Appeal from the Circuit Court of Rock Island County; the Hon.
Wilbur S. Johnson, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Mary Smith, plaintiff-decedent's administratrix, brought a medical malpractice action against Dr. Harold M. Perlmutter, M.D., in the circuit court of Rock Island County. A judgment was entered upon a jury verdict finding for the defendant. Plaintiff appeals from the judgment and order denying her post-trial motion requesting a new trial. We affirm.
Plaintiff asserted defendant negligently failed to fully diagnose, properly treat or refer the decedent, Willard Smith, to a specialist for medical treatment for his coronary artery disease. As a result Smith was found dead at the YMCA shortly after jogging in the late afternoon. An autopsy revealed death was caused by severe coronary artery disease.
Defendant asserted he was not negligent and that he met the applicable standard of practice in his care and treatment of Smith. Perlmutter is a board-certified general surgeon who has been practicing in Rock Island County since 1950. Approximately 70% of his practice is devoted to general medicine.
Smith had been a patient of Perlmutter's since 1963. On March 10, 1981, Smith had an office visit with Perlmutter at which time the office record reflects he had a complaint of "chest pains." Due to an order in limine, no evidence was allowed as to what Smith told Perlmutter about these chest pains.
Perlmutter scheduled Smith for an electrocardiogram (EKG) and a chest X ray at Illini Hospital. Smith's chest X ray was read as normal. His EKG test was reported as "Abnormal" and the findings were interpreted by Dr. Pogue as possible "ischemic in origin" or otherwise possibly related to coronary artery obstruction. No evidence was allowed as to what Perlmutter told Smith about the results of the EKG, also because of the order in limine. Smith was not further seen by Perlmutter for over 10 months, or until several weeks before his death in January of 1982. Dr. Perlmutter, Dr. Coleman, Dr. Pogue, Dr. Kleinschmiett and even plaintiff's expert, Dr. Mayron, agreed that how the patient describes the pain to his physician is extremely important in diagnosing angina. Out of the six doctors who testified at trial, only Dr. Mayron felt Perlmutter had done anything wrong in his care and treatment of Smith.
• 1 The decision of a trial court to grant or deny a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown. (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill.2d 140, 357 N.E.2d 500.) In determining whether that discretion was abused, the reviewing court will consider whether the jury's verdict was supported by the evidence and whether the losing party was denied a fair trial. Bradley v. Caterpillar Tractor Co. (1979), 75 Ill. App.3d 890, 394 N.E.2d 825.
• 2 It is plaintiff's contention that she was denied a fair trial. This argument is premised on plaintiff's assertion the defendant violated the court's order in limine. The court ordered:
"The defendant, his counsel and all interested persons called to testify by the defendant should be instructed that they are incompetent under the Dead Man's Act to attempt to testify directly or voluntarily, comment, suggest or infer upon any content of conversation between the decedent and the defendant, Harold M. Perlmutter, M.D."
Plaintiff first alleges that the following hypothetical questions posed to the defendant violated the court's order in limine:
"Q. Doctor, if a patient of yours came to your office and said they had been awakened early in the morning that morning around 2:00 or 3:00 a.m., and if this patient said they had had chest and left arm discomfort as that described by Mrs. McKnight [the former Mrs. Smith], that she observed her husband experiencing, what would your customary practice be?"
Q. Doctor, if a patient of yours came into your office and said they had experienced some chest pain, discomfort, while cutting the grass, similar to that described by Mrs. McKnight that she observed her husband experiencing and that was related to you, what would you do?"
Initially we must note that at no time during or after Perlmutter's direct examination in connection with the hypothetical questions did plaintiff's counsel object to either the question posed or the responses given. A party's failure to timely object during trial waives any alleged error unless the errors complained of are so pervasive as to prevent the litigants from receiving a fair trial. Blake v. Delhotel (1976), 39 Ill. App.3d 725, 350 N.E.2d 880.
In the instant case evidence was introduced by plaintiff at trial that Mrs. Smith observed Willard Smith experiencing severe chest pains while he was mowing the lawn at his home in the fall of 1980. Smith did not seek any medical care for the incident. Mrs. Smith further testified that some months later around 2 a.m. or 3 a.m., the morning of March 10, 1981, she awoke from her sleep and observed Smith sitting at the edge of their bed holding his ...