{ "id": 4278081, "name": "MARY WILLABY, Plaintiff-Appellant, v. CLARA BENDERSKY et al., Defendants-Appellants", "name_abbreviation": "Willaby v. Bendersky", "decision_date": "2008-06-25", "docket_number": "No. 1-04-1311", "first_page": "853", "last_page": "866", "citations": [ { "type": "official", "cite": "383 Ill. App. 3d 853" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "261 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "leaving a sponge in the abdomen an example of the \"common knowledge\" or \"gross negligence\" exception to expert testimony" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 2d 450", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1577251 ], "year": 1970, "pin_cites": [ { "page": "454", "parenthetical": "leaving a sponge in the abdomen an example of the \"common knowledge\" or \"gross negligence\" exception to expert testimony" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/125/0450-01" ] }, { "cite": "217 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "pin_cites": [ { "parenthetical": "\"If a sponge was left in the plaintiffs body she has established a prima facie case of negligence against the doctor and the burden of coming forth with the evidence then shifts to the defendant doctor\"" } ], "opinion_index": 0 }, { "cite": "69 Ill. App. 2d 433", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2591184 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "447", "parenthetical": "\"If a sponge was left in the plaintiffs body she has established a prima facie case of negligence against the doctor and the burden of coming forth with the evidence then shifts to the defendant doctor\"" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/69/0433-01" ] }, { "cite": "266 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "trial court erred in directing a verdict in favor of defendant doctor error where defendant doctor, called as an adverse witness, gave expert testimony sufficient to establish prima facie case" } ], "opinion_index": 0 }, { "cite": "131 Ill. App. 2d 61", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2903938, 2909055 ], "year": 1970, "pin_cites": [ { "page": "65", "parenthetical": "trial court erred in directing a verdict in favor of defendant doctor error where defendant doctor, called as an adverse witness, gave expert testimony sufficient to establish prima facie case" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0061-02", "/ill-app-2d/131/0061-01" ] }, { "cite": "381 N.E.2d 279", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "directed verdict at close of plaintiffs case proper where \"plaintiff *** failed to establish the requisite professional standard of care against which the defendant's conduct was to be judged\"" } ], "opinion_index": 0 }, { "cite": "72 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443658 ], "year": 1978, "pin_cites": [ { "page": "252", "parenthetical": "directed verdict at close of plaintiffs case proper where \"plaintiff *** failed to establish the requisite professional standard of care against which the defendant's conduct was to be judged\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0249-01" ] }, { "cite": "678 N.E.2d 1009", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "\"In Illinois, the established standard of care for all professionals is stated as the use of the same degree of knowledge, skill and ability as an ordinarily careful professional would exercise under similar circumstances\"" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544909 ], "year": 1996, "pin_cites": [ { "page": "23", "parenthetical": "\"In Illinois, the established standard of care for all professionals is stated as the use of the same degree of knowledge, skill and ability as an ordinarily careful professional would exercise under similar circumstances\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0001-01" ] }, { "cite": "771 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "331 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209200 ], "year": 2002, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0643-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "510" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "877 N.E.2d 1064", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "226 Ill. 2d 515", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610763 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "544" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0515-01" ] }, { "cite": "866 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "373 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4270437 ], "year": 2007, "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0001-01" ] }, { "cite": "806 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "209 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462131 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "114-15" }, { "page": "114-15" }, { "page": "115" }, { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0100-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "241-42" }, { "page": "243" }, { "page": "243" }, { "page": "243" }, { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "854 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "222 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602061 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "179" }, { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0147-01" ] }, { "cite": "787 N.E.2d 796", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "35" }, { "page": "35" }, { "page": "43-44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0001-01" ] }, { "cite": "728 N.E.2d 797", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "\"Violation of a motion in limine is not per se reversible error\"" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 375", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186533 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "395", "parenthetical": "\"Violation of a motion in limine is not per se reversible error\"" }, { "page": "395" }, { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0375-01" ] }, { "cite": "770 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "199 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58932 ], "year": 2002, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0325-01" ] }, { "cite": "876 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "parenthetical": "arguments not supported by relevant authority are waived" } ], "opinion_index": 0 }, { "cite": "376 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272565 ], "year": 2007, "pin_cites": [ { "page": "465", "parenthetical": "arguments not supported by relevant authority are waived" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0459-01" ] }, { "cite": "495 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535687 ], "year": 1986, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0712-01" ] }, { "cite": "648 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 68", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249313 ], "year": 1994, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0068-01" ] } ], "analysis": { "cardinality": 1194, "char_count": 33597, "ocr_confidence": 0.816, "pagerank": { "raw": 6.807318357121311e-08, "percentile": 0.41609317763313614 }, "sha256": "4793514b3bc25269a5066bb71786eb19718ddc92a434e9c5795ccca67439c1c1", "simhash": "1:d5a694f4194d65e0", "word_count": 5411 }, "last_updated": "2023-07-14T19:46:05.228492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARY WILLABY, Plaintiff-Appellant, v. CLARA BENDERSKY et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE GARCIA\ndelivered the opinion of the court:\nMary Willaby filed suit against Dr. Clara Bendersky, Dr. Hasmukh Patel, and Westlake Community Hospital, alleging medical negligence. A laparotomy sponge was left in Willaby\u2019s abdomen following surgery to repair an evisceration that occurred subsequent to a hysterectomy. The matter proceeded to a jury trial. At the close of all of the evidence, the trial court granted Westlake\u2019s motion for a directed verdict, and the jury subsequently returned a verdict in favor of Drs. Bendersky and Patel. Willaby raises several issues on appeal, including (1) Dr. Patel\u2019s closing argument denied her a fair trial, (2) the trial court erred in striking the testimony of her nursing expert and granting West-lake\u2019s motion for a directed verdict, and (3) the jury\u2019s verdict is against the manifest weight of the evidence. For the reasons that follow, we affirm in part, reverse in part, and remand the matter to the circuit court for a new trial against Westlake only.\nBACKGROUND\nIn 1997, Mary Willaby began experiencing abdominal pain. Wil-laby, who was 50 years old and obese, saw her doctor, Dr. Miller, who diagnosed her with having fibroid tumors in her uterus. Dr. Miller referred Willaby to the defendant Dr. Bendersky, a board-certified gynecologist and obstetrician. Dr. Bendersky recommended a total abdominal hysterectomy and bilateral salpingo-oopherectomy, the removal of both of Willaby\u2019s fallopian tubes and her uterus.\nDr. Bendersky performed the hysterectomy on June 16, 1997, at Westlake. When Dr. Bendersky closed Willaby\u2019s abdomen, she did not notice any \u201cintestinal adhesions\u201d \u2014 portions of Willaby\u2019s bowels that were stuck together. Willaby stayed at Westlake for several days recovering. During this time, Willaby\u2019s white blood cell count rose and she had a fever. She also experienced serosanguinous drainage, a drainage consisting of blood mixed with peritoneal fluid, from the surgery wound site. Willaby was discharged from Westlake on June 20.\nFollowing her discharge, Willaby experienced abdominal pain and bouts of projectile vomiting. She called Dr. Bendersky, who advised her to go to the Westlake emergency room. On June 21, 1997, Willaby was readmitted to Westlake and was referred to the defendant Dr. Patel, a board-certified general surgeon. Dr. Patel believed Willaby was suffering from either a bowel obstruction or a paralytic ileus, a condition commonly seen following hysterectomies where movements in the bowel slow.\nAlthough Dr. Patel considered operating on Willaby, he opted not to because her condition appeared to be resolving. Dr. Bendersky ordered a cystogram to determine whether Willaby\u2019s bladder had been injured during the hysterectomy. The cystogram came back negative. A nursing note in Willaby\u2019s chart indicated the presence of serosan-guinous drainage from the surgical wound and questioned whether Willaby\u2019s wound had become infected.\nOn June 30, 1997, Dr. Miller discharged Willaby. Before she left Westlake, Dr. Bendersky removed the skin staples from Willaby\u2019s hysterectomy wound and covered the wound with a bandage. Shortly after her staples were removed, and before she left Westlake, Willaby suffered a wound dehiscence, meaning the layers of her abdominal wall at the surgical site separated. Willaby then suffered an evisceration, a dangerous condition where her intestines emerged outside of her abdominal cavity through the wound dehiscence. Willaby was able to catch her intestines before they spilled onto the floor. She called for help and several nurses and a doctor responded. The doctor, who is unidentified in the record, was able to massage Willaby\u2019s intestines back into her abdomen. The doctor then applied an abdominal binder. Willaby was rushed to surgery with Dr. Patel.\nWhen Dr. Patel opened Willaby\u2019s abdomen, he noticed she had several adhesions \u2014 areas where her intestine was either stuck together or stuck to another organ. Dr. Patel also noticed that an internal suture from her hysterectomy wound was \u201cstuck\u201d to the peritoneum, the inner lining of Willaby\u2019s abdominal wall. Dr. Patel cut the suture to release it from the abdominal wall and freed the intestine from the stitch. Dr. Patel then brought out all of Willaby\u2019s intestines to examine them. A 12-inch portion of Willaby\u2019s small intestine was twisted and was not receiving blood. Dr. Patel removed this portion of the intestine and reconnected the healthy portions of the bowel. Because Willaby\u2019s appendix looked abnormal, Dr. Patel removed it. Subsequent pathological testing, however, revealed that Willaby\u2019s appendix was normal.\nBefore Dr. Patel closed Willaby\u2019s abdomen, he was assured by the nurses in the operating room that all laparotomy sponges and other instruments used in the surgery were accounted for. Dr. Patel closed Willaby\u2019s abdomen. However, unbeknownst to Dr. Patel, a 12-inch by 12-inch laparotomy sponge remained in Willaby\u2019s abdominal wall.\nThe sponge, like all laparotomy sponges, contained a radiopaque tail making it detectable by X ray. Dr. Patel ordered an X ray of Wil-laby on July 6, 1997, \u201cto see how the intestines were looking.\u201d The X ray indicated the presence of a foreign object, which was determined to be a surgical drain. Dr. Patel was aware a surgical drain had not been placed in Willaby\u2019s abdomen. However, he did not see the X ray report until November 1997. By that time, Willaby had returned to Dr. Miller complaining of nausea and leakage from her navel. Dr. Miller ordered a CAT scan, which indicated the presence of a foreign object. On December 1, 1997, Dr. Patel performed exploratory surgery on Wil-laby and discovered the laparotomy sponge.\nWillaby filed a medical negligence suit against Dr. Bendersky, Dr. Patel, and Westlake. On November 6, 2003, the date trial was set to commence, Willaby filed a motion for summary judgment, claiming there was no factual dispute that (1) Dr. Bendersky placed a suture through Willaby\u2019s bowel, (2) Dr. Patel allowed a sponge to remain in Willaby\u2019s abdomen, and (3) Westlake failed to comply with its procedures and protocols to ensure a proper sponge count was achieved and failed to conduct a sponge count after the June 30, 1997, surgery. Willaby also filed a \u201cMotion for Ruling on Res [Ipsa] Loquitur,\u201d in which she asked the court \u201cfor a ruling granting the applicability of the doctrine of res ipsa loquitur\u201d in regard to Dr. Bendersky, Dr. Patel, and Westlake.\nThe trial court denied Willaby\u2019s summary judgment motion, finding it untimely. No ruling on the res ipsa loquitur motion appears in the record. The trial court also granted several motions in limine, including one filed by Dr. Patel seeking to bar any reference to the parties\u2019 finances. On November 14, 2003, a jury trial began.\nI. Dr. Bendersky\nWillaby sought to prove at trial that Dr. Bendersky, when performing the hysterectomy, negligently placed a suture through her bowel, which became infected and led to the wound dehiscence and evisceration. According to this theory, Dr. Bendersky and Dr. Patel should have recognized the rise in her white blood cell count, her fever, and the serosanguinous drainage as signs of an infection and a pending wound dehiscence and evisceration. Willaby claimed, however, they negligently failed to respond to those signs.\nTo support this theory, Willaby called Dr. Bendersky to testify as an adverse witness. Dr. Bendersky acknowledged the rise in white blood cell count and temperature, but testified she was not concerned because they normally rise following surgery. Dr. Bendersky was not concerned with the serosanguinous drainage because its appearance was not purulent, or pus-like. Dr. Bendersky also testified that she did not place a stitch through Willaby\u2019s bowel during the hysterectomy.\nWillaby also called Dr. Patel to testify as an adverse witness. According to Dr. Patel, Willaby did not exhibit any signs of a wound de-hiscence, such as a wound infection or increased abdominal pressure. Dr. Patel was not concerned with the serosanguinous drainage because it commonly occurs in obese patients as fat drains out of the wound. Dr. Patel testified that the wound dehiscence and evisceration were likely caused by coughing. According to Dr. Patel, a nurse told him Willaby sat up in bed and coughed prior to the wound dehiscence and evisceration.\nDr. Patel acknowledged that during the evisceration repair surgery, he noticed that Willaby\u2019s bowel had several adhesions. Although adhe-sions can be an indication of an infection, they are commonly seen after surgery and can occur for unknown reasons. In Dr. Patel\u2019s opinion, Willaby did not have any kind of wound or abdominal infection during her entire hospitalization.\nWillaby presented expert testimony from Dr. Melvin Gerbie, a board-certified obstetrician-gynecologist, and Dr. Rogelio Riera, a retired general surgeon. Dr. Gerbie testified Dr. Bendersky failed to identify and act upon Willaby\u2019s symptoms, especially the serosangui-nous drainage, indicating a pending wound dehiscence and evisceration. Dr. Riera testified that both Dr. Bendersky and Dr. Patel deviated from the standard of care when they failed to \u201cexplore\u201d Willaby\u2019s surgical wound by opening it and draining it prior to the evisceration. It was the opinion of Dr. Gerbie and Dr. Riera that an errant stitch through Willaby\u2019s bowel caused an infection that ultimately caused the wound dehiscence and evisceration. Dr. Gerbie did not believe the wound dehiscence and evisceration were caused by coughing.\nDr. Gerbie acknowledged that wound dehiscence is often associated with obesity, in part because of the increased intra-abdominal pressure put on the incision. He also testified that suturing a bowel was not necessarily a deviation of the standard of care.\nDr. Bendersky presented expert testimony from Dr. Lance Mercer, a board-certified obstetrician-gynecologist. It was Dr. Mercer\u2019s opinion that Dr. Bendersky did not place a stitch through Willaby\u2019s bowel. However, even if she did place such a stitch, it would not be a deviation of the standard of care.\nDr. Mercer also explained that pus, not serosanguinous drainage, is indicative of an infection. Serosanguinous drainage could be indicative of a wound dehiscence and evisceration if it is \u201ccopious,\u201d meaning it continues to pour out of the patient. In his view, Willaby\u2019s drainage was not copious. Rather, some amount of drainage would be expected in an overweight patient with a long incision. Dr. Mercer disagreed with Dr. Gerbie\u2019s opinion that the presence of serosanguinous drainage required an exploration of the wound.\nDr. Mercer did not know what caused Willaby\u2019s wound dehiscence and evisceration, but opined Willaby\u2019s obesity was a factor. He did not believe an infection was the cause. He also did not believe the removal of Willaby\u2019s staples played any role in the wound dehiscence and evisceration.\nDr. Richard Jorgenson, a board-certified general surgeon, gave expert testimony on behalf of Dr. Patel. Dr. Jorgenson explained that an evisceration is \u201ca sudden monumental event\u201d that cannot be anticipated. Dr. Jorgenson did not find the serosanguinous drainage, the elevated white blood cell count or the fever to indicate a pending wound dehiscence and evisceration. A fever and an elevated white blood cell count are both nonspecific findings. Further, instances of se-rosanguinous drainage will usually heal themselves. Dr. Jorgenson also testified that exploring the wound prior to June 30, 1997, would not have prevented the wound dehiscence and evisceration and could have possibly exposed the wound to an infection. In Dr. Jorgenson\u2019s opinion, Willaby\u2019s wound dehiscence and evisceration occurred because she had weak tissue. Her obesity was also a contributing factor, as obesity leads to healing difficulties. According to Dr. Jorgenson, Dr. Patel\u2019s treatment before and after the wound dehiscence and evisceration complied with the standard of care.\nII. Dr. Patel\nWillaby sought to prove at trial that Dr. Patel, as the surgeon in charge of the evisceration repair, was responsible for the sponge being left in her abdomen and that he acted negligently when he removed Willaby\u2019s normal appendix.\nDr. Patel testified it was his responsibility as a surgeon to make sure that all sponges are removed from a patient\u2019s body before closing the patient. He also admitted that only he had the ability to put a sponge in a patient and remove it. Dr. Patel was not concerned that a sponge had been left in Willaby because the nurses reported the sponge count as correct.\nDr. Gerbie acknowledged that in some situations, such as in an emergency, a sponge may be left in a patient without any negligence on the part of healthcare providers. However, in this case, Willaby\u2019s wound dehiscence and evisceration ceased to be an emergency once her bowel was resected. Dr. Gerbie and Dr. Riera both testified Dr. Patel deviated from the standard of care in leaving the sponge behind. Dr. Riera, however, agreed that it was within the standard of care for Dr. Patel to rely on a sponge count as communicated by the nurses. Dr. Riera also testified it was improper for a doctor to remove a healthy organ without the patient\u2019s consent.\nAccording to Dr. Jorgenson, leaving the sponge behind was not a deviation of the standard of care because the evisceration repair surgery was an emergency. He also testified that it was within the standard of care for Dr. Patel to rely on the sponge count as communicated by the nurses. Dr. Jorgenson also explained that the appendix serves no purpose in the body. He testified it was common practice to remove an abnormal looking appendix because leaving it in can be fatal. He also explained there is no way to perform a biopsy on an appendix during an operation.\nIII. Westlake\nThe theory Willaby sought to prove against Westlake was that the nurses were negligent in failing to perform an accurate sponge count.\nTestimony from Westlake nurses Mary George, Donna Leder, and Mercedes Fitzgerald established that except in emergency cases, West-lake\u2019s nursing policy requires nurses to count all sponges at least three times: an initial count taken prior to the surgery; a first count taken during surgery when the first layer of the abdominal wall is closed; a final count taken when the final layer of the abdominal wall is closed. An interim count is required to be taken when a nursing shift change occurs during surgery. This count is not necessarily accurate because sponges may have been placed in the patient\u2019s body and the surgeon cannot be expected to remove them so they can be counted.\nEach count of the sponges involves two nurses. For the initial count, the \u201cscrub nurse\u201d unwraps each sponge from its packaging and counts each aloud. The scrub nurse also checks that each sponge has a radiopaque tail. The \u201ccirculating nurse\u201d records the number of sponges unwrapped on a \u201ccount sheet.\u201d The count totals from the subsequent counts are then matched against the initial count.\nThe count sheet, however, is only \u201ctemporary,\u201d meaning it does not become part of the patient\u2019s medical chart. An \u201cintraoperative report,\u201d which contains the nurses\u2019 signatures indicating the counts taken are correct, is kept in a patient\u2019s chart. The intraoperative report, however, does not indicate the actual number of sponges used.\nNurse George was the scrub nurse for Willaby\u2019s hysterectomy surgery. At trial, Nurse George identified the intraoperative report from that surgery. The report was signed, indicating the first and final counts matched the initial count.\nNurse Leder was a scrub nurse for Willaby\u2019s evisceration repair surgery. At trial, Nurse Leder identified the intraoperative report from that surgery, which indicated the counts were done and were accurate. She also testified she was relieved by Nurse Mercedes Fitzgerald in the middle of the surgery.\nNurse Fitzgerald testified she followed Westlake\u2019s sponge-counting procedures during Willaby\u2019s evisceration repair surgery. Fitzgerald also identified Willaby\u2019s intraoperative report where her signature indicated the first and final counts were taken and that they matched the initial count. According to Fitzgerald, her count was correct.\nWillaby also presented expert testimony from Nurse Lutricia Cloud, who testified the Westlake nurses deviated from the standard of care by failing to maintain an accurate sponge count, by failing to follow nursing and hospital protocol regarding counting sponges, and by failing to advise Dr. Patel they did not have an accurate sponge count. Nurse Cloud defined the standard of care as \u201cthe best possible care for patients which prevents or avoids causing them any harm.\u201d\nWestlake presented expert testimony from Nurse William Culver. Nurse Culver testified that Westlake\u2019s sponge-counting policy complied with the standard of care and that the nurses complied with the policy during Willaby\u2019s evisceration repair surgery. Nurse Culver defined the standard of care as \u201cwhat a reasonably qualified registered nurse would do in the same or similar situation.\u201d\nAfter the presentation of evidence concluded, Willaby sought leave to file a first-amended complaint to conform the pleadings to the proofs and to add a res ipsa loquitur count against Dr. Patel. The trial court allowed the motion.\nThe court next considered a motion filed by Westlake to strike Nurse Cloud\u2019s testimony on the basis that she failed to properly identify the standard of care. The trial court granted the motion, stating,\n\u201cLooking at Nurse Cloud\u2019s testimony in its best light, Nurse Cloud never stated that she was familiar with the applicable standard of care for nurses practicing in the Chieagoland area.\n* * *\nWere I to allow her testimony to go to the jury in the manner and form that it was offered, the jury would be called upon to apply an incorrect standard of care for nurses based solely on Cloud\u2019s testimony. And Cloud is the only one called by the plaintiff who directly criticizes the nurses.\u201d\nBased on the striking of Nurse Cloud\u2019s testimony by the trial court, Westlake filed a motion for a directed verdict. The trial court granted the motion \u201cdue to the insufficiency of Nurse Cloud\u2019s testimony as a matter of law.\u201d\nIV Verdict\nThe jury returned a verdict in favor of Drs. Patel and Bendersky. Willaby\u2019s posttrial motion was denied, and this timely appeal followed.\nANALYSIS\nBefore addressing the issues properly before us, we make two observations. First, Willaby challenges several of the trial court\u2019s rulings, including allowing certain testimony that amounted to hearsay, allowing certain testimony that should have been barred by Supreme Court Rule 213 (210 Ill. 2d R. 213), and rejecting a certain jury instruction. With the exception of cases of limited value which are neither explained nor analyzed, Willaby fails to provide a reasoned basis for these contentions. \u201c \u2018The appellate court is not a depository in which the appellant may dump the burden of argument and research.\u2019 \u201d In re Marriage of Auriemma, 271 Ill. App. 3d 68, 72, 648 N.E.2d 118 (1994), quoting Thrall Car Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719, 495 N.E.2d 1132 (1986). Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)) requires the appellant to clearly set out the issues raised, supported by relevant authority. Because Willaby has failed to do this, these arguments are waived. Universal Casualty Co. v. Lopez, 376 Ill. App. 3d 459, 465, 876 N.E.2d 273 (2007) (arguments not supported by relevant authority are waived).\nSecond, Willaby appeals the trial court\u2019s denial of her motion for summary judgment against Westlake. However, our supreme court has explained that the denial of a motion for summary judgment is not reviewable on appeal where the motion raises only factual issues, like that filed by Willaby in this case, because \u201cany error is merged into the judgment entered at trial.\u201d Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 355, 770 N.E.2d 177 (2002). Accordingly, we do not consider this issue.\nAs to the issues properly before us, we first address Willaby\u2019s contentions against Dr. Patel and Dr. Bendersky and then her contentions against Westlake.\nI. Dr. Patel and Dr. Bendersky\nWillaby contends certain comments made by counsel for Dr. Patel in his closing argument denied her a fair trial. She also contends the jury\u2019s verdict in favor of Drs. Patel and Bendersky is contrary to the manifest weight of the evidence.\nA. Closing Argument\nIn concluding his closing argument, counsel for Dr. Patel stated, \u201cThe decision facing a doctor who is sued for malpractice is a difficult one. Should he defend himself in court risking his financial future?\u201d Counsel for Willaby promptly objected. The trial court sustained the objection and instructed the jury to disregard the comment.\nWillaby contends the reference to Dr. Patel\u2019s \u201cfinancial future\u201d denied her a fair trial and constituted reversible error. Willaby argues Dr. Patel\u2019s finances were not at issue in the case and notes Dr. Patel himself filed a motion in limine seeking to bar any reference to the parties\u2019 finances.\nAn improper comment that also violates a motion in limine does not necessarily constitute reversible error. See Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 395, 728 N.E.2d 797 (2000) (\u201cViolation of a motion in limine is not per se reversible error\u201d). To constitute reversible error, such a comment must cause substantial prejudice, not cured by the trial court\u2019s actions. \u201cImproper comments generally do not constitute reversible error unless the party has been substantially prejudiced.\u201d Magna Trust Co., 313 Ill. App. 3d at 395. Where the trial court sustains a timely objection and instructs the jury to disregard the improper comment, the court sufficiently cures any prejudice. Magna Trust Co., 313 Ill. App. 3d at 395.\nIn this case, there is no question that counsel\u2019s reference to the doctor\u2019s financial future was improper. However, the trial court immediately sustained Willaby\u2019s objection and instructed the jury to disregard the offending comment. Willaby puts forth no argument that substantial prejudice remained even after the trial court took this prompt action. Accordingly, we reject Willaby\u2019s claim of reversible error based on defense counsel\u2019s improper comment.\nB. The Sufficiency of the Evidence\nWillaby contends the jury\u2019s verdict in favor of Dr. Bendersky and Dr. Patel is against the manifest weight of the evidence.\nIn an appeal from a jury verdict, \u201ca reviewing court may not simply reweigh the evidence and substitute its judgment for that of the jury.\u201d Snelson v. Kamm, 204 Ill. 2d 1, 35, 787 N.E.2d 796 (2003). Rather, a jury verdict may be reversed only where it is against the manifest weight of the evidence. Snelson, 204 Ill. 2d at 35. \u201cA verdict is contrary to the manifest weight of the evidence when the opposite conclusion is clearly evident or when the jury\u2019s findings prove to be unreasonable, arbitrary and not based upon any of the evidence.\u201d York v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 222 Ill. 2d 147, 179, 854 N.E.2d 635 (2006).\nWillaby presented evidence at trial to show Dr. Bendersky deviated from the standard of care by placing a suture in her bowel and by failing to detect an infection that led to the wound dehiscence and evisceration. Willaby also presented evidence that Dr. Patel failed to diagnose a pending wound dehiscence and evisceration, left a sponge in her abdomen, and negligently removed her healthy appendix. The defendant doctors, however, presented evidence that Dr. Bendersky did not place a stitch through her bowel and that the wound dehis-cence and evisceration were not caused by an infection but, rather, occurred because Willaby was obese, because Willaby coughed, or because of unknown reasons. Dr. Patel also presented evidence demonstrating that he acted within the standard of care when he relied on the nurses\u2019 representation that there was an accurate sponge count and when he removed an abnormal looking appendix.\nWillaby essentially argues on appeal that her theory of liability against Dr. Bendersky and Dr. Patel should have been accepted by the jury. However, where the parties present conflicting evidence, we cannot say the jury\u2019s verdict is against the manifest weight of the evidence. York, 222 Ill. 2d at 179.\nBecause the evidence was conflicting, we do not disturb the jury\u2019s verdict in favor of Drs. Patel and Bendersky.\nII. Westlake\nTurning to the contentions against Westlake, Willaby argues the trial court erred when it struck the entirety of Nurse Cloud\u2019s expert testimony and directed a verdict in Westlake\u2019s favor.\nA plaintiff in a medical negligence case must plead and prove three elements: (1) the proper standard of care against which the defendant healthcare professional\u2019s conduct is measured; (2) a deviation of that standard; and (3) an injury proximately caused by that deviation. Purtill v. Hess, 111 Ill. 2d 229, 241-42, 489 N.E.2d 867 (1986). Generally, \u201cexpert testimony is necessary in professional negligence cases to establish the standard of care and that its breach was the proximate cause of the plaintiffs injury.\u201d Snelson v. Kamm, 204 Ill. 2d 1, 43-44, 787 N.E.2d 796 (2003). In this case, Willaby called Nurse Lutricia Cloud as her expert witness.\nIn Illinois, two foundational requirements and a discretionary requirement of competency must be established before a health care professional may offer expert testimony regarding the standard of care. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 114-15, 806 N.E.2d 645 (2004); Purtill, 111 Ill. 2d at 243; Alm v. Loyola University Medical Center, 373 Ill. App. 3d 1, 5, 866 N.E.2d 1243 (2007). Specifically, a trial court must determine (1) whether the healthcare professional is a licensed member of the school of medicine about which he or she proposes to testify, and (2) whether the healthcare professional is familiar with the methods, procedures, and treatments ordinarily observed by other healthcare providers in either the defendant\u2019s community or a similar community. Sullivan, 209 Ill. 2d at 114-15; Purtill, 111 Ill. 2d at 243. Once these foundational requirements are met, the trial court has discretion to find the healthcare professional qualified and competent to state his or her opinion regarding the standard of care. Sullivan, 209 Ill. 2d at 115; Purtill, 111 Ill. 2d at 243.\nWestlake does not argue Nurse Cloud was not qualified or competent to state her opinion. Rather, Westlake\u2019s claim is that Nurse Cloud\u2019s testimony did not accurately state the applicable standard of care for the Westlake nurses. Based on her failure to properly identify the standard of care, the trial court sustained Westlake\u2019s motion to strike Nurse Cloud\u2019s testimony and directed a verdict in Westlake\u2019s favor \u201cdue to the insufficiency of Nurse Cloud\u2019s testimony as a matter of law.\u201d\nThe long-standing rule in Illinois is that \u201ca verdict should be directed only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.\u201d Heastie v. Roberts, 226 Ill. 2d 515, 544, 877 N.E.2d 1064 (2007), citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). A directed verdict is reviewed de novo. Schiff v. Friberg, 331 Ill. App. 3d 643, 657, 771 N.E.2d 517 (2002).\nNurse Cloud testified the Westlake nurses failed to maintain an accurate sponge count, failed to follow nursing and hospital protocol regarding counting sponges, and failed to advise Dr. Patel that they did not have an accurate sponge count. She defined the standard of care as \u201cthe best possible care for patients which prevents or avoids causing them any harm.\u201d\nIt is true that Nurse Cloud did not accurately describe the standard of care applicable in an Illinois professional negligence case. See, e.g., Advincula v. United Blood Services, 176 Ill. 2d 1, 23, 678 N.E.2d 1009 (1996) (\u201cIn Illinois, the established standard of care for all professionals is stated as the use of the same degree of knowledge, skill and ability as an ordinarily careful professional would exercise under similar circumstances\u201d). However, Nurse Culver\u2019s expert testimony accurately described the standard of care as \u201cwhat a reasonably qualified registered nurse would do in the same or similar situation.\u201d While Nurse Culver testified on behalf of the defense after the plaintiff rested her case, we are obliged by Pedrick, 37 Ill. 2d at 510, to consider all of the evidence when determining whether a directed verdict is proper at the close of the case. Cf. Walski v. Tiesenga, 72 Ill. 2d 249, 252, 381 N.E.2d 279 (1978) (directed verdict at close of plaintiffs case proper where \u201cplaintiff *** failed to establish the requisite professional standard of care against which the defendant\u2019s conduct was to be judged\u201d). The record also contains additional testimony regarding the standard of care provided by Nurses George, Leder, and Fitzgerald, who described in detail Westlake\u2019s sponge-counting procedures. Because evidence of the applicable standard of care was before the jury, the trial court erred in directing a verdict based on Nurse Cloud\u2019s inaccurate testimony regarding the applicable standard of care.\nIt also was not proper to strike all of Nurse Cloud\u2019s testimony simply because she inaccurately stated the standard of care. Other aspects of Nurse Cloud\u2019s testimony, including that the nurses failed to maintain an accurate sponge count, deviated from Westlake\u2019s sponge-counting procedures, and failed to notify Dr. Patel of the inaccurate count, were properly before the jury.\nWhen we consider all of the evidence in Willaby\u2019s favor, we cannot say a verdict for Willaby on the issue of Westlake\u2019s negligence could not stand. See Anderson v. Martzke, 131 Ill. App. 2d 61, 65, 266 N.E.2d 137 (1970) (trial court erred in directing a verdict in favor of defendant doctor error where defendant doctor, called as an adverse witness, gave expert testimony sufficient to establish prima facie case).\nEven if we were to find the testimony from Nurses Culver, George, Leder, and Fitzgerald insufficient to establish the applicable standard of care as a matter of law, we are unconvinced a directed verdict would be warranted.\nIt has been established that leaving a sponge in a patient\u2019s body following surgery is prima facie evidence of medical negligence. Piacentini v. Bonnefil, 69 Ill. App. 2d 433, 447, 217 N.E.2d 507 (1966) (\u201cIf a sponge was left in the plaintiffs body she has established a prima facie case of negligence against the doctor and the burden of coming forth with the evidence then shifts to the defendant doctor\u201d). Under similar facts here, Willaby was not obligated to present an expert to establish the standard of care and its breach. An expert witness is not required where the defendant\u2019s actions are grossly apparent or where the treatment is so common that a layperson would understand the conduct without the necessity of an expert. See Heastie, 226 Ill. 2d at 554; Sullivan, 209 Ill. 2d at 112; Purtill, 111 Ill. 2d at 242.\nFailing to keep an accurate count of sponges so that a sponge is left in a patient\u2019s body following surgery is an example of such a case. See Comte v. O\u2019Neil, 125 Ill. App. 2d 450, 454, 261 N.E.2d 21 (1970) (leaving a sponge in the abdomen an example of the \u201ccommon knowledge\u201d or \u201cgross negligence\u201d exception to expert testimony); Restatement (Second) of Torts \u00a7328D, Comment d, at 158 (1965) (\u201cthere are other kinds of medical malpractice, as where a sponge is left in the plaintiff\u2019s abdomen after an operation, where no expert is needed to tell the jury that such events do not usually occur in the absence of negligence\u201d). Based on the presence of the sponge in Willa-by\u2019s abdomen, she established a prima facie case of medical negligence. The burden then shifted to Westlake to explain that the failure of the nurses to keep an accurate count such that a sponge was left in Willa-by\u2019s abdomen was the result of something other than its negligence. Piacentini, 69 Ill. App. 2d at 447.\nFor these reasons we cannot say the evidence so overwhelmingly favored Westlake that a directed verdict in its favor was warranted. Accordingly, the trial court erred in directing such a verdict.\nWillaby additionally raises the contention that the trial court erred when it refused to allow her to amend her complaint to include a negligence count based on res ipsa loquitur against Westlake. In light of our determination that a remand for a new trial against Westlake is in order, we do not decide this issue. Rather, we leave the issue to the sound discretion of the trial court upon remand.\nCONCLUSION\nFor the reasons stated above, we affirm the circuit court\u2019s entry of judgment in favor of Dr. Patel and Dr. Bendersky. We reverse the circuit court\u2019s grant of a directed verdict in favor of Westlake and remand for a new trial as to Westlake only.\nAffirmed in part and reversed in part; cause remanded.\nWOLFSON and R. GORDON, JJ., concur.", "type": "majority", "author": "JUSTICE GARCIA" } ], "attorneys": [ "Michael C. Goode, of Chicago, for appellant.", "Edward M. Kay, Richard L. Murphy, and Paula M. Carstensen, all of Clausen Miller, EC., of Chicago, for appellee Hasmukh Patel.", "Mark J. Lura and Diane I. Jennings, both of Anderson, Rasor & Partners, LLF\u00a1 of Chicago, for other appellees." ], "corrections": "", "head_matter": "MARY WILLABY, Plaintiff-Appellant, v. CLARA BENDERSKY et al., Defendants-Appellants.\nFirst District (1st Division)\nNo. 1\u201404\u20141311\nOpinion filed June 25, 2008.\nMichael C. Goode, of Chicago, for appellant.\nEdward M. Kay, Richard L. Murphy, and Paula M. Carstensen, all of Clausen Miller, EC., of Chicago, for appellee Hasmukh Patel.\nMark J. Lura and Diane I. Jennings, both of Anderson, Rasor & Partners, LLF\u00a1 of Chicago, for other appellees." }, "file_name": "0853-01", "first_page_order": 869, "last_page_order": 882 }