Dienstag v. Margolies

• Decision Date: 30 September 2009
• Docket Number: No. 1-06-1558.,1-06-1558.
• Citation: 919 N.E.2d 17
• Parties: Marsha DIENSTAG and Gary Dienstag, Plaintiffs-Appellees, v. Lawrence MARGOLIES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

919 N.E.2d 17

Marsha DIENSTAG and Gary Dienstag, Plaintiffs-Appellees, v. Lawrence MARGOLIES, Defendant-Appellant.

No. 1-06-1558.

Appellate Court of Illinois, First District.

September 30, 2009.

Rehearing Denied December 4, 2009.

Ruff, Weidenaar & Reidy, Ltd., of Chicago (James R. Quinn and Todd M. Porter, of counsel); and Dykema Gossett, PLLC, of Joliet (Pamela Davis Gorcowski, of counsel), for Appellant.

Law Offices of Kenneth C. Chessick, M.D., of Schaumburg (Kenneth C. Chessick, M.D., of counsel); and Novoselsky Law Offices, of Chicago (David A. Novoselsky and Brian A. Schroeder, of counsel), for Appellee.

Justice COLEMAN delivered the opinion of the court:

Defendant, Dr. Lawrence Margolies, appeals from an order of the circuit court of Cook County entering judgment on the verdict in favor of plaintiffs in the remitted amount of $5,450,000. In a medical malpractice action, plaintiffs Marsha Dienstag and Gary Dienstag alleged that Dr. Margolies, a gynecologist, negligently failed to timely diagnose Marsha Dienstag's breast cancer. Following the trial, the jury returned a verdict in favor of plaintiffs in the amount of $5,950,000. The trial court denied defendant's motion for judgment notwithstanding the verdict or, alternatively, for a new trial and granted in part defendant's motion for remittitur reducing the verdict by $500,000.

Defendant argues on appeal that the trial court erred by denying his posttrial motion for judgment notwithstanding the verdict or, alternatively, a new trial because, at very least, the verdict was against the manifest weight of the evidence. Defendant also contends that he is entitled to a new trial just on damages, or alternatively, additional remittitur. Defendant further argues that he is entitled to a new trial because statements from plaintiffs' counsel and a witness, as well as improper evidentiary rulings, deprived defendant of a fair trial. For the reasons discussed below, we affirm.

BACKGROUND

In May 2000, Marsha Dienstag (plaintiff or Marsha) was 54 years old when she was diagnosed with Stage III breast cancer. Dr. Lawrence Margolies (defendant) had been Marsha's gynecologist since the mid-1980s. Marsha had a family history of cancer; an aunt had had breast cancer and a grandmother had had ovarian cancer. In 1991, after a mammogram showed an area of calcification in her left breast, Marsha had a biopsy. The biopsy was benign, but revealed atypical ductal hyperplasia. Marsha continued to have annual mammograms. In February 1998, Dr. Margolies prescribed estrogen to Marsha to alleviate some symptoms of menopause.

In July 1998, Marsha had her annual mammogram. The radiologist's report stated that the tissue was dense, which may lower the sensitivity of mammography. The report also found that there was a "benign-appearing focal asymmetric density in the left breast in the axillary tail position." The radiologist recommended returning for a mammogram in one year.

In July 1999, Marsha returned for her annual mammogram. The radiologist's report again stated Marsha's breast tissue is dense, which may lower the sensitivity of mammography. The report also found "asymmetric increased density left breast compared to right with discrete nodular areas probably cysts or fibroadenoma." The radiologist's assessment was "probably benign," but he recommended an ultrasound of the left breast. Marsha had an ultrasound that indicated "no masses or cysts; that the areas of concern represented dense, but otherwise normal glandular tissue." The radiologist assessed the findings as probably benign and recommended a one-year follow-up.

Marsha returned to see Dr. Margolies on November 2, 1999, complaining of breast tenderness and enlargement. Dr. Margolies physically examined Marsha, but at that time he felt no dominant lump. Dr. Margolies continued Marsha on estrogen and told her to see him in six months. When she returned on May 4, 2000, there was a palpable lump. Dr. Margolies ordered a mammogram and ultrasound that recommended a surgical consultation to remove a four-centimeter solid mass. Dr. Margolies referred Marsha to a general surgeon for consultation. The surgeon biopsied the mass and found it was malignant. Marsha then had a modified radical mastectomy to entirely remove her left breast and any involved lymph nodes. Following her mastectomy, Marsha underwent radiation for 5 days a week for 5 to 6 weeks and chemotherapy for 24 weeks. Thereafter, Marsha had reconstructive surgery.

Marsha Dienstag and her husband, Gary Dienstag, filed a complaint in negligence seeking damages against Dr. Margolies for failing to timely diagnose her breast cancer. Plaintiffs alleged that Dr. Margolies breached the standard of care by failing to discontinue estrogen and by failing to refer Marsha to a surgeon following either of her mammograms in 1998 or 1999. Plaintiffs alleged that had Dr. Margolies made such a referral in 1998 or 1999, Marsha would not have had to undergo a radical mastectomy of the left breast and such extensive chemotherapy and radiation, and the cancer would not have spread to her lymph nodes.

At the jury trial, plaintiffs presented testimony from Dr. Douglas Merkel, Marsha's treating oncologist, Dr. William Matviuw, a retained expert obstetrician-gynecologist who gave standard of care testimony, and Dr. Lawrence Hollander, a retained general surgeon who gave proximate cause testimony. Plaintiffs Marsha and Gary Dienstag each testified. Dr. Margolies was called by plaintiffs as an adverse witness. Marsha's treating physical therapist as well as her treating orthopedic surgeon also testified in plaintiff's case-in-chief.

Dr. Margolies testified on his own behalf. Defendant presented expert testimony from Dr. Andrew Roth, a obstetrician-gynecologist, and Dr. Bruce Silver, a diagnostic radiologist. Defendant also presented testimony from Marsha's treating radiation oncologist.

On October 17, 2005, the jury returned a verdict in favor of plaintiff, itemized as follows for Marsha Dienstag: disfigurement $1 million; loss of normal life $1,375,000; pain and suffering $2 million; medical expenses $325,000; lost salaries and benefits $300,000; and possibility of cancer recurrence $650,000. The jury also awarded damages to Gary Dienstag, itemized as follows: loss of society and companionship $100,000; and loss of services $200,000. The jury verdict totaled $5,950,000.

Defendant filed a posttrial motion seeking judgment notwithstanding the verdict or, alternatively, a new trial. Defendant also sought remittitur of the verdict to a total of $1 million (the limits of Dr. Margolies' malpractice insurance policy). The trial court denied defendant's posttrial motion for judgment notwithstanding the verdict or a new trial and granted in part defendant's motion for remittitur. The trial court remittited the verdict as follows: Marsha's damages for loss of normal life were reduced from $1,375,000 to $1,275,000; Marsha's damages for lost salaries and benefits were reduced from $300,000 to $50,000; Gary's damages were reduced from a total of $300,000 to $150,000. The trial court entered judgment on the verdict in the amount of $5,450,000. This appeal followed.

DISCUSSION

1. Mootness

Prior to reaching the merits of the appeal, we address, as a threshold issue, plaintiffs' argument that the appeal is moot. In response to Dr. Margolies' appeal, plaintiffs argue that this court should dismiss the appeal as moot because the Dienstags entered an "assignment and forbearance" agreement with Dr. Margolies. The agreement assigns to the Dienstags Dr. Margolies' claim against his malpractice insurance carrier (ISMIE) for "bad-faith refusal to settle," in exchange for the Dienstags' agreement that they will not seek payment of the excess judgment (i.e., the amount of the judgment exceeding the limits of Dr. Margolies' policy) from Dr. Margolies. Plaintiffs contend that this agreement renders the instant appeal moot because there is no longer a "live controversy" between the parties. We disagree.

In support of this argument, plaintiffs cite only cases expounding general propositions of mootness and none that require dismissal of the present appeal. This court addressed this very issue in Ford v. Herman, 316 Ill.App.3d 726, 249 Ill.Dec. 942, 737 N.E.2d 332 (2000), and concluded that an appeal such as the one pending is not moot.

In Ford, the plaintiffs sought to recover damages for injuries sustained in a vehicle collision with the defendant. Ford, 316 Ill.App.3d at 728, 249 Ill.Dec. 942, 737 N.E.2d 332. The defendant was insured by Gallant Insurance Company with applicable bodily injury limits of $20,000. Pursuant to his contract with Gallant, the carrier provided the defendant with legal counsel. Ford, 316 Ill.App.3d at 729, 249 Ill.Dec. 942, 737 N.E.2d 332. Following the trial, the jury returned a verdict for the plaintiffs in the amount of $78,693. The jury also awarded $6 million in punitive damages. The defendant appealed. Ford, 316 Ill.App.3d at 729, 249 Ill.Dec. 942, 737 N.E.2d 332.

After judgment was entered on the jury's verdicts, Gallant, as the defendant's insurer, tendered payment of the policy limits ($40,000) plus interest and costs to the plaintiffs. Upon receipt of the payment, the plaintiffs executed a partial satisfaction of the judgment, which was filed in the circuit court. Ford, 316 Ill.App.3d at 730, 249 Ill.Dec. 942, 737 N.E.2d 332. Thereafter, in exchange for a release from further satisfaction of the judgment balance, the defendant assigned his chose in action against Gallant for its bad faith refusal to settle the claim within the policy limits. Ford, 316 Ill.App.3d at 730, 249 Ill.Dec. 942, 737 N.E.2d 332.

The plaintiffs sought dismissal of the appeal on mootness grounds. The plaintiffs argued that since the defendant had been released from further personal liability, only Gallant and its attorneys were pursuing the appeal. Thus, the plaintiffs contended that the...