{ "id": 511369, "name": "MOIRA McDONNELL, Ex'x of the Estate of John G. McDonnell, Deceased, Plaintiff-Appellant, v. RICHARD F. McPARTLIN III et al., DefendantsAppellees", "name_abbreviation": "McDonnell v. McPartlin", "decision_date": "1999-02-25", "docket_number": "No. 1\u201497\u20141822", "first_page": "391", "last_page": "402", "citations": [ { "type": "official", "cite": "303 Ill. App. 3d 391" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "294 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "53 Ill. 2d 591", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926266 ], "year": 1973, "pin_cites": [ { "page": "599-600" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0591-01" ] }, { "cite": "571 N.E.2d 271", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 575", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600207 ], "year": 1991, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0575-01" ] }, { "cite": "142 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "13 Ill. App. 2d 482", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5171198 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0482-01" ] }, { "cite": "299 N.E.2d 376", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850593 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/1089-01" ] }, { "cite": "392 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 650", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3261937 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0650-01" ] }, { "cite": "450 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557652 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0795-01" ] }, { "cite": "620 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "250 Ill. App. 3d 759", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2918158 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "765" }, { "page": "766" }, { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0759-01" ] }, { "cite": "473 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 457", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495337 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "476" }, { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0457-01" ] }, { "cite": "524 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3584649 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "512" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0505-01" ] }, { "cite": "559 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594725 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "489" }, { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0480-01" ] }, { "cite": "569 N.E.2d 1237", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526927 ], "year": 1991, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0070-01" ] }, { "cite": "464 N.E.2d 767", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 342", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3429807 ], "year": 1984, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0342-01" ] }, { "cite": "432 N.E.2d 1293", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "\"contributory negligence of next of kin under the Wrongful Death Act [citation] does not bar recovery but simply precludes such heir from recovery\"" } ], "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 670", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5476167 ], "year": 1982, "pin_cites": [ { "page": "674", "parenthetical": "\"contributory negligence of next of kin under the Wrongful Death Act [citation] does not bar recovery but simply precludes such heir from recovery\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0670-01" ] }, { "cite": "632 N.E.2d 946", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "251 Ill. App. 3d 980", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2958253 ], "year": 1993, "pin_cites": [ { "page": "982-83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0980-01" ] }, { "cite": "570 N.E.2d 1209", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600671 ], "year": 1991, "pin_cites": [ { "page": "336-37" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0335-01" ] }, { "cite": "632 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "phrase \"within a reasonable degree of medical certainty\" is not required where expert's level of certainty is otherwise established by his testimony" } ], "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2864805 ], "year": 1994, "pin_cites": [ { "page": "595", "parenthetical": "phrase \"within a reasonable degree of medical certainty\" is not required where expert's level of certainty is otherwise established by his testimony" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0591-01" ] }, { "cite": "680 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 145", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1597010 ], "year": 1997, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0145-01" ] }, { "cite": "425 N.E.2d 539", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "proper to tell jury penicillin-resistant bacterium and not defendant dentist's acts could be the sole proximate cause of plaintiffs infection" } ], "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100769 ], "year": 1981, "pin_cites": [ { "parenthetical": "proper to tell jury penicillin-resistant bacterium and not defendant dentist's acts could be the sole proximate cause of plaintiffs infection" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0266-01" ] }, { "cite": "561 N.E.2d 744", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "jury properly told it could find defendant's failure to discover infection neither aggravated nor caused the damage to plaintiffs hip" } ], "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2580564 ], "year": 1990, "pin_cites": [ { "parenthetical": "jury properly told it could find defendant's failure to discover infection neither aggravated nor caused the damage to plaintiffs hip" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0504-01" ] }, { "cite": "182 N.E.2d 206", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "24 Ill. 2d 390", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2802750 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/24/0390-01" ] }, { "cite": "173 N.E.2d 209", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "29 Ill. App. 2d 323", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5221736 ], "year": 1961, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0323-01" ] }, { "cite": "702 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "some evidence in the record of sole proximate cause is sufficient to support the second paragraph of IPI Civil 3d No. 12.04" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 964", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221528 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "974", "parenthetical": "some evidence in the record of sole proximate cause is sufficient to support the second paragraph of IPI Civil 3d No. 12.04" }, { "page": "974" }, { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0964-01" ] }, { "cite": "603 N.E.2d 1203", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5163435 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0396-01" ] }, { "cite": "629 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "257 Ill. App. 3d 119", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2889412 ], "year": 1993, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0119-01" ] }, { "cite": "679 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "176 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544914 ], "year": 1997, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0095-01" ] }, { "cite": "658 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "168 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307264 ], "weight": 7, "year": 1995, "pin_cites": [ { "page": "93-94" }, { "page": "101" }, { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0083-01" ] }, { "cite": "627 N.E.2d 29", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2981128 ], "year": 1993, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0435-01" ] } ], "analysis": { "cardinality": 1115, "char_count": 26087, "ocr_confidence": 0.789, "pagerank": { "raw": 8.73680380482867e-08, "percentile": 0.49452709405065703 }, "sha256": "3b1e106f3258d4b670d7804834009148b918a59948c9f2d4da69768aca43dffe", "simhash": "1:43b69bd2bb257c8d", "word_count": 4332 }, "last_updated": "2023-07-14T16:41:17.679955+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MOIRA McDONNELL, Ex\u2019x of the Estate of John G. McDonnell, Deceased, Plaintiff-Appellant, v. RICHARD F. McPARTLIN III et al., DefendantsAppellees." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nIn this professional medical negligence trial two doctors were accused of failing to timely diagnose and treat John McDonnell\u2019s hip infection, proximately causing his eventual death. While the defendants denied they were negligent and denied anything they did was a proximate cause of the injury, they also contended, among other things, a nonparty doctor\u2019s conduct was the sole proximate cause of the injury.\nThe jury returned a verdict for the defendant doctors. This appeal requires us to examine the matter of sole proximate cause, along with other claims of error that include improper evidence and instructions on matters of contributory negligence and mitigation of damages. We affirm judgment on the jury\u2019s verdict and on the trial court\u2019s order denying a motion for new trial.\nFACTS\nIn April 1986, Dr. James Ahstrom (Dr. Ahstrom) performed hip replacement surgery on John McDonnell (John). Following this surgery, John\u2019s internist was Dr. Richard McPartlin (Dr. McPartlin).\nOn November 8, 1986, Moira McDonnell (Moira), John\u2019s wife, telephoned Dr. McPartlin because John felt sick. Dr. Barbara Loeb (Dr. Loeb) was covering Dr. McPartlin\u2019s patients in his absence and told Moira to bring John to the Good Samaritan Hospital emergency room.\nDr. Thomas Mullin, Jr. (Dr. Mullin), examined John at the emergency room and spoke with Dr. Loeb. Based on Dr. Mullin\u2019s description of John\u2019s condition, Dr. Loeb did not admit John to the hospital. John was instructed to telephone Dr. Loeb the next day with his blood-sugar level, so she could monitor closely his diabetes. John and Moira returned home.\nThe next day, November 9, Moira tested John\u2019s blood-sugar and telephoned Dr. Loeb. When she learned his blood-sugar level was significantly elevated, Dr. Loeb suggested John should return to the emergency room. John declined, choosing instead to control his blood-sugar level with insulin. Dr. Loeb agreed. Several hours later, John telephoned Dr. Loeb to explain his blood-sugar levels had decreased. John assured Dr. Loeb he would telephone Dr. McPartlin the next day.\nThe next day, November 10, John still felt sick, and Dr. McPartlin admitted him to the intensive care unit of Good Samaritan Hospital. Dr. McPartlin eventually diagnosed John\u2019s condition as an overwhelming bacterial infection centered in his surgically replaced hip. As the infection progressed, Dr. Ahstrom advised Moira that another hip surgery could kill John because the infection had become so advanced. Dr. Ahstrom also advised Moira not to consent to another surgery. Moira followed Dr. Ahstrom\u2019s advice.\nIn December 1986, John was transferred to Rush-Presbyterian-St. Luke\u2019s Hospital, where his surgically replaced hip was removed. John died in February, 1987 from heart failure associated with the infection.\nMoira, as executrix of her husband\u2019s estate, filed a medical malpractice complaint against, inter alia, Dr. McPartlin and Dr. Mullin. Moira alleged Dr. Mullin negligently failed to diagnose John\u2019s infection during his first trip to the Good Samaritan Hospital emergency room. Moira alleged Dr. McPartlin also negligently failed to timely diagnose the infection.\nAt trial, the jury found for the defendants. The trial court entered judgment on the jury\u2019s verdict and denied Moira\u2019s posttrial motions. This appeal followed.\nDECISION\n1. Sole Proximate Cause\nDuring this trial the defendants repeatedly pointed to the empty chair. There was a great deal of testimony concerning Dr. Ahstrom\u2019s treatment of John, especially Dr. Ahstrom\u2019s unwillingness to remove John\u2019s surgically replaced hip. The defense lawyers were allowed to argue Dr. Ahstrom\u2019s conduct was the sole proximate cause of the injuries at issue. In addition, the defendants asked for and received, over objection, a jury instruction concerning sole proximate cause. See Illinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1995) (hereinafter IPI Civil 3d). Moira contends the trial court erred.\nMore than one issue was joined in this case. The plaintiff, of course, had to prove a defendant\u2019s professional negligence was a proximate cause of the injury in order to recover damages from that defendant. That meant establishing a standard of care, a deviation from that standard, and a causal connection between the deviation and the injuries sustained. Evanston Hospital v. Crane, 254 Ill. App. 3d 435, 441, 627 N.E.2d 29 (1993).\nIt bears repeating: \u201cThe element of proximate cause is an element of the plaintiff\u2019s case. The defendant is not required to plead lack of proximate cause as an affirmative defense.\u201d (Emphasis in original.) Leonardi v. Loyola University, 168 Ill. 2d 83, 93-94, 658 N.E.2d 450 (1995).\nIn this case, the defendants\u2019 general denials of any proximate cause were enough to allow them to raise the defense. Leonardi, 168 Ill. 2d at 101. The defendants did not assume any burden of proof when they presented evidence of Dr. Ahstrom\u2019s conduct. The sole proximate cause defense \u201cmerely focuses the attention of a properly instructed jury *** on the plaintiffs duty to prove that the defendant\u2019s conduct was a proximate cause of plaintiffs injury.\u201d Leonardi, 168 Ill. 2d at 94.\nWhether a defendant is entitled to a sole proximate cause instruction depends on the evidence he presents. The defense fails when the evidence merely shows the defendant\u2019s negligence was one of several causes of the injury. In that case, the plaintiff has sustained his burden. That is, \u201ca sole proximate cause instruction is not appropriate unless there is evidence that the sole proximate cause (not \u2018a\u2019 proximate cause) of a plaintiffs injury is conduct of another person or condition.\u201d (Emphasis in original.) Holton v. Memorial Hospital, 176 Ill. 2d 95, 134, 679 N.E.2d 1202 (1997).\nIllinois Pattern Jury Instructions, Civil 3d, No. 12.04 is the sole proximate cause instruction received by the jury:\n\u201cMore than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.\nHowever, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.\u201d IPI Civil 3d No. 12.04.\nIn the Notes on Use for IPI Civil 3d No. 12.04, the IPI committee said: \u201cThe second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of *** third person[s].\u201d IPI Civil 3d No. 12.04, Notes on Use.\nWe believe this is such a case.\nDr. Ahstrom told the jury he considered removing John\u2019s artificial hip in November 1986, but declined: \u201cAt the time I felt that we had a chance of saving his weight-bearing ability.\u201d\nThe defense offered testimony that a range of treating doctors was telling Dr. Ahstrom the hip prosthesis should come out. On cross-examination:\n\u201cDEFENSE COUNSEL: Now, doctor, as of [November 21, 1986], you have the infectious disease doctor, the cardiologist, the surgeon, the internal medicine doctor all telling you *** that this hip, this hip prosthesis is not only in their judgment, in their opinion infected, that it\u2019s the source of the fever spikes, that it has to come out, and if it doesn\u2019t come out he is going to die, correct?\nDR. AHSTROM: Well, that\u2019s what they wrote.\nDEFENSE COUNSEL: And you disregarded all of their opinions, isn\u2019t that correct?\nDR. AHSTROM: Well, I wrote my own opinion, yes.\u201d\nIn his November 21 notes Dr. Ahstrom responded to Dr. McPartlin\u2019s note that John \u201cis doomed if prosthesis is not removed.\u201d Dr. Ahstrom wrote: \u201c[John] cannot stand major procedure such as removal of prosthesis. I don\u2019t believe that is necessary anyhow at present.\u201d\nDr. Orth, one of John\u2019s treating physicians, said when he saw the patient for the first time on November 12, 1986, it was his opinion, to a reasonable degree of medical certainty, unless the hip was removed the patient would continue to have the infection and the infection eventually would kill him.\nDr. Shin, another of John\u2019s treating physicians, agreed John\u2019s artificial hip had to be removed \u201cin order for him to be able to survive.\u201d John would have survived his infection, Dr. Shin said, if his artificial hip was removed sooner.\nDr. Gump, one of Moira\u2019s expert witnesses, on cross-examination:\n\u201cDEFENSE COUNSEL: Doctor, in particular, you agree with Dr. McPartlin\u2019s note of November 21, 1986 that the patient was doomed if the hip was not removed, isn\u2019t that true?\nDR. GUMP: That is true.\u201d\nDr. Gump also said John likely would have survived the infection if his artificial hip was removed earlier, but that it was removed too late, the unfortunate outcome already a foregone conclusion.\nDr. Muehrcke, a defense expert, said that John\u2019s artificial hip had to be removed: \u201cI don\u2019t believe there\u2019s any way that the infection and its effect on the patient could be stopped or \u2014 could be stopped without it coming out.\u201d The role of the orthopedic surgeon, he said, was not to determine whether a patient was capable of undergoing surgery.\nDuring the crucial time, much of November and early December, Dr. Ahstrom was advising family members not to allow the surgery. They took his advice. When the operation finally was performed on December 5, 1986, it was too late. John died because of the infection in February 1987. '\nBased on this evidence, we cannot say the trial court abused its discretion by allowing testimony, argument, and instruction on sole proximate cause.\nA defendant always is free to offer evidence that its conduct, negligent or not, was not a proximate cause of the injury. Here, expert testimony clearly established a basis for a jury finding that Dr. Ahstrom\u2019s conduct was the sole proximate cause of injury. Of course, we do not know the jury made that finding when it decided for the defendants. No special interrogatory was offered \u201cilluminating what role, if any, the sole proximate cause defense played in the jury\u2019s verdict.\u201d Flores v. Cyborski, 257 Ill. App. 3d 119, 135, 629 N.E.2d 74 (1993).\nUnder circumstances like those present here, the second paragraph of IPI Civil 3d No. 12.04 must be given to the jury \u201cin order to correct any negative implications arising from the first paragraph.\u201d Ellig v. Delnor Community Hospital, 237 Ill. App. 3d 396, 408, 603 N.E.2d 1203 (1992). See also Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 974, 702 N.E.2d 303 (1998) (some evidence in the record of sole proximate cause is sufficient to support the second paragraph of IPI Civil 3d No. 12.04).\nOur conclusion rests on our belief that the \u201cconduct\u201d of the occupant of the empty chair does not have to attain the status of professional negligence.\nThe defendants\u2019 evidence of Dr. Ahstrom\u2019s conduct \u201cin no way shifts to the defendant the burden of proof.\u201d Leonardi, 168 Ill. 2d at 94. Moira always had the burden of proving negligence of a defendant was a proximate cause of John\u2019s injury. Leonardi, 168 Ill. 2d at 94, citing Caley v. Manicke, 29 Ill. App. 2d 323, 328, 173 N.E.2d 209 (1961), rev\u2019d on other grounds, 24 Ill. 2d 390, 182 N.E.2d 206 (1962). She had to prove a defendant\u2019s deviation from the standard of care was a cause of John\u2019s injury. The second paragraph of IPI Civil 3d No. 12.04 is another way of stating that burden. It is a reformulation of the plaintiffs task. Nothing in the IPI suggests the standard of care instructions (see IPI Civil 3d Nos. 105.01, 105.02) apply to anyone other than a defendant. The plaintiff is pursuing a cause of action against the defendant, not the other way around.\nThe word \u201cconduct\u201d was carefully chosen by the IPI committee. It declined to characterize the word, a commonsense judgment. There is no suggestion in the instruction or in the Notes on Use that the word \u201cconduct\u201d requires any definition.\nAt the risk of appearing casuistic, we suggest the proposition that an event cannot happen without a negligent cause defies logic. People get hurt. Sometimes a cause is negligence, or wilfulness, or design. Sometimes it is not any of these things. Nevertheless, the event takes place. People, doctors included, make judgments that, in hindsight, turn out to be mistaken. Those judgments might not be professionally negligent when made. Yet, injury resulted. See Ramos v. Pankaj, 203 Ill. App. 3d 504, 561 N.E.2d 744 (1990) (jury properly told it could find defendant\u2019s failure to discover infection neither aggravated nor caused the damage to plaintiffs hip); Burge v. Morton, 99 Ill. App. 3d 266, 425 N.E.2d 539 (1981) (proper to tell jury penicillin-resistant bacterium and not defendant dentist\u2019s acts could be the sole proximate cause of plaintiffs infection).\nWe recognize Freeman v. Petroff, 288 Ill. App. 3d 145, 156, 680 N.E.2d 453 (1997), a fifth district case, refers to \u201cthe need to establish a standard of care and a deviation therefrom by a nonparty in order to determine whether there is an evidentiary basis to support giving the second paragraph of IPI Civil 3d No. 12.04.\u201d\nNo such suggestion is contained in Ellig, 237 Ill. App. 3d at 408: \u201c[T]he jury could have reasonably found, based on the evidence presented, that someone else was the sole proximate cause of the baby\u2019s injuries.\u201d\nIn Wojcik, 299 Ill. App. 3d at 974, we said:\n\u201c[A] defendant has the right not only to rebut evidence tending to show that his acts are negligent and the proximate cause of claimed injuries, but he also has the right to endeavor to establish by competent evidence that the conduct of a third person is the sole proximate cause.\u201d\nIn Wojcik, two defense experts testified the failure of St. Anthony\u2019s Hospital, a nonparty, to discontinue the plaintiffs IV line was the sole proximate cause of her injury. Our examination of the record in that case reveals neither witness said the hospital\u2019s actions were professionally negligent or deviated from the appropriate standard of care. We held the evidence was sufficient to justify the sole proximate cause instruction.\nWe now hold the second paragraph of IPI Civil 3d No. 12.04 may be given the jury in a medical malpractice case even though no expert testifies the \u201cconduct\u201d of the third person nonparty was professionally negligent. Any such requirement would shift the burden of proof to the defendant. The \u201claw in no way\u201d does that. Leonardi, 168 Ill. 2d at 94. Of course, we do not suggest the sole proximate cause instruction is justified in all cases. There must be \u201csome evidence\u201d to support it. Leonardi, 168 Ill. 2d at 101.\nPutting aside for a moment our conclusions concerning a nonparty\u2019s \u201cconduct,\u201d we find there was sufficient evidence in this case from which the jury could have concluded Dr. Ahstrom was negligent.\nDr. Ahstrom was the only orthopedic surgeon on the case from November 16 to December 5, 1986. During that time, contrary to the views of every other doctor in the case, he resisted removal of the prosthesis and successfully urged family members to resist it. As of November 24, 1986, Dr. Ahstrom did not believe the prosthesis needed to be removed.\nDr. Marquardt, another of John\u2019s treating physicians, told the jury he had no doubt that John \u201cneeded to be quickly taken to the operating room\u201d for removal of the prosthesis: \u201cThis was the only alternative this gentleman had in hopes of recovering from what appeared to be a life-threatening condition.\u201d\nDr. Orth, who saw John on November 12, 1986, said he never heard of an orthopedist saying he would not remove a prosthesis when many of his colleagues tell him it has to come out or the patient is doomed. It was Dr. Orth\u2019s opinion as of November 12, 1986, to a reasonable medical certainty, that if the hip were not removed John was going to die.\nFurther, there were these questions and answers on cross-examination of Dr. Orth:\n\u201cDEFENSE COUNSEL: Now, doctor, if an orthopedic surgeon refuses to believe, such as in the case of Mr. McDonnell, that the prosthesis is the bleeding [sic] ground for the bacteria and, therefore, refuses to consider the opinions of the medicine [sic] people who are saying that the patient should be taken to surgery for removal of the prosthesis and that the patient was fit to undergo the surgery, that would be a departure from the standard of care, would it not?\nDR. ORTH: Yes.\u201d\nDr. Gump was asked whether it was his opinion that Dr. Ahstrom \u201cerred grievously\u201d in not promptly removing that prosthetic hip. His answer: \u201cI have indicated I thought that it could have been done sooner rather than later, yes.\u201d\nAnd then:\n\u201cDEFENSE COUNSEL: And do you feel that Dr. [Ahstrom\u2019s] resistance to removal of the prosthesis made management of [John\u2019s] care an impossibility while he was on Dr. Ostrom\u2019s [sic] service; isn\u2019t that true?\nDR. GUMP: Well, he was actually \u2014 yes, Dr. McPartlin\u2019s service. I think it made it more difficult for Dr. McPartlin, yes.\u201d\nIt is the nature and extent of all the evidence, not the use of formulaic words, that establish a nonparty\u2019s professional negligence. See Dominguez v. St. John\u2019s Hospital, 260 Ill. App. 3d 591, 595, 632 N.E.2d 16 (1994) (phrase \u201cwithin a reasonable degree of medical certainty\u201d is not required where expert\u2019s level of certainty is otherwise established by his testimony).\nA jury does not have to hear the words \u201cdeviation from standard of care\u201d before it decides a nonparty doctor\u2019s conduct was negligent. That would be an exercise of form over substance. Those words were not used by expert witnesses in Wojcik, 299 Ill. App. 3d at 975, when they testified the nonparty hospital\u2019s conduct was the sole proximate cause of the plaintiffs injury.\nIf this jury did find Dr. Ahstrom\u2019s negligence was the sole proximate cause of John\u2019s injury, its conclusion would be supported by the record.\n2. Contributory Negligence and Mitigation of Damages\nMoira contends the trial court erred by allowing evidence and jury instructions concerning John\u2019s refusal to undergo hip surgery to cure the infection. Moira also contends the trial court erred in allowing evidence and jury instructions concerning her and her daughter Nula\u2019s contributory negligence toward John. Because these issues present related questions, we address them together.\nUnder the Survival Act (see Ill. Rev. Stat. 1985, ch. 110\u00bd, par. 27\u20146 (now 755 ILCS 5/27\u20146 (West 1996))), the administrator of the decedent\u2019s estate seeks to recover for any statutory or common law claims the decedent accrued before his death. Bryant v. Kroger Co., 212 Ill. App. 3d 335, 336-37, 570 N.E.2d 1209 (1991).\nUnder the Wrongful Death Act (see Ill. Rev. Stat. 1985, ch. 70, pars. 1 through 2 (now 740 ILCS 180/1 et seq. (West 1996))), the decedent\u2019s next of kin seek to recover their own pecuniary losses caused by the decedent\u2019s death. Kessinger v. Grefco, Inc., 251 Ill. App. 3d 980, 982-83, 632 N.E.2d 946 (1993).\nIn the survival claim, the deceased\u2019s contributory negligence may reduce the estate\u2019s damages. It does not defeat the action. In the wrongful death claim, the contributory negligence of the deceased\u2019s next of kin can eliminate any damage recovery by that person, but it does not defeat the action. See Biundo v. Christ Community Hospital, 104 Ill. App. 3d 670, 674, 432 N.E.2d 1293 (1982) (\u201ccontributory negligence of next of kin under the Wrongful Death Act [citation] does not bar recovery but simply precludes such heir from recovery\u201d).\nOn the survival count, the court instructed the jury:\n\u201cAs to the survival count a patient must exercise ordinary care to follow reasonable medical advice. A physician is not liable for the consequences of a patient\u2019s failure to do so. A patient\u2019s failure to use ordinary care in obtaining treatment or in following instructions does not absolve the negligence, it only absolves the physician from any damage caused by the patient\u2019s failure to exercise ordinary care to follow reasonable medical advice.\u201d\nSee IPI Civil 3d No. 105.08.\nOn the wrongful death count, the court instructed the jury:\n\u201cUnder the wrongful death count it was the duty of [the] plaintiffs *** before and at the time of the occurrence to use ordinary care for the safety of [John]. The above plaintiffs are contributorily negligent if he or she failed to use ordinary care for the safety of [John], And the failure to use such ordinary care was the proximate cause of the death of [John],\nThe contributory negligence of any of the above plaintiff [sic] bars that individual or those individuals who contributed to cause the death of [John] from recovery for pecuniary damages under the wrongful death count.\nHowever, that individual or those individuals who are not contributorily negligent may be awarded pecuniary damages to the extent they\u2019ve been proven to have suffered by that individual or those individuals.\u201d\nSee IPI Civil 3d No. 10.03.\nThe court also instructed:\n\u201cIf you find that [Moira] or [Nula] negligently contributed to cause the death of the decedent by failing to follow reasonable medical advice the conduct of that person or those persons does not bar recovery by the plaintiff. But in any award you may make you may not include damages for any pecuniary injury suffered by that person. The issue of contributory negligence does not apply to Ann Doherty [Ann] and Richard McDonnell [Richard].\u201d\nThe court posed two special interrogatories to the jury: \u201c[D]o you find that [Moira] failed to follow reasonable medical advice and that in doing so she was contributorily negligent[?]\u201d and \u201c[D]o you find that [Nula] failed to follow reasonable medical advice and in doing so she was contributorily negligente?]\u201d\nThe special interrogatories did not test the jury\u2019s general verdict (Schultz v. Republic Insurance Co., 124 Ill. App. 3d 342, 346, 464 N.E.2d 767 (1984)), but the jury\u2019s answers provide us some insight into their verdict.\nThe jury found Moira was, but Nula was not, contributorily negligent. Thus, Moira\u2019s negligence meant she could not recover for her pecuniary injuries, and Nula\u2019s lack of negligence meant she could recover for her pecuniary injuries. Contributory negligence never was an issue for Ann and Richard. But none of the survivors recovered because the jury returned a general verdict for the defendants. Contributory negligence in this case relates to damages, not liability. Fetzer v. Wood, 211 Ill. App. 3d 70, 75, 569 N.E.2d 1237 (1991). Because the jury reached a verdict in favor of the defendants, it obviously did not address the issue of contributory negligence. Fisher v. Slager, 201 Ill. App. 3d 480, 489, 559 N.E.2d 118 (1990); Cairns v. Hansen, 170 Ill. App. 3d 505, 512, 524 N.E.2d 939 (1988); Lebrecht v. Tuli, 130 Ill. App. 3d 457, 476, 473 N.E.2d 1322 (1985).\nIllinois law is clear: a plaintiff has no duty to mitigate his damages by submitting to serious or major surgery. Hall v. Dumitru, 250 Ill. App. 3d 759, 765, 620 N.E.2d 668 (1993); see Lapidus v. Hahn, 115 Ill. App. 3d 795, 450 N.E.2d 824 (1983); Montgomery v. Terminal R.R. Ass\u2019n, 73 Ill. App. 3d 650, 392 N.E.2d 77 (1979); Rosenstein v. Chicago Transit Authority, 12 Ill. App. 3d 1089, 299 N.E.2d 376 (1973); Howard v. Gulf, Mobile & Ohio R.R. Co., 13 Ill. App. 2d 482, 142 N.E.2d 825 (1957); see also IPI Civil 3d No. 33.01, Comment.\nWhile John\u2019s hip surgery was certainly serious or major, the issue of whether John failed to mitigate damages by refusing this surgery is irrelevant to either the survival or wrongful death count. The jury found the defendants were not liable and thus did not reach the issue of damages.\n\u201cInitially, before the jury reaches the question of damages, it must decide liability. Here, the jury returned a verdict in favor of defendants. It did not reach the damages issue; therefore the issue is not pertinent to the appeal.\u201d Lebrecht, 130 Ill. App. 3d at 476.\nSee Karr v. Noel, 212 Ill. App. 3d 575, 584, 571 N.E.2d 271 (1991); Fisher, 201 Ill. App. 3d at 489; Cairns, 170 Ill. App. 3d at 512.\nMoira contends, however, this mitigation of damages issue infected the jury\u2019s liability verdict. In Hall, the court did note, \u201c \u2018there may be cases in which errors which go to the question of damages may be so pervasive and prejudicial as to create the likelihood that they may have affected a jury\u2019s decision on the issue of liability.\u2019 \u201d Hall, 250 Ill. App. 3d at 766, quoting Mulvey v. Illinois Bell Telephone Co., 53 Ill. 2d 591, 599-600, 294 N.E.2d 689 (1973). The court held evidence the plaintiff refused to undergo a serious operation prejudicially shifted the jury\u2019s attention away from the defendant\u2019s alleged medical malpractice. Hall, 250 Ill. App. 3d at 766.\nWe believe Hall stands alone among Illinois cases on this issue, and we refuse to assume jurors are so easily distracted. Evidence that John refused to undergo a dangerous operation was inadmissible to prove failure to mitigate damages. But this evidence affected only mitigation of damages. Any error admitting this evidence or instructing on it became harmless when the jury found for the defendants on liability.\nCONCLUSION\nThis may not have been a perfect trial, but our review of the record persuades us the plaintiff received a fair trial, free from unfair prejudice or harmful error. Further, the trial court did not abuse its discretion when it denied the plaintiffs motion for new trial. We affirm the judgments entered on behalf of the defendants.\nAffirmed.\nSOUTH, RJ., and HOFFMAN, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Corboy & Demetrio, EC., of Chicago, for appellant.", "William F. Cunningham and Maura W. Moore, both of Cunningham, Meyer & Vedrine, of Wheaton, for appellees Richard F. McPartlin III, and Richard F. McPartlin III, Ltd.", "Hinshaw & Culbertson, of Chicago (E. Michael Kelly, Stephen R. Swofford, and Christine L. Olson, of counsel), for appellees Thomas Mullin, Jr., and Du Page Emergency Physicians, Ltd." ], "corrections": "", "head_matter": "MOIRA McDONNELL, Ex\u2019x of the Estate of John G. McDonnell, Deceased, Plaintiff-Appellant, v. RICHARD F. McPARTLIN III et al., DefendantsAppellees.\nFirst District (4th Division)\nNo. 1\u201497\u20141822\nOpinion filed February 25, 1999.\nCorboy & Demetrio, EC., of Chicago, for appellant.\nWilliam F. Cunningham and Maura W. Moore, both of Cunningham, Meyer & Vedrine, of Wheaton, for appellees Richard F. McPartlin III, and Richard F. McPartlin III, Ltd.\nHinshaw & Culbertson, of Chicago (E. Michael Kelly, Stephen R. Swofford, and Christine L. Olson, of counsel), for appellees Thomas Mullin, Jr., and Du Page Emergency Physicians, Ltd." }, "file_name": "0391-01", "first_page_order": 409, "last_page_order": 420 }