Oko v. Rogers

JUSTICE HEIPLE

delivered the opinion of the court:

This appeal arises out of a medical malpractice action brought by the plaintiff, June Oko, against the defendant, Dr. James Rogers, who appeared pro se. The complaint alleged that the defendant was negligent in performing hemorrhoid surgery on the plaintiff. A jury verdict was returned in favor of the defendant.

The issues on appeal concern whether the plaintiff was denied her right to a fair trial due to the conduct of the defendant acting as his own counsel. An issue is also raised as to the jury instructions. Relevant facts will be presented as needed.

The plaintiff first argues that the trial court erred in not granting a mistrial due to an improper comment made by the defendant in his opening statement. The defendant told the jury that the plaintiff had asked him to write a letter saying that her hemorrhoids had been caused by a work-related accident so she could collect insurance money. The defendant’s theory was that the plaintiff left his care because he refused to write the letter. Therefore, the defendant was not liable for the plaintiffs post-operative complications since she refused to remain in his care and follow his instructions.

The plaintiff moved for a mistrial characterizing the defendant’s comment as an unfounded charge of fraud. The court held that the plaintiff’s motion was premature and advised the plaintiff to renew the motion if the defendant failed to “tie-up” his allegations. The defendant presented no supporting evidence and the plaintiff did not renew her motion at the close of the defendant’s case.

When a trial court reserves a ruling, the movant must seek a decision in order to preserve the motion for review. (Terracina v. Castelli (1979), 80 Ill. App. 3d 475.) The plaintiff was instructed to renew her motion for a mistrial if the defendant failed to substantiate his charges. It is true that the plaintiff moved for a mistrial a second time, but this motion was in response to comments made by the defendant when he cross-examined one of plaintiff’s expert witnesses. To the extent that this motion sought to renew the prior motion for a mistrial, it was untimely because the defendant had not presented any evidence.

Had the motion been renewed at the proper time during trial, the court might have been able to cure any error via cautionary instructions. By failing to renew the motion, the plaintiff deprived the court of this opportunity. The fact that the issue was raised in the plaintiff’s post-trial motion does not cure this defect. It was the plaintiff’s obligation to settle the issue at trial. It is too late to do so once judgment has been entered. Therefore, the issue is waived.

Next, the plaintiff argues that the court erred in giving the jury two different instructions on the duty of care owed by a physician. The plaintiff tendered Illinois Pattern Jury Instruction (IPI), Civil, No. 105.02 (2d ed. 1971), which defined the duty owed by a physician holding himself out as a specialist. The defendant admitted that he held himself out as a specialist in rectal surgery. The court also gave defendant’s IPI Civil No. 105.01, over the plaintiff’s objection, which defined the duty owed by a general practitioner. The defendant agreed that No. 105.01 should not be given since he was a specialist, but the court saw no conflict between the instructions and gave both. The plaintiff contends that a specialist should be held to a higher standard of care. Therefore, plaintiff argues that it was error for the court to permit the jury to base its verdict on the standard of care owed by a general practitioner.

The comment to IPI Civil No. 105.02 indicates that as a general rule, a specialist is held to a higher degree of skill, care and learning than the average practitioner. Thus, in most jurisdictions, it is error to give an instruction which applies to a specialist the degree of skill and care required of a general practitioner. (61 Am. Jur. 2d Physicians, Surgeons sec. 363 (1981).) Illinois is an exception.

In Schireson v. Walsh (1933), 354 Ill. 40, 57, the Illinois Supreme Court rejected the idea that one who held himself out as the world’s greatest surgeon had to possess a higher degree of skill than is expected of the average physician:

“The law of this State is that a physician and surgeon is required to possess, and in his practice to use, reasonable skill— not, perhaps, the highest degree of skill that one learned in the profession may acquire, but reasonable skill such as physicians in good practice ordinarily use and would bring to a similar case in that locality. *** [We] are not disposed to depart from that rule or to enlarge the professional requirements of a physician or surgeon in the practice of his profession ***.”

This is still the law in Illinois (Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634), and we are in no position to depart from supreme court precedent and adopt the rule followed in other jurisdictions. Therefore, no error occurs when a court applies to a specialist the standard of care required of a general practitioner.

The plaintiff’s final arguments relate to the defendant’s pro se status. The plaintiff contends that she was denied a fair trial because: (1) the trial court attempted to assist the defendant in presenting his case; (2) the defendant was argumentative and used leading questions when he examined witnesses, and; (3) the defendant made an improper closing argument.

The trial in this cause spanned over five days and produced a record which is 661 pages long. After a thorough and detailed review of this record, we are unable to conclude that the plaintiff was denied a fair trial. Although the defendant on numerous occasions departed from the rules of trial court practice, his excursions were usually cut short by objections which were sustained and repeated until the defendant conformed to proper procedures. The defendant was not permitted to do as he pleased.

Furthermore, the trial court took steps to make sure that the defendant’s unorthodox questions did not confuse the jury. Whenever necessary, the trial judge would make his own brief and limited examination of a witness in order to clarify the testimony. The court also guided the defendant through parts of his own testimony in order to avoid a long narrative on irrelevant matters.

Considerable latitude must be allowed a judge in conducting a trial. The conduct and remarks of the judge are grounds for reversal only if they are such as would ordinarily create prejudice in the minds of the jury. (Clamage v. Shapiro (1977), 48 Ill. App. 3d 90.) We find that the judge remained within his proper provinces in the present case. The judge gave due consideration to the defendant’s pro se status but was never reluctant to sustain the plaintiff’s objections when necessary. Although the judge would carefully explain to the defendant why certain objections were being sustained, there is no evidence that he conducted the defendant’s case for him or failed to remain impartial.

As any judge or lawyer knows, the conduct of a jury trial with a pro se litigant who is unschooled in the intricacies of evidence and trial practice is a difficult and arduous task. The heavy responsibility of ensuring a fair trial in such a situation rests directly on the trial judge. The buck stops there. There is no law that requires a litigant to have a lawyer. The lawyer for the opposing side cannot be expected to advise the opposing party who is pro se. The judge cannot presume to represent the pro se party. In order that the trial proceed with fairness, however, the judge finds that he must explain matters that would normally not require explanation and must point out rules and procedures that would normally not require pointing out. Such an undertaking requires patience, skill and understanding on the part of the trial judge with an overriding view of a fair trial for both sides. We believe that Judge Cerri adequately faced up to that high responsibility in this case.

The plaintiff is entitled to a fair trial, not one that is error free. If it appears that an error has not affected the outcome below or if it can be seen from the entire record that no injury was done, the judgment is not to be disturbed. (Tripp v. Bureau Service Co. (1978), 62 Ill. App. 3d 998.) The plaintiff has failed to demonstrate how the outcome below would have been different if the defendant had retained an attorney. Taking into account the conduct of both the court and the defendant, it is not apparent from the record that the plaintiff was denied her right to a fair trial. Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

SCOTT, J., concurs.