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06/28/96 APRIL GARCEZ v. FRITZ MICHEL

June 28, 1996

APRIL GARCEZ, A MINOR, BY AND THROUGH CHICAGO TITLE AND TRUST COMPANY, THE GUARDIAN OF HER ESTATE, PLAINTIFF-APPELLANT,
v.
FRITZ MICHEL, MICHEL-PICKEN ASSOCIATES, S.C., KEITH KNAPP, SR., AND KNAPP MEDICAL CENTER, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 90-L-20183. Honorable Irwin J. Solganick, Judge Presiding.

Rehearing Denied August 2, 1996. Released for Publication August 13, 1996.

The Honorable Justice Theis delivered the opinion of the court: O'brien, J., concurs. Cahill, J., dissents.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

The plaintiff, April Garcez ("April"), through her guardian, Chicago Title and Trust Company ("Trust"), sued defendant physicians to recover damages arising from their alleged medical negligence in connection with her birth. Prior to trial, plaintiff settled with defendant Mercy Hospital and Medical Center ("Mercy"), resulting in the dismissal of several codefendants from the action. During the course of the trial, the court permitted defense counsel to reveal the existence of the settlement agreement. The jury rendered its verdict in favor of defendants, and plaintiff appealed.

On appeal, plaintiff alleges the following errors: (1) the trial court failed to grant its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial; (2) the trial court improperly denied its motion in limine to bar any reference to the settlement agreement; (3) defense counsel's comments during closing argument prejudiced plaintiff; and (4) the trial court erred in barring plaintiff from exhibiting her injuries to the jury. Because we find that the trial court abused its discretion in permitting reference to the settlement agreement, we reverse and remand for a new trial.

In 1987, Colleen Chaplain ("Chaplain") was an expectant mother receiving prenatal care from Dr. Keith Knapp Sr. ("Dr. Knapp"). Dr. Knapp was Chaplain's personal physician, not a certified gynecologist or obstetrician, with delivery privileges at Mercy. Dr. Knapp incorrectly assessed Chaplain's delivery date to be May 22, 1988.

On April 14, 1988, Chaplain was admitted into Mercy for the delivery of her child. She was treated by two obstetrical residents, Dr. Stewart Kernes ("Dr. Kernes") and Dr. Harshavadan Vyas ("Dr. Vyas"), and Nurse Erlinda Azcona ("Nurse Azcona"). Dr. Kernes consulted Dr. Knapp about Chaplain's pregnancy, who directed Dr. Kernes to contact board certified obstetrician and gynecologist Dr. Fritz Michel ("Dr. Michel"). Though Chaplain's pregnancy was in full term, Dr. Kernes incorrectly believed she was experiencing premature labor.

After consulting with the residents over the phone, Dr. Michel directed the residents to administer drugs to slow the progression of premature labor. Chaplain's labor, however, continued and she complained of severe pains. Chaplain's response was consistent with the occurrence of placental abruption, a condition in which the placenta tears away from the uterus and disrupts the flow of oxygen to the fetus.

In the complaint, plaintiff alleged that the defendants' negligence prevented them from diagnosing Chaplain's condition and ordering a Caesarean section in a timely fashion. Plaintiff claimed that as a result of this negligence, April suffers from severe central nervous system damage and cerebral palsy. Plaintiff sued Mercy, Dr. Knapp, Dr. Michel, Dr. Kernes, Dr. Vyas, and Nurse Azcona.

Prior to trial, plaintiff entered into a settlement agreement with Mercy, releasing defendants Dr. Kernes, Dr. Vyas and Nurse Azcona from the suit. The case proceeded against Dr. Knapp and Dr. Michel. Plaintiff moved to bar evidence of the settlement agreement at trial. At a hearing, the trial court denied plaintiff's motion, ruling that defendants did not need to show that the agreement had the potential to bias the witnesses' testimony in order to reveal its existence. While the ruling allowed defendants to cross-examine the previous defendants as to their bias, the court prohibited defendants from inquiring about the settlement and negotiations for any other purpose.

During closing arguments, however, defense counsel made reference to the adequacy of the settlement amount in relation to April's damages. Without revealing the amount of the settlement, counsel stated that after receiving the settlement proceeds from Mercy, "this case should have been entirely dropped" and that "there is no evidence that [April's] not getting cared for." Furthermore, the defense suggested that the settling defendants were truly responsible for April's injuries and "maybe that's why they settled the case." Finally, counsel stated that plaintiff had a "novel theory *** I'm never going to use it, but I like it. *** Sue them, settle them, make them the star" witnesses against the remaining defendants, Dr. Knapp and Dr. Michel. After deliberations, the jury returned a verdict for defendants.

It is within the sound discretion of the trial court to determine whether questions concerning settlement and the former party status of a witness are appropriate. Boey v. Quaas, 139 Ill. App. 3d 1066, 487 N.E.2d 1222, 94 Ill. Dec. 345 (1986). As a general rule, however, matters concerning settlement and negotiations are not admissible. Barkei v. Delnor Hospital, 176 Ill. App. 3d 681, 531 N.E.2d 413, 126 Ill. Dec. 118 (1988). Courts cite two primary concerns in prohibiting the admission of such evidence: (1) an agreement to settle does not constitute an admission of guilt and is therefore irrelevant; and (2) admitting evidence of settlements and negotiations would contravene public policy by discouraging litigants from settling before trial. Barkei v. Delnor Hospital, 176 Ill. App. 3d 681, 531 N.E.2d 413, 126 Ill. Dec. 118 (1988).

Defendants correctly note, however, that inquiries into the motives or bias of a witness are appropriate in order to test his or her credibility. Boey, 139 Ill. App. 3d 1066, 487 N.E.2d 1222, 94 Ill. Dec. 345. The Illinois Supreme Court has recognized "if an extrajudicial agreement has the potential to bias a witness' testimony as to a relevant issue, disclosure is necessary to maintain the fairness and integrity of our judicial ...


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