The opinion of the court was delivered by: Justice O'brien
Appeal from the Circuit Court of Cook County
Honorable Leonard R. Grazian, Judge Presiding.
Plaintiff, Eva Adami, filed a medical malpractice action against defendants John V. Belmonte, Jr., JVB Medical Associates, Ltd., and Gottlieb Memorial Hospital. Plaintiff alleged that while performing surgery to remove her gallbladder, Doctor Belmonte (an agent of JVB Medical Associates) and his assistant, Doctor Guillermo Lara (an employee and agent of Gottlieb Hospital), perforated her small intestine, causing her numerous complications. The jury found for defendants, and the trial court denied plaintiff's posttrial motion. Plaintiff appeals, contending: (1) the jury's verdict was against the manifest weight of the evidence; (2) the trial court erred in barring plaintiff from calling Gottlieb Hospital's retained expert during her case in chief; (3) the trial court failed to properly instruct the jury; (4) the trial court erred in barring plaintiff from commenting during closing arguments on Gottlieb Hospital's failure to call its expert to testify; and (5) counsel for Gottlieb Hospital asked an improper question of plaintiff's expert witness. We affirm.
In 1991, plaintiff was diagnosed with gallstones and referred to Doctor Belmonte. Doctor Belmonte examined plaintiff, then told her she needed surgery to remove her gallbladder. Doctor Belmonte informed plaintiff there were two types of gallbladder surgeries he could perform on her, an "open procedure" or a "closed procedure." In an open procedure, Doctor Belmonte would operate through an 8 -to 14 - inch incision in plaintiff's belly; in a closed procedure, Doctor Belmonte would operate through several smaller incisions in the belly. Plaintiff agreed to let Doctor Belmonte decide which procedure to use.
On November 5, 1991, Doctor Belmonte performed the closed procedure on plaintiff at Gottlieb Hospital. Plaintiff developed complications and underwent a second surgery a few days later. Plaintiff testified that Doctor Belmonte told her the second surgery was to fix her small intestine, which he had cut during her November 5 operation.
Doctor Belmonte testified that Doctor Guillermo Lara assisted him in the November 5 surgery. Doctor Belmonte testified that Doctor Lara did not do any incising or cutting during plaintiff's surgery. However, Doctor Belmonte admitted stating in his pretrial deposition that "Doctor Lara assisted *** in the role of a cosurgeon. The role of a cosurgeon is to provide exposure, to assist or control bleeding, and this entails clipping [and] cutting."
Doctor Belmonte testified he saw plaintiff the next day, November 6, and that she was nauseous and had diminished urine output. Doctor Belmonte then went away on a trip. He returned on November 9 and learned that, while he was away, doctors at Gottlieb Hospital had run tests on plaintiff that showed a perforation of her small intestine. On November 12, Doctor Belmonte operated on plaintiff to repair the perforation.
Post-operatively, plaintiff developed a blood infection, renal failure, inflammation in the lining of her abdomen, and aggravation of her diabetes. The perforation and resulting complications necessitated a 10-week hospital stay.
Doctor Belmonte testified he did not perforate plaintiff's small intestine during the gallbladder surgery. He also denied telling plaintiff or any of her family members that he had cut the small intestine. Doctor Belmonte testified that plaintiff had pre-existing ulcer disease that likely weakened her bowel wall and caused the perforation.
Doctor Lara testified he assisted Doctor Belmonte during plaintiff's gallbladder operation on November 5. Doctor Lara's role in the operation was to use two instruments (graspers) to hold and retract the gallbladder so that Doctor Belmonte could excise it. Doctor Lara testified that his instruments came nowhere near plaintiff's small intestine; however, Doctor Lara also testified that he "can't say" whether or not he touched plaintiff's small intestine during her surgery.
Plaintiff's expert witness, Doctor Stephen Goldstone, testified he had read the operative report and viewed a videotape of plaintiff's November 5 gallbladder operation. Doctor Goldstone opined that the injury to plaintiff's small intestine occurred during the gallbladder surgery "while Doctor Lara and [Doctor] Belmonte were using instruments and manipulating the [small intestine]." Doctor Goldstone opined that the injury would not have occurred if Doctor Belmonte and Doctor Lara had used ordinary care while using the instruments under their control. Doctor Goldstone also opined that Doctor Belmonte violated the standard of care when he failed to convert from a closed procedure to an open procedure, failed to timely discover the perforation and failed to promptly reoperate on plaintiff.
On cross-examination, Doctor Goldstone testified he did not know when the injury occurred; he stated that the actual perforation might have occurred during the surgery or a few hours later due to trauma during the surgery. Doctor Goldstone stated he did not know which instruments Doctor Lara had handled during the surgery. Doctor Goldstone agreed that Doctor Lara did not violate the standard of care if he merely positioned the gallbladder while Doctor Belmonte did all the incising and cutting.
Doctor Goldstone also stated that a perforation of the small intestine can occur during gallbladder surgery even in the absence of negligence.
Doctor Belmonte's expert witness, Doctor Anthony Altimari, testified he reviewed plaintiff's hospital records and the videotape of plaintiff's November 5 gallbladder operation. Doctor Altimari testified neither Doctor Belmonte nor Doctor Lara violated the standard of care during the surgery. Doctor Altimari stated that the perforation in plaintiff's small intestine perhaps resulted from a pre-existing ulcer. Doctor Altimari also opined that Doctor Belmonte did not violate the standard of care by failing to convert to an open procedure or by waiting until November 11 to reoperate.
The jury found for defendants and the trial court denied plaintiff's posttrial motion. Plaintiff filed this timely appeal.
First, plaintiff argues the jury's verdict was against the manifest weight of the evidence. A judgment is against the manifest weight of the evidence when the opposite Conclusion is evident or when the findings are unreasonable, arbitrary or not based on the ...