Auten v. Franklin

SUPREME COURT CASES

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Auten v. Franklin

State: Illinois

Court: 4th District Appellate

Docket No: 4-09-0541 Rel

Case Date: 10/06/2010

Preview:NO. 4-09-0541 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Filed 10/6/10

DAWN AUTEN, f/k/a DAWN BARNETT, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County CHRISTINE FRANKLIN, ) No. 05L19 Defendant, ) and ) LARRY NORD and CENTRAL ILLINOIS ) Honorable ORTHOPEDIC SURGERY, S.C., ) John W. Belz, Defendants-Appellants. ) Judge Presiding. _________________________________________________________________ JUSTICE POPE delivered the opinion of the court: Defendants, Dr. Larry Nord and Central Illinois Orthopedic Surgery, S.C. (medical defendants), appeal from a jury verdict in favor of plaintiff, Dawn Auten, resulting from injuries plaintiff received from an automobile accident with defendant, Christine Franklin, and the medical treatment given by the medical defendants. Plaintiff's injuries included a right The

forearm fracture and a dislocated right index finger.

medical defendants contend (1) the trial court erred in giving jury instructions failing to differentiate between the injuries caused by Franklin and those caused by the medical defendants, injecting insurance into the case, and confusing the jury on the consideration to be given expert witness testimony; (2) the court erred in limiting or denying evidence qualified radiologists were not able to diagnose plaintiff's dislocated finger prior to the medical defendants' failure to do so; and (3) errors occurred in

both opening statement and closing argument denying the medical defendants a fair trial. Because the verdict form failed to

differentiate between the injury caused solely by Franklin to plaintiff's forearm and the injury caused to the index finger for which both Franklin and the medical defendants are liable, we reverse. I. BACKGROUND On December 11, 2003, a vehicle driven by Franklin collided with a vehicle driven by Timothy Auten in Springfield. Plaintiff was a passenger in Auten's vehicle. Plaintiff was

injured and taken to the emergency department of Memorial Medical Center (Memorial) in Springfield where she was seen by emergencyroom physician Dr. Ronald Pickett. Dr. Pickett diagnosed a two-bone fracture of plaintiff's right forearm. Dr. Roger Haag, a clinical radiologist,

was asked to read an X ray of the front and lateral views of the right forearm, verifying these fractures. He did so, finding

plaintiff had fractured the mid-portion of the right radius and ulna. He saw no other fractures in the X rays of the forearm. A

specific X ray of plaintiff's hand was not taken at Memorial. Plaintiff claimed she was in excruciating pain when her right arm was raised by holding on to her index finger in order to take the X rays. She reported she had braced for the impact

of the automobile accident using her right hand. - 2 -

Plaintiff was also seen at Memorial by orthopedic surgeon Dr. Michael Watson and orthopedic resident Dr. Joseph Norris. Dr. Watson gave plaintiff the choice of having her right

forearm fractures internally set by an orthopedic surgeon in Bloomington since she lived there. Plaintiff chose to do that

and saw Dr. Larry Nord, a surgeon employed by Central Illinois Orthopedic Surgery, S.C. 13, 2003. On January 15, 2005, plaintiff filed suit against Franklin, seeking to recover damages for injuries she suffered as a result of the automobile accident. On April 5, 2006, plaintiff Dr. Nord scheduled surgery for December

filed an amended complaint, adding as defendants Dr. Pickett, Midwest Emergency Department Specialists, Ltd., Dr. Norris, Memorial Medical Center, Dr. Haag, Clinical Radiologists, S.C., Dr. Nord, and Central Illinois Orthopedic Surgery, S.C. Plain-

tiff alleged the newly added defendants failed to diagnose a dislocated index finger. When the case proceeded to trial on

March 2, 2009, the remaining defendants were Franklin, Dr. Nord, and Central Illinois Orthopedic Surgery, S.C. Dr. Nord performed an open reduction internal fixation on December 13, 2003, and advised plaintiff she may not get a return of her radial nerve sensory function. He did not notice Following her

anything unusual about plaintiff's index finger.

surgery, Dr. William Cooley, a board-certified radiologist, - 3 -

reviewed postoperative X-ray film of plaintiff's right forearm and right hand to determine if the surgery had resulted in properly setting plaintiff's forearm bones. He reported it did.

Following the surgery, Dr. Nord saw plaintiff 13 times for follow-up care. He testified he palpated her hand, including Dr. Nord

her index finger, every time her cast was changed.

stated plaintiff had kind of chubby hands and swelling on top of that from the forearm fracture. It took six months for the

fractures to heal, and she had swelling in her hand the entire time. Dr. Nord testified he did not receive any specific complaint of pain in plaintiff's right index finger. Even after

she started hand, wrist, and elbow motion exercises, plaintiff did not make any complaints of pain in regard to her right index finger. There are no notations in Dr. Nord's medical records in

regard to plaintiff indicating she made any complaints of pain. Plaintiff insists she made complaints of hand and finger pain regularly to Dr. Nord and other employees of Central Illinois Orthopedic Surgery during the course of her treatment by them. On June 14, 2004, Stephanie Roberts, a licensed physical therapist employed by Neuro Ortho Rehab Center, an outpatient physical therapy clinic, saw plaintiff for a physical-therapy initial evaluation. Plaintiff had been referred by Dr. Nord. - 4 -

Plaintiff complained of an ache in the right wrist and fingers. She stated she had no feeling in the right fingers and had throbbing pain when she lay down. She also complained of pain in

the second metacarpal and finger and a bump at the second metacarpal (the index finger). Roberts palpated plaintiff's right index finger and discovered a "hard, bony-like protrusion *** at the distal first metacarpal." (Roberts acknowledged the injury was actually at

the second metacarpal and she erroneously charted it as the "first" metacarpal.) Roberts wrote in plaintiff's medical chart

the symptoms in regard to plaintiff's finger were the result of the automobile accident in December 2003. related to her by plaintiff. Plaintiff saw Roberts again on June 21, 2004, and at that time complained of moderate tenderness as a result of palpation at the second metacarpal. She was having increased This information was

pain as her splint was hurting the first and second metacarpal region and she requested to see Dr. Nord as soon as possible. On June 26, 2004, a sagittal view computerized tomography (CT) scan was performed of plaintiff's right index finger. finger. This scan disclosed the dislocation of her right index Dr. Nord had ordered this scan to look at the radius in

her forearm three-dimensionally to determine why that fracture was not healing and to get a three-dimensional look at the - 5 -

metacarpal phalangeal joint around her right index finger to see what was the exact condition and alignment of the bone structure. Dr. Nord was "shocked" to find a dislocation after the CT scan and then performed surgery on plaintiff's finger on June 29, 2004. A second procedure was performed on July 19, 2004, and

then plaintiff was referred by Dr. Nord to a hand specialist, Dr. Frank Lee. On July 22, 2004, Dr. Lee saw plaintiff. He noted

plaintiff had dislocated the bones making up the knuckle of her right index finger. Dr. Lee had her continue with therapy. He

continued to see plaintiff and eventually performed surgery on her finger October 19, 2004. Dr. Lee continued to prescribe

vigorous therapy but eventually performed fusion surgery on January 6, 2005. He considered the fusion a success but only saw Dr. Lee testified if there is

plaintiff for one follow-up visit.

more than one injury, the pain of a dislocation may be overwhelmed by the pain of the other injury. On August 3, 2006, plaintiff sought treatment from Dr. Mitchell Rotman, an orthopedic surgeon specializing in elbows, shoulders, and hands. Dr. Rotman operated on plaintiff and

scraped out scar tissue and removed wires which were inserted at the time of the fusion in order for plaintiff to regain more range of motion. Plaintiff testified after this surgery she not

only regained motion but the pain decreased also. - 6 -

Dr. Rotman testified, as plaintiff's medical expert witness, it was a breach of the standard of care for a reasonably well-qualified orthopedic surgeon to miss the warning signs of the finger injury which were presented. The X rays taken and

reviewed by Dr. Nord himself were diagnostic of plaintiff's right index finger dislocation. It was also Dr. Rotman's opinion, as

it was all the other doctors who were asked, including Dr. Nord, a patient with a dislocated finger as plaintiff had would have been in extreme pain and would have been expected to complain about it to her physician. Rotman did concede plaintiff's finger

dislocation was an unusual presentation but was adamant it could have been discovered earlier and, thus, would not have involved the degree of damage presented by torn and stretched ligaments and tendons encountered by the late diagnosis and treatment in this case. Dr. Mark Cohen, an orthopedic surgeon specializing in the hand, wrist, forearm, and elbow, testified as the medical defendants' medical expert witness. Dr. Cohen reviewed the X-ray

films taken at Memorial and did not find those films to be diagnostic of a dislocation of the index finger. Nor did he find

anything diagnostic of a dislocation in the films taken after plaintiff's forearm surgery. Dr. Cohen also reviewed the films

taken by Dr. Nord in his office on February 10, 2004, and March 9, 2004, post-operation and found those did not show anything - 7 -

diagnostic of a dislocation either.

The problem with all of the

X rays taken was they focused on the forearm fracture area and the finger was shown at an angle, making it difficult to see exactly what was going on with the finger. Dr. Cohen did concede the X rays showed a "pathology" in regard to plaintiff's right index finger. He also acknowl-

edged five separate complaints of either hand or finger pain by plaintiff in the first few days of her initial hospitalization. Dr. Cooley, the Bloomington radiologist, testified he reviewed the December 13, 2003, X-ray film after plaintiff's initial surgery with Dr. Nord and reported it showed an open reduction of fractures of both the radius and ulna. He testified

at trial the film also depicted a medial dislocation of the phalanx on the metacarpal joint of the right index finger. He

also reviewed the results of the CT scan taken on June 26, 2004, and testified it showed the proximal phalanx of the same finger was displaced posteriorly on the metacarpal. Dr. Cooley stated Dr.

this was the same dislocation fracture in both studies.

Cooley then admitted the X-ray report he authored in regard to the December 13, 2003, X ray made no mention of the fracture dislocation of plaintiff's right index finger because he did not visualize the fracture dislocation at that time. According to Dr. Cooley, it is easier for a radiologist to find a fracture dislocation on an X ray once he is told of its - 8 -

existence.

The first time he detected the fracture dislocation

of plaintiff's finger was after he was told there was a lawsuit involving the finger. Dr. Cooley also stated the training a

radiologist receives in interpreting X rays is greater than that of an orthopedic surgeon. The jury returned a verdict in favor of plaintiff and against defendants Franklin, Dr. Nord, and Central Illinois Orthopedic Surgery in the total amount of $307,000. Plaintiff

was awarded $107,000 for the reasonable expense of necessary medical care; $25,000 for disfigurement; $75,000 for pain and suffering, including future pain and suffering; and $100,000 for disability, including future disability. The jury found Franklin

to be 75% at fault and the medical defendants to be 25% at fault. After receiving an extension of time to file, the medical defendants filed a posttrial motion on May 19, 2009. of the issues raised on appeal were raised in that motion. June 26, 2009, the trial court denied the motion. followed. Franklin did not appeal. II. ANALYSIS A. Jury Instructions The medical defendants argue the trial court erred in giving jury instructions (1) which failed to differentiate between the injury caused solely by Franklin to plaintiff's forearm and the injury caused to the index finger for which both - 9 On All

This appeal

Franklin and the medical defendants are liable, (2) injected insurance into the case, and (3) confused the jury on the consideration to be given expert witness testimony. It is within the discretion of the trial court to determine what jury instructions should be given, and a reviewing court will not disturb the decision of the trial court unless it abuses its discretion. Brady v. McNamara, 311 Ill. App. 3d 542, "[T]he trial court has the

546, 724 N.E.2d 949, 952 (2000).

discretion to determine if a particular jury instruction is applicable, supported by evidence in the record, and an accurate statement of the law." Luye v. Schopper, 348 Ill. App. 3d 767, The standard for deciding

773, 809 N.E.2d 156, 161 (2004).

whether a trial court abused its discretion and the propriety of tendered instructions is "whether the jury was fairly, fully and comprehensively informed on the relevant principles, considering the instructions in their entirety." Saunders v. Schultz, 20

Ill. 2d 301, 314, 170 N.E.2d 163, 170 (1960); Matarese v. Buka, 386 Ill. App. 3d 176, 179, 897 N.E.2d 893, 896 (2008). A trial court is required to use an Illinois Pattern Jury Instruction when it is applicable to a civil case unless the court determines it does not accurately state the law. 177 Ill.

2d R. 239(a); York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d 147, 204, 854 N.E.2d 635, 666 (2006). The

issue of whether a jury instruction is an accurate statement of - 10 -

the law is reviewed de novo.

Studt v. Sherman Health Systems,

387 Ill. App. 3d 401, 403, 900 N.E.2d 1212, 1214 (2008). 1. Failure To Differentiate Between the Injuries Plaintiff did not seek damages for her right forearm fracture against the medical defendants, only against Franklin. Damages were sought from all three for the injury to her right index finger. Yet the verdict form given did not require the

jury to make a separate calculation for the damages attributed to plaintiff's right forearm fracture and her dislocated right index finger. The medical defendants contend this is error. Plaintiff and the medical defendants each offered a different verdict form. The medical defendants objected to the

use of plaintiff's proffered instruction and submitted one of their own which, upon plaintiff's objection, was refused by the trial court. Plaintiff's instruction was given.

Plaintiff's instruction No. 9 (Verdict Form A) was Illinois Pattern Jury Instructions, Civil, No. B45.03.A (Supp. 2008) (hereinafter IPI Civil (Supp. 2008) No. B45.03.A). It

stated jurors were to find for plaintiff and against either Franklin or the medical defendants, or both. at the end of this opinion.) (A copy is appended

Plaintiff's instruction No. 9

provided a blank for determining the total monetary amount of damages suffered by plaintiff as a proximate result of the occurrence. Then blanks were provided for the itemization of - 11 -

damages: medical expenses, pain and suffering, disability, and disfigurement. Finally, the jury was to assume 100% represented

the total combined fault of all persons or entities whose fault proximately caused plaintiff's injuries, including any defendant found liable, and find the fault attributable to each. The jury

was also informed if any defendant was found not liable to plaintiff, zero (0) should be entered as to the percentage for that defendant. The medical defendants argue using plaintiff's instruction No. 9 was error. Although Franklin, as defendant driver, is

responsible for all injuries arising as a result of the auto accident, the medical defendants are not responsible for any injury related solely to the auto accident and unrelated to the medical care provided. This would exclude any damages for

treatment provided for plaintiff's right forearm fracture as plaintiff neither alleged nor proved any negligence in regard to that treatment. Thus, the medical defendants offered their jury instruction No. 29A, which followed the same general format as IPI Civil (Supp. 2008) No. B45.03.A offered by plaintiff but separated the findings, requiring the jury to find liability and damages as to plaintiff's right forearm injury just as to defendant Franklin and as to her right index finger injury as to defendant Franklin and the medical defendants. - 12 (A copy is

appended at the end of this opinion.)

The medical defendants'

instruction No. 29A included the itemization of damages found in plaintiff's instruction No. 9 but provided two separate itemizations, one for plaintiff's right forearm and one for her right index finger. This instruction was refused by the trial court

after plaintiff objected to it. The medical defendants argued plaintiff suffered two distinct injuries, one to her forearm and one to her index finger. Plaintiff basically conceded this point at oral argu-

ment, and her complaint only sought damages from Dr. Nord for the injury to her index finger. According to the medical defendants,

the jury could find the medical defendants negligent for failure to diagnose plaintiff's dislocated finger, but they should not have been allowed to assess liability for the fractures to the right forearm caused by Franklin. No claim was made through

testimony or other evidence against the medical defendants for treatment of the right forearm fracture; thus, no basis existed for asking the jury to award damages against them for those injuries. However, the verdict form offered by plaintiff did not Both plaintiff and Franklin objected to the

separate the claims.

medical defendants' proffered verdict form, saying it was confusing and the percentages of liability offered in plaintiff's proffered verdict form were sufficient. The trial court rejected

defendants' instruction without giving a specific reason. - 13 -

At oral argument, plaintiff's counsel argued a verdict form giving the jury the opportunity to assess separate damages for each injury would be too confusing and would require the jury to sort through the medical bills and attribute them accordingly. However, Franklin's counsel had no problem doing that. At trial,

he argued the medical expenses attributable to the injuries were as follows: arm, $42,100; finger, $65,688; and overlapping arm and finger, $5,903. Indeed, plaintiff's own exhibit F, appended

to her brief, also depicts a division of the medical bills according to the injury to the forearm, the injury to the finger, and the overlapping expenses. Consequently, we find it would not

be impossible or overly confusing for the jury to be required to determine an amount of damages attributable solely to the forearm fracture, for which the medical defendants would have no liability whatsoever. The medical defendants argue the use of plaintiff's instruction No. 9 under the facts of this case is contrary to Illinois law. We agree. It is a well-established principle in

Illinois law, where a plaintiff's injuries are separable, defendants are not jointly and severally liable for the damages. Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 802, 909 N.E.2d 353, 360 (2009). In Patton v. Carbondale Clinic, S.C., 161 Ill.

2d 357, 370, 641 N.E.2d 427, 435 (1994), the defendants were not joint tortfeasors where the plaintiff suffered two distinct - 14 -

injuries: the first injury suffered in an automobile accident and the second suffered from the doctor's malpractice in treating her injuries. The injuries were found to be separate and distinct. In

Carbondale Clinic, 161 Ill. 2d at 374, 641 N.E.2d at 431.

Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 43738, 593 N.E.2d 522, 525 (1992), our supreme court held where a plaintiff's injury can be distinguished from a physician's aggravation of the injury, separate and distinct injuries occur and defendants cannot be held jointly liable. However, "where

defendants, albeit sharing no common purpose or duty, and failing to act in concert, nevertheless acted concurrently to produce an indivisible injury to the plaintiff," the defendants are joint tortfeasors. (Emphasis in original.) Burke, 148 Ill. 2d at 438,

593 N.E.2d at 526.

In Burke, the plaintiff was injured by the

first tortfeasor, and that injury was exacerbated and/or plaintiff received an additional injury from a second tortfeasor. Burke, 148 Ill. 2d at 439, 593 N.E.2d at 526. Either injury or

both injuries could have caused plaintiff's permanent condition. Because the injury was indivisible, the defendants were joint tortfeasors. Burke, 148 Ill. 2d at 439, 593 N.E.2d at 526.

Plaintiff states in her brief "[h]ere, plaintiff's finger injury was a single, indivisible injury. The existence of

a single, individual [sic] injury establishes that multiple defendants are jointly and severally liable." - 15 (Emphasis added.)

The problem with plaintiff's second sentence is it does not end with the following phrase "for plaintiff's finger injury." other words, because plaintiff suffered injuries which are indivisible as to her index finger, both Franklin and the medical defendants are liable for this injury. However, there was no In

dispute only Franklin is responsible for the fractured forearm, and the medical defendants could not be made to pay for damages resulting from the forearm injury. Plaintiff notes our supreme court, in Burke, adopted the test of jointness in section 433A of the Restatement (Second) of Torts. The court stated "[t]he test of jointness is indivisiBurke, 148 Ill. 2d at 438, 593 N.E.2d at

bility of the injury." 526.

Restatement (Second) of Torts

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