                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Babikian v. Mruz, 2011 IL App (1st) 102579




Appellate Court            LISA BABIKIAN, Plaintiff-Appellee, v. RICHARD MRUZ, M.D.,
Caption                    Defendant-Appellant.



District & No.             First District, First Division
                           Docket No. 1-10-2579


Filed                      July 18, 2011


Held                       In a medical malpractice action, defendant physician forfeited the issue
(Note: This syllabus       of whether the trial court erred in admitting evidence and argument that
constitutes no part of     he was not board certified and had failed the board-certification
the opinion of the court   examination, and where the trial court erred in denying defendant’s
but has been prepared      motion for a setoff, the appellate court granted that motion and so
by the Reporter of         ordered.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-L-11209; the
Review                     Hon. Susan M. Zwick, Judge, presiding.


Judgment                   Affirmed in part, reversed in part, and modified.
Counsel on                 Pretzel & Stouffer Chtrd., of Chicago (Timothy A. Weaver and Michael
Appeal                     A. Barry, of counsel), for appellant.

                           Law Office of Kenneth C. Chessick, M.D., of Schaumburg (Kenneth C.
                           Chessick and Magdalena Dworak, of counsel), for appellee.


Panel                      JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
                           Presiding Justice Hall and Justice Rochford concurred in the judgment
                           and opinion.



                                             OPINION

¶1          The plaintiff, Lisa Babikian, brought this action against the defendant, Richard Mruz,
        M.D., seeking recovery for damages sustained as a result of negligent medical treatment. The
        jury found in favor of the plaintiff and returned a verdict in the amount of $500,500. The
        circuit court entered judgment on the verdict, and the defendant has appealed. For the reasons
        that follow, we affirm in part, reverse in part, and order a setoff in favor of the defendant.
¶2          The record reflects the following relevant facts. The plaintiff came under the care of the
        defendant in February 2000. After examining the plaintiff, the defendant performed a
        diagnostic laparoscopy to determine whether she suffered from endometriosis. The procedure
        was performed on an outpatient basis at Alexian Brothers Medical Center (Alexian Brothers).
        During the laparoscopy, the defendant pierced the plaintiff’s transverse colon, requiring
        immediate corrective surgery by another surgeon. Immediately after that surgical repair had
        been accomplished, the defendant completed the laparoscopy. He found no evidence of
        endometriosis, but discovered a seven-centimeter ovarian cyst, which was sent to the lab for
        testing.
¶3          The perforation of the plaintiff’s transverse colon required further hospitalization, a
        colostomy, and an additional surgery to reverse the colostomy. The plaintiff also developed
        ileus, a condition that necessitated a three-week hospital stay. The multiple incisions caused
        the plaintiff to develop hernias, also requiring further hospitalization. As a result of these
        treatments and complications, the plaintiff suffers from permanent pain in her abdomen. In
        addition, her mental health declined, impelling her to seek treatment from psychologists and
        psychiatrists. The plaintiff was prescribed antidepressant medications and eventually required
        emergency hospitalization because she had become suicidal.
¶4          Prior to filing suit against the defendant, the plaintiff and her husband, Aleco, entered
        into an agreement with Alexian Brothers. Pursuant to that agreement, the plaintiff and Aleco
        executed a covenant not to sue in exchange for a payment of $70,000, which was not
        apportioned in any way.
¶5          The plaintiff and Aleco subsequently brought this medical malpractice action against the

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       defendant. The plaintiff claimed that, as a result of the defendant’s negligence, she suffered
       damages for permanent injury and disfigurement, medical expenses, pain and suffering, and
       emotional distress. Aleco sought recovery for loss of consortium.
¶6         During discovery, the defendant identified himself as a controlled expert witness under
       Supreme Court Rule 213(f)(2) (Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007)), stating that he
       “would testify regarding his training, education, and experience,” as well as “his care and
       treatment of [the plaintiff],” and “his compliance with the standard of care.” The defendant
       further disclosed that he would testify that his care and treatment of the plaintiff “were
       reasonable, appropriate, and within the standard of care, and [that] his care and treatment did
       not cause the injuries as claimed by the plaintiff.”
¶7         Also during discovery, the plaintiff and Aleco disclosed the existence of the covenant not
       to sue and that they had received a payment of $70,000 from Alexian Brothers.
       Approximately two years before trial, the plaintiff and Aleco divorced, and Aleco thereafter
       voluntarily dismissed his loss-of-consortium claim.
¶8         Prior to trial, the defendant filed a motion seeking to preclude the plaintiff from
       presenting evidence that he had previously failed the board examination in obstetrics and
       gynecology. The trial court granted the defendant’s motion, in part, ruling that evidence
       regarding the defendant’s lack of board certification would be admitted only if the defendant
       provided expert opinions as to the standard of care.
¶9         At trial, the defendant was called as an adverse witness by the plaintiff. During that
       examination, the defendant testified regarding his professional education and experience, as
       well as his treatment of the plaintiff and the reasons underlying his treatment decisions.
       When the plaintiff’s counsel inquired whether he believed that he had complied with the
       standard of care in treating the plaintiff, the defendant responded, “I am a physician for over
       30 years or so. *** I am going to do things appropriately, I am going to ask the proper
       questions. I did in [the plaintiff’s] case.” The defendant further testified that he was not board
       certified. In addition, after acknowledging that a candidate for board certification must first
       take the written portion of the board examination before sitting for the oral portion, the
       defendant stated that he had not taken the oral portion of the test. The defendant was never
       expressly asked, nor did he testify regarding, whether he had failed the written portion of the
       certification exam. A subsequent objection by defense counsel was overruled based on the
       fact that the defendant had earlier testified to his expert opinion regarding the standard of
       care.
¶ 10       The trial court instructed the jurors that, if they found in favor of the plaintiff, they could
       award damages for pain and suffering and also for emotional distress, as long as those
       elements of damages were supported by the evidence. The jury returned a verdict for the
       plaintiff in the amount of $500,500, which included specific awards of $200,000 for pain and
       suffering and $130,000 for emotional distress.
¶ 11       The defendant filed a posttrial motion, asserting that the trial court erred in permitting
       the plaintiff to imply to the jury that the defendant had failed the board-certification
       examination and by instructing the jury that damages could be awarded separately for both
       pain and suffering and emotional distress. In addition, the defendant requested that he be


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       awarded a setoff based on the prior settlement agreement between the plaintiff and Alexian
       Brothers. The trial court denied the defendant’s posttrial motion in its entirety, and this
       appeal followed.
¶ 12        The defendant initially contends that the trial court committed reversible error in
       allowing the plaintiff to present evidence and argument that he was not board certified and
       that he had failed a portion of the board-certification examination. In response, the plaintiff
       argues that the defendant has forfeited this issue by failing to assert a timely objection at trial.
       We agree that the issue has been forfeited on appeal.
¶ 13        A court’s evidentiary rulings may not be challenged on appeal if they have not been
       properly preserved. See generally Thornton v. Garcini, 237 Ill. 2d 100, 106, 928 N.E.2d 804
       (2009). Rulings on motions in limine are interlocutory and remain subject to reconsideration
       by the court throughout the trial. Cetera v. DiFilippo, 404 Ill. App. 3d 20, 40, 934 N.E.2d
       506 (2010). Consequently, an adverse ruling on a pretrial motion to exclude evidence is not
       sufficient to preserve the issue for appeal. Simmons v. Garces, 198 Ill. 2d 541, 569, 763
       N.E.2d 720 (2002); Cetera, 404 Ill. App. 3d at 40. The moving party must also make a
       contemporaneous objection at trial when the evidence is introduced in order to allow the
       court the opportunity to revisit its earlier ruling. Simmons, 198 Ill. 2d at 569. Failure to object
       at trial results in forfeiture of the issue on appeal. Simmons, 198 Ill. 2d at 569; Cetera, 404
       Ill. App. 3d at 40. Also, the failure to object to allegedly improper comments during closing
       argument operates as a forfeiture of the objection. Velarde v. Illinois Central R.R. Co., 354
       Ill. App. 3d 523, 543-44, 820 N.E.2d 37 (2004).
¶ 14        In this case, the defendant’s motion in limine sought to exclude evidence that he had
       failed the written portion of the board-certification examination. The trial court granted that
       motion, in part, and ruled that evidence of his lack of board certification would be admitted
       only if the defendant provided an expert opinion regarding the standard of care. At trial, the
       defendant testified that he complied with the standard of care in treating the plaintiff, and he
       also stated that he was not board certified and had not taken the oral portion of the
       certification examination. Defense counsel did not raise a contemporaneous objection to this
       testimony. In addition, the defendant did not object to the closing argument of the plaintiff’s
       attorney on the basis that her comments improperly referenced his lack of board certification.
       Consequently, the defendant has forfeited the right to challenge that evidence and argument.
       See Simmons, 198 Ill. 2d at 569; Velarde, 354 Ill. App. 3d at 543-44.
¶ 15        Moreover, even if this issue had been preserved for review, we would find no error in the
       trial court’s decision. First, we observe that the defendant was never explicitly questioned,
       nor did he testify, regarding the fact that he had failed the written portion of the board
       examination. Second, such evidence would have been admissible if it had been adduced. See
       Rockwood v. Singh, 258 Ill. App. 3d 555, 557, 630 N.E.2d 873 (1993) (holding that, where
       a physician who has been sued for malpractice testifies as an expert, evidence regarding his
       age, practice, and failure to pass board-certification examinations is relevant and admissible);
       McCray v. Shams, 224 Ill. App. 3d 999, 587 N.E.2d 66 (1992) (same). Accordingly, we
       reject the defendant’s assertion that the judgment is subject to reversal on this ground.
¶ 16        The defendant next argues that the trial court erred by instructing the jury that damages


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       could be awarded for pain and suffering and for emotional distress. We disagree.
¶ 17       Whether to provide a particular jury instruction is within the sound discretion of the trial
       court, and the court’s decision will be reversed only where the trial court abused its
       discretion. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 203, 854
       N.E.2d 635 (2006). A trial court does not abuse its discretion so long as, “ ‘taken as a whole,
       the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal
       principles.’ ” York, 222 Ill. 2d at 203 (quoting Schultz v. Northeast Illinois Regional
       Commuter R.R. Corp., 201 Ill. 2d 260, 273-74, 775 N.E.2d 964 (2002)).
¶ 18       Here, the trial court gave a modified jury instruction, modeled on Illinois Pattern Jury
       Instructions, Civil, Nos. 30.01, 30.05, and 30.05.01 (2006), instructing the jury as to the
       possible elements of damages claimed by the plaintiff. The modified instruction informed
       the jurors that they could award damages for pain and suffering and also for emotional
       distress, if they determined that such damages were proved to have resulted from the
       defendant’s negligence.
¶ 19       The defendant initially contends that the modified instruction was improper because
       damages for emotional distress may be awarded only where a cause of action for intentional
       or negligent infliction of emotional distress has been asserted, which the plaintiff did not do
       in this case. In fact, the rule in Illinois is just the opposite. Damages for emotional distress
       are available to prevailing plaintiffs in cases involving personal torts such as medical
       negligence. Clark v. Children’s Memorial Hospital, No. 108656, slip op. at 28 (Ill. May 6,
       2011) (citing Cummings v. Jha, 394 Ill. App. 3d 439, 915 N.E.2d 908 (2009)).
¶ 20       The defendant further claims that the modified jury instruction and the verdict form,
       which included a separate line for emotional-distress damages, induced the jury to grant the
       plaintiff a double recovery for her mental pain and suffering. This claim, however, is not
       supported by the record. It is presumed that the jury understood and followed the court’s
       instructions. See McDonnell v. McPartlin, 192 Ill. 2d 505, 535, 736 N.E.2d 1074 (2000);
       Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 100, 887 N.E.2d 656 (2008). Here, there is
       no indication in the record that the jury was confused in its determination of the appropriate
       amount of damages for the plaintiff’s mental pain and suffering. Also, the defendant did not
       submit any special interrogatories, the answers to which would have demonstrated whether
       a double recovery had been awarded. In the absence of some supporting evidence in the
       record, the defendant’s claim that the modified instruction and the verdict form induced the
       jury to award the plaintiff a double recovery for her mental distress is mere conjecture.
       Consequently, we find no abuse of discretion in the trial court’s instructions to the jury.
¶ 21       Finally, the defendant claims that the trial court erred in denying his request for a setoff
       based on the plaintiff’s prior settlement with Alexian Brothers. The determination of whether
       a defendant is entitled to a setoff is a question of law and, therefore, subject to de novo
       review. Thornton, 237 Ill. 2d at 115-16.
¶ 22       Although the settlement of claims is to be encouraged, Illinois also has a public policy
       of limiting a plaintiff to one recovery for a single injury and of protecting the financial
       interests of nonsettling parties. Patton v. Carbondale Clinic, S.C., 161 Ill. 2d 357, 372, 641
       N.E.2d 427 (1994). Thus, section 2(c) of the Joint Tortfeasor Contribution Act provides that


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       a settlement reduces the amount of recovery against another defendant liable for the same
       injury by the amount stated in the release, or by the actual consideration paid for the release.
       740 ILCS 100/2(c) (West 2008); Pasquale v. Speed Products Engineering, 166 Ill. 2d 337,
       368, 654 N.E.2d 1365 (1995); Patton, 161 Ill. 2d at 372. Generally, a nonsettling party
       seeking a setoff bears the burden of proving what portion of a prior settlement was allocated
       or attributable to its share of the liability. Pasquale, 166 Ill. 2d at 369. Yet, a problem arises
       where a prior settlement has not been allocated among the various claims at issue in the
       earlier case. See Patton, 161 Ill. 2d at 370-71 (citing Betts v. Manville Personal Injury
       Settlement Trust, 225 Ill. App. 3d 882, 900, 588 N.E.2d 1193 (1992)). The supreme court had
       held that, where a settlement provides compensation for multiple claims and the plaintiff fails
       to apportion the damages accordingly or request that the trial court exercise its discretion to
       apportion the settlement proceeds, a subsequent defendant is not obligated to bear the burden
       of proving what portion of the plaintiff’s previous settlement should be set off or be denied
       a setoff. Patton, 161 Ill. 2d at 371 (citing Betts, 225 Ill. App. 3d at 900); see also Pasquale,
       166 Ill. 2d at 369 (citing Patton, 161 Ill. 2d at 370).
¶ 23        Here, the defendant presented evidence that the plaintiff and her former husband received
       a payment of $70,000 in exchange for a covenant not to sue Alexian Brothers. Because that
       settlement was not apportioned in any way, it was the plaintiff’s, rather than the defendant’s,
       burden to establish that the entire unallocated settlement amount of $70,000 was not
       attributable to her medical negligence cause of action, as opposed to Aleco’s claim for loss
       of consortium. See Patton, 161 Ill. 2d at 370-71 (citing Betts, 225 Ill. App. 3d at 900). In
       light of the fact that the defendant was not a party to the prior settlement negotiations and
       could not request that the settlement be allocated at the time it was executed, we hold that
       the defendant should not bear the burden of the plaintiff’s failure to properly apportion the
       settlement with Alexian Brothers.
¶ 24        Moreover, contrary to the plaintiff’s assertion, the trial court that presided over the instant
       litigation against the defendant could not apportion the Alexian Brothers settlement because
       it was not involved in approving that settlement and did not hear any of the evidence
       pertaining to Aleco’s loss-of-consortium claim. See Patton, 161 Ill. 2d at 370. Since the prior
       settlement was accomplished outside of all judicial purview, the defendant had no
       opportunity to seek a judicial apportionment and cannot be faulted for failing to do so.
¶ 25        In reaching this conclusion, we note that the cases cited by the plaintiff predate Patton
       and are factually distinguishable in that they did not involve circumstances where the
       defendant seeking the setoff was not a party to the litigation in which the prior settlement was
       reached and approved. See Kipnis v. Meltzer, 253 Ill. App. 3d 67, 625 N.E.2d 320 (1993);
       Johnson v. Belleville Radiologists, Ltd., 221 Ill. App. 3d 100, 581 N.E.2d 750 (1991);
       Houser v. Witt, 111 Ill. App. 3d 123, 443 N.E.2d 725 (1982); see also Thornton, 237 Ill. 2d
       at 117 (recognizing that the holding in Patton applied only where the defendant was not a
       party to the case underlying the prior settlement); Pasquale, 166 Ill. 2d at 372 (same).
       Consequently, we hold that the trial court should have granted the defendant’s posttrial
       motion for a setoff.
¶ 26        Pursuant to our authority under Illinois Supreme Court Rule 366(a) (eff. Feb. 1, 1994),
       we now grant that motion, find that the defendant is entitled to a setoff of $70,000 against

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       the jury’s verdict of $500,500, and so order. See Dick v. Gursoy, 124 Ill. App. 3d 185, 189,
       471 N.E.2d 195 (1984). In all other respects, the judgment of the circuit court of Cook
       County is affirmed.

¶ 27      Affirmed in part, reversed in part, and modified.




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