Taylor v. R.D. Morgan & Associates, Ltd., 5-88-0195

• Decision Date: 27 November 1990
• Docket Number: No. 5-88-0195,5-88-0195
• Citation: 205 Ill.App.3d 682,151 Ill.Dec. 80,563 N.E.2d 1186
• Parties: , 151 Ill.Dec. 80 Jerry TAYLOR and Vivian Wells, Plaintiffs-Appellants, v. R.D. MORGAN & ASSOCIATES, LTD., and Richard L. Morgan, M.D., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1186

563 N.E.2d 1186

205 Ill.App.3d 682, 151 Ill.Dec. 80

Jerry TAYLOR and Vivian Wells, Plaintiffs-Appellants, v. R.D. MORGAN & ASSOCIATES, LTD., and Richard L. Morgan, M.D. Defendants-Appellees.

No. 5-88-0195.

Appellate Court of Illinois Fifth District.

Nov. 27, 1990.

Martin L. Perron, Carr, Korein, Schlichter, Tillery, Kunin & Montroy, East St. Louis, for plaintiffs-appellants.

Charles E. Schmidt, Rebecca J. O'Neill, Mitchell, Brandon & Schmidt, Carbondale, for defendants-appellees.

Justice CHAPMAN delivered the opinion of the court:

This appeal arises from a medical malpractice case in which the trial court directed a verdict in favor of the defendants on the mother's claim for medical expenses, and the jury returned a verdict for the defendants on the son's claim. Five issues are presented for review:

(1) whether a directed verdict in favor of defendants and against the plaintiff on the mother's claim for medical expenses was correctly entered;

(2) whether a juror should have been stricken for cause;

(3) whether the jury was properly instructed;

(4) whether a new trial was required due to misunderstanding of the instructions on the part of the jury or juror misconduct; and

(5) whether a post-verdict evidentiary hearing regarding juror misconduct should have been conducted.

The plaintiff ¹, Jerry Taylor, was 16 years old at the time of his injury. His parents had been divorced in 1969, his mother, Vivian Wells, was awarded legal custody, and she took him to live with her in Manhattan, Illinois. Jerry's father, Robert Taylor, lived in the Marion area, and Jerry often stayed with his father when school was not in session. Vivian Wells had a vacation home on a lake near Marion and Jerry would be with her on the weekends.

During the summer of 1983 Jerry stayed with his father in the Marion area and he enrolled in high school in Marion for the fall term. While Jerry was with his father on a more or less permanent basis during this interval, Vivian Wells at no time relinquished legal custody. Even when Jerry was with his father, she fulfilled the obligations of the custodial parent insofar as making decisions with respect to Jerry's well-being.

On September 8, 1983, Jerry was riding a motorcycle when he clipped the corner of the bumper of a parked car with his right foot and seriously injured it. The extent of the injuries sustained in the collision itself was a matter highly disputed at trial because its degree determined to a large extent the appropriate method of treatment.

The jury was instructed that Jerry Taylor claimed Dr. Morgan was negligent in one or more of the following respects:

(a) amputated a greater portion of Jerry Taylor's leg and foot than was necessary;

(b) failed to perform a below-the-knee amputation in an appropriate manner;

(c) performed surgery on Jerry Taylor without obtaining an informed consent before doing a below-the-knee amputation.

With regard to the first charge, the positions taken by the parties may be summarized as follows. The plaintiff conceded that the foot was seriously injured in the original collision, but presented testimony which established that the heel pad (that portion of tissue and skin that lies beneath the bones of the foot that comprise the heel) was intact. The defendant presented testimony which established that, not only the toes and the front part of the foot, but also the heel pad was irreparably damaged. The condition of the heel pad was of crucial importance because all the experts agreed that if it were non-viable and irreparably damaged, then no part of the foot could be saved and the below-knee (b/k) amputation, which Dr. Morgan performed, was the proper level of amputation. On the other hand, if the heel pad had been viable, less drastic amputative procedures, which would have left Jerry with a part of his foot and the ability to walk without a prothesis, should have been utilized.

The testimony on the second charge was also disputed. The plaintiff's expert, Dr. Greenwalt, who subsequently operated upon Jerry because of the stump's failure to heal, testified that Dr. Morgan negligently left redundant bone and tissue at the operative site and failed to bevel the edges of the large bone of the leg when he performed the amputation. Dr. Morgan and the experts who testified on his behalf denied this charge.

A summary of the evidence submitted by the plaintiff on the informed consent charge reveals that Dr. Morgan arrived at the hospital at 8:40 p.m. and after examining Jerry told him, "I am going to take your right foot off." Jerry's father, Robert, arrived shortly after this occurred, and Robert was also told that the below-knee amputation was necessary. Robert Taylor and his wife, Sally, asked the doctor to do all that he could to save Jerry's foot and suggested that he be sent to St. Louis by helicopter if necessary. The doctor responded that if they tried to send him to St. Louis the boy might go into shock and die en route. Mr. Taylor originally would not sign the surgical consent form presented by Dr. Morgan. Dr. Morgan knew that Vivian Wells had legal custody of Jerry and he consulted with the hospital administrator and the hospital attorney regarding the consent question. Dr. Morgan did not want to wait for Vivian Wells and he eventually persuaded Mr. Taylor to sign the consent form. Mr. Taylor would not have signed the consent form if he had been told that amputation could be postponed or that there were feasible alternatives to cutting off the leg immediately. Mr. Taylor did sign the consent form at approximately 9:45 p.m., and at 10:25 p.m. Jerry Taylor was taken from the emergency room to the operating room.

Jerry's mother, Vivian Wells, was en route between Manhattan, Illinois, and her weekend home in Marion in accordance with her usual practice. She learned of the accident upon her arrival in the Marion area and rushed to the hospital, but Dr. Morgan was already performing the amputation. She never consented to the amputation.

The evidence from the defendant's standpoint on the informed consent question reveals the following. Dr. Morgan tried to locate Vivian Wells before operating on her son. Several calls were made to the mother's home in northern Illinois. The Williamson County Sheriff's Department attempted to contact the police in northern Illinois to see if they could help locate the plaintiff's mother, but no one could locate her. The defendant was of the opinion that Jerry Taylor needed definite treatment at that time and obtained permission to render that treatment from Robert Taylor, his father. As has already been noted, the plaintiff was actually living with his father at the time of the accident.

Based on this evidence the trial court gave the two instructions on the informed consent issue set forth below. The second of these was numbered Defendants' Instruction No. 16 and was given over plaintiff's objection:

"Ordinarily, a surgeon must obtain the consent of a patient before operating on him. However, if the patient is a minor then the surgeon is excused from obtaining the consent of the patient to the operation. In that event, he must obtain consent from a person authorized to consent to the operation, unless it is impractical to obtain consent because of an emergency or because delay would endanger the patient's health.

* * * * * *

Any parent may consent to the performance of a medical or a surgical procedure upon his or her child by a physician licensed to practice medicine and surgery."

With regard to the mother's claim for medical expenses upon which the trial court directed a verdict in the defendant's favor, the evidence revealed the following. Vivian Wells testified that she paid for the continuing medical treatment after surgery, that the second prothesis cost about $2,000 or more, and that she paid for some of it, but the remainder was never paid for. On cross-examination, however, she indicated that she could not tell how much she actually paid for the first prothesis and could only give a rough estimate of the cost of the second prothesis. Further, she could not recall at all how much Dr. Greenwalt, the subsequent treating doctor, had charged for the work he did. Jerry Taylor testified that the total cost for the two protheses "and everything" was $13,900 and of that sum $12,700 had been paid. Based on this evidence the trial court directed a verdict in the defendants' favor on the mother's claim for medical expenses.

Plaintiff argues that the trial court was in error in directing a verdict since there was evidence from which a jury could have determined the amount of the medical bills sustained by the plaintiff as a result of the conduct of the defendant. The defendant first argues that the issue is academic because the jury found that the defendant was not liable; therefore, no verdict for Vivian Wells for medical expenses could stand in any event. Without addressing that contention we find that the defendant is correct that the plaintiff failed to prove that she paid or was liable to pay a specific amount that was directly attributable to defendant's alleged malpractice. While the testimony of Jerry Taylor and his mother taken together might have presented a jury question as to the total amount of bills incurred for all of his treatment, and the fact that Vivian Wells paid all or most of them, there is no delineation in the record between the amount of the bills incurred as a result of the original injury and the amount of the bills incurred as a result of the defendant's alleged misconduct. There is no way that the jury could have appropriately assessed the damages attributable to the defendant's alleged misconduct if that issue had been presented to them. The plaintiff has the burden of establishing a reasonable basis for computation of damages. (Kohlmeier v. Shelter Insurance Co. (1988), 170 Ill.App.3d 643, 654, 121 Ill.Dec. 288, 295, 525 N.E.2d 94 102.) An...