Find Legal Information

PRESIDING JUSTICE MAAG delivered the opinion of the court:

Mary E. Baker (plaintiff) filed an action against Bradley R. Hutson (defendant)alleging that she suffered personal injuries arising from an automobile accident caused bydefendant's negligent operation of his motor vehicle. Defendant admitted negligence andthe case proceeded to a trial on damages. At the close of the evidence, the circuit court ofJackson County directed a verdict in favor of plaintiff on the issues of causation and pastmedical expenses, and it assessed $8,632.90 as the reasonable expenses for necessarymedical care. The remaining elements of damage were submitted to the jury, which assessedan additional $42,000 in damages for future medical care, lost earnings, pain and suffering,and disability. On appeal, defendant claims that the trial court erred in granting a directedverdict on the issues of causation and past medical expenses and in giving a jury instructionand a verdict form that combined "disability" and "loss of a normal life" as an element ofdamages.

The cause arises from a motor vehicle accident that occurred on January 23, 1996. Defendant's negligence was not disputed. During the trial, defendant testified that he failedto stop at a red light at an intersection in Carbondale, Illinois. Defendant stated that hisvehicle struck the passenger side of plaintiff's vehicle.

Plaintiff was transported by ambulance to Carbondale Memorial Hospital. She wasexamined by Dr. Sharon Pelton, an emergency room physician. Following an extensiveevaluation, plaintiff was released. Plaintiff, then a student at Southern Illinois Universityat Carbondale, was instructed to return to the emergency room immediately if her symptomsworsened. She was also instructed to return to the emergency room or to go to the SouthernIllinois University (SIU) clinic in a few days for a precautionary follow-up evaluation. Plaintiff testified that she did not remember the accident and had a limited recollection ofbeing treated in the emergency room. She testified that she did not recall receiving anyinstructions to return for a follow-up evaluation.

Within a few days of the accident, plaintiff hired the Womick law firm to representher. A member of the firm referred plaintiff to a chiropractor, Dr. Brian Woodard. Plaintiffsaw Dr. Woodard on a regular basis for four or five months. She was released in June 1996without restrictions. Plaintiff had no treatment from mid-June 1996 through the spring of1997. Plaintiff testified that her symptoms began to increase in May 1997. She complainedof headaches and stiffness and soreness in the neck and upper back region. Because of theworsening of symptoms, she began to treat three times per week with Dr. Stephen Zasadny,a chiropractor who had treated her parents. At the time of the trial, plaintiff was treatingwith Dr. Zasadny about once every six weeks for maintenance and to quell her symptoms. Plaintiff testified that the treatment temporarily alleviates the headache and the neckstiffness. She stated that the discomfort returns within four to six weeks after a treatment. Plaintiff also stated that the soreness in her neck and the headaches worsen when she is moreactive. Plaintiff testified that she was evaluated in March 2001 by Dr. David Birnbaum, afamily practitioner in Chicago, Illinois, at her lawyer's direction. After the evaluation, Dr.Birnbaum prescribed a muscle relaxer. Plaintiff testified that the medication seemed toreduce the severity of the symptoms.

At the time of the trial, plaintiff was receiving periodic chiropractic treatment andtaking the medication to control her symptoms. Plaintiff testified that she continues to workand to carry on her usual activities, but she noted that she does not have the flexibility andmovement that she had before the accident. She stated that she limits her lifting and otherstrenuous activities to avoid aggravating her symptoms.

During cross-examination, plaintiff admitted that she did not return to the emergencyroom or visit the SIU clinic. Plaintiff stated that she retained a lawyer before she obtainedfollow-up medical care and that she was referred to Dr. Woodard by her attorneys. She alsoadmitted that during the first visit to Dr. Woodard she filled out a patient questionnaire. Inresponse to a question about the purpose of her visit, she wrote, "to find any injuries due tothe automobile accident".

The depositions of Dr. Woodard and Dr. Birnbaum were read to the jury as a part ofplaintiff's case. Dr. Woodard testified that he took X rays and examined plaintiff. Basedupon the evaluation, Dr. Woodard concluded that plaintiff had suffered soft tissue injury toher neck and upper back. He treated her with chiropractic manipulation and electricalstimulation therapy. A few months later, he instituted a rehabilitative program in additionto the ongoing chiropractic treatments. The rehabilitation was designed to strengthen theinjured muscles. Dr. Woodard released plaintiff in June 1996 with a favorable prognosis. Dr. Woodard testified that plaintiff was "95% improved", but he expected that she wouldhave periodic exacerbations of her symptoms. During cross-examination, defendantquestioned Dr. Woodard about the necessity of obtaining additional X rays, given thatplaintiff had been X-rayed days earlier in the emergency room. Defendant also questionedthe number and the nature of the treatments provided to plaintiff. Defendant established thatplaintiff was referred to Dr. Woodard by her lawyer and that plaintiff had completed a new-patient questionnaire in which she wrote that the purpose of her first visit was "to find anyinjuries due to the automobile accident".

Dr. David Birnbaum, a physician specializing in family practice in Chicago, testifiedthat he first saw plaintiff on March 6, 2001. At that time, plaintiff complained of neck andupper back pain. Dr. Birnbaum stated that when he examined plaintiff, he noted musclespasm in her neck and shoulders. He diagnosed fibrositis and recommended that plaintiffuse ice packs and take a prescription muscle relaxer. He advised her to refrain fromactivities that seemed to cause a flare-up in her symptoms. Dr. Birnbaum opined thatplaintiff's condition was caused by the 1996 auto accident. He based his opinion on thehistory given by plaintiff. Dr. Birnbaum testified that he expected that plaintiff's symptomswould "wax and wane" and that she would require treatment for the condition throughouther life. He also stated that as a result of the injury she was at risk to develop arthritis at anearlier age. Dr. Birnbaum testified that in terms of future treatment, the symptoms could beminimized and the periodic flare-ups controlled with medication and chiropractic treatmentsas needed. During cross-examination, Dr. Birnbaum testified that he first examined plaintiffmore than five years after the accident. He stated that his opinion that plaintiff's symptomsresulted from the accident was based on the history given by plaintiff. Dr. Birnbaum alsotestified that he did not restrict plaintiff from performing any of her normal activities. During cross-examination, defendant established that plaintiff's lawyer referred plaintiff toDr. Birnbaum and that Dr. Birnbaum had reviewed cases for plaintiff's lawyer in the past.

The defense presented the deposition of Dr. Sharon Pelton, a board-certified,emergency room physician. Dr. Pelton testified that she evaluated plaintiff on January 23,1996. At that time, plaintiff gave a history indicating that she had been in a car accident thatday and that her car had been hit on the passenger side. Plaintiff denied hitting her head anddenied a loss of consciousness. Dr. Pelton stated that the paramedics who had respondedto the accident reported that plaintiff was a little disoriented at the scene, that she did notremember the accident, and that she complained of a headache and pain in her right knee. The emergency room nurse also reported that plaintiff complained of a headache and hadtrouble remembering the accident. Dr. Pelton examined plaintiff and noted mild tendernesson the right side of the neck. She ordered X rays to rule out damage to the cervical spine. The initial X ray showed a "little lack of normal curvature" in the cervical spine. Subsequentflexion and extension X rays ruled out damage to the spine and ligaments. The neurologicalexamination was normal. Dr. Pelton attributed the abnormal curvature found on the initialX ray to muscle spasm. Dr. Pelton discharged plaintiff with instructions to take off fromwork or school for two days. Dr. Pelton directed plaintiff to stay with a responsible adultwho could check on her during the evening and throughout the night. Dr. Pelton explainedthat she gave this precautionary instruction because of the reports that plaintiff could not remember the accident. Dr. Pelton also instructed plaintiff to follow up in the emergencyroom or in the SIU clinic in a few days as a precautionary measure and to return to theemergency room immediately if her headache worsened or other symptoms developed. Plaintiff did not return to the emergency room. Dr. Pelton testified that the prognosis uponplaintiff's discharge was very good. Based upon the results of the examination, Dr. Peltondid not think that plaintiff had sustained any permanent injuries. On cross-examination, Dr.Pelton stated that based upon the X rays she ruled out damage to the bones and ligamentstructures in the neck. She testified that based upon X ray results she could not rule outinjury to muscle tissue.

At the close of the evidence, the trial court informed the jury that it had directed averdict in favor of plaintiff on two disputed issues-causation and past medical expenses. The trial court indicated that it had awarded all of plaintiff's medical expenses, a total of$8,632.90, and the court instructed the jury to consider the remaining elements of damage. The jury was given an itemized verdict form. The number "$8,632.90" was typed on the linecorresponding to past medical bills and expenses. The jury assessed an additional $42,000in damages for future medical care, lost earnings, pain and suffering, and disability. Ajudgment was entered for plaintiff in the sum of $50,632.90.

Before turning to the issues raised in this appeal, we pause to address another matter. In ruling on plaintiff's motion for a directed verdict on causation and past medical expenses,the trial court relied on a recent unpublished order issued by this court pursuant to IllinoisSupreme Court Rule 23 (166 Ill. 2d R. 23). Rule 23(e) expressly provides, "An unpublishedorder of the court is not precedential ***." 166 Ill. 2d R. 23(e). We recognize that certainindividuals in the Illinois legal community advocate allowing unpublished Rule 23 ordersto be cited and used as some authority in support of legal arguments. See, e.g., J. Rooney,Lawyers Debate What Appeals Court Leaves Unsaid, 148 Chi. Daily L. Bull., April 27,2002, at 5; M. Reagan, Supreme Court Rule 23: The Terrain of the Debate and a ProposedRevision, 90 Ill. B.J. 180 (2002). We express no view on this subject, inasmuch as Rule 23was promulgated and adopted by the Illinois Supreme Court. In this case, the trial court'sreliance upon an unpublished order, in contravention of Rule 23, was error and should notbe repeated.

In the first issue on appeal, defendant contends that the trial court erred in directinga verdict for plaintiff on the issues of causation and past medical expenses. In addressingthis claim, we will first review the principles of law that bear upon this issue.

The propriety of a directed verdict must be judged according to the standardestablished by the Illinois Supreme Court in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14 (1967), and reaffirmed in Maple v. Gustafson, 151 Ill.2d 445, 603 N.E.2d 508 (1992). A verdict should be directed only in those cases in whichall of the evidence, when viewed in a light most favorable to the opponent, sooverwhelmingly favors the movant that no contrary verdict based on that evidence couldever stand. Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14. A trial court has no right toenter a directed verdict if any evidence, together with reasonable inferences to be drawntherefrom, demonstrates a substantial factual dispute or if the assessment of the credibilityof the witnesses or the determination regarding conflicting evidence is decisive to theoutcome. Maple, 151 Ill. 2d at 453-54, 603 N.E.2d at 512.

The Pedrick standard does not require that a verdict be directed merely because thedefendant has not introduced evidence in his or her own behalf or has failed to dispute factspresented by the plaintiff. See Galarza v. Melter, 116 Ill. App. 2d 173, 178, 253 N.E.2d469, 471 (1969). Where there is no dispute regarding the facts in evidence but wheredifferent inferences may legitimately be drawn from those facts, the question is one for thejury and a verdict should not be directed. See Galarza, 116 Ill. App. 2d at 178, 253 N.E.2dat 471; Hirn v. Edgewater Hospital, 86 Ill. App. 3d 939, 946, 408 N.E.2d 970, 976 (1980)(and cases cited).

The long-standing rule is that positive direct testimony may be contradicted anddiscredited by adverse testimony, circumstantial evidence, discrepancies, omissions, or theinherent improbability of the testimony itself. See Pasquale v. Speed Products Engineering,166 Ill. 2d 337, 354, 654 N.E.2d 1365, 1375 (1995); Lobravico v. Checker Taxi Co., 84 Ill.App. 2d 20, 27, 228 N.E.2d 196, 200 (1967). The fact finder is not bound to believe awitness when, based upon all of the other evidence or the inherent improbability orcontradictions in the testimony, the fact finder is satisfied of the falsity of the testimony. SeeLarson v. Glos, 235 Ill. 584, 587, 85 N.E. 926, 927 (1908). However, the fact finder maynot arbitrarily or capriciously reject unimpeached testimony. Larson, 235 Ill. at 587, 85 N.E.at 927. Where the testimony of a witness is neither contradicted by direct adverse testimonyor by circumstances nor inherently improbable and the witness has not been impeached, thetestimony cannot be disregarded by the fact finder. People ex rel. Brown v. Baker, 88 Ill.2d 81, 85, 430 N.E.2d 1126, 1127 (1981).

In Illinois, the question of damages is peculiarly one of fact for the jury. Flynn v.Vancil, 41 Ill. 2d 236, 240, 242 N.E.2d 237, 240 (1968). The rules regarding theadmissibility of evidence of medical expenses and the burden of proving medical expensesare well established. In order to recover for medical expenses, the plaintiff must prove thathe or she has paid or become liable to pay a medical bill, that he or she necessarily incurredthe medical expenses because of injuries resulting from the defendant's negligence, and thatthe charges were reasonable for services of that nature. See North Chicago Street Ry. Co.v. Cotton, 140 Ill. 486, 498, 29 N.E. 899, 902 (1892); Wicks v. Cuneo-Henneberry Co., 319Ill. 344, 349, 150 N.E. 276, 279 (1925).

When evidence is admitted, through testimony or otherwise, that a medical bill wasfor treatment rendered and that the bill has been paid, the bill is prima facie reasonable. Flynn v. Cusentino, 59 Ill. App. 3d 262, 266, 375 N.E.2d 433, 436 (1978). A party seekingthe admission into evidence of a bill that has not been paid can establish reasonableness byintroducing the testimony of a person having knowledge of the services rendered and theusual and customary charges for such services. Once the witness is shown to possess therequisite knowledge, the reasonableness requirement necessary for admission is satisfied ifthe witness testifies that the bills are fair and reasonable. Diaz v. Chicago Transit Authority,174 Ill. App. 3d 396, 528 N.E.2d 398 (1988).

The prima facie reasonableness of a paid bill can be traced to the enduring principlethat the free and voluntarily payment of a charge for a service by a consumer is presumptiveevidence of the reasonable or fair market value of that service. See Wicks, 319 Ill. at 349,150 N.E. at 279; Lanquist v. City of Chicago, 200 Ill. 69, 73-74, 65 N.E. 681, 683 (1902).The premise is that a consumer will not willingly pay an unreasonable or unusual charge fora service. When a bill has been paid, there is little reason to suspect that the charge iscollusive or speculative. The defendant may rebut the prima facie reasonableness of amedical expense by presenting proper evidence casting suspicion upon the transaction. Itmust be emphasized that offering a paid bill or the testimony of a knowledgeable witnessthat a bill is fair and reasonable merely satisfies the requirement to prove reasonableness. The proponent must also present evidence that the charges were necessarily incurred becauseof injuries caused by the defendant's negligence. Cotton, 140 Ill. at 498-99, 29 N.E. at 902. Only then have the evidentiary requirements for admission into evidence been satisfied. Moreover, it is axiomatic that merely satisfying the minimum requirements for the admissionof a bill into evidence does not conclusively establish that the amount of the bill in itsentirety must be awarded to the plaintiff. The admission of the bill into evidence simplyallows the jury to consider whether to award none, part, or all of the bill as damages.

With these rules in mind, we must determine whether the trial court erred in directinga verdict on the issues of causation and past medical expenses. The parties have not cited,nor has our research uncovered, any published Illinois decision that has considered whethera trial court is justified in directing a verdict on the specific amount of past medical bills tobe awarded in a jury case. We have uncovered two published decisions in which theappellate court has considered whether a trial court was justified in directing a verdict onproperty damages. See Frisch Contracting Service Corp. v. Northern Illinois Gas Co., 93Ill. App. 3d 799, 807, 417 N.E.2d 1070, 1076 (1981); Collgood, Inc. v. Sands Drug Co., 5Ill. App. 3d 910, 920, 284 N.E.2d 406, 412 (1972).

In Collgood, Inc., a decision from this district, the plaintiff sought to recover forsmoke and water damage to personal property. The damage had resulted from a fire. At theclose of the evidence, the trial court directed a verdict in favor of the plaintiff on the issueof liability and on the amount of damages sustained. Collgood, Inc., 5 Ill. App. 3d at 913,284 N.E.2d at 407. On appeal, this court was asked to consider whether the amount ofdamages in property injury cases ever becomes a question of law and, if so, whether the trialcourt was justified in directing a verdict on damages. Collgood, Inc., 5 Ill. App. 3d at 920,284 N.E.2d at 412. In that case, this court indicated that the issue had not been previouslyaddressed in Illinois. This court recounted the general rule that the question of damages isordinarily one of fact for the jury, and it recognized that the discretion of the jury on anaward of damages, though wide, was not unlimited. Collgood, Inc., 5 Ill. App. 3d at 920,284 N.E.2d at 412. This court concluded, "[A]lthough the question of the amount ofdamages is ordinarily best left to the jury, where the plaintiff offers substantial credibleevidence to show the amount of his loss in damages to personal property and that evidenceis both reasonable on its face and undisputed by the defendant, the trial court may bejustified in directing a verdict ***." Collgood, Inc., 5 Ill. App. 3d at 920, 284 N.E.2d at 413. After reviewing the evidence in the record, this court determined that the directed verdicton liability and the amount of damages was proper. Collgood, Inc., 5 Ill. App. 3d at 920,284 N.E.2d at 412.

In Frisch Contracting Service Corp., the plaintiff sought to recover from twodefendants for damages to a sewer system. Frisch Contracting Service Corp., 93 Ill. App.3d at 801, 417 N.E.2d at 1072. The trial court entered a directed verdict in favor of one ofthe defendants at the close of the plaintiff's case. At the close of the evidence, the trial courtentered a directed verdict on liability and damages against the remaining defendant, and thecourt assessed the plaintiff's damages at $4,000. On appeal, the plaintiff claimed that thetrial court erred in directing a verdict for damages of $4,000, when its evidence showed thatits actual repair costs totaled more than $45,000. Frisch Contracting Service Corp., 93 Ill.App. 3d at 805, 417 N.E.2d at 1075. After reviewing the record, our colleagues in theSecond District concluded that the issue should have been submitted to the jury becausethere was a key factual issue regarding what constituted reasonable and necessary repairsand because the parties presented competent but conflicting evidence on that issue. FrischContracting Service Corp., 93 Ill. App. 3d at 807-08, 417 N.E.2d at 1076-77. In consideringthe issue, the Second District reviewed the Collgood, Inc., decision and agreed that theremay be occasions when a property damage question can be decided as a matter of law. Frisch Contracting Service Corp., 93 Ill. App. 3d at 807, 417 N.E.2d at 1076. However, thecourt urged caution and restraint by trial courts in directing verdicts on property damagequestions, because of the lack of conclusiveness of damage evidence even when no contraryevidence is offered. Frisch Contracting Service Corp., 93 Ill. App. 3d at 807, 417 N.E.2dat 1076.

We agree with the admonition of our colleagues in the Second District that a directedverdict on damages in any case should be undertaken with extreme caution and should besubject to exacting scrutiny on review due to the nature of damages evidence. See FrischContracting Service Corp., 93 Ill. App. 3d at 807, 417 N.E.2d at 1076. The fact thatevidence regarding damages in personal injury cases lacks precision is hardly a novel notion. It is difficult to quantify pain and suffering, disfigurement, and disability. An assessmentof medical expenses might also lack precision because reasonable minds can differ in regardto whether a plaintiff's complaints and condition were caused by the defendant's negligence,whether the treatment provided was necessary, and whether the charges for that treatmentwere reasonable. Jurors are instructed that they can consider, among other things, thedemeanor, bias, and interest of a witness when they assess his or her credibility and theweight to be given the testimony. See Illinois Pattern Jury Instructions, Civil, No. 2.01(2000). Jurors are also instructed to utilize their knowledge gained from their ordinaryexperiences in life to decide what facts have been proven. See Illinois Pattern JuryInstructions, Civil, No. 1.01 (2000 ed.). Depending upon their determinations aboutcredibility and their ordinary experiences in life, jurors must decide whether the plaintiff'scomplaints are exaggerated or genuine, whether certain treatment was unnecessary orjustified, or whether various charges were unreasonable or reasonable. See Giddings v.Wyman, 32 Ill. App. 2d 220, 223-24, 177 N.E.2d 641, 643 (1961). Credibility issues andcircumstances surrounding the incident or the treatment may give rise to varying inferences. Though we are not prepared to say that a directed verdict on damages in a personal injurycase could never be sustained, the number of occasions where that action would be justifiedis minute, and the case at bar is not one of them.

After reviewing the record, we have determined that the trial court erred in directinga verdict on the issues of causation and damages. Whether certain medical services werenecessary and whether plaintiff's complaints were causally related to the accident weredisputed issues. The record reveals that differing inferences could have been drawn fromthe testimony of the witnesses. A few examples, with reasonable inferences considered ina light favorable to defendant, will adequately illustrate the point. The fact that plaintiff'sattorney referred plaintiff to Dr. Woodard and to Dr. Birnbaum is undisputed. Likewise, theevidence established that plaintiff did not follow the emergency room physician'srecommendation to be reevaluated at the SIU clinic but that she did follow her lawyer'srecommendation to treat with Dr. Woodard and, later, with Dr. Birnbaum. There wasevidence that plaintiff completed a new-patient questionnaire in which she wrote that thepurpose of her visit to Dr. Woodard was "to find any injuries due to the automobileaccident". There was evidence that Dr. Woodard released plaintiff without restriction andthat when plaintiff was released, her condition was 95% improved. There was evidence thatplaintiff did not receive any treatment for her symptoms for almost a year after Dr. Woodardreleased her and that Dr. Birnbaum's initial evaluation occurred more than five years afterthe accident. There was evidence that Dr. Woodard issued a billing statement forchiropractic services and a separate statement for rehabilitative services, even though therehabilitative therapy was provided on the same date, during the same visit, and at the sameoffice location as the manipulation. There was no evidence that plaintiff's medical bills werepaid. Based upon the evidence and reasonable inferences, a jury could have concluded thatplaintiff's treating doctors were financially interested in the outcome of the case and weretherefore biased and incredible. A jury could have found that plaintiff overstated theseverity or duration of her symptoms. A jury could have discounted Dr. Birnbaum's opinionof the cause of plaintiff's condition, due to the fact that his evaluation came five years afterthe automobile accident and was based solely on plaintiff's account of her history. A jurycould have found that the emergency room physician was unbiased and had no interest inthe case and could have accepted her findings over those of the other providers.

In deciding the facts, jurors have to consider the credibility of the witnesses, thereasonable inferences from the evidence, and the surrounding circumstances in light of theirexperiences in life. In this case, based upon the evidence and reasonable inferences, a jurycould have reasonably concluded that plaintiff was not injured to the extent claimed, thatsome of the treatment she received was unwarranted or excessive, and that the charges forsome of the treatment were unreasonable. Alternatively, a jury could have reasonablyconcluded that plaintiff was injured in the accident, that her condition resulted from thecollision, that some or all of the treatment provided was necessary, and that some or all ofthe charges for the treatment were reasonable. Thus, the issues of causation and damageswere ones of fact and not of law. The trial court erred in directing a verdict on the issues ofcausation and the past medical bills. In this opinion, we have determined only that therewere disputed issues that should have been decided by the jury. None of the comments inthis decision should be construed as an indication of what facts and inferences should befound or what result should be reached on a retrial.

In his next point, defendant contends that the trial court erred in giving an instructionwhich combined disability and the loss of a normal life as an element of damages. Specifically, defendant objected to the following instruction:

"The defendant has admitted liability[;] thus you must fix the amount ofmoney which will reasonably and fairly compensate the plaintiff for any of thefollowing elements of damages proved by the evidence to have resulted from theoccurrence, taking into consideration the nature, extent[,] and duration of the injury:

a) the disability, including the loss of a normal life, experienced andreasonably certain to be experienced in the future;

b) the pain and suffering experienced and reasonably certain to be experiencedin the future as a result of the injuries;

c) the reasonable expense of necessary medical care, treatment, and servicesreceived and the present cash value of the reasonable expenses of medicalcare, treatment, and services reasonably certain to be received in the future;

d) the value of earnings lost and the present cash value of a decrease inearning capacity.

Whether any of these elements of damages has been proved by the evidenceis for you to determine."

Defendant also objected to line (a) in Verdict Form A, which allowed the jury to assessdamages for "the disability, including the loss of a normal life, experienced and reasonablycertain to be experienced in the future". Defendant argued that disability and the loss of anormal life were to be given in the alternative and not as a combined element of damages.

In response, plaintiff argued that the tendered instruction more accurately states thelaw than either of the alternatives contained in the pattern instruction. Plaintiff argued thatthe evidence established that she was disabled and incapacitated to a degree because shesuffered a physical infirmity which limited her ability to perform manual labor and that shesuffered a decrease in her enjoyment of life because she was limited in her ability to performher work and other activities which gave her pleasure and enjoyment in life. Plaintiff alsoclaimed that defendant had not been prejudiced by the instruction.

Jury instructions are to be considered as a whole, and where the jury has not beenmisled and the defendant's rights have not been prejudiced by the irregularity, the allegederrors cannot serve as a basis for reversal. Jones v. Chicago Osteopathic Hospital, 316 Ill.App. 3d 1121, 1136, 738 N.E.2d 542, 555 (2000). A reviewing court will not reverse a caseon the basis of an improper instruction unless it is able to conclude that the instructionclearly misled the jury. See King v. Clemons, 264 Ill. App. 3d 138, 143, 636 N.E.2d 1062,1066 (1994). In this case, defendant has not shown that the instruction unduly emphasizedan element of damage, misled the jury, or prejudiced his case. Nevertheless, we believe thatadditional discussion is appropriate because the issue is likely to arise upon a retrial.

Disability and the loss of a normal life have been recognized as elements ofcompensable damages. Hendrix v. Stepanek, 331 Ill. App. 3d 206, 771 N.E.2d 559 (2002);Turner v. Williams, 326 Ill. App. 3d 541, 551, 762 N.E.2d 70, 79 (2001). "Loss of a normallife" was approved as an alternative to "disability" because of concerns that the term"disability" was often misunderstood and led juries to disregard a proper element of damagesor to duplicate damages. Smith v. City of Evanston, 260 Ill. App. 3d 925, 936-38, 631N.E.2d 1269, 1277-79 (1994) (citing M. Graham, Pattern Jury Instructions: The Prospectof Over or Undercompensation in Damage Awards for Personal Injuries, 28 DePaul L. Rev.33, 50 (1978)).

The term "loss of a normal life" is a part of the Illinois Pattern Jury Instructions, Civil,No. 30.04.01 (2000) (hereinafter IPI Civil (2000) No. 30.40.01). The Notes on Usefollowing IPI Civil (2000) No. 30.04.01 state that "disability" and "loss of a normal life" arealternatives for a single element of damages. IPI Civil (2000) No. 30.40.01, Notes on Use,at 131. The Notes on Use recommend that only one of these terms be inserted in the"measure of damages" instruction. IPI Civil (2000) No. 30.40.01, Notes on Use, at 131. Inthe Comment to IPI Civil (2000) No. 30.04.01, the committee on civil jury instructionsspecifically recommends "that either 'disability' or 'loss of a normal life' be used, but notboth". IPI Civil (2000) No. 30.40.01, Comment, at 132. Whether to instruct the jury on"disability" or on "the loss of a normal life" depends on the nature of the evidence at the trialand on which term more accurately describes the damages evidence and would be lessconfusing to the jury. Turner, 326 Ill. App. 3d at 551, 762 N.E.2d at 79. "Loss of a normallife" instructions are appropriately used where the evidence suggests that the injury hasresulted in a diminished ability to engage in the avocations and activities of life, includingthe inability to pursue pleasurable aspects of life, such as recreation or hobbies. See Smith,260 Ill. App. 3d at 936, 631 N.E.2d at 1279; Turner, 326 Ill. App. 3d at 551-52, 762 N.E.2dat 79.

Pursuant to Supreme Court Rule 239(a) (134 Ill. 2d R. 239(a)), "Whenever IllinoisPattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving dueconsideration to the facts and the prevailing law, and the court determines that the juryshould be instructed on the subject, the IPI instruction shall be used, unless the courtdetermines that it does not accurately state the law." In the case at bar, there is nothing inthe record to indicate that the trial court determined that the pattern instruction did notadequately state the law. Plaintiff has not cited any reported decision that approved themodified instruction she tendered. The evidence in this record suggests that the patterninstruction is proper and that the appropriate element to be used is "loss of a normal life". However, the trial court, on remand, will ultimately determine which alternative is moreappropriate based upon the evidence. The trial court is directed to consider the proposedinstructions tendered by the parties in light of the Notes on Use and Comment to IPI Civil(2000) No. 30.04.01. The question of whether a modified instruction, such as the onesubmitted here, may be appropriate in another case is left for another day.

Accordingly, the judgment of the circuit court is reversed, and the cause is remandedfor a new trial on the issue of damages.

Reversed; cause remanded.

RARICK and KUEHN, JJ., concur.