Grant v. Petroff
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0396
Case Date: 09/08/1997
NO. 5-96-0396
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
PEGGY S. GRANT, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Madison County.
)
v. ) No. 91-L-950
)
DENNIS J. PETROFF, M.D., ) Honorable
) P. J. O'Neill,
Defendant-Appellee. ) Judge, presiding.
_________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
Peggy Grant's medical malpractice action against Dr. Dennis
Petroff claimed that he performed a tubal ligation without her
consent. Grant's second amended complaint alleged medical
malpractice, intentional infliction of emotional distress, and
battery. Plaintiff's motion for leave to file a third amended
complaint, which sought to add two additional counts seeking
punitive damages for intentional infliction of emotional distress
and battery, was denied by the trial court. We reverse the trial
court's decision denying plaintiff leave to file her third amended
complaint, and we remand for a new trial.
Nonpublishable material under Supreme Court Rule 23 omitted.
Dr. Robert Hardin, an anesthesiologist, testified for Dr.
Petroff. The issue on appeal is whether Dr. Hardin testified
beyond the scope of his expertise and improperly gave an opinion as
to whether Grant in fact consented to the sterilization. Because
the question of what Dr. Hardin testified to is crucial, a review
of the record is necessary. The relevant testimony on direct is as
follows:
"Q. [by Mr. Freeark, defendant's attorney] And my basic
question, do you--can you demonstrate from your knowledge and
review of these records whether or not Peggy Grant had--there
was an informed consent by Peggy Grant for the procedures[,]
including a tubal ligation?
A. [Dr. Hardin] In my opinion she was well informed.
* * *
Q. Now, the position of the parties in court is that
Peggy Grant has said she didn't want the tubal on that
particular day, and Dr. Petroff says that she did want the
tubal because she told him. Now, that puts you in the posture
where one person says one thing and the other person says
another thing. How do you make a decision as to whether there
was information--or informed, totally informed consent?
A. Well, at that point, you have to--I would have to
examine the, the pertinent evidence that's available.
MR. LEVY [plaintiff's attorney]: Your Honor, again I am
going to object. This is nothing more than him taking the
place of the jury, saying I look at it, and me as the jury, I
think that Peggy is lying and the Doctor is telling the truth.
MR. FREEARK: That's not--nobody has said anything about
that. What he said is there's a difference of opinion.
THE COURT: Well, the Court rules as follows, ladies and
gentlemen of the jury.
The ultimate question of whether or not the
plaintiff here, Peggy Grant, consented to the tubal ligation
procedure is for you, ladies and gentlemen, to decide.
MR. FREEARK: Right.
THE COURT: This witness may offer his testimony on the
question of whether, if the matter contained in the record
which supports the plaintiff's position that oral consent was
true, that is adequate consent[;] he may offer that. But the
ultimate question of whether in fact she did so and whether
those records are correct is for you to decide.
* * *
THE COURT: *** I again reiterate [sic] that this
Doctor's opinion is to be received by you, ladies and
gentlemen of the jury, only on the point that if you, ladies
and gentlemen of the jury, as finders of fact, find that the
plaintiff did tell Dr. Petroff and Nurse Mueller that she
wanted the tubal ligation, then if that be your finding, in
his opinion, that is adequate consent. But you have to make
the factual determination of whether she actually did so.
* * *
MR. FREEARK: Okay. In your judgment, in this case,
based on your training and experience and background, the
documents which you have reviewed in this case, including the
depositions, was there a valid, informed consent in this
case--
A. Yes, there was."
During cross-examination by plaintiff's counsel, the following took
place:
"Q. [by Mr. Levy] If I understand it, Doctor, you have
testified that based upon your training, expertise and
background, and based upon the medical records and the
depositions, you think that Peggy Grant gave her--gave an
informed consent?
A. Yes.
* * *
Q. Okay. Well, Doctor, the jury is here to decide
whether or not Peggy gave that consent, and it's her testimony
against the defendant's. I want to know why you are more
qualified than the jury to make that decision.
Let me ask you--you said based on your training and
your expertise. What training do you have to determine
whether or not Peggy is telling the truth or the Doctor is
telling the truth?
MR. FREEARK: I am going to object to that, your Honor.
*** The Doctor never said that, never suggested it. ***
MR. LEVY: Your Honor, I get to go into the basis of his
opinions. If he has got training that gives him--that makes
him capable of judging who is telling the truth, I would like
to know what it is.
THE COURT: Mr. Levy, I am afraid you missed the point of
my earlier rulings and admonitions to the jury. This witness
has not testified nor did I permit him to testify about who
was telling the truth. He expressed an opinion which held
that, if the Doctor was told by the plaintiff and if Nurse
Mueller was so told and the other records in his view do
corroborate in his view that she was given [sic], then there
was consent.
Now, on your cross[-]examination, you may withdraw
those submissions. But he at no time was permitted to
substitute his view for that of the jury about who was telling
the truth as to whether or not she did or did not actually
inform the Doctor or Nurse Mueller that consent was given.
* * *
MR. LEVY: Your Honor, I just asked him whether or not he
gave an opinion whether or not Peggy gave consent and he said
yes, she did. She gave it prior to surgery. I want to know--
I mean, that's what the jury is supposed to decide. I would
like to go into the basis.
THE COURT: But that's not the bottom line--that's not
the point or the question which drew this objection. The
objection was drawn when you asked the question on what
training did he rely to substitute his opinion for that of the
jury. And that's when Mr. Freeark objected and I have
sustained that objection.
Later, off the record, the court admonished plaintiff's counsel as
follows:
"[THE COURT:] I tried to make clear in my
cautionary instruction from the bench to the jury during Mr.
Freeark's direct examination that the Doctor would be
permitted to offer testimony by way of opinion which was
limited to one narrow point insofar as the consent was
concerned, and that was that if the jury as finder of fact
found that plaintiff had given oral pre-op consent to Dr.
Petroff and to Nurse Mueller, then that would have met the
standard of care for obtaining oral consent. And I tried to
make it clear that he would not be expressing an opinion that
she did so consent, that that was for the ultimate--that is an
ultimate question for the jury to decide.
Now, I repeated that two or three times and I
repeated it at least once so far in your cross[-examination],
Mr. Levy, but it appears to me that notwithstanding those
admonitions, you are attempting to cross[-]examine him as
though he did give the opinion which I said he couldn't, and
which he did not.
* * *
THE COURT: I don't want to get into personal exchanges
between counsel. This witness'[s] testimony gets right to
what I believe is the core issue for the jury to decide, and
I will repeat it in a written instruction at the end of the
trial if necessary and again while this Doctor is on the stand
again, but his opinions don't go to the ultimate question of
whether she did so. They do not go to the ultimate opinion of
whether she actually gave consent.
His opinion goes to the issue of whether, if it is
assumed that she gave oral consent to Petroff and Mueller pre-
operatively, then that would have met the standard of care.
That's as far as it goes."
The parties returned to the courtroom, and attorney Levy continued
with cross-examination.
"Q. [By Mr. Levy] Doctor, it is now my understanding
that what you testified to is that--or let me ask it this way.
Isn't it true that the only thing you were testifying to is
that if Peggy gave her oral consent, you think that was
adequate?
A. Yes, I think that's adequate.
Q. Okay. And you were not testifying that you think she
gave the oral consent? You weren't making--you weren't asked
to make a decision on that point?
A. I would have to say based on thirty years of
experience with over two hundred and forty thousand patients,
that this would not have been done if she had not given her
consent orally."
In an attempt to clarify what Dr. Hardin was being asked, the court
stated:
"THE COURT: If you will permit me--I am not going to ask
the Doctor a question but I want to explain here what his role
is.
Doctor, this jury has heard evidence from the
plaintiff that she did not give oral consent to Dr. Petroff
before surgery, and that she did not give it to Mark Mueller
before surgery.
Dr. Petroff, it is known, maintains that she did so,
and Nurse Mueller has testified that she did so.
The jury is going to have to decide whether she in
fact did.
You have opined in questions asked by Mr. Freeark
that, if she did, that met the standard of care.
What Mr. Levy is asking you is that, if she did not,
then what is the result with regard to the standard of care.
***
MR LEVY: Q. If she didn't tell the Doctor orally, if we
assumed the flip-side-- *** and she didn't orally tell the
Doctor that she wanted to be sterilized, then did the Doctor
break his standard of care in your opinion?
A. If he had no consent to do that, yes.
* * *
Q. [by Mr. Levy] Okay. And ultimately, on the issue of
whether she did or didn't, you don't know, do you, Doctor?
A. You mean I don't have an opinion or I don't know
or--I don't quite understand that, either.
Q. Whether she actually did or didn't isn't a matter of
your medical expertise, is it?
A. Only insomuch as that I have been involved in the
care of patients for so long, and for so many operative
procedures, and having reviewed all of the testimony here, my
opinion is that she did.
Q. But your opinion is no different than the jury's, is
it?
A. Not unless they have no value in the experience that
I have had."
During recross-examination, the following occurred:
Q. [by Mr. Levy] Do you disbelieve her deposition?
A. I believe that she gave consent. If that means I
disbelieve her deposition, I guess I disbelieve her
deposition.
Q. So ultimately, what you are saying is you believe one
side and not the other?
A. Well--
MR. FREEARK: Object to that your, Honor. ***
THE COURT: The Court sustains the objection for the
reasons previously stated of record with counsel."
On re-recross-examination, the following occurred:
"[MR. LEVY:] *** Do you believe that as an expert
witness, you have read evidence and made a decision which side
is telling the truth and which side isn't?
A. I think I have read the evidence and formulated an
opinion about that, yes.
Q. Formulated an opinion as to which side is telling the
truth and which side isn't?
A. I think I have formed an opinion about the issue, and
that is, was there consent given. And my opinion was yes."
At the conclusion of Dr. Hardin's testimony, the court stated:
"THE COURT: The jury is instructed that to the extent
this Doctor is purporting to testify and offer the opinion for
you to consider that the plaintiff gave a consent, then you
are to disregard that opinion.
You may consider this Doctor's opinion and his
testimony only on the issue of whether or not if you find from
the evidence offered by the other witnesses that she did in
fact give oral consent, that then those oral consents met the
standard of care by which Dr. Petroff was to be guided."
The jury returned a verdict in favor of Dr. Petroff.
On appeal, Grant argues first that she was denied a fair trial
because Dr. Hardin testified beyond his area of expertise and
invaded the province of the jury. Specifically, Grant maintains
that Dr. Hardin testified that Grant in fact gave preoperative oral
consent, not merely that had such consent been given, it would have
met the requisite standard of care. Grant further contends that
her continued objections to this testimony were overruled because
the trial court misunderstood the nature of such testimony.
Expert testimony is admissible if the proffered expert is
qualified as an expert by knowledge, skill, experience, training,
or education and the testimony will assist the trier of fact in
understanding the evidence. Dotto v. Okan, 269 Ill. App. 3d 808,
646 N.E.2d 1277 (1995). The decision whether to admit expert
testimony rests with the sound discretion of the trial court.
Decker v. Domino's Pizza, Inc., 268 Ill. App. 3d 521, 644 N.E.2d
515 (1994).
Although Dr. Hardin was clearly qualified to express an
opinion on whether oral consent, if given, was sufficient to meet
the applicable standard of care, he possessed no special knowledge,
skill, experience, training, or education which would have
qualified him to express an opinion on Grant's veracity. Questions
of credibility are to be resolved by the trier of fact. People v.
Kokoraleis, 132 Ill. 2d 235, 264, 547 N.E.2d 202, 216 (1989).
Determinations of credibility are the province of the trier of
fact. In re Marriage of Marshall, 278 Ill. App. 3d 1071, 1078-79,
663 N.E.2d 1113, 1119 (1996).
Reviewing Dr. Hardin's testimony, it is evident that his
testimony crossed the boundary of admissible expert testimony. On
direct, Hardin was not simply asked to base his opinion on the
assumption that Grant had given preoperative oral consent. Defense
counsel specifically elicited responses regarding Grant's veracity:
"Q. *** [C]an you demonstrate from your knowledge and
review of these records whether or not Peggy Grant had--there
was an informed consent by Peggy Grant ***?
A. In my opinion she was well informed.
* * *
Q. *** How do you make a decision as to whether there
was information--or informed, totally informed consent?
A. *** I would have to examine the, the pertinent
evidence that's available."
Dr. Hardin testified that if Peggy Grant did not tell Dr.
Petroff prior to surgery that she wanted to be sterilized, then Dr.
Petroff violated the standard of care. Thus, there is no dispute,
in this case, that if Peggy Grant did not preoperatively orally
consent, the standard of care was violated. No one argues about
Dr. Hardin's right to relate his opinion on what the standard of
care was. The issue on appeal concerns defense counsel's
solicitation of Dr. Hardin's opinion as to whether Peggy Grant
actually orally consented prior to surgery. The resolution of that
issue is based on Grant's and the other witnesses' veracity.
Prior to trial the court sustained plaintiff's motion in
limine prohibiting testimony by defense experts indicating that
plaintiff gave an oral consent. At trial, after defense counsel's
first elicitation of Hardin's opinion on veracity, plaintiff's
attorney objected, and the court admonished the jury:
"[T]his Doctor's opinion is to be received by you, ladies and
gentlemen of the jury, only on the point that if you, ladies
and gentlemen of the jury, as finders of fact, find that the
plaintiff did tell Dr. Petroff and Nurse Mueller that she
wanted the tubal ligation, then if that be your finding, in
his opinion, that is adequate consent. But you have to make
the factual determination of whether she actually did so."
(Emphasis added.)
Later, during cross-examination, the court reprimanded
plaintiff's attorney for "missing the point" of the court's earlier
rulings and admonitions. In chambers the court continued to
admonish plaintiff's attorney, indicating that the court believed
it was attorney Levy and not defendant's lawyer who was encouraging
the witness to testify as to whether Peggy Grant was believable.
The court stated in pertinent part:
"His opinion goes to the issue of whether, if it is assumed
that she gave oral consent to Petroff and Mueller pre-
operatively, then that would have met the standard of care.
That's as far as it goes."
This statement demonstrates that it was not attorney Levy who was
misguided, but that the court misunderstood the nature of Hardin's
testimony. The trial court stated that it was not the doctor's
function to advise the jury who to believe, yet clearly the doctor
did just that several times during his examination.
At the close of Dr. Hardin's testimony, the court admonished
the jury:
"The jury is instructed to the extent this Doctor is
purporting to testify and offer the opinion for you to
consider that the plaintiff gave a consent, then you are to
disregard that opinion."
At this point it appears the court was concerned that Dr. Hardin
had testified as to Peggy Grant's credibility and was attempting to
cure the error. Unfortunately, an admonition is not always a
sufficient means of curing error.
Generally speaking, for error in the admission of evidence or
testimony to be reversible, it must be substantially prejudicial,
thereby affecting the outcome of the trial. Skelton v. Chicago
Transit Authority, 214 Ill. App. 3d 554, 573 N.E.2d 1315 (1991).
The trial court's instruction to disregard certain evidence can
cure prejudice resulting from the jury's exposure to that evidence.
Kim v. Evanston Hospital, 240 Ill. App. 3d 881, 608 N.E.2d 371
(1992). The defense argues that it was attorney Levy who elicited
from Dr. Hardin an opinion on whether Grant was being truthful.
Defendant contends that because Levy induced the error, Grant
cannot now complain that she was prejudiced by it.
Notwithstanding the fact that plaintiff's attorney was
successful in arguing his pretrial motion in limine on this point,
and the fact that the trial court sustained plaintiff's objection
at the outset of Hardin's testimony, Hardin was permitted to
testify three times on direct as to Peggy Grant's veracity. The
trial court repeatedly admonished the jury that while Dr. Hardin
could give an opinion as to whether preoperative oral consent met
the standard of care, he could not give an opinion on whether such
consent had in fact been obtained and that any such opinion should
be disregarded. The admonitions in this case, especially the last
one the court made at the close of Hardin's testimony, presuppose
that an error occurred. Unfortunately, by this time Dr. Hardin had
repeatedly made the point that he did not believe Peggy Grant.
Based on the record, we cannot find that attorney Levy was at
fault. Moreover, we find that the trial court's admonishments and
instructions were not sufficient to cure the resulting prejudice.
Because Dr. Hardin's testimony provided strong support for
Petroff's and Mueller's testimony that Grant in fact gave
preoperative oral consent, we find that the erroneous admission of
his testimony substantially affected the outcome of the trial. The
trial court's judgment is reversed, and this cause is remanded for
a new trial.
Grant's final argument on appeal is that the trial court erred
in denying her leave to file a third amended complaint, including
count V, which sought punitive damages for willful and wanton
battery. The court's decision was based on section 2-1115 of the
Code of Civil Procedure, which provides:
"In all cases, whether in tort, contract or otherwise, in
which the plaintiff seeks damages by reason of legal, medical,
hospital, or other healing art malpractice, no punitive,
exemplary, vindictive or aggravated damages shall be allowed."
(Emphasis added.) 735 ILCS 5/2-1115 (West 1994).
(Nonpublishable material under Supreme Court Rule 23 omitted.)
Basically, the trial court ruled that the definition of
malpractice is broad and encompasses the alleged battery here.
Plaintiff argues that the battery stands independent of plaintiff's
allegation of healing art malpractice and, thus, does not violate
section 2-1115 of the Code of Civil Procedure. 735 ILCS 5/2-1115
(West 1994).
Our analysis begins with a determination of whether the claim
is one in which the plaintiff seeks damages by reason of healing
art malpractice, as defendant claims, or whether it is a simple
case of battery, as the plaintiff claims. In count V plaintiff
charged:
"3. That on or around September 7, 1989, the Plaintiff
entered the Southwestern Illinois Outpatient Surgical Center
and *** Plaintiff consulted and employed the Defendant for
compensation paid and/or to be paid, to provide her with
proper gynecological medical and surgical care and treatment
and *** to attend and perform certain surgical procedures on
her, namely[,] a hysteroscopy, dilation and curettage, and
pelviscopy.
4. That on said date and time, the Defendant accepted
employment for a certain consideration, pursuant to which he
undertook, entered upon and rendered to Plaintiff,
gynecological medical and surgical care and treatment,
namely[,] a hysteroscopy, dilation and curettage, and
pelviscopy.
5. That unbeknownst to Plaintiff ***, the Defendant also
performed the surgical procedure of tubal cautery and
transection.
6. That at the time of the medical and surgical care and
treatment rendered to the Plaintiff and described above, the
Plaintiff had not authorized the performance of the surgical
procedure of tubal cautery and transection.
7. Through the acts of performing the unauthorized
surgical procedure of tubal cautery and transection upon the
Plaintiff, the Defendant willfully and wantonly battered the
Plaintiff."
It is apparent from these allegations, which are taken as true for
purposes of the motion to dismiss, that the plaintiff in the
instant case is not alleging that the tubal ligation was performed
improperly. Whether Dr. Petroff performed the tubal ligation
correctly is irrelevant to count V because plaintiff alleges that
Petroff had no authority to perform it in the first place.
Plaintiff's claim of malpractice in count I stems from Petroff
allegedly performing the tubal ligation without utilizing the
appropriate standard of care. The question we must answer is, "Is
plaintiff's claim in count V brought `by reason of healing art
malpractice'"?
In Cohen v. Smith, 269 Ill. App. 3d 1087, 648 N.E.2d 329
(1995), a patient and her husband filed suit against a hospital and
a male nurse alleging battery, intentional infliction of emotional
distress, and violation of the Right of Conscience Act (745 ILCS
70/1 et seq. (West 1992)) due to the defendants' failure to honor
the plaintiff patient's religious beliefs against being seen
unclothed by a male. The court held that the plaintiffs' claim was
not one for medical malpractice, but that the plaintiffs' complaint
stated causes of action for battery, intentional infliction of
emotional distress, and violation of the Right of Conscience Act.
As was also the problem in Cohen, it seems the only reason
there is some hesitancy over the issue of plaintiff's claim under
count V for the alleged battery that occurred in this case is
because the contact took place in a hospital between a patient and
her physician. The physician-patient relationship does not change
the nature of the underlying action. What if Dr. Petroff had cut
off Peggy Grant's leg while she was under anesthesia? Would we
deny the fact that a battery occurred simply because the doctor
committed the act during an operation which Peggy Grant had
contracted him to perform? Peggy Grant's battery claim in the
instant case arises independently of the alleged healing art
malpractice. The allegations constituting a cause of action for
battery stem from an unconsented-to touching. Just because
plaintiff has a separate malpractice claim where nonconsent was an
issue does not mean that an independent claim for battery should be
precluded.
Therefore, we reverse the trial court's denial of leave to
file the battery claim.
In light of the foregoing, the judgment of the circuit court
is reversed, and this cause is remanded for a new trial.
Reversed and remanded.
WELCH, J., concurs.
JUSTICE RARICK, dissenting:
I respectfully dissent.
I cannot accept the majority's conclusion that the admission
of Dr. Hardin's testimony was so prejudicial as to affect the
outcome of the trial.
It is evident that there was some confusion as to what,
exactly, Dr. Hardin was testifying. On direct examination he
testified that based upon his examination of the records, the
consent Grant gave was informed. Plaintiff's counsel objected,
however, believing that Dr. Hardin was being asked whether or not
preoperative oral consent had been given, i.e., whether Grant was
being truthful when she said she had not given preoperative
consent. The trial court attempted to clarify this for plaintiff's
counsel and admonished the jury, but on cross-examination
plaintiff's counsel asked Dr. Hardin what expertise he had to
determine whether Grant or Dr. Petroff was telling the truth. When
defendant's counsel objected, the trial court again tried to
clarify for plaintiff's counsel exactly what Dr. Hardin did and did
not testify to. Nevertheless, plaintiff's counsel asked several
questions which elicited from Dr. Hardin an opinion with respect to
Grant's veracity. At the conclusion of Dr. Hardin's testimony, the
trial court again admonished the jury that his testimony could only
be considered on the issue of whether an oral consent met the
standard of care, and to the extent that he gave an opinion on
whether or not she gave consent, the jury was to disregard such
testimony.
Reviewing the relevant portions of Dr. Hardin's testimony, I
believe that it was plaintiff's counsel who misunderstood Dr.
Hardin's testimony, and in attempting to cross-examine Dr. Hardin
on what he thought Dr. Hardin said, plaintiff's counsel elicited
from Dr. Hardin comments on Grant's veracity. When a party
introduces or elicits evidence, he cannot later complaint about its
admission. Gillespie v. Chrysler Motors Corp., 135 Ill. 2d 363,
553 N.E.2d 291 (1990).
I also take issue with the majority's position that the
admonishments given to the jury by the trial court were
insufficient to cure the prejudice. The trial court repeatedly
admonished the jury that while Dr. Hardin could give an opinion as
to whether preoperative oral consent met the standard of care, he
could not give an opinion on whether such consent had in fact been
obtained, and that any such opinion should be disregarded. The
trial court's admonishments could not have been more thorough or
more clear. I find it inconceivable that the jury misunderstood or
ignored them.
Finally, in view of the fact that both Dr. Petroff and nurse
Mueller testified that Grant in fact gave preoperative oral
consent, Dr. Hardin's testimony was cumulative at best and hardly
sufficient to sway the outcome of the trial. Furthermore, I note
that Grant's testimony is not part of the record on appeal.
I also disagree with the majority's conclusion with respect to
the trial court's denial of Grant's motion for leave to file a
third amended complaint. The trial court's ruling did not prevent
Grant from introducing evidence on the allegation of infliction of
emotional distress or battery; it merely prevented her from seeking
punitive or exemplary damages based thereon. The jury was
instructed with respect to both the infliction of emotional
distress count and the battery count. The jury returned a general
verdict for Dr. Petroff, and the return of a general verdict
creates a presumption that all material issues upon which proof was
offered were found in favor of the prevailing party. Boll v.
Chicago Park District, 249 Ill. App. 3d 952, 620 N.E.2d 1082
(1991); Rendleman v. ABA Building Maintenance, Inc., 222 Ill. App.
3d 367, 583 N.E.2d 703 (1991). Because the jury found that no
battery occurred, no prejudicial error could have arisen from the
trial court's denial of Grant's request for leave to file the third
amended complaint.
For the foregoing reasons, I dissent.
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