{ "id": 910192, "name": "SERAFINO PANTALEO, Special Adm'r of the Estate of Joseph Pantaleo, Deceased, Plaintiff-Appellee and Cross-Appellant, v. OUR LADY OF THE RESURRECTION MEDICAL CENTER, f/k/a John F. Kennedy Medical Center, et al., Defendants-Appellants and Cross-Appellees", "name_abbreviation": "Pantaleo v. Our Lady of the Resurrection Medical Center", "decision_date": "1998-06-02", "docket_number": "No. 1\u201497\u20140922", "first_page": "266", "last_page": "283", "citations": [ { "type": "official", "cite": "297 Ill. App. 3d 266" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "601 N.E.2d 927", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "937" } ], "opinion_index": 0 }, { "cite": "235 Ill. App. 3d 799", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783590 ], "year": 1992, "pin_cites": [ { "page": "816" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0799-01" ] }, { "cite": "377 N.E.2d 1054", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3346173 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0365-01" ] }, { "cite": "558 N.E.2d 318", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "322" }, { "page": "322" } ], "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 908", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2463079 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "915" }, { "page": "915" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0908-01" ] }, { "cite": "522 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 270", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3513102 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0270-01" ] }, { "cite": "658 N.E.2d 1208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927603 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0483-01" ] }, { "cite": "515 N.E.2d 298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 742", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3468015 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0742-01" ] }, { "cite": "568 N.E.2d 1373", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1376" } ], "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 806", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2535108 ], "year": 1991, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0806-01" ] }, { "cite": "686 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "622" }, { "page": "620" }, { "page": "620" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725112 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "589" }, { "page": "585" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0580-01" ] }, { "cite": "612 N.E.2d 969", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "973" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108040 ], "year": 1993, "pin_cites": [ { "page": "945" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0940-01" ] }, { "cite": "579 N.E.2d 1105", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1111" } ], "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 766", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5798157 ], "year": 1991, "pin_cites": [ { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0766-01" ] }, { "cite": "631 N.E.2d 322", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "333" }, { "page": "333" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 133", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2872466 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "150" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0133-01" ] }, { "cite": "650 N.E.2d 985", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "991" } ], "opinion_index": 0 }, { "cite": "165 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483571 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0150-01" ] }, { "cite": "668 N.E.2d 8", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "where the court found that $4,400,000 in pain and suffering damages was not excessive in a survival action or against the manifest weight of the evidence" } ], "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159547 ], "year": 1996, "pin_cites": [ { "parenthetical": "where the court found that $4,400,000 in pain and suffering damages was not excessive in a survival action or against the manifest weight of the evidence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0199-01" ] }, { "cite": "481 N.E.2d 957", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 329", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599886 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0329-01" ] }, { "cite": "626 N.E.2d 1227", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1240" } ], "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 842", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2977801 ], "year": 1993, "pin_cites": [ { "page": "860" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0842-01" ] }, { "cite": "618 N.E.2d 909", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "249 Ill. App. 3d 370", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410660 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0370-01" ] }, { "cite": "642 N.E.2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 291", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333160 ], "year": 1994, "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0291-01" ] }, { "cite": "509 N.E.2d 558", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 324", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3505247 ], "year": 1987, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0324-01" ] }, { "cite": "295 Ill. App. 3d 770", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45706 ], "year": 1998, "pin_cites": [ { "page": "775-76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0770-01" ] }, { "cite": "498 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3603506 ], "year": 1986, "pin_cites": [ { "page": "1014" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/1009-01" ] }, { "cite": "513 N.E.2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 173", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649771 ], "year": 1987, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0173-01" ] }, { "cite": "622 N.E.2d 788", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1993, "pin_cites": [ { "page": "792" }, { "page": "793" }, { "page": "794" }, { "page": "795" }, { "page": "796" }, { "page": "796" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777551 ], "weight": 7, "year": 1993, "pin_cites": [ { "page": "518" }, { "page": "520" }, { "page": "522" }, { "page": "525" }, { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0511-01" ] }, { "cite": "457 N.E.2d 85", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 713", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629688 ], "year": 1983, "pin_cites": [ { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0715-01" ] }, { "cite": "517 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "298" } ], "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 1093", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547390 ], "year": 1987, "pin_cites": [ { "page": "1098" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/1093-01" ] }, { "cite": "608 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "238" } ], "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 204", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5139563 ], "year": 1992, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0204-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "513-14" }, { "page": "513" } ], "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "510" }, { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "629 N.E.2d 747", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "statute governing amendments to pleadings before final judgment should be construed liberally in order to allow the resolution of cases on the merits, with any doubts resolved in favor of allowing amendments" } ], "opinion_index": 0 }, { "cite": "258 Ill. App. 3d 932", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2880041 ], "year": 1994, "pin_cites": [ { "parenthetical": "statute governing amendments to pleadings before final judgment should be construed liberally in order to allow the resolution of cases on the merits, with any doubts resolved in favor of allowing amendments" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0932-01" ] }, { "cite": "447 N.E.2d 982", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "984" } ], "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 576", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625750 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0576-01" ] }, { "cite": "504 N.E.2d 916", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574740 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0642-01" ] } ], "analysis": { "cardinality": 1357, "char_count": 38931, "ocr_confidence": 0.788, "pagerank": { "raw": 8.320594024870918e-08, "percentile": 0.4801729753356277 }, "sha256": "e44d27ab750ffc87e03a89335369bd06fae01a4e78c77dbb9c4e9f7f1e7570c0", "simhash": "1:a2bae18c3395a531", "word_count": 6346 }, "last_updated": "2023-07-14T14:41:46.412422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SERAFINO PANTALEO, Special Adm\u2019r of the Estate of Joseph Pantaleo, Deceased, Plaintiff-Appellee and Cross-Appellant, v. OUR LADY OF THE RESURRECTION MEDICAL CENTER, f/k/a John F. Kennedy Medical Center, et al., Defendants-Appellants and Cross-Appellees." ], "opinions": [ { "text": "JUSTICE TULLY\ndelivered the opinion of the court:\nPlaintiff, Serafino Pantaleo, as special administrator of the estate of Joseph Pantaleo, deceased, brought a medical malpractice action to recover damages against defendants, Our Lady of the Resurrection Medical Center (OLRMC) and Dr. Alison Smith pursuant to the Survival Act (755 ILCS 5/27 \u2014 6 (West 1994)) and the Wrongful Death Act (740 ILCS 180/0.01 (West 1994)). The jury returned a verdict for plaintiff on the survival count in the amount of $1 million for pain and suffering and $250,000 for disability. The jury also rendered a verdict for plaintiff on the wrongful death count, but awarded zero damages to Serafino and Antoinette Pantaleo, decedent\u2019s parents, based on its finding of contributory negligence. In order to reach a result that was consistent with the jury\u2019s finding of contributory negligence of both parents, the trial court vacated the judgment for plaintiff on the wrongful death count and entered judgment for defendants. On August 1, 1996, the trial court entered judgment on both verdicts. The trial court denied plaintiff\u2019s posttrial motion on February 7, 1997. Defendants now appeal from the verdict on the survival count. Plaintiff cross-appeals from the verdict on the wrongful death count. This court has jurisdiction pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).\nFor the reasons that follow, we affirm.\nFACTUAL BACKGROUND\nThe following facts were adduced at trial. On November 18, 1988, at approximately 3 a.m., Serafino Pantaleo (Serafino) brought his 17-year-old son, Joseph Pantaleo (Joseph), to OLRMC\u2019s emergency room because Joseph was complaining of pains in his right shoulder and under his right armpit. Serafino was also concerned because he had noticed a red mark under Joseph\u2019s right armpit.\nAfter they arrived at OLRMC, nurse Terri Aquino examined Joseph. At trial, Aquino recounted that Joseph\u2019s vital signs were normal and he did not have a fever. Joseph\u2019s only complaint was of pain underneath his right arm. Aquino explained that she proceeded to conduct a physical assessment of Joseph, including an inspection of his right extremity from his fingertips up to his shoulder. During her examination, she did not see anything that would have indicated an \u201cinfectious disease process.\u201d Specifically, Aquino did not notice a reddened or infected cut on Joseph\u2019s right hand.\nNext, Dr. Alison Smith, a board-certified emergency room physician, examined Joseph. At trial, Dr. Smith recalled that Joseph told her he was having pains in his right armpit, right shoulder, and right upper arm. When Dr. Smith conducted a physical examination of Joseph, she noted that he did not have a fever and his vital signs were normal. In particular, Dr. Smith did not notice a wound on Joseph\u2019s right hand that was reddened, tender, or swollen, or which would have suggested an infection. As a result, Dr. Smith ruled out infection and did not do a \u201cwork-up\u201d of tests for infection. Instead, Dr. Smith diagnosed Joseph\u2019s condition as a shoulder strain, prescribed pain and anti-inflammatory medications for shoulder strain, and discharged him. Finally, she instructed Joseph and his father to return to the emergency room if Joseph experienced any increased pain, numbness or weakness.\nJoseph\u2019s mother, Antoinette Pantaleo (Antoinette), recounted the days that followed Joseph\u2019s release from OLRMC. Antoinette explained that she was working on November 18, 1988, when Serafino brought Joseph to the emergency room. When she returned from work, Serafino told her that everything was fine and that Joseph would feel better in a few days. Joseph complained of a fever, chills, and pain in his right arm. However, he did not vomit or have diarrhea. Antoinette testified that she did not realize that Joseph was seriously ill until he was admitted to Gottlieb Hospital on November 21, 1988.\nSerafino also testified about the events that ensued over the weekend. On Saturday, Serafino noticed a redness on Joseph\u2019s chest. Joseph complained of increasing pain in his right arm. However, Joseph did not vomit, have diarrhea, chills or a fever. On Sunday, Serafino observed that the redness on Joseph\u2019s chest had extended to his face. Early Monday morning, Serafino noticed a red line going up Joseph\u2019s right arm and Joseph crying in pain. At this point, Serafino became very concerned and drove Joseph to the emergency room at Gottlieb Hospital.\nAfter they arrived at Gottlieb Hospital on Monday, November 21, 1988, Dr. Fred Fishman, a board-certified emergency room physician, examined Joseph at approximately 6 a.m. At trial, Dr. Fishman testified that Joseph had a red streak, known as lymphangitis, emanating from his right thumb to his forearm. Joseph gave him a history of an infection on his right thumb of approximately five to six days. Dr. Fishman\u2019s examination of Joseph\u2019s thumb revealed it was reddened, swollen, and warm with crusty areas surrounding the infection and these observations were consistent with the history Joseph had given him. Dr. Fishman also drew a connection between the painful axilla, or armpit, and the ascending lymphangitis originating in the thumb. He reasoned that the tender nodes under the armpit meant that the body was trying to fight off a distal infection. After his examination, Dr. Fishman requested that Dr. Donna Hanlon, an infectious disease specialist, examine Joseph.\nDr. Hanlon began her examination at approximately 9 a.m. and initially diagnosed Joseph with streptococcal toxic shock syndrome emanating from the wound on his right thumb. At trial, Dr. Hanlon explained that streptococcal toxic shock syndrome was a rare disease entity in 1988 and that there was only one published medical article on it. After her examination, Dr. Hanlon obtained a history from Joseph. In a medical record, Dr. Hanlon wrote that Joseph stated that his right thumb was painful and red on November 16, 1988, and that he had cut his right thumb about one week prior to that date. She concluded that Joseph was an accurate historian and reasoned that \u201cif it (the thumb) was painful and red on the 16th and again on the 21st when I saw him, it probably was also on the 18th.\u201d Dr. Hanlon also realized that the five- to six-day history of infection in Joseph\u2019s right thumb was not only consistent with her exam, but also with the history obtained by Dr. Fishman. Subsequently, she diagnosed Joseph as having cellulitis (an infection of the skin on his right arm), with lymphangitis (an accompanying inflammation of the lymphatic or lymph channels leading towards the lymph nodes), hypotension (shock), and renal failure (kidney failure).\nAround 5 p.m. that same day, Dr. Hanlon saw Joseph again. She observed that he was conscious with a temperature of 99.8 degrees. She also noted that the pain in his armpit was more severe than she would have expected. Dr. Hanlon described Joseph as alert but intermittently confused, which was an indication of the toxic effect of the infection.\nOn November 22, 1988, at 4 a.m., Dr. Hanlon checked on Joseph and noted that he was alert and conscious with a temperature of 104.2 degrees, but he was confused. The next time Dr. Hanlon saw Joseph was 6 a.m. At this time, Joseph\u2019s kidneys had failed and his system was becoming very acidotic from the infection and the shock. Dr. Hanlon ordered the insertion of a catheter into his lung in order to combat the shock. At 8 a.m., Joseph was intubated to assist with his breathing. He was still conscious, although only when stimulated. Dr. Hanlon checked on Joseph again later that day and wrote a note, but did not indicate the time. She noted that Joseph was much sicker, completely dependent on the breathing machine, but still conscious. At trial, Dr. Hanlon could not comment as to whether Joseph was still conscious at 7:30 p.m.\nOn November 23, 1988, at 5 p.m., Joseph became hypotensive, suffered a cardiac arrest and died. Dr. Hanlon\u2019s final diagnosis was streptococcal toxic shock syndrome, secondary to cellulitis lymphangitis of the right upper extremity, and acute renal failure, secondary to sepsis. She defined shock as an inadequate blood supply to the body\u2019s tissues and organs and defined toxic shock as a group of symptoms caused by a toxin which is produced by a germ.\nPlaintiff called two expert witnesses, Dr. James Todd and Dr. Gary Harris. Dr. Todd, plaintiff\u2019s infectious disease expert, opined that there were signs of infection present on November 18 when Joseph was examined by Dr. Smith. He believed Joseph\u2019s thumb was red on November 18, because the Gottlieb chart indicated that Joseph had stated a history of a red, sore thumb beginning around November 16. In addition, the chart showed that Joseph had developed a tender axilla and Joseph\u2019s thumb was red on November 21. Dr. Todd also testified that if Joseph had received the appropriate antibiotics on November 18 or November 19, Joseph may have lived.\nPlaintiff\u2019s emergency medical expert, Dr. Harris, explained that he believed Dr. Smith had deviated from the applicable standard of care in her treatment of Joseph for the following reasons: (1) failure to properly examine and evaluate Joseph upon his initial presentation; (2) failure to take a proper history; (3) failure to do a proper examination based upon knowledge of Joseph\u2019s history; (4) failure to diagnose infection that existed in his extremity at the time of his examination; (5) failure to treat the infection; and (6) failure to admit him to the hospital. Dr. Harris also concluded that, to a reasonable degree of medical certainty, Dr. Smith\u2019s deviations from the applicable standard of care were the proximate cause of Joseph\u2019s death.\nNext, defendants called three expert witnesses: Dr. Jacek Franaszek, Dr. Daniel Mass, and Dr. Paul Arnow. Dr. Franaszek, an expert in emergency medicine,. testified that he believed that Dr. Smith complied with the standard of care in her treatment of Joseph. He based his opinion upon the normal vital signs, the absence of any medical evidence in the record that there was an infection on November 18, and Dr. Smith\u2019s examination. However, he also stated that if Serafino was correct about the red spot under Joseph\u2019s armpit on November 18, then the standard of care would have called \u201cfor a more vigorous consideration of the possibility of infection.\u201d He also opined that if Joseph\u2019s thumb was red and swollen when Dr. Smith examined him on November 18, then a failure to \u201cwork-up\u201d the possibility of infection would constitute a deviation from the applicable standard of care.\nDr. Mass, an expert in orthopedic medicine, concluded that Dr. Smith\u2019s diagnosis of shoulder strain conformed with the proper standard of care. Dr. Arnow, a board-certified specialist in infectious diseases, testified that if there was no evidence to suggest an infection, then the standard of care would not have required hospitalization or treatment with antibiotics. However, he also stated that if there was evidence of infection, like a red thumb, then the standard of care would have required a \u201cwork-up\u201d of infection.\nDuring trial, the court issued a limiting instruction to the jury. The court stated that the professional liability insurance paid by the hospital on behalf of Dr. Smith was to be considered only on the limited issue of whether Dr. Smith was an agent of the hospital or an independent contractor.\nFurthermore, during closing arguments, plaintiffs counsel stated \u201cyou folks determine whether or not care in the emergency room meets certain standards. You set the standard; we don\u2019t set the standard.\u201d Following closing arguments, the trial court issued jury instructions, one of which was not a standardized Illinois Pattern Jury Instruction (IPI) on apparent agency. The jury then rendered its verdict. After trial, plaintiff made a posttrial motion requesting the circuit court to vacate the jury\u2019s finding of the parents\u2019 contributory negligence and to have a new trial solely on the issue of wrongful death damages. The trial court denied that motion and this appeal followed.\nISSUES PRESENTED FOR REVIEW\nOn appeal, defendants argue that a judgment notwithstanding the verdict is appropriate because plaintiff failed to establish: (1) a prima facie case of medical negligence; (2) that the survival damages were proximately caused by Dr. Smith\u2019s negligence; and (3) that Dr. Smith was acting as either the actual or apparent agent of OLRMC. Defendants also urge that: (4) the jury\u2019s award of survival damages was excessive; (5) the jury\u2019s verdict that Dr. Smith was negligent was against the manifest weight of the evidence; (6) the jury\u2019s finding that Dr. Smith was the actual and apparent agent of OLRMC was against the manifest weight of the evidence; (7) the trial court erred in allowing evidence that OLRMC provided Dr. Smith with liability insurance; (8) the trial court erred in allowing Dr. Todd\u2019s testimony; (9) plaintiffs counsel made improper prejudicial remarks during closing argument; and (10) plaintiffs non-IPI instruction on apparent agency did not properly state the law.\nOn cross-appeal, plaintiff submits that: (1) the trial court abused its discretion by allowing defendants to file the affirmative defense of contributory negligence on the eve of trial; and (2) the jury\u2019s findings of the parents\u2019 contributory negligence and that their contributory negligence was a proximate cause of death were against the manifest weight of the evidence.\nOPINION\nWe first address defendants\u2019 motion to dismiss this appeal for lack of subject matter jurisdiction. Defendants argue that the circuit court lacked subject matter jurisdiction because Serafino was appointed special administrator of the estate of Joseph Pantaleo for the purpose of proceeding with the wrongful death action before trial, but was not appointed administrator of the estate for the purpose of the survival act count until after final judgment was entered, and that this court therefore lacks jurisdiction. See Wilmere v. Stibolt, 152 Ill. App. 3d 642, 504 N.E.2d 916 (1987). Defendants\u2019 motion is denied. Based on the limited facts of this case, as in Pavlov v. Konwall, 113 Ill. App. 3d 576, 447 N.E.2d 982 (1983), it was clear from the beginning that Serafino, Joseph\u2019s father, intended to bring the survival action as administrator of Joseph\u2019s estate. That Serafino became the administrator of the estate for the purpose of proceeding with the survival action when he did \u201cshould not prevent the cause from being decided on its merits in furtherance of justice.\u201d Pavlov, 113 Ill. App. 3d at 579, 447 N.E.2d at 984; cf. Selke v. Bove, 258 Ill. App. 3d 932, 629 N.E.2d 747 (1994) (statute governing amendments to pleadings before final judgment should be construed liberally in order to allow the resolution of cases on the merits, with any doubts resolved in favor of allowing amendments).\nThat said, we first turn to defendants\u2019 contention that a judgment notwithstanding the verdict is appropriate because plaintiff did not establish a prima facie case of medical negligence. The standard to be employed by this court in assessing the propriety of a denial of a motion for judgment notwithstanding the verdict is well established in Illinois. A judgment notwithstanding the verdict ought to be granted only in those cases where all the evidence, when viewed in its aspect most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967).\nIn order to recover in a case for medical negligence, a plaintiff must prove: (1) the proper standard of care against which the professional\u2019s conduct must be measured; (2) a negligent failure to comply with the standard of care; and (3) that the health professional\u2019s negligence was one of the proximate causes of the complained of injury. Saxton v. Toole, 240 Ill. App. 3d 204, 210, 608 N.E.2d 233, 238 (1992). More specifically with regard to proximate cause, the plaintiff must prove that it is more probably true than not true that a defendant\u2019s negligence was a proximate cause of the plaintiff\u2019s injury. Pumala v. Sipos, 163 Ill. App. 3d 1093, 1098, 517 N.E.2d 295, 298 (1987).\nHere, with regard to the proper standard of care, plaintiff sufficiently established, through expert testimony, the proper standard of care. Dr. Harris opined that the proper standard of care would have required Dr. Smith to \u201cwork-up\u201d the possibility of infection. Specifically, Dr. Harris testified that he believed Dr. Smith deviated from the standard of care in her treatment of Joseph when she: (1) failed to properly examine and evaluate Joseph upon his initial presentation; (2) failed to take a proper history; (3) failed to do a proper examination based upon knowledge of Joseph\u2019s history; (4) failed to diagnose infection which existed in his extremity at the time of his examination; (5) failed to treat the infection; and (6) failed to admit him to the hospital. Accordingly, we note that plaintiff established the proper standard of care.\nDefendants also claim that the evidence that Joseph\u2019s thumb was red on November 18, 1988, was insufficient to establish a breach of the standard of care. We disagree. It is within the jury\u2019s province to determine the credibility of witnesses, weigh evidence, and resolve conflicts. Bass v. Washington-Kinney Co., 119 Ill. App. 3d 713, 728, 457 N.E.2d 85, 97 (1983). It is well settled that the appellate court is not the forum in which to retry the facts of each case. The jury heard the expert testimony regarding the breach of the standard of care and found that Dr. Smith was negligent in failing to notice Joseph\u2019s red, swollen thumb when she examined him on November 18, 1988. Thus, after careful review of the record, we fail to perceive how all the evidence so overwhelmingly favors defendants that no contrary verdict could ever stand. Accordingly, we find no error.\nWith regard to defendants\u2019 next contention, they claim that a judgment notwithstanding the verdict was appropriate because plaintiff failed to establish that the survival damages were proximately caused by Dr. Smith\u2019s breach of the standard of care. Conversely, plaintiff claims that the evidence shows that Dr. Smith failed to diagnose Joseph\u2019s infection when it was in its beginning phases. Specifically, defendants claim that there was no evidence that Dr. Smith caused Joseph any more pain than he would have otherwise experienced as a result of the already present toxic process. However, the jury weighed the evidence and found that Dr. Smith\u2019s failure to diagnose the infection resulted in a toxic process that caused Joseph considerable pain and suffering and ultimately resulted in his death. Again, our review of the record fails to show how the jury\u2019s determination that it was more probably true than not that defendants\u2019 negligence that proximately caused Joseph\u2019s injury so overwhelmingly favors defendants that no contrary verdict could ever stand. In sum, as evidenced by the record, we find that defendants were medically negligent.\nDefendants next assert that they were entitled to judgment notwithstanding the verdict because plaintiff did not establish that Dr. Smith was acting as either OLRMC\u2019s actual or apparent agent. A hospital may be liable based upon a principal-agent relationship between the hospital and a physician. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 518, 622 N.E.2d 788, 792 (1993). In order to determine whether a physician is an agent or independent contractor of a hospital, two dominant factors to be considered are the hospital\u2019s right to control the physician\u2019s actions and the method of payment to the physician. Johnson v. Sumner, 160 Ill. App. 3d 173, 176, 513 N.E.2d 149, 151 (1987); Greene v. Rogers, 147 Ill. App. 3d 1009, 1014, 498 N.E.2d 867, 871 (1986). In Gilbert, 156 Ill. 2d 511, 622 N.E.2d 788, our supreme court criticized the Greene and Johnson decisions. Dahan v. UHS of Bethesda, Inc, 295 Ill. App. 3d 770, 775-76 (1998). The supreme court observed that these cases overlooked the \u201crealities of modern hospital care.\u201d Gilbert, 156 Ill. 2d at 520, 622 N.E.2d at 793. The court concluded that, because of the realities of modern hospital care, \u201cliability attaches to the hospital only where the treating physician is the apparent or ostensible agent of the hospital. If the patient knows, or should have known, that the treating physician is an independent contractor, then the hospital will not be liable.\u201d Gilbert, 156 Ill. 2d at 522, 622 N.E.2d at 794. Gilbert set forth the test for apparent authority as follows: a plaintiff must show that a reasonable person would conclude that the individual was an employee or agent of the hospital; that the hospital had knowledge of and acquiesced in the appearance of authority; and that the plaintiff relied with ordinary care on the agent\u2019s or hospital\u2019s conduct. Gilbert, 156 Ill. 2d at 525, 622 N.E.2d at 795. When there is some dispute as to the extent of the parties\u2019 relationship, the existence and scope of an agency relationship are questions of fact for the jury to decide. Barbour v. South Chicago Community Hospital, 156 Ill. App. 3d 324, 329, 509 N.E.2d 558, 562 (1987).\nOur review of the evidence presented at trial convinces us that there is no reason to disturb the jury\u2019s finding that Dr. Smith was an apparent agent of the hospital. There was more than ample evidence to support the jury\u2019s finding of OLRMC\u2019s liability. When Joseph was brought to OLRMC\u2019s emergency room, Joseph did not ask for Dr. Smith specifically, nor was Dr. Smith Joseph\u2019s physician. Dr. Smith was merely the physician who was covering the emergency room that day. Joseph did not know and could not have known that Dr. Smith was an independent contractor, nor did the hospital inform him of that. Accordingly, we find that the evidence, when viewed in a light most favorable to plaintiff, did not overwhelmingly favor defendants such that the verdict in this case cannot stand.\nWe now turn to defendants\u2019 contention that they are entitled to a new trial or, in the alternative, a remittitur because the jury\u2019s award of survival damages was excessive. A new trial should only be granted if the verdict is contrary to the manifest weight of the evidence. Pedrick, 37 Ill. 2d at 509, 229 N.E.2d at 513. A verdict will be deemed to be against the manifest weight of the evidence if it is palpably erroneous and wholly unwarranted, the result of passion or prejudice, or appears to be arbitrary, unreasonable, and not based on the evidence. Sandy Creek Condominium Ass\u2019n v. Stolt & Egner, Inc., 267 Ill. App. 3d 291, 294, 642 N.E.2d 171 (1994), citing Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 618 N.E.2d 909 (1993). Courts have a responsibility to carefully scrutinize the record to determine whether the amount of a verdict is so large as to indicate that it is the result of prejudice or passion, or the amount \u201cshocks the judicial conscience.\u201d Wagner v. City of Chicago, 254 Ill. App. 3d 842, 860, 626 N.E.2d 1227, 1240 (1993); Northern Trust Co. v. County of Cook, 135 Ill. App. 3d 329, 481 N.E.2d 957 (1985); see Barry v. Owens-Corning Fiberglass Co., 282 Ill. App. 3d 199, 668 N.E.2d 8 (1996) (where the court found that $4,400,000 in pain and suffering damages was not excessive in a survival action or against the manifest weight of the evidence).\nPlaintiff relies heavily on Holston v. Sisters of the Third Order of St. Francis, 165 Ill. 2d 150, 650 N.E.2d 985 (1995), for its suggestion that the jury\u2019s survival award was not excessive. In Holston, our supreme court ruled that a jury\u2019s verdict of $600,000 for the plaintiffs pain and suffering and $400,000 for the plaintiff\u2019s disability and disfigurement was not excessive in a survival action, even though the medical malpractice victim died in a coma. The hospital argued that most or all of the patient\u2019s pain was expected discomfort following surgery and that, after the patient lost consciousness, she felt no further pain. The supreme court upheld the appellate court and stated that the evidence of increasing pressure on the heart, rising pulse rate, and declining blood pressure created a reasonable inference that the victim suffered more than she would have in a normal postoperative course. Furthermore, the supreme court noted that the evidence of the patient\u2019s pain and suffering included the time preceding the emergency surgery, which was performed several hours after the negligent operation.\nWe believe that the facts in this case are more compelling and extreme than those of Holston. In both cases the victims were young, in Holston, a 29-year-old woman, and here a 17-year-old boy. In Holston, the victim had suffered acutely for five hours after a negligent operation before losing consciousness. Here, Joseph was conscious for about 26 hours while painful procedures were being performed on him. Joseph suffered significantly more than he would have if he had been diagnosed properly and the progression of the infection to streptococcal toxic shock syndrome had been prevented. Specifically, Joseph experienced severe armpit pain, a rising temperature, shock, renal (kidney) failure, confusion, and loss of respiratory function. In addition, the issue of Joseph\u2019s pain and suffering was not limited to the period of time in which he was at Gottlieb. The evidence of Joseph\u2019s pain and suffering includes the time preceding his admission to Gottlieb when he was in the beginning stages of shock through over a 26-hour period in which a number of painful procedures were performed on Joseph while he was still conscious. In sum, the award for Joseph\u2019s suffering was by no stretch of the imagination against the manifest weight of the evidence.\nDefendants\u2019 fifth argument is that the jury\u2019s verdict of Dr. Smith\u2019s negligence was against the manifest weight of the evidence. We note that we have previously set forth the case law for the manifest weight of the evidence standard. In applying this standard, a reviewing court views the evidence in the light most favorable to the appellee. Hulman v. Evanston Hospital Corp., 259 Ill. App. 3d 133, 150, 631 N.E.2d 322, 333 (1994). A reviewing court may not set aside a jury verdict merely because the jury could have determined the credibility of the witnesses differently or drawn different inferences of fact. Hulman, 259 Ill. App. 3d at 150, 631 N.E.2d at 333. In the present case, we find that the jury\u2019s verdict was not against the manifest weight of the evidence.\nDr. Todd opined that there were signs of infection present on November 18 when Joseph was examined by Dr. Smith. He reasoned that Joseph\u2019s thumb was red on November 18 because Joseph had stated a history of a red, sore thumb beginning around November 16, had developed a tender axilla, and his thumb was still red on November 21. Furthermore, Dr. Harris testified that Dr. Smith deviated from the standard of care in her treatment of Joseph and that her deviations were the proximate cause of Joseph\u2019s death. Accordingly, we will not upset the verdict \u201cmerely because the jury could have drawn different inferences and conclusions from conflicting testimony\u201d presented at trial. Collins v. Roseland Community Hospital, 219 Ill. App. 3d 766, 776, 579 N.E.2d 1105, 1111 (1991).\nDefendants\u2019 sixth claim is that the jury\u2019s finding that Dr. Smith was the actual and apparent agent of OLRMC was against the manifest weight of the evidence. For the same reasons noted previously, we find that the jury\u2019s verdict with respect to this issue was not against the manifest weight of the evidence.\n\u202212 With respect to defendants\u2019 seventh claim that the trial court erred in allowing evidence that OLRMC provided Dr. Smith with liability insurance, plaintiff maintains that evidence of insurance is admissible to show an agency relationship between Dr. Smith and the hospital and that the probative value outweighs the.prejudicial effect. Although insurance is not admissible to show fault, \u201cthe existence of insurance may be shown in connection with issues such as agency, ownership, control, bias, or prejudice of a witness.\u201d Boettcher v. Fournie Farms, Inc., 243 Ill. App. 3d 940, 945, 612 N.E.2d 969, 973 (1993).\nIn the instant case, testimony of liability insurance was properly used to show that an agency relationship existed because OLRMC denied having an agency relationship with Dr. Smith. In addition, any error in the admission of the insurance information was cured by way of a special instruction. See Hobart v. Shin, 292 Ill. App. 3d 580, 589, 686 N.E.2d 617, 622 (1997). The trial court stated that the professional liability insurance paid by the hospital on behalf of Dr! Smith was to be considered only on the limited issue of whether Dr. Smith was an agent of the hospital or an independent contractor. Thus, even if there was an error, it was harmless.\nStill to be considered is defendants' claim that Dr. Todd's opinion testimony violated the disclosure requirements of former Supreme Court Rule 220 (134 Ill. 2d R. 220) and resulted in reversible error. We note that Rule 220 has been repealed by our supreme court, effective on January 1, 1996. Nevertheless, since this case was filed before the effective date, Rule 220 will be applied to the present case. Defendants do not allege a violation of any particular section of Rule 220 but, rather, allege a general violation. Under Rule 220(d), an expert\u2019s testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed through interrogatories and depositions. 134 Ill. 2d R. 220(d). The decision to allow or exclude expert testimony is a matter committed to the sound discretion of the circuit court and will not be interfered with unless it appears to have been abused. Huelsmann v. Berkowitz, 210 Ill. App. 3d 806, 810, 568 N.E.2d 1373, 1376 (1991). The trial court retains discretion in its ruling on the admissibility of an expert\u2019s testimony, even if a technical violation of Rule 220 exists. Holston, 165 Ill. 2d at 163, 650 N.E.2d at 991.\nUpon carefully reviewing the record on appeal, we find that the trial court did not abuse its discretion. Dr. Todd\u2019s pretrial opinion was \u201cthat failure to institute appropriate antibiotic treatment at [OLRMC] caused or contributed to the patient\u2019s ultimate demise at Gottlieb.\u201d Dr. Todd then opined at trial that Joseph\u2019s thumb was red and the infection was visible on November 18, when he was examined by Dr. Smith. The trial court correctly ruled that even if there were some technical violations, these statements did not violate the substance of Rule 220. Defendants\u2019 argument that Dr. Todd\u2019s trial opinion was improperly allowed to exceed the scope of his deposition, to the surprise and prejudice of defendants, is unpersuasive. As the trial court correctly ruled, there was no surprise to defendants because Dr. Todd\u2019s deposition testimony indicated that he believed that Joseph\u2019s reddened thumb existed on November 18. Accordingly, we reject defendants\u2019 argument that Dr. Todd stated a new or unfairly surprising opinion regarding the presence of the red thumb and infection.\nWith regard to defendants\u2019 next argument, that plaintiff\u2019s remarks during closing argument were improper, plaintiff submits that the statements were taken out of context of plaintiffs entire closing argument. Specifically, defendants cite the following statements as being prejudicial: \u201cYou folks determine whether or not care in the emergency room meets certain standards. You set the standard; we don\u2019t set the standard.\u201d Defendants\u2019 argue that plaintiffs counsel suggested to the jury that it did not need expert testimony to support a verdict in favor of plaintiff. Illinois law is clear that an error is not reversible unless it can be shown that the error was substantially prejudicial and, therefore, unduly affected the outcome of the trial. Schaffner v. Chicago & North Western Transportation Co., 161 Ill. App. 3d 742, 515 N.E.2d 298 (1987). Defendants do not cite any supporting case law. In addition, they fail to convince us how these comments prejudiced their case and denied them a fair trial. The trial court sustained defendants\u2019 objection to the statement during closing arguments and quickly confirmed that the jury determines the appropriate standard of care from the testimony of the expert. Furthermore, defendants failed to object a second time when the statement was repeated. Thus, we find no reversible error.\nFinally, defendants contend that plaintiffs non-IPI instruction on apparent agency, which was copied from Gilbert, 156 Ill. 2d at 525, 622 N.E.2d at 796, did not properly state the law and therefore denied them a fair trial. The non-IPI instruction states in pertinent part:\n\u201cDr. Smith is an apparent agent of the hospital, such that the hospital would be liable for her negligence, if the plaintiff proves the following two factors:\n(a) \u2018That the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by an independent contractor;\n(b) The plaintiff relies upon the hospital to provide complete emergency room care, treatment, and services, and does not request treatment from a specific physician.\u2019 \u201d\nSee Gilbert, 156 Ill. 2d at 525, 622 N.E.2d at 796. It is well within the trial court\u2019s discretion to determine which instructions shall be given, and the exercise of such discretion will not be disturbed by this court in the absence of an abuse of discretion. Harding v. Amsted Industries, Inc., 276 Ill. App. 3d 483, 658 N.E.2d 1208 (1995). After reviewing the record before us, we find no abuse of discretion. Defendants, who rely on Northern Trust Co. v. St. Francis Hospital, 168 Ill. App. 3d 270, 522 N.E.2d 699 (1988), which came before Gilbert, fail to persuade us that the jury instructions given inaccurately stated the law. Regardless, as the trial court noted at the hearing on defendant\u2019s posttrial motion, the evidence established an agency relationship between OLRMC and Dr. Smith.\nWe now turn to plaintiffs cross-appeal. Plaintiff first claims that the trial court erred by allowing defendants to file their affirmative defense of contributory negligence on the eve of trial. The decision of whether to allow amendments to the pleadings is within the sound discretion of the trial court and should not be disturbed upon review absent an abuse of that discretion. Hobart, 292 Ill. App. 3d at 585, 686 N.E.2d at 620; Carlisle v. Harp, 200 Ill. App. 3d 908, 915, 558 N.E.2d 318, 322 (1990). Courts generally consider the timeliness of the amendment and whether the opponent was prejudiced or surprised by its filing. Carlisle, 200 Ill. App. 3d at 915, 558 N.E.2d at 322. Such amendments should be liberally allowed to further the ends of justice. Hobart, 292 Ill. App. 3d at 585, 686 N.E.2d at 620.\nIn the case at bar, we find that the trial court did not abuse its discretion. Although the record indicates that defendants knew about the facts concerning their affirmative defense for some time and offered no explanation for the late filing, plaintiff clearly was not surprised. When the trial court questioned plaintiffs counsel regarding the affirmative defense, plaintiff\u2019s counsel stated, \u201cI suspected that it was coming.\u201d The trial court later concluded, \u201cI say you\u2019re not surprised.\u201d Moreover, plaintiffs counsel questioned defendants\u2019 expert witnesses about the parents\u2019 contributory negligence during their depositions. Furthermore, the trial court gave plaintiffs counsel another opportunity to take Dr. Smith\u2019s deposition, if he had unanswered questions or if he was surprised by the affirmative defense. Thus, we find no abuse of discretion.\nStill to be considered is plaintiffs contention that the trial court erred in denying its posttrial motion because the jury\u2019s finding of the parents\u2019 contributory negligence was against the manifest weight of the evidence. Plaintiff further submits that the jury\u2019s finding of the parents\u2019 contributory negligence was against the manifest weight of the evidence because defendants did not present any expert testimony that the parents\u2019 conduct was a proximate cause of Joseph\u2019s death. We note that the case law regarding the manifest weight of the evidence standard has previously been set forth. Contributory negligence is the failure to exercise that care which, under the circum-' stances presented by the evidence, a reasonably prudent person would take to avoid injury. Bothun v. Wallace, 61 Ill. App. 3d 365, 377 N.E.2d 1054 (1978). The issue of contributory negligence is ordinarily a question of fact to be determined by the trier of fact. Haist v. Wu, 235 Ill. App. 3d 799, 816, 601 N.E.2d 927, 937 (1992).\nAfter a painstaking review of the record on appeal and the evidence presented at trial, we find that the jury\u2019s finding that the parents were contributorily negligent, and that such negligence was the proximate cause of Joseph\u2019s death, was not unreasonable. Upon leaving OLRMC on Friday, November 18, Serafino was told to return to the hospital with Joseph if Joseph experienced any increased pain, numbness or weakness. Even though both Serafino and Antoinette testified that Joseph\u2019s pain in his upper arm increased over the weekend, Joseph was not taken to the hospital until Monday, November 21. In addition, Serafino said that he noticed a redness on Joseph\u2019s chest on Saturday which had extended to his face by Sunday. Furthermore, proximate cause was supported by Dr. Todd\u2019s testimony that if Joseph had received antibiotics on November 19, he probably would have survived. We also note that the cases that plaintiff relies on regarding proximate cause are not on point. Accordingly, we find that the jury\u2019s finding of contributory negligence was supported by the record and, therefore, was not against the manifest weight of the evidence.\nIn sum, we find that a judgment notwithstanding the verdict was not appropriate, the trial court did not err by allowing defendants to file the affirmative defense of contributory negligence on the eve of trial and the jury\u2019s finding of contributory negligence was not against the manifest weight of the evidence.\nIn light of the foregoing, we affirm.\nJudgment affirmed.\nMcNULTY, EJ., and COUSINS, J., concur.", "type": "majority", "author": "JUSTICE TULLY" } ], "attorneys": [ "Kevin T. Martin and Kevin V. Boyle, both of Swanson, Martin & Bell, of Chicago, for appellants.", "Joseph R. Curcio and Allen I. Tish, both of Joseph R. Curcio, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "SERAFINO PANTALEO, Special Adm\u2019r of the Estate of Joseph Pantaleo, Deceased, Plaintiff-Appellee and Cross-Appellant, v. OUR LADY OF THE RESURRECTION MEDICAL CENTER, f/k/a John F. Kennedy Medical Center, et al., Defendants-Appellants and Cross-Appellees.\nFirst District (2nd Division)\nNo. 1\u201497\u20140922\nOpinion filed June 2, 1998.\nKevin T. Martin and Kevin V. Boyle, both of Swanson, Martin & Bell, of Chicago, for appellants.\nJoseph R. Curcio and Allen I. Tish, both of Joseph R. Curcio, Ltd., of Chicago, for appellee." }, "file_name": "0266-01", "first_page_order": 284, "last_page_order": 301 }