Auten v. Franklin ( 2010 )

NO. 4-09-0541 Filed 10/6/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DAWN AUTEN, f/k/a DAWN BARNETT, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
CHRISTINE FRANKLIN, ) No. 05L19
Defendant, )
and )
LARRY NORD and CENTRAL ILLINOIS ) Honorable
ORTHOPEDIC SURGERY, S.C., ) John W. Belz,
Defendants-Appellants. ) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
Defendants, Dr. Larry Nord and Central Illinois Ortho-
pedic Surgery, S.C. (medical defendants), appeal from a jury
verdict in favor of plaintiff, Dawn Auten, resulting from inju-
ries plaintiff received from an automobile accident with defen-
dant, Christine Franklin, and the medical treatment given by the
medical defendants. Plaintiff's injuries included a right
forearm fracture and a dislocated right index finger. The
medical defendants contend (1) the trial court erred in giving
jury instructions failing to differentiate between the injuries
caused by Franklin and those caused by the medical defendants,
injecting insurance into the case, and confusing the jury on the
consideration to be given expert witness testimony; (2) the court
erred in limiting or denying evidence qualified radiologists were
not able to diagnose plaintiff's dislocated finger prior to the
medical defendants' failure to do so; and (3) errors occurred in
both opening statement and closing argument denying the medical
defendants a fair trial. Because the verdict form failed to
differentiate between the injury caused solely by Franklin to
plaintiff's forearm and the injury caused to the index finger for
which both Franklin and the medical defendants are liable, we
reverse.
I. BACKGROUND
On December 11, 2003, a vehicle driven by Franklin
collided with a vehicle driven by Timothy Auten in Springfield.
Plaintiff was a passenger in Auten's vehicle. Plaintiff was
injured and taken to the emergency department of Memorial Medical
Center (Memorial) in Springfield where she was seen by emergency-
room physician Dr. Ronald Pickett.
Dr. Pickett diagnosed a two-bone fracture of plain-
tiff's right forearm. Dr. Roger Haag, a clinical radiologist,
was asked to read an X ray of the front and lateral views of the
right forearm, verifying these fractures. He did so, finding
plaintiff had fractured the mid-portion of the right radius and
ulna. He saw no other fractures in the X rays of the forearm. A
specific X ray of plaintiff's hand was not taken at Memorial.
Plaintiff claimed she was in excruciating pain when her
right arm was raised by holding on to her index finger in order
to take the X rays. She reported she had braced for the impact
of the automobile accident using her right hand.
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Plaintiff was also seen at Memorial by orthopedic
surgeon Dr. Michael Watson and orthopedic resident Dr. Joseph
Norris. Dr. Watson gave plaintiff the choice of having her right
forearm fractures internally set by an orthopedic surgeon in
Bloomington since she lived there. Plaintiff chose to do that
and saw Dr. Larry Nord, a surgeon employed by Central Illinois
Orthopedic Surgery, S.C. Dr. Nord scheduled surgery for December
13, 2003.
On January 15, 2005, plaintiff filed suit against
Franklin, seeking to recover damages for injuries she suffered as
a result of the automobile accident. On April 5, 2006, plaintiff
filed an amended complaint, adding as defendants Dr. Pickett,
Midwest Emergency Department Specialists, Ltd., Dr. Norris,
Memorial Medical Center, Dr. Haag, Clinical Radiologists, S.C.,
Dr. Nord, and Central Illinois Orthopedic Surgery, S.C. Plain-
tiff alleged the newly added defendants failed to diagnose a
dislocated index finger. When the case proceeded to trial on
March 2, 2009, the remaining defendants were Franklin, Dr. Nord,
and Central Illinois Orthopedic Surgery, S.C.
Dr. Nord performed an open reduction internal fixation
on December 13, 2003, and advised plaintiff she may not get a
return of her radial nerve sensory function. He did not notice
anything unusual about plaintiff's index finger. Following her
surgery, Dr. William Cooley, a board-certified radiologist,
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reviewed postoperative X-ray film of plaintiff's right forearm
and right hand to determine if the surgery had resulted in
properly setting plaintiff's forearm bones. He reported it did.
Following the surgery, Dr. Nord saw plaintiff 13 times
for follow-up care. He testified he palpated her hand, including
her index finger, every time her cast was changed. Dr. Nord
stated plaintiff had kind of chubby hands and swelling on top of
that from the forearm fracture. It took six months for the
fractures to heal, and she had swelling in her hand the entire
time.
Dr. Nord testified he did not receive any specific
complaint of pain in plaintiff's right index finger. Even after
she started hand, wrist, and elbow motion exercises, plaintiff
did not make any complaints of pain in regard to her right index
finger. There are no notations in Dr. Nord's medical records in
regard to plaintiff indicating she made any complaints of pain.
Plaintiff insists she made complaints of hand and
finger pain regularly to Dr. Nord and other employees of Central
Illinois Orthopedic Surgery during the course of her treatment by
them.
On June 14, 2004, Stephanie Roberts, a licensed physi-
cal therapist employed by Neuro Ortho Rehab Center, an outpatient
physical therapy clinic, saw plaintiff for a physical-therapy
initial evaluation. Plaintiff had been referred by Dr. Nord.
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Plaintiff complained of an ache in the right wrist and fingers.
She stated she had no feeling in the right fingers and had
throbbing pain when she lay down. She also complained of pain in
the second metacarpal and finger and a bump at the second meta-
carpal (the index finger).
Roberts palpated plaintiff's right index finger and
discovered a "hard, bony-like protrusion *** at the distal first
metacarpal." (Roberts acknowledged the injury was actually at
the second metacarpal and she erroneously charted it as the
"first" metacarpal.) Roberts wrote in plaintiff's medical chart
the symptoms in regard to plaintiff's finger were the result of
the automobile accident in December 2003. This information was
related to her by plaintiff.
Plaintiff saw Roberts again on June 21, 2004, and at
that time complained of moderate tenderness as a result of
palpation at the second metacarpal. She was having increased
pain as her splint was hurting the first and second metacarpal
region and she requested to see Dr. Nord as soon as possible.
On June 26, 2004, a sagittal view computerized
tomography (CT) scan was performed of plaintiff's right index
finger. This scan disclosed the dislocation of her right index
finger. Dr. Nord had ordered this scan to look at the radius in
her forearm three-dimensionally to determine why that fracture
was not healing and to get a three-dimensional look at the
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metacarpal phalangeal joint around her right index finger to see
what was the exact condition and alignment of the bone structure.
Dr. Nord was "shocked" to find a dislocation after the
CT scan and then performed surgery on plaintiff's finger on June
29, 2004. A second procedure was performed on July 19, 2004, and
then plaintiff was referred by Dr. Nord to a hand specialist, Dr.
Frank Lee.
On July 22, 2004, Dr. Lee saw plaintiff. He noted
plaintiff had dislocated the bones making up the knuckle of her
right index finger. Dr. Lee had her continue with therapy. He
continued to see plaintiff and eventually performed surgery on
her finger October 19, 2004. Dr. Lee continued to prescribe
vigorous therapy but eventually performed fusion surgery on
January 6, 2005. He considered the fusion a success but only saw
plaintiff for one follow-up visit. Dr. Lee testified if there is
more than one injury, the pain of a dislocation may be over-
whelmed by the pain of the other injury.
On August 3, 2006, plaintiff sought treatment from Dr.
Mitchell Rotman, an orthopedic surgeon specializing in elbows,
shoulders, and hands. Dr. Rotman operated on plaintiff and
scraped out scar tissue and removed wires which were inserted at
the time of the fusion in order for plaintiff to regain more
range of motion. Plaintiff testified after this surgery she not
only regained motion but the pain decreased also.
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Dr. Rotman testified, as plaintiff's medical expert
witness, it was a breach of the standard of care for a reasonably
well-qualified orthopedic surgeon to miss the warning signs of
the finger injury which were presented. The X rays taken and
reviewed by Dr. Nord himself were diagnostic of plaintiff's right
index finger dislocation. It was also Dr. Rotman's opinion, as
it was all the other doctors who were asked, including Dr. Nord,
a patient with a dislocated finger as plaintiff had would have
been in extreme pain and would have been expected to complain
about it to her physician. Rotman did concede plaintiff's finger
dislocation was an unusual presentation but was adamant it could
have been discovered earlier and, thus, would not have involved
the degree of damage presented by torn and stretched ligaments
and tendons encountered by the late diagnosis and treatment in
this case.
Dr. Mark Cohen, an orthopedic surgeon specializing in
the hand, wrist, forearm, and elbow, testified as the medical
defendants' medical expert witness. Dr. Cohen reviewed the X-ray
films taken at Memorial and did not find those films to be
diagnostic of a dislocation of the index finger. Nor did he find
anything diagnostic of a dislocation in the films taken after
plaintiff's forearm surgery. Dr. Cohen also reviewed the films
taken by Dr. Nord in his office on February 10, 2004, and March
9, 2004, post-operation and found those did not show anything
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diagnostic of a dislocation either. The problem with all of the
X rays taken was they focused on the forearm fracture area and
the finger was shown at an angle, making it difficult to see
exactly what was going on with the finger.
Dr. Cohen did concede the X rays showed a "pathology"
in regard to plaintiff's right index finger. He also acknowl-
edged five separate complaints of either hand or finger pain by
plaintiff in the first few days of her initial hospitalization.
Dr. Cooley, the Bloomington radiologist, testified he
reviewed the December 13, 2003, X-ray film after plaintiff's
initial surgery with Dr. Nord and reported it showed an open
reduction of fractures of both the radius and ulna. He testified
at trial the film also depicted a medial dislocation of the
phalanx on the metacarpal joint of the right index finger. He
also reviewed the results of the CT scan taken on June 26, 2004,
and testified it showed the proximal phalanx of the same finger
was displaced posteriorly on the metacarpal. Dr. Cooley stated
this was the same dislocation fracture in both studies. Dr.
Cooley then admitted the X-ray report he authored in regard to
the December 13, 2003, X ray made no mention of the fracture
dislocation of plaintiff's right index finger because he did not
visualize the fracture dislocation at that time.
According to Dr. Cooley, it is easier for a radiologist
to find a fracture dislocation on an X ray once he is told of its
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existence. The first time he detected the fracture dislocation
of plaintiff's finger was after he was told there was a lawsuit
involving the finger. Dr. Cooley also stated the training a
radiologist receives in interpreting X rays is greater than that
of an orthopedic surgeon.
The jury returned a verdict in favor of plaintiff and
against defendants Franklin, Dr. Nord, and Central Illinois
Orthopedic Surgery in the total amount of $307,000. Plaintiff
was awarded $107,000 for the reasonable expense of necessary
medical care; $25,000 for disfigurement; $75,000 for pain and
suffering, including future pain and suffering; and $100,000 for
disability, including future disability. The jury found Franklin
to be 75% at fault and the medical defendants to be 25% at fault.
After receiving an extension of time to file, the
medical defendants filed a posttrial motion on May 19, 2009. All
of the issues raised on appeal were raised in that motion. On
June 26, 2009, the trial court denied the motion. This appeal
followed. Franklin did not appeal.
II. ANALYSIS
A. Jury Instructions
The medical defendants argue the trial court erred in
giving jury instructions (1) which failed to differentiate
between the injury caused solely by Franklin to plaintiff's
forearm and the injury caused to the index finger for which both
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Franklin and the medical defendants are liable, (2) injected
insurance into the case, and (3) confused the jury on the consid-
eration to be given expert witness testimony.
It is within the discretion of the trial court to
determine what jury instructions should be given, and a reviewing
court will not disturb the decision of the trial court unless it
abuses its discretion. Brady v. McNamara, 311 Ill. App. 3d 542,
546, 724 N.E.2d 949, 952 (2000). "[T]he trial court has the
discretion to determine if a particular jury instruction is
applicable, supported by evidence in the record, and an accurate
statement of the law." Luye v. Schopper, 348 Ill. App. 3d 767,
773, 809 N.E.2d 156, 161 (2004). The standard for deciding
whether a trial court abused its discretion and the propriety of
tendered instructions is "whether the jury was fairly, fully and
comprehensively informed on the relevant principles, considering
the instructions in their entirety." Saunders v. Schultz, 20
Ill. 2d 301, 314, 170 N.E.2d 163, 170 (1960); Matarese v. Buka,
386 Ill. App. 3d 176, 179, 897 N.E.2d 893, 896 (2008).
A trial court is required to use an Illinois Pattern
Jury Instruction when it is applicable to a civil case unless the
court determines it does not accurately state the law. 177 Ill.
2d R. 239(a); York v. Rush-Presbyterian-St. Luke's Medical
Center, 222 Ill. 2d 147, 204, 854 N.E.2d 635, 666 (2006). The
issue of whether a jury instruction is an accurate statement of
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the law is reviewed de novo. Studt v. Sherman Health Systems,
387 Ill. App. 3d 401, 403, 900 N.E.2d 1212, 1214 (2008).
1. Failure To Differentiate Between the Injuries
Plaintiff did not seek damages for her right forearm
fracture against the medical defendants, only against Franklin.
Damages were sought from all three for the injury to her right
index finger. Yet the verdict form given did not require the
jury to make a separate calculation for the damages attributed to
plaintiff's right forearm fracture and her dislocated right index
finger. The medical defendants contend this is error.
Plaintiff and the medical defendants each offered a
different verdict form. The medical defendants objected to the
use of plaintiff's proffered instruction and submitted one of
their own which, upon plaintiff's objection, was refused by the
trial court. Plaintiff's instruction was given.
Plaintiff's instruction No. 9 (Verdict Form A) was
Illinois Pattern Jury Instructions, Civil, No. B45.03.A (Supp.
2008) (hereinafter IPI Civil (Supp. 2008) No. B45.03.A). It
stated jurors were to find for plaintiff and against either
Franklin or the medical defendants, or both. (A copy is appended
at the end of this opinion.) Plaintiff's instruction No. 9
provided a blank for determining the total monetary amount of
damages suffered by plaintiff as a proximate result of the
occurrence. Then blanks were provided for the itemization of
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damages: medical expenses, pain and suffering, disability, and
disfigurement. Finally, the jury was to assume 100% represented
the total combined fault of all persons or entities whose fault
proximately caused plaintiff's injuries, including any defendant
found liable, and find the fault attributable to each. The jury
was also informed if any defendant was found not liable to
plaintiff, zero (0) should be entered as to the percentage for
that defendant.
The medical defendants argue using plaintiff's instruc-
tion No. 9 was error. Although Franklin, as defendant driver, is
responsible for all injuries arising as a result of the auto
accident, the medical defendants are not responsible for any
injury related solely to the auto accident and unrelated to the
medical care provided. This would exclude any damages for
treatment provided for plaintiff's right forearm fracture as
plaintiff neither alleged nor proved any negligence in regard to
that treatment.
Thus, the medical defendants offered their jury in-
struction No. 29A, which followed the same general format as IPI
Civil (Supp. 2008) No. B45.03.A offered by plaintiff but sepa-
rated the findings, requiring the jury to find liability and
damages as to plaintiff's right forearm injury just as to defen-
dant Franklin and as to her right index finger injury as to
defendant Franklin and the medical defendants. (A copy is
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appended at the end of this opinion.) The medical defendants'
instruction No. 29A included the itemization of damages found in
plaintiff's instruction No. 9 but provided two separate itemiza-
tions, one for plaintiff's right forearm and one for her right
index finger. This instruction was refused by the trial court
after plaintiff objected to it.
The medical defendants argued plaintiff suffered two
distinct injuries, one to her forearm and one to her index
finger. Plaintiff basically conceded this point at oral argu-
ment, and her complaint only sought damages from Dr. Nord for the
injury to her index finger. According to the medical defendants,
the jury could find the medical defendants negligent for failure
to diagnose plaintiff's dislocated finger, but they should not
have been allowed to assess liability for the fractures to the
right forearm caused by Franklin. No claim was made through
testimony or other evidence against the medical defendants for
treatment of the right forearm fracture; thus, no basis existed
for asking the jury to award damages against them for those
injuries. However, the verdict form offered by plaintiff did not
separate the claims. Both plaintiff and Franklin objected to the
medical defendants' proffered verdict form, saying it was confus-
ing and the percentages of liability offered in plaintiff's
proffered verdict form were sufficient. The trial court rejected
defendants' instruction without giving a specific reason.
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At oral argument, plaintiff's counsel argued a verdict
form giving the jury the opportunity to assess separate damages
for each injury would be too confusing and would require the jury
to sort through the medical bills and attribute them accordingly.
However, Franklin's counsel had no problem doing that. At trial,
he argued the medical expenses attributable to the injuries were
as follows: arm, $42,100; finger, $65,688; and overlapping arm
and finger, $5,903. Indeed, plaintiff's own exhibit F, appended
to her brief, also depicts a division of the medical bills
according to the injury to the forearm, the injury to the finger,
and the overlapping expenses. Consequently, we find it would not
be impossible or overly confusing for the jury to be required to
determine an amount of damages attributable solely to the forearm
fracture, for which the medical defendants would have no liabil-
ity whatsoever.
The medical defendants argue the use of plaintiff's
instruction No. 9 under the facts of this case is contrary to
Illinois law. We agree. It is a well-established principle in
Illinois law, where a plaintiff's injuries are separable, defen-
dants are not jointly and severally liable for the damages.
Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 802, 909 N.E.2d
353, 360 (2009). In Patton v. Carbondale Clinic, S.C., 161 Ill.
2d 357, 370, 641 N.E.2d 427, 435 (1994), the defendants were not
joint tortfeasors where the plaintiff suffered two distinct
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injuries: the first injury suffered in an automobile accident and
the second suffered from the doctor's malpractice in treating her
injuries. The injuries were found to be separate and distinct.
Carbondale Clinic, 161 Ill. 2d at 374, 641 N.E.2d at 431. In
Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 437-
38, 593 N.E.2d 522, 525 (1992), our supreme court held where a
plaintiff's injury can be distinguished from a physician's
aggravation of the injury, separate and distinct injuries occur
and defendants cannot be held jointly liable. However, "where
defendants, albeit sharing no common purpose or duty, and failing
to act in concert, nevertheless acted concurrently to produce an
indivisible injury to the plaintiff," the defendants are joint
tortfeasors. (Emphasis in original.) Burke, 148 Ill. 2d at 438,
593 N.E.2d at 526. In Burke, the plaintiff was injured by the
first tortfeasor, and that injury was exacerbated and/or plain-
tiff received an additional injury from a second tortfeasor.
Burke, 148 Ill. 2d at 439, 593 N.E.2d at 526. Either injury or
both injuries could have caused plaintiff's permanent condition.
Because the injury was indivisible, the defendants were joint
tortfeasors. Burke, 148 Ill. 2d at 439, 593 N.E.2d at 526.
Plaintiff states in her brief "[h]ere, plaintiff's
finger injury was a single, indivisible injury. The existence of
a single, individual [sic] injury establishes that multiple
defendants are jointly and severally liable." (Emphasis added.)
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The problem with plaintiff's second sentence is it does not end
with the following phrase "for plaintiff's finger injury." In
other words, because plaintiff suffered injuries which are
indivisible as to her index finger, both Franklin and the medical
defendants are liable for this injury. However, there was no
dispute only Franklin is responsible for the fractured forearm,
and the medical defendants could not be made to pay for damages
resulting from the forearm injury.
Plaintiff notes our supreme court, in Burke, adopted
the test of jointness in section 433A of the Restatement (Second)
of Torts. The court stated "[t]he test of jointness is indivisi-
bility of the injury." Burke, 148 Ill. 2d at 438, 593 N.E.2d at
526.
Restatement (Second) of Torts §433A (1965) provides as
follows:
"(1) Damages for harm are to be apportioned
among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for
determining the contribution of each cause to
a single harm."
The comments on subsection (1) above, related to "distinct
harms," read as follows:
"Distinct harms. There are other re-
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sults which, by their nature, are more capa-
ble of apportionment. If two defendants
independently shoot the plaintiff at the same
time, and one wounds him in the arm and the
other in the leg, the ultimate result may be
a badly damaged plaintiff in the hospital,
but it is still possible, as a logical, rea-
sonable, and practical matter, to regard the
two wounds as separate injuries, and as dis-
tinct wrongs. The mere coincidence in time
does not make the two wounds a single harm,
or the conduct of the two defendants one
tort. There may be difficulty in the appor-
tionment of some elements of damages, such as
the pain and suffering resulting from the two
wounds, or the medical expenses, but this
does not mean that one defendant must be
liable for the distinct harm inflicted by the
other. It is possible to make a rough esti-
mate which will fairly apportion such subsid-
iary elements of damages.
***
It should be noted that there are situa-
tions in which the earlier wrongdoer may be
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liable for the entire damage, while the later
one will not. Thus an original tortfeasor
may be liable not only for the harm which he
has himself inflicted, but also for the addi-
tional damages resulting from the negligent
treatment of the injury by a physician. ***
The physician, on the other hand, has played
no part in causing the original injury, and
will be liable only for the additional harm
caused by his own negligence in treatment."
Restatement (Second) of Torts §433A, Comments
b, c, at 435 (1965).
Section 433A of the Restatement (Second) of Torts has
been superseded by section 26 of the Restatement (Third) of
Torts: Apportionment of Liability (Restatement (Third) of Torts:
Apportionment of Liability §26 (2000) (hereinafter Restatement
(Third) of Torts)). While not yet formally adopted by our
supreme court, we look to this section for whatever enlightenment
it may provide.
Section 26 provides as follows:
"(a) When damages for an injury can be
divided by causation, the factfinder first
divides them into their indivisible component
parts and separately apportions liability for
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each indivisible component part ***.
(b) Damages can be divided by causation
when the evidence provides a reasonable basis
for the factfinder to determine:
(1) that any legally culpable
conduct of a party or other rele-
vant person to whom the factfinder
assigns a percentage of responsi-
bility was a legal cause of less
than the entire damages for which
the plaintiff seeks recovery and
(2) the amount of damages
separately caused by that conduct.
Otherwise, the damages are indivis-
ible and thus the injury is indi-
visible. Liability for an indivis-
ible injury is apportioned under
Topics 1 through 4." Restatement
(Third) of Torts §26 (2000).
The comments to the Restatement note most rules about
dividing damages by causation were developed prior to the concept
of comparative responsibility and most of these rules were
developed in the context of indivisible injuries. Few courts
have addressed the interaction between dividing damages by
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causation and apportioning liability by responsibility. Restate-
ment (Third) of Torts §26, Comment a, at 321 (2000). The comment
further explains: "Damages can be divided by causation when any
person *** to whom the factfinder assigns a percentage of respon-
sibility *** was a legal cause of less than the entire damages.
*** Divisible damages are first divided by causation into
indivisible parts, and then each indivisible part is apportioned
by responsibility." Restatement (Third) of Torts §26, Comment a,
at 320 (2000). "The percentages of comparative responsibility
for each component part add to 100 percent." (Emphasis added.)
Restatement (Third) of Torts §26, Comment c, at 321 (2000). The
comments further note the underlying policies behind the division
by causation first, and then the subsequent apportionment of
responsibility as follows:
"No party should be liable for harm it did
not cause, and an injury caused by two or
more persons should be apportioned according
to their respective shares of comparative
responsibility." Restatement (Third) of
Torts §26, Comment a, at 321 (2000).
Thus, the two-step process, dividing injuries by causation and
then apportioning responsibility to each component part, does not
make a defendant liable for damages he did not cause, and it
apportions liability among persons causing any component part
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according to that person's comparative share of responsibility.
Restatement (Third) of Torts §26, Comment d, at 323 (2000).
Comment (d) to section 26 discusses an alternative
method of asking the jury to find the plaintiff's aggregate
damages and then assigning a single set of percentages to all
persons who caused at least part of the damage, taking into
account evidence of causation and comparative responsibility.
Restatement (Third) of Torts §26, Comment d, at 323 (2000).
Comment j notes, however, a problem with a one-step process,
i.e., it may result in a party being held liable for more damages
than the party caused. Restatement (Third) of Torts §26, Comment
j, at 326-27 (2000). "A party's comparative responsibility is
distinct from the magnitude of the injury the party caused. When
the factfinder is permitted to combine these two concepts to
arrive at a single apportionment of liability, there is a risk
that a party will be required to pay for damages it did not
cause. Thus, the two-step process in [s]ubsection (a) is used
unless the court determines that it is administratively infeasi-
ble." Restatement (Third) of Torts §26, Comment j, at 326-27
(2000).
As recognized in comment h, when a defendant is jointly
and severally liable, he may be liable for more than his own
percentage share of the damages. Restatement (Third) of Torts
§26, Comment h, at 324 (2000). However, if a defendant did not
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cause a portion of the damages, the defendant should not be
liable therefor, regardless of joint and several liability.
Consider the following hypothetical. A woman is in a
car accident. Her legs are shattered. She also suffers a
dislocated finger. After many surgeries and medical treatment
that did not breach the standard of care, amputation of both legs
is necessary. The total cost of her medical care is $950,000.
The same orthopedic surgeon who treated her legs failed to
diagnose the problem with her finger. The problem with the
finger is later discovered and requires surgery to repair. The
cost of the medical care for the treatment of the dislocated
finger is $50,000. The woman files a two-count complaint. The
first count is directed only against the at-fault driver for the
injuries to her legs and finger. The second count is directed at
the orthopedic surgeon for only the injury to her finger.
A jury instruction like the one given to the jury in
the instant case is used over the defendant physician's objec-
tion. The jury finds the driver and the physician 97.5% and 2.5%
at fault, respectively, and awards plaintiff $2 million ($1
million medical and $1 million nonmedical) for her combined
injuries. The total damages are not broken down between the
injuries to her legs and the dislocated finger. In addition, the
verdict does not show the physician bore no fault for the inju-
ries to plaintiff's legs. The at-fault driver is judgment proof.
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Because the jury's verdict failed to divide the damages
between the injuries and attributed a percentage of fault to the
physician for all of plaintiff's injuries (not just the finger
injury), pursuant to section 2-1117 of the Code of Civil Proce-
dure (735 ILCS 5/2-1117 (West 2008)), the physician would be
responsible for paying the entire $1 million in medical expenses
even though the physician's negligence had nothing to do with the
$950,000 in medical expenses incurred for the treatment of the
leg injuries. Section 2-1117 states in part: "in actions on
account of bodily injury ***, based on negligence ***, all
defendants found liable are jointly and severally liable for
plaintiff's past and future medical and medically related ex-
penses." 735 ILCS 5/2-1117 (West 2008). Pursuant to the verdict
form, the physician was found responsible for a percentage of all
of the plaintiff's injuries, not just a percentage of the injury
he played a part in causing. It would clearly be unfair to the
physician to require him to pay medical expenses for an injury he
had absolutely nothing to do with causing.
While the legislature clearly intended a minimally
responsible tortfeasor to be jointly and severally liable for all
medical expenses for an injury he partially caused, we find the
legislature clearly did not intend for a defendant to be respon-
sible for medical expenses for an injury the plaintiff did not
even allege he caused in any part. As a result, the jury in-
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struction and verdict form given in this case are contrary to
Illinois law because they have the effect of making an individual
responsible for damages he had absolutely nothing to do with
causing.
Thus, under section 433A of Restatement (Second) of
Torts and under section 26 of the Restatement (Third) of Torts,
where it is feasible for the jury to assess damages by causation,
this should be done first and then apportionment of responsibil-
ity for each component part would be assigned. Even where the
magnitude of each indivisible component cannot be determined with
precision, this does not mean the damages are indivisible. All
that is required is a reasonable basis for division of the
damages. Restatement (Third) of Torts §26, Comment f, at 323
(2000). As noted above, section 433A makes this same point. In
this case, plaintiff's complaint provides the basis for dividing
the damages. Plaintiff did not allege the medical defendants are
in any way responsible for the injury to her forearm.
Consequently, the medical defendants' verdict form
contained in their jury instruction No. 29A accurately reflected
Illinois law on this issue. While we know the jury apportioned
relative responsibility 75/25 (Franklin/medical defendants), we
have no way of knowing how they divided the damages between the
forearm and the finger. The medical defendants have no responsi-
bility for the forearm fracture, but, under the verdict form
- 24 -
submitted by plaintiff, the medical defendants were assigned 25%
of the responsibility for all damages, including damages for the
forearm injuries.
Injuries to two separate body parts, only one of which
includes an alleged successive claim of medical malpractice, are
two separate and distinct injuries requiring separate treatment
in a jury instruction. The existence of a single, indivisible
injury is necessary to establish multiple defendants are jointly
and severally liable. See Board of Trustees of Community College
District No. 508, County of Cook v. Coopers & Lybrand, 208 Ill.
2d 259, 279-80, 803 N.E.2d 460, 472 (2003). Franklin and the
medical defendants are not jointly and severally liable for
plaintiff's injuries to her right forearm.
As the medical defendants are not liable for any
damages in relation to plaintiff's right forearm, a separate
itemization as to the damages resulting from that injury is
necessary in order to assess the amount of Franklin's sole
liability for them. Then, a separate itemization as to the
damages resulting from the injury to plaintiff's right index
finger is necessary, which, in addition, assesses the relative
percentage of responsibility attributable to Franklin and the
medical defendants. This is exactly what the medical defendants
tendered in their instruction No. 29A.
Plaintiff argues in addition to giving the jury IPI
- 25 -
Civil (Supp. 2008) No. B45.03.A, the trial court instructed it
with a modified version of Illinois Pattern Jury Instructions,
Civil, No. 20.01 (2006) (hereinafter IPI Civil (2006) No. 20.01
(modified)), which included the following paragraphs as given:
"The plaintiff claims that she was in-
jured and sustained damage, and that the
defendant, Christine Franklin, was negligent
in one or more of the following respects:
* * *
The plaintiff also claims that she suf-
fered injury to her right index finger and
sustained damage, and that defendant, Larry
Nord, was professionally negligent in one or
more of the following respects ***."
The jury was instructed that the medical defendants were alleged
to be professionally negligent for the injury to plaintiff's
finger, and no mention was made of the forearm injury with
respect to Dr. Nord. The jury was also instructed Franklin
should be held accountable for any and all injuries from the
accident. However, these instructions do not cure the harm
caused by the verdict form given to the jury. Without the
separate itemization on the verdict form tendered by the medical
defendants, there was no way provided for the jury to hold the
medical defendants accountable for only the injuries they may
- 26 -
have caused to plaintiff's index finger.
Where a pattern jury instruction accurately reflects
Illinois law, the trial court is required to use it. 177 Ill. 2d
R. 239(a). Here, the court was not required to use IPI Civil
(Supp. 2008) No. B45.03.A because it does not accurately reflect
the law under the circumstances of this case. Indeed, the
comments to the jury instruction state: "This computational
verdict form is to be used in cases involving a single plaintiff
and more than one entity which could or might have caused plain-
tiff's injury or damage ***." IPI Civil (Supp. 2008) No.
B45.03.A, Committee Comment, at 38-39. Here it was undisputed
the medical defendants did not cause any of the damage related to
the forearm injury. The comment to IPI Civil (Supp. 2008) No.
B45.03.A further states: "Because of the absence of case law on
various issues, the committee does not yet have sufficient
guidance from the courts to draw instructions which would ex-
pressly accommodate every situation." IPI Civil (Supp. 2008) No.
B45.03.A, Committee Comment, at 41. Because the jury was not
given the opportunity to divide the damages between the forearm
injury and index finger injury, the trial court abused its
discretion in giving plaintiff's instruction No. 9 and refusing
the medical defendants' instruction No. 29A. The medical defen-
dants are entitled to a new trial.
The dissent contends the attribution of fault to the
- 27 -
medical defendants in the amount of 25% comports with the
evidence. Even if this is a fair allocation of responsibility,
the dissent fails to account for the impact joint-and-several-
liability principles have on Dr. Nord. Our earlier hypothetical
demonstrates the inherently unfair nature of assigning a single
set of percentages to all persons who caused part of the damages
where the injuries are divisible, there are multiple defendants,
and one or more defendants are clearly not responsible for some
of the injuries.
It is absolutely clear the $307,000 award by the jury
included the damages to the forearm. Since the jury attributed
25% of the fault to the medical defendants (and not less than
25%), they are jointly and severally liable to the plaintiff for
all of the damages. 735 ILCS 5/2-1117 (West 2008). Thus, rather
than exposure for the $76,750 the dissent contends comports with
the damage to the index finger, the medical defendants share
joint and several responsibility for the entire judgment, which
includes damages awarded for the forearm injury.
Contrary to what the dissent states, the issue is not
that Dr. Nord may be responsible for more than his assessed
percentage of fault, but rather how he can be responsible in any
percentage or amount for an injury he did not cause. It is cold
comfort that Dr. Nord now can assume the burden of trying to
collect from Franklin that which he should never have been liable
- 28 -
for in the first place. Because plaintiff alleged only Franklin
was responsible for the forearm injury, it should be plaintiff's
burden to collect damages for that injury from Franklin.
However, plaintiff's counsel stated during oral argu-
ment plaintiff settled with Franklin for her insurance policy
limits, gave her a release, and was seeking the remainder of the
judgment from Dr. Nord. The record does not reflect the amount
of Franklin's policy limits. If her policy limits were only
$100,000, plaintiff could seek the remainder in damages from Dr.
Nord pursuant to joint and several liability. In this case, as a
result of the verdict form given to the jury, neither the par-
ties, the trial court, nor this court has any way of knowing
whether this verdict will result in Dr. Nord paying for damages
for an injury plaintiff did not allege he caused in any way.
Since the medical defendants ought not have any liability imposed
or pay any damages for the forearm injury, their tendered in-
struction should have been given to the jury.
Because we are granting a new trial to the medical
defendants, we offer some guidance on the remaining issues raised
by those defendants in the event they should arise in a new
trial.
2. Injection of Insurance Into the Case
The medical defendants argue the issue of insurance
coverage was erroneously injected into the trial via a jury
- 29 -
instruction when there was no mention of insurance throughout the
trial. They had filed a motion in limine prior to trial to
prohibit any reference to insurance. The motion was granted and
no party violated it.
Plaintiff offered her instruction No. 1, Illinois
Pattern Jury Instructions, Civil, No. 3.03 (Supp. 2008) (herein-
after IPI Civil (Supp. 2008) No. 3.03), which states:
"Whether a party is insured or not in-
sured has no bearing on any issue that you
must decide. You must refrain from any in-
ference, speculation, or discussion about
insurance.
If you find for the plaintiff, you shall
not speculate about or consider any possible
sources of benefits the plaintiff may have
received or might receive. After you have
returned your verdict, the court will make
whatever adjustments are necessary in this
regard."
The instruction was given over objections from both the medical
defendants and Franklin.
Plaintiff argued testimony in the trial indicated all
of plaintiff's medical expenses, except for less than $1,000, had
been paid. The trial court initially reserved ruling on the
- 30 -
instruction when first proffered by plaintiff. The medical
defendants argued insurance was not at issue and the instruction,
while published by the Illinois Supreme Court Committee on
Pattern Jury Instructions in Civil Cases (Committee), had yet to
be approved by the supreme court. The court later allowed the
instruction without any further argument from the parties and did
not give any reason for allowing the instruction.
IPI Civil (Supp. 2008) No. 3.03 was revised by the
Committee in October 2007. The revision replaced two prior
instructions, Illinois Pattern Jury Instructions, Civil, No. 3.03
(2006) (hereinafter IPI Civil (2006) No. 3.03) and Illinois
Pattern Jury Instructions, Civil, No. 30.22 (2006) (hereinafter
IPI Civil (2006) No. 30.22). The former IPI Civil (2006) No.
3.03 is the same as the first paragraph of the new IPI Civil
(Supp. 2008) No. 3.03 with the addition of the words "or not
insured" in the first line. The second paragraph is the same as
the former IPI Civil (2006) No. 30.22, which stated the old
collateral-source rule. The Notes on Use to the former IPI Civil
(2006) No. 3.03 stated the instruction should "only be given at
the request of the party whose liability insurance coverage has
been disclosed or if the jury inquir[es] about liability insur-
ance during deliberations."
The Notes on Use to IPI Civil (Supp. 2008) No. 3.03
state: "The Committee believes that this instruction should be
- 31 -
given in all cases where insurance could play a role in the
decision of the jury. With the wide prevalence of liability
insurance, medical insurance[,] or government benefits such as
Medicaid or Medicare, many jurors question the role of insurance
in contested accident, medical negligence[,] or other cases."
The medical defendants argue a jury instruction is
approved or rejected for use only after it has been judicially
questioned and considered (see Lange v. Freund, 367 Ill. App. 3d
641, 645, 855 N.E.2d 162, 167 (2006)) and the propriety of a
trial court's determination is not conclusively determined by the
recommendations and comments of the Committee. Lange, 367 Ill.
App. 3d at 645, 855 N.E.2d at 167. IPI Civil (Supp. 2008) No.
3.03 has not been judicially reviewed. However, the Lange case
is inapposite to the situation here as the trial court in Lange
injected its own instruction into the proceedings where the
Committee comments recommended against giving such an instruc-
tion. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167. Even
under such a circumstance, the reviewing court in Lange approved
the giving of the court's instruction because it was appropriate
in light of the closing argument made by plaintiff's counsel in
that case. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167.
Further, we note if a trial court never gives a particular jury
instruction because it has never been "judicially reviewed," as
defendants suggest the law to be, there will never be an opportu-
- 32 -
nity to "judicially review" that particular instruction. The
medical defendants' contention that an instruction promulgated by
the IPI committee is not effective until approved by the supreme
court is contrary to Supreme Court Rule 239(a). As noted above,
a trial court is required to use an IPI instruction unless the
court determines it does not accurately reflect the law. See 177
Ill. 2d R. 239(a).
Although the word "insurance" was not used during the
trial here, testimony indicating the vast majority of plaintiff's
sizable medical bills had been paid, while the evidence also
showed she and her husband are of modest means, would lead to the
inference insurance of some sort was used to pay those bills.
While no mention or inference was made of the existence of
insurance covering the medical defendants for their liability,
the medical defendants were not unduly prejudiced as the wording
of former IPI Civil (2006) No. 3.03 has been retained instructing
the jury it does not matter in its deliberations whether a party
was insured. No abuse of discretion in the giving of IPI Civil
(Supp. 2008) No. 3.03 has been shown by the medical defendants,
as the instruction accurately reflects Illinois law.
3. Conflicting Instructions in Regard to
Consideration of Expert Testimony
Plaintiff offered her instruction No. 3, Illinois
Pattern Jury Instructions, Civil, No. 3.08 (Supp. 2008) (herein-
after IPI Civil (Supp. 2008) No. 3.08), which states:
- 33 -
"You have heard a witness give opinions
about matters requiring special knowledge or
skill. You should judge [his] testimony in
the same way [that] you judge *** testimony
from any other witness. The fact that such
person has given an opinion does not mean
that you are required to accept it. Give the
testimony whatever weight you think it de-
serves, considering the reasons given for the
opinion, the witness's qualifications, and
all of the other evidence in the case."
The trial court gave this instruction over the objection of the
medical defendants. It is a new instruction, like IPI Civil
(Supp. 2008) No. 3.03.
IPI Civil (Supp. 2008) No. 3.08 was given in addition
to the medical defendants' instruction No. 25, Illinois Pattern
Jury Instructions, Civil, No. 105.02 (2005) (hereinafter IPI
Civil (2005) No. 105.02), to which there was no objection.
(While the parties refer to Illinois Pattern Jury Instructions,
Civil, No. 105.01 (2006) (hereinafter IPI Civil (2006) No.
105.01) in their briefs, it appears IPI Civil (2005) No. 105.02,
which was withdrawn in 2006, was actually given at trial without
objection by any party.) The medical defendants' instruction No.
25 states:
- 34 -
"A physician who holds himself out as a spe-
cialist and provides service in this spe-
cialty must possess and apply the knowledge
and use the skill and care ordinarily used by
a reasonably well-qualified orthopedic sur-
geon under circumstances similar to those
shown by the evidence. The failure to do so
is professional negligence. The only way in
which you may decide whether a defendant
possessed and applied the knowledge and used
the skill and care which the law required
from him is from expert testimony presented
in the trial. You must not attempt to deter-
mine this question from any personal knowl-
edge that you have."
This instruction in regard to professional negligence tells the
jurors, in order to determine the standard of care, they must
rely on the opinion testimony of qualified witnesses and evidence
of professional standards and the jurors must not attempt to
determine the question from any personal knowledge they may have.
The medical defendants argued, both before the trial
court and here, the two jury instructions taken together would
result in the jury ignoring the testimony of expert witnesses, as
IPI Civil (Supp. 2008) No. 3.08 allows them to do, instead of
- 35 -
using only the testimony of expert witnesses to determine the
professional standard of care appropriate in these circumstances.
Jurors are not permitted to determine on their own the standard
of care or whether the defendant has breached it. No case has
suggested it is proper for jurors to decide issues of medical
negligence based on their layperson's perspective, except in
circumstances of gross negligence. The medical defendants argue,
at a minimum, the giving of these two instructions together is
confusing to the jury. At worst, it has the potential to allow
jurors, rather than medical experts, to set the standard of care.
We disagree. IPI Civil (Supp. 2008) No. 3.08 applies
to the weight to be given expert testimony on any topic. IPI
Civil (2005) No. 105.02 (now incorporated into IPI Civil (2006)
No. 105.01) is limited to the determination of the "standard of
care" for health-care defendants. The two jury instructions do
not conflict. Taken together, the jury was instructed in IPI
Civil (2005) No. 105.02 it must rely on expert witness testimony
to determine the applicable standard of care for the medical
defendants, while IPI Civil (Supp. 2008) No. 3.08 told the jury
it did not need to accept all expert opinions. The Notes on Use
to IPI Civil (Supp. 2008) 3.08 state it is to be used in conjunc-
tion with IPI Civil (2006) No. 105.01 (dealing generally with
professional-negligence cases, replacing IPI Civil (2005) No.
105.02, which has been withdrawn). Thus, if the jury determined
- 36 -
there were not any believable expert opinions supporting a
standard-of-care determination, plaintiff would not have proved
her case and the jury would so find. The instructions are
neither incompatible nor contradictory. See also Sherman Health
Systems, 387 Ill. App. 3d at 407-08, 900 N.E.2d at 1218 (finding
IPI Civil (2006) No. 105.01 accurately states the law). But cf.
Buka, 386 Ill. App. 3d at 185-86, 897 N.E.2d at 902 (finding IPI
Civil (2006) No. 105.01 does not accurately state the law).
B. Evidence Qualified Radiologists Did Not Diagnose
Plaintiff's Dislocated Finger
Plaintiff was first seen at Memorial where X rays were
taken. Dr. Haag, a clinical radiologist, read those X rays. In
his report, he did not identify any dislocation of plaintiff's
finger. Dr. Haag was a defendant in this case but was dismissed
right before the start of the trial.
Plaintiff was again x-rayed following surgery in
Bloomington. Dr. Cooley, a board-certified radiologist, reviewed
the X rays and did not detect any dislocation of her finger.
Both Dr. Haag's and Dr. Cooley's reports were part of plaintiff's
medical records admitted into evidence by agreement. The medical
defendants contend if either Dr. Haag or Dr. Cooley had identi-
fied the dislocation, it would have been treated by them in a
timely manner. A significant part of the medical defendants'
defense was the unusual presentation of plaintiff's dislocated
finger and, thus, the difficulty in detecting the dislocated
- 37 -
finger in the X rays. They argue radiologists are even more
qualified to read X rays than orthopedic surgeons and, therefore,
the fact neither Dr. Haag nor Dr. Cooley detected the finger
dislocation in the X rays was highly relevant.
The trial court refused to allow reference to Dr.
Haag's X-ray report in the opening statement of the medical
defendants; refused to allow them to cross-examine Dr. Rotman
using Dr. Haag's and Dr. Cooley's X-ray reports; and excluded
some of Dr. Cooley's testimony. The medical defendants argue,
taken together, these rulings deprived them of a fair trial.
They contend the X-ray reports are part of plaintiff's medical
history and cannot be properly excluded.
They argue further, Dr. Cooley testified at trial that
the dislocation of plaintiff's finger was visible on the same X-
rays he looked at in the course of plaintiff's treatment but
failed to visualize initially. Plaintiff also presented testi-
mony from Dr. Rotman the dislocation was visible on the X-rays
taken in early 2004 at Dr. Nord's office. The medical defendants
argue the court kept from the jury facts contained in the medical
records that showed Drs. Haag and Cooley did not identify the
dislocation on those same X rays.
Thus, the medical defendants argue the trial court's
rulings eliminating the mention of Dr. Haag at trial and severely
limiting Dr. Cooley's testimony denied them the opportunity to
- 38 -
fairly present their theory of the case and were prejudicial
error.
"'Evidentiary rulings are within the sound discretion
of the trial court and will not be reversed absent an abuse of
discretion.'" People v. Johnson, 385 Ill. App. 3d 585, 596, 898
N.E.2d 658, 669 (2008), quoting People v. Purcell, 364 Ill. App.
3d 283, 293, 846 N.E.2d 203, 211 (2006). Abuse of discretion is
found only where the trial court's rulings are arbitrary, fanci-
ful or unreasonable, or where no reasonable person would take the
view adopted by the court. Purcell, 364 Ill. App. 3d at 293, 846
N.E.2d at 211.
We note, first, the medical defendants are incorrect in
stating no evidence was before the jury in regard to Dr. Cooley
missing the diagnosis of the dislocated finger. Dr. Cooley
admitted in his testimony the X-ray report he authored in regard
to the December 13, 2003, X ray made no mention of the fracture
dislocation of plaintiff's right index finger because he did not
visualize the fracture dislocation at that time. He also stated
the training a radiologist receives in interpreting X rays is
greater than that of an orthopedic surgeon, which supports the
medical defendants' theory of the case. In fact, the trial court
cited this when the medical defendants wanted to use Dr. Haag's
findings, concluding it would be duplicative and they could argue
their defense theory based on Dr. Cooley's testimony.
- 39 -
The problem with the defense theory, however, which
makes the missing reports of finger dislocation by the radiolo-
gists of little relevancy, is the fact the radiologists were not
asked to look for a dislocation but to confirm the right forearm
fracture. Dr. Cooley testified it was much easier for radiolo-
gists to spot things on film when they were looking for them.
Additionally, neither radiologist saw plaintiff in person, and
Dr. Nord, rather than rely on a radiologist's report, read the X
rays himself. In addition, what defendants really sought to do
was argue, "If the radiologists didn't see it, then the orthope-
dist was not negligent for missing it." In essence, defendants
wanted to argue defendants met the standard of care because two
radiologists did not report the dislocation. However, no profes-
sional opinion testimony was offered to support this conclusion.
As noted above, the jury was required to rely on expert testimony
to determine the standard of care.
The medical defendants were allowed to argue the
presentation of plaintiff's dislocation was unusual and, thus,
difficult to see on the X rays, and, in fact, it was missed by a
radiologist before Dr. Nord saw her. However, Dr. Nord treated
plaintiff extensively over a period of several months. Evidence
showed at least 13 office visits between plaintiff and Dr. Nord.
The radiologists may have missed the dislocation on the X rays,
but Dr. Nord was presented with a patient who had a badly swollen
- 40 -
hand and testified she reported pain in her hand and fingers with
every office visit. Dr. Nord was also able to palpate plain-
tiff's hand on each visit. Although Dr. Nord denies the reports
of pain and there is no record of them in his office notes, Dr.
Nord was presented with many more opportunities and reasons to
review the X-ray film, looking for injuries besides the forearm
fracture, than were the radiologists. Thus, comparing the
radiologists' reports which missed the finger dislocation with
the opportunities Dr. Nord had to diagnose the dislocation is
similar to a comparison of apples and oranges, making the radiol-
ogy reports, for the most part, irrelevant. (This would be
similar to Franklin offering testimony that a professional race-
car driver also failed to yield at the same intersection where
this collision occurred. That someone with arguably greater
skill was also negligent is not a legitimate defense.) Further,
Dr. Nord did not rely on the radiologist's report prior to
performing the initial surgery. He read the X rays taken in
Springfield himself, as he does with all of his orthopedic
patients.
Dr. Cooley's testimony was presented at trial via an
evidence deposition. The excluded portion of his testimony
pertained to the standard of care for a well-qualified radiolo-
gist and was not relevant to this case.
The medical defendants were not kept from arguing their
- 41 -
defense to the jury, and only irrelevant evidence was kept from
the jury by the trial court. We find no abuse of discretion.
C. Errors in Opening Statement and Closing Arguments
1. Mention of Plaintiff's Miscarriage in Opening Statement
Although plaintiff incurred a miscarriage after the
automobile accident, no recovery was sought for it. Nonetheless,
during opening statement, plaintiff's counsel told the jury
plaintiff had a miscarriage after the accident. The medical
defendants contend this was an attempt to create sympathy and
prejudice in the minds of the jurors.
Objection was made by Franklin's counsel but not
counsel for the medical defendants. The objection was sustained
and the medical defendants made a motion in limine to bar further
mention of the miscarriage. The motion was granted and the
parties abided by the ruling.
Because no objection was made by the medical defendants
nor did they join in or adopt Franklin's objection, the issue
could be considered forfeited. See Brown v. Timpte Inc., 137
Ill. App. 3d 1053, 1062-63, 485 N.E.2d 488, 494 (1985). However,
as this case is being reversed and remanded, we will consider
this issue.
An opening statement is intended to inform jurors of
the nature of the action and to provide an outline of what
counsel expects admissible evidence at trial to show so the
- 42 -
jurors can better understand testimony they will hear during
trial, but no statement may be made in opening which counsel does
not intend to prove. Gillson v. Gulf, Mobile & Ohio R.R. Co., 42
Ill. 2d 193, 196-97, 246 N.E.2d 269, 272 (1969). Statements made
by counsel in opening statement are improper if they are not in
good faith and are prejudicial. Surestaff, Inc. v. Open Kitch-
ens, Inc., 384 Ill. App. 3d 172, 174, 892 N.E.2d 1137, 1140
(2008).
Plaintiff argues the comments of counsel were factually
accurate as the Memorial records reflect plaintiff was pregnant.
Further, Dr. Nord was expected to introduce the testimony of Dr.
Pickett by means of video evidence deposition. His testimony at
the deposition included this question and answer:
"Q. Okay. What was the next thing you
did?
A. Well, seeing the patient's
complaint, apparently[--]it's patient had a
history that she is five weeks pregnant and I
ordered a pregnancy test and a CBC and proba-
bly simultaneously with that obtained consul-
tation from orthopedic service."
After the medical defendants' motion in limine, this testimony
was stricken from the deposition. But plaintiff argues she had
no way of knowing this at the time her counsel made his opening
- 43 -
statement.
As plaintiff never sought recovery of damages as a
result of her miscarriage, it is wholly irrelevant and prejudiced
the medical defendants. Plaintiff's counsel had no reason to
tell the jury about it in opening statement. It was simply a
subtle attempt to appeal to the emotions of the jury, which
constitutes error. See First National Bank of La Grange v. Glen
Oaks Hospital & Medical Center, 357 Ill. App. 3d 828, 833, 829
N.E.2d 378, 385 (2005).
Even without the existence of a motion in limine,
comments concerning plaintiff's miscarriage have no place in
statements by counsel.
2. Plaintiff's Counsel Stated During Closing
Argument Plaintiff Did Not Have the Burden
of Separating Damages for Arm and Finger
During closing argument, plaintiff's counsel quoted the
jury instruction defining "proximate cause" and then went into
the complained-of argument:
"When I use the expression, quote, 'proximate
cause,' unquote, I mean any cause which in
the natural and ordinary course of events
produced the [p]laintiff's injury. It need
not be the only cause, nor the last, nor the
nearest cause. It is sufficient if it con-
curs with some other cause acting at the same
- 44 -
time which in combination with it causes the
injury.
In other words, [plaintiff] does not
have the obligation to try to parse her in-
jury. She does not have the obligation, the
law does not place a burden on her, to demon-
strate which of these injuries is due exclu-
sively to a motor vehicle accident, how much
of it is due to Dr. Nord's negligence. The
[p]laintiff does not have that burden, be-
cause proximate cause is defined, and both of
these [d]efendants contributed and proxi-
mately caused the injuries that we now have."
The medical defendants objected to this argument as a
misstatement of the law, implying plaintiff did not have the
burden to show proximate cause but defendants had that burden.
The objection was sustained.
Plaintiff's counsel then continued his argument:
"Yeah, I didn't say we don't have the burden
to show what proximate cause is, what I said
was [p]laintiff doesn't have the burden to
separate the injuries out and to separate the
medical bills out. That's what I am saying."
The medical defendants objected again, arguing plaintiff did have
- 45 -
the burden to separate her medical bills for each injury. The
objection was sustained.
The medical defendants argue the law is clear, even if
plaintiff demonstrated they had breached the standard of care
with respect to a late diagnosis of the dislocated finger, they
could not be held responsible for injuries resulting from plain-
tiff's arm fracture.
The purpose of closing argument is to draw reasonable
inferences from the evidence and assist the jury in arriving at a
verdict based on the law and the evidence. Copeland v. Stebco
Products Corp., 316 Ill. App. 3d 932, 948, 738 N.E.2d 199, 213
(2000). The medical defendants argue an appeals court has the
discretion to grant a new trial based on improper closing argu-
ment. See Regan v. Vizza, 65 Ill. App. 3d 50, 54, 382 N.E.2d
409, 412 (1978). However, where the trial court sustains an
objection to improper argument by counsel, any error is consid-
ered cured and, if the trial was fair as a whole and the evidence
sufficient to support the verdict, the judgment will not be
reversed on appeal. See Lecroy v. Miller, 272 Ill. App. 3d 925,
933-34, 651 N.E.2d 617, 622 (1995).
First, we note plaintiff did not "repeatedly" argue to
the jury she did not have the burden of separating her damages as
argued by the medical defendants. However, as noted in our
discussion concerning the erroneous verdict form used in this
- 46 -
trial, plaintiff did have the burden to separate her damages
between her forearm and her index finger. Thus, her counsel's
argument was objectionable and the trial court was correct to
sustain the medical defendants' objection to it (even though it
erroneously refused the medical defendants' proffered jury-
instruction verdict form).
3. Franklin's Counsel Questioned Dr. Nord
Operating on Plaintiff's Hand
Counsel for Franklin argued in closing argument:
"Another problem I have is you know, this
thing goes on for six months, and the physi-
cal therapist does diagnose it by palpation
the first time she sees the patient. What
does Dr. Nord do? He operates on the finger.
He is not a hand surgeon. Why does he oper-
ate on that hand and then later send her to
the expert, Dr. Lee?"
Counsel for the medical defendants moved to strike this argument
as not relevant. Franklin's counsel contended this was not
argument but only a statement. The trial court stated it was an
argument but overruled the objection.
Franklin's counsel then stated:
"As I said, there's a lot of issues and a lot
of speculation that we don't need to get
into, I'm just pointing out the facts."
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The medical defendants contend Franklin's counsel knew
this argument was objectionable. Plaintiff's counsel attempted
to question Dr. Nord during the trial about why he performed the
first hand surgery instead of sending plaintiff to a specialist
immediately. The trial court sustained the medical defendants'
objection. Plaintiff's counsel argued at that time the question
went to the credibility of Dr. Nord because medical-malpractice
defendants often tried to correct the problem without anyone else
ever knowing about it. The medical defendants argued no expert
testified anything was wrong with Dr. Nord's surgery on plain-
tiff's hand nor were any allegations made to that effect. In
fact, Dr. Rotman, plaintiff's expert, stated he had no criticisms
of Dr. Nord's surgeries. He did not state the opinion Dr. Nord
should have referred plaintiff to Dr. Lee earlier.
Although Franklin's cross-claim did contain an allega-
tion Dr. Nord not only failed to properly diagnose plaintiff's
hand injury, but also failed to properly treat the injury, no
evidence was presented at trial as to the appropriate standard of
care for hand surgery and whether Dr. Nord, an orthopedic sur-
geon, breached that standard of care. Counsel's follow-up
statement to the jury, that there was a lot to speculate about
but he was just stating the facts, did not negate the suggestion
Dr. Nord may not have properly treated plaintiff's hand injury
once he did diagnose it. As no evidence supported counsel's
- 48 -
"speculation," it was error to include it in his closing argument
and the medical defendants' objection to it should have been
sustained.
III. CONCLUSION
For the above reasons, we reverse the trial court's
judgment and remand the cause for a new trial.
Reversed and remanded.
STEIGMANN, J., concurs.
MYERSCOUGH, P.J., dissents.
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Plaintiff's No. 9:
VERDICT FORM A
We, the jury, find for Dawn Auten and against the
following defendants:
Christine Franklin Yes _______ No _______
Larry Nord, M.D. and
Central IL Orthopaedic Surgery Yes _______ No _______
We further find the following:
First: That the total amount of damages suffered by Dawn
Auten as a proximate result of the occurrence in question is
$___________, itemized as follows:
The reasonable expense of necessary medical
care, treatment, and services received $__________
The disfigurement resulting from the injury $__________
The pain and suffering experienced and
reasonably certain to be experienced in the
future as a result of the injuries $__________
The disability experienced and reasonably
certain to be experienced in the future $__________
PLAINTIFF'S TOTAL DAMAGES: $__________
Second: Assuming that 100% represents the total combined
fault of all persons or entities whose fault proximately caused
Dawn Auten f/k/a/ Dawn Barnett's injury, including any defendant
whom you have found liable, we find the percentage of fault
attributable to each as follows:
(a) Christine Franklin _____%
(b) Larry Nord, M.D./Central IL Orthopaedic Surgery _____%
TOTAL 100%
If you find either defendant not liable to the plaintiff,
then you should enter zero (0) as to that defendant.
Third: We award Dawn Auten recoverable damages in the
- 50 -
amount of $___________.
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Medical defendants' No. 29A:
VERDICT FORM A
Does the jury find for Dawn Auten and against Christine
Franklin for injuries which the plaintiff suffered to her right
forearm?
Christine Franklin Yes _____ No _____
We find the total amount of damages suffered by Dawn Auten
as a proximate result of the injuries to her right forearm is
$_____________, itemized as follows:
The disfigurement resulting from the
injury: $__________
The disability experienced and rea-
sonably certain to be experienced in
the future: $__________
The pain and suffering experienced
as a result of the injuries: $__________
The reasonable expense of necessary
medical care, treatment and services $________-
received: __
PLAINTIFF'S TOTAL DAMAGES FOR INJU-
RIES TO HER RIGHT FOREARM: $__________
Does the jury find for Dawn Auten and against the following
defendant(s) for injuries which the plaintiff suffered to her
right index finger?
Christine Franklin Yes _____ No _____
Larry Nord, M.D./Central IL
Orthopedic Surgery, S.C. Yes _____ No _____
We find the total amount of damages by Dawn Auten as a
proximate result of the injuries to her right index finger is
$__________, itemized as follows:
The disfigurement resulting from the The reasonable
injury: expense of neces-
sary medical care,
The disability experienced and rea- treatment and ser-
sonably certain to be experienced in vices received:
the future:
The pain and suffering experienced $__________
as a result of the injuries:
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$__________
$__________
$__________
$__________
PLAINTIFF'S TOTAL DAMAGES FOR INJU-
RIES TO HER RIGHT INDEX FINGER:
Assuming that 100% represents the total combined negligence
of all persons whose negligence proximately caused Dawn Auten's
right index finger injury, we find that the percentage of negli-
gence attributable to each as follows:
Christine Franklin _____%
Larry Nord, M.D./Central IL Orthopedic
Surgery, S.C. _____%
TOTAL 100%
(Instructions to Jury: If you find any defendant not liable to
the plaintiff for her finger injury, then you should enter a zero
percent (0%) as to that person or persons.)
- 53 -
PRESIDING JUSTICE MYERSCOUGH, dissenting:
I respectfully dissent. I disagree that reversible
error occurred in closing arguments. Further, I believe Drs.
Cooley's and Haag's testimony should have been allowed in full
but do not believe the court's ruling constituted reversible
error. More important, the trial court did not abuse its discre-
tion by giving IPI Civil (Supp. 2008) No. B45.03.A, the jury was
not misled by this instruction, and the medical defendants were
not prejudiced by this instruction. I would affirm.
The given instruction accurately stated the law. Buka,
386 Ill. App. 3d at 179, 897 N.E.2d at 896 (a trial court must
use the IPI instruction unless it does not accurately state the
law). The instructions clearly directed the jury to determine
the total amount of damages suffered by plaintiff and to appor-
tion each defendant's degree of fault:
"If you decide for the plaintiff on the
question of liability, you must then fix the
amount of money which will reasonably and
fairly compensate her ***."
"[Y]ou must apportion damages by determin-
ing the relative degree of fault, if any, of
each person *** named or described on the
verdict form."
The instructions clearly established that the rights of defen-
- 54 -
dants, Franklin and Nord, are separate and distinct from one
another:
"The rights of the defendants, Christine
Franklin[] and Larry Nord, M.D., are separate
and distinct from one another. Each defen-
dant is entitled to a fair consideration of
his or her own defense and you will decide
each defendant's case separately as if it
were a separate lawsuit. Each defendant's
case must be governed by the instructions
applicable to that case."
Though proposed instruction No. 29A introduced by defendant Nord
more fully states the law, that is not the test here.
Even if we accept the majority's proposition that the
IPI instruction was faulty and did not accurately state the law,
that instruction is still appropriate as it did not mislead the
jury or result in prejudice to the medical defendants, a prereq-
uisite for reversal. See People v. Rodriguez, 387 Ill. App. 3d
812, 821, 901 N.E.2d 927, 936 (2008) (the reviewing court will
not reverse, even if the instruction was faulty, unless the
instruction "clearly misled the jury and resulted in prejudice to
the appellant"). Indeed, verdict form A clearly provided the
jury opportunity to find each defendant responsible for none,
part, or all of plaintiff's injuries:
- 55 -
"We, the jury, find for Dawn Auten and
against the following defendants: Christine
Franklin[:] Yes ___ No ___[;] Larry Nord,
M.D. and Central IL Orthopaedic Surgery[:]
Yes ___ No ___[.] *** Assuming that 100%
represents the total combined fault of all
persons or entities whose fault proximately
caused Dawn Auten f/k/a Dawn Barnett's in-
jury, including any defendant whom you have
found liable, we find the percentage of fault
attributable to each as follows: (a)
Christine Franklin ___% (b) Larry Nord,
M.D./Central IL Orthopaedic Surgery ___%[.]"
Verdict Form B allowed a determination on the counterclaim filed
by defendant Nord against defendant Franklin:
"We, the jury, find for defendant, Larry
Nord, M.D.[,] and Central Illinois Orthopedic
Surgery, S.C.[,] and against the plaintiff
and [c]ounter[-p]laintiff, Christine Frank-
lin."
Though no separate verdict form was provided with
regard to the counterclaim filed by Franklin against Nord, the
jury instructions nevertheless provided more than adequate direc-
tion to make the jury aware of Franklin's counterclaim, and the
- 56 -
simplified verdict form that was given allowed sufficient oppor-
tunity for the jury to make a determination as to all claims and
counterclaims. Additionally, the IPI comments reaffirm that IPI
Civil (2006) B45.03.A should be given in this case:
"This verdict form is identical to IPI.
B45.03.A with the exception of the addition
of paragraph 'Second' providing for findings
for or against third-party defendants. For
cases involving contribution counterclaims
among defendants, tried concurrently with the
plaintiff's claim, use B45.03A. For contri-
bution claims which involve third-party com-
plaints use this instruction." (Emphasis
added.) Illinois Pattern Jury Instructions,
Civil, No. 600.14, Notes on Use, at 627-28
(2006).
I recognize plaintiff's counsel argued, during closing
argument, that plaintiff did not have the burden of demonstrating
which of her injuries were due exclusively to the motor-vehicle
accident and which were due to the medical defendants. However,
defense counsel objected to this line of argument, and the objec-
tion was sustained. Nevertheless, plaintiff ultimately argued
correctly, and the jury was properly instructed to make a deter-
mination about the doctor's failure to diagnose the finger, not
- 57 -
the forearm:
"The plaintiff claims that she was injured
and sustained damage, and that the defendant,
Christine Franklin, was negligent in one or
more of the following respects:
(a) *** [F]ailing to yield ***;
(b) Failing to keep a proper lookout
for other traffic;
(c) Failing to keep the vehicle she was
operating under proper control.
The plaintiff further claims that one or
more of the foregoing was a proximate cause
of [her] injuries.
The defendant, Christine Franklin, denies
that she was negligent.
* * *
The plaintiff also claims that she suf-
fered injury to her right index finger and
sustained damage, and that defendant, Larry
Nord, was professionally negligent in one or
more of the following respects:
(a) Failing to perform an adequate and
thorough examination of plaintiff;
(b) Failing to order the appropriate
- 58 -
[X]-rays;
(c) Failing to diagnose the dislocation
of plaintiff's index finger; and
(d) Failing to properly treat plain-
tiff's dislocated index finger.
The plaintiff further claims that one or
more of the foregoing was a proximate cause
of her injuries.
Defendant, Larry Nord, denies that he did
any of the things claimed by the plaintiff,
denies that he was negligent, and denies that
any claimed action or omission on his part
was a proximate cause of plaintiff's inju-
ries.
* * *
Defendant, Christine Franklin, counter-
claims that she is entitled to contribution
from co[d]efendant, Larry Nord, for one or
more of the following acts:
(a) Failing to perform an adequate and
thorough examination of plaintiff;
(b) Failing to order the appropriate
[X]-rays;
(c) Failing to diagnose the dislocation
- 59 -
of plaintiff's index finger; and
(d) Failing to properly treat plain-
tiff's dislocated index finger.
Defendant, Larry Nord, denies that he did
any of the things claimed by Christine Frank-
lin, denies that he was negligent, denies
that he contributed to plaintiff's injuries,
and denies that any claimed act or omission
on his part was a proximate cause of the
plaintiff's claimed injuries.
Defendant, Larry Nord, counterclaims that
he is entitled to contribution from defen-
dant, Christine Franklin, for one or more of
the following negligent acts and/or omis-
sions:
(a) Failing to operate the automobile
in a safe and cautious manner;
(b) Failing to keep a safe and careful
lookout for other traffic;
(c) Failing to stop the automobile or
to apply the brakes on the automo-
bile in time to avoid colliding with
another automobile;
(d) *** [F]ailing to yield ***.
- 60 -
Christine Franklin denies that she was
negligent."
In these instructions, the trial court specifically
instructed the jury that plaintiff claimed she suffered injury to
her right index finger due to the medical defendants' negligence,
and the reviewing court must assume the jury followed the jury
instructions. See, e.g., People v. Platter, 89 Ill. App. 3d 803,
820, 412 N.E.2d 181, 194 (1980) ("The jury was properly in-
structed on the crime of involuntary manslaughter, and we will
assume that the jury followed the instructions that were given").
The jury was also correctly instructed that defendant
Franklin was responsible for damages resulting from Nord's ac-
tions.
"If a defendant negligently causes injury
to the plaintiff, then the defendant is lia-
ble not only for the plaintiff's damages re-
sulting from that injury, but is also liable
for any damages sustained by the plaintiff
arising from the efforts of health[-]care
providers to treat the injury caused by the
defendant[,] even if that health[-]care pro-
vider was negligent."
See Illinois Pattern Jury Instructions, Civil, No. 30.23 (2006).
Further, when apportioning the degree of fault, the
- 61 -
jury clearly considered that the medical defendants were only
responsible for the injury to plaintiff's right index finger
caused by their negligence. In fact, the evidence supports the
jury's verdict that the medical defendants were responsible for
25% of plaintiff's damages. According to plaintiff's exhibit F,
the medical bills related to treatment for (1) the arm injury
alone totaled $24,252.42, (2) the finger injury alone totaled
$47,035.14, and (3) the arm and finger injury together totaled
$36,500, for a grand total of $107,788.54 in medical bills. (The
jury awarded $107,000 for the reasonable expense of necessary
medical care.) Moreover, the evidence indicated that the resid-
ual damage to the right index finger was greater than the injury
to her arm. Additionally, plaintiff had significant pain and
dysfunction associated with the injury to her right index finger,
while she had little discomfort or dysfunction with her arm.
Without even taking into account the medical bills for
the arm and finger injuries, the medical expenses plaintiff
incurred solely for the injury to the right index finger
($47,035.12) are approximately twice as high as the medical
expenses for the arm injury alone ($24,252.42). (Combined medi-
cal expenses for the arm and finger injuries totaled $36,500.98.)
Yet, the jury assessed against the medical defendants 25% of
plaintiff's total damages (25% of $307,000), which totals $76,75-
0. That amount comports with the evidence of injury to the index
- 62 -
finger for which the medical defendants were responsible.
The jury's verdict clearly does not suggest the jury
was misled by the evidence, closing argument, or IPI Civil (Supp.
2008) No. B45.03.A. Indeed, Illinois Supreme Court Rule 239(a)
states the IPI Civil are sufficient and not misleading: "Whenever
Illinois Pattern Jury Instructions (IPI) contains an instruction
applicable in a civil case, giving due consideration to the facts
and the prevailing law *** the IPI instruction shall be used
***." 177 Ill. 2d R. 239(a). As "[a] reviewing court ordinarily
will not reverse a trial court for giving faulty instructions
unless [the instructions] clearly misled the jury and resulted in
prejudice to the appellant," the trial court's ruling should be
affirmed. Schultz v. Northeast Illinois Regional Commuter R.R.
Corp., 201 Ill. 2d 260, 274, 775 N.E.2d 964, 973 (2002).
The majority raises the unspoken spectre in this case--
the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 through
100/5 (West 2008))--and the fact defendant Nord may be responsi-
ble for more than his assessed percentage of fault due to defen-
dant Franklin's unknown settlement for policy limits referenced
on oral argument. However, that matter is not before this court
and does not justify reversing an appropriate jury award. The
jury made the appropriate calculations and allocations on this
record. This was not "rocket science"--the jury considered the
evidence and correctly apportioned liability between the parties.
- 63 -
We should not now second-guess the jury's abilities with
hypotheticals and evidence not in the record.
The majority argues defendant Nord ought not have
liability for the forearm. We do not know that he does. That is
a matter between the joint tortfeasors and is the reason for the
Contribution Act. 740 ILCS 100/2(a), (b) (West 2008). Defendant
Nord has a right to an offset for the amount of defendant Frank-
lin's settlement. Franklin must obtain from the trial court
approval of the settlement as being in good faith before she can
be released and dismissed. That is defendant Nord's protection
here, as set forth by the legislature in the statute. This is
not a wrong that needs to be addressed by this court based on the
record and these instructions.
It is also of no matter that the settlement was reached
after the jury verdict. See Ziarko v. Soo Line R.R. Co., 161
Ill. 2d 267, 286, 641 N.E.2d 402, 411 (1994) (holding that,
because "jury verdicts may be modified, reduced, or vacated on
post[]trial motion or on appeal," the court "do[es] not believe
*** the parties should be obligated to accept the verdict amount
as the final determination of the defendants' common liability to
the plaintiff to be reflected in a post-judgment settlement
agreement"). Nor does plaintiff's settlement with defendant
Franklin hinder plaintiff's right to enforce the judgment against
defendant Nord. See Henry v. St. John's Hospital, 138 Ill. 2d
- 64 -
533, 541, 563 N.E.2d 410, 414 (1990) (holding "that an injured
party does not waive the right to enforce a judgment against a
jointly and severally liable tortfeasor by settling with another
joint tortfeasor").
Concededly, the proposed instruction is a good one, and
it would not have been error for the trial court to have given
that instruction. However, the instruction given was also prope-
r, and the court did not abuse its discretion by giving the IPI
instruction. For these reasons, I would affirm.
- 65 -