{ "id": 4304774, "name": "DAWN AUTEN, f/k/a Dawn Barnett, Plaintiff-Appellee, v. CHRISTINE FRANKLIN, Defendant (Larry Nord et al., Defendants-Appellants)", "name_abbreviation": "Auten v. Franklin", "decision_date": "2010-10-06", "docket_number": "No. 4\u201409\u20140541", "first_page": "1130", "last_page": "1164", "citations": [ { "type": "official", "cite": "404 Ill. App. 3d 1130" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "651 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "622" } ], "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 925", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252027 ], "year": 1995, "pin_cites": [ { "page": "933-34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0925-01" ] }, { "cite": "382 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3324714 ], "year": 1978, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0050-01" ] }, { "cite": "738 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "213" } ], "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 932", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096640 ], "year": 2000, "pin_cites": [ { "page": "948" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0932-01" ] }, { "cite": "829 N.E.2d 378", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 828", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135693 ], "year": 2005, "pin_cites": [ { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0828-01" ] }, { "cite": "892 N.E.2d 1137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "1140" } ], "opinion_index": 0 }, { "cite": "384 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4279510 ], "year": 2008, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0172-01" ] }, { "cite": "246 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "272" } ], "opinion_index": 0 }, { "cite": "42 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848772 ], "year": 1969, "pin_cites": [ { "page": "196-97" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0193-01" ] }, { "cite": "485 N.E.2d 488", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 1053", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3641303 ], "year": 1985, "pin_cites": [ { "page": "1062-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/1053-01" ] }, { "cite": "846 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2006, "pin_cites": [ { "page": "211" }, { "page": "211" } ], "opinion_index": 0 }, { "cite": "364 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263306 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "293" }, { "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": "855 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2006, "pin_cites": [ { "page": "167" }, { "page": "167" }, { "page": "167" }, { "page": "167" } ], "opinion_index": 0 }, { "cite": "367 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265083 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "645" }, { "page": "645" }, { "page": "645" }, { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0641-01" ] }, { "cite": "803 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "208 Ill. 2d 259", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463034 ], "year": 2003, "pin_cites": [ { "page": "279-80" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0259-01" ] }, { "cite": "593 N.E.2d 522", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "525" }, { "page": "526" }, { "page": "526" }, { "page": "526" }, { "page": "526" } ], "opinion_index": 0 }, { "cite": "148 Ill. 2d 429", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283006 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "437-38" }, { "page": "438" }, { "page": "439" }, { "page": "439" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0429-01" ] }, { "cite": "641 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "435" }, { "page": "431" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783180 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "370" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0357-01" ] }, { "cite": "909 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "360" } ], "opinion_index": 0 }, { "cite": "391 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4285521 ], "year": 2009, "pin_cites": [ { "page": "802" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/391/0795-01" ] }, { "cite": "900 N.E.2d 1212", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "1214" }, { "page": "1218", "parenthetical": "finding IPI Civil (2006) No. 105.01 accurately states the law" } ], "opinion_index": 0 }, { "cite": "387 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4282934 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "403" }, { "page": "407-08" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/387/0401-01" ] }, { "cite": "854 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "666" } ], "opinion_index": 0 }, { "cite": "222 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602061 ], "year": 2006, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0147-01" ] }, { "cite": "897 N.E.2d 893", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "896" }, { "page": "902", "parenthetical": "finding IPI Civil (2006) No. 105.01 does not accurately state the law" } ], "opinion_index": 0 }, { "cite": "386 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4281076 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "179" }, { "page": "185-86" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/386/0176-01" ] }, { "cite": "170 N.E.2d 163", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "pin_cites": [ { "page": "170" } ], "opinion_index": 0 }, { "cite": "20 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2738128 ], "year": 1960, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0301-01" ] }, { "cite": "809 N.E.2d 156", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "348 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4023256 ], "year": 2004, "pin_cites": [ { "page": "773" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0767-01" ] }, { "cite": "724 N.E.2d 949", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "952" } ], "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415354 ], "year": 2000, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0542-01" ] }, { "cite": "563 N.E.2d 410", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "414", "parenthetical": "holding \"that an injured party does not waive the right to enforce a judgment against a jointly and severally liable tortfeasor by settling with another joint tortfeasor\"" } ], "opinion_index": 1 }, { "cite": "138 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5577212 ], "year": 1990, "pin_cites": [ { "page": "541", "parenthetical": "holding \"that an injured party does not waive the right to enforce a judgment against a jointly and severally liable tortfeasor by settling with another joint tortfeasor\"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/138/0533-01" ] }, { "cite": "641 N.E.2d 402", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "411" } ], "opinion_index": 1 }, { "cite": "161 Ill. 2d 267", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783184 ], "year": 1994, "pin_cites": [ { "page": "286" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/161/0267-01" ] }, { "cite": "775 N.E.2d 964", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "973" } ], "opinion_index": 1 }, { "cite": "201 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477049 ], "year": 2002, "pin_cites": [ { "page": "274" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/201/0260-01" ] }, { "cite": "412 N.E.2d 181", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "194", "parenthetical": "\"The jury was properly instructed on the crime of involuntary manslaughter, and we will assume that the jury followed the instructions that were given\"" } ], "opinion_index": 1 }, { "cite": "89 Ill. App. 3d 803", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5538619 ], "year": 1980, "pin_cites": [ { "page": "820", "parenthetical": "\"The jury was properly instructed on the crime of involuntary manslaughter, and we will assume that the jury followed the instructions that were given\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/89/0803-01" ] }, { "cite": "901 N.E.2d 927", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "936", "parenthetical": "the reviewing court will not reverse, even if the instruction was faulty, unless the instruction \"clearly misled the jury and resulted in prejudice to the appellant\"" } ], "opinion_index": 1 }, { "cite": "387 Ill. App. 3d 812", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4283430 ], "year": 2008, "pin_cites": [ { "page": "821", "parenthetical": "the reviewing court will not reverse, even if the instruction was faulty, unless the instruction \"clearly misled the jury and resulted in prejudice to the appellant\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/387/0812-01" ] }, { "cite": "897 N.E.2d 893", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "896", "parenthetical": "a trial court must use the IPI instruction unless it does not accurately state the law" } ], "opinion_index": 1 }, { "cite": "386 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4281076 ], "year": 2008, "pin_cites": [ { "page": "179" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/386/0176-01" ] } ], "analysis": { "cardinality": 1930, "char_count": 81398, "ocr_confidence": 0.782, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1449233140619395 }, "sha256": "9dd899774e7d0ec98466a3d7ea4a18ac78b0498be59098ddbdeb91361eca7346", "simhash": "1:adb02ad61dce0d32", "word_count": 13128 }, "last_updated": "2023-07-14T16:58:54.131587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DAWN AUTEN, f/k/a Dawn Barnett, Plaintiff-Appellee, v. CHRISTINE FRANKLIN, Defendant (Larry Nord et al., Defendants-Appellants)." ], "opinions": [ { "text": "JUSTICE POPE\ndelivered the opinion of the court:\nDefendants Dr. Larry Nord and Central Illinois Orthopedic Surgery, S.C. (medical defendants), appeal from a jury verdict in favor of plaintiff, Dawn Auten, resulting from injuries plaintiff received from an automobile accident with defendant Christine Franklin and the medical treatment given by the medical defendants. Plaintiffs injuries included a right forearm fracture and a dislocated right index finger. The medical defendants contend (1) the trial court erred in giving jury instructions failing to differentiate between the injuries caused by Franklin and those caused by the medical defendants, injecting insurance into the case, and confusing the jury on the consideration to be given expert witness testimony; (2) the court erred in limiting or denying evidence qualified radiologists were not able to diagnose plaintiffs dislocated finger prior to the medical defendants\u2019 failure to do so; and (3) errors occurred in both opening statement and closing argument denying the medical defendants a fair trial. Because the verdict form failed to differentiate between the injury caused solely by Franklin to plaintiff s forearm and the injury caused to the index finger for which both Franklin and the medical defendants are liable, we reverse.\nI. BACKGROUND\nOn December 11, 2003, a vehicle driven by Franklin collided with a vehicle driven by Timothy Auten in Springfield. Plaintiff was a passenger in Auten\u2019s vehicle. Plaintiff was injured and taken to the emergency department of Memorial Medical Center (Memorial) in Springfield where she was seen by emergency-room physician Dr. Ronald Pickett.\nDr. Pickett diagnosed a two-bone fracture of plaintiff\u2019s right forearm. Dr. Roger Haag, a clinical radiologist, was asked to read an X ray of the front and lateral views of the right forearm, verifying these fractures. He did so, finding plaintiff had fractured the mid-portion of the right radius and ulna. He saw no other fractures in the X rays of the forearm. A specific X ray of plaintiffs hand was not taken at Memorial.\nPlaintiff claimed she was in excruciating pain when her right arm was raised by holding on to her index finger in order to take the X rays. She reported she had braced for the impact of the automobile accident using her right hand.\nPlaintiff was also seen at Memorial by orthopedic surgeon Dr. Michael Watson and orthopedic resident Dr. Joseph Norris. Dr. Watson gave plaintiff the choice of having her right forearm fractures internally set by an orthopedic surgeon in Bloomington since she lived there. Plaintiff chose to do that and saw Dr. Larry Nord, a surgeon employed by Central Illinois Orthopedic Surgery, S.C. Dr. Nord scheduled surgery for December 13, 2003.\nOn January 15, 2005, plaintiff filed suit against Franklin, seeking to recover damages for injuries she suffered as a result of the automobile accident. On April 5, 2006, plaintiff filed an amended complaint, adding as defendants Dr. Pickett, Midwest Emergency Department Specialists, Ltd., Dr. Norris, Memorial Medical Center, Dr. Haag, Clinical Radiologists, S.C., Dr. Nord, and Central Illinois Orthopedic Surgery, S.C. Plaintiff alleged the newly added defendants failed to diagnose a dislocated index finger. When the case proceeded to trial on March 2, 2009, the remaining defendants were Franklin, Dr. Nord, and Central Illinois Orthopedic Surgery, S.C.\nDr. Nord performed an open reduction internal fixation on December 13, 2003, and advised plaintiff she may not get a return of her radial nerve sensory function. He did not notice anything unusual about plaintiff s index finger. Following her surgery, Dr. William Cooley, a board-certified radiologist, reviewed postoperative X-ray film of plaintiff s right forearm and right hand to determine if the surgery had resulted in properly setting plaintiffs forearm bones. He reported it did.\nFollowing the surgery, Dr. Nord saw plaintiff 13 times for follow-up care. He testified he palpated her hand, including her index finger, every time her cast was changed. Dr. Nord stated plaintiff had kind of chubby hands and swelling on top of that from the forearm fracture. It took six months for the fractures to heal, and she had swelling in her hand the entire time.\nDr. Nord testified he did not receive any specific complaint of pain in plaintiffs right index finger. Even after she started hand, wrist, and elbow motion exercises, plaintiff did not make any complaints of pain in regard to her right index finger. There are no notations in Dr. Nord\u2019s medical records in regard to plaintiff indicating she made any complaints of pain.\nPlaintiff insists she made complaints of hand and finger pain regularly to Dr. Nord and other employees of Central Illinois Orthopedic Surgery during the course of her treatment by them.\nOn June 14, 2004, Stephanie Roberts, a licensed physical therapist employed by Neuro Ortho Rehab Center, an outpatient physical therapy clinic, saw plaintiff for a physical-therapy initial evaluation. Plaintiff had been referred by Dr. Nord. Plaintiff complained of an ache in the right wrist and fingers. She stated she had no feeling in the right fingers and had throbbing pain when she lay down. She also complained of pain in the second metacarpal and finger and a bump at the second metacarpal (the index finger).\nRoberts palpated plaintiffs right index finger and discovered a \u201chard, bony-like protrusion *** at the distal first metacarpal.\u201d (Roberts acknowledged the injury was actually at the second metacarpal and she erroneously charted it as the \u201cfirst\u201d metacarpal.) Roberts wrote in plaintiffs medical chart the symptoms in regard to plaintiffs finger were the result of the automobile accident in December 2003. This information was related to her by plaintiff.\nPlaintiff saw Roberts again on June 21, 2004, and at that time complained of moderate tenderness as a result of palpation at the second metacarpal. She was having increased pain as her splint was hurting the first and second metacarpal region and she requested to see Dr. Nord as soon as possible.\nOn June 26, 2004, a sagittal view computerized tomography (CT) scan was performed of plaintiffs right index finger. This scan disclosed the dislocation of her right index finger. Dr. Nord had ordered this scan to look at the radius in her forearm three-dimensionally to determine why that fracture was not healing and to get a three-dimensional look at the metacarpal phalangeal joint around her right index finger to see what was the exact condition and alignment of the bone structure.\nDr. Nord was \u201cshocked\u201d to find a dislocation after the CT scan and then performed surgery on plaintiffs finger on June 29, 2004. A second procedure was performed on July 19, 2004, and then plaintiff was referred by Dr. Nord to a hand specialist, Dr. Frank Lee.\nOn July 22, 2004, Dr. Lee saw plaintiff. He noted plaintiff had dislocated the bones making up the knuckle of her right index finger. Dr. Lee had her continue with therapy. He continued to see plaintiff and eventually performed surgery on her finger October 19, 2004. Dr. Lee continued to prescribe vigorous therapy but eventually performed fusion surgery on January 6, 2005. He considered the fusion a success but only saw plaintiff for one follow-up visit. Dr. Lee testified if there is more than one injury, the pain of a dislocation may be overwhelmed by the pain of the other injury.\nOn August 3, 2006, plaintiff sought treatment from Dr. Mitchell Rotman, an orthopedic surgeon specializing in elbows, shoulders, and hands. Dr. Rotman operated on plaintiff and scraped out scar tissue and removed wires that were inserted at the time of the fusion in order for plaintiff to regain more range of motion. Plaintiff testified after this surgery she not only regained motion but the pain decreased also.\nDr. Rotman testified, as plaintiffs medical expert witness, it was a breach of the standard of care for a reasonably well-qualified orthopedic surgeon to miss the warning signs of the finger injury that were presented. The X rays taken and reviewed by Dr. Nord himself were diagnostic of plaintiffs right index finger dislocation. It was also Dr. Rotman\u2019s opinion, as it was all the other doctors who were asked, including Dr. Nord, a patient with a dislocated finger as plaintiff had would have been in extreme pain and would have been expected to complain about it to her physician. Rotman did concede plaintiffs finger dislocation was an unusual presentation but was adamant it could have been discovered earlier and, thus, would not have involved the degree of damage presented by torn and stretched ligaments and tendons encountered by the late diagnosis and treatment in this case.\nDr. Mark Cohen, an orthopedic surgeon specializing in the hand, wrist, forearm, and elbow, testified as the medical defendants\u2019 medical expert witness. Dr. Cohen reviewed the X-ray films taken at Memorial and did not find those films to be diagnostic of a dislocation of the index finger. Nor did he find anything diagnostic of a dislocation in the films taken after plaintiff\u2019s forearm surgery. Dr. Cohen also reviewed the films taken by Dr. Nord in his office on February 10, 2004, and March 9, 2004, postoperation and found those did not show anything diagnostic of a dislocation either. The problem with all of the X rays taken was they focused on the forearm fracture area and the finger was shown at an angle, making it difficult to see exactly what was going on with the finger.\nDr. Cohen did concede the X rays showed a \u201cpathology\u201d in regard to plaintiffs right index finger. He also acknowledged five separate complaints of either hand or finger pain by plaintiff in the first few days of her initial hospitalization.\nDr. Cooley, the Bloomington radiologist, testified he reviewed the December 13, 2003, X-ray film after plaintiffs initial surgery with Dr. Nord and reported it showed an open reduction of fractures of both the radius and ulna. He testified at trial the film also depicted a medial dislocation of the phalanx on the metacarpal joint of the right index finger. He also reviewed the results of the CT scan taken on June 26, 2004, and testified it showed the proximal phalanx of the same finger was displaced posteriorly on the metacarpal. Dr. Cooley stated this was the same dislocation fracture in both studies. Dr. Cooley then admitted the X-ray report he authored in regard to the December 13, 2003, X ray made no mention of the fracture dislocation of plaintiffs right index finger because he did not visualize the fracture dislocation at that time.\nAccording to Dr. Cooley, it is easier for a radiologist to find a fracture dislocation on an X ray once he is told of its existence. The first time he detected the fracture dislocation of plaintiffs finger was after he was told there was a lawsuit involving the finger. Dr. Cooley also stated the training a radiologist receives in interpreting X rays is greater than that of an orthopedic surgeon.\nThe jury returned a verdict in favor of plaintiff and against defendants Franklin, Dr. Nord, and Central Illinois Orthopedic Surgery in the total amount of $307,000. Plaintiff was awarded $107,000 for the reasonable expense of necessary medical care; $25,000 for disfigurement; $75,000 for pain and suffering, including future pain and suffering; and $100,000 for disability, including future disability. The jury found Franklin to be 75% at fault and the medical defendants to be 25% at fault.\nAfter receiving an extension of time to file, the medical defendants filed a posttrial motion on May 19, 2009. All of the issues raised on appeal were raised in that motion. On June 26, 2009, the trial court denied the motion. This appeal followed. Franklin did not appeal.\nII. ANALYSIS\nA. Jury Instructions\nThe medical defendants argue the trial court erred in giving jury instructions (1) which failed to differentiate between the injury caused solely by Franklin to plaintiffs forearm and the injury caused to the index finger for which both Franklin and the medical defendants are liable, (2) injected insurance into the case, and (3) confused the jury on the consideration to be given expert witness testimony.\nIt is within the discretion of the trial court to determine what jury instructions should be given, and a reviewing court will not disturb the decision of the trial court unless it abuses its discretion. Brady v. McNamara, 311 Ill. App. 3d 542, 546, 724 N.E.2d 949, 952 (2000). \u201c[T]he trial court has the discretion to determine if a particular jury instruction is applicable, supported by evidence in the record, and an accurate statement of the law.\u201d Luye v. Schopper, 348 Ill. App. 3d 767, 773, 809 N.E.2d 156, 161 (2004). The standard for deciding whether a trial court abused its discretion and the propriety of tendered instructions is \u201cwhether the jury was fairly, fully and comprehensively informed on the relevant principles, considering the instructions in their entirety.\u201d Saunders v. Schultz, 20 Ill. 2d 301, 314, 170 N.E.2d 163, 170 (1960); Matarese v. Buka, 386 Ill. App. 3d 176, 179, 897 N.E.2d 893, 896 (2008).\nA trial court is required to use an Illinois Pattern Jury Instruction when it is applicable to a civil case unless the court determines it does not accurately state the law. 177 Ill. 2d R. 239(a); York v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 222 Ill. 2d 147, 204, 854 N.E.2d 635, 666 (2006). The issue of whether a jury instruction is an accurate statement of the law is reviewed de novo. Studt v. Sherman Health Systems, 387 Ill. App. 3d 401, 403, 900 N.E.2d 1212, 1214 (2008).\n1. Failure To Differentiate Between the Injuries\nPlaintiff did not seek damages for her right forearm fracture against the medical defendants, only against Franklin. Damages were sought from all three for the injury to her right index finger. Yet the verdict form given did not require the jury to make a separate calculation for the damages attributed to plaintiff\u2019s right forearm fracture and her dislocated right index finger. The medical defendants contend this is error.\nPlaintiff and the medical defendants each offered a different verdict form. The medical defendants objected to the use of plaintiffs proffered instruction and submitted one of their own which, upon plaintiffs objection, was refused by the trial court. Plaintiffs instruction was given.\nPlaintiffs instruction No. 9 (Verdict Form A) was Illinois Pattern Jury Instructions, Civil, No. B45.03.A (Supp. 2008) (hereinafter IPI Civil (Supp. 2008) No. B45.03.A). It stated jurors were to find for plaintiff and against either Franklin or the medical defendants, or both. (A copy is appended at the end of this opinion.) Plaintiff\u2019s instruction No. 9 provided a blank for determining the total monetary amount of damages suffered by plaintiff as a proximate result of the occurrence. Then blanks were provided for the itemization of damages: medical expenses, pain and suffering, disability, and disfigurement. Finally, the jury was to assume 100% represented the total combined fault of all persons or entities whose fault proximately caused plaintiffs injuries, including any defendant found liable, and find the fault attributable to each. The jury was also informed if any defendant was found not liable to plaintiff, zero (0) should be entered as to the percentage for that defendant.\nThe medical defendants argue using plaintiffs instruction No. 9 was error. Although Franklin, as defendant driver, is responsible for all injuries arising as a result of the auto accident, the medical defendants are not responsible for any injury related solely to the auto accident and unrelated to the medical care provided. This would exclude any damages for treatment provided for plaintiffs right forearm fracture as plaintiff neither alleged nor proved any negligence in regard to that treatment.\nThus, the medical defendants offered their jury instruction No. 29A, which followed the same general format as IPI Civil (Supp. 2008) No. B45.03.A offered by plaintiff but separated the findings, requiring the jury to find liability and damages as to plaintiffs right forearm injury just as to defendant Franklin and as to her right index finger injury as to defendant Franklin and the medical defendants. (A copy is appended at the end of this opinion.) The medical defendants\u2019 instruction No. 29A included the itemization of damages found in plaintiffs instruction No. 9 but provided two separate itemizations, one for plaintiff\u2019s right forearm and one for her right index finger. This instruction was refused by the trial court after plaintiff objected to it.\nThe medical defendants argued plaintiff suffered two distinct injuries, one to her forearm and one to her index finger. Plaintiff basically conceded this point at oral argument, and her complaint only sought damages from Dr. Nord for the injury to her index finger. According to the medical defendants, the jury could find the medical defendants negligent for failure to diagnose plaintiffs dislocated finger, but they should not have been allowed to assess liability for the fractures to the right forearm caused by Franklin. No claim was made through testimony or other evidence against the medical defendants for treatment of the right forearm fracture; thus, no basis existed for asking the jury to award damages against them for those injuries. However, the verdict form offered by plaintiff did not separate the claims. Both plaintiff and Franklin objected to the medical defendants\u2019 proffered verdict form, saying it was confusing and the percentages of liability offered in plaintiffs proffered verdict form were sufficient. The trial court rejected defendants\u2019 instruction without giving a specific reason.\nAt oral argument, plaintiffs counsel argued a verdict form giving the jury the opportunity to assess separate damages for each injury would be too confusing and would require the jury to sort through the medical bills and attribute them accordingly. However, Franklin\u2019s counsel had no problem doing that. At trial, he argued the medical expenses attributable to the injuries were as follows: arm, $42,100; finger, $65,688; and overlapping arm and finger, $5,903. Indeed, plaintiffs own exhibit F, appended to her brief, also depicts a division of the medical bills according to the injury to the forearm, the injury to the finger, and the overlapping expenses. Consequently, we find it would not be impossible or overly confusing for the jury to be required to determine an amount of damages attributable solely to the forearm fracture, for which the medical defendants would have no liability whatsoever.\nThe medical defendants argue the use of plaintiffs instruction No. 9 under the facts of this case is contrary to Illinois law. We agree. It is a well-established principle in Illinois law, where a plaintiffs injuries are separable, defendants are not jointly and severally liable for the damages. Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 802, 909 N.E.2d 353, 360 (2009). In Patton v. Carbondale Clinic, S.C., 161 Ill. 2d 357, 370, 641 N.E.2d 427, 435 (1994), the defendants were not joint tortfeasors where the plaintiff suffered two distinct injuries: the first injury suffered in an automobile accident and the second suffered from the doctor\u2019s malpractice in treating her injuries. The injuries were found to be separate and distinct. Carbondale Clinic, 161 Ill. 2d at 374, 641 N.E.2d at 431. In Burke v. 12 Rothschild\u2019s Liquor Mart, Inc., 148 Ill. 2d 429, 437-38, 593 N.E.2d 522, 525 (1992), our supreme court held where a plaintiff\u2019s injury can be distinguished from a physician\u2019s aggravation of the injury, separate and distinct injuries occur and defendants cannot be held jointly liable. However, \u201cwhere defendants, albeit sharing no common purpose or duty, and failing to act in concert, nevertheless acted concurrently to produce an indivisible injury to the plaintiff,\u201d the defendants are joint tortfeasors. (Emphasis in original.) Burke, 148 Ill. 2d at 438, 593 N.E.2d at 526. In Burke, the plaintiff was injured by the first tortfeasor, and that injury was exacerbated and/or plaintiff received an additional injury from a second tortfeasor. Burke, 148 Ill. 2d at 439, 593 N.E.2d at 526. Either injury or both injuries could have caused plaintiffs permanent condition. Because the injury was indivisible, the defendants were joint tortfeasors. Burke, 148 Ill. 2d at 439, 593 N.E.2d at 526.\nPlaintiff states in her brief \u201c[h]ere, plaintiffs finger injury was a single, indivisible injury. The existence of a single, individual [sic] injury establishes that multiple defendants are jointly and severally liable.\u201d (Emphasis added.) The problem with plaintiffs second sentence is it does not end with the following phrase \u201cfor plaintiffs finger injury.\u201d In other words, because plaintiff suffered injuries which are indivisible as to her index finger, both Franklin and the medical defendants are liable for this injury. However, there was no dispute only Franklin is responsible for the fractured forearm, and the medical defendants could not be made to pay for damages resulting from the forearm injury.\nPlaintiff notes our supreme court, in Burke, adopted the test of jointness in section 433A of the Restatement (Second) of Torts. The court stated \u201c[t]he test of jointness is indivisibility of the injury.\u201d Burke, 148 Ill. 2d at 438, 593 N.E.2d at 526.\nRestatement (Second) of Torts \u00a7433A (1965) provides as follows:\n\u201c(1) Damages for harm are to be apportioned among two or more causes where\n(a) there are distinct harms, or\n(b) there is a reasonable basis for determining the contribution of each cause to a single harm.\u201d\nThe comments on subsection (1) above, related to \u201cdistinct harms,\u201d read as follows:\n\u201cDistinct harms. There are other results which, by their nature, are more capable of apportionment. If two defendants independently shoot the plaintiff at the same time, and one wounds him in the arm and the other in the leg, the ultimate result may be a badly damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as separate injuries, and as distinct wrongs. The mere coincidence in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in the apportionment of some elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other. It is possible to make a rough estimate which will fairly apportion such subsidiary elements of damages.\nIt should be noted that there are situations in which the earlier wrongdoer may be liable for the entire damage, while the later one will not. Thus an original tortfeasor may be liable not only for the harm which he has himself inflicted, but also for the additional damages resulting from the negligent treatment of the injury by a physician. *** The physician, on the other hand, has played no part in causing the original injury, and will be liable only for the additional harm caused by his own negligence in treatment.\u201d Restatement (Second) of Torts \u00a7433A, Comments b, c, at 435 (1965).\nSection 433A of the Restatement (Second) of Torts has been superseded by section 26 of the Restatement (Third) of Torts: Apportionment of Liability (Restatement (Third) of Torts: Apportionment of Liability \u00a726 (2000) (hereinafter Restatement (Third) of Torts)). While not yet formally adopted by our supreme court, we look to this section for whatever enlightenment it may provide.\nSection 26 provides as follows:\n\u201c(a) When damages for an injury can be divided by causation, the factfinder first divides them into their indivisible component parts and separately apportions liability for each indivisible component part ***.\n(b) Damages can be divided by causation when the evidence provides a reasonable basis for the factfinder to determine:\n(1) that any legally culpable conduct of a party or other relevant person to whom the factfinder assigns a percentage of responsibility was a legal cause of less than the entire damages for which the plaintiff seeks recovery and\n(2) the amount of damages separately caused by that conduct.\nOtherwise, the damages are indivisible and thus the injury is indivisible. Liability for an indivisible injury is apportioned under Topics 1 through 4.\u201d Restatement (Third) of Torts \u00a726 (2000).\nThe comments to the Restatement note most rules about dividing damages by causation were developed prior to the concept of comparative responsibility and most of these rules were developed in the context of indivisible injuries. Few courts have addressed the interaction between dividing damages by causation and apportioning liability by responsibility. Restatement (Third) of Torts \u00a726, Comment a, at 321 (2000). The comment further explains: \u201cDamages can be divided by causation when any person *** to whom the factfinder assigns a percentage of responsibility *** was a legal cause of less than the entire damages. *** Divisible damages are first divided by causation into indivisible parts, and then each indivisible part is apportioned by responsibility.\u201d Restatement (Third) of Torts \u00a726, Comment a, at 320 (2000). \u201cThe percentages of comparative responsibility for each component part add to 100 percent.\u201d (Emphasis added.) Restatement (Third) of Torts \u00a726, Comment c, at 321 (2000). The comments further note the underlying policies behind the division by causation first and then the subsequent apportionment of responsibility as follows: Thus, the two-step process, dividing injuries by causation and then apportioning responsibility to each component part, does not make a defendant liable for damages he did not cause, and it apportions liability among persons causing any component part according to that person\u2019s comparative share of responsibility. Restatement (Third) of Torts \u00a726, Comment d, at 323 (2000).\n\u201cNo party should be liable for harm it did not cause, and an injury caused by two or more persons should be apportioned according to their respective shares of comparative responsibility.\u201d Restatement (Third) of Torts \u00a726, Comment a, at 321 (2000).\nComment (d) to section 26 discusses an alternative method of asking the jury to find the plaintiffs aggregate damages and then assigning a single set of percentages to all persons who caused at least part of the damage, taking into account evidence of causation and comparative responsibility. Restatement (Third) of Torts \u00a726, Comment d, at 323 (2000). Comment j notes, however, a problem with a one-step process, i.e., it may result in a party being held liable for more damages than the party caused. Restatement (Third) of Torts \u00a726, Comment j, at 326-27 (2000). \u201cA party\u2019s comparative responsibility is distinct from the magnitude of the injury the party caused. When the factfinder is permitted to combine these two concepts to arrive at a single apportionment of liability, there is a risk that a party will be required to pay for damages it did not cause. Thus, the two-step process in [sjubsection (a) is used unless the court determines that it is administratively infeasible.\u201d Restatement (Third) of Torts \u00a726, Comment j, at 326-27 (2000).\nAs recognized in comment h, when a defendant is jointly and severally liable, he may be liable for more than his own percentage share of the damages. Restatement (Third) of Torts \u00a726, Comment h, at 324 (2000). However, if a defendant did not cause a portion of the damages, the defendant should not be liable therefor, regardless of joint and several liability.\nConsider the following hypothetical. A woman is in a car accident. Her legs are shattered. She also suffers a dislocated finger. After many surgeries and medical treatment that did not breach the standard of care, amputation of both legs is necessary. The total cost of her medical care is $950,000. The same orthopedic surgeon who treated her legs failed to diagnose the problem with her finger. The problem with the finger is later discovered and requires surgery to repair. The cost of the medical care for the treatment of the dislocated finger is $50,000. The woman files a two-count complaint. The first count is directed only against the at-fault driver for the injuries to her legs and finger. The second count is directed at the orthopedic surgeon for only the injury to her finger.\nA jury instruction like the one given to the jury in the instant case is used over the defendant physician\u2019s objection. The jury finds the driver and the physician 97.5% and 2.5% at fault, respectively, and awards plaintiff $2 million ($1 million medical and $1 million nonmedical) for her combined injuries. The total damages are not broken down between the injuries to her legs and the dislocated finger. In addition, the verdict does not show the physician bore no fault for the injuries to plaintiffs legs. The at-fault driver is judgment proof.\nBecause the jury\u2019s verdict failed to divide the damages between the injuries and attributed a percentage of fault to the physician for all of plaintiffs injuries (not just the finger injury), pursuant to section 2 \u2014 1117 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1117 (West 2008)), the physician would be responsible for paying the entire $1 million in medical expenses even though the physician\u2019s negligence had nothing to do with the $950,000 in medical expenses incurred for the treatment of the leg injuries. Section 2 \u2014 1117 states in part: \u201cin actions on account of bodily injury ***, based on negligence ***, all defendants found liable are jointly and severally liable for plaintiffs past and future medical and medically related expenses.\u201d 735 ILCS 5/2 \u2014 1117 (West 2008). Pursuant to the verdict form, the physician was found responsible for a percentage of all of the plaintiffs injuries, not just a percentage of the injury he played a part in causing. It would clearly be unfair to the physician to require him to pay medical expenses for an injury he had absolutely nothing to do with causing.\nWhile the legislature clearly intended a minimally responsible tortfeasor to be jointly and severally liable for all medical expenses for an injury he partially caused, we find the legislature clearly did not intend for a defendant to be responsible for medical expenses for an injury the plaintiff did not even allege he caused in any part. As a result, the jury instruction and verdict form given in this case are contrary to Illinois law because they have the effect of making an individual responsible for damages he had absolutely nothing to do with causing.\nThus, under section 433A of Restatement (Second) of Torts and under section 26 of the Restatement (Third) of Torts, where it is feasible for the jury to assess damages by causation, this should be done first and then apportionment of responsibility for each component part would be assigned. Even where the magnitude of each indivisible component cannot be determined with precision, this does not mean the damages are indivisible. All that is required is a reasonable basis for division of the damages. Restatement (Third) of Torts \u00a726, Comment f, at 323 (2000). As noted above, section 433A makes this same point. In this case, plaintiffs complaint provides the basis for dividing the damages. Plaintiff did not allege the medical defendants are in any way responsible for the injury to her forearm.\nConsequently, the medical defendants\u2019 verdict form contained in their jury instruction No. 29A accurately reflected Illinois law on this issue. While we know the jury apportioned relative responsibility 75/25 (Franklin/medical defendants), we have no way of knowing how it divided the damages between the forearm and the finger. The medical defendants have no responsibility for the forearm fracture, but, under the verdict form submitted by plaintiff, the medical defendants were assigned 25% of the responsibility for all damages, including damages for the forearm injuries.\nInjuries to two separate body parts, only one of which includes an alleged successive claim of medical malpractice, are two separate and distinct injuries requiring separate treatment in a jury instruction. The existence of a single, indivisible injury is necessary to establish multiple defendants are jointly and severally liable. See Board of Trustees of Community College District No. 508 v. Coopers & Lybrand, 208 Ill. 2d 259, 279-80, 803 N.E.2d 460, 472 (2003). Franklin and the medical defendants are not jointly and severally liable for plaintiffs injuries to her right forearm.\nAs the medical defendants are not liable for any damages in relation to plaintiffs right forearm, a separate itemization as to the damages resulting from that injury is necessary in order to assess the amount of Franklin\u2019s sole liability for them. Then, a separate itemization as to the damages resulting from the injury to plaintiffs right index finger is necessary, which, in addition, assesses the relative percentage of responsibility attributable to Franklin and the medical defendants. This is exactly what the medical defendants tendered in their instruction No. 29A.\nPlaintiff argues in addition to giving the jury IPI Civil (Supp. 2008) No. B45.03.A, the trial court instructed it with a modified version of Illinois Pattern Jury Instructions, Civil, No. 20.01 (2006) (hereinafter IPI Civil (2006) No. 20.01 (modified)), which included the following paragraphs as given:\n\u201cThe plaintiff claims that she was injured and sustained damage, and that the defendant, Christine Franklin, was negligent in one or more of the following respects:\n* * *\nThe plaintiff also claims that she suffered injury to her right index finger and sustained damage, and that defendant, Larry Nord, was professionally negligent in one or more of the following respects ***.\u201d\nThe jury was instructed that the medical defendants were alleged to be professionally negligent for the injury to plaintiffs finger, and no mention was made of the forearm injury with respect to Dr. Nord. The jury was also instructed Franklin should be held accountable for any and all injuries from the accident. However, these instructions do not cure the harm caused by the verdict form given to the jury. Without the separate itemization on the verdict form tendered by the medical defendants, there was no way provided for the jury to hold the medical defendants accountable for only the injuries they may have caused to plaintiffs index finger.\nWhere a pattern jury instruction accurately reflects Illinois law, the trial court is required to use it. 177 Ill. 2d R. 239(a). Here, the court was not required to use IPI Civil (Supp. 2008) No. B45.03.A because it does not accurately reflect the law under the circumstances of this case. Indeed, the comments to the jury instruction state: \u201cThis computational verdict form is to be used in cases involving a single plaintiff and more than one entity which could or might have caused plaintiffs injury or damage ***.\u201d IPI Civil (Supp. 2008) No. B45.03.A, Committee Comment, at 38-39. Here it was undisputed the medical defendants did not cause any of the damage related to the forearm injury. The comment to IPI Civil (Supp. 2008) No. B45.03.A further states: \u201cBecause of the absence of case law on various issues, the committee does not yet have sufficient guidance from the courts to draw instructions which would expressly accommodate every situation.\u201d IPI Civil (Supp. 2008) No. B45.03.A, Committee Comment, at 41. Because the jury was not given the opportunity to divide the damages between the forearm injury and index finger injury, the trial court abused its discretion in giving plaintiffs instruction No. 9 and refusing the medical defendants\u2019 instruction No. 29A. The medical defendants are entitled to a new trial.\nThe dissent contends the attribution of fault to the medical defendants in the amount of 25% comports with the evidence. Even if this is a fair allocation of responsibility, the dissent fails to account for the impact joint-and-several-liability principles have on Dr. Nord. Our earlier hypothetical demonstrates the inherently unfair nature of assigning a single set of percentages to all persons who caused part of the damages where the injuries are divisible, there are multiple defendants, and one or more defendants are clearly not responsible for some of the injuries.\nIt is absolutely clear the $307,000 award by the jury included the damages to the forearm. Since the jury attributed 25% of the fault to the medical defendants (and not less than 25%), they are jointly and severally liable to the plaintiff for all of the damages. 735 ILCS 5/2\u2014 1117 (West 2008). Thus, rather than exposure for the $76,750 the dissent contends comports with the damage to the index finger, the medical defendants share joint and several responsibility for the entire judgment, which includes damages awarded for the forearm injury.\nContrary to what the dissent states, the issue is not that Dr. Nord may be responsible for more than his assessed percentage of fault, but rather how he can be responsible in any percentage or amount for an injury he did not cause. It is cold comfort that Dr. Nord now can assume the burden of trying to collect from Franklin that which he should never have been liable for in the first place. Because plaintiff alleged only Franklin was responsible for the forearm injury, it should be plaintiffs burden to collect damages for that injury from Franklin.\nHowever, plaintiffs counsel stated during oral argument plaintiff settled with Franklin for her insurance policy limits, gave her a release, and was seeking the remainder of the judgment from Dr. Nord. The record does not reflect the amount of Franklin\u2019s policy limits. If her policy limits were only $100,000, plaintiff could seek the remainder in damages from Dr. Nord pursuant to joint and several liability. In this case, as a result of the verdict form given to the jury, neither the parties, the trial court, nor this court has any way of knowing whether this verdict will result in Dr. Nord paying for damages for an injury plaintiff did not allege he caused in any way. Since the medical defendants ought not have any liability imposed or pay any damages for the forearm injury, their tendered instruction should have been given to the jury.\nBecause we are granting a new trial to the medical defendants, we offer some guidance on the remaining issues raised by those defendants in the event they should arise in a new trial.\n2. Injection of Insurance Into the Case\nThe medical defendants argue the issue of insurance coverage was erroneously injected into the trial via a jury instruction when there was no mention of insurance throughout the trial. They had filed a motion in limine prior to trial to prohibit any reference to insurance. The motion was granted and no party violated it.\nPlaintiff offered her instruction No. 1, Illinois Pattern Jury Instructions, Civil, No. 3.03 (Supp. 2008) (hereinafter IPI Civil (Supp. 2008) No. 3.03), which states:\n\u201cWhether a party is insured or not insured has no bearing on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.\nIf you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict, the court will make whatever adjustments are necessary in this regard.\u201d\nThe instruction was given over objections from both the medical defendants and Franklin.\nPlaintiff argued testimony in the trial indicated all of plaintiffs medical expenses, except for less than $1,000, had been paid. The trial court initially reserved ruling on the instruction when first proffered by plaintiff. The medical defendants argued insurance was not at issue and the instruction, while published by the Illinois Supreme Court Committee on Pattern Jury Instructions in Civil Cases (Committee), had yet to be approved by the supreme court. The court later allowed the instruction without any further argument from the parties and did not give any reason for allowing the instruction.\nIPI Civil (Supp. 2008) No. 3.03 was revised by the Committee in October 2007. The revision replaced two prior instructions, Illinois Pattern Jury Instructions, Civil, No. 3.03 (2006) (hereinafter IPI Civil (2006) No. 3.03) and Illinois Pattern Jury Instructions, Civil, No. 30.22 (2006) (hereinafter IPI Civil (2006) No. 30.22). The former IPI Civil (2006) No. 3.03 is the same as the first paragraph of the new IPI Civil (Supp. 2008) No. 3.03 with the addition of the words \u201cor not insured\u201d in the first line. The second paragraph is the same as the former IPI Civil (2006) No. 30.22, which stated the old collateral-source rule. The Notes on Use to the former IPI Civil (2006) No. 3.03 stated the instruction should \u201conly be given at the request of the party whose liability insurance coverage has been disclosed or if the jury inquiries] about liability insurance during deliberations.\u201d\nThe Notes on Use to IPI Civil (Supp. 2008) No. 3.03 state: \u201cThe Committee believes that this instruction should be given in all cases where insurance could play a role in the decision of the jury. With the wide prevalence of liability insurance, medical insurance[,] or government benefits such as Medicaid or Medicare, many jurors question the role of insurance in contested accident, medical negligence[,] or other cases.\u201d\nThe medical defendants argue a jury instruction is approved or rejected for use only after it has been judicially questioned and considered (see Lange v. Freund, 367 Ill. App. 3d 641, 645, 855 N.E.2d 162, 167 (2006)) and the propriety of a trial court\u2019s determination is not conclusively determined by the recommendations and comments of the Committee. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167. IPI Civil (Supp. 2008) No. 3.03 has not been judicially reviewed. However, the Lange case is inapposite to the situation here as the trial court in Lange injected its own instruction into the proceedings where the committee comments recommended against giving such an instruction. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167. Even under such a circumstance, the reviewing court in Lange approved the giving of the court\u2019s instruction because it was appropriate in light of the closing argument made by plaintiffs counsel in that case. Lange, 367 Ill. App. 3d at 645, 855 N.E.2d at 167. Further, we note if a trial court never gives a particular jury instruction because it has never been \u201cjudicially reviewed,\u201d as defendants suggest the law to be, there will never be an opportunity to \u201cjudicially review\u201d that particular instruction. The medical defendants\u2019 contention that an instruction promulgated by the IPI committee is not effective until approved by the supreme court is contrary to Supreme Court Rule 239(a). As noted above, a trial court is required to use an IPI instruction unless the court determines it does not accurately reflect the law. See 177 Ill. 2d R. 239(a).\nAlthough the word \u201cinsurance\u201d was not used during the trial here, testimony indicating the vast majority of plaintiffs sizable medical bills had been paid, while the evidence also showed she and her husband are of modest means, would lead to the inference insurance of some sort was used to pay those bills. While no mention or inference was made of the existence of insurance covering the medical defendants for their liability, the medical defendants were not unduly prejudiced as the wording of former IPI Civil (2006) No. 3.03 has been retained instructing the jury it does not matter in its deliberations whether a party was insured. No abuse of discretion in the giving of IPI Civil (Supp. 2008) No. 3.03 has been shown by the medical defendants, as the instruction accurately reflects Illinois law.\n3. Conflicting Instructions in Regard to Consideration of Expert Testimony\nPlaintiff offered her instruction No. 3, Illinois Pattern Jury Instructions, Civil, No. 3.08 (Supp. 2008) (hereinafter IPI Civil (Supp. 2008) No. 3.08), which states:\n\u201cYou have heard a witness give opinions about matters requiring special knowledge or skill. You should judge [his] testimony in the same way [that] you judge *** testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness\u2019s qualifications, and all of the other evidence in the case.\u201d\nThe trial court gave this instruction over the objection of the medical defendants. It is a new instruction, like IPI Civil (Supp. 2008) No. 3.03.\nIPI Civil (Supp. 2008) No. 3.08 was given in addition to the medical defendants\u2019 instruction No. 25, Illinois Pattern Jury Instructions, Civil, No. 105.02 (2005) (hereinafter IPI Civil (2005) No. 105.02), to which there was no objection. (While the parties refer to Illinois Pattern Jury Instructions, Civil, No. 105.01 (2006) (hereinafter IPI Civil (2006) No. 105.01) in their briefs, it appears IPI Civil (2005) No. 105.02, which was withdrawn in 2006, was actually given at trial without objection by any party.) The medical defendants\u2019 instruction No. 25 states:\n\u201cA physician who holds himself out as a specialist and provides service in this specialty must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified orthopedic surgeon under circumstances similar to those shown by the evidence. The failure to do so is professional negligence. The only way in which you may decide whether a defendant possessed and applied the knowledge and used the skill and care which the law required from him is from expert testimony presented in the trial. You must not attempt to determine this question from any personal knowledge that you have.\u201d\nThis instruction in regard to professional negligence tells the jurors, in order to determine the standard of care, they must rely on the opinion testimony of qualified witnesses and evidence of professional standards and the jurors must not attempt to determine the question from any personal knowledge they may have.\nThe medical defendants argued, both before the trial court and here, the two jury instructions taken together would result in the jury ignoring the testimony of expert witnesses, as IPI Civil (Supp. 2008) No. 3.08 allows them to do, instead of using only the testimony of expert witnesses to determine the professional standard of care appropriate in these circumstances. Jurors are not permitted to determine on their own the standard of care or whether the defendant has breached it. No case has suggested it is proper for jurors to decide issues of medical negligence based on their layperson\u2019s perspective, except in circumstances of gross negligence. The medical defendants argue, at a minimum, the giving of these two instructions together is confusing to the jury. At worst, it has the potential to allow jurors, rather than medical experts, to set the standard of care.\nWe disagree. IPI Civil (Supp. 2008) No. 3.08 applies to the weight to be given expert testimony on any topic. IPI Civil (2005) No. 105.02 (now incorporated into IPI Civil (2006) No. 105.01) is limited to the determination of the \u201cstandard of care\u201d for health-care defendants. The two jury instructions do not conflict. Taken together, the jury was instructed in IPI Civil (2005) No. 105.02 it must rely on expert witness testimony to determine the applicable standard of care for the medical defendants, while IPI Civil (Supp. 2008) No. 3.08 told the jury it did not need to accept all expert opinions. The Notes on Use to IPI Civil (Supp. 2008) 3.08 state it is to be used in conjunction with IPI Civil (2006) No. 105.01 (dealing generally with professional-negligence cases, replacing IPI Civil (2005) No. 105.02, which has been withdrawn). Thus, if the jury determined there were not any believable expert opinions supporting a standard-of-care determination, plaintiff would not have proved her case and the jury would so find. The instructions are neither incompatible nor contradictory. See also Sherman Health Systems, 387 Ill. App. 3d at 407-08, 900 N.E.2d at 1218 (finding IPI Civil (2006) No. 105.01 accurately states the law). But cf. Buka, 386 Ill. App. 3d at 185-86, 897 N.E.2d at 902 (finding IPI Civil (2006) No. 105.01 does not accurately state the law).\nB. Evidence Qualified Radiologists Did Not Diagnose Plaintiffs Dislocated Finger\nPlaintiff was first seen at Memorial where X rays were taken. Dr. Haag, a clinical radiologist, read those X rays. In his report, he did not identify any dislocation of plaintiffs finger. Dr. Haag was a defendant in this case but was dismissed right before the start of the trial.\nPlaintiff was again X-rayed following surgery in Bloomington. Dr. Cooley, a board-certified radiologist, reviewed the X rays and did not detect any dislocation of her finger. Both Dr. Haag\u2019s and Dr. Cooley\u2019s reports were part of plaintiffs medical records admitted into evidence by agreement. The medical defendants contend if either Dr. Haag or Dr. Cooley had identified the dislocation, it would have been treated by them in a timely manner. A significant part of the medical defendants\u2019 defense was the unusual presentation of plaintiff\u2019s dislocated finger and, thus, the difficulty in detecting the dislocated finger in the X rays. They argue radiologists are even more qualified to read X rays than orthopedic surgeons and, therefore, the fact neither Dr. Haag nor Dr. Cooley detected the finger dislocation in the X rays was highly relevant.\nThe trial court refused to allow reference to Dr. Haag\u2019s X-ray report in the opening statement of the medical defendants; refused to allow them to cross-examine Dr. Rotman using Dr. Haag\u2019s and Dr. Cooley\u2019s X-ray reports; and excluded some of Dr. Cooley\u2019s testimony. The medical defendants argue, taken together, these rulings deprived them of a fair trial. They contend the X-ray reports are part of plaintiffs medical history and cannot be properly excluded.\nThey argue, further, Dr. Cooley testified at trial that the dislocation of plaintiffs finger was visible on the same X rays he looked at in the course of plaintiff\u2019s treatment but failed to visualize initially. Plaintiff also presented testimony from Dr. Rotman the dislocation was visible on the X rays taken in early 2004 at Dr. Nord\u2019s office. The medical defendants argue the court kept from the jury facts contained in the medical records that showed Drs. Haag and Cooley did not identify the dislocation on those same X rays.\nThus, the medical defendants argue the trial court\u2019s rulings eliminating the mention of Dr. Haag at trial and severely limiting Dr. Cooley\u2019s testimony denied them the opportunity to fairly present their theory of the case and were prejudicial error.\n\u201c \u2018[Ejvidentiary rulings are within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.\u2019 \u201d People v. Johnson, 385 Ill. App. 3d 585, 596, 898 N.E.2d 658, 669 (2008), quoting People v. Purcell, 364 Ill. App. 3d 283, 293, 846 N.E.2d 203, 211 (2006). Abuse of discretion is found only where the trial court\u2019s rulings are arbitrary, fanciful or unreasonable, or where no reasonable person would take the view adopted by the court. Purcell, 364 Ill. App. 3d at 293, 846 N.E.2d at 211.\nWe note, first, the medical defendants are incorrect in stating no evidence was before the jury in regard to Dr. Cooley missing the diagnosis of the dislocated finger. Dr. Cooley admitted in his testimony the X-ray report he authored in regard to the December 13, 2003, X ray made no mention of the fracture dislocation of plaintiff\u2019s right index finger because he did not visualize the fracture dislocation at that time. He also stated the training a radiologist receives in interpreting X rays is greater than that of an orthopedic surgeon, which supports the medical defendants\u2019 theory of the case. In fact, the trial court cited this when the medical defendants wanted to use Dr. Haag\u2019s findings, concluding it would be duplicative and they could argue their defense theory based on Dr. Cooley\u2019s testimony.\nThe problem with the defense theory, however, which makes the missing reports of finger dislocation by the radiologists of little relevancy, is the fact the radiologists were not asked to look for a dislocation but to confirm the right forearm fracture. Dr. Cooley testified it was much easier for radiologists to spot things on film when they were looking for them. Additionally, neither radiologist saw plaintiff in person, and Dr. Nord, rather than rely on a radiologist\u2019s report, read the X rays himself. In addition, what defendants really sought to do was argue, \u201cIf the radiologists didn\u2019t see it, then the orthopedist was not negligent for missing it.\u201d In essence, defendants wanted to argue defendants met the standard of care because two radiologists did not report the dislocation. However, no professional opinion testimony was offered to support this conclusion. As noted above, the jury was required to rely on expert testimony to determine the standard of care.\nThe medical defendants were allowed to argue the presentation of plaintiffs dislocation was unusual and, thus, difficult to see on the X rays, and, in fact, it was missed by a radiologist before Dr. Nord saw her. However, Dr. Nord treated plaintiff extensively over a period of several months. Evidence showed at least 13 office visits between plaintiff and Dr. Nord. The radiologists may have missed the dislocation on the X rays, but Dr. Nord was presented with a patient who had a badly swollen hand and testified she reported pain in her hand and fingers with every office visit. Dr. Nord was also able to palpate plaintiffs hand on each visit. Although Dr. Nord denies the reports of pain and there is no record of them in his office notes, Dr. Nord was presented with many more opportunities and reasons to review the X-ray film, looking for injuries besides the forearm fracture, than were the radiologists. Thus, comparing the radiologists\u2019 reports that missed the finger dislocation with the opportunities Dr. Nord had to diagnose the dislocation is similar to a comparison of apples and oranges, making the radiology reports, for the most part, irrelevant. (This would be similar to Franklin offering testimony that a professional race-car driver also failed to yield at the same intersection where this collision occurred. That someone with arguably greater skill was also negligent is not a legitimate defense.) Further, Dr. Nord did not rely on the radiologist\u2019s report prior to performing the initial surgery. He read the X rays taken in Springfield himself, as he does with all of his orthopedic patients.\nDr. Cooley\u2019s testimony was presented at trial via an evidence deposition. The excluded portion of his testimony pertained to the standard of care for a well-qualified radiologist and was not relevant to this case.\nThe medical defendants were not kept from arguing their defense to the jury, and only irrelevant evidence was kept from the jury by the trial court. We find no abuse of discretion.\nC. Errors in Opening Statement and Closing Arguments\n1. Mention of Plaintiff\u2019s Miscarriage in Opening Statement\nAlthough plaintiff incurred a miscarriage after the automobile accident, no recovery was sought for it. Nonetheless, during opening statement, plaintiffs counsel told the jury plaintiff had a miscarriage after the accident. The medical defendants contend this was an attempt to create sympathy and prejudice in the minds of the jurors.\nObjection was made by Franklin\u2019s counsel but not counsel for the medical defendants. The objection was sustained and the medical defendants made a motion in limine to bar further mention of the miscarriage. The motion was granted and the parties abided by the ruling.\nBecause no objection was made by the medical defendants nor did they join in or adopt Franklin\u2019s objection, the issue could be considered forfeited. See Brown v. Timpte Inc., 137 Ill. App. 3d 1053, 1062-63, 485 N.E.2d 488, 494 (1985). However, as this case is being reversed and remanded, we will consider this issue.\nAn opening statement is intended to inform jurors of the nature of the action and to provide an outline of what counsel expects admissible evidence at trial to show so the jurors can better understand testimony they will hear during trial, but no statement may be made in opening which counsel does not intend to prove. Gillson v. Gulf, Mobile & Ohio R.R. Co., 42 Ill. 2d 193, 196-97, 246 N.E.2d 269, 272 (1969). Statements made by counsel in opening statement are improper if they are not in good faith and are prejudicial. Surestaff, Inc. v. Open Kitchens, Inc., 384 Ill. App. 3d 172, 174, 892 N.E.2d 1137, 1140 (2008).\nPlaintiff argues the comments of counsel were factually accurate as the Memorial records reflect plaintiff was pregnant. Further, Dr. Nord was expected to introduce the testimony of Dr. Pickett by means of video evidence deposition. His testimony at the deposition included this question and answer:\n\u201cQ. Okay. What was the next thing you did?\nA. Well, seeing the patient\u2019s complaint, apparently[ \u2014 Jit\u2019s patient had a history that she is five weeks pregnant and I ordered a pregnancy test and a CBC and probably simultaneously with that obtained consultation from orthopedic service.\u201d\nAfter the medical defendants\u2019 motion in limine, this testimony was stricken from the deposition. But plaintiff argues she had no way of knowing this at the time her counsel made his opening statement.\nAs plaintiff never sought recovery of damages as a result of her miscarriage, it is wholly irrelevant and prejudiced the medical defendants. Plaintiffs counsel had no reason to tell the jury about it in opening statement. It was simply a subtle attempt to appeal to the emotions of the jury, which constitutes error. See First National Bank of La Grange v. Glen Oaks Hospital & Medical Center, 357 Ill. App. 3d 828, 833, 829 N.E.2d 378, 385 (2005).\nEven without the existence of a motion in limine, comments concerning plaintiff\u2019s miscarriage have no place in statements by counsel.\n2. Plaintiff\u2019s Counsel Stated During Closing Argument Plaintiff Did Not Have the Burden of Separating Damages for Arm and Finger\nDuring closing argument, plaintiff\u2019s counsel quoted the jury instruction defining \u201cproximate cause\u201d and then went into the complained-of argument:\n\u201cWhen I use the expression, quote, \u2018proximate cause,\u2019 unquote, I mean any cause which in the natural and ordinary course of events produced the [p]laintiff s injury. It need not be the only cause, nor the last, nor the nearest cause. It is sufficient if it concurs with some other cause acting at the same time which in combination with it causes the injury.\nIn other words, [plaintiff] does not have the obligation to try to parse her injury. She does not have the obligation, the law does not place a burden on her, to demonstrate which of these injuries is due exclusively to a motor vehicle accident, how much of it is due to Dr. Nord\u2019s negligence. The [pjlaintiff does not have that burden, because proximate cause is defined, and both of these [defendants contributed and proximately caused the injuries that we now have.\u201d\nThe medical defendants objected to this argument as a misstatement of the law, implying plaintiff did not have the burden to show proximate cause but defendants had that burden. The objection was sustained.\nPlaintiffs counsel then continued his argument:\n\u201cYeah, I didn\u2019t say we don\u2019t have the burden to show what proximate cause is, what I said was [p]laintiff doesn\u2019t have the burden to separate the injuries out and to separate the medical bills out. That\u2019s what I am saying.\u201d\nThe medical defendants objected again, arguing plaintiff did have the burden to separate her medical bills for each injury. The objection was sustained.\nThe medical defendants argue the law is clear, even if plaintiff demonstrated they had breached the standard of care with respect to a late diagnosis of the dislocated finger, they could not be held responsible for injuries resulting from plaintiffs arm fracture.\nThe purpose of closing argument is to draw reasonable inferences from the evidence and assist the jury in arriving at a verdict based on the law and the evidence. Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 948, 738 N.E.2d 199, 213 (2000). The medical defendants argue an appeals court has the discretion to grant a new trial based on improper closing argument. See Regan v. Vizza, 65 Ill. App. 3d 50, 54, 382 N.E.2d 409, 412 (1978). However, where the trial court sustains an objection to improper argument by counsel, any error is considered cured and, if the trial was fair as a whole and the evidence sufficient to support the verdict, the judgment will not be reversed on appeal. See Lecroy v. Miller, 272 Ill. App. 3d 925, 933-34, 651 N.E.2d 617, 622 (1995).\nFirst, we note plaintiff did not \u201crepeatedly\u201d argue to the jury she did not have the burden of separating her damages as argued by the medical defendants. However, as noted in our discussion concerning the erroneous verdict form used in this trial, plaintiff did have the burden to separate her damages between her forearm and her index finger. Thus, her counsel\u2019s argument was objectionable and the trial court was correct to sustain the medical defendants\u2019 objection to it (even though it erroneously refused the medical defendants\u2019 proffered jury-instruction verdict form).\n3. Franklin\u2019s Counsel Questioned Dr. Nord Operating on Plaintiff\u2019s Hand\nCounsel for Franklin argued in closing argument:\n\u201cAnother problem I have is you know, this thing goes on for six months, and the physical therapist does diagnose it by palpation the first time she sees the patient. What does Dr. Nord do? He operates on the finger. He is not a hand surgeon. Why does he operate on that hand and then later send her to the expert, Dr. Lee?\u201d\nCounsel for the medical defendants moved to strike this argument as not relevant. Franklin\u2019s counsel contended this was not argument but only a statement. The trial court stated it was an argument but overruled the objection.\nFranklin\u2019s counsel then stated:\n\u201cAs I said, there\u2019s a lot of issues and a lot of speculation that we don\u2019t need to get into, I\u2019m just pointing out the facts.\u201d\nThe medical defendants contend Franklin\u2019s counsel knew this argument was objectionable. Plaintiffs counsel attempted to question Dr. Nord during the trial about why he performed the first hand surgery instead of sending plaintiff to a specialist immediately. The trial court sustained the medical defendants\u2019 objection. Plaintiff\u2019s counsel argued at that time the question went to the credibility of Dr. Nord because medical-malpractice defendants often tried to correct the problem without anyone else ever knowing about it. The medical defendants argued no expert testified anything was wrong with Dr. Nord\u2019s surgery on plaintiffs hand nor were any allegations made to that effect. In fact, Dr. Rotman, plaintiffs expert, stated he had no criticisms of Dr. Nord\u2019s surgeries. He did not state the opinion Dr. Nord should have referred plaintiff to Dr. Lee earlier.\nAlthough Franklin\u2019s cross-claim did contain an allegation Dr. Nord not only failed to properly diagnose plaintiffs hand injury, but also failed to properly treat the injury, no evidence was presented at trial as to the appropriate standard of care for hand surgery and whether Dr. Nord, an orthopedic surgeon, breached that standard of care. Counsel\u2019s follow-up statement to the jury, that there was a lot to speculate about but he was just stating the facts, did not negate the suggestion Dr. Nord may not have properly treated plaintiffs hand injury once he did diagnose it. As no evidence supported counsel\u2019s \u201cspeculation,\u201d it was error to include it in his closing argument and the medical defendants\u2019 objection to it should have been sustained.\nIII. CONCLUSION\nFor the above reasons, we reverse the trial court\u2019s judgment and remand the cause for a new trial.\nReversed and remanded.\nSTEIGMANN, J., concurs.\nPlaintiffs No. 9:\nVERDICT FORM A\nWe, the jury, find for Dawn Auten and against the following defendants:\nChristine Franklin Yes_ No\nLarry Nord, M.D. and\nCentral IL Orthopaedic Surgery Yes_ No_\nWe further find the following:\nFirst: That the total amount of damages suffered by Dawn Auten as a proximate result of the occurrence in question is $_, itemized as follows:\nThe reasonable expense of necessary medical care, treatment, and services received $\nThe disfigurement resulting from the injury $\nThe pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries $\nThe disability experienced and reasonably certain to be experienced in the future $\nPLAINTIFF\u2019S TOTAL DAMAGES: $_\nSecond: Assuming that 100% represents the total combined fault of all persons or entities whose fault proximately caused Dawn Auten f/k/a/ Dawn Barnett\u2019s injury, including any defendant whom you have found liable, we find the percentage of fault attributable to each as follows:\n(a) Christine Franklin _%\n(b) Larry Nord, M.D./Central IL Orthopaedic Surgery %\nTOTAL 100%\nIf you find either defendant not liable to the plaintiff, then you should enter zero (0) as to that defendant.\nThird: We award Dawn Auten recoverable damages in the amount of $_.\nMedical defendants\u2019 No. 29A:\nVERDICT FORM A\nDoes the jury find for Dawn Auten and against Christine Franklin for injuries which the plaintiff suffered to her right forearm?\nChristine Franklin\nYes\nNo\nWe find the total amount of damages suffered by Dawn Auten as a proximate result of the injuries to her right forearm is itemized as follows: $_,\nThe disfigurement resulting from the injury: $_\nThe disability experienced and reasonably certain to be experienced in the future:$_\nThe pain and suffering experienced as a result of the injuries:$_\nThe reasonable expense of necessary medical care, treatment and services received:$_\nPLAINTIFF\u2019S TOTAL DAMAGES FOR INJURIES TO HER RIGHT FOREARM:$_\nDoes the jury find for Dawn Auten and against the following defendant(s) for injuries which the plaintiff suffered to her right index finger?\nChristine Franklin Yes No\nLarry Nord, M.D./Central IL Orthopedic Surgery, S.C. Yes No\nWe find the total amount of damages by Dawn Auten as a\nproximate result of the injuries to her right index finger is itemized as follows: $_,\nThe disfigurement resulting from the injury: $\nThe disability experienced and reasonably certain to be experienced in the future: $\nThe pain and suffering experienced as a result of the injuries: $\nThe reasonable expense of necessary medical care, treatment and services received: $\nPLAINTIFF\u2019S TOTAL DAMAGES FOR INJURIES TO HER RIGHT INDEX FINGER: $_\nAssuming that 100% represents the total combined negligence of all persons whose negligence proximately caused Dawn Auten\u2019s right index finger injury, we find that the percentage of negligence attributable to each as follows:\nChristine Franklin %\nLarry Nord, M.D./Central IL Orthopedic Surgery, S.C. %\nTOTAL 100%\n(Instructions to Jury: If you find any defendant not liable to the plaintiff for her finger injury, then you should enter a zero percent (0%) as to that person or persons.)", "type": "majority", "author": "JUSTICE POPE" }, { "text": "PRESIDING JUSTICE MYERSCOUGH,\ndissenting:\nI respectfully dissent. I disagree that reversible error occurred in closing arguments. Further, I believe Drs. Cooley\u2019s and Haag\u2019s testimony should have been allowed in full but do not believe the court\u2019s ruling constituted reversible error. More important, the trial court did not abuse its discretion by giving IPI Civil (Supp. 2008) No. B45.03.A, the jury was not misled by this instruction, and the medical defendants were not prejudiced by this instruction. I would affirm.\nThe given instruction accurately stated the law. Buka, 386 Ill. App. 3d at 179, 897 N.E.2d at 896 (a trial court must use the IPI instruction unless it does not accurately state the law). The instructions clearly directed the jury to determine the total amount of damages suffered by plaintiff and to apportion each defendant\u2019s degree of fault:\n\u201cIf you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her ***.\u201d\n\u201c[Y]ou must apportion damages by determining the relative degree of fault, if any, of each person *** named or described on the verdict form.\u201d\nThe instructions clearly established that the rights of defendants, Franklin and Nord, are separate and distinct from one another:\n\u201cThe rights of the defendants, Christine Franklin[ ] and Larry Nord, M.D., are separate and distinct from one another. Each defendant is entitled to a fair consideration of his or her own defense and you will decide each defendant\u2019s case separately as if it were a separate lawsuit. Each defendant\u2019s case must be governed by the instructions applicable to that case.\u201d\nThough proposed instruction No. 29A introduced by defendant Nord more fully states the law, that is not the test here.\nEven if we accept the majority\u2019s proposition that the IPI instruction was faulty and did not accurately state the law, that instruction is still appropriate as it did not mislead the jury or result in prejudice to the medical defendants, a prerequisite for reversal. See People v. Rodriguez, 387 Ill. App. 3d 812, 821, 901 N.E.2d 927, 936 (2008) (the reviewing court will not reverse, even if the instruction was faulty, unless the instruction \u201cclearly misled the jury and resulted in prejudice to the appellant\u201d). Indeed, verdict form A clearly provided the jury opportunity to find each defendant responsible for none, part, or all of plaintiffs injuries:\n\u201cWe, the jury, find for Dawn Auten and against the following defendants: Christine Franklin[:] Yes_No_[;] Larry Nord, M.D. and Central IL Orthopaedic Surgery[:] Yes_No_[.] *** Assuming that 100% represents the total combined fault of all persons or entities whose fault proximately caused Dawn Auten f/k/a Dawn Barnett\u2019s injury, including any defendant whom you have found liable, we find the percentage of fault attributable to each as follows: (a) Christine Franklin_% (b) Larry Nord, M.D./ Central IL Orthopaedic Surgery_%[.]\u201d\nVerdict form B allowed a determination on the counterclaim filed by defendant Nord against defendant Franklin:\n\u201cWe, the jury, find for defendant, Larry Nord, M.D.[,] and Central Illinois Orthopedic Surgery, S.C.[,] and against the plaintiff and [c]ounter[-p]laintiff, Christine Franklin.\u201d\nThough no separate verdict form was provided with regard to the counterclaim filed by Franklin against Nord, the jury instructions nevertheless provided more than adequate direction to make the jury aware of Franklin\u2019s counterclaim, and the simplified verdict form that was given allowed sufficient opportunity for the jury to make a determination as to all claims and counterclaims. Additionally, the IPI comments reaffirm that IPI Civil (2006) B45.03.A should be given in this case:\n\u201cThis verdict form is identical to IPI. B45.03.A with the exception of the addition of paragraph \u2018Second\u2019 providing for findings for or against third-party defendants. For cases involving contribution counterclaims among defendants, tried concurrently with the plaintiff\u2019s claim, use B45.03A. For contribution claims which involve third-party complaints use this instruction.\u201d (Emphasis added.) Illinois Pattern Jury Instructions, Civil, No. 600.14, Notes on Use, at 627-28 (2006).\nI recognize plaintiff\u2019s counsel argued, during closing argument, that plaintiff did not have the burden of demonstrating which of her injuries were due exclusively to the motor-vehicle accident and which were due to the medical defendants. However, defense counsel objected to this line of argument, and the objection was sustained. Nevertheless, plaintiff ultimately argued correctly and the jury was properly instructed to make a determination about the doctor\u2019s failure to diagnose the finger, not the forearm:\n\u201cThe plaintiff claims that she was injured and sustained damage, and that the defendant, Christine Franklin, was negligent in one or more of the following respects:\n(a) *** [Flailing to yield ***;\n(b) Failing to keep a proper lookout for other traffic;\n(c) Failing to keep the vehicle she was operating under proper control.\nThe plaintiff further claims that one or more of the foregoing was a proximate cause of [her] injuries.\nThe defendant, Christine Franklin, denies that she was negligent.\nThe plaintiff also claims that she suffered injury to her right index finger and sustained damage, and that defendant, Larry Nord, was professionally negligent in one or more of the following respects:\n(a) Failing to perform an adequate and thorough examination of plaintiff;\n(b) Failing to order the appropriate [X]-rays;\n(c) Failing to diagnose the dislocation of plaintiffs index finger; and\n(d) Failing to properly treat plaintiffs dislocated index finger.\nThe plaintiff further claims that one or more of the foregoing was a proximate cause of her injuries.\nDefendant, Larry Nord, denies that he did any of the things claimed by the plaintiff, denies that he was negligent, and denies that any claimed action or omission on his part was a proximate cause of plaintiffs injuries.\nDefendant, Christine Franklin, counterclaims that she is entitled to contribution from co[d]efendant, Larry Nord, for one or more of the following acts:\n(a) Failing to perform an adequate and thorough examination of plaintiff;\n(b) Failing to order the appropriate [X]-rays;\n(c) Failing to diagnose the dislocation of plaintiffs index finger; and\n(d) Failing to properly treat plaintiffs dislocated index finger.\nDefendant, Larry Nord, denies that he did any of the things claimed by Christine Franklin, denies that he was negligent, denies that he contributed to plaintiffs injuries, and denies that any claimed act or omission on his part was a proximate cause of the plaintiffs claimed injuries.\nDefendant, Larry Nord, counterclaims that he is entitled to contribution from defendant, Christine Franklin, for one or more of the following negligent acts and/or omissions:\n(a) Failing to operate the automobile in a safe and cautious manner;\n(b) Failing to keep a safe and careful lookout for other traffic;\n(c) Failing to stop the automobile or to apply the brakes on the automobile in time to avoid colliding with another automobile;\n(d) *** [Flailing to yield ***.\nChristine Franklin denies that she was negligent.\u201d\nIn these instructions, the trial court specifically instructed the jury that plaintiff claimed she suffered injury to her right index finger due to the medical defendants\u2019 negligence, and the reviewing court must assume the jury followed the jury instructions. See, e.g., People v. Platter, 89 Ill. App. 3d 803, 820, 412 N.E.2d 181, 194 (1980) (\u201cThe jury was properly instructed on the crime of involuntary manslaughter, and we will assume that the jury followed the instructions that were given\u201d).\nThe jury was also correctly instructed that defendant Franklin was responsible for damages resulting from Nord\u2019s actions.\n\u201cIf a defendant negligently causes injury to the plaintiff, then the defendant is liable not only for the plaintiffs damages resulting from that injury, but is also liable for any damages sustained by the plaintiff arising from the efforts of health[-]care providers to treat the injury caused by the defendant[,] even if that health[-]care provider was negligent.\u201d\nSee Illinois Pattern Jury Instructions, Civil, No. 30.23 (2006).\nFurther, when apportioning the degree of fault, the jury clearly considered that the medical defendants were only responsible for the injury to plaintiffs right index finger caused by their negligence. In fact, the evidence supports the jury\u2019s verdict that the medical defendants were responsible for 25% of plaintiffs damages. According to plaintiffs exhibit F, the medical bills related to treatment for (1) the arm injury alone totaled $24,252.42, (2) the finger injury alone totaled $47,035.14, and (3) the arm and finger injury together totaled $36,500, for a grand total of $107,788.54 in medical bills. (The jury awarded $107,000 for the reasonable expense of necessary medical care.) Moreover, the evidence indicated that the residual damage to the right index finger was greater than the injury to her arm. Additionally, plaintiff had significant pain and dysfunction associated with the injury to her right index finger, while she had little discomfort or dysfunction with her arm.\nWithout even taking into account the medical bills for the arm and finger injuries, the medical expenses plaintiff incurred solely for the injury to the right index finger ($47,035.12) are approximately twice as high as the medical expenses for the arm injury alone ($24,252.42). (Combined medical expenses for the arm and finger injuries totaled $36,500.98.) Yet, the jury assessed against the medical defendants 25% of plaintiffs total damages (25% of $307,000), which totals $76,750. That amount comports with the evidence of injury to the index finger for which the medical defendants were responsible.\nThe jury\u2019s verdict clearly does not suggest the jury was misled by the evidence, closing argument, or IPI Civil (Supp. 2008) No. B45.03.A. Indeed, Illinois Supreme Court Rule 239(a) states the IPI Civil are sufficient and not misleading: \u201cWhenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law *** the IPI instruction shall be used ***.\u201d 177 Ill. 2d R. 239(a). As \u201c[a] reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless [the instructions] clearly misled the jury and resulted in prejudice to the appellant,\u201d the trial court\u2019s ruling should be affirmed. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274, 775 N.E.2d 964, 973 (2002).\nThe majority raises the unspoken spectre in this case \u2014 the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 through 100/5 (West 2008)) \u2014 and the fact defendant Nord may be responsible for more than his assessed percentage of fault due to defendant Franklin\u2019s unknown settlement for policy limits referenced on oral argument. However, that matter is not before this court and does not justify reversing an appropriate jury award. The jury made the appropriate calculations and allocations on this record. This was not \u201crocket science\u201d \u2014 the jury considered the evidence and correctly apportioned liability between the parties. We should not now second-guess the jury\u2019s abilities with hypotheticals and evidence not in the record.\nThe majority argues defendant Nord ought not have liability for the forearm. We do not know that he does. That is a matter between the joint tortfeasors and is the reason for the Contribution Act. 740 ILCS 100/2(a), (b) (West 2008). Defendant Nord has a right to an offset for the amount of defendant Franklin\u2019s settlement. Franklin must obtain from the trial court approval of the settlement as being in good faith before she can be released and dismissed. That is defendant Nord\u2019s protection here, as set forth by the legislature in the statute. This is not a wrong that needs to be addressed by this court based on the record and these instructions.\nIt is also of no matter that the settlement was reached after the jury verdict. See Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 286, 641 N.E.2d 402, 411 (1994) (holding that, because \u201cjury verdicts may be modified, reduced, or vacated on post[ ]trial motion or on appeal,\u201d the court \u201cdo[es] not believe *** the parties should be obligated to accept the verdict amount as the final determination of the defendants\u2019 common liability to the plaintiff to be reflected in a post-judgment settlement agreement\u201d). Nor does plaintiff\u2019s settlement with defendant Franklin hinder plaintiff\u2019s right to enforce the judgment against defendant Nord. See Henry v. St. John\u2019s Hospital, 138 Ill. 2d 533, 541, 563 N.E.2d 410, 414 (1990) (holding \u201cthat an injured party does not waive the right to enforce a judgment against a jointly and severally liable tortfeasor by settling with another joint tortfeasor\u201d).\nConcededly, the proposed instruction is a good one, and it would not have been error for the trial court to have given that instruction. However, the instruction given was also proper, and the court did not abuse its discretion by giving the IPI instruction. For these reasons, I would affirm.", "type": "dissent", "author": "PRESIDING JUSTICE MYERSCOUGH," } ], "attorneys": [ "Karen L. Kendall (argued), of Heyl, Royster, Voelker & Allen, of Peoria, and Peter W Brandt, of Livingston, Barger, Brandt & Schroeder, of Blooming-ton, for appellant.", "James P Ginzkey (argued), of Bloomington, for appellee." ], "corrections": "", "head_matter": "DAWN AUTEN, f/k/a Dawn Barnett, Plaintiff-Appellee, v. CHRISTINE FRANKLIN, Defendant (Larry Nord et al., Defendants-Appellants).\nFourth District\nNo. 4\u201409\u20140541\nArgued June 9, 2010.\nOpinion filed October 6, 2010.\nPRESIDING JUSTICE MYERSCOUGH, dissenting.\nKaren L. Kendall (argued), of Heyl, Royster, Voelker & Allen, of Peoria, and Peter W Brandt, of Livingston, Barger, Brandt & Schroeder, of Blooming-ton, for appellant.\nJames P Ginzkey (argued), of Bloomington, for appellee." }, "file_name": "1130-01", "first_page_order": 1146, "last_page_order": 1180 }