Babikian v. Mruz

956 N.E.2d 959, 353 Ill. Dec. 831
CourtAppellate Court of Illinois
DecidedJuly 18, 2011
Docket1-10-2579
StatusPublished
Cited by12 cases

This text of 956 N.E.2d 959 (Babikian v. Mruz) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Babikian v. Mruz, 956 N.E.2d 959, 353 Ill. Dec. 831 (Ill. Ct. App. 2011).

Opinion

956 N.E.2d 959 (2011)
353 Ill. Dec. 831

Lisa BABIKIAN, Plaintiff-Appellee,
v.
Richard MRUZ, M.D., Defendant-Appellant.

No. 1-10-2579.

Appellate Court of Illinois, First District, First Division.

July 18, 2011.

*961 Pretzel & Stouffer Chartered, Chicago (Timothy A. Weaver, Michael A. Barry, of counsel), for Defendant-Appellant.

Law Office of Kenneth C. Chessick, M.D., Schaumburg (Kenneth C. Chessick, M.D., Magdalena Dworak, of counsel), for Plaintiff-Appellee.

OPINION

Justice HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Lisa Babikian, brought this action against the defendant, Richard Mruz, M.D., seeking recovery for damages sustained as a result of negligent medical treatment. The jury found in favor of the plaintiff and returned a verdict in the amount of $500,500. The circuit court entered judgment on the verdict, and the defendant has appealed. For the reasons that follow, we affirm in part, reverse in part, and order a setoff in favor of the defendant.

¶ 2 The record reflects the following relevant facts. The plaintiff came under the care of the defendant in February 2000. After examining the plaintiff, the defendant performed a diagnostic laparoscopy to determine whether she suffered from endometriosis. The procedure was performed on an outpatient basis at Alexian *962 Brothers Medical Center (Alexian Brothers). During the laparoscopy, the defendant pierced the plaintiff's transverse colon, requiring immediate corrective surgery by another surgeon. Immediately after that surgical repair had been accomplished, the defendant completed the laparoscopy. He found no evidence of endometriosis, but discovered a seven-centimeter ovarian cyst, which was sent to the lab for testing.

¶ 3 The perforation of the plaintiff's transverse colon required further hospitalization, a colostomy, and an additional surgery to reverse the colostomy. The plaintiff also developed ileus, a condition that necessitated a three-week hospital stay. The multiple incisions caused the plaintiff to develop hernias, also requiring further hospitalization. As a result of these treatments and complications, the plaintiff suffers from permanent pain in her abdomen. In addition, her mental health declined, impelling her to seek treatment from psychologists and psychiatrists. The plaintiff was prescribed antidepressant medications and eventually required emergency hospitalization because she had become suicidal.

¶ 4 Prior to filing suit against the defendant, the plaintiff and her husband, Aleco, entered into an agreement with Alexian Brothers. Pursuant to that agreement, the plaintiff and Aleco executed a covenant not to sue in exchange for a payment of $70,000, which was not apportioned in any way.

¶ 5 The plaintiff and Aleco subsequently brought this medical malpractice action against the defendant. The plaintiff claimed that, as a result of the defendant's negligence, she suffered damages for permanent injury and disfigurement, medical expenses, pain and suffering, and emotional distress. Aleco sought recovery for loss of consortium.

¶ 6 During discovery, the defendant identified himself as a controlled expert witness under Supreme Court Rule 213(f)(2) (Ill.S.Ct. R. 213(f)(2) (eff.Jan.1, 2007)), stating that he "would testify regarding his training, education, and experience," as well as "his care and treatment of [the plaintiff]," and "his compliance with the standard of care." The defendant further disclosed that he would testify that his care and treatment of the plaintiff "were reasonable, appropriate, and within the standard of care, and [that] his care and treatment did not cause the injuries as claimed by the plaintiff."

¶ 7 Also during discovery, the plaintiff and Aleco disclosed the existence of the covenant not to sue and that they had received a payment of $70,000 from Alexian Brothers. Approximately two years before trial, the plaintiff and Aleco divorced, and Aleco thereafter voluntarily dismissed his loss-of-consortium claim.

¶ 8 Prior to trial, the defendant filed a motion seeking to preclude the plaintiff from presenting evidence that he had previously failed the board examination in obstetrics and gynecology. The trial court granted the defendant's motion, in part, ruling that evidence regarding the defendant's lack of board certification would be admitted only if the defendant provided expert opinions as to the standard of care.

¶ 9 At trial, the defendant was called as an adverse witness by the plaintiff. During that examination, the defendant testified regarding his professional education and experience, as well as his treatment of the plaintiff and the reasons underlying his treatment decisions. When the plaintiff's counsel inquired whether he believed that he had complied with the standard of care in treating the plaintiff, the defendant responded, "I am a physician for over 30 years or so. * * * I am going to do things appropriately, I am going to ask the proper questions. I did in [the plaintiff's] case." The defendant further testified *963 that he was not board certified. In addition, after acknowledging that a candidate for board certification must first take the written portion of the board examination before sitting for the oral portion, the defendant stated that he had not taken the oral portion of the test. The defendant was never expressly asked, nor did he testify regarding, whether he had failed the written portion of the certification exam. A subsequent objection by defense counsel was overruled based on the fact that the defendant had earlier testified to his expert opinion regarding the standard of care.

¶ 10 The trial court instructed the jurors that, if they found in favor of the plaintiff, they could award damages for pain and suffering and also for emotional distress, as long as those elements of damages were supported by the evidence. The jury returned a verdict for the plaintiff in the amount of $500,500, which included specific awards of $200,000 for pain and suffering and $130,000 for emotional distress.

¶ 11 The defendant filed a posttrial motion, asserting that the trial court erred in permitting the plaintiff to imply to the jury that the defendant had failed the board-certification examination and by instructing the jury that damages could be awarded separately for both pain and suffering and emotional distress. In addition, the defendant requested that he be awarded a setoff based on the prior settlement agreement between the plaintiff and Alexian Brothers. The trial court denied the defendant's posttrial motion in its entirety, and this appeal followed.

¶ 12 The defendant initially contends that the trial court committed reversible error in allowing the plaintiff to present evidence and argument that he was not board certified and that he had failed a portion of the board-certification examination. In response, the plaintiff argues that the defendant has forfeited this issue by failing to assert a timely objection at trial. We agree that the issue has been forfeited on appeal.

¶ 13 A court's evidentiary rulings may not be challenged on appeal if they have not been properly preserved. See generally Thornton v. Garcini, 237 Ill.2d 100, 106, 340 Ill.Dec. 557, 928 N.E.2d 804 (2009). Rulings on motions in limine are interlocutory and remain subject to reconsideration by the court throughout the trial. Cetera v. Di Filippo, 404 Ill.App.3d 20, 40, 343 Ill.Dec.

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Cite This Page — Counsel Stack

Bluebook (online)
956 N.E.2d 959, 353 Ill. Dec. 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babikian-v-mruz-illappct-2011.