                                   2015 IL App (1st) 140932

                                         No. 1-14-0932

                                 Opinion filed April 30, 2015


                                                           FOURTH DIVISION
______________________________________________________________________________

                                    IN THE
                       APPELLATE COURT OF ILLINOIS
                          FIRST JUDICIAL DISTRICT
______________________________________________________________________________

WILLIAM M. GROELLER, JR., Individually          )     Appeal from the
and as Administrator of the Estate of           )     Circuit Court of
Eleanor Groeller,                               )     Cook County.
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )     No. 09 L 2821
                                                )
THE EVERGREEN HEALTHCARE CENTER LLC, )
d/b/a Evergreen Healthcare Center,              )
                                                )
       Defendant-Appellee                       )
                                                )
(Boulevard Healthcare Management, LLC,          )
a/k/a Boulevard Healthcare, LLC,                )     Honorable
                                                )     Thomas E. Flanagan
       Defendant).                              )     Judge Presiding.
______________________________________________________________________________

       JUSTICE HOWSE delivered the judgment of the court, with opinion.
       Justices Ellis and Cobbs concurred in the judgment and opinion.

                                          OPINION

¶1     Plaintiff, William M. Groeller, Jr., individually and as administrator of the estate of

Eleanor Groeller (his mother), deceased, filed a six-count complaint against defendants,

Evergreen Healthcare Center, LLC, doing business as Evergreen Healthcare Center

(Evergreen or the nursing home), and Boulevard Healthcare Management, LLC (also known
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as Boulevard Healthcare, LLC). Eleanor, then 90 years old, was injured in an accident at her

home and broke her right arm and both thumbs. After being treated at Northwestern

Hospital, she was discharged to Evergreen, a nursing home. At Evergreen, Eleanor’s physical

and mental condition worsened. Eleanor was returned to Northwestern Hospital, where she

died. At the conclusion of the trial, the trial court instructed the jury on both institutional

negligence (particularly the duty of a healthcare institution) and on professional negligence

(particular the duty of a professional nurse).

¶2     The jury returned a verdict in favor of defendant. Plaintiff appeals, arguing the trial

court committed reversible error in giving the jury both instructions. Specifically, plaintiff

argues the trial court committed reversible error in failing to determine what law applies and

instructing the jury accordingly. Separately, plaintiff argues the jury’s verdict should be

reversed and the cause remanded for a new trial because the trial court’s instructions were

contradictory and prejudiced him.

¶3     For the following reasons, we affirm.

¶4                                     BACKGROUND

¶5     The complaint alleged that Eleanor Groeller was a resident of Evergreen nursing home

from November 17, 2007 until December 1, 2007, following her discharge from

Northwestern Hospital after treatment for a broken right arm and two broken thumbs. The

complaint alleged that upon her admission to Evergreen, Eleanor required assistance for

eating, dressing, bathing, administration of medication, walking, and moving from bed to

chair. Sometime after being admitted to Evergreen, Eleanor developed pressure ulcers. The

complaint alleged that while in Evergreen Eleanor was in a sad or anxious mood and that by


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November 26, 2007, she suffered from (a) frequent bowel incontinence, (b) multiple daily

episodes of bladder incontinence, (c) pressure sores damaging underlying tissue, and (d) partial

loss of skin or a shallow skin crater or both. Evergreen discharged Eleanor on December 1,

2007. The complaint alleged that when she was discharged, Eleanor had pressure ulcers and

had deteriorated mentally. Northwestern Hospital readmitted Eleanor and diagnosed her

with lethargy or failure to thrive, infection, and an E. coli infection. Eleanor died on

December 14, 2007, two weeks after being discharged from Evergreen Healthcare Center.

¶6     Plaintiff’s amended complaint (complaint) alternatively alleged that Evergreen

Healthcare Center, LLC (hereinafter defendant) and Boulevard Healthcare Management, LLC

(Boulevard), owned, operated, or managed Evergreen Healthcare Center and was the licensee

of Evergreen Healthcare Center. Boulevard is not a party to this appeal. The complaint

alleged, in relevant part, that defendant violated the Nursing Home Care Act (210 ILCS 45/1-

101 et seq. (West 2008)) (count I); negligence resulting in a survival claim (count II); and

negligence resulting in a wrongful death claim (count III).

¶7     Plaintiff’s complaint for a violation of the Nursing Home Care Act alleged that

defendant, “by its owners, officers, managers, agents, employees, and servants,” owed Eleanor

a duty to comply with the Nursing Home Care Act. Plaintiff alleged that defendant,

“individually, and by and through its owners, officers, managers, agents and employees,”

violated the Nursing Home Care Act by (a) failing to properly attend and care for Eleanor, (b)

failing to properly assist Eleanor, (c) failing to properly care for Eleanor’s deteriorating mental

status, (d) allowing pressure sores to develop, (e) allowing pressure sores to increase in severity

and size, and (f) otherwise violating statutory duties in Eleanor’s “care, monitoring and


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attendance.” Plaintiff’s complaint alleges that under the Nursing Home Care Act, defendant

is liable to any resident for the intentional or negligent acts or omissions of their agents or

employees which injure the residents. Plaintiff alleged that as a direct and proximate result of

one or more of defendant’s violations of the Nursing Home Care Act, Eleanor suffered harm

resulting in physical and mental injuries which resulted in her death.

¶8     Plaintiff’s negligence counts alleged that defendant, “by and through its owners,

officers, managers, agents and employees had a duty to exercise that degree of care in

providing services and facilities to [Eleanor] as required of similar nurses and facilities in

similar circumstances.” The negligence count alleged that defendant “by and through its

owners, officers, managers, agents and employees, failed to provide to [Eleanor] that degree of

care required of similar nurses and facilities in similar circumstances and was negligent in” (a)

failing to properly attend and care for Eleanor, (b) failing to properly assist Eleanor, (c) failing

to properly care for Eleanor’s deteriorating mental status, (d) allowing pressure sores to

develop, (e) allowing pressure sores to increase in severity and size, and (f) otherwise violating

duties in Eleanor’s “care, monitoring and attendance.” The complaint alleged that as a direct

and proximate result of one or more of defendant’s negligent acts or omissions Eleanor

suffered harm resulting in physical and mental injuries which resulted in her death and

Eleanor and her next of kin suffered damages and pecuniary injuries.




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¶9     Plaintiff attached a report under section 2-622 of the Code of Civil Procedure (735

ILCS 5/2-622 (West 2012)) 1 as an exhibit to his negligence counts from Shirley Daugherty,

R.N., RAC-CT, CLCP, CLNC. Daugherty’s report concludes that errors by Evergreen

“breached the standard of care and caused Eleanor Groeller injury, damage, and harm, and

ultimately death.”

¶ 10   Plaintiff called Dr. Daniel Swagerty as an expert witness at trial. Swagerty testified

that when an individual enters a nursing home “they are going to get assessed by a number of

different professionals. They need to have a medical assessment. Also, the nurses assess them,

as do[es] the dietician, all the providers.” Swagerty did testify that the nursing home violated

the standard of care applicable to the nursing home in several respects. He stated the nursing

facility “failed to fully assess her, fully to provide the type of really high-touch type of

approach, having nursing, social work, involved the doctor. [sic] They didn’t even involve

the attending physician around these issues. *** It would have only taken social work,

physician, nursing to work together, and then individually to be able to provide her moral

support, some psychological support. That would have been at the very minimum.” One of

the ways in which the nursing home violated the standard of care applicable to it, according to

Swagerty’s testimony, was by failing to turn her, failing to keep her dry, and dragging her

across the sheets, which is how he testified her pressure ulcers developed.



       1
                “In any action, whether in tort, contract or otherwise, in which the plaintiff
       seeks damages for injuries or death by reason of medical, hospital, or other healing art
       malpractice, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se,
       shall file an affidavit, attached to the original and all copies of the complaint ***.” 735
       ILCS 5/2-622(a) (West 2012).


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¶ 11   Daugherty testified at the trial. When asked what her thoughts were after she was

initially contacted and asked to review Eleanor’s medical record, Daugherty stated that

Eleanor’s “needs were not met and the nursing staff had not followed the standard of care in

ensuring that she had her--had proper nutrition to maintain her current status upon

admission.” Daugherty offered her opinion on the duties of a registered nurse in a nursing

home regarding the delivery of treatment by dieticians, social workers, psychologists and

psychiatrists. Plaintiff’s counsel then asked Daugherty to describe what deviations from the

standard of care she found from her review of pertinent documents. Daugherty testified in

part that, “as a nurse, it is their duty and responsibility to ensure that--that if someone is

refusing their meals, you’ve got to find out why and the nursing staff did not.” Daugherty

also testified that it would be a “nursing judgment” to make the decision to offer a resident,

who was not eating, six small meals throughout the day as an alternative. She opined that the

nurse in a nursing home is “the frontline caregiver and it is our responsibility to ensure that

our residents are taken care of.” Daugherty testified that a nurse can make observations to

report to other medical disciplines when requesting care for a nursing home resident.

¶ 12   The trial court conducted a jury instruction conference at which plaintiff tendered an

instruction on institutional negligence: Illinois Pattern Jury Instructions, Civil, No. 105.03.01

(2006) (hereinafter, IPI Civil (2006) No. 105.03.01). The instruction reads, in part, as follows:

                       “Negligence by a nursing home is the failure to do

               something that a reasonably careful nursing home would do, or

               the doing of something that a reasonably careful nursing home




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               would not do, under circumstances similar to those shown by

               the evidence.

                      In deciding whether the defendant Evergreen Healthcare

               Center, LLC was negligent, you may consider opinion testimony

               from qualified witnesses, evidence of professional standards,

               evidence of policies and procedures, evidence of community

               practice, and other evidence presented in this case.” IPI Civil

               (2006) No. 105.03.01.

¶ 13   Defendant objected and tendered a professional negligence instruction: Illinois Pattern

Jury Instructions, Civil, No. 105.01 (2006) (hereinafter, IPI Civil (2006) No. 105.01).

Defendant’s instruction reads, in part, as follows:

                    “ ‘Professional negligence’ by a nurse is the failure to do

               something that a reasonably careful nurse practicing in the same

               or similar localities as the nurse would do, or the doing of

               something that a reasonably careful nurse would not do, under

               circumstances similar to those shown by the evidence.” IPI Civil

               (2006) No. 105.01.

¶ 14   The trial court initially ruled it would give the institutional negligence instruction, but

after additional argument from the parties, the court decided it would give the professional

negligence instruction as well.

¶ 15   The jury returned a verdict in favor of defendant. The trial court entered judgment on

the verdict. The court then denied plaintiff’s posttrial motion.


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¶ 16   This appeal followed.

¶ 17                                       ANALYSIS

¶ 18   On appeal plaintiff argues the trial court committed reversible error when it gave

conflicting instructions to the jury.

               “In Illinois, 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 its verdict. 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).

¶ 19    Further:

               “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. [Citation.]” Studt v. Sherman

               Health Systems, 2011 IL 108182, ¶ 13.

¶ 20   Plaintiff argues the trial court erred in instructing the jury with regard to defendant’s

duty to Eleanor. “A duty, in negligence cases, may be defined as an obligation, to which the

law will give recognition and effect, to conform to a particular standard of conduct toward

another. [Citation.]” (Internal quotation marks omitted.) Jones v. Chicago HMO Ltd. of

Illinois, 191 Ill. 2d 278, 295 (2000). “[I]n negligence cases, the duty is always the same, to


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conform to the legal standard of reasonable conduct in light of the apparent risk. What the

defendant must do, or must not do, is a question of the standard of conduct required to satisfy

the duty.” (Emphasis and internal quotation marks omitted.) Id.

                       “In an ordinary negligence case, the standard of care

               required of a defendant is to act as would an ordinarily careful

               person or a reasonably prudent person. [Citations.] ***

                       In contrast, in a professional negligence case, the standard

               of care required of a defendant is to act as would an ordinarily

               careful professional. [Citation.] Pursuant to this standard of

               care, professionals are expected to use the same degree of

               knowledge, skill and ability as an ordinarily careful professional

               would exercise under similar circumstances.” (Internal quotation

               marks omitted.) Jones, 191 Ill. 2d at 295.

¶ 21   Under Illinois law, a hospital may be found liable in a medical negligence case under

two separate and distinct theories: (1) liability for its own institutional negligence and (2)

vicarious liability for medical negligence of its agents or employees. Longnecker v. Loyola

University Medical Center, 383 Ill. App. 3d 874, 885 (2008). In institutional negligence cases

our supreme court has acknowledged that hospitals have an independent duty to assume

responsibility for the care of their patients. Jones, 191 Ill. 2d at 291 (citing Darling v.

Charleston Community Memorial Hospital, 33 Ill. 2d 326 (1965)). “Ordinarily, this duty is

administrative or managerial in character.” Id. (citing Advincula v. United Blood Services, 176

Ill. 2d 1, 28 (1996)). “To fulfill this duty, a hospital must act as would a reasonably careful


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hospital under the circumstances.” (Internal quotation marks omitted.) Id. t 291-92 (quoting

Advincula, 176 Ill. 2d at 29). The hospital’s liability is predicated on its own negligence, not

the negligence of its physician-agent or employee. Id. at 292. See also Advincula, 176 Ill. 2d at

30 (“the standard of care applied to hospitals in cases based on their vicarious liability for the

conduct of agent or employee medical professionals remains the standard applied to all

professionals, i.e., to use that same degree of knowledge, skill and ability as an ordinarily

careful professional would exercise under similar circumstances”).

¶ 22   The same character of institutional liability applicable to hospitals applies to nursing

homes. Thus, negligence by a nursing home is “the failure to do something that a reasonably

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

home] would not do, under circumstances similar to those shown by the evidence.” IPI Civil

(2006) No. 105.03.01. Plaintiff has no dispute with this statement of the standard of care

applicable to defendant; plaintiff’s arguments focus on whether the trial court should have

instructed the jury on the standard of care applicable to defendant’s professional nurses. The

trial court gave the jury both the institutional negligence instruction and the professional

negligence instruction tendered by each party. 2




2
         The instruction defendant tendered and the trial court gave also informed the jury that
to determine what the standard of care required in this case, the jury must rely on “opinion
testimony from qualified witnesses, evidence of professional standards, evidence of by-
laws/rules regulations/policies/procedures, and other sources.” Our supreme court held that
this version of the instruction does not accurately state the law because the instruction does
not reflect the necessity of expert testimony. Studt, 2011 IL 108182, ¶¶ 23, 28. However,
reversal is only warranted if the error resulted in “serious prejudice” to the appellant’s right to
a fair trial. Id. ¶ 28. We do not find that plaintiff suffered serious prejudice from the trial
court’s error. Both parties presented expert testimony on what the standard of care for

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¶ 23   A medical provider such as a hospital or nursing home may also be held responsible

for the conduct of its agents or employees who are medical professionals under the doctrine of

vicarious liability. Advincula, 176 Ill. 2d at 31. An employer’s vicarious liability extends to

the negligent, willful, malicious, or even criminal acts of its employees when such acts are

committed within the scope of the employment.” Bagent v. Blessing Care Corp., 224 Ill. 2d

154, 163-64 (2007). Where a medical provider is held responsible under a theory of vicarious

liability for the conduct of a medical-professional agent or employee, the medical provider’s

conduct is measured against a professional standard of care. Advincula, 176 Ill. 2d at 31.

Plaintiff argues the trial court committed two errors in instructing the jury. First plaintiff

argues the trial court abdicated its responsibility to decide what the law is when it gave two

conflicting instructions defining the standard of care applicable to defendant’s conduct.

Plaintiff’s second argument on appeal is that the trial court erred in instructing the jury as to

the wrong standard of care applicable to defendant’s conduct.

¶ 24                   1. Trial Court’s Duty to Instruct the Jury

¶ 25   Plaintiff argues that the instructions “confuse the nature of the defendant and

contradict the nature of plaintiff’s burden to prove the defendant was negligent.” Plaintiff

cites People v. Jenkins, 69 Ill. 2d 61, 66 (1977), for the general proposition that “it is the duty of

the court to inform the jury as to the law.” Further, it is the trial court’s duty “to give the

jury proper guidance, not to generate confusion.” Id. The Jenkins court wrote as follows:




professional nurses required in this case and the jury found in favor of defendant. Thus, the
inappropriate “expansiveness of the instruction could not have affected the outcome and
therefore worked no prejudice.” Id. ¶ 52 (Karmeier, J., specially concurring).

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               “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. While it is true that an instruction may be inaccurate,

               and other instructions may remove this error, such cannot be so

               when the instructions are in direct conflict with one another,

               one stating the law correctly and the other erroneously.” Id.

¶ 26   Plaintiff argues that the two instructions given in this case contradict in that “one

instruction requires the jury to base its verdict on expert opinion testimony; the other permits

it. [sic] One characterizes plaintiff’s action as against a nurse; the other as against a nursing

home.” When the instructions are compared to each other on their face, plaintiff’s former

argument has some merit. See Studt, 2011 IL 108182, ¶ 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.”). However, plaintiff’s latter argument ignores the fact that the

defendant in a case of this type--a nursing home--can be found liable based on both its own

negligence and the negligence of its nurse-agent.

¶ 27   In Studt, the hospital defendant in that case was defending against both “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).” Id. ¶ 29. The jury in that case was instructed on both

theories. Id. ¶ 46 (Karmeier, J., specially concurring). Our supreme court held that even


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though the 2006 professional negligence IPI did not accurately state the law, the hospital

defendant did not suffer prejudice. Id. ¶ 28. The court found that “[e]vidence of the standard

of care supporting both theories of recovery was introduced through expert testimony.” Id. ¶

29.

¶ 28   The concern in Studt was that the erroneous instruction created the possibility that a

medical doctor could be found liable for professional negligence based only on the violation of

a hospital rule or regulation. Id. ¶ 23. The court reasoned that the defendant hospital did not

suffer prejudice from the erroneous instruction because although “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.” Id. ¶ 29.

¶ 29   In its appropriate context, plaintiff’s argument fails because the instructions in this case

are not contradictory but coextensive statements of the law defining the standard of care that

must have been breached for defendant to be liable for Eleanor’s injuries. None of plaintiff’s

authorities are contradictory to this finding.

¶ 30   In Shehy v. Bober, 78 Ill. App. 3d 1061, 1070 (1979), this court found the giving of two

contradictory instructions constituted reversible error. There, one instruction given to the

jury said that the law presumed that the brother of a child decedent suffered a pecuniary loss

by reason of the death and the second instruction stated that there is no such presumption.

Id. at 1069. There was no dispute that only one instruction correctly stated the applicable


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law. Id. at 1069 n1. The Bober court also recognized that “instructions may supplement each

other, but each one must state the law correctly as far as it goes, and they should be in

harmony, so that the jury will not be misled. The jury are not able to select from

contradictory instructions one which correctly states the law. [Citations.]” (Internal

quotation marks omitted.) Id. at 1070 (quoting Bald v. Nuernberger, 267 Ill. 616, 620 (1915)).

The instructions at issue in Bober did not merely overlap and one incorrectly stated the law.

In that circumstance “jury confusion as to the applicable law is virtually inevitable.” Id. This

case is different because here the two instructions do supplement each other and each one is a

correct statement of the law.

¶ 31   The decision in Endurance Paving Co. v. Pappas, 117 Ill. App. 2d 81, 87-88 (1969), is

similarly distinguishable. The Pappas court found that it was prejudicially erroneous to give

the challenged instruction. Id. at 87. There, however, the challenged instruction contained an

incorrect statement of the law, removed an issue from the case, was peremptory in form,

failed to contain all the facts, was not complete within itself, and could not be cured by other

instructions in the series. Id. at 88. So too did the instruction in Gordon v. Checker Taxi Co.,

334 Ill. App. 313, 322 (1948), contain an incorrect statement of the applicable law. The

challenged instruction in Gordon informed the jury that the plaintiff had the burden to prove

that the defendant, a common carrier, “failed to exercise reasonable care at the time of the

alleged occurrence.” Id. at 321. The Gordon court noted that the duty on the part of a carrier

toward its passengers is to exercise the highest degree of care instead of reasonable care. Id. at

322. The Gordon court found that the error, “when combined with the prejudicial conduct of

counsel referred to [in that case], constitutes reversible error.” Id.


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¶ 32   Plaintiff’s reliance on these cases is misplaced because the challenged instruction in this

case is a correct statement of the law applicable in this case and suffers none of the other

defects found by the other courts. The jury was not misled as to the standard of care

applicable to the nursing home. The instruction states that the professional negligence

standard of care is applicable to its nurses and the instructions viewed as a whole properly

instruct the jury as to the standard of care applicable to the nursing home. Plaintiff’s

argument the trial court committed reversible error in giving both the institutional negligence

and professional negligence instructions fails because the instructions did not mislead the jury

and fairly and correctly stated the law where the evidence at trial supported a theory that

defendant was liable because either the institution or its professional employees were negligent

or both.

¶ 33   We find the Second District’s decision in Ellig v. Delnor Community Hospital, 237 Ill.

App. 3d 396 (1992), unpersuasive. There, the court held that the trial court committed error

by instructing the jury on theories of negligence based on vicarious liability as well as

institutional negligence. Id. at 413. The instructions in that case differed from the

instructions in this case in crucial respects. The institutional negligence instruction in that

case informed the jury that the hospital had a duty to exercise ordinary care and that ordinary

care means “the care a reasonably careful person would use under circumstances similar to

those shown by the evidence.” (Internal quotation marks omitted.) Id. at 411-12. The Ellig

court found that these instructions in combination “essentially instructed that professional

negligence results from a failure to exercise the care a reasonably careful person (layperson)

would use under circumstances similar to those shown by the evidence.” (Emphases omitted.)


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Id. at 412. The court found that “ordinary care should have been defined in terms of the care

a reasonably careful, similarly situated institution would exercise under circumstances similar

to those shown by the evidence.” Id. That was done in this case.

¶ 34     The Ellig court’s primary concern was that “the instructions, as they were given in the

present case, could create a situation where the professional negligence of the

defendant/hospital could be determined by looking to the actions of a layperson.” Id. at 413.

The Ellig court went on to find that a “similar source of jury confusion” could have resulted

from the trial court’s also instructing the jury as to professional negligence. Id. The court

found:

                “Prejudice also resulted from the failure to provide the jury with

                instructions that clearly identified the theories of plaintiffs’

                requested relief. The first asserts defendant’s liability based upon

                its administrative failure ***. The second theory asserts that

                defendant was vicariously liable through the actions of its

                medical staff. When different theories of relief are requested, the

                jury should be more clearly informed about which standards

                apply to which theory of recovery so that they are not misled.”

                Id. at 414.

¶ 35     We find Ellig distinguishable because in this case, the jury was more clearly informed

about which standard applied to which theory of recovery. Unlike in Ellig, the jury was not

led to believe that the institution was under two distinctly different duties. Id. at 413. The

instruction in Ellig read as follows:


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               “In providing professional services to [decedents], hospital

               personnel must possess and apply the knowledge and use the skill

               and care ordinarily used by reasonably well-qualified hospital

               personnel practicing under the circumstances similar to those

               shown by the evidence.” (Emphases added and internal

               quotation marks omitted.) Id.

¶ 36   In this case, the professional negligence instruction specifically informed the jury of

the standard of care applicable to nurses. The potential for confusion between the evidence of

the institution’s negligence and the evidence of the nurses’ negligence was thereby eliminated.

The court has recognized that institutions such as defendant are “an amalgam of many

individuals not all of whom are licensed medical practitioners *** [and] it is clear that at times

a hospital functions far beyond the narrow sphere of medical practice.” (Internal quotation

marks omitted.) Advincula, 176 Ill. 2d at 33. The instruction in Ellig failed to recognize the

distinction between those different functions and fostered confusion as to the standard of care

applicable to each. Here, the instruction was sufficiently specific to avoid such confusion

while giving credence to the different theories of liability to which defendant is indisputably

subjected for negligence toward its residents: both institutional and professional. See

Longnecker, 383 Ill. App. 3d at 885 (“In medical negligence cases, a hospital may face liability

under two separate and distinct theories: (1) vicarious liability for the medical negligence of

its agents or employees; and (2) liability for its own institutional negligence.”). We find the

use of both instructions was not inherently misleading in this case.




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¶ 37    Based on testimony by plaintiff’s nurse expert, the jury could have found that

defendant’s nurses violated their duty to Eleanor and, based on that finding as to defendant’s

nurses, found defendant liable for her injuries under the Nursing Home Care Act. If

defendant’s liability could be based on its nurses’ breach of their duties, then defendant was

entitled to have the jury instructed on its nurses’ standard of care. Plaintiff’s assertion that

nowhere in any of plaintiff’s experts’ testimony is the “nursing standard of care” mentioned

or described is based on a myopic view of the record. Daugherty testified repeatedly about

what defendant’s nurses were required to do. She described the nurses as the “front line” that

should have triggered the institutional response plaintiff complains was lacking. She also

opined that it would be a “nursing judgment” to alter or to suggest altering Eleanor’s meals.

We cannot find that the evidence does not support a theory of professional negligence in this

case. Therefore, giving the professional negligence instruction was not an abuse of discretion.

¶ 38    Plaintiff’s second argument on appeal challenges the relevance of defendant’s nurses’

alleged professional negligence in this case and, thus, the propriety of instructing the jury as to

same.

¶ 39                   2. Propriety of Professional Negligence Instruction

¶ 40    Plaintiff’s second argument is premised on plaintiff’s assertion that “respondeat superior

was not an element of plaintiff[’s] proof.” From that premise plaintiff argues that the trial

court committed reversible error in giving an instruction for a different kind of defendant

with substantially different standards of care. Specifically, plaintiff asserts that the fact

defendant is a corporation that acts through its employees, and that some of these employees

are nurses, “does not transform a nursing home case into a ‘professional negligence’ matter.”


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Nor, plaintiff argues, does the fact that evidence of the institution’s negligence comes from

doctors and nurses convert a claim of institutional negligence into a professional negligence

claim. Plaintiff further asserts that his experts’ testimony on the nursing home standard of

care “does not entitle the defendant to recast the nature of plaintiff’s case and for the jury to

be instructed with inapplicable jury instructions.”

               “Each party has the right to have the jury clearly and fairly

               instructed upon each theory that was supported by the evidence.

               [Citation.] It is within the trial court’s discretion to determine

               what issues are raised by the evidence and whether an instruction

               should be given. [Citation.] To determine the propriety of a

               tendered instruction, we consider whether the jury was fairly,

               fully, and comprehensively informed as to the relevant principles

               considering the instructions as a whole. [Citation.]” (Internal

               quotation marks omitted.) Brax v. Kennedy, 363 Ill. App. 3d 343,

               351 (2005).

¶ 41   Plaintiff argues that an institution such as defendant has a direct institutional duty to

the patient that does not implicate individual standards of care. That statement is factually

correct on its face. Jones, 191 Ill. 2d at 298 (“the tort of institutional negligence ‘does not

encompass, whatsoever, a hospital’s responsibility for the conduct of its *** medical

professionals’ ” (quoting Advincula, 176 Ill. 2d at 31)). In the context of plaintiff’s argument

that the trial court erred in instructing the jury as to the professional negligence standard of

care, however, plaintiff’s statement is misleading. While the institutional standard of care is


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separate and distinct from the professional standard of care, based on the evidence in this case

plaintiff exposed defendant to liability for a breach of either standard of care. Longnecker, 383

Ill. App. 3d at 885. Plaintiff’s evidence at trial exposed defendant to liability for its nurses’

alleged breach of the standard of care applicable to them regardless of whether plaintiff’s

complaint can be read to specifically allege professional negligence or not. See id. at 888

(rejecting defendant’s claim institutional negligence claim was time barred where allegations in

complaint put defendant on notice of institutional negligence theory of liability despite fact

complaint did not expressly assert an institutional negligence claim). Thus, plaintiff’s attempt

to distinguish Studt on the grounds that in that case “the plaintiff explicitly sought to hold the

hospital vicariously liable for the negligence of its emergency room physician” must fail.

¶ 42   Plaintiff argues he sought recovery for institutional negligence and “plaintiffs are

masters of their complaint and are entitled to proceed under whichever theory they decide, so

long as the evidence supports such a theory.” Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d

712, 718 (1998). The decision in Reed does not suggest plaintiff suffered prejudice from the

trial court’s instructions to the jury. In Reed, the plaintiffs requested a general negligence

instruction, and the defendant requested a premises liability instruction that required the

plaintiffs to prove that the defendant had actual or constructive knowledge of a dangerous

condition on the defendant’s property. Id. at 714. The Reed court held that the trial court

abused its discretion in refusing the plaintiffs’ instruction and requiring them to prove “an

additional and unnecessary element to their cause of action.” Id. at 718. The plaintiffs’

complaint in Reed seemed to allege both an ordinary negligence cause of action and a premises

liability cause of action. Id. at 717. The Reed court found that the plaintiffs presented


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evidence to support their general negligence theory and were entitled to proceed with that

theory. Id. at 718.

¶ 43   The court’s decision in Smart v. City of Chicago, 2013 IL App (1st) 120901, is similarly

distinguishable. In Smart, this court held that it would have been an abuse of discretion to

give the defendant’s tendered premises liability instruction where the plaintiff’s complaint

sounded in negligence and not premises liability. Id. ¶¶ 47, 55. The basis of the defendant’s

contention that the trial court should have given the premises liability instruction was that the

defendant was not engaged in an “activity” on the property where the plaintiff was injured

and therefore the plaintiff was improperly relieved of the burden of proving all of the

elements necessary to impose liability on a landowner for an unreasonably dangerous

condition on the landowner’s property. Id. ¶¶ 46, 50. This court rejected the defendant’s

arguments finding that it was “uncontroverted that the City’s conduct created the hazard that

caused Smart’s injuries.” Id. ¶ 55. The Notes on Use of the rejected instruction in that case

stated that “ [i]f the action alleges that an activity on the premises caused the injury *** use IPI

20.01 and IPI B10.03, ” which is what the trial court did. (Emphases omitted.) Id. ¶ 49

(quoting Illinois Pattern Jury Instructions, Civil, No. 120.08, Notes on Use (2006)). Thus,

this court held that “[t]he trial court properly adhered to the guidance dictated by the Notes

on Use for IPI Civil (2006) No. 120.02 and IPI Civil (2006) No. 120.08 and did not err in

tendering duty and burden of proof instructions applicable to general negligence cases.” Id. ¶

57.

¶ 44   In Smart, the proffered instruction did not apply to the plaintiff’s claim and, like Reed,

giving the requested instruction would have required the plaintiff to prove “an additional and


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unnecessary element to their cause of action.” Reed, 298 Ill. App. 3d at 718. In this case, the

trial court’s instructions did not prevent plaintiff from proceeding under his chosen theory of

institutional negligence. The court in this case did not refuse the institutional negligence

instruction; but the evidence adduced at trial also supported a theory of defendant’s liability

based on the professional negligence of its staff. Defendant was entitled to have the jury

instructed on those principles of law. Brax, 363 Ill. App. 3d at 351.

¶ 45   We interpret plaintiff’s argument that the conduct of which he complained “does not

implicate medical judgment of defendant’s staff, but rather the failure to deliver all the services

and resources [defendant] represented were available,” and, therefore, “instructing the jury on

the professional standard of care was error,” as an attempt to preempt our finding that his

evidence encompassed defendant’s potential vicarious liability for its nurses’ professional

negligence. In support, plaintiff cites Advincula, 176 Ill. 2d at 28, in which our supreme court

wrote that it has “recognized a new and independent duty of hospitals to review and supervise

the treatment of their patients that is administrative or managerial in character.” Advincula,

176 Ill. 2d at 28. The Advincula court cited Johnson v. St. Bernard Hospital, 79 Ill. App. 3d 709,

718 (1979), for its holding that the duty imposed on hospitals in this context does not require

medical expertise but administrative expertise to enforce rules and regulations adopted to

ensure a smoothly run hospital and adequate patient care. Advincula, 176 Ill. 2d at 28-29

(quoting St. Bernard Hospital, 79 Ill. App. 3d at 718).

¶ 46   Nothing in Advincula diminishes the duality of defendant’s potential liability. The

Advincula court held that an institution fulfilling its individual duty “must conform to the

legal standard of ‘reasonable conduct’ in light of the apparent risk” but that the standard of


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care in cases based on vicarious liability for the conduct of agent or employee medical

professionals remains the standard applied to all professionals. Advincula, 176 Ill. 2d at 29-30.

On appeal, plaintiff has not discussed or suggested that the evidence did not support the

theory that defendant was potentially vicariously liable for the professional negligence of its

nurses and for that reason defendant was not entitled to its instruction. Compare Myers v.

Heritage Enterprises, Inc., 354 Ill. App. 3d 241, 248 (2004) (holding trial court abused its

discretion by instructing the jury on professional negligence rather than ordinary negligence

where conduct resulting in injury was performed solely by certified nursing assistants and

finding that given the minimal training requirements and that nursing assistants provide

primarily personal care the position is not a professional position requiring the professional

negligence instruction). There is no requirement that the professional employee be named a

party in a claim against the institution based on vicarious liability. See generally Studt, 2011

IL 108182, ¶ 5; McCottrell v. City of Chicago, 135 Ill. App. 3d 517, 519 (1985) (“the servant is

not a necessary party in an action against the master”).

¶ 47   Defendant had an independent right to have the jury fully and properly instructed on

each theory of liability supported by the evidence. Brax, 363 Ill. App. 3d at 351-52. See also

Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 101 (1995) (“All that is required to

justify the giving of an instruction is that there be some evidence in the record to justify the

theory of the instruction.” (Internal quotation marks omitted.) (quoting Lowe v. Norfolk &

Western Ry. Co., 124 Ill. App. 3d 80, 118 (1984))). We find no error in the trial court’s giving

of dual instructions on institutional negligence and professional negligence. Accordingly, the

trial court’s judgment on the jury’s verdict in favor of defendant is affirmed.


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¶ 48                                   CONCLUSION

¶ 49   For the foregoing reasons, the trial court’s judgment on the jury’s verdict in favor of

defendant is affirmed.

¶ 50   Affirmed.




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