{ "id": 8499269, "name": "FRANK LOWNEY, Plaintiff-Appellant, v. MARY JO ARCIOM, Defendant-Appellee", "name_abbreviation": "Lowney v. Arciom", "decision_date": "1992-07-28", "docket_number": "No. 3\u201491\u20140356", "first_page": "715", "last_page": "718", "citations": [ { "type": "official", "cite": "232 Ill. App. 3d 715" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "586 N.E.2d 1314", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 727", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252653 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0727-01" ] }, { "cite": "481 N.E.2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 766", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636662 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0766-01" ] }, { "cite": "104 Cal. Rptr. 505", "category": "reporters:state", "reporter": "Cal. Rptr.", "pin_cites": [ { "page": "515-16" } ], "opinion_index": 0 }, { "cite": "502 P.2d 1", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "11-12" } ], "opinion_index": 0 }, { "cite": "8 Cal. 3d 229", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2321912 ], "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/8/0229-01" ] }, { "cite": "455 N.E.2d 294", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 766", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5662163 ], "weight": 2, "pin_cites": [ { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0766-01" ] } ], "analysis": { "cardinality": 421, "char_count": 7255, "ocr_confidence": 0.834, "pagerank": { "raw": 1.1830380936671053e-07, "percentile": 0.589048434870141 }, "sha256": "2203f495d5c4e4413bdd244a749fddf94f00b5287438f7d4e3bb6c10165b7a83", "simhash": "1:b925d1ac7fc4a557", "word_count": 1171 }, "last_updated": "2023-07-14T16:53:50.540896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GORMAN and HAASE, JJ., concur." ], "parties": [ "FRANK LOWNEY, Plaintiff-Appellant, v. MARY JO ARCIOM, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE BARRY\ndelivered the opinion of the court:\nThe plaintiff, Frank Lowney, brought a personal injury action against the defendant, Dr. Mary Jo Arciom, for injuries he suffered following a chiropractic procedure the defendant performed upon him. The jury found in favor of the defendant. The plaintiff appeals.\nInitially, we note that the record on appeal is not complete. The plaintiff has not provided this court with transcripts of all of the witnesses who apparently testified below, including the plaintiff and the defendant. However, we find that enough of the record has been provided for this court to decide the merits of the plaintiff\u2019s claim on appeal.\nBased on the record provided, it appears that the plaintiff consulted the defendant because he had been experiencing neck pain. The defendant performed a chiropractic adjustment to the plaintiffs neck, which the plaintiff claimed caused him great pain. Three days after the chiropractic treatment, the plaintiff suffered a stroke. The deposition of Dr. Jeffrey A. Bounds, who treated the plaintiff following the stroke, reveals Bounds\u2019 opinion that there was a 75% to 85% likelihood that the chiropractic treatment caused the stroke by injuring the vertebral artery.\nDuring his deposition, Dr. Charles E. Duvall, Jr., a chiropractor and the plaintiff\u2019s expert, was asked by defense counsel for every opinion he formulated regarding the care the defendant gave the plaintiff. Essentially, Duvall responded that the plaintiff should not have received the chiropractic treatment at all. During his deposition, Duvall never testified concerning the defendant\u2019s alleged failure to warn the plaintiff about any risks associated with the procedure she performed. However, during his direct testimony at trial, Duvall testified over the defendant\u2019s objection that the defendant should have informed the plaintiff of the risks of the procedure. The plaintiff testified that the defendant never warned him of any risk associated with the chiropractic procedure she performed on him.\nOne of the plaintiff\u2019s theories for recovery was that the defendant was negligent in both failing to warn the plaintiff of the possible risks involved in the procedure and in failing to obtain his informed consent. To that end, the plaintiff requested that the jury be instructed on the issue of the duty to warn. The trial court refused the plaintiff\u2019s tendered instruction.\nOn appeal, the plaintiff contends that the trial court erred in not allowing the jury to be instructed on the issue of the duty to warn. He urges this court to ignore or overrule the well-established rule enunciated in St. Gemme v. Tomlin (1983), 118 Ill. App. 3d 766, 455 N.E.2d 294.\nThe St. Gemme court addressed the issue of whether the plaintiff had met her burden of establishing that the lack of a warning proximately caused her injury. The court held that it was incumbent upon the plaintiff to prove by objective evidence that a reasonable person, in possession of the allegedly omitted information, would have rejected the treatment in question. The St. Gemme court noted that it agreed with the following rationale of the supreme court of California:\n\u201cThe patient-plaintiff may testify on this subject but the issue extends beyond his credibility. Since at the time of trial the un-communicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the patient\u2019s bitterness and disillusionment. Thus an objective test is preferable: i.e., what would a prudent person in the patient\u2019s position have decided if adequately informed of all significant perils.\u201d Cobbs v. Grant (1972), 8 Cal. 3d 229, 245, 502 P.2d 1, 11-12, 104 Cal. Rptr. 505, 515-16, quoted with approval in St. Gemme, 118 Ill. App. 3d at 769, 455 N.E.2d at 296.\nWe find the above-noted reasoning to be sound and find unpersuasive the plaintiff\u2019s arguments to the contrary. In this regard, we note that the plaintiff has cited no authority for ignoring the well-established principle enunciated in St. Gemme. Therefore, we will follow the rule as stated in St. Gemme in the instant case.\nAt the conference on jury instructions, the trial court determined that the plaintiff had not met the \u201cobjective requirement\u201d of presenting testimony that a prudent person in the plaintiff\u2019s position would have refused the chiropractic procedure had he been informed of all the risks. The record presented to this court on appeal confirms the trial court\u2019s assessment. Furthermore, on appeal the plaintiff does not argue that any such testimony was presented below. Therefore, the trial court properly refused the plaintiff\u2019s tendered jury instruction concerning the duty to warn. Although a party has a right to have a jury instructed on his theory of the case, provided there is sufficient evidence for the instruction, it is reversible error for a court to instruct a jury on an issue that is not supported by the evidence. In re Estate of Loesch (1985), 134 Ill. App. 3d 766, 481 N.E.2d 32.\nWe note also that Dr. Duvall\u2019s direct testimony at trial concerning the defendant\u2019s failure to warn the plaintiff of the risks of the procedure was admitted in violation of Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)). That rule provides:\n\u201cTo the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.\u201d 134 Ill. 2d R. 220(d).\nTestimony which goes beyond the scope of facts and opinions disclosed in discovery is properly excluded. F.L. Walz, Inc. v. Hobart Corp. (1992), 224 Ill. App. 3d 727, 586 N.E.2d 1314.\nHere, although Duvall was asked during his deposition to give every opinion he had concerning the defendant\u2019s treatment of the plaintiff, Duvall did not mention anything about a duty to warn. Duvall\u2019s testimony in this vein at trial was therefore improperly admitted in violation of Supreme Court Rule 220(d).\nIn sum, since no testimony was introduced which satisfied the requirements of St. Gemme, and because Duvall\u2019s testimony concerning the duty to warn was admitted in violation of Supreme Court Rule 220(d), we hold that the trial court properly refused the plaintiff\u2019s tendered instruction on informed consent.\nFor the foregoing reasons, the judgment of the circuit court of Kankakee County is affirmed.\nAffirmed.\nGORMAN and HAASE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BARRY" } ], "attorneys": [ "William E. Hourigan, of Law Offices of William E. Hourigan, of Bloom-ington, for appellant.", "Robert Marc Chemers and Scott 0. Reed, both of Pretzel & Stouffer, Chartered, of Chicago, for appellee." ], "corrections": "", "head_matter": "FRANK LOWNEY, Plaintiff-Appellant, v. MARY JO ARCIOM, Defendant-Appellee.\nThird District\nNo. 3\u201491\u20140356\nOpinion filed July 28, 1992.\nWilliam E. Hourigan, of Law Offices of William E. Hourigan, of Bloom-ington, for appellant.\nRobert Marc Chemers and Scott 0. Reed, both of Pretzel & Stouffer, Chartered, of Chicago, for appellee." }, "file_name": "0715-01", "first_page_order": 735, "last_page_order": 738 }