NO. 4-07- 0681 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

SANDRA G. D OWNEY, n/k/a SANDRA G. H ART, Plai ntiff-Appe llant, v. GARY DUNNINGTO

N, M.D., an

d SIU PHYS ICIANS AND SURGEONS, INC., Defendants-Appe llees. ) ) ) ) ) ) ) ) Appeal fr

om Circuit C ourt of Sangamo

n County No. 02L331 Honorab le Robert J. Eggers, Judge Pre

siding

.

_____________ _____________ _____________ _____________ _____________

MODIFIED UPON DENIA L OF REH EARING JUSTICE AP

PLETON d

elivered the opini on of the co

urt: Plaintiff, Sandra G. Downey, sued a surgeon, Gary Dunnington, and his employer, Southern Illinois University (SIU) Physicians and Surgeons, Inc., for medi cal malpractice. This is an informed -consent case. The jury returned a verdi ct for the defendants, and plaintiff appeals. She argues the trial court erred in certain rulings it made before and during trial. She also argues the verd ict is against the manifest weight of the evid

ence an d, for that reason, the court s hould have

granted her a ne w trial. We find error in two evidentiary rulings; but we conclude that if the court had ruled the other way, the verdict would have been the same. Bec ause the verdict has some basis i n the evidence, we find no abuse of discre tion in the denial of plaintiff's motion for a new trial. The

refore, we

affirm the

judgment. I. BACK GROUND A. The Second Amended Complai nt- 2 - The second amended c omplaint has two counts. The first count is against Dunnington and sounds in professional negligence. The se cond count is against SIU Physicians and Surgeons, Inc., a nd sounds in respondeat superior

. The factual allegations in count I, incorporated into count II, are as follows. On February 14, 2000, plaintiff had an appointment with a physi cian, Elvin Zook (who is

not a par

ty to this c

ase). Pla intiff's moth

er, Betty Hart, ca me along w

ith her to this

appointm

ent, and Zook wrote d

own in pla

intiff's me

dical r ecords that Betty had a h istory of b

ilateral breast c

ancer. Actually, th

at informa

tion was i ncorrec

t: Betty never ha d canc er in both

breasts . Zook refe

rred pla intiff to Dunn

ington, a nd she we

nt to her appointment with him on February 16, 2000. Dunnington wrote the same erroneous information in plaintiff's medical records--that her mother h ad bilateral breast c ancer. He also

wrote that p

laintiff's m

other and

sister b oth had a

history o

f ovarian cancer. That information likewise was in correct: neither of them ever had ovarian cance r. Given th

e family m

edica l history a

s Dunning

ton unders

tood it, pla

intiff

was a ca ndidate for geneti c testing

to determ

ine wheth

er she wa

s geneti cally predis posed to d

evelop bre

ast canc er. Dunni ngton told h

er that the

Departme

nt of Public Aid would not cover genetic testing. He failed to inform her, however, of the grants that were available to cover genetic testing. He recommend ed bilateral prophylactic mastectomies "as a treatment option." Plai ntiff alleges "[i]t was not the accepted standard of care, a mong reasonably well[-]qualified surgeons[,] to recommend prophylactic mastectomies for patients who had risk factors si milar to [plaintiff's] actual risk facto

rs." Rel ying on Dun

nington's erroneous

advice and "una

ware that she was not at very high risk for contracting breast cancer," plain tiff agreed to bilateral prophylactic- 3 -

mastectomies, which Dunnington performed on March 17, 200 0. In the same surgery, Zook inserted breast implants and reconstructed plaintiff's breasts. A pathological examination of breast tissue from the surgery revealed no malignanc y. Paragraph 23 of counts I and II accuses Dunnington of medica l malpractice. It reads as follows:

"23. *** [A]t the same time and place mentioned in the preceding paragraphs, the [d]efenda nt, Gary Dunnington, M.D., notwithstanding his duty to act as a reasonably careful physician, committed one or more of the [following] negligent acts or omissions:

(a) failed to properly

investig ate [p]laintiff's family history of cancer[,] (b) failed to refer [p]laintiff for genetic testing[,] (c) allowed

consid erations of [p]lainti ff's ability to pay for genetic testing to affect the manner in which he presented treatment options to the [p]laintiff[,] (d) failed to inform [p]laintiff that grants were available to obtain genetic testing[,] [and] (e) performed prophylactic

mastecto mies on th

e [p]lainti ff without- 4 - sufficient medical indications." The second amended c omplaint alleged that as a result of such negligence, "both of [p]laintiff's breasts were removed and breast implants were inserted[;] [she] developed seroma and a staphy loccus infection[,] requiring removal of the implants and further hospitalization[;] [she] has been permanently disfigured for life[;] [and she] underwent removal of her ovaries and uterus." In further consequence, she "miss ed significant time from work endeavoring to be healed of her injuries" ; she "[has] experienced[,] and will continue to experienc e[,] pain and suffering"; and she has incurred medical bills and will continue to incur them. B. The Affirmative Defense The affir mative d efense a lleges tha

t the misi nformatio

n was pla

intiff's fault. Defendants plead as follows:

"1. Sand ra Downey

had a d uty to provid

e accura te information to the [d]efendants. 2. Sandr a Downey gave ina

ccurate i nformatio

n regarding her personal and family hi story. 3. In reliance on the information Sandra Downey provided, the [d]efendants offered treatment options[,] including bilateral prophylactic mastectomies."

C. Defendants' Motion in Limine On February 22, 2007, defendants filed a motion in limine, in which they sought to bar plaintiff from suggesting to the jury that Dunnington declined to refer her for geneti c counse

ling bec ause of he

r lack of fund

s. Spec ifically , the motio

n sought to- 5 -

bar the foll owing alle

gations fr

om trial: "4. Dr. D unnington d

id not re fer Sand ra Downey

for genetic counseli ng beca

use Medi caid/[p]ublic [a]id would not cover th

e cost of ge

netic tes ting. 5. Dr. Dunni ngton did

not refer S andra D owney for genetic counseling and testing because she was unable to pay for those services." On February 23, 2007, the trial court held a hearing on the motion in limine . Defendants' attorney told the court he was concerned that in her dis covery deposition, plaintiff's medical expert, Barbara L. Weber, had offered an opinion in whic h she assumed facts having no basis i n the evidence: she opined it would be a breach of the standar d of care to refuse to r

efer plai ntiff for gen

etic testing on the g

round that plaintiff could not pa

y for it. B ut, accor

ding to d efendan ts' attorney

, the rec ord was d

evoid of evidenc e that mon

ey had anythin

g to do with Dunnington 's not refer ring plai ntiff for genetic testing. Defendants' attorney quoted Weber's discovery deposition, in whi ch he asked her the following question:

"Q. What is your understanding o[f] the reasons Sandra Downey d

id not purs

ue geneti c testing

? * * * [A.] My interpretation of the record[,] including the deposition of Dr. Dunnington[,] was that it was his impression that she was very likely to have a mutation and it was very unlikely that Medicaid would cover the cost of her- 6 - testing[] and, therefore, he didn't follow up on referring her to the gene

tic couns elors. Not th

at it did n't happe

n[,] but I

am not awa

re that he

tried to r

efer her and she refused to

go. It was my impression that he never referred he r because of the reasons I just stated." In Weber's opinion, "decisions about taking care of patients sh ould not be made on the basis of their ability to pay." Defenda nts' attorney asked her: "Q. And Dr. Dunnin

gton and D r. Zook di d not do th at, agreed? A. My interpretation[,] as is on the record previously[,] is that one reason, if not the reason, that Dr. Dunnington did not refer Sandra Downey to the genetic counselor

s was hi s conce

rn that sh

e was not a

ble to pay

for that service and for the associated gene tic testing. That was a significant factor. From my interpretation of what I have been provide d[,] that pla

yed a s ubstantia

l role in th

e decision not to send her[,] and I don't believe that's the standard of care. And I do believe th

at if he s ent her[,] n

either Dr

. Dunningto

n nor Sandra Downey would be in the mess that they are in right this moment." Defendants' attorney argued to the trial court that the record contained no evidenc e to suppor

t Weber's " interpre

tation"- -there wa

s no evid ence tha t Dunnington- 7 -

tried to dissuade plaintiff from undergoing genetic testing, let alone that he did so because of her poverty. Citing our decision in Coffey v. B rodsky , 165 Ill . App. 3d 14, 24, 518 N.E.2d

638, 644 (1

987), he ar

gued that a

n exper t should not " offer[] an op inion about *** facts which didn't exist." Just because Dunnington told plaintiff that public aid would

not cover g

enetic te sting, it d

id not follow that he d

enied h er geneti c testing

; he was obligated to warn her that some procedures might not be covered . Defendants' attorney quoted Dunnington's discovery deposition, in which plaintiff's attorney referred to her cli ent's "opt[i ng] not to ha ve" gene tic testin g: "Q. Now, given the fact that Sandy didn't have money for the BR CA 1 [(brea

st cance r gene 1)] te

sting, do you believe i t was a re

asonable decis ion on he

r part to op

t not to have it? A. Again, I try [to be] very careful[,] as a breast[-]cancer surgeon[,] not to judge people's choices, because I'm deali ng almost d

aily with patients [to whom] I've given re commend

ations a nd [whom I'v

e] allow[ed ] *** to make choices for whatever reasons they may choose. Usually[,] when a patient chooses not to have genetic testing, th

e reaso n is that s

he belie ves[--]a nd we focus

on this discussion as we're talking about it[--]usually[,] she believes that it would not impact her decision. And my assumption here would have been[] that Sandra had pretty much[,] in her mind[,] committed that- 8 - that's the operation she wanted. In my discussion with her[,] it was very clear she ha d already given a lo

t of thought ab

out this. Sh

e had ta lked to Doctor Green about it[--or to] Doctor Zook[,] at least[,] about the reconstructive options[--]and she was very emphatic that this option, in her opinion, was the bes t one for her. And[,] so[,] I can only assume that's probably why the genetic testing was not a major factor, particularly when I said[] she still would be [at] an increased risk even if it were negative. Q. You don't have any firsthand knowledge[,] though, of *** the

*** spe cific re ason why

she [did ] not opt[] for it? A. That's c

orrect. Q. And, in fact, i f it was the cost, the money, y

ou wouldn't have

any rea son to doubt that, would y ou? A. No." Defendants' attorney also cited Dunnington's testimony that he was "very careful not to make decisions, recommendations, bas ed on whether or not there [would] be payment for a procedure that [he did]. It [did not] enter into [his] decision." In sum, defendants' attorney argued, all Dunnington did was simply "la[y] it on the line that if [p]ublic [a]id [did not] cover it, you may be personally responsible. [Plaintiff] came back. Sh e chose the option

of surgery

. She di dn't choos

e geneti c testing

, and it w

asn't a- 9 -

matter of cost."

Plaintiff's attorney responded by citing plaintiff's testimony, in her discovery deposition, that the reason why she chose not to undergo genetic testing was she lacked the means of paying for it. Plaintiff's attorney also quoted the following question and answer in Dunnington's deposition:

"Q. Would you agree that if Sandy didn't have the $2,000, *** the BRCA 1[/] BRCA [2] testing was not an option for h

er[?] She did n't have the

money, s

he couldn 't get the tes

t? A. Correct." After reviewing the testimony with the attorneys and hearing their arguments

, the tria l court saw n

o eviden ce that pl aintiff's la

ck of funds wa

s the rea son why Dunnin

gton did not refer h

er for gen

etic testing (although

lack of fund

s might we

ll have bee n the rea son why s

he dec lined ge netic tes ting); Dunn

ington me

rely told p

laintiff an economic fact: these were ex pensive procedures, and she would have to pay for any procedures that public aid did not cover. Plaintiff's attorney responded:

"MS. de S AINT PHALLE: But h e also told

her[,] ['W]e can take off your breasts. We can chop off your breasts and take your ov

aries, but we will co

ver that. We

will cover

that, so you won't have to pay for that option. You will have to pay for the gen

etic testi ng, but[,] on th e other ha

nd, if we ta

ke off your brea

sts and o varies, you won't ha

ve to pay fo

r it.[']" The court wa

s unpersua

ded. It s eemed to the court th

at plainti ff was tryin

g to make- 10 -

Dunnington responsible for financial realities beyond his c ontrol. The court saw no evidenc e, from the

deposi tions, tha

t plaintiff c

hose gen etic testing but Dunnin gton vetoed tha

t choice because of her ina

bility to pa

y; rathe r, it appe ared tha t plaintiff herself d eclined genetic testing be

cause sh e could no

t pay. La

ck of money

might ha

ve motivated her, but it did not motivate Dunnington. Therefore, the court granted paragraphs 4 and 5 of defenda nts' motion in limine

. D. The Stri king of Tes

timony from

Weber's E videnc

e Deposi tion 1. Objections on the Grounds of Irrelevancy and Violation of the Order in Limine

In a hearing on March 8, 2007, the trial court sustained the relevancy objections that defendants' attorney made on February 27, 200 7, in Weber's evidence deposition. In her brief, plaintiff complains of the consequent striking of the following testimony

from the d

epositio n (we quote th

e page of the reco

rd that sh

e cites): "BY MS. de SAINT PHALLE: Q. Doctor, the--I want you to assume that one of the

reasons why Dr. Dun

nington d

idn't sen d Sandr a Downey for genetic counseling was because she could not pay for genetic testing. If, in fact, Dr. Dunnington did that, would that conduct fall within the standard of care of a reasonabl[y] careful surgeon at an academic medi cal center? MR. HARLESS [(defe

ndants' a ttorney)]: I object to that question because that's been the subject of a motion in limine [] and I believe there are no facts upon which she could base an opinion on that topic or on that opinion [ sic ].- 11 - MS. de SAINT PHALLE: Okay. Q. Do you remember the question? A. No. Q. Okay. I will read it again. MR. HARLESS: Just fo r the rec ord, let me

just show my objec tion now so

I won't have

to interrup

t your questi on and answer again. Is that fair? MS. de SA

INT PHAL LE: Sure

, right. BY MS. de SAINT PHALLE: Q. Doctor, I want you to assume that one of the

reasons why Dr. Dun

nington d

idn't sen d Sandr a Downey for genetic counseling was because Sandra could not--indicated that she could not pay for the genetic testing. If Dr. Dunnington did that, would that conduct fall within the standard of care of a reasonably ca reful surgeon practicing at an academic med

ical center? MR. HARLESS: Show my objection. A. I belie ve it would n

ot. Q. And could you tell me why? MR. HARLESS: Same objection. A. I think there are two answers. The first is that there's great value to genetic counseling[,] whether the genetic testing is actually

performe

d or not. Ma

ny people- 12 - will see a genetic counselor and not ultimately have the testing for a variety of reasons. I also bel ieve tha

t making m

edica l decis ions bas ed on a physician['s] or surgeon's opinion on what might or might not be affordable to the patient is not the standard of care[,] either. Q. All right. Let me give you another assumption. I want you to a

ssume whe

ther--a ssume tha

t Dr. Dunnin

gton told the pa

tient that i f she wante

d to have the gene

tic testin g, she would h

ave to be a

ble to pay

the $2,00

0 for the te

st but, on the other hand, *** if she chose to have the bilateral prophyla ctic ma stectomi es, *** she would n ot have to p

ay for that procedure. Do you have

an opini on, to a re

asonable degree of medical certainty, as to whether that advice conforms to the standard of care that would be--that would be made by a reasonably careful surgeon at an academic medical center? MR. HARLESS: Let me tender an objection to the hypotheti cal questi on beca use it doe

s not state

materia l facts that are in evidence in this ca se, at least in the discovery depositions of this case, and it ex cludes important material facts and, therefore, is incomplete. I would also object because this has been the subject of a motion in limine and- 13 - has been ruled, at least at this point, to be inadmissi ble. BY MS. de SAINT PHALLE: Q. Go ahead. A. I belie ve that would

be far outsi de the sta

ndard o f care and that it would actually be coercive and wrong to the patient. Q. Why is

that? MR. HARLESS: Same objection. A. Beca use this p

atient wa

s very muc

h afraid of getting cancer. She had very little money, and s he came in asking a bout the prop

hylactic surgery. She would th en have been told

, ['Y]es, you c

an eithe r have wh

at you are

asking for free[,] or y

ou can pa

y $2,000

for a test to see if yo

u need it. ['] I just don't think that's a fair position to put a patient in. I don't think they could make a good decision under those circumstances. Q. All right." As the trial court explained to counsel, it was sustaining defendants' objections and striking the above-quoted text from Weber's evidence d eposition because "it would [have been] conjecture on anyone's part to determine why it [was that Dunnington] didn't re

fer [plain

tiff for gene

tic couns eling]. H e has sa

id that h e didn't refer her because she didn't want to go--she wanted to have the surgeries, I believe." Defenda nts' attorne

y adde d: "She chose n ot to have th

e geneti c testing

, and sh e chose to- 14 -

have the surgery instead. She chose among her options." "Yeah," the court said in agreement. In respo

nse, pla intiff's atto

rney poi nted out the

following po

rtions of Dunnington's discovery deposition:

"Q. Well, given the fact that you knew [plaintiff] was on [p]ublic [a]id, you knew that she had limited funds by definiti on, corre

ct? A. That's c

orrect. Q. Have you had patients, other patients on [p]ublic [a]id[,] [who] have, at that period of time, obtained BRCA 1/BRCA 2

testing? A. I can't give a definite answer, but I can't recall any that have. * * * Q. Would you agree that if Sandy didn't have the $2,000, *** the BRCA 1[/]BRCA [2] testing was not an option for her? She did n't have the

money, s

he couldn 't get the tes

t? A. Correc

t. * * * Q. You don't have any firsthand knowledge[,] though[,] of the reason why, specific reason why she [did] not opt[] for it?- 15 - A. That's c

orrect. Q. And, in fact, i f it was the cost, the money, y

ou wouldn't have

any rea son to doubt that, would y ou? A. No." Dunnington

further tes

tified, i n his de

position , that he n

ever told p

laintiff, one way or the other, whether she should have prophylactic ma stectomies: "My role as a clinician is to say, ['H]ere are the options, he re are the factors you should consider in the discussion w

ith your ph

ysicians and you r family, an d you shoul d make the decisio n." He merely told plaintiff that if she chose prophylactic mastectomies, he " believe[d] that would have

been a r easona ble choi ce." Whe

n explaining the o

ptions to h

er, he d id not believe public aid would cover prophylactic mastectomies a ny more than it would cover genetic testing.

Plaintiff's attorney asked Dunnington in his deposition: "Q. Well, wh

y did y ou tell her[,] then--i f you didn 't tell her that you didn't think [p]ublic [a]id would cover the prophylactic mastectomies, why did you tell her that [p]ublic [a]id would

n't cover th

e BRCA 1

/BRCA 2 te

sting? A. Very simple reason[:] because I knew the only way for her to ge

t BRCA 1 te

sting was

for her to p

ay out-ofpocket. However, I was quite

confide nt the hosp

ital would cover the charge s[] as well a

s the pra ctice pl an. We routinely treat patients who have no ability to pay if we believe it's a- 16 - medical necessity. So[,] the operation could have been done without her ability to pay, but the BRCA testing could not have [been done]. Q. Well, the

--don't y ou think it wo

uld be sig

nifican t to a patient to know whether or not [p]ublic [a]id would cover the operation? A. That's w

hy, once Sandy m

ade the decis ion, we began[--]again, as we always do[--]at least a request. Thi s request wa

s submitte

d by Docto

r Zook's offi ce[,] and

we fully anticipated the answer would be, ['W]ill not cover,['] at which time we would have Sandra go to the practice plan a nd discuss payment and how it would have been de alt with. And we were very surprised that they[--]essentially, in this case, again, for the first time that I can reca ll[--]agreed that it was medically necessary and elected to pay for the procedure." Still unpersuaded, the trial court adhered to its ruling: insomuch as Weber opined , in her evidence deposition, that Dunnington violated the standard of care by denying genetic counseli ng to plain

tiff on the gr

ound that s

he could n

ot pay for i

t, that opin

ion was irrelevant, and should be stricken, because its factual predi cate lacked any basis in the evidence. 2. Objecti on on the Ground That the Answer Was Unrespon sive to the Question- 17 - In Weber's evidence deposition, defend ants' attorney asked Weber: "Q. Doctor, isn't it true that even if Sandra Downey had undergone genetic counseling, you can't say that she would have

had gen etic testing, can y

ou? A. No, but I can say that if I think she had a bilateral prophyla ctic ma stectomy[] in the ab

sence o f genetic testing, that would have been a mistake. MR. HARLESS: I move to strike her answer as nonresponsive. Q. Isn't it true, Dr. Weber, that even if Sandra Downey had undergone genetic counseling, you can't say that she would have

had gen etic testing, can y

ou? A. No." In the hearing of March 8, 2007, defendan ts' attorney moved to strike the first question and answer, quoted above, on the ground that the answer was unresponsive to the question (the same objection motion he had mad e in the evidence deposition itself). Plaintiff's attorney opposed the motion for two reasons: the answer was responsive to the question, and, alternatively, it was "inappropria te *** to ask an outside wi

tness wha

t Sandra Downey would

have don

e," for the

outside wi

tness's opinion in that re

spect would

have bee

n irrele vant and speculati

ve. Over plaintiff's objection, the trial court granted defendants' motion to strike.

E. Defendants' Motion for Partial Summary Judgment On March 5, 2007, defendants filed a motion for summary judgment, in- 18 -

which they sought a summary determination in their favor on para graphs 23(c) and (d) of counts I and II of the second amended complai nt. See 735 ILCS 5/2-1005(d) (West 2006). The motion stated as follows:

"1. Judgme

nt should be

entered in favor of [d]efendants because there is no genuine issue a s to any materia l fact that D r. Dunning

ton did n

ot allow considerations of [p]laintiff's ability to pay for genetic testing to affect the manner in which he presented treatment options to the [p]lai ntiff. 2. Judgmen

t should als

o be enter

ed in fa vor of [d]efendants because there is no genuine issue a s to any materia l fact that th

e [d]efend

ants did not have a

duty to inform the [p]laintiff that grants were available to obtain genetic testing." The trial court granted the motion for partial summary judgment on March 8, 2007.

F. Amendment of the Second Amended Complaint On March 13, 2007, plaintiff filed a motion to amend the se cond amended complaint "to replace the term 'genetic testing' with the term 'genetic counseling' in paragraph 23(b) of [c]ount I ***, to eliminate subparagraphs (c) and (d) from the same paragra ph [( i.e. , the two subparagraphs on which the trial court had entered partial summary judgment)], [and] to conform the pleadings to the pretrial rulings made by the court and the proof expected in this case." Simultaneously, plaintiff filed the proposed amendment, which changed p aragraph 23 to read as follows:- 19 - "23. *** [A]t the same time and place mentioned in the preceding paragraphs, the [d]efenda nt, Gary Dunnington, M.D., notwithstanding his duty to act as a reasonably careful physician, committed one or more of the [following] negligent acts or omissions:

(a) failed to properly

investig ate [p]laintiff's family history of cancer[,] (b) failed to refer [p]laintiff for genetic counseling[,] [and] (c) performed prophylactic

mastecto mies on th

e [p]lainti ff without sufficient medical indications." On March 15, 2007, defendants filed a n answer to the amendment of the second amended complai nt, in which they denied the allegations in modified paragraph 23. G. The Testimony at Trial 1. Plaintiff In 1967, wh

en plain tiff was five

years o ld, her m other had

surgery fo

r breast cancer. At age 10, plaintiff found some "balloon things" in her m other's dresser drawer, and sometime later, her mother exp lained to her their purpose: she had undergone mastectomies to prevent a recurrence of canc er. Thus, from an early age, plaintiff was aware of breast cancer in her family.

In 1996, when plaintiff was 34 years old, she discovered a lump in her right- 20 -

breast. A mammogram revealed an abnorma lity, but a biopsy revealed the lump to be benign. At this very time, her grandmother was undergoing ra diation therapy for breast

cancer. In 1998, plaintiff found another lump in her breast, and the lump kept getting bigger and was causing a "burning, fiery feeling." It di d not show up in a mammogram, and an ultrasound revealed no malignanc y. The diagnosis was fibrocystic changes in the breasts.

Plaintiff continued doing self-examinations and found another lump, which likewise kept getting bigger but was invisible to mammogram and ultrasound. Her obstetrician/gynecologist in Jacksonville, Guy Audet, referred her to a local surgeon, James L. Green, who requested that she bring with her, to her app ointment, a written history of the

occurren

ce of can cer in h er family . Plainti ff's mother, Betty Ha rt, wrote the history in longhand on a single sheet of paper and brought it with her when she acc ompanie d plainti ff to Green's o

ffice on Ja

nuary 19, 2

000. Th e docume

nt lists plaintiff's relatives on her mother's side of the family, along with the various cancers from whic

h they suffe

red over the past h

alf-cen tury. Unde

r the hea ding " Mother Betty Hart ," the document reads: "Breast Ca ncer 1967" and "Ovarian Canc er 1979." Green told plaintiff that because of her family history of breast cancer, she was "cons iderably at high risk in the general population." He suggested that she cons ider either bilateral prophyla ctic ma stectomi es or prop

hylactic Tamoxi fen. He w

arned h er that the

drug Tamoxife

n was "ex

perimen tal and th

at the sid

e effects were ris

ky." At this point, plaintiff wa

s "thinki ng about whe

ther prop

hylactic mastecto

mies would

be a rea sonable option." She read an article stating: "In women with a high risk of breast cancer on the- 21 -

basis of family history, prophylactic mastectomy can significantly reduce the incidenc e of breast cancer."

Green refe

rred pla intiff to an

other surge

on, Elvin Zook of the I nstitute of Plastic a nd Reco nstructive

Surgery a

t SIU, for a b

iopsy. S he went to s

ee Zook on February 14, 2000, and her mother c ame along, bringing the handwritten family history. Plaintiff's

mother wa

s prese nt and lis

tened as plaintiff r

ecited the family

history to medical personnel. Zook's resident wrote down that plaintiff's mother "developed bilateral breast cancer and had bilateral mastectomies[] at age 27." Zook advised plaintiff that before they made a decision on recons tructive surgery, she should see a breast surgeon to determine whether she was even a c andidate for bilateral prophylactic mastectomies. He referred her to Dunnington.

Before seeing Dunnington, plaintiff talked with her mother, and, together, they weighed the options. Her mother urged her to "keep an open mind and to consider mastectomy as an option."

When plaintiff went to see Dunnington on February 16, 2000, she brought her mammogram films as well as the family history her mother ha d written out. Again, her mother accompanied her to the appointment. In Dunnington's office, plaintiff filled out a form en

titled "H istory." The form s aid: " Please a

nswer all q

uestions to

the best o

f your knowledge. The information provided by you will be used by your doctor in his/her decisions regarding your care ." Plaintiff wrote on the form that she had been having breast pain and a "yellow white disch arge" from the nipples and that the lump on her right breast had been growing bigger and in creasingly painful. She answered yes to the question of whether she had "a family history of breast canc er" and, in explanation,- 22 -

wrote: "Mother [b]oth [b]reast[s] at 26" and "Grandmother [at] 82." Although her mother was present at the appointment, plaintiff never asked her if her ca ncer had, in fact, been in both breasts. As it turned out, plaintiff was confused: her mother had cancer in only one breast, although she underwent a bilateral ma stectomy. At trial, defendants' attorney asked plaintiff what she had said i n her discovery deposition about the handwritten notation, in the "His tory" form, "Mother [b]oth [b]reast[s] at 26." Plaintiff's att orney objected on the ground that the proposed impeachment concerned a collateral matter; the trial court overruled the objection. Plaintiff answered that in her deposition, she de nied writing those words and professed to be ignorant of who had written them. She admitted her deposition testimony wa s incorrect in that respect and that she hers elf was the one who had written, "Mother [b]oth [b]reast[s] at 26." Defendants' attorney asked her if she had told a falsehood in her deposition. Plaintiff answered: "I felt after 100 pages of de position, I was scared, and I was intimidated by you." Defenda nts' attorney then asked her if she was aware that defendants had hired a ha ndwriting expert from St. Louis, William Storer, who was prepared to testify that the handwriting in question was plaintiff's. Defendants' attorney showed plaintiff the notice of this witness's expected appeara nce and testimony, which he had mailed to plaintiff's attorney several months ago. Plaintiff answered she was unaware of this witness.

On February 16, 2000, after plaintiff completed the "History" form, Dunnington reviewed the information therein with her and her mother, in cluding the representation that her mother had cance r in both breasts at age 26. At the time, Dunnington remarked to plaintiff that "it was a serious family history." This remark- 23 -

struck fear

into plai ntiff, cons

iderin g that Dunni ngton must h ave "se en thousa

nds of women every year." Plaintiff's mother told Dunnington that she had a history of ovarian

cancer and tha t plaintiff's

sister li kewise d

eveloped ovarian cance r at age 2

6. Plainti ff testified she was unclear, at that time, about her sister's medica l history--she knew her sister had undergone a hysterectomy for canc er--and, for that matter, she was unclear about the difference between ovarian, uterine, and cervica l cancer. Only later did plaintiff learn that her mother and sister had cervica l cancer in situ , not ovarian cancer, and that cervical cancer in the family did not increase her own risk for breast ca ncer. Having discussed the family history with plaintiff and he r mother, Dunnington

performe

d a phys ical ex aminati on of plain

tiff, includ

ing the a reas in both breasts where she felt lumps. He found a mass in another are a. He also looked at the mammograms and collected tissue for a biopsy.

After the physical examination, Dunnington discussed with plaintiff three options: (1) Tamoxifen, (2) genetic testing, and (3) bilateral prophylactic mastectomies. Like Green, he warned plaintiff that Tamoxifen had troublesome sid e effects, including blood clots and hypertension. Plaintiff did not think she could afford Tamoxifen, anyway. As for the genetic test, Dunnington told her it would "assist [her] in making [her] dec isions" but "there

was a co st assoc iated wi th that test" and publi c aid wo uld not cover the cost. Alth

ough Dunnin

gton did not disc

ourage pla

intiff from g

enetic te sting, he did not push her toward it, either--and he never asked plaintiff's mother if she was willing to undergo genetic testing. Unlike plaintiff, her mother was employed at the time and had insurance, whic h, according to plaintiff's testimony, would have covered the genetic test. Plaintiff "would have loved to have had this genetic testing," but she- 24 -

lacked the means of purchasing it. Therefore, she c onsidered option No. 3. Plaintiff testified: "A. [Dunni ngton] talked to me about th

e possib ility of prophylactic mastectomy. Q. Okay, tell me, what did he say about the prophylactic mastectomies? A. *** [H]e explained to me that if they remove[d] the tissue[,] *** the outcome would be that I would not get

cancer [or] breas

t cance r[;] it would e

liminate my risk. Q. Did h e tell you whe

ther or not you'd have

to pay for those? A. *** I b

elieve h e said that I wouldn 't have to pa y for them. Q. When Dr. Dunnington mentioned the mastectomies, what was your reaction? A. Well, what any woman's reaction would be. You're scared . *** I th ought that my

risk was so high th

at I should have them. Q. Well, why

did you fe

el that your

risk was so high that you should have them? A. Because *** the family history that my mother had written out[] put us [at] a high risk, and I thought that within the next c

ouple of yea

rs[,] I would g

et canc er[] and I 'd have- 25 - to go through mastecto mies, c hemother

apy[,] or p

ossibly death. * * * Q. What made you decide for the prophylactic mastectomies? A. Well, I d

idn't want to get can

cer[,] for o

ne [thing], and the other two alternatives I couldn't afford. Q. *** [Y]ou mentioned you thought *** you were going to ge

t cance r in the n

ext couple

of years [;] how likel

y did you th

ink you wer

e going to g

et canc er in the next coup

le of years? A. Very likely. Q. All right. If you had known that your risk of getting

cancer over a life

time was 20[%] or 25%, w ould you ha

ve agreed to get bilateral mastectomies? A. No. * * * Q. Did Dr. Dunnington tell you that your life[]time risk of getting bilateral mastectomies [ sic ] was 20[%] or 25[%]? A. No. Q. Did Dun

nington gi

ve you any

specifi c perce

ntage of what your risk factors were?- 26 - A. I belie ve he was

talking in

ranges, but I don't specifically remember." When leaving Dunnington's office on February 16, 2000, plaintiff had no unanswered questions. Later, Dunnington's office called and told her the biopsy h ad come back and the lump in her breast was ben ign. Plaintiff decided she wanted to be safe and that prophylactic mastectomies were the best option for her.

Plaintiff then consulted a gynecologist, Marta Crispins, who "evaluated [her] ini tially for c

onside ration of wh

ether [sh e] had ova

rian ca ncer" (we

quote from Crispin s's repor t). Plainti ff complai ned to Cri spins of " a severa

l[-]year h

istory of le

ft lower quad

rant cra mping an

d bleedi ng." Crispins or dered s ome ima ging studi es of plaintiff's

abdome n, which reveale d that pla

intiff had

a tumor. H aving pre

viously undergone a tubal ligation, plaintiff chose to proceed with a hysterectomy and re moval of her ovaries at the same time as the bilateral mas tectomy and breast reconstructions. She underwent all these surgeries on March 17, 2000

. 2. Plaintiff's Mother and Sister Plaintiff's

mother, B etty Hart, and pla intiff's sister, Ki m Williams on, both testified they would have given Dunnington an authorization for the release of their medical records if he had asked them for one. The sister testified she had developed precancer ous cells a

nd under

gone a hy

sterectom

y but that sh

e never h ad ovari an canc

er or breast cancer. The mother testified that sometime in the 1980s, she developed cervical cancer and underwent a hysterec tomy. She further testified her breast cancer was in the right bre ast alone although sh

e had " problems " in the le ft breast. She did

not know whether she had told plaintiff she had right-sid ed breast cancer as oppose d to bilateral- 27 -

breast cancer, for she "was a private pe rson[] and *** took baths with [her] doors locked and stuff. [She] kn[e]w it wasn't anything to be ashamed of, but [she] was." 3. Dunnington Over plai ntiff's rele

vancy ob jection , the tria l court allowe

d Dunning

ton to testify that he grew up in a small town, his father was a minister, and his mother was a "stay-at-home mom." He further testified he had four children, and he described their educational accomplishments. As for Dunnington himself, he was 53 ye ars old and a surgeon at SIU School of Medicine. He had been practicing in Springfield for 10 years. He was a professor of surgery and the chairm an of the department of surgery. He also was director of the Breast Center at SIU. Most of his practice was d evoted to breast surgery. He also conducted research and had published articles an d books. Dunnington explained that just because an article had been published in a medica l journal, i

t did not n

ecessa rily follow th

at the arti cle set for

th the stan

dard of care. Although Dunnington had "a lot of respect" for Weber, who, like him, was a published author, she was an oncologist rather than a surgeon, and this difference in their sp ecialti es cause

d her an d Dunning

ton to have

differen t views of the

standar d of care. Often, an oncologist did not see a pa tient until after the diagnosis of cancer was made, whereas a surgeon saw patients "a t all stages of activity." "[W]hen other specialists see patients with breast lumps, the first thing they do is find a surgeon, and it's [the sur

geon's] re

sponsib ility to se e those p atients a nd put all th

e informa

tion together and make a decision." The standard of care was a consen sus that had evolved among surgeons as to the most appropriate care. Through his ed ucation, training, and experience as a surgeon, Dunnington knew the standa rd of care for surgeons.- 28 - When plaintiff came into the Breast Center on February 16, 2000, sh e filled out a "History" form, and Dunnington discussed with her and he r mother the notation "Mother [b]oth [b]reast[s] at 26." Plaintiff appeared to him, at the time, to be a reliable source of information. Defendants' attorney asked Dunnington:

"Q. What d

id [plai ntiff and h

er mother] tell you abo ut her family history? A. Well, tha

t her mothe

r develop

ed can cer in b oth breasts. [The] information I received was that it was at the same tim

e. You could

have a c ancer a t one age and thre

e or four years later[,] a subsequent cancer, but [they] communicated to me [that] at age 26, both breasts were involved with cancer[,] requiring a bilateral radical

mastecto my[] and c

hemother

apy--g old treatm

ent would have been chemotherapy[--]and sh e communicated to me the other aspects about ovarian cancer, the mother's canc er, et cetera

. Q. Doctor Weber testified that whether it's one breast or two breasts is really of little significance. Do you agree? A. No, I do

not agree

with that. Q. Can you tell us why you disagree? A. Well, for o

ne [thing], as you look a t indica tions for genetic testing, for example, often they will be very specific that not only

first-de gree rela tive with b

reast ca ncer, but- 29 - often on tha

t list, as w

ell as bil ateral c

ancer, and thin

k about what we said earlier. In order to get a breast ca ncer in one breast at a young age, we have said it requires two hits to get two breast cancers, *** so now we are talking about an even lesser chance of that occurring by age 26, just by chanc e environment, too much estrogen, et cetera , but it becomes less like ly if you ha

ve both bre

asts invo lved in c ancer a t a young age, becomes more likely there's a genetic issue there ." In his consultation report, Dunnington wrote: "At this point, the patient seems very intent on proceeding with bilateral prophylac tic mastectomies." When plaintiff came to see him on February 16, 2000, "it was clea r she had spent a lot of time thinking a

bout this. T

here ha d been r esearc h done wi

th her fam

ily. She [had] talke

d to Dr. Green. She had talked to Dr. Zook. She [had] talked to her mother. She [had] talked to her sister. So there was a fair decisi veness about it, that she was very, very interested and desiring to proceed with prophylactic mastectomy." In fact, the moment Dunnington walked into the examination room, he "looked [at] the reason they [were] there, and it [read], 'Interested in prophylactic mastec tomy'"; he knew that "[his] goal[,] right from th

e beginn ing[,] [was ] to give the

m good soli d reaso

ns for not wa

nting to proceed, and [he] realized[,] after a bit into this encounter[,] [that] it was going to be a challenge." Dunnington agreed that in some cases, orderi ng medical records was necessary--but he insisted this was not such a case. "I had the e vidence that the mother had a premenopausal breast canc er. That was the trigger for genetic testing to be- 30 -

offered and encouraged[;] that's the only trigger that was necessary. Finding out that she really didn't have ovarian canc er wouldn't have changed the need for genetic testing. It wouldn't have changed the benefit of prophylactic mastectomy."

Given the family medical history as desc ribed to him by plaintiff and her mother on February 16, 2000, Dunnington opined that plaintiff had as high a s an 80% chance of developing breast cance r. "[T]hat's the high end of the range," he testified; greater specificity was impossible without genetic testing. Bec ause he had so many patients , he could

not spec ifically remembe

r what he h

ad told pla

intiff, but he

would have followed his established procedure, which was to inform the patient of a rather wide range of risk. He testified: "I would have exp lained it just as I have already, that if all we know is family history, your risk of cancer would be a low of 15[%] but as high as 30%, but if you have genetic testing and you carry the gene, it could be as h igh as 80%." Plaintiff's attorney asked Dunnington: "Q. Now, y

ou would agre

e that ac cording to [plaintiff's] actual family history, *** her risk, given the fact that her mother had breast cancer at an early age[,] age 28[,] was only 1

5%, corre

ct? A. No, that's

absolutely

incorre ct, beca use the wa

y we often do these cases-- Q. Doctor, please." Plaintiff's attorney then impeached him with the testimony he had given in his discovery deposition. She read him the following question and answer from his deposition:

"Q. 'Ques

tion: You me

ntioned what the ri

sk of a- 31 - woman obtaining breast cancer who had e ither a mother or a sister wi th premen

opausal b

reast ca ncer. An swer: It wo

uld be a ran ge. If it's j ust first-d

egree re lative pos

tmenopaus

al, it's proba

bly three times. Wi

th premen

opausal[,] it's between--somewhere between three and five times increased risk, so th

at would mea

n maybe 15% maxi mum, corre

ct--15% maximum[?]' And you answered, 'Correct.' Do you recall those questions and those answers[?] If you want to s

ee it, I c an show i

t to you. A. Yeah, I stated--I've stated earlier it would be a range, and you're picking the low end of that range. * * * Q. Let me ask it again. Doctor, do you recall that question, 'So that would be between three and five times increa sed ris k, so that wo

uld mean m

aybe 15% m

aximum. ' And you a

nswered , 'Correc t?' A. I did." Dunnington wrote a chapter in a medical textbook, wherein he s tated: "'The first major risk factor [for breast cancer] is family history.'" He also wrote that "'[a] strong

family hi

story in a

ssocia tion with a

young age

diagnos is rais es the po ssibili ty of BRCA 1[] (breast cancer gene 1, also associated with ovarian cancer).'" He admitted, at trial, that a woman with a history of breast cancer and ovaria n cancer was 19 times more likely to carry this breast-cancer gene than women with a history of breast cancer- 32 -

alone. Cervical cancer, however, had not been shown to be linked to the breast cancer gene. He admitted that women of limited education might not know the difference between ovarian cancer and c ervical cancer, and he h ad heard of a study finding that patients w

ere only 60% accurate in rep orting hist ories of ov arian cancer. He acknowledged that medical records were a more accurate source than the patient's oral account and that before taking a radical step such as cutting off a woman's breasts, it was necessary to consult "the appropriate medic al records." He agreed that the conjuncti on of canc

ers in p laintiff's fa

mily his tory, as r eprese nted to hi m, was ex

tremely rare (not only premenopausal cancer in both breasts but two women surviving ovarian

cancer ) and tha t if prese nted with a medic

al histor y so exc eptional , he would wa

nt to confirm i t--but "[o]nl

y if it [mad

e] a diffe rence i n what [he was] going to discus

s with the patient or offer to her as options for therapy."

In his ph ysical examin

ation of pla

intiff on Fe

bruary 16, 2000, D unnington found "de

nse fibro cystic m aterial" in her b

reasts; this was

a normal

byproduc

t of menstrual

process es. Lump

y breas ts did no t increa se the risk of canc

er, but the d

ensity of the breasts could increase the likelihood that if cancer d id develop, it would be missed in a mam

mography

. The ris k of missi ng canc

er in a m ammogra

phy went d

own considerably, however, after the patient reached age 50. Although Dunn

ington ne

ver told pla

intiff that h

ers was " the worst fa

mily history he had ever seen" (he knew better than to scare a patient that way), he might have told a colleague something to that effect. He wrote in plaintiff's medical records:

"I have explained to the patient that she repre sents a very complic ated hi story and

family hi

story and

that she i

s clearly- 33 - at signi ficant risk for deve loping bre

ast canc er. We ha

ve talked about the possibility of genetic testing because of her high inc idence of ovaria

n and br east ca ncer in the family

, but because she has recently been declared eligible for Medicaid, this would n

ot be cove

red by th at medic al covera ge. I hav e explained that her risk factors are so significant[] that she would proba

bly be a g

ood can didate for consi deratio

n of bilateral prophylactic total mastectomies ***." In his 20 years as a brea st surgeon, he had treated "only five patients [who] felt very strongly that [bilateral prophylactic mastectomies were] the best option for them."

Genetic testing gives the patient a more definite idea of her risk before she chooses prophylactic mastectomies. It is a blood test performed by a corporation in Utah, Myriad Genetics, Inc., and the test, if it had bee n given, would have been performed on a blood sample from plaintiff's mother, because she was the one who ha d contracted breast cancer. Only if the mother tested p ositive for the breast cancer gene would plaintiff then be tested. If a woman tested positive for the BRCA 1 gene, her chance s of develo

ping bre ast canc er were 80

%. Dunnington admitted that SIU had "genetic counselors as part of the services that it provide[d]" and that "if the patient didn't have the mone y for genetic counseling, as opposed to genetic testing, [SIU's] practice plan would cover it." Although Dunn

ington ag

reed it w as "the fun

ction of a

genetic counselor

to take a c

areful family history," he believed "it would be far outside the standard of ca re for genetic counselors to get medical records." Plaintiff's attorney then showed the jury an SIU- 34 -

videotape that Dunnington himself had commissioned, i n which a genetics counselor, Lisa Rimer, stated as follows:

"We begin with a three[-]generation family history[,] *** documenting all the different types of cancer within the family[,] a

nd[,] hope

fully[,] we ca

n obtain r

ecords to actually document those specific types of cancer. After we get the family history information, you can make a risk assess ment for that woman." Dunnington testified that instead of sending plaintiff to a genetic counselor, he "did the genetic counsel[ing] for her." In his opin ion, a surgeon was best qualified to do genetic counseling and risk assess ment. If plaintiff had "accepted genetic testing," he would ha

ve referr ed her to a geneti c counse

lor, who the

n would hav

e explained to plaintiff, among other matters, the potential implications for her insurability if the genetic test showed she carried the breast cancer gene. Once plaintiff told Dunnington she wished to undergo bilateral prophyla ctic ma stectomi es, he r

eferred her to a gy

necologist, Crisp

ins, for a dvice on whether she also should undergo prophylactic removal of her ovaries. O n March 1, 2000, Crispins wrote Dunnington as follows:

"Thank you for sending Ms. Sandra Downey in consultation. As you will recall, she is a 37-year-old white fema le with a family history suggestive of hereditary breast [and] ovarian cancer family syndrome, and[,] certain ly, prophylactic oophorectomy would be quite reason[able] in this case. I- 35 - have coun

seled thi s patien t regardi ng the ris

ks and be

nefits of a proph

ylactic oophorec

tomy[,] and

she doe s desir e to proceed." Dunnington

agreed that unless

he had consid ered pla intiff to be a cand

idate for prophylactic mastectomies, he would not have referred her to Cris pins. In his operative report, Dunnington described plaintiff as "a 38[-]year[-]old female with a very strong history for ovarian and breast cancer." This was the only indication for bilateral prophylactic mastectomy that he s tated in the report. Another factor that led him to consider this procedure was he r fear of cancer. Dunnington

maintai ned that if he had known that p

laintiff's m

other had

only righ

tsided breast c

ancer a s oppose d to bilate

ral brea st cance r and tha t neither the mothe

r nor the sister had ovarian cance r, it still would have been "reasonable" to discuss prophylactic mastectomies, consideri ng that the mother had premenopausal breast cancer, "which[,] again[,] significantly raise[d] her risk." He admitted, however, that "[t]he case [for mastectomies] would not have been as overwhelming." Apart from her mother's breast cancer, plaintiff had other risk factors--the de nsity of her breasts and their fibrocystic condition, multiple breast biopsies (all of them normal), breast pain, and spontaneous nipple discharge- -but these were not as important as the family history plaintiff represented herself to have.

After Dunnington testified to these risk factors, plaintiff's attorney showed him plaintiff's exhibit No. 24, a newsletter published in 1993 by the Society of Surgical Oncologists (SSO), of which he was a member, and c ontaining an article entitled, "SSO Develops Position Statement on Prophylactic Mastectomies." The article quoted the- 36 -

position statement. Dunnington agreed with SSO's position statement as to what the indications were for bilateral prophylactic mastec tomies. He agreed that "'only rarely is this radical extirpative approac h indicated.'" He agreed that, given plaintiff's actual family hi story, sh e met none

of the cri

teria for th

is proce dure as s et forth in th

e positi on statement. 4. Weber

Plaintiff's expert, Weber, was board-certified in internal med icine and medical oncology. She was a professor of genetics a t the University of Pennsylvania and the director of its breast center. She had published articles on prophylactic

mastecto mies an d breas t-canc er risk- assess

ment in th

e New Engla

nd Journa

l of Medicine and in surgical journals. Sh e had been an invited spe aker at SSO. Weber testified that before performing prophylactic mastectomies, a reasonably careful surgeon should not only obtain but verify the patient's family history and the surgeon then should use a risk-assessme nt tool to determine how likely it was that the patient would develop breast cancer. The incide nce of ovarian cancer in the family gre

atly incr eased the risk th

at the pati ent carr

ied a br east ca ncer gen e, BRCA 1 or 2. If a woman carried that gene, she ha d a 60% to 80% chance of getting breast cancer. That woman's daughter in turn would have a 40% chance of carrying the bre ast cancer gene. In Weber's opinion , Dunningto

n devia ted from the

standar d of care in two ways: (1) fa

iling to se

nd plain tiff to a gen

etic coun selor and

(2) failing

to verify plaintiff's

family hi

story. Ac

cording to Weber, D unnington s hould have

sent plai ntiff to a genetic counselor regardless of whether plaintiff intended to undergo genetic testing.- 37 -

Genetic counselors were specially trained to compile an accurate family history, document it with medical records, and e xplain to the patient what her risk was. As was well known fro

m publishe

d studie s, patie nts tende

d to err i n their a

ccounts of fa

mily medical history, especially with respe ct to gynecologic cancers. There was a vast difference between cervical cance r and ovarian cancer: c ervical cancer, unlike ovarian cancer, did not increas

e the risk for breast cancer. Further, none of the risk assessme nt tools gave more significance to bilateral breast cancer than to one-sided breast cance r; "the pri mary de

termina nt of breas

t cance r risk in families [was] the a

ge of dia gnosis of the first b

reast ca ncer[,] no

matter how

many sub

sequent br

east ca ncers th at person [might] have had." Given plaintiff's actual family history, Weber opined that she had only a 21% chance of developing breast cance r by age 80. In Weber's opinion, plaintiff was not a candidate for prophylactic

mastecto mies, for her actua

l risk of getti ng breas

t cance r was only

20% as c

ompared to the avera

ge risk of 1

2%. Weber d

id not re gard the fear of ca

ncer as a legitim

ate reas on for prophylactic mastectomies unless the patient had an 80% lifetime ri sk of developing breast c ancer. Had pla

intiff gone

to a gene

tic couns elor, the i naccura

cy of her family history would have been discovered, and s he would have avoided the unnecessary surgery. The mother would have been tested for the breast cancer gene , and given her actual me

dical h istory, h er chan ces of tes ting posi tive would h

ave been only 15%. 5. Fines Defenda nts' expe rt, Rich ard Fin es, was a board- certifie

d surgeon

in priva te practice in Marietta, Georgia. He ha d lectured on breast disease and breast cancer

treatmen

t. He als o was a pa

st presi dent and

board me

mber of the

Americ an Soci ety of- 38 -

Breast Surgeons, "an organization of about a little over 2[,]000 surgeons who [were] focused on the care of patients with breast disease."

In Fines's opinion, Dunnington complied with the standard of care in his

treatmen

t of plainti ff. Fines te

stified: "[T]aking a history is actua lly someth

ing that we learn in medical school, *** and the two key things that come about from that skill are knowing ** * the app

ropriate questions

to ask, an

d then the

second is, [I]s y our patien

t a reliable source[?]" As for as

king the right questio

ns, Dunni ngton was, in Fine s's opinion, "very methodical. He had a questionnaire filled out by the patient," and "he actually went through the questionnaire in pretty much detail with the patient and even made no tes on the

questionn

aire[,] i ndicati ng that he was confi rming the

answers to those questions." The family member whose medica l history was being discussed was even present, and "if there would have been anything tha t was being said that was incorrect, [Fines] would [have] expect[ed] [that] the person whose history was [under discuss ion would] be

able to know

and sta te whether

or not that wa

s correc t or incorre ct." To Fi nes, it wa

s reason able of Dunn

ington to re

ly on the h

istory tha

t plaintiff and her mother ha

d given. Fines " didn't se e any ev idence or detec t any evi dence o

f a poor historian." Defendants' attorney asked Fines:

"Q. Dr. Fines, in your work with surgeons across the country, do surgeons routinely obtain records not of the patients themselve

s, but the pa

tient's fam

ily memb

ers[,] to confirm a verbal history? A. No, they do not." Fines deemed it unnecessa ry to confirm that plaintiff's mother had ovarian- 39 -

cancer. He testified: "A. The most important issue is that [plaintiff] had a

mother, first-degree relative, with breast cancer before the age of 30, and that[,] in and of itself[,] increases her risk. Even if sh

e is not a genetic carrie r, her risk is in th

e 20[%] to 30% range, which is [3] to [5] times what the risk would be for a woman with no risk factors at all, and so discussing chemo prevention, for Tamoxifen reducing her risks, discuss ing lifes tyle cha nges[,] an

d disc ussing the

possibi lity of prophyla

ctic surg ery, if th e patien t comes i n with that on her mind in requesting that, I think that would be appropriate." Further, gi

ven the fa

mily his tory that pla

intiff and

her mothe

r repres ented to Dunnington, it was possible that plaintiff had inherited the breast cance r gene from her mother, in which case plaintiff would have had an 80% ch ance of developing breast cancer within her lifetime.

Fines testified that genetic counselors were not the only ones who could do genetic counseling; physicians a lso could do genetic counseling. If a physician d id the genetic counseling, it was unnecessary to send the p atient to a genetic counselor. According to Fines, there was no "numerica l cutoff" for prophylactic mastectomy. "It's very hard[,] when you are taking care of patients[,] to apply a specific number. You know, a pa tient may

have a 1 5% risk of br

east ca ncer, but s

he may h ave true levels of anxiety that are affecting her quality of life, [or she might have] very- 40 -

complicated breasts to follow." Fines disagreed with Weber that 20% was too low a risk to justify bilateral prophylactic mastectomies.

On cross-examination, Fine s testified he was a solo practitioner. He ha d never work

ed in a n acad emic me dical c enter. H e had ne

ver written

any arti cles on prophylactic mastectomies or risk assess ment of patients with breast cancer. From his general reading, he had found no articles pertinent to this case. In formulating his opinion on the standard of care, he relie d in part on his own practice. If a patien t wanted to know her risk of getting cancer, he "sometimes" sent her for genetic counseli ng, as a

reasona bly care ful surgeon wo

uld do. Ar

ticles i n medic

al journa ls stated that "genetic counseling [was] appropriate prior to doing prophylactic

mastecto mies." Fines a

dmitted th

at before d

oing a lump

ectomy, h

e would not r

ely on the patient to tell him which breast had the lump.

Fines a greed th at when wri

ting an op

erative r eport, a s

urgeon sh

ould state the reas ons for the

surgery a

nd the re asons sh ould be ac

curate. D unnington's

operativ e report stated he performed the prophylactic mastectomies on plaintiff because of her strong family history of breast and ovarian cancer. Fi nes agreed that "many women [were] sometimes confused about gynecologic cancers," espe cially if they had the cancer 20 years ago, in which cas e "they [might] not remember." Thus, "it would be important to get the medical records to check out the accuracy of the dia gnosis"--"[i]f it was going to make a difference." Plaintiff's attorney then asked Fines:

"Q. And [,] in fact, accord ing to wha

t Dr. Dunnin

gton wrote at the time in his operative report, it did make a differen ce beca use of the fa

ct that he

said h is indi cation for- 41 - doing the surgery was breast/ovarian cance r, isn't that true? A. That's what he wrote in the indications on his operative report, yes." Fines acknowledged there were clues, in Dunnington's own records, that plaintiff's

mother wa

s not an a

ccurate h

istorian , for in the

family hi

story that s

he wrote in preparation for the appointment with Green, she said tha t plaintiff's sister had "a few cancer cells" (more precisely, the doc ument says, "[F]ound some cancer cells"), whereas, on the basis of his interview of plaintiff and her mother, Dunnington wrote on the "History" form that plaintiff's sister had ovarian cancer.

Plaintiff's attorney asked Fines: "Q. Now, Doctor, isn't it true that you would have a difficult time saying that a patient who had a mother who had breast cancer on her right side at age 28 would be a candidate for prophylactic mastectomies ? * * * A. Yeah, it depends on a lot of factors. It depends on, you know, the level of anxiety of the patient, what she had gone through, *** how many breast biopsies she ha d had, [and] how often she has been alarmed by mammogra ms and breast lumps." Plaintiff's

attorney s

howed Fi nes plai ntiff's exh ibit No. 24

, SSO's po

sition

statemen

t from 1993. T

he positi on stateme

nt said: "'Indivi duals with nonprolife

rative disease of the breast (fibrocystic disea se) should not be candidates for mastectomy when- 42 -

tissue biopsies have been reviewed a nd confirmed by qualified pathologists.'" Fines agreed with that statement, but he added that since 1993, breast biops ies had become a risk factor for breast cancer. To prove that the standard of care ha d not changed in that respect since 1993, plaintiff's attorney showed Fines plaintiff's exhibit No. 25, the 2001 position statement of SSO, which said the same thin g about fibrocystic disease as in 1993. Defendants' attorney objected to plaintiff's exhibit No. 25 on the ground that it was publis

hed afte r Dunningto

n treated plaintiff. The tria

l court overr

uled the ob

jection but instructe

d the jury

that plai ntiff's exh

ibit No. 25 was adm

issible only for impeachment, not as substantive evidence. L ike Dunnington, Fines admitted that plaintiff met none of the indications for bilateral prophylactic mastectomy as se t forth in plaintif f's exhibitNo. 24. Fines further admitted that according to the "Claus tables" published by Weber in

February

2000 in the New En

gland Jour

nal of Medi cine, th

e chanc es of plaintiff c

oming do

wn with bre

ast canc er by age 49 were 6%; by age 69, 11%; and by age 79, 21%. "I don't use the Claus model," he said. The other standard model for the assessment of risk, the Gail Model, "underestimate[d] risk," in his opini on. He was unable to say whether plaintiff would have chosen prophylactic mastectomies if she had been told that her risk of getting breast cancer by age 49 was only 6%. He a greed, however, that most wom en would ch

oose to re

tain thei r breasts

and end ure the 6% ri

sk. At the conclusion of the evidence, the jury returned a general verdic t in defenda nts' favor. T

he trial c ourt subseq

uently den

ied pla intiff's moti on for a ne

w trial. II. ANALYSIS A. Refusi ng To Send

Plaintiff's

Exhibi t No. 24 to the

Jury Room- 43 - Plaintiff's exhibit No. 24 is the newsletter of SSO published in 1993 and containing the article entitled, "SSO Develops Position Statement on Prophylactic Mastectomies." Plaintiff claims "[t]he trial court erred in not admitting [this] [e]xhibit *** into e

videnc e." On th

e authori ty of Ohligschlager v. Proctor Community Hospital , 55 Ill. 2d 411, 417-18, 303 N.E.2d 392, 396 (1973), Wojcik v. C ity of Chi cago

, 299 Ill. App. 3d 964, 977-78, 702 N.E.2d 303, 313 (1998), and other case s, plaintiff argues that evidence of professional standards is substantively admissible at trial. She notes that under Illinois Pattern Jury Instructions, Civil, No. 105.01, the standard of care can be established not only by "opinion testimony from qualified witnesses" but also by "evidence of professional standards." Illinois Pattern Jury Instructions, Civil, No. 105.01 (2006) (IPI C

ivil (200 6) No. 105.0 1). The parties disagree on whether plain tiff's exhibit No. 24 contains any evidence of professional standards. Dunnington testified the exhibit was not a peerreviewed publicati on and th

at SSO pr

epared it for insur

ance c ompanie s rather than for physicians. Fines de

nied that the exhibit described the standard of care. In plaintiff's view, plaintiff's exhibit No. 24 does indeed contain the professi onal stan

dards fo r recomm

ending prophyla

ctic ma stectomi es. The article begins: "At the request of CHAMPUS, [ i.e. , the Civilian He alth and Medica l Program o

f the Uniformed Services,] [SSO] developed a position statement on prophylactic

mastecto mies to gui de insur

ance pr ograms i n determ

ining c overage a

nd help p

atients obtain reimbursement. The following position *** was approved by the SSO Stand ards of Care C

ommittee a

nd forward

ed to CHA

MPUS through

the Amer

ican Co llege of Surgeons." Then, under the subheading "SSO Posi tion on Prophylactic Mastectomy,"- 44 -

the artic le lists the

"indic ations" for bilater

al prophy

lactic m astectom ies in p atients wi

th no diagnosis of cancer.

CHAMPUS is a subdivision of the Department of Defense, and it administers the

Depend ent's Medi cal Care

Act (10 U.S .C. §§10 71 through 1106 (200 0)), a federally subsidized health care program for dependents of active-duty and retired members of the United States armed forces. CHAMPUS provides eligible beneficiaries "medic ally nec essary service s and sup

plies re quired i n the dia

gnosis a nd treatm

ent of illness or injury." 32 C.F.R. §199.4(a)(1)(I) (2007). It excludes coverage for services and supplies that are not "medically necessary ." 32 C.F.R. §199.4(g)(15) (2007). In determi ning whi ch servi ces and supplies are med ically n ecessa ry, CHAM

PUS consults (among other sources) "[n]ational medical policy organization positions" a nd "[n]ational professional medical associations" ( Smith v. Office of Civilian Health & Medical Program of the Uniformed Services , 97 F.3d 950, 960 n. 13 (7th Ci r. 1996))--th us CHAMPUS's request to SSO for a position statement on prophylactic mastectomies. Plaintiff i nfers tha

t the posi

tion state

ment in p

laintiff's e

xhibit No

. 24 sets forth wide

ly accepted professional standards for determining when prophylactic mastectomies a re medically necessary, bec ause the very reason for CHAMPUS's request was to ascertain, for purposes of coverage, what those standards were.

Defenda nt argues th

at "[t]he tri al court pro perly refus

ed adm ission o f [p]laintiff's [e]xhibit [No.] 24 on the ground that it constitute[d] inadmissible hearsay. In [so] rulin

g, the cour

t noted tha

t two medic

al witnes ses had testified that it was

not a standard and was instead a guideline used for insurance purposes [citation to record]."

We do not see how the testimony of Dunnington and Fines negates the- 45 -

existence of professional standards in plaintiff's exhibit No. 24. Just because the position statemen

t was des igned a s a refer ence for insuranc

e compa nies ra ther than

for physic ians, i t does not l ogically

follow that the

position statemen

t lacks evi dence o

f professional standards. SSO surely understood that the position statement would be useful to CHA

MPUS only i f it were a

statemen

t of profess

ional sta ndards in the se nse of what were

the indi cations

for prophy

lactic m astectom y. Fines testified that plai ntiff's exhibit No. 24 "doesn't set [the] standard of care." But the question is not whether the exhibi t sets the s

tandard of care i n the sen

se of spe cifying everythi ng a phys

ician s hould do or con

sider b efore rec ommendi ng bilate

ral proph

ylactic mastecto

mies; th e question is whethe

r the exh ibit conta

ins evid ence of p rofessio nal stand

ards whi ch, in tur

n, would be releva nt to deter

mining th

e standa rd of car e. See I PI Civil (2

006) No. 10 5.01. To deny that plaintiff's exhibit No. 24 contains any eviden ce of professional standards almost se

ems tanta

mount to sugge

sting tha t SSO mis

led CHA MPUS. The w

hole ide a of listing th e indic ations for

bilatera l prophyla

ctic ma stectomi es was to e

nable CH AMPUS to ascertain whether bilateral prophylactic mastectomies were medically necessary (32 C.F.R. §199.4(g)(15) (2007)). The corollary would seem to be that absent the listed indications, bilateral prophylactic mastec tomies were not medically necessary (in whi ch case CH AMPUS would d eny cove rage). In any event, the parties are arguing over whether the trial court erred in excluding plaintiff's exhibit No. 24 from evidence, and i t is unclear to us that the court did, in fact, ex clude it fr

om evide nce. To e

xclude i t from evid

ence, th e court would

have had to sus

tain an e videntia ry objec tion to the e

xhibit. That neve

r happe ned, as far as we can see from the record; at least, plaintiff cites no page of the record in which the court- 46 -

ruled plaintiff's exhibit No. 24 to be inadmissible. Without objection by the defense, plaintiff's attorney questioned Dunnington and Fines about the exhibit. She elicited from them an admission that plaintiff did not meet three of the indica tions listed in the exhibit, and she quoted the indic ations in her cross-exami nation: (1) plaintiff had no "'[f]amily history of breast cancer in a first-degree relative (espec ially a mother or sister) who [was] pr

emenopa

usal and has had bilatera l breast c ancer'" ; (2) she d

id not ha ve "'atypical hyperplasia'"; and (3) she di d not have "'fibro[]nodular, dense breasts that [were] mam

mographi cally di fficult to follow[] (e valuate) an

d [she d id not] pre

sent[] with either of the above (or both) clinical presentations,'" that is, (1) or (2). Thus, the content of plaintiff's exhibit No. 24 went into substantive evidence. "[W]hen hearsay evidence is admitted without an objection, it is to be c onsidered and given its natural probative effect." Jackson v . Board of Review of the Depa

rtment of La

bor , 105 Ill. 2d 501, 508, 475 N.E. 2d 879, 883 (1 985). Plaintiff argues the trial court "belittled the importance of the standards by instructing the jury that they could not be considered as substantive evidenc e." But at the page of the record that plaintiff cites, the court never instructed the jury that position statements in general could not be considered a s substantive evidence; the

court mere

ly instruc

ted the jur

y that a s ingle ex hibit, pla intiff's ex

hibit No. 2

5 (not plaintiff's

exhibi t No. 24), c

ould not be c

onside red as s ubstantive

eviden ce. Plai ntiff's exhibit No. 25 was a position statement that SSO issued in 2001. During the crossexamin ation of Fi nes by pl aintiff's a ttorney, d

efendan ts' attorney

objecte d to plain

tiff's exhibit No. 25 on the ground that it "was published after the treatment *** in this case ." Plaintiff's attorney responded:- 47 - "MS. de S AINT PHALLE: Your H onor, I thi nk it's relevant because [Fines is] saying that the standard of care changed after 1993. I'm going to show him the 2001 standar d that [sa

ys] the ex

act same thing as the 1993 statement, so-- THE COURT: For impeachment only[,] I'll allow it. It is not substantive evidence, ladies and gentlemen." This was not to say th

at every p

osition s tatement th

at SSO ev

er issue d was subs

tantively inadmissible i n the tria l. The pa

rticular p

osition s tatement a

t issue he

re, plai ntiff's exhibi t No. 25, was

relevant o

nly for imp

eachme nt not beca

use it was

a positi on statemen

t but becaus

e SSO pub

lished i t after Dunni ngton trea ted plai ntiff. In the jury

's prese nce, the trial cour

t never sus

tained a n objecti on to plaintiff's exhibit No. 24 or otherwise signified to the jury that it was inadmissi ble. Outside the jury's presence, the court merely declined to send the exhibit to the jury room. The court told plaintiff's attorney she could nevertheless make arguments to the jury regarding the exhibit. "The de cision whether to send exhibits to the jury room is within the trial court's sound discretion, and a reviewing court will not disturb that decision absent an abuse of disc retion that prejudices a party." VanWinkle v. OwensCorning Fiberglas Corp. , 291 Ill. App. 3d 165, 176, 683 N.E.2d 985, 993 (1997). Even under Federal Rule of Evidence 803(18), which the supreme court has not yet adopted ( Roach v. Springfield Clinic , 157 Ill. 2d 29, 46, 623 N.E.2d 246, 254 (1993)) and which is more generous than Illinois law in allowing the use of learned publications as substantive evidence, such materials are ne ver sent to the jury room (Fed. R. Evid.- 48 -

803(18) (28 U.S.C. app. Fed R. Evid. 803(18) (2000)). Illinois law permits the substantive admission of professional standards ( Darling v. Charles ton Communi

ty Memorial Hospital , 33 Ill. 2d 326, 332, 211 N.E.2d

253, 257 (1

965); IPI Ci

vil (2006) No

. 105.01), but unlike Fe

deral Rule

of Eviden

ce 803(18), it does n

ot permit th

e substan

tive admission of medical treatises (Walski v. Ti esenga , 72 Ill. 2d

249, 258-5

9, 381 N.E.2

d 279, 283 (1978); Fornoff v. Pa rke Davis

& Co. , 105 Ill. A

pp. 3d 681

, 690-91, 4

34 N.E.2 d 793, 801 (1982)). Even under the more liberal federal rule, however, the learned publicati ons do no

t go to the jur

y during d

elibera tions: " If admitte

d, the sta tements [from learned publications] may be read into evidence but may not be received as exhibi ts." Fed . R. Evid . 803(18). The advi sory com mittee's n

ote to Fede

ral Rule of E videnc

e 803(18) observes that while scholarly writers generally favor the admissibility of learned treatises, most courts oppose their admissibility as substantive evid ence, although they allow treatises to be used for impeachment in the cross-ex amination of experts. Fed. R. Evid. 80 3(18), Notes o

f Advisor y Committe

e on Propo

sed Rules

. The arg

ument in fa

vor of substantive admissibility is that "the hearsay objec tion must be regarded as unimpressive when directed agai nst treatises since a high standa rd of accuracy is engende red by va rious fac tors: the treatise

is written

primarily and i mpartia lly for professionals, subject to scrutiny and exposure for inaccuracy , with the reputation of the writer at stake." Fed. R. Evid. 803(18), Notes of Advisory Committee on Proposed Rules. Alth

ough, gene

rally, tre atises m ight be trus

tworthy, the

y often are

written for specialists and presuppose that the read er has a specialized

education that laypersons lack; consequently, it is "likel[y] that the treatise will be misunderstood and misapplied- 49 -

without expert assistance and supervision." Fed . R. Evid. 803(18), Notes of Advisory Committee

on Propos

ed Rules. In two ways

, the fede ral rule les

sens the danger of misunde rstandi ng and m

isappli cation: (1) "limiti ng the use of treatis

es as sub stantive evidence to situations in which an ex pert is on the stand and available to explain and assist i n the app

lication of the trea

tise[,] if d

esired "; and (2

) prohibi ting the c

ourt from "recei ving the p

ublicatio n itself ph

ysicall y in evid ence." Fed. R. Evid. 80 3(18), Notes o f Advisory Committee on Proposed Rules.

While allowing plaintiff's attorney to make arguments to the jury regarding plaintiff's exhibit No. 24, the trial court could reasonably decline to rece ive the exhibit itself physically into evidence a nd send it to the jury room. With its exotic terminology, such as "atypical hyperplasia of lobular or ductal origin," the ex hibit obviously is not written for laypersons, and a jury is likely to speculate about what it does not understand. The jury heard plaintiff's attorney cross-ex amine Dunnington and Fines regarding the exhibit. The jury heard these two witnesses admit that plaintiff did not meet the three indications therein. Thus, the content of the exhibi t was already in evidence. Plaintiff's attorney was free to quote the exhibit in her closing argument, if she so d esired . Withhold

ing the e xhibit fr om the jury

room less

ened the danger of misunderstanding and misapplic ation. We find no abuse of discretion in that regard. B. The Im

peachm ent of Plai ntiff At trial, plaintiff testified she was "confused" when she wrote, on the "History " form in D unnington's office, th

at her moth

er had c ancer i n both bre

asts at a ge 26. Then, over obje

ction, the

trial cour

t allowed d

efendan ts' attorney

to question plaintiff about the inconsistent testimony she had given in her di scovery deposition:- 50 - "Q. Durin

g your dis

covery d epositio n, you did

n't tell me that yo

u were con

fused[] and

that's the r

eason wh

y you wrote, 'Both

breasts at 26,' did

you? A. No. Q. You did

n't tell me tha

t, did yo u? A. No, I di dn't. Q. Instea d, you sa id, 'I di dn't write th

at,' didn 't you? A. Yes." Plaintiff argues that a witness's credibility may not be impeache d with a specific act of untruthfulness. See People v. S antos , 211 Ill. 2d 395, 404

, 813 N.E.2

d 159, 163 (2004

). She furthe

r argues th

at the "im

peachm ent" of he

r was only

a preten se of impeachment: impeachm ent is supposed to be a means of canceling out dama ging testimony

, wherea s, here, there was

no dama

ging testi mony to ca

ncel out: p

laintiff testified at trial that she was the one who had written, "Mother [b]oth [b]reast[s] at 26." See People v. C

ruz , 162 Ill. 2d 314, 363, 643 N.E.2d 636, 659 (1994). These a rguments ov

erlook plai ntiff's status as a pa rty. Impe

aching or not, a party's prior inconsistent statement is an admi ssion. People v. Adams , 265 Ill. App. 3d 181, 188-89, 638 N.E.2d 254, 259 (1994). "Discovery depositions *** may be used *** as an admission made by a party *** in the same manne r and to the same extent as any other admission made by that person * **." 210 Ill. 2d R. 212 (a)(2). "Any oral or written out-of-cour

t statemen

t by a par

ty to the ac

tion *** w

hich ten ds to esta

blish or d

isprove any mate

rial fac t in a ca se is an admiss ion and is comp etent evid

ence ag ainst tha t party in the action." Ficken v. Alton & South ern RY. Co

. , 291 Ill. Ap

p. 3d 635, 647, 685 N.E .2d- 51 -

1, 10 (1996). An admission must be relevant. Gillson v. Gulf, Mobile & O hio R.R. Co. , 42 Ill. 2d 193, 197, 246 N.E.2d 269, 272 (1969). Evidence is relevant if it has "any tendenc y to make th

e exis tence of a

ny fact tha

t is of cons

equence to the dete

rminati on of an action *** more or less probable than it would be without the evidence." People v. Morgan , 197 Ill. 2d 404, 455-56, 758 N.E.2d 813, 843 (2001). Under long-standing case law, a party's deliberate falsehood regarding a ma terial fact of the litigation is considered relevant to the "righteousness" of the party's cause. Lubbers v. Norfolk & Western Ry. Co. , 118 Ill. Ap

p. 3d 70 5, 712, 454 N.E.2d 1186, 1191 (19

83), citin g People v. Spaulding

, 309 Ill. 292, 305-06, 141 N.E. 196, 202 (192 3). " 'By r

esorting to wrongful de

vices[,] [a party] is said to give ground for believing that he thinks his case i s weak and not to be won by fair means. Accordingly, a party's false statement about the matter in litigation, whether before suit or on the stand, *** [is a] type of admission by cond uct.' " (Emphasis omitted.) Lubbers , 118 Ill. Ap p. 3d at 7 11, 454 N .E.2d at 1191, quotin g D. McCor

mick, Evidenc e §273, a t 660 (2d ed

. 1972). If th

e jury be lieved Dun

nington a

nd Fine s that, under the circumstances, it was within the standard of care to rely on information that plaintiff had written on the medical-history form, the fact that plaintiff wrote the information is material. In her deposition, she falsely denied that material fact. We find no abuse of discretion in the overruling of plaintiff's objection. C. Refusal To Allow the Use of Plaintiff's Exhibit No. 45 for Impeachment Plaintiff's exhibit No. 45 was an article entitled "Breast Canc er Managem

ent," publi

shed in 1999 in a pe

er-revi ewed me

dical j ournal, Sur

gical Cli nics of North America. The author was Lynn Hartman. Plain tiff's attorney asked Dunnington:- 52 -

"[Hartman] is authoritative in the field of breast cancer, is she not?" He answered: "Yes, for a single landmark article." The trial court refused to allow plaintiff's attorney

to cross- examin

e Dunning

ton on plai ntiff's exh

ibit No. 4

5 becaus e plainti ff failed to prove tha

t the spec

ific arti cle, as o

pposed to

its author

, was autho

ritative. Plaintiff argues the court thereby abused its discretion.

The supreme court has held: "In our opinion[,] expert testimony will be *** more effective *** in th e attainm

ent of justi ce if cro

ss-exa mination is perm itted as to the views

of recogn

ized a uthorities

, expre ssed in treatise s or peri odicals

written for professional colleagues. ( Cf. Model Code of Evidence, Rule 529[, at 294 (1942)].) The author's competence is established if the judge takes judic ial notice of it, or if it is established by a witness expert in the s ubject." Darling

, 33 Ill. 2d at 336, 211 N.E.2d at 259. The cited rule of the Model Code of Evidence provides as follows:

"Rule 529. Learned Treatise. A published treatise, periodical[,] or pamphlet on a subject of history, scienc e[,] or art i

s admis sible as tending to prove the truth of a matter stated therein if the judge takes judicial notice, or a witness expert in the s ubject testifies, that the writer of the statement in the treatise, periodical[,] or pamphlet is recognized in his profession or calling as an expert in the subject." Model Code of Evidence, Rule 529, at 294 (1942). As we said, the supreme court has not gone so far as to hold that treatises are substantively admissible. But, under Darling and Rule 529, treatises and other- 53 -

learned publications are admissi ble if an expert testified to the author's competence in the profession.

The First District takes the same view. It holds that a learned text is admissible for impeachment on cross- examination in any of the following three circums tances: (1) the tria

l court takes

judici al notice

of the autho

r's compe

tence, (2) the witness concedes the author's competence, or (3) the cross-e xaminer proves the author's competence by a witness with expertise in the s ubject matter. Bowman v. Universi ty of Chic

ago Hosp

itals , 366 Ill. App

. 3d 577 , 587, 852 N.E .2d 383, 3 92 (2006). In the pre

sent cas e, Dunnin

gton--hi mself an e

xpert-- gave an a

ffirmative answer to the question of whether Hartman, the author of plaintiff's exhibit No. 45, was "authoritative in the field of breast cancer." Ergo , the tria l court erre

d in refus

ing to allow plai ntiff's attorn

ey to use th

e exhibit in he

r cross- examin

ation of hi m. When we consider, however, all the other learned publications that plaintiff used to impeach Dunnington

, we find i

t unlikely tha

t allowing h

er to use th

is add itional s ource would have made a difference in the verdict. Therefore, we find the error to be harmless.

D. Lack of an Offer of Proof Regarding Plaintiff's Exhibit No. 35 Plaintiff's attorney handed Fines plaintiff's exhibit No. 35, which he identified as a review article entitled "Proph ylactic Surgery in Women with Hereditary Predisposition to Breast and Ovaria n Cancer." This exhibi

t is in the record. It was published in the May 2000 edition of the Journal of Clinical Onc ology. The authors are Andrea Eisen, Timothy R . Rebbec k, William C. Wood, a

nd Weber

. Accord ing to a no

te on the firs

t page of the

article, the author

s submitte

d the arti cle for publi cation on August 10, 1999. Plaintiff's attorney asked Fines:- 54 - "Q. And, Doctor, let me ask you if you agree with this Statement at the bottom of [p]age 19-- MR. HARLESS: Let me object to the timing of this publication[, which] is after the date of the assessment in this

case. MS. de SAINT PHALLE: Your Honor-- THE COURT: What are the dates? MS. de SAINT PHALLE: It was written--it was submitted

August 10th o

f 1999 and a

ccepted January 2 1st[] of 2000. THE COURT: And when was it published? MS. de SA

INT PHAL LE: It wa

s publish ed in Ma y of 2000. THE COURT: I'll sustain. I'll sustain the objection." Plaintiff's

attorney th

en moved

on to a di fferent subj ect in he r cross- examin

ation of Fines. On appeal, plaintiff argues the trial court abused its discretion in sustaining the objection. She argues that the article "disc usse[s] the management options th

en in use at the Uni

versity o f Pennsylv

ania a nd Emory

[Universi

ty School o

f Medicine]" and the article "would have been significant in impeaching Dr. Fine s because Emory is the academic re ferral center for the area where he practices ." She further argues the

article "[is] sig

nifican t because

the artic le's co-a uthorship

between p

laintiff's expert a nd the sur

geon cha irman of th

e breas t center r

ebutted Dr. Dunnington 's- 55 -

contentio

n that Dr. We

ber's ex pertise was limi ted to gene

tics." C iting Granberr

y v. Carbondale Clinic, S.C. , 285 Ill. App. 3d 54, 65, 672 N.E.2d 1296, 1304 (1996), and Bergman v. Kelsey

, 375 Ill. App. 3d 612, 630, 873 N.E.2d 486, 509 (2007), she argues that poste

vent texts

can be us

ed in c ross-ex aminati on for purpo

ses othe r than to establish the standard of care.

The problem is, plaintiff did not inform the trial court of those purposes in an offer of proof. "To be adequate, an offer of proof must apprise the trial court of what the offered evidence is or what the expec ted testimony will be, by whom it will be presented[,] and its purpose." Chicag o Park Dis

trict v. Ri chards

on , 220 Ill. A

pp. 3d 696, 701, 581 N.E.2d 97, 100 (1991). Unless the purpose of the proffered evidence is clear from the que

stion itse lf ( Moss v. Miller , 254 Ill. A pp. 3d 17 4, 183, 625

N.E.2d 10

44, 105 0 (1993)), couns

el must ex

plain the purpose to

the trial c

ourt as pa

rt of the offer

of proof ( People v. Hoffee , 354 Ill. 123, 140, 188 N.E. 186, 192 (1933)). Plaintiff's attorney did not inform the trial court how plaintiff's exhibit No. 35 would impeach Fines and Dunnington

or what he

r purpose

s were in offering th

e exhi bit. Thos

e purpose

s were no

t apparent from the question itself. Absent such an offer of proof, the issue of whether the court erred in excluding the exhibit is forfeited. Se e Chicago Park District, 220 Ill. App. 3d at 702, 581 N.E.2d at 100.

E. Refusal To Allow Plaintiff To Show the Jury the Various Learned Publications She Had Used To Impeach Defense Witnesses Plaintiff argues the trial court erred in refusing to allow her to show to the jury the scholarly materials she used to impeach the defense witnesses, i.e. , plainti ff's exhibit No. 23, a book chapter written by Dunnington; plaintiff's exhibit No. 24, the SSO- 56 -

standar ds for bila

teral prop

hylactic mastecto

mies; p laintiff's e

xhibit No

. 26, a book chapter stating that obtaining family pathology records are an i ntegral part of compiling the family history; plaintiff's exhibit No. 30, an algorithm for evaluation of women at increased risk for breast cance r; plaintiff's exhibit No. 37, indications for prophylactic mastectomies; and plaintiff's exhibit Nos. 38, 42, and 53, articles by Weber.

Plaintiff cites People v. A nderson , 113 Ill. 2d

1, 495 N.E .2d 485 (1986 ), for the propos

ition tha t "[t]he [s]upr

eme [c]ourt permits th

e publish

ing to the j ury of materials used on cross-exami nation." We do not see where, in Anderso n , the supreme court said so, and plaintiff does not provide us a pinpoint ci tation. (Throughout her brief, plaintiff frequently cites cases without citing the pertinent page number within those cases--a violation of Illinois Supreme Court Rule 6 (145 Ill. 2d R. 6). See Putman v. Village of Bense

nville , 337 Ill. App. 3d 197, 201, 786 N.E.2d 203, 205 (2003) (failure to obey Rule 6's requirement of citing the page of the case on which the pertinent matter appears can result in forfeiture of the argument).) In Anderso n , 113 Ill. 2d

at 9, 495 N.E.2d at 488, the supreme court held that "an expert should be allowed to reveal the contents of materials upon which he reasonably relies in order to explain the basis of his opinion "; but we d

o not see w

here tha t case s ays any thing abo

ut publishing

those materials to the jury in the sense of physically distributing a copy of them to the jury. Plaintiff cites no authority holding that a trial court must allow copies of impeachment materials to be distributed to the jury, either in the courtroom or the deliberation room. Her failure to cite relevant authority results in a forfeiture of this argument. See Vine Street Clinic v. HealthLink, Inc. , 222 Ill. 2d 276, 301, 856 N.E.2d 4 22, 438 (20

06). F. Partial Summary Judgment- 57 - Defendants sought a summary determination in their favor on paragra phs 23(c) and (d) of counts I and II of the second amended complai nt. The trial court granted their motion on March 8, 2007.

On March 13, 2007, plaintiff filed an "Amend ment to the [Second] Amended Complaint," in which she deleted paragraphs 23(c) and (d). Section 2-10 05(d) of the Code

of Civil Pr

ocedure (Code) (73

5 ILCS 5/2

-1005(d ) (West 2006)) did not require her to do this. Rather, the determined i ssues were to be set down in an order, and the trial was to be conducted accordin gly. See 735 ILCS 5/2-1005(d) (West 2006). "[T]he is sue of the p

ropriety of the tria

l court's gra

nt of summar

y judgme

nt is not properly before this court, for when an amendment is filed that is complete in i tself and that does not refer to or adopt by reference the prior pleadings, the e arlier pleadings are effectively withdrawn and cease to be part of the record for most purposes." Gilley v. Kiddel , 372 Ill. App. 3d 271, 274, 865 N.E.2d 262, 265 (2007). By filing the amendment to the sec

ond ame nded c omplaint- -an ame

ndment th

at delete d the subp

aragrap hs on which the

trial cour

t had gra nted summ

ary judg ment--p laintiff for

feited a ny objec tion to the summary judgment. See Gilley , 372 Ill. A

pp. 3d a t 274, 865 N. E.2d at 26 6. G. Defendants' Motion in Limine On February 22, 2007, defendants filed a motion in limine, in which they sought to ba

r plainti ff from allegi ng to the jur y that Dunni ngton did

the followin

g: "4. Dr. D unnington d

id not re fer Sand ra Downey

for genetic counseli ng beca

use Medi caid/[p]ublic [a]id would not cover th

e cost of ge

netic tes ting. 5. Dr. Dunni ngton did

not refer S andra D owney for- 58 - genetic counseling and testing because she was unable to pay for those services." In a hearing on February 23, 2007, the trial c ourt granted those paragraphs of the motion in limine . Plaintiff contends, on appeal, that the court thereby erred.

On March 8, 2007, after granting the motion in limine, the trial court granted defendants' motion for partial summary judgment, in which they plead ed as follows: "1. Judgme nt should be

entered in favor of [d]efendants because there is no genuine issue of materia l fact that Dr

. Dunningto

n did no t allow cons

iderati ons of [p]laintiff's ability to pay for genetic testing to affect the manner in which he presented treatment options to the plaintiff." As we have explained, given plain tiff's amendment of her second amended complaint, this summary judgment is not properly before us. Under section 2-100 5(d) of the Code (735 ILCS 5/2-1005(d) (West 2006)), the trial was to proceed in accordanc e with the sum

mary jud gment. If, as the sum

mary jud gment de

termined

, Dunningto

n "did not allow considerations of [p]laintiff's ability to pay for genetic testing to affect the manner in which he presented treatment options to the [p]laintiff," it would be impossible, consistently with that determination, to make the claims that paragra phs 4 and 5 of the motion in limine sought to bar. Therefore, we uphold the ruling on the motion in limine . The tes timony the

trial cour

t struck from We

ber's evi dence d

epositio n was inadmissible because of the summary j udgment and the ruling on the motion in- 59 -

limine

. H. Asking Weber Whether Plaintiff Would Have Undergone Genetic Testing In Weber's evidence deposition, defend ants' attorney asked Weber: "Q. Doctor, isn't it true that even if Sandra Downey had undergone genetic counseling, you can't say that she would have

had gen etic testing, can y

ou? A. No, but I can say that if I think she had a bilateral prophyla ctic ma stectomy[] in the ab

sence o f genetic testing, that that would have been a mistake. MR. HARLESS: I move to strike her answer as nonresponsive. Q. Isn't it true, Dr. Weber, that even if Sandra Downey had undergone genetic counseling, you can't say that she would have

had gen etic testing, can y

ou? A. No." The trial court granted defendants' motion to strike the first question and answer, quoted above, on the ground that the answer was unresponsive to the question. The court denied plaintiff's motion to strike the second question and answer on the ground tha

t it was im

permiss ible to as k an exp ert to spec

ulate as to w

hat dec ision plaintiff would have made about undergoing genetic testing. On appeal, plaintiff argues that the court thereby erred, for Weber's opinion in that respect was speculative and the jury, rather than an expert, should assess the c redibility of the plaintiff's testimony in informed-consent cases. See Mansmith v. Hameeduddin , 369 Ill. App

. 3d 417 , 435, 860- 60 -

N.E.2d 395, 411 (2006); Coryell v. Smith , 274 Ill. App. 3d 543, 550, 653 N.E.2d 1317, 1321 (1995). We

agree, b ut accord

ing to plai ntiff's peti

tion for re

hearin g, the rea

l issue in this case was whether Dunnington should have even offered prophylac tic mastectomies to plaintiff, given her true medical history. The petition argues: " Since mastectomies were not medically indic ated, [plaintiff's] predilections and choices were irrelevant. Thus, the outcome of this case turned on whether Dunnington had an obligatio n to verify

the medi cal his

tory before

undertaki ng an inv

asive a nd totally elective proced ure." From

this arg ument, it s

eems to follo

w that Webe

r's opini on about plaintiff's "predilections and choices" is harmless. I. Allowing the Defense To Elicit Testimony That Dunnington's Father was a Clergyman

Defendants' attorney asked Dunnington: "Q. Dr. Dunnington, I want you to go back a ways. I want to talk to you about where you grew up, where you were born[.] What does your family consist of when you were growing up? MS. de SAINT PHALLE: I'm going to object to the relevance of this. THE COURT: Overruled. THE WITNESS: I grew up in a small town in Indiana, New Castle

, India na, and my father

was a mi nister. M

y mother was a housewife, stay-at-home mom, and there were four children in the family." Plaintiff argues: "Introducing evidence that Dr. Dunnington's father was a- 61 -

ministe r had no relation ship to a ny issue in this c ase. [Ci tation to re

cord.] It w

as plain ly an improper attempt to bolster his credibility[] and to curry favor with the jury." She cites Pearson

v. Ford Moto

r Co. , 32 Ill. Ap

p. 3d 188, 192-93, 33

6 N.E.2d 52

8, 532 (1975), for the proposition that "[i]ntroducing evidence of a party's domestic circumstances is highly prejudic ial" and McCarthy

v. Spring

Valley Coa

l Co. , 232 Ill. 473, 479-80, 83 N.E. 957, 960 (1908), for the proposition that doing so is reversible error.

The rule is stark and absolute: "Irrelevant evidence is not ad missible." Maffett v. Bliss , 329 Ill. Ap p. 3d 562, 574, 77 1 N.E.2d 4 45, 455 (20

02). As we

have explained, evidence i

s relevant if it has any tendency to make the exi stence of a fact that is of consequence to the determination of the action either more or less probable that it would be without the evidence. Morgan , 197 Ill. 2d at 455-56, 758 N.E.2d at 843. "[W]hat Dunnington's family consist[ed] of when [he was] growing up" had no such tendency. Ergo

, it was irrelevant and inadmissible that Dunnington's father was a clergyman, and the trial court abused its discretion by overruling plaintiff's objection. Such evidence is wholly irrelevant to the issues in this trial, and the use of such evidence constitutes an aberrant practice that should not be tolerated. Not only does the evidence lack any logical r elations hip to the

action o n trial, but it has the

further nefa

rious purpose of requiring opposing counsel to object, calling undue attention to both the significance of the evidence a nd the efforts of the objecting party. This error, however, was not as prejudicial as in Pearson and McCarthy

. In those ca ses, a la borer was

seeking compens

ation for p

ersonal i njuries, and the laborer's attorney informed the jury that the laborer had a wife and five children. Pearson , 32 Ill. app. 3d at 192, 336 N.E.2d at 531; McCarthy , 232 Ill. at 479, 83 N.E. at 960. Those are- 62 -

different domestic circumstances than in the pre sent case. That Dunnington's father was a cle rgyman d

oes not pr

ovide as strong an

emotiona

l incenti ve as the laborer's impoverished wife and five children. We find error, but not reversible error.

In her petition for rehearing, plaintiff argues that the erroneously admitted evidence had the effect of contrasting her "former status as a 15[-]year[-]old pregna nt high[-]s chool dro

pout [with] Dunn

ington's s

tatus as the

son of a mi nister wi

th a stay[- ]at[-]home mom." She argues that "Dunnington's religious upbringing could have had an impact on the jury in evaluating whether Dunnington was telling the truth in his claim that the standard of care did n ot require verification of medical history." She cites Freedi ng-Skokie

Roll-Off Se

rvice, I nc. v. Ha

milton , 108 Ill. 2d 217, 223, 483 N.E.2d 5 24, 527 (1985), for the following proposition: "'Where error is shown to exist, it will compel

reversa l, unless th

e record affirmati

vely shows

that the e

rror was n

ot prejudi cial.' ( Duffy v. Cortesi (1954), 2 Ill. 2d 511, 517[, 119 N.E.2d 241, 245].)" In Hamilton , 108 Ill. 2d at 223, 483 N .E.2d at 527, howe ver, the p

laintiff's c

ounsel "e

mphasi zed" the erroneous

ly admitted testimony

in closi ng argume

nts, and for that rea

son, the s

upreme c

ourt held the record did not affirmatively show the error was not prejudicia l. It does not appear that defendants' counsel emphasized the religious vocation of Dunnington's father. In another case that plaintiff cites, Koonce v. Pacilio , 307 Ill. App. 3d 449, 456, 718 N.E.2d 628, 634 (1999), defense counsel implied his clients had no insurance a nd, therefore, would be personally responsible for the satisfaction of any judgment against them, and he also vo

uched for

the hone

sty and c haracte r of his c lients an d inac curately summarized the evidence. A p assing reference to Dunnington's childhood is not even remotely comparable in its prejudicial impa ct. In the other case that plaintiff cites,- 63 -

Lorenz v. Siano

, 248 Ill. App. 3d 946, 953-54, 618 N.E.2d 666, 671 (1993), defense counsel asked his client, in a persona l-injury case, about the ownership of his home and the amount of his annual income. The appellate court said: "It has long been the rule in Illinois that appeals to the passion or sympathy of the jury are improper and are sufficient cause for reversing a judgment unless it can be said that the prejudice suffered was so minimal that it did not impact upon the outcome of trial." Lorenz , 248 Ill. App. 3d at 953, 618 N.E.2d

at 671. Ag

ain, we d o not find th

e religi ous vocati on of Dunnington's father to be comparable, in its emotional impact, to a defendant's financia l hardship in a personal-i njury case.

To reverse the verdict, we would have to attribute to the jury a simplemindedness and e ven a viciousness that are implausible. We would have to infer that the jury considered Dunnington to be a paragon of virtue because, dec ades ago, he was raised by a father who was a min ister and a mother who was a housewife. We also would have

to infer tha

t, in its ve

rdict, th e jury puni

shed pla intiff bec ause, co mpared to Dunnington, she had an unfortunate childhood. We choose to believe better of the jury. We conclude that the prejudice was not great enough to have affected the verdict. Se e Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc. , 199 Ill. 2d 325, 364, 770 N.E.2d 17

7, 201 (20

02). Plaintiff argues that "rigid application of the harmless[-]error doctrine" provides little incentive for counsel to refrain from errors in the future. It is unclear what plai ntiff mean

s by app lying the doctrin e "rigid ly." Ther

e is no que

stion of ri gidity or flexib ility. Ei ther the e

rror is h armless or not. Ei

ther the e

rror cha nged the result, or it did not. Belleville

Toyota , 199 Ill. 2d a

t 364, 770

N.E.2d a

t 201. Ei ther the e

rror- 64 -

"substantially prejudiced a party and affected the outcome below," or it di d not. Bradfie ld v. Illino

is Centr al Gulf R.R. C

o. , 137 Ill. A

pp. 3d 19, 23, 484 N .E.2d 365 , 368 (1985). And the burden is on the party seeking reversal to establish such prejudice. Cairns v. Hansen

, 170 Ill. App. 3d 5

05, 511, 52

4 N.E.2d 939, 944 (1

988). The logi c of incentives is undeniable, but the alternative to the plain-error doctrine would be requiring perfect trials. That alternative is impracticable.

J. Denial of Plaintiff's Motion for a New Trial Plaintiff a

rgues the tr

ial court a

bused its discre tion in d enying h er motion for a new trial. We will overturn the ruling only if it was an abuse of discretion; and it

was an a buse of discretion

only if the

jury's ver

dict was agains t the mani fest weigh

t of the evidence. See York v. Rush-Presbyterian-St. Luke's Medical Center , 222 Ill. 2d 147, 178-79, 85

4 N.E.2d 635, 652-52

(2006). "A

verdic t is contra

ry to the ma

nifest weight of the evid ence whe

n the oppo

site con clusion is clearly

eviden t or when th

e jury's fi ndings prove to be unreasonable, arbitrary[,] and not based upon any other evide nce." York , 222 Ill. 2d a

t 179, 854 N. E.2d at 652

. The jury's verdict is not against the manifest weight of the evidence. Conflicts in the evidence and dis agreements among experts do not make a verdi ct against the manifest weight of the evidence. First National Bank of LaGrange v. Lowrey , 375 Ill. App. 3d 181, 213, 872 N.E.2d 447, 478 (2007), appeal denied , 226 Ill. 2d 583, 879 N.E.2d 930 (2007); Soberals ki v. Chic

ago Rock I sland & P

acific R.R. Co. , 29 Ill. App. 3d 1019, 1024, 331 N.E.2d 645, 650 (1975). Weber disagreed with Dunnington and Fines on the stand

ard of ca re. Plai ntiff also i mpeach ed Dunni ngton and

Fines wi th scholarly publications tending to show that verification of the patient's family history- 65 -

was requi red and

that plai ntiff's ris

k of develop

ing brea st cance r, given h

er actual family history, was less than what Dunnington and Fines claimed . The jury had a choice: it could believe Weber, or it could believe Dunnington and Fines. When determini ng the standar d of care applica ble to a sur

geon, the

jury could

have found

the testim

ony of two experienced surgeons to be more pers uasive than the testimony of an oncologist. It was for the jury

to decid e whether

the artic les from the

medica l journals made Dun

nington and Fines unworthy of belief. The jury could have believed Fines when he testified that surgeons generall

y do not go on a quest for medic al recor ds to corr

oborate wh

at patien ts tell them about their family history. The jury could have believed Dunnington when he testified that Betty Hart's premenopausal breast cancer was s ufficient cause to offer bilateral prophylactic mastectomies to plaintiff, regardless of whether Betty's breast cancer was in both breasts and re gardless of whether she had contracted ovaria n cancer. III. CONCLUSION For the fore

going rea

sons, we a

ffirm the tri al court's j udgment. Affirmed. KNECHT and STEIGMANN, JJ., concur.