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Sinclair v. Berlin

September 28, 2001

JUNE B. SINCLAIR, PLAINTIFF-APPELLANT,
v.
HARVEY BERLIN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 95 L 5410 Honorable Thomas E. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Barth

UNPUBLISHED

This appeal is brought by plaintiff June Sinclair following a jury trial in her medical malpractice case that resulted in a verdict and judgment for defendant Harvey Berlin. Sinclair asserts as error the trial court's denial of her proposed jury instruction and the admission or denial of certain evidence at trial.

BACKGROUND

The following evidence was adduced at trial. Sinclair first visited Berlin, an ophthalmologist, on January 14, 1988, for treatment of a cataract in her right eye. Prior to 1988, Sinclair only needed glasses for reading. Sinclair continued to see Berlin over the following six months. At each visit, Berlin confirmed the existence of a cataract and suggested surgery to correct the problem. Sinclair's vision continued to deteriorate, and on or about August 23, 1988, Berlin performed cataract surgery on Sinclair's right eye.

Two days after the surgery, Sinclair had a follow-up visit with Berlin. Sinclair testified Berlin conducted only a cursory examination and that he did not use an indirect ophthalmoscope to examine her retina. Berlin, however, stated he conducted a thorough examination and detected no problems with Sinclair's retina. Berlin testified he checked Sinclair's vision with an eye chart and a phoropter machine, dilated her pupils and used a slitlamp, a direct ophthalmoscope and an indirect ophthalmoscope to examine her eye.

Sinclair had additional follow-up visits with Berlin on September 1, September 8, and September 22, 1988. Again, the parties are in conflict as to what took place on those dates. Sinclair testified Berlin did not, on any of these occasions, examine her with an indirect ophthalmoscope, despite Sinclair's specific complaint to Berlin on September 22, 1988, that her pupil had "a point on it." Berlin's testimony was that on September 22, 1988, he examined Sinclair with either a direct or an indirect ophthalmoscope and found that her retina had no detectable problems.

On October 6, 1988, Sinclair went to see Berlin with complaints of severe pain in her right eye. Sinclair claimed Berlin failed to examine her with the indirect ophthalmoscope, attributed her eye pain to dryness, and prescribed an ointment to alleviate the pain. Berlin claimed on this occasion he performed a slitlamp examination.

Sinclair returned to Berlin's office on October 20, 1988, at which time she claimed she was experiencing "excruciating pain," black floaters and bubbles in her right eye. Berlin insisted he examined Sinclair with an indirect ophthalmoscope at that time and found nothing wrong with her retina. Once more, Sinclair denied such an examination was performed.

On October 27, 1988, Sinclair called Berlin's office with complaints about her right eye. Sinclair stated she told Berlin she was in great pain and that her eyes were droopy and discharging something "watery." According to Sinclair, Berlin told her "her eyes were fine" and that there was "no reason to come in" for an examination. Berlin, however, testified that Sinclair denied having any symptoms that would have suggested an urgent or emerging problem. Berlin stated that Sinclair did not ask for an examination but that he would have performed one at her request.

Sinclair called Berlin's office on October 28, 1988, and complained of pain and deteriorating vision. Berlin was working at another office that day and was unable to see or speak to Sinclair. On October 29, 1988, Berlin examined Sinclair with an indirect ophthalmoscope and determined that her retina had detached.

Since October 29, 1988, Sinclair has undergone several surgeries to her right eye, performed by physicians other than Berlin. Nonetheless, Sinclair is now legally blind in her right eye. Sinclair filed her medical malpractice action against Berlin on March 2, 1995, alleging her loss of sight was due to Berlin's failure to timely diagnose and treat her symptoms of retinal detachment. After a trial, the jury returned a verdict in favor of Berlin, the court entered judgment thereon and subsequently denied Sinclair's posttrial motion. This appeal followed.

Analysis

Sinclair asserts as error six rulings by the trial court that individually or in combination warrant a new trial:

(1) denial of her proposed jury instruction on the lost chance doctrine;

(2) permitting cross examination of Sinclair's expert Dr. John Fournier in violation of a trial court in limine order;

(3) improperly barring Dr. Fournier's opinion testimony;

(4) permitting Sinclair's expert, Dr. William Fagman, on cross examination to offer an opinion regarding Sinclair's preoperative care;

(5) preventing Dr. Fournier from identifying pertinent medical treatises during his testimony; and

(6) denying Sinclair's motion for judgment ...


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