Tirado v. Slavin , 2019 IL App (1st) 181705 ( 2020 )

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Appellate Court Date: 2020.06.18
08:26:49 -05'00'
Tirado v. Slavin, 2019 IL App (1st) 181705
Appellate Court GLORIA TIRADO and CHRISTIAN TIRADO, Plenary Guardians of
Caption the Estate and Person of Gina Gutierrez, a Disabled Person, Plaintiffs-
Appellants, v. KONSTANTIN SLAVIN and GERALD OH,
Defendants-Appellees.
District & No. First District, Second Division
No. 1-18-1705
Filed December 24, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 13-L-7120; the
Review Hon. James M. Varga, Judge, presiding.
Judgment Affirmed.
Counsel on Eugene Hardiman and Patricia A. Hardiman, of Law Offices of
Appeal Eugene Hardiman, Ltd., of Chicago, for appellants.
Karen Kies DeGrand, Sherri M. Arrigo, and Timothy L. Hogan, of
Donohue Brown Mathewson & Smyth LLC, of Chicago, for appellees.
Panel JUSTICE COGHLAN delivered the judgment of the court, with
opinion.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the
judgment and opinion.
OPINION
¶1 Gloria Tirado and Christian Tirado, plenary guardians of Gina Gutierrez’s estate and
person, brought a medical malpractice action against Konstantin Slavin, M.D., and Gerald Oh,
M.D., alleging that the physicians negligently performed Gutierrez’s spinal surgery and were
negligent in their follow-up care. In response, Dr. Slavin raised an affirmative defense of
contributory negligence for Gutierrez’s failure to seek treatment and follow medical advice.
The case proceeded to jury trial, and during plaintiff’s closing argument, Dr. Slavin and his
counsel came to the aid of an ill juror. Plaintiffs moved for mistrial the following morning,
which the trial court denied. The trial court entered judgment on a verdict for Dr. Slavin 1 and
denied plaintiffs’ motion for a new trial. For the reasons set forth below, we affirm the trial
court’s denial of plaintiffs’ motion for mistrial and posttrial motion for a new trial.
¶2 BACKGROUND
¶3 On June 21, 2011, Dr. Slavin surgically removed a cyst from Gina Gutierrez’s lower spine.
Ordinarily, patients are kept overnight following this type of surgery; however, Gutierrez chose
to stay an extra night and was discharged from the hospital on June 23, 2011. At that time,
Gutierrez complained of throbbing headaches upon sitting and pain at the surgical site. A
cerebral spinal fluid (CSF) leak is a potential complication associated with this type of surgical
procedure, signs of which include positional headaches (those that worsen with movement),
nausea, and vomiting. Gutierrez also suffered from chronic headaches and dizziness and had
experienced nausea and vomiting after anesthesia in the past. At the time she was discharged,
Dr. Slavin believed that Gutierrez’s postsurgical headaches were consistent with her pattern of
chronic headaches, because they did not worsen when she stood up or moved around.
¶4 On June 28, 2011, Gloria Tirado called the clinic and reported that Gutierrez was
experiencing headaches and increased redness and swelling at the surgical site but did not have
active drainage or fever. Dr. Slavin and nurse Filoramo testified that Tirado was advised to
bring Gutierrez to the emergency room at that time. Tirado denied being advised to go to the
emergency room. Tirado called the clinic again on July 1, 2011, and reported that Gutierrez
continued to wake up with headaches and would like stronger medication for her pain.
According to Dr. Slavin and nurse Filoramo, Dr. Slavin did not prescribe Gutierrez more
medication at that time; rather, Tirado was advised to bring Gutierrez to the clinic if her
symptoms did not subside. Tirado denied being advised to bring Gutierrez to the clinic. She
testified that nurse Filoramo advised her to double up on medication.
1
The trial court entered a directed verdict in favor of Dr. Oh on February 8, 2018. Plaintiffs do not
challenge this ruling on appeal.
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¶5 Gutierrez was readmitted to the hospital on either July 5 or July 6, 2011, 2 because she was
suffering from severe postoperative headaches and fluid had been draining from her incision
for about a week. She was diagnosed as having positional headaches and a CSF leak. Upon her
readmission, blood tests showed no signs of infection and Gutierrez was not suffering from
symptoms that would indicate meningitis, such as neck stiffness or nausea. In the afternoon or
early evening of July 6, Dr. Slavin requested a magnetic resonance imaging (MRI) scan, which
showed a collection of fluid outside of Gutierrez’s spinal canal. On July 7, 2011, Dr. Slavin
performed a blood patch procedure in an effort to reduce Gutierrez’s headaches, and he took a
sample of CSF, which again showed no signs of infection.
¶6 By the early morning of July 8, 2011, Gutierrez’s condition had significantly deteriorated,
and it was clear that the blood patch procedure had been unsuccessful. By 6 a.m. on July 8, her
pain level was at 10 out of 10. Around 8 a.m., Gutierrez began experiencing neck pain and a
fever, and her arm began shaking, so the nurse requested that Gutierrez undergo a computerized
tomography (CT) scan. On her way back from the CT scan, Gutierrez became unresponsive.
At or around that time, Dr. Slavin began treating Gutierrez with antibiotics for possible
meningitis, and she was transferred to the intensive care unit for close monitoring. He also
received results from a blood test performed earlier that morning, which indicated that
Gutierrez was suffering from an infection. At approximately 2:50 p.m. on July 8, Gutierrez
began turning blue, so she was intubated, and Dr. Slavin ordered medication to relieve possible
swelling and inflammation in her brain.
¶7 Around 4:43 p.m. on July 8, Gutierrez was taken for a second CT scan, which showed
severe brain swelling (cerebral edema) and herniation of the cerebellar tonsils. 3 Dr. Slavin
attempted to reduce the brain swelling using medication and hypertonic saline. An MRI was
performed around 9 p.m., which showed that Gutierrez had suffered a stroke at the bottom of
her brain.
¶8 Just after midnight on July 9, 2011, Dr. Slavin performed a craniectomy to relieve the
pressure in Gutierrez’s skull and remove the cerebral tonsils. He also repaired the CSF leak in
her lower back and noted that there was an infection, which likely caused meningitis.
¶9 At trial, plaintiffs presented testimony from John Merritt, M.D., regarding the extent of
Gutierrez’s injuries. Dr. Merritt testified that, as a result of cerebellar tonsil herniation and
brain stem compression, Gutierrez suffers from partial paralysis in all four limbs, incontinence,
inability to sit or bear weight, and involuntary muscle spasms. Among other conditions, she
also has involuntary eye spasms, double vision, headaches, and mood swings. Gutierrez has
impaired cognitive abilities and requires 24-hour skilled nursing care.
¶ 10 Plaintiffs also presented expert testimony from Mark Glickstein, M.D., and Robert
Erickson, M.D. Dr. Glickstein testified that the CT scans taken between July 6 and July 8
showed a progression of brain swelling and cerebellar tonsil herniation. Dr. Erickson testified
that Dr. Slavin deviated from the standard of care when he discharged Gutierrez after her first
2
There is conflicting testimony regarding the actual date of Gutierrez’s admission to the hospital in
July.
3
According to testimony elicited at trial, the cerebellar tonsils lie against the brainstem and, under
normal circumstances, float freely. When there is a herniation, the tonsils move down into a
compartment where they do not belong, compressing the blood vessels and cutting off oxygen to the
brain.
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hospitalization, when he failed to treat her brain swelling on the morning of July 8, and when
he failed to immediately treat Gutierrez at or around the time of the second CT scan around
4:43 p.m. on July 8.
¶ 11 During Dr. Erickson’s testimony, defense counsel repeatedly objected to questions
regarding the chronology of treatment Dr. Slavin should have followed after the 4:43 p.m. CT
scan on July 8, arguing that Dr. Erickson’s opinion on this issue was not disclosed in plaintiffs’
Rule 213 disclosures. See Ill. S. Ct. R. 213 (eff. Jan. 1, 2018). The trial judge ultimately
sustained the objections and allowed Dr. Erickson to testify that “[the] standard of care at that
point would require a timely administration of effective medications such as Mannitol or
hypertonic saline or it was mandatory that the patient be taken to the operating room for a
surgical procedure with the same goal in mind; that is, to lower the intracranial pressure as
soon as possible.”
¶ 12 The defense presented testimony from Dr. Slavin and experts Dr. Nitu Saran, Dr. Susan
Payvar, and Dr. Harel Deutsch. Dr. Slavin testified that he met the applicable standard of care
in treating Gutierrez. Dr. Saran and Dr. Payvar testified regarding their interpretations of the
CT scans conducted on July 6 and 8. Dr. Deutsch testified that Dr. Slavin met the standard of
care and that Gutierrez’s failure to come to the hospital sooner increased her risk of getting
meningitis.
¶ 13 During plaintiffs’ closing argument, a juror became ill. The judge announced “we will need
a break,” and instructed the ill juror to “go to the jury room.” There is no contemporaneous
record of the events that transpired; however, it is undisputed that the ill juror went to the jury
room, followed by two other jurors, one of whom is a registered nurse. At some point, someone
called from the jury room that the ill juror was not breathing. Defense counsel, who is also a
nurse, stated in an affidavit that she “immediately proceeded to the jury to provide emergency
assistance as necessary.” Dr. Slavin followed behind her.
¶ 14 According to defense counsel, the following occurred when she entered the jury room: “the
juror was lying on the floor, apparently unresponsive and pale in color. As I knelt to feel for a
pulse, the juror awoke and was speaking and seemed to be stable. At that point, I believe the
deputy instructed me to return to counsel table, which I did immediately. As I exited the jury
room, I asked if there was a nurse present, and a female sitting on the benches in the back of
the [courtroom] responded to assist the juror until paramedics arrived. After being examined
by the paramedics, the juror declined further treatment.” The ill juror requested to be
discharged and was replaced by an alternate juror. Closing arguments resumed, and after being
instructed on the law, the jurors retired to the jury room.
¶ 15 The next morning, plaintiffs’ counsel presented an emergency motion for mistrial. The
judge denied the motion, finding that the disruption during closing arguments was not
prejudicial. The judge noted that “if anything happened, it was quick and human ***. And then
[the jury] had a full night to cool off.” The jurors were not questioned regarding what impact,
if any, these events had on their ability to fairly decide the case.
¶ 16 The jury returned a verdict in favor of Dr. Slavin. The trial court denied plaintiffs’ posttrial
motion, and plaintiffs timely appealed.
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¶ 17 ANALYSIS
¶ 18 Plaintiffs assert that they are entitled to a new trial, because (1) Dr. Slavin and his attorney
assisting an ill juror during closing arguments warranted a mistrial, (2) the defense team had
ex parte communications with jurors, (3) defense counsel violated an in limine order during
closing arguments, (4) the trial court erroneously sustained defendant’s objection to testimony
by Dr. Erickson, (5) the trial court erroneously refused plaintiffs’ jury instruction, and (6) the
trial court erred in denying plaintiffs’ motion for partial summary judgment regarding
contributory negligence.
¶ 19 Defendant urges us to disregard the arguments set forth in plaintiffs’ brief for failure to
comply with Illinois Supreme Court Rule 341(h)(1)-(9) (eff. May 25, 2018). The purpose of
these procedural rules is to require the parties to present clear and orderly arguments to the
reviewing court so that we can properly understand, evaluate, and resolve the issues raised.
Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7. With the exception of
plaintiffs’ arguments regarding denial of summary judgment, the errors here are not so
egregious as to hinder or preclude our review of the issues involved. Id. ¶ 12; Budzileni v.
Department of Human Rights, 392 Ill. App. 3d 422, 440 (2009).
¶ 20 Waiver
¶ 21 Relying on DiCosolo v. Janssen Pharmaceuticals, Inc., 2011 IL App (1st) 093562, and
Bauer v. Timucci, 33 Ill. App. 3d 1051 (1975), defendant first argues that plaintiffs’ motion for
mistrial was untimely and they failed to preserve their objections for review. Plaintiffs’ counsel
asserts that he sufficiently objected when defense counsel entered the jury room to assist the
ill juror and that he timely presented plaintiffs’ motion for mistrial. For the first time, in their
reply brief and at oral arguments, plaintiffs also asserted that the court is required to take notice
of irregularities in proceedings where the interests of an injured party with special needs are
involved, despite a party’s failure to object, relying on Leonard v. Pitstick Dairy Lake & Park,
Inc., 202 Ill. App. 3d 817 (1990), and Muscarello v. Peterson, 20 Ill. 2d 548 (1960). We do not
disagree that disabled individuals are entitled to added protections under the law; however,
plaintiffs’ reliance on Leonard and Muscarello to support their argument is misplaced, as both
courts specifically referred to protections for injured minors.
¶ 22 Nonetheless, we do not find DiCosolo and Bauer instructive on the issue of timeliness. In
DiCosolo, the defendant failed to contemporaneously object but moved for mistrial following
plaintiff’s allegedly inflammatory closing argument. DiCosolo, 2011 IL App (1st) 093562,
¶¶ 62-63. We noted that a pattern of failing to take steps to allow any “corrective” action to be
taken and later claiming reversible error on appeal should not be condoned; however, we did
not decide the issue of waiver. Rather, we concluded that “[w]aiver or forfeiture aside *** the
comments [did] not warrant a new trial.” (Emphasis added.) Id. ¶ 64.
¶ 23 In Bauer, a plaintiff began swaying and sobbing during closing arguments, and defense
counsel brought the matter to the court’s attention but failed to move for a mistrial. Bauer, 33
Ill. App. 3d at 1052. After the jury returned a verdict for plaintiff, the defendant filed a posttrial
motion for a new trial, based on the plaintiff’s improper conduct during closing arguments. Id.
We held that the defendant waived the matter of plaintiff’s conduct as a ground for his motion
for a new trial, by failing to timely move for a mistrial. Id. at 1057. The function of the
timeliness requirement “is not simply to avoid a second trial, but to avoid a second jury trial
where the first jury trial has reached the stage of a returned verdict.” (Emphasis added.) Id. at
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1056. Had the motion for a mistrial been timely made and allowed, a second trial could not
have been avoided, but a second verdict could have. Id.
¶ 24 Defendant also cites York v. El-Ganzouri, 353 Ill. App. 3d 1 (2004), and McMath v.
Katholi, 191 Ill. 2d 251 (2000), to support his contentions that plaintiffs failed to preserve their
objections for review, because they did not contemporaneously object to proceeding with trial,
and that they consented to the errors. However, in York, the defendant failed to make any
objection in the trial court and raised his objections to voir dire proceedings for the first time
on appeal. York, 353 Ill. App. 3d at 10. In McMath, the plaintiff misled the trial court as to the
law which governed the case and took a contrary position on appeal. McMath, 191 Ill. 2d at
255-56. Neither of these circumstances is present here.
¶ 25 As there is no contemporaneous record of plaintiffs’ objections during the incident, or lack
thereof, we can only assume that plaintiffs’ counsel only objected to defense counsel’s
presence in the jury room, because that fact is undisputed. However, plaintiffs raised their
objections in their motion for mistrial the morning after the incident and prior to a returned
jury verdict. Had the trial court allowed the motion for mistrial, the purpose of the timeliness
requirement would have been met, because the court would have avoided a second verdict. We
do not find that plaintiffs’ motion for mistrial was untimely and find that it was sufficient to
preserve the alleged errors for review.
¶ 26 Next, defendant argues that plaintiffs’ mistrial argument is “all but unreviewable,” because
plaintiffs failed to secure a record or bystander’s report of the events that occurred during the
recess, in accordance with Illinois Supreme Court Rule 323(c) (eff. July 1, 2017). We disagree.
Plaintiffs’ failure to provide a record or bystander’s report hinders our review of the
circumstances, but not so significantly that we cannot review the trial court’s decision.
Plaintiffs provided a record of the proceedings on their motion for mistrial and posttrial motion,
in which the judge and the attorneys for the parties recount the circumstances that occurred off
the record.
¶ 27 Standard of Review
¶ 28 At the outset, the parties disagree on the applicable standard of review. For the first time
in their reply brief, plaintiffs assert that we review the “unusual events of assistance to the ill
juror and the ex parte interactions” de novo “since they involve only questions of law,” relying
on Williams v. Staples, 208 Ill. 2d 480 (2004). This is incorrect. The Williams court was asked
to construe a statute, which presents an issue of law that we review de novo. Id. at 487.
¶ 29 It is well established that the grant or denial of a mistrial and a posttrial motion rests within
the sound discretion of the trial court and, unless it affirmatively appears that the trial court
abused its discretion, the reviewing court will not interfere. Colls v. City of Chicago, 212 Ill.
App. 3d 904, 953 (1991); Bauer, 33 Ill. App. 3d at 1057. A trial court abuses its discretion only
where no reasonable person would take the view adopted by the trial court. Peach v.
McGovern, 2019 IL 123156, ¶ 25.
¶ 30 Mistrial
¶ 31 Turning to the merits of plaintiffs’ appeal, we find that the trial court did not abuse its
discretion in denying plaintiffs’ motion for mistrial. A mistrial should be granted when there
is an occurrence of such character and magnitude as to deprive a party of a fair trial and the
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moving party demonstrates actual prejudice as a result. Bianchi v. Mikhail, 266 Ill. App. 3d
767, 777 (1994).
¶ 32 There is only one case in which our supreme court has considered whether a new trial is
necessary when a physician defendant renders assistance to a juror during a medical
malpractice trial. In Campbell v. Fox, 113 Ill. 2d 354 (1986), a juror lost consciousness during
plaintiff’s opening statement, and the defendant doctor carried her from the jury box to counsel
table to render aid. Id. at 357. An ambulance was called, and the juror was taken to the hospital,
where she recovered. Id. The plaintiff immediately moved for a mistrial. Id. The trial court
denied the motion, allowing for a limited voir dire to ascertain what effect, if any, the
occurrence had on the jurors. Id. “All the jurors answered that they could still be fair and
impartial and that the [defendant doctor’s] treatment would not prejudice them in any way.”
Id. at 358. The trial resumed, ending in a verdict favorable to the defendant. Id. The appellate
court affirmed, and the supreme court reversed. Id. In holding that “a new trial [was]
necessary,” the court observed that “the effect of the unusual events in this case *** was so
apparent as to have unquestioned influence upon the jury’s ability to try the issues in
controversy fairly.” (Internal quotation marks omitted.) Id. The court also acknowledged that
“it [was] doubtful whether the jurors could make a dispassionate evaluation of the defendant’s
testimony after witnessing his attempt to render immediate treatment to one of their fellow
jurors.” Id. at 359.
¶ 33 Plaintiffs argue that the “extraordinary” and “chaotic” events in this case are more
persuasive than those in Campbell. We disagree, and in fact, the record belies plaintiffs’
argument. Plaintiffs’ own conduct fairly supports the inference that nothing “chaotic” or
“extraordinary” occurred when the juror became ill. No objections to continuing with the
proceedings were made, and the attorneys for both sides agreed that the ill juror could stay or
leave. Plaintiffs’ counsel proceeded with closing arguments as if nothing had happened. He
did not request that the court allow him to make a record of the “chaotic” events, nor did he
request that the court conduct a limited voir dire or admonish the jury prior to dismissing them
or at any other time. The trial judge even conferred with the attorneys regarding whether they
preferred to let the jurors deliberate or wanted them to return the next morning. Plaintiffs’
counsel requested that the jurors return in the morning for deliberations, to which the trial judge
agreed. The attorneys for the parties also agreed that they would not return to court in the
morning. It was not until the next morning that counsel requested a mistrial after he was
“directed by the co-guardians to present [the] motion.”
¶ 34 Moreover, plaintiffs failed to point to anything in the record that would support a finding
that the events were extraordinary or that the verdict was the result of actual prejudice. The
trial judge “was observing everybody” during the incident and found that “they were startled,
but *** most of the jurors stayed in the courtroom” “[a]nd they weren’t even conversing.
Everybody was kind of surprised, but they weren’t like crying or weeping or visibly excited.
Everybody seemed kind of normal, their demeanors, personalities, attitudes.” The trial court
“[did not] see anything *** inflammatory or something that’s so grave or serious” and
observed that “[i]f anything happened, it was quick and human.” During the posttrial hearing,
the court observed that, even if defendant was in the jury room, “[h]e didn’t do anything. And
then the remaining jurors who were out there didn’t see him. So even if he goes in, he did not
administer any medical care. I don’t think he said anything; and, therefore, whoever is in the
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jury room saw that and the other remaining jurors in the jury box and courtroom didn’t even
see him not doing anything.”
¶ 35 In Campbell, the defendant rendered aid to the juror at the beginning of trial during the
plaintiff’s opening statement. Our supreme court noted that, even though the trial court allowed
a limited voir dire, “[t]he jurors could not know at the time the questions were asked that their
verdict in this case would depend so heavily on the parties’ credibility.” Id. The disruption in
the matter before us occurred during plaintiffs’ closing argument. The jurors had an
opportunity to evaluate the evidence and independently weigh the credibility of the witnesses
and the parties by that point in the trial. Plaintiffs provided an affidavit from one juror
recounting the events; however, the juror does not indicate that the situation influenced the
verdict in any way.
¶ 36 Because there is nothing in the record to demonstrate that the verdict was the result of
actual prejudice resulting in the denial of a fair trial, we find that the trial court did not abuse
its discretion in denying plaintiffs’ motion for mistrial and posttrial motion.
¶ 37 Ex Parte Communications
¶ 38 Our review of plaintiffs’ argument that ex parte communications in the jury room warrant
a new trial is severely limited by plaintiffs’ failure to cite pertinent authority or support their
arguments with relevant portions of the record. Plaintiffs’ reliance on Estes v. Texas, 381 U.S.
532 (1965), and Turner v. Louisiana, 379 U.S. 466 (1965), is misplaced, as neither case deals
with ex parte communications between attorneys and jurors. Furthermore, plaintiffs concede
that communications with the two jurors who were in the jury room are unknown and any
ex parte interactions were “out of sight and hearing.”
¶ 39 We are not a depository in which the appellant may dump the burden of argument and
research for his cause on appeal. Rosestone Investments, LLC v. Garner, 2013 IL App (1st)
123422, ¶ 18. Where an appellant’s brief contains numerous Rule 341 violations and impedes
our review of the case because of them, the court has the right to strike the brief and dismiss
the appeal. In re Marriage of Petrik, 2012 IL App (2d) 110495, ¶ 38. Accordingly, we cannot
review plaintiffs’ argument regarding ex parte communications and must strike this portion of
plaintiffs’ brief.
¶ 40 Violation of Order in Limine
¶ 41 Plaintiffs argue that defense counsel violated a trial court order in limine, barring counsel
from referring to the defendant as being sorry or regretting the outcome in this case.
¶ 42 The fact that plaintiffs failed to cite to any relevant authority aside, we agree that any
objections they have are waived. During defendant’s closing argument, counsel stated: “I
assure you that there is no one in the courtroom other than, obviously, the family who wishes
more than Dr. Slavin that he had been able to not only save her life but—,” at which point
counsel for plaintiffs objected. Plaintiffs’ counsel did not ask the court to rule on his objection
nor did he make any future objections or raise this matter until plaintiffs’ posttrial motion.
¶ 43 Plaintiffs’ failure to ask for a ruling or assert future objections resulted in waiver. In re
Marriage of Kocher, 282 Ill. App. 3d 655, 660 (1996) (even where a proper objection is made,
failure to obtain a ruling on the objection results in waiver); Jones v. Chicago Osteopathic
Hospital, 316 Ill. App. 3d 1121, 1132 (2000) (failure to object to a violation of an in limine
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order at trial forfeits the issue on appeal).
¶ 44 Dr. Erickson’s Testimony
¶ 45 Plaintiffs also argue that the trial court erred in sustaining defendant’s Rule 213 objections
to Dr. Erickson’s testimony. In their answers to defendant’s Rule 213 interrogatories, plaintiffs
asserted that Dr. Erickson would testify as to defendants’ deviations from the applicable
standard of care, which included “(xvi) Fail[ing] to prescribe or administer mannitol and/or
dexamethasone for the cerebral edema in a timely manner on 7-8-11” and “(xvii) Fail[ing] to
surgically treat the patient to lower the ICP in a timely manner on 7-8-11.”
¶ 46 During his deposition, Dr. Erickson testified as follows:
“Q. So neurosurgeons acting within the standard of care might address this situation
after the second CT scan differently, but something needed to be done, right?
A. Right. *** But at the point that the afternoon scan was obtained, now there was
no doubt about what was likely going on, and attempts should have been made in the
early evening to reverse the situation.
Q. And what would those attempts consist of?
A. There should have been some effort made to either equalize the pressure gradient
or go to surgery a little sooner. There are medical measures that are available that are
quicker than going to surgery. The osmotic diuretics can be given, hypertonic saline
might be given.
***
Q. Would an osmotic diuretic, would that be like Mannitol or something like that?
A. Yes, that’s perhaps the most familiar.
Q. So attempts with one of those medications would have been—could have been
more timely even than trying to address it surgically and would have been appropriate
correct?
A. Yes.
Q. Alternatively, Dr. Slavin could have taken her to surgery a little sooner, right?
A. Yes, that’s possible, yes.
Q. So in your view, basically once confronted with these findings on the CT scan
and her clinical condition, obviously, there were two options, one, to address it with
the medical interventions that you mentioned, and the other to take her to surgery
sometime earlier that evening, true?
A. True. *** But I think in general, the pressure has to be diminished in the head
area even before you’re able to go and repair the leak, for instance, which takes some
time and is logistically difficult.”
¶ 47 At trial, plaintiff’s counsel asked Dr. Erickson to detail the chronology of the treatment
required after the 4:43 p.m. CT scan on July 8, at which point defense counsel made a Rule
213 objection. After lengthy arguments from counsel and repeated Rule 213 objections, the
trial court ultimately sustained defendant’s objections to any testimony from Dr. Erickson that
implied that Dr. Slavin should have administered a chronology of treatment to meet the
standard of care. Dr. Erickson’s eventual testimony was as follows:
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“Q. Dr. Erickson, in your opinion, what did the applicable standard of care require
of Dr. Slavin to do after the second CT scan at 4:43 p.m. in the afternoon of July 8th,
2011?
A. Standard of care at that point would require a timely administration of effective
medications such as Mannitol or hypertonic saline or it was mandatory that the patient
be taken to the operating room for a surgical procedure with the same goal in mind;
that is, to lower the intracranial pressure as soon as possible.”
¶ 48 Rule 213(g) requires that, upon written interrogatory, a party must disclose the subject
matter, conclusions, opinions, qualifications, and all reports of expert witnesses who will offer
any opinion testimony. Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2018). Rule 213(g) limits expert
opinions at trial to the information disclosed in answer to a Rule 213 interrogatory or in a
discovery deposition. Morrisoe v. Pantano, 2016 IL App (1st) 143605, ¶ 37. The Rule 213
disclosure requirements are mandatory and subject to strict compliance by the parties. Id. “The
purpose of discovery rules, governing timely disclosure of expert witnesses, their opinions,
and the bases for those opinions, is to avoid surprise and to discourage strategic gamesmanship
amongst the parties.” Id. “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
that opinion.” Id. “That is to say, the witness’ testimony must be encompassed by the original
opinion.” Id.
¶ 49 A trial court’s ruling on the admission of evidence is an exercise of discretion and will not
be reversed absent an abuse of that discretion. Id. ¶ 38. “[I]f an opinion is important to the
theory of one’s case, it is essential that it and the bases [for it] be disclosed. This is a bright
line rule and must be followed.” Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 24
(1999).
¶ 50 Plaintiffs did not disclose that Dr. Erickson would testify regarding a chronology of
treatment that Dr. Slavin should have administered to meet the standard of care. Rather,
plaintiffs provided a list of deviations with no qualifying language or timeline. Further, during
his deposition, Dr. Erickson opined that, in order to meet the standard of care after the 4:43
p.m. CT scan, Dr. Slavin could have administered medications or he could have taken
Gutierrez to surgery earlier. Testimony that Dr. Slavin should have administered one treatment
before the other would provide a new basis for Dr. Erickson’s opinion that Dr. Slavin deviated
from the standard of care. Accordingly, we find that the trial court did not abuse its discretion
when it sustained defense counsel’s objections to the admission of undisclosed opinion
testimony.
¶ 51 Jury Instructions
¶ 52 Next, we reject plaintiffs’ argument that the trial court erred in refusing their tendered jury
instruction. Plaintiffs tendered proposed instructions consistent with Illinois Pattern Jury
Instructions, Civil, No. 20.01 (2011):
“Gina Gutierrez claims that she was injured and sustained damage, and that the
defendant, Konstantin Slavin, was negligent in one or more of the following respects:
(i) Improperly discharged Gina Gutierrez from the hospital on June 23, 2011.
(ii) Failed to order or administer mannitol or hypertonic saline in a timely manner.
(iii) Failed to perform a surgery in a timely manner.”
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Over counsel’s objection, the court combined (ii) and (iii) as follows: (i) “[i]mproperly
discharged Gina Gutierrez from the hospital on June 23, 2011,” and (ii) “failed to order or
administer mannitol or hypertonic saline in a timely manner or failed to perform a surgery in
a timely manner.” Plaintiffs argue that the second and third deviations were distinct and
occurred at different times, so the revised instruction misled the jury.
¶ 53 A jury instruction is justified if it is supported by some evidence in the record, and the trial
court has discretion in deciding which issues are raised by the evidence. Clarke v. Medley
Moving & Storage, Inc., 381 Ill. App. 3d 82 (2008). In reviewing this issue, we consider
whether, taken as a whole, the instructions fully, fairly, and comprehensively informed the jury
of the relevant legal principles. Id.
¶ 54 Here, plaintiffs’ own proposed instruction was nearly identical to the revised instruction
given to the jury and did not include any additional qualifying information. The revised
instruction informed the jury regarding the same issues as in plaintiffs’ proposed instruction
and was justified by the testimony offered by plaintiffs’ expert witness. Accordingly, we do
not find that the trial court abused its discretion in modifying plaintiffs’ tendered jury
instruction.
¶ 55 Partial Motion for Summary Judgment
¶ 56 Finally, plaintiffs argue, without providing a standard of review, citations of relevant
authority, or citation of relevant portions of the record, that the trial court erred in denying their
motion for partial summary judgment. For example, plaintiffs improperly rely on trial
testimony in support of their contention that the trial court should have granted their motion
for partial summary judgment prior to trial.
¶ 57 Furthermore, plaintiffs rely on Newell v. Corres, 125 Ill. App. 3d 1087 (1984), and Corlett
v. Caserta, 204 Ill. App. 3d 403 (1990); however, neither of these cases is supportive of
plaintiffs’ position. In Newell, a patient who was treated for a jaw fracture brought a medical
malpractice action against the surgeon who treated the fracture. Newell, 125 Ill. App. 3d at
1089. The trial court directed a verdict as to liability in plaintiff’s favor, upon which the jury
reached a comparative negligence verdict, reducing plaintiff’s damages by one-third. Id. at
1091. We reversed the trial court’s directed verdict, holding that a patient’s refusal of treatment
is a factor to be weighed by the jury in determining relative degree of negligence attributable
and presents a genuine question of fact as to causation and comparative negligence. Id. at 1094-
95.
¶ 58 In Corlett, a wrongful death suit was brought against a physician arising from the death of
a patient who refused medical treatment for religious reasons. Corlett, 204 Ill. App. 3d at 406.
The trial court granted the physician’s motion for summary judgment, and we reversed,
specifically holding that refusal of treatment “is an element which may be considered by the
fact finder in deciding issues of proximate cause and comparative fault, and that these questions
cannot be resolved as a matter of law in the instant appeal.” Id. at 407.
¶ 59 Rule 341(h)(7) requires that the appellant’s arguments contain his or her contentions and
the reasons therefor, with citations to authorities and to the pages of the record relied upon in
support of the appellant’s contentions. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2008). The
consequence of plaintiffs’ violation of these mandatory requirements in this case is forfeiture
of their argument. Niewold v. Fry, 306 Ill. App. 3d 735 (1999).
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¶ 60 CONCLUSION
¶ 61 The trial court did not abuse its discretion in denying the plaintiffs’ motion for mistrial and
posttrial motion.
¶ 62 Affirmed.
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