{ "id": 1096627, "name": "KATHY KASS, Indiv. and as Mother and Next Friend of Kelly Kass, a Minor, Plaintiff-Appellee, v. RESURRECTION MEDICAL CENTER, Defendant (Elio Vento et al., Defendants-Appellants)", "name_abbreviation": "Kass v. Resurrection Medical Center", "decision_date": "2000-09-29", "docket_number": "No. 1-99-1297", "first_page": "1108", "last_page": "1114", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 1108" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "389 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "76 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984278 ], "year": 1979, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0019-01" ] }, { "cite": "671 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "173 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147627 ], "year": 1996, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0273-01" ] }, { "cite": "697 N.E.2d 452", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 702", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910207 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "710" }, { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0702-01" ] }, { "cite": "627 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "255 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2987529 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/0352-01" ] }, { "cite": "403 N.E.2d 743", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 107", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5555555 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0107-01" ] }, { "cite": "357 N.E.2d 632", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2721986 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "782" }, { "page": "782" }, { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0779-01" ] }, { "cite": "603 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "A trial court's decision to grant or deny a new trial will not be overturned unless the reviewing court finds the trial court clearly abused its discretion" } ], "opinion_index": 0 }, { "cite": "151 Ill 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "year": 1992, "pin_cites": [ { "page": "455", "parenthetical": "A trial court's decision to grant or deny a new trial will not be overturned unless the reviewing court finds the trial court clearly abused its discretion" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0445-01" ] } ], "analysis": { "cardinality": 799, "char_count": 16024, "ocr_confidence": 0.764, "pagerank": { "raw": 4.60167783687625e-08, "percentile": 0.28813455919630837 }, "sha256": "eb9e840b0c09e6314ce15202bdea29ceb9948872f6527a5a28325b62faddd62d", "simhash": "1:f6ef93dc240825fd", "word_count": 2670 }, "last_updated": "2023-07-14T16:10:00.608787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KATHY KASS, Indiv. and as Mother and Next Friend of Kelly Kass, a Minor, Plaintiff-Appellee, v. RESURRECTION MEDICAL CENTER, Defendant (Elio Vento et al., Defendants-Appellants)." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThere is one issue in this case: Did the trial court abuse its discretion when it found a defense lawyer\u2019s remark during closing argument was so improper it entitled the plaintiff to a new trial? We conclude the answer is yes. We reverse.\nFACTS\nOn May 16, 1991, Kathy Kass (Kass) visited her obstetrician, Dr. Elio Vento, and received confirmation that she was pregnant. On October 4, 1991, Kass underwent an ultrasound test, which revealed that she was carrying twins, both in breech position. This fact, combined with Kass\u2019 obstetrical history \u2014 she had two previous stillbirths, one due to the umbilical cord wrapping around the fetus\u2019 neck \u2014 led Dr. Vento to plan to deliver the twins by caesarean section. The operation was scheduled for December 9, 1991, the calculated due date.\nOn December 8, 1991, Kass began experiencing labor pains. After consulting with Dr. Vento, Kass went to Resurrection Medical Center. Kass arrived at the Medical Center at 12:30 p.m. and was met by Dr. Vento. He proceeded to assess the situation, applying fetal monitors to Kass\u2019 abdomen.\nFrom the monitors it was determined that one of the twins\u2014 Kelly \u2014 was showing poor heart rate variability and some late decelerations. Though Dr. Vento found the monitor tracings to be cause for concern, he did not believe the tracings were indicative of significant fetal distress necessitating a rush or emergency caesarean section. Dr. Vento decided, however, to perform the caesarean section that day, as soon as possible.\nAt 1:35 p.m., Kass was taken to the operating room. The anesthesiologist, Dr. Ewa Zah\u00farda, was called to the delivery area. She consulted with Dr. Vento and, based on various considerations, they determined an epidural anesthesia would be appropriate. At 2:07 p.m. Dr. Zah\u00farda began administering the epidural. At 2:30 p.m. Dr. Vento began the operation. Kelly was delivered at 2:34 p.m.\nAt birth, Kelly\u2019s APGAR scores were within acceptable range. Blood tests, however, showed her blood pH was slightly below normal and her platelet count was low. Eighteen hours after birth, Kelly had a seizure. She was transferred to Loyola Medical Center, where it was later determined she suffered from cerebral palsy.\nKass filed suit against Resurrection Medical Center, Dr. Vento, and Dr. Zah\u00farda, alleging Kelly\u2019s cerebral palsy had been caused by their negligent acts or omissions. Specifically, it was alleged Dr. Vento breached the standard of care by failing to deliver the twins earlier in the pregnancy; by failing to recognize an emergency situation existed based on Kelly\u2019s monitor tracings; and by failing to perform an emergency caesarean section operation soon after receiving the monitor tracings.\nDr. Zah\u00farda, it was alleged, added to the delay of Kelly\u2019s delivery by choosing to administer an epidural anesthesia, which requires 30 minutes to take effect, rather than a general anesthesia, which takes effect in a matter of minutes.\nDuring a three-week trial, the jury heard the testimony of several expert witnesses. The defense experts, as well as the plaintiffs experts, all opined Kelly\u2019s injury, in light of all the evidence, had not resulted from a single hypoxic event but, rather, had most likely resulted from a continuous, chronic hypoxia, which began anywhere from two to three days to two to three weeks prior to birth. They reached this determination based on the fact that Kelly\u2019s muscle tone, APGAR scores, and ability to breathe on her own were normal at birth, indicating that Kelly was under no appreciable fetal distress at birth. At the same time, however, blood tests done on Kelly\u2019s blood at birth revealed a high level of nucleated red blood cells and low platelet count\u2014 both conditions that indicated a chronically low oxygen intake. Additional testing, such as CT scan, MRI, and head ultrasound films, confirmed, in the defense experts\u2019 opinions, that Kelly\u2019s brain damage was sustained over days or weeks prior to birth.\nIn opposition, Kass\u2019 experts, Dr. Lerer and Dr. Gore, testified hypoxic ischemic encephalopathy at the time of birth contributed to Kelly\u2019s cerebral palsy. While they admitted Kelly\u2019s fetal monitor tracings showing decreased variability and late decelerations upon her arrival at the hospital, which supported the notion that Kelly was already hypoxic when Kass arrived at the hospital, plaintiffs experts were reluctant to say how long the hypoxia might have been present prior to birth. In their opinion, Kelly\u2019s brain damage would have been less severe had she been delivered sooner.\nAfter the evidence was presented, the jury heard closing arguments. Plaintiffs counsel began by stating Kelly was not present in court\n\u201ceven though this is probably the most important day of her life because what you decide today is going to determine how she\u2019s going to five for the rest of her 73 or 74 years of life ***.\nNow let me remind you of the burden you have in this case, that is, this is Kelly\u2019s only day in court. There is no second chance. Whatever you decide today as to what she\u2019s entitled to, that\u2019s it for the rest of her life. If you decide there is a sum of money you agree that she is entitled to, that\u2019s what she\u2019s going to have to live with for the rest of her life. That\u2019s your burden.\u201d\nLater in plaintiffs closing argument, counsel accused the defense of \u201ccreat[ing] evidence to cheat a crippled child of what she\u2019s due\u201d and characterized the defense witnesses as \u201ca dog and pony show.\u201d\nThe three defendants each presented closing argument \u2014 first the hospital, then Dr. Vento, and, finally, Dr. Zaburda. At the close of a lengthy closing argument, Dr. Zaburda\u2019s lawyer said:\n\u201cMr. Weaver said that Kelly only has one day in court, but I must tell you Dr. Zaburda only has one day in court, too, and that\u2019s today. The decision that you make will affect her professionally and personally.\u201d\nAn immediate objection was made by plaintiff. The court responded, \u201cSustained. Strike that.\u201d\nAfter closing arguments, the court instructed the jury. One of the instructions told the jury it was to disregard any statements that were not based on the evidence. After deliberating, the jury returned a verdict in favor of all three defendants.\nKass filed a posttrial motion, seeking a new trial. Plaintiffs main argument was that reversible error was caused by Dr. Zaburda\u2019s lawyer\u2019s remark in closing argument that the \u201cdecision that you make will affect her professionally and personally.\u201d This remark, said plaintiff, was an improper appeal to the sympathy of the jury and suggested, incorrectly, that Dr. Zaburda had no insurance and would be affected financially.\nThe trial court agreed the remark was improper and set aside the jury\u2019s verdict, but only as to Dr. Vento and Dr. Zaburda, not the hospital. The trial court made it very clear it was granting a new trial against these two defendants solely on the basis of the remark made by Dr. Zaburda\u2019s lawyer in closing argument. The court said it was improper, in a medical malpractice case, for a doctor to argue the impact of a verdict on his/her professional reputation. \u201cSecondly,\u201d the court said, \u201cwhen you add the word personally *** it could be \u2014 if the professional part is understood, then maybe it means money-wise or financially.\u201d\nBased on this reasoning, the court ruled it was \u201cnot going to let it stand.\u201d The court said it reached this conclusion, not only because of the impropriety in this case, but because of the possible effect on future cases if the court let the verdict stand.\nDr. Vento and Dr. Zaburda appeal from the order granting plaintiff a new trial. Illinois Supreme Court Rule 306 (134 Ill. 2d R. 306) provides jurisdiction to hear this appeal.\nDECISION\nThere is no doubt the trial court granted plaintiffs motion for new trial solely on the basis of the single remark by Dr. Zaburda\u2019s lawyer in closing argument. We consider whether the trial court clearly abused its discretion when it granted plaintiffs motion for new trial. See Maple v. Gustafson, 151 Ill 2d 445, 455, 603 N.E.2d 508 (1992) (A trial court\u2019s decision to grant or deny a new trial will not be overturned unless the reviewing court finds the trial court clearly abused its discretion).\nOur research has uncovered four cases where reviewing courts have considered the prejudicial impact of closing remarks that suggested to a jury an adverse verdict against the defendant would impugn the defendant\u2019s professional reputation.\nThe first case is Torrez v. Raag, 43 Ill. App. 3d 779, 357 N.E.2d 632 (1976), a medical malpractice action. In Torrez, defense counsel said in closing argument:\n\u201c T am concerned though, and I am seriously concerned, because this man\u2019s right to practice medicine by reason of this lawsuit \u2014 \u2019 \u201d Torrez, 43 Ill. App. 3d at 782.\nPlaintiff\u2019s counsel interrupted with an objection. The trial court sustained the objection and added, \u201cIt is not an item of dispute here, Mr. Clancy.\u201d 43 Ill. App. 3d at 782. The remark was not stricken. No further remarks of this nature were made. The jury returned a verdict in favor of the defendant doctor, but the trial court set aside the verdict and granted plaintiffs a new trial, saying it was \u201c \u2018taking into account the manifest weight of the evidence, the attitude and demeanor of the witnesses, [and] the arguments of counsel in their closing remarks\u2019 \u201d to find prejudicial impact on the jury. Torrez, 43 Ill. App. 3d at 782.\nThough the question was one of first impression, the reviewing court upheld the trial court\u2019s decision:\n\u201cWe do not feel that the trial court abused its discretion in finding the remark to have prejudiced the jury, particularly in view of the close nature of the evidence in this case, and we therefore do not find that the court abused its discretion in ordering a new trial since there was a showing that the verdict, though perhaps not wholly unwarranted by the evidence, resulted from passion or prejudice.\u201d Torrez, 43 111. App. 3d at 783-84.\nThe next time the issue was considered was in Mast v. Krusemark, 83 Ill. App. 3d 107, 403 N.E.2d 743 (1980). In Mast, a legal malpractice action, defense counsel said in closing argument, \u201cThe professional reputation of Mr. Krusemark is at stake, too.\u201d 83 111. App. 3d at 112. The remark was objected to, but the objection was overruled.\nWhen ruling on plaintiffs posttrial motion for new trial, the trial court specifically held the jury\u2019s verdict was not against the manifest weight of the evidence and, for that reason, denied the motion. Plaintiff appealed.\nOn review, the court rejected arguments that Torrez mandated reversal. Though the remark was error, the court said, it was harmless because the \u201cstatement was [not] adequate, by itself, to produce any significant prejudice to the plaintiffs.\u201d Mast, 83 Ill. App. 3d at 113.\nNext came Rush v. Hamdy, 255 Ill. App. 3d 352, 627 N.E.2d 1119 (1993). In Rush, defense counsel made two remarks in closing argument to which plaintiff objected. The first remark was:\n\u201cDr. Hamdy has his professional reputation on the line here. If he has seemed uptight or excited at times, please consider that he has a lot at stake here. His professional reputation is very important to him.\u201d 255 Ill. App. 3d at 358.\nThe judge in Rush, unlike the judge in the instant case, overruled the objection.\nDefense counsel later argued Dr. Hamdy was not \u201chere to be hit with a money verdict.\u201d 255 111. App. 3d at 360. The trial court sustained an objection to this remark, but did not strike it. The jury returned a verdict in favor of the defendant, Dr. Hamdy, and plaintiffs appealed.\nOn appeal, the reviewing court found both remarks violated orders in limine. Moreover, said the court, the remarks were improper and constituted reversible error because they interjected improper elements into the case and appealed to the passions and sympathy of the jury. For these reasons, plaintiffs did not receive a fair trial.\nMore recently, in Dodds v. Western Kentucky Navigation, 297 Ill. App. 3d 702, 710, 697 N.E.2d 452 (1998), defense counsel made \u201cinappropriate references to ethical violations and professional disciplinary actions\u201d during closing argument. Again, the court found such remarks improper because they \u201cinterjected irrelevant issues into the case.\u201d Dodds, 297 Ill. App. 3d at 710. In Dodds, the verdict was found to be against the manifest weight of the evidence and for that reason a new trial was ordered.\nThere is a principle to extract from the cases: any suggestion that an adverse verdict might have negative impact on a defendant\u2019s professional reputation is an appeal to the jury\u2019s passion and prejudice, an improper purpose. Dr. Zaburda\u2019s lawyer\u2019s statement \u2014 \u201cThe decision that you make will effect her professionally and personally\u201d\u2014 was such a suggestion even though the word \u201creputation\u201d was not used. We do not share plaintiffs view that the reference to effecting Dr. Zaburda \u201cpersonally\u201d was an inference that she was uninsured.\nWe understand the statement was intended to respond to plaintiffs repeated appeals for juror sympathy on behalf of Kelly. Defense counsel had the right to defend against those remarks. But she went too far.\nThe question we must answer is whether this single improper remark, successfully objected to by plaintiff and promptly stricken from the record, supports the trial judge\u2019s decision to take away the jury\u2019s verdict in favor of Doctors Zaburda and Vento.\nWe do not believe the question can be answered without examining the impact the remark may have had on the jury in this case. That is, could the jury\u2019s verdict in favor of all three defendants have been the result of passion and prejudice created by the single remark? The trial judge did not do that analysis. We have. Doing so, we note that sustaining an objection and ordering an improper comment stricken generally is a prompt cure for any prejudicial impact that may have been caused. See People v. Alvine, 173 Ill. 2d 273, 295, 671 N.E.2d 713 (1996); see also People v. Baptist, 76 Ill. 2d 19, 30, 389 N.E.2d 1200 (1979).\nHere, it was a brief remark, coming at the end of defense counsel\u2019s argument. No motion for mistrial was made when the remark was stricken. The jury had heard 9 days of trial testimony from 16 witnesses, 11 of them medical experts, including the two defendant doctors. While there was enough evidence to find in favor of the plaintiff, the defendants mounted a strong defense.\nWe find it difficult to see how defense counsel\u2019s offending remark could have been enough to tip the scales. After all, the jury found in favor of the hospital and both doctors. The remark referred only to Dr. Zaburda, against whom the evidence was far from persuasive.\nBased on the entire record we find, as the court did in Mast, the improper statement during argument could not have caused significant prejudice to the plaintiff. In the absence of prejudice that denies a party a fair trial, it becomes a clear abuse of discretion for the trial court to grant a new trial where the evidence supports the jury\u2019s verdict. See Maple v. Gustafson, 151 111. 2d at 455.\nCONCLUSION\nWe conclude the trial court erred when it granted plaintiff a new trial.\nWe reverse the trial court\u2019s order granting plaintiff a new trial, and the jury\u2019s verdict in favor of Dr. Zaburda and Dr. Vento is reinstated.\nReversed.\nHALL, EJ., and BURKE, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Robert Marc Chemers, Alan J. Schumacher, and Scott L. Howie, all of Pretzel & Stouffer, Chtrd., of Chicago, for appellant Elio Vento.", "Lord, Bissell & Brook, of Chicago (William C. Anderson III, Diane I. Jennings, and Ann K. Ford, of counsel), for appellant Ewa Zah\u00farda.", "A. Denison Weaver and Michael J. Laird, both of Chicago, for appellee." ], "corrections": "", "head_matter": "KATHY KASS, Indiv. and as Mother and Next Friend of Kelly Kass, a Minor, Plaintiff-Appellee, v. RESURRECTION MEDICAL CENTER, Defendant (Elio Vento et al., Defendants-Appellants).\nFirst District (3rd Division)\nNo. 1-99-1297\nOpinion filed September 29, 2000.\n\u2014 Rehearing denied November 1, 2000.\nRobert Marc Chemers, Alan J. Schumacher, and Scott L. Howie, all of Pretzel & Stouffer, Chtrd., of Chicago, for appellant Elio Vento.\nLord, Bissell & Brook, of Chicago (William C. Anderson III, Diane I. Jennings, and Ann K. Ford, of counsel), for appellant Ewa Zah\u00farda.\nA. Denison Weaver and Michael J. Laird, both of Chicago, for appellee." }, "file_name": "1108-01", "first_page_order": 1128, "last_page_order": 1134 }