Wakenight v. Katherine Shaw Bethea Hospital

2026 IL App (4th) 251048 FILED NO. 4-25-1048 August 14, 2026 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL OF ILLINOIS FOURTH DISTRICT WENDY WAKENIGHT, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Lee County KATHERINE SHAW BETHEA HOSPITAL, ) No. 20L26 a Not-for-Profit Corporation, d/b/a KSB Hospital; ) and DR. BRANDON GUMBINER, D.P.M. ) Honorable Defendants-Appellees. ) Matthew T. Klahn, ) Judge Presiding. PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Doherty and Grischow concurred in the judgment and opinion. OPINION ¶1 In December 2020, plaintiff, Wendy Wakenight, filed a complaint against defendants, Dr. Brandon Gumbiner, D.P.M. (Dr. Gumbiner), and Katherine Shaw Bethea Hospital, doing business as KSB Hospital (KSB), alleging negligence based upon Dr. Gumbiner’s treatment of Wakenight’s plantar fasciitis. The complaint alleged generally that Dr. Gumbiner’s negligent treatment, which included two foot surgeries, caused nerve damage. ¶2 In June 2024, Wakenight filed a motion in limine, seeking to bar at trial any reference to informed consent or known risks or complications of the surgical procedures. In August 2024, the trial court granted the motion in part by barring defendants from introducing Wakenight’s informed consent form or arguing that she waived any claim of negligence. ¶3 In September 2024, the trial court conducted a six-day jury trial. During the trial, defendants elicited testimony from Dr. Gumbiner and Wakenight that Dr. Gumbiner had discussed the known risks and complications of the surgical procedures with Wakenight. The jury returned a general verdict in favor of defendants and answered special interrogatories finding no breach of the standard of care on any of the six theories Wakenight asserted. ¶4 In March 2025, Wakenight filed a motion for a new trial, asserting that the trial court erred by allowing defendants to introduce testimony regarding the known risks and complications of the surgical procedures. In September 2025, the court denied the motion. ¶5 Wakenight appeals, arguing that the trial court erred by denying her motion for a new trial because, despite the court’s in limine ruling barring either evidence of informed consent or argument that Wakenight waived any claim of negligence, references at trial to discussions between Dr. Gumbiner and Wakenight about known risks and complications (1) confused the jury by conflating the issues in an informed consent case, which was not a theory of recovery in this case, with the issues in a medical negligence case and (2) allowed defendants to assert an unpled assumption of the risk defense. Wakenight asserts these errors substantially prejudiced her, warranting a new trial. ¶6 Because, under the particular circumstances of this case, we conclude that Wakenight has failed to meet her burden of showing that she was substantially prejudiced by the admission of the evidence in question, we affirm the judgment of the trial court. ¶7 I. BACKGROUND ¶8 A. The Complaint ¶9 In December 2020, Wakenight filed a complaint against defendants, asserting a medical negligence claim against Dr. Gumbiner individually and seeking to hold KSB vicariously liable as Dr. Gumbiner’s employer. Specifically, the complaint alleged that Dr. Gumbiner -2- performed foot surgeries on Wakenight on December 6, 2018, and November 14, 2019, and during those procedures, Dr. Gumbiner failed to provide a reasonable standard of care by (1) tearing Wakenight’s medial tendon and causing nerve damage and (2) failing to diagnose a superficial nerve entrapment and common fibular (peroneal) nerve entrapment. The complaint did not include a claim for lack of informed consent. ¶ 10 At trial, Wakenight ultimately asserted that Dr. Gumbiner breached the standard of care in the following six ways: (1) failure to “perform an x-ray, MRI, ultrasound, [electromyography/nerve conduction velocity test] or nerve block prior to the December 6, 2018 surgery,” (2) failure to “provide adequate conservative care prior to the December 6, 2018, surgery,” (3) failure to “perform surgery properly to protect the sural nerve during the December 6, 2018 surgery,” (4) failure to “properly apply a cast on December 14, 2018,” (5) failure to “properly examine for and diagnose tarsal tunnel nerve entrapment prior to [the first surgery],” and (6) failure to “properly examine for and diagnose peroneal nerve entrapment on or after January 27, 2020.” ¶ 11 B. Wakenight’s Motion In Limine No. 35 ¶ 12 In June 2024, Wakenight filed her motion in limine No. 35, seeking “to bar reference to informed consent, known risk, or complication” at trial. She asserted that defendants intended to introduce “expert testimony that the procedure’s risks were well-documented and commonly understood within the medical community.” Wakenight contended that because she had not pleaded lack of informed consent, evidence of “informed consent, known risk, or complication” was irrelevant and would serve only to “confuse consent for medical treatment with a blanket waiver of liability, which would be a misapplication of the law.” ¶ 13 Wakenight acknowledged that no Illinois authority supported her position, but she -3- relied on four out-of-state opinions: Wilson v. Patel, 517 S.W.3d 520 (Mo. 2017), Brady v. Urbas, 80 A.3d 480 (Pa. Super. Ct. 2013), Wright v. Kaye, 593 S.E.2d 307 (Va. 2004), and Ehrlich v. Sorokin, 165 A.3d 812 (N.J. Super. Ct. App. Div. 2017). Wakenight asserted that these cases generally held that evidence of informed consent in a medical malpractice case involving only negligence claims (and not a lack of informed consent claim) was irrelevant. ¶ 14 Defendants did not file a written response. ¶ 15 Later in June 2024, according to the docket sheet, the trial court conducted a hearing on all of the parties’ motions in limine. We note that Wakenight did not include a transcript of this hearing as part of the record on appeal. ¶ 16 In August 2024, the trial court issued a comprehensive written order that ruled on each of the motions in limine, including Wakenight’s motion in limine No. 35. The court granted Wakenight’s motion in part and denied it in part, permitting evidence of known risks and complications as it related to Dr. Gumbiner’s compliance with the standard of care and causation, but barring use of Wakenight’s informed consent form and any argument that Wakenight had waived her negligence claim. Specifically, the court wrote as follows: “The defendants object to [Wakenight’s] thirty-fifth motion in limine. The defendants conceded there is no lack of informed consent allegations [sic], but that does not eliminate the relevance of known complications resulting from properly performed surgical procedures among other grounds. [Wakenight] argues that defendants should be prohibited from making misleading arguments that [she] went into this surgery knowing this was the outcome. Defendants respond that known risks and complications are relevant in arguing that a patient may be appropriately treated and complications involving nerve injuries can still occur despite the -4-  physician meeting the standard of care. Specifically, whether the forming of scar tissue caused her injury as opposed to defendants’ not meeting the standard of care if the defendants have evidence to support that argument. The defendants should be barred from introducing [Wakenight’s] informed consent form, and therefore, waived any claim of negligence, and the defendants conceded the same. *** *** [Wakenight’s] thirty-fifth motion in limine is granted in part over the defendants’ objection. Specifically, the defendants are barred from introducing [Wakenight’s] informed consent form to argue that [she] waived any claim of negligence.” ¶ 17 C. The Jury Trial ¶ 18 1. Incomplete Record on Appeal ¶ 19 In September 2024, over the course of six days, the trial court conducted a jury trial on Wakenight’s claims. Wakenight, as appellant, has included in the record on appeal only selected excerpts of the testimony. From the court’s docket sheet, we can determine that Wakenight has omitted (1) the pretrial hearing on the motions in limine, (2) Wakenight’s opening statement, (3) Wakenight’s direct examination, (4) the testimony of Wakenight’s lay witnesses (her daughter and sister-in-law), (5) the testimony of treating physicians Dr. Paul Santangelo and Dr. Eric Meshulam, (6) the first day of Dr. Gumbiner’s direct examination and the entirety of his cross- examination, (7) the jury instruction conference, (8) Wakenight’s closing argument, and (9) the instructions to the jury, deliberations, and verdict. As a result, we cannot summarize the trial as a whole and can describe only the excerpts Wakenight chose to provide. ¶ 20 2. Defendants’ Opening Statement -5- ¶ 21 Defendants’ opening statement provided a detailed chronology of Wakenight’s treatment between August 2018, when she first saw Dr. Gumbiner seeking treatment for pain in both of her heels, and February 2020, when she last saw Dr. Gumbiner. Counsel told the jury that Wakenight had battled plantar fasciitis for several years and had found no relief. Dr. Gumbiner diagnosed her with plantar fasciitis and an “equinus contracture of the ankle,” which is a condition caused by tightness of the calf muscle that limits ankle joint dorsiflexion. During subsequent visits, with Wakenight reporting no relief, Dr. Gumbiner also ordered continued conservative care, physical therapy, a second steroid injection, and prescription medication to reduce inflammation. By October 2018, Wakenight reported no improvement. ¶ 22 Relevant to this appeal, defense counsel told the jury the following occurred during the October 2018 office visit: “Dr. Gumbiner had a lengthy discussion with [Wakenight] at that visit regarding potential surgical options to address both the plantar fasciitis and the equinus contracture of the ankle. Dr. Gumbiner will testify that he fully explained the potential risks and benefits of the surgical procedures he was proposing, including a risk of damage to the nerves and that after this discussion [Wakenight] elected to proceed with surgery.” ¶ 23 Counsel told the jury that Dr. Gumbiner performed the first surgery on Wakenight’s right foot on December 6, 2018. After the surgery, Dr. Gumbiner applied a hard splint to her right lower leg. At a postoperative visit approximately eight days later, he applied a hard cast to immobilize her muscles and promote healing. Six days later, Wakenight returned for an unscheduled visit to KSB and was seen by Dr. Meshulam, complaining of tightness in her cast. -6- Dr. Meshulam cut the cast to release pressure. Regarding this visit, counsel asserted, “You will hear testimony that a recognized complication of the proper use of a cast is that it can become tight due to the tissue swelling and that can develop particularly if a patient is using their lower extremity.” ¶ 24 Counsel also told the jury that Wakenight continued to follow up with Dr. Gumbiner and began reporting numbness on the top and outer side of her right foot after participating in physical therapy. As a result, Dr. Gumbiner ordered nerve conduction testing and continued conservative care, and he performed a steroid injection into Wakenight’s sural nerve. She reported immediate relief, but that relief did not last. In April 2019, Dr. Gumbiner recommended a second surgery to “relieve any pressure on a nerve that might be causing Wakenight’s symptoms,” and counsel added that “[t]he evidence will show that Dr. Gumbiner fully explained [the procedures] and discussed the potential risks, benefits, and complications just like he had with the first surgery.” ¶ 25 Defense counsel then stated that Wakenight instead sought treatment from Dr. Santangelo from May 2019 through August 2019. Counsel previewed Dr. Santangelo’s testimony, stating that Dr. Santangelo “believe[d] [Wakenight’s] symptoms were related to scar tissue or postoperative swelling that had occurred following Dr. Gumbiner’s December 2018 surgery.” Counsel also reiterated that scar tissue and swelling are recognized complications of a properly performed plantar-fasciitis surgery and that Wakenight’s numbness was the result of her body’s reaction to surgery, not improper technique. ¶ 26 Defense counsel also told the jury that Wakenight returned to Dr. Gumbiner, and in November 2019, he performed the second surgery that he had previously recommended. Counsel asserted, “The evidence will show that the scar formation that [Wakenight] experienced -7- and the fact that the sural nerve was entrapped was the result of [Wakenight’s] own body[’s] reactions to the initial surgery performed by Dr. Gumbiner and were not related to any improper surgical technique.” ¶ 27 According to defense counsel, Wakenight began physical therapy in December 2019 and reported that (1) her heel pain had resolved but (2) she experienced increased numbness in her right foot and leg. As a result, Dr. Gumbiner ordered a second nerve conduction study, which was performed in February 2020. The results of the second study were essentially the same as the first and also detected reduced sural nerve response in the left foot, which had not been operated on. ¶ 28 Wakenight’s last visit to Dr. Gumbiner occurred in February 2020. He recommended she seek a second opinion from another peripheral nerve specialist. Instead, she sought treatment from Dr. Michael Corcoran, a general podiatrist in Rockford, Illinois. According to counsel, Dr. Corcoran “believed that [the] numbness that [Wakenight] was complaining of was a known complication of the gastrocnemius recession either due to scar formation or postoperative swelling.” Dr. Corcoran referred Wakenight back to Dr. Gumbiner, but she never returned to Dr. Gumbiner and received no further podiatric care on her right foot. ¶ 29 After concluding this detailed chronology of what defense counsel expected the evidence to show, counsel explained the standard of care and advised that expert witnesses would be testifying to aid the jury’s determination of whether Dr. Gumbiner met that standard of care. Counsel explained how the evidence would show that he indeed met the standard of care at all times, emphasizing that the evidence would show Wakenight’s numbness was the result simply of her own body’s changes in anatomy following a properly conducted surgery by Dr. Gumbiner. ¶ 30 3. Wakenight’s Evidence -8- ¶ 31 According to the trial court’s docket sheet, Wakenight called four witnesses— namely, (1) Dr. Richard Braver (Wakenight’s medical expert), (2) Chasity Irgin (Wakenight’s daughter), (3) Tonya Braley (Wakenight’s sister-in-law), and (4) Wakenight. Only Dr. Braver’s testimony and a portion of Wakenight’s testimony appear in the record. ¶ 32 a. Dr. Braver ¶ 33 Dr. Braver, a podiatrist and surgeon from New Jersey, testified as Wakenight’s medical expert. Dr. Braver testified that, in his opinion, Dr. Gumbiner breached the standard of care in all six ways Wakenight claimed. Regarding known risks and complications of the surgical procedures Dr. Gumbiner performed, Dr. Braver testified as follows on direct examination: “Q. Can scar tissue develop after surgery and entrap a nerve without the podiatrist violating the standard of care? A. Scar tissue develops as a result of the surgery. It’s not developing without the surgery. So, you get too close to the nerve, it can violate the standard of care, yes. It would violate the standard of care. Q. I’m trying to say, there could be a series of bad outcomes that don’t violate the standard of care? A. That’s right.” ¶ 34 On cross-examination, Dr. Braver testified as follows when questioned by defense counsel: “Q. Now, you would agree, Dr. Braver, that a surgeon can perform a surgery; and even if it’s done with the correct technique, there can still be a failure, true? A. Only if you protect the areas that are supposed to be protected and there’s -9-  a failure, then that’s a problem. But again, if it’s preventable, then there can be— there should not be a problem. Q. And even with correct technique, there could be failures and there could be injuries to nerves, true? A. If there’s correct technique, there shouldn’t be failures. Q. And you would agree that injury to a nerve is a recognized risk and complication of a gastrocnemius recession surgery, true? *** A. If it’s done properly and preventable, it should not happen. I would not agree with your statement.” ¶ 35 Defense counsel also asked Dr. Braver about his opinion that Dr. Gumbiner applied the cast too tightly, causing permanent damage to Wakenight’s peroneal nerve. Braver agreed that postsurgical swelling can occur if the patient fails to elevate the leg sufficiently or increases his or her activity. He also agreed that he was unaware of Wakenight’s activities between the time Dr. Gumbiner applied the cast and the time Dr. Meshulam bivalved the cast. Although he insisted that Dr. Gumbiner applied the cast too tightly, he agreed with the general assertion that a cast can be applied within the standard of care and subsequent swelling may occur that requires the cast to be removed or bivalved. ¶ 36 Defense counsel also asked Dr. Braver about Dr. Corcoran’s deposition testimony, which Dr. Braver stated he had reviewed. Counsel asked, “You would agree that Dr. Corcoran testified that postoperative swelling or postoperative scar formation are recognized complications that can occur with the type of surgery [Wakenight] had on December 6th of 2018, true?” Dr. Braver answered, “Swelling and scar tissue can happen. They always happen with any surgery you - 10 - do. It’s just a question of how you protect the nerves.” ¶ 37 b. Wakenight ¶ 38 Wakenight testified on her own behalf. We note that she did not include her direct examination as part of the record on appeal. ¶ 39 On cross-examination, Wakenight first testified about her visit with Dr. Corcoran, as well as the treatment she received from Dr. Santangelo. Thereafter, and throughout the majority of Wakenight’s cross-examination, defense counsel asked Wakenight about her visits with Dr. Gumbiner, including what he told her about her condition, what was causing it, and what treatment he recommended. ¶ 40 In her brief to this court, Wakenight points to the following exchange that occurred during cross-examination, to which she objected, and which she asserts was irrelevant and prejudicial: “Q. And when Dr. Gumbiner had a conversation with you about— specifically, about surgery in October 2019, he told you that in performing surgery there were potential risks, things like: Infection and bleeding; you could get painful scar formation; you could have stiffness or limitation of motion; you could get swelling or you could get damage to your nerves; all of those were things he talked with you about at that visit? [WAKENIGHT’S COUNSEL]: Judge, just for the record, I’ll renew the issue we talked about (inaudible) your ruling. THE COURT: Okay. So the record will reflect the ongoing objection by [Wakenight]. Thank you. Q. *** Those were part of the discussions, true? - 11 -  A. I don’t remember exactly all the things he told me but— Q. You do remember that he told you there were certain risks? A. Yes.” ¶ 41 Relatedly, on redirect examination, Wakenight’s counsel asked her the following: “Q. Now, just one other topic, okay. And there was some discussion of before the first surgery your initial appointments with Dr. Gumbiner and him talking to you about the risks involved with surgery; do you remember that? A. Yes. Q. Okay. Did he ever tell you that he would deviate from the standard of care? A. No. Q. Did he ever tell you why he wasn’t ordering an X-ray, MRI, or ultrasound? A. No. Q. Did he ever tell you that he had missed the tarsal tunnel diagnosis? A. No. Q. Did he ever tell you that he was not going to protect the sural nerve during your surgery? A. No. Q. Did he ever tell you that he was going to apply the cast too tightly and damage the common peroneal nerve? A. No.” We note that the record does not include a transcript of what the parties had previously discussed - 12 - regarding Wakenight’s earlier objection and the trial court’s ruling. ¶ 42 Immediately thereafter, on re-cross-examination, the following exchange occurred: “Q. And Dr. Gumbiner, in explaining the risks, told you that the surgery could be done appropriately and properly, and you could still experience complications such as bleeding or such as infections or things like even as—death associated with anesthesia care in addition to other things, true? [WAKENIGHT’S COUNSEL]: Objection. Asked and answered and cumulative. [Defense counsel] covered this his first time with [Wakenight]. THE COURT: Overruled in regards to the asked and answered and the cumulative, and I’ll note that your previous objection of pretrial motions remains. Okay. Go ahead. Q. (By [defense counsel]:) Do you remember the question? A. Yes. Q. He told you that, true? A. Yes. [DEFENSE COUNSEL]: That’s all I have.” ¶ 43 4. Defendants’ Evidence ¶ 44 According to the trial court’s docket sheet, defendants called four witnesses: (1) Dr. Santangelo (via video deposition), (2) Dr. Meshulam, (3) Dr. Stephen Barrett, and (4) Dr. Gumbiner. Wakenight has included in the record on appeal only the testimony of Dr. Barrett and a portion of the testimony of Dr. Gumbiner. ¶ 45 a. Dr. Barrett ¶ 46 Just prior to Dr. Barrett taking the stand, outside of the presence of the jury while - 13 - discussing a ruling on a motion in limine not pertinent to this appeal, the trial court asked both counsel whether they had anything further to add. The following exchange occurred: “[WAKENIGHT’S COUNSEL]: Just as—for the objections, I’m assuming they are going to ask about risks. Same—can we have the same agreement; don’t need to object, it’s preserved? THE COURT: Yes. [DEFENSE COUNSEL]: I’m fine with having a standing objection to the questioning about—with respect to risk. THE COURT: Okay. All right. That will be noted for the record too. That has been discussed both in the motions in limine as well as previous objections made during the trial. So those should be recognized as preserved for [Wakenight] as well.” We note that the record does not include a transcript of the earlier “agreement” the parties had previously reached regarding risk evidence. ¶ 47 Dr. Barrett then took the stand. Dr. Barrett, a podiatrist specializing in lower extremity peripheral nerve surgery, testified as an expert for the defense. He testified that, in his opinion, Dr. Gumbiner met the standard of care in all respects and that Wakenight’s injuries were caused by “robust exuberant scar tissue formation” around the sural nerve following the first surgery—a recognized consequence of surgery performed within the standard of care—and not by any failure to protect the nerve. He also opined that Dr. Gumbiner properly applied the cast and that subsequent swelling—and not improper placement—caused temporary tightness, which Dr. Meshulam resolved by cutting the cast within a time frame that would not cause permanent damage to the nerve. - 14 - ¶ 48 b. Dr. Gumbiner ¶ 49 As an initial matter, we note that, according to the trial court’s docket sheet, Dr. Gumbiner testified for approximately 1 hour and 15 minutes the day before Dr. Barrett’s testimony. The transcript of Dr. Barrett’s testimony shows that the parties agreed to pause Dr. Gumbiner’s testimony so Dr. Barrett could testify. Dr. Gumbiner’s direct examination resumed after Dr. Barrett’s testimony. However, Wakenight has included as part of the record on appeal only Dr. Gumbiner’s testimony taken after Dr. Barrett’s testimony, which we now summarize. ¶ 50 During direct examination, defense counsel reviewed with Dr. Gumbiner in chronological order his medical notes pertaining to Wakenight’s treatment. Dr. Gumbiner explained each note in detail, including what Wakenight told him about her symptoms, his clinical examination of Wakenight, his findings and diagnoses, what he told Wakenight about his impressions and recommendations, and what treatment he prescribed or procedure he performed. ¶ 51 Regarding Dr. Gumbiner’s October 2018 note, defense counsel pointed out that Dr. Gumbiner noted that Wakenight had failed all conservative care, and he therefore explained to her that “the last two options are custom orthotics or surgery.” Counsel asked him to elaborate on those two options. When doing so, after explaining the orthotic option, the following exchange occurred regarding the surgical option: “A. *** [I]t’s affecting her ability to work, and as far as I’m concerned then, you know, it’s a discussion with the patient, but surgery would for her consist of the gastroc recession to lengthen that posterior muscle group and the plantar fasciotomy. Q. And did you discuss with her issues in terms of potential risks or complications? - 15 -  A. I did. Q. And what would the risks or complications be involving this potential surgery? A. Yeah. So we discussed—you know, anytime there’s surgery there’s a risk of infection; risk of scar tissue; risk of nerve damage; risk of blood clots; risk that it will change the biomechanics of the foot, how the foot’s going to function; discussing with that that she would need orthotics after the surgery to help support the foot; discuss the potential for hematoma formation; delayed healing of the skin and then, you know, with anesthesia the risk of loss of life as well. Q. So with respect to the potential damage to the nerves or nervous system, what would that include? A. So with these procedures in particular, would include the sural nerve because the sural nerve runs in the area of the gastrocnemius, and it includes the tibial nerve or the tarsal tunnel because that’s in the area of the plantar fasciotomy. Q. So what was the course of action at that point? A. *** I told her to go home, think about it; think about her options; call back and let us know how she wanted to proceed. *** Q. So what happens next? A. We got a call, I think the next day, that she wanted to schedule surgery and surgery was scheduled for December 6[, 2018.]” ¶ 52 Later, during his direct examination, Dr. Gumbiner described an April 26, 2019, office visit, at which he discussed with Wakenight ongoing numbness she had developed in the - 16 - outside and top of her right foot, which had not responded to conservative care. As a result, Dr. Gumbiner discussed with her a second surgical procedure. On that topic, Dr. Gumbiner testified as follows: “A. The surgery that was discussed was the exploration of the sural nerve with decompression as well as [a] tarsal tunnel release. *** Q. Did you discuss with her certain risks *** and complications associated with the—this second surgery you were planning to do? A. I did. Q. And were those the same or similar to what *** [you] earlier described for the first surgery? A. They would be similar. In regards to the nerve, sometimes with entrapment or scarring it is difficult to say how that’s going to respond, and so I would have told Ms. Wakenight we will do everything we can to *** relieve your pain, but typically we can’t give any guarantees in regards to the numbness.” ¶ 53 As we have noted, Wakenight did not include her cross-examination of Dr. Gumbiner as part of the record on appeal. ¶ 54 Dr. Gumbiner’s redirect examination pertained primarily to his treatment of Wakenight and his explanations for why he did not believe he breached the standard of care. ¶ 55 After Dr. Gumbiner testified, according to the docket sheet, the trial court addressed with the parties (1) defendants’ motion for a partial directed verdict, (2) jury instructions, and (3) defendants’ motion for special interrogatories. The transcript of these discussions is not included as part of the record on appeal. Accordingly, our review and summary of the trial resumes - 17 - with closing arguments. ¶ 56 5. Defendant’s Closing Argument ¶ 57 As we have noted, Wakenight did not include a transcript of her closing argument as part of the record on appeal. However, the record does contain a transcript of defense counsel’s closing argument. ¶ 58 Defense counsel argued that Wakenight failed to prove that he breached the standard of care in any of the six ways she claimed. He argued instead that her injuries resulted from swelling and scar formation that were recognized complications following a properly performed surgery. Defense counsel did not argue that Wakenight assumed the risk or waived her right to sue by consenting to the procedures after being informed of the risks. ¶ 59 6. The Jury’s Verdict and Special Interrogatories ¶ 60 The jury returned a verdict in favor of defendants and also answered special interrogatories finding that Dr. Gumbiner did not breach the standard of care by failing to (1) perform an X-ray, MRI, ultrasound, nerve conduction study, or nerve block prior to the first surgery, (2) provide adequate conservative care prior to the first surgery, (3) perform surgery properly to protect the sural nerve during the first surgery, (4) properly apply the cast, (5) properly examine for and diagnose tarsal tunnel nerve entrapment prior to the first surgery, and (6) properly examine for and diagnose peroneal nerve entrapment on or after January 27, 2020. ¶ 61 D. Wakenight’s Motion for a New Trial ¶ 62 In March 2025, Wakenight filed a motion for a new trial. ¶ 63 1. The Motion ¶ 64 Wakenight argued in her motion for a new trial that “repeated testimony regarding the known risks of [Wakenight’s] surgery [created] undue prejudice against [Wakenight], - 18 - confus[ed] the issues and jury *** that she assumed risks of surgery, which was not her burden to disprove, warranting a new trial.” Wakenight identified the following instances occurring during the trial during which defendants referenced discussions between Dr. Gumbiner and Wakenight of known risks or complications of surgery: (1) defendant’s opening statement (supra ¶ 22), (2) defendants’ cross-examination of Wakenight (supra ¶ 40), and (3) two instances during defense counsel’s direct examination of Dr. Gumbiner (supra ¶¶ 51-52). In support of her argument, Wakenight cited three of the same out-of-state authorities she relied upon in support of her motion in limine—namely, Brady, Wilson, and Wright. ¶ 65 Regarding the incompleteness of the record on appeal, we note that, in her written motion, Wakenight alleged that “[a]fter opening statement and objections were raised to statements made, the trial court articulated its view that informed consent and risks [were] different after hearing argument,” followed by the citation, “See Court correspondence, attached hereto as Exhibit A.” However, Wakenight did not include in the record on appeal a transcript of the objections made after defendants’ opening statement, nor is a copy of the court’s correspondence refining or explaining its in limine ruling in response to those objections attached to Wakenight’s motion in the record. ¶ 66 2. Defendants’ Response ¶ 67 In May 2025, defendants filed a written response to Wakenight’s motion for a new trial. Defendants asserted the following: (1) the trial court appropriately ruled on motion in limine No. 35, allowing defendants to present evidence of recognized risks and complications because such evidence was relevant to defendants’ compliance with the standard of care; (2) defendants complied with the court’s ruling by never presenting any evidence or argument that Wakenight assumed the risk of her surgery; (3) Wakenight failed to demonstrate that she suffered any - 19 - prejudice resulting from the trial court’s allowing evidence of known risks and complications; and (4) given the jury’s verdict finding no breach of the standard of care, Wakenight has “failed to satisfy the two-issue rule.” ¶ 68 3. The Hearing ¶ 69 In June 2025, the trial court conducted a hearing on Wakenight’s motion for a new trial. ¶ 70 Wakenight argued consistent with her written motion that defendants had violated the trial court’s in limine ruling by improperly raising the issue of informed consent during (1) defendants’ opening statement, (2) Wakenight’s cross-examination, and (3) Dr. Gumbiner’s direct examination. Wakenight reiterated that “talking about informed consent, talking about these risks can confuse a jury who basically believes a plaintiff is at fault for going through the procedure.” ¶ 71 Defendants responded that (1) the known risks of properly performed surgery were relevant to the standard of care and causation, (2) the out-of-state cases themselves permit such evidence when offered through experts, (3) defendants never argued assumption of the risk or waiver, and (4) the special interrogatories finding no breach on any theory defeated any claim of prejudice. ¶ 72 In reply, Wakenight asserted as follows: “I think we both agree that this testimony can come in if it comes in properly. It came in improperly. Their expert should have been the one talking about this. You know, he’s a surgeon. These things can happen despite due care, despite this, despite that. That’s not how it came in. It came in through opening that there is a lengthy discussion with [Wakenight]. - 20 -  What does that have to do with the standard of care? [Wakenight] can’t establish standard of care. [Wakenight] has no bearing—has no foundation to say the standard of care was met or not met. Then it comes in through cross- examination with [Wakenight] again ***. It has nothing to do with standard of care. Their expert should have been the one