{ "id": 415354, "name": "VERONICA BRADY, as Adm'r of the Estate of Paul B. Brady, Deceased, Plaintiff-Appellant, v. THOMAS McNAMARA, Defendant-Appellee", "name_abbreviation": "Brady v. McNamara", "decision_date": "1999-12-22", "docket_number": "No. 1\u201498\u20140801", "first_page": "542", "last_page": "551", "citations": [ { "type": "official", "cite": "311 Ill. App. 3d 542" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "574 N.E.2d 776", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5296992 ], "weight": 14, "year": 1991, "pin_cites": [ { "page": "321" }, { "page": "320" }, { "page": "321" }, { "page": "322" }, { "page": "324", "parenthetical": "Reinhard, PJ., dissenting" }, { "page": "324" }, { "page": "324" }, { "page": "324" }, { "page": "325" }, { "page": "325" }, { "page": "325" }, { "page": "325" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0314-01" ] }, { "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": 4, "year": 1990, "pin_cites": [ { "page": "489" }, { "page": "489" }, { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0480-01" ] }, { "cite": "625 N.E.2d 343", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274306 ], "weight": 7, "year": 1991, "pin_cites": [ { "page": "1033" }, { "page": "1034" }, { "page": "1035" }, { "page": "1035" }, { "page": "1035" }, { "page": "1035" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/1031-01" ] }, { "cite": "253 Ill. App. 3d 122", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5422566 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "128" }, { "page": "128" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0122-01" ] }, { "cite": "171 Ill. App. 534", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2773590 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/ill-app/171/0534-01" ] }, { "cite": "235 Ill. App. 322", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3104295 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/ill-app/235/0322-01" ] }, { "cite": "95 Ill. App. 605", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5294937 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/ill-app/95/0605-01" ] }, { "cite": "92 Ill. App. 449", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5286117 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/ill-app/92/0449-01" ] }, { "cite": "628 N.E.2d 606", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "256 Ill. App. 3d 272", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384868 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "284" }, { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0272-01" ] }, { "cite": "657 N.E.2d 657", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 1058", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906736 ], "year": 1995, "pin_cites": [ { "page": "1068" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/1058-01" ] }, { "cite": "684 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 690", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456116 ], "year": 1997, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0690-01" ] } ], "analysis": { "cardinality": 836, "char_count": 23960, "ocr_confidence": 0.758, "pagerank": { "raw": 6.625605358004573e-08, "percentile": 0.4044550473792101 }, "sha256": "96c769e2a081051751f8119bda7ed9c2a9b99ff6a3ae308bab136bedb9f7ad9f", "simhash": "1:3bfa11ce6a6ec475", "word_count": 3909 }, "last_updated": "2023-07-14T20:30:26.081874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VERONICA BRADY, as Adm\u2019r of the Estate of Paul B. Brady, Deceased, Plaintiff-Appellant, v. THOMAS McNAMARA, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE CERDA\ndelivered the opinion of the court:\nPlaintiff, Veronica Brady, as administrator of the estate of Paul B. Brady, deceased, appeals after the entry of a jury verdict in favor of defendant Thomas McNamara, M.D. This medical malpractice action was brought to recover damages for a fractured hip which delayed treatment of the true illness of Paul B. Brady. Plaintiff alleged that the damages were caused by defendant\u2019s misdiagnosis and failure to prescribe appropriate drugs for Brady\u2019s brain tumors. Defendant withdrew his affirmative defense of contributory negligence prior to the start of trial.\nThe issue in this case is whether the trial court committed prejudicial error in giving Illinois Pattern Jury Instructions, Civil, No. 105.08 (3d ed. 1995) (hereinafter IPI Civil 3d No. 105.08) concerning mitigation of damages for Brady\u2019s failure to follow medical instructions prior to his fall. IPI Civil 3d No. 105.08 stated in part that a doctor is not liable for damages caused by a patient\u2019s failure to follow a doctor\u2019s instructions. Defendant withdrew a proposed jury instruction for contributory negligence. We reverse and remand.\nFACTS\nPlaintiff brought a complaint against McNamara, Alexian Brothers Medical Center, and four nurses, alleging personal injuries as a result of Brady falling and breaking his hip due to defendant\u2019s misdiagnosis and failure to prescribe appropriate drugs in September 1990. Plaintiff alleged that defendant wrongly concluded that Brady was suffering from cirrhosis of the liver (instead of cancer metastasized to the brain) and failed to administer the proper treatment. Allegedly as a result of the negligence, Brady fell while returning unsupervised from the washroom in a highly sedated state and suffered a fractured hip. The surgery on his hip delayed treatment of the true cause of the symptoms. Brady died before the complaint was filed.\nDefendant raised in his answer the affirmative defense that Brady was negligent in failing to comply with defendant\u2019s orders and the hospital\u2019s instructions to seek .assistance when Brady required to use the washroom or get out of bed. Defendant\u2019s affirmative defense further alleged that it was Brady\u2019s negligent act that was the sole proximate cause of the injuries suffered on September 19, 1990. The affirmative defense of contributory negligence was withdrawn prior to the start of the trial.\nAt trial there was evidence that on September 15, 1990, Brady went to see defendant with complaints of loss of equilibrium, unsteady gait, vomiting, and weight loss. Brady could not walk well without assistance. He reported having had lung cancer surgery in April 1990. His medical history included the drinking of six cans of beer a day and his last drink having been taken the day before.\nUpon defendant\u2019s recommendation, Brady was admitted to Al\u00e9xian Brothers Medical Center on September 16, 1990. Defendant\u2019s initial provisional diagnoses were alcoholic cerebellar degeneration, cirrhosis of the liver, and metastasized brain cancer. Defendant ordered various tests for Brady. Defendant ordered that Brady be assisted to the bathroom because of Brady\u2019s imbalance problem.\nAlthough defendant ordered Valium only as needed for Brady in case the patient developed symptoms of alcohol withdrawal, hallucination, delirium tremens or disorientation, the nurses gave Brady Valium on September 16 and 17, 1990. Defendant believed that the administration of Valium was inappropriate because there was no evidence that Brady experienced loss of orientation. Defendant ordered the Valium stopped on September 18, 1990; the last time Brady received Valium was at noon. According to defendant, the nursing charts showed no physical effect of the Valium on Brady. Brady always appeared alert and oriented and never confused to defendant whenever defendant saw Brady before the fall.\nBrady\u2019s wife, Catherine, testified that Brady was not disoriented and that he always was alert and coherent. The hospital records showed that Brady was alert and oriented at all times.\nBrady was also given Restoril, a short-acting sleep medicine, on September 16 and 17, 1990. Defendant does not believe that Restoril affected Brady\u2019s consciousness.\nOn September 19, 1990, at about 2:45 a.m., Brady fell in his hospital room. Brady told his wife that he had gotten out of bed without assistance and that he had fallen upon leaving the bathroom when the bathroom door fell away. The medical chart stated that Brady was alert after he fell.\nIn the fall, Brady fractured his hip, and surgery was required. The report of the orthopedic surgeon who treated Brady\u2019s fracture stated that Brady denied to him any loss of consciousness or dizziness at the time of the fall.\nA physician consultant who was brought into the case at some time after the fall prescribed the drug Decadron, which was used to reduce the swelling in the brain that caused Brady\u2019s loss of equilibrium.\nPlaintiffs expert, Dr. Nancy McIntosh, testified that she disagreed with the admitting diagnosis of cirrhosis of the liver and that the most likely cause of Brady\u2019s loss of balance was the two tumors that were ultimately found in Brady\u2019s brain. She believed that Valium was not an appropriate medication for Brady; it caused sedation and in high doses caused loss of balance. Her opinion was that the Valium worsened Brady\u2019s symptoms. She inferred from the hospital records that Brady did not remember things from moment to moment, but there was no reference in the nursing notes prior to the fall that he was confused. The drug Decadron would decrease confusion if the confusion was partially due to brain swelling.\nDr. Daniel Brown testified as an expert for defendant that defendant met all standards of care. Defendant had ordered a CT scan of Brady\u2019s head immediately upon admission. Brown believed that Brady was able to follow instructions, that Brady did not develop any disorientation from the Valium, that the Valium did not cause the fall, and that not giving Decadron did not cause the fall.\nPatricia Peterson, a registered nurse, testified that she was retained as an expert by Alexian Brothers Medical Center. Her opinion was that the Valium did not have any relationship to Brady\u2019s fall.\nAfter the conclusion of the testimony, defendant submitted IPI Civil 3d No. 105.08 at the jury instructions conference. The instruction is entitled \u201cOrdinary Care \u2014 Duty to Follow Instructions \u2014 Submit to Treatment \u2014 Mitigation of Damages \u2014 Professional Negligence.\u201d The instruction submitted stated:\n\u201cA patient must exercise ordinary care to follow reasonable medical instructions. 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 following instructions does not absolve the physician from any damages resulting from the physician\u2019s negligence. It only absolves the physician from any damages caused by the patient\u2019s failure to exercise ordinary care to follow reasonable medical instructions.\u201d\nPlaintiffs attorney objected to the instruction as an attempt to make Brady\u2019s contributory negligence an issue in the case. The trial court stated that the instruction was appropriate because the tort occurred the moment when the medications were given to Brady and not at the time of the fall. Defendant\u2019s attorney stated that he \u201cdid withdraw a contributory negligence [sic].\u201d The trial court ruled that it would give IPI Civil 3d No. 105.08.\nPlaintiff argued in closing argument that defendant incorrectly diagnosed and treated Brady and that defendant should have prescribed Decadron. Regarding the injuries to plaintiff, his attorney told the jury that for three months Brady had to walk with a cane or a walker and suffered pain due to his broken hip. In closing argument, plaintiff also requested damages for Dr. Schroeder\u2019s bill and for the surgery to his hip at a hospital.\nDefendant argued that Brady would not have hurt himself if Brady had complied with medical orders and that defendant was not liable for Brady\u2019s failure to follow instructions.\nIn addition to being given IPI Civil 3d No. 105.08, the jury was instructed that if it \u201cdecide[d] for the defendant on the question of liability, [it would] have no occasion to consider the question of damages.\u201d IPI Civil 3d No. 36.01.\nThe jury found in favor of defendant, and judgment was entered on October 15, 1997. After denial of plaintiff\u2019s posttrial motion, plaintiff appealed on March 6, 1998.\nDISCUSSION\nPlaintiff argues on appeal that the trial court erred in giving IPI Civil 3d No. 105.08 because (1) Brady\u2019s walking without assistance was not a failure to mitigate damages because his getting out of bed without assistance occurred before his fall; (2) the mitigation instruction raised the issue of Brady\u2019s contributory negligence although the affirmative defense of contributory negligence had been withdrawn; and (3) the instruction left the jury no choice but to find defendant not guilty because the instruction shifted the jury\u2019s attention away from defendant\u2019s conduct. Plaintiff concedes that there was no question that Brady left his bed without assistance.\nDefendant argues that (1) the instruction was appropriate because plaintiffs theory at trial was that defendant was negligent prior to the fall Gay misdiagnosing Brady\u2019s condition and by failing to prescribe appropriate medications) and that Brady\u2019s failure to follow instructions was a failure to mitigate his damages; and (2) because the jury found for defendant, the jury had no occasion to consider the issue of reduction of damages presented in IPI Civil 3d No. 105.08.\nAn instruction is justified if it is supported by some evidence in the record, and the trial court has discretion in deciding which issues are raised by the evidence. Bielicke v. Terminal R.R. Ass\u2019n, 291 Ill. App. 3d 690, 693, 684 N.E.2d 160 (1997). The trial court\u2019s determination as to what instruction should be given to the jury will not be reversed on review absent an abuse of discretion. Diaz v. Kelley, 275 Ill. App. 3d 1058, 1068, 657 N.E.2d 657 (1995). Reversible error occurs when the court instructs the jury on an issue that is not supported by the evidence. Savage v. Martin, 256 Ill. App. 3d 272, 284, 628 N.E.2d 606 (1993).\nThe \u201cNotes on Use\u201d to IPI Civil 3d No. 105.08 restrict the use of IPI Civil 3d No. 105.08:\n\u201cThis instruction applies only to those instances where the defendant claims that the plaintiff has failed to mitigate his damages by failing to use ordinary care in not seeking treatment or in not following the doctor\u2019s instructions concerning treatment.\u201d IPI Civil 3d No. 105.08, Notes On Use, at 305.\nThe comment to instruction IPI Civil 3d No. 105.08 provides in part:\n\u201cOnce an injury has occurred as a proximate result of medical negligence, the patient has a continuing duty to follow the instruction of physicians in order to mitigate his damages. Haering v. Spicer, 92 Ill. App. 449 (1900); Littlejohn v. Arbogast, 95 Ill. App. 605 (1901). A physician will not be held liable for any injuries resulting from the patient\u2019s failure to follow instructions, but the physician will continue to be responsible for the injury caused by his original professional negligence. Wesley v. Allen, 235 Ill. App. 322 (4th Dist. 1925); Krauss v. Ballinger, 171 Ill. App. 534 (1912).\u201d IPI Civil 3d No. 105.08, Comment, at 305.\nMitigation of damages is a distinct concept that is separate from contributory negligence. Grothen v. Marshall Field & Co., 253 Ill. App. 3d 122, 128 (1993). Contributory negligence involves circumstances where the plaintiffs negligence is a legally contributing cause of his harm if it is a substantial factor in bringing about his harm. Grothen, 253 Ill. App. 3d at 128. In contrast, the rule of mitigation of damages involves imposing a duty upon the injured party to exercise reasonable diligence and ordinary care in attempting to minimize his damages after injury has been inflicted. Grothen, 253 Ill. App. 3d at 128.\nIn Peoples Bank v. Damera, 220 Ill. App. 3d 1031, 625 N.E.2d 343 (1991), plaintiff alleged that the defendant psychiatrist was guilty of medical malpractice for discharging decedent from the psychiatric ward of a hospital and also for giving him a two-week supply of prescription medicine. After being discharged, decedent ingested all of the prescription drugs that he had been given with a bottle of wine and died as a result. The injury for which plaintiff sought recovery was the death of decedent.\nIn Damera the court gave jury instruction IPI Civil 2d No. 105.08 (2d ed. 1971), as modified, which stated:\n\u201c \u2018A patient is required to follow reasonable advice as to treatment. In addition, he must follow the doctor\u2019s instructions. A doctor is not hable for the consequences of the patient\u2019s failure to do so, unless you find that the patient was unable by reason of mental impairment to follow the doctor\u2019s instructions\u2019 \u201d (Emphasis in original.) Damera, 220 Ill. App. 3d at 1033.\nDamera held:\n\u201cWhen the only issue before the jury is defendant\u2019s liability, the court should not give IPI Civil 2d No. 105.08 because it concerns only the mitigation of damages assessed against defendant due to the comparative negligence of plaintiff. IPI Civil 2d No. 105.08 does not apply unless the jury is called upon to determine the relative percentages of negligence of both parties. The present case does not involve comparative negligence. Accordingly, we hold that the trial court erred in giving the jury IPI Civil 2d No. 105.08 as modified, because it addressed the issue of plaintiffs decedent\u2019s comparative negligence.\u201d (Emphasis in original.) Damera, 220 Ill. App. 3d at 1034.\nThe Damera case concluded that the jury instructions skewed the jury\u2019s focus from the conduct of the defendant physician to the conduct of the suicidal patient. Damera, 220 Ill. App. 3d at 1035. The court disagreed that the decedent\u2019s ability to follow instructions was a key issue in this case. Damera, 220 Ill. App. 3d at 1035. It held that the issue was totally irrelevant and that the instruction provided defendant with a complete affirmative defense premised upon an irrelevant issue. Damera, 220 Ill. App. 3d at 1035. The court held that the trial court\u2019s error in giving the instruction prejudiced plaintiff and required a new trial. Damera, 220 Ill. App. 3d at 1035.\nIn Fisher v. Slager, 201 Ill. App. 3d 480, 559 N.E.2d 118 (1990), the plaintiff brought wrongful death and survival actions against 11 doctors and hospitals. The facts stated in the case do not indicate whether the affirmative defense of contributory negligence was raised in the pleadings. The jury returned a verdict in favor of all defendants. The trial court gave the jury IPI Civil 2d No. 105.08. There was no comparative negligence instruction tendered to the court. There clearly was evidence that the patient failed to mitigate damages when he failed to undergo a medical procedure and when he declined therapy as an in-patient as recommended.\nOn appeal, the court indicated that IPI Civil 2d No. 105.08 is solely a damage-reducing instruction and IPI Civil 3d No. 45.07 (comparative negligence) is a damage-reducing verdict form. Fisher, 201 Ill. App. 3d at 489. The court held that the failure to give a comparative negligence jury instruction would be a nugatory error, if it were error. Fisher, 201 Ill. App. 3d at 489. The court pointed out that the jury was also instructed that, if it decided for the defendants, it would not have to consider the question of damages. Fisher, 201 Ill. App. 3d at 489.\nIn the case sub judice, there was no evidence that Brady failed to mitigate his damages after he fell and fractured his hip, whereas in Fisher there was evidence that the plaintiff failed to mitigate his damages. Also in this case, defendant withdrew his affirmative defense, whereas in Fisher the facts do not reveal whether an affirmative defense was pled. Therefore, we decline to conclude that we should also affirm the trial court.\nA medical malpractice case similar to the case sub judice is Aimonette v. Hartmann, 214 Ill. App. 3d 314, 574 N.E.2d 776 (1991). In that case, one of the defendants filed an affirmative defense alleging that plaintiff was contributorily negligent for part of his injuries. Plaintiff entered a hospital for tests. The next day plaintiff was discharged from the hospital because he had a vacation already scheduled. When plaintiff came back from his vacation, his breathing problems persisted. A few days later, he suffered a stroke while jogging. After he was released from a hospital, he entered a rehabilitation center. One of the defendant physicians testified that he told plaintiff to contact him when he returned from his vacation but that plaintiff failed to contact him. Also, plaintiff did not tell him about any numbness in his arm. Defendants withdrew instructions for comparative negligence. The jury returned a verdict in favor of all defendants. IPI. Civil 2d No. 105.08 (2d ed. 1971) was given to the jury.\nIPI Civil 2d No. 105.08 is basically similar to IPI Civil 3d No. 105.08, which was given in the case sub judice. The Aimonette court found that there were grounds for submitting a mitigation-of-damages instruction: the court stated that, before he suffered his stroke, plaintiff failed to report his new symptoms and did not return to see either of his physicians after his condition began to deteriorate. Aimonette, 214 Ill. App. 3d at 321.\nThe Aimonette court also stated that because the jury had been given IPI Civil 3d No. 36.01 (which states that if the jury decided in favor of a defendant on the question of liability it would have no occasion to consider the question of damages as to that defendant), the jury would only need to consider the mitigation instruction if one of the defendants was found liable. Thus, the court reasoned, the jury had no reason to consider reducing plaintiffs damages. Aimonette, 214 Ill. App. 3d at 320. The court held that it was not error to give the mitigation-of-damages instruction. Aimonette, 214 Ill. App. 3d at 321. The court also affirmed the trial court\u2019s decision not to allow plaintiff to tender instructions on comparative negligence. Aimonette, 214 Ill. App. 3d at 322.\nThe dissent believed it was reversible error to give IPI Civil 2d No. 105.08 to the jury. Aimonette, 214 Ill. App. 3d at 324 (Reinhard, PJ., dissenting). We agree with the dissent. The dissent indicated that, when plaintiff\u2019s negligence is an issue, a comparative negligence instruction should be given because plaintiff\u2019s negligence can be a contributing cause of the injury. Aimonette, 214 Ill. App. 3d at 324. On the other hand, a mitigation instruction is solely a damage-reducing instruction that is inappropriate where the real question is whether the plaintiffs negligence was a contributing cause of a single injury. Aimonette, 214 Ill. App. 3d at 324. The dissent also pointed out that IPI Civil 2d No. 105.08 permits the mitigation of damages against a physician where the patient does not follow reasonable advice as to treatment or does not follow the physician\u2019s instructions subsequent to the injury caused by the earlier malpractice of the physician. Aimonette, 214 Ill. App. 3d at 324. The dissent stated that no injury occurred before the plaintiff suffered a stroke. Aimonette, 214 Ill. App. 3d at 325. The alleged failure to follow instructions occurred before the stroke and could only be used to compare plaintiffs negligence with that of defendants in order to determine the proximate cause of the injury. Aimonette, 214 Ill. App. 3d at 325.\nWe also agree with the dissent\u2019s statement that the plaintiffs failure to follow instructions could have been a contributing cause of the injury but that it did not aggravate an existing injury caused by defendant\u2019s negligence. Aimonette, 214 Ill. App. 3d at 325. The injury did not exist until plaintiff suffered a stroke. Aimonette, 214 Ill. App. 3d at 325. The Aimonette defendants argued to the jury that, even if the doctors were wrong, plaintiff still could not be entitled to recover because of his own conduct in not following the advice as to treatment and not following the doctor\u2019s instructions. The dissent argued that the improper use of IPI Civil 2d No. 105.08 to avoid liability confused plaintiff\u2019s duty to mitigate damages with the separate question of whether plaintiffs conduct was a contributing cause of the stroke which was the injury. Aimonette, 214 Ill. App. 3d at 325.\nIn our case, the patient\u2019s getting out of bed without assistance was not a failure to mitigate his damages. Brady\u2019s failure to abide by the order not to walk without assistance did occur after the allegedly negligent act of defendant in prescribing Valium instead of Decadron. However, walking without assistance occurred before the fall and before the fracture of the hip. The hip fracture was the injury proximately caused by the alleged malpractice for which damages were sought. The loss-of-balance problem put Brady at risk of falling if he walked unassisted. As defendant did not claim that Brady failed to mitigate his damages after the fall, IPI Civil 3d No. 105.08 was not applicable to this case.\nWe note that in closing argument to the jury, plaintiff did not request damages for the alleged negligent act of defendant in prescribing Valium instead of Decadron. Plaintiff only asked the jury to award him damages for the pain and suffering due to his broken hip and for his medical and hospital expenses. Clearly, the one injury that plaintiff claimed in this case was the broken hip.\nIn the final argument to the jury, the defendant argued that the issue in the case was the conduct of the patient in disregarding the doctor\u2019s order not to get out of bed without assistance and that it was not a case of medical negligence. This conduct occurred before the fall.\nWhen defendant withdrew his affirmative defense, Brady\u2019s contributory negligence as a proximate cause of his fractured hip was no longer an issue. Brady\u2019s failure to follow the defendant\u2019s instructions occurred before the fall and therefore was not an issue. There was no evidence that any subsequent act or omission by Brady aggravated his hip injury. There was no evidence that Brady failed to mitigate damages for his hip injury. Brady\u2019s hip injury was treated after his fall.\nAs the only issue before the jury in this case was defendant\u2019s liability, the court should not have given IPI Civil 3d No. 105.08 because it covers only mitigation of damages assessed against defendant due to the comparative negligence of Brady. Comparative negligence is not an issue in this case. We hold that it was error to give the mitigation instruction because it covered the issue of Brady\u2019s comparative negligence before his fall and because there was no evidence to support the instruction to the jury. Savage, 256 Ill. App. 3d at 284.\nWe also find that submission of IPI Civil 3d No. 105.08 turned the jury\u2019s attention away from the conduct of the defendant physician to the conduct of Brady. This mitigation instruction furnished defendant with an affirmative defense that was based on the irrelevant issue of Brady\u2019s conduct. Therefore, we find that the error in giving this instruction to the jury prejudiced plaintiff and entitles her to a new trial.\nThe judgment of the trial court is reversed, and the cause is remanded for a new trial.\nReversed and remanded.\nBURKE and McBRIDE, JJ., concur.", "type": "majority", "author": "JUSTICE CERDA" } ], "attorneys": [ "James E Driscoll, EC., of Schaumburg (James F. Driscoll, of counsel), for appellant.", "Hickey, Driscoll, Kurfirst, Patterson & Helia, of Chicago (Edward J. Helia and Stephen Burriesci, of counsel), for appellee." ], "corrections": "", "head_matter": "VERONICA BRADY, as Adm\u2019r of the Estate of Paul B. Brady, Deceased, Plaintiff-Appellant, v. THOMAS McNAMARA, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1 \u2014 98\u20140801\nOpinion filed December 22, 1999.\nRehearing denied March 6, 2000. \u2014 Modified opinion filed March 8, 2000.\nJames E Driscoll, EC., of Schaumburg (James F. Driscoll, of counsel), for appellant.\nHickey, Driscoll, Kurfirst, Patterson & Helia, of Chicago (Edward J. Helia and Stephen Burriesci, of counsel), for appellee." }, "file_name": "0542-01", "first_page_order": 560, "last_page_order": 569 }