Appeal from the Circuit Court of Champaign County; the Hon.
George S. Miller, Judge, presiding.
JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT:
Plaintiff filed a complaint against Dr. Fred Sukkar alleging negligence in post-operative care which defendant provided her. The case was heard before a jury in Champaign county circuit court and a verdict was returned in favor of the defendant. Plaintiff's post-trial motion for a new trial was denied. Plaintiff claims error by the trial court on several rulings made during the course of the trial and seeks a new trial.
The issues raised here require only a brief summary of the facts presented at trial. Plaintiff's forearm was severely injured on March 19, 1977. On March 22, 1977, defendant operated on the arm and thereafter continued treatment. Defendant used a surgical technique known as ASIF. It involves using metal plates and screws to join together and promote the healing of bone fractures. The technique was developed in Switzerland and the standards for its use are of a universal character. Plaintiff's arm failed to heal properly, which necessitated a further operation which was performed by defendant. When the arm still failed to heal, plaintiff had a third operation which was done by another physician.
Plaintiff apparently did not claim negligence in the surgery itself, but rather maintained defendant was negligent in his instructions and warnings to plaintiff regarding her returning to work and using the injured arm. Defendant's failure to sufficiently instruct plaintiff allegedly led to the overuse of the arm and its failure to heal properly. Plaintiff called Dr. David L. Becker of Milwaukee, Wisconsin, as an expert witness. Becker testified that he is an orthopedic surgeon licensed to practice in Wisconsin since 1969. He is engaged in a group practice. He had never seen plaintiff before trial. He admitted that his evaluation and testimony regarding defendant's care of plaintiff's injury was done for remuneration. Prior to the present case, Becker had testified in one previous trial. However, he had done other evaluations and given evidence depositions for both plaintiffs and defendants. Between 1976 and 1980, Becker gave between 30 and 50 such consulting opinions. Becker's testimony was based on national standards for the use of the ASIF technique. In his opinion, based on such national standards, the warnings and instructions given by defendant to plaintiff regarding the use of her arm were inadequate.
• 1 During defendant's closing arguments, the following exchange took place:
"Dr. Becker and Mr. Gadau say this surgery met the standards yet it wasn't very good. They also say it wasn't very good yet it would have worked if there wasn't activity by Mrs. Hunter. They work it both ways because in doing so and Dr. Becker has an interest in doing so and persuaded to the Plaintiff's
MR. GADAU: I object. There's no evidence that Dr. Becker has any interest in this litigation.
THE COURT: That's overruled. That's a fair statement." (Emphasis added.)
Defense counsel then continued his closing argument in which course he made the following statements to which plaintiff raised no objections:
"Mrs. Hunter and Dr. Sukkar are bias[ed], interested witnesses. They think they're right. So you take that into account when you listen to them.
I suggest to you that Dr. Becker is bias and interested in this case. Dr. Becker is a professional witness. Dr. Becker testifies all the time. He said I've only testified in court once before today. He has given numerous evidence depositions. * * * So Dr. Becker testifies frequently. He said, when asked him, if it wasn't true from 1976 to January of 1980, a period of more than three and a half years, four years, he had 30 to 50 consultations, but he wanted to be sure that I understood not just in Illinois; that takes him outside. How much does that man practice orthopedics? He is actively engaged in appearing before jurys, and I suggest to you that the other doctor in this case, Dr. Bussey, who spends all of his time practicing orthopedics, who doesn't travel here and there and I don't know where to testify, is a person who doesn't have an interest other than that he wants to say what his opinions are to you and he did. * * * I suggest that you discount and disregard Dr. Becker's testimony. He is a hired gun and he is not worthy of your credit." (Emphasis added.)
On appeal, plaintiff objects to those portions of the above comments to which emphasis has been added and contends they are so improper and prejudicial that plaintiff was denied a fair trial.
"Counsel in the case are officers of the court and owe a duty to the court, to opposing counsel, to the cause of justice and to themselves." (Eizerman v. Behn (1956), 9 Ill. App.2d 263, 286, 132 N.E.2d 788, 799.) "The purpose of a closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. Considerable latitude of expression on anything that is in evidence must be allowed counsel." (Hopwood v. Thomas Hoist Co. (1966), 71 Ill. App.2d 434, 443, 219 N.E.2d 76, 81.) "The closing arguments of counsel must be confined to those matters that are in evidence or admitted and uncontroverted." (Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill. App.3d 656, 661, 315 N.E.2d 63, 67.) "It is not improper for an attorney to question either the credibility or judgment of a witness upon any legitimate ground, but an attorney has no right to indulge in ...