A recent Appellate Court Decision from the Illinois First District has provided a reminder on the importance of following-up. In Buck v. Charletta, the plaintiff, an oncological nurse, consulted an orthopedic surgeon complaining of neck pain. 2013 IL App (1st) 122144 at ¶3. The orthopedic surgeon ordered an MRI, which was sent to a radiologist for interpretation. Id. The radiologist prepared a final MRI report which detailed an abnormal finding in the plaintiff’s right lung, including a possible malignant lung tumor. Id. The report recommended that follow-up studies be taken and sought clinical correlation. Id. This report was made electronically available to the orthopedic surgeon and his staff at the orthopedic surgeon’s offices. Id. at ¶9. The radiologist did not fax the report to the orthopedic surgeon or call the orthopedic surgeon directly to inform him of the abnormal findings. Id. at ¶11.
Despite no direct communication with the radiologist, the orthopedic surgeon testified that he read the report, appreciated the contents of the report, and recalled reading the report together with the plaintiff. Id. at ¶17, 19. Though he had the capability of ordering follow-up testing, the orthopedic surgeon did not, instead relying on the assurances of the plaintiff that she would follow up with her primary care physician. Id. This testimony conflicted with the plaintiff’s recollection, in which she testified that the orthopedic surgeon never told her about the possible right lung malignancy; had she been informed, as an oncological nurse she would have understood and appreciated the clinical significance of those findings. Id. at ¶35.
The plaintiff did not have a follow-up study performed until over a year later, when another of plaintiff’s physician ordered an MRI following complaints of neck sensations. Id. The interpreting radiologist noted what appeared to be a lesion in the right upper lung, and contacted the ordering physician immediately to communicate this finding. Id. The plaintiff initiated treatment for the lesion, but the treatment was ultimately unsuccessful, and the plaintiff died as a result of the lesion. Id.
The plaintiff filed suit against the initial radiologist and the orthopedic surgeon seeking damages for the failure to diagnose. Id. at ¶4. As against the radiologist, the plaintiff alleged that he was negligent in the manner in which he reported the interpretation of the plaintiff’s MRI results to the orthopedic surgeon; that is, the radiologist was required to make a “non-routine, real-time communication” to alert the orthopedic surgeon of the abnormal finding. Id. In granting summary judgment in favor of the radiologist following a motion to reconsider, the trial court relied on the orthopedic surgeon’s testimony that his care of the plaintiff would not have changed had the radiologist telephoned him the MRI results. Id. at ¶22. In essence, the trial court concluded that the plaintiff was unable to demonstrate that the radiologist’s negligence in not effectively communicating the information contained in his MRI report to the orthopedic surgeon proximately caused the plaintiff’s injury. Id. at ¶54.
In reversing summary judgment, the First District Appellate Court relied on the Illinois Supreme Court’s ruling in Snelson v. Kamm, 204 Ill. 2d 1 (2003), to overcome the radiologist’s defense that the orthopedic surgeon would not have acted differently had he properly communicated the MRI results. The Appellate Court noted that this argument – that it is impossible for a plaintiff to prove proximate cause anytime a physician testified that “he would not have acted differently” – was “a ‘red herring’ because it assumed that the doctor would not be willing to tell the truth about whether the conduct of others affected their decision making ability.” Id. at ¶69. Quoting from Snelson, the Appellate Court said that “a plaintiff would always be free to present expert testimony as to what a reasonably qualified physician would do with the undisclosed information and whether the failure to disclose the information was a proximate cause of the plaintiff’s injury in order to discredit a doctor’s assertion that the  omission did not affect his decision making.” Id. (quoting Snelson, 204 Ill. 2d at 45-46).
Here, the Appellate Court noted the plaintiff’s testimony that she was never informed of the results as well as other evidence that would allow a jury to find that the orthopedic surgeon, contrary to his testimony, had not informed the plaintiff of the MRI findings. Id. at ¶72. The plaintiff also presented expert testimony which demonstrated what reasonably well-qualified physicians would have done in the position of the orthopedic surgeon and the radiologist. Id. at ¶70. Additionally, the manner in which the plaintiff was diagnosed was consistent with the plaintiff’s experts’ theories on why the defendant was negligent; that is, that the radiologist who interpreted the follow-up MRI immediately informed the ordering physician of the findings, and proper treatment was immediately undertaken. Id. at ¶71. All of this evidence demonstrated that an issue of fact existed as to whether the orthopedic surgeon actually read the MRI report and conveyed its findings to the plaintiff. Id. at ¶72.
As to proximate cause, this evidence would have allowed the jury to find that the radiologist’s failure to properly communicate the MRI report led to the report’s “fall[ing] between the cracks, to the detriment of the patient, who was ultimately deprived of a full year of oncological treatment.” Id. at ¶73. Thus, the orthopedic surgeon’s testimony that he read and received the report did not shield the radiologist from liability; “it merely confirms the controversy” between the parties’ theories. Id. On this basis, the Appellate Court reversed and remanded. Id. at ¶75.
Buck makes clear that a defendant physician’s testimony regarding what steps he would or would not have taken with undisclosed information may not be sufficient as a defense to proximate cause. For defense attorneys, Buck demonstrates that expert testimony in addition to the defendant’s physician’s testimony may be warranted.
Alex Campos is an associate attorney at Cassiday Schade LLP in the firm’s Chicago office. He concentrates his practice in civil litigation, with an emphasis on medical malpractice defense.