Tirado v. Slavin, 2019 IL App (1st) 181705

Background

In June 2011 Dr. Slavin removed a cyst from Gina Gutierrez’s lower spine; she was discharged June 23 with postoperative headaches but readmitted in early July with positional headaches and a diagnosed CSF leak.
On July 6–8 Gutierrez’s condition worsened: imaging showed spinal CSF collection and, later, progressive brain swelling and cerebellar tonsil herniation; efforts including a blood patch, antibiotics, and later a craniectomy followed, but she suffered catastrophic neurologic injury and permanent disability.
Plaintiffs sued for medical malpractice; experts disagreed about (1) whether Slavin met the standard of care at discharge and thereafter and (2) whether earlier/other treatments (mannitol, hypertonic saline, or earlier surgery) were required after the 4:43 p.m. CT on July 8.
At trial a juror became ill during plaintiffs’ closing; defense counsel (a nurse) and Dr. Slavin went to the jury room to assist; the juror recovered, was replaced by an alternate, and deliberations were delayed until the next day.
Plaintiffs moved for a mistrial the morning after the incident; the trial court denied the motion, and the jury later returned a verdict for Dr. Slavin. Plaintiffs appealed, raising multiple grounds including mistrial, ex parte communications, Rule 213 discovery objections to expert testimony, in limine violations, instruction error, and denial of partial summary judgment on contributory negligence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defense assistance to an ill juror during closing required a mistrial	Assistance (and Dr. Slavin’s presence in jury room) was extraordinary and prejudicial; mistrial required	Incident was brief, not inflammatory; no evidence of prejudice; trial court observed demeanor	Denial of mistrial affirmed — no abuse of discretion absent actual prejudice (Campbell distinguished)
Whether ex parte communications occurred in jury room warrant new trial	Unknown communications while juror was attended in jury room require new trial	No record of communications; appellant failed to develop record or brief the issue	Portion of appellant’s argument struck for inadequate briefing; appellate review denied on this point
Whether defense violated in limine order by sympathic remarks in closing	Remarks violated in limine and prejudiced jury	Any objection was waived because plaintiffs failed to obtain a ruling or renew objection	Waived — plaintiff failed to secure ruling at trial, so issue forfeited on appeal
Whether trial court improperly sustained Rule 213 objections to Dr. Erickson about chronology of post‑4:43 p.m. treatment	Erickson’s chronology was disclosed and necessary to show deviation from standard of care	Chronology was not disclosed in Rule 213 responses and would be an undisclosed new basis	Affirmed — court properly excluded undisclosed chronological opinion under Rule 213
Whether modified jury instruction (combining timely meds and surgery) misled the jury	Combining two distinct deviations (timing of meds vs surgery) misled jurors	Instruction tracked evidence and plaintiff’s own proposed language; modification acceptable	Affirmed — instruction fairly presented issues and was supported by evidence
Whether trial court erred denying partial summary judgment on contributory negligence	Refusal-to-treat/comparative-fault should have been decided as a matter of law	Disputed facts about causation and refusal of treatment preclude summary judgment	Argument forfeited for inadequate appellate presentation; in any event, refusal-of-treatment is fact question for jury per Newell/Corlett

Key Cases Cited

Campbell v. Fox, 113 Ill. 2d 354 (1986) (supreme court reversed and ordered new trial where defendant physician rendered aid to a juror and the occurrence so plainly affected juror evaluation of credibility)
Bauer v. Timucci, 33 Ill. App. 3d 1051 (1975) (failure to timely move for mistrial waives the issue for appellate review)
Williams v. Staples, 208 Ill. 2d 480 (2004) (questions of law are reviewed de novo; contrasted here to discretionary mistrial rulings)
Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1999) (Rule 213 requires disclosure of expert opinions and bases; strict compliance and bright‑line application)
Newell v. Corres, 125 Ill. App. 3d 1087 (1984) (refusal of treatment is a jury question relevant to comparative negligence and causation)
Corlett v. Caserta, 204 Ill. App. 3d 403 (1990) (same: refusal of treatment may not be resolved as a matter of law on summary judgment)
Colls v. City of Chicago, 212 Ill. App. 3d 904 (1991) (trial court’s denial of mistrial reviewed for abuse of discretion)