                                               FIRST DIVISION
                                               June 25, 2008




No. 1-06-1536


CONNIE LONGNECKER, Individually and as    )    Appeal from the
Special Administrator of the Estate of    )    Circuit Court of
CARL LONGNECKER, Deceased,                )    Cook County.
                                          )
          Plaintiff-Appellant,            )
                                          )
     v.                                   )    No. 02 L 007989
                                          )
LOYOLA UNIVERSITY MEDICAL CENTER, and     )
SIRISH PARVATHANENI, M.D.,                )    The Honorable
                                          )    Irwin J. Solganick,
          Defendants-Appellees.           )    Judge Presiding.



     JUSTICE GARCIA delivered the opinion of the court.

     Connie Longnecker, individually and as special administrator

of the estate of her husband Carl Longnecker, filed suit against

Dr. Sirish Parvathaneni and Loyola Medical Center, after Mr.

Longnecker died following an unsuccessful heart transplant.

During the procedure, Mr. Longnecker received a diseased

"hypertrophic heart."   He died four days later, never regaining

consciousness.

     Dr. Parvathaneni acted as the "procuring" or "harvesting"

surgeon during the transplant.    At trial, the plaintiff presented

two theories of liability: (1) Dr. Parvathaneni, as an agent of
No. 1-06-1536


Loyola, committed professional negligence where he failed to

properly test and visually inspect the donor heart, and failed to

diagnose it as having significant left ventricular hypertrophy

and coronary artery disease; and, (2) Loyola committed

institutional negligence by failing to ensure that Dr.

Parvathaneni understood his role as a procuring surgeon.    The

jury found in favor of Dr. Parvathaneni and Loyola on the

professional negligence claim.    The jury found against Loyola on

the institutional negligence claim and awarded the plaintiff $2.7

million.

     Loyola filed a posttrial motion in which it argued it was

entitled to judgment notwithstanding the verdict (judgment

n.o.v.), or, in the alternative, a new trial, because (1) the

plaintiff failed to plead institutional negligence, (2) the

plaintiff failed to produce expert testimony to support

institutional negligence, (3) the plaintiff failed to establish

breach, (4) the plaintiff failed to establish causation, and (5)

the verdicts were inconsistent.   The circuit court found the

verdict in favor of Dr. Parvathaneni to be irreconcilable with

the verdict against Loyola, reasoning if Dr. Parvathaneni had not

been negligent, Loyola's failure to ensure he understood his role

could not have been the proximate cause of Mr. Longnecker's

death.   Therefore, the court decided the verdicts were

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No. 1-06-1536


inconsistent.   The court vacated the verdict against Loyola and

entered judgment for Loyola.

     The plaintiff contends on appeal that the jury's verdicts

are not inconsistent.   She alternatively argues that if the

verdicts are inconsistent, the proper remedy is to order a new

trial on both causes of action.

     Dr. Parvathaneni agrees the verdicts are not inconsistent.

In his brief, he points to the "wholly separate theories of

liability against Loyola as principal of Dr. Parvathaneni and

[liability against] Loyola for institutional negligence," to

which two separate standards of care apply.

     Loyola's brief intimates that we need not determine whether

the verdicts are inconsistent if the circuit court's grant of

judgment n.o.v. is proper for other reasons.    Loyola focuses on

the circuit court's finding that proximate cause was precluded

based on the verdict in favor of Dr. Parvathaneni to contend the

judgment n.o.v. was proper.    Loyola also argues the judgment

n.o.v. was proper because the plaintiff failed to establish the

element of breach, and because the institutional negligence claim

was barred by the statute of limitations.   In the alternative,

Loyola argues the circuit court correctly found the verdicts to

be inconsistent.   Loyola concedes that if the verdicts are

inconsistent, the proper remedy is to order a new trial on both

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No. 1-06-1536


claims.

     For the reasons that follow, we hold the verdicts in this

case are not inconsistent, and that no other basis supports the

grant of judgment n.o.v.   We therefore reverse the decision of

the circuit court of Cook County, and remand for further

proceedings.

                            BACKGROUND

     Carl Longnecker suffered from numerous coronary ailments,

and, by age 58, had suffered three heart attacks.

     In 2000, Mr. Longnecker became a patient of Dr. George

Mullen, a cardiologist at Loyola.     Dr. Mullen told Mr. Longnecker

he needed a heart transplant, and placed his name on a donation

waiting list.

     By 2001, Mr. Longnecker's condition worsened.    His "status"

on the donation waiting list went from "2 class" to "1B class,"

moving his name up the list.    His chance of surviving one year

without a transplant was 30%.

     On June 11, 2001, Mr. Longnecker was informed a potential

donor heart had been located.    He went to Loyola and was prepared

for surgery.

           A.   Loyola Heart Transplantation Procedures

     Loyola uses a team approach to heart transplantations.    The

Loyola transplant team consists of a nurse coordinator and three

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No. 1-06-1536


doctors: the transplant cardiologist, the procuring surgeon, and

the transplant surgeon.

     The Regional Organ Bank of Illinois (ROBI) also plays a role

in Loyola's heart transplantations.   When a potential donor is

declared brain dead, ROBI gathers information about the donor,

including gender, age, and weight, the cause of death, and

whether the donor smoked, drank alcohol, or used narcotics.    ROBI

may also order diagnostic tests of the donor's heart.   ROBI then

passes any relevant information to Loyola's nurse coordinator,

who briefs the transplant cardiologist.

     The transplant cardiologist first makes an evaluation, based

on the donor's history and the results of any tests, to

preliminarily accept or decline the heart.   If the heart is

preliminarily accepted, the procuring surgeon goes to the donor

hospital, where he or she opens the donor's sternum and visually

inspects the heart and feels it for defects.   Next, the procuring

surgeon makes the "final phone call" where he or she reports the

findings to the transplant surgeon, who decides whether to accept

or reject the heart.   If the heart is accepted, the procuring

surgeon "cross-clamps" the donor heart, cutting off the blood

supply, and flushes it with a preservative solution.    The heart

is transported to Loyola, where the transplant surgeon, who has

removed the patient's "native" heart, transplants the donor

                                 5
No. 1-06-1536


heart.

     Time is of the essence in heart transplantations.     A

preserved heart can remain viable for approximately four hours

after being removed from the donor's body.    Thus, the removal of

the donor heart and its transport to the recipient hospital must

be carefully coordinated with the removal of the recipient's

native heart.

           B.     The Heart Transplantation in this Case

     In this case, the nurse coordinator was Penny Pearson.      Dr.

Mullen was the transplant cardiologist.    The defendant, Dr.

Parvathaneni, was the procuring surgeon, and Dr. Foy, the

surgical director of the Loyola transplant team, was the

transplant surgeon.

     The donor was a 46-year-old male who was declared brain dead

at Good Samaritan Hospital.    The donor's family informed ROBI he

smoked cigarettes and marijuana and drank alcohol regularly, and

that he may have used cocaine.    The family also revealed the

donor was diagnosed with hypertension (high blood pressure) in

September 2000.    He was "noncompliant" with treatment, meaning he

did not take medication regularly.

     Based on the donor's history, ROBI ordered diagnostic tests,

including an echocardiogram, the "gold standard" test for left

ventricle hypertrophy (the enlargement of the heart wall), and an

                                  6
No. 1-06-1536


angiogram, the "gold standard" test for coronary artery disease

(plaque in the arteries).   The donor's level of troponin, a

substance that may be indicative of damaged heart muscle, was

also measured.

     The echocardiogram revealed the donor's left ventricle

measured 1.2 centimeters, meaning he suffered from "mild" left

ventricle hypertrophy.   The angiogram revealed "mild" coronary

artery disease.   The donor's troponin level was elevated.

     ROBI contacted Pearson with the above information.    Pearson

then contacted Dr. Mullen, who, after evaluating the

echocardiogram and angiogram, and after discussing the matter

with Dr. Foy, preliminarily accepted the heart.   Dr. Parvathaneni

then went to Good Samaritan in order to "visualize" the heart,

that is, to inspect it for congenital abnormalities and to

confirm the findings of the echocardiogram and angiogram.    Dr.

Parvathaneni did not have any concerns about plaque or

hypertrophy in the heart.   Dr. Parvathaneni called Dr. Foy and

told him the heart "look[ed] good" and was "suitable for

transplantation" from a surgical aspect.   Dr. Foy accepted the

heart.

     At 7:10 a.m., Dr. Parvathaneni cross-clamped the donor's

heart, and removed it at 7:30 a.m.   By 7:40 a.m., the heart was

in route to Loyola, where it arrived at 8:10 a.m.

                                 7
No. 1-06-1536


     At 7:48 a.m., while the donor heart was on its way to

Loyola, Dr. Foy placed Mr. Longnecker on a bypass machine.        At

8:28 a.m., Mr. Longnecker's native heart was cross-clamped and

removed.   When Dr. Foy removed the donor heart from its

container, he immediately saw and determined by touch that it

suffered from left ventricular hypertrophy and coronary artery

disease.   Dr. Foy wrote "Hypertrophic heart!" in his operative

note because the amount of hypertrophy was more than he expected

based on the results of the echocardiogram.       Nevertheless, Dr.

Foy determined the heart was suitable for transplant, and

transplanted it.   The heart, however, never functioned, and, on

June 15, 2001, Mr. Longnecker died.       Had Mr. Longnecker survived,

his name would have been placed back on the heart donation

waiting list.

     An autopsy revealed the donor heart weighed 492 grams,

whereas a normal heart weighs 300 grams.       The heart's left

ventricle measured two centimeters in thickness, indicating

"severe" hypertrophy.   The heart also exhibited "moderate to

severe" coronary artery disease.       The cause of death was

determined to be acute myocardial infarction, with left ventricle

hypertrophy being an indirect contributing cause.

                          C.   Litigation

     On June 24, 2002, the plaintiff filed a three-count

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No. 1-06-1536


complaint against Loyola and Dr. Parvathaneni, alleging medical

negligence and wrongful death, and seeking recovery under the

Family Expense Act (750 ILCS 65/15 (West 2002)).        The plaintiff

alleged that Loyola, by and through its agent, Dr. Parvathaneni:

                 "a.    Failed to perform appropriate

          testing of the donor heart;

                 b.    Failed to perform appropriate visual

          inspections of the donor heart;

                 c.    Fail[ed] to diagnose significant

          left ventricle hypertrophy in the donor heart

          prior to transplantation;

                 d.    Fail[ed] to diagnose significant

          coronary artery disease in the donor heart

          prior to transplantation; [and]

                 e.    Otherwise deviated from the standard

          of care."

     On June 10, 2003, the plaintiff filed an amended complaint

in which she named as additional defendants others involved in

the transplantation.     Prior to trial, the additional defendants

were either granted summary judgment or voluntarily dismissed

from the case.   The allegations against Loyola and Dr.

Parvathaneni were the same in both complaints.     Neither complaint

expressly based Loyola's liability on institutional negligence.

                                    9
No. 1-06-1536


     On November 29, 2005, one day prior to trial, Loyola filed a

motion in limine seeking to bar the plaintiff from presenting

evidence of Loyola's institutional negligence because (1) the

plaintiff's complaint did not allege institutional negligence,

(2) any institutional negligence claim would be time barred, and

(3) the plaintiff's expert, Dr. James Avery, lacked the

appropriate foundation for his testimony regarding institutional

negligence.    The circuit court denied the motion.

     On November 30, 2005, the trial commenced.    Dr. Foy

testified that he trained Dr. Parvathaneni, who had been a

cardiac fellow at Loyola, to procure hearts for transplantation.

Dr. Foy was "quite satisfied" that Dr. Parvathaneni both knew and

understood his responsibilities in terms of procuring hearts.

Thus, Dr. Parvathaneni remained on Loyola's staff after his

fellowship completed.

     Because Loyola used a team approach to organ procurement,

each team member was required to know his or her role and perform

that role.    According to Dr. Foy, in Loyola's system, the

procuring surgeon evaluates the donor heart and is involved in

making decisions regarding its suitability for transplant; the

procuring surgeon does more than simply remove the heart from the

donor's body.    The procuring surgeon is responsible for (1)

gathering and reviewing all of the available information about

                                 10
No. 1-06-1536


the donor, (2) reviewing any echocardiograms and angiograms, (3)

visually inspecting the heart for trauma or abnormalities and

confirming or denying any abnormalities noted on the

echocardiogram or angiogram, and (4) feeling the heart.    Dr. Foy

did not specify whether the procuring surgeon is required to feel

the heart prior to cross-clamp, or whether the examination need

be performed after removal.   Dr. Foy's "final decision" to accept

or reject the heart is based in large part on the procuring

surgeon's findings.

     In this case, by the time Dr. Foy removed the donor heart

from its container, he had already removed Mr. Longnecker's

native heart.   From the moment Dr. Foy held the donor heart, he

knew it had "significant" hypertrophy.    Dr. Foy, however, decided

to proceed with the transplant.    Although Dr. Foy's deposition

testimony indicated that "at the time *** the donor heart[] is

brought on to the operative field the die is cast, you have no

choice but to implant that heart," he testified at trial that he

had the option of using "a Jarvick type, total artificial heart."

     Dr. Parvathaneni, who is triple board certified in general

surgery, critical care, and cardiothoracic surgery, testified

that when he arrived at Good Samaritan to procure the heart, he

knew Drs. Foy and Mullen had already reviewed the results of the

echocardiogram and angiogram, and that Dr. Mullen had "evaluated

                                  11
No. 1-06-1536


[the] heart and cleared it for transplant."    Dr. Parvathaneni

testified he also reviewed the echocardiogram and angiogram as

part of his duties.

     Dr. Parvathaneni distinguished between two potential roles

of a Loyola transplantation team member: evaluating a heart for

transplant and examining a heart to be transplanted.    He

testified it was his duty as the procuring surgeon to examine a

heart to be transplanted, not to evaluate a heart for transplant.

He did not consider himself capable of evaluating a heart for

transplant.

     According to Dr. Parvathaneni, Loyola's standard practice

required procuring surgeons to visually examine the heart and

manually assess it for hypertrophy and coronary artery disease

before removing the organ.   Pursuant to this practice, Dr.

Parvathaneni visually inspected the heart while it remained in

the donor's chest and felt it for plaque and hypertrophy.     He

could not recall whether he could feel more hypertrophy or plaque

in the heart then indicated in the echocardiogram or angiogram

when he placed it in its container.

     Dr. Parvathaneni acknowledged that hypertrophy can most

easily be felt after the heart is removed.    However, Dr.

Parvathaneni testified he was not trained to manually inspect the

heart after removal.   Rather, he was trained "to bring the organ

                                12
No. 1-06-1536


as fast as [he] could."    Dr. Parvathaneni explained, "Once we are

told to take the heart, we take the heart, bag it up and send it.

Time is of the essence, and they're expecting the organ [at

Loyola]."

     Dr. Mullen, the transplant cardiologist, testified he was

aware the donor was 46 years old and had a history of

uncontrolled hypertension.   He was also aware the donor suffered

from "mild" hypertrophy and "mild" coronary artery disease.    In

his opinion, it was proper to accept a heart with these

conditions.   Dr. Mullen took "full responsibility" for accepting

the donor heart in this case.

     Dr. Avery, a cardiovascular surgeon from the California

Pacific Medical Center, gave expert testimony on behalf of the

plaintiff.    Prior to testifying, Dr. Avery reviewed depositions

from Drs. Foy, Mullen, and Parvathaneni, which served as the

bases for his opinions.

     In Dr. Avery's opinion, the standard of care required Dr.

Parvathaneni to review the patient's medical and social history,

the echocardiogram and angiogram, to see and feel how the heart

worked in the donor's chest, and to come to a conclusion

regarding whether to accept the heart.   Dr. Parvathaneni's

deposition testimony, however, indicated he did not believe he

was required to evaluate the heart at all; rather, he was sent to

                                 13
No. 1-06-1536


Good Samaritan "to get the heart and bring it back."      Dr.

Parvathaneni's deposition testimony was in conflict with

deposition testimony given by Drs. Foy and Mullen that described

Dr. Parvathaneni's role as "enormous" in the evaluation of the

heart.

     According to Dr. Avery, Dr. Parvathaneni deviated from the

standard of care by being unaware of "significant historical

items" related to the donor, including his history of

uncontrolled hypertension, history of cigarette smoking, and

potential cocaine use.    Dr. Parvathaneni also deviated from the

standard of care by failing to perform a physical examination of

the donor heart after the heart was removed.    If Dr. Parvathaneni

had done so, he would have found what Dr. Foy later found: "a

thick heart of significant hypertrophy and considerable plaque in

the coronaries."

     Dr. Avery additionally testified the standard of care

required Dr. Parvathaneni to understand his role in the

transplant as viewed by the other team members.      However, Dr.

Parvathaneni's deposition testimony indicated he failed to

understand his role, in deviation of the standard of care.

     Regarding Loyola, Dr. Avery testified:

                "Q.   And in regards to the Loyola

          transplant team did the standard of care

                                 14
No. 1-06-1536


          require that they--did they have any

          responsibility under the standard of care to

          make sure that Dr. Parvathaneni understood

          his role if they were going to send him to

          get a heart?

                A.   Yes.

                Q.   And did Loyola deviate from the

          standard of care in that regard?

                MR. PATTERSON [Counsel for Loyola]:

          Objection your Honor, motion in limine.

                THE COURT: Overruled.

                A. [Dr. Avery]:   In this regard I

          believe they did.

                Q.   In what manner?

                A.   Well, basically everybody needs to

          be on the same page in terms of what each

          team member's role is in the team."

     In Dr. Avery's opinion, had Dr. Parvathaneni fulfilled his

responsibilities pursuant to the standard of care, and had Loyola

fulfilled its responsibilities in ensuring Dr. Parvathaneni knew

his role, the heart would not have been transplanted.

     Dr. Robert Higgins, the chairman of cardiovascular and

thoracic surgery and the director of the Heart Transplant and

                                  15
No. 1-06-1536


Mechanical Assist Device Program at Rush University Medical

Center, testified as an expert on behalf of Loyola.    Dr.

Higgins's opinion, to a reasonable degree of scientific

certainty, was that the donor heart was suitable for

transplantation.    The echocardiogram showed only mild

hypertrophy, the angiogram showed only mild coronary artery

disease, and the donor's possible cocaine use was not a factor in

the donor's death.    The heart was also visually suitable for

transplantation.    Dr. Higgins, however, testified he would not

transplant a heart with two-centimeter hypertrophy and severe

coronary artery disease.

     Dr. Alfred Carl Nicolosi testified as an expert on behalf of

Dr. Parvathaneni.    According to Dr. Nicolosi, Dr. Parvathaneni

complied with the standard of care in his role as a procuring

surgeon because he reviewed the echocardiogram and the angiogram,

and conducted a visual inspection and physical examination of the

heart.   According to Dr. Nicolosi, the donor heart was acceptable

for transplant, and none of Dr. Parvathaneni's actions caused Mr.

Longnecker's death.    According to Dr. Nicolosi, the left

ventricle of the donor heart measured two centimeters at the

autopsy because of swelling, not because of hypertrophy.

     At the jury instruction conference, Loyola unsuccessfully

objected to instructions on Loyola's institutional negligence.

                                 16
No. 1-06-1536


The jury was instructed, in part:

                "The plaintiff claims that Carl

          Longnecker died and that defendants Dr.

          Parvathaneni and Loyola *** were negligent in

          one or more of the following respects: Failed

          to properly evaluate the donor heart; failed

          to perform an appropriate physical

          examination of the donor heart; failed to

          communicate significant problems with the

          donor heart after physical examination; and

          failed to reject the donor heart for

          transplantation.

                The plaintiff further claims that

          defendant Loyola *** was negligent in one or

          more of the following respects: Failed to

          ensure that Dr. Parvathaneni understood his

          role as a procuring surgeon.

                Negligence by a hospital is the failure

          to do something that a reasonably careful

          hospital would do or the doing of something

          that reasonably careful hospital would not do

          under the circumstances similar to those

          shown by the evidence.

                                17
No. 1-06-1536


                  The law does not say how a reasonably

           careful hospital would act under the

           circumstances, that is for you to decide."

     The jury was not instructed that it could return a verdict

in favor of Dr. Parvathaneni only if it also found in favor of

Loyola.   In fact, the jury instructions allowed the jury to find

the way it did.

     After initially indicating it could not reach a verdict, the

jury found for Dr. Parvathaneni and Loyola on the professional

negligence claim, and against Loyola on the institutional

negligence claim.    The jury assessed $2.7 million in damages.

     On Loyola's motion for judgment n.o.v., the circuit court

found the verdicts inconsistent, and vacated the verdict against

Loyola.   The circuit court stated:

                  "If the institutional negligence in this

           case is based specifically on the conduct of

           Dr. Parvathaneni in that he did not

           understand what his role was and was not--and

           that Loyola did not make sure he understood

           his role, well, if the jury found that he

           wasn't negligent, then, you know, there was

           nothing wrong with what he did and whether he

           personally did not understand his role or

                                  18
No. 1-06-1536


          whether Loyola didn't see that he understood

          his role doesn't matter.     He didn't do

          anything that caused harm to [Mr.

          Longnecker].

                If his actions were not a proximate

          cause of injury to Mr. Longnecker, even if he

          was negligent, then if anything that he did

          didn't cause Mr. Longnecker's death, then,

          you know, the failure by Loyola to see that

          he understood what he was doing or knew what

          he was doing doesn't really matter.     Nothing

          he did was the cause of the injury to Mr.

          Longnecker.    So they really are

          inconsistent."

     The court entered judgment in favor of both defendants.

This timely appeal followed.

                               ANALYSIS

     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.       Darling v.

Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211

N.E.2d 253 (1965), cert. denied, 383 U.S. 946, 16 L. Ed. 2d 209,

                                  19
No. 1-06-1536


86 S. Ct. 1204 (1966).

     In a professional negligence case, the standard of care

requires the defendant to act with "the same degree of knowledge,

skill and ability as an ordinarily careful professional would

exercise under similar circumstances."       Advincula v. United Blood

Services, 176 Ill. 2d 1, 23, 678 N.E.2d 1009 (1996).       Generally,

"expert testimony is necessary in professional negligence cases

to establish the standard of care."       Snelson v. Kamm, 204 Ill. 2d

1, 43-44, 787 N.E.2d 796 (2003).       "[E]xpert testimony is needed

*** because jurors are not skilled in the practice of medicine

and would find it difficult without the help of medical evidence

to determine any lack of necessary scientific skill on the part

of the physician."   Walski v. Tiesenga, 72 Ill. 2d 249, 256, 381

N.E.2d 279 (1978).

     Institutional negligence involves an analogous standard of

care; a defendant hospital is judged against what a reasonably

careful hospital would do under the same circumstances.      Illinois

Pattern Jury Instructions, Civil, No. 105.03.01 (1995).      See

generally Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278,

294-99, 730 N.E.2d 1119 (2000).    Under this theory of liability,

however, "the standard of care *** may be shown by a wide variety

of evidence, including, but not limited to, expert testimony,

hospital bylaws, statutes, accreditation standards, custom and

                                  20
No. 1-06-1536


community practice."   Jones, 191 Ill. 2d at 298.    "[T]he

institutional negligence of hospitals can also be determined

without expert testimony in some cases."     Jones, 191 2d at 296.

     The concept of proximate cause is the same under

professional and institutional negligence.    However, consistent

with the help lay jurors need "to determine any lack of necessary

scientific skill on the part of the physician" (Walski, 72 Ill.

2d at 56), "[t]he proximate cause element of a medical

malpractice case must be established by expert testimony to a

reasonable degree of medical certainty."     (Emphasis added.)

Krivanec v. Abramowitz, 366 Ill. App. 3d 350, 356-57, 851 N.E.2d

849 (2006).   We are aware of no authority that imposes a similar

rule that proximate cause be established to a reasonable degree

of medical certainty in an institutional negligence case.

However, an institutional negligence case may present where

professional and institutional standards of care are so

intertwined that proximate cause is required to be shown to a

reasonable degree of medical certainty.    The case before us is

not such a case.   Nor does Loyola contend otherwise.

     In this case, the jury rejected the plaintiff's contention

that Dr. Parvathaneni (and, vicariously, Loyola) was

professionally negligent.   The plaintiff does not challenge this

finding on appeal.   The jury accepted the plaintiff's contention

                                21
No. 1-06-1536


that Loyola was institutionally negligent.   The circuit court,

however, concluded the jury's findings were inconsistent, granted

Loyola's motion for judgment n.o.v., and vacated the verdict.

The plaintiff challenges this ruling.

     A motion for judgment n.o.v. should be entered "only in

those cases in which all of the evidence, when viewed in its

aspect most favorable to the opponent, so overwhelmingly favors

movant that no contrary verdict based on that evidence could ever

stand."   Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,

510, 229 N.E.2d 504 (1967).   Our standard of review is de novo.

York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d

147, 178, 854 N.E.2d 635 (2006).

                   I.   Institutional Negligence

     In support of affirming the trial court's decision, Loyola

puts forth three arguments: (1) the jury should not have

considered the institutional negligence claim because the claim

was time barred; (2) judgment n.o.v. was proper because the

plaintiff failed to establish breach; and, (3) judgment n.o.v.

was proper because the plaintiff failed to establish proximate

cause.

     Before addressing the merits of Loyola's contentions, we

address the plaintiff's assertion that Loyola has waived the

first two contentions, if not also the third, because it failed

                                 22
No. 1-06-1536


to obtain a conditional ruling in the circuit court in violation

of section 2-1202(f) of the Code of Civil Procedure, which

requires the circuit court to "rule conditionally on the other

relief sought [in a posttrial motion]."       735 ILCS 5/2-1202(f)

(West 2006).    Loyola's posttrial motion, which raised the issues

of timeliness, breach, and proximate cause, did not seek other

forms of relief.    Rather, Loyola's posttrial motion set forth

alternative bases for the same relief--judgment n.o.v.

Consequently, Loyola's alternative bases for upholding the

judgment n.o.v. are not waived.     Varady v. Guardian Co., 153 Ill.

App. 3d 1062, 1070, 506 N.E.2d 708 (1987); Ralston v. Plogger,

132 Ill. App. 3d 90, 97, 476 N.E.2d 1378 (1985).       We address each

in turn.

                           A.   Time Barred

      Loyola points out the plaintiff's original and amended

complaints did not specifically allege Loyola breached any

independent duty of care and, in its view, only alleged Loyola

was vicariously liable for Dr. Parvathaneni's alleged

malpractice.    Loyola argues, "Even assuming that Plaintiff

attempted to amend her complaint at [a later date], any claim of

institutional negligence against Loyola would be time barred."

Loyola points out the statute of limitations for a medical

malpractice claim is two years (735 ILCS 5/13-212(a) (West

                                  23
No. 1-06-1536


2004)), and argues any institutional negligence claim would not

"relate back" to the original complaint under section 2-616(b) of

the Code of Civil Procedure (735 ILCS 5/2-616(b) (West 2004)).

     Section 2-616(b) provides:

                    "The cause of action, cross claim or

            defense set up in any amended pleading shall

            not be barred by lapse of time under any

            statute *** prescribing or limiting the time

            within which an action may be brought or

            right asserted, if the time prescribed or

            limited had not expired when the original

            pleading was filed, and if it shall appear

            from the original and amended pleadings that

            the cause of action asserted, or the defense

            or cross claim interposed in the amended

            pleading grew out of the same transaction or

            occurrence set up in the original pleading

            ***."    735 ILCS 5/2-616(b) (West 2004).

     Loyola mistakenly relies on section 2-616(b) and

institutional negligence cases addressing the relation-back

doctrine.    See, e.g., Frigo v. Silver Cross Hospital & Medical

Center, 377 Ill. App. 3d 43, 62, 876 N.E.2d 697 (2007)

(plaintiff's negligent credentialing claim related back to her

                                    24
No. 1-06-1536


original pleading specifically alleging the hospital committed

negligence); Weidner v. Carle Foundation Hospital, 159 Ill. App.

3d 710, 713, 512 N.E.2d 824 (1987) (plaintiff's allegation that

the hospital breached its institutional duty of care did not

relate back to her original complaint alleging the hospital was

vicariously liable for the doctor's malpractice).    The relation-

back provision of section 2-616(b), by its very terms, applies

only in cases where "cause[s] of action, cross claim[s] or

defense[s]" are raised beyond the limitations period in "any

amended pleading."   735 ILCS 5/2-616(b) (West 2004); Porter v.

Decatur Memorial Hospital, 227 Ill. 2d 343, 882 N.E.2d 583

(2008).   In this case, the plaintiff did not raise any new claim

against Loyola in an amended pleading.   Rather, the plaintiff's

original and amended complaints, both filed within the two-year

limitations period, contained the same allegations against

Loyola, and no other amended pleadings were filed.   Simply

stated, the relation-back doctrine has no application in this

case.

     What is relevant, however, is whether the plaintiff's timely

filed amended complaint contained sufficient facts to put Loyola

on notice that the plaintiff sought to hold it liable for

institutional negligence.   The plaintiff's amended complaint

alleged Loyola and Dr. Parvathaneni failed to properly test,

                                25
No. 1-06-1536

inspect, and diagnose the donor heart, and that both defendants

"[o]therwise deviated from the standard of care."   Although the

amended complaint did not expressly assert an institutional

negligence claim against Loyola, Loyola was on notice of this

theory of liability long before the commencement of trial.    In

her Supreme Court Rule 213 (210 Ill. 2d R. 213) response, the

plaintiff disclosed Dr. Avery's opinion on this very point.

                "9.   Defendant Loyola University Medical

          Center, as an institution and through the

          physicians practicing within the heart

          transplant unit, had a duty to ensure that

          each physician and participant in the heart

          transplant team understood his or her role

          and what was expected of him or her in the

          assessment of the donor heart for transplant.

          This was a deviation from the standard of

          care on the part of Defendant Loyola

          University Medical Center."

     Loyola's motion in limine to bar Dr. Avery from testifying

about institutional negligence confirms that Loyola understood

that the plaintiff was proceeding under this separate theory of

liability.

     We reject Loyola's contention that the plaintiff's


                                 26
No. 1-06-1536

institutional negligence claim was time barred.

                         B.   Breach of Duty

     In an institutional negligence case, "[a] hospital owes a

duty to its patients to exercise reasonable care in light of

apparent risk."    Andrews v. Northwestern Memorial Hospital, 184

Ill. App. 3d 486, 493, 540 N.E.2d 447 (1989), citing

Ohligschlager v. Proctor Community Hospital, 55 Ill. 2d 411, 303

N.E.2d 392 (1973).    Here, the "apparent risk" was that a donor

heart with significant hypertrophy would be accepted for

transplantation.    In order to avoid this risk, the plaintiff

asserts Loyola had a duty to ensure that each member of the heart

transplant team was fully aware of his role in evaluating the

donor heart for transplantation.1

     According to the plaintiff, Dr. Parvathaneni should have

been informed that his role, as part of the transplant team,

included evaluating the heart for transplantation after

harvesting, not simply examining the heart while in the donor.

Had Dr. Parvathaneni evaluated the heart after harvesting, he

likely would have made the same observation Dr. Foy made after

     1
         Loyola makes no claim that the standard of care, itself,

was not established by the evidence in light of Dr. Foy's

testimony that the procuring surgeon is charged with evaluating

the donor heart for transplantation.

                                  27
No. 1-06-1536

first observing the donor heart, that it was a "Hypertrophic

heart!"   Dr. Avery, the plaintiff's expert, explained that had

Dr. Parvathaneni evaluated the heart after it was removed he

would have found: "a thick heart of significant hypertrophy and

considerable plaque in the coronaries."    Dr. Parvathaneni

testified that hypertrophy can most easily be felt after the

heart is removed; he, however, was not trained to manually

inspect the heart after removal.     After removal, his role was "to

bring the organ as fast as [he] could" to Loyola.    According to

Dr. Foy's deposition testimony, he was "surprised" by Dr.

Parvathaneni's description of his role because Dr. Parvathaneni

played a much greater role in evaluating the donor heart.     In his

deposition, Dr. Mullen characterized Dr. Parvathaneni's role in

evaluating the donor heart as "enormous."    As Dr. Avery

testified, Loyola owed a duty of reasonable care to Mr.

Longnecker to ensure that before his native heart was removed,

the donor heart was evaluated as acceptable for transplantation

by each member of the transplant team.

     Against this record, Loyola makes three arguments to

challenge the jury's finding of breach of duty.

     First, Loyola argues there is no evidence it knew or should

have known about Dr. Parvathaneni's noncompliance with transplant

procedures.   Loyola cites Pickle, 106 Ill. App. 3d 734, 435


                                28
No. 1-06-1536

N.E.2d 877, Reynolds v. Mennonite Hospital, 168 Ill. App. 3d 575,

522 N.E.2d 827 (1988), and Rohe v. Shivde, 203 Ill. App. 3d 181,

560 N.E.2d 1113 (1990) as support.

     In Pickle, the plaintiff sued the doctor and the hospital,

alleging he suffered injuries as a result of electroconvulsive

therapy.    The plaintiff specifically alleged the doctor

administered the therapy in a manner that did not comply with the

hospital's policies, and the hospital allowed the procedure to be

performed in violation of its policies.    The circuit court

dismissed the complaint and we affirmed.    We held the complaint

was properly dismissed because the plaintiff failed to allege the

hospital knew or should have known the doctor would violate its

policies.    Our decision in Holton v. Resurrection Hospital, 88

Ill. App. 3d 655, 659, 410 N.E.2d 969 (1980), which held that a

hospital has a duty to use reasonable care to discern the medical

qualifications of those practicing within the hospital and that a

hospital breaches that duty where it allows a doctor to practice

where it knows or should know the doctor is unqualified, provided

the authority for our holding.    We refused to "recognize the

existence of a duty on the part of the hospital's administration

to insure that each of its staff physicians will always perform

his duty of due care," because that would amount to requiring the

hospital to act as an insurer of a patient's safety.    Pickle, 106


                                 29
No. 1-06-1536

Ill. App. 3d at 739.

     Similar claims were raised in Reynolds and Rohe.      Rohe, 203

Ill. App. 3d at 200 (alleging the defendant hospital allowed a

pediatrician to practice where the pediatrician violated several

hospital policies); Reynolds, 168 Ill. App. 3d at 577 (alleging

the defendant hospitals failed to review and supervise the

doctors' work where the doctors misdiagnosed the plaintiffs and

performed unnecessary surgery).    In both cases, we held the

hospitals were entitled to summary judgment because the

plaintiffs failed to allege the hospitals were aware of the

doctors' actions.    Rohe, 203 Ill. App. 3d at 203; Reynolds, 168

Ill. App. 3d at 578-79.

     Pickle, Reynolds, and Rohe do not control this case.       Each

of the three cases involved a "rouge" doctor practicing medicine

in violation of the policies set forth by the hospital.

     Unaddressed in those cases is the issue here--whether the

hospital adequately informed a doctor of his duties while working

as a member of a team of doctors.      The allegation against Loyola

is not that Dr. Parvathaneni harvested hearts in violation of

Loyola's policies.   Rather, the allegation is that Loyola never

informed Dr. Parvathaneni that his duty as a harvesting surgeon

encompassed "evaluating a heart for transplantation."     The

plaintiff's claim of reasonable care owed by Loyola was not to


                                  30
No. 1-06-1536

insure that each member of the heart transplant team will always

perform his duty of reasonable care to his patient; rather, the

plaintiff contends Loyola breached its duty to ensure Dr.

Parvathaneni knew his role as part of the heart transplant team

was not simply to examine but to evaluate the donor heart.

     Second, Loyola argues the plaintiff "failed to proffer any

evidence that if Loyola had done something differently with

respect to the training or supervision of Dr. Parvathaneni, his

alleged noncompliance would have been discovered."    Loyola's

contention, by linking Loyola's shortfall on "training or

supervision of Dr. Parvathaneni" to the discovery of the alleged

noncompliance, misses the point.     As we have made clear above, it

is not the discovery of Dr. Parvathaneni's "alleged

noncompliance" with a Loyola policy that is at issue; rather, at

issue is Loyola's alleged failure to ensure Dr. Parvathaneni was

aware of its policy that the procuring surgeon had a role in

evaluating the heart for transplantation.

     Finally, Loyola argues Dr. Avery's testimony was conclusory.

Dr. Avery testified Dr. Parvathaneni's deposition testimony

conflicted with that of Drs. Foy and Mullen regarding the role of

the procuring surgeon.   According to Dr. Avery, Loyola breached

the standard of care because "everybody needs to be on the same

page in terms of what each team member's role is in the team."


                                31
No. 1-06-1536

According to Loyola, "To sustain Plaintiff's burden, Dr. Avery

was required to explain specifically how Loyola allegedly

breached the applicable standard of care--to identify what Loyola

failed to do that a 'reasonably careful' hospital would have done

under similar circumstances to ensure that individual members of

the Transplant Team understood their respective roles."      Loyola

again relies on Reynolds.

     As discussed above, Reynolds affirmed summary judgment in

favor of the defendant hospitals because the plaintiffs failed to

establish the defendant hospitals knew or had reason to know of

the doctors' alleged malpractice.    The court also addressed

whether testimony from the plaintiffs' expert was sufficient to

establish the hospitals' knowledge.    We held it was not.

Although the expert opined that the hospitals should have known

of the doctors' improper diagnoses of thoracic outlet syndrome,

the plaintiffs failed to allege any facts "to substantiate that

opinion."   Reynolds, 168 Ill. App. 3d at 579.   Thus, in Reynolds,

the expert asserted a conclusion without factual support that the

hospital should have known of the doctors' noncompliance through

proper review.

     Here, the facts underlying Dr. Avery's opinion go directly

to the claimed breach by Loyola of its duty of reasonable care

owed to Mr. Longnecker that each team member evaluate the heart


                                32
No. 1-06-1536

for transplantation.   Dr. Parvathaneni testified he was not

trained to "evaluate" the donor heart for hypertrophy even though

such an evaluation could be quickly made based on Dr. Foy's

immediate observation after removing the donor heart from the

transport container that it was a "Hypertrophic heart!"   Drs. Foy

and Mullen each provided deposition testimony that Dr.

Parvathaneni had an enormous role in evaluating the donor heart

for transplantation.   This enormous role Dr. Parvathaneni was

expected to play in evaluating the donor heart for

transplantation is confirmed by Dr. Foy's decision to remove Mr.

Longnecker's heart before he personally viewed the donor heart.

     Dr. Avery's opinion that Loyola breached the standard care

by failing to ensure that each member of the transplant team

evaluated the donor heart had sufficient factual support in the

record to establish that Loyola breached its duty of care to Mr.

Longnecker.

                        C.   Proximate Cause

     Loyola next argues the plaintiff failed to establish

proximate cause.   Loyola argues "there was no evidence that if

Loyola had done something differently with respect to the

training or supervision of Dr. Parvathaneni, then Dr.

Parvathaneni and Dr. Foy would have rejected the donor heart for

transplantation in Mr. Longnecker."   As authority for its "no


                                 33
No. 1-06-1536

proximate cause" contention, Loyola relies on Snelson v. Kamm,

204 Ill. 2d 1, 787 N.E.2d 796 (2003), a case not involving a

claim of institutional negligence.

      In Snelson, under Dr. Kamm's care, Snelson underwent a

"radiological procedure known as an aortogram or aroteriogram,

[performed by a radiologist practicing at the hospital,] to

determine the location of arterial blockages."   Snelson, 204 Ill.

2d at 10.   The procedure was terminated because of the difficulty

in inserting "the guide wire."   Snelson, 204 Ill. 2d at 10.   Dr.

Kamm, a general surgeon, was informed that the test was not

completed and that Snelson complained of back and abdominal pain

following the unsuccessful procedure.   Snelson, 204 Ill. 2d at

11.   After ameliorative treatments over the course of a day and a

half to address Mr. Snelson's severe abdominal pain were

exhausted, Dr. Kamm performed emergency exploratory surgery,

which revealed portions of the small and large bowel loops were

dead.   At trial, the radiologist opined that the "unsuccessful

*** aortogram caused the death of portions of Snelson's

intestine[s]."   Snelson, 204 Ill. 2d at 15.

      The action against the hospital was based on Snelson's claim

that the attending nurses negligently failed to inform Dr. Kamm

that they had inserted a catheter before Dr. Kamm ordered one and

that Snelson was experiencing high levels of pain.   This, Snelson


                                 34
No. 1-06-1536

contended, affected the treatment he received from Dr. Kamm.

Snelson, 204 Ill. 2d at 13.     After a verdict was returned against

Dr. Kamm and the hospital, the circuit court entered a judgment

n.o.v. for the hospital, finding no causal connection between the

alleged failures of the nurses and the medical treatment rendered

by Dr. Kamm.    Snelson, 204 Ill. 2d at 13.   The appellate court

affirmed.   The supreme court granted leave to appeal.

     The supreme court began its discussion of Snelson's claim

that the judgment n.o.v. was error with observations based on the

record evidence.   "Snelson acknowledges that he presented no

expert testimony indicating that [the hospital's] conduct was a

proximate cause of his injury.    He also acknowledges that Kamm

testified that no act or omission of the nursing staff affected

his course of treatment ***.    Nevertheless, Snelson argues that a

question of fact as to proximate cause was sufficiently

established by the evidence."    Snelson, 204 Ill. 2d at 42.

     Here, Loyola does not assert, nor can it based on the record

before us, that the plaintiff acknowledges similar shortfalls in

the evidence.   Snelson is thus factually distinguishable.     We

nonetheless address Loyola's contention that under a Snelson-type

analysis, proximate cause was not shown here.

     According to Loyola, as to Dr. Foy's decision to transplant

the donor heart, the record evidence supports but one conclusion:


                                  35
No. 1-06-1536

"[E]ven though the donor heart had more hypertrophy than Dr. Foy

expected based on the echocardiogram, Dr. Foy decided that the

heart was acceptable for transplant in Mr. Longnecker."   Thus,

Loyola argues, because the donor heart was found acceptable for

transplantation by Dr. Foy, there was no causal connection

between Dr. Parvathaneni's failure to evaluate the heart after

harvest and Dr. Foy's decision to transplant the donor heart.

     It is true that Dr. Foy testified that he decided the heart

was suitable for transplant and that he had the alternative

option of using an artificial heart if he found the donor heart

unacceptable.   Loyola ignores, however, that the jury also had

before it Dr. Foy's deposition testimony that once he removed Mr.

Longnecker's native heart, "the die is cast, [there is] no choice

but to implant [the donor] heart."   The discovery by Dr. Foy that

the donor heart was hypertrophic was simply too late once the

donor heart was on the "operative field."   The jury also heard

the testimony of Dr. Higgins, an expert called on behalf of

Loyola, that he would not transplant a heart with two-centimeter

hypertrophy and severe coronary artery disease.   At the autopsy,

the donor heart measured two centimeters in thickness at the left

ventricle and exhibited "moderate to severe" coronary artery

disease.

     This conflict in the evidence made it a jury question


                                36
No. 1-06-1536

whether the alleged breach of Loyola's institutional standard of

care proximately caused the death of Mr. Longnecker.

     Our conclusion that proximate cause was a question of fact

for the jury is supported by the conclusion reached by the

supreme court in Jones on the issue of proximate cause in an

institutional negligence case.    In Jones, in response to Chicago

HMO's argument that there was no causal connection between

Shawndale's claim and the failure of Chicago HMO to schedule a

needed appointment in which Shawndale's illness would have been

discovered, the court observed:    "We can easily infer from this

record that Dr. Jordan's failure to see Shawndale resulted from

an inability to serve an overloaded patient population.   A lay

juror can discern that a physician who has thousands more

patients than he should will not have time to service them all in

an appropriate manner."   Jones, 191 Ill. 2d at 301.   This

reasonable inference, along with additional evidence in the

record that Chicago HMO was soliciting more patients, the supreme

court concluded, presented a material question of fact to

overcome summary judgment "on Jones' claim of institutional

negligence for assigning too many patients to Dr. Jordan."

Jones, 191 Ill. 2d at 304.

     Likewise here, the jury could have inferred that Dr. Foy

removed Mr. Longnecker's native heart, not because it was in


                                  37
No. 1-06-1536

worse condition than the hypertrophic heart of the donor but

because he relied on Dr. Parvathaneni to have informed him if the

donor heart were hypertrophic, that is, to a greater degree than

indicated in the diagnostic tests of the donor.    As the plaintiff

claims, had Loyola properly conveyed to Dr. Parvathenani that as

part of the transplant team his duties included evaluating the

donor heart after harvest, thus leading to the discovery of the

significant hypertrophy in the donor heart, "then Dr. Foy would

have rejected the donor heart for transplantation in Mr.

Longnecker."    That the severity of hypertrophy in the donor

heart, detected by Dr. Foy immediately upon removing the heart

from the transport container, was a shock to Dr. Foy is revealed

by the exclamation notation of "Hypertrophic heart!" in his

operating notes.    The jury was not required to believe Dr. Foy's

testimony in court that he found the heart acceptable for

transplantation over his deposition testimony that once he

removed Mr. Longnecker's native heart, he "had no choice but to

implant [the donor] heart."    The jury was free to draw the

inference from the evidence that Dr. Foy would not have

"implant[ed] that heart" had he had a real choice, which a

properly trained Dr. Parvathenani would have given him.

     Accordingly, there was a causal connection between Loyola's

failure to ensure that the entire transplant team was "on the


                                 38
No. 1-06-1536

same page" and Mr. Longnecker's death, caused by the

transplantation of a nonfunctioning heart.

     Finally, the circuit court's conclusion that a verdict in

favor of Dr. Parvathaneni precluded a proximate cause showing as

to the institutional negligence claim, in the context of this

case, is, simply put, wrong.    Our supreme court has expressly

stated: "Liability is predicated on the hospital's own

[institutional] negligence, not the negligence of the physician."

Jones, 191 Ill. 2d at 292. "[T]he tort of institutional

negligence 'does not encompass, whatsoever, a hospital's

responsibility for the conduct of its *** medical

professionals.' "    Jones, 191 Ill. 2d at 298, quoting Advincula,

176 Ill. 2d at 31.

     To hold Dr. Parvathaneni liable, the jury would have had to

conclude that he deviated from the professional standard of care

to which a procuring surgeon is held.    The standard of care for

Loyola as to the institutional negligence claim required a

showing of what a reasonably careful hospital would do under the

circumstances of this case.    If, in fact, as the circuit judge

concluded, before institutional negligence can be found,

professional negligence on the part of Dr. Parvathaneni must be

found, the claims of professional negligence and institutional

negligence would conflate into a single theory of vicarious


                                 39
No. 1-06-1536

liability.   Dr. Parvathaneni's commission of medical malpractice

would impose vicarious liability on Loyola, as principal to Dr.

Parvathaneni, and render the claim of institutional negligence

against Loyola pointless.   The two claims, however, are

independent, as our supreme court has made clear.   Because the

jury found in favor of Dr. Parvathaneni, it does not follow that

the jury was compelled to find in favor of Loyola on the

institutional negligence claim.    See Collins v. Roseland

Community Hospital, 219 Ill. App. 3d 766, 775, 579 N.E.2d 1105

(1991) (verdicts not inconsistent because care provided at

hospital involved health professionals "requiring differing

degrees of care and subject to differing standards of care").

Under the facts of this case no such outcome was required.    The

jury was properly instructed that Loyola alone could be found

liable under the institutional negligence theory and the jury so

found.

     The circuit judge, in concluding the verdict in favor Dr.

Parvathaneni and the verdict against Loyola could not stand, may

have been thinking of a case like Frigo, where the plaintiff

asserted a negligent credentialing claim in the context of

institutional negligence, involving a podiatrist, a nonemployee

of the hospital.   Frigo, 377 Ill. App. 3d 43.   If the plaintiff

successfully established a deviation of the standard of care of


                                  40
No. 1-06-1536

the hospital resulting in wrongly extending credentials to the

podiatrist, then to establish proximate cause for the injury

inflicted on the plaintiff by the podiatrist on the independent

institutional claim, the plaintiff would also have to establish

that the podiatrist committed medical malpractice that gave rise

to the plaintiff's injuries.     Frigo, 377 Ill. App. 3d at 74-75.

If the podiatrist did not commit medical negligence, there would

be no causal connection between the hospital's action in

negligently giving surgical privileges to the podiatrist and the

injuries the plaintiff suffered.       Frigo, 377 Ill. App. 3d at 75.

     Frigo, is much like Reynolds, the case upon which the

dissent so heavily relies.     In each case, the plaintiff was

required to prove malpractice by the offending doctors.      In

Frigo, the plaintiff had to prove the podiatrist committed

malpractice in order to succeed on her institutional negligence

claim against the hospital.    In Reynolds, the plaintiffs were

required to prove not only that the surgeons "were negligent in

their diagnoses of these plaintiffs" but "that the hospitals

should have known, through proper review procedures, that the

surgeons were improperly diagnosing thoracic outlet syndrome."

Reynolds, 168 Ill. App. 3d at 579.

     Here, the plaintiff's institutional claim was based on

Loyola's deviation from the standard of care, not on any claimed


                                  41
No. 1-06-1536

deviation of the standard of care by Dr. Parvathaneni.       In fact,

the jury found Dr. Parvathaneni did not commit medical

malpractice, a verdict supported by the evidence as the plaintiff

concedes.    The focus of the plaintiff's institutional negligence

claim against Loyola is entirely on Loyola's training of Dr.

Parvathaneni, as the harvesting surgeon of the heart transplant

team.    Even if "notice" under Reynolds were at the crux of the

plaintiff's claim, it is disingenuous for Loyola to suggest that

it did not have "notice" that Dr. Parvathaneni was not trained to

evaluate the donor heart after harvesting when Loyola itself

trained Dr. Parvathaneni in his role as the harvesting surgeon of

the transplant team.    It is no more plausible that Loyola had no

such notice than that Loyola was unaware heart transplants were

taking place in its hospital.    As we have made clear, the instant

case is like neither Reynolds nor Frigo.

     The dissent intimates that Aguilera v. Mount Sinai Hospital

Medical Center, 293 Ill. App. 3d 967, 691 N.E.2d 1 (1997),

provides guidance on proximate cause in this case.2       We find no

     2
         We find no legal significance to the dissent's

observations that "there is no expert testimony of how long the

decedent could have lived; how long it would have taken to obtain

a new donor; or if the decedent was placed on a Jarvik-type

artificial heart, how long could the decedent live with the

                                 42
No. 1-06-1536

factual similarities between Aguilera and the case before us.

There is a life and death difference between a claim based on a

delay in ordering a CT scan that would have revealed a brain

hemorrhage that might or might not be operable and a claim that

Loyola removed a functioning heart (albeit, one that gave Mr.

Longnecker a 30% chance of surviving one year) and replaced it

with a nonfunctioning heart resulting in Mr. Longnecker's death

four days later.

     It was for the jury to determine whether there was

sufficient evidence of the breach of duty by Loyola and whether

there was a causal link between that breach and Mr. Longnecker's

death.   Based on the record evidence and the reasonable

inferences that may be drawn therefore, we cannot say "no


artificial heart."   (Slip op. at __.)   Much like Dr. Foy's

decision to remove Mr. Longnecker's heart before discovering the

donor's hypertrophic heart, the dissent's unanswered questions

focus the analysis too late in the sequence of events.     The

plaintiff's claim is that Mr. Longnecker's native heart should

never have been removed in the first instance when all Loyola had

to replace it with was a hypertrophic heart or other limited

measures that would not have returned Mr. Longnecker to the

position he was in before he was admitted to Loyola for a heart

transplant.

                                43
No. 1-06-1536

contrary verdict based on that evidence could ever stand."

Pedrick, 37 Ill. 2d at 510.    Loyola was not entitled to judgment

n.o.v. on proximate cause.

                II.    Legally Inconsistent Verdicts

     Dr. Parvathaneni contends the verdicts are not inconsistent

because different standards of care are involved in medical

negligence and institutional negligence.    Collins, 219 Ill. App.

3d at 775, 579 N.E.2d 1105 (1991) (verdicts not inconsistent

because care provided at hospital involved health professionals

"requiring differing degrees of care and subject to differing

standards of care").    The plaintiff contends the verdicts are not

inconsistent because " 'the same element [was not] found to exist

and not to exist.' "    Redmond v. Socha, 216 Ill. 2d 622, 649, 837

N.E.2d 883 (2005), quoting Black's Law Dictionary 1592 (8th ed.

2004).   Loyola contends "[t]he verdict in favor of Dr.

Parvathaneni broke any possible causal link between Loyola's

conduct and Mr. Longnecker's injuries."

     Loyola's argument is in effect the reasoning of the circuit

judge that the verdicts were irreconcilable because the verdict

in favor of Dr. Parvathaneni precluded a showing of proximate

cause in the claim against Loyola, which we have already

rejected.   Loyola presents no additional argument that we need

address on its claim of inconsistent verdicts.


                                  44
No. 1-06-1536

     We also note that a holding of legally inconsistent

verdicts, under supreme court precedent, mandates that both

verdicts be vacated and a new trial ordered against Loyola and

Dr. Parvathaneni.   Redmond, 216 Ill. 2d at 651 ("once a trial

court determines that jury verdicts are legally inconsistent,

whether to grant a new trial is not up to the trial court's

discretion.   It is mandatory").    The jury found the plaintiff

failed to prove her case against Dr. Parvathaneni.    The plaintiff

does not contest this verdict but agrees with Dr. Parvathaneni's

contention that "there was evidence from which the jury could

conclude that Parvathaneni was not negligent."    Vacating the

jury's verdict in favor of Dr. Parvathaneni and remanding for a

new trial against him would be unjust in this case.

                              CONCLUSION

     For the reasons stated above, the order of the circuit court

of Cook County is reversed and the matter is remanded for further

proceedings consistent with this opinion.

     Reversed and remanded.

     CAHILL, P.J., concurs.

     R. GORDON, J., dissents.




                                   45
No. 1-06-1536

JUSTICE ROBERT E. GORDON, dissenting:

       I respectfully dissent from the majority opinion where they find that plaintiff proved an

institutional negligence case against Loyola University Medical Center (Loyola). I believe the

trial judge’s decision should be affirmed; however, I agree that the verdicts were not inconsistent.

       Illinois has long recognized that a hospitals may be held liable for its own negligence. In

Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 333 (1965), our Illinois

Supreme Court acknowledged an independent duty of hospitals to assume responsibility for the

care of their patients. “Ordinarily, this duty is administrative or managerial in character.” Jones

v. Chicago HMO Ltd., of Illinois, 191 Ill. 2d 278, 291 (2000), citing Advincula v. United Blood

Services, 176 Ill. 2d 1, 28 (1996). To fulfill its duty, a hospital must act as a “reasonably careful

hospital” would under similar circumstances. Advincula, 176 Ill. 2d at 29. Liability is

predicated on the hospital’s own negligence, not the negligence of the physician. Jones, 191 Ill.

2d at 284. This independent negligence of the hospital is known as institutional negligence or

direct corporate negligence.

       In a medical negligence case, a plaintiff must prove by a preponderance of the evidence

that: (1) the defendant owed a duty of care; (2) the defendant breached that duty; and (3) the

plaintiff’s resulting injury or death was proximately caused by the breach. Hooper v. County of

Cook, 366 Ill. App. 3d 1, 6 (2006). I find no evidence in the record of this case of either a breach

of duty or causation. Plaintiff’s expert, Dr. Avery, testified that Loyola breached its duty because

“basically everybody needs to be on the same page in terms of what each team member’s role is

in the team.” Dr. Avery’s testimony concerning the “same page” was based on the fact that Drs.


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Foy and Mullen described the role of a procuring surgeon under the Loyola system differently

than Dr. Paravataneni did. Reynolds v. Mennonite Hospital, 168 Ill. App. 3d 575

(1988) is instructive as to whether the evidence in this case could support a verdict against

Loyola for its claimed failure to instruct Dr. Paravathaneni about his role on the heart transplant

team. In Reynolds, plaintiffs alleged that the hospital was institutionally negligent because it

failed to implement or follow standards of review to ensure the competency of its surgeons to

diagnose thoracic outlet syndrome. Reynolds, 168 Ill. App. 3d at 578-79. The appellate court

affirmed the trial court’s entry of summary judgment for the hospital because there was no

evidence that would have placed the hospital on notice of any malpractice by the surgeons.

Reynolds, 168 Ill. App. 3d at 580. In Reynolds, the plaintiff’s expert opined that the hospital

should have known, through proper review procedure, that its surgeons were improperly

diagnosing thoracic outlet syndrome; but the trial court concluded that the plaintiff’s expert’s

testimony was insufficient because there were no facts to substantiate that opinion. Reynolds,

168 Ill. App. 3d at 579-80. See also Rohe v. Shivde, 203 Ill. App. 3d 181, 202 (1990) (plaintiff

presented no evidence that the hospital failed to review the performance of the attending

pediatrician as to her compliance with hospital policy in examining newborn infants).

        In the case at bar, there was no evidence that Loyola knew or should have known if Dr.

Paravathaneni had ever deviated from Loyola’s institutional policies or did not understand his

role on the heart transplant team. Plaintiff’s expert needed to identify what Loyola failed to do

that a “reasonably careful” hospital would have done under similar circumstances. Advincula,

176 Ill. 2d at 29.


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       However, even if plaintiff was able to show the second element, namely a breach of the

standard of care, there was no evidence of the third element, namely, a causal relationship

between an alleged breach of duty and the death at issue. “ ‘[I]n order to sustain the burden of

proof, a plaintiff’s expert must demonstrate within a reasonable degree of medical certainty that

the defendant’s breach in the standard of care is more probably than not the cause of the injury.’ ”

Bergman v. Kelsey, 375 Ill. App. 3d 612, 625 (2007), quoting Knauerhaze v. Nelson, 361 Ill.

App. 3d 538, 549 (2005).

       Even if Dr. Paravathaneni had been properly advised of his role to evaluate the donor’s

heart for transplant purposes and advised Dr. Foy of his findings, there is no evidence that Dr.

Foy would not have used the donor’s heart. Plaintiff’s expert, Dr. Avery, testified that if Dr.

Paravathaneni had evaluated the donor heart after it was removed and before he made the “final

phone call” to Dr. Foy, he would have found what Dr. Foy later found: “a thick heart of

significant hypertrophy and considerable plaque in the coronaries.” Even though the donor heart

had more hypertrophy than Dr. Foy expected based on the echocardiogram, Dr. Foy knew this

and still decided that the heart was acceptable to transplant to the decedent. Dr. Foy rejected the

option of using an artificial heart instead.3 Dr. Foy made his decision based on the decedent’s

grave medical condition resulting from his failing heart.

       The evidence in the record further indicates that after the heart was removed, Dr.

Paravathaneni found even more hypertrophy than he initially observed. The record contains no


       3
      If Dr. Foy found that the donor’s heart was not suitable,
he testified he could have placed the decedent on a Jarvik-type
artificial heart.

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No. 1-06-1536

medical testimony concerning the effect of those observations or their medical significance for

causation.

       After Dr. Paravathaneni removed the donor heart and made the telephone call to the

hospital, Dr. Foy removed the decedent’s heart and placed the decedent on the heart machine. If

the donor’s heart was not used, there is no expert testimony of how long the decedent could have

lived; how long it would have taken to obtain a new donor; or if the decedent was placed on a

Jarvik-type artificial heart, how long the decedent could have lived with the artificial heart.

       This was a complex medical malpractice case that required a medical basis for the

expert’s opinion that Loyola’s breach of duty was a cause of the decedent’s death; and it is not

found in this record.

       Dr. Avery’s testimony concerning causation was limited to the following:

                        “Q. Was Mr. Longnecker’s death caused as a result of the

               deviations from the standard of care that we talked about today?

                        A. I believe they are.”

There was no basis for that opinion; and as a result, the element of causation was lacking. “An

expert’s opinion is only as valid as the basis and reasons for the opinion.” Wilson v. Bell Fuels,

Inc., 214 Ill. App. 3d 868, 875 (1991), citing McCormick v. Maplehurst Winter Sports, Ltd., 166

Ill. App. 3d 93, 100 (1988). “A party must lay a foundation sufficient to establish the reliability

of the bases for the expert’s opinion.” Petraski v. Thedos, No. 1-06-2914, slip op. at 11 (Ill.

App. Ct. March 31, 2008), citing Turner v. Williams, 326 Ill. App. 3d 541, 552-53 (2001).

       In Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 968 (1997),


                                                  49
No. 1-06-1536

the plaintiff’s decedent was taken to the emergency room complaining of numbness on the right

side of his body. About six or seven hours later, a CT scan was taken, revealing a brain

hemorrhage. Aguilera, 293 Ill. App. 3d at 969. The patient died a few days later. Aguilera, 293

Ill. App. 3d at 969. Plaintiff presented two experts who testified that the emergency room

physician’s delay in taking the CT scan caused the decedent’s death. Aguilera, 293 Ill. App. 3d

at 969. It was the plaintiff’s theory that a diagnosis of the condition would have triggered

surgical intervention to prevent the decedent’s death. Aguilera, 293 Ill. App. 3d at 969-70.

However, on cross-examination, plaintiff’s experts admitted that they would defer to a

neurosurgeon as to whether surgery should have even been performed; yet the only

neurosurgeons testifying in the case stated that surgery would not have been appropriate.

Aguilera, 293 Ill. App. 3d at 969-70. This court held that the opinions offered by the plaintiff’s

experts lacked a sufficient factual basis and were therefore based on conjecture. Aguilera, 293

Ill. App. 3d at 975.

       There just is not enough evidence in the record concerning breach of duty and causation

for this court to reverse the decision of the trial court. I would affirm.




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          REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
       _______________________________________________________________
            CONNIE LONGNECKER, Individually and as Special Administrator
            of the Estate of CARL LONGNECKER, Deceased,
                   Plaintiff-Appellant,
            v.
            LOYOLA UNIVERSITY MEDICAL CENTER, and
            SIRISH PARVATHANENI, M.D.,
                   Defendants-Appellees.
        _____________________________________________________________
                                      No. 1-06-1536
                               Appellate Court of Illinois
                              First District, First Division
                                  Filed: June 25, 2008
      _________________________________________________________________
                 JUSTICE GARCIA delivered the opinion of the court.
                                 CAHILL, P.J., concurs.
                               R. GORDON, J., dissents.
      _________________________________________________________________
                    Appeal from the Circuit Court of Cook County
                    Honorable Irwin J. Solganick , Judge Presiding
      _________________________________________________________________
For PLAINTIFF -            Michael W. Rathsack
APPELLANT                  Tom Leahy
                           Peter D. Hoste
                           111 West Washington Street, Suite 962
                           Chicago, Illinois 60602

For DEFENDANT -           Krista R. Frick
APPELLEE,                 John M. Stalmack
Sirish Parvathaneni, M.D. Bollinger, Ruberry & Garvey
                          500 West Madison, Suite 2300
                          Chicago, Illinois 60661

For DEFENDANT -           Thomas J. Burke, Jr.
APPELLEE,                 Ben Patterson
Loyola University         Hall Prangle & Schoonveld, LLC
Medical Center            200 South Wacker Drive, Suite 3300
                          Chicago, Illinois 60606

                          Eugene A. Schoon
                          Sherry A. Knutson

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No. 1-06-1536

                Sidley Austin, LLP
                One South Dearborn Street
                Chicago, Illinois 60603




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