*1
arbitrary
frozen, it seems
eligible applicants
when the list
time
vacancy
the list when
freeze
potential
candidates to
and unfair
and, more
candidates
justice
potential
In order to do
is created.
qualified
of the most
pool
the widest
recruit from
importantly,
community, eligible candidates
the benefit of
candidates for
occurs,
vacancy
date a
beyond the
permitted
apply
should be
which,
indicated,
prospective applicants
may be when most
I have
availability
position.
learn of the
discussing
is
any
case
Finally, my research has not revealed
City
declaration, Hammer v.
Contrary
majority’s
to the
sue
bar.
Commissioners,
Ill.
& Police
Peoria Board
Fire
(1990),
majority’s position.
support
PEGGY S. v. DENNIS J. Defendant-Appellee.
Fifth District No. 5—96—0396 September Opinion 1997. filed *2 RARICK,J., dissenting. Levy, Levy, Levy P.C., Edwardsville, Stipes,
Mark appellant. & of for Ray Freeark, Dennis, Fierstos, Freeark, Ted W. and all of Anneliese Harvey, Mendillo, Wuller, P.C., Belleville, appellee. & Dennis for
JUSTICE CHAPMAN delivered the of the court: Peggy malpractice against Grant’s medical action Dr. Dennis performed ligation Petroff claimed that he a tubal without her alleged consent. complaint Grant’s second amended malprac- medical tice, distress, intentional infliction battery. emotional and Plaintiff’s motion for leave complaint, to file a third amended sought punitive to add seeking damages two additional counts for battery, intentional infliction of emotional distress and was denied the trial denying plaintiff court. We reverse the trial court’s decision complaint, leave file third amended and we for a new remand trial. Hardin,
Dr. Robert an anesthesiologist, for Dr. Petroff. testified appeal beyond The issue on is whether scope Dr. Hardin testified expertise and improperly as to whether Grant in fact question consented the sterilization. Because the of what crucial, necessary. Dr. Hardin testified review the record is relevant on direct is as follows: my attorney] ques- "Q. Freeark, And basic [by Mr. defendant’s knowledge and your tion, from you—can demonstrate do Peggy had—there Grant or of these records whether review procedures^] by Peggy Grant consent an informed ligation? including a tubal informed. my In she well Hardin]
A. [Dr. * * * Peggy is that Q. Now, parties court position of the day, and particular the tubal on has said she didn’t want she told him. the tubal because says that she did want Petroff says person one Now, puts you posture where one thing. you make thing says How do person the other another informed, as was information—or a decision to whether there totally informed consent? Well, have to examine point, have to—I would
the, pertinent evidence that’s available. Honor, again going attorney]: I am [plaintiff’s
MR. Your LEVY nothing taking object. place than him This is more it, jury, Peggy jury, saying I me as the think look at telling the lying and the Doctor is truth. anything not—nobody about
MR. That’s has said FREEARK: opinion. there’s a difference of that. What he said is Well, follows, gentle- THE COURT: the Court rules ladies jury. men of the here, question of
The ultimate *3 Grant, ligation procedure you, to is for ladies consented the tubal gentlemen, to and decide. Right.
MR. FREEARK: may ques- the THE COURT:This witness offer his on whether, sup- if in the record which tion of the matter contained true, that is ad- ports plaintiff’s position that oral consent was the question of equate may he that. the ultimate offer But consent^] are correct in fact she did so and whether those records you to is decide. * * * *** again that this Doctor’s [sic]
THE COURT: I reiterate by gentlemen jury, of the you, ladies and opinion is to be received you, gentlemen jury, only point if and on the that ladies fact, Petroff and Nurse find did tell Dr. finders of that the ligation, your be then if that wanted tubal Mueller that she you to But have finding, opinion, adequate in that is consent. his actually did so. of whether she make the factual determination * * * case, on Okay. your judgment, In based MR. FREEARK: training experience background, the documents your and and you case, including depositions, have reviewed in this valid, there informed consent in this case— Yes, there was.” During by counsel, plaintiff’s cross-examination following took place:
"Q. [by Levy] it, Doctor, Mr. If I you understand have testified upon your training, expertise background, based upon you based depositions, the medical records and the think gave her—gave an informed consent? A. Yes.
Q. Okay. Well, Doctor, jury * * is here to decide whether or not [*] Peggy gave testimony against and it’s her why I you qualified defendant’s. want to know are more than the jury to make that decision. you—you
Let me ask your training your said based on training expertise. What determine do have to whether or not Peggy telling the truth or the telling Doctor is the truth? *** going object your MR. I that, FREEARK: am to to Honor. *** that, suggested The Doctor never said never it. Honor,
MR. get go LEVY:Your I opinions. into the basis of his got training gives If he has capable him—that makes him judging truth, telling who is I like would to know what it is. Levy, THE COURT:Mr. I am point my afraid missed the rulings jury. earlier and admonitions to the This witness has not permit testify testified nor him telling did about who was expressed that, truth. He told which held the Doctor was and if Nurse Mueller was so told and the other his records in view do corroborate his view that she was [sic], then there was consent. Now, cross[-]examination, your you may withdraw those permitted submissions. But he at no time was substitute jury telling view for about who was the truth as to actually whether or not she did or did not inform the Doctor given. Nurse Mueller that consent was * * * Honor, just MR. LEVY: Your asked him whether or Peggy gave whether or not consent and he said yes, gave prior surgery. mean, she did. She I want to know—I supposed that’s what the basis. go to decide. I would like to into THE But COURT: that’s the bottom line—that’s not the *4 point question objection. or the objection which drew this you drawn when question training rely asked the on what did he opinion jury. to substitute his that of And that’s when Mr. objected objection.” Freeark and I have sustained that record, plaintiff’s as fol- Later, counsel court admonished off the lows: cautionary my instruc- I clear in tried to make
"[THE COURT:] during exam- jury Mr. Freeark’s direct from the bench to the tion permitted be to offer that the Doctor would ination point insofar as to one narrow way opinion was limited concerned, jury if finder and that was that as the consent pre-op consent to Dr. given had oral fact found that Mueller, met stan- that would have to Nurse then Petroff and I to make it obtaining And tried of care for oral consent. dard clear that he would did so expressing that she be ques- is an ultimate that was for the ultimate—that jury tion for the to decide. it
Now, repeated and I repeated I that two or three times cross[-examination], Levy, ap- it your far Mr. but so least once admonitions, you at- notwithstanding those are pears to me that though give did tempting to him as he cross[-]examine couldn’t, he not. which said and which did THE COURT: I don’t want to [*] * * get into personal exchanges be- gets right what I witnesses] tween counsel. This to decide, repeat to and I will it believe is the core issue for necessary and at the end of the trial if in written instruction again, opinions again while Doctor is on the stand but They go she so. do question the ultimate of whether did don’t to gave go actually to the ultimate of whether she consent. whether, opinion goes if it
His issue is assumed that gave pre-operatively, then she oral consent Petroff and Mueller goes.” that would have met the of care. That’s as far it standard parties courtroom, attorney Levy returned to the continued with cross-examination. Doctor, understanding
"Q. my [By Levy] Mr. it is now what way. me it this Isn’t true that you testified is that—or let ask only thing you testifying Peggy gave oral were to is that consent, you adequate? think that was Yes, adequate. I think that’s
Q. testifying Okay. And think she were not making—you asked to make You weren’t weren’t consent? point? a decision on that say thirty years experience with
A. would have to based patients, this would not forty over two hundred thousand orally.” her consent have been done if she had not asked, being the court attempt clarify In an what Dr. Hardin was stated: *5 you permit going
"THE COURT: If will me—I am ask explain a I question Doctor but want to here what his role is. Doctor, jury has heard evidence from the she give did not oral surgery, consent to Dr. Petroff before and that give surgery. she did not it to Mark Mueller before Petroff, known, so, it is maintains that she did and Nurse Mueller has testified that she did so. jury going to is have to decide in whether she fact did. opined questions that, You by have asked Mr. Freeark if she
did, that met the standard care. Levy you that, not, asking What Mr. is is if she is did then what *** regard the result with to the standard of care. Q. orally, MR If LEVY: she didn’t tell the Doctor if we assumed flip-side—*** orally and she didn’t tell the Doctor that she sterilized, wanted to be then did the Doctor break his standard of your opinion? care in that, yes.
A. If he had no consent to do Q. [by Mr. Levy] Okay. And ultimately, [*] i$< * on the issue of whether didn’t, know, you you, she did or don’t do Doctor?
A. You mean I an I opinion don’t have or don’t know or—I don’t quite that, understand either.
Q. actually Whether she did or didn’t isn’t a your matter of expertise, medical it? is Only insomuch as I have been in the involved care
patients long, many procedures, for so operative and for so having here, my reviewed all of opinion is that she did.
Q. your opinion But is jury’s, no different than the it? is they A. Not unless experience have no value in the I have had.”
During recross-examination, following occurred:
"Q. [by Levy] you deposition? Mr. Do disbelieve her gave A. I believe that If she consent. that means I disbelieve her deposition, guess deposition. disbelieve her
Q. ultimately, you saying you So what are believe one side and not the other?
A. Well— *** Object your, MR. FREEARK: to that Honor. objection
THE COURT: The Court sustains the for the reasons previously stated of with record counsel.” re-recross-examination, On following occurred: *** you witness, expert you "[MR. LEVY:] Do an believe that as telling
have read a evidence made decision which side is truth and which side isn’t? opinion an and formulated I have read evidence
A. I think that, yes. about telling the truth Q. to which side is Formulated isn’t? and which side issue, is, and that about the A. I think I have formed yes.” given. my opinion And was there consent testimony, the court stated: Dr. Hardin’s At the conclusion of the extent this instructed "THE COURT: The you purporting testify offer Doctor is consent, then are to disre- consider that the gard opinion. testimony only opinion and may consider this Doctor’s You from the evidence of- find on the issue of whether give oral by that she did fact fered the other witnesses care which met the standard of that then those consents guided.” to be Dr. Petroff was *6 of Dr. Petroff. returned a verdict favor a fair trial argues
On
Grant
that she was denied
appeal,
first
beyond
expertise
his area of
and invaded
because Dr. Hardin testified
jury.
maintains that Dr. Har-
province
Specifically,
Grant
consent,
gave preoperative
din
that
in fact
testified
Grant
merely
given,
had
have met the
that
such consent been
would
requisite standard of care. Grant further contends that
continued
trial court
objections
testimony
to this
were overruled because the
testimony.
nature
misunderstood the
of such
testimony
proffered expert
quali
if
Expert
is admissible
knowledge, skill, experience, training,
expert by
fied as an
or educa
understanding
of fact in
tion and the
will assist the trier
808,
Okan,
App.
the evidence. Dotto v.
269 Ill.
3d
***Q. How do to make decision as whether there was in- informed, totally formation—or informed consent? *** the, I would have examine pertinent to evidence that’s available.”
Dr. Hardin Peggy testified that if Grant did not tell Dr. Petroff prior surgery sterilized, that she be wanted to then Dr. Petroff Thus, case, violated the standard of care. there is no dispute, in this if Peggy preoperatively Grant did not orally the stan- argues dard of care right was violated. No one about Dr. Hardin’s opinion relate his on ap- what the standard of care on was. issue peal concerns defense counsel’s solicitation of Dr. Hardin’s actually orally prior surgery. consented The resolution of that issue is based Grant’s and the other wit- veracity. nesses’ plaintiffs
Prior to trial the court sustained motion in limine prohibiting testimony by indicating experts defense gave an trial, oral consent. At after defense counsel’s first elicitation plaintiffs Hardin’s on veracity, attorney objected, jury: court admonished the you, gentle- Doctor’s be is to received ladies and
"/TJhis jury, only point men of you, gentle- on the ladies and fact, jury, men of the as finders did tell find and Nurse ligation, Mueller that she wanted the tubal Petroff your finding, opinion, then if that be adequate consent. But have the factual to make determination *7 added.) actually (Emphasis whether she did so.” Later, during cross-examination, plaintiffs reprimanded the court attorney "missing point” rulings for the of the court’s earlier In plaintiffs admonitions. chambers the court continued to admonish attorney, indicating that the attorney Levy court believed it was lawyer not defendant’s encouraging testify who was the as witness to Peggy to pertinent whether Grant was believable. The court stated in part: opinion goes whether,
"His to the of it that she issue is assumed gave pre-operatively, oral consent to Petroff and Mueller then goes.” that would have met the of as far as it standard care. That’s attorney Levy This statement demonstrates that it was not who was of Hardin’s the nature that court misunderstood misguided, but the it not the doctor’s function testimony. trial stated that was The court believe, did that yet clearly just the doctor jury who to to advise the during his examination. several times the the testimony, the of Dr. Hardin’s court admonished
At close jury: purporting to extent this Doctor is jury is instructed to the
"The opinion that the testify and the to consider offer gave consent, disregard opinion.” to that then are Dr. had was concerned that Hardin point appears it court At credibility attempting cure Peggy and was Grant’s testified as always a Unfortunately, an is not sufficient error. admonition curing means error. in the admission of evidence
Generally speaking, for error
reversible,
substantially prejudicial,
testimony
must be
to be
it
Chicago Transit
thereby affecting
outcome
the trial. Skelton v.
(1991).
The trial
Authority,
App.
Ill.
3d
Notwithstanding plaintiff’s attorney was successful fact arguing pretrial point, his motion in limine on this and the objection plaintiffs the trial court sustained at outset testimony, on permitted testify Hardin’s Hardin three times Peggy veracity. repeatedly as court direct Grant’s trial give an admonished the that while Dr. Hardin could care, he preoperative oral met the standard of to whether consent had in fact been give could whether such consent disregarded. be any and that such should obtained case, at especially one court made in this the last admonitions testimony, presuppose that an error occurred. the close of Hardin’s Hardin had made Unfortunately, repeatedly this time Dr. record, we he did not believe Grant. Based on point Moreover, attorney we find Levy fault. cannot find and instructions were sufficient the trial court’s admonishments resulting prejudice. Because Hardin’s to cure the testimony that strong s provided support for Petroff and Mueller’s consent, we the errone- find that preoperative fact substantially affected outcome ous admission *8 reversed, judgment the trial trial. The court’s and this cause is remanded for a new trial. argument final appeal
Grant’s on is that the trial court erred denying her leave to file a complaint, including third amended V, sought punitive damages count which for willful and wanton bat tery. The court’s decision was based on section of the Code of 2—1115 Procedure, provides: Civil cases, tort, otherwise,
"In all or contract in which legal, medical, hospital, plaintiff by the or damages seeks reason healing punitive, other exemplary, art no malpractice, vindictive added.) aggravated damages (Emphasis shall be allowed.” (West 1994). ILCS 5/2—1115 Basically, the trial court malprac ruled the definition of encompasses alleged tice is broad and battery the here. Plaintiff argues battery plaintiffs independent allegation the stands malpractice and, thus, healing art does not violate section 2—1115 of (West 1994). Code Civil Procedure. 735 ILCS 5/2—1115 analysis begins determination Our with a of whether the claim is plaintiff damages one in which healing seeks reason of art claims, malpractice, simple as defendant or whether it is a case of battery, plaintiff plaintiff charged: as the claims. In count V September "3. That on or around the Plaintiff entered *** Surgical Outpatient Southwestern Illinois Center and employed
Plaintiff consulted and compensation Defendant for paid paid, provide proper gynecological to be and/or with *** surgical medical and care and treatment and to attend and perform surgical her, procedures namely!,] certain on hysteros- a copy, curettage, pelviscopy. dilation and and time,
4. accepted That said date and employ- Defendant consideration, ment a pursuant undertook, for certain to which he upon Plaintiff, gynecological entered surgical and rendered medical and treatment, namely!,] hysteroscopy,
care and dilation curettage, pelviscopy. ***, 5. That unbeknownst Plaintiff the Defendant also performed surgical procedure cautery of tubal and transec- tion. surgical
6. That the time of the medical and care and treat- above, ment rendered to the Plaintiff and described the Plaintiff performance surgical procedure had not authorized the cautery tubal and transection. Through performing surgical
7.
the acts of
the unauthorized
Plaintiff,
procedure
cautery
upon
of tubal
and transection
willfully
wantonly
Defendant
battered the Plaintiff.”
allegations,
It
apparent
from these
which are taken as true for
dismiss,
in the instant
purposes of the motion to
ligation
performed improperly.
alleging that the tubal
case is not
correctly is irrele-
ligation
performed the tubal
Whether Dr. Petroff
no
Petroff had
author-
alleges to count V because
vant
malpractice in
Plaintiff’s claim of
ity
perform
place.
it in the first
ligation
tubal
allegedly performing
Petroff
count
stems from
we
*9
utilizing
question
care. The
appropriate
the
standard of
without
is,
brought
'by reason of
claim in count V
plaintiff’s
must answer
"Is
”
healing
malpractice?’
art
(1995),
Smith,
a
As it seems the reason there was also the hesitancy count V for plaintiff’s is some over the issue claim under the alleged battery in this case is because contact occurred place hospital patient physician. in a a took between relationship change not nature of the physician-patient does leg underlying Peggy had cut off Grant’s action. What if Dr. Petroff deny we a bat- while she was under anesthesia? fact that Would committed during act an tery simply occurred because the doctor Peggy him to operation perform? Grant had contracted battery independently of the Grant’s claim the instant case arises allegations constituting alleged healing malpractice. a cause art battery touching. Just of action for stem from unconsented-to nonconsent separate malpractice has a claim where because independent battery for that an claim was issue does not mean precluded. should be
Therefore, of leave file the reverse the trial court’s denial we battery claim. re- foregoing, judgment of the circuit court is light
In versed, trial. this is remanded for new cause
Reversed and remanded.
WELCH, J., concurs. RARICK, dissenting:
JUSTICE respectfully dissent. accept majority’s cannot conclusion that admission prejudicial Dr. Hardin’s was so as to affect the outcome of the trial. what,
It exactly, is evident that there was some confusion as to testifying. that, Dr. Hardin was On direct examination he testified records, upon gave based his examination of the the consent Grant objected, however, believing informed. Plaintiff’s counsel being Hardin preoperative asked whether or not oral consent given, i.e., being been had whether Grant was truthful when she said she had preoperative consent. The trial attempted court clarify plaintiff’s for counsel and admonished jury, but on cross-examination Hardin plaintiff’s counsel asked Dr. expertise what he had to determine whether Grant or Dr. telling Petroff was objected, again truth. When defendant’s counsel the trial court tried clarify plaintiff’s exactly counsel what Dr. Hardin did and did Nevertheless, testify plaintiff’s ques- to. counsel asked several respect tions which elicited from Dr. Hardin an with veracity. testimony, Grant’s At the conclusion of Dr. Hardin’s again trial court only admonished the that his could be considered on the issue of whether an oral consent met the stan- care, dard of and to the an opinion extent that on whether or *10 consent, disregard jury not she testimony. was such Reviewing portions testimony, the relevant Dr. Hardin’s I plaintiff’s believe that it was counsel who misunderstood Dr. Har testimony, attempting din’s and in to cross-examine Dr. Hardin on thought said, plaintiff’s what Dr. Hardin Dr. counsel elicited from veracity. party Hardin comments on Grant’s a or When introduces evidence, complaint elicits he cannot later about its admission. Gillespie Chrysler 363, Corp., v. Motors 135 Ill. 2d 553 291 N.E.2d (1990). majority’s
I also take issue with the that position admonish- jury by ments to the the trial court were insufficient to cure trial prejudice. repeatedly jury The court admonished the give preoperative while Dr. Hardin could as to whether care, give met an opinion oral consent the standard of he could not obtained, any on whether such had in fact consent been disregarded. such should be The trial court’s admonishments thorough not have been more or clear. I find it could more inconceiv- jury ignored able that the misunderstood or them.
Finally, in view of the fact both Dr. Petroff and nurse Muel- gave preoperative ler in fact testified hardly Hardin’s was at best and sufficient to cumulative
807 Furthermore, that Grant’s the trial. note sway the outcome of appeal. record part is not respect disagree majority’s conclusion with I also with amended leave to file a third trial court’s denial of Grant’s motion for prevent Grant from ruling The did not complaint. trial court’s of emotional introducing allegation evidence on the infliction battery; seeking punitive from merely prevented distress or with damages jury re exemplary based thereon. instructed spect bat to both the infliction of emotional distress count Petroff, general verdict for Dr. tery jury count. returned general all mate presumption of a verdict creates a return upon were found in favor proof rial issues offered District, 952, prevailing Chicago App. Ill. 3d party. Boll v. Park Maintenance, (1991); Building ABA 620 N.E.2d Rendleman v. (1991). Inc., Because 222 Ill. N.E.2d 703 occurred, battery error have arisen prejudicial found that no no could file request from the trial court’s denial of Grant’s for leave to complaint. third amended reasons, foregoing
For the dissent. PRATT, WOODWARD, Plaintiff-Appellee, AND JAMES v. BRADFORD (Home TOBIN, P.C., Defendant-Appellee Company, Insurance Intervenor-Appellant).
Fifth District 5—96—0696 No.
Opinion September filed 1997.