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Petre v. Kucich2/17/2005
This is the second time this case has come before the appellate court. Plaintiff Jane Petre, special administrator of the estate of James J. Petre, Jr., filed this medical malpractice action against defendants Vincent A. Kucich, M.D., Dr. Kucich's practice group, Cardiovascular Consultants, S.C., d/b/a Cardiovascular Medical Associates, S.C. (CMA), St. Francis Hospital and Health Center, Dr. Robert E. Applebaum, Dr. Hershel Wix, Dr. David Looyenga, Dr. Robert Prentice, Dr. George Gustafson, and Hickory Cardiology Associates, Ltd. Plaintiff sought recovery for injuries sustained by Petre following coronary artery bypass surgery performed by Dr. Kucich at St. Francis Hospital and Health Center in Blue Island, Illinois. After the surgery, a postoperative wound infection developed, ultimately necessitating the removal of Petre's sternum and additional reconstructive surgery.
In this appeal, following the second trial where the jury found in favor of Kucich and CMA (collectively, defendants), plaintiff argues (1) the trial court erred in failing to enter a judgment notwithstanding the verdict when defendants' expert witnesses admitted the facts and opinions supporting plaintiff's case; (2) the trial court erred by admitting evidence concerning the negligence of subsequent treaters; (3) the court should have granted plaintiff a new trial as a result of prejudice arising from the admission of evidence concerning negligence of subsequent treaters; (4) the court erred in failing to give the jury the sole proximate cause instruction, Illinois Pattern Jury Instructions, Civil, No. 12.04 (2000) (hereinafter IPI Civil (2000) No. 12.04); (5) the court erred in denying plaintiff's motion for a mistrial after a defense witness violated an in limine order barring evidence of Petre's history of smoking; and (6) the court erred in admitting opinion evidence not disclosed under Supreme Court Rule 213 (177 Ill. 2d R. 213). For the following reasons, we reverse and remand for a new trial.
Prior to the first trial in 2000, plaintiff settled with St. Francis Hospital for $5,000 and dismissed it from this action. Plaintiff also voluntarily dismissed Drs. Wix, Looyenga, Prentice, Applebaum, and Gustafson, and Hickory Cardiology Associates, Ltd. (collectively, Hickory defendants). Following a jury trial, the trial court entered judgment for plaintiff and against Kucich and CMA in the amount of $465,000. Defendants then appealed, arguing that the trial court erred in excluding evidence of the alleged negligence of the previously dismissed Hickory physicians, thus preventing defendants from asserting the "empty chair" defense, i.e., from claiming that postoperative negligence on the part of the dismissed Hickory defendants was the sole proximate cause of Petre's injuries. Petre v. Kucich, 331 Ill. App. 3d 935, 937, 771 N.E.2d 1084, 1086 (2002). Defendants also contended that the trial court erred in refusing to tender the appropriate jury instruction on sole proximate cause, IPI Civil No. 12.04.
In the first appeal, the appellate court reversed and remanded for a new trial, finding that the trial court "erred as a matter of law both in precluding evidence of the dismissed Hickory physicians' conduct and in refusing to give the appropriate jury instruction, thereby denying defendants a fair trial." Petre, 331 Ill. App. 3d at 938, 771 N.E.2d at 1087. In so holding, this court relied on Leonardi v. Loyola University of Chicago , 168 Ill. 2d 83, 658 N.E.2d 450 (1995), which held that a defendant's answer which denies that an injury was the result of or caused by the defendant's conduct is sufficient to permit the defendant to present evidence that the injury was the result of another cause.
Leonardi,
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