Biundo v. Bolton

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Appellate Court Date: 2021.03.11

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Biundo v. Bolton, 2020 IL App (1st) 191970

Appellate Court FARA BIUNDO, as Special Administrator of the Estate of Zenah S.

Caption Muhdi, Deceased, Plaintiff-Appellant, v. MICHAELINA BOLTON,

M.D.; TRALE PERMAR, M.D.; HIUFUNG LAM, M.D.;

ADVOCATE HEALTH AND HOSPITALS CORPORATION; and

ADVOCATE CHRIST MEDICAL CENTER, Defendants-Appellees.

District & No. First District, Third Division

No. 1-19-1970

Filed September 9, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 2016-L-000102;

Review the Hon. Daniel Joseph Lynch, Judge, presiding.

Judgment Affirmed.

Counsel on Ronald J. Broida, Joseph K. Nichele, and Nora H. McGuire, of Broida

Appeal & Nichele, Ltd., of Naperville, for appellant.

Krista R. Frick, of Barker Castro Kuban & Steinback, LLC, of

Chicago, for appellees.

Panel JUSTICE McBRIDE delivered the judgment of the court, with

opinion.

Presiding Justice Howse and Justice Ellis concurred in the judgment

and opinion.

OPINION

¶1 Zenah S. Muhdi 1 died when she was 17 years old from a heroin overdose, the day after she

was treated for a prior heroin overdose and discharged from Advocate Christ Medical Center’s

(ACMC) emergency department. Her mother, Fara Biundo, as special administrator of

Muhdi’s estate, sued ACMC, Advocate Health and Hospitals Corporation, and three

emergency department physicians for negligence, alleging breach of the standard of care when

Muhdi was not admitted or held after the first overdose, until she could be placed in an inpatient

substance abuse facility. Biundo now appeals from the judgment entered on the jury’s verdict

in favor of the defendants, arguing that the trial court abused its discretion by granting the

defendants’ motions in limine Nos. 27 and 37 regarding the testimony of Biundo’s retained

emergency department expert, the jury’s verdict was against the manifest weight of the

evidence, and the trial court erred in denying Biundo’s posttrial motion for judgment

notwithstanding the verdict (JNOV) or a new trial. The defendants respond that motion

in limine No. 27 was properly granted because Biundo’s retained emergency department expert

was not qualified to testify about a psychiatrist’s standard of care, motion in limine No. 37 was

properly granted because Biundo failed to disclose the purported opinion and because the

expert’s trial testimony indicates he did not actually hold that opinion and that Biundo’s other

arguments lack evidentiary support.

¶2 The trial court denied Biundo’s motion for JNOV on August 29, 2019, and Biundo timely

filed her notice of appeal on September 26, 2019. We have jurisdiction pursuant to Illinois

Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), from this appeal

from a final judgment.

¶3 Biundo testified that she grew up in Burbank, Illinois, and raised Muhdi, her only child, in

that community with the help of Muhdi’s uncle, Angelo Biundo, and grandmother, Girolama

Biundo. Muhdi’s father, Fatooh Muhdi, had lived with Biundo and their daughter for two years

after her birth in 1996, and he subsequently saw her every other weekend. Muhdi had two half-

sisters and a half-brother. During Muhdi’s junior year in high school, her grades slipped, she

was depressed, and her mother found bags of white powder in Muhdi’s bedroom, which testing

confirmed were opioids. In June 2013, between Muhdi’s junior and senior years in high school,

Biundo found Muhdi slumped over in her bedroom with white powder next to her. Muhdi was

taken to ACMC, and at the hospital, Biundo denied that her daughter had a history of illicit

drug usage. Muhdi’s toxicology test was positive for benzodiazepines, opioids, and

cannabinoids. Before discharging Muhdi, ACMC gave Biundo information about drug

treatment programs and facilities. Biundo and Muhdi returned to the emergency room later that

same day following a motor vehicle accident while Biundo was driving. Muhdi admitted to

1

The spellings “Muhdi” and “Mudhi” appear at various points in the parties’ briefs and the record

on appeal. We have used the spelling that was used by the medical personnel.

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drinking alcohol and smoking marijuana. Biundo asked that Muhdi be discharged, and she was.

Biundo researched drug treatment programs and found the Aspiro Wilderness (Aspiro)

treatment program in Utah. In July 2013, Muhdi was taken to a different hospital, Advocate

Good Samaritan Hospital, for symptoms of drug withdrawal. She again tested positive for

benzodiazepines, opioids, and cannabinoids. Biundo told this hospital that Muhdi’s

problematic behavior, failing grades, and social withdrawal had started seven or eight months

prior. This additional hospital also gave Biundo information about substance abuse programs.

About a week later, on July 22, 2013, Biundo sent her daughter to the Aspiro facility.

¶4 Muhdi’s Aspiro counselor, Tim Lowe, Ph.D., testified that upon her arrival, Muhdi was

diagnosed with polysubstance dependence, meaning that she had “a real dependence on more

than three controlled substances.” Muhdi disclosed “many years” of drug abuse and “many

more substances than just three,” including cocaine, heroin, Xanax, ecstasy, LSD, mushrooms,

marijuana, and alcohol. Lowe’s notes indicated that Muhdi had “not had much structure or

guidance in her life.” Lowe also wrote that Muhdi recognized it had been difficult for her

mother to send her away from home and that Muhdi “was grateful for the good choices [her]

mom made in putting her in *** [the Aspiro] program.” Biundo was surprised by the extent of

Muhdi’s drug use. Biundo received weekly updates from Lowe and was told that Muhdi was

making progress but needed supervision and that the Aspiro treatment program took 7 to 10

weeks. Lowe recommended that after Muhdi completed the Aspiro program, she spend the

next 12 months in a therapeutic boarding school. Before Muhdi could accomplish the Aspiro

milestones, however, Biundo flew to Utah and on August 23, 2013, took Muhdi out of the

program because Biundo missed her. Biundo had spoken with Lowe a few days earlier,

understood that her daughter was not ready to be discharged from Aspiro, and said she would

leave her daughter in the program. Lowe had advised Biundo that Muhdi’s removal would be

against medical advice. Lowe was not a medical doctor but had formed that opinion in

consultation with a psychiatrist, a nurse, and about a half dozen therapists. Lowe had also

advised Biundo that removing Muhdi from the Aspiro program prematurely made it likely that

she would relapse into previous behaviors and that it was likely that Muhdi would use drugs

and would overdose again. Lowe told Biundo that Muhdi required a higher level of treatment

and support for a minimum of one year after graduation from Aspiro and that without it she

would relapse. Lowe recommended that the 12 months of additional treatment include a

minimum of three hours of therapy per week, consisting of one hour of psychological therapy,

one hour of group therapy, and one hour of family therapy with Biundo and Muhdi together.

Biundo was also advised that Muhdi required structure at home, including rules, boundaries,

and accountability. On cross-examination, Lowe was asked about the costs of the Aspiro

program and a therapeutic boarding school. On redirect, Lowe said during his conversation

with Biundo about the risks and consequences of prematurely removing Muhdi from Aspiro,

Biundo had never mentioned costs and only said that she missed Muhdi too much to have her

away from home.

¶5 Biundo testified that Muhdi spent 32 or 34 days at Aspiro and that Biundo decided it was

time for her daughter to come back to Illinois because Muhdi “looked good” and “was happy”

and Biundo missed her. Lowe had said that Muhdi needed to be in a treatment program, so

Biundo’s plan was to enroll her daughter in Catholic high school for her senior year and sign

her up for outpatient therapy at Rosecrance, which was an “outpatient/inpatient drug

rehabilitation therapeutic center.”

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¶6 Muhdi’s uncle, Angelo, testified that while the family was visiting Muhdi at the Aspiro

program, they looked online for good schools; in Angelo’s own schooling, he experienced a

“big difference” between a public school and a Catholic school, and the family chose the

Catholic high school in Rockford, Illinois. Angelo also testified that he was not involved in his

sister’s decision to withdraw Muhdi from the substance abuse program and that he did not

know his niece had been withdrawn from Aspiro against medical advice.

¶7 Biundo testified that she decided against the therapeutic boarding school that Aspiro

recommended because a boarding school would not permit Biundo to have visitation without

an invitation. Biundo wanted to remove Muhdi from the environment in Burbank and was

interested in the Catholic school in Rockford because the guidance counselor “knew of her

difficulties” and “it seemed like they were more compassionate” and that “there would be more

structure.” Biundo thought that taking Muhdi to Rockford was “the best thing” that she could

do for her daughter. Biundo and Muhdi moved in September 2013 to an apartment that Biundo

chose across the street from the Catholic school so she could “better keep [an] eye on her

[daughter].” Despite their move to Rockford, Biundo took Muhdi to Burbank every weekend

when Biundo went to see family. Muhdi attended “one to three” sessions at Rosecrance, which

might have been “on an as-needed basis.” Biundo testified that it seemed her plan to help her

daughter was working, until after the holidays, when Muhdi began “distancing herself.”

¶8 Michaelina R. Bolton, M.D., testified that on January 18, 2014, at approximately 4 p.m.,

someone left Muhdi at the entrance of ACMC’s emergency department. Muhdi was

unresponsive and cyanotic but immediately attended to by Dr. Bolton and Trale Permar, M.D.,

who administered oxygen and Narcan, a heroin reversal agent. Dr. Bolton was board certified

in emergency medicine and treated at least one drug overdose each week, and she was

supervising Dr. Permar, who was a senior resident with similar experience treating overdoses.

It was Dr. Bolton’s opinion that Muhdi would have died without the medical intervention she

received. Muhdi said that she had snorted two baggies of heroin but denied that she tried to

harm herself. Someone who overdosed on heroin would typically be held for observation for

four to six hours and then reassessed. Dr. Bolton charted that she anticipated that Muhdi’s

observation period would be six hours, when she would likely be medically stable and able to

be discharged. By around 8:30 p.m., Muhdi had been weaned off the supplemental oxygen and

was medically stable.

¶9 Dr. Bolton’s testimony was corroborated by Dr. Permar. Dr. Permar had completed

medical school and was about halfway through a three-year residency in emergency medicine

at ACMC. Dr. Permar testified that in his experience, when someone is revived after

intentionally overdosing, the person will be either tearful and obviously depressed or the

person will have a “flat” affect, and that Muhdi, on the other hand, exhibited an “appropriate”

mood and affect. Muhdi’s demeanor was consistent with her denial that the overdose had been

intentional. Muhdi remained medically stable through the remainder of Dr. Permar’s shift.

Unless there is a medical reason, an overdose patient will not be admitted to the hospital, and

Muhdi remained medically stable. Dr. Permar made it a practice to provide a brief

“intervention” to overdose patients by talking with them about the seriousness of what had

occurred. When he talked with Muhdi about the dangers of her behavior, she “kind of

chuckled” and recalled telling her friends, “the next time I use I might die.” After Dr. Permar

confirmed that Muhdi’s overdose had been almost fatal, he again asked her whether she had

tried to hurt herself or wanted to die. Although Muhdi again denied that was her intention, she

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said she was depressed. Muhdi’s observation hold was extended, and Dr. Permar called in a

social worker for crisis consultation in order to connect Muhdi with drug treatment programs

or a psychiatric placement if necessary. As a medical resident, Dr. Permar did not have

authority to request the crisis consultation without discussing it with Dr. Bolton. He testified

that his care and treatment of Muhdi was appropriate, complied with the standard of care, and

did not proximately cause her death.

¶ 10 Dr. Bolton testified that she wrote a note in Muhdi’s chart at about 10:15 p.m. documenting

that Biundo had demanded that her daughter be admitted to the hospital or transferred for

detoxification, but that Muhdi did not meet medical or psychiatric criteria for admission to a

hospital, i.e., she was medically stable, did not require medication to manage severe

withdrawal symptoms, and was not suicidal, homicidal, or psychotic. Dr. Bolton testified that

although there is probably a medical or biological basis for addiction, addiction is not treated

as a medical condition in a hospital, and substance abuse treatment is a voluntary process that

requires the patient to be engaged in the treatment. Therefore, in order for Muhdi to progress

to substance abuse treatment, she would have to be discharged from the hospital. Dr. Bolton’s

10:15 p.m. addendum to Muhdi’s chart indicated that her recommendation to Biundo and

Muhdi was for them to follow up with drug addiction services. ACMC, through a social

worker, would provide information about resources and facilities in the area. Dr. Bolton

testified that her care and treatment of Muhdi was appropriate, complied with the standard of

care, and did not proximately cause Muhdi’s death.

¶ 11 ACMC’s emergency department used a “sign out” procedure in which an outgoing shift of

physicians would sit down with the incoming team to go over the charts and lab results of the

patients who were coming under the care of the incoming team. After the sign out procedure,

when their shift ended later that night, Drs. Bolton and Permar left the hospital after 11 p.m.

¶ 12 At approximately 1 a.m. on January 19, 2014, Muhdi was seen by a licensed clinical social

worker. The social worker had 18 years of experience at ACMC as a crisis intervention worker

and psychiatric liaison, was concurrently working for three other hospitals in that same

capacity, and was also the director of field education for the master of social work program at

a local university. The social worker had first reviewed all of Muhdi’s medical records at

ACMC. She then woke up Muhdi and spoke with her and her mother separately about Muhdi’s

history of drug use, denial of being suicidal, and past and current treatment. Muhdi told the

social worker that she had maintained sobriety for about a month after coming home from the

program in Utah; she subsequently used heroin, cocaine, alcohol, and “pills”; her past and

current “drug of choice” was heroin; she had not been suicidal; and she had accidentally

overdosed on heroin thinking it was cocaine. Muhdi also said that she was depressed and

anxious; that a physician prescribed an antidepressant which Muhdi stopped taking because it

made it her “sick”; and that she was self-medicating with marijuana to address her depression.

Muhdi said her counselor at Rosecrance thought Muhdi needed substance abuse inpatient

treatment, but Muhdi disagreed and said she could stop using heroin whenever she wanted to

stop. During this 1 a.m. meeting, the social worker observed that Muhdi was disheveled; had

a flat affect; and appeared depressed, anxious, and irritable. After evaluating Muhdi for

substance abuse issues and psychiatric issues, the social worker consulted with the hospital’s

director of psychiatry, Rian Rowles, D.O., and Muhdi’s attending emergency department

physician, Todd F. Hayward, D.O., and it was determined that Muhdi should be assessed by

CARES/Stability Assessment Stabilization Services (SASS) to determine whether she needed

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further mental health services or other services that SASS could provide. Because Muhdi said

she stopped receiving services from Rosecrance, the social worker also contacted Rosecrance

and was advised that Muhdi would need to be evaluated by SASS to determine her eligibility

for substance abuse services. Both SASS and Rosecrance are separate entities from ACMC.

While testifying, the social worker acknowledged her notation that Muhdi needed inpatient

substance abuse treatment, but the social worker explained that she had never known of a

patient being transferred from the emergency department to an inpatient substance abuse

facility and that the social worker gave Muhdi written referrals to substance abuse treatment

providers that could help her after she was discharged from ACMC. The social worker had

previously worked for SASS and explained that the notation SASS made in Muhdi’s record

stating that she was “deflected” from inpatient services meant that SASS determined Muhdi

did not require inpatient services to address the issues that she presented with.

¶ 13 At approximately 5:30 a.m. on January 19, 2014, Muhdi was evaluated by a licensed master

social worker employed by SASS who determined that Muhdi was not suicidal and did not

meet the criteria for psychiatric hospitalization. The social worker testified that substance

abuse treatment was voluntary and that a 17-year-old could not be involuntarily admitted for

substance abuse counseling. The plan was for Muhdi to follow up with Rosecrance for

outpatient services and follow up with SASS for assistance in connecting with services

available to her.

¶ 14 The next team of physicians to take over Muhdi’s care were Dr. Hiufang S. Lam and a

resident, Dr. Stephan Walchuk, whose shift started at 6 a.m. on January 19, 2014. In 2014, Dr.

Walchuk was in his third and final year of residency in ACMC’s emergency department. Dr.

Walchuk’s notes in Muhdi’s record from the “sign out” process indicated that the overnight

team of physicians told Dr. Walchuk that Muhdi was medically stable and was not suicidal or

homicidal and that the social worker indicated she did not need psychiatric hospitalization. Dr.

Walchuk testified that his note “dispo per SASS” meant that after Muhdi was discharged from

the emergency department, SASS would provide the next step or next disposition, whether that

was referring Muhdi to counseling or to an inpatient substance abuse rehabilitation facility. Dr.

Walchuk also said that his role as an emergency physician was to stabilize the patient medically

and then get psychiatric clearance and that it was not within the scope of emergency medicine

to arrange for substance abuse treatment.

¶ 15 Dr. Lam corroborated the testimony that the typical timeframe for observing an overdose

patient was four to six hours and that Muhdi’s records indicated that once she became

medically stable, she remained so. Dr. Lam’s examination of Muhdi at about 6 a.m. confirmed

that her status had not changed and that she was medically cleared for discharge. Dr. Lam was

aware that neither of the ACMC crisis evaluation nor the SASS evaluation indicated Muhdi

required psychiatric placement. Dr. Lam testified that he could not determine or prepare

Muhdi’s discharge plan until he was advised of the SASS employee’s conclusions and

recommendations. Dr. Lam noted in Muhdi’s record that she “declined detox,” by which he

meant that drug detox is a voluntary process and that she indicated to him she would not

voluntarily go into detox. Dr. Lam testified that he did not have the ability to commit a patient

to inpatient or outpatient drug treatment, even if that patient was a minor and a parent was

saying they wanted the child to go into a detox program. Dr. Lam’s note “discharge to home

with outpatient psychiatric referral” meant that Muhdi would be discharged home with both a

mental health and a substance abuse follow-up by SASS for outpatient care. Dr. Lam also

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testified about some of the nurses’ notes in Muhdi’s record that had been made throughout her

stay in the emergency department, such as the notes documenting that Muhdi had agreed to a

social services evaluation; Muhdi had at times yelled, “I’ve been here so long; I just want to

go home”; Muhdi pulled out her IV because she wanted to leave; her family was at the bedside;

and SASS had given Muhdi outpatient treatment phone numbers and other information. At

approximately 10 a.m. on January 19, 2014, Dr. Lam provided Muhdi and Biundo with

discharge instructions that included them following up with drug abuse counseling and

rehabilitation. Biundo executed and acknowledged her understanding of the discharge

instructions. Dr. Lam testified that all of his care and treatment of Muhdi complied with the

standard of care.

¶ 16 Biundo testified that when she arrived at the emergency room, she told the doctor and

resident that she “wanted her [daughter] in observation,” that she “thought observation was at

least 24 hours,” and that she later asked the ACMC social worker to transfer Muhdi to an

inpatient rehabilitation center. She also testified that the SASS social worker told her that

Muhdi “had to go to a mental ward.” Muhdi stayed in the emergency room until 10 a.m. the

next morning when Biundo signed Muhdi’s discharge forms because Biundo’s “eyes were,

like, tired” and she thought that Muhdi was being admitted to the hospital. As soon as Biundo

signed, Muhdi jumped up and left the room, and Biundo followed her out and did not object

because she was “disoriented and tired.” Biundo had been at the hospital the whole night and

“was just confused.” Upon leaving the hospital with her daughter, Biundo did not discuss or

raise the issue of her daughter’s drug use or near-fatal overdose, and Biundo had no plan for

her daughter’s next steps. Biundo drove her mother and daughter back to Burbank and then

went to sleep on her mother’s couch while her mother, brother, and daughter went to sleep in

the bedrooms. In the early afternoon, her brother woke her to tell that Muhdi “just snuck out,”

ran to the corner, and got into a car. After being told, Biundo, however, went back to sleep

with the expectation that Muhdi would keep in touch with her grandmother. When Biundo

woke up a few hours later, she took a shower and went to a sports bar with her boyfriend.

Around 7 p.m. or 8 p.m., Muhdi called or texted her mother to say that her cell phone battery

was dying and that she was out with a friend. Muhdi did not say where she was or who she

was with. Biundo did not leave the bar to pick up or look for Muhdi because Biundo “didn’t

know where she was at.” Instead, Biundo returned to her table to finish her food and drinks,

talk a bit, and watch a game. Biundo stayed at the sports bar until 11 p.m. or 11:30 p.m., and

while on the way home, she called her mother and learned that Muhdi was still out. Biundo

went to the Burbank Police Department to file a missing person report. Biundo told the police

officer that Muhdi had stayed out all night before and frequently came home late. Biundo went

back to her mother’s house to sleep until approximately 7 a.m., when she saw her brother and

mother going out to look for Muhdi, so Biundo picked up her boyfriend and also went out to

look for Muhdi. Biundo got a call from Muhdi’s half-brother who said that a deceased female

had been found in a Bridgeview, Illinois, motel room. The female was later identified as

Muhdi, and the cause of death was determined to be an overdose of heroin. The next day would

have been Muhdi’s eighteenth birthday.

¶ 17 After hearing from these and other witnesses, the jury returned a verdict against Biundo’s

claim, and on May 8, 2019, the trial judge entered judgment on the verdict in favor of Drs.

Bolton, Permar (the physicians who revived Muhdi), and Lam (the physician who discharged

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Muhdi), ACMC, and the other defendant, Advocate Health and Hospitals Corporation. On

August 29, 2019, the trial judge denied Biundo’s postjudgment motion.

¶ 18 The above summary is limited to the testimony and procedural facts necessary to

understand the case, and we will set out additional details when needed to address the appellate

arguments.

¶ 19 We first address Biundo’s argument regarding the defendants’ motion in limine No. 27

regarding the scope of testimony from Biundo’s emergency room expert, Eugene E. Saltzberg,

M.D. We reject the defendants’ contention that Biundo waived this first argument by failing

to make an offer of proof during the trial. Generally, when a trial court refuses evidence, the

ruling is not appealable unless a formal offer of proof has been made. Sullivan-Coughlin v.

Palos Country Club, Inc., 349 Ill. App. 3d 553, 561, 812 N.E.2d 496, 503-04 (2004). The

purpose of an offer of proof is to inform the trial court, opposing counsel, and a court of review

of the nature and substance of the evidence sought to be introduced. Volvo of America Corp.

v. Gibson, 83 Ill. App. 3d 487, 491, 404 N.E.2d 406, 409 (1980). Thus, a formal offer of proof

regarding the testimony of witness as to a certain matter is not required when it is apparent that

the trial court clearly understood the nature and character of the evidence sought to be

introduced. Volvo, 83 Ill. App. 3d at 491; Torres v. Midwest Development Co., 383 Ill. App.

3d 20, 26, 889 N.E.2d 654, 661 (2008). The record in this instance shows that the trial judge

was given Biundo’s written Rule 213(f)(3) disclosure of Dr. Saltzberg’s opinions and pertinent

deposition testimony and that the trial judge reserved ruling on motion in limine No. 27 in

order to familiarize himself with that material. See Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 1996)

(requiring a party to disclose the identity and other information regarding controlled expert

witnesses). The trial judge also heard extensive arguments about Dr. Saltzberg’s qualifications

and opinions and whether an emergency department doctor should be allowed to testify that

an in-person psychiatric evaluation was necessary. The report of proceedings indicates that the

attorneys’ arguments were detailed and that counsel specified what answers Dr. Saltzberg

would give if allowed to testify as Biundo intended. Thus, the trial court clearly understood

the nature and character of the proposed testimony and review of the issue has not been waived.

Torres, 383 Ill. App. 3d at 27.

¶ 20 A trial court’s ruling on a motion in limine addressing the admission of evidence will not

be disturbed on appeal absent a clear abuse of the court’s discretion. Jones v. Rallos, 384 Ill.

App. 3d 73, 89, 890 N.E.2d 1190, 1205 (2008). An abuse of discretion occurs when the trial

judge has acted arbitrarily or did not employ conscientious judgment, the ruling exceeded the

bounds of reason and ignored recognized principles of law, or no reasonable person would take

the same view. Payne v. Hall, 2013 IL App (1st) 113519, ¶ 12, 987 N.E.2d 447; Sbarboro v.

Vollala, 392 Ill. App. 3d 1040, 1055, 911 N.E.2d 553, 566 (2009).

¶ 21 In order to prove a prima facie case of medical malpractice, the plaintiff has the burden of

proof as to the proper standard of care against which the defendant professional’s conduct must

be measured. Saxton v. Toole, 240 Ill. App. 3d 204, 210, 608 N.E.2d 233, 238 (1992); Purtill

v. Hess, 111 Ill. 2d 229, 241-42, 489 N.E.2d 867, 872 (1986). The plaintiff also bears the

burden of proving an unskilled or negligent failure to comply with the appropriate standard of

care by the defendant professional and a resulting injury proximately caused by the defendant

professional’s failure of skill or care. Saxton, 240 Ill. App. 3d at 210; Purtill, 111 Ill. 2d at 241-

42. Because jurors are not skilled in the practice of medicine, expert medical testimony is

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required to establish all three elements. Saxton, 240 Ill. App. 3d at 210; Purtill, 111 Ill. 2d at

242.

¶ 22 In her Rule 213 disclosures, Biundo disclosed Dr. Saltzberg to offer the following opinion:

“Defendants deviated from the applicable standard of care by discharging Zenah Muhdi with

a recommendation for outpatient follow-up care and without first having Zenah Muhdi undergo

a psychiatric evaluation. Dr. Saltzberg will testify that it is his opinion that the standard of care

required Defendants to refrain from discharging Zenah Muhdi until such time as inpatient

psychiatric or substance abuse treatment could be procured.”

¶ 23 However, the medical records and deposition testimony indicated that ACMC’s director of

psychiatry, Dr. Rowles, had consulted on Muhdi’s case. That is, Dr. Bolton and Dr. Permar

requested that Muhdi undergo a crisis evaluation; the licensed clinical social worker reviewed

Muhdi’s ACMC medical history and met with Muhdi and her mother in order to evaluate

Muhdi; and the licensed clinical social worker then consulted by phone with ACMC’s director

of psychiatry, Dr. Rowles, and consulted in person with Muhdi’s attending emergency

medicine physician on the overnight shift, Dr. Hayward. The psychiatrist, Dr. Rowles, did not

request or order a face-to-face psychiatrist’s evaluation with Muhdi but rather decided that the

licensed clinical social worker should next have Muhdi assessed by SASS to determine what

services were available to Muhdi. The licensed clinical social worker also followed up on

Muhdi’s statement that she was no longer seeing her Rosecrance therapist, but Rosecrance also

told the social worker that Muhdi needed to be evaluated by SASS for purposes of determining

her eligibility for treatment. SASS was contacted and evaluated Muhdi in person. SASS’s

licensed master social worker confirmed that Muhdi did not meet the criteria for psychiatric

hospitalization and that Muhdi should continue outpatient treatment at Rosecrance with follow-

up services from SASS.

¶ 24 When Dr. Saltzberg was advised during his deposition that psychiatrist Dr. Rowles had, in

fact, consulted on Muhdi’s case, Dr. Saltzberg altered his opinion to be that the standard of

care required the psychiatrist to see Muhdi in person. He stated:

“I’m not going to accept a telephone conversation between *** a social worker and a

psychiatrist.

The standard of care is for the psychiatrist to see the patient. Either they come in

and see the patient and then they can make the decision to discharge the patient or we

transfer the patient to the psychiatric facility.

***

I’m saying she was psychiatrically unstable when she was discharged from [the

hospital]. And that she should have been seen by a psychiatrist before they could make

the decision to let her go. Not a conversation between a social worker and a psychiatrist.

An actual physical evaluation.”

¶ 25 In motion in limine No. 27, the defense asked to bar Dr. Saltzberg from opining that the

standard of care required the ACMC psychiatrist to personally see Muhdi. The defendants

argued that, as an emergency department physician, Dr. Saltzberg (1) lacked the expertise to

speak to whether the ACMC psychiatrist should have personally seen Muhdi and (2) any such

testimony or opinion from Dr. Saltzberg was not relevant as it lacked proximate cause.

¶ 26 Biundo contends the trial court barred the proposed testimony in the belief that Dr.

Saltzberg would opine as to the psychiatric standard of care for evaluating a patient. She

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contends Dr. Saltzberg intended to testify regarding the conduct of an emergency room

physician, not a psychiatrist. She cites the principle that a plaintiff’s medical expert need not

specialize in the same area of medicine as the defendant doctor in order for the expert to qualify

to speak to the appropriate standard of care. Gill v. Foster, 157 Ill. 2d 304, 316, 626 N.E.2d

190, 196 (1993). Expert testimony is admissible if the proffered expert is qualified as an expert

by knowledge, skill, experience, training, or education and the testimony will assist the trier of

fact in understanding the evidence. Reed v. Jackson Park Hospital Foundation, 325 Ill. App.

3d 835, 842, 758 N.E.2d 868, 874 (2001); see 735 ILCS 5/8-2501 (West 2014) (civil procedure

statute regarding expert witnesses). Illinois law provides that when determining if a witness

qualifies as an expert, the court shall apply standards, including, “[w]hether the witness has

devoted a substantial portion of his or her time to the practice of medicine, teaching or

University based research in relation to the medical care and type of treatment at issue which

gave rise to the medical problem of which the plaintiff complains.” 735 ILCS 5/8-2501(b)

(West 2014). The trial court is to consider the precise testimony that is proposed and determine

whether the witness qualifies as an expert in the kind of treatment criticized. Silverstein v.

Brander, 317 Ill. App. 3d 1000, 1007, 740 N.E.2d 357, 362 (2000).

¶ 27 The record indicates that Dr. Saltzberg practiced in a hospital emergency room setting

between 1980 and 2015, before he transitioned to practicing in urgent medical care, teaching

at a medical school, and also providing expert witness opinions in medical malpractice cases.

Dr. Saltzberg had no specialty within the addiction or substance abuse arena; had never

published or made any presentations on drug overdoses, drug addiction, or substance abuse;

and had no training in any type of psychiatry nor had his practice ever included counseling or

evaluating patients from a psychiatric or psychological standpoint. Dr. Saltzberg’s

undergraduate degree in 1971 was in psychology, he did a medical residency in pediatrics, and

he returned to school in 1979 to take a one-year intensive program in emergency medicine and

later became board certified in emergency medicine. His most recent emergency department

experience was as a staff physician between 2007 and 2015 at Lovell Federal Health Care

Center (Lovell), where he provided care to veteran and active duty personnel in the region,

including recruits participating in boot camp at Great Lakes Naval Base. Dr. Saltzberg testified

that while at the Lovell facility, he saw overdose patients every day.

¶ 28 During his deposition, Dr. Saltzberg admitted that psychiatric evaluations are beyond what

can be done by an emergency medicine physician, thus making clear that the standard of care

for a psychiatrist is wholly independent from that of an emergency medicine physician. The

defendants argued, in limine, that Biundo could not establish through Dr. Saltzberg that the

three defendant emergency medicine physicians had been negligent by not ensuring that the

psychiatrist personally conduct an evaluation. Biundo never named psychiatrist Dr. Rowles as

a defendant, never deposed Dr. Rowles, and never claimed institutional negligence.

Accordingly, Biundo had no basis, qualified testimony, or disclosed opinions to criticize the

nature of Dr. Rowles’s consultation of Muhdi.

¶ 29 Biundo’s reliance on Silverstein, 317 Ill. App. 3d 1000, is misplaced. The plaintiff in that

case suffered a new stomach ulcer while in a rehabilitation facility following hip replacement

surgery, allegedly because he was continued on Indocin, despite a history of peptic ulcers and

complaining that he was experiencing nausea. Silverstein, 317 Ill. App. 3d at 1002.

Approximately a week after the hip replacement surgery, he had to undergo surgery to remedy

the new ulcer. Silverstein, 317 Ill. App. 3d at 1002. The trial court ruled that the plaintiff’s

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medical expert, an internist, was unqualified to testify that the defendant, a physiatrist, had

violated the standard of care in medically managing the plaintiff during his rehabilitation.

Silverstein, 317 Ill. App. 3d at 1002. The appellate court reversed the trial court’s ruling, first

observing that the internist had criticized the physiatrist’s medical management rather than the

physiatrist’s physical therapy. Silverstein, 317 Ill. App. 3d at 1007. The internist testified that

he had worked on the medical management of more than 100 patients while they underwent

physical rehabilitation following hip replacement surgery. Silverstein, 317 Ill. App. 3d at 1007.

Silverstein is not on point. The plaintiff’s expert in Silverstein provided an adequate foundation

establishing the reliability of the information on which his opinions were based, specifically

that he had medically managed more than 100 patients while they underwent rehabilitation

following hip-replacement surgery. Silverstein, 317 Ill. App. 3d at 1007. Dr. Saltzberg did not

testify that his training, background, education, or experience qualified him to testify to a

psychiatrist’s standard of care. Dr. Saltzberg was not qualified to establish the requirements

for a psychiatrist and thus could not impugn any alleged failure by the psychiatrist on the

defendants.

¶ 30 Even assuming arguendo that Dr. Saltzberg was qualified, his opinion lacked proximate

cause and, therefore, was properly barred. During his discovery deposition, Dr. Saltzberg

conceded that he could only speculate what a psychiatrist would have diagnosed or

recommended for Muhdi had an in-person psychiatric evaluation been conducted. Biundo did

not retain a psychiatrist to testify that an in-person evaluation of Muhdi would have resulted in

Muhdi being admitted to a psychiatric facility or would have otherwise altered the course of

events. In addition, Biundo’s attorney acknowledged that Dr. Saltzberg would not offer any

proximate cause testimony regarding an in-person psychiatric examination. Testimony

grounded in guess, surmise, or conjecture is not regarded as proof of a fact and is irrelevant as

it has no tendency to make the existence of a fact more or less probable. An expert opinion

based upon the witness’s guess, speculation, or conjecture as to what he or she believed might

have happened is inadmissible. Dyback v. Weber, 114 Ill. 2d 232, 244-45, 500 N.E.2d 8, 13

(1986). “The proximate cause element of a medical malpractice case must be established by

expert testimony to a reasonable degree of medical certainty.” Krivanec v. Abramowitz, 366

Ill. App. 3d 350, 356-57, 851 N.E.2d 849, 854 (2006); Freeman v. Crays, 2018 IL App (2d)

170169, ¶¶ 20-36, 98 N.E.3d 571. Although Dr. Saltzberg testified that he had experience

calling for psychiatric consults in an emergency department, the trial court properly determined

that he was not qualified to offer an opinion regarding a psychiatrist’s standard of care. It was

not enough for Dr. Saltzberg to state that if the defendants had ensured that the psychiatrist,

Dr. Rowles, complied with Dr. Saltzberg’s claimed standard of care and conducted an in-

person examination of Muhdi, that Dr. Rowles could have come to a diagnosis or

recommendation that could have changed the outcome. Where Dr. Saltzberg could not testify

to a reasonable degree of medical certainty as to what Dr. Rowles would have determined or

recommended for Muhdi, he lacked the necessary foundation to offer an opinion that the

defendants’ alleged negligence of not ensuring that an in-person examination was conducted

was the proximate cause of Muhdi’s death.

¶ 31 Because Dr. Saltzberg was unqualified to speak to the standard of care for a psychiatrist

and unable to address the element of proximate cause, the trial court did not abuse its discretion

in granting motion in limine No. 27 to bar Dr. Saltzberg from opining that the standard of care

required the ACMC psychiatrist to personally see Muhdi.

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¶ 32 Biundo next argues that the trial court should not have granted the defendants’ motion

in limine No. 37 to bar Biundo from eliciting testimony that Muhdi was not medically cleared

for discharge. Biundo contends the trial court misconstrued her expert’s deposition testimony

to equate “medically clear” with “medically stable” and that this unfairly prevented Biundo

from eliciting testimony that Muhdi was not medically clear.

¶ 33 She also contends that a lack of medical stability was an “alternative theory of the case”

that she also should have been permitted to explore during the trial in order to discredit the

three physician defendants and two defense medical experts, who all testified that Muhdi was

medically cleared.

¶ 34 For the reasons discussed above regarding motion in limine No. 27, we reject the

defendants’ contention that Biundo’s failure to make an offer of proof has resulted in waiver

of her argument regarding motion in limine No. 37. See Torres, 383 Ill. App. 3d at 27.

Nevertheless, we do not find Biundo’s argument regarding motion in limine No. 37 to be

persuasive.

¶ 35 Biundo alleged in her complaint that Drs. Bolton, Permar, and Lam were negligent by

“determining that the decedent was medically cleared and could be discharged from physician

care.” However, her Rule 213(f)(3) disclosures did not include any opinion that the defendants

were negligent in determining that Muhdi was medically cleared for discharge. Then, at the

pretrial hearing, when it was time to address motion in limine No. 37, the defendants read aloud

a portion of Dr. Saltzberg’s discovery deposition:

“Q. Would you agree with me that when the decedent was discharged, she had been

medically cleared?

A. Yes.

Q. Okay.

A. In their opinion she was medically cleared.

Q. Do you disagree from a medical standpoint that she should not have been

medically cleared?

A. Well, I’m not sure about that. There were some documentation of her—of her

presentation that was documented that she was disheveled, that she had a distorted

thought process. There were signs that she wasn’t really medically cleared.

Q. Doctor, what’s your definition of medically cleared?

A. Definition of medically cleared means the patient is in a stable condition in order

to continue functioning. Now where I question that is when she was evaluated by the

[licensed clinical social worker], she described her as disheveled, depressed, irritable.

Having slurred speech, distorted thought process. So if that was the case at the time she

was discharged, she wasn’t really medically cleared.” (Emphases added.)

¶ 36 The defendants pointed out that the timeframe that Dr. Saltzberg spoke of when Muhdi was

evaluated by the ACMC crisis worker was 1 a.m., which was nine hours prior to Muhdi’s

discharge at 10 a.m. The defendants argued that any opinion by Dr. Saltzberg that Muhdi did

not meet the criteria for medical clearance at the time of her discharge should be barred because

it was not a disclosed opinion pursuant to Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1,

1996). Rule 213(f)(3) requires that upon written interrogatory, for each “controlled expert

witness,” a party must identify “(i) the subject matter on which the witness will testify; (ii) the

conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the

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witness; and (iv) any reports prepared by the witness about the case.” Ill. S. Ct. R. 213(f)(3)

(eff. Jan. 1, 1996).

¶ 37 The in limine argument was based on the principles that “Rule 213 is mandatory and strict

compliance is required.” Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 938, 738

N.E.2d 199, 205 (2000). “Rule 213 is designed to give those involved in the trial process a

degree of certainty and predictability that furthers the administration of justice and eliminates

trial by ‘ambush.’ ” Copeland, 316 Ill. App. 3d at 946 (quoting Firstar Bank of Illinois v.

Peirce, 306 Ill. App. 3d 525, 535, 714 N.E.2d 116, 122 (1999)).

¶ 38 Our review of Biundo’s Rule 213 response to the defendants indicates that she did not

disclose the proposed opinion. In addition, Dr. Saltzberg’s deposition statement, “I’m not sure

about that,” is an equivocal statement as to whether he held the opinion that Muhdi was not

medically cleared when she was discharged. Dr. Saltzberg also expressed uncertainty about

Muhdi’s presentation when she was discharged when he framed his statement about her

medical clearance with the conditional statements “Now where I question that is” and “So if

that was the case at the time she was discharged.” The transcript of the pretrial hearing indicates

that the trial court accurately remarked that Dr. Saltzberg did not appear to know the facts of

Muhdi’s presentation at 10 a.m. when she was discharged and thus the expert could not have

formed an opinion that Muhdi “wasn’t really medically cleared” at 10 a.m.

¶ 39 During the pretrial hearing, the trial court also properly refuted counsel’s attempt to

distinguish Dr. Saltzberg’s use of the term “clearance” from his use of the term “stability.”

Although Biundo’s attorney suggested these were two different states, when Dr. Saltzberg

testified at trial, he admitted that Muhdi was medically cleared and he used the two terms at

issue interchangeably:

“Q. In your opinion what goes into determining medical clearance?

A. Purely medical clearance is evaluation of the vital signs and the stability of those

vital signs over a period of time. To a patient like this patient a period of six to eight

hours would be medical stability.

Q. And so based upon your criteria what you’ve just described, this patient was

medically clear to be discharged?

A. She was medically stable at the time of her discharge, yes.” (Emphases added.)

¶ 40 For these reasons, we are not persuaded that Biundo’s case was unfairly prejudiced when

the trial court barred Dr. Saltzberg from testifying that Muhdi was not medically cleared for

discharge. Also, Biundo’s contention that she was unfairly prevented from exploring a lack of

medical stability as an “alternative theory of the case” that was distinct from her allegation of

a lack of medical clearance is belied by her own expert’s interchangeable use of the terms

“stability” and “clearance.” It was not an abuse of discretion to grant the defendants’ motion

in limine No. 37.

¶ 41 Biundo’s last arguments are overlapping. She asks us to reverse the judgment or grant a

new trial because the jury’s verdict was contrary to the manifest weight of the evidence. She

also contends the trial court should have granted her motion for a JNOV because the evidence

so favored Biundo that no contrary verdict could stand or the trial court should have granted

her motion for a new trial because the jury’s verdict was contrary to the manifest weight of the

evidence.

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¶ 42 With regard to the first argument, “It 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, 787 N.E.2d 796, 815 (2003). Reversal is

permissible only when the verdict is contrary to the manifest weight of the evidence adduced.

Snelson, 204 Ill. 2d at 35. “A verdict is against the manifest weight of the evidence where the

opposite conclusion is clearly evident or where the findings of the jury are unreasonable,

arbitrary, and not based upon any of the evidence.” Snelson, 204 Ill. 2d at 35.

¶ 43 Biundo contends the combination of the defendant doctors’ awareness of Muhdi’s

substance abuse and her “premonition of death” when she told Dr. Permar she had told her

friends “the next time I use I might die” is overwhelming evidence that the physicians deviated

from the standard of care for emergency department physicians. She contends the standard of

care required that Muhdi be admitted to the hospital until she could be transferred to an

inpatient facility rather than being discharged into the same environment that resulted in her

overdose.

¶ 44 Biundo, however, relies almost solely on the testimony of her own expert, Dr. Saltzberg,

to establish the standard of care. During the trial, Dr. Saltzberg testified that the standard of

care for an emergency room physician in treating a heroin overdose required that the patient

be admitted to the hospital until inpatient substance abuse treatment could be procured. A

minor patient in particular would need to be assessed by social services and then be admitted

to the hospital. Muhdi’s “premonition of death” required more aggressive treatment. The

hospital did not have inpatient substance abuse treatment on its premises, and the standard of

care did not require it to offer that service. However, under these circumstances, the standard

of care required Muhdi to be admitted to the hospital until inpatient substance abuse treatment

could be arranged. Dr. Saltzberg further opined that the care Muhdi received deviated from

this standard of care and put her back into the same environment in which she had overdosed

on heroin. Dr. Saltzberg did not agree with the treatment plan devised by Drs. Bolton and

Permar of medically clearing Muhdi and having the ACMC crisis worker and SASS social

worker evaluate her psychiatric state. This created an expectancy of Muhdi’s discharge, which

allowed her to “slip through the cracks” between the changing shifts of the emergency room

physicians. In Dr. Saltzberg’s opinion, Muhdi should have been evaluated by social services

and then been admitted to the hospital. With regard to Dr. Lam, Dr. Saltzberg testified that he

breached the standard of care when he ultimately discharged Muhdi into the same environment

she had come from.

¶ 45 Absent from Biundo’s argument regarding the jury’s verdict is any analysis of the

testimony of the three defendant physicians, each of whom was questioned about the standard

of care and whether they breached that standard. Biundo also fails to address the impact of the

testimony of two defense experts not summarized above.

¶ 46 One of those defense experts was Andrea Grubb Barthwell, M.D., who specializes in the

treatment of opioid use disorders. Dr. Barthwell is a board-certified addiction medicine

specialist, who had extensive experience treating opioid dependence, including working as the

medical director for the largest treatment system for adolescents in the country, their

methadone maintenance treatment programs, and their residential programs with therapeutic

communities. She went on to found an intensive addiction treatment program in the Outer

Banks of North Carolina. Dr. Barthwell has advised two presidential administrations about

substance abuse prevention, intervention, and treatment; was a board member of a national

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association for the treatment of opioid disorders; publishes extensively; lectures to other

physicians frequently on addiction medicine; and is a consultant for emergency room

physicians. In addition, Dr. Barthwell maintains a private addiction treatment practice in Oak

Park, Illinois.

¶ 47 Dr. Barthwell indicated that with substance abuse disorder, the emergency department will

assess and stabilize an acute condition and then return the patient to the community for

treatment of the underlying chronic disorder. Dr. Barthwell testified that from her perspective

as an addiction specialist, an “18-hour stretch was an unusual[ly] long period to be maintained

in the emergency room following [the] reversal [of an overdose].” Also, never in her

experience had someone been “held in the emergency room and transferred directly into [her]

inpatient program [in North Carolina].” Patients are “either admitted to the hospital because

they require more medical stabilization or they [are] discharged to the care of their loved ones

and their loved ones have [them] transferred [to intensive substance abuse treatment].”

¶ 48 Dr. Barthwell disagreed with Dr. Saltzberg’s testimony that inpatient psychiatric care and

inpatient drug treatment are the same thing and said those two systems take a diametrically

different approach to treatment. When individuals with a substance abuse disorder are

misplaced into a psychiatric environment, many of them will experience an exacerbation of

their symptoms. Florida is the only state that provides for the involuntary commitment of

someone into substance abuse treatment.

¶ 49 The defendants’ other expert witness was Dr. Mark E. Cichon, chair of the department of

emergency medicine at Loyola University Medical Center, who disagreed with Dr. Saltzberg’s

opinion that Muhdi “fell through the cracks” after Drs. Bolton and Permar reversed the

overdose. Dr. Cichon further testified, “In the hospital setting, she was well cared for, and it’s

my opinion they more than met the standard of care.” He also disagreed with Dr. Saltzberg’s

opinion that Muhdi should have been held in the emergency department indefinitely until

inpatient substance abuse treatment could be arranged or she was transferred to an inpatient

drug treatment program. Dr. Cichon corroborated the testimony that there had to be a medical

or psychiatric reason to hold someone. He spoke to the issue of Muhdi’s “risk of harm to

herself” and explained that although individuals engage in various dangerous behaviors, that

conduct does not render them subject to a psychiatric admission. Dr. Cichon specifically

disagreed with Dr. Saltzberg’s testimony that Muhdi’s death was foreseeable and testified that

the treating physicians had no indication or reason to believe that Muhdi would “run off” while

in her mother’s care nor would they have any reason to believe that the mother would not

supervise her daughter once she was discharged into her care. Dr. Cichon also told the jury that

nothing the doctors did or failed to do caused Muhdi’s death. Rather, Muhdi’s death was caused

by her use of heroin and an overdose of heroin.

¶ 50 Biundo’s argument that the doctors’ knowledge of Muhdi’s history with drugs and drug

rehab placed them on “notice” that she required “more significant intervention” is not

supported by the record. No evidence or testimony even suggests that any of the doctors were

told or had knowledge that the report of “failed rehab” was actually Biundo’s removal of

Muhdi from the Aspiro program against medical advice. Similarly, no testimony or evidence

exists indicating that any of the doctors were told that Biundo, despite being told that her

daughter required ongoing weekly therapy upon her premature departure from Aspiro, failed

to ensure that her daughter received the therapy necessary to support her sobriety. None of the

doctors knew that Biundo had regularly returned Muhdi to the same environment in Burbank

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with the same friends and influences that Biundo knew to be dangerous for her daughter. The

doctors also had no reason to know that Biundo would fail to supervise and monitor Muhdi

upon discharge from the emergency department. The jury was able to consider Biundo’s role

in the overdose and that Dr. Saltzberg’s criticism that Muhdi had been discharged “into the

exact same environment” was actually a criticism that Muhdi had been discharged “back to the

care of her mother.”

¶ 51 Dr. Saltzberg’s testimony that Muhdi made a “premonition of death” was addressed by Dr.

Barthwell, who disagreed with the opinion and indicated Muhdi’s statement was actually a

positive sign that she was beginning to recognize that her drug use was risky. This recognition

occurred after Muhdi spent time in the Aspiro program. Muhdi made the statement and also

denied that she was trying to harm herself. The Aspiro records showed that Muhdi had attended

therapy with Lowe and other therapists, and Dr. Barthwell opined from those records that

Muhdi made “[t]remendous progress” in the program. Dr. Barthwell testified, “the whole point

of substance use treatment is to allow the patient to develop an insight recognizing that a

problem exists and then pairing that insight with the motivation to take an action to a resolve

that problem.”

¶ 52 Biundo’s argument based almost entirely on Dr. Saltzberg’s testimony regarding the

standard of care does not persuasively show that the jury’s verdict was contrary to the manifest

weight of the evidence.

“Neither the trial judge nor the reviewing court should sit as a second jury to consider

the nuances of the evidence or the demeanor and credibility of the witnesses. Rather

their function is to act as a check upon possible excesses of the jury to correct

substantial injustices which might result.” Stringer v. McHugh, 31 Ill. App. 3d 720,

723, 334 N.E.2d 311, 313 (1975).

“It is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility

of the witnesses, and to decide the weight to be given to the witnesses’ testimony.” Larkin v.

George, 2016 IL App (1st) 152209, ¶ 19, 65 N.E.3d 1002. Here, each side presented evidence

which, if believed by the jury, would support a verdict in its favor. We cannot say that the

jury’s apparent conclusion regarding the standard of care is “unreasonable, arbitrary, and not

based upon any of the evidence,” nor can we find that “the opposite conclusion is clearly

evident” Snelson, 204 Ill. 2d at 35. In light of the record regarding the standard of care, we

need not address Biundo’s contention that deviation from a standard of care was the proximate

cause of Muhdi’s death. The record clearly supports the jury verdict in favor of the defendants.

¶ 53 Accordingly, we reject Biundo’s contention that we should either reverse the verdict or

order a new trial.

¶ 54 Biundo’s last two arguments concern her posttrial motion in which she sought a JNOV or

alternatively a new trial.

¶ 55 “An appellate court reviews de novo a trial court’s decision to grant or deny a motion for

[JNOV] but, like the trial court, must be careful not to ‘ “usurp the function of the jury and

substitute its judgment on questions of fact fairly submitted, tried, and determined from the

evidence which did not greatly preponderate either way.” ’ ” Jones v. Chicago Osteopathic

Hospital, 316 Ill. App. 3d 1121, 1125, 738 N.E.2d 542, 547 (2000) (quoting McClure v. Owens

Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242 (1999), quoting Maple v.

Gustafson, 151 Ill. 2d 445, 452-53, 603 N.E.2d 508 (1992)).

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¶ 56 The JNOV standard is even more challenging than the manifest-weight-of-the-evidence

standard, which we have already determined Biundo did not meet.

“A [JNOV] is properly entered in those limited cases where ‘all of the evidence, when

viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant

that no contrary verdict based on that evidence could ever stand.’ [Pedrick v. Peoria &

Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 514 (1967).] In ruling on a

motion for a [JNOV], a court does not weigh the evidence, nor is it concerned with the

credibility of the witnesses; rather it may only consider the evidence, and any

inferences therefrom, in the light most favorable to the party resisting the motion.

[Citations.] Most importantly, a [JNOV] may not be granted merely because a verdict

is against the manifest weight of the evidence. [Citation.]” Maple, 151 Ill. 2d at 453.

¶ 57 The standard for obtaining a JNOV is “ ‘a very difficult’ ” one to meet, limiting the trial

court to “ ‘extreme situations only.’ ” Jones, 316 Ill. App. 3d at 1125.

¶ 58 No trial court or reviewing court may enter a JNOV “if there is any evidence, together with

reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or

where the assessment of credibility of the witnesses or the determination regarding conflicting

evidence is decisive to the outcome.” Maple, 151 Ill. 2d at 454. A JNOV is inappropriate if

“reasonable minds might differ as to inferences or conclusions to be drawn from the facts

presented.” Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351, 654 N.E.2d 1365,

1374 (1995). This is what occurred in the present case. There was conflicting expert testimony

about the standard of care and proximate cause, and reasonable minds could differ as to the

conclusions to be drawn from that evidence. We cannot say that the evidence overwhelmingly

favored Biundo’s claim. Accordingly, we conclude that the trial court did not err in denying

Biundo’s posttrial motion for a JNOV.

¶ 59 In her posttrial motion, Biundo argued in the alternative that a new trial was warranted

because the verdict was contrary to the manifest weight of the evidence. Whether to grant a

new trial based on a determination that the jury’s verdict was against manifest weight of

evidence is a matter addressed to the sound discretion of the trial court, and the court’s ruling

on a motion for a new trial will not be reversed unless it is affirmatively shown that the trial

court clearly abused its discretion. Maple, 151 Ill. 2d at 455. Here, Biundo reiterates her

argument that “the standard of care established by Dr. Saltzberg required that [Muhdi] be

admitted to the hospital in a medically controlled environment until an inpatient substance

abuse treatment could be procured. This was particularly necessary based on [Muhdi’s]

premonition of death.” She argues, “There is no evidentiary basis on which the jury made their

verdict.” Towards the end of her brief, Biundo contends, “Even if this Court finds that the

higher burden is not met as a result of the trial court erroneous denial of the motion for [JNOV],

Biundo’s posttrial motion for a new trial on all issues or on the issue of damages should have

been granted.” (Emphasis added.) Biundo, however, has not made an argument that is

specifically about damages. To the contrary, her brief suggests that damages went uncontested

and need not be addressed on appeal. That is, she argues: “Biundo established that she suffered

harm from the Defendants’ negligence through her loss of companionship with her daughter

and the expenses related to [the] funeral and burial. [Citation.] Defendants presented no

evidence at trial that negated this element. The only issues in this case are whether Dr. Bolton,

Dr. Permar, Dr. Lam, and Christ Hospital deviated from their standard of care and whether

the death of Zenah was the proximate cause of the Defendants’ deviation from that standard

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of care.” (Emphases added.) Accordingly, we decline to analyze the element of damages as a

distinct issue. We are not persuaded by Biundo’s argument focusing on Dr. Saltzberg that the

jury disregarded the manifest weight of the trial evidence. We find, therefore, that the trial

court did not abuse its discretion in denying Biundo’s postjudgment motion for a new trial.

¶ 60 In summary, Biundo has challenged two of the trial court’s evidentiary rulings, sought our

grant of a reversal or new trial, and argued that the trial court erred or abused its discretion by

denying Biundo’s posttrial motion for a JNOV or new trial. However, having considered the

record, the appellate briefs, and the relevant law, we have rejected all of her arguments.

Accordingly, we affirm the trial court’s judgment.

¶ 61 Affirmed.

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