Jury Awards $3.5 Million to Breast Cancer Patient After Catheter Fragment Left to Migrate to Her Heart

In April 1989, a surgeon at Evanston Hospital in Illinois placed a catheter in a vein below the collarbone of Diane Dillon, who was being treated for breast cancer. The device, about 16 centimeters long, let her receive chemotherapy and have blood drawn without repeated needle sticks.

When the catheter stopped working after her treatment ended, Dr. Stephen Sener removed it on July 13, 1990. He took out only about seven centimeters of it. A nine-centimeter piece stayed inside her, and neither she nor the surgeon knew. A chest X-ray taken at the hospital that December did not lead anyone to tell her of a problem.

She learned the truth in December 1991, when a routine chest X-ray at a different hospital showed the fragment had traveled to her heart. One end was embedded in the wall of a heart chamber and the rest floated free. Dr. Sener recommended against trying to take it out, since an attempt could tear the heart wall or push the fragment deeper. She consulted other physicians, nearly all of whom agreed, and she chose to leave it in place. The risks that came with living alongside it included infection, an irregular heartbeat, perforation of the heart, and further migration of the fragment. None had occurred by the time of trial, but she lived with constant anxiety about it.

Dillon sued in Cook County Circuit Court. Her case went before a jury in Chicago in late 1997 against Dr. Sener, the hospital, the catheter's manufacturer, a radiologist and a nurse. Corboy & Demetrio represented her, with Thomas A. Demetrio, Barry R. Chafetz, Kenneth T. Lumb and Philip H. Corboy named as counsel in the Illinois Supreme Court opinion, alongside Michael T. Reagan of an Ottawa firm. Her theories covered negligent insertion, negligent removal and failure to tell her a piece remained. Several experts criticized the surgeon's work, and the defense argued the care met the standard.

The jury found for Dillon against Dr. Sener and Evanston Hospital and for the other defendants. It awarded $1.5 million for past pain and suffering, $1.5 million for future pain and suffering and $500,000 for the increased risk of future injury, a total of $3.5 million. She had not asked for medical expenses.

The defendants appealed. The appellate court affirmed over one dissent, and on May 23, 2002 the Illinois Supreme Court upheld the liability findings and the $3 million in pain and suffering awards, rejecting challenges to the amended complaint, the jury instructions, an animated video about heart infection and the exclusion of a second defense expert. It reversed only the $500,000 element, holding that Illinois allows damages for increased risk of future injury but that the jury had to be told the award must reflect how likely the harm was, and it sent that one question back for a new trial. We could not find the outcome of that retrial.