Ruperd v. Ryan
Annotate this Case
No. 2--96--0391
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
CONSTANCE RUPERD and ) Appeal from the Circuit
STEPHEN RUPERD, ) Court of Lake County.
)
Plaintiffs-Appellants, )
) No. 92--L--67
v. )
)
ROBERT A. RYAN, and PLASTIC )
AND COSMETIC SURGERY ) Honorable
ASSOCIATES, S.C., ) Patrick N. Lawler and
) William D. Block,
Defendants-Appellees. ) Judges, Presiding.
______________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
Plaintiffs, Constance and Stephen Ruperd, appeal the jury's
finding defendant, Dr. Robert A. Ryan, not guilty of medical
malpractice pertaining to Constance Ruperd's (Connie's) foot
surgery. On appeal, the plaintiffs contend that the trial court
erred in not granting their motion for a directed verdict at the
close of the plaintiffs' evidence. In the alternative, the
plaintiffs argue that they are entitled to a new trial because (1)
the court erroneously admitted certain evidence; and (2) the court
administered erroneous jury instructions that prejudiced the
plaintiffs. We affirm.
Nonpublishable material under Supreme Court Rule 23 omitted.
Dr. Ryan testified that he first met Connie in 1988. Dr. Ryan
stated that at that time he excised warts on Connie's face and her
elbow. Dr. Ryan admitted, however, that the 1988 reports and
charts indicated that "moles," not warts, were excised at that
time. Dr. Ryan stated that Connie returned to his office on
January 18, 1990, requesting information about breast augmentation.
Dr. Ryan said that he scheduled the surgery for January 22, 1990,
and gave Connie a consent form. Dr. Ryan testified that he did not
remember whether he discussed any alternatives to the plantar wart
surgery with Connie, but acknowledged that his records did not
indicate that any alternatives were discussed.
Dr. Ryan stated that on January 22 Connie arrived for the
surgery and signed the consent form after acknowledging that she
had read it. Dr. Ryan summarily described the consent form Connie
signed and admitted that the word "wart" did not appear on the
page, although the form did go into detail regarding the breast
augmentation. Dr. Ryan indicated that "fulgration 'R' plantar
wart" was handwritten at the top of the consent form, and, although
there was no date next to the notation, he believed it was written
on January 18 before Connie was given the consent form.
Dr. Ryan testified that Connie's next office visit took place
on February 1, 1990. Dr. Ryan stated that his report indicated
that the plantar aspect of Connie's right foot was sore but healing
well and that Connie should return in one month.
According to Dr. Ryan's records, Connie returned on February
23 and saw Dr. Kontrick. The records report that the "wounds on
ball of feet is [sic] clean, healing is slow. Patient was given an
estimate for return to work on the 19th of next month."
Dr. Ryan testified that Connie's next office visit was on
March 26, 1990. He stated that on March 26 Connie's foot was
"swollen red and shiny" and that her toe was healing very well.
Dr. Ryan said that he diagnosed reflex sympathetic dystrophy (RSD)
of her foot at that time and explained the condition to her. Dr.
Ryan testified that RSD is a difficult syndrome to understand and
that basically it is a syndrome that "no one can explain" but that
in most cases, given some time, it would resolve itself. Dr. Ryan
"fitted" Connie for a Jobst stocking and told her to return in two
weeks.
Dr. Ryan testified that he saw Connie next on March 29, 1990,
at which time he performed an ankle block on Connie's foot. Dr.
Ryan said that to "the best of his knowledge" he dictated a record
of the ankle block, but acknowledged that no record existed
regarding that visit or the block. Dr. Ryan said also that Connie
visited his partner, Dr. Kontrick, on March 30, 1990, but that the
records did not indicate that visit took place either.
Dr. Ryan stated that the last time he saw Connie was when
Connie was at Victory Memorial Hospital. Dr. Ryan denied telling
Connie that she should go to the Lake Forest Pain Clinic instead of
going to another hospital in Milwaukee.
Dr. Ryan also testified regarding the plaintiffs' allegations
that he intentionally engaged in certain conduct with the attempt
to obstruct justice. Before trial, the plaintiffs moved for
judgment on the grounds that Dr. Ryan obstructed justice by
altering Connie's medical records, soliciting Dr. Herman to alter
Connie's records, exerting peer pressure upon the plaintiffs'
expert, and attempting to obtain Connie's psychological records.
At trial, Dr. Ryan offered the following explanations for his
conduct.
First, Dr. Ryan explained why he had two different clinical
data sheets regarding Connie's condition. Dr. Ryan stated that a
report was transcribed from his dictation tape around March 26,
1990. Dr. Ryan said that when he later reviewed the report he
noticed that it was partially inaccurate. Accordingly, he
redictated Connie's January 18, January 22, February 1, February
23, March 5, and March 26 entries. Dr. Ryan acknowledged that one
of the reasons he redictated the entries was because he thought
Connie was angry with him and that she might file a lawsuit against
him. Dr. Ryan stated that the last time he made any changes or
corrections on the clinical data sheets was January 10, 1992.
Dr. Ryan also explained the changes he made on Connie's
clinical data sheet. Regarding Connie's office record for her
January 18 visit, Dr. Ryan said that he wrote, "Cheryl, give her
the entire packet," and "redone and not the original but sent
anyway" on Connie's records. Dr. Ryan said that the packet
referred to a folder that was given to patients having surgery and
concerned the issue of informed consent. He then acknowledged that
Cheryl was not working for him in 1990 and that it would have been
"Pam" who would have given Connie the folder.
Dr. Ryan stated also that he added an entry to the January 18
office visit. Dr. Ryan said that he added the notation, "plan to
do the plantar warts at the same time the augmentation is done.
Complications of painful scars, recurrence, et cetera, were
discussed." Dr. Ryan admitted that the notation referred to the
issue of informed consent.
Dr. Ryan then testified that he added the words "severe pain"
and "[the foot] is slightly warm" to the March 26 entry, as well as
noting, "I'm sure the patient is developing reflex sympathetic
dystrophy, i.e. causalgia of the foot." Finally, Dr. Ryan stated
that he added, "I have referred [Connie] to Dr. Haq for possible
sympathetic block," which was not included on Connie's original
clinical data sheet.
Second, Dr. Ryan explained his reasons for asking other
doctors to telephone Dr. Donald Bolt, the plaintiffs' expert in the
case. Dr. Ryan testified that he telephoned Dr. Ellenby prior to
the discovery deposition of Dr. Bolt. Dr. Ryan reported that in
his conversation with Dr. Ellenby he asked Dr. Ellenby to telephone
Dr. Bolt and ask Dr. Bolt "if he had seen all of the records in
this case or if he had seen the patient in this case." Dr. Ryan
said that he also called Dr. Daniel Mann, a plastic surgeon in
Florida, before Dr. Bolt's deposition and asked him to call Dr.
Bolt and ask whether he had seen the records or examined the
patient in the case. Dr. Ryan stated that he did not speak with
Dr. Ellenby or Dr. Mann again before Dr. Bolt's deposition.
Dr. Ryan next testified that he wrote a letter to Dr. Timothy
Lynch, a psychologist, on March 6, 1992, asking for a "summary" of
his findings concerning Connie. Dr. Ryan said that he never spoke
to or received anything from Dr. Lynch. Dr. Ryan said that he then
wrote a letter to Dr. Abderholden asking him to write to Dr. Lynch
to request a summary. Dr. Ryan stated that he did not believe that
Dr. Abderholden ever wrote the letter. Dr. Ryan acknowledged that
at the time he wrote the letters he was already a defendant in the
lawsuit.
Nonpublishable material under supreme Court Rule 23 omitted.
I.
We turn first to the plaintiffs' argument that the trial court
erred in failing to direct a verdict for the plaintiffs on the
issue of informed consent. A trial court's denial of a plaintiff's
motion for directed verdict should be upheld unless the evidence,
when viewed in the light most favorable to the defendant, so
overwhelmingly favors the plaintiff that no contrary verdict can
stand. Walter v. Carriage House Hotels, Ltd., 164 Ill. 2d 80, 86
(1995). Indeed, even if a jury returns a verdict for the defendant
after the trial court denies a plaintiff's motion for a directed
verdict at the close of all the evidence, an appellate court may
reverse the trial court and remand for a new trial on damages only,
if the record reveals no reasonable basis for a verdict for the
defendant. Calvetti v. Seipp, 37 Ill. 2d 596, 599 (1967).
Nonpublishable material under Supreme Court Rule 23 omitted.
The plaintiffs contend also that a directed verdict should
have been granted in their favor at the close of all the evidence
because the defendant's conduct before and during the trial
amounted to an obstruction of justice. Specifically, the
plaintiffs refer to Dr. Ryan's soliciting other physicians to call
Dr. Bolt to question him about what he was going to say in his
deposition, Dr. Ryan's having Dr. Herman alter Connie's hospital
records, Dr. Ryan's contacting Dr. Lynch in an attempt to obtain
Connie's psychological records, Dr. Ryan's altering his own office
records concerning Connie's treatment, and Dr. Ryan's destroying
records of the ankle block procedure, as conduct that constituted
obstructing justice.
Like the trial court, we find Dr. Ryan's behavior in this case
egregious and appalling. However, we find that Dr. Ryan's conduct
does not rise to that which results in a default judgment for the
plaintiffs. See Sander v. Dow Chemical Co., 166 Ill. 2d 48, 67-68
(1995) (sanctions that result in a default judgment are drastic
sanctions and should only be employed when it appears that all
other enforcement efforts of the court have failed to advance the
litigation). Instead, we agree with the defendant that the
sanctions the trial court imposed adequately remedied the problem.
A trial court has broad discretion in determining whether the
facts of a given case merit the imposition of sanctions. Sander,
166 Ill. 2d at 67. Indeed, a court's decision to impose sanctions
is entitled to considerable deference on review and will not be
reversed absent an abuse of discretion. Spiegel v. Hollywood
Towers Condominium Ass'n, 283 Ill. App. 3d 992, 1001 (1996).
Prior to trial, the plaintiffs filed a motion for default
judgment and sanctions, alleging that the accumulated misconduct of
Dr. Ryan amounted to an obstruction of justice. The trial court
held three hearings concerning the plaintiffs' motion and
thereafter entered an order that imposed various sanctions on Dr.
Ryan, including paying attorney fees and costs the plaintiffs had
incurred in connection with the proof of the discovery violations.
The trial court's order provided also that the plaintiffs could
admit into evidence the various versions of Dr. Ryan's office
records. Further, the order stated that the jury would be
instructed relative to Dr. Ryan's improperly communicating with
the other physicians and obtaining the falsification of records.
The order explained that the jury would be allowed to draw
inferences of guilt if it found that the defendant solicited the
alteration of the records and consider any improper communications
negatively against the defense. Finally, we note that, prior to
the hearings and order, the trial court prohibited the defendant
from continuing a deposition of Dr. Lynch.
We find that the trial court's instituting these sanctions and
other measures instead of granting the plaintiffs' motion for a
default judgment does not amount to an abuse of discretion.
Instead, a review of the record concerning each of the plaintiffs'
allegations shows that the trial court imposed sanctions on Dr.
Ryan's conduct where there was sufficient evidence that his conduct
was improper and then allowed the plaintiffs "wide latitude" at
trial to adduce evidence of the other alleged acts of misconduct.
As the purpose behind imposing discovery sanctions is to ensure
that full discovery occurs, we cannot say that the trial court's
decision to allow the trial to proceed was erroneous. See Hartnett
v. Stack, 241 Ill. App. 3d 157, 172-73 (1993).
The plaintiffs contend that, even if it was inappropriate for
the trial court to grant the motion for judgment prior to trial,
the motion should have been granted after the trial because at that
time the evidence before the court "was sufficient" to show that
the defendant's accumulated conduct amounted to an obstruction of
justice that warranted a judgment in their favor. We disagree. As
the plaintiffs contend that their motion for judgment was based on
Dr. Ryan's accumulated misconduct, we will discuss briefly each of
the plaintiffs' allegations below.
First, the plaintiffs contend that the evidence shows that Dr.
Ryan solicited peer pressure on Dr. Bolt by calling other doctors
and having them talk to Dr. Bolt in an attempt to affect his
testimony. Before trial, at one of the hearings concerning the
plaintiffs' motion for judgment, Dr. Ryan explained his reasons for
contacting Dr. Mann and Dr. Ellenby. Dr. Ryan stated that his
intent was merely to have Dr. Mann and Dr. Ellenby call Dr. Bolt
and ask him whether his testimony would be based on an examination
of Connie, not to convince Dr. Bolt not to testify on behalf of the
plaintiffs. At the close of all the hearings, the trial court
determined that there was insufficient evidence to find that Dr.
Ryan attempted to intimidate Dr. Bolt.
Contrary to the plaintiffs' belief, no new evidence concerning
this matter was presented at trial. At trial, Dr. Ryan repeated
his version of events. Further, Drs. Mann and Ellenby testified in
evidence depositions that they did not attempt to persuade Dr. Bolt
not to testify or to testify in a certain manner. Indeed, although
the plaintiffs argue that Dr. Bolt testified at trial that, in his
conversations with Dr. Mann and Dr. Ellenby, Dr. Mann told him that
Connie was a "wacko" and Dr. Ellenby said that Connie was
"bizarre," we note that Dr. Bolt testified also that he was not
intimidated by the phone calls and that his conversations did not
alter his testimony, opinions, or view of the facts.
Accordingly, we find that the evidence adduced at trial does
not establish, as a matter of law, that Dr. Ryan engaged in any
attempt to intimidate Dr. Bolt. Instead, Dr. Bolt's testimony
raises a question of fact for the jury to decide concerning whether
Dr. Ryan solicited Dr. Ellenby and Dr. Mann to exert peer pressure
on Dr. Bolt. As a result, the jury was properly given an
instruction which stated that it could determine whether Dr. Ryan
attempted to intimidate Dr. Bolt and consider any improper conduct
as evidence of Dr. Ryan's negligence in treating Connie.
Second, the plaintiffs contend that Dr. Ryan solicited Dr.
Herman, an associate of Connie's family practitioner, to alter
Connie's Victory Memorial Hospital (VMH) medical records. At the
hearings for the plaintiffs' motion for judgment before trial, Dr.
Ryan admitted that he had a conversation with Dr. Herman concerning
Connie approximately two years after he referred her to Dr. Herman.
Dr. Ryan stated that he had stopped getting referrals from Dr.
Herman and asked Dr. Herman if it had any connection to Connie's
case. Dr. Ryan said that he then explained Connie's treatment to
Dr. Herman. Dr. Ryan stated that Connie's record "never even came
up" and that he "had no reason to want the record changed." After
the hearings were completed, the court held that the evidence was
insufficient to find, as a matter of law, that Dr. Ryan attempted
to solicit falsification of Connie's VMH records.
At trial, Dr. Ryan testified that he could not remember when
he spoke with Dr. Herman. Dr. Ryan also denied again asking Dr.
Herman to change Connie's record. He stated that he only explained
to Dr. Herman how he treated Connie. Dr. Herman, however,
testified that at some point he talked with Dr. Ryan and Dr. Ryan
told him that the information in Connie's history in Dr. Herman's
record was incorrect. Dr. Herman stated that he then made several
changes in Connie's history contained in the record, changes that
he believed were the result of Dr. Ryan's conversations with Connie
that would make his records more accurate. As he did in his
deposition, Dr. Herman stated that he could not remember whether he
made the changes on his own initiative after learning that the
information contained in Connie's history was incorrect or whether
Dr. Ryan told him to make the changes. Dr. Herman acknowledged,
however, that in an affidavit taken earlier he stated that Dr. Ryan
told him to make the changes.
As was true with the allegations of Dr. Ryan's exerting peer
pressure upon Dr. Bolt, we find that the plaintiffs' contention
that Dr. Ryan solicited Dr. Herman to falsify Connie's records was
a fact question for the jury to determine. Indeed, we note that
the jury was instructed to consider any evidence of falsification
of records as evidence of Dr. Ryan's negligence. Further, as the
defendant argues in his brief, the issue concerning this allegation
is whether Dr. Ryan sought to falsify Connie's record, not whether
he advised Dr. Herman that his medical report contained incorrect
information that should be revised. The record contains evidence
that Dr. Ryan was attempting to falsify records, as well as
evidence that Dr. Herman acted upon his own initiative to correct
information he believed was inaccurate. Accordingly, we agree with
the trial court that the evidence does not establish, as a matter
of law, that Dr. Ryan attempted to have Dr. Herman falsify Connie's
records.
Third, the plaintiffs argue that Dr. Ryan's contacting Dr.
Lynch regarding Connie's psychological records violated the
Petrillo doctrine, which should result in judgment for plaintiffs.
See Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581
(1986). Under the Petrillo doctrine, conferences between the
plaintiff's treating physician and the defense attorney are
prohibited because they violate the physician/patient privilege.
Petrillo, 148 Ill. App. 3d at 593.
After the hearings, the trial court agreed with the plaintiffs
that Dr. Ryan's attempting to discover Dr. Lynch's findings
concerning Connie violated the rule announced in Petrillo.
Accordingly, the court barred the defense from completing the
discovery deposition of Dr. Lynch and sanctioned Dr. Ryan. At
trial, the court conducted a voir dire of Dr. Lynch outside of the
presence of the jury. After Dr. Lynch's testimony, the court noted
its belief that Dr. Lynch and Dr. Ryan may have had a substantive
conversation concerning Connie's condition in violation of the
Petrillo doctrine. The court then barred Dr. Lynch from testifying
and barred the use of Dr. Lynch's records. The court also
instructed the jury that it could consider any improper
solicitation of medical records from any treating physician as
evidence of negligence.
We find that the trial court's sanctions and orders barring
Dr. Lynch from testifying and Dr. Lynch's records from being
admitted were not an abuse of discretion. The plaintiffs argue
that Dr. Ryan's conduct was so abhorrent that it warranted that a
judgment be entered for the plaintiffs. We reiterate, however,
that a judgment for the plaintiffs is a drastic sanction. See
Sander, 166 Ill. 2d at 67-68. Therefore, the trial court's
decision to proceed with the trial and not to grant the plaintiffs'
directed verdict on the ground that Dr. Ryan violated the Petrillo
doctrine was not an abuse of discretion.
Fourth, the plaintiffs contend that Dr. Ryan's altering his
own office records mandated that a judgment be entered for the
plaintiffs. The trial court reached the same conclusion concerning
Dr. Ryan's alterations as it did regarding Dr. Herman's alterations
of Connie's records. Before trial, the court stated that the
evidence did not establish, as a matter of law, that Dr. Ryan
falsified records. Accordingly, the trial court ordered that both
sets of Dr. Ryan's office records could be admitted and that, after
hearing all the evidence, the jury could decide whether any
falsification occurred. As we previously discussed, we find that
such a procedure was not erroneous.
Finally, the plaintiffs "suggest" that Dr. Ryan deliberately
destroyed the medical record of Connie's ankle block, which clearly
amounts to an obstruction of justice. Like the trial court, we
find that there is insufficient evidence in the record to show that
Dr. Ryan destroyed the record of the ankle block. On the contrary,
although the plaintiffs, the defendant, and all the doctors agree
that an ankle block took place, there is no evidence that a record
of the ankle block ever existed. Further, unlike the situation
with the altered office records, Connie never received any record
of the ankle block. We decline to adopt the plaintiffs' reasoning
that the absence of this record, in combination with the altered
records, is enough circumstantial evidence that Dr. Ryan
deliberately destroyed the record. Instead, we find that the more
reasonable explanation of the missing record is that it never
existed.
In any event, we find that the trial court did not err by
finding that, as a matter of law, Dr. Ryan did not solicit peer
pressure on Dr. Bolt, solicit Dr. Herman to falsify his records,
falsify his own office records, and destroy the record of the ankle
block. Further, we find that the court's order requiring Dr. Ryan
to pay some of the plaintiffs' attorney fees, barring Dr. Lynch
from testifying, and barring Dr. Lynch's records from being
admitted were appropriate sanctions for Dr. Ryan's violating the
Petrillo doctrine.
Certainly, although there are many instances of alleged
misconduct in this case and Dr. Ryan did engage in questionable
behavior, a default judgment or directed verdict was not proper
under these circumstances. The cases the plaintiffs cite to where
a default judgment was granted due to a party's misconduct are
distinguishable from this case. In Adcock v. Brakegate, Ltd., 247
Ill. App. 3d 824 (1993), aff'd, 164 Ill. 2d 54 (1994), the court
entered judgment on liability against the defendants after the
defendants refused to produce two witnesses for depositions, and,
in Clymore v. Hayden, 278 Ill. App. 3d 862 (1996), a medical
malpractice action was dismissed after the plaintiff refused to
appear for a deposition. No such allegations were made here.
Instead, the plaintiffs had access to every witness they requested
to depose.
Further, in Farley Metals, Inc. v. Barber Colman Co., 269 Ill.
App. 3d 104 (1994), the trial court dismissed a case after a
lawyer's negligence led to the destruction of evidence. Again,
although the plaintiffs allege in their brief that Dr. Ryan must
have destroyed the record of the ankle block procedure, there is no
proof that the record ever existed.
Finally, we add that, aside from Dr. Ryan's conversations with
Dr. Lynch, the plaintiffs' allegations of misconduct on the part of
Dr. Ryan raised factual questions for the jury to determine. On
each of the remaining allegations, it was disputed as to whether
Dr. Ryan acted with the intent to falsify information or to
intimidate witnesses. Therefore, as we find the record reveals a
reasonable basis for the jury to have determined that Dr. Ryan did
not intend to intimidate Dr. Bolt or falsify records, a directed
verdict was not proper. See Calvetti, 37 Ill. 2d at 599.
II.
The material in this section is not to be published pursuant
to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
III.
The first portion of the material in this section is not to be
published pursuant to Supreme Court Rule 23.
The next four instances of alleged error concern the
instructions the court gave concerning Dr. Ryan's improper
communication with Dr. Lynch, Dr. Ryan's altering his records, Dr.
Ryan's soliciting peer pressure on Dr. Bolt, and Dr. Ryan's
soliciting Dr. Herman to alter Connie's hospital records. The
court tendered instructions regarding this alleged misconduct that
stated that, if the jury found that Dr. Ryan performed those acts,
it could consider that misconduct in deciding whether Dr. Ryan was
negligent in his care and treatment of Connie. The plaintiffs
argue, however, that for each instance of alleged misconduct the
jury should have been instructed that, if it found that Dr. Ryan
performed that behavior, the jury could consider that misconduct as
"an admission of guilt on the part of Dr. Ryan."
In support of their argument, the plaintiffs point this court
to several cases which state that any attempt by a party to
obstruct justice constitutes an admission. See Kearney v.
Brakegate, Ltd., 263 Ill. App. 3d 355 (1994). In Kearney, the
court discussed the principle that a jury is entitled to consider
the destruction, suppression, or fabrication of evidence as an
admission. Kearney, 263 Ill. App. 3d at 360. The issue before the
Kearney court, however, did not involve jury instructions.
Instead, the court discussed whether the trial court erred in
refusing to allow the plaintiff to call a witness who would testify
that the defendant refused to produce him as a witness even after
ordered to do so by the court. Kearney, 263 Ill. App. 3d at 360-
62. Accordingly, Kearney does not stand for the principle that the
words "admission of guilt" should be included in jury instructions.
In fact, the defendant includes in his brief several sources
that demonstrate that the Illinois courts should not include
admissions instructions. For example, Illinois Pattern Jury
Instructions, Civil, No. 4.01 (3d ed. 1995) (hereinafter IPI Civil
3d) states that "[t]he committee recommends that no 'admissions'
instruction be given." IPI Civil 3d No. 4.01. Further, in the
comment to IPI Civil 3d No. 4.02, written by the Illinois Supreme
Court Committee on Jury Instructions, the committee recommends that
no instruction be given on "flight from accident as evidence of
negligence" because an admission instruction would "unduly single
out particular evidence." IPI Civil 3d No. 4.02, Committee Note,
at 29.
Moreover, Illinois courts have expressed concern over using
the word "guilt" in special interrogatories submitted to the jury.
In Erickson v. Aetna Life & Casualty Co., 127 Ill. App. 3d 753
(1984), the court upheld a trial court's decision not to include a
special interrogatory that contained the phrase "guilty of actual
malice." The court explained that the use of the term "guilty"
could create unnecessary ambiguity for the jury because the word is
most often used in a criminal law setting. Erickson, 127 Ill. App.
3d at 766; see also Bernardi v. Chicago Steel Container Corp., 187
Ill. App. 3d 1010, 1021 (1989) (court held that the trial court
should have stricken the word "guilty" from a special interrogatory
because it was misleading).
We find that the trial court correctly declined to use the
plaintiffs' phrase "admission of guilt" in the jury instructions.
Illinois law is clear that admissions should be avoided in
instructions if possible. Further, we are persuaded by the
reasoning in Erickson and Bernardi that the word "guilty" included
in jury instructions could confuse the jury.
It is undisputed that, when deciding whether a particular jury
instruction is misleading, the court should view the instruction in
context with all the given instructions. Netto v. Goldenberg, 266
Ill. App. 3d 174, 184 (1994). In this case, we find that the jury
instructions concerning Dr. Ryan's misconduct were not misleading.
The issue in the case was whether Dr. Ryan negligently treated
Connie. The instructions stated that if the jury determined that
Dr. Ryan engaged in specific misconduct, the jury could consider
that misconduct when deciding whether Dr. Ryan negligently treated
Connie. Consequently, the instructions given relate directly to
the issue of Dr. Ryan's alleged negligence. The jury is left to
decide how much weight Dr. Ryan's misconduct--assuming the jury
determined there was any misconduct--has concerning the issue of
whether he was negligent. We find that such instructions
accurately state the law in Illinois.
The plaintiffs' last instance of alleged error in the jury
instructions concerns the instruction defining informed consent.
The instruction submitted to the jury stated:
"When I use the expression 'informed consent' in this
case, I mean a consent obtained by a plastic surgeon after the
disclosure by the plastic surgeon of those factors which a
reasonably well-qualified plastic surgeon would disclose under
the same or similar circumstances."
See Illinois Pattern Jury Instructions, Civil, No. 105.07.01 (3d
ed. 1990) (hereinafter IPI Civil 3d No. 105.07.01). The plaintiffs
contend that this instruction did not accurately state the law in
Illinois at the time of trial.
Illinois Pattern Jury Instructions (IPI) should be used
exclusively where they correctly and accurately charge the jury.
Netto, 266 Ill. App. 3d at 183. IPI instructions, however, should
be modified if they do not accurately state the law. See Ruffiner
v. Material Service Corp., 116 Ill. 2d 53, 62 (1987).
In this case, the plaintiffs tendered a jury instruction that
replaced the word "factors" in IPI Civil 3d No. 105.07.01 with the
phrase "risks and reasonable alternatives." Accordingly, the
instruction would have indicated that, to obtain informed consent
from a patient, a plastic surgeon had to notify the patient of
those risks and reasonable alternatives which a reasonably well-
qualified plastic surgeon would disclose under the same or similar
circumstances. The plaintiffs argue that this difference is
substantial because Illinois law is clear that a physician must
inform a patient of the reasonable risks and alternatives of a
surgery and the word "factors" does not accurately indicate that
responsibility to the jury.
The defendant argues that the court did not abuse its
discretion in refusing to submit the plaintiffs' instruction
because at the time the trial occurred IPI Civil 3d No. 105.07.01
did not contain the phrase "risk and reasonable alternatives."
Further, the defendant argues that the word "factors" is broader
than the phrase "risks and reasonable alternatives" so the jury was
not prohibited from determining that a failure to inform a patient
of alternatives constituted a lack of informed consent. Finally,
the defendant states that the plaintiffs were able to introduce all
their evidence of risks and reasonable alternatives to the surgery.
Therefore, even if the court abused its discretion in admitting the
instruction, the plaintiffs were not prejudiced.
We have already discussed that Illinois law requires a
physician to inform a patient of the risks and reasonable
alternatives to surgery. Indeed, we note that the December 1995
edition of the IPI instructions includes the words "risks" and
"alternatives" in No. 105.07.01 instead of the word "factors."
Illinois Pattern Jury Instructions, Civil, No. 105.07.01 (3d ed.
1995). Accordingly, the only question remaining is whether the use
of the word "factors" in this case adequately informed the jury
that Dr. Ryan's failing to inform Connie of the risks and
reasonable alternatives to her wart surgery indicated that he did
not receive her informed consent of the procedure. We hold that
the plaintiffs were not prejudiced by having "factors" in the jury
instruction instead of "risks and reasonable alternatives."
First, we note that the plaintiffs were able to introduce all
their evidence that Dr. Ryan failed to inform Connie of the risks
and reasonable alternatives of the surgery. Further, in the
closing argument, plaintiffs' counsel explained to the jury that
Dr. Ryan failed to disclose to Connie that an alternative procedure
was available. Plaintiffs' counsel even stated that "all the
expert witnesses have agreed[] that an element, an essential
element of informed consent[,] is alternative procedures known.
Everybody agreed." In rebuttal, the plaintiffs' counsel reiterated
that, although he had a duty to do so, Dr. Ryan never told Connie
about any alternative treatments. Consequently, the plaintiffs'
claim that the jury was unaware of the law is inaccurate.
Second, we note that while the phrase "risks and reasonable
alternatives" may be more precise than the word "factors," factors,
by its own definition, includes risks and reasonable alternatives.
According to Webster's Dictionary, factors means "something (as an
element, circumstance, or influence) that contributes to the
production of a result." Webster's Third New International
Dictionary 813 (1986). As a result, knowing the risks and
reasonable alternatives of a surgery is one element or "factor"
necessary in giving an informed consent. Therefore, while the IPI
as currently written may be more explicit in defining what
"factors" indicates by substituting the phrase "risks and
reasonable alternatives," we cannot say that the use of the word
"factors" in the jury instruction misled this jury.
Instead, the jury had all the evidence regarding the informed
consent issue before it and could have determined that, although
Dr. Ryan did not inform Connie of any alternative procedures, there
were no reasonable alternatives of which to inform her.
Accordingly, we find that any error the trial court made in
refusing to substitute the phrase "risks and reasonable
alternatives" for "factors" in the jury instruction did not
prejudice the plaintiffs so that a new trial is warranted. See
Thompson v. MCA Distributing, Music Corp., 257 Ill. App. 3d 988,
991 (1994).
Nonpublishable material under Supreme Court Rule 23 omitted.
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed.
Affirmed.
DOYLE and THOMAS, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
CONSTANCE RUPERD and ) Appeal from the Circuit
STEPHEN RUPERD, ) Court of Lake County.
)
Plaintiffs-Appellants, )
) No. 92--L--67
v. )
)
ROBERT A. RYAN, and PLASTIC )
AND COSMETIC SURGERY ) Honorable
ASSOCIATES, S.C., ) Patrick N. Lawler and
) William D. Block,
Defendants-Appellees. ) Judges, Presiding.
______________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
Plaintiffs, Constance and Stephen Ruperd, appeal the jury's
finding defendant, Dr. Robert A. Ryan, not guilty of medical
malpractice pertaining to Constance Ruperd's (Connie's) foot
surgery. On appeal, the plaintiffs contend that the trial court
erred in not granting their motion for a directed verdict at the
close of the plaintiffs' evidence. In the alternative, the
plaintiffs argue that they are entitled to a new trial because (1)
the court erroneously admitted certain evidence; and (2) the court
administered erroneous jury instructions that prejudiced the
plaintiffs. We affirm.
Nonpublishable material under Supreme Court Rule 23 omitted.
Dr. Ryan testified that he first met Connie in 1988. Dr. Ryan
stated that at that time he excised warts on Connie's face and her
elbow. Dr. Ryan admitted, however, that the 1988 reports and
charts indicated that "moles," not warts, were excised at that
time. Dr. Ryan stated that Connie returned to his office on
January 18, 1990, requesting information about breast augmentation.
Dr. Ryan said that he scheduled the surgery for January 22, 1990,
and gave Connie a consent form. Dr. Ryan testified that he did not
remember whether he discussed any alternatives to the plantar wart
surgery with Connie, but acknowledged that his records did not
indicate that any alternatives were discussed.
Dr. Ryan stated that on January 22 Connie arrived for the
surgery and signed the consent form after acknowledging that she
had read it. Dr. Ryan summarily described the consent form Connie
signed and admitted that the word "wart" did not appear on the
page, although the form did go into detail regarding the breast
augmentation. Dr. Ryan indicated that "fulgration 'R' plantar
wart" was handwritten at the top of the consent form, and, although
there was no date next to the notation, he believed it was written
on January 18 before Connie was given the consent form.
Dr. Ryan testified that Connie's next office visit took place
on February 1, 1990. Dr. Ryan stated that his report indicated
that the plantar aspect of Connie's right foot was sore but healing
well and that Connie should return in one month.
According to Dr. Ryan's records, Connie returned on February
23 and saw Dr. Kontrick. The records report that the "wounds on
ball of feet is [sic] clean, healing is slow. Patient was given an
estimate for return to work on the 19th of next month."
Dr. Ryan testified that Connie's next office visit was on
March 26, 1990. He stated that on March 26 Connie's foot was
"swollen red and shiny" and that her toe was healing very well.
Dr. Ryan said that he diagnosed reflex sympathetic dystrophy (RSD)
of her foot at that time and explained the condition to her. Dr.
Ryan testified that RSD is a difficult syndrome to understand and
that basically it is a syndrome that "no one can explain" but that
in most cases, given some time, it would resolve itself. Dr. Ryan
"fitted" Connie for a Jobst stocking and told her to return in two
weeks.
Dr. Ryan testified that he saw Connie next on March 29, 1990,
at which time he performed an ankle block on Connie's foot. Dr.
Ryan said that to "the best of his knowledge" he dictated a record
of the ankle block, but acknowledged that no record existed
regarding that visit or the block. Dr. Ryan said also that Connie
visited his partner, Dr. Kontrick, on March 30, 1990, but that the
records did not indicate that visit took place either.
Dr. Ryan stated that the last time he saw Connie was when
Connie was at Victory Memorial Hospital. Dr. Ryan denied telling
Connie that she should go to the Lake Forest Pain Clinic instead of
going to another hospital in Milwaukee.
Dr. Ryan also testified regarding the plaintiffs' allegations
that he intentionally engaged in certain conduct with the attempt
to obstruct justice. Before trial, the plaintiffs moved for
judgment on the grounds that Dr. Ryan obstructed justice by
altering Connie's medical records, soliciting Dr. Herman to alter
Connie's records, exerting peer pressure upon the plaintiffs'
expert, and attempting to obtain Connie's psychological records.
At trial, Dr. Ryan offered the following explanations for his
conduct.
First, Dr. Ryan explained why he had two different clinical
data sheets regarding Connie's condition. Dr. Ryan stated that a
report was transcribed from his dictation tape around March 26,
1990. Dr. Ryan said that when he later reviewed the report he
noticed that it was partially inaccurate. Accordingly, he
redictated Connie's January 18, January 22, February 1, February
23, March 5, and March 26 entries. Dr. Ryan acknowledged that one
of the reasons he redictated the entries was because he thought
Connie was angry with him and that she might file a lawsuit against
him. Dr. Ryan stated that the last time he made any changes or
corrections on the clinical data sheets was January 10, 1992.
Dr. Ryan also explained the changes he made on Connie's
clinical data sheet. Regarding Connie's office record for her
January 18 visit, Dr. Ryan said that he wrote, "Cheryl, give her
the entire packet," and "redone and not the original but sent
anyway" on Connie's records. Dr. Ryan said that the packet
referred to a folder that was given to patients having surgery and
concerned the issue of informed consent. He then acknowledged that
Cheryl was not working for him in 1990 and that it would have been
"Pam" who would have given Connie the folder.
Dr. Ryan stated also that he added an entry to the January 18
office visit. Dr. Ryan said that he added the notation, "plan to
do the plantar warts at the same time the augmentation is done.
Complications of painful scars, recurrence, et cetera, were
discussed." Dr. Ryan admitted that the notation referred to the
issue of informed consent.
Dr. Ryan then testified that he added the words "severe pain"
and "[the foot] is slightly warm" to the March 26 entry, as well as
noting, "I'm sure the patient is developing reflex sympathetic
dystrophy, i.e. causalgia of the foot." Finally, Dr. Ryan stated
that he added, "I have referred [Connie] to Dr. Haq for possible
sympathetic block," which was not included on Connie's original
clinical data sheet.
Second, Dr. Ryan explained his reasons for asking other
doctors to telephone Dr. Donald Bolt, the plaintiffs' expert in the
case. Dr. Ryan testified that he telephoned Dr. Ellenby prior to
the discovery deposition of Dr. Bolt. Dr. Ryan reported that in
his conversation with Dr. Ellenby he asked Dr. Ellenby to telephone
Dr. Bolt and ask Dr. Bolt "if he had seen all of the records in
this case or if he had seen the patient in this case." Dr. Ryan
said that he also called Dr. Daniel Mann, a plastic surgeon in
Florida, before Dr. Bolt's deposition and asked him to call Dr.
Bolt and ask whether he had seen the records or examined the
patient in the case. Dr. Ryan stated that he did not speak with
Dr. Ellenby or Dr. Mann again before Dr. Bolt's deposition.
Dr. Ryan next testified that he wrote a letter to Dr. Timothy
Lynch, a psychologist, on March 6, 1992, asking for a "summary" of
his findings concerning Connie. Dr. Ryan said that he never spoke
to or received anything from Dr. Lynch. Dr. Ryan said that he then
wrote a letter to Dr. Abderholden asking him to write to Dr. Lynch
to request a summary. Dr. Ryan stated that he did not believe that
Dr. Abderholden ever wrote the letter. Dr. Ryan acknowledged that
at the time he wrote the letters he was already a defendant in the
lawsuit.
Nonpublishable material under supreme Court Rule 23 omitted.
I.
We turn first to the plaintiffs' argument that the trial court
erred in failing to direct a verdict for the plaintiffs on the
issue of informed consent. A trial court's denial of a plaintiff's
motion for directed verdict should be upheld unless the evidence,
when viewed in the light most favorable to the defendant, so
overwhelmingly favors the plaintiff that no contrary verdict can
stand. Walter v. Carriage House Hotels, Ltd., 164 Ill. 2d 80, 86
(1995). Indeed, even if a jury returns a verdict for the defendant
after the trial court denies a plaintiff's motion for a directed
verdict at the close of all the evidence, an appellate court may
reverse the trial court and remand for a new trial on damages only,
if the record reveals no reasonable basis for a verdict for the
defendant. Calvetti v. Seipp, 37 Ill. 2d 596, 599 (1967).
Nonpublishable material under Supreme Court Rule 23 omitted.
The plaintiffs contend also that a directed verdict should
have been granted in their favor at the close of all the evidence
because the defendant's conduct before and during the trial
amounted to an obstruction of justice. Specifically, the
plaintiffs refer to Dr. Ryan's soliciting other physicians to call
Dr. Bolt to question him about what he was going to say in his
deposition, Dr. Ryan's having Dr. Herman alter Connie's hospital
records, Dr. Ryan's contacting Dr. Lynch in an attempt to obtain
Connie's psychological records, Dr. Ryan's altering his own office
records concerning Connie's treatment, and Dr. Ryan's destroying
records of the ankle block procedure, as conduct that constituted
obstructing justice.
Like the trial court, we find Dr. Ryan's behavior in this case
egregious and appalling. However, we find that Dr. Ryan's conduct
does not rise to that which results in a default judgment for the
plaintiffs. See Sander v. Dow Chemical Co., 166 Ill. 2d 48, 67-68
(1995) (sanctions that result in a default judgment are drastic
sanctions and should only be employed when it appears that all
other enforcement efforts of the court have failed to advance the
litigation). Instead, we agree with the defendant that the
sanctions the trial court imposed adequately remedied the problem.
A trial court has broad discretion in determining whether the
facts of a given case merit the imposition of sanctions. Sander,
166 Ill. 2d at 67. Indeed, a court's decision to impose sanctions
is entitled to considerable deference on review and will not be
reversed absent an abuse of discretion. Spiegel v. Hollywood
Towers Condominium Ass'n, 283 Ill. App. 3d 992, 1001 (1996).
Prior to trial, the plaintiffs filed a motion for default
judgment and sanctions, alleging that the accumulated misconduct of
Dr. Ryan amounted to an obstruction of justice. The trial court
held three hearings concerning the plaintiffs' motion and
thereafter entered an order that imposed various sanctions on Dr.
Ryan, including paying attorney fees and costs the plaintiffs had
incurred in connection with the proof of the discovery violations.
The trial court's order provided also that the plaintiffs could
admit into evidence the various versions of Dr. Ryan's office
records. Further, the order stated that the jury would be
instructed relative to Dr. Ryan's improperly communicating with
the other physicians and obtaining the falsification of records.
The order explained that the jury would be allowed to draw
inferences of guilt if it found that the defendant solicited the
alteration of the records and consider any improper communications
negatively against the defense. Finally, we note that, prior to
the hearings and order, the trial court prohibited the defendant
from continuing a deposition of Dr. Lynch.
We find that the trial court's instituting these sanctions and
other measures instead of granting the plaintiffs' motion for a
default judgment does not amount to an abuse of discretion.
Instead, a review of the record concerning each of the plaintiffs'
allegations shows that the trial court imposed sanctions on Dr.
Ryan's conduct where there was sufficient evidence that his conduct
was improper and then allowed the plaintiffs "wide latitude" at
trial to adduce evidence of the other alleged acts of misconduct.
As the purpose behind imposing discovery sanctions is to ensure
that full discovery occurs, we cannot say that the trial court's
decision to allow the trial to proceed was erroneous. See Hartnett
v. Stack, 241 Ill. App. 3d 157, 172-73 (1993).
The plaintiffs contend that, even if it was inappropriate for
the trial court to grant the motion for judgment prior to trial,
the motion should have been granted after the trial because at that
time the evidence before the court "was sufficient" to show that
the defendant's accumulated conduct amounted to an obstruction of
justice that warranted a judgment in their favor. We disagree. As
the plaintiffs contend that their motion for judgment was based on
Dr. Ryan's accumulated misconduct, we will discuss briefly each of
the plaintiffs' allegations below.
First, the plaintiffs contend that the evidence shows that Dr.
Ryan solicited peer pressure on Dr. Bolt by calling other doctors
and having them talk to Dr. Bolt in an attempt to affect his
testimony. Before trial, at one of the hearings concerning the
plaintiffs' motion for judgment, Dr. Ryan explained his reasons for
contacting Dr. Mann and Dr. Ellenby. Dr. Ryan stated that his
intent was merely to have Dr. Mann and Dr. Ellenby call Dr. Bolt
and ask him whether his testimony would be based on an examination
of Connie, not to convince Dr. Bolt not to testify on behalf of the
plaintiffs. At the close of all the hearings, the trial court
determined that there was insufficient evidence to find that Dr.
Ryan attempted to intimidate Dr. Bolt.
Contrary to the plaintiffs' belief, no new evidence concerning
this matter was presented at trial. At trial, Dr. Ryan repeated
his version of events. Further, Drs. Mann and Ellenby testified in
evidence depositions that they did not attempt to persuade Dr. Bolt
not to testify or to testify in a certain manner. Indeed, although
the plaintiffs argue that Dr. Bolt testified at trial that, in his
conversations with Dr. Mann and Dr. Ellenby, Dr. Mann told him that
Connie was a "wacko" and Dr. Ellenby said that Connie was
"bizarre," we note that Dr. Bolt testified also that he was not
intimidated by the phone calls and that his conversations did not
alter his testimony, opinions, or view of the facts.
Accordingly, we find that the evidence adduced at trial does
not establish, as a matter of law, that Dr. Ryan engaged in any
attempt to intimidate Dr. Bolt. Instead, Dr. Bolt's testimony
raises a question of fact for the jury to decide concerning whether
Dr. Ryan solicited Dr. Ellenby and Dr. Mann to exert peer pressure
on Dr. Bolt. As a result, the jury was properly given an
instruction which stated that it could determine whether Dr. Ryan
attempted to intimidate Dr. Bolt and consider any improper conduct
as evidence of Dr. Ryan's negligence in treating Connie.
Second, the plaintiffs contend that Dr. Ryan solicited Dr.
Herman, an associate of Connie's family practitioner, to alter
Connie's Victory Memorial Hospital (VMH) medical records. At the
hearings for the plaintiffs' motion for judgment before trial, Dr.
Ryan admitted that he had a conversation with Dr. Herman concerning
Connie approximately two years after he referred her to Dr. Herman.
Dr. Ryan stated that he had stopped getting referrals from Dr.
Herman and asked Dr. Herman if it had any connection to Connie's
case. Dr. Ryan said that he then explained Connie's treatment to
Dr. Herman. Dr. Ryan stated that Connie's record "never even came
up" and that he "had no reason to want the record changed." After
the hearings were completed, the court held that the evidence was
insufficient to find, as a matter of law, that Dr. Ryan attempted
to solicit falsification of Connie's VMH records.
At trial, Dr. Ryan testified that he could not remember when
he spoke with Dr. Herman. Dr. Ryan also denied again asking Dr.
Herman to change Connie's record. He stated that he only explained
to Dr. Herman how he treated Connie. Dr. Herman, however,
testified that at some point he talked with Dr. Ryan and Dr. Ryan
told him that the information in Connie's history in Dr. Herman's
record was incorrect. Dr. Herman stated that he then made several
changes in Connie's history contained in the record, changes that
he believed were the result of Dr. Ryan's conversations with Connie
that would make his records more accurate. As he did in his
deposition, Dr. Herman stated that he could not remember whether he
made the changes on his own initiative after learning that the
information contained in Connie's history was incorrect or whether
Dr. Ryan told him to make the changes. Dr. Herman acknowledged,
however, that in an affidavit taken earlier he stated that Dr. Ryan
told him to make the changes.
As was true with the allegations of Dr. Ryan's exerting peer
pressure upon Dr. Bolt, we find that the plaintiffs' contention
that Dr. Ryan solicited Dr. Herman to falsify Connie's records was
a fact question for the jury to determine. Indeed, we note that
the jury was instructed to consider any evidence of falsification
of records as evidence of Dr. Ryan's negligence. Further, as the
defendant argues in his brief, the issue concerning this allegation
is whether Dr. Ryan sought to falsify Connie's record, not whether
he advised Dr. Herman that his medical report contained incorrect
information that should be revised. The record contains evidence
that Dr. Ryan was attempting to falsify records, as well as
evidence that Dr. Herman acted upon his own initiative to correct
information he believed was inaccurate. Accordingly, we agree with
the trial court that the evidence does not establish, as a matter
of law, that Dr. Ryan attempted to have Dr. Herman falsify Connie's
records.
Third, the plaintiffs argue that Dr. Ryan's contacting Dr.
Lynch regarding Connie's psychological records violated the
Petrillo doctrine, which should result in judgment for plaintiffs.
See Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581
(1986). Under the Petrillo doctrine, conferences between the
plaintiff's treating physician and the defense attorney are
prohibited because they violate the physician/patient privilege.
Petrillo, 148 Ill. App. 3d at 593.
After the hearings, the trial court agreed with the plaintiffs
that Dr. Ryan's attempting to discover Dr. Lynch's findings
concerning Connie violated the rule announced in Petrillo.
Accordingly, the court barred the defense from completing the
discovery deposition of Dr. Lynch and sanctioned Dr. Ryan. At
trial, the court conducted a voir dire of Dr. Lynch outside of the
presence of the jury. After Dr. Lynch's testimony, the court noted
its belief that Dr. Lynch and Dr. Ryan may have had a substantive
conversation concerning Connie's condition in violation of the
Petrillo doctrine. The court then barred Dr. Lynch from testifying
and barred the use of Dr. Lynch's records. The court also
instructed the jury that it could consider any improper
solicitation of medical records from any treating physician as
evidence of negligence.
We find that the trial court's sanctions and orders barring
Dr. Lynch from testifying and Dr. Lynch's records from being
admitted were not an abuse of discretion. The plaintiffs argue
that Dr. Ryan's conduct was so abhorrent that it warranted that a
judgment be entered for the plaintiffs. We reiterate, however,
that a judgment for the plaintiffs is a drastic sanction. See
Sander, 166 Ill. 2d at 67-68. Therefore, the trial court's
decision to proceed with the trial and not to grant the plaintiffs'
directed verdict on the ground that Dr. Ryan violated the Petrillo
doctrine was not an abuse of discretion.
Fourth, the plaintiffs contend that Dr. Ryan's altering his
own office records mandated that a judgment be entered for the
plaintiffs. The trial court reached the same conclusion concerning
Dr. Ryan's alterations as it did regarding Dr. Herman's alterations
of Connie's records. Before trial, the court stated that the
evidence did not establish, as a matter of law, that Dr. Ryan
falsified records. Accordingly, the trial court ordered that both
sets of Dr. Ryan's office records could be admitted and that, after
hearing all the evidence, the jury could decide whether any
falsification occurred. As we previously discussed, we find that
such a procedure was not erroneous.
Finally, the plaintiffs "suggest" that Dr. Ryan deliberately
destroyed the medical record of Connie's ankle block, which clearly
amounts to an obstruction of justice. Like the trial court, we
find that there is insufficient evidence in the record to show that
Dr. Ryan destroyed the record of the ankle block. On the contrary,
although the plaintiffs, the defendant, and all the doctors agree
that an ankle block took place, there is no evidence that a record
of the ankle block ever existed. Further, unlike the situation
with the altered office records, Connie never received any record
of the ankle block. We decline to adopt the plaintiffs' reasoning
that the absence of this record, in combination with the altered
records, is enough circumstantial evidence that Dr. Ryan
deliberately destroyed the record. Instead, we find that the more
reasonable explanation of the missing record is that it never
existed.
In any event, we find that the trial court did not err by
finding that, as a matter of law, Dr. Ryan did not solicit peer
pressure on Dr. Bolt, solicit Dr. Herman to falsify his records,
falsify his own office records, and destroy the record of the ankle
block. Further, we find that the court's order requiring Dr. Ryan
to pay some of the plaintiffs' attorney fees, barring Dr. Lynch
from testifying, and barring Dr. Lynch's records from being
admitted were appropriate sanctions for Dr. Ryan's violating the
Petrillo doctrine.
Certainly, although there are many instances of alleged
misconduct in this case and Dr. Ryan did engage in questionable
behavior, a default judgment or directed verdict was not proper
under these circumstances. The cases the plaintiffs cite to where
a default judgment was granted due to a party's misconduct are
distinguishable from this case. In Adcock v. Brakegate, Ltd., 247
Ill. App. 3d 824 (1993), aff'd, 164 Ill. 2d 54 (1994), the court
entered judgment on liability against the defendants after the
defendants refused to produce two witnesses for depositions, and,
in Clymore v. Hayden, 278 Ill. App. 3d 862 (1996), a medical
malpractice action was dismissed after the plaintiff refused to
appear for a deposition. No such allegations were made here.
Instead, the plaintiffs had access to every witness they requested
to depose.
Further, in Farley Metals, Inc. v. Barber Colman Co., 269 Ill.
App. 3d 104 (1994), the trial court dismissed a case after a
lawyer's negligence led to the destruction of evidence. Again,
although the plaintiffs allege in their brief that Dr. Ryan must
have destroyed the record of the ankle block procedure, there is no
proof that the record ever existed.
Finally, we add that, aside from Dr. Ryan's conversations with
Dr. Lynch, the plaintiffs' allegations of misconduct on the part of
Dr. Ryan raised factual questions for the jury to determine. On
each of the remaining allegations, it was disputed as to whether
Dr. Ryan acted with the intent to falsify information or to
intimidate witnesses. Therefore, as we find the record reveals a
reasonable basis for the jury to have determined that Dr. Ryan did
not intend to intimidate Dr. Bolt or falsify records, a directed
verdict was not proper. See Calvetti, 37 Ill. 2d at 599.
II.
The material in this section is not to be published pursuant
to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
III.
The first portion of the material in this section is not to be
published pursuant to Supreme Court Rule 23.
The next four instances of alleged error concern the
instructions the court gave concerning Dr. Ryan's improper
communication with Dr. Lynch, Dr. Ryan's altering his records, Dr.
Ryan's soliciting peer pressure on Dr. Bolt, and Dr. Ryan's
soliciting Dr. Herman to alter Connie's hospital records. The
court tendered instructions regarding this alleged misconduct that
stated that, if the jury found that Dr. Ryan performed those acts,
it could consider that misconduct in deciding whether Dr. Ryan was
negligent in his care and treatment of Connie. The plaintiffs
argue, however, that for each instance of alleged misconduct the
jury should have been instructed that, if it found that Dr. Ryan
performed that behavior, the jury could consider that misconduct as
"an admission of guilt on the part of Dr. Ryan."
In support of their argument, the plaintiffs point this court
to several cases which state that any attempt by a party to
obstruct justice constitutes an admission. See Kearney v.
Brakegate, Ltd., 263 Ill. App. 3d 355 (1994). In Kearney, the
court discussed the principle that a jury is entitled to consider
the destruction, suppression, or fabrication of evidence as an
admission. Kearney, 263 Ill. App. 3d at 360. The issue before the
Kearney court, however, did not involve jury instructions.
Instead, the court discussed whether the trial court erred in
refusing to allow the plaintiff to call a witness who would testify
that the defendant refused to produce him as a witness even after
ordered to do so by the court. Kearney, 263 Ill. App. 3d at 360-
62. Accordingly, Kearney does not stand for the principle that the
words "admission of guilt" should be included in jury instructions.
In fact, the defendant includes in his brief several sources
that demonstrate that the Illinois courts should not include
admissions instructions. For example, Illinois Pattern Jury
Instructions, Civil, No. 4.01 (3d ed. 1995) (hereinafter IPI Civil
3d) states that "[t]he committee recommends that no 'admissions'
instruction be given." IPI Civil 3d No. 4.01. Further, in the
comment to IPI Civil 3d No. 4.02, written by the Illinois Supreme
Court Committee on Jury Instructions, the committee recommends that
no instruction be given on "flight from accident as evidence of
negligence" because an admission instruction would "unduly single
out particular evidence." IPI Civil 3d No. 4.02, Committee Note,
at 29.
Moreover, Illinois courts have expressed concern over using
the word "guilt" in special interrogatories submitted to the jury.
In Erickson v. Aetna Life & Casualty Co., 127 Ill. App. 3d 753
(1984), the court upheld a trial court's decision not to include a
special interrogatory that contained the phrase "guilty of actual
malice." The court explained that the use of the term "guilty"
could create unnecessary ambiguity for the jury because the word is
most often used in a criminal law setting. Erickson, 127 Ill. App.
3d at 766; see also Bernardi v. Chicago Steel Container Corp., 187
Ill. App. 3d 1010, 1021 (1989) (court held that the trial court
should have stricken the word "guilty" from a special interrogatory
because it was misleading).
We find that the trial court correctly declined to use the
plaintiffs' phrase "admission of guilt" in the jury instructions.
Illinois law is clear that admissions should be avoided in
instructions if possible. Further, we are persuaded by the
reasoning in Erickson and Bernardi that the word "guilty" included
in jury instructions could confuse the jury.
It is undisputed that, when deciding whether a particular jury
instruction is misleading, the court should view the instruction in
context with all the given instructions. Netto v. Goldenberg, 266
Ill. App. 3d 174, 184 (1994). In this case, we find that the jury
instructions concerning Dr. Ryan's misconduct were not misleading.
The issue in the case was whether Dr. Ryan negligently treated
Connie. The instructions stated that if the jury determined that
Dr. Ryan engaged in specific misconduct, the jury could consider
that misconduct when deciding whether Dr. Ryan negligently treated
Connie. Consequently, the instructions given relate directly to
the issue of Dr. Ryan's alleged negligence. The jury is left to
decide how much weight Dr. Ryan's misconduct--assuming the jury
determined there was any misconduct--has concerning the issue of
whether he was negligent. We find that such instructions
accurately state the law in Illinois.
The plaintiffs' last instance of alleged error in the jury
instructions concerns the instruction defining informed consent.
The instruction submitted to the jury stated:
"When I use the expression 'informed consent' in this
case, I mean a consent obtained by a plastic surgeon after the
disclosure by the plastic surgeon of those factors which a
reasonably well-qualified plastic surgeon would disclose under
the same or similar circumstances."
See Illinois Pattern Jury Instructions, Civil, No. 105.07.01 (3d
ed. 1990) (hereinafter IPI Civil 3d No. 105.07.01). The plaintiffs
contend that this instruction did not accurately state the law in
Illinois at the time of trial.
Illinois Pattern Jury Instructions (IPI) should be used
exclusively where they correctly and accurately charge the jury.
Netto, 266 Ill. App. 3d at 183. IPI instructions, however, should
be modified if they do not accurately state the law. See Ruffiner
v. Material Service Corp., 116 Ill. 2d 53, 62 (1987).
In this case, the plaintiffs tendered a jury instruction that
replaced the word "factors" in IPI Civil 3d No. 105.07.01 with the
phrase "risks and reasonable alternatives." Accordingly, the
instruction would have indicated that, to obtain informed consent
from a patient, a plastic surgeon had to notify the patient of
those risks and reasonable alternatives which a reasonably well-
qualified plastic surgeon would disclose under the same or similar
circumstances. The plaintiffs argue that this difference is
substantial because Illinois law is clear that a physician must
inform a patient of the reasonable risks and alternatives of a
surgery and the word "factors" does not accurately indicate that
responsibility to the jury.
The defendant argues that the court did not abuse its
discretion in refusing to submit the plaintiffs' instruction
because at the time the trial occurred IPI Civil 3d No. 105.07.01
did not contain the phrase "risk and reasonable alternatives."
Further, the defendant argues that the word "factors" is broader
than the phrase "risks and reasonable alternatives" so the jury was
not prohibited from determining that a failure to inform a patient
of alternatives constituted a lack of informed consent. Finally,
the defendant states that the plaintiffs were able to introduce all
their evidence of risks and reasonable alternatives to the surgery.
Therefore, even if the court abused its discretion in admitting the
instruction, the plaintiffs were not prejudiced.
We have already discussed that Illinois law requires a
physician to inform a patient of the risks and reasonable
alternatives to surgery. Indeed, we note that the December 1995
edition of the IPI instructions includes the words "risks" and
"alternatives" in No. 105.07.01 instead of the word "factors."
Illinois Pattern Jury Instructions, Civil, No. 105.07.01 (3d ed.
1995). Accordingly, the only question remaining is whether the use
of the word "factors" in this case adequately informed the jury
that Dr. Ryan's failing to inform Connie of the risks and
reasonable alternatives to her wart surgery indicated that he did
not receive her informed consent of the procedure. We hold that
the plaintiffs were not prejudiced by having "factors" in the jury
instruction instead of "risks and reasonable alternatives."
First, we note that the plaintiffs were able to introduce all
their evidence that Dr. Ryan failed to inform Connie of the risks
and reasonable alternatives of the surgery. Further, in the
closing argument, plaintiffs' counsel explained to the jury that
Dr. Ryan failed to disclose to Connie that an alternative procedure
was available. Plaintiffs' counsel even stated that "all the
expert witnesses have agreed[] that an element, an essential
element of informed consent[,] is alternative procedures known.
Everybody agreed." In rebuttal, the plaintiffs' counsel reiterated
that, although he had a duty to do so, Dr. Ryan never told Connie
about any alternative treatments. Consequently, the plaintiffs'
claim that the jury was unaware of the law is inaccurate.
Second, we note that while the phrase "risks and reasonable
alternatives" may be more precise than the word "factors," factors,
by its own definition, includes risks and reasonable alternatives.
According to Webster's Dictionary, factors means "something (as an
element, circumstance, or influence) that contributes to the
production of a result." Webster's Third New International
Dictionary 813 (1986). As a result, knowing the risks and
reasonable alternatives of a surgery is one element or "factor"
necessary in giving an informed consent. Therefore, while the IPI
as currently written may be more explicit in defining what
"factors" indicates by substituting the phrase "risks and
reasonable alternatives," we cannot say that the use of the word
"factors" in the jury instruction misled this jury.
Instead, the jury had all the evidence regarding the informed
consent issue before it and could have determined that, although
Dr. Ryan did not inform Connie of any alternative procedures, there
were no reasonable alternatives of which to inform her.
Accordingly, we find that any error the trial court made in
refusing to substitute the phrase "risks and reasonable
alternatives" for "factors" in the jury instruction did not
prejudice the plaintiffs so that a new trial is warranted. See
Thompson v. MCA Distributing, Music Corp., 257 Ill. App. 3d 988,
991 (1994).
Nonpublishable material under Supreme Court Rule 23 omitted.
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed.
Affirmed.
DOYLE and THOMAS, JJ., concur.
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