DeCastris v. Gutta, 2-91-0624
| Decision Date | 08 October 1992 |
| Docket Number | No. 2-91-0624,2-91-0624 |
| Citation | 604 N.E.2d 359,237 Ill.App.3d 168,178 Ill.Dec. 103 |
| Parties | , 178 Ill.Dec. 103 Muriel DeCASTRIS, Plaintiff-Appellee, v. Gandhi GUTTA, Defendant-Appellant (M. DePetrouch et al., Defendants). |
| Court | United States Appellate Court of Illinois |
William L. Barr, Jr., and Randy J. Curato, Bell, Boyd & Lloyd, Chicago, for Gandhi Gutta, M.D.
David B. Selig, Sussman Selig Ross, Michael W. Rathsack, Chicago, for Muriel DeCastris.
This action was brought to recover damages occasioned by the alleged medical negligence of the defendants in treating the plaintiff, Muriel DeCastris. Trial proceeded on plaintiff's third-amended complaint against only defendant Gandhi Gutta, M.D. Dr. Gutta severed plaintiff's bile duct during gallbladder surgery in 1984, leading to a series of complications including pancreatitis, infections and the need for an external drain. Plaintiff requested in argument at trial that the jury award her $650,000; defendant suggested an award of $150,000. The jury returned a general verdict for plaintiff in the amount of $225,000 upon which the court entered judgment. Dr. Gutta filed a timely post-trial motion pursuant to section 2-1205 of the Civil Practice Law (Ill.Rev.Stat.1983, ch. 110, par. 2-1205) to reduce the judgment by an amount equal to 50% of collateral source payments for medical expenses and lost wages which were shown by the evidence to total $103,206.79. Because the jury's verdict was a general one, the court declined to assume that it included an award for those payments, and it denied Dr. Gutta's motion. It is from that denial that Dr. Gutta appeals.
Dr. Gutta contends the court erred in refusing to reduce the judgment because the statute is mandatory and applies to unitemized, general verdicts. He further argues that the court ignored the established presumption that the jury is presumed to follow the instructions given it, that the jury's verdict necessarily included the plaintiff's medical expenses and lost wages, and that the plaintiff's constitutional challenge to section 2-1205 is waived and is unfounded.
Plaintiff argues the court's refusal to reduce the judgment should be affirmed because section 2-1205 violates due process and equal protection and, therefore, is unconstitutional, and, further, because Dr. Gutta has not shown that the trial court abused its discretion or that its finding was manifestly wrong.
Dr. Gutta replies that the plaintiff has waived the constitutionality issue by failing to file a cross-appeal and section 2-1205 has already been found to be constitutional. We affirm.
The jury trial took place from January 28 through February 8, 1991. During trial, the plaintiff testified in detail as to medical expenses totaling $89,206.79 which she testified "to the best of her knowledge and belief" had been paid in full. Dr. Gutta did not contest any of the medical bills and offered no evidence that these claimed medical bills were unreasonable, excessive or unrelated to the alleged negligence. Plaintiff also testified to lost income amounting to approximately $14,000. The parties do not dispute that the plaintiff's combined medical expenses and lost wages total $103,206.79.
During closing argument, plaintiff argued to the jury that, if it found for her, it was "a given" that she was entitled to reimbursement of the medical expenses and lost wages. Also in closing argument, Dr. Gutta argued to the jury that, with regard to medical bills and plaintiff's lost wages, if it found against him on liability, it would "maybe * * * have to think about giving that to [plaintiff], yes."
Plaintiff's instruction No. 14 was given to the jury over Dr. Gutta's objection to the inclusion of future pain and suffering:
"If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, taking into consideration the nature, extent, and duration of the injury.
The disability and disfigurement resulting from the injury.
The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
The reasonable expense of necessary medical care, treatment, and services received.
The value of earnings lost." (Emphasis added.) Illinois Pattern Jury Instructions, Civil, No. 30.01 (3d ed. 1989) (hereinafter IPI Civil 3d).
Plaintiff's instruction No. 17, general "Verdict Form A," was agreed to be given to the jury. That verdict form provided that: IPI Civil 3d No. 45.06.
On February 8, 1991, after argument and instructions, the jury returned a verdict in favor of the plaintiff and against Dr. Gandhi Gutta and awarded damages in the amount of $225,000. Judgment on the verdict was entered the same day.
On February 13, 1991, within 30 days of the entry of judgment, Dr. Gutta timely filed his motion to reduce the judgment pursuant to section 2-1205 of the Civil Practice Law. (Ill.Rev.Stat.1983, ch. 110, par. 2-1205.) Insofar as pertinent here, the defendant requested in the motion that the court reduce the judgment by an amount equal to 50% of the collateral source payments for medical expenses and lost wages.
Plaintiff objected to the motion for reduction, contending that Dr. Gutta waived the right to the reduction by failing to tender an itemized verdict form as required by section 2-1109 of the Civil Practice Law. (Ill.Rev.Stat.1983, ch. 110, par. 2-1109.) That section requires a verdict in a case for damages for injury to the person to be itemized into economic and noneconomic losses. Absent such itemization, the plaintiff argued, the court must speculate whether the jury's verdict included none, some or all of the claimed medical and lost wage expenses that had been paid or become payable to her by collateral sources. Plaintiff also argued that section 2-1205, in its then-unamended form, was unconstitutional on due process and equal protection grounds and that there was no evidence that plaintiff had been reimbursed for the $14,000 in lost wages. Plaintiff also argued that there was evidence at trial from which the jury could have inferred that her medical costs and lost wages were paid on her behalf by others. Thus, the jury might not have included those special damages in its verdict.
The court held a hearing on Dr. Gutta's motion to reduce the judgment on April 2, 1991. At the hearing, the plaintiff represented to the court that she had not been reimbursed for the lost wages shown by the evidence at trial. Accordingly, the court permitted Dr. Gutta to propound an interrogatory on that issue. The plaintiff answered the interrogatory, which this court granted leave to be filed as a supplemental record, stating that of the approximate $16,000 in lost wages she actually incurred, $2,041 was reimbursed by insurance. Consequently, approximately $14,000 in lost wages, as presented during trial, had not been reimbursed. On May 6, 1991, the trial court denied Dr. Gutta's motion to reduce the judgment, stating:
We first address Dr. Gutta's contention that the court erred in refusing to reduce the judgment because the statute is mandatory and applies to unitemized, general verdicts. Plaintiff's argument below concerning the lack of an itemized verdict as required by section 2-1109 of the Civil Practice Law appears to be the one which influenced the trial court to deny reduction. Plaintiff renews that argument here in support of affirmance, contending preliminarily that if the intent of section 2-1205 is to prevent a "double recovery," thereby fostering the governmental interest in reducing the costs of malpractice actions (see Bernier v. Burris (1986), 113 Ill.2d 219, 243, 100 Ill.Dec. 585, 497 N.E.2d 763), then it must first be determined that there is or will be a double recovery. That is, plaintiff contends, it was Dr. Gutta's burden to show that the verdict included an award of medical bills and lost wages. Plaintiff cites no authority for imposing this burden on Dr. Gutta, and, in fact, we find no such burden is imposed by virtue of section 2-1205 or section 2-1109.
Section 2-1205, in its unamended form, applied to the instant cause. It provides:
"An amount equal to 50% of the benefits provided for medical charges, hospital charges, lost wages, private or governmental disability income programs, or nursing or caretaking charges, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, shall be deducted from any judgment in an action to recover for that injury based on an allegation of negligence or other wrongful act, not including intentional torts, on the part of a licensed hospital or physician; provided, however, that:
(1) Application is made within 30 days to reduce the judgment;
(2) Such reduction...
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