The opinion
Illinois Official Reports
Appellate Court
Groeller v. Evergreen Healthcare Center LLC,
2015 IL App (1st) 140932
Appellate Court WILLIAM M. GROELLER, JR., Individually and as Administrator of
Caption the Estate of Eleanor Groeller, Plaintiff-Appellant, v. THE
EVERGREEN HEALTHCARE CENTER LLC, d/b/a Evergreen
Healthcare Center, Defendant-Appellee (Boulevard Healthcare
Management, LLC, a/k/a Boulevard Healthcare, LLC, Defendant).
District & No. First District, Fourth Division
Docket No. 1-14-0932
Filed April 30, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-2821; the
Review Hon. Thomas E. Flanagan, Judge, presiding.
Judgment Affirmed.
Counsel on Peter R. Coladarci, of Peter R. Coladarci, Ltd., of Chicago, for
Appeal appellant.
Robert Marc Chemers, John J. Walsh III, and Scott L. Howie, all of
Pretzel & Stouffer, Chtrd., of Chicago, for appellee.
Panel JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices Ellis and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, William M. Groeller, Jr., individually and as administrator of the estate of
Eleanor Groeller (his mother), deceased, filed a six-count complaint against defendants,
Evergreen Healthcare Center LLC, doing business as Evergreen Healthcare Center (Evergreen
or the nursing home), and Boulevard Healthcare Management, LLC (also known as Boulevard
Healthcare, LLC). Eleanor, then 90 years old, was injured in an accident at her home and broke
her right arm and both thumbs. After being treated at Northwestern Hospital, she was
discharged to Evergreen, a nursing home. At Evergreen, Eleanor’s physical and mental
condition worsened. Eleanor was returned to Northwestern Hospital, where she died. At the
conclusion of the trial, the trial court instructed the jury on both institutional negligence
(particularly the duty of a healthcare institution) and on professional negligence (particularly
the duty of a professional nurse).
¶2 The jury returned a verdict in favor of defendant. Plaintiff appeals, arguing the trial court
committed reversible error in giving the jury both instructions. Specifically, plaintiff argues
the trial court committed reversible error in failing to determine what law applies and
instructing the jury accordingly. Separately, plaintiff argues the jury’s verdict should be
reversed and the cause remanded for a new trial because the trial court’s instructions were
contradictory and prejudiced him.
¶3 For the following reasons, we affirm.
¶4 BACKGROUND
¶5 The complaint alleged that Eleanor Groeller was a resident of Evergreen nursing home
from November 17, 2007 until December 1, 2007, following her discharge from Northwestern
Hospital after treatment for a broken right arm and two broken thumbs. The complaint alleged
that upon her admission to Evergreen, Eleanor required assistance for eating, dressing,
bathing, administration of medication, walking, and moving from bed to chair. Sometime after
being admitted to Evergreen, Eleanor developed pressure ulcers. The complaint alleged that
while in Evergreen Eleanor was in a sad or anxious mood and that by November 26, 2007, she
suffered from (a) frequent bowel incontinence, (b) multiple daily episodes of bladder
incontinence, (c) pressure sores damaging underlying tissue, and (d) partial loss of skin or a
shallow skin crater or both. Evergreen discharged Eleanor on December 1, 2007. The
complaint alleged that when she was discharged, Eleanor had pressure ulcers and had
deteriorated mentally. Northwestern Hospital readmitted Eleanor and diagnosed her with
lethargy or failure to thrive, infection, and an E. coli infection. Eleanor died on December 14,
2007, two weeks after being discharged from Evergreen Healthcare Center.
¶6 Plaintiff’s amended complaint (complaint) alternatively alleged that Evergreen Healthcare
Center, LLC (hereinafter defendant) and Boulevard Healthcare Management, LLC
(Boulevard), owned, operated, or managed Evergreen Healthcare Center and was the licensee
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of Evergreen Healthcare Center. Boulevard is not a party to this appeal. The complaint alleged,
in relevant part, that defendant violated the Nursing Home Care Act (210 ILCS 45/1-101
et seq. (West 2008)) (count I); negligence resulting in a survival claim (count II); and
negligence resulting in a wrongful death claim (count III).
¶7 Plaintiff’s complaint for a violation of the Nursing Home Care Act alleged that defendant,
“by its owners, officers, managers, agents, employees, and servants,” owed Eleanor a duty to
comply with the Nursing Home Care Act. Plaintiff alleged that defendant, “individually, and
by and through its owners, officers, managers, agents and employees,” violated the Nursing
Home Care Act by (a) failing to properly attend and care for Eleanor, (b) failing to properly
assist Eleanor, (c) failing to properly care for Eleanor’s deteriorating mental status, (d)
allowing pressure sores to develop, (e) allowing pressure sores to increase in severity and size,
and (f) otherwise violating statutory duties in Eleanor’s “care, monitoring and attendance.”
Plaintiff’s complaint alleges that under the Nursing Home Care Act, defendant is liable to any
resident for the intentional or negligent acts or omissions of their agents or employees which
injure the residents. Plaintiff alleged that as a direct and proximate result of one or more of
defendant’s violations of the Nursing Home Care Act, Eleanor suffered harm resulting in
physical and mental injuries which resulted in her death.
¶8 Plaintiff’s negligence counts alleged that defendant, “by and through its owners, officers,
managers, agents and employees had a duty to exercise that degree of care in providing
services and facilities to [Eleanor] as required of similar nurses and facilities in similar
circumstances.” The negligence count alleged that defendant “by and through its owners,
officers, managers, agents and employees, failed to provide to [Eleanor] that degree of care
required of similar nurses and facilities in similar circumstances and was negligent in” (a)
failing to properly attend and care for Eleanor, (b) failing to properly assist Eleanor, (c) failing
to properly care for Eleanor’s deteriorating mental status, (d) allowing pressure sores to
develop, (e) allowing pressure sores to increase in severity and size, and (f) otherwise violating
duties in Eleanor’s “care, monitoring and attendance.” The complaint alleged that as a direct
and proximate result of one or more of defendant’s negligent acts or omissions Eleanor
suffered harm resulting in physical and mental injuries which resulted in her death and Eleanor
and her next of kin suffered damages and pecuniary injuries.
¶9 Plaintiff attached a report under section 2-622 of the Code of Civil Procedure (735 ILCS
5/2-622 (West 2012))1 as an exhibit to his negligence counts from Shirley Daugherty, R.N.,
RAC-CT, CLCP, CLNC. Daugherty’s report concludes that errors by Evergreen “breached the
standard of care and caused Eleanor Groeller injury, damage, and harm, and ultimately death.”
¶ 10 Plaintiff called Dr. Daniel Swagerty as an expert witness at trial. Swagerty testified that
when an individual enters a nursing home, “they are going to get assessed by a number of
different professionals. They need to have a medical assessment. Also, the nurses assess them,
as do[es] the dietician, all the providers.” Swagerty did testify that the nursing home violated
the standard of care applicable to the nursing home in several respects. He stated the nursing
1
“In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for
injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff’s attorney
or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all
copies of the complaint ***.” 735 ILCS 5/2-622(a) (West 2012).
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facility “failed to fully assess her, fully to provide the type of really high-touch type of
approach, having nursing, social work, involved the doctor. [sic] They didn’t even involve the
attending physician around these issues. *** It would have only taken social work, physician,
nursing to work together, and then individually to be able to provide her moral support, some
psychological support. That would have been at the very minimum.” One of the ways in which
the nursing home violated the standard of care applicable to it, according to Swagerty’s
testimony, was by failing to turn her, failing to keep her dry, and dragging her across the
sheets, which is how he testified her pressure ulcers developed.
¶ 11 Daugherty testified at the trial. When asked what her thoughts were after she was initially
contacted and asked to review Eleanor’s medical record, Daugherty stated that Eleanor’s
“needs were not met and the nursing staff had not followed the standard of care in ensuring that
she had her–had proper nutrition to maintain her current status upon admission.” Daugherty
offered her opinion on the duties of a registered nurse in a nursing home regarding the delivery
of treatment by dieticians, social workers, psychologists and psychiatrists. Plaintiff’s counsel
then asked Daugherty to describe what deviations from the standard of care she found from her
review of pertinent documents. Daugherty testified in part that, “as a nurse, it is their duty and
responsibility to ensure that–that if someone is refusing their meals, you’ve got to find out why
and the nursing staff did not.” Daugherty also testified that it would be a “nursing judgment” to
make the decision to offer a resident, who was not eating, six small meals throughout the day
as an alternative. She opined that the nurse in a nursing home is “the frontline caregiver and it
is our responsibility to ensure that our residents are taken care of.” Daugherty testified that a
nurse can make observations to report to other medical disciplines when requesting care for a
nursing home resident.
¶ 12 The trial court conducted a jury instruction conference at which plaintiff tendered an
instruction on institutional negligence: Illinois Pattern Jury Instructions, Civil, No. 105.03.01
(2006) (hereinafter, IPI Civil (2006) No. 105.03.01). The instruction reads, in part, as follows:
“Negligence by a nursing home is the failure to do something that a reasonably
careful nursing home would do, or the doing of something that a reasonably careful
nursing home would not do, under circumstances similar to those shown by the
evidence.
In deciding whether the defendant Evergreen Healthcare Center, LLC was
negligent, you may consider opinion testimony from qualified witnesses, evidence of
professional standards, evidence of policies and procedures, evidence of community
practice, and other evidence presented in this case.” IPI Civil (2006) No. 105.03.01.
¶ 13 Defendant objected and tendered a professional negligence instruction: Illinois Pattern
Jury Instructions, Civil, No. 105.01 (2006) (hereinafter, IPI Civil (2006) No. 105.01).
Defendant’s instruction reads, in part, as follows:
“ ‘Professional negligence’ by a nurse is the failure to do something that a
reasonably careful nurse practicing in the same or similar localities as the nurse would
do, or the doing of something that a reasonably careful nurse would not do, under
circumstances similar to those shown by the evidence.” IPI Civil (2006) No. 105.01.
¶ 14 The trial court initially ruled it would give the institutional negligence instruction, but after
additional argument from the parties, the court decided it would give the professional
negligence instruction as well.
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¶ 15 The jury returned a verdict in favor of defendant. The trial court entered judgment on the
verdict. The court then denied plaintiff’s posttrial motion.
¶ 16 This appeal followed.
¶ 17 ANALYSIS
¶ 18 On appeal plaintiff argues the trial court committed reversible error when it gave
conflicting instructions to the jury.
“In Illinois, the parties are entitled to have the jury instructed on the issues
presented, the principles of law to be applied, and the necessary facts to be proved to
support its verdict. The decision to give or deny an instruction is within the trial court’s
discretion. The standard for determining an abuse of discretion is whether, taken as a
whole, the instructions are sufficiently clear so as not to mislead and whether they
fairly and correctly state the law.” Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505
(2002).
¶ 19 Further:
“When the question is whether the applicable law was conveyed accurately, however,
the issue is a question of law, and our standard of review is de novo. [Citation.]” Studt
v. Sherman Health Systems, 2011 IL 108182, ¶ 13.
¶ 20 Plaintiff argues the trial court erred in instructing the jury with regard to defendant’s duty
to Eleanor. “A duty, in negligence cases, may be defined as an obligation, to which the law will
give recognition and effect, to conform to a particular standard of conduct toward another.
[Citation.]” (Internal quotation marks omitted.) Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.
2d 278, 295 (2000). “[I]n negligence cases, the duty is always the same, to conform to the legal
standard of reasonable conduct in light of the apparent risk. What the defendant must do, or
must not do, is a question of the standard of conduct required to satisfy the duty.” (Emphasis
and internal quotation marks omitted.) Id.
“In an ordinary negligence case, the standard of care required of a defendant is to
act as would an ordinarily careful person or a reasonably prudent person. [Citation.]
***
In contrast, in a professional negligence case, the standard of care required of a
defendant is to act as would an ordinarily careful professional. [Citation.] Pursuant to
this standard of care, professionals are expected to use the same degree of knowledge,
skill and ability as an ordinarily careful professional would exercise under similar
circumstances.” (Internal quotation marks omitted.) Jones, 191 Ill. 2d at 295.
¶ 21 Under Illinois law, a hospital may be found liable in a medical negligence case under two
separate and distinct theories: (1) liability for its own institutional negligence and (2) vicarious
liability for medical negligence of its agents or employees. Longnecker v. Loyola University
Medical Center, 383 Ill. App. 3d 874, 885 (2008). In institutional negligence cases our
supreme court has acknowledged that hospitals have an independent duty to assume
responsibility for the care of their patients. Jones, 191 Ill. 2d at 291 (citing Darling v.
Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965)). “Ordinarily, this duty is
administrative or managerial in character.” Id. (citing Advincula v. United Blood Services, 176
Ill. 2d 1, 28 (1996)). “To fulfill this duty, a hospital must act as would a reasonably careful
hospital under the circumstances.” (Internal quotation marks omitted.) Id. at 291-92 (quoting
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Advincula, 176 Ill. 2d at 29). The hospital’s liability is predicated on its own negligence, not
the negligence of its physician-agent or employee. Id. at 292. See also Advincula, 176 Ill. 2d at
30 (“the standard of care applied to hospitals in cases based on their vicarious liability for the
conduct of agent or employee medical professionals remains the standard applied to all
professionals, i.e., to use that same degree of knowledge, skill and ability as an ordinarily
careful professional would exercise under similar circumstances”).
¶ 22 The same character of institutional liability applicable to hospitals applies to nursing
homes. Thus, negligence by a nursing home is “the failure to do something that a reasonably
careful [nursing home] would do, or the doing of something that a reasonably careful [nursing
home] would not do, under circumstances similar to those shown by the evidence.” IPI Civil
(2006) No. 105.03.01. Plaintiff has no dispute with this statement of the standard of care
applicable to defendant; plaintiff’s arguments focus on whether the trial court should have
instructed the jury on the standard of care applicable to defendant’s professional nurses. The
trial court gave the jury both the institutional negligence instruction and the professional
negligence instruction tendered by each party.2
¶ 23 A medical provider such as a hospital or nursing home may also be held responsible for the
conduct of its agents or employees who are medical professionals under the doctrine of
vicarious liability. Advincula, 176 Ill. 2d at 31. An “employer’s vicarious liability extends to
the negligent, willful, malicious, or even criminal acts of its employees when such acts are
committed within the scope of the employment.” Bagent v. Blessing Care Corp., 224 Ill. 2d
154, 163-64 (2007). Where a medical provider is held responsible under a theory of vicarious
liability for the conduct of a medical-professional agent or employee, the medical provider’s
conduct is measured against a professional standard of care. Advincula, 176 Ill. 2d at 31.
Plaintiff argues the trial court committed two errors in instructing the jury. First plaintiff argues
the trial court abdicated its responsibility to decide what the law is when it gave two conflicting
instructions defining the standard of care applicable to defendant’s conduct. Plaintiff’s second
argument on appeal is that the trial court erred in instructing the jury as to the wrong standard
of care applicable to defendant’s conduct.
¶ 24 1. Trial Court’s Duty to Instruct the Jury
¶ 25 Plaintiff argues that the instructions “confuse the nature of the defendant and contradict the
nature of plaintiff’s burden to prove the defendant was negligent.” Plaintiff cites People v.
Jenkins, 69 Ill. 2d 61, 66 (1977), for the general proposition that “it is the duty of the court to
2
The instruction defendant tendered and the trial court gave also informed the jury that to determine
what the standard of care required in this case, the jury must rely on “opinion testimony from qualified
witnesses, evidence of professional standards, evidence of by-laws/rules regulations/policies/pro-
cedures, and other sources.” Our supreme court held that this version of the instruction does not
accurately state the law because the instruction does not reflect the necessity of expert testimony. Studt,
2011 IL 108182, ¶¶ 23, 28. However, reversal is only warranted if the error resulted in “serious
prejudice” to the appellant’s right to a fair trial. Id. ¶ 28. We do not find that plaintiff suffered serious
prejudice from the trial court’s error. Both parties presented expert testimony on what the standard of
care for professional nurses required in this case and the jury found in favor of defendant. Thus, the
inappropriate “expansiveness of the instruction could not have affected the outcome and therefore
worked no prejudice.” Id. ¶ 52 (Karmeier, J., specially concurring).
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inform the jury as to the law.” Further, it is the trial court’s duty “to give the jury proper
guidance, not to generate confusion.” Id. The Jenkins court wrote as follows:
“It is well established that the giving of contradictory instructions on an essential
element in the case is prejudicial error, and is not cured by the fact that another
instruction is correct. While it is true that an instruction may be inaccurate, and other
instructions may remove this error, such cannot be so when the instructions are in direct
conflict with one another, one stating the law correctly and the other erroneously.” Id.
¶ 26 Plaintiff argues that the two instructions given in this case contradict in that “one
instruction requires the jury to base its verdict on expert opinion testimony; the other permits it.
[sic] One characterizes plaintiff’s action as against a nurse; the other as against a nursing
home.” When the instructions are compared to each other on their face, plaintiff’s former
argument has some merit. See Studt, 2011 IL 108182, ¶ 23 (“The distinction between the
evidence required to establish professional negligence versus institutional negligence,
recognized and preserved by this court in cases like Advincula and Jones, has been completely
eliminated by the 2006 IPIs.”). However, plaintiff’s latter argument ignores the fact that the
defendant in a case of this type–a nursing home–can be found liable based on both its own
negligence and the negligence of its nurse-agent.
¶ 27 In Studt, the hospital defendant in that case was defending against both “a professional
negligence claim (vicarious liability for the alleged professional negligence of its emergency
room doctors) and an institutional negligence claim (the alleged failure to assure adequate
communication between its doctors).” Id. ¶ 29. The jury in that case was instructed on both
theories. Id. ¶ 46 (Karmeier, J., specially concurring). Our supreme court held that even though
the 2006 professional negligence IPI did not accurately state the law, the hospital defendant did
not suffer prejudice. Id. ¶ 28 (majority opinion). The court found that “[e]vidence of the
standard of care supporting both theories of recovery was introduced through expert
testimony.” Id. ¶ 29.
¶ 28 The concern in Studt was that the erroneous instruction created the possibility that a
medical doctor could be found liable for professional negligence based only on the violation of
a hospital rule or regulation. Id. ¶ 23. The court reasoned that the defendant hospital did not
suffer prejudice from the erroneous instruction because although “the Hospital’s rules and
regulations for medical staff were also admitted into evidence, the rules and regulations were
not held out as establishing the standard of care for emergency room physicians. The rules and
regulations merely buttressed the expert testimony that patient care was compromised through
the emergency room doctors’ failure to communicate adequately with each other and the
Hospital’s failure to assure adequate communication. Reversal is not warranted.” Id. ¶ 29.
¶ 29 In its appropriate context, plaintiff’s argument fails because the instructions in this case are
not contradictory but coextensive statements of the law defining the standard of care that must
have been breached for defendant to be liable for Eleanor’s injuries. None of plaintiff’s
authorities are contradictory to this finding.
¶ 30 In Shehy v. Bober, 78 Ill. App. 3d 1061, 1070 (1979), this court found the giving of two
contradictory instructions constituted reversible error. There, one instruction given to the jury
said that the law presumed that the brother of a child decedent suffered a pecuniary loss by
reason of the death and the second instruction stated that there is no such presumption. Id. at
1069. There was no dispute that only one instruction correctly stated the applicable law. Id. at
1069 n.1. The Bober court also recognized that “instructions may supplement each other, but
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each one must state the law correctly as far as it goes, and they should be in harmony, so that
the jury will not be misled. The jury are not able to select from contradictory instructions one
which correctly states the law. [Citations.]” (Internal quotation marks omitted.) Id. at 1070
(quoting Bald v. Nuernberger, 267 Ill. 616, 620 (1915)). The instructions at issue in Bober did
not merely overlap and one incorrectly stated the law. In that circumstance “jury confusion as
to the applicable law is virtually inevitable.” Id. This case is different because here the two
instructions do supplement each other and each one is a correct statement of the law.
¶ 31 The decision in Endurance Paving Co. v. Pappas, 117 Ill. App. 2d 81, 87-88 (1969), is
similarly distinguishable. The Pappas court found that it was prejudicially erroneous to give
the challenged instruction. Id. at 87. There, however, the challenged instruction contained an
incorrect statement of the law, removed an issue from the case, was peremptory in form, failed
to contain all the facts, was not complete within itself, and could not be cured by other
instructions in the series. Id. at 88. So too did the instruction in Gordon v. Checker Taxi Co.,
334 Ill. App. 313, 322 (1948), contain an incorrect statement of the applicable law. The
challenged instruction in Gordon informed the jury that the plaintiff had the burden to prove
that the defendant, a common carrier, “failed to exercise reasonable care at the time of the
alleged occurrence.” Id. at 321. The Gordon court noted that the duty on the part of a carrier
toward its passengers is to exercise the highest degree of care instead of reasonable care. Id. at
322. The Gordon court found that the error, “when combined with the prejudicial conduct of
counsel referred to [in that case], constitutes reversible error.” Id.
¶ 32 Plaintiff’s reliance on these cases is misplaced because the challenged instruction in this
case is a correct statement of the law applicable in this case and suffers none of the other
defects found by the other courts. The jury was not misled as to the standard of care applicable
to the nursing home. The instruction states that the professional negligence standard of care is
applicable to its nurses and the instructions viewed as a whole properly instruct the jury as to
the standard of care applicable to the nursing home. Plaintiff’s argument the trial court
committed reversible error in giving both the institutional negligence and professional
negligence instructions fails because the instructions did not mislead the jury and fairly and
correctly stated the law where the evidence at trial supported a theory that defendant was liable
because either the institution or its professional employees were negligent or both.
¶ 33 We find the Second District’s decision in Ellig v. Delnor Community Hospital, 237 Ill.
App. 3d 396 (1992), unpersuasive. There, the court held that the trial court committed error by
instructing the jury on theories of negligence based on vicarious liability as well as institutional
negligence. Id. at 413. The instructions in that case differed from the instructions in this case in
crucial respects. The institutional negligence instruction in that case informed the jury that the
hospital had a duty to exercise ordinary care and that ordinary care means “the care a
reasonably careful person would use under circumstances similar to those shown by the
evidence.” (Internal quotation marks omitted.) Id. at 411-12. The Ellig court found that these
instructions in combination “essentially instructed that professional negligence results from a
failure to exercise the care a reasonably careful person (layperson) would use under
circumstances similar to those shown by the evidence.” (Emphases omitted.) Id. at 412. The
court found that “ordinary care should have been defined in terms of the care a reasonably
careful, similarly situated institution would exercise under circumstances similar to those
shown by the evidence.” Id. That was done in this case.
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¶ 34 The Ellig court’s primary concern was that “the instructions, as they were given in the
present case, could create a situation where the professional negligence of the
defendant/hospital could be determined by looking to the actions of a layperson.” Id. at 413.
The Ellig court went on to find that a “similar source of jury confusion” could have resulted
from the trial court’s also instructing the jury as to professional negligence. Id. The court
found:
“Prejudice also resulted from the failure to provide the jury with instructions that
clearly identified the theories of plaintiffs’ requested relief. The first asserts
defendant’s liability based upon its administrative failure ***. The second theory
asserts that defendant was vicariously liable through the actions of its medical staff.
When different theories of relief are requested, the jury should be more clearly
informed about which standards apply to which theory of recovery so that they are not
misled.” Id. at 414.
¶ 35 We find Ellig distinguishable because in this case, the jury was more clearly informed
about which standard applied to which theory of recovery. Unlike in Ellig, the jury was not led
to believe that the institution was under two distinctly different duties. Id. at 413. The
instruction in Ellig read as follows:
“In providing professional services to [decedents], hospital personnel must possess and
apply the knowledge and use the skill and care ordinarily used by reasonably
well-qualified hospital personnel practicing under the circumstances similar to those
shown by the evidence.” (Emphases added and internal quotation marks omitted.) Id. at
412.
¶ 36 In this case, the professional negligence instruction specifically informed the jury of the
standard of care applicable to nurses. The potential for confusion between the evidence of the
institution’s negligence and the evidence of the nurses’ negligence was thereby eliminated.
The court has recognized that institutions such as defendant are “an amalgam of many
individuals not all of whom are licensed medical practitioners *** [and] it is clear that at times
a hospital functions far beyond the narrow sphere of medical practice.” (Internal quotation
marks omitted.) Advincula, 176 Ill. 2d at 33. The instruction in Ellig failed to recognize the
distinction between those different functions and fostered confusion as to the standard of care
applicable to each. Here, the instruction was sufficiently specific to avoid such confusion while
giving credence to the different theories of liability to which defendant is indisputably
subjected for negligence toward its residents: both institutional and professional. See
Longnecker, 383 Ill. App. 3d at 885 (“In medical negligence cases, a hospital may face liability
under two separate and distinct theories: (1) vicarious liability for the medical negligence of its
agents or employees; and (2) liability for its own institutional negligence.”). We find the use of
both instructions was not inherently misleading in this case.
¶ 37 Based on testimony by plaintiff’s nurse expert, the jury could have found that defendant’s
nurses violated their duty to Eleanor and, based on that finding as to defendant’s nurses, found
defendant liable for her injuries under the Nursing Home Care Act. If defendant’s liability
could be based on its nurses’ breach of their duties, then defendant was entitled to have the jury
instructed on its nurses’ standard of care. Plaintiff’s assertion that nowhere in any of plaintiff’s
experts’ testimony is the “nursing standard of care” mentioned or described is based on a
myopic view of the record. Daugherty testified repeatedly about what defendant’s nurses were
required to do. She described the nurses as the “frontline” that should have triggered the
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institutional response plaintiff complains was lacking. She also opined that it would be a
“nursing judgment” to alter or to suggest altering Eleanor’s meals. We cannot find that the
evidence does not support a theory of professional negligence in this case. Therefore, giving
the professional negligence instruction was not an abuse of discretion.
¶ 38 Plaintiff’s second argument on appeal challenges the relevance of defendant’s nurses’
alleged professional negligence in this case and, thus, the propriety of instructing the jury as to
same.
¶ 39 2. Propriety of Professional Negligence Instruction
¶ 40 Plaintiff’s second argument is premised on plaintiff’s assertion that “respondeat superior
was not an element of plaintiff[’s] proof.” From that premise plaintiff argues that the trial court
committed reversible error in giving an instruction for a different kind of defendant with
substantially different standards of care. Specifically, plaintiff asserts that the fact defendant is
a corporation that acts through its employees, and that some of these employees are nurses,
“does not transform a nursing home case into a ‘professional negligence’ matter.” Nor,
plaintiff argues, does the fact that evidence of the institution’s negligence comes from doctors
and nurses convert a claim of institutional negligence into a professional negligence claim.
Plaintiff further asserts that his experts’ testimony on the nursing home standard of care “does
not entitle the defendant to recast the nature of plaintiff’s case and for the jury to be instructed
with inapplicable jury instructions.”
“Each party has the right to have the jury clearly and fairly instructed upon each theory
that was supported by the evidence. [Citation.] It is within the trial court’s discretion to
determine what issues are raised by the evidence and whether an instruction should be
given. [Citation.] To determine the propriety of a tendered instruction, we consider
whether the jury was fairly, fully, and comprehensively informed as to the relevant
principles considering the instructions as a whole. [Citation.]” (Internal quotation
marks omitted.) Brax v. Kennedy, 363 Ill. App. 3d 343, 351 (2005).
¶ 41 Plaintiff argues that an institution such as defendant has a direct institutional duty to the
patient that does not implicate individual standards of care. That statement is factually correct
on its face. Jones, 191 Ill. 2d at 298 (“the tort of institutional negligence ‘does not encompass,
whatsoever, a hospital’s responsibility for the conduct of its *** medical professionals’ ”
(quoting Advincula, 176 Ill. 2d at 31)). In the context of plaintiff’s argument that the trial court
erred in instructing the jury as to the professional negligence standard of care, however,
plaintiff’s statement is misleading. While the institutional standard of care is separate and
distinct from the professional standard of care, based on the evidence in this case plaintiff
exposed defendant to liability for a breach of either standard of care. Longnecker, 383 Ill. App.
3d at 885. Plaintiff’s evidence at trial exposed defendant to liability for its nurses’ alleged
breach of the standard of care applicable to them regardless of whether plaintiff’s complaint
can be read to specifically allege professional negligence or not. See id. at 888 (rejecting
defendant’s claim institutional negligence claim was time barred where allegations in
complaint put defendant on notice of institutional negligence theory of liability despite fact
complaint did not expressly assert an institutional negligence claim). Thus, plaintiff’s attempt
to distinguish Studt on the grounds that in that case “the plaintiff explicitly sought to hold the
hospital vicariously liable for the negligence of its emergency room physician” must fail.
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¶ 42 Plaintiff argues he sought recovery for institutional negligence and “plaintiffs are masters
of their complaint and are entitled to proceed under whichever theory they decide, so long as
the evidence supports such a theory.” Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712, 718
(1998). The decision in Reed does not suggest plaintiff suffered prejudice from the trial court’s
instructions to the jury. In Reed, the plaintiffs requested a general negligence instruction, and
the defendant requested a premises liability instruction that required the plaintiffs to prove that
the defendant had actual or constructive knowledge of a dangerous condition on the
defendant’s property. Id. at 714. The Reed court held that the trial court abused its discretion in
refusing the plaintiffs’ instruction and requiring them to prove “an additional and unnecessary
element to their cause of action.” Id. at 718. The plaintiffs’ complaint in Reed seemed to allege
both an ordinary negligence cause of action and a premises liability cause of action. Id. at 717.
The Reed court found that the plaintiffs presented evidence to support their general negligence
theory and were entitled to proceed with that theory. Id. at 718.
¶ 43 The court’s decision in Smart v. City of Chicago, 2013 IL App (1st) 120901, is similarly
distinguishable. In Smart, this court held that it would have been an abuse of discretion to give
the defendant’s tendered premises liability instruction where the plaintiff’s complaint sounded
in negligence and not premises liability. Id. ¶¶ 47, 55. The basis of the defendant’s contention
that the trial court should have given the premises liability instruction was that the defendant
was not engaged in an “activity” on the property where the plaintiff was injured and therefore
the plaintiff was improperly relieved of the burden of proving all of the elements necessary to
impose liability on a landowner for an unreasonably dangerous condition on the landowner’s
property. Id. ¶¶ 46, 50. This court rejected the defendant’s arguments finding that it was
“uncontroverted that the City’s conduct created the hazard that caused Smart’s injuries.” Id.
¶ 55. The Notes on Use of the rejected instruction in that case stated that “ ‘[i]f the action
alleges that an activity on the premises caused the injury *** use IPI 20.01 and IPI B10.03,’ ”
which is what the trial court did. (Emphases omitted.) Id. ¶ 49 (quoting Illinois Pattern Jury
Instructions, Civil, No. 120.08, Notes on Use (2006)). Thus, this court held that “[t]he trial
court properly adhered to the guidance dictated by the Notes on Use for IPI Civil (2006) No.
120.02 and IPI Civil (2006) No. 120.08 and did not err in tendering duty and burden of proof
instructions applicable to general negligence cases.” Id. ¶ 57.
¶ 44 In Smart, the proffered instruction did not apply to the plaintiff’s claim and, like Reed,
giving the requested instruction would have required the plaintiff to prove “an additional and
unnecessary element to their cause of action.” Reed, 298 Ill. App. 3d at 718. In this case, the
trial court’s instructions did not prevent plaintiff from proceeding under his chosen theory of
institutional negligence. The court in this case did not refuse the institutional negligence
instruction; but the evidence adduced at trial also supported a theory of defendant’s liability
based on the professional negligence of its staff. Defendant was entitled to have the jury
instructed on those principles of law. Brax, 363 Ill. App. 3d at 351.
¶ 45 We interpret plaintiff’s argument that the conduct of which he complained “does not
implicate medical judgment of defendant’s staff, but rather the failure to deliver all the services
and resources [defendant] represented were available,” and, therefore, “instructing the jury on
the professional standard of care was error,” as an attempt to preempt our finding that his
evidence encompassed defendant’s potential vicarious liability for its nurses’ professional
negligence. In support, plaintiff cites Advincula, 176 Ill. 2d at 28, in which our supreme court
wrote that it has “recognized a new and independent duty of hospitals to review and supervise
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the treatment of their patients that is administrative or managerial in character.” Advincula, 176
Ill. 2d at 28. The Advincula court cited Johnson v. St. Bernard Hospital, 79 Ill. App. 3d 709,
718 (1979), for its holding that the duty imposed on hospitals in this context does not require
medical expertise but administrative expertise to enforce rules and regulations adopted to
ensure a smoothly run hospital and adequate patient care. Advincula, 176 Ill. 2d at 28-29
(quoting St. Bernard Hospital, 79 Ill. App. 3d at 718).
¶ 46 Nothing in Advincula diminishes the duality of defendant’s potential liability. The
Advincula court held that an institution fulfilling its individual duty “must conform to the legal
standard of ‘reasonable conduct’ in light of the apparent risk” but that the standard of care in
cases based on vicarious liability for the conduct of agent or employee medical professionals
remains the standard applied to all professionals. Advincula, 176 Ill. 2d at 29-30. On appeal,
plaintiff has not discussed or suggested that the evidence did not support the theory that
defendant was potentially vicariously liable for the professional negligence of its nurses and
for that reason defendant was not entitled to its instruction. Compare Myers v. Heritage
Enterprises, Inc., 354 Ill. App. 3d 241, 248 (2004) (holding trial court abused its discretion by
instructing the jury on professional negligence rather than ordinary negligence where conduct
resulting in injury was performed solely by certified nursing assistants and finding that given
the minimal training requirements and that nursing assistants provide primarily personal care
the position is not a professional position requiring the professional negligence instruction).
There is no requirement that the professional employee be named a party in a claim against the
institution based on vicarious liability. See generally Studt, 2011 IL 108182, ¶ 5; McCottrell v.
City of Chicago, 135 Ill. App. 3d 517, 519 (1985) (“the servant is not a necessary party in an
action against the master”).
¶ 47 Defendant had an independent right to have the jury fully and properly instructed on each
theory of liability supported by the evidence. Brax, 363 Ill. App. 3d at 351-52. See also
Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101 (1995) (“All that is required to
justify the giving of an instruction is that there be some evidence in the record to justify the
theory of the instruction.” (Internal quotation marks omitted.) (quoting Lowe v. Norfolk &
Western Ry. Co., 124 Ill. App. 3d 80, 118 (1984))). We find no error in the trial court’s giving
of dual instructions on institutional negligence and professional negligence. Accordingly, the
trial court’s judgment on the jury’s verdict in favor of defendant is affirmed.
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, the trial court’s judgment on the jury’s verdict in favor of
defendant is affirmed.
¶ 50 Affirmed.
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