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Robert Bakes v. St. Alexius Medical Center

June 23, 2011


Appeal from the Circuit Court of Cook County. No. 2005 L 011620 Honorable James P. Flannery, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Lavin

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Pucinski and Sterba concurred in the judgment and opinion.


Plaintiff Robert Bakes, a heavily medicated, post-surgical patient who attempted to leave St. Alexius hospital against medical advice, claims that he was injured when security guards Matthew Nowikowski and John Walstad thwarted his exit. He responded by lashing out with his crutches. Ultimately, he settled in a wheelchair and waited for his wife to take him home. He sued for battery and the jury found in favor of the defendants. He appeals on a variety of issues, including the propriety of the burden of proof instruction regarding the tort of battery. We affirm.


The relevant testimony of the various witnesses at trial pertinent to Bakes' appeal will be summarized below. Any additional facts as needed will be recited within the following analysis.

Bakes testified that his right knee was injured in a 2000 fall while descending a flight of stairs. He sought medical advice from Dr. Freedberg, who recommended a procedure to reconstruct the injured knee and to repair cartilage and ligament damage. The knee surgery was performed by Dr. Freedberg on July 17, 2000, at St. Alexius. Bakes testified that when he woke from the surgery, his knee and toes were in great pain. As to his toes, Bakes stated that the "nerves felt like they were popping," and he described it as "almost like a fireworks feeling." The pain persisted in his knee and toes over the next few days and was great enough such that Bakes did not wish to participate in any physical therapy. Bakes testified that throughout this time, his knee was heavily bandaged, his leg was set straight in an immobilizer and he required crutches to ambulate.

At around 5 p.m. on July 21, 2000, approximately four days after the surgery, Bakes was notified by nurse Tejal Patel of his imminent discharge and was presented with a choice of pain medication to take home. Bakes replied that he was upset and did not understand why he was being released. He then told the nurse that he was "going to go wait outside," and that he wished to immediately leave the hospital. Despite his condition, Bakes managed to get out of his bed and into the restroom, where he promptly fell. He was able to stand up and use his crutches to make his way out of his fourth-floor room and to the elevator, passing four nurses without incident. As Bakes took the elevator down to the first floor, he realized that nurse Carol Szafranksi was at his side, asking him to relax. Bakes felt certain he did not need to calm down. Upon reaching the first floor, he perambulated on crutches to the exit which he said consisted of a revolving door and two adjoining standard doors. Bakes testified he pushed the right-side door open and partially stepped out, but as he was getting his crutches through the door, he was approached by security guards Nowikowski and Walstad. They positioned themselves so they hemmed Bakes in between themselves. They then asked Bakes where he was going.*fn1 Bakes answered he was going to go outside, to which the security guards responded, "No, you're not." Bakes nonetheless continued his egress and testified that one of the guards pulled the door shut and "slammed" it on his right foot, causing him to scream out in pain. Bakes then attempted to leave through the adjacent revolving door, where the security guards "grabbed the revolving door and slammed it" on his foot. The next thing Bakes remembered was sitting in a wheelchair near the exit, with nurse Patel offering him morphine for his pain. He refused this offer. Bakes next remembered waking up in his bed and being unaware as to how he arrived there. His wife arrived shortly thereafter, and after receiving discharge instruction from the nurses, he was taken home by his wife.

Bakes testified that he was unable to walk for over five weeks and that he had constant pain in his entire right leg and foot. Specifically, Bakes described his foot as hypersensitive. Although Bakes' knee and leg recovered over the passing months, the constant hypersensitivity in his foot did not change. Eventually, Bakes again consulted Dr. Freedberg, who ordered a variety of tests to be performed and ultimately recommended surgery on his foot. Bakes stated the surgery, which occurred in early 2002, relieved the "firework kind of display" in his toes but did not help with the hypersensitivity, which still persisted at the time of the underlying trial.

Matthew Nowikowski testified that on July 21, 2000, he was at St. Alexius working as security guard under Initial Security. Although he was posted at St. Alexius, Nowikowski testified that Initial Security, and not St. Alexius, was completely responsible in instructing him how to conduct himself. He further testified that as a security guard, he acknowledged he did not have any police powers or any more of a right to arrest or stop an individual than the average citizen. Turning back to the day of the incident, Nowikowksi stated he received a radio call requesting assistance regarding Bakes, whom he described as combative. When Nowikowksi observed Bakes on the first floor, he saw that Bakes was on crutches and in street clothes, with a bandaged foot. Nowikowksi differed with Bakes on the number of exit doors, testifying that there was one "handicapped" door and one revolving door. The handicapped door was operated by a push button, and when activated, the door remained open for a period of time.

As Bakes approached the revolving door, the nursing staff told Nowikowski that Bakes was not allowed to leave the hospital. Nowikowksi indicated that there was no time to discuss the situation with the nurses so he quickly followed the given instructions. Nowikowski stepped in between Bakes and the door and told him, "I can't let you go." In stepping in front of Bakes, Nowikowski admitted he accidentally stepped on Bakes' foot, which caused a shout of pain. Bakes nevertheless moved through the door, striking Nowikowski in the shin with a crutch in the process. Nowikowski stated it may have been possible that he put his hands down or touched Bakes in order to prevent himself from being whacked again by the patient's crutch. Nowikowski then saw nurse Szafranski arrive with a wheelchair and Bakes, who was visibly fatigued, slumped down in the wheelchair.

John Walstad testified that he was employed by Initial Security in July 2000 and was working at St. Alexius along with Nowikowski. His testimony regarding the underlying incident was consistent with Nowikowski's testimony. Walstad testified that when he observed the patient near the revolving door, Walstad put his foot in front of the door to prevent it from turning. Walstad was presented with the incident report written by him on that day which indicated that "security *** confronted the patient at the handicap exit door," but Walstad testified that the entire incident took place near the revolving door and not by the handicap exit door. Walstad also stated that Bakes had struck him in the groin while attempting to leave, although Walstad never touched him until he later assisted Bakes into the wheelchair when it was brought by nurse Szafranski. Finally, Walstad indicated that although he was asked by the nursing staff to prevent Bakes from exiting, he did not have the time to inquire their reasoning. He further acknowledged that he was only to follow the instructions of his employer, Initial Security, and that the nursing staff does not actually give the security guards any orders.

Nurse Tejal Patel testified that on the afternoon of July 21, 2000, she was working at St. Alexius as a nurse on the orthopedic floor and that Bakes was one of her patients. Dr. O'Keefe had entered an order discharging Bakes, which nurse Patel was planning to effect later that afternoon. She first conducted an initial assessment of Bakes where he stated that he was relatively comfortable and did not then require pain medication. Based on her observations, nurse Patel determined that Bakes was ready to be discharged. She informed Bakes accordingly and provided a choice of pain medication to use at home, but Bakes became very upset upon hearing that he was to be discharged and started moving around and hyperventilating. Bakes also expressed that the offered pain medications were insufficient and stated, "These medications are not good enough. I thought I was supposed to be doped up." Nurse Patel observed that Bakes was behaving erratically and using his crutches improperly, which she believed could damage his knee and leg. She was concerned that Bakes was not listening to her discharge instructions and felt that he was not acting safely. She told Bakes that he could still stay in the hospital if he was not ready to leave, but he did not appear to be listening.

Nurse Patel offered to call Bakes' wife, but he responded that he did not want to wait and that he was just going to walk home. Nurse Patel told him she would call his wife because he could not simply walk out, due to his physical condition and his on-board medications, and that she would call his wife, friend, or a cab to take him home. Bakes angrily disregarded her, and during his attempt to leave, he insisted to nurse Patel that while he was in a lot of pain, he could acquire "better drugs outside." Nurse Patel also testified that Bakes threatened that "he was going to send his gang members to take care of [her] and [her] family."

Nurse Patel then notified her charge nurse and supervisor of the escalating situation and contacted Bakes' wife at that time, asking her to come to the hospital. When nurse Patel next saw Bakes, he was on the first floor being assisted into a wheelchair, and she offered him a dose of morphine for his pain which he refused. Upon being returned to his room, Bakes reiterated his previous threat to nurse Patel, and when his wife arrived shortly thereafter, he threatened to injure her as well. Nurse Patel related the discharge instructions to Bakes and his wife, and then Bakes was taken home.

Nurse Carol Szafranski testified that on the date of the incident, she was working at St. Alexius when she received a call from nurse Patel seeking assistance with Bakes. When she arrived at his room, she observed Bakes was "agitated, upset, walking around the room, throwing things down, [and] complaining about pain medication." As Bakes left his room, he continued to complain of his discomfort and pain, and also stated his intention to walk home, which was approximately 10 miles away. Nurse Szafranski followed him and saw that Bakes was putting weight on the leg that had been operated on and she was concerned he could reinjure or otherwise damage it. Although she tried to reason with Bakes and persuade him to not leave, he was unresponsive and did not appear to be listening to her. Nurse Szafranski accompanied Bakes as he went down the elevator and upon arriving on the first floor, nurse Szafranski briefly left Bakes to retrieve a wheelchair.

When she returned, she saw Bakes near the exit with Nowikowski and Walstad standing by him. She directed the security guards to prevent Bakes from leaving because she was concerned by the fact Bakes was not properly taking care of his operative leg and was attempting to walk home. She did not see Nowikowski or Walstad touch Bakes at any time. She also admitted that Nowikowski and Walstad were not hospital employees and, while she could ask for their assistance, she had no direct control over them. When nurse Szafranski brought the wheelchair to Bakes, he sat down in it and she brought him back to his room. Bakes' wife arrived shortly thereafter; however, nurse Szafranski testified that Bakes continued to march around his room and yell. Bakes eventually calmed down, and after nurse Szafranski ensured that he would not be walking home, she deemed Bakes was no longer a danger to himself and discharged him under the care of his wife.

Dr. Yelena Tumashova provided medical expert opinion on behalf of St. Alexius. She testified that after a review of Bakes' medical records, she concluded that the persisting nerve condition in Bakes' foot was the result of the knee surgery rather than the result of any incident with the security guards. She further opined that numbness and pain in his foot could have been due to nerve dysfunction caused by the surgery or a cast that was too tight. All the medical records indicated to Dr. Tumashova that Bakes' issues in his right foot were present immediately after the surgery, prior to any incident with the security guards. She testified that Bakes' nerve injury, discovered by an electromyography (EMG) examination, could not have been caused by someone simply stepping on his foot. Furthermore, the EMG study also suggested that, due to the location of the complaint, it would be extremely unlikely that the nerve injury was caused by his leg becoming jammed in a door. Dr. Tumashova also noted a lack of scar tissue and the absence of damage to any adjacent nerves and thus concluded that there was no evidence that a physical impact had caused physical damage to the nerve. Finally, she testified that Bakes could have injured his foot by walking inappropriately during his recovery, as the foot was vulnerable from surgery and bearing weight on it could compromise the foot's blood supply and nerves.

After the trial, the jury returned a verdict in favor of all defendants and against Bakes.

Bakes filed this timely appeal.


A. Battery Instruction

Bakes' overarching contention on appeal is that the trial court's jury instruction on battery misstated the law and was therefore erroneous. It is within the trial court's considerable discretion to give or deny a jury instruction. Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103, 121 (2003). In determining whether this discretion was abused, we will consider the instructions in their entirety and determine whether the jury was fairly, fully, and comprehensively informed as to the relevant legal principles. Id. at 122. Even where a trial court has given faulty instructions, a reviewing court ordinarily will not reverse unless the instructions clearly misled the jury ...

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