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05/18/87 Elouise Webb, v. Richard T. Angell Et Al.

May 18, 1987

ELOUISE WEBB, PLAINTIFF-APPELLANT

v.

RICHARD T. ANGELL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 508, 155 Ill. App. 3d 848, 108 Ill. Dec. 347 1987.IL.641

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

This is an appeal from entry of judgment on a jury verdict which found the defendants, Dr. Richard Angell and Dr. Richard Nelson, not guilty of medical malpractice in their care and treatment of the plaintiff, Elouise Webb. Plaintiff alleges that: (1) she was denied a fair trial by prejudicial argument and misconduct by defense counsel; (2) the trial court abused its discretion by refusing to give four jury instructions tendered by plaintiff; and (3) the trial court abused its discretion by making certain evidentiary rulings.

Plaintiff, Elouise Webb, turned to reach for tissue in her bathroom on the morning of December 27, 1974, and was suddenly stricken with an extremely painful headache and vomiting. She was taken to the hospital by ambulance and examined in the emergency room by Dr. Carbon, her family physician, and Dr. Cox. Plaintiff had an extensive and lengthy history of neck and head ailments prior to this incident, including two whiplash injuries in the preceding six years. She was afflicted with degenerative arthritic changes in the cervical spine and had been treated repeatedly for neck and head pain in 1973 and 1974. Both Dr. Cox and Dr. Carbon concluded that plaintiff was suffering from the arthritic condition in her cervical spine, and Dr. Carbon referred her to Dr. Angell, an orthopedic surgeon.

Dr. Angell began a course of treatment for the condition in plaintiff's neck. He continued this treatment for several days. On December 28, 29, and 30, plaintiff seemed to improve, but the headaches persisted. For the next two days plaintiff complained off and on about headaches, and her condition did not appear to change significantly. On January 2, 1975, plaintiff complained of a persistent severe headache, and Dr. Angell called in defendant Dr. Nelson, a neurologist. Dr. Nelson gave plaintiff a neurological examination, reviewed her medical history, and recommended continuation of treatment for the arthritis in her neck.

On January 3, 1975, plaintiff complained of severe headaches, nausea, and sensitivity to light. Dr. Nelson did another neurological exam and again recommended continuation of the treatment she had been receiving. Plaintiff was reported to be feeling better on January 4, but worse on January 5, complaining of aches all over her body. Dr. Nelson ordered an electroencephalogram. The next evening, January 6, plaintiff suffered a hemorrhage from a ruptured aneurysm in her head and went into a coma which lasted for six days.

Subsequently, plaintiff brought suit against Dr. Angell and Dr. Nelson alleging that they negligently failed to diagnose and treat an aneurysm prior to January 6, 1975.

At trial, testimony was given by numerous witnesses including plaintiff, both physician-defendants, and expert witnesses for all parties. The jury found the defendants not guilty of medical malpractice. Plaintiff's post-trial motion was denied, and this appeal was then timely filed.

Defendants have filed a motion to strike all or part of plaintiff's appellate brief, asserting that it does not comply with the Supreme Court Rule 341(e)(7) requirement that argument in an appellant's brief must cite to supporting authority and the pages of the record relied on. (87 Ill. 2d R. 341(e)(7).) After reviewing the allegations and support thereof in defendants' motion, as well as plaintiff's responses to those allegations, we conclude that the motion to strike should be granted, not as to the entire brief, but as to the specific arguments and factual assertions challenged by the motion. The matter stricken will not be considered in our resolution of the issues before us.

Plaintiff's first contention is that prejudicial argument and misconduct by defense counsel denied her a fair trial. In her brief, she sets forth seven specific instances of alleged impropriety by defense counsel. The allegations of one of those instances has been stricken pursuant to our grant of defendants' motion mentioned above. As for the remaining allegations, after careful consideration of the record before us, we conclude that some of defense counsel's conduct and argument may have been at least questionable. We also find, however, that plaintiff failed altogether to object to one of those arguments and failed to object to a major segment of another. Her failure to object is considered a waiver of objections. (Cahill v. Boury (1986), 144 Ill. App. 3d 413, 415, 494 N.E.2d 256.) In addition, the trial court sustained plaintiff's objections in regard to two other matters and instructed the jury to disregard counsel's improper comments. When the trial court sustains the objections and instructs the jury to disregard, any prejudice to plaintiff is deemed to have been cured. 144 Ill. App. 3d 413, 415, 494 N.E.2d 256.

Plaintiff insists that when the argument and misconduct of counsel is so prejudicial as to deny a litigant a fair trial, the instances of misconduct may be considered despite the failure to object and despite corrective steps taken by the trial Judge. Plaintiff correctly states the law. (Mileur v. Briggerman (1982), 110 Ill. App. 3d 721, 727, 442 N.E.2d 1356; Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 729-30, 381 N.E.2d 383.) In the instant case, however, we are persuaded by our review of the record that the relevant behavior of counsel was not so prejudicial as to have denied plaintiff a fair trial. Therefore, we will address only the three challenged occasions of misconduct which were neither waived nor cured at trial.

Plaintiff first complains that counsel for Dr. Nelson manufactured a defense for his client during closing argument to the jury. In the argument complained of counsel described the successive steps in a neurologist's diagnostic work-up for a patient such as plaintiff. One of the steps mentioned was a spinal tap. Counsel explained that caution would be exercised in deciding when to do a spinal tap since a problem in the spine, such as plaintiff's osteoarthritis, might require a myelogram to be done. Timing was important where a myelogram might be necessary since, once a spinal tap was done, a myelogram could not be done for about two weeks. Plaintiff objects to this argument because a spinal tap is the necessary procedure for determining if a patient is bleeding in the brain. She asserts that pointing out the timing problem between a myelogram and a spinal tap was improper since the evidence showed that Dr. Nelson had not considered doing a spinal tap on plaintiff prior to the January 6 rupture. She also asserts that there was no evidence that plaintiff had a herniated disc which would require a myelogram. Plaintiff concludes that counsel's argument provided an unfounded excuse for nonperformance of a spinal tap.

We note first that plaintiff did not object to counsel's overall argument at trial. There was, however, objection to a remark that if Dr. Nelson had done a spinal tap and it proved to be error, the doctor would be in court over that issue. The objection was immediately sustained, and the jury instructed to disregard the comment. Thus, any prejudice from that specific remark was cured. (Cahill v. Boury (1986), 144 Ill. App. 3d 413, 415, ...


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