Witherell v. Weimer

• Decision Date: 05 October 1987
• Docket Number: No. 64440,64440
• Citation: 113 Ill.Dec. 259,118 Ill.2d 321,515 N.E.2d 68
• Parties: , 113 Ill.Dec. 259 Betty WITHERELL, Appellant, v. James I. WEIMER, Appellee.
• Court: Illinois Supreme Court

Page 68

515 N.E.2d 68

118 Ill.2d 321, 113 Ill.Dec. 259

Betty WITHERELL, Appellant, v. James I. WEIMER, Appellee.

No. 64440.

Supreme Court of Illinois.

Oct. 5, 1987.

Rehearing Denied Dec. 1, 1987.

James L. Hafele, P.C., James L. Hafele, Peoria, Thomas H. Bleakley, P.C., Thomas H. Bleakley, Detroit, Mich., for Betty Witherell, plaintiff-appellant and cross-appellee.

Heyl, Royster, Voelker & Allen, Peoria, for James I. Weimer, M.D., defendant-appellee and cross-appellant; Lyle W. Allen, David R. Sinn, Roger R. Clayton, Karen L. Kendall, of counsel.

Justice SIMON delivered the opinion of the court:

In Witherell v. Weimer (1981), 85 Ill.2d 146, 52 Ill.Dec. 6, 421 N.E.2d 869 (Witherell I ), this court held that the circuit court had improperly dismissed plaintiff Betty Witherell's malpractice complaint as not timely filed. The case was remanded to the circuit court for further proceedings on both the statute of limitations and the merits. After a trial in the circuit court of Tazewell County, the jury returned a verdict for the plaintiff, establishing her damages as $500,000, but reducing the award by $200,000 for her 40% comparative negligence. The appellate court, with one justice dissenting, reversed and ordered a new trial (148 Ill.App.3d 32, 101 Ill.Dec. 679, 499 N.E.2d 46), and we allowed the plaintiff's petition for leave to appeal (103 Ill.2d R. 315). Defendant, Dr. James Weimer, did not file a petition for leave to appeal, but raises numerous grounds for cross-relief. (See 87 Ill.2d R. 318.) Dr. Weimer's former partner, Dr. Russell Taubert, was also a defendant at trial but died during the pendency of these proceedings. The plaintiff did not move to substitute a representative of his estate "within 90 days after the death [was] suggested of record" (Ill.Rev.Stat.1985, ch. 110, par. 2-1008(b)), and this court therefore dismissed the appeal as to Dr. Taubert.

The voluminous evidence introduced at trial concerning the plaintiff's medical history is summarized in the opinion of the appellate court. We will not restate the evidence here except as necessary for resolution of the issues addressed. Betty Witherell was treated by Dr. Weimer and his partner from 1963 until 1976. Under prescriptions from them, she took oral contraceptives containing estrogen from 1966 to 1974 with the exception of a short period in 1972. The defendant and his partner testified they had not authorized refills for that period, but the plaintiff's evidence showed that the prescription had been repeatedly renewed on the authorization of those physicians. For treatment of an ovarian deficiency the defendant also gave plaintiff some 21 estrogen injections in his office, most of them between 1970 and 1972. From 1972 until 1976 plaintiff gave herself estrogen injections, which Dr. Weimer had also prescribed, at home every week.

Plaintiff has suffered from a number of ailments, including bouts of thrombophlebitis, a condition of the vein marked by inflammation of its wall and blood clots (4 Schmidt, Attorneys' Dictionary of Medicine T-70 (1986)). She was hospitalized for this condition in 1967 and 1972. In 1976 the plaintiff was again hospitalized, but the defendant diagnosed only muscle soreness and nerve pain. Shortly thereafter she was diagnosed by another physician as suffering from post-phlebitic syndrome.

A jury instruction set forth the plaintiff's claim that the doctors were negligent in that they:

"a. Did not properly interpret, diagnose and treat the signs and symptoms of the plaintiff's condition of thrombo-phlebitis in April and May of 1976.

b. Did not timely recognize the presence of thrombophlebitis in plaintiff's legs in April and May of 1976.

c. Failed to prescribe drugs which were appropriate for the plaintiff, given her condition.

d. Continued to allow her to take birth control pills and estrogen notwithstanding that they knew that the plaintiff had thrombophlebitis or a past history of thrombophlebitis."

According to the plaintiff, the defendant's negligence resulted in serious and permanent injury to her. She testified that her legs are very painful, she has to use a cane or wheelchair to get around, she cannot stand for any period of time without suffering from leg swelling, and she has been unable to work or to participate in recreational activities. The defendant's explanation was that the plaintiff's illness resulted from an earlier trauma and from long periods of immobility and inactivity. Defendant also sought to portray her problems as largely psychological in origin.

In addition to the questions of liability and damages, evidence was presented on whether the plaintiff failed to file her complaint within two years of discovering her cause of action and whether, even if the complaint was otherwise time-barred, the defendant's conduct equitably estopped him from asserting the statute of limitations defense. The jury returned a general verdict for the plaintiff. The trial judge entered judgment on the verdict and refused to subtract plaintiff's "collateral source" recovery, declaring section 2-1205 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-1205) unconstitutional.

The appellate court held that the trial judge's failure to place the burden of proving plaintiff's comparative negligence on the defendant was error. Rather than simply reversing the deduction for the plaintiff's negligence, however, the appellate court determined that equity required a new trial. The appellate court also concluded sua sponte that the jury instructions did not require the jury to find that the defendant's negligence proximately caused the plaintiff's injury. In addition to these reasons for reversing, the appellate court ruled that the issue of equitable estoppel had already been decided in Witherell I and that this court's decision in favor of the plaintiff on the limitations bar was res judicata. Finally, the appellate court held that the "collateral source" statute was constitutional. In light of our ruling in Bernier v. Burris (1986), 113 Ill.2d 219, 100 Ill.Dec. 585, 497 N.E.2d 763, upholding that statute, the plaintiff now agrees that any award is subject to set-off in the amount of $41,052.77.

The plaintiff maintains in this court, as she did below, that her award should not have been reduced for any negligence on her part. We first address, however, several of the more than 30 issues the defendant raises by way of cross-relief in support of his contention that the appellate court correctly required a new trial.

I. LIMITATIONS AND ESTOPPEL

The statute of limitations bars actions "brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known * * * of the existence of the injury." (Ill.Rev.Stat.1977, ch. 83, § 22.1.) Initially, the trial court had held that plaintiff's cause of action was barred by the statute of limitations. Concluding on the record as it then existed--the pleadings, affidavits and answers to interrogatories--that the action would be barred unless the defendant was equitably estopped by his conduct from asserting the defense, this court ruled in Witherell I that the plaintiff was "entitled to an opportunity to prove the allegations upon which the estoppel and her cause of action are based." (Witherell v. Weimer (1981), 85 Ill.2d 146, 160, 52 Ill.Dec. 6, 421 N.E.2d 869.) On remand, the jury was instructed on both the statute of limitations and equitable estoppel and returned a general verdict for the plaintiff. In the appellate court, as here, the defendant argued that the trial judge erred in failing to order separate trials as to the statute of limitations and liability issues and that, in any event, the verdict was against the manifest weight of the evidence.

The appellate court did not address these questions because of its conclusion that Witherell I had already determined that the defendant was equitably estopped from asserting the limitations bar. Although there is some language in Witherell I which, taken out of context, may have suggested this result, this court held only that dismissal was improper and that the plaintiff should have a chance to prove the basis for the estoppel. (85 Ill.2d 146, 160, 52 Ill.Dec. 6, 421 N.E.2d 869.) The parties agree that the appellate court erred in finding this question precluded by prior adjudication.

Defendant contends, though, that he was entitled to a bifurcated trial with separate juries on the limitations and liability questions. The defendant correctly notes that his position on the statute of limitations was inconsistent with his posture on liability. To prove the defense, the defendant had to show that, more than two years before plaintiff's complaint was filed on January 4, 1978, she knew or should have known of her injury and either knew or should have known that it was wrongfully caused. (Witherell v. Weimer (1981), 85 Ill.2d 146, 156, 52 Ill.Dec. 6, 421 N.E.2d 869.) Of course, to establish that the plaintiff should have known that the injury was wrongful in origin would practically amount to a concession by the defendant on the questions of both his negligence and causation. According to the defendant it was manifestly unfair to place him in this no-win position that made it impossible to effectively argue the statute of limitations.

We know of no principle of law requiring a bifurcated trial. It was the defendant's insistence on maintaining two lines of defense in this case that put him in this situation, and the trial judge was not obliged to take unreasonable measures to increase the defendant's ultimate chances of success. Defendant's request for a bifurcated trial was properly denied.

The defendant next contends that the jury's findings--that the action was not barred by the statute of limitations or that the defendant was estopped from asserting the bar--were against the manifest weight of the evidence. Because the defendant did not...