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McIntyre v. Balagani

Court of Appeals of Illinois, Third District

August 27, 2019

ANGELA L. McINTYRE, Independent Administrator of the Estate of DONALD R. McINTYRE, JR., Deceased, Plaintiff-Appellant and Cross Appellee,
v.
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.

          Appeal 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 and opinion.

          OPINION

          HOLDRIDGE JUSTICE

         ¶ 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.

         ¶ 4 FACTS

         ¶ 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 released.

         ¶ 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 blood bank.

         ¶ 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 this point."

         ¶ 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, [1] 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.[2] 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. Thomas' recommendations."

         ¶ 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.[3] 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 the information."

         ¶ 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 blood cells.

         ¶ 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 Donald's death.

         ¶ 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 there."

         ¶ 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 progressing.

         ¶ 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 "failed."

         ¶ 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 ...

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