In its written opinion filed on April 30, 2015, the Appellate Court of Illinois First District affirmed a trial court’s granting of a new trial on liability and damages after an Illinois medical malpractice jury found that the defendant physician was negligent and that his negligence caused the death of an elderly patient but nonetheless the jury did not award any damages to the patient’s estate.
The 83-year-old patient had two children: a son (who served as Special Administrator of his mother’s Estate) and a daughter. According to the daughter, on January 9, 2009, her mother telephoned her to say that she had been vomiting, she was not feeling well, and she requested that her daughter come to her home. The daughter arrived a couple hours later and found that her mother looked tired but was still able to walk and was able to get out of bed to go to the bathroom to vomit over the next couple of hours.
Early the next morning, the mother asked her daughter to bring her to the emergency room because she was still vomiting. About eight hours later, the daughter spoke with her mother’s primary care physician, who advised her that her mother’s condition was serious, that her mother may require surgery if she had an intestinal blockage, that a diagnostic CT scan of her mother was inconclusive, and that her mother probably needed a colonoscopy to properly diagnose her condition.
On the second day of hospitalization, the defendant gastroenterologist performed the colonoscopy. During the procedure, the woman allegedly vomited, which required that a breathing tube be inserted, followed by emergency surgery that included resecting the woman’s colon. The woman was taken from the operating room to the ICU, where she remained intubated and died two days later, on January 14, 2009.
During the ensuing medical malpractice trial, various medical experts testified on behalf of the parties as to their opinions regarding the care the woman received and whether the care complied with the applicable standard of care or deviated from the standard of care (i.e., by performing a colonoscopy on the woman at the time when she was experiencing an acute diverticulitis attack).
During closing arguments to the jury, the plaintiff’s medical malpractice lawyer argued that the evidence presented at trial established that the defendant physician deviated from the standard of care by performing the colonoscopy on the woman without first attempting to see if the antibiotics would work, and that the woman had died as a direct result of his decision to proceed with the procedure.
Even though the jury found that the defendant physician had been negligent in treating the woman and that his negligence was the cause of her death, the jury nonetheless awarded zero damages to the plaintiff. The plaintiff filed a motion for a new trial as to damages only, but the trial court vacated the judgment of the jury, setting the case for a new trial on all issues, including liability, reasoning that “this jury did conflate the two issues of liability and damages,” and that a trial on all issues was “the only appropriate remedy.”
The Appellate Court affirmed the trial court’s post-trial decision, finding that the trial court did not abuse its discretion in ordering a new trial because the record revealed that the zero damages award was against the manifest weight of undisputed evidence presented at trial: the jury was presented with a choice of two verdict forms: (1) form A, under which it could find for the plaintiff and award damages; and (2) form B, under which it could find for the defendant. The jury instructions explicitly advised the jury that if it chose to sign verdict form A, instead of B, it was required to determine the amount of damages to be awarded to the plaintiff. Verdict form A itemized those damages into two categories, namely: (1) pecuniary loss and (2) economic loss (including the reasonable expenses of necessary medical care and funeral expenses).
The Appellate Court stated that it was inexplicable for the jury to have awarded zero for medical expenses and funeral expenses incurred by the woman’s estate where the evidence of those expenses was stipulated to and undisputed at trial (“As such, the jury’s award of zero damages for losses to the estate could not be reconciled with its finding of liability on part of the defendant. Accordingly, that zero award was against the manifest weight of the evidence and the judge was well within his discretion to remand for a new trial”).
As to whether the trial court should have granted a new trial as to damages only, the Appellate Court stated that a new trial on damages alone may be granted where: (1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the question of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict or that the error which resulted in the jury’s awarding inadequate damages also affected the jury’s finding of liability.
The Appellate Court found that the plaintiff had failed to satisfy the third prong: “… from the record, we are unable to determine whether the jury found liability at all, whether it failed to understand or simply follow the jury instructions, or whether, alternatively, it reached a compromise verdict.”
Source Cimino v. Sublette, M.D., 2015 IL App (1st) 133373.
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