{ "id": 5766277, "name": "TERRI BRAX, as Parent and Next Friend of Jonathan Brax, a Minor, Plaintiff-Appellant, v. MICHAEL KENNEDY et al., Defendants-Appellees", "name_abbreviation": "Brax v. Kennedy", "decision_date": "2005-12-06", "docket_number": "No. 1-04-0444", "first_page": "343", "last_page": "356", "citations": [ { "type": "official", "cite": "363 Ill. App. 3d 343" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "790 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "339 Ill. App. 3d 30", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468093 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "36" }, { "page": "36" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0030-01" ] }, { "cite": "776 N.E.2d 859", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 846", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 487037 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "860" }, { "page": "860", "parenthetical": "witnesses are allowed to elaborate or give logical corollaries to Rule 213 disclosures" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0846-01" ] }, { "cite": "752 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 579", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171660 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0579-01" ] }, { "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 ], "weight": 5, "year": 1973, "pin_cites": [ { "page": "599" }, { "page": "599-600" }, { "page": "599-600" }, { "page": "599", "parenthetical": "issue of damages never reached where the jury found the defendant not liable" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0591-01" ] }, { "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": 4, "year": 1993, "pin_cites": [ { "page": "766" }, { "page": "766" }, { "page": "766-67" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0759-01" ] }, { "cite": "771 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "199 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58949 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-2d/199/0483-01" ] }, { "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 ], "year": 1995, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0083-01" ] }, { "cite": "775 N.E.2d 154", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 289", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 487252 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "297" }, { "page": "297" }, { "page": "297" }, { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0289-01" ] }, { "cite": "287 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "52 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395587 ], "year": 1972, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0250-01" ] }, { "cite": "475 N.E.2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "105 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142403 ], "year": 1984, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0537-01" ] }, { "cite": "730 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "191 Ill. 2d 251", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229700 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "255" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0251-01" ] } ], "analysis": { "cardinality": 1135, "char_count": 31308, "ocr_confidence": 0.766, "pagerank": { "raw": 1.361361762720063e-07, "percentile": 0.6363876812895269 }, "sha256": "deaf26b77578687befd862d9af9b2456b73456cdd5522166dc32616045b8d253", "simhash": "1:b37ae1a277d585c5", "word_count": 5068 }, "last_updated": "2023-07-14T18:25:30.372916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TERRI BRAX, as Parent and Next Friend of Jonathan Brax, a Minor, Plaintiff-Appellant, v. MICHAEL KENNEDY et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE GARCIA\ndelivered the opinion of the court. On March 17, 1997, the plaintiff, Terri Brax, as the mother and next friend of minor Jonathon Brax (Jonathon), filed a complaint against the defendants, Michael Kennedy, M.D. (Dr. Kennedy), and Surgical Specialists, Ltd. The plaintiffs complaint alleged negligence against both defendants (counts I and III), and sought expenses from both defendants pursuant to section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2002)) (counts II and IV).\nOn March 5, 2003, a jury returned a verdict in favor of the defendants. The plaintiff appeals, arguing the trial court erred when it (1) instructed the jury using the long form of Illinois Pattern Jury Instructions, Civil, No. 12.05 (1995) (hereinafter IPI Civil (1995) No. 12.05); (2) failed to instruct the jury as to increased risk of future harm; and (3) allowed Dr. Kennedy to provide an undisclosed opinion in violation of Supreme Court Rule 213 (210 Ill. 2d R. 213)). We affirm the judgment below.\nBACKGROUND\nOn August 21, 1995, Jonathon began to feel sick with complaints of a sore throat and stomach pain. Over the course of the next 24 hours, he suffered from nausea and vomiting and his abdominal pain worsened.\nOn August 22, Mrs. Brax took Jonathon to Northwest Community Hospital\u2019s Urgent Care Center (Northwest) in Schaumburg, Illinois. At Northwest, Jonathon was treated by Dr. Bijan Far ah, a board-certified emergency room physician. Dr. Far ah diagnosed Jonathon with appendicitis. Following his diagnosis, Dr. Far ah spoke with Jonathon\u2019s pediatrician and coordinated with Dr. Kennedy to transfer Jonathon to the Hoffman Estates Medical Center (Hoffman Medical) for a surgical consultation.\nAt Hoffman Medical, Dr. Kennedy examined Jonathon in the emergency room. Dr. Kennedy found Jonathon had a soft abdomen, with tenderness in the right-lower quadrant, a sign of appendicitis. Dr. Kennedy also interviewed Mrs. Brax and Jonathon to get an accurate picture of Jonathon\u2019s symptoms. Dr. Kennedy was made aware Jonathon suffered from nausea, vomiting, severe abdominal pain, poor appetite, and fever. However, Jonathon\u2019s complaints of abdominal pain lessened while being examined by Dr. Kennedy. Tests revealed that Jonathon had an elevated white blood cell count of 180,000. In Dr. Kennedy\u2019s experience with appendicitis, the white blood cell count typically ranges from 10,000 to 15,000, while a more elevated white blood cell count did not provide for a specific diagnosis. Based on Jonathon\u2019s symptoms, Dr. Kennedy determined that Jonathon was suffering either from gastroenteritis or from acute appendicitis. Dr. Kennedy specifically noted that Jonathon\u2019s vomiting and nausea, prior to his abdominal pain, led him to lean toward a diagnosis of gastroenteritis.\nTo determine the cause of Jonathon\u2019s symptoms, Dr. Kennedy ordered a lower GI series, which included a barium enema. In his deposition, Dr. Kennedy described a barium enema as a radiographic contrast study wherein contrast is introduced through a small rubber catheter inserted through the anus and into the rectum. The contrast goes around the entire length of the colon to the right side of the lower abdominal region, to the appendix. Dr. Kennedy testified that with a barium enema, there are three findings that suggest appendicitis: (1) nonvisualization of the appendix, (2) inflammatory change on the cecum, and (3) irritation and displacement of the surrounding small intestinal loops. Dr. Kennedy relied on the lower GI series to rule out appendicitis as the cause of Jonathon\u2019s abdominal pain.\nDr. Timothy Tully, a radiologist, interpreted the results of the barium enema in real time, as the contrast was filling Jonathon\u2019s abdomen, and in photographs taken of the process. Although the appendix could not be seen in the photographs taken of the barium study, Dr. Tully was able to visualize the entire appendix during the procedure. Dr. Kennedy received Dr. Tully\u2019s report, which indicated that the colon had filled with barium and the appendix appeared normal.\nBased upon the normal barium study and Jonathon\u2019s decreased pain, Dr. Kennedy sent Jonathon home with his parents, who were advised to return with him to the hospital if his symptoms worsened.\nOn August 23, 1995, Mrs. Brax called Jonathon\u2019s pediatrician\u2019s office and spoke with Dr. Greg Gorski. Mrs. Brax told Dr. Gorski that Jonathon had developed diarrhea. Dr. Gorski spoke with Dr. Kennedy and then told Mrs. Brax that Jonathon had the flu.\nOn August 24, 1995, Mrs. Brax again called Jonathon\u2019s pediatrician\u2019s office, spoke with Dr. Lori Sielski, and took Jonathon in for a consultation. Dr. Sielski examined Jonathon and found he had abdominal pain and was toxic looking. Dr. Sielski believed Jonathon had a ruptured appendix and was suffering from dehydration. Dr. Siel-ski planned to admit Jonathon to the hospital, give him antibiotics, and get a surgical consultation. Dr. Sielski spoke with Dr. Kennedy, who agreed with the plan, examined Jonathon, found abdominal pain, and ordered a CT scan of Jonathon\u2019s abdomen, which conclusively demonstrated that Jonathon\u2019s appendix had ruptured.\nFollowing the CT scan, Dr. Kennedy performed surgery on Jonathon. Jonathon did not recover as expected and was transferred to Children\u2019s Memorial Hospital, where he was seen by Dr. Grant Geissler. During surgery, Dr. Geissler discovered that Jonathon suffered from a malrotation of the bowel and had developed a mid-gut volvulus.\nOn March 17, 1997, a medical malpractice complaint was filed against Dr. Kennedy and Surgical Specialists, Ltd., alleging that Dr. Kennedy had deviated from the standard of care in his treatment of Jonathon and that the alleged negligence was the proximate cause of Jonathon\u2019s injuries.\nIt was plaintiffs position at trial that Dr. Kennedy was negligent in not diagnosing Jonathon with appendicitis on August 22, 1995. Specifically, the plaintiff contended that Dr. Kennedy should have performed a CT scan on Jonathon on August 22, 1995. The plaintiff surmised that as a result of Dr. Kennedy\u2019s negligence, Jonathon developed a mid-gut volvulus and required subsequent surgeries.\nDuring their opening statement, the defendants contended that (1) Jonathon\u2019s conditions met the criteria of both appendicitis and gastroenteritis; (2) Dr. Kennedy reasonably relied on the barium study, which showed no evidence of appendicitis; and (3) Jonathon\u2019s malrotation was a congenital condition, regarding which there was no testimony that Dr. Kennedy should have known about or suspected, and the malrotation caused the mid-gut volvulus, which later surgeries were required to repair.\nThe plaintiffs medical expert, Dr. Jon Morris, and the defendants\u2019 medical expert, Dr. Barry Newman, disagreed regarding whether Dr. Kennedy adhered to the standard of care by sending Jonathon home with his parents on August 22. There was also disagreement regarding whether Dr. Kennedy should have administered a barium enema on August 22 or should have ordered a CT scan. There was further disagreement regarding when Jonathon\u2019s appendix ruptured and whether that rupture contributed to Jonathon\u2019s mid-gut volvulus.\nOn March 5, 2003, the jury returned a general verdict in favor of Dr. Kennedy and Surgical Specialists, Ltd. The instant appeal followed. Additional pertinent facts will be discussed in the context of the issues raised in this appeal.\nANALYSIS\nI. Sole Proximate Cause Instruction\nThe plaintiff first complains that the trial court abused its discretion in refusing to give the short form of Illinois Pattern Jury Instructions, Civil, No. 12.04 (1995) (hereinafter IPI Civil (1995) No. 12.04). The plaintiff specifically contends, \u201c[i]n the present case, there was evidence of several contributing causes to Jonathon\u2019s injuries, but there was no evidence of any outside person or thing that was the only cause.\u201d (Emphasis in original.) The plaintiff argues that there was evidence from which the jury could infer that Jonathon\u2019s parents contributed to his injuries or that Dr. Tully incorrectly read the barium enema study he performed on Jonathon.\nThe defendants contend that throughout trial they presented the theory that Jonathon\u2019s mid-gut volvulus was the result of a preexisting congenital condition of malrotation, and not any negligence on Dr. Kennedy\u2019s part or on the part of any other person.\nAt the initial jury instruction conference, the plaintiff tendered the short form of IPI Civil (1995) No. 12.04, which stated:\n\u201cMore than one person may be to blame for causing an injury. If you decide that a 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.\u201d IPI Civil (1995) No. 12.04.\nIn arguing for the proposed jury instruction, the plaintiffs attorney stated, \u201cthere is evidence in this case from which the jury might infer that someone other than the defendant might have done something wrong, and there\u2019s no evidence that anyone other than the defendant could be a sole proximate cause.\u201d The trial court countered, \u201cI think there was a suggestion off of the record that the parents might be blamed somehow here; but I don\u2019t think that anybody is adopting that position.\u201d The plaintiffs attorney agreed, but stated, \u201cI\u2019m not necessarily worried about it directly. But there\u2019s already evidence out there. The jury could be thinking, well, they were told to bring him back.\u201d The trial court then emphasized that Jonathon\u2019s parents did, in fact, bring him back to the hospital when his condition worsened; \u201cand all the doctors testified that the parents did absolutely nothing wrong here. *** And so, there really isn\u2019t any evidence in the record to suggest \u2014 unless it\u2019s another doctor here, I think. I just assumed that you were going to try to put this on Dr. Tully or something. I don\u2019t know, but it doesn\u2019t appear to be the case. So the instruction that I tend to think is more appropriate is [IPI Civil (1995) No.] 12.05.\u201d\nThe parties then discussed the instruction tendered by the defendants, the long form of IPI Civil (1995) No. 12.05, which states:\n\u201cIf you decide that a defendant was negligent and that their negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.\nHowever, if you decide that the sole proximate cause of the injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.\u201d IPI Civil (1995) No. 12.05.\nThe trial court noted that the plaintiffs attorney had a strong objection to the proposed instruction and invited his argument. The plaintiffs attorney began by noting that \u201c[t]he long form is designed for when there\u2019s specific evidence of a specific cause or instrumentality or person *** other than the defendant\u2019s negligence.\u201d The defendants\u2019 attorney responded that \u201cthere is ample evidence, and it\u2019s part of our defense that the patient\u2019s condition of appendicitis *** and the pre-existing congenital condition of the malrotation and the volvu-lus which flowed therefrom was the sole cause of all the damages to Jonathon Brax.\u201d The plaintiffs attorney responded that \u201cthe volvulus is only one part of Jonathon\u2019s injuries. And I believe instructing the jury with the long form would tell them that if they believe that the volvulus is not related to the negligence, then they should find for the defendant without considering these other aspects of the injury.\u201d The trial court concluded that although it was reserving ruling on the issue, the long form of IPI Civil (1995) No. 12.05 allowed the jury \u201cto either conclude that *** the harm was a result of a congenital birth defect that had nothing to do with negligence, or in the alternative that there is no sole proximate cause to this [and] the doctor contributed to the injury.\u201d\nThe plaintiffs attorney then made a \u201cconditional tender.\u201d \u201cIf the [trial] Court is inclined to give [IPI Civil (1995) No.] 12.05 the long form, then I would tender the first paragraph to say, \u2018it is not a defense that something or someone else may have also been a cause of the injury.\u2019 \u201d The proposed jury instruction was described as an \u201c[IPI Civil (1995) No.] 12.04 hybrid with [IPI Civil (1995) No.] 12.05.\u201d\nThe trial court found that there was sufficient evidence for the jury to properly consider that something or someone other than Dr. Kennedy may have been the sole proximate cause of Jonathon\u2019s problems following the surgical removal of his appendix. As a result, the trial court subsequently ruled that it would give the hybrid, long-form version of IPI Civil (1995) No. 12.05, as proposed by the plaintiff.\nThe plaintiff now contends the giving of this instruction instead of IPI Civil (1995) No. 12.04 was error.\nWe need not address this specific contention because the trial court issued the hybrid jury instruction at the behest of the plaintiff. See McMath v. Katholi, 191 Ill. 2d 251, 730 N.E.2d 1 (2000). \u201c \u2018It is fundamental to our adversarial process that a party waives his right to complain of an error where to do so is inconsistent with the position taken by the party in an earlier court proceeding.\u2019 \u201d McMath, 191 Ill. 2d at 255, quoting Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 543, 475 N.E.2d 817 (1984). Moreover, a party cannot complain of an error which it induced the trial court to make or to which he consented. McMath, 191 Ill. 2d at 255. \u201cWaiver is particularly pertinent where the conduct of a party before the trial court induced the court to rule as it did.\u201d People v. McAdrian, 52 Ill. 2d 250, 254, 287 N.E.2d 688 (1972).\nAs clearly set forth in the transcript quoted above, at the conference on the proposed jury instructions the trial court commented on the plaintiffs reasons for promoting the short form of IPI Civil (1995) No. 12.04. Specifically, the trial court stated that there was no merit to plaintiffs assertion that the jury might blame (1) Jonathon\u2019s parents, as all the experts testified that the parents were not at fault and had acted in accordance with Dr. Kennedy\u2019s instructions, that is, they returned Jonathon to the hospital when his condition worsened; or (2) Dr. Tully, for misreading the barium report, as Dr. Kennedy asserted that he and Dr. Tully were within the standard of care in using the barium enema to discern whether Jonathon had appendicitis.\nThe plaintiff asserts that when it became clear that the trial court was leaning toward giving the defendants\u2019 proposed jury instruction, the plaintiff made the conditional tender about which she now complains. In her reply brief, the plaintiff argues that in offering the conditionally tendered jury instruction, she was acting in a proactive manner when the trial court ruled that it would give the long form of IPI Civil (1995) No. 12.05. Accordingly, she \u201cattempted to mitigate the damage by preparing a modified combination of 12.04 and 12.05. [But she] in no way waived her objection to 12.05 or the long form of 12.04 or 12.05.\u201d\nWe find that the plaintiff cannot now distance herself from that conditionally tendered instruction, as the trial court issued the conditionally tendered jury instruction as the plaintiff requested.\nAs the transcript makes clear, at the jury instruction conference the trial court did not determine whether to give IPI Civil (1995) No. 12.04 or IPI Civil (1995) No. 12.05, but instead reserved its ruling on the sole proximate cause instruction. Instead of giving the trial court the opportunity to consider the matter, the plaintiff immediately presented a hybrid proposal and encouraged the trial court to accept the proffered jury instruction. It was then, only after considering the three jury instructions proposed by the parties, that the trial court determined it would give the hybrid instruction as proposed by the plaintiff.\nThe plaintiff has presented us with no authority that supports her position that proposing a modified combination of IPI Civil (1995) No. 12.04 and IPI Civil (1995) No. 12.05 to mitigate damage from the possible rejection of the use of IPI Civil (1995) No. 12.04 somehow precludes our finding that she waived her objection. Moreover, we have found no such authority to exist. As such, we find that the plaintiff has waived any claim of error regarding the trial court\u2019s decision to give the hybrid jury instruction, as tendered by the plaintiff.\nA review of the hybrid instruction itself also fails to support the plaintiffs claim of error. \u201cEach party has the right to have the jury clearly and fairly instructed upon each theory that was supported by the evidence.\u201d Nassar v. County of Cook, 333 Ill. App. 3d 289, 297, 775 N.E.2d 154 (2002), citing Leonardi v. Loyola University, 168 Ill. 2d 83, 100, 658 N.E.2d 450 (1995). It is within the trial court\u2019s discretion to determine what issues are raised by the evidence and whether an instruction should be given. Nassar, 333 Ill. App. 3d at 297. To determine the propriety of a tendered instruction, we consider whether the jury was fairly, fully, and comprehensively informed as to the relevant principles considering the instructions as a whole. Nassar, 333 Ill. App. 3d at 297.\nThe long form of IPI Civil (1995) No. 12.05 is appropriate \u201cwhere there is evidence tending to show that the sole proximate cause of the occurrence was something other than the conduct of the defendant.\u201d IPI Civil (1995) No. 12.05, Notes on Use, at 62. If the jury was presented with some competent evidence tending to support the defendants\u2019 theory that Jonathon\u2019s malrotation caused the mid-gut volvulus requiring further operations, then the instruction was proper. See Nassar, 333 Ill. App. 3d at 297.\nAs emphasized by the defendants, the plaintiff did not allege that Dr. Kennedy caused Jonathon\u2019s appendicitis, nor did the plaintiff allege that if Dr. Kennedy had diagnosed Jonathon\u2019s appendicitis on August 22, instead of on August 24, Jonathon would not have had to have any surgery. Instead, the plaintiffs contention appears to be that Jonathon\u2019s condition following the removal of his appendix, and the subsequent surgeries he required, were caused by Dr. Kennedy\u2019s not diagnosing Jonathon\u2019s appendicitis in a timely manner. The defendants maintain that Dr. Kennedy\u2019s diagnosis was proper and Jonathon\u2019s subsequent problems were caused solely by Jonathon\u2019s preexisting congenital malrotation. The plaintiff\u2019s expert testified that Dr. Kennedy\u2019s delay in diagnosing Jonathon directly contributed to the development of the mid-gut volvulus. The defendants and their expert testified that Jonathon had a malrotation not caused by Jonathon\u2019s appendicitis or by Dr. Kennedy\u2019s actions. The defendants\u2019 expert also stated that a volvulus was something that happens because of a malro-tation, but was unable to say for sure what caused Jonathon\u2019s mid-gut volvulus. In this case, the defendants presented some competent evidence that the subsequent operations performed to repair Jonathon\u2019s malrotation and mid-gut volvulus were necessary for reasons not associated with the action or inaction of Dr. Kennedy. Therefore, we find that in giving the hybrid long form of the jury instruction, the trial court did not abuse its discretion.\nII. Future Harm\nThe plaintiff additionally contends that the trial court erred when it refused to instruct the jury on Jonathon\u2019s increased risk of future harm as provided by the holding in Dillon v. Evanston Hospital, 199 Ill. 2d 483, 771 N.E.2d 357 (2002). The plaintiff acknowledges that generally errors concerning the extent of damages are not reversible where the jury finds the defendant was not liable. But, the plaintiff argues, the error here was so \u201cpervasive and prejudicial\u201d that there is a likelihood it may have affected the jury\u2019s decision regarding liability. In support of her contention that reversible error occurred here, she relies on general citations to Hall v. Dumitru, 250 Ill. App. 3d 759, 620 N.E.2d 668 (1993), scad Mulvey v. Illinois Bell Telephone Co., 53 Ill. 2d 591, 294 N.E.2d 689 (1973).\nIn Mulvey, the plaintiff contended that defense counsel\u2019s closing arguments, which pertained to the extent of damages, required reversal and a new trial. Mulvey, 53 Ill. 2d at 599. While noting that generally errors concerning the extent of damages are not reversible where the jury finds the defendant not liable, our supreme court in Mulvey recognized an exception where \u201cerrors 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.\u201d Mulvey, 53 Ill. 2d at 599-600. In examining the facts in Mulvey, our supreme court concluded the claimed errors going to the question of damages were not of such a nature as to have affected the jury\u2019s decision regarding liability. Mulvey, 53 Ill. 2d at 599-600.\nIn contrast, the Hall court was persuaded by the plaintiff\u2019s argument that the trial court error in allowing the defendant to argue that the plaintiffs failure to mitigate her damages by undergoing a second surgery may have affected the jury\u2019s decision on the issue of liability. Hall, 250 Ill. App. 3d at 766. The court specifically stated that Hall was a case where the claimed errors \u201cwhich go to the question of damages [were] so pervasive and prejudicial as to create the likelihood that they may have affected [the] jury\u2019s decision on the issue of liability.\u201d Hall, 250 Ill. App. 3d at 766. In its analysis of the issue, the Hall court set out very clearly the plaintiff\u2019s arguments of the pervasive and prejudicial nature of the multiple references to the plaintiffs failure to undergo the second surgery to mitigate her damages.\n\u201cPlaintiff argues that the admission of evidence of the medical recommendation that plaintiff undergo another tubal ligation shifted the jury\u2019s attention away from the separate question of defendant\u2019s liability. Because of the emphasis on the proposed second ligation surgery, the jury might easily have begun to perceive the plaintiff as the wrongdoer. Defendant argues that the admission of evidence of medical recommendations made to plaintiff could not have confused the jury. We disagree. It would not be unreasonable or surprising that a juror would take the duty improperly imposed on plaintiff to suffer the second ligation surgery and relate it directly to causation and fault. It would not be unreasonable for a jury to believe that but for plaintiffs failure to have the second ligation surgery performed plaintiff would not have experienced the unwanted 1988 pregnancy or the ectopic pregnancy of 1990, thereby shifting the jury\u2019s attention away from the defendant\u2019s alleged malpractice. We believe that this error with respect to damages was so pervasive and prejudicial as to have affected the jury\u2019s decision on liability.\u201d Hall, 250 Ill. App. 3d at 766-67.\nHere, however, we are presented with no explicit argument setting out the claim of \u201cpervasive and prejudicial\u201d error based on the failure of the trial court to instruct the jury on the risk of future harm so as to have affected the jury\u2019s decision on liability. We are presented with no argument how the jury might have been confused on the issue of liability based on the absence of a risk of future harm instruction. Accordingly, we find no reason the general rule that errors concerning the extent of damages are not reversible where the jury finds the defendant not liable should not control the outcome here. See Mulvey, 53 Ill. 2d at 599 (issue of damages never reached where the jury found the defendant not liable). Because the jury found for the defendants on the issue of liability, any alleged error in failing to instruct on the risk of future harm to the plaintiffs minor is not grounds for reversal.\nIII. Undisclosed Opinion\nFinally, the plaintiff asserts that the trial court abused its discretion by allowing Dr. Kennedy to present evidence not disclosed in his Rule 213 responses, and relies on Regala v. Rush North Shore Medical Center, 323 Ill. App. 3d 579, 752 N.E.2d 443 (2001). In Regala, an expert physician called by the defendant stated in his deposition and on cross-examination at trial that the plaintiffs son would have been born without neurological damage if delivery had occurred earlier. On redirect examination, the expert stated that the neurological damage would have occurred even if the child had been delivered earlier, expressing that opinion for the first time. On appeal, a new trial was ordered because the expert\u2019s testimony was found inadmissible as he had exceeded his previously disclosed opinions. Regala, 323 Ill. App. 3d at 585.\n\u201c[T]he purpose of Rule 213 is to avoid surprise and permit litigants to ascertain and rely upon the opinions of experts retained by the opposing party.\u201d Scassifero v. Glaser, 333 Ill. App. 3d 846, 860, 776 N.E.2d 859 (2002); see 210 Ill. 2d R. 213, Committee Comments. In relevant part, Rule 213(f)(3) provides:\n\u201c(3) Controlled Expert Witness. A \u2018controlled expert witness\u2019 is a person giving expert testimony who is the party, the party\u2019s current employee, or the party\u2019s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.\u201d 210 Ill. 2d R. 213(f)(3).\nThe defendants\u2019 supplemental Rule 213 disclosures, dated June 4, 2001, state:\n\u201cDr. Kennedy will testify consistently with his discovery deposition and medical records. In particular, he will testify concerning his opinions disclosed in his discovery deposition concerning his care and treatment of Jonathon Brax as well as his opinions with respect to the standard of care and causation. Dr. Kennedy will testify that he possessed and applied the knowledge and used the skill and care of a reasonably well-qualified surgeon in his treatment of Jonathon Brax. Further, that he did not cause or contribute to cause any injury to Jonathon Brax.\u201d\nIn his discovery deposition, Dr. Kennedy was asked, inter alia:\n\u201c[Plaintiff Attorney Burke]: Do you have an opinion Doctor, based upon your experience as to whether the CT study with contrast was a better diagnostic tool compared to the barium enema for appendicitis?\n[Dr. Kennedy]: When?\n[Plaintiff Attorney Burke]: All right, let\u2019s take both time periods, \u201995 and the present.\n[Dr. Kennedy]: In 1995, no. Certainly [we had] more experience with barium enema we [we]re very confident with barium enema at that time. I think the literature is currently suggesting that the *** CT scan is a preferable study.\n\u2756 \u2756 H\u00ed\n[Defense Attorney Collins]: Doctor, is it your opinion based upon a reasonable degree of medical certainty that the barium enema study you performed \u2014 that you had performed on Jonathon Brax in August of 1995 was a reasonable and appropriate test to work him up for a possible diagnosis of appendicitis?\n[Dr. Kennedy]: Yes.\n[Defense Attorney Collins]: Doctor, is it your opinion based upon a reasonable degree of medical certainty that you complied with the acceptable standard of care with regard to all of your care and treatment of Jonathon Brax?\n[Dr. Kennedy]: Yes.\u201d\nAt trial, defense counsel elicited the following testimony from Dr. Kennedy:\n\u201c[Defense Attorney Collins]: In 1995, was the CT scan a better test for the diagnosis of appendicitis than a lower GI?\n[Dr. Kennedy]: That was not established at that time, no.\n[Defense Attorney Collins]: Is there any reason to think if the CT scan had been done at that time that the findings would have been any different than they were for the lower GI that was actually done?\n[Dr. Kennedy]: There\u2019s no reason to believe that.\n[Plaintiff Attorney Dumb]: Objection, 213.\u201d\nThe plaintiffs reliance on Regala is misplaced. \u201cThe admission of evidence in a trial is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.\u201d Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d 30, 36, 790 N.E.2d 67 (2003). An abuse of discretion exists where no reasonable person would agree with the position of the trial court. Skubak, 339 Ill. App. 3d at 36.\nHere, the record shows that during pretrial discovery, the defendants disclosed the general opinions that Dr. Kennedy would testify to. More specifically, in his deposition, Dr. Kennedy testified that in 1995, a barium enema and a CT scan were considered equally acceptable methods for identifying appendicitis. During his deposition Dr. Kennedy also agreed that when he examined Jonathon Brax in 1995, a barium enema was a reasonable and appropriate test to diagnose appendicitis, and he was acting within the standard of care in relying on the results of that test. Although Dr. Kennedy was not specifically asked during his deposition whether, if the CT scan had been done in 1995, the findings as to Jonathon Brax would have been different than they were for the barium enema, the subject of a CT scan was raised during Dr. Kennedy\u2019s deposition. We find that the particular question and answer complained of at trial were permissible as an elaboration on, or a logical corollary to, the originally revealed opinion. See Skubak, 339 Ill. App. 3d at 39; Scassifero, 333 Ill. App. 3d at 860 (witnesses are allowed to elaborate or give logical corollaries to Rule 213 disclosures). Thus, we find no abuse of discretion in the trial court\u2019s allowance of the testimony.\nCONCLUSION\nFor the foregoing reasons, the decision of the trial court is affirmed.\nAffirmed.\nWOLFSON and SOUTH, JJ., concur.\n\u201cAppendicitis\u201d is defined as \u201cinflammation of the vermiform appendix characterized by usu. right-sided abdominal pain and sometimes by nausea and vomiting.\u201d Webster\u2019s Third New International Dictionary 104 (1986).\n\u201cGastroenteritis\u201d is defined as the \u201cinflamation of the lining membrane of the stomach and the intestines.\u201d Webster\u2019s Third New International Dictionary 939 (1986).\n\u201cGI\u201d stands for \u201cgastrointestinal.\u201d Webster\u2019s Third New International Dictionary 955 (1986).\n\u201cCecum\u201d is defined as \u201cthe blind pouch in which the large intestine begins and into which the ileum [the last division of the small intestine] opens from one side.\u201d Webster\u2019s Third New International Dictionary 358, 1125 (1986).\n\u201cCT\u201d is an abbreviation for \u201ccomputed tomography.\u201d Stedman\u2019s Medical Dictionary 343 (24th ed. 1982).\n\u201cMalrotation\u201d is \u201cfailure during embryonic development of normal rotation of all or any portion of the intestinal tract.\u201d Stedman\u2019s Medical Dictionary 830 (24th ed. 1982).\n\"Volvulus\u201d is \u201ca twisting of the intestine causing obstruction.\u201d Stedman\u2019s Medical Dictionary 1570 (24th ed. 1982).", "type": "majority", "author": "PRESIDING JUSTICE GARCIA" } ], "attorneys": [ "Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, and Kenneth T. Lumb, of counsel), for appellant.", "Bollinger, Ruberry & Garvey, of Chicago (Krista R. Frick and Robert M. Collins, of counsel), for appellees." ], "corrections": "", "head_matter": "TERRI BRAX, as Parent and Next Friend of Jonathan Brax, a Minor, Plaintiff-Appellant, v. MICHAEL KENNEDY et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1-04-0444\nOpinion filed December 6, 2005.\nCorboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, and Kenneth T. Lumb, of counsel), for appellant.\nBollinger, Ruberry & Garvey, of Chicago (Krista R. Frick and Robert M. Collins, of counsel), for appellees." }, "file_name": "0343-01", "first_page_order": 361, "last_page_order": 374 }