Proximate Cause Lacking in Opioid Addiction Case Against Pain Management Physician Absent Expert Testimony from an Addictionologist

February 11, 2019 / CM Reports / Writing and Speaking

In a split decision, the Illinois Appellate Court, First District holds that a medical malpractice plaintiff failed to prove proximate cause against a pain management physician where there was no evidence from an addiction expert connecting the defendant’s failure to identify the patient’s opioid addiction and her death/suicide by acetaminophen overdose. Plaintiff’s sole medical expert was not an addiction specialist and could not say whether the patient would have seen an addictionologist had the pain management physician referred her to one, or what an addictionologist would have done to help the patient. Guerra v. Advanced Pain Centers, 2018 IL App (1st) 171857; 2018 Ill. App. LEXIS 880.

Facts

From 2005 to 2009, Jill Guerra took opioid pain medications and underwent three surgeries to relieve neck pain resulting from a 1982 car accident. After the third surgery, Jill spent a few days in a psychiatric hospital, where doctors diagnosed Jill with major depressive disorder and anxiety disorder. In October 2009, Jill underwent a psychological evaluation to assess her risk for addiction but was found not to be at risk of abusing her medication. When later asked by her pain management doctor to go for another psychological evaluation, Jill refused. In July 2010, that same doctor discharged Jill from her care after discovering Jill received additional pain medication from her primary care physician. 

A month later, Jill’s primary care physician suggested she get a psychiatric consultation, which she declined to undergo. Jill found another pain management doctor who saw her for a month before referring her to defendant Dr. Lipov in September 2010. By the time Jill came under Dr. Lipov’s care, she had seen four pain management doctors, underwent three surgeries, and received four referrals to a mental health professional (although she saw a mental health professional only once).

Dr. Lipov monitored and modified Jill’s pain medication based on her complaints of pain. During the 10 months he treated her, Dr. Lipov prescribed Norco, Dilaudid, Vicoprofin, and Opana (opioids), and Klonopin and Xanax (anti-anxiety medications). Twice during her treatment with Dr. Lipov, Jill called and complained that the pharmacy shorted her opioid prescriptions. Both times Jill received a new prescription to make up for the lost pills. Jill also increased her medication on her own, which came to light when she called Dr. Lipov’s office to refill prescriptions early.

On July 14, 2011, Jill told Dr. Lipov that she spent two days in the hospital and was unsure what had happened. She informed Dr. Lipov that she wanted to start coming off medications. Dr. Lipov decreased the strength of Jill’s prescription. But, at her next appointment on July 21, he increased the strength of Jill’s opioid prescription to counter an increase in Jill’s pain after another surgery. Three days later, Jill suffered an acetaminophen overdose and died. 

Jill’s husband John filed a wrongful death action, based on medical malpractice, against Advanced Pain Centers and Dr. Lipov. The case was tried in May 2016. John relied on the testimony of a single expert witness, Dr. Steven Richeimer, who specializes in pain management. Richeimer testified that he was not offering opinions as a psychiatrist. He testified that there were numerous “red flags” that Jill was addicted to opioids including running out of medication early, reporting a high level of pain scores, requesting early medication refills, taking more medication than prescribed, requesting specific medications, seeking medication from other doctors, requesting stronger doses of medication, claiming pharmacy errors in filling a prescription, and unexplained emergency room visits. Richeimer testified that Dr. Lipov failed to meet the standard of care for a pain management doctor by not recognizing these signs of opioid addiction, and a prudent pain management doctor would have discussed addiction with Jill and referred her to an addictionologist, and sent her to a detox program or weaned her off the pills himself. John did not present an expert to testify about what treatments were feasible and how they may have helped Jill. 

On cross-examination, Richeimer agreed that some aspects of Dr. Lipov’s treatment helped Jill, and that the injections, radio frequency treatments, and referral to an orthopedic surgeon were within the standard of care. He also agreed that Jill was likely addicted to opioids at least as early as 2009 and her treating physician should have weaned her off them then. 

The jury returned a general verdict in favor of John but found Jill to be 50% responsible for her own death and awarded no damages. Dr. Lipov moved for judgment notwithstanding the verdict arguing that Richeimer was not an addiction specialist. The trial court granted the JNOV motion because John did not present expert testimony about what treatments were feasible and how they may have helped Jill. John appealed.

Analysis

The First District Appellate Court affirmed. “Proximate cause in a medical malpractice case must be established by expert testimony to a reasonable degree of medical certainty, and the causal connection must not be contingent, speculative, or merely possible.” Here, the Court found that John failed to prove proximate cause because Richeimer’s testimony leaves an evidence gap. Richeimer is not an addiction specialist and John needed to present testimony from an addiction expert to link Dr. Lipov’s alleged deviations from the standard of care to Jill’s death, which resulted from suicide by Tylenol overdose. 

The Appellate Court cited Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967 (1997), and Townsend v. University of Chicago Hospitals, 318 Ill. App.3d 406 (2000), in support of its holding. In Aguilera, the decedent went to the emergency room complaining of weakness on the left side of his body. After he began suffering seizures, he was given a CT scan, which revealed a massive intracerebral hemorrhage. The plaintiff’s expert testified that assuming a prompt CT scan, he would have deferred to a neurosurgeon to decide whether surgical intervention was appropriate. A second expert testified that he would seriously consider, if not defer to the neurosurgeon’s opinion. But, the only two neurosurgeons to testify agreed with the treating neurologist that surgery would not have been appropriate, even with an earlier CT scan. 

The appellate court upheld the trial’s court’s judgment notwithstanding the verdict, finding that the experts’ opinions failed to establish proximate cause. “Without supporting testimony from a neurosurgeon, plaintiff’s experts’ testimony was insufficient to show that neurosurgery, much less effective neurosurgery, should have occurred absent defendants’ negligence.” “The absence of expert testimony that, under the appropriate standard of care, an analysis of an earlier CT scan would have led to a surgical intervention or other treatment that may have contributed to the decedent’s recovery creates a gap in the evidence of proximate cause fatal to the plaintiff’s case.”

In Townsend, the plaintiff’s expert witnesses claimed the hospital negligently failed to seek an imaging study for the decedent. The hospital admitted the decedent and improperly treated her for a kidney infection. The decedent died from septic shock caused by an undiagnosed kidney stone, which the medical staff would have found had they followed the standard of care and done an imaging study. Had they ordered the imaging study and found the kidney stone, a radiologist or a urologist would have decided the course of treatment. The plaintiff failed to present testimony from either a radiologist or urologist. The court stated, “there is no evidence of what a urologist or interventional radiologist would have done to relieve the obstruction. No one said what the treatment would have been. No one said whether the right treatment was available or whether [decedent] was a candidate for it. We conclude the jury in this case was left to speculate about proximate cause.”

The Appellate Court rejected John’s attempted reliance on Johnson v. Ingalls Memorial Hosp., 402 Ill. App. 3d 830 (2010). In Johnson, plaintiff’s expert witness testified that, if the hospital staff had monitored the decedent after his first heart attack, they would have sooner noticed signs of his second heart attack. Earlier notice would precipitate an earlier intervention preventing oxygen deprivation and brain death (the cause of death several months after the second heart attack). The appellate court reversed JNOV for the defendant, finding the testimony adequately established that the hospital staff’s negligent failure to monitor proximately caused the decedent’s injury (brain death).

The Appellate Court here explained: 

Even if we accept John’s argument that Richeimer opined that Lipov should have weaned Jill off her medication or sent her to an addictionologist, Richeimer’s testimony alone does not establish proximate cause. Richeimer only established that there was a “mere possibility” that intervention by Lipov could have halted Jill’s addiction. Moreover, unlike in Johnson, where an expert witness testified that monitoring a patient could have led to earlier intervention and prevented his death, neither Richeimer (who, as noted, was not offering opinions in the area of psychiatry) nor any other witness testified that if she had been weaned from opioid medications, Jill, who had a history of depression, would not have committed suicide by overdosing on Tylenol, a non-opioid, over the counter medication.

Like Aguilera, there is no expert evidence connecting Lipov’s failure to identify Jill’s addiction to opioids and her suicide by Tylenol overdoes. No evidence indicates that Jill would have seen an addictionologist had Lipov referred her to one. No evidence indicates what, if anything, an addictionologist would have done to help Jill with her addiction. And no evidence indicates that Jill would have gone to a detox program or would have willingly reduced her pills if Lipov had intervened. Most significantly, no evidence shows that had Lipov taken the steps Richeimer recommended to treat her opioid addiction, it is more likely than not that Jill would not have died from a Tylenol overdose.

Justice Pucinski authored a lengthy dissent. According to Justice Pucinski, “[t]here is no evidence gap. We know everything we need to know about Jill’s treatment by Dr. Lipov. He blew it.”

Learning Point: Expert testimony from an addiction specialist or addictionologist is required to establish proximate cause in a medical malpractice case alleging that if a pain management physician had recognized a patient’s opioid addiction and referred the patient to an addictionologist, a detox program, or attempted to wean patient off pain medications himself, the patient more likely than not would not have died/committed suicide by Tylenol overdose.

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