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07/23/87 Alice F. Monier, v. Lee F. Winkler

July 23, 1987

ALICE F. MONIER, PLAINTIFF-APPELLANT

v.

LEE F. WINKLER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

511 N.E.2d 246, 158 Ill. App. 3d 724, 110 Ill. Dec. 411 1987.IL.1057

Appeal from the Circuit Court of Sangamon County; the Hon. Raymond L. Terrell, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Plaintiff, Alice F. Monier, brought an action to recover damages occasioned by the alleged negligent medical care and treatment rendered to her by the defendant, Lee F. Winkler, on April 20, 1978, and June 15, 1979. After a jury trial in the circuit court of Sangamon County, a verdict was returned in favor of the defendant upon which the court entered judgment. The plaintiff filed a post-trial motion alleging errors in the following respects: (1) the verdict was against the manifest weight of the evidence; (2) the defendant's office records were hearsay and should not have been admitted into evidence; (3) the jury was improperly instructed on the issues; and (4) the jury was improperly instructed on the standard of care. We affirm.

Plaintiff alleged in her complaint that she sought medical treatment from the defendant for a mole on her left leg which had been changing in size and shape. Defendant did not treat her for this problem. Plaintiff later discovered the condition was a malignant melanoma for which she required surgery. Plaintiff returned to the defendant for post-operative care and defendant diagnosed her condition at that time as arthritis. Plaintiff required further surgery for the removal of lymph nodes resulting in disfigurement and disability in her left leg.

The testimony at trial presented a direct conflict between what plaintiff claims she told defendant were her complaints when she sought his help and what defendant recalls being told. Plaintiff testified that in the early spring of 1978 she was sick and very tired much of the time and she also noticed that a mole on her left leg, which she had had all of her life, was beginning to get darker, larger and crusty. She called it to the attention of her husband and they decided she should see the defendant about it as he had been her primary physician since 1957.

Plaintiff made an appointment to see defendant for April 20, 1978. Prior to her appointment, she testified, she also experienced some back problems. She testified that when she reported for her appointment on April 20, defendant's office nurse asked her why she was there and plaintiff testified she told her she had been feeling sick and had this mole that was changing.

When plaintiff saw defendant on April 20, she testified she told him about the mole on her left leg and the fact it had been getting bigger and darker and was developing a crust. She testified she did not recall telling the defendant about any other problems, specifically those of her back. She did recall defendant had her lie on her back and he checked her gallbladder.

Plaintiff testified that during the course of the examination, defendant sat at his table and wrote as he always did when he examined her. Defendant did not examine her mole. Plaintiff left defendant's office without asking him to examine her mole and she never requested him to look at it again. She testified she had confidence in defendant and since he had previously performed surgery on her leg and, hence, would have seen the mole at that time, there was nothing to worry about. Defendant did not, however, remove plaintiff's slacks on April 20 in order to see the mole.

Plaintiff testified that during the summer of 1978 her symptoms grew worse. She stated she did not seek further medical attention, however, because she was confident in defendant. In September of 1978 plaintiff went with her husband to the Mayo Clinic, where he was being treated for a back injury, and while there she made an appointment for a complete physical examination. She stated that she did not make the appointment because of any fear about the mole because she assumed that if defendant did not want to look at it back in April, it presented no problem to her health.

During the course of plaintiff's physical at Mayo, the examining doctor noticed the mole and referred her to a plastic and reconstructive surgeon. The surgeon, Dr. John Woods, diagnosed the mole as malignant and surgically removed it. She was instructed as part of her post-operative care to conduct self-examinations for lumps in various susceptible areas of her anatomy.

Plaintiff returned to Springfield, although she saw Dr. Woods for follow-up care in January 1979 and again on June 1, 1979. At neither of these times was any spread of the cancer noted.

Plaintiff testified that on June 10, 1979, she noticed a lump in her left groin and made an appointment to see defendant, informing him by telephone that she had been treated for a malignant mole and had found a lump in her groin.

On June 15, 1979, defendant examined plaintiff, noted a mass in the area where she complained of a lump and diagnosed arthritis. He ...


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