SIXTH DIVISION April 7, 2006
No. 1-04-3217
MARIA STRINO and FRANK STRINO, ) Appeal from the Individually and as Special ) Circuit Court of Administrators of the Estate of ) Cook County Joseph Strino, Deceased, ) ) Plaintiffs-Appellants, ) ) v. ) ) PREMIER HEALTHCARE ASSOCIATES, P.C., ) and JAMES R. LINDEMULDER, ) Honorable ) Robert Gordon, Defendants-Appellees. ) Judge Presiding
PRESIDING JUSTICE McNULTY delivered the opinion of the
court:
Maria and Frank Strino's son Joseph died at 20 months of
age. The Strinos, as individuals and on behalf of Joseph's
estate, sued the obstetrician who delivered Joseph for
negligently causing the death and for negligently causing Joseph
to suffer during his brief life. The obstetrician argued that he
did not act negligently, and Frank, acting on Maria's behalf,
refused the medical procedure that would have given Joseph the
best chance of survival. After two days of deliberations the
jury returned a general verdict in favor of the obstetrician.
On appeal plaintiffs argue that the court should have
excluded evidence of Frank's acts because Frank did not act as
Maria's agent for medical decisions. Plaintiffs also object to
other evidentiary rulings, jury instructions, and answers to the
jury's questions. We hold that defendants presented sufficient 1-04-3217
evidence to support a finding that Frank acted as Maria's agent.
The trial court did not abuse its discretion by sustaining an
objection to the cross-examination of the obstetrician.
Plaintiffs waived objection to other evidentiary rulings and the
responses to jury questions. We cannot determine whether the
instruction on contributory negligence had any prejudicial effect
because plaintiffs did not request a special interrogatory to
determine whether the jury decided in defendants' favor on the
negligence issue. Therefore, we affirm the judgment of the trial
court.
BACKGROUND
Maria chose Dr. James Lindemulder to serve as her
obstetrician in September 1996. Although Lindemulder knew that
Maria delivered her first baby by cesarean section, he
recommended that she try to deliver the baby due in 1997 by
vaginal birth. Doctors refer to the procedure as a vaginal birth
after cesarean, or VBAC for short. Maria agreed to try a VBAC.
Lindemulder told her that if the VBAC failed he would perform a
cesarean section.
Rush-Copley Medical Center admitted Maria on March 27, 1997,
for delivery of her baby. She signed all consent forms the
hospital asked her to sign. Lindemulder prescribed medicine to
induce labor. Labor did not progress far that day. The
following morning Maria received more medicine to induce labor.
After 10 a.m. she began to experience hyperstimulation, in that
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her uterus contracted too frequently. The fetal heart rate
decreased, then rebounded. The fetus underwent further episodic
decelerations, and Maria endured further hyperstimulation over
the following hours.
Around 3:45 p.m. fetal heart decelerations, unrelieved by
efforts to restore the heart rate, caused the nurse to alert
Lindemulder. When Lindemulder arrived he suggested use of
forceps to deliver the fetus immediately. Frank told Lindemulder
not to use the forceps. Lindemulder performed an emergency
cesarean section. He found the uterus ruptured. At 4:10 p.m. he
delivered Joseph through the rupture, at the site of the scar
from the prior cesarean section. Joseph showed almost no signs
of life.
Joseph's pediatrician found that Joseph had suffered severe
damage, largely due to lack of oxygen during the birthing
process. Joseph required constant care until he died in November
1998.
Maria and Frank, as individuals and on behalf of Joseph's
estate, sued Lindemulder and his employer, Premier Healthcare
Associates, in 2000. They sought to recover for negligent
failure to warn Maria of the risks of VBAC and of the risk to the
fetus from undergoing the cesarean section instead of using
forceps for faster delivery. Plaintiffs also charged Lindemulder
with negligent failure to deliver the fetus in a timely manner,
either by cesarean section before 3 p.m. on March 28, 1997, or by
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forceps. They claimed that Lindemulder's negligence caused
Joseph's death. In a separate count they sought to recover, on
behalf of the estate, for Joseph's suffering during his short
life. The parties refer to the claim as a survival action
because, under the provisions of the Probate Act of 1975 (755
ILCS 5/27-6 (West 2000)), the claim remains viable after the
claimant's death. Lindemulder answered that he fully complied
with the standard of care, and plaintiffs acted with contributory
negligence by denying his request for permission to use the
forceps.
In Lindemulder's deposition plaintiffs' attorney pursued the
theory that Lindemulder should have used the forceps to deliver
Joseph sooner:
"Q. Do you think that the use of forceps in a
vaginal delivery *** would be considered a battery if
you didn't get her consent?
A. In a normal circumstance, no, but I was
specifically forbidden by her husband *** as he [said]
definitely, quote, unquote, I will sue you if you use
them.
Q. Did he say that to you?
A. He said that quote, unquote."
At trial Maria testified that Lindemulder did not warn her
of the risk of uterine rupture and neurological damage during
VBAC. Lindemulder did not inform her that he needed to use
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forceps to save the baby's life; if he had so warned her, she
would have told him to use the forceps. Maria admitted that
Lindemulder told Frank, in Maria's hospital room, that he wanted
to use the forceps, and Frank answered that he preferred a
cesarean section. Maria testified that she made no response at
all to the suggestion because Lindemulder never asked her whether
she wanted him to use the forceps.
Lindemulder admitted at trial that he did not specifically
recall discussing the risks of VBAC with Maria. He swore that he
had a standard procedure for informing any candidate for a VBAC
of certain risks, which he listed at trial, including the risk of
uterine rupture. When he arrived to deliver the baby at 3:50
p.m. on March 28, 1997, he examined Maria and found the baby's
head in position for a delivery with the aid of forceps. He told
her: "The heart tones are down. *** [T]he baby needs to come
out." He told her he would use the forceps. Frank then stepped
between him and Maria and said, "I will kick your ass. *** Just
do a cesarean section." Lindemulder said that he could deliver
the baby in 2 minutes with the forceps, but a cesarean section
would take 10 to 15 minutes. Frank said, "No, I want a cesarean
section." Lindemulder went directly to Maria, at the side of her
bed, and again stressed the need for immediate delivery, saying,
"[L]et me use *** forceps right now. The baby needs to come
out." He swore that Maria "closed her eyes, shook her head no
and looked away."
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Plaintiffs' attorney sought to impeach Lindemulder with his
deposition testimony:
"Q. Doctor, it is your testimony that Frank
Strino said to you I'm going to kick your ass. Is that
right?
A. Yes ***.
* * *
Q. Now, in that [medical] record is there any
memorialization of that?
A. No, there's not.
Q. I asked you about those conversations at your
deposition, didn't I?
A. I'm not sure you asked me about what Mr.
Strino said.
Q. Anywhere in this deposition did you tell me or
any of the other lawyers there that Mr. Strino said
that to you?
A. You did not ask me that question.
[Defendants' counsel]: That is not inconsistent.
***
THE COURT: Objection sustained."
Plaintiffs' attorney made no further attempt to use the
deposition testimony for impeachment.
Plaintiffs' expert testified that Lindemulder violated the
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standard of care by giving Maria inadequate warnings about the
medical procedures and by failing to deliver the baby by cesarean
section much earlier on March 28, 1997, when the hyperstimulation
and deceleration of the fetal heart indicated an increased risk
due to the possibility of uterine rupture. Defendants' expert
found that Lindemulder gave Maria all appropriate warnings and he
followed correct procedures for delivering the baby. In
particular, he said that Lindemulder appropriately informed Maria
of the need for rapid delivery and the advisability of using
Defendants sought instructions concerning their theory that
Frank acted as Maria's agent when he disallowed use of forceps.
Plaintiffs objected that defendants had presented no evidence
that could support a finding of agency. The court gave the
pattern instruction for the jury to decide the issue of agency.
Plaintiffs asked the court to use a pattern instruction that
provides:
"Before a [doctor] may [use forceps] upon a
patient, the consent of the patient for the [use of
forceps] must be obtained unless an emergency arises
and treatment is required in order to protect the
patient's health, and it is impossible or impracticable
to obtain consent either from the patient or from
someone authorized to consent for him. Whether there
was such an emergency and whether it was impossible or
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impracticable to obtain consent is for you to decide."
Illinois Pattern Jury Instructions, Civil, No. 105.07
(2005) (hereinafter IPI Civil (2005)).
The court refused the instruction, instead using the pattern
instruction concerning informed consent.
Plaintiffs also objected to submission of a contributory
negligence instruction for the defense against the estate's
survival action. The judge admitted some doubt as to "whether
contributory negligence would apply to the survival action." The
judge said of the instruction:
"I guess we'll leave it in and we can sort it out
later.
*** [I]f I take your position and I find that in
*** the survival action that there was no contributory
negligence, and if I'm reversed on appeal, what's going
to happen is the defendant will receive a new trial.
But if we leave it in and research it and see what the
law is on that point, I really don't know at this
point."
The jury sent the judge several written questions during the
lengthy deliberations. The first question says:
"If we all agree on point D count 1 of the
plaintiff's complaint, but undecided about the other 3
points -- Does that fulfill finding the defend[a]nt
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negligent, or must we resolve the other 3 points?"
The record does not show the court's response. Next, the jury
asked, "Is there a distinction between the defend[a]nts setting
up the affirmative defense to the claim of negligence as opposed
to be contrib[u]tory negligence. [sic]" The judge wrote back,
without objection, "There is no real distinction. Contributory
negligence is an affirmative defense for all practical purposes."
After almost a full day of deliberations, the jury wrote:
"We have been deliberating intens[e]ly the same
set of questions since this morning -- we voted early
this morning and our most recent vote shows no progress
to either side[.] What do you advise?"
Over defendants' objection, the court read the jury the
instruction our supreme court framed for deadlocked juries. See
People v. Prim, 53 Ill. 2d 62, 75-76 (1972). Later that evening the jury sent another note informing the
court that they had made no progress. The last vote, late that
night, informed the court that some jurors found plaintiffs'
expert persuasive on the need for an earlier delivery, and the
other jurors found defendants' expert persuasive.
The following afternoon, with deliberations ongoing after
two full days, defendants' attorney moved for a mistrial. He
argued that any verdict would likely reflect a compromise.
Plaintiffs and their attorney remained silent. The judge denied
the motion, but he decided to reread to the jury all of the
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instructions. At the outset of the rereading, he explained to
the jury:
"I'm going to read these things to you slowly and hope
that you can digest it and maybe that's not even the
question.
I don't know what the problem is. *** But at
least we'll do that and see if that will help at all."
Later that day the jury returned a general verdict in favor of
defendants.
ANALYSIS
On appeal plaintiffs first argue that the court should have
stricken Lindemulder's testimony that Frank told him not to use
the forceps, and the court should not have instructed the jury on
principles of agency, because defendants failed to present
evidence that could support a finding that Frank acted as Maria's
agent for medical decisions. We review the court's decisions on
the admission of evidence and jury instructions for abuse of
discretion.
Plaintiffs rely primarily on Fettes, Love & Sieben, Inc. v. Simon, 46 Ill. App. 2d 232, 233-34 (1964), in which the court
held:
"Proof of the existence of the marital relation
does not establish the husband's agency for his wife.
The agency of the husband is a question of fact to be
proved by direct or circumstantial evidence. There is
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no presumption that the husband has authority to act
for the wife. In an action *** to hold [the wife]
responsible for the act *** of her husband, [the party
claiming agency] has the burden of showing the agency
and authority of the husband or a ratification by the
wife."
In another case involving the alleged agency of a husband
acting for his wife, the court elaborated:
"[A]gency may be established and its nature and extent
shown by circumstantial evidence, and reference may be
had to the situation of parties and property, acts of
parties, and other circumstances germane to the
question. ***
An agent's authority may be presumed from silence
of the alleged principal when he knowingly allows
another to act for him as his agent, and the agent's
scope of authority may be determined by what persons of
reasonable prudence, *** dealing with the agent, might
rightfully believe him to have on the basis of the
principal's conduct." Elmore v. Blume, 31 Ill. App. 3d 643, 647 (1975).
Here, Lindemulder testified that when he told Maria that he
needed to use forceps to deliver the baby immediately, Frank
intervened and asked him to perform the cesarean section instead.
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Maria admitted she heard Frank make this request and she said
nothing. A reasonable person might conclude from that silence in
these circumstances that Maria implicitly authorized Frank to
speak on her behalf. Lindemulder testified that when he asked
her directly if he could use the forceps, "she shook her head
no," ostensibly ratifying her husband's forceful request. We
find that the defense presented sufficient evidence to create an
issue of fact, for the jury to resolve, concerning Frank's
authority to refuse the forceps procedure for Maria. The trial
court committed no error by admitting into evidence Lindemulder's
testimony regarding Frank's acts in the hospital. The court also
correctly gave the pattern instructions on agency.
Next, plaintiffs challenge a ruling on cross-examination.
Plaintiffs' counsel asked Lindemulder, "[I]n this deposition did
you tell me *** that Mr. Strino said ['I will kick your ass'] to
you?" Lindemulder answered, "You did not ask me that question."
His attorney then objected that the evidence showed no
inconsistency, and the court sustained the objection.
"If a witness fails to mention facts under circumstances
which make it reasonably probable that he would mention them if
true, the omission may be shown as an indirect inconsistency."
Esderts v. Chicago, Rock Island & Pacific R.R. Co., 76 Ill. App. 2d 210, 228 (1966). The court should not allow the omission as
impeachment unless the omission makes the prior statement
materially inconsistent with the trial testimony. Tarin v.
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Pellonari, 253 Ill. App. 3d 542, 556 (1993). We will not reverse
a judgment based on a ruling on cross-examination unless the
court abused its discretion and the ruling prejudiced the
appellant. McDonnell v. McPartlin, 192 Ill. 2d 505, 533 (2000).
Here, plaintiffs' counsel asked Lindemulder at the
deposition if the use of forceps would have constituted a battery
against Maria. Lindemulder answered that it would not normally
be a battery, but in this case Frank said "I will sue you if you
use them." To a following question of whether Frank actually
said those words, Lindemulder answered, "He said that quote,
unquote." Lindemulder did not add that Frank also said "I will
kick your ass."
Lindemulder recounted in the deposition Frank's words that
had most bearing on the question counsel asked, concerning
whether use of the forceps would count as a battery. The
following question only requested affirmation of whether Frank
said he would sue. Counsel never asked Lindemulder in the
deposition to repeat verbatim every word Frank said when
Lindemulder asked to use the forceps. Thus, we cannot say that,
if Frank had said "I will kick your ass," Lindemulder would have
mentioned that fact in response to any question asked in the
deposition. We cannot say that the trial court abused its
discretion by holding that Lindemulder's trial testimony was not
materially inconsistent with his deposition testimony.
For their objections to other evidentiary rulings,
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plaintiffs offer bare argument without citation to any law. We
hold that plaintiffs waived the arguments by failing to cite
applicable authority. See 188 Ill. 2d R. 341(e)(7); Dillon v.
Evanston Hospital, 199 Ill. 2d 483, 493 (2002).
Plaintiffs claim that the court should have given IPI Civil
(2005) No. 105.07, which informs the jury that in certain
emergencies a doctor may treat a patient without first obtaining
consent. The notes on use for the instruction state:
"This instruction should not be given when the
issue is informed consent and the cause of action is
negligence. This instruction should only be given when
the cause of action is battery." IPI Civil (2005) No.
105.07, Notes on Use, at 284.
Plaintiffs ask us to ignore the notes, claiming, without
citation, that the notes "are not authoritative law." The
proposition may surprise our supreme court, as that court has
often cited the notes on use of pattern instruction as authority
for proper use of the instructions. E.g., Snelson v. Kamm, 204 Ill. 2d 1, 31 (2003). The trial judge here, following the notes
on use, correctly decided not to give the instruction for
implicit consent in battery cases, and instead gave the
applicable instruction for informed consent in negligence cases.
According to plaintiffs, the trial judge committed
reversible error in his responses to the jury's questions during
the lengthy deliberations, and he should have granted a mistrial.
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But plaintiffs did not, during deliberations, object to the
judge's responses to any of the jury's questions. The failure to
raise a timely objection to the responses to the jury's questions
waives the issue for this appeal. Limanowski v. Ashland Oil Co.,
275 Ill. App. 3d 115, 121 (1995). Plaintiffs also waived any
claim of a right to a mistrial by failing to move for a mistrial
before the jury returned the verdict. Redmond v. Socha, 216 Ill.
2d 622, 639-40 (2005).
If plaintiffs had requested other answers to the jury's
questions during deliberations, the trial court would have had an
opportunity to correct any error before the jury returned a
verdict. And if plaintiffs had moved for a mistrial, the trial
court could have considered grounds for the motion before the
jury returned a verdict. Parties cannot harbor unspoken
objections pending the jury's verdict and then use belated
objections and motions for mistrial to get a second chance for a
favorable verdict. Redmond, 216 Ill. 2d at 639. We will not
reverse the judgment on the basis of the judge's responses to
jury questions, given without objection, and we will not reverse
the judgment for the defendants on the basis of the court's
denial of the defendants' motion for mistrial, where plaintiffs
did not join the motion for mistrial.
Finally, plaintiffs argue that the court should have
sustained their objection to the contributory negligence
instruction in the survival action. Defendants argue that, under
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the "two issue" rule (Nimetz v. Cappadona, 596 A.2d 603, 607
(D.C. 1991)), plaintiffs waived this issue because plaintiffs did
not request a special interrogatory that would have clarified the
basis for the verdict in the survival action. In general:
"[W]here there are two causes of action, or two
defenses, thereby raising separate and distinct issues,
and a general verdict has been returned, and the mental
processes of the jury have not been tested by special
interrogatories to indicate which of the issues was
resolved in favor of the successful party, it will be
presumed that all issues were so determined; and that,
where a single determinative issue has been tried free
from error, error in presenting another issue will be
disregarded." H.E. Culbertson Co. v. Warden, 123 Ohio St. 297, 303, 175 N.E. 205, 207 (1931).
Illinois courts, like the courts of most states (see Nimetz, 596
A.2d at 607 (and cases cited therein)), have adopted the "two
issue" rule. Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987); Krklus v. Stanley, 359 Ill. App. 3d 471, 479 (2005). The rule
applies to errors in instructions, and the Ohio Supreme Court
applied it to a case in which a plaintiff who sued in negligence
objected to a contributory negligence instruction. Knisely v.
Community Traction Co., 125 Ohio St. 131, 137, 180 N.E. 654, 656
(1932). The court refused to address the issue on appeal
because, in the absence of a special interrogatory, the court
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could not determine whether the jury found in the defendant's
favor on the negligence issue. If the jury so found, any error
in the contributory negligence instruction would have had no
effect on the verdict.
Here, too, defendants presented evidence that Lindemulder
did not act negligently, along with evidence that Maria and Frank
acted with contributory negligence. If the jurors decided in
defendants' favor on the negligence issue, they had no need to
decide the contributory negligence claim. Because neither party
submitted special interrogatories, we cannot determine from the
general verdict whether any error in the contributory negligence
instruction affected the verdict. Accordingly, we hold that the
alleged error in allowing the jury to consider contributory
negligence as a defense to the survival action does not warrant
reversal of the judgment here.
Maria's acts when she heard Frank respond to Lindemulder's
suggestion of using forceps can support an inference that she
permitted Frank to act as her agent for purposes of medical
decisions. The trial judge did not abuse his discretion by
admitting Lindemulder's testimony concerning Frank's response.
The judge also did not abuse his discretion by sustaining
defendants' objection to the single question plaintiffs asked
Lindemulder about his deposition. The judge correctly gave the
pattern instruction on agency and denied the pattern instruction
on consent designed for cases in which the plaintiff charges a
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medical professional with battery rather than negligence.
Plaintiffs waived other evidentiary objections for this appeal by
failing to cite relevant authority. They waived any issue
concerning responses to jury questions by failing to object at
trial. Their failure to move for mistrial forecloses them from
charging the court with reversible error for failing to declare a
mistrial. We cannot determine whether the instruction on
contributory negligence in the survival action had any
prejudicial effect because, without a special interrogatory, we
cannot determine whether the jury decided in defendants' favor
based on their expert's testimony that they committed no
negligence. Accordingly, we affirm the trial court's judgment.
Affirmed.
TULLY and O'MALLEY, JJ., concur.
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