Perez v. St. Alexius Medical Center

2020 IL App (1st) 181887

FIRST DISTRICT
SIXTH DIVISION
August 28, 2020

No. 1-18-1887

JESSE PEREZ, as Independent Executor of the Estate of ) Appeal from the
Marilyn Medina Perez, Deceased, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. )
)
ST. ALEXIUS MEDICAL CENTER, an Illinois Corporation; )
JEFFREY E. CHUNG, M.D.; MIDSUBURBAN )
RADIOLOGICAL CONSULTATNTS OF WOODSTOCK, LTD; ) No. 14 L 10905
CHRISTOPHER MICHAEL, M.D.; BRAD L. EPSTEIN, M.D.; )
SUBURBAN WOMEN’S HEALTH SPECIALIST, LTD.; )
DONALD R. TAYLOR, D.O.; SUBURBAN MATERNAL )
FETAL MEDICINE, LLC; VISHVANATH C. KARANDE, )
M.D.; and KARANDE AND ASSOCIATES, S.C., )
)
Defendants )
) Honorable
(St. Alexius Medical Center and Jeffrey E. Chung, M.D., ) Edward S. Harmening
Defendants-Appellees). ) Judge, Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Mikva concurred in the judgment and opinion.
Justice Connors dissented, with opinion.

OPINION

¶1 Plaintiff, Jesse Perez (Jesse) as independent executor of the Estate of Marilyn Medina

Perez, deceased, appeals a judgment following a jury trial for defendants St. Alexius Medical

Center (St. Alexius) and Jeffrey Chung, M.D. Plaintiff also appeals trial court orders striking his

petition for adjudication of criminal contempt against Chung and denying his motion to amend his

posttrial motion to incorporate a perjury allegation from his contempt petition.
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¶2 On appeal, plaintiff contends that (1) the jury’s finding that Chung was not the apparent

agent of St. Alexius was against the manifest weight of the evidence and the court erred by refusing

to give jury instructions submitted by plaintiff related to apparent agency; (2) the court erred by

barring plaintiff from using Chung’s Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2018)

disclosure against defendants as an evidentiary admission and as impeachment; (3) the court erred

by allowing defendants’ expert to use certain images during his testimony even though defendants

did not disclose them until the morning of the expert’s testimony; (4) the court erred by barring

plaintiff from cross-examining Chung with the American College of Radiology (ACR) practice

guideline; (5) the cumulative effects of these errors denied plaintiff a fair trial and warrants a new

trial; and (6) the court erred by dismissing plaintiff’s petition for adjudication of criminal contempt

against Chung and by denying plaintiff’s posttrial motion to include the allegations of perjury in

the petition. Defendants contend that the two-issue rule precludes plaintiff from establishing

reversible error. For the reasons stated below, we vacate the judgment and remand for a new trial.

¶3 I. JURISDICTION

¶4 In 2014, plaintiff brought this civil action against various defendants including Chung, St.

Alexius, Dr. Christopher Michael, M.D., and Suburban Women’s Health Specialists, Ltd.

(Suburban). At trial, the jury considered claims against only Chung, Michael, St. Alexius, and

Suburban. On May 21, 2018, the jury issued verdicts in favor of Chung and St. Alexius against

plaintiff and in favor of plaintiff against Michael and Suburban. The court entered judgment on

the verdicts for Chung and St. Alexius that day and entered judgment regarding Michael and

Suburban on May 29, 2018. Plaintiff filed his posttrial motion on June 18, 2018, and later filed his

petition to adjudicate Chung in criminal contempt and motion to amend his posttrial motion. The

court struck the contempt petition and then denied the posttrial motion and the motion to amend

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on August 28, 2018. Plaintiff filed his notice of appeal on August 31, 2018. Accordingly, we have

jurisdiction here pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art.

VI, § 6) and Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017).

¶5 II. BACKGROUND

¶6 This is a wrongful death and survival action raising medical malpractice claims regarding

Marilyn Perez (Marilyn), who died from metastatic pelvic abdominal cancer about seven months

after she gave birth to twins by caesarean section. The cancer, discovered during the June 2013

cesarean section, originated from a teratoma on her left ovary that ruptured in May 2013. Plaintiff

brought suit against various defendants including physicians who treated Marilyn before and

during her pregnancy. The case went to a jury trial against Michael, an obstetrician-gynecologist

involved in her treatment; Suburban, Michael’s medical practice; Chung, the radiologist who

interpreted Marilyn’s ultrasound when she came into St. Alexius’s emergency room on August 11,

2012; and St. Alexius under an apparent agency theory. The jury returned verdicts in favor of

plaintiff against Michael and Suburban for $25 million. It returned verdicts for Chung and St.

Alexius, finding that Chung was not an apparent agent of St. Alexius. Shortly after trial, the court

dismissed Michael and Suburban from the case with prejudice based on a $1 million settlement.

This appeal thus concerns only the verdicts and the rulings regarding Chung and St. Alexius.

¶7 A. Teratoma

¶8 Various experts testified about teratomas, which arise in ovaries and can contain such

matter as fat, teeth, hair, or eyeballs. When a teratoma increases in size, it can cause the ovary to

twist and thus compromise the ovary’s blood supply. The risk of a teratoma rupturing, spilling its

contents into the pelvis and abdomen, also increases as the mass gets larger. A mature teratoma is

generally benign but with a 0.2 to 2% chance of transforming into a malignant teratoma.

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¶9 A computed tomography (CT) scan is considered one of the best radiological methods to

diagnose a teratoma and is superior to an ultrasound for that purpose. A CT scan has much better

sensitivity and provides a better picture and more detail than an ultrasound. Air or matter in a

person’s bowel can obscure sound waves and make it difficult to identify structures and visualize

a teratoma on an ultrasound.

¶ 10 B. Overview of Timeline

¶ 11 Michael, Marilyn’s primary obstetrician-gynecologist, referred her in September 2011 to

Dr. Vishvanath Karande, an obstetrician-gynecologist and fertility specialist, for fertility treatment

and in vitro fertilization.

¶ 12 On August 11, 2012, Marilyn went to the St. Alexius emergency room with pelvic pain,

and emergency room physician Dr. Al Sarraj ordered a CT scan and ultrasound. Dr. Gregory Gullo

read the CT scan and reported a teratoma on Marilyn’s left ovary. Chung interpreted the ultrasound

and reported that Marilyn’s ovaries were “unremarkable” and there was “[n]o adnexal mass seen.”

Chung did not refer to the CT report or a teratoma in his report.

¶ 13 Michael saw Marilyn five days after her emergency room visit and reviewed the CT report,

which identified the teratoma, and the ultrasound report, which did not refer to a teratoma. Michael

concluded that Marilyn did not have a teratoma. Marilyn proceeded with in vitro fertilization

treatments and became pregnant with twins after Karande implanted embryos in December 2012.

¶ 14 On March 8, 2013, Marilyn went to St. Alexius for abdominal pain and had an

appendectomy after showing symptoms consistent with appendicitis. On March 13, 2013, she was

admitted to St. Alexius for the same abdominal pain. A CT scan of Marilyn’s pelvis taken that day

showed she had a teratoma. Additional pregnancy ultrasounds, looking at the same area as a pelvic

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ultrasound, were taken in March 2013 and the physicians interpreting these ultrasounds did not

identify the teratoma on the ultrasounds.

¶ 15 On May 3, 2013, Marilyn was admitted to St. Alexius for acute onset abdominal pain.

Plaintiff’s expert Dr. Marcela Guadalupe DelCarmen testified that the teratoma had ruptured at

that time, causing the contents of the teratoma to leak. That leakage in turn caused Marilyn

“stabbing abdominal pain” and tenderness and caused metastatic cancer to spread. During

Marilyn’s caesarian section on June 21, 2013, the ruptured teratoma was removed. On January 15,

2014, Marilyn died as a result of metastatic cancer from the teratoma.

¶ 16 C. Emergency Room Consent Form

¶ 17 On August 11, 2012, Marilyn’s husband, Jesse, took her to the St. Alexius emergency room

because she had severe pelvic pain. They chose St. Alexius as it was near their home, had a “very

good reputation,” and “was like a one-stop shop, *** any service you need was available there.”

They had gone to St. Alexius’s emergency room about a year earlier due to the flu.

¶ 18 Jesse testified about the circumstances around Marilyn’s execution of the consent form

during the visit. As Marilyn was in the examination room, a woman came in and told Marilyn that

she had “to sign here, here, here.” The woman did not explain the form and was in the room for

“[n]ot even a minute.” Jesse acknowledged that Marilyn’s signature was on the form, a one-page

document entitled “Consent for Medical Treatment.” The second section on the form contained an

“Authorization to Release Information” section, which stated in the second paragraph:

“INDEPENDENT STATUS OF PHYSICIANS: I recognize that any or all physicians,

residents, or medical students (under the supervision of physicians and/or residents),

who furnish services to me during this admission are INDEPENDENT

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CONTRACTORS and are NOT AGENTS OR EMPLOYEES OF THE HOSPITAL.”

(Emphasis in original.)

Jesse acknowledged that Marilyn had a PhD and was detail-oriented. He could not recall whether

Marilyn expressed any confusion about signing the form. Neither Marilyn nor Jesse met Chung,

had heard of him before that day, or had chosen him to read Marilyn’s ultrasound.

¶ 19 D. CT and Ultrasound Reports of August 11, 2012

¶ 20 Emergency room physician Sarraj ordered a CT scan of Marilyn’s abdomen and pelvis.

Gullo, a general diagnostic radiologist at St. Alexius, reviewed the CT scan and signed his report

at 2:29 p.m. He reported that the CT scan showed that Marilyn had multiple fibroids and a teratoma

above the uterus about the size of a softball, 7 by 6.3 centimeters.

¶ 21 Sarraj ordered an ultrasound of Marilyn’s pelvis due to her pelvic pain. Plaintiff’s expert

DelCarmen testified that Sarraj’s deposition testimony showed he ordered the ultrasound “not to

confirm the teratoma” but “to determine whether there was appropriate blood flow” to the ovaries

to check they were not twisted, which would require emergency surgery. Plaintiff’s expert Dr.

Richard Gore also testified that Sarraj ordered the ultrasound to examine blood flow to the ovary.

¶ 22 Chung interpreted the ultrasound images and signed his report at 4:56 p.m. Chung reported

that Marilyn had five fibroids, the left ovary was “unremarkable,” there was “[n]o adnexal mass

seen,” and the ultrasound confirmed that there was adequate blood flow to both ovaries. Chung’s

report stated “Comparison: None,” meaning that he did not conduct any comparison examinations.

¶ 23 Sarraj told Jesse and Marilyn that Marilyn had a teratoma that should be removed. He

initially wanted to admit her to the hospital but ultimately discharged her with instructions to

follow up with Michael.

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¶ 24 E. Karande’s Testimony

¶ 25 Marilyn began seeing Karande in October 2011 for fertility treatments and was implanted

with embryos in December 2012. Under Karande’s care, Marilyn’s ovaries were always normal,

including at the time of implantation. Karande never had a reason to think that Marilyn had a

teratoma. Had Karande known she had a teratoma larger than two centimeters, he would not have

proceeded with in vitro fertilization but would have sent her to Michael for further evaluation.

¶ 26 F. Michael’s Testimony

¶ 27 Michael was Marilyn’s obstetrician and saw her on August 16, 2012, five days after her

emergency room visit. Michael had the August 11 CT report that showed a fat density pattern

consistent with a teratoma and the August 11 ultrasound report that indicated Marilyn’s ovaries

were normal. Michael concluded that Marilyn’s ovaries were normal because the ultrasound report

indicated “normal ovaries.” Based on Chung’s ultrasound report, Michael concluded that Marilyn

did not have a teratoma, as teratomas come from ovaries and she could not have a normal ovary

with a teratoma. Relying on Chung’s report, Michael told Marilyn that she did not need surgery to

remove a teratoma and could continue with in vitro fertilization.

¶ 28 Michael did not think there was a discrepancy between the CT and ultrasound reports

because the calcium and fat pattern description of a teratoma, as indicated in the CT report, could

also be consistent with fibroids. Michael did not communicate with Chung or Gullo. In August

2012, Michael knew that a CT test was a more definitive test than an ultrasound to diagnose a

teratoma. If a patient had a seven-centimeter teratoma and wanted to get pregnant, the standard of

care required Michael to recommend removing the teratoma.

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¶ 29 G. Chung’s Testimony

¶ 30 Chung testified that he was a board-certified diagnostic radiologist who was a partner at,

and employed by, Midsuburban Radiological Associates, LLC. He was not an employee of St.

Alexius. St. Alexius gave him privileges to work in its radiology department—he was on the

medical staff and permitted to practice his specialty there—and St. Alexius could revoke his

privileges. Chung testified that St. Alexius did not hire him, could not fire him, and did not control

his practice. He had to adhere to a work rotation rather than working when he pleased. He was

required to use his own medical judgment. St. Alexius supplied Chung’s workspace; all equipment

including computers, furniture, and radiology equipment; and the scans he interpreted.

¶ 31 On August 11, 2012, St. Alexius assigned Chung to review Marilyn’s pelvic ultrasound.

He never met Marilyn or Jesse, and his ultrasound interpretation was his only involvement with

Marilyn. He reviewed about 100 different studies on that day and had no independent memory of

Marilyn’s case, so he testified based on his general memory of his custom and practice.

¶ 32 Sarraj ordered the ultrasound for Marilyn because she had pelvic pain. Chung looked at

Marilyn’s ultrasound images to determine whether there was consistent blood flow to both ovaries.

Chung’s ultrasound report indicated “left ovary unremarkable” and that Marilyn had five fibroids.

He indicated “Comparison: None,” meaning that he did not look at a comparison examination.

Chung could not remember whether he looked at that day’s CT scan when he interpreted Marilyn’s

ultrasound. If he had reviewed the CT report, he would have documented it in his ultrasound report.

He did not see any signs of a teratoma on Marilyn’s August 11 ultrasound.

¶ 33 Chung knew that other physicians treating Marilyn would rely on his report. On the day of

trial, he still did not think his report was wrong. He did not see an ovarian mass, and there was

clear evidence that Marilyn had multiple fibroids. He testified that the standard of care for a

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radiologist was to compare relevant exams, in this case, other pelvic ultrasounds. If he “had any

questions or needed more information or both, then I think the standard would require me to look

beyond that into other modalities or other examinations as well.” He did not have any questions

with Marilyn’s ultrasound report that would have caused him to look to a CT scan for comparison.

¶ 34 Chung also testified that if he had been aware of the CT scan, it would have been his custom

and practice to review it as part of his ultrasound interpretation. Plaintiff’s counsel played a video

of Chung’s deposition testimony with the following colloquy:

“Q. So when you were looking at these images of this ultrasound, were you doing so

with the teratoma in mind that you knew was identified on the CT from two hours

earlier?

A. Well, to answer the question, yes, but that’s not the only thing I’d be concerned

about or looking at or trying to evaluate.”

¶ 35 St. Alexius had a computerized record system that allowed Chung to access the CT and

ultrasound images. When Chung reviewed an ultrasound in the system, previous ultrasound

examinations automatically populated. While other comparison studies such as a CT scan did not

automatically populate, he could search the system to find them. However, Chung had no reason

to search the system for other comparison studies. He had the technologist’s worksheet when he

reviewed the ultrasound, using it to obtain Marilyn’s clinical history and the reason for the

examination, but it did not show that a CT scan had been performed that day.

¶ 36 At trial, Chung identified an “order form” or “requisition form” that the technologist

received from the emergency room physician. The form showed previous examinations performed

on Marilyn, including the August 11 CT scan. However, Chung did not look at this document or

use it when he interpreted the images. Based on his background and experience, it was his opinion

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that his interpretation of the August 11, 2012, ultrasound complied with the standard of care. The

ultrasound interpretation and report did not negate the findings of the CT scan.

¶ 37 H. Expert Testimony

¶ 38 1. Gore

¶ 39 Gore, a diagnostic radiologist and medical school professor, testified as an expert for

plaintiff regarding the standard of care for Chung’s ultrasound interpretation of August 11, 2012.

The CT report and images from that day showed that Marilyn had a 7 by 6.3 centimeter sized

teratoma. Gore identified the teratoma in the August 11 ultrasound without having the CT report

and did not see a normal left ovary in the ultrasound images. He also testified that he knew “what

the mass is because I do have the CT.”

¶ 40 Gore testified that the standard of care required Chung to review the CT images next to the

ultrasound images. Gore was an ACR fellow, and the ACR practice guideline for communication

of diagnostic imaging findings supported his opinions regarding the standard of care. The guideline

provided that, when there is a previous exam of the same body part, the radiologist should compare

the “current exam with the older exam if it’s available and the same body part.” The ACR guideline

stated that it was not intended to establish a legal standard of care and cautioned against its use in

litigation but also suggested that a radiologist taking a substantially different approach from the

guideline explain or document why in the medical record. Gore considered the guideline “a good,

safe, prudent standard medical practice, radiology practice.”

¶ 41 Chung had testified in his deposition that it was his custom and practice, as well as the

standard of care, to look at prior examinations of the same body part. Gore testified that Chung

violated the standard of care by not mentioning the teratoma identified on the August 11 CT report

as a comparison study in his ultrasound report and by describing both ovaries as unremarkable in

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his report. If Chung had been aware of the CT showing the teratoma, he should have stated so in

his ultrasound report. If he did not review the CT, he should have found the CT report and included

it in his ultrasound report.

¶ 42 When Chung was preparing his August 11 ultrasound report, the CT scan performed earlier

that day did not automatically populate in the system to show that it had been performed, but the

requisition form in the system showed that the CT scan was available for a comparison study. Gore

acknowledged that the teratoma diagnosis on the CT report remained valid regardless of Chung’s

ultrasound report. He also acknowledged that ultrasound reports prepared by other physicians in

March 2013 did not indicate that Marilyn had a large ovarian teratoma. The first time any physician

described a problem with Marilyn’s left ovary based on an ultrasound was on April 15, 2013.

¶ 43 2. Dr. Davide Bova

¶ 44 Dr. Davide Bova, a board-certified radiologist and former head of the Chicago

Radiological Society, testified as an expert for St. Alexius and Chung. It was Bova’s opinion that

Chung complied with the standard of care when he interpreted and reported on the August 11,

2012, ultrasound images. Bova agreed with Chung’s ultrasound report findings and testified that,

from his review of the ultrasound images, there was evidence of an unremarkable left ovary and

that there was no adnexal mass, teratoma, or any significant ovarian mass. Chung complied with

the standard of care when he did not compare the CT scan with the ultrasound because they look

at different structures and diseases. There were “no elements” in the ultrasound images that would

have prompted Chung to look for another study, and there was no reason for Chung to reference

the CT or teratoma in his ultrasound report.

¶ 45 Plaintiff’s counsel examined Bova regarding Chung’s deposition testimony. Chung had

testified that his “standard practice would be to look at the CT examination in conjunction with

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the ultrasound” and he did not report the teratoma in his ultrasound report because it would have

been redundant. Plaintiff’s counsel also asked Bova about Chung’s initial Rule 213(f) disclosure:

“Q. Fourth paragraph: ‘Dr. Chung will further testify that based on his custom and

practice, he would have reviewed the CT scan and reports from August 11, 2012, and

would have been aware of Dr. Gullo’s finding of the teratoma. Further, he will testify

that it was also his custom and practice to compare the ultrasound to the CT at that

time. He will testify that even though the report states there was no comparison, it was

his custom and practice to compare the films and likely did so in 2012.’ Did I read that

correctly?

A. Yes, sir.”

¶ 46 During Bova’s testimony, he used a PowerPoint exhibit that included sagittal or side view

images he reconstructed from the CT images taken on August 11, 2012. To create the new images,

Bova used a software program that was “freeware downloadable from the internet.” Chung did not

have the sagittal images when he interpreted the ultrasound images on August 11, 2012. Plaintiff’s

counsel objected to Bova’s use of the sagittal images based on Rule 213(f), noting that they were

not disclosed to plaintiff until the morning of Bova’s testimony. The court overruled plaintiff’s

objection, finding that they were being used as demonstrative exhibits. Using one of the sagittal

images, Bova testified that the teratoma was located “immediately above the field of view” of the

ultrasound images. The teratoma “was big enough that it pushed itself outside of the pelvis, and,

therefore, was never in the field of view.” In every ultrasound taken from October 2011 to April

2013, Bova did not see a teratoma, as it was always outside the field of view.

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¶ 47 3. DelCarmen

¶ 48 DelCarmen, a professor and board-certified physician in obstetrics, gynecology, and

gynecologic oncology, testified as an expert for plaintiff. The August 11, 2012, CT report showed

that Marilyn had a 7 by 6.3 centimeter teratoma on her left ovary. Given the size of the teratoma,

Marilyn probably had it for years. An ovary with a “tennis-sized” ball teratoma attached was not

normal or “unremarkable.” On cross-examination, DelCarmen acknowledged that, even with a

growing teratoma, the ovary could be documented as “normal” on an ultrasound.

¶ 49 According to DelCarmen’s review of the record, Michael relied on Chung’s ultrasound

report in concluding that Marilyn did not have a teratoma. DelCarmen testified that Michael’s

reliance was a proximate cause of Marilyn developing metastatic cancer; if the teratoma had been

removed in August 2012, she would not have developed cancer. Asked how a seven-centimeter

teratoma could attach to a two-centimeter ovary, DelCarmen explained that an ovary expands

when there is a growth on it. “You can blow a bubble but still have a little bit of gum left in your

mouth. *** so normal ovary, and then an expansion essentially around it of also ovarian tissue that

forms the cyst, but still have a part of that ovary that looks normal on either visual inspection or

by imaging.” The August 11 ultrasound did not negate the finding of the teratoma on the CT scan.

¶ 50 4. Dr. Yvonne Gomez-Carrion

¶ 51 Dr. Yvonne Gomez-Carrion, a physician board-certified in obstetrics and gynecology,

testified as an expert for plaintiff. She reviewed the August 11 CT report and identified a 7 by 6.3

centimeter teratoma on Marilyn’s left ovary. Gomez-Carrion reviewed the August 11 ultrasound

report and could “not clearly” identify a left ovary. She testified that Michael violated the standard

of care by failing to, by contacting a radiologist or in some other manner, resolve the difference

between the August 11 CT report identifying a seven-centimeter teratoma and the August 11

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ultrasound report that Marilyn had “normal ovaries.” She testified that Michael also violated the

standard of care by failing to inform Karande that the CT report showed Marilyn had a teratoma.

Michael’s violations of the standard of care were proximate causes of Marilyn’s death.

¶ 52 5. Dr. Linda Holt

¶ 53 Dr. Linda Holt, a physician specializing in obstetrics and gynecology, testified as an expert

for Michael. An ultrasound is “considered the first line evaluation and the standard evaluation for

imaging ovaries.” She testified that Michael complied with the standard of care. It was appropriate

for him to rely on the CT and ultrasound reports and to conclude that Marilyn did not have a

teratoma on August 16, 2012, because a teratoma would have made “the ovaries look abnormal.”

¶ 54 I. Jury Instructions

¶ 55 Illinois Pattern Jury Instructions, Civil, No. 105.10 (2011) (hereinafter IPI Civil No.

105.10) is the burden of proof instruction for claims based on apparent agency. Plaintiff submitted

a modified jury instruction to add the words “or agent” to the IPI Civil No. 105.10 pattern

instruction:

“First, that St. Alexius held itself out as a provider of complete radiology care and that

Marilyn Perez neither knew nor should have known that Dr. Chung was not an employee

or agent of St. Alexius.” (Emphasis added.)

The court refused plaintiff’s modified instruction and gave unmodified IPI Civil No. 105.10 to the

jury:

“First, that St. Alexius Medical Center held itself out as a provider of radiological care

and that Marilyn Perez neither knew or nor should have known that Dr. Jeffrey Chung,

M.D. was not an employee of St. Alexius Medical Center.”

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The trial court also refused plaintiff’s request to give IPI Civil No. 50.10, entitled “Agent or

Independent Contractor.”

¶ 56 J. Verdicts and Posttrial Motions

¶ 57 The jury returned a verdict in favor of plaintiff against Michael and Suburban for $25

million. The jury returned a verdict in favor of defendants Chung and St. Alexius against plaintiff,

expressly finding that Chung was not the apparent agent of St. Alexius. After trial, pursuant to a

settlement for $1 million, the court dismissed Michael and Suburban as defendants with prejudice.

¶ 58 The court denied plaintiff’s posttrial motion and his motion to amend his posttrial motion.

The court also struck plaintiff’s “Verified Local Rule 23.9 Petition to Issue Rule to Show Cause”

against Chung. The allegation that plaintiff raised in his contempt petition and wanted to add to

his posttrial motion was that Chung committed perjury because his testimony in another case

(Estate of Newberry v. Iza, No. 14 L 7734 (Cir. Ct. Cook County)), after the trial herein, regarding

his use of St. Alexius’s “requisition forms” completely contradicted his testimony here.

Specifically, Chung allegedly testified in the other case that, in interpreting ultrasounds, he

reviewed the requisition forms referencing the patient’s previous examinations, while in this case

he testified that he never looked at the form when interpreting ultrasound images. This appeal

followed.

¶ 59 III. ANALYSIS

¶ 60 On appeal, plaintiff contends that the jury’s finding that Chung was not the apparent agent

of St. Alexius was against the manifest weight of the evidence. He contends that the trial court

erred by refusing to give his modified jury instruction IPI Civil No. 105.10 and IPI Civil No. 50.10.

He contends that the court erred by barring him from using Chung’s Rule 213(f) disclosure, by

barring him from examining Chung with the ACR practice guideline, and by allowing Bova to use

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certain images during his testimony even though defendants did not disclose them until the

morning of Bova’s testimony. Plaintiff also contends that the cumulative effects of the court’s

errors denied him a fair trial and warrants a new trial against both defendants. Lastly, he contends

that the court erred by striking his petition for adjudication of criminal contempt against Chung

and by denying his motion to amend his posttrial motion to include his perjury allegation.

Defendants contend that the two-issue rule precludes plaintiff from establishing reversible error.

We shall address these contentions in a different order than just described.

¶ 61 A. Chung’s Rule 213(f)(3) Disclosure

¶ 62 Plaintiff contends that the trial court erred by barring him from using Chung’s Rule

213(f)(3) disclosure against defendants. He asserts that Chung’s Rule 213(f)(3) disclosure is an

evidentiary admission under Illinois Supreme Court Rule 213(h) (eff. Jan. 1, 2018), Illinois

Supreme Court Rule 212(a)(2) (eff. Jan. 1, 2011), and Illinois Rule of Evidence 801(d)(2) (eff.

Oct. 15, 2015). Plaintiff claims that, by barring him from using Chung’s Rule 213(f)(3) disclosure,

the court prevented him from undermining defendants’ defense at trial.

¶ 63 Chung filed his initial answer to plaintiff’s Rule 213(f)(3) interrogatories, which his

counsel signed, in January 2017. The initial disclosure stated in relevant part:

“Dr. Chung will further testify that based on his custom and practice, he would have

reviewed the CT scan and reports from August 11, 2012, and would have been aware of

Dr. Gullo’s finding of the teratoma. Further, he will testify that it was also his custom and

practice to compare the ultrasound to the CT scan at that time. He will testify that even

though the report states there was no comparison, it was his custom and practice to compare

the films, and likely did so in 2012.”

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In August 2017, Chung filed updated answers to plaintiff’s Rule 213(f)(3) interrogatories, which

his counsel signed. The updated disclosure stated in relevant part:

“Dr. Chung will further testify that based on his custom and practice, he reviews

relevant CT scans and reports when interpreting ultrasound imaging. Further, he will testify

that it was also his custom and practice to compare the ultrasound to the CT if there was a

question or difficulty in interpreting the ultrasound, which was not the case on the August

11, 2012 ultrasound.”

Plaintiff claims that defendants argued at trial that Chung did not know about the teratoma when

he reviewed the ultrasound and that barring plaintiff’s use of Chung’s Rule 213(f)(3) disclosure

allowed defendants to hide from the jury Chung’s admission in his disclosure that he had been

aware of the teratoma when he reviewed the ultrasound.

¶ 64 As an initial matter, defendants assert that plaintiff forfeited the issue by failing to submit

an offer of proof. “The purpose of an offer of proof is to disclose the nature of the offered evidence

to which objection is interposed, for the information of the trial judge and opposing counsel, and

to enable the reviewing court to determine whether the exclusion was erroneous and harmful.”

Sekerez v. Rush University Medical Center, 2011 IL App (1st) 090889, ¶ 68. Generally, an offer

of proof is required to preserve for review a question as to whether the court properly excluded

evidence, but an offer of proof may not be necessary if the record clearly shows that the trial court

already had all of the evidence it needed to make an assessment regarding admissibility and

possible prejudice from exclusion. Id. We find that plaintiff did not forfeit this contention for lack

of an offer of proof because we find that on this record that the trial court had all the evidence it

needed to make its evidentiary ruling.

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¶ 65 Rule 213(f)(3) concerns a party’s answer to written interrogatories regarding, as relevant

here, “a person giving expert testimony who is the party, the party’s current employee, or the

party’s retained expert.” Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018). Illinois Supreme Court Rule

213(h) (eff. Jan. 1, 2018), provides that “[a]nswers to interrogatories may be used in evidence to

the same extent as a discovery deposition.” In turn, Rule 212(a) provided at all relevant times that

a discovery deposition can be used as impeachment and “as an admission made by a party or by

an officer or agent of a party in the same manner and to the same extent as any other admission

made by that person.” Ill. S. Ct. R. 212(a)(1), (2) (eff. Jan. 1, 2011). Illinois Rule of Evidence

801(d)(2) establishes that hearsay does not include a statement offered against a party when it is

the party’s own statement or “a statement by a person authorized by the party to make a statement

concerning the subject.” Ill. R. Evid. 801(d)(2)(A), (C) (eff. Oct. 15, 2015).

¶ 66 Admitting evidence under Rule 213 is a matter for the trial court’s discretion and its ruling

will not be disturbed absent an abuse of discretion. Sullivan v. Edward Hospital, 209 Ill. 2d 100,

109 (2004). This court held in York v. El-Ganzouri, 353 Ill. App. 3d 1, 18 (2004), that when an

attorney signs an interrogatory answer under Rule 213(f), rather than the expert disclosed in the

answer, the answer can nonetheless be used as impeachment.

“That the interrogatory answers may have been completed and signed by an attorney,

as opposed to the expert, in our view, cannot justify modification of the plain meaning of

the rule allowing impeachment. Courts have long understood that the answers to Rule 213

interrogatories surrounding experts are a collaboration between the expert and the retaining

party.” Id.

¶ 67 Here, the record shows that plaintiff’s counsel wanted to use Chung’s Rule 213(f)(3)

disclosure as an evidentiary admission or alternatively as impeachment. The court and parties

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No. 1-18-1887

discussed whether Chung’s Rule 213(f)(3) disclosure could be used as an evidentiary admission

multiple times during Chung’s testimony. The court found that because the issue involved a party

expert’s Rule 213(f)(3) disclosure signed by the party’s attorney as opposed to a nonparty expert

disclosure signed by an attorney, the issue was different and the court was concerned about waiving

the attorney client privilege. In one sidebar discussion, the court stated:

“You know where I see the difference? If an expert did it, a retained expert, you

can cross-examine the expert on the conversation that the expert had with the attorney

because there’s no privilege there. Were these the opinions that he gave? Did you talk to

your attorney about these opinions? For an expert, that’s where I see that that would be an

appropriate line of questioning. *** But for the defendant, I’m not sure that I’m

comfortable with you getting into any discussions that may have occurred between the

attorney and the client.”

¶ 68 However, we consider it key that Rule 213(f)(3) does not distinguish between “the party,

the party’s current employee, or the party’s retained expert.” See Ill. S. Ct. R. 213(f)(3) (eff. Jan.

1, 2018). All are controlled expert witnesses so long as they are giving expert testimony, and Rule

213(f)(3) requires that “[f]or each controlled expert witness, the party must identify: (i) the subject

matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the

bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness

about the case.” Id. In short, Rule 213(f)(3) does not support the distinction made by the trial court

in allowing the use of Chung’s disclosure of his intended testimony in examining expert witnesses

but not Chung himself. We find York persuasive; if a party’s retained expert can be impeached

with a disclosure by the party’s attorney, as York holds, it is not a leap of law or logic to hold a

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No. 1-18-1887

disclosure by the party’s attorney against the party himself. The Rule 213(f)(3) disclosure on behalf

of Chung as a defendant stated what Chung himself would testify to as a witness.

¶ 69 With all that in mind, we consider it an absurd result to hold as the trial court did that

Chung’s expert witness could be confronted with the disclosure but Chung could not. Due to an

earnest but excessive concern over attorney-client privilege, the trial court allowed the possibility

that Chung would attribute the inconsistency to his attorney to deprive plaintiff of the ability to

have Chung himself explain the inconsistency between the discovery disclosure as Chung’s

statements and Chung’s own trial testimony.

¶ 70 As to prejudice, the trial court did allow plaintiff to use Chung’s Rule 213(f)(3) disclosure

for some purposes during the trial. Plaintiff’s counsel read Chung’s disclosure verbatim during the

testimony of defendants’ experts and referred to it during closing argument:

“Those were his 213 disclosures after his deposition. Custom and practice, he would

have reviewed the CT scan and reports from August 11, 2012, and would have been aware

of Dr. Gullo’s findings of the teratoma. It was also his custom and practice to compare the

ultrasound to the CT at that time.”

Also, during Chung’s testimony, the court permitted plaintiff’s counsel to play a video of Chung’s

discovery deposition testimony in which he admitted knowing about the teratoma when he was

reviewing the ultrasound. The following colloquy from Chung’s discovery deposition was played

at trial during Chung’s testimony:

“Q. So when you were looking at these images of this ultrasound, were you doing so

with the teratoma in mind that you knew was identified on the CT from two hours earlier?

A. Well, to answer the question, yes, but that’s not the only thing I’d be concerned

about or looking at or trying to evaluate.”

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No. 1-18-1887

¶ 71 However, we find prejudicial error in not allowing plaintiff to confront Chung in cross-

examination with his Rule 213(f)(3) discovery disclosure. Chung disclosed before trial that he

would have reviewed the CT scan and reports from August 11, 2012, would have been aware of

the teratoma finding from the CT scan, and it was his custom and practice to compare the

ultrasound to the CT scan even if his report stated otherwise. Plaintiff should have been able to

confront Chung with the stark contrast between that statement and his trial testimony, not only as

impeachment of Chung’s credibility but as Chung’s admission tending to show his awareness of

the teratoma finding from the CT scan and his awareness that not comparing the CT scan and

ultrasound was not proper care. Similarly, while Chung was confronted with his deposition

testimony obliquely admitting that he was aware of the teratoma finding when he read the

ultrasound, we find that evidence does not have the same effect as confronting Chung with the full

impact of the discovery response at issue: that he would have reviewed the CT scan and report,

would have been aware of the teratoma finding from the CT scan and report, and would have

compared the ultrasound to the CT scan even if his report stated otherwise.

¶ 72 In sum, we find that the trial court erred by not allowing Chung’s Rule 213(f)(3) discovery

disclosure to be used in cross-examining Chung at trial and that plaintiff was prejudiced thereby.

¶ 73 B. ACR Practice Guideline

¶ 74 Plaintiff contends that the trial court erred by barring him from examining Chung about the

ACR practice guideline that, if there is a prior exam of the same body part, a radiologist should

compare the current exam with the prior exam if it is available.

¶ 75 Defendants respond that plaintiff forfeited the issue by failing to make an offer of proof.

Based on our review of the record, we find the issue was not forfeited because the court had the

information it needed to make its decision on whether to allow the testimony. See Sekerez, 2011

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IL App (1st) 090889, ¶ 68. Plaintiff’s expert Gore testified about the guideline before Chung’s

testimony. Thus, when the court had to decide whether to allow testimony about the guideline

during Chung’s cross-exanimation, the court had already heard testimony from Gore about the

guideline and its standard of care. Also, when defendants objected during Chung’s cross-

examination about the guideline, the parties discussed the guideline and what plaintiff’s counsel

believed Chung’s testimony would be, stating: “Our expert says that it supports his opinion of the

standard of care. And I bet this witness is going to say the exact same thing, that he agrees with

these principles and I mean—He will say that they support his opinion of the standard of care.”

¶ 76 Decisions on the admission of evidence will not be disturbed absent an abuse of discretion.

Fragogiannis v. Sisters of St. Francis Health Services, Inc., 2015 IL App (1st) 141788, ¶ 27.

“A learned text can be used for impeachment on cross-examination in any of the following

three circumstances: (1) the trial court takes judicial notice of the author’s competence;

(2) the witness concedes the author’s competence; or (3) the cross-examiner proves the

author’s competence by a witness with expertise in the subject matter.” Id.

If a publication is established as authoritative, an expert who does not recognize the publication

may nonetheless be cross-examined with it. Iaccino v. Anderson, 406 Ill. App. 3d 397, 408 (2010).

¶ 77 Here, the trial court placed great weight on the fact that Chung was not a member of the

ACR and was unfamiliar with the guideline. However, as stated above, an expert witness can be

cross-examined with an authoritative text he is not previously familiar with. While the guideline’s

preamble stated it was not intended to establish a legal standard of care and cautioned against using

the guideline in litigation, plaintiff’s expert Gore, familiar with the guideline, testified that it

supported his opinions on standard of care and was “a good, safe, prudent standard *** radiology

practice.” We find that plaintiff proved the guideline’s competence or authoritativeness with the

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No. 1-18-1887

testimony of an expert witness familiar with the guideline so that plaintiff should have been

allowed to cross-examine Chung regarding the guideline.

¶ 78 As to prejudice, we find that the court’s ruling barred plaintiff from asking Chung what he

thought of the guideline and to explain his decisions in light of the guideline. It is true that the jury

heard about the content of the guideline from Gore’s testimony:

“The guideline says that if you’ve got an old exam of the same body part, you know, it’s

your duty to the patient to compare your current exam with the older exam if it’s available

and the same body part. And that’s just good medical practice, you know, irrespective of

what this guideline says.”

However, plaintiff was not allowed to confront Chung himself with the guideline to attempt to

elicit an admission from Chung that the guideline described good medical practice and an

explanation of his decisions compared to the guideline. We conclude that the trial court abused its

discretion and committed reversible error by not allowing plaintiff’s counsel to cross-examine

Chung about the ACR guideline.

¶ 79 C. Apparent Agency Instruction

¶ 80 Plaintiff also contends that the trial court did not properly instruct the jury regarding

apparent agency. Plaintiff contends that the court erred by refusing to give his modified version of

IPI Civil No. 105.10, arguing that IPI Civil No. 105.10 as it stood at the time of trial did not

accurately state the law regarding a plaintiff’s burden of proof on apparent agency because it

referenced only employees and not agents generally.

¶ 81 Under the doctrine of apparent agency, when a physician is not an employee of the hospital

but is an independent contractor, a hospital may be held liable for a physician’s negligence. York

v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 179 (2006). For a hospital to be

23
No. 1-18-1887

liable under the apparent agency theory, a plaintiff must prove that (1) the hospital, or its agent,

acted in a manner that would lead a reasonable person to conclude that the alleged negligent

physician was an employee or agent of the hospital; (2) the acts of the agent created the appearance

of authority and “the plaintiff must also prove that the hospital had knowledge of and acquiesced

in them”; and (3) “the plaintiff acted in reliance upon the conduct of the hospital or its agent.”

(Internal quotation marks omitted.) Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 525

(1993).

¶ 82 The first two elements of apparent agency are collectively called the holding out factor.

Mizyed v. Palos Community Hospital, 2016 IL App (1st) 142790, ¶ 39. Under the holding out

factor, “[i]f a patient knows, or should have known, that the treating physician is an independent

contractor, then the hospital will not be liable.” Gilbert, 156 Ill. 2d at 522-23. Thus, “if a patient

is placed on notice of the independent status of the medical professionals with whom he or she

might be expected to come into contact, it would be unreasonable for a patient to assume that these

individuals are employed by the hospital.” York, 222 Ill. 2d at 202. An important consideration in

evaluating the holding out factor is whether a patient signed a consent form with unambiguous

independent status disclaimer language, “ ‘because it is unlikely that a patient who signs such a

form can reasonably believe that [his] treating physician is an employee or agent of a hospital

when the form contains specific language to the contrary.’ ” Mizyed, 2016 IL App (1st) 142790,

¶ 40 (quoting Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st) 101558, ¶ 27).

¶ 83 The holding out factor does not require an express representation by the hospital that the

person alleged to be negligent is an employee or agent but only that the hospital holds itself out as

a provider of emergency room care without informing the patient that the care is provided by

independent contractors. Gilbert, 156 Ill. 2d at 525. Similarly, the third element of justifiable

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No. 1-18-1887

reliance is satisfied by showing reliance upon the hospital, rather than a specific physician, to

provide medical care. Id.

“ ‘[T]he critical distinction is whether the plaintiff is seeking care from the hospital itself

or whether the plaintiff is looking to the hospital merely as a place for his or her personal

physician to provide medical care. Except for one who seeks care from a specific physician,

if a person voluntarily enters a hospital without objecting to his or her admission to the

hospital, then that person is seeking care from the hospital itself. An individual who seeks

care from a hospital itself, as opposed to care from his or her personal physician, accepts

care from the hospital in reliance upon the fact that complete emergency room care—from

blood testing to radiological readings to the endless medical support services—will be

provided by the hospital through its staff.’ ” (Emphasis added.) Id. at 525-26 (quoting

Pamperin v. Trinity Memorial Hospital, 423 N.W.2d 848, 857 (Wis. 1988)).

¶ 84 IPI Civil No. 105.10 is entitled “Claims Based On Apparent Agency—Both Principal And

Agent Sued—Principal Sued Under Respondeat Superior Only—Medical Malpractice Actions—

Reliance On Principal Alleged.” In other words, IPI Civil No. 105.10 is the burden of proof

instruction for claims based on apparent agency. Our supreme court has stated that a “trial court is

required to use an Illinois Pattern Jury Instruction when it is applicable in a civil case after giving

due consideration to the facts and the prevailing law, unless the court determines that the

instruction does not accurately state the law.” Schultz v. Northeast Illinois Regional Commuter

R.R. Corp., 201 Ill. 2d 260, 273 (2002). The Illinois Supreme Court Rules likewise provide that,

“[w]henever Illinois Pattern Jury Instructions (IPI), Civil, contains an instruction applicable in a

civil case, giving due consideration to the facts and the prevailing law, and the court determines

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that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court

determines that it does not accurately state the law.” Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013).

¶ 85 The trial court has discretion in determining which instructions to give the jury, and we

will not disturb its decision absent an abuse of discretion. Luye v. Schopper, 348 Ill. App. 3d 767,

773 (2004). “When deciding whether a trial court abused its discretion, a reviewing court will

examine the jury instructions in their entirety, to determine whether they fairly, fully and

comprehensively informed the jury of the relevant law.” LaSalle Bank, N.A. v. C/HCA

Development Corp., 384 Ill. App. 3d 806, 813 (2008). However, when the issue is whether the jury

instructions accurately stated the law, our review is de novo. Doe v. Bridgeforth, 2018 IL App (1st)

170182, ¶ 66. “In either case, ‘[a] reviewing court ordinarily will not reverse a trial court for giving

faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant.’ ”

Id. (quoting Schultz, 201 Ill. 2d at 274).

¶ 86 Here, the jury instruction on apparent agency made no mention of agency but referred

strictly to whether Chung was an employee. While the instruction was based on IPI Civil No.

105.10, it is axiomatic as stated above that pattern instructions may be modified if they do not

accurately state the law. We find that IPI Civil No. 105.10 at the time of trial, and the jury

instruction in this case based upon it, did not accurately state the law. We find persuasive support

for our conclusion in the 2019 revision of IPI Civil No. 105.10 to include the words “agent or”

before the word “employee,” thus rendering it consistent with case law. See Illinois Pattern Jury

Instructions, Civil, No. 105.10 (revised May 2019).

¶ 87 We also find that the instruction at issue was misleading. In a medical malpractice context,

a hospital’s liability is based on whether the patient is placed on notice of the “independent status

of the medical professionals with whom he or she might be expected to come into contact.” York,

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222 Ill. 2d at 202. We find that the consent form presented to Marilyn, in a perfunctory manner

while she was in pain, was ambiguous and inadequate to convey whether Chung was independent

of St. Alexius. The jury, erroneously instructed to focus on whether Marilyn “neither knew nor

should have known that [Chung] was not an employee of St. Alexius,” was likely to give undue

weight to Chung’s testimony that he was not an employee of St. Alexius.

¶ 88 We find the consent form ambiguous or inadequate in two distinct manners. The first is

that the phrasing that “any or all physicians, residents, or medical students *** are NOT AGENTS

OR EMPLOYEES OF THE HOSPITAL” requires some parsing. The construction “any or all X

are not Y” is not the clearest phrasing when contrasted with something unambiguous like “no X is

a Y.” See Hammer v. Barth, 2016 IL App (1st) 143066, ¶¶ 5, 24 (a consent form stating “ ‘I

acknowledge and fully understand that some or all of the physicians who provide medical services

to me at the hospital are not employees or agents of the hospital’ ” was found to be “ambiguous in

that one could assume that some or all or none of the treating physicians are independent

contractors, and that independent physicians may or may not include cardiologists”). Even a detail-

oriented PhD like Marilyn may well have trouble parsing St. Alexius’s language as it intended—

that no physicians at St. Alexius are its agents or employees, rather than that some are not—while

in severe pelvic pain and being told “to sign here, here, here.”

¶ 89 The second flaw is that, assuming arguendo that Marilyn knew that no physician providing

her service at St. Alexius was its employee or agent, it does not follow that she knew that the

service of interpreting scans and tests performed in the St. Alexius emergency room would be

provided by physicians. As recited above, it is unlikely that a patient who signs a release form can

reasonably believe that her treating physicians, with whom she comes in contact, are employees

or agents of the hospital when the form states otherwise. However, a patient may not realize in

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reading and signing such a form that the service of interpreting test results, a radiological reading

as the Gilbert court tellingly stated, was treatment that would be performed by a physician. In other

words, a patient such as Marilyn may not recognize Chung as a treating physician or a physician

who provided her service as the consent form put it. Instead, such a patient may recognize such an

unseen service provider as an anonymous functionary in, as the Gilbert court described, the

medical support services provided as part of the complete emergency care at St. Alexius. The fact

that we and the jury know with hindsight from the entire trial evidence that Marilyn’s ultrasound

was interpreted by physician Chung does not determine what Marilyn knew when she signed the

consent form and medical services were provided to her at St. Alexius.

¶ 90 We find a significant probability that the jury, presented with all the trial evidence and

instructed to focus on whether Marilyn knew or should have known that Chung was not an

employee of St. Alexius, would unduly under weigh what Marilyn knew and the limitations of

what the consent form would inform her and unduly overweigh the evidence that her ultrasound

was interpreted by Chung, a physician, who testified to not being an employee of St. Alexius. In

sum, we find that the failure to modify IPI Civil No. 105.10 as requested by plaintiff was reversible

error.

¶ 91 D. Two-Issue Rule

¶ 92 We have found reversible error on the preceding three contentions. However, defendants

contend that the two-issue rule precludes plaintiff from establishing reversible error. The two-issue

or general verdict rule provides that a general verdict for the plaintiffs or the defendants without

special interrogatories will not be disturbed if the case involved two or more determinative issues,

or two or more theories were presented, and there was sufficient evidence to support at least one

of the issues or theories that was free from prejudicial error. Obermeier v. Northwestern Memorial

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Hospital, 2019 IL App (1st) 170553, ¶ 51; Arient v. Alhaj-Hussein, 2017 IL App (1st) 162369,

¶ 44. Here, defendants contend that the rule applies here because the verdict in favor of Chung

may well have hinged on proximate causation rather than whether Chung breached the standard of

care, while all of plaintiff’s contentions regarding Chung concern standard of care.

¶ 93 Plaintiff responds by correctly noting that the jury was duly instructed to first determine

whether Dr. Chung was negligent before reaching the issue of proximate causation. We find a

significant probability that the errors regarding Chung’s negligence caused the jury to not reach

proximate causation at all. We therefore will not apply the two-issue or general verdict rule here.

¶ 94 E. Manifest Weight of the Evidence

¶ 95 Having found reversible error in the trial here based on the preceding contentions, we are

remanding this case for a new trial against both Chung and St. Alexius. Because of the prejudicial

errors in the trial itself, we need not address plaintiff’s contention that the verdict in favor of St.

Alexius regarding apparent agency was against the manifest weight of the evidence. Our usual

deference to a jury’s verdicts does not extend to a trial with reversible errors such as this one.

¶ 96 F. Actual Agency Instruction

¶ 97 Plaintiff contends that the trial court did not give a jury instruction based on IPI Civil No.

50.10 as he requested. Noting that IPI Civil No. 50.10 defines the words “agent” and “independent

contractor,” he contends that an important issue at trial was whether Chung was an independent

contractor or agent and that the jury needed an instruction defining these terms. We shall address

this contention in detail because it could arise again in a new trial following remand.

¶ 98 St. Alexius responds that plaintiff never pled an actual agency claim, that IPI Civil No.

50.10 is an actual agency instruction, and thus that the court’s refusal to give it was proper. St.

Alexius also argues that plaintiff failed to prove that an actual agency relationship existed. In

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plaintiff’s reply, he does not dispute that he failed to plead a claim based on actual agency or that

he proved that an actual agency relationship existed.

¶ 99 IPI Civil No. 50.10 states:

“The question has been raised whether at the time of the occurrence [alleged agent’s

name] was the agent of the defendant [defendant’s name] or was an independent contractor.

An agent is a person who by agreement with another, called the principal, represents the

principal in dealings with third persons or transacts some other business, manages some

affair, or does some service for the principal, with or without compensation. The agreement

may be oral or written, express or implied. [The term ‘agent’ is broader than either ‘servant’

or ‘employee.’ A servant or employee is an agent, but one may be an agent although he is

neither servant nor employee.]

[If you find that one person has the right to control the actions of another at a given

time, you may find that the relation of principal and agent exists, even though the right to

control may not have been exercised.]

An independent contractor is one who undertakes a specific job where the person

who engages him does not have the right [to discharge him] [or] [to direct and control the

method and manner of doing the work].

In determining whether at the time of the occurrence [alleged agent’s name] was

the agent of the defendant [defendant’s name] or was an independent contractor, you may

also consider [the method of payment;] [the right to discharge;] [the skill required in the

work to be done;] [who provides tools, materials or equipment;] [whether the worker’s

occupation is related to that of the employer;] [whether the employer deducted for

withholding tax;] [and] [other relevant factor(s)].

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The principal is liable to third persons for the negligence of his agent in the

transaction of the business of the principal, if the agent himself is liable. But one who

engages an independent contractor is not liable to others for the negligence of the

contractor.”

¶ 100 We review a trial court’s decision on whether to give a jury instruction under the abuse of

discretion standard. Blockmon v. McClellan, 2019 IL App (1st) 180420, ¶ 41. A court’s refusal to

give an instruction results in a new trial only if the party “shows serious prejudice to the party’s

right to a fair trial.” Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 777 (1998).

¶ 101 Here, plaintiff’s theory against St. Alexius was based on apparent agency, as plaintiff’s

counsel acknowledged at trial. During the discussion on IPI Civil No. 50.10, plaintiff’s counsel

stated: “the count is pled apparent agency, although there are two paragraphs in the count that

makes the allegation ‘agent,’ but it’s an apparent agency count.” As previously discussed, the trial

court gave IPI Civil No. 105.10, the instruction for apparent agency claims. Plaintiff has not cited

any authority to support that IPI Civil No. 50.10, an actual agency instruction as we explain below,

should also be given for claims based on apparent agency.

¶ 102 The first sentence of IPI Civil No. 50.10 sets forth that it is given when a question has been

raised regarding whether the “alleged agent” was an “agent or independent contractor,” as it states:

“The question has been raised whether at the time of the occurrence [alleged agent’s name] was

the agent of the defendant [defendant’s name] or was an independent contractor.” Further, we have

held that IPI Civil No. 50.10 “provides the factors by which a jury can determine whether a

principal-agent relationship existed” (Dahan, 295 Ill. App. 3d at 777), which is the first element

of actual agency (Hammer, 2016 IL App (1st) 143066, ¶ 15). IPI Civil No. 50.10 also instructs a

jury that it may find an agent-principal relationship existed if it finds that “one person has the right

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to control the actions of another at a given time.” However, an apparent agency claim is not based

on whether there was a principal-agent relationship but whether the hospital or alleged agent acted

in a manner to lead a reasonable person to concluded that the physician was an employee or agent

and the acts of the agent created an apparent of authority. See York, 222 Ill. 2d at 179 (setting forth

the elements of an apparent agency claim). Accordingly, IPI Civil No. 50.10 taken as a whole

contains instructions for evaluating claims of actual agency.

¶ 103 As plaintiff did not raise an actual agency claim and IPI Civil No. 50.10 is an actual agency

instruction, we cannot find that the court abused its discretion by refusing to give IPI Civil No.

50.10.

¶ 104 G. Remaining Issues

¶ 105 We shall briefly address the remaining contentions of error. Firstly, because we are

remanding for a new trial, we need not address plaintiff’s contention that a new trial is necessary

because the cumulative effect of the trial errors deprived him of a fair trial.

¶ 106 Secondly, we need not address plaintiff’s contention that the trial court erred by allowing

Bova to rely on undisclosed sagittal CT images during his testimony over plaintiff’s objection that

defendants violated Illinois Supreme Court Rule 237 (eff. Jul. 1, 2005) and Illinois Supreme Court

Rule 213(i) (eff. Jan. 1, 2018). This contention, based on an alleged failure in timely discovery

disclosure, is unlikely to recur in a new trial.

¶ 107 Lastly, plaintiff contends that the trial court erred by striking his contempt petition against

Chung and by denying him leave to amend his posttrial motion.

¶ 108 Plaintiff’s contempt petition and requested amendment to his posttrial motion alleged that

Chung gave inconsistent testimony in this trial and in a subsequent trial in an unrelated case.

Specifically, Chung testified in the May 2018 trial here that he does not “ever look at or use” the

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ultrasound requisition form in interpreting scans, while he allegedly testified in the other trial in

July 2018 that he will “look and see how old the patient is and also what exam is being ordered,

and then, as well, I’ll look at what history is provided.”

¶ 109 Chung responds that plaintiff forfeited this contention because his brief failed to comply

with Illinois Supreme Court Rule 341(h) (eff. May 25, 2018). He argues that plaintiff made

conclusory claims and underdeveloped arguments without citation to relevant authority. The

content and format of appellate briefs are governed by Rule 341(h), providing that an appellant

must “present reasoned argument and citation to legal authority and to specific portions of the

record in support of his claim of error.” McCann v. Dart, 2015 IL App (1st) 141291, ¶ 15. An issue

that is not clearly defined and sufficiently presented, and thus does not satisfy Rule 341(h), is

forfeited. Atlas v. Mayer Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33. Upon reviewing

the briefs, we find that plaintiff has indeed failed to provide reasoned and legally supported

argument regarding his contempt petition against Chung, but we find sufficiently reasoned and

supported argument on the broader question of Chung’s allegedly inconsistent testimony to not

find the broader contention forfeited.

¶ 110 However, while plaintiff has not waived that portion of his contention, the fact that we are

remanding for a new trial means that we need not consider plaintiff’s contention regarding

amending his posttrial motion. We do not address the substance of whether the particular testimony

in this case and the unrelated case are contradictory as alleged, or whether Chung’s testimony in

the unrelated case is admissible here, but leave it for the trial court to decide in the course of

litigation following remand if the issue is presented again.

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No. 1-18-1887

¶ 111 IV. CONCLUSION

¶ 112 Accordingly, the judgment in favor of Chung and St. Alexius is vacated, and this case is

remanded for a new trial regarding both defendants.

¶ 113 Vacated and remanded.

¶ 114 JUSTICE CONNORS, dissenting:

¶ 115 I respectfully dissent. The jury’s finding that Chung was not the apparent agent of St.

Alexius was not against the manifest weight of the evidence. The trial court did not commit

reversible error with respect to its evidentiary rulings.

¶ 116 A. Chung’s Initial Rule 213(f)(3) Disclosure

¶ 117 The trial court did not commit reversible error when it barred plaintiff from using

Chung’s initial Rule 213(f) disclosure during Chung’s testimony.

¶ 118 As an initial matter, I disagree with the majority that plaintiff preserved his argument

despite his failure to make an offer of proof. Plaintiff’s counsel acknowledged at trial that he

needed to make an offer of proof. During a sidebar discussion on the Rule 213(f)(3) issue,

plaintiff’s counsel objected to the court’s refusal to allow Chung to read the initial Rule 213(f)(3)

disclosure during Chung’s cross-examination and then his other counsel stated to the court: “We

might still—I don’t know—at some point need an offer of proof opportunity. Not today. I mean

…” The court responded, “[w]henever you want. Whenever you want.” However, the record does

not show that plaintiff ever made an offer of proof. Further, on appeal, plaintiff does not argue that

he ever made one, and plaintiff’s counsel acknowledged at oral argument that there was no offer

of proof made. Because plaintiff did not make an offer of proof, I find that the issue is forfeited.

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¶ 119 The trial court did not have all the evidence it needed to make its evidentiary ruling

because an offer of proof could have addressed the concerns that the trial court had about waiving

the attorney client privilege. As the majority discussed, the court was concerned about waiving the

attorney client privilege because the issue here involved a party expert’s Rule 213(f)(3) disclosure

signed by the party’s attorney as opposed to a nonparty expert disclosure signed by an attorney.

During the first sidebar discussion in Chung’s adverse examination regarding Chung’s initial Rule

213(f)(3) disclosure, the court noted that it was not comfortable “with you getting into any

discussion that may have occurred between the attorney and the client” and that it was concerned

about issues with the initial disclosure and the attorney client privilege. If counsel had provided an

offer of proof, counsel could have demonstrated how his questions would not have violated the

attorney client privilege and the court could have determined whether it had valid concerns that

counsel’s examination would interfere with the attorney client privilege.

¶ 120 Nevertheless, even if I would agree with the majority and find that plaintiff’s argument

was not forfeited, I would not find that reversible error occurred. We will not disturb a judgment

when “it appears an error did not affect the outcome of the trial” or where we “can see from the

entire record that no harm has been done.” Jackson v. Pellerano, 210 Ill. App. 3d 464, 471 (1991).

“An incorrect evidentiary ruling does not warrant reversal unless the error materially affected the

outcome of the trial.” Karn v. Aspen Commercial Painting, Inc., 2019 IL App (1st) 173194, ¶ 19.

It was plaintiff’s burden to establish prejudice. Jackson, 210 Ill. App. 3d at 471.

¶ 121 Based on my review of the record, I would conclude that the trial court’s ruling on

Chung’s initial Rule 213(f)(3) disclosure did not affect the outcome of the trial. Plaintiff therefore

has not established prejudice. Although plaintiff’s counsel was not permitted to examine Chung

with his initial Rule 213(f)(3) disclosure during Chung’s adverse examination, the jury

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nevertheless heard the content of Chung’s initial disclosure at various times during trial. In fact,

during the testimony of defendants’ expert, plaintiff’s counsel read Chung’s initial Rule 213(f)(3)

disclosure to the jury verbatim:

“Q. Fourth paragraph: ‘Dr. Chung will further testify that based on his custom and

practice, he would have reviewed the CT scan and reports from August 11, 2012, and would

have been aware of Dr. Gullo’s finding of the teratoma. Further, he will testify that it was

also his custom and practice to compare the ultrasound to the CT at that time. He will testify

that even though the report states there was no comparison, it was his custom and practice

to compare the films and likely did so in 2012.’ Did I read that correctly?

A. Yes, sir.”

¶ 122 Further, during Chung’s testimony, plaintiff’s counsel played a video of Chung’s

discovery deposition testimony, which was similar to Chung’s initial Rule 213(f)(3) disclosure, as

he testified in his discovery deposition that he knew about the teratoma when he was reviewing

the ultrasound. The video, which was played at trial two times, contained the following colloquy

from Chung’s discovery deposition:

“Q. So when you were looking at these images of this ultrasound, were you doing so

with the teratoma in mind that you knew was identified on the CT from two hours earlier?

A. Well, to answer the question, yes, but that’s not the only thing I’d be concerned

about or looking at or trying to evaluate.” 1

In addition, during plaintiff’s closing argument, plaintiff’s counsel argued about Chung’s initial

Rule 213(f)(3) disclosure, stating:

1
The record shows that after the deposition testimony was played one time on the videotape,
plaintiff’s counsel asked “Can we get it louder? Let’s start it over.” The videotape with the deposition
testimony was then played a second time.
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“Those were his 213 disclosures after his deposition. Custom and practice, he would

have reviewed the CT scan and reports from August 11, 2012, and would have been aware

of Dr. Gullo’s findings of the teratoma. It was also his custom and practice to compare the

ultrasound to the CT at that time.”

Accordingly, even though plaintiff’s counsel did not examine Chung on his initial Rule 213(f)(3)

disclosure, the jury heard the content of Chung’s initial disclosure at trial multiple times, and I am

unpersuaded by plaintiff’s assertion that the court allowed defendants to “hide” from the jury

Chung’s admission in his initial disclosure that he had been aware of the teratoma when he

reviewed the ultrasound. Plaintiff has therefore failed to demonstrate that the jury’s verdict would

have been different had the trial court allowed him to examine Chung about Chung’s initial

disclosure.

¶ 123 B. ACR Practice Guideline

¶ 124 Further, I would find that no error occurred when the trial court barred plaintiff from

cross-examining Chung—who had never been a member of ACR—about the ACR practice

guideline.

¶ 125 Decisions on the admission of evidence will not be disturbed absent an abuse of

discretion. A trial court’s evidentiary ruling is considered an abuse of discretion when it is

arbitrary, fanciful, or unreasonable. People v. Irwin, 2017 IL App (1st) 150054, ¶ 27. We may only

find an abuse of discretion when no reasonable person would take the view adopted by the trial

court. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 452 (2004).

¶ 126 Initially, I note that the majority cites Fragogiannis v. Sisters of St. Francis Health

Services, Inc., 2015 IL App (1st) 141788, ¶ 27, for the proposition that a “learned text” can be used

for impeachment on cross-examination if the witness concedes the author’s competence, the court

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No. 1-18-1887

takes judicial notice of the authors’ competence, or “the cross-examiner proves the author’s

competence by a witness with expertise in the subject matter.” However, here, this case did not

involve a learned text or treatise that would satisfy the requirements of Fragogiannis.

¶ 127 The court did not take judicial notice of the author’s competence. And plaintiff did not

prove through Gore’s testimony that the guideline was authoritative. I acknowledge that Gore

testified that the guideline was a “good source” of information for diagnostic radiologists regarding

communication of diagnostic imaging findings and that it was “just a good, safe, prudent medical

practice.” However, Gore also testified that the guideline did not represent inflexible rules, was

not intended to establish a legal standard of care, and that the guideline’s preamble cautioned

against using the guideline in litigation. Further, although Gore testified that the guideline

supported his opinions, he also testified that he did not rely on it and that it was not the basis for

his opinion.

¶ 128 Cross-examining Chung would not have added value and plaintiff was not prejudiced

when the court did not allow him to do so. The court allowed the jury to hear testimony about the

standard of care provided in the guideline at various times during trial. In plaintiff’s opening

argument, over defense counsel’s objection, plaintiff’s counsel informed the jury that the ACR

“has practice guidelines,” which stated that “radiologists should compare examinations and reports

when they’re relevant and available.” Then, during Gore’s testimony, Gore expressly read the

guideline to the jury and testified about it as follows:

“The guideline says that if you’ve got an old exam of the same body part, you know,

it’s your duty to the patient to compare your current exam with the older exam if it’s

available and the same body part. And that’s just good medical practice, you know,

irrespective of what this guideline says.”

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No. 1-18-1887

Further, during plaintiff’s cross-examination of defendant’s expert, Dr. Bova, plaintiff’s counsel

asked whether he was familiar with the “guideline that’s been talked about.” After Bova

acknowledged he was familiar with it, counsel asked him, “You’re familiar with relevant

examinations and reports should be part of the radiologic consultation and report when appropriate

and available. Do you agree with that?” Bova responded, “When appropriate and available I think

is the key. Yes.” Accordingly, the jury heard about the standard of care provided in the guideline

several times during trial and plaintiff was not prejudiced by being unable to cross-examine Chung

about it.

¶ 129 Because plaintiff’s own expert testified that the guideline cautioned against its use in

litigation and that it did not establish a standard of care and the jury heard about the standard of

care provided in the guideline at multiple times during trial, I would find no reversible error

occurred when the trial court did not allow plaintiff to cross-examine Chung about the guideline.

¶ 130 C. Apparent Agency Instruction

¶ 131 I would also find that no error occurred when the trial court refused plaintiff’s modified

jury instruction for IPI Civil No. 105.10. The pattern jury instruction that was given adequately

instructed the jury on the burden of proof for plaintiff’s apparent agency claim.

¶ 132 The trial court gave the instruction for IPI Civil No. 105.10 that was in effect at the

time of trial and that had been in effect since 2003. That the instruction was revised in 2019 does

not necessarily mean that the instruction was incorrect in 2018. Neither the majority nor plaintiff

has cited any authority to support that the instruction in effect at the time of trial incorrectly stated

the law. Under Illinois Supreme Court Rule 239(a) (eff. Apr. 8, 2013), the trial court here was

required to use the IPI instruction that was in effect, unless it determined that it did not accurately

state the law.

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No. 1-18-1887

¶ 133 Nevertheless, even if the instruction inaccurately stated the law because it did not

include the words “or agent,” the instruction did not clearly mislead the jury or prejudice plaintiff.

Doe v. Bridgeforth, 2018 IL App (1st) 170182, ¶ 66 (a reviewing court will not generally reverse

a trial court for giving incorrect jury instructions unless they “clearly misled the jury and resulted

in prejudice” (internal quotation marks omitted)).

¶ 134 As discussed by the majority, in a medical malpractice context, a hospital’s liability is

based on whether the patient is placed on notice of the “independent status of the medical

professionals with whom he or she might be expected to come into contact.” York v. Rush-

Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 202 (2006). Under the “holding out”

factor in an apparent agency claim, if a patient “is placed on notice ***, it would be unreasonable

for a patient to assume that these individuals are employed by the hospital.” Id. Thus, the jury had

to determine whether Marilyn knew about Chung’s independent status and that he was not

employed by St. Alexius. See Butkiewicz v. Loyola University Medical Center, 311 Ill. App. 3d

508, 512 (2000) (stating that, under Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,

(1993), the first relevant inquiry is whether the patient knew that the physician was not employed

by the hospital). Given that the focus of an apparent agency claim in the medical malpractice

context is on the independent status of the medical professional, I cannot find that the instruction

that only included the word “employee” rather than “employee or agent” clearly mislead the jury

in what it had to determine in order to conclude that Chung was not the apparent agent of St.

Alexius, i.e., whether Chung was independent of St. Alexius.

¶ 135 Any shortcomings related to the consent form do not change my conclusion. The

consent form, which Marilyn signed, was presented clearly. The form contained bold print and

capital letters expressly indicating Chung’s independent status: “INDEPENDENT STATUS OF

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PHYSICIANS: I recognize that any or all physicians, residents, or medical students (under the

supervision of physicians and/or residents), who furnish services to me during this admission are

INDEPENDENT CONTRACTORS and are NOT AGENTS OR EMPLOYEES OF THE

HOSPITAL.” (Emphasis in original.) This provision is separated from the other paragraphs on the

form and the bold and capital letters make it plainly visible. Based on the express and clear

language of the consent form, the jury could have reasonably concluded that Marilyn was placed

on notice of Chung’s independent status and that it would have been unreasonable for her to

assume that he was an employee or agent of St. Alexius. See Wallace v. Alexian Brothers Medical

Center, 389 Ill. App. 3d 1081, 1088 (2009) (affirming summary judgment in favor of the hospital,

and noting that the plaintiff “signed a consent form that clearly indicated that defendant contracted

with independent physicians to provide services to patients” and that the physicians’ status was

“ ‘clearly set out’ ”).

¶ 136 In addition, there was no evidence that St. Alexius did anything to make Marilyn or

Jesse believe that Chung was an employee or agent of St. Alexius or that they had inquired about

whether any physicians were agents or employees of St. Alexius. See Mizyed v. Palos Community

Hospital, 2016 IL App (1st) 142790, ¶ 56 (affirming summary judgment for the hospital based on

an independent contractor disclaimer in a consent form and noting that there was no other evidence

to support the “holding out” element, i.e., no evidence showing that the plaintiff or his daughter

had inquired, or that anyone had told them, whether any physicians were employees or agents of

the hospital); Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) 121835, ¶¶ 5, 20-21

(affirming summary judgment for the hospital based on a disclaimer in a signed consent form

coupled with no evidence showing that the hospital did anything to make the plaintiff believe the

physician was the hospital’s employee). Moreover, the evidence showed that Marilyn was highly

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educated, and there is no evidence suggesting she expressed any confusion, did not understand the

consent form, or that she asked questions about the form.

¶ 137 The majority asserts that even a detail-oriented PhD like Marilyn may have trouble

“parsing” the language in the consent form while in severe pain when she was being told to “sign

here, here, here.” However, this court has previously stated that “one who signs a document is

charged with knowledge of its contents, regardless of whether he or she actually read the

document” (Mizyed, 2016 IL App (1st) 142790, ¶ 54) and that pain is not an excuse from reading

the form before signing it (Frezados, 2013 IL App (1st) 121835, ¶ 24). Further, the act of legally

signing a document signifies that the person had the opportunity to become familiar and

comprehend its terms. Mizyed, 2016 IL App (1st) 142790, ¶ 54. In addition, immediately above

the signature line and below the independent status disclaimer provision, the form states: “This

form has been fully explained to me and I clarify that I understand and accept its contents, except

as noted,” from which the jury could reasonably conclude that Marilyn was placed on notice of

the contents of the consent form.

¶ 138 Hammer v. Barth, 2016 IL App (1st) 143066, relied on by the majority is

distinguishable. There, the consent form stated: “ ‘I acknowledge and fully understand that some

or all of the physicians who provide medical services to me at the hospital are not employees or

agents of the hospital’ ” and “[n]on-employed physicians may include, but are not limited to, those

practicing emergency medicine, trauma, cardiology, obstetrics, surgery, radiology, anesthesia,

pathology and other specialties.” Id. ¶ 5. The court found the disclaimer was ambiguous because

“one could assume that some or all or none of the treating physicians are independent contractors,

and that independent physicians may or may not include cardiologists.” Id. ¶ 24.

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¶ 139 Of note, Hammer was an appeal from a grant of summary judgment and found that

there remained a question of fact that warranted reversal. Here, the jury decided the apparent

agency issue based on all of the evidence presented, including the consent form and testimony that

Chung was an employee of Midsuburban Radiological Associates, LLC, and St. Alexius did not

hire and could not fire Chung and did not control his practice. Moreover, the “any or all” language

here is not the same as the “some or all” language that Hammer found ambiguous. Neither the

majority nor plaintiff have cited any authority finding the “any or all” language is ambiguous or

that the “any” word in the provision is reasonably interpreted to exclude certain physicians.

¶ 140 Accordingly, the evidence presented to the jury, including the consent form, was

sufficient for the jury to conclude that Marilyn was placed on notice of the independent status of

Chung and that he was therefore neither an employee nor agent of St. Alexius. The IPI Civil No.

105.10 instruction that was given, and that only included the word “employee,” was not misleading

to the jury. I would also find that the consent form presented to Marilyn was not ambiguous or

inadequate to convey that Chung was independent of St. Alexius.

¶ 141 D. Unaddressed Issues by the Majority

¶ 142 1. Manifest Weight of the Evidence

¶ 143 Although the majority did not address the jury’s apparent agency finding, I will do so

because I find no reversible errors occurred. As the majority discussed, for a hospital to be liable

under the apparent agency theory, a plaintiff must prove (1) the hospital, or its agent, acted in a

manner that would lead a reasonable person to conclude that the alleged negligent physician was

an employee or agent of the hospital; (2) where the acts of the agent created the appearance of

authority, “the plaintiff must also prove that the hospital had knowledge of and acquiesced in

them”; and (3) “the plaintiff acted in reliance upon the conduct of the hospital or its agent.”

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(Internal quotation marks omitted.) Gilbert, 156 Ill. 2d at 525. Under the “holding out” factor, “if

a patient is placed on notice of the independent status of the medical professionals with whom he

or she might be expected to come into contact, it would be unreasonable for a patient to assume

that these individuals are employed by the hospital.” York, 222 Ill. 2d at 202. An important factor

is whether a patient signed a consent form that contained unambiguous independent status

disclaimer language. Mizyed, 2016 IL App (1st) 142790, ¶ 40.

¶ 144 A verdict is against the manifest weight of the evidence when the opposite conclusion

is clearly evident or when the jury’s finding was unreasonable, arbitrary, and not based on the

evidence. Bowman v. University of Chicago Hospitals, 366 Ill. App. 3d 577, 584-85 (2006). It is

the jury’s responsibility to resolve conflicts in the evidence, determine the credibility of witnesses,

and decide the weight to be given to the witnesses’ testimony. Lisowski v. MacNeal Memorial

Hospital Ass’n, 381 Ill. App. 3d 275, 282 (2008). As a reviewing court, we may not reweigh the

evidence or substitute our judgment for that of the jury. Bowman, 366 Ill. App. 3d at 585.

¶ 145 The jury’s finding that Chung was not the apparent agent of St. Alexius was not against

the manifest weight of the evidence. As I discussed above, the evidence was sufficient for the jury

to conclude that Marilyn was placed on notice of Chung’s independent status and that he was not

an employee or agent of St. Alexius. Thus, the jury’s finding that Chung was not the apparent

agent of St. Alexius was not unreasonable or arbitrary and, therefore, was not against the manifest

weight of the evidence. We may not reweigh the evidence or substitute our judgment for that of

the jury.

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¶ 146 2. Dr. Bova and Sagittal CT Images

¶ 147 I will address plaintiff’s argument related to Bova relying on undisclosed CT images

over plaintiff’s objection that defendants violated Rules 237 and 213(i) because I find that no

reversible errors occurred.

¶ 148 Rule 237(b) states:

“The appearance at the trial or other evidentiary hearing of a party *** may be required by

serving the party with a notice designating the person who is required to appear. The notice

also may require the production at the trial or other evidentiary hearing of the originals of

those documents or tangible things previously produced during discovery.” Ill. S. Ct. R.

237(b) (eff. Jul. 1, 2005).

Plaintiff asserts that he served attorneys for Chung and St. Alexius notices pursuant to Rule 237

about two months before trial and requested production of all demonstrative exhibits before the

start of trial. He argues that defendants violated Rule 237 because St. Alexius did not produce

Bova’s PowerPoint slide, which included sagittal images created from Marilyn’s actual CT

images, until the morning of Bova’s testimony.

¶ 149 With respect to plaintiff’s argument that defendants violated Rule 213(i), this rule

requires a party “to seasonably supplement or amend any prior answer or response whenever new

or additional information subsequently becomes known to that party.” Ill. S. Ct. R. 213(i) (eff. Jan.

1, 2018). Plaintiff claims that defendants violated Rule 213(i) because Bova created new CT

images that no one had seen until the last day of trial and Bova relied on these images as a basis

for his testimony that the teratoma was not within the field of view of the ultrasound.

¶ 150 Initially, defendants assert that plaintiff forfeited the issue because he failed to make a

contemporaneous objection during Bova’s testimony. Defendants assert that plaintiff did not

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object until Bova finished his testimony about the sagittal CT images. To preserve a claim for

review, an objection must be contemporaneous with the objectionable conduct. York v. El-

Ganzouri, 353 Ill. App. 3d 1, 17 (2004). Here, the record shows that St. Alexius’s counsel asked

Bova numerous questions about the sagittal CT images before plaintiff objected based on Rule

213. Thus, plaintiff failed to make a timely contemporaneous objection and forfeited his challenge.

See id. at 17-18 (concluding that the defendant forfeited his challenge by failing to make a timely

objection, noting that “multiple references” to the objectionable testimony went unchallenged

before the objection was made).

¶ 151 However, even if plaintiff properly preserved his claim, I would find that the trial court

properly allowed Bova to testify about the sagittal CT images over plaintiff’s objections that they

were not timely disclosed or included in Bova’s Rule 213(f) disclosure.

¶ 152 Here, the trial court allowed Bova to testify about the images, finding that the exhibits

were demonstrative. Demonstrative evidence serves as a visual aid to the jury in comprehending

the verbal testimony of a witness. Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 341

(1991). Demonstrative evidence is looked upon favorably by the courts because it allows the fact

finder “to have the best possible understanding of the matters before it.” Sharbono v. Hilborn,

2014 IL App (3d) 120597, ¶ 30. “The primary considerations in determining whether

demonstrative evidence is admissible or may be used at trial are relevancy and fairness.” Yanello

v. Park Family Dental, 2017 IL App (3d) 140926, ¶ 31. With respect to relevancy, to be admissible,

the evidence “must actually be used to illustrate or explain the verbal testimony of a witness as to

a matter that is relevant.” (Internal quotation marks omitted.) Id. With respect to fairness,

demonstrative evidence may still be excluded by the trial court if “ ‘its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

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the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.’ ” Id. (quoting Ill. R. Evid. 403 (eff. Jan. 1, 2011)). The admission of an exhibit as

demonstrative evidence is within the sound discretion of the trial court. Kayman v. Rasheed, 2015

IL App (1st) 132631, ¶ 66. A trial court abuses its discretion when the ruling is arbitrary, fanciful,

or unreasonable or when no reasonable person would take the same view. Id.

¶ 153 Bova’s Rule 213(f) disclosure stated that Bova would testify “to the tissues structures,

vessels, and organs visualized by differing forms of medical imaging (plain film, US, MRI, CT,

etc.). He will testify to the limitations in visualizing various tissues, structures, vessels and organs

with differing forms of medical imaging.” (Emphasis added.) Bova’s Rule 213(f) disclosure also

stated:

“Dr. Bova will opine that reasonable careful radiologist would not have been able to

identify a teratoma on [Marilyn’s] August 11, 2012, ultrasound. Even viewing the August

11, 2012, ultrasound retrospectively with knowledge of the teratoma based on the CT

findings, no teratoma can be clearly seen on the ultrasound. Despite the presence of the

teratoma on the August 11, 2012, CT, its absence on the August 11, 2012, ultrasound may

be explained for one of two reasons. *** Either the teratoma was outside the field of view

of the ultrasound or the teratoma was unable to be viewed by the less sensitive ultrasound

technology due to fecal matter or gas within the bowel obscuring the teratoma.” (Emphasis

added.)

At trial, Bova testified that the teratoma was located outside the field of view of the ultrasound,

which was a subject identified in his Rule 213(f) disclosure stated above. He also testified that the

teratoma was “was big enough that it pushed itself outside of the pelvis, and, therefore, was never

in the field of view.” Bova used CT images, including the sagittal views that he created from

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Marilyn’s actual CT images, to explain this verbal testimony that the teratoma was located outside

the field of view of the ultrasound. Accordingly, I would not find that trial court’s decision to allow

Bova to testify about the sagittal images because they were demonstrative was arbitrary or

unreasonable.

¶ 154 In addition, the trial court instructed the jury that the images were not evidence. The

court stated: “the jury are cautioned that this is not evidence in this case, *** They’re just

showing—using this as demonstrative evidence, and it can only be used by the witness to explain

his testimony.” Finally, plaintiff was not prejudiced by Bova’s use of the sagittal images to explain

that the teratoma was located outside the view of the ultrasound. A disputed issue at trial regarding

the standard of care was whether the standard of care required Chung to look at the CT report when

he was reviewing the ultrasound and whether it required him to include the finding of the teratoma

and CT report in his ultrasound report. Plaintiff’s counsel conceded during closing argument that

the issue was not whether Chung should have seen the teratoma on the ultrasound report, as he

stated during closing argument: “Did you hear anyone on our side say that Dr. Chung should have

seen the teratoma on the ultrasound? No. Ovaries show up on ultrasound, teratomas show up on

CTs. *** So no one is saying that Dr. Chung should have looked at the ultrasound and seen the

teratoma.” Thus, plaintiff was not prejudiced when Bova used the sagittal images to aid the jury

in understanding his testimony that the teratoma was located outside the field of view of the

ultrasound.

¶ 155 Accordingly, the trial court did not abuse its discretion when it allowed Bova to testify

about the sagittal CT images.

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¶ 156 E. Actual Agency Instruction

¶ 157 I agree with the majority that the trial court did not abuse its discretion when it refused

to give IPI Civil No. 50.10, the instruction for an actual agency claim.

¶ 158 F. Plaintiff’s Contempt Petition Against Chung

¶ 159 I agree with the majority that plaintiff failed to set forth well-reasoned arguments with

relevant and persuasive legal authority supporting how the trial court erred when it dismissed his

contempt petition against Chung and so forfeited the issue. See Ill. S. Ct. R. 341(h)(7) (eff. May

25, 2018). Thus, I would find that plaintiff’s arguments with respect to his contempt petition

against Chung are forfeited because he failed to comply with Rule 341. See Atlas v. Mayer

Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33 (“An issue not clearly defined and

sufficiently presented fails to satisfy the requirements of Rule 341(h)(7) and is, therefore,

forfeited.”).

¶ 160 G. Two-Issue Rule

¶ 161 Finally, I disagree with the majority’s conclusion that the two-issue rule does not apply.

Under the two-issue rule, a “ ‘general verdict rendered by the jury creates a presumption that the

jury found in favor of [a defendant] on every defense raised’ [citation], as well as a presumption

that ‘all issues of fact upon which proof was offered were found in favor of the prevailing party’

[citation].” Obermeier v. Northwestern Memorial Hospital, 2019 IL App (1st) 170553, ¶ 51. Under

this rule, “we must presume that the jury found against plaintiff on every issue raised in the counts

that were before it.” Id.

¶ 162 To prove negligence, plaintiff must prove (1) the standard of care against which the

medical professional’s conduct must be measured, (2) negligent failure to comply with that

standard, and (3) negligence proximately caused the injuries for which the plaintiff seeks redress.

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Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 292 (2008). Here, plaintiff’s arguments on appeal are

only relevant to the issue of Chung’s standard of care. The jury returned a general verdict form in

favor of Chung. Neither party submitted special interrogatories, so we cannot determine from the

jury’s general verdict whether any alleged errors in the court’s evidentiary rulings regarding the

standard of care affected the jury’s verdict. See Strino v. Premier Healthcare Associates, P.C., 365

Ill. App. 3d 895, 905 (2006) (“Because neither party submitted special interrogatories, we cannot

determine from the general verdict whether any error in the contributory negligence instruction

affected the verdict.”). We therefore must presume that the jury found in favor of defendants and

against plaintiff on every defense raised and on all issues of fact upon which proof was offered.

Based on my review of the record, there was sufficient evidence presented to the jury to support

that Chung was not the proximate cause of Marilyn’s death. Thus, because plaintiff did not assert

that any error occurred with respect to the issue of proximate causation, the evidence was sufficient

to show that Chung was not the proximate cause of Marilyn’s death, and we must presume the jury

found in favor of Chung with respect to proximate causation, I find that the two-issue rule applies

and would affirm the jury’s verdict even if the court erred in its evidentiary rulings regarding the

standard of care.

¶ 163 Finally, I note that, because I would conclude that the jury’s finding that Chung was

not the apparent agent of St. Alexius was not against the manifest weight of the evidence and

because there was no reversible error with respect to the agency instructions, I would affirm the

jury’s finding with respect to St. Alexius on these bases alone, as the other evidentiary issues

plaintiff raised only pertained to Chung. Thus, with respect to St. Alexius, I would affirm not only

based on the two-issue rule but also because there was no reversible error with the agency issues

plaintiff raised.

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No. 1-18-1887

¶ 164 Conclusion

¶ 165 For the reasons stated above, I respectfully dissent and would affirm the jury’s verdict.

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No. 1-18-1887

No. 1-18-1887

Cite as: Perez v. St. Alexius Medical Center, 2020 IL App (1st) 181887

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-L-10905;
the Hon. Edward S. Harmening, Judge, presiding.

Attorneys Robert S. Baizer, Joseph E. Kolar, and David A. Neiman,
for of Romanucci & Blandin, LLC, of Chicago, for appellant.
Appellant:

Attorneys Karen Kies DeGrand and Laura Coffey Ieremia, of Donohue
for Brown Mathewson & Smyth LLC, and Amy L. Anderson and
Appellee: Teresa R. Maher, of Brenner, Monroe, Scott & Anderson, Ltd.,
both of Chicago, for appellee Jeffrey E. Chung.

Hugh C. Griffin, David C. Hall, and Matthew J. Ennis, of
Hall Prangle & Schoonveld, LLC, of Chicago, for other appellee.

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