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                                  Appellate Court                        Date: 2017.10.16
                                                                         16:27:05 -05'00'




                     Adwent v. Novak, 2017 IL App (1st) 160683



Appellate Court      ZBIGNIEW ADWENT, Plaintiff-Appellant, v. RICHARD B.
Caption              NOVAK, M.D., Defendant-Appellee.



District & No.       First District, First Division
                     Docket No. 1-16-0683


Rule 23order filed   May 22, 2017
Motion to publish
granted              June 26, 2017
Opinion filed        July 17, 2017



Decision Under       Appeal from the Circuit Court of Cook County, No. 12-L-10734; the
Review               Hon. Casandra Lewis, Judge, presiding.



Judgment             Affirmed.


Counsel on           Bradley Z. Schulman, of Motherway & Napleton, LLP, of Chicago,
Appeal               for appellant.

                     Scott L. Howie, Alan J. Schumacher, and Suzanne M. Crowley, of
                     Pretzel & Stouffer, Chtrd., of Chicago, for appellee.



Panel                JUSTICE MIKVA delivered the judgment of the court, with opinion.
                     Presiding Justice Connors and Justice Harris concurred in the
                     judgment and opinion.
                                            OPINION

¶1       Plaintiff Zbigniew Adwent brought a medical malpractice suit against defendant Dr.
     Richard B. Novak. On October 5, 2015, a jury returned a verdict in favor of Dr. Novak. On
     appeal, Mr. Adwent claims that the trial court abused its discretion in two respects: (1) by
     barring testimony from Mr. Adwent’s expert witness, James Hayes, that Dr. Novak’s chart
     regarding his treatment of Mr. Adwent was missing a page and (2) by refusing to give a jury
     instruction on contributory negligence. Because we find neither of these rulings are an abuse
     of the trial court’s discretion, we affirm.

¶2                                       BACKGROUND
¶3       Mr. Adwent filed his initial complaint on September 20, 2012, alleging that, during two
     office visits in September 2010, Dr. Novak was negligent in failing to properly investigate or
     treat his medical conditions, which included back pain, Group B streptococcus, bacteremia,
     and diabetes. The initial complaint was brought against Dr. Novak and Novak Family
     Medical, but two days before trial Mr. Adwent was given leave to file a first amended
     complaint against Dr. Novak only. In his answer to Mr. Adwent’s first amended complaint,
     which was filed during the trial on October 1, 2015, the only affirmative defense that Dr.
     Novak pleaded was Mr. Adwent’s failure to mitigate damages.

¶4                                     A. Pretrial Proceedings
¶5       On September 19, 2014, Mr. Adwent filed disclosures pursuant to Illinois Supreme Court
     Rule 213(f) (eff. Jan. 1, 2007), disclosing his intention to call James Hayes as a forensic
     document examiner. Attached to the disclosures was a report in which Mr. Hayes noted that
     he had examined 22 pages of the “original Novak Family Medical office chart” for Mr.
     Adwent and opined: “Based upon the examination and comparisons of the exhibits I have
     determined that the exhibits submitted are not the complete record of the Zbigniew Adwent
     medical records.” Mr. Hayes further explained that his conclusion was based on “the
     presence of developed latent images on the submitted documents that could not be correlated
     to the records. Images from page 21A are not found in the records.”
¶6       On September 20, 2015, Dr. Novak filed a motion in limine to bar Mr. Hayes from
     testifying, arguing that Mr. Hayes’s opinion was “inconclusive and speculative.” Attached to
     the motion was a transcript of Mr. Hayes’s December 2014 discovery deposition, in which he
     explained that his opinion was based on latent images found on a billing record at page 21A
     of Mr. Adwent’s medical records. According to Mr. Hayes, these latent images reflected
     writing—including the initials “FU,” which he believed referred to “follow up,” as well as
     “entries for blood pressure and pulse and other entries that ha[d] not been deciphered but
     [we]re clearly visible on the document”—that had been made on another piece of paper while
     it was laid on top of page 21A. Mr. Hayes concluded that, because the latent images on page
     21A did not appear as actual writing on any page in Mr. Adwent’s medical records, the
     records were not complete.
¶7       Mr. Hayes conceded in his deposition that he had no knowledge of whether the writing
     that appeared in the latent images on page 21A concerned Mr. Adwent. Mr. Hayes also could
     not be sure that the writing was Dr. Novak’s; although the handwriting on the latent images


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       was consistent with Dr. Novak’s handwriting on Mr. Adwent’s medical chart, Mr. Hayes
       “had not rendered an opinion regarding authorship.” Mr. Hayes also acknowledged the
       narrow scope of his opinion:
                   “Q. So your single opinion in this case is that there are latent images shown on
               Page 21A, the billing record entry, that you cannot correlate to any other handwritten
               entry on any other page of Mr. Adwent’s medical chart.
                   A. Correct.”
¶8         The trial court granted Dr. Novak’s motion to bar Mr. Hayes from testifying at trial. The
       court noted that the proposed testimony was “totally speculative” and that there was no way
       to know if the writing in the latent image was “work related” or even “related to this
       particular patient.” The court continued, “[a]nd if it is related to this particular patient, we
       don’t know what he was trying to say. I mean, I don’t know how that could be probative,
       other than to go to some, you know—I don’t know, some conspiracy kind of thing.”

¶9                                         B. Offer of Proof
¶ 10       During trial, Mr. Adwent made an offer of proof as to what Mr. Hayes would have
       testified to, questioning Mr. Hayes on the stand outside of the jury’s presence. That
       testimony, consistent with Mr. Hayes’s deposition testimony, was that notations had been
       made on a document which appeared in latent images on page 21A of Mr. Adwent’s medical
       records, but that the document with those notations was not a part of Mr. Adwent’s medical
       chart as maintained by Dr. Novak. Mr. Hayes also acknowledged that he could not determine
       whether that missing document concerned Mr. Adwent and that he had “no way of knowing”
       what patient was referred to in the writing appearing as a latent image on page 21A. In
       response to questioning from Mr. Adwent’s attorney, Mr. Hayes reiterated that the
       conclusion he drew from Mr. Adwent’s medical records was simply that “the document upon
       which the F/U, the temperature and the BP were written d[id] not exist in the chart that [he]
       examined, and [was] not a part of the characteristics of the exhibits that [he] examined.”

¶ 11                                             C. Trial
¶ 12        The trial began on September 21, 2015. The evidence was that on August 31, 2010, prior
       to going to see Dr. Novak, Mr. Adwent was admitted to St. Alexius Medical Center and
       diagnosed with Group B streptococcus, bacteremia, cholelithiasis, low back pain, lumbar disc
       disease, Type 2 diabetes, and hypertension. Mr. Adwent was told that he needed an MRI, but
       would have to pay for it before he received it. Mr. Adwent left the hospital against medical
       advice on September 7, 2010, because, according to his testimony, he could not afford the
       MRI and the hospital was not helping him. Although Mr. Adwent could not recall this at
       trial, one of his children testified that Mr. Adwent subsequently made a visit to the
       emergency room at Good Shepherd Hospital on September 19, 2010.
¶ 13        Mr. Adwent first saw Dr. Novak in the doctor’s office on September 21, 2010,
       accompanied by three of his adult children and complaining of intractable back pain. Mr.
       Adwent testified that Dr. Novak did not tell him to go to the hospital or to a back specialist
       but, instead, prescribed him medication and told him to come back if he did not feel better.
       Mr. Adwent also testified that he did not hear Dr. Novak tell his children that he needed to go



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       to the hospital and that he did not remember telling Dr. Novak that he had been in the
       hospital for a week or in the emergency room.
¶ 14       Dr. Novak testified, and his patient notes for September 21 reflected, that Mr. Adwent’s
       chief complaint that day was severe lower back pain and that Dr. Novak’s initial impression
       was exacerbation of Mr. Adwent’s lower back pain due to sciatica caused by a herniated disc.
       Dr. Novak testified that he prescribed a drug regimen to treat the lower back pain and that he
       told Mr. Adwent that he needed either to see a back specialist or go to the hospital because
       Dr. Novak could only provide him with immediate help. Dr. Novak testified that he did not
       schedule a follow-up visit because he did not expect to see the patient again. Dr. Novak
       acknowledged that these recommendations were not in Mr. Adwent’s medical records but
       testified that Mr. Adwent gave no indication that he would not follow them.
¶ 15       Mr. Adwent testified that he returned to see Dr. Novak again on September 27, 2010,
       because he again began to feel very severe pain. He was accompanied on the second visit by
       two of his adult children. Mr. Adwent testified that Dr. Novak did not mention the need for a
       hospital visit but gave him an injection and prescribed more medication.
¶ 16       Dr. Novak testified that, at the September 27, 2010, visit, he again urged Mr. Adwent to
       go to the hospital. This recommendation was in Dr. Novak’s notes, which were included with
       Mr. Adwent’s medical chart for that date. Dr. Novak’s notes also reflected that Mr. Adwent
       told Dr. Novak that he would not go to the hospital. Dr. Novak did not see Mr. Adwent again
       after that date until the lawsuit was filed.
¶ 17       A day or two after Mr. Adwent saw Dr. Novak on September 27, 2010, Mr. Adwent
       became quite ill and was admitted to the hospital with what he alleged was septic shock, as
       well as other serious medical conditions. He was in the hospital for two months, had multiple
       surgeries, and incurred significant medical expenses.
¶ 18       During the jury instruction conference, Mr. Adwent requested that the court give an
       instruction on contributory negligence and a jury verdict form that allowed for contributory
       negligence. Mr. Adwent urged the trial court to provide these to the jury over Dr. Novak’s
       objection because there “was a ton of evidence of contributory negligence.” As Mr. Adwent
       pointed out at the jury instruction conference, the defendants’ answer to the original
       complaint pleaded both failure to mitigate and contributory negligence as affirmative
       defenses. The trial court refused to give any instruction on contributory negligence because
       Dr. Novak did not plead the affirmative defense of contributory negligence in his answer to
       the first amended complaint. The record on appeal contains no specific instruction or jury
       form submitted by Mr. Adwent to the trial court.
¶ 19       On October 5, 2015, the jury returned a verdict in favor of Dr. Novak. On November 2,
       2015, Mr. Adwent filed a motion for a new trial that raised both of the issues that he raises on
       appeal and that the trial court denied on February 16, 2016.

¶ 20                                        JURISDICTION
¶ 21      Mr. Adwent timely filed his notice of appeal on March 9, 2016. Accordingly, this court
       has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303, governing appeals
       from final judgments entered by the circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1,
       1994); R. 303 (eff. Jan. 1, 2015).



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¶ 22                                            ANALYSIS
¶ 23                              A. Exclusion of Mr. Hayes’s Testimony
¶ 24        Mr. Adwent’s first claim of error is that the trial court improperly excluded the testimony
       of Mr. Hayes. The decision of whether to admit or exclude evidence, including whether to
       allow an expert to present certain opinions, rests solely within the discretion of the trial court
       and this court will not reverse on this basis absent an abuse of the court’s discretion. Jones v.
       Beck, 2014 IL App (1st) 131124, ¶ 16. Such an abuse of discretion occurs only if no
       reasonable person would take the view adopted by the trial court. Id. When considering the
       reliability of expert testimony and determining the admissibility of that testimony, a trial
       judge “should balance its probative value against its prejudicial effect.” People v. Becker, 239
       Ill. 2d 215, 235 (2010). “In the exercise of his or her discretion, the trial judge should also
       carefully consider the necessity and relevance of the expert testimony in light of the facts in
       the case before admitting it for the jury’s consideration.” Id.
¶ 25        Mr. Adwent argues:
                “The probative value of Mr. Hayes [sic] testimony that there were missing documents
                from the patient’s chart substantially outweighs the prejudicial effect on the defendant
                because it shows that the defendant failed to properly investigate the patient’s chart
                and inappropriately gave an IM steroid injection without exploring the plaintiff’s
                underlying condition.”
¶ 26        As an initial matter, we reject the premise of Mr. Adwent’s arguments: that Mr. Hayes
       could have testified that a document was missing from Mr. Adwent’s medical chart.
       Although the opinion Mr. Hayes offered in his report was that Mr. Adwent’s medical records
       were not complete, he backed away from this conclusion in both his deposition and during
       his offer of proof testimony, acknowledging that all that he could opine was that he could not
       “correlate” the handwriting on the latent images on page 21A “to any other handwritten entry
       on any other page of Mr. Adwent’s medical chart” and that “the document upon which the
       F/U, the temperature and the BP were written d[id] not exist in the chart that [he] examined,
       and [was] not a part of the characteristics of the exhibits that [he] examined.” Thus, it appears
       that Mr. Hayes would not have, in fact, testified that there were documents missing from Mr.
       Adwent’s medical chart.
¶ 27        Even if Mr. Hayes had remained willing to testify that, in his opinion, a document was
       missing from Mr. Adwent’s medical chart, such an opinion would not have been supported
       by Mr. Hayes’s observations. Those observations made clear that Mr. Hayes did not know
       whether the document from which writing appeared as latent images on page 21A had ever
       been a part of Mr. Adwent’s medical chart, whether it was authored by Dr. Novak, or
       whether it even concerned Mr. Adwent. It is well settled that “[a]n expert witness’ opinion
       cannot be based on mere conjecture and guess.” Dyback v. Weber, 114 Ill. 2d 232, 244
       (1986). To the extent that Mr. Hayes would have offered such an opinion to the jury, it would
       not have been an abuse of the trial court’s discretion to bar that testimony. Thus, we do not
       accept the premise that Mr. Hayes could have testified even to the first of these alleged
       connections between the latent images that he observed on page 21A of Mr. Adwent’s
       medical chart and the issues in this case—that there was a document missing from Mr.
       Adwent’s medical chart.
¶ 28        Moreover, even if Mr. Adwent had been able to make that first connection—that a
       document was missing—he could not have tied this evidence to any of the other connections

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       that he argues make Mr. Hayes’s testimony relevant. Mr. Hayes acknowledged at his
       deposition and during the offer of proof that he could not say that the writing in the latent
       images on page 21A concerned Mr. Adwent. Mr. Hayes also refused to provide any opinion
       that Dr. Novak had authored this allegedly missing document. Thus, even if a document was
       “missing,” it might not have been authored by Dr. Novak and it might not have concerned
       Mr. Adwent.
¶ 29       Finally, even if Mr. Hayes could have testified that, in his opinion, there was a missing
       record regarding Mr. Adwent and that the missing record was authored by Dr. Novak, Mr.
       Hayes acknowledged that he knew almost nothing about what was on that document. He
       could only testify that the latent images suggested that the document contained the letters
       “FU” and had entries that appeared to be for blood pressure and pulse. Mr. Hayes was unable
       to testify as to anything else that appeared on that document. It is a huge leap to suggest, as
       Mr. Adwent argues, that this somehow “shows” that Dr. Novak failed to investigate the
       patient’s chart or gave the patient inappropriate care.
¶ 30       To the extent that Mr. Adwent argues that the bare fact of a missing document from his
       medical chart, whatever the substance and whoever the author, would undermine Dr.
       Novak’s credibility, for the reasons outlined above, we do not believe that Mr. Hayes would
       have testified that he believed a document was “missing” or that, if he had chosen to testify
       that way, such testimony would have been admissible.
¶ 31       Since there would have been little, if any, probative value to Mr. Hayes’s testimony, Dr.
       Novak need not have demonstrated much prejudicial impact. Becker, 239 Ill. 2d at 235
       (prejudicial effect is balanced against probative value). However, Mr. Adwent’s argument on
       appeal illustrates the prejudicial impact that this testimony could have had on the jury. Mr.
       Adwent’s counsel clearly intended to use that testimony to suggest that Mr. Adwent’s
       medical records had perhaps been altered to cover the doctor’s inappropriate treatment of his
       patient. Such a use of this testimony would be completely speculative and highly prejudicial.
¶ 32       In sum, there can be little doubt that the trial court did not abuse its discretion in granting
       the motion in limine and barring Mr. Hayes’s testimony in this case.

¶ 33                                          B. Jury Instruction
¶ 34        Mr. Adwent next argues that the trial court erroneously refused to give the jury either an
       instruction or a verdict form that addressed contributory negligence. Mr. Adwent
       acknowledges that Dr. Novak did not request such an instruction and was not pleading an
       affirmative defense of contributory negligence at the time that the jury began its
       deliberations. However, Mr. Adwent claims that he was prejudiced because the jury was
       allowed to hear significant evidence about his own conduct—including that he left St.
       Alexius Medical Center against medical advice and failed to provide Dr. Novak with an
       adequate medical history—that was relevant only to contributory negligence. Mr. Adwent
       acknowledges that, on appeal, our review of this issue is limited to determining whether the
       trial court abused its discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp.,
       201 Ill. 2d 260, 273 (2002). We find no such abuse of discretion in this case.
¶ 35        First, as Dr. Novak points out, Mr. Adwent has not adequately presented this issue
       because the record on appeal does not include the proposed jury instruction. We have held
       that, “[u]nless all instructions, both given and refused, are contained in the record, ‘a claim of


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       error based on the giving or refusal of instructions will not be heard.’ ” People v. Reynolds,
       294 Ill. App. 3d 58, 69 (1997) (quoting People v. Daily, 41 Ill. 2d 116, 121 (1968)).
¶ 36        Moreover, even if Mr. Adwent properly presented the issue, or we assumed that he
       requested the contributory negligence instruction and jury verdict form from the Illinois
       Pattern Jury Instructions, we would find there was no error. The law is clear that a party
       cannot demonstrate that the trial court abused its discretion by failing to give a jury
       instruction without demonstrating that prejudice has resulted. Dillard v. Walsh Press & Die
       Co., 224 Ill. App. 3d 269, 279-80 (1991). Mr. Adwent cannot demonstrate that the trial
       court’s refusal of his request for an instruction on contributory negligence resulted in any
       prejudice to him.
¶ 37        Contributory negligence reduces a plaintiff’s damages. Gruidl v. Schell, 166 Ill. App. 3d
       276, 280 (1988). It is difficult to imagine how the failure to give an instruction that could
       only have served to reduce the damages that Mr. Adwent would have been awarded had he
       prevailed in this case could have prejudiced Mr. Adwent where the jury found in favor of Dr.
       Novak and no damages were awarded in the first instance. Therefore, the outcome in this
       case could not have been impacted by the trial court’s failure to give an instruction on
       contributory negligence.
¶ 38        In apparent recognition of this problem, Mr. Adwent argues that some of the evidence
       presented at trial should not have been admitted if an affirmative defense of contributory
       negligence was not going to be asserted. As Mr. Adwent notes, although Dr. Novak and
       Novak Family Medical asserted the affirmative defense of contributory negligence in the
       answer to Mr. Adwent’s initial complaint, that complaint was superseded by Mr. Adwent’s
       first amended complaint, which Dr. Novak did not answer until the middle of the trial, when
       evidence of Mr. Adwent’s own conduct in leaving the hospital against medical advice and in
       failing to fully inform Dr. Novak about his medical history had already been presented to the
       jury. However, these facts do not help Mr. Adwent’s position.
¶ 39        Mr. Adwent’s arguments go to the admissibility of evidence, not the appropriate jury
       instructions to be offered. Mr. Adwent did not object to this evidence at trial and did not
       address the propriety of its admission in his posttrial motion or on appeal. Thus, the issue of
       whether this evidence about Mr. Adwent’s own conduct should have been admitted is not
       even before us. Moreover, as Dr. Novak points out, the evidence about Mr. Adwent’s
       conduct was relevant to demonstrate that his actions were the sole proximate cause of his
       injuries; it was based on this evidence that the trial court gave a jury instruction on sole
       proximate cause.
¶ 40        Mr. Adwent also appears to argue that, by failing to give a contributory negligence
       instruction and verdict form, the trial court took away the possibility of a compromise
       verdict, in which the jury could have found Dr. Novak at fault but also found Mr. Adwent
       partially responsible. This is completely speculative and, in fact, simply not possible. As Dr.
       Novak notes, pursuant to the Illinois Pattern Jury Instructions verdict forms, the jury would
       not have been instructed to even consider the issue of contributory negligence unless and
       until it found that Dr. Novak was liable for Mr. Adwent’s injuries. At that point, the jury
       would have been instructed that, if the plaintiff’s contributory negligence was “50% or less
       of the total proximate cause of the injury or damage for which recovery is sought,” it should
       use verdict form B, which would allow it to deduct from the damages awarded a percentage
       attributable to the plaintiff. Illinois Pattern Jury Instructions, Civil, No. B45.02 (2011). The

                                                  -7-
       compromise verdict Mr. Adwent speculates may have resulted if the jury had been instructed
       on contributory negligence was thus legally incompatible with the jury’s finding that Dr.
       Novak was not liable for Mr. Adwent’s injuries.
¶ 41       In sum, Mr. Adwent has failed to show he was prejudiced by the trial court’s refusal to
       give a jury instruction on contributory negligence. Accordingly the court did not abuse its
       discretion by refusing or failing to give such an instruction.

¶ 42                                       CONCLUSION
¶ 43      For the foregoing reasons, we affirm the judgment of the trial court.

¶ 44      Affirmed.




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