Adwent v. Novak
2017 IL App (1st) 160683
| Ill. App. Ct. | 2017Background
- Plaintiff Zbigniew Adwent sued Dr. Richard Novak for medical malpractice arising from two September 2010 office visits; jury returned verdict for defendant.
- Plaintiff disclosed James Hayes, a forensic document examiner, who opined that latent images on a billing page (page 21A) could not be correlated to any other handwritten entry in the provided chart and thus suggested the chart was not complete.
- Hayes conceded he could not identify the author of the latent writing, could not say the latent writing referred to Adwent, and could not determine the full content of the latent document.
- Defendant moved in limine to exclude Hayes’s testimony as speculative; the trial court granted the motion.
- At trial, evidence showed Novak recommended hospitalization or specialist care and that Adwent declined and later was hospitalized; Novak pleaded only failure to mitigate as an affirmative defense to the first amended complaint.
- Plaintiff requested a contributory-negligence jury instruction; the trial court refused because Novak had not pleaded contributory negligence in his operative answer. Plaintiff appealed both rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of expert (Hayes) | Hayes would show a page/document was missing from Adwent’s chart, supporting theory chart was altered and Novak failed to investigate/treat properly | Hayes’s opinion was speculative, could not tie latent images to Adwent or Novak, and had little probative value and high prejudice | Affirmed — exclusion proper; Hayes’s opinions were speculative and lacked necessary foundation |
| Refusal to give contributory-negligence instruction | Jury heard evidence of Adwent’s conduct (leaving hospital, incomplete history) so instruction should have been given to allow compromise verdict | Novak did not plead contributory negligence in the operative answer; giving the instruction was improper and, at any rate, would only reduce damages so plaintiff suffered no prejudice from its omission | Affirmed — no abuse of discretion; instruction not required and omission caused no prejudice because jury found for defendant |
Key Cases Cited
- People v. Becker, 239 Ill. 2d 215 (trial judge should balance expert probative value against prejudicial effect)
- Dyback v. Weber, 114 Ill. 2d 232 (expert opinion cannot be based on mere conjecture and guess)
- Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260 (abuse-of-discretion standard for refusing instructions)
- Dillard v. Walsh Press & Die Co., 224 Ill. App. 3d 269 (party must show prejudice from refusal to give instruction)
- Gruidl v. Schell, 166 Ill. App. 3d 276 (contributory negligence reduces plaintiff’s damages)
- People v. Reynolds, 294 Ill. App. 3d 58 (failure to include all instructions in record precludes review of instruction error)
- People v. Daily, 41 Ill. 2d 116 (same)