Studt v. Sherman Health Systems

ILLINOIS OFFICIAL REPORTS

Supreme Court

Studt v. Sherman Health Systems, 2011 IL 108182

Caption in Supreme JANE STUDT et al., Appellees, v. SHERMAN HEALTH SYSTEMS,

Court: d/b/a Sherman Hospital, Appellant.

Docket No. 108182

Filed June 16, 2011

Held Illinois Pattern Jury Instructions, Civil, No. 105.01 (2006) does not

(Note: This syllabus accurately state Illinois law as to, first, the type of evidence a jury may

constitutes no part of the consider in determining whether a physician has complied with the

opinion of the court but standard of care and, second, the standard of care for evaluating the

has been prepared by the reasonableness of a physician’s conduct.

Reporter of Decisions for

the convenience of the

reader.)

Decision Under Appeal from the Appellate Court for the Second District, reported at

Review 387 Ill. App. 3d 401; heard in that court on appeal from the Circuit

Court of Kane County, the Hon. Donald J. Fabian, Judge, presiding.

Judgment Affirmed.

Counsel on Hugh C. Griffin, Stevie A. Starnes and Jacob Z. Goldstein, of Hall,

Appeal Prangle & Schoonveld, LLC, of Chicago, and John E. Norton and

Thomas J. Long, of Norton, Mancini & Weiler, of Wheaton, for

appellant.

Kenneth C. Chessick, John W. Fisk and Julie A. Filimonov, of

Schaumburg, for appellees.

David S. Osborne, of Lindsay, Rappaport & Postel, LLC, and Robert

Marc Chemers, of Pretzel & Stouffer, Chtrd., all of Chicago, for amicus

curiae Illinois Association of Defense Trial Counsel.

Bruce R. Pfaff, of Chicago, for amicus curiae Illinois Trial Lawyers

Association.

Justices CHIEF JUSTICE KILBRIDE delivered the judgment of the court,

with opinion.

Justices Freeman, Thomas, Garman, Burke, and Theis concurred in

the judgment and opinion.

Justice Karmeier specially concurred, with opinion

OPINION

¶1 In this appeal, we address whether Illinois Pattern Jury Instructions, Civil, No. 105.01

(2006) (IPI Civil (2006) No. 105.01) correctly states Illinois law on the standard of care in

professional negligence cases. Plaintiff, Jane Studt, filed a medical malpractice action in the

circuit court of Kane County against defendant, Sherman Health Systems, doing business as

Sherman Hospital. Jane alleged the Hospital’s emergency room doctors failed to diagnose

her appendicitis. Jane’s husband brought a consortium claim.

¶2 Over the Hospital’s objection, the circuit court instructed the jury with IPI Civil (2006)

No. 105.01. The jury returned a verdict against the Hospital. The appellate court affirmed the

verdict, holding that IPI Civil (2006) No. 105.01 correctly states the law. 387 Ill. App. 3d

401. This court allowed the Hospital’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb.

26, 2010). We hold that IPI Civil (2006) No. 105.01 does not accurately state Illinois law,

but affirm the appellate court judgment upholding the jury verdict.

¶3 I. BACKGROUND

¶4 On October 14, 2001, Jane Studt visited the Hospital’s emergency room with abdominal

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pain. The emergency room physicians failed to diagnose her appendicitis and sent her home

with prescriptions to treat a urinary tract infection and pain. Two days later, Jane’s regular

physician admitted her to the Hospital and ordered a surgical consult. Jane’s ruptured and

gangrenous appendix was surgically removed. Jane subsequently required multiple

hospitalizations and surgeries for recurrent infections and peritonitis.

¶5 On May 22, 2003, Jane and her husband filed suit against the Hospital. Plaintiffs alleged

institutional negligence and vicarious liability. It is undisputed that, at trial, only experts

testified on the standard of care. The trial evidence is not at issue in this appeal. We will not,

therefore, recite the trial testimony.

¶6 At the conclusion of the evidence, the circuit court held a jury instruction conference.

Defense counsel objected to giving IPI Civil (2006) No. 105.01. Defense counsel instead

tendered an instruction based on the prior version, Illinois Pattern Jury Instructions, Civil,

No. 105.01 (2005) (IPI Civil (2005) No. 105.01).

¶7 One difference between the two instructions is that IPI Civil (2005) No. 105.01 defined

standard of care in terms of a “reasonably well-qualified” professional, while IPI Civil

(2006) No. 105.01 uses the terms “reasonably careful.” (Emphases added.) IPI Civil (2006)

No. 105.01, cmt., at 279. Defense counsel submitted a memorandum of law urging that IPI

Civil (2006) No. 105.01 is an incorrect statement of Illinois law on the standard for

professional negligence. Specifically, the Hospital argued:

“In exchanging ‘possess and apply the knowledge and use the skill and care

ordinarily used by a reasonably well qualified’ professional for ‘reasonably careful,’

the I.P.I. Committee has essentially invited jurors to apply their own reasonable

person standard rather than the professional standard as shown by the evidence.”

¶8 The Hospital also argued that the language of IPI Civil (2006) No. 105.01 suggesting that

professional negligence can be proven through evidence of bylaws, rules, regulations,

policies, procedures, evidence of community practice and other sources is misleading.

According to the Hospital, this evidence is insufficient to establish professional negligence

absent competent expert opinion testimony. The trial court overruled the defense objections

and gave plaintiffs’ instruction based on IPI Civil (2006) No. 105.01.

¶9 The Hospital did not submit special interrogatories to the jury and the jury returned a

general verdict against the Hospital. The circuit court denied the Hospital’s posttrial motion

for a new trial and entered judgment on the jury’s verdict.

¶ 10 The Hospital’s sole argument on appeal to the appellate court was that plaintiffs’

instruction based on IPI Civil (2006) No. 105.01 is an incorrect statement of Illinois law and

constituted reversible error. The appellate court affirmed the trial court’s judgment, holding

that the “reasonably careful” language in IPI Civil (2006) No. 105.01 accurately states the

law. 387 Ill. App. 3d at 404. The appellate court determined that the complete language of

IPI Civil (2006) No. 105.01 leaves no question that jurors should determine the standard of

care based on the evidence and not on their personal knowledge. 387 Ill. App. 3d at 404. The

appellate court subsequently denied the Hospital’s petition for rehearing. This court allowed

the Hospital’s petition for leave to appeal. Ill. S. Ct. R. 315.

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¶ 11 II. ANALYSIS

¶ 12 The Hospital’s sole contention in this appeal is that IPI Civil (2006) No. 105.01 does not

accurately state Illinois law in three ways. First, the Hospital argues the instruction does not

accurately state the type of evidence the jury may consider in determining whether a

physician has complied with the standard of care. Second, the Hospital contends the

instruction fails to provide the jury with the standard of care for evaluating the

reasonableness of a physician’s conduct. Finally, according to the Hospital, the instruction

erroneously instructed the jury on the use of personal knowledge in determining the standard

of care.

¶ 13 Generally, a trial court’s decision to grant or deny an instruction is reviewed for abuse

of discretion. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002). “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, 199 Ill. 2d at 505. 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.

Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163, 170 (2008).

¶ 14 Supreme Court Rule 239(a) requires that “[w]henever Illinois Pattern Jury Instructions

(IPI) contains an instruction applicable in a civil case, giving due consideration to the facts

and the prevailing law, and the court determines that the jury should be instructed on the

subject, the IPI instruction shall be used, unless the court determines that it does not

accurately state the law.” Ill. S. Ct. R. 239(a) (eff. Jan. 1, 1999). A non-IPI instruction may

be used if the court determines that the pattern instruction does not accurately state the law.

Ill. S. Ct. R. 239(b).

¶ 15 The trial court gave pattern instruction IPI Civil (2006) No. 105.01 for professional

negligence cases, but the Hospital argued that it is not a correct statement of Illinois law. We

now review whether IPI Civil (2006) No. 105.01 is a correct statement of Illinois law.

¶ 16 Whether IPI Civil (2006) No. 105.01 Accurately States Illinois

Law on the Type of Evidence the Jury May Consider in

Determining Professional Negligence

¶ 17 The Hospital argues that IPI Civil (2006) No. 105.01 does not accurately state Illinois law

on the type of evidence the jury may consider in determining whether a physician has

complied with the standard of care. At the time of trial, IPI Civil (2006) contained an

instruction applicable to claims for professional negligence. IPI Civil (2006) No. 105.01

provides:

“105.01 Professional Negligence–Duty

‘Professional negligence’ by a _____________________

[specialist/doctor/nurse/therapist/health care provider/accountant/lawyer/other] is the

failure to do something that a reasonably careful ____________________

[specialist/doctor/nurse/therapist/health care provider/accountant/lawyer/other]

[practicing in the same or similar localities] ______________________________

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[specialist/doctor/nurse/therapist/health care provider/accountant/lawyer/other] would

do, or the doing of something that a reasonably careful __________________

[specialist/doctor/nurse/ therapist/health care provider/accountant/lawyer/ other]

would not do, under circumstances similar to those shown by the evidence.

The phrase [‘violation of the standard of care’] [‘deviation from the standard of

practice’] means the same thing as ‘professional negligence.’

[To determine what the standard [of care] [of practice] required in this case, you

must rely upon (opinion testimony from qualified witnesses) (evidence of

professional standards) (evidence of by-laws/rules regulations/policies/procedures)

(evidence of community practice) (and other sources). You must not attempt to

determine this question from any personal knowledge you have.] The law does not

say how a reasonably careful _______________________________________

[specialist/doctor/nurse/therapist/health care provider/accountant/lawyer/other] would

act under these circumstances. That is for you to decide.” IPI Civil (2006) No.

105.01.

¶ 18 According to the Hospital, a jury is limited to considering expert testimony and, in some

instances, evidence of professional standards or conduct in deciding whether a physician’s

conduct met the standard of professional care. The Hospital submits that IPI Civil (2006) No.

105.01 is a misstatement of law because it erroneously instructs that the jury may consider

a broad array of other evidentiary sources including bylaws, rules, regulations, policies,

procedures, community practice and other evidence. The Hospital argues that these other

evidentiary sources can be properly considered only in institutional negligence claims against

a hospital, not claims based on vicarious liability for professional negligence. The Hospital

states that IPI Civil (2006) No. 105.01 essentially eliminated the distinction between

professional negligence and institutional negligence. Consequently the Hospital claims that,

under IPI Civil (2006) No. 105.01, there is no limit on what evidence the jury may consider

in deciding whether the emergency room doctors committed professional negligence.

¶ 19 Plaintiffs argue that the Hospital forfeited any objection to the language referencing

“evidence of professional standards, evidence of bylaws, rules, regulations, policies and

procedures and other evidence presented” by failing to object to it during the jury instruction

conference. “A party forfeits the right to challenge a jury instruction that was given at trial

unless it makes a timely and specific objection to the instruction and tenders an alternative,

remedial instruction to the trial court.” Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 557

(2008). We note, however, that the Hospital objected in its written memorandum.

Accordingly, the Hospital has not forfeited its objection.

¶ 20 We now consider whether IPI Civil (2006) No. 105.01 accurately states Illinois law on

the type of evidence the jury may consider in determining whether a physician has complied

with the standard of care. “[I]n professional negligence cases, *** the plaintiff bears a burden

to establish the standard of care through expert witness testimony.” Advincula v. United

Blood Services, 176 Ill. 2d 1, 24 (1996). This requirement is based on the simple fact that

without expert testimony, jurors, not skilled in the profession, are not equipped to judge the

professional’s conduct. Advincula, 176 Ill. 2d at 24, 33; Walski v. Tiesenga, 72 Ill. 2d 249,

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256 (1978). Courts have recognized two exceptions to this rule: where the professional’s

conduct is so grossly negligent, or the procedure so common, that the jury can readily

appraise it without the need for expert testimony. Jones v. Chicago HMO Ltd. of Illinois, 191

Ill. 2d 278, 296 (2000).

¶ 21 In contrast to professional negligence, institutional negligence does not necessarily

require expert testimony and may be established by a wide array of evidence. As this court

explained in the context of an institutional negligence claim against a hospital:

“[A] modern hospital *** is an amalgam of many individuals not all of whom are

licensed medical practitioners. Moreover, it is clear that at times a hospital functions

far beyond the narrow sphere of medical practice. Accordingly, while various

medical judgments are necessarily a daily part of hospital administration, they do not

constitute the entirety of a hospital’s function, as is the case with single medical

practitioners. Thus, we deem it appropriate to the diversity inherent in hospital

administration that a broad range of evidence be available to establish the applicable

standard of care.” Greenberg v. Michael Reese Hospital, 83 Ill. 2d 282, 293 (1980)

(citing Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965)).

In Advincula, this court compared the role of expert testimony in professional negligence

cases and in institutional negligence cases, stating:

“[I]t is the inherent diversity in hospital administration which permits a broad range

of evidence, including expert witness testimony, administrative rules and regulations,

to establish the reasonableness standard of care, but does not call necessarily for such

proofs. This relationship contrasts with that between professional conduct and proofs

relevant to establish the appropriate professional standard of care; such proofs in the

form of expert witness testimony or other evidence of professional standards are

generally required because they are generally necessary to evaluate conduct which is

likely arcane to lay jurors.” (Emphasis in original.) Advincula, 176 Ill. 2d at 33.

¶ 22 In Jones, this court again addressed the difference between institutional negligence and

professional negligence, and the proofs permitted or required in each type of action. Tracing

the development of case law considering the institutional negligence of hospitals, we

concluded that Darling and its progeny have firmly established that the standard of care

applicable to a hospital may be proved by a number of evidentiary sources, including, but not

limited to, hospital bylaws, statutes, accreditation standards, custom and community practice,

but that expert testimony is not always required. Jones, 191 Ill. 2d at 296-98.

¶ 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. Under the 2006 instructions, the

evidence that a jury may consider in determining the standard of care in professional

negligence cases is identical to the evidence that a jury may consider in institutional

negligence cases. Compare IPI Civil (2006) No. 105.01 (professional negligence), with IPI

Civil (2006) No. 105.03.01 (institutional negligence). The necessity of expert testimony in

professional negligence cases is not reflected in the 2006 professional negligence IPI.

Bylaws, rules, regulations, policies, and procedures are now on equal footing with expert

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testimony in judging a professional’s conduct. Thus, under the 2006 IPIs, the possibility

exists that a medical doctor could be found liable for professional negligence based only on

the violation of a hospital rule or regulation. This is not the law in Illinois.

¶ 24 We recognize, however, that the 2005 professional negligence IPI already permitted a

professional standard of care to be established through nonexpert testimony, i.e., “evidence

of professional standards or conduct.” IPI Civil (2005) No. 105.01. The notes on use to the

2005 IPI cite three cases in support: Ohligschlager v. Proctor Community Hospital, 55 Ill.

2d 411 (1973), Metz v. Fairbury Hospital, 118 Ill. App. 3d 1093 (1983), and Smith v. South

Shore Hospital, 187 Ill. App. 3d 847 (1989).

¶ 25 In Ohligschlager, we held that the drug manufacturer’s explicit instructions for the proper

administration and dosing of the drug, and warning of the hazards accompanying improper

administration, provided proof of the professional standards applicable to the defendant

doctor “which would ordinarily be shown by expert medical testimony.” Ohligschlager, 55

Ill. 2d at 417. In Metz, the appellate court held that the expert testimony, provided by the

defendant doctors, did not establish a breach of the standard of care. Metz, 118 Ill. App. 3d

at 1098. In Smith, the appellate court noted that certain professional guides, such as hospital

licensing regulations, accreditation standards, bylaws and instructions for the use of drugs,

may serve as a substitute for expert testimony, but cited only Darling, an institutional

negligence case, and Ohligschlager. Smith, 187 Ill. App. 3d at 856.

¶ 26 This trio of cases provides, at most, only limited support for the use of evidence other

than expert testimony in a professional negligence case. Thus the “evidence of professional

standards or conduct” language found in the 2005 IPI should not be viewed as an alternative

to expert testimony but, instead, only as a limited exception.

¶ 27 Notably, the 2006 professional negligence IPI text offers no case law or any other

justification for expanding the nonexpert evidentiary sources applicable to a professional

negligence action. Nor does the text hint at any reason for placing expert testimony on a par

with bylaws, rules, regulations, policies and procedures. Moreover, cases such as Advincula

and Jones firmly establish that while expert testimony is permitted in institutional negligence

cases, it is required in professional negligence cases. Accordingly, we determine that the

2006 IPI effects a significant and unwarranted departure from the established law governing

professional negligence cases.

¶ 28 Because the 2006 professional negligence IPI does not accurately state the law, the trial

court erred in giving the instruction to the jury. See Ill. S. Ct. R. 239(a). Reversal is

warranted if the error resulted in “serious prejudice” to the Hospital’s right to a fair trial.

Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007). See also Schultz v. Northeast Illinois

Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002) (“reviewing court ordinarily will

not reverse a trial court for giving faulty instructions unless they clearly misled the jury and

resulted in prejudice to the appellant”). Review of the trial testimony indicates that the

Hospital did not suffer serious prejudice.

¶ 29 The Hospital was defending against 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).

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Evidence of the standard of care supporting both theories of recovery was introduced through

expert testimony. Though 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.

¶ 30 In another case, however, with different proofs and theories of recovery, serious prejudice

could very well result where a jury is instructed to consider the same evidence in deciding

the distinct claims of professional negligence and institutional negligence, particularly where

expert testimony is lacking. In such cases, as noted above, a jury could find a physician liable

for professional negligence based only on the violation of a hospital rule or regulation.

¶ 31 For the foregoing reasons, we hold that the version of IPI Civil (2006) No. 105.01 given

at trial constituted error because it did not limit the jury’s consideration to expert testimony.

However, we hold that reversal is not warranted because the error did not result in “serious

prejudice” to the Hospital’s right to a fair trial.

¶ 32 Whether IPI Civil (2006) No. 105.01 Provides the Proper Standard

of Care in Professional Negligence Cases

¶ 33 The Hospital also challenges another change in the professional negligence IPI. While

the 2005 version states that the professional “must possess and apply the knowledge and use

the skill and care ordinarily used by a reasonably well-qualified [professional]” (IPI Civil

(2005) No. 105.01), the 2006 version states that professional negligence “is the failure to do

something that a reasonably careful [professional] would do, or the doing of something that

a reasonably careful [professional] would not do, under circumstances similar to those shown

by the evidence” (IPI Civil (2006) No. 105.01).

¶ 34 As explained in the Restatement (Second) of Torts, the skill a professional must exercise

is “that special form of competence which is not part of the ordinary equipment of the

reasonable man, but which is the result of acquired learning, and aptitude developed by

special training and experience.” Restatement (Second) of Torts §299A, cmt. a, at 73 (1965).

The 2006 professional negligence IPI is incomplete because it contains no reference to the

professional’s knowledge, skill, and care (or knowledge, skill, and ability) and, therefore,

does not accurately state Illinois law as to the standard of care applicable in professional

negligence actions. See Loman v. Freeman, 229 Ill. 2d 104, 119 (2008); Jinkins v. Lee, 209

Ill. 2d 320, 336 (2004); Jones, 191 Ill. 2d at 295; Advincula, 176 Ill. 2d at 23; Matarese v.

Buka, 386 Ill. App. 3d 176, 184-85 (2008). Accordingly, we hold that the trial court erred

when it instructed the jury in accordance with the 2006 IPI. See Ill. S. Ct. R. 239(a). As noted

earlier, reversal is warranted if the error resulted in serious prejudice to the Hospital’s right

to a fair trial. See Heastie, 226 Ill. 2d at 543. Based on the expert testimony presented at trial

by both parties, the arguments of counsel, the overall manner of the trial, and the jury

instructions as a whole, we cannot conclude that the incompleteness in the professional

negligence instruction requires reversal. Notably, Dr. Frank Baker, the plaintiff’s emergency

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medicine expert, testified extensively as to the role of the emergency room physician in

general, the role of the Hospital’s two emergency room doctors who evaluated the plaintiff,

and how their conduct violated the standard of care. The jury was adequately informed, even

if not formally instructed, that the Hospital’s emergency room physicians were required to

use the same degree of knowledge, skill, and ability normally possessed by emergency room

physicians under similar circumstances.

¶ 35 Whether IPI Civil (2006) No. 105.01 Erroneously Instructs the Jury

on the Use of Personal Knowledge

¶ 36 The Hospital further argues that IPI Civil (2006) No. 105.01 gives the jury inconsistent

and confusing direction on the use of personal knowledge in determining the standard of

care. According to the Hospital, the instruction erroneously combines the “reasonably careful

doctor” language with the statement that “[t]he law does not say how a reasonably careful

physician would act under these circumstances. That is for [the jury] to decide.” The Hospital

contends that this instruction encourages jurors to decide the case based on their own

personal view of what is reasonable.

¶ 37 In this case, the appellate court noted that two appellate decisions conflict on the

correctness of this portion of IPI Civil (2006) No. 105.01. 387 Ill. App. 3d at 405. In LaSalle

Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806 (2008), the appellate court

held that the “reasonably careful” language accurately states the law because “ ‘the standard

of care for all professionals is “the use of the same degree of knowledge, skill and ability as

an ordinarily careful professional would exercise under similar circumstances.” ’ ” LaSalle

Bank, 384 Ill. App. 3d at 816-17 (quoting Loman, 229 Ill. 2d at 119, quoting Advincula, 176

Ill. 2d at 23). In contrast, the appellate court in Matarese v. Buka, 386 Ill. App. 3d 176

(2008), held that additional modifications to IPI Civil (2006) No. 105.01 were necessary to

prevent jury confusion. Specifically, Matarese determined that the instruction “initially tells

jurors not to determine the standard of care from their personal knowledge, but then seems

to contradict itself by adding that the law does not say how a reasonably careful professional

would act under the circumstances and that is for the jurors to decide.” Matarese, 386 Ill.

App. 3d at 185. The appellate court in this case disagreed with Matarese and followed

LaSalle Bank.

¶ 38 We must determine 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, 199 Ill. 2d at

505. A brief examination of the instruction answers the question on the use of personal

knowledge. Importantly, just before the language the Hospital finds objectionable, the

instruction states that jurors “must not attempt to determine [the standard of care] from any

personal knowledge.” Thus, IPI Civil (2006) No. 105.01 expressly instructs the jurors that

they are not to decide professional negligence based on their own views of how a reasonably

careful physician would act under the circumstances. Additionally, personal knowledge is

not listed as an evidentiary source the jury may consider.

¶ 39 We therefore reject the Hospital’s argument that IPI Civil (2006) No. 105.01 gives the

jury inconsistent and confusing direction on the use of personal knowledge in determining

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the standard of care. Given our determination, it is unnecessary to address plaintiffs’

alternative contention that their institutional negligence claim alone supports the jury’s

verdict.

¶ 40 III. CONCLUSION

¶ 41 For the foregoing reasons we hold that the 2006 professional negligence IPI does not

accurately state Illinois law as to the evidence a jury may consider and the applicable

standard of care, but, nevertheless, uphold the appellate court judgment affirming the jury

verdict.

¶ 42 Affirmed.

¶ 43 JUSTICE KARMEIER, specially concurring:

¶ 44 I agree with the result reached by the majority. The judgment of the circuit court was

properly affirmed by the appellate court. I also agree with the majority that the use of IPI

Civil (2006) No. 105.01 in this case was not reversible error. I write separately because I

would reach that conclusion for different reasons than those expressed by my colleagues.

¶ 45 As the majority correctly points out, the sole issue presented by Sherman Hospital on this

appeal is that IPI Civil (2006) No. 105.01 does not accurately state Illinois law applicable to

claims alleging professional negligence. The record clearly shows, however, that professional

negligence was not the only theory under which plaintiffs sought recovery from Sherman

Hospital. In addition to their professional negligence claim, which asserted that Sherman

Hospital should be held vicariously liable for the negligence of the emergency doctors who

failed to diagnose Mrs. Studt’s appendicitis, plaintiffs also sought recovery from Sherman

Hospital based on the direct institutional negligence of the hospital itself.

¶ 46 The jury was instructed on both theories using the versions of the IPI civil instruction at

issue in this case. Sherman Hospital does not contend that the instructions were problematic

with respect to plaintiffs’ institutional negligence claim. To the extent that the instructions

are claimed to be defective, the flaws pertain exclusively to the claim premised on the

professional negligence of the emergency room doctors.

¶ 47 Sherman Hospital faces a formidable obstacle in presenting this issue on appeal because

the jury returned a general verdict. It did not specify on which of the two theories it relied in

finding the hospital negligent, and no special interrogatories were requested to clarify the

basis for the jury’s verdict. The reason this is problematic for Sherman Hospital is that our

Code of Civil Procedure expressly provides that where, as here, multiple grounds of recovery

“are pleaded in support of the same claim, whether in the same or different counts, an entire

verdict rendered for that claim shall not be set aside or reversed for the reason that any

ground is defective, if one or more of the grounds is sufficient to sustain the verdict.” 735

ILCS 5/2–1201(d) (West 2006). Similarly our court has held that when “there is a general

verdict and more than one theory is presented, the verdict will be upheld if there was

sufficient evidence to sustain either theory, and the defendant, having failed to request

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special interrogatories, cannot complain.” Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987).

¶ 48 In light of this authority, any problem regarding the propriety of the jury instruction on

plaintiffs’ professional negligence count is immaterial, as a matter of law, unless Sherman

Hospital can establish that there was not sufficient evidence to sustain a verdict based on

plaintiffs’ alternative count asserting institutional negligence. Plaintiffs argued vigorously

in the appellate court that their institutional negligence claim alone would, in fact, be

sufficient to support the jury’s verdict. Although the appellate court rejected plaintiffs’

argument, it did so, in part, under the belief that plaintiffs had forfeited the issue by failing

to present it in response to Sherman Hospital’s posttrial motion. See 387 Ill. App. 3d 401,

403 n.1. This was a fundamental misapprehension of the law. There was no forfeiture, for

it is well established that an appellee may argue in support of the judgment on any basis

which appears in the record (see Hayes v. Board of Fire & Police Commissioners, 230 Ill.

App. 3d 707, 710 (1992)), and an appellate court may affirm a trial court’s judgment on any

grounds which the record supports (see Water Tower Realty Co. v. Fordham 25 E. Superior,

L.L.C., 404 Ill. App. 3d 658, 665 (2010)), even where those grounds were not argued by the

parties (see Redd v. Woodford County Swine Breeders, Inc., 54 Ill. App. 3d 562, 565 (1977)).

¶ 49 Illinois has long recognized that hospitals may be held liable for institutional negligence,

which is also known as direct corporate negligence. Under this doctrine, liability is

predicated on the hospital’s own negligence, not the negligence of the physician who treated

the patient. The hospital’s duty is ordinarily administrative or managerial in character. To

satisfy the duty, a hospital must act as would a “reasonably careful hospital” under the

circumstances. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291-92 (2000).

¶ 50 Whether the hospital breached its duty in this case was a question of fact for the jury to

decide. See Iseberg v. Gross, 227 Ill. 2d 78, 87 (2007). In its posttrial motion, Sherman

Hospital contended that the jury’s verdict was contrary to the manifest weight of the

evidence, but a verdict is contrary to the manifest weight of the evidence only when the

opposite conclusion is clearly evident or when the jury’s findings prove to be unreasonable,

arbitrary and not based upon any of the evidence. York v. Rush-Presbyterian-St. Luke’s

Medical Center, 222 Ill. 2d 147, 179 (2006). In discussing the sufficiency of the evidence in

this case, the appellate court made no mention of this standard. Instead, it undertook its own

assessment of the record. See 387 Ill. App. 3d at 402-03. This is something it should not have

done, for “[i]t is well established that, in an appeal from a jury verdict, a reviewing court may

not simply reweigh the evidence and substitute its judgment for that of the jury.” Snelson v.

Kamm, 204 Ill. 2d 1, 35 (2003).

¶ 51 Assuming for the sake of argument that the appellate court could properly have

concluded that the evidence would not support a verdict against Sherman Hospital based on

the theory of institutional negligence, leaving the professional negligence theory as the only

potentially viable basis for recovery, I would agree with the majority’s analysis of IPI Civil

(2006) No. 105.01 as to whether the instruction (1) properly stated the standard of care for

claims based on professional negligence or (2) erroneously instructed the jury on use of

personal knowledge. I would also agree with the substance of the majority’s discussion of

Sherman Hospital’s primary challenge to the instruction, namely, that the instruction

impermissibly expands the types of evidence which may be considered by the jury in

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professional negligence actions. In my view, however, that issue is not properly before us.

¶ 52 Sherman Hospital admitted both in its brief and at oral argument that all the evidence

adduced by plaintiffs regarding the standard of care applicable to their professional

negligence claim consisted of permissible expert testimony. None of the other types of

evidence mentioned in IPI Civil (2006) No. 105.01 were presented to the jury with respect

to that claim. It was therefore impossible for the jury to have considered evidence it should

not have. That being so, the challenged expansiveness of the instruction could not have

affected the outcome and therefore worked no prejudice on Sherman Hospital. There being

no prejudice, this aspect of the instruction could not serve as a basis for disturbing the

judgment of the circuit court. See Schultz v. Northeast Illinois Regional Commuter R.R.

Corp., 201 Ill. 2d 260, 274 (2002). Where the result of a case will not be affected by how an

issue is decided, the courts of Illinois normally refrain from deciding that issue. See In re

Alfred H.H., 233 Ill. 2d 345, 351 (2009). As we have repeatedly stated, advisory opinions are

to be avoided. See, e.g., People v. Hampton, 225 Ill. 2d 238 (2007).

¶ 53 The majority seeks to avoid this established principle of judicial review with the

observation that “[i]n another case *** with different proofs and theories of recovery, serious

prejudice could very well result where a jury is instructed to consider the same evidence in

deciding the distinct claims of professional negligence and institutional negligence,

particularly where expert testimony is lacking.” Supra ¶ 30. While I do not disagree with this

possibility and appreciate the value of clarifying the law, I am also mindful of our

admonition that courts of review should not ordinarily decide abstract questions, or review

cases merely to establish precedent. People v. Latona, 184 Ill. 2d 260, 281 (1998). In my

view, we should not depart from these principles absent compelling justification for doing

so. I see no such justification here. Accordingly, while I agree with the result reached by the

majority, I would leave resolution of this issue for another day.

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