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FOURTH DIVISION

September 28, 2001

JUSTICE BARTH delivered the opinion of the court:

BACKGROUND

The following evidence was adduced at trial. Sinclair firstvisited Berlin, an ophthalmologist, on January 14, 1988, fortreatment of a cataract in her right eye. Prior to 1988,Sinclair only needed glasses for reading. Sinclair continued tosee Berlin over the following six months. At each visit, Berlinconfirmed the existence of a cataract and suggested surgery tocorrect the problem. Sinclair's vision continued to deteriorate,and on or about August 23, 1988, Berlin performed cataractsurgery on Sinclair's right eye.

Two days after the surgery, Sinclair had a follow-up visitwith Berlin. Sinclair testified Berlin conducted only a cursoryexamination and that he did not use an indirect ophthalmoscope toexamine her retina. Berlin, however, stated he conducted athorough examination and detected no problems with Sinclair'sretina. Berlin testified he checked Sinclair's vision with aneye chart and a phoropter machine, dilated her pupils and used aslitlamp, a direct ophthalmoscope and an indirect ophthalmoscopeto examine her eye.

Sinclair had additional follow-up visits with Berlin onSeptember 1, September 8, and September 22, 1988. Again, theparties are in conflict as to what took place on those dates. Sinclair testified Berlin did not, on any of these occasions,examine her with an indirect ophthalmoscope, despite Sinclair'sspecific complaint to Berlin on September 22, 1988, that herpupil had "a point on it." Berlin's testimony was that onSeptember 22, 1988, he examined Sinclair with either a direct oran indirect ophthalmoscope and found that her retina had nodetectable problems.

On October 6, 1988, Sinclair went to see Berlin withcomplaints of severe pain in her right eye. Sinclair claimedBerlin failed to examine her with the indirect ophthalmoscope,attributed her eye pain to dryness, and prescribed an ointment toalleviate the pain. Berlin claimed on this occasion he performeda slitlamp examination.

Sinclair returned to Berlin's office on October 20, 1988, atwhich time she claimed she was experiencing "excruciating pain,"black floaters and bubbles in her right eye. Berlin insisted heexamined Sinclair with an indirect ophthalmoscope at that timeand found nothing wrong with her retina. Once more, Sinclairdenied such an examination was performed.

On October 27, 1988, Sinclair called Berlin's office withcomplaints about her right eye. Sinclair stated she told Berlinshe was in great pain and that her eyes were droopy anddischarging something "watery." According to Sinclair, Berlintold her "her eyes were fine" and that there was "no reason tocome in" for an examination. Berlin, however, testified thatSinclair denied having any symptoms that would have suggested anurgent or emerging problem. Berlin stated that Sinclair did notask for an examination but that he would have performed one ather request.

Sinclair called Berlin's office on October 28, 1988, andcomplained of pain and deteriorating vision. Berlin was workingat another office that day and was unable to see or speak toSinclair. On October 29, 1988, Berlin examined Sinclair with anindirect ophthalmoscope and determined that her retina haddetached.

Since October 29, 1988, Sinclair has undergone severalsurgeries to her right eye, performed by physicians other thanBerlin. Nonetheless, Sinclair is now legally blind in her righteye. Sinclair filed her medical malpractice action againstBerlin on March 2, 1995, alleging her loss of sight was due toBerlin's failure to timely diagnose and treat her symptoms ofretinal detachment. After a trial, the jury returned a verdictin favor of Berlin, the court entered judgment thereon andsubsequently denied Sinclair's posttrial motion. This appealfollowed.

Analysis

Sinclair asserts as error six rulings by the trial courtthat individually or in combination warrant a new trial:

(1) denial of her proposed jury instruction on the lostchance doctrine;

(2) permitting cross examination of Sinclair's expert Dr.John Fournier in violation of a trial court in limine order;

(3) improperly barring Dr. Fournier's opinion testimony;

(4) permitting Sinclair's expert, Dr. William Fagman, oncross examination to offer an opinion regarding Sinclair'spreoperative care;

(5) preventing Dr. Fournier from identifying pertinentmedical treatises during his testimony; and

(6) denying Sinclair's motion for judgment notwithstandingthe verdict.

1. Jury Instruction

Sinclair contends the trial court erred when it rejected herproposed nonpattern jury instruction on the lost chance doctrine. Sinclair alleges that because the lost chance doctrine modifiesthe definition of proximate cause, the Illinois Pattern JuryInstruction (IPI) on proximate cause that was read to the jurydid not adequately state the law. As a result, the jury waswithout proper judicial guidance as to how to treat the lostchance evidence it heard during the trial.

Whenever an IPI instruction is applicable in a civil case,the trial court, giving due consideration to the facts and theprevailing law, is required to use that instruction. Hobart v.Shin, 185 Ill. 2d 283, 294 (1998). If the IPI instruction isinadequate, an additional instruction is appropriate. Balestriv. Terminal Freight Cooperative Ass'n, 76 Ill. 2d 451, 454-55(1979). The determination of whether an instruction isapplicable and accurately states the law in a given case iswithin the trial court's discretion. Hobart, 185 Ill. 2d at 294. The trial court has considerable discretion in determining theform in which a jury instruction will be given. Hajian v. HolyFamily Hospital, 273 Ill. App. 3d 932, 937 (1995). Thedetermination of proper jury instructions lies within the sounddiscretion of the trial court, and a reviewing court will notdisturb the trial court's decision absent a clear abuse of thatdiscretion. Linn v. Damilano, 303 Ill. App. 3d 600, 606-07(1999). A reviewing court ordinarily will not reverse a trialcourt for giving faulty instructions unless they clearly misledthe jury and resulted in prejudice to the appellant. Villa v.Crown Cork & Seal Co., 202 Ill. App. 3d 1082, 1087-88 (1990).

In a medical malpractice case, the plaintiff may satisfy hisburden of proving the defendant's negligence was the proximatecause of his injury by showing that it was more probably truethan not true that the defendant's breach of duty caused theplaintiff's injury. Borowski v. Von Solbrig, 60 Ill. 2d 418, 424(1975). The plaintiff need not show a better result would havebeen obtained absent the doctor's alleged negligence in order toestablish proximate cause. Borowski, 60 Ill. 2d at 424.

The lost chance doctrine in medical malpractice actionsrefers to two types of situations: (1) where a plaintiff has beendeprived of a chance to survive or recover from a health problemdue to the medical provider's negligence, or (2) where themedical provider's negligence has either lessened theeffectiveness of plaintiff's treatment or increased plaintiff'srisk of an unfavorable outcome. Holton v. Memorial Hospital, 176Ill. 2d 95, 111 (1997). Prior to the supreme court's decision inHolton, controversy existed in the Illinois courts as to whetherthe lost chance doctrine relaxed the plaintiff's burden ofproving proximate cause (see Netto v. Goldenberg, 266 Ill. App.3d 174 (1994); Hare v. Foster G. McGaw Hospital, 192 Ill. App. 3d1031 (1989)) or if application of the lost chance doctrine wasconsistent with the traditional principles of proximate cause(see Hajian, 273 Ill. App. 3d 932; Chambers v. Rush-Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458 (1987)). Holton,176 Ill. 2d at 113.

The Holton court determined that the lost chance doctrinecomported with the traditional standard of proving causation asset forth in Borowski and that the doctrine did not relax orlower the plaintiff's burden of proof. Holton, 176 Ill. 2d at120. Holton cited with approval the decisions in Northern TrustCo. v. Louis A. Weiss Memorial Hospital, 143 Ill. App. 3d 479(1986), and Chambers, finding that those cases "reflect thecorrect application of proximate causation principles when adefendant's negligent medical care is alleged to have denied thepatient a chance for survival or recovery." Holton, 176 Ill. 2dat 116. Thus proximate cause has been established, under thetraditional standard set forth in Borowski, when the evidencepresented shows to a reasonable certainty that defendant'snegligent delay in diagnosis or treatment lessened theeffectiveness of the treatment. Holton, 176 Ill. 2d at 115-16. Holton overruled the decisions in Netto, 266 Ill. App. 3d 174,and Hare, 192 Ill. App. 3d 1031, to the extent their lost chanceanalysis conflicted with its holding. Holton, 176 Ill. 2d at118-19. It rejected those cases, such as Russel v. Subbiah, 149Ill. App. 3d 268 (1986), and Curry v. Summer, 136 Ill. App. 3d468 (1985), that held, as a matter of law, that proximate causecould not be established when a plaintiff could not prove agreater than 50% chance or recovery or survival absent thedoctor's negligence. Holton, 176 Ill. 2d at 119.

The specific issue raised by Sinclair, that the jury shouldhave been given a specific instruction on the lost chancedoctrine in light of the supreme court's holding in Holton, hasbeen addressed by this court. See Lambie v. Schneider, 305 Ill.App. 3d 421 (1999); Henry v. McKechnie, 298 Ill. App. 3d 268(1998). In both Lambie and Henry, the appellate court affirmedthe trial court's refusal to advance the plaintiffs' proposedlost chance jury instructions.

In Henry, the plaintiff's proposed lost chance instruction,identical to the proposed instruction discussed and rejected inCurry, 136 Ill. App. 3d at 480, was based on section 323(a) ofthe Restatement (Second) of Torts (Restatement (Second) of Torts