In the medical malpractice case of Crim v. Dietrich, 2020 IL 124318 (issued on April 2, 2020), plaintiffs, the mother and father of the injured newborn baby, alleged that defendant, the doctor who delivered the baby: (1) failed to obtain the mother’s informed consent to perform a natural birth rather than a Caesarean section, despite possible risks associated with the baby’s large size; and (2) was guilty of professional negligence during the delivery, resulting in the baby’s injuries.
At the close of plaintiffs’ case during a jury trial, the trial court granted a partial directed verdict for defendant on the informed consent allegations. But the jury trial continuedlimited to the remaining professional negligence allegationsresulting in a verdict for defendant on those allegations. Plaintiffs did not file a posttrial motion on the jury’s verdict. They instead appealed the circuit court’s ruling on the partial directed verdict on the informed consent allegations. The appeal resulted in the appellate court’s reversing the directed verdict ruling and remanding the case to the circuit court "for such other proceedings as required by order of this court." Crim, at ¶ 50.
On remand, the parties disputed whether the appellate court’s mandate allowed for a trial de novo on all issues, including the allegations concerning professional negligence, which were determined by the jury. To resolve that issue, the trial court certified a question for the appellate court under Ill. S. Ct. R. 308. The certified question asked whether the appellate court’s remand required a trial de novo on all claims. On this second review, the appellate court granted the interlocutory appeal, answering the certified question in the affirmative. The supreme court then granted defendant’s petition for leave to appeal.
In its reviewwith a recently appointed justice not participating, another justice writing in special concurrence, and a third justice dissentinga four-justice majority of the supreme court first analyzed relevant supreme and appellate court decisions and the requirements of section 2-1202 of the Code of Civil Procedure (735 ILCS 5/2-1202), and it: (1) held that the appellate court’s review and reversal of the trial court’s grant of partial directed verdict on the informed consent allegations was proper without a posttrial motion, because the filing of such a motion was not necessary to preserve appellate review on that issue, for the ruling was not based on a jury’s verdict; (2) cited "sound policy reasons behind the requirement that a litigant file a post-trial motion following a jury case" (id. at ¶ 34), in holding that "[t]he plain language of the statute and case law interpreting section 2-1202, requires a litigant to file a post-trial motion in order to challenge the jury’s verdict even when the circuit court enters a partial directed verdict as to other issues in the case" (id. at ¶ 35); (3) held that the mere filing of a notice of appeal concerning a jury verdict where there had been no posttrial motion "lies in direct contradiction with the statutory requirements of section 1202" (id. at ¶ 39); and (4) held that "the proposition that, [w]hen a court of review does not determine the merits of a case but merely reverses and remands without specific directions, the judgment of the court below is entirely abrogated and the cause stands as if no trial had occurred,’" did not apply in this case because "the appellate court’s mandate could not remand the matter for a new trial on an issue never raised and not considered." Id. at ¶ 40.
Crim provides two significant takeaways. It emphatically confirms the need for a posttrial motion in civil jury trials to preserve appellate issues, as required by section 2-1202 and by precedential reviewing court decisions interpreting and applying that statute. And it emphasizes the forfeiture effect of failing to file a posttrial motion after a civil jury trial, where an appeal is taken on the trial court’s alleged error in granting summary judgment or a partial directed verdict. The consequence of not filing a posttrial motion in those instances, is that, even if the appeal is successful, any issue determined by the jury is forfeited and not subject to retrial.
Crim did not address whether the appellate court’s reversal of the trial court’s partial directed verdict was proper. Its significance is in its holding that, because the directed verdict occurred by virtue of the trial court’s ruling and not a jury determination, the informed consent issue was properly appealed and properly remanded for trial. But, because of the absence of a posttrial motion, there could be no de novo trial on the professional negligence issues determined by the jury. In sum, although on remand defendant could be tried on the informed consent issues, plaintiffs had forfeited the opportunity to pursue on remand the retrial of their claims related to defendant’s alleged professional negligence during the delivery of the baby.