Illinois Supreme Court Ruling Emphasizes Necessity of Post-Trial Motion in the Preservation of Trial Court Error

ABSTRACT: Parents in a medical malpractice claim alleging both a failure to obtain informed consent claim and a claim for professional negligence will get a new trial on only the informed consent claim. The parents failed to raise any trial court error with regard to the negligence verdict in any post-trial briefing and therefore forfeited their right to a retrial on that claim.

In Crim v. Dietrich, 2020 IL 124318, the Illinois Supreme Court found that in a health care liability case, the lower appellate court’s mandate remanding the case for a new trial did not include a new trial on the professional negligence claim. The plaintiffs, who filed both a professional negligence claim and a claim alleging failure to obtain informed consent, failed to file a post-trial motion after a jury verdict on the professional negligence claim. While the lower appellate court issued just a general mandate for a new trial and the appellate court later clarified that it intended that mandate to allow for a retrial of both claims, the Supreme Court held the plaintiffs forfeited their right to a retrial on the professional negligence claim. In other words, the mandate could not have included a mandate for a new trial on the professional negligence claim because the right to appeal that claim had already been lost by failure to file a post-trial motion. 

The Crims, acting on behalf of their biological son, filed a medical malpractice claim against defendant Dr. Gina Dietrich alleging two claims: (1) that she failed to obtain Mrs. Crim’s informed consent to perform a natural birth despite possible risks associated with her son’s large size; and (2) that defendant negligently delivered the baby, causing him injuries. The trial court granted defendant’s motion for directed verdict on the issue of informed consent on the basis that the plaintiffs needed, but lacked, expert testimony that a reasonable patient would have pursued a different form of treatment. Thereafter, following additional evidence, the jury returned a verdict in defendant’s favor and against plaintiffs on their remaining claim of professional negligence. The plaintiffs did not file any post-trial motions, and instead filed a timely notice of appeal. 

In their brief before the Appellate Court for the 4th District, the plaintiffs framed their appeal as a review only on whether the circuit court erred in issuing a directed verdict on the informed consent claim, expressly stating that their appeal is not based upon the verdict of the jury. The 4th District ruled that the trial judge incorrectly issued the directed verdict and granted a new trial. The appellate court entered a general mandate reversing and remanding to the circuit court for such other proceedings as required by the order of the appellate court. 

Plaintiffs claimed that this general mandate of remand and retrial entitled them to a new trial on not only the informed consent claim, but also on the professional negligence claim. According to plaintiffs, they should be allowed to retry both claims because the claims were intertwined, and the trial court tainted the rest of their case when it erroneously granted defendant a directed judgment. 

The Illinois Supreme Court, however, disagreed, stating that “the trouble with [plaintiff’s] argument is the simple fact that they never filed a post-trial motion pursuant to section 2-1202.” Section 2-1202 of the state Code of Civil Procedure requires litigants to challenge a jury’s verdict with post-trial motions even when the trial court enters a partial directed verdict as to other issues in the case. “The failure by plaintiffs to file a post-trial motion challenging the jury’s verdict deprived the circuit court of an opportunity to correct any trial court errors involving the jury’s verdict and undermined any notion of fairness to defendant on appeal.” 

Notably, this Supreme Court ruling came after the appellate court answered a certified question by saying it had intended the plaintiffs’ negligence claims to be retried when it reversed and remanded the trial court’s directed judgment. 

In a dissenting opinion, Justice Thomas Kilbride wrote that the majority’s holding confuses a party’s forfeiture of an argument with a reviewing court’s power to grant relief. He also felt that the Court should not have entertained the appeal at all because it was too case-specific and not “of general importance.” 

The case emphasizes the importance of post-trial motions in preservation of error for purposes of appeal. Prudent practitioners should raise in post-trial motions all issues which might be the basis for arguments of trial court error later.