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FIRST DIVISION
May 27, 2003

PRESIDING JUSTICE GORDON delivered the opinion of the court:

Following a jury trial,⁽¹⁾ the trial court entered judgment on the jury's general verdict infavor of plaintiff Joan Morus (plaintiff) as against defendant Dr. George Kapusta (defendant) inthe amount of $1.5 million, with respect to the death of decedent Frank Morus (Morus) uponelective gall bladder surgery performed by defendant.⁽²⁾ Defendant filed a posttrial motion seekingjudgment notwithstanding the verdict or, in the alternative, a new trial. The trial court deniedthis motion. Defendant now appeals, asking that we reverse the judgment of the trial court andenter judgment in his favor or, in the alternative, that we remand the cause for a new trial. Forthe following reasons, we affirm.

BACKGROUND

Decedent Morus, who had a history of congestive heart failure (CHF), was admitted toChrist Hospital in Oak Lawn, Illinois, on June 8, 1995. Initially, he was suffering from swollenlegs, a breakdown in his skin and infection. While in the hospital, Morus developed gastricproblems, including nausea. It was determined that he was suffering from cholecystitis (diseasedgall bladder), and elective cholecystectomy surgery (gall bladder removal) was recommended andscheduled for June 30, 1995. Defendant, a surgeon, was asked to give a surgical consultation,and he agreed with this recommendation.

Upon Morus' admission on June 8, 1995, he was diagnosed by several doctors as being incontinued CHF. Four portable chest X rays were taken between June 8 and 13, 1995, and eachrevealed that Morus had the major symptoms of CHF, including an enlarged heart, pulmonarycongestion and bilateral pleural effusions (fluid accumulation in the spaces between the lungsand the chest walls). A full chest X ray was never taken of Morus, nor was any other portablechest X ray taken between June 13 and 30, 1995, prior to the scheduled surgery.

While in the hospital, Morus was taking a daily dose of aspirin in response to concernsregarding his medical history with respect to strokes. Morus continued taking aspirin every dayuntil the day before the scheduled surgery. Also, upon his admission to the hospital, Morusweighed 221 pounds. He was placed on a diuretic, and his weight dropped to 215 pounds. In the8 days before the scheduled surgery, Morus gained 11 pounds.

Defendant performed surgery on Morus on the scheduled date of June 30, 1995. Defendant did not use a Swan-Ganz catheter or an arterial line during surgery to monitor Morus'heart and lung pressure. The surgery was completed that afternoon, and Morus was taken to thegeneral recovery room. Defendant left the hospital. While in the recovery room, Morus' bloodpressure dropped and he began experiencing respiratory problems. Morus was placed on aventilator and was transferred to the surgical intensive care unit. Morus then went into shock. By 1 a.m. the next day (July 1, 1995), his pupils were dilated and he was nonresponsive in acomatose state. Defendant received four telephone calls at several points throughout the night ofJune 30, 1995, from the on-call surgical resident describing Morus' condition and deterioration. Defendant did not return to the hospital until some time later in the morning of July 1, 1995,between 6 a.m. and 7 a.m. At 9 a.m., defendant and other doctors involved in Morus' care, aswell as Morus' family, decided to remove Morus from the ventilator pursuant to his living will,and Morus died. An autopsy revealed that Morus had an enlarged heart and pleural effusionsconsistent with CHF, and that he had bled internally. The autopsy also showed that Morus hadbeen suffering from renal failure.

Plaintiff, Morus' wife, filed a complaint at law against defendant containing a survivalcount and a wrongful death count. Plaintiff alleged that defendant violated preoperative, surgicaland postoperative medical standards of care in treating Morus, and that defendant's negligence inone or more of these respects was a contributing and proximate cause of Morus' death. The caseproceeded through discovery, and during a pretrial conference, plaintiff filed several motions inlimine. One included a motion to preclude defendant from submitting any opinions concerningMorus' life expectancy other than that he would not have been expected to live "more than anadditional five years." After discussing this with the parties, the trial court granted plaintiff'smotion in limine, and stated that the experts' opinions as to Morus' life expectancy would besubject to cross-examination during trial. Later, during a jury instruction conference prior totrial, the court and the parties again discussed Morus' life expectancy. Plaintiff presented aninstruction utilizing life expectancy tables, but the court and the parties agreed that theinformation contained in the tables was not applicable to the instant case based on the evidencethat would be presented with respect to Morus' particular life expectancy. A discussion thenensued as to whether the language of the instruction to be presented to the jury should be thatMorus would have lived "no longer than five more years" or, rather, that he would have lived"approximately five more years." The trial court concluded that the instruction on Morus' lifeexpectancy should read that he would have lived approximately five years, and stated that thisinstruction would be revisited later during the trial, "when it comes to [a] more specific [time][sic]." Before trial had begun, the court read this instruction to the jury. The cause thenproceeded to trial.

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Plaintiff presented the expert testimony of Dr. Patrick Sullivan, an internist. Dr. Sullivanopined that defendant breached the standard of care in clearing Morus for surgery, in performingthe surgery and in his conduct after the surgery was completed. Dr. Sullivan stated that thesebreaches were a "contributing and proximate cause" of Morus' death the day after surgery.

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Dr. Sullivan testified as to his opinion with respect to Morus' life expectancy. Whenasked how long Morus would have lived had the surgery not been performed on June 30, 1995,Dr. Sullivan responded "I believe probably five years." Dr. Sullivan stated that the basis for hisopinion was "[j]ust a general survival of patients like [Morus] with the diseases he had." Dr.Sullivan was also asked whether the fact that Morus had a living will indicating he had no desireto be put on dialysis or other life-saving treatments impacted his opinion. Dr. Sullivan stated thatthis fact "didn't really enter into it."

At the close of plaintiff's case in chief, defendant moved for a directed verdict, assertingthat plaintiff did not present sufficient evidence to show that any one of her four theories ofnegligence was the proximate cause of Morus' death. The trial court denied defendant's motion.

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Dr. Robert Caplan was called by codefendant Dr. Ann Brennan as an expert witness andhis evidence deposition was entered into the record at trial. Dr. Caplan reviewed the depositionsof several doctors in this cause, as well as Morus' autopsy report and his medical records. Dr.Caplan provided opinion testimony with respect to Morus' medical condition, the effects ofaspirin, and Morus' life expectancy.

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With respect to Morus' life expectancy, Dr. Caplan opined that the surgery Morusunderwent was not an emergency procedure, and it was "more likely than not [Morus] would nothave died the next day" if the surgery had not been performed. Dr. Caplan testified that "[g]iventhe severity of his underlying disease states, [Morus'] life expectancy would be reduced, belowthat of an individual who did not have these disease states, and, as a rough estimate, another fiveyears might be a reasonable projection."

In addition to these expert witnesses, several members of Morus' family testified at trial,including plaintiff and Morus' children. They stated that in accordance with his living will,Morus had expressed to them that he did not want to be connected to machines necessary to keephim alive, such as a ventilator. They also testified that Morus had expressed that he did not wantto undergo dialysis, even if this was necessary to his survival.

At the close of the testimony in this cause, the trial court again read the jury instructionsto the jury, including the following with respect to Morus' life expectancy:

"If you find for the Plaintiff, Joan Morus[,] *** under the Wrongful Death Count, then in assessing damages, you may consider how long Frank Morus was likely to have lived. The evidence shows that Frank Morus was likely to have lived approximately five years from the date of his death."

The jury returned a general verdict in favor of plaintiff and against defendant in the totalamount of $1.5 million. Defendant did not present the jury with any special interrogatories todetermine on which of the four bases of negligence asserted by plaintiff the jury found defendantto have been negligent. The jury's award was itemized as follows: $250,000 on the survivalcount ($250,000 for pain and suffering Morus experienced as a result of the injury, $0 for thereasonable expense of necessary medical care, and $0 for the reasonable expense of the funeraland burial); and $1,250,000 on the wrongful death count.

ANALYSIS

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A. Breaches of the Standard of Care and Proximate Cause

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B. Expert Testimony and Rule 213

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C. Jury Instruction on Life Expectancy

Defendant's third contention on appeal is that the trial court erred in instructing the jurywith respect to Morus' life expectancy. The instruction given by the trial court now at issue inthis cause was a modified version of Illinois Pattern Jury Instruction (IPI) 31.13 (IPI Civil (2000)No. 31.13), and stated the following:

"If you find for the Plaintiff, Joan Morus[,] *** under the Wrongful Death Count, then in assessing damages, you may consider how long Frank Morus was likely to have lived. The evidence shows that Frank Morus was likely to have lived approximately five years from the date of his death."

Defendant claims that the evidence presented at trial was in conflict as to what Morus' lifeexpectancy was likely to be and, therefore, did not support the instruction given by the trial courtwhich, in essence, directed a verdict for plaintiff. In response, plaintiff asserts that defendantwaived this argument because he did not object to the instruction when it was first read to thejury by the court before trial began. Plaintiff also argues that, even if the issue were not waived,the instruction was proper because the evidence regarding life expectancy was "undisputed." Based on the record before us, we agree with plaintiff and find that the instruction as given by thetrial court regarding Morus' life expectancy was warranted.

First, with respect to plaintiff's contention of waiver, we conclude that defendant did notwaive this issue for review. A party waives its right to challenge a jury instruction that was givenat trial when it fails to make a specific objection to the instruction during the jury instructionconference and fails to tender a remedial instruction to the trial court. See Deal v. Byford, 127Ill. 2d 192, 202-03 (1989) (party challenging instruction must specify defect and submitinstruction that states the law for which he argues on appeal); accord Branum v. SlezakConstruction Co., 289 Ill. App. 3d 948, 956-57 (1997). This timely objection and submission areto assist the trial court by affording it the opportunity to correct the defective instruction, and toprohibit the challenging party from gaining an advantage by obtaining a reversal based on hisown failure to act. See Dean v. Keith's & Ralph's Tavern, Inc., 25 Ill. App. 3d 970, 972 (1975).

The record in the instant case demonstrates that defendant did not waive his right tochallenge the life expectancy instruction given by the trial court. It is clear that this instructionwas a central topic of debate among the parties and the trial court at several junctures throughoutthe trial process. The first time life expectancy was discussed was during a hearing on plaintiff'smotion in limine, during which plaintiff asked the court to preclude any opinions concerningMorus' life expectancy other than the opinion that he would not have been expected to live morethan an additional five years from the date of his death. The court granted plaintiff's motion, butonly upon two caveats: (1) that an opinion that Morus would have lived a shorter time, forexample, 4 years and 11 months, was close enough to "not more than 5 years" and would beallowed into evidence; and (2) that defendant would be allowed to cross-examine Dr. Sullivan,the only witness present at trial who would be testifying as to life expectancy, with respect to hispreviously disclosed opinion that Morus would have lived approximately five more years. Then,after this hearing, the first of two jury instruction conferences in the instant case took place,before trial had even begun. As the parties discussed what instruction should be given as toMorus' life expectancy, the trial court stated that it should read that Morus was "likely to havelived approximately five years from the date of his death." Noting that there was a dispute,codefendant Debre's counsel responded "[m]aybe we should just not say anything about the yearsuntil the end of the case." The court then stated, "[p]ut down approximately five years. I don'tknow how that hurts. We'll change it when it comes to [a] more specific [time] [sic]." With thisstatement, the court informed the parties that the life expectancy instruction would be revisitedbefore it would be given at the close of evidence. The court then gave this instruction to the jurybefore opening statements.

At the end of trial but before the jury was charged, a second instruction conference washeld. Defendant specifically objected to the life expectancy instruction, noting that the evidenceelicited at trial that Morus would have lived approximately five years was now in conflict, sincetestimony revealed that Morus was suffering from renal failure and had declared that he wouldnot undergo dialysis. Defendant also submitted an instruction to the court on this issue, retainingthe first sentence of the instruction the trial court fashioned during the first conference, butomitting the second sentence that stated that Morus was likely to have lived approximately fiveyears. The trial court refused defendant's instruction and acknowledged that it would beinstructing the jury with respect to a life expectancy of five years over defendant's objection.

Based on these circumstances as found in the record, we conclude that defendantpreserved this issue for review. Defendant both specifically objected to the jury instruction at thesecond jury instruction conference and tendered a replacement instruction to the trial court. SeeDeal, 127 Ill. 2d at 202-03; Branum, 289 Ill. App. 3d at 956-57. The trial court was not deprivedof an opportunity to correct the instruction, nor did defendant fail to act, thereby resulting in anadvantage to him. See Dean, 25 Ill. App. 3d at 972.

Plaintiff's argument that defendant was required to object to the instruction during thefirst jury conference before trial had begun, rather than the second conference which occurredafter all the evidence was admitted, is unconvincing based on the circumstances of the instantcase. Plaintiff does not present any law to the effect that there is a requirement to object at such apreliminary stage in the trial process. The trial court stated during plaintiff's motion in liminethat the experts' opinion that Morus would have lived five years would be subject to cross-examination during trial. Later, at the first conference, codefendant's attorney, though perhapsnot officially objecting, did raise a reservation as to the instruction with the trial court. It was atthis juncture that the court told the parties that the issue would be revisited later, when it became"more specific" to the cause at hand and after Dr. Sullivan had been cross-examined as to hisopinion on life expectancy. Thus, the court acknowledged that a new life expectancy instructionmay be necessary and would be dealt with later, at the close of evidence. It could reasonably beconcluded, then, that the court lulled defendant into believing that another conference would beheld at the close of evidence which would afford the parties a chance to again debate the lifeexpectancy instruction. This is in fact what occurred, and upon defendant's objection and tenderof a substitute instruction, we find no reason to conclude that the issue is waived on appealsimply because defendant waited to officially raise his objection until the promised second juryconference.

Even if technically defendant did not properly preserve this issue for review, wenonetheless choose to address it here. The circumstances and sequence of events surrounding thefashioning of the jury instruction in this case are unique, especially since the trial court decidedto give the instruction before any evidence was presented and then held a second instructionconference after the close of evidence. This warrants our review of this issue despite anytechnical waiver that may have occurred. See Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002) (waiver rule is concept of administrative convenience only and does not limitjurisdiction of reviewing court, which may deem its responsibility to address certain issues tooverride such technical requirements). However, while we address this issue on its merits, wenonetheless find that it does not compel reversal for the reasons discussed below.

The determination of whether to give a specific jury instruction is within the trial court'sdiscretion, and we will not disturb that determination unless there was an abuse of that discretion. See Trimble v. Olympic Tavern, Inc., 239 Ill. App. 3d 393, 401 (1993); Thompson v. MCADistributing, Music Corp. of America, 257 Ill. App. 3d 988, 991 (1994). The standard fordetermining whether such abuse occurred is whether the instructions given fairly stated the lawwithout having prejudiced a party and depriving him of a fair trial. See Dillon, 199 Ill. 2d at 505,507. We will not order a reversal on the basis of an error in instructing the jury unless that errorwas of such magnitude as to mislead the jury. See Solich v. George & Anna Portes CancerPrevention Center of Chicago, Inc., 273 Ill. App. 3d 977, 988 (1995).

It is true that testimony offered by expert witnesses is to be judged by the same rules ofweight and credibility applied to other witnesses, which are questions of fact for a jury. SeeCannell v. State Farm Fire & Casualty Co., 25 Ill. App. 3d 907, 912 (1975). However, while ajury is free to disregard an expert's opinion or conclusion of fact on the basis of credibilityconsiderations, it cannot disregard expert testimony when this testimony pertains to medicalissues "beyond the understanding of a layperson." Piano v. Davison, 157 Ill. App. 3d 649, 675(1987) (jury is generally "not bound" to accept expert opinion on issue, but must do so whenissue requires expert testimony, such as in medical malpractice cases); see Turney v. Ford MotorCo., 94 Ill. App. 3d 678, 685 (1981). Thus, when an issue is presented in a cause of action forwhich the jury is not equipped to draw any conclusion without the assistance of expert testimony,the jury cannot "reasonably come to a conclusion different than that" of the expert, therebyignoring the expert's conclusion and instead employing its own independent interpretation of theevidence to reach an ultimate conclusion on this issue. O'Keefe v. Greenwald, 214 Ill. App. 3d926, 936 (1991) (issue of causation of the plaintiff's injuries required expert testimony as it wasbeyond understanding of jury; thus, jury could not disregard concurring expert opinions of sevendoctors who testified on medical causation issue nor could jury "reasonably come to a conclusiondifferent than" this expert testimony); accord Piano, 157 Ill. App. 3d at 675 (jury could notdisregard expert witness's conclusion because medical issue in cause, which involvedinterpretation of X ray and CT scan, was beyond jury's understanding); see, e.g., Gauthier v.Westfall, 266 Ill. App. 3d 213, 220-21 (1994) (patient's prognosis requires need for experttestimony and is outside realm of lay witness's competency); Mazzone v. Holmes, 197 Ill. App.3d 886, 899 (1990) (issues involving patient post-operative care requires expert testimony);Weekly v. Solomon, 156 Ill. App. 3d 1011, 1017 (1987) (expert testimony, and consideration byjury thereof, is required with respect to issues of pre-operative care).

Here, the trial court's instruction with respect to life expectancy was warranted and not inerror. It would not have been reasonable for the jury in the instant case to have refused toconsider the medical expert testimony that Morus would probably live five more years in light ofthe unique circumstances presented. See O'Keefe, 214 Ill. App. 3d at 936. Two witnessesprovided a specific prognosis for Morus' life expectancy, an issue which required experttestimony because it was beyond the jury's understanding to determine how long Morus wouldhave lived. These witnesses were Dr. Sullivan, who was plaintiff's expert, and Dr. Caplan, whowas an expert for the defense. Although testifying for opposing parties, these experts came to thesame conclusion, namely, that Morus was likely to have lived five years. Because these expertsprovided necessary testimony on an issue for which the jury was not equipped to use its owninterpretation, and because the experts' testimony converged to reach the same conclusion, wefail to see how the jury could reasonably have disregarded or abandoned the expert opinion thatMorus was likely to have lived five years. See O'Keefe, 214 Ill. App. 3d at 936. Therefore, thetrial court's instruction to the jury reiterating this expert testimony was not an abuse of discretionbut, rather, was warranted under the circumstances of the instant case.

Defendant cites Northern Trust Co. v. County of Cook, 135 Ill. App. 3d 329 (1985), andGoodman v. Terminal R.R. Ass'n of St. Louis, 68 Ill. App. 2d 80 (1966), along with IPI 31.13,for the proposition that jury instructions on life expectancy that are conclusive are improper anderroneous because they do not permit the jury to exercise their own "experience in the affairs oflife" as the law requires. Northern Trust Co., 135 Ill. App. 3d at 333; Goodman, 68 Ill. App. 3dat 95 ("[t]o require a jury to accept and be bound by a doctor's prediction of expectancy woulddeprive them of consideration of their own observation and experience with reference to suchpredictions"); IPI, Civil (2000) No. 31.13. However, each of those cases, as well as the patterninstruction, involves life expectancy evidence given in the form of mortality tables, whichprovide only general statistical averages without focusing on the individual subject to whom thattable is alleged to apply. Neither case, nor the pattern instruction, includes a situation where, ashere, the medical expert testimony converged and provided a specific prognosis based on theparticular circumstances of the person whose life expectancy was at issue. On this basis, thecases cited by defendant are inapplicable, and we find no error on the part of the trial court ingiving the life expectancy instruction now challenged on appeal.

Alternatively, even were we to conclude that the trial court did err in giving thechallenged instruction to the jury, a conclusion to which we do not subscribe, we find, based onthe record, that such error would have been harmless. See Nilsson v. NBD Bank of Illinois, 313Ill. App. 3d 751, 762 (1999) (court's decision whether to give jury instruction is subject toharmless error analysis). The instruction stating that the evidence showed that Morus was likelyto have lived approximately five years after his death which the court gave at the end of trial hadalready been read to the jury earlier, at the beginning of this cause before opening argument. Also, defendant never submitted a proposed instruction to counter this five-year life expectancyestimate. It is true that defendant tendered a different instruction during the second juryconference, along with his objection. However, that proposed instruction merely reiterated thefirst sentence of the instruction given, stating only that the jury "could consider how long FrankMorus was likely to have lived," and omitted the second sentence referring to the convergingmedical expert testimony that was presented. This proposed instruction would not have beenappropriate because it omitted the five-year basis as agreed by the expert testimony at trialwithout providing any other definite number which was grounded in presented evidence. Aspreviously discussed, Morus' life expectancy was an issue beyond the understanding of the juryand required a medical basis couched in expert testimony. Thus, it would not have been properto leave the jury with nothing but its own interpretation to decide this issue. See O'Keefe, 214 Ill.App. 3d at 936.

Moreover, we further note that, contrary to defendant's contention, the instruction asgiven by the trial court did not preclude defendant from arguing that Morus may have lived lessthan the five-year estimate established by the expert testimony. In fact, defendant specificallyargued in his closing argument to the jury that there were other factors in evidence whichindicated that Morus would have lived less than five years. For example, defendant stated: "[b]utladies and gentlemen, no matter what happened on June 30, 1995 based on the best of allpossible prognosis of the five years, Frank Morus wouldn't be here with us today regardless, andyou can decide whether he would have passed *** earlier." Therefore, defendant was actuallypermitted to, and indeed, challenged this the five-year estimate without objection from plaintiffor interference from the trial court.

D. Compromised Verdict

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Accordingly, we affirm the decision below. The record shows that plaintiff presentedample medical expert testimony and evidence with respect to her four theories of negligence tosupport the jury's finding that one or more of defendant's breaches in the applicable standards ofcare involved in this case were a proximate cause of Morus' death. While the trial courterroneously admitted Dr. Sullivan's opinion testimony about platelet transfusions in violation ofRule 213 (177 Ill. 2d R. 213), this error was harmless in view of the particular circumstances ofthis case and did not substantially prejudice defendant. Moreover, the instruction given by thetrial court with respect to Morus' life expectancy was based on the undisputed medicalevaluations of both plaintiff's and defendants' experts as presented at trial, and thus, waswarranted. Finally, we find, based on the record, that the jury's failure to award damages forMorus' medical bills and funeral expenses did not constitute a compromise verdict.

CONCLUSION

For the foregoing reasons, we affirm the holding of the trial court.

Affirmed.

McNULTY, and O'MALLEY, J.J., concur*.

*Justice Cousins originally sat on the panel in this appeal. Upon JusticeCousins' retirement, Justice O'Malley substituted in the decision of thisappeal. She has read the briefs and listened to the tape of oral argument.

1. Defendant presents four issues on appeal, dealing with proximate cause, experttestimony, jury instructions on life expectancy and compromise verdict. Because our court isbound by administrative order of the Illinois Supreme Court limiting the length of our opinionsto 20 pages, we have chosen to publish only that portion of our original 47-page Rule 23 decisiondiscussing jury instructions on life expectancy and the pertinent facts involved therein. See 166Ill. 2d R. 23. We do so because of the dearth of published opinions that compare, as we do,instructions as to life expectancy premised upon general mortality tables and instructionspremised not upon mortality tables but on the specific medical prognosis of the life expectancy ofa specific individual based upon his or her medical condition. The complete Rule 23 decisioncan be found in the office of the clerk of this court.

2. We note that this verdict was also entered against codefendant Dr. Michael Debre. Dr.Debre appealed this decision to our court and that appeal was consolidated with the presentappeal. See Morus v. Kapusta, No. 1-01-1207 (April 17, 2002). However, Dr. Debre andplaintiff entered into a settlement, and that appeal was dismissed. We also note that the juryfound no liability as to codefendant Dr. Ann Brennan. Accordingly, our decision here pertainsonly to defendant Dr. Kapusta, as his case remains pending as a single appeal before our court.