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Paul Graves, Special Administrator of the Estate v. Rosewood Care Center

April 2, 2012


Appeal from the of Circuit Court of Madison County. No. 03-L-1166 Honorable David A. Hylla, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

Rule 23 order filed

February 24, 2012

Motion to publish granted

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Presiding Justice Donovan and Justice Wexstten concurred in the judgment and opinion.


¶ 1 Plaintiff, Paul Graves, special administrator of the estate of Alfred Graves, deceased, filed suit against defendant, Rosewood Care Center, Inc., of Edwardsville, under the Illinois Nursing Home Care Act (Act) (210 ILCS 45/3-601 et seq. (West 2002)), in the circuit court of Madison County. After an initial mistrial for a deadlocked jury, a second trial resulted in a verdict in favor of plaintiff. On appeal, defendant raises issues as to: (1) whether the verdict was against the manifest weight of the evidence, (2) whether the court erred in its issuance of an instruction on the definition of neglect, (3) whether the trial court erred in its issuance of instructions on regulations promulgated pursuant to the Act, (4) whether the trial court abused its discretion by giving an instruction based on IPI 5.01 (Illinois Pattern Jury Instructions, Civil, No. 5.01 (2000)), and (5) whether the trial court erred by admitting into evidence a bill from another nursing home. We affirm.


¶ 3 In April 2001, plaintiff had his elderly father, Alfred Graves, come to his residence to live. This allowed plaintiff and his wife to tender care to Alfred, who was 79 years old.

¶ 4 In January 2003, plaintiff and his wife took a weeklong vacation to Mexico. Plaintiff made arrangements for Alfred to stay at Rosewood for respite care during the trip. On January 17, 2003, Alfred was admitted to Rosewood. That night, Alfred fell in his room, fracturing his hip. Plaintiff filed suit against defendant under the Act (210 ILCS 45/3-601 (West 2002)).

¶ 5 Plaintiff subpoenaed several of the employees of Rosewood to testify at trial. Steve Marsho described his job as marketing to the senior community, primarily through hospitals. As part of his job, Marsho would gather preliminary information or assess prospective residents of Rosewood. Marsho stated that Rosewood also advertised its ability to provide respite care.

¶ 6 On January 14, 2003, three days before Alfred's admission to Rosewood, Marsho went to plaintiff's residence in response to Alfred potentially receiving respite care at Rosewood during plaintiff's vacation. Marsho filled out a level-of-care assessment form, which was reviewed in detail during his testimony. Alfred was assessed at level 3 for several aspects of care, including bathing, dressing, continence, and social requirements. The form provided different descriptions of level 3 according to aspects of care, such as full staff assistance for bathing and requiring diaper products for incontinence. Alfred was diagnosed as level 2 for mobility, indicating he required standby assistance or supervision for transfers. Marsho "did not believe" he reviewed this level-of-care assessment with the director of nursing, but stated that he would be "amazed" if it did not reach nursing staff. Marsho testified that room rates were based on the level of assessment.

¶ 7 Jacqueline Hern, formerly a nurse administrator for Rosewood, testified that Marsho's level-of-care assessment would have been placed in Alfred's financial file. Nonetheless, Hern believed that the level-of-care assessment would have been communicated to the nursing staff.

¶ 8 Tanesha Childress, a licensed practical nurse, testified that she worked as the admitting nurse on the evening Alfred arrived. Childress reviewed a form she filled out on Alfred's entry. Childress testified that she never saw a level-of-care assessment form completed by Marsho, and, on review, Childress agreed that her assessment was inconsistent with Marsho's, particularly regarding whether Alfred required standby assistance for supervision and transfers. Childress could not recall where she got the information that would lead her to believe that Alfred was independent with transfers.

¶ 9 Childress also admitted that under a nursing services manual the admitting nurse was to complete a nursing admission checklist within 24 hours of admission of a resident. The first item on the checklist was for the resident to be oriented on how to use the call light and have it in reach. Childress marked on Alfred's chart that he arrived at 6 p.m., but that was the only note she made on his chart.

¶ 10 Nurse Nicole Jacks testified that she worked the night shift starting at 10 p.m. At 11 p.m., Jacks noted on Alfred's chart that, according to the outgoing nurse, Alfred refused to remove his coat or other clothing and was lying on top of his bed. The next note in the chart, marked 12:25 a.m., indicated that Alfred's roommate was in the hallway waving his hands and that Alfred was lying on the floor on his left side in a fetal position. Alfred reported pain in his left hip but denied having hit his head. Alfred stated he did not want to go to the hospital. A delayed entry on the chart indicated that Alfred's roommate indicated that Alfred fell hard. The entry also indicated that when Jacks reoriented Alfred to the call light she discovered the call light was not working and had it replaced.

¶ 11 Plaintiff testified that by late 2002 Alfred had developed significant balance problems. For instance, plaintiff testified that he had told Marsho that Alfred had slipped off the toilet a couple of times in December despite having a toilet seat extender. Plaintiff also testified that Alfred had suffered from dementia, with his short-term memory "completely gone," and that Alfred was losing weight. Plaintiff described how he was reluctant to leave Alfred alone in the house, even to run to the store for milk, because he was afraid Alfred would hurt himself or accidentally set the house on fire. Plaintiff testified that he and his wife worked different shifts and that one of them was always around Alfred unless he was napping.

¶ 12 On cross-examination, plaintiff admitted that Alfred did not get a cane until 2002 and that he was capable of moving around the lower level of the house with the assistance of a cane. In particular, defendant points to the following exchange:

"Q. [Attorney for defendant:] Did you ever--did he ever call you to help him go to the bathroom?

A. No. Q. Did he ever need any assistance while he lived there going to the bathroom?

A. As far as what? Q. Did anybody--did either--you said you never helped him to go the bathroom. Did your wife ever go in and physically walk him to the bathroom? Did he need anybody to do that?

A. Not during the--not really. No. Q. Okay. And, in fact, in the whole time that he lived in the home, he didn't need anybody to walk around with him and hold on to him while he was walking around, did he?

A. No. He was able to move with his cane.

Q. All right.

A. And he was familiar with the home.

Q. The most he ever needed was a cane.

A. Yes."

¶ 13 Defendant also points to plaintiff's testimony at the end of cross-examination regarding Alfred's having slipped off the toilet seat in December 2002. Plaintiff testified:

"Q. [Attorney for defendant:] How is it that he was able to fall in your home, slip off the toilet?

A. We had a toilet seat extension,--

Q. Uh-huh.

A. --the little plastic--it looks like a big plastic toilet seat that sits on top of a seat to allow them to--to not have to sit down ...

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