ANGELA L. McINTYRE, Independent Administrator of the Estate of DONALD R. McINTYRE, JR., Deceased, Plaintiff-Appellant and Cross Appellee,
RAJESH BALAGANI, DO.; ILLINOIS LUNG INSTITUTE, LTD., an Illinois Corporation, OSF HEALTHCARE SYSTEM, a not-for-prof corporation, Defendants-Appellees and Cross Appellants, and SACHDEV P. THOMAS, M.D., and ONCOLOGY-HEMATOLOGY ASSOCIATES OF CENTRAL ILLINOIS, PC. Defendants-Appellees Ryschell R. Bolton, D.O.; Peoria Pulmonary Associates, Ltd., an Illinois Corporation, Defendants.
from the Circuit Court of the 10th Judicial Circuit, Peoria
County, Illinois, Circuit No. 10-L-87 Honorable Scott A.
Shore, Judge, Presiding.
JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion Justices Carter and Lytton concurred in the judgment
1 The plaintiff, Angela L. McIntyre (Angela), as independent
administrator of the estate of her deceased husband, Donald
R. McIntyre (Donald), brought a medical malpractice action
against several physicians, their respective employers, and
the hospital where Donald was treated and died. Angela sought
damages allegedly resulting from the negligent treatment that
Donald received on September 7 and 8, 2009, while he was a
patient in the medical intensive care unit (MICU) at OSF St.
Francis Medical Center.
2 Angela brought the following claims: (1) a negligence claim
against Dr. Rajesh Balagani and his employers, Illinois Lung
Institute, Ltd. and Peoria Pulmonary Associates, Ltd.
(collectively, the Balagani defendants); (2) a claim against
OSF Healthcare System (OSF), alleging that OSF was
derivatively liable for Dr. Balagani's negligence because
Dr. Balagani was OSF's apparent agent; (3) a negligence
claim against Dr. Ryschell R. Bolton, a third-year medical
resident and her employer, OSF; (4) a claim against OSF for
institutional negligence relating to the conduct of two OSF
respiratory therapists who intubated Donald prior to his
death; and (5) a negligence claim against Dr. Sachdev P.
Thomas, the on-call hematologist who consulted with Drs.
Balagani and Bolton regarding Donald's treatment, and Dr.
Thomas's employers, Oncology-Hematology Associates of
Central Illinois, P.C., Peoria Cancer Center, P.C., Illinois
Cancer Care Center, P.C., and Peoria Cancer Care Center, P.C.
(collectively, the Thomas defendants).
3 The Thomas defendants filed a motion for summary judgment,
alleging that Dr. Thomas did not owe Donald a duty of care as
an on-call physician. The trial court granted the motion and
the matter proceeded to a jury trial with the remaining
defendants. The jury returned a verdict in favor of Angela
and against the Balagani defendants and awarded Angela
damages of $1.1 million for loss of income, goods, and
services and $500, 000 for loss of companionship and society.
However, the jury returned a verdict in favor of Dr. Bolton
and OSF as to institutional negligence. Angela and the
Balagani defendants filed posttrial motions, which the court
denied. These appeals followed.
5 Donald first presented to the emergency room (ER) at OSF on
September 6, 2009, after fainting at a CVS pharmacy. He
complained of a headache, facial pain, and neck stiffness.
His hemoglobin was tested at 11.1 g/dL, which is considered
mild anemia (the normal range is 13 to 16 g/dL). He was given
a complete workup, which revealed no cause of his condition.
He was given antibiotics for a presumed case of sinusitis and
6 The following day, Angela took Donald back to the hospital
because he looked yellow. He arrived at approximately 11 a.m.
complaining of low back pain, headache, fatigue, chills,
shortness of breath, and blood in his urine. He fainted about
an hour after arrival, and later, his heart stopped beating
for 12 to 16 seconds. A cardiac workup suggested that Donald
might have had a heart attack from an occluded artery or
inflammation of his heart or surrounding heart tissue lining.
His liver enzymes were very elevated, which suggested
possible hepatitis. Doctors detected bilirubin, which can be
caused either by fractured blood cells or by a blockage in
the liver or gallbladder. Donald's white blood cell count
was elevated and he showed signs of possible infection, such
as flu-like symptoms, a fever of 102.4 degrees Fahrenheit,
headache, muscle aches, and sinus symptoms. He was
tachycardic and sweating. His hemoglobin was found to be 7.0
g/dL, down from 11.1 g/dL the previous day, which is
considered anemic. His hematuria (blood in the urine) was
rated at "4 plus," which is the highest amount of
blood or hemoglobin one can have in one's urine.
7 Dr. Rose Haisler, the attending emergency department
physician that day, testified that, after she reviewed
Donald's blood tests results in the ER, she was aware
that Donald had "hemolytic anemia" (HA). HA is a
rare disorder that causes the patient's own immune system
to attack and eventually destroy healthy red blood cells. Red
blood cells can be described as "bags" of
hemoglobin, the substance responsible for transmitting oxygen
from the blood to the body's tissues during circulation.
When a patient has HA, antibodies that normally attack
viruses and other infectious agents bind to the patient's
own red blood cells. Each time blood passes through the
spleen, white blood cells tear the antibodies away from the
red blood cells, stripping off small pieces of the red blood
cells in the process. As a result, the red blood cells become
smaller and smaller until they die in the spleen. If
untreated, this continuous destruction of red blood cells
results in death due to insufficient oxygen in the body.
8 In addition to HA, Donald also had elevated levels of
methemoglobin. Methemoglobin decreases the amount of oxygen
that hemoglobin is able to pick up as the blood goes through
the lungs and also interferes with or inhibits the release of
oxygen from hemoglobin into the body's tissues. This
condition increased the likelihood that Donald could die from
HA. Treatment of HA requires the transfusion of healthy red
blood cells, which maintains the blood's oxygen carrying
capacity, coupled with the administration of steroids and
immunoglobulin by intravenous delivery (IVIG), which
suppresses the chemical signaling error that causes the
body's immune system to attack its own red blood cells.
9 Dr. Haisler admitted Donald to the MICU at OSF because she
suspected he had HA and he had "deteriorated so
quickly." Dr. Haisler described HA as "incredibly
rare." This was the first suspected case of HA she had
seen outside a textbook. When asked if it would be
appropriate to provide blood to assist the patient in
maintaining enough red blood cells to provide oxygen for the
body, Dr. Haisler responded, "no." She explained
that giving blood to treat HA, unlike giving blood to treat
blood loss occurring from an open wound, is "very
complex," and is not something she would do without
consulting a hematologist. She testified that HA is not
treated in an emergency department. Nevertheless, Dr. Haisler
ordered: (1) a "Coombs test" to be performed (the
only way to confirm that a patient is suffering from HA), (2)
Donald's blood to be crossmatched, and (3) four units of
un-crossmatched blood (O negative blood which can be given to
anyone regardless of their blood type) to be prepared by the
10 Dr. Bolton, an emergency medicine resident physician
working under the attending physician, Dr. Balagani, treated
Donald while he was in the MICU. According to Dr.
Bolton's entries into the medical record, Donald was
admitted to the MICU with a diagnosis of "autoimmune
[HA] with an uncertain etiology." Donald's blood was
tested again at 4:23 p.m. The test showed that Donald's
hemoglobin had decreased another gram to 6 g/dL. Dr. Bolton
testified that she was notified of this blood test result at
4:45 p.m. and that she ordered that blood be given to Donald
because a hemoglobin of less than 7 g/dL "requires
blood." Dr. Bolton stated that she ordered the
un-crossmatched, O-negative blood to be transfused because it
was "urgent" in order to maintain Donald's red
blood cell levels. Two of the four units of un-crossmatched,
O-negative blood ordered by Dr. Haisler were provided to
Donald at Dr. Bolton's direction at 5:16 p.m. and 5:34
p.m. Around this time, Dr. Bolton performed a lumbar puncture
to test for meningitis. Afterwards, she and Dr. Balagani
examined Donald and spent approximately an hour discussing
his symptoms and treatment plan. While awaiting the results
of the lumbar puncture, they transferred Donald to an
isolation room because they were concerned that he might have
an infection that might be contagious.
11 At 9:40 p.m., Donald was stable, meaning that his vital
signs were not changing. Dr. Bolton told Donald's family
members that Donald had HA and was very sick, and that
specialists would be coming to see him. Donald's
hemoglobin was tested again at 9:57 p.m. and it measured 6.3
g/dL. Dr. Bolton was notified of the new test results at
10:40 p.m. She later testified that she considered the 6.3
g/dL value to be "equivocal," given lab
variability, and surmised that Donald's hemoglobin level
could be the same as it was before. Dr. Bolton told Dr.
Balagani about the hemoglobin results, and he advised her
that they needed to get a specialist involved because, at
that point, they had enough lab test results to conclude that
Donald was suffering from HA.
12 At approximately 10:30 p.m., Dr. Bolton spoke with Dr.
Thomas, the on-call hematologist. When asked during the trial
to describe her understanding of her consultation with Dr.
Thomas, Dr. Bolton replied: "My understanding was that
we were to give steroids, to give IVIG, to try to get
cross-matched blood, but not to give any more O negative
blood, and also if I was concerned about infection,
which we were, that we should consult an infectious disease
doctor to get their opinion with regards to steroids."
(Emphasis added.) Dr. Bolton then testified, "based upon
that," she immediately contacted Dr. John Farrell, the
on-call infectious disease specialist. When asked what her
understanding of the treatment plan was, based upon her
consultation with Dr. Farrell, Dr. Bolton responded, "it
was my understanding that steroids could weaken his immune
system, and so we should proceed with caution, and therefore,
it was my understanding that we should not give steroids at
13 Dr. Bolton then immediately called Dr. Balagani,
communicated both of the specialists' treatment
recommendations, and told him how sick Donald was
"because [she] was still worried about him." Dr.
Bolton testified that, after weighing the benefits against
the risks, Dr. Balagani recommended that they give Donald
IVIG and steroids,  but he "agreed that we needed to try
to get cross-matched blood and not to give any more O
negative blood." Dr. Bolton noted in the medical record
that Dr. Balagani "did not want any more blood
transfused." In her testimony, Dr. Bolton explained that
Dr. Balagani meant no more un-crossmatched blood,
which Dr. Balagani confirmed in his own
testimony. She stated that Dr. Balagani gave her this
order sometime after her consultation with Dr. Thomas. Dr.
Bolton testified that she ordered everything that she and Dr.
Balagani agreed upon "based on Dr. Farrell and Dr.
14 However, during cross-examination, Dr. Bolton admitted
that there was nothing in the medical record, including her
own notations, suggesting that Dr. Thomas had told her not to
transfuse any more O negative blood; Dr. Bolton's
notation merely stated that Dr. Balagani "did
not want any more blood transfused." Moreover, Dr.
Bolton admitted that the medical record reflected that Dr.
Thomas recommended that steroids and IVIG be given to treat
Donald's condition and that there had been no
recommendation to delay these treatments.
15 OSF's blood bank was having difficulty crossmatching
Donald's blood, so they transferred the job to the Red
Cross blood bank. They said they "had never seen
anything like this when trying to crossmatch blood." Dr.
Bolton testified that, by midnight, the blood bank still did
not know when it would be available; they said it could be
hours, or it could be the next day. Dr. Bolton urged them to
get it done as soon as possible. She testified that, based on
her conversation with Dr. Thomas, she believed Donald needed
blood, but only crossmatched blood. Dr. Bolton ordered IVIG
at 10:53 p.m. However, the pharmacy did not fill that order
until 12:50 a.m. Dr. Bolton ordered steroids to be
administered at 12:49 a.m., but that order was not filled
until 1:18 a.m. and steroids were not given to Donald until
approximately 2:00 a.m. IVIG and steroids can take hours or
even days to take effect.
16 At approximately 2:35 a.m., Donald stopped breathing and
his heart rate dropped precipitously. A "code blue"
was called two minutes later. (Before he coded, Donald had
not been complaining of anything and his oxygen levels were
normal.) During the code, an IVIG treatment was given and
Donald's hemoglobin was tested at 5.4 g/dL. Donald was
intubated at 2:45 a.m. and again 3:05 a.m. However, efforts
to revive him were unsuccessful. Donald was given two
additional units of O negative blood at 3:08 a.m. and 3:14
a.m. Dr. Bolton later testified that Donald was "already
dead" at that time. Donald was pronounced dead at 3:40
a.m. An autopsy performed at the family's request
revealed "no anatomic cause of death" and no lung
infection or other infection. The death certificate signed by
Dr. Balagani identified the cause of death as cardiac arrest
as a result of shock due to HA.
17 Angela subsequently filed this medical malpractice action.
The Thomas defendants filed a motion for summary judgment,
arguing that Dr. Thomas owed no duty of care to Donald due to
his status as an on-call consulting physician. The trial
court granted the motion, ruling that, as a matter of
"public policy," the duration of the contact
between Drs. Thomas and Bolton was insufficient to establish
a doctor/patient relationship or a duty of care.
18 Before the matter proceeded to trial, Angela filed a
motion in limine to bar defense counsel from asking
questions that would suggest that Dr. Thomas was the sole
cause of Donald's death. In support of her motion, Angela
noted that no expert had opined that Dr. Thomas was the sole
cause of Donald's death and argued that it would be
highly inflammatory to imply as much to the jury. The trial
court granted Angela's motion "as to duty, breach,
and violation of the standard of care." The court
reasoned that allowing the defendants to suggest that Dr.
Thomas had breached the standard of care or was negligent in
any fashion would conflict with the court's prior ruling
that Dr. Thomas owed no duty of care to Donald. However, the
court ruled that the defendants were not barred from
inquiring or presenting evidence regarding "Dr.
Thomas' role in the treatment and advice given."
19 The Balagani defendants later sought to present evidence
suggesting that Dr. Thomas was the sole proximate cause of
Donald's death. Specifically, they sought to
cross-examine Dr. Charles Abrams, Angela's testifying
expert hematologist, about some of his prior opinions about
Dr. Thomas's conduct in treating Donald. In his Illinois
Supreme Court Rule 213 disclosures, Dr. Abrams opined that
Dr. Thomas had breached the standard of care by failing to
recommend the immediate resumption of blood transfusions. Dr.
Abrams further opined that: (1) "[a]n ICU physician does
not typically contact the on-call hematologist at 11:45 p.m.
unless the hematologist's advice is urgently
sought"; (2) Dr. Thomas "should have obtained a
complete picture of Mr. McIntyre's condition and
stability," which "is difficult to do over the
telephone"; (3) if Dr. Thomas had any uncertainty about
the situation, Dr. Thomas "should have come to the
hospital that night to personally evaluate [Donald]";
(4) Dr. Thomas "should have made sure (at the time of
Dr. Bolton's phone call) that steroids, IVIG, and blood
transfusion were already on board and being given to Mr.
McIntyre."; (5) Dr. Thomas failed to obtain a complete
evaluation of the serial hemoglobin values that were
available and failed to assure that Donald was
"expeditiously being given the appropriate medications
by the ICU team to treat autoimmune [HA],"
(i.e., "steroids and IVIG"); (6) Dr.
Thomas "appeared to have failed to inquire about the
status of *** McIntyre's blood transfusions and to have
advised and strongly advocated for additional blood to be
given immediately to Mr. McIntyre."; (7) Instead, Dr.
Thomas "decided to wait until the next morning to assess
Mr. McIntyre in person"; and (8) "[h]ad Dr. Thomas
created the appropriate sense of urgency at the time of the
11:45 p.m. phone call (by coming to the hospital himself or
even over the telephone) and advocated for the immediate
resumption of O-negative blood transfusions, [Donald] would
likely be alive today. [Dr. Thomas's] failure to do so
was beneath the standard of care."
20 Similarly, during his subsequent discovery deposition, Dr.
Abrams explicitly faulted Dr. Thomas for "not doing what
was necessary to keep [Donald] alive that night."
Specifically, Dr. Abrams testified that Dr. Thomas
"should have inquired further and determined what the
hemolysis process was from the lab values and ordered blood
[transfusions]." Dr. Abrams testified that "[w]hat
is relevant is that a medical team was calling a specialist
that treats this specific disease. The medical team might
know all the relevant information, they might not. It's
up to Dr. Thomas to solicit all that he needs to know."
When asked whether he "knew the answer to that
question," Dr. Abrams stated, "[e]ither he did and
made an egregious error, or the error was in not soliciting
21 Counsel for the Balagani defendants sought to question Dr.
Abrams about these opinions and about his opinion regarding
the proximate cause of Donald's death. Before questioning
Dr. Abrams on these matters, defense counsel asked the court
to clarify its prior in limine ruling regarding Dr.
Thomas and proximate causation issues. The court clarified
that the defendants were not prohibited from suggesting that
Dr. Thomas was the sole proximate cause of the injuries
suffered by Donald provided that there was "expert
testimony to say something of that nature" or evidence
of "reliance by somebody that was in the chain of
circumstance." The court explained that the prior order
on Angela's motion in limine did not preclude
the defendants from suggesting that Dr. Thomas was the sole
proximate cause of Donald's death. Instead, that ruling
addressed whether Dr. Thomas owed a legal duty to Donald, not
whether Dr. Thomas performed some act which was a proximate
cause of Donald's injuries. Accordingly, the court
concluded that the defendants were not barred from showing
that Dr. Thomas performed some "intervening or
superseding act" that, "just like any other
intervening circumstance, whether it was an ambulance crash
on the way to the hospital or any other number of
things," could be inferred from the evidence to be the
sole proximate cause of the injury. The court also stated
that testimony supporting such an inference was
"admissible for that purpose," and "would not
be barred by any prior ruling." Nor was there any reason
that such testimony should be "otherwise limited."
In sum, the trial court ruled that the defendants could delve
into Thomas's role in proximately causing Donald's
death if they could establish by competent evidence that
"others relied upon [Dr. Thomas's] guidance,"
and "the jury needs to decide whether that was the
cause, sole proximate cause, or not."
22 During cross-examination, Dr. Abrams testified that he had
initially opined that Dr. Thomas was at fault for not
instructing Dr. Bolton that Donald was to receive continuous
blood transfusions to stabilize him, but that his opinion
changed after he read Dr. Thomas's supplemental
deposition wherein Dr. Thomas retracted his earlier testimony
that he had ordered no O-negative blood to be transfused. In
response, Dr. Balagani's counsel stated, "[well]
we'll ask Dr. Thomas about that, I guess." On
redirect, Angela's counsel asked whether Dr. Thomas's
statement in his supplemental deposition that "I clearly
told them to give blood" was what changed Dr.
Abrams's mind. Dr. Abrams responded in the affirmative.
23 Based on Dr. Abrams's Rule 213 disclosures, the
Balagani defendants attempted to make an offer of proof that
Dr. Abrams, if called to the stand, would testify that Dr.
Thomas breached the standard of care and that such breach was
the sole proximate cause of Donald's death. The trial
court initially granted the oral offer of proof but then
reversed its ruling when Angela's counsel withdrew her
concurrence and defense counsel was unable to cite to any
"sole proximate cause" opinion in Dr. Abrams's
Rule 213 disclosures. Defense counsel later presented a new
offer of proof without any reference to Dr. Thomas as the
"sole" proximate cause. The trial court stood on
its prior ruling. Specifically, the court stated:
"the defense may certainly show Dr. Thomas' role and
the defense has indicated that they're showing reliance
upon Dr. Thomas' advice as a consult. But in order for
there to have been a violation of standard of care, there
would have to have been a duty of care and the law of this
case pursuant to previous rulings adopted by this Court is
that there was no doctor-patient relationship between Dr.
Thomas and [Donald] and, therefore, no duty. Whether the
advice was in error or not does not really become the issue.
The issue is the reasonable reliance on that advice by [the
defendants] and, therefore, the previous rulings of the Court
with regard to Dr. Thomas's testimony and liability are
again confirmed by this Court."
24 On several occasions during the trial, Dr. Bolton
attempted to testify as to what Dr. Thomas told her regarding
Donald's treatment. Each time, Angela's counsel
objected on hearsay grounds. The trial court sustained the
objections and ordered Dr. Bolton to testify only as to her
side of the conversation (i.e., what she said to Dr.
Thomas). Each time, the court instructed the jury to
disregard any testimony that Bolton gave regarding what Dr.
Thomas had told her. The court also allowed Dr. Bolton to
testify, over an objection from Angela's counsel, about
her "understanding" of the treatment plan based
upon her consultation with Dr. Thomas. Moreover, as noted
above, Dr. Bolton testified on at least one occasion that her
and Dr. Balagani's treatment of Donald was "based
on" Dr. Thomas's recommendations. However, Dr.
Bolton was not allowed to testify regarding what Dr. Thomas
had said to her.
25 Moreover, the trial court granted Angela's motion
in limine to bar the Balagani defendants from asking
Dr. Farrell about the duty of a consulting physician "in
a back door attempt to impugn" Dr. Thomas's conduct.
In granting Angela's motion, the court ruled that the
defendants would not be allowed to use this line of
questioning to "cast aspersions upon other
consultants," specifically Dr. Thomas. Defense counsel
never called Dr. Thomas to the stand to ask him what he had
told Dr. Bolton regarding Donald's care.
26 Every expert that testified at trial, including
Angela's experts, agreed that it was within the standard
of care for the treating ICU doctors to consult with a
hematologist to guide Donald's care. Beyond that,
however, several of the experts disagreed as to the specific
standard of care for treating the type of HA that Donald was
suffering from when he was admitted to the MIC
U.Specifically, the experts disagreed on whether the standard
of care required that Donald be given transfusions of
un-crossmatched (O-negative) blood to replace his lost red
27 Dr. Abrams opined that, while crossmatched blood should be
given when there is "plenty of time," severely
anemic patients with aggressive HA like Donald must be
transfused with un-crossmatched, O-negative blood. According
to Dr. Abrams, O-negative blood is acceptable for everyone
and will not be hemolyzed (destroyed) by a severely anemic
patient any faster than the patient's own red blood
cells. Moreover, because Donald had not experienced an
adverse reaction to the first transfusion with O-negative
blood at 5:30 p.m., his doctors should not have hesitated to
give him more O-negative blood later that evening. Dr. Abrams
also opined that the treatment for autoimmune HA also
involves the administration of IVIG and steroids. The blood
transfusions provide fresh red blood cells, which keeps the
patient alive while the IVIG and steroids work to quell the
immune response and cure the disease. Dr. Abrams opined that
the ICU doctors' failure to give Donald more transfusions
of O-negative blood, coupled perhaps with their failure to
administer steroids and IVIG in a timely manner, caused
28 Similarly, Dr. Timothy Albertson, Angela's liability
expert, opined that: (1) as the attending critical care
physician managing the MICU, Dr. Balagani was
"ultimately responsible" for Donald's care, and
he should have known how to treat autoimmune HA; and (2) Dr.
Balagani's failure to maintain Donald's hemoglobin
levels by giving repeated (un-crossmatched) blood
transfusions and his failure to give IVIG and steroids
earlier in the day deviated from the standard of care and was
a cause of Donald's death.
29 Two defense experts disagreed. Dr. Martin Tobin testified
that giving more blood to Donald would have further
accelerated the hemolysis, essentially "adding fuel to
the fire." Another defense expert, Dr. DeBoisblanc,
testified that he also would not have given Donald more
blood, for several reasons. First, he opined that the anemia
Donald was experiencing was not necessarily life threatening,
and that he saw patients all the time "walking
around" with hemoglobin levels in the threes (lower than
Donald's). Thus, in Dr. DeBoisblanc's opinion, there
was something else aside from his low hemoglobin count that
was driving Donald's illness. In addition, Dr.
DeBoisblanc noted that the elevated lactic acid in
Donald's blood meant that there was something wrong with
the whole body; multiple organs were unable to utilize or
process oxygen. Moreover, the hemoglobin inside red blood
cells is toxic, and when a red blood cell is destroyed, it
releases "free hemoglobin" into the bloodstream,
which Dr. DeBoisblanc compared to having "Clorox bleach
in your bloodstream." The body normally produces a
substance called haptoglobin to scavenge up the free
hemoglobin, but if the hemolysis is brink, the haptoglobin
cannot keep up and it is left to the kidneys to filter out
the toxins. When the kidneys become overwhelmed, the patient
ends up with blood in the urine, which is what happened to
Donald. Dr. DeBoisblanc opined that more transfusions of
O-negative blood would have worsened the problem because it
would produce more free hemoglobin. In Dr. DeBoisblanc's
opinion, the hemolysis that Donald was experiencing was too
rapid to allow the free hemoglobin to be cleared from his
body; it was a fatal case, no matter what anyone did for him.
30 The experts presented similar but somewhat differing
opinions as to whether and to what extent a critical care ICU
doctor should know how to treat a rare condition like the
autoimmune HA that Donald was experiencing when he was
admitted to the MICU. Dr. Balagani testified that a critical
care doctor is a generalist whose role is to stabilize the
patient until the relevant specialist takes over. Critical
care doctors "rely on their consultants." According
to Dr. Balagani, HA is not something usually treated in an
ICU and the extremely aggressive form of HA that Donald
experienced was very unusual. For HA that complicated, Dr.
Balagani wanted to "make sure our consultants were
31 Similarly, Dr. Tobin testified that: (1) it was
appropriate for Drs. Balagani and Bolton to wait for a
hematology consult until the time period when Dr. Thomas was
called; (2) HA is typically not an emergency requiring
emergent care and treatment, and patients with autoimmune HA
are typically not seen and treated in the ICU; (3) the
standard of care did not require Drs. Balagani and Bolton to
be experts in the treatment of HA in the critical care
setting; and (4) Dr. Balagani's approach to treating
Donald in the face of autoimmune HA was appropriate. Another
defense expert, Dr. Morey Blinder, testified that Donald had
a rare form of HA that intensive care doctors do not
typically treat, and that the MICU team should not be faulted
for a lack of experience in dealing with this rare condition.
Dr. Blinder further opined that: (1) "[t]here is very
little expertise outside the area of hematology with respect
to the diagnosis and treatment of [HA]"; (2)
"[t]here is even less experience, even among
hematologists, regarding the diagnosis, care, and treatment
of autoimmune [HA]"; and (3) there is greatly limited
experience on the part of hematologists in treating
autoimmune [HA] mixed type."
32 As noted above, Dr. Albertson, Angela's liability
expert, opined that Dr. Balagani was "ultimately
responsible" for Donald's care, and he should have
known how to treat autoimmune HA. However, Dr. Albertson also
acknowledged that it was "perfectly reasonable" for
Drs. Balagani and Bolton to rely upon the advice they
received from hematology. Moreover, Dr. Abrams testified that
the hematologist (Dr. Thomas) had superior knowledge about
hematological problems and that, under the circumstances of
this case, he would expect Drs. Balagani and Bolton to rely
upon direction from the hematologist.
33 During cross-examination, Dr. DeBoisblanc testified that,
even after having discussions with a consultant, it was the
critical care physician's decision whether or not the
patient needs more transfusions. He further testified that:
(1) IVIG and steroids were well-known therapies for HA which
were administered to reverse the process causing hemolysis;
(2) it is appropriate to treat HA patients with steroids even
if infection is suspected as a cause; and (3) Donald was
never diagnosed with an infection.
34 Angela presented the following evidence as to damages.
Angela testified that Donald worked at RLI Insurance (RLI)
for 23 years, starting as inventory clerk, and then working
his way up to becoming a vice president of RLI and running
its print shop. Angela worked with Donald at RLI for 17
years. She testified that Donald was a healthy and very
active man who worked long hours, took his work seriously,
and had a great relationship with clients. It was
Donald's dream to run his own printing business. When he
floated the idea to some of RLI's clients, they told him
that he was so good at what he did that they would take their
printing needs to Donald's upstart business. Donald left
RLI in 2007, built an annex to his house where he could run
the business, and took out a $40, 000 bank loan to purchase
the necessary printing equipment. By 2008, he was receiving a
lot of business from former RLI clients (including CEFCU and
others) and attracting new clients. These clients wanted
Donald to perform larger jobs, which required him to buy
larger printing equipment and expand his business. According
to Angela, Donald was busy up until the time of his
hospitalization in September 2009 and it appeared that
Donald's plan to grow the business was working. Donald
was very happy and content with how the business was
35 Tim Kruger, Donald's former coworker, also testified
on Angela's behalf. Kruger was a former chief account
comptroller and treasurer at RLI. Kruger worked alongside
Donald and frequently interacted with him in the print shop.
Kruger testified that Donald was an extremely hard worker who
spent long hours in the print shop and had a desire to
satisfy his customers. Kruger further testified as to
Donald's ingenuity and resourcefulness by describing how
Donald had developed and implemented a plan to utilize
RLI's print shop for external customers so that the
printing machinery, which was often idle when not being used
for printing at RLI, could be turned into a profit center,
thereby bringing in more revenue to RLI.
36 Curtis Wardelman, a Certified Public Accountant and a
close friend of Angela's and Donald's, also
testified. Wardelman met Donald through RLI. He did
consulting work for RLI and handled financial matters for
some of RLI's executives. Wardelman testified that he
observed Donald's work habits and abilities for many
years. He stated that Donald was an extremely hard worker who
arrived at work by 6:00 a.m. each workday. Donald started out
as a pressman, then became a production supervisor, then a
manager, and then the assistant vice president of RLI's
printing and mail systems. Wardelman testified that Donald
came up with the idea of using RLI's print shop to
generate additional profit from outside clients. Donald
successfully solicited clients for this venture (including
CEFCU and Par-a-Dice Casino), and turned RLI's printing
shop from a cost center to a profit center. Wardelman
testified that Donald had been "very successful" in
developing that business model.
37 Wardelman testified that Donald approached him in 2006 for
professional advice and guidance because Donald wanted to
build his own printing business. Donald approached Wardelman
because of their friendship and because Wardelman had
experience in planning and executing plans to put new
businesses together. Wardelman testified that, by the time he
left RLI in 2006, Donald had a plan to obtain space,
equipment, and supplies for the business. Donald bought his
first printing press and formally started his new business in
September 2007. At that time, Donald was doing side jobs to
augment his income in addition to the six months of income he
had obtained from RLI upon leaving. Wardelman opined that
Donald was developing his business "methodically"
and was trying to do things in stages, adding further
printing presses depending how the business was growing. By
2008, the business was growing and Donald wanted to grow it
even more. Gross sales began to jump. By 2009, Donald
appeared to be busier and busier. Between January and April
2009 (during the heart of the recession), Donald obtained a
$40, 000 loan to purchase two new, larger, multiple color
printing presses in order to meet the increasing demands of
his clients. Wardelman testified that Donald was
"extremely busy" thereafter and that it was
Wardelman's impression that Donald's business was
growing and would continue to grow. Donald was doing work for
CEFCU, Par-A-Dice, and the Peoria Civic Center. RLI was
getting out of the printing business at that time, and Donald
had maintained contacts with RLI's former clients and was
soliciting their business.
38 Wardelman stated that Donald's printing business had a
net loss of $24, 000 in 2007, but turned a profit of $11, 000
to $12, 000 in 2008 on gross sales of $117, 000. According to
Wardelman, from January 1, 2009, through the date of
Donald's death in September 2009, Donald's business
had gross sales of $65, 000 with a net income of
approximately $15, 000. When asked to explain the figures for
2009, Wardelman admitted that there was "some hesitation
about 2009" because Donald's software systems for
his printing business were password protected "so we
were never able to get into the software to see what was
there." When Angela's counsel tried to solicit
Wardelman's opinion as to "what type of projected
growth the business might have," the trial court
sustained defense counsel's objections based on
speculation, lack of foundation, and failure to disclose
under Rule 213. During cross-examination, Wardelman admitted
that he had never prepared a formal business plan for
Donald's business and was not aware of such a plan. He
also admitted that he could not say one way or the other
whether the business would have "taken off or
39 Wardelman further testified that, after Donald died in
September 2009, the business completely stopped because there
was no one to run it. All of the printing presses and other
equipment had to be liquidated, and Angela had to take a loss
while wrapping up the business.
40 Prior to trial, Angela disclosed an expert witness,
economist Dr. Edward Sattler, to provide opinion testimony on
the projected growth of Donald's printing business. Dr.
Sattler purportedly would have testified that Donald's
business would have steadily increased its profits and would
have yielded a profit of $125, 000 by 2013. OSF moved in
limine to bar Dr. Sattler's testimony as speculative
and without foundation. The trial court denied the motion,
ruling that OSF's objections were to the weight of Dr.
Sattler's proposed opinion, not its admissibility.
Nevertheless, Angela never called Dr. Sattler at trial.
41 During closing argument, Angela's counsel told the
jury that he would make suggestions based upon the evidence
with regard to Donald's background and experience, the
history of his being successful in providing for his family
and his income growth, his previous occupational history, and
evidence of his industriousness and occupational abilities.
Counsel noted that his argument was merely a suggestion and
that it was up to the jury to choose what it believed was
appropriate. At one point during closing, Angela's
counsel argued as follows:
"I'm going to estimate that by 2013 Donald was
making right around or a little bit more than he was when he
left RLI. I think that's conservative, but you may
disagree and that's up to you. So I'm going to pick-I
believe the last salary was $117, 000. I'm going to
suggest that if you estimate that he would have made income
of $125, 0000 from his business and that projects out through
2028 where he would have been age 67, that would be a total
of $2 million in gross income. Now, the law says that
you're going to have to adjust this for what they call
present cash value *** So I'm estimating that over that
period of time, I think being conservative to age 67 it would
be $1, 250, 000 today."
42 During the jury instruction conference, the trial court
approved the jury instruction tendered by Angela, which was a
very slightly modified version of Illinois Pattern Jury
Instruction, Civil, No. 31.04 (2007) (hereinafter IPI Civil
(2007) No. 31.04), the jury instruction governing the
determination of damages for wrongful death that are
recoverable by a widow or next of kin. IPI Civil (2007) No.
31.04 reads, as follows:
"If you decide for the plaintiff on the question of
liability, you must then fix the amount of money which will
reasonably and fairly compensate the [lineal next of kin,
e.g., widow] of the decedent for the pecuniary loss proved by
the evidence to have resulted to the [lineal next of kin] of
the decedent. "Pecuniary loss" may include loss of