                                       2014 IL App (1st) 121593
                                             No. 1-12-1593
                                    Opinion filed September 12, 2014
                                                                       Sixth Division
     ______________________________________________________________________________

                                                  IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            FIRST DISTRICT

     ______________________________________________________________________________

     JANE DOE,                                   )  Appeal from the
                                                 )  Circuit Court of
        Plaintiff-Appellant,                     )  Cook County.
                                                 )
        v.                                       )
                                                 )
     THE UNIVERSITY OF CHICAGO MEDICAL )
     CENTER, a Not-For-Profit corporation,       )  No. 08 L 12783
     Formerly Known as The University of Chicago )
     Hospitals,                                  )
                                                 )
        Defendant-Appellee                        ) Honorable
                                                 )  Thomas L. Hogan,
     (James Richard Thistlethwaite, Jr., M.D.,   )  Judge Presiding.
                                                 )
        Defendant).                              )
     ______________________________________________________________________________

                   JUSTICE HALL delivered the judgment of the court, with opinion.

                   Justice Reyes concurred in the judgment and opinion.

                   Justice Lampkin specially concurred in the judgment, with opinion.

                                                  OPINION


¶1         The plaintiff, Jane Doe, filed a medical malpractice lawsuit against the defendants, the

        University of Chicago Medical Center (the UCMC) and James Richard Thistlethwaite, Jr.,

        M.D. Prior to trial, the plaintiff voluntarily dismissed Dr. Thistlethwaite from the lawsuit.
     No. 1-12-1593


        Following a jury trial, a judgment was entered in favor of the UCMC and against the

        plaintiff. The trial court denied the plaintiff's motion for a new trial. The plaintiff appeals.

¶2          On appeal, the plaintiff raises the following issues: (1) whether the jury instructions

        denied her a fair trial; (2) whether the jury verdict and the answers to the special

        interrogatories were against the manifest weight of the evidence; and (3) whether the

        cumulative effect of the instances of improper argument by the UCMC denied her a fair trial.

¶3          For the reasons set forth below, we reverse the judgment of the trial court and remand

        this case for a new trial.

¶4                                           BACKGROUND

¶5          In 1984, Congress established the Organ Procurement and Transplantation Network

        (OPTN), which provided for the creation of a network to be operated by a private not-for-

        profit organization under a federal contract. In 1986, the United Network for Organ Sharing

        (UNOS) was selected to be the contractor. The UNOS supervises organ procurement

        organizations (OPOs). The Gift of Hope in this case is an OPO.

¶6                   I. HIV Transmission in Organ/Tissue Transplantation Procedures

¶7          In 1994, the Center for Disease Control (CDC) published "Guidelines for Preventing

     Transmission of Human Immunodeficiency Virus [HIV] Through Transplantation of Human

     Tissue and Organs." The guidelines provided in pertinent part as follows:

                       "Regardless of their HIV antibody test results, persons who meet any of the

                criteria listed below should be excluded from donation of organs or tissues unless the

                risk to the recipient of not performing the transplant is deemed to be greater than the

                risk of HIV transmission and disease (e.g., emergent, life-threatening illness requiring

                transplantation when no other organs/tissues are available and no other lifesaving

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               therapies exist). In such a case, informed consent regarding the possibility of HIV

               transmission should be obtained from the recipient." Center for Disease Control,

               Martha F. Rogers, M.D., et al., Guidelines for Preventing Transmission of Human

               Immunodeficiency Virus Through Transplantation of Human Tissue and Organs

               (May 20, 1994), available at http: //cdc.gov. (hereinafter, CDC guidelines).

¶8         In the 1994 CDC guidelines, the behavior/history criteria included "[m]en who have had

        sex with another man in the preceding 5 years." Id. By1996, the CDC guidelines, which

        reflected the CDC's safety goals, were being interpreted in such a way so as to further

        compromise the already limited supply of human organs. Seeking to clarify the guidelines,

        the CDC stated:

               "[W]hen a potential organ donor tests HIV-antibody negative but has behavioral risk

               factors for HIV infection, the decision to accept an organ for transplantation should

               be made after consideration of the relevant risk factors for the individual recipient and

               with recognition of the very low incidence of HIV transmission in such situations.

               CDC recognizes the need for transplant centers, not organ procurement organizations,

               to deal with matters of patient consent in this setting.

                     In accepting an organ for transplantation, transplant teams should assess

               immediately the medical and social information available from the organ procurement

               organization regarding the potential donor. In the context of the current organ

               shortage, transplant teams are encouraged to accept and transplant organs from

               medically appropriate donors who test HIV-antibody negative but have behavioral

               risk criteria for HIV infection after the transplant teams have discussed the risks and

               benefits with potential recipients and/or their families." Clarification of Human


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                 Immunodeficiency Virus Screening Practices for Organ Donors, 61 Fed. Reg. 56,548,

                 56,549 (Nov.1, 1996).

¶9                                         II. Pretrial Proceedings

¶ 10        On November 17, 2008, the plaintiff filed a complaint against the UCMC and Dr.

          Thistlethwaite alleging medical negligence relating to a kidney transplant she underwent in

          2007. In count I of her amended complaint, the plaintiff alleged institutional negligence on

          the part of the UCMC in that she was not informed of the high-risk behavior of the donor of

          the kidney she received. In count II, the plaintiff alleged that Dr. Thistlethwaite was an

          employee or agent of the UCMC and that he failed to inform the plaintiff of the risks of

          accepting a kidney from a high-risk donor. Prior to trial, the plaintiff voluntarily dismissed

          count I of the amended complaint, and she dismissed Dr. Thistlethwaite as a defendant from

          count II of the amended complaint. The case was tried on count II and only against the

          UCMC.

¶ 11                                            III. Jury Trial

¶ 12         The disputed issue at trial was whether the UCMC complied with the standard of care

          governing informed consent in organ transplant cases. The testimony pertinent to that issue

          is set forth below.

¶ 13                                            A. Testimony

¶ 14                                           1. The Plaintiff

¶ 15         On January 7, 2007, the plaintiff received a telephone call from nurse Katrina Harmon,

          the UCMC's kidney transplant coordinator advising her of a potential kidney match. Shortly

          before 10 p.m., the plaintiff received another call from nurse Harmon, informing her that the

          kidney matched and instructing her to proceed to the UCMC to be admitted. The transplant

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       No. 1-12-1593


          was performed by Dr. Thistlethwaite on January 9, 2007, and the plaintiff was discharged

          from the UCMC on January 14, 2007.

¶ 16         On November 1, 2007, the plaintiff received a call from Dr. Robert Harland requesting

          that she come to the UCMC to be tested for HIV and hepatitis C. At the hospital, she met

          with Dr. Harland and Dr. Thistlethwaite. Upon learning that the kidney donor was a 30-year-

          old male homosexual, the plaintiff stated that, had she known the donor was homosexual, she

          would have refused the kidney. Dr. Thistlethwaite stated that he did not know the donor was

          homosexual. When the plaintiff asked why she had not been informed, Dr. Thistlethwaite

          responded that he was unaware that she had not received that information.

¶ 17         The plaintiff had declined two previous kidney transplants where the donors' medical

          histories indicated unsafe sexual practices, drug use or other lifestyle choices that may have

          impacted their health. At the time of the 2007 transplant, she was doing well on dialysis.

          The plaintiff was unaware that she was 38 on the transplant list at the time of the 2007

          transplant. Subsequently, the plaintiff was diagnosed with HIV and hepatitis C.

¶ 18         The plaintiff was treated at the UCMC in December 2007, and January 2008. By April

          2008, the plaintiff's body was rejecting the donated kidney, and she went back on dialysis. In

          July 2008, the kidney was removed. From that time on, the plaintiff had less energy and

          suffered from a lack of interest in life. While the plaintiff hoped to receive another kidney,

          she was concerned that she would receive one that compromised the medication she took for

          HIV and hepatitis C.

¶ 19         The plaintiff would have refused a kidney from a homosexual donor even if she had

          known that in 20 years, HIV had never been transmitted via a kidney transplant where the

          donor tested negative for HIV. She would not have accepted a kidney from such a donor


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          even knowing that her risk of dying in the next year while on dialysis was 1 in 5 as opposed

          to 1 in 11,000, if she accepted the kidney. However, the plaintiff then acknowledged that if

          she knew her chances of dying while on dialysis were much greater than the risk of

          contracting HIV from the donor kidney, she would have accepted the kidney.

¶ 20         When the plaintiff entered the UCMC's transplant program in 2000, she received an

          orientation from both a nurse coordinator and a surgeon and understood what high-risk donor

          meant. In 2003 and 2005, when a kidney was available, the plaintiff received the information

          about the lifestyles of the donors from Kathy Davis, a nurse coordinator at the UCMC.

          However, in 2007, she did not receive any donor-lifestyle information from nurse Harmon.

          The plaintiff did not ask nurse Harmon about the donor's lifestyle because on other occasions

          the nurse coordinator had provided the information to her.

¶ 21                             2. James Richard Thistlethwaite, Jr., M.D.

¶ 22         Dr. Thistlethwaite was employed by the UCMC as a transplant surgeon. He served on

          several medical boards and had been a councilor with the UNOS. The doctor had published

          over 200 articles. He co-authored a 2006 article entitled, "Shared decision making in

          deceased-donor transplantation." Dr. Thistlethwaite agreed that the goal of informed consent

          included disclosure of relevant information to and comprehension by the patient. He further

          agreed that the protocol at the UCMC in 2007 was that potential organ recipients should be

          informed of the high-risk status of the donor and that the donor in this case was high risk.

¶ 23         Dr. Thistlethwaite explained that "informed consent" was a process that continues over

          the entire time the patient interacts with the transplant team. While the process of informed

          consent was under the direction of the surgeon performing the procedure, it was the

          customary practice at the UCMC for the nurse coordinator to inform the potential recipient


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          that the donor was high risk. The doctor acknowledged that there was no documentation in

          the medical records that the plaintiff was advised of the donor's high-risk status. However,

          the doctor was certain that at the time he performed the plaintiff's transplant surgery, he was

          aware that the donor was CDC high risk.

¶ 24         In 1996, Dr. Thistlethwaite was active with the Gift of Hope. After the CDC issued its

          1994 guidelines and 1996 amended guidelines, the Gift of Hope adopted the CDC guidelines

          for providing information as to the high-risk status of donors to the hospitals to which it

          supplied organs. In 2004, the OPTN adopted a rule requiring OPO's to supply that

          information to hospitals. However, the regulation did not require that the information be

          given to the potential recipient of a donor organ. Dr. Thistlethwaite explained that "if the

          UNOS had wanted to, they could have easily said you have to inform patients, and then it

          would have been a regulation. You have to inform patients if it's a high-risk donor. They

          chose not to do that." Even so, Dr. Thistlethwaite maintained that it was the practice at the

          UCMC that the patient be informed of the high-risk status of the donor and as the surgeon it

          was his responsibility to make sure that the patient received the information. In 2007, the

          doctor was not required to know whether a patient had previously turned down a kidney; in

          retrospect, he wished he had known it in this case.

¶ 25         While Dr. Thistlethwaite stated that all the doctors on the transplant team followed the

          same procedure, he did not dispute that Dr. Harland, who had been part of the UCMC's

          transplant team, believed that, as the surgeon, he should have the informed-consent

          conversation with the patient. Dr. Thistlethwaite was unaware that Dr. Harland recorded in

          the progress notes that he had the high-risk donor conversation with his patients. There was

          no requirement that the conversation be noted in the medical record, and Dr. Thistlethwaite


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          did not believe that having the conversation at the last minute with the patient would be

          helpful in obtaining an informed consent.

¶ 26         According to Dr. Thistlethwaite, there was no universal standard of care applicable to the

          informed consent procedure. The doctor believed that Dr. Harland's practice and his own

          practice with regard to obtaining informed consents in transplant surgery were both within

          the accepted standard of care.

¶ 27                                         3. Kathy Davis, R.N.

¶ 28         At the time of the trial, nurse Davis was employed by the UCMC as the living donor

          nurse coordinator. She met the plaintiff in 2000, when nurse Davis was part of the diseased

          kidney donor transplant department.

¶ 29         In 2007, the UCMC had procedures governing informed consent where the organ donor

          was high risk. As the nurse coordinator, when there was an available kidney, nurse Davis

          would inform the patient that the donor was high risk. Ultimately, it would be the

          responsibility of the doctors to go over the risks and benefits of a high-risk donor; then the

          nurse would review the information with the patient. In January 2007, the doctors did not

          delegate the responsibility of obtaining the informed consent from the patient. The nurse

          coordinator would provide the factual information to the patient and then inform the doctor,

          who would explain the risks involved to the patient. A summary sheet was used to record

          whether a patient had accepted or declined a kidney. The summary sheet recording a refusal

          was not necessarily kept. While the sheets were accessible to the transplant team, there was

          no requirement to keep them and, if kept, there was no definite timeframe for their disposal.

          The summary sheet was neither an official record nor was it part of the patient's medical

          record.


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       No. 1-12-1593


¶ 30          According to nurse Davis, once she was advised of an available kidney, she would

          contact the transplant doctor. If the doctor determined it was a suitable candidate, it was her

          job to contact the patient and provide the information as to the age and lifestyle of the donor.

          All transplant doctors delegated that job to the nurse coordinators.

¶ 31                                        4. Katrina Harmon, R.N.

¶ 32          Nurse Harmon began working at the UCMC in 2003. From 1999 to 2003, she had

          worked for Gift of Hope, as an organ recovery coordinator. At Gift of Hope, nurse Harmon

          was responsible for responding to potential organ donor cases from referring hospitals. Her

          duties included reviewing charts and obtaining consents for organ donations from families.

          Once the consents were obtained, she coordinated the recovery of livers, hearts and lungs for

          transplantation. From 2003 to the present, she had been a pre-kidney and pancreas transplant

          coordinator at the UCMC.

¶ 33          Nurse Harmon's first meeting with the plaintiff took place on January 10, 2007, the day

          after the transplant surgery. She could not remember having a face-to-face, one-on-one

          discussion with the plaintiff prior to that date.

¶ 34          On January 8, 2007, a kidney placer from Gift of Hope informed nurse Harmon that a

          kidney was available for transplant. Although she could not recall the specifics of the

          conversation, in accordance with her usual procedure, she would have received the donor's

          chart and a list of potential recipients. Before speaking to the doctor on call, nurse Harmon

          would review the donor's chart, which included the donor's social history and clinical

          information. She would also review the potential recipient's summary sheet containing the

          potential recipient's medical and insurance information. The summary sheet did not contain

          a history of prior refusal of organs. That information was not available to the nurses or


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          doctors at the UCMC at the time of a kidney offer; the patient would have to be asked for

          that information. Nurse Harmon did not ask the plaintiff if she had refused a prior kidney

          offer, and the plaintiff did not volunteer that information.

¶ 35         On January 8, 2007, after reviewing the donor's chart, nurse Harmon noted that the donor

          was a homosexual and that he had recently lost eight pounds. Nurse Harmon then contacted

          Dr. Thistlethwaite. Although she did not recall the specific conversation, nurse Harmon

          would have provided him with the medical and social history of the donor. Dr.

          Thistlethwaite was interested in the kidney, and nurse Harmon informed the Gift of Hope to

          begin compatibility tests. According to nurse Harmon, the transplant procedure should be

          done as soon as possible.

¶ 36         On January 8, 2007, nurse Harmon called the plaintiff at 5:14 p.m. She remembered

          speaking with the plaintiff but did not have a specific recollection of the conversation.

          Because she provided the same type of information to each patient, nurse Harmon would

          have provided the plaintiff with the following information: the specifics of the donor's death;

          the results of any infectious disease testing, in this case, the donor tested negative for HIV

          and hepatitis B and C; the donor was a homosexual and therefore classified as a high-risk

          donor; and she had reviewed the case with Dr. Thistlethwaite. Upon receiving the

          information, the potential recipient would state whether he or she were interested or not

          interested in proceeding with the transplant. Nurse Harmon did remember that the plaintiff

          wished to discuss the offer with her family and call the nurse back. The fact that the plaintiff

          wanted time to think about the offer and discuss it with her family was unusual. While her

          cell phone showed three more calls from the plaintiff, nurse Harmon did not recall what was




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          said during those calls. The UCMC did not require documentation of telephone calls. The

          plaintiff arrived at the UCMC at 11 p.m.

¶ 37         According to nurse Harmon, in 2007, securing the informed consent from the patient was

          the responsibility of the transplant surgeon, whether or not the donor was high risk. It was

          nurse Harmon's responsibility to provide the CDC high-risk information to the potential

          recipient. The plaintiff's summary sheet indicated that she would accept an expanded criteria

          donor, i.e., a less than standard kidney. There was nothing on the plaintiff's summary sheet

          as to whether she would or would not accept a high-risk donor or that she had previously

          refused a high-risk donor. It was nurse Harmon's custom and practice to inform a potential

          recipient that the donor was a homosexual. It was also Dr. Thistlethwaite's practice to have

          her inform the patient that the donor was a homosexual.

¶ 38                                      5. Raymond Pollak, M.D.

¶ 39         Dr. Pollak testified as an expert witness for the plaintiff on informed consent in transplant

          cases. His medical training and experience were concentrated in the area of transplants. The

          doctor served as chief of the transplant service at both the University of Illinois at Chicago

          and the University of Illinois at Peoria. He had performed over 800 kidney transplants; the

          last one was in 2001. Dr. Pollak was affiliated with the Gift of Hope, serving on its

          governing board as well as its medical advisory committee, which set the medical policy for

          the organ bank. He also served on the medical and professional standards board of directors

          of the UNOS.

¶ 40         Contrary to nurse Harmon's testimony, Dr. Pollak maintained that the Gift of Hope would

          not have proceeded with the testing unless the plaintiff had accepted the kidney. Without a

          definite acceptance, the Gift of Hope was free to offer the kidney elsewhere.


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¶ 41         Dr. Pollak was given a hypothetical in which he was to assume the following facts: both

          Dr. Thistlethwaite and nurse Harmon were aware that the donor was high risk, but neither of

          them supplied that information to the plaintiff; nurse Harmon did not supply the high-risk

          status of the donor to the plaintiff, and Dr. Thistlethwaite was unaware that the plaintiff

          lacked this information prior to the transplant surgery; and Dr. Thistlethwaite was unaware

          that the plaintiff had twice rejected kidneys from high-risk donors. In response to the

          hypothetical , Dr. Pollak opined as follows:

                 "[A] reasonable physician communicating effectively with his patient should have

                 provided that informed consent based on his own standard of care, the standard of

                 practice that was available through the guidelines as issued by the CDC and the

                 guidelines within The University of Chicago's health system, which required an

                 informed consent process from the treating surgeon."

¶ 42         According to Dr. Pollak, under the local and national standard adopted by the transplant

          surgeons in Illinois and nationwide, an offer of a high-risk CDC donor kidney required

          specific verbal or written informed consent. Dr. Pollak maintained that the CDC guidelines

          governed the standard of care in transplant cases. The doctor acknowledged that there was

          no federal law placing the CDC in charge of transplants. The OPTN required OPOs, such as

          the Gift of Hope, to communicate the donor history to the institutions receiving organs.

          While Dr. Pollak believed it was implicit in the requirement that the doctor provide that

          information to the patient, he agreed the decision to do so was made by the doctor, in his or

          her professional judgment; the OPTN did not require it.




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¶ 43         Dr. Pollak had no criticism of Dr. Thistlethwaite's practice of having the nurse inform the

          patient of the donor's high-risk status. In December 2007, after the plaintiff's transplant

          surgery, the OPTN required that the patient be informed of the high-risk status of the donor.

¶ 44                                      6. Robert Harland, M.D.

¶ 45         Dr. Harland's deposition testimony was read into the record. From 2001 to 2009, Dr.

          Harland was the director of the kidney and pancreas transplant program at the UCMC. He

          did not recall whether, by 2001, the UCMC had developed any policies or procedures in

          response to the CDC guidelines. As chief of the transplant section, Dr. Michael Millis would

          have been responsible for developing those policies and procedures. Dr. Harland's role

          would have been to facilitate the development or the implementation of procedures for

          kidney and pancreas transplants.

¶ 46         In 2007, if the donor was high risk because of his social history, Dr. Harland believed

          that the patient would be given that information, but whether the patient received the

          information might not have been documented in writing. If it was documented, it would be

          done by the surgeon or the resident (doctor), either on the informed-consent form, in a

          progress note or in a dictated note. Only the patient and the surgeon would be informed of

          the high-risk status of the donor. In 2007, a transplant-specific consent form had not yet been

          finalized. Dr. Harland would use the general consent form to record that the patient had been

          informed that the donor was high risk; normally, he documented it on the progress note.

¶ 47         It was Dr. Harland's practice to inform the patient prior to surgery of the possibility of the

          transmission of a viral disease, even if the donor tested negative. The doctor did not recall

          whether in 2007 the UCMC had any procedures in place requiring that the high-risk-donor

          information be given to the patient. It would have been in keeping with the UCMC's practice


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          that nurse Harmon would convey the information to the plaintiff that the donor was

          homosexual and high risk.

¶ 48         Dr. Harland agreed that prior to obtaining an informed consent, the surgeon must first

          decide whether the risk of transmission of a viral disease was outweighed by the benefits of

          the transplant. Due to other medical conditions, the plaintiff had been on and off the organ

          list, had end-stage renal disease and was using a catheter for dialysis access. The quality of

          the donated kidney was good and, provided there was informed consent, Dr. Harland

          believed that the transplant was the best possible outcome for the plaintiff.

¶ 49                                     7. Dorry Segev, M.D., PhD

¶ 50         Dr. Segev was an expert witness for the UCMC on informed consent in transplant cases.

          As part of his surgery residency at Johns Hopkins (Hopkins), he spent three years at Harvard

          College doing research in the area of molecular biology. After completing his residency at

          Hopkins, he did a clinical fellowship in transplant surgery there. Dr. Segev then obtained a

          master's degree in biostatistics and a PhD in clinical investigation. The doctor was an

          associate professor in the department of surgery at Hopkins. He was appointed to the

          epidemiology department in the school of public health at Hopkins where research was

          conducted to develop and implement national polices and standards and to determine if they

          worked. Dr. Segev had published over 100 articles, 15 to 20 of them dealing with high-risk

          organ donors.

¶ 51         Prior to the plaintiff's 2007 kidney transplant, the only occasion of HIV transmission

          resulting from a transplant occurred in 1986. At that time, doctors did not know what HIV

          was. By 2007, the standard of care required the use of an enzyme-linked immunosorbent

          assay (the ELISA) test to determine the existence of antibodies indicating an infection.


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          Because the body required time to develop the antibodies, there was a window of one to three

          months between the time of exposure to the virus and testing positive for it. While there was

          a risk to the patient from the infection, the patient had a much higher risk from dying from

          organ failure. Since 1986, 425,000 transplants had been done. Prior to the plaintiff's case,

          there was zero risk of infection. In addition, until the late 1990s, hepatitis C was unknown to

          doctors. In describing the risk to the plaintiff by staying on dialysis versus being infected

          with HIV from a transplanted kidney from a donor who tested negative, Dr. Segev stated:

                       "Her risk from death from staying on dialysis was probably, based on our

                 estimates then, a million times higher than her risk of death - - her risk of getting HIV

                 or her risk of death from getting HIV if she had gotten it from the transplant.

                 Probably a million times higher."

¶ 52         Dr. Segev opined that Dr. Thistlethwaite's conduct in obtaining an informed consent from

          the plaintiff was within the standard of care. The transplant team at the UCMC functioned

          similarly to the one at Hopkins, where Dr. Segev performed transplants every week. At

          Hopkins, nurse coordinators were part of the transplant team. Because the work was done as

          a team, the surgeon relied on other team members to perform necessary functions. Dr. Segev

          explained that Dr. Thistlethwaite's practice of delegating to a nurse coordinator, such as nurse

          Harmon, the responsibility to provide the patient with all the details about the donor was

          within the standard of care. Dr. Segev stated:

                       "It was certainly within the standard of care. [Dr. Thistlethwaite is] a sort of

                 leader in our field of ethics and informed consent, and he was ahead of all of us in

                 terms of what he did.




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                       In fact, he thought about it to the extent where he felt that if he told the patient

                 about these risk factors, then the patient would be coerced into thinking, well, if he

                 thinks it's fine, then I think it's fine.

                       And so he sort of separated the physician who was thinking about this from the

                 patient thinking about it by having the nurse coordinator do that, which is very

                 forward thinking and, you know, was well beyond anything any of us were doing."

¶ 53         Dr. Segev maintained that it was within the standard of care for the surgeon to delegate to

          the resident the signing of the informed-consent form by the patient. Due to the number of

          team members and the various activities involved in a transplant procedure, it was not

          unusual for Dr. Thistlethwaite not to recall talking to the plaintiff. Dr. Thistlethwaite's

          conduct was still within the standard of care

¶ 54         Dr. Segev further opined that it was within the standard of care not to tell the patient that

          the organ donor was a homosexual. In the context of implied consent, no one was discussing

          HIV; there were other infections, such as West Nile virus, that were of more concern. Dr.

          Segev explained that in January 2007, where the 37-year-old donor was homosexual, with a

          negative ELSA test, the standard of care for the informed consent process required the doctor

          to inform the patient of the important aspects of the donor so that the patient could make an

          educated decision as to whether to accept the organ. The areas of most concern were the

          facts impacting the length of time the kidney would last. In this case, other than the

          homosexual lifestyle of the donor, it was a perfect kidney. Dr. Segev maintained that it was

          an amazing opportunity for anyone to receive that kidney because, "most people who die in

          this country are not 35 and healthy." Dr. Segev further maintained that neither the HIV




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       No. 1-12-1593


          infection and its treatment nor the hepatitis C infection caused the plaintiff's body to reject

          the donated kidney.

¶ 55         Dr. Segev acknowledged that the CDC guidelines recommended against such a transplant

          unless there was a survival benefit to it. However, the doctor explained that CDC did not set

          policy for transplants, only guidelines and recommendations. Policy was set by the OPTN.

          Prior to 2007, OPTN did not have a policy requiring surgeons to inform patients that the

          donor had a homosexual lifestyle and tested negative for HIV; it was left up to the surgeon as

          to whether the information would be provided. At the time the CDC guidelines were written

          and then clarified, there were no medications to control HIV. HIV is considered a chronic

          disease, controlled by medication. The estimated life expectancy of a person with HIV was

          the same as a person's life expectancy without it. Transplants of livers and kidneys from

          donors with HIV were done now because HIV was so well controlled.

¶ 56         Dr. Segev acknowledged that a patient who received a kidney from an infected donor

          would most likely be infected with HIV. He further acknowledged writing that a patient who

          is at the top of the transplant list and likely to receive a noninfected organ very soon was

          better off refusing the infected or possibly infected kidney. The doctor noted that the

          plaintiff was receiving dialysis through a catheter in her neck. Because of the risk of

          infection, the death rate in such cases was the highest of the three methods of dialysis. The

          plaintiff's position on the list for a kidney transplant did not determine how soon a kidney

          match would be made for her.

¶ 57         Dr. Segev opined that it was within the standard of care for the transplant surgeon not to

          inform a potential recipient of the donor's high-risk lifestyle or require the surgeon to know




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          that the potential recipient had refused prior kidneys. Subsequent to the plaintiff's case, the

          policies were modified to require that patients be informed that a donor is high risk.

¶ 58                                    8. James Michael Millis, M.D.

¶ 59         Dr. Millis had been with the UCMC since 1994. He was professor of surgery at the

          University of Chicago. He served as chief of the transplantation section and director of the

          transplant center at the UCMC. After graduating from the University of Tennessee medical

          school, Dr. Millis did his general surgical training and fellowship in transplant surgery at the

          University of California at Los Angeles. The doctor had authored books and articles on

          transplants. He served on editorial boards and reviewed publications. He had lectured and

          given presentations on the subject of transplantation in Europe and Asia.

¶ 60         In January 2007, the national and local standards of care with regard to advising patients

          of the CDC high-risk status of a prospective donor were the same. The standard did not

          require that the patient be informed of the CDC high-risk status of a particular donor or that

          the high-risk status be documented. Dr. Millis explained that the risk was so small that it was

          not an important piece of information for the patient. The UCMC did not have any

          procedure or policy requirement that the CDC high-risk information be conveyed to the

          patient or documented in the patient's chart. If a surgeon wished to discuss that information

          with the patient, the surgeon made that decision; the standard of care did not require it.

          There was no requirement to document a refusal of a donated organ because the choice to

          turn down a donated organ could be influenced by events in the patient's life. A patient may

          turn down an organ from a high-risk donor one time and accept it another time.

¶ 61                                         B. Jury Instructions




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¶ 62          Over the objection of the plaintiff, the trial court gave the UCMC's jury instruction No.

          14, a modified version of Illinois Pattern Jury Instructions, Civil, No. 50.01 (2011)

          (hereinafter, IPI Civil (2011)), under which the jury could find the UCMC liable if it found

          Dr. Thistlethwaite liable for the plaintiff's injuries. The jury also received the plaintiff's jury

          instruction No. 10 (IPI Civil (2011) No. 50.02), identifying both Dr. Thistlethwaite and nurse

          Harmon as agents of the UCMC and providing that the acts or omissions of its agents were

          the acts or omissions of the UCMC.

¶ 63                                             C. Jury Verdict

¶ 64          The jury returned a verdict finding for the UCMC and against the plaintiff. In answer to

          the UCMC's two special interrogatories, the jury found that the negligence of the UCMC's

          agent, Dr. Thistlethwaite, was not a proximate cause of the injuries claimed by the plaintiff,

          and Dr. Thistlethwaite was not negligent in the manner in which he provided informed

          consent to the plaintiff.

¶ 65                                        D. Posttrial Proceedings

¶ 66          The plaintiff filed a motion for a new trial alleging, inter alia, a claim of error in the

          instructions given to the jury. In addressing the claim of error, the trial court acknowledged

          that, standing alone, the UCMC's modified instruction was not an accurate statement of the

          law, in light of the facts of this case. However, the court reasoned that, when considered

          together, the remaining instructions allowed the jury to consider whether the UCMC was

          responsible to the plaintiff for the conduct of its agents, Dr. Thistlethwaite and/or nurse

          Harmon. The court further found that giving both the UCMC's No. 14, the modified IPI

          Civil (2011) No. 50.01 and the plaintiff's No. 10, IPI Civil (2011) No. 50.02, remedied the




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          plaintiff's concern that the jury might believe that the plaintiff should have been but was not

          told about the donor by someone other than Dr. Thistlethwaite.

¶ 67          After finding that none of the other grounds alleged in the motion required that the

          plaintiff receive a new trial, the trial court denied the motion.

¶ 68          This appeal followed.

¶ 69                                              ANALYSIS

¶ 70          The plaintiff contends that the trial court erred when it gave the UCMC's instruction No.

          14, a modified version of IPI Civil (2011) No. 50.01, to the jury. She argues that the error

          denied her a fair trial.

¶ 71                                         I. Standard of Review

¶ 72          "The decision to give or deny an instruction is within the trial court's discretion. The

          standard for determining an abuse of discretion is whether, taken as a whole, the instructions

          are sufficiently clear so as not to mislead and whether they fairly and correctly state the law."

          Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002). Whether an instruction accurately

          conveys the applicable law is reviewed de novo. Barth v. State Farm Fire & Casualty Co.,

          228 Ill. 2d 163, 170 (2008).

¶ 73                                             II. Discussion

¶ 74          Unmodified, IPI Civil (2011) No. 50.01 states as follows:

                       "The defendants are sued as principal and agent. The defendant _____ is the

                  principal and the defendant _______ is [his] [its] agent. If you find that the defendant

                  [agent] is liable, then you must find that the defendant [principal] is also liable.

                  However, if you find that [the agent] is not liable, then you must find that [the

                  principal] is not liable." (Emphasis added.)

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¶ 75          The jury received the UCMC's instruction No.14, a modified version of IPI Civil (2011)

          No. 50.01. The modified version stated as follows:

                       "The defendant University of Chicago Medical Center is the principal and Dr.

                  Thistlethwaite is its agent. If you find that Dr. Thistlethwaite is liable, then you must

                  find that the defendant University of Chicago Medical Center is liable. However, if

                  you find that Dr. Thistlethwaite is not liable, then you must find that University of

                  Chicago Medical Center is not liable."

¶ 76             The jury also received the plaintiff's instruction No. 10 (IPI Civil (2011) No. 50.02).

          The plaintiff's instruction stated:

                       "J. Richard Thistlethwaite, M.D. and Katrina Harmon were agents of the

                  defendant University of Chicago Medical Center at and before the time of this

                  occurrence. Therefore, any act or omission of the agent at that time was in law the

                  act or omission of the defendant University of Chicago Medical Center."

¶ 77          "The function of jury instructions is to convey to the jury the correct principles of law

          applicable to the submitted evidence and, as a result, jury instructions must state the law

          fairly and distinctly and must not mislead the jury or prejudice a party." (Emphasis omitted.)

          Dillon, 199 Ill. 2d at 507. The parties are entitled to have the jury instructed on the issues

          presented, the principles of law to be applied and the necessary facts to be proved to support

          the jury's verdict. Dillon, 199 Ill. 2d at 505.

¶ 78          The plaintiff maintains that it was error to give the UCMC's modified instruction. She

          asserts that the instruction was not an accurate statement of the law applicable in this case

          and, in any event, should not have been given where the jury also received IPI Civil (2011)

          No. 50.02.


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¶ 79          We agree that in the context of the facts of this case, the UCMC's instruction No. 14 was

          not an accurate statement of the law. IPI Civil (2011) No. 50.01 is applicable to a case in

          which both the principal and the agent are sued, and agency is not at issue. The plaintiff's

          instruction No. 10 (IPI Civil (2011) No. 50.02) is applicable where only the principal is sued,

          and there is no issue as to agency. While agency was not contested in this case, nurse

          Harmon was never a defendant in this lawsuit, and Dr. Thistlethwaite was no longer a

          defendant at the time of trial. Therefore, the plaintiff's instruction No. 10 was the proper

          instruction for the jury to receive in this case.

¶ 80          Where IPI instructions accurately state the law applicable in a case and adequately charge

          the jury, they should be used exclusively. Colls v. City of Chicago, 212 Ill. App. 3d 904, 930

          (1991). Modified or unmodified, the UCMC's instruction No. 14 was not a correct statement

          of the law applicable in this case. Therefore, it was error to give the UCMC's instruction No.

          14 to the jury.

¶ 81          While acknowledging that the UCMC's instruction No. 14 did not state the applicable

          law, the trial court denied the plaintiff a new trial on that ground. The court reasoned that the

          remaining jury instructions allowed the jury to find the actions of either Dr. Thistlethwaite or

          nurse Harmon or both responsible for the plaintiff's injury. Since the doctor and the nurse

          were agents of the UCMC, the court concluded that the jury could find the UCMC

          responsible for their actions which led to the plaintiff's injury.

¶ 82          The plaintiff maintains that the remaining instruction could not cure the error in giving

          the jury the UCMC's instruction No. 14. The plaintiff's theory of the UCMC's responsibility

          for her injury was based on the doctrine of respondeat superior. At trial, Dr. Thistlethwaite

          testified that he was responsible for obtaining the informed consent from the patient. Nurse


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          Harmon testified that, as the nurse coordinator, it was her responsibility to inform the

          potential recipient of a donor kidney that the donor was high risk.

¶ 83         A party is entitled to have the jury instructed on his or her theory of the case, and the

          failure to do so may require a new trial. Ellig v. Delnor Community Hospital, 237 Ill. App.

          3d 396, 405 (1992). In support of her theory of liability, the plaintiff tendered her instruction

          No.10, which identified both Dr. Thistlethwaite and nurse Harmon as agents of the UCMC

          and for whose conduct the UCMC was responsible. However, the UCMC's instruction No.

          14 permitted the jury to find the UCMC responsible only if Dr. Thistlethwaite was

          responsible.

¶ 84         In People v. Jenkins, 69 Ill. 2d 61 (1977), the supreme court ordered a new trial for the

          defendant where two of the instructions given to the jury contradicted each other on the

          essential elements of the offence. Jenkins, 69 Ill. 2d at 65. The court held that contradictory

          instructions on an essential element could not be cured by another instruction that was correct

          because the jury would be forced to determine which instruction was correct. Jenkins, 69 Ill.

          2d at 66.

¶ 85         The plaintiff argues that the modified instruction did not allow the jury to hold the

          UCMC responsible for the conduct of nurse Harmon. We agree. Under the facts of this case,

          the plaintiff's instruction No. 10, instructed the jury that UCMC was responsible for nurse

          Harmon's acts as well as those of Dr. Thistlethwaite. The UCMC's instruction No. 14 misled

          the jury into believing that it could consider only the acts of Dr. Thistlethwaite in

          determining if the UCMC could be held responsible for the plaintiff's injury. Like Jenkins,

          the fact that the jury received the plaintiff's instruction No. 10, which was an accurate

          statement of the law applicable in this case, did not cure the error of giving the jury an


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          inaccurate statement of the law. Like Jenkins, the jury in this case was required to choose

          between an accurate instruction which applied to the facts of this case and an inaccurate

          instruction which did not, the error was not cured and requires that the plaintiff receive a new

          trial.

¶ 86          The court in Jenkins acknowledged that while the other instructions might cure the error

          caused by an inaccurate instruction, other instructions cannot cure the error where the

          instructions are in direct conflict. Jenkins, 69 Ill. 2d at 66. Contrary to the trial court's

          finding, the remaining jury instructions did not cure the error caused by giving the jury the

          UCMC's No. 14 instruction. The sole reference to nurse Harmon in the instructions was the

          plaintiff's instruction No. 10. The other instructions given to the jury on professional

          negligence, the issues, and the burden of proof all referred to "a reasonably careful transplant

          surgeon." If the jury followed all of the instructions, it could not find the UCMC liable for

          the acts or omissions of nurse Harmon.

¶ 87          A faulty jury instruction does not require reversal unless the error results in serious

          prejudice to the party's right to a fair trial. Ramirez v. FCL Builders, Inc., 2014 IL App (1st)

          123663, ¶ 164. In determining whether a party has been prejudiced, we consider whether the

          instructions, taken as a whole, were sufficiently clear so as not to mislead the jury. Ellig, 237

          Ill. App. 3d at 408. Even if the plaintiff was prejudiced by the use of the UCMC's instruction

          No.14, there must be a reasonable basis supporting the conclusion that, but for the error, the

          verdict might have been different. Lambie v. Schneider, 305 Ill. App. 3d 421, 429-30 (1999).

¶ 88          The trial court erred in giving the jury the UCMC's instruction No. 14. The instruction

          was an inaccurate statement of the applicable law and the error in giving it to the jury was not

          remedied by giving the jury the plaintiff's instruction No. 10. Giving the UCMC's instruction


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          No. 14 when the jury was also given the plaintiff's instruction No. 10 served to mislead the

          jury. The error was not remedied by the remaining instructions because they did not allow

          the jury to consider the actions of nurse Harmon in determining the responsibility of the

          UCMC for the plaintiff's injury. The error resulted in serious prejudice to the plaintiff in that

          it denied her the right to have the jury instructed on her theory of the case. In the absence of

          the UCMC's instruction No. 14, the jury could have found the UCMC responsible for the

          plaintiff's injury based on the actions of either or both Dr. Thistlethwaite and nurse Harmon.

¶ 89          The error in this case caused serious prejudice to the plaintiff and, but for the error, the

          jury might have reached a different verdict. Therefore, the plaintiff is entitled to a new trial.

          Deciding this case as we do, we need not address the remaining issues raised by the plaintiff.

¶ 90                                            CONCLUSION

¶ 91          The judgment of the trial court is reversed, and the cause is remanded for a new trial.

¶ 92          Reversed and remanded.

¶ 93          JUSTICE LAMPKIN, specially concurring:

¶ 94          I join the panel's opinion, but write separately to note additional reasons that support the

          conclusion to vacate the judgment in favor of UCMC and against plaintiff and remand the

          matter for a new trial.

¶ 95          "The decision to give or deny a jury instruction is within the discretion of the circuit

          court, and a new trial should be granted only if a party's right to a fair trial has been

          prejudiced seriously." McCarthy v. Kunicki, 355 Ill. App. 3d 957, 970 (2005). The court has

          a duty to give the jury proper guidance and not generate confusion, and contradictory

          instructions prevent the jury from following the instructions of the trial judge. People v.

          Jenkins, 69 Ill. 2d 61, 66 (1977). The trial court's decision to give the jury both UCMC's

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          instruction No. 14 (a modified version of IPI Civil (2011) No. 50.01) and plaintiff's

          instruction No. 10 (IPI Civil (2011) No. 50.02), was reversible error. Each instruction was

          self-contained and differed from the other so as to be inconsistent and contradictory if used

          together. "Where the instructions are contradictory the jury is put in the position of having to

          select the proper instruction"—a function that belongs exclusively to the trial court. Jenkins,

          69 Ill. 2d at 67.

¶ 96          "It is well established that the giving of contradictory instructions on an essential element

          in the case is prejudicial error, and is not cured by the fact that another instruction is correct."

          Id. at 66. "Generally, if a verdict is tainted by an erroneous instruction then the entire verdict

          is called into question, unless the instruction pertains to the issue of damages." Graham v.

          Northwestern Memorial Hospital, 2012 IL App (1st) 102609, ¶ 42.

¶ 97          Here, "[a] retrial is required because the jury was inadequately instructed and was,

          therefore, unable to apply the correct legal principles to the submitted evidence."

          Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 568 (2008). UCMC's instruction No. 14 was

          inapplicable on its face, did not accurately state the law in the context of this case, was

          misleading and confusing for the jury, and deprived plaintiff of the strategy she was pursuing

          of trying the case against the principal only.

¶ 98          Plaintiff voluntarily dismissed Dr. Thistlethwaite before the jury was picked because she

          sought to eliminate from the jury's realm of concern and speculation any consideration of the

          consequences of a verdict against him. Accordingly, the jury never knew that Dr.

          Thistlethwaite was ever a defendant, and there was no verdict form whereby the jury could

          have found him liable. However, the erroneous instruction No. 14, tendered by UCMC and

          given by the trial court over plaintiff's objection, gave plaintiff the impossible burden of


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           establishing, and the jury the impossible task of determining, that the nonparty agent, Dr.

           Thistlethwaite, was liable. Because jurors are instructed that they may not discharge their

           duty by picking out some instructions and disregarding others, this court cannot assume that

           the jurors ignored instruction No. 14.

¶ 99          There was sufficient evidence in this case to support the verdict in favor of UCMC. The

           jury could have found nurse Harmon's testimony—that it was her standard practice to inform

           transplant patients about an organ donor's high-risk status—more credible than plaintiff's

           testimony that she did not receive any donor-lifestyle information from nurse Harmon. The

           jury also heard testimony concerning the standard of care applicable to the informed consent

           procedure. Properly guided by plaintiff's instruction No. 10, the jury could have consulted

           the remaining instructions to determine whether the act of an agent, being an act of UCMC,

           gave rise to a verdict for either party. That process, however, was derailed by UCMC's

           instruction No. 14, which mandated a verdict for UCMC unless the jury could perform the

           impossible task of finding Dr. Thistlethwaite liable. Moreover, the instruction removed from

           any meaningful consideration a key and hotly contested factual dispute in the case—the

           actions of nurse Harmon. As far as can be known, the judgment rendered against plaintiff

           might well have been made on the erroneous basis that the standard for informed consent

           required that plaintiff be informed of the donor's high risk status but Dr. Thistlethwaite was

           not liable where he delegated that task to nurse Harmon and she failed to fulfill that task.

¶ 100         The erroneous instruction No. 14—which required the jury to find UCMC not liable if it

           found Dr. Thistlethwaite not liable—seriously prejudiced plaintiff. The instruction did not

           define "liable," give the jury any guidance on how it was to decide whether Dr.

           Thistlethwaite (a nonparty) was either liable or not liable, or account for the vital role of


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   nurse Harmon in the outcome of this case. The jury was forced to figure out the meaning of

   a critical undefined legal term and was directed by the court to ground its ruling upon the

   meaning of an undefined term. Therefore, the erroneous jury instruction constituted

   reversible error.




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