author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES H. DAVIS, Defendant-Appellant.
    Second District
    No. 2 — 89—1302
    Opinion filed January 9, 1992.

      G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, James H. Davis, appeals his conviction after a jury trial on two counts of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 13(a)(1), (a)(2)) and three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 16(c)(1)(ii), (d)). Concurrent sentences of four years’ imprisonment for criminal sexual assault and three years’ imprisonment for aggravated criminal sexual abuse were imposed. On appeal, defendant contends that (1) the State failed to prove guilt beyond a reasonable doubt, (2) the complainant was improperly found competent to testify, (3) the trial court erred in not granting a mistrial for the violation of a motion in limine, and (4) the State’s expert witness was improperly qualified to testify. We affirm.

On December 27, 1988, defendant was indicted on eight counts of aggravated criminal sexual abuse and four counts of criminal sexual assault. Count I was criminal sexual assault (CSA), penis to vagina and no consent. Count II was CSA, mouth to vagina and no consent. Count III was CSA, penis to vagina by force. Count IV was CSA, mouth to vagina by force. Count V was aggravated criminal sexual abuse (ACSA), penis to vagina with person at least 13 years old, but under 17 years old and defendant at least five years older than complainant (age). Count VI was ACSA, mouth to vagina and age. Count VII was ACSA, touching vagina and age. Count VIII was ACSA, touching breasts and age. Count IX was ACSA, mouth to breast and age. Count X was ACSA, touching vagina by force. Count XI was ACSA, touching breasts by force. Count XII was ACSA, mouth to breast by force. All counts alleged sexual conduct with D.S., the 17-year-old daughter of defendant’s girlfriend, M.S. D.S. suffers from Down’s syndrome and has the mental capacity of a five-year-old child.

Before trial, a competency hearing was conducted to determine D.S.’s ability to testify. The court found D.S. competent, but recognized that cross-examination would be difficult. Also before trial, the trial court granted defendant’s motion in limine barring any testimony, likely to be elicited from M.S., concerning previous allegations of sexual misconduct by defendant in March 1988. The court stated it would allow this testimony only on rebuttal.

The State’s first witness was Dr. Martin Dunsky, an emergency room physician at Copley Hospital, where D.S. was taken after the alleged incident. Dr. Dunsky testified that on October 15, 1988, at approximately 3:40 p.m., he collected specimens to complete a sexual assault kit, but was unable to perform an internal vaginal exam due to D.S.’s uncooperativeness. Dr. Dunsky asked D.S. why she was at the hospital, and she replied that defendant had kissed and licked her vagina. It was unclear from D.S.’s answers whether D.S. and defendant had intercourse or even whether D.S. was forced to perform oral sex on defendant. Dr. Dunsky testified that D.S. was calm during the interview and examination, except when a vaginal exam was attempted. He saw no signs of physical abuse on D.S. Dr. Dunsky did not examine M.S. and testified he had no occasion to determine whether M.S. had been physically abused.

D.S. was the next person to testify with assistance from an interpreter. After she stated her name, age, brother’s name and apartment number correctly, D.S. identified defendant as the person who took off her clothes. D.S. testified that Davis had kissed her on the lips, buttocks, breasts and vagina. Using anatomically correct dolls, D.S. showed how defendant allegedly took his and her clothes off, placed his penis in her vagina, kissed her breasts, licked and kissed her vagina and had D.S. perform oral sex.

On cross-examination, D.S. testified how defendant allegedly choked her, hit her on the arm and threatened her with a knife. At this point in the cross-examination, D.S.’s testimony became incoherent. It is unclear whether D.S. was recalling events that had happened to her or her mother and whether they occurred on the day in question or in the past. When D.S. regained her composure, she stated the name of the school she attended, her teacher, the names of her friends and the name of the defense attorney, whom she had previously met. On redirect examination, D.S. identified the judge and explained what she did at school. D.S. testified that defendant held down her arms and choked her. Again, it was unclear whether she was recalling the day of the alleged incident or another day in which D.S. saw defendant do this to her mother. But, D.S. reiterated that defendant kissed her vagina. On re-cross-examination, D.S. testified that her mother fought with defendant.

Milton S., the complainant’s brother, was the next witness. Milton testified that on the day in question he lived with his mother, sister, and defendant. Milton was alone in the home with D.S. when defendant arrived home at approximately 2 p.m. Defendant told Milton he could go outside but to be back by 7 p.m. Milton returned at approximately 6:30 p.m., but no one was home.

The next witness for the State was D.S.’s mother, M.S. M.S. testified that she moved to Aurora to marry defendant, but did not marry him because “something wasn’t right.” She continued to live with him though. She lived with defendant off and on for six years. According to M.S., defendant stopped living with her and the family in March 1988, but returned in July. M.S. stated that D.S. suffers from Down’s syndrome. M.S. testified that she had no conversations with D.S. about sex, until March 1988 when D.S. told M.S. about “something that happened to her that someone had did [sic] to her.”

Turning to the events of October 15, 1988, M.S. testified that she was at work that afternoon. Defendant called her at work sometime after 1 p.m. but spoke to her supervisor. At approximately 1:30 p.m., after M.S. made several mistakes at work, the supervisor told M.S. to go home. According to M.S., she took the bus to the Salvation Army, where defendant worked, to see if he was there. After discovering that he was not there, M.S. took the bus home. When she got home, she entered the apartment through the locked back door. M.S. testified that she walked into the living room and found defendant lying on the floor on top of D.S. M.S. could see defendant was wearing a light-colored shirt and that his buttocks were naked. M.S. pulled defendant off her daughter and told D.S. to put on her pants and another blouse from the clothes lying on the couch. M.S. also testified that the blouse D.S. was wearing was torn and and that M.S. threw it away. M.S. stated that she then attempted to call the police, but defendant tried to choke her with the telephone cord. M.S. pushed defendant away, and he ran into the kitchen and came out with a knife in his hand. According to M.S., she grabbed D.S. and ran out the front door to the apartment of their neighbor, Betty Yankaway.

M.S. testified that she called the police from Betty Yankaway’s apartment. M.S. says she told Betty that defendant raped D.S. When the police arrived, they spoke to D.S. M.S. said that she was too upset to speak with the police. Later, the police took D.S. and M.S. to the hospital. According to M.S., D.S. became more introverted, had nightmares, and gained weight after the incident.

Anthony Pekich, the Aurora police officer who answered the call on October 15, 1988, testified that he spoke with defendant and D.S. when he arrived. D.S. seemed nervous, fidgety and excited, but not hysterical. There was no sign of physical injury. According to Officer Pekich, M.S. also showed no signs of physical injury. M.S. told him that D.S. had her pants down and was on the couch. Defendant was on his knees with his face between D.S.’s legs. M.S. also told Officer Pekich that when she first walked into the apartment she heard defendant tell D.S. not to say anything. M.S. did not mention the torn blouse, that defendant allegedly chased M.S. holding a knife or that defendant allegedly tried to choke her with the phone cord. Officer Pekich testified that he subsequently took M.S. and D.S. to Copley Hospital to have a sexual assault kit completed. He returned to the hospital a few hours later to pick up the kit and brought it to the police station.

The final witness for the State was Linda Healey, the director of a sexual assault program at Mutual Ground in Aurora. Ms. Healey testified that she has been director of the program for two years and three months. She supervises three therapists and education specialists. She is the primary counselor and support group moderator for rape victims. Mutual Ground also provides shelter for battered women and their families. Prior to her directorship, Ms. Healey spent two years as a child assault prevention (CAP) specialist with Family Support Center in Aurora. She was trained and certified as a CAP specialist. The training program was four days long. Before that, Ms. Healey taught elementary school for 10 years. She has a BS in education from Illinois State University and is a graduate student at the Jane Addams College of Social Work, University of Chicago. Ms. Healey also testified that she has had specialized training courses to help rape victims and their families throughout the medical and legal process. She has personally seen 80 rape victims in the previous two years, ranging from the age of 3 to 89. Ms. Healey testified that she is familiar with rape trauma syndrome, which is recognized by the American Psychological Association as a traumatic stress disorder. There are no degree courses on rape trauma syndrome.

On cross-examination pertaining to Ms. Healey’s qualifications to testify as an expert witness, she testified that she has not received formal medical training and is not a clinically registered psychologist. As such, Ms. Healey is not allowed to give a clinical diagnosis. She has never before been qualified in any court as an expert witness. Ms. Healey was deemed to qualify as an expert witness, over the objection of defense counsel.

After qualifying as an expert witness, Ms. Healey testified about the five different stages of post-traumatic stress disorder, explaining that not every individual goes through every stage. Turning to the instant situation, Ms. Healey stated that she met D.S. on October 18, 1988, when D.S. and M.S. were residents at the shelter. D.S. stayed at the shelter for approximately seven days, and Ms. Healey saw her each day. According to Ms. Healey, D.S. exhibited several symptoms of someone affected by rape trauma syndrome. These symptoms included nightmares, unusual anger, mood swings, stomachaches when talking about the alleged incident and an eating disorder. D.S. had gained 35 pounds since the alleged incident. Ms. Healey testified that her opinion, based on a reasonable degree of scientific certainty, was that D.S.’s symptoms were consistent with rape trauma syndrome. She based this opinion on her own observations, those of the other counselors at the shelter and the information provided by M.S.

On cross-examination, Ms. Healey testified that she does not directly counsel children at the shelter. Her background in counseling children was limited to the area of sexual assault. She agreed that it was possible for children to exhibit symptoms similar to those of rape trauma syndrome without being sexually abused. After redirect examination of Ms. Healey, the State rested its case.

Defendant’s first witness was Laura Harrison, the nurse from Copley Hospital who helped prepare the sexual assault kit. Nurse Harrison recalled the day when D.S. and M.S. came to the emergency room. D.S. was a little anxious and tearful when she arrived. Nurse Harrison had difficulty interviewing D.S., so M.S. acted as interpreter. According to Nurse Harrison, M.S. stated that she found defendant kneeling in front of D.S., who was on the couch with her underwear down. D.S. told M.S. that he was sucking her breasts and kissing her between the legs. Defendant was wearing undershorts and a shirt. Nurse Harrison saw no signs of physical injury on D.S. Nurse Harrison did not recall M.S. stating that she saw defendant on top of D.S.

Michael Podlecki, a forensic scientist, testified that no semen or other secretions of defendant were found on any of the samples from the sexual assault kit. After Podlecki’s testimony, defendant moved for a mistrial, alleging that the State had referred to previous allegations of sexual misconduct in violation of the motion in limine. The motion was denied, but the court instructed defense counsel to raise it again in his post-trial motion. Defense counsel also moved for directed verdicts, which were granted as to counts VII, VIII, X and XI, all charging the defendant with aggravated criminal sexual abuse.

The next witness for the defense was Betty Yankaway, the complainant’s neighbor. Betty testified that on October 15, M.S. came to Betty’s apartment and asked her to call the police. Betty was in the basement and told M.S. to call the police herself. When Betty came upstairs, she saw M.S. and D.S. According to Betty, D.S. did not appear upset, but M.S. was upset. M.S. told Betty that defendant had wrapped the phone cord around M.S.’s neck and that he had a knife. M.S. also said that defendant had molested D.S. Betty testified that she saw no evidence of physical abuse on either M.S. or D.S. D.S. was not wearing a torn blouse. The police arrived approximately 5 to 10 minutes later. Betty interpreted D.S.’s statement for the police officer.

Peggy Everling, an investigator with the Department of Children and Family Services (DCFS), was the next witness. Ms. Everling testified that she took a hot-line call at approximately 6 p.m. on October 15, 1988, about a suspected case of sexual abuse. Ms. Everling called the police officer listed on the report. She also spoke with the attending nurse at the hospital and M.S. According to Ms. Everling, M.S. told her that upon arriving home M.S. entered D.S.’s bedroom and saw the defendant licking D.S.’s vagina. M.S. stated that both D.S. and defendant were naked. Ms. Everling described M.S. as sounding “a little overwhelmed” and “not calm.” M.S. told Ms. Everling that defendant tried to beat her and that M.S. and D.S. had moved out of the apartment for a while. Ms. Everling also testified that she never visited the apartment and was unfamiliar with its layout.

Michael Bertrand, the DCFS investigator who followed up on the case, testified that he was at the State’s Attorney’s office on November 23, 1988, when M.S. and D.S. were interviewed. According to Mr. Bertrand, M.S. stated that D.S. was wearing only a shirt when M.S. found her on October 15. M.S. did not mention the torn blouse or that defendant allegedly threatened M.S. and D.S. with a knife. M.S. did say that defendant was naked from the waist down and was on top of D.S. D.S. was on her back with her legs spread open and she was crying. Mr. Bertrand also recalled M.S. saying that she “lost her head” when she saw defendant and “started hitting” him.

The final witness for the defense was defendant, James Davis. He testified that he first met M.S. in 1982 and had lived with her most of that time, but they never married. He described his relationship with M.S. as “bad,” involving arguments over money and drugs. According to defendant, twice over the last five years M.S. left him alone with the children for a few days, once to seek drug treatment.

Defendant further testified that on October 15 he came home around 1:30 p.m. He called M.S. at work and spoke to her directly. He told M.S. that he let Milton go outside and play. M.S. told him she would be home in a few minutes. Defendant stated that he called his attorney about receiving disability payments. He dropped a piece of paper with the lawyer’s phone number on the floor. He was bending down to pick up the paper when M.S. walked in and asked him what he was doing. At that time, D.S. was sitting at the other end of the couch. An argument ensued, and defendant told M.S. he wanted her and her kids to move out. Defendant stated that he called 911, but the police did not come. M.S. went next door and called the police. When the police arrived, according to defendant, he was sitting on the couch in the apartment. Defendant denied that he sexually abused D.S.

Subsequently, defendant was taken from the apartment to the Aurora police station, where he spoke to Officer Greg Anderson. Defendant testified that he was not read his Miranda rights before speaking to Officer Anderson. Defendant further testified that he told Officer Anderson that he was looking for some Social Security papers when M.S. walked into the apartment. The State called Officer Anderson as a rebuttal witness, who testified that he advised defendant of his Miranda rights prior to questioning him at the station. Defendant read, initialed and signed the Miranda form.

After eight hours of deliberation, the jury returned not guilty verdicts as to counts I, III and V, the penis-to-vagina counts, and found defendant guilty on the remaining five counts. On December 8, 1989, defendant’s motion for a new trial was denied. Defendant was sentenced to four years’ imprisonment for the criminal sexual assault charge and a concurrent, three-year term for the aggravated criminal sexual abuse charge. The court set aside the verdicts on one count of criminal sexual assault and two counts of aggravated criminal sexual abuse. Defendant filed a timely notice of appeal.

Defendant first contends that the State failed to prove guilt beyond a reasonable doubt. On review, “the relevant question 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.” (In re A.J.H. (1991), 210 Ill. App. 3d 65, 71.) The standard for reviewing the sufficiency of the evidence in sexual abuse cases has changed from one where the complainant’s testimony must be clear and convincing to the reasonable doubt standard applied in all criminal cases. (People v. Schott (1991), 145 Ill. 2d 188, 202; In re A.J.H., 210 Ill. App. 3d at 70-71.) It is the function of the jury to weigh the credibility of the witnesses and resolve inconsistencies in their testimony. (People v. Eyler (1989) , 133 Ill. 2d 173, 191.) As the court stated in People v. Fields (1990), 199 Ill. App. 3d 888:

“It is well established that a reviewing court will not substitute its judgment for that of the trier of fact who heard the evidence and had the opportunity to observe the witness’ demeanor unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to defendant’s guilt.” Fields, 199 Ill. App. 3d at 901.

Defendant argues that M.S.’s testimony should be discounted because of the inconsistent versions of the incident she gave to the hospital personnel, her neighbor and the DCFS investigators. M.S. testified that she walked in and saw defendant lying on the floor on top of D.S. M.S. could not see well enough to describe specifically what acts were occurring, but saw defendant’s buttocks were “naked.” M.S. told her neighbor that defendant “molested” D.S. M.S. told Officer Pekich that D.S. had her pants down and was on the couch while defendant was on his knees with his face between D.S.’s legs. At the emergency room, M.S. told Nurse Harrison that defendant was kneeling in front of D.S., who was on the couch with her underwear down. Defendant, wearing undershorts and a shirt, was sucking D.S.’s breasts and kissing her between the legs. M.S. told the first DCFS investigator, Peggy Everling, that she entered D.S.’s bedroom and saw defendant licking D.S.’s vagina. According to M.S., both defendant and D.S. were “naked.” Later, M.S. told the other DCFS investigator, Michael Bertrand, that defendant was naked from the waist down and was on top of D.S.

In M.S.’s testimony, there are conflicting statements about the exact positioning of defendant and D.S. The critical elements that remain consistent throughout M.S.’s testimony are that defendant was “over” D.S., both were in a state of undress and defendant was in close proximity to D.S.’s exposed body. M.S. did not tell any of the witnesses that she saw defendant having “intercourse” with D.S. As such, the jury found defendant not guilty as to the penis-to-vagina counts, despite the testimony of D.S.

Defendant also argues that D.S.’s testimony was unreliable. D.S. testified that defendant kissed her on the lips, buttocks, breasts and vagina. She also stated that defendant placed his penis in her vagina and her mouth, demonstrating with anatomically correct dolls. Dr. Dunsky, the emergency room doctor, corroborated part of this testimony when he testified that D.S. told him that defendant kissed and licked her vagina. But, there were moments in D.S.’s testimony when she was confused by the questions asked. She gave conflicting accounts about the specific acts performed by defendant. Notwithstanding her inconsistent testimony, she remained clear concerning the identity of defendant, the fact that she was undressed and that defendant was in some way sexually abusive. What specific sexual acts were performed was a question of fact for the jury to decide based on the testimony of D.S., M.S. and the corroborating witnesses. There was enough evidence provided by the witnesses for the jury to determine that sexual abuse occurred.

Defendant relies on People v. Findlay (1988), 177 Ill. App. 3d 903. There, the defendant was charged with five counts of aggravated criminal sexual abuse. The five counts alleged five separate occurrences of sexual misconduct. Two counts were nol-prossed by the State. At trial, significant impeachment evidence was presented on the other three counts. The court found the defendant guilty on only one count. On review, this court held that the “pervasiveness of the impeachment” supported the conclusion that the complainant’s testimony failed to meet the then “clear and convincing standard.” There was substantial evidence by two other witnesses that the alleged sexual abuse detailed in count III did not occur.

We find the Findlay case distinguishable from the instant case. First, as we noted earlier, the standard of review for sexual abuse cases has changed significantly since that decision. Notwithstanding that change, the defendant’s testimony in Findlay was substantially corroborated by two witnesses who were sleeping only a few feet from the room in which the incident allegedly occurred. They testified that they heard no noises coming from the room. Moreover, one of the witnesses was awake at the exact time the incident allegedly occurred.

Here, defendant provides no independent corroboration of his story, as the defendant in Findlay did. Instead, defendant argues that since the jury believed the impeachment evidence as to penis-to-vagina contact and rendered not guilty verdicts on those counts, the “pervasiveness of the impeachment” called for not guilty verdicts on the mouth-to-breast and mouth-to-vagina counts. In Findlay, there was doubt whether an entirely separate incident of abuse occurred based on strong evidence by third-party witnesses. Here, there was no independent evidence that nothing happened. Absent the testimony of defendant, the evidence pointed to the fact that something happened. The jury was there to weigh the credibility of the witnesses and determine what happened. We hold that there was sufficient evidence for the jury to find defendant guilty on the mouth-to-breast and mouth-to-vagina counts.

Defendant’s second contention is that the trial court abused its discretion in finding D.S. competent to testify. A determination of competency by the trial judge should not be set aside absent an abuse of discretion or when based on a manifest misapprehension of a legal principle. People v. Lawler (1989), 181 Ill. App. 3d 464, 468.

Defendant relies on People v. Wolfe (1988), 176 Ill. App. 3d 299, and People v. Born (1987), 156 Ill. App. 3d 584, to support his contention that D.S. was incompetent to testify. In Wolfe, a five-year-old child was found incompetent to testify. The child knew her age, but not her birthdate. She could not recall whether she had a party on her last birthday, but could recall the previous Christmas. She knew she lived in Illinois, but could not recall in which town she lived. She named her school, but could not say how long she had attended. She gave correct examples of telling the truth versus lying. The court affirmed the lower court’s finding of incompetency without analysis, but stated the test to determine competency:

“[Competency *** must be judged on whether [a child] is sufficiently mature to (1) receive correct impressions from [the] senses; (2) recollect those impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth.” Wolfe, 176 Ill. App. 3d at 301.

In Born, another five-year-old child was found competent where she knew the name of her older brother’s school, that her brother was on summer vacation, the names of her preschool teachers from the previous year, the names of other children in her class, her favorite game, the name and breed of her dog, the type of car her parents owned and the street on which her grandparents lived. She also understood the difference between the truth and a lie, which was determined after some contradictory responses. (Born, 156 Ill. App. 3d at 588.) The court held that one imperfect response concerning truthfulness would not invalidate a competency finding in light of the totality of her responses. Defendant argues that this case is distinguishable because D.S. was not asked questions as difficult and her answers were less clear.

The trial court in the case at hand found People v. Spencer (1983), 119 Ill. App. 3d 971, persuasive. There, the victim was a mildly to moderately retarded adult, who was unable to communicate verbally. She answered questions with the use of a board containing the alphabet, numbers, days, weeks, and the like. When questioned about the crime, she gave confusing and conflicting answers concerning time periods, what she was wearing and whether she had seen the defendant prior to the alleged rape. The defense had some difficulty cross-examining the victim because she was less attentive at the end of her testimony. Spencer, 119 Ill. App. 3d at 977.

The defendant in Spencer appealed his conviction arguing, inter alia, that he was denied the right to confront the witness because the victim’s mental retardation and inability to communicate verbally prevented adequate cross-examination. The court stated that the defendant was implicitly attacking the witness’ competency and stated:

“We have repeatedly held that a witness suffering from mental impairment such as retardation [citation] is legally competent to testify so long as he has the capacity to observe, recollect, and communicate.” (Spencer, 119 Ill. App. 3d at 977.)

The court further held that “confusing and conflicting” answers given by the witness “go to *** credibility, not *** competency.” Spencer, 119 Ill. App. 3d at 977.

In the pretrial hearing, D.S. showed an adequate ability to observe, recollect and communicate. D.S. knew her name, her age, her birthdate, her brother, his age, her mother, and the school she attends, but did not know how long she had been attending. She recognized the judge and repeatedly said to “tell the truth.” From the record, it is evident that the trial judge thoroughly analyzed the case law presented to him and carefully distinguished other cases before relying on Spencer. We hold the trial judge’s reliance on Spencer and his ruling of competency were not an abuse of discretion.

Defendant invokes People v. Epps (1986), 143 Ill. App. 3d 636, 640, for the proposition that the competency issue is determined not only by the pretrial hearing, but the trial testimony as well. At trial, D.S. repeated many of the same answers to foundational questions asked of her to determine competency in the pretrial hearing. D.S. did indeed give conflicting and confusing testimony, primarily concerning what defendant had done to her on the day in question as opposed to what he had done to D.S. in the past or what D.S. had seen defendant do to her mother. We find that whatever discrepancies occurred reflect solely on her credibility.

Defendant’s third contention is that the trial court erred in denying his motion for a mistrial based on the alleged violation of his motion in limine. He claims the State violated the motion by presenting evidence linking him to previous allegations of sexual misconduct in March 1988. The decision by the trial judge to declare a mistrial is not subject to reversal absent an abuse of discretion. (People v. Wills (1987), 153 Ill. App. 3d 328, 339.) On appeal, the defendant must show that the prejudicial effect on the jury resulting from the violation of the motion in limine was so great as to constitute reversible error. Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 583.

Defendant relies on the case of People v. Sorice (1989), 182 Ill. App. 3d 949, as analogous to this situation. There, the court barred the State from introducing any evidence pertaining to defendant’s alleged involvement in the attempted burglary of a currency exchange. On direct examination, the State elicited testimony from an individual, allegedly involved in defendant’s illegal activities, that the defendant “mentioned something about a screw-up with a currency exchange.” (Sorice, 182 Ill. App. 3d at 957.) The court held that a new trial was not required, but would have been if it was a close case on the issue of guilt. Sorice, 182 Ill. App. 3d at 957-58.

Defendant argues that this is a close case on the issue of guilt, so the motion for mistrial should have been granted. But, defendant fails to show how this reference prejudiced the jury. In Sorice, the witness explicitly stated that it was the defendant who made that statement. Also, the currency exchange was mentioned. Here, defendant’s name was not associated with the March 1988 incident when D.S. told M.S. about a sexual situation she had experienced. Also, the situation was not couched as one of sexual misconduct, only that “something that happened to her that someone had did [sic] to her.” The prejudicial effect of this statement is at best speculative. Thus, the trial judge did not abuse his discretion in denying the motion for mistrial.

Finally, defendant contends that the State’s expert witness, Linda Healey, was improperly qualified to testify. An expert is a person who, because of special training or experience, possesses knowledge greater than that of an average person on a particular subject. (Mobil Oil Corp. v. City of Rolling Meadows (1991), 214 Ill. App. 3d 718, 727.) Absent an abuse of discretion, the trial court’s determination that an expert is qualified to give an opinion will not be overturned. (People v. Free (1983), 94 Ill. 2d 378, 410.) The credibility and weight of an expert’s testimony are matters to be decided by the trier of fact. Elliott v. Koch (1990), 200 Ill. App. 3d 1, 12.

Defendant acknowledged that Illinois recognizes expert testimony about rape trauma syndrome (see Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7.2), but attempts to persuade this court that Ms. Healey was unqualified to testify in this instance because of her unfamiliarity with Down’s syndrome individuals. As a preliminary matter, defendant cites in his brief a number of scientific articles pertaining to the behavioral characteristics of Down’s syndrome individuals. Notwithstanding our June 25, 1991, denial of a motion to strike appendix B of the defendant's brief, this court will not acknowledge the appendix. Attachments to a brief which are not part of the record on appeal are not properly before the reviewing court. People v. Lutz (1982), 103 Ill. App. 3d 976, 979-80.

The director of a rape counseling center, the position held by Ms. Healey, has been found qualified as an expert in the area of rape trauma syndrome. (People v. Douglas (1989), 183 Ill. App. 3d 241.) In fact, the expert in Douglas had credentials very similar to those of Ms. Healey. The director in Douglas had been executive director of the center for three years. She had an undergraduate degree in liberal arts. She attended graduate school for training in counseling. She received specialized training in rape trauma counseling, including training on rape trauma syndrome. She did not have a psychology degree. Douglas, 183 Ill. App. 3d at 254.

Based on the Douglas case, we find that the trial judge did not abuse his discretion in qualifying Ms. Healey to testify about rape trauma syndrome. The fact that she had no knowledge of the general behavioral characteristics of people suffering from Down’s syndrome does not negate her qualifications to testify about rape trauma syndrome. “[T]he reality that many of the [post-traumatic stress syndrome] symptoms may be caused by factors other than sexual abuse goes to the weight to be accorded such testimony and not its admissibility.” (People v. Wasson (1991), 211 Ill. App. 3d 264, 270-71.) Nothing prevented defendant from impeaching Ms. Healey on this point or providing an expert on Down’s syndrome to explain such behavior.

For the foregoing reasons, the convictions of defendant are affirmed.

Affirmed.

WOODWARD and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    AARON J. BLUE, Plaintiff-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Defendant-Appellee.
    Second District
    No. 2 — 91—0434
    Opinion filed January 9, 1992.
    Rehearing denied February 18, 1992.

      Robert Z. Blue, pro se, of Mt. Prospect, and William L. Barr, Jr., of Bell, Boyd & Lloyd, of Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield, and Michael J. Waller, State’s Attorney, of Waukegan (Rosalyn B. Kaplan, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Robert Z. Blue, a nonlawyer proceeding pro se, filed a “Complaint for an Order of Habeas Corpus” (complaint) in the name of his minor child, plaintiff Aaron J. Blue, with the circuit court of Lake County. The complaint alleged that plaintiff was being held in custody without due process of law by his mother, Susan Fisher, as the result of certain visitation orders entered by the circuit court of Cook County in Robert and Susan’s pending dissolution of marriage suit. The trial court dismissed the complaint pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (section 2 — 619(a)(3)) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3)), which provides for involuntary dismissal where there is another action pending between the same parties for the same cause. On appeal, plaintiff argues that the trial court abused its discretion in dismissing the action for habeas corpus.

We strike plaintiff’s briefs, dismiss the appeal, and hold that the proceedings below were void and must be vacated. As a nonlawyer who is not a party to this suit, Robert Blue may not represent plaintiff in this court and had no authority to do so at the trial level.

Robert Blue filed the complaint pro se. After the trial court dismissed the complaint under section 2 — 619(a)(3), Blue filed a notice of appeal, an appellant’s brief and a reply brief, all “pro se” as “Father of Appellant.” Approximately three weeks after the reply brief was filed, William L. Barr, Jr., an attorney, filed his motion for leave to appear as attorney for plaintiff. This court allowed the motion, and Barr entered his “additional appearance” for plaintiff.

One not duly authorized to practice law may not represent another in a court of law. (Ill. Rev. Stat. 1989, ch. 13, par. 1; National Bank v. First Wisconsin National Bank (1977), 53 Ill. App. 3d 482, 488-89.) Lay people may appear only in their “proper persons” (Ill. Rev. Stat. 1989, ch. 13, par. 11), i.e., only on their own behalf. (National Bank, 53 Ill. App. 3d at 489.) A pleading signed by a person who is not licensed to practice law in this State is a nullity even if a duly licensed attorney subsequently appears in court. (Fruin v. Northwestern Medical Faculty Foundation, Inc. (1990), 194 Ill. App. 3d 1061, 1063.) Where one not licensed to practice law has instituted legal proceedings on behalf of another, the suit should be dismissed; if the suit has proceeded to judgment, the judgment is void and will be reversed. Leonard v. Walsh (1966), 73 Ill. App. 2d 45, 47.

That Robert Blue has labeled himself “pro se” does not bring this case within the right of a party to represent himself. Robert Blue is at most the “next friend” of the minor plaintiff. A next friend is not a party to a suit but represents the real party, who, as a minor, lacks the capacity to sue in his own name. Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515, 520; Clarke v. Chicago Title & Trust Co. (1946), 393 Ill. 419, 430-31; Hoare v. Harris (1849), 11 Ill. 24, 25; 27 Ill. L. & Prac. Minors §71, at 54; §74, at 57 (1956).

Although we have found no published opinion from this State addressing this particular set of circumstances, we believe that the authority set out above compels the conclusion that one not authorized to practice law may not represent a minor in a court of record. We note that several Federal courts have addressed this precise issue and have held that the Federal right to self-representation does not allow a nonlawyer next friend to represent a minor. (See Cheung v. Youth Orchestra Foundation of Buffalo, Inc. (2d Cir. 1990), 906 F.2d 59; Meeker v. Kercher (10th Cir. 1986), 782 F.2d 153, 154; Lawson v. Edwardsburg Public School (W.D. Mich. 1990), 751 F. Supp. 1257, 1258-59.) The Cheung court explained that allowing a nonlawyer parent to sue in the name of his minor child without obtaining counsel does not promote the interest in free choice that underlies the right of a party to self-representation. Furthermore, allowing those without proper legal training to represent minors undermines the full protection of the minors’ legal rights and “also invites abuse, as the present case may demonstrate.” (Emphasis added.) (Cheung, 906 F.2d at 61.) We agree fully with this reasoning.

As Robert Blue was neither authorized to bring this action “pro se” nor to file the briefs that he filed in connection with this appeal, we strike the briefs on appeal and hold that the proceedings below are void and of no effect. We therefore dismiss the appeal and vacate the judgment of the circuit court.

The appeal is dismissed, and the judgment of the circuit court of Lake County is vacated.

Appeal dismissed; judgment vacated.

GEIGER and NICKELS, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    SHEILA ROACH et al., as Parents and Next Friends of Their Minor Daughter, Kayla Roach, Plaintiffs-Appellants, v. SPRINGFIELD CLINIC et al., Defendants-Appellees.
    Fourth District
    No. 4 — 91—0103
    Opinion filed December 13, 1991.
    Rehearing denied February 20, 1992.

      Alexandra de Saint Phalle, of Londrigan, Potter & Randle, P.C., of Springfield, for appellants.
    Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, Gary M. Peplow, of Heyl, Royster, Voelker & Allen, of Peoria, and Adrian E. Harless, of Heyl, Royster, Voelker & Allen, of Springfield (James E. Neville and Karen E. Mason, of counsel), for appellee Springfield Clinic.
    Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (James E. Neville and Karen E. Mason, of counsel), for appellee E. Michael Bradley.
    Paul Brown and Denise M. Druhot, both of Brown, Hay & Stephens, of Springfield, for appellee Memorial Medical Center.
    Gary M. Peplow, of Heyl, Royster, Voelker & Allen, of Peoria, and Adrian E. Harless, of Heyl, Royster, Voelker & Allen, of Springfield, for appellee Michael Zinzilieta.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On February 6, 1988, plaintiffs Sheila and Timothy Roach, as parents and next friends of their minor daughter Kayla Roach, filed suit in the circuit court of Sangamon County against defendants Springfield Clinic (Clinic), Memorial Medical Center (Memorial), Michael Zinzilieta, M.D., and E. Michael Bradley, M.D. The complaint sought compensatory damages for injuries to the minor and alleged these injuries resulted from medical malpractice by the various defendants. After a jury trial, the court entered judgment in October 1990 on a verdict in favor of all defendants and against plaintiffs. Plaintiffs have appealed requesting a new trial. We affirm.

The case was tried on plaintiffs’ third-amended complaint, which alleged that the malpractice occurred while defendants were providing medical services in connection with the birth of the minor child to her mother, plaintiff Sheila Roach, on January 11, 1987. After trial, plaintiffs were permitted to file a fourth-amended complaint which alleged, inter alia, (1) defendants were negligent in failing to perform a cesarian section (C-section) earlier in the delivery of the minor plaintiff; (2) defendants were negligent, once the decision to perform a C-section was made, in not performing the operation more quickly; (3) as a result of defendants’ negligence, the minor plaintiff suffered severe brain damage and has permanent brain injury and cerebral palsy.

On appeal, plaintiffs maintain the court erred in (1) excluding evidence; (2) instructing the jury; and (3) denying a new trial when, after trial, an affidavit was presented stating that one of the jurors was the spouse of a patient of defendant Dr. Zinzilieta. Plaintiffs also maintain cumulative error and discovery violations by defendants require a new trial. Plaintiffs do not contend that the strength of the evidence requires a judgment in their favor, but the following summary of the evidence is necessary for understanding of the issues raised.

Defendant Dr. Edward Bradley testified at trial that (1) he was a member of the Clinic and the obstetrician for plaintiff Sheila Roach for the birth of Kayla Roach; (2) she had no problems with her pregnancy, at least through January 5, 1987; (3) the fetus had normal fetal heart tones at each of the prenatal visits conducted by Dr. Bradley; (4) when Dr. Bradley saw Sheila on January 5, she was six days beyond her due date of December 31, 1986; (5) Dr. Bradley scheduled Sheila to have a “non-stress test” on January 10, 1987, to determine the baby’s status; (6) Sheila did not deliver by the 10th and entered Memorial for that test; (7) a resident, Dr. Kintner, performed the non-stress test as well as a sonogram and vaginal exam and determined there was “decreased fetal movement [and] that the non-stress test was non-reactive” which meant a “potential” for fetal distress; and (8) based on the test results, Bradley decided to admit Sheila to the hospital and attempt to deliver her vaginally, with continuous fetal monitoring, by the use of pitocin to induce uterine contractions. Dr. Bradley described the “non-stress test” as a monitoring of the fetal heart beat while the mother was not under physical stress.

Dr. Bradley further testified that (1) throughout the time the pitocin was administered to induce delivery, Sheila was monitored with use of continuous electronic fetal monitor and assessment by nursing personnel and residents; (2) at 12:30 p.m. on January 10, 1987, he reviewed the fetal monitor strips, determined no signs of fetal distress existed, and continued the plan of vaginal delivery induced with pitocin; (3) at approximately 6 p.m. on January 10, Bradley spoke with Kintner and was advised that Sheila continued to have contractions, that there were intermittent periods of increased and decreased fetal heart rate variability, but there were no signs of fetal distress; (4) he then decided to continue inducing with pitocin until 8 p.m., when it would be discontinued to allow Sheila to eat and sleep for the evening and resume inducing her the following morning; (5) after the pitocin was stopped, Bradley was advised by Kintner that Sheila was continuing to have contractions, and there were no signs of fetal distress; and (6) Bradley was not advised of any problems throughout the night or morning of January 11, 1987, and his involvement with her treatment ended at 8 a.m. on January 11.

Defendant Dr. Zinzilieta was also shown to be a member of the Clinic and an obstetrician. Evidence also showed he took over the treatment of Sheila Roach at 8 a.m. on January 11, 1987, and, at that time, spoke with Dr. Putnam, the obstetrical resident who had then assumed the responsibility to Mrs. Roach previously undertaken by Dr. Kintner. Dr. Zinzilieta testified that at that time he reviewed the nurses’ notes, physicians’ notes, and the fetal monitor strips generated that morning, as well as those recorded the previous day, he determined that Drs. Bradley and Kintner’s assessment of no fetal distress was correct, and decided to continue inducing the labor. He testified he performed a vaginal examination of Mrs. Roach and concluded she was making progress and was going into the active phase of labor.

Dr. Zinzilieta further testified that during his vaginal examination, he felt an irregular structure above the cervix which might have been a hand or possibly a breach presentation. He said he was able to determine the structure was not the umbilical cord. He said he recognized the potential for a prolapsed cord (a prolapsed cord occurs when the umbilical cord drops below the baby’s head into the birth canal and cuts off all oxygen supplied to the baby as the baby comes through the vagina). Dr. Zinzilieta said he performed a sonogram and was able to rule out a hand or breach presentation.

Dr. Zinzilieta testified that after completing his examination, he discussed the management plan with Dr. Putnam, apprised Memorial of the potential for an emergency C-section, if increased fetal distress were noted or if a prolapsed cord became evident. He testified that he personally instructed Memorial nurses to prepare for a C-section and to alert the anesthesia department in case they were needed in an emergency situation. He stated he then left Memorial hospital at 10 a.m. to conduct rounds at St. John’s Hospital. Dr. Zinzilieta said he did not perform a C-section at that time, because there were no indications that a C-section was the right thing to do for Sheila Roach or her baby. Helen Sponsler, who was one of two nurses caring for Sheila Roach, testified she was not informed to be prepared for a C-section at the time to which Dr. Zinzilieta referred.

The evidence was also undisputed that at 11:30 a.m. the baby’s heart rate suddenly dropped below normal. The labor chart indicated Kayla’s heart rate dropped from 140 beats per minute to 120 and then to 70 beats in less than three minutes. At 11:33 a.m. the heart rate dropped to 50 beats per minute and Dr. Putnam, the resident on duty, was called. By 11:35 Putnam was present and examining Sheila. He testified that a heart rate of 60 to 70 beats per minute or less would cause the baby to sustain brain damage within 10 minutes.

The hospital chart indicated that at 11:35 a.m. Zinzilieta, the anesthesia department, and the anesthesiologist, Dr. Gotanco, were called. Nurse Sponsler testified the times were approximate, since they were reconstructed after the child’s birth at 11:51 a.m. The chart further indicates the baby’s last audible heart beat was heard at 11:37 a.m., and at 11:38, Putnam took Sheila Roach to the operating room. Dr. Zinzilieta arrived in the C-section room at approximately 11:44. He said that upon his arrival in the C-section room, preparations for the C-section were in progress and the first surgical incision was made at 11:47 a.m. The anesthesiologist and nurse anesthetist had not been notified at this time and Dr. Zinzilieta proceeded under local anesthetic. Kayla was delivered at 11:51 a.m. with the umbilical cord wrapped so tightly around her neck that it had to be clamped and cut rather than unwrapped.

Dr. Gotanco and nurse anesthetist Mike Funk testified that they did not receive the initial call at 11:35 a.m., although Dr. Gotanco was in the call room equipped with an emergency pager and Mike Funk was in the anesthesia lounge reading a newspaper. Both testified that they had not been forewarned of the potential emergency. Funk testified that he received notice at approximately 11:47 a.m. and arrived in the operating room at 11:50.

Dr. Kozak, Kayla Roach’s pediatrician, testified that at birth, the infant was not breathing, there was no heart tone, and the baby was “next to being dead.” Resuscitation efforts were begun. Five minutes elapsed before a heart rate of 20 to 30 beats per minute was obtained, and a normal heart rate was first reached at 10 minutes of age.

A child neurologist, Michael Noetzel, called by plaintiffs, testified Kayla has cerebral palsy and brain damage which is permanent. Dr. Noetzel stated that, in his opinion, Kayla’s palsy and brain damage resulted from a lack of oxygen just before birth. Various doctors testified on behalf of the defendants, giving opinions indicating no malpractice occurred.

Most of plaintiffs’ proof of malpractice by the two obstetricians came from the testimony of Dr. Stuart Weiner, an obstetrician and gynecologist called by plaintiffs. He described Memorial hospital as a facility equipped and staffed to handle any type of pregnancy complication. He agreed with testimony by the defendant doctors that the American College of Obstetricians and Gynecology standards for a facility of this nature included a “minimum start up time” of 30 minutes or less for proceeding with an emergency C-section but further testified that those standards required, in a case where the anesthesiologist and physician are available in-house, that a C-section should be started in “a matter of minutes, at most five to ten” minutes. Weiner also testified that the risk to the mother is minimal when a C-section is performed.

Dr. Weiner noted that Sheila Roach had entered the hospital on January 10 after having noted a decrease in fetal movement since 9 p.m. the previous evening. He stated this lack of fetal movement merely indicated the possibility of a problem. Dr. Weiner expressed an opinion that further testing should have been done before starting to induce labor and during the time pitocin, the labor-inducing drug, was being given. Based upon his examination of the strip registering the fetal monitoring on January 10, he expressed an opinion that the situation was “worrisome” enough that a C-section should have been performed that day. However, he admitted on cross-examination that based on the information available on January 10, the professional standards he had previously referred to would not have required the performance of a C-section. Weiner further stated that, in his opinion, the delay in performing the C-section contributed to the baby’s bad condition but he could not tell when the neurologic damage occurred by examining the fetal monitoring strip.

Dr. Weiner further testified on cross-examination that he did not believe the cord tightening around the baby’s neck was the cause of the injury to the baby. Rather, he concluded, the damage was caused by the baby being so far overdue that the placenta was insufficient to support the fetus. On redirect examination, Weiner stated that the standard time for performing a C-section at a hospital such as Memorial is 15 to 20 minutes from the time the decision to do so is made until delivery, but here the C-section should have been performed more rapidly because defendants were aware of potential problems long before the final drop in the fetal heart rate.

As far as plaintiffs’ case against Memorial is concerned, plaintiffs’ most serious claim of error arises from the circuit court’s sustaining an objection to a question asked by plaintiffs of Michael Funk, a nurse anesthetist for Memorial who participated in the delivery. In order to understand the significance of these rulings, consideration of the testimony of Connie McLean, a registered nurse for Memorial who was working in the labor and delivery department at Memorial at the time of the C-section, is required. She testified she then had been working in that department for only three months and was in a period of “orientation.” She further stated that at approximately 11:30 a.m. on January 11, she noticed that a monitor indicated fetal heart times in a patient awaiting delivery had decreased and that two nurses went into the room and then came out pushing a bed with a patient on it. McLean stated the nurses requested her “to call Dr. Zinzilieta and anesthesia.”

McLean testified that upon receiving the above instructions, she had Zinzilieta paged and then called a number for the anesthesia room but got no answer, so she paged Dr. Gotanco, the anesthetist on call. She stated that when she got no response “[ajnesthesia was paged overhead” and then someone made her aware that an “anesthetist was in the room,” so she stopped calling. On cross-examination, McLean testified she never had any “run through” as to how to respond when an emergency C-section was required. She also testified nobody had talked to her earlier that day in regard to an emergency C-section occurring.

Prior to McLean’s testimony, Funk had been called by plaintiffs under section 2 — 1101 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1101) to testify as if under cross-examination. He stated that prior to 11:47 a.m. on January 11, 1987, he received no warning of the possible need of Sheila Roach for a C-section and was first advised of that emergency by a phone call while he was sitting in anesthesia’s combination workroom-lounge, where he would be expected to be when not “performing a procedure.” He stated he did not take the call himself. He explained that when he arrived in the operating room, surgery was in progress and the patient was conscious. He gave her a general anesthetic, and in about V-k minutes, the baby was delivered. Plaintiffs’ counsel then asked Funk if he had ever been told by Dr. Draper, Memorial’s chief of anesthesia, why the delay occurred in notifying him of the emergency need for his services.

Memorial objected to the question on the basis of hearsay and a privilege arising from sections 8 — 2101 and 8 — 2102 of the Code (Ill. Rev. Stat. 1989, ch. 110, pars. 8 — 2101, 8 — 2102). In making an offer of proof, out of the presence of the jury, the following colloquy took place:

“Q. [By plaintiffs’ counsel:] Mr. Funk, did you have occasion to discuss the matter of a delay with Dr. Draper?
A. Yes.
Q. And what did he advise you as to the reason for the delay?
A. He told me that the reason for delay was that there were some, either one or two, new secretaries down in the OB [obstetrics] department.
Q. And he indicated they didn’t know the proper method or the most effective method of paging you?
A. Yes.”

Funk then acknowledged that (1) the conversation took place on Memorial’s seventh floor two or three days after the child’s birth; (2) Dr. Draper had asked if he “had a minute to spare”; and (3) their discussion concerned the events of January 11, 1987. Funk indicated Dr. Draper started the conversation and it was conducted on an informal basis.

Memorial seeks to justify the circuit court’s rejection of the offered evidence upon the basis of the foregoing Code provisions which it raised in its objections. Section 8 — 2101 of the Code states in pertinent part:

“Information obtained. All information, interviews, reports, statements, memoranda or other data of *** health maintenance organizations, physician-owned inter-insurance exchanges and their agents, or committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting, or revoking staff privileges ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 8-2101.)

Section 8 — 2102 of the Code provides:

“Such information, records, reports, statements, notes, memoranda, or other data, shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person. The disclosure of any such information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.” Ill. Rev. Stat. 1989, ch. 110, par. 8-2102.

The purpose of the foregoing legislation “is to encourage candid and voluntary studies and programs used to improve hospital conditions and patient care or to reduce the rates of death and disease” by making “such studies or programs” confidential. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937, 942.) In denying plaintiffs’ offer of proof, the circuit court indicated plaintiffs had the burden of showing the evidence offered did not come within the privilege. However, generally the burden of showing that a privilege bars the introduction of relevant evidence is on the party objecting to the evidence. (Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 419-20, 337 N.E.2d 15, 17; Krupp v. Chicago Transit Authority (1956), 8 Ill. 2d 37, 42, 132 N.E.2d 532, 536.) That rule has been applied to the privilege asserted here. Ekstrom v. Temple (1990), 197 Ill. App. 3d 120, 127, 553 N.E.2d 424, 428.

Here, Memorial offered very little evidence to support the existence of the privilege. Nevertheless, the information that inexperienced personnel who were unfamiliar with proper paging technique were the cause of the delay was “information *** of” the medical staff of an “accredited hospital” within the meaning of section 8 — 2101 of the Code. (Ill. Rev. Stat. 1989, ch. 110, par. 8— 2101. ) The information was voluntarily disclosed by Dr. Draper but section 8 — 2102 of the Code expressly provides that “disclosure of any such information *** shall not waive or have any effect upon its *** nonadmissibility.” (Ill. Rev. Stat. 1989, ch. 110, par. 8— 2102. ) The more difficult question is whether the information was “used in the course of internal quality control *** for the purpose of *** improving patient care” within the meaning of section 8— 2101 of the Code. Ill. Rev. Stat. 1989, ch. 110, par. 8 — 2101.

Nothing presented to the court at the time of the offer of proof indicates how Dr. Draper acquired his information. However, the parties acquiesced in consideration by the court of information contained in depositions and other documents previously filed in the case. These documents had been considered by a judge — who did not try the case — in ruling upon an in limine motion in regard to the same evidence. In a deposition, Dr. Draper stated he did not remember whether he made the statement attributed to him by Funk but would not have made the exact statement attributed to him because the person involved in the paging was not new. Dr. Draper did state that the purpose of his questioning persons about the alleged delay in the furnishing of general anesthesia to Sheila Roach was to assure quality in the services rendered by the department of which he was the chief, and this was part of his job.

The information acquired by Dr. Draper purportedly to assure quality in service was not part of a formal report as was held to be privileged in Flannery v. Lin (1988), 176 Ill. App. 3d 652, 531 N.E.2d 403, and Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 522 N.E.2d 273, but we conclude that material privileged under the instant legislation need not be part of a formal report.

In contending the information involved here was not privileged, plaintiffs rely on Ekstrom (197 Ill. App. 3d at 127, 553 N.E.2d at 428), Willing v. St. Joseph Hospital (1988), 176 Ill. App. 3d 737, 531 N.E.2d 824, and Marsh v. Lake Forest Hospital (1988), 166 Ill. App. 3d 70, 519 N.E.2d 504. In Ekstrom, the court determined that documents produced for other than internal quality control or medical study activities were not subject to privilege. In Willing, privilege was denied to (1) applications for appointment to staff; (2) initial privileges granted and any and all changes to the privileges, including restrictions and revocations; and (3) all physicians’ letters of resignation or withdrawal as they pertained to a doctor defendant, whether prior to or after the operation in question — except those connected to peer-review procedures. In Marsh, privilege was denied to reports of polygraph tests of nurses in connection with allegations that the nurses had altered records involved with the death of a patient. In none of the cases was the information involved connected to internal quality control, as was the case here. Only Marsh comes close to this, and there the focus of the investigation seemed to be more toward placement of blame rather than to study procedures for improving care to patients.

The next issue to be considered concerns not only the exclusion of evidence but also plaintiffs’ contention that they should be granted a new trial because of discovery violations. The record supports plaintiffs’ assertion that early in the case Memorial gave false or improper information in response to plaintiffs’ discovery requests. The circuit court then imposed sanctions upon Memorial for this conduct. In support of plaintiffs’ theory that they are also entitled to a new trial, they cite Varady v. Guardian Co. (1987), 153 Ill. App. 3d 1062, 506 N.E.2d 708, where a new trial was awarded a party when the noncompliance with required discovery by an opposing party was not discovered until the second day of a jury trial. Here, Memorial gave proper discovery information more than three months prior to the first day of trial and made all payments imposed against it as a sanction. Plaintiffs assert they were particularly prejudiced in their preparation for trial because the false answers misled one of their expert witnesses. However, plaintiffs had adequate time to see that witness had correct information. As plaintiffs had adequate time to make corrections necessitated by the false information, and because Memorial made the reimbursements required as a sanction, a further sanction of the grant of a new trial is not appropriate.

Plaintiffs further correctly point out that a party’s furnishing false information has been held admissible as an admission, by conduct, of guilt. (Lubbers v. Norfolk & Western Ry. Co. (1983), 118 Ill. App. 3d 705, 711-12, 454 N.E.2d 1186, 1190-91, aff’d (1985), 105 Ill. 2d 201, 473 N.E.2d 955.) Plaintiffs offered in evidence the false discovery information furnished by Memorial. We need not determine whether that rule was applicable here, because we have not been advised of any place in the record which indicates these records were offered for this purpose. Rather, certain records of this nature were offered to explain the testimony of plaintiffs’ expert witness, Dr. Weiner, because he relied on some of the misinformation in forming his opinions. Plaintiffs never laid a foundation for use of this information by asking Dr. Weiner if this information would change his opinion. The circuit court properly sustained objection to the offer of this evidence.

Plaintiffs further contend the court erred in refusing to admit into evidence a statement made by Phyllis Dentinger in a deposition she had given in another case. At the time of that deposition, and at the time of the occurrence here, she was a registered nurse employed by Memorial and managing nurse for labor and delivery services. In that deposition she stated “the situation of a prolapsed cord would be a life and death situation that we would have to do a cesarean within ten minutes.” Plaintiffs maintain this statement constituted an admission by a party opponent admissible as an exception to the hearsay rule. Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 115, 199 N.E.2d 769, 794; Doherty v. Kill (1986), 140 Ill. App. 3d 158, 162, 488 N.E.2d 629, 632 (admission made by party in another case admissible in instant case).

The record does not contain the offer of or the objections to the excerpt from Dentinger’s deposition. In the absence of a record, some inference arises that the court proceeded properly. (Libco Corp. v. Roland (1981), 99 Ill. App. 3d 1140, 1147-48, 426 N.E.2d 309, 315.) If some weighing of the probative value of the offered evidence against the prejudice it might create were involved, deference would be due the decision of the circuit court. (People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864.) The excerpt appears to be admissible, but we are not going to find reversible error in this decision of the circuit court on the basis of this record.

Plaintiffs assert various claims of error in regard to exclusion of evidence concerning the care exercised by defendants Zinzilieta and Bradley. We conclude no reversible error occurred.

Plaintiffs offered exhibit No. U-4, which was identified as describing a Memorial nursing policy standard for evaluating a “contraction-stress” test, which stated that a flat fetal heart base line is an “ominous” sign. Plaintiffs maintain this standard supports the testimony of their expert that the flat basal monitoring tracing exhibited in the case of Sheila Roach signaled the existence of fetal distress. Plaintiffs maintain this document should have been admitted as evidence that the defendant obstetricians were negligent in continuing to have pitocin administered to Mrs. Roach. Hospital policies are admissible as standards of care for the treatment of patients within that hospital. (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253.) Here, the relevance of the evidence is limited and, at best, it was only corroboration of other evidence. Moreover, the exhibit was shown to the jury with an overhead projection for a substantial period of time while it was hearing testimony. Also, portions of the exhibit were read to the jury by plaintiffs’ counsel in formulating a question. Any prejudice to plaintiffs in refusing this evidence was slight, and no reversible error occurred.

Similarly, no reversible error resulted from the circuit court’s refusal to admit as substantive evidence plaintiffs’ exhibit Nos. DD-12 and DD-14. The latter exhibit contained excerpts from Creasy and Resnik’s textbook, Maternal Fetal Medicine. Plaintiffs recognize that Illinois case law has not permitted the introduction of texts as substantive evidence, but asks us to adopt Federal Rule of Evidence 803(18) (see 28 U.S.C. app. §803(18), at 777 (1988) (Fed. R. Evid. 803(18))). The supreme court held such texts inadmissible in Walski v. Tiesenga (1978), 72 Ill. 2d 249, 258-59, 381 N.E.2d 279, 283, and has not retreated from that position. This court followed that rule in Fornoff v. Parke Davis & Co. (1982), 105 Ill. App. 3d 681, 690-91, 434 N.E.2d 793, 801, at least to the extent that, as here, the matter presented was only cumulative of other evidence. We follow Walski and hold that the court properly refused to admit exhibit No. DD-14.

Exhibit No. DD-12 was a page from Precis III, authored by the American College of Obstetricians and Gynecologists (ACOG). The defendants and their experts admitted familiarity with the exhibit and that it was used by obstetricians to prepare for their board exams. The pertinent part stated:

“Periodic asphyxial stress patters. Periodic changes in the FHR [fetal heart rate] may signify intermittent asphyxial stress caused either by transient insufficiency of uterine blood flow or by transient insufficiency of umbilical blood flow. The former is indicated by late decelerations or any smoothly occurring and reasonably prolonged (i.e., 1 minute) dip.”

Plaintiffs argue that although the defendants agreed that “decelerations” were signs of fetal distress, they denied that a prolonged dip (in the heart rate) indicated the same thing. Plaintiffs offered exhibit No. DD-12 to rebut defendants’ testimony that it was safe to continue to induce labor, because there were no “late decelerations” observed on the fetal monitor.

The parties disagreed on their definition of “deceleration.” Plaintiffs argue that since defendants narrowly limited their definition of that term to “dips” in the fetal heart tracing that occurred during a uterine contraction, they could ignore many of the dips in the fetal heart rate that Dr. Weiner and plaintiffs’ nursing expert Magiera testified were late decelerations.

Plaintiffs argue that any dip in fetal heart rate is significant, regardless of whether it meets defendants’ definition of late decelerations. Plaintiffs maintain they were denied the opportunity to point out that the definition adopted by the ACOG undercuts the defendants’ definition. Plaintiffs conclude that since Precis was evidence of the custom and terminology used by ACOG, it was erroneous to refuse the introduction of this document for the limited purpose for which it was offered.

While plaintiffs’ exhibit No. DD-12 was somewhat similar to exhibit No. DD-14, it was not a text, in the strict sense, but a standard for obstetricians and gynecologists. Relevant industry standards are usually admissible to show a standard of care. (Ruffiner v. Material Service Corp. (1987), 116 Ill. 2d 53, 58, 506 N.E.2d 581, 584; see also M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §406.5, at 216 (5th ed. 1990).) This evidence was admissible but, as various medical witnesses were questioned about this standard and, in the process, the standard was read to the jury, any error was not reversible.

As a final claim of error in regard to the court’s rulings on evidence offered by plaintiffs, they maintain the court prevented them from eliciting proper evidence in the taking of the evidence deposition of Dr. Stuart Weiner. Many objections were made by defendants to plaintiffs’ questions, and the court often sustained the objections. Usually the questions were rephrased and objections were then overruled. In the situations where a line of questioning was cut off, plaintiffs never made an offer of proof as to the answer that would have been given, and the answer was not obvious. Thus, the propriety of the exclusion of the evidence cannot be challenged on appeal. Chicago City Ry. Co. v. Carroll (1903), 206 Ill. 318, 68 N.E. 1087; Tarshes v. Lake Shore Harley Davidson (1988), 171 Ill. App. 3d 143, 524 N.E.2d 1136; see M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 19 (5th ed. 1990).

Plaintiffs’ major complaint in regard to the circuit court’s ruling on instructions was that the court refused a tendered issues instruction, which included in the grounds of negligence to be passed upon by the jury plaintiffs’ allegation that Memorial was negligent because its nurses failed to notify the attending doctors of abnormal fetal heart tones shown by the monitoring system. The instruction was refused on the basis that no expert testimony was presented showing that this was a proximate cause of the injuries involved. Memorial seeks to support the circuit court’s ruling on that same basis.

As late as Addison v. Whittenberg (1988), 124 Ill. 2d 287, 529 N.E.2d 552, the supreme court has stated that to prevail in a malpractice case, a plaintiff must prove:

“ ‘the proper standard of care against which the defendant physician’s conduct is measured; an unskilled or negligent failure to comply with the applicable standard; and a resulting injury proximately caused by the physician’s want of skill or care. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256; Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423.)’ (Purtill v. Hess (1986), 111 Ill. 2d 229, 241-42.) Because laypersons normally are not qualified to evaluate professional medical conduct, this court has stated that a plaintiff generally must present expert testimony to establish the elements of the cause of action; exceptions to the requirement of expert testimony have been found in cases in which the treatment is so common, or the act so grossly negligent, that a layman would be able to make a proper evaluation of the challenged conduct in the light of his own fund of experience and knowledge.” (Emphasis added.) Addison, 124 Ill. 2d at 297, 529 N.E.2d at 556.

Thus, under the language in Addison, except in the very simple cases referred to therein, each element of a medical malpractice case must be supported by expert testimony. Here, in regard to the tendered instruction, possible medical malpractice by a nurse rather than a physician was in issue. The phenomena dealt with was complicated and not readily understood by laypersons. Nurse Lena Magiera was qualified by plaintiffs as an expert on obstetrical nursing practice. She testified after having examined monitoring data in regard to Sheila Roach during January 10 and 11, 1987. She expressed an opinion that, at least after 10:30 on January 11, this data contained information such that proper nursing procedure would have required nurses in attendance to immediately notify the physician involved of the irregularities in the fetal heart beats being recorded. This testimony provided expert proof of the standard of care involved and of breach of that standard.

The Magiera testimony did not provide expert testimony on the proximate cause issue. Plaintiffs contend Dr. Weiner provided that testimony when he stated that physicians rely upon nurses properly following a monitor and notifying them concerning abnormalities, and by his testimony that notification to Dr. Zinzilieta by 11:28 a.m. on January 11 was “urgent.” This does not constitute an opinion on the existence of proximate cause between the alleged failure of the nurses and the injuries which are the subject of the case. Neither does testimony by Dr. Zinzilieta that he would have liked to have been notified at 11:26 a.m. on January 11, 1987, and that, if he had, he would have made preparations for performing a C-section at 11:33 a.m. that day, constitute such an opinion.

Plaintiffs, alternatively, maintain that no expert testimony on causation was necessary. They cite Collins v. Westlake Community Hospital (1974), 57 Ill. 2d 388, 312 N.E.2d 614. There, a five-year-old child had suffered a broken leg in an automobile collision, a blood clot resulted, requiring amputation of the leg. Suit was brought for medical malpractice against the attending orthopedic physician and the treating hospital. Evidence was presented that the orthopedist had requested attending nurses to watch the boy’s toes. Several days after the injury, the orthopedist came to the hospital at 6 a.m. after receiving a call from nurses indicating the child’s foot was cold, and he had no feeling. The orthopedist immediately performed exploratory surgery, which revealed a clotting in the femoral artery. The supreme court concluded an inference could be drawn that the nurses failed to watch the child’s foot during the night. Accordingly, the court overturned a judgment on a directed verdict for the hospital. The opinion did not discuss the question concerning any requirement for expert proof.

Similarly, in Bugno v. Mt. Sinai Hospital Medical Center (1990), 201 Ill. App. 3d 245, 559 N.E.2d 1, cited by plaintiffs, recovery against a hospital was upheld when an orthopedic patient suffered a blood clot in his leg while it was in a cast and then suffered a stroke. Expert medical evidence was presented that the stroke resulted from the clot, and the clot resulted from a cast which was too tight. Evidence showed the hospital personnel applied the cast. Bugno does not speak to the issue involved here.

We recognize the similarity between the situation here and that in Collins. However, that decision was rendered before Walski and its progeny cited in Addison. Most of these opinions have indicated that proximate cause is one of the issues which must be supplemented by expert testimony unless the question of malpractice is simple. The issue of the malpractice in Collins merely required nurses to look at feet. Here, highly sophisticated monitoring equipment was involved. We conclude that Collins does not control here, and that we should instead follow the requirements set forth in Addison. The circuit court properly refused plaintiffs’ issues instruction.

Plaintiffs also maintain the circuit court erred in giving, over their objection, Illinois Pattern Jury Instructions, Civil, No. 12.05 (3d ed. 1991) (hereinafter IPI Civil 3d), which states:

“If you decide that a [the] defendants] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.
[However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.]”

The notes on the use of IPI Civil 3d No. 12.05 indicate that the full instruction should not be used except where there is evidence tending to show that the sole proximate cause of the occurrence was something other than the conduct of the defendant. IPI Civil 3d No. 12.05. Notes on Use, at 12-11.

Dr. Mortimer G. Rosen, chairman of the Department of Obstetrics and Gynecology at the College of Physicians and Surgeons of the Presbyterian Hospital of the City of New York and of Columbia University, testified to an opinion that if a C-section had been performed on January 10, 1987, he would have expected the baby to be in the same condition as it was when born on January 11 after the emergency C-section. Thus, the jury could have found that the condition of the fetus in the womb prior to any failure to properly proceed was the sole proximate cause of the damage to the child. The giving of the instruction was proper.

As a further ground for being granted a new trial, plaintiffs assert they were unfairly prejudiced because the wife of one of the jurors had recently been a patient of Dr. Zinzilieta. Plaintiffs did not become aware of this until after trial. They then presented the issue, together with an affidavit by the juror, in which the juror stated the following: (1) he did not know of this relationship at the time of voir dire-, (2) he found out about it during the course of the trial, but (3) did not report this information to the court because he did not think it was significant. Plaintiffs rely upon the decision of this court in Marcin v. Kipfer (1983), 117 Ill. App. 3d 1065, 454 N.E.2d 370. There, we granted a new trial to a plaintiff in a medical malpractice case when, on jury selection, the court had overruled challenges for cause as to two jurors who were regular patients of the general practitioner charged with the malpractice. Both jurors had testified they could be fair and impartial.

This court indicated in Marcin that its decision was limited to the particular facts of that case and should not be broadly considered. In People v. Cole (1973), 54 Ill. 2d 401, 413, 298 N.E.2d 705, 712, the supreme court stated that exclusion of a prospective juror is only required when the juror is shown to have an opinion that raises a presumption of partiality. This court has held that the fact that a prospective juror is the father of an assistant State’s Attorney in the county where the case was being tried did not require exclusion of that prospective juror in a criminal case. People v. Cobb (1989), 189 Ill. App. 3d 86, 544 N.E.2d 1257.

Here, the relationships involved are not as close as in Marcin. There, two jurors were involved. Here, only one is involved. There, the jurors themselves were the patients of the defendant doctor. Here, the juror is merely the spouse of the defendant doctor’s patient. Clearly, the relationship is more remote. Here, the juror’s affidavit states that his wife intended to consult Dr. Zinzilieta for services within his specialty, while in Marcin, both jurors indicated they would be consulting the defendant doctor in the future for general purposes. No new trial is required because of the relationship between the juror and defendant Zinzilieta.

Finally, defendant seeks a new trial on the basis of the doctrine of cumulative error. (See Andes v. Lauer (1980), 80 Ill. App. 3d 411, 399 N.E.2d 990.) That doctrine is not one which this court has deemed to be frequently applicable. (People v. Lindgren (1982), 111 Ill. App. 3d 112, 443 N.E.2d 1129.) Any errors we recognize here concerned the refusal of evidence (1) the probative value of which was not great, and (2) which was cumulative; or (3) the jury was apprised of the content of a document, although it was not admitted into evidence. Thus, individually or cumulatively, the prejudice to plaintiffs arising from any such error was very small. The case was long and complicated. Plaintiffs did not obtain a perfect trial but received a fair one.

We affirm for the reasons stated.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE BOWMAN

text:
    A.D. DESMOND COMPANY, f/k/a Desmond Construction Company, Inc., et al., Plaintiffs-Appellants, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2 — 91—0447
    Opinion filed January 16, 1992.

      Daniel G. Coman and Bruce L. Goldsmith, both of Goldsmith, Thelin, Schiller, Dickson & Brown, of Aurora (Bruce A. Brown, of counsel), for appellants.
    Zoran Dragutinovich, Jerome H. Torshen, Ltd., and James K. Genden, all of Torshen, Schoenfield & Spreyer, Ltd., of Chicago (Mark K. Schoenfield, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs, A.D. Desmond Company (Desmond Company) and its shareholders, brought this action to recover life insurance proceeds allegedly owed to them by defendant, Jackson National Life Insurance Company (Jackson), upon the death of Albert D. Desmond (Insured). The individual shareholder-plaintiffs are Josephine Desmond, widow of Albert Desmond; Nancy Delaney and Lana Conklin, Albert Desmond’s daughters, in their capacity as trustees of the Albert D. Desmond Trust; and Al Withey, a long-time Desmond Company employee. Plaintiffs appeal from orders of the circuit court of Kane County which granted summary judgment in favor of Jackson Life and denied plaintiffs’ motion to reconsider.

The following undisputed facts emerge from the record of this case. On August 5, 1987, Albert D. Desmond, then president and principal shareholder of Desmond Company, applied to Jackson Life for a $500,000 life insurance policy. The application indicates that Desmond Company was named as the primary beneficiary of the policy. Jackson Life executed and delivered the requested policy to the Insured on September 18, 1987. Albert Desmond died on February 18, 1988, when the recently purchased experimental aircraft he was flying crashed into a farm field. Plaintiffs then became all of the shareholders of Desmond Company. As such, they became entitled to a share of the assets of the company upon its dissolution later in 1988.

Desmond Company, as beneficiary of Albert Desmond’s life insurance policy, notified Jackson Life of the death of the Insured and filed a claim for the insurance benefits. The insurer denied coverage on the ground that Albert Desmond had made material misrepresentations in the application he had submitted for insurance. Specifically, defendant asserted that the Insured failed to disclose that he had flown ultra-light planes and had owned a retail distributorship for such planes. According to the record, an ultra-light aircraft is one which typically weighs less than 225 pounds, has one or two seats, does not require a pilot’s license to operate, and is basically a motorized recreational flying machine.

Jackson Life asserted the Insured’s alleged misrepresentations as an affirmative defense in its answer to plaintiffs’ complaint. The trial court granted plaintiffs’ subsequent motion for summary judgment as to this issue on the basis that the insurance application required disclosure of such activities during the preceding two years, whereas the Insured’s involvement with the ultra-light retail operation had ended more than two years prior to his application for insurance.

Jackson Life later filed a motion for summary judgment of its own in which it again claimed that the Insured had made material misrepresentations in his application for insurance. This time defendant focused on evidence which tended to show that in 1983 Albert Desmond had personally built and/or assembled, and flown, an ultra-light plane which he considered to be an experimental aircraft. Defendant argued that the Insured misrepresented his aviation experience when he indicated, in response to question No. 14 of a questionnaire completed by him, that he had not flown experimental or personally built or assembled aircraft of any type. The trial court ultimately granted the motion, and this appeal followed.

As a preliminary matter, we note that Jackson Life filed an affirmative defense asserting that, at the time he applied for insurance, the Insured also misrepresented an intent to fly experimental aircraft in the future. The parties acknowledge that this issue was not raised in the summary judgment motions and was not addressed by the trial court. Thus, the issue on appeal revolves around the Insured’s answer to question No. 14 only to the extent that it addressed past events.

Plaintiffs posit that the Insured was under no obligation to report his 1983 flight since it was made in an ultra-light aircraft, and question No. 14 was not addressed to ultra-lights. Alternatively, plaintiffs claim the query set forth in question No. 14 was limited to the two years preceding the time of the 1987 application and, thus, did not apply to the 1983 flight. Defendant did not allege that misrepresentations were made regarding any activities during the two years prior to 1987. Plaintiffs conclude that the Insured gave a truthful answer to question No. 14. Defendant responds that question No. 14, by its own terms, clearly and unambiguously applied to any experimental or personally built or assembled planes flown by the Insured at any time in the past, even if the plane also happened to be an ultra-light. Resolution of this dispute requires us to determine just what information was asked for in question No. 14.

Summary judgment should be granted where no genuine issue of material fact remains unresolved and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Dairyland Insurance Co. v. Linak (1991), 208 Ill. App. 3d 892, 894-95.) Where, as here, the facts are not in dispute, the construction of an insurance policy is a matter of law which may properly be determined by summary judgment. (Dairyland, 208 Ill. App. 3d at 895; Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 686.) Since it is a question of law, the interpretation to be given an insurance policy may be decided by a reviewing court independent of the trial court’s judgment. Dairyland, 208 Ill. App. 3d at 895; Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 1021.

When, as in this case, an insurance policy is issued which makes the application for insurance part of the policy, the application becomes and is construed as part of the entire insurance contract. (New York Life Insurance Co. v. Rak (1962), 24 Ill. 2d 128, 131; Bellmer v. Charter Security Life Insurance Co. (1986), 140 Ill. App. 3d 752, 755.) The rules of construction applicable to contracts generally are also applicable to contracts of insurance. Butler, 199 Ill. App. 3d at 1021; International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 370.

Insurance forfeitures are not favored as insurance serves important purposes in contemporary society, and courts should be quick to find facts which support coverage. (Bellmer, 140 Ill. App. 3d at 755.) Thus, if a provision in a policy is ambiguous it will be construed in favor of the insured (Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1986), 113 Ill. 2d 327, 331) and against the insurer as drafter (Hartford Insurance Co. v. Jackson (1990), 206 Ill. App. 3d 465, 470). A contract will be considered ambiguous if it is susceptible to more than one reasonable meaning. (Monsalud v. State Farm Mutual Automobile Insurance Co. (1991), 210 Ill. App. 3d 102, 107.) A provision in an insurance policy may appear clear on its face and yet contain latent ambiguity. (Monsalud, 210 Ill. App. 3d at 107.) To determine the existence of ambiguity in an insurance policy the court must examine the entire policy and construe pertinent parts in light of the whole document. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5; Monsalud, 210 Ill. App. 3d at 107.) Viewed in light of these principles, question No. 14 must be interpreted favorably to Albert Desmond, the Insured.

In addition to the sections requesting biographical and medical data, the insurance application contained a “Special Activities” section, section VIII, which asked the following questions:

“HAS ANY PERSON PROPOSED FOR INSURANCE:
(a) Flown as a Student, Private, Commercial or Military pilot within two years?
(b) Are any such flights planned in the future? (If ‘a’ or ‘b’ is ‘yes’, complete Aviation Activities Questionnaire.)
(c) Engaged in any form of motorized racing in the past two years? (If so, complete Hazardous Activities Questionnaire.)
(d) Engaged in any form of underwater diving, sky diving, ultra-light flying, hang gliding or other hazardous activity in the past two years? (If so, complete Hazardous Activities Questionnaire.)
(e) Intend to travel or reside outside the United States or Canada within the next year? (If ’yes’, give details in Remarks.)”

As can be seen, parts (a) and (b) referred to an applicant’s past experience and future intent as a pilot. Part (a) listed the pertinent categories of pilots. In contrast, part (d) was concerned with an applicant’s participation in certain activities which, by their very nature, present peculiar or heightened risks. Part (d) expressly included “ultra-light flying” in its list of hazardous activities.

Since Albert Desmond answered parts (a) and (b) affirmatively, he also completed the “Aviation Activities Questionnaire,” as required by part (b). That document asked a series of questions related primarily to the applicant’s status and experience as a pilot, the status of his pilot certificate, the kinds of aircraft flown, and the nature of his flying. Question No. 14 specifically asked:

“14. Have you flown or do you intend to fly a prototype, experimental or personally built or assembled aircraft of any type?”

Desmond gave a negative response.

Defendant insists that the Insured should have disclosed his 1983 flight pursuant to question No. 14. However, the particular aircraft involved in that flight, while it may have been experimental or personally built, was also an ultra-light. Part (d) of the “Special Activities” section of the application had already explicitly asked about ultra-light flying and, if the applicant had such experience, he was directed to complete the “Hazardous Activities Questionnaire,” not the “Aviation Activities Questionnaire.” It was only part (b) which required an applicant to complete the “Aviation Activities Questionnaire,” and part (b) referred to flights made as a pilot, as set forth in part (a). Part (a) contains no indication whatsoever that it is requesting information about any ultra-light flights. We think the structure of the application could lead an applicant to think that ultra-light experience needed to be reported pursuant to only one part — part (d), the hazardous activities portion — of the application while all other flying experience was to be reported pursuant to another part — parts (a) and (b), the piloting portion — of the application. Since completion of the aviation questionnaire was required only pursuant to parts (a) and (b), it would be reasonable to conclude that the questionnaire, including question No. 14, pertained only to the piloting activities named in part (a) and did not apply to ultra-light flights.

Even if an applicant thought the inquiry in question No. 14 included past ultra-light activity, the application and questionnaire taken together could have been understood to limit the inquiry to the two prior years. Three out of the five questions in the “Special Activities” section of the application itself request information regarding the applicant’s past activities. In each instance the request extends to only the preceding two years. It is true that some of the questions in the aviation questionnaire evidently ask about an applicant’s aviation history without any time limitations. For example, questions No. 1, 9 and 11, respectively, ask if the applicant has “ever” been issued a pilot certificate, been medically grounded, or had his pilot certificate suspended or revoked. However, question No. 13 then asks for the types of aircraft flown “within the past 12 months.” This is followed immediately by question No. 14, which neither sets forth a specific time limit nor asks if the applicant has “ever” flown experimental or personally built aircraft. Finally, at the bottom of the one-page aviation questionnaire is found the table as it was filled in by Albert Desmond (see figure No. 1). Notably, none of the categories of aviation activities asks for disclosure beyond the two prior years, not even the “Experimental or testing” category.

In sum, the application itself clearly requires disclosure of past activities only for the two prior years. The questionnaire, in substantial part, also asks about the past two years. Only three questions address an applicant’s history in its entirety. Question No. 14 does not indicate how far back it looks, but we think an applicant could reasonably believe, based on the other questions, that he was obliged to report only on the last two years, particularly in light of the two-year scope of the “Experimental or testing” category in the table of the questionnaire.

We conclude that question No. 14 standing alone could, as defendant urges, be interpreted as requiring disclosure of all experience flying experimental or personally built or assembled aircraft, including any flights in ultra-lights, without regard to when such flights occurred. On the other hand, when considered in the context of the questionnaire and the application in their entirety, as it must be (Schnackenberg, 88 Ill. 2d at 5), question No. 14 could be interpreted as inapplicable to any flights in ultra-light aircraft since such experience was elicited in section (d) of the application. Alternatively, question No. 14 could be understood to mean that disclosure was required only to the extent of the prior two years.

Inasmuch as the language of the application and questionnaire is ambiguous, we must construe it favorably to the insured (Strzelczyk, 113 Ill. 2d at 331). Consequently, we find that question No. 14’s request for information encompassed, at most, only the preceding two years, and the Insured, therefore, was not obligated to report a flight made four years earlier, in 1983. Albert Desmond answered truthfully when he indicated that he had not flown experimental or personally built aircraft within the past two years. Absent the misrepresentation alleged by the insurer, defendant was not entitled to summary judgment as a matter of law.

In light of our conclusion that the Insured did not make misrepresentations when completing the application for insurance, we need not consider the other issues plaintiffs raise on appeal.

For the reasons set forth above, the order of the circuit court of Kane County granting summary judgment in favor of defendant is reversed, and the matter is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT and GEIGER, JJ., concur.

APPENDIX