2011 IL App (1st) 102579
Ill. App. Ct.2011Background
- Plaintiff Lisa Babikian sued Dr. Richard Mruz for medical negligence from a February 2000 laparoscopy at Alexian Brothers; the transverse colon was perforated, necessitating immediate repair by another surgeon.
- Postoperative outcomes included colostomy with later reversal, ileus, multiple incisions causing hernias, and permanent abdominal pain with subsequent mental health decline and suicidal hospitalization.
- Prior to suit, Babikian and her husband Aleco settled with Alexian Brothers for $70,000 under a covenant not to sue, with no apportionment of damages.
- Plaintiff and Aleco pursued the medical malpractice action; Aleco later dismissed his loss-of-consortium claim after divorce.
- During discovery, defendant disclosed as a Rule 213(f)(2) controlled expert willing to testify about standard of care; plaintiff and Aleco disclosed the covenant not to sue and settlement amount.
- Before trial, defendant sought to preclude evidence of failed board certification; at trial he testified as adverse witness that he was not board certified and had not taken the oral portion of the board exam; defense did not contemporaneously object to this testimony or to related closing arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Board certification evidence admissibility | Babikian argues evidence of lack of board certification is relevant to standard of care. | Mruz argues such evidence should be excluded or limited; trial court properly conditioned admissibility on expert testimony. | forfeited on appeal; even if preserved, no reversible error |
| Damages instruction for pain, suffering, and emotional distress | Court abused discretion by allowing separate emotional-distress damages. | Damages for emotional distress are permissible in medical-negligence actions; instruction appropriate. | proper; no abuse of discretion |
| Setoff for prior settlement with Alexian Brothers | Setoff should be denied because allocation of the settlement was unadjudicated and plaintiff bears burden to apportion. | Setoff should be granted against the unallocated $70,000 since settlement related to the same injury. | trial court erred; defendant entitled to a $70,000 setoff |
Key Cases Cited
- Patton v. Carbondale Clinic, S.C., 161 Ill.2d 357, 204 Ill.Dec. 203, 641 N.E.2d 427 (1994) (allocation of settlement; setoff burden on nonsettling defendant when unallocated)
- Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 211 Ill.Dec. 314, 654 N.E.2d 1365 (1995) (apportionment and setoff principles for prior settlements)
- Thornton v. 237 Ill.2d 100, 237 Ill.2d 100, 340 Ill.Dec. 557, 928 N.E.2d 804 (2009) (Supreme Court Rule 366(a) / setoff authority in Illinois)
- Rockwood v. Singh, 258 Ill.App.3d 555, 196 Ill.Dec. 708, 630 N.E.2d 873 (1993) (evidence regarding age, practice, and board certification admissible when physician testifies as expert)
- McCray v. Shams, 224 Ill.App.3d 999, 167 Ill.Dec. 184, 587 N.E.2d 66 (1992) (admissibility of credentials and expertise of expert witness)
- Simmons v. Garces, 198 Ill.2d 541, 261 Ill.Dec. 471, 763 N.E.2d 720 (2002) (preservation requirement for evidentiary rulings)
- Velarde v. Illinois Central R.R. Co., 354 Ill.App.3d 523, 289 Ill.Dec. 529, 820 N.E.2d 37 (2004) (forfeiture for closing-argument objections)
- Clark v. Children's Memorial Hospital, 353 Ill.Dec. 254, 955 N.E.2d 1065 (2011) (emotional-distress damages in medical negligence)