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Docket No. 91517-Agenda 22-January 2002.

DIANE DILLON, Appellee, v. EVANSTON HOSPITAL et 
al., Appellants.

JUSTICE FREEMAN delivered the opinion of the court:

Plaintiff, Diane Dillon, brought a medical malpractice actionin the circuit court of Cook County against, inter alios, EvanstonHospital (hereafter hospital) and Dr. Stephen Sener. A jury foundagainst these particular defendants and in favor of plaintiff. Theappellate court affirmed. No. 1-98-2893 (unpublished order underSupreme Court Rule 23). We allowed the hospital and Dr. Sener'spetition for leave to appeal (177 Ill. 2d R. 315(a)). We now affirmthe judgments below in part and reverse in part, and remand thecause to the trial court for a new trial solely on the issue ofdamages for the increased risk of future injury.

BACKGROUND

During the course of treatment for breast cancer, Dr. Senersurgically inserted a catheter into a vein in plaintiff's upper chestunder the clavicle. He performed the insertion on April 20, 1989.The purpose of the catheter was to provide a means to administerchemotherapy and to draw blood without repeatedly insertingneedles into plaintiff's veins. The catheter inserted into plaintiffwas approximately 16 centimeters long.

After plaintiff completed chemotherapy, the catheter ceasedto function, and on July 13, 1990, Dr. Sener removed it. However,unbeknownst to plaintiff-or Dr. Sener-the catheter was notremoved in its entirety. Rather, Dr. Sener removed only a seven-centimeter portion of the catheter. A nine-centimeter catheterfragment remained in plaintiff. She was not informed of anyabnormality despite the fact that she had a chest X ray taken at thehospital in December 1990.

In December 1991, plaintiff had a routine chest X ray taken ata different hospital. The X ray revealed that the catheter fragmenthad migrated to plaintiff's heart. The tip of the fragment isembedded in the wall of the right atrium or the right ventricle. Therest of the fragment is floating free in plaintiff's heart.

Upon learning that the fragment was in her heart, plaintiff metwith Dr. Sener. He could not recall his specific actions inremoving the catheter from plaintiff. However, he acknowledgedthat the fragment was in her heart. Based on the length of time thatthe fragment had been there, Dr. Sener recommended that plaintiffnot attempt to remove it because several risks were attendant toremoval. For example, all or part of the fragment could escape andtravel further into the heart, making retrieval more difficult, orremoval could tear the heart wall. Dr. Sener opined that it wouldbe more dangerous to attempt to remove the catheter fragmentthan it would be to leave it in place.

Plaintiff sought opinions from other physicians; all but oneagreed with Dr. Sener. Based on the majority of medical opinionshe received, plaintiff decided to leave the catheter fragment in herheart.

Plaintiff filed a complaint for medical malpractice against Dr.Sener, Dr. David Lim, who assisted in the insertion, the hospital,and the catheter's manufacturer, Davol, Inc., a division of Bard,Inc. (hereafter Davol). After the completion of pretrialproceedings, the trial court entered summary judgment in favor ofDr. Lim. Trial commenced on plaintiff's fifth amended complaint,which named as additional defendants radiologist Dr. Ronald Portand nurse Kathy Henderson.

At the close of a trial, the jury found in favor of plaintiff andagainst Dr. Sener and the hospital. However, the jury found infavor of the remaining defendants. Dr. Sener and the hospital didnot present the jury with any special interrogatories to determineon which basis the jury found defendants to have been negligent.The jury awarded plaintiff $1.5 million for past pain and suffering,$1.5 million for future pain and suffering, and $500,000 for theincreased risk of future injuries. Plaintiff had not soughtcompensation for past or future medical expenses. Dr. Sener andthe hospital appealed.

The appellate court affirmed, with one justice dissenting. No.1-98-2893 (unpublished order under Supreme Court Rule 23). Dr.Sener and the hospital appeal. Additional pertinent facts will bediscussed in the context of the issues raised in this appeal.

DISCUSSION

I. Fifth Amended Complaint: Negligent Insertion

Dr. Sener and the hospital first contend that plaintiff's fifthamended complaint was untimely.

Plaintiff filed her original complaint on July 1, 1992. CountI alleged that the hospital was negligent in (1) allowing thecatheter to be removed in a way that caused a portion to remain inplaintiff, (2) failing to advise plaintiff of the fact that a portion ofthe catheter remained in her, and (3) providing a defectivecatheter. In count II, plaintiff alleged that Dr. Sener failed toremove the catheter. Similarly, in count III, plaintiff alleged thatDr. Sener's actions in not removing the entire catheter werenegligent. Notably, the original complaint contained no allegationsagainst Dr. Sener or the hospital that the insertion of the catheterwas negligent.

Plaintiff attached to the original complaint a report of areviewing health professional. The report stated that the cause ofaction was meritorious because, inter alia, the catheter wasimproperly placed.

On April 19, 1993, plaintiff filed a second amended complaintadding a count against Dr. Lim, which alleged that he assisted inplaintiff's surgery and that he negligently inserted the catheter. OnMarch 21, 1995, the trial court granted him summary judgment.

Plaintiff continued to amend her original complaintthroughout the pretrial proceedings as discovery was beingconducted. In January 1994, Davol answered plaintiff's fourthamended complaint. Davol asserted the affirmative defense thatplaintiff's injuries were proximately caused by the intervening andsuperceding negligent acts as described in the reports of reviewinghealth professionals attached to the fourth amended complaint.One of those reports stated in part that the catheter had beenimproperly placed. On September 6, 1996, plaintiff filed answersto supplemental interrogatories regarding her expert witness, Dr.Michael Blank. Dr. Blank had a new opinion after reviewing theinterrogatory answers of Davol, which disclosed opinions criticalof the catheter's insertion. According to Dr. Blank, if Dr. Senerhad inserted the catheter in the manner Davol asserted, then Dr.Blank believed that Dr. Sener had deviated from the standard ofcare in inserting the catheter, which ultimately resulted in thecatheter's fracture. On November 6, 1996, in supplementalanswers to interrogatories, plaintiff disclosed that Dr. Blank mightopine, based on his review of the X rays, that Dr. Sener negligentlyinserted the catheter in an improper location that ultimatelyresulted in the catheter's fracture.

In May 1997, Davol disclosed that Dr. Paul Goldfarb wouldtestify to his opinion that the catheter was improperly inserted,causing it to fracture as the result of repeated compression by theclavicle as the catheter passed over the first rib.

On November 17, 1997, plaintiff moved to file her fifthamended complaint adding allegations that the catheter wasimproperly inserted. The trial court allowed plaintiff leave to filebecause the removal of the catheter was, according to the court, "acompletion of the same process" as the insertion. Plaintiff allegedas follows. Counts I and II alleged that Dr. Sener and the hospitalnegligently inspected, inserted, and removed the catheter; failed toascertain that the catheter fragment remained in plaintiff; andfailed to advise plaintiff that the fragment remained in her body.Count III alleged that Dr. Sener's actions should be considerednegligent under the theory of res ipsa loquitur. Count IV allegedthat Davol negligently designed and manufactured the catheter;count V alleged that Dr. Port failed to see the catheter fragment inthe December 1990 X ray; and count VI alleged that nurseHenderson improperly maintained the catheter after its insertionin plaintiff. Jury selection began the next day.

Dr. Sener and the hospital contend that the trial court abusedits discretion in allowing plaintiff to file her fifth amendedcomplaint, containing the allegations of negligent insertion,because it was not timely. In essence, they believe that plaintiffhad ample knowledge from the outset of the litigation that Dr.Sener inserted the catheter and improperly waited until the eve oftrial to officially allege negligence regarding the catheter'sinsertion. Plaintiff responds that Dr. Sener and the hospital cannotcomplain because plaintiff presented several theories ofnegligence, the jury returned a general verdict against them on thenegligence claim, and they failed to submit a special interrogatoryon any matter. Dr. Sener and the hospital in turn reply that we maynot consider plaintiff's defense because she did not raise it in theappellate court.

We may consider plaintiff's defense of the trial court'sjudgment. An appellee in the appellate court may raise a ground inthis court which was not presented to the appellate court in orderto sustain the judgment of the trial court, as long as there is afactual basis for it. Estate of Johnson v. Condell MemorialHospital, 119 Ill. 2d 496, 502 (1988); Hammond v. NorthAmerican Asbestos Corp., 97 Ill. 2d 195, 209 (1983).

Count I of the fifth amended complaint alleged severaltheories of negligence in addition to the theory of which Dr. Senerand the hospital complain, i.e., negligent insertion. They have notchallenged the sufficiency of the evidence on any of those othertheories. Also, the jury returned a general verdict against them onthe negligence claim. Section 2-1201(d) of the Code of CivilProcedure provides in pertinent part:

"If several grounds of recovery are pleaded in supportof the same claim, whether in the same or differentcounts, an entire verdict rendered for that claim shall notbe set aside or reversed for the reason that any ground isdefective, if one or more of the grounds is sufficient tosustain the verdict ***." 735 ILCS 5/2-1201(d) (West2000).

Because Dr. Sener and the hospital did not submit specialinterrogatories, there is no way of knowing on what theory the juryfound defendants negligent. "When there is a general verdict andmore than one theory is presented, the verdict will be upheld ifthere was sufficient evidence to sustain either theory, and thedefendant, having failed to request special interrogatories, cannotcomplain." Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987). We shall not set aside the verdict based on this contention.

II. Res Ipsa Loquitur

Dr. Sener and the hospital next contend that the trial courterred in instructing the jury on plaintiff's theory of res ipsaloquitur against Dr. Sener. As with the prior contention, plaintiffdefends the judgment by pointing to the jury verdict. The verdictform shows that the jury returned separate verdicts in favor ofplaintiff against Dr. Sener on both negligence and res ipsaloquitur. Because the evidence supports the verdict based onnegligence, we shall not set aside the verdict based on thiscontention. See Miller v. DeWitt, 37 Ill. 2d 273, 286-87 (1967);735 ILCS 5/2-1201(d) (West 2000).

III. Admission of Videotape

Dr. Sener and the hospital contend that the trial court erred inallowing the jury to view a videotape depicting a bacterialinfection in the heart that spread to the brain. The appellate courtconcluded that the trial court's ruling was not an abuse ofdiscretion.

Dr. Sener and the hospital bring this assignment of error tothis court. However, their three-paragraph argument does notcontain any authority. Supreme Court Rule 341(e)(7) provides thata litigant's brief must contain citations to the relevant authoritysupporting the argument on appeal. 188 Ill. 2d R. 341(e)(7). "Acourt of review is entitled to have the issues clearly defined and tobe cited pertinent authority. A point not argued or supported bycitation to relevant authority fails to satisfy the requirements ofRule 341(e)(7)." Canteen Corp. v. Department of Revenue, 123 Ill.2d 95, 111-12 (1988); accord Kelley v. Kelley, 317 Ill. 104, 107(1925). Although we could, in light of the violation of Rule341(e)(7), consider this matter waived, we instead will exerciseour discretion in this matter and address the issue on the meritssince we can discern the question sought to be resolved. SeePeople ex rel. Carter v. Touchette, 5 Ill. 2d 303, 305 (1955);People v. Jung, 192 Ill. 2d 1, 12-13 (2000) (Freeman, J., speciallyconcurring, joined by Miller and McMorrow, JJ.); Roberts v. DowChemical Co., 244 Ill. App. 3d 253, 256 (1993).

After reviewing the record, we hold that the trial court did notabuse its discretion by admitting the videotape as demonstrativeevidence. Dr. David Snydman, qualified and board certified ininfectious diseases, testified that the video animation would behelpful in explaining to the jury the general development ofendocarditis, a condition for which plaintiff is now at risk. Heclearly and specifically explained the relevant differences betweenthe type and location of infection depicted in the videotape and theinfection that plaintiff may suffer in the future, owing to thepresence of the catheter fragment. Further, Dr. Sener and thehospital had the right and the opportunity to cross-examine Dr.Snydman so as to assure that the videotape could not have misledor confused the jury.

IV. Exclusion of Cumulative Testimony

Dr. Sener and the hospital next contend that the trial courterred in excluding as cumulative the testimony of one of theirexperts, Dr. John Raaf. The record shows that during the court'sconsideration of motions in limine, the court discussed generallythe problem of cumulative testimony and informed counsel forboth sides that the court would not entertain cumulative medicaltestimony and would sustain objections to such testimony.

Dr. Richard Vasquez testified as an expert on behalf ofdefendants. Dr. Vasquez opined that Dr. Sener had met themedically relevant standard of care.

Dr. Sener and the hospital then called Dr. Raaf as an expert.After listening to the equivalent of approximately 20 record pagesof testimony, the trial court called a sidebar to express concernregarding Dr. Raaf's testimony. The court stated that if Dr. Raafwas about to testify regarding the medical standard of care, thenthat testimony would be cumulative. Defense counsel stated thatDr. Raaf's testimony would go to the medical standard of care.Defense counsel declined to make an offer of proof as to othermatters to which Dr. Raaf could testify. The court excused Dr.Raaf and told the jury:

"THE COURT: Folks, after talking with the lawyers, Ihave-I have determined that the last witness, Dr. Raaf, histestimony was going to be on similar topics to those wehave covered.

So I've decided it would be more efficient on use ofyour time if we move on to another topic, okay?

THE JURY: Thank you."

The appellate court found no abuse of discretion.

Initially, we note plaintiff's argument, in defense of thejudgment, that we are precluded from reviewing this contentionbecause Dr. Sener and the hospital failed to make an offer ofproof. When a trial court excludes evidence, no appealable issueremains unless a formal offer of proof is made. The failure to doso results in a waiver of the issue on appeal. The purpose of anoffer of proof is to inform the trial court, opposing counsel, and areviewing court of the nature and substance of the evidence soughtto be introduced. However, an offer of proof is not required whereit is apparent that the trial court clearly understood the nature andcharacter of the evidence sought to be introduced. People v.Peeples, 155 Ill. 2d 422, 457-58 (1993); see also In re A.M., 274Ill. App. 3d 702, 709 (1995); M. Graham, Cleary & Graham'sHandbook of Illinois Evidence