finding proximate causation established where evidence, which revealed that medical providers would have embarked on a different course of treatment had they been properly apprised of the plaintiff's condition by the defendants, permitted a reasonable inference that the defendants' omissions prevented the medical providers from rendering proper treatment
How later courts described this case
- finding proximate causation established where evidence, which revealed that medical providers would have embarked on a different course of treatment had they been properly apprised of the plaintiff's condition by the defendants, permitted a reasonable inference that the defendants' omissions prevented the medical providers from rendering proper treatment
- reasoning that damages for an increased risk of harm may not be awarded unless a plaintiff can show that the defendant’s wrongful conduct, “to a reasonable degree of medical certainty, proximately caused the increased risk of harm”
- holding a plaintiff establishes proximate cause when she shows “that [the] defendant’s negligence ‘more probably than not’ caused [her] injury”
- holding that "[t]he 'better result test' is not a part of plaintiff's burden of proof"
Written by the judges who cited it.
Distinguished
Distinguished by Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1999)
Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202 (1997), cited by plaintiffs as distinguishing Gill, is inapposite to the case at bar.
The opinion
JUSTICE NICKELS, dissenting:
I agree with the majority’s excellent analysis and conclusion finding that the "loss of chance” doctrine does not lessen a plaintiff’s duty to prove proximate cause in a medical malpractice action. However, I strongly disagree with the majority’s conclusion that the conduct of the trial court and the plaintiffs’ attorney constitutes reversible error. Therefore, I respectfully dissent.
Initially, I note that the majority is simply incorrect in asserting that Dr. Jergens’ party status in the companion lawsuit is a collateral matter. The purpose of cross-examination is to test the credibility of a witness. People v. Collins, 106 Ill. 2d 237, 269 (1985). A matter is considered collateral only if it is irrelevant for any purpose other than to simply contradict the in-court testimony of the witness. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 607.2, at 337 (5th ed. 1990). For example, what a witness had for lunch, even if contradicted by other evidence, would not be a proper basis for extrinsic evidence in a case involving whether a defendant ran a red light. However, a witness’ bias is not a collateral matter and a party may prove bias by extrinsic evidence. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 607.2, at 338 (5th ed. 1990).
In the instant case, the plaintiffs’ attorney attempted to elicit the fact that Dr. Jergens was named as a defendant in a separate lawsuit that plaintiffs brought arising from the same set of facts. Plaintiffs’ attorney was attempting to show that Dr. Jergens’ testimony should not be viewed as impartial, because plaintiffs were also attempting to impose liability on Dr. Jergens in the separate lawsuit. "Extrinsic evidence offered to establish bias *** [by] the witness may be admitted following denial by the witness of a fact giving rise to such an inference when put to the witness on cross-examination.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 607.2, at 340 (5th ed. 1990).
Even more confusing than the majority’s misapplication of the collateral matter rule is the suggestion that the conduct of the plaintiffs’ attorney that occurred outside the presence of the jury requires reversal of the jury verdict. The "mini trial” described in the majority opinion in which plaintiffs’ attorney made many of the heated accusations of perjury and the quoted remarks questioning the integrity of defense counsel occurred outside the presence of the jury. As this occurred outside the presence of the jury, I fail to understand how any of this has any relevance to whether the defendant hospital received a fair trial.
The majority finds that the trial judge abused his discretion in making the statement to the jury concerning the existence of the pending lawsuit against Dr. Jergens. In that statement, the judge told the jurors that in considering Dr. Jergens’ credibility, they may consider that he was aware of a lawsuit against him and that the defendant’s attorneys had done "certain things that encouraged the doctor to believe his answer was accurate.” The majority finds "no sound basis for these charges.”
I question the overly charitable view the majority gives the defense in this matter as well as the import of the instruction on which the majority finds error. After denying his awareness that he was a "defendant” in'the companion lawsuit, Dr. Jergens ran from the courtroom in an effort to evade service of process. Plaintiffs’ attorney believed this conduct showed an awareness of the suit, and a hearing was held outside the presence of the jury. At the hearing, the court attempted to determine if the witness had been coached to give a misleading answer. The defense attorney initially denied ever talking about the lawsuit with Dr. Jergens:
"MR. SANDBERG [defense attorney]: Since the time the lawsuit was filed, I have never talked to Dr. Jergens about the lawsuit and there is no evidence otherwise—
The majority finds that defendant’s attorney merely "misspoke” in denying that he had ever discussed the lawsuit with Dr. Jergens. However, the defendant’s attorney did not completely "correct himself’ until Dr. Jergens was returned to the courtroom to directly contradict this statement. After Dr. Jergens was located, he testified that he had discussed the lawsuit with both defense attorneys at a meeting at the hospital and immediately before testifying in court. It was based on this discussion, as well as discussion with other attorneys, that Dr. Jergens formed his belief that he was not actually a party until served.
"MR. COOK [plaintiffs’ attorney]: Who gave you that understanding? Did you talk about that with Ms. Hines or Mr. Sandberg?
DR. JERGENS: Among others.
MR. COOK: Among others. When’s the last time that you talked with them about that fact before you testified? Yesterday?
DR. JERGENS: We talked about a suit yesterday. But whether or not the last time they talked to me about being summoned?
* * *
MR. COOK: Doctor, again, you were told yesterday that you’re not a defendant until you’re served with summons by one or both of these lawyers, is that right?
DR. JERGENS: That’s my recollection.
MR. COOK: That’s yesterday. Where were you when you had that discussion with one or both of those lawyers?
DR. JERGENS: I was at Memorial Hospital.
MR. COOK: Who else was present? DR. JERGENS: No one.
* * *
MR. SANDBERG: Did I tell you because you hadn’t been served you’re not a defendant in the companion case?
DR. JERGENS: That was my understanding from our conversation and from the conversations I had with other lawyers.”
Upon further questioning by defendant’s attorney, Dr. Jergens clarified his response by stating that the specific question regarding his party status was not discussed with the defense attorneys prior to his testimony.
Based on this hearing, the trial court determined that defense counsel "had done certain things that encouraged the doctor to believe that his answer was accurate.” This characterization is supported by Dr. Jergens’ testimony at the hearing and is a neutral explanation of why the doctor testified that he believed he was not a party. This explanation directly impugns neither the integrity of defense counsel nor Dr. Jergens. In addition, the court stated that the jury may consider the fact that Dr. Jergens is a defendant in a lawsuit filed by the plaintiffs in determining his credibility. Thus, the trial court’s instruction placed the evidence of Dr. Jergens’ bias in a proper context for the jury and explained the error of his testimony in a neutral fashion. I would not find that the trial court abused its discretion in this regard.
The majority also finds error in certain comments plaintiffs’ attorney made during closing arguments. Specifically, the majority complains that plaintiffs’ attorney suggested that nurses were encouraged to "modify their testimony” and objects to the comparison of the defense attorneys to nefarious attorneys who violated ethical rules. I note that attorneys are granted wide latitude in closing arguments. Furthermore, even the majority is forced to acknowledge that, in light of the evidence presented, there is support for these charges. More importantly, defense counsel did not object to plaintiffs’ closing arguments. I do not agree that these comments, which were grounded in the evidence presented and not objected to at trial, constitute a sound basis for a new trial. For these reasons, I respectfully dissent from the majority’s opinion.
JUSTICE HARRISON joins in this dissent.