Expert Testimony Not Required To Establish Pain And Suffering

Dr. LaSpisa, an oral surgeon, extracted several of Nicole Thompson’s teeth. She subsequently developed an infection that was not diagnosed or treated for two days. She developed painful cellulitis and was hospitalized for IV antibiotic treatment. She was discharged from the hospital after five days…, Illinois Appellate Court Rules Expert Testimony May Not Be Required To Establish Pain And Suffering In Medical Malpractice Claims, Oct 2023


The Appellate Court of Illinois First Judicial District Second Division stated in its August 29, 2023 Opinion:


Thompson claims (among other things) that, by his failure to make himself available, Dr. LaSpisa failed to give her the correct advice—to go to the hospital, the ER, immediately—when he should have, and the delay in her doing so for some 18 hours led to two distinct injuries. The first injury is that her condition worsened to an extent that it would not have, had she gone to the hospital immediately. That led, in turn, to a longer hospital stay than would have been necessary had she immediately gone to the hospital.


In our view, expert testimony would be necessary to establish a proximate causal relationship for this injury. The difference between how much Thompson’s facial cellulitis would have progressed had she immediately received emergent hospital care, versus how much it did progress with those additional 18 hours lacking such care, requires knowledge beyond the ken of the layperson. We know there was a delay in her treatment, and we know from her testimony, the medical records, and the grisly photos that her condition worsened over those 18 hours. We also know that her swelling improved quite soon after she was hospitalized.


We do not know, however, whether earlier treatment would have prevented that additional swelling or whether this particular infection would have reached its full potential, anyway, even if immediately treated. We do not know whether or to what extent her hospital stay would have been shortened, either. To answer these questions would require a firm knowledge of the finer points of facial cellulitis. The average person knows nothing of that affliction, its treatment, and its course of progression; expert testimony was necessary to explain it.


Thompson’s other claim of damages, however, is the pain and suffering she endured during those 18 hours. We know from her testimony and the record that she suffered pain throughout these 18 hours; that it persisted and even worsened during that time; and that, once she was hospitalized and given stronger medication, the pain began (and continued) to subside.


The layperson may not know about the minutiae of facial cellulitis, but everyone understands the basics of pain relief. The stronger hospital medication relieved Thompson’s pain once she took it; had she started taking it 18 hours earlier, her pain would have begun to subside 18 hours sooner. Specialized knowledge is not required for a juror to make that connection.


That is not to say that Dr. LaSpisa could not challenge this notion; our only point is that expert testimony is not required. So it was error to enter summary judgment in Dr. LaSpisa’s favor on the issue of proximate cause insofar (and only insofar) as it concerns Thompson’s claim of pain and suffering. She has established a colorable causal connection between the alleged deviation from the standard of care and her pain and suffering. In all other respects, the grant of summary judgment, based on the lack of expert testimony to prove proximate cause, was proper.


[Furthermore,] we do not feel compelled to shoehorn Thompson’s negligence claim into one solely of “patient abandonment,” impose a requirement that Dr. LaSpisa must have knowingly refused to treat her, and thus affirm judgment in his favor, rewarding him for the very breach of duty that, at the summary judgment stage, we must assume he breached.


The judgment of the circuit court is affirmed in part and reversed in part. Plaintiff’s negligence action survives summary judgment only to the extent that she seeks damages of pain and suffering as indicated in this opinion. We affirm summary judgment in all other respects and remand this cause for further proceedings.


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