BARBARA G. ZAMBELLI, J.
Petitioner Jacqueline Byrnes ("petitioner") seeks a judgment and order pursuant to Article 78 of the Civil Practice Law and Rules nullifying the November 1, 2007 determination by respondent Kevin P. Mahon, the Commissioner of Social Services for the County of Westchester ("Mahon"), which terminated petitioner's employment as a Supervisor of Case Work effective November 9, 2007. Petitioner contends that Mahon's action was "arbitrary, unlawful and otherwise illegal."
On July 29, 2005, two children from a family with an active Child Protective Services ("CPS") case died (the "Maldonado / Arroyo" case). The case had been assigned to Dennaya Joyce ("Joyce"), a probationary Senior Social Caseworker in petitioner's CPS unit. Joyce was terminated after she had admitted that she failed to adhere to CPS procedures and protocol in regard to handling the case. On August 17, 2005, petitioner was served with a Notice of Charges pursuant to Civil Service Law § 75 which contained twelve specifications of misconduct relating to her alleged failure to adequately supervise Joyce for the time period of June 6, 2005 through July 27, 2005. Accordingly, a hearing was held before Hearing Officer Robert Ponzini on petitioner's disciplinary charges on November 18, 2005, January 30, 2006, August 7, 2006, November 8, 2006 and January 29, 2007. On October 11, 2007, the Hearing Officer issued his Report and Recommendation, which made findings of fact which sustained all of the charges and which recommended the penalty of termination (Verified Answer, Exhibit G). On November 1, 2007, respondent Mahon notified petitioner that he was adopting the Hearing Officer's findings of fact and recommendation of termination, and terminated petitioner from her position of Supervisor of Case Work effective from the close of business on November 9, 2007 (Verified Answer, Exhibit A).
Specifically, these twelve charges, numbered (1a) to (1l), charge petitioner with failing to take appropriate supervisory action to ascertain the risk level of the case (1a), failing to adequately review Joyce's notes from June 6, 2005 through July 27, 2005 (1b); failing to adequately monitor whether Joyce was making timely home visits (1c); failing to adequately inquire into the circumstances of the home visit(s) in June and July, 2005 to determine if additional action should be taken (1d); failure to adequately inquire into the circumstances of the home visits to determine if contact with the family members was accomplished between June 10 and June 13, 2005 (1e); failure to assign another caseworker to make a home visit while Joyce was attending training during the week of June 13, 2005 (1f); failure to adequately monitor whether Joyce was timely inputting her observations and notes on the case in the computer (1g); failure to review the computer case notes on the family during the month of June, 2005, and prior to bi-weekly conferences with Joyce on July 6, 2005 and July 13, 2005 (1h); failure to follow-up with Joyce on whether she made domestic violence or chemical dependency referrals (1i); failure to adequately review the notes which stated that David Maldonado had been arrested (1j); failure to properly assess the home environment in that she did not direct Joyce to question David Maldonado and/or Luz Arroyo about the two children who were living outside the household (1k), and failure to follow up at her July 13, 2005 conference with Joyce regarding her July 7, 2005 email directive to Joyce to complete her overdue notes by July 12, 2005 (1l) (Verified Answer, Exhibit B).
Petitioner commenced this proceeding to challenge respondents' action in terminating her employment, alleging that Mahon was disqualified from rendering the final administrative determination and should have recused himself. Petitioner alleges that such recusal was necessary because Mahon publically pronounced petitioner guilty of misconduct prior to the conclusion of the disciplinary hearing and received and read material about the disciplinary hearing which was de hors the record. Petitioner further alleges that her due process rights were violated by the selection of Ponzini as the hearing officer and that the imposed penalty of termination was excessive.
For her Fifth Cause of Action in her Verified Petition, petitioner alleged that the administrative determination was not supported by substantial evidence. However, as a substantial evidence question would require this case to be transferred to the Appellate Division, Second Department, in her Reply to the respondents' Answer, petitioner withdrew that cause of action to avoid the delay in transferring the case to the Appellate Division (Petitioner's Reply Memorandum of Law).
Respondents oppose the petition. They allege that there was no basis for Mahon's recusal or disqualification because Mahon's public statements about the death of the Maldonado / Arroyo children did not constitute a prejudgment of petitioner's guilt and that while Mahon, as the Commissioner of the County Department of Social Services, was knowledgeable regarding the investigation and the preferring of charges against petitioner, he based his decision on matters appearing in the hearing record. As to petitioner's claim regarding bias on the part of the Hearing Officer, respondents dispute that any such bias existed and argue that petitioner failed to meet her burden in demonstrating such bias. Lastly, respondents contend that the penalty of termination was properly imposed in light of all of the circumstances of the case.
It is black letter law that an impartial decision maker is a core guarantee of due process, which guarantee is fully applicable to adjudicatory administrative proceedings ( Matter of 1616 Second Avenue Restaurant, Inc. v. N.Y.S. Liquor Auth., 75 NY2d 158, 161 (1990); Matter of Warder v. Bd. of Regents of the Univ. of the State of NY, 53 NY2d 186, 197 (1981); see also Withrow v. Larkin, 421 U.S. 35, 46-47 (1975)). However, disqualification is only required where an administrator has a preconceived view of the facts at issue in a specific case as opposed to prejudgment of general questions of law or policy ( Matter of 1616 Second Avenue Restaurant, Inc. v. N.Y.S. Liquor Auth., supra). A mere allegation of prejudgment or bias on the part of an administrator is insufficient; in order to sustain such a claim, there must be a factual demonstration to support the allegation of bias and proof that the outcome flowed from it ( Matter of Warder v. Bd. of Regents of the Univ. of the State of NY, supra). Moreover, there is a presumption of honesty and integrity accorded to administrative body members ( Matter of Yoonessi v. State Bd. for Professional Med. Conduct , 2 AD3d 1070, 1071 (3d Dept. 2003), lv. denied, 3 NY3d 607 (2004)).
Petitioner's allegation that Mahon should have recused himself from rendering the final administrative determination in this matter as a result of allegedly making public pronouncements of petitioner's guilt is without merit. The petition contends that Mahon met with and made a statement to the Yonkers District Office staff wherein he advised the staff that Joyce and petitioner were "responsible" for the deaths of the Maldonado / Arroyo children by reason of their failure to follow department protocol (Verified Petition, ¶ 7b) and further alleges that Mahon told the same thing to Deputy County Executive Laurence Schwartz and County Executive Andy Spano and testified to that fact before the Westchester County Board of Legislators ( Id., ¶¶ 7c, 7d, 7e). In support of her contention, petitioner attached a copy of Mahon's deposition testimony (as well as that of Mahon's Associate Commissioner of Human Resources, Bonnie Kamm) taken in petitioner's civil rights law suit currently pending in the Southern District of New York ( Byrnes v. Mahon, 07 Civ 0633 (CLB)).
While public statements that indicate an administrator's prejudgment of specific facts at issue in an adjudicatory proceeding are problematic, as they may have the effect of entrenching the official in the publically stated position and make it difficult for the official to reach a different conclusion after consideration of the record ( Matter of 1616 Second Avenue Restaurant, Inc. v. N.Y.S. Liquor Auth., supra at 162), mere familiarity with the facts of a proceeding or taking a public position on a policy issue related to the proceeding have been held insufficient to require disqualification ( Id.).
In his deposition testimony, Mahon acknowledged meeting with the Yonkers District Office staff right after the deaths of the children had occurred (Mahon Deposition, p. 64). He testified that the purpose of that meeting was to "talk to people about why we were preferring charges and what was happening and why it was happening" and that "people were charged for not doing their job" ( Id.). Mahon stated that it was necessary to have this meeting with the staff because the staff thought that the Department was acting because children died and Mahon "needed to explain that to staff so that they understood that this had nothing to do with child death, and it had everything to do with not doing your job." ( Id. at 92). Mahon further stated that neither of the individuals were identified by name to the staff ( Id. at p. 90), that petitioner was present for this meeting, and that he had not suspended her at that point because he "didn't know the extent of her not doing her job" which was not revealed to him until he read the transcript of the disciplinary hearing ( Id. at p. 86-87). As to statements made to Deputy County Executive Laurence Schwartz and County Executive Andy Spano, Mahon stated that he had conversations with Schwartz and Spano regarding what happened and then again to advise as to the results of the investigation and the preferring of charges ( Id. at 50-59). As to his testimony before the County Board of Legislators, Mahon stated that he initially advised that them that there was an on-going investigation and "some time thereafter" advised as to the results of the investigation that the supervisor "didn't follow protocols" in the context of a discussion about procedures put in place at the department in 2003 ( Id. at 32-34).
While these hearings were evidently taped, (Mahon Deposition, p. 33), no transcript or other record of Mahon's testimony before the Board of Legislators was provided to this Court.
None of the above statements disqualified Mahon from rendering the final administrative determination or required his recusal. His statements to his staff at the Yonkers District Office were designed to quell his employees' fears that they would face discipline if a child from one of their cases died regardless of whether they handled the case appropriately and in accordance with departmental procedures. He did not name any employee by name, and indeed, had not suspended petitioner at this point because he admittedly did not yet have enough information about what happened and therefore awaited the results of the hearing to make his determination. His statements to Schwartz and Spano were in accordance with his responsibility as the Commissioner of the County Department of Social Services to keep the County Executive apprised of the status of a high profile case involving the horrific deaths of two children. His statements to the Board of Legislators were in the same vein and were made in the context of policy considerations regarding procedures in place to prevent such deaths. In this regard, Mahon's general statements regarding the basic facts of the case and the charges involved do not demonstrate bias and are clearly distinguishable from those which were condemned by the Court of Appeals in Matter of 1616 Second Avenue Restaurant, Inc. v. N.Y.S. Liquor Auth., supra. In that case, which involved charges of underage drinking at the petitioner's premises, the Commissioner of the State Liquor Authority, in his testimony before the State Senate, stated that he was "going to bring [the petitioner] to justice" and that he was "trying to come up with alternate ways to establish by substantial evidence that in fact there was an under age person was served alcoholic beverages at [the petitioner's premises]." In contrast to that case, in the matter at bar, there is no indication that Mahon had already determined to find petitioner guilty of any of the twelve specific charges brought against her or intended to terminate her employment. Indeed, throughout his deposition testimony, Mahon indicated that he based his decision finding petitioner guilty of the charges and imposing the penalty of termination upon the record of the disciplinary hearing (Mahon Deposition, pp. 39, 43, 68, 86-7, 92). Given this, even assuming arguendo that petitioner established bias on Mahon's part, she has failed to establish that the result of the proceeding flowed from that bias ( see Matter of Warder v. Bd. of Regents of the Univ. of the State of NY, supra).
Petitioner's argument that Mahon should have recused himself and was disqualified from rendering the final administrative determination on the basis that he received information about the hearing de hors the record is also without merit. Petitioner specifically alleges that Mahon received reports about the case and updates about the hearing from various subordinates within his department and that his receiving of such information disqualified him from rendering a decision in this case. While it is true that it is improper for an administrative agency to base an adjudicatory decision upon information or evidence outside the record ( Matter of Simpson v. Wolansky, 38 NY2d 391 (1975); Matter of Spetalieri v. Quick, 96 AD2d 611, 612 (3d Dept. 1983)), petitioner has failed to demonstrate that Mahon actually relied upon any information outside the record in reaching his administrative determination in petitioner's case. To the contrary, in his deposition testimony, while acknowledging that he received certain limited information about the case and hearing from staff members (Mahon Deposition, pp. 9, 15, 41-43, 71-75, 87), Mahon stated that he read the transcript of the disciplinary hearing ( Id. at 67) and made clear that he based his decision in this case upon the record developed therein ( Id. at 39, 43, 68, 86-7, 92). As Mahon did not rely upon any outside information in rendering his determination and instead based his determination upon the evidence set forth in the hearing record, he was not disqualified from rendering the decision in this case ( see Matter of Smith v. Bd. of Educ. Onteora Cent. Sch. Dist., 221 AD2d 755, 758 (3d Dept. 1995), lv. denied, 87 NY2d 810 (1996); Matter of Joseph v. Stolzenberg, 198 AD2d 506 (2d Dept. 1993)).Petitioner's claim of bias on the part of the Hearing Officer must also be dismissed, as petitioner has failed to establish a factual demonstration in support thereof. Petitioner alleges that the Hearing Officer always finds in favor of the County and finds its witnesses to be credible because the County pays for his services and "regularly distorts and/or fabricates evidence' supportive of the County's legal conclusions" (Verified Petition, ¶ 7). Petitioner also alleges that at the conclusion of the hearing, the Hearing Officer issued "a materially false and misleading report" which recommended that petitioner be convicted of the charges and be terminated; however, petitioner does not elucidate as to what specifically in the report she considered to be false and misleading.
Petitioner has failed to provide factual evidence sufficient to overcome the presumption that the Hearing Officer was free from bias ( see Matter of McLean v. City of Albany , 13 AD3d 851, 852 (3d Dept. 2004)). Petitioner's bald allegations of Hearing Officer bias are insufficient to establish a factual basis in support of the allegation, and are also insufficient to prove that the outcome in this case flowed from that alleged bias ( see Matter of Warder v. Bd. of Regents of the Univ. of the State of NY, supra; Matter of Schindlar v. Inc. Vil. Of Lloyd Harbor, 261 AD2d 626 (2d Dept. 1999); see also Matter of Rice v. Belfiore, 15 Misc 3d 1105(A) (Sup. Ct. West. Co., 2007)). Moreover, a review of the hearing record and the report issued thereafter fails to substantiate petitioner's allegations of bias ( see Matter of Lennox v. Tarrytown Volunteer Fire Dept. , 50 AD3d 690, 691 (2d Dept. 2008); Matter of Schindlar v. Inc. Vil. Of Lloyd Harbor , supra; Matter of Correll v. Bucci, 19 AD3d 919, 921 (3d Dept. 2005)).
Lastly, petitioner alleges that the imposition of the punishment of termination was excessive because other supervisors in the Yonkers District Office were allegedly identically situated to her with respect to their failure to follow the same protocols that petitioner was accused of not following and these individuals were not terminated (Verified Petition, Point IV). Petitioner's position is again without merit. While petitioner points out that there were other supervisors with case workers who were not up to date with progress notes (Mahon Deposition, pp. 22-23), only two of the twelve charges (1(f) and 1(k)) preferred against petitioner dealt with the issue of case notes not being up to date. Petitioner provides no evidence that there have been any other supervisors similarly situated to her in regard to all of the allegations against her who were treated differently.
Investigations into child abuse allegations are sensitive matters and CPS supervisors have critical rolls to play in ensuring that investigations are conducted properly and in accordance with departmental protocols so as to best protect the children and families involved. Given the circumstances set forth in the record regarding petitioner's failure to fulfill her supervisory duties in regard to Joyce, the penalty of termination was not excessive. The penalty was not so disproportionate to the offense as to be shocking to one's sense of fairness and its imposition by respondent did not constitute an abuse of discretion ( Matter of Short v. Nassau Co. Civil Serv. Comm., 45 NY2d 721, 722 (1978); Matter of Pell v. Bd. of Educ., 34 NY2d 222, 233 (1974); see also Matter of Rutkunas v. Stout , 8 NY3d 897, 898 (2007) (where petitioner's conduct jeopardized public health and safety, penalty of dismissal was not excessive); Matter of Will v. Frontier Central Sch. Dist., 97 NY2d 690, 691 (2002) (same); Matter of Brey v. Bd. of Educ., 245 AD2d 613, 615 (3d Dept. 1997)).
Accordingly, the Article 78 petition is denied and the proceeding is dismissed.
This Decision constitutes the Order and Judgment of the Court.
2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment."
Coryell v. Smith, 274 Ill. App. 3d 543, 546,
653 N.E.2d 1317 (1995). The gravamen in an informed consent case requires the plaintiff to "point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it."
Coryell, 274 Ill. App. 3d at 546.
• 2 In the case before us, the first element was satisfied when Dr. Kraff testified that the standard of care in 1998 and 1999 required an ophthalmologist to inform a patient with abnormally large pupils that she had a higher risk for nighttime vision problems before obtaining the patient's consent to undergo a LASIK procedure. That the second element — the defendants failed to disclose the risk of nighttime vision problems to Ms. Davis — was satisfied is not directly challenged by the defendants. Instead, the defendants contend that prior to each LASIK surgery, Ms. Davis did not present abnormally large dilated pupils. Therefore, according to the defendants, the duty to disclose the material risk of nighttime vision problems associated with abnormally large dilated pupils was never triggered by Ms. Davis's dim-light pupils, which the defendants contend measured no larger than six millimeters in diameter. The trial centered on the third and fourth elements of the informed consent doctrine, which each party addressed through the testimony of their respective experts.
To simplify our review, we first note that the overall defense asserted by the defendants is that the duty to disclose was never triggered by the size of Ms. Davis's dilated pupils. This defense presented the jury with a fundamental question of fact: did Ms. Davis present abnormally large dilated pupils prior to each surgery? (It is uncontested that she had such a condition when she was examined by the Ohio ophthalmologists.) Only if the jury found Ms. Davis to have had abnormally large dilated pupils prior to the surgeries would the jury then need to determine the cause of her nighttime vision problems. In that instance, the jury could render a verdict in favor of Ms. Davis if the problems she experienced were the result of the heightened and undisclosed risk she faced as a person with abnormally large dilated pupils.
Third Element
To prove the third element in an informed consent case, Ms. Davis had to persuade the jury that a "reasonable person" in her position would have declined to undergo the LASIK surgeries had the additional risk of nighttime vision problems based on her claimed abnormally large dilated pupils been disclosed. "`[Only] if * * * disclosure would have caused a reasonable person in the position of the patient to refuse the surgery or therapy[] [is] a causal connection * * * shown.'" Lisowski v. MacNeal Memorial Hospital Ass'n, 381 Ill. App. 3d 275, 290, 885 N.E.2d 1120 (2008), quoting Schiff v. Friberg, 331 Ill. App. 3d 643, 657, 771 N.E.2d 517 (2002). In other words, Ms. Davis must present evidence to establish a causal connection between the nondisclosure and her postoperative condition. Lisowski, 381 Ill. App. 3d at 290.
Fourth Element
To prove the fourth element in an informed consent case, the plaintiff must demonstrate that the very risk she was uninformed about materialized, causing her injury. Coryell, 274 Ill. App. 3d at 546. If the particular risk did not materialize, the defendant's failure to disclose the risk, however erroneous, cannot give rise to an actionable claim because no showing can be made that the actual injuries suffered by the plaintiff were caused by the treatment. See Schiff, 331 Ill. App. 3d at 657 (to avoid a directed verdict on an informed consent claim, the plaintiff must present some evidence that the undisclosed risk materialized); Canesi ex rel. Canesi v. Wilson, 158 N.J. 490, 504-05, 730 A.2d 805, 812 (1999), citing Canterbury v. Spence, 464 P.2d 772, 790 (D.C. Cir. 1972); Nickell v. Gonzalez, 17 Ohio St. 3d 136, 139, 477 N.E.2d 1145, 1148 (1985) (requiring informed consent plaintiffs to show that "the unrevealed risks and dangers which should have been disclosed by the physician actually materialized] and [were] the proximate cause of the injury to the patient"). Thus, the jury could attribute the nighttime vision problems claimed by Ms. Davis to the undisclosed risk only if it first found her claim credible that prior to the surgeries her dilated pupils measured eight or nine millimeters. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 106, 658 N.E.2d 450 (1995) ("Without that element [of proximate cause], there would be no case"); Coryell, 274 Ill. App. 3d at 546.
Materialized Risk
Before addressing the evidentiary rulings by the circuit court, we first address Ms. Davis's suggestion in her main brief that she was not required to show that the undisclosed risk ever materialized. Relying on her reading of Schiff, Ms. Davis argues in her main brief that an informed-consent plaintiff need not "explain[] the precise mechanism of injury tracing the etiological link between the defendants' actions and the plaintiffs injury."
In Schiff, the plaintiff underwent an emergency colostomy when her bowel perforated during laparoscopic surgery performed by the defendant. Schiff, 331 Ill. App. 3d at 647. The defendant testified that bowel perforations were caused by preexisting diverticula on the colon that may have ruptured during the surgery. Schiff, 331 Ill. App. 3d at 651, 654-55. The defendant asserted on appeal "that the trial court's denial of a directed verdict on the informed consent count constituted error." Schiff, 331 Ill. App. 3d at 656-57. The defendant claimed "that there was `no evidence that the bowel was injured by a needle, a trocar, or other instruments'" used by the defendant during the surgical procedure. Schiff, 331 Ill. App. 3d at 657. In the absence of such evidence, "`neither the specific risk of injury as a consequence of perforation by an instrument nor the "increased risk" from adhesions never [ sic] materialized.'" Schiff, 331 Ill. App. 3d at 657. In other words, the plaintiff failed to establish "that her injury was caused by the risk of puncture by surgical instrumentation." Schiff, 331 Ill. App. 3d at 657.
The Schiff court explained that a directed verdict would lie only if the plaintiff failed to establish a prima facie case on the informed consent count. Schiff, 331 Ill. App. 3d at 657. By definition, a prima facie case is established by the presentation of "some evidence on every element essential to [the plaintiff's] cause of action." Kokinis v. Kotrich, 81 Ill. 2d 151, 154, 407 N.E.2d 43 (1980). The Schiff court found the testimony of the plaintiffs expert provided the evidentiary support that the undisclosed risk materialized sufficient to establish a prima facie case. The expert was asked "`whether, in fact, the perforations were caused by [the defendant doctor's] use of the various instruments during [the plaintiff's] laparoscopic procedure.'" Schiff, 331 Ill. App. 3d at 652. The expert answered, "`Certainly caused by something that happened during the laparoscopic procedure, yes.'" Schiff, 331 Ill. App. 3d at 652. We ruled the circuit court properly allowed the jury to render a verdict on the informed consent count because the plaintiff had made out prima facie case of negligence. Schiff, 331 Ill. App. 3d at 657-58. Contrary to Ms. Davis's claim that Schiff stands for the proposition that an informed consent plaintiff need not prove that the undisclosed risk materialized, Schiff stands for the simple proposition that once a prima facie case is made out, it falls to the jury, as finders of fact, to assess the "credibility of witnesses and * * * [resolve the] conflicting evidence." Schiff, 331 Ill. App. 3d at 658.
It remained Ms. Davis's burden to prove each of the elements in her informed consent case. Nolan v. Weil-McLain, 233 Ill. 2d 416, 430, 910 N.E.2d 549 (2009) ("a plaintiff bears the burden of producing evidence sufficient to establish each element of the claim"); Coryell, 274 Ill. App. 3d at 546. The corollary to this legal proposition is that the defendants were free to challenge the evidence Ms. Davis marshaled on the third and fourth elements of her claim with relevant evidence of their own. Leonardi, 168 Ill. 2d at 101 ("A defendant has the right * * * to rebut evidence tending to show that defendant's acts are negligent * * *").
Postsurgery Medical Studies
Ms. Davis first contends that the circuit court committed reversible error in allowing Dr. Schallhorn to testify regarding medical studies, the first of which was published in 2003. The studies found that abnormally large dilated pupils were not predictive of nighttime vision problems. Ms. Davis contends that her medical negligence action based on the doctrine of informed consent should not turn on medical studies that postdate her surgeries in 1998 and 1999. She argues that these postsurgery studies might lead the jury to dilute the standard of care the defendants were required to meet to fully inform Ms. Davis of the risks she faced in the surgeries. To support her argument, Ms. Davis quotes from a construction negligence case: "Postevent literature cannot be used to show the standard of care." Gray v. National Restoration Systems, Inc., 354 Ill. App. 3d 345, 360, 820 N.E.2d 943 (2004). While Ms. Davis's statement of law is accurate, the circuit court's ruling here did not violate the rule of law she quotes.
In the case before us, the circuit court ruled that testimony concerning postsurgical literature was a proper means of challenging Ms. Davis's evidence that she was injured by the LASIK surgeries. See Bergman v. Kelsey, 375 Ill. App. 3d 612, 631-32, 873 N.E.2d 486 (2007) (postevent medical literature admissible if not used "to show the standard of care"). Dr. Markowitz opined that "[i]f the ablation zone [of the eye surgery laser] is smaller than what the pupil dilates to," the patient may perceive glare or other distortions at night following the surgery. Dr. Louis testified that the large size of Ms. Davis's dilated pupils were the cause of her nighttime vision problems. Dr. Siegel opined that light passing through the untreated zone of Ms. Davis's cornea into her unusually large dilated pupils caused her nighttime vision problems. The circuit court admitted Dr. Schallhorn's testimony concerning postsurgical literature to directly challenge these opinions. The postsurgical-studies testimony did not pertain to the standard of care in 1998 and 1999, which Dr. Kraff conceded required an ophthalmologist to disclose the increased risk of nighttime vision problems to a patient with large dilated pupils.
Dr. Schallhorn's testimony regarding the postsurgery studies constituted relevant evidence that Ms. Davis's nighttime vision problems were not the result of her dilated pupils exceeding the zone of the largest eye surgery laser available in 1998 and 1999. Dr. Schallhorn testified that "low light pupil diameter will not predict those [LASIK] patients who will have * * * night vision problems," problems he attributed to uncorrected refractive error, dry eyes, corneal irregularity, and other "high-order aberrations." Stated in terms of the fourth element of Ms. Davis's informed consent case, the defendants introduced this evidence to support their contention that Ms. Davis was not "injured" by the LASIK surgery even if her dilated pupils measured eight or nine millimeters at the time of the surgeries, which the defendants' evidence disputed. See Coryell, 274 Ill. App. 3d at 546. The postsurgery studies called into question the generally held belief among ophthalmologists in 1999 — a belief apparently held by the plaintiffs experts at the time of trial — that light striking an untreated portion of the cornea as the light passes through the pupil to the retina causes post-LASIK glare, the precise injury claimed by Ms. Davis.
We also agree with the circuit court that Ms. Davis's concern that the jury might misapply the testimony amounts to no more than speculation, as Ms. Davis cannot demonstrate that the jury did in fact erroneously rely on such evidence to undermine the standard of care that prevailed in 1998 and 1999. See Eizerman v. Behn, 9 Ill. App. 2d 263, 279-80, 132 N.E.2d 788 (1956) ("evidence * * * competent for one purpose does not become incompetent because the jury might improperly consider it in some other capacity for which it could not properly be admitted"). The opposing party must request a limiting instruction or forfeit the issue. Eizerman, 9 Ill. App. 2d at 280 (if the opponent to such evidence fails to request a limiting instruction, "he is deemed to have waived any objection he may have").
The circuit court acted within its discretion in ruling Dr. Schallhorn's testimony, regarding the studies published after Ms. Davis's surgery, probative on the disputed elements of the plaintiffs informed consent theory.
Medication-Induced Mydriasis
Ms. Davis contends the circuit court committed a second reversible error in rejecting her objections at trial to the opinions of Drs. Kraff and Schallhorn that her mydriasis (enlarged pupil size) was caused by her use of certain antiallergy medication and antidepressants following surgery. Ms. Davis challenges the circuit court's ruling on four grounds.
First, Ms. Davis argues that the opinions of Drs. Kraff and Schallhorn connecting medication with her large pupil size are grounded on conjecture and speculation because no evidentiary basis exists to support the opinions. "[A]n expert's opinions and conclusions are still subject to the fundamental requirement that they have some evidentiary basis." Simers v. Bickers, 260 Ill. App. 3d 406, 411, 632 N.E.2d 219 (1994). "When the opinion of an expert is totally lacking in factual support it is nothing more than conjecture and guess and should not be admitted as evidence." Harris Trust Savings Bank v. Otis Elevator Co., 297 Ill. App. 3d 383, 393, 696 N.E.2d 697 (1998).
To support her contention, Ms. Davis marshals the testimony of her experts as to the size of her dilated pupils to demonstrate a lack of evidentiary basis for the opinions of the defendants' experts. Ms. Davis jumps from the uncontested fact that her pupils measured abnormally large when she was examined by the Ohio ophthalmologists, between eight and nine millimeters in diameter, to her claim that her pupils were abnormally large in dim lighting prior to the surgeries, a contention supported by a photograph taken prior to her surgeries apparently showing that she had large dilated pupils in 1995.
The problem with Ms. Davis's claim is that the jury also had before it testimony by KEI employees that Ms. Davis's pupil diameter measured five millimeters in dim light before her first surgery and six millimeters in dim light before her second surgery. The jury was also shown the videotapes of each LASIK surgery. Dr. Kraff testified that the videotape of Ms. Davis's first LASIK surgery showed Ms. Davis's pupils measured six millimeters in dim light. Dr. Schallhorn testified that the videotape of Ms. Davis's second LASIK surgery showed Ms. Davis's pupils varying in diameter from "three [to] maybe a little less than six" millimeters, depending on the lighting conditions.
We are aware of no authority that the defendants' evidence, directly contradicting Ms. Davis's claim that she had abnormally large dilated pupils prior to her surgeries, can somehow be disregarded in assessing the evidentiary support of the expert testimony introduced at trial. As we pointed out above, if the jury determined that Ms. Davis's dilated pupils measured no greater than six millimeters presurgeries, consistent with the defendants' contentions, then the entirety of Ms. Davis's informed consent claim necessarily failed. See Leonardi, 168 Ill. 2d at 106 ("Without that element [of proximate cause], there would be no case"). Ms. Davis would simply not fall within the group of LASIK patients that had a greater risk of night-time vision problems if her dilated pupils did not exceed the zone of coverage of the eye surgery lasers available in 1998 and 1999.
Ms. Davis's reliance on this court's ruling in Simers for support that the opinions of Drs. Schallhorn and Kraff were based on "conjecture and speculation" is simply misguided. In Simers, the defendant fitted the plaintiff with a pair of soft contact lenses. Simers, 260 Ill. App. 3d at 408. Following the fitting, the plaintiff complained of dry, itchy eyes, which the defendant treated with eye drops, stressing the importance of disinfecting the lenses after use. Simers, 260 Ill. App. 3d at 408. The plaintiff continued to experience eye problems, which caused her to be seen by numerous other eye professionals. Simers, 260 Ill. App. 3d at 408. Her problems worsened to the point that she was hospitalized with symptoms of near blindness. Simers, 260 Ill. App. 3d at 409. The plaintiff sued, contending her vision problems were caused by the negligent fitting of the contact lens by the defendant. Simers, 260 Ill. App. 3d at 410-11. The defendant's expert testified that the plaintiff's vision problems were caused by an infection, which developed from improper cleaning of the contact lens by the plaintiff. Simers, 260 Ill. App. 3d at 410-11. He testified his opinion was based on the hospital records, the depositions of the treating doctors, and photographs of the plaintiff's eyes. Simers, 260 Ill. App. 3d at 412. The jury returned a verdict in the defendant's favor. Simers, 260 Ill. App. 3d at 407. The Simers court reversed.
Based on the definition of conjecture as "a conclusion based on assumption not in evidence or contradicted by the evidence" ( Simers, 260 Ill. App. 3d at 412, citing Nelson v. Speed Fastener, Inc., 101 Ill. App. 3d 539, 428 N.E.2d 495 (1981)), the court held there was "no factual, scientific or expert evidence to support" the defense expert's opinion that the plaintiff's vision problems were infection-based when the record was barren of any evidence of bacteria in the culture of the cleaning solution the plaintiff used to care for her contact lens. Simers, 260 Ill. App. 3d at 412. In the absence of any evidence to support the defense expert's opinion "that plaintiffs eyes were infected due to her own lack of proper cleaning," the opinion was conjecture. Simers, 260 Ill. App. 3d at 413. As conjecture, the expert's opinion should never have been admitted at trial. See Harris Trust, 297 Ill. App. 3d at 393 ("When the opinion of an expert is totally lacking in factual support it is nothing more than conjecture and guess and should not be admitted as evidence").
In the instant case, that Drs. Schallhorn and Kraff testified that Ms. Davis's enlarged dilated pupils at the time of trial may have been caused by certain medications she was taking was not a concession that Ms. Davis's pupils dilated to eight or nine millimeters prior to the surgeries. The evidence conflicted as to the size of Ms. Davis's dilated pupils prior to each surgery. The conflict in the evidence as to Ms. Davis's dilated pupil size prior to surgery provided evidentiary support for the explanation offered by the defendants that Ms. Davis's abnormally sized dilated pupils as testified to at trial were medication induced. Consistent with this contention, Ms. Davis testified that following her surgeries she had been prescribed a class of drugs that the defendants' experts linked to enlarged pupils. Drs. Schallhorn and Kraff relied on scientific evidence, including authoritative textbooks and their own experience to offer the explanation that Ms. Davis's enlarged pupils at the time of trial were medication related. The experts were thoroughly cross-examined on their opinions; we are aware of no authority that dictates that their opinions could not be considered by the jury.
On the record before us, we find an evidentiary basis for the conflicting opinions of the experts offered by both sides. We reject Ms. Davis's claim that the opinions of the defendants' experts were based on speculation and conjecture. See Harris Trust, 297 Ill. App. 3d at 393-94 (trial court erred in directing a verdict when record evidence minimally supported claim of direct negligence against elevator company based on a reasonable inference that an employee manipulated controls to allow elevator to operate in an unsafe condition); Lisowski, 381 Ill. App. 3d at 289 (when patient's state of mind at time consent given for surgical procedure is disputed, it falls to the jury to resolve the dispute); Bergman, 375 Ill. App. 3d at 625-26 (it is within the province of the jury to resolve evidentiary conflicts).
Second, Ms. Davis claims that the opinions should have been excluded because Dr. Kraff's opinion is contradicted by his own testimony that he personally ruled out medication-induced mydriasis as a diagnosis after Ms. Davis's symptoms did not improve when he told her to stop using Allegra-D in June 1999. Ms. Davis, however, fails to set out the testimony by Dr. Kraff that purportedly contradicts his opinion to support her contention. Our review of the record reveals no such testimony by Dr. Kraff.
Dr. Kraff never diagnosed Ms. Davis with mydriasis, medication-induced or not. As we noted, according to the defendants' records, Ms. Davis's dim-light pupils never exceeded six millimeters presurgery. To rebut the inference from the plaintiffs experts that Ms. Davis likely had abnormally large dilated pupils prior to her surgeries, Dr. Kraff testified that several prescriptions, not limited to Allegra-D, could have caused Ms. Davis's later mydriasis. Even if Dr. Kraff had ruled out Allegra-D as a cause of her nighttime vision problems after she claimed to have stopped taking it for several days, no testimony is quoted that he ruled out the additional prescription drugs Ms. Davis was taking, including Zoloft and Cymbalta.
There is also no basis to discount the testimony of Dr. Schallhorn and Dr. Kraff simply because neither examined Ms. Davis after 1999. As experts, their opinions were based upon Ms. Davis's medical history, review of authoritative textbooks and studies, and personal experience. It is unfair to characterize their testimony as conjecture based on the absence of an examination of Ms. Davis near the date of her trial when she fails to provide us with direct authority to support that claim. Drs. Schallhorn and Kraff did not rely on implied facts not present in the medical records to reach their opinions (see Coffey v. Brodsky, 165 Ill. App. 3d 14, 25, 518 N.E.2d 638 (1987)); nor did they base their opinions on their own later investigations when circumstances may have changed (see Dyback v. Weber, 114 Ill. 2d 232, 244-45, 500 N.E.2d 8 (1986)). Their opinions had adequate factual and scientific bases; the defendants were entitled to present them to the jury.
Ms. Davis also seeks to make much of the absence of a diagnosis of mydriasis by her three Ohio ophthalmologists or Dr. Siegel. We find no basis to question Dr. Kraff's assertion that mydriasis merely describes an enlarged dilated pupil, a condition the four doctors noted present in Ms. Davis after 1999 and in the 1995 photograph. That no diagnosis of medication-induced mydriasis was made simply reflects a difference of opinion concerning the cause of her enlarged pupils, not the absence of evidentiary support for the opinions of the defense experts simply because they are contrary to the opinions of the plaintiffs experts. The disagreement over the cause of Ms. Davis's enlarged pupils, or mydriasis, was for the jury to resolve. Lisowski, 381 Ill. App. 3d at 289; Bergman, 375 Ill. App. 3d at 625-26.
Third, Ms. Davis contends that the opinions of Drs. Schallhorn and Kraff improperly relied upon general pharmacy texts. Our reading of the record reflects that the general pharmacy texts were not the only bases for the offered opinions. Dr. Schallhorn testified that his opinion was additionally based upon his own experience of medication-induced mydriasis in rare cases. Dr. Kraff testified that his opinion was additionally based upon a specific article linking large pupils with certain medications Ms. Davis was using.
Professor Fiscella testified that the general language in the texts called into question whether medication-induced mydriasis could be linked to a specific drug. The testimony of Drs. Schallhorn and Kraff sought to establish such a link with the drugs Ms. Davis had taken postsurgery. It then fell to Ms. Davis "to challenge the sufficiency or reliability of the basis for the expert's opinion during cross-examination, and[, if the opinions are not excluded,] the determination of the weight to be given the expert's opinion is left to the finder of fact." Adams v. Family Planning Associates Medical Group, Inc., 315 Ill. App. 3d 533, 550, 733 N.E.2d 766 (2000). While Ms. Davis may have effectively challenged the opinions of the defense experts through the testimony of her own experts ( Adams, 315 Ill. App. 3d at 550), it was the province of the jury to resolve this battle between the experts. Lisowski, 381 Ill. App. 3d at 289; Bergman, 375 Ill. App. 3d at 625-26.
Finally, Ms. Davis argues that neither Dr. Kraff nor Dr. Schallhorn was qualified to give an opinion regarding medication-induced mydriasis. "Expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact in understanding the evidence." Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). As for medical experts, "the physician must be a licensed member of the school of medicine about which he proposes to testify" and must be "`familiar with the methods, procedures, and treatments ordinarily observed by other physicians.'" Jones v. O'Young, 154 Ill. 2d 39, 43, 607 N.E.2d 224 (1992), quoting Purtill v. Hess, 111 Ill. 2d 229, 243 (1986).
Ms. Davis essentially argues that Drs. Kraff and Schallhorn, as ophthalmologists, were not competent to offer opinions concerning the effects of medications on the pupils because their specialty fell outside the fields of pharmacy or pharmacology, a new twist on her third basis to exclude the defense opinions. The "same school of medicine rule" requires only that an expert be licensed in the same field to give testimony on the medical negligence standard of care. Ruffin v. Boler, 384 Ill. App. 3d 7, 19, 890 N.E.2d 1174 (2008). As we made clear above, the standard of care was not disputed by the defendants; nor were the opinions of Dr. Kraff and Dr. Schallhorn introduced for that purpose. The "same school of medicine rule" does not apply to a defense expert's testimony that addresses only the causation and injury issues. Rufftn, 384 Ill. App. 3d at 19 ("The restriction as to who may serve as an expert applies to testimony ` concerning the standard of care'" (emphasis in original)), quoting Greenburg v. Michael Reese Hospital, 83 Ill. 2d 282, 291-92, 415 N.E.2d 390 (1980).
We also note Ms. Davis sued an ophthalmologist; we are aware of no authority that prevents an ophthalmologist from giving an opinion in a suit against an ophthalmologist. See Schiff, 331 Ill. App. 3d at 658 (claim rejected that plaintiffs medical expert with "board certification in gynecology" not qualified to testify against medical defendant with "board certification in gynecology, reproductive endocrinology and fertility"). As the defendants emphasize in their brief, Ms. Davis seems to suggest that no medical doctor is competent to testify to the side effects of medications even though they are licensed to write prescriptions. Such a rule would be unprecedented.
We reject each of Ms. Davis's arguments that the opinions of the defense experts should have been excluded from the jury as to medication-induced mydriasis.
General Verdict
In addressing each of the issues raised on appeal by Ms. Davis, we found no error in the circuit court's rulings. We nonetheless point out that even if we were to rule that the circuit court erred in admitting the defense experts' testimony, neither separately nor in combination would the errors be reversible. Each alleged error could have been meaningless. See Tabe v. Austrian, 388 Ill. App. 3d 398, 404-05, 902 N.E.2d 1153 (2009) ("The jury's analysis here might well have concluded with a verdict in favor of the defendant doctors without reaching the [disputed] element * * *").
The jury may well have decided that the defendants accurately measured Ms. Davis's dim-light pupils prior to each surgery at no more than six millimeters. Such a factual finding by the jury would preclude the necessary foundation to trigger the defendants' duty to disclose the material risk based on abnormally large dilated pupils because Ms. Davis presented dim-light pupils within the normal range in 1998 and 1999. If Ms. Davis had dim-light pupils within the normal range, as the defense evidence tended to show, then Ms. Davis never actually faced the material risk she claimed the defendants failed to disclose to her and could not have been injured by the LASIK procedures. See Coryell, 274 Ill. App. 3d at 546. Without a special interrogatory that reveals the jury's findings on this dispositive factual issue, our review of the jury's general verdict is foreclosed. "[If] `the mental processes of the jury have not been tested by special interrogatories to indicate which of the [multiple] issues was resolved in favor of the successful party, it will be presumed that all issues were so determined * * *.'" Strino v. Premier Healthcare Associates, EC, 365 Ill. App. 3d 895, 904, 850 N.E.2d 221 (2006), quoting H.E. Culbertson Co. v. Warden, 123 Ohio St. 297, 303, 175 N.E. 205, 207 (1931).
CONCLUSION
As commonly happens in a medical malpractice case, the persuasiveness of Ms. Davis's action boiled down to which of the opposing experts persuaded the jury. In the course of allowing the defendants to challenge the disputed elements of the plaintiffs informed consent case, the circuit court properly admitted the testimony of the defendants' expert on postevent studies and medication-induced mydriasis over the numerous objections by Ms. Davis. The circuit court properly admitted such relevant testimony to assist the jury in reaching a fair verdict. We find no grounds to grant Ms. Davis a new trial.
Affirmed.
CAHILL and McBRIDE, JJ., concur.