The opinion of the court was delivered by: Justice Wolfson
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.
HONORABLE DENISE M. O'MALLEY, JUDGE PRESIDING.
In this professional medical negligence trial two doctors were accused of failing to timely diagnose and treat John McDonnell's hip infection, proximately causing his eventual death. While the defendants denied they were negligent and denied anything they did was a proximate cause of the injury, they also contended, among other things, a non-party doctor's conduct was the sole proximate cause of the injury.
The jury returned a verdict for the defendant doctors. This appeal requires us to examine the matter of sole proximate cause, along with other claims of error that include improper evidence and instructions on matters of contributory negligence and mitigation of damages. We affirm judgment on the jury's verdict and on the trial court's order denying a motion for new trial.
In April 1986, Dr. James Ahstrom (Dr. Ahstrom) performed hip replacement surgery on John McDonnell (John). Following this surgery, John's internist was Dr. Richard McPartlin (Dr. McPartlin).
On November 8, 1986, Moira McDonnell (Moira), John's wife, telephoned Dr. McPartlin because John felt sick. Dr. Barbara Loeb (Dr. Loeb) was covering Dr. McPartlin's patients in his absence and told Moira to bring John to the Good Samaritan Hospital emergency room.
Dr. Thomas Mullin, Jr. (Dr. Mullin) examined John at the emergency room and spoke with Dr. Loeb. Based on Dr. Mullin's description of John's condition, Dr. Loeb did not admit John to the hospital. John was instructed to telephone Dr. Loeb the next day with his blood-sugar level, so she could monitor closely his diabetes. John and Moira returned home.
The next day, November 9, Moira tested John's blood-sugar and telephoned Dr. Loeb. When she learned his blood-sugar level was significantly elevated, Dr. Loeb suggested John should return to the emergency room. John declined, choosing instead to control his blood-sugar level with insulin. Dr. Loeb agreed. Several hours later, John telephoned Dr. Loeb to explain his blood-sugar levels had decreased. John assured Dr. Loeb he would telephone Dr. McPartlin the next day.
The next day, November 10, John still felt sick, and Dr. McPartlin admitted him to the Intensive Care Unit of Good Samaritan Hospital. Dr. McPartlin eventually diagnosed John's condition as an overwhelming bacterial infection centered in his surgically-replaced hip. As the infection progressed, Dr. Ahstrom advised Moira that another hip surgery could kill John because the infection had become so advanced. Dr. Ahstrom also advised Moira not to consent to another surgery. Moira followed Dr. Ahstrom's advice.
In December 1986, John was transferred to Rush Presbyterian-St. Luke's Hospital, where his surgically replaced hip was removed. John died in February 1987 from heart failure associated with the infection.
Moira, as executrix of her husband's estate, filed a medical malpractice complaint against, inter alia, Dr. McPartlin and Dr. Mullin. Moira alleged Dr. Mullin negligently failed to diagnose John's infection during his first trip to the Good Samaritan Hospital emergency room. Moira alleged Dr. McPartlin also negligently failed to tiimely diagnose the infection.
At trial, the jury found for the defendants. The trial court entered judgment on the jury's verdict and denied Moira's post-trial motions. This appeal followed.
During this trial the defendants repeatedly pointed to the empty chair. There was a great deal of testimony concerning Dr. Ahstrom's treatment of John, especially Dr. Ahstrom's unwillingness to remove John's surgically-replaced hip. The defense lawyers were allowed to argue Dr. Ahstrom's conduct was the sole proximate cause of the injuries at issue. In addition, the defendants asked for and received, over objection, a jury instruction concerning sole proximate cause. See Illinois Pattern Jury Instructions, Civil No. 12.04 (3d ed. 1995) (hereinafter IPI Civil 3d). Moira contends the trial court erred.
More than one issue was joined in this case. The plaintiff, of course, had to prove a defendant's professional negligence was a proximate cause of the injury in order to recover damages from that defendant. That meant establishing a standard of care, a deviation from that standard, and a causal connection between the deviation and the injuries sustained. Evanston Hospital v. Crane, 254 Ill. App. 3d 435, 441, 627 N.E.2d 29 (1993).
It bears repeating: "The element of proximate cause is an element of the plaintiff's case. The defendant is not required to plead lack of proximate cause as an affirmative defense." (Emphasis in original.) Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 93-94, 658 N.E.2d 450 (1995).
In this case, the defendants' general denials of any proximate cause were enough to allow them to raise the defense. Leonardi, 168 Ill. 2d at 101. The defendants did not assume any burden of proof when they presented evidence of Dr. Ahstrom's conduct. The sole proximate cause defense "merely focuses the attention of a properly instructed jury *** on the plaintiff's duty to prove that the defendant's conduct was a proximate cause of plaintiff's injury." Leonardi, 168 Ill. 2d at 94.
Whether a defendant is entitled to a sole proximate cause instruction depends on the evidence he presents. The defense fails when the evidence merely shows the defendant's negligence was one of several causes of the injury. In that case, the plaintiff has sustained his burden. That is, "a sole proximate cause instruction is not appropriate unless there is evidence that the sole proximate cause (not 'a' proximate cause) of a plaintiff's injury is conduct of another person or condition." (Emphasis in original.) Holton v. Memorial Hospital, 176 Ill. 2d 95, 134, 679 N.E.2d 1202 (1997).
Illinois Pattern Instruction 12.04 is the sole proximate cause instruction received by the jury:
"More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant." IPI Civil 3d No. 12.04.
In the Notes on Use for 12.04 the IPI Committee said: "The second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of third persons." IPI Civil 3d 12.04, Notes on Use.
We believe this is such a case.
Dr. Ahstrom told the jury he considered removing John's artificial hip in November 1986, but declined: "At the time I felt that we had a chance of saving his weight-bearing ability."
The defense offered testimony that a range of treating doctors was telling Dr. Ahstrom the hip prosthesis should ...