                                                SIXTH DIVISION
                                                April 7, 2006




No. 1-04-3217

MARIA STRINO and FRANK STRINO,             )    Appeal from the
Individually and as Special                )    Circuit Court of
Administrators of the Estate of            )    Cook County
Joseph Strino, Deceased,                   )
                                           )
            Plaintiffs-Appellants,         )
                                           )
       v.                                  )
                                   )
PREMIER HEALTHCARE ASSOCIATES, P.C.,       )
and JAMES R. LINDEMULDER,                  )    Honorable
                                           )    Robert Gordon,
            Defendants-Appellees.          )    Judge Presiding


       PRESIDING JUSTICE McNULTY delivered the opinion of the

court:

       Maria and Frank Strino's son Joseph died at 20 months of

age.    The Strinos, as individuals and on behalf of Joseph's

estate, sued the obstetrician who delivered Joseph for

negligently causing the death and for negligently causing Joseph

to suffer during his brief life.     The obstetrician argued that he

did not act negligently, and Frank, acting on Maria's behalf,

refused the medical procedure that would have given Joseph the

best chance of survival.    After two days of deliberations the

jury returned a general verdict in favor of the obstetrician.

       On appeal plaintiffs argue that the court should have

excluded evidence of Frank's acts because Frank did not act as

Maria's agent for medical decisions.    Plaintiffs also object to

other evidentiary rulings, jury instructions, and answers to the

jury's questions.    We hold that defendants presented sufficient
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evidence to support a finding that Frank acted as Maria's agent.

 The trial court did not abuse its discretion by sustaining an

objection to the cross-examination of the obstetrician.

Plaintiffs waived objection to other evidentiary rulings and the

responses to jury questions.    We cannot determine whether the

instruction on contributory negligence had any prejudicial effect

because plaintiffs did not request a special interrogatory to

determine whether the jury decided in defendants' favor on the

negligence issue.    Therefore, we affirm the judgment of the trial

court.

                              BACKGROUND

     Maria chose Dr. James Lindemulder to serve as her

obstetrician in September 1996.     Although Lindemulder knew that

Maria delivered her first baby by cesarean section, he

recommended that she try to deliver the baby due in 1997 by

vaginal birth.    Doctors refer to the procedure as a vaginal birth

after cesarean, or VBAC for short.      Maria agreed to try a VBAC.

Lindemulder told her that if the VBAC failed he would perform a

cesarean section.

     Rush-Copley Medical Center admitted Maria on March 27, 1997,

for delivery of her baby.    She signed all consent forms the

hospital asked her to sign.    Lindemulder prescribed medicine to

induce labor.    Labor did not progress far that day.   The

following morning Maria received more medicine to induce labor.

After 10 a.m. she began to experience hyperstimulation, in that


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her uterus contracted too frequently.      The fetal heart rate

decreased, then rebounded.   The fetus underwent further episodic

decelerations, and Maria endured further hyperstimulation over

the following hours.

     Around 3:45 p.m. fetal heart decelerations, unrelieved by

efforts to restore the heart rate, caused the nurse to alert

Lindemulder.   When Lindemulder arrived he suggested use of

forceps to deliver the fetus immediately.      Frank told Lindemulder

not to use the forceps.   Lindemulder performed an emergency

cesarean section.   He found the uterus ruptured.     At 4:10 p.m. he

delivered Joseph through the rupture, at the site of the scar

from the prior cesarean section.       Joseph showed almost no signs

of life.

     Joseph's pediatrician found that Joseph had suffered severe

damage, largely due to lack of oxygen during the birthing

process.    Joseph required constant care until he died in November

1998.

     Maria and Frank, as individuals and on behalf of Joseph's

estate, sued Lindemulder and his employer, Premier Healthcare

Associates, in 2000.   They sought to recover for negligent

failure to warn Maria of the risks of VBAC and of the risk to the

fetus from undergoing the cesarean section instead of using

forceps for faster delivery.   Plaintiffs also charged Lindemulder

with negligent failure to deliver the fetus in a timely manner,

either by cesarean section before 3 p.m. on March 28, 1997, or by


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forceps.    They claimed that Lindemulder's negligence caused

Joseph's death.      In a separate count they sought to recover, on

behalf of the estate, for Joseph's suffering during his short

life.   The parties refer to the claim as a survival action

because, under the provisions of the Probate Act of 1975 (755

ILCS 5/27-6 (West 2000)), the claim remains viable after the

claimant's death.      Lindemulder answered that he fully complied

with the standard of care, and plaintiffs acted with contributory

negligence by denying his request for permission to use the

forceps.

     In Lindemulder's deposition plaintiffs' attorney pursued the

theory that Lindemulder should have used the forceps to deliver

Joseph sooner:

             "Q.    Do you think that the use of forceps in a

     vaginal delivery *** would be considered a battery if

     you didn't get her consent?

             A.    In a normal circumstance, no, but I was

     specifically forbidden by her husband *** as he [said]

     definitely, quote, unquote, I will sue you if you use

     them.

             Q.    Did he say that to you?

             A.    He said that quote, unquote."

     At trial Maria testified that Lindemulder did not warn her

of the risk of uterine rupture and neurological damage during

VBAC.   Lindemulder did not inform her that he needed to use


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forceps to save the baby's life; if he had so warned her, she

would have told him to use the forceps.     Maria admitted that

Lindemulder told Frank, in Maria's hospital room, that he wanted

to use the forceps, and Frank answered that he preferred a

cesarean section.   Maria testified that she made no response at

all to the suggestion because Lindemulder never asked her whether

she wanted him to use the forceps.

     Lindemulder admitted at trial that he did not specifically

recall discussing the risks of VBAC with Maria.     He swore that he

had a standard procedure for informing any candidate for a VBAC

of certain risks, which he listed at trial, including the risk of

uterine rupture.    When he arrived to deliver the baby at 3:50

p.m. on March 28, 1997, he examined Maria and found the baby's

head in position for a delivery with the aid of forceps.     He told

her: "The heart tones are down.     *** [T]he baby needs to come

out."   He told her he would use the forceps.    Frank then stepped

between him and Maria and said, "I will kick your ass.     *** Just

do a cesarean section."   Lindemulder said that he could deliver

the baby in 2 minutes with the forceps, but a cesarean section

would take 10 to 15 minutes.    Frank said, "No, I want a cesarean

section."   Lindemulder went directly to Maria, at the side of her

bed, and again stressed the need for immediate delivery, saying,

"[L]et me use *** forceps right now.     The baby needs to come

out."   He swore that Maria "closed her eyes, shook her head no

and looked away."


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     Plaintiffs' attorney sought to impeach Lindemulder with his

deposition testimony:

            "Q.    Doctor, it is your testimony that Frank

     Strino said to you I'm going to kick your ass.            Is that

     right?

            A.    Yes ***.

                                     * * *

            Q.    Now, in that [medical] record is there any

     memorialization of that?

                                     * * *

            A.    No, there's not.

            Q.    I asked you about those conversations at your

     deposition, didn't I?

            A.    I'm not sure you asked me about what Mr.

     Strino said.

            Q.    Anywhere in this deposition did you tell me or

     any of the other lawyers there that Mr. Strino said

     that to you?

            A.    You did not ask me that question.

            [Defendants' counsel]:          That is not inconsistent.

     ***

            THE COURT:    Objection sustained."

Plaintiffs' attorney made no further attempt to use the

deposition testimony for impeachment.

     Plaintiffs' expert testified that Lindemulder violated the


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standard of care by giving Maria inadequate warnings about the

medical procedures and by failing to deliver the baby by cesarean

section much earlier on March 28, 1997, when the hyperstimulation

and deceleration of the fetal heart indicated an increased risk

due to the possibility of uterine rupture.    Defendants' expert

found that Lindemulder gave Maria all appropriate warnings and he

followed correct procedures for delivering the baby.      In

particular, he said that Lindemulder appropriately informed Maria

of the need for rapid delivery and the advisability of using

forceps.

     Defendants sought instructions concerning their theory that

Frank acted as Maria's agent when he disallowed use of forceps.

Plaintiffs objected that defendants had presented no evidence

that could support a finding of agency.   The court gave the

pattern instruction for the jury to decide the issue of agency.

     Plaintiffs asked the court to use a pattern instruction that

provides:

            "Before a [doctor] may [use forceps] upon a

     patient, the consent of the patient for the [use of

     forceps] must be obtained unless an emergency arises

     and treatment is required in order to protect the

     patient's health, and it is impossible or impracticable

     to obtain consent either from the patient or from

     someone authorized to consent for him.    Whether there

     was such an emergency and whether it was impossible or


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     impracticable to obtain consent is for you to decide."

      Illinois Pattern Jury Instructions, Civil, No. 105.07

     (2005) (hereinafter IPI Civil (2005)).

The court refused the instruction, instead using the pattern

instruction concerning informed consent.

     Plaintiffs also objected to submission of a contributory

negligence instruction for the defense against the estate's

survival action.   The judge admitted some doubt as to "whether

contributory negligence would apply to the survival action."    The

judge said of the instruction:

     "I guess we'll leave it in and we can sort it out

     later.

                                 * * *

            *** [I]f I take your position and I find that in

     *** the survival action that there was no contributory

     negligence, and if I'm reversed on appeal, what's going

     to happen is the defendant will receive a new trial.

     But if we leave it in and research it and see what the

     law is on that point, I really don't know at this

     point."

     The jury sent the judge several written questions during the

lengthy deliberations.   The first question says:

            "If we all agree on point D count 1 of the

     plaintiff's complaint, but undecided about the other 3

     points -- Does that fulfill finding the defend[a]nt


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     negligent, or must we resolve the other 3 points?"

The record does not show the court's response.    Next, the jury

asked, "Is there a distinction between the defend[a]nts setting

up the affirmative defense to the claim of negligence as opposed

to be contrib[u]tory negligence. [sic]"    The judge wrote back,

without objection, "There is no real distinction.    Contributory

negligence is an affirmative defense for all practical purposes."

     After almost a full day of deliberations, the jury wrote:

            "We have been deliberating intens[e]ly the same

     set of questions since this morning -- we voted early

     this morning and our most recent vote shows no progress

     to either side[.]   What do you advise?"

Over defendants' objection, the court read the jury the

instruction our supreme court framed for deadlocked juries.        See

People v. Prim, 53 Ill. 2d 62, 75-76 (1972).
     Later that evening the jury sent another note informing the

court that they had made no progress.   The last vote, late that

night, informed the court that some jurors found plaintiffs'

expert persuasive on the need for an earlier delivery, and the

other jurors found defendants' expert persuasive.

     The following afternoon, with deliberations ongoing after

two full days, defendants' attorney moved for a mistrial.     He

argued that any verdict would likely reflect a compromise.

Plaintiffs and their attorney remained silent.   The judge denied

the motion, but he decided to reread to the jury all of the


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instructions.    At the outset of the rereading, he explained to

the jury:

     "I'm going to read these things to you slowly and hope

     that you can digest it and maybe that's not even the

     question.

            I don't know what the problem is.   *** But at

     least we'll do that and see if that will help at all."

Later that day the jury returned a general verdict in favor of

defendants.

                               ANALYSIS

     On appeal plaintiffs first argue that the court should have

stricken Lindemulder's testimony that Frank told him not to use

the forceps, and the court should not have instructed the jury on

principles of agency, because defendants failed to present

evidence that could support a finding that Frank acted as Maria's

agent for medical decisions.    We review the court's decisions on

the admission of evidence and jury instructions for abuse of

discretion.

     Plaintiffs rely primarily on Fettes, Love & Sieben, Inc. v.
Simon, 46 Ill. App. 2d 232, 233-34 (1964), in which the court

held:

            "Proof of the existence of the marital relation

     does not establish the husband's agency for his wife.

     The agency of the husband is a question of fact to be

     proved by direct or circumstantial evidence. There is


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     no presumption that the husband has authority to act

     for the wife. In an action *** to hold [the wife]

     responsible for the act *** of her husband, [the party

     claiming agency] has the burden of showing the agency

     and authority of the husband or a ratification by the

     wife."

     In another case involving the alleged agency of a husband

acting for his wife, the court elaborated:

     "[A]gency may be established and its nature and extent

     shown by circumstantial evidence, and reference may be

     had to the situation of parties and property, acts of

     parties, and other circumstances germane to the

     question. ***

            ***

            An agent's authority may be presumed from silence

     of the alleged principal when he knowingly allows

     another to act for him as his agent, and the agent's

     scope of authority may be determined by what persons of

     reasonable prudence, *** dealing with the agent, might

     rightfully believe him to have on the basis of the

     principal's conduct."    Elmore v. Blume, 31 Ill. App. 3d
     643, 647 (1975).

     Here, Lindemulder testified that when he told Maria that he

needed to use forceps to deliver the baby immediately, Frank

intervened and asked him to perform the cesarean section instead.


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 Maria admitted she heard Frank make this request and she said

nothing.    A reasonable person might conclude from that silence in

these circumstances that Maria implicitly authorized Frank to

speak on her behalf.   Lindemulder testified that when he asked

her directly if he could use the forceps, "she shook her head

no," ostensibly ratifying her husband's forceful request.    We

find that the defense presented sufficient evidence to create an

issue of fact, for the jury to resolve, concerning Frank's

authority to refuse the forceps procedure for Maria.    The trial

court committed no error by admitting into evidence Lindemulder's

testimony regarding Frank's acts in the hospital.    The court also

correctly gave the pattern instructions on agency.

     Next, plaintiffs challenge a ruling on cross-examination.

Plaintiffs' counsel asked Lindemulder, "[I]n this deposition did

you tell me *** that Mr. Strino said ['I will kick your ass'] to

you?"   Lindemulder answered, "You did not ask me that question."

 His attorney then objected that the evidence showed no

inconsistency, and the court sustained the objection.

     "If a witness fails to mention facts under circumstances

which make it reasonably probable that he would mention them if

true, the omission may be shown as an indirect inconsistency."

Esderts v. Chicago, Rock Island & Pacific R.R. Co., 76 Ill. App.
2d 210, 228 (1966).    The court should not allow the omission as

impeachment unless the omission makes the prior statement

materially inconsistent with the trial testimony.    Tarin v.


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Pellonari, 253 Ill. App. 3d 542, 556 (1993).   We will not reverse

a judgment based on a ruling on cross-examination unless the

court abused its discretion and the ruling prejudiced the

appellant.    McDonnell v. McPartlin, 192 Ill. 2d 505, 533 (2000).

     Here, plaintiffs' counsel asked Lindemulder at the

deposition if the use of forceps would have constituted a battery

against Maria.    Lindemulder answered that it would not normally

be a battery, but in this case Frank said "I will sue you if you

use them."    To a following question of whether Frank actually

said those words, Lindemulder answered, "He said that quote,

unquote."    Lindemulder did not add that Frank also said "I will

kick your ass."

     Lindemulder recounted in the deposition Frank's words that

had most bearing on the question counsel asked, concerning

whether use of the forceps would count as a battery.    The

following question only requested affirmation of whether Frank

said he would sue.   Counsel never asked Lindemulder in the

deposition to repeat verbatim every word Frank said when

Lindemulder asked to use the forceps.   Thus, we cannot say that,

if Frank had said "I will kick your ass," Lindemulder would have

mentioned that fact in response to any question asked in the

deposition.    We cannot say that the trial court abused its

discretion by holding that Lindemulder's trial testimony was not

materially inconsistent with his deposition testimony.

     For their objections to other evidentiary rulings,


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plaintiffs offer bare argument without citation to any law.      We

hold that plaintiffs waived the arguments by failing to cite

applicable authority.    See 188 Ill. 2d R. 341(e)(7); Dillon v.

Evanston Hospital, 199 Ill. 2d 483, 493 (2002).

     Plaintiffs claim that the court should have given IPI Civil

(2005) No. 105.07, which informs the jury that in certain

emergencies a doctor may treat a patient without first obtaining

consent.    The notes on use for the instruction state:

            "This instruction should not be given when the

     issue is informed consent and the cause of action is

     negligence.    This instruction should only be given when

     the cause of action is battery." IPI Civil (2005) No.

     105.07, Notes on Use, at 284.

Plaintiffs ask us to ignore the notes, claiming, without

citation, that the notes "are not authoritative law."     The

proposition may surprise our supreme court, as that court has

often cited the notes on use of pattern instruction as authority

for proper use of the instructions.    E.g., Snelson v. Kamm, 204
Ill. 2d 1, 31 (2003).    The trial judge here, following the notes

on use, correctly decided not to give the instruction for

implicit consent in battery cases, and instead gave the

applicable instruction for informed consent in negligence cases.

     According to plaintiffs, the trial judge committed

reversible error in his responses to the jury's questions during

the lengthy deliberations, and he should have granted a mistrial.


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 But plaintiffs did not, during deliberations, object to the

judge's responses to any of the jury's questions.      The failure to

raise a timely objection to the responses to the jury's questions

waives the issue for this appeal.      Limanowski v. Ashland Oil Co.,

275 Ill. App. 3d 115, 121 (1995).      Plaintiffs also waived any

claim of a right to a mistrial by failing to move for a mistrial

before the jury returned the verdict.      Redmond v. Socha, 216 Ill.

2d 622, 639-40 (2005).

     If plaintiffs had requested other answers to the jury's

questions during deliberations, the trial court would have had an

opportunity to correct any error before the jury returned a

verdict.    And if plaintiffs had moved for a mistrial, the trial

court could have considered grounds for the motion before the

jury returned a verdict.   Parties cannot harbor unspoken

objections pending the jury's verdict and then use belated

objections and motions for mistrial to get a second chance for a

favorable verdict.   Redmond, 216 Ill. 2d at 639.     We will not

reverse the judgment on the basis of the judge's responses to

jury questions, given without objection, and we will not reverse

the judgment for the defendants on the basis of the court's

denial of the defendants' motion for mistrial, where plaintiffs

did not join the motion for mistrial.

     Finally, plaintiffs argue that the court should have

sustained their objection to the contributory negligence

instruction in the survival action.      Defendants argue that, under


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the "two issue" rule (Nimetz v. Cappadona, 596 A.2d 603, 607

(D.C. 1991)), plaintiffs waived this issue because plaintiffs did

not request a special interrogatory that would have clarified the

basis for the verdict in the survival action.    In general:

     "[W]here there are two causes of action, or two

     defenses, thereby raising separate and distinct issues,

     and a general verdict has been returned, and the mental

     processes of the jury have not been tested by special

     interrogatories to indicate which of the issues was

     resolved in favor of the successful party, it will be

     presumed that all issues were so determined; and that,

     where a single determinative issue has been tried free

     from error, error in presenting another issue will be

     disregarded."    H.E. Culbertson Co. v. Warden, 123 Ohio
     St. 297, 303, 175 N.E. 205, 207 (1931).

Illinois courts, like the courts of most states (see Nimetz, 596

A.2d at 607 (and cases cited therein)), have adopted the "two

issue" rule.    Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987);
Krklus v. Stanley, 359 Ill. App. 3d 471, 479 (2005).     The rule

applies to errors in instructions, and the Ohio Supreme Court

applied it to a case in which a plaintiff who sued in negligence

objected to a contributory negligence instruction.     Knisely v.

Community Traction Co., 125 Ohio St. 131, 137, 180 N.E. 654, 656

(1932).     The court refused to address the issue on appeal

because, in the absence of a special interrogatory, the court


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could not determine whether the jury found in the defendant's

favor on the negligence issue.    If the jury so found, any error

in the contributory negligence instruction would have had no

effect on the verdict.

     Here, too, defendants presented evidence that Lindemulder

did not act negligently, along with evidence that Maria and Frank

acted with contributory negligence.      If the jurors decided in

defendants' favor on the negligence issue, they had no need to

decide the contributory negligence claim.      Because neither party

submitted special interrogatories, we cannot determine from the

general verdict whether any error in the contributory negligence

instruction affected the verdict.       Accordingly, we hold that the

alleged error in allowing the jury to consider contributory

negligence as a defense to the survival action does not warrant

reversal of the judgment here.

     Maria's acts when she heard Frank respond to Lindemulder's

suggestion of using forceps can support an inference that she

permitted Frank to act as her agent for purposes of medical

decisions.   The trial judge did not abuse his discretion by

admitting Lindemulder's testimony concerning Frank's response.

The judge also did not abuse his discretion by sustaining

defendants' objection to the single question plaintiffs asked

Lindemulder about his deposition.       The judge correctly gave the

pattern instruction on agency and denied the pattern instruction

on consent designed for cases in which the plaintiff charges a


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medical professional with battery rather than negligence.

Plaintiffs waived other evidentiary objections for this appeal by

failing to cite relevant authority.   They waived any issue

concerning responses to jury questions by failing to object at

trial.   Their failure to move for mistrial forecloses them from

charging the court with reversible error for failing to declare a

mistrial.   We cannot determine whether the instruction on

contributory negligence in the survival action had any

prejudicial effect because, without a special interrogatory, we

cannot determine whether the jury decided in defendants' favor

based on their expert's testimony that they committed no

negligence.   Accordingly, we affirm the trial court's judgment.

     Affirmed.

     TULLY and O'MALLEY, JJ., concur.




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