Compton v. Ubilluz

819 N.E.2d 767, 353 Ill. App. 3d 863, 289 Ill. Dec. 271
Appellate Court of Illinois·Decided November 10, 2004·No. 2-04-0049·Published·Cited by 40 cases

Opinion

JUSTICE BYRNE

delivered the opinion of the court:

In 1987, plaintiff, Annette Compton, was 48 years old when she was diagnosed with cervical cancer, which metastasized to her lungs. Plaintiff underwent several surgical procedures and chemotherapy, and she experienced pulmonary problems and neurological side effects from the treatment. Ten years later, plaintiff presented different neurological symptoms and obtained the services of defendant Rodrigo Ubilluz, M.D. (hereinafter defendant), on August 4, 1997. Defendant failed to diagnose a vitamin B12 deficiency that had caused a subacute combined degeneration of plaintiffs spinal cord. The problem was eventually diagnosed 10 months after plaintiff first visited defendant.

On June 6, 2000, plaintiff filed a complaint for medical malpractice. Defendant admitted that he breached a duty to diagnose the vitamin B12 deficiency, but he disputed the issues of proximate cause and damages. Defendants Central Du Page Hospital and Central Du Page Health settled with plaintiff and were dismissed before trial. Following a lengthy trial, a jury found that defendant Fred Nour, M.D., was not liable. However, the jury returned a $1.73 million verdict against defendant, and the trial court entered a judgment of $1.68 million to account for the pretrial settlement. Defendant appeals, contending that the trial court committed reversible error by (1) admitting the testimony of plaintiffs damages expert, Alan Spector, M.A.; (2) using Illinois Pattern Jury Instructions, Civil, Nos. 30.03 and 30.21 (2000) (hereinafter IPI Civil (2000) Nos. 30.03, 30.21), which address aggravation of a preexisting medical condition; and (3) permitting plaintiffs counsel to inform the jury of the timing of defendant’s admission regarding the diagnosis and to otherwise engage in “histrionic conduct” during closing argument. We affirm.

Because the parties are familiar with the facts, we set forth the relevant evidence as part of our analysis of each issue.

1. Motion In Limine.

Defendant initially argues that the trial court committed reversible error when it denied defendant’s pretrial motion in limine that sought to bar Spector from rendering an opinion on plaintiffs’ damages. In denying plaintiffs motion in limine, the trial court ruled that defendant could cross-examine Spector and introduce other evidence of plaintiffs expenses that were caused by her preexisting condition before defendant negligently failed to diagnose her vitamin B12 deficiency. Because Spector is not a physician, the court precluded him from testifying to any of plaintiffs future health care needs that required a physician’s prescription or order. Defendant’s counsel cross-examined Spector but did not introduce any evidence to rebut his testimony.

Plaintiff elicited testimony to establish Spector’s qualifications as an expert. Spector testified that he has served for 28 years as executive director of Glenkirk, an organization of 300 employees and 49 facilities that assists people with disabilities. In addition to his administrative tasks, Spector recommends therapeutic life care plans and helps families modify their homes or construct new ones to accommodate disabled family members. Spector earned a bachelor’s degree in special education and a master’s degree in the administration of programs for people with disabilities.

Spector visited plaintiff in her home for several hours on March 9, 2002. Plaintiff answered a 14- or 15-page questionnaire so Spector could recommend a program that would be “reasonable, economical, and productive” to help her lead “a[s] safe, healthy, and as pleasant a life as she’s capable of.” Spector testified that he did not consider the cause of plaintiff’s condition and focused only on planning for her future. Spector explained that plaintiff is wheelchair-bound and experiences pain, sensory deficits, tingling, muscle weakness, colostomy, and incontinence daily. Plaintiff lives in a two-story unit, but she cannot reach the second floor, which contains her bedroom and the only full bathroom. Because a conversion of the current home would be too costly, Spector recommended a single-floor residence with wide wheelchair-accessible doors and hallways and a kitchen with low countertops. Spector also recommended a power wheelchair, which he estimated would cost $10,000 to $20,000 because they are rare. Spec-tor also estimated that a suitable home would cost $250,000. Lifts, grab rails, and other devices for the activity program would cost an additional $5,000 to $10,000. Spector also recommended a voice-activated computer for $10,000 and a van with a wheelchair lift for $30,000 to $35,000. An annual depreciation fund of $16,000 would defray the cost of replacing the van and the other capital improvements. Spector also testified at length about the cost of and reasons for recommending certain therapeutic services, such as weekly activity therapy and occupational therapy, a rehabilitative development program, a visiting health care nurse, and a personal attendant.

Expert testimony is admissible at trial when the expert has knowledge or experience not common to a layperson and that knowledge or experience would aid the trier of fact in determining the facts at issue. The expert’s testimony is admissible if it aids the trier of fact by explaining a factual issue beyond the fact finder’s ordinary knowledge, but the opinion is inadmissible if it merely recites a legal conclusion. The admission of expert testimony is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Martin v. Sally, 341 Ill. App. 3d 308, 315 (2003).

Defendant argues that plaintiff failed to establish that defendant’s breach of his duty to diagnose the vitamin deficiency proximately caused plaintiff’s need for the new home, special equipment, and therapy that Spector recommended. In his brief, defendant presents the related arguments that plaintiff failed to establish a medical foundation for Specter’s testimony and that Spector lacked expertise to opine about the type and cost of housing that plaintiff heeded.

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Compton v. Ubilluz, 819 N.E.2d 767, 353 Ill. App. 3d 863, 289 Ill. Dec. 271 (Ill. Ct. App. 2004).

819 N.E.2d 767 (Compton v. Ubilluz) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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