JACKSON v. REID, 3-09-0512.

• Citation: 402 Ill.App.3d 215,343 Ill.Dec. 750,935 N.E.2d 978
• Decision Date: 29 June 2010
• Docket Number: No. 3-09-0512.,3-09-0512.
• Parties: Morgan JACKSON, a Minor, by Her Parents, Ken JACKSON and Jody Jackson, and Ken Jackson and Jody Jackson, Individually, Plaintiffs-Appellants, v. Churphena REID, and Affiliated Urology Specialists, Ltd., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 215
935 N.E.2d 978
343 Ill.Dec. 750

Morgan JACKSON, a Minor, by Her Parents, Ken JACKSON and Jody Jackson, and Ken Jackson and Jody Jackson, Individually, Plaintiffs-Appellants,
v.
Churphena REID, and Affiliated Urology Specialists, Ltd., Defendants-Appellees.

No. 3-09-0512.

Appellate Court of Illinois,Third District.

May 24, 2010.
As Modified Upon Denial of Rehearing June 29, 2010.

935 N.E.2d 979

COPYRIGHT MATERIAL OMITTED.

935 N.E.2d 980

Lisa Corwin (argued), Wylder Corwin Kelly LLP, Bloomington, for Morgan Jackson.

Adam P. Chaddock (argued), Murvel Pretorius, Jr., Quinn, Johnston, Henderson, Pretorius & Cerulo, Peoria, for Churphena Reid, M.D.

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MODIFIED UPON DENIAL OF REHEARING

Justice WRIGHT delivered the opinion of the court:

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343 Ill.Dec. 753

On December 6, 2004, plaintiffs, both individually and on behalf of their minor child, brought a medical malpractice action against defendants. A jury returned a verdict in favor of defendants on January 16, 2009. On appeal, plaintiffs claim that the trial court incorrectly denied their motion for mistrial. Further, plaintiffs assert the trial court erred as to certain evidentiary matters during trial.

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FACTS

On December 6, 2004, plaintiffs filed a two-count complaint against defendants Churphena Reid (Reid) and Affiliated Urology Specialists, Ltd. (Affiliated). The complaint alleged that Morgan Jackson (Morgan) was born to Ken and Jody Jackson on June 24, 1999. The complaint further alleged that Reid, a licensed physician, provided care and treatment to Morgan from November 1999 to August 2003. On June 30, 2003, Reid performed a surgical procedure known as bilateral ureteral implantation on Morgan, followed by an additional surgery on July 2, 2003. During this time period, Reid acted as an agent or employee of Affiliated.

Plaintiffs alleged that Reid was negligent by (1) performing the procedure “without specific indications for the surgery”; (2) improperly managing the procedure; (3) failing to leave a urinary drain postoperatively; (4) deviating from the standard of care; (5) failing to diagnose a “massive urinary extravasation”; (6) utilizing improper treatments; and (7) failing to consult with an intensivist, nephrologist or pulmonologist as to an opinion of Morgan's postoperative course.

Plaintiffs Ken and Jody Jackson brought count I of the complaint on behalf of Morgan and sought an amount in excess of $50,000 jointly and severally from Reid and Affiliated. Count II of the complaint was brought by Ken and Jody Jackson, individually, claiming, that as parents of Morgan, they are obligated to pay past and future medical expenses for treatment provided to Morgan resulting in a financial loss proximately caused by the negligence of Reid and Affiliated. Ken and Jody Jackson sought an amount in excess of $50,000 against Reid and Affiliated, jointly and severally.

Plaintiffs' Pretrial Requests

On January 2, 2009, plaintiffs filed three separate pretrial requests. First, plaintiffs filed a Supreme Court Rule 237(b) (210 Ill.2d R. 237(b)) request for defendants to produce:

“All medical articles, articles, journals, treatises, texts, or other materials (including, but not limited to, those reviewed by Churphena Reid prior to her deposition which Plaintiff requested, and Defendants refused to produce) considered authoritative by defendant at the time of the occurrence, or since, regarding the care and treatment given by Defendant to Morgan Jackson.”

Additionally on January 2, 2009, plaintiffs filed a motion in limine. Paragraph one sought an order barring defendants from communicating or implying that plaintiffs had or will receive insurance benefits for losses. Paragraph 3 sought an order barring testimony that someone other than Reid made the medical determination that the surgery was necessary. Paragraph 6 sought an order barring testimony that

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Morgan's postsurgery bed-wetting was caused by her parents' divorce. Paragraph 10 sought an order barring “[a]ny information regarding insurance, including that Ken and Jody Jackson had

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935 N.E.2d 982

insurance at the time of Morgan's surgery, or that Churphena Reid scheduled Morgan's surgery on June 30, 2003, because Ken and Jody Jackson were changing insurance coverage on July 1, 2003.”

Also on January 2, 2009, plaintiffs filed a motion to bar the testimony of Lori Klaus. According to the motion, defendants disclosed Lori Klaus as a lay witness who would testify regarding notes in the medical records regarding “personal conversations and phone conferences with Jody Jackson and/or Ken Jackson.” One attached exhibit was a copy of telephone messages that indicated Jody Jackson called Reid on May 22, 2003, and asked if the August 2003 tests and office visit could take place on an earlier date because the family's insurance was changing. At the end of the note, it indicated “OK'd by CAR.” Another exhibit included a telephone message saying that Jody Jackson called Affiliated on May 27, 2003, in order to speak to Reid and wanted to know if “CAR can schedule surgery before end of June, so CAR will be covered in network.” Another exhibit consisted of an office entry dated May 28, 2003, stating that “per CAR schedule renal/bladder sono [ sic ] PPV same day as UCUG & pencil in for surgery in June for right ureteral reimplantation.” According to other exhibits attached to the motion, LK called Jody Jackson on June 17, 2003, and verified surgery for June 30, 2003.

On January 2, 2009, defendants filed a response to plaintiffs' motion in limine that objected to paragraphs 3, 6, and 10 of plaintiffs' motion. On the same date, defendants filed a written response objecting to the motion to bar Klaus's testimony. On January 8, 2009, the trial court addressed plaintiffs' motion in limine.

The trial court heard arguments relating to paragraph 6 of the motion in limine, which requested that the trial court bar evidence that Morgan's postsurgery bed-wetting was caused by her parents' divorce. Plaintiffs' counsel argued that there was not any testimony or evidence that Morgan's bed-wetting was caused by family trauma and that defendants were setting out a general proposition “without anything to back it up.” Further, according to counsel, the bed-wetting began immediately following the surgery in 2003, and Morgan's parents did not divorce until 2005. Plaintiffs' counsel believed that there was a foundational timing issue, and therefore, the questioning was irrelevant. The trial court ruled that if plaintiffs' expert testified during direct examination that the surgery was the only cause of Morgan's bed-wetting, then defense counsel could “probe into what possible other causes there could be.”

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The parties agreed that paragraphs 3 and 10 of plaintiff's motion in limine and the separate motion to bar Klaus's testimony involved interrelated issues. The first issue was whether someone other than Reid determined surgery was medically necessary. Another related issue was whether changes in plaintiffs' insurance coverage should be revealed to the jury. The court barred Klaus's testimony, but indicated he would revisit the issue if necessary at trial.

On January 12, 2009, the trial court entered a written order allowing paragraph 1 of plaintiffs' January 2, 2009, motion in limine and denying the motion as to paragraphs 3 (someone other than Reid decided the need for surgery) and 6 (bed-wetting). Also according to the order, the trial court granted paragraph 10 over defendants' objection. The court wrote:

“The Court's granting of Paragraph 10 of Plaintiffs' Motion in Limine is subject to the same provisions as is its ruling on the Motion to Bar Klaus, stated below. * * * With respect to Plaintiffs' Motion

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to Bar Klaus, Plaintiffs' Motion is denied on the grounds that Defendants' Rule 213 Disclosure was inadequate. Plaintiffs' Motion is granted on the grounds of relevancy. The Court will revisit this ruling upon Motion of Defendants if the evidence demonstrates that Klaus's testimony has become relevant.”

Defendant's Motion In Limine

On December 29, 2008, defendants filed a motion in limine seeking numerous remedies from the court. Paragraph 17 of defendants' motion is the only portion of that motion which is relevant to the issues presented on appeal. In paragraph 17, defendants sought an order barring plaintiffs from questioning Reid regarding medical research she conducted or later discussed with her attorney. On January 5, 2009, plaintiffs filed a response to defendants' motion in limine and a motion to strike.

At the January 8, 2009, hearing, defense counsel stated to the court that paragraph 17 of his motion in limine related to a discovery dispute that arose in Reid's deposition 18 months ago on June 19, 2007. Plaintiffs' counsel advised the court that during Reid's deposition, defense counsel refused “to turn over the documents which were at the deposition, and he [defense counsel] instructed his client not to answer a question I asked about those articles.” The record reveals that prior to the deposition, plaintiffs' counsel sent a request for Reid to produce “[c]opies of articles, texts, or other documents which Defendant, Dr. Reid, has reviewed in preparation for the deposition or in connection with the treatment of, and claim by, Morgan Jackson.” The record also shows that at the end of the deposition, plaintiffs' counsel stated she would “wait for a ruling on various issues that

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couldn't be resolved in terms of the production of the articles and the instructions to the witness not to answer the questions.”

On January 9, 2009, the trial court found that plaintiffs' counsel should be able to cross-examine Reid regarding whether she reviewed any articles that were contrary to her opinion. Further, the trial court ordered that Reid produce those articles still in her...