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Groeller v. The Evergreen Healthcare Ctr. LLC

Court of Appeals of Illinois, First District, Fourth Division

April 30, 2015

WILLIAM M. GROELLER, JR., Individually and as Administrator of 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.

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. No. 09 L 2821. Honorable Thomas E. Flanagan Judge Presiding.

For William M. Groeller, Jr., Appellant: Peter R. Coladarci, Peter R. Coladarci, Ltd., Chicago.

For Evergreen Healthcare Center LLC, Appellee: Robert Marc Chemers, John J. Walsh III, Scott L. Howie, Pretzel & Stouffer, Chartered, Chicago.

JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices Ellis and Cobbs concurred in the judgment and opinion.

OPINION

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HOWSE, JUSTICE.

[¶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 (particular 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

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defendant) and Boulevard Healthcare Management, LLC (Boulevard), owned, operated, or managed Evergreen Healthcare Center and was the licensee 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

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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 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 ...

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