{ "id": 4293914, "name": "CLINTON DEAN LOVELL, Plaintiff-Appellee, v. SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellant", "name_abbreviation": "Lovell v. Sarah Bush Lincoln Health Center", "decision_date": "2010-01-12", "docket_number": "No. 4\u201409\u20140249", "first_page": "890", "last_page": "902", "citations": [ { "type": "official", "cite": "397 Ill. App. 3d 890" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "915 N.E.2d 908", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "922", "parenthetical": "a plaintiff need not present unequivocal evidence of causation but, instead, can meet his burden through the introduction of circumstantial evidence from which a jury may infer connected facts that reasonably follow according to common experience" } ], "opinion_index": 0 }, { "cite": "394 Ill. App. 3d 439", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291538 ], "year": 2009, "pin_cites": [ { "page": "454", "parenthetical": "a plaintiff need not present unequivocal evidence of causation but, instead, can meet his burden through the introduction of circumstantial evidence from which a jury may infer connected facts that reasonably follow according to common experience" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/394/0439-01" ] }, { "cite": "846 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "211" } ], "opinion_index": 0 }, { "cite": "364 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263306 ], "year": 2006, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0283-01" ] }, { "cite": "898 N.E.2d 658", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "669" } ], "opinion_index": 0 }, { "cite": "385 Ill. App. 3d 585", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4280308 ], "year": 2008, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/385/0585-01" ] }, { "cite": "743 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "138" } ], "opinion_index": 0 }, { "cite": "195 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725355 ], "year": 2000, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0001-01" ] }, { "cite": "860 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "233" } ], "opinion_index": 0 }, { "cite": "223 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604853 ], "year": 2006, "pin_cites": [ { "page": "272-73" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0187-01" ] }, { "cite": "915 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "451" } ], "opinion_index": 0 }, { "cite": "394 Ill. App. 3d 163", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4290444 ], "year": 2009, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/394/0163-01" ] }, { "cite": "843 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2006, "pin_cites": [ { "page": "376" }, { "page": "376" } ], "opinion_index": 0 }, { "cite": "218 Ill. 2d 232", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5736011 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "251" }, { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0232-01" ] }, { "cite": "874 N.E.2d 43", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "56", "parenthetical": "forfeiture is the failure to make a timely assertion of a known right whereas waiver is the intentional relinquishment of a known right" } ], "opinion_index": 0 }, { "cite": "226 Ill. 2d 208", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610710 ], "year": 2007, "pin_cites": [ { "page": "229", "parenthetical": "forfeiture is the failure to make a timely assertion of a known right whereas waiver is the intentional relinquishment of a known right" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0208-01" ] }, { "cite": "851 N.E.2d 800", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2006, "pin_cites": [ { "page": "809" }, { "page": "809" } ], "opinion_index": 0 }, { "cite": "366 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265580 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "165-66" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/366/0156-01" ] }, { "cite": "862 N.E.2d 1102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "1138" } ], "opinion_index": 0 }, { "cite": "371 Ill. App. 3d 382", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268505 ], "year": 2007, "pin_cites": [ { "page": "419-20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/371/0382-01" ] }, { "cite": "775 N.E.2d 154", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "167" } ], "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 289", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 487252 ], "year": 2002, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0289-01" ] }, { "cite": "711 N.E.2d 1160", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "1169" } ], "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 197", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208062 ], "year": 1999, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0197-01" ] }, { "cite": "895 N.E.2d 271", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 1 }, { "cite": "384 Ill. App. 3d 350", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4278429 ], "year": 2008, "opinion_index": 1, "case_paths": [ "/ill-app-3d/384/0350-01" ] } ], "analysis": { "cardinality": 1171, "char_count": 28607, "ocr_confidence": 0.746, "pagerank": { "raw": 4.518461695170957e-08, "percentile": 0.2832423820848243 }, "sha256": "8a2a78e1ef0e9ff35b8e1671e8ae9fdbfe363e106aef0e2245d294a3e17c110b", "simhash": "1:e6f21d8f974caed0", "word_count": 4548 }, "last_updated": "2023-07-14T19:15:46.302641+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CLINTON DEAN LOVELL, Plaintiff-Appellee, v. SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn June 2005, plaintiff, Clinton Dean Lovell, sued defendant, Sarah Bush Lincoln Health Center (Health Center), for medical malpractice, claiming that the Health Center\u2019s negligence following his August 2003 surgery caused him severe and permanent injury. Following a September 2008 trial, a jury returned a verdict in Lovell\u2019s favor and awarded him $2,378,258.\nThe Health Center appeals, arguing that (1) it is entitled to a new trial because of Lovell\u2019s argumentative and prejudicial comments during his opening statement and (2) the trial court abused its discretion by (a) denying its motion for a mistrial based on Lovell\u2019s improper closing argument and (b) allowing Lovell to introduce evidence regarding certain medical literature related to its standard of care after the Health Center had stipulated that it breached that standard. Because we (1) conclude that the Health Center forfeited any challenge to Lovell\u2019s opening statement and (2) disagree that the court abused its discretion, we affirm.\nI. BACKGROUND\nA. The Pertinent Portion of Lovell\u2019s Opening Statement\nAt the start of Lovell\u2019s opening statement\u2014which we note comprised 27 pages of the record\u2014his counsel stated, in pertinent part, the following:\n\u201cMistakes matter. Negligence matters. On August 16, 2003, a [Health Center] nurse disregarded a doctor\u2019s order that caused devastating and grotesque injury to *** Lovell.\nIn this case, [the Health Center] has admitted negligence. They have admitted that they committed medical malpractice. So why are we here? We\u2019re here today because rather than taking *** responsibility for their actions, they are going to tell you that mistakes don\u2019t matter. That negligence doesn\u2019t matter. That bad things just coincidentally happen to good people at the exact time malpractice occurs.\u201d\nB. The Evidence Presented at Trial\nThe evidence presented at the September 2008 trial, which consisted, in pertinent part, of testimony from (1) Lovell, (2) an emergency room physician, (3) Lovell\u2019s urologist, (4) a certified nursing assistant (CNA), and (5) various medical experts, showed the following.\nIn July 2003, Lovell was diagnosed with prostate cancer. On August 11, 2003, Lovell underwent a \u201cradical retropubic prostatectomy\u201d at the Health Center to remove his prostate. As a result of the prostatectomy, a \u201cFoley catheter\u201d was used to help Lovell urinate. On August 15, 2003, Lovell returned to one of the two urologists who had performed his prostatectomy, complaining of \u201ca bloated, constipated feeling.\u201d The urologist examined Lovell and noted that (1) he did not have nausea, infection, or a fever; (2) he had normal bowel sounds; (3) he had regained normal bowel movements; and (4) the urine in his catheter bag was clear. The urologist opined that Lovell was proceeding through \u201ca normal course of healing.\u201d\nThe next day, Lovell went to the Health Center\u2019s emergency room because his condition had not improved. The emergency room physician initially diagnosed Lovell with a \u201cpostoperative ileus,\u201d which the physician explained is a condition in which the bowel does not have its normal rhythmic pulsating muscular function to propel liquid and food in one direction. A later urinalysis revealed that Lovell had a significant urinary-tract infection, which the physician opined could have originated from Lovell\u2019s catheter. The physician explained Lovell\u2019s examination results did not indicate that he was suffering from a postoperative fistula, which is an abnormal opening formed by disease or injury leading from one cavity to another (such as an opening between the rectum and bladder). That same day, the physician admitted Lovell to the Health Center.\nA family physician later examined Lovell and wrote the following order in his hospital chart: \u201cFleets enema\u2014if okay with Dr. Rives [(who was Lovell\u2019s urologist)].\u201d Shortly thereafter, a nurse\u2014who had not obtained the required approval from Dr. Rives\u2014ordered a CNA to give Lovell a tap-water enema. After administering a \u201ctiny amount\u201d of water, the CNA noticed it leaking into Lovell\u2019s catheter bag, which was abnormal. The CNA reported the problem and then retrieved Lovell\u2019s chart to document the event and noticed the family physician\u2019s order that giving the Fleets enema was conditioned upon Dr. Rives\u2019 approval.\nAfter being informed by a nurse of the enema incident, Dr. Rives later determined that Lovell had a fistula, which he explained had occurred between his rectum and his bladder. Dr. Rives opined that to a reasonable degree of medical certainty, the enema the Health Center administered to Lovell\u2014which he would not have approved\u2014caused the fistula. In particular, the urologist stated the following:\n\u201cThe rectum is only a few millimeters thick, and after surgery, it certainly is more compromised than it would be before the surgery. The *** area that we closed with those stitches, is laying right on top of that thin rectum. I feel this fistula occurred either from one of two mechanisms. Either the pressure of giving that liquid, just the increased pressure of inflating the rectum caused the leakage to come through at that point, or the enema tip directly compromised the rectum and opened up the rectum into the freshly sutured area.\u201d\nIn an unsuccessful attempt to determine if the passage of time would heal the fistula, Lovell underwent the following medical procedures: (1) nutrition supplied intravenously for approximately two weeks following the enema; (2) a September 2003 colostomy, which diverted his stool from encountering the fistula; and (3) a January 2004 operation to implement a bladder catheter, which diverted his urine directly from his bladder through his abdominal wall and into a catheter bag to avoid the still unhealed fistula. In April 2004, Lovell underwent surgery to repair the fistula. In July 2004, Lovell\u2019s colostomy was reversed. In October 2004, Lovell had surgery to correct his urinary incontinence by implanting an artificial sphincter in his scrotum.\nLovell explained to the jury the procedure that he needed to follow to urinate after the artificial sphincter was implanted. Specifically, he would (1) drop his pants, (2) sit on the commode, where he could spread his legs, and (3) locate and press the releasing bulb several times on the artificial sphincter. The bulb would release an internal pressure cuff\u2014that was wrapped around his urethra\u2014which allowed him to urinate. Lovell commented that because the artificial sphincter would fail about twice a year, he continually maintained a second set of clothes. He also explained that he had to wear diapers\u2014which he occasionally had to change up to three times a day-r-because the artificial sphincter would occasionally leak if he coughed or placed pressure on his stomach by bending over.\nLovell presented expert medical testimony from a colorectal surgeon and urologist who, respectively, opined to a reasonable degree of medical certainty that (1) the enema administered by the Health Center penetrated the rectal wall, which caused Lovell\u2019s fistula and (2) Lovell\u2019s incontinence resulted from the subsequent surgery to correct his fistula, which was caused by the enema administered by the Health Center.\nThe Health Center presented, in pertinent part, three experts in the fields of urology, colorectal surgery, and anatomic pathology who, respectively, opined to a reasonable degree of medical certainty as follows: (1) an inadvertent surgical accident during the prostatectomy caused a fistula between the bladder and rectum, which could have been concealed by a blood clot that was \u201cblown out of the way\u201d by the enema; (2) because bleeding did not occur when the Health Center administered the enema, the enema uncovered a preexisting fistula, which was caused by Lovell\u2019s prostatectomy; and (3) pathology slides showed that Lovell\u2019s fistula was caused by the removal of too much rectal tissue during his prostatectomy.\nLovell also presented expert testimony from an anatomic pathologist to rebut the testimony of the Health Center\u2019s retained pathologist. In particular, Lovell\u2019s pathologist opined that (1) the pathology slides from Lovell\u2019s prostatectomy contained bladder tissue rather than rectal tissue; (2) even if the pathology slides contained rectal tissue, such tissue (a) does not indicate a rectal perforation and (b) was removed from a different location than where Lovell\u2019s fistula occurred; and (3) the location of the fistula was clearly within range of the enema tip. Lovell\u2019s pathologist opined that the timing of events between the administration of the enema by the Health Center and the discovery of the fistula was \u201cfar more compelling as a cause and effect\u201d than the prostatectomy, which occurred five days earlier.\nC. The Pertinent Portion of Lovell\u2019s Closing Argument\nDuring Lovell\u2019s closing argument, his counsel stated, in pertinent part, the following:\n\u201cEvery two hours, every day, every month, every year, for [life] to go through what he described in order to urinate. To need bathroom accommodations from [the trial court] and other people everywhere he goes.\nWhat [Lovell] has gone through and will continue to go through because of [the Health Center\u2019s] admitted negligence is the exact opposite of a normal life.\u201d\nD. The Trial Court\u2019s Admonishment\nAfter Lovell\u2019s counsel completed his closing arguments, the trial court ordered a recess. Outside of the presence of the jury, the court admonished Lovell\u2019s counsel as follows:\n\u201c[THE COURT:] Counsel approach the bench a moment. There were no objections in the argument, but one thing [the court] noted, that [the court] just would caution you. You got [the court] involved in your argument, and [the court is] not supposed to be involved, when you indicated that [the court] had made special provisions for [Lovell],\nNow, [the court is] not saying that isn\u2019t true, but it\u2019s not evidence in front of the jury, and it may indicate some sympathy on [the court\u2019s] part. In other words, there was no objection, but it really bothered [the court], [The court] understand^] you were going to tell [the court] it\u2019s unintentional, but you see what [the court is] getting at. [The court has] no problem with an advocate trying to push as far as they can for their side of the case, but [the court] wasn\u2019t happy when [the court] was [mentioned] in [your closing] argument as [making accommodations for] your client.\n[The court is] going to *** instruct the [jury] *** that by no remark [the court has] made or any ruling on objections or anything else do[es the court] indicate any position one way or the other on this case.\n*** [D]o you see where [the court is] coming from?\n[LOVELL\u2019S COUNSEL:] I understand what you\u2019re saying.\u201d\n(Prior to the jury\u2019s deliberation, the court instructed the jury in accordance with its aforementioned remarks.)\nE. The Health Center\u2019s Motion for Mistrial\nAfter returning from the trial court\u2019s recess, and still outside the presence of the jury, the Health Center moved for a mistrial based, in part, on Lovell\u2019s comments to the jury in closing argument concerning the restroom accommodations the court provided for Lovell. After hearing counsel\u2019s response that his comments regarding the accommodations were not intentional, the court stated the following:\n\u201c[The court will] take *** your statement, because you\u2019re an officer of the [c]ourt, at face value, that there was no intent ***. *** Also, it\u2019s [the court\u2019s] recollection *** that the jury was told *** that your client would have to leave the courtroom from time to time, so they were aware of his problem ***. ***\nJust so the record is clear, for the [a]ppellate [c]ourt, it is a closer distance *** for your client to go through the door out of the courtroom through a hallway into [the court\u2019s] chambers to use the restroom rather than go out through the bar, *** in[to] the hallway, and *** go into [a] *** public restroom. That\u2019s the accommodation [the court believes] you were referring to. So from time to time, [the jury saw Lovell] leave. *** [The jury was] told ahead of time [that Lovell] was going to be leaving. ***\n[Mentioning that the court gave Lovell] an accommodation was inappropriate. [The court is] not saying it was intentional.\n[The court is] going to deny the motion for mistrial.\u201d\nF. The Jury\u2019s Determination\nFollowing the presentation of evidence and argument, the jury returned a verdict in Lovell\u2019s favor and awarded him approximately $2,378,258.\nThis appeal followed.\nII. ANALYSIS\nA. The Health Center\u2019s Claims Regarding Lovell\u2019s Opening Statement\nThe Health Center argues that it is entitled to a new trial because of Lovell\u2019s argumentative and prejudicial comments during his opening statement. Lovell responds that, with the exception of one opening-statement comment\u2014that the Health Center objected to and the trial court sustained\u2014the Health Center has forfeited its argument. We agree with Lovell.\nAn opening statement presents counsel with the opportunity to summarily outline to the trier of fact what counsel expects the evidence presented at trial will show. Hilgenberg v. Kazan, 305 Ill. App. 3d 197, 210, 711 N.E.2d 1160, 1169 (1999). To preserve a claim that a party is entitled to a new trial based on the other party\u2019s prejudicial remarks during opening statements, the appellant must raise a contemporaneous objection at trial to the complained-of remarks. Nassar v. County of Cook, 333 Ill. App. 3d 289, 304, 775 N.E.2d 154, 167 (2002); People v. Ward, 371 Ill. App. 3d 382, 419-20, 862 N.E.2d 1102, 1138 (2007).\nIn this case, the Health Center contends that Lovell\u2019s opening statement \u201ctheme\u201d that \u201cmedical malpractice and carelessness matters\u201d was an \u201cargument designed to inflame the jury from the outset.\u201d To buttress its contention in this regard, the Health Center, in its brief to this court, quotes the first 2 aforementioned paragraphs of Lovell\u2019s opening statement as well as 10 other statements from the record, which it claims announces and reiterates Lovell\u2019s prejudicial theme. However, the record shows that within the 27 pages of the record that comprise Lovell\u2019s opening statement, the Health Center did not object to any of the 11 statements it now brings to this court\u2019s attention.\nIndeed, the Health Center\u2019s first and only objection to Lovell\u2019s opening statement occurred after Lovell conveyed 80% of his opening statement to the jury and pertained not to his \u201cargumentative and prejudicial theme\u201d but, instead, to Lovell\u2019s argumentative characterization of what the Health Center\u2019s evidence would show, as follows:\n\u201c[LOVELL\u2019S COUNSEL:] I think the evidence is going to show that [the Health Center] will essentially blame [the urologists] who practice[d] in [the Health Center\u2019s] own hospital and cured [Lovell] of cancer, for causing injury to [Lovell] during surgery without [the urologists] knowing it.\nThen they will likely claim that their indefensible negligent act was a good thing and that it was simply a coincidence that the exact moment in time of the admitted negligence the enema diagnosed the [fistula]. It didn\u2019t create it. In other words, *** Lovell should thank [the Health Center] because its negligence was truly a blessing in disguise.\n[THE HEALTH CENTER\u2019S COUNSEL:] Your Honor, I have to object to the argument.\nTHE COURT: [The court is] going to sustain.\n[THE HEALTH CENTER\u2019S COUNSEL:] Thank you.\nTHE COURT: We\u2019re not at closing argument. We\u2019re at opening statement.\n[LOVELL\u2019S COUNSEL:] Okay, thank you.\u201d\nNonetheless, the Health Center further asserts that under the First District\u2019s decision in Spyrka v. County of Cook, 366 Ill. App. 3d 156, 851 N.E.2d 800 (2006), it was not required to make a contemporaneous objection to each of Lovell\u2019s argumentative and prejudicial comments to preserve this issue on appeal. However, Spyrka is distinguishable.\nIn Spyrka, 366 Ill. App. 3d at 165-66, 851 N.E.2d at 809, the First District concluded that the defendants did not have to renew their objection to the admission of a video animation at trial where the trial court had (1) decided to allow introduction of the video, (2) denied the defendants\u2019 motion for reconsideration and alternate relief, (3) denied two defense motions for a mistrial, and (4) invited defense counsel to appeal the court\u2019s determination. Given the record, the First District concluded that the \u201cdefendants were entitled to conclude that the [court] would continue to make the same ruling and were not required to repeat the objection.\u201d Spyrka, 366 Ill. App. 3d at 166, 851 N.E.2d at 809.\nHere, the Health Center\u2019s argument did not concern evidence introduced at trial but, rather, pertained to Lovell\u2019s opening statement. The record shows that the trial court admonished the jury on three separate occasions that it should not consider opening statements as evidence. In addition, unlike in Spyrka, the Health Center failed to make any objections to the comments it now contends were prejudicial. Thus, Spyrka does not offer the Health Center any support.\nThis court is mindful that in the course of representing their clients, trial attorneys may (1) make a tactical decision not to object to otherwise objectionable evidence or argument, which waives such issues on appeal, or (2) fail to recognize the objectionable nature of the evidence or argument, which results in procedural forfeiture. See Gallagher v. Lenart, 226 Ill. 2d 208, 229, 874 N.E.2d 43, 56 (2007) (forfeiture is the failure to make a timely assertion of a known right whereas waiver is the intentional relinquishment of a known right).\nIn this case, the Health Center may have made a tactical judgment not to object to the 11 comments it now claims constitute substantial prejudicial error that warrants a new trial. However, for our purposes, the reasons why the Health Center did not object do not matter. Under either scenario, the Health Center\u2019s failure to object\u2014 whether intentional or unintentional\u2014deprived the trial court of the opportunity to rule on any allegedly objectionable argument and, by extension, fails to preserve any such claims on appeal.\nB. The Health Center\u2019s Claims Regarding Lovell\u2019s Closing Argument\nThe Health Center next argues that the trial court abused its discretion by denying its motion for mistrial based on Lovell\u2019s improper closing argument. Specifically, the Health Center contends that Lovell\u2019s argument to the jury that the trial court had made special accommodations for Lovell (1) \u201cimpugned the integrity of the court and harmed our system of justice by implying favoritism\u201d and (2) was designed to \u201cfurther create passion and prejudice in the minds of the jury.\u201d We disagree.\n\u201cGenerally, a mistrial should be granted where an error of such gravity has occurred that it has infected the fundamental fairness of the trial, such that continuation of the proceeding would defeat the ends of justice.\u201d People v. Bishop, 218 Ill. 2d 232, 251, 843 N.E.2d 365, 376 (2006). A trial court\u2019s denial of a motion for a mistrial will not be disturbed absent a clear abuse of discretion. People v. Foster, 394 Ill. App. 3d 163, 166, 915 N.E.2d 448, 451 (2009). \u201c \u2018An abuse of discretion will be found only where the trial court\u2019s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.\u2019 \u201d People v. Sutherland, 223 Ill. 2d 187, 272-73, 860 N.E.2d 178, 233 (2006), quoting People v. Hall, 195 Ill. 2d 1, 20, 743 N.E.2d 126, 138 (2000).\nIn this case, we agree with the trial court\u2019s finding that Lovell\u2019s comment in closing argument concerning the court\u2019s accommodation was inappropriate. However, despite the Health Center\u2019s characterization of that comment, the record before us falls short of a matter that \u201cinfected the fundamental fairness of the trial.\u201d Bishop, 218 Ill. 2d at 251, 843 N.E.2d at 376. Instead, the records shows that (1) the jury was made aware at the start of trial that Lovell would have to leave the courtroom occasionally to use the restroom and (2) the jury undoubtedly saw Lovell leave the courtroom through a different door other than the court\u2019s designated exit.\nMoreover, even if Lovell did not mention the court\u2019s accommodations in his closing argument, the jury could have reasonably inferred that Lovell required such an accommodation based on his testimony on the first day of trial regarding (1) the unusual steps he had to take to relieve himself, (2) the possibility that he could have an accidental discharge, and (3) the precautions he was required to take in that regard. Therefore, we conclude that the trial court did not abuse its discretion by denying the Health Center\u2019s motion for a mistrial.\nC. The Health Center\u2019s Claim Regarding the Trial Court\u2019s Evidentiary Ruling\nThe Health Center also argues that the trial court abused its discretion by admitting evidence regarding its standard of care\u2014 namely, that the court improperly admitted evidence in the form of medical literature appended to its policies and procedures, which stated that giving an enema following a prostatectomy was contraindicated. In particular, the Health Center contends that although it had conceded it breached its standard of care by administering the enema to Lovell, the proximate cause of Lovell\u2019s fistula was his prostatectomy instead of the enema. Therefore, the Health Center asserts that its policy and procedures\u2014specifically, the reference materials stating that an enema following a prostatectomy was contraindicated\u2014were \u201cwholly irrelevant and not probative of any issue\u201d before the jury and \u201chighly prejudicial.\u201d We disagree.\n1. The Standard of Review\nGenerally, evidentiary rulings are within the sound discretion of the trial court and will not be reversed on review absent an abuse of discretion. People v. Johnson, 385 Ill. App. 3d 585, 596, 898 N.E.2d 658, 669 (2008). As we have previously stated, \u201c[a] trial court abuses its discretion only where the ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted by the trial court.\u201d People v. Purcell, 364 Ill. App. 3d 283, 293, 846 N.E.2d 203, 211 (2006).\n2. The Appended Medical Literature at Issue\nAs contained in the Health Center\u2019s \u201cAdministrative Policy and Procedures,\u201d the stated purpose of the \u201cClinical Nursing Skills Reference and Resources\u201d was to \u201cestablish and provide a standard reference for clinical nursing skill review and identify reference process.\u201d In particular, the policy statement mandated the use of a particular medical textbook pertaining to clinical skills and techniques, which the Health Center made available to its nursing units as a \u201cquick reference book.\u201d\nUnder the pertinent section of the appended medical literature pertaining to a nurse\u2019s assessment of whether to administer an enema, the second step required the nurse to \u201c[ajssess medical record for presence of increased intracranial pressure, glaucoma, or recent rectal or prostate surgery.\u201d The corresponding rationale for this second step was listed as \u201c[cjonditions contraindicate use of enemas.\u201d\n3. Lovell\u2019s Introduction of Evidence Appended to the Health Center\u2019s Policies and Procedures\nThe record reveals that at opening statements, the Health Center told the jury the following:\n\u201c[The Health Center] admit[s] *** that [Lovell] is incontinent, but to say that an enema caused his fistula or to say that an enema caused his incontinence, *** that\u2019s where [the Health Center] get[s] off the train.\nThis case has been pending for a couple of years. This took place five years ago, and the preparation for this very day, for years, [Lovell has] had the opportunity to come into the courtroom and bring you some scientific evidence that says that\u2019s the case. [Lovell] will be unable to do so. Not one medical journal article, not one textbook, not one internet site will ever say that in the history of the world, an enema caused a fistula. Because they don\u2019t. Surgery causes fistulas. We know this to be true. It\u2019s studied. It\u2019s recognized, published about. We have physical evidence to prove it. Enemas don\u2019t cause fistulas. Surgery causes fistulas.\u201d\nIn addition, the Health Center\u2019s medical expert in urology testified, in pertinent part, as follows:\n\u201c[THE HEALTH CENTER\u2019S COUNSEL:] Let\u2019s talk about another theory. That the enema caused [the fistula]. ***\n[UROLOGY EXPERT:] I for one, in my individual experience, have never heard of that. I looked for several sources of literature to explain that direct cause and relationship issue and could not find it, and with everything else that I know about the case, *** I can\u2019t fathom *** that\u2019s how it occurred.\n[THE HEALTH CENTER\u2019S COUNSEL:] You say you\u2019ve looked through the literature. Were you specifically looking for case reports similar to *** Lovell\u2019s?\n[UROLOGY EXPERT:] Yes.\n[THE HEALTH CENTER\u2019S COUNSEL:] Enemas are given, what? Regularly in hospitals[?]\n[UROLOGY EXPERT:] Correct.\n[THE HEALTH CENTER\u2019S COUNSEL:] Once in a while, as in this case, there might be somebody who gets an enema following a prostatectomy[?]\n[UROLOGY EXPERT:] Correct.\n[THE HEALTH CENTER\u2019S COUNSEL:] Even without prostatectomies, have you ever seen a case before in any of the literature suggesting that an enema caused a fistula?\n[UROLOGY EXPERT:] No.\u201d\nIn this case, the paramount issue before the court was causation\u2014that is, whether the Health Center\u2019s administration of the enema caused Lovell\u2019s fistula. As previously stated, the Health Center conceded that it breached its standard of care by administering the enema but argues that the proximate cause of Lovell\u2019s fistula was his prostatectomy, instead of the enema. To that end, Lovell was not only entitled to present relevant and probative evidence to generally rebut the Health Center\u2019s defense but also to specifically rebut its urologist\u2019s expert testimony that (1) enemas do not cause fistulas and (2) enemas are occasionally given to patients following a prostatectomy.\nHere, the Health Center\u2019s own policies and procedures mandated the use of a medical textbook as a nursing reference, which cautioned that the administration of an enema is contraindicated following a prostatectomy. Thus, contrary to the Health Center\u2019s contention, such evidence was relevant and probative and the jury was free to reasonably infer why enemas are contraindicated in such circumstances. See Cummings v. Jha, 394 Ill. App. 3d 439, 454, 915 N.E.2d 908, 922 (2009) (a plaintiff need not present unequivocal evidence of causation but, instead, can meet his burden through the introduction of circumstantial evidence from which a jury may infer connected facts that reasonably follow according to common experience). Therefore, we reject the Health Center\u2019s contention that the trial court abused its discretion by admitting evidence regarding literature appended to its policies and procedures.\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nPOPE, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE APPLETON,\nspecially concurring:\nI concur with the majority\u2019s decision but write separately to address both a specific argument made during oral arguments as well as to further comment on the problem created by Lovell\u2019s opening statement.\nAt oral argument, the Health Center\u2019s counsel encouraged this court to reverse based on our court\u2019s recent decision in Downey v. Dunnington, 384 Ill. App. 3d 350, 895 N.E.2d 271 (2008). The difficulty in resting the argument on that slender reed is that while the disposition criticized counsel\u2019s improper elicitation of irrelevant character evidence, we did not reverse the verdict in favor of the defendant on appeal.\nI agree with the majority that Lovell\u2019s counsel here abused the opportunity for opening statement. Had counsel made this argument in a law school class in trial advocacy, he would have received a failing grade. That defense counsel made a tactical decision to neither object to the improper argument nor move for a mistrial during Lovell\u2019s opening statement does not excuse the requirement to do so if the error is to be preserved for review.", "type": "concurrence", "author": "JUSTICE APPLETON," } ], "attorneys": [ "Karen L. Kendall (argued), of Heyl, Royster, Voelker & Allen, and Kevin M. Miller and Elizabeth E Larsen, both of Quinn, Johnston, Henderson, Pretorius & Cerulo, all of Peoria, for appellant.", "Michael W. Rathsack (argued), and Steven K. Jambois, Alexander M. Sukhman, and Ryan E. Yagoda, all of Kralovec, Jambois & Schwartz, all of Chicago, for appellee." ], "corrections": "", "head_matter": "CLINTON DEAN LOVELL, Plaintiff-Appellee, v. SARAH BUSH LINCOLN HEALTH CENTER, Defendant-Appellant.\nFourth District\nNo. 4\u201409\u20140249\nArgued December 16, 2009.\nOpinion filed January 12, 2010.\nKaren L. Kendall (argued), of Heyl, Royster, Voelker & Allen, and Kevin M. Miller and Elizabeth E Larsen, both of Quinn, Johnston, Henderson, Pretorius & Cerulo, all of Peoria, for appellant.\nMichael W. Rathsack (argued), and Steven K. Jambois, Alexander M. Sukhman, and Ryan E. Yagoda, all of Kralovec, Jambois & Schwartz, all of Chicago, for appellee." }, "file_name": "0890-01", "first_page_order": 906, "last_page_order": 918 }