Topp v. Logan

554 N.E.2d 454, 197 Ill. App. 3d 285, 143 Ill. Dec. 519, 1990 Ill. App. LEXIS 423
CourtAppellate Court of Illinois
DecidedMarch 30, 1990
Docket1-88-3060
StatusPublished
Cited by22 cases

This text of 554 N.E.2d 454 (Topp v. Logan) 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
Topp v. Logan, 554 N.E.2d 454, 197 Ill. App. 3d 285, 143 Ill. Dec. 519, 1990 Ill. App. LEXIS 423 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiffs brought an action against defendant, Patrick W. Logan, M.D., seeking damages for personal injuries allegedly sustained as a result of negligent medical treatment. After a jury trial, a verdict was returned in favor of defendant, and the trial court entered judgment on the verdict. Plaintiffs have appealed the judgment in favor of defendant, alleging that they were deprived of the right to a fair trial and that the verdict was against the manifest weight of the evidence.

Plaintiffs claimed that defendant failed to take proper and adequate steps to diagnose and treat the ulcer disease of Alex M. Topp (Topp). Topp sought compensation for permanent injuries allegedly suffered as a consequence of defendant’s negligent conduct, and his wife sought recovery for loss of consortium.

The trial on this cause commenced on August 29, 1988. During voir dire of the first panel of the venire, plaintiffs’ counsel indicated that he was looking for jurors who could be fair and impartial, and he inquired whether the members of the panel had any question about their ability to be fair. All of the members of the first panel answered in the negative.

Following plaintiffs’ voir dire and tender to defense counsel of the first panel of the venire, plaintiffs’ counsel noticed that defendant’s pregnant wife was seated in a chair behind defendant, who was sitting at counsel table. During a break in the proceedings and outside the presence of the venire, plaintiffs’ counsel moved for a mistrial. He argued that the seating location of defendant’s pregnant wife would lead the prospective jurors to connect her with defendant and would arouse sympathy on defendant’s behalf, thereby prejudicing plaintiffs and depriving them of a fair trial.

Defense counsel opposed the motion for a mistrial, claiming that defendant’s wife sat behind her husband at counsel table because there were no vacant seats in the gallery when the proceedings began. The trial court denied plaintiffs’ motion for a mistrial, but ordered that defendant’s wife be placed back in the gallery and that she have no contact with defendant in the presence of the prospective jurors. The court subsequently instructed defense counsel to direct defendant’s wife to a bench seat in the gallery.

When the proceedings resumed, defense counsel gestured for defendant’s wife to take a seat in the gallery. During a side bar outside the presence of the venire, plaintiffs’ attorney subsequently renewed his motion for a mistrial, arguing that defense counsel’s gesture directing defendant’s wife to a gallery seat had violated the court’s prior order prohibiting contact with defendant in the presence of the venire. Plaintiffs’ attorney asserted that the attention of the venire members in the jury box had been drawn to defense counsel as she directed defendant’s wife to a gallery seat. The trial court again denied plaintiffs’ motion for a mistrial.

The voir dire then progressed without incident. The venire was questioned by the trial judge and by plaintiffs’ and defendant’s counsel. The prospective jurors indicated that they did not have any feelings one way or another which would affect their judgment about the lawsuit. All of the members of the venire ultimately chosen to serve on the jury stated that they could be fair and keep open minds until they went into the jury room to deliberate. The potential jurors were repeatedly reminded through questioning that any verdict rendered must depend on the evidence that would be introduced at trial and not on outside factors, including sympathy or prejudice. Defendant’s wife was present in the gallery throughout the entire trial.

The evidence adduced at trial revealed that Topp first saw defendant on November 6, 1980, for a routine checkup and continued seeing him once or twice a year for physical examinations through August 1982. During his first visit to defendant’s office, Topp completed a medical history form in which he reported a family history of peptic ulcer disease, that aspirin caused him gastrointestinal upset and that he had an ulcer in 1966. These facts were also included in the medical history taken by a nurse practitioner in defendant’s office in 1980. The nurse practitioner conducted a physical examination and prepared a five-page report which did not reflect that Topp had any complaints of a stomach problem or the presence of a duodenal ulcer.

Due to his illness, Topp was unavailable to testify at trial, and his evidence deposition was admitted. Topp testified that all of his brothers and sisters had suffered from ulcers, that four of his siblings had had surgery for an ulcer condition, but only two of the four had survived the surgery. Topp testified that during the three-year period over which he saw defendant, he had continuing problems with back pain of which he advised defendant. Topp described the back pain as “a little burning” above his waist which affected his ability to sleep. He stated that he usually felt the pain at night and that it went away if he drank milk. Topp indicated that he had never felt any pain in the front part of the abdomen until the day before he was admitted to the hospital in October 1982. He informed defendant that he swam approximately one-half mile six days each week. Topp also stated that defendant did not discuss any diagnosis of his condition prior to his hospitalization in 1982.

Topp testified that defendant initially advised him to take aspirin for his back pain. Because Topp experienced heartburn from aspirin, defendant instructed him to take Ecotrin. From 1980 through 1982, defendant performed blood tests, X rays, and urine tests. Topp also indicated that on almost every visit, defendant performed stool tests, and blood was never noted in his stool.

Topp testified that he saw defendant approximately one week before his ulcer surgery in October 1982. At that time, he told defendant that he could not sleep at night, had a fever, and had pain in his back. Defendant told Topp that he might have a cold and did not prescribe any medication.

Topp’s wife testified at trial that her husband experienced pain down his back and across his shoulders in June 1982. He was awakened from sleep by the pain and had heartburn or a burning pain after meals. After seeing defendant for a regular checkup in July 1982, Topp began taking Ascriptin, a combination of aspirin and antacid. Topp returned to defendant on August 20, 1982, because his pain had become more severe. Specifically, he was experiencing heartburn, increased pain in his shoulder, and was awakened from sleep by the pain.

Mrs. Topp testified that from August 20, 1982, to October 14, 1982, although he had stopped taking Ascriptin, her husband had some nausea and vomiting, extreme pain down his back and right side, stomach pains, and a temperature of 100 degrees. When Topp saw defendant again on October 18, 1982, she reminded him to tell defendant that the pain was similar to that he had experienced when he suffered from his previous ulcer. Mrs. Topp acknowledged that her husband did not complain of stomach or ulcer pains from 1980 to July 1982.

Dr. Robert Magrisso; Topp’s treating physician, testified that Topp was admitted to the hospital on October 19, 1982, and was discharged on November 20, 1982.

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Cite This Page — Counsel Stack

Bluebook (online)
554 N.E.2d 454, 197 Ill. App. 3d 285, 143 Ill. Dec. 519, 1990 Ill. App. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/topp-v-logan-illappct-1990.