimer is not an addiction specialist and John needed to present testimony
       from an addiction expert to claim Lipov’s actions proximately caused Jill’s death. Because we
       affirm the JNOV, we do not need to address John’s arguments for a new trial.

¶ 27                                           ANALYSIS
¶ 28                             Judgment Notwithstanding the Verdict
¶ 29       John contends the trial court erred in granting a judgment notwithstanding the verdict on
       the issue of proximate cause. A deviation from the standard of care and whether that deviation
       was a proximate cause are normally questions for the jury. Aguilera v. Mount Sinai Hospital
       Medical Center, 293 Ill. App. 3d 967, 971 (1997). A court will only grant a judgment
       notwithstanding the verdict when the evidence, taken in the light most favorable to the
       nonmoving party, so overwhelmingly favors the movant that no contrary verdict can stand.
       Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406, 408 (2000). The standard
       for JNOV “ ‘is a high one.’ ” York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d
       147, 178 (2006) (quoting Razor v. Hyundai Motor America, 222 Ill. 2d 75, 106 (2006)).
       “[J]udgment n.o.v. is inappropriate if ‘reasonable minds might differ as to inferences or
       conclusions to be drawn from the facts presented.’ ” Id. at 178 (quoting Pasquale v. Speed
       Products Engineering, 166 Ill. 2d 337, 351 (1995)). We review a grant of JNOV de novo.
       Johnson v. Loyola University Medical Center, 384 Ill. App. 3d 115, 121 (2008).
¶ 30       To succeed on a medical malpractice claim, the plaintiff must prove (i) the standard of care
       a medical provider should have followed, (ii) the defendant failed to meet the standard of care,


                                                    -5-
       and (iii) the plaintiff’s injuries were proximately caused by the defendant’s failure to meet the
       standard of care. Id. (citing Northern Trust Co. v. Upjohn Co., 213 Ill. App. 3d 390, 406
       (1991)). To prove proximate cause in a medical malpractice case, the plaintiff must show that it
       is “more probably true than not true” that the doctor’s failure to adhere to the standard of care
       proximately caused injury. Borowski v. Von Solbrig, 60 Ill. 2d 418, 424 (1975). “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 v. Murad, 367 Ill. App. 3d 591, 601 (2006); see also Johnson v. Ingalls
       Memorial Hospital, 402 Ill. App. 3d 830, 846 (2010) (“The mere possibility of a causal
       connection is not sufficient to sustain the burden of proof of proximate causation.”). A plaintiff
       is not obligated to prove he or she would have gotten a “better result” if the doctor followed the
       proper standard of care. Instead the plaintiff must prove that the breach of the standard of care
       more likely than not caused the injury. Holton v. Memorial Hospital, 176 Ill. 2d 95, 106-07
       (1997).
¶ 31       The trial court found that a JNOV was warranted because John failed to offer expert
       testimony to establish proximate causation to link the alleged deviations from the standard of
       care to Jill’s death, which resulted from suicide by Tylenol overdose. For support, the trial
       court relied on Aguilera, 293 Ill. App. 3d 967. In Aguilera, the decedent went to the emergency
       room complaining of weakness on the left side of his body. Id. at 968. After he began suffering
       seizures, he was given a CT scan, which revealed a massive intracerebral hemorrhage. The
       plaintiff’s expert testified that assuming a prompt CT scan, he would have deferred to a
       neurosurgeon to decide whether surgical intervention was appropriate. A second expert
       testified that he would seriously consider, if not defer to the neurosurgeon’s opinion. But, the
       only two neurosurgeons to testify agreed with the treating neurologist that surgery would not
       have been appropriate, even with an earlier CT scan. Id. at 969-70.
¶ 32       The appellate court upheld the trial’s court’s JNOV, finding that the experts’ opinions
       failed to establish proximate cause. Id. at 975. “Without supporting testimony from a
       neurosurgeon, plaintiff’s experts’ testimony was insufficient to show that neurosurgery, much
       less effective neurosurgery, should have occurred absent defendants’ negligence.” Id. “The
       absence of expert testimony that, under the appropriate standard of care, an analysis of an
       earlier CT scan would have led to a surgical intervention or other treatment that may have
       contributed to the decedent’s recovery creates a gap in the evidence of proximate cause fatal to
       the plaintiff’s case.” Id.
¶ 33       Similarly, in Townsend, 318 Ill. App. 3d at 409-10, the plaintiff’s expert witnesses claimed
       the hospital negligently failed to seek an imaging study for the decedent. The hospital admitted
       the decedent and improperly treated her for a kidney infection. Id. at 408. The decedent died
       from septic shock caused by an undiagnosed kidney stone, which the medical staff would have
       found had they followed the standard of care and done an imaging study. Id. at 408, 410. Had
       they ordered the imaging study and found the kidney stone, a radiologist or a urologist would
       have decided the course of treatment. Id. at 411. The plaintiff failed to present testimony from
       either a radiologist or urologist. The court stated,
                “there is no evidence of what a urologist or interventional radiologist would have done
                to relieve the obstruction. No one said what the treatment would have been. No one said
                whether the right treatment was available or whether [decedent] was a candidate for it
                ***.

                                                   -6-
                    We conclude the jury in this case was left to speculate about proximate cause.” Id.
                at 414.
¶ 34       The trial court found that as in Aguilera, John did not provide testimony of an
       addictionologist or provide “any evidence that [Jill] would have gone to an addictionologist,
       what the addictionologist would have done following a referral, what the diagnosis of a
       addictionologist would have been, what medications he could have weaned her from, and how
       an addictionologist’s intervention would have prevented Jill Guerra’s suicide by a Tylenol
       overdose.” The trial court thus found that that John is missing the necessary expert testimony
       to establish proximate causation to link the alleged deviations from the standard of care to Jill’s
       death.
¶ 35       John claims, however, that Richeimer’s testimony provided the jury with sufficient
       evidence to find proximate cause. According to John, Richeimer gave specific, concrete steps
       Lipov should have taken to combat Jill’s addiction. John contends Richeimer testified that
       Lipov should have sent Jill to a detox program or weaned her off of her pills himself and that
       by failing to do one of those two things, Lipov proximately caused Jill’s death by overdose.
¶ 36       To support his claim John cites Johnson, 384 Ill. App. 3d 115. In Johnson, the estate of the
       decedent met the burden of proximate cause when an expert witness testified that the hospital’s
       negligent failure to monitor the decedent after a heart attack proximately caused his death. The
       plaintiff’s witness testified that, if the hospital staff had monitored the decedent after his first
       heart attack, they would have sooner noticed signs of his second heart attack. Earlier notice
       would precipitate an earlier intervention preventing oxygen deprivation and brain death (the
       cause of death several months after the second heart attack). Id. at 118. The trial court entered
       JNOV in defendants’ favor, citing Aguilera. The trial court found the plaintiff’s evidence
       lacked a witness with the requisite expertise about how the hospital would have treated the
       decedent if he was properly monitored. Id. at 123.
¶ 37       The appellate court reversed, finding the testimony adequately established that the hospital
       staff’s negligent failure to monitor proximately caused the decedent’s injury (brain death).
                “[The witness] testified that if Johnson had been adequately monitored, the staff could
                have intervened earlier and Johnson would not have suffered oxygen deprivation and
                brain death. Therefore, unlike Aguilera and Krivanec, here, there was not a ‘complete
                absence of expert testimony connecting’ [citation] defendants’ deviation from the
                standard of care with Johnson’s injuries. Because [the expert witness] was qualified to
                testify regarding the issue presented to the jury, Aguilera and Krivanec are
                distinguishable.” Id.
¶ 38       John claims Richeimer gave similar testimony by stating that Lipov’s failure to wean Jill
       off of her opioids or send her to a detox program was the proximate cause of her injury
       addiction, which eventually resulted in her death. But, John misstates Richeimer’s testimony.
       Richeimer testified that Lipov should have treated Jill’s addiction by sending her to an
       addictionologist and by weaning Jill off of her pills, either by sending her to a detox program
       or doing it himself. (During oral argument, John suggested that Richeimer testified Lipov
       should have weaned Jill off of her pills or referred her to an addictionologist, which is not
       supported by the record.) Despite John’s claim to the contrary, Richeimer testified that neither
       weaning Jill nor sending her to a detox program sufficed. He testified that Jill should have been
       referred to an addictionologist to determine the course of her addiction treatment. Richeimer
       testified that he was not offering opinions as a psychiatrist, and he admitted he does not treat

                                                    -7-
       addiction. Instead, he refers patients to addictionologists who determine the course of
       addiction treatment. But, no evidence was offered regarding what the diagnosis of an
       addictionologist would have been, what course of treatment would have been recommended,
       and whether that treatment could have been successful in weaning Jill from her opioid
       medications and how that treatment would have prevented Jill’s death from a Tylenol
       overdose.
¶ 39        Even if we accept John’s argument that Richeimer opined that Lipov should have weaned
       Jill off her medication or sent her to an addictionologist, Richeimer’s testimony alone does not
       establish proximate cause. Richeimer only established that there was a “mere possibility” that
       intervention by Lipov could have halted Jill’s addiction. Moreover, unlike in Johnson, where
       an expert witness testified that monitoring a patient could have led to earlier intervention and
       prevented his death, neither Richeimer (who, as noted, was not offering opinions in the area of
       psychiatry) nor any other witness testified that if she had been weaned from opioid
       medications, Jill, who had a history of depression, would not have committed suicide by
       overdosing on Tylenol, a non-opioid, over the counter medication.
¶ 40        Like Aguilera, there is no expert evidence connecting Lipov’s failure to identify Jill’s
       addiction to opioids and her suicide by Tylenol overdoes. No evidence indicates that Jill would
       have seen an addictionologist had Lipov referred her to one. No evidence indicates what, if
       anything, an addictionologist would have done to help Jill with her addiction. And no evidence
       indicates that Jill would have gone to a detox program or would have willingly reduced her
       pills if Lipov had intervened. Most significantly, no evidence shows that had Lipov taken the
       steps Richeimer recommended to treat her opioid addiction, it is more likely than not that Jill
       would not have died from a Tylenol overdose.
¶ 41        John having failed to prove proximate cause, we find the trial court properly granted Dr.
       Lipov’s motion for JNOV.
¶ 42        We need not address John’s contention that the trial court erred in denying his motion for a
       new trial. Both parties agree granting the JNOV dispenses with the need for a new trial.

¶ 43      Affirmed.

¶ 44       JUSTICE PUCINSKI, dissenting:
¶ 45       With respect, I dissent.
¶ 46       My colleagues have decided that there is an evidence gap that is fatal to the plaintiff’s case.
       They insist that an addictionologist was a necessary expert witness to show what treatment Jill
       would have had or maybe could have had or maybe might have had if the defendant doctor
       referred her to one. I do not agree.
¶ 47       Proximate cause was, in fact, established with Dr. Lipov responsible. Despite the lackluster
       case presented by the plaintiff’s attorneys, it was, ironically, the defense on cross examination
       of Dr. Richeimer who got to the heart of it: “This is a lady basically who’s used to, pardon the
       expression, popping pain pills. And I think that’s what she did here, and she got out of—out of
       control. She forgot what she took. She got fuzzy from all her meds. She just keeps on popping
       pills and gets to toxic levels.”
¶ 48       There is no evidence gap. We know everything we need to know about Jill’s treatment by
       Dr. Lipov. He blew it.

                                                    -8-
¶ 49       The defendant, Dr. Lipov, (1) failed to recognize, let alone diagnose, her addiction;
       (2) failed to take any steps at all to reduce her addiction, including, but not limited to, declining
       to further treat her after learning that she was fudging about the number of pills she had and
       was doctor and pharmacy shopping, reducing the strength of the opiates he was prescribing,
       and weaning her off of opiates altogether; (3) increased the strength of her medicines after Jill
       told him she wanted to cut back; and (4) failed to refer her to anyone: not a counselor, not a
       psychologist, not a psychiatrist, not her primary care physician, and also not an
       addictionologist.
¶ 50       All of those options were available to Dr. Lipov. Instead, he decided not only to continue to
       treat her but to increase the opiate level in the pills he was prescribing while also giving her
       various sedating medicines for extended time periods without supervision.
¶ 51       Dr. Lipov treated Jill with varying strengths of Dilaudid, Norco, and Vicoprofen,
       sometimes simultaneously and sometimes sequentially. Simply stated, Dilaudid is stronger
       than Norco, and Norco is stronger than Vicoprofen: that is, the amount of opioids in each is
       reduced as you go down the scale from Dilaudid to Vicoprofen. Dilaudid contains
       hydrocodone, which is five to seven times more potent than morphine. Norco contains
       hydrocodone and acetaminophen, commonly called Tylenol, at a ratio of 10 milligrams of
       hydrocodone to 325 milligrams of acetaminophen. Vicoprofen contains hydrocodone and
       ibuprofen, commonly known as Advil or Motrin. During the time she was taking any of these
       serious opiates, she was also being given prescriptions for benzodiazepines, medicines that
       slow the central nervous system, i.e., Xanax and Klonopin, and on top of that, large doses of
       acetaminophen in the Norco. No one knows what over-the-counter pills she took along with
       her prescriptions.
¶ 52       Jill died of acetaminophen intoxication. The toxicology screen for acetaminophen after her
       death indicated a level of at least 10 times the normal dosage of acetaminophen. Testimony at
       the trial placed the level at about 25 times the therapeutic dose. There is no toxicology report
       for the level of opioids in Jill at the time of her death. It is unclear from the record whether that
       opioid screen was done and got lost or mislaid, or whether none was done.
¶ 53       This is inexcusable. Dr. Lipov was treating Jill for pain. The treatment involved
       prescribing opiates. Instead of carefully monitoring her opiate use, Dr. Lipov prescribed doses
       of opiates for weeks at a time without supervision, checkups, or pill counts. He prescribed
       opiates that overlapped with earlier prescriptions. He cannot be said to have been carefully
       monitoring her use of opiates or her likelihood of addiction. He cannot be said to have been
       alert to the symptoms and behaviors of opiate abuse. Either he did or did not recognize the
       symptoms and behaviors of opiate abuse. If he did not recognize them, he should not be
       prescribing opiates to patients. If he did recognize the symptoms and behaviors of opiate abuse
       and ignored them, he should not be prescribing opiates to patients. It is uncontradicted that the
       opiates made her fuzzy. She forgot what she took. She overdosed on acetaminophen. She died
       of acetaminophen poisoning suicide. Dr. Lipov prescribed the opiates. He is responsible for
       her death.
¶ 54       At the time of her death Jill had in her possession a filled prescription for 240 Norco pills,
       which was filled three days earlier. That means that on July 21, Jill filled a prescription for 240
       10-milligram pills of hydrocodone and 240 32-milligram pills of acetaminophen. That equals
       78,000 milligrams of acetaminophen in just the prescription alone, and there is no telling what
       over-the-counter acetaminophen she was using alongside the prescription. The normal

                                                     -9-
       recommended therapeutic dose is 3000 milligram per day. See Tylenol Dosage for Adults,
       Tylenol, https://www.tylenol.com/safety-dosing/usage/dosage-for-adults (last visited Nov. 8,
       2018) [https://perma.cc/GM3C-U6PM]. Jill had 26 times the normal therapeutic dose available
       to her starting July 21. Dr. Lipov did not require her to return in three days, or even a week to
       renew a smaller prescription. Instead he gave a prescription for 78,000 milligrams of
       acetaminophen to a woman who had all the red flags of addiction, along with 2400 milligrams
       of hydrocodone, which she was supposed to take without close supervision. And, see below,
       she had overlapping prescriptions from July 7 for 112 Norcos that were supposed to last two
       weeks and a July 14 prescription for 56 Vicoprofens, which were supposed to last for seven
       days.
¶ 55       Testimony at the trial indicated that fatal liver failure from acetaminophen overdose is
       about 12-24 hours after ingestion with a peak about one to three or four days after ingestion;
       fatal respiratory failure from opioid overdose would be less than 2 hours after ingestion.
¶ 56       We know that Jill was a pill taker and that on the day she died she had a three day old filled
       prescription for 240 Norcos, and that her family testified that she was often “out of it.” A
       patient in pain and taking an opioid could easily take too many extra opioids and/or
       over-the-counter Tylenols. Plaintiff’s expert, Dr. Richeimer’s testimony on that was
       uncontroverted.
¶ 57       Dr. Richeimer testified that if a reasonably careful pain management doctor does timely
       detect the red flags of addiction, he has to sit down with the patient, talk to the patient about the
       fact that he believes that they have an illness, addiction, that makes them unsafe to be treated
       with opioids, and he should seek to treat the addiction. He continued that since most pain
       doctors are not addictionologists, Dr. Lipov probably should have referred that patient to
       people who will help with that. And, he should have worked with Jill to start getting her off
       opioids.
¶ 58       Dr. Richeimer further testified that he was not aware of Dr. Lipov ever making any attempt
       to refer Jill Guerra to either one of the two individuals in his practice that could have helped,
       his colleagues the psychologist and/or psychiatrist, or to anyone else in any kind of practice.
¶ 59       Dr. Richeimer also testified that in his opinion Dr. Lipov did not comply with the standard
       of care at all times while treating Jill from September 16, 2010, to July 21, 2011, and that Dr.
       Lipov’s deviation from the standard of care was the failure to recognize the addiction, failure
       to refer the patient for treatment of addiction, and, in fact, doing the opposite, that Dr. Lipov
       continued to provide and continued to escalate the doses. Dr. Richeimer continued that Dr.
       Lipov was “sort of fueling the flames of her pain problem by escalating the doses with chronic
       opioids *** in addition to that, I think if—if he had referred the patient for treatment for
       addiction and they had gotten off these medications, then I don’t think we’d be here today
       because I think she’d still be alive.”
¶ 60       The “if” in Dr. Richeimer’s testimony is no small thing. Addiction is a mental disease,
       which by itself cannot be seen, touched, removed, X-rayed, magnetic resonance imaged, or
       CT-scanned. It is not like cancer, or a kidney stone, or a broken leg, or even some cardiac
       problem. Identifying and treating addiction is in the best circumstance a 50-50 proposition:
       treatment will work or it will not, and the variables are complex and numerous. The well
       respected Mayo Clinic acknowledges that: “Although there’s no cure for drug addiction,
       treatment options *** can help you overcome an addiction and stay drug-free.” Drug


                                                    - 10 -
       Addiction, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/drug-addiction/
       diagnosis-treatment/drc-20365113 (last visited Nov. 8, 2018) [https://perma.cc/96YP-99G8].
¶ 61       The cases cited by the majority are all cases for diseases or conditions that could be
       identified and actually seen in some way, but were not, or were not identified on time, or for
       whose treatment there were different opinions and where an additional expert was necessary.
¶ 62       This case is different. Dr. Richeimer was very clear that in his opinion to a reasonable
       degree of medical certainty there were red flags of Jill’s actual addiction to pain pills,
       specifically Norcos, Dilaudids, and opioids in general. And he testified that “if” Dr. Lipov
       “had referred [Jill] for treatment for the addiction and [if] they had gotten off these medications
       *** she’d still be alive.” There can be no certainty that any referral to any specialist would
       have been successful in treating Jill’s addiction. She already had a history of failing to follow
       up with referrals; and no addictionologist can guarantee 100% success. It cannot be compared
       to a urologist saying: “Sure, if I had seen that kidney stone, I would have removed it.” Or a
       cardiac specialist saying: “Sure, if I had seen that blocked artery, I would have done something
       about it.” This doctor did not recognize the addiction, so he did not refer her to anyone.
¶ 63       It is not recognizing the addiction that is the foundational part of his treatment of Jill that
       cascaded into everything else.
¶ 64       Dr. Richeimer testified that on July 14, 2011, Dr. Lipov started to taper Jill off the opioids
       by switching from Norco to Vicoprofen, which was a 25% reduction in opioids, and the
       prescription was for one week only. However, one week later, on July 21, 2011, Dr. Lipov
       inexplicably gave Jill her old medicine, the Norco, the stronger pill, so from 7.5 milligrams of
       hydrocodone, Dr. Lipov went back to 10 milligrams of hydrocodone, and continued it
       day-to-day but this time he gave her a month’s worth, or 240 pills, in one prescription.
¶ 65       On Jill’s first visit to Dr. Lipov on September 16, 2010, she reported her pain was 4 or 5 out
       of 10 and he prescribed Norcos, 1 or 2 pills 4 times a day, or up to 8 pills a day or 150 Norcos
       total (8 pills a day divided into 150 Norcos equals an 18.75 day supply) and Klonopin.
       Klonopin is a brand name for clonazepam, a benzodiazepine or tranquilizer. Use of Klonopin
       can lead to serious side effects, including drowsiness, trouble with thinking, and suicidal
       thoughts. Its use needs to be closely monitored by a doctor. See Clonazepam (Oral Route),
       Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/clonazepam-oral-route/side-
       effects/drg-20072102 (last visited Nov. 8, 2018) [https://perma.cc/86RG-59Y3].
¶ 66       The fact that a patient with a 4 out of 10 pain level was prescribed Norco right from the
       start is troubling. Dr. Lipov had no history with Jill, he did not know how she would tolerate
       Norco and could not know if she would have had success with something less potent, for
       example, Vicoprophen, to start. And he had no idea how she would tolerate the Norco in
       combination with the Klonopin.
¶ 67       Then she saw him on September 30, 2010, 15 days later, and Dr. Lipov prescribed
       Dilaudid, a 4-milligram pill, 2 pills per dose, 3 times a day for 14 days or 84 Dilaudids total,
       while she still should have had some of the Norcos left. He did not ask her to turn over the
       Norcos.
¶ 68       On October 13, 2010, again two weeks later, Dr. Lipov renewed the prescription for
       Dilaudid for 30 days, along with more Klonopin.
¶ 69       On October 29, 2010, Jill’s chart notes: “Patient increased medications, running out early,”
       which according to Dr. Richeimer was a clear red flag.


                                                   - 11 -
¶ 70        In response, on November 4, 2010, less than 30 days after the October 13, 2010,
       prescription, Dr. Lipov refilled the prescription but increased the length of the dose of Dilaudid
       for the 4-milligram dose per pill, at 6 per day, but for 30 days, or 180 pills. He added MS
       Contin, which is a slow release form of morphine, 15 milligrams at three times a day, and he
       continued the Klonopin but increased the dose from two to three times a day. MS Contin is a
       brand name for morphine. See Morphine (Oral Route), Mayo Clinic, https://www.mayoclinic.
       org/drugs-supplements/morphine-oral-route/description/drg-20074216 (last visited Nov. 8,
       2018) [https://perma.cc/KNF9-YXPY]. So, on November 4, 2010, Jill had prescriptions for 24
       milligrams of hydrocodone plus 45 milligrams of morphine plus some amount of the
       Klonopin, a benzodiazepine, to take each day.
¶ 71        Then, on November 24, 2010, the pharmacy called with Jill’s request for more Klonopin
       and a 15-day supply was provided in that refill, while a part of a prescription for Klonopin
       should still have been available to her.
¶ 72        On December 6, 2010, there is some confusion in the record about who called whom, but
       Jill’s chart seems to indicate that by December 20, 2010, “[i]t came to light that she had
       increased her pain medications to address her pain issues” and someone consulted Dr. Lipov.
¶ 73        On December 20, 2010, John took Jill to the hospital for nausea, vomiting, and inability to
       eat, all of which were also red flags.
¶ 74        Two days later Jill followed up with an office visit on December 22, 2010, and Dr. Lipov
       prescribed more medications: Norco, 2 pills at 4 times a day with a 14-day prescription or 112
       pills, and he added Xanax, 1 pill at 3 times a day for 14 days, or 42 pills. Xanax is the brand
       name for alprazolam, which is a benzodiazepine. It is stronger than Klonopin. Its use can lead
       to depression, hallucinations, suicidal thoughts, and confusion. See Alprazolam (Oral Route),
       Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/alprazolam-oral-route/side-
       effects/drg-20061040 (last visited Nov. 8, 2018) [https://perma.cc/SM5L-GQRK]. That equals
       80 milligrams of hydrocodone and 3 Xanax every day.
¶ 75        On January 11, 2011, Jill called complaining about post surgery stiffness in her jaw and
       tongue. Dr Lipov’s office said she had to come in to get any more medication.
¶ 76        On January 17, 2011, Dr. Lipov prescribed Opana, which is another opioid, roughly 3
       times the strength of morphine. Opana is the brand name for oxymorphone. See Oxymorphone
       (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/oxymorphone-
       oral-route/description/drg-20071555 (last visited Nov. 8, 2018) [https://perma.cc/CM86-
       DFCB].
¶ 77        On January 18, 2011, Jill called again. She was having muscle spasms in her neck and jaw
       and wanted Flexeril. Dr. Lipov approved a prescription for Flexeril for 30 days. Flexeril is a
       brand name for cyclobenzaprine, a muscle relaxant, and its side effects may include confusion
       or depression. See Cyclobenzaprine (Oral Route), Mayo Clinic, https://mayoclinic.org/drugs-
       supplements/cyclobenzaprine-oral-route/description/drg-20063236 (last visited Nov. 8, 2018)
       [https://perma.cc/XW9Z-7LLX].
¶ 78        Jill called again 8 days later (roughly January 24) and said she was on Opana. She said it
       was too strong for her, she talked to Dr. Lipov and was given Norco again, 2 tablets 4 times a
       day for 7 days, or 56 pills.
¶ 79        On January 31, Jill went in for an office visit, reporting pain at 5 out of 10. Dr. Lipov
       prescribed Norco, 2 tablets at 4 times a day, or 240 pills for the month, and Klonopin, 3 times a


                                                   - 12 -
       day, with a 30-day supply, or 90 Klonopin pills, all in her possession at once and no short term
       oversight by Dr. Lipov.
¶ 80        Dr. Richeimer testified that he did not see any evidence that Dr. Lipov was attempting to
       wean or taper Jill off of these opioids. Nor did he see anything in the chart that would indicate
       that Dr. Lipov talked to Jill about the early refills, or any type of intervention or help.
¶ 81        On February 14, 2011, two weeks later, Jill went back for another office visit. Dr. Lipov
       prescribed a double sized Dilaudid, the 8-milligram pills, at 2 pills per dose, 3 times a day, or
       180 pills or 1440 milligrams of Dilaudid in a 14-day supply.
¶ 82        As of February 14, Jill should have had 120 Norcos left while he was prescribing those 180
       Dilaudids.
¶ 83        On February 28, the chart shows a phone call relating that Jill was given 4-milligram
       Dilaudids, not the 8-milligram pills he prescribed, and she wanted the rest of her medication.
       She was told to call the next day to talk to Dr. Lipov.
¶ 84        On March 1, 2011, a prescription was written for Dilaudid. There is some confusion in the
       record about whether the Dilaudid was for 4-milligram tablets with 2 tablets taken 3 times a
       day, or 8-milligram tablets with 2 tablets taken 3 times a day for 15 days. In addition, Dr. Lipov
       prescribed Klonopin, 0.5-milligram pills taken 3 times a day, or 90 pills.
¶ 85        On March 15, 2011, Jill called again. The chart indicates that Jill said she had a headache
       for the last five days while decreasing her Dilaudid dosage, that she would run out that day, and
       wanted 15 days of Norco to get her through to her next medical management visit on March 28.
       She said she finished her Dilaudid and wanted Norco. She was given a prescription for Norco,
       10-milligram pills with 2 pills taken 4 times a day for 15 days, or 120 tablets.
¶ 86        On April 11, the pharmacy called Dr. Lipov and indicated that Jill wanted a refill on her
       Flexeril and her Norco.
¶ 87        The prescriptions were refilled and called in to Osco, not Walgreens, for 14 days so that all
       the prescription medications would “sync and up” to refill on the same date. Dr. Lipov
       prescribed Norco, “10 mg/325, 2 [pills] 4x a day, for 14 days,” or 112 tablets, and a renewal for
       the Flexeril.
¶ 88        On June 6, 2011, Jill called and said she was out of medicine because she was “shorted
       some Norco” at her last refill. She thought she was shorted about 25 or 30 pills and left a
       Walgreen’s number for the doctor to call in a prescription. Dr. Lipov did approve a new
       prescription for Norco, 2 pills 4 times a day, which was called in to the pharmacy for Jill.
¶ 89        Two days later, on June 8, 2011, Jill had an office visit with Dr. Lipov. She was reporting
       pain 10 out of 10, postoperative. Dr. Lipov prescribed Klonopin, which is the benzodiazepine;
       Flexeril, the muscle relaxant; and Dilaudid, 8 milligrams, i.e., the double-sized one, with 2 pills
       taken 4 times a day for 14 days.
¶ 90        On July 7, 2011, Jill’s chart shows a phone call from the pharmacy relating that Jill “has an
       appointment for July 21 and has had an increase in breakthrough pain and is out of her Norco.”
       Dr. Lipov authorized calling in a 14-day prescription for Norco, “10 mg/325” (that is, 10
       milligrams of hydrocodone and 325 milligrams of acetaminophen in each pill), with 2 pills
       taken 4 times a day for 14 days, or 112 pills.
¶ 91        On July 14, 2011, seven days later, Jill again had an office visit with Dr. Lipov and
       reported her pain level was 6 out of 10. At that visit, she told the doctor that she wanted to start
       coming off her medications.

                                                    - 13 -
¶ 92       In response, Dr. Lipov prescribed Vicoprofen, which again is similar to Norco, with the
       same core ingredient of hydrocodone, but instead of 10 milligrams, it is 7.5 milligrams or 25%
       smaller. The prescription was for 2 pills 4 times a day and was limited to a 7-day supply, or 56
       pills. However, she should have had some of the Norco left from her July 7 appointment so
       there was a potential overlap during this period. Dr. Lipov also prescribed Xanax, although
       there are two prescriptions for Xanax, one is for 7 days and one is for 14 days; the record is not
       clear about which one Jill had filled at the pharmacy.
¶ 93       Seven days later, on July 21, 2011, Jill had another office visit and reported her pain at 5
       out of 10, which is a reduction in pain from the 6 out of 10 from the office visit one week
       earlier. In response to this reduction in pain, Dr. Lipov prescribed the more serious Norco
       instead of Vicoprofen, that is, 10-milligram tablets of Norcos, with 2 tablets taken 4 times a
       day (240 pills), while she still should have had 7 days worth of Vicoprofen and some Xanax on
       hand.
¶ 94       There is nothing in this record that indicates that Dr. Lipov ever asked Jill to return her
       unused prescription medications to him, or at least bring them in to be counted and checked;
       nothing to indicate he ever discussed the possibility of addiction with her or her treatment
       options. She seems pretty much to have been giving the directions to a doctor who appears
       only too willing to write the prescriptions.
¶ 95       When you do the math, she just had too many pills without close supervision. No wonder
       she was “fuzzy.” “She was out of control and forgot what she took.” Proximate cause: Dr.
       Lipov failing to recognize her addiction, overprescribing, undermonitoring.
¶ 96       But there is still another reason I dissent. The judge’s confusing instructions to the jury
       resulted in verdicts that were not only inconsistent but totally irreconcilable. If Dr. Lipov was
       not the sole proximate cause of her death, then it stands to reason someone else was also
       responsible. Yet the jury found at the same time that Jill was 50% responsible, leaving the
       other 50% unattributed.
¶ 97       When the judge decided to give the sole proximate cause instruction, over plaintiff’s
       objection, the jury was left with the very clear statement from the judge that Dr. Lipov could
       only be held accountable if his actions were the only ones that mattered. Then the jury heard
       evidence that John’s delay in seeking emergency attention for Jill compounded the problem. In
       the face of the jury instruction and the evidence, the jury found for the plaintiff, John Guerra
       and zero damages and that Jill Guerra was 50% responsible for her death and the sole
       proximate cause of Jill Guerra’s death was conduct of someone other than Dr. Eugene Lipov.
¶ 98       The judge acknowledged that she should not have given the sole proximate cause
       instruction, but not until after the jury returned with the inconsistent verdicts. This was error
       because the judge had a duty to recall the jury immediately and give the proper instruction. See
       Krklus v. Stanley, 359 Ill. App. 3d 471, 493-94 (2005).
¶ 99       Jury confusion about its instructions is reason enough to remand for a new trial. Compound
       that with the conflicting jury verdicts and the fact that Dr. Richeimer, with very little help from
       the plaintiff’s attorneys, demonstrated proximate cause, I cannot agree with my colleagues in
       this matter.




                                                   - 14 -
