Perez v. St. Alexius Medical Center , 2020 IL App (1st) 181887 ( 2020 )

2020 IL App (1st) 181887FIRST DISTRICT
SIXTH DIVISION
August 28, 2020
No. 1-18-1887
JESSE PEREZ, as Independent Executor of the Estate of ) Appeal from the
Marilyn Medina Perez, Deceased, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. )
)
ST. ALEXIUS MEDICAL CENTER, an Illinois Corporation; )
JEFFREY E. CHUNG, M.D.; MIDSUBURBAN )
RADIOLOGICAL CONSULTATNTS OF WOODSTOCK, LTD; ) No. 14 L 10905
CHRISTOPHER MICHAEL, M.D.; BRAD L. EPSTEIN, M.D.; )
SUBURBAN WOMEN’S HEALTH SPECIALIST, LTD.; )
DONALD R. TAYLOR, D.O.; SUBURBAN MATERNAL )
FETAL MEDICINE, LLC; VISHVANATH C. KARANDE, )
M.D.; and KARANDE AND ASSOCIATES, S.C., )
)
Defendants )
) Honorable
(St. Alexius Medical Center and Jeffrey E. Chung, M.D., ) Edward S. Harmening
Defendants-Appellees). ) Judge, Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Mikva concurred in the judgment and opinion.
Justice Connors dissented, with opinion.
OPINION
¶1 Plaintiff, Jesse Perez (Jesse) as independent executor of the Estate of Marilyn Medina
Perez, deceased, appeals a judgment following a jury trial for defendants St. Alexius Medical
Center (St. Alexius) and Jeffrey Chung, M.D. Plaintiff also appeals trial court orders striking his
petition for adjudication of criminal contempt against Chung and denying his motion to amend his
posttrial motion to incorporate a perjury allegation from his contempt petition.
No. 1-18-1887
¶2 On appeal, plaintiff contends that (1) the jury’s finding that Chung was not the apparent
agent of St. Alexius was against the manifest weight of the evidence and the court erred by refusing
to give jury instructions submitted by plaintiff related to apparent agency; (2) the court erred by
barring plaintiff from using Chung’s Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2018)
disclosure against defendants as an evidentiary admission and as impeachment; (3) the court erred
by allowing defendants’ expert to use certain images during his testimony even though defendants
did not disclose them until the morning of the expert’s testimony; (4) the court erred by barring
plaintiff from cross-examining Chung with the American College of Radiology (ACR) practice
guideline; (5) the cumulative effects of these errors denied plaintiff a fair trial and warrants a new
trial; and (6) the court erred by dismissing plaintiff’s petition for adjudication of criminal contempt
against Chung and by denying plaintiff’s posttrial motion to include the allegations of perjury in
the petition. Defendants contend that the two-issue rule precludes plaintiff from establishing
reversible error. For the reasons stated below, we vacate the judgment and remand for a new trial.
¶3 I. JURISDICTION
¶4 In 2014, plaintiff brought this civil action against various defendants including Chung, St.
Alexius, Dr. Christopher Michael, M.D., and Suburban Women’s Health Specialists, Ltd.
(Suburban). At trial, the jury considered claims against only Chung, Michael, St. Alexius, and
Suburban. On May 21, 2018, the jury issued verdicts in favor of Chung and St. Alexius against
plaintiff and in favor of plaintiff against Michael and Suburban. The court entered judgment on
the verdicts for Chung and St. Alexius that day and entered judgment regarding Michael and
Suburban on May 29, 2018. Plaintiff filed his posttrial motion on June 18, 2018, and later filed his
petition to adjudicate Chung in criminal contempt and motion to amend his posttrial motion. The
court struck the contempt petition and then denied the posttrial motion and the motion to amend
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on August 28, 2018. Plaintiff filed his notice of appeal on August 31, 2018. Accordingly, we have
jurisdiction here pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art.
VI, § 6) and Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017).
¶5 II. BACKGROUND
¶6 This is a wrongful death and survival action raising medical malpractice claims regarding
Marilyn Perez (Marilyn), who died from metastatic pelvic abdominal cancer about seven months
after she gave birth to twins by caesarean section. The cancer, discovered during the June 2013
cesarean section, originated from a teratoma on her left ovary that ruptured in May 2013. Plaintiff
brought suit against various defendants including physicians who treated Marilyn before and
during her pregnancy. The case went to a jury trial against Michael, an obstetrician-gynecologist
involved in her treatment; Suburban, Michael’s medical practice; Chung, the radiologist who
interpreted Marilyn’s ultrasound when she came into St. Alexius’s emergency room on August 11,
2012; and St. Alexius under an apparent agency theory. The jury returned verdicts in favor of
plaintiff against Michael and Suburban for $25 million. It returned verdicts for Chung and St.
Alexius, finding that Chung was not an apparent agent of St. Alexius. Shortly after trial, the court
dismissed Michael and Suburban from the case with prejudice based on a $1 million settlement.
This appeal thus concerns only the verdicts and the rulings regarding Chung and St. Alexius.
¶7 A. Teratoma
¶8 Various experts testified about teratomas, which arise in ovaries and can contain such
matter as fat, teeth, hair, or eyeballs. When a teratoma increases in size, it can cause the ovary to
twist and thus compromise the ovary’s blood supply. The risk of a teratoma rupturing, spilling its
contents into the pelvis and abdomen, also increases as the mass gets larger. A mature teratoma is
generally benign but with a 0.2 to 2% chance of transforming into a malignant teratoma.
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¶9 A computed tomography (CT) scan is considered one of the best radiological methods to
diagnose a teratoma and is superior to an ultrasound for that purpose. A CT scan has much better
sensitivity and provides a better picture and more detail than an ultrasound. Air or matter in a
person’s bowel can obscure sound waves and make it difficult to identify structures and visualize
a teratoma on an ultrasound.
¶ 10 B. Overview of Timeline
¶ 11 Michael, Marilyn’s primary obstetrician-gynecologist, referred her in September 2011 to
Dr. Vishvanath Karande, an obstetrician-gynecologist and fertility specialist, for fertility treatment
and in vitro fertilization.
¶ 12 On August 11, 2012, Marilyn went to the St. Alexius emergency room with pelvic pain,
and emergency room physician Dr. Al Sarraj ordered a CT scan and ultrasound. Dr. Gregory Gullo
read the CT scan and reported a teratoma on Marilyn’s left ovary. Chung interpreted the ultrasound
and reported that Marilyn’s ovaries were “unremarkable” and there was “[n]o adnexal mass seen.”
Chung did not refer to the CT report or a teratoma in his report.
¶ 13 Michael saw Marilyn five days after her emergency room visit and reviewed the CT report,
which identified the teratoma, and the ultrasound report, which did not refer to a teratoma. Michael
concluded that Marilyn did not have a teratoma. Marilyn proceeded with in vitro fertilization
treatments and became pregnant with twins after Karande implanted embryos in December 2012.
¶ 14 On March 8, 2013, Marilyn went to St. Alexius for abdominal pain and had an
appendectomy after showing symptoms consistent with appendicitis. On March 13, 2013, she was
admitted to St. Alexius for the same abdominal pain. A CT scan of Marilyn’s pelvis taken that day
showed she had a teratoma. Additional pregnancy ultrasounds, looking at the same area as a pelvic
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ultrasound, were taken in March 2013 and the physicians interpreting these ultrasounds did not
identify the teratoma on the ultrasounds.
¶ 15 On May 3, 2013, Marilyn was admitted to St. Alexius for acute onset abdominal pain.
Plaintiff’s expert Dr. Marcela Guadalupe DelCarmen testified that the teratoma had ruptured at
that time, causing the contents of the teratoma to leak. That leakage in turn caused Marilyn
“stabbing abdominal pain” and tenderness and caused metastatic cancer to spread. During
Marilyn’s caesarian section on June 21, 2013, the ruptured teratoma was removed. On January 15,
2014, Marilyn died as a result of metastatic cancer from the teratoma.
¶ 16 C. Emergency Room Consent Form
¶ 17 On August 11, 2012, Marilyn’s husband, Jesse, took her to the St. Alexius emergency room
because she had severe pelvic pain. They chose St. Alexius as it was near their home, had a “very
good reputation,” and “was like a one-stop shop, *** any service you need was available there.”
They had gone to St. Alexius’s emergency room about a year earlier due to the flu.
¶ 18 Jesse testified about the circumstances around Marilyn’s execution of the consent form
during the visit. As Marilyn was in the examination room, a woman came in and told Marilyn that
she had “to sign here, here, here.” The woman did not explain the form and was in the room for
“[n]ot even a minute.” Jesse acknowledged that Marilyn’s signature was on the form, a one-page
document entitled “Consent for Medical Treatment.” The second section on the form contained an
“Authorization to Release Information” section, which stated in the second paragraph:
“INDEPENDENT STATUS OF PHYSICIANS: I recognize that any or all physicians,
residents, or medical students (under the supervision of physicians and/or residents),
who furnish services to me during this admission are INDEPENDENT
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CONTRACTORS and are NOT AGENTS OR EMPLOYEES OF THE HOSPITAL.”
(Emphasis in original.)
Jesse acknowledged that Marilyn had a PhD and was detail-oriented. He could not recall whether
Marilyn expressed any confusion about signing the form. Neither Marilyn nor Jesse met Chung,
had heard of him before that day, or had chosen him to read Marilyn’s ultrasound.
¶ 19 D. CT and Ultrasound Reports of August 11, 2012
¶ 20 Emergency room physician Sarraj ordered a CT scan of Marilyn’s abdomen and pelvis.
Gullo, a general diagnostic radiologist at St. Alexius, reviewed the CT scan and signed his report
at 2:29 p.m. He reported that the CT scan showed that Marilyn had multiple fibroids and a teratoma
above the uterus about the size of a softball, 7 by 6.3 centimeters.
¶ 21 Sarraj ordered an ultrasound of Marilyn’s pelvis due to her pelvic pain. Plaintiff’s expert
DelCarmen testified that Sarraj’s deposition testimony showed he ordered the ultrasound “not to
confirm the teratoma” but “to determine whether there was appropriate blood flow” to the ovaries
to check they were not twisted, which would require emergency surgery. Plaintiff’s expert Dr.
Richard Gore also testified that Sarraj ordered the ultrasound to examine blood flow to the ovary.
¶ 22 Chung interpreted the ultrasound images and signed his report at 4:56 p.m. Chung reported
that Marilyn had five fibroids, the left ovary was “unremarkable,” there was “[n]o adnexal mass
seen,” and the ultrasound confirmed that there was adequate blood flow to both ovaries. Chung’s
report stated “Comparison: None,” meaning that he did not conduct any comparison examinations.
¶ 23 Sarraj told Jesse and Marilyn that Marilyn had a teratoma that should be removed. He
initially wanted to admit her to the hospital but ultimately discharged her with instructions to
follow up with Michael.
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¶ 24 E. Karande’s Testimony
¶ 25 Marilyn began seeing Karande in October 2011 for fertility treatments and was implanted
with embryos in December 2012. Under Karande’s care, Marilyn’s ovaries were always normal,
including at the time of implantation. Karande never had a reason to think that Marilyn had a
teratoma. Had Karande known she had a teratoma larger than two centimeters, he would not have
proceeded with in vitro fertilization but would have sent her to Michael for further evaluation.
¶ 26 F. Michael’s Testimony
¶ 27 Michael was Marilyn’s obstetrician and saw her on August 16, 2012, five days after her
emergency room visit. Michael had the August 11 CT report that showed a fat density pattern
consistent with a teratoma and the August 11 ultrasound report that indicated Marilyn’s ovaries
were normal. Michael concluded that Marilyn’s ovaries were normal because the ultrasound report
indicated “normal ovaries.” Based on Chung’s ultrasound report, Michael concluded that Marilyn
did not have a teratoma, as teratomas come from ovaries and she could not have a normal ovary
with a teratoma. Relying on Chung’s report, Michael told Marilyn that she did not need surgery to
remove a teratoma and could continue with in vitro fertilization.
¶ 28 Michael did not think there was a discrepancy between the CT and ultrasound reports
because the calcium and fat pattern description of a teratoma, as indicated in the CT report, could
also be consistent with fibroids. Michael did not communicate with Chung or Gullo. In August
2012, Michael knew that a CT test was a more definitive test than an ultrasound to diagnose a
teratoma. If a patient had a seven-centimeter teratoma and wanted to get pregnant, the standard of
care required Michael to recommend removing the teratoma.
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¶ 29 G. Chung’s Testimony
¶ 30 Chung testified that he was a board-certified diagnostic radiologist who was a partner at,
and employed by, Midsuburban Radiological Associates, LLC. He was not an employee of St.
Alexius. St. Alexius gave him privileges to work in its radiology department—he was on the
medical staff and permitted to practice his specialty there—and St. Alexius could revoke his
privileges. Chung testified that St. Alexius did not hire him, could not fire him, and did not control
his practice. He had to adhere to a work rotation rather than working when he pleased. He was
required to use his own medical judgment. St. Alexius supplied Chung’s workspace; all equipment
including computers, furniture, and radiology equipment; and the scans he interpreted.
¶ 31 On August 11, 2012, St. Alexius assigned Chung to review Marilyn’s pelvic ultrasound.
He never met Marilyn or Jesse, and his ultrasound interpretation was his only involvement with
Marilyn. He reviewed about 100 different studies on that day and had no independent memory of
Marilyn’s case, so he testified based on his general memory of his custom and practice.
¶ 32 Sarraj ordered the ultrasound for Marilyn because she had pelvic pain. Chung looked at
Marilyn’s ultrasound images to determine whether there was consistent blood flow to both ovaries.
Chung’s ultrasound report indicated “left ovary unremarkable” and that Marilyn had five fibroids.
He indicated “Comparison: None,” meaning that he did not look at a comparison examination.
Chung could not remember whether he looked at that day’s CT scan when he interpreted Marilyn’s
ultrasound. If he had reviewed the CT report, he would have documented it in his ultrasound report.
He did not see any signs of a teratoma on Marilyn’s August 11 ultrasound.
¶ 33 Chung knew that other physicians treating Marilyn would rely on his report. On the day of
trial, he still did not think his report was wrong. He did not see an ovarian mass, and there was
clear evidence that Marilyn had multiple fibroids. He testified that the standard of care for a
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radiologist was to compare relevant exams, in this case, other pelvic ultrasounds. If he “had any
questions or needed more information or both, then I think the standard would require me to look
beyond that into other modalities or other examinations as well.” He did not have any questions
with Marilyn’s ultrasound report that would have caused him to look to a CT scan for comparison.
¶ 34 Chung also testified that if he had been aware of the CT scan, it would have been his custom
and practice to review it as part of his ultrasound interpretation. Plaintiff’s counsel played a video
of Chung’s deposition testimony with the following colloquy:
“Q. So when you were looking at these images of this ultrasound, were you doing so
with the teratoma in mind that you knew was identified on the CT from two hours
earlier?
A. Well, to answer the question, yes, but that’s not the only thing I’d be concerned
about or looking at or trying to evaluate.”
¶ 35 St. Alexius had a computerized record system that allowed Chung to access the CT and
ultrasound images. When Chung reviewed an ultrasound in the system, previous ultrasound
examinations automatically populated. While other comparison studies such as a CT scan did not
automatically populate, he could search the system to find them. However, Chung had no reason
to search the system for other comparison studies. He had the technologist’s worksheet when he
reviewed the ultrasound, using it to obtain Marilyn’s clinical history and the reason for the
examination, but it did not show that a CT scan had been performed that day.
¶ 36 At trial, Chung identified an “order form” or “requisition form” that the technologist
received from the emergency room physician. The form showed previous examinations performed
on Marilyn, including the August 11 CT scan. However, Chung did not look at this document or
use it when he interpreted the images. Based on his background and experience, it was his opinion
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that his interpretation of the August 11, 2012, ultrasound complied with the standard of care. The
ultrasound interpretation and report did not negate the findings of the CT scan.
¶ 37 H. Expert Testimony
¶ 38 1. Gore
¶ 39 Gore, a diagnostic radiologist and medical school professor, testified as an expert for
plaintiff regarding the standard of care for Chung’s ultrasound interpretation of August 11, 2012.
The CT report and images from that day showed that Marilyn had a 7 by 6.3 centimeter sized
teratoma. Gore identified the teratoma in the August 11 ultrasound without having the CT report
and did not see a normal left ovary in the ultrasound images. He also testified that he knew “what
the mass is because I do have the CT.”
¶ 40 Gore testified that the standard of care required Chung to review the CT images next to the
ultrasound images. Gore was an ACR fellow, and the ACR practice guideline for communication
of diagnostic imaging findings supported his opinions regarding the standard of care. The guideline
provided that, when there is a previous exam of the same body part, the radiologist should compare
the “current exam with the older exam if it’s available and the same body part.” The ACR guideline
stated that it was not intended to establish a legal standard of care and cautioned against its use in
litigation but also suggested that a radiologist taking a substantially different approach from the
guideline explain or document why in the medical record. Gore considered the guideline “a good,
safe, prudent standard medical practice, radiology practice.”
¶ 41 Chung had testified in his deposition that it was his custom and practice, as well as the
standard of care, to look at prior examinations of the same body part. Gore testified that Chung
violated the standard of care by not mentioning the teratoma identified on the August 11 CT report
as a comparison study in his ultrasound report and by describing both ovaries as unremarkable in
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his report. If Chung had been aware of the CT showing the teratoma, he should have stated so in
his ultrasound report. If he did not review the CT, he should have found the CT report and included
it in his ultrasound report.
¶ 42 When Chung was preparing his August 11 ultrasound report, the CT scan performed earlier
that day did not automatically populate in the system to show that it had been performed, but the
requisition form in the system showed that the CT scan was available for a comparison study. Gore
acknowledged that the teratoma diagnosis on the CT report remained valid regardless of Chung’s
ultrasound report. He also acknowledged that ultrasound reports prepared by other physicians in
March 2013 did not indicate that Marilyn had a large ovarian teratoma. The first time any physician
described a problem with Marilyn’s left ovary based on an ultrasound was on April 15, 2013.
¶ 43 2. Dr. Davide Bova
¶ 44 Dr. Davide Bova, a board-certified radiologist and former head of the Chicago
Radiological Society, testified as an expert for St. Alexius and Chung. It was Bova’s opinion that
Chung complied with the standard of care when he interpreted and reported on the August 11,
2012, ultrasound images. Bova agreed with Chung’s ultrasound report findings and testified that,
from his review of the ultrasound images, there was evidence of an unremarkable left ovary and
that there was no adnexal mass, teratoma, or any significant ovarian mass. Chung complied with
the standard of care when he did not compare the CT scan with the ultrasound because they look
at different structures and diseases. There were “no elements” in the ultrasound images that would
have prompted Chung to look for another study, and there was no reason for Chung to reference
the CT or teratoma in his ultrasound report.
¶ 45 Plaintiff’s counsel examined Bova regarding Chung’s deposition testimony. Chung had
testified that his “standard practice would be to look at the CT examination in conjunction with
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the ultrasound” and he did not report the teratoma in his ultrasound report because it would have
been redundant. Plaintiff’s counsel also asked Bova about Chung’s initial Rule 213(f) disclosure:
“Q. Fourth paragraph: ‘Dr. Chung will further testify that based on his custom and
practice, he would have reviewed the CT scan and reports from August 11, 2012, and
would have been aware of Dr. Gullo’s finding of the teratoma. Further, he will testify
that it was also his custom and practice to compare the ultrasound to the CT at that
time. He will testify that even though the report states there was no comparison, it was
his custom and practice to compare the films and likely did so in 2012.’ Did I read that
correctly?
A. Yes, sir.”
¶ 46 During Bova’s testimony, he used a PowerPoint exhibit that included sagittal or side view
images he reconstructed from the CT images taken on August 11, 2012. To create the new images,
Bova used a software program that was “freeware downloadable from the internet.” Chung did not
have the sagittal images when he interpreted the ultrasound images on August 11, 2012. Plaintiff’s
counsel objected to Bova’s use of the sagittal images based on Rule 213(f), noting that they were
not disclosed to plaintiff until the morning of Bova’s testimony. The court overruled plaintiff’s
objection, finding that they were being used as demonstrative exhibits. Using one of the sagittal
images, Bova testified that the teratoma was located “immediately above the field of view” of the
ultrasound images. The teratoma “was big enough that it pushed itself outside of the pelvis, and,
therefore, was never in the field of view.” In every ultrasound taken from October 2011 to April
2013, Bova did not see a teratoma, as it was always outside the field of view.
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¶ 47 3. DelCarmen
¶ 48 DelCarmen, a professor and board-certified physician in obstetrics, gynecology, and
gynecologic oncology, testified as an expert for plaintiff. The August 11, 2012, CT report showed
that Marilyn had a 7 by 6.3 centimeter teratoma on her left ovary. Given the size of the teratoma,
Marilyn probably had it for years. An ovary with a “tennis-sized” ball teratoma attached was not
normal or “unremarkable.” On cross-examination, DelCarmen acknowledged that, even with a
growing teratoma, the ovary could be documented as “normal” on an ultrasound.
¶ 49 According to DelCarmen’s review of the record, Michael relied on Chung’s ultrasound
report in concluding that Marilyn did not have a teratoma. DelCarmen testified that Michael’s
reliance was a proximate cause of Marilyn developing metastatic cancer; if the teratoma had been
removed in August 2012, she would not have developed cancer. Asked how a seven-centimeter
teratoma could attach to a two-centimeter ovary, DelCarmen explained that an ovary expands
when there is a growth on it. “You can blow a bubble but still have a little bit of gum left in your
mouth. *** so normal ovary, and then an expansion essentially around it of also ovarian tissue that
forms the cyst, but still have a part of that ovary that looks normal on either visual inspection or
by imaging.” The August 11 ultrasound did not negate the finding of the teratoma on the CT scan.
¶ 50 4. Dr. Yvonne Gomez-Carrion
¶ 51 Dr. Yvonne Gomez-Carrion, a physician board-certified in obstetrics and gynecology,
testified as an expert for plaintiff. She reviewed the August 11 CT report and identified a 7 by 6.3
centimeter teratoma on Marilyn’s left ovary. Gomez-Carrion reviewed the August 11 ultrasound
report and could “not clearly” identify a left ovary. She testified that Michael violated the standard
of care by failing to, by contacting a radiologist or in some other manner, resolve the difference
between the August 11 CT report identifying a seven-centimeter teratoma and the August 11
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ultrasound report that Marilyn had “normal ovaries.” She testified that Michael also violated the
standard of care by failing to inform Karande that the CT report showed Marilyn had a teratoma.
Michael’s violations of the standard of care were proximate causes of Marilyn’s death.
¶ 52 5. Dr. Linda Holt
¶ 53 Dr. Linda Holt, a physician specializing in obstetrics and gynecology, testified as an expert
for Michael. An ultrasound is “considered the first line evaluation and the standard evaluation for
imaging ovaries.” She testified that Michael complied with the standard of care. It was appropriate
for him to rely on the CT and ultrasound reports and to conclude that Marilyn did not have a
teratoma on August 16, 2012, because a teratoma would have made “the ovaries look abnormal.”
¶ 54 I. Jury Instructions
¶ 55 Illinois Pattern Jury Instructions, Civil, No. 105.10 (2011) (hereinafter IPI Civil No.
105.10) is the burden of proof instruction for claims based on apparent agency. Plaintiff submitted
a modified jury instruction to add the words “or agent” to the IPI Civil No. 105.10 pattern
instruction:
“First, that St. Alexius held itself out as a provider of complete radiology care and that
Marilyn Perez neither knew nor should have known that Dr. Chung was not an employee
or agent of St. Alexius.” (Emphasis added.)
The court refused plaintiff’s modified instruction and gave unmodified IPI Civil No. 105.10 to the
jury:
“First, that St. Alexius Medical Center held itself out as a provider of radiological care
and that Marilyn Perez neither knew or nor should have known that Dr. Jeffrey Chung,
M.D. was not an employee of St. Alexius Medical Center.”
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The trial court also refused plaintiff’s request to give IPI Civil No. 50.10, entitled “Agent or
Independent Contractor.”
¶ 56 J. Verdicts and Posttrial Motions
¶ 57 The jury returned a verdict in favor of plaintiff against Michael and Suburban for $25
million. The jury returned a verdict in favor of defendants Chung and St. Alexius against plaintiff,
expressly finding that Chung was not the apparent agent of St. Alexius. After trial, pursuant to a
settlement for $1 million, the court dismissed Michael and Suburban as defendants with prejudice.
¶ 58 The court denied plaintiff’s posttrial motion and his motion to amend his posttrial motion.
The court also struck plaintiff’s “Verified Local Rule 23.9 Petition to Issue Rule to Show Cause”
against Chung. The allegation that plaintiff raised in his contempt petition and wanted to add to
his posttrial motion was that Chung committed perjury because his testimony in another case
(Estate of Newberry v. Iza, No. 14 L 7734 (Cir. Ct. Cook County)), after the trial herein, regarding
his use of St. Alexius’s “requisition forms” completely contradicted his testimony here.
Specifically, Chung allegedly testified in the other case that, in interpreting ultrasounds, he
reviewed the requisition forms referencing the patient’s previous examinations, while in this case
he testified that he never looked at the form when interpreting ultrasound images. This appeal
followed.
¶ 59 III. ANALYSIS
¶ 60 On appeal, plaintiff contends that the jury’s finding that Chung was not the apparent agent
of St. Alexius was against the manifest weight of the evidence. He contends that the trial court
erred by refusing to give his modified jury instruction IPI Civil No. 105.10 and IPI Civil No. 50.10.
He contends that the court erred by barring him from using Chung’s Rule 213(f) disclosure, by
barring him from examining Chung with the ACR practice guideline, and by allowing Bova to use
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certain images during his testimony even though defendants did not disclose them until the
morning of Bova’s testimony. Plaintiff also contends that the cumulative effects of the court’s
errors denied him a fair trial and warrants a new trial against both defendants. Lastly, he contends
that the court erred by striking his petition for adjudication of criminal contempt against Chung
and by denying his motion to amend his posttrial motion to include his perjury allegation.
Defendants contend that the two-issue rule precludes plaintiff from establishing reversible error.
We shall address these contentions in a different order than just described.
¶ 61 A. Chung’s Rule 213(f)(3) Disclosure
¶ 62 Plaintiff contends that the trial court erred by barring him from using Chung’s Rule
213(f)(3) disclosure against defendants. He asserts that Chung’s Rule 213(f)(3) disclosure is an
evidentiary admission under Illinois Supreme Court Rule 213(h) (eff. Jan. 1, 2018), Illinois
Supreme Court Rule 212(a)(2) (eff. Jan. 1, 2011), and Illinois Rule of Evidence 801(d)(2) (eff.
Oct. 15, 2015). Plaintiff claims that, by barring him from using Chung’s Rule 213(f)(3) disclosure,
the court prevented him from undermining defendants’ defense at trial.
¶ 63 Chung filed his initial answer to plaintiff’s Rule 213(f)(3) interrogatories, which his
counsel signed, in January 2017. The initial disclosure stated in relevant part:
“Dr. Chung will further testify that based on his custom and practice, he would have
reviewed the CT scan and reports from August 11, 2012, and would have been aware of
Dr. Gullo’s finding of the teratoma. Further, he will testify that it was also his custom and
practice to compare the ultrasound to the CT scan at that time. He will testify that even
though the report states there was no comparison, it was his custom and practice to compare
the films, and likely did so in 2012.”
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In August 2017, Chung filed updated answers to plaintiff’s Rule 213(f)(3) interrogatories, which
his counsel signed. The updated disclosure stated in relevant part:
“Dr. Chung will further testify that based on his custom and practice, he reviews
relevant CT scans and reports when interpreting ultrasound imaging. Further, he will testify
that it was also his custom and practice to compare the ultrasound to the CT if there was a
question or difficulty in interpreting the ultrasound, which was not the case on the August
11, 2012 ultrasound.”
Plaintiff claims that defendants argued at trial that Chung did not know about the teratoma when
he reviewed the ultrasound and that barring plaintiff’s use of Chung’s Rule 213(f)(3) disclosure
allowed defendants to hide from the jury Chung’s admission in his disclosure that he had been
aware of the teratoma when he reviewed the ultrasound.
¶ 64 As an initial matter, defendants assert that plaintiff forfeited the issue by failing to submit
an offer of proof. “The purpose of an offer of proof is to disclose the nature of the offered evidence
to which objection is interposed, for the information of the trial judge and opposing counsel, and
to enable the reviewing court to determine whether the exclusion was erroneous and harmful.”
Sekerez v. Rush University Medical Center, 2011 IL App (1st) 090889, ¶ 68. Generally, an offer
of proof is required to preserve for review a question as to whether the court properly excluded
evidence, but an offer of proof may not be necessary if the record clearly shows that the trial court
already had all of the evidence it needed to make an assessment regarding admissibility and
possible prejudice from exclusion. Id. We find that plaintiff did not forfeit this contention for lack
of an offer of proof because we find that on this record that the trial court had all the evidence it
needed to make its evidentiary ruling.
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¶ 65 Rule 213(f)(3) concerns a party’s answer to written interrogatories regarding, as relevant
here, “a person giving expert testimony who is the party, the party’s current employee, or the
party’s retained expert.” Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018). Illinois Supreme Court Rule
213(h) (eff. Jan. 1, 2018), provides that “[a]nswers to interrogatories may be used in evidence to
the same extent as a discovery deposition.” In turn, Rule 212(a) provided at all relevant times that
a discovery deposition can be used as impeachment and “as an admission made by a party or by
an officer or agent of a party in the same manner and to the same extent as any other admission
made by that person.” Ill. S. Ct. R. 212(a)(1), (2) (eff. Jan. 1, 2011). Illinois Rule of Evidence
801(d)(2) establishes that hearsay does not include a statement offered against a party when it is
the party’s own statement or “a statement by a person authorized by the party to make a statement
concerning the subject.” Ill. R. Evid. 801(d)(2)(A), (C) (eff. Oct. 15, 2015).
¶ 66 Admitting evidence under Rule 213 is a matter for the trial court’s discretion and its ruling
will not be disturbed absent an abuse of discretion. Sullivan v. Edward Hospital, 209 Ill. 2d 100,
109 (2004). This court held in York v. El-Ganzouri, 353 Ill. App. 3d 1, 18 (2004), that when an
attorney signs an interrogatory answer under Rule 213(f), rather than the expert disclosed in the
answer, the answer can nonetheless be used as impeachment.
“That the interrogatory answers may have been completed and signed by an attorney,
as opposed to the expert, in our view, cannot justify modification of the plain meaning of
the rule allowing impeachment. Courts have long understood that the answers to Rule 213
interrogatories surrounding experts are a collaboration between the expert and the retaining
party.” Id.¶ 67 Here, the record shows that plaintiff’s counsel wanted to use Chung’s Rule 213(f)(3)
disclosure as an evidentiary admission or alternatively as impeachment. The court and parties
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discussed whether Chung’s Rule 213(f)(3) disclosure could be used as an evidentiary admission
multiple times during Chung’s testimony. The court found that because the issue involved a party
expert’s Rule 213(f)(3) disclosure signed by the party’s attorney as opposed to a nonparty expert
disclosure signed by an attorney, the issue was different and the court was concerned about waiving
the attorney client privilege. In one sidebar discussion, the court stated:
“You know where I see the difference? If an expert did it, a retained expert, you
can cross-examine the expert on the conversation that the expert had with the attorney
because there’s no privilege there. Were these the opinions that he gave? Did you talk to
your attorney about these opinions? For an expert, that’s where I see that that would be an
appropriate line of questioning. *** But for the defendant, I’m not sure that I’m
comfortable with you getting into any discussions that may have occurred between the
attorney and the client.”
¶ 68 However, we consider it key that Rule 213(f)(3) does not distinguish between “the party,
the party’s current employee, or the party’s retained expert.” See Ill. S. Ct. R. 213(f)(3) (eff. Jan.
1, 2018). All are controlled expert witnesses so long as they are giving expert testimony, and Rule
213(f)(3) requires that “[f]or each controlled expert witness, the party must identify: (i) the subject
matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the
bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness
about the case.” Id. In short, Rule 213(f)(3) does not support the distinction made by the trial court
in allowing the use of Chung’s disclosure of his intended testimony in examining expert witnesses
but not Chung himself. We find York persuasive; if a party’s retained expert can be impeached
with a disclosure by the party’s attorney, as York holds, it is not a leap of law or logic to hold a
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disclosure by the party’s attorney against the party himself. The Rule 213(f)(3) disclosure on behalf
of Chung as a defendant stated what Chung himself would testify to as a witness.
¶ 69 With all that in mind, we consider it an absurd result to hold as the trial court did that
Chung’s expert witness could be confronted with the disclosure but Chung could not. Due to an
earnest but excessive concern over attorney-client privilege, the trial court allowed the possibility
that Chung would attribute the inconsistency to his attorney to deprive plaintiff of the ability to
have Chung himself explain the inconsistency between the discovery disclosure as Chung’s
statements and Chung’s own trial testimony.
¶ 70 As to prejudice, the trial court did allow plaintiff to use Chung’s Rule 213(f)(3) disclosure
for some purposes during the trial. Plaintiff’s counsel read Chung’s disclosure verbatim during the
testimony of defendants’ experts and referred to it during closing argument:
“Those were his 213 disclosures after his deposition. Custom and practice, he would
have reviewed the CT scan and reports from August 11, 2012, and would have been aware
of Dr. Gullo’s findings of the teratoma. It was also his custom and practice to compare the
ultrasound to the CT at that time.”
Also, during Chung’s testimony, the court permitted plaintiff’s counsel to play a video of Chung’s
discovery deposition testimony in which he admitted knowing about the teratoma when he was
reviewing the ultrasound. The following colloquy from Chung’s discovery deposition was played
at trial during Chung’s testimony:
“Q. So when you were looking at these images of this ultrasound, were you doing so
with the teratoma in mind that you knew was identified on the CT from two hours earlier?
A. Well, to answer the question, yes, but that’s not the only thing I’d be concerned
about or looking at or trying to evaluate.”
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¶ 71 However, we find prejudicial error in not allowing plaintiff to confront Chung in cross-
examination with his Rule 213(f)(3) discovery disclosure. Chung disclosed before trial that he
would have reviewed the CT scan and reports from August 11, 2012, would have been aware of
the teratoma finding from the CT scan, and it was his custom and practice to compare the
ultrasound to the CT scan even if his report stated otherwise. Plaintiff should have been able to
confront Chung with the stark contrast between that statement and his trial testimony, not only as
impeachment of Chung’s credibility but as Chung’s admission tending to show his awareness of
the teratoma finding from the CT scan and his awareness that not comparing the CT scan and
ultrasound was not proper care. Similarly, while Chung was confronted with his deposition
testimony obliquely admitting that he was aware of the teratoma finding when he read the
ultrasound, we find that evidence does not have the same effect as confronting Chung with the full
impact of the discovery response at issue: that he would have reviewed the CT scan and report,
would have been aware of the teratoma finding from the CT scan and report, and would have
compared the ultrasound to the CT scan even if his report stated otherwise.
¶ 72 In sum, we find that the trial court erred by not allowing Chung’s Rule 213(f)(3) discovery
disclosure to be used in cross-examining Chung at trial and that plaintiff was prejudiced thereby.
¶ 73 B. ACR Practice Guideline
¶ 74 Plaintiff contends that the trial court erred by barring him from examining Chung about the
ACR practice guideline that, if there is a prior exam of the same body part, a radiologist should
compare the current exam with the prior exam if it is available.
¶ 75 Defendants respond that plaintiff forfeited the issue by failing to make an offer of proof.
Based on our review of the record, we find the issue was not forfeited because the court had the
information it needed to make its decision on whether to allow the testimony. See Sekerez, 2011
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IL App (1st) 090889, ¶ 68. Plaintiff’s expert Gore testified about the guideline before Chung’s
testimony. Thus, when the court had to decide whether to allow testimony about the guideline
during Chung’s cross-exanimation, the court had already heard testimony from Gore about the
guideline and its standard of care. Also, when defendants objected during Chung’s cross-
examination about the guideline, the parties discussed the guideline and what plaintiff’s counsel
believed Chung’s testimony would be, stating: “Our expert says that it supports his opinion of the
standard of care. And I bet this witness is going to say the exact same thing, that he agrees with
these principles and I mean—He will say that they support his opinion of the standard of care.”
¶ 76 Decisions on the admission of evidence will not be disturbed absent an abuse of discretion.
Fragogiannis v. Sisters of St. Francis Health Services, Inc., 2015 IL App (1st) 141788, ¶ 27.
“A learned text can be used for impeachment on cross-examination in any of the following
three circumstances: (1) the trial court takes judicial notice of the author’s competence;
(2) the witness concedes the author’s competence; or (3) the cross-examiner proves the
author’s competence by a witness with expertise in the subject matter.” Id.If a publication is established as authoritative, an expert who does not recognize the publication
may nonetheless be cross-examined with it. Iaccino v. Anderson, 406 Ill. App. 3d 397, 408 (2010).
¶ 77 Here, the trial court placed great weight on the fact that Chung was not a member of the
ACR and was unfamiliar with the guideline. However, as stated above, an expert witness can be
cross-examined with an authoritative text he is not previously familiar with. While the guideline’s
preamble stated it was not intended to establish a legal standard of care and cautioned against using
the guideline in litigation, plaintiff’s expert Gore, familiar with the guideline, testified that it
supported his opinions on standard of care and was “a good, safe, prudent standard *** radiology
practice.” We find that plaintiff proved the guideline’s competence or authoritativeness with the
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testimony of an expert witness familiar with the guideline so that plaintiff should have been
allowed to cross-examine Chung regarding the guideline.
¶ 78 As to prejudice, we find that the court’s ruling barred plaintiff from asking Chung what he
thought of the guideline and to explain his decisions in light of the guideline. It is true that the jury
heard about the content of the guideline from Gore’s testimony:
“The guideline says that if you’ve got an old exam of the same body part, you know, it’s
your duty to the patient to compare your current exam with the older exam if it’s available
and the same body part. And that’s just good medical practice, you know, irrespective of
what this guideline says.”
However, plaintiff was not allowed to confront Chung himself with the guideline to attempt to
elicit an admission from Chung that the guideline described good medical practice and an
explanation of his decisions compared to the guideline. We conclude that the trial court abused its
discretion and committed reversible error by not allowing plaintiff’s counsel to cross-examine
Chung about the ACR guideline.
¶ 79 C. Apparent Agency Instruction
¶ 80 Plaintiff also contends that the trial court did not properly instruct the jury regarding
apparent agency. Plaintiff contends that the court erred by refusing to give his modified version of
IPI Civil No. 105.10, arguing that IPI Civil No. 105.10 as it stood at the time of trial did not
accurately state the law regarding a plaintiff’s burden of proof on apparent agency because it
referenced only employees and not agents generally.
¶ 81 Under the doctrine of apparent agency, when a physician is not an employee of the hospital
but is an independent contractor, a hospital may be held liable for a physician’s negligence. York
v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 179 (2006). For a hospital to be
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liable under the apparent agency theory, a plaintiff must prove that (1) the hospital, or its agent,
acted in a manner that would lead a reasonable person to conclude that the alleged negligent
physician was an employee or agent of the hospital; (2) the acts of the agent created the appearance
of authority and “the plaintiff must also prove that the hospital had knowledge of and acquiesced
in them”; and (3) “the plaintiff acted in reliance upon the conduct of the hospital or its agent.”
(Internal quotation marks omitted.) Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 525
(1993).
¶ 82 The first two elements of apparent agency are collectively called the holding out factor.
Mizyed v. Palos Community Hospital, 2016 IL App (1st) 142790, ¶ 39. Under the holding out
factor, “[i]f a patient knows, or should have known, that the treating physician is an independent
contractor, then the hospital will not be liable.” Gilbert, 156 Ill. 2d at 522-23. Thus, “if a patient
is placed on notice of the independent status of the medical professionals with whom he or she
might be expected to come into contact, it would be unreasonable for a patient to assume that these
individuals are employed by the hospital.” York, 222 Ill. 2d at 202. An important consideration in
evaluating the holding out factor is whether a patient signed a consent form with unambiguous
independent status disclaimer language, “ ‘because it is unlikely that a patient who signs such a
form can reasonably believe that [his] treating physician is an employee or agent of a hospital
when the form contains specific language to the contrary.’ ” Mizyed, 2016 IL App (1st) 142790,
¶ 40 (quoting Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st) 101558, ¶ 27).
¶ 83 The holding out factor does not require an express representation by the hospital that the
person alleged to be negligent is an employee or agent but only that the hospital holds itself out as
a provider of emergency room care without informing the patient that the care is provided by
independent contractors. Gilbert, 156 Ill. 2d at 525. Similarly, the third element of justifiable
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No. 1-18-1887
reliance is satisfied by showing reliance upon the hospital, rather than a specific physician, to
provide medical care. Id.“ ‘[T]he critical distinction is whether the plaintiff is seeking care from the hospital itself
or whether the plaintiff is looking to the hospital merely as a place for his or her personal
physician to provide medical care. Except for one who seeks care from a specific physician,
if a person voluntarily enters a hospital without objecting to his or her admission to the
hospital, then that person is seeking care from the hospital itself. An individual who seeks
care from a hospital itself, as opposed to care from his or her personal physician, accepts
care from the hospital in reliance upon the fact that complete emergency room care—from
blood testing to radiological readings to the endless medical support services—will be
provided by the hospital through its staff.’ ” (Emphasis added.) Id. at 525-26 (quoting
Pamperin v. Trinity Memorial Hospital, 423 N.W.2d 848, 857 (Wis. 1988)).
¶ 84 IPI Civil No. 105.10 is entitled “Claims Based On Apparent Agency—Both Principal And
Agent Sued—Principal Sued Under Respondeat Superior Only—Medical Malpractice Actions—
Reliance On Principal Alleged.” In other words, IPI Civil No. 105.10 is the burden of proof
instruction for claims based on apparent agency. Our supreme court has stated that a “trial court is
required to use an Illinois Pattern Jury Instruction when it is applicable in a civil case after giving
due consideration to the facts and the prevailing law, unless the court determines that the
instruction does not accurately state the law.” Schultz v. Northeast Illinois Regional Commuter
R.R. Corp., 201 Ill. 2d 260, 273 (2002). The Illinois Supreme Court Rules likewise provide that,
“[w]henever Illinois Pattern Jury Instructions (IPI), Civil, contains an instruction applicable in a
civil case, giving due consideration to the facts and the prevailing law, and the court determines
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that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court
determines that it does not accurately state the law.” Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013).
¶ 85 The trial court has discretion in determining which instructions to give the jury, and we
will not disturb its decision absent an abuse of discretion. Luye v. Schopper, 348 Ill. App. 3d 767,
773 (2004). “When deciding whether a trial court abused its discretion, a reviewing court will
examine the jury instructions in their entirety, to determine whether they fairly, fully and
comprehensively informed the jury of the relevant law.” LaSalle Bank, N.A. v. C/HCA
Development Corp., 384 Ill. App. 3d 806, 813 (2008). However, when the issue is whether the jury
instructions accurately stated the law, our review is de novo. Doe v. Bridgeforth, 2018 IL App (1st)
170182, ¶ 66. “In either case, ‘[a] reviewing court ordinarily will not reverse a trial court for giving
faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant.’ ”
Id. (quoting Schultz, 201 Ill. 2d at 274).
¶ 86 Here, the jury instruction on apparent agency made no mention of agency but referred
strictly to whether Chung was an employee. While the instruction was based on IPI Civil No.
105.10, it is axiomatic as stated above that pattern instructions may be modified if they do not
accurately state the law. We find that IPI Civil No. 105.10 at the time of trial, and the jury
instruction in this case based upon it, did not accurately state the law. We find persuasive support
for our conclusion in the 2019 revision of IPI Civil No. 105.10 to include the words “agent or”
before the word “employee,” thus rendering it consistent with case law. See Illinois Pattern Jury
Instructions, Civil, No. 105.10 (revised May 2019).
¶ 87 We also find that the instruction at issue was misleading. In a medical malpractice context,
a hospital’s liability is based on whether the patient is placed on notice of the “independent status
of the medical professionals with whom he or she might be expected to come into contact.” York,
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222 Ill. 2d at 202. We find that the consent form presented to Marilyn, in a perfunctory manner
while she was in pain, was ambiguous and inadequate to convey whether Chung was independent
of St. Alexius. The jury, erroneously instructed to focus on whether Marilyn “neither knew nor
should have known that [Chung] was not an employee of St. Alexius,” was likely to give undue
weight to Chung’s testimony that he was not an employee of St. Alexius.
¶ 88 We find the consent form ambiguous or inadequate in two distinct manners. The first is
that the phrasing that “any or all physicians, residents, or medical students *** are NOT AGENTS
OR EMPLOYEES OF THE HOSPITAL” requires some parsing. The construction “any or all X
are not Y” is not the clearest phrasing when contrasted with something unambiguous like “no X is
a Y.” See Hammer v. Barth, 2016 IL App (1st) 143066, ¶¶ 5, 24 (a consent form stating “ ‘I
acknowledge and fully understand that some or all of the physicians who provide medical services
to me at the hospital are not employees or agents of the hospital’ ” was found to be “ambiguous in
that one could assume that some or all or none of the treating physicians are independent
contractors, and that independent physicians may or may not include cardiologists”). Even a detail-
oriented PhD like Marilyn may well have trouble parsing St. Alexius’s language as it intended—
that no physicians at St. Alexius are its agents or employees, rather than that some are not—while
in severe pelvic pain and being told “to sign here, here, here.”
¶ 89 The second flaw is that, assuming arguendo that Marilyn knew that no physician providing
her service at St. Alexius was its employee or agent, it does not follow that she knew that the
service of interpreting scans and tests performed in the St. Alexius emergency room would be
provided by physicians. As recited above, it is unlikely that a patient who signs a release form can
reasonably believe that her treating physicians, with whom she comes in contact, are employees
or agents of the hospital when the form states otherwise. However, a patient may not realize in
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reading and signing such a form that the service of interpreting test results, a radiological reading
as the Gilbert court tellingly stated, was treatment that would be performed by a physician. In other
words, a patient such as Marilyn may not recognize Chung as a treating physician or a physician
who provided her service as the consent form put it. Instead, such a patient may recognize such an
unseen service provider as an anonymous functionary in, as the Gilbert court described, the
medical support services provided as part of the complete emergency care at St. Alexius. The fact
that we and the jury know with hindsight from the entire trial evidence that Marilyn’s ultrasound
was interpreted by physician Chung does not determine what Marilyn knew when she signed the
consent form and medical services were provided to her at St. Alexius.
¶ 90 We find a significant probability that the jury, presented with all the trial evidence and
instructed to focus on whether Marilyn knew or should have known that Chung was not an
employee of St. Alexius, would unduly under weigh what Marilyn knew and the limitations of
what the consent form would inform her and unduly overweigh the evidence that her ultrasound
was interpreted by Chung, a physician, who testified to not being an employee of St. Alexius. In
sum, we find that the failure to modify IPI Civil No. 105.10 as requested by plaintiff was reversible
error.
¶ 91 D. Two-Issue Rule
¶ 92 We have found reversible error on the preceding three contentions. However, defendants
contend that the two-issue rule precludes plaintiff from establishing reversible error. The two-issue
or general verdict rule provides that a general verdict for the plaintiffs or the defendants without
special interrogatories will not be disturbed if the case involved two or more determinative issues,
or two or more theories were presented, and there was sufficient evidence to support at least one
of the issues or theories that was free from prejudicial error. Obermeier v. Northwestern Memorial
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Hospital, 2019 IL App (1st) 170553, ¶ 51; Arient v. Alhaj-Hussein, 2017 IL App (1st) 162369,
¶ 44. Here, defendants contend that the rule applies here because the verdict in favor of Chung
may well have hinged on proximate causation rather than whether Chung breached the standard of
care, while all of plaintiff’s contentions regarding Chung concern standard of care.
¶ 93 Plaintiff responds by correctly noting that the jury was duly instructed to first determine
whether Dr. Chung was negligent before reaching the issue of proximate causation. We find a
significant probability that the errors regarding Chung’s negligence caused the jury to not reach
proximate causation at all. We therefore will not apply the two-issue or general verdict rule here.
¶ 94 E. Manifest Weight of the Evidence
¶ 95 Having found reversible error in the trial here based on the preceding contentions, we are
remanding this case for a new trial against both Chung and St. Alexius. Because of the prejudicial
errors in the trial itself, we need not address plaintiff’s contention that the verdict in favor of St.
Alexius regarding apparent agency was against the manifest weight of the evidence. Our usual
deference to a jury’s verdicts does not extend to a trial with reversible errors such as this one.
¶ 96 F. Actual Agency Instruction
¶ 97 Plaintiff contends that the trial court did not give a jury instruction based on IPI Civil No.
50.10 as he requested. Noting that IPI Civil No. 50.10 defines the words “agent” and “independent
contractor,” he contends that an important issue at trial was whether Chung was an independent
contractor or agent and that the jury needed an instruction defining these terms. We shall address
this contention in detail because it could arise again in a new trial following remand.
¶ 98 St. Alexius responds that plaintiff never pled an actual agency claim, that IPI Civil No.
50.10 is an actual agency instruction, and thus that the court’s refusal to give it was proper. St.
Alexius also argues that plaintiff failed to prove that an actual agency relationship existed. In
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plaintiff’s reply, he does not dispute that he failed to plead a claim based on actual agency or that
he proved that an actual agency relationship existed.
¶ 99 IPI Civil No. 50.10 states:
“The question has been raised whether at the time of the occurrence [alleged agent’s
name] was the agent of the defendant [defendant’s name] or was an independent contractor.
An agent is a person who by agreement with another, called the principal, represents the
principal in dealings with third persons or transacts some other business, manages some
affair, or does some service for the principal, with or without compensation. The agreement
may be oral or written, express or implied. [The term ‘agent’ is broader than either ‘servant’
or ‘employee.’ A servant or employee is an agent, but one may be an agent although he is
neither servant nor employee.]
[If you find that one person has the right to control the actions of another at a given
time, you may find that the relation of principal and agent exists, even though the right to
control may not have been exercised.]
An independent contractor is one who undertakes a specific job where the person
who engages him does not have the right [to discharge him] [or] [to direct and control the
method and manner of doing the work].
In determining whether at the time of the occurrence [alleged agent’s name] was
the agent of the defendant [defendant’s name] or was an independent contractor, you may
also consider [the method of payment;] [the right to discharge;] [the skill required in the
work to be done;] [who provides tools, materials or equipment;] [whether the worker’s
occupation is related to that of the employer;] [whether the employer deducted for
withholding tax;] [and] [other relevant factor(s)].
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The principal is liable to third persons for the negligence of his agent in the
transaction of the business of the principal, if the agent himself is liable. But one who
engages an independent contractor is not liable to others for the negligence of the
contractor.”
¶ 100 We review a trial court’s decision on whether to give a jury instruction under the abuse of
discretion standard. Blockmon v. McClellan, 2019 IL App (1st) 180420, ¶ 41. A court’s refusal to
give an instruction results in a new trial only if the party “shows serious prejudice to the party’s
right to a fair trial.” Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 777 (1998).
¶ 101 Here, plaintiff’s theory against St. Alexius was based on apparent agency, as plaintiff’s
counsel acknowledged at trial. During the discussion on IPI Civil No. 50.10, plaintiff’s counsel
stated: “the count is pled apparent agency, although there are two paragraphs in the count that
makes the allegation ‘agent,’ but it’s an apparent agency count.” As previously discussed, the trial
court gave IPI Civil No. 105.10, the instruction for apparent agency claims. Plaintiff has not cited
any authority to support that IPI Civil No. 50.10, an actual agency instruction as we explain below,
should also be given for claims based on apparent agency.
¶ 102 The first sentence of IPI Civil No. 50.10 sets forth that it is given when a question has been
raised regarding whether the “alleged agent” was an “agent or independent contractor,” as it states:
“The question has been raised whether at the time of the occurrence [alleged agent’s name] was
the agent of the defendant [defendant’s name] or was an independent contractor.” Further, we have
held that IPI Civil No. 50.10 “provides the factors by which a jury can determine whether a
principal-agent relationship existed” (Dahan, 295 Ill. App. 3d at 777), which is the first element
of actual agency (Hammer, 2016 IL App (1st) 143066, ¶ 15). IPI Civil No. 50.10 also instructs a
jury that it may find an agent-principal relationship existed if it finds that “one person has the right
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to control the actions of another at a given time.” However, an apparent agency claim is not based
on whether there was a principal-agent relationship but whether the hospital or alleged agent acted
in a manner to lead a reasonable person to concluded that the physician was an employee or agent
and the acts of the agent created an apparent of authority. See York, 222 Ill. 2d at 179 (setting forth
the elements of an apparent agency claim). Accordingly, IPI Civil No. 50.10 taken as a whole
contains instructions for evaluating claims of actual agency.
¶ 103 As plaintiff did not raise an actual agency claim and IPI Civil No. 50.10 is an actual agency
instruction, we cannot find that the court abused its discretion by refusing to give IPI Civil No.
50.10.
¶ 104 G. Remaining Issues
¶ 105 We shall briefly address the remaining contentions of error. Firstly, because we are
remanding for a new trial, we need not address plaintiff’s contention that a new trial is necessary
because the cumulative effect of the trial errors deprived him of a fair trial.
¶ 106 Secondly, we need not address plaintiff’s contention that the trial court erred by allowing
Bova to rely on undisclosed sagittal CT images during his testimony over plaintiff’s objection that
defendants violated Illinois Supreme Court Rule 237 (eff. Jul. 1, 2005) and Illinois Supreme Court
Rule 213(i) (eff. Jan. 1, 2018). This contention, based on an alleged failure in timely discovery
disclosure, is unlikely to recur in a new trial.
¶ 107 Lastly, plaintiff contends that the trial court erred by striking his contempt petition against
Chung and by denying him leave to amend his posttrial motion.
¶ 108 Plaintiff’s contempt petition and requested amendment to his posttrial motion alleged that
Chung gave inconsistent testimony in this trial and in a subsequent trial in an unrelated case.
Specifically, Chung testified in the May 2018 trial here that he does not “ever look at or use” the
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ultrasound requisition form in interpreting scans, while he allegedly testified in the other trial in
July 2018 that he will “look and see how old the patient is and also what exam is being ordered,
and then, as well, I’ll look at what history is provided.”
¶ 109 Chung responds that plaintiff forfeited this contention because his brief failed to comply
with Illinois Supreme Court Rule 341(h) (eff. May 25, 2018). He argues that plaintiff made
conclusory claims and underdeveloped arguments without citation to relevant authority. The
content and format of appellate briefs are governed by Rule 341(h), providing that an appellant
must “present reasoned argument and citation to legal authority and to specific portions of the
record in support of his claim of error.” McCann v. Dart, 2015 IL App (1st) 141291, ¶ 15. An issue
that is not clearly defined and sufficiently presented, and thus does not satisfy Rule 341(h), is
forfeited. Atlas v. Mayer Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33. Upon reviewing
the briefs, we find that plaintiff has indeed failed to provide reasoned and legally supported
argument regarding his contempt petition against Chung, but we find sufficiently reasoned and
supported argument on the broader question of Chung’s allegedly inconsistent testimony to not
find the broader contention forfeited.
¶ 110 However, while plaintiff has not waived that portion of his contention, the fact that we are
remanding for a new trial means that we need not consider plaintiff’s contention regarding
amending his posttrial motion. We do not address the substance of whether the particular testimony
in this case and the unrelated case are contradictory as alleged, or whether Chung’s testimony in
the unrelated case is admissible here, but leave it for the trial court to decide in the course of
litigation following remand if the issue is presented again.
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¶ 111 IV. CONCLUSION
¶ 112 Accordingly, the judgment in favor of Chung and St. Alexius is vacated, and this case is
remanded for a new trial regarding both defendants.
¶ 113 Vacated and remanded.
¶ 114 JUSTICE CONNORS, dissenting:
¶ 115 I respectfully dissent. The jury’s finding that Chung was not the apparent agent of St.
Alexius was not against the manifest weight of the evidence. The trial court did not commit
reversible error with respect to its evidentiary rulings.
¶ 116 A. Chung’s Initial Rule 213(f)(3) Disclosure
¶ 117 The trial court did not commit reversible error when it barred plaintiff from using
Chung’s initial Rule 213(f) disclosure during Chung’s testimony.
¶ 118 As an initial matter, I disagree with the majority that plaintiff preserved his argument
despite his failure to make an offer of proof. Plaintiff’s counsel acknowledged at trial that he
needed to make an offer of proof. During a sidebar discussion on the Rule 213(f)(3) issue,
plaintiff’s counsel objected to the court’s refusal to allow Chung to read the initial Rule 213(f)(3)
disclosure during Chung’s cross-examination and then his other counsel stated to the court: “We
might still—I don’t know—at some point need an offer of proof opportunity. Not today. I mean
…” The court responded, “[w]henever you want. Whenever you want.” However, the record does
not show that plaintiff ever made an offer of proof. Further, on appeal, plaintiff does not argue that
he ever made one, and plaintiff’s counsel acknowledged at oral argument that there was no offer
of proof made. Because plaintiff did not make an offer of proof, I find that the issue is forfeited.
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¶ 119 The trial court did not have all the evidence it needed to make its evidentiary ruling
because an offer of proof could have addressed the concerns that the trial court had about waiving
the attorney client privilege. As the majority discussed, the court was concerned about waiving the
attorney client privilege because the issue here involved a party expert’s Rule 213(f)(3) disclosure
signed by the party’s attorney as opposed to a nonparty expert disclosure signed by an attorney.
During the first sidebar discussion in Chung’s adverse examination regarding Chung’s initial Rule
213(f)(3) disclosure, the court noted that it was not comfortable “with you getting into any
discussion that may have occurred between the attorney and the client” and that it was concerned
about issues with the initial disclosure and the attorney client privilege. If counsel had provided an
offer of proof, counsel could have demonstrated how his questions would not have violated the
attorney client privilege and the court could have determined whether it had valid concerns that
counsel’s examination would interfere with the attorney client privilege.
¶ 120 Nevertheless, even if I would agree with the majority and find that plaintiff’s argument
was not forfeited, I would not find that reversible error occurred. We will not disturb a judgment
when “it appears an error did not affect the outcome of the trial” or where we “can see from the
entire record that no harm has been done.” Jackson v. Pellerano, 210 Ill. App. 3d 464, 471 (1991).
“An incorrect evidentiary ruling does not warrant reversal unless the error materially affected the
outcome of the trial.” Karn v. Aspen Commercial Painting, Inc., 2019 IL App (1st) 173194, ¶ 19.
It was plaintiff’s burden to establish prejudice. Jackson, 210 Ill. App. 3d at 471.
¶ 121 Based on my review of the record, I would conclude that the trial court’s ruling on
Chung’s initial Rule 213(f)(3) disclosure did not affect the outcome of the trial. Plaintiff therefore
has not established prejudice. Although plaintiff’s counsel was not permitted to examine Chung
with his initial Rule 213(f)(3) disclosure during Chung’s adverse examination, the jury
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nevertheless heard the content of Chung’s initial disclosure at various times during trial. In fact,
during the testimony of defendants’ expert, plaintiff’s counsel read Chung’s initial Rule 213(f)(3)
disclosure to the jury verbatim:
“Q. Fourth paragraph: ‘Dr. Chung will further testify that based on his custom and
practice, he would have reviewed the CT scan and reports from August 11, 2012, and would
have been aware of Dr. Gullo’s finding of the teratoma. Further, he will testify that it was
also his custom and practice to compare the ultrasound to the CT at that time. He will testify
that even though the report states there was no comparison, it was his custom and practice
to compare the films and likely did so in 2012.’ Did I read that correctly?
A. Yes, sir.”
¶ 122 Further, during Chung’s testimony, plaintiff’s counsel played a video of Chung’s
discovery deposition testimony, which was similar to Chung’s initial Rule 213(f)(3) disclosure, as
he testified in his discovery deposition that he knew about the teratoma when he was reviewing
the ultrasound. The video, which was played at trial two times, contained the following colloquy
from Chung’s discovery deposition:
“Q. So when you were looking at these images of this ultrasound, were you doing so
with the teratoma in mind that you knew was identified on the CT from two hours earlier?
A. Well, to answer the question, yes, but that’s not the only thing I’d be concerned
about or looking at or trying to evaluate.” 1
In addition, during plaintiff’s closing argument, plaintiff’s counsel argued about Chung’s initial
Rule 213(f)(3) disclosure, stating:
1
The record shows that after the deposition testimony was played one time on the videotape,
plaintiff’s counsel asked “Can we get it louder? Let’s start it over.” The videotape with the deposition
testimony was then played a second time.
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“Those were his 213 disclosures after his deposition. Custom and practice, he would
have reviewed the CT scan and reports from August 11, 2012, and would have been aware
of Dr. Gullo’s findings of the teratoma. It was also his custom and practice to compare the
ultrasound to the CT at that time.”
Accordingly, even though plaintiff’s counsel did not examine Chung on his initial Rule 213(f)(3)
disclosure, the jury heard the content of Chung’s initial disclosure at trial multiple times, and I am
unpersuaded by plaintiff’s assertion that the court allowed defendants to “hide” from the jury
Chung’s admission in his initial disclosure that he had been aware of the teratoma when he
reviewed the ultrasound. Plaintiff has therefore failed to demonstrate that the jury’s verdict would
have been different had the trial court allowed him to examine Chung about Chung’s initial
disclosure.
¶ 123 B. ACR Practice Guideline
¶ 124 Further, I would find that no error occurred when the trial court barred plaintiff from
cross-examining Chung—who had never been a member of ACR—about the ACR practice
guideline.
¶ 125 Decisions on the admission of evidence will not be disturbed absent an abuse of
discretion. A trial court’s evidentiary ruling is considered an abuse of discretion when it is
arbitrary, fanciful, or unreasonable. People v. Irwin, 2017 IL App (1st) 150054, ¶ 27. We may only
find an abuse of discretion when no reasonable person would take the view adopted by the trial
court. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 452 (2004).
¶ 126 Initially, I note that the majority cites Fragogiannis v. Sisters of St. Francis Health
Services, Inc., 2015 IL App (1st) 141788, ¶ 27, for the proposition that a “learned text” can be used
for impeachment on cross-examination if the witness concedes the author’s competence, the court
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No. 1-18-1887
takes judicial notice of the authors’ competence, or “the cross-examiner proves the author’s
competence by a witness with expertise in the subject matter.” However, here, this case did not
involve a learned text or treatise that would satisfy the requirements of Fragogiannis.
¶ 127 The court did not take judicial notice of the author’s competence. And plaintiff did not
prove through Gore’s testimony that the guideline was authoritative. I acknowledge that Gore
testified that the guideline was a “good source” of information for diagnostic radiologists regarding
communication of diagnostic imaging findings and that it was “just a good, safe, prudent medical
practice.” However, Gore also testified that the guideline did not represent inflexible rules, was
not intended to establish a legal standard of care, and that the guideline’s preamble cautioned
against using the guideline in litigation. Further, although Gore testified that the guideline
supported his opinions, he also testified that he did not rely on it and that it was not the basis for
his opinion.
¶ 128 Cross-examining Chung would not have added value and plaintiff was not prejudiced
when the court did not allow him to do so. The court allowed the jury to hear testimony about the
standard of care provided in the guideline at various times during trial. In plaintiff’s opening
argument, over defense counsel’s objection, plaintiff’s counsel informed the jury that the ACR
“has practice guidelines,” which stated that “radiologists should compare examinations and reports
when they’re relevant and available.” Then, during Gore’s testimony, Gore expressly read the
guideline to the jury and testified about it as follows:
“The guideline says that if you’ve got an old exam of the same body part, you know,
it’s your duty to the patient to compare your current exam with the older exam if it’s
available and the same body part. And that’s just good medical practice, you know,
irrespective of what this guideline says.”
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Further, during plaintiff’s cross-examination of defendant’s expert, Dr. Bova, plaintiff’s counsel
asked whether he was familiar with the “guideline that’s been talked about.” After Bova
acknowledged he was familiar with it, counsel asked him, “You’re familiar with relevant
examinations and reports should be part of the radiologic consultation and report when appropriate
and available. Do you agree with that?” Bova responded, “When appropriate and available I think
is the key. Yes.” Accordingly, the jury heard about the standard of care provided in the guideline
several times during trial and plaintiff was not prejudiced by being unable to cross-examine Chung
about it.
¶ 129 Because plaintiff’s own expert testified that the guideline cautioned against its use in
litigation and that it did not establish a standard of care and the jury heard about the standard of
care provided in the guideline at multiple times during trial, I would find no reversible error
occurred when the trial court did not allow plaintiff to cross-examine Chung about the guideline.
¶ 130 C. Apparent Agency Instruction
¶ 131 I would also find that no error occurred when the trial court refused plaintiff’s modified
jury instruction for IPI Civil No. 105.10. The pattern jury instruction that was given adequately
instructed the jury on the burden of proof for plaintiff’s apparent agency claim.
¶ 132 The trial court gave the instruction for IPI Civil No. 105.10 that was in effect at the
time of trial and that had been in effect since 2003. That the instruction was revised in 2019 does
not necessarily mean that the instruction was incorrect in 2018. Neither the majority nor plaintiff
has cited any authority to support that the instruction in effect at the time of trial incorrectly stated
the law. Under Illinois Supreme Court Rule 239(a) (eff. Apr. 8, 2013), the trial court here was
required to use the IPI instruction that was in effect, unless it determined that it did not accurately
state the law.
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¶ 133 Nevertheless, even if the instruction inaccurately stated the law because it did not
include the words “or agent,” the instruction did not clearly mislead the jury or prejudice plaintiff.
Doe v. Bridgeforth, 2018 IL App (1st) 170182, ¶ 66 (a reviewing court will not generally reverse
a trial court for giving incorrect jury instructions unless they “clearly misled the jury and resulted
in prejudice” (internal quotation marks omitted)).
¶ 134 As discussed by the majority, in a medical malpractice context, a hospital’s liability is
based on whether the patient is placed on notice of the “independent status of the medical
professionals with whom he or she might be expected to come into contact.” York v. Rush-
Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 202 (2006). Under the “holding out”
factor in an apparent agency claim, if a patient “is placed on notice ***, it would be unreasonable
for a patient to assume that these individuals are employed by the hospital.” Id. Thus, the jury had
to determine whether Marilyn knew about Chung’s independent status and that he was not
employed by St. Alexius. See Butkiewicz v. Loyola University Medical Center, 311 Ill. App. 3d
508, 512 (2000) (stating that, under Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,
(1993), the first relevant inquiry is whether the patient knew that the physician was not employed
by the hospital). Given that the focus of an apparent agency claim in the medical malpractice
context is on the independent status of the medical professional, I cannot find that the instruction
that only included the word “employee” rather than “employee or agent” clearly mislead the jury
in what it had to determine in order to conclude that Chung was not the apparent agent of St.
Alexius, i.e., whether Chung was independent of St. Alexius.
¶ 135 Any shortcomings related to the consent form do not change my conclusion. The
consent form, which Marilyn signed, was presented clearly. The form contained bold print and
capital letters expressly indicating Chung’s independent status: “INDEPENDENT STATUS OF
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PHYSICIANS: I recognize that any or all physicians, residents, or medical students (under the
supervision of physicians and/or residents), who furnish services to me during this admission are
INDEPENDENT CONTRACTORS and are NOT AGENTS OR EMPLOYEES OF THE
HOSPITAL.” (Emphasis in original.) This provision is separated from the other paragraphs on the
form and the bold and capital letters make it plainly visible. Based on the express and clear
language of the consent form, the jury could have reasonably concluded that Marilyn was placed
on notice of Chung’s independent status and that it would have been unreasonable for her to
assume that he was an employee or agent of St. Alexius. See Wallace v. Alexian Brothers Medical
Center, 389 Ill. App. 3d 1081, 1088 (2009) (affirming summary judgment in favor of the hospital,
and noting that the plaintiff “signed a consent form that clearly indicated that defendant contracted
with independent physicians to provide services to patients” and that the physicians’ status was
“ ‘clearly set out’ ”).
¶ 136 In addition, there was no evidence that St. Alexius did anything to make Marilyn or
Jesse believe that Chung was an employee or agent of St. Alexius or that they had inquired about
whether any physicians were agents or employees of St. Alexius. See Mizyed v. Palos Community
Hospital, 2016 IL App (1st) 142790, ¶ 56 (affirming summary judgment for the hospital based on
an independent contractor disclaimer in a consent form and noting that there was no other evidence
to support the “holding out” element, i.e., no evidence showing that the plaintiff or his daughter
had inquired, or that anyone had told them, whether any physicians were employees or agents of
the hospital); Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) 121835, ¶¶ 5, 20-21
(affirming summary judgment for the hospital based on a disclaimer in a signed consent form
coupled with no evidence showing that the hospital did anything to make the plaintiff believe the
physician was the hospital’s employee). Moreover, the evidence showed that Marilyn was highly
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educated, and there is no evidence suggesting she expressed any confusion, did not understand the
consent form, or that she asked questions about the form.
¶ 137 The majority asserts that even a detail-oriented PhD like Marilyn may have trouble
“parsing” the language in the consent form while in severe pain when she was being told to “sign
here, here, here.” However, this court has previously stated that “one who signs a document is
charged with knowledge of its contents, regardless of whether he or she actually read the
document” (Mizyed, 2016 IL App (1st) 142790, ¶ 54) and that pain is not an excuse from reading
the form before signing it (Frezados, 2013 IL App (1st) 121835, ¶ 24). Further, the act of legally
signing a document signifies that the person had the opportunity to become familiar and
comprehend its terms. Mizyed, 2016 IL App (1st) 142790, ¶ 54. In addition, immediately above
the signature line and below the independent status disclaimer provision, the form states: “This
form has been fully explained to me and I clarify that I understand and accept its contents, except
as noted,” from which the jury could reasonably conclude that Marilyn was placed on notice of
the contents of the consent form.
¶ 138 Hammer v. Barth, 2016 IL App (1st) 143066, relied on by the majority is
distinguishable. There, the consent form stated: “ ‘I acknowledge and fully understand that some
or all of the physicians who provide medical services to me at the hospital are not employees or
agents of the hospital’ ” and “[n]on-employed physicians may include, but are not limited to, those
practicing emergency medicine, trauma, cardiology, obstetrics, surgery, radiology, anesthesia,
pathology and other specialties.” Id. ¶ 5. The court found the disclaimer was ambiguous because
“one could assume that some or all or none of the treating physicians are independent contractors,
and that independent physicians may or may not include cardiologists.” Id. ¶ 24.
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¶ 139 Of note, Hammer was an appeal from a grant of summary judgment and found that
there remained a question of fact that warranted reversal. Here, the jury decided the apparent
agency issue based on all of the evidence presented, including the consent form and testimony that
Chung was an employee of Midsuburban Radiological Associates, LLC, and St. Alexius did not
hire and could not fire Chung and did not control his practice. Moreover, the “any or all” language
here is not the same as the “some or all” language that Hammer found ambiguous. Neither the
majority nor plaintiff have cited any authority finding the “any or all” language is ambiguous or
that the “any” word in the provision is reasonably interpreted to exclude certain physicians.
¶ 140 Accordingly, the evidence presented to the jury, including the consent form, was
sufficient for the jury to conclude that Marilyn was placed on notice of the independent status of
Chung and that he was therefore neither an employee nor agent of St. Alexius. The IPI Civil No.
105.10 instruction that was given, and that only included the word “employee,” was not misleading
to the jury. I would also find that the consent form presented to Marilyn was not ambiguous or
inadequate to convey that Chung was independent of St. Alexius.
¶ 141 D. Unaddressed Issues by the Majority
¶ 142 1. Manifest Weight of the Evidence
¶ 143 Although the majority did not address the jury’s apparent agency finding, I will do so
because I find no reversible errors occurred. As the majority discussed, for a hospital to be liable
under the apparent agency theory, a plaintiff must prove (1) the hospital, or its agent, acted in a
manner that would lead a reasonable person to conclude that the alleged negligent physician was
an employee or agent of the hospital; (2) where the acts of the agent created the appearance of
authority, “the plaintiff must also prove that the hospital had knowledge of and acquiesced in
them”; and (3) “the plaintiff acted in reliance upon the conduct of the hospital or its agent.”
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(Internal quotation marks omitted.) Gilbert, 156 Ill. 2d at 525. Under the “holding out” factor, “if
a patient is placed on notice of the independent status of the medical professionals with whom he
or she might be expected to come into contact, it would be unreasonable for a patient to assume
that these individuals are employed by the hospital.” York, 222 Ill. 2d at 202. An important factor
is whether a patient signed a consent form that contained unambiguous independent status
disclaimer language. Mizyed, 2016 IL App (1st) 142790, ¶ 40.
¶ 144 A verdict is against the manifest weight of the evidence when the opposite conclusion
is clearly evident or when the jury’s finding was unreasonable, arbitrary, and not based on the
evidence. Bowman v. University of Chicago Hospitals, 366 Ill. App. 3d 577, 584-85 (2006). It is
the jury’s responsibility to resolve conflicts in the evidence, determine the credibility of witnesses,
and decide the weight to be given to the witnesses’ testimony. Lisowski v. MacNeal Memorial
Hospital Ass’n, 381 Ill. App. 3d 275, 282 (2008). As a reviewing court, we may not reweigh the
evidence or substitute our judgment for that of the jury. Bowman, 366 Ill. App. 3d at 585.
¶ 145 The jury’s finding that Chung was not the apparent agent of St. Alexius was not against
the manifest weight of the evidence. As I discussed above, the evidence was sufficient for the jury
to conclude that Marilyn was placed on notice of Chung’s independent status and that he was not
an employee or agent of St. Alexius. Thus, the jury’s finding that Chung was not the apparent
agent of St. Alexius was not unreasonable or arbitrary and, therefore, was not against the manifest
weight of the evidence. We may not reweigh the evidence or substitute our judgment for that of
the jury.
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¶ 146 2. Dr. Bova and Sagittal CT Images
¶ 147 I will address plaintiff’s argument related to Bova relying on undisclosed CT images
over plaintiff’s objection that defendants violated Rules 237 and 213(i) because I find that no
reversible errors occurred.
¶ 148 Rule 237(b) states:
“The appearance at the trial or other evidentiary hearing of a party *** may be required by
serving the party with a notice designating the person who is required to appear. The notice
also may require the production at the trial or other evidentiary hearing of the originals of
those documents or tangible things previously produced during discovery.” Ill. S. Ct. R.
237(b) (eff. Jul. 1, 2005).
Plaintiff asserts that he served attorneys for Chung and St. Alexius notices pursuant to Rule 237
about two months before trial and requested production of all demonstrative exhibits before the
start of trial. He argues that defendants violated Rule 237 because St. Alexius did not produce
Bova’s PowerPoint slide, which included sagittal images created from Marilyn’s actual CT
images, until the morning of Bova’s testimony.
¶ 149 With respect to plaintiff’s argument that defendants violated Rule 213(i), this rule
requires a party “to seasonably supplement or amend any prior answer or response whenever new
or additional information subsequently becomes known to that party.” Ill. S. Ct. R. 213(i) (eff. Jan.
1, 2018). Plaintiff claims that defendants violated Rule 213(i) because Bova created new CT
images that no one had seen until the last day of trial and Bova relied on these images as a basis
for his testimony that the teratoma was not within the field of view of the ultrasound.
¶ 150 Initially, defendants assert that plaintiff forfeited the issue because he failed to make a
contemporaneous objection during Bova’s testimony. Defendants assert that plaintiff did not
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object until Bova finished his testimony about the sagittal CT images. To preserve a claim for
review, an objection must be contemporaneous with the objectionable conduct. York v. El-
Ganzouri, 353 Ill. App. 3d 1, 17 (2004). Here, the record shows that St. Alexius’s counsel asked
Bova numerous questions about the sagittal CT images before plaintiff objected based on Rule
213. Thus, plaintiff failed to make a timely contemporaneous objection and forfeited his challenge.
See id. at 17-18 (concluding that the defendant forfeited his challenge by failing to make a timely
objection, noting that “multiple references” to the objectionable testimony went unchallenged
before the objection was made).
¶ 151 However, even if plaintiff properly preserved his claim, I would find that the trial court
properly allowed Bova to testify about the sagittal CT images over plaintiff’s objections that they
were not timely disclosed or included in Bova’s Rule 213(f) disclosure.
¶ 152 Here, the trial court allowed Bova to testify about the images, finding that the exhibits
were demonstrative. Demonstrative evidence serves as a visual aid to the jury in comprehending
the verbal testimony of a witness. Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 341
(1991). Demonstrative evidence is looked upon favorably by the courts because it allows the fact
finder “to have the best possible understanding of the matters before it.” Sharbono v. Hilborn,
2014 IL App (3d) 120597, ¶ 30. “The primary considerations in determining whether
demonstrative evidence is admissible or may be used at trial are relevancy and fairness.” Yanello
v. Park Family Dental, 2017 IL App (3d) 140926, ¶ 31. With respect to relevancy, to be admissible,
the evidence “must actually be used to illustrate or explain the verbal testimony of a witness as to
a matter that is relevant.” (Internal quotation marks omitted.) Id. With respect to fairness,
demonstrative evidence may still be excluded by the trial court if “ ‘its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
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the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.’ ” Id. (quoting Ill. R. Evid. 403 (eff. Jan. 1, 2011)). The admission of an exhibit as
demonstrative evidence is within the sound discretion of the trial court. Kayman v. Rasheed, 2015
IL App (1st) 132631, ¶ 66. A trial court abuses its discretion when the ruling is arbitrary, fanciful,
or unreasonable or when no reasonable person would take the same view. Id.¶ 153 Bova’s Rule 213(f) disclosure stated that Bova would testify “to the tissues structures,
vessels, and organs visualized by differing forms of medical imaging (plain film, US, MRI, CT,
etc.). He will testify to the limitations in visualizing various tissues, structures, vessels and organs
with differing forms of medical imaging.” (Emphasis added.) Bova’s Rule 213(f) disclosure also
stated:
“Dr. Bova will opine that reasonable careful radiologist would not have been able to
identify a teratoma on [Marilyn’s] August 11, 2012, ultrasound. Even viewing the August
11, 2012, ultrasound retrospectively with knowledge of the teratoma based on the CT
findings, no teratoma can be clearly seen on the ultrasound. Despite the presence of the
teratoma on the August 11, 2012, CT, its absence on the August 11, 2012, ultrasound may
be explained for one of two reasons. *** Either the teratoma was outside the field of view
of the ultrasound or the teratoma was unable to be viewed by the less sensitive ultrasound
technology due to fecal matter or gas within the bowel obscuring the teratoma.” (Emphasis
added.)
At trial, Bova testified that the teratoma was located outside the field of view of the ultrasound,
which was a subject identified in his Rule 213(f) disclosure stated above. He also testified that the
teratoma was “was big enough that it pushed itself outside of the pelvis, and, therefore, was never
in the field of view.” Bova used CT images, including the sagittal views that he created from
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Marilyn’s actual CT images, to explain this verbal testimony that the teratoma was located outside
the field of view of the ultrasound. Accordingly, I would not find that trial court’s decision to allow
Bova to testify about the sagittal images because they were demonstrative was arbitrary or
unreasonable.
¶ 154 In addition, the trial court instructed the jury that the images were not evidence. The
court stated: “the jury are cautioned that this is not evidence in this case, *** They’re just
showing—using this as demonstrative evidence, and it can only be used by the witness to explain
his testimony.” Finally, plaintiff was not prejudiced by Bova’s use of the sagittal images to explain
that the teratoma was located outside the view of the ultrasound. A disputed issue at trial regarding
the standard of care was whether the standard of care required Chung to look at the CT report when
he was reviewing the ultrasound and whether it required him to include the finding of the teratoma
and CT report in his ultrasound report. Plaintiff’s counsel conceded during closing argument that
the issue was not whether Chung should have seen the teratoma on the ultrasound report, as he
stated during closing argument: “Did you hear anyone on our side say that Dr. Chung should have
seen the teratoma on the ultrasound? No. Ovaries show up on ultrasound, teratomas show up on
CTs. *** So no one is saying that Dr. Chung should have looked at the ultrasound and seen the
teratoma.” Thus, plaintiff was not prejudiced when Bova used the sagittal images to aid the jury
in understanding his testimony that the teratoma was located outside the field of view of the
ultrasound.
¶ 155 Accordingly, the trial court did not abuse its discretion when it allowed Bova to testify
about the sagittal CT images.
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¶ 156 E. Actual Agency Instruction
¶ 157 I agree with the majority that the trial court did not abuse its discretion when it refused
to give IPI Civil No. 50.10, the instruction for an actual agency claim.
¶ 158 F. Plaintiff’s Contempt Petition Against Chung
¶ 159 I agree with the majority that plaintiff failed to set forth well-reasoned arguments with
relevant and persuasive legal authority supporting how the trial court erred when it dismissed his
contempt petition against Chung and so forfeited the issue. See Ill. S. Ct. R. 341(h)(7) (eff. May
25, 2018). Thus, I would find that plaintiff’s arguments with respect to his contempt petition
against Chung are forfeited because he failed to comply with Rule 341. See Atlas v. Mayer
Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33 (“An issue not clearly defined and
sufficiently presented fails to satisfy the requirements of Rule 341(h)(7) and is, therefore,
forfeited.”).
¶ 160 G. Two-Issue Rule
¶ 161 Finally, I disagree with the majority’s conclusion that the two-issue rule does not apply.
Under the two-issue rule, a “ ‘general verdict rendered by the jury creates a presumption that the
jury found in favor of [a defendant] on every defense raised’ [citation], as well as a presumption
that ‘all issues of fact upon which proof was offered were found in favor of the prevailing party’
[citation].” Obermeier v. Northwestern Memorial Hospital, 2019 IL App (1st) 170553, ¶ 51. Under
this rule, “we must presume that the jury found against plaintiff on every issue raised in the counts
that were before it.” Id.¶ 162 To prove negligence, plaintiff must prove (1) the standard of care against which the
medical professional’s conduct must be measured, (2) negligent failure to comply with that
standard, and (3) negligence proximately caused the injuries for which the plaintiff seeks redress.
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Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 292 (2008). Here, plaintiff’s arguments on appeal are
only relevant to the issue of Chung’s standard of care. The jury returned a general verdict form in
favor of Chung. Neither party submitted special interrogatories, so we cannot determine from the
jury’s general verdict whether any alleged errors in the court’s evidentiary rulings regarding the
standard of care affected the jury’s verdict. See Strino v. Premier Healthcare Associates, P.C., 365
Ill. App. 3d 895, 905 (2006) (“Because neither party submitted special interrogatories, we cannot
determine from the general verdict whether any error in the contributory negligence instruction
affected the verdict.”). We therefore must presume that the jury found in favor of defendants and
against plaintiff on every defense raised and on all issues of fact upon which proof was offered.
Based on my review of the record, there was sufficient evidence presented to the jury to support
that Chung was not the proximate cause of Marilyn’s death. Thus, because plaintiff did not assert
that any error occurred with respect to the issue of proximate causation, the evidence was sufficient
to show that Chung was not the proximate cause of Marilyn’s death, and we must presume the jury
found in favor of Chung with respect to proximate causation, I find that the two-issue rule applies
and would affirm the jury’s verdict even if the court erred in its evidentiary rulings regarding the
standard of care.
¶ 163 Finally, I note that, because I would conclude that the jury’s finding that Chung was
not the apparent agent of St. Alexius was not against the manifest weight of the evidence and
because there was no reversible error with respect to the agency instructions, I would affirm the
jury’s finding with respect to St. Alexius on these bases alone, as the other evidentiary issues
plaintiff raised only pertained to Chung. Thus, with respect to St. Alexius, I would affirm not only
based on the two-issue rule but also because there was no reversible error with the agency issues
plaintiff raised.
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No. 1-18-1887
¶ 164 Conclusion
¶ 165 For the reasons stated above, I respectfully dissent and would affirm the jury’s verdict.
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No. 1-18-1887
No. 1-18-1887
Cite as: Perez v. St. Alexius Medical Center, 2020 IL App (1st) 181887Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-L-10905;
the Hon. Edward S. Harmening, Judge, presiding.
Attorneys Robert S. Baizer, Joseph E. Kolar, and David A. Neiman,
for of Romanucci & Blandin, LLC, of Chicago, for appellant.
Appellant:
Attorneys Karen Kies DeGrand and Laura Coffey Ieremia, of Donohue
for Brown Mathewson & Smyth LLC, and Amy L. Anderson and
Appellee: Teresa R. Maher, of Brenner, Monroe, Scott & Anderson, Ltd.,
both of Chicago, for appellee Jeffrey E. Chung.
Hugh C. Griffin, David C. Hall, and Matthew J. Ennis, of
Hall Prangle & Schoonveld, LLC, of Chicago, for other appellee.
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