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Wilson v. Clark

OPINION FILED FEBRUARY 3, 1981.

JOHN D. WILSON, APPELLEE,

v.

DAVID J. CLARK, APPELLANT.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. John A. Leifheit, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

In the circuit court of Kane County, plaintiff, John Wilson, brought an action against defendant, Dr. David Clark, following the alleged negligent medical treatment of the plaintiff which resulted in the amputation of his right leg below the knee. Following a jury trial, a verdict was returned for the defendant. On appeal, the appellate court was presented 10 issues for review. The court considered three of these issues and reversed the trial court. (80 Ill. App.3d 194.) It held that no foundation was established for the admission of hospital records into evidence and that a hypothetical question based upon these records should not have been allowed. The appellate court also found that the trial court had allowed incompetent and prejudicial testimony to be admitted on the issue of contributory negligence and that such admission constituted reversible error.

Although plaintiff has again raised 10 issues, we find it necessary to address only those where objections were specifically raised in the post-trial motion.

Plaintiff argues that his claim that the trial court erroneously permitted admission of incompetent and prejudicial testimony on the issue of contributory negligence was raised with sufficient specificity in his post-trial motion. The two allegations of this error, as set forth in the post-trial motion, stated:

"21. The Court was in error in allowing witnesses to answer questions on irrelevant, immaterial and prejudicial matters.

22. The Court was in error in admitting improper, irrelevant, immaterial and/or prejudicial evidence."

The appellate court indicated that because plaintiff objected to the error during trial, he did not have to specifically raise the same error in the post-trial motion.

Prevailing statutory and case authority in Illinois is contrary to the appellate court's position. (Ill. Rev. Stat. 1977, ch. 110, par. 68.1(2); 73 Ill.2d R. 366(b)(2)(iii); Brown v. Decatur Memorial Hospital (1980), 83 Ill.2d 344; Bank of Marion v. Robert "Chick" Fritz, Inc. (1974), 57 Ill.2d 120, 127; Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 114.) These authorities hold that post-trial motions must contain specific allegations of error relied on for relief. The allegations here do not set forth a succinct statement of the factual basis upon which plaintiff's conclusions are drawn (Brown v. Decatur Memorial Hospital (1980), 83 Ill.2d 344, 350), and the claimed error has not been properly preserved for review.

Plaintiff next contends he should have been awarded a judgment notwithstanding the verdict. According to the often-cited Pedrick standard, a party is entitled to a judgment n.o.v. "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.) Plaintiff presented evidence that defendant failed to treat a "known infecting organism." He maintains that this, in and of itself, requires a judgment in his favor. On the other hand, the evidence reveals several points supporting defendant's contention that his treatment was not improper. Defendant testified that he was attempting to stop the more aggressive or virulent bacteria such as staphylococci. The defendant also testified that pseudomonas is always present in plaintiff's skin and is an organism that is easily killed off by a healthy blood supply. In addition, the defendant found support in plaintiff's own expert witness, Dr. Robbins, who amputated plaintiff's leg. Dr. Robbins testified that the infection could have been arrested and cured if plaintiff had checked into the hospital on October 1, 1974. Thus, this testimony raises a question as to the proximate cause of plaintiff's injury. Further, Dr. Nyman's testimony that defendant's treatment met the standard in effect in Kane County could serve as a proper basis for a jury's verdict in favor of the defendant. Based upon these facts, the trial court did not err in failing to enter a judgment n.o.v.

We find that the trial court was not in error by instructing the jury on the issue of contributory negligence. The record reveals several actions by plaintiff that the jury could have concluded contributed to the nonunion and the ultimate amputation. Therefore, on the evidence admitted, the jury was properly instructed as to plaintiff's contributory negligence.

Plaintiff claims that the court committed prejudicial error in limiting his redirect examination of Dr. Robbins. However, we find the record shows that the plaintiff was allowed to subsequently bring out on redirect examination the matters about which he objects.

Plaintiff also alleges that the jury should have been given an instruction on wilful and wanton conduct. He asserts that failure to treat the pseudomonas after the first culture was negligence, but failure to treat it after several examinations constituted wilful and wanton conduct. We disagree. As already indicated, the testimony of defendant, of Dr. Nyman, and of plaintiff's expert, Dr. Robbins, indicated that defendant's treatment may have been proper. This court has defined a wilful and wanton act as one that intentionally causes injury or one committed under circumstances exhibiting a reckless disregard for the safety of others. (E.g., Hocking v. Rehnquist (1969), 44 Ill.2d 196, 201.) Inasmuch as the evidence in this case presents the possibility that defendant's treatment may have been proper, there is nothing in the record to indicate that defendant intentionally caused plaintiff's injury, or that he acted in reckless disregard for plaintiff's safety. Consequently, it cannot be said that the trial court erred in failing to give the jury an instruction on wilful and wanton conduct.

We next consider plaintiff's argument that the trial court erred in allowing his hospital records to be admitted into evidence without proper foundation, and in permitting a ...


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