Witherell v. Weimer

499 N.E.2d 46, 148 Ill. App. 3d 32, 101 Ill. Dec. 679, 1986 Ill. App. LEXIS 2885
CourtAppellate Court of Illinois
DecidedJuly 17, 1986
Docket3-84-0759
StatusPublished
Cited by9 cases

This text of 499 N.E.2d 46 (Witherell v. Weimer) 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
Witherell v. Weimer, 499 N.E.2d 46, 148 Ill. App. 3d 32, 101 Ill. Dec. 679, 1986 Ill. App. LEXIS 2885 (Ill. Ct. App. 1986).

Opinions

JUSTICE WOMBACHER

delivered the opinion of the court:

Defendants, J. I. Weimer, M.D., and R. K. Taubert, M.D., appeal the jury verdict against them in the amount of $300,000. They cite numerous alleged errors at trial. Plaintiff, Betty Witherell, appeals the trial court’s reduction of her award on the basis of comparative fault. The trial court also held section 2 — 1205 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1205) to be unconstitutional. We reverse.

This is the second appeal in this case. The prior appeal concerned the circuit court’s grant of the defendant doctors’ motion to dismiss. This court reversed, and the supreme court affirmed. (Witherell v. Weimer (1979), 77 Ill. App. 3d 582, 396 N.E.2d 268, aff'd (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) Upon remand, a jury trial was held. The jury found in favor of the plaintiff and awarded her $500,000 in damages. The jury also apportioned 40% of the damages to her own negligence, thus reducing the award to $300,000.

The first issue we shall deal with concerns the application of the statute of limitations to the present case. Among other contentions, defendants claim that a bifurcated hearing on the issue should have been held, and that the jury erred in its findings. We find, however, that we are precluded from addressing these issues, as they are barred due to res judicata. The supreme court decided the issue in one concise statement. “In our opinion, generally accepted principles of equitable estoppel prevent the defendant doctors from urging the limitations bar.” (Witherell v. Weimer (1981), 85 Ill. 2d 146, 158, 421 N.E.2d 869.) The court further stated that “fundamental fairness require[s] that the defendant doctors be held estopped by their conduct from now arguing that plaintiff should have sooner complained against them for a condition they repeatedly assured her she did not have.” 85 Ill. 2d 146, 160, 421 N.E.2d 869.

It is readily apparent that the supreme court, by the two above quoted sentences, decided, as a matter of law, the statute of limitations would not act as a bar in this case. Defendants claim that the fact, adduced after the supreme court decision, that plaintiffs husband had a vasectomy in the early 1970’s should change the decision. We see no connection between the vasectomy and the defendant’s conduct. The supreme court’s holding was quite clear and unambiguous. “A question of law decided on a previous appeal is binding on both the trial court and the appellate court.” (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1984), 127 Ill. App. 3d 589, 591, 469 N.E.2d 389.) Both parties inexplicably spent a great portion of their argument, both oral and written, on this issue. We find that the supreme court disposed of the question in one simple sentence! It is res judicata.

The second issue deals with a constitutional question. The trial judge held section 2 — 1205 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1205) to be unconstitutional as arbitrary and specific legislation. As such, it would be violative of the Constitution of 1970 (Ill. Const. 1970, art. IV, sec. 13.) Having found the statute to be infirm, the court denied defendants’ request for a setoff. Defendants also challenge this ruling.

Section 2 — 1205 allows a reduction of up to 50% of the amount of recovery for unsubrogated reimbursements for medical charges, hospital charges, etc. This section was enacted in response to the medical malpractice “crisis” of 1976. Guidance for our analysis is found in Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 570, a case which upheld the constitutionality of the repose provision in the statute of limitations enacted with the section presently under scrutiny. Cf. Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416.

The analysis of a claim of special legislation is similar to that of an equal protection claim. The legislature may regulate persons or objects in a class if there is a reasonable basis for doing so. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 315, 402 N.E.2d 570.) In Anderson, the court found a reasonable basis to distinguish between physicians and hospitals and the general class of health-care providers. The statute was drawn narrowly to apply to those most affected by the malpractice explosion that existed. 79 Ill. 2d 295, 319, 402 N.E.2d 570.

The object of the legislation was to insure the continued availability of malpractice insurance to those who were affected by the multitude of claims and thus to insure the continuation of health services from those affected groups. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 317, 402 N.E.2d 570.) Likewise, the obvious intention of section 2 — 1205 is to prohibit a double recovery of damages. Those who are injured and reimbursed, and will not recover twice for their reimbursed expenses, may be less likely to bring suit against their physician. With fewer suits and fewer double recoveries, malpractice premiums are not forced to increase, thus achieving the goal of the legislature, i.e., keeping malpractice insurance available to all practitioners.

The trial court relied primarily on Wright v. Central Du Page Hospital (1976), 63 Ill. 2d 313, 347 N.E.2d 736. The holding in Wright is clearly distinguishable from the present case. The Anderson court noted that Wright disapproved of the act because it would have been possible for the seriously injured to be unable to recover all medical expenses because of the $500,000 limit on recovery in malpractice cases. Anderson v. Wagner (1979), 79 Ill. 2d 295, 304-05, 402 N.E.2d 570.

In the present section, we have no such limit on the recovery of damages. The section does not hinder a plaintiffs right to a full recovery for his damages. It merely limits his recovery to those items for which he was not reimbursed. The section is thus a reasonable method of the legislature’s attempt to attain its goal. For this reason, we must reverse the trial court’s holding that section 2 — 1205 is unconstitutional.

The third and decisive issue concerns the cross-appeal. Plaintiff has cross-appealed the trial court’s acceptance of the verdict in regard to the question of comparative fault. Plaintiff claims that defendants did not generally or specifically plead and prove allegations of contributory négligence. The trial court noted that defendants had no duty to plead these allegations. The trial court also refused to place the burden of proof as to any contributory negligence upon defendants. The trial judge subsequently allowed the jury’s determination of the plaintiff’s negligence to stand.

The supreme court recently passed on the burden-of-proof issue in Casey v. Baseden (1986), 111 Ill. 2d 341. Casey found that plaintiffs were no longer obligated to plead and prove their freedom from contributory negligence. Thus, the burden of proving a plaintiff’s negligence was placed on defendants and the instruction given in Casey, placing the burden on the defendant, was proper.

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Witherell v. Weimer
499 N.E.2d 46 (Appellate Court of Illinois, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
499 N.E.2d 46, 148 Ill. App. 3d 32, 101 Ill. Dec. 679, 1986 Ill. App. LEXIS 2885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witherell-v-weimer-illappct-1986.