                                               FIRST DIVISION
                                               DECEMBER 04, 2006




No. 1-04-1243


HAROLD MANSMITH, Individually, and as     )    Appeal from the
Special Administrator of the Estate       )    Circuit Court of
of Delphine Mansmith, Deceased,           )    Cook County.
                                          )
          Plaintiff-Appellee,             )
                                          )
     v.                                   )    No.   99 L 13912
                                          )
                                          )
ANJUM HAMEEDUDDIN,                        )    The Honorable
                                          )    John Grogan,
          Defendant-Appellant.            )    Judge Presiding.


     PRESIDING JUSTICE GARCIA delivered the opinion of the court.

     On January 14, 1998, Delphine Mansmith died of a brain stem

abscess caused by an acute staph infection that developed after

she received an epidural steroid injection for back pain.    Her

husband, the plaintiff Harold Mansmith, sued the defendant, Anjum

Hameeduddin, M.D., and R. Lawrence Ferguson, M.D. for medical

malpractice.    The plaintiff and Dr. Ferguson reached a settlement

agreement before the jury reached its verdict.   A jury found for

the plaintiff and awarded damages in the amount of $1,198,734.94.

After a setoff in the amount paid by Dr. Ferguson of $750,000,
1-04-1243


judgment was entered against Dr. Hameeduddin in the amount of

$448,734.94.

     On appeal, Dr. Hameeduddin argues that the trial court erred

when it denied her pretrial motion for summary judgment, her

motions for a directed verdict at the close of the plaintiff's

case in chief and at the close of all of the evidence, and her

posttrial motion for judgment notwithstanding the verdict because

the plaintiff did not prove she deviated from the standard of

care and did not and could not prove that she was the proximate

cause of Mrs. Mansmith's pain and suffering and ultimate death

under both survival and wrongful death causes of action.   She

also contends that the trial court erred when it (1) refused to

instruct the jury that Dr. Ferguson reached a settlement

agreement with the plaintiff and (2) taxed the costs of Dr.

Ferguson's videotaped evidence deposition to her.   For the

reasons that follow, we affirm in part and vacate in part the

judgment of the trial court.

                           BACKGROUND

     Dr. Hameeduddin was Mrs. Mansmith's primary care physician.

Mrs. Mansmith was an insulin-dependent diabetic and obese.    In

February 1996, Mrs. Mansmith first complained of back pain.    Dr.

Hameeduddin prescribed conservative treatment, which consisted of

back exercises, injections of DepoMedrol for pain, and physical

                                2
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therapy.    By June 1996, Mrs. Mansmith's pain returned, and she

experienced numbness in her left leg and had difficulty walking.

Dr. Hameeduddin ordered an MRI scan for Mrs. Mansmith.    The MRI

report dated June 28, 1996, stated that Mrs. Mansmith had a small

focal herniation at the L5-S1 vertebra, a large left lateral

bulge at the L4-L5 vertebrae, and a mild bulge at L1-L2.

     Dr. Hameeduddin referred Mrs. Mansmith to Dr. R. Lawrence

Ferguson, a neurosurgeon.    In August 1996, after examining Mrs.

Mansmith, Dr. Ferguson diagnosed her with spinal stenosis1 and a

bulging disc at the L4-L5 vertebrae.    Dr. Ferguson recommended

surgery.    Specifically, he recommended that Mrs. Mansmith undergo

a decompressive laminectomy2 to remove the bulging disc at the

L4-L5 area of her spine.    While the surgery would not necessarily

alleviate Mrs. Mansmith's back pain, it would help relieve the

numbness in her leg.    Prior to surgery, Dr. Hameeduddin prepared



     1
         Spinal stenosis is a condition that causes bone deformity,

which results in a narrowing of the spaces in the spine.    This

condition can pinch nerves extending from each vertebra, or pinch

the spinal cord, causing pain.
     2
         A laminectomy is a surgical procedure in which a surgeon

removes part of the vertebra, creating more room for the spinal

cord or the nerves.

                                  3
1-04-1243


Mrs. Mansmith's preoperative history, which detailed she had

spinal stenosis at the L4-L5 area.

     On August 12, 1996, Dr. Ferguson performed surgery on Mrs.

Mansmith.    Instead of operating at the L4-L5 level, he performed

the laminectomy at the L1-L3 level.    In essence, Dr. Ferguson

left untreated the stenosis and bulging disc at the L4-L5 level.

In his postoperative report, which he sent to Dr. Hameeduddin,

Dr. Ferguson stated that he performed the laminectomy at the L4-

L5 level.    Following surgery, Mrs. Mansmith was treated by both

Drs. Hameeduddin and Ferguson for a postsurgical wound infection.

By December 1996, the infection had healed.

     In April 1997, Mrs. Mansmith again complained of lower back

pain and pain radiating down her left leg.    Once again, Dr.

Hameeduddin prescribed physical therapy.    Although her pain

subsided for a time, by August 1997, Mrs. Mansmith was in

excruciating pain with numbness in her lower extremities.

Because she was not responding to conservative treatment, Dr.

Hameeduddin ordered a second MRI.     The MRI report received by Dr.

Hameeduddin showed that Mrs. Mansmith had surgery at the L1-L3

vertebrae.   It also showed that the presurgery pathology, the

spinal stenosis and bulging disc at the L4-L5 vertebrae, remained

unchanged.   Dr. Hameeduddin recognized the inconsistencies

between Dr. Ferguson's postoperative report and the second MRI,

                                  4
1-04-1243


but she did not inform Dr. Ferguson or Mrs. Mansmith about those

inconsistencies.    Dr. Hameeduddin explained:

                 "At that point, I was not aware of what

            had exactly happened.    I'm not a surgeon; I'm

            not a radiologist.    I looked at the report

            and I - - I reviewed the operative report

            again and it was very confusing because the

            operative report did say that the patient was

            operated on L5, S1."

     Mrs. Mansmith indicated that she did not want to go back to

Dr. Ferguson and the Mansmiths requested a referral for a second

opinion; Dr. Hameeduddin referred Mrs. Mansmith to Dr. George

Miz, an orthopedic surgeon.      In the course of her referral of

Mrs. Mansmith to Dr. Miz, Dr. Hameeduddin provided only the

second MRI scan report and film; Dr. Hameeduddin did not forward

to Dr. Miz the report of the first MRI scan (presurgery) showing

stenosis at the L4-L5 level; nor did Dr. Hameeduddin forward Dr.

Ferguson's postoperative report in which he wrongly stated that

he performed the laminectomy at the L4-L5 level.

     Based on his review of the second MRI report, Dr. Miz

recommended that Mrs. Mansmith lose weight and that she receive

an epidural steroid injection, so long as she did not have an

infection in her spine.    He did not recommend surgery because

                                    5
1-04-1243


Mrs. Mansmith had undergone a laminectomy at L1-L3 by Dr.

Ferguson the previous year and he wanted to attempt conservative

treatment first.   If, however, the epidural did not relieve Mrs.

Mansmith's pain, Dr. Miz would have considered surgery.

     In correspondence dated August 28, 1997, to Dr, Hameeduddin,

Dr. Miz stated, "Her lumbar MRI scan we reviewed and shows

evidence of previous decompression from L1 to L3. *** At L4-L5,

she has significant residual central spinal canal stenosis."    In

correspondence dated October 7, 1997, to Dr. Hameeduddin, Dr.

Rene Santos, an infectious disease specialist who examined Mrs.

Mansmith for infections before the epidural steroid injection was

administered, stated, "She underwent a lumbar laminectomy (L1-L3)

by Dr. Ferguson last year for diskitis and spinal stenosis."

     On December 23, 1997, Dr. Holly Carobene, an

anesthesiologist and pain management specialist, administered the

epidural steroid injection.   In early January, Mrs. Mansmith

complained of severe headache and back pain.   On January 14,

1998, Mrs. Mansmith died from an acute staph infection.   The

epidural injection introduced bacteria into Mrs. Mansmith's

spinal canal, which, after it reached her brain, caused a brain

stem abscess that killed her.   The initial autopsy indicated only

that Mrs. Mansmith died as a result of a brain stem abscess.    An

exhumation performed in April 2002 showed that the brain stem

                                 6
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abscess was caused by bacteria introduced during the epidural

steroid injection.

     In December 1999, the plaintiff sued Dr. Hameeduddin for

medical malpractice pursuant to the Survival Act (755 ILCS 5/27-6

(West 1998)), and wrongful death pursuant to the Wrongful Death

Act (740 ILCS 180/0.01 et seq. (West 1998)).3     In his third

amended complaint, which was based on the autopsy, the plaintiff

alleged that Dr. Hameeduddin breached her duty of care in that

she did not tell Mrs. Mansmith that she had a vertebral bone

infection.

     In June 2003, Dr. Hameeduddin filed a motion for summary

judgment, arguing that no evidence in the record existed to

support the claims that (1) any of her acts or omissions were the

proximate cause of Mrs. Mansmith's death or (2) that her failure

to report impacted Mrs. Mansmith's subsequent treatment.      Later

that month, the plaintiff filed a motion for leave to amend his

third amended complaint to correspond to the exhumation report,



     3
         The plaintiff also sued Drs. Ferguson, Santos, and

Gilbert.    Drs. Santos and Gilbert were voluntarily dismissed

before the plaintiff filed his fourth amended complaint.      Dr.

Ferguson reached a settlement agreement with the plaintiff while

the jury was deliberating.

                                  7
1-04-1243


which the trial court granted.   In the fourth amended complaint,

the plaintiff specifically alleged: (1) Dr. Hameeduddin did not

inform Mrs. Mansmith or Dr. Ferguson, or the other physicians,

that Dr. Ferguson had intended to, but did not, operate on the

L4-L5 vertebrae and (2) had Mrs. Mansmith been informed of the

mistake, she would have gone to the University of Chicago medical

centers for the surgery and would not have agreed to an epidural

steroid injection.   On July 31, 2003, the trial court denied Dr.

Hameeduddin's motion for summary judgment, treating the motion as

if it related to the fourth amended complaint.

     At trial, Dr. Larry Lustgarten, plaintiff's retained

neurosurgeon, opined that if Dr. Ferguson had performed Mrs.

Mansmith's surgery at the L4-L5 vertebrae, Mrs. Mansmith would

not have needed the epidural steroid injection that caused her

death.   However, he testified that in Mrs. Mansmith's case, an

epidural steroid injection was appropriate and that its

administration was within the standard of care.   He opined that

it was appropriate for a family practitioner, like Dr.

Hameeduddin, to defer to a specialist about orthopedic and

neurological issues.   He also testified that a person could get

an infection from an epidural injection even with the best care.

     Dr. Finely Brown, plaintiff's retained family practice

expert, opined that Dr. Hameeduddin violated the standard of care

                                 8
1-04-1243


by not telling Mrs. Mansmith that Dr. Ferguson operated on the

wrong vertebrae, and by not coordinating her care with him and

letting Dr. Ferguson know that he operated on the wrong level.

Dr. Brown explained that when a primary care practitioner

discovers an inconsistency between what a surgeon says he did and

what that surgeon actually did, the practitioner must do two

things: (1) ask the surgeon to resolve the discrepancy, and (2)

inform his patient of the discrepancy.       Because Mrs. Mansmith did

not know that Dr. Ferguson operated on the wrong level, Dr. Brown

opined that she could not seek appropriate medical treatment and

was exposed to an unreasonable risk associated with receiving the

epidural steroid injection.   In Dr. Brown's opinion, Dr.

Hameeduddin's failure to inform Mrs. Mansmith of the discrepancy

between what Dr. Ferguson said he did and what he actually did,

proximately caused her pain and suffering, and her death.

     Dr. Ferguson's videotaped evidence deposition testimony was

played for the jury.   He testified that he operated on a level

different from what he intended.       Although Mrs. Mansmith's

pathology did not change, she did have some improvement in her

symptoms following the surgery.    Dr. Ferguson testified that he

did not agree with the use of the epidural steroid injection

because Mrs. Mansmith had a compressive lesion, she was diabetic,

and she had a previous infection in the area of the first

                                   9
1-04-1243


surgery.    If Mrs. Mansmith had returned to his care, he would

have suggested that she have further surgery on the L4-L5 level.

He opined that surgery was better for Mrs. Mansmith because the

surgery would have decompressed her nerve roots, which caused her

pain and numbness.    Although he recognized that the rate of

infection for surgery and epidural steroid injections was

approximately the same, he explained that the infections were

different.    An infection resulting from a surgery would be

superficial, while an infection from an injection would be deep.

     Dr. Charles Fager, an expert in neurosurgery retained by Dr.

Ferguson, testified that in his opinion, the epidural steroid

injection should never have been given.    He explained that he

never has had faith in such injection for any condition, he never

would have considered giving it, and giving it was a clear

deviation from the standard of care.

     Dr. Hameeduddin opined that she complied with the standard

of care in treating Mrs. Mansmith.    As a family practitioner, she

referred Mrs. Mansmith to specialists for all of her complaints.

She admitted that if she became aware that a specialist had

improperly or negligently treated her patient, she would have a

duty to tell the patient.    When asked what her duty, as a family

practitioner, was when she received the second MRI report, she

stated: "To render her the proper care and send her to the

                                 10
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appropriate surgeon to have it reviewed to find out what was

still causing her pain."   Dr. Hameeduddin also admitted that she

knew there was an inconsistency between the postoperative report

and the second MRI, but that she did not tell Mrs. Mansmith or

Dr. Ferguson about the inconsistencies.     She opined that the

treatment that she provided Mrs. Mansmith did not cause her

injury or death.   She testified that in her opinion she did not

deviate from the standard of care and nothing she did contributed

to Mrs. Mansmith's pain or contributed to her need for the

epidural steroid injection that killed her.

     Dr. Steven Eisenstein, a family practitioner, testified as

an expert witness for Dr. Hameeduddin.     Dr. Eisenstein testified

that for complaints of back pain, the family practitioner must

assess the problem and decide on treatment.     Because back pain is

a common problem, family practitioners generally manage the pain

through outpatient or conservative treatment and make referrals

to specialists if the problem persists.     Dr. Eisenstein opined

that Dr. Hameeduddin complied with the standard of care in

treating Mrs. Mansmith's back pain.     He also testified that

following Mrs. Mansmith's surgery, it was appropriate for Dr.

Hameeduddin to prescribe conservative treatment and that her

postoperative care for Mrs. Mansmith's back pain was appropriate

and within the standard of care.     When asked what Dr.

                                11
1-04-1243


Hameeduddin's duty to Mrs. Mansmith was after receiving the

second MRI report, Dr. Eisenstein testified that "[s]he was

required to inform the patient that the MRI revealed

abnormalities and that she felt these were significant enough

that surgical consultation was necessary."   Dr. Eisenstein

testified that the standard of care did not require Dr.

Hameeduddin to discuss the inconsistencies between the MRIs with

Dr. Ferguson "[b]ecause the MRI was ordered with the specific

idea that this patient had pain and we were trying to get her

better."    Dr. Eisenstein opined that nothing Dr. Hameeduddin did

contributed to Mrs. Mansmith's death.

     Following the plaintiff's case-in-chief and again at the

close of all of the evidence, Dr. Hameeduddin moved for a

directed verdict.   She argued that there was no evidence she

deviated from the standard of care or that her actions or

omissions were a proximate cause of Mrs. Mansmith's death because

there was no evidence that if Mrs. Mansmith had known about the

inconsistencies, she would have done anything differently.    The

trial court denied the motions.

     After the jury was instructed and had begun its

deliberations, Dr. Ferguson and the plaintiff reached a

settlement agreement.   Dr. Hameeduddin asked the court to give

the jury Illinois Pattern Jury Instructions, Civil, No. 2.03,

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(2000) (hereinafter IPI Civil (2000) No. 2.03), which stated: "R.

Lawrence Ferguson, M.D. is no longer a party to this case.      You

should not speculate as to the reason nor may the remaining

parties comment on why R. Lawrence Ferguson, M.D. is no longer a

party."    The plaintiff argued that the instruction was only

appropriate where the parties made comments during closing

arguments about the fact that the party that settled is no longer

present.    The trial court refused to issue the instruction, in

part, because "the jury had been deliberating for a substantial

period of time, and the court did not want to put the emphasis on

the case against Dr. Hameeduddin at the time even though Dr.

Hameeduddin's attorneys tendered."    The trial court did instruct

the jury that each defendant was entitled to a fair consideration

of his or her own defense, and each defendant's case was to be

decided as if it were a separate lawsuit.    Also, the trial court

instructed the jury to answer a special interrogatory which asked

whether the epidural steroid injection performed by Dr. Carobene

was the sole proximate cause of the death of Mrs. Mansmith.

     The jury returned a verdict in favor of the plaintiff and

against Dr. Hameeduddin and Dr. Ferguson in the amount of

$1,198,734.94.    The amount of the verdict was reduced by the

amount of Dr. Ferguson's negotiated settlement, $750,000.    Dr.

Hameeduddin filed a posttrial motion for judgment notwithstanding

                                 13
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the verdict or, in the alternative, a new trial.      The trial court

denied the motion, explaining, "It would appear that the failure

to so inform either the plaintiff or Dr. Ferguson depriving [Mrs.

Mansmith] of the ability to be informed as to [the] status of her

back condition was a question of fact for the jury to determine.

They determined."

     In April 2004, the trial court granted the plaintiff's

motion for the assessment of costs.       Specifically, the plaintiff

sought to recover the cost associated with Dr. Ferguson's

videotaped evidence deposition.    The court awarded the plaintiff

$1,009.55 in costs against Dr. Hameeduddin for the deposition.

On April 27, 2004, Dr. Hameeduddin filed her timely notice of

appeal.

                               ANALYSIS

     On appeal, Dr. Hameeduddin argues that she did not deviate

from the standard of care in treating Mrs. Mansmith and, in any

event, nothing she did was the proximate cause of Mrs. Mansmith's

pain and suffering and ultimate death.      She therefore contends

that the trial court erred when it denied her motion for summary

judgment, motions for directed verdict, and motion for judgment

notwithstanding the verdict.    She also argues that the trial

court erred in refusing to give IPI Civil (2000) No. 2.03 and

assessing to her the costs of Dr. Ferguson's videotaped evidence

                                  14
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deposition.

                       A.   Summary Judgment

      The denial of Dr. Hameeduddin's motion for summary judgment

is not subject to review on appeal.   Where the issue in the

motion is decided at trial, any error in the denial merges into

the judgment.   Nilsson v. NBD Bank of Illinois, 313 Ill. App. 3d

751, 767, 731 N.E.2d 774 (1999).

 B.   Motions for Directed Verdict and Motion for Judgment n.o.v.

      Following the plaintiff's presentation of evidence and again

at the close of all of the evidence, Dr. Hameeduddin moved for a

directed verdict, arguing that evidence was lacking that she

deviated from the standard of care or that her actions or

omissions were a proximate cause of Mrs. Mansmith's injury and

death.   The trial court denied the motions.   In this appeal, Dr.

Hameeduddin argues that the plaintiff failed to establish that

the treatment she provided Mrs. Mansmith deviated from the

standard of care and that the plaintiff failed to establish

causation because Dr. Brown could only speculate as to what

actions Mrs. Mansmith would have taken had she been informed that

Dr. Ferguson operated on the wrong vertebrae.

      "As in other negligence cases the question of whether the

doctor deviated from the standard of care and whether his conduct

was a proximate cause of the plaintiff's injury are questions of

                                 15
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fact for the jury.   Under the established Pedrick criteria,

judgment should not here be entered for the defendant[] unless

all of the evidence viewed in the aspect most favorable to the

plaintiff so overwhelmingly favors the defendant[] that no

contrary verdict based on the evidence could ever stand."

Borowski v. Von Solbrig, 60 Ill. 2d 418, 423, 328 N.E.2d 301

(1975), citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d

494, 510, 229 N.E.2d 504 (1967).

     A directed verdict or a judgment n.o.v. should not be

granted if "'"reasonable minds might differ as to inferences or

conclusions to be drawn from the facts presented"'. [Citation.]

'In making this assessment, a reviewing court must not substitute

its judgment for the jury's, nor may a reviewing court reweigh

the evidence or determine credibility of the witnesses.'

[Citation.]"   Moller v. Lipor, Nos. 1-04-3640, 1-05-0061 cons.,

slip op. at 11 (September 29, 2006).     In other words, a motion

for directed verdict or judgment n.o.v. should not be granted

where the evidence demonstrates a substantial factual dispute or

where the witnesses's credibility is at issue.     Our review of

this issue is de novo.    Schiff v. Friberg, 331 Ill. App. 3d 643,

657, 771 N.E.2d 517 (2002).

                         1.   Standard of Care

     "The central issue in a medical-malpractice action is the

                                   16
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standard of care against which a doctor's negligence is judged."

Curi v. Murphy, 366 Ill. App. 3d 1188, 1199, 852 N.E.2d 401

(2006).   It is the plaintiff's burden to prove by a preponderance

of the evidence that the defendant deviated from that standard of

care.   Borowski, 60 Ill. 2d at 423.    A deviation from the

standard of care constitutes professional negligence, which must

be proved by expert testimony.   Borowski, 60 Ill. 2d at 423; IPI

Civil (2000) No. 105.02.

     Dr. Brown, as the plaintiff's family practitioner expert,

testified that under the standard of care applicable to a primary

care practitioner, Dr. Hameeduddin was required to inform her

patient that Dr. Ferguson operated at the wrong level.    The

standard of care also required Dr. Hameeduddin to coordinate her

care of Mrs. Mansmith with Dr. Ferguson and, therefore, Dr.

Hameeduddin had a duty to inform Dr. Ferguson that he had

performed the surgical operation at the wrong level.    In effect,

Dr. Hameeduddin had a medical duty to resolve the inconsistency

between the second MRI report that showed stenosis at the L4-L5

vertebrae and Dr. Ferguson's postoperative report claiming that

he performed a laminectomy at that very level.

     Before the jury, Dr. Hameeduddin testified that the

conclusions contained in the two reports were "confusing," making

her "[un]aware of what had happened."    Dr. Hameeduddin admitted

                                 17
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during cross-examination, however, that if she became aware that

a specialist had negligently treated her patient, she would have

a duty to tell the patient.    Dr. Brown testified that Dr.

Hameeduddin deviated from the standard of care by failing to act

to correct her "confusion"; that is, failing to resolve the

"inconsistency" between the second MRI report showing the same

pathology Mrs. Mansmith had presurgery and Dr. Ferguson's

postoperative report in which he stated he successfully addressed

that pathology during the laminectomy.

     Based on the conflicting testimony of Dr. Brown and Dr.

Hameeduddin as to when a duty to disclose to a patient is

triggered, the question before the jury was whether, under the

circumstances shown by the evidence, an inconsistency or surgical

negligence by Dr. Ferguson was demonstrated by the August 1997

MRI report in light of Dr. Ferguson's postoperative report.

Based on the testimony of Dr. Eisenstein and Dr. Hameeduddin, the

jury was free to determine that an "inconsistency" was

insufficient to trigger a duty on the part of Dr. Hameeduddin to

discuss the results of 1997 MRI and Dr. Ferguson's postoperative

findings with Mrs. Mansmith.    If, however, the evidence

established professional negligence on the part of Dr. Ferguson,

then, based on Dr. Hameeduddin's own testimony, she was required

to tell Mrs. Mansmith of Dr. Ferguson's negligence.

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      The record establishes that Mrs. Mansmith remained Dr.

Hameeduddin's patient through at least January 2, 1998, when she

saw her last at an office visit.      There is no dispute that at no

time did Dr. Hameeduddin disclose to Mrs. Mansmith the evidence

of Dr. Ferguson's possible professional negligence during the

1996 laminectomy.    Yet, Dr. Hameeduddin received medical

corroboration of the accuracy of the August 1997 MRI film and

report.   Dr. Miz saw Mrs. Mansmith on August 28, 1997, and

reviewed the August 1997 MRI film and report.     In his

correspondence to Dr. Hameeduddin, Dr. Miz related that Mrs.

Mansmith underwent a laminectomy between the L1 and L3 vertebrae,

that she had significant spinal stenosis at L4-L5, and she was

suffering excruciating pain, rated at 10 on a scale of zero to

10.   Also, Dr. Santos saw Mrs. Mansmith in October 1997.     In his

correspondence to Dr. Hameeduddin, he stated that since her prior

1996 MRI scan, Mrs. Mansmith had undergone a laminectomy at L1

through L3.

      Based on this evidence, even if professional negligence of

Dr. Ferguson had to be shown to trigger the duty Dr. Hameeduddin

admits she had to discuss this with Mrs. Mansmith, we find more

than sufficient evidence for the jury to conclude that the higher

showing was met.    It was within the jury's prerogative to

conclude that Dr. Hameeduddin had a continuing duty to discuss

                                 19
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with Mrs. Mansmith what amounted to substantial evidence of the

same pathology that existed presurgery in 1996, in direct

conflict with Dr. Ferguson's claim that he performed the

laminectomy as he had intended.    Based on this evidence, the jury

was free to conclude that Dr. Ferguson's professional negligence

should have been known to Dr. Hameeduddin, if not by August 1997,

when she received both the second MRI report and the report from

Dr. Miz, an orthopedic surgeon, a specialist on par with Dr.

Ferguson, a neurosurgeon, then certainly by October 1997 when Dr.

Santos sent Dr. Hameeduddin his report.    Thus, this knowledge

should have triggered Dr. Hameeduddin's duty to discuss Dr.

Ferguson's surgical negligence with Mrs. Mansmith.

     We find the evidence in the record regarding the standard of

care and of Dr. Hameeduddin's deviation from that standard of

care to be more than sufficient to withstand her motions for

directed verdict and judgement n.o.v.     While the evidentiary

showing that Dr. Hameeduddin elected to treat Mrs. Mansmith

without addressing her confused reaction to the second MRI and

Dr. Ferguson's postoperative report may not have been sufficient

to meet the plaintiff's burden as to a deviation of the

applicable standard of care, the additional evidence on this

point while Dr. Hameeduddin remained Mrs. Mansmith's primary care

physician was more than sufficient to make this a jury question.

                                  20
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The evidence is undisputed that at no time after the receipt of

medical reports corroborating the second MRI results did Dr,

Hameeduddin ever discuss with Mrs. Mansmith these finding in

relation to Dr. Ferguson's postoperative report stating that he

had performed a laminectomy at the L4-L5 level, even though this

duty continued through January 1998.

     Accordingly, we reject Dr. Hameeduddin's claim that there

was no evidence that she deviated from her standard of care in

treating Mrs. Mansmith after the surgical operation performed by

Dr. Ferguson and before Mrs. Mansmith received the epidural

injection.   Also, based on the record, it is without contention

that of all the medical professions involved with the treatment

and care of Mrs. Mansmith, only Dr. Hameeduddin was sent and

received the reports clearly establishing that Dr. Ferguson

performed the surgery on the wrong level and Mrs. Mansmith, at

the time of the epidural steroid injection, still suffered from

the same pathology for which she had agreed to undergo elective

surgery.    As Dr. Hameeduddin testified herself, she had a duty to

inform her patient of negligent medical care provided by a

specialist to whom she had referred a patient.   The record is

clear that Dr. Ferguson did just that and that Dr. Hameeduddin

had clear evidence of that negligence prior to the second

surgical operation Mrs. Mansmith underwent in December 1997.     The

                                 21
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record evidence was sufficient that Dr. Hameeduddin failed in

fulfilling her duty to her patient.   The record further

establishes that Mrs. Mansmith died without ever having been

informed that the first surgery she agreed to undergo to

alleviate her pain and numbness was incorrectly performed.

     In sum, the evidence clearly supports the jury's finding

that Dr. Hameeduddin had a duty to inform Mrs. Mansmith of Dr.

Ferguson's negligence during the first operation and that her

care of Mrs. Mansmith deviated from that standard.   See Gee v.

Treece, 365 Ill. App. 3d 1029, 1035, 851 N.E.2d 605 (2006)

(whether defendant doctor "was negligent for failing to [properly

treat and care for the patient] in light of the information he

had to work with" was for the jury to determine).    While Dr.

Hameeduddin claims that her duty to Mrs. Mansmith was satisfied

by the referral of Mrs. Mansmith to specialists after the receipt

of the August 1997 MRI, a contention supported by her expert, we

cannot say that her duty ended there in the face of reports from

three physicians that stenosis existed as it did prior to Dr.

Ferguson's surgical operation.   In particular, where the record

evidence reveals that Dr. Hameeduddin was the only physician that

had reviewed the conflicting MRI scans (1996 and 1997) and Dr.

Ferguson's postoperative report, the burden to have passed on Dr.

Ferguson's postoperative report to the other specialists was

                                 22
1-04-1243


slight.   Passing on Dr. Ferguson's report might well have

provided the cover she claims here of deferring to a specialist.

But having failed to do that, there was sufficient evidence to

allow the jury to determine that what Dr. Hameeduddin did not do,

was a deviation of the standard of care she owed to Mrs.

Mansmith.

     It is against this backdrop that we examine whether Dr.

Hameeduddin's deviation from the standard of care was a proximate

cause of the pain and suffering Mrs. Mansmith endured following

Dr. Ferguson's negligent operation and Mrs. Mansmith's death

arising from the epidural injection.

                        2.    Proximate Cause

     The expression "proximate cause" means "a cause which, in

natural or probable sequence, produced the injury complained of.

It need not be the only cause, nor the last or nearest cause."

IPI Civil (2000) No. 15.01.    Proximate cause is to be determined

from all the attending circumstances, and "'it can only be a

question of law when the facts are not only undisputed but are

also such that there can be no difference in the judgment of

reasonable men as to the inferences to be drawn from them.'"

Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 19, 724

N.E.2d 115 (1999), quoting Merlo v. Public Service Co., 381 Ill.

300, 318, 45 N.E.2d 665 (1942).    "The plaintiff need not show a

                                  23
1-04-1243


better result would have been obtained absent the doctor's

alleged negligence in order to establish proximate cause."

Sinclair v. Berlin, 325 Ill. App. 3d 458, 464, 758 N.E.2d 442

(2001).

     Based on the cases each side cites in support of their

respective positions, opposing doctrines are offered to assist us

in analyzing the proximate cause issue here.    Dr. Hameeduddin

contends that this case should be analyzed under the "loss of

chance" theory, citing Scardina v. Nam, 333 Ill. App. 3d 260, 775

N.E.2d 16 (2002), and Aguilera v. Mt. Sinai Hospital Medical

Center, 293 Ill. App. 3d 967, 691 N.E.2d 1 (1997).    The

plaintiff, on the other hand, cites to an "informed consent"

case, Coryell v. Smith, 274 Ill. App. 3d 543, 653 N.E.2d 1317

(1995), in support of affirming the judgment.    While this case,

given its unique facts, does not fall neatly within either

doctrine, we find support from cases involving each doctrine in

addressing the issue before us.    Of course, it is the traditional

test of proximate causation that we must apply regardless of the

doctrine.   Holton v. Memorial Hospital, 176 Ill. 2d 95, 107, 679

N.E.2d 1202 (1997) (reaffirming Borowski and holding that the

traditional standard of proving causation applies in medical

malpractice actions).

     In her reply brief, Dr. Hameeduddin restates her principal

                                  24
1-04-1243


contention regarding proximate causation: "For Dr. Brown to opine

that Dr. Ferguson and the decedent would have done something

differently had Dr. Hameeduddin told them that Dr. Ferguson

operated on the wrong level is purely speculative.    Such

speculation is not sufficient to support a causal connection

between Dr. Hameeduddin not telling the decedent and Dr. Ferguson

of the improper surgery and the decedent's pain."    She contends

that Aguilera and Scardina are instructive on the speculative

nature of the claimed causal connection in this case.    In

Aguilera, the plaintiff's claim was that a delay in performing a

CT scan was a proximate cause of the decedent's death.       Aguilera,

293 Ill. App. 3d at 968.   The plaintiff's theory was that an

earlier CT scan would have led to neurosurgery to prevent or

lessen the injury suffered by the decedent.    However, the only

neurosurgeons that testified   agreed that an earlier CT scan

would not have led to neurosurgery because the damage to the

decedent's brain was beyond surgical help.    Thus, there was no

medical link between the alleged negligence in the delay in

performing a CT scan and any treatment that might have been

available.   Aguilera, 293 Ill. App. 3d at 976.

     A similar situation arose in Scardina.    In that case, the

trial court directed a verdict in favor of Dr. Nam based on the

absence of any evidence that Dr. Nam's alleged failure to

                                25
1-04-1243


properly read the radiological film lessened the effectiveness of

the subsequent surgery.   The plaintiff's claim was that Dr. Nam's

professional negligence resulted in the surgeon missing a portion

of the plaintiff's damaged colon.    The directed verdict was

affirmed in Scardina because there was no medical testimony that

the radiological report impacted the surgeon's examination of the

plaintiff's colon during the subsequent surgery.    Scardina, 333

Ill. App. 3d at 271.   The circumstances here are not comparable

to those in Aguilera or Scardina.

     Here, the plaintiff's theory is that Dr. Hameeduddin's

failure to inform Mrs. Mansmith that Dr. Ferguson operated on the

wrong part of her spine was a proximate cause of the pain and

suffering she endured after Dr. Ferguson's negligent operation

and the infection risk she faced by the epidural injection that

resulted in the acute staph infection that killed her.    As to the

medical treatment Mrs. Mansmith should have received, Drs.

Ferguson, Fager, and Lustgarten, all testified that given the

same pathology in 1997 that existed in 1996, the surgical

operation that Mrs. Mansmith agreed to undergo in 1996 was the

correct surgical operation for her in 1997.    Dr. Ferguson stated

that he would have recommended that Mrs. Mansmith undergo a

laminectomy at the L4-L5 area; that she was counterindicated for

an epidural steroid, and the risk of infection was different

                                26
1-04-1243


between a laminectomy and a steroid injection because with an

epidural injection into the spinal canal, any infection would be

much deeper and, hence, put Mrs. Mansmith at a greater risk.

     Dr. Fager, Dr. Ferguson's expert witness, echoed Dr.

Ferguson's testimony: "The only treatment would be the treatment

that was originally planned for her.    There would be no other

treatment that would be the thing to do."    In fact, Dr. Fager

left no doubt as to his view on the epidural injection.    "In my

view, it was contraindicate[d].    I think it should never have

been done.   I think - - I can't think of doing anything worse to

this lady at that point in time than putting a needle in her

spine at that level where the spinal stenosis was and attempt to

inject a steroid into that space around the dura covering over

the nerves to her legs.   I can't think of anything that would be

worse.   I would never have even considered doing that."

     Dr. Fager further testified that the success rate for the

laminectomy Dr. Ferguson intended to perform in 1996, and that

Mrs. Mansmith should have received in 1997, was 90%.    Dr.

Lustgarten testified: "Had surgery been done properly, Mrs.

Mansmith had a 90% or better probability of being cured of her

leg pain, her back pain would also have felt better."    Dr.

Skaletsky stated in his report: "[I]t is not logical to initially

operate on severe stenosis and then, when it is discovered that

                                  27
1-04-1243


the pathology and the same symptoms persist due to an improperly

performed operation, to not perform the proper procedure."    Dr.

Brown testified: "If surgery was need in June of '96, it was

needed in August '97 ***."

     As to Mrs. Mansmith's pain and suffering, Dr. Miz testified

that on a scale of zero to 10, on August 28, 1997, Mrs.

Mansmith's pain was at 10, and at 4 at its best.   It is also

clear on the record that, had a laminectomy been properly

performed in either 1996 or prior to December 1997, Mrs. Mansmith

would never have undergone the epidural steroid injection, which

resulted in the acute staph infection that killed her.

     Against this evidence, neither Aguilera nor Scardina

provides any support for Dr. Hameeduddin's contention that there

is an absence of evidence on proximate cause in this case.    Nor

does Dr. Hameeduddin even suggest that there is an absence of

medical testimony between what Dr. Ferguson intended to do during

the laminectomy in 1996 and what he would have done had Dr.

Hameeduddin informed him in 1997 that he performed the

laminectomy on the wrong level.    A broad reading of another "loss

of chance" case, Gill v. Foster, 157 Ill. 2d 304, 626 N.E.2d 190

(1993), suggests that under the circumstances present here, the

causal issue was properly left for the jury.   In Gill, the

hospital was found not liable where the treating physician

                                  28
1-04-1243


testified that a nurse's failure to notify him of the patient's

condition did not affect his treatment of the patient.   Gill, 157

Ill. 2d at 311.   Here, there was no testimony by Dr. Miz that he

would have prescribed the same epidural steroid injection had he

known that a neurosurgeon had concluded that a laminectomy was

the proper medical treatment to provide relief to Mrs. Mansmith

for her pathology.   While a retort may be that the plaintiff

should have asked Dr. Miz what he would have done had he known

about Dr. Ferguson's opinion that only a laminectomy was the

proper medical procedure, the plaintiff's focus was never on Dr.

Miz, or what he should or should not have done.   The plaintiff's

case against Dr. Hameeduddin centered on what Dr. Hameeduddin

knew and did not disclose, and what Dr. Ferguson would have done

had Dr. Hameeduddin complied with the standard of care owed to

Mrs. Mansmith.

     Accordingly, we reject Dr. Hameeduddin's contention that it

is pure speculation that Dr. Ferguson would have done anything

differently had Dr. Hameeduddin informed him that he performed

the laminectomy on the wrong level.   Dr. Ferguson's testimony

clearly supports the contrary.

     We also note the jury was properly instructed that a fact

may be proved by circumstantial evidence (IPI Civil (2000) No.

3.04), that facts may be proved by reasonable inferences drawn

                                 29
1-04-1243

from the evidence, and that it may use "common sense gained from

your experiences in life in evaluating what you see and hear

during trial" (IPI Civil (2000) No. 1.01).    At the very least,

the medical evidence on proximate causation supported the

reasonable inference apparently drawn by the jury that Dr.

Ferguson would have done something differently had Dr.

Hameeduddin informed him that he performed the laminectomy on the

wrong level.   We note that Dr. Fager testified that Dr. Ferguson

was never aware that he performed surgery on the wrong level

based on the medical records he reviewed.    It was only Dr.

Hameeduddin that received the records which showed Dr. Ferguson's

malpractice.

     The evidence recited above made the issue of proximate cause

between Dr. Hameeduddin's professional negligence and what Dr.

Ferguson would have done a question for the jury to answer.    See

Holton, 176 Ill. 2d at 109 (proximate cause was a jury question

where there was evidence "that the doctors would have undertaken

a different course of treatment had they been accurately and

promptly apprised of their patient's progressive paresis").

     In her main brief, Dr. Hameeduddin contends that "[w]ithout

any direct testimony from the decedent, plaintiff cannot sustain

his burden as to causation."   Once again we disagree; no direct

evidence was needed.   "The evidence was not direct, but it was


                                30
1-04-1243

circumstantial; its strength would be a matter for the trier of

fact."    Pyne v. Witmer, 129 Ill. 2d 351, 362, 543 N.E.2d 1304

(1989).

     We begin our review of the evidence of what Mrs. Mansmith

would have done had Dr. Hameeduddin complied with her duty of

care with what are essentially uncontested facts.    In early 1996,

Mrs. Mansmith was suffering from severe back pain and numbness in

her legs.    After months of conservative treatment proved

unsuccessful in providing any long-term relief to Mrs. Mansmith,

an MRI was ordered.    As Dr. Eisenstein testified the standard of

care then required Dr. Hameeduddin to discuss with Mrs. Mansmith

the abnormalities on the MRI.    The results of the MRI in turn

prompted a referral to a specialist.    Dr. Ferguson then saw Mrs.

Mansmith and recommended a laminectomy at the L4-L5 area.

Presumably, and consistent with Dr. Hameeduddin's standard of

care, she discussed the available options with Mrs. Mansmith in

light of Dr. Ferguson's recommendation.    Mrs. Mansmith elected to

undergo the laminectomy.    In fact, Mrs. Mansmith spent little

time in making her decision: she first saw Dr. Ferguson on August

7, 1996; the laminectomy was performed on August 12, 1996.

     Here, the circumstantial evidence was sufficient to make the

causal connection between Dr. Hameeduddin's professional

negligence, as we have previously determined, and the ultimate


                                 31
1-04-1243

injuries suffered by Mrs. Mansmith a question for the jury to

determine.

                 "Although defendant argues that

            plaintiff presented no evidence that the

            decedent would have acted any differently had

            she known that the results of the [medical

            test confirmed one medical condition over

            another], the record indicates otherwise. ***

            [Based on the evidence presented] it could be

            inferred that [the plaintiff and decedent]

            would have acted differently had the

            defendant communicated the results to them.

            *** Had the defendant communicated that the

            ultrasound test indicated an ectopic

            pregnancy rather than a miscarriage, it is

            not unreasonable to infer that medical help

            might have been sought sooner.   Thus,

            applying the Pedrick standard, we conclude

            that the trial court did not err in denying

            defendant's motion for a directed verdict."

            Haist v. Wu, 235 Ill. App. 3d 799, 821, 601

            N.E.2d 927 (1992).

Our review of the record evidence here, taken in the light most


                                 32
1-04-1243

favorable to the plaintiff, leads us to the same conclusion.    See

also Marshall v. University of Chicago Hospitals & Clinics, 165

Ill. App. 3d 754, 758, 520 N.E.2d 740 (1987) (undisputed facts

demonstrate an irrefutable conclusion that plaintiff would have

acted presurgery as she acted post-surgery).

     On the record before us, there was objective medical

evidence that Mrs. Mansmith would have acted as she acted in

August 1996 by undergoing a second laminectomy had she been

informed that the laminectomy she underwent in 1996 was

incorrectly performed.   As the same pathology existed in 1997 as

existed in 1996, it was only logical that the "the only treatment

would be the treatment that was originally planned for her."    A

reasonable inference can be drawn, as the jury apparently did,

that Mrs. Mansmith agreed to undergo a different surgery because,

as the evidence suggests, she had the misimpression that the

first surgery was performed properly and did not provide any

relief.   It was natural and foreseeable that Mrs. Mansmith,

without the benefit of the objective medical evidence possessed

by Dr. Hameeduddin, would conclude that surgery, having provided

no relief, an epidural injection was worth the risk.   It is also

reasonable to infer that, had she been informed that the initial

surgery she had agreed to, which, according to the medical

testimony, provides relief to 90% of patients, she would have


                                33
1-04-1243

chosen to undergo the proper surgery where the medical testimony

was that the epidural injection provided at best temporary

relief.   Based on the evidence in the record, the jury was free

to drawn the inference from the undisputed actions of Mrs.

Mansmith in 1996, in light of the medical testimony, that she

would have undergone a second laminectomy had she been properly

informed.    In reaching this conclusion, we take some guidance

from the "informed consent" case cited by the plaintiff, Coryell,

without necessarily agreeing with its statement that the

"plaintiff was not required to present expert evidence

specifically as to proximate causation."      Coryell, 274 Ill. App.

3d at 546.

     Under the doctrine of informed consent, there is no dispute

that "a plaintiff must point to significant undisclosed

information relating to the treatment which would have altered

her decision to undergo it."     Coryell, 274 Ill. App. 3d at 546.

While there was "significant undisclosed information relating to

treatment" in this case, what we take from Coryell is the

recognition that there are certain "'"nonmedical judgment[s]

reserved to the patient alone."'"      Coryell, 274 Ill. App. 3d at

548, quoting Jambazian v. Borden, 25 Cal. App. 4th at 847-48, 30

Cal. Rptr. 2d 768, 775 (1994).    While there was medical evidence

on the issue of proximate causation present in the record, this


                                  34
1-04-1243

case, to a certain extent, also involves Mrs. Mansmith being

deprived of the medical evidence to determine for herself what

surgical procedure to undergo.    While the trial court was correct

in sustaining the objection to the question put to Dr. Brown as

to what Mrs. Mansmith would have done had she known of Dr.

Ferguson's negligent surgical operation as calling for

speculation, we do not agree with Dr. Hameeduddin that, ipso

facto, there was no evidence in the record on that precise point.

The jury had more than sufficient evidence to make a reasonable

and objective determination as to what Mrs. Mansmith likely would

have done based on the evidence that was presented.    "'[W]here

death has sealed the lips of the one who might otherwise have

shed the most light on the question.    The plaintiff was compelled

to tell his story with the best evidence available to him.'"

Pyne, 129 Ill. 2d at 362, quoting Sloma v. Pfluger, 125 Ill. App.

2d 347, 358, 261 N.E.2d 323 (1970).    To require more would in

effect preclude Mrs. Mansmith, and others like her (however rare

this may be given the absence in Illinois of a similar factual

case) from receiving any relief for professional negligence that

was clearly shown and clearly deprived her of making a nonmedical

judgment reserved to her alone.    We also take guidance from the

caution expressed by our supreme court in the "loss of chance"

case of Holton:


                                  35
1-04-1243

            "To the extent a plaintiff's chance of

            recovery or survival is lessened by the

            malpractice, he or she should be able to

            present evidence to a jury that the

            defendant's malpractice, to a reasonable

            degree of medical certainty, proximately

            caused the increased risk of harm or lost

            chance of recovery. *** [Citations.] To hold

            otherwise would free health care providers

            from legal responsibility for even the

            grossest acts of negligence, as long as the

            patient upon whom the malpractice was

            performed already suffered an illness or

            injury ***."   Holton, 176 Ill. 2d at 119.

Or, we add here, died before ever discovering the professional

negligence that deprived her of the right to decide medical

alternatives for herself.

     Based on the evidence presented, we cannot say the jury was

without evidentiary support as to each of the elements of a

medical malpractice action in entering its verdict against Dr.

Hameeduddin and in favor of the plaintiff.    This is especially

true where the trial court here "'guarded against [speculation]

by the use of appropriate instruction[] to the jury'" in the form


                                  36
1-04-1243

a special interrogatory regarding sole proximate cause.     Holton,

176 Ill. 2d at 107, quoting Borowski, 60 Ill. 2d at 424.    As the

trial court here succinctly stated: "[T]he failure to so inform

the plaintiff or Dr. Ferguson depriving [Mrs. Mansmith] of the

ability to be informed as to [the] status of her back condition

was a question of fact for the jury to determine.   They

determined."   The trial court did not err in denying Dr.

Hameeduddin's motions for directed verdict or judgment n.o.v.

                        C. Jury Instruction

     Dr. Hameeduddin also argues that the trial court erred when

it refused to instruct the jury that Dr. Ferguson had settled

with the plaintiff and that he was no longer a defendant in the

case.   She contends that the court misled the jurors by allowing

them to believe that Dr. Ferguson remained a defendant in the

case and that no reasonable jury would have returned the $1.1

million award against her alone.

     After the jury was instructed and had begun its

deliberations, Dr. Ferguson reached a settlement agreement with

the plaintiff.   Dr. Hameeduddin then requested that the court

give the jury IPI Civil (2000) No. 2.03, which read: "[R.

Lawrence Ferguson, M.D.] is no longer a party to this case.    You

should not speculate as to the reason nor may the remaining

parties comment on why [R. Lawrence Ferguson, M.D.] is no longer


                                37
1-04-1243

a party."   The court denied Dr. Hameeduddin's request and did not

submit the instruction to the jury.

      The decision to provide the jury with a particular

instruction is within the sound discretion of the trial court.

The court's decision will not be reversed absent an abuse of

discretion.   "A trial court does not abuse its discretion so long

as, 'taken as a whole, the instructions fairly, fully, and

comprehensively apprised the jury of the relevant legal

principles.'" York v. El-Ganzouri, 353 Ill. App. 3d 1, 32, 817

N.E.2d 1179 (2004), quoting Schultz v. Northeast Illinois

Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74, 775 N.E.2d

964 (2002).

      IPI Civil (2000) No. 2.03 is intended to provide some

uniformity to a trial court's practice of commenting on

dismissals during trial.   IPI Civil (2000) No. 2.03, Comment, at

18.   The Notes on Use indicate that this is particularly

important when a settlement agreement has the potential to bias a

witness's testimony.   IPI Civil (2000) No. 2.03, Notes on Use, at

18.

      In this case, Dr. Ferguson testified at trial as a

defendant, not as a party to a settlement agreement.   He did not

reach an agreement with the plaintiff until after the jury heard

all of the evidence, was instructed on the applicable laws, and


                                38
1-04-1243

sent to deliberate.   Therefore, concerns about whether the

agreement biased his testimony were lessened.   In addition, the

jury specifically found against Dr. Hameeduddin on each count.

On the verdict form the jury had the option of finding for or

against Dr. Ferguson and Dr. Hameeduddin, individually, on each

count.   If the jury had believed that Dr. Hameeduddin was only a

"peripheral defendant," it could have found as such on the

verdict form.   We also cannot say the trial court abused its

discretion when it determined that deliberations had been on

going for "a substantial period of time" when the instruction was

tendered and the instruction would have put undue emphasis on the

case against Dr. Hameeduddin.   Accordingly, we find that the

trial court did not err in refusing to tender the instruction.

                             D. Costs

     Dr. Hameeduddin argues that the trial court erred when it

assessed the costs of Dr. Ferguson's videotaped evidence

deposition against her.   She contends that the evidence

deposition was not necessary and that the plaintiff neither

requested that Dr. Ferguson's evidence deposition be videotaped

nor paid for it.

     In Illinois, a prevailing party may recover costs if a

statute or supreme court rule so provides.   Irwin v. McMillan,

322 Ill. App. 3d 861, 864, 750 N.E.2d 1246 (2001).   The supreme


                                39
1-04-1243

court defines costs as "allowances in the nature of incidental

damages awarded by law to reimburse the prevailing party, to some

extend at least, for the expenses necessarily incurred in the

assertion of his rights in court."   Galowich v. Beech Aircraft

Corp., 92 Ill. 2d 157, 165-66, 441 N.E.2d 318 (1982).    Supreme

Court Rule 208(d) notes that these "fees and charges may in the

discretion of the trial court be taxed as costs."    134 Ill. 2d R.

208(d).   A trial court's judgment awarding costs will not be

reversed absent an abuse of discretion.   Irwin, 322 Ill. App. 3d

at 864.

     Dr. Hameeduddin argues that the plaintiff did not pay for

the videotaped deposition and he, therefore, should not be able

to recover its costs.   Both parties indicated that Dr. Ferguson's

evidence deposition was taken at the request of Dr. Ferguson's

attorney out of concern for Dr. Ferguson's health.   Supreme Court

Rule 206(g)(5) provides: "The party at whose instance the

videotaped deposition is taken shall pay the charges of the

videotape operator for attending and shall pay any charges for

filing the videotape of an evidence deposition."    188 Ill. 2d R.

206(g)(5).   If Dr. Ferguson's attorney requested that the

deposition be videotaped, pursuant to Rule 206(g)(5) Dr. Ferguson

would have been responsible for those costs.   However, at oral

arguments the plaintiff's attorney indicated that the plaintiff


                                40
1-04-1243

bore the cost of Dr. Ferguson's videotaped evidence deposition.

Further, we note that the record shows that it was "taken by the

plaintiff."

     Assuming that the plaintiff bore the costs of the videotaped

evidence deposition, he cannot recover those costs unless the

deposition was "necessarily used at trial," that is, it was

"indispensable" to the trial.    Irwin, 322 Ill. App. 3d at 865.

The mere use of an evidence deposition at trial does not mean

that the deposition was "necessary" or "indispensable" to trial.

Further, the unavailability of a witness does not, by itself,

rise to the level of being "indispensable."    Irwin, 322 Ill. App.

3d at 866 and cases cited therein.

     Prior to trial, Dr. Ferguson was diagnosed with a serious

illness.    He testified that although it would be difficult to

attend the hearing every day, "I think I can come every day but I

wouldn't stay for too long."    Accordingly, his videotaped

deposition was not "necessary" or "indispensable" to the trial.

We therefore vacate the trial court's order awarding the

plaintiff $1,009.55 for Dr. Ferguson's videotaped evidence

deposition.    See Irwin, 322 Ill. App. 3d at 869.

                             CONCLUSION

     For the reasons stated, we affirm in part and vacate in part

the judgment of the trial court.


                                 41
1-04-1243
     Affirmed in part and vacated in part.

     SOUTH, J., concurs.

     WOLFSON, J., dissents.




     JUSTICE WOLFSON, dissenting:

     Dr. Hameeduddin did not serve her patient well when she failed

to tell her about the site of surgery discrepancies between Dr.

Ferguson's post-operative report and the second MRI.   The jury had

the right to find that was a deviation from the standard of care,

thin as it might be.   At the same time, I believe the evidence

concerning proximate cause, when viewed most favorably to the

plaintiff, so overwhelming favors the defendant that the verdict

for the plaintiff cannot stand.   Snelson v. Kamm, 204 Ill. 2d 1, 42

(2003); Scardina v. Nam, 333 Ill. App. 3d 260, 270 (2002).

      Plaintiff has pursued a theory, successfully so far, that

never has been approved by any reported decision in this State.

The plaintiff's theory is that Dr. Hameeduddin's failure to inform

Mrs. Mansmith that Dr. Ferguson operated on the wrong part of her

body was a proximate cause of the injuries incurred when Dr. Wiz

recommended an epidural steroid injection, which then caused the

acute staph infection that killed her.

                                  42
1-04-1243
     Plaintiff    cites      informed    consent        cases   to    support   his

contention that he did not have to present expert testimony to

establish proximate cause. See, for example, Coryell v. Smith, 274

Ill. App. 3d 543 (1995); Zalezar v. Vercimak, 261 Ill. App. 3d 250

(1993); Casey v. Penn, 45 Ill. App. 3d 1068 (1977).

     Our Supreme Court never has adopted the proposition that

expert testimony is not required to prove proximate cause in

informed consent cases.        In fact, in a case involving a lack of

communication between nursing staff and the attending physician the

Supreme Court referred to the "general rule" that must be applied:

"except in very simple cases, expert testimony is necessary in

professional negligence cases to establish the standard of care and

that its breach was the proximate cause of the plaintiff's injury."

Snelson v. Kamm, 204 Ill. 2d at 43-44.                (Emphasis added).

     The case we decide today is not a "simple case."                           More

significantly, it is not an informed consent case.                   The plaintiff

does not claim the defendant failed to warn Mrs. Mansmith about

foreseeable risks and complications involved in medical treatment

performed   by   the    defendant   or       someone    under   the    defendant's

control.    See Coryell, 274 Ill. App. 3d at 549.                     In fact, the

plaintiff expressly disclaims any desire to categorize this case as

an informed consent case.

     Nor    is   this    a   case   where       the    defendant's      negligence

"compromised the effectiveness of treatment received or increased

                                        43
1-04-1243
the risk of harm to the plaintiff."           Holton v. Memorial Hospital,

176 Ill. 2d 95, 119 (1997).            That is, this is not a "loss of

chance" case where the theory is used to prove cause-in-fact.

Scardina v. Nam, 333 Ill. App. 3d at 269.

       What, then, is this case?        Plaintiff calls it a "failure to

inform case."       But he offers no support for the proposition that

such a theory exists in this State.          The barrier faced by plaintiff

is the well-established proposition that in this medical negligence

case   he   must    "establish,   to   a    reasonable     degree   of   medical

certainty, that the defendant's malpractice more probably than not

caused his or her injury."             Aguilera v. Mount Sinai Hospital

Medical Center, 293 Ill. App. 3d 967, 972 (1997).                   The causal

connection must not be contingent, speculative, or merely possible

but, rather, "must be shown by such a degree of probability as to

amount to    a     reasonable   certainty    that   such    a   nexus    exists."

Scardina v. Nam, 333 Ill. App. 3d at 271; Susnis v. Radfar, 317

Ill. App. 3d 817, 827 (2000).               Generally, simply creating a

condition which makes the injury possible is not, standing alone,

enough to establish proximate cause.          Unger v. Eichleay Corp., 244

Ill. App. 3d 445, 451 (1993).

       The factual chain from the defendant's lack of candor to the

acute staph infection that killed Mrs. Mansmith has been stretched

beyond the breaking point.        The evidence invites the jury to guess

and speculate.        Dr. Brown's testimony engraved the invitation.

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From the simple fact that at one point the Mansmiths expressed a

desire to go to the University of Chicago Medical Center for a

second   opinion   Dr.   Brown   concluded   she   would   have   sought    a

neurosurgical reevaluation and had a second operation.             That is

unsupported speculation.     The Mansmiths did not seek a referral to

the University of Chicago until after Mrs. Mansmith received the

injection.

     On several occasions, the trial court sustained objections

when Dr. Brown attempted to testify to what, in his opinion, Mrs.

Mansmith would have done if the defendant had told her about the

discrepancy between Dr. Ferguson's operative report and the second

MRI. The grounds for the objection were that the witness was being

asked to speculate.      The trial court rulings were correct.         But

then the jury was allowed to engage in that same speculation.

     Plaintiff's cause is not aided by the fact that the defendant

failed to inform Dr. Ferguson he might have operated on the wrong

part of Mrs. Mansmith's back.       The Mansmiths had decided not to

return to Dr. Ferguson even before they learned about his misplaced

surgery.     For what conceivable reason would they return to him

after learning about his gross negligence?

     Dr. Wiz had access to Mrs. Mansmith's medical records.                He

recommended the epidural injection instead of the surgery because

Mrs. Mansmith had increased risk factors for surgery and had

suffered previous postsurgical problems. Neither at his deposition

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nor at trial was Dr. Miz asked the question that might have

fortified the plaintiff's causation theory.        He never was asked if

he would have recommended surgery instead of the epidural injection

if he had been told that Dr. Ferguson may have operated at the

wrong level.   That omission speaks volumes.        We are left with no

credible evidence that the defendant's failure to inform Mrs.

Mansmith had substantial impact on Dr. Wiz's decision to use the

epidural injection.

     Because   I   believe   the   evidence   of   proximate   cause   was

deficient as a matter of law, I disagree with the majority's

conclusion that the trial court did not err when it denied the

defendant's motion or a judgment n.o.v.       I also believe, given the

unusual fact situation here, it was error to refuse to tell the

deliberating jury the case against Dr. Ferguson had been settled.

The grave and unnecessary risk of tarring Dr. Hameeduddin with Dr.

Ferguson's flagrant misconduct could easily have been mitigated.

I respectfully dissent.




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