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Campbell v. Wagner

March 11, 1999


Appeal from Circuit Court of Champaign County No. 96L142 Honorable George S. Miller, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH


Plaintiff Linda Campbell appeals from a judgment entered in the circuit court of Champaign County in favor of defendants Rebecca A. Wagner and Carle Clinic Association following a jury trial in this medical malpractice action. The issue is whether the trial court should have given three jury instructions tendered by plaintiff. We affirm.

The trial court refused plaintiff's tendered instruction Nos. 3, 9, and 10. Plaintiff's tendered instruction No. 3 stated:

"A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the facts sought to be proved." Illinois Pattern Jury Instructions, Civil, No. 1.03 (3d ed. 1995) (hereinafter IPI Civil 3d).

Plaintiff's tendered instruction No. 9 stated:

"If you decide that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury."

"However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant." IPI Civil 3d No. 12.05. Plaintiff's tendered instruction No. 10 stated:

"When I use the expression 'proximate cause,' I mean a cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is suffi- cient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury." IPI Civil 3d No. 15.01. Although the long form of IPI Civil 3d No. 15.01 was refused, the jury was instructed using the short form consisting of the first sentence only.

Defendants initially argue that the issues raised in this case were not properly preserved for review because the posttrial motion did not adequately identify the claimed errors. The allegation of error in a posttrial motion must be sufficiently specific to afford the trial court the opportunity to re-examine earlier rulings on the instructions. Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 351, 415 N.E.2d 337, 340 (1980). In this case, plaintiff did more than merely list the numbers of the instructions at issue. In addition to identifying the instructions at issue, the plaintiff's posttrial motion stated:

"The issue of causation involved the jury's consideration of the cause and effect relationships between a hematoma that developed and became infected in relation to the origin and circumstances surrounding a perforation in the Plaintiff's sigmoid colon. Because of the mechanics of the development of the injurious events inside the Plaintiff's abdomen, outside the view of any witnesses, it was imperative that the Plaintiff be allowed to argue circumstantial evidence and the inter- relationship between the hematoma and the colon perforation that occurred with concurrent pattern jury instructions concerning those circumstances."

A review of the record indicates that the tendered instructions were available to the trial court at the time of the hearing on the posttrial motion. A transcript of the hearing fails to disclose any difficulty on the part of the trial Judge in understanding the nature of the plaintiff's contentions. The issues are not waived due to the lack of specificity in the posttrial motion.

Plaintiff has the right to have the jury clearly and fairly instructed on any theory supported by the evidence. In determining the propriety of the tentative instructions, this court considers whether, considering the instructions in their entirety, the jury was fairly, fully, and comprehensively informed as to the relevant principles. Leonardi v. Loyola University, 168 Ill. 2d 83, 100, 658 N.E.2d 450, 458 (1995). The trial court has discretion in determining what issues are raised by the evidence. Leonardi, 168 Ill. 2d at 100, 658 N.E.2d at 458; Villa v. Crown Cork & Seal Co., 202 Ill. App. 3d 1082, 1088, 560 N.E.2d 969, 972 (1990). The trial court's determination of which jury instructions should be given will not be disturbed on appeal unless that determination amounted to an abuse of discretion. Lundquist v. Nickels, 238 Ill. App. 3d 410, 431, 605 N.E.2d 1373, 1388 (1992).

We note first that it would not have been error for the trial court to have given the tendered instructions. Likewise, based upon a review of the record, no reversible error arose from refusing to give plaintiff's instruction Nos. 3, 9, and 10. In denying plaintiff's posttrial motion, the trial Judge pointed out that the only charge of negligence presented to the jury in this case was that defendants "deviated from the standard of care for medical practitioners performing the surgery of May 11, 1994, in that organs and body parts in the vicinity of the surgery site were damaged and not discovered and repaired before the operation was completed and closed." Based on this issue, the trial court determined that the instructions tendered by plaintiff were unnecessary and inappropriate. The record and the parties' briefs indicate that the issue at trial was whether Wagner lacerated plaintiff's sigmoid colon while performing a ...

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