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07/12/96 CAROL SENDERAK AND THOMAS SENDERAK v.

July 12, 1996

CAROL SENDERAK AND THOMAS SENDERAK, PLAINTIFFS-APPELLANTS,
v.
MARILYN MITCHELL, M.D., AND CARL CUCCO, M.D., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 90 L 3217. The Honorable Edward G. Finnegan, Judge Presiding.

Released for Publication August 29, 1996.

The Honorable Justice Hourihane delivered the opinion of the court: Mcnulty, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: Hourihane

JUSTICE HOURIHANE delivered the opinion of the court:

Plaintiffs, Carol Senderak and Thomas Senderak, brought a medical malpractice action against defendants, Marilyn Mitchell, M.D. and Carl Cucco, M.D. A jury ultimately returned a verdict for Carol in the amount of $683,927.11 and for Thomas in the amount of $465,125.00. Defendants filed a post-trial motion seeking either judgment notwithstanding the verdict or a new trial on the issue of damages. The circuit court granted defendants a new trial. We allowed plaintiffs' appeal of the order pursuant to Supreme Court Rule 306(a)(1). 134 Ill. 2d R.306(a)(1). We affirm the circuit court's order granting a new trial, but modify it to reflect that the new trial will be limited to damages only.

Background

In 1988, Carol Senderak (Carol) was referred to Dr. Mitchell by her general practitioner, Dr. Linda Henriksen after a Pap smear indicated some gynecological abnormalities. Dr. Mitchell performed further examinations which revealed the presence of lesions in Carol's reproductive tract. After reviewing the exam results, Dr. Mitchell decided to remove the lesions by way of a surgical procedure known as a "conization." Dr. Mitchell and co-defendant Dr. Cucco performed the procedure. However, complications arose when Carol began to hemorrhage. Eventually, defendants concluded that the only way to contain the persistent hemorrhaging was to perform an emergency hysterectomy. Carol underwent that surgery without further problems.

The issue at trial was whether defendants improperly and inadequately performed both the conization and the hysterectomy. The jury ruled in favor of the plaintiffs.

Defendants filed a post-trial motion seeking judgment notwithstanding the verdict. Defendants contended that the trial judge should not have permitted Dr. Stephen Myers to testify as plaintiffs' expert. Alternatively, defendants asserted that the jury instructions regarding the loss of society of unborn and unconceived children wrongly stated the applicable law.

After a hearing on the above motion, defendants filed an amended post-trial motion clarifying that the alternative request for relief was for a new trial on the issue of damages. To that end, the amended motion challenged, as excessive, the damages awarded for future pain and suffering because of the impropriety of the loss of society instruction.

The circuit court denied defendant's motion for judgment notwithstanding the verdict, but granted a new trial because the court found, without further explanation, that the "jury verdict [was] against the manifest weight of the evidence."

Analysis

We begin our analysis by noting that the trial judge did generally state on the record that the reason for his allowance of the new trial was that the "jury verdict [was] against the manifest weight of the evidence." The trial judge did not elaborate or make any other specific findings. Plaintiffs have taken the position that the judge based his ruling solely on defendants' argument regarding the jury instruction. Had the judge ruled on the expert witness issue, they argue, he would have entered a judgment notwithstanding the verdict because plaintiffs would not have been able to prove the requisite breach of the standard of care necessary to prevail in a medical malpractice negligence action. *fn1 Thus, plaintiffs' arguments focus upon the propriety of the given jury instructions. Plaintiffs insist that this court cannot review the expert witness issue because the circuit court denied defendants' motion for judgment notwithstanding the verdict. However, Supreme Court Rule 306(a) allows this court to review all rulings made by the circuit court on the post-trial motion without the necessity of a cross-petition. See 134 Ill. 2d R.306(a). Therefore, we may assess the circuit court's determination regarding the denial of defendants' motion for judgment notwithstanding the verdict.

In establishing an expert physician's competency to testify, the proponent must show that the physician is a licensed member of the school of medicine about which he is to testify. In addition, the party offering the witness must show that the witness "is familiar with the methods, procedures, and treatments ordinarily observed by other physicians, in either the defendant physician's community or a similar community." Jones v. O'Young, 154 Ill. 2d 39, 43, 607 N.E.2d 224, 180 Ill. Dec. 330 (1992). If the proponent fails to satisfy either of these foundational requirements, the circuit court must disallow the expert's testimony. Purtill v. Hess, 111 Ill. 2d 229, 244, 489 N.E.2d 867, 95 Ill. Dec. 305 (1986). On the other hand, if the foundational requirements have been met, ...


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