{ "id": 1208132, "name": "LUCIE LAMBIE, Mother and Next Friend of Chelsey Lambie, a Minor, Plaintiff-Appellant, v. JOEL SCHNEIDER, Defendant-Appellee", "name_abbreviation": "Lambie v. Schneider", "decision_date": "1999-06-11", "docket_number": "No. 4\u201498\u20140746", "first_page": "421", "last_page": "431", "citations": [ { "type": "official", "cite": "305 Ill. App. 3d 421" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "623 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "254-55" }, { "page": "255" } ], "opinion_index": 0 }, { "cite": "157 Ill. 2d 29", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778592 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "48" }, { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0029-01" ] }, { "cite": "454 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "372" }, { "page": "370" } ], "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482460 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1067" }, { "page": "1065" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/1065-01" ] }, { "cite": "618 N.E.2d 734", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "751" } ], "opinion_index": 0 }, { "cite": "249 Ill. App. 3d 1064", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5409785 ], "year": 1993, "pin_cites": [ { "page": "1089" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/1064-01" ] }, { "cite": "254 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "44 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891442 ], "year": 1969, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0132-01" ] }, { "cite": "410 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 1087", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3181366 ], "year": 1980, "pin_cites": [ { "page": "1098" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/1087-01" ] }, { "cite": "360 N.E.2d 1324", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "1332" } ], "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 630", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2975804 ], "year": 1977, "pin_cites": [ { "page": "641-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0630-01" ] }, { "cite": "547 N.E.2d 1345", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1349" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 664", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2513201 ], "year": 1989, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0664-01" ] }, { "cite": "652 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "1139" }, { "page": "1139" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 932", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258499 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "941" }, { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0932-01" ] }, { "cite": "452 N.E.2d 883", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "886" } ], "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 100", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482183 ], "year": 1983, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0100-01" ] }, { "cite": "483 N.E.2d 711", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "717-18" }, { "page": "718-19" }, { "page": "716-17" }, { "page": "716-17" } ], "opinion_index": 0 }, { "cite": "136 Ill. App. 3d 468", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564107 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "477-78" }, { "page": "478-79" }, { "page": "475-76" }, { "page": "475-76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0468-01" ] }, { "cite": "54 A.L.R4th 10", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1997, "pin_cites": [ { "page": "79-84" } ], "opinion_index": 0 }, { "cite": "698 N.E.2d 696", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "701" }, { "page": "701" }, { "page": "701-02" }, { "page": "701" } ], "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073571 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "277" }, { "page": "276" }, { "page": "277" }, { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0268-01" ] }, { "cite": "679 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1997, "pin_cites": [ { "page": "1209" }, { "page": "1209, 1213" }, { "page": "1212" }, { "page": "1209" }, { "page": "1213", "parenthetical": "\"We hold that the loss of chance concept, when properly analyzed, does not relax or lower plaintiffs' burden of proving causation\"" }, { "page": "1212" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544914 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "111" }, { "page": "111, 119" }, { "page": "117-18" }, { "page": "112" }, { "page": "120" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0095-01" ] }, { "cite": "667 N.E.2d 1088", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1093" } ], "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 903", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150142 ], "year": 1996, "pin_cites": [ { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0903-01" ] }, { "cite": "605 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "152 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602939 ], "year": 1992, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0432-01" ] } ], "analysis": { "cardinality": 1004, "char_count": 21353, "ocr_confidence": 0.762, "pagerank": { "raw": 8.647565894203992e-08, "percentile": 0.49131802664943014 }, "sha256": "8ea933f45924457ec732426c36d0e002abb2a96fe09ab03a9b8de73f9f66bed4", "simhash": "1:b394d098afc0c184", "word_count": 3508 }, "last_updated": "2023-07-14T20:21:49.676413+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LUCIE LAMBIE, Mother and Next Friend of Chelsey Lambie, a Minor, Plaintiff-Appellant, v. JOEL SCHNEIDER, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nOn March 7, 1987, Chelsey Lambie was born six weeks premature. On March 19, 1987, after Chelsey started to suffer left congestive heart failure, defendant, Dr. Joel Schneider, operated on her to repair a patent ductus arteriosus (PDA), an abnormal opening connecting the heart to one of the blood vessels leaving it. When Schneider could not locate the PDA, he placed Gore-Tex bands around the vessels leaving Chelsey\u2019s heart to decrease the abnormally high flow of blood from Chelsey\u2019s heart to her lungs. On December 6, 1993, plaintiff Lucie Lambie, mother and next friend of Chelsey, brought a medical malpractice action against defendant. On May 5, 1998, a jury returned a verdict in favor of defendant. Plaintiff appeals, arguing the trial court erred by not giving her tendered instruction on \u201cincreased risk of harm,\u201d by refusing to instruct the jury so as to correct a misstatement of the evidence by defense counsel in opening and closing argument, and by refusing to excuse one juror for cause. We affirm.\nWhen Chelsey was born, she was in respiratory distress and immediately came under the care of Dr. Carlos Chua, a neonatologist at the High Risk Center at St. John\u2019s Hospital in Springfield, Illinois (St. John\u2019s). Within days of her birth, Chelsey developed a heart murmur and Dr. Patricia VonBehren, a pediatric cardiologist, was consulted. VonBehren concluded Chelsey had a PDA. Both VonBehren and Chua diagnosed Chelsey as also having congestive heart failure.\nAfter attempts to close the PDA with drugs failed, VonBehren recommended that Chelsey undergo surgery to close it. On March 19, 1987, defendant performed surgery on Chelsey to ligate the PDA. During the surgery, defendant could not find a PDA and chose to cut further into Chelsey\u2019s chest cavity to diagnose her problem. Defendant concluded Chelsey had a truncus arteriosus, a condition where the blood vessel carrying blood to the body merges with the blood vessel carrying blood to the lungs.\nDefendant testified he chose to place a band on each of Chelsey\u2019s two pulmonary arteries. Dr. Arnold Strauss, the pediatric cardiologist under whose care Chelsey came when she was subsequently transported to St. Louis, testified that banding had been used where there was some abnormal shunt. It constricts the flow of blood to the lungs until such time as a problem can be repaired. VonBehren testified she was consulted during the surgery. She understood the bands to be a temporary measure, to slow down the shunt for \u201ca short period of time.\u201d Dr. David Ott, a pediatric cardiovascular surgeon, and Dr. Thomas Spray, a cardiac surgeon at Children\u2019s Hospital in St. Louis (Children\u2019s), testified the bands were a temporary, palliative maneuver, to be used until the problem could be diagnosed and fixed. The parties presented conflicting opinions from these and other medical experts as to whether defendant was negligent in prolonging the surgery and cutting deeper into Chelsey in order to attempt a diagnosis and place the bands. After surgery, defendant consulted with all of Chelsey\u2019s treating physicians and concluded further diagnostic tests needed to be performed.\nAccording to Dr. Kenneth Barron, a cardiovascular surgeon called by plaintiff, Chelsey was then taken to Children\u2019s for more tests. According to VonBehren, defendant did not know of the transfer until the day it occurred. According to Dr. Kenneth Barron, a cardiovascular surgeon called by plaintiff, Chelsey\u2019s condition worsened after the surgery and before she got to St. Louis. Strauss described Chelsey as critically ill when she arrived in St. Louis. Chelsey could not breathe on her own and required a ventilator. Her pulmonary and tricuspid heart valves were leaking.\nChelsey now had a severe right heart failure, whereas she was only having mild left heart failure before the surgery. Barron testified the bands caused Chelsey\u2019s right heart failure. Dr. Anne Wedemeyer, a pediatric cardiologist called by plaintiff, agreed. She testified that if defendant had just backed out of the operation when he could not find the PDA, Chelsey\u2019s left heart failure would have continued, but there would have been no right heart failure.\nAt Children\u2019s, a heart catheterization diagnosed Chelsey\u2019s condition as either a very abnormal PDA or an aorticopulmonary (AP) window. On March 20, 1987, Spray performed surgery to correct the abnormal PDA or AP window, and to remove the bands. Spray testified he did not remember exactly how long the bands were on, but as far as he could recall, they were on a few days. Spray testified the bands were not too tight. His notes made no mention of injury due to the bands. However, Spray testified he did not want the bands on any longer than they were on. He testified the tricuspid and pulmonary valves were leaking, but that some loss of valvular competence was normal for this situation.\nChelsey also had damage to her phrenic nerve. Strauss, Wedemeyer, and Barron testified defendant\u2019s additional dissection during the March 19, 1987, surgery increased the risk of phrenic nerve damage. Spray testified phrenic nerve damage was a well-known surgical complication that often occurred without negligence. All agreed the Springfield operation, not the later operation in St. Louis, was the likely cause of the damage.\nAccording to Wedemeyer, damage to the phrenic nerve can cause paralysis of the left diaphragm. When Chelsey\u2019s diaphragm was paralyzed, it moved upward into her chest cavity, preventing her lung from expanding properly. According to Strauss, a paralyzed diaphragm almost always requires a breathing machine, which increases the risk of infection. According to Wedemeyer, Chelsey could not be weaned off of the respirator, causing repeated respiratory infections and pneumonia. Additionally, the displaced lung caused Chelsey\u2019s esophagus and stomach to be distorted to the point that she had difficulty keeping food down. Ultimately, Chelsey had surgery in St. Louis to correct her paralyzed diaphragm.\nAs Chelsey got older, it became apparent that she suffered hearing loss in both ears. The parties presented conflicting testimony from medical experts on whether Chelsey\u2019s hearing loss was caused by medicines, including gentamicin, an antibiotic that can harm the inner ear. Gentamicin was not required by the March 19, 1987, surgery, but by complications arising after that surgery.\nOn December 6, 1993, plaintiff filed suit, alleging defendant\u2019s negligence proximately caused Chelsey to suffer unnecessary pain and to remain greatly disordered and weakened. The trial began with jury selection on April 27, 1998. Plaintiff used a peremptory strike on the morning of April 28, 1998, to excuse the first alternate juror, whose brother\u2019s open heart surgery had been performed by defendant. This alternate juror was not replaced. Defendant informed the court he would not accept a verdict by less than 12 jurors.\nOn April 29, 1998, juror Ronald Howell met in chambers with the parties\u2019 counsel and the trial judge. Howell stated that defendant had performed open heart surgery on his father-in-law 17 years earlier. Howell stated his father-in-law was again having heart problems and that he learned the night before that if his father-in-law has surgery again, defendant had been selected to perform it. In response to the trial judge\u2019s questions, Howell stated he believed he could still decide the case on its merits without feeling any bias one way or the other about the doctor. Neither counsel asked Howell any questions to determine the nature of his father-in-law\u2019s problems or the nature of his relationship with his father-in-law.\nThe trial judge allowed Howell to remain on the jury, provided that, if the father-in-law did, in fact, receive surgery from defendant during the trial, the juror was to inform the court. The trial went forward, and the above medical expert testimony was heard. On May 5, 1998, the jury returned a verdict in favor of defendant.\nPlaintiff first argues the trial court erred by failing to give her tendered jury instruction on increased risk of harm. Proximate cause has two components: (1) cause in fact and (2) legal cause. Legal cause is a policy decision that limits how far a defendant\u2019s legal responsibility can be extended for conduct that did, in fact, cause plaintiff harm. Cause in fact is established when a reasonable degree of certainty exists that defendant\u2019s conduct did, in fact, cause plaintiffs injury. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455, 605 N.E.2d 493, 502 (1992); Yager v. Illinois Bell Telephone Co., 281 Ill. App. 3d 903, 909, 667 N.E.2d 1088, 1093 (1996). Cause in fact becomes impossible to prove if a plaintiff suffers injury after he receives medical treatment when he has less than a 50% chance of recovery or survival.\nTo cure this problem in proving cause in fact, the supreme court adopted the \u201clost chance\u201d doctrine in Holton v. Memorial Hospital, 176 Ill. 2d 95, 111, 679 N.E.2d 1202, 1209 (1997). The supreme court held that a plaintiff may recover, even if he has less than a 50% chance of survival or recovery, when malpractice deprives him of a chance to survive or recover from a health problem, lessens the effectiveness of treatment, or increases the risk of an unfavorable outcome. Holton, 176 Ill. 2d at 111, 119, 679 N.E.2d at 1209, 1213. To recover, the plaintiff must only show with a reasonable degree of medical certainty that the malpractice lessened the effectiveness of the treatment to plaintiff. See Holton, 176 Ill. 2d at 117-18, 679 N.E.2d at 1212.\nPlaintiff argues she was entitled to a \u201clost chance\u201d instruction here. She argues the trial court erred by rejecting her tendered instruction No. 17, which read:\n\u201cA physician who undertakes to render medical services to a patient which he should recognize as necessary for the protection of the patient is subject to liability to the patient for physical harm resulting from this failure to exercise reasonable care to perform his medical services, if his failure to exercise such care increases the risk of harm to the patient.\u201d\nThis instruction is not found in the Illinois Pattern Jury Instructions, Civil (3d ed. 1995) (hereinafter IPI Civil 3d). It is based on section 323(a) of the Restatement (Second) of Torts, which states, in pertinent part:\n\u201cOne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other\u2019s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if\n(a) his failure to exercise such care increases the risk of such harm ***.\u201d Restatement (Second) of Torts \u00a7 323(a), at 135 (1965) (hereinafter Restatement).\nPlaintiff argues adding the bands increased the risk of phrenic nerve injury by increasing the duration and scope of the March 19, 1987, surgery.\nThe court rejected plaintiffs instruction for two reasons. First, it believed the tendered instruction would cause unnecessary confusion. Second, it believed the other instructions adequately instructed the jury on the issue of proximate cause.\nEvery litigant is entitled to have the jury instructed as to the law governing the case, but departure from approved pattern instructions requires careful scrutiny since nonpattern instructions should be used cautiously and only when necessary to provide a fair trial. Even if an instruction correctly states the law, it must be sufficiently clear so as not to confuse or mislead the jury and must not unduly emphasize any part of the matter. If the jury instructions fairly and accurately state the law, reversal is not required even though the jury may have been instructed in an alternative manner that would have been equally acceptable. Henry v. McKechnie, 298 Ill. App. 3d 268, 277, 698 N.E.2d 696, 701 (1998).\nPlaintiff notes the following language from this district\u2019s decision in Henry:\n\u201cIn cases discussing jury instructions on the lost chance doctrine, the courts have variously required a finding of probability of causation, a finding of substantial possibility of a better result, language based on section 323 of the Restatement of Torts, or modifying the substantial factor formula for causation.\u201d (Emphasis added.) Henry, 298 Ill. App. 3d at 276, 698 N.E.2d at 701, citing Annot., J. Hodson, Medical Malpractice: \u201cLoss of Chance\u201d Causality, 54 A.L.R4th 10, 79-84 (1987 & Supp. 1997).\nPlaintiff argues that because her tendered instruction was based on section 323 of the Restatement, it should have been allowed.\nPlaintiff misreads Henry. The above language was based on a section of the Hodson article that summarized other jurisdictions\u2019 approaches to jury instructions on the \u201clost chance\u201d doctrine. The quoted language was intended as a summary of other states\u2019 approaches to this issue, not as a statement of Illinois law.\nIn fact, Henry rejected instructions based on section 323(a) of the Restatement. Prior to Holton, in Curry v. Summer, 136 Ill. App. 3d 468, 483 N.E.2d 711 (1985), this district affirmed a trial court\u2019s denial of an instruction based on section 323(a). Curry reasoned that section 323(a) contemplates that the normal proximate cause analysis will still be applied to determine if a defendant is liable. However, if used as an instruction, the \u201cresulting from\u201d language of section 323(a) could be misinterpreted to mean that a defendant is liable whenever he increases the risk of harm to plaintiff. Curry, 136 Ill. App. 3d at 477-78, 483 N.E.2d at 717-18. Curry also questioned the \u201clost chance\u201d theory in general. Curry, 136 Ill. App. 3d at 478-79, 483 N.E.2d at 718-19.\nHolton overruled the part of Curry questioning the \u201clost chance\u201d theory. However, the Holton opinion noted that this was dicta in Curry (Holton, 176 Ill. 2d at 112, 679 N.E.2d at 1209), and did not reach the issue of whether Curry correctly rejected instructions based on section 323(a) of the Restatement. In Henry, decided after Holton, this district reaffirmed Curry and again rejected a jury instruction based on section 323(a) of the Restatement, allowing recovery for an increased risk of harm \u201cresulting from\u201d the defendant\u2019s conduct. Henry, 298 Ill. App. 3d at 277, 698 N.E.2d at 701-02.\nWhile the \u201clost chance\u201d doctrine eliminates a problem of demonstrating \u201ccause in fact,\u201d it does not eliminate the requirement that the plaintiff prove defendant\u2019s conduct was the legal cause of his injury. Cf. Holton, 176 Ill. 2d at 120, 679 N.E.2d at 1213 (\u201cWe hold that the loss of chance concept, when properly analyzed, does not relax or lower plaintiffs\u2019 burden of proving causation\u201d). A malpractice defendant cannot be held liable if the injury could not have been foreseen or reasonably anticipated as the probable result of an act of negligence. See Nichelson v. Curtis, 117 Ill. App. 3d 100, 105, 452 N.E.2d 883, 886 (1983).\nTherefore, even if the \u201clost chance\u201d doctrine is accepted, the language of section 323(a) of the Restatement is still misleading in that it indicates a defendant may be found liable for any increased risk \u201cresulting from\u201d his conduct, regardless of whether that increased risk is foreseeable. While plaintiff attempts to distinguish the instruction tendered here from the instruction at issue in Henry, both instructions contain this language. The instructions tendered here also require the jury to define for itself what \u201csubject to liability\u201d means. This absolute language also suggests the jury could find defendant liable without finding his conduct was the legal cause of plaintiff\u2019s injury.\nPlaintiff argues Henry is distinguishable from this case because the Henry opinion noted that no one argued the IPI Civil 3d instructions actually given did not accurately state the law (Henry, 298 Ill. App. 3d at 277, 698 N.E.2d at 701). Plaintiff makes such an argument here. The jury here was given the \u201clong form\u201d proximate cause instruction in IPI Civil 3d No. 15.01. In Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932, 941, 652 N.E.2d 1132, 1139 (1995), the court held that the \u201cshort form\u201d IPI Civil 3d proximate cause instruction adequately informed the jury of the applicable law. See also Curry, 136 Ill. App. 3d at 475-76, 483 N.E.2d at 716-17. Hajian concluded that, while an instruction that properly sets out the \u201clost chance\u201d rule may be appropriate, where no such instruction is submitted without technical defects, the IPI Civil 3d proximate cause instruction is adequate. Hajian, 273 Ill. App. 3d at 941, 652 N.E.2d at 1139. Though Holton did not address this issue directly, Hajian was cited with approval in the Holton decision. Holton, 176 Ill. 2d at 118, 679 N.E.2d at 1212. While the \u201cshort form\u201d proximate cause instruction was given in Hajian and Curry, Curry suggested the \u201clong form\u201d instruction given here is actually preferable for a \u201clost chance\u201d case. Curry, 136 Ill. App. 3d at 475-76, 483 N.E.2d at 716-17.\nPlaintiff next argues defense counsel should not have been allowed to argue in its opening and closing statements that defendant intended to remove the bands within a couple days. In opening argument, counsel is given wide latitude, but he may not make remarks that he does not intend to prove or cannot prove. Augenstein v. Pulley, 191 Ill. App. 3d 664, 670, 547 N.E.2d 1345, 1349 (1989). In closing argument, counsel may make a fair comment upon the evidence, present the evidence in the light most favorable to his case, and draw inferences from the evidence. However, he may not misrepresent the evidence or argue facts not in evidence. Schwedler v. Galvan, 46 Ill. App. 3d 630, 641-42, 360 N.E.2d 1324, 1332 (1977).\nAny error was harmless. Plaintiff is not entitled to a new trial now unless the error prejudiced the rights of a party and a reasonable basis supports a conclusion that, absent the error, the verdict might have been different. Khatib v. McDonald, 87 Ill. App. 3d 1087, 1098, 410 N.E.2d 266, 275 (1980). The length of time the bands were intended to have been in place has limited relevance because the bands were, in fact, removed in less than 48 hours. The bands were placed on Chelsey on March 19, 1987, and removed March 20, 1987. The risk to Chelsey\u2019s phrenic nerve was the same regardless of how long the defendant intended the bands to be in place. Any remaining, improper inference was cured when the trial court instructed the jury that arguments of counsel were not evidence and, if the statement was wrong, the jurors should disregard it. See Bruske v. Arnold, 44 Ill. 2d 132, 138, 254 N.E.2d 453, 457 (1969); Brooke Inns, Inc. v. S&R Hi-Fi & TV, 249 Ill. App. 3d 1064, 1089, 618 N.E.2d 734, 751 (1993).\nFinally, plaintiff argues she was denied a fair trial because the trial court declined to excuse juror Howell for cause when he told the court that his father-in-law had had heart surgery performed by the defendant, that his father-in-law\u2019s condition was deteriorating, and that, if his father-in-law needed surgery again, he would probably return to defendant. Howell told the judge he did not believe this would bias him.\nThe trial court has great discretion in determining whether to excuse a prospective juror for cause. Great weight is given to a prospective juror\u2019s statement under oath that he can lay aside matters that might indicate bias and that he can render a verdict based on the evidence. Marcin v. Kipfer, 117 Ill. App. 3d 1065, 1067, 454 N.E.2d 370, 372 (1983). Plaintiff points to nothing in the appellate record to show Howell\u2019s actual bias.\nIn Roach v. Springfield Clinic, 157 Ill. 2d 29, 623 N.E.2d 246 (1993), the plaintiffs, as in this case, contended, pursuant to Marcin, 117 Ill. App. 3d at 1065, 454 N.E.2d at 370, there was bias per se. Marcin had held a juror was biased per se if he was a patient of the defendant doctor. In Roach, it was disclosed during trial by a juror that his wife had been a patient of one of the defendant doctors and would return to him if she had future problems. The supreme court stated:\n\u201cThe determination of impartiality is not purely objective; it is proper for the court to consider a statement of the juror as evidence of his state of mind. ***\nMere suspicion of bias or impartiality is not evidence and does not disqualify a juror.\u201d Roach, 157 Ill. 2d at 48, 623 N.E.2d at 254-55.\nWhile a relationship between a juror and the defendant may give rise to impermissible bias in some circumstances, this should be determined on a case-by-case basis, not by a blanket rule. The supreme court in Roach refused to extend the Marcin holding to juror spouses who are defendant doctors\u2019 patients. Roach, 157 Ill. 2d at 48, 623 N.E.2d at 255. This case is comparable to Roach. The asserted relationship is more distant here, and no presumption of bias applies.\nFor all of the above reasons, we affirm.\nAffirmed.\nSTEIGMANN and GARMAN, JJ., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "John T. Papa (argued), of Callis, Papa, Jackstadt & Halloran, P.C., of Granite City, for appellant.", "David L. Drake (argued), of Drake, Narup & Mead, P.C., of Springfield, for appellee." ], "corrections": "", "head_matter": "LUCIE LAMBIE, Mother and Next Friend of Chelsey Lambie, a Minor, Plaintiff-Appellant, v. JOEL SCHNEIDER, Defendant-Appellee.\nFourth District\nNo. 4\u201498\u20140746\nArgued April 13, 1999.\nOpinion filed June 11, 1999.\nJohn T. Papa (argued), of Callis, Papa, Jackstadt & Halloran, P.C., of Granite City, for appellant.\nDavid L. Drake (argued), of Drake, Narup & Mead, P.C., of Springfield, for appellee." }, "file_name": "0421-01", "first_page_order": 439, "last_page_order": 449 }