Appeal from Circuit Court of Brown County No. 01L7. Honorable David K. Slocum, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
Plaintiff, Michael B. Myers, independent executor of the estate of decedent, Mary Prillmayer, appeals the judgment entered in favor of defendant, Heritage Enterprises, Inc., upon the jury's verdict. We reverse and remand.
In August 2000, Penny Chapman and Carolyn Butler, certified nurse's aides/nursing assistants (CNAs), worked at Heritage Manor, a nursing home owned and operated by defendant. They attempted to transfer decedent, a 78-year-old resident, from her wheelchair to her bed using a device known as a Hoyer lift. During the process, decedent fell approximately 18 inches and hit the bar of the Hoyer lift, fracturing the tibia and fibula on both legs. Decedent died approximately two weeks later, apparently of unrelated causes because there were no allegations that the fall contributed to her death.
The nursing home reported the incident to the Illinois Department of Public Health (IDPH), which investigated the matter. Corey Crouch, a registered nurse who investigates for IDPH, concluded that decedent fell due to no fault of the facility or the staff.
In July 2001, plaintiff brought suit against defendant, alleging common-law negligence (count I) and violation of the Nursing Home Care Act (Act) (210 ILCS 45/1-101 through 3A-101 (West 2000)) (count II). The Act provides that owners and operators of facilities are liable to a resident for injuries caused by the intentional or negligent acts of their employees or agents. 210 ILCS 45/3-601 (West 2000).
On the motion of defendant, the trial court dismissed count II on the basis that "[a] [c]ause of [a]ction under said *** Act does not survive death of resident." We reversed the trial court in Myers v. Heritage Enterprises, Inc., 332 Ill. App. 3d 514, 515, 773 N.E.2d 767, 768 (2002), holding that the cause of action survived decedent's death.
Plaintiff ultimately withdrew count I, and the matter proceeded to trial on count II in January 2004. Count II alleged that defendant committed the following careless and negligent acts: (1) improperly positioning decedent in the Hoyer-lift sling, (2) failing to observe decedent was not properly seated in the Hoyer-lift sling, (3) failing to provide supervision of the use of the Hoyer lift, (4) failing to properly train its staff in the transfer of patients by use of the Hoyer lift, (5) using obsolete and inadequate equipment for transporting non-ambulatory patients, 6) failure of staff to properly position themselves, (7) careless and negligent operation of the Hoyer lift,(8) employing inexperienced staff, and (9) impairing the movement of the Hoyer lift while transferring the patient.
At the jury instruction conference prior to trial, plaintiff offered Illinois Pattern Jury Instructions, Civil, Nos. 10.01 and 10.04 (2000) (hereinafter IPI Civil (2000)), the ordinary negligence standard-of-care instructions. Defendant, however, argued that the professional negligence instruction, IPI Civil (2000) No. 105.01, applied to the actions of the CNAs. The trial court reserved ruling on the appropriate jury instruction because defense counsel did not have the exact instruction he intended to tender and the court believed it unfair to ask plaintiff's counsel to respond to an instruction he had been unable to review.
During the trial, plaintiff presented the testimony of, among others, David Jones, an operations manager for Heckman Health Care, and Mary Hendricks, a registered nurse. (Plaintiff had intended to call Donna Bankard, R.N., to testify as to her opinions of the alleged wrongdoings on the part of defendant. In January 2004, the trial court granted defendant's motion to bar Bankard because she had never used a Hoyer lift.) Jones testified that certain new slings and chains were available for Hoyer lifts in August 2000. He also identified the Hoyer instruction manual, which the court admitted into evidence. Hendricks also demonstrated the proper use of the Hoyer lift.
Defendant called Pamela Sue Brown, holder of a Ph.D. in nursing, who testified as to the nursing standard of care in the use of the Hoyer lift. She reviewed numerous documents, including the pleadings, medical records, discovery documents, IDPH report, IDPH investigation materials, internal investigation materials from the nursing home, incident report, internal transfer policy for use of the Hoyer lift, the operator's manual for the Hoyer lift, discovery depositions, and textbooks on transfer techniques. In her opinion, to a reasonable degree of nursing certainty, the CNAs used an acceptable transfer procedure.
Chapman and Butler, the two CNAs who moved the decedent using the Hoyer lift, also testified about what occurred when decedent fell.
The trial court resumed the jury instruction conference on the third day of trial. Plaintiff again offered IPI Civil (2000) Nos. 10.01 and 10.04, and defendant offered IPI Civil (2000) No. 105.01 in lieu of plaintiff's instructions. Defense counsel stated he originally intended only to tender the first paragraph of IPI Civil (2000) No. 105.01 but believed that the second paragraph--informing the jury it could only decide whether the standard of care had been met from expert testimony--was also appropriate. Plaintiff objected to the professional malpractice instruction because it did not apply to the negligence of the CNAs in the nursing home. The court rejected plaintiff's in-structions and instructed the jury on professional negligence.
Defendant moved for a directed verdict at the close of plaintiff's case and again at the close of defendant's case. The trial court denied both motions. On January 14, 2003, the jury returned a verdict in favor of defendant.
Plaintiff filed a motion to vacate the judgment and grant a new trial. Plaintiff claimed the trial court erred by permitting certain comments in defense counsel's opening and closing statements that plaintiff, the independent executor, would receive any damage award; allowing testimony that plaintiff was not related to decedent; and instructing the jury with IPI Civil (2000) No. 105.01 instead of IPI Civil (2000) Nos. 10.01 and 10.04. Although the order indicates the court was troubled by defense counsel's opening statement, the court denied the motion in its entirety.
Plaintiff appealed, arguing (1) the trial court erred in giving the jury a professional negligence instruction for the standard of care of CNAs requiring expert testimony and (2) the arguments and evidence presented that the award would be payable to plaintiff and that plaintiff was not related to decedent prejudiced plaintiff and denied him a fair trial.
Plaintiff filed this case as an ordinary negligence action under the Act. The elements of a cause of action for negligence are (1) the existence of a duty owed by defendant to plaintiff, (2) a breach of that duty, and (3) injury proximately caused by that breach. Parker v. Illinois Masonic Warren Barr Pavilion, 299 Ill. App. 3d 495, 499, 701 N.E. 2d ...