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Sidorewicz v. Kostelny

OPINION FILED DECEMBER 28, 1981.

NELLY SIDOREWICZ, A MINOR, BY HEIDE SIDOREWICZ, HER MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

DR. JOHN KOSTELNY, M.D., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. BRIAN DUFF, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This is an appeal from a jury verdict in favor of defendant in which plaintiff had alleged malpractice. On appeal, she asserts that (1) the trial court erred in preventing her counsel from discussing the anticipated instructions with the jury; (2) reversible error was committed when defendant's counsel stated to the jury that the court's failure to direct a verdict against defendant meant that his admission of fault was not an admission of medical malpractice; and (3) reversible error was committed when defendant's counsel implied that defendant was not insured. A complete recitation of the facts is not necessary here as plaintiff claims no error up until closing arguments.

On November 17, 1976, Nelly Sidorewicz filed a complaint against defendant, an obstetrician and gynecologist, alleging that he had negligently provided medical care to her during her birth, which resulted in an injury to her right brachioplexis.

The day before closing arguments, defense counsel presented a motion in limine restricting the attorneys from implying insurance was or was not involved in this matter.

Closing arguments were held on July 17, 1980, and the following colloquy occurred between plaintiff's counsel and the trial court:

"MR. GOLDBERG: * * *

Our burden isn't like in a criminal case where it has to be beyond a reasonable doubt.

THE COURT: I will instruct the jury on the law.

MR. GOLDBERG: I believe the Court will tell you it's more probable true than not. That simply means — you recall the scales of justice —

THE COURT: I will instruct the jury on the law.

MR. GOLDBERG: I'm just describing the scales of justice. I'm not —

We have to meet a burden, and it is the type of decision that you and I make every day. It's the type of decision that we're asking, under the circumstances, you to follow. It simply means, for example —

THE COURT: I will instruct the jury on the law, and you won't tell them what it means. That's the third time, and I don't want you to proceed.

MR. GOLDBERG: All right. Now, with regard to the plaintiff's burden of proof, there are three things that we have to prove. One is that the defendant is ...


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