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Grauer v. Oaks

Court of Appeals of Illinois, First District, Third Division

August 14, 2019

SUSAN R. GRAUER and THOMAS M. TRENDEL, as Independent Coexecutors of the Estate of Dolores Trendel, Deceased, Plaintiffs-Appellees,
v.
CLARE OAKS, an Illinois Not-For-Profit Corporation d/b/a Assisi at Clare Oaks and/or Assisi Healthcare Center at Clare Oaks; CRSA/LCS MANAGEMENT, LLC, an Iowa Limited Liability Company; CRSA/LCS EMPLOYMENT SERVICES, LLC, an Iowa Limited Liability Company; PERCIVAL BIGOL, M.D.; PERCIVAL A. BIGOL, M.D., LTD.; and MICHELLE HART-CARLSON, Defendants(CLARE OAKS, Defendant-Appellant)

          Appeal from the Circuit Court of Cook County No. 13 L 2472 The Honorable Thomas V. Lyons, II, Judge Presiding.

          Karen Kies DeGrand and Meagan P. VanderWeele, of Donohue Brown Mathewson & Smyth LLC, Matthew R. Henderson and Carson R. Griffis, of Hinshaw & Culbertson LLP, and Michael L. Vittori and Michael E. Zidek, of Wilson Elser Moskowitz Edelman & Dicker LLP, all of Chicago, for appellant.

          Michael W. Rathsack, Susan L. Novosad, Steven M. Levin, Margaret P. Battersby Black, and Daniel D. Goldfaden, all of Chicago, for appellees.

          PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

          OPINION

          FITZGERALD SMITH PRESIDING JUSTICE

         ¶ 1 The defendant-appellant, Clare Oaks, an Illinois not-for-profit corporation doing business as Assisi at Clare Oaks and Assisi Healthcare Center at Clare Oaks (Clare Oaks), appeals to this court following a jury verdict against it and in favor of the plaintiffs-appellees, Susan R. Grauer and Thomas M. Trendel, as independent coexecutors of the estate of Dolores Trendel, deceased, in the circuit court of Cook County, on claims alleging violations of the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2016)), common-law negligence, and wrongful death. The plaintiffs' claims arose out of injuries that they allege Dolores Trendel (Trendel) sustained when she suffered a stroke on March 30, 2011, two weeks after she stopped receiving Coumadin, a medication that reduces the risk of stroke in individuals with atrial fibrillation. Trendel died on March 15, 2015, and the plaintiffs allege that her death was due to complications from the stroke. Clare Oaks was the licensee licensed by the Department of Public Health to operate the facility at which Trendel was a resident at the time of the occurrence.

         ¶ 2 The plaintiffs' claims against Clare Oaks were tried to a jury along with their claims against several other defendants who are not parties to this appeal. One such defendant, Michelle Hart-Carlson, was the administrator of Clare Oaks. The jury found in favor of Hart-Carlson and against the plaintiffs on the claims against her. Other such defendants were Percival Bigol, M.D., and his medical practice group, Percival A. Bigol, M.D., Ltd. (collectively Dr. Bigol). Dr. Bigol was the medical director of Clare Oaks and Trendel's attending physician while she was a resident there. The plaintiffs brought claims against Dr. Bigol in both capacities, but the jury found in favor of Dr. Bigol and against the plaintiffs on all claims against him.[1]

         ¶ 3 Following the jury verdict, the trial court denied Clare Oaks' posttrial motion for a new trial. The trial court also granted a motion by the plaintiffs that Clare Oaks pay their attorney fees and costs pursuant to section 3-602 of the Nursing Home Care Act (id. § 3-602). Clare Oaks argues on appeal that a new trial should be ordered based on a number of erroneous rulings by the trial court during the trial, as well as because of certain remarks by the attorneys and witnesses for the plaintiffs. Clare Oaks also appeals the order awarding attorney fees and costs. For the following reasons, we affirm in part and reverse in part.

         ¶ 4 I. BACKGROUND

         ¶ 5 On February 23, 2011, Trendel was admitted to Clare Oaks for rehabilitation after she fractured her ankle. Then 85 years of age, she also suffered from atrial fibrillation, a heart condition that put her at risk for developing blood clots that, in turn, increased her risk of stroke. To reduce this risk, Trendel had been taking the medication Coumadin, commonly referred to as a "blood thinner," for several years. Upon her admission to Clare Oaks, her dosage of Coumadin was managed by Dr. Bigol. Although the evidence demonstrated some irregularities in this regard, Trendel essentially received her prescribed dosage of Coumadin from the time of her admission through March 15, 2011. On March 16, 2011, a nurse at Clare Oaks named Christina Martinez documented on a lab report form and in a nurse's note that she had spoken by telephone with Dr. Bigol and he had ordered Trendel's Coumadin to be discontinued. Dr. Bigol disputed that he had given this order. It is undisputed that, although Martinez documented the order in two places, she did not document it in the "physician orders" section of Trendel's medical chart, sometimes referred to by the witnesses as the "physician order sheet" or a "telephone order." It is also undisputed that Trendel did not receive Coumadin after March 16, 2011, and she suffered a stroke on March 30, 2011.

         ¶ 6 A. Proceedings Concerning Clare Oaks' Nursing Expert Barbara McFadden

         ¶ 7 The trial of this case was scheduled to commence on July 10, 2017. The record reflects that on June 26, 2017, the parties first appeared before the assigned trial judge and filed their respective motions in limine. No transcript of the hearing that occurred that day is part of the record on appeal. The matter was continued to June 27, 2017, and the first motion in limine that the trial court addressed that day involved the testimony of Barbara McFadden, an expert witness retained by Clare Oaks, whose evidence deposition was scheduled to be taken in New York on June 29, 2017. According to that motion, Clare Oaks had disclosed that McFadden would testify that Clare Oaks and its staff complied with all applicable standards of care. However, the motion stated that, after being questioned and shown additional materials at her discovery deposition, McFadden agreed that Martinez had in fact violated the standard of care by failing to write on the physician order sheet in Trendel's chart that Dr. Bigol had ordered Trendel's Coumadin to be discontinued on March 16, 2011, and by failing to indicate that it was discontinued in Trendel's medication administration record. The plaintiffs' motion also stated that McFadden had agreed in her discovery deposition that Clare Oaks' director of nursing, Lakeisha Coleman, violated the standard of care applicable to her by failing to verify that all of Dr. Bigol's verbal and written orders were consistently executed and documented in Trendel's chart by the Clare Oaks staff and that Coleman also failed to comply with all applicable state and federal regulations. Finally, the motion stated that McFadden had agreed in her deposition that the nursing staff of Clare Oaks had violated the standard of care by failing to administer Coumadin to Trendel in accordance with physician orders and by failing to properly document orders by Dr. Bigol. The plaintiffs' motion sought to bar McFadden from giving trial testimony on these points that was inconsistent with her discovery deposition testimony.

         ¶ 8 The trial court indicated it had reviewed Clare Oaks' response to this motion and read McFadden's discovery deposition in its entirety. In ruling, the trial court stated, "I have to confess, I have never been confronted with a situation like this. *** I think that you will find that Ms. McFadden will not be a very valuable witness." The trial court then ruled that McFadden would be limited to expressing those opinions disclosed in Clare Oaks' written disclosures and in her discovery deposition, provided they were consistent, and it would rule on specific objections after her evidence deposition had been taken.

         ¶ 9 The parties returned to court on June 30, 2017, and informed the trial court that McFadden's evidence deposition had not been taken as scheduled the preceding day. Clare Oaks' attorney stated to the trial court that McFadden's medical condition had prevented the deposition from proceeding but he was unaware of her present condition. The plaintiffs' attorney then stated to the trial court that the reason McFadden was testifying by evidence deposition was because she had previously informed the parties that she was scheduled to undergo knee replacement surgery on July 20, 2017. The plaintiffs' attorney stated that the attorneys had traveled to New York as planned to take the deposition. She stated that McFadden was present at the location where the deposition was to take place but, prior to commencing, she stated that she felt unwell and was calling a family member to take her home or to a hospital. The plaintiffs' attorney stated that she had offered to stay overnight and take the deposition the following day but was told that would not be fruitful.

         ¶ 10 In light of the impending trial date, the trial court ordered the attorney for Clare Oaks to inform the other attorneys by the end of the day regarding his intentions with respect to obtaining McFadden's trial testimony. In doing so, the trial court stated that if Clare Oaks was planning on moving to continue the trial due to McFadden's health issues, "that motion has to be brought sooner than later in front of my presiding judge." The attorney for Clare Oaks then asked the trial court if it was possible for McFadden to testify live through the use of a video conferencing system, instead of appearing in person at the trial. The trial court stated that this was possible.

         ¶ 11 It does not appear from the record that any further discussion occurred regarding McFadden until July 10, 2017, the day that the trial was scheduled to commence. On that day, Clare Oaks presented the trial court with an emergency motion to continue the trial on the basis of McFadden's unavailability. The motion itself indicated that McFadden's health problems were continuing and that she "will be examined by a cardiologist tomorrow and has been informed that she will most likely have to undergo an angiogram." No affidavit was attached to the motion. Instead, a letter from a physician was attached. The letter, dated July 5, 2017, stated that McFadden was currently under the author's care for lumbar radiculopathy and disc herniation and that any undue stress would exacerbate her symptoms, causing debilitating back pain. It stated that she is unable to testify "because she is unable to sit or stand for long periods of time due to her condition."

         ¶ 12 The trial judge transferred the motion to the presiding judge of the circuit court's law division. The plaintiffs' attorney objected to the motion on the basis that it failed to satisfy the requirements of Illinois Supreme Court Rule 231(a) (eff. Jan. 1, 1970). The plaintiffs' attorney recited the procedural history set forth above concerning McFadden. The presiding judge denied the motion, and the case was transferred back to the trial judge to proceed with the jury trial.

         ¶ 13 B. Proceedings at Trial

         ¶ 14 The trial commenced with the testimony of Christine Pignatiello, the plaintiffs' expert witness on issues concerning nursing and nursing home administration. Pignatiello testified that she was licensed as a registered nurse and nursing home administrator, and she worked as the executive director of a 133-bed skilled nursing facility. She had previously worked as a director of nursing at nursing homes during various periods in her career. She testified that she reviewed various medical records and depositions pertinent to the case, as well as federal and state regulations pertaining to nursing homes. Pignatiello testified that one of the depositions she reviewed was McFadden's and that in doing so she discovered that McFadden had identified instances in which Clare Oaks failed to meet the standard of care. Pignatiello stated that she had discovered that McFadden agreed that Martinez should have written a "physician order" when she spoke with Dr. Bigol on March 16, 2011, and she agreed that Clare Oaks' director of nursing failed to ensure that Clare Oaks' policies and procedures were followed.

         ¶ 15 Pignatiello also testified that certain federal regulations exist to "standardize the expectations that exist for all for all nursing facilities in the country." (These are called OBRA regulations, as they were enacted pursuant to the Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, 101 Stat. 1330.) Pignatiello testified that the purpose of the OBRA regulations is "to prevent harm" and "ensure that we deliver the best care possible" to patients.

         ¶ 16 Pignatiello explained from her review that Trendel had been admitted to Clare Oaks on February 23, 2011, for rehabilitation. Trendel had atrial fibrillation, a condition in which the heart does not beat regularly, and this increased her risk for developing blood clots and, in turn, her risk of suffering a stroke. Pignatiello testified that the drug usually given to people with atrial fibrillation is Coumadin, commonly referred to as a blood thinner, which works by increasing the time it takes for blood to clot. She testified that a patient's dose is determined by a physician, and this is based on a laboratory result obtained by a nurse called the international normalization ratio (INR). She explained that the goal is to keep a patient taking Coumadin in the therapeutic range of the INR, meaning that a range between 2.0 and 3.0 is "where we want it to be." Pignatiello explained the training that nurses undergo to learn about atrial fibrillation, its management with Coumadin, and the significance of a patient's INR.

         ¶ 17 Pignatiello explained that Trendel had stopped receiving Coumadin as of March 16, 2011. Trendel underwent a test that day that indicated her INR was 1.38, which was a low result. She stated that Trendel's INR had been "jumping up and down" prior to that date and thus she had been undergoing more frequent tests of her INR to keep it within the therapeutic range. She testified that the standard of care and Clare Oaks' own policies and procedures required Martinez, as the nurse caring for Trendel who obtained that INR result, to inform Dr. Bigol of the INR result of 1.38. Pignatiello testified that if, as Martinez stated in her deposition, Dr. Bigol had given Martinez an order that Trendel's Coumadin was to be discontinued that day, she would have expected Martinez to have reminded Dr. Bigol that Trendel had atrial fibrillation and questioned why Coumadin was being discontinued for her. Pignatiello explained that Martinez had testified that she did not know that she could question a physician and she felt that she should follow the physician's order regardless of what the physician said.

         ¶ 18 Pignatiello testified that if Dr. Bigol had persisted in giving her this order, Martinez should have written the order in the appropriate place of the chart and also informed a supervisor about it, as it would have been an unexpected order for a patient with atrial fibrillation. Pignatiello testified that the regulations required a nurse to document an order given by a physician in the "physician orders" section of a patient's medical record. She testified that if Dr. Bigol had given an order to Martinez that Trendel's Coumadin was to be discontinued, Martinez should have documented this order in the "physician orders" section of her chart, where Dr. Bigol would eventually have seen it. Martinez did not do this. Pignatiello testified that Martinez failed to comply with the standard of care by failing to bring the order to a supervisor's attention. Pignatiello also testified that Clare Oaks had a policy and procedure in place to address this situation, which stated that a nurse concerned about a doctor's order should discuss it with the medical director and a supervisor. She testified that Clare Oaks had policies and procedures in existence but Clare Oaks' director of nursing did not educate Martinez or the rest of the nurses about these policies and, thus, Martinez was not prepared to know what to do. She testified that, at the time Martinez was providing care to Trendel, she was a new nurse and Clare Oaks had not provided her with adequate training or orientation to do so.

         ¶ 19 Pignatiello cited additional examples of irregularities in Trendel's chart with respect to her receiving Coumadin appropriately and the staff obtaining her INR results and documenting them in the correct place in her chart. Among these was an incident in which the nursing staff of Clare Oaks had failed to administer her Coumadin as ordered on February 27, 2011. She testified that Trendel's INR the previous day had been 1.92 and that, if Trendel had received her Coumadin as ordered, she "would expect that [her INR] would be maintained at or a little higher than that." Pignatiello testified that this posed a risk of harm to Trendel, as her risk of stroke was increased when she did not receive the Coumadin ordered by her physician. She testified that Coleman, as a reasonably careful director of nursing, should have had systems in place, such as a chart-auditing process, to identify errors such as these. Although Pignatiello stated that it was "mind boggling" to her how many errors occurred, this comment was stricken by the trial court. She testified that if Clare Oaks was acting as a reasonably careful nursing facility, including by conducting chart audits, the types of errors present in Trendel's chart would not have occurred.

         ¶ 20 Pignatiello testified that Clare Oaks also had a policy in place that staff should use a Coumadin flow sheet to monitor trends in patients' Coumadin dosage and response but Clare Oaks was not using Coumadin flow sheets. She testified that, if Clare Oaks had been making use of such a form, most likely somebody would have realized that Trendel was not receiving Coumadin after March 16, 2011, and questioned it. Pignatiello testified that, if Clare Oaks was acting as a reasonably careful skilled nursing facility, this form would have been in place.

         ¶ 21 Pignatiello testified that section 2-104(b) of the Nursing Home Care Act required in part that all medical treatment and procedures be administered as ordered by a physician and that the facility's director of nursing or charge nurse designee shall review all new physician orders within 24 hours after issuance to assure the facility is in compliance. See 210 ILCS 45/2-104(b) (West 2010). She testified that Clare Oaks failed to comply with this provision and in doing so it violated the standard of care.

         ¶ 22 On cross-examination, Pignatiello agreed that the phrases "Dr. Bigol notified" and "discontinue all Coumadin 3/16/11" were written on Trendel's lab report from March 16, 2011. She also agreed that, on that date, Martinez had prepared an electronic progress note indicating that Dr. Bigol discontinued all Coumadin doses. She was shown two progress notes written by a nurse practitioner specializing in physical medicine and rehabilitation. The notes were dated March 23, 2011, and March 25, 2011, and both notes reflected that Trendel's INR had been below the therapeutic range and that her Coumadin had been discontinued on March 16. Pignatiello agreed that these were places within Trendel's chart where it could have been seen that she was not taking Coumadin after March 16, prior to her stroke on March 30, 2011. Pignatiello was also asked on cross-examination whether the OBRA regulations had any other purpose beyond preventing harm to the patient. Upon objection, a sidebar was taken, in which the attorneys discussed that an additional purpose of the OBRA regulations concerned eligibility for Medicare and Medicaid. Outside the presence of the jury, the trial judge cautioned the witness not to mention Medicare or Medicaid specifically in answering the question. Upon returning from the sidebar, counsel proceeded to ask a different question on another topic.

         ¶ 23 On redirect examination, Pignatiello testified that she had reviewed McFadden's opinion that it was insufficient for a nurse to document a conversation with a physician about discontinuing Coumadin on a lab report or a nurse's note and, instead, it must be documented in a physician's order. She also confirmed that one of Clare Oaks' policies and procedures required that drug orders be recorded on the physician's order sheet in the patient's chart.

         ¶ 24 Edward Feldmann, M.D., the plaintiffs' expert witness in neurology, testified that on March 30, 2011, Trendel suffered a cardioembolic stroke, in which a blood clot came from the heart, passed into the brain, and blocked an artery. He explained she had atrial fibrillation, a condition that allows blood to pool in the atria of the heart, where it can clot and be shot out to other parts of the body. This put her at an increased risk for stroke. He explained that she was treated for this with Coumadin, which makes it harder for blood to clot and thereby decreased her risk of stroke by about two-thirds. He explained the INR and that the goal is for a patient's INR to be between 2 and 3. He testified that on March 16, 2011, Trendel's INR was 1.38. This meant she was not getting the expected protection from a stroke. He testified that, after that date, Trendel did not receive any further Coumadin and she did not undergo any further testing of her INR until March 30, when her INR was 1.07. He testified that if Trendel had been receiving Coumadin between March 16 and March 30, more likely than not she would not have suffered a stroke.

         ¶ 25 On cross-examination, Dr. Feldmann agreed that Trendel was at increased risk for stroke due to factors unrelated to her atrial fibrillation, including being diabetic and hypertensive, her gender, and her age and that Coumadin does not eliminate all risk of stroke for these conditions. On redirect examination, Dr. Feldmann stated that these other risk factors did not cause Trendel's stroke but rather they made her atrial fibrillation more risky.

         ¶ 26 At several points prior to the cross-examination of Dr. Feldmann, the trial court addressed the issue of the extent to which the attorney for Clare Oaks could make use of a letter to Dr. Bigol from cardiologist Andrei M. Pop, M.D., dated March 22, 2011. In that letter, Dr. Pop informed Dr. Bigol that he had seen Trendel that day. As part of his assessment and plan, Dr. Pop had noted her atrial fibrillation and written, "off [C]oumadin per Dr. Bigol. Unsure of reason for discontinuation." This issue had initially come up during motions in limine, when Dr. Bigol's attorneys sought to bar use of it on the basis that the evidence showed it was not actually received by Dr. Bigol until April 4, 2011, after Trendel's stroke had already occurred. In argument, the attorney for Clare Oaks had informed the trial court that he was not planning to introduce the letter into evidence in Clare Oaks' case-in-chief, but he wanted to use it on cross-examination of Dr. Feldmann to ask him about the fact that Dr. Pop did not place Trendel back on Coumadin pursuant to the note. The trial court ruled that, because no expert testimony had been disclosed that criticized Dr. Pop or stated that he failed to meet the standard of care, Clare Oaks' attorney could not use the letter for that specific purpose. The trial court ruled that other uses could be made of the letter on cross-examination, if it was one of the materials Dr. Feldmann relied upon in forming his opinions. Cross-examination proceeded, and the attorney for Clare Oaks did not ask Dr. Feldmann any questions about the letter.

         ¶ 27 Coleman testified that she was a registered nurse who served as the director of nursing for Clare Oaks between August 2010 and July 2011. She testified that, as director of nursing, she was responsible under the federal and state regulations for supervising and overseeing the nursing staff and for the orienting and training of new nurses. She testified that the standard of care requires that, when a physician gives a verbal order to a nurse over the telephone, the nurse must write the order on a physician order sheet or a telephone order sheet in the patient's chart, where it can ultimately be signed by the physician. She testified that a nurse can make a note on a lab report but it must be then transferred to a physician order or a telephone order sheet. She agreed that Martinez did not do this with respect to the notation to discontinue Coumadin on Trendel's March 16, 2011, lab report. She testified that Clare Oaks did not use a Coumadin flow sheet at the time of Trendel's treatment, but rather the staff would just use the lab sheets instead.

         ¶ 28 Coleman testified that the judgment of whether Coumadin should be discontinued if a patient's INR was below the therapeutic range was for a physician to make. She agreed that she would expect the nurses that she supervises to follow the policy and procedure of Clare Oaks that, if they have concerns about how test results have been handled, they should communicate such concerns to the director of nursing or the medical director. She testified that nurses should know that it is appropriate to question a physician's orders and that they do not have to blindly follow them. She was questioned extensively about the nightly chart-audit process that Clare Oaks had in place for ensuring that all orders that were given were documented appropriately in the patient's chart and that medications were administered to patients as ordered. She was questioned about various inconsistencies in Trendel's chart concerning the administration of Coumadin to Trendel and why the chart-audit process did not reveal these inconsistencies.

         ¶ 29 Hart-Carlson testified that she was the administrator of Clare Oaks as of the time when Trendel was a resident there. She testified that she is not a nurse. In her role as administrator, she oversaw the overall operation of the facility, including social services, activities, admissions, marketing, and the nursing department. Her responsibilities as administrator involved managing department directors, including Coleman as director of nursing. She testified that the director of nursing was responsible for properly managing a patient's medication at Clare Oaks. She also testified that, as administrator, she had a role along with the director of nursing in making sure that Clare Oaks' policies and procedures were implemented. She testified that, at some point prior to Coleman's termination in the summer of 2011, although she did not know when, she became aware that Coleman was not making sure that the staff was following policies and procedures. She thus had a conversation with Coleman in which they discussed that Coleman needed to improve in her role as director of nursing to ensure that the staff was following the policies and procedures. Hart-Carlson also testified about the chart-audit process that existed at Clare Oaks and that the purpose of the chart audit was to ensure that medications that were ordered, held, or discontinued were properly reflected on the patient's medication administration record. She testified that Coleman was responsible for managing the chart audit process. She also testified that she had acted as a reasonably careful administrator at Clare Oaks in 2011.

         ¶ 30 Martinez testified that, in March 2011, she was a new nurse who had just started working at Clare Oaks. She had never previously worked at any other facility prior to working there. She did not undergo any formal training program when she started working at Clare Oaks, but rather she shadowed another nurse. She testified that she did not remember whether she had ever read Clare Oaks' policy and procedure manual. She had no independent memory of caring for Trendel or of speaking to Dr. Bigol on March 16, 2011. Based on her charting, she believes she had a conversation with Dr. Bigol that day in which she reported Trendel's lab results to him, including that her INR was 1.38. She agreed that, if Dr. Bigol gave her an order to discontinue the Coumadin, she was required to write a physician order on a telephone order sheet. She admitted that she did not do so, but she did document the conversation with Dr. Bigol and his order in a nursing note and on the lab result form. She also agreed that she was required to document it on the patient's medication administration record. She testified that she would not have questioned Dr. Bigol's order to discontinue Trendel's Coumadin, because he was the doctor. She testified that she had concerns because Trendel's INR of 1.38 was low but it was not critical and that she had made the physician aware of it. She was questioned extensively about her knowledge of therapeutic INR levels and the implications to a person with atrial fibrillation of having an INR below the therapeutic level. She consistently answered that the therapeutic level depended on the patient and it was for a doctor and not her to assess the significance of a given patient's INR.

         ¶ 31 Dr. Bigol testified that he had been the medical director of Clare Oaks since 2008 and he was also Trendel's personal doctor when she was at Clare Oaks. Dr. Bigol testified that he did not give an order to Martinez on March 16, 2011, that Trendel's Coumadin should be discontinued when her INR was 1.38. He agreed that it would have been a violation of the standard of care for him to do so. Rather, his plan as of March 16 was to continue Trendel's Coumadin therapy. However, he acknowledged she never received Coumadin after March 16.

         ¶ 32 He testified that Clare Oaks had a system in place in 2011 that was designed to prevent what happened to Trendel but that it did not operate in the way it was designed and Trendel was harmed as a result. He explained that, when nurses take telephone orders from him, he expects them to write telephone orders. That is part of the system he relies on, as he will later review and sign the order to confirm it was his order. He also expects that, if a nurse receives an order from him for Coumadin that appears to the nurse to be inconsistent with the patient's long-term care plan, the nurse should question him about it. He expected the nurses at Clare Oaks to have sufficient training to know that an order discontinuing Coumadin on a patient with an INR below the therapeutic level was something that should be brought to his attention or to the attention of the director of nursing or other physicians at Clare Oaks.

         ¶ 33 He explained that Clare Oaks also had a policy in place that the staff should make use of a Coumadin flow sheet to keep all the pertinent information about a patient's Coumadin and INR levels in one place. He testified that Clare Oaks did not implement usage of a Coumadin flow- sheet. He agreed that it was likely that, if Clare Oaks had a Coumadin flow-sheet in place for Trendel, the error at issue likely would have been caught. He explained that Clare Oaks also had a 24-hour audit process, in which each nurse on the night shift was to review the orders and the medications every 24 hours, to make sure that no mistakes were being made. He expected that the audit process should have detected an error such as the one that occurred in Trendel's case.

         ¶ 34 He testified that, if Martinez had written an order on March 16 to discontinue Coumadin in the physician phone orders section of Trendel's chart, he would have seen that order on March 22, 2011, when he came to Clare Oaks and reviewed other orders. If he had seen an order from March 16 to discontinue Coumadin, he would not have signed such an order. Instead, the standard of care would have required him to order an INR done immediately and to implement medication to ensure that her INR was returned to a therapeutic level, as he would have realized then that Trendel's being off Coumadin for six days put her at great risk for stroke. He testified that, more likely than not, Trendel suffered the stroke on March 30 because she did not receive her Coumadin for 14 days.

         ¶ 35 He testified that he does not routinely look in a patient's chart at lab result forms or nurses' progress notes regarding a patient, even though they are part of the chart, but rather he looks at the telephone order sheets in the patient's chart. However, he knows that nurses write on the lab results "all the time." He acknowledged that the lab results and the nurse's progress notes were available in Trendel's chart for him to look at and, if he had gone into the chart after March 16 and looked at them, he would have seen that she was not getting Coumadin.

         ¶ 36 During Dr. Bigol's cross-examination, the attorney for Clare Oaks sought to question him with the two notes of the nurse practitioner who saw her on March 23 and March 25. On the March 23 note, the nurse practitioner wrote, "INR was subtherapeutic [and discontinued] on 3/16/11 [slash] Dr. Bigol." The March 25 note reflected that the patient was "off therapeutic Coumadin." The trial court sustained an objection to the use of these notes by the attorneys for the plaintiff and Dr. Bigol, reasoning that no expert witness had been disclosed to give testimony critical of the nurse practitioner for noticing in the chart that Trendel's Coumadin had been discontinued and not taking action.

         ¶ 37 Mark Lachs, M.D., the plaintiff's expert witness in geriatric medicine, testified that Dr. Bigol violated the standard of care in his capacity as Trendel's attending physician when he stopped monitoring her INR levels after March 16, as he should have recognized that up to that date he had been diligently monitoring it and had known that it had been "fluctuating throughout the course of her stay." He testified that it would have been a violation of the standard of care if Dr. Bigol had ordered Trendel's Coumadin to be discontinued on March 16 if he had been informed of an INR of 1.38. Instead the standard of care required him to escalate her dose to raise her INR level to the therapeutic level and to repeat her INR testing in one or two days.

         ¶ 38 Dr. Lachs was asked what the standard of care required of a doctor receiving information such as an INR and responding with an order. In his answer, he explained that the lab is typically read back and repeated, and then the physician gives the order on any change in the dosage of Coumadin and follow-up INR testing to the nurse. The nurse then reads the order back. He went on to answer that a lab sheet is not the proper place for a nurse to enter an order, but the attorney for Clare Oaks raised an objection, which was sustained. Dr. Lachs was then asked what his "expectation" would be as an attending physician ordering Coumadin to be discontinued, regarding where such an order would show up. An objection was made to the word "expectation," which was overruled. Dr. Lachs then answered that his expectation would be that he would give an order, the nurse would read it back, and the order would be transcribed into the physician order sheet or telephone order sheet. Dr. Lachs then testified that, if the nurse did not read the order back to him, the standard of care required Dr. Bigol to request the nurse to read it back.

         ¶ 39 Dr. Lachs also testified that Dr. Bigol, in his capacity as medical director of Clare Oaks, failed to comply with the governing regulations or the standard of care to implement resident care policies within the facility. He testified that, in his review of materials, Clare Oaks' policies and procedures were not appropriately implemented. Asked what his evidence was for this statement, he stated there were "so many examples of this." He then cited the requirement that telephone orders be read back so medication errors are not made, that Coumadin flow-sheets be used so the history of a patient's dosing and INR is centralized in one place, and that the director of nursing had testified that nurses were given wide latitude and discretion in the ways that they responded to implementing care. He then testified that he would have expected the medical director of Clare Oaks to be aware of these deficiencies, particularly because he was a practicing physician there. Dr. Lachs then testified at length to Trendel's course of medical treatment made necessary by the stroke and the effect of the stroke on her life prior to her death on March 15, 2015. He testified that but for the stroke on March 30, 2011, Trendel would not have died when she did or how she did.

         ¶ 40 On cross-examination by the attorney for Clare Oaks, Dr. Lachs agreed that the notation by Martinez to discontinue Coumadin on the March 16 lab results and her progress note from that day were part of Trendel's chart. He agreed that she was seen by a nurse practitioner on March 23 and March 25, and the notes from those two dates were also part of Trendel's chart that could have been seen by anyone who looked. He agreed that she was seen by a cardiologist on March 22. Dr. Lachs was asked what the cardiologist was addressing, at which point the trial court sustained an objection based on the previous ruling on the motion in limine involving Dr. Pop.

         ¶ 41 On cross-examination by the attorney for Dr. Bigol, Dr. Lachs agreed that, until Dr. Bigol signed a telephone order or physician's order and that order was in Trendel's chart, nobody at Clare Oaks was supposed to be stopping Trendel's Coumadin. He agreed that, if the staff at Clare Oaks was going to stop her Coumadin, someone should have called him and asked if they were supposed to be doing that because no order was seen in the chart. He also agreed that it would be reasonable for Dr. Bigol to expect that the nurses at Clare Oaks would have an understanding of the patient's condition, the medications the patient was receiving, and why the patient was receiving those medications. He was asked, based on his review of Martinez's deposition testimony, what he thought of her knowledge of Coumadin, and he described it as "aberrant." He answered in the affirmative when he was asked whether he would expect as an attending physician that any error in the discontinuation of Trendel's Coumadin caught by a chart audit would be brought to his attention and whether he would expect that a nurse caring for a patient with atrial fibrillation would understand what Coumadin is used for and what an INR value means. Finally, he was asked on cross-examination whether he knew whether Clare Oaks was making use of Coumadin flow-sheets at the present time, and an objection to this question was sustained.

         ¶ 42 Leo Kanev, M.D., a family medicine physician retained as an expert witness by Dr. Bigol, testified that Dr. Bigol complied with the standard of care, both as Trendel's attending physician and as the medical director of Clare Oaks. He testified that, if Dr. Bigol had in fact said to Martinez to discontinue Trendel's Coumadin, his expectation is that Martinez, even as a new nurse with minimal experience, should have recognized that this was an unusual order, asked him to confirm that this was in fact the order, and possibly even questioned the validity of the order. He testified that, if a physician gave an order over the telephone, the nurse should have written it on a telephone order slip and entered it into the patient's medication administration record. He explained that the purpose of this is that telephone order slips are ultimately given to the physician to sign, so that the physician can confirm that he or she did give the order and ensure that it is correct. He testified that Clare Oaks also had a procedure of audits that should have been completed every 24 hours to catch any inconsistencies between orders and medications administered to patients. He testified that an attending physician such as Dr. Bigol "should be able to rely on the systems in place."

         ¶ 43 On cross-examination, Dr. Kanev stated there were multiple systems that failed at Clare Oaks, one of which was that policies and procedures were not followed. Dr. Kanev agreed that Martinez's qualifications were inadequate to care for a patient like Trendel. He testified that another area was that Coumadin flow-sheets were not being used as directed by the existing policy and procedure.

         ¶ 44 The issue of Dr. Pop's testimony was readdressed in the context of an indication by Clare Oaks' attorney that he intended to call Dr. Pop personally as a witness. Dr. Pop's discovery deposition was not taken. The plaintiff filed a motion in limine to bar Clare Oaks from calling him, on the basis that Clare Oaks was seeking to elicit testimony from Dr. Pop that was contrary to its disclosures under Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2007), which stated that Dr. Pop's testimony would be that the care and treatment he rendered to Trendel was appropriate and that nothing he did or failed to do caused or contributed to causing her injuries. Clare Oaks' attorney indicated that he intended to ask Dr. Pop to confirm that he did not put Trendel on Coumadin. The trial court granted the plaintiffs' motion in limine to bar Dr. Pop's testimony.

         ¶ 45 In addition to Dr. Kanev, Dr. Bigol had disclosed a second expert witness, cardiologist Dan Fintel, M.D., who did not testify at the trial. Prior to trial, the plaintiffs had filed a motion in limine to bar Dr. Fintel's testimony on the basis that it was cumulative of the testimony by Dr. Kanev. Dr. Bigol's attorney ultimately agreed that most of the testimony was cumulative. The one aspect of Dr. Fintel's testimony that all parties agreed was not cumulative was an opinion by him that even if Trendel's Coumadin had been restarted on March 22, 2011, it would not have prevented Trendel's stroke. Dr. Bigol's attorney stated to the trial court that the reason this opinion was disclosed was the comment in Dr. Pop's letter of March 22, which the trial court had previously barred the attorney for Clare Oaks from cross-examining witnesses with. Because testimony was not introduced on that issue, the attorney for Dr. Bigol indicated he did not intend to call Dr. Fintel. However, the attorney for Clare Oaks then indicated that he intended to call Dr. Fintel, whose opinion Clare Oaks had adopted as its own, to testify only as to the noncumulative matter concerning Dr. Pop's letter. The trial court granted the plaintiffs' motion in limine to bar the testimony of Dr. Fintel, on the basis that Clare Oaks could not call Dr. Fintel solely to bring out the contents of Dr. Pop's letter that it had previously barred Clare Oaks' attorney from cross-examining the medical witnesses with.

         ¶ 46 After closing arguments and upon consideration of all the evidence and testimony, the jury found in favor of Dr. Bigol and Hart-Carlson and against the plaintiffs on the counts against them. The jury returned a verdict in favor of the plaintiffs against Clare Oaks, and it assessed damages in the amount of $4, 111, 477.66. Of that total, $250, 000 was allocated for the damages suffered by Trendel's children following her death, for the counts under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2016)). The remainder was for damages suffered by Trendel prior to her death. The trial court entered judgment on the verdict.

         ¶ 47 Clare Oaks filed a timely posttrial motion seeking a new trial on all issues, which was denied by the trial court.

         ¶ 48 C. Motion for Attorney Fees and Costs

         ¶ 49 After the trial, the plaintiffs filed a motion pursuant to section 3-602 of the Nursing Home Care Act (210 ILCS 45/3-602 (West 2016)), seeking to recover their attorney fees and costs from Clare Oaks. The plaintiffs argued in their motion that, as their contract with their attorney provided that they would pay a contingent attorney fee equal to one-third of the amount recovered from Clare Oaks, they were entitled to receive attorney fees from Clare Oaks in the amount of $1, 370, 492.55, which is one-third of the total verdict of $4, 111, 477.66. Their motion also sought to receive costs from Clare Oaks in the amount of $151, 694.40, which included expenses for testifying experts' fees, trial exhibits, trial technology and video editing, obtaining medical records, court costs, fees of court reporters and videographers for depositions, fees of court reporters for trial, production expenses for a day-in-the-life video, mediation costs, and expenses of travel for McFadden's deposition. Attached to the motion were affidavits from Michael Mertz and Tara Devine, both of whom averred that they were attorneys experienced in litigating cases under the Nursing Home Care Act, that contingent-fee contracts were the standard arrangement for the payment of attorney fees in such cases, and that a one-third contingency fee rate was reasonable. Also attached was an affidavit by Steven M. Levin, the senior partner of the law firm that represented the plaintiffs. Levin's affidavit set forth his experience in similar cases and the work involved by his law firm in this case. No detailed time entries were filed with the motion.

         ¶ 50 Clare Oaks filed a response to the plaintiffs' motion. It argued that the motion was inadequate to support the requested fees and costs, that the plaintiffs could not recover fees for damages allocated to the wrongful death claims, that the fee award should be reduced to reflect claims on which the plaintiffs were not successful, and that the plaintiffs could not recover costs beyond those allowed under section 5-108 of the Code of Civil Procedure (735 ILCS 5/5-108 (West 2016)). In reply, the plaintiffs submitted additional estimates of the hours their attorneys had spent working on their case. Based on their reconstruction of the time they had spent working on the case, the plaintiffs' attorneys estimated that they had spent 3043.55 hours working on the case.

         ¶ 51 The trial court conducted an evidentiary hearing on the plaintiffs' motion. At the hearing, the plaintiffs presented the testimony of Levin in support of their claim for fees, and Clare Oaks presented the testimony of an expert witness, attorney James Chapman, in opposition to the claim. Both parties were allowed to conduct cross-examination of the opposing party's witnesses and make their arguments on the issue of the reasonableness of the fees sought. At the conclusion of the hearing, the trial court found that a fee award equal to the amount of the contingency fee was appropriate. Thus, it awarded fees to the plaintiffs in the amount of $1, 370, 492.55, which was one-third of the total verdict of $4, 111, 477.66. It also awarded costs in the amount of $147, 471.55, which was slightly less than the amount sought by the plaintiffs. Clare Oaks filed a timely notice of appeal.

         ¶ 52 II. ANALYSIS

         ¶ 53 A. Motion for Continuance of Trial

         ¶ 54 Clare Oaks' first argument on appeal is that the trial court denied it a fair trial when the court denied its motion to continue the trial due to McFadden's unavailability. Clare Oaks points out that McFadden, its expert witness on nursing issues, would have testified that the nursing staff of Clare Oaks complied with the applicable standard of care with respect to Trendel, specifically that its staff acted appropriately in titrating, holding, administering, and discontinuing Trendel's Coumadin therapy according to Dr. Bigol's orders and that Martinez properly documented the order by Dr. Bigol to discontinue Coumadin in Trendel's chart. Clare Oaks contends that McFadden became ill days before the trial was set to begin and it moved to continue the trial on that basis. Clare Oaks argues that the trial court's denial of this motion forced it to try the case without an expert witness to defend the conduct of its nursing staff.

         ¶ 55 A litigant does not have an absolute right to a continuance, and the decision to grant or deny a motion for a continuance is vested in the sound discretion of the trial court. Andersonville South Condominium Ass'n v. Federal National Mortgage Co., 2017 IL App (1st) 161875, ¶ 28. A party seeking a continuance once the case has reached the trial stage must provide the court with an especially compelling reason for a continuance because of the inconvenience caused to the other parties, attorneys, witnesses, and the court. Id. ΒΆ 30. A reviewing court will not reverse a trial court's denial of a continuance" 'unless it has resulted in a palpable injustice or constitutes a ...


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