Fetzer v. Wood

569 N.E.2d 1237, 211 Ill. App. 3d 70, 155 Ill. Dec. 626, 1991 Ill. App. LEXIS 534
CourtAppellate Court of Illinois
DecidedApril 1, 1991
Docket2-90-0433
StatusPublished
Cited by56 cases

This text of 569 N.E.2d 1237 (Fetzer v. Wood) 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
Fetzer v. Wood, 569 N.E.2d 1237, 211 Ill. App. 3d 70, 155 Ill. Dec. 626, 1991 Ill. App. LEXIS 534 (Ill. Ct. App. 1991).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs Ellen Fetzer, as administrator of the estate of the deceased, Elva Sloan, and Richard Hall filed the instant medical malpractice action against defendants, Dr. Michael Wood, Dreyer Medical Clinic, and Mercy Center for Healthcare Services on October 13, 1987. Pursuant to a settlement agreement, defendant Mercy Center was later dismissed as a party to the action. On January 16, 1990, plaintiffs filed their first amended complaint against the remaining two defendants pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2) and the Survival Act (Ill. Rev. Stat. 1985, ch. 110½, par. 27-6).

According to the complaint, defendant Dr. Wood was negligent in his treatment of the deceased in that he failed to obtain an adequate history from the patient; failed to obtain appropriate consultations with other medical specialists; failed to administer appropriate medication; failed to order necessary tests and procedures; and failed to diagnose and treat the gastric ulcers which ultimately caused the death of Elva Sloan. Defendant Dreyer Medical Clinic was alleged to be negligent in that defendant Dr. Wood was an employee of the clinic, acting within the scope of his employment at all times relevant to the litigation. The complaint further alleged that the negligent acts or omissions of the defendants occurred beginning on March 8, 1986, when defendant Dr. Wood first treated the deceased, and continued until Elva Sloan’s death on February 23,1987.

Prior to trial, defendants filed a motion in limine to exclude the testimony of Stanley Smith, plaintiff’s economic expert. Defendants argued that Smith’s testimony regarding the economic valuation of the deceased’s loss of the enjoyment of life and loss of society was not admissible in Illinois. The lower court granted the motion, ruling that Smith’s testimony was speculative, intangible and unrecognized in Illinois.

At trial, plaintiffs presented the expert medical testimony of Dr. Arthur Lurvey. Dr. Lurvey’s testimony, if believed, tended to establish defendants’ negligence. Specifically, Dr. Lurvey opined that defendant Dr. Wood breached the standard of care applicable to a physician when he treated Mrs. Sloan on March 8, 1986, April 4, 1986, and during and after Mrs. Sloan’s hospitalization in January 1987. Defendants presented the expert medical testimony of Dr. Brett Hanauer. Dr. Hanauer’s testimony, if believed, tended to establish that defendants were not negligent. Dr. Hanauer testified that, in his opinion, defendant Dr. Wood did not deviate from the standard of care either on March 8, 1986, April 4, 1986, or at any other time during his treatment of the deceased.

A jury instruction conference was held on January 25, 1990, at which time the court approved defendants’ instruction No. 31 (Illinois Pattern Jury Instructions, Civil, No. B21.02 (3d ed. 1990)(IPI Civil 3d)), which described the standard under the modified comparative negligence statute. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1116.) Plaintiffs objected, arguing that the causes of action accrued prior to the death of Mrs. Sloan and prior to the enactment of the statute precluding any recovery to plaintiffs deemed to be more than 50% negligent. The lower court ruled that both the Survival Act claim and the Wrongful Death Act claim accrued at the time of death of the deceased and that the instructions were therefore appropriate. The court also refused plaintiffs’ instructions which sought to include the loss of the enjoyment of life as part of the definition of pain and suffering. At the close of the jury instruction conference, plaintiffs also made an offer of proof regarding the testimony of their economic expert.

Following trial, the jury answered the special interrogatory, which asked whether or not the contributory negligence of the deceased exceeded 50% of the proximate cause of her injury or damage, in the affirmative. The jury also returned a verdict in favor of the defendants and against the plaintiffs. Plaintiffs’ subsequent post-trial motion was denied, and plaintiffs filed their timely notice of appeal.

On appeal, plaintiffs raise the following issues: (1) whether the trial court erred in giving the jury an instruction and a special interrogatory permitting a verdict in favor of defendants if the deceased’s contributory negligence exceeded 50% of the proximate cause of her injuries and death; and (2) whether the trial court erred in excluding the testimony of plaintiffs’ economic expert regarding the economic valuation of the loss of enjoyment of the decedent’s life and the loss of her society. We affirm in part, reverse in part, and remand.

Plaintiffs’ first contention is that the trial court erred in giving the jury the modified comparative negligence instruction and a related special interrogatory, which precluded any recovery by plaintiffs as to both the Survival Act and Wrongful Death Act claims if the jury found that the deceased’s contributory negligence exceeded 50% of the proximate cause of her injuries and death. In Illinois, parties have the right to have the jury instructed on the issues presented, principles of law to be applied, and the necessary facts to be proved in support of its verdict. (Leonard v. Pitstick Dairy Lake & Park, Inc. (1990), 202 Ill. App. 3d 817, 823.) The test is whether, taken as a whole, the instructions are sufficiently clear so as not to mislead and whether they fairly and correctly state the law. (Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 568.) Where an erroneous instruction results in prejudice, reversal for a new trial is required. Korpalski, 114 Ill. App. 3d at 568.

The parties agree that resolution of this issue depends upon the date on which plaintiffs’ causes of action accrued. If the claims accrued prior to November 25, 1986, the instruction incorporating the “modified” comparative negligence standard was erroneous, and an instruction based on “pure” comparative negligence should have been given. If the claims accrued on or after November 25, 1986, the instruction was proper. Prior to the enactment of the modified comparative negligence statute (Ill. Rev. Stat. 1989, ch. 110, par. 2—1116), Illinois had applied the pure form of comparative negligence. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 28.) Under the pure form, the plaintiff’s damages were simply reduced by the percentage of fault attributable to him, even if his contributory negligence exceeded 50%. (Alvis, 85 Ill. 2d at 25.) On the other hand, as to causes of action accruing on or after November 25, 1986, the modified form applies, and a contributorily negligent plaintiff may recover only so long as the percentage of his fault does not exceed 50% of the total. Ill. Rev. Stat. 1989, ch. 110, par. 2-1116.

Briefly, the arguments of the parties are as follows. Plaintiffs argue that their claims, based on negligence, accrued as early as March 8, 1986, when defendant Dr. Wood first treated, and allegedly misdiagnosed, the deceased. They contend that negligence occurred on that date, resulting in injury to the deceased, and that such negligence continued until the deceased’s death on February 23, 1987. Plaintiffs maintain, therefore, that the causes of action accrued prior to the effective date of the modified comparative negligence statute.

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Cite This Page — Counsel Stack

Bluebook (online)
569 N.E.2d 1237, 211 Ill. App. 3d 70, 155 Ill. Dec. 626, 1991 Ill. App. LEXIS 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fetzer-v-wood-illappct-1991.