2023 IL App (4th) 220643
Ill. App. Ct.2023Background
- In Oct. 2007 Dr. Thomas Rossi performed gastric bypass on Cynthia (Cindy) Overstreet; he prescribed oral B-complex vitamins. After repeated postoperative nausea/vomiting she was hospitalized multiple times and ultimately became comatose in Dec. 2007 from Wernicke’s encephalopathy (thiamine deficiency). She died in 2014.
- Cindy’s sister found an online case report about post-bariatric Wernicke’s and gave it to family, who provided it to treating clinicians; IV thiamine was started but Cindy never regained consciousness.
- The Estate sued Rossi (and his surgical group) for negligence; after a Sept. 2021 jury verdict the Estate received $7,745,400 but the jury awarded $0 for (1) loss of society to Cindy’s son Tony and (2) pain and suffering; the trial court declined to give a separate disfigurement instruction.
- Posttrial the court (1) reduced the award under 735 ILCS 5/2‑1205 to account for medical payments and write‑offs, (2) awarded prejudgment interest under the 2021 amendment to 735 ILCS 5/2‑1303(c), and (3) denied new‑trial motions from both sides.
- On appeal the Fourth District affirmed most rulings but reversed the 2‑1205 reduction as to medical charges that were merely written off (not paid or payable) and directed reduction only by amounts actually paid by the insurer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a disfigurement jury instruction was required for a comatose plaintiff | Disfigurement need not require the victim’s awareness; evidence (video, contractures, posturing, ulcers) showed disfigurement | Disfigurement requires conscious awareness; no evidence Cindy knew of any disfigurement | Affirmed trial court: awareness is required for separate disfigurement damages in this context; court may instead include appearance effects within loss‑of‑normal‑life damages |
| Whether the $0 award for son’s loss of society was against the manifest weight of the evidence | Estate: jury should have awarded loss‑of‑society damages; direct testimony from Tony not required; presumption of loss supports award | Rossi: evidence showed Tony had longstanding behavioral/mental issues predating injury; presumption rebutted | Affirmed denial of new trial: $0 award was not against manifest weight; jury reasonably credited preexisting problems and family testimony |
| Whether trial court properly reduced judgment under 735 ILCS 5/2‑1205 by including medical bills that had been written off by providers | Estate: section 2‑1205 allows reduction only for benefits "paid" or "payable"; write‑offs are neither and are not deductible | Rossi: Perkey (2d Dist.) permits reduction by written‑off amounts; trial court followed that precedent | Reversed in part: followed Miller (4th Dist.)—written‑off medical charges are not deductible under §2‑1205; remand to reduce only by amounts actually paid/payable (insurer payment) |
| Whether lay testimony about a found medical article prejudiced Rossi and warranted a new trial | Rossi: testimony by sister/mother that they found an article implied standard‑of‑care breach and prejudiced jury | Estate: article evidence was cumulative, experts addressed standard of care, and court admonished jury; any error cured | Affirmed denial of new trial: no undue prejudice (testimony cumulative; jury instructed to disregard and told to rely on expert testimony) |
| Whether 735 ILCS 5/2‑1303(c) (2021 prejudgment‑interest statute) is unconstitutional | Rossi: statute infringes jury trial right, causes double recovery/due‑process problems, is special legislation, and violated the three‑readings rule | Estate: statute is a legislative remedy (interest is statutory), rationally related to legitimate objectives; enrolled‑bill doctrine precludes judicial review of three‑readings compliance | Affirmed: statute upheld (interest is statutory, not a jury award of damages); applied prospectively per statute (accrual here began on statute’s effective date); enrolled‑bill doctrine bars judicial invalidation on three‑readings grounds |
Key Cases Cited
- Holston v. Sisters of the Third Order of St. Francis, 165 Ill.2d 150 (1995) (discusses disfigurement as recoverable damage and defines "disfigure")
- Miller v. Sarah Bush Lincoln Health Center, 2016 IL App (4th) 150728 (2016) (held §2‑1205 does not permit reduction for medical charges that were only "written off")
- Perkey v. Portes‑Jarol, 2013 IL App (2d) 120470 (2013) (Second District decision allowing reduction that included some written‑off charges; contrasted with Miller)
- Tri‑G, Inc. v. Burke, Bosselman & Weaver, 222 Ill.2d 218 (2006) (interest on judgments is recoverable only by statute; distinction between judgment and statutory right to interest)
- Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 157 Ill.2d 282 (1993) (judgment interest preserves economic value of award delayed by litigation)
- Flynn v. Vancil, 41 Ill.2d 236 (1968) (presumption of pecuniary loss under Wrongful Death Act is rebuttable and jury may give it no weight)
- Clarke v. Medley Moving & Storage, Inc., 381 Ill. App. 3d 82 (2008) (to recover for pain and suffering plaintiff must present evidence that injured party was conscious)
- Chicago City Ry. Co. v. Smith, 226 Ill. 178 (1907) (early authority discussing awareness in awards for disfigurement)
- Bernier v. Burris, 113 Ill.2d 219 (1986) (upheld statutory limitations affecting jury awards; analogized to statutes setting interest on judgments)