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10/21/88 Smith, Deceased, v. Paul Menet Et Al.

October 21, 1988





530 N.E.2d 277, 175 Ill. App. 3d 714, 125 Ill. Dec. 249 1988.IL.1558

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. DUNN, J., concurs. JUSTICE NASH, Dissenting.


This is a medical malpractice action brought by plaintiff, William Smith, against defendants, Paul Menet and Glen Ellyn Clinic. A jury returned a verdict in favor of plaintiff and assessed damages at $630,000, which amount was reduced by 33% for comparative negligence to $422,100. Defendants timely appealed. We reverse.

It appears from the record that plaintiff died on March 25, 1988. Plaintiff's spouse, Viola Smith, was thereafter appointed by this court as special administrator and substituted for plaintiff. (Order of April 5, 1988.)

Plaintiff, William Smith, began treatment with defendant, Dr. Paul Menet, on March 8, 1984. Plaintiff had been diagnosed for diabetes in 1973. In March 1984, he went to the Glen Ellyn Clinic feeling he needed a physical exam and help with his diabetes, which had gotten out of control. The primary issue in this case is whether Dr. Menet was negligent in failing to diagnose and inform plaintiff that he had cancer. Further facts will be developed where relevant to our Disposition in the case.

We initially note that plaintiff has asked that the statement of facts in defendants' brief be stricken as argumentative. We decline to do so. In the instant case, the statement of facts is not so flagrantly argumentative as to hinder or preclude review. Consequently, we do not strike the statement of facts in defendants' brief. See James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452.

Defendants contend that the evidence failed to sustain plaintiff's burden of proof. Defendants argue that in order to succeed on his complaint, plaintiff had to prove that Dr. Menet's treatment of plaintiff fell below acceptable medical standards. Defendants argue that plaintiff's expert witness only testified that Dr. Menet's treatment of plaintiff fell below good medical care. Defendants further argue that good medical care is a higher standard than acceptable medical care.

In response, plaintiff claims that this issue has been waived due to the fact that defendants did not properly object to Dr. Golomb's testimony. Plaintiff further contends that he met his burden of proof. Although plaintiff contends that defendants' argument has been waived for failure to object, the record indicates that defendants did object to the question based on the foundation, the form, and the wording as being inconsistent with the instructions on standard of care. We find these objections were sufficiently specific to preserve defendants' argument.

A plaintiff must establish the standard of care against which the defendant's conduct is measured and further prove that, Judged in the light of this standard, the defendant was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff. Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423; see also Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 1126-27.

The jury was properly instructed with the Illinois Pattern Jury Instruction which provides that in treating a patient, a doctor must possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified doctors in the locality in which he practices or in similar localities in similar cases and circumstances, and that failure to do so is a form of negligence that is called malpractice. Illinois Pattern Jury Instructions, Civil, No. 105.01 (2d ed. 1971); see also Northern Trust Co., 81 Ill. App. 3d at 1126-27.

In the instant case, the following colloquy occurred:

"Q. Based upon your review of these materials, Doctor, and mindful of the factual dispute that's in this case and assuming for the purpose of this question that Dr. Menet did not recommend further diagnostic studies to Bill Smith following the two X-rays that were taken at Glen Ellyn Clinic and told him that the abnormality shown on those films was old scar tissue, do you have an opinion, based upon a reasonable degree of medical certainty and as a Board-certified and practicing specialist in the field of internal medicine, as to whether or not Dr. Menet's conduct fell within the standard of good medical care in attending Mr. Smith?


A. Yes, sir, I do have an opinion.


Q. And what is that opinion?

A. That further evaluation was indicated on the visit of April 5th, 1984, and that not to do further evaluation to try to come to a diagnosis of the X-ray ...

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