{ "id": 4306197, "name": "MIGDALIA SERRANO, Plaintiff-Appellant, v. CARLOS A. ROTMAN, Defendant-Appellee", "name_abbreviation": "Serrano v. Rotman", "decision_date": "2011-02-04", "docket_number": "No. 1\u201409\u20142028", "first_page": "900", "last_page": "915", "citations": [ { "type": "official", "cite": "406 Ill. App. 3d 900" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "142 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236817 ], "year": 1991, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0548-01" ] }, { "cite": "103 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3151941 ], "year": 1984, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0541-01" ] }, { "cite": "176 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544876 ], "year": 1997, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0326-01" ] }, { "cite": "205 Ill. 2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302618 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "88", "parenthetical": "quoting People v. Olinger, 176 Ill. 2d 326, 357 (1997)" }, { "page": "89" }, { "page": "89" }, { "page": "89" }, { "page": "92", "parenthetical": "even if hearsay statement was admissible to show state of mind, error would be harmless where excluded evidence is merely cumulative of other evidence presented by the parties" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0052-01" ] }, { "cite": "373 Ill. App. 3d 929", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269684 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "944" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0929-01" ] }, { "cite": "201 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477049 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "273" }, { "page": "274" }, { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0260-01" ] }, { "cite": "337 Ill. App. 3d 1081", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 894501 ], "year": 2003, "pin_cites": [ { "page": "1085-86" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/337/1081-01" ] }, { "cite": "222 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602061 ], "year": 2006, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0147-01" ] }, { "cite": "372 Ill. App. 3d 1061", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268978 ], "year": 2007, "pin_cites": [ { "page": "1069" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/1061-01" ] }, { "cite": "398 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4295510 ], "weight": 6, "year": 2010, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/398/0639-01" ] }, { "cite": "282 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159566 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "633", "parenthetical": "quoting Maple, 151 Ill. 2d at 454" }, { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0628-01" ] }, { "cite": "151 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "weight": 14, "year": 1992, "pin_cites": [ { "page": "453" }, { "page": "453" }, { "page": "454" }, { "page": "453" }, { "page": "453" }, { "page": "453" }, { "page": "453" }, { "page": "453" }, { "page": "454" }, { "page": "454" }, { "page": "454" }, { "page": "455" }, { "page": "455" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0445-01" ] }, { "cite": "374 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 7328589 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "539" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/374/0536-01" ] }, { "cite": "261 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5372793 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "536" }, { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0531-01" ] }, { "cite": "394 Ill. App. 3d 458", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291037 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "468", "parenthetical": "citing Dremco, Inc. v. Hartz Construction Co., 261 Ill. App. 3d 531, 536 (1994)" }, { "page": "468" }, { "page": "468" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/394/0458-01" ] }, { "cite": "251 Ill. App. 3d 270", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2962011 ], "year": 1993, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0270-01" ] }, { "cite": "271 Ill. App. 3d 594", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249094 ], "year": 1995, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0594-01" ] }, { "cite": "401 Ill. App. 3d 83", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4303018 ], "year": 2010, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/401/0083-01" ] } ], "analysis": { "cardinality": 1163, "char_count": 35128, "ocr_confidence": 0.776, "pagerank": { "raw": 5.112177548335428e-08, "percentile": 0.320862142928024 }, "sha256": "edfc9a1137d2d4854f77adc7a919bebaf0857f232f472d53125e9b04b19e615e", "simhash": "1:9fef95e65ec144ed", "word_count": 5773 }, "last_updated": "2023-07-14T19:33:07.786999+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MIGDALIA SERRANO, Plaintiff-Appellant, v. CARLOS A. ROTMAN, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE FITZGERALD SMITH\ndelivered the judgment of the court, with opinion.\nJustices Howse and Epstein concurred in the judgment and opinion.\nOPINION\nThis medical malpractice claim arose following complications from reverse tubal ligation surgery. Migdalia Serrano (plaintiff) alleged that Dr. Carlos Rotman was negligent in his care and treatment and that such negligence was a proximate cause of her injury. A jury found in favor of Dr. Rotman. Plaintiff now appeals, alleging that (1) the trial court\u2019s ruling in regard to Dr. Rotman\u2019s Illinois Supreme Court Rule 216 (Ill. S. Ct. R. 216 (eff. Aug. 1, 1985)) answer to plaintiffs requests to admit was improper, (2) the trial court\u2019s denial of plaintiffs motion for judgment notwithstanding the verdict was improper, (3) the trial court\u2019s refusal to submit Illinois Pattern Jury Instructions, Civil, No. 10.01 (2006) was an abuse of discretion, and (4) the trial court\u2019s rulings as to the admissions of evidence were improper. For the following reasons, we affirm.\nBACKGROUND\nIn 1984, plaintiff had a tubal ligation. On March 26, 1996, plaintiff visited Dr. Rotman\u2019s office, where she expressed a desire to reverse the tubal ligation. She was provided with medical history forms to complete. Plaintiff answered \u201cno\u201d to having any \u201cbleeding tendencies.\u201d She completed the section regarding her children and did not indicate that her son was a hemophiliac. Plaintiff left the section titled \u201cany other information you would like us to know,\u201d blank.\nDr. Rotman then performed an ultrasound on plaintiff and noted that everything was normal. Plaintiff chose not to undergo the reversal surgery at that time because of finances.\nOn January 13, 1998, plaintiff returned to Dr. Rotman\u2019s office and completed a new patient registration form. She met with certified medical assistant (CMA) Sandra Gutierraz. Gutierraz testified that had plaintiff advised her of any changes or any additional medical history from her prior visit, or that she was a hemophilia carrier, Gutierraz would have documented and flagged such information.\nDr. Rotman examined plaintiff. Plaintiff indicated that she was experiencing pelvic pain. Dr. Rotman discovered that plaintiff had developed endometriosis and indicated that he could treat that at the same time as her reverse tubal ligation surgery. Plaintiffs surgery was scheduled for March 18, 1998.\nPlaintiff testified that she returned to Rotman\u2019s office prior to surgery to make payments and to have blood drawn for \u201cpre-op\u201d tests including a blood-clotting time test. Plaintiff testified that she told Gutierraz during one of her visits that she had spoken with her son\u2019s hematologist about the surgery and that a shipment of Factor IX was being delivered to her home. Subsequently, she called Gutierraz and told her that she needed the Factor IX injected one hour before and one hour after surgery. Plaintiff testified that the day before surgery, Gutierraz called and told her to bring the Factor IX to the surgery.\nOn March 18, 1998, plaintiff took a limousine to the Surgical Center. Plaintiff\u2019s daughter, Celeste, testified that she saw her mother leave the house that morning with nine boxes of Factor IX packed in a large see-through bag.\nAt the Surgical Center, a nurse completed a \u201cpreoperative checklist\u201d on plaintiff. No medications were labeled or indicated in plaintiff\u2019s admitting form, but CMA Gutierraz testified that had plaintiff brought medication in, it would have been labeled.\nPrior to surgery, plaintiff met with the anesthesiologist, Dr. Jay Kiokemeister. Plaintiff testified that the bag containing Factor IX was placed on a table next to her. Plaintiff further testified that she told Dr. Kiokemeister that she needed the Factor IX one hour before surgery and one hour after surgery because she was a hemophiliac carrier. Dr. Kiokemeister noted on his pre-anesthesia form that \u201cpatient has [a] son with history of Factor IX deficiency. Has brought Factor IX in case of urgent matters.\u201d Dr. Kiokemeister stated in his deposition that he understood this to mean that the condition was unique to her son, and not applicable to plaintiff. Dr. Kiokemeister further noted that plaintiffs clotting times were within normal range.\nAccording to Dr. Rotman, Dr. Kiokemeister never advised him about plaintiffs Factor IX medication, and Dr. Rotman never saw Factor IX in the operating room.\nDr. Nasiruddin Rana assisted Dr. Rotman with plaintiffs surgery. Dr. Rana testified at trial that he had no knowledge of plaintiffs hemophilia/Factor IX condition and did not recall seeing Factor IX in the operating room.\nThe surgery was completed at 12:15 p.m., and anesthesia was completed at 1 p.m. Plaintiff did not have any complications during the surgery and was discharged from the recovery room at 5:20 p.m. Plaintiff testified that Dr. Rotman saw her in recovery and told her the surgery went well and that it was not necessary to use her medication. Plaintiff further testified that the bag of Factor IX was returned to a family member in the waiting area of the Surgical Center.\nOn March 23, 1998, plaintiff arrived at Dr. Rotman\u2019s for a postoperative examination. Gutierraz removed her stitches. On March 28, 1998, plaintiff called Dr. Rotman\u2019s office and complained of \u201coozing\u201d and pain. Dr. Rotman was out of town, but CMA Gutierraz had plaintiff come in to the office. Gutierraz cleaned the wound and prescribed antibiotics and Vicodin. Plaintiff testified that Gutierraz advised her to see the doctor in Oakbrook if she got worse and to return to Dr. Rotman\u2019s on Monday. Gutierraz, on the other hand, testified that she told plaintiff to see Dr. Rana in Oakbrook, but that plaintiff wanted to try the prescriptions first, and that plaintiff would call if her condition changed.\nLater that day, plaintiff went to the emergency room for a hematoma and was then admitted to the hospital where she received intravenous antibiotics. Gutierraz called Dr. Rana to notify him of plaintiff\u2019s emergency room visit and admission to the hospital. Dr. Rana called the hospital and learned that plaintiff had an infected hematoma.\nPlaintiff\u2019s initial complaint, which was filed on March 15, 2000, claimed that she has not worked since March of 1998 and that she is only able to stand, walk, or sit with her leg down for short time periods without pain and swelling. She named as defendants Dr. Rotman, Dr. Kiokemeister, MacNeal Hospital, Oakbrook Surgical Center, Dr. Brian Ralston, Dr. Rana, Dr. Jose Rodriguez, and Dr. Lawrence Schilder. On December 1, 2000, the court dismissed Oakbrook Surgical Center as a defendant. Thereafter, both Dr. Rana\u2019s and Dr. Kiokemeister\u2019s motions to dismiss were granted. Plaintiff then voluntarily dismissed the remainder of her case.\nOn October 11, 2005, plaintiff refiled her cause of action sounding in negligence against MacNeal Hospital and Dr. Rotman. Plaintiff settled with the hospital. Plaintiff alleged that Dr. Rotman was negligent in her care and treatment and that he deviated from the standard of care in obtaining her medical history and failing to administer Factor IX before or after her surgery. The jury returned a general verdict in favor of Dr. Rotman, and plaintiff now appeals.\nANALYSIS\nA. Rule 216 Admission\nThe following appeared in Dr. Rotman\u2019s response to plaintiff\u2019s Rule 216 requests for admission, which was signed by his attorney:\n\u201cRequest: You elected not to infuse [plaintiff] with Factor IX Concentrate prior to, during or following surgery.\nResponse: Admitted.\u201d\nDuring cross-examination of Dr. Rotman, plaintiffs counsel moved to read into evidence Dr. Rotman\u2019s answer to plaintiffs request to admit and asked the trial court to instruct the jury that such admission was a judicial admission. Plaintiff\u2019s counsel argued that such admission \u201cclearly implies that he made a conscious decision\u201d not to administer Factor IX. Defense counsel countered that it was only a judicial admission as to his election not to administer Factor IX, not as to his knowledge that plaintiff had a Factor IX deficiency. The trial court stated that \u201c[w]hat [Dr. Rotman] can say is the reason I didn\u2019t elect to infuse her is I didn\u2019t know anything about it or whatever medical reason he has, but *** it is an admitted fact that he elected not to infuse her.\u201d The trial court went on to say that \u201cthe doctor may say that I didn\u2019t know anything about it, so *** I did not elect to infuse for whatever reason.\u201d Dr. Rotman\u2019s response to plaintiff\u2019s request to admit was then published to the jury.\nDuring cross-examination, Dr. Rotman testified that he never learned that plaintiffs Factor IX was available at the surgical center. Plaintiffs counsel requested that the trial court \u201cformally instruct the jury that the matter admitted in the request to admit is a judicial and binding admission and cannot be contested in this trial.\u201d The trial court stated, \u201cIt\u2019s an admission of fact,\u201d and that the debate was not whether Dr. Rotman elected to give the Factor IX, because that was an admission of fact, but rather what his reason was for not electing to administer Factor IX. The trial court specifically found that Dr. Rot-man\u2019s reason for not electing to give the Factor IX could certainly have been that he had no knowledge of plaintiffs Factor IX deficiency.\nPlaintiffs counsel then resumed cross-examination of Dr. Rotman, where the following complained-of colloquy took place:\n\u201c[Plaintiffs counsel]: Now, just so we understand what you\u2019re telling us, are you saying that you remember that there was no medication there when you spoke to [plaintiff]?\n[Defense counsel]: Objection. It\u2019s been asked and answered. He said he never knew at any time about this Factor IX.\nTHE COURT: He\u2019s said that. Let\u2019s move on. Asked and answered.\n[Plaintiffs Counsel]: I couldn\u2019t understand if he says he doesn\u2019t remember or if he knows it wasn\u2019t there, your Honor.\n[Defendant Counsel]: I don\u2019t know how he can be more specific, your Honor.\n* * *\n[Plaintiff\u2019s Counsel]: Did you recognize, at the time of this surgery, that a patient who has hemophilia could bleed at any time during and after the surgery and is a higher risk after that?\n[Defense Counsel]: Objection, your Honor. The doctor said repeatedly he never knew about hemophilia or Factor IX. So it has no relevance to this surgery whatsoever from the standpoint\u2014\n[Plaintiffs Counsel]: That\u2019s contested.\nTHE COURT: I understand that. But he may \u2014 you can ask academic questions along those lines.\n[Defense Counsel]: Was he asking it generally, or was he asking it trying to infer that [Dr. Rotman] knew when [he] said he never knew\u2014\n[Plaintiffs Counsel]: He doesn\u2019t need to make speeches.\nTHE COURT: I thought I ruled.\n* * *\n[Plaintiffs Counsel]: It has been established that you have admitted in this case that\u2014\n[Witness]: That\u2019s not true. *** You\u2019re playing with words. I never said that. I cannot elect not to do something that I have no knowledge of.\n[Plaintiffs Counsel]: Were you sitting here and did you hear this presented to the jury, that it was admitted?\n[Defense Counsel]: Objection, your Honor.\n[Witness]: Admitted by you, not by me.\n[Defense Counsel]: How could he do something he knows nothing about? That\u2019s how he answered it. How many times do we have to go through this?\nTHE COURT: I know what the record shows. This was gone into. Let\u2019s go into something else.\u201d\nOn appeal, plaintiff argues that Dr. Rotman\u2019s Rule 216 answer was improperly treated as an evidentiary admission, rather than a judicial admission. Plaintiff further argues that Dr. Rotman should not have been able to explain the judicial admission, or disavow it, on the witness stand. Dr. Rotman counters that his answer was given proper treatment at trial and that, in any event, plaintiff was permitted to publish his answer to the jury and argue to the jury that such answer should be interpreted to mean Dr. Rotman had knowledge of plaintiffs Factor IX deficiency.\nJudicial admissions are formal admissions in the pleadings that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Konstant Products, Inc. v. Liberty Mutual Fire Insurance Co., 401 Ill. App. 3d 83, 86 (2010). For a statement to constitute a judicial admission, it must be clear, unequivocal, and uniquely within the party\u2019s personal knowledge. Williams Nationalease, Ltd. v. Motter, 271 Ill. App. 3d 594, 597 (1995). The statement must also be an intentional statement which relates to concrete facts and not an inference or unclear summary. Poelker v. Warrensburg-Latham Community Unit School District No. 11, 251 Ill. App. 3d 270, 286 (1993).\nAn abuse of discretion standard applies when reviewing a circuit court\u2019s treatment of judicial admissions. Smith v. Pavlovich, 394 Ill. App. 3d 458, 468 (2009) (citing Dremco, Inc. v. Hartz Construction Co., 261 Ill. App. 3d 531, 536 (1994)). An abuse of discretion may be found only where no reasonable person would take the view adopted by the circuit court. Pavlovich, 394 Ill. App. 3d at 468. What constitutes a judicial admission must be decided under the circumstances in each case, and before a statement can be held to be such an admission, it must be given a meaning consistent with the context in which it was found. Pavlovich, 394 Ill. App. 3d at 468 (citing Dremco, Inc., 261 Ill. App. 3d at 536). It must also be considered in relation to the other testimony and evidence presented. Pavlovich, 394 Ill. App. 3d at 468.\nA trial court may exclude evidence on an issue which has been judicially admitted because: (1) the evidence is no longer relevant to the issues remaining in the case; (2) the evidence may be superfluous and confusing; and (3) the other party may not necessarily be entitled to the additional dramatic force of the evidence. Rath v. Carbondale Nursing & Rehabilitation Center, Inc., 374 Ill. App. 3d 536, 539 (2007). The rule is not absolute however, and a trial court is afforded discretion in evidentiary rulings. Rath, 374 Ill. App. 3d at 539.\nIn the circumstances of this case, we cannot conclude that the trial court abused its discretion in its ruling on Dr. Rotman\u2019s Rule 216 answer. The Rule 216 request to admit at issue was not clear or unequivocal. Rather, it was ambiguous. As such, the trial court opted to treat the statement as an evidentiary admission rather than a judicial admission, allowing Dr. Rotman to explain the basis for his admission. The basis for Dr. Rotman\u2019s answer that he \u201celected not to administer Factor IX\u201d to plaintiff was that he had no knowledge that it existed, nor that plaintiff was Factor IX deficient. The trial court likewise allowed plaintiff to argue to the jury that the basis for Dr. Rotman\u2019s answer that he \u201celected not to administer Factor IX\u201d was that he had knowledge of plaintiff\u2019s condition and chose not to give her medicine despite such knowledge.\nPlaintiff urges us to find that Dr. Rotman should have argued ambiguity prior to trial and should not have answered the request as \u201cadmitted\u201d if he thought it was ambiguous. However, we note that it is not our position that Dr. Rotman thought the Rule 216 request to admit was ambiguous. Rather, it is our position that Dr. Rotman believed the Rule 216 request to admit had no bearing on knowledge of plaintiff\u2019s condition and only went to the fact of whether he administered Factor IX to plaintiff prior to the surgery. At trial, it became apparent that plaintiff meant for the word \u201celection\u201d to mean that Dr. Rotman knew of the Factor IX and made a conscious decision not to administer it. Because such ambiguity did not present itself until trial, we find that the trial court\u2019s treatment of Dr. Rotman\u2019s admission did not constitute an abuse of discretion. We cannot say that no reasonable person would have adopted the same view. See Pavlovich, 394 Ill. App. 3d at 468.\nPlaintiff further argues that her motion for a directed verdict based on Dr. Rotman\u2019s Rule 216 admission should have been granted, and that the trial court committed reversible error in not granting such motion. At the close of evidence, plaintiff moved for a directed verdict based solely upon the judicial admission that Dr. Rotman elected not to give Factor IX to plaintiff. The trial court found that Dr. Rotman\u2019s knowledge as to plaintiffs Factor IX deficiency was an issue for the jury to decide.\nA directed verdict is properly entered in those limited cases where all of the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant so that no contrary verdict based on the evidence could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). In ruling on a motion for a directed verdict, a court does not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather, it may only consider the evidence, and any inferences therefrom, in the light most favorable to the party resisting the motion, which is Dr. Rotman in this case. See Maple, 151 Ill. 2d at 453. A directed verdict is improper where \u201c \u2018there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome.\u2019 \u201d City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 633 (1996) (quoting Maple, 151 Ill. 2d at 454). We review a trial court\u2019s denial of a motion for a directed verdict de novo. Mentzer, 282 Ill. App. 3d at 633.\nIn viewing the evidence in a light most favorable to Dr. Rotman, we cannot say that all of the evidence overwhelmingly favors plaintiff. The issue to be determined for the trial court was whether Dr. Rotman had knowledge of plaintiff\u2019s Factor IX deficiency. The Rule 216 admission stating that Dr. Rotman admitted that he elected not to administer Factor IX to plaintiff did not conclusively establish that he had knowledge of plaintiffs Factor IX deficiency. To the contrary, as has been discussed above, the only fact such admission established was that Dr. Rotman elected not to administer Factor IX. The basis for such election was very much in dispute. Accordingly, because there was a \u201csubstantial factual dispute,\u201d the trial court properly denied plaintiffs motion for a directed verdict. See Maple, 151 Ill. 2d at 453.\nB. Judgment Notwithstanding the Verdict\nPlaintiff next contends that the \u201cevidence in this case, when taken as a whole, so overwhelmingly established Dr. Rotman\u2019s liability, that, when coupled with the uncontested evidence on causation and damages, a judgment in plaintiff\u2019s favor was warranted.\u201d Plaintiff therefore argues that her motion for a judgment notwithstanding the verdict (judgment n.o.v.) should have been granted. Dr. Rotman counters that there was conflicting evidence and thus a judgment n.o.v. was improper.\nWe review de novo a trial court\u2019s denial of a motion for a judgment n.o.v. Ford v. Grizzle, 398 Ill. App. 3d 639, 650 (2010). A judgment n.o.v. is properly entered where all the evidence, when viewed in the light most favorable to the nonmoving party (Dr. Rotman), so overwhelmingly favors the moving party that no contrary verdict based on that evidence could ever stand. Maple, 151 Ill. 2d at 453. In ruling on a motion for a judgment n.o.v., the court does not weigh the evidence, nor is it concerned with the credibility of the witnesses. Maple, 151 Ill. 2d at 453. Instead, the court may only consider the evidence, and any rational inferences therefrom, in the light most favorable to the nonmoving party. Maple, 151 Ill. 2d at 453.\nFurther, a judgment n.o.v. may not be granted merely because a verdict is against the manifest weight of the evidence. Maple, 151 Ill. 2d at 453. \u201cA trial court has no right to enter a judgment n.o.v. if there is any evidence demonstrating a substantial factual dispute or where the assessment of the witnesses\u2019 credibility or the determination regarding conflicting evidence is decisive to the outcome at the trial.\u201d Grizzle, 398 Ill. App. 3d at 650 (citing Maple, 151 Ill. 2d at 454).\nAlternatively, on a motion for a new trial, a court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. Grizzle, 398 Ill. App. 3d at 651 (citing Maple, 151 Ill. 2d at 454). A verdict is against the manifest weight of the evidence where the opposite result is clearly evident or where the jury\u2019s findings are unreasonable, arbitrary, and not based on the evidence. Grizzle, 398 Ill. App. 3d at 651 (citing Maple, 151 Ill. 2d at 454). We will not reverse a trial court\u2019s ruling on a motion for a new trial unless it is affirmatively shown that the court clearly abused its discretion, because the trial judge had the benefit of observing the witnesses firsthand at the trial. Grizzle, 398 Ill. App. 3d at 651 (citing Maple, 151 Ill. 2d at 455). In determining whether the trial court abused its discretion, we must consider whether the jury\u2019s verdict was supported by the evidence and whether the losing party was denied a fair trial. Grizzle, 398 Ill. App. 3d at 651 (citing Maple, 151 Ill. 2d at 455).\nAfter a careful review of the evidence adduced at trial, as set forth above, we cannot find that the jury\u2019s findings were unreasonable, arbitrary, and not based upon the evidence. The jury in this case heard conflicting testimony regarding whether Dr. Rotman knew about plaintiffs Factor IX deficiency. CMA Gutierraz testified that she did not recall ever being advised of plaintiffs condition and that if she was so advised, it would have been in plaintiffs medical chart. Dr. Rotman repeatedly testified that he never had knowledge of plaintiffs condition from any source. Plaintiff, on the other hand, testified that she brought the medication with her to the surgery and that it was present in the surgical room with her. Since the witnesses\u2019 testimony in this case conflicted, the question of whom to believe and what weight to give to all the evidence was a decision for the trier of fact, whose determinations should not be upset on review unless manifestly erroneous. Jackson v. Seib, 372 Ill. App. 3d 1061, 1069 (2007). It is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide the weight to be given to the witnesses\u2019 testimony. Maple, 151 Ill. 2d at 452. For these reasons, we cannot conclude that the trial court erred in denying plaintiffs requests for a judgment n.o.v. or a new trial.\nC. Illinois Pattern Jury Instruction\nPlaintiffs next contention on appeal is that the trial court committed reversible error by refusing her Illinois Pattern Jury Instructions, Civil, No. 10.01 (2006) (hereinafter, IPI Civil (2006) No. 10.01), concerning the conduct of CMA Gutierraz. IPI Civil (2006) No. 10.01 is the instruction for ordinary negligence as to an unlicensed person. Plaintiff asserts that one of her theories of recovery was vicarious liability: that Dr. Rotman was liable for the actions or omissions of CMA Gutierraz; and, as such, the trial court committed reversible error by disregarding plaintiff\u2019s theory of vicarious liability based on CMA Gutierraz\u2019s negligence. Dr. Rotman responds that the trial court\u2019s refusal of plaintiffs tendered IPI Civil (2006) No. 10.01 was proper and not an abuse of discretion because the sole defendant in this case was Dr. Rotman.\nThe determination to provide a particular jury instruction is within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. York v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 222 Ill. 2d 147, 203 (2006). Specifically, the 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. Lewis v. Haavig, 337 Ill. App. 3d 1081, 1085-86 (2003). \u201cThe standard for deciding whether a trial court abused its discretion is whether, taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal principles.\u201d Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002). On appeal, a trial court will not be reversed \u201cfor giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant.\u201d Schultz, 201 Ill. 2d at 274.\nIn the case at bar, the trial court gave the jury a modified version of Illinois Pattern Jury Instructions, Civil, No. 105.01 (2006) (hereinafter, IPI Civil (2006) No. 105.01), which defined professional negligence as to a gynecological surgeon. The court also gave plaintiffs tendered agency instruction, which stated: \u201cSandra Gutierraz was the agent of the defendant Carlos Rotman, M.D., at and before the time of this occurrence. Therefore, any act or omission of the agent at that time was in law the act or omission of the defendant, Carlos Rotman, M.D.\u201d Plaintiff tendered IPI Civil (2006) No. 10.01, which defined ordinary negligence as to an unlicensed person. The trial court deferred ruling, stating, \u201cThe doctor is the only one here.\u201d\nLater, the trial court reconsidered IPI Civil (2006) No. 10.01. Plaintiff argued that what Gutierraz did in the operating room was incompatible with the training and experience of a CMA. The trial court found that delegating responsibility to Gutierraz was Dr. Rotman\u2019s responsibility, which is part of the allegations of Dr. Rotman\u2019s negligence which, in turn, goes to the jury.\nThe trial court also struck count II of plaintiffs second amended complaint, which alleged vicarious liability against Dr. Rotman for the conduct of CMA Gutierraz. The issues presented to the jury only reference Gutierraz in the following context: \u201cThe plaintiff claims that she was injured and sustained damages, and that the defendant was negligent in one or more of the following aspects: *** (d) improperly delegated to Sandra Gutierraz the task of observing and reporting the plaintiffs post-operative condition.\u201d The jury was not presented with any issue related to a finding that CMA Gutierraz was negligent, and thus, there would be no need for an instruction on ordinary negligence. Rather, the only defendant was Dr. Rotman, and the jury was free to find that he was professionally negligent in his delegation of duties to CMA Gutierraz, but not that Gutierraz herself was negligent, especially considering the fact that the vicarious liability count was struck from the second amended complaint. Therefore, the issues presented to the jury solely involved Dr. Rotman\u2019s conduct, which was covered by IPI Civil (2006) No. 105.01.\nPlaintiffs reliance on Petre v. Cardiovascular Consultants, S.C., 373 Ill. App. 3d 929 (2007), does not persuade us otherwise. In Petre, the plaintiffs theory against a hospital was based on vicarious liability for some negligent act or omission of a hospital employee. The jury was only given instructions pertaining to a vicarious liability theory, and not regarding institutional negligence. The court held that because the jury ultimately found that the doctor did not act negligently, a vicarious liability negligence claim against the hospital could only be based on the negligent act or omission of some other employee of the hospital. Therefore, the court found that because there was no competent testimony regarding the standard of care for such an employee, the jury\u2019s verdict was against the manifest weight of the evidence. Petre, 373 Ill. App. 3d at 944.\nIn the case at bar, the jury was not given instructions pertaining to vicarious liability, as that count was stricken from plaintiffs second amended complaint. Rather, they were only given instructions pertaining to Dr. Rotman\u2019s conduct, and the professional negligence standard covered by IPI Civil (2006) No. 105.01. The only mention of CMA Gutierraz was whether Dr. Rotman was negligent in his delegation of duties to her, not whether Dr. Rotman was vicariously negligent for her acts or omissions. As such, Petre is distinguishable from the case at bar. We find that, taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal principles, and, thus, the trial court did not abuse its discretion in refusing to give an instruction on ordinary negligence. See Schultz, 201 Ill. 2d at 273.\nD. Hearsay\nPlaintiffs final contention on appeal is that the trial court committed reversible error when it barred her testimony of out-of-court statements made by Dr. Kiokemeister concerning plaintiffs need for Factor IX, and when it barred her daughter\u2019s testimony regarding statements made by an employee at the Oakbrook Surgical Center. Plaintiff argues that the out-of-court statements either fell into an exception to the rule against hearsay or were not offered to prove the matters asserted. Dr. Rotman responds that the trial court properly barred the out-of-court statements from being admitted into evidence.\n\u201c \u2018Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an exception to the hearsay rule.\u2019 \u201d People v. Caffey, 205 Ill. 2d 52, 88 (2001) (quoting People v. Olinger, 176 Ill. 2d 326, 357 (1997)). The parties agree as to the standard of review. \u201cEvidentiary rulings are within the sound discretion of the trial court and will not be reversed unless the trial court has abused that discretion.\u201d Caffey, 205 Ill. 2d at 89. \u201cAn abuse of discretion will be found only where the trial court\u2019s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.\u201d Caffey, 205 Ill. 2d at 89.\n1. Plaintiffs Testimony\nPrior to trial, plaintiff made an offer of proof of her testimony concerning her pre-op conversation with Dr. Kiokemeister for the purpose of showing his state of mind. Following a hearing, the trial court allowed plaintiffs statements to Dr. Kiokemeister but not his responses to her.\nIn her brief, plaintiff states that \u201c[t]he first statement at issue was that, after learning that plaintiff brought Factor IX to her surgery, Dr. Kiokemeister told her that he was going to speak with Dr. Rotman. He then left for about 20 minutes.\u201d These two sentences are unsupported by record citations. Nevertheless, plaintiff argues that she should have been allowed to testify as to Dr. Kiokemeister\u2019s statement regarding his desire to talk to Dr. Rotman because such statement fell within the \u201cstate of mind\u201d exception to hearsay.\nStatements that indicate the declarant\u2019s state of mind are admissible as exceptions to the hearsay rule when the declarant is unavailable to testify, there is a reasonable probability that the preferred hearsay statements are truthful, and the statements are relevant to a material issue in the case. Caffey, 205 Ill. 2d at 91 (citing People v. Floyd, 103 Ill. 2d 541, 546 (1984)). The state of mind exception applies only to the state of mind of the declarant and not the state of mind of someone other than the declarant. People v. Lawler, 142 Ill. 2d 548, 559 (1991).\nHere, plaintiff seems to be arguing that Dr. Kiokemeister\u2019s statement that he was going to talk to Dr. Rotman indicates that his state of mind was such that he knew about plaintiffs Factor IX deficiency and, thus, the statement goes to the ultimate issue of whether Dr. Rotman knew plaintiff had a Factor IX deficiency. We agree with the trial court\u2019s finding that such a statement was offered to prove Dr. Rotman\u2019s state of mind, rather than Dr. Kiokemeister\u2019s state of mind, and that the prejudice to that statement far outweighed the probative value. We certainly cannot say that the trial court\u2019s ruling was arbitrary, fanciful, unreasonable, or that no reasonable person would have taken the view adopted by the trial court. See Caffey, 205 Ill. 2d at 89. Accordingly, we find that the trial court did not abuse its discretion in not admitting Dr. Kiokemeister\u2019s alleged testimony.\nPlaintiff also contends that a second statement should have been admitted, specifically, what Dr. Kiokemeister said to her when he returned 20 minutes later: \u201cthat he spoke with Dr. Rotman and learned that plaintiffs clotting levels were fine, and that her Factor IX would be taken into surgery in case it was needed.\u201d Plaintiff argued that such statement was not offered for its truth, but to show her reasonable belief that Dr. Rotman understood her treatment needs before surgery. Again, plaintiff is offering Dr. Kiokemeister\u2019s statement to show another person\u2019s state of mind. In this instance, it is to show plaintiffs state of mind. As stated above, the state of mind exception only applies to the declarant\u2019s state of mind. Accordingly, we find that the trial court did not abuse its discretion in barring testimony regarding Dr. Kiokemeister\u2019s alleged statements.\n2. Celeste\u2019s Testimony\nPlaintiffs final contention is that her daughter, Celeste, should have been allowed to testify that when she was in the Oakbrook Surgical Center, an employee came out with the bag of Factor IX and stated that \u201cthey did not \u2018need to use this.\u2019 \u201d Plaintiff argued that the statement was not being offered to establish that the Factor IX was not needed, but rather to show that the employee knew the product was available to treat plaintiff. Plaintiff has failed to show how the state of mind of this alleged employee is relevant as to whether Dr. Rotman had knowledge of plaintiffs Factor IX deficiency.\nMoreover, we find that there was no prejudice here where the statement would be merely cumulative. See Caffey, 205 Ill. 2d at 92 (even if hearsay statement was admissible to show state of mind, error would be harmless where excluded evidence is merely cumulative of other evidence presented by the parties). Celeste testified that she saw the Oakbrook Surgical Center nurse hand the bag of Factor IX to the family member and that it appeared that none of the medication had been used. Accordingly, we find that the trial court did not abuse its discretion in barring Celeste from testifying as to the employee\u2019s out-of-court statement.\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County.\nJudgment affirmed.\nJustice Michael P. Toomin originally participated in this cause. However, he has since left this Court. Justice James Epstein, in Justice Toomin\u2019s stead, has considered the briefs, record and oral argument in this matter, and now joins in the instant decision.", "type": "majority", "author": "PRESIDING JUSTICE FITZGERALD SMITH" } ], "attorneys": [ "Debra A. Thomas, P.C., of Glen Ellyn (Debra A. Thomas, of counsel), and Law Office of Harry C. Lee (Harry C. Lee, of counsel), and Law Offices of Keith L. Davidson (Keith L. Davidson, of counsel), both of Chicago, for appellant.", "Barker & Castro, LLC (Krista R. Frick, of counsel), and Bollinger, Ruberry & Garvey (John M. Stalmack, of counsel), both of Chicago, for appellee." ], "corrections": "", "head_matter": "MIGDALIA SERRANO, Plaintiff-Appellant, v. CARLOS A. ROTMAN, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201409\u20142028\nOpinion filed February 4, 2011.\nDebra A. Thomas, P.C., of Glen Ellyn (Debra A. Thomas, of counsel), and Law Office of Harry C. Lee (Harry C. Lee, of counsel), and Law Offices of Keith L. Davidson (Keith L. Davidson, of counsel), both of Chicago, for appellant.\nBarker & Castro, LLC (Krista R. Frick, of counsel), and Bollinger, Ruberry & Garvey (John M. Stalmack, of counsel), both of Chicago, for appellee." }, "file_name": "0900-01", "first_page_order": 916, "last_page_order": 931 }