2014 I LApp (3d) 120392 Opinion filed J anuar

y 21, 2014
I N THE APPEL LATE COURT OF I L L I NOI S THI RD DI STRI CT A.D., 2014 DANI ELR. HEMMI

NGER, Individually ) Appea l from the Circuit Court and as Spec ial Administrator of the Estate ) of the 14th Judi cial Circuit , of TI NA M. HEMMI

NGER, Dec ease d, ) Whit eside County , I llinois ) Plaintiff-Appellant, ) ) v. ) Appea l No. 3-12-0392 ) Circuit No. 05-L -39 ) J EFF REY L EMAY, M.D., STERL I NG ) Honora ble ROCK FAL L S CL I

NI C, L TD., an ) Stanley B. Steines, I llinois Corporation, ) J udg e, Presiding
. ) Def endant- Appellee
. )
J USTI CE HOL DRI DGE de livered the judgme nt of the cour t, with opinion. J ustices O' Br ien and Schmidt concur red in the judg ment and opinion.

______________________________________________________________________________ OP INION ¶ 1 In this medical malprac tice ac tion, the plaintiff, Daniel R. He mminger (He mminger), sued def endants Jeffre y

L eMay , M.D. and SterlingRock Fa lls Cl inic, Ltd. seekingdamag es for the death of his wife, Tina. H emminge r alleg ed that the de fenda nts' ne g lige nt failure to diagnose Tina' s cer vical ca ncer in a timely

fashion proximately

cause d her de ath by

lesseningher c hance of survival. The trial court grante d the def endants' motion for a dire cted ve rdict, findingthatHemming er f ailed to pre sent evidenc e suff icient to establish that Dr. L eMay' s neg lige nce proxi mately

cause d Tina' s death unde r a lost cha nce of survival theory . This appea l followed. ¶ 2 FACTS ¶ 3 Tina saw D r. L eMay , an obstetricia n/gy necolog ist, on J une 23, 2000, complaining of abdominal pain on her

right side and spotting in the r ece nt past. Dr. L eMay perf ormed a pelvic examination which showed that Tina' s cer vix was a bnormally

larg e and f

irm. Howeve r, Dr. L eMay did not biopsy

Tina' s cer

vix or orde r a micr oscopic e x amination of her cer vix at that time. Approxim ately

six months later, Tina wa s diag nosed with ce rvica l canc er. B y that time, her
canc er w as at Stag e 3B , which has a 5-y ear survival rate of 32 pe rce nt. Tina died of meta static
cer vical ca ncer on April 7, 2002. ¶ 4 Hemming er sue d Dr. L eMay for medic al malpra ctice a lleg ing that Dr. L eMay neg lige ntly failed to orde r tests (such a s a ce rvica l biopsy or colposcopy 1 ) that would have detec ted Tina' s
cer vical ca ncer in J une 2000. He claimed that, ha d Dr. L eMay diag nosed Tina' s canc er in June 2000 rathe r than in De cembe r 2000, Tina would have had a signific antly

better c hance of surviving he r ca

ncer . ¶ 5 Dr. Marg are t Pfister, a boar d cer tified obstetrician a

nd g y necolog ist, was Hemming er' s sole expert witness at trial. As a g ener al g y necolog ist, Dr. Pfister does not treat cer vical ca ncer . She ref ers patients with cervica l canc er to a g y necolog ical oncolog ist. However , Dr. Pfister testified that she c ounsels such patients on their likely prog noses. Dr. Pfister stated that she ha d underg one thre e months' trainingdedicated to g y necolog ic oncolog y

and that she r egularly

rea d textbooks and journal a

rticles on ce rvica l canc er. She a lso testified that she re gularly rea d the

1 A colposcopy

is a microscopic examination of the cer vix
. 2journal published by the Amer ican Cong ress of O bstetricians a nd Gy necolog ists (ACOG), including A COG' s publications on the stag ing a nd prog nosis of cer

vical ca ncer . ¶ 6 Dr. Pfister testified that she was f amiliar with the stag ing sy stem for c ervic al ca ncer devised by

the Fe deration of Interna tional Gy necolog ic Oncolog ists (FI GO), a nd that she used the FI GO stag ing sy stem when a dvising he r patients. She stated that the FI GO stag ing sy stem identifies four br oad ca

teg ories of c ervic al ca

ncer . Stage 1 is canc er limited to the ce rvix . In Stage 2A, the ca

ncer ous tumor has sprea d from the c ervix vertically down the vag ina, but has not
rea ched the lower third of the vag ina. A Stag e 2B tumor sprea ds outward ( latera lly) fr om the
cer vix . A Stag e 3A tumor is one that ha s sprea d vertica lly down from the c ervix all the way to the lower portion of the vag ina. A Stag e 3B tumor has sprea d latera lly from the c ervix int o the pelvic sidewa ll. St ag e 4A is ca ncer that rea ches the bladder

and re ctal mucosa . Stage 4B oc curs when the c ance r spre ads outside of the pe lvis. By the time Tina' s canc er w as discover ed in Dec ember

2000, it was at Stag e 3B ( i.e. , it had sprea d latera lly from the c ervix int o the pelvic sidewall). ¶ 7 Dr. Pfister testified to a rea sonable de g ree of medica l cer tainty that, when Dr . L eMay examined Tina on J une 23, 2000, Tina' s cer vical ca ncer was e ither at Stag e 1 or at Stage 2B. D r. Pfister conc luded that Tina c ould not have had a Stage 3 cer

vical ca ncer at that time beca

use a Stage 3 tumor ext ends to the pelvic w all, involves the lower third of the vag ina, or c auses kidney injury (or some c ombination of these fa ctors), a nd none of the se thing s were described by Dr. L eMay in J une 2000. F urther, D r. Pfister opined that Tina did not have a Stag e 2A c ance r at that time beca use a tumor e x tendingdown into the vag ina from the c ervix should be "pre tty obvious" to an experienc ed g y

necolog ist li ke Dr . L eMay , and Dr . L eMay did not describe a

ny such tumor
3when he examined Tina on J une 23, 2000. 2 Howeve r, Dr. Pfister conce ded that she c ould not rule out the possibility

that there was some late ral spre ad of the canc er by J une 2000. Thus, she conclude d that the ca

ncer could have rea ched Stag e 2B at that time. ¶ 8 Ba sed on survival data published by the Amer ican Canc er Socie ty for wome n diag nosed with cer vical ca ncer betwee n 2000 and 2002 (which provide sur vival rate s for e ach sta g e of the FI GO sy stem), Dr. Pfister te stified that: (1) the 5- y ear survival ra

te for w omen with Stage 1
cer vical ca ncer is 80-90 perc ent; (2) the 5- y ear survival rate for w omen with Stage 2B c ervic al
canc er is 58 per cent; and ( 3) whe n Tina wa s diag nosed with Stag e 3B cer vical ca ncer in Dec ember

2000, her 5- y ear

survival rate was 32 pe rce nt. Accor dingly , based on the FI GO stag ing sy stem, the Americ an Canc er Socie ty survival statistics, and her e ducation, tra ining a nd, experience , Dr. Pfister opined that Dr. L eMay' s neg lige nt failure to diagnose Tina' s cer vical
canc er on June 23, 2000, cause d Tina' s chanc es for survival to decr ease from betwe en 58-63 perc ent (a ssuming the c ance r wa s at Stag e 2 at that time) to 32 pe rce nt. She also testified that the
ear lier one is able to make the diagnosis of cer vical ca ncer , the sooner the patient is able to underg o treatment, and thus the better the outcome will be for the patient. ¶ 9 The Ame rica

n Cance r Society ' s survival rate table for cer vical ca ncer (the table upon which Dr . Pfister relied in r ender ing he r ca usation opinion) includes the followingdisclaimer: "Surviva l rates a

re of ten base d on previous outcomes of larg e numbers of pe ople who had the disease, but they cannot pr edict

2 Dr. Pfister a lso noted that, when Tina w as see n by her f amily phy sician, Dr. Ra ime, in September 2000, D r. Raime per formed a pelvic examination and did not report se eingany tumor extending into the vag ina. 4what will happen in a ny particula r per son' s case . Many

other fac tors may

aff ect a person' s outlook, such as their g ener al hea lth and how we ll the canc er r esponds to treatment. Your doctor c an tell y ou how the number s below may apply to y ou, as he or

she is familiar with the a spects of your par ticular situation." Duringcross-e x amination, Dr. Pfister a cknowledg ed that the table provided " g ener al information rathe r than spec ific information" and that it "isn' t supposed to tell any one per son what their chanc e of sur

vival is." ¶ 10 Dr. Pfister a g ree d that there wer e many fac tors that can a ffe ct a spe cific patient's c hance s of survivingcer

vical ca ncer , including: ( 1) the patient's g ener al hea lth at the time of diag nosis; (2) the histolog ical cha

rac teristic of the c ance r ( i.e. , whether it is squamous cell canc er or adenoc arc inoma); (3) whether the patient' s canc er is we ll-differ entiated, moder ately differ entiated, or

poorly differ entiated; (4) whether the ca ncer ous tumor is "exophy tic" ( i.e. , g rowingoutward f

rom the ce rvix ) or " endophy tic" ( i.e. , growinginward w ithin the cervix); and (5) whe ther the patient's c ance r is responsive to c hemothera py and ra diation. 3 Dr. Pfister did not consider a

ny of these f actor s in determiningTina' s chanc e for survival. She testified that the Americ an Canc er Socie ty table does not bre ak down surviva l rates ba sed upon these f actor s. Moreove r, Dr. Pfister

stated that she wa s not a g y necolog ical oncolog ist and that she did not have

3 Dr. Pfister wa s asked a

bout the eff

ect of other fa ctors, such a s whether the ca ncer was "ke ratinizing" or " non-ker atinizi ng ," a nd, if non-ker atinizi ng , whether it was " small cell" or "la rg e ce ll" ca

ncer . The doc tor responde d that it was not possible for anyone to know whe ther these fa ctors af

fec t any individual patient's sur

vival rate
. 5the expertise to apply these a dditional variables to the surviva l rate statistics in calc ulating what Tina' s survival rate was in June, September, or De cembe r 2000. Dr. Pfister testified that Tina' s
cer vical ca ncer was a moderately

differ entiated, squamous cell ca rcinoma, a

nd she ac knowledg ed that a g y necolog ic oncolog ist mi g ht be able to of fer an opinion as to a spec ific individual' s chanc e of sur

vival based upon a

consideration of both the g ener al survival rates and the oncolog ist's " experience with moderate ly differ entiated c ance r or squamous carc inoma." Howeve r, Dr. Pfister

conce ded that she la cked the expertise to offer such an opinion. ¶ 11 Dr. Pfister testified that the only treatments available f

or ce rvica l canc er a

re chemother apy , radiation, and, in some case s, surg ery . After her c ance r wa s diag nosed in Dec ember

2000, Tina re ceive d only chemother apy

and ra diation. Dr. Pfister ac knowledg ed that Tina re sponded poorly

to treatment a

t that time. She testified that she " wouldn' t know" how Tina would have r esponded to tre atment if she ha d been dia g nosed and tre ated in June 2000 rather than in Dec ember

2000. Dr. Pfister did not say what the spe cific c ourse of treatment would have been if Tina had be en diagnosed in J une 2000 or howsuch treatment might have differ ed fr om the treatment she rec eived in De cembe r 2000. ¶ 12 At the close of

Hemming er' s case , the def endants moved f

or a dire cted ve rdict. The defe ndants argued that He mminger had fa iled to meet his burden of provingproxi mate ca

usation by establishing that the defe ndants' neg lige nce le ssened Tina ' s chanc e of sur vival. The trial c ourt ag ree d. The trial c ourt noted that the re levant ca se law e stablished that proxi mate ca usation may not be spec ulative, i.e. , a plaintiff may not establish prox imate ca usation "ba sed on mere possibili ties" or

g ener alities. The trial c ourt interpre ted this rule as re quiringthe plaintiff to do more than me rely

state the g ener al proposition that "the e arlier diag nosis [ occur s] t he better y our
6chanc es ar e." The trial c ourt ruled that the pla intiff must be able to make a " connec tion between

the g ener al rule" and " the spec ific instance we have in this matter." The c ourt found that Dr
. Pfister failed to make such a c onnection bec ause she offe red only : (1) g ener alized evidence about the stag ing of

cer vical ca ncer in gr oup populations based upon the Ame rica n Cance r Society ' s survival rate table; and ( 2) a g ener al opinion that an ea rlier diagnosis leads to better r esults. As the trial cour

t put it: "D r. Pfister *** wa s not able to conne ct those tables, those *** g ener al circ umstances up to *** the c ircumstance s for [Tina]. S he wasn' t able to make that causa l connec tion, *** other than being speculative, mere possible or conting ent. She couldn' t speak to treatment or what would ha ppen if this treatment were provided or
even what kind of treatment should be provided. She could just talk about the stag ing a

nd the survival rates and a g ain, all speaking g ener ally , not making that specific c onnection that nee ds to be made in a me dical malpra ctice c ase." ¶ 13 Acc ording ly , the trial cour t gr anted the de fenda

nts' motion for a

direc ted ver dict. The trial court ba sed its decision primarily on its review of

the ca ses provided by

the def endants. The court noted that, before rea ding the case law, it would have thought that the evidenc e provide d by Dr. Pfister " would have be en enough to car ry the day ." H oweve r, the c ourt observe d that the
case law esta

blished that "that isn't the c ase." The c ourt stated that this was " probably one of the more diff icult decisions that this Court has made."

7¶ 14 ANALYSI S

¶ 15 One of

the eleme nts of a medica l malprac tice cla im is an injury proxi mately

cause d by the phy sician' s lack of skill or ca re. Sullivan v. Edward Hospital , 209 I ll. 2d 100, 112 (2004). To establish proxim ate c ausation, a pla intiff must prove that the def endant' s neg lige nce " more probably than not" c aused the plaintiff' s injury
. Holton v. Me morial Hospital , 176 I ll. 2d 95, 107 (1997). ¶ 16 In this case, He mminger proce eded unde r the " lost chance " the ory of re cover

y . This theory "r efe rs to the injury

sustained by

a plaintiff whose medical pr oviders ar e alleg ed to have neg lige ntly

deprive d the plaintiff of a chanc e to survive or

rec over f rom a he alth problem, or wher e the malpr actice has lessene d the ef fec tiveness of tre atment or incr ease d the risk of a n unfavor able outcome to the plaintiff." Id. at 111. In Holton , our supre me cour t stated, " [t ]o t he extent a plaintiff' s chanc e of r ecove ry or survival is lessene d by the malpra ctice, he or she should be able to present e vidence to a jury that the def

endant' s malprac tice, to a r easona ble degree of medical c erta inty , proxi mately cause d the incre ased r isk of harm or lost cha nce of rec overy ." Id. at 119, 223. To make this showing, a pla intiff is not required to prove that she would have had a g reater than 50% chanc e of sur vival or re cover

y absent the a lleg ed malpra ctice. Id. Nor is the plaintiff re quired to prove that "a better r esult would have be en ac hieved a bsent the alleg ed neg lige nce of

the doctor." Id. at 106 (quoting Borowski v. Von Solbrig , 60 I ll. 2d 418, 424 (1975))
. ¶ 17 Hemming er a

rgues that the trial c ourt err ed in g rantingthe def endants' motion for a direc ted ver dict on the issue of proximate causation. "I ssues involving proximate cause are fac t

8specific and ther efor e uniquely for the jur

y ' s determination." Holton , 176 I ll. 2d at 107. 4 A trial court may g rant a direc ted ver dict only

in those limi ted ca ses wher e " all of the e vidence , when viewed in its aspec t most favorable to the opponent, so overwhelmingly favor s [t he] movant that no contra ry verdic t based on that e vidence could eve r stand." Pedrick v. Pe oria and Eastern R.R. Co. , 37 I ll. 2d 494, 510 (1967); see a lso Krywin v. Chicago Transi t Authority , 238 I ll. 2d 215, 225 (2010). A tr ial court should g rant a direc ted ver dict for the de fense only wher e the plaintiff has fa iled to establish a prima faciecase . See Sullivan , 209 I ll. 2d at 123. A plaintiff establishes
a prima facie case by

"pr esenting someevidenc e on eve ry essential ele ment of the c ause of action." (Emphasis adde d.) Perke y v. P ortes–Jarol , 2013 I LApp (2d) 120470, ¶ 63; Davis v. Kraff , 405 I ll. App. 3d 20, 31 (2010). In rulingon a motion for a dir ecte d verdic t "a court doe s not weig h the evidenc e, nor is it conce rned w ith the cre dibilit y of the witnesse s; rather , it may only consider the evidenc e, and a ny infere nces the ref

rom, in the light most favor able to the pa rty resistingthe motion." Maple v . Gustafson , 151 I ll. 2d 445, 453 (1992). ¶ 18 Be cause a trial c ourt ca nnot weig h or judg e the c redibility of witnesses in dec iding a motion for a dire cted ve rdict, the re viewingcourt ne ed not g ive substantial defe renc e to the trial court' s ruling. City of Matoon v. Mentzer , 282 I ll. App. 3d 628, 633 (1996). The ref ore, w e revie w a tria l court' s ruling on a motion for direc ted ver dict de novo
. Krywin , 238 I ll. 2d at 225 (2010); Perke

y , 2013 I L

App (2d) 120470, ¶

54.

4 See id. (" When a plaintiff come s to a hospital alrea dy injured, *** or ha s an existi ng undiag nosed medica l condition, *** and while in the ca re of the hospital is neg lige ntly treated, the question of whe ther the de fenda nt's ne g lige nt treatment is a pr ox imate ca use of plaintiff' s ultimate injury

is ordinarily

one of f act f or the jury .")
. 9¶ 19 In g rantingthe def endants' motion for a dire cted ve rdict in this case, the trial court f ound that Hemming er ha d failed to pre sent evidenc e that Dr . L eMay' s neg lige nt failure to diagnose Tina' s cer vical ca ncer in J une 2000 contr ibuted to Tina' s death or le ssened he r cha nce of survival. We disag ree . Dr. Pfister opined that Dr. L eMay' s neg lige nt failure to diagnose Tina' s cer vical
canc er on June 23, 2000, cause d Tina' s chanc es for survival to decr ease . Although D r. Pfister could not say

with cer tainty what stag e Tina' s cer

vical ca ncer had re ache d by

J une 2000, she testified to a re asonable deg ree of medica l cer tainty that, when Dr . L eMay

examined Tina on J une 23, 2000, Tina' s canc er w as either at Stag e 1 or a

t Stage 2B. D r. Pfister noted that,
acc ordingto survival data published by the Amer ican Canc er Socie ty , the 5-year survival rate for women with Stag e 1 ce rvica l canc er is 80-90 pe rce nt, and the 5-year survival rate for w omen with Stage 2B c ervic al ca ncer is 58 perce nt. By

the time Tina wa s diag nosed with Stag e 3B
cer vical ca ncer in Dece mber 2000, he r 5-year survival rate had dr opped to 32 per cent. Acc ording ly , based on the FI GO stag ing sy stem, the Americ an Canc er Socie ty survival statistics, and her educa tion, training a

nd, experience , Dr. Pfister opined that Dr. L eMay' s neg lige nt failure to diag nose Tina' s cer

vical ca ncer on J une 23, 2000, ca

used Tina' s chanc es for

survival to decr ease . Dr. Pfister' s testimony supports a re asonable infere nce that the 6-month delay in diag nosing Tina ' s canc er c aused Tina to lose a 26% c hance of survival if he r ca ncer was at Stage 2B in June 2000, 5 and a 48- 58% cha nce of survival if her

canc er w as at Stag e 1 in J une 2000.

5 At one point in her testimony , Dr. Pfister testified that Dr. L eMay' s failure to diag nose Tina' s cer vical ca ncer on J une 23, 2000, ca

used Tina' s chanc es for

survival to decr ease from betwee n "58- 63 perc ent" (assumingthe ca ncer was " at Stag e 2" at that time) to 32 perc ent. Howeve r, Dr. Pfister

testified that Tina c ould not have had Stag e 2A c ance r (whic h car ries a 10¶ 20 Our a ppellate c ourt has held that the ty pe of e vidence prese nted by Dr. Pfister in this
case was suff

icient to establish a prima facie case of proximate causa tion and to survive a motion for dire cted ve rdict. See P erke y , 2013 I LApp (2d) 120470, ¶ ¶ 64-65, appeal denied, 996 N.E.2d 23 (I ll. Sep 25, 2013) (Table No. 116076). In Perke y , the administrator of the estate of L eanne Perkey (Perke y ) brought a medica l malprac tice ac tion ag ainst Perkey ' s phy sician' s estate a nd his clinic af ter Perke y

died from pa

ncre atic ca

ncer . Id. ¶ 1. The pla intiff claimed that the phy sician' s delay

in diag nosing Per

key ' s canc er c aused Per

key to lose a cha

nce f or a c ure a

nd was
a ca use of he r death. Dr. L owy , a surg ical oncolog ist, testified for the plaintiff on the issue of
causation. Id. ¶¶ 15- 23. After identifying a

document showingsurvival rates for e ach sta g e of pancr eatic c ance r, Dr. L owy opined that the dela

y in diag nosing Per

key' s canc er w as a c ause of the re curr ence of her

pancr eatic c ance r and a

cause of her

death. Id. ¶¶ 19- 20, 64. He a lso opined that the dela

y cause d Perkey

to lose a cha

nce at a cur e. Id. ¶¶ 19, 64. Dr. L owy testified that, when Per

key ' s canc er w as re moved, it was Stag e I I B, g iving he r a 6% chanc e of a 5-year
survival rate of 63 pe rce nt) on J une 23, 2000, bec ause D r. L eMay did not observe a

tumor extending down into the vag ina from the c ervix at that tim e, and D r. Raime did not observe any such tumor in September 2000. Thus, ba sed on Dr. Pfister ' s own testimony , if Tina' s canc er ha d
rea ched Stag e 2 in J une 2000, it must have bee n at Stag e 2B , which ca rries a survival rate of 58 perc ent. Acc ording ly , Dr. Pfister' s testimony sug g ests that if Tina had Stag e 2 ca ncer in J une 2000, Dr. L eMay' s neg lige nt failure to diagnose her canc er at that time cost Tina a 26% c hance at survival. We arr ive at this figure by calc ulating the differ ence betwee n 58 perc ent (the c hance s of survivingStage 2B c ervic al ca ncer) and 32 pe rce nt (the cha nces of surviving Stag e 3B cer

vical
canc er)
. 11survival. Id. ¶¶ 21, 64. Although D r. L owy conce ded that it was " impossibl e to say " w ith
cer tainty at what stag e Perke y ' s canc er w as at the time she w as initially examined by

her phy sician in Fe bruar

y 2001, he opined to a r easona ble degree of medica l cer tainty that it was likely a Stag e I IA at that time, and it could have been at Stage I
. Id. ¶ 64. Dr. L owy testified that, if it was at Stag e I IA, Perke y was twice as likely

to be cur ed at that time than she was whe n her c ance r progresse d to Stage I I B, a nd if it was a Stag e I , she wa s six times more likely to be
cure d. Id. ¶¶ 21, 64. In either c ase, a ccor ding to Dr . L owy , Perkey' s canc er " would have be en at
an ea rlier stag e in Fe bruar

y 2001 and ther efor e her

chanc es for

a cur e would have been greater." Id. ¶ 23. In sum, Dr. L owy "te stified that [P erke y ] would have had a g rea ter c hance of re cover

y had she be en diagnosed and tre ated in F ebrua ry 2001, beca

use he be lieved that her

canc er w as at
an ea rlier stag e at that time." Id. ¶ 66. Ba sed entire ly on a conside ration of Dr . L owy ' s testimony , our appe llate cour t held that the plaintiff had " prese nted some evide nce that [ plaintiff' s phy sician' s] allege d neg lige nce, which re sulted in [ Perkey] notbeingdiag nosed with ca ncer in Fe bruar y 2001, decr ease d her c hance s of re cover ing f rom the disease ." Id. ¶ 64. Acc ording ly , the cour t affir med the trial c ourt' s denial of the de fenda nt's motion for dire cted ve rdict on the issue of proximate causation. ¶ 21 Our a

ppellate c ourt rea ched this conc lusion in Perke yeven though Dr. L owy

testified that: (1) Perke y ' s treatment in F ebrua ry 2001 would have be en the sa me as it was in 2002, whe n her c ance r wa s discovere d ( id. ¶ 18); (2) the survival ra te from pa

ncre atic ca

ncer is poor, with about 23% of pa

tients livi ng12 months after dia g nosis and only 5% alive a fter 5 year s ( id. ¶¶ 22, 65) ; (3) althoug h pancr eatic c ance r is cura ble in some ca ses ( id. ¶ 23), it is most often diag nosed afte r the disea se has meta stasized, ge nera lly prec luding a

ny hope for a cur e ( id. ¶¶ 22, 65) ; and
12(4) if Per

key had panc reatic canc er in F ebrua ry 2001, which Dr . L owy

believed she did, there was grea ter than a 50% likelihood that it had alrea dy metastasized, and " even if she had be en treated at that time, it was more likely than not that she would have died from the dise ase." ( Id. ) Our a ppellate c ourt held that these a dmissions by Dr. L owy

did not entitle the defe ndants to a direc ted ver dict, rea soning that:

"unde r Holton , plaintiff was not re quired to prove that [P erke y ] would have ha d a greater than 50% chanc e of sur vival or re cover

y absent the a lleg ed malpra ctice. Holton , 176 I ll. 2d at 119. *** Rather, plaintiff ha d to present someevidenc e that the a lleg ed neg lige nce pr ox imately

cause d the incre ased r isk of harm or lost chanc e of r ecove ry

to a re asonable deg ree of medica l cer tainty ( id. ), and pla intiff did so through D r. L owy ' s testimony that [P erke y ] was two to six times more likely to survive five year s (and the rea fter live to a

natura l death) ha d she bee n diag nosed in Fe bruar y 2001 as opposed to Jul y

2002." (Emphasis adde d.) Id. ¶ 65. ¶ 22 Dr. Pfister pr esente d exactly the same ty

pe of e x pert testimony

in this case. As noted, Dr. Pfister opined to a

rea sonable de g ree of medica l cer tainty that, when Dr . L eMay

examined Tina on June 23, 2000, Tina' s canc er w as either at Stag e 1 (which has a

survival rate of 80-90 perc ent) or a

t Stage 2B ( which has a

survival rate of 58 pe rce nt). Dr. Pfister a lso testified that, by the time Tina wa s diag nosed with Stag e 3B cer vical ca ncer in Dece mber 2000, he r 5-year survival rate had dr opped to 32 per cent, whic h repr esents a 26- 58 perc ent re duction of her chanc e
13to survive the disea se. L ike the cour t in Perke y , we hold that this ty

pe of te stimony , standing alone, is suffic ient to establish a prima facie case of proximate causation under a lost cha nce of
rec overy theory , and is there fore sufficie nt to withst and a motion for dir ecte d verdic t on the issue of ca usation. ¶ 23 The de fenda

nts arg ue that He mminger ' s causation evidence was spec ulative and inadequate bec ause D r. Pfister " was una ble to opine that the outcome in [Tina' s] s pecif ic ca se would have be en diffe rent with ea rlier tre atment." We disag ree . In Holton , our supre me cour t made c lear

that the plaintiff is not require d to prove that " a better result would have been achie ved abse nt the alleg ed neg lige nce of the doctor." Holton , 176 I ll. 2d at 106 (quoting Borowski , 60 I ll. 2d at 424)). Thus, He mminger was not re quired to show that Dr . L eMay' s neg lige nce a ctually

deprive d Tina of a

better outcome . Rather, he only neede d to show that the alleg ed neg lige nce "inc rea sed a risk of har m or [a] lost chance of re cover y ." ( Emphasis added.) Id. at 119. In other wor ds, Hemming er only neede d to show that Dr. L eMay' s neg lige nce deprive d Tina of the oppor tunity to underg o treatment that could have be en more eff

ective if g iven ea rlier, not that such tre atment would have be en ef

fec tive. See, e.g. , W

alton v. Dirkes , 388 I ll. App. 3d 58, 61 (2009) (pla intiff may survive a motion for dir ecte d verdic t by prese nting evidenc e that an e arlier

diag nosis would have led to tre atment that " may have c ontributed to" the plaintiff' s rec overy ") (empha sis added); Topp v. Logan , 197 I ll. App. 3d 285, 299-300 (1990) (plaintiff must prese nt evidence that ear lier diagnosis could have a ltered f

inal result); see also W odziak v. Kash , 278 I ll. App. 3d 901, 913 (1996). Unde r Holton , Hemming er only had to show
a lost chanceof survival, not that Tina a ctually would have sur

vived abse nt Dr. L eMay' s neg lige nce. Holton , 176 I ll. 2d at 106-07, 111, 119, 123.
14¶ 24 Her e, He mminger prese nted suffic ient evidenc e to survive a motion for direc ted ver dict. Dr. Pfister testified that the course of treatment for Tina' s canc er ( i.e. , chemother apy and radiation) would have be en the same whethe r Tina' s canc er w as diagnosed in J une or D ece mber of 2000, and that her c hance s for survivingwould have be en better had this treatment star

ted in J une 2000. Put another w ay , Dr. Pfister' s testimony pointed to specific tr eatment pr ocedur es ( i.e. , radiation and chemother apy ) that we re de lay ed by

Dr. L emay ' s neg lige nt failure to diagnose Tina' s canc er in June 2000, thereby incre asingthe risk of de ath and de cre asingTina' s chanc es of survival. 6 That is sufficie nt to establish a prima facie case of ca usation under Holton and to withstand a motion for direc ted ver dict. See, e.g. , Perke y , 2013 I LApp (2d) 120470, ¶ ¶ 64-65 ; see g ener ally W

alton , 388 I ll. App. 3d at 67-68; Johnson v. Loyola Univ ersity Me dical Center, 384 I ll. App. 3d 115, 122-24 (2008). ¶ 25 The de fenda

nt arg ues that a dire cted ve rdict wa s proper in this case bec ause D r. Pfister failed to c onnect the sur

vival rate statistics to Tina's pa rticular c ase, the reby

leavinga fatal g ap in Hemming er' s causation evidence . We disag ree . Dr. Pfister e x pressly connec ted the survival r ate statistics to Tina's c ase by opining that Dr . L eMay' s neg lige nt failure to diagnose Tina' s cer vical
canc er in June 2000 cause d Tina' s chanc es for survival to decr ease . Dr. Pfister ba sed this opinion on the Amer ican Canc er Socie ty ' s survival rate tables and on he r profe ssional experience ,

6 That ar guably

distinguishes this case from ca ses in which our a ppellate c ourt held that a direc ted ver dict for the de fenda nt was prope r, such a s Townsend v. University of Chicago Hospitals , 318 I ll. App. 3d 406, 408 (2001) and Aguilera v. Mount Sinai Hospital Medical Center , 293 I ll. App. 3d 967 (1997). Howe ver, to the e x tent that these c ases a re in tension with Perke yand our holdingin this case, we decline to f ollow them. 15knowledg e, and tr aining . Dr. Pfister did not mere ly cite a ta ble of a g g reg ate surviva l rates f or a g ener al population; rather , she re lied on that ty pe of infor

mation and on her

own trainingand experience in offer ing a

n opinion on Tina'

s diminis hed cha

nce f or survival. It was appr opriate for Dr . Pfister to base he r ca usation opinion, in part, on survival rate statistics. S ee Perke y , 2013 I LApp (2d) 120470, ¶

¶ 64-65. When viewe d in the aspec t most favorable to Hemminge r, Dr. Pfister' s opinion established a prima facie case of proximate causation and was ther efor e sufficie nt to forestall a motion for dire cted ve rdict. See Perke y , 2013 I LApp (2d) 120470, ¶ ¶ 64- 65. ¶ 26 We rec og nize that our holding is ar guably in tension with Ayala v. M urad , 367 I ll. App. 3d 591 (2006), a

case upon which the de fenda nts rely . InAyala , the plaintiff' s dece dent (Michelle) died of meta static ovaria n canc er. Miche lle' s mother, as spec ial administrator of Michelle' s estate, sue d Michelle' s former patholog ist, alleg ing that his deviation from the standard of

car e dela y ed the star

t of Michelle' s treatment a nd resulted in a de cre ased c hance of survival. B efor e trial, the tria l court g rante d the def endant' s motion in limine barr ing the plaintiff' s medical e x pert fr om testifying " as to what the c ourse of treatment would have be en for Michelle a

nd how she mig ht have done had she r ece ived treatment sooner." Id. at 595. During his trial testimony , the plaintiff' s expert relied upon F I GO survival r ate statistics to support his
causation opinion. Id. at 602. Specific ally , the expert testified to a re asonable deg ree of medica l
cer tainty that Michelle most likely had a sta g e IA tumor in April 1998, which, ac cordingto the FI GO statistics, had a sur vival rate of 80%, a

nd that by September 1999 ( when Miche lle' s canc er was fina lly

diag nosed), he r ca

ncer had re ache d stag e IV, which ha d a survival r ate of less than 10%. Id. After

the close of

the plaintiff' s case -in-chie f, the trial c ourt grante d a dire cted ve rdict

16for the de fenda nts. On appea l, our appe llate cour t ag ree d that the plaintiff' s evidenc e wa s insufficient a s a matter of law. Id. Our a

ppellate c ourt held that the plaintiff' s expert "c ould only testify in ge nera l terms about the F I GO stag ing sy stem as he wa s not allowed, base d upon the trial court' s motion in limine , to testify as to what the c ourse of

trea tment for Miche lle would have be en, and how

she mig ht have done if she had r ece ived treatment sooner, and to c onnect the FI GO statistics to Michelle' s case ." Id. Acc ording ly , our appe llate cour t concluded that the trial court' s motion in limine prejudice d the plaintiff bec ause it pre cluded he r expert from showing that the def

endant' s alleg ed deviation from the standar d of ca re pr ox imately

cause d Michelle' s injuries, and it rema

nded for a new trial. Id. ¶ 27 This case is arguably distinguishable f

rom Ayala beca

use, unlike the e x pert in Ayala , Dr. Pfister opined that Tina'

s chanc es of surviva l dropped by the per centa g es listed in the survival rate statistics, wherea s the expert in Ayala mere ly stag ed Miche lle' s canc er at various time periods and listed the sur vival rate s associate d with those stag es. Althoug h the expert in Ayala testified in g ener al terms that the de fenda nt's de lay in treatingMichelle' s canc er " substantially reduc ed [Michelle' s] chances of surviving he r ca

ncer ," r educe d her life expectancy , and lessene d the ef fec tiveness of tre atment, due to the tria l court' s motion in limine he wa s unable to tie the FI GO survival r ate statistics to Michelle' s case with the deg ree of spec ificity that Dr. Pfister did in this case. In any

event, to the e x tent that our holdingconflicts with Ayala , we de cline to follow it. W e find the c ourt' s rea soning in Perke yto be more sound a

nd more pe rsuasive. ¶ 28 In challeng ing the leg al suffic iency of Dr. Pfister ' s causation opinion, t he def endants also point to severa l conce ssions made by Dr. Pfister. F or example, Dr. Pfister a cknowledg ed that cer tain fac tors particula

r to an individual' s canc er ( such as the c ance r' s histological

17char acte ristics, its degr ee of differ entiation, its responsiveness to trea tment, and whethe r the
canc er is exophy

tic or endophy

tic) may impact that individual's sur vival rate , but she conc eded that she lac ked the e x pertise to testify about the ef

fec t of any

of these f actor s in Tina' s case . In addition, Dr. Pfister agree d with the Americ an Canc er Socie ty ' s statement that its survival rate tables " cannot pr edict what will happen in any particula r per son' s case ." Mor eover , Dr. Pfister
conce ded that ca

ncer g rows at diff

ere nt rates in diffe rent pe ople, and that ther e is no way to tell how fa st it wil l gr ow in any particula r patient. The defe ndant' s argue that these conce ssions entitled them to a direc ted ver dict on the issue of c ausation. ¶ 29 We disag ree . Although the conce ssions made by Dr. Pfister mig ht affe ct the weight that the jury might choose to assign to he r ca usation opinion, they

do not rende r Dr. Pfister ' s opinion insufficient to establish proximate causation as a matter of law. The jury

should have be en allowed to conside r and w eig h all of the e vidence , including D r. Pfister' s opinion. I t is the jury ' s province to weig h the evidenc e pre sented at trial. As noted above , a dire cted ve rdict is inappropriate when the plaintiff has pre sented some evidenc e in support of e ach e ssential element of his or her

claim. Perke

y , 2013 I LApp (2d) 120470, ¶ 63; Davis , 405 I ll. App. 3d at 31. In rulingon a motion for a dir ecte d verdic t, a trial cour t may not weigh the evidenc e, and it must consider the evidenc e, and a ny infere nces the ref

rom, in the light most favor able to the pa rty resistingthe motion. Maple , 151 I ll. 2d at 453. When Dr. Pfister' s testimony is considere d in the light most favor able to He mminger , it provides evidenc e of c ausation suffic ient to withstand a direc ted ver dict. ¶ 30 The de fenda

nts also call into question Dr. Pfister' s expertise and her competenc e to rende r a c ausation opinion in this case. F or example, the def endants note that Dr. Pfister wa s not
18a g y

necolog ical oncolog ist and that she had e ncounter ed only a " few " pa

tients with cervica l
canc er in he r pra ctice. H oweve r, these c onsiderations mere ly aff ect the w eig ht of Dr. Pfister' s opinion; they

do not rende r her

opinion deficient a s a matter of law. See Moller v. Lipov , 368 I ll. App. 3d 333, 344 (2006) ( "T he basis for an expert' s opinion goe s to the weight of the evide nce, not to its sufficie ncy , and the we ight to be a ssigne d to an expert opinion is for the jury to deter mine in light of the e x pert' s cre dentials and the f actua l basis of his opinion."); see also Snelson v. Kamm , 204 I ll. 2d 1, 26-27 (2003). In any event, the de fenda

nts may not challeng e Dr. Pfister' s qualifications or the f oundation for he r ca

usation opinion in t his appea l beca use they have not c ross-appe aled the tr ial court' s decision to allow Dr. Pfister to of fer a ca usation opinion. 7 ¶ 31 In sum, we conc lude that Hemming er pr esente d enoug h evidenc e to cr eate a triable issue of fa ct on the issue of pr ox imate ca usation. Takingthe evidenc e in the lig ht most favorable to Hemming er, a s we must, we c annot conc lude that his causation evidence failed a s a matter of law. The defe ndants' criticisms of Dr. Pfister' s causation opinion m ere ly g o to the weight

that the jury might ultimately

assig n to that opinion. The jury should not have bee n preve nted from consideringthe evidenc e and de cidingthe issue of c ausation.

7 The de fenda

nts also sugg est that Dr. Pfister' s causation opinion was flawed be cause she g ave a

rang e of possible stag es for Tina' s canc er in June 2000 and was una ble to stag e Tina' s
canc er pr ecise ly

at that time. Howeve r, we have a llowed similar testimony reg ardingcanc er stag ing a nd have he ld that such testimony may be used to de feat a motion for direc ted ver dict on the issue of c ausation in ca ncer case s. See, e.g. , Perke

y , 2013 I LApp (2d) 120470, ¶ ¶ 64-65; see also Moller , 368 I ll. App. 3d at 338, 343-44. 19¶ 32 CONCLUSI ON

¶ 33 For

the fore g oing r easons, we reve rse the judg ment of the c ircuit court of Whit eside County and re mand for a

new tria l. ¶ 34 Reverse d; cause rema nded.

20