|
|
|
|
 |
06/01/2007 SECOND DISTRICT HOLDS THAT THE SHOWING OF A MERE TEMPORAL RELATIONSHIP BETWEEN THE CARE AT ISSUE AND A CLAIMED INJURY IS NOT SUFFICIENT TO ESTABLISH PROXIMATE CAUSE By: Timothy G. Savage, J.D. The Illinois Appellate Court for the Second District has affirmed the summary judgment entered in favor of a defendant doctor because the plaintiff’s only evidence of proximate causation was the temporal relationship between the care at issue and the development of the plaintiff’s alleged injuries. Hussung v. Patel, 369 Ill.App.3d 924 (2d Dist. 2007). The plaintiff’s petition for leave to appeal the ruling to the Illinois Supreme Court was denied. The defendant doctor in Hussung administered an epidural steroid injection after the plaintiff presented with complaints of back pain, a history of spinal surgery, and a history of persistent infection. The injection was a "wet tap," with cerebrospinal fluid being drawn back into the syringe. Immediately following the injection, and for several days afterward, the plaintiff experienced neurologic deficits, including foot drop of the left foot, numbness, tingling, inability to speak, inability to walk, instability when walking and standing, severe headaches, and confusion. Eleven days after the epidural-steroid injection was administered, the plaintiff was admitted to the hospital with a diagnosis of meningoenchephalitis. During discovery, the plaintiff disclosed two of her treating physicians as 213(f)(2) experts. Dr. George Mejicano, an infectious-disease specialist, testified at deposition that there appeared to be a temporal relationship between the epidural steroid injection and the plaintiff's development of neurologic deficits, but that it would be “speculation” to conclude that the injection caused the encephalitis. Dr. Brad Beinlich, a treating neurologist, likewise testified that it was "speculation as to what happened." Dr. Beinlich opined that there were three possible explanations for the plaintiff's condition following the steroid injection: 1) the injection itself triggered a chemical meningitis, resulting in an encephalitis and polyradiculitis; 2) the plaintiff had a partially treated bacterial infection and suffered a complication of partially treated meningitis; and 3) the complication was related to herpes-simplex, which was cultured from the plaintiff's cerebrospinal fluid. Not only did Dr. Beinlich not know which of these three possibilities caused the plaintiff's condition, he didn't think anyone else could say, either. Dr. Edward Brunner, a retired anesthesiologist and the plaintiff's 213(f)(3) expert, testified that the defendant had deviated from the standard of care in administering the epidural-steroid injection, and that the deviation caused the encephalitis, but he could not say exactly what the defendant had done wrong. When asked to identify the basis of his opinion, he was able to say only that the plaintiff's encephalitis had following the steroid injection. Because the infection followed the injection, Dr. Brunner believed there was a "direct cause and effect." In terms of whether the infection was caused by the presence of herpes simplex, Dr. Brunner deferred to an infectious-disease expert. The defendant moved for summary judgment, arguing that plaintiff had established only a temporal relationship between the care at issue and the plaintiff's alleged injury, and that without more, the plaintiff's evidence failed to establish proximate cause. The plaintiff argued in response that the injection and the infection were "so remarkable, so contemporaneous, that its causal relationship [was] evidence and [could] not be doubted." The Second District agreed with the defendant, concluding that "absent the temporal relationship, none of the doctors [already mentioned] provided a factual basis for a conclusion that the injuries resulted from the steroid injection." The court was unwilling to shift the burden of proof to the defendant by concluding that contemporaneity was sufficient to make a prima facie showing of causation. -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
|
