                                    FIRST DIVISION
                                    Date Filed: December 28, 2009


No. 1-08-0265


THOMAS MARTINEZ,                            )    Appeal from the
                                            )    Circuit Court of
     Plaintiff-Appellee,                    )    Cook County.
                                            )
    v.                                      )    No. 03 L 015529
                                            )
SARMED ELIAS, M.D., and                     )    The Honorable,
BONE & JOINT CENTER,                        )    James Varga,
                                            )    Judge Presiding.
     Defendants-Appellants.                 )

     PRESIDING JUSTICE HALL delivered the opinion of the court:

     The plaintiff, Thomas Martinez, filed a medical malpractice

case against the defendants, Sarmed Elias, M.D. and the Bone &

Joint Center, alleging that Dr. Elias performed unnecessary

procedures on the plaintiff's lower spine.      Following trial, the

jury returned a verdict in favor of the plaintiff and against the

defendants in the amount of $500,000.      The trial court granted

the defendants' posttrial motion for a remittitur and reduced the

jury award to $400,000.

     The defendants appeal raising the following issues: whether

the admission of a financial motive for the surgery was error and

whether a new trial is required because the verdict was against

the manifest weight of the evidence.     The plaintiff cross-

appeals, challenging the granting of the remittitur.

                           I. BACKGROUND

                              A. Facts

     The plaintiff, a journeyman carpenter, injured his lower

back and right shoulder at work lifting a sheet of drywall on
No. 1-08-0265


November 14, 2000.    At the time of his injury, the plaintiff was

42 years old and had underlying degenerative disc disease at

multiple levels of his lumbar spine.    The plaintiff was initially

treated by several physicians before his primary care physician

referred him to Dr. Sarmed Elias, an orthopedic surgeon.

     Dr. Elias treated the plaintiff from January 11, 2001, to

April 30, 2002.    During the plaintiff's initial visit with Dr.

Elias, he complained of daily, debilitating shoulder and back

pain, which affected his ability to run, take long walks, and

lift anything more than light weights.    The plaintiff complained

his back was stiff in the mornings and while sitting or driving;

the stiffness of his back prevented him from sitting in one place

for longer than an hour or two.    He rated his pain at 3 to 4, on

a scale of 10.    The plaintiff felt he could not return to work

given his pain.

     On January 23, 2001, the plaintiff underwent an MRI of his

spine.   The MRI showed the L2-L3 disc was normal, with

degenerative disc disease and mild stenosis at L3-L4, L4-L5, and

L5-S1, and neuroforaminal narrowing and end plate changes at all

three levels.    The MRI of the plaintiff's shoulder showed a

complete tear of the rotator cuff tendon; the plaintiff did not

have this repaired.    An X-ray taken January 26, 2001, showed a

herniated disc at L4-L5.    On January 27, 2001, an EMG was

performed, which showed mildly active right radiculopathy,

radiating pain, involving the L5-S1 level.    On January 30, 2001,

                                  2
No. 1-08-0265


Dr. Elias discussed the results of the tests with the plaintiff

and recommended a discogram to confirm the diagnosis and identify

the specific sites of pain.

     A discogram is an outpatient diagnostic procedure where dye

is injected into a disc space, increasing pressure in the space.

The pressure created is intended to reproduce the patient's pain.

The patient is asked to indicate where he feels pain and to rate

the pain on a scale of 1 to 10.    The discogram is done to

determine which disc, if any, is the cause of the patient's pain.

The results of the discogram may indicate the necessity for

surgery or an intradiscal electrothermal therapy (IDET)

procedure.

     On May 7, 2001, the plaintiff saw another orthopedic

surgeon, Dr. Howard Freedberg.    Dr. Freedberg diagnosed the

plaintiff with degenerative disc disease.

     On July 26, 2001, the plaintiff returned to see Dr. Elias,

reporting his pain as a 7 out of 10.    Again, Dr. Elias

recommended a discogram to confirm disc abnormalities.

     On August 1, 2001, Dr. Elias performed the discogram.      Based

on the procedure, Dr. Elias concluded the plaintiff had herniated

discs at L3-L4, L4-L5, and L5-S1, with grade five, through and

through, annular tears at these levels.

     At the plaintiff's next appointment, Dr. Elias recommended

an endoscopic discectomy at L3-L4 and L4-L5 and the IDET

procedure at L5-S1, as soon as possible.

                                  3
No. 1-08-0265


     An endoscopic discectomy is an outpatient surgical procedure

to remove degenerated, nonfunctioning disc material.      With the

assistance of X-ray fluoroscopy and a magnified video for

guidance, a small specially designed endoscopic probe is inserted

through the skin of the patient's back, between the vertebrae and

into the herniated disc space.     Tiny surgical attachments are

then sent down the hollow center of the probe to remove a portion

of the offending disc.     The doctor is able to view the disc

portion removal on a TV monitor.       During an IDET procedure, the

doctor, with the assistance of a fluoroscope, inserts a small

catheter into the disc to attempt to seal the tear in the

annulus, the outer shell of the disc, using a temperature-

controlled heat source inside the catheter.      No tissue is removed

from the disc.

     On December 28, 2001, Dr. Elias performed an endoscopic

discectomy at L3-L4 and L4-L5 and the IDET procedure at L5-S1 on

the plaintiff.     Following the procedures, the plaintiff

experienced pain in his right leg for the first time.1

     On April 25, 2002, the plaintiff went to see Dr. Francisco


     1
         At his August 7, 2001, visit to Dr. Elias, following his

discogram, the plaintiff completed a form indicating he had been

experiencing leg pain for eight months.      At trial, the plaintiff

explained that he had been experiencing back pain for eight

months and had placed the entry in the wrong box on the form.

                                   4
No. 1-08-0265


Gutierrez, complaining of pain in the lower lumbar area,

radiating to the posterior area of his right leg.   The plaintiff

complained that the pain worsened when he remained in the same

position too long.   Dr. Gutierrez attributed the plaintiff's

symptoms to severe degenerative disease at L3-L4, L4-L5, and L5-

S1, producing three levels of bulging discs and severe stenosis

at this area of the spine.    He recommended lumbar fusion surgery

to open the disc space, relieve nerve compression and stabilize

the plaintiff's lumbar spine.

     On April 30, 2002, the plaintiff returned to see Dr. Elias.

Dr. Elias recommended myelogram injections to assess his

condition.   The plaintiff did not follow Dr. Elias's

recommendation.

     Two years later, on September 3, 2004, the plaintiff went to

see an orthopedic surgeon, Dr. Thomas Gleason, complaining of

right lower back and buttock pain radiating down to his right

leg, causing a limp.   Dr. Gleason took X-rays and noted moderate

degenerative disc space narrowing at L3-L4 and L4-L5, with

greater narrowing at L4-L5.

     The plaintiff underwent a recommended EMG/NCV test and an

MRI before returning to see Dr. Gleason on October 1, 2004.     The

new MRI showed degenerative disc disease with disc space

narrowing at L3-L4, L4-L5, and L5-S1, mild stenosis at L3-L4 and

L4-L5, and foraminal narrowing, a painful compression of the

nerves, right greater than left, at L4-L5 and L5-S1.    Dr. Gleason

                                  5
No. 1-08-0265


diagnosed right lumbar radicular syndrome, pain in the lower back

radiating down the right leg in a radicular-type nerve-root

distribution.

     On December 11, 2003, the plaintiff filed his complaint

against the defendants, claiming that Dr. Elias breached his duty

of care to the plaintiff by Dr. Elias's performance of surgical

procedures on the plaintiff's spine and back on December 28,

2001.   The plaintiff also alleged that Dr. Elias's negligent acts

caused him to suffer severe and permanent injuries.

                   B. Pertinent Trial Testimony

     Dr. Clarence Fossier, the plaintiff's retained expert,

testified he had performed "thousands of discograms" during his

career.   He explained that the problem with discography was that

30% of the time the test renders a false positive.    As a result,

discograms are considered controversial in the orthopedic field

in terms of concordant pain.   In other words, if the discogram

produces pain similar to the patient's usual pain, does that

prove that the disc, which was injected, is the source of the

patient's back pain?   Dr. Fossier opined that Dr. Elias deviated

from the standard of care by performing the plaintiff's August 1,

2001, discogram.   Dr. Fossier identified "the standard of care

[as] what a well-trained orthopedic surgeon would do in similar

circumstances" and that the "vast majority" of orthopedic

surgeons would not perform a discogram on their own surgical


                                 6
No. 1-08-0265


patients because of the lack of objectivity it creates.    Dr.

Fossier concluded that Dr. Elias's performance of the discogram

caused the plaintiff injury because it resulted in a false

positive, leading to Dr. Elias's performance of unnecessary

surgical procedures, the endoscopic discectomy and IDET

procedure, on the plaintiff.   Dr. Fossier opined that, based on

the plaintiff's symptoms as they presented in 2001, no surgical

procedures could have relieved his back pain because he did not

have a radicular component.    Dr. Fossier concluded that Dr. Elias

breached the standard of care by relying on the discogram results

to determine that surgical procedures were indicated.

     Dr. Fossier testified further that Dr. Elias's performance

of the endoscopic discectomy was also a deviation of the standard

of care because it was not indicated, "was unnecessary," and "had

no chance of curing [the plaintiff's] backache."    Dr. Fossier

testified the passage of the endoscope during the December 28,

2001, endoscopic discectomy surgery caused the plaintiff's

radicular right leg pain.   Dr. Fossier further opined that the

surgery accelerated the degenerative process because the removal

of disc tissue widened the annular opening, creating some scar

tissue.   However, during cross-examination, Dr. Fossier

acknowledged that no one, including himself, could predict

whether the procedure in 2001 adversely affected the natural

progression of the plaintiff's disc degeneration.

     Dr. Fossier testified the IDET procedure employed by Dr.

                                  7
No. 1-08-0265


Elias is considered controversial in the area of orthopedic

medicine.   Dr. Fossier explained that the procedure was

controversial because "it doesn't work."    Dr. Fossier,

acknowledged, however, that the procedure had a "theoretical

basis to help" because the plaintiff had back pain.

     Dr. Gary Skaletsky, a neurosurgeon, testified on behalf of

the plaintiff.   According to Dr. Skaletsky, it was a deviation

from the standard of care for Dr. Elias to perform the

plaintiff's discogram where he was also the surgeon who would

perform any subsequent surgeries.     Dr. Skaletsky opined that Dr.

Elias deviated from the standard of care because the diagnostic

test of the discogram showed a degenerative pattern that did not

warrant either endoscopic surgery or the IDET procedure.    At

trial, Dr. Skaletsky attributed the plaintiff's radicular pain to

Dr. Elias's performance of the two surgical procedures, not to

the natural progression of the plaintiff's degenerative disc

disease.

     Dr. Anthony Yeung, an orthopedic spine surgeon specializing

in endoscopic spine surgery, testified as an expert witness on

behalf of the defendants.    Dr. Yeung co-developed the Yeung

Endoscopic Spine System, a series of instruments used in

endoscopic spinal surgery.    Dr. Elias attended one of Dr. Yeung's

training courses in endoscopic spine surgery in 1999 and adopted

his system.   Dr. Yeung testified he believes "endoscopic spine

surgery is going to be the future of spine surgery just like

                                  8
No. 1-08-0265


arthrosporic knee surgery and shoulder surgery became the gold

standard *** in the 1970s."    Dr. Yeung admitted he is biased

toward endoscopic spinal surgery.

     Based on his review of the plaintiff's records and his own

training and experience, Dr. Yeung concluded Dr. Elias conformed

to the standard of care in his treatment and care of the

plaintiff.    Dr. Yeung testified the plaintiff was a good

candidate for the discogram because he had an abnormal MRI

indicating three discs that were potentially painful.    Dr. Yeung

explained that a discogram is necessary to determine whether an

abnormality at a disc level that shows up on an MRI is the actual

source of pain the patient is claiming to experience.    Dr. Yeung

stated "it is very important for the surgeon who is going to make

the decision with respect to the need for surgery to do his own

discogram."    Dr. Yeung explained his rationale, testifying that

because pain is subjective, having the surgeon perform the

discogram allows the surgeon to correlate the type of pressure he

places on the patient's disc with the pain findings reported by

the patient to eliminate false positives, which in turn, provides

the surgeon with objective evidence in deciding whether surgery

is right for the patient.   Dr. Yeung concluded it is within the

standard of care for the surgeon that may later operate on the

patient to perform the discogram himself.    On cross-examination,

Dr. Yeung acknowledged that the orthopedic surgeon that performs

the patient's discogram may have a financial interest

                                  9
No. 1-08-0265


recommending surgery based on the discogram's results.   Dr. Yeung

noted there is no "check" on the recommendation for surgery by

another physician.   Dr. Yeung stated there is a disagreement

among spinal surgeons whether under these circumstances, the same

surgeon should perform both the discogram and any indicated

surgery on his own patient.

     Dr. Yeung testified that based on Dr. Elias's findings

during the discogram, the plaintiff was a proper candidate for

the endoscopic spinal surgery and the IDET procedure.    Dr. Yeung

explained that because Dr. Elias did not evoke pain at the L2-L3

level while performing the plaintiff's discogram, he was able to

validate the test.   Dr. Yeung opined that because the patient

indicated experiencing pain at the three different levels of his

lumbar spine, the results of the discogram confirmed three disc

abnormalities and endoscopic surgery was appropriate.

     On cross-examination, Dr. Yeung conceded that the radicular

pain the plaintiff complained of after the procedures by Dr.

Elias was in some way attributed to or caused by those

procedures.   However, Dr. Yeung stated that radicular pain is a

known risk of the surgery, which the standard of care requires be

discussed with the patient; Dr. Yeung asserted that, based on his

reading of the plaintiff's medical charts, Dr. Elias discussed

this risk with the plaintiff.

     Th jury returned a verdict in favor of the plaintiff in the

amount of $500,000, including an award of $155,000 for the

                                10
No. 1-08-0265


plaintiff's future medical expenses.      The trial court granted a

remittitur and reduced the award for future medical expenses to

$55,000.

                            II. ANALYSIS

    A. Denial of Motion in limine to Bar Motivation Evidence

     The defendants contend that the trial court erred when it

denied the defendants' motion in limine to bar any reference or

argument that economic motivation played any part in the care Dr.

Elias rendered to the plaintiff.      The defendants maintain that

motive is not an element of a medical malpractice cause of

action.    Therefore, financial motivation is irrelevant to

establishing the cause of action.

                        1. Standard of Review

     The court applies the abuse of discretion standard to a

review of a trial court's ruling on a motion in limine.       Schmitz

v. Binette, 368 Ill. App. 3d 447, 452, 857 N.E.2d 846 (2006).        We

will find an abuse of discretion only where no reasonable person

would take the view adopted by the trial court.      Keefe-Shea Joint

Venture v. City of Evanston, 364 Ill. App. 3d 48, 61, 845 N.E.2d

689 (2005).

                            2. Discussion

     To recover damages in a negligence medical malpractice

action, a plaintiff must establish: (1) the proper standard of

care, (2) a deviation from that standard, and (3) an injury

proximately caused by the deviation from that standard of care.

                                 11
No. 1-08-0265


Purtill v. Hess, 111 Ill. 2d 229, 241-42, 489 N.E.2d 867 (1986).

Expert medical testimony is required to establish the proper

standard of care and the defendant's deviation from that standard

unless the defendant's "negligence is so grossly apparent or the

treatment so common as to be within the everyday knowledge of a

layperson."     Purtill, 111 Ill. 2d at 242.

     The trial court denied the defendants' motion in limine to

exclude the motivation evidence because the court found it was

relevant to an issue in this case.     "Relevant evidence" is that

which has "any tendency to make the existence of any fact that is

of consequence to the determination of the action more or less

probable than it would be without the evidence."     Wojcik v. City

of Chicago, 299 Ill. App. 3d 964, 971, 702 N.E.2d 303 (1998).

     The defendants argue that because motive is not an element

of a medical malpractice case, the trial court abused its

discretion in permitting this line of questioning and testimony.

The defendants further argue, "the error of allowing the non-

issue of motive into the case was compounded by the fact that

motive was allowed to become part of the standard of care."    The

defendants contend that through the plaintiff's two experts and

the cross-examination of Dr. Elias's expert, the issue of

financial motive "was insinuated into the entire case as both an

element of the cause of action itself and the definition of the

standard of care."    The defendants maintain that the error was

further compounded because motive became a major theme of the

                                  12
No. 1-08-0265


plaintiff's closing argument.   They conclude that this evidence

deprived Dr. Elias of a fair trial because the "jury could

wrongly infer from [the evidence] that it must consider the

defendant's motive for doing the discogram and the surgeries

because motive is part of the standard of care, and conclude, as

occurred in this case, that the improperly defined standard of

care was breached because of the irrelevant issue of motive."

     In Neade v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496 (2000),

the supreme court was presented with the issue of whether, in a

complaint alleging medical negligence, the patient had a cause of

action for breach of fiduciary duty against the physician for

that physician's failure to disclose financial incentives that

existed under the physician's arrangement with the patient's HMO;

the supreme court found the patient could not bring a claim of

breach of fiduciary duty against the physician under those

circumstances.   Neade, 193 Ill. 2d at 435.   The plaintiff's

complaint alleged the physician defendant was negligent for

failing to authorize certain diagnostic tests and by refusing to

disclose his financial relationship with the patient's HMO.     The

trial court agreed with the defendants' argument that financial

motive was not relevant to whether the defendant physician

breached the applicable standard of care in treating the patient.

Neade, 193 Ill. 2d at 437-38.   The appellate court agreed with

the trial court that the allegations relating to financial motive

are not appropriate in a medical negligence claim, but held that

                                13
No. 1-08-0265


evidence relating to this issue may be relevant at trial to

attack the defendant physician's credibility if he testified.

Neade, 193 Ill. 2d at 439.   The supreme court agreed with the

appellate court that the evidence of financial incentives could

be relevant at trial, noting "[t]he relevance and admission of

such evidence is for the discretion of the trial court."     Neade,

193 Ill. 2d at 450.

     The defendants also rely on Bearden v. Hamby, 240 Ill. App.

3d 779, 608 N.E.2d 282 (1992).   In that case, this court reviewed

a contempt citation for refusal to produce tax returns the

plaintiff claimed were relevant to establish the "motive" for the

defendant physician's breach of the standard of care.    Bearden,

240 Ill. App. 3d at 783.   We found the tax returns irrelevant

because why the defendant physician breached the applicable

standard of care was not relevant to the determination of whether

the defendant physician breached the standard of care.   See

Bearden, 240 Ill. App. 3d at 783.

     Here, the plaintiff argued the financial incentive evidence

established the breach of the standard of care because spinal

surgeons should not perform and interpret discograms for their

potential surgical patients because the presence of financial

incentive, regardless of whether it actually motivated the

surgeon, destroys the guarantee of objectivity in the discogram.

Accordingly, the evidence of financial incentive directly

addressed whether Dr. Elias breached the standard of care, not

                                 14
No. 1-08-0265


why.    As such, we find Bearden inapposite.

       The defendants maintain that the surgical procedures were

indicated to treat the plaintiff's complaints of back pain and

that the discogram was the proper diagnostic test for Dr. Elias

to rely on in determining to proceed with the surgical

procedures.    However, the surgical procedures performed by Dr.

Elias were not indicated, in part because, prior to the surgery,

the plaintiff had no radicular pain, that is, pain radiating from

his back into his legs.     Moreover, the plaintiff presented the

testimony of Dr. Skaletsky to establish that it was a deviation

from the standard of care for Dr. Elias, as the potential

operating surgeon, to perform and interpret the discogram, which

would determine whether spinal surgery was necessary.

       The defendants then argue that testimony concerning Dr.

Elias's financial incentive was improperly injected into the

trial during Dr. Yeung's testimony.    On cross-examination, Dr.

Yeung was asked whether criticism existed in the medical

community regarding operating surgeons interpreting discograms

for potential surgical patients, specifically operating surgeons

who had a financial interest in the outcome of the discogram.

Dr. Yeung acknowledged that such criticism existed.    Dr. Yeung

acknowledged hearing physicians at medical seminars, including

Dr. Alexander Ghanayem of Loyola University Medical Center,

express their opinion that spinal surgeons should not perform and

interpret discograms for their potential surgical patients.

                                 15
No. 1-08-0265


     The plaintiff based his negligence claim that Dr. Elias

deviated from the standard of care in performing the IDET and

endoscopic procedures on Dr. Elias's performance and

interpretation of the discogram, the diagnostic tool for

determining whether the subsequent procedures were necessary.

The plaintiff argued that based on his symptoms, specifically his

lack of radicular pain, the discogram could not indicate that the

subsequent surgical procedures would relieve his pain.    The

evidence of financial incentive supported the plaintiff's claim

that the surgical procedures were unnecessary.   To refute the

plaintiff's allegations, the defendants argued the discogram

conclusively indicated the procedures were necessary, relying

primarily on Dr. Yeung's testimony.   In order to allow the jury

to adequately assess the parties' varying theories of what

occurred, the court allowed the financial incentive evidence.

     We conclude that the trial court did not abuse its

discretion in permitting the evidence of financial motive to be

introduced in a limited and specific manner to address the issue

of the defendants' compliance with the standard of care.

                     B. Motion for New Trial

                      1. Standard of Review

     We review a trial court's denial of a motion for new trial

based on the manifest weight of the evidence for an abuse of

discretion.



                               16
No. 1-08-0265


                           2. Discussion

     The defendants argue the verdict must be reversed because it

is against the manifest weight of the evidence.    The defendants

contend the insufficiency of the evidence required the trial

court to grant their posttrial motion for a new trial.

     A trial court should order a new trial if, after weighing

the evidence, the court determines that the verdict is contrary

to the manifest weight of the evidence.     Maple v. Gustafson, 151

Ill. 2d 445, 454, 603 N.E.2d 508 (1992). "'A verdict is against

the manifest weight of the evidence where the opposite conclusion

is clearly evident or where the findings of the jury are

unreasonable, arbitrary and not based upon any of the evidence.'"

Maple, 151 Ill. 2d at 454, quoting Villa v. Crown Cork & Seal

Co., 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969 (1990).    As a

reviewing court, we will not reverse the trial court's decision

with respect to a motion for a new trial unless the court abused

its discretion.   Maple, 151 Ill. 2d at 455.

     The defendants argue the jury's liability finding must be

overturned because the plaintiff failed to prove the standard of

care and proximate cause regarding Dr. Elias's performance of the

endoscopic discectomy and IDET procedure.    What the defendants

fail to recognize is that plaintiff was not claiming that Dr.

Elias negligently performed the endoscopic discectomy and IDET

procedure.   Rather, the performance of these procedures was in

and of itself negligent.   Based on the plaintiff's symptoms and

                                17
No. 1-08-0265


the discogram, which the plaintiff maintained could not have

possibly indicated surgery was necessary, the plaintiff's theory

was that Dr. Elias breached the standard of care by performing

unnecessary surgical procedures.     Regardless of whether those

procedures were properly performed, those unnecessary surgeries

resulted in injury to him in the form of radicular pain.

     The defendants maintain that the IDET procedure was

indicated by the discogram.   Therefore, Dr. Elias did not violate

the standard of care by performing the IDET procedure because it

was necessary.   The defendants rely on the testimony of the

plaintiff's orthopedic expert, Dr. Fossier, that "the IDET

procedure, at least theoretically, may have had a place," and

possibly "had a theoretical basis to help."     The defendants claim

because Dr. Fossier did not find use of the IDET procedure to be

a deviation from the standard of care, nor did he establish any

causal link between the IDET and the plaintiff's claimed injury,

the plaintiff failed to establish his claim of medical

negligence.

     The plaintiff's other expert, Dr. Skaletsky, testified the

IDET could not be indicated by the discogram and, therefore,

found its use constituted a deviation from the standard of care.

Dr. Skaletsky attributed the overall instability of the

plaintiff's lumbar spine and the creation of right radiculopathy,

in part, to Dr. Elias's performance of the IDET procedure on the

plaintiff.

                                18
No. 1-08-0265


     The defendants argue the expert testimony proves that

differing opinions regarding the treatment options available to

the plaintiff exist within the standard of care and, therefore,

Dr. Elias's choice of treatment could not be considered a

deviation of the standard of care merely because Dr. Skaletsky

disagreed with it.   See Schmitz, 368 Ill. App. 3d at 455.

     As we discussed above, the defendants' argument misconstrues

the plaintiff's negligence claim.    Whether Dr. Elias breached the

standard of care in performing the IDET procedure was not at

issue.   Rather, the issue was whether Dr. Elias's breach of the

standard of care in performing the discogram led to unnecessary

surgical procedures, an injury in and of itself, and the

plaintiff's radicular pain, which he claimed he did not

experience prior to the procedures.   Accordingly, any differences

between Dr. Fossier's and Dr. Skaletsky's opinions did not create

for the jury "the impossible task of choosing between conflicting

standards"; rather, they merely created a question of fact as to

whether the plaintiff's claimed injury of radicular pain was the

result of the IDET procedure, an issue properly resolved by the

jury.

     The jury's role is to resolve conflicts in the evidence,

determine the credibility of the witnesses and decide the weight

to be given each witness's testimony.    Maple, 151 Ill. 2d at 452.

As a reviewing court, it is not within our power to "usurp the

function of the jury and substitute [our] judgment on questions

                                19
No. 1-08-0265


of fact fairly submitted, tried, and determined from the evidence

which did not greatly preponderate either way."    Maple, 151 Ill.

2d at 452-53.

     The credibility determination of the witnesses was for the

jury to make and although each of the plaintiff's witnesses

offered a different conclusion regarding whether the IDET

procedure caused the plaintiff's radicular pain, we do not find

the jury's implied acceptance of Dr. Skaletsky's opinion, based

on its verdict in favor of the plaintiff, to be "'unreasonable,

arbitrary and not based upon any of the evidence.'"    Maple, 151

Ill. 2d at 454, quoting Villa, 202 Ill. App. 3d at 1089.

     Next, the defendants argue the plaintiff failed to establish

that Dr. Elias's performance of the surgical procedures

proximately caused the plaintiff injury.   The defendants claim

that because the known risks of lumbar spinal surgery, performed

within the standard of care, include a result of no improvement

in the patient's symptoms, spinal instability, and/or injury to

the nerve root or spinal cord, the plaintiff cannot establish a

causal link.

     The term "proximate cause" encompasses two distinct

requirements: cause in fact and legal cause.    Lee v. Chicago

Transit Authority, 152 Ill. 2d 432, 455, 605 N.E.2d 493 (1992).

The first requirement, cause in fact, is present "when there is a

reasonable certainty that a defendant's acts caused the injury or

damage."   Lee, 152 Ill. 2d at 455.   Legal cause is a question of

                                20
No. 1-08-0265


foreseeability.    "'[A] negligent act is a proximate cause of an

injury if the injury is of a type which a reasonable man would

see as a likely result of his conduct.'"    Lee, 152 Ill. 2d at

456, quoting Masotti v. Console, 195 Ill. App. 3d 838, 845, 552

N.E.2d 1292 (1990).    The foreseeability of radicular pain from

spinal surgery is not contested here.

     The plaintiff argues that under a "cause in fact" analysis,

he carried his burden of proof as to proximate cause by

establishing that Dr. Elias performed an unnecessary procedure

which caused an injury, regardless of whether that injury was a

known risk of the surgery.    Moreover, the plaintiff argues he

established a clear connection between the defendants' breach of

the standard of care and his injury through the expert testimony

of Dr. Skaletsky.    Dr. Skaletsky testified that the surgical

procedures "resulted in significant narrowing of the central

spinal canal as well as the lateral neuroforamina as well as

instability and slippage of vertebra."    Dr. Skaletsky concluded

the disc volume in two discs decreased as a result of the

surgical procedures and that the loss in disc volume caused the

plaintiff's pain and numbness in his right leg.    We agree that

the plaintiff offered sufficient evidence from which the jury

could reasonably find the element of proximate cause had been

satisfied.

     The defendants then argue the plaintiff failed to offer

proof of injury.    At trial, the plaintiff testified that after

                                 21
No. 1-08-0265


the surgery, he could not exercise, run, or sit in a vehicle for

an extended period of time.    He claimed he was unable to work as

a carpenter.    The defendants contend the plaintiff's testimony

did not support a finding that the procedures caused injury.      The

defendants maintain that as of the trial in September 2007, the

plaintiff had been working, postoperatively, for 4 1/2 years as a

union organizer for the Chicago Regional Carpenters.

Additionally, prior to surgery, the plaintiff took prescription

pain medicine; at trial, he testified he was using over-the-

counter pain medication.    Prior to surgery, the plaintiff was

unable to lift, walk, run or sit for any length of time.    The

defendants argue the physical limitations the plaintiff

experienced after the surgery are the same he experienced prior

and, therefore, the plaintiff did not establish an injury

causally linked to Dr. Elias's conduct.

     The plaintiff maintains that Dr. Elias's performance of the

unnecessary surgical procedures caused injury to the plaintiff in

the form of radicular pain into his right leg, which was not

present before the procedures.    The defendants argue that the

plaintiff had radicular pain into his right leg prior to

undergoing the surgical procedures.    However, the plaintiff

denied experiencing radicular pain at any time prior to the

procedures.    Dr. Yeung, the defendants' expert witness, conceded

that the radicular pain experienced by the plaintiff following

the surgery was caused or contributed to by the surgical

                                 22
No. 1-08-0265


procedures.

       Based on the evidence presented concerning the plaintiff's

injuries following the surgical procedures, at best the

defendants raised a factual dispute.    As such, this issue was

properly decided by the trier of fact.    Maple, 151 Ill. 2d at

452.    Because we will not substitute our judgment for that of the

trier of fact on issues of credibility and the weight to be given

any particular piece of evidence, we accept the jury's implied

conclusion, based on their verdict against the defendants, that

the plaintiff offered sufficient evidence to show injury.

       At trial, the jury resolved the matters the defendants raise

on appeal in favor of the plaintiff.    The jury's conclusion was

not arbitrary or unreasonable in light of the evidence before it.

Accordingly, the trial court properly determined that a new trial

was not justified because the jury's conclusion was not against

the manifest weight of the evidence.    The trial court did not

abuse its discretion in denying the defendants' motion for a new

trial.

                     C. Plaintiff's Cross-Appeal

       In his cross-appeal, the plaintiff contends that the trial

court abused its discretion in granting remittitur of his future

medical expenses.

       The jury returned a verdict in favor of the plaintiff in the

amount of $500,000, which included an award for future medical

expenses in the amount of $155,000.    The defendants filed a

                                 23
No. 1-08-0265


posttrial motion arguing, inter alia, that the award of future

medical expenses was not supported by the evidence at trial.    The

trial court granted in part and denied in part the portion of the

defendants' posttrial motion seeking remittitur, agreeing that

some of the future medical expenses were not adequately supported

by the evidence.    In reducing the plaintiff's award by $100,000,

the trial court recognized that an expert is not required to

provide specific amounts to support an award of future medical

expenses.    However, the court stated:

            "The problem that I am having is you have to have some

     evidence so the jury doesn't speculate or use their own

     personal knowledge which they're not supposed to do.    There

     must be something in the record from which a jury has a

     basis to give future medical numbers."

The plaintiff consented to the entry of the remittitur to avoid a

new trial on the issue of damages.

     Supreme Court Rule 366(b)(2)(ii) permits a party to raise

the issue of the remittitur on appeal only if the opposing party

brings an appeal from the judgment.    155 Ill. 2d R.

366(b)(2)(ii).    Here, the defendants initiated the appeal and,

therefore, the issue of remittitur is properly before us.

                        1. Standard of Review

     We review the trial court's ruling on a motion for a

remittitur for an abuse of discretion.    See Kindernay v.

Hillsboro Area Hospital, 366 Ill. App. 3d 559, 572, 851 N.E.2d

                                 24
No. 1-08-0265


866 (2006).

                            2. Discussion

       The damages at issue concern the cost of a future spinal

fusion surgery.    In his deposition testimony, Dr. Gutierrez

opined that the plaintiff would need to undergo a lumbar fusion

in order to stabilize his spine and that the cost for such a

procedure would be $55,000.    Dr. Gutierrez further stated that in

addition to the surgical fee, the plaintiff would incur expenses

for a one week stay in the hospital following the spine fusion,

as well as charges for radiology, anesthesiology and physical

therapy services.    The plaintiff argues Dr. Gutierrez's testimony

was sufficient to support the jury's award of $100,000 for future

medical expenses not specifically itemized.

       In Richardson v. Chapman, 175 Ill. 2d 98, 676 N.E.2d 621

(1997), our supreme court observed that, "[t]he determination of

damages is a question reserved to the trier of fact, and a

reviewing court will not lightly substitute its opinion for the

judgment rendered in the trial court."      Richardson, 175 Ill. 2d

at 113.    "A verdict will not be set aside by a court unless it is

so excessive that it indicates that the jury was moved by passion

or prejudice or unless it exceeds the necessarily flexible

limits of fair and reasonable compensation or is so large that it

shocks the judicial conscience."      Kindernay, 366 Ill. App. 3d at

572.    Where the jury's award falls within the flexible range of

conclusions reasonably supported by the evidence, the court

                                 25
No. 1-08-0265


should not grant a remittitur.    Kindernay, 366 Ill. App. 3d at

572.

       The defendants cite Kinzinger v. Tull, 329 Ill. App. 3d

1119, 770 N.E.2d 246 (2002).   In Kinzinger, the Fourth District

reduced a jury's award of future medical expenses because it was

"over three times the amount established in the trial court and

not supported by the evidence."    Kinzinger v. Tull, 329 Ill. App.

3d at 1130.    Specific amounts of past and future medical expenses

were introduced into evidence.    Based on the evidence presented

at trial, the appellate court found the jury had no basis to

award an amount greater than the specific amounts introduced into

evidence.    Kinzinger, 329 Ill. App. 3d at 1130.   Nonetheless, the

court in Kinzinger recognized that "the jury enjoys a certain

degree of latitude in awarding compensation for medical costs

that, as shown by the evidence, are likely to arise in the future

but are not specifically itemized in the evidence."     Kinzinger,

329 Ill. App. 3d at 1130, citing Richardson, 175 Ill. 2d at 112.

       In Richardson, the supreme court reduced a $1.5 million jury

award for future medical expenses by $1 million.    The court

concluded that the adjustment allowed the plaintiff recovery for

expected expenses for which no specific estimates were

introduced, but was not so large as to be excessive in light of

the trial testimony.    Richardson, 175 Ill. 2d at 112-13.

       In light of Richardson, we find the trial court abused its

discretion by reducing the jury's award by $100,000 for future

                                  26
No. 1-08-0265


medical expenses not specifically itemized.   Dr. Gutierrez's

deposition testimony supported an award of future medical

expenses over the $55,000 attributed to the surgical fee.    Dr.

Gutierrez opined the plaintiff would incur expenses for a one-

week stay in the hospital following the surgery, as well as

charges for radiology, anesthesiology and physical therapy

services.   We find nothing to suggest the jury's award of

$100,000 to cover these additional charges resulted from passion

or prejudice, or that it exceeded the necessarily flexible limits

of fair and reasonable compensation.   See Kindernay, 366 Ill.

App. 3d at 572.   Accordingly, it was an abuse of discretion for

the trial court to subject the jury's award to remittitur for

$100,000.

                           III. CONCLUSION

     The jury's verdict as to liability is affirmed, and the

cause is remanded.   The trial court is directed to vacate the

remittitur in the amount of $100,000 and enter judgment in favor

of the plaintiff in the amount awarded by the jury.

     Affirmed in part; cause remanded with directions.

     PATTI, J., concurs.

     GARCIA, J., dissents.

     JUSTICE GARCIA, dissenting:

     I am persuaded by Dr. Elias's argument that the circuit

court deviated from the Illinois Supreme Court's holding in Neade

v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496 (2000), by admitting

                                 27
No. 1-08-0265


evidence, according to the plaintiff's own brief, that Dr. Elias

had "a financial incentive for him to interpret the results of

the discogram as an indication for the subsequent spinal surgery

to be performed by him."   (Emphasis added.)   More fundamentally,

I question the legitimacy of the plaintiff's theory that Dr.

Elias violated the standard of care for an orthopedic surgeon by

"personally performing the discogram on Mr. Martinez" when Dr.

Elias also performed the endoscopic discectomy and the IDET

procedure, both of which he determined were medically warranted

based on the results of the discogram.   I fault the plaintiff's

theory because no case is presented that permits the performance

of a medical procedure to be characterized as violating the

applicable standard of care without faulting the performance of

the medical professional in carrying out the medical procedure

itself.   The plaintiff deems it malpractice whenever an

orthopedic surgeon performs a discogram on a patient when the

same surgeon may perform additional surgery, as the diagnostic

results of the discogram dictate, without regard to whether the

discogram itself was properly performed.   The plaintiff's theory

suggests that an orthopedic surgeon has a duty not to perform

both the discogram and any subsequent spinal surgery because

there is a financial incentive for the orthopedic surgeon to

interpret the results of the discogram in favor of subsequent

spinal surgery.   I believe such a theory is the equivalent of a

fiduciary duty claim in the context of a medical malpractice

                                28
No. 1-08-0265


suit, which our supreme court disavowed.     Neade, 193 Ill. 2d at

450 ("We decline to recognize a new cause of action for breach of

fiduciary duty against a physician for the physician's failure to

disclose [financial] incentives ***").

                        Medical Negligence

     "To sustain an action for medical negligence, plaintiff must

show: (1) the standard of care in the medical community by which

the physician's treatment was measured; (2) that the physician

deviated from the standard of care; and (3) that a resulting

injury was proximately caused by the deviation from the standard

of care."   Purtill v. Hess, 111 Ill. 2d 229, 241-42, 489 N.E.2d

867 (1986).   I believe the evidence falls short in this case on

the key elements of the standard of care and proximate cause.

     Even accepting the plaintiff's theory that the endoscopic

discectomy and the IDET were medically unnecessary and that the

performance of each injured the plaintiff, that Dr. Elias

performed the discogram, rather than another physician, says

little about whether the endoscopic discectomy or the IDET should

have been performed where the plaintiff's evidence was that there

is a high incidence of false positives with the discogram.

Stated differently, given the high incidence of false positives

in the discogram procedure, proximate cause between Dr. Elias's

performance of the discogram and the injury the plaintiff

allegedly suffered by the performance of the endoscopic

discectomy and the IDET is at best tenuous.

                                29
No. 1-08-0265


     Even if an independent orthopedic surgeon had performed the

discogram, based on the purported high incidence of false

positives, that medical professional might well have determined

that the endoscopic discectomy and the IDET were medically

warranted.   If the endoscopic discectomy and the IDET were

determined to be medically warranted based on the results of an

independently performed discogram, it necessarily follows that

there is no nexus between Dr. Elias performing the discogram and

his performance of the endoscopic discectomy and the IDET on the

plaintiff, which he found medically warranted based on the

results of the discogram.   See Aguilera v. Mt. Sinai Hospital

Medical Center, 293 Ill. App. 3d 967, 976, 691 N.E.2d 1 (1997)

(no medical link between the alleged negligence in the delay in

performing a CT scan and any neurosurgery, which might have been

indicated, when the damage to the decedent's brain was beyond

surgical help); Scardina v. Nam, 333 Ill. App. 3d 260, 271, 775

N.E.2d 16 (2002) (alleged failure to properly read the

radiological film did not impact surgeon's examination of the

plaintiff's colon during the subsequent surgery).

     Apart from proximate cause, I also question the standard of

care evidence.   The standard of care is the relevant inquiry by

which we judge a physician's actions in a medical negligence

case.   Under a standard of care analysis, a defendant will be

held to "the reasonable skill which a physician in good standing

in the community would use in a similar case."   Newell v. Corres,

                                30
No. 1-08-0265


125 Ill. App. 3d 1087, 1094, 466 N.E.2d 1085 (1984).    Only if a

physician deviates from the standard of care, by demonstrating

less than reasonable skill, can the physician be held liable for

medical negligence.

     Here, the jury was instructed that as to this claim by the

plaintiff, Dr. Elias was negligent in that he "relied on a

discogram that he personally performed."    Yet, the skill of Dr.

Elias in performing the discogram was never questioned.    No

medical expert testified that Dr. Elias performed the discogram

with less than "the reasonable skill which a physician in good

standing in the community would use in a similar case."    Instead,

Dr. Elias was faulted for performing the discogram "personally."

This, I submit, was at best a "judgment" call on the part of Dr.

Elias, with which the plaintiff's experts disagreed.2

     I cannot agree that the standard of care in this case

directs that a "treating physician and a potentially operating

surgeon [cannot] be the same person performing the discogram in a

patient" as Dr. Skaletsky testified.    Whether the "treating


     2
         Even the language used by Dr. Skaletsky to describe the

controversy within the medical community over the diagnostic role

of discograms suggests it is a matter of judgment.    The discogram

is controversial "[b]ecause the reliance upon a purely subjective

response is considered by many inappropriate in its usage to

direct a potential surgical procedure ***."    Emphasis added.

                                 31
No. 1-08-0265


physician and a potentially operating surgeon" are the same

person says absolutely nothing about "the reasonable skill which

a physician in good standing in the community would use in a

similar case."   Newell, 125 Ill. App. 3d at 1094.     The reason for

my categorical statement is evident: Had Dr. Skaletsky himself

performed the discogram on Mr. Martinez, the diagnostic result of

the discogram may very well have been the same as the result Dr.

Elias reached.   While we do not know, I submit, the record

evidence was insufficient to allow the jury to conclude that the

standard of care required someone other than Dr. Elias perform

the discogram when it cannot be denied that the same result might

have been obtained had the discogram been performed by another

physician.   The plaintiff's experts' opinions to the contrary

amounted to no more than their own personal preference for having

an independent orthopedic surgeon perform the discogram.

          "It is insufficient for plaintiff *** merely

          to present testimony of another physician

          that he would have acted differently from the

          defendant, since medicine is not an exact

          science.   It is rather a profession which

          involves the exercise of professional

          judgment within the framework of established

          procedures.   Differences in opinion are

          consistent with the exercise of due care."

          Walski v. Tiesenga, 72 Ill. 2d 249, 259, 381

                                32
No. 1-08-0265


          N.E.2d 279 (1978).

I submit the evidence regarding the standard of care is lacking

where the plaintiff's claim amounts to no more than Dr. Elias

"personally performed" the discogram.    I cannot agree that this

medical malpractice theory put forth by the plaintiff was a

legitimate means of calling into question Dr. Elias's medical

skills.

     Because I find that the plaintiff's theory of malpractice as

to Dr. Elias' performance of the discogram amounts to no more

than a fiduciary duty claim, the presentation of this claim to

the jury is reversible error.   Neade, 193 Ill. 2d at 450 ("We

decline to recognize a new cause of action for breach of

fiduciary duty against a physician for the physician's failure to

disclose [financial] incentives ***").   I reject the plaintiff's

claim that on the record evidence before us, the standard of care

required someone other than Dr. Elias perform the discogram.     I

find the evidence of the proximate cause element of this claim

that Dr. Elias committed malpractice lacking.   The plaintiff can

make no showing of any injury proximately resulting from Dr.

Elias's performance of the discogram because the plaintiff is

unable to demonstrate that the discogram result would have

differed had Dr. Skaletsky or some other orthopedic surgeon

performed the discogram instead.

                 Evidence of Financial Incentive

     In his brief, the plaintiff seeks to support the

                                33
No. 1-08-0265


introduction of "financial interest" evidence because "the

introduction of this evidence was limited and specific to the

issue of the defendants' compliance with the standard of care."

The plaintiff claims, "the evidence of financial incentive goes

to the heart of the breach of the standard of care by the

physician."   I note no authority is cited for the introduction of

such evidence even where its purpose is "limited and specific."

     The plaintiff seeks to distinguish the decision in Bearden

v. Hamby, 240 Ill. App. 3d 779, 608 N.E.2d 282 (1992), with his

claim that the plaintiff in Bearden sought the defendant doctor's

tax returns "to establish the reason why the defendant physician

breached the standard of care" (emphasis in brief), claiming the

financial incentive evidence in his case goes to "how" the

defendant breached the standard of care.     I fail to see the

distinction between "how" and "why" evidence as to a claimed

breach of the standard of care; nor am I persuaded that the jury

would understand the difference.     I submit the distinction

between how and why is illusory in the absence of any authority

that establishes such "legal" concepts in Illinois jurisprudence.

In any event, our supreme court has made clear that only one

reason is available to introduce financial incentive evidence--to

demonstrate possible bias on the part of the physician, which is

possible only during cross-examination of the physician.        Neade,

193 Ill. 2d at 450 ("capitation fund" evidence relevant only for

impeachment purposes).

                                34
No. 1-08-0265


     In an effort to place the financial incentive evidence

within the Neade ruling that such evidence may be admissible to

demonstrate bias, the plaintiff claims his contention was "that

the testimony of Dr. Elias that his performance and

interpretation of the discogram supported his recommendation for

surgery goes to his interest and bias for performing and

interpreting the discogram in that manner.   The testimony of

plaintiff's experts was that Dr. Elias deviated from the standard

of care by performing and interpreting the discogram precisely

because he had a financial interest in performing the ultimate

surgery."   In Neade, the "financial incentive arrangement" was

offered as an explanation for the defendant doctor's decision not

to order a second opinion.   Neade, 193 Ill. 2d at 444.    The

allegation was that the defendant doctor failed to order the

second opinion because the defendant doctor would pocket funds

not used to cover such referrals and, thus, had a financial

incentive to put his own interest above the patient's.    Unlike in

Neade, I see no connection between Dr. Elias personally

performing the discogram and the suggestion that the results of

the discogram might be influenced because Dr. Elias would be paid

for performing any additional surgery.   I submit the concept that

a doctor is remunerated for medical procedures conducted is

grossly distorted when the remuneration itself is introduced as

evidence of a "potential appearance of a vested interest from a

surgical as well as financial outcome of the operating surgeon

                                35
No. 1-08-0265


being the same one to perform the study" as Dr. Skaletsky

testified to support the plaintiff's claim of an alleged breach

of the standard of care.

     In other words, I reject the plaintiff's implied claim that

the financial incentive evidence, which the supreme court held

may be admitted to demonstrate bias in Neade, is equivalent to

the astonishingly obvious concept that Dr. Elias would be paid

for the performance of the endoscopic discectomy and the IDET

procedures.   In Neade, the plaintiff alleged that the defendant

doctor was improperly influenced by the contract he had with the

HMO that gave the doctor an incentive to reject outside test

referrals where the doctor would receive 60% of any of the

allocated funds not expended for such outside test referrals.

Neade, 193 Ill. 2d at 437-38.   That is a far cry from the

plaintiff's claim here that Dr. Elias personally performing the

discogram gave rise to a financial incentive because Dr. Elias

would be paid for any subsequent surgeries if he determined that

the endoscopic discectomy and the IDET procedures were medically

warranted based on the results of the discogram.

     The plaintiff's claim that the "plaintiff's experts'

opinions could not logically have been presented to the jury

without an explanation as to the reason that interpretation of

the discogram by the operating surgeon falls below the standard

of care" simply seeks to prove too much.   Whether the explanation

gave logic to the experts' opinions, I submit the opinions that

                                36
No. 1-08-0265


Dr. Elias should not have personally performed the discogram

should not have been admitted at all.   The experts' opinions

amounted to no more than "personal preferences" for having an

independent orthopedic surgeon perform the discogram.   See

Walski, 72 Ill. 2d at 259, 381 N.E.2d 279 (1978) ("It is

insufficient for plaintiff *** merely to present testimony of

another physician that he would have acted differently from the

defendant, since medicine is not an exact science").

     The circuit court's admission of the plaintiff's evidence

that Dr. Elias personally performed the discogram and then was

remunerated for the endoscopic discectomy and the IDET procedure

that he determined were medically warranted by the results of the

discogram, under the guise of a deviation of the standard of care

as presenting some sort of improper financial motivation, was

reversible error under Neade.   I would remand for a new trial.

     I dissent.




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