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09/06/2006 FIRST DISTRICT ISSUES AN IMPORTANT PROXIMATE CAUSE RULING By: Timothy G. Savage, J.D. Arecent decision of the Illinois Appellate Court for the First District found that the plaintiff had failed to establish a prima facie case on her claim that the defendant’s negligence lessened her decedent’s chances of surviving a heart attack. The appellate court therefore held that the defendant was entitled to judgment in his favor as a matter of law and reversed the nearly $259,000 judgment against him. Krivanec v. Abramowitz, 851 N.E.2d 849 (Ill. App., 1st Dist., 2006). The facts of Krivanec are straight-forward. On May 22, 1998, the decedent, George Krivanec, presented to the emergency department at Christ Hospital with tightness in his chest, angina, shortness of breath and a cold sweat. Mr. Krivanec had a history of chronic asthma and heart disease. Dr. Abramowitz, the defendant cardiologist, was brought in by Krivanec’s attending physician to do a cardiac evaluation. Mr. Krivanec’s cardiac work up was abnormal. A stress test indicated a significant narrowing of his coronary arteries, and suggested exercise-induced ischemia. Dr. Abramowitz believed, however, that the test results were not unexpected due to Mr. Krivanec’s known medical history. Although undocumented in the medical records, Dr. Abramowitz testified that he had a conversation with Mr. Krivanec wherein he suggested additional testing to determine whether Mr. Krivanec’s cardiac condition was stable. Dr. Abramowitz testified as well that Mr. Krivanec expressed a desire to return instead to his treating cardiologist, Dr. Pascale, for further care. Dr. Abramowitz admittedly did not tell Mr. Krivanec that he was at increased risk for a heart attack, but instead simply discharged him on May 24, 1998, with orders to follow-up with Dr. Pascale within one week. Mr. Krivanec did not see Dr. Pascale until July 21, 1998, almost two months after discharge, when he presented with complaints of pain in his jaw and numbness in his arm. Dr. Pascale adjusted Mr. Krivanec’s medication at that time but did not order an angiogram or other testing that might have diagnosed a worsening heart condition. On August 9, Mr. Krivanec suffered a heart attack and was readmitted to Christ Hospital. An angiogram showed that his right coronary artery was 100% occluded, his left anterior descending artery was totally occluded, and the circumflex artery was 90% occluded. Mr. Krivanec underwent angioplasty, stent placement, and cardiac bypass surgery, but he died 45 days later on September 24, 1998. Plaintiff’s expert, Dr. Timothy McDonough, testified at trial that Dr. Abramowitz had deviated from the standard of care when he concluded that Mr. Krivanec’s angina was stable, and opined that Dr. Abramowitz further deviated from the standard of care in the way he recommended follow-up care for Mr. Krivanec. Dr. McDonough told the jury that the standard of care required Dr. Abramowitz to tell Mr. Krivanec that he was at increased risk for a heart attack and that he needed an angiogram to further evaluate his cardiac condition. Dr. Abramowitz was wrong to simply tell the patient to follow-up with his personal physician, said Dr. McDonough, because that order did not “add anything” to the medical advice given the patient. In Dr. McDonough’s opinion, if Mr. Krivanec had undergone an angiogram within a week of his May hospitalization, a cardiologist would have recommended cardiac bypass surgery, which in turn would have prevented the August heart attack. Significantly, Dr. McDonough did not criticize Dr. Abramowitz for failing to conduct the further testing himself. Defendant’s expert, Dr. Mark Stern, testified in contrast that the standard of care did not require Dr. Abramowitz to recommend an immediate angiogram because Mr. Krivanec’s history, the tests done and Dr. Abramowitz’s examination did not indicate that he was at high risk for imminent cardiac mortality. Furthermore, because there was nothing in the records to indicate that Mr. Krivanec’s cardiac condition had deteriorated recently, it was reasonable for Dr. Abramowitz to refer him to his personal cardiologist, as Mr. Krivanec requested. Specifically, there was nothing to suggest that the left anterior descending artery was 70% or 80% occluded at the time of the May admission. The jury returned a verdict against Dr. Abramowitz, awarding the plaintiff $500,000 in damages. The circuit court denied the defendant’s motion for a new trial, but reduced the award to $258,929 based on recoveries from other sources. On appeal, the court noted that there was evidence presented at trial which suggested that if Mr. Krivanec had been adequately informed about his cardiac condition in May 1998, he would have understood the gravity of the situation and followed-up with Dr. Pascale within one week, as ordered by Dr. Abramowitz. Furthermore, there was evidence that if Mr. Krivanec had undergone an angiogram within one week of the May admission, that test would have led to angioplasty with stent placement or cardiac bypass surgery, either of which would have ultimately prevented the August heart attack. The court nevertheless held that there was a fatal gap in the plaintiff’s proximate cause evidence. Although there was evidence suggesting that Mr. Krivanec should have been sent for an angiogram in May, the plaintiff failed to prove that Mr. Krivanec lost an opportunity for diagnosis and treatment by waiting until July. He was seen and treated by how own cardiologist, Dr. Pascale, prior to his heart attack and there was no evidence establishing that Dr. Pascale lacked the necessary information to make a proper diagnosis during that July examination nor any evidence suggesting that an angiogram done when Mr. Krivanec was finally examined by Dr. Pascale would have been less effective in preventing the heart attack than an angiogram done within a week of the May admission at Christ. It is questionable whether the outcome would have been the same had the plaintiff alleged and proved that Dr. Abramovitz should have insisted that the tests be done while plaintiff was hospitalized in May under his care, rather than simply referring the decedent to Dr. Pascale for follow up. Instead, plaintiff’s expert limited his criticism to Dr. Abramowitz’s failure to stress the urgency of prompt follow up. In sum, the subsequent treatment by Dr. Pascale broke the causal chain between Dr. Abramowitz’s treatment and the subsequent heart attack, at least based on the theory plaintiff pursued at trial. Nothing Dr. Abramowitz did prevented Dr. Pascale from recommending an angiogram, diagnosing the occlusions and providing the necessary treatment. Nor was there any evidence that treatment within a week of Mr. Krivanec’s May admission would have been more effective or afforded a greater chance of survival than treatment delayed several weeks until Dr. Pascale’s July examination. Because there was no causal connection made between Dr. Abramowitz’s purported negligence and Mr. Krivanec’s eventual death, the court reversed the judgment, concluded that a verdict should have been directed in favor of Dr. Abramowitz. The Krivanec decision might be viewed as a step back from the usual rules of joint and several liability and the notion that there may be more than one cause of injury, at least in “lost chance” cases such as this. Other reviewing courts might simply distinguish the ruling on its facts. Alternatively, the Illinois Supreme Court might see fit to grant the petition for leave to appeal currently pending in this case and resolve any seeming conflict. -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
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