2024 IL App (4th) 230742
Ill. App. Ct.2024Background
- Glen Rowsey sued Dr. Igal Breitman and Rockford Health Physicians for alleged medical malpractice arising from complications following gastric band removal and hernia repair surgery in March 2016.
- Complications included internal bleeding requiring two additional same-day surgeries (one removing Rowsey's spleen) and subsequent deep vein thrombosis and pulmonary embolisms.
- Rowsey alleged that Dr. Breitman’s surgical performance failed to meet accepted standards, specifically in not converting to an open procedure after noticing spleen injuries, and not properly controlling bleeding.
- A jury returned a defense verdict, finding in favor of Dr. Breitman and Rockford Health Physicians on liability.
- Rowsey filed a posttrial motion contesting multiple evidentiary and procedural rulings and sought a judgment notwithstanding the verdict (n.o.v.) or a new trial; the trial court denied his motion.
- On appeal, Rowsey raised the same arguments, challenging evidentiary rulings, expert testimony, jury instruction limitations, and the partial use of res ipsa loquitur; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of certain medical bills as damages | Court erred in barring his medical bills without expert testimony re: causation/reasonableness | Bills irrelevant since liability not found; procedural requirements not met | No error; damage issues moot due to defense verdict on liability; rulings not prejudicial |
| Admissibility of testimony from plaintiff’s expert on future risk | Should have been able to present expert’s opinions on increased future harm risk | Opinion speculative and not based on accepted causation | No error; any exclusion on damages irrelevant as liability was not found |
| Defense expert testimony called speculative/unsubstantiated | Dr. Gersin gave speculative opinions unsupported by evidence | Testimony proper, based on records, risk factors, and standard expert latitude | No error; plaintiff failed to object contemporaneously, and testimony was within expert norms |
| Inquiry into expert’s retention through TASA agency | Defendants improperly prejudiced jury by suggesting "hired gun" expert via TASA | Plaintiff himself introduced evidence of TASA retention; no prejudice | Waived; plaintiff cannot challenge evidence he himself introduced |
| Jury instruction: emotional distress as separate damage item | Should have been instructed that emotional distress is distinct from pain and suffering | Single category sufficient; no prejudice in combining damages | No error; damage instruction did not impact finding on liability |
| Limitation of res ipsa loquitur instruction | Should have applied to both initial and subsequent surgeries | Expert did not testify that injuries typically result from negligence | No error; doctrine only applied where expert testimony supported exclusivity of negligence |
| Additur for additional medical bills | Trial court should add barred medical bills to verdict amount | No damages awarded because defense verdict; additur inappropriate | No application of additur given defense verdict; "nonsensical" in absence of damages |
Key Cases Cited
- Brown v. Decatur Mem'l Hosp., 83 Ill. 2d 344 (Ill. 1980) (explains specificity rule for posttrial motions and preservation requirements)
- McDonnell v. McPartlin, 192 Ill. 2d 505 (Ill. 2000) (errors on damages not grounds for reversal if jury finds no liability)
- Lawlor v. North Am. Corp. of Ill., 2012 IL 112530 (Ill. 2012) (standard for granting judgment n.o.v.)
- Johnson v. Armstrong, 2022 IL 127942 (Ill. 2022) (elements and use of res ipsa loquitur in medical malpractice)
- Maple v. Gustafson, 151 Ill. 2d 445 (Ill. 1992) (abuse of discretion standard for motions for new trial)