Babikian v. Mruz , 2011 IL App (1st) 102579 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Babikian v. Mruz, 2011 IL App (1st) 102579Appellate Court LISA BABIKIAN, Plaintiff-Appellee, v. RICHARD MRUZ, M.D.,
Caption Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-10-2579
Filed July 18, 2011
Held In a medical malpractice action, defendant physician forfeited the issue
(Note: This syllabus of whether the trial court erred in admitting evidence and argument that
constitutes no part of he was not board certified and had failed the board-certification
the opinion of the court examination, and where the trial court erred in denying defendant’s
but has been prepared motion for a setoff, the appellate court granted that motion and so
by the Reporter of ordered.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 06-L-11209; the
Review Hon. Susan M. Zwick, Judge, presiding.
Judgment Affirmed in part, reversed in part, and modified.
Counsel on Pretzel & Stouffer Chtrd., of Chicago (Timothy A. Weaver and Michael
Appeal A. Barry, of counsel), for appellant.
Law Office of Kenneth C. Chessick, M.D., of Schaumburg (Kenneth C.
Chessick and Magdalena Dworak, of counsel), for appellee.
Panel JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Hall and Justice Rochford concurred in the judgment
and opinion.
OPINION
¶1 The plaintiff, Lisa Babikian, brought this action against the defendant, Richard Mruz,
M.D., seeking recovery for damages sustained as a result of negligent medical treatment. The
jury found in favor of the plaintiff and returned a verdict in the amount of $500,500. The
circuit court entered judgment on the verdict, and the defendant has appealed. For the reasons
that follow, we affirm in part, reverse in part, and order a setoff in favor of the defendant.
¶2 The record reflects the following relevant facts. The plaintiff came under the care of the
defendant in February 2000. After examining the plaintiff, the defendant performed a
diagnostic laparoscopy to determine whether she suffered from endometriosis. The procedure
was performed on an outpatient basis at Alexian Brothers Medical Center (Alexian Brothers).
During the laparoscopy, the defendant pierced the plaintiff’s transverse colon, requiring
immediate corrective surgery by another surgeon. Immediately after that surgical repair had
been accomplished, the defendant completed the laparoscopy. He found no evidence of
endometriosis, but discovered a seven-centimeter ovarian cyst, which was sent to the lab for
testing.
¶3 The perforation of the plaintiff’s transverse colon required further hospitalization, a
colostomy, and an additional surgery to reverse the colostomy. The plaintiff also developed
ileus, a condition that necessitated a three-week hospital stay. The multiple incisions caused
the plaintiff to develop hernias, also requiring further hospitalization. As a result of these
treatments and complications, the plaintiff suffers from permanent pain in her abdomen. In
addition, her mental health declined, impelling her to seek treatment from psychologists and
psychiatrists. The plaintiff was prescribed antidepressant medications and eventually required
emergency hospitalization because she had become suicidal.
¶4 Prior to filing suit against the defendant, the plaintiff and her husband, Aleco, entered
into an agreement with Alexian Brothers. Pursuant to that agreement, the plaintiff and Aleco
executed a covenant not to sue in exchange for a payment of $70,000, which was not
apportioned in any way.
¶5 The plaintiff and Aleco subsequently brought this medical malpractice action against the
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defendant. The plaintiff claimed that, as a result of the defendant’s negligence, she suffered
damages for permanent injury and disfigurement, medical expenses, pain and suffering, and
emotional distress. Aleco sought recovery for loss of consortium.
¶6 During discovery, the defendant identified himself as a controlled expert witness under
Supreme Court Rule 213(f)(2) (Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007)), stating that he
“would testify regarding his training, education, and experience,” as well as “his care and
treatment of [the plaintiff],” and “his compliance with the standard of care.” The defendant
further disclosed that he would testify that his care and treatment of the plaintiff “were
reasonable, appropriate, and within the standard of care, and [that] his care and treatment did
not cause the injuries as claimed by the plaintiff.”
¶7 Also during discovery, the plaintiff and Aleco disclosed the existence of the covenant not
to sue and that they had received a payment of $70,000 from Alexian Brothers.
Approximately two years before trial, the plaintiff and Aleco divorced, and Aleco thereafter
voluntarily dismissed his loss-of-consortium claim.
¶8 Prior to trial, the defendant filed a motion seeking to preclude the plaintiff from
presenting evidence that he had previously failed the board examination in obstetrics and
gynecology. The trial court granted the defendant’s motion, in part, ruling that evidence
regarding the defendant’s lack of board certification would be admitted only if the defendant
provided expert opinions as to the standard of care.
¶9 At trial, the defendant was called as an adverse witness by the plaintiff. During that
examination, the defendant testified regarding his professional education and experience, as
well as his treatment of the plaintiff and the reasons underlying his treatment decisions.
When the plaintiff’s counsel inquired whether he believed that he had complied with the
standard of care in treating the plaintiff, the defendant responded, “I am a physician for over
30 years or so. *** I am going to do things appropriately, I am going to ask the proper
questions. I did in [the plaintiff’s] case.” The defendant further testified that he was not board
certified. In addition, after acknowledging that a candidate for board certification must first
take the written portion of the board examination before sitting for the oral portion, the
defendant stated that he had not taken the oral portion of the test. The defendant was never
expressly asked, nor did he testify regarding, whether he had failed the written portion of the
certification exam. A subsequent objection by defense counsel was overruled based on the
fact that the defendant had earlier testified to his expert opinion regarding the standard of
care.
¶ 10 The trial court instructed the jurors that, if they found in favor of the plaintiff, they could
award damages for pain and suffering and also for emotional distress, as long as those
elements of damages were supported by the evidence. The jury returned a verdict for the
plaintiff in the amount of $500,500, which included specific awards of $200,000 for pain and
suffering and $130,000 for emotional distress.
¶ 11 The defendant filed a posttrial motion, asserting that the trial court erred in permitting
the plaintiff to imply to the jury that the defendant had failed the board-certification
examination and by instructing the jury that damages could be awarded separately for both
pain and suffering and emotional distress. In addition, the defendant requested that he be
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awarded a setoff based on the prior settlement agreement between the plaintiff and Alexian
Brothers. The trial court denied the defendant’s posttrial motion in its entirety, and this
appeal followed.
¶ 12 The defendant initially contends that the trial court committed reversible error in
allowing the plaintiff to present evidence and argument that he was not board certified and
that he had failed a portion of the board-certification examination. In response, the plaintiff
argues that the defendant has forfeited this issue by failing to assert a timely objection at trial.
We agree that the issue has been forfeited on appeal.
¶ 13 A court’s evidentiary rulings may not be challenged on appeal if they have not been
properly preserved. See generally Thornton v. Garcini, 237 Ill. 2d 100, 106, 928 N.E.2d 804(2009). Rulings on motions in limine are interlocutory and remain subject to reconsideration
by the court throughout the trial. Cetera v. DiFilippo, 404 Ill. App. 3d 20, 40, 934 N.E.2d
506 (2010). Consequently, an adverse ruling on a pretrial motion to exclude evidence is not
sufficient to preserve the issue for appeal. Simmons v. Garces, 198 Ill. 2d 541, 569, 763
N.E.2d 720 (2002); Cetera, 404 Ill. App. 3d at 40. The moving party must also make a
contemporaneous objection at trial when the evidence is introduced in order to allow the
court the opportunity to revisit its earlier ruling. Simmons, 198 Ill. 2d at 569. Failure to object
at trial results in forfeiture of the issue on appeal. Simmons, 198 Ill. 2d at 569; Cetera, 404
Ill. App. 3d at 40. Also, the failure to object to allegedly improper comments during closing
argument operates as a forfeiture of the objection. Velarde v. Illinois Central R.R. Co., 354
Ill. App. 3d 523, 543-44, 820 N.E.2d 37 (2004).
¶ 14 In this case, the defendant’s motion in limine sought to exclude evidence that he had
failed the written portion of the board-certification examination. The trial court granted that
motion, in part, and ruled that evidence of his lack of board certification would be admitted
only if the defendant provided an expert opinion regarding the standard of care. At trial, the
defendant testified that he complied with the standard of care in treating the plaintiff, and he
also stated that he was not board certified and had not taken the oral portion of the
certification examination. Defense counsel did not raise a contemporaneous objection to this
testimony. In addition, the defendant did not object to the closing argument of the plaintiff’s
attorney on the basis that her comments improperly referenced his lack of board certification.
Consequently, the defendant has forfeited the right to challenge that evidence and argument.
See Simmons, 198 Ill. 2d at 569; Velarde, 354 Ill. App. 3d at 543-44.
¶ 15 Moreover, even if this issue had been preserved for review, we would find no error in the
trial court’s decision. First, we observe that the defendant was never explicitly questioned,
nor did he testify, regarding the fact that he had failed the written portion of the board
examination. Second, such evidence would have been admissible if it had been adduced. See
Rockwood v. Singh, 258 Ill. App. 3d 555, 557, 630 N.E.2d 873 (1993) (holding that, where
a physician who has been sued for malpractice testifies as an expert, evidence regarding his
age, practice, and failure to pass board-certification examinations is relevant and admissible);
McCray v. Shams, 224 Ill. App. 3d 999, 587 N.E.2d 66 (1992) (same). Accordingly, we
reject the defendant’s assertion that the judgment is subject to reversal on this ground.
¶ 16 The defendant next argues that the trial court erred by instructing the jury that damages
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could be awarded for pain and suffering and for emotional distress. We disagree.
¶ 17 Whether to provide a particular jury instruction is within the sound discretion of the trial
court, and the court’s decision will be reversed only where the trial court abused its
discretion. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 203, 854
N.E.2d 635 (2006). A trial court does not abuse its discretion so long as, “ ‘taken as a whole,
the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal
principles.’ ” York, 222 Ill. 2d at 203 (quoting Schultz v. Northeast Illinois Regional
Commuter R.R. Corp., 201 Ill. 2d 260, 273-74, 775 N.E.2d 964 (2002)).
¶ 18 Here, the trial court gave a modified jury instruction, modeled on Illinois Pattern Jury
Instructions, Civil, Nos. 30.01, 30.05, and 30.05.01 (2006), instructing the jury as to the
possible elements of damages claimed by the plaintiff. The modified instruction informed
the jurors that they could award damages for pain and suffering and also for emotional
distress, if they determined that such damages were proved to have resulted from the
defendant’s negligence.
¶ 19 The defendant initially contends that the modified instruction was improper because
damages for emotional distress may be awarded only where a cause of action for intentional
or negligent infliction of emotional distress has been asserted, which the plaintiff did not do
in this case. In fact, the rule in Illinois is just the opposite. Damages for emotional distress
are available to prevailing plaintiffs in cases involving personal torts such as medical
negligence. Clark v. Children’s Memorial Hospital, No. 108656, slip op. at 28 (Ill. May 6,
2011) (citing Cummings v. Jha, 394 Ill. App. 3d 439, 915 N.E.2d 908 (2009)).
¶ 20 The defendant further claims that the modified jury instruction and the verdict form,
which included a separate line for emotional-distress damages, induced the jury to grant the
plaintiff a double recovery for her mental pain and suffering. This claim, however, is not
supported by the record. It is presumed that the jury understood and followed the court’s
instructions. See McDonnell v. McPartlin, 192 Ill. 2d 505, 535, 736 N.E.2d 1074 (2000);
Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 100, 887 N.E.2d 656 (2008). Here, there is
no indication in the record that the jury was confused in its determination of the appropriate
amount of damages for the plaintiff’s mental pain and suffering. Also, the defendant did not
submit any special interrogatories, the answers to which would have demonstrated whether
a double recovery had been awarded. In the absence of some supporting evidence in the
record, the defendant’s claim that the modified instruction and the verdict form induced the
jury to award the plaintiff a double recovery for her mental distress is mere conjecture.
Consequently, we find no abuse of discretion in the trial court’s instructions to the jury.
¶ 21 Finally, the defendant claims that the trial court erred in denying his request for a setoff
based on the plaintiff’s prior settlement with Alexian Brothers. The determination of whether
a defendant is entitled to a setoff is a question of law and, therefore, subject to de novo
review. Thornton, 237 Ill. 2d at 115-16.
¶ 22 Although the settlement of claims is to be encouraged, Illinois also has a public policy
of limiting a plaintiff to one recovery for a single injury and of protecting the financial
interests of nonsettling parties. Patton v. Carbondale Clinic, S.C., 161 Ill. 2d 357, 372, 641
N.E.2d 427 (1994). Thus, section 2(c) of the Joint Tortfeasor Contribution Act provides that
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a settlement reduces the amount of recovery against another defendant liable for the same
injury by the amount stated in the release, or by the actual consideration paid for the release.
740 ILCS 100/2(c) (West 2008); Pasquale v. Speed Products Engineering, 166 Ill. 2d 337,
368, 654 N.E.2d 1365 (1995); Patton, 161 Ill. 2d at 372. Generally, a nonsettling party
seeking a setoff bears the burden of proving what portion of a prior settlement was allocated
or attributable to its share of the liability. Pasquale, 166 Ill. 2d at 369. Yet, a problem arises
where a prior settlement has not been allocated among the various claims at issue in the
earlier case. See Patton, 161 Ill. 2d at 370-71 (citing Betts v. Manville Personal Injury
Settlement Trust, 225 Ill. App. 3d 882, 900, 588 N.E.2d 1193 (1992)). The supreme court had
held that, where a settlement provides compensation for multiple claims and the plaintiff fails
to apportion the damages accordingly or request that the trial court exercise its discretion to
apportion the settlement proceeds, a subsequent defendant is not obligated to bear the burden
of proving what portion of the plaintiff’s previous settlement should be set off or be denied
a setoff. Patton, 161 Ill. 2d at 371 (citing Betts, 225 Ill. App. 3d at 900); see also Pasquale,
166 Ill. 2d at 369 (citing Patton, 161 Ill. 2d at 370).
¶ 23 Here, the defendant presented evidence that the plaintiff and her former husband received
a payment of $70,000 in exchange for a covenant not to sue Alexian Brothers. Because that
settlement was not apportioned in any way, it was the plaintiff’s, rather than the defendant’s,
burden to establish that the entire unallocated settlement amount of $70,000 was not
attributable to her medical negligence cause of action, as opposed to Aleco’s claim for loss
of consortium. See Patton, 161 Ill. 2d at 370-71 (citing Betts, 225 Ill. App. 3d at 900). In
light of the fact that the defendant was not a party to the prior settlement negotiations and
could not request that the settlement be allocated at the time it was executed, we hold that
the defendant should not bear the burden of the plaintiff’s failure to properly apportion the
settlement with Alexian Brothers.
¶ 24 Moreover, contrary to the plaintiff’s assertion, the trial court that presided over the instant
litigation against the defendant could not apportion the Alexian Brothers settlement because
it was not involved in approving that settlement and did not hear any of the evidence
pertaining to Aleco’s loss-of-consortium claim. See Patton, 161 Ill. 2d at 370. Since the prior
settlement was accomplished outside of all judicial purview, the defendant had no
opportunity to seek a judicial apportionment and cannot be faulted for failing to do so.
¶ 25 In reaching this conclusion, we note that the cases cited by the plaintiff predate Patton
and are factually distinguishable in that they did not involve circumstances where the
defendant seeking the setoff was not a party to the litigation in which the prior settlement was
reached and approved. See Kipnis v. Meltzer, 253 Ill. App. 3d 67, 625 N.E.2d 320 (1993);
Johnson v. Belleville Radiologists, Ltd., 221 Ill. App. 3d 100, 581 N.E.2d 750 (1991);
Houser v. Witt, 111 Ill. App. 3d 123, 443 N.E.2d 725 (1982); see also Thornton, 237 Ill. 2d
at 117 (recognizing that the holding in Patton applied only where the defendant was not a
party to the case underlying the prior settlement); Pasquale, 166 Ill. 2d at 372 (same).
Consequently, we hold that the trial court should have granted the defendant’s posttrial
motion for a setoff.
¶ 26 Pursuant to our authority under Illinois Supreme Court Rule 366(a) (eff. Feb. 1, 1994),
we now grant that motion, find that the defendant is entitled to a setoff of $70,000 against
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the jury’s verdict of $500,500, and so order. See Dick v. Gursoy, 124 Ill. App. 3d 185, 189,
471 N.E.2d 195 (1984). In all other respects, the judgment of the circuit court of Cook
County is affirmed.
¶ 27 Affirmed in part, reversed in part, and modified.
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