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1-01-0840

FIRST DIVISION
MAY 20, 2002

JUSTICE COUSINS delivered the opinion of the court:

Rachel Schiff filed a medical malpractice suit against Dr. Jan Fribergand Columbia Grant Hospital for alleged damages sustained following surgeryconducted on January 17, 1995. The jury awarded Schiff damages in the amountof $482,448.19, later reduced to $467,448.19, based on $15,000 previously paidin settlement by Columbia Grant Hospital. Dr. Friberg filed a posttrialmotion to set aside the jury verdict or, alternatively, grant him a new trial. That motion was denied. Dr. Friberg appeals from both the judgment entered onthe jury verdict and the order denying the posttrial motion.

The following issues are presented on appeal: (1) whether the trialcourt's admission of certain standard-of-care opinions expressed byplaintiff's expert witness, Dr. Barbara Levy, violated Illinois Supreme CourtRule 213 (177 Ill. 2d R. 213); (2) whether the trial court's admission ofcertain opinions of plaintiff's expert witness disclosed two weeks prior totrial violated Rule 213; (3) whether the trial court's evidentiary rulingsallowing the defendant, Dr. Friberg, to be impeached with his depositiontestimony and a version of the plaintiff's hospital chart were collateral andreversible error; (4) whether the trial court's denial of defendant's motionfor a directed verdict on plaintiff's informed consent count constitutesreversible error; (5) whether the trial court's denial of defendant's motionfor a directed verdict on the standard of care constitutes reversible error;(6) whether the trial court's admission of certain "speculative" opinions ofplaintiff's expert witness constitutes reversible error; (7) whether the trialcourt's responses to questions presented by the jury constitute reversibleerror; (8) whether the trial court's issuance of certain jury instructionsconstitutes reversible error; (9) whether the cumulative effect of the trialerrors prevented the jury from returning a verdict free from prejudice; and(10) whether the jury's verdict was against the manifest weight of theevidence.

BACKGROUND

In 1984, 1986, 1987, and 1990, Schiff underwent various surgicalprocedures on her reproductive organs. In October 1990, Schiff was referredto Dr. Friberg by her gynecologist. Dr. Friberg provided Schiff withfertility treatment and counseling, performed regular examinations, andtreated her irregular menstrual bleeding. Schiff saw Dr. Fribergapproximately once every two to three months between 1990 and 1995. Thevisits increased in frequency in 1994 due to the worsening of her irregularbleeding. In 1994, Schiff was 40 years old and had not been successful inbecoming pregnant.

Schiff testified at trial that during an office visit on December 29,1994, Dr. Friberg recommended that she undergo a dilatation and curettage(D&C) (a "blind" procedure in which the physician dilates the cervix andscrapes tissue from inside the uterus for pathological evaluation) andhysteroscopy procedure (a procedure that allows the physician to view theinside of the uterine cavity through a scope) to rule out a malignancy as thesource of her irregular bleeding.

She met with Dr. Friberg on January 11, 1995, and he told her "that hewanted to take a look around because it was medical and not endocrine." Hedid not say anything else about the procedures of the D&C and thehysteroscopy. She further testified that he indicated to her that " 'a couplemonths from now we'll go in and, you know, do a laparoscopy for the fertilityissue.'" She asked Dr. Friberg if he could perform both procedures at thesame time because she did not wish to take more time off from work or be underanesthesia twice. Dr. Friberg said that he could. Schiff testified thatthere was never any discussion with Dr. Friberg regarding the possibility oforgan damage or serious infections as a result of these procedures,availability of nonsurgical options, or in vitro fertilization.

She testified that on January 17, 1995, she saw Dr. Friberg as theybrought her into the operating room, but he did not go over any of the consentforms with her. After the surgery, she was "very, very sick" and in a lot ofpain. Her stomach was very distended, she felt feverish, nauseous, and was inexcruciating pain. Instead of going home, Schiff was admitted to the hospitalthat afternoon. She testified that she continually informed the nurses of herdiscomfort. On January 19, 1995, she was still very sick. She testified thatshe was not examined by Dr. Friberg on January 19, 1995.

On the morning of January 20, 1995, she was examined by Dr. Vijay Maker. Dr. Maker touched her stomach, Schiff screamed, and Dr. Maker indicated thatemergency surgery was necessary. She stated that Dr. Maker told her that shehad peritonitis and she understood that he was proposing an exploratorylaparotomy and a possible colostomy.

After the emergency surgery on January 20, 1995, she woke up in theintensive care unit of Columbia Grant Hospital with a respirator device downher throat. She was informed that a colostomy had been performed. Sheremained in the hospital until January 31, 1995. The colostomy was reversedon May 5, 1995, by Dr. David Winchester of Evanston Hospital.

On cross-examination, Schiff acknowledged signing consent forms atColumbia Grant Hospital on January 17, 1995, which indicated that she wasaware of the surgical risks such as loss of blood and infection, and ifsurgery necessitated admission, she agreed to be admitted as an inpatient.

Schiff's March 1, 1995, complaint against Dr. Friberg and Columbia GrantHospital asserted that Dr. Friberg failed to warn her of the complications ofthe surgery conducted in January 1995, failed to warn her that she was a highrisk surgical candidate, perforated her colon in two locations during thesurgical procedure, failed to inform her that he perforated the colon andfailed to refer the case to another physician in a timely manner, and thealternative count of res ipsa loquitor.

Columbia Grant Hospital filed a motion for summary judgment in September1999. That motion was denied. Schiff's second amended complaint, filed onMarch 10, 2000, alleged professional negligence, lack of informed consent, andhospital negligence.

On May 15, 2000, Schiff's attorney sent a letter to Dr. Friberg'sattorney indicating that Dr. Levy had advised him of the following supplementsto her opinions previously disclosed:

"1. The laparoscopy performed by Dr. Friberg was not justified by thedesire to investigate the source of plaintiff's pain, and there is noindication in the medical records that this was Dr. Friberg's reason forperforming the laparoscopy.

2. Dr. Friberg had a duty to obtain plaintiff's prior medicalrecords.

3. Having reviewed the pathology report of February 2, 1995, she doesnot believe that it established that both perforations observed by Dr.Maker were the result of ruptured diverticulitis, and she does notbelieve that the perforations were caused by ruptured diverticulitis. She bases this opinion on the pathology report and on Rachel's medicalhistory.

4. Even if the perforations were the result of ruptureddiverticulitis, they nevertheless occurred during, and were caused bythe procedure performed by Dr. Friberg, and caused the injuriesdescribed during her deposition.

5. Rachel's bleeding problem did not preclude Dr. Friberg fromperforming a hysterosalpingogram.

6. In vitro fertilization was a preferable method if plaintiffdesired to become pregnant, and in fact would have been more likely tohave resulted in a successful pregnancy."

Dr. Friberg filed a series of emergency motions asking the court to barcertain testimony including the "additional opinions" in the May 15, 2000,letter. A hearing was held on these motions on May 31, 2000. The courtbarred only the opinion expressed in paragraph two of the letter.

Dr. Friberg received his medical degree in 1966 and has a Ph.D. inreproductive endocrinology and immunology. He is board certified inobstetrics, gynecology, and infertility. At trial, Dr. Friberg stated that heand Schiff discussed combining the hysteroscopy, the D&C, and the laparoscopy. He was asked at trial:

"Q. Doctor, you don't have any recollection of discussing any ofthese risks that we've been talking about or any potential complicationswith Rachel Schiff prior to January 17, 1995, do you?

A. *** [M]y routine is to discuss this prior to surgery. I don'thave a specific recollection about that."

Dr. Friberg further testified that "the usual approach" to viewingorgans from different angles included using a blunt probe to move organs,having a scissors available "if something is in its way. And in thatparticular situation, you also have a YAG laser available."

Relative to Schiff's postoperative condition, counsel inquired of Dr. Friberg:

"Q. In fact, you would agree and it was known in 1995 in the medicalcommunity that if--that a bowel perforation should be suspected in allcases of continuing abdominal pain within 24 to 48 hours following alaparoscopy?

A. Correct.

Q. Another common symptoms [sic] associated with peritonitis isfever, correct?

A. Yes.

Q. You would expect to see that develop if a bowel was perforated?

A. Yes.

Q. There are other symptoms as well; correct, Doctor?

A. Yes.

Q. And it would be the case that in different patients peritonitismanifests itself in different ways at different stages in the progressof the disease, correct?

A. Yes."

Dr. Friberg further testified that on the day of surgery, he briefly sawSchiff in the recovery room. Afterwards, he left the hospital for the day. Later, he received a phone call from one of the nurses that was attending toSchiff. The nurse indicated that she was not comfortable with sending Rachelhome because she seemed to be having more pain than would normally beexpected. Counsel inquired:

"Q. You didn't--after getting the phone call from the nurse, youdidn't return to Grant Hospital to see Rachel at all on the 17th didyou, Doctor?

A. No.

Q. And the next day following surgery, that would be January 18th;correct, Doctor?

A. Yes.

Q. And, Doctor, you didn't come to see Rachel on the 18th either; didyou, Doctor?

A. I did, yes.

Q. You did?

A. Yes.

Q. When did you see her on the 18th?

A. Sometime in the afternoon."

Following an objection and sidebar, plaintiff's counsel was allowed toshow Dr. Friberg a progress note from Grant Hospital dated January 18, 1995,written and signed by resident physician Dr. Page, at Columbia Grant Hospital. Above the signature was Dr. Friberg's signature. Counsel asked:

"Q. Did you place your signature on that note when you saw RachelSchiff on January 18, 1995, at Columbia Grant Hospital, Doctor?

A. The common situation is to countersign the note.

Q. Move to strike the answer.* * *

Q. Can you answer my question, Doctor? Did you sign this note onJanuary 18th, 1995, at Columbia Grant Hospital when you were there tosee Rachel Schiff following her laparoscopy of January 17, 1995?

A. At this time I'm not absolutely sure about that."

Plaintiff's counsel proceeded to read testimony from Dr. Friberg's deposition. During deposition, counsel asked Dr. Friberg: "I'm going to--is it possible,Doctor, that you placed your signature on that note of January 18, 1995, atsome later date?" Dr. Friberg answered, "I have at this time a definiteindependent recollection of seeing Rachel Schiff and reading the note andsigning it."

Counsel showed Dr. Friberg a copy of the chart as it appeared in RachelSchiff's medical records on February 8, 1995. Plaintiff's counsel asked Dr.Friberg:

"Q. In that chart as it existed on February 8, 1995, approximatelythree weeks after January 18, 1995, is a copy of the same note thatwe've been talking about, Doctor, written by Dr. Page; correct?

A. Yes.

Q. Your signature doesn't appear on this copy of the chart that weobtained on February 8, 1995; does it, Doctor?

A. That's correct.

Q. And would you agree with me, Doctor, that you couldn't have placedyour signature on the chart when you were there to see Rachel Schiff asyou claimed on January 18, 1995; correct, Doctor?

A. Yes.

* * *

Q. When you told me in your deposition, Doctor, that you have at thistime an independent recollection of seeing Rachel Schiff and reading thenote and signing it, that wasn't the case; was it, Doctor?

MR. CURATO [defense counsel]: Objection, Your Honor. Compoundquestion.

THE COURT: Overruled[.]

BY MR. ZAIDMAN:

Q. Was it?

A. You're obviously correct."

During further cross-examination, Dr. Friberg stated that he recalledseeing Rachel Schiff on January 19, 1995. Plaintiff's counsel drew Dr.Friberg's attention to his deposition testimony in which he stated that he didnot have an independent recollection of seeing Schiff on January 19.

Dr. Friberg testified that he saw Rachel Schiff on January 20, 1995, andmade a notation in her chart when he saw her. After seeing Schiff, he calledfor Dr. Maker. Counsel asked, "[Dr. Maker] diagnosed her as havingperitonitis secondary to bowel perforations, correct?" Dr. Friberg answered,"Yes." Schiff underwent a laparotomy on January 20, 1995, which revealed twoperforations in Rachel's bowel, specifically on the sigmoid colon. Dr.Friberg stated that based on the pathology report, he believed that Rachel hada preexisting condition of inflamed diverticula (an inflamed out-pouching thatoccurs on the surface of the bowel or colon) on her sigmoid colon that mayhave ruptured during the surgery.

Plaintiff's expert, Dr. Barbara Levy, testified that she practicedobstetrics from 1983 to 1985 and has focused on gynecology since 1983. Dr.Levy was asked at trial:

"Q. Under the standard of care as we defined it, Doctor, in Januaryof 1995, should a reasonably careful gynecologist have performed alaparoscopy on Rachel Schiff for the purpose of looking at her fallopiantubes?

A. No.

Q. Tell us why not.

A. If one wanted to know what the status of her fallopian tubes were,and certainly in order to answer her question about fertility, that'sone of the questions you would want to answer.

There is an x-ray test [hysterosalpingogram], a dye test that we cando ***. That's the first step in the analysis of her fallopian tubes.

Q. Under the standard of care as we defined it, Dr. Levy, should agynecologist in 1995 have performed a laparoscopic surgery on RachelSchiff to examine the condition of her fallopian tubes as opposed toperforming a hysterosalpingogram?

A. No."

Dr. Levy testified that "[l]aparoscopic surgery carries a certain set ofrisks that are fairly unique to the kind of surgery that we're doing. *** Andthat spike can hit things we don't mean to hit. Things meaning theintestines, the large blood vessels ***." Further, "whenever you're operatingin the abdomen, there is a chance of risk to the organs that you're operatingon or around[,] *** the small intestine or large intestine can be injured andthe blood vessels can be injured." Dr. Levy testified that ahysterosalpingogram did not present the type of risks that she had describedas being associated with laparoscopic surgery.

Dr. Levy further testified that the standard of care applicable togynecologists in January 1995 required the gynecologist to advise his or herpatient regarding the risks and increased risks of laparoscopy. Counselasked, "Would a reasonably prudent patient[,] if advised of the risks thatRachel Schiff faced because of her prior surgeries and if advised of the lackof any benefit to this laparoscopic surgery as you've testified to[,] havewanted to go ahead with this procedure?" Dr. Levy answered, after anobjection by Dr. Friberg's counsel was overruled, "I don't think so."

Dr. Levy testified to a reasonable degree of medical certainty that"without surgery, [Schiff] would not have had a perforation in her colon" andaffirmed that same answer regardless of how the perforations came to be. "IfRachel Schiff had never had the laparoscopy, then she would not have had theinjury to the bowel and therefore would not have required that [colostomy]." Dr. Levy conceded that there was no way to tell with absolute certainty whatexact mechanism caused the perforations. When Dr. Levy was asked: "Do youhave an opinion, though, to a reasonable degree of medical certainty whether,in fact, the perforations were caused by Dr. Friberg's use of the variousinstruments during her laparoscopic procedure?" Dr. Levy responded, "Certainlycaused by something that happened during the laparoscopic procedure, yes." Dr. Levy stated that it was possible that the perforations found in Dr.Maker's surgery were created as a result of diverticulitis rupturing.

Dr. Levy also testified that Dr. Friberg's postoperative care for RachelSchiff "was below the standard of care." Dr. Levy opined that if Dr. Friberghad complied with the applicable standard of care postoperatively, Schiffnevertheless would have needed the colostomy surgery performed by Dr. Makerbecause "[o]nce there was injury to the colon and there was fecalcontamination within the abdomen, the standard operative course is to divertthe colon, do a colostomy, allow everything to settle down and heal becausethere is a lot of infection in there." Relative to any harm caused to Schiffby Dr. Friberg's postoperative actions, Dr. Levy testified, "certainly, thelonger an infection goes on, the more likely there is to be damage to tissues,more scar tissue, those kinds of things. That is just a time thing. Andobviously, when somebody is in a lot of pain, the longer you're in pain, themore suffering you have."

Dr. Friberg filed a motion for directed verdict on the lack-of-informed-consent claim. In oral argument, Dr. Friberg asserted that Schiff failed todemonstrate with a reasonable degree of medical certainty that there was anypuncture by an instrument or any injury by a laser and, therefore, the risk orincreased risk of injury, which Schiff asserted should have been disclosed,never materialized. The motion was denied.

The jury found in favor of Rachel Schiff and awarded her $482,448.19,which was later reduced to $467,448.19, based on a $15,000 settlement fromColumbia Grant Hospital. Dr. Friberg filed a motion to set aside the jury'sverdict and, alternatively, for a new trial.

The trial court denied Dr. Friberg's posttrial motion in a written orderon January 25, 2001. Relative to plaintiff's May 15, 2000, letter, the trialcourt wrote that while "Dr. Levy sometimes did not use the exact same words attrial that she used in her Rule 213 written disclosures or in her deposition,"the disclosures were made in the deposition. In the trial court's view, thedeposition of Dr. Levy "contained a clear opinion that a laparoscopy wasinvasive and to perform it in this case was below the standard of care."

ANALYSIS

Dr. Friberg asserts that the admission of Dr. Levy's "new" standard-of-care opinions, relative to conducting a hysterosalpingogram versus alaparoscopy expressed in the May 15, 2000, letter and at trial, violatedIllinois Supreme Court Rule 213 (177 Ill. 2d R. 213). Dr. Friberg nextasserts that Dr. Levy's statements relative to the cause of the perforationson Schiff's colon provided in the May 15, 2000, letter and her testimony attrial disclosed an opinion that was an "outright reversal of Dr. Levy'sdeposition testimony." Dr. Friberg also asserts that he suffered prejudicewhen Dr. Levy's opinion regarding in vitro fertilization was allowed at trial. Schiff responds that Dr. Levy's testimony regarding a hysterosalpingogramversus a laparoscopy was not a new opinion and was properly admitted, Dr.Levy's testimony regarding the cause of the perforations of plaintiff's bowelwas not a new opinion and was properly admitted, and the court did not err inadmitting Dr. Levy's testimony relating to in vitro fertilization. Moreover,Schiff responds that Dr. Friberg failed to object to the testimony duringtrial and the trial court did not err in admitting Dr. Levy's testimony.

Although Dr. Friberg filed a motion before trial to bar the opinionsexpressed by Dr. Levy in the May 15, 2000, letter, Dr. Friberg failed tocontemporaneously object when all three issues arose at trial. Therefore, Dr.Friberg has waived these issues for review. While there is not always a needto repeat the objection each time similar evidence is presented followingdenial of the motion in limine, one must nonetheless object the first time theevidence is introduced. Illinois State Toll Highway Authority v. HeritageStandard Bank & Trust Co., 163 Ill. 2d 498, 502, 645 N.E.2d 896 (1994). Absent the requisite objection, the right to raise the issue on appeal iswaived. Illinois State Toll Highway Authority, 163 Ill. 2d at 502. However,even were the issues not waived, based on our review of the record, weconclude that the trial court did not err.

Dr. Friberg asserts that Dr. Levy expressed a new opinion at trial thata hysterosalpingogram would produce the same result as a laparoscopy, withoutthe attendant risks. In Schiff's answer to Dr. Friberg's interrogatories, Dr.Levy concluded: "There was no medical indication for the laparoscopyperformed by Dr. Friberg. *** The procedure performed by Dr. Friberg wascontra-indicated in light of previous procedures performed on Schiff. *** Theabove matters constitute deviations from the accepted standard of care."

Dr. Levy testified during deposition that "a hysterosalpingogram willtell you that the tubes are opened or not open." "The way to analyze thosetubes at this point in time, January 1995, is to do an X-ray and see if thetubes are open, and that's a non-invasive procedure." She further stated,"[H]ysteroscopy and D. & C. is not the way I would approach it, but that's notbelow the standard of care to do that. I do think that proceeding to alaparoscopy was below the standard of care."

Finally, Dr. Levy testified at trial that "[i]f one wanted to know whatthe status of her fallopian tubes were, and certainly in order to answer herquestion about fertility," [t]here is an x-ray test, a dye test that we can do***. That's the first step in the analysis of her fallopian tubes." In heropinion, under the standard of care, a gynecologist in 1995 would not haveperformed a laparoscopic surgery on Rachel Schiff to examine the condition ofher fallopian tubes as opposed to performing a hysterosalpingogram. Courtshave consistently limited an expert's testimony to comments within the scopeof and consistent with the facts and opinions disclosed in discovery. Kotvanv. Kirk, 321 Ill. App. 3d 733, 745, 747 N.E.2d 1045 (2001). In our view, Dr.Levy's trial testimony was within the scope of her deposition testimony andthe trial court did not err.

Dr. Friberg next asserts that he was greatly prejudiced by Dr. Levy's"flip-flop" on the cause of the perforations found on Schiff's colon. In theanswer to defendant's interrogatories, Dr. Levy opined that "Rachel Schiff'scolon was perforated during the surgical procedure performed by Dr. Friberg." The following was also elicited at deposition:

"Q. ***[I]s it your opinion that the bowel perforation in RachelSchiff occurred on the 17th of January, 1995, during the surgery?

A. Yes.

Q. Is it your opinion, Doctor, that as a result of that bowelperforation that was the cause of the peritonitis suffered by RachelSchiff?

A. Yes.

Q. Would you also state that it was also the cause--that bowelperforation was also the cause that required the subsequent treatmentthat Rachel Schiff underwent, including the treatment for peritonitis,the colostomy itself, and the subsequent reversal of that colostomy?

A. Yes."

Dr. Levy also testified during deposition that she was not sure what mechanismcaused the bowel injuries, but stated that it was "[m]ost likely either thelaser, the trocar or the needle." When asked whether diverticulitis couldhave been a reason why Schiff had a hole in the bowel, Dr. Levy stated:

"I think its awfully unlikely given two perforations at opposite endsof the bowel.

* * *

It's a possibility, although as I said that's an awfully unusuallocation for diverticulum in the bowel."

Dr. Levy testified at trial, consistent with her previous opinions, thatthe perforations were "[c]ertainly caused by something that happened duringthe laparoscopic procedure." Dr. Levy also conceded at trial that there wasno way to tell with absolute certainty what exact mechanism caused theperforations. Dr. Levy's trial testimony does not constitute a new opinionviolative of Rule 213.

Dr. Friberg also claims that Dr. Levy opined at trial that he deviatedfrom the standard of care by not recognizing that in vitro fertilization wasmore likely to yield a successful pregnancy and that these statements violatedRule 213. This claim does not comport with the record. First, we note thatDr. Levy provided in the answer to defendant's interrogatories that "[t]heinformation available to Dr. Friberg revealed that it was highly unlikely thatthe laparoscopic procedure would lead to Schiff's fertility." Duringdeposition, Dr. Levy was asked:

"Q. Is it your conclusion that this woman's tubes were useless forfertility?

A. Yes.

Q. And there was nothing that could be done to fix that?

A. She could have had in vitro fertilization."

Dr. Levy also stated at deposition: "If she were interested in activelypursuing pregnancy, then the sequence of events in order to do that shouldhave been to analyze the patency of her fallopian tubes using X-ray, usingsome non-evasive [sic] mechanism, and then discuss with her alternatives,including in vitro fertilization, which really are for a 40-year-old womanwho's not conceived since her fertility surgery the only reasonable way to go. Absent looking for fertility, there was no reason to do the laparoscopy."

Dr. Levy's affirmations in the May 15, 2000, letter included: "In vitrofertilization was a preferable method if plaintiff desired to become pregnant,and in fact would have been more likely to have resulted in a successfulpregnancy."

Contrary to Dr. Friberg's assertions, Dr. Levy did not testify at trialthat Dr. Friberg deviated from the standard of care by not recognizing that invitro fertilization was more likely to yield a successful pregnancy. Dr. Levytestified at trial that "[i]n vitro fertilization *** is the thing most likelyto result in a pregnancy for her." There was no testimony that Dr. Fribergbreached the standard of care by not concluding that in vitro fertilizationwould be more likely to yield a successful pregnancy.

Dr. Friberg contends that the trial court improperly permitted Schiff'scounsel to "impeach his deposition testimony, not his trial testimony, byshowing him and the jury a 24 x 36 blow-up of the January 18, 1995[,] notefrom the incomplete chart." (Emphasis in original.) We disagree.

The trial court has discretion to allow the admission of evidence forimpeachment purposes, and a reviewing court will not disturb that decisionabsent an abuse of discretion. Kotvan, 321 Ill. App. 3d at 748. It isappropriate to test the credibility of a witness by demonstrating that on aprior occasion the witness made statements consistent with his trialtestimony. Kotvan, 321 Ill. App. 3d at 748. To be used for impeachment, awitness' prior statement must be materially inconsistent with his or her trialtestimony. Kotvan, 321 Ill. App. 3d at 748. For deposition testimony to beadmissible for impeachment, that testimony must contradict an in-courtstatement of the witness on a material matter. Preston v. Simmons, 321 Ill.App. 3d 789, 803, 747 N.E.2d 1059 (2001). Evidence offered for purposes ofcontradiction is admissible if it involves facts relative to some issue in thecase under the pleadings. Needy v. Sparks, 51 Ill. App. 3d 350, 371, 366N.E.2d 327 (1977).

Plaintiff contends that the impeachment evidence relates directly towhether defendant failed to monitor plaintiff's condition after the surgerywhich he performed on her." We agree. The jury in the instant case heardconflicting testimony and it is the jury's role to assess any conflictingevidence and to judge the witness' credibility. Van Steemburg v. GeneralAviation, Inc., 243 Ill. App. 3d 299, 329, 611 N.E.2d 1144 (1993). Dr. Friberg also contends that the trial court's denial of a directedverdict on the informed consent count constituted error. One of the threewritten motions for directed verdict submitted by defendant asserted thatthere was "no evidence that the bowel was injured by a needle, a trocar, orother instruments" and, "since neither the specific risk of injury as aconsequence of perforation by an instrument nor the 'increased risk' fromadhesions never materialized, the alleged unrevealed risk that she was at riskor 'increased risk' did not materialize and is therefore insufficient tosupport a claim for plaintiff to recover on [t]he informed consent claim." Dr. Friberg asserts that while plaintiff here established a duty to disclose arisk, she failed to establish through expert testimony, given to a reasonabledegree of medical certainty, that her injury was caused by the risk ofpuncture by surgical instrumentation.

A directed verdict is appropriate where the plaintiff has notestablished a prima facie case. Saxton v. Toole, 240 Ill. App. 3d 204, 210,608 N.E.2d 233 (1992). A directed verdict is improper where "there is anyevidence, together with reasonable inferences to be drawn therefrom,demonstrating a substantial factual dispute, or where the assessment ofcredibility of the witnesses or the determination regarding conflictingevidence is decisive to the outcome." Maple v. Gustafson, 151 Ill. 2d 445,454, 603 N.E.2d 508 (1992). The review of a grant or denial of a motion fordirected verdict is de novo. Susnis v. Radfar, 317 Ill. App. 3d 817, 825, 739N.E.2d 960 (2000).

In an informed consent action, a plaintiff must point to significantundisclosed information relating to the treatment which would have altered herdecision to undergo it. Coryell v. Smith, 274 Ill. App. 3d 543, 550, 653N.E.2d 1317 (1995). Then it is for the jury to decide if any allegedundisclosed information would have altered the plaintiff's decision. Coryell,274 Ill. App. 3d at 550. If the disclosure would not have changed thedecision of a reasonable person in the position of the plaintiff, there is nocausal connection between nondisclosure and her postoperative condition; if,however, disclosure would have caused a reasonable person in the position ofthe patient to refuse the surgery or therapy, a causal connection is shown. Guebard v. Jabaay, 117 Ill. App. 3d 1, 10, 452 N.E.2d 751 (1983).

In the instant case, plaintiff's expert, Dr. Levy, testified that therewere nonsurgical procedures available to collect the information Dr. Fribergintended to collect as to Schiff's problems. Also, the plaintiff here wasasked: "If you had been informed on January 11, 1995, that she was at inincreased risk of having organ damage as a result of the type of surgery Dr.Friberg wanted to do on January 17, 1995, would you have consented to havingthat surgery?" She answered, "No." A directed verdict should not be grantedif there is any evidence demonstrating a substantial factual dispute or wherethe credibility of witnesses is at issue. Carr v. Cook County Hospital, 323Ill. App. 3d 184, 187, 751 N.E.2d 119 (2001). Because there needed to be anassessment of the credibility of witnesses and a determination regardingconflicting evidence by the jury, the trial court did not err in denying Dr.Friberg's motion for directed verdict on the informed consent claim.

Dr. Friberg asserts that his directed verdict on the breach of standardof care count should have been granted because "Dr. Levy was not qualified toestablish the standard of care applicable to Dr. Friberg *** as plaintiff hadno expert medical testimony to establish a prima facie case of medicalnegligence ***." Dr. Friberg believes that Dr. Levy's board certification asa gynecologist, in opposition to his board certification in gynecology,reproductive endocrinology and fertility, establishes that Dr. Levy "is not alicensed member of the school of medicine in which she testified" and her"testimony did not demonstrate that she was familiar with the 'methods,procedures, and treatments' ordinarily observed by physicians in the communityrelevant to Dr. Friberg's treatment ***." We disagree.

First, Dr. Friberg failed to object to Dr. Levy's qualifications totestify as to the standard of care at trial, and, therefore the issue iswaived for purposes of appeal. Mundell v. La Pata, 263 Ill. App. 3d 28, 34,635 N.E.2d 933 (1994). Even if the issue were not waived, no error occurred. "Whether the expert is qualified to testify is not dependent on whether he isa member of the same specialty or subspecialty as the defendant but, rather,whether the allegations of negligence concern matters within his knowledge andobservation." Jones v. O'Young, 154 Ill. 2d 39, 43, 607 N.E.2d 224 (1992). In establishing a doctor's competency to testify, the proponent must show: (1) the physician is a licensed member of the school of medicine about whichhe is to testify; and (2) the physician is familiar with the methods,procedures, and treatments in either defendant physician's community or asimilar community. Kotvan, 321 Ill. App. 3d at 744. As a gynecologist whoholds certifications in gynecologic laparoscopy and gynecologic hysteroscopyfrom the Accreditation Counsel for Gynecologic Endoscopy, Dr. Levy wasqualified to testify as an expert witness in the instant case.

Dr. Friberg asserts that the trial court's refusal to bar certain"speculative and prejudicial" testimony of Dr. Levy constitutes reversibleerror. Dr. Friberg specifically contests Dr. Levy's testimony that Dr.Friberg breached the standard of care by not diagnosing the peritonitis onJanuary 19, 1995. Further, Dr. Friberg asserts that Dr. Levy's testimony asto the cause of the perforations and as to whether Dr. Friberg breached thestandard of care by lysing adhesions with the YAG laser was reversible errorsince no expert testimony was produced indicating that the YAG laser was theproximate cause of any of Schiff's injuries. Dr. Friberg also contends thatDr. Levy's testimony as to whether a reasonably prudent patient would haveconsented to the surgery was improperly admitted.

Dr. Friberg failed to object to such testimony during trial and hasactually waived this issue. Krengiel v. Lissner Corp., 250 Ill. App. 3d 288,295, 621 N.E.2d 91 (1993). However, even were the issue not waived, aphysician may testify to what might or could have caused an injury despite anyobjection that the testimony was inconclusive. Wojcik v. City of Chicago, 299Ill. App. 3d 964, 979, 702 N.E.2d 303 (1998).

Dr. Friberg posits that the trial court committed error in its responsesto jury questions. During deliberations, the jury asked the trial judgewhether Dr. Adeli was a resident or an attending physician at the time ofSchiff's surgery. During argument, Dr. Friberg asserted that the court shouldindicate that he was the on-call doctor at the hospital. Schiff preferredthat the court not respond to the inquiry. The court answered the jury'squestion by stating that there was no sworn testimony on that question. Onappeal, Dr. Friberg contends that the trial court's refusal to identify Dr.Adeli as an attending physician was in error.

The decision to draft an answer to a jury question or to abstain fromresponding is reviewed under an abuse of discretion standard. Hojek v.Harkness, 314 Ill. App. 3d 831, 834, 733 N.E.2d 356 (2000). Refusing arequest for material not in evidence does not constitute error. See People v.Bryant, 176 Ill. App. 3d 809, 813, 531 N.E.2d 849 (1988).

The jury also asked the trial court, "To find for plaintiff does itrequire a una[ni]mous vote for at least one item (of 3)?" (Emphasis inoriginal.) The jury instruction, as presented to the jury, read:

"The plaintiff claims that she was injured and sustained damage, andthat the defendant was negligent in one or more of the followingrespects:

a. He performed surgery on plaintiff which should not have beenperformed;

b. He failed to obtain plaintiff's informed consent to the surgerywhich he performed on plaintiff;

c. He failed to properly monitor plaintiff's condition after thesurgery which her performed on her.

The plaintiff further claims that one or more of the foregoing was aproximate cause of her injuries. ***"

The court returned the following response to the jury:

"You must be unanimous that the Defendant was negligent in one ormore of the respects set out in the instructions-- and the Plaintiff wasinjured-- and the negligence of the Defendant was a proximate cause ofthe injuries suffered by the Plaintiff.

Remember, you must consider the instructions as a whole, not pickingout one instruction and disregarding others." (Emphasis added.)

We hold that the trial court did not commit error in its responses tothe jury questions.

Dr. Friberg also contends that the trial court issued improper juryinstructions. On Friday, June 9, 2000, Illinois Pattern Jury Instructions,Civil, No. 105.02 (3d ed. 1995)(hereinafter IPI Civil 3d) was approved to goto the jury without objection. The record indicates that the trial judgestated that he would not accept any other proposed instructions after June 9,2000. However, on Monday, June 12, 2000, defense counsel objected to IPICivil 3d No. 105.02 and proffered a modification.

It is well settled that a party waives any objection to juryinstructions when it does not object at the jury instruction conference. Branum v. Slezak Construction Co., 289 Ill. App. 3d 948, 956-57, 682 N.E.2d1165 (1997). Here, Dr. Friberg's objection and suggested instruction were nottimely submitted and, therefore, the trial court did not err in refusingsubmission of the modified instruction.

During the instruction conference, Dr. Friberg objected to the inclusionof jury IPI Civil 3d No. 30.21, which read:

"If you decide for the plaintiff on the question of liability, youmay not deny or limit the plaintiff's right to damages resulting fromthis occurrence because any injury resulted from an aggravation of apre-existing condition or a pre-existing condition which rendered theplaintiff more susceptible to injury." (Emphasis added.)

Dr. Friberg asserts that IPI Civil 3d No. 30.21 could have influencedthe award in other elements of damage and it likely misled the jury since itwas issued despite the lack of any evidence of aggravation of a preexistingcondition. The jury, in its general verdict, awarded Rachel Schiff $1 for theaggravation of any preexisting condition.

When a general verdict is returned after the jury has considered severalissues, some of which are supported and some unsupported by evidence, theremay be a presumption that its verdict is grounded on those issues supported byevidence. Darby v. Checker Co., 6 Ill. App. 3d 188, 196, 285 N.E.2d 217(1972). A trial court's determination as to the instructions to be given tothe jury will not be disturbed absent an abuse of discretion. Dabros v. Wang,243 Ill. App. 3d 259, 267, 611 N.E.2d 1113 (1993). The test for determiningwhether the trial court abused its discretion in instructing the jury iswhether, considered as a whole, the instructions are clear enough so as to notmislead the jury and whether they fairly and accurately state the applicablelaw. Dabros, 243 Ill. App. 3d at 267.

In the instant case, Dr. Friberg testified that, based on the pathologyreport, it was possible that the diverticulitis Schiff may have had on thebowel may have ruptured during the surgery. Dr. Maker testified that he didnot see any diverticulum and speculated that if he had seen any, thediverticulitis would have been a condition preexisting his procedure and Dr.Friberg's procedure. In light of the evidence at trial and the jury's $1award, there is no indication that the instruction at issue misled the jury orinfluenced the award in other elements of damage.

Dr. Friberg asserts that he is entitled to a new trial because thecumulative weight of the trial errors made it impossible for the jury toreturn a verdict free from prejudice. We disagree. A new trial should begranted only when the opposite conclusion is clearly apparent to the reviewingcourt or the jury's findings are unreasonable, arbitrary, and not based on theevidence. Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 981, 702 N.E.2d303 (1998). The cumulative effect of trial errors, if any, did not denydefendant a fair trial.

Dr. Friberg finally contends that the jury's verdict in favor of Schiffwas against the manifest weight of the evidence. A reviewing court cannotreweigh the evidence and set aside a verdict merely because the jury couldhave drawn different inferences or conclusions, or because the court feelsother results are more reasonable. Parker v. Illinois Masonic Warren BarrPavilion, 299 Ill. App. 3d 495, 501, 701 N.E.2d 190 (1998). We cannot saythat the verdict was against the manifest weight of the evidence.

Accordingly, the holding of the trial court is affirmed.

Affirmed.

COHEN, P.J., and McNULTY, J., concur.