Grauer v. Clare Oaks ( 2019 )

2019 IL App (1st) 180835
No. 1-18-0835
Opinion filed August 14, 2019
THIRD DIVISION
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
SUSAN R. GRAUER and THOMAS M. TRENDEL, as )
Independent Coexecutors of the Estate of Dolores Trendel, )
Deceased, )
)
Plaintiffs-Appellees, )
)
v. ) Appeal from the
) Circuit Court of
CLARE OAKS, an Illinois Not-For-Profit Corporation ) Cook County
d/b/a Assisi at Clare Oaks and/or Assisi Healthcare Center )
at Clare Oaks; CRSA/LCS MANAGEMENT, LLC, an ) No. 13 L 2472
Iowa Limited Liability Company; CRSA/LCS )
EMPLOYMENT SERVICES, LLC, an Iowa Limited ) The Honorable
Liability Company; PERCIVAL BIGOL, M.D.; ) Thomas V. Lyons, II,
PERCIVAL A. BIGOL, M.D., LTD.; and MICHELLE ) Judge Presiding.
HART-CARLSON, )
)
Defendants )
)
(CLARE OAKS, )
)
Defendant-Appellant). )
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 The defendant-appellant, Clare Oaks, an Illinois not-for-profit corporation doing business
No. 1-18-0835
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
1
The plaintiffs put on no evidence concerning defendants CRSA/LCS Management, LLC, and
CRSA/LCS Employment Services, LLC. These defendants remained in the case through the close of
evidence, at which point the trial court granted directed verdicts in their favor without objection.
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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
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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
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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
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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
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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.
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¶ 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
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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
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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
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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.
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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
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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
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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
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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-
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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
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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 “expecta-
tion,” 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
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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.
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¶ 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 physi-
cian 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
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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.
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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
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¶ 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
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(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
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No. 1-18-0835
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. ¶ 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 manifest abuse of discretion.’ ” K&K Iron Works, Inc. v. Marc Realty, LLC, 2014
IL App (1st) 133688, ¶ 22 (quoting Wine v. Bauerfreund, 155 Ill. App. 3d 19, 22 (1987)).
¶ 56 Section 2-1007 of the Code of Civil Procedure allows for the granting of continuances in
the discretion of the trial court upon a showing of good cause. 735 ILCS 5/2-1007 (West 2016).
That section further provides that “[t]he circumstances, terms and conditions under which
continuances may be granted, the time and manner in which application therefor shall be made,
and the effect thereof, shall be according to rules.” Id. Illinois Supreme Court Rule 231(a) (eff.
Jan. 1, 1970), requires that, if a party “applies for a continuance of a cause on account of the
absence of material evidence, the motion shall be supported by the affidavit of the party so
applying or his authorized agent.” That rule further provides that the affidavit shall show
“(1) that due diligence has been used to obtain the evidence, or the want of time to obtain it;
(2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the
testimony of a witness his place of residence, or if his place of residence is not known, that
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due diligence has been used to ascertain it; and (4) that if further time is given the evidence
can be procured.” Id.
¶ 57 In this case, Clare Oaks sought a continuance of the trial on account of the absence of
material evidence, that being McFadden’s testimony. In doing so, however, Clare Oaks did not
support its motion with an affidavit as required by Rule 231(a). This court has held that a party’s
failure to provide an affidavit in support of a motion for continuance constitutes a sufficient basis
upon which a trial court may deny such a motion. Farrar v. Jacobazzi, 245 Ill. App. 3d 26, 30
(1993). Thus, on this basis alone, the trial court did not abuse its discretion in denying Clare
Oaks’ motion.
¶ 58 However, even overlooking the absence of an affidavit, we would find no abuse of
discretion in the trial court’s denial of Clare Oaks’ motion. As discussed in the background
section above, the attorneys for Clare Oaks were aware well in advance of trial that McFadden
may not be available to testify live, due to the fact that she was scheduled to undergo knee
replacement surgery 10 days after jury selection was set to begin. Therefore, the attorneys
traveled to New York to take her evidence deposition 11 days before the trial was scheduled to
begin. When she did not proceed to sit for her evidence deposition because she felt lightheaded,
the plaintiffs’ attorney offered to stay in New York overnight and take her deposition the
following day, but Clare Oaks’ attorney apparently informed her that doing so would not be
fruitful. After being informed 10 days before trial that McFadden’s evidence deposition had not
proceeded, 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 her trial testimony. Further, the
trial court informed the attorneys that it would be feasible for McFadden to testify remotely at
trial through a video conferencing system if she was unable to travel to Illinois. As another
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alternative, it would seem equally likely that she could have provided an evidence deposition by
remote electronic means, even if it had to be taken after the trial began. See Ill. S. Ct. R. 206(h)
(eff. Feb. 16, 2011). Clare Oaks made no effort to demonstrate that none of these were viable
options for obtaining McFadden’s trial testimony. Considering all of this, we cannot say that
Clare Oaks acted with sufficient diligence to obtain McFadden’s testimony at trial. Clare Oaks
suffered no palpable injustice from the denial of the motion for continuance, and the trial court
did not abuse its discretion.
¶ 59 B. Testimony of Pignatiello
¶ 60 Clare Oaks’ second argument on appeal is that the trial court abused its discretion by
permitting Pignatiello, the plaintiffs’ expert witness on issues pertaining to nursing and nursing
home administration, to exceed the bounds of permissible expert testimony in several respects.
First, it contends that the trial court permitted her to express opinions that, as a nurse, she lacked
the foundational expertise to express. Second, it contends that she improperly repeated portions
of McFadden’s discovery deposition testimony and thus testified to hearsay. We address these
arguments in turn. As they concern the admissibility of evidence, which is a matter for the sound
discretion of the trial court, we will not reverse the decisions of the trial court unless that
discretion has been clearly abused. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92
(1995).
¶ 61 1. Testimony Outside Her Expertise as a Nurse
¶ 62 In its brief, Clare Oaks identifies six instances in which it contends that the trial court
permitted Pignatiello to express opinions outside her area of expertise as a nurse. In the first,
Pignatiello was asked what role a nurse had in determining the appropriate dose of Coumadin for
a patient. She ultimately answered that the dose was determined by the physician after a nurse
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obtains the patient’s INR and reports it to the physician. She began her answer, however, by
explaining that Coumadin was a drug given to people with atrial fibrillation and it increases the
time it takes for blood to clot. The attorney for Clare Oaks objected that this testimony was
beyond her expertise, as she was not a physician. The trial court overruled this objection.
¶ 63 Clare Oaks argues that this testimony, as well as the following four instances discussed
below, “violated foundational prerequisites,” citing Sullivan v. Edward Hospital, 209 Ill. 2d 100,
114-16 (2004), and the appellate court’s opinion in Gill v. Foster, 232 Ill. App. 3d 768, 779-81
(1992), aff’d on other grounds, 157 Ill. 2d 304 (1993). These cases stand for the proposition that,
for an expert witness to testify on the standard of care in a medical negligence case, the
foundational requirements that must be satisfied are “that the health-care expert witness must be
a licensed member of the school of medicine about which the expert proposes to testify; and that
the expert must be familiar with the methods, procedures, and treatments ordinarily observed by
other health-care providers in either the defendant’s community or a similar community.”
Sullivan, 209 Ill. 2d at 114-15; see also Gill, 232 Ill. App. 3d at 781. In Sullivan, the supreme
court held that a physician specializing in internal medicine was not competent to testify
regarding the standard of care for the nursing profession and the subject nurse’s deviation
therefrom. Sullivan, 209 Ill. 2d at 119. In Gill, the appellate court held that a general surgeon was
not qualified to testify to the standard of care applicable to radiologists. Gill, 232 Ill. App. 3d at
785. However, the supreme court, applying the same foundational requirements set forth above,
held that the plaintiff’s expert surgeon, as a physician licensed to practice medicine in all its
branches who had also demonstrated sufficient familiarity with the pertinent methods and
procedures, was qualified to testify to the standard of care of a radiologist. Gill v. Foster, 157 Ill.
2d 304, 317 (1993).
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¶ 64 Clare Oaks does not dispute that Pignatiello satisfies these prerequisites, in that she was
licensed in the same school of medicine about which she proposed to offer testimony against
Clare Oaks, that being nursing and nursing home administration, and she was familiar with the
nursing methods, procedures, or treatments pertinent to this case. Further, we find that Sullivan
and Gill are inapposite to the question of whether Pignatiello’s testimony regarding the purpose
of the drug Coumadin and its effect on patients had sufficient foundation. The issue in Sullivan
and Gill involved the scope of testimony by physicians on the standard of care of nurses or
physicians in other specialties, and neither case involved the extent to which a nurse may testify
about matters touching upon medical issues. The significance of Sullivan to this question,
however, is its recognition that expert testimony on the standard of care applicable to nurses
appropriately comes from a witness licensed in the profession of nursing. Sullivan, 209 Ill. 2d at
123. Such testimony will necessarily touch upon medical matters to some extent.
¶ 65 Here, we find no abuse of discretion by the trial court in allowing Pignatiello to testify to
the purpose of Coumadin and generally how it worked to reduce the risk of strokes in patients
with atrial fibrillation. There is no bright-line rule that prohibits testimony concerning medical
matters by health-care witnesses who are not licensed physicians. See Valiulis v. Scheffels, 191
Ill. App. 3d 775, 786 (1989). Rather, a proper foundation for expert testimony exists when it is
shown that the expert has specialized knowledge or experience in the area about which the expert
expresses his or her opinion. Id. at 785; see also Ill. R. Evid. 702 (eff. Jan. 1, 2011). In this case,
Pignatiello explained during her testimony that, during nursing school, nurses learn what atrial
fibrillation is and how that condition is managed with a physician as a team. She testified that
nurses also take a pharmacology course, in which they learn about Coumadin and its relationship
to atrial fibrillation. She testified that it is important that nurses understand the significance of the
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No. 1-18-0835
fact that a given patient is on Coumadin and has a particular INR, as this is information that a
nurse needs to know to report to a physician because it may affect how the physician treats the
patient. Furthermore, all of the witnesses in this case were in agreement that nurses need to know
about atrial fibrillation, its treatment with Coumadin, and the significance of a particular INR.
Thus, we find that a sufficient foundation existed for this testimony by Pignatiello.
¶ 66 The second instance in which Clare Oaks contends Pignatiello was allowed to testify
beyond her expertise as a nurse occurred when she was asked, referencing Trendel’s INR lab
report from March 16, 2011, to explain to the jury how lab reports are read and what information
is included within such reports. In doing so, she pointed out that the lab report included the
“reference range” for an INR as being 2.0 to 3.0, stating, “This is where we want it to be.” The
attorney for Clare Oaks objected that the testimony about “where we want it to be” was beyond
her qualifications as a nurse. The trial court overruled the objection, and we find no abuse of
discretion in this ruling. A sufficient foundation was established at trial for Pignatiello, as a
nurse, to explain to the jury what a reference range was on a lab report and specifically the
reference range for a patient’s INR. The fact that this is information that a nurse must understand
was repeatedly established at trial.
¶ 67 In the third instance cited by Clare Oaks, Pignatiello was asked whether a low INR
presented a risk to the patient. She answered that, if the INR was too low in a patient with atrial
fibrillation, it could possibly increase the risk of stroke. At that point, the attorney for Clare Oaks
objected. The trial court sustained the objection and instructed the jury to disregard the answer.
However, in a later question, Pignatiello was asked whether the fact that Trendel missed her dose
of Coumadin on February 27, 2011, posed a risk of harm to her. She answered that not getting
the Coumadin ordered by her physician increased her risk of stroke. The attorney for Clare Oaks
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objected that she was not a physician, and the trial court overruled the objection. For the reasons
discussed above, we find that a sufficient foundation was established for Pignatiello to express
this testimony and that there was no abuse of discretion in allowing it.
¶ 68 In the fourth instance, Pignatiello was asked if Coumadin was the kind of drug that could be
given in the same dose for weeks on end. The trial court overruled an objection to the question
on the grounds that she was not a physician. She answered that, in a patient like Trendel, her INR
had been “jumping up and down,” so she was having frequent INR tests because there was a
need for frequent adjusting of her Coumadin dosage to keep her within the therapeutic range.
Again, for the same reasons discussed above, we find no abuse of discretion in allowing
Pignatiello to express this testimony.
¶ 69 In the fifth instance, Clare Oaks states that Pignatiello was allowed to state her expectation
of what a physician would order if the physician learned that a patient’s INR was 1.38. However,
no such testimony appears on the page of the record cited by Clare Oaks in its brief. The
plaintiffs point out this fact in their brief, but Clare Oaks’ reply brief does not clarify the citation.
As Clare Oaks has failed to cite where in the record on appeal the objectionable testimony may
be found, any argument on this point is forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).
¶ 70 The sixth instance in which Clare Oaks argues that Pignatiello was permitted to testify
beyond her expertise involves her reading a provision of the Illinois Administrative Code
concerning resident care policies. Clare Oaks contends that the trial court permitted Pignatiello to
testify as a legal expert by advising the jury of the applicable law. Clare Oaks cites eight pages of
the trial transcript for this proposition, but it appears that the only objection occurred when she
was asked, “And what is this law?” At that point, the attorney for Clare Oaks asked for a
standing objection that “it” (apparently referring to the Illinois Administrative Code provision at
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issue) is not a law, but rather it was a regulation. There was no objection to allowing Pignatiello
to read the text of regulation at issue. An objection to evidence based upon a specific ground is a
waiver of objection on all grounds not specified. Russo v. Corey Steel Co., 2018 IL App (1st)
180467, ¶ 40. Thus, by failing to object on the grounds that Pignatiello should not be allowed to
read the regulation at issue, Clare Oaks has waived this objection to her testimony.
¶ 71 In the context of its argument that Pignatiello was allowed to testify beyond her expertise
concerning regulations applicable to nursing homes, Clare Oaks also argues that the trial court
improperly curtailed its examination of Pignatiello concerning “Congress’ true intent” in
promulgating the OBRA regulations, which, it asserts, was “determining whether a facility meets
the requirements for Medicare/Medicaid participation.” During her testimony, Pignatiello
testified that the OBRA regulations existed to “standardize the expectations that exist for all
nursing facilities in the country” and their purpose was “to prevent harm” and “ensure that we
deliver the best care possible.” During cross-examination, when Pignatiello was asked whether
the OBRA regulations had any other purpose beyond preventing harm to patients, the plaintiffs’
attorney objected. A sidebar was taken, after which the trial court cautioned Pignatiello not to
mention Medicare or Medicaid specifically when answering the question. We find no abuse of
discretion in the trial court’s actions, as any evidence or suggestion that Medicare, Medicaid, or
any other collateral source may have existed and paid Trendel’s medical bills would be more
prejudicial than probative. See Lang v. Lake Shore Exhibits, Inc., 305 Ill. App. 3d 283, 288-90
(1999).
¶ 72 2. Testimony Concerning McFadden’s Deposition
¶ 73 Clare Oaks next argues that the trial court erred in permitting Pignatiello to testify regarding
the opinions of McFadden, their nursing expert who did not testify at trial. It contends that, by
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doing so, the trial court allowed Pignatiello to testify to hearsay. It further contends that
Pignatiello’s testimony amounted to her improperly “parroting” the corroborating opinions of a
nontestifying witness. See Kim v. Nazarian, 216 Ill. App. 3d 818, 827 (1991).
¶ 74 At trial, the line of questioning at issue began when the plaintiffs’ attorney asked
Pignatiello what materials and deposition transcripts she had read or reviewed in formulating her
opinions in the case. Among the depositions she listed was McFadden’s. Over a standing of
objection, Pignatiello was asked then asked what, if anything, she had discovered after reading
McFadden’s deposition. She answered that she had discovered that McFadden had identified
certain areas in which Clare Oaks did not meet the standard of care, specifically that McFadden
had agreed that Martinez should have written a physician order after speaking to Dr. Bigol on
March 16, 2011, and that the director of nursing had failed in her responsibility to ensure that
policies and procedures were followed. Clare Oaks argues this testimony by Pignatiello is
beyond the scope of testimony permissible under the principles of Wilson v. Clark, 84 Ill. 2d 186
(1981).
¶ 75 In Wilson, the supreme court adopted Federal Rule of Evidence 703, which provided that an
expert may give opinion testimony at trial that relies upon facts or data not admitted in evidence,
as long as the underlying information is of the type reasonably relied upon by experts in the
particular field. Id. at 192-94; see also Ill. R. Evid. 703 (eff. Jan. 1, 2011). However, an expert
must be allowed to disclose to the jury the facts and data forming the basis of the expert’s
opinion, because an expert’s opinion is only as valid as the reasons that underlie it. Schultz v.
Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 298-99 (2002). In doing so,
“it is well established that an expert may testify about the findings and conclusions of a
nontestifying expert that he used in forming his opinions.” People v. Williams, 238 Ill. 2d 125,
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143 (2010) (citing People v. Lovejoy, 235 Ill. 2d 97, 143 (2009)); see also People v. Pasch, 152
Ill. 2d 133, 176 (1992). Prohibitions on the admission of hearsay are not violated when an expert
discloses facts and data not admitted into evidence, including the findings or conclusions of
nontestifying experts, for the purpose of explaining the basis of an opinion. Williams, 238 Ill. 2d
at 143 (citing Lovejoy, 235 Ill. 2d at 142). This is because the facts and data are not disclosed for
the truth of the matter asserted, but for the limited purpose of explaining the basis for the expert’s
opinion. Id. (citing Lovejoy, 235 Ill. 2d at 143).
¶ 76 We find that the challenged testimony of Pignatiello is permissible under these principles
and there was no abuse of discretion by the trial court in allowing it. Pignatiello testified that
McFadden’s deposition testimony was part of what she reviewed in formulating her opinions in
the case. She was thus permitted to disclose to the jury what findings or conclusions by
McFadden she used in forming her opinions, which is essentially what she did. There is no rule
that prohibits one party’s expert witness from relying, in the formation of his or her opinions,
upon findings or conclusions reached by an opposing party’s expert witness. See Poelker v.
Warrensburg-Latham Community Unit School District No. 11, 251 Ill. App. 3d 270, 294-95
(1993).
¶ 77 Further, no hearsay violation occurred here. The topic of McFadden’s deposition testimony
was not dwelled upon at any length during the direct examination of Pignatiello, so as to
essentially turn Pignatiello’s testimony into a conduit for the introduction of otherwise
inadmissible hearsay. Rather, it was succinctly discussed as being information in the materials
that formed the basis of Pignatiello’s opinion. To the extent that Clare Oaks was concerned that
the jury would misuse this information, it would have been entitled at that time to have the jury
instructed that this statement by McFadden was being allowed for the limited purpose of
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enabling Pignatiello to explain what she relied upon in forming her opinions and was not to be
considered by them as evidence. See Illinois Pattern Jury Instructions, Civil, No. 2.04 (approved
December 8, 2011). It does not appear that Clare Oaks sought to have the trial court give the jury
such an instruction.
¶ 78 We find this situation to be distinguishable from Kim, the case relied upon by Clare Oaks.
In Kim, testimony was elicited from two radiologists testifying as expert witnesses for the
defendants that they had shown the X-rays at issue in the case to colleagues in their radiology
departments, and their colleagues had agreed with them in their interpretation of the X-rays. Kim,
216 Ill. App. 3d at 822-25. The court held that such testimony was improper, as “neither Wilson
nor Rule 703 allows an expert’s testimony to simply parrot the corroborative opinions solicited
from nontestifying colleagues.” Id. at 827. The court found that the fact that a colleague of the
expert had agreed with the expert’s opinion “is of dubious value in explaining the basis of the
opinion.” Id. Further, the opposing party, who is unable to cross-examine the corroborative
opinion of the expert’s colleague, would be prejudiced by the admission of such testimony. Id. at
827-28.
¶ 79 In this case, unlike in Kim, Pignatiello was not testifying that she had discussed her
opinions with colleagues and that those colleagues had agreed with her. Rather, her statement
concerned testimony given by McFadden under oath in a deposition, which Pignatiello testified
she had reviewed in formulating her opinions in the case. Further, the situation present in this
case is not the equivalent of the situation in Kim, where the plaintiffs had no ability to cross-
examine the experts’ nontestifying colleagues. Here, McFadden was Clare Oaks’ own expert
witness. We do not believe that Clare Oaks was completely denied the ability to “cross-examine”
McFadden on these opinions if it had chosen to do so, as we discussed in the preceding section
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of this decision. Furthermore, Clare Oaks had the opportunity to cross-examine Pignatiello with
other testimony by McFadden in her deposition to challenge her reliance upon certain statements
by McFadden.
¶ 80 Apart from the testimony on direct examination discussed above, the only other mention of
McFadden’s testimony by Pignatiello occurred on redirect examination. During Pignatiello’s
cross-examination by the attorney for Clare Oaks, she had been questioned about the fact that
there were places in Trendel’s chart where it could have been seen prior to her stroke that she
was not on Coumadin after March 16, including on the lab report, the nurse’s note, and the two
notes by a nurse practitioner. Then, on redirect examination, Pignatiello was asked by the
plaintiffs’ attorney whether she recalled what McFadden’s opinion had been with respect to
whether documenting a conversation in a nurse’s note or lab result was sufficient to comply with
the standard of care. The attorney for Clare Oaks objected that this question was beyond the
scope of direct and cross-examination, but the trial court overruled that objection. Pignatiello
then testified that McFadden had been of the opinion that it was not sufficient to write the
conversation concerning the discontinuation of Coumadin on a lab slip or a nurse’s note but,
rather, it must be in a physician’s order. We find no abuse of discretion by the trial court in
allowing this testimony.
¶ 81 C. Testimony of Dr. Lachs
¶ 82 Clare Oaks’ next argument on appeal is that the trial court denied it a fair trial by permitting
Dr. Lachs, a physician specializing in geriatric medicine, to present testimony on the standard of
care applicable to the nurses at Clare Oaks and their deviation from that standard. As discussed
above, one of the foundational requirements necessary for an expert witness to give testimony on
the standard of care in a medical negligence case is that the expert be a licensed member of the
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school of medicine about which he proposes to testify. Sullivan, 209 Ill. 2d at 114. Clare Oaks
contends that Dr. Lachs, who does not have a license in nursing, was not qualified to express a
criticism of the nursing staff at Clare Oaks.
¶ 83 In the first portion of Dr. Lachs’s testimony cited by Clare Oaks, he was initially asked
what the standard of care required of a doctor receiving information such as an INR from a nurse
and responding with an order. In his answer, Dr. Lachs explained that the lab result is typically
read back and repeated, the physician gives the order on any change in the dosage of Coumadin
and follow-up INR testing to the nurse, and the nurse reads that order back. He then went on in
his answer to state that a lab sheet is not the proper place for a nurse to enter an order, at which
point the attorney for Clare Oaks made an objection that was sustained. The next question to Dr.
Lachs then was 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.
¶ 84 We do not find this testimony by Dr. Lachs amounts to his expressing an opinion on the
nursing standard of care applicable to the staff of Clare Oaks. Dr. Lachs was the physician
disclosed to provide expert testimony on the standard of care applicable to Dr. Bigol, both as
Trendel’s attending physician and as medical director of Clare Oaks, his deviation from the
standard of care, and the fact that the deviation was a proximate cause of injuries to Trendel. One
of the issues in the case against Dr. Bigol was whether he was required under the standard of
care to create some sort of reminder to himself to check Trendel’s INR several days after March
16, independent of anything that the nursing home staff did to remind him. Dr. Lachs testified
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that the standard of care required this of Dr. Bigol. By contrast, Dr. Bigol and Dr. Kanev testified
that what would ordinarily constitute this reminder would be the physician’s signing of a
physician’s telephone order slip on his next visit to the nursing home and Dr. Bigol was not
required by the standard of care to create an additional reminder on his own. Therefore, this
testimony by Dr. Lachs, concerning the fact that his expectation as an attending physician would
ordinarily be that the order would be transcribed in a physician order sheet or telephone order
sheet, was relevant and material to explain his subsequent testimony on this point concerning Dr.
Bigol’s deviation from the standard of care. It was not testimony pertaining to the nursing
standard of care.
¶ 85 Clare Oaks next criticizes a portion of Dr. Lachs’s testimony that concerned his opinion
that Dr. Bigol had deviated from the standard of care in his capacity as the medical director for
Clare Oaks. In that line of questioning, Dr. Lachs had first explained that one of the major roles
of the medical director of a nursing home was to implement resident care policies. Over a
standing objection, the following exchange then occurred:
“Q. *** In your review of the materials, were the Clare Oaks policies and
procedures appropriately implemented?
A. No.
Q. And what is your evidence for that?
A. I mean, there was so many examples of this. One policy and procedure
we’ve discussed, it is also statute, involving the careful administration and safe
administration of medications, telephone orders being read back so that medication errors
are not made.
Residents have the right to be free from significant medication errors. I think we
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could all agree that very significant medication errors were made. Those errors, by the
way, should have been reported to the medical director and the director of nursing. They
were not.
There is a policy and procedure regarding Coumadin flow sheets. Very common and
important to make sure that this kind of thing doesn’t happen, in which the daily doses of
Coumadin and the associated INRs are available in one place so you can see the history
of dosing, so you can respond cohesively and intelligently.
There was testimony from nurses who had never administered Coumadin before or
had experience effectively interacting with a physician over INRs and Coumadin. There
was testimony from the director of nursing that gave nurses wide latitude and discretion
in the ways that they responded to implementing care. It was very curious.
Q. And you would expect that a medical director of a facility like Clare Oaks
would be aware of the insufficiencies that you’ve just outlined?
A. I would, particularly if he was concurrently practicing as an attending
physician within the facility.”
Clare Oaks contends that several of Dr. Lachs’s comments in this exchange constitute
impermissible testimony by him that Clare Oaks deviated from the standard of care in failing to
follow its policies and procedures. Specifically, Clare Oaks cites Dr. Lachs’s statements that
“many examples” exist, that residents have a right to be free from significant medication errors,
that the nursing staff did not read telephone orders back to physicians giving the orders, and the
director of nursing giving nurses wide latitude and discretion.
¶ 86 Again, we find that the above testimony by Dr. Lachs does not constitute testimony on the
nursing standard of care or the deviation by Clare Oaks’ staff from that standard. Rather, it
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directly pertains to Dr. Bigol and the opinion that Dr. Bigol deviated from the standard of care
applicable to him as the medical director of a nursing home to ensure that the policies and
procedures in existence at the nursing home were implemented. The examples were cited to
explain Dr. Lachs’s opinion why Dr. Bigol had deviated from the standard of care applicable to
him. The examples were also cited as a predicate for the testimony that Dr. Bigol should have
known they were not being implemented as an attending physician practicing at the facility.
There was no error in allowing this testimony.
¶ 87 Clare Oaks cites an additional example of what it contends was Dr. Lachs providing
testimony on the nursing standard of care, which occurred during his cross-examination by the
attorney for Dr. Bigol. During that testimony, Dr. Lachs agreed with a question that, until Dr.
Bigol signed a telephone order or physician’s order and that order was made part of Trendel’s
chart, nobody at Clare Oaks was supposed to be stopping her Coumadin. The plaintiffs argue that
Clare Oaks has waived review of this issue by failing to object to this testimony at trial, and it
appears to us that the plaintiffs are correct. Although Clare Oaks’ reply brief pointed out most
other places in the record where a standing objection covered testimony on which the plaintiffs
contended that an objection was waived, it makes no reply concerning this particular testimony.
We do not see how this question was encompassed within Clare Oaks’ standing objection
concerning testimony by Dr. Lachs on Clare Oaks’ compliance with its existing policies and
procedures, and thus we find that any error in its admission was waived by the failure to make a
timely objection. Gausselin v. Commonwealth Edison Co., 260 Ill. App. 3d 1068, 1079 (1994).
¶ 88 Clare Oaks next cites a series of questions that Dr. Lachs answered during cross-
examination by the attorney for Dr. Bigol. In the first, he was asked if he agreed “that it would be
reasonable for Dr. Bigol to have expectations that the nurses at a nursing home will have an
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understanding of the patient’s condition, the medications the patient is receiving and why they
are receiving those medications.” Over objection by the attorney for Clare Oaks, he testified that
he agreed. In the second, he was asked whether he would “as an attending physician have an
expectation that a nurse caring for a patient with atrial fib and who is on Coumadin would
understand what atrial fib is, understand what Coumadin is used for and understand what an INR
value means?” He answered that he would. In the third, he was asked whether, assuming that a
chart audit had been performed on March 16 and March 17, 2011, and found that an error had
been made in the discontinuation of Coumadin, that would be something that as an attending
physician he “would expect to be brought to [his] attention immediately.” He answered, “Of
course.”
¶ 89 Clare Oaks contends that Dr. Lachs’s answers to these three questions constitute improper
testimony by him on the nursing standard of care. We do not agree. We note first that this
testimony occurred on cross-examination, and the latitude which the trial court afforded to Dr.
Bigol in cross-examining the expert offering opinions against him was within its discretion.
Cetera v. DiFilippo, 404 Ill. App. 3d 20, 33 (2010). It would appear that these questions to Dr.
Lachs were probative as an effort to qualify or discredit the testimony of Dr. Lachs that Dr. Bigol
deviated from the standard of care in failing to recognize that Trendel’s Coumadin had been
discontinued after March 16 and to reinstate it prior to March 30. The defense’s position was
basically that Dr. Bigol did not breach the standard of care, because he was entitled to rely on the
staff and the procedures in place at Clare Oaks to discover that Coumadin had been discontinued
on a patient with atrial fibrillation, recognize the significance of this fact for the patient, and
bring it to his attention. These questions on cross-examination pertain to issues concerning Dr.
Bigol’s compliance with the physician’s standard of care, and they do not constitute improper
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testimony by him of the standard of care applicable to nurses.
¶ 90 In its brief, Clare Oaks engages in a lengthy discussion distinguishing this case from Wingo
v. Rockford Memorial Hospital, 292 Ill. App. 3d 896 (1997). That case recognized a limited
exception to the rule barring a physician from testifying to the nursing standard of care or to
nurses’ deviation therefrom, where the allegations of negligence at issue do not concern a
nursing procedure but instead involve what a nurse is required to communicate to a physician. Id.
at 906; see also Sullivan, 209 Ill. 2d at 118-19. We find that the exception to the licensing rule set
forth in Wingo is inapposite to the above testimony of Dr. Lachs, as we have concluded that he
was not expressing testimony on the nursing standard of care. Rather, Pignatiello’s testimony
provided ample evidence concerning the standard of care applicable to the nurses at Clare Oaks
and the ways in which they deviated from the standard.
¶ 91 Finally, Clare Oaks argues that “Dr. Bigol’s counsel violated the prohibition against
evidence of subsequent remedial measures by driving home the point that Clare Oaks now uses a
Coumadin flowsheet, despite the trial court sustaining two objections on the subject.” See Solis
v. BASF Corp., 2012 IL App (1st) 110875, ¶ 76. In the actual testimony, the attorney for Dr.
Bigol asked Dr. Lachs whether he was aware of whether Clare Oaks uses a Coumadin flow sheet
at the present time. The attorney for Clare Oaks objected, and the trial court sustained the
objection. Dr. Bigol’s attorney then asked a very similar question, which again drew an
objection. The trial court sustained the objection and instructed the witness not to answer the
question. We find no error on the part of the trial court, and no testimony was actually elicited
that Clare Oaks used a Coumadin flow sheet at the time of trial.
¶ 92 D. Theory of “Systemic Indifference”
¶ 93 Clare Oaks’ next argument on appeal is that it should receive a new trial because the
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plaintiffs’ accusations of “systemic indifference” and certain inflammatory testimony by the
plaintiffs’ expert witnesses urged the jury to punish Clare Oaks. It begins this portion of its brief
by arguing that the trial court abused its discretion and caused it unfair prejudice by denying its
motion in limine to prevent testimony by Pignatiello or Dr. Lachs that a “systemic” problem
existed at Clare Oaks on or around March 16, 2011. In that motion, Clare Oaks cited a portion of
Pignatiello’s discovery deposition, in which she had testified as follows:
“ ‘Q. Do you have an opinion, Christina, as whether or not there was a systemic
problem at Clare Oaks?
A. Absolutely there was a systemic problem with respect to implementing the
electronic health records system, as evidence [sic] by the medication administration
record, the several medication errors, which I have discussed and pointed out. There is a
problem with the staff not knowing how to interpret those medication orders and
administer them properly, and following the policies and procedures that are in place.
And, apparently, also that they don’t even know where to go to get the information,
meaning the policies and procedures.’ ”
It similarly cited a portion of Dr. Lachs’s discovery deposition, in which he testified as follows:
“ ‘Q. So policies and procedures, they were in place, fair?
A. Well, they were—it depends on how you define in place. They were
written. They existed on a shelf somewhere but—and multiple ones weren’t followed. It
wasn’t just they messed one up. It is aberrant, strikingly aberrant. And I would say had
this been—I don’t know if there was a state survey here, this would be an immediate
jeopardy in most states with the potential for widespread harm because there was
systemic medication problems. I don’t know if that happened.’ ”
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Clare Oaks argued in its motion that the opinions above were based on speculation, in that their
opinions that a “systemic” issue existed at Clare Oaks “encompasses every aspect” of the
facility’s operation, despite the fact that Trendel’s chart was the only material that either of them
had reviewed. At the hearing on the motion, the attorney for Clare Oaks focused on the word
“systemic,” arguing that the word misrepresented to the jury that the case concerned an issue that
was broader than a single patient.
¶ 94 In ruling on this motion, the trial court stated that it was reluctant to micromanage the word
choices of witnesses. It stated that, provided a proper foundation existed for the opinions being
offered, the testimony would be permitted, subject to cross-examination in which the defendants
could cross-examine the witnesses about their basis for using certain words.
¶ 95 In civil cases, the law is well established that the denial of a motion in limine does not
preserve an objection to disputed evidence later introduced at trial. Illinois State Toll Highway
Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498, 502 (1994). The moving party
remains obligated to object contemporaneously when objectionable evidence is offered at trial.
Id. While there is not always a need to repeat an objection each time that similar evidence is
presented following the denial of a motion in limine, an objection must be made the first time
that evidence is introduced. Id. If an objection is not made, the right to raise the issue on appeal
is waived. Id.
¶ 96 With the trial court’s ruling on that motion in limine as its backdrop, Clare Oaks goes on to
argue that the trial court’s denial of that motion “set the stage for plaintiffs’ counsel to attack
Clare Oaks on this basis from the opening statement onward.” Clare Oaks argues that the
argument and testimony permitted as a result of the ruling on this motion in limine “invited the
jury to reach an emotionally-charged verdict based on conduct not proximately related to Ms.
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Trendel’s treatment.”
¶ 97 We note initially that Clare Oaks does not appeal any instance in which the word
“systemic” was actually used by any witness at trial. Rather, Clare Oaks points initially to
several comments in the opening statement by the plaintiffs’ attorney. First, it points to counsel’s
statement, “You’ll soon learn that at Clare Oaks, there is no functioning system. The system has
a built-in problem that causes it to be indifferent to its patients’ most pressing needs at any given
time, on any given day.” It then cites a later portion of the plaintiffs’ opening statement, in which
counsel stated,
“So the system has no enforcement, because [Coleman] is enforcing the system; and
therefore, there’s no rules. Remember, when you hear the evidence in this case about
policies and procedures, and you’ll hear a lot of evidence because there were a lot of
policies, rules without enforcement of them are the same as having no rules at all.”
Finally, Clare Oaks asserts that this inappropriate argument was compounded by the plaintiffs’
attorney’s use of a PowerPoint and oral presentation of quotations from McFadden’s deposition
testimony. However, the record does not reflect any timely objection by Clare Oaks to any of
these statements by the plaintiffs’ attorney during opening statements, and thus any claim
pertaining to them is not preserved for review. Lovell v. Sarah Bush Lincoln Health Center, 397
Ill. App. 3d 890, 896-98 (2010) (defendant’s failure to object to comments made during
plaintiff’s attorneys opening statement waived its argument that such comments injected an
inappropriate “ ‘theme’ ” into the case and were “ ‘designed to inflame the jury from the outset’ ”).
¶ 98 Proceeding from its criticism of the opening statement, Clare Oaks next contends that the
plaintiffs “emphasized their theme of system-wide inadequacy” during the testimony by
Pignatiello and Dr. Lachs. With respect to Pignatiello, Clare Oaks’ first criticism is that the trial
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court erred in overruling an objection to a question asking her what a nurse would have written
on a physician telephone order form if in fact Dr. Bigol had discontinued Trendel’s Coumadin on
March 16, 2011. With reference to an exhibit of a sample physician-order form, she answered
that, if it was discontinued as Martinez had testified, it would say, “ ‘Discontinue all Coumadin
per Dr. Bigol.’ ” We reject the argument by Clare Oaks that this testimony emphasized an
improper argument about its system-wide inadequacy, and we find no abuse of discretion in its
admission.
¶ 99 Clare Oaks’ second criticism of Pignatiello’s testimony on this topic pertained to a policy
and procedure in existence at Clare Oaks that concerned the information that a nurse should have
about a patient at the time the nurse communicates a patient’s laboratory results to a physician.
Pignatiello was asked what assistance that information would have been to Martinez, if in fact
Dr. Bigol had ordered Trendel’s Coumadin to be discontinued on March 16, 2011. Pignatiello
began answering that, if Dr. Bigol had said to discontinue Coumadin, she would have expected
Martinez to respond to him, at which point the attorney for Clare Oaks objected “as to what she
would expect.” The trial court sustained Clare Oaks’ objection. Pignatiello was then asked to
proceed with her answer without saying what Dr. Bigol would have said, at which point she
answered without objection that she would expect Martinez as a nurse to say, “ ‘This patient has
atrial fibrillation and has been on Coumadin since her admission here, and we’ve been titrating
her dose, she’s been on it since she was admitted, why are we discontinuing it[?]’ ” Clare Oaks
did not object again or move to strike this answer. Pignatiello was then asked whether it would
end Martinez’s responsibilities if Dr. Bigol had insisted on ordering Trendel’s Coumadin
discontinued. The trial court overruled an objection by Clare Oaks as to what Pignatiello would
expect, at which point Pignatiello answered that Martinez would be responsible to write a
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physician’s order and bring it to a supervisor’s attention, as the order would have been an
unexpected order for a patient with atrial fibrillation and an INR of 1.38. We again reject the
argument by Clare Oaks that this testimony emphasized an improper argument about its system-
wide inadequacy. This testimony pertained specifically to Trendel’s case, and we find no abuse
of discretion in the rulings by the trial court.
¶ 100 Clare Oaks’ third criticism of Pignatiello’s testimony on this topic arose when she testified
that Clare Oaks had a system in place to address the reporting of lab results to a physician, what
information a nurse needs to have before reporting them, and what a nurse needs to do after
reporting them. She testified that the system was not followed for Trendel, because the “director
of nursing did not feel that the system, these policies, needed to be followed and did not educate
her nurses to follow them, and Christina Martinez was just not prepared to know what to do
because she was not educated properly or supervised properly.” No objection was made to this
testimony, and thus Clare Oaks has waived any claim of error pertaining to it. Gausselin, 260 Ill.
App. 3d at 1079.
¶ 101 Clare Oaks further argues that Pignatiello “punctuated her speculation with repeated,
inflammatory remarks.” Its first example of this is Pignatiello’s testimony that Clare Oaks’
providing of orientation to Martinez during the night shift was “just plain dangerous,” but there
was no objection by Clare Oaks to this comment at trial. Its second example was when
Pignatiello was asked what her explanation was for why there could be so many errors in
Trendel’s medication management, and in answering she stated, “It’s mind boggling as to how—
there were several other errors as well, and it’s mind boggling to me as to how many errors
should have occurred.” However, this answer was cut off by an immediate objection, which the
trial court sustained.
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¶ 102 In its third example, she was asked what conclusions she had drawn from Trendel’s
medication administration records, and she answered that there was no evidence that the director
of nursing or administrator of Clare Oaks was looking at the medication administration record to
ensure that Trendel was receiving care according to physician orders and her known plan of care.
She stated in her answer, “I know I shouldn’t use the word ‘mind boggling’ anymore.” At that
point, the trial court interjected and stated, “You’re correct, you shouldn’t use it. Refrain from
using the term ‘mind boggling.’ ” She then finished her answer by stating that she was
“astonished” and had “no explanations as to why these errors were as pervasive as they are and
went undetected.” There was no objection. Thus, we find that any claim of error is waived. Id.
We further find that the trial court cured any prejudice to Clare Oaks by interjecting on its own
that she should not use the phrase “mind boggling.”
¶ 103 As its last example of inflammatory testimony by Pignatiello, Clare Oaks cites testimony
that occurred in the context of her discussion of medication errors that she identified in Trendel’s
chart other than the discontinuation of Coumadin as of March 16, 2011. In her testimony on this
topic, she answered “no” to the question of whether it was “just one nurse that was making all
these errors.” There was no contemporaneous objection to this testimony, but Clare Oaks
contends that it was encompassed within a preceding objection that it was beyond the scope of
the plaintiffs’ Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007) disclosures of
Pignatiello’s opinions. On appeal, Clare Oaks makes no argument that this testimony violates
Rule 213(f)(3), only that it was inflammatory. Even if we agreed that the objection on the basis
of Rule 213(f)(3) encompassed this question, we would find that the objection on this specific
ground waived the objection on other grounds, including the inflammatory nature of the remark.
Russo, 2018 IL App (1st) 180467, ¶ 40.
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¶ 104 Clare Oaks argues that Dr. Lachs made additional inflammatory remarks, and it accuses
him of “name-calling.” It cites three examples, all of which occurred during his cross-
examination by Dr. Bigol’s attorney. Its examples consist of Dr. Lachs’s statement that Coleman,
in her deposition testimony, “displayed a general lack of fundamental knowledge about
Coumadin.” He then stated that Martinez’s knowledge of Coumadin was “[e]ven more aberrant”
than Coleman’s. Finally, when he was asked whether, according to deposition testimony of
Martinez that he had reviewed, Martinez was aware on March 16, 2011, of whether Trendel’s
INR was subtherapeutic, he answered, “She was clueless.” No objections were made to any of
this testimony, and thus any claim of error arising out of it is waived. Gausselin, 260 Ill. App. 3d
at 1079.
¶ 105 Finally, Clare Oaks contends that the plaintiffs inappropriately asked witnesses whether
Clare Oaks investigated the order that discontinued Coumadin for Trendel, when there was no
evidence establishing that the absence of an investigation concerning the discontinuation of
Trendel’s Coumadin was a breach of the standard of care or was a proximate cause of Trendel’s
injury. As to the testimony by Dr. Bigol that Hart-Carlson told him that she had investigated and
found out that he (Dr. Bigol) had been the one to discontinue Trendel’s Coumadin, any error is
waived by the failure to object. Id. As to the question to Coleman about whether she was aware if
any investigation had been conducted to determine why Trendel’s Coumadin had not been given
on February 27, 2011, this occurred in the context of testimony about chart audits. In context, the
question was probative of whether the chart audit process had successfully identified the fact that
Trendel’s Coumadin had not been given on February 27, consistent with the existing policies and
procedures in place at Clare Oaks. We find no abuse of discretion in the trial court’s admission
of this evidence.
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¶ 106 E. Limitation on Cross-Examination
¶ 107 Clare Oaks’ next argument on appeal is that the trial court abused its discretion by
precluding it from cross-examining the experts for the plaintiff and for Dr. Bigol concerning
their review of Dr. Pop’s letter to Dr. Bigol dated March 22, 2011, and of the two nurse
practitioner notes dated March 23 and March 25, 2011, which referred to the discontinuation of
Trendel’s Coumadin. Additionally, Clare Oaks argues that the trial court barred it from calling as
witnesses Dr. Pop and Dan Fintel, M.D., an expert disclosed by Dr. Bigol who would have
testified on this topic.
¶ 108 In Dr. Pop’s letter of March 22, he stated that he had seen Trendel that day. As part of his
assessment and plan, he noted Trendel’s atrial fibrillation and wrote, “off [Coumadin] per Dr.
Bigol. Unsure of reason for discontinuation.” During the argument on a motion in limine about
the extent to which this letter could be used at trial, the attorney for Clare Oaks informed the trial
court that he wanted to use this letter to argue that Dr. Pop saw Trendel prior to the time of her
stroke, that he was aware then that her Coumadin had been discontinued, and that he could have
taken some action then to reinstate her Coumadin or some other medication to prevent a stroke.
The trial court ruled that Clare Oaks could not use the letter for the purpose of making that
argument, because no expert testimony had been disclosed that criticized the actions of Dr. Pop
or expressed an opinion that he failed to meet the standard of care. The trial court ruled that
Clare Oaks could use the letter for other purposes on cross-examination, such as asking whether
it was something they reviewed and whether it had any effect on their opinions in the case. The
attorney for Clare Oaks then attempted to make use of the letter during the cross-examination of
Dr. Feldmann and of Dr. Lachs, at which point the trial court sustained an objection.
¶ 109 Similarly, the note by the physical medicine and rehabilitation nurse practitioner who saw
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Trendel on March 23, 2011, stated, “INR was subtherapeutic [and discontinued] on 3/16/11
[slash] Dr. Bigol.” The March 25 note by the nurse practitioner stated that Trendel was “off
therapeutic Coumadin.” When the attorney for Clare Oaks attempted to use these two notes in his
cross-examination of Pignatiello and of Dr. Bigol, the trial court sustained an objection by the
plaintiffs’ attorney. The trial court stated that it was doing so on the basis that, similar to the
concern about Dr. Pop’s letter, no expert witness had been disclosed to give testimony that the
nurse practitioner should have taken action upon realizing that Trendel’s Coumadin had been
discontinued. However, counsel was allowed to elicit from Pignatiello on cross-examination that
the nurse practitioner had entered these two notes on these dates and that anybody who picked up
Trendel’s full chart would have access to them. Similar testimony was elicited on cross-
examination of Dr. Lachs.
¶ 110 Clare Oaks argues that Dr. Pop’s letter and the two nurse practitioner notes were within the
scope of appropriate cross-examination of the expert witnesses, as all of them had reviewed these
materials in forming their opinions in the case. It argues that it should have been allowed to use
these materials for the purpose of presenting evidence to the jury of a third party’s causation of
Trendel’s injury, which would have allowed it to obtain a jury instruction on the sole proximate
cause defense. 2 It cites the principle that a defendant need not present evidence that a nonparty
was negligent in causing the injury at issue but rather a defendant only needs to present evidence
2
The Illinois pattern jury instruction on the sole proximate cause defense includes the second
paragraph of the following instruction:
“More than one person may be to blame for causing an injury. If you decide that a [the]
defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury
to the plaintiff, it is not a defense that some third person who is not a party to the suit may also
have been to blame.
[However, if you decide that the sole proximate cause of injury to the plaintiff was the
conduct of some person other than the defendant, then your verdict should be for the defendant.]”
Illinois Pattern Jury Instructions, Civil, No. 12.04 (2011).
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that a third party’s conduct caused the injury to justify the jury being instructed on this issue. See
McDonnell v. McPartlin, 192 Ill. 2d 505, 523 (2000). It argues that the trial court’s rulings
deprived it of relevant cross-examination on a critical issue, based on the trial court’s
misconception of the law. The scope of cross-examination rests with the sound discretion of the
trial court and will not be disturbed on appeal absent an abuse of that discretion. Leonardi, 168
Ill. 2d at 102.
¶ 111 The sole proximate cause defense “seeks to defeat a plaintiff’s claim of negligence by
establishing proximate cause in the act of solely another not named in the suit.” Id. at 92. Our
supreme court has repeatedly expressed the rule that a defendant “has the right to endeavor to
establish by competent evidence that the conduct of a third person, or some other causative
factor, is the sole proximate cause of plaintiff’s injuries.” (Emphasis added.) Id. at 101; see also
McDonnell, 192 Ill. 2d at 521; Nolan v. Weil-McLain, 233 Ill. 2d 416, 441 (2009). Though what
constitutes “competent evidence” may vary depending on the type of case, in complex cases
expert testimony is often necessary to constitute “competent evidence” that the sole proximate
cause of a plaintiff’s injury is the conduct of a nonparty or some other cause. Brdar v. Cottrell,
Inc., 372 Ill. App. 3d 690, 704 (2007). This would be true in medical negligence cases such as
this. Although it may not be necessary to show that a nonparty’s conduct causing the plaintiff’s
injury amounted to negligence (McDonnell, 192 Ill. 2d at 523), expert testimony on the matter is
still necessary before a defendant can argue in closing that a nonparty’s conduct was the sole
proximate cause of the injury at issue. See Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d
1026, 1036 (2003) (closing argument that is unsupported by facts in evidence is improper).
¶ 112 Furthermore, it is well established that Rule 213(f) requires a party to identify the opinions
that the party expects to elicit from an independent or controlled expert witness at trial. Ill. S. Ct.
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R. 213(f) (eff. Jan 1, 2018). In turn, Rule 213(g) provides that “[t]he information disclosed in
answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can
be given by a witness on direct examination at trial.” Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2018).
¶ 113 In this case, we find no abuse of discretion by the trial court in the limitation it imposed on
the use by Clare Oaks’ attorney of Dr. Pop’s letter or the nurse practitioner’s notes in his cross-
examination of expert witnesses for the plaintiffs or Dr. Bigol. Clare Oaks is incorrect to the
extent it implies that the trial court completely barred its use of these documents on cross-
examination. Rather, the trial court appropriately limited use of these documents on cross-
examination as a basis to imply to the jury that either Dr. Pop or the nurse practitioner was the
sole proximate cause of Trendel’s stroke by failing to take action upon noticing that Trendel’s
Coumadin had been discontinued, where Clare Oaks had disclosed no expert testimony in its
case-in-chief that would support its making of such an argument.
¶ 114 We find this principle to be illustrated by the defendants’ disclosures of Dr. Fintel’s
testimony. Although Dr. Fintel did not ultimately testify at trial, it was disclosed that he would
express the opinion that “even if the decedent’s Coumadin was restarted on March 22, 2011, it
would not have prevented the decedent’s stroke.” Assuming this is true, it would mean that no
conduct on the part of Dr. Pop or the nurse practitioner could have been a proximate cause of
Trendel’s injury, since both saw her on March 22 or after. If their conduct was not a proximate
cause at all, it could not have been the sole proximate cause. Without any expert evidence on this
point, the jury could have done nothing but speculate based on the arguments of counsel about
whether Dr. Pop or the nurse practitioner was the sole proximate cause of Trendel’s injury,
which would plainly be improper. Thus, we find no abuse of discretion in the trial court’s ruling.
¶ 115 We similarly reject the argument of Clare Oaks that the trial court abused its discretion in
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refusing to allow it to call Dr. Pop as a witness at trial. When this issue arose at trial, Clare Oaks’
attorney explained that his purpose in calling Dr. Pop was to have him confirm that he did not
put Trendel on Coumadin upon seeing her on March 22. We agree with the plaintiff that Clare
Oaks’ proposed purpose for eliciting this testimony, which was to argue that Dr. Pop was the
sole proximate cause of Trendel’s injury, would have contradicted its Rule 213(f) disclosure that
it expected to elicit the opinion from Dr. Pop that “nothing he/she did or should have done
caused harm to the decedent.” This disclosure limited the testimony that Dr. Pop could give on
direct examination at trial (Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2018)), and the opinion would not
have supported the argument Clare Oaks sought to make from it. Further, the plaintiff was
entitled to rely on this disclosure in preparing its case for trial. Fakes v. Eloy, 2014 IL App (4th)
121100, ¶ 72. Thus, we find no abuse of discretion on the part of the trial court in granting the
plaintiffs’ motion in limine to bar Clare Oaks from calling Dr. Pop at trial.
¶ 116 Finally, we find no abuse of discretion on the part of the trial court in granting the
plaintiffs’ motion in limine to bar the testimony of Dr. Fintel. At trial, the attorney for Clare Oaks
agreed that his only purpose for calling Dr. Fintel was to elicit testimony concerning the contents
of Dr. Pop’s letter. However, there was again no disclosure of any opinion by Dr. Fintel that Dr.
Pop’s conduct was the sole proximate cause of Trendel’s injury. Rather, as we discussed above,
his disclosure would appear to indicate that Dr. Pop was not a proximate cause of Trendel’s
stroke at all.
¶ 117 F. Failure to Establish Proximate Causation
¶ 118 Clare Oaks’ last argument on appeal concerning the evidence at trial is that the jury’s
verdict was against the manifest weight of the evidence, specifically concerning the evidence of
a causal connection between the conduct of Clare Oaks’ staff and Trendel’s stroke and death.
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Therefore, Clare Oaks argues that this court should set aside the jury’s verdict and order a new
trial. A reviewing court will set aside a jury’s verdict only if it is against the manifest weight of
the evidence, that is, only where the jury’s findings are unreasonable, arbitrary, and not based on
the evidence presented or where the opposite conclusion is clearly apparent. Klingelhoets v.
Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 26.
¶ 119 Clare Oaks argues first that the jury’s verdict in this case was “undeniably based on passion
and undue sympathy given the inflammatory testimony of plaintiffs’ experts.” Above we rejected
the argument by Clare Oaks that the plaintiffs’ expert witnesses gave inflammatory testimony,
and thus we reject this argument as a basis for a new trial.
¶ 120 Next, Clare Oaks contends that the jury’s rendering of a verdict in favor of Dr. Bigol but
against Clare Oaks demonstrates a break in the causal chain between the conduct of Clare Oaks
and Trendel’s injury. Clare Oaks reasons that, by finding in favor of Dr. Bigol on the plaintiffs’
claims against him, the jury must have determined either that he did not order Trendel’s
Coumadin discontinued or that the plaintiffs presented insufficient evidence he gave this
instruction to Martinez. Clare Oaks goes on to reason that, in order to link the allegations that
Martinez and Coleman negligently handled the order from Dr. Bigol to discontinue Coumadin,
the plaintiffs had to present sufficient evidence that Dr. Bigol gave that order.
¶ 121 We find no merit to this argument by Clare Oaks. There are numerous bases in the evidence
that would support the jury’s finding in favor of Dr. Bigol but against Clare Oaks. As one
example, the jury could have believed Dr. Bigol that he had not ordered Coumadin discontinued
but nevertheless found that Martinez had misunderstood what he had said. In this scenario, it
could have found that Dr. Bigol complied with the standard of care applicable to him but that
Martinez had breached the standard of care by failing to read the order back to him or to
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document it as a physician telephone order so that the mistake could be discovered in a timely
manner.
¶ 122 Clare Oaks further argues that the evidence linking the discontinuation of Coumadin to
Trendel’s stroke disproves the plaintiffs’ theory that Martinez’s charting errors prevented other
medical professionals from learning that Trendel’s Coumadin had been discontinued. It argues
that Coumadin could not have been discontinued if Trendel’s health-care providers did not act on
that order. Again, we disagree. There was abundant evidence presented that, whether the order
was actually given or not, Martinez breached the standard of care by failing to document what
she believed to be an order discontinuing Coumadin in the physician’s telephone orders section
of Trendel’s chart. If she had done so, the evidence showed that the error would have been
discovered and corrected either during a nightly chart audit or by Dr. Bigol when he signed the
telephone order. For all of these reasons, the jury verdict in favor of the plaintiffs and against
Clare Oaks was not against the manifest weight of the evidence.
¶ 123 G. Attorney Fees
¶ 124 Clare Oaks’ next argument on appeal is that the trial court erred by granting attorney fees to
the plaintiffs in an amount equal to one-third of the gross amount of the verdict, which was the
contingent fee that the plaintiffs had contractually agreed to pay their attorneys for legal services
performed on the case. Clare Oaks’ principal contention on this point is that the trial court erred
by awarding attorney fees in the amount of the one-third contingent fee because the plaintiffs
failed to provide sufficient evidence that this amount constituted a reasonable fee.
¶ 125 In general, a trial court cannot award attorney fees to a party unless the fees are specifically
authorized by a statute or by a contract between the parties. People ex rel. Schad, Diamond &
Shedden, P.C. v. My Pillow, Inc., 2017 IL App (1st) 152668, ¶ 101. In this case, section 3-602 of
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the Nursing Home Care Act provides that “[t]he licensee shall pay the actual damages and costs
and attorney’s fees to a facility resident whose rights, as specified in Part 1 of Article II of this
Act, are violated.” 210 ILCS 45/3-602 (West 2016). Among the rights specified in part 1 of
article II is a resident’s right to be free from neglect, which the jury found that Clare Oaks had
violated with respect to Trendel in this case. Id. § 2-107.
¶ 126 In Berlak v. Villa Scalabrini Home for the Aged, Inc., 284 Ill. App. 3d 231, 234 (1996), this
court affirmed a trial court’s award of $85,000 in attorney fees under section 3-602, even though
the verdict obtained by the resident was only $7478.96, less a reduction of 50% for the resident’s
comparative fault. In doing so, the court explained that the purpose of shifting the prevailing
resident’s attorney fee to the licensee was “to encourage nursing home residents to seek legal
redress against nursing homes for violations of their rights.” Id. at 236. The court quoted from
the supreme court’s decision in Harris v. Manor Healthcare Corp., 111 Ill. 2d 350 (1986), in
which the supreme court discussed the purpose of section 3-602, which at that time allowed for
treble damages in addition to attorney fees: 3
“ ‘[W]ithout the possibility of recovering treble damages and attorney fees, many residents
would likely forgo suing a licensee for violations of the Act. The legislature could
reasonably assume that residents, either because of their advanced age, mental or physical
infirmities or lack of financial resources are often unlikely to pursue costly and time-
consuming litigation in the hope of receiving an uncertain or small recovery. *** Moreover,
many violations of the Act will yield little in the way of actual monetary damages. ***
Providing for the recovery of treble damages has the presumed effect of encouraging
3
Prior to July 21, 1995, section 3-602 of the Nursing Home Care Act stated, “The licensee shall pay 3
times the actual damages, or $500, whichever is greater, and costs and attorney’s fees to a facility resident
whose rights, as specified in Part 1 of Article II of this Act, are violated.” 210 ILCS 45/3-602 (West
1994). It was amended by section 90 of Public Act 89-197. Pub. Act 89-197, § 90 (eff. July 21, 1995).
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private enforcement as well as encouraging compliance with the Act.’ ” Berlak, 284 Ill.
App. 3d at 236 (quoting Harris, 111 Ill. 2d at 369-70).
The court in Berlak went on to state that the recovery of attorney fees by a resident who prevails
in a private right of action was even more important than the recovery of treble damages for a
resident to pursue litigation under the Nursing Home Care Act, as “[w]ithout that recovery, it is
unlikely that attorneys would be adequately remunerated for their successful efforts.” Id.
¶ 127 Citing these policies from Berlak and Harris, Clare Oaks begins by arguing that they have
no application in this case. Clare Oaks states that the verdict in this case of $4,111,477.66 was
the largest jury verdict ever in a case brought under the Nursing Home Care Act. They argue that
the plaintiffs’ attorneys would have had ample incentive to take this case even without a fee-
shifting statute. It is not evident from Clare Oaks’ brief what its point is with respect to its
discussion of the purpose of the statute, as it does not then argue that fee-shifting is inappropriate
in this case. To the extent that Clare Oaks is arguing that fee shifting is not appropriate in a case
where a nursing home has committed obvious neglect that resulted in significant injury to a
resident, we reject such an argument. We adhere in this case to our previous holding that the
requirement that a licensee pay the attorney fees of a resident who prevails in an action for the
violation of a right under the Nursing Home Care Act is mandatory. Id. at 235; see also Rath v.
Carbondale Nursing & Rehabilitation Center, Inc., 374 Ill. App. 3d 536, 543 (2007).
¶ 128 As we stated above, Clare Oaks’ primary argument is that the trial court erred by awarding
attorney fees to the plaintiffs in the amount of their contingent fee. Clare Oaks argues that the
proper “starting point” was the “lodestar” approach, in which reasonable fees are calculated by
multiplying the number of hours reasonably spent by the attorney on the litigation by a
reasonable hourly rate. See Berlak, 284 Ill. App. 3d at 242-43. Under this approach, Clare Oaks
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contends, the plaintiffs must present the trial court with a properly supported fee petition that
specifies what legal services were performed, by whom, the time expended, and the rate charged.
See Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 102. This would
include “detailed entries describing services rendered based on records ‘maintained during the
course of the litigation containing facts and computations upon which the charges are
predicated.’ ” Id. ¶ 103 (quoting Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d
978, 984 (1987)). Clare Oaks argues that the plaintiffs failed to provide the trial court with
sufficient evidence to establish that the fees they sought were reasonable. Clare Oaks points out
that it was not until the plaintiffs filed their reply brief that they provided estimates of the time
their attorneys had spent working on the case over the years of the litigation and that these time
estimates were reconstructed well after the work was completed. Clare Oaks contends that, if the
trial court had “applied even superficial scrutiny, much less correctly applied the lodestar
method, the court would have denied plaintiffs’ fee petition or at least significantly reduced
plaintiffs’ fee award.”
¶ 129 In Berlak, this court recognized that, while the statute establishes a prevailing nursing home
resident’s right to fees, it is silent as to the manner in which those fees are to be computed.
Berlak, 284 Ill. App. 3d at 240. Because the verdict in that case was only $7478.96 reduced by
half, the plaintiff employed the lodestar approach in the petition for fees, seeking a reasonable
hourly rate for the number of hours actually expended on the litigation. Id. at 242-43. The court
characterized this approach as “ ‘[t]he most useful starting point for determining the amount of a
reasonable fee.’ ” Id. at 243 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). However,
while it is true that the lodestar method will be the most useful starting point in many cases, “it is
not the only starting point.” Kirchoff v. Flynn, 786 F.2d 320, 324 (7th Cir. 1986).
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¶ 130 Nothing prohibits a plaintiff, in seeking fees under a fee-shifting statute, from requesting
fees in an amount equal to the contingent fee that the plaintiff has contractually agreed to pay his
or her attorney for the attorney’s work on the case and establishing that such amount is
reasonable. Likewise, nothing prohibits a trial court from awarding statutory attorney fees in an
amount equal to that contingent fee, as long as the plaintiff meets the burden of sufficiently
establishing that the fees sought are reasonable. See, e.g., Blankenship v. Dialist International
Corp., 209 Ill. App. 3d 920, 926-27 (1991); Dunn v. Illinois Central Gulf R.R. Co., 215 Ill. App.
3d 190, 201-02 (1991); see also Pietrzyk v. Oak Lawn Pavilion, Inc., 329 Ill. App. 3d 1043,
1045-46 (2002) (affirming attorney fee equal to one-third of verdict for plaintiff’s claim under
the Nursing Home Care Act, where parties agreed that one-third contingency fee was a
reasonable attorney fee for the case).
¶ 131 In cases where the trial court is assessing a reasonable attorney fee under a fee-shifting
statute, “the objective is ‘ “to award the plaintiff’s counsel the market rate for the services
reasonably required to produce the victory.” ’ ” Blankenship, 209 Ill. App. 3d at 926-27 (quoting
Renken v. Northern Illinois Water Co., 191 Ill. App. 3d 744, 751 (1989), quoting Kirchoff, 786
F.2d at 328); see also Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505,
¶¶ 51-52. Where a contingency fee represents the standard remuneration for the type of case
involved, an award in the amount of the contingency fee may be appropriate. Dunn, 215 Ill. App.
3d at 202 (citing Renken, 191 Ill. App. 3d at 752). However, trial courts “ ‘are not to rely
arbitrarily on a contingency arrangement as the standard for determining a reasonable attorney
fee.’ ” Dunn, 215 Ill. App. 3d at 201-02 (quoting Renken, 191 Ill. App. 3d at 752). Instead, trial
courts are to consider the contractual fee arrangement between the attorney and the client as one
factor in their determination of a reasonable fee. Blankenship, 209 Ill. App. 3d at 927 (citing
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Renken, 191 Ill. App. 3d at 752). Other factors for the trial court to consider in determining
reasonable attorney fees include the skill and standing of the attorney employed, the nature of the
cause, the novelty and difficulty of the questions at issue, the amount and importance of the
subject matter, the degree of responsibility involved in the management of the cause, the time
and labor required, the usual and customary charge in the community, and the benefits resulting
to the client. Id.; see also Pietrzyk, 329 Ill. App. 3d at 1046. A trial court has broad discretion in
awarding attorney fees, and its discretion will not be reversed on appeal absent an abuse of
discretion. Watson v. South Shore Nursing & Rehabilitation Center, LLC, 2012 IL App (1st)
103730, ¶ 49.
¶ 132 In this case, with an exception discussed below concerning the elements of damages under
the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2016)), we find that the trial court did
not abuse its discretion in awarding attorney fees in an amount equal to the contingent fee that
the plaintiffs had contractually agreed to pay their attorneys. As such, the trial court did not
abuse its discretion in determining that it did not need to address the lodestar approach or
whether the plaintiffs’ submissions were sufficient under the lodestar approach.
¶ 133 We do not find this to be a case in which the trial court relied arbitrarily on the contingent-
fee agreement, but rather the trial court considered the contingency arrangement among all of the
relevant factors in assessing the reasonableness of the fee. It did so after conducting a full
evidentiary hearing, at which both the plaintiffs and Clare Oaks put on evidence and made
arguments concerning the reasonableness of the fees sought, and Clare Oaks had the opportunity
to cross-examine the expert witness proffered by the plaintiffs on the issue. It is evident that the
trial court took into consideration the skill and standing of the plaintiffs’ attorneys in prosecuting
cases involving nursing home neglect, as Clare Oaks stipulated that they were of the highest
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competence in the handling and prosecution of such cases.
¶ 134 Additionally, Clare Oaks also stipulated that a contingent fee was the customary
remuneration received by attorneys representing plaintiffs in personal injury claims arising out of
nursing home neglect in Cook County. Ample testimony was adduced at the evidentiary hearing
concerning contingent-fee arrangements. This court further takes judicial notice, and the trial
court was no doubt aware, that the General Assembly has by statute provided that “[i]n all
medical malpractice actions the total contingent fee for plaintiff’s attorney or attorneys shall not
exceed 33 1/3% of all sums recovered.” 735 ILCS 5/2-1114(a) (West 2016). Thus, it was well
within the trial court’s discretion to conclude that a fee in the amount of one-third of the verdict
for the Nursing Home Care Act claim constituted the “ ‘ “market rate for the services reasonably
required to produce the victory” ’ ” and accordingly to order that Clare Oaks pay this fee to the
plaintiffs. Blankenship, 209 Ill. App. 3d at 926-27 (quoting Renken, 191 Ill. App. 3d at 751,
quoting Kirchoff, 786 F.2d at 328).
¶ 135 It is further evident to this court that the trial court was fully aware of and considered other
factors also in determining a reasonable attorney fee. Prior to the commencement of trial, the
trial court was involved in multiple days of settlement discussions with the parties as well as
argument concerning approximately 80 motions in limine filed by the defendants and an
additional 14 motions filed by the plaintiffs. The trial court observed the work by the attorneys at
trial and ruled on a lengthy posttrial motion. Having participated in all of this, the trial court was
sufficiently familiar with the time and work required on the part of the plaintiffs’ attorneys to
bring a case such as this to verdict. Thus, we reject the argument by Clare Oaks that the plaintiffs
failed to provide the trial court with sufficiently detailed records of the time their attorneys spent
and the work they performed on the litigation to support the reasonableness of the fees sought.
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¶ 136 Evidence of the time spent by the attorney performing work on the case is one of the
relevant factors for a trial court to consider, but the failure of the attorney to keep
contemporaneous time records does not negate the reasonableness of the fee award. Kirkpatrick
v. Strosberg, 385 Ill. App. 3d 119, 139 (2008); see also Will v. Northwestern University, 378 Ill.
App. 3d 280, 302-03 (2007) (upholding reasonableness of attorney fee award under contingency
agreement despite absence of detailed time records). A trial court is permitted to use its own
knowledge and experience to assess the time required to complete particular activities involved
in a case. Kirkpatrick, 385 Ill. App. 3d at 139. The trial court can also rely on its own observation
of the progression of the case and the work involved on the part of the attorneys seeking fees. Id.
¶ 137 For similar reasons, we reject Clare Oaks’ argument that the trial court erred in denying it
discovery concerning the time estimates submitted by the plaintiffs to support their request for
fees. Such discovery would not have been relevant in light of the fact that the plaintiffs were not
seeking to establish a claim for fees based on the lodestar approach of substantiating the actual
number of hours spent on the litigation. We also reject Clare Oaks’ argument that the trial court’s
award of fees should be reversed because the plaintiffs cannot recover fees for pursuing
unsuccessful claims against respondents in discovery or against the codefendants of Clare Oaks.
Clare Oaks cites nothing that would indicate to this court that the trial court ordered Clare Oaks
to pay the plaintiffs’ attorney fees for any claims other than the claims against Clare Oaks on
which the plaintiffs prevailed. It is evident to us that the award of fees pertained only to the
claims against Clare Oaks. Thus, there is no merit to the argument by Clare Oaks that a reduction
in the fee award is required because the plaintiffs were unsuccessful in their claims against the
codefendants of Clare Oaks.
¶ 138 We do agree with Clare Oaks, however, that the trial court abused its discretion by
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including, in its assessment of attorney fees to be paid by Clare Oaks, an amount equal to one-
third of the amount of damages assessed by the jury for the elements of damages recovered by
Trendel’s next of kin under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2016)).
As referenced above, the total amount of damages assessed by the jury in this case was
$4,111,477.66. Of that total, the jury allocated $250,000 for the loss of society, grief, and sorrow
sustained by Trendel’s next of kin following her death, which are elements of damages under the
Wrongful Death Act. Id. § 2. The remaining $3,861,477.66 was allocated to elements of damages
suffered by Trendel prior to her death for violations of the Nursing Home Care Act (210 ILCS
45/1-101 et seq. (West 2016)). The trial court awarded fees in the amount of $1,370,492.55,
which was one-third of the amount of the total verdict. In doing so, the trial court found that the
claim under the Nursing Home Care Act was “inextricably intertwined” with the claim under the
Wrongful Death Act.
¶ 139 In Pietrzyk, this court addressed a situation where a plaintiff obtained a verdict in which the
jury allocated damages both to claims under the Nursing Home Care Act and to claims by next
of kin under the Wrongful Death Act. Pietrzyk, 329 Ill. App. 3d at 1044. Following the verdict,
the trial court determined that, although the plaintiff was entitled to attorney fees in the amount
of one-third of the damages for the claim under the Nursing Home Care Act, the plaintiff was not
also entitled to fees in the amount of one-third of the damages for wrongful death. Id. at 1045.
On appeal, the parties agreed that a one-third contingency fee was a reasonable attorney fee for
the case, and the question before the court was whether, as a matter of law, the plaintiff was
entitled to attorney fees based on the amount of the entire verdict or only on the amount of the
damages attributed to claims under the Nursing Home Care Act. Id. at 1046. The plaintiff’s only
argument was that, in a fee-shifting case where there are both claims subject to fees and claims
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not subject to fees, a party is entitled to fees on an otherwise uncovered claim “where the two
claims ‘arise out of a common core of facts and related legal theories.’ ” Id. at 1047. The plaintiff
argued that her claims under the Wrongful Death Act required proof of virtually the same
elements as her claims under the Nursing Home Care Act and thus the claims were
“ ‘inextricably linked.’ ” Id. at 1047-49. A majority of this court disagreed with the plaintiff’s
argument.
¶ 140 The majority of the court reasoned that, in a case such as the one before it, there were
multiple parties in interest pursuing two distinct causes of action. Id. at 1050. One party in
interest was the decedent’s estate pursuing a cause of action under the Nursing Home Care Act
for injuries sustained by the decedent prior to his or her death, as such a claim survived the death
of the decedent. Id. at 1049-50. The other parties in interest were the decedent’s next of kin,
pursuing a distinct cause of action for their own damages arising from the decedent’s wrongful
death. Id. at 1050. The court stated that damages for wrongful death were not recoverable under
the Nursing Home Care Act. Id. (citing Wills v. De Kalb Area Retirement Center, 175 Ill. App.
3d 833, 842 (1988)). The majority went on to reason that the “common-core-of-facts” doctrine
relied upon by the plaintiff applied to a situation where the same plaintiff pursues multiple
causes of action, some of which are subject to fee shifting and some of which are not. Id. at
1051. It described the doctrine as a method for a trial court to shift fees “where the time charged
in litigating the covered causes of actions was indistinguishable from the time charged in
litigating the uncovered causes of actions.” Id. However, the majority of the court held that the
doctrine was inapplicable because “it has not been disputed which parts of the verdict comprise
damages for the Nursing Home Care Act claim and which comprise damages for the wrongful
death claim.” Id. The dissenting justice would have found that a common core of facts and
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related legal theories existed between the two claims and that therefore the plaintiff should be
entitled to fees on the full verdict. Id. at 1051-52 (Reid, J., dissenting).
¶ 141 Based on the majority’s holding in Pietrzyk, we hold that the trial court abused its discretion
in granting the plaintiffs’ request for attorney fees in an amount equal to one-third of the full
verdict, where the basis of the plaintiffs’ request was a contingency agreement and the verdict
comprised damages for claims under the Nursing Home Care Act and for claims by the next of
kin under the Wrongful Death Act. Although we do not disagree with the trial court that the work
required to establish the two claims was “inextricably intertwined,” we believe that the jury’s
itemization of damages sufficiently distinguishes the portion of the verdict that is subject to fee
shifting on a contingency basis from the portion that is not subject to fee shifting.
¶ 142 H. Costs
¶ 143 Clare Oaks’ final argument on appeal is that the trial court erred by awarding certain costs
to the plaintiffs. The trial court awarded costs to the plaintiffs in the amount of $147,471.55,
which included reimbursement 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 at the trial, production expenses for a day-in-the-life
video, and expenses of travel for McFadden’s deposition. In doing so, the trial court stated that
section 3-602 of the Nursing Home Care Act (210 ILCS 45/3-602 (West 2016)) allowed costs to
be shifted that were in addition to the ordinary statutory costs associated with the filing of a
lawsuit.
¶ 144 Clare Oaks argues on appeal that the trial court erred in awarding costs in excess of those
taxable costs authorized by section 5-108 of the Code of Civil Procedure (735 ILCS 5/5-108
(West 2016)) and the case law interpreting that statute. That statute provides:
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“If any person sues in any court of this state in any action for damages personal to the
plaintiff, and recovers in such action, then judgment shall be entered in favor of the
plaintiff to recover costs against the defendant, to be taxed, and the same shall be
recovered and enforced as other judgments for the payment of money, except in the cases
hereinafter provided.” Id.
Clare Oaks argues that the costs recoverable under section 3-602 are the same as the costs
recoverable under section 5-108. As stated above, section 3-602 provides that “[t]he licensee
shall pay the actual damages and costs and attorney’s fees to a facility resident whose rights, as
specified in Part 1 of Article II of this Act, are violated.” 210 ILCS 45/3-602 (West 2016). This
issue presents a question of statutory interpretation, which this court reviews de novo. Sekura v.
Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, ¶ 46.
¶ 145 In interpreting statutes, the function of the court is to ascertain and give effect to the intent
of the legislature. Harris, 111 Ill. 2d at 362. The most reliable indicator of legislative intent is the
statutory language, given its plain and ordinary meaning. Better Government Ass’n v. Illinois
High School Ass’n, 2017 IL 121124, ¶ 22. We view a statute as a whole, construing words and
phrases in context to other relevant statutory provisions and not in isolation. Murphy-Hylton v.
Lieberman Management Services, Inc., 2016 IL 120394, ¶ 25. Further, courts will avoid a
construction of a statute that renders any portion of it meaningless or void. Harris, 111 Ill. 2d at
362-63. In ascertaining the intent of the legislature and interpreting the relationship between
statutes, the court may consider the reason and necessity for the legislation, the evils it was
designed to remedy, and the objects and purposes the General Assembly sought to achieve. Id. at
362; Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 103 (2003).
¶ 146 At common law, a losing litigant was not responsible for paying the court costs or expenses
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of his prevailing adversary. Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 299 (2003).
However, section 5-108 of the Code of Civil Procedure constitutes a statutory authorization for a
prevailing plaintiff to recover costs from a defendant. 735 ILCS 5/5-108 (West 2016). Statutes
allowing for the recovery of costs from an opponent in litigation are in derogation of the
common law. Vicencio, 204 Ill. 2d at 300. Therefore, such statutes must be narrowly construed,
and “only those costs specifically designated by statute may be taxed as costs.” Id.; see also In re
Marriage of Tiballi, 2014 IL 116319, ¶¶ 24-25.
¶ 147 In Vicencio, the supreme court analyzed what “costs” a prevailing plaintiff may recover
from a defendant under section 5-108. Vicencio, 204 Ill. 2d at 300-02. In doing so, it stated that
“the term ‘costs’ has acquired ‘a fixed and technical meaning in the law.’ ” Id. at 301 (quoting
Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 165 (1982)). “ ‘Costs are allowances in the
nature of incidental damages awarded by law to reimburse the prevailing party, to some extent at
least, for the expenses necessarily incurred in the assertion of his rights in court.’ ” Id. (quoting
Galowich, 92 Ill. 2d at 165-66). The term thus “describes a characteristic shared by all categories
of taxable costs (‘necessarily incurred’), but it does not prescribe a rule that draws a line between
those that must be taxed pursuant to section 5-108 and those that may be taxed pursuant to
another statute or rule.” Id. at 301-02. The supreme court distinguished “court costs, the ‘charges
or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees’ ” from
“litigation costs, the ‘expenses of litigation, prosecution, or other legal transaction, esp[ecially]
those allowed in favor of one party against the other.’ ” Id. at 302 (quoting Black’s Law
Dictionary 350 (7th ed. 1999)). The court recognized that it was “undisputed that section 5-108
mandates the taxing of costs commonly understood to be ‘court costs,’ such as filing fees,
subpoena fees, and statutory witness fees, to the losing party.” Id. It held, however, that a
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“litigation cost,” such as the professional fee charged by a treating physician to give testimony,
“may be taxed as a cost only if authorized by another statute or by supreme court rule.” Id.
¶ 148 Clare Oaks argues that section 3-602 of the Nursing Home Care Act (210 ILCS 45/3-602
(West 2016)) does not define the term “costs” any differently or more broadly than section 5-
108. Clare Oaks notes that the last time that the General Assembly amended section 3-602 was
1995. See Pub. Act 89-197, § 90 (eff. July 21, 1995). That was long after the supreme court’s
pronouncement that the term “costs” had the fixed and technical meaning as allowances to
reimburse the prevailing party for “the expenses necessarily incurred in the assertion of his rights
in court,” as opposed to “the ordinary expenses of litigation.” Galowich, 92 Ill. 2d at 165-66.
However, the General Assembly made no amendment concerning the word “costs” as used in
section 3-602. See Pub. Act 89-197, § 90 (eff. July 21, 1995). Based on this, Clare Oaks argues,
this court should presume that the General Assembly intended to adopt the supreme court’s
definition of costs as including only court costs and not litigation costs. Clare Oaks further points
out that, in instances when the General Assembly intends a cost-shifting provision to have a
broader scope, it has used broader terminology than simply the word “costs.” See 735 ILCS
30/10-5-65(a) (West 2016) (court rendering judgment for property owner in inverse
condemnation proceedings may award further sums to “reimburse the property owner for the
owner’s reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal,
and engineering fees actually incurred by the property owner in those proceedings”).
¶ 149 For their part, the plaintiffs argue that we should give a broad interpretation to the word
“costs” as used in section 3-602. They point out that, at the time when the General Assembly
enacted the cost-shifting provision of section 3-602, it was aware that a prevailing plaintiff had a
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statutory right to recover costs. See Ill. Rev. Stat. 1979, ch. 33, ¶ 7. 4 Thus, the plaintiffs argue, if
“costs” under section 3-602 is interpreted to mean the same thing as “costs” under section 5-108,
that would render redundant the General Assembly’s use of the word “costs” in section 3-602.
The plaintiffs argue that we must, if possible, avoid an interpretation that would render the term
“costs” in section 3-602 superfluous or meaningless. See Bonaguro v. County Officers Electoral
Board, 158 Ill. 2d 391, 397 (1994).
¶ 150 The plaintiffs further argue that, in discerning the legislative intent in enacting section 3-
602, we should consider that a broad interpretation of the “costs” recoverable under section 3-
602 is commensurate with the purpose of the Nursing Home Care Act. As our supreme court has
observed, the Nursing Home Care Act was adopted “ ‘amid concern over reports of ‘inadequate,
improper and degrading treatment of patients in nursing homes.’ ” Eads, 204 Ill. 2d at 97
(quoting Harris, 111 Ill. 2d at 357-58, quoting 81st Ill. Gen. Assem., Senate Proceedings, May
14, 1979, at 184 (statements of Senator Berning)). Among its provisions, the Nursing Home Care
Act created a residents’ “bill of rights,” which guaranteed residents “the right to be free from
abuse and neglect by nursing home personnel.” Id. One means by which the General Assembly
sought to ensure that nursing homes complied with the requirements of the Nursing Home Care
Act was by expressly granting nursing home residents a private cause of action for damages and
other relief against nursing home owners and operators who violate its provisions. Id. at 97-98.
4
At the time of the enactment of the Nursing Home Care Act, the statute providing for costs to a
prevailing plaintiff stated:
“If any person shall sue in any court of this state in any action, real, personal or mixed, or upon
any statute, for any offense or wrong immediately personal to the plaintiff, and shall recover any
debt, or damage in such action, then the plaintiff shall have judgment to recover costs against the
defendant, to be taxed, and the same shall be recovered, together with the debt or damages, by
execution, except in the cases hereinafter mentioned.” Ill. Rev. Stat. 1979, ch. 33, ¶ 7.
This statute was later repealed (Pub. Act 82-280, § 19B-101 (eff. July 1, 1982)), at which time a statute
with substantially similar language was adopted as section 5-108 of the Code of Civil Procedure. Id. § 5-
108.
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By doing so, the General Assembly embraced the concept of a “private attorney general,”
realizing that the Department of Public Health could not police every nursing home on a daily
basis to detect violations of the Nursing Home Care Act and that the residents themselves were
in the best position to know of and seek redress for violations. Id. at 98.
¶ 151 When the General Assembly originally enacted the Nursing Home Care Act, it provided in
section 3-602 that “[t]he licensee shall pay 3 times the actual damages, or $500, whichever is
greater, and costs and attorney’s fees to a facility resident whose rights, as specified in Part 1 of
Article II of this Act, are violated.” Pub. Act 81-223, § 3-602 (eff. Mar. 1, 1980). In construing
that version of section 3-602, the supreme court has stated that the legislative purpose behind its
enactment was “encouraging private enforcement as well as encouraging compliance with the
[Nursing Home Care] Act.” Harris, 111 Ill. 2d at 370. In elaborating on this purpose, the supreme
court stated further:
“[W]ithout the possibility of recovering treble damages and attorney fees, many residents
would likely forgo suing a licensee for violations of the Act. The legislature could
reasonably assume that residents, either because of their advanced age, mental or physical
infirmities or lack of financial resources are often unlikely to pursue costly and time-
consuming litigation in the hope of receiving an uncertain or small recovery. As plaintiff
observes, the expected time it would normally take to resolve the case frequently is
longer than a resident’s life expectancy. A nursing home resident under such circum-
stances has little incentive to seek redress for violations of the Act. Moreover, many
violations of the Act will yield little in the way of actual monetary damages.” Id. at 369.
In Berlak, this court stated that the recovery of attorney fees under section 3-602 was “even more
necessary than the recovery of treble damages in order for a resident to pursue litigation under
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the Nursing Home Care *** Act.” Berlak, 284 Ill. App. 3d at 236.
¶ 152 The plaintiffs argue that, in light of the legislative purposes set forth above, it is logical to
assume that the General Assembly intended “costs” to be broadly recoverable under section 3-
602, because the costs to a plaintiff of prosecuting litigation against nursing homes is often
significant, especially when medical evidence is required. They argue that limiting their recovery
to those costs already available under section 5-108 would not be consistent with the statute’s
purpose of encouraging private enforcement and encouraging compliance with the Nursing
Home Care Act, especially in cases with a small potential for monetary recovery.
¶ 153 In resolving this issue, our task is to ascertain what “costs” the General Assembly intended
for a licensee to pay to a resident who establishes the violation of his or her rights under the
Nursing Home Care Act. With respect to the meaning of “costs” as used in section 3-602, we
find, as our supreme court did with the use of that term in section 5-108, that “[t]he plain and
ordinary meaning of the term *** does not enlighten us.” Vicencio, 204 Ill. 2d at 301. Although
“costs” is a legal term of art, its dictionary definition includes both “court costs, the ‘charges or
fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees’ ” and the
broader concept of “litigation costs, the ‘expenses of litigation, prosecution, or other legal
transaction, esp[ecially] those allowed in favor of one party against the other.’ ” Id. at 302
(quoting Black’s Law Dictionary 350 (7th ed. 1999)).
¶ 154 In Vicencio, when the supreme court was interpreting the meaning of “costs” as used in
section 5-108, it was construing the general statutory provision that allows a plaintiff who
prevails in any action for damages personal to the plaintiff to recover costs. The court thus found
it “undisputed” that the costs mandated to be taxed against the losing party under that statute
included those commonly understood to be “court costs,” not “litigation costs.” Id. The court
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recognized, however, that litigation costs may be taxed “if authorized by another statute or by
supreme court rule.” Id.
¶ 155 We agree with the plaintiffs that it can be presumed that, when the General Assembly
enacted section 3-602, it was aware that the predecessor statute to section 5-108 already allowed
for the taxation of “court costs” to any prevailing plaintiff against any losing defendant. We
therefore agree with the plaintiffs that, if we construed the word “costs” in section 3-602 to mean
the same thing as “costs” in section 5-108, we would be finding that the legislature’s inclusion of
this term in section 3-602 afforded a nursing home resident who prevails against a licensee with
nothing beyond what was already provided by Illinois law.
¶ 156 Further, in attempting to ascertain legislative intent by looking at the reason and necessity
for the legislation, the evils it was designed to remedy, and the objects and purposes the General
Assembly sought to achieve, we agree that a broad interpretation of “costs” is more consistent
with the recognized purpose of section 3-602 and the other terms that the legislature chose to
provide in that statute. As discussed in detail above, the purpose of section 3-602 is to encourage
nursing home residents to privately enforce their rights under the Nursing Home Care Act, by
reducing the financial disincentives that nursing home residents or their families may have to
engaging in litigation to do so. Section 3-602 does this by shifting certain financial burdens of
litigation from the residents to the licensees of the nursing homes who violate residents’ rights.
The expectation is that the prospect of litigation, in which the nursing home will be responsible
not just for a prevailing resident’s actual damages (which may be modest) but for their attorney
fees and costs as well, will have the effect of encouraging nursing homes to comply with the
Nursing Home Care Act and decrease future instances where residents’ rights are violated.
¶ 157 Further, it is a fundamental rule of statutory construction that we construe statutes as they
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were intended to be construed at the time they were passed. O’Casek v. Children’s Home & Aid
Society of Illinois, 229 Ill. 2d 421, 441 (2008). At the time when the General Assembly first
enacted the cost-shifting provision in section 3-602, it also provided not only for the shifting of
attorney fees and costs but also for the licensee to “pay 3 times the actual damages, or $500,
whichever is greater.” Pub. Act 81-223, § 3-602 (eff. Mar. 1, 1980). This indicates to the court
that the legislature was concerned that actual damages in cases involving violations of the
Nursing Home Care Act would often be too low to eliminate the financial disincentives that
residents would otherwise have to engage in the litigation to privately enforce the Nursing Home
Care Act that the legislature was seeking to encourage. This in turn leads us to believe that, when
the General Assembly provided that a licensee shall pay a resident’s “costs,” it was using this
term in the broader sense of what are commonly understood as “litigation costs.” Construing the
legislative intent to include only the payment of a resident’s “court costs” would do far less to
reduce a nursing home resident’s financial disincentives to engage in litigation to enforce their
rights and to discourage nursing homes from violating the rights of residents. Even though the
General Assembly eventually repealed the provisions in section 3-602 for treble damages and a
minimum recovery of $500 (see Pub. Act 89-197, § 90 (eff. July 21, 1995)), it did not amend the
provision for costs, and nothing about this amendment affects our interpretation of what the
General Assembly meant by the term “costs” when it passed the statute. See O’Casek, 229 Ill. 2d
at 441 (legislative intent that controls is the intent of the legislature that passed the statute, not
the intent of the legislature that amends it).
¶ 158 For these reasons, we conclude that the trial court did not abuse its discretion in its award of
costs to the plaintiffs.
¶ 159 III. CONCLUSION
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¶ 160 The judgment of the trial court ordering defendant Clare Oaks to pay the plaintiffs’ attorney
fees is reversed, to the extent that the assessment of attorney fees to be paid by Clare Oaks
includes within it an amount equal to one-third of the amount of damages awarded by the jury to
Trendel’s next of kin for those elements of damages under the Wrongful Death Act (740 ILCS
180/0.01 et seq. (West 2016)). This cause is remanded to the trial court for a redetermination of
the attorney fees to be paid by Clare Oaks, consistent with this decision. In all other respects, the
judgment of the trial court is affirmed.
¶ 161 Affirmed in part and reversed in part.
¶ 162 Cause remanded.
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No. 1-18-0835
Cite as: Grauer v. Oaks, 2019 IL App (1st) 180835
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-L-2472;
the Hon. Thomas V. Lyons II, Judge, presiding.
Attorneys Karen Kies DeGrand and Meagan P. VanderWeele, of Donohue
for Brown Mathewson & Smyth LLC, Matthew R. Henderson and
Appellant: 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.
Attorneys Michael W. Rathsack, Susan L. Novosad, Steven M. Levin,
for Margaret P. Battersby Black, and Daniel D. Goldfaden, all of
Appellee: Chicago, for appellees.
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