Dahan v. UHS of Bethesda, Inc.

3/24/98
2nd Division

No. 1-96-0462

EDGARDO Q. DAHAN and RUBY DAHAN, ) APPEAL FROM
) THE CIRCUIT COURT
Plaintiffs-Appellees, ) COOK COUNTY.
)
) No. 90 L 411
)
v. )
)
UHS OF BETHESDA, INC., ) THE HONORABLE
d/b/a MOUNT SINAI HOSPITAL-NORTH; ) JAMES J. HEYDA
MOUNT SINAI MEDICAL CENTER; ) JUDGE PRESIDING.
and CHARLES SCHIKMAN. )
)
Defendants-Appellants. )

JUSTICE COUSINS delivered the opinion of the court:
Plaintiffs Edgardo Q. Dahan and Ruby Dahan brought this
action for medical malpractice alleging that Dr. Charles Schikman
was negligent when rendering treatment to Edgardo. The Dahans
also sued Mount Sinai Hospital-North (Mount Sinai), the hospital
in which Dr. Schikman operated a diabetes clinic, UHS of
Bethesda, Inc. (UHS), and Mount Sinai Medical Center. After a
trial, the jury returned a verdict for the Dahans and against the
defendants in the amount of $11,962,390. The trial court granted
a directed verdict in favor of Mount Sinai Medical Center and,
thereafter, reduced the itemized damages awarded to Ruby Dahan
for loss of Edgardo's services from $500,000 to $200,000, thereby
reducing the judgment to $11,662,390.
On appeal, defendants UHS and Mount Sinai contend that: (1)
Dr. Schikman was not an agent of the hospital and the jury
instructions on agency were insufficient; (2) the jury
instructions on proximate cause were erroneous and prejudicial;
(3) the trial court erroneously permitted improper testimony by
an expert witness; and (4) the damages award was excessive.
Defendant Dr. Schikman argues that: (1) the jury instructions on
proximate cause were erroneous; (2) the trial court improperly
allowed expert testimony that was cumulative to other expert
testimony; and (3) the damages award was excessive. Plaintiffs
cross-appeal and argue that the trial court abused its discretion
in exercising remittitur and reducing the jury's award.
BACKGROUND
Mount Sinai was operated as a joint venture of UHS and Mount
Sinai Medical Center. Mount Sinai granted staff privileges to
more than a dozen physicians, but only three, including Dr.
Charles Schikman, had the use of offices at the hospital. Dr.
Schikman served as the director of the hospital s diabetes
clinic, which was located on the fifth floor of the hospital.
Plaintiff Edgardo Dahan was an employee of Mount Sinai,
serving as the head of the supply department. In May 1988,
Edgardo saw Dr. Paul Parmet, an opthamologist on staff at Mount
Sinai, because of vision problems possibly associated with
migraine headaches he had been having. Dr. Parmet referred
Edgardo to Dr. Schikman.
On May 18, 1988, Dr. Schikman saw Edgardo in his office at
Mount Sinai. After taking his medical history and examining him,
Dr. Schikman prescribed medication for Edgardo's migraines and
ordered an EEG and cervical spine Xray. A follow-up visit was
scheduled for one week later. On May 25, 1988, Edgardo returned
and told Dr. Schikman that his migraines were better but that his
blurred vision had become worse. Dr. Schikman ordered a carotid
ultrasound examination to monitor blood flow through the carotid
arteries to the brain. He then instructed Edgardo to return for
a follow-up visit in two weeks.
On June 2, 1988, Edgardo had a stroke. Thereafter he was
diagnosed with polycythemia rubra vera, which is an increased
amount of red blood cells. In his complaint, plaintiffs alleged
that Dr. Schikman failed to diagnose polycythemia rubra vera and
was negligent in failing to perform a CBC, which is a blood test
that is used to diagnose polycythemia rubra vera. Plaintiffs
argued that, had a CBC been obtained, the condition of
polycythemia rubra vera would have been diagnosed, treatment
would have been instituted and Edgardo would not have suffered a
stroke.
Since the stroke, Edgardo's father has moved into Edgardo's
home to take care of him. As a result of the stroke, Edgardo
has, inter alia, difficulty speaking, lacks full use of one of
his arms and communicates by gesturing, writing and by using a
communication device. He uses a cane and a motorized scooter-
type vehicle.
The jury returned a verdict in favor of the plaintiffs and
answered special interrogatories finding that Dr. Schikman was
both an actual and apparent agent of the hospital and not an
independent contractor. The jury awarded plaintiffs $5,500,000
for disability and disfigurement, $2 million for past and future
pain and suffering, $2,062,390 for future medical and caretaking
expenses and $900,000 for lost earnings. The jury also awarded
Ruby Dahan $500,000 for loss of Edgardo's services and $1 million
for loss of his society, companionship and sexual relationship.
Thereafter, the trial court reduced the jury's award for loss of
services by $300,000. Mount Sinai, UHS and Dr. Schikman appeal
from the jury verdict and the trial court's denial of their
posttrial motions.
We affirm in part, reverse in part and vacate in part.
ANALYSIS
I
UHS and Mount Sinai first contend that the trial court erred
in denying their request for judgment notwithstanding the verdict
because Dr. Schikman was not an actual or apparent agent of Mount
Sinai. They argue that the contract between Dr. Schikman and
Mount Sinai and the common-law test for agency established that
Dr. Schikman worked for the hospital as an independent contractor
and not an actual agent. UHS and Mount Sinai further argue that
Dr. Schikman was not an apparent agent of Mount Sinai. Plaintiffs
contend that the facts do not overwhelmingly favor the
defendants' assertions and that the jury's general verdict and
specific findings should be allowed to stand. We agree with
plaintiffs' contention.
The standard of review for denial of a motion for judgment
notwithstanding the verdict is well established. A judgment
notwithstanding the verdict can only be granted where all the
evidence, when viewed in its aspect most favorable to the
opponent, so overwhelmingly favors the movant that no contrary
verdict based on that evidence could stand. Pedrick v. Peoria &
Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967);
Schumacher v. Continental Air Transport Co., 204 Ill. App. 3d
432, 444, 562 N.E.2d 300 (1990). A hospital may be vicariously
liable based upon a principal-agent relationship between the
hospital and the physician. Gilbert v. Sycamore Municipal
Hospital, 156 Ill. 2d 511, 518, 622 N.E.2d 788 (1993).
Generally, one who engages the services of an independent
contractor is not liable for the acts or omissions of that
contractor. Letsos v. Century 21-New West Realty, 285 Ill. App.
3d 1056, 1065, 675 N.E.2d 217 (1996). Whether the parties'
relationship is that of principal and agent, or owner and
independent contractor, is a question of fact unless the
relationship is so clear that it is indisputable. Letsos, 285
Ill. App. 3d at 1065. However, specific conduct can
inferentially demonstrate the existence of a principal-agency
relationship, despite evidence that the parties intended an
independent contractor relationship. Letsos, 285 Ill. App. 3d at
1065.
Prior to the Illinois Supreme Court s decision in Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), Illinois
courts held that a hospital could only be vicariously liable
through an agency relationship if the physician was an actual
agent of the hospital. See Johnson v. Sumner, 160 Ill. App. 3d
173, 175, 513 N.E.2d 149 (1987); Greene v. Rogers, 147 Ill. App.
3d 1009, 1015-16, 498 N.E.2d 867 (1986). In Johnson v. Sumner,
160 Ill. App. 3d 173, and Greene v. Rogers, 147 Ill. App. 3d
1009, cases cited by UHS and Mount Sinai, Illinois appellate
courts held that control retained by the principal and method of
payment are the two dominant factors in determining whether a
physician is an agent or independent contractor. However, in
Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993),
the supreme court criticized the decisions in Greene and Johnson.
The Gilbert court did not overrule Greene and Johnson, but it did
note that these cases overlooked the "realities of modern
hospital care." 156 Ill. 2d at 520. The overlooked realities
include the current business and marketing practices of modern
hospitals. Gilbert, 156 Ill. 2d at 520. The supreme court
quoted the Wisconsin Supreme Court in Kashishian v. Port, 167
Wis. 2d 24, 481 N.W.2d 277 (1992), which observed that hospitals
spent billions of dollars to persuade those in need of medical
services to obtain those services at a specific hospital.
Gilbert, 156 Ill. 2d at 520. The court concluded that, in light
of the realities of modern hospital care, "liability attaches to
the hospital only where the treating physician is the apparent or
ostensible agent of the hospital. If a patient knows, or should
have known, that the treating physician is an independent
contractor, then the hospital will not be liable." Gilbert, 156 Ill. 2d at 522. In a separate discussion on apparent authority,
the Gilbert court extended the same principle of "patient
knowledge" to the doctrine of apparent authority and set forth
the elements of a cause of action under a theory of apparent
authority as follows:
"For a hospital to be liable under the doctrine of
apparent authority, a plaintiff must show that: (1) the
hospital or its agent, acted in a manner that would lead a
reasonable person to conclude that the individual who was
alleged to be negligent was an employee or agent of the
hospital; (2) where the acts of the agent create the
appearance of authority, the plaintiff must also prove that
the hospital had knowledge of and acquiesced in them; and
(3) the plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and
prudence." Gilbert, 156 Ill. 2d at 525.
Thus, despite the fact that the contract between Mount Sinai
and Dr. Schikman provided that Dr. Schikman was to be an
independent contractor for the hospital, the relevant inquiry
here, under Gilbert, in determining whether Dr. Schikman was an
actual or apparent agent of Mount Sinai is whether Edgardo knew
that Dr. Schikman was an independent contractor. After reviewing
the record in this case, we believe the facts support a finding
that Edgardo did not know that Dr. Schikman was an independent
contractor.
At trial, Dr. Schikman testified that he had a contract with
Mount Sinai to provide service to hospital patients who came to
the diabetes clinic. That contract also required him to see
hospital employees who were injured on the job, free of charge.
Dr. Schikman further testified that he was not allowed to use his
office in the hospital's diabetic clinic to provide service to
his private patients. Edgardo registered at the admitting desk
on the first floor of the hospital before seeing Dr. Schikman on
the fifth floor. Based on these facts, we believe the evidence
established that Mount Sinai and Dr. Schikman acted in a manner
that would lead a reasonable person to conclude that Dr. Schikman
was an agent of Mount Sinai, that the hospital had knowledge of
the appearance of authority of Dr. Schikman and that Edgardo
acted in reliance upon the conduct of Dr. Schikman. UHS and
Mount Sinai argue that the fact that Dr. Parmet referred Edgardo
to Dr. Schikman indicates that Edgardo saw Dr. Schikman
irrespective of his connection with the hospital. However, this
contention is unpersuasive. Rather, we conclude that Dr.
Schikman was acting as an agent of the hospital when he saw
Edgardo pursuant to his contract with the hospital to see
hospital employees, and that Edgardo did not know that Dr.
Schikman was an independent contractor. Therefore, UHS and
Mount Sinai were vicariously liable.
UHS and Mount Sinai further contend that the jury
instructions on agency were insufficient. We disagree. The
trial court has considerable discretion in determining the form
in which a jury instruction shall be given. Hajian v. Holy
Family Hospital, 273 Ill. App. 3d 932, 937, 652 N.E.2d 1132
(1995). The refusal to give an instruction will result in a new
trial only where the party shows serious prejudice to the party's
right to a fair trial. Hajian, 273 Ill. App. 3d at 937.
Furthermore, the propriety of an instruction depends on whether
the instructions, considered as a whole, were sufficiently clear
to avoid misleading the jury, while at the same time fairly and
correctly stated the law. Hajian, 273 Ill. App. 3d at 937.
At trial, UHS and Mount Sinai offered jury instructions
Numbers 5 and 6, which emphasized that the right to control the
way in which work is performed is the predominant factor in
determining the existence of a principal-agent relationship.
Instruction number 5 was a modified version of the standard
Illinois Pattern Jury Instructions, Civil, No. 50.10 (3d ed.
1995) (hereinafter IPI Civil 3d). IPI Civil 3d, No. 50.10
provides the factors by which a jury can determine whether a
principal-agent relationship existed and includes the right to
direct and control the method and manner of work and the method
of payment. Instruction number 5 differed slightly from IPI
Civil 3d No. 50.10 in that it repeated and therefore emphasized
the factor of the right to control. UHS and Mount Sinai argue
that their instructions properly reflected the rules in Gasbarra
v. St. James Hospital, 85 Ill. App. 3d 32, 406 N.E.2d 544 (1979),
Dumas v. Lloyd, 6 Ill. App. 3d 1026, 286 N.E.2d 566 (1972),
Greene v. Rogers, 147 Ill. App. 3d 1009 (1986), and Heubner v.
Galesburg Cottage Hospital, 215 Ill. App. 3d 129, 574 N.E.2d 1194
(1991), that the right to control and method of payment are the
two dominant factors in determining whether a principal-agent
relationship exists. However, these cases are inapposite. The
matter of emphasizing in jury instructions that the right to
control and method of payment are dominant factors in determining
whether a principal-agent relationship exists was not addressed
in any of these cases. In particular, we note that only Gasbarra
was decided by a jury. Neither Greene, Heubner, nor Dumas
involved instructions in any way. Greene and Heubner were summary
judgment cases. Dumas ended with the entry of a directed verdict
in favor of the defendants at the close of the plaintiff's case.
In contradistinction to these three cases cited by defendants,
the case sub judice was tried to completion before a jury.
Further, the instructions tendered to the jury clearly set forth
the various factors that should be considered, including the
right to control and the method of payment. Additionally, the
instructions clearly and accurately stated the law. Therefore,
we cannot say that the trial court erred in its refusal to tender
defendants' instructions.
II
Defendants next contend that the jury instructions on
proximate cause were insufficient because there was no basis in
the record for giving the long form of IPI Civil 3d No. 15.01 and
IPI Civil 3d No. 12.04.
IPI Civil No. 15.01 provides:
"When I use the expression 'proximate cause,' I mean
any cause, which, in natural or probable sequence, produced
the injury complained of. [It need not be the only cause,
nor the last or nearest cause. It is sufficient if it
concurs with some other cause acting at the same time, which
in combination with it, causes the injury.]"
The long form of the instruction includes the bracketed language
which, according to the notes to the instruction, should be
included only when there is evidence that the acts of someone or
something other than the negligence of the parties was also a
proximate cause of the injuries. Ostry v Chateau Ltd.
Partnership, 241 Ill. App. 3d 436, 441, 608 N.E.2d 1351 (1993);
Webb v. Angell, 155 Ill. App. 3d 848, 855, 508 N.E.2d 508
(1987). The decision to give the short form of the instruction
is discretionary, even in cases where there is no evidence that
something or someone other than the parties was a proximate cause
of the injuries. Ostry, 241 Ill. App. 3d at 441. Moreover, the
notes to the instruction provide that it will rarely be error to
give the long form of the instruction.
IPI Civil 3d No. 12.04 was also issued to the jury and
provides:
"More than one person may be to blame for causing an
injury. If you decide that the defendants were negligent
and that their negligence was a proximate cause of injury to
the plaintiffs, it is not a defense that some third person
who is not a party to the suit may also have been to blame."
The notes to IPI Civil 3d No. 12.04 provide that the instruction
should be used only in cases where negligence of a nonparty may
have concurred or contributed to the cause of the plaintiff's
injury. Defendants argue that the trial court erred by granting
plaintiffs' motion in limine to exclude evidence of any other
doctor's treatment or diagnosis of Edgardo's condition and
allowing IPI Civil 3d Nos. 15.01 and 12.04 for which there was no
supporting evidence presented at trial. We find no merit in
defendants' argument.
Our review of the record shows that both instructions were
properly given because evidence of a contributing or concurring
cause of Edgardo's injuries was heard by the jury. The record
indicates that more than one expert witness testified that prior
treating physicians had diagnosed Edgardo with migraines and not
polycythemia rubra vera. Moreover, in closing argument, defense
counsel for Dr. Schikman argued in pertinent part:
"And every physician in this case that saw the
plaintiff that had an opportunity to, prior to the stroke,
had an opportunity to review what was wrong with him, to do
whatever tests they wanted to do and to make a diagnosis
concluded the same that Dr. Schikman did, a migraine.
* * *
And those witnesses, Dr. Upton from Canada; Dr. Wagner
from New York; Dr. Kessler from Washington or Virginia, had
the benefit of seven years to look at a laundry list of
records to conclude in retrospect, must have been P vera
[polycythemia rubra vera].
Yet none of the doctors and -- every doctor diagnosed
migraine before that."
From this evidence, the jury could conclude that the failure of
other doctors to accurately diagnose Edgardo's condition
contributed to his injuries. Therefore, since evidence of other
concurrent or contributing causes of Edgardo's injuries was heard
by the jury, we believe the trial court did not abuse its
discretion in issuing instructions IPI Civil 3d Nos. 15.01 and
12.04.
III
UHS and Mount Sinai also contend that the trial court erred
in permitting improper testimony by Richard Snow, the former
managing director of Mount Sinai. Specifically, they argue that:
(1) the trial court allowed Snow to offer irrelevant testimony
about a separate contract that Dr. Schikman had with the hospital
to administer the Optifast program and about a separate
arrangement he had with Dr. Chow, another physician at Mount
Sinai, who specialized in treating patients who only spoke
Japanese; (2) the trial court allowed Snow to improperly
speculate that patients calling to make appointments at the
diabetes center would not be told that Dr. Schikman was an
independent contractor; (3) that Snow was allowed to testify over
objection that the "independent contractor" provision in Dr.
Schikman's contract with the hospital was included in order to
limit the hospital's liability; and (4) that Snow improperly
testified that, after he had discussed the case with Mount
Sinai's general counsel, he stated, "this certainly won't help
us." We see no merit in these contentions.
It is well settled that evidence is relevant under Illinois
law when it has any tendency to make the existence of any fact
that is of consequence to the determination of the action more or
less probable than it would be without the evidence. Lundquist
v. Nickels, 238 Ill. App. 3d 410, 427, 605 N.E.2d 1373 (1992).
(1993). Furthermore, the trial court's determination with
respect to the admissibility of evidence is a matter within its
sound discretion and will be disturbed on appeal only where the
court has manifestly abused its discretionary powers. Lundquist,
238 Ill. App. 3d at 427.
UHS and Mount Sinai have not persuaded us that the trial
court abused its discretion and erred in permitting certain
testimony by Snow. Relative to Snow's testimony about his
comment to Mount Sinai's general counsel, we point out that the
act of promptly sustaining an objection and instructing the jury
to disregard such argument has generally been viewed as
sufficient to cure any prejudice. Hartman v. Pittsburgh Corning
Corp., 261 Ill. App. 3d 706, 729, 634 N.E.2d 1133 (1994). Here,
the trial court sustained an objection to that testimony and
promptly instructed the jury to disregard the statement.
Therefore, we see no error here. Furthermore, Snow's testimony
about his contract with the hospital to administer Optifast and
his arrangement with Dr. Chow was probative of his relationship
with Mount Sinai. Snow's comments about whether patients calling
the hospital would be told that Dr. Schikman was an independent
contractor, the purpose of the independent contractor provision
in Dr. Schikman's contract with the hospital and his views
regarding the hospital's case were relevant as to whether Dr.
Schikman was an agent or an independent contractor. Thus, we see
no error in permitting this testimony. However, assuming
arguendo that error occurred regarding these matters, UHS and
Mount Sinai have failed to persuade us of any resultant
prejudice.
IV
Dr. Schikman argues that the trial court erred in denying
his motion to bar the testimony of plaintiffs' expert witness,
Dr. Wagner. Defendant asserts that the testimony presented by
Dr. Wagner was cumulative to that of plaintiffs' other experts,
Dr. Kessler and Dr. Upton. The admission of evidence is left to
the discretion of the trial court, and the trial court may, in
its discretion, exclude cumulative testimony. Hubbard v. Sherman
Hospital, 292 Ill. App. 3d 148, 155, 685 N.E.2d 648 (1997).
However, the trial court's decision may not be disturbed absent a
clear abuse of discretion. Hubbard, 292 Ill. App. 3d at 155.
We do not believe the testimony of Dr. Wagner was cumulative
to the testimony of Dr. Kessler and Dr. Upton. Dr. Upton was
called to testify as a neurologist. Dr. Kessler was called to
testify as a hematologist. And Dr. Wagner was called to testify
to the standard of care as an internist. Therefore, we hold that
the trial court correctly denied Dr. Schikman's motion to bar Dr.
Wagner's testimony.
V
We next address defendants' claim that the jury verdict for
$11,962,390 was excessive. The amount of a verdict is generally
a factual question for the discretion of the jury. Swaw v.
Klompien, 168 Ill. App. 3d 705, 716, 522 N.E.2d 1267 (1988);
Clark v. City of Chicago, 88 Ill. App. 3d 760, 765, 410 N.E.2d 1025 (1980). Courts are reluctant to interfere with the jury's
exercise of discretion in this area. Chambers v. Rush-
Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458,
467, 508 N.E.2d 426 (1987). The test to be used when examining
a verdict challenged as being excessive is whether the total
amount of the verdict falls within the necessarily flexible
limits of fair and reasonable compensation, or is so large as to
shock the judicial conscience. Johanek v. Ringsby Truck Lines,
Inc., 157 Ill. App. 3d 140, 155, 509 N.E.2d 1295 (1987), citing
LeMaster v. Chicago Rock Island & Pacific R.R. Co., 35 Ill. App.
3d 1001, 343 N.E.2d 65 (1976). A reasonable balance should be
made between the amount of damages and the extent of the
injuries; however, there is no precise rule by which an award of
damages can be fixed in a personal injury action because such
compensation does not lend itself to mathematical computation.
Johanek, 157 Ill. App. 3d at 155.
Evidence presented at trial established that Edgardo was 29
years old when he had a stroke. As a result of the stroke, he
has a speech impediment called expressive aphasia or Broca's
aphasia, which prevents him from speaking. He uses hand gestures
and the assistance of a computer device. Edgardo continues to
suffer from episodes of seizure and has difficulty in overall
mobility and language function. He has suffered permanent
disfigurement to the right side of his entire body and has
impaired vision. Before the stroke, Edgardo enjoyed biking,
running and walking. He can no longer engage in these
activities. Testimony also established that he suffers from pain
intermittently and that his future care needs include physical
therapy, occupational therapy, speech therapy and psychiatric
care. Edgardo's 74-year-old father has moved in with him and
stays with Edgardo all day.
Based on the evidence, we cannot say that the award is so
large as to shock the judicial conscience. Nor can we say that
the size of the verdict is the result of prejudice or passion on
the part of the jury.
VI
Finally, plaintiffs cross-appeal and argue that the trial
court erred in exercising remittitur and reducing the jury's
award for loss of services from $500,000 to $200,000. Defendants
contend that plaintiffs failed to present any evidence of loss of
services to support the award and request a new trial, a new
trial on damages, or a remittitur of the award.
A jury's award will not be subject to remittitur where it
falls within the flexible range of conclusions which can be
reasonably supported by the facts. Riley v. Koneru, 228 Ill. App.
3d 883, 888, 593 N.E.2d 788 (1992); Wagner v. City of Chicago,
254 Ill. App. 3d 842, 860, 626 N.E.2d 1227 (1993); Guerrero v.
City of Chicago, 117 Ill. App. 3d 348, 352, 453 N.E.2d 767
(1983). A trial judge does not have the power to speculatively
and gratuitously negate a jury's verdict; rather, a basis in
fact, evidenced by the record, must exist showing the award was
erroneous or was the result of prejudice or passion before it can
be reduced. Batterton v. Thurman, 105 Ill. App. 3d 798, 804, 434 N.E.2d 1174 (1982).
Here, the trial court reduced the jury's award for loss of
services by $300,000. However, the trial court did not indicate
a basis in fact to show that the award was erroneous. Regarding
the award for loss of services, in closing arguments to the jury,
the plaintiffs recommended damages in the amount of $500,000,
while the defendants argued that no damages should be awarded.
The evidence presented during the trial revealed that Edgardo
regularly had taken his family on various outings such as to the
beach, Great America and the zoo. Ruby Dahan also testified
that, prior to his stroke, Edgardo would usually take part in
such outings on the weekends while she was working. Edgardo's
son, Andrew Nicholas Dahan, who was eight years old at the time
of trial, also testified to these activities and added that,
prior to his stroke, Edgardo would take him and his friends to
various events and activities and to family affairs. We cannot
say that this testimony was insufficient to support the jury's
award for loss of services. See Wood v. Mobil Chemical Co., 50
Ill. App. 3d 465, 478, 365 N.E.2d 1087 (1977) (evidence of the
general usefulness, industry and attention to the home and within
the family, decision-making, and rearing and disciplining of
children supported giving standard jury instruction on loss of
services); see also generally Pfeifer v. Canyon Construction Co.,
253 Ill. App. 3d 1017, 1030, 628 N.E.2d 746 (1994) (material
services are highly personal to and generally flow from, the
particular relationship between specific spouses). Accordingly,
since the trial court articulated no basis for reducing the
jury's award, we hold that the trial court erred in granting a
remittitur.
For the reasons stated we affirm the general verdict of the
jury. The remittitur awarded to defendants is reversed and the
judgment entered pursuant thereto is vacated. The original jury
award for loss of services is reinstated and judgment is ordered
entered thereon.
Affirmed in part. Reversed in part. Judgment of trial
court vacated. Judgment ordered entered in favor of plaintiffs
on the jury's verdict.
McNULTY, P.J., and RAKOWSKI, J., concur.
JUSTICE RAKOWSKI, specially concurring:
I respectfully submit that the jury erred in concluding that
Dr. Schikman was an actual agent of the hospital. There is no
evidence suggesting such a conclusion. Moreover, the lack of
control by the hospital over Dr. Schikman's methods of diagnosis
and treatment, and the method of payment all clearly indicate
that he is an independent contractor.
I also do not agree with the following statement from page 7
of the majority opinion:
"[T]he relevant inquiry here, under Gilbert,
in determining whether Dr. Schikman was an
actual or apparent agent of Mount Sinai, is
whether Edgardo knew that Dr. Schikman was an
independent contractor."
The issue in Gilbert was whether a hospital can be found
vicariously liable for the acts of an independent contractor
physician under the doctrine of apparent authority. Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511, 514 (1993). The
case has nothing whatsoever to do with actual authority.
I do, however, concur that the question of apparent
authority was properly a fact question for the jury to determine.
I also concur in all other respects with the majority
opinion.