Hall v. Roberto P. Cipolla & Osf Healthcare Sys.
| Decision Date | 16 October 2018 |
| Docket Number | NO. 4-17-0664,4-17-0664 |
| Citation | 2018 IL App (4th) 170664,127 N.E.3d 620,431 Ill.Dec. 87 |
| Parties | Jodi L. HALL, Independent Administrator of the Estate of Jason A. Hall, Deceased, Plaintiff-Appellant, v. Roberto P. CIPOLLA and OSF Healthcare System, d/b/a St. Joseph PromptCare, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Laird M. Ozmon, of Joliet, and James P. Ginzkey, of, Bloomington, for appellant.
Hinshaw & Culbertson LLP, of Chicago (Joshua G. Vincent, Jesse A. Placher, and Carson R. Griffis, of counsel), for appellees.
¶ 1 Plaintiff is Jodi Hall, independent administrator of the estate of Jason A. Hall (Hall), who is deceased. Defendants are an urgent-care physician, Roberto P. Cipolla, and his employer, OSF Healthcare System (OSF), doing business in Bloomington, Illinois, as St. Joseph PromptCare (PromptCare). Plaintiff brought this action against defendants for medical malpractice. In February 2017, the jury returned a verdict in defendants' favor. Plaintiff appeals, arguing that the McLean County circuit court erred by failing to direct a verdict in her favor and by denying her motion for judgment notwithstanding the verdict and her alternative motion for a new trial.
¶ 2 Specifically, plaintiff makes the following nine arguments.
¶ 3 First, plaintiff argues that the trial court should have directed a verdict in her favor. But plaintiff never moved for a directed verdict, and (setting aside the question of whether she would have been entitled to a directed verdict) we are aware of no statute or case laying an obligation on trial courts to direct verdicts on their own initiative.
¶ 4 Second, plaintiff argues that because Cipolla judicially admitted, in plaintiff's case-in-chief, that he breached the standard of care in his treatment of Hall, plaintiff was entitled to a directed verdict or at least a judgment notwithstanding the verdict. We hold that plaintiff forfeited her theory of judicial admissions by participating, without objection, in a full trial on the issue of whether Cipolla breached the standard of care. It was not until posttrial proceedings that plaintiff raised the theory that judicial admissions by Cipolla had eliminated that issue—after the parties had spent several days trying that issue and the jury had returned a verdict. Even if such affirmative acquiescence by plaintiff did not work a forfeiture, all of the admissions by Cipolla that she identifies in her brief are decontextualized evidentiary admissions, not judicial admissions.
¶ 5 Third, plaintiff argues that the verdict in defendants' favor is against the manifest weight of the evidence and that the trial court, therefore, erred by denying her motion for a new trial. We disagree that the evidence clearly and indisputably weighs in plaintiff's favor.
¶ 6 Fourth, plaintiff argues she should receive a new trial because the trial court refused to admit in evidence a chest pain protocol that OSF had drafted for use in its emergency department. Because the chest pain protocol discussed only emergency-department procedures and Cipolla committed the alleged malpractice in PromptCare instead of in the emergency department, we find no abuse of discretion in the court's ruling that the chest pain protocol was, by its own terms, irrelevant to this case.
¶ 7 Fifth, plaintiff argues she should receive a new trial because defendants had forfeited the affirmative defense of comparative negligence by failing to plead it and, thus, the trial court erred by denying her motion in limine to bar testimony that Cipolla had instructed Hall to follow up with his primary-care physician (something Hall never did). We hold that because plaintiff never made a contemporaneous objection to such testimony in the trial itself, this issue is forfeited.
¶ 8 Sixth, plaintiff argues she should receive a new trial because the trial court denied her motion to bar defendants from calling Janet Guth as a witness. Plaintiff represents to us that defendants disclosed Guth only one day before trial. On the contrary, it appears from the record that defendants disclosed her sooner than that. Defendants disclosed her before the court-imposed deadline by notifying plaintiff she reserved the right to call anyone whom plaintiff listed, in the past or future, as a witness (including Guth). Because the two discovery depositions that plaintiff took of Guth are not in the record, we are unable to tell if her testimony at trial was unfairly surprising to plaintiff. Any ambiguity arising from the incompleteness of the record should be resolved against plaintiff, the appellant.
¶ 9 Seventh, plaintiff argues she should receive a new trial because the trial court unjustifiably prevented her from impeaching Guth with her deposition testimony. Again, because the transcripts of Guth's depositions are not in the record, we lack the means to address this issue.
¶ 10 Eighth, plaintiff argues she should receive a new trial because the trial court refused her proposed jury instruction on the similar-locality rule. Because PromptCare is not a disadvantaged medical facility in a small, rural community, the similar-locality rule is inapplicable, and the court was correct to refuse plaintiff's proposed instruction on that rule.
¶ 11 Ninth, plaintiff argues she should receive a new trial because the trial court rejected her challenge for cause against two prospective jurors, Brandy Redman and Jacklyn Morris. Because plaintiff removed Redman by a peremptory challenge, it is unclear how plaintiff was prejudiced by the court's preceding refusal to remove Redman for cause. As for Morris, plaintiff explicitly accepted her as a juror even though she could have peremptorily challenged her, too. So, plaintiff has waived any contention of error in the court's preceding refusal to remove Morris for cause.
¶ 12 Finding no merit in any of those arguments, we affirm the judgment.
¶ 15 On November 10, 2010, Hall, who was 34, came to PromptCare for medical treatment. The employee at the front desk, Dawn Shay, asked him the reason for his visit. She typed: "[L]eft upper chest pain, was moving a lot [sic ] of metal today, ‘cramping in neck and arms sometimes.’ "
¶ 16 After examining Hall and administering an electrocardiograph, Cipolla diagnosed chest wall pain—specifically, muscle strain in the chest. He prescribed aspirin and Darvocet and told Hall to follow up with his primary-care physician.
¶ 17 Hall died of a heart attack a little more than three weeks later, on December 6, 2010.
¶ 18 Plaintiff brought this action against defendants, alleging that Cipolla had breached the standard of care by failing to (1) refer Hall to the emergency department, (2) obtain important medical information from him and enter it in his medical records, and (3) tell him that his electrocardiogram was abnormal.
¶ 20 During jury selection, two prospective jurors, Jacklyn Morris and Brandy Redman, divulged that they had received medical treatment at PromptCare. Morris said she had been to PromptCare about four times—the last time being several months ago—and she thought, but could not be sure, that Cipolla was the physician who had treated her; at least, he looked familiar. He was not, however, her primary-care physician, and she denied that anything about her visits to PromptCare would impair her fairness or impartiality. Nor was she concerned that her decision as a juror would have any effect on how Cipolla would treat her in the future, should she return to PromptCare. She would have no reservations about seeing him again as his patient.
¶ 21 Redman said that Cipolla had treated her at PromptCare but that it had been at least a couple of years ago. She denied that her past consultation with him, or potential future consultation with him, as his patient would have any effect on her decision in this case. She would have no qualms about receiving medical treatment from him again in the future.
¶ 22 Despite such assurances, plaintiff challenged Morris and Redman for cause, arguing that their visits to Cipolla, in PromptCare, should disqualify them from serving on the jury. The trial court rejected these challenges, noting that (1) plaintiff had not challenged a third prospective juror who had visited PromptCare, (2) none of the prospective jurors currently were undergoing treatment at PromptCare, and (3) it was a matter of speculation whether Morris or Redman ever would return to PromptCare.
¶ 23 After the trial court refused plaintiff's peremptory challenge of Morris and Redman, plaintiff accepted Morris and used her first peremptory challenge to remove Redman. The trial transcript of January 30, 2017, reads as follows:
¶ 26 Before trial, plaintiff filed a motion in limine to bar defendants from presenting evidence that Cipolla had instructed Hall to follow up with his primary-care physician, arguing that such evidence would be relevant only to comparative negligence, an affirmative defense that defendants had forfeited by omitting to plead it.
¶ 27 Defendants' attorney responded he had no intention to argue that Hall had been comparatively negligent. He said he intended only to show that Cipolla had done everything he was supposed to do as a conscientious urgent-care physician; one of the things he was supposed to do was tell Hall to follow up with his primary-care physician. The trial...
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...forfeiture aside, Summit's claim is without merit. "Alleged judicial admissions must be considered in their context." Hall v. Cipolla , 2018 IL App (4th) 170664, ¶ 122, 431 Ill.Dec. 87, 127 N.E.3d 620. Read in context, the statements at issue concerned allegations made in plaintiff's compla......
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...or (2) a trial error or an accumulation of trial errors prejudiced the movant or unduly affected the outcome of the trial." Hall v. Cipolla, 2018 IL App (4th) 170664, ¶ 131, 127 N.E.3d 620. Plaintiff asserts she was prejudiced because the judicial admission allowed defendants to circumvent ......