dissenting:
I dissent from the majority opinion; I would affirm the verdict of the jury in this case subject to a modification of the judgment by allowing a setoff for certain reimbursements.
Considering the complexity of this appeal, it may be helpful to state at the outset that I agree with the majority that section 2 — 1205 of the Code of Civil Procedure is constitutional, that Dr. Laird was qualified to testify as to pharmacological aspects of the case, and that it was not error to receive evidence of plaintiff’s negligence without special pleading of such an affirmative defense by defendants.
As to the estoppel issue, although I join with the majority in holding that defendants are estopped from asserting the statute of limitations as an affirmative defense, I do not agree that this issue was previously determined by the Supreme Court of Illinois in Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869. The majority has quoted two statements from the supreme court decision out of context. As I read that decision, the court held that plaintiff had alleged circumstances that, if proved, would estop the doctors from asserting the statute of limitations as an affirmative defense. The court stated: “She [plaintiff] is, in our judgment, entitled to an opportunity to prove the allegations upon which the estoppel and her cause of action are based.” (85 Ill. 2d 146, 160, 421 N.E.2d 869, 876.) Pursuant to that holding of the supreme court, upon remand the issue of estoppel was tried and was submitted to the jury along with the other issues in this case, and the jury’s determination of that issue is subject to review on appeal.
The evidence was disputed as to when plaintiff knew or reasonably should have known that her injury resulted from actionable conduct by defendant doctors. Defendants argue on appeal that the verdict holding the doctors estopped from asserting the statute of limitations was contrary to the manifest weight of the evidence. I believe the evidence indicating that plaintiff relied upon defendants’ representations that her leg problems were not connected to the estrogen and birth-control medication, though not unanimous, was sufficient to support the verdict. The testimony that plaintiff’s husband obtained a vasectomy in 1974 so that plaintiff would no longer have to take birth-control medication and that plaintiff at that time appreciated the causal relationship between the pill and her leg condition was not so clear and convincing that all the testimony to the contrary would have to be disbelieved. Therefore, I would hold that the jury’s finding of estoppel was not contrary to the manifest weight of the evidence.
The majority opinion states that the decisive issue is plaintiff’s cross-appeal from the verdict and judgment assessing 40% of the fault to her negligence. The majority holds that the court committed reversible error in failing to give a burden-of-proof instruction placing the burden of proving plaintiff’s negligence on defendant. Examination of the record discloses the court in fact gave plaintiff’s burden-of-proof instruction (Plaintiff’s instruction No. 19, Illinois Pattern Jury Instruction, Civil, No. 21.03 (2d ed. 1971)) and refused defendant’s. Neither party offered an instruction placing the burden of proving plaintiff’s negligence on defendant, and plaintiff made no such argument in her cross-appeal. Thus, any error was waived. Even if plaintiff had offered such an instruction, in my view the failure to give it would not have been reversible error. The decision of Casey v. B aseden relied upon by the majority had not been decided by the supreme court at the time of the trial in this cause, and the statute requiring that plaintiff’s negligence be treated as an affirmative defense had not been enacted. If such procedural changes in the rapidly evolving law of comparative negligence are given retroactive effect, this plaintiff and others similarly situated may never be able to have a trial that meets the requirements of not only the present but future legal standards.
Defendants have argued that the court erred in giving the burden-of-proof instruction offered by plaintiff rather than the instruction submitted by defendants. Defendants claim that their instruction was a statement of the law of comparative negligence relating to the diminution of damages. However, there is no such language in the burden-of-proof instruction offered by defendants. The court did instruct the jury that defendants claim that plaintiff was contributorily negligent in one or more of seven specific actions, and it gave the jury a verdict form based in IPI Civil 2d No. 45.01 which set forth the method of reducing the total damages by the amount of any negligence attributable to plaintiff. Under the law in existence at the time of trial, I would hold these instructions to be adequate. Furthermore, the jury did in fact find that 40% of plaintiff’s injuries were attributable to plaintiff’s negligence. Given that finding, I would not consider any error in the burden-of-proof instruction to have been reversible error.
The majority also bases its reversal on the fact that the issues instruction did not include a statement that the jury must find that the drugs prescribed by the defendants were the cause of plaintiff’s thrombophlebitis. In my view, any such error was waived because neither party offered an instruction containing such a statement, and neither party has argued such error in either the trial court or the appellate court. I am aware of no cases holding that a reviewing court can reverse a civil judgment for an error in an instruction which neither party has raised at any stage of the litigation. The Schutzenhofer case relied upon by the majority involved an improper summary judgment which decided an issue of fact — a far cry from the situation here. The burden of asserting error is on the parties, not the court, and I am firmly opposed to a policy whereby the reviewing court searches the record for errors not claimed by either party.
In addition, I see nothing wrong with the instruction on causation as given. The majority has quoted from a small portion of the issues instruction, and has omitted that part of the instruction which covered causation. After listing the alleged acts of negligence claimed by plaintiff, the instruction stated:
“The plaintiff further claims that one or more of the foregoing was a proximate cause of her injuries.
The defendants deny that they were negligent in doing any of the things claimed by the plaintiff and deny that any claimed act or omission on the part of these defendants was a proximate cause of the plaintiff’s claimed injuries.”
This instruction makes clear that the jury must find that the proximate cause of plaintiff’s injuries was either the defendants’ failure to diagnose and treat plaintiff’s thrombophlebitis properly or the giving of inappropriate medications. I believe this instruction was fully adequate as to causation. Furthermore, as I view this case, to require a specific finding that certain prescriptions were the proximate cause of plaintiff’s injury would not be appropriate because the evidence indicates that other acts of the defendants may have amounted to negligence as well as the disputed prescriptions. The majority’s view of causation is unjustifiably narrow in the context of this case.
Since I do not agree that these instructions to the jury constituted reversible error, it is also necessary to consider the other errors asserted by defendants.
Foremost among the additional issues are the defendants’ contentions that the jury finding defendants liable and the finding of proximate causation were both against the manifest weight of the evidence. These issues were hotly contested, and numerous medical witnesses testified for each side. There was substantial evidence in support of the jury’s verdict. For example, plaintiff was examined by Dr. Juco, a cardiovascular surgeon, in May of 1976 and was diagnosed as having active thrombophlebitis in the deep veins of both legs. Dr. Juco made the diagnosis after ordering a venogram and discovering several clots in each leg. He stated that “most of the deep [vein] system below the groin has been involved in previous thrombophlebitis.” He stopped the birth-control medication and prescribed Coumadin as anticoagulant therapy. This was just a few days after defendant Weimer had diagnosed plaintiff’s leg pains as due to neuritis and myositis, not phlebitis, and had prescribed pain pills plus walking.
In January of 1977, when plaintiff again complained of leg and chest pains, Dr. Juco referred plaintiff to Mayo Clinic for a second opinion. As a result of that consultation, the diagnosis was post-phlebitic syndrome with no active phlebitis in her legs at that time. Postphlebitic syndrome involves swelling and pain in the legs as a result of the destruction of valves in the veins caused by an earlier episode of phlebitis. In order to facilitate the drainage of blood from the legs, the patient must wear elastic stockings and keep her legs elevated.
This testimony, as well as other evidence, would support a finding that defendants failed to diagnose plaintiff’s condition correctly in May of 1976 and further that they failed to treat her active thrombosis appropriately at that time. As indicated in the majority opinion, defendants’ conduct in 1976 was involved in two of the alleged acts of negligence set out in the issues instruction.
Although defendants’ testimony indicated that plaintiff received estrogen injections in their office prior to 1972 and that she was given one prescription in 1972, good for only 6 to 12 months, for home injections, plaintiff testified that she obtained refills of the medication and of the syringes and needles for prescribed weekly injections of estrogen from 1972 to 1976. The records of the drug store corroborated plaintiff’s testimony, and the druggist stated that all medications and syringes were dispensed upon written or oral prescriptions of defendants. The apparent conflict between plaintiff’s testimony and that of defendants concerning the amount of estrogen prescribed was for the jury to resolve. Similarly, the dispute among the medical witnesses as to whether estrogen and birth-control pills should have been continued, given plaintiff’s history of phlebitis, was another issue for the jury. Given the conflicting evidence, I would hold that the findings of the jury as to proximate cause and as to liability were not contrary to the manifest weight of the evidence.
Defendants also contend that the award of $500,000 damages was against the manifest weight of the evidence. Seeing no need to summarize here the evidence of damages, I would state that the award appears to be within the limits of fair and reasonable compensation and is not so large as to shock the judicial conscience. (Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824.) I would not set aside the verdict or the judgment as reduced.
Defendants also argue that the trial court erred in denying a motion for a bifurcated hearing which would have permitted the question of estoppel to be tried separately from the question of liability and in refusing to grant leave for an interlocutory appeal from that ruling. I am of the opinion that the trial court acted properly to prevent needless duplication of testimony since much of the evidence relating to estoppel was also the basis for establishing defendants’ negligence. Defendants do not establish prejudice from that ruling, and I would not consider the refusal of an interlocutory appeal to be an abuse of discretion.
Defendants also assert that they were deprived of a fair trial by erroneous rulings on evidence as follows:
(1) refusal to ask certain questions on voir dire that would have uncovered possible bias or partiality of the jurors or that would disclose prior married names of plaintiff;
(2) permitting plaintiff’s counsel to draw graphs, charts and lists on a blackboard to demonstrate certain aspects of testimony;
(3) allowing plaintiff’s experts to testify that the Physician’s Desk Reference provided guidance for the standard of care to be used in prescribing oral contraceptives to a person with thrombophlebitis;
(4) refusing to permit a hypothetical question concerning standard of medical care acceptable in Pekin in 1963-1976;
(5) denying a motion to bar testimony by an undisclosed expert witness called by plaintiff in rebuttal to counter testimony for defendants by plaintiff’s treating physician;
(6) permitting plaintiff’s expert to testify concerning her subjective statements and her credibility;
(7) ordering defense counsel not to discuss this case with defendants during recesses in trial while defendants were testifying, a restriction that applied to plaintiff as well;
(8) denying defense counsel re-cross-examination of defendant Dr. Taubert during his testimony as an adverse witness for plaintiff;
(9) reading two answers to interrogatories of Dr. Weimer at the conclusion of plaintiff’s rebuttal evidence, the substance of which concerned methods of ordering prescriptions for patients;
10) allowing a witness of defendants to testify to matters on cross-examination which were outside the scope of direct examination;
(11) refusing to allow defense counsel to ask plaintiff’s treating hematologist whether there was a medical controversy as to estrogen causing blood clots;
(12) allowing one of plaintiff’s medical witnesses to give an opinion as to causation of plaintiff’s blood clots when he was not an expert in that field;
(13) receiving certain medical records into evidence allegedly without a proper foundation;
(14) admitting into evidence certain medical articles mentioned in expert testimony but without any other foundation;
(15) admitting defendant’s bill for treatment of plaintiff and allowing plaintiff’s counsel to malign defense counsel for withholding the document improperly.
All of these rulings concerned matters within the discretion of the trial court. I believe defendants have failed to demonstrate that the trial court abused its discretion to any substantial extent or that they were denied a fair trial by the trial court’s rulings on evidence.
Defendants also contend that the court committed 12 errors in instructing the jury in that it was error to give plaintiff’s Nos. 10A, 16, 19, 12, 11, 18, 17, and that it was error to refuse defendants’ Nos. 17, 5, 12, 19, and 20. It would unduly lengthen this dissenting opinion to discuss defendants’ arguments as to each claimed error in the instructions. In my view, defendants’ positions are either without merit or amount to such a minor matter as to not constitute reversible error. In addition, defendants assert that it was error to fail to require an itemized form of verdict. This objection was waived since defendant did not offer an itemized verdict form.
In her cross-appeal, plaintiff contends that it was error to instruct the jury as to seven alleged acts of negligence on the part of plaintiff which defendants claimed contributed to her injuries. Plaintiff argues that her contributory negligence was not pleaded by defendants and that she had no opportunity to present evidence on those issues since she had no advance notice of them until the instruction conference after the proofs were closed. As I have indicated above, I do not consider the issues instruction to have been erroneous as a matter of law, and also I am convinced that it conformed to the evidence presented at trial. There was evidence indicating that plaintiff did not report all her leg pains to defendants, that she obtained refills of prescriptions without approval of defendants, that she did not follow all the instructions of defendants, and that she took long automobile trips with periods of stasis in spite of warnings by defendants. Thus, it was proper to include those actions in the instruction. The jury had to consider the evidence of both parties on those issues, as it did on all the other issues, and I believe this was an appropriate means of instructing the jury at the time of this trial.
As I have indicated above, I would affirm the verdict of the jury and modify the judgment of the trial court so as to allow a setoff for medical expenses paid by others.