{ "id": 3649898, "name": "RUTH ANN MYERS et al., Plaintiffs-Appellants, v. L. E. WILLIAMS, Defendant-Appellee", "name_abbreviation": "Myers v. Williams", "decision_date": "1987-09-24", "docket_number": "No. 5\u201486\u20140206", "first_page": "707", "last_page": "714", "citations": [ { "type": "official", "cite": "160 Ill. App. 3d 707" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "492 N.E.2d 1364", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1379" } ], "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 500", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5668183 ], "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0500-01" ] }, { "cite": "367 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1285" } ], "opinion_index": 0 }, { "cite": "67 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812613 ], "year": 1984, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0381-01" ] }, { "cite": "98 N.E. 281", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1984, "pin_cites": [ { "page": "283" } ], "opinion_index": 0 }, { "cite": "254 Ill. 167", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4687805 ], "year": 1984, "pin_cites": [ { "page": "173-74" } ], "opinion_index": 0, "case_paths": [ "/ill/254/0167-01" ] }, { "cite": "196 N.E. 186", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1984, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "860 Ill. 278", "category": "reporters:state", "reporter": "Ill.", "year": 1984, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "401 N.E.2d 1196", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1200" } ], "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 894", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226954 ], "pin_cites": [ { "page": "898" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0894-01" ] }, { "cite": "382 N.E.2d 1201", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1205" } ], "opinion_index": 0 }, { "cite": "73 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441312 ], "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0090-01" ] } ], "analysis": { "cardinality": 765, "char_count": 16191, "ocr_confidence": 0.754, "pagerank": { "raw": 7.808422864915851e-08, "percentile": 0.4575355551617102 }, "sha256": "dd488dad67a3e8c26ef93c10734944900d643b4970ca7d970e887bc9208ce235", "simhash": "1:d6609bbfdfa728ca", "word_count": 2630 }, "last_updated": "2023-07-14T16:53:05.010141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RUTH ANN MYERS et al., Plaintiffs-Appellants, v. L. E. WILLIAMS, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE KASSERMAN\ndelivered the opinion of the court:\nThe circuit court of Marion County entered judgment upon a jury verdict in favor of defendant, Dr. L. E. Williams, and against plaintiffs, Ruth Ann and Larry Ray Myers, on plaintiffs\u2019 malpractice claim. Plaintiffs have perfected the instant appeal. The facts are as follows.\nOn August 24, 1983, at approximately 11 a.m., plaintiff Ruth Ann Myers, a cleaning lady, \u201cfelt something pull in Pier] back\u201d when she picked up the end of a couch while cleaning a client\u2019s house. She finished the cleaning job, went home, did her own housework and prepared dinner for her husband and herself. Since her back was still bothering her, Mrs. Myers called defendant, a chiropractor, at approximately 5 p.m. for an appointment. Mrs. Myers and her daughter went to defendant\u2019s office shortly thereafter. Mrs. Myers testified that she had no difficulties with either leg at that time.\nBetween 5 p.m. and 6 p.m., Mrs. Myers arrived at defendant\u2019s office. After completing a form and having X rays taken of her spine, she was ushered into the treatment room, where defendant instructed her to lie face down on a padded table. Mrs. Myers testified that defendant performed \u201csome kind of adjustments\u201d while she was lying face down and that she felt intense pain radiating from her back down into her legs when she tried to roll over onto her side. Mrs. Myers testified that after defendant helped her to her side, he performed \u201csome kind of adjustments\u201d upon her back and her legs and that she continued to experience the same kind of pain. After defendant was finished, he helped Mrs. Myers off the table and guided her to her car; defendant walked backwards facing Mrs. Myers, his arms and hers locked together. She made an appointment with defendant for 8 o\u2019clock the following morning.\nMrs. Myers testified that when she got home she needed assistance walking to the back steps. At the back steps she could not lift her legs, so her husband carried her up the steps, into the house and laid her down on a sofa where she spent the night. Although Mrs. Myers was able to change her clothing the following morning, she could not take a bath.\nOn August 25, 1983, Mrs. Myers, with the aid of crutches, walked from her car to defendant\u2019s treatment room for her appointment. After defendant helped place her on the examining table, Mrs. Myers testified that defendant \u201c[put] his hands on my back\u201d and that the pressure he exerted while doing so caused pain so intense that defendant had to stop. Defendant then rubbed something on Mrs. Myers\u2019 back and helped her off the table. Mrs. Myers thereafter left defendant\u2019s office on crutches with assistance from her son. Mrs. Myers made an appointment with defendant for the following day.\nMrs. Myers testified that when she arrived at her home, she walked with crutches from the car to the sofa, with assistance from her son in getting up the back steps. With the exception of going to the restroom, she stayed on the sofa until the following day. Mrs. Myers testified that during this time she felt excruciating pain emanating from her lower back into both legs, especially the left leg.\nOn August 26, 1983, Mrs. Myers, once again with the aid of crutches, walked from her car to the defendant's treatment room for her appointment. Mrs. Myers testified that after defendant helped her onto the examining table, he showed her a tool which he was going to use to exert pressure upon her back. During this treatment, Mrs. Myers continued experiencing the same pain. This was the last treatment Mrs. Myers received from the defendant.\nMrs. Myers testified that after this treatment she went home and lay on the sofa, where she remained for approximately 12 days. After this period, her condition improved and she was able to resume her occupation. However, she continued to feel pain radiating from her back into her lower legs. While cleaning a house on April 13, 1984, Mrs. Myers once again experienced intense back and leg pain. After driving home she called her husband, who took her to the emergency room at St. Mary\u2019s Hospital in Centraba, Illinois. Mrs. Myers testified that the emergency room physician took X rays and performed a CT scan, then gave her injections and a prescription for Demerol. This physician told Mrs. Myers that she should obtain further medical treatment from a specialist.\nOn April 17, 1984, Mrs. Myers was examined by Dr. John Kenney, an orthopedic surgeon. Dr. Kenney obtained a history, conducted a physical examination, and reviewed X rays, a lumbar myleogram and a CT scan and concluded that Mrs. Myers had an acute herniated disc at the L5-S1 level. On April 23, 1984, Dr. Kenney performed surgery on Mrs. Myers\u2019 lower back and removed a large herniated disc at the L5-S1 level. Dr. Kenney testified during an evidence deposition that the herniated disc could have caused the back pain Mrs. Myers suffered.\nDefendant could not independently recall his examination and treatment of Mrs. Myers. Relying upon the notes he made while examining and treating Mrs. Myers, defendant testified as follows as to how he probably treated her.\nWhen Mrs. Myers arrived for her first visit, defendant took three X rays of her lumbar spine and pelvis. Although defendant found no fractures, dislocations, or bone disease processes in these X rays, he noted \u201ca noticeable flattening of the lumbar spine\u201d and \u201ca lot of flatulence in the colon.\u201d Defendant then palpated Mrs. Myers\u2019 lower back to detect the presence of pain, swelling, or muscle spasm. After doing so, defendant concluded that Mrs. Myers had \u201can acute sacrolumbar sprain with subluxation [i.e., muscle spasms caused by misalignment of the spine] and a right pelvic deficiency.\u201d Mrs. Myers was given ultrasound therapy and her right innominate bone was treated with an activator instrument (i.e., an instrument held against the spine which exerts a light thrust upon a subluxated structure) in an attempt to get the bone to return to its normal position. Defendant could not recall assisting Mrs. Myers to her car after this treatment.\nWhile testifying as an adverse witness during plaintiffs\u2019 case in chief, defendant admitted that, as shown by his billing, his treatment of Mrs. Myers was the same on August 25, 1983, as it was the previous day, August 24. The identical treatment bills for these dates were broken down as follows: $6 for \u201cphysical medicine treatment to one area; hot or cold packs\u201d and $20 for \u201ctraction, manual,\u201d a total of $26 for treatment on each day. Defendant admitted that use of an activator instrument is not manual traction and that manual traction is not manipulation. While testifying during his case in chief, defendant admitted that on August 25, 1983, he made \u201ca right PD adjustment to [Mrs. Myers\u2019] right sacroiliac joint and the right innominate bone\u201d with an activator instrument. This admission was based upon an exhibit plaintiffs admitted during their case in chief (plaintiffs\u2019 exhibit 18, entitled \u201cPatient Progress Report\u201d). Although defendant recalled using an activator instrument during the August 25 treatment, plaintiffs\u2019 exhibit 18 makes no reference to use of an activator instrument until the treatment rendered the following day.\nOn August 26, 1983, defendant treated Mrs. Myers\u2019 lower back with ultrasound, hot hydrocular packs and ice packs, and a \u201cright PD again which is an activator technique.\u201d Although defendant denied using hands-on manipulation on this date, his billing for treatment on this date as shown in plaintiffs\u2019 exhibit 23 was $6 for \u201cphysical medicine treatment to one area; hot or cold packs\u201d and $18 for \u201cmanipulation by doctor.\u201d Mrs. Myers did not show up for an appointment she made with defendant for treatment the following day. Defendant denied using the \u201cside roll\u201d technique (i.e., patient lies on his side and technician brings leg up into chest area while contacting the specific vertebra he intends to adjust) during any of Mrs. Myers\u2019 three treatments. Defendant neither conducted nor recommended orthopedic or neurological examinations for Mrs. Myers.\nDr. Malcom Haber, a retired chiropractor, testified that while chiropractic is very effective in treating low back injuries, a chiropractor must differentiate between conditions suitable for chiropractic treatment and those suitable for medical treatment. In Dr. Haber\u2019s opinion, defendant deviated from acceptable community chiropractic standards (1) by failing to perform an orthopedic or neurological examination upon Mrs. Myers prior to first treatment, (2) by failing to refer Mrs. Myers to an orthopedist or a neurologist when she experienced pain during the first treatment, and (3) by failing to keep a sufficiently detailed record of his treatment of Mrs. Myers. Dr. Haber concluded that defendant\u2019s failure to perform orthopedic or neurological tests prior to manipulation \u201cset the stage for the operation in the future [i.e., removal of the herniated disc] by rupturing or causing the disc between the vertebrae to bulge.\u201d\nOn cross-examination Dr. Haber stated that he relied upon Mrs. Myers\u2019 testimony regarding the manipulative techniques defendant allegedly performed upon her because she \u201cwould [not] be able to describe it so vividly had it not happened.\u201d Dr. Haber further testified that the use of an activator instrument would not disable a patient.\nDr. Marvin Engel, a chiropractor who treated Mrs. Myers for lower back pain on January 24, 1983, testified that he relieved some of the nerve pressure on her spine by \u201c[turning Mrs. Myers] on her side and rotating her pelvis toward me.\u201d Dr. Engel further testified that while palpation of one\u2019s spine to detect muscle rigidity is not chiropractic manipulation, the treatment he performed upon Mrs. Myers was.\nPlaintiffs raise two issues on appeal: (1) whether it was reversible error for the trial court to refuse to allow into evidence a hypothetical question propounded to Dr. Kenney and Dr. Kenney\u2019s answers thereto, and (2) whether defendant\u2019s reference during closing argument to facts allegedly not in evidence was so prejudicial as to require reversal.\nThe disputed hypothetical question propounded by plaintiffs to Dr. Kenney during Dr. Kenney\u2019s evidence deposition was used to solicit his opinion as to whether defendant\u2019s treatment of Mrs. Myers on August 24 and August 25, 1983, caused or contributed to causing the herniated disc. In pertinent part, this hypothetical question asked Dr. Kenney to assume that defendant performed a \u201cmanipulative procedure\u201d upon Mrs. Myers\u2019 lower back during her first (August 24) and second (August 25) treatments. On the basis of these assumptions, Dr. Kenney testified that to a reasonable degree of medical certainty, defendant\u2019s treatments either caused or contributed to Mrs. Myers\u2019 herniated disc. The defendant\u2019s timely objection to this hypothetical and the follow-up questions was that plaintiffs had not established that defendant had performed a \u201cmanipulative procedure\u201d upon Mrs. Myers during the second treatment. The trial court sustained defendant\u2019s objection and struck the entire hypothetical and the follow-up questions. The basis for the trial court\u2019s ruling was that plaintiffs failed to establish that the placing of hands upon Mrs. Myers\u2019 back during the second treatment was a \u201cmanipulative procedure\u201d as defined by the chiropractic profession.\nTo assist the finder of fact, expert witnesses are allowed to give their opinions on scientific matters beyond the ordinary person\u2019s knowledge. (Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 99, 382 N.E.2d 1201, 1205.) They may answer hypothetical questions, but to keep their opinions from being mere conjecture, the hypothetical must be based on facts in evidence. It is the responsibility of the trial court to determine whether an assumed fact in a hypothetical question has a basis in the evidence. (Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 898, 401 N.E.2d 1196, 1200.) When the admissibility of evidence depends upon other evidence, the court has discretion to admit it subject to being \u201cconnected up.\u201d (See Mitchell v. Sherman E. McEwen Associates, Inc. (1985), 860 Ill. 278, 284, 196 N.E. 186, 188; see also Cleary and Graham, Handbook on Illinois Evidence sec. 611.1, p. 370 (4th ed. 1984).) Evidence admitted upon an assurance that it will later be connected up should be excluded upon failure to establish the connection. (See People v. Smith (1912), 254 Ill. 167, 173-74, 98 N.E. 281, 283; see also Cleary and Graham, Handbook of Illinois Evidence sec. 611.1, p. 370-71 (4th ed. 1984).) Furthermore, it is well established that the entire matter of the order of presentation of evidence and mode of witness examination must and does rest largely in the discretion of the trial court. See People v. Waller (1977), 67 Ill. 2d 381, 387, 367 N.E.2d 1283, 1285; see also Cleary and Graham, Handbook of Illinois Evidence sec. 611.1, p. 371 (4th ed. 1984).\nThe record in the case at bar establishes that on December 31, 1986, 14 days prior to the start of the trial, the trial court informed plaintiff that it was going to reserve its ruling upon the admissibility of the challenged hypothetical question pending the admission of evidence connecting it to the facts of the case. After reviewing the record, we conclude that such connection was not established prior to the trial court\u2019s ruling denying the admission of the challenged hypothetical question, nor was such connection ever made during plaintiff\u2019s case in chief. Although the evidence admitted during defendant\u2019s case in chief tends to establish such connection (i.e., the admission by defendant that he treated plaintiff with an activator instrument), we must conclude under these circumstances that the trial court properly denied the admission of the challenged hypothetical question. Furthermore, we note that Dr. Kenney\u2019s answer to the follow-up question relating to the sudden onset of excruciating pain was that such sudden onset was probably precipitated by \u201cmanipulative procedures.\u201d Since the answer refers to \u201cprocedures\u201d rather than one \u201cprocedure,\u201d the exclusion of the answer to this follow-up question was not an abuse of discretion.\nThe final issue raised by plaintiffs in the instant appeal is that the trial court erred in permitting counsel for defendant to refer to facts not in evidence during closing argument. Specifically, plaintiffs object to defendant\u2019s statement in closing argument that Dr. Engel had, prior to defendant\u2019s treatment of Mrs. Myers, performed a \u201cside roll\u201d technique upon Mrs. Myers and that the treatment Mrs. Myers alleged she received from defendant was the very type of treatment she received from Dr. Engel. Defendant testified that the \u201cside roll\u201d is a leverage move for adjusting the spine or pelvis which is performed by laying a patient on his side, bending the patient\u2019s leg up into the chest or abdominal area, and using the patient\u2019s own muscles as leverage to make the desired adjustment. Dr. Engel testified that he relieved nerve pressure on Mrs. Myers\u2019 spine by turning her on her side and rotating her pelvis toward him. Mrs. Myers testified that defendant performed \u201csome kind of adjustments\u201d upon her back and her legs while she was lying on her side.\nDuring closing argument, counsel is permitted broad latitude to draw reasonable inferences and conclusions from the evidence. The scope of closing argument is within the sound discretion of the trial court. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 519, 492 N.E.2d 1364, 1379.) After reviewing the record in the case at bar, we conclude that the challenged inferences defendant drew in closing argument were reasonable. Accordingly, the judgment of the circuit court of Marion County is affirmed.\nAffirmed.\nEARNS, P.J., and WELCH, J., concur.", "type": "majority", "author": "JUSTICE KASSERMAN" } ], "attorneys": [ "Hoagland, Maucker, Bernard & Almeter, of Alton (Stephen J. Maassen, of counsel), for appellants.", "John P. Ewart and Paul R. Lynch, both of Craig and Craig, of Mattoon, for appellee." ], "corrections": "", "head_matter": "RUTH ANN MYERS et al., Plaintiffs-Appellants, v. L. E. WILLIAMS, Defendant-Appellee.\nFifth District\nNo. 5\u201486\u20140206\nOpinion filed September 24, 1987.\nHoagland, Maucker, Bernard & Almeter, of Alton (Stephen J. Maassen, of counsel), for appellants.\nJohn P. Ewart and Paul R. Lynch, both of Craig and Craig, of Mattoon, for appellee." }, "file_name": "0707-01", "first_page_order": 729, "last_page_order": 736 }