                       Illinois Official Reports

                               Appellate Court



                  Groeller v. Evergreen Healthcare Center LLC,
                             2015 IL App (1st) 140932



Appellate Court   WILLIAM M. GROELLER, JR., Individually and as Administrator of
Caption           the Estate of Eleanor Groeller, Plaintiff-Appellant, v. THE
                  EVERGREEN HEALTHCARE CENTER LLC, d/b/a Evergreen
                  Healthcare Center, Defendant-Appellee (Boulevard Healthcare
                  Management, LLC, a/k/a Boulevard Healthcare, LLC, Defendant).



District & No.    First District, Fourth Division
                  Docket No. 1-14-0932



Filed             April 30, 2015




Decision Under    Appeal from the Circuit Court of Cook County, No. 09-L-2821; the
Review            Hon. Thomas E. Flanagan, Judge, presiding.



Judgment          Affirmed.



Counsel on        Peter R. Coladarci, of Peter R. Coladarci, Ltd., of Chicago, for
Appeal            appellant.

                  Robert Marc Chemers, John J. Walsh III, and Scott L. Howie, all of
                  Pretzel & Stouffer, Chtrd., of Chicago, for appellee.
     Panel                    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 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 (particularly
       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 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

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       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 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.
¶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

           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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       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.
¶ 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 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.


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¶ 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.
¶ 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 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. [Citation.]
                ***
                    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
       hospital under the circumstances.” (Internal quotation marks omitted.) Id. at 291-92 (quoting

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       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
¶ 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


           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/pro-
       cedures, 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 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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       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:
                “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 though
       the 2006 professional negligence IPI did not accurately state the law, the hospital defendant did
       not suffer prejudice. Id. ¶ 28 (majority opinion). 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 law. Id. at
       1069 n.1. The Bober court also recognized that “instructions may supplement each other, but

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       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.
¶ 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.) 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.



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¶ 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:
                “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. at
                412.
¶ 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.
¶ 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 “frontline” that should have triggered the

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       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.” 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 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.


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¶ 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 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
       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


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       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 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.

¶ 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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