                                               First Division
                                               June 14, 2010


No. 1-07-1128



JOYCE ROBINSON, as Special                )    Appeal from the
Administrator of the Estate of            )    Circuit Court of
Wanda Boone, Deceased,                    )    Cook County
                                          )
          Plaintiff-Appellant,            )
                                          )
                                          )
     v.                                   )    No. 04 L 13958
                                          )
                                          )
JAMES F. BOFFA,                           )    Honorable
                                          )    Donald J. O'Brien
          Defendant-Appellee.             )    Judge Presiding


     PRESIDING JUSTICE HALL delivered the opinion of the court:

     This case arises out of a medical malpractice action brought

by plaintiff, Joyce Robinson, as special administrator of the

estate of her deceased mother, Ms. Wanda Boone, against defendant

surgeon, Dr. James F. Boffa.    Ms. Boone had just turned 77 at the

time of her death.

     Ms. Boone was admitted to the hospital after complaining of

weakness and anemia.   Because she suffered from iron deficiency

anemia, an exploratory colonoscopy was recommended.   On February

15, 2000, Dr. Luis Nasiff, a board-certified gastroenterologist,

performed the colonoscopy on Ms. Boone.   The results showed a

cancerous mass in her colon.    Ms. Boone saw Dr. Boffa to have the

cancerous tumor removed.

     On February 18, 2000, Dr. Boffa removed a tissue mass from

Ms. Boone's colon, but not the cancerous tumor.   Five days later,

Ms. Boone underwent a second surgery to remove the cancerous
No. 1-07-1128

tumor.   Ms. Boone died on March 25, 2000.

     Ms. Boone's estate filed a negligence action against Dr.

Boffa claiming that he violated the applicable standard of care

by failing to remove the cancerous tumor during the first surgery

and by performing the second surgery too soon after the first

surgery.   Plaintiff contended the stress of the second surgery

caused Ms. Boone's death.

     Dr. Boffa argued that his failure to remove the cancerous

tumor during the first surgery was not negligent because he was

misled by the colonoscopy report as to the location of the tumor.

     Plaintiff appeals from the verdict and judgment entered

following a jury trial and from the trial court's subsequent

order denying her posttrial motion.

     Plaintiff's overarching contention on appeal is that the

trial court erred in instructing the jury with the long forms of

Illinois Pattern Jury Instructions Civil No. 12.04 and No. 12.05

(3d ed. 1989) (hereinafter IPI Civil 3d), on proximate cause.

The long form of IPI Civil 3d No. 12.04 tendered by the trial

court read:

           "More than one person may be to blame for causing an

     injury.    If you decide that the defendant was negligent and

     that his negligence was a proximate cause of injury to the

     plaintiff, it is not a defense that some third person who is

     not a party to the suit may also have been to blame.

           However, if you decide that the sole proximate cause of


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No. 1-07-1128

     injury to the plaintiff was the conduct of some person other

     than the defendant, then your verdict should be for the

     defendant."

     The long form of IPI Civil 3d No. 12.05 tendered by the

trial court stated:

          "If you decide that the defendant was negligent and

     that his negligence was a proximate cause of injury to the

     plaintiff, it is not a defense that something else may also

     have been a cause of the injury.

          However, if you decide that the sole proximate cause of

     injury to the plaintiff was something other than the conduct

     of the defendant, then your verdict should be for the

     defendant."

     Plaintiff contends on appeal, as she did below, that the

trial court erred in tendering the second paragraph of each of

the instructions.   The notes for each instruction indicate that

the second paragraph should be given only where there is evidence

tending to show that the sole proximate cause of the occurrence

was a third person (IPI Civil 3d No. 12.04), or something other

than the conduct of the defendant (IPI Civil 3d No. 12.05). IPI

Civil 3d Nos. 12.04, 12.05, Notes on Use.

     Prior to trial, defendant sought to admit evidence that the

sole proximate cause of the decedent's death was someone other

than Dr. Boffa or something other than the second colon surgery

decedent underwent.   Specifically, defendant sought to admit


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evidence that the proximate cause of the decedent's death was

multisystem failure secondary to congestive heart failure,

diabetes, and renal failure; and separately, Dr. Nasiff's

negligence in failing to precisely pinpoint the location of the

cancerous tumor in his colonoscopy report.    Defense counsel

claimed the decedent was required to undergo a second colon

surgery because the colonoscopy report misled Dr. Boffa as to the

precise location of the tumor during the first surgery.

     Plaintiff moved in limine to bar such evidence.    The trial

court denied the motion.   The jury ultimately returned a verdict

for defendant.   The trial court denied plaintiff's posttrial

motion and this appeal followed.   For the reasons that follow, we

affirm.

                             ANALYSIS

     In a medical malpractice action, the plaintiff must prove

that the defendant's breach of the applicable standard of care

proximately caused the resulting injury. Purtill v. Hess, 111

Ill. 2d 229, 241-42, 489 N.E.2d 867 (1986).    Proximate cause is

ordinarily an issue of fact for the jury to decide unless the

facts are undisputed and reasonable minds could not differ as to

the inferences to be drawn from those facts. Kimber v. City of

Warrenville, 248 Ill. App. 3d 361, 367, 617 N.E.2d 1263 (1993).

     Plaintiff contends the trial court erred in admitting

evidence and argument that Dr. Nasiff's failure to precisely

pinpoint the location of the tumor in his colonoscopy report was


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No. 1-07-1128

a proximate cause of the decedent's death.   Plaintiff maintains

there was no evidentiary basis for such an argument or for the

trial court to instruct the jury with the second paragraph of IPI

Civil 3d No. 12.04, which followed from that argument.

     The admission of evidence is within the sound discretion of

the trial court, whose ruling will not be disturbed absent an

abuse of discretion. Gill v. Foster, 157 Ill. 2d 304, 312-13, 626

N.E.2d 190 (1993).   In regard to jury instruction, a litigant has

the right to have the jury clearly and fairly instructed upon

each theory that was supported by the evidence; however, it is

error to give an instruction not based on the evidence. Leonardi

v. Loyola University of Chicago, 168 Ill. 2d 83, 100, 658 N.E.2d

450 (1995).

     Plaintiff's theory of the case was that her mother died from

the stress of a second surgery on her colon.   Plaintiff claimed

her mother would not have required the second surgery if Dr.

Boffa had not been negligent in failing to locate and remove a

nickel-size cancerous tumor from her mother's colon during the

first surgery.

     Plaintiff also maintained the doctor was negligent in

performing the second surgery only five days after the first

surgery.   Plaintiff asserted that the second surgery was

performed too close in time to the first surgery.   Plaintiff

argued the decedent had just begun to recover from the first

surgery when she underwent the second surgery.


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No. 1-07-1128

     Plaintiff acknowledges that Dr. Nasiff reported the tumor's

location to be approximately 20 centimeters (about 8 inches) away

from its actual location in the decedent's colon, but contends

that this reported location was only an estimate because of the

physical structure of the colon, which is similar to an accordion

with various twists and bends.   Plaintiff maintains that even if

Dr. Nasiff's colonoscopy report initially misled Dr. Boffa as to

the precise location of the tumor, this should not have made any

substantive difference in the surgery.

     Plaintiff claims that once Dr. Boffa grossly examined

(examined with the naked eye) the area of the colon described in

the colonoscopy report and saw that the lining of the colon

(mucosa) was normal, he then knew or was obligated by the

applicable standard of care to know that the tissue mass he

removed and suspected was cancerous was in fact benign.

Therefore, he was required to continue the surgery until he

located the cancerous tumor.

     Plaintiff asserts the second surgery would have been

unnecessary if during the first surgery Dr. Boffa had taken a

frozen section of the tissue mass he believed was cancerous and

had it analyzed to determine if it was in fact cancerous.    In the

alternative, plaintiff maintains the doctor could have performed

an intraoperative endoscopy to locate and identify the lesion.

     Plaintiff argues that if Dr. Boffa had followed either

procedure during the first surgery, he would have discovered that


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No. 1-07-1128

the tissue mass he removed, and initially believed was malignant,

was in fact nonmalignant, thereby necessitating that he continue

the surgery until he located the cancerous tumor.   Plaintiff

maintains that Dr. Boffa's failure in all of these regards

amounted to a deviation from the applicable standard of care.

     Plaintiff contends that Dr. Nasiff's alleged negligence in

regard to the colonoscopy report was not a legal cause of the

decedent's death.   We agree.

     Dr. Allesandro Fichera, a board-certified colorectal

surgeon, and Dr. Nasiff both testified that the standard of care

required Dr. Boffa to understand and appreciate that Dr. Nasiff's

measurement of the location of the tumor was an estimate.    In the

instant case, even if we were to conclude, which we do not, that

Dr. Nasiff's failure to more accurately pinpoint the location of

the tumor in his colonoscopy report was an actual cause of the

decedent's death, this would not establish that his conduct

proximately caused her death.   It would still have to be shown

that Dr. Nasiff's conduct was a legal cause of the decedent's

death.

     "A defendant's acts are a legal cause only if they are 'so

closely tied to the plaintiff's injury that he should be held

legally responsible for it. ' " Simmons v. Garces, 198 Ill. 2d

541, 558, 763 N.E.2d 720 (2002), quoting McCraw v. Cegielski, 287

Ill. App. 3d 871, 873, 680 N.E.2d 394 (1996).   A determination as

to legal cause is " ' a policy decision that limits how far a


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No. 1-07-1128

defendant's legal responsibility should be extended for conduct

that, in fact, caused harm. ' " Simmons, 198 Ill. 2d at 558,

quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455,

605 N.E.2d 493 (1992).

     Legal cause is essentially a question of foreseeability.

Lee, 152 Ill. 2d at 455.   To establish legal cause, the injury

must be foreseeable as the type of harm that a reasonable person

would expect to see as a likely result of his or her conduct.

Lee, 152 Ill. 2d at 455.

     In this case, even if Dr. Nasiff could have reasonably

foreseen that a surgeon would rely on a colonoscopy report to

locate a cancerous lesion, we do not believe that the doctor

could have reasonably foreseen that a surgeon would rely on the

colonoscopy report to conclusively determine if a suspected

tissue mass was in fact cancerous.    Dr. Boffa's subsequent

failure to conclusively determine if the suspected tissue mass

was in fact cancerous was an unforeseen intervening omission that

broke the chain of causation between Dr. Nasiff's alleged

negligence and the decedent's death.

     It is well settled that where the acts of a third person

intervene between the defendant's conduct and the plaintiff's

injury, liability turns upon whether the intervening act or

omission was a foreseeable consequence of the situation created

by the defendant's negligence. See, e.g., Bentley v. Saunemin

Township, 83 Ill. 2d 10, 15, 413 N.E.2d 1242 (1980) ("[t]he


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No. 1-07-1128

negligence of a defendant will not constitute a proximate cause

of a plaintiff's injuries if some intervening act supersedes the

defendant's negligence, but if the defendant could reasonably

foresee the intervening act, that act will not relieve the

defendant of liability").

     Even if Dr. Nasiff's colonoscopy report initially misled Dr.

Boffa as to the precise location of the tumor, Dr. Boffa had an

independent duty and responsibility to act on his own knowledge

to conclusively determine if the suspected tissue mass was

cancerous.   We do not believe Dr. Nasiff could have reasonably

foreseen that a surgeon would rely on a colonoscopy report to

conclusively determine whether a suspected tissue mass was in

fact cancerous.   As a result, Dr. Nasiff's alleged negligence

could not have been a proximate cause of the decedent's death.

See, e.g., Thompson v. County of Cook, 154 Ill. 2d 374, 383, 609

N.E.2d 290 (1993) ("proximate cause is *** absent where the

independent acts of a third person break the causal connection

between the alleged original wrong and the injury").

     Having reached this conclusion, we find that the trial court

erred in tendering the second paragraph of IPI Civil 3d No.

12.04, because there was no evidentiary foundation to support the

gastroenterologist, Dr. Nasiff, as the sole proximate cause of

the decedent's death. See, e.g., Freeman v. Petroff, 275 Ill.

App. 3d 904, 915-16, 656 N.E.2d 453 (1995) (trial court erred in

giving jury instruction containing second paragraph of IPI Civil


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No. 1-07-1128

3d No. 12.04, where there was insufficient evidentiary basis to

support giving instruction), overruled on other grounds by

McDonnell v. McPartlin, 192 Ill. 2d 505, 516, 736 N.E.2d 1074

(2000).   While we recognize this error, plaintiff must still show

she was prejudiced by the instructional error.

     Jury instructions should be viewed as a whole, and

reversible error occurs only when serious prejudice to the

complaining party's right to fair trial has been proven.

Burlington Northern & Santa Fe Ry. Co. v. ABC-NACO, 389 Ill. App.

3d 691, 716, 906 N.E.2d 83 (2009).    "A reviewing court ordinarily

will not reverse a trial court for giving faulty instructions

unless they clearly misled the jury and resulted in prejudice to

the appellant." Schultz v. Northeast Illinois Regional Commuter

R.R. Corp., 201 Ill. 2d 260, 274, 775 N.E.2d 964 (2002).

     Plaintiff has not established that she was prejudiced by the

trial court's error in tendering the second paragraph of IPI

Civil 3d No. 12.04, because there existed other defense theories

upon which the jury could have determined that Dr. Boffa was not

liable for the decedent's death.   Under the two-issue rule, a

general jury verdict will not be disturbed on review if the case

involved two or more causes of action or defenses and there was

sufficient evidence to support at least one of the issues or

defenses presented to the jury free from error. See Cole v. Raut,

378 S.C. 398, 406-07, 663 S.E.2d 30, 35 (2008); see also Grenitz

v. Tomlian, 858 So. 2d 999, 1001 (Fla. 2003), quoting Tomlian v.


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No. 1-07-1128

Grenitz, 782 So. 2d 905, 906 (Fla. App. 2001) ("'where two issues

are submitted to a jury, only one of which is infected with

error, the appellate court will assume the jury found for the

prevailing party on the issue which was error-free, unless it can

be determined from the form of verdict that the error was

prejudicial'").

     "When a general verdict for the plaintiff is on review, the

rule is applied by focusing on the causes of action ***." Barth

v. Khubani, 748 So. 2d 260, 261 (Fla. 1999); see also Moore v.

Jewel Tea Co., 46 Ill. 2d 288, 294, 263 N.E.2d 103 (1970) ("where

several causes of action are charged and a general verdict

results, the verdict will be sustained if there are one or more

good causes of action or counts to support it").

     "On the other hand, when the jury returns a general verdict

for the defendant, the 'two issue rule' is applied by focusing on

the defenses ***." Barth, 748 So. 2d at 261-62.    Thus, "where two

or more defense theories are presented to the jury and it returns

a verdict for the defense, an appellate claim of error as to one

defense theory will not result in reversal since the verdict may

stand based on another theory." Barth, 748 So. 2d at 262.

     In the instant case, defense counsel asserted two proximate

cause defenses.    First, the decedent's preexisting health

problems, which included congestive heart failure, diabetes, and

renal failure.    Dr. Boffa opined that the decedent died from

multisystem organ failure beginning with the decedent's impaired


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No. 1-07-1128

kidney function, which affected her heart and lungs.

     And second, the failure of gastroenterologist Dr. Nasiff to

precisely pinpoint the location of the tumor in his colonoscopy

report.   Defense counsel contended the decedent was required to

undergo a second colon surgery because the colonoscopy report

misled Dr. Boffa as to the precise location of the tumor during

the first surgery.

     Because the jury rendered a general verdict for defendant

and could have relied upon the first proximate cause defense to

find no liability and because there was ample evidence supporting

this defense, we cannot say that the plaintiff was prejudiced by

the trial court's error in tendering the second paragraph of IPI

Civil 3d No. 12.04.

     Plaintiff finally contends the trial court erred in

admitting evidence and argument that the decedent's preexisting

medical conditions were a proximate cause of her death.

Plaintiff maintains there was no evidentiary basis for such an

argument or for the trial court to instruct the jury with the

second paragraph of IPI Civil 3d No. 12.05 which followed from

that argument.

     Plaintiff argues that the only witness to connect the

decedent's preexisting medical conditions to her death was Dr.

Boffa, who testified that the decedent died from multisystem

organ failure beginning with the decedent's impaired kidney

function.   Plaintiff claims that other than Dr. Boffa's "limited


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No. 1-07-1128

causation evidence," nothing else connected the decedent's

preexisting medical conditions to her death and therefore any

evidence and argument about the preexisting medical conditions

should have been barred.

     Plaintiff argues "it is not enough to simply throw out a

medical condition and allow the jury to determine whether there

is a causal relationship between that condition and the claimed

injury."   Again, we must disagree with plaintiff.

     The element of proximate cause is an element of the

plaintiff's case. Yoder v. Ferguson, 381 Ill. App. 3d 353, 384,

885 N.E.2d 1060 (2008).    In a medical malpractice action, the

plaintiff bears the burden of proving that the defendant's breach

of the applicable standard of care proximately caused the

injuries at issue. Reardon v. Bonutti Orthopaedic Services, Ltd.,

316 Ill. App. 3d 699, 710, 737 N.E.2d 309 (2000).

     The defendant is not required to plead lack of proximate

cause as an affirmative defense. Leonardi, 168 Ill. 2d at 93-94.

However, "if there is evidence that negates causation, a

defendant should show it." Leonardi, 168 Ill. 2d at 94.     A

defendant has the right to rebut evidence tending to show that

his acts are negligent and a proximate cause of the plaintiff's

injuries and he has the related right to establish that some

other causative factor was the sole proximate cause of the

injuries and, assuming some competent evidence is presented, to

have the jury instructed on this theory. McDonnell v. McPartlin,


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No. 1-07-1128

192 Ill. 2d 505, 521, 736 N.E.2d 1074 (2000).

     In the instant case, defense counsel presented competent

evidence through Dr. Boffa that the sole proximate cause of the

decedent's death was some other causative factor, namely, the

decedent's preexisting medical condition.   Plaintiff counters

that even if Dr. Boffa's testimony connected the decedent's

preexisting medical condition to her death, this connection was

severed by the doctor's subsequent "judicial admission" that he

could not rule out the second colon surgery as the cause of the

decedent's death.   We must reject plaintiff's contention.

     We agree with the trial court that Dr. Boffa's admission

concerning the second surgery went to the weight of his prior

testimony concerning the decedent's preexisting medical condition

and not to its admissibility. See, e.g., Moller v. Lipov, 368

Ill. App. 3d 333, 344, 856 N.E.2d 664 (2006).   In view of the

evidence adduced at trial, we find that the trial court did not

err in tendering the second paragraph of IPI Civil 3d No. 12.05.

     Accordingly, for the reasons set forth above, the judgment

of the circuit court of Cook County is affirmed.

     Affirmed.

     PATTI, J., concurs.

JUSTICE GARCIA, specially concurring:

     I have a fundamental disagreement with the majority's

application of the two-issue rule.    "Under the two-issue rule, a

general verdict will not be disturbed if the case involved two or


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No. 1-07-1128

more causes of action or defenses and there was sufficient

evidence to support at least on of the issues or defenses

presented to the jury free from error. [Citation.]"   Slip op. at

10.   The majority precedes the foregoing statement with a claim

that the "[p]laintiff has not established that she was prejudiced

by the trial court's error in tendering the second paragraph of

IPI Civil 3d No. 12.04, because there existed other defense

theories upon which the jury could have determined that Dr. Boffa

was not liable for the decedent's death."   Slip op. at 10.   It is

an oversimplification to link the two-issue rule with the

plaintiff's inability to show prejudice.

      The two-issue rule precludes review of a general verdict not

because the plaintiff is unable to show prejudice based on an

improper instruction.    Rather, the jury's general verdict is not

subject to review because "the basis for the verdict" is

unknowable in the absence of a special interrogatory.    Strino v.

Premier Healthcare Associates, P.C., 365 Ill. App. 3d 895, 904,

850 N.E.2d 221 (2006).   Stated differently, the two-issue rule

forecloses review of a general verdict in favor of a defendant

because "[t]he general verdict *** creates a presumption that the

jury found in favor of [the defendant] on every defense raised."

Lazenby v. Mark's Construction, Inc., 236 Ill. 2d 83, 102, 923

N.E.2d 735 (2010).

      It is the absence of a special interrogatory answered by the

jury to explain its general verdict for the defendant that


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No. 1-07-1128

forecloses any claim of prejudice arising from an allegedly

erroneous instruction.   Strino, 365 Ill. App. 3d at 904-05 (in

the absence of a special interrogatory, a court of review cannot

"determine whether the jury found in the defendant's favor on the

negligence issue[, rather than on contributory negligence]").

     In the instant case, if the jury rendered its no liability

verdict because the plaintiff failed to prove negligence on the

part of Dr. Boffa, then the long-form proximate cause instruction

the plaintiff complains of, played no role in the jury's decision

in favor of the defendant doctor.     Tabe v. Ausman, 388 Ill. App.

3d 398, 403, 902 N.E.2d 1153 (2009); see also Orzel v. Szewczyk,

391 Ill. App. 3d 283, 290, 908 N.E.2d 569 (2009).

     In Tabe, the defendant doctors argued that based on the two-

issue rule, "if the jury determined that the defendant doctors

did not deviate from the standard of care, then any error in

giving the long-form proximate cause instruction 'would have had

no effect on the verdict.' "   Tabe, 388 Ill. App. 3d at 402,

quoting Strino, 365 Ill. App. 3d at 904-05.    We agreed.

     In Orzel, the plaintiff claimed the jury was wrongly

instructed on contributory negligence.    However, we determined

that the absence of a special interrogatory answered by the jury

explaining the basis for its general verdict precluded our review

of the issue:

     "When the jury returned a verdict in favor of defendants in

     this case, it could have decided defendants were not liable


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No. 1-07-1128

     because plaintiff failed to meet her burden of proof

     regarding the underlying slip and fall negligence case.    Or,

     the jury could have found plaintiff was more than 50% at

     fault for her injuries.    We simply do not know what the jury

     decided here, other than that defendants were not liable.

     The jury may have reached a verdict in defendants' favor

     without ever considering the issue of contributory

     negligence.   Based on the general verdict returned, we

     cannot say the contributory negligence instruction made a

     difference in this case.   [Citation.]"   Orzel, 391 Ill. App.

     3d at 290.

     When the two-issue rule applies, review of a jury's general

verdict is foreclosed in the absence of a special interrogatory

explaining the basis for the verdict, much like review is

foreclosed when the appealing party fails to submit a record that

demonstrates the circuit court erred in its reasoning in ruling

in favor of the opposing party.   See Foutch v. O'Bryant, 99 Ill.

2d 389, 391, 459 N.E.2d 958 (1984) (in the absence of a

transcript of the circuit court proceedings, "the   appellate

court had to presume that the trial court acted in conformity

with the law and ruled properly after considering the motion").

     When we affirm in the absence of a jury's answer to a

special interrogatory explaining its general verdict or in the

absence of a transcript explaining the circuit court's ruling, we

do so on the basis that the applicable presumption precludes


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review, not on the basis that the appealing party failed to

demonstrate prejudice, though the latter is necessarily true as

well.

     Even if we were to set aside the presumption raised by the

two-issue rule and directly consider the plaintiff's claims of

prejudice, the plaintiff is unable to demonstrate substantial

prejudice to warrant a new trial based on any error in

instructing the jury with the second paragraph of IPI Civil 3d

Nos. 12.04 and 12.05.   See Tabe, 388 Ill. App. 3d at 405-06

("there is no precedent that holds the giving of the sole

proximate cause instruction results in prejudice to a

plaintiff").

     I specially concur in the result.




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