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Parker v. Illinois Masonic Warren Barr Pavilion

September 29, 1998

MICHAEL PARKER, ADM'R OF THE ESTATE OF META KRUEGER, PLAINTIFF-APPELLEE,
v.
ILLINOIS MASONIC WARREN BARR PAVILION, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Cousins

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

No. 95-L-1545

THE HONORABLE RONALD J. BANKS, JUDGE PRESIDING.

On January 15, 1997, a jury returned a verdict of $203,116.97 in favor of plaintiff, Meta Krueger *fn1 , and against defendant, Illinois Masonic Warren Barr Pavilion, reducing it by 49% to $103,589.66 for comparative fault in a negligence action. The circuit court trebled the judgment under the Nursing Home Care Act (210 ILCS 45/3~602 (West 1996)), and awarded attorney fees and costs. On appeal, defendant contends that: (1) the verdict was against the manifest weight of the evidence; (2) the trial court abused its discretion in permitting the undisclosed and untimely opinion testimony of Dr. James Sliwa, D.O.; (3) the trial court erred in not applying the 1995 amendment to section 3~602 of the Nursing Home Care Act retroactively; and (4) the trial court abused its discretion in awarding attorney fees.

BACKGROUND

In October 1993, Meta Krueger (Krueger), an 83-year-old woman, was admitted into the nursing home facility of Illinois Masonic Warren Barr Pavilion (Barr Pavilion) for physical therapy following a possible compression fracture of a vertebrae. Warren Barr provided both long-and short-term care, and Krueger was assigned to the short-term care unit located on the seventh floor.

Incoming patients at Barr Pavilion were given an initial nursing evaluation to determine their current condition and to Judge their progress. The nurses on the floor assessed each patient daily to determine his or her ambulation status, and physical therapists summarized care and treatment of individual patients weekly. Upon admission, Krueger needed assistance with walking; therefore, at her evaluation it was deduced that her goal was to return to independent ambulation prior to her discharge. Krueger did not have a definite discharge date, but her target date for discharge was February 9, 1994.

Krueger participated in physical therapy on six occasions before November 11, 1993, and was progressing well according to physical therapy notes. However, at approximately 3:45 a.m. on November 11, 1993, Krueger fell in the bathroom of her room. It was determined that the fall occurred because Krueger did not have on her slippers. Consequently, she lost her balance and fell. A "fall follow-up" form was completed by nurse Karen Kraker, the director of nursing and associate administrator for patient care services, to prevent future falls. The form noted that Krueger had a fear of falling and increased confusion and indicated that Krueger was at risk for additional falls. Since Krueger did not use her call button to ask the staff for assistance on this occasion, nurse Kraker instructed her to use the button for assistance in the future.

On November 17, 1993, Krueger's doctor ordered that Krueger be put on stand-by assist with bed mobility, minimum assist for transfers, and ambulation of 75 feet with a rolling walker and contact. "Stand-by assist" means someone is standing next to the patient supervising, while "minimum assist" means the therapist is doing 25% to 50% of the work. On November 24, 1993, the doctor's order noted that Krueger was still on stand-by assist; however, the physical therapist's weekly note indicated that Krueger was progressing well despite her fall and recommended discharge planning.

On November 27, 1993, Krueger fell in the hallway outside her room. She alleged that a nurse entered the room and informed her that she was to be transferred to another room. *fn2 When no one came to help her, Krueger packed her belongings in plastic bags, hung them over her walker, and moved them into the hallway by herself. After putting the fourth bag of clothing down, she lost her balance and fell, injuring her hip.

Krueger's nurse, Oluwayinka Adeyooye, assisted after the fall. Krueger was transferred to Northwestern Memorial Hospital, where Dr. Proctor Anderson, an orthopedic surgeon, diagnosed Krueger with an intertrochanteric fracture of her right hip. Dr. Anderson performed surgery using a plate and screws to repair the hip fracture. He last saw Krueger on December 2, 1994.

On December 6, 1993, Krueger was discharged to the Rehabilitation Institute of Chicago for physical therapy, where she was under the care of Dr. James Sliwa. After reaching her goals of independently ambulating with a walker, Krueger was discharged on December 29, 1993. On February 14, 1994, Krueger was advised to use a cane. By May 31, 1994, Dr. Sliwa advised her that she could put her full weight on her hip.

Staff notes written after the second fall indicated that on November 28, 1993, Krueger could not independently ambulate on the day she fell. However, on December 1, 1993, a "hold" note written by Krueger's therapist noted that Krueger was able to "independently perform bed mobility and ambulate" on the day of the fall. On January 24, 1994, Catherine Zapparo (Zapparo), the supervisor of physical therapy at Warren Barr, wrote a discharge summary for Krueger indicating that all of Krueger's goals had been met prior to her transfer. Zapparo had never seen Krueger prior to the fall and relied on weekly therapy notes to write her summary.

On January 15, 1997, following a jury trial on the negligence action, the jury returned a verdict of $203,116.97 in favor of Krueger and against Barr Pavilion, reducing it by 49% to $103,589.66 for comparative fault. The circuit court trebled the judgment under the Nursing Home Care Act (210 ILCS 45/3~602 (West 1996)), and awarded attorney fees of $48,825 and costs of $443.40. Defendant appeals.

For the following reasons, we affirm in part, reverse in part, and remand for a new trial.

ANALYSIS

I.

Barr Pavilion first contends that it is entitled to a new trial because the jury's verdict was against the manifest weight of the evidence in that Krueger failed to establish that Warren Barr violated the Nursing Home Care Act (Act) (210 ILCS 45/1~101 et seq. (West 1996)). It is well established that a jury verdict will not be overturned unless it is against the manifest weight of the evidence. Pharr v. Chicago Transit Authority, 220 Ill. App. 3d 509, 521, 581 N.E.2d 162, 169 (1991). A verdict is considered to be against the manifest weight of the evidence only when the opposite Conclusion is clearly apparent or when the finding of the jury appears arbitrary or unsubstantiated by the evidence. Pharr, 220 Ill. App. 3d at 521, 581 N.E.2d at 169; Jarke v. Jackson Products, Inc., 282 Ill. App. 3d 292, 298, 668 N.E.2d 46, 50 (1996). A reviewing court should not disturb the jury's verdict unless, considering all of the evidence in the light most favorable to the party who prevailed at trial, the jury's Conclusion is palpably erroneous and wholly unwarranted. United States Department of Housing & Urbana Development v. Anderson, 178 Ill. App. 3d 1752, 1754, 533 N.E.2d 919, 920-21 (1988).

Krueger filed this case as an ordinary negligence action under the Act. The elements of a cause of action for negligence are "the existence of a duty owed by defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach." Ward v. Kmart Corporation, 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). It has long been held that negligence may be proved by either direct or circumstantial evidence, and the burden of proof is on the plaintiff. Devine v. Delano, 272 Ill. 166, 179-80, 111 N.E. 742, 748 (1916). Circumstantial evidence is the proof of certain facts and circumstances from which the jury may infer other connected facts that usually and reasonably follow according to the common experience of mankind. Devine, 272 Ill. at 180; Pace v. McClow, 119 Ill. App. 3d 419, 424, 458 N.E.2d 4, 8 (1983).

The Illinois Supreme Court has identified certain factors that are relevant to the existence of a duty. Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226. The reasonable foreseeability of injury is one important factor; however, foreseeability alone provides an inadequate foundation upon which to base the existence of a legal duty. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525, 513 N.E.2d 387, 396 (1987). Other considerations include the likelihood of the injury, the magnitude of burden of guarding against it, and the consequences of placing that burden upon the defendant. Kirk, 117 Ill. 2d at 526, ...


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