text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY E. McCOLLUM, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0581
    Opinion filed March 7, 1991.
    David Y. Eberspacher, of Heller, Holmes, Hefner & Eberspacher, Ltd., of Mattoon, for appellant.
    Millard Everhart, State’s Attorney, of Toledo (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Acting pursuant to section 2 — 118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1), defendant Jeffrey E. McCollum filed a motion in the circuit court of Cumberland County seeking rescission of action of the Secretary of State summarily suspending his driving privileges for a period of two years as provided for by sections 6 — 208.1(a)(3) and 11 — 501.1 of the Code (Ill. Rev. Stat. 1989, ch. 951/2, pars. 6 — 208.1(a)(3), 11 — 501.1). After an evidentiary hearing, the circuit court entered an order on July 17, 1990, denying the petition. Defendant has appealed. We modify the judgment of the circuit court (134 Ill. 2d R. 366(a)(5)) and affirm it as modified.

Section 11 — 501.1(a) of the Code provides for chemical tests for alcohol in the blood, breath or urine of persons arrested for certain motor vehicle offenses, at the request of the arresting officer. Section 11 — 501.1(c) of the Code requires the requesting officer to warn the person requested to take the test “that a refusal to submit to the test will result in the statutory summary suspension” of that person’s driving privileges. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(c).) Section 11 — 501.1(d) of the Code requires a law enforcement officer, whose request of an arrestee to take the test is refused, to notify the Secretary of State by sworn report of that refusal. Section 11— 501.1(e) directs the Secretary of State to summarily suspend the driving privileges of that arrestee for periods set forth in section 6 — 208.1 of the Code. Section 6 — 208.1(a) sets forth that the suspension for a person shall be for six months except that the suspension shall be for two years for a person who is not a first offender. Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 208.1(a).

The problem in this case arises because defendant was arrested for driving under the influence of intoxicating liquor (DUI) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501) and refused to take a breath test before the officer had time to explain to him the consequences of his refusal to take a test and, then, when the officer did explain the consequences, the undisputed evidence at the court hearing indicated the officer told defendant his refusal to take the test would result in a summary suspension of six months. Actually, defendant had a prior DUI conviction which automatically required a two-year suspension by the provisions of section 6 — 208.1(a) of the Code.

Section 2 — 118.1 of the Code sets forth a procedure by which a person notified of a summary suspension, as we have described, may request the rescission of the suspension as defendant has done here. Section 2 — 118.1(b)(3) limits the scope of the hearing on such a request to four grounds, only one of which is in question here:

“Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person’s alcohol or drug concentration ***.” Ill. Rev. Stat. 1989, ch. 95^2, par. 2-118.1(b)(3).

The only testimony at the hearing was that of the defendant. He stated he was taken by a police officer to the Cumberland County jail and then into a small office by the main office. Defendant stated the police officer and another person spent about five minutes looking for some papers when a deputy sheriff moved a cover off of a machine. According to defendant, he then stated “I don’t think I want to take that test,” immediately after which the arresting officer explained to defendant he would “lose [his] license for six months” if he refused to take the test. Defendant stated he then responded again that he “did not think [he] wanted to take the test.” Defendant maintained no other discussion took place and nobody read to him from forms concerning the consequences of his refusal to be tested. However, he did say before he left the jail he was given two tickets, a document authorizing him to continue driving temporarily and another document he gave to his wife. Apparently that document did explain defendant’s refusal of the test could cause the loss of his driving privileges for two years because defendant testified later his wife looked at the document and told him his refusal could result in a two-year suspension.

In denying defendant’s motion, the circuit court recognized defendant had not been properly warned of the severity of the consequences of the refusal to take the test but ruled that defendant had waived any such explanation by his spontaneous refusal to take the test before any request he take the test or explanation about the test had been made. The principal argument in support of the decision by the State is the assertion that the decision was not contrary to the manifest weight of the evidence. The State does not attempt to support the waiver theory. Rather, it seems to contend that the evidence permits the inference that the defendant knew or should have known of the consequences of his refusal to take the test.

In order to relieve arresting officers from undue loss of time by appearance at hearings on requests for rescission of summary suspensions, section 2 — 118.1(b) of the Code states in part, “[t]he hearing may be contested upon a review of the law enforcement officer’s own official reports; provided however, that the person may subpoena the officer.” (Ill. Rev. Stat. 1989, ch. 95V2, par. 2 — 118.1(b).) These reports are admissible in evidence at the hearing. (People v. Clayton (1990), 201 Ill. App. 3d 163, 559 N.E.2d 300.) The docket sheet here indicates the officer’s official report was filed but it is not in the certified record. In the case of In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614, this court warned of the problems likely to arise when the admonitions of consequences of test refusal are given to an arrestee. This court noted that a “Warning to Motorists” form has been provided which sets forth the various suspensions which can result from refusal. Suggestion was made that the form should be read to the arrestee, signed by the officer and filed with the officer’s sworn report. This “Warning to Motorists” form is likely the document which defendant states he received and gave to his wife.

As no such form is incorporated into a sworn officer’s report and no such report, even without the form, is before us, the defendant’s testimony stands unrefuted. Thus, we must analyze the issues here on the basis that defendant refused the test without having been advised as to the full consequences of his refusal. Section 11 — 501.1(c) of the Code does not expressly require an arrestee be warned of the possible length of the resultant suspension. It merely states that the warning must tell the arrestee that the refusal “will result in the statutory summary suspension of such person’s” driving privileges. (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501.1(c).) However, we conclude, by analogy to other decisions concerning the format for chemical tests to determine intoxication under the Code, that specific admonition as to the length of possible suspension is required.

In People v. Monckton (1989), 191 Ill. App. 3d 106, 547 N.E.2d 673, an arrestee charged with DUI was advised by the arresting officer that if he took a breathalyzer test he could get a judicial driving permit and, if he refused, he would lose his license for 12 months. The arrestee submitted to the test, which resulted in a blood-alcohol content reading of 0.17. In a subsequent prosecution, the circuit court denied his motion to suppress the test results because of improper explanation by the officer and was convicted. On review, the appellate court noted that the actual suspension which that defendant would have faced for .refusal to submit to the test was only six months. The DUI conviction was reversed because of the erroneous denial of the. motion to suppress the test result when the defendant had been misled as to the possible length of sanction for refusing to submit to the breath test, i.e., where he was told the suspension was for a longer period than was the case.

In People v. Znaniecki (1989), 181 Ill. App. 3d 389, 537 N.E.2d 16, a motorist’s driving privileges were suspended by the Secretary of State after the motorist had submitted to a blood test given pursuant to section 11 — 501.1 of the Code. Section 11 — 501.1(c) not only requires suspension for one who improperly refuses a chemical test but also requires suspension if a motorist takes the test and is shown to have a blood-alcohol content of 0.10 or greater. That test resulted in a reading in excess of 0.10. However, the appellate court ultimately ordered rescission of a summary suspension of that motorist’s driving privileges because the warnings given the motorist by the arresting officer did not include an explanation in regard to the consequences to the motorist if he took and failed the test.

In People v. Wegielnik (1990), 205 Ill. App. 3d 191, 562 N.E.2d 573, the summary suspension of the driving privileges of a motorist not sufficiently conversant with English to understand the explanation concerning the consequences of taking or refusing a test under section 11 — 501.1 of the Code was held to necessitate a rescission of a suspension resulting from his refusal to take a test. In Trainor, this court indicated the proper way to satisfy the warning requirement of section 11 — 501.1(c) of the Code is for the arresting officer to read to the arrestee all of the warnings of the provided form, which includes an explanation that the suspension is longer when the arrestee is not a first offender. We conclude defendant is entitled to relief here because of the inadequacy of the warning given as shown by the record.

One remedy would be to require rescission of the summary suspension. However, such a remedy would give defendant more than that to which he is entitled. He concedes he was admonished that his suspension could have been for six months. He was deceived only to the extent that his suspension was for two years rather than for six months. The fairest relief which could have been given would have been for the circuit court to have rescinded the portion of the summary suspension which exceeded six months. (See Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495.) Accordingly, pursuant to Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we modify the judgment of the circuit court to provide that the summary suspension is rescinded to the extent it exceeds a period of six months. We affirm the judgment of the circuit court as modified.

Affirmed as modified.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    MARILYN K. THOMPSON, Plaintiff-Appellant, v. LYNETTA MARIE WARE, Defendant-Appellee.
    Fourth District
    No. 4 — 90—0676
    Opinion filed March 7, 1991.
    Ralph H. Loewenstein, of Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for appellant.
    David L. Requa, of Requa & Alexander, of Springfield, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Marilyn K. Thompson appeals from an order and judgment of the circuit court of Sangamon County, denying a motion to correct misnomer and a summary judgment entered in favor of defendant Lynetta Marie Ware.

For purposes of this opinion, we assume the following facts. Plaintiff was involved in an automobile accident on January 12, 1987, in which the second vehicle involved was owned by Lynetta Marie Ware, but was driven by Lynetta’s identical twin sister, Lynette Marie Owens. Ware is the maiden name of the sisters. The police accident report listed the driver of the Ware automobile as “Lunite M. Owens,” and listed the address of the driver as 110 West Jefferson, Springfield, Illinois.

On January 17, 1987, counsel for plaintiff wrote a letter to “Lunite M. Owens” and mailed it to the Jefferson Street address, with a certified return receipt requested. The return receipt was signed by Lynetta M. Ware. A letter from counsel to the insurance company listed for the Ware automobile was sent the same day and resulted in a letter from the company indicating the insured was Lynetta M. Ware. This personal injury action was filed on December 28, 1988, against Lynetta Marie Ware, and she was served with summons on February 1,1989.

During a December 8, 1989, deposition of defendant, plaintiff’s counsel discovered that the defendant owned the automobile, but that defendant’s identical twin sister was driving the vehicle at the time of the accident. At a subsequent deposition, Lynette Marie Owens admitted being the driver at the time of the accident, and stated that she had formerly resided at 110 West Jefferson in Springfield. Plaintiff’s complaint sought damages for personal injury, and actions for personal injury shall be commenced within two years of the accrual of the cause of action. Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202.

Upon discovery of the mistake, plaintiff moved to correct the name of the defendant from Lynetta Marie Ware to Lynette Marie Owens, citing as authority section 2 — 401(b) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 401(b)). This motion was denied, and summary judgment was entered in defendant’s favor.

Section 2 — 401(b) of the Code provides:

“Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 401(b).

Defendant contends that section 2 — 401(b) only applies where the party is actually served and defendant is misnamed, not where a separate party who has not been served or participated in the cause of action is sought to be made a party. She further contends that her sister could only be added under the authority of section 2 — 616(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(a)), which provides in part:

“Amendments, (a) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff ***.”

We initially emphasize that section 2 — 401(b) of the Code can be used even after judgment, but the quoted portion of section 2 — 616(a) of the Code is applicable only before final judgment. The statute of limitations may apply to parties sought to be added under the Code provisions of section 2 — 616(a), if the period of limitations has expired. However, in matters involving cases under section 2 — 401(b) of the Code, the statute of limitations does not bar recovery if reasonable diligence has been used in obtaining service on the misnamed defendant. (Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 951, 473 N.E.2d 574, 576.) Section 2 — 401(b) of the Code is not applicable where the wrong party has been named, for which section 2 — 616(a) of the Code provides prejudgment relief. (Cigan v. St. Regis House Hotel (1979), 72 Ill. App. 3d 884, 886, 391 N.E.2d 197, 199.) The party in interest envisioned by the misnomer provisions of section 2 — 401(b) of the Code refers to whether the parties were before the court, whether they had notice of the proceedings, and whether they had an opportunity to defend. Cigan, 72 Ill. App. 3d at 887, 391 N.E.2d at 200; see also Stevens v. Yonker (1973), 12 Ill. App. 3d 233, 298 N.E.2d 395.

The plaintiff in Osman initially filed, listing the defendant’s name as Osmond. However, service was had on Stanley Osman as registered agent for the corporation. There was no Osmond Corporation. This misspelling resulted in a court order which quashed summons. Subsequent service, after the period of limitations had run, was, on appeal, sustained on the theory that the error in spelling was a misnomer. The Osman decision did state that the plaintiff intended to sue the general contractor, but the stated plaintiff “merely misspelled the name.” Osman, 129 Ill. App. 3d at 951, 473 N.E.2d at 577.

In the present case, it is obvious the plaintiff intended to sue the person driving the vehicle at the time of the accident. However, the service was on one other than the driver, and no misnomer took place as to the person served. Regardless of the apparent unfairness, we do not equate the present facts with those in Osman or other cases cited in plaintiff’s behalf. We know of no notice to Lynette Marie Owens, or of suit being filed listing her as defendant, prior to the expiration of the two-year limitations.

The identical-twin relationship and the defendant’s auto ownership does not justify straying from the requirements of section 2 — 616(d) of the Code, which provides in part:

“A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: *** (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee ***.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(d).

We return to our earlier comment that misnomer can be corrected after judgment, but amendments adding parties must precede judgment. If we were to find misnomer under the present facts, theoretically, if judgment had been entered prior to the motion, it could be subsequently enforced against Lynette Marie Owens, even though she was never given notice or had the right to defend. Regardless of the peculiar fact situation with which we are now concerned, we conclude that this case did not involve misnomer as envisioned in section 2— 401(b) of the Code. The circuit court order and judgment will be affirmed.

Affirmed.

GREEN and KNECHT, JJ., concur.


author: JUSTICE GREEN

text:
    TIMOTHY C. DALY, Plaintiff-Appellant, v. BRUCE N. CARMEAN, Defendant-Appellee.
    Fourth District
    No. 4 — 90—0481
    Opinion filed March 7, 1991.
    — Rehearing denied April 12,1991.

      Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus, of counsel), for appellant.
    Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, and Adrian E. Harless and Guy A. Studach, both of Heyl, Royster, Voelker & Allen, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On July 23, 1986, plaintiff Timothy C. Daly filed a two-count complaint in the circuit court of Macon County against defendant Bruce N. Carmean, a podiatrist, charging defendant with medical malpractice and seeking compensatory damages. Count I of the complaint alleged specific acts of negligence by defendant in diagnosing and treating plaintiff for a foot condition. Count II invoked application of the doctrine of res ipsa loquitur by making a general allegation of negligence by defendant. The case was tried by jury. At the close of the plaintiff’s evidence, upon defendant’s motion, the court directed a verdict for defendant as to count II (res ipsa). The jury ultimately found for defendant as to count I and judgment was entered on that verdict on April 27, 1990. Plaintiff has appealed. We affirm the judgment entered as to count II but reverse the judgment as to count I. We remand for a new trial.

Plaintiff maintains the circuit court erred (1) in directing a verdict for defendant on the res ipsa loquitur count; (2) in improperly instructing the jury on the “continuing course of treatment rule,” which determined whether the cause was timely filed; (3) in refusing various instructions tendered by plaintiff; (4) in denying plaintiff leave to reopen its case, and denying plaintiff leave to amend the complaint-to allege defendant was estopped from maintaining the action was time barred; (5) in refusing to strike testimony of defendant’s expert; and (6) in not granting plaintiff relief because defendant communicated with plaintiff in open court before the jury. Our partial affirmance and partial reversal is based upon our determination that the directed verdict on the res ipsa count was proper and the instruction on the “continuing course of treatment rule” created reversible error.

The evidence of the underlying circumstances of the case was not in dispute. Defendant had been practicing podiatry in Decatur for 31 years at time of trial. A podiatrist is a person licensed to diagnose and give “medical, physical or surgical treatment of the ailments of the human foot” within limitations. (Ill. Rev. Stat. 1981, ch. Ill, par. 4908.) On July 17, 1981, defendant began treating plaintiff for pain in his right first metatarsal (big toe). At that time, plaintiff was a 40-year-old male, 6 feet 6 inches, weighing 245 pounds, who was an avid runner and athlete. Defendant X rayed and examined plaintiff’s feet and found a bunion on his right big toe and a hammertoe of the second metatarsal of both feet. A “bunion” is a swelling of a joint at the base of the big toe which forces the bones in an outward direction. A “hammertoe” is a toe in a permanently flexed position, resulting in a claw-like appearance. Defendant diagnosed plaintiff’s condition as resulting from a condition of his feet called “pronation,” by which plaintiff’s arches rotated inward, causing a flattening of the feet.

After completing the foregoing examination and diagnosis, defendant performed a “silver bunionectomy” on plaintiff’s right foot by shaving the medial side of his big toe in an attempt to reduce the bulge in the medial side of that foot. Defendant then told plaintiff to wear surgical shoes and to temporarily restrict his walking. On October 21, 1981, defendant prescribed inlays for plaintiff’s shoes in an attempt to correct plaintiff’s pronation. Plaintiff’s complaint of pain in his right big toe continued and, on March 1, 1982, defendant performed a McBride bunionectomy, a modified Wilson oblique osteotomy on the first toe of plaintiff’s right foot, and a “V” osteotomy on the second toe of plaintiff’s right foot. Soon plaintiff began complaining of pain in the second toe of his left foot and defendant then performed three operations on plaintiff’s left foot which involved the same procedures earlier applied to plaintiff’s right foot. That left foot was then tightly wrapped and placed in a plaster cast.

Plaintiff complained of further pain and, on October 29, 1982, defendant performed “V” osteotomies on the third toe of both feet. On November 18, 1983, defendant performed osteotomies on the fourth toe of both feet and, also, performed joint resections to correct plaintiff’s hammertoe condition, and a neuronectomy between the third and fourth toes of both feet. As plaintiff continued to suffer pain, defendant injected plaintiff’s right big toe with a substance called Kenalog on January 7, 1984, and on August 29, 1984. The latter injection was made during plaintiff’s last visit to defendant. According to defendant, plaintiff’s only complaint at that time concerned a small amount of inflammation in his right big toe, and defendant told plaintiff he could continue jogging.

Plaintiff testified that because his pain was intensifying and his ability to function normally was seriously impaired, he independently sought and underwent a gait analysis at Southern Illinois University on September 28, 1984. Plaintiff testified that the gait analysis revealed that his gait was irregular.

On February 5, 1986, plaintiff entered the care of Dr. Robert Palmer, an orthopedic surgeon in Indianapolis who specialized in foot surgery. Dr. Palmer testified that plaintiff had a preexisting condition called Morton’s syndrome. Morton’s syndrome is an anatomical deformity whereby the big toe is naturally short. Dr. Palmer testified that he performed an oblique osteotomy at the base of the second and third toes of plaintiff’s right and left foot. Dr. Palmer testified that the reason for the surgeries was that the shortening of the big toe by defendant had resulted in these two toes being relatively too long and thus bearing an excessive amount of weight. On June 23, 1987, Dr. Palmer performed a resection arthroplasty distal end of the second toe and removed the lateral sesamoid on the plaintiff’s right foot. Dr. Palmer testified that on October 25, 1988, he removed a bone spur on the distal head of plaintiff’s second toe on the right foot.

Dr. James H. Lawton, a podiatrist, testified on behalf of plaintiff, giving expert opinion testimony after examining plaintiff and reviewing defendant’s records, including the X rays taken July 17, 1981, and deposition testimony of plaintiff, his wife, defendant, Dr. Palmer, and Dr. Mose Galluzzo (who later testified as an expert for defendant). Dr. Lawton stated the X rays indicated plaintiff had a mild bunion deformity on both feet with a shift of the sesamoids under each big toe. A sesamoid is a small bony mass imbedded in tendons. Lawton testified defendant should have examined plaintiff’s legs, knees, ankles, and overall structure of the feet before starting treatment and defendant’s notes did not indicate this was done. He also stated the silver bunionectomy performed was not the proper procedure to use because it does not correct a condition like plaintiff’s where the big toe joint is out of alignment and a shift of sesamoids exists. Lawton stated the proper treatment would have been of a conservative nature which would have included use of foot-supporting shoes for a period of six months to one year.

Dr. Lawton testified that the modified Wilson oblique osteotomy performed on March 1, 1982, also fell below the standard of care due to the fact that plaintiff’s big toe was naturally short (a condition known as Morton’s syndrome). The modified Wilson oblique osteotomy by its very nature is a procedure which shortens bone. Dr. Law-ton testified that the literature is replete with examples of complications resulting from the performance of the procedure in this context. He noted successive shortening of the toes leads to excessive mechanical stress which is a condition known as metatarsalgia. Additionally, Dr. Lawton testified, the standard of care was violated when defendant failed to immobilize the affected portions of plaintiff’s feet following the surgical procedures.

Dr. Lawton stated that, as a result of defendant’s improper care, plaintiff experienced a condition called “chasing the metatarsals.” Dr. Lawton stated that if you fracture one toe as in an osteotomy, that bone elevates, and the stress goes to the next toe. Sometime later the stress directly escalates the next toe. Basically, you have to continue to fracture the following toes in order to achieve proper weight distribution.

Dr. Lawton gave an opinion that defendant’s failure to use fixation after the Wilson osteotomy of the big toe caused transfer lesions under the remaining toes. Transfer lesions are calluses formed under the toes due to the shifting of weight. Dr. Lawton testified that the transfer lesions necessitated the need for further surgeries. Dr. Law-ton stated that in his opinion transfer lesions would not have occurred had defendant performed the proper initial procedure, a modified McBride bunionectomy.

Dr. Galluzzo testified for defendant, stating (1) he was a licensed podiatrist who had been practicing in Rockford since 1955, and (2) in his opinion defendant’s selection of treatment for plaintiff was within the standard of care of a reasonably well-qualified podiatrist.

We consider first the propriety of the directed verdict as to count II. Translated literally, the Latin phrase res ipsa loquitur means “the thing speaks for itself.” The doctrine is a method of proving negligence by circumstantial evidence when the knowledge of whether negligence occurred is much more available to the opponent than the proponent. (See W. Keeton, Prosser and Keeton on Torts §39, at 242-43 (5th ed. 1984).) In order for a plaintiff, in a tort action, to invoke the doctrine, that plaintiff must establish he was injured: (1) in an occurrence that ordinarily does not happen in the absence of negligence, and (2) by an agency or instrumentality within the defendant’s exclusive control. (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 295, 560 N.E.2d 586, 590-91.) Prior to the adoption of comparative negligence (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886), the doctrine also required proof the injury was not due to any voluntary act or neglect by the plaintiff. However, such a requirement is inconsistent with the theory of comparative negligence. Gatlin, 137 Ill. 2d 284, 560 N.E.2d 586.

In proving the elements of res ipsa loquitur in medical malpractice cases, the plaintiff may rely upon the testimony of lay witnesses as to matters of common knowledge or upon that of experts. (Ill. Rev. Stat. 1989, ch. 110, par. 2-1113; Gatlin, 137 Ill. 2d 284, 560 N.E.2d 586.) Here, plaintiff relied upon the following testimony of Dr. Lawton given at various stages of his direct examination:

“Q. And in your opinion with a reasonable degree of medical certainty, if Dr. Carmean had possessed and applied the skill and care of a reasonably well qualified podiatrist during his treatment of Mr. Daly in 1981 and 1982, would this — would the osteotomies on the second, third, and fourth [toes] have been required?

A. No, sir.

* * *

Q. And the osteotomies on the second, third, and fourth [toes] of Mr. Daly’s feet in your opinion, with a reasonable degree of medical certainty, would these more probably than not have been required or necessary had Dr. Carmean possessed and applied the skill of a reasonably well qualified podiatrist in treating the bunions on Mr. Daly’s first [toes] in 1981 and 1982?

A. They shouldn’t have been necessary at all if the correct procedure had been applied in the initial surgical episode.

* * *

Q. And the — as to the — do you have an opinion with a reasonable degree of medical certainty based upon your investigation, examination and treatment and discussion as to what Mr. Daly’s situation would be today if he had been treated with the applicable standard of care as you have discussed yesterday by Dr. Carmean in 1981? ***

A. I think following normal criteria and procedures that should have been performed, that at the present time, Mr. Daly would be functioning normally.” (Emphasis added.)

The testimony showed sufficient evidence of control by defendant of plaintiff’s treatment to establish the control requirement for res ipsa loquitur. (Coffey v. Brodsky (1987), 165 Ill. App. 3d 14, 518 N.E.2d 638.) However, as we have stated, the phrase means “the thing speaks for itself.” The “thing” was plaintiff’s condition at the conclusion of his treatment by defendant. Dr. Lawton’s answers did not indicate his opinion that he could conclude from plaintiff’s condition alone that, more likely than not, the treatment had been negligently selected. Rather, in the context of Dr. Lawton’s testimony, his answers relied upon to invoke res ipsa indicate his opinion was formed on the basis of his knowledge of the treatment that was actually performed.

Plaintiff’s alternate reliance upon specific acts of negligence, as set forth in count I, does not, of itself, preclude him from proving his case through use of res ipsa loquitur. In Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397, a plaintiff sought to invoke res ipsa loquitur together with proof of specific acts of negligence to recover against health providers for injuries occurring during surgery. The evidence was uncertain as to what had actually occurred. In upholding the appellate court’s reversal of a summary judgment for a defendant hospital, the court held res ipsa could be used to create a factual question as to the negligence of the hospital. Nonetheless, the court cautioned that res ipsa could not have been applied “if the evidence introduced by plaintiff conclusively established the exact cause of his injuries.” Kolakowski, 83 Ill. 2d at 397, 415 N.E.2d at 401.

Here, the evidence was undisputed as to the procedures which had been performed. We are unaware of a medical malpractice case where liability depended upon the selection of treatment, no dispute existed as to the treatment actually performed and res ipsa was held to apply. To permit use of res ipsa here would be closely analogous to the use prohibited by the explanation in Kolakowski and would permit its use in the vast majority of cases where the propriety of the selection of medical treatment was the issue. Under the circumstances of this case, the circuit court properly determined res ipsa had not been brought into play. The court correctly directed a verdict in favor of defendant as to count II.

The dispute over the “continuing course of treatment” rule arose from the court’s ruling on tendered issues instructions as they concerned the question of whether plaintiff’s complaint was timely filed. At times pertinent, section 13 — 212 of the Code of Civil Procedure (Code) provided that, absent fraudulent concealment, malpractice actions brought by a patient against a physician must be brought within “2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death” involved “whichever of such date occurs first,” and within “4 years after” the “act or omission or occurrence” stated to be the cause of “the injury or death” involved. (Ill. Rev. Stat. 1985, ch. 110, par. 13— 212.) As we have stated, plaintiff’s complaint was filed on July 23, 1986. The last treatment given by defendant to plaintiff was on August 29, 1984, which was within the two-year period. Much of the surgery was performed before July 23, 1982, on which date a four-year statutory period of repose began.

After tender by defendant and over objection of plaintiff, the court submitted to the jury an instruction which told the jury that an issue was raised as to the timeliness of plaintiff’s filing of his complaint, and that plaintiff maintained it was timely filed because “defendant’s negligent course of treatment continued to” a time “to within two years” of the filing of the complaint. (Emphasis added.) This instruction recognized that continued treatment by a physician for the same condition may extend the date upon which the limitation period for bringing an action for negligent treatment may begin. The instruction required that the continuing treatment must be negligent. Plaintiff maintains the continuing treatment need not be negligent. The issue is crucial here because the record makes little showing of negligence on the part of defendant after July 23, 1984, the date which was two years before the complaint was filed.

In recognizing a rule whereby a course of continuing treatment may toll the triggering date for a statute of limitation for medical malpractice, but only if the continuing treatment is negligent, plaintiff relies upon Aznel v. Gasso (1987), 154 Ill. App. 3d 785, 507 N.E.2d 83. There, a defendant surgeon had performed a series of abdominal operations upon a plaintiff prior to December 1973 when the defendant surgeon left Chicago and went to Florida to continue his practice. The plaintiff was then treated by other doctors and then consulted an attorney in the spring of 1983 about suing the defendant surgeon for malpractice. That plaintiff then arranged for an examination by the defendant surgeon and flew to Florida and was examined. He then filed suit and suffered the entry of a summary judgment against him because of the two-year limitation period involved here. Ill. Rev. Stat. 1985, ch. 110, par. 13-212.

On appeal, the Aznel court affirmed. That court noted that in Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 490 N.E.2d 1252, the supreme court had suggested a course of continuing care or treatment by a physician might toll the triggering of the statute of limitations. The Aznel court then concluded that the course of treatment there had not been continuous and that to permit a tolling of the limitation period under those circumstances would make the statute of limitations almost meaningless. The court also stated that “continuing negligence, not merely continuing treatment, is needed in order to satisfy the doctrine.” Aznel, 154 Ill. App. 3d at 788, 507 N.E.2d at 86, citing Nutty v. Universal Engineering Corf. (S.D. Ill. 1983), 564 F. Supp. 1459 (a decision based on a determination as to Missouri law).

In Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 544 N.E.2d 846, this court affirmed a summary judgment for a defendant in a malpractice case because of the operation of the four-year repose provision of section 13 — 212 of the Code. In the process of reaching a decision, this court reasoned that the statute of repose would have been triggered only on the last day of treatment had not that plaintiff discovered earlier that her treatment had been negligent. This court did not directly state that the continued treatment did not have to be negligent. However, this court mentioned that “[i]n Jacobson v. Natonson (1987), 164 Ill. App. 3d 126, 517 N.E.2d 304, the court noted that the doctrine [of continuing course of treatment] traditionally operates to toll the four-year repose period *** during a continuous course of treatment for a specific condition, and would commence running on the day of the last treatment.” (Emphasis added.) (Neaterour, 188 Ill. App. 3d at 747, 544 N.E.2d at 851.) Had continuing negligence been intended to be required, both Neaterour and Jacobson would likely have listed that as a condition for invoking the continuing course of treatment rule.

We agree with the implied dictum of Neaterour that a continuing course of treatment, as here, need not be negligent if it is for the same “specific condition.” Clearly, the Florida treatment in Aznel was not a continuing part of the prior allegedly negligent treatment given a decade earlier in Illinois. Plaintiff has cited Metzger v. Koike (Wyo. 1985), 709 P.2d 414, and Comstock v. Collier (Colo. 1987), 737 P.2d 845, where statutes of limitation have been held to be triggered only upon the end of a continued course of treatment for the same or closely related injuries. The Metzger court indicated that the treatment “should be considered as a whole and if malpractice occurred during its course, the statute of limitations begins to run when the treatment terminates.” (Metzger, 709 P.2d at 417.) In Comstock, the court pointed out that a physician, throughout a continuing course of treatment, has “a duty to rectify any mistakes made during the course of treatment.” Comstock, 737 P.2d at 849.

Despite the lack of clear precedent, we hold that the continuing course of treatment need not continue to be negligent to toll the triggering of either the two-year period of limitation or the four-year period of repose of section 13 — 212 of the Code. Because the jury could well have found for the defendant on the basis of a belief that plaintiff had failed to negate operation of the two-year period of limitation because defendant’s last negligent act occurred more than two years before the filing of the complaint, we conclude the giving of the issues instruction in question was reversible error requiring a new trial as to count I.

As a new trial must be held, we examine other claims of error made by plaintiff only to the extent that the same issues may arise on retrial.

Plaintiff maintains the court erred in refusing instructions he offered in regard to issues and burden of proof. Neither made reference to the question of whether plaintiff had discovered he had been negligently injured early enough to invoke the discovery aspect of section 13 — 212 of the Code which cause the limitations and repose time limits to start to run. In order for those time frames to be triggered, the plaintiff must not only know he has been injured by the services performed by the defendant but also know that the injury resulted from the defendant’s negligence. (Skoglund v. Blankenship (1985), 134 Ill. App. 3d 628, 481 N.E.2d 47.) Defendant contends testimony of plaintiff created a question of fact as to whether plaintiff had knowledge of his injury and its negligent causation at a sufficiently early date to justify the refusal of the instructions.

Defendant relies on testimony by plaintiff in which he stated that by November 19, 1983, when the last surgery by defendant was performed, he assumed pain he suffered was related to the surgeries defendant had performed and was greater than pain he had previously suffered from his feet. Plaintiff explained he then felt the pain was increasing with each surgery while “[ejvery surgery was supposed to be eliminating the pain.” The foregoing testimony comes very close to raising the factual issue claimed by defendant but we do not deem it quite strong enough to do so. The inference plaintiff knew the surgery was not a success is strong but slightly more is required to permit an inference that he knew the wrong treatment had been prescribed. Because of the closeness of the question, the court must rule carefully on retrial.

Plaintiff also asserts the court erred in refusing the following instruction, which is not included in Illinois Pattern Jury Instructions, Civil (3d ed. 1990) (IPI Civil 3d):

“If a health care provider is guilty of professional negligence which creates a condition of the plaintiff’s body, then the health care provider is liable not only for plaintiff’s damages resulting from that condition, but also liable for any damages sustained by the plaintiff arising from the efforts of subsequent health care providers to treat the condition caused by the initial health care provider.”

In support of this instruction, plaintiff cites Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40. In Gertz, the defendant automobile driver filed a third-party complaint against a physician, whom he alleged had negligently treated that plaintiff after an automobile accident. The third-party complaint sought indemnity for any damages which might be assessed against defendant under plaintiff’s complaint which were attributable to the malpractice of the physician. The trial court dismissed the third-party complaint and the appellate court reversed. The supreme court affirmed the appellate court. The supreme court ruled that the defendant, third-party complainant, was liable for any aggravation of injuries suffered by that plaintiff. Moreover, that plaintiff was permitted to recover from defendant for the original injuries as well as for any aggravation attributable to the attending physician’s subsequent negligence. Therefore, the court held that the third-party complainant had a right to bring the action against the physician to be indemnified for the damages to the plaintiff attributable to the malpractice.

Gertz did not involve an issue of jury instruction; it only addressed the question of whether the third-party complaint stated a cause of action and whether that defendant was liable for the injuries that plaintiff received in treatment. Defendant maintains that no case since Gertz, which was decided in 1973, has approved a jury instruction based specifically upon that decision.

Furthermore, defendant claims that plaintiff’s tendered instructions were both argumentative and already covered by IPI Civil 3d No. 12.04 and, therefore, the court properly refused plaintiff’s non-IPI. Defendant claims that the following instruction should have been tendered by plaintiff:

“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.” IPI Civil 3d No. 12.04.

The instruction tendered by plaintiff, based on Gertz, concerns the liability of a tortfeasor for injury resulting from the negligence of one who supplies medical treatment to the victim of the original tort for the injuries resulting from the original tort. IPI Civil 3d No. 12.04 concerns proximate cause when more than one tortfeasor is involved but does not explain the special rule involved in Gertz. Where, as here, no IPI instruction accurately states the rule of Gertz, a non-IPI instruction is permissible under Supreme Court Rule 239(a) (134 Ill. 2d R. 239(a)) if it is simple, brief, impartial, and nonargumentative. (Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 502 N.E.2d 480.) The tendered instruction accurately stated the law and met the requirements of Fravel. We do not agree with Lay v. Knapp (1981), 93 Ill. App. 3d 855, 417 N.E.2d 1099, that such a non-IPI instruction must amplify or clarify an IPI instruction. Giving the instruction here would have been proper but the court did not breach its discretion in refusing the instruction.

Plaintiff tendered Illinois Pattern Jury Instructions, Civil, No. 105.01 (2d ed. 1971) (IPI Civil 2d), which sets forth the general duty of a doctor and describes conduct which constitutes malpractice. This instruction was given. Plaintiff tendered IPI Civil 2d No. 105.02, concerning the duty required of a medical specialist, and that was refused. Defendant contends that the latter instruction was redundant. Plaintiff maintains that IPI Civil 2d No. 105.01 was tendered only after IPI Civil 2d No. 105.02 was refused. The record is not entirely clear in that respect, but we need not decide this dispute. Both instructions need not be given but either one, by itself, is permissible.

Plaintiff tendered both IPI Civil 3d No. 10.01 (modified) and IPI Civil 2d No. 105.01, which we discussed in the last paragraph. Plaintiff’s tendered IPI Civil 3d No. 10.01 as modified stated:

“When I use the word ‘negligence’ in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence.” IPI Civil 3d No. 10.01 (modified).

Plaintiff maintains the court erred in refusing the instruction. The giving of this instruction in addition to those defining the duty of a physician has been held not to be error. (Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, 520 N.E.2d 881; Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 493 N.E.2d 6.) However, the instructions defining the duty of a doctor or a specialist and describing malpractice (IPI Civil 2d Nos. 105.01, 105.02) give sufficient explanation of the care required of a medical provider, and a general description of negligence is unnecessary. The court was not required to give the instruction in question.

The trial court refused to allow plaintiff to reopen his case and to amend his complaint to allege estoppel after the court’s rulings on instructions indicated the question that his complaint was untimely was before the jury. We need not decide whether this was error, as plaintiff will have an opportunity to amend upon remand and can introduce pertinent evidence at retrial.

Dr. Galluzzo, defendant’s expert, testified on cross-examination that his opinion was based, in part, upon operation reports of defendant not prepared until May or June 1988. However, all of the significant matters set forth therein were established by proper evidence. No error resulted from the trial court’s refusal to strike his testimony.

As we have stated, we affirm the judgment on the directed verdict for defendant as to count II. We reverse the judgment on the jury verdict as to count I and remand for a new trial.

Affirmed in part; reversed in part and remanded.

SPITZ and KNECHT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE K. LEMONS, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0252
    Opinion filed March 14, 1991.
    — Rehearing denied April 15,1991.

      Daniel D. Yuhas and David R Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Kevin T. McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court;

On September 8, 1988, an information filed in the circuit court of McLean County charged defendant Wayne K. Lemons in separate counts with the commission of the offense of aggravated criminal sexual abuse by committing acts of sexual conduct with C.S. and S.S. As charged here, a person commits aggravated criminal sexual abuse when that person, being 17 years of age or older, commits an act of “sexual conduct” with a person under 13 years of age (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(c)(1)). As charged here, “sexual conduct” consists of the “intentional or knowing touching or fondling” by an accused “directly or through clothing, of the sex organs *** or breast of the victim[s].” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(e).) The information charged defendant, a person over 17 years of age, with fondling (1) the sex organs and breast of C.S., and (2) the sex organs of S.S., each of whom was under 13 years of age.

After a trial by jury, defendant was convicted of both offenses on January 11, 1990. On March 12, 1990, the court sentenced defendant to concurrent terms of 41/z years’ imprisonment. Defendant appeals, contending (1) the evidence did not support the verdict, and (2) the failure of the court to instruct the jury as to the mental state necessary for commission of aggravated criminal sexual abuse resulted in plain error. We affirm.

The major dispute in regard to the sufficiency of the evidence to support the verdicts concerns the proper standard for us to view the evidence on review. Defendant points out that in several of our decisions, beginning with People v. James (1990), 200 Ill. App. 3d 380, 558 N.E.2d 732, appeal denied (1990), 135 Ill. 2d 562, 564 N.E.2d 843, we have no longer followed the rule that in cases of sexual offenses, a conviction based entirely upon the uncorroborated testimony of the victim cannot stand unless that testimony is “clear and convincing” as stated in People v. Freeman (1910), 244 Ill. 590, 595, 91 N.E. 708, 710. Defendant maintains we have, in effect, improperly attempted to overrule the supreme court. Defendant urges us to abandon James and its progeny and to return to the Freeman rule. We adhere to James. However, before discussing that issue further, we summarize the evidence upon which the verdicts were based.

At the time of the alleged offenses, C.S. and S.S. were 11 and 10 years of age, respectively. They lived with their mother, J.S. The defendant, who was not married to J.S., was living with them and other children of J.S. Defendant was the father of the two youngest children. The proof of defendant’s guilt depends entirely upon the testimony of C.S. and S.S.

C.S. testified as follows. One afternoon in December 1987, she and defendant were at home alone watching television. Defendant had come out of his bedroom and sat down “real close” to her on a couch. He then reached underneath her clothing and rubbed her breast for approximately five minutes. He, then, rubbed her in the pubic area from outside her jeans. This lasted for about three minutes. She then got up and went to her godmother’s house but did not tell her godmother of the incident. The first person C.S. told about the incident was her mother, whom she told “[a] long time” later. Her mother was “shocked.” She and S.S. never talked about this episode or similar matters. After this episode, she avoided defendant, although they had a “good” relationship earlier. In the summer of 1988, C.S. discussed the matter with a neighbor, who apparently called the situation to the attention of the Department of Children and Family Services (DCFS). A person from DCFS then interviewed C.S.

C.S. was impeached to the extent that when testifying before the grand jury she gave an answer of “yeah” to a question as to whether, at the time of the alleged rubbing of her vaginal area, defendant had touched her “inside [her] clothing on [her] skin.” At trial, C.S. testified she did not remember giving that answer and did not know why she did. C.S. also testified at trial that defendant had only touched her breasts on one side while she had signed a statement taken by a police officer indicating defendant had “felt [her] breasts all over.” She was also impeached on cross-examination by her inability to remember such details of the alleged offense as the time of day when the incident occurred, the name of the television program she had been watching, what clothes defendant was wearing, and which hand he used to rub under her shirt.

S.S. testified that during the summer of 1987, when she and defendant were at home alone, he called her into her mother’s bedroom and told her to pull down her pants, offering her money to do so. According to S.S. she complied and defendant touched her skin on the outside of her vagina. S.S. testified that as this was happening, defendant’s mother arrived at the house and knocked on the front door, whereupon defendant left to let her in. According to S.S., defendant was wearing blue jeans and had unbuckled his belt before he felt between her legs. She told no one of this until she was questioned by a caseworker investigating the complaint that defendant had sexually abused C.S. S.S. testified at trial that this episode occurred after the Fourth of July, whereas she had testified before the grand jury that it happened before that date. Similar disparity existed between the earlier testimony of S.S. and that she gave at trial as to the room she was in when required by defendant to come to the bedroom.

Defendant testified he had lived with J.S. periodically for 10 years and denied he had ever touched S.S. or C.S. on the breast or vagina. J.S. testified neither daughter told her defendant had touched them inappropriately and said she first learned of their contentions from DCFS personnel. J.S. further stated she had noticed no changes in either girl’s attitude toward defendant occurring after the time of the alleged incidents but stated C.S. had disliked defendant for a long time because he established disciplinary rules.

Defendant’s insistence upon the application of the “clear and convincing” test of Freeman on review arises because of the alleged lack of evidence to corroborate the testimony of C.S. and S.S. and the weaknesses in their testimony. The Freeman court described an offense involving sexual abuse to minors as being analogous to the offense of rape where traditionally reviewing courts had given special scrutiny to the testimony of victims and mentioned that a jury is particularly likely to be aroused against those charged with committing a sexual offense against children. That court then applied a test, then applicable to rape cases, whereby the testimony of the victim, if uncorroborated, was required to be “clear and convincing” to support a conviction. Freeman, 244 Ill. at 595, 91 N.E. at 710.

The Freeman “clear and convincing” standard of review has been followed by the supreme court through the years (e.g., People v. Fitzgibbons (1931), 343 Ill. 69, 174 N.E. 848; People v. Kolden (1962), 25 Ill. 2d 327, 185 N.E.2d 170) and more recently in People v. Morgan (1977), 69 Ill. 2d 200, 370 N.E.2d 1063. As the Freeman court indicated, the rule for review that court was invoking had been the rule in rape cases. An excellent discussion of the history of the “clear and convincing” rule in rape cases is contained in the special concurrence of Justice Steigmann of this court in People v. Cole (1990), 193 Ill. App. 3d 990,. 997-1001, 550 N.E.2d 723, 728-31 (Steigmann, J., specially concurring), a case involving a conviction for aggravated criminal sexual abuse. Apparently, the last time the supreme court applied the “clear and convincing” rule to the uncorroborated testimony of a victim in the case of a sexual offense against an adult was People v. Stagg (1963), 29 Ill. 2d 415,194 N.E.2d 342.

After the decision of this court in Cole, this court in James expressly rejected the requirement that the uncorroborated testimony of a victim of a sex offense be “clear and convincing” in order to support the verdict. The opinion by Justice Knecht thoroughly explained our rationale in these words:

“We will no longer require that in a case in which a sex offense is charged, the State must demonstrate either the victim’s testimony is clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt. (See People v. Roy (1990), 201 Ill. App. 3d 166, 184-85, 558 N.E.2d 1208, 1221; People v. Cole (1990), 193 Ill. App. 3d 990, 997-1001, 550 N.E.2d 723, 728-31 (Steigmann, J., specially concurring).) Such a standard is contrary to recent Illinois Supreme Court decisions which disapprove of particularized definitions of reasonable doubt. (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344; People v. Crow (1985), 108 Ill. 2d 520, 485 N.E.2d 381.) Moreover, there is no legitimate reason to place additional requirements on the victims of sex crimes regarding how persuasive their testimony must be merely because of the nature of the crime. The testimony of no other category of crime victim is held to be automatically suspect or to require additional proof beyond the statutory requirements. The standard cited in Secret and Server is based upon sexist concepts which have no meaning.
Instead, we review the issue of whether defendant was proved guilty beyond a reasonable doubt pursuant to the same standard applied in any other criminal case. The standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.)” James, 200 Ill. App. 3d at 394-95, 558 N.E.2d at 742.

See also People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010.

In urging us to retreat from our refusal to apply the “clear and convincing” requirement for sex offense convictions based on the testimony of uncorroborated victims, defendant points out that the supreme court has never expressly abandoned that rule which it has followed until fairly recently. We recognize that. This court proceeded only after careful deliberation.

As explained in the writings of Justices Knecht and Steigmann, to which we have alluded, the supreme court has moved to a position rejecting particularized standards for determining the sufficiency of proof to convict. Notably, in People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285, that court was faced with the “clear and convincing” requirement in the absence of corroboration. After reciting past adherences thereto, that court stated: “We need not determine, however, the extent to which the standard of review in convictions of rape may be different from that in convictions of other crimes, for we are satisfied that the complainant’s testimony was corroborated here.” (Secret, 72 Ill. 2d at 376-77, 381 N.E.2d at 288.) This seems to indicate that even then, that court was questioning the continued viability of the “clear and convincing” rule.

Moreover, recently, in rejecting the reasonable hypotheses of innocence rule of review in cases where the proof of an accused’s commission of a crime is entirely circumstantial, the supreme court stated:

“Instead, we find that the reasonable doubt test as set forth in People v. Collins (1985), 106 Ill. 2d 237, 261, should be applied in reviewing the sufficiency of evidence in all criminal cases, whether the evidence is direct or circumstantial.” (Emphasis added.) (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.)

We also note that the “clear and convincing” rule has been rejected by the First District Appellate Court in People v. Byrd (1990), 206 Ill. App. 3d 996, 1006-07, 565 N.E.2d 176, 182, appeal denied (1991), 137 Ill. 2d 667, and People v. Westfield (1990), 207 Ill. App. 3d 772, 777, 566 N.E.2d 392, 395-96.

Part of the reason for this court’s rejection of the “clear and convincing” rule was that it is sexist. (James, 200 Ill. App. 3d 380, 558 N.E.2d 732.) This is particularly true in cases involving the offense traditionally described as rape. The victim there is almost always a female. The sexist aspect of the rule is less applicable to the cases where juveniles are sexually mistreated. In those cases, some of the victims are male. Defendant points this out in arguing that we could modify our stance by following the “clear and convincing” rule in the latter type of cases. Defendant contends children’s accusations are “particularly likely” to be false, unreliable, or the product of coaching by a malevolent adult. As support for this view, defendant cites Coy v. Iowa (1988), 487 U.S. 1012, 1020, 101 L. Ed. 2d 857, 866, 108 S. Ct. 2798, 2802, which questioned the constitutionality of a screen placed between defendant and the testifying child victims of sexual abuse so that he could see them but they could not see him. The issue in Coy was preservation of defendant’s confrontational rights which might reveal a false accuser or “the child coached by a malevolent adult.” Coy, 487 U.S. at 1020, 101 L. Ed. 2d at 866, 108 S. Ct. at 2802.

The right to confront -witnesses, including those who are juveniles, is available to all defendants. To the extent that juveniles are unreliable witnesses, that potential is present in all criminal cases, for all manner of offenses, but no special rule in regard to considering their testimony on review has been called to our attention. Sufficient justification does not exist to apply a “clear and convincing” rule to review of convictions based on the uncorroborated testimony of a juvenile victim. Such a rule would not conform to the reasonable doubt test of Collins.

Defendant complains that this court rejected the “clear and convincing” test in cases where the issue was raised sua sponte without the defendants having an opportunity to brief and argue the question. Regardless of the extent to which that happened, the question could have been raised upon petition for rehearing, and this defendant has fully argued the question. We continue to believe that the statements by the supreme court of a single standard for review of the evidence supporting a criminal conviction justify the decisions this court has made in regard to the “clear and convincing” rule. We will continue to follow those decisions here. Defendant has requested that upon our determination of the appeal, we should certify our decision for review by the supreme court. (Ill. Const. 1970, art. VI, §4(c).) While the question involved is important, we do not deem it to be of such importance as to require such certification. The supreme court faces an expanded number of appeals which arise as a matter of right. We need not infringe upon its exercise of discretion as to how it spends the rest of its limited time.

Our rejection of the “clear and convincing” standard of review does not mean we should not consider the evidence in this case very carefully, just as we should in all cases where the sufficiency of the evidence to convict is raised on appeal. We consider the question of whether the testimony of C.S. and S.S. each supported the other by showing a modus operandi by defendant in committing sex offenses of this nature. In People v. Taylor (1987), 153 Ill. App. 3d 710, 718, 506 N.E.2d 321, 327, quoting People v. Middleton (1976), 38 Ill. App. 3d 984, 990, 350 N.E.2d 223, 228, we noted that “ ‘evidence of a defendant’s modus operandi may be relevant not only to the issue of who committed a crime but also to the issue of whether a crime was committed at all.’ ” There, we found proof of a modus operandi could be made by evidence that a teacher had an unusual method of luring young female pupils into situations where he was alone with them. Here, the evidence of defendant’s gaining access to molest C.S. and S.S. was not sufficiently unusual or special to constitute a modus operandi and does not corroborate the testimony of the two girls.

We also consider that the testimony of C.S. and S.S. was somewhat impeached by their prior statements and inability to recall details of the alleged offenses. However, the jury could conclude that their inconsistent statements resulted from lack of care in their earlier statements. The length of time they took before relating the offenses to anyone is also a matter to be considered, but the jury might also deem this factor supportive of their testimony. The episodes they described would be embarrassing to them, thus causing them to be secretive about what happened. Moreover, a child contriving a claim of sexual abuse in order to get revenge against a live-in boyfriend of her mother would be unlikely to make the charge tardily and first to a neighbor hoping the neighbor would alert authorities.

The jury had the opportunity to view the witnesses both for the prosecution and the defense and to judge whether they were likely to be telling the truth. We cannot find that a rational jury could not find beyond a reasonable doubt that C.S. and S.S. were both telling the truth. (Jackson, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; Collins, 106 Ill. 2d 237, 478 N.E.2d 267; James, 200 Ill. App. 3d 380, 558 N.E.2d 732.) The verdicts of guilty were supported by the evidence.

Defendant’s contention that the court committed plain error in failing to instruct the jury as to the mental state the prosecution must prove defendant possessed in order to commit the crimes charged is without merit.

The jury was given an instruction which stated:

“The term ‘sexual conduct’ means any intentional or knowing touching or fondling by the accused either directly or through the clothing, of the sex organ or breast of the victim, for the purpose of sexual gratification or arousal of the victim or the accused.” (Emphasis added.)

(See Illinois Pattern Jury Instructions, Criminal, No. 11.64 (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d).) This instruction was in the language of section 12 — 12(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(e)).

The jury was then instructed as to the offenses of which both C.S. and S.S. were the victims that the State was required to prove beyond a reasonable doubt that “defendant committed an act of sexual conduct” with them. (Emphasis added.) (See IPI Criminal 2d No. 11.40 (Supp. 1987).) Those instructions also required the State to prove beyond a reasonable doubt that at the time of the acts, defendant was over 17 years of age and the victims under 13 years of age. Instructions are to be considered as a whole. (People v. Hood (1990), 203 Ill. App. 3d 289, 298, 560 N.E.2d 1187, 1194.) These instructions fully informed the jury that to find defendant guilty, he must be shown beyond a reasonable doubt to have committed an act of sexual conduct which required that he acted intentionally or, at least, knowingly.

For the reasons stated, we affirm.

Affirmed.

SPITZ and KNECHT, JJ., concur.