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03/18/96 MERCEDES ALVARADO v. IRAIDA PINEIRO GOEPP

March 18, 1996

MERCEDES ALVARADO, PLAINTIFF-APPELLEE,
v.
IRAIDA PINEIRO GOEPP, D.D.S., DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RONALD C. RILEY, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

Plaintiff, Mercedes Alvarado, filed a dental malpractice suit against defendant, Dr. Iraida Pinerio Goepp. After trial, the jury returned a verdict in plaintiff's favor in the amount of $105,003. Defendant appeals from the trial court's order denying her post-trial motion.

Plaintiff has not filed a brief in this appeal. Therefore, we will address defendant's contentions under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).

Defendant presents two issues for review: (1) Whether the trial court erred in admitting habit testimony; and (2) Whether the jury award was excessive.

We reverse and remand.

FACTS

Plaintiff, Mercedes Alvarado (Alvarado), filed a complaint alleging dental malpractice against defendant, Dr. Iraida Pineiro Goepp (Dr. Goepp). Plaintiff's third amended complaint alleged that Dr. Goepp treated plaintiff from May 1985 until October 1986. Plaintiff alleged that Dr. Goepp committed one or more of the following acts or omissions: failed to take a proper or adequate history from plaintiff; failed to prepare a proper or adequate treatment plan; failed to follow a traditional sequence of treatment; failed to perform or arrange to have performed certain root canal treatments; applied an inadequate or faulty bridge on the plaintiff's teeth; failed to use a proper temporary bridge on plaintiff's teeth while treatment was in progress; and failed to complete plaintiff's treatment.

Prior to trial, defendant filed a motion in limine to bar Dr. Linda Pina (Dr. Pina) from testifying as to Dr. Goepp's office routine or habit. Defendant argued that "in Illinois the only time habit or custom is admissible to prove negligence is in wrongful death cases where there is no competent eyewitnesses" and that since eyewitness testimony was available, the habit testimony should have been precluded. After argument, the court denied the motion.

At trial, evidence was adduced regarding Dr. Goepp's course of treatment of the plaintiff.

The evidence deposition of Maria Lysinka was read to the jury. Lysinka was employed by Dr. Goepp as a dental assistant from 1984 to December 1986. In her capacity as a dental assistant, Lysinka was always present in the room with Dr. Goepp when she was treating a patient. Dr. Goepp saw plaintiff for an emergency visit for a tooth extraction. On July 26, 1985, Dr. Goepp and plaintiff discussed a treatment plan for saving or restoring plaintiff's teeth. Plaintiff requested Dr. Goepp to save as many teeth as possible. Dr. Goepp posed several alternative treatment plans to plaintiff. Dr. Goepp also advised plaintiff of the cost of each plan.

Dr. Pina testified that she was a dentist who worked as an independent contractor in Dr. Goepp's office for about six months, until the spring of 1986. Dr. Pina testified she observed Dr. Goepp "often" failed to have a treatment plan, which often led to disputes with patients over money. Dr. Pina left Dr. Goepp's office because "every other ...


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