                                2019 IL App (3d) 140543
                  Nos. 3-14-0690, 3-14-0795, & 3-16-0133 (Consolidated)

                           Opinion filed August 27, 2019
_____________________________________________________________________________

                                        IN THE

                          APPELLATE COURT OF ILLINOIS

                                   THIRD DISTRICT

                                          2019

ANGELA L. McINTYRE, Independent             ) Appeal from the Circuit Court
Administrator of the Estate of DONALD       ) of the 10th Judicial Circuit,
R. McINTYRE, JR., Deceased,                 ) Peoria County, Illinois,
                                            )
       Plaintiff-Appellant and              )
       Cross Appellee,                      )
                                            )
       v.                                   )
                                            )
RAJESH BALAGANI, D.O.; ILLINOIS LUNG )
INSTITUTE, LTD., an Illinois Corporation,   )
OSF HEALTHCARE SYSTEM, a not-for-profit )
corporation,                                ) Appeal Nos. 3-14-0543
                                            )               3-14-0690
       Defendants-Appellees and             )               3-14-0795
       Cross Appellants,                    )               3-16-0133
                                            )
       and                                  )  Circuit No. 10-L-87
                                            )
SACHDEV P. THOMAS, M.D., and                )
ONCOLOGY-HEMATOLOGY                         )
ASSOCIATES OF CENTRAL ILLINOIS, P.C. )
                                            )
       Defendants-Appellees                 )
                                            )
(Ryschell R. Bolton, D.O.; Peoria Pulmonary )
Associates, Ltd., an Illinois Corporation,  ) Honorable
                                            ) Scott A. Shore,
       Defendants).                         ) Judge, Presiding.
_____________________________________________________________________________

      JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Justices Carter and Lytton concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          The plaintiff, Angela L. McIntyre (Angela), as independent administrator of the estate of

     her deceased husband, Donald R. McIntyre (Donald), brought a medical malpractice action

     against several physicians, their respective employers, and the hospital where Donald was treated

     and died. Angela sought damages allegedly resulting from the negligent treatment that Donald

     received on September 7 and 8, 2009, while he was a patient in the medical intensive care unit

     (MICU) at OSF St. Francis Medical Center.

¶2          Angela brought the following claims: (1) a negligence claim against Dr. Rajesh Balagani

     and his employers, Illinois Lung Institute, Ltd. and Peoria Pulmonary Associates, Ltd.

     (collectively, the Balagani defendants); (2) a claim against OSF Healthcare System (OSF),

     alleging that OSF was derivatively liable for Dr. Balagani’s negligence because Dr. Balagani

     was OSF’s apparent agent; (3) a negligence claim against Dr. Ryschell R. Bolton, a third-year

     medical resident and her employer, OSF; (4) a claim against OSF for institutional negligence

     relating to the conduct of two OSF respiratory therapists who intubated Donald prior to his

     death; and (5) a negligence claim against Dr. Sachdev P. Thomas, the on-call hematologist who

     consulted with Drs. Balagani and Bolton regarding Donald’s treatment, and Dr. Thomas’s

     employers, Oncology-Hematology Associates of Central Illinois, P.C., Peoria Cancer Center,

     P.C., Illinois Cancer Care Center, P.C., and Peoria Cancer Care Center, P.C. (collectively, the

     Thomas defendants).

¶3          The Thomas defendants filed a motion for summary judgment, alleging that Dr. Thomas

     did not owe Donald a duty of care as an on-call physician. The trial court granted the motion and

     the matter proceeded to a jury trial with the remaining defendants. The jury returned a verdict in

                                                     2
     favor of Angela and against the Balagani defendants and awarded Angela damages of $1.1

     million for loss of income, goods, and services and $500,000 for loss of companionship and

     society. However, the jury returned a verdict in favor of Dr. Bolton and OSF as to institutional

     negligence. Angela and the Balagani defendants filed posttrial motions, which the court denied.

     These appeals followed.

¶4                                                 FACTS

¶5          Donald first presented to the emergency room (ER) at OSF on September 6, 2009, after

     fainting at a CVS pharmacy. He complained of a headache, facial pain, and neck stiffness. His

     hemoglobin was tested at 11.1 g/dL, which is considered mild anemia (the normal range is 13 to

     16 g/dL). He was given a complete workup, which revealed no cause of his condition. He was

     given antibiotics for a presumed case of sinusitis and released.

¶6          The following day, Angela took Donald back to the hospital because he looked yellow.

     He arrived at approximately 11 a.m. complaining of low back pain, headache, fatigue, chills,

     shortness of breath, and blood in his urine. He fainted about an hour after arrival, and later, his

     heart stopped beating for 12 to 16 seconds. A cardiac workup suggested that Donald might have

     had a heart attack from an occluded artery or inflammation of his heart or surrounding heart

     tissue lining. His liver enzymes were very elevated, which suggested possible hepatitis. Doctors

     detected bilirubin, which can be caused either by fractured blood cells or by a blockage in the

     liver or gallbladder. Donald’s white blood cell count was elevated and he showed signs of

     possible infection, such as flu-like symptoms, a fever of 102.4 degrees Fahrenheit, headache,

     muscle aches, and sinus symptoms. He was tachycardic and sweating. His hemoglobin was

     found to be 7.0 g/dL, down from 11.1 g/dL the previous day, which is considered anemic. His




                                                      3
     hematuria (blood in the urine) was rated at “4 plus,” which is the highest amount of blood or

     hemoglobin one can have in one’s urine.

¶7          Dr. Rose Haisler, the attending emergency department physician that day, testified that,

     after she reviewed Donald’s blood tests results in the ER, she was aware that Donald had

     “hemolytic anemia” (HA). HA is a rare disorder that causes the patient’s own immune system to

     attack and eventually destroy healthy red blood cells. Red blood cells can be described as “bags”

     of hemoglobin, the substance responsible for transmitting oxygen from the blood to the body’s

     tissues during circulation. When a patient has HA, antibodies that normally attack viruses and

     other infectious agents bind to the patient’s own red blood cells. Each time blood passes through

     the spleen, white blood cells tear the antibodies away from the red blood cells, stripping off small

     pieces of the red blood cells in the process. As a result, the red blood cells become smaller and

     smaller until they die in the spleen. If untreated, this continuous destruction of red blood cells

     results in death due to insufficient oxygen in the body.

¶8          In addition to HA, Donald also had elevated levels of methemoglobin. Methemoglobin

     decreases the amount of oxygen that hemoglobin is able to pick up as the blood goes through the

     lungs and also interferes with or inhibits the release of oxygen from hemoglobin into the body’s

     tissues. This condition increased the likelihood that Donald could die from HA. Treatment of

     HA requires the transfusion of healthy red blood cells, which maintains the blood’s oxygen

     carrying capacity, coupled with the administration of steroids and immunoglobulin by

     intravenous delivery (IVIG), which suppresses the chemical signaling error that causes the

     body’s immune system to attack its own red blood cells.

¶9          Dr. Haisler admitted Donald to the MICU at OSF because she suspected he had HA and

     he had “deteriorated so quickly.” Dr. Haisler described HA as “incredibly rare.” This was the


                                                      4
       first suspected case of HA she had seen outside a textbook. When asked if it would be

       appropriate to provide blood to assist the patient in maintaining enough red blood cells to

       provide oxygen for the body, Dr. Haisler responded, “no.” She explained that giving blood to

       treat HA, unlike giving blood to treat blood loss occurring from an open wound, is “very

       complex,” and is not something she would do without consulting a hematologist. She testified

       that HA is not treated in an emergency department. Nevertheless, Dr. Haisler ordered: (1) a

       “Coombs test” to be performed (the only way to confirm that a patient is suffering from HA), (2)

       Donald’s blood to be crossmatched, and (3) four units of un-crossmatched blood (O negative

       blood which can be given to anyone regardless of their blood type) to be prepared by the blood

       bank.

¶ 10           Dr. Bolton, an emergency medicine resident physician working under the attending

       physician, Dr. Balagani, treated Donald while he was in the MICU. According to Dr. Bolton’s

       entries into the medical record, Donald was admitted to the MICU with a diagnosis of

       “autoimmune [HA] with an uncertain etiology.” Donald’s blood was tested again at 4:23 p.m.

       The test showed that Donald’s hemoglobin had decreased another gram to 6 g/dL. Dr. Bolton

       testified that she was notified of this blood test result at 4:45 p.m. and that she ordered that blood

       be given to Donald because a hemoglobin of less than 7 g/dL “requires blood.” Dr. Bolton stated

       that she ordered the un-crossmatched, O-negative blood to be transfused because it was “urgent”

       in order to maintain Donald’s red blood cell levels. Two of the four units of un-crossmatched,

       O-negative blood ordered by Dr. Haisler were provided to Donald at Dr. Bolton’s direction at

       5:16 p.m. and 5:34 p.m. Around this time, Dr. Bolton performed a lumbar puncture to test for

       meningitis. Afterwards, she and Dr. Balagani examined Donald and spent approximately an hour

       discussing his symptoms and treatment plan. While awaiting the results of the lumbar puncture,


                                                         5
       they transferred Donald to an isolation room because they were concerned that he might have an

       infection that might be contagious.

¶ 11          At 9:40 p.m., Donald was stable, meaning that his vital signs were not changing. Dr.

       Bolton told Donald’s family members that Donald had HA and was very sick, and that specialists

       would be coming to see him. Donald’s hemoglobin was tested again at 9:57 p.m. and it measured

       6.3 g/dL. Dr. Bolton was notified of the new test results at 10:40 p.m. She later testified that she

       considered the 6.3 g/dL value to be “equivocal,” given lab variability, and surmised that

       Donald’s hemoglobin level could be the same as it was before. Dr. Bolton told Dr. Balagani

       about the hemoglobin results, and he advised her that they needed to get a specialist involved

       because, at that point, they had enough lab test results to conclude that Donald was suffering

       from HA.

¶ 12          At approximately 10:30 p.m., Dr. Bolton spoke with Dr. Thomas, the on-call

       hematologist. When asked during the trial to describe her understanding of her consultation with

       Dr. Thomas, Dr. Bolton replied: “My understanding was that we were to give steroids, to give

       IVIG, to try to get cross-matched blood, but not to give any more O negative blood, and also if I

       was concerned about infection, which we were, that we should consult an infectious disease

       doctor to get their opinion with regards to steroids.” (Emphasis added.) Dr. Bolton then testified,

       “based upon that,” she immediately contacted Dr. John Farrell, the on-call infectious disease

       specialist. When asked what her understanding of the treatment plan was, based upon her

       consultation with Dr. Farrell, Dr. Bolton responded, “it was my understanding that steroids could

       weaken his immune system, and so we should proceed with caution, and therefore, it was my

       understanding that we should not give steroids at this point.”




                                                        6
¶ 13           Dr. Bolton then immediately called Dr. Balagani, communicated both of the specialists’

       treatment recommendations, and told him how sick Donald was “because [she] was still worried

       about him.” Dr. Bolton testified that, after weighing the benefits against the risks, Dr. Balagani

       recommended that they give Donald IVIG and steroids, 1 but he “agreed that we needed to try to

       get cross-matched blood and not to give any more O negative blood.” Dr. Bolton noted in the

       medical record that Dr. Balagani “did not want any more blood transfused.” In her testimony, Dr.

       Bolton explained that Dr. Balagani meant no more un-crossmatched blood, which Dr. Balagani

       confirmed in his own testimony. 2 She stated that Dr. Balagani gave her this order sometime after

       her consultation with Dr. Thomas. Dr. Bolton testified that she ordered everything that she and

       Dr. Balagani agreed upon “based on Dr. Farrell and Dr. Thomas’ recommendations.”

¶ 14           However, during cross-examination, Dr. Bolton admitted that there was nothing in the

       medical record, including her own notations, suggesting that Dr. Thomas had told her not to

       transfuse any more O negative blood; Dr. Bolton’s notation merely stated that Dr. Balagani “did

       not want any more blood transfused.” Moreover, Dr. Bolton admitted that the medical record

       reflected that Dr. Thomas recommended that steroids and IVIG be given to treat Donald’s

       condition and that there had been no recommendation to delay these treatments.

¶ 15           OSF’s blood bank was having difficulty crossmatching Donald’s blood, so they

       transferred the job to the Red Cross blood bank. They said they “had never seen anything like

       this when trying to crossmatch blood.” Dr. Bolton testified that, by midnight, the blood bank

       still did not know when it would be available; they said it could be hours, or it could be the next

       day. Dr. Bolton urged them to get it done as soon as possible. She testified that, based on her


               1
                It was decided afterwards to hold off on steroids until they further evaluated Donald’s condition
       because they did not want to weaken his immune system.
              2
                According to Dr. Bolton, Dr. Balagani told her not to give more O negative blood out of
       concern that they would be adding more antibodies that would cause him to hemolyze faster.
                                                           7
       conversation with Dr. Thomas, she believed Donald needed blood, but only crossmatched blood.

       Dr. Bolton ordered IVIG at 10:53 p.m. However, the pharmacy did not fill that order until 12:50

       a.m. Dr. Bolton ordered steroids to be administered at 12:49 a.m., but that order was not filled

       until 1:18 a.m. and steroids were not given to Donald until approximately 2:00 a.m. IVIG and

       steroids can take hours or even days to take effect.

¶ 16          At approximately 2:35 a.m., Donald stopped breathing and his heart rate dropped

       precipitously. A “code blue” was called two minutes later. (Before he coded, Donald had not

       been complaining of anything and his oxygen levels were normal.) During the code, an IVIG

       treatment was given and Donald’s hemoglobin was tested at 5.4 g/dL. Donald was intubated at

       2:45 a.m. and again 3:05 a.m. However, efforts to revive him were unsuccessful. Donald was

       given two additional units of O negative blood at 3:08 a.m. and 3:14 a.m. Dr. Bolton later

       testified that Donald was “already dead” at that time. Donald was pronounced dead at 3:40 a.m.

       An autopsy performed at the family’s request revealed “no anatomic cause of death” and no lung

       infection or other infection. The death certificate signed by Dr. Balagani identified the cause of

       death as cardiac arrest as a result of shock due to HA.

¶ 17          Angela subsequently filed this medical malpractice action. The Thomas defendants filed

       a motion for summary judgment, arguing that Dr. Thomas owed no duty of care to Donald due to

       his status as an on-call consulting physician. The trial court granted the motion, ruling that, as a

       matter of “public policy,” the duration of the contact between Drs. Thomas and Bolton was

       insufficient to establish a doctor/patient relationship or a duty of care.

¶ 18          Before the matter proceeded to trial, Angela filed a motion in limine to bar defense

       counsel from asking questions that would suggest that Dr. Thomas was the sole cause of

       Donald’s death. In support of her motion, Angela noted that no expert had opined that Dr.


                                                          8
       Thomas was the sole cause of Donald’s death and argued that it would be highly inflammatory to

       imply as much to the jury. The trial court granted Angela’s motion “as to duty, breach, and

       violation of the standard of care.” The court reasoned that allowing the defendants to suggest that

       Dr. Thomas had breached the standard of care or was negligent in any fashion would conflict

       with the court’s prior ruling that Dr. Thomas owed no duty of care to Donald. However, the

       court ruled that the defendants were not barred from inquiring or presenting evidence regarding

       “Dr. Thomas’ role in the treatment and advice given.”

¶ 19           The Balagani defendants later sought to present evidence suggesting that Dr. Thomas was

       the sole proximate cause of Donald’s death. Specifically, they sought to cross-examine Dr.

       Charles Abrams, Angela’s testifying expert hematologist, about some of his prior opinions about

       Dr. Thomas’s conduct in treating Donald. 3 In his Illinois Supreme Court Rule 213 disclosures,

       Dr. Abrams opined that Dr. Thomas had breached the standard of care by failing to recommend

       the immediate resumption of blood transfusions. Dr. Abrams further opined that: (1) “[a]n ICU

       physician does not typically contact the on-call hematologist at 11:45 p.m. unless the

       hematologist’s advice is urgently sought”; (2) Dr. Thomas “should have obtained a complete

       picture of Mr. McIntyre’s condition and stability,” which “is difficult to do over the telephone”;

       (3) if Dr. Thomas had any uncertainty about the situation, Dr. Thomas “should have come to the

       hospital that night to personally evaluate [Donald]”; (4) Dr. Thomas “should have made sure (at

       the time of Dr. Bolton’s phone call) that steroids, IVIG, and blood transfusion were already on

       board and being given to Mr. McIntyre.”; (5) Dr. Thomas failed to obtain a complete evaluation

       of the serial hemoglobin values that were available and failed to assure that Donald was

       “expeditiously being given the appropriate medications by the ICU team to treat autoimmune
               3
                Angela retained Dr. Abrams to establish the standard of care for a hematologist under the
       circumstances, and Dr. Abrams had issued his initial expert report before Dr. Thomas was dismissed as a
       defendant.
                                                          9
       [HA],” (i.e., “steroids and IVIG”); (6) Dr. Thomas “appeared to have failed to inquire about the

       status of *** McIntyre’s blood transfusions and to have advised and strongly advocated for

       additional blood to be given immediately to Mr. McIntyre.”; (7) Instead, Dr. Thomas “decided to

       wait until the next morning to assess Mr. McIntyre in person”; and (8) “[h]ad Dr. Thomas

       created the appropriate sense of urgency at the time of the 11:45 p.m. phone call (by coming to

       the hospital himself or even over the telephone) and advocated for the immediate resumption of

       O-negative blood transfusions, [Donald] would likely be alive today. [Dr. Thomas’s] failure to

       do so was beneath the standard of care.”

¶ 20          Similarly, during his subsequent discovery deposition, Dr. Abrams explicitly faulted Dr.

       Thomas for “not doing what was necessary to keep [Donald] alive that night.” Specifically, Dr.

       Abrams testified that Dr. Thomas “should have inquired further and determined what the

       hemolysis process was from the lab values and ordered blood [transfusions].” Dr. Abrams

       testified that “[w]hat is relevant is that a medical team was calling a specialist that treats this

       specific disease. The medical team might know all the relevant information, they might not. It’s

       up to Dr. Thomas to solicit all that he needs to know.” When asked whether he “knew the answer

       to that question,” Dr. Abrams stated, “[e]ither he did and made an egregious error, or the error

       was in not soliciting the information.”

¶ 21          Counsel for the Balagani defendants sought to question Dr. Abrams about these opinions

       and about his opinion regarding the proximate cause of Donald’s death. Before questioning Dr.

       Abrams on these matters, defense counsel asked the court to clarify its prior in limine ruling

       regarding Dr. Thomas and proximate causation issues. The court clarified that the defendants

       were not prohibited from suggesting that Dr. Thomas was the sole proximate cause of the

       injuries suffered by Donald provided that there was “expert testimony to say something of that


                                                       10
       nature” or evidence of “reliance by somebody that was in the chain of circumstance.” The court

       explained that the prior order on Angela’s motion in limine did not preclude the defendants from

       suggesting that Dr. Thomas was the sole proximate cause of Donald’s death. Instead, that ruling

       addressed whether Dr. Thomas owed a legal duty to Donald, not whether Dr. Thomas performed

       some act which was a proximate cause of Donald’s injuries. Accordingly, the court concluded

       that the defendants were not barred from showing that Dr. Thomas performed some “intervening

       or superseding act” that, “just like any other intervening circumstance, whether it was an

       ambulance crash on the way to the hospital or any other number of things,” could be inferred

       from the evidence to be the sole proximate cause of the injury. The court also stated that

       testimony supporting such an inference was “admissible for that purpose,” and “would not be

       barred by any prior ruling.” Nor was there any reason that such testimony should be “otherwise

       limited.” In sum, the trial court ruled that the defendants could delve into Thomas’s role in

       proximately causing Donald’s death if they could establish by competent evidence that “others

       relied upon [Dr. Thomas’s] guidance,” and “the jury needs to decide whether that was the cause,

       sole proximate cause, or not.”

¶ 22          During cross-examination, Dr. Abrams testified that he had initially opined that Dr.

       Thomas was at fault for not instructing Dr. Bolton that Donald was to receive continuous blood

       transfusions to stabilize him, but that his opinion changed after he read Dr. Thomas’s

       supplemental deposition wherein Dr. Thomas retracted his earlier testimony that he had ordered

       no O-negative blood to be transfused. In response, Dr. Balagani’s counsel stated, “[well] we’ll

       ask Dr. Thomas about that, I guess.” On redirect, Angela’s counsel asked whether Dr. Thomas’s

       statement in his supplemental deposition that “I clearly told them to give blood” was what

       changed Dr. Abrams’s mind. Dr. Abrams responded in the affirmative.


                                                     11
¶ 23           Based on Dr. Abrams’s Rule 213 disclosures, the Balagani defendants attempted to make

       an offer of proof that Dr. Abrams, if called to the stand, would testify that Dr. Thomas breached

       the standard of care and that such breach was the sole proximate cause of Donald’s death. The

       trial court initially granted the oral offer of proof but then reversed its ruling when Angela’s

       counsel withdrew her concurrence and defense counsel was unable to cite to any “sole proximate

       cause” opinion in Dr. Abrams’s Rule 213 disclosures. Defense counsel later presented a new

       offer of proof without any reference to Dr. Thomas as the “sole” proximate cause. The trial court

       stood on its prior ruling. Specifically, the court stated:

                       “the defense may certainly show Dr. Thomas’ role and the defense has indicated

                       that they’re showing reliance upon Dr. Thomas’ advice as a consult. But in order

                       for there to have been a violation of standard of care, there would have to have

                       been a duty of care and the law of this case pursuant to previous rulings adopted

                       by this Court is that there was no doctor-patient relationship between Dr. Thomas

                       and [Donald] and, therefore, no duty. Whether the advice was in error or not does

                       not really become the issue. The issue is the reasonable reliance on that advice by

                       [the defendants] and, therefore, the previous rulings of the Court with regard to

                       Dr. Thomas’s testimony and liability are again confirmed by this Court.”

¶ 24           On several occasions during the trial, Dr. Bolton attempted to testify as to what Dr.

       Thomas told her regarding Donald’s treatment. Each time, Angela’s counsel objected on hearsay

       grounds. The trial court sustained the objections and ordered Dr. Bolton to testify only as to her

       side of the conversation (i.e., what she said to Dr. Thomas). Each time, the court instructed the

       jury to disregard any testimony that Bolton gave regarding what Dr. Thomas had told her. The

       court also allowed Dr. Bolton to testify, over an objection from Angela’s counsel, about her


                                                         12
       “understanding” of the treatment plan based upon her consultation with Dr. Thomas. Moreover,

       as noted above, Dr. Bolton testified on at least one occasion that her and Dr. Balagani’s

       treatment of Donald was “based on” Dr. Thomas’s recommendations. However, Dr. Bolton was

       not allowed to testify regarding what Dr. Thomas had said to her.

¶ 25          Moreover, the trial court granted Angela’s motion in limine to bar the Balagani

       defendants from asking Dr. Farrell about the duty of a consulting physician “in a back door

       attempt to impugn” Dr. Thomas’s conduct. In granting Angela’s motion, the court ruled that the

       defendants would not be allowed to use this line of questioning to “cast aspersions upon other

       consultants,” specifically Dr. Thomas. Defense counsel never called Dr. Thomas to the stand to

       ask him what he had told Dr. Bolton regarding Donald’s care.

¶ 26          Every expert that testified at trial, including Angela’s experts, agreed that it was within

       the standard of care for the treating ICU doctors to consult with a hematologist to guide Donald’s

       care. Beyond that, however, several of the experts disagreed as to the specific standard of care

       for treating the type of HA that Donald was suffering from when he was admitted to the MICU.

       Specifically, the experts disagreed on whether the standard of care required that Donald be given

       transfusions of un-crossmatched (O-negative) blood to replace his lost red blood cells.

¶ 27          Dr. Abrams opined that, while crossmatched blood should be given when there is “plenty

       of time,” severely anemic patients with aggressive HA like Donald must be transfused with un-

       crossmatched, O-negative blood. According to Dr. Abrams, O-negative blood is acceptable for

       everyone and will not be hemolyzed (destroyed) by a severely anemic patient any faster than the

       patient’s own red blood cells. Moreover, because Donald had not experienced an adverse

       reaction to the first transfusion with O-negative blood at 5:30 p.m., his doctors should not have

       hesitated to give him more O-negative blood later that evening. Dr. Abrams also opined that the


                                                      13
       treatment for autoimmune HA also involves the administration of IVIG and steroids. The blood

       transfusions provide fresh red blood cells, which keeps the patient alive while the IVIG and

       steroids work to quell the immune response and cure the disease. Dr. Abrams opined that the

       ICU doctors’ failure to give Donald more transfusions of O-negative blood, coupled perhaps

       with their failure to administer steroids and IVIG in a timely manner, caused Donald’s death.

¶ 28          Similarly, Dr. Timothy Albertson, Angela’s liability expert, opined that: (1) as the

       attending critical care physician managing the MICU, Dr. Balagani was “ultimately responsible”

       for Donald’s care, and he should have known how to treat autoimmune HA; and (2) Dr.

       Balagani’s failure to maintain Donald’s hemoglobin levels by giving repeated (un-crossmatched)

       blood transfusions and his failure to give IVIG and steroids earlier in the day deviated from the

       standard of care and was a cause of Donald’s death.

¶ 29          Two defense experts disagreed. Dr. Martin Tobin testified that giving more blood to

       Donald would have further accelerated the hemolysis, essentially “adding fuel to the fire.”

       Another defense expert, Dr. DeBoisblanc, testified that he also would not have given Donald

       more blood, for several reasons. First, he opined that the anemia Donald was experiencing was

       not necessarily life threatening, and that he saw patients all the time “walking around” with

       hemoglobin levels in the threes (lower than Donald’s). Thus, in Dr. DeBoisblanc’s opinion, there

       was something else aside from his low hemoglobin count that was driving Donald’s illness. In

       addition, Dr. DeBoisblanc noted that the elevated lactic acid in Donald’s blood meant that there

       was something wrong with the whole body; multiple organs were unable to utilize or process

       oxygen. Moreover, the hemoglobin inside red blood cells is toxic, and when a red blood cell is

       destroyed, it releases “free hemoglobin” into the bloodstream, which Dr. DeBoisblanc compared

       to having “Clorox bleach in your bloodstream.” The body normally produces a substance called


                                                      14
       haptoglobin to scavenge up the free hemoglobin, but if the hemolysis is brink, the haptoglobin

       cannot keep up and it is left to the kidneys to filter out the toxins. When the kidneys become

       overwhelmed, the patient ends up with blood in the urine, which is what happened to Donald. Dr.

       DeBoisblanc opined that more transfusions of O-negative blood would have worsened the

       problem because it would produce more free hemoglobin. In Dr. DeBoisblanc’s opinion, the

       hemolysis that Donald was experiencing was too rapid to allow the free hemoglobin to be

       cleared from his body; it was a fatal case, no matter what anyone did for him.

¶ 30          The experts presented similar but somewhat differing opinions as to whether and to what

       extent a critical care ICU doctor should know how to treat a rare condition like the autoimmune

       HA that Donald was experiencing when he was admitted to the MICU. Dr. Balagani testified that

       a critical care doctor is a generalist whose role is to stabilize the patient until the relevant

       specialist takes over.   Critical care doctors “rely on their consultants.” According to Dr.

       Balagani, HA is not something usually treated in an ICU and the extremely aggressive form of

       HA that Donald experienced was very unusual. For HA that complicated, Dr. Balagani wanted to

       “make sure our consultants were there.”

¶ 31          Similarly, Dr. Tobin testified that: (1) it was appropriate for Drs. Balagani and Bolton to

       wait for a hematology consult until the time period when Dr. Thomas was called; (2) HA is

       typically not an emergency requiring emergent care and treatment, and patients with autoimmune

       HA are typically not seen and treated in the ICU; (3) the standard of care did not require Drs.

       Balagani and Bolton to be experts in the treatment of HA in the critical care setting; and (4) Dr.

       Balagani’s approach to treating Donald in the face of autoimmune HA was appropriate. Another

       defense expert, Dr. Morey Blinder, testified that Donald had a rare form of HA that intensive

       care doctors do not typically treat, and that the MICU team should not be faulted for a lack of


                                                      15
       experience in dealing with this rare condition. Dr. Blinder further opined that: (1) “[t]here is very

       little expertise outside the area of hematology with respect to the diagnosis and treatment of

       [HA]”; (2) “[t]here is even less experience, even among hematologists, regarding the diagnosis,

       care, and treatment of autoimmune [HA]”; and (3) there is greatly limited experience on the part

       of hematologists in treating autoimmune [HA] mixed type.”

¶ 32          As noted above, Dr. Albertson, Angela’s liability expert, opined that Dr. Balagani was

       “ultimately responsible” for Donald’s care, and he should have known how to treat autoimmune

       HA. However, Dr. Albertson also acknowledged that it was “perfectly reasonable” for Drs.

       Balagani and Bolton to rely upon the advice they received from hematology. Moreover, Dr.

       Abrams testified that the hematologist (Dr. Thomas) had superior knowledge about

       hematological problems and that, under the circumstances of this case, he would expect Drs.

       Balagani and Bolton to rely upon direction from the hematologist.

¶ 33          During cross-examination, Dr. DeBoisblanc testified that, even after having discussions

       with a consultant, it was the critical care physician’s decision whether or not the patient needs

       more transfusions. He further testified that: (1) IVIG and steroids were well-known therapies for

       HA which were administered to reverse the process causing hemolysis; (2) it is appropriate to

       treat HA patients with steroids even if infection is suspected as a cause; and (3) Donald was

       never diagnosed with an infection.

¶ 34          Angela presented the following evidence as to damages. Angela testified that Donald

       worked at RLI Insurance (RLI) for 23 years, starting as inventory clerk, and then working his

       way up to becoming a vice president of RLI and running its print shop. Angela worked with

       Donald at RLI for 17 years. She testified that Donald was a healthy and very active man who

       worked long hours, took his work seriously, and had a great relationship with clients. It was


                                                        16
       Donald’s dream to run his own printing business. When he floated the idea to some of RLI’s

       clients, they told him that he was so good at what he did that they would take their printing needs

       to Donald’s upstart business. Donald left RLI in 2007, built an annex to his house where he

       could run the business, and took out a $40,000 bank loan to purchase the necessary printing

       equipment. By 2008, he was receiving a lot of business from former RLI clients (including

       CEFCU and others) and attracting new clients. These clients wanted Donald to perform larger

       jobs, which required him to buy larger printing equipment and expand his business. According

       to Angela, Donald was busy up until the time of his hospitalization in September 2009 and it

       appeared that Donald’s plan to grow the business was working. Donald was very happy and

       content with how the business was progressing.

¶ 35          Tim Kruger, Donald’s former coworker, also testified on Angela’s behalf. Kruger was a

       former chief account comptroller and treasurer at RLI. Kruger worked alongside Donald and

       frequently interacted with him in the print shop. Kruger testified that Donald was an extremely

       hard worker who spent long hours in the print shop and had a desire to satisfy his customers.

       Kruger further testified as to Donald’s ingenuity and resourcefulness by describing how Donald

       had developed and implemented a plan to utilize RLI’s print shop for external customers so that

       the printing machinery, which was often idle when not being used for printing at RLI, could be

       turned into a profit center, thereby bringing in more revenue to RLI.

¶ 36          Curtis Wardelman, a Certified Public Accountant and a close friend of Angela’s and

       Donald’s, also testified. Wardelman met Donald through RLI. He did consulting work for RLI

       and handled financial matters for some of RLI’s executives. Wardelman testified that he

       observed Donald’s work habits and abilities for many years. He stated that Donald was an

       extremely hard worker who arrived at work by 6:00 a.m. each workday. Donald started out as a


                                                       17
       pressman, then became a production supervisor, then a manager, and then the assistant vice

       president of RLI’s printing and mail systems. Wardelman testified that Donald came up with the

       idea of using RLI’s print shop to generate additional profit from outside clients. Donald

       successfully solicited clients for this venture (including CEFCU and Par-a-Dice Casino), and

       turned RLI’s printing shop from a cost center to a profit center. Wardelman testified that Donald

       had been “very successful” in developing that business model.

¶ 37          Wardelman testified that Donald approached him in 2006 for professional advice and

       guidance because Donald wanted to build his own printing business. Donald approached

       Wardelman because of their friendship and because Wardelman had experience in planning and

       executing plans to put new businesses together. Wardelman testified that, by the time he left RLI

       in 2006, Donald had a plan to obtain space, equipment, and supplies for the business. Donald

       bought his first printing press and formally started his new business in September 2007. At that

       time, Donald was doing side jobs to augment his income in addition to the six months of income

       he had obtained from RLI upon leaving. Wardelman opined that Donald was developing his

       business “methodically” and was trying to do things in stages, adding further printing presses

       depending how the business was growing. By 2008, the business was growing and Donald

       wanted to grow it even more. Gross sales began to jump. By 2009, Donald appeared to be

       busier and busier. Between January and April 2009 (during the heart of the recession), Donald

       obtained a $40,000 loan to purchase two new, larger, multiple color printing presses in order to

       meet the increasing demands of his clients. Wardelman testified that Donald was “extremely

       busy” thereafter and that it was Wardelman’s impression that Donald’s business was growing

       and would continue to grow. Donald was doing work for CEFCU, Par-A-Dice, and the Peoria




                                                      18
       Civic Center.   RLI was getting out of the printing business at that time, and Donald had

       maintained contacts with RLI’s former clients and was soliciting their business.

¶ 38          Wardelman stated that Donald’s printing business had a net loss of $24,000 in 2007, but

       turned a profit of $11,000 to $12,000 in 2008 on gross sales of $117,000.           According to

       Wardelman, from January 1, 2009, through the date of Donald’s death in September 2009,

       Donald’s business had gross sales of $65,000 with a net income of approximately $15,000.

       When asked to explain the figures for 2009, Wardelman admitted that there was “some hesitation

       about 2009” because Donald’s software systems for his printing business were password

       protected “so we were never able to get into the software to see what was there.” When

       Angela’s counsel tried to solicit Wardelman’s opinion as to “what type of projected growth the

       business might have,” the trial court sustained defense counsel’s objections based on speculation,

       lack of foundation, and failure to disclose under Rule 213. During cross-examination,

       Wardelman admitted that he had never prepared a formal business plan for Donald’s business

       and was not aware of such a plan. He also admitted that he could not say one way or the other

       whether the business would have “taken off” or “failed.”

¶ 39          Wardelman further testified that, after Donald died in September 2009, the business

       completely stopped because there was no one to run it. All of the printing presses and other

       equipment had to be liquidated, and Angela had to take a loss while wrapping up the business.

¶ 40          Prior to trial, Angela disclosed an expert witness, economist Dr. Edward Sattler, to

       provide opinion testimony on the projected growth of Donald’s printing business. Dr. Sattler

       purportedly would have testified that Donald’s business would have steadily increased its profits

       and would have yielded a profit of $125,000 by 2013. OSF moved in limine to bar Dr. Sattler’s

       testimony as speculative and without foundation. The trial court denied the motion, ruling that


                                                      19
       OSF’s objections were to the weight of Dr. Sattler’s proposed opinion, not its admissibility.

       Nevertheless, Angela never called Dr. Sattler at trial.

¶ 41          During closing argument, Angela’s counsel told the jury that he would make suggestions

       based upon the evidence with regard to Donald’s background and experience, the history of his

       being successful in providing for his family and his income growth, his previous occupational

       history, and evidence of his industriousness and occupational abilities. Counsel noted that his

       argument was merely a suggestion and that it was up to the jury to choose what it believed was

       appropriate. At one point during closing, Angela’s counsel argued as follows:

                      “I’m going to estimate that by 2013 Donald was making right around or a little bit

                      more than he was when he left RLI. I think that’s conservative, but you may

                      disagree and that’s up to you. So I’m going to pick—I believe the last salary was

                      $117,000. I’m going to suggest that if you estimate that he would have made

                      income of $125,0000 from his business and that projects out through 2028 where

                      he would have been age 67, that would be a total of $2 million in gross income.

                      Now, the law says that you’re going to have to adjust this for what they call

                      present cash value *** So I’m estimating that over that period of time, I think

                      being conservative to age 67 it would be $1,250,000 today.”

¶ 42          During the jury instruction conference, the trial court approved the jury instruction

       tendered by Angela, which was a very slightly modified version of Illinois Pattern Jury

       Instruction, Civil, No. 31.04 (2007) (hereinafter IPI Civil (2007) No. 31.04), the jury instruction

       governing the determination of damages for wrongful death that are recoverable by a widow or

       next of kin. IPI Civil (2007) No. 31.04 reads, as follows:




                                                        20
       “If you decide for the plaintiff on the question of liability, you must then

fix the amount of money which will reasonably and fairly compensate the [lineal

next of kin, e.g., widow] of the decedent for the pecuniary loss proved by the

evidence to have resulted to the [lineal next of kin] of the decedent. “Pecuniary

loss” may include loss of money, benefits, goods, services, [and] society [and

sexual relations].

       Where a decedent leaves [lineal next of kin], the law recognizes a

presumption that the [lineal next of kin] have sustained some substantial

pecuniary loss by reason of the death. The weight to be given this presumption is

for you to decide from the evidence in this case.

       In determining pecuniary loss, you may consider what the evidence shows

concerning the following:

               [1. What (money,) (benefits,) (goods,) (and) (services) the

       decedent customarily contributed in the past;]

               [2. What (money,) (benefits,) (goods,) (and) (services) the

       decedent was likely to have contributed in the future;]

               [3. Decedent's personal expenses (and other deductions);]

               [4. What instruction, moral training, and superintendence of

       education the decedent might reasonably have been expected to give his

       child had he lived;]

               [5. His age;]

               [6. His sex;]

               [7. His health;]

                                  21
                                       [8. His habits of (industry,) (sobriety,) (and) (thrift);]

                                       [9. His occupational abilities;]

                                       [10. The grief, sorrow, and mental suffering of next of kin;]

                                       [11. The relationship between [lineal next of kin, e.g. son] and

                               [decedent].]

                                       [12.    The     marital     relationship     that    existed   between

                               [widow/widower] and [decedent].]

                                       [Widow/widower] is not entitled to damages for loss of

                               [decedent's] society and sexual relations after [date of remarriage].”

¶ 43           The trial court gave this instruction to the jury almost exactly as written above except it

       inserted the names of Donald and his wife and children throughout and omitted the final sentence

       of the pattern instruction and the parenthetical phrase “and other deductions” from item number

       3 of the pattern instruction.

¶ 44           Following the trial, the jury returned a verdict: (1) in favor of Angela and against the

       Balagani defendants; (2) in favor of Angela and against OSF as to Dr. Balagani’s apparent

       agency and OSF’s derivative liability for Dr. Balagani’s negligence; (3) in favor of Dr. Bolton

       and against Angela as to Dr. Bolton’s alleged negligence; and (4) in favor of OSF and against

       Angela as to Angela’s claim for institutional negligence. The jury awarded Angela damages in

       the amount of $1.1 million for loss of money, goods, and services, and $500,000 for loss of

       society. The jury apportioned 70% responsibility to Dr. Balagani and 30% responsibility to OSF.

¶ 45           Angela subsequently filed a posttrial motion for new trial on damages only, arguing that

       the jury’s award of $500,000 for loss of society was grossly inadequate. The trial court denied

       Angela’s motion.

                                                          22
¶ 46          The Balagani defendants filed posttrial motions challenging the jury’s award for lost

       future earnings. The trial court denied the defendants’ motions. The court ruled that the jury

       “had more than sufficient evidence *** upon which to find and from which to infer the

       industriousness of the decedent and his likely future income and support of his family.” The

       court was not concerned with the issue whether the jury was advised of Donald’s “last income”

       so long as the jury did not use such evidence as a “multiplication factor to determine damages,”

       which it “obviously” did not. The court ruled that the evidence of Donald’s most recent income

       was “part of industriousness,” and noted that there was a “great deal of other evidence” from

       which the jury could infer damages, including other evidence of Donald’s industriousness and

       evidence of the nature of his work habits, his intentions for his business, and the potential

       income. The court found that, even if the income from Donald’s business was “far less” than it

       was, “still the jury could easily inferred fand allowed damages in the amount that they did.”

       With regard to the jury’s apportionment of damages, the court ruled that the jury was properly

       instructed and “had sufficient evidence before [it] to render the apportionment” that it did.

¶ 47          These consolidated appeals followed.

¶ 48          After Angela filed her appellant’s brief (and two days before the expiration of the twice-

       extended deadline for the Balagani defendants to file their appellees’/cross-appellants’ briefs),

       the Balagani defendants moved in the trial court for leave to supplement the record on appeal

       with various documents, including a set of numbered jury instructions, which included proposed

       instructions tendered by the defendants that the trial court had rejected. This court suspended

       briefing so the Balagani defendants could file a written motion to supplement the record in the

       trial court, which they subsequently filed with the trial court. Angela objected to the motion,

       arguing that the Balagani defendants should not be allowed to supplement the record with the


                                                        23
       numbered jury instructions because they failed to act with diligence in supplementing the record

       and because the document at issue was not an original document presented to the trial court and

       file-stamped by the clerk. The trial court granted the motion over Angela’s objection. Angela

       also appeals the trial court’s ruling on this issue.



¶ 49                                                ANALYSIS



¶ 51           Angela, the Balagani defendants, and OSF have each appealed aspects of the trial court’s

       judgment. We address each of their arguments in turn.

¶ 52                                             I. Angela’s Appeal

¶ 53           On appeal, Angela argues that the trial court erred when it (1) granted summary judgment

       in favor of the Thomas defendants, (2) denied her posttrial motion for a new trial as to damages,

       and (3) granted the Balagani defendants’ motion to supplement the record on appeal.

¶ 54                           A. Summary Judgment in Favor of the Thomas Defendants

¶ 55           As an initial matter, the Thomas defendants argue that this court lacks jurisdiction to

       consider the propriety of the trial court’s summary judgment order because Angela filed her

       notice of appeal prematurely, i.e., after the trial court entered judgment on the jury’s verdict but

       before the court ruled on the pending postjudgment motions.

¶ 56           Illinois Supreme Court Rule 303(a) states, in relevant part, as follows:

                       “(1) The notice of appeal must be filed with the clerk of the circuit court within 30

                       days after the entry of the final judgment appealed from, or, if a timely posttrial

                       motion directed against the judgment is filed, whether in a jury or a nonjury case,

                       within 30 days after the entry of the order disposing of the last pending

                                                          24
                      postjudgment motion directed against that judgment or order, irrespective of

                      whether the circuit court had entered a series of final orders that were modified

                      pursuant to postjudgment motions. * * *

                      (2) When a timely postjudgment motion has been filed by any party, whether in a

                      jury case or a nonjury case, a notice of appeal filed before the entry of the order

                      disposing of the last pending postjudgment motion, or before the final disposition

                      of any separate claim, becomes effective when the order disposing of said motion

                      or claim is entered.” Ill. S. Ct. R. 303(a)(1), (2) (eff. June 4, 2008).

¶ 57          On February 1, 2013, the trial court granted the Thomas defendants’ motion for summary

       judgment. In that order, the court stated that it was considering entering a Rule 304(a) finding as

       to that order and directed the parties to make recommendations on that issue. On February 12,

       2013, the court made a Rule 304(a) finding and stated that there was no just reason for delaying

       either enforcement or appeal, or both, of the court’s February 1, 2013, order. Angela filed a

       motion to vacate the court’s Rule 304(a) finding and a motion to reconsider. On March 18, 2013,

       the court denied Angela’s motion to reconsider and granted her motion to vacate the Rule 304(a)

       finding. The court entered judgment on the jury’s verdict on March 28, 2014. Thereafter, Angela

       and the Balagani defendants filed posttrial motions. On July 17, 2014, Angela filed her notice of

       appeal seeking review of the court’s summary judgment order. The court disposed of the

       posttrial motions on September 9, 2014.

¶ 58          The Thomas defendants argue that Angela’s notice of appeal filed on July 17, 2014, was

       ill-timed because it was filed more than 30 days after the entry of the jury’s verdict on March 28,

       2014, and before the September 9, 2014, rulings on the last pending posttrial motions. In

       response, Angela argues that although her notice of appeal was premature, it became effective


                                                         25
       upon the court’s ruling on the posttrial motions on September 9, 2014, and was therefore timely

       and sufficient to confer jurisdiction upon this court.

¶ 59          Under Rule 303(a)(2), “when [a] court renders a decision on a timely filed postjudgment

       motion ***, a premature notice of appeal takes effect when the court enters the order disposing

       of the last posttrial matter.” In re Estate of Hanley, 2013 IL App (3d) 110264, ¶ 43. Here,

       Angela’s notice of appeal as to the Thomas defendants was premature. However, once the trial

       court ruled on the last pending posttrial motions on September 9, 2014, the premature notice of

       appeal became effective. Thus, this court has jurisdiction to consider Angela’s appeal of the trial

       court’s grant of summary judgment to the Thomas defendants. See id.

¶ 60          Next, the Thomas defendants argue the summary judgment issue is moot and Angela is

       judicially estopped from pursing her claim against the Thomas defendants. Without any citation

       to authority, the Thomas defendants argue this issue is moot because Angela “obtained a

       monetary judgment in her favor in the amount of $1.6 million, and until such time as this Court

       reverses that judgment and remands the matter for a new trial, the issue of summary judgment

       *** is moot.” The Thomas defendants also argue that this issue is moot because, even if they

       were found liable, Angela was fully compensated. Additionally, the Thomas defendants argue

       that the doctrine of judicial estoppel prevents Angela from pursuing her claim against them

       because she went to trial with the Balagani defendants under the theory that they were liable for

       Donald’s death. In response, Angela argues that the issue is not moot, judicial estoppel does not

       apply, and the Thomas defendants should be sanctioned for raising these arguments.

¶ 61          “An issue is moot when intervening events have rendered it impossible for a reviewing

       court to grant the complaining party effectual relief.” Wilson v. Jackson, 312 Ill. App. 3d 1156,

       1162-63 (2000). Angela’s appeal of the trial court’s grant of summary judgment to the Thomas


                                                        26
       defendants is not moot just because other defendants were found liable for Donald’s death and

       Angela obtained a money judgment against them. As Angela notes, even though the jury’s

       verdict did not pertain to the Thomas defendants, they can still be held responsible if the

       evidence demonstrates that they were a cause in Donald’s death. Thus, the jury’s verdict is not

       an intervening event that has rendered it impossible for this court to grant Angela her requested

       relief, namely, reversal of the trial court’s order granting the Thomas defendants’ motion for

       summary judgment.

¶ 62          Nor does the jury’s award of damages against OSF and Dr. Balagani moot Angela’s

       appeal of the trial court’s grant of summary judgment in favor of the Thomas defendants. The

       judgment entered against OSF and Dr. Balagani has not yet been satisfied. The trial court has

       stayed execution of the verdict and judgment entered in Angela’s favor pending appeal. Thus,

       contrary to the Thomas defendants’ argument, Angela has not yet ben “fully compensated” in

       this matter. Moreover, even if additional damages cannot be awarded in any future action

       against the Thomas defendants (because the existing award of $1.6 million in damages would

       fully compensate Angela), Angela’s appeal involving the Thomas defendants would not be moot

       because a judgment of liability against the Thomas defendants would entitle Angela to collect

       some or all of those damages from another party (the Thomas defendants). A reversal of

       summary judgment for the Thomas defendants affords Angela the opportunity to obtain a

       judgment against the Thomas defendants, which, if granted, could afford Angela the right to

       secure relief from the Thomas defendants for some or all the losses she, Donald, and her family

       have suffered as a result of the defendants’ negligent actions or failures to act. The opportunity

       to obtain such relief from the Thomas defendants constitutes meaningful and “effectual” relief

       regardless of whether Angela also has the ability to collect damages from other defendants.


                                                      27
       Thus, it is not impossible for us to grant effectual relief to Angela by reversing the trial court’s

       grant of summary judgment in favor of the Thomas defendants. The jury’s award of damages

       against OSF and the Balagani defendants does not moot Angela’s appeal of that issue.

¶ 63          Since we have decided that the summary judgment issue is not moot, we must next

       decide whether judicial estoppel prevents Angela from pursuing her claim against the Thomas

       defendants. Judicial estoppel is an equitable doctrine that was established to protect the integrity

       of the judicial process by prohibiting parties from changing their positions in accordance with the

       exigencies of the moment. Seymour v. Collins, 2015 IL 118432, ¶ 36. Judicial estoppel generally

       applies when a party has (1) taken two positions, (2) that are factually inconsistent, (3) in

       separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to

       accept the truth of the facts alleged, and (5) the party has succeeded in the first proceeding and

       received some benefit from it. Id. ¶ 37.

¶ 64          Here, the Thomas defendants essentially argue that Angela is changing her position by

       challenging the trial court’s summary judgment order in their favor because she proceeded to

       trial against the Balagani defendants and presented arguments that the Balagani defendants were

       responsible for Donald’s death. The record is clear that Angela proceeded to trial under that

       theory because the trial court had already dismissed the Thomas defendants from the case. The

       theory that Angela presented at trial was an alternative theory that she was left with after the trial

       court granted summary judgment in favor of the Thomas defendants. This was not a change in

       position, but rather, an alternative argument. In any event, the argument Angela presented at trial

       was that the Balagani defendants were a cause of Donald’s death—not the sole cause. It is not

       contradictory for Angela to pursue a claim against the Thomas defendants for also being a cause

       in Donald’s death. Thus, judicial estoppel is inapplicable here.


                                                        28
¶ 65          Next, we address Angela’s request for sanctions against the Thomas defendants. Angela

       argues that Rule 375(b) sanctions are appropriate for the Thomas defendants’ mootness argument

       because the argument was made without any basis in law and the Thomas defendants failed to

       cite any authority to support their argument. Rule 375(b) provides, in relevant part, as follows:

                              “(b) Appeal or Other Action Not Taken in Good Faith; Frivolous Appeals

                      or Other Actions. If, after consideration of an appeal or other action pursued in a

                      reviewing court, it is determined that the appeal or other action itself is frivolous,

                      or that an appeal or other action was not taken in good faith, for an improper

                      purpose, such as to harass or to cause unnecessary delay or needless increase in

                      the cost of litigation, or the manner of prosecuting or defending the appeal or

                      other action is for such purpose, an appropriate sanction may be imposed upon

                      any party or the attorney or attorneys of the party or parties. An appeal or other

                      action will be deemed frivolous where it is not reasonably well grounded in fact

                      and not warranted by existing law or a good-faith argument for the extension,

                      modification, or reversal of existing law. An appeal or other action will be

                      deemed to have been taken or prosecuted for an improper purpose where the

                      primary purpose of the appeal or other action is to delay, harass, or cause needless

                      expense.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994).

¶ 66          A reviewing court may impose a sanction upon the motion of another party or on its own

       initiative. Id. Here, Angela did not file a proper motion with this court seeking sanctions. Rather,

       she merely included this request in her responsive brief.         Moreover, although the Thomas

       defendants’ mootness argument lacks merit, we do not find the argument to be frivolous. Nor do

       we find that the argument was brought in bad faith or for an improper purpose. Accordingly, we


                                                        29
       decline to impose Rule 375(b) sanctions on our own initiative.

¶ 67          Next, we reach the merits of Angela’s argument on appeal: whether the trial court erred

       when it granted the Thomas defendants’ motion for summary judgment. The trial court’s ruling

       on a motion for summary judgment is a question of law, which we review de novo. Willie Pearl

       Burrell Trust v. City of Kankakee, 2016 IL App (3d) 150398, ¶ 10. Summary judgment is not

       appropriate when: (1) material facts are disputed; (2) reasonable people could draw diverging

       inferences from the undisputed material facts; or (3) reasonable people could differ on the weight

       given to relevant factors of a legal standard at issue. Seymour, 2015 IL 118432, ¶ 42.

¶ 68          Angela argues that the trial court erred in granting the Thomas defendants’ motion for

       summary judgment on the basis that Dr. Thomas, as an on-call physician, did not owe Donald a

       duty of care. Angela maintains that a physician-patient relationship existed between Dr. Thomas

       and Donald which gave rise to a duty of care. For the following reasons, we agree with Angela.

¶ 69          This court recently addressed whether “on-call” physicians owe a duty of care to patients

       for whom attending physicians seek input from the on-call physician. Mackey v. Sarroca, 2015

       IL App (3d) 130219. In Mackey, the court began its analysis by noting, “[t]he central inquiry is

       whether the [on-call] physician has been asked to provide a specific service for the benefit of a

       specific patient.” Id. ¶ 20. The Mackey court examined the facts surrounding the duties and

       responsibilities of the “on-call” physician to determine whether there were indicia that he

       provided specific service for the benefit of a specific patient. Id. ¶ 26. Those indicia included: (1)

       whether the consultation was part of established procedures, protocols, or contractual obligations

       with the hospital as opposed to an informal or ad hoc basis; (2) whether the on-call physician (or

       his employer) was compensated for his services; (3) whether the on-call physician ordered or

       interpreted test results; (4) whether the on-call physician gave medical advice regarding the


                                                        30
       subject patient’s care; and (5) whether the on-call physician made decisions regarding the

       patient’s care. Id. ¶¶ 26-27.

¶ 70          In this case, the trial court focused only on the length of the telephone contact between

       Drs. Thomas and Bolton. The court then determined, as a matter of “public policy,” that the

       duration of the contact between Drs. Thomas and Bolton was insufficient to establish a duty of

       care. The court granted summary judgment on that basis.

¶ 71          After considering the factors articulated in Mackey, we conclude that the trial court erred

       in finding that Dr. Thomas owed no duty of care to Donald. The record established that Dr.

       Thomas was designated by OSF as the on-call hematologist physician, and as such, was in a

       position to expect to be called upon to render guidance and assistance in treating specific patients

       at OSF. The record further established that the on-call relationship that Dr. Thomas had with

       OSF, through his employer Oncology-Hematology Associates of Central Illinois, was part of a

       formalized patient care regime at OSF where treating/attending physicians were expected to

       contact an on-call specialist for consultation and guidance regarding specific patients as the need

       arose at OSF. The record also established that Thomas’s duty, as the on-call hematologist

       physician, included going to the hospital to render assistance in treatment if deemed necessary. It

       is evident that Dr. Thomas provided a specific service to a specific patient (Donald). Dr.

       Thomas’s consultations were followed pursuant to OSF’s protocol and other contractual

       obligations Dr. Thomas’s employer had with OSF. Dr. Thomas interpreted test results and gave

       medical advice to Dr. Bolton regarding Donald’s care, he was compensated for his consultation,

       and he was expected to come to the hospital to render treatment if it was deemed necessary.

¶ 72           Given these facts, it is clear that the indicia of a duty of care articulated by this court

       in Mackey were present in this case. Thus, the trial court erred as a matter of law when it found


                                                       31
       that the Thomas defendants owed no duty of care to Donald and granted summary judgment in

       their favor. We reverse the trial court’s order granting the Thomas defendants’ motion for

       summary judgment and remand for further proceedings on Angela’s claims against the Thomas

       defendants.

¶ 73                                 B. Angela’s Motion for a New Trial

¶ 74          Next, Angela argues that the trial court abused its discretion when it denied her motion

       for a new trial on damages only. Specifically, Angela argues the jury’s award of only $500,000

       for loss of society was grossly inadequate to compensate her and Donald’s four children, three of

       whom were minors at the time of Donald’s death, for the loss of Donald’s society.

¶ 75          Upon a finding of liability for a wrongful death, the jury must “fix the amount of money

       which will reasonably and fairly compensate the lineal next of kin * * * for the pecuniary loss

       proved by the evidence.” IPI Civil (2007), No. 31.04; see also Dobyns v. Chung, 399 Ill. App. 3d

       272, 286 (2010). This may include the loss of money, benefits, goods, services, sexual relations,

       and “society.” IPI Civil (2007), No. 31.04. “Society” means “the mutual benefits that each

       family member receives from the other's continued existence, including love, affection, care,

       attention, companionship, comfort, guidance, and protection.” IPI Civil (2007), No. 31.11;

       Dobyns, 399 Ill. App. 3d at 287. Where a decedent leaves lineal next of kin, the law recognizes a

       presumption that the lineal next of kin have sustained some “substantial" pecuniary loss by

       reason of the death. IPI Civil (2007), No. 31.04); Dobyns, 399 Ill. App. 3d at 286-87; Cooper v.

       Chicago Transit Authority, 153 Ill. App. 3d 511, 518-19 (1987). The weight to be given this

       presumption is for the jury to decide from the evidence presented in the case, including, inter

       alia, evidence of the decedent’s past and future contributions, the decedent’s habits of industry

       and thrift, the children's loss of future instruction, moral training, and superintendence of


                                                      32
       education as a result of the decedents death, and the descendants' grief, sorrow, and mental

       suffering and their relationship with the decedent. IPI Civil (2007) No. 31.04; Dobyns, 399 Ill.

       App. 3d at 287.

¶ 76          The amount of damages to be assessed is a question of fact for the jury to determine.

       Snelson v. Kamm, 204 Ill. 2d 1, 36 (2003). Thus, great weight is given to the jury’s decision on

       damages. Id. at 36-37. Generally, a decision as to whether to grant a new trial is a matter left to

       the sound discretion of the court, and the court’s determination will not be overturned on review

       absent an abuse of discretion. Wade v. Rich, 249 Ill. App. 3d 581, 587 (1993). However, a jury’s

       verdict may be set aside and a new trial ordered where the amount of damages is palpably

       inadequate or against the manifest weight of the evidence, where the jury has clearly disregarded

       a proven element of damages, or where the award bears no reasonable relationship to the loss

       suffered. Wade, 249 Ill. App. 3d 5at 587; Racky v. Belfor USA Group, Inc., 2017 IL App (5th)

       153446, ¶ 127; see also Snelson, 204 Ill. 2d at 37. A judgment is against the manifest weight of

       the evidence where the opposite conclusion is clearly evident or where the jury’s findings are

       unreasonable, arbitrary, and not based on the evidence. Racky, 2017 IL App (5th) 153446, ¶

       127; 1472 N. Milwaukee, Ltd. v. Feinerman, 2013 IL App (1st) 121191, ¶ 13.

¶ 77          The jury’s award of $500,000 was manifestly inadequate to compensate Angela and

       Donald’s four children for the loss of Donald’s companionship and society. Donald was only 48

       years old at the time of his death. He was active and physically fit, and he had no chronic health

       conditions before his hospitalization for HA in September 2009. He and Angela had been

       happily married for 19 years, and their three children were minors when Donald died. Angela’s

       and the children’s unrebutted testimony established that Donald was a loving and devoted

       husband and father who was actively involved in his children’s lives. Angela testified that she


                                                       33
       and Donald had been together for 24 years and they had a “wonderful relationship.” She

       described Donald as her “best friend,” her “soul mate,” and the man she was going to live with

       for the rest of her life. Angela and Donald got along very well and were “together all the time.”

       Angela also stated that Donald was very involved in the lives of each of his children. Donald

       had an adult daughter, Keri, from a previous marriage. Donald helped Keri through college and

       he and Angela babysat Keri’s young daughter every weekend while Keri had to work as a

       waitress. Angela testified that Donald had a special relationship with each of his children, he

       made time for each child, and he was “always doing special things for each one of them.” He

       taught them right from wrong, was “definitely” “very active” in their moral upbringing, helped

       them with their homework and sports, and “was always making them laugh.” He coached his

       son Braden’s baseball and soccer teams and went fishing and golfing with him. Shortly after

       Donald’s death, Braden earned a college scholarship to play baseball, but he ended up declining

       the scholarship and attending another college closer to home because he felt that he needed to be

       with his family and take care of his mother and sisters. Angela testified that Donald was their

       daughter Emilee’s “best friend,” and that he always held and took care of his youngest daughter,

       Samantha, whom Angela described as Donald’s “baby.”

¶ 78          Keri McIntyre Harvey, Donald’s adult daughter from a previous marriage, testified that

       Donald was “[p]robably the best man” that she had ever known. Donald helped Keri financially,

       fixed things around her house, and took care of Keri’s young daughter when Keri had to work as

       a waitress. Keri saw Donald multiple times per week and Donald was “always helping” Keri,

       her daughter, and the family. Keri described her father as her friend, and she stated that she

       thinks of him every day. She was at the hospital when her father died. Keri regretted that

       Donald had missed her wedding and other important events in the lives of his children. Keri also


                                                      34
       testified that Donald and Angela were passionately in love and were planning to take a trip to

       celebrate their twentieth wedding anniversary at the time of Donald’s death.

¶ 79          Braden McIntyre, Angela and Donald’s son, was 16 years old when Donald died. On the

       night Donald died, Braden helped Angela tell his younger sisters about their father’s death.

       Braden testified that, prior to his death, Donald had been very involved in coaching and

       supporting Braden’s sports teams (especially baseball) and that he had convinced Braden not to

       quit playing baseball. Braden also stated that Donald had taught him “how to be in a job and

       become a man.” He testified that his father was his “best friend.” At the time of the hearing,

       Braden was attending college near his mother’s home and was helping his mother and sisters as

       much as he could. He was playing baseball at college.

¶ 80          Emilee McIntyre, Angela and Donald’s elder daughter, was twelve years old when

       Donald died. Emilee testified that the McIntyres were a very close family and that Donald was

       “like a best friend” who coached all of the children’s sports teams, helped Emilee with her

       school work (especially math), took the children to games and played with them often. She

       described Donald as an “active and fun” person who “joked about everything.” Emilee regretted

       that her father did not live to see her graduate from the eighth grade or learn to drive.

¶ 81          Samantha McIntyre, Donald and Angela’s younger daughter, was eleven years old when

       Donald died. Donald helped Samantha with her math homework and coached her basketball and

       softball teams. Donald also helped Samantha with her pitching and practiced with her at home

       until she became a “really good” pitcher. (Donald also coached Emilee in basketball and

       softball.) Samantha stated that Donald was “so funny” and always know how to make her and

       the other children laugh. She said that she no longer laughs as much since her father’s death.

¶ 82          Neither Samantha nor any of the children were estranged from Donald at the time of his


                                                        35
       death. To the contrary, each of them was very close to Donald. By all accounts, Donald was a

       loving, caring, and dedicated father who was very involved in all aspects of his children’s lives

       (educational, athletic, moral, recreational).       The defendants presented no evidence to rebut

       Angela’s or the children’s testimony on these matters. Thus, the unrebutted testimony clearly

       established that Angela and the children suffered a substantial loss as a result of Donald’s

       untimely death. Under the circumstances presented in this case, the jury’s award of $500,000

       bore no reasonable relationship to the family members’ loss of Donald’s society (including his

       guidance and loving support as a devoted husband and father) or the pain and grief they suffered

       as a result. We are mindful of the deference owed to a jury’s damages verdict and we are

       normally reluctant to overturn such a verdict. Given the unrebutted evidence presented in this

       case, however, we find the jury’s verdict to be palpably inadequate and against the manifest

       weight of the evidence. To find that $500,000 (divided among the five survivors) is adequate

       compensation for the loss of Donald’s society would be to trivialize the devastating impact

       Donald’s death had on his family. We therefore reverse the damages verdict for loss of society

       and remand for a new trial on that issue. 4

¶ 83                            C. The Balagani Defendants’ Motion To Supplement Record

¶ 84           Angela also argues that the trial court erred as a matter of law when it granted the

       Balagani defendants’ motion to supplement the record on appeal.                 The parties dispute the

       standard of review that governs our analysis of this issue. Angela argues that we should review


               4
                  We may remand for a new trial on loss of society damages without ordering a new trial on the
       Balagani defendants’ liability in this case because: (1) the jury’s verdict on the Balagani defendants’
       liability is clear and amply supported by the evidence; (2) the questions of damages and liability are
       sufficiently separate and distinct that a new trial on damages only would not be unfair to the defendants;
       and (3) the record does not suggest that the jury reached a compromise verdict or that the error which
       resulted in the jury’s awarding inadequate damages also affected the jury’s finding on liability. See, e.g.,
       Cimino v. Sublette, 2015 IL App (1st) 133373, ¶ 111; Decker v. St. Mary’s Hospital, 249 Ill. App. 3d 802,
       816 (1993).
                                                           36
       the trial court’s ruling de novo, whereas the Balagani defendants argue that the abuse of

       discretion standard applies.

¶ 85          We agree with the Balagani defendants. This issue does not present a pure matter of

       statutory construction. Rather, it requires us to review the trial court’s attempt to “correct”

       “material omissions or inaccuracies” in the record pursuant to Illinois Supreme Court Rule 329

       (eff. Jan. 1, 2006). We review the trial court’s decision on this issue for abuse of discretion. See

       Joseph D. Foreman & Co. v. Neri, 6 Ill. App. 3d 313 (1972). As noted, an abuse of discretion

       occurs when the trial court’s ruling is arbitrary, fanciful, or unreasonable or where no reasonable

       person would adopt its view. Pavnica, 401 Ill. App. 3d at 740.

¶ 86          Although the Illinois Supreme Court rules expressly allow supplementation only with

       “original” documents, in this case, the court clerk failed to include the original document of the

       numbered jury instructions in the record and then lost or misplaced that document. (The clerk

       was unable to locate the original document until long after the record on appeal was filed.)

       Angela does not dispute the accuracy of the numbered jury instructions submitted by the

       Balagani defendants in their motion to supplement the record or argue that the set of jury

       instructions included in Angela’s counsel’s file differs in any way from the set submitted by the

       Balagani defendants. Thus, the numbered jury instructions do not add any substantive evidence

       to the case. The transcripts show that the instructions submitted by the Balagani defendants were

       given to the jury. The sole purpose of the written numbered instructions submitted by the

       Balagani defendants in their motion to supplement the record was to make the transcript of the

       jury instruction conference intelligible. Angela never questioned the accuracy of the instructions

       submitted by the defendants or the numbering of the instructions.

¶ 87          Nonetheless, Angela argues that the Balagani defendants waived their right to supplement


                                                        37
       the record due to their lack of diligence. The Balagani defendants sought multiple extensions of

       time in which to file their posttrial motions and then sought multiple extensions of time in which

       to file their briefs on appeal. However, they did not notice the missing jury instructions or move

       to supplement the record until two days before the final deadline to file their appellate briefs.

       Nevertheless, under the circumstances presented in this case, we cannot say that the trial court’s

       decision to allow motion was contrary to law or an abuse of discretion.

¶ 88                                 II. The Balagani Defendants’ Appeal

¶ 89          The Balagani defendants argue that they are entitled to a new trial on liability. They

       contend that the trial court committed reversible error by: (1) barring Dr. Bolton from testifying

       as to the content of her telephone conversation with Dr. Thomas on hearsay grounds; and (2)

       barring evidence that Dr. Thomas had breached the applicable standard of care, thereby

       improperly depriving the Balagani defendants of their main defense (i.e., the argument that Dr.

       Thomas’s negligence was the sole proximate cause of Donald’s death). The Balagani defendants

       also argue that the jury’s liability verdict was against the manifest weight of the evidence.

       Further, the Balagani defendants maintain that the jury erred when it awarded Angela $1.1

       million for lost future income. Because OSF raises this same argument regarding lost future

       income on appeal, we will address it with OSF’s appeal below.

¶ 90                                             A. Hearsay

¶ 91          As an initial matter, Angela argues that the Balagani defendants have forfeited their

       hearsay argument by not raising it in their posttrial motion. We disagree. The Balagani

       defendants argued in their posttrial motion that the trial court’s hearsay ruling was “error” and

       that the testimony at issue fell within an unspecified hearsay exception. There is some question

       whether these vague and skeletal arguments were sufficiently specific to preserve the issue for


                                                      38
       appeal, particularly considering that the Balagani defendants’ hearsay argument on appeal seems

       to be somewhat different from the argument raised below. See People v. Williams, 193 Ill. 2d

       306, 347 (2000); People v. Beasley, 307 Ill. App. 3d 200, 207-08 (1999). However, forfeiture is

       an admonition to the parties rather than a limitation on this court's jurisdiction, and it may be

       relaxed where the interests of justice so require. Texaco-Cities Service Pipeline Co. v. McGaw,

       182 Ill. 2d 262, 279 (1998); Lake County Grading Company, LLC v. Forever Construction

       Company, Inc., 2017 IL App (2d) 160359, ¶ 42; Kimble v. Illinois State Board of Education,

       2014 IL App (1st) 123436, ¶ 80; see also Niles Township High School District 219 v. Illinois

       Educational Labor Relations Board, 369 Ill. App. 3d 128, 137 (2006). In the case at bar, we find

       that the interests of justice require us to consider the Balagani defendants’ hearsay argument.

¶ 92          We conclude that the trial court erred in ruling that the testimony at issue was hearsay

       and by excluding the testimony on that ground. “Hearsay” is a statement, other than a statement

       made by the declarant while testifying at the trial or hearing, offered into evidence to prove the

       truth of the matter asserted. Ill. R. Evid. 801(c) (eff. Jan. 1, 2011); see also Leonardi v. Loyola

       University of Chicago, 168 Ill. 2d 83, 99 (1995).         An out-of-court statement offered into

       evidence for some purpose other than to prove the truth of the matter asserted is not hearsay.

       People v. Kliner, 185 Ill. 2d 81, 150 (1998). For example, suppose that witness A testifies that

       “B told me that event X occurred.” If A’s testimony is offered for the purpose of establishing

       that B said this, it is clearly admissible. Leonardi, 168 Ill. 2d at 99. However, if offered to prove

       that event X occurred, it is inadmissible. Id. Similarly, an out-of-court statement offered to prove

       its effect on a listener’s mind or to show why the listener subsequently acted as he did is not

       hearsay and is admissible. Fakes v. Eloy, 2014 IL App (4th) 121100, ¶ 124; see also Leonardi,

       168 Ill. 2d at 99; In re Marriage of Roepenack, 2012 IL App (3d) 110198, ¶ 44, abrogated on


                                                        39
       other grounds by Warren County Soil & Water Conservation District v. Walters, 2015 IL

       1177832.

¶ 93          Here, the trial court erred in excluding as hearsay Dr. Bolton’s testimony regarding what

       Dr. Thompson told her about Donald’s care. This testimony was not offered to prove the truth of

       any factual matter asserted by Dr. Thomas (e.g., that Dr. Thomas’ treatment recommendations

       were correct or medically sound). Rather, it was offered to show the effect of Dr. Thomas’s

       statements upon Drs. Bolton and Balagani, i.e., to show why they subsequently acted as they did.

       It could be argued that the statements were also offered to show that Dr. Thomas made certain

       particular statements or treatment recommendations, e.g., Dr. Thomas recommended that no

       further transfusions of O-negative blood be given. But that would also constitute an admissible,

       non-hearsay purpose. Leonardi, 168 Ill. 2d at 99.

¶ 94          Thus, the trial court erred as a matter of law in finding the testimony at issue to be

       hearsay, and, therefore, abused its discretion by excluding the testimony on hearsay grounds. See

       Peeples v. Village of Johnsburg, 403 Ill. App. 3d 333, 339 (2010) (“A trial court abuses its

       discretion *** where its ruling rests on an error of law”). However, even when an abuse of

       discretion has occurred, we will not reverse the trial court’s judgment on an evidentiary issue

       unless “the record indicates the existence of substantial prejudice affecting the outcome of the

       trial.” In re Leona W., 228 Ill. 2d 439, 460 (2008); Guski v. Raja, 409 Ill. App. 3d 686, 698

       (2011); Roepenack, 2012 IL App (3d) 110198, ¶ 44. Accordingly, the dispositive question is

       whether the trial court’s erroneous refusal to admit the evidence at issue resulted in “substantial

       prejudice affecting the outcome of the trial,” and is therefore reversible. Leona W., 228 Ill. 2d at

       460; see also Guski, 409 Ill. App. 3d at 698; Roepenack, 2012 IL App (3d) 110198, ¶ 44.

¶ 95          In this case, the trial court’s error was not outcome determinative, for several reasons.


                                                       40
       First, Dr. Bolton was allowed to testify about her “understanding” of the treatment plan based

       upon her consultation with Dr. Thomas, and she explicitly testified that the treatments she

       ordered were “based on Dr. Farrell and Dr. Thomas’ recommendations.” Thus, the Balagani

       defendants got the crux of their defense before the jury, even if Dr. Bolton was barred from

       testifying specifically about what Dr. Thomas had told her. Moreover, the Balagani defendants

       could have obviated the trial court’s erroneous hearsay ruling by calling Dr. Thomas and asking

       him what he said to Dr. Bolton. If Dr. Thomas denied telling Dr. Bolton to stop transfusing O-

       negative blood, as he did in his supplemental deposition, defense counsel could have impeached

       him with his contrary statement in his initial deposition. However, defense counsel chose not to

       do so, presumably for strategic reasons. Further, Dr. Bolton did not note in Donald’s medical

       chart that Dr. Thomas told her to stop transfusing O-negative blood. Her entry in the chart

       reflects that Dr. Balagani gave that order, and does not mention Dr. Thomas. Based on that

       evidence, the jury could have reasonably chosen not to believe Dr. Bolton’s account of what Dr.

       Thomas had told her (assuming that Dr. Bolton’s testimony contradicted her entry in the chart),

       even if she had been allowed to testify fully on that issue. Moreover, in response to questioning

       by defense counsel, Dr. Abrams and Dr. DeBoisblanc each reviewed the discovery depositions of

       Dr. Thomas, and each testified that Dr. Thomas had recommended steroids and IVIG, and

       apparently never told Dr. Bolton not to give blood (as Dr. Thomas had understood that the

       defendants were continuing to give blood). The jury could have reasonably credited this

       testimony. Accordingly, the trial court’s erroneous hearsay ruling was harmless.

¶ 96                              B. The “Sole Proximate Cause” Defense

¶ 97          The Balagani defendants also argue that the trial court erred by improperly barring them

       from presenting evidence that Dr. Thomas had breached the standard of care, which effectively


                                                      41
       prevented them from arguing that Dr. Thomas was the “sole proximate cause” of Donald’s death.

       The defendants correctly note that, because they denied in their answer that their own conduct

       was a cause of Donald’s death, they had a right to present evidence that Donald’s death was

       solely the result of another cause, even if that cause was the conduct of another party not named

       as a defendant in the lawsuit. Leonardi, 168 Ill. 2d at 93-95. The question is whether the trial

       court’s rulings in this case barred the defendants from presenting such evidence.

¶ 98          In granting Angela’s motion in limine, the trial court apparently initially barred the

       Balagani defendants from suggesting that Dr. Thomas breached the standard of care, was

       negligent, or was a proximate cause of Donald’s death. Subsequently, however, the trial court

       clarified that the Balagani defendants could present evidence suggesting that Dr. Thomas was the

       sole proximate cause of Donald’s death if they laid a foundation for such evidence by either

       presenting an expert opinion to that effect or by presenting evidence that they relied on Dr.

       Thomas’s advice in rendering treatment to Donald. Defense counsel was subsequently allowed

       to question expert witnesses, including Drs. Abrams and DeBoisblanc, about their understanding

       of Dr. Thomas’s treatment recommendations and the role of those recommendations in Donald’s

       treatment. Several of the medical experts testified that it was reasonable and to be expected that

       Drs. Balagani and Bolton would rely upon Dr. Thomas’s recommendations in this case. In

       addition, although Dr. Bolton was not allowed to testify as to what Dr. Thomas said to her, she

       was allowed to state that the Balagani defendants’ treatment of Donald was based upon Dr.

       Thomas’s recommendations. Further, during closing argument, Dr. Balagani’s counsel argued

       that Angela’s own experts suggested that it was reasonable for Drs. Bolton and Balagani to rely

       upon the consulting specialists and that those experts felt that the directions provided by Dr.

       Thomas “was the cause of Donald’s death.” Accordingly, contrary to the Balagani defendants’


                                                      42
        argument, they were not barred from suggesting to the jury that Dr. Thomas’s conduct was the

        sole proximate cause of Donald’s death.

¶ 99           The Balagani defendants appear to assume that the fact that they were barred from

        suggesting that Dr. Thomas breached the standard of care or was negligent precluded them from

        arguing that Dr. Thomas’s treatment recommendations were the sole proximate cause of

        Donald’s death. We disagree. Proximate causation is a separate issue from negligence or breach

        of duty, and the former may be proven without evidence of the latter. As noted, the defendants

        were allowed to, and did, present evidence suggesting that Dr. Thomas was the sole proximate

        cause of Donald’s death.

¶ 100                          C. Whether the Jury Verdict Is Contrary to Law or
                                  Against the Manifest Weight of the Evidence

¶ 101          The Balagani defendants argue that the trial court erred by denying their motions for

        judgment notwithstanding the verdict (JNOV) or a new trial based on the paucity of the evidence

        against them. A judgment notwithstanding the verdict (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. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). In ruling on a motion for

        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. Id. A JNOV may not be granted merely

        because a verdict is against the manifest weight of the evidence. Id. Alternatively, “[o]n a

        motion for a new trial a court will weigh the evidence and set aside the verdict and order a new

        trial if the verdict is contrary to the manifest weight of the evidence.” Id. at 454. “A verdict is

        against the manifest weight of the evidence where the opposite conclusion is clearly evident or

                                                          43
        where the findings of the jury are unreasonable, arbitrary and not based upon any of the

        evidence.” Id.; see also Redmond v. Socha, 216 Ill. 2d 622, 651 (2005). We review a trial

        court’s denial of a motion for JNOV de novo. Ford v. Grizzle, 398 Ill. App. 3d 639, 650 (2010).

        The standard of review of a trial court's denial of a motion for a new trial is whether the jury's

        verdict was against the manifest weight of the evidence. Friedman by Friedman v. Park Dist. of

        Highland Park, 151 Ill. App. 3d 374, 385 (1986).

¶ 102           The Balagani defendants argue that they are entitled to a JNOV or a new trial because:

        (1) all of the experts agreed that Donald’s rare condition was outside the expertise of an ICU

        doctor and that it was reasonable for Drs. Balagani and Bolton to rely upon Dr. Thomas’s advice;

        (2) no expert testified that Drs. Balagani and Bolton violated the standard of care by ignoring or

        failing to follow Dr. Thomas’s treatment recommendations. Accordingly, the Balagani

        defendants maintain that, based on the evidence presented, the jury could not possibly have

        found that Drs. Balagani or Bolton breached the standard of care. The defendants argue that, at a

        minimum, the jury’s liability verdict is against the manifest weight of the evidence and they are

        entitled to a new trial.

¶ 103           Contrary to the Balagani defendants’ argument, some of the experts opined that the

        ultimate decision regarding Donald’s treatment rested with Dr. Balagani, not the consulting

        physicians, and that Drs. Balagani and Bolton should have known how to treat Donald’s

        condition. Moreover, even if the jury found that Drs. Balagani and Bolton could have reasonably

        relied upon Dr. Thomas’s recommendations, there was evidence suggesting that Dr. Thomas

        never advised Dr. Balagani or Dr. Bolton not to transfuse more O-negative blood. (Drs. Abrams

        and DeBoisblanc testified to that effect based on Dr. Thomas’s discovery deposition, and Dr.

        Bolton’s medical chart notation stated that Dr. Balagani ordered no more blood transfusions but


                                                         44
        did not mention that Dr. Thomas had issued any such order or recommendation.) Accordingly,

        there was sufficient evidence in the record to support the jury’s verdict that the Balagani

        defendants were negligent and were liable for Donald’s death.

¶ 104                                           III. OSF’s Appeal

¶ 105          On appeal, OSF argues that: (1) it was entitled to a JNOV or, alternatively, a new trial on

        whether Dr. Balagani was an apparent agent of OSF; (2) Angela presented no competent

        evidence of loss of future income and the trial court erred in denying its posttrial motion to remit

        the jury’s award for lost future earnings (as the Balagani defendants also argue); and (3) the

        jury’s erroneous apportionment of liability between OSF and Dr. Balagani rendered its verdict

        against OSF on grounds of apparent agency “inconsistent,” “legally incomprehensible,” and

        against the manifest weight of the evidence. We address each of these arguments in turn.



¶ 106                                          A. Apparent Agency

¶ 107          The jury found that OSF was liable for Dr. Balagani’s negligence because Dr. Balagani

        acted as OSF’s apparent agent when he rendered treatment to Donald. OSF argues on appeal that

        it is entitled to a JNOV or, alternatively, a new trial on the issue of whether Dr. Balagani was an

        apparent agent of OSF. As noted above, 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.’

        ” Maple, 151 Ill. 2d at 453, quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510

        (1967)). In ruling on a motion for 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. Maple, 151


                                                        45
        Ill. 2d at 453. A JNOV may not be granted merely because a verdict is against the manifest

        weight of the evidence. Id. We review the trial court’s denial of a motion for JNOV de novo.

        Ford, 398 Ill. At 650. By contrast, a motion for a new trial should be granted when jury’s

        verdict is against the manifest weight of the evidence, i.e., if the opposite conclusion is clearly

        evident or the jury’s findings are unreasonable, arbitrary, or not based on the evidence (Maple,

        151 Ill. 2d at 453; see also Buckholtz v. MacNeal Hospital, 337 Ill. App. 3d 163, 168 (2003)),

        and it is that standard that guides our review of the trial court’s denial of a motion for a new trial

        (Friedman by Friedman, 151 Ill. App. 3d at 385).

¶ 108           A hospital may be vicariously liable for negligent medical treatment rendered in the

        hospital by an independent-contractor physician under the doctrine of apparent authority if the

        plaintiff establishes that: “(1) the hospital, or its agent, acted in a manner that would lead a

        reasonable person to conclude that the individual who was alleged to be negligent was an

        employee or agent of the hospital; (2) where the acts of the agent create the appearance of

        authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in

        them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent,

        consistent with ordinary care and prudence.” (Internal quotation marks omitted.) Gilbert v.

        Sycamore Municipal Hospital, 156 Ill. 2d 511, 525 (1993).

¶ 109           The first two elements are frequently grouped together and have been referred to as the

        “holding out” factor. The element of “holding out” is satisfied if the hospital holds itself out as a

        provider of emergency room care without informing the patient that the care is provided by

        independent contractors. Id. Hospitals increasingly hold themselves out to the public in

        expensive advertising campaigns as offering and rendering quality health services. Id. at 520.

        Moreover, the element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff


                                                          46
        or those responsible for his care (such as paramedics or a parent or other relative if the patient is

        a minor or an incapacitated adult) rely upon the hospital to provide complete emergency room

        care, rather than upon a specific physician. Id. at 525. The public is generally unaware of

        whether the staff in an emergency room is comprised of independent contractors or employees of

        the hospital, and absent a situation where a patient is somehow put on notice of a doctor’s

        independent status, a patient generally relies on the reputation of the hospital and reasonably

        assumes that the staff is comprised of hospital employees. Id. at 521.

¶ 110           Although Gilbert involved an emergency room setting, the Gilbert analysis is not limited

        to such situations. See, e.g., Malanowski v. Jabamoni, 293 Ill. App. 3d 720 (1997) (applying

        Gilbert in an outpatient clinic setting). However, liability attaches to the hospital only where the

        treating physician is the apparent or ostensible agent of the hospital. If the patient knows, or

        should have known, that the treating physician is an independent contractor, then the hospital

        will not be liable. Gilbert, 156 Ill. 2d at 522.

¶ 111           OSF argues that it is entitled to a JNOV or a new trial in this case because Angela failed

        to present any evidence, other than “speculation and conjecture,” suggesting that Dr. Balagani

        was an apparent agent of OSF or that either Angela or Donald justifiably relied upon any conduct

        by OSF or Dr. Balagani suggesting an agency relationship. Contrary to OSF’s argument, Angela

        proved all of the elements required to establish that Dr. Balagani was OSF’s apparent agent. OSF

        held itself out to the public as providing intensive medical care services without informing

        Donald that the care was provided by independent contractors. Moreover, Donald and those

        others responsible for his care, such as the paramedics who took him to OSF by ambulance,

        relied upon OSF to provide complete intensive care services, rather than upon a specific

        physician. Donald did not know that Dr. Balagani was not an employee of OSF and did not


                                                           47
        choose Dr. Balagani, or any other particular physician, as his doctor; rather, OSF provided Dr.

        Balagani as the head of the ICU that day. Because Angela alleged that it was OSF that did the

        “holding out,” not Dr. Balagani, Angela was not required to show that OSF acquiesced in any

        acts of “holding out” by Dr. Balagani. The jury was properly instructed on this issue by means of

        the applicable Illinois pattern jury instruction, and OSF did not object to the instruction given or

        tender an alternative instruction. Thus, the jury’s finding of apparent agency was neither contrary

        to law nor against the manifest weight of the evidence.

¶ 112                                B. Jury’s Award for Lost Future Income

¶ 113          The OSF and Balagani defendants challenge the jury’s award of damages of $1.1 million

        for the loss of Donald’s future income. They maintain that Angela presented no competent

        evidence of lost future earnings in this case “other than speculation” that Donald’s two-year old

        business “appeared to be improving.” The defendants characterize this evidence as a “compete

        failure of proof” on the issue of lost future income. Accordingly, the defendants argue that the

        trial court erred in instructing the jury on loss future income, that they should be granted a JNOV

        as to lost future income damages, and that all damages for lost future earnings must be remitted

        from the verdict. In the alternative, they argue that the jury’s damages award for lost future

        income was against the manifest weight of the evidence.

¶ 114          The defendants base their arguments primarily on the so-called “new business rule,”

        which Illinois courts have applied in some contract or business tort cases wherein a plaintiff

        claims damages resulting from the loss of a new business or an unrealized business opportunity.

        The “new business rule” precludes expert witnesses from speculating about possible lost profits

        in such cases “where there is no historical data to demonstrate a likelihood of future profits.”

        Meriturn Partners, LLC v. Banner & Witcoff, Ltd., 2015 IL App (1st) 131883, ¶ 23. Courts


                                                        48
        applying this rule allow recovery for “profits lost due to a business interruption or tortious

        interference with a contract,” but they require that “the business must have been established

        before the interruption so that the evidence of lost profits is not speculative.” SK Hand Tool

        Corp. v. Dresser Industries, Inc., 284 Ill. App. 3d 417, 427 (1996); see also Meriturn Partners,

        2015 IL App (1st) 131883, ¶ 23. The reason for the rule is that a new business has yet to show

        what its profits actually are. SK Hand Tool Corp., 284 Ill. App. 3d at 427. Moreover, “[a]s lost

        profits are frequently the result of several intersecting causes, the plaintiff must show with

        reasonable certainty that the defendant’s conduct caused a specific portion of the lost profits.”

        Id. Applying these standards, the defendants argue that the plaintiff was precluded from

        recovering damages for any lost future profits from Donald’s business because there was

        insufficient evidence to support any specific growth projections of the business. The historical

        profit data was limited, it showed modest growth in 2008 and decreased growth in 2009, and the

        plaintiff never called her disclosed expert economist who could have established more specific

        and less speculative growth projections.

¶ 115          Contrary to the defendants’ argument, however, the “new business rule” does not govern

        the determination of damages in this case. This is a wrongful death personal injury case, not a

        business tort or breach of contract case. Unlike the plaintiffs in the business tort cases cited by

        the defendants, Angela did not merely seek damages resulting from the lost profits of the

        defendant’s new business; rather, she sought a much broader category of damages. Specifically,

        she sought damages for the “pecuniary loss” caused to her and to Donald’s lineal next of kin as a

        result of Donald’s wrongful death. The determination of damages for this type of loss is guided

        by IPI Civil (2007) No. 31.04, the pattern instruction given to the jury in this case, which

        provides that “[p]ecuniary loss” from a wrongful death “may include loss of money, benefits,


                                                         49
        goods, services, [and] society [and sexual relations].” IPI 31.04. There is a presumption that

        Donald’s lineal next of kin have sustained “some substantial pecuniary loss” by reason of his

        death. Id. In determining pecuniary loss, the jury may consider what the evidence shows

        concerning the money, benefits, goods, and services the decedent “customarily contributed in the

        past” and “was likely to have contributed in the future.” Id. In making that determination, the

        jury could consider the decedent’s age, sex, health, occupational abilities, and “habits of

        industry, sobriety, and thrift.” Id. In order to be compensated for future loss of earnings, “[i]t is

        not necessary to establish an earnings history at the time of injury.” Fakhoury by Fakhoury v.

        Vapor Corp., 154 Ill. App. 3d 531, 539 (1987). “A youth with no earnings history should not be

        precluded from proving the future earning impact of his impairment in terms of his career

        ambitions.” Id.

¶ 116          The question of damages is one of fact, and courts “are reluctant to interfere with the

        discretion of the jury in its assessment of damages.” SK Hand Tool Corp., 284 Ill. App. 3d at

        426. Although a damages award for lost future earnings will not be sustained if it is based on

        speculative or conjectural testimony, where such an award finds its basis in testimony delivered

        with reasonable certainty, it must be upheld. Id.; see also Fakhoury by Fakhoury, 154 Ill. App.

        3d at 539. Expert testimony is not required to establish a plaintiff’s entitlement to lost future

        earnings.   Antol v. Chavez-Pereda, 284 Ill. App. 3d 561, 573 (1996); Tracy v. Village of

        Lombard, 116 Ill. App. 3d 563, 575 (1983).

¶ 117          In this case, the evidence was sufficient to support the jury’s damages award of $1.1

        million for loss of future income, money, goods, and services. Through the testimony of Angela,

        Donald’s widow, his former co-worker Tim Kruger, and his accountant and friend Curtis

        Wardelman, Angela presented ample evidence of Donald’s industriousness, initiative, ingenuity,


                                                          50
        and occupational abilities, including his ability to solicit clients and build and grow a business

        enterprise. The witness testimony suggested that Donald was a hard worker who had always

        been a good provider. He was reliable, responsible in his work, and he was methodical in

        growing his business. There was evidence that his business was growing, which the defendants

        did not dispute. Although the business had not yet achieved a high level of annual profits by the

        time of Donald’s death, the business had only been operating for two years at that time and

        Donald had recently made large capital investments in new printing equipment to grow the

        business and to meet the increased demands of his growing client base. Thus, the jury could

        reasonably have inferred that the business would continue to grow and yield higher profits in the

        ensuing years. Moreover, the jury was not required to base its damages award entirely on

        Donald’s current earnings or on a projection of the future profits generated by his upstart

        business alone. Rather, the jury was entitled to consider Donald’s future earning potential based

        upon his general abilities, industriousness, work habits, and his lifetime history of providing for

        his family. When those factors are taken into account, it is clear that the jury’s award is neither

        contrary to law nor against the manifest weight of the evidence.

¶ 118                                 C. Jury’s Apportionment of Liability

¶ 119         In the alternative, OSF argues that it is entitled to a new trial because the jury’s

        apportionment of responsibility between OSF and Dr. Balagani rendered its verdict against OSF

        on grounds of apparent agency “inconsistent,” “legally incomprehensible,” and against the

        manifest weight of the evidence. As noted above, after finding Dr. Balagani liable, the jury

        found that OSF was derivatively liable for Dr. Balagani’s negligence because Dr. Balagani was

        acting as OSF’s apparent agent when his conduct harmed Donald. The jury then apportioned




                                                        51
        fault between Dr. Balagani and OSF, finding Dr. Balagani to be 70% responsible Donald’s death

        and OSF 30% responsible.

¶ 120          As OSF correctly notes, the jury’s apportionment of legal responsibility was error. The

        jury rejected Angela’s claim of institutional negligence against OSF. Accordingly, OSF’s

        liability in this case was predicated entirely upon Dr. Balagani’s conduct and his status as an

        apparent agent of OSF. “When an action is brought against a master based on allegedly negligent

        acts of the servant and no independent wrong is charged on behalf of the master, liability is

        entirely derivative, being founded upon the doctrine of respondeat superior.” Moy v. County of

        Cook, 159 Ill. 2d 519, 524 (1994); Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill. App. 3d

        1051, 1060 (2011). A principal found to be vicariously liable is not found to be at fault but,

        rather, is liable only by application of the doctrine of respondeat superior. American National

        Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 353-54 (1992);

        Sperl, 408 Ill. App. 3d at 1060. In such cases, there is only a basis for indemnity, not for

        apportionment of damages between the principal and the agent. American National Bank & Trust

        Co., 154 Ill. 2d 347 at 353; Sperl, 408 Ill. App. 3d at 1060. Accordingly, the finding of an

        agency relationship between OSF and Dr. Balagani (and the lack of any independent act of

        institutional negligence performed by OSF) “eliminates the possibility of comparing conduct for

        purposes of apportioning liability.” Sperl, 408 Ill. App. 3d at 1060. Because OSF’s liability in

        this case is exclusively vicarious and derivative, fault may not be allocated between OSF and Dr.

        Balagani (id.); OSF is liable to the exact same extent that its agent, Dr. Balagani, is liable. (Sperl

        v. Henry, 2017 IL App (3d) 150097, ¶ 28, rev’d on other grounds, 2018 IL 123132; Bristow v.

        Griffitts Construction Co., 140 Ill. App. 3d 191, 194 (1986); Bean v. Missouri Pacific R.R. Co.,

        171 Ill. App. 3d 620, 625 (1988)). Put simply, OSF and Dr. Balagani are not “separate


                                                         52
        tortfeasors” whose relative fault could be compared. See Sperl, 2017 IL App (3d) 150097, ¶ 46.

        Thus, the jury clearly erred by apportioning liability between OSF and Dr. Balagani.

¶ 121          However, although OSF raised the jury’s apportionment error in its posttrial motion, it

        did not argue that the jury’s verdict was irreconcilably inconsistent or suggest that OSF was

        entitled to a new trial based on any such inconsistency. Having failed to raise this argument in

        its posttrial motion, OSF has forfeited the argument on appeal. Benford v. Everett Commons,

        LLC, 2014 IL App (1st) 130314, ¶ 45.

¶ 122          In any event, even if we were to address OSF’s argument for a new trial based on

        allegedly inconstant verdicts, we would reject it. In determining whether jury verdicts are

        inconsistent, a reviewing court “will exercise all reasonable presumptions in favor of the verdict

        or verdicts.” Redmond v. Socha, 216 Ill. 2d 622, 643 (2005). Verdicts will not be found legally

        inconsistent unless they are “absolutely irreconcilable.” Id. The verdict or verdicts will not be

        considered irreconcilably inconsistent if it is supported by any reasonable hypothesis. Id. at 644.

        Moreover, “only when a judgment rests on some particular finding for its validity and support

        will inconsistencies between two findings treating of the same essential matter necessitate a new

        trial.” (Internal quotation marks omitted.) Id. Whether two verdicts are legally inconsistent is a

        question of law. Id. at 642. Accordingly, a trial court’s order granting or denying a new trial

        based on a claim of legally inconsistent verdicts is subject to de novo review. Id.

¶ 123          Although the jury in this case erred as a matter of law by assigning different degrees of

        legal responsibility to OSF and Dr. Balagani, this error did not give rise to legally inconsistent

        verdicts requiring a new trial. In order to find OSF liable as Dr. Balagani’s apparent agent, the

        jury was required to find that: (1) OSF held itself out as a provider of medical intensive care

        services; (2) Donald neither knew nor should have known that Dr. Balagani was not an employee


                                                        53
        of OSF; and (3) Donald (or those responsible for his care) did not choose Dr. Balagani as a

        treater, but rather relied upon OSF to provide medical intensive care treatment and services. The

        jury could make each of those findings without allocating fault or liability between Dr. Balagani

        and OSF. In other words, the jury’s judgment that OSF was liable for Dr. Balagani’s negligence

        under agency principles did not “rest for its validity and support” on any particular allocation of

        responsibility or fault between Dr. Balagani and OSF. Rather, it rested entirely on the three

        findings listed above. Those findings were not contradicted by the jury’s erroneous allocation of

        liability. The jury’s erroneous allocation of fault between Dr. Balagani and OSF suggests that

        the jury did not understand the legal consequences of a finding of derivative or vicarious liability

        (i.e., that a vicariously liable principle is legally responsible for all of the damages caused by its

        agent’s negligence). That is not surprising, as this legal principle was not articulated in either the

        jury instructions or the verdict form. 5 However, the jury’s erroneous allocation of responsibility

        does not contradict or otherwise undermine the jury’s findings that Dr. Balagani was OSF’s

        apparent agent and that OSF was therefore liable for Dr. Balagani’s negligent acts and omissions.

¶ 124          A defendant is entitled to a new trial as to liability due to inconsistent verdicts only where

        the jury’s basis for finding the defendant liable is contradicted by some other verdict or finding

        made by the jury. See, e.g., Wottowa Insurance Agency, Inc. v. Bock, 104 Ill. 2d 311 (1984)

        (remanding for new trial where jury’s verdict that corporate officers were personally liable for

        fraud in connection with the execution of a guarantee agreement was inconsistent with its verdict

        that the guarantee at issue was a corporate obligation and not a personal guarantee); Action

               5
                   The pre-printed verdict form given to the jury merely stated that “[a]ssuming that 100%
        represents the total combined responsibility of all persons or entities whose responsibility proximately
        caused the death of Donald R. McIntyre, we find the percentage of responsibility attributable to each as
        follows: a) Rajesh Balagani, D.O. __% b) Ryschell Bolton, D.O __% c) OSF Healthcare System, St.
        Francis Medical Center __%.” The verdict form did not instruct the jurors not to allocate responsibility
        between Dr. Balagani and OSF if it found Dr. Balagani to be OSF’s apparent agent and found no other
        basis for imposing liability on OSF. Neither party objected to the verdict form as written.
                                                          54
        Construction & Restoration, Inc. v. West Bend Mutual Insurance Co., 322 Ill. App. 3d 181

        (2001) (remanding for new trial because jury’s verdict that defendant insurance company had

        breached its contract with the plaintiff, which entailed a finding that the parties had reached a

        meeting of the minds and formed a contract, was inconsistent with its verdict that the defendant

        had committed common law fraud by concealing material fact from the plaintiff, which would

        have precluded a meeting of the minds and the formation of a contract). As noted above, this is

        not such a case. In this case, the found jury OSF liable under agency principles and then

        erroneously allocated fault for purposes of awarding damages. Such legal errors do not create

        irreconcilably inconsistent verdicts necessitating a new trial as to liability. See generally Marek

        v. Stepkowski, 241 Ill. App. 3d 862, 870-71 (1992) (rejecting defendants’ argument that the

        jury’s verdict was unclear where the jury had found the two defendants liable as joint tortfeasors

        and then erroneously attempted to allocate damages equally between them); Mrowca v. Chicago

        Transit Authority, 317 Ill. App. 3d 784, 785-88 (2000) (affirming trial court’s denial of a new

        trial based on inconsistent verdicts despite the fact that the jury had improperly awarded the

        plaintiff damages after finding her 60% liable for the accident, in violation of section 2-1116 of

        the Code of Civil Procedure (735 ILCS 5/2-1116 (West 2000)).

¶ 125          In sum, the jury’s error in allocating fault did not create an irreconcilable conflict with its

        liability verdict against OSF because the liability verdict did not depend upon any finding that is

        contradicted by the erroneous allocation of fault. Such an irreconcilable conflict would exist if

        the jury had found that OSF was vicariously liable for Dr. Balagani’s negligence under agency

        principles while also finding that Dr. Balagani was not negligent. Johnson v. Kirkpatrick, 11 Ill.

        App. 2d 214, 216 (1956) (verdicts were inconsistent and new trial was required where jury found

        negligence on the part of a tractor’s owner but none on the part of the driver, even though the


                                                         55
        owner’s liability was premised entirely on the driver’s conduct under agency principles). An

        irreconcilable conflict would also arise if the jury had found OSF liable for Dr. Balagani’s

        negligence under agency principles but also found that Dr. Balagani was not acting as OSF’s

        agent. In each of these examples, the basis of the jury’s finding of liability against OSF would

        be directly contradicted by other findings made by the jury. That is not the case here.

¶ 126          Nevertheless, we reverse the jury’s erroneous allocation of damages and remand for a

        new trial to determine the proper allocation of fault and liability between Dr. Balagani/OSF and,

        if necessary, the Thomas defendants. We acknowledge that no party has asked us specifically to

        reverse the jury’s allocation of liability. 6 A reviewing court normally should not search the

        record for unargued and unbriefed reasons to reverse the circuit court’s judgment, especially

        when it would have the effect of transforming its role from jurist to advocate. West Bend Mutual

        Insurance Co. v. TRRS Corp., 2019 IL App (2d) 180934, ¶ 30; Marconi v. City of Joliet, 2013 IL

        App (3d) 110865, ¶ 18. However, “ ‘a reviewing court does not lack authority to address

        unbriefed issues and may do so * * * when a clear and obvious error exists in the trial court

        proceedings.’ ” Mid-Century Insurance Co. v. Founders Insurance Co., 404 Ill. App. 3d 961,

        966, quoting People v. Givens, 237 Ill. 2d 311, 325 (2010); see also Marconi, 2013 IL App (3d)

        110865, ¶ 18. Moreover, pursuant to Illinois Supreme Court Rule 366 (eff. Feb. 1, 1994), in

        exercising its responsibility for a just result, a reviewing court may decide a case on grounds not

        raised by the parties. West Bend Mutual Insurance Co., 2019 IL App (2d) 180934, ¶ 30;

        Marconi, 2013 IL App (3d) 110865, ¶ 16. In this case, the jury clearly erred by allocating 70%

        of the fault to Dr. Balagani and 30% of the fault to OSF, even though it found that OSF’s

               6
                  Angela, the Balagani defendants, and OSF each requested a new trial on damages, which we
        have denied. OSF has also asked for a new trial on liability based upon the allegedly inconsistent
        verdicts. However, OSF argues that, if we deny OSF’s requests for a new trial on liability and/or
        damages, we must uphold the jury’s erroneous allocation of liability because no party has appealed that
        allocation.
                                                          56
        liability was purely derivative and was predicated entirely upon Dr. Balagani’s negligent

        conduct. By reversing the jury’s erroneous allocation of fault between Dr. Balagani and OSF,

        we are not advocating for any party in this case, but simply correcting a clear and obvious error

        in the verdict that would otherwise produce a result that is contrary to well-established legal

        principles. OSF acknowledges that the jury’s allocation of fault was error because fault may not

        be compared between a principle and agent, thereby precluding any allocation of liability

        between them.

¶ 127          Moreover, remanding for a new trial on the allocation of liability may be a practical

        necessity in this case. We have reversed the trial court’s grant of summary judgment in favor of

        the Thomas defendants and remanded for a new trial to determine whether Dr. Thomas was

        negligent and liable in whole or part for Donald’s death. If the jury finds Dr. Thomas liable for

        any portion of the $1.6. million in damages that the jury awarded to Angela, damages would

        need to be reallocated between Dr. Balagani/OSF and the Thomas defendants. Accordingly, we

        reverse the jury’s allocation of fault and remand the matter for redetermination, which should

        occur after a judgment is entered as to the Thomas defendants’ liability.

¶ 128          We have considered the other arguments raised by the parties on appeal and find that they

        lack merit.

¶ 129                                            CONCLUSION

¶ 130          For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed

        in part, reversed in part, and remanded with directions.

¶ 131          Affirmed in part, reversed in part, and remanded with directions.




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