Malanowski v. Jabamoni, 1-00-1528.

• Court: United States Appellate Court of Illinois
• Citation: 332 Ill. App.3d 8,265 Ill.Dec. 596,772 N.E.2d 967
• Docket Number: No. 1-00-1528.,1-00-1528.
• Parties: Alan MALANOWSKI, individually and as Special Administrator, Plaintiff-Appellant, v. Dr. Reena JABAMONI, M.D., Defendant-Appellee.
• Decision Date: 28 June 2002

772 N.E.2d 967
332 Ill. App.3d 8
265 Ill.Dec. 596

Alan MALANOWSKI, individually and as Special Administrator, Plaintiff-Appellant,
v.
Dr. Reena JABAMONI, M.D., Defendant-Appellee

No. 1-00-1528.

Appellate Court of Illinois, First District, First Division.

June 28, 2002.

772 N.E.2d 969

Jerome W. Pinderski, Jr. and Paul C. Pinderski, of Pinderski & Pinderski, Palatine, for Plaintiff-Appellant

Robert Marc Chemers and Scott Howie of Pretzel, Stouffer, Chartered, Chicago, for Defendant-Appellee.

Justice TULLY delivered the opinion of the court:

Plaintiff, Alan Malanowski, filed this medical malpractice action against defendants, Dr. Reena Jabamoni and Loyola University of Chicago. Defendant Loyola University settled with the plaintiff and is not a party in this appeal. In his complaint, plaintiff alleged that defendants were negligent in the treatment of the decedent, Jane Malanowski, on July 31, 1991. After a trial, the jury rendered a verdict for defendant.

On appeal, plaintiff argues that the trial court (1) erred by admitting testimony barred by the Dead-Man's Act (Ill.Rev. Stat.1991, ch. 110, par. 8-201); (2) improperly limited plaintiffs expert witness' testimony; (3) improperly limited plaintiffs testimony; (4) erred in allowing the defendant two expert witnesses; (5) erred by not allowing exhibits into jury deliberations; (6) erred in limiting Plaintiffs closing argument; and (7) erred in instructing the jury. Plaintiff further argues that these cumulative errors substantially prejudiced his right to a fair trial. For the following reasons, the judgement of the trial court is affirmed.

BACKGROUND

In July, 1991, the decedent, Jane Malanowski (Malanowski), called her gynecologist, Dr. Reena Jabamoni (Dr. Jabamoni), complaining of a lump under her arm. Malanowski decided to wait to see her doctor for her routine gynecological examination which was scheduled for two weeks later. On July 31, 1991, Malanowski visited Loyola Medical Center where Dr. Jabamoni performed a routine gynecological exam including a pap smear and a breast examination. Malanowski reported a reduction in the size of the lump. In Malanowski's medical records from the July 31 exam, Dr. Jabamoni notes a right axillary lipoma of 2 cm. Jabamoni further noted "advised removal if persists." No followup examination was scheduled.

In March of 1993, Malanowski visited Dr. Thomas Ho at his office in Wisconsin. Dr. Ho found a firm lump on Malanowski's right breast and a mass in her right axilla. In April, 1993, Malanowski was diagnosed with Stage III, T2 N2 breast cancer with metastasis to the right axilla. Malanowski was to undergo mastectomy, lymph node

772 N.E.2d 970

dissection and high dose chemotherapy with blood stem cell refusion. Malanowski died on December 15,1993, from complications arising from her breast cancer

Prior to trial, plaintiff moved in limine to prevent Dr. Jabamoni from testifying to the content of her conversation with the decedent during the July 31, 1991 examination, arguing that such testimony would be barred by the Dead-Man's Act. The trial court denied the motion and the plaintiff did not renew his objection at trial. The plaintiff also moved in limine to bar Dr. Jabamoni from calling both of her experts, arguing that the two expert witnesses would give cumulative testimony. The trial court denied this motion as well and the plaintiff did not object to; either expert's opinion at trial.

Also prior to trial, Dr. Jabamoni moved in limine to prevent the plaintiff from testifying to what the decedent told him about what Dr. Jabamoni told her during the July 31, 1991 examination. The defendant argued that the testimony was inadmissible as double hearsay. The trial court granted the motion and the plaintiff was barred from testifying on that subject. The record does not contain any of the plaintiffs testimony, nor does it include a formal offer of proof as to what that testimony would have been.

The trial court also granted the defendant's motion in limine preventing the plaintiffs expert from testifying that Dr. Jabamoni had breached a standard of care in not ordering a mammogram for the decedent on July 31, 1991. The trial court ruled that because the expert would not testify that a mammogram would have detected cancer on that date, there was no evidence that the failure to order one caused any delay in the decedent's diagnosis. The trial court ruled that without a causal connection, any alleged breach of the standard of care was irrelevant.

DISCUSSION

The first issue raised on appeal is whether the trial court erred in allowing Dr. Jabamoni to testify as to conversations she had with the decedent, Jane Malanowski, on July 31, 1991. The plaintiff contends that such testimony should have been barred by the Dead-Man's Act.

First, we note that the plaintiff waived this argument by failing to object to Dr. Jabamoni's, testimony at trial. However, considering this issue under the plain error doctrine, we disagree with the plaintiff and find that the trial court did not err in allowing Dr. Jabamoni to testify about her conversation with the decedent.

The Dead-Man's Act provides:

"In the trial of any action in which any party sues or defends as the representative of a deceased person * * *, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased * * * or to any event which took place in the presence of the deceased * * *, except in the following instances:

(a) If any person testifies on behalf of the representative to any conversation with the deceased * * * or to any event which took place in the presence of the deceased * * *, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event." (Ill.Rev.Stat. 1991, ch.110, par. 8-201.)

Plaintiffs expert, Dr. Seltzer, testified about the progress notes, prepared July 31, 1991, in Dr. Jabamoni's handwriting, which state:

"Rt. axillary lipume 2 cm / Lym node Advised removal if persists"

772 N.E.2d 971

Based on the information found in these notes, Dr. Seltzer testified that because Malanowski complained of a lump in her armpit, Dr. Jabamoni should have reevaluated the patient and not left the responsibility of a follow-up with the patient. During the direct examination of Dr. Seltzer, the following took place

"[Plaintiff Counsel]: And Doctor, do you have an opinion to a reasonable

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