Taylor v. County of Cook

ILLINOIS OFFICIAL REPORTS

Appellate Court

Taylor v. County of Cook, 2011 IL App (1st) 093085

Appellate Court RAVEN TAYLOR, Plaintiff-Appellant, v. THE COUNTY OF COOK,

Caption a Body Politic, d/b/a John H. Stroger, Jr. Hospital, and OAK FOREST

HOSPITAL, VIGNESH NARAYANAN, JANE PERRIN, SARITA

BAJRACHARYA, JOEL BLOCK, AUGUSTINE MANADAN,

SERGEY FURMANOV, THERESA McCARTHY, ERNEST CHENG,

and MIA MARIKA G. LAZO, Defendants-Appellees.

District & No. First District, Fourth Division

Docket No. 1-09-3085

Filed July 21, 2011

Held The verdict for defendants in a medical malpractice action alleging

(Note: This syllabus negligent treatment was affirmed where the trial court did not abuse its

constitutes no part of discretion in various evidentiary rulings relating to the parties’ experts or

the opinion of the court in modifying instructions dealing with inconsistent witness conduct and

but has been prepared the adjustment of verdict awards.

by the Reporter of

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 06-L-004953; the

Review Hon. Donald J. O’Brien, Judge, presiding.

Judgment Affirmed.

Counsel on Raymond & Raymond, Ltd., of Schaumburg (Patricia E. Raymond and

Appeal Clark M. Raymond, of counsel), for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr.,

Jeff McCutchan, William Buenger, Sharon Opryszek, and Sandra Weber,

Assistant State’s Attorneys, of counsel), for appellees County of Cook,

Augustine Manadan, and Sergey Furmanov.

Anderson, Rasor & Partners, LLP, of Chicago (Susan M. Hannigan, of

counsel), for appellee Joel Block.

Panel JUSTICE STERBA delivered the judgment of the court, with opinion.

Justices Pucinski and Salone concurred in the judgment and opinion.

OPINION

¶1 In this medical malpractice case based on doctors’ negligence, the jury found in favor of

defendant doctors Joel Block, Augustine Manadan and Sergey Furmanov and defendant

Cook County Hospital. Plaintiff Raven Taylor appeals the circuit court’s evidentiary rulings

claiming that the errors resulted in prejudice and affected the outcome of her case. Taylor

claims that the circuit court abused its discretion when it: (1) barred cross-examination of an

expert witness concerning personal practice in treating patients diagnosed with polymyositis;

(2) allowed Dr. Block’s expert to testify regarding the applicable “standard of care” despite

the expert’s lack of understanding of the term “standard of care”; (3) allowed multiple

experts to testify regarding the standard of care, causation and damages on the defendants’

collective behalf; and (4) allowed defendants’ experts to testify in violation of Illinois

Supreme Court Rule 213(f) (eff. Jan. 1, 2007). Taylor also claims that the circuit court erred

when it ruled that Taylor raised a new claim of lack of informed consent during trial. Taylor

further claims that the circuit court erred in limiting the admissibility of her expert’s

testimony since the testimony was a logical corollary to disclosed opinions. Regarding the

jury instructions, Taylor claims that the circuit court abused its discretion in modifying two

instructions, which dealt with inconsistent witness conduct and adjustment of verdict awards.

Taylor’s last claim is that the errors deprived her of a fair trial. For the reasons stated below,

we affirm.

-2-

¶2 I. BACKGROUND

¶3 The following facts are relevant to the instant appeal. In May 2005, Dr. Furmanov was

a rheumatology fellow at the Cook County Hospital Rheumatology Clinic. Dr. Block

supervised Dr. Furmanov in May 2005. Dr. Manadan supervised Dr. Furmanov in June 2005.

In May 2005, Taylor was diagnosed with severe polymyositis, which is an inflammation of

the muscles and results in weakened muscles. Defendant doctors diagnosed Taylor and began

treating her for the condition. Taylor’s polymyositis rapidly progressed, leaving her with

permanent disabilities.

¶4 On May 11, 2006, Taylor filed an 11-count complaint. Taylor filed an amended four

count complaint on April 20, 2009, which included the following counts: (1) negligence:

Cook County Hospital; (2) negligence: Joel Block; (3) negligence: Augustine Manadan; and

(4) negligence: Sergey Furmanov.

¶5 Taylor’s jury trial took place from April 15, 2009, through May 6, 2009. Before the trial

began, the parties filed motions in limine. Dr. Block filed a motion in limine to bar cross-

examination of his expert, Dr. Amato, regarding his personal practice in treating patients

with polymyositis. The circuit court granted this motion. Taylor filed a motion in limine to

bar defendants’ experts’ testimony on the basis that the testimony was cumulative and the

defense was aligned. Taylor claimed that the testimony regarding causation and standard of

care would be cumulative and overwhelming because testimony regarding those issues would

be provided by the defendants’ three experts, the defendant doctors individually and three

doctors employed at defendant hospital. Thus, Taylor claimed that each defendant would

have nine doctors testifying regarding the standard of care. The circuit court denied this

motion.

¶6 During the trial, Taylor testified on her behalf. Taylor called Dr. Anthony Bohan, as an

expert, to testify regarding the standard of care defendants provided to Taylor and in treating

polymyositis. Taylor’s and Dr. Bohan’s testimony is summarized below. Defendant Cook

County Hospital called Dr. Oddis as an expert, and Dr. Block called Dr. Wortmann and Dr.

Amato as experts. Defendants’ experts testified regarding the applicable standard of care in

treating polymyositis, and on the issues of causation and damages. Defendants’ experts’

testimony is summarized below.

¶7 During trial, Taylor testified that she was 19 years old in the spring of 2005 and was

attending Butler University located in Indianapolis. Taylor went to the emergency room in

March 2005 because she had a migraine and was losing her peripheral vision. Taylor was

sent home with ibuprofen. Taylor began struggling to get to her class on the third floor of a

building when she took the stairs carrying her backpack. Approximately two weeks later after

returning to the Chicago area, Taylor went to Oak Forest Hospital because she was very stiff

and her joints and knees hurt. The hospital admitted Taylor and she stayed there for two or

three days. Taylor was discharged from the hospital and returned to school. The doctor at

Oak Forest Hospital scheduled an appointment for Taylor at the gastrointestinal clinic at

Cook County Hospital on April 22, 2005. Taylor went to the appointment and stated that she

was achy and that her joints and body were hurting. Taylor returned to Cook County Hospital

on April 26, 2005, and described the same ailments to the doctors. Taylor again returned to

-3-

Cook County Hospital on May 3, 2005, but this time she was accompanied by her aunt,

Gwendolyn Johnson. When they arrived at the clinic, Johnson retrieved a wheelchair for

Taylor because she was walking very slowly. On May 4, 2005, Taylor was admitted into

Cook County Hospital. Taylor’s mom took her to the hospital because a doctor told Johnson

that Taylor’s kidneys were failing.

¶8 Taylor was admitted at Cook County Hospital from May 4 through May 10, 2005. During

her hospital admission, Taylor saw Dr. Furmanov twice, and she became more weak. Taylor

needed a muscle biopsy to confirm a diagnosis of polymyositis. While she was at Cook

County Hospital, Taylor received prednisone to treat the suspected diagnosis of polymyositis.

Doctors Block and Furmanov did not discuss other treatment options with Taylor. Taylor was

transferred to Oak Forest Hospital to receive in-patient physical therapy. Taylor’s diagnosis

of polymyositis was confirmed while she was at Oak Forest Hospital and she began doing

passive range of motion exercises.

¶9 Taylor visited the rheumatology clinic at Cook County Hospital on May 27, 2005.

Because Taylor was unhappy at Oak Forest Hospital, she asked Dr. Furmanov if she could

be discharged from that hospital. Dr. Furmanov agreed to the request since her family could

learn the daily activity care that she was receiving at Oak Forest Hospital. Dr. Furmanov

prescribed azathioprine as additional medicine and did not give her any other treatment

options. Taylor was discharged from Oak Forest Hospital on June 4, 2005. On approximately

June 10, 2005, Taylor returned to the rheumatology clinic at Cook County Hospital. Taylor

only remembers that she saw Dr. Manadan during this visit. Taylor testified that she has been

on steroids continuously since May 6, 2005.

¶ 10 Dr. Anthony Bohan testified as an expert on Taylor’s behalf. Dr. Bohan is a

rheumatologist who treats patients diagnosed with polymyositis. Dr. Bohan has experience

with hundreds of polymyositis cases throughout his career and has seen approximately five

severe polymyositis cases like Taylor’s. Polymyositis is a disease that occurs when the

immune system begins to attack the muscle fibers and causes inflammation of the muscles.

A patient who first develops polymyositis experiences weakness, tiredness and fatigue. When

the symptoms progress enough for the patient to visit a doctor, a doctor performs a blood

test. The results of the blood test reveals an increase in CPK enzymes in the bloodstream.

The CPK enzyme level informs the doctor that there is inflamation of the muscle because the

CPK enzymes leak out of the muscle fibers into the blood when there is inflammation or

damage to the muscle fibers. In severe polymyositis cases, muscle weakness develops very

rapidly and deteriorating muscle strength is apparent. The muscles in a severe polymyositis

case become swelled and inflamed, causing muscle pain. As the disease progresses, the

patient experiences difficulty breathing because the chest muscles do not have the strength

to expand the lungs, difficulty swallowing because the muscles in the esophagus do not work

and difficulty eating, requiring a gastric tube.

¶ 11 Dr. Bohan stated that a corticosteroid, such as prednisone, is commonly used to reduce

the muscle inflamation. Solu-Medrol is the intravenous (IV) form of prednisone and is

marginally stronger than prednisone. Immunosuppressive drugs suppress the immune system.

The drug Imuran and its generic equivalent azathoprine is also used to treat polymyositis, as

is the drug methotrexate, which are immunosuppressive drugs. Imuran takes months to work

-4-

and methotrexate works in weeks. Prednisone begins to work in four hours and in treating

polymyositis shows its effect within days. Providing Solu-Medrol or IV pulse therapy three

days in a row typically demonstrates effects in treating polymyositis within days.

¶ 12 Dr. Bohan testified that defendants breached the standard of care causing severe and

permanent injury to Taylor. When Taylor was seen at Cook County Hospital on May 4, 2005,

her illness had been progressing for approximately six weeks. While Taylor was admitted at

Cook County Hospital, the polymyositis progressed and her strength upon discharge to Oak

Forest Hospital deteriorated to essentially zero. Also during her admission at Cook County

Hospital, her CPK enzyme level “was hugely elevated,” denoting the fact that “very, very

aggressive inflammation going on in her muscles at that time.” Dr. Bohan also expressed the

opinion that the defendant Doctors Block and Furmanov did not render treatment to Taylor

on May 6, 2005, that complied with the standard of care because they prescribed 60

milligrams of prednisone even though she had an extraordinarily rapid and severe disease

that required much more aggressive treatment. Dr. Bohan opined that “the standard of care

required much more aggressive treatment, she should have been treated right off the bat day

one with at least 100 milligrams of Prednisone, not 60, maybe 120.” Dr. Bohan further

opined that “the standard of care required either intravenous high dose–very high dose

methylprednisolone, Medrol, Solu-Medrol, 1,000 milligrams IV for three days and/or–and/or

100 to 120 milligrams of Prednisone per day, that was the standard of care.” Dr. Bohan also

stated that immunosuppressives, such as methotrexate, should have been initiated within a

week of prescribing prednisone.

¶ 13 Dr. Bohan’s opinion was that Taylor’s transfer from an acute care hospital to a

rehabilitation facility worsened her condition. Dr. Bohan believed that continuous monitoring

by a rheumatologist at the time of transfer was critical. Dr. Bohan also stated that

rehabilitation doctors are experienced in providing rehabilitative care, but are not

experienced in treating a patient with polymyositis.

¶ 14 Dr. Bohan’s opinion was also that defendants deviated from the standard of care

following Taylor’s May 27, 2005, office visit. According to Dr. Bohan, the standard of care

required Dr. Furmanov to transfer Taylor back to Cook County Hospital for careful

monitoring and to increase the dosage of prednisone, as well as starting Taylor on

methotrexate, a more rapidly acting drug than Imuran, which the doctors prescribed for

Taylor. Dr. Bohan also expressed his opinion that due to the treatment that defendants

provided to Taylor, the polymyositis became more refractory to treatment and more damage

occurred to Taylor’s muscles. When a disease becomes refractory to treatment, the disease

is more difficult to bring under control at a later stage than it would have been if it was

treated at an earlier stage. When treating a patient, a window of opportunity to treat the

disease exists, and if the disease is untreated within that window, the disease becomes

refractory to treatment.

¶ 15 Dr. Chester Oddis testified on behalf of Cook County Hospital. Dr. Oddis specializes in

rheumatology with a special interest in myositis, which includes polymyositis. Dr. Oddis

testified that there are a variety of options to treat polymyositis, which is a rare disease. The

hallmark therapy is high-dose prednisone therapy. The disease could also be treated with an

intravenous steroid or with an immunosuppressive. Dr. Oddis testified that Doctors

-5-

Manadan, Block and Furmanov complied with the standard of care in treating Taylor.

Specifically, it was within the standard of care for Doctors Block and Furmanov to treat

Taylor with 60 milligrams of prednisone. Doctors Furmanov and Block also complied with

the standard of care when they allowed Taylor to transfer to Oak Forest Hospital for

rehabilitative treatment. Doctors Furmanov and Block also complied with the standard of

care on May 27, 2005, when they continued Taylor on 60 milligrams of prednisone and

added 100 milligrams of azathioprine. Dr. Oddis further opined that it would have been

within the standard of care to treat Taylor with methotrexate. During Taylor’s June 10, 2005

visit, it was within the standard of care for Doctors Manadan and Furmanov to maintain

Taylor on 60 milligrams of prednisone and increase the dosage of azathioprine from 100 to

150 milligrams.

¶ 16 During cross-examination, Dr. Oddis testified that when Taylor was transferred to Oak

Forest Hospital for rehabilitation, Doctors Block and Furmanov were required to provide

instructions to the rehabilitation facility regarding her care. The instructions regarding

physical therapy and the range of motion exercises would have been determined by the

rehabilitation specialists in conjunction with the rheumatologist. Dr. Oddis testified that the

standard of care required Doctors Block and Furmanov to inform the doctors at Oak Forest

Hospital that if Taylor’s condition deteriorated, they must call and inform the

rheumatologists of Taylor’s weakening condition. On redirect, Dr. Oddis clarified that the

decision of what type of therapy a polymyositis patient requires is not dictated by a

rheumatologist, but by the rehabilitation doctor who is specialized in treating patients with

neuromuscular diseases.

¶ 17 Dr. Robert Wortmann testified on behalf of Dr. Block. Dr. Wortmann practiced in

rheumatology with a special subinterest in crystal-induced arthritis and in diseases that affect

skeletal muscles. Dr. Wortmann testified that various options existed in 2005 to treat

myositis. According to Dr. Wortmann, the experts state that steroids are the first treatment

for myositis and the dosage ranges from 60 milligrams a day to 1 or 2 milligrams per

kilogram. Other options included treating the patient with IV steroids or use the combination

of steroids and a medicine such as azathioprine or methotrexate. Dr. Wortmann opined that

defendant Doctors Block and Furmanov complied with the standard of care in treating Taylor

from May 5 through May 27, 2005.

¶ 18 Dr. Anthony Amato testified through a videotaped evidence deposition on behalf of Dr.

Block. Dr. Amato’s speciality is in neurology, with a subspeciality in neuromuscular

medicine and neuromuscular disease. Polymyositis is a neuromuscular disease. In 2005,

multiple options existed within the standard of care to treat a patient with polymyositis. One

option was to treat the patient with 60 milligrams of prednisone, as defendant

rheumatologists did in treating Taylor. Other options included: (1) starting the patient with

100 milligrams of prednisone for two weeks and then reducing the treatment to every other

day; (2) starting the patient with Solu-Medrol IV for three days; (3) starting a second line

agent, such as Imuran or methotrexate; (4) starting treatment with mycophenolate mofetil;

and (5) starting IVIG therapy. Dr. Amato opined that Dr. Block complied with the standard

of care in treating Taylor in 2005. Dr. Amato elaborated that there is no one right way to treat

polymyositis nor are there two right ways to treat the disease because many treatment options

-6-

exist.

¶ 19 During cross-examination, Dr. Amato stated that the drug methotrexate was a treatment

option for Taylor. The side effects of methotrexate could have been discussed with Taylor.

Dr. Amato also stated that a reasonably well-qualified rheumatologist and/or neurologist

would be required to go over treatment options with Taylor.

¶ 20 Throughout the approximate three-week trial, numerous Rule 213 objections were raised

by both parties and the circuit court sustained some and overruled other objections. During

the jury instructions conference, the parties agreed that any instruction falling within the

numeric sequence of 1.01 through 3.01 would be obtained from the 1995 Illinois Pattern Jury

Instructions, Civil (IPI). Taylor proposed the following two pattern instructions:

(1) Illinois Pattern Jury Instructions, Civil, No. 3.01 (1995) (hereinafter, IPI Civil

(1995) No. 3.01), which states:

“The credibility of a witness may be attacked by introducing evidence that on

some former occasion the witness made a statement or acted in a manner

inconsistent with the testimony of the witness in this case on a matter material to

the issues. Evidence of this kind may be considered by you in connection with all

the other facts and circumstances in evidence in deciding the weight to be given

to the testimony of that witness.”

(2) Illinois Pattern Jury Instructions, Civil, No. 3.03 (Supp. 2008) (hereinafter,

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

“Whether a party is insured or not insured has no bearing on any issue that

you must decide. You must refrain from any inference, 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.”

¶ 21 The circuit court modified the above proposed instructions. In IPI Civil (1995) No. 3.01,

the circuit court deleted “or acted in a manner inconsistent” from the instruction. In IPI Civil

(Supp. 2008) No. 3.03, the circuit court deleted the last sentence of the instruction. The jury

found in favor of defendants on May 6, 2009. Taylor filed a posttrial motion on July 22,

2009, which the circuit court denied on October 2, 2009. Taylor timely appealed.

¶ 22 II. STANDARD OF REVIEW

¶ 23 A circuit court’s evidentiary rulings regarding the admissibility of testimony and on a

motion in limine are within its sound discretion and this court will not reverse such rulings

unless the circuit court abused its discretion. Davis v. Kraff, 405 Ill. App. 3d 20, 28 (2010).

A circuit court abuses its discretion when its ruling “is arbitrary, fanciful, unreasonable, or

where no reasonable person would take the view adopted by the trial court.” People v.

Caffey, 205 Ill. 2d 52, 89 (2001). An abuse of discretion standard is highly deferential to the

circuit court. Davis, 405 Ill. App. 3d at 28.

-7-

¶ 24 III. ANALYSIS

¶ 25 A. Expert Witness Testimony

¶ 26 On appeal, Taylor first raises four claims of error regarding the circuit court’s rulings on

the admissibility of defendants’ expert witness testimony. First, Taylor claims that the circuit

court abused its discretion in granting Dr. Block’s motion in limine to exclude the cross-

examination of Dr. Amato about his personal practice in treating a patient with severe

polymyositis. Taylor claims that Dr. Amato stated in his evidence deposition that treatment

with 60 milligrams of prednisone was within the standard of care, but stated in his discovery

deposition that he provides three-day IV pulse therapy to patients with severe polymyositis.

Taylor claims that the circuit court erred when it did not allow Taylor to impeach Dr. Amato

with his testimony that 60 milligrams of prednisone was within the standard of care, but in

his practice, he prescribes IV pulse therapy to patients with severe polymyositis.

¶ 27 The circuit court did not abuse its discretion in granting Dr. Block’s motion in limine

limiting Taylor’s cross-examination of Dr. Amato. During his evidence deposition, Dr.

Amato stated that multiple treatment options exist that comply with the standard of care to

treat a patient with severe polymyositis, which consisted of 60 milligrams of prednisone, 120

milligrams of prednisone and IV pulse therapy for three days. In treating his patients, Dr.

Amato prefers the pulse therapy treatment option. Taylor sought to impeach Dr. Amato based

upon his preference of using the pulse therapy to treat his patients exhibiting severe

polymyositis. Dr. Amato’s preference to use one of the three treatment options that he opined

is within the standard of care to treat polymyositis does not give rise to permissible

impeachment testimony. Dr. Amato’s preference for one method is not inconsistent with his

testimony that three treatment options exist, including his preferred option and the option

used by defendants.

¶ 28 Taylor’s reliance on Gallina v. Watson, 354 Ill. App. 3d 515 (2005), and Schmitz v.

Binette, 368 Ill. App. 3d 447 (2006), is misplaced. In Gallina, a medical expert testified that

his personal practice was to always treat type II fractures with surgery and the defendant

physician did not violate the standard of care by not performing surgery on the patient, who

had such a fracture. Gallina, 354 Ill. App. 3d at 521. This court held that the trial court

abused its discretion in excluding the testimony because the testimony was relevant in

establishing the expert’s credibility in rendering his opinion that the defendant physician

acted within the standard of care. Id. In Schmitz, the medical expert testified at trial that the

standard of care did not require a doctor to perform an indigo carmine dye test and that the

test was unreasonably dangerous and ineffective. Schmitz, 368 Ill. App. 3d at 461-62. During

his deposition, the medical expert stated that he personally performed the test “ ‘quite readily,

quite commonly.’ ” Id. at 461. This court held that the jury was entitled to hear the

inconsistent testimony, which may have provided additional insight to the jury regarding the

testimony. Id.

¶ 29 Here, the circuit court did not err in barring the cross-examination of Dr. Amato because

no inconsistent testimony exists and Dr. Amato’s credibility was not compromised based on

his testimony. Dr. Amato’s testimony that he would have treated Taylor using pulse therapy

-8-

is not inconsistent with his testimony that prescribing 60 milligrams of prednisone as

defendant doctors did to treat a patient with severe polymyositis was within the standard of

care. Unlike in Gallina, Dr. Amato did not state that he always uses the IV pulse therapy or

that he never uses the 60 milligrams of prednisone treatment provided by defendant doctors,

thereby raising a question concerning his credibility. Dr. Amato also did not testify that

treating a patient with pulse therapy was dangerous but that he nonetheless provides this

treatment to patients, thereby raising a credibility issue for the jury to decide as in Schmitz.

In light of the consistency in Dr. Amato’s testimony as to the treatment options considered

within the standard of care and his preference for one of the options, we conclude that the

circuit court did not abuse its discretion in granting defendant Dr. Block’s motion in limine

to exclude Dr. Amato’s personal practice testimony.

¶ 30 Taylor’s second claim of error is that the circuit court abused its discretion in admitting

Dr. Amato’s standard of care testimony because he incorrectly defined the phrase “standard

of care” during his discovery deposition. Taylor claims that to be consistent with Illinois

pattern jury instructions, “standard of care” should be defined as “what a reasonably careful

doctor would do or would not do under circumstances similar to those shown by the

evidence.” Taylor maintains that Dr. Amato’s definition of “standard of care” as “what a

reasonable physician might consider appropriate in terms of evaluation or treatment” was not

a correct definition because Dr. Amato did not include “in the same or similar

circumstances” in his definition. Taylor similarly contends that Dr. Amato’s definition was

incorrect because he defined the standard of care as “what a physician might do” instead of

“what a physician would do.” (Emphasis added.). Thus, Taylor claims that the jury should

not have considered Dr. Amato’s testimony regarding the “standard of care” because his

testimony was unreliable given his incorrect definition of “standard of care.” Taylor claims

that because Dr. Amato did not correctly define “standard of care,” he did not understand

what “standard of care” meant, rendering his testimony unreliable. Accordingly, Taylor

claims that the circuit court abused its discretion in allowing Dr. Amato to testify regarding

the standard of care in treating polymyositis.

¶ 31 The circuit court did not abuse its discretion in admitting Dr. Amato’s standard of care

testimony. Taylor’s complained-of definition of “standard of care” provided by Dr. Amato

was not submitted to the jury because it was stricken from Dr. Amato’s evidence deposition

and, thus, had no prejudicial impact upon the jury. Nonetheless, Taylor claims that Dr.

Amato’s standard of care testimony was unreliable because Dr. Amato misunderstood the

correct meaning of “standard of care.”

¶ 32 In medical negligence actions, the plaintiff bears the burden of establishing the standard

of care by which the defendant doctor’s conduct is to be measured against through expert

witness testimony. Advincula v. United Blood Services, 176 Ill. 2d 1, 24 (1996). For expert

testimony to be admissible, an adequate foundation must be laid establishing that the

information that the expert bases the opinion upon is reliable. Ford v. Grizzle, 398 Ill. App.

3d 639, 649 (2010). Expert testimony is admissible “if the proffered expert is qualified as an

expert by knowledge, skill, experience, training, or education and the testimony will assist

the trier of fact in understanding the evidence.” Matuszak v. Cerniak, 346 Ill. App. 3d 766,

771-72 (2004).

-9-

¶ 33 Here, the omission of “from similar circumstances” in Dr. Amato’s definition of

“standard of care” and use of the word “might” instead of “would” does not render his

testimony unreliable. Dr. Amato stated his qualifications in his evidence deposition,

including his education, training and experiences as a physician treating patients with

polymyositis. Ford, 398 Ill. App. 3d at 649. Dr. Amato based his testimony upon his

experience as a specialist who treats polymyositis, what he has taught about the disease and

what he has read through the literature. Dr. Amato’s definition of the term “standard of care”

and its failure to comply verbatim with the Illinois pattern jury instruction definition of the

term does not render an otherwise reliable testimony unreliable. Since Dr. Amato is a

medical physician who specializes in polymyositis, the circuit court did not abuse its

discretion in admitting his testimony regarding the standard of care. Moreover, Dr. Amato’s

definition of “standard of care” was not submitted to the jury and the circuit court read the

Illinois pattern jury instruction definition of “standard of care” to the jury. Thus, the jury

would not have been misled by Dr. Amato’s definition of “standard of care.”

¶ 34 Taylor’s third claim is that the circuit court erred in allowing defendants to elicit from

multiple expert witnesses the applicable standard of care and causation testimony. Taylor

contends that defendants’ expert doctors, Oddis, Amato and Wortmann, testified that

defendants all complied with the standard of care, and the experts all testified regarding

causation and damages. Taylor claims that because the defendants had an aligned defense,

expert testimony should have been limited based on the cumulative nature of the testimony.

Taylor also claims that an imbalance existed regarding the evidence presented at trial because

the circuit court granted defendants’ motion in limine to limit Taylor’s expert witnesses and

to limit Taylor’s aunt Johnson’s testimony. Taylor maintains that the impact of the expert

witnesses’ testimony collectively was overwhelming, especially given their qualifications and

the number of doctors permitted to testify resulting in prejudice to her case.

¶ 35 The circuit court did not abuse its discretion when it denied Taylor’s motion in limine to

bar defendants’ expert testimony on the basis that the testimony was cumulative. Although

Doctors Oddis, Wortmann and Amato testified regarding the standard of care provided by

defendants, Doctors Oddis’s and Wortmann’s speciality was rheumatology whereas Dr.

Amato’s speciality was neurology. Dr. Block named Dr. Wortmann and Dr. Amato as expert

witnesses and Cook County Hospital named Dr. Oddis as an expert witness. The testimony

of these doctors collectively was not overwhelmingly prejudicial to Taylor’s case.

¶ 36 When multiple defendants are named in a case, each defendant is entitled to present an

expert in defense of the case. Tsoukas v. Lapid, 315 Ill. App. 3d 372, 383 (2000). Two

rheumatologists provided expert testimony, but different defendants called these experts as

witnesses. Taylor also claims as error the circuit court allowing Dr. Block to testify on his

own behalf and stating that the treatment provided to Taylor was within the standard of care

for all of defendants. The circuit court did not abuse its discretion in allowing a defendant

to testify on his own behalf at trial. If Dr. Block’s testimony benefitted the other defendants

because he expressed his opinion that Taylor received medical care that complied with the

standard of care, the circuit court did not abuse its discretion by admitting the testimony

where multiple doctors cared for Taylor.

¶ 37 Dr. Oddis testified at trial on behalf of Cook County Hospital regarding the standard of

-10-

care provided by defendant doctors working at the hospital. Dr. Oddis testified that Doctors

Manadan, Block and Furmanov complied with the standard of care in 2005 when they treated

Taylor, and in starting treatment by prescribing 60 milligrams of prednisone. Dr. Oddis also

testified that it was within the standard of care for Doctors Furmanov and Block to transfer

Taylor to Oak Forest Hospital. Dr. Oddis further testified that it was within the standard of

care for Dr. Furmanov to continue Taylor on 60 milligrams of prednisone and adding 100

milligrams of azathioprine. Regarding the June 10, 2005 visit, Doctors Manadan and

Furmanov complied with the standard of care to maintain Taylor on 60 milligrams of

prednisone and increase the dosage of azathioprine from 100 to 150 milligrams. Allowing

Taylor to go home following the June 10, 2005, visit was also within the standard of care.

¶ 38 During trial, Dr. Wortmann testified as an expert witness on behalf of Dr. Block. Dr.

Wortmann testified that Doctors Block’s and Furmanov’s treatment of Taylor complied with

the standard of care. Dr. Wortmann testified that it was within the standard of care for

Doctors Block and Furmanov to recommend 60 milligrams of prednisone for Taylor on May

6, 2005. Dr. Wortmann further testified that it was within the standard of care for Dr.

Furmanov on May 27, 2005, to continue Taylor on prednisone at a dose of 60 milligrams and

adding azathioprine at a dose of 100 milligrams. Dr. Wortmann continued to testify that it

was within the standard of care for Dr. Furmanov to allow Taylor to return to Oak Forest

Hospital after her clinic visit on May 27, 2005.

¶ 39 Dr. Amato participated in an evidence deposition testifying on Dr. Block’s behalf. Dr.

Amato specializes in treating patients with myositis. Thus, Dr. Amato stated that he is

familiar with the standard of care applicable to a doctor diagnosing and treating a patient

with polymyositis. Dr. Amato indicated that based upon his review of all the material and his

background, training and experience, Dr. Block complied with the standard of care when he

treated Taylor in 2005. According to Dr. Amato, it was within the standard of care for

Doctors Block and Furmanov to recommend 60 milligrams of prednisone for Taylor on May

6, 2005. Dr. Amato stated that it was appropriate at the May 27, 2005 clinic visit for Dr.

Furmanov to recommend continuing prednisone at 60 milligrams and adding azathioprine.

Dr. Amato stated that it was within the standard of care for Dr. Furmanov to have Taylor

return to Oak Forest Hospital for continued therapy after the May 27, 2005 clinic visit.

¶ 40 Taylor claims that the above trial testimony in addition to defendants’ trial testimony

amounted to cumulative testimony because the testimony consistently demonstrated that

defendants’ actions were within the standard of care to treat an individual with polymyositis,

as well as presenting testimony as to causation. Dr. Block was the attending physician who

was overseeing Dr. Furmanov, a fellow, in May 2005. Dr. Manadan was the attending

physician overseeing Dr. Furmanov in June 2005. Doctors Oddis’s and Wortmann’s

testimony encompasses Doctors Block’s, Furmanov’s and Manadan’s actions regarding

compliance with the standard of care. Doctors Wortmann and Amato testified primarily as

to Doctors Block’s and Furmanov’s actions and the applicable standard of care. The

testimony, however, was not prejudicial since Doctors Block and Manadan, as attending

physicians, supervised Dr. Furmanov. Defendant doctors possess the right to present expert

testimony in their defense. Defendant hospital also had the right to call a witness to testify

regarding the standard of care in defense of the case. Here, three doctors are named as

-11-

defendants, and each defendant doctor has the right to present a defense. Tsoukas, 315 Ill.

App. 3d at 383. Accordingly, the circuit court did not abuse its discretion in permitting

defendants to establish a defense by presenting expert testimony regarding the standard of

care applicable in the instant case and as to the issue of causation.

¶ 41 Moreover, Taylor failed to establish an abuse of discretion regarding her claim that an

imbalance in the number of experts presented by the defense and her case was prejudicial.

Defendants exercised the right to call experts to testify in defense of the case. Taylor, as the

sole plaintiff, also had a right to present her case through expert testimony. During the course

of the trial, six treating physicians, four expert witnesses, a physical therapist and family

members testified on Taylor’s behalf. Taylor bears the burden of establishing the standard

of care through expert testimony. The circuit court allowed Taylor to call multiple witnesses

to meet that burden. No abuse of discretion occurred regarding the admission of expert

testimony or the number of witnesses Taylor and defendants were allowed to call to testify

at trial.

¶ 42 Taylor’s final claim of error is that the circuit court abused its discretion when it allowed

Doctors Manadan, Furmanov, Oddis and Wortmann to testify beyond Illinois Supreme Court

Rule 213 disclosures. Taylor maintains that the circuit court erred when it allowed the

testimony on the basis that the doctors’ testimony stated factual information and was not

opinion.

¶ 43 Rule 213(f)(3) requires parties to furnish and identify the following:

“(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.” Ill. S. Ct. R. 213(f)(3)

(eff. Jan. 1, 2007).

According to Rule 213(g), an expert’s opinions at trial are limited to the disclosures provided

in a Rule 213(f) interrogatory or during a discovery deposition. Ill. S. Ct. R. 213(g) (eff. Jan.

1, 2007). Information in an “evidence deposition not previously disclosed in a Rule 213(f)

interrogatory answer or in a discovery deposition shall not be admissible upon objection at

trial.” Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2007). An expert witness may expand upon a disclosed

opinion provided that the testimony states a logical corollary to the disclosed opinion and not

a new basis for the opinion. Cetera v. DiFilippo, 404 Ill. App. 3d 20, 37 (2010). The circuit

court did not abuse its discretion in admitting the testimony of Doctors Manadan, Oddis,

Wortmann and Furmanov since it complied with Rule 213’s requirements. Each of Taylor’s

Rule 213 claims of error is discussed below.

¶ 44 During Dr. Manadan’s discovery deposition, he stated that approximately 20% to 30%

of patients who have polymyositis would have residual weakness even after receiving some

treatment. During Dr. Manadan’s trial testimony, he testified that 20% to 30% of patients

with severe polymyositis may have some decrease in function, but the decrease is not

measurable on a strength grade table. The nature of Dr. Manadan’s trial testimony did not

depart in substance from his discovery deposition as both testimonies identify a percentage

of patients who experience residual deficits as a result of the disease. Dr. Manadan recited

a factual percentage representing a portion of patients diagnosed with severe polymyositis

-12-

who have deficits following treatment. Dr. Manadan’s testimony was factual and not an

opinion. Thus, the circuit court did not abuse its discretion in overruling Taylor’s Rule 213

objection and allowing Dr. Manadan’s statements into evidence.

¶ 45 Dr. Oddis’s testimony also complied with Rule 213 requirements. During trial, Dr.

Block’s counsel asked Dr. Oddis the following question: “[B]ased on your experience and

the body of knowledge that you’re familiar with, what are the expected outcomes for patients

with appropriately treated severe polymyositis?” The circuit court allowed the question over

Taylor’s Rule 213 objection because the answer “would be based on whatever he knows

about it.” Dr. Oddis responded that based on the literature, “the more severe the onset of

disease, the less favorable the outcome.” Dr. Oddis then continued to answer questions

discussing the mortality rate of patients with severe polymyositis. The Rule 213(f)(3)

interrogatories disclosed that Dr. Oddis “will discuss the fact that research and studies of the

disease show that certain persons who have the illness do not respond well to any of the

recognized therapies and never fully recover from the disease. They require long-term

medication and rehabilitation and experience periodic recurrence of the disease.” Comparing

the answers in the Rule 213 interrogatories with the trial testimony, we conclude that the

circuit court did not abuse its discretion in overruling Taylor’s Rule 213 objection and

allowing the testimony into evidence because the Rule 213 interrogatories disclose that Dr.

Oddis would discuss the outcome of patients who do not respond to treatments. Moreover,

Dr. Oddis’s answer at trial provided facts within his knowledge and was not an opinion.

¶ 46 Taylor also claims that the circuit court erred in admitting Dr. Oddis’s trial testimony in

which he stated on redirect examination that a rheumatologist is not responsible for

recommending the type of therapy that a polymyositis patient needs because a rehabilitation

physician having expertise regarding rehabilitation of patients with neuromuscular diseases

makes that decision. The circuit court overruled Taylor’s Rule 213 objection because Dr.

Oddis’s testimony provided facts obtained from his experience. During cross-examination

at trial, Taylor’s counsel asked Dr. Oddis whether a rheumatologist’s instructions to a

rehabilitation facility “should include guidelines like making sure that the patient was getting

physical therapy in terms of range of motion exercises.” Dr. Oddis responded in the negative

and stated that the rehabilitation specialist and the rheumatologist would advise on the

physical therapy regime. Taylor contends that the testimony elicited on redirect examination

was erroneously admitted. The question asked of Dr. Oddis was: “[W]ho, according to your

understanding, makes the decision on what type of therapy a patient–a polymyositis patient

needs?” Dr. Oddis responded: “It’s a combined approach. Certainly the rheumatologist does

not dictate the type of therapy, because it’s the expertise of the rehabilitation physician or the

physiatrist as they’re called to know how to manage patients that present with all types of

neuromuscular diseases.” The circuit court did not abuse its discretion in admitting the

testimony because Taylor introduced the testimony during cross-examination and Dr. Oddis

answered the question presented during redirect examination based upon his experience

treating patients. See Nassar v. County of Cook, 333 Ill. App. 3d 289, 303-04 (2002) (stating

that “[p]laintiffs cannot object where they first elicited the testimony during their

examination of [the witness]”). Dr. Oddis was reciting factual information based upon his

knowledge and not rendering an opinion. Thus, the circuit court did not abuse its discretion

-13-

in overruling the objection because the testimony was not subject to Rule 213. See id. at 303

(stating that factual statements are not subject to Rule 213).

¶ 47 Next, Taylor contends that Dr. Wortmann’s testimony regarding the length of time it

takes polymyositis patients to respond to steroid treatments and when an evaluation should

be performed to start second-line drugs exceeded Rule 213 parameters. Taylor claims that

the basis for this opinion was not disclosed, lacked foundation and was irrelevant regarding

a patient receiving 100 to 120 milligrams of prednisone or IV pulse therapy for three days.

During Dr. Wortmann’s discovery deposition, he stated that “the drugs work slowly in most

people and it usually takes at least four to six, sometimes, weeks to three or four months to

see the effects of the medications.” During Dr. Wortmann’s trial testimony, Taylor’s counsel

objected to the following question: “[H]ow long based on your background, training, and

experience and the literature that you are familiar with does it typically take a polymyositis

patient to respond to steroid?” The circuit court overruled Taylor’s Rule 213 objection on the

basis that Dr. Wortmann’s testimony was not an opinion. Dr. Wortmann responded that “it

generally takes at least four to eight weeks to discover how well the initial prescription of

steroids will work.” Also, when asked at trial how long a physician waits before reassessing

whether a second agent may be needed, Dr. Wortmann responded that “since we really do

not expect to see the maximum benefit from the first agent to as early as–for as long as eight

weeks. I would see people generally six weeks after they began their initial therapy to make

an assessment.” The circuit court overruled Taylor’s Rule 213 objection because Dr.

Wortmann’s testimony was not an opinion since his answer was based upon his experience.

The circuit court did not abuse its discretion overruling Taylor’s Rule 213 objection.

Reviewing Dr. Wortmann’s discovery deposition, he discussed the general time period for

a patient to respond to steroid treatment. Also, Dr. Wortmann’s answer regarding the length

of time that must lapse before a reassessment is conducted concerning the medications

prescribed to a patient was a fact and not an opinion.

¶ 48 Lastly, Taylor claims that the circuit court abused its discretion when it allowed Dr.

Furmanov to testify that Taylor had contractures when she was at Cook County Hospital.

During trial, counsel asked Dr. Furmanov whether “Taylor had developed any evidence of

contractures during the period of time that you saw her at Cook County Hospital.” The circuit

court overruled Taylor’s Rule 213 objection because the question was seeking what Dr.

Furmanov observed or saw. Dr. Furmanov responded that “there was evidence of

contractures in Taylor’s elbows that he noted upon his initial contact with Taylor.” During

Dr. Furmanov’s discovery deposition, he discussed his clinic note regarding Taylor’s May

27, 2005, visit. Counsel asked Dr. Furmanov the following question: “And I noticed that

there was some type of contractures in her elbows. Do you know would the 170-degree

extension be consistent with the contracture of her elbow?” Dr. Furmanov responded: “The

contracture? Something was in the way of the full extension. There was just a little bit, 170,

so it wasn’t full extension.” Since Dr. Furmanov’s trial testimony addressed contractures,

which was also addressed during his discovery deposition, the circuit court did not abuse its

discretion in admitting the testimony as no Rule 213 violation occurred. Moreover, Dr.

Furmanov stated factual information based on his observations.

-14-

¶ 49 B. Asserting a New Claim

¶ 50 Taylor next claims on appeal that the circuit court abused its discretion when it prevented

Taylor from testifying that she would have undergone IV pulse therapy if defendants had

presented that option to her. Taylor claims that the failure to inform Taylor of possible

treatment options was negligence and not a lack of informed consent. Taylor contends that

lack of informed consent cases address a physician’s failure to disclose to the patient

potential risks, not potential options for care. Welton v. Ambrose, 351 Ill. App. 3d 627, 636

(2004). Since negligence was pled in the complaint, Taylor maintains that her testimony was

admissible and the circuit court erred in ruling that the testimony related to a lack of

informed consent cause of action, which was not pled. Taylor also claims that if the

complaint required an amendment to include a lack of informed consent cause of action, then

she should have been allowed to amend the complaint because a party may amend pleadings

at any time before or after judgment is rendered to conform the pleadings to the proof. 735

ILCS 5/2-616(c) (West 2006).

¶ 51 The circuit court did not abuse its discretion in sustaining defendants’ objection barring

Taylor’s testimony addressing her participation in other treatment options had defendants

discussed those options with her. During Dr. Amato’s evidence deposition, the following

colloquy took place:

“Q. Okay. So you would agree methotrexate was a viable option for Raven

Taylor?

A. I think you could discuss that with Raven, the options, and, you know, other

side effects of methotrexate.

Q. Doctor, you would agree a reasonable–reasonably well qualified

rheumatologist and/or neurologist would be required to go over the reasonable

options with a patient such as Raven Taylor in providing treatment?

A. Yes.”

During trial, the following colloquy took place between Taylor and counsel:

Q. “Now, Raven, if you would have been told that there were other options for

treatment of your case of polymyositis on May 6th up through June 10th, 2005,

which included higher doses of prednisone and Solu-Medrol or prednisone, and that

you were told you could get–you may be able to get better quicker, but there were

risks, the risks that you have heard in court, what would you have done?

Ms. FOLTZ: Objection, Your Honor.”

The circuit court sustained the objection finding that: (1) the question was inappropriate

since an informed consent cause of action was not pled; (2) assuming an informed consent

count was pled, no evidentiary basis to ask the question existed because no expert opined that

it was a breach of informed consent or that an injury resulted; and (3) informed consent

incorporates an objective standard, not a subjective standard. The circuit court’s ruling

sustaining the objection was not an abuse of discretion.

¶ 52 Taylor’s complaint fails to include a cause of action pleading a lack of informed consent,

and allegations of negligence based on the failure to present various treatment options are

-15-

also lacking in the complaint. The question posed to Taylor asked what she would have done

if doctors had presented to her another treatment option along with the related risks. In

essence, the question posed to Taylor was whether she still would have undergone the

treatment that she received or if she would have undergone an alternative treatment if the

option and risks had been presented to her. The circuit court characterized this question as

forming a basis for a lack of informed consent cause of action, which did not amount to an

abuse of discretion. To plead a lack of informed consent cause of action, a plaintiff must

establish that: “(1) the physician had a duty to disclose material risks; (2) he failed to disclose

or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to

disclose, the patient consented to treatment she otherwise would not have consented to; and

(4) plaintiff was injured by the proposed treatment.” Coryell v. Smith, 274 Ill. App. 3d 543,

546 (1995). “The gravamen in an informed consent case requires the plaintiff to ‘point to

significant undisclosed information relating to the treatment which would have altered her

decision to undergo it.’ ” Davis, 405 Ill. App. 3d at 29 (quoting Coryell, 274 Ill. App. 3d at

546).

¶ 53 In a medical malpractice case raising a lack of informed consent count, a plaintiff must

prove that a physician “should have informed the patient, prior to administering medical

treatment, of the ‘diagnosis, the general nature of the contemplated procedure, the risks

involved, the prospects of success, the prognosis if the procedure is not performed and

alternative medical treatment.’ ” (Internal quotation marks omitted.) Coryell, 274 Ill. App.

3d at 549 (quoting Roberts v. Patel, 620 F. Supp. 323, 325 (N.D. Ill. 1985)). An informed

consent claim employs an objective standard and requires a determination of whether “after

proper disclosure, a prudent person would have nonetheless proceeded with the proposed

treatment.” Coryell, 274 Ill. App. 3d at 550. Even assuming defective informed consent, to

prevail on an informed consent claim, “plaintiff’s resulting condition must have been

proximately caused by the absence of informed consent.” Guebard v. Jabaay, 117 Ill. App.

3d 1, 10 (1983).

¶ 54 Here, the circuit court did not err in holding that the failure to inform a patient of

alternative treatments or procedures comprises a lack of informed consent cause of action.

The circuit court also did not err in stating what Taylor would or would not have done had

she received information about alternative treatments was irrelevant since the standard to

base the treatment decision upon is an objective and not a subjective standard. As such, the

circuit court did not err in striking the question posed to Taylor concerning disclosure of

alternative treatment on the bases that an informed consent cause of action count was (1) not

pled in the complaint and (2) Taylor did not present expert testimony supporting the lack of

informed consent. Also, the circuit court correctly stated that an objective standard

addressing what a reasonable person in Taylor’s position would have decided is used and not

a subjective standard. Id.

¶ 55 Further, the circuit court also did not err in ruling that an amendment to the complaint

to include a count for the lack of informed consent was not timely and failed to meet the

requirements allowing amendments to a complaint. According to section 2-616 of the Illinois

Code of Civil Procedure, which addresses amendments to pleadings:

“(a) At any time before final judgment amendments may be allowed on just and

-16-

reasonable terms, *** changing the cause of action *** in any matter, either of form

or substance, in any process, pleading, bill of particulars or proceedings, which may

enable the plaintiff to sustain the claim for which it was intended to be brought ***.

***

(c) A pleading may be amended at any time, before or after judgment, to conform

the pleadings to the proofs, upon terms as to costs and continuances that may be

just.” 735 ILCS 5/2-616 (West 2002).

The four factors to consider whether a pleading may be amended include the following: “(1)

whether the proposed amendment would cure the defective pleading; (2) whether other

parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether

the proposed amendment is timely; and (4) whether previous opportunities to amend the

pleading could be identified.” Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d

263, 273 (1992). A circuit court’s ruling regarding an amendment to a pleading is reviewed

for an abuse of discretion. Id.

¶ 56 Here, an amendment to the complaint would not cure a defective pleading because Taylor

must add a new count to the complaint. The new count relating to the lack of informed

consent arose after the trial started and near the close of Taylor’s case in chief. The circuit

court did not err in stating that adding the new cause of action would result in prejudice to

defendants, who did not prepare for that cause of action. Since the amendment was proposed

during the trial stage and not during the pleading stage, the circuit court did not abuse its

discretion in finding that the proposed amendment was untimely. Accordingly, it was not an

abuse of discretion for the circuit court to deny an amendment to the complaint to include

a count for the lack of informed consent.

¶ 57 Moreover, the circuit court did not abuse its discretion in precluding Taylor from

amending the complaint to address the lack of informed consent because no amendment was

necessary to conform the pleadings to the proofs. An amendment to conform the pleadings

to the proofs is permissible pursuant to section 2-616(c), but “the proof already produced

must support the amendment.” Harding v. Amsted Industries, Inc., 276 Ill. App. 3d 483, 494

(1995). When Taylor’s counsel asked her whether she would have pursued other treatment

options, proof supporting all of the elements for lack of informed consent was not presented.

In striking the question asked of Taylor, the circuit court indicated that proofs supporting a

lack of informed consent case failed to exist. The circuit court stated that an expert did not

testify on Taylor’s behalf that the standard of care was breached or that she was injured

because she was not given an option to receive 120 milligrams of prednisone or IV pulse

therapy. Since proof supporting a claim that defendants were negligent in failing to inform

Taylor of treatment options was not presented, the pleadings in this case may not be amended

to conform to proofs that were not presented. As such, the circuit court did not abuse its

discretion in denying an amendment to the complaint.

¶ 58 C. Limited Scope of Taylor’s Expert Testimony

¶ 59 Taylor’s third issue on appeal is whether the circuit court erred in sustaining defendants’

Rule 213 objections, thereby limiting the scope of her expert’s testimony. Taylor contends

-17-

that Dr. Bohan’s testimony was either a logical corollary to disclosed opinions or was a

disclosed opinion permissible under Rule 213. In connection with this issue, Taylor raises

five claims of error.

¶ 60 Taylor’s first claim of error relates to Dr. Bohan’s testimony addressing Dr. Block’s

physical examination of Taylor. During trial, the following colloquy took place between

Taylor’s counsel and Dr. Bohan:

“Q. And can you tell us, first of all, what joints were examined and whether they

appear to be normal or abnormal?

A. Well, it appears that the examination included the shoulder and the elbows and

the examination showed decreased range of motion of both shoulders and both

elbows.

Q. And what is the significance, if any, to you in your opinion?

MS. FOLTZ: 213, your Honor.

THE COURT: The burden is on you, that is an opinion.”

Taylor claims that Dr. Bohan’s testimony should have been admitted because it was a logical

corollary to his previously disclosed causation opinion. Dr. Bohan’s opinion was that

defendants’ negligence was a proximate cause of Taylor’s permanent disability, which

included her inability to raise her right arm over her head. Taylor claims she was unduly

prejudiced by Dr. Bohan’s inability to testify regarding Dr. Block’s articular examination.

¶ 61 The circuit court did not abuse its discretion in striking the question posed to Dr. Bohan.

Taylor erroneously contends that Dr. Bohan’s answer was a logical corollary to an opinion

disclosed in his deposition. A witness may elaborate on a previously disclosed opinion

provided that “the testimony states logical corollaries to the opinion, rather than new reasons

for it.” Lopez v. Northwestern Memorial Hospital, 375 Ill. App. 3d 637, 645 (2007).

Testimony that is a logical corollary to a previously disclosed opinion is admissible and does

not violate Rule 213.

¶ 62 Here, Dr. Bohan stated that Dr. Block’s examination of Taylor’s shoulder and elbows

demonstrated a decreased range of motion in both shoulders and elbows. Taylor’s counsel

then asked Dr. Bohan, “what is the significance, if any, to you in your opinion?” Counsel’s

question signifies that Dr. Bohan was not testifying relating to matters already disclosed, but,

instead, was providing a new basis for his causation opinion. The circuit court did not abuse

its discretion in sustaining the objection on the basis that the undisclosed testimony violates

Rule 213.

¶ 63 Taylor’s second claim is that the circuit court erred when it struck Dr. Bohan’s testimony

addressing the treatment that Taylor received on May 6, 9 and 10, 2005, and whether that

treatment caused Taylor to become refractory to future treatment. During trial, the following

colloquy took place:

“Q. And, Doctor, had the disease gotten under control as you’ve already testified

with the treatment that you testified about, would Raven be normal today?

A. Well, had she been treated properly, I think that much of what happened

wouldn’t have happened–happened to her wouldn’t have happened. First of all, I

-18-

doubt very, very much that her disease would have become refractory to treatment,

I think it would have responded. On the muscle biopsy that we–.”

The circuit court sustained defendants’ Rule 213 objection that followed Dr. Bohan’s

testimony. Taylor claims that she provided to the circuit court citations to numerous places

where Dr. Bohan discussed the correlation between the length of time a patient was untreated

or under-treated for an inflammatory disease and likelihood that the patient would become

refractory to treatment. Taylor maintains that Dr. Bohan’s testimony relates to prior disclosed

testimony and the circuit court abused its discretion in sustaining defendants’ Rule 213

objection.

¶ 64 The circuit court did not abuse its discretion when it stated that for Dr. Bohan’s testimony

to be admitted into evidence, his testimony must have related to previously disclosed

testimony that during May 6-10, 2005, defendants’ care of Taylor caused her illness to

become refractory to future treatments. Taylor failed to identify the prior disclosure of such

an opinion by Dr. Bohan, and, thus, the testimony was not admissible.

¶ 65 Taylor’s third claim of error is that she was prejudiced by the disallowance of Dr.

Bohan’s testimony addressing a decrease in Taylor’s life expectancy. Defense counsel

impeached Dr. Bohan’s trial testimony in which he stated that Taylor’s life expectancy would

have been reduced “by less than ten years, maybe seven years, that would be a reasonable

estimate.” with his prior deposition testimony where he stated that Taylor’s life expectancy

“would have been reduced by less than ten years had Taylor been treated with an appropriate

dose of steroids.” On redirect examination, Taylor’s counsel was permitted to read the

following question and answer from Dr. Bohan’s deposition:

“Q. If the defendants had timely and appropriately treated Raven, and she was on

the regime, the medication regime which you have testified to, in your opinion what

would her decrease–or would there be a decrease in life expectancy, and what would

it be or if there would be?

A. So maybe let’s say seven years.

Q. Doctor, is that consistent what the testimony that you told the jury on direct?”

The circuit court sustained defendants’ objection as to the form of the question. During the

rehabilitation of Dr. Bohan, Taylor’s counsel asserted that Dr. Bohan’s entire answer was

relevant and should have been read to the jury and not just the portion addressing the

decrease in life expectancy. The circuit court disagreed and allowed Taylor’s counsel to

rehabilitate regarding only the reduction in years of Taylor’s life expectancy. Taylor

maintains that the circuit court abused its discretion by prohibiting the reading into evidence

Dr. Bohan’s entire answer provided in his deposition.

¶ 66 We disagree with Taylor. The purpose of the rehabilitation was to address Taylor’s life

expectancy, assuming the doctors had treated Taylor according to the care that Dr. Bohan

believed to be the standard of care. Dr. Bohan’s complete answer provided during his

deposition is as follows:

“A. I think that if Raven had been treated more aggressively, more timely–and

we’ve gone over that so I’m not going to repeat any of that now–I do think there is

a likelihood more likely than not that her disability would be less; that she would

-19-

require less medications for maintenance, she probably would require some but

probably much less, she probably wouldn’t need five drugs; and she might be able

to get by with a small dose of prednisone with, say, five and half–five milligrams,

seven and a half milligrams, there’s a range; and she might have been able to get by

just with methotrexate instead of methotrexate and Imuran and Cellcept and Imuran

and steroids, higher dose of steroids. If that were the case then one would expect that

she would have less complications from less maintenance drugs. Because, again, I

think I testified that the mortality would be more likely due to the drugs than to

polymyositis itself. And so less drugs, less dosages probably would mean less impact

on life expectancy. I think there would still be some impact but probably less than ten

years if, in fact, she had been treated appropriately and was in better condition than

she is now in terms of her disease state and less disability and less maintenance

medications. So maybe let’s say seven years.”

¶ 67 The circuit court did not abuse its discretion in limiting Dr. Bohan’s rehabilitation

testimony to address the impact that the doctors’ treatment had on Taylor’s life expectancy.

Defense counsel sought to impeach Dr. Bohan’s testimony that Taylor’s life expectancy was

impacted by 7 years with prior testimony that her life was impacted by 10 years. Thus, for

rehabilitation purposes, limiting the prior testimony to address strictly the life expectancy

issue was not an abuse of discretion because the additional information in the answer as

stated above was not necessary to determine what was Dr. Bohan’s prior testimony regarding

Taylor’s life expectancy.

¶ 68 Taylor’s fourth claim of error is that she suffered prejudice when the circuit court did not

allow Dr. Bohan to testify on redirect examination regarding the issue of causation and Dr.

Manadan’s failure to admit Taylor to the hospital on June 10, 2005. During Dr. Bohan’s

direct examination, the following colloquy took place:

“Q. What injury did they cause?

A. I think that they still had–Dr. Furmanov and Dr. Manadan still had an

opportunity even on 6-10 to hit her with Solu-Medrol 1,000 milligrams three times

a day and they could have prevented what followed on the next day, on 6-11.”

¶ 69 During cross-examination, the following colloquy took place:

“Q. Well, earlier you expressed an opinion that all of that special treatment and

necessary treatment could have been avoided had she been hospitalized on June 10th.

Wasn’t that your testimony?

A. Well, I would amplify that to say–

***

Q. Well, at your deposition, sir, were you asked this question and did you give

this answer?

***

Q. So the question was, did it affect the outcome of the severity of her disease

from the 10th to the 11th?

And your answer: You know, it probably wouldn’t have changed the fact that on

-20-

the following day she required all these other measures and deteriorated to the point

that she did.

In other words, had they hospitalized her on the 10th, they probably would have

still needed to do these other things, and she would have been ventilator dependent

and intubated and so forth. One day probably wouldn’t have mattered.

Were you asked that question and did you give that answer?

A. Well, like I said, it is a possible. It is possible it wouldn’t.”

¶ 70 During redirect examination, counsel read Dr. Bohan’s deposition in which he stated that

“Dr. Manadan not admitting the patient on June 10th, 2005 probably didn’t cause the

intubation and so forth. Do you remember that?” The colloquy below followed:

“Q. Doctor, what does probably mean to you?

A. More likely than not.

Q. And what does could or possibly mean to you?

A. It means it could be, it might happen. It’s conceivable that it would. I think

that’s what I meant by that.

Q. And as far as if Dr. Manadan would have ordered an admission for Raven

Taylor on April 10th, 2005-June 10, 2005, what is your opinion in that regard?

MR. BUENGER: Objection to the form of the question.

THE COURT: Sustained. You just do not get rehabilitation–rehabilitation is only

to correct a discrepancy. So sustained.

Q. Doctor, if Raven had been hospitalized on May 10th-June 10th, 2005, what

would the difference have been to her?

MR. BUENGER: Objection.

THE COURT: This is exactly what I just sustained.”

¶ 71 The circuit court did not abuse its discretion in sustaining defendants’ objection. On

redirect examination, the circuit court allowed Dr. Bohan to define the terms “probably” and

“could” or “possibly.” The circuit court did not allow counsel on redirect to ask what Dr.

Bohan’s opinion was regarding hospital admission on April 10 through June 10, 2005. The

circuit court did not abuse its discretion when it stated that the purpose of rehabilitation is

to correct a discrepancy, and questioning Dr. Bohan on redirect regarding his opinion

exceeded the line of questioning permissible to rehabilitate a witness.

¶ 72 Lastly, Taylor claims that the circuit court abused its discretion in sustaining defendants’

objection to Dr. Bohan’s testimony addressing the information that defendant doctors should

have communicated to Oak Forest Hospital following Taylor’s transfer on May 10, 2005, and

the relevant standard of care. During redirect of Dr. Bohan, the following colloquy occurred:

“Q. And can you tell us in your opinion what the rheumatologists should have

told the rehab doctors at the time of transfer on 5-10-05, understanding you do not

believe she would have been–she should have been transferred in the first place?

A. Correct.

MS. FOLTZ: Objection, Your Honor. Scope and improper.

-21-

THE COURT: Sustained.

MS. RAYMOND: Your Honor, these questions were asked by Mr. Buenger

regarding this specifically.

THE COURT: He was asked questions, but they didn’t go to the standard of care.

They were factual things, questions. Sustained.”

¶ 73 The colloquy during cross-examination between defense counsel and Dr. Bohan was as

follows:

“Q. So you believe that because there was not a direct specific instruction, the

physicians at Oak Forest would not have known to call rheumatology if they felt

there was a concern with Raven?

A. Well, that would be speculation. I cannot get in their minds. I do know that

there was–that during the three-week period of time that Raven was at Oak, there was

only one communication made in all those three weeks.

What should have been the standard of care is she should have been monitored

every day, not one call over a period of three weeks.”

¶ 74 Taylor claims that Dr. Bohan’s opinion regarding the standard of care concerning a

rheumatologist’s communication with a rehabilitation facility following a patient’s transfer

from an acute hospital should have been explored during redirect examination. Taylor

maintains that the circuit court sustaining the objection regarding this line of questioning

amounted to an abuse of discretion.

¶ 75 The circuit court did not abuse its discretion in sustaining defendants’ objection on the

basis that the questioning on redirect examination exceeded the scope of the questioning on

cross-examination. On cross-examination, Dr. Bohan testified regarding the amount of

communication that should have occurred between defendants and Oak Forest Hospital. On

redirect, counsel sought to elicit testimony from Dr. Bohan regarding the instructions that a

rheumatologist should have provided to the doctors at Oak Forest Hospital. The scope and

nature of the information sought to be obtained by the questioning on redirect examination

exceeded the nature and scope of the questioning on cross-examination that addressed the

amount of communication. Accordingly, the circuit court did not err in sustaining the

objection regarding Dr. Bohan’s testimony addressing the nature of the communication that

was required between the doctors at Cook County Hospital and Oak Forest Hospital.

¶ 76 D. Jury Instructions

¶ 77 Next, Taylor claims on appeal that the circuit court erred when it modified IPI Civil

(1995) No. 3.01 and IPI Civil (Supp. 2008) No. 3.03. Regarding IPI Civil (1995) No. 3.01,

Taylor maintains that the circuit court erred when it refused to instruct the jury that a witness

may be impeached by conflicting conduct. Taylor contends that defense experts testified that

they have personally treated severe polymyositis cases with the treatment proposed by

Taylor’s experts. Taylor claims that such testimony conflicted with their standard of care

testimony. Because defense experts admitted that they have used the treatment presented by

Taylor’s experts, Taylor contends the jury should have been instructed to discredit their

-22-

standard of care testimony as it conflicts with conduct that they have previously engaged in

when treating patients diagnosed with the same illness.

¶ 78 Regarding IPI Civil (Supp. 2008) No. 3.03, Taylor contends that the circuit court abused

its discretion in not reading to the jury the sentence addressing the circuit court’s adjustment

of the jury’s verdict. Taylor claims that because the circuit court did not read the instruction

in its entirety, the jury was unaware that the circuit court would address the public aid lien

after the verdict. Taylor maintains that the jury “may have refused to find for the Plaintiff

reasoning that she was seeking an unjust enrichment–a double recovery.” Taylor claims that

she was denied her right to have the jury properly instructed by the circuit court’s refusal to

read IPI Civil (1995) No. 3.01 and IPI Civil (Supp. 2008) No. 3.03 in their entirety.

¶ 79 Jury instructions are “to provide the jury with the correct legal principles applicable to

the evidence, so that the jury may reach a correct conclusion according to the law and the

evidence.” People v. Clarke, 391 Ill. App. 3d 596, 625 (2009). A circuit 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.” Matarese v. Buka, 386 Ill. App. 3d 176,

178 (2008). A circuit court does not abuse its discretion regarding jury instructions if the

instructions in their entirety “fairly, fully, and comprehensively apprised the jury of the

relevant legal principles.” Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201

Ill. 2d 260, 273-74 (2002). A circuit court is deemed to have abused its discretion regarding

faulty jury instructions if the instructions mislead the jury and result in prejudice to the

litigant. Id. at 274. If a circuit court in its discretion finds that a pattern jury instruction does

not accurately state the law, “Supreme Court Rule 451(a) authorizes the trial court to modify

it.” Clarke, 391 Ill. App. 3d at 626.

¶ 80 Turning first to IPI Civil (1995) No. 3.01, Taylor proposed the following jury instruction:

“The credibility of a witness may be attacked by introducing evidence that on

some former occasion the witness made a statement or acted in a manner inconsistent

with the testimony of the witness in this case on a matter material to the issues.

Evidence of this kind may be considered by you in connection with all the other facts

and circumstances in evidence in deciding the weight to be given to the testimony of

that witness.”

¶ 81 The circuit court deleted the phrase “or acted in a manner” from the proposed

instructions. The circuit court refused to give Taylor’s proposed instruction because the

evidence did not support that a witness took “an inconsistent position by way of actions.”

Taylor claims that defense experts’ testimony was inconsistent with their conduct in treating

patients with severe polymyositis. Reviewing the testimony of Doctors Amato, Oddis and

Wortmann, we conclude that the circuit court did not abuse its discretion in modifying IPI

Civil (1995) No. 3.01 because the evidence in the record does not support a finding that the

experts’ testimony was inconsistent with prior conduct. The experts testified that multiple

treatment options exist to treat a patient with severe polymyositis and the various options

would be considered within the standard of care. Thus, utilizing a particular treatment option

previously to treat a patient but recognizing that the treatment provided by defendant doctors

was also within the recognized standard of care does not give rise to conflicting conduct.

-23-

Accordingly, the circuit court did not abuse its discretion in modifying IPI Civil (1995) No.

3.01 based upon the evidence presented in the instant case, nor is the instruction as modified

confusing or misleading.

¶ 82 Turning to IPI Civil (Supp. 2008) No. 3.03, Taylor proposed the following jury

instruction:

“Whether a party is insured or not insured has no bearing on any issue that you

must decide. You must refrain from any inference, 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.”

¶ 83 The circuit court deleted the last sentence from the proposed instruction. In denying

Taylor’s proposed IPI Civil (Supp. 2008) No. 3.03 instruction, the circuit court stated that

it would not give the proposed instruction because “it’s a lie” since “no judge adjusts the

verdict and the instruction is misleading.” According to the circuit court, the instruction “tells

the jury it doesn’t make a damn bit of difference what you return; if I do not like it, I will

make whatever adjustments are necessary, i.e., I will up it or I will lower it if I do not like

it.” In the circuit court’s view, the proposed IPI Civil (Supp. 2008) No. 3.03 would mislead

the jury to believe that a verdict awarding damages would be subject to review and

modification by the judge. No abuse of discretion occurred here where the circuit court

modified an instruction in an effort not to mislead the jury regarding the review of damages,

which the circuit court stated in practical terms does not happen. Accordingly, the circuit

court did not abuse its discretion in modifying Taylor’s proposed IPI Civil (Supp. 2008) No.

3.03 instruction.

¶ 84 E. Fair Trial

¶ 85 Taylor’s last issue on appeal is that she did not receive a fair trial as a result of the circuit

court’s collective erroneous rulings. Taylor maintains that even if the erroneous rulings

individually did not require a new trial, taking the errors collectively deprived Taylor of a fair

trial regarding the issues of causation and negligence. Taylor claims that she is entitled to a

new trial.

¶ 86 A litigant is entitled to a fair trial, but that right does not encompass an “absolutely error-

free trial.” Lawson v. G.D. Searle & Co., 64 Ill. 2d 543, 559 (1976). A new trial is not

warranted if based on the record, the circuit court can determine that no injury to the litigant

resulted from any alleged trial errors. Id. A new trial, however, may be warranted if the

alleged errors affected the outcome of the case. Simmons v. Garces, 198 Ill. 2d 541, 566

(2002).

¶ 87 Based on a review of the record, the alleged errors individually and collectively did not

preclude Taylor from receiving a fair trial as none of the alleged errors were prejudicial or

affected the outcome of Taylor’s case.

-24-

¶ 88 IV. CONCLUSION

¶ 89 After reviewing the record, we conclude that the circuit court did not abuse its discretion

regarding its evidentiary rulings. The circuit court also did not abuse its discretion in

modifying IPI Civil (1995) No. 3.01 and IPI Civil (Supp. 2008) No. 3.03 because it ruled that

the proposed instructions would mislead the jury and did not adequately state the law. Taylor

also received a fair trial as none of the alleged errors resulted in prejudice or affected the

outcome of her case.

¶ 90 Accordingly, the judgment of the circuit court is affirmed.

¶ 91 Affirmed.

-25-