                            ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                       Studt v. Sherman Health Systems, 2011 IL 108182




Caption in Supreme          JANE STUDT et al., Appellees, v. SHERMAN HEALTH SYSTEMS,
Court:                      d/b/a Sherman Hospital, Appellant.


Docket No.                  108182
Filed                       June 16, 2011


Held                       Illinois Pattern Jury Instructions, Civil, No. 105.01 (2006) does not
(Note: This syllabus       accurately state Illinois law as to, first, the type of evidence a jury may
constitutes no part of the consider in determining whether a physician has complied with the
opinion of the court but standard of care and, second, the standard of care for evaluating the
has been prepared by the reasonableness of a physician’s conduct.
Reporter of Decisions for
the convenience of the
reader.)


Decision Under              Appeal from the Appellate Court for the Second District, reported at
Review                      387 Ill. App. 3d 401; heard in that court on appeal from the Circuit
                            Court of Kane County, the Hon. Donald J. Fabian, Judge, presiding.



Judgment                    Affirmed.
Counsel on                Hugh C. Griffin, Stevie A. Starnes and Jacob Z. Goldstein, of Hall,
Appeal                    Prangle & Schoonveld, LLC, of Chicago, and John E. Norton and
                          Thomas J. Long, of Norton, Mancini & Weiler, of Wheaton, for
                          appellant.

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

                          David S. Osborne, of Lindsay, Rappaport & Postel, LLC, and Robert
                          Marc Chemers, of Pretzel & Stouffer, Chtrd., all of Chicago, for amicus
                          curiae Illinois Association of Defense Trial Counsel.

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


Justices                  CHIEF JUSTICE KILBRIDE delivered the judgment of the court,
                          with opinion.
                          Justices Freeman, Thomas, Garman, Burke, and Theis concurred in
                          the judgment and opinion.
                          Justice Karmeier specially concurred, with opinion




                                           OPINION
¶1        In this appeal, we address whether Illinois Pattern Jury Instructions, Civil, No. 105.01
      (2006) (IPI Civil (2006) No. 105.01) correctly states Illinois law on the standard of care in
      professional negligence cases. Plaintiff, Jane Studt, filed a medical malpractice action in the
      circuit court of Kane County against defendant, Sherman Health Systems, doing business as
      Sherman Hospital. Jane alleged the Hospital’s emergency room doctors failed to diagnose
      her appendicitis. Jane’s husband brought a consortium claim.
¶2        Over the Hospital’s objection, the circuit court instructed the jury with IPI Civil (2006)
      No. 105.01. The jury returned a verdict against the Hospital. The appellate court affirmed the
      verdict, holding that IPI Civil (2006) No. 105.01 correctly states the law. 387 Ill. App. 3d
      401. This court allowed the Hospital’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb.
      26, 2010). We hold that IPI Civil (2006) No. 105.01 does not accurately state Illinois law,
      but affirm the appellate court judgment upholding the jury verdict.

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

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       pain. The emergency room physicians failed to diagnose her appendicitis and sent her home
       with prescriptions to treat a urinary tract infection and pain. Two days later, Jane’s regular
       physician admitted her to the Hospital and ordered a surgical consult. Jane’s ruptured and
       gangrenous appendix was surgically removed. Jane subsequently required multiple
       hospitalizations and surgeries for recurrent infections and peritonitis.
¶5         On May 22, 2003, Jane and her husband filed suit against the Hospital. Plaintiffs alleged
       institutional negligence and vicarious liability. It is undisputed that, at trial, only experts
       testified on the standard of care. The trial evidence is not at issue in this appeal. We will not,
       therefore, recite the trial testimony.
¶6         At the conclusion of the evidence, the circuit court held a jury instruction conference.
       Defense counsel objected to giving IPI Civil (2006) No. 105.01. Defense counsel instead
       tendered an instruction based on the prior version, Illinois Pattern Jury Instructions, Civil,
       No. 105.01 (2005) (IPI Civil (2005) No. 105.01).
¶7         One difference between the two instructions is that IPI Civil (2005) No. 105.01 defined
       standard of care in terms of a “reasonably well-qualified” professional, while IPI Civil
       (2006) No. 105.01 uses the terms “reasonably careful.” (Emphases added.) IPI Civil (2006)
       No. 105.01, cmt., at 279. Defense counsel submitted a memorandum of law urging that IPI
       Civil (2006) No. 105.01 is an incorrect statement of Illinois law on the standard for
       professional negligence. Specifically, the Hospital argued:
                    “In exchanging ‘possess and apply the knowledge and use the skill and care
                ordinarily used by a reasonably well qualified’ professional for ‘reasonably careful,’
                the I.P.I. Committee has essentially invited jurors to apply their own reasonable
                person standard rather than the professional standard as shown by the evidence.”
¶8         The Hospital also argued that the language of IPI Civil (2006) No. 105.01 suggesting that
       professional negligence can be proven through evidence of bylaws, rules, regulations,
       policies, procedures, evidence of community practice and other sources is misleading.
       According to the Hospital, this evidence is insufficient to establish professional negligence
       absent competent expert opinion testimony. The trial court overruled the defense objections
       and gave plaintiffs’ instruction based on IPI Civil (2006) No. 105.01.
¶9         The Hospital did not submit special interrogatories to the jury and the jury returned a
       general verdict against the Hospital. The circuit court denied the Hospital’s posttrial motion
       for a new trial and entered judgment on the jury’s verdict.
¶ 10       The Hospital’s sole argument on appeal to the appellate court was that plaintiffs’
       instruction based on IPI Civil (2006) No. 105.01 is an incorrect statement of Illinois law and
       constituted reversible error. The appellate court affirmed the trial court’s judgment, holding
       that the “reasonably careful” language in IPI Civil (2006) No. 105.01 accurately states the
       law. 387 Ill. App. 3d at 404. The appellate court determined that the complete language of
       IPI Civil (2006) No. 105.01 leaves no question that jurors should determine the standard of
       care based on the evidence and not on their personal knowledge. 387 Ill. App. 3d at 404. The
       appellate court subsequently denied the Hospital’s petition for rehearing. This court allowed
       the Hospital’s petition for leave to appeal. Ill. S. Ct. R. 315.


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¶ 11                                        II. ANALYSIS
¶ 12        The Hospital’s sole contention in this appeal is that IPI Civil (2006) No. 105.01 does not
       accurately state Illinois law in three ways. First, the Hospital argues the instruction does not
       accurately state the type of evidence the jury may consider in determining whether a
       physician has complied with the standard of care. Second, the Hospital contends the
       instruction fails to provide the jury with the standard of care for evaluating the
       reasonableness of a physician’s conduct. Finally, according to the Hospital, the instruction
       erroneously instructed the jury on the use of personal knowledge in determining the standard
       of care.
¶ 13        Generally, a trial court’s decision to grant or deny an instruction is reviewed for abuse
       of discretion. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002). “The standard for
       determining an abuse of discretion is whether, taken as a whole, the instructions are
       sufficiently clear so as not to mislead and whether they fairly and correctly state the law.”
       Dillon, 199 Ill. 2d at 505. When the question is whether the applicable law was conveyed
       accurately, however, the issue is a question of law, and our standard of review is de novo.
       Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163, 170 (2008).
¶ 14        Supreme Court Rule 239(a) requires that “[w]henever Illinois Pattern Jury Instructions
       (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts
       and the prevailing law, and the court determines that the jury should be instructed on the
       subject, the IPI instruction shall be used, unless the court determines that it does not
       accurately state the law.” Ill. S. Ct. R. 239(a) (eff. Jan. 1, 1999). A non-IPI instruction may
       be used if the court determines that the pattern instruction does not accurately state the law.
       Ill. S. Ct. R. 239(b).
¶ 15        The trial court gave pattern instruction IPI Civil (2006) No. 105.01 for professional
       negligence cases, but the Hospital argued that it is not a correct statement of Illinois law. We
       now review whether IPI Civil (2006) No. 105.01 is a correct statement of Illinois law.

¶ 16              Whether IPI Civil (2006) No. 105.01 Accurately States Illinois
                      Law on the Type of Evidence the Jury May Consider in
                               Determining Professional Negligence
¶ 17       The Hospital argues that IPI Civil (2006) No. 105.01 does not accurately state Illinois law
       on the type of evidence the jury may consider in determining whether a physician has
       complied with the standard of care. At the time of trial, IPI Civil (2006) contained an
       instruction applicable to claims for professional negligence. IPI Civil (2006) No. 105.01
       provides:
                   “105.01 Professional Negligence–Duty
                   ‘Professional negligence’ by a _____________________
               [specialist/doctor/nurse/therapist/health care provider/accountant/lawyer/other] is the
               failure to do something that a reasonably careful ____________________
               [specialist/doctor/nurse/therapist/health care provider/accountant/lawyer/other]
               [practicing in the same or similar localities] ______________________________


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               [specialist/doctor/nurse/therapist/health care provider/accountant/lawyer/other] would
               do, or the doing of something that a reasonably careful __________________
               [specialist/doctor/nurse/ therapist/health care provider/accountant/lawyer/ other]
               would not do, under circumstances similar to those shown by the evidence.
                   The phrase [‘violation of the standard of care’] [‘deviation from the standard of
               practice’] means the same thing as ‘professional negligence.’
                   [To determine what the standard [of care] [of practice] required in this case, you
               must rely upon (opinion testimony from qualified witnesses) (evidence of
               professional standards) (evidence of by-laws/rules regulations/policies/procedures)
               (evidence of community practice) (and other sources). You must not attempt to
               determine this question from any personal knowledge you have.] The law does not
               say how a reasonably careful _______________________________________
               [specialist/doctor/nurse/therapist/health care provider/accountant/lawyer/other] would
               act under these circumstances. That is for you to decide.” IPI Civil (2006) No.
               105.01.
¶ 18       According to the Hospital, a jury is limited to considering expert testimony and, in some
       instances, evidence of professional standards or conduct in deciding whether a physician’s
       conduct met the standard of professional care. The Hospital submits that IPI Civil (2006) No.
       105.01 is a misstatement of law because it erroneously instructs that the jury may consider
       a broad array of other evidentiary sources including bylaws, rules, regulations, policies,
       procedures, community practice and other evidence. The Hospital argues that these other
       evidentiary sources can be properly considered only in institutional negligence claims against
       a hospital, not claims based on vicarious liability for professional negligence. The Hospital
       states that IPI Civil (2006) No. 105.01 essentially eliminated the distinction between
       professional negligence and institutional negligence. Consequently the Hospital claims that,
       under IPI Civil (2006) No. 105.01, there is no limit on what evidence the jury may consider
       in deciding whether the emergency room doctors committed professional negligence.
¶ 19       Plaintiffs argue that the Hospital forfeited any objection to the language referencing
       “evidence of professional standards, evidence of bylaws, rules, regulations, policies and
       procedures and other evidence presented” by failing to object to it during the jury instruction
       conference. “A party forfeits the right to challenge a jury instruction that was given at trial
       unless it makes a timely and specific objection to the instruction and tenders an alternative,
       remedial instruction to the trial court.” Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 557
       (2008). We note, however, that the Hospital objected in its written memorandum.
       Accordingly, the Hospital has not forfeited its objection.
¶ 20       We now consider whether IPI Civil (2006) No. 105.01 accurately states Illinois law on
       the type of evidence the jury may consider in determining whether a physician has complied
       with the standard of care. “[I]n professional negligence cases, *** the plaintiff bears a burden
       to establish the standard of care through expert witness testimony.” Advincula v. United
       Blood Services, 176 Ill. 2d 1, 24 (1996). This requirement is based on the simple fact that
       without expert testimony, jurors, not skilled in the profession, are not equipped to judge the
       professional’s conduct. Advincula, 176 Ill. 2d at 24, 33; Walski v. Tiesenga, 72 Ill. 2d 249,


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       256 (1978). Courts have recognized two exceptions to this rule: where the professional’s
       conduct is so grossly negligent, or the procedure so common, that the jury can readily
       appraise it without the need for expert testimony. Jones v. Chicago HMO Ltd. of Illinois, 191
       Ill. 2d 278, 296 (2000).
¶ 21        In contrast to professional negligence, institutional negligence does not necessarily
       require expert testimony and may be established by a wide array of evidence. As this court
       explained in the context of an institutional negligence claim against a hospital:
                “[A] modern hospital *** is an amalgam of many individuals not all of whom are
                licensed medical practitioners. Moreover, it is clear that at times a hospital functions
                far beyond the narrow sphere of medical practice. Accordingly, while various
                medical judgments are necessarily a daily part of hospital administration, they do not
                constitute the entirety of a hospital’s function, as is the case with single medical
                practitioners. Thus, we deem it appropriate to the diversity inherent in hospital
                administration that a broad range of evidence be available to establish the applicable
                standard of care.” Greenberg v. Michael Reese Hospital, 83 Ill. 2d 282, 293 (1980)
                (citing Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965)).
       In Advincula, this court compared the role of expert testimony in professional negligence
       cases and in institutional negligence cases, stating:
                “[I]t is the inherent diversity in hospital administration which permits a broad range
                of evidence, including expert witness testimony, administrative rules and regulations,
                to establish the reasonableness standard of care, but does not call necessarily for such
                proofs. This relationship contrasts with that between professional conduct and proofs
                relevant to establish the appropriate professional standard of care; such proofs in the
                form of expert witness testimony or other evidence of professional standards are
                generally required because they are generally necessary to evaluate conduct which is
                likely arcane to lay jurors.” (Emphasis in original.) Advincula, 176 Ill. 2d at 33.
¶ 22        In Jones, this court again addressed the difference between institutional negligence and
       professional negligence, and the proofs permitted or required in each type of action. Tracing
       the development of case law considering the institutional negligence of hospitals, we
       concluded that Darling and its progeny have firmly established that the standard of care
       applicable to a hospital may be proved by a number of evidentiary sources, including, but not
       limited to, hospital bylaws, statutes, accreditation standards, custom and community practice,
       but that expert testimony is not always required. Jones, 191 Ill. 2d at 296-98.
¶ 23        The distinction between the evidence required to establish professional negligence versus
       institutional negligence, recognized and preserved by this court in cases like Advincula and
       Jones, has been completely eliminated by the 2006 IPIs. Under the 2006 instructions, the
       evidence that a jury may consider in determining the standard of care in professional
       negligence cases is identical to the evidence that a jury may consider in institutional
       negligence cases. Compare IPI Civil (2006) No. 105.01 (professional negligence), with IPI
       Civil (2006) No. 105.03.01 (institutional negligence). The necessity of expert testimony in
       professional negligence cases is not reflected in the 2006 professional negligence IPI.
       Bylaws, rules, regulations, policies, and procedures are now on equal footing with expert


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       testimony in judging a professional’s conduct. Thus, under the 2006 IPIs, the possibility
       exists that a medical doctor could be found liable for professional negligence based only on
       the violation of a hospital rule or regulation. This is not the law in Illinois.
¶ 24        We recognize, however, that the 2005 professional negligence IPI already permitted a
       professional standard of care to be established through nonexpert testimony, i.e., “evidence
       of professional standards or conduct.” IPI Civil (2005) No. 105.01. The notes on use to the
       2005 IPI cite three cases in support: Ohligschlager v. Proctor Community Hospital, 55 Ill.
       2d 411 (1973), Metz v. Fairbury Hospital, 118 Ill. App. 3d 1093 (1983), and Smith v. South
       Shore Hospital, 187 Ill. App. 3d 847 (1989).
¶ 25        In Ohligschlager, we held that the drug manufacturer’s explicit instructions for the proper
       administration and dosing of the drug, and warning of the hazards accompanying improper
       administration, provided proof of the professional standards applicable to the defendant
       doctor “which would ordinarily be shown by expert medical testimony.” Ohligschlager, 55
       Ill. 2d at 417. In Metz, the appellate court held that the expert testimony, provided by the
       defendant doctors, did not establish a breach of the standard of care. Metz, 118 Ill. App. 3d
       at 1098. In Smith, the appellate court noted that certain professional guides, such as hospital
       licensing regulations, accreditation standards, bylaws and instructions for the use of drugs,
       may serve as a substitute for expert testimony, but cited only Darling, an institutional
       negligence case, and Ohligschlager. Smith, 187 Ill. App. 3d at 856.
¶ 26        This trio of cases provides, at most, only limited support for the use of evidence other
       than expert testimony in a professional negligence case. Thus the “evidence of professional
       standards or conduct” language found in the 2005 IPI should not be viewed as an alternative
       to expert testimony but, instead, only as a limited exception.
¶ 27        Notably, the 2006 professional negligence IPI text offers no case law or any other
       justification for expanding the nonexpert evidentiary sources applicable to a professional
       negligence action. Nor does the text hint at any reason for placing expert testimony on a par
       with bylaws, rules, regulations, policies and procedures. Moreover, cases such as Advincula
       and Jones firmly establish that while expert testimony is permitted in institutional negligence
       cases, it is required in professional negligence cases. Accordingly, we determine that the
       2006 IPI effects a significant and unwarranted departure from the established law governing
       professional negligence cases.
¶ 28        Because the 2006 professional negligence IPI does not accurately state the law, the trial
       court erred in giving the instruction to the jury. See Ill. S. Ct. R. 239(a). Reversal is
       warranted if the error resulted in “serious prejudice” to the Hospital’s right to a fair trial.
       Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007). See also Schultz v. Northeast Illinois
       Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002) (“reviewing court ordinarily will
       not reverse a trial court for giving faulty instructions unless they clearly misled the jury and
       resulted in prejudice to the appellant”). Review of the trial testimony indicates that the
       Hospital did not suffer serious prejudice.
¶ 29        The Hospital was defending against a professional negligence claim (vicarious liability
       for the alleged professional negligence of its emergency room doctors) and an institutional
       negligence claim (the alleged failure to assure adequate communication between its doctors).


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       Evidence of the standard of care supporting both theories of recovery was introduced through
       expert testimony. Though the Hospital’s rules and regulations for medical staff were also
       admitted into evidence, the rules and regulations were not held out as establishing the
       standard of care for emergency room physicians. The rules and regulations merely buttressed
       the expert testimony that patient care was compromised through the emergency room
       doctors’ failure to communicate adequately with each other and the Hospital’s failure to
       assure adequate communication. Reversal is not warranted.
¶ 30        In another case, however, with different proofs and theories of recovery, serious prejudice
       could very well result where a jury is instructed to consider the same evidence in deciding
       the distinct claims of professional negligence and institutional negligence, particularly where
       expert testimony is lacking. In such cases, as noted above, a jury could find a physician liable
       for professional negligence based only on the violation of a hospital rule or regulation.
¶ 31        For the foregoing reasons, we hold that the version of IPI Civil (2006) No. 105.01 given
       at trial constituted error because it did not limit the jury’s consideration to expert testimony.
       However, we hold that reversal is not warranted because the error did not result in “serious
       prejudice” to the Hospital’s right to a fair trial.

¶ 32             Whether IPI Civil (2006) No. 105.01 Provides the Proper Standard
                              of Care in Professional Negligence Cases
¶ 33        The Hospital also challenges another change in the professional negligence IPI. While
       the 2005 version states that the professional “must possess and apply the knowledge and use
       the skill and care ordinarily used by a reasonably well-qualified [professional]” (IPI Civil
       (2005) No. 105.01), the 2006 version states that professional negligence “is the failure to do
       something that a reasonably careful [professional] would do, or the doing of something that
       a reasonably careful [professional] would not do, under circumstances similar to those shown
       by the evidence” (IPI Civil (2006) No. 105.01).
¶ 34        As explained in the Restatement (Second) of Torts, the skill a professional must exercise
       is “that special form of competence which is not part of the ordinary equipment of the
       reasonable man, but which is the result of acquired learning, and aptitude developed by
       special training and experience.” Restatement (Second) of Torts §299A, cmt. a, at 73 (1965).
       The 2006 professional negligence IPI is incomplete because it contains no reference to the
       professional’s knowledge, skill, and care (or knowledge, skill, and ability) and, therefore,
       does not accurately state Illinois law as to the standard of care applicable in professional
       negligence actions. See Loman v. Freeman, 229 Ill. 2d 104, 119 (2008); Jinkins v. Lee, 209
       Ill. 2d 320, 336 (2004); Jones, 191 Ill. 2d at 295; Advincula, 176 Ill. 2d at 23; Matarese v.
       Buka, 386 Ill. App. 3d 176, 184-85 (2008). Accordingly, we hold that the trial court erred
       when it instructed the jury in accordance with the 2006 IPI. See Ill. S. Ct. R. 239(a). As noted
       earlier, reversal is warranted if the error resulted in serious prejudice to the Hospital’s right
       to a fair trial. See Heastie, 226 Ill. 2d at 543. Based on the expert testimony presented at trial
       by both parties, the arguments of counsel, the overall manner of the trial, and the jury
       instructions as a whole, we cannot conclude that the incompleteness in the professional
       negligence instruction requires reversal. Notably, Dr. Frank Baker, the plaintiff’s emergency

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       medicine expert, testified extensively as to the role of the emergency room physician in
       general, the role of the Hospital’s two emergency room doctors who evaluated the plaintiff,
       and how their conduct violated the standard of care. The jury was adequately informed, even
       if not formally instructed, that the Hospital’s emergency room physicians were required to
       use the same degree of knowledge, skill, and ability normally possessed by emergency room
       physicians under similar circumstances.

¶ 35            Whether IPI Civil (2006) No. 105.01 Erroneously Instructs the Jury
                                 on the Use of Personal Knowledge
¶ 36        The Hospital further argues that IPI Civil (2006) No. 105.01 gives the jury inconsistent
       and confusing direction on the use of personal knowledge in determining the standard of
       care. According to the Hospital, the instruction erroneously combines the “reasonably careful
       doctor” language with the statement that “[t]he law does not say how a reasonably careful
       physician would act under these circumstances. That is for [the jury] to decide.” The Hospital
       contends that this instruction encourages jurors to decide the case based on their own
       personal view of what is reasonable.
¶ 37        In this case, the appellate court noted that two appellate decisions conflict on the
       correctness of this portion of IPI Civil (2006) No. 105.01. 387 Ill. App. 3d at 405. In LaSalle
       Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806 (2008), the appellate court
       held that the “reasonably careful” language accurately states the law because “ ‘the standard
       of care for all professionals is “the use of the same degree of knowledge, skill and ability as
       an ordinarily careful professional would exercise under similar circumstances.” ’ ” LaSalle
       Bank, 384 Ill. App. 3d at 816-17 (quoting Loman, 229 Ill. 2d at 119, quoting Advincula, 176
       Ill. 2d at 23). In contrast, the appellate court in Matarese v. Buka, 386 Ill. App. 3d 176
       (2008), held that additional modifications to IPI Civil (2006) No. 105.01 were necessary to
       prevent jury confusion. Specifically, Matarese determined that the instruction “initially tells
       jurors not to determine the standard of care from their personal knowledge, but then seems
       to contradict itself by adding that the law does not say how a reasonably careful professional
       would act under the circumstances and that is for the jurors to decide.” Matarese, 386 Ill.
       App. 3d at 185. The appellate court in this case disagreed with Matarese and followed
       LaSalle Bank.
¶ 38        We must determine whether, “taken as a whole, the instructions are sufficiently clear so
       as not to mislead and whether they fairly and correctly state the law.” Dillon, 199 Ill. 2d at
       505. A brief examination of the instruction answers the question on the use of personal
       knowledge. Importantly, just before the language the Hospital finds objectionable, the
       instruction states that jurors “must not attempt to determine [the standard of care] from any
       personal knowledge.” Thus, IPI Civil (2006) No. 105.01 expressly instructs the jurors that
       they are not to decide professional negligence based on their own views of how a reasonably
       careful physician would act under the circumstances. Additionally, personal knowledge is
       not listed as an evidentiary source the jury may consider.
¶ 39        We therefore reject the Hospital’s argument that IPI Civil (2006) No. 105.01 gives the
       jury inconsistent and confusing direction on the use of personal knowledge in determining

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       the standard of care. Given our determination, it is unnecessary to address plaintiffs’
       alternative contention that their institutional negligence claim alone supports the jury’s
       verdict.

¶ 40                                   III. CONCLUSION
¶ 41       For the foregoing reasons we hold that the 2006 professional negligence IPI does not
       accurately state Illinois law as to the evidence a jury may consider and the applicable
       standard of care, but, nevertheless, uphold the appellate court judgment affirming the jury
       verdict.

¶ 42       Affirmed.

¶ 43       JUSTICE KARMEIER, specially concurring:
¶ 44       I agree with the result reached by the majority. The judgment of the circuit court was
       properly affirmed by the appellate court. I also agree with the majority that the use of IPI
       Civil (2006) No. 105.01 in this case was not reversible error. I write separately because I
       would reach that conclusion for different reasons than those expressed by my colleagues.
¶ 45       As the majority correctly points out, the sole issue presented by Sherman Hospital on this
       appeal is that IPI Civil (2006) No. 105.01 does not accurately state Illinois law applicable to
       claims alleging professional negligence. The record clearly shows, however, that professional
       negligence was not the only theory under which plaintiffs sought recovery from Sherman
       Hospital. In addition to their professional negligence claim, which asserted that Sherman
       Hospital should be held vicariously liable for the negligence of the emergency doctors who
       failed to diagnose Mrs. Studt’s appendicitis, plaintiffs also sought recovery from Sherman
       Hospital based on the direct institutional negligence of the hospital itself.
¶ 46       The jury was instructed on both theories using the versions of the IPI civil instruction at
       issue in this case. Sherman Hospital does not contend that the instructions were problematic
       with respect to plaintiffs’ institutional negligence claim. To the extent that the instructions
       are claimed to be defective, the flaws pertain exclusively to the claim premised on the
       professional negligence of the emergency room doctors.
¶ 47       Sherman Hospital faces a formidable obstacle in presenting this issue on appeal because
       the jury returned a general verdict. It did not specify on which of the two theories it relied in
       finding the hospital negligent, and no special interrogatories were requested to clarify the
       basis for the jury’s verdict. The reason this is problematic for Sherman Hospital is that our
       Code of Civil Procedure expressly provides that where, as here, multiple grounds of recovery
       “are pleaded in support of the same claim, whether in the same or different counts, an entire
       verdict rendered for that claim shall not be set aside or reversed for the reason that any
       ground is defective, if one or more of the grounds is sufficient to sustain the verdict.” 735
       ILCS 5/2–1201(d) (West 2006). Similarly our court has held that when “there is a general
       verdict and more than one theory is presented, the verdict will be upheld if there was
       sufficient evidence to sustain either theory, and the defendant, having failed to request


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       special interrogatories, cannot complain.” Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987).
¶ 48        In light of this authority, any problem regarding the propriety of the jury instruction on
       plaintiffs’ professional negligence count is immaterial, as a matter of law, unless Sherman
       Hospital can establish that there was not sufficient evidence to sustain a verdict based on
       plaintiffs’ alternative count asserting institutional negligence. Plaintiffs argued vigorously
       in the appellate court that their institutional negligence claim alone would, in fact, be
       sufficient to support the jury’s verdict. Although the appellate court rejected plaintiffs’
       argument, it did so, in part, under the belief that plaintiffs had forfeited the issue by failing
       to present it in response to Sherman Hospital’s posttrial motion. See 387 Ill. App. 3d 401,
       403 n.1. This was a fundamental misapprehension of the law. There was no forfeiture, for
       it is well established that an appellee may argue in support of the judgment on any basis
       which appears in the record (see Hayes v. Board of Fire & Police Commissioners, 230 Ill.
       App. 3d 707, 710 (1992)), and an appellate court may affirm a trial court’s judgment on any
       grounds which the record supports (see Water Tower Realty Co. v. Fordham 25 E. Superior,
       L.L.C., 404 Ill. App. 3d 658, 665 (2010)), even where those grounds were not argued by the
       parties (see Redd v. Woodford County Swine Breeders, Inc., 54 Ill. App. 3d 562, 565 (1977)).
¶ 49        Illinois has long recognized that hospitals may be held liable for institutional negligence,
       which is also known as direct corporate negligence. Under this doctrine, liability is
       predicated on the hospital’s own negligence, not the negligence of the physician who treated
       the patient. The hospital’s duty is ordinarily administrative or managerial in character. To
       satisfy the duty, a hospital must act as would a “reasonably careful hospital” under the
       circumstances. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291-92 (2000).
¶ 50        Whether the hospital breached its duty in this case was a question of fact for the jury to
       decide. See Iseberg v. Gross, 227 Ill. 2d 78, 87 (2007). In its posttrial motion, Sherman
       Hospital contended that the jury’s verdict was contrary to the manifest weight of the
       evidence, but a verdict is contrary to the manifest weight of the evidence only when the
       opposite conclusion is clearly evident or when the jury’s findings prove to be unreasonable,
       arbitrary and not based upon any of the evidence. York v. Rush-Presbyterian-St. Luke’s
       Medical Center, 222 Ill. 2d 147, 179 (2006). In discussing the sufficiency of the evidence in
       this case, the appellate court made no mention of this standard. Instead, it undertook its own
       assessment of the record. See 387 Ill. App. 3d at 402-03. This is something it should not have
       done, for “[i]t is well established that, in an appeal from a jury verdict, a reviewing court may
       not simply reweigh the evidence and substitute its judgment for that of the jury.” Snelson v.
       Kamm, 204 Ill. 2d 1, 35 (2003).
¶ 51        Assuming for the sake of argument that the appellate court could properly have
       concluded that the evidence would not support a verdict against Sherman Hospital based on
       the theory of institutional negligence, leaving the professional negligence theory as the only
       potentially viable basis for recovery, I would agree with the majority’s analysis of IPI Civil
       (2006) No. 105.01 as to whether the instruction (1) properly stated the standard of care for
       claims based on professional negligence or (2) erroneously instructed the jury on use of
       personal knowledge. I would also agree with the substance of the majority’s discussion of
       Sherman Hospital’s primary challenge to the instruction, namely, that the instruction
       impermissibly expands the types of evidence which may be considered by the jury in

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       professional negligence actions. In my view, however, that issue is not properly before us.
¶ 52       Sherman Hospital admitted both in its brief and at oral argument that all the evidence
       adduced by plaintiffs regarding the standard of care applicable to their professional
       negligence claim consisted of permissible expert testimony. None of the other types of
       evidence mentioned in IPI Civil (2006) No. 105.01 were presented to the jury with respect
       to that claim. It was therefore impossible for the jury to have considered evidence it should
       not have. That being so, the challenged expansiveness of the instruction could not have
       affected the outcome and therefore worked no prejudice on Sherman Hospital. There being
       no prejudice, this aspect of the instruction could not serve as a basis for disturbing the
       judgment of the circuit court. See Schultz v. Northeast Illinois Regional Commuter R.R.
       Corp., 201 Ill. 2d 260, 274 (2002). Where the result of a case will not be affected by how an
       issue is decided, the courts of Illinois normally refrain from deciding that issue. See In re
       Alfred H.H., 233 Ill. 2d 345, 351 (2009). As we have repeatedly stated, advisory opinions are
       to be avoided. See, e.g., People v. Hampton, 225 Ill. 2d 238 (2007).
¶ 53       The majority seeks to avoid this established principle of judicial review with the
       observation that “[i]n another case *** with different proofs and theories of recovery, serious
       prejudice could very well result where a jury is instructed to consider the same evidence in
       deciding the distinct claims of professional negligence and institutional negligence,
       particularly where expert testimony is lacking.” Supra ¶ 30. While I do not disagree with this
       possibility and appreciate the value of clarifying the law, I am also mindful of our
       admonition that courts of review should not ordinarily decide abstract questions, or review
       cases merely to establish precedent. People v. Latona, 184 Ill. 2d 260, 281 (1998). In my
       view, we should not depart from these principles absent compelling justification for doing
       so. I see no such justification here. Accordingly, while I agree with the result reached by the
       majority, I would leave resolution of this issue for another day.




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