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September 8, 1997


Appeal from the Circuit Court of Madison County. No. 91-L-950. Honorable P. J. O'Neill, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court Welch, J., concurs. Justice Rarick, dissenting.

The opinion of the court was delivered by: Chapman

The Honorable Justice CHAPMAN delivered the opinion of the court:

Peggy Grant's medical malpractice action against Dr. Dennis Petroff claimed that he performed a tubal ligation without her consent. Grant's second amended complaint alleged medical malpractice, intentional infliction of emotional distress, and battery. Plaintiff's motion for leave to file a third amended complaint, which sought to add two additional counts seeking punitive damages for intentional infliction of emotional distress and battery, was denied by the trial court. We reverse the trial court's decision denying plaintiff leave to file her third amended complaint, and we remand for a new trial.

[ Nonpublishable material under Supreme Court Rule 23 omitted. ]

Dr. Robert Hardin, an anesthesiologist, testified for Dr. Petroff. The issue on appeal is whether Dr. Hardin testified beyond the scope of his expertise and improperly gave an opinion as to whether Grant in fact consented to the sterilization. Because the question of what Dr. Hardin testified to is crucial, a review of the record is necessary. The relevant testimony on direct is as follows:

"Q. [by Mr. Freeark, defendant's attorney] And my basic question, do you--can you demonstrate from your knowledge and review of these records whether or not Peggy Grant had--there was an informed consent by Peggy Grant for the procedures[,] including a tubal ligation?

A. [Dr. Hardin] In my opinion she was well informed.

Q. Now, the position of the parties in court is that Peggy Grant has said she didn't want the tubal on that particular day, and Dr. Petroff says that she did want the tubal because she told him. Now, that puts you in the posture where one person says one thing and the other person says another thing. How do you make a decision as to whether there was information--or informed, totally informed consent?

A. Well, at that point, you have to--I would have to examine the, the pertinent evidence that's available.

MR. LEVY [plaintiff's attorney]: Your Honor, again I am going to object. This is nothing more than him taking the place of the jury, saying I look at it, and me as the jury, I think that Peggy is lying and the Doctor is telling the truth.

MR. FREEARK: That's not--nobody has said anything about that. What he said is there's a difference of opinion.

THE COURT: Well, the Court rules as follows, ladies and gentlemen of the jury.

The ultimate question of whether or not the plaintiff here, Peggy Grant, consented to the tubal ligation procedure is for you, ladies and gentlemen, to decide.


THE COURT: This witness may offer his testimony on the question of whether, if the matter contained in the record which supports the plaintiff's position that oral consent was true, that is adequate consent[;] he may offer that. But the ultimate question of whether in fact she did so and whether those records are correct is for you to decide.

THE COURT: *** I again reiterate [ sic ] that this Doctor's opinion is to be received by you, ladies and gentlemen of the jury, only on the point that if you, ladies and gentlemen of the jury, as finders of fact, find that the plaintiff did tell Dr. Petroff and Nurse Mueller that she wanted the tubal ligation, then if that be your finding, in his opinion, that is adequate consent. But you have to make the factual determination of whether she actually did so.

MR. FREEARK: Okay. In your judgment, in this case, based on your training and experience and background, the documents which you have reviewed in this case, including the depositions, was there a valid, informed consent in this case--

A. Yes, there was."

During cross-examination by plaintiff's counsel, the following took place:

"Q. [by Mr. Levy] If I understand it, Doctor, you have testified that based upon your training, expertise and background, and based upon the medical records and the depositions, you think that Peggy Grant gave her--gave an informed consent?

A. Yes.

Q. Okay. Well, Doctor, the jury is here to decide whether or not Peggy gave that consent, and it's her testimony against the defendant's. I want to know why you are more qualified than the jury to make that decision.

Let me ask you--you said based on your training and your expertise. What training do you have to determine whether or not Peggy is telling the truth or the Doctor is telling the truth?

MR. FREEARK: I am going to object to that, your Honor. *** The Doctor never said that, never suggested it. ***

MR. LEVY: Your Honor, I get to go into the basis of his opinions. If he has got training that gives him--that makes him capable of judging who is telling the truth, I would like to know what it is.

THE COURT: Mr. Levy, I am afraid you missed the point of my earlier rulings and admonitions to the jury. This witness has not testified nor did I permit him to testify about who was telling the truth. He expressed an opinion which held that, if the Doctor was told by the plaintiff and if Nurse Mueller was so told and the other records in his view do corroborate in his view that she was given [ sic ], then there was consent.

Now, on your cross[-]examination, you may withdraw those submissions. But he at no time was permitted to substitute his view for that of the jury about who was telling the truth as to whether or not she did or did not actually inform the Doctor or Nurse Mueller that consent was given.

MR. LEVY: Your Honor, I just asked him whether or not he gave an opinion whether or not Peggy gave consent and he said yes, she did. She gave it prior to surgery. I want to know--I mean, that's what the jury is supposed to decide. I would like to go into the basis.

THE COURT: But that's not the bottom line--that's not the point or the question which drew this objection. The objection was drawn when you asked the question on what training did he rely to substitute his opinion for that of the jury. And that's when Mr. Freeark objected and I have sustained that objection.

Later, off the record, the court admonished plaintiff's counsel as follows:

"[THE COURT:] I tried to make clear in my cautionary instruction from the bench to the jury during Mr. Freeark's direct examination that the Doctor would be permitted to offer testimony by way of opinion which was limited to one narrow point insofar as the consent was concerned, and that was that if the jury as finder of fact found that plaintiff had given oral pre-op consent to Dr. Petroff and to Nurse Mueller, then that would have met the standard of care for obtaining oral consent. And I tried to make it clear that he would not be expressing an opinion that she did so consent, that that was for the ultimate--that is an ultimate question for the jury to decide.

Now, I repeated that two or three times and I repeated it at least once so far in your cross[-examination], Mr. Levy, but it appears to me that notwithstanding those admonitions, you are attempting to cross[-]examine him as though he did give the opinion which I said he couldn't, and which he did not.

THE COURT: I don't want to get into personal exchanges between counsel. This witness'[s] testimony gets right to what I believe is the core issue for the jury to decide, and I will repeat it in a written instruction at the end of the trial if necessary and again while this Doctor is on the stand again, but his opinions don't go to the ultimate question of ...

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