Auten v. Franklin

NO. 4-09-0541 Filed 10/6/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

DAWN AUTEN, f/k/a DAWN BARNETT, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) Sangamon County

CHRISTINE FRANKLIN, ) No. 05L19

Defendant, )

and )

LARRY NORD and CENTRAL ILLINOIS ) Honorable

ORTHOPEDIC SURGERY, S.C., ) John W. Belz,

Defendants-Appellants. ) Judge Presiding.

_________________________________________________________________

JUSTICE POPE delivered the opinion of the court:

Defendants, Dr. Larry Nord and Central Illinois Ortho-

pedic Surgery, S.C. (medical defendants), appeal from a jury

verdict in favor of plaintiff, Dawn Auten, resulting from inju-

ries plaintiff received from an automobile accident with defen-

dant, Christine Franklin, and the medical treatment given by the

medical defendants. Plaintiff's injuries included a right

forearm fracture and a dislocated right index finger. The

medical defendants contend (1) the trial court erred in giving

jury instructions failing to differentiate between the injuries

caused by Franklin and those caused by the medical defendants,

injecting insurance into the case, and confusing the jury on the

consideration to be given expert witness testimony; (2) the court

erred in limiting or denying evidence qualified radiologists were

not able to diagnose plaintiff's dislocated finger prior to the

medical defendants' failure to do so; and (3) errors occurred in

both opening statement and closing argument denying the medical

defendants a fair trial. Because the verdict form failed to

differentiate between the injury caused solely by Franklin to

plaintiff's forearm and the injury caused to the index finger for

which both Franklin and the medical defendants are liable, we

reverse.

I. BACKGROUND

On December 11, 2003, a vehicle driven by Franklin

collided with a vehicle driven by Timothy Auten in Springfield.

Plaintiff was a passenger in Auten's vehicle. Plaintiff was

injured and taken to the emergency department of Memorial Medical

Center (Memorial) in Springfield where she was seen by emergency-

room physician Dr. Ronald Pickett.

Dr. Pickett diagnosed a two-bone fracture of plain-

tiff's right forearm. Dr. Roger Haag, a clinical radiologist,

was asked to read an X ray of the front and lateral views of the

right forearm, verifying these fractures. He did so, finding

plaintiff had fractured the mid-portion of the right radius and

ulna. He saw no other fractures in the X rays of the forearm. A

specific X ray of plaintiff's hand was not taken at Memorial.

Plaintiff claimed she was in excruciating pain when her

right arm was raised by holding on to her index finger in order

to take the X rays. She reported she had braced for the impact

of the automobile accident using her right hand.

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Plaintiff was also seen at Memorial by orthopedic

surgeon Dr. Michael Watson and orthopedic resident Dr. Joseph

Norris. Dr. Watson gave plaintiff the choice of having her right

forearm fractures internally set by an orthopedic surgeon in

Bloomington since she lived there. Plaintiff chose to do that

and saw Dr. Larry Nord, a surgeon employed by Central Illinois

Orthopedic Surgery, S.C. Dr. Nord scheduled surgery for December

13, 2003.

On January 15, 2005, plaintiff filed suit against

Franklin, seeking to recover damages for injuries she suffered as

a result of the automobile accident. On April 5, 2006, plaintiff

filed an amended complaint, adding as defendants Dr. Pickett,

Midwest Emergency Department Specialists, Ltd., Dr. Norris,

Memorial Medical Center, Dr. Haag, Clinical Radiologists, S.C.,

Dr. Nord, and Central Illinois Orthopedic Surgery, S.C. Plain-

tiff alleged the newly added defendants failed to diagnose a

dislocated index finger. When the case proceeded to trial on

March 2, 2009, the remaining defendants were Franklin, Dr. Nord,

and Central Illinois Orthopedic Surgery, S.C.

Dr. Nord performed an open reduction internal fixation

on December 13, 2003, and advised plaintiff she may not get a

return of her radial nerve sensory function. He did not notice

anything unusual about plaintiff's index finger. Following her

surgery, Dr. William Cooley, a board-certified radiologist,

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reviewed postoperative X-ray film of plaintiff's right forearm

and right hand to determine if the surgery had resulted in

properly setting plaintiff's forearm bones. He reported it did.

Following the surgery, Dr. Nord saw plaintiff 13 times

for follow-up care. He testified he palpated her hand, including

her index finger, every time her cast was changed. Dr. Nord

stated plaintiff had kind of chubby hands and swelling on top of

that from the forearm fracture. It took six months for the

fractures to heal, and she had swelling in her hand the entire

time.

Dr. Nord testified he did not receive any specific

complaint of pain in plaintiff's right index finger. Even after

she started hand, wrist, and elbow motion exercises, plaintiff

did not make any complaints of pain in regard to her right index

finger. There are no notations in Dr. Nord's medical records in

regard to plaintiff indicating she made any complaints of pain.

Plaintiff insists she made complaints of hand and

finger pain regularly to Dr. Nord and other employees of Central

Illinois Orthopedic Surgery during the course of her treatment by

them.

On June 14, 2004, Stephanie Roberts, a licensed physi-

cal therapist employed by Neuro Ortho Rehab Center, an outpatient

physical therapy clinic, saw plaintiff for a physical-therapy

initial evaluation. Plaintiff had been referred by Dr. Nord.

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Plaintiff complained of an ache in the right wrist and fingers.

She stated she had no feeling in the right fingers and had

throbbing pain when she lay down. She also complained of pain in

the second metacarpal and finger and a bump at the second meta-

carpal (the index finger).

Roberts palpated plaintiff's right index finger and

discovered a "hard, bony-like protrusion *** at the distal first

metacarpal." (Roberts acknowledged the injury was actually at

the second metacarpal and she erroneously charted it as the

"first" metacarpal.) Roberts wrote in plaintiff's medical chart

the symptoms in regard to plaintiff's finger were the result of

the automobile accident in December 2003. This information was

related to her by plaintiff.

Plaintiff saw Roberts again on June 21, 2004, and at

that time complained of moderate tenderness as a result of

palpation at the second metacarpal. She was having increased

pain as her splint was hurting the first and second metacarpal

region and she requested to see Dr. Nord as soon as possible.

On June 26, 2004, a sagittal view computerized

tomography (CT) scan was performed of plaintiff's right index

finger. This scan disclosed the dislocation of her right index

finger. Dr. Nord had ordered this scan to look at the radius in

her forearm three-dimensionally to determine why that fracture

was not healing and to get a three-dimensional look at the

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metacarpal phalangeal joint around her right index finger to see

what was the exact condition and alignment of the bone structure.

Dr. Nord was "shocked" to find a dislocation after the

CT scan and then performed surgery on plaintiff's finger on June

29, 2004. A second procedure was performed on July 19, 2004, and

then plaintiff was referred by Dr. Nord to a hand specialist, Dr.

Frank Lee.

On July 22, 2004, Dr. Lee saw plaintiff. He noted

plaintiff had dislocated the bones making up the knuckle of her

right index finger. Dr. Lee had her continue with therapy. He

continued to see plaintiff and eventually performed surgery on

her finger October 19, 2004. Dr. Lee continued to prescribe

vigorous therapy but eventually performed fusion surgery on

January 6, 2005. He considered the fusion a success but only saw

plaintiff for one follow-up visit. Dr. Lee testified if there is

more than one injury, the pain of a dislocation may be over-

whelmed by the pain of the other injury.

On August 3, 2006, plaintiff sought treatment from Dr.

Mitchell Rotman, an orthopedic surgeon specializing in elbows,

shoulders, and hands. Dr. Rotman operated on plaintiff and

scraped out scar tissue and removed wires which were inserted at

the time of the fusion in order for plaintiff to regain more

range of motion. Plaintiff testified after this surgery she not

only regained motion but the pain decreased also.

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Dr. Rotman testified, as plaintiff's medical expert

witness, it was a breach of the standard of care for a reasonably

well-qualified orthopedic surgeon to miss the warning signs of

the finger injury which were presented. The X rays taken and

reviewed by Dr. Nord himself were diagnostic of plaintiff's right

index finger dislocation. It was also Dr. Rotman's opinion, as

it was all the other doctors who were asked, including Dr. Nord,

a patient with a dislocated finger as plaintiff had would have

been in extreme pain and would have been expected to complain

about it to her physician. Rotman did concede plaintiff's finger

dislocation was an unusual presentation but was adamant it could

have been discovered earlier and, thus, would not have involved

the degree of damage presented by torn and stretched ligaments

and tendons encountered by the late diagnosis and treatment in

this case.

Dr. Mark Cohen, an orthopedic surgeon specializing in

the hand, wrist, forearm, and elbow, testified as the medical

defendants' medical expert witness. Dr. Cohen reviewed the X-ray

films taken at Memorial and did not find those films to be

diagnostic of a dislocation of the index finger. Nor did he find

anything diagnostic of a dislocation in the films taken after

plaintiff's forearm surgery. Dr. Cohen also reviewed the films

taken by Dr. Nord in his office on February 10, 2004, and March

9, 2004, post-operation and found those did not show anything

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diagnostic of a dislocation either. The problem with all of the

X rays taken was they focused on the forearm fracture area and

the finger was shown at an angle, making it difficult to see

exactly what was going on with the finger.

Dr. Cohen did concede the X rays showed a "pathology"

in regard to plaintiff's right index finger. He also acknowl-

edged five separate complaints of either hand or finger pain by

plaintiff in the first few days of her initial hospitalization.

Dr. Cooley, the Bloomington radiologist, testified he

reviewed the December 13, 2003, X-ray film after plaintiff's

initial surgery with Dr. Nord and reported it showed an open

reduction of fractures of both the radius and ulna. He testified

at trial the film also depicted a medial dislocation of the

phalanx on the metacarpal joint of the right index finger. He

also reviewed the results of the CT scan taken on June 26, 2004,

and testified it showed the proximal phalanx of the same finger

was displaced posteriorly on the metacarpal. Dr. Cooley stated

this was the same dislocation fracture in both studies. Dr.

Cooley then admitted the X-ray report he authored in regard to

the December 13, 2003, X ray made no mention of the fracture

dislocation of plaintiff's right index finger because he did not

visualize the fracture dislocation at that time.

According to Dr. Cooley, it is easier for a radiologist

to find a fracture dislocation on an X ray once he is told of its

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existence. The first time he detected the fracture dislocation

of plaintiff's finger was after he was told there was a lawsuit

involving the finger. Dr. Cooley also stated the training a

radiologist receives in interpreting X rays is greater than that

of an orthopedic surgeon.

The jury returned a verdict in favor of plaintiff and

against defendants Franklin, Dr. Nord, and Central Illinois

Orthopedic Surgery in the total amount of $307,000. Plaintiff

was awarded $107,000 for the reasonable expense of necessary

medical care; $25,000 for disfigurement; $75,000 for pain and

suffering, including future pain and suffering; and $100,000 for

disability, including future disability. The jury found Franklin

to be 75% at fault and the medical defendants to be 25% at fault.

After receiving an extension of time to file, the

medical defendants filed a posttrial motion on May 19, 2009. All

of the issues raised on appeal were raised in that motion. On

June 26, 2009, the trial court denied the motion. This appeal

followed. Franklin did not appeal.

II. ANALYSIS

A. Jury Instructions

The medical defendants argue the trial court erred in

giving jury instructions (1) which failed to differentiate

between the injury caused solely by Franklin to plaintiff's

forearm and the injury caused to the index finger for which both

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Franklin and the medical defendants are liable, (2) injected

insurance into the case, and (3) confused the jury on the consid-

eration to be given expert witness testimony.

It is within the discretion of the trial court to

determine what jury instructions should be given, and a reviewing

court will not disturb the decision of the trial court unless it

abuses its discretion. Brady v. McNamara, 311 Ill. App. 3d 542,

546, 724 N.E.2d 949, 952 (2000). "[T]he trial court has the

discretion to determine if a particular jury instruction is

applicable, supported by evidence in the record, and an accurate

statement of the law." Luye v. Schopper, 348 Ill. App. 3d 767,

773, 809 N.E.2d 156, 161 (2004). The standard for deciding

whether a trial court abused its discretion and the propriety of

tendered instructions is "whether the jury was fairly, fully and

comprehensively informed on the relevant principles, considering

the instructions in their entirety." Saunders v. Schultz, 20

Ill. 2d 301, 314, 170 N.E.2d 163, 170 (1960); Matarese v. Buka,

386 Ill. App. 3d 176, 179, 897 N.E.2d 893, 896 (2008).

A trial court is required to use an Illinois Pattern

Jury Instruction when it is applicable to a civil case unless the

court determines it does not accurately state the law. 177 Ill.

2d R. 239(a); York v. Rush-Presbyterian-St. Luke's Medical

Center, 222 Ill. 2d 147, 204, 854 N.E.2d 635, 666 (2006). The

issue of whether a jury instruction is an accurate statement of

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the law is reviewed de novo. Studt v. Sherman Health Systems,

387 Ill. App. 3d 401, 403, 900 N.E.2d 1212, 1214 (2008).

1. Failure To Differentiate Between the Injuries

Plaintiff did not seek damages for her right forearm

fracture against the medical defendants, only against Franklin.

Damages were sought from all three for the injury to her right

index finger. Yet the verdict form given did not require the

jury to make a separate calculation for the damages attributed to

plaintiff's right forearm fracture and her dislocated right index

finger. The medical defendants contend this is error.

Plaintiff and the medical defendants each offered a

different verdict form. The medical defendants objected to the

use of plaintiff's proffered instruction and submitted one of

their own which, upon plaintiff's objection, was refused by the

trial court. Plaintiff's instruction was given.

Plaintiff's instruction No. 9 (Verdict Form A) was

Illinois Pattern Jury Instructions, Civil, No. B45.03.A (Supp.

2008) (hereinafter IPI Civil (Supp. 2008) No. B45.03.A). It

stated jurors were to find for plaintiff and against either

Franklin or the medical defendants, or both. (A copy is appended

at the end of this opinion.) Plaintiff's instruction No. 9

provided a blank for determining the total monetary amount of

damages suffered by plaintiff as a proximate result of the

occurrence. Then blanks were provided for the itemization of

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damages: medical expenses, pain and suffering, disability, and

disfigurement. Finally, the jury was to assume 100% represented

the total combined fault of all persons or entities whose fault

proximately caused plaintiff's injuries, including any defendant

found liable, and find the fault attributable to each. The jury

was also informed if any defendant was found not liable to

plaintiff, zero (0) should be entered as to the percentage for

that defendant.

The medical defendants argue using plaintiff's instruc-

tion No. 9 was error. Although Franklin, as defendant driver, is

responsible for all injuries arising as a result of the auto

accident, the medical defendants are not responsible for any

injury related solely to the auto accident and unrelated to the

medical care provided. This would exclude any damages for

treatment provided for plaintiff's right forearm fracture as

plaintiff neither alleged nor proved any negligence in regard to

that treatment.

Thus, the medical defendants offered their jury in-

struction No. 29A, which followed the same general format as IPI

Civil (Supp. 2008) No. B45.03.A offered by plaintiff but sepa-

rated the findings, requiring the jury to find liability and

damages as to plaintiff's right forearm injury just as to defen-

dant Franklin and as to her right index finger injury as to

defendant Franklin and the medical defendants. (A copy is

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appended at the end of this opinion.) The medical defendants'

instruction No. 29A included the itemization of damages found in

plaintiff's instruction No. 9 but provided two separate itemiza-

tions, one for plaintiff's right forearm and one for her right

index finger. This instruction was refused by the trial court

after plaintiff objected to it.

The medical defendants argued plaintiff suffered two

distinct injuries, one to her forearm and one to her index

finger. Plaintiff basically conceded this point at oral argu-

ment, and her complaint only sought damages from Dr. Nord for the

injury to her index finger. According to the medical defendants,

the jury could find the medical defendants negligent for failure

to diagnose plaintiff's dislocated finger, but they should not

have been allowed to assess liability for the fractures to the

right forearm caused by Franklin. No claim was made through

testimony or other evidence against the medical defendants for

treatment of the right forearm fracture; thus, no basis existed

for asking the jury to award damages against them for those

injuries. However, the verdict form offered by plaintiff did not

separate the claims. Both plaintiff and Franklin objected to the

medical defendants' proffered verdict form, saying it was confus-

ing and the percentages of liability offered in plaintiff's

proffered verdict form were sufficient. The trial court rejected

defendants' instruction without giving a specific reason.

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At oral argument, plaintiff's counsel argued a verdict

form giving the jury the opportunity to assess separate damages

for each injury would be too confusing and would require the jury

to sort through the medical bills and attribute them accordingly.

However, Franklin's counsel had no problem doing that. At trial,

he argued the medical expenses attributable to the injuries were

as follows: arm, $42,100; finger, $65,688; and overlapping arm

and finger, $5,903. Indeed, plaintiff's own exhibit F, appended

to her brief, also depicts a division of the medical bills

according to the injury to the forearm, the injury to the finger,

and the overlapping expenses. Consequently, we find it would not

be impossible or overly confusing for the jury to be required to

determine an amount of damages attributable solely to the forearm

fracture, for which the medical defendants would have no liabil-

ity whatsoever.

The medical defendants argue the use of plaintiff's

instruction No. 9 under the facts of this case is contrary to

Illinois law. We agree. It is a well-established principle in

Illinois law, where a plaintiff's injuries are separable, defen-

dants are not jointly and severally liable for the damages.

Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 802, 909 N.E.2d

353, 360 (2009). In Patton v. Carbondale Clinic, S.C., 161 Ill.

2d 357, 370, 641 N.E.2d 427, 435 (1994), the defendants were not

joint tortfeasors where the plaintiff suffered two distinct

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injuries: the first injury suffered in an automobile accident and

the second suffered from the doctor's malpractice in treating her

injuries. The injuries were found to be separate and distinct.

Carbondale Clinic, 161 Ill. 2d at 374, 641 N.E.2d at 431. In

Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 437-

38, 593 N.E.2d 522, 525 (1992), our supreme court held where a

plaintiff's injury can be distinguished from a physician's

aggravation of the injury, separate and distinct injuries occur

and defendants cannot be held jointly liable. However, "where

defendants, albeit sharing no common purpose or duty, and failing

to act in concert, nevertheless acted concurrently to produce an

indivisible injury to the plaintiff," the defendants are joint

tortfeasors. (Emphasis in original.) Burke, 148 Ill. 2d at 438,

593 N.E.2d at 526. In Burke, the plaintiff was injured by the

first tortfeasor, and that injury was exacerbated and/or plain-

tiff received an additional injury from a second tortfeasor.

Burke, 148 Ill. 2d at 439, 593 N.E.2d at 526. Either injury or

both injuries could have caused plaintiff's permanent condition.

Because the injury was indivisible, the defendants were joint

tortfeasors. Burke, 148 Ill. 2d at 439, 593 N.E.2d at 526.

Plaintiff states in her brief "[h]ere, plaintiff's

finger injury was a single, indivisible injury. The existence of

a single, individual [sic] injury establishes that multiple

defendants are jointly and severally liable." (Emphasis added.)

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The problem with plaintiff's second sentence is it does not end

with the following phrase "for plaintiff's finger injury." In

other words, because plaintiff suffered injuries which are

indivisible as to her index finger, both Franklin and the medical

defendants are liable for this injury. However, there was no

dispute only Franklin is responsible for the fractured forearm,

and the medical defendants could not be made to pay for damages

resulting from the forearm injury.

Plaintiff notes our supreme court, in Burke, adopted

the test of jointness in section 433A of the Restatement (Second)

of Torts. The court stated "[t]he test of jointness is indivisi-

bility of the injury." Burke, 148 Ill. 2d at 438, 593 N.E.2d at

526.

Restatement (Second) of Torts §433A (1965) provides as

follows:

"(1) Damages for harm are to be apportioned

among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for

determining the contribution of each cause to

a single harm."

The comments on subsection (1) above, related to "distinct

harms," read as follows:

"Distinct harms. There are other re-

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sults which, by their nature, are more capa-

ble of apportionment. If two defendants

independently shoot the plaintiff at the same

time, and one wounds him in the arm and the

other in the leg, the ultimate result may be

a badly damaged plaintiff in the hospital,

but it is still possible, as a logical, rea-

sonable, and practical matter, to regard the

two wounds as separate injuries, and as dis-

tinct wrongs. The mere coincidence in time

does not make the two wounds a single harm,

or the conduct of the two defendants one

tort. There may be difficulty in the appor-

tionment of some elements of damages, such as

the pain and suffering resulting from the two

wounds, or the medical expenses, but this

does not mean that one defendant must be

liable for the distinct harm inflicted by the

other. It is possible to make a rough esti-

mate which will fairly apportion such subsid-

iary elements of damages.

***

It should be noted that there are situa-

tions in which the earlier wrongdoer may be

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liable for the entire damage, while the later

one will not. Thus an original tortfeasor

may be liable not only for the harm which he

has himself inflicted, but also for the addi-

tional damages resulting from the negligent

treatment of the injury by a physician. ***

The physician, on the other hand, has played

no part in causing the original injury, and

will be liable only for the additional harm

caused by his own negligence in treatment."

Restatement (Second) of Torts §433A, Comments

b, c, at 435 (1965).

Section 433A of the Restatement (Second) of Torts has

been superseded by section 26 of the Restatement (Third) of

Torts: Apportionment of Liability (Restatement (Third) of Torts:

Apportionment of Liability §26 (2000) (hereinafter Restatement

(Third) of Torts)). While not yet formally adopted by our

supreme court, we look to this section for whatever enlightenment

it may provide.

Section 26 provides as follows:

"(a) When damages for an injury can be

divided by causation, the factfinder first

divides them into their indivisible component

parts and separately apportions liability for

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each indivisible component part ***.

(b) Damages can be divided by causation

when the evidence provides a reasonable basis

for the factfinder to determine:

(1) that any legally culpable

conduct of a party or other rele-

vant person to whom the factfinder

assigns a percentage of responsi-

bility was a legal cause of less

than the entire damages for which

the plaintiff seeks recovery and

(2) the amount of damages

separately caused by that conduct.

Otherwise, the damages are indivis-

ible and thus the injury is indi-

visible. Liability for an indivis-

ible injury is apportioned under

Topics 1 through 4." Restatement

(Third) of Torts §26 (2000).

The comments to the Restatement note most rules about

dividing damages by causation were developed prior to the concept

of comparative responsibility and most of these rules were

developed in the context of indivisible injuries. Few courts

have addressed the interaction between dividing damages by

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causation and apportioning liability by responsibility. Restate-

ment (Third) of Torts §26, Comment a, at 321 (2000). The comment

further explains: "Damages can be divided by causation when any

person *** to whom the factfinder assigns a percentage of respon-

sibility *** was a legal cause of less than the entire damages.

*** Divisible damages are first divided by causation into

indivisible parts, and then each indivisible part is apportioned

by responsibility." Restatement (Third) of Torts §26, Comment a,

at 320 (2000). "The percentages of comparative responsibility

for each component part add to 100 percent." (Emphasis added.)

Restatement (Third) of Torts §26, Comment c, at 321 (2000). The

comments further note the underlying policies behind the division

by causation first, and then the subsequent apportionment of

responsibility as follows:

"No party should be liable for harm it did

not cause, and an injury caused by two or

more persons should be apportioned according

to their respective shares of comparative

responsibility." Restatement (Third) of

Torts §26, Comment a, at 321 (2000).

Thus, the two-step process, dividing injuries by causation and

then apportioning responsibility to each component part, does not

make a defendant liable for damages he did not cause, and it

apportions liability among persons causing any component part

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according to that person's comparative share of responsibility.

Restatement (Third) of Torts §26, Comment d, at 323 (2000).

Comment (d) to section 26 discusses an alternative

method of asking the jury to find the plaintiff's aggregate

damages and then assigning a single set of percentages to all

persons who caused at least part of the damage, taking into

account evidence of causation and comparative responsibility.

Restatement (Third) of Torts §26, Comment d, at 323 (2000).

Comment j notes, however, a problem with a one-step process,

i.e., it may result in a party being held liable for more damages

than the party caused. Restatement (Third) of Torts §26, Comment

j, at 326-27 (2000). "A party's comparative responsibility is

distinct from the magnitude of the injury the party caused. When

the factfinder is permitted to combine these two concepts to

arrive at a single apportionment of liability, there is a risk

that a party will be required to pay for damages it did not

cause. Thus, the two-step process in [s]ubsection (a) is used

unless the court determines that it is administratively infeasi-

ble." Restatement (Third) of Torts §26, Comment j, at 326-27

(2000).

As recognized in comment h, when a defendant is jointly

and severally liable, he may be liable for more than his own

percentage share of the damages. Restatement (Third) of Torts

§26, Comment h, at 324 (2000). However, if a defendant did not

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cause a portion of the damages, the defendant should not be

liable therefor, regardless of joint and several liability.

Consider the following hypothetical. A woman is in a

car accident. Her legs are shattered. She also suffers a

dislocated finger. After many surgeries and medical treatment

that did not breach the standard of care, amputation of both legs

is necessary. The total cost of her medical care is $950,000.

The same orthopedic surgeon who treated her legs failed to

diagnose the problem with her finger. The problem with the

finger is later discovered and requires surgery to repair. The

cost of the medical care for the treatment of the dislocated

finger is $50,000. The woman files a two-count complaint. The

first count is directed only against the at-fault driver for the

injuries to her legs and finger. The second count is directed at

the orthopedic surgeon for only the injury to her finger.

A jury instruction like the one given to the jury in

the instant case is used over the defendant physician's objec-

tion. The jury finds the driver and the physician 97.5% and 2.5%

at fault, respectively, and awards plaintiff $2 million ($1

million medical and $1 million nonmedical) for her combined

injuries. The total damages are not broken down between the

injuries to her legs and the dislocated finger. In addition, the

verdict does not show the physician bore no fault for the inju-

ries to plaintiff's legs. The at-fault driver is judgment proof.

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Because the jury's verdict failed to divide the damages

between the injuries and attributed a percentage of fault to the

physician for all of plaintiff's injuries (not just the finger

injury), pursuant to section 2-1117 of the Code of Civil Proce-

dure (735 ILCS 5/2-1117 (West 2008)), the physician would be

responsible for paying the entire $1 million in medical expenses

even though the physician's negligence had nothing to do with the

$950,000 in medical expenses incurred for the treatment of the

leg injuries. Section 2-1117 states in part: "in actions on

account of bodily injury ***, based on negligence ***, all

defendants found liable are jointly and severally liable for

plaintiff's past and future medical and medically related ex-

penses." 735 ILCS 5/2-1117 (West 2008). Pursuant to the verdict

form, the physician was found responsible for a percentage of all

of the plaintiff's injuries, not just a percentage of the injury

he played a part in causing. It would clearly be unfair to the

physician to require him to pay medical expenses for an injury he

had absolutely nothing to do with causing.

While the legislature clearly intended a minimally

responsible tortfeasor to be jointly and severally liable for all

medical expenses for an injury he partially caused, we find the

legislature clearly did not intend for a defendant to be respon-

sible for medical expenses for an injury the plaintiff did not

even allege he caused in any part. As a result, the jury in-

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struction and verdict form given in this case are contrary to

Illinois law because they have the effect of making an individual

responsible for damages he had absolutely nothing to do with

causing.

Thus, under section 433A of Restatement (Second) of

Torts and under section 26 of the Restatement (Third) of Torts,

where it is feasible for the jury to assess damages by causation,

this should be done first and then apportionment of responsibil-

ity for each component part would be assigned. Even where the

magnitude of each indivisible component cannot be determined with

precision, this does not mean the damages are indivisible. All

that is required is a reasonable basis for division of the

damages. Restatement (Third) of Torts §26, Comment f, at 323

(2000). As noted above, section 433A makes this same point. In

this case, plaintiff's complaint provides the basis for dividing

the damages. Plaintiff did not allege the medical defendants are

in any way responsible for the injury to her forearm.

Consequently, the medical defendants' verdict form

contained in their jury instruction No. 29A accurately reflected

Illinois law on this issue. While we know the jury apportioned

relative responsibility 75/25 (Franklin/medical defendants), we

have no way of knowing how they divided the damages between the

forearm and the finger. The medical defendants have no responsi-

bility for the forearm fracture, but, under the verdict form

- 24 -

submitted by plaintiff, the medical defendants were assigned 25%

of the responsibility for all damages, including damages for the

forearm injuries.

Injuries to two separate body parts, only one of which

includes an alleged successive claim of medical malpractice, are

two separate and distinct injuries requiring separate treatment

in a jury instruction. The existence of a single, indivisible

injury is necessary to establish multiple defendants are jointly

and severally liable. See Board of Trustees of Community College

District No. 508, County of Cook v. Coopers & Lybrand, 208 Ill.

2d 259, 279-80, 803 N.E.2d 460, 472 (2003). Franklin and the

medical defendants are not jointly and severally liable for

plaintiff's injuries to her right forearm.

As the medical defendants are not liable for any

damages in relation to plaintiff's right forearm, a separate

itemization as to the damages resulting from that injury is

necessary in order to assess the amount of Franklin's sole

liability for them. Then, a separate itemization as to the

damages resulting from the injury to plaintiff's right index

finger is necessary, which, in addition, assesses the relative

percentage of responsibility attributable to Franklin and the

medical defendants. This is exactly what the medical defendants

tendered in their instruction No. 29A.

Plaintiff argues in addition to giving the jury IPI

- 25 -

Civil (Supp. 2008) No. B45.03.A, the trial court instructed it

with a modified version of Illinois Pattern Jury Instructions,

Civil, No. 20.01 (2006) (hereinafter IPI Civil (2006) No. 20.01

(modified)), which included the following paragraphs as given:

"The plaintiff claims that she was in-

jured and sustained damage, and that the

defendant, Christine Franklin, was negligent

in one or more of the following respects:

* * *

The plaintiff also claims that she suf-

fered injury to her right index finger and

sustained damage, and that defendant, Larry

Nord, was professionally negligent in one or

more of the following respects ***."

The jury was instructed that the medical defendants were alleged

to be professionally negligent for the injury to plaintiff's

finger, and no mention was made of the forearm injury with

respect to Dr. Nord. The jury was also instructed Franklin

should be held accountable for any and all injuries from the

accident. However, these instructions do not cure the harm

caused by the verdict form given to the jury. Without the

separate itemization on the verdict form tendered by the medical

defendants, there was no way provided for the jury to hold the

medical defendants accountable for only the injuries they may

- 26 -

have caused to plaintiff's index finger.

Where a pattern jury instruction accurately reflects

Illinois law, the trial court is required to use it. 177 Ill. 2d

R. 239(a). Here, the court was not required to use IPI Civil

(Supp. 2008) No. B45.03.A because it does not accurately reflect

the law under the circumstances of this case. Indeed, the

comments to the jury instruction state: "This computational

verdict form is to be used in cases involving a single plaintiff

and more than one entity which could or might have caused plain-

tiff's injury or damage ***." IPI Civil (Supp. 2008) No.

B45.03.A, Committee Comment, at 38-39. Here it was undisputed

the medical defendants did not cause any of the damage related to

the forearm injury. The comment to IPI Civil (Supp. 2008) No.

B45.03.A further states: "Because of the absence of case law on

various issues, the committee does not yet have sufficient

guidance from the courts to draw instructions which would ex-

pressly accommodate every situation." IPI Civil (Supp. 2008) No.

B45.03.A, Committee Comment, at 41. Because the jury was not

given the opportunity to divide the damages between the forearm

injury and index finger injury, the trial court abused its

discretion in giving plaintiff's instruction No. 9 and refusing

the medical defendants' instruction No. 29A. The medical defen-

dants are entitled to a new trial.

The dissent contends the attribution of fault to the

- 27 -

medical defendants in the amount of 25% comports with the

evidence. Even if this is a fair allocation of responsibility,

the dissent fails to account for the impact joint-and-several-

liability principles have on Dr. Nord. Our earlier hypothetical

demonstrates the inherently unfair nature of assigning a single

set of percentages to all persons who caused part of the damages

where the injuries are divisible, there are multiple defendants,

and one or more defendants are clearly not responsible for some

of the injuries.

It is absolutely clear the $307,000 award by the jury

included the damages to the forearm. Since the jury attributed

25% of the fault to the medical defendants (and not less than

25%), they are jointly and severally liable to the plaintiff for

all of the damages. 735 ILCS 5/2-1117 (West 2008). Thus, rather

than exposure for the $76,750 the dissent contends comports with

the damage to the index finger, the medical defendants share

joint and several responsibility for the entire judgment, which

includes damages awarded for the forearm injury.

Contrary to what the dissent states, the issue is not

that Dr. Nord may be responsible for more than his assessed

percentage of fault, but rather how he can be responsible in any

percentage or amount for an injury he did not cause. It is cold

comfort that Dr. Nord now can assume the burden of trying to

collect from Franklin that which he should never have been liable

- 28 -

for in the first place. Because plaintiff alleged only Franklin

was responsible for the forearm injury, it should be plaintiff's

burden to collect damages for that injury from Franklin.

However, plaintiff's counsel stated during oral argu-

ment plaintiff settled with Franklin for her insurance policy

limits, gave her a release, and was seeking the remainder of the

judgment from Dr. Nord. The record does not reflect the amount

of Franklin's policy limits. If her policy limits were only

$100,000, plaintiff could seek the remainder in damages from Dr.

Nord pursuant to joint and several liability. In this case, as a

result of the verdict form given to the jury, neither the par-

ties, the trial court, nor this court has any way of knowing

whether this verdict will result in Dr. Nord paying for damages

for an injury plaintiff did not allege he caused in any way.

Since the medical defendants ought not have any liability imposed

or pay any damages for the forearm injury, their tendered in-

struction should have been given to the jury.

Because we are granting a new trial to the medical

defendants, we offer some guidance on the remaining issues raised

by those defendants in the event they should arise in a new

trial.

2. Injection of Insurance Into the Case

The medical defendants argue the issue of insurance

coverage was erroneously injected into the trial via a jury

- 29 -

instruction when there was no mention of insurance throughout the

trial. They had filed a motion in limine prior to trial to

prohibit any reference to insurance. The motion was granted and

no party violated it.

Plaintiff offered her instruction No. 1, Illinois

Pattern Jury Instructions, Civil, No. 3.03 (Supp. 2008) (herein-

after IPI Civil (Supp. 2008) No. 3.03), which states:

"Whether a party is insured or not in-

sured has no bearing on any issue that you

must decide. You must refrain from any in-

ference, speculation, or discussion about

insurance.

If you find for the plaintiff, you shall

not speculate about or consider any possible

sources of benefits the plaintiff may have

received or might receive. After you have

returned your verdict, the court will make

whatever adjustments are necessary in this

regard."

The instruction was given over objections from both the medical

defendants and Franklin.

Plaintiff argued testimony in the trial indicated all

of plaintiff's medical expenses, except for less than $1,000, had

been paid. The trial court initially reserved ruling on the

- 30 -

instruction when first proffered by plaintiff. The medical

defendants argued insurance was not at issue and the instruction,

while published by the Illinois Supreme Court Committee on

Pattern Jury Instructions in Civil Cases (Committee), had yet to

be approved by the supreme court. The court later allowed the

instruction without any further argument from the parties and did

not give any reason for allowing the instruction.

IPI Civil (Supp. 2008) No. 3.03 was revised by the

Committee in October 2007. The revision replaced two prior

instructions, Illinois Pattern Jury Instructions, Civil, No. 3.03

(2006) (hereinafter IPI Civil (2006) No. 3.03) and Illinois

Pattern Jury Instructions, Civil, No. 30.22 (2006) (hereinafter

IPI Civil (2006) No. 30.22). The former IPI Civil (2006) No.

3.03 is the same as the first paragraph of the new IPI Civil

(Supp. 2008) No. 3.03 with the addition of the words "or not

insured" in the first line. The second paragraph is the same as

the former IPI Civil (2006) No. 30.22, which stated the old

collateral-source rule. The Notes on Use to the former IPI Civil

(2006) No. 3.03 stated the instruction should "only be given at

the request of the party whose liability insurance coverage has

been disclosed or if the jury inquir[es] about liability insur-

ance during deliberations."

The Notes on Use to IPI Civil (Supp. 2008) No. 3.03

state: "The Committee believes that this instruction should be

- 31 -

given in all cases where insurance could play a role in the

decision of the jury. With the wide prevalence of liability

insurance, medical insurance[,] or government benefits such as

Medicaid or Medicare, many jurors question the role of insurance

in contested accident, medical negligence[,] or other cases."

The medical defendants argue a jury instruction is

approved or rejected for use only after it has been judicially

questioned and considered (see Lange v. Freund, 367 Ill. App. 3d

641, 645, 855 N.E.2d 162, 167 (2006)) and the propriety of a

trial court's determination is not conclusively determined by the

recommendations and comments of the Committee. Lange, 367 Ill.

App. 3d at 645, 855 N.E.2d at 167. IPI Civil (Supp. 2008) No.

3.03 has not been judicially reviewed. However, the Lange case

is inapposite to the situation here as the trial court in Lange

injected its own instruction into the proceedings where the

Committee comments recommended against giving such an instruc-

tion. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167. Even

under such a circumstance, the reviewing court in Lange approved

the giving of the court's instruction because it was appropriate

in light of the closing argument made by plaintiff's counsel in

that case. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167.

Further, we note if a trial court never gives a particular jury

instruction because it has never been "judicially reviewed," as

defendants suggest the law to be, there will never be an opportu-

- 32 -

nity to "judicially review" that particular instruction. The

medical defendants' contention that an instruction promulgated by

the IPI committee is not effective until approved by the supreme

court is contrary to Supreme Court Rule 239(a). As noted above,

a trial court is required to use an IPI instruction unless the

court determines it does not accurately reflect the law. See 177

Ill. 2d R. 239(a).

Although the word "insurance" was not used during the

trial here, testimony indicating the vast majority of plaintiff's

sizable medical bills had been paid, while the evidence also

showed she and her husband are of modest means, would lead to the

inference insurance of some sort was used to pay those bills.

While no mention or inference was made of the existence of

insurance covering the medical defendants for their liability,

the medical defendants were not unduly prejudiced as the wording

of former IPI Civil (2006) No. 3.03 has been retained instructing

the jury it does not matter in its deliberations whether a party

was insured. No abuse of discretion in the giving of IPI Civil

(Supp. 2008) No. 3.03 has been shown by the medical defendants,

as the instruction accurately reflects Illinois law.

3. Conflicting Instructions in Regard to

Consideration of Expert Testimony

Plaintiff offered her instruction No. 3, Illinois

Pattern Jury Instructions, Civil, No. 3.08 (Supp. 2008) (herein-

after IPI Civil (Supp. 2008) No. 3.08), which states:

- 33 -

"You have heard a witness give opinions

about matters requiring special knowledge or

skill. You should judge [his] testimony in

the same way [that] you judge *** testimony

from any other witness. The fact that such

person has given an opinion does not mean

that you are required to accept it. Give the

testimony whatever weight you think it de-

serves, considering the reasons given for the

opinion, the witness's qualifications, and

all of the other evidence in the case."

The trial court gave this instruction over the objection of the

medical defendants. It is a new instruction, like IPI Civil

(Supp. 2008) No. 3.03.

IPI Civil (Supp. 2008) No. 3.08 was given in addition

to the medical defendants' instruction No. 25, Illinois Pattern

Jury Instructions, Civil, No. 105.02 (2005) (hereinafter IPI

Civil (2005) No. 105.02), to which there was no objection.

(While the parties refer to Illinois Pattern Jury Instructions,

Civil, No. 105.01 (2006) (hereinafter IPI Civil (2006) No.

105.01) in their briefs, it appears IPI Civil (2005) No. 105.02,

which was withdrawn in 2006, was actually given at trial without

objection by any party.) The medical defendants' instruction No.

25 states:

- 34 -

"A physician who holds himself out as a spe-

cialist and provides service in this spe-

cialty must possess and apply the knowledge

and use the skill and care ordinarily used by

a reasonably well-qualified orthopedic sur-

geon under circumstances similar to those

shown by the evidence. The failure to do so

is professional negligence. The only way in

which you may decide whether a defendant

possessed and applied the knowledge and used

the skill and care which the law required

from him is from expert testimony presented

in the trial. You must not attempt to deter-

mine this question from any personal knowl-

edge that you have."

This instruction in regard to professional negligence tells the

jurors, in order to determine the standard of care, they must

rely on the opinion testimony of qualified witnesses and evidence

of professional standards and the jurors must not attempt to

determine the question from any personal knowledge they may have.

The medical defendants argued, both before the trial

court and here, the two jury instructions taken together would

result in the jury ignoring the testimony of expert witnesses, as

IPI Civil (Supp. 2008) No. 3.08 allows them to do, instead of

- 35 -

using only the testimony of expert witnesses to determine the

professional standard of care appropriate in these circumstances.

Jurors are not permitted to determine on their own the standard

of care or whether the defendant has breached it. No case has

suggested it is proper for jurors to decide issues of medical

negligence based on their layperson's perspective, except in

circumstances of gross negligence. The medical defendants argue,

at a minimum, the giving of these two instructions together is

confusing to the jury. At worst, it has the potential to allow

jurors, rather than medical experts, to set the standard of care.

We disagree. IPI Civil (Supp. 2008) No. 3.08 applies

to the weight to be given expert testimony on any topic. IPI

Civil (2005) No. 105.02 (now incorporated into IPI Civil (2006)

No. 105.01) is limited to the determination of the "standard of

care" for health-care defendants. The two jury instructions do

not conflict. Taken together, the jury was instructed in IPI

Civil (2005) No. 105.02 it must rely on expert witness testimony

to determine the applicable standard of care for the medical

defendants, while IPI Civil (Supp. 2008) No. 3.08 told the jury

it did not need to accept all expert opinions. The Notes on Use

to IPI Civil (Supp. 2008) 3.08 state it is to be used in conjunc-

tion with IPI Civil (2006) No. 105.01 (dealing generally with

professional-negligence cases, replacing IPI Civil (2005) No.

105.02, which has been withdrawn). Thus, if the jury determined

- 36 -

there were not any believable expert opinions supporting a

standard-of-care determination, plaintiff would not have proved

her case and the jury would so find. The instructions are

neither incompatible nor contradictory. See also Sherman Health

Systems, 387 Ill. App. 3d at 407-08, 900 N.E.2d at 1218 (finding

IPI Civil (2006) No. 105.01 accurately states the law). But cf.

Buka, 386 Ill. App. 3d at 185-86, 897 N.E.2d at 902 (finding IPI

Civil (2006) No. 105.01 does not accurately state the law).

B. Evidence Qualified Radiologists Did Not Diagnose

Plaintiff's Dislocated Finger

Plaintiff was first seen at Memorial where X rays were

taken. Dr. Haag, a clinical radiologist, read those X rays. In

his report, he did not identify any dislocation of plaintiff's

finger. Dr. Haag was a defendant in this case but was dismissed

right before the start of the trial.

Plaintiff was again x-rayed following surgery in

Bloomington. Dr. Cooley, a board-certified radiologist, reviewed

the X rays and did not detect any dislocation of her finger.

Both Dr. Haag's and Dr. Cooley's reports were part of plaintiff's

medical records admitted into evidence by agreement. The medical

defendants contend if either Dr. Haag or Dr. Cooley had identi-

fied the dislocation, it would have been treated by them in a

timely manner. A significant part of the medical defendants'

defense was the unusual presentation of plaintiff's dislocated

finger and, thus, the difficulty in detecting the dislocated

- 37 -

finger in the X rays. They argue radiologists are even more

qualified to read X rays than orthopedic surgeons and, therefore,

the fact neither Dr. Haag nor Dr. Cooley detected the finger

dislocation in the X rays was highly relevant.

The trial court refused to allow reference to Dr.

Haag's X-ray report in the opening statement of the medical

defendants; refused to allow them to cross-examine Dr. Rotman

using Dr. Haag's and Dr. Cooley's X-ray reports; and excluded

some of Dr. Cooley's testimony. The medical defendants argue,

taken together, these rulings deprived them of a fair trial.

They contend the X-ray reports are part of plaintiff's medical

history and cannot be properly excluded.

They argue further, Dr. Cooley testified at trial that

the dislocation of plaintiff's finger was visible on the same X-

rays he looked at in the course of plaintiff's treatment but

failed to visualize initially. Plaintiff also presented testi-

mony from Dr. Rotman the dislocation was visible on the X-rays

taken in early 2004 at Dr. Nord's office. The medical defendants

argue the court kept from the jury facts contained in the medical

records that showed Drs. Haag and Cooley did not identify the

dislocation on those same X rays.

Thus, the medical defendants argue the trial court's

rulings eliminating the mention of Dr. Haag at trial and severely

limiting Dr. Cooley's testimony denied them the opportunity to

- 38 -

fairly present their theory of the case and were prejudicial

error.

"'Evidentiary rulings are within the sound discretion

of the trial court and will not be reversed absent an abuse of

discretion.'" People v. Johnson, 385 Ill. App. 3d 585, 596, 898

N.E.2d 658, 669 (2008), quoting People v. Purcell, 364 Ill. App.

3d 283, 293, 846 N.E.2d 203, 211 (2006). Abuse of discretion is

found only where the trial court's rulings are arbitrary, fanci-

ful or unreasonable, or where no reasonable person would take the

view adopted by the court. Purcell, 364 Ill. App. 3d at 293, 846

N.E.2d at 211.

We note, first, the medical defendants are incorrect in

stating no evidence was before the jury in regard to Dr. Cooley

missing the diagnosis of the dislocated finger. Dr. Cooley

admitted in his testimony the X-ray report he authored in regard

to the December 13, 2003, X ray made no mention of the fracture

dislocation of plaintiff's right index finger because he did not

visualize the fracture dislocation at that time. He also stated

the training a radiologist receives in interpreting X rays is

greater than that of an orthopedic surgeon, which supports the

medical defendants' theory of the case. In fact, the trial court

cited this when the medical defendants wanted to use Dr. Haag's

findings, concluding it would be duplicative and they could argue

their defense theory based on Dr. Cooley's testimony.

- 39 -

The problem with the defense theory, however, which

makes the missing reports of finger dislocation by the radiolo-

gists of little relevancy, is the fact the radiologists were not

asked to look for a dislocation but to confirm the right forearm

fracture. Dr. Cooley testified it was much easier for radiolo-

gists to spot things on film when they were looking for them.

Additionally, neither radiologist saw plaintiff in person, and

Dr. Nord, rather than rely on a radiologist's report, read the X

rays himself. In addition, what defendants really sought to do

was argue, "If the radiologists didn't see it, then the orthope-

dist was not negligent for missing it." In essence, defendants

wanted to argue defendants met the standard of care because two

radiologists did not report the dislocation. However, no profes-

sional opinion testimony was offered to support this conclusion.

As noted above, the jury was required to rely on expert testimony

to determine the standard of care.

The medical defendants were allowed to argue the

presentation of plaintiff's dislocation was unusual and, thus,

difficult to see on the X rays, and, in fact, it was missed by a

radiologist before Dr. Nord saw her. However, Dr. Nord treated

plaintiff extensively over a period of several months. Evidence

showed at least 13 office visits between plaintiff and Dr. Nord.

The radiologists may have missed the dislocation on the X rays,

but Dr. Nord was presented with a patient who had a badly swollen

- 40 -

hand and testified she reported pain in her hand and fingers with

every office visit. Dr. Nord was also able to palpate plain-

tiff's hand on each visit. Although Dr. Nord denies the reports

of pain and there is no record of them in his office notes, Dr.

Nord was presented with many more opportunities and reasons to

review the X-ray film, looking for injuries besides the forearm

fracture, than were the radiologists. Thus, comparing the

radiologists' reports which missed the finger dislocation with

the opportunities Dr. Nord had to diagnose the dislocation is

similar to a comparison of apples and oranges, making the radiol-

ogy reports, for the most part, irrelevant. (This would be

similar to Franklin offering testimony that a professional race-

car driver also failed to yield at the same intersection where

this collision occurred. That someone with arguably greater

skill was also negligent is not a legitimate defense.) Further,

Dr. Nord did not rely on the radiologist's report prior to

performing the initial surgery. He read the X rays taken in

Springfield himself, as he does with all of his orthopedic

patients.

Dr. Cooley's testimony was presented at trial via an

evidence deposition. The excluded portion of his testimony

pertained to the standard of care for a well-qualified radiolo-

gist and was not relevant to this case.

The medical defendants were not kept from arguing their

- 41 -

defense to the jury, and only irrelevant evidence was kept from

the jury by the trial court. We find no abuse of discretion.

C. Errors in Opening Statement and Closing Arguments

1. Mention of Plaintiff's Miscarriage in Opening Statement

Although plaintiff incurred a miscarriage after the

automobile accident, no recovery was sought for it. Nonetheless,

during opening statement, plaintiff's counsel told the jury

plaintiff had a miscarriage after the accident. The medical

defendants contend this was an attempt to create sympathy and

prejudice in the minds of the jurors.

Objection was made by Franklin's counsel but not

counsel for the medical defendants. The objection was sustained

and the medical defendants made a motion in limine to bar further

mention of the miscarriage. The motion was granted and the

parties abided by the ruling.

Because no objection was made by the medical defendants

nor did they join in or adopt Franklin's objection, the issue

could be considered forfeited. See Brown v. Timpte Inc., 137

Ill. App. 3d 1053, 1062-63, 485 N.E.2d 488, 494 (1985). However,

as this case is being reversed and remanded, we will consider

this issue.

An opening statement is intended to inform jurors of

the nature of the action and to provide an outline of what

counsel expects admissible evidence at trial to show so the

- 42 -

jurors can better understand testimony they will hear during

trial, but no statement may be made in opening which counsel does

not intend to prove. Gillson v. Gulf, Mobile & Ohio R.R. Co., 42

Ill. 2d 193, 196-97, 246 N.E.2d 269, 272 (1969). Statements made

by counsel in opening statement are improper if they are not in

good faith and are prejudicial. Surestaff, Inc. v. Open Kitch-

ens, Inc., 384 Ill. App. 3d 172, 174, 892 N.E.2d 1137, 1140

(2008).

Plaintiff argues the comments of counsel were factually

accurate as the Memorial records reflect plaintiff was pregnant.

Further, Dr. Nord was expected to introduce the testimony of Dr.

Pickett by means of video evidence deposition. His testimony at

the deposition included this question and answer:

"Q. Okay. What was the next thing you

did?

A. Well, seeing the patient's

complaint, apparently[--]it's patient had a

history that she is five weeks pregnant and I

ordered a pregnancy test and a CBC and proba-

bly simultaneously with that obtained consul-

tation from orthopedic service."

After the medical defendants' motion in limine, this testimony

was stricken from the deposition. But plaintiff argues she had

no way of knowing this at the time her counsel made his opening

- 43 -

statement.

As plaintiff never sought recovery of damages as a

result of her miscarriage, it is wholly irrelevant and prejudiced

the medical defendants. Plaintiff's counsel had no reason to

tell the jury about it in opening statement. It was simply a

subtle attempt to appeal to the emotions of the jury, which

constitutes error. See First National Bank of La Grange v. Glen

Oaks Hospital & Medical Center, 357 Ill. App. 3d 828, 833, 829

N.E.2d 378, 385 (2005).

Even without the existence of a motion in limine,

comments concerning plaintiff's miscarriage have no place in

statements by counsel.

2. Plaintiff's Counsel Stated During Closing

Argument Plaintiff Did Not Have the Burden

of Separating Damages for Arm and Finger

During closing argument, plaintiff's counsel quoted the

jury instruction defining "proximate cause" and then went into

the complained-of argument:

"When I use the expression, quote, 'proximate

cause,' unquote, I mean any cause which in

the natural and ordinary course of events

produced the [p]laintiff's injury. It need

not be the only cause, nor the last, nor the

nearest cause. It is sufficient if it con-

curs with some other cause acting at the same

- 44 -

time which in combination with it causes the

injury.

In other words, [plaintiff] does not

have the obligation to try to parse her in-

jury. She does not have the obligation, the

law does not place a burden on her, to demon-

strate which of these injuries is due exclu-

sively to a motor vehicle accident, how much

of it is due to Dr. Nord's negligence. The

[p]laintiff does not have that burden, be-

cause proximate cause is defined, and both of

these [d]efendants contributed and proxi-

mately caused the injuries that we now have."

The medical defendants objected to this argument as a

misstatement of the law, implying plaintiff did not have the

burden to show proximate cause but defendants had that burden.

The objection was sustained.

Plaintiff's counsel then continued his argument:

"Yeah, I didn't say we don't have the burden

to show what proximate cause is, what I said

was [p]laintiff doesn't have the burden to

separate the injuries out and to separate the

medical bills out. That's what I am saying."

The medical defendants objected again, arguing plaintiff did have

- 45 -

the burden to separate her medical bills for each injury. The

objection was sustained.

The medical defendants argue the law is clear, even if

plaintiff demonstrated they had breached the standard of care

with respect to a late diagnosis of the dislocated finger, they

could not be held responsible for injuries resulting from plain-

tiff's arm fracture.

The purpose of closing argument is to draw reasonable

inferences from the evidence and assist the jury in arriving at a

verdict based on the law and the evidence. Copeland v. Stebco

Products Corp., 316 Ill. App. 3d 932, 948, 738 N.E.2d 199, 213

(2000). The medical defendants argue an appeals court has the

discretion to grant a new trial based on improper closing argu-

ment. See Regan v. Vizza, 65 Ill. App. 3d 50, 54, 382 N.E.2d

409, 412 (1978). However, where the trial court sustains an

objection to improper argument by counsel, any error is consid-

ered cured and, if the trial was fair as a whole and the evidence

sufficient to support the verdict, the judgment will not be

reversed on appeal. See Lecroy v. Miller, 272 Ill. App. 3d 925,

933-34, 651 N.E.2d 617, 622 (1995).

First, we note plaintiff did not "repeatedly" argue to

the jury she did not have the burden of separating her damages as

argued by the medical defendants. However, as noted in our

discussion concerning the erroneous verdict form used in this

- 46 -

trial, plaintiff did have the burden to separate her damages

between her forearm and her index finger. Thus, her counsel's

argument was objectionable and the trial court was correct to

sustain the medical defendants' objection to it (even though it

erroneously refused the medical defendants' proffered jury-

instruction verdict form).

3. Franklin's Counsel Questioned Dr. Nord

Operating on Plaintiff's Hand

Counsel for Franklin argued in closing argument:

"Another problem I have is you know, this

thing goes on for six months, and the physi-

cal therapist does diagnose it by palpation

the first time she sees the patient. What

does Dr. Nord do? He operates on the finger.

He is not a hand surgeon. Why does he oper-

ate on that hand and then later send her to

the expert, Dr. Lee?"

Counsel for the medical defendants moved to strike this argument

as not relevant. Franklin's counsel contended this was not

argument but only a statement. The trial court stated it was an

argument but overruled the objection.

Franklin's counsel then stated:

"As I said, there's a lot of issues and a lot

of speculation that we don't need to get

into, I'm just pointing out the facts."

- 47 -

The medical defendants contend Franklin's counsel knew

this argument was objectionable. Plaintiff's counsel attempted

to question Dr. Nord during the trial about why he performed the

first hand surgery instead of sending plaintiff to a specialist

immediately. The trial court sustained the medical defendants'

objection. Plaintiff's counsel argued at that time the question

went to the credibility of Dr. Nord because medical-malpractice

defendants often tried to correct the problem without anyone else

ever knowing about it. The medical defendants argued no expert

testified anything was wrong with Dr. Nord's surgery on plain-

tiff's hand nor were any allegations made to that effect. In

fact, Dr. Rotman, plaintiff's expert, stated he had no criticisms

of Dr. Nord's surgeries. He did not state the opinion Dr. Nord

should have referred plaintiff to Dr. Lee earlier.

Although Franklin's cross-claim did contain an allega-

tion Dr. Nord not only failed to properly diagnose plaintiff's

hand injury, but also failed to properly treat the injury, no

evidence was presented at trial as to the appropriate standard of

care for hand surgery and whether Dr. Nord, an orthopedic sur-

geon, breached that standard of care. Counsel's follow-up

statement to the jury, that there was a lot to speculate about

but he was just stating the facts, did not negate the suggestion

Dr. Nord may not have properly treated plaintiff's hand injury

once he did diagnose it. As no evidence supported counsel's

- 48 -

"speculation," it was error to include it in his closing argument

and the medical defendants' objection to it should have been

sustained.

III. CONCLUSION

For the above reasons, we reverse the trial court's

judgment and remand the cause for a new trial.

Reversed and remanded.

STEIGMANN, J., concurs.

MYERSCOUGH, P.J., dissents.

- 49 -

Plaintiff's No. 9:

VERDICT FORM A

We, the jury, find for Dawn Auten and against the

following defendants:

Christine Franklin Yes _______ No _______

Larry Nord, M.D. and

Central IL Orthopaedic Surgery Yes _______ No _______

We further find the following:

First: That the total amount of damages suffered by Dawn

Auten as a proximate result of the occurrence in question is

$___________, itemized as follows:

The reasonable expense of necessary medical

care, treatment, and services received $__________

The disfigurement resulting from the injury $__________

The pain and suffering experienced and

reasonably certain to be experienced in the

future as a result of the injuries $__________

The disability experienced and reasonably

certain to be experienced in the future $__________

PLAINTIFF'S TOTAL DAMAGES: $__________

Second: Assuming that 100% represents the total combined

fault of all persons or entities whose fault proximately caused

Dawn Auten f/k/a/ Dawn Barnett's injury, including any defendant

whom you have found liable, we find the percentage of fault

attributable to each as follows:

(a) Christine Franklin _____%

(b) Larry Nord, M.D./Central IL Orthopaedic Surgery _____%

TOTAL 100%

If you find either defendant not liable to the plaintiff,

then you should enter zero (0) as to that defendant.

Third: We award Dawn Auten recoverable damages in the

- 50 -

amount of $___________.

- 51 -

Medical defendants' No. 29A:

VERDICT FORM A

Does the jury find for Dawn Auten and against Christine

Franklin for injuries which the plaintiff suffered to her right

forearm?

Christine Franklin Yes _____ No _____

We find the total amount of damages suffered by Dawn Auten

as a proximate result of the injuries to her right forearm is

$_____________, itemized as follows:

The disfigurement resulting from the

injury: $__________

The disability experienced and rea-

sonably certain to be experienced in

the future: $__________

The pain and suffering experienced

as a result of the injuries: $__________

The reasonable expense of necessary

medical care, treatment and services $________-

received: __

PLAINTIFF'S TOTAL DAMAGES FOR INJU-

RIES TO HER RIGHT FOREARM: $__________

Does the jury find for Dawn Auten and against the following

defendant(s) for injuries which the plaintiff suffered to her

right index finger?

Christine Franklin Yes _____ No _____

Larry Nord, M.D./Central IL

Orthopedic Surgery, S.C. Yes _____ No _____

We find the total amount of damages by Dawn Auten as a

proximate result of the injuries to her right index finger is

$__________, itemized as follows:

The disfigurement resulting from the The reasonable

injury: expense of neces-

sary medical care,

The disability experienced and rea- treatment and ser-

sonably certain to be experienced in vices received:

the future:

The pain and suffering experienced $__________

as a result of the injuries:

- 52 -

$__________

$__________

$__________

$__________

PLAINTIFF'S TOTAL DAMAGES FOR INJU-

RIES TO HER RIGHT INDEX FINGER:

Assuming that 100% represents the total combined negligence

of all persons whose negligence proximately caused Dawn Auten's

right index finger injury, we find that the percentage of negli-

gence attributable to each as follows:

Christine Franklin _____%

Larry Nord, M.D./Central IL Orthopedic

Surgery, S.C. _____%

TOTAL 100%

(Instructions to Jury: If you find any defendant not liable to

the plaintiff for her finger injury, then you should enter a zero

percent (0%) as to that person or persons.)

- 53 -

PRESIDING JUSTICE MYERSCOUGH, dissenting:

I respectfully dissent. I disagree that reversible

error occurred in closing arguments. Further, I believe Drs.

Cooley's and Haag's testimony should have been allowed in full

but do not believe the court's ruling constituted reversible

error. More important, the trial court did not abuse its discre-

tion by giving IPI Civil (Supp. 2008) No. B45.03.A, the jury was

not misled by this instruction, and the medical defendants were

not prejudiced by this instruction. I would affirm.

The given instruction accurately stated the law. Buka,

386 Ill. App. 3d at 179, 897 N.E.2d at 896 (a trial court must

use the IPI instruction unless it does not accurately state the

law). The instructions clearly directed the jury to determine

the total amount of damages suffered by plaintiff and to appor-

tion each defendant's degree of fault:

"If you decide for the plaintiff on the

question of liability, you must then fix the

amount of money which will reasonably and

fairly compensate her ***."

"[Y]ou must apportion damages by determin-

ing the relative degree of fault, if any, of

each person *** named or described on the

verdict form."

The instructions clearly established that the rights of defen-

- 54 -

dants, Franklin and Nord, are separate and distinct from one

another:

"The rights of the defendants, Christine

Franklin[] and Larry Nord, M.D., are separate

and distinct from one another. Each defen-

dant is entitled to a fair consideration of

his or her own defense and you will decide

each defendant's case separately as if it

were a separate lawsuit. Each defendant's

case must be governed by the instructions

applicable to that case."

Though proposed instruction No. 29A introduced by defendant Nord

more fully states the law, that is not the test here.

Even if we accept the majority's proposition that the

IPI instruction was faulty and did not accurately state the law,

that instruction is still appropriate as it did not mislead the

jury or result in prejudice to the medical defendants, a prereq-

uisite for reversal. See People v. Rodriguez, 387 Ill. App. 3d

812, 821, 901 N.E.2d 927, 936 (2008) (the reviewing court will

not reverse, even if the instruction was faulty, unless the

instruction "clearly misled the jury and resulted in prejudice to

the appellant"). Indeed, verdict form A clearly provided the

jury opportunity to find each defendant responsible for none,

part, or all of plaintiff's injuries:

- 55 -

"We, the jury, find for Dawn Auten and

against the following defendants: Christine

Franklin[:] Yes ___ No ___[;] Larry Nord,

M.D. and Central IL Orthopaedic Surgery[:]

Yes ___ No ___[.] *** Assuming that 100%

represents the total combined fault of all

persons or entities whose fault proximately

caused Dawn Auten f/k/a Dawn Barnett's in-

jury, including any defendant whom you have

found liable, we find the percentage of fault

attributable to each as follows: (a)

Christine Franklin ___% (b) Larry Nord,

M.D./Central IL Orthopaedic Surgery ___%[.]"

Verdict Form B allowed a determination on the counterclaim filed

by defendant Nord against defendant Franklin:

"We, the jury, find for defendant, Larry

Nord, M.D.[,] and Central Illinois Orthopedic

Surgery, S.C.[,] and against the plaintiff

and [c]ounter[-p]laintiff, Christine Frank-

lin."

Though no separate verdict form was provided with

regard to the counterclaim filed by Franklin against Nord, the

jury instructions nevertheless provided more than adequate direc-

tion to make the jury aware of Franklin's counterclaim, and the

- 56 -

simplified verdict form that was given allowed sufficient oppor-

tunity for the jury to make a determination as to all claims and

counterclaims. Additionally, the IPI comments reaffirm that IPI

Civil (2006) B45.03.A should be given in this case:

"This verdict form is identical to IPI.

B45.03.A with the exception of the addition

of paragraph 'Second' providing for findings

for or against third-party defendants. For

cases involving contribution counterclaims

among defendants, tried concurrently with the

plaintiff's claim, use B45.03A. For contri-

bution claims which involve third-party com-

plaints use this instruction." (Emphasis

added.) Illinois Pattern Jury Instructions,

Civil, No. 600.14, Notes on Use, at 627-28

(2006).

I recognize plaintiff's counsel argued, during closing

argument, that plaintiff did not have the burden of demonstrating

which of her injuries were due exclusively to the motor-vehicle

accident and which were due to the medical defendants. However,

defense counsel objected to this line of argument, and the objec-

tion was sustained. Nevertheless, plaintiff ultimately argued

correctly, and the jury was properly instructed to make a deter-

mination about the doctor's failure to diagnose the finger, not

- 57 -

the forearm:

"The plaintiff claims that she was injured

and sustained damage, and that the defendant,

Christine Franklin, was negligent in one or

more of the following respects:

(a) *** [F]ailing to yield ***;

(b) Failing to keep a proper lookout

for other traffic;

(c) Failing to keep the vehicle she was

operating under proper control.

The plaintiff further claims that one or

more of the foregoing was a proximate cause

of [her] injuries.

The defendant, Christine Franklin, denies

that she was negligent.

* * *

The plaintiff also claims that she suf-

fered injury to her right index finger and

sustained damage, and that defendant, Larry

Nord, was professionally negligent in one or

more of the following respects:

(a) Failing to perform an adequate and

thorough examination of plaintiff;

(b) Failing to order the appropriate

- 58 -

[X]-rays;

(c) Failing to diagnose the dislocation

of plaintiff's index finger; and

(d) Failing to properly treat plain-

tiff's dislocated index finger.

The plaintiff further claims that one or

more of the foregoing was a proximate cause

of her injuries.

Defendant, Larry Nord, denies that he did

any of the things claimed by the plaintiff,

denies that he was negligent, and denies that

any claimed action or omission on his part

was a proximate cause of plaintiff's inju-

ries.

* * *

Defendant, Christine Franklin, counter-

claims that she is entitled to contribution

from co[d]efendant, Larry Nord, for one or

more of the following acts:

(a) Failing to perform an adequate and

thorough examination of plaintiff;

(b) Failing to order the appropriate

[X]-rays;

(c) Failing to diagnose the dislocation

- 59 -

of plaintiff's index finger; and

(d) Failing to properly treat plain-

tiff's dislocated index finger.

Defendant, Larry Nord, denies that he did

any of the things claimed by Christine Frank-

lin, denies that he was negligent, denies

that he contributed to plaintiff's injuries,

and denies that any claimed act or omission

on his part was a proximate cause of the

plaintiff's claimed injuries.

Defendant, Larry Nord, counterclaims that

he is entitled to contribution from defen-

dant, Christine Franklin, for one or more of

the following negligent acts and/or omis-

sions:

(a) Failing to operate the automobile

in a safe and cautious manner;

(b) Failing to keep a safe and careful

lookout for other traffic;

(c) Failing to stop the automobile or

to apply the brakes on the automo-

bile in time to avoid colliding with

another automobile;

(d) *** [F]ailing to yield ***.

- 60 -

Christine Franklin denies that she was

negligent."

In these instructions, the trial court specifically

instructed the jury that plaintiff claimed she suffered injury to

her right index finger due to the medical defendants' negligence,

and the reviewing court must assume the jury followed the jury

instructions. See, e.g., People v. Platter, 89 Ill. App. 3d 803,

820, 412 N.E.2d 181, 194 (1980) ("The jury was properly in-

structed on the crime of involuntary manslaughter, and we will

assume that the jury followed the instructions that were given").

The jury was also correctly instructed that defendant

Franklin was responsible for damages resulting from Nord's ac-

tions.

"If a defendant negligently causes injury

to the plaintiff, then the defendant is lia-

ble not only for the plaintiff's damages re-

sulting from that injury, but is also liable

for any damages sustained by the plaintiff

arising from the efforts of health[-]care

providers to treat the injury caused by the

defendant[,] even if that health[-]care pro-

vider was negligent."

See Illinois Pattern Jury Instructions, Civil, No. 30.23 (2006).

Further, when apportioning the degree of fault, the

- 61 -

jury clearly considered that the medical defendants were only

responsible for the injury to plaintiff's right index finger

caused by their negligence. In fact, the evidence supports the

jury's verdict that the medical defendants were responsible for

25% of plaintiff's damages. According to plaintiff's exhibit F,

the medical bills related to treatment for (1) the arm injury

alone totaled $24,252.42, (2) the finger injury alone totaled

$47,035.14, and (3) the arm and finger injury together totaled

$36,500, for a grand total of $107,788.54 in medical bills. (The

jury awarded $107,000 for the reasonable expense of necessary

medical care.) Moreover, the evidence indicated that the resid-

ual damage to the right index finger was greater than the injury

to her arm. Additionally, plaintiff had significant pain and

dysfunction associated with the injury to her right index finger,

while she had little discomfort or dysfunction with her arm.

Without even taking into account the medical bills for

the arm and finger injuries, the medical expenses plaintiff

incurred solely for the injury to the right index finger

($47,035.12) are approximately twice as high as the medical

expenses for the arm injury alone ($24,252.42). (Combined medi-

cal expenses for the arm and finger injuries totaled $36,500.98.)

Yet, the jury assessed against the medical defendants 25% of

plaintiff's total damages (25% of $307,000), which totals $76,75-

0. That amount comports with the evidence of injury to the index

- 62 -

finger for which the medical defendants were responsible.

The jury's verdict clearly does not suggest the jury

was misled by the evidence, closing argument, or IPI Civil (Supp.

2008) No. B45.03.A. Indeed, Illinois Supreme Court Rule 239(a)

states the IPI Civil are sufficient and not misleading: "Whenever

Illinois Pattern Jury Instructions (IPI) contains an instruction

applicable in a civil case, giving due consideration to the facts

and the prevailing law *** the IPI instruction shall be used

***." 177 Ill. 2d R. 239(a). As "[a] reviewing court ordinarily

will not reverse a trial court for giving faulty instructions

unless [the instructions] clearly misled the jury and resulted in

prejudice to the appellant," the trial court's ruling should be

affirmed. Schultz v. Northeast Illinois Regional Commuter R.R.

Corp., 201 Ill. 2d 260, 274, 775 N.E.2d 964, 973 (2002).

The majority raises the unspoken spectre in this case--

the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 through

100/5 (West 2008))--and the fact defendant Nord may be responsi-

ble for more than his assessed percentage of fault due to defen-

dant Franklin's unknown settlement for policy limits referenced

on oral argument. However, that matter is not before this court

and does not justify reversing an appropriate jury award. The

jury made the appropriate calculations and allocations on this

record. This was not "rocket science"--the jury considered the

evidence and correctly apportioned liability between the parties.

- 63 -

We should not now second-guess the jury's abilities with

hypotheticals and evidence not in the record.

The majority argues defendant Nord ought not have

liability for the forearm. We do not know that he does. That is

a matter between the joint tortfeasors and is the reason for the

Contribution Act. 740 ILCS 100/2(a), (b) (West 2008). Defendant

Nord has a right to an offset for the amount of defendant Frank-

lin's settlement. Franklin must obtain from the trial court

approval of the settlement as being in good faith before she can

be released and dismissed. That is defendant Nord's protection

here, as set forth by the legislature in the statute. This is

not a wrong that needs to be addressed by this court based on the

record and these instructions.

It is also of no matter that the settlement was reached

after the jury verdict. See Ziarko v. Soo Line R.R. Co., 161

Ill. 2d 267, 286, 641 N.E.2d 402, 411 (1994) (holding that,

because "jury verdicts may be modified, reduced, or vacated on

post[]trial motion or on appeal," the court "do[es] not believe

*** the parties should be obligated to accept the verdict amount

as the final determination of the defendants' common liability to

the plaintiff to be reflected in a post-judgment settlement

agreement"). Nor does plaintiff's settlement with defendant

Franklin hinder plaintiff's right to enforce the judgment against

defendant Nord. See Henry v. St. John's Hospital, 138 Ill. 2d

- 64 -

533, 541, 563 N.E.2d 410, 414 (1990) (holding "that an injured

party does not waive the right to enforce a judgment against a

jointly and severally liable tortfeasor by settling with another

joint tortfeasor").

Concededly, the proposed instruction is a good one, and

it would not have been error for the trial court to have given

that instruction. However, the instruction given was also prope-

r, and the court did not abuse its discretion by giving the IPI

instruction. For these reasons, I would affirm.

- 65 -