dissenting:
The majority opinion goes beyond the issues raised by the parties on appeal to suggest not only that the plaintiff wrongfully diagnosed with HIV should recover a lesser award of damages, but also to suggest that he may be entitled to no recovery for the malpractice in this case. As the “Analysis” section of the opinion has four sections, this dissent will adopt the same format.
I. Cross-examination of Defendant
The majority opinion holds that the trial court committed reversible error by failing to bar questions about defendant failing a board examination. However, plaintiff failed to include the posttrial motion in the record on appeal. Nor did defendant cite where in the transcript the question was asked. Thus, defendant waived the issue.
Waived errors may still he subject to plain error review. Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 574 (2001). However, “[p]lain error is a limited and narrow exception to the general waiver rule.” In re Detention ofTraynoff, 338 Ill. App. 3d 949, 963 (2003). Indeed, relief under the plain error doctrine is “exceedingly rare” in civil cases, limited to cases where the proceedings deprived the appellant of a fair trial and amounted to “an affront to the judicial process.” Dowell v. Bitner, 273 Ill. App. 3d 681, 693 (1995). The majority disregards the waiver in this case without mentioning that it is doing so, let alone explaining its reasons for doing so. On the merits, the majority relies upon McCray v. Shams, 224 Ill. App. 3d 999, 1002 (1992), and Rockwood v. Singh, 258 Ill. App. 3d 555, 557 (1993). Neither case found it reversible error to question a defendant physician on board certification, let alone that an error on this point is reversible error per se, let alone that it justifies ignoring defendant’s waiver.
In this case, plaintiff presented the testimony of numerous experts opining that defendant violated the standard of care. Defendant presented two experts who testified to the contrary, but one of them was forced to admit he gave deposition testimony that the standard of care required defendant to find out why the laboratory reported an indeterminate test result. Given this record, I cannot agree that a question regarding defendant’s failure of a board exam deprived her of a fair trial or so undermined the judicial process that this court should ignore her waiver of the issue.
II. Evidence of Defendant’s Criminal Behavior and Character
In dicta, the majority states that the trial court erred in barring evidence of plaintiffs criminal behavior, which the majority states is relevant to the issues of causation and damages. Given the unique circumstances of this case, where plaintiff’s claim rests in part on such behavior, I agree that evidence suggesting such behavior predated the misdiagnosis may be relevant.
The record shows, however, that defendant sought to introduce evidence of the 1990 and 1992 arrests and the circumstances surrounding them through the testimony of Lee Caldwell, plaintiffs supervisor at the University of Chicago security job, who investigated the arrest that led to plaintiff being fired from that job. Caldwell learned this information by reviewing police reports and talking to police officers. Generally, police reports are inadmissible; the mere attempt to introduce such an exhibit may be considered reversible error. Cranwill v. Donahue, 132 Ill. App. 3d 873, 874 (1985). The theory behind this line of cases is that arrest or police reports are inadmissible because the information in the report is generally hearsay or states conclusions. Cranwill, 132 Ill. App. 3d at 874. Testimony from Caldwell, who had no personal knowledge of the information supplied by the police reports or the officers, would have been double hearsay at best. Obviously, on remand, the trial court will be required to follow well-established case law from this court and our supreme court regarding the admissibility of police reports and hearsay.
As for plaintiffs apparent misstatement of his employment status to the sentencing judge when he pleaded guilty to the unlawful use of a weapon, the transcript shows that the trial court carefully analyzed whether such statements should be considered judicial admissions and, if so, whether admitting the evidence would be more prejudicial than probative. The trial court ultimately ruled that the statements should not be deemed a judicial admission. Defendant offered no argument to the contrary; neither does the majority opinion. Thus, the majority forces the trial judge to choose between the clear suggestion in the majority’s dicta that the evidence should have been admitted and well-established case law regarding judicial admissions.
III. Mitigation of Damages
The majority opinion holds that defendant waived the issue of whether the trial court improperly barred evidence of the mitigation defense. I concur, though the majority’s application of the waiver rule as to this issue seems unusual, as this issue was much more likely to affect the outcome of the trial than the question of whether the jury should have heard about defendant’s lack of board certification. It is doubly unusual, given that this portion of the majority opinion purports to be advising the parties on issues likely to arise on retrial.
The majority then turns to the trial court’s refusal of the jury instruction on the issue. The majority finds a substantial factual dispute is raised by “defendant’s testimony that she provided referrals for plaintiff to visit an orthopedist and an infectious diseases specialist and that plaintiff followed through with the referral to the orthopedist, coupled with plaintiffs testimony in which he did not deny receiving a referral to an infectious diseases specialist.” 373 Ill. App. 3d at 451.
However, the record on appeal shows that defendant testified that she provided the address and telephone number for the infectious diseases specialist and gave the referral form to a nurse, not to plaintiff. Defendant did not know whether the nurse gave the form to plaintiff. Dr. Jay Matthew Ehrlich, who worked at Family Health Specialists from 1993-96 as a medical resident, testified that he was familiar with the office policies from 1993-96 and saw similar paperwork from 1992. Dr. Ehrlich testified that a doctor would fill out basic information on a referral form, but that someone else would ensure the referral was within the HMO network and make an appointment for the patient. Dr. Ehrlich testified that the referral slip at issue contained no information about an appointment.
This testimony — omitted from the majority opinion’s analysis of the issue — when combined with plaintiffs testimony that he did not recall getting a referral to an infectious diseases specialist and evidence that plaintiff did, follow through with the other referral, does not create a substantial factual dispute. The burden was on the defendant to show that plaintiff did receive a referral to trigger a duty to mitigate. Thus, I would have upheld the trial court’s ruling.
IV Recovery of Damages
The majority opinion notes that the issue of whether plaintiff can recover without proving physical injury was not raised by the parties. Thus, the reader may wonder why the majority has included it in a portion of the opinion ostensibly addressing issues likely to arise on retrial. The issue is likely to arise on retrial only because the majority opinion has stated it should arise at retrial, with disregard for the custom and general function of an appellate court.
The majority opinion proceeds on the notion that this case “appears to be a case of first impression in Illinois” (373 Ill. App. 3d at 452) followed by a scholarly discussion of the law of other jurisdictions, but ultimately offers no opinion as to how the issue should be resolved. Given how far afield the majority opinion goes on this issue, the lack of follow-through is disappointing, so the following is offered for the consideration of the parties and the trial court on remand.
Our supreme court has held that a patient is not required to allege physical injury to recover for negligent infliction of emotional distress arising from alleged medical malpractice. Corgan v. Muehling, 143 Ill. 2d 296, 308-12 (1991).1 Our supreme court also has held that “[t]he economic loss doctrine does not bar recovery in tort for the breach of a duty that exists independently of a contract.” Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 164 (1994). In this case, plaintiff alleged and proved both emotional distress and economic loss. These factors may suggest why the parties did not litigate the issue.
In sum, the majority opinion inconsistently applies the waiver rule, shifts the burden of proof for the affirmative defense, misreads Illinois case law and the record on appeal, and goes far beyond the issues necessary to decide the appeal. Accordingly, I dissent.
Even if someone could creatively fashion an exception to this rule, other jurisdictions have held that if a patient can establish that a misdiagnosis led to the prescription of caustic medication such as Azidothymidine (commonly known as “AZT,” which plaintiff in our ease was prescribed), and that he suffered bodily injury from that treatment, then he would have met the requirements of the impact rule and would be able to recover for the emotional trauma suffered as a result of that treatment. E.g., R.J. v. Humana of Florida, Inc., 652 So. 2d 360, 364 (Fla. 1995).