Longnecker v. Loyola University Medical Center ( 2008 )

FIRST DIVISION
June 25, 2008
No. 1-06-1536
CONNIE LONGNECKER, Individually and as ) Appeal from the
Special Administrator of the Estate of ) Circuit Court of
CARL LONGNECKER, Deceased, ) Cook County.
)
Plaintiff-Appellant, )
)
v. ) No. 02 L 007989
)
LOYOLA UNIVERSITY MEDICAL CENTER, and )
SIRISH PARVATHANENI, M.D., ) The Honorable
) Irwin J. Solganick,
Defendants-Appellees. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
Connie Longnecker, individually and as special administrator
of the estate of her husband Carl Longnecker, filed suit against
Dr. Sirish Parvathaneni and Loyola Medical Center, after Mr.
Longnecker died following an unsuccessful heart transplant.
During the procedure, Mr. Longnecker received a diseased
"hypertrophic heart." He died four days later, never regaining
consciousness.
Dr. Parvathaneni acted as the "procuring" or "harvesting"
surgeon during the transplant. At trial, the plaintiff presented
two theories of liability: (1) Dr. Parvathaneni, as an agent of
No. 1-06-1536
Loyola, committed professional negligence where he failed to
properly test and visually inspect the donor heart, and failed to
diagnose it as having significant left ventricular hypertrophy
and coronary artery disease; and, (2) Loyola committed
institutional negligence by failing to ensure that Dr.
Parvathaneni understood his role as a procuring surgeon. The
jury found in favor of Dr. Parvathaneni and Loyola on the
professional negligence claim. The jury found against Loyola on
the institutional negligence claim and awarded the plaintiff $2.7
million.
Loyola filed a posttrial motion in which it argued it was
entitled to judgment notwithstanding the verdict (judgment
n.o.v.), or, in the alternative, a new trial, because (1) the
plaintiff failed to plead institutional negligence, (2) the
plaintiff failed to produce expert testimony to support
institutional negligence, (3) the plaintiff failed to establish
breach, (4) the plaintiff failed to establish causation, and (5)
the verdicts were inconsistent. The circuit court found the
verdict in favor of Dr. Parvathaneni to be irreconcilable with
the verdict against Loyola, reasoning if Dr. Parvathaneni had not
been negligent, Loyola's failure to ensure he understood his role
could not have been the proximate cause of Mr. Longnecker's
death. Therefore, the court decided the verdicts were
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inconsistent. The court vacated the verdict against Loyola and
entered judgment for Loyola.
The plaintiff contends on appeal that the jury's verdicts
are not inconsistent. She alternatively argues that if the
verdicts are inconsistent, the proper remedy is to order a new
trial on both causes of action.
Dr. Parvathaneni agrees the verdicts are not inconsistent.
In his brief, he points to the "wholly separate theories of
liability against Loyola as principal of Dr. Parvathaneni and
[liability against] Loyola for institutional negligence," to
which two separate standards of care apply.
Loyola's brief intimates that we need not determine whether
the verdicts are inconsistent if the circuit court's grant of
judgment n.o.v. is proper for other reasons. Loyola focuses on
the circuit court's finding that proximate cause was precluded
based on the verdict in favor of Dr. Parvathaneni to contend the
judgment n.o.v. was proper. Loyola also argues the judgment
n.o.v. was proper because the plaintiff failed to establish the
element of breach, and because the institutional negligence claim
was barred by the statute of limitations. In the alternative,
Loyola argues the circuit court correctly found the verdicts to
be inconsistent. Loyola concedes that if the verdicts are
inconsistent, the proper remedy is to order a new trial on both
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No. 1-06-1536
claims.
For the reasons that follow, we hold the verdicts in this
case are not inconsistent, and that no other basis supports the
grant of judgment n.o.v. We therefore reverse the decision of
the circuit court of Cook County, and remand for further
proceedings.
BACKGROUND
Carl Longnecker suffered from numerous coronary ailments,
and, by age 58, had suffered three heart attacks.
In 2000, Mr. Longnecker became a patient of Dr. George
Mullen, a cardiologist at Loyola. Dr. Mullen told Mr. Longnecker
he needed a heart transplant, and placed his name on a donation
waiting list.
By 2001, Mr. Longnecker's condition worsened. His "status"
on the donation waiting list went from "2 class" to "1B class,"
moving his name up the list. His chance of surviving one year
without a transplant was 30%.
On June 11, 2001, Mr. Longnecker was informed a potential
donor heart had been located. He went to Loyola and was prepared
for surgery.
A. Loyola Heart Transplantation Procedures
Loyola uses a team approach to heart transplantations. The
Loyola transplant team consists of a nurse coordinator and three
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doctors: the transplant cardiologist, the procuring surgeon, and
the transplant surgeon.
The Regional Organ Bank of Illinois (ROBI) also plays a role
in Loyola's heart transplantations. When a potential donor is
declared brain dead, ROBI gathers information about the donor,
including gender, age, and weight, the cause of death, and
whether the donor smoked, drank alcohol, or used narcotics. ROBI
may also order diagnostic tests of the donor's heart. ROBI then
passes any relevant information to Loyola's nurse coordinator,
who briefs the transplant cardiologist.
The transplant cardiologist first makes an evaluation, based
on the donor's history and the results of any tests, to
preliminarily accept or decline the heart. If the heart is
preliminarily accepted, the procuring surgeon goes to the donor
hospital, where he or she opens the donor's sternum and visually
inspects the heart and feels it for defects. Next, the procuring
surgeon makes the "final phone call" where he or she reports the
findings to the transplant surgeon, who decides whether to accept
or reject the heart. If the heart is accepted, the procuring
surgeon "cross-clamps" the donor heart, cutting off the blood
supply, and flushes it with a preservative solution. The heart
is transported to Loyola, where the transplant surgeon, who has
removed the patient's "native" heart, transplants the donor
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No. 1-06-1536
heart.
Time is of the essence in heart transplantations. A
preserved heart can remain viable for approximately four hours
after being removed from the donor's body. Thus, the removal of
the donor heart and its transport to the recipient hospital must
be carefully coordinated with the removal of the recipient's
native heart.
B. The Heart Transplantation in this Case
In this case, the nurse coordinator was Penny Pearson. Dr.
Mullen was the transplant cardiologist. The defendant, Dr.
Parvathaneni, was the procuring surgeon, and Dr. Foy, the
surgical director of the Loyola transplant team, was the
transplant surgeon.
The donor was a 46-year-old male who was declared brain dead
at Good Samaritan Hospital. The donor's family informed ROBI he
smoked cigarettes and marijuana and drank alcohol regularly, and
that he may have used cocaine. The family also revealed the
donor was diagnosed with hypertension (high blood pressure) in
September 2000. He was "noncompliant" with treatment, meaning he
did not take medication regularly.
Based on the donor's history, ROBI ordered diagnostic tests,
including an echocardiogram, the "gold standard" test for left
ventricle hypertrophy (the enlargement of the heart wall), and an
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No. 1-06-1536
angiogram, the "gold standard" test for coronary artery disease
(plaque in the arteries). The donor's level of troponin, a
substance that may be indicative of damaged heart muscle, was
also measured.
The echocardiogram revealed the donor's left ventricle
measured 1.2 centimeters, meaning he suffered from "mild" left
ventricle hypertrophy. The angiogram revealed "mild" coronary
artery disease. The donor's troponin level was elevated.
ROBI contacted Pearson with the above information. Pearson
then contacted Dr. Mullen, who, after evaluating the
echocardiogram and angiogram, and after discussing the matter
with Dr. Foy, preliminarily accepted the heart. Dr. Parvathaneni
then went to Good Samaritan in order to "visualize" the heart,
that is, to inspect it for congenital abnormalities and to
confirm the findings of the echocardiogram and angiogram. Dr.
Parvathaneni did not have any concerns about plaque or
hypertrophy in the heart. Dr. Parvathaneni called Dr. Foy and
told him the heart "look[ed] good" and was "suitable for
transplantation" from a surgical aspect. Dr. Foy accepted the
heart.
At 7:10 a.m., Dr. Parvathaneni cross-clamped the donor's
heart, and removed it at 7:30 a.m. By 7:40 a.m., the heart was
in route to Loyola, where it arrived at 8:10 a.m.
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No. 1-06-1536
At 7:48 a.m., while the donor heart was on its way to
Loyola, Dr. Foy placed Mr. Longnecker on a bypass machine. At
8:28 a.m., Mr. Longnecker's native heart was cross-clamped and
removed. When Dr. Foy removed the donor heart from its
container, he immediately saw and determined by touch that it
suffered from left ventricular hypertrophy and coronary artery
disease. Dr. Foy wrote "Hypertrophic heart!" in his operative
note because the amount of hypertrophy was more than he expected
based on the results of the echocardiogram. Nevertheless, Dr.
Foy determined the heart was suitable for transplant, and
transplanted it. The heart, however, never functioned, and, on
June 15, 2001, Mr. Longnecker died. Had Mr. Longnecker survived,
his name would have been placed back on the heart donation
waiting list.
An autopsy revealed the donor heart weighed 492 grams,
whereas a normal heart weighs 300 grams. The heart's left
ventricle measured two centimeters in thickness, indicating
"severe" hypertrophy. The heart also exhibited "moderate to
severe" coronary artery disease. The cause of death was
determined to be acute myocardial infarction, with left ventricle
hypertrophy being an indirect contributing cause.
C. Litigation
On June 24, 2002, the plaintiff filed a three-count
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No. 1-06-1536
complaint against Loyola and Dr. Parvathaneni, alleging medical
negligence and wrongful death, and seeking recovery under the
Family Expense Act (750 ILCS 65/15 (West 2002)). The plaintiff
alleged that Loyola, by and through its agent, Dr. Parvathaneni:
"a. Failed to perform appropriate
testing of the donor heart;
b. Failed to perform appropriate visual
inspections of the donor heart;
c. Fail[ed] to diagnose significant
left ventricle hypertrophy in the donor heart
prior to transplantation;
d. Fail[ed] to diagnose significant
coronary artery disease in the donor heart
prior to transplantation; [and]
e. Otherwise deviated from the standard
of care."
On June 10, 2003, the plaintiff filed an amended complaint
in which she named as additional defendants others involved in
the transplantation. Prior to trial, the additional defendants
were either granted summary judgment or voluntarily dismissed
from the case. The allegations against Loyola and Dr.
Parvathaneni were the same in both complaints. Neither complaint
expressly based Loyola's liability on institutional negligence.
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No. 1-06-1536
On November 29, 2005, one day prior to trial, Loyola filed a
motion in limine seeking to bar the plaintiff from presenting
evidence of Loyola's institutional negligence because (1) the
plaintiff's complaint did not allege institutional negligence,
(2) any institutional negligence claim would be time barred, and
(3) the plaintiff's expert, Dr. James Avery, lacked the
appropriate foundation for his testimony regarding institutional
negligence. The circuit court denied the motion.
On November 30, 2005, the trial commenced. Dr. Foy
testified that he trained Dr. Parvathaneni, who had been a
cardiac fellow at Loyola, to procure hearts for transplantation.
Dr. Foy was "quite satisfied" that Dr. Parvathaneni both knew and
understood his responsibilities in terms of procuring hearts.
Thus, Dr. Parvathaneni remained on Loyola's staff after his
fellowship completed.
Because Loyola used a team approach to organ procurement,
each team member was required to know his or her role and perform
that role. According to Dr. Foy, in Loyola's system, the
procuring surgeon evaluates the donor heart and is involved in
making decisions regarding its suitability for transplant; the
procuring surgeon does more than simply remove the heart from the
donor's body. The procuring surgeon is responsible for (1)
gathering and reviewing all of the available information about
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No. 1-06-1536
the donor, (2) reviewing any echocardiograms and angiograms, (3)
visually inspecting the heart for trauma or abnormalities and
confirming or denying any abnormalities noted on the
echocardiogram or angiogram, and (4) feeling the heart. Dr. Foy
did not specify whether the procuring surgeon is required to feel
the heart prior to cross-clamp, or whether the examination need
be performed after removal. Dr. Foy's "final decision" to accept
or reject the heart is based in large part on the procuring
surgeon's findings.
In this case, by the time Dr. Foy removed the donor heart
from its container, he had already removed Mr. Longnecker's
native heart. From the moment Dr. Foy held the donor heart, he
knew it had "significant" hypertrophy. Dr. Foy, however, decided
to proceed with the transplant. Although Dr. Foy's deposition
testimony indicated that "at the time *** the donor heart[] is
brought on to the operative field the die is cast, you have no
choice but to implant that heart," he testified at trial that he
had the option of using "a Jarvick type, total artificial heart."
Dr. Parvathaneni, who is triple board certified in general
surgery, critical care, and cardiothoracic surgery, testified
that when he arrived at Good Samaritan to procure the heart, he
knew Drs. Foy and Mullen had already reviewed the results of the
echocardiogram and angiogram, and that Dr. Mullen had "evaluated
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No. 1-06-1536
[the] heart and cleared it for transplant." Dr. Parvathaneni
testified he also reviewed the echocardiogram and angiogram as
part of his duties.
Dr. Parvathaneni distinguished between two potential roles
of a Loyola transplantation team member: evaluating a heart for
transplant and examining a heart to be transplanted. He
testified it was his duty as the procuring surgeon to examine a
heart to be transplanted, not to evaluate a heart for transplant.
He did not consider himself capable of evaluating a heart for
transplant.
According to Dr. Parvathaneni, Loyola's standard practice
required procuring surgeons to visually examine the heart and
manually assess it for hypertrophy and coronary artery disease
before removing the organ. Pursuant to this practice, Dr.
Parvathaneni visually inspected the heart while it remained in
the donor's chest and felt it for plaque and hypertrophy. He
could not recall whether he could feel more hypertrophy or plaque
in the heart then indicated in the echocardiogram or angiogram
when he placed it in its container.
Dr. Parvathaneni acknowledged that hypertrophy can most
easily be felt after the heart is removed. However, Dr.
Parvathaneni testified he was not trained to manually inspect the
heart after removal. Rather, he was trained "to bring the organ
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No. 1-06-1536
as fast as [he] could." Dr. Parvathaneni explained, "Once we are
told to take the heart, we take the heart, bag it up and send it.
Time is of the essence, and they're expecting the organ [at
Loyola]."
Dr. Mullen, the transplant cardiologist, testified he was
aware the donor was 46 years old and had a history of
uncontrolled hypertension. He was also aware the donor suffered
from "mild" hypertrophy and "mild" coronary artery disease. In
his opinion, it was proper to accept a heart with these
conditions. Dr. Mullen took "full responsibility" for accepting
the donor heart in this case.
Dr. Avery, a cardiovascular surgeon from the California
Pacific Medical Center, gave expert testimony on behalf of the
plaintiff. Prior to testifying, Dr. Avery reviewed depositions
from Drs. Foy, Mullen, and Parvathaneni, which served as the
bases for his opinions.
In Dr. Avery's opinion, the standard of care required Dr.
Parvathaneni to review the patient's medical and social history,
the echocardiogram and angiogram, to see and feel how the heart
worked in the donor's chest, and to come to a conclusion
regarding whether to accept the heart. Dr. Parvathaneni's
deposition testimony, however, indicated he did not believe he
was required to evaluate the heart at all; rather, he was sent to
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No. 1-06-1536
Good Samaritan "to get the heart and bring it back." Dr.
Parvathaneni's deposition testimony was in conflict with
deposition testimony given by Drs. Foy and Mullen that described
Dr. Parvathaneni's role as "enormous" in the evaluation of the
heart.
According to Dr. Avery, Dr. Parvathaneni deviated from the
standard of care by being unaware of "significant historical
items" related to the donor, including his history of
uncontrolled hypertension, history of cigarette smoking, and
potential cocaine use. Dr. Parvathaneni also deviated from the
standard of care by failing to perform a physical examination of
the donor heart after the heart was removed. If Dr. Parvathaneni
had done so, he would have found what Dr. Foy later found: "a
thick heart of significant hypertrophy and considerable plaque in
the coronaries."
Dr. Avery additionally testified the standard of care
required Dr. Parvathaneni to understand his role in the
transplant as viewed by the other team members. However, Dr.
Parvathaneni's deposition testimony indicated he failed to
understand his role, in deviation of the standard of care.
Regarding Loyola, Dr. Avery testified:
"Q. And in regards to the Loyola
transplant team did the standard of care
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No. 1-06-1536
require that they--did they have any
responsibility under the standard of care to
make sure that Dr. Parvathaneni understood
his role if they were going to send him to
get a heart?
A. Yes.
Q. And did Loyola deviate from the
standard of care in that regard?
MR. PATTERSON [Counsel for Loyola]:
Objection your Honor, motion in limine.
THE COURT: Overruled.
A. [Dr. Avery]: In this regard I
believe they did.
Q. In what manner?
A. Well, basically everybody needs to
be on the same page in terms of what each
team member's role is in the team."
In Dr. Avery's opinion, had Dr. Parvathaneni fulfilled his
responsibilities pursuant to the standard of care, and had Loyola
fulfilled its responsibilities in ensuring Dr. Parvathaneni knew
his role, the heart would not have been transplanted.
Dr. Robert Higgins, the chairman of cardiovascular and
thoracic surgery and the director of the Heart Transplant and
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No. 1-06-1536
Mechanical Assist Device Program at Rush University Medical
Center, testified as an expert on behalf of Loyola. Dr.
Higgins's opinion, to a reasonable degree of scientific
certainty, was that the donor heart was suitable for
transplantation. The echocardiogram showed only mild
hypertrophy, the angiogram showed only mild coronary artery
disease, and the donor's possible cocaine use was not a factor in
the donor's death. The heart was also visually suitable for
transplantation. Dr. Higgins, however, testified he would not
transplant a heart with two-centimeter hypertrophy and severe
coronary artery disease.
Dr. Alfred Carl Nicolosi testified as an expert on behalf of
Dr. Parvathaneni. According to Dr. Nicolosi, Dr. Parvathaneni
complied with the standard of care in his role as a procuring
surgeon because he reviewed the echocardiogram and the angiogram,
and conducted a visual inspection and physical examination of the
heart. According to Dr. Nicolosi, the donor heart was acceptable
for transplant, and none of Dr. Parvathaneni's actions caused Mr.
Longnecker's death. According to Dr. Nicolosi, the left
ventricle of the donor heart measured two centimeters at the
autopsy because of swelling, not because of hypertrophy.
At the jury instruction conference, Loyola unsuccessfully
objected to instructions on Loyola's institutional negligence.
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No. 1-06-1536
The jury was instructed, in part:
"The plaintiff claims that Carl
Longnecker died and that defendants Dr.
Parvathaneni and Loyola *** were negligent in
one or more of the following respects: Failed
to properly evaluate the donor heart; failed
to perform an appropriate physical
examination of the donor heart; failed to
communicate significant problems with the
donor heart after physical examination; and
failed to reject the donor heart for
transplantation.
The plaintiff further claims that
defendant Loyola *** was negligent in one or
more of the following respects: Failed to
ensure that Dr. Parvathaneni understood his
role as a procuring surgeon.
Negligence by a hospital is the failure
to do something that a reasonably careful
hospital would do or the doing of something
that reasonably careful hospital would not do
under the circumstances similar to those
shown by the evidence.
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The law does not say how a reasonably
careful hospital would act under the
circumstances, that is for you to decide."
The jury was not instructed that it could return a verdict
in favor of Dr. Parvathaneni only if it also found in favor of
Loyola. In fact, the jury instructions allowed the jury to find
the way it did.
After initially indicating it could not reach a verdict, the
jury found for Dr. Parvathaneni and Loyola on the professional
negligence claim, and against Loyola on the institutional
negligence claim. The jury assessed $2.7 million in damages.
On Loyola's motion for judgment n.o.v., the circuit court
found the verdicts inconsistent, and vacated the verdict against
Loyola. The circuit court stated:
"If the institutional negligence in this
case is based specifically on the conduct of
Dr. Parvathaneni in that he did not
understand what his role was and was not--and
that Loyola did not make sure he understood
his role, well, if the jury found that he
wasn't negligent, then, you know, there was
nothing wrong with what he did and whether he
personally did not understand his role or
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No. 1-06-1536
whether Loyola didn't see that he understood
his role doesn't matter. He didn't do
anything that caused harm to [Mr.
Longnecker].
If his actions were not a proximate
cause of injury to Mr. Longnecker, even if he
was negligent, then if anything that he did
didn't cause Mr. Longnecker's death, then,
you know, the failure by Loyola to see that
he understood what he was doing or knew what
he was doing doesn't really matter. Nothing
he did was the cause of the injury to Mr.
Longnecker. So they really are
inconsistent."
The court entered judgment in favor of both defendants.
This timely appeal followed.
ANALYSIS
In medical negligence cases, a hospital may face liability
under two separate and distinct theories: (1) vicarious liability
for the medical negligence of its agents or employees; and (2)
liability for its own institutional negligence. Darling v.
Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211
N.E.2d 253 (1965), cert. denied, 383 U.S. 946, 16 L. Ed. 2d 209,
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No. 1-06-1536
86 S. Ct. 1204 (1966).
In a professional negligence case, the standard of care
requires the defendant to act with "the same degree of knowledge,
skill and ability as an ordinarily careful professional would
exercise under similar circumstances." Advincula v. United Blood
Services, 176 Ill. 2d 1, 23, 678 N.E.2d 1009 (1996). Generally,
"expert testimony is necessary in professional negligence cases
to establish the standard of care." Snelson v. Kamm, 204 Ill. 2d
1, 43-44, 787 N.E.2d 796 (2003). "[E]xpert testimony is needed
*** because jurors are not skilled in the practice of medicine
and would find it difficult without the help of medical evidence
to determine any lack of necessary scientific skill on the part
of the physician." Walski v. Tiesenga, 72 Ill. 2d 249, 256, 381
N.E.2d 279 (1978).
Institutional negligence involves an analogous standard of
care; a defendant hospital is judged against what a reasonably
careful hospital would do under the same circumstances. Illinois
Pattern Jury Instructions, Civil, No. 105.03.01 (1995). See
generally Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278,
294-99, 730 N.E.2d 1119 (2000). Under this theory of liability,
however, "the standard of care *** may be shown by a wide variety
of evidence, including, but not limited to, expert testimony,
hospital bylaws, statutes, accreditation standards, custom and
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No. 1-06-1536
community practice." Jones, 191 Ill. 2d at 298. "[T]he
institutional negligence of hospitals can also be determined
without expert testimony in some cases." Jones, 191 2d at 296.
The concept of proximate cause is the same under
professional and institutional negligence. However, consistent
with the help lay jurors need "to determine any lack of necessary
scientific skill on the part of the physician" (Walski, 72 Ill.
2d at 56), "[t]he proximate cause element of a medical
malpractice case must be established by expert testimony to a
reasonable degree of medical certainty." (Emphasis added.)
Krivanec v. Abramowitz, 366 Ill. App. 3d 350, 356-57, 851 N.E.2d
849 (2006). We are aware of no authority that imposes a similar
rule that proximate cause be established to a reasonable degree
of medical certainty in an institutional negligence case.
However, an institutional negligence case may present where
professional and institutional standards of care are so
intertwined that proximate cause is required to be shown to a
reasonable degree of medical certainty. The case before us is
not such a case. Nor does Loyola contend otherwise.
In this case, the jury rejected the plaintiff's contention
that Dr. Parvathaneni (and, vicariously, Loyola) was
professionally negligent. The plaintiff does not challenge this
finding on appeal. The jury accepted the plaintiff's contention
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No. 1-06-1536
that Loyola was institutionally negligent. The circuit court,
however, concluded the jury's findings were inconsistent, granted
Loyola's motion for judgment n.o.v., and vacated the verdict.
The plaintiff challenges this ruling.
A motion for judgment n.o.v. should be entered "only in
those cases in which all of the evidence, when viewed in its
aspect most favorable to the opponent, so overwhelmingly favors
movant that no contrary verdict based on that evidence could ever
stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
510, 229 N.E.2d 504 (1967). Our standard of review is de novo.
York v. Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d
147, 178, 854 N.E.2d 635 (2006).
I. Institutional Negligence
In support of affirming the trial court's decision, Loyola
puts forth three arguments: (1) the jury should not have
considered the institutional negligence claim because the claim
was time barred; (2) judgment n.o.v. was proper because the
plaintiff failed to establish breach; and, (3) judgment n.o.v.
was proper because the plaintiff failed to establish proximate
cause.
Before addressing the merits of Loyola's contentions, we
address the plaintiff's assertion that Loyola has waived the
first two contentions, if not also the third, because it failed
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No. 1-06-1536
to obtain a conditional ruling in the circuit court in violation
of section 2-1202(f) of the Code of Civil Procedure, which
requires the circuit court to "rule conditionally on the other
relief sought [in a posttrial motion]." 735 ILCS 5/2-1202(f)
(West 2006). Loyola's posttrial motion, which raised the issues
of timeliness, breach, and proximate cause, did not seek other
forms of relief. Rather, Loyola's posttrial motion set forth
alternative bases for the same relief--judgment n.o.v.
Consequently, Loyola's alternative bases for upholding the
judgment n.o.v. are not waived. Varady v. Guardian Co., 153 Ill.
App. 3d 1062, 1070, 506 N.E.2d 708 (1987); Ralston v. Plogger,
132 Ill. App. 3d 90, 97, 476 N.E.2d 1378 (1985). We address each
in turn.
A. Time Barred
Loyola points out the plaintiff's original and amended
complaints did not specifically allege Loyola breached any
independent duty of care and, in its view, only alleged Loyola
was vicariously liable for Dr. Parvathaneni's alleged
malpractice. Loyola argues, "Even assuming that Plaintiff
attempted to amend her complaint at [a later date], any claim of
institutional negligence against Loyola would be time barred."
Loyola points out the statute of limitations for a medical
malpractice claim is two years (735 ILCS 5/13-212(a) (West
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No. 1-06-1536
2004)), and argues any institutional negligence claim would not
"relate back" to the original complaint under section 2-616(b) of
the Code of Civil Procedure (735 ILCS 5/2-616(b) (West 2004)).
Section 2-616(b) provides:
"The cause of action, cross claim or
defense set up in any amended pleading shall
not be barred by lapse of time under any
statute *** prescribing or limiting the time
within which an action may be brought or
right asserted, if the time prescribed or
limited had not expired when the original
pleading was filed, and if it shall appear
from the original and amended pleadings that
the cause of action asserted, or the defense
or cross claim interposed in the amended
pleading grew out of the same transaction or
occurrence set up in the original pleading
***." 735 ILCS 5/2-616(b) (West 2004).
Loyola mistakenly relies on section 2-616(b) and
institutional negligence cases addressing the relation-back
doctrine. See, e.g., Frigo v. Silver Cross Hospital & Medical
Center, 377 Ill. App. 3d 43, 62, 876 N.E.2d 697 (2007)
(plaintiff's negligent credentialing claim related back to her
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No. 1-06-1536
original pleading specifically alleging the hospital committed
negligence); Weidner v. Carle Foundation Hospital, 159 Ill. App.
3d 710, 713, 512 N.E.2d 824 (1987) (plaintiff's allegation that
the hospital breached its institutional duty of care did not
relate back to her original complaint alleging the hospital was
vicariously liable for the doctor's malpractice). The relation-
back provision of section 2-616(b), by its very terms, applies
only in cases where "cause[s] of action, cross claim[s] or
defense[s]" are raised beyond the limitations period in "any
amended pleading." 735 ILCS 5/2-616(b) (West 2004); Porter v.
Decatur Memorial Hospital, 227 Ill. 2d 343, 882 N.E.2d 583(2008). In this case, the plaintiff did not raise any new claim
against Loyola in an amended pleading. Rather, the plaintiff's
original and amended complaints, both filed within the two-year
limitations period, contained the same allegations against
Loyola, and no other amended pleadings were filed. Simply
stated, the relation-back doctrine has no application in this
case.
What is relevant, however, is whether the plaintiff's timely
filed amended complaint contained sufficient facts to put Loyola
on notice that the plaintiff sought to hold it liable for
institutional negligence. The plaintiff's amended complaint
alleged Loyola and Dr. Parvathaneni failed to properly test,
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No. 1-06-1536
inspect, and diagnose the donor heart, and that both defendants
"[o]therwise deviated from the standard of care." Although the
amended complaint did not expressly assert an institutional
negligence claim against Loyola, Loyola was on notice of this
theory of liability long before the commencement of trial. In
her Supreme Court Rule 213 (210 Ill. 2d R. 213) response, the
plaintiff disclosed Dr. Avery's opinion on this very point.
"9. Defendant Loyola University Medical
Center, as an institution and through the
physicians practicing within the heart
transplant unit, had a duty to ensure that
each physician and participant in the heart
transplant team understood his or her role
and what was expected of him or her in the
assessment of the donor heart for transplant.
This was a deviation from the standard of
care on the part of Defendant Loyola
University Medical Center."
Loyola's motion in limine to bar Dr. Avery from testifying
about institutional negligence confirms that Loyola understood
that the plaintiff was proceeding under this separate theory of
liability.
We reject Loyola's contention that the plaintiff's
26
No. 1-06-1536
institutional negligence claim was time barred.
B. Breach of Duty
In an institutional negligence case, "[a] hospital owes a
duty to its patients to exercise reasonable care in light of
apparent risk." Andrews v. Northwestern Memorial Hospital, 184
Ill. App. 3d 486, 493, 540 N.E.2d 447 (1989), citing
Ohligschlager v. Proctor Community Hospital, 55 Ill. 2d 411, 303
N.E.2d 392 (1973). Here, the "apparent risk" was that a donor
heart with significant hypertrophy would be accepted for
transplantation. In order to avoid this risk, the plaintiff
asserts Loyola had a duty to ensure that each member of the heart
transplant team was fully aware of his role in evaluating the
donor heart for transplantation.1
According to the plaintiff, Dr. Parvathaneni should have
been informed that his role, as part of the transplant team,
included evaluating the heart for transplantation after
harvesting, not simply examining the heart while in the donor.
Had Dr. Parvathaneni evaluated the heart after harvesting, he
likely would have made the same observation Dr. Foy made after
1
Loyola makes no claim that the standard of care, itself,
was not established by the evidence in light of Dr. Foy's
testimony that the procuring surgeon is charged with evaluating
the donor heart for transplantation.
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No. 1-06-1536
first observing the donor heart, that it was a "Hypertrophic
heart!" Dr. Avery, the plaintiff's expert, explained that had
Dr. Parvathaneni evaluated the heart after it was removed he
would have found: "a thick heart of significant hypertrophy and
considerable plaque in the coronaries." Dr. Parvathaneni
testified that hypertrophy can most easily be felt after the
heart is removed; he, however, was not trained to manually
inspect the heart after removal. After removal, his role was "to
bring the organ as fast as [he] could" to Loyola. According to
Dr. Foy's deposition testimony, he was "surprised" by Dr.
Parvathaneni's description of his role because Dr. Parvathaneni
played a much greater role in evaluating the donor heart. In his
deposition, Dr. Mullen characterized Dr. Parvathaneni's role in
evaluating the donor heart as "enormous." As Dr. Avery
testified, Loyola owed a duty of reasonable care to Mr.
Longnecker to ensure that before his native heart was removed,
the donor heart was evaluated as acceptable for transplantation
by each member of the transplant team.
Against this record, Loyola makes three arguments to
challenge the jury's finding of breach of duty.
First, Loyola argues there is no evidence it knew or should
have known about Dr. Parvathaneni's noncompliance with transplant
procedures. Loyola cites Pickle, 106 Ill. App. 3d 734, 435
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No. 1-06-1536
N.E.2d 877, Reynolds v. Mennonite Hospital, 168 Ill. App. 3d 575,
522 N.E.2d 827 (1988), and Rohe v. Shivde, 203 Ill. App. 3d 181,
560 N.E.2d 1113 (1990) as support.
In Pickle, the plaintiff sued the doctor and the hospital,
alleging he suffered injuries as a result of electroconvulsive
therapy. The plaintiff specifically alleged the doctor
administered the therapy in a manner that did not comply with the
hospital's policies, and the hospital allowed the procedure to be
performed in violation of its policies. The circuit court
dismissed the complaint and we affirmed. We held the complaint
was properly dismissed because the plaintiff failed to allege the
hospital knew or should have known the doctor would violate its
policies. Our decision in Holton v. Resurrection Hospital, 88
Ill. App. 3d 655, 659, 410 N.E.2d 969 (1980), which held that a
hospital has a duty to use reasonable care to discern the medical
qualifications of those practicing within the hospital and that a
hospital breaches that duty where it allows a doctor to practice
where it knows or should know the doctor is unqualified, provided
the authority for our holding. We refused to "recognize the
existence of a duty on the part of the hospital's administration
to insure that each of its staff physicians will always perform
his duty of due care," because that would amount to requiring the
hospital to act as an insurer of a patient's safety. Pickle, 106
29
No. 1-06-1536
Ill. App. 3d at 739.
Similar claims were raised in Reynolds and Rohe. Rohe, 203
Ill. App. 3d at 200 (alleging the defendant hospital allowed a
pediatrician to practice where the pediatrician violated several
hospital policies); Reynolds, 168 Ill. App. 3d at 577 (alleging
the defendant hospitals failed to review and supervise the
doctors' work where the doctors misdiagnosed the plaintiffs and
performed unnecessary surgery). In both cases, we held the
hospitals were entitled to summary judgment because the
plaintiffs failed to allege the hospitals were aware of the
doctors' actions. Rohe, 203 Ill. App. 3d at 203; Reynolds, 168
Ill. App. 3d at 578-79.
Pickle, Reynolds, and Rohe do not control this case. Each
of the three cases involved a "rouge" doctor practicing medicine
in violation of the policies set forth by the hospital.
Unaddressed in those cases is the issue here--whether the
hospital adequately informed a doctor of his duties while working
as a member of a team of doctors. The allegation against Loyola
is not that Dr. Parvathaneni harvested hearts in violation of
Loyola's policies. Rather, the allegation is that Loyola never
informed Dr. Parvathaneni that his duty as a harvesting surgeon
encompassed "evaluating a heart for transplantation." The
plaintiff's claim of reasonable care owed by Loyola was not to
30
No. 1-06-1536
insure that each member of the heart transplant team will always
perform his duty of reasonable care to his patient; rather, the
plaintiff contends Loyola breached its duty to ensure Dr.
Parvathaneni knew his role as part of the heart transplant team
was not simply to examine but to evaluate the donor heart.
Second, Loyola argues the plaintiff "failed to proffer any
evidence that if Loyola had done something differently with
respect to the training or supervision of Dr. Parvathaneni, his
alleged noncompliance would have been discovered." Loyola's
contention, by linking Loyola's shortfall on "training or
supervision of Dr. Parvathaneni" to the discovery of the alleged
noncompliance, misses the point. As we have made clear above, it
is not the discovery of Dr. Parvathaneni's "alleged
noncompliance" with a Loyola policy that is at issue; rather, at
issue is Loyola's alleged failure to ensure Dr. Parvathaneni was
aware of its policy that the procuring surgeon had a role in
evaluating the heart for transplantation.
Finally, Loyola argues Dr. Avery's testimony was conclusory.
Dr. Avery testified Dr. Parvathaneni's deposition testimony
conflicted with that of Drs. Foy and Mullen regarding the role of
the procuring surgeon. According to Dr. Avery, Loyola breached
the standard of care because "everybody needs to be on the same
page in terms of what each team member's role is in the team."
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No. 1-06-1536
According to Loyola, "To sustain Plaintiff's burden, Dr. Avery
was required to explain specifically how Loyola allegedly
breached the applicable standard of care--to identify what Loyola
failed to do that a 'reasonably careful' hospital would have done
under similar circumstances to ensure that individual members of
the Transplant Team understood their respective roles." Loyola
again relies on Reynolds.
As discussed above, Reynolds affirmed summary judgment in
favor of the defendant hospitals because the plaintiffs failed to
establish the defendant hospitals knew or had reason to know of
the doctors' alleged malpractice. The court also addressed
whether testimony from the plaintiffs' expert was sufficient to
establish the hospitals' knowledge. We held it was not.
Although the expert opined that the hospitals should have known
of the doctors' improper diagnoses of thoracic outlet syndrome,
the plaintiffs failed to allege any facts "to substantiate that
opinion." Reynolds, 168 Ill. App. 3d at 579. Thus, in Reynolds,
the expert asserted a conclusion without factual support that the
hospital should have known of the doctors' noncompliance through
proper review.
Here, the facts underlying Dr. Avery's opinion go directly
to the claimed breach by Loyola of its duty of reasonable care
owed to Mr. Longnecker that each team member evaluate the heart
32
No. 1-06-1536
for transplantation. Dr. Parvathaneni testified he was not
trained to "evaluate" the donor heart for hypertrophy even though
such an evaluation could be quickly made based on Dr. Foy's
immediate observation after removing the donor heart from the
transport container that it was a "Hypertrophic heart!" Drs. Foy
and Mullen each provided deposition testimony that Dr.
Parvathaneni had an enormous role in evaluating the donor heart
for transplantation. This enormous role Dr. Parvathaneni was
expected to play in evaluating the donor heart for
transplantation is confirmed by Dr. Foy's decision to remove Mr.
Longnecker's heart before he personally viewed the donor heart.
Dr. Avery's opinion that Loyola breached the standard care
by failing to ensure that each member of the transplant team
evaluated the donor heart had sufficient factual support in the
record to establish that Loyola breached its duty of care to Mr.
Longnecker.
C. Proximate Cause
Loyola next argues the plaintiff failed to establish
proximate cause. Loyola argues "there was no evidence that if
Loyola had done something differently with respect to the
training or supervision of Dr. Parvathaneni, then Dr.
Parvathaneni and Dr. Foy would have rejected the donor heart for
transplantation in Mr. Longnecker." As authority for its "no
33
No. 1-06-1536
proximate cause" contention, Loyola relies on Snelson v. Kamm,
204 Ill. 2d 1, 787 N.E.2d 796 (2003), a case not involving a
claim of institutional negligence.
In Snelson, under Dr. Kamm's care, Snelson underwent a
"radiological procedure known as an aortogram or aroteriogram,
[performed by a radiologist practicing at the hospital,] to
determine the location of arterial blockages." Snelson, 204 Ill.
2d at 10. The procedure was terminated because of the difficulty
in inserting "the guide wire." Snelson, 204 Ill. 2d at 10. Dr.
Kamm, a general surgeon, was informed that the test was not
completed and that Snelson complained of back and abdominal pain
following the unsuccessful procedure. Snelson, 204 Ill. 2d at
11. After ameliorative treatments over the course of a day and a
half to address Mr. Snelson's severe abdominal pain were
exhausted, Dr. Kamm performed emergency exploratory surgery,
which revealed portions of the small and large bowel loops were
dead. At trial, the radiologist opined that the "unsuccessful
*** aortogram caused the death of portions of Snelson's
intestine[s]." Snelson, 204 Ill. 2d at 15.
The action against the hospital was based on Snelson's claim
that the attending nurses negligently failed to inform Dr. Kamm
that they had inserted a catheter before Dr. Kamm ordered one and
that Snelson was experiencing high levels of pain. This, Snelson
34
No. 1-06-1536
contended, affected the treatment he received from Dr. Kamm.
Snelson, 204 Ill. 2d at 13. After a verdict was returned against
Dr. Kamm and the hospital, the circuit court entered a judgment
n.o.v. for the hospital, finding no causal connection between the
alleged failures of the nurses and the medical treatment rendered
by Dr. Kamm. Snelson, 204 Ill. 2d at 13. The appellate court
affirmed. The supreme court granted leave to appeal.
The supreme court began its discussion of Snelson's claim
that the judgment n.o.v. was error with observations based on the
record evidence. "Snelson acknowledges that he presented no
expert testimony indicating that [the hospital's] conduct was a
proximate cause of his injury. He also acknowledges that Kamm
testified that no act or omission of the nursing staff affected
his course of treatment ***. Nevertheless, Snelson argues that a
question of fact as to proximate cause was sufficiently
established by the evidence." Snelson, 204 Ill. 2d at 42.
Here, Loyola does not assert, nor can it based on the record
before us, that the plaintiff acknowledges similar shortfalls in
the evidence. Snelson is thus factually distinguishable. We
nonetheless address Loyola's contention that under a Snelson-type
analysis, proximate cause was not shown here.
According to Loyola, as to Dr. Foy's decision to transplant
the donor heart, the record evidence supports but one conclusion:
35
No. 1-06-1536
"[E]ven though the donor heart had more hypertrophy than Dr. Foy
expected based on the echocardiogram, Dr. Foy decided that the
heart was acceptable for transplant in Mr. Longnecker." Thus,
Loyola argues, because the donor heart was found acceptable for
transplantation by Dr. Foy, there was no causal connection
between Dr. Parvathaneni's failure to evaluate the heart after
harvest and Dr. Foy's decision to transplant the donor heart.
It is true that Dr. Foy testified that he decided the heart
was suitable for transplant and that he had the alternative
option of using an artificial heart if he found the donor heart
unacceptable. Loyola ignores, however, that the jury also had
before it Dr. Foy's deposition testimony that once he removed Mr.
Longnecker's native heart, "the die is cast, [there is] no choice
but to implant [the donor] heart." The discovery by Dr. Foy that
the donor heart was hypertrophic was simply too late once the
donor heart was on the "operative field." The jury also heard
the testimony of Dr. Higgins, an expert called on behalf of
Loyola, that he would not transplant a heart with two-centimeter
hypertrophy and severe coronary artery disease. At the autopsy,
the donor heart measured two centimeters in thickness at the left
ventricle and exhibited "moderate to severe" coronary artery
disease.
This conflict in the evidence made it a jury question
36
No. 1-06-1536
whether the alleged breach of Loyola's institutional standard of
care proximately caused the death of Mr. Longnecker.
Our conclusion that proximate cause was a question of fact
for the jury is supported by the conclusion reached by the
supreme court in Jones on the issue of proximate cause in an
institutional negligence case. In Jones, in response to Chicago
HMO's argument that there was no causal connection between
Shawndale's claim and the failure of Chicago HMO to schedule a
needed appointment in which Shawndale's illness would have been
discovered, the court observed: "We can easily infer from this
record that Dr. Jordan's failure to see Shawndale resulted from
an inability to serve an overloaded patient population. A lay
juror can discern that a physician who has thousands more
patients than he should will not have time to service them all in
an appropriate manner." Jones, 191 Ill. 2d at 301. This
reasonable inference, along with additional evidence in the
record that Chicago HMO was soliciting more patients, the supreme
court concluded, presented a material question of fact to
overcome summary judgment "on Jones' claim of institutional
negligence for assigning too many patients to Dr. Jordan."
Jones, 191 Ill. 2d at 304.
Likewise here, the jury could have inferred that Dr. Foy
removed Mr. Longnecker's native heart, not because it was in
37
No. 1-06-1536
worse condition than the hypertrophic heart of the donor but
because he relied on Dr. Parvathaneni to have informed him if the
donor heart were hypertrophic, that is, to a greater degree than
indicated in the diagnostic tests of the donor. As the plaintiff
claims, had Loyola properly conveyed to Dr. Parvathenani that as
part of the transplant team his duties included evaluating the
donor heart after harvest, thus leading to the discovery of the
significant hypertrophy in the donor heart, "then Dr. Foy would
have rejected the donor heart for transplantation in Mr.
Longnecker." That the severity of hypertrophy in the donor
heart, detected by Dr. Foy immediately upon removing the heart
from the transport container, was a shock to Dr. Foy is revealed
by the exclamation notation of "Hypertrophic heart!" in his
operating notes. The jury was not required to believe Dr. Foy's
testimony in court that he found the heart acceptable for
transplantation over his deposition testimony that once he
removed Mr. Longnecker's native heart, he "had no choice but to
implant [the donor] heart." The jury was free to draw the
inference from the evidence that Dr. Foy would not have
"implant[ed] that heart" had he had a real choice, which a
properly trained Dr. Parvathenani would have given him.
Accordingly, there was a causal connection between Loyola's
failure to ensure that the entire transplant team was "on the
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No. 1-06-1536
same page" and Mr. Longnecker's death, caused by the
transplantation of a nonfunctioning heart.
Finally, the circuit court's conclusion that a verdict in
favor of Dr. Parvathaneni precluded a proximate cause showing as
to the institutional negligence claim, in the context of this
case, is, simply put, wrong. Our supreme court has expressly
stated: "Liability is predicated on the hospital's own
[institutional] negligence, not the negligence of the physician."
Jones, 191 Ill. 2d at 292. "[T]he tort of institutional
negligence 'does not encompass, whatsoever, a hospital's
responsibility for the conduct of its *** medical
professionals.' " Jones, 191 Ill. 2d at 298, quoting Advincula,
176 Ill. 2d at 31.
To hold Dr. Parvathaneni liable, the jury would have had to
conclude that he deviated from the professional standard of care
to which a procuring surgeon is held. The standard of care for
Loyola as to the institutional negligence claim required a
showing of what a reasonably careful hospital would do under the
circumstances of this case. If, in fact, as the circuit judge
concluded, before institutional negligence can be found,
professional negligence on the part of Dr. Parvathaneni must be
found, the claims of professional negligence and institutional
negligence would conflate into a single theory of vicarious
39
No. 1-06-1536
liability. Dr. Parvathaneni's commission of medical malpractice
would impose vicarious liability on Loyola, as principal to Dr.
Parvathaneni, and render the claim of institutional negligence
against Loyola pointless. The two claims, however, are
independent, as our supreme court has made clear. Because the
jury found in favor of Dr. Parvathaneni, it does not follow that
the jury was compelled to find in favor of Loyola on the
institutional negligence claim. See Collins v. Roseland
Community Hospital, 219 Ill. App. 3d 766, 775, 579 N.E.2d 1105(1991) (verdicts not inconsistent because care provided at
hospital involved health professionals "requiring differing
degrees of care and subject to differing standards of care").
Under the facts of this case no such outcome was required. The
jury was properly instructed that Loyola alone could be found
liable under the institutional negligence theory and the jury so
found.
The circuit judge, in concluding the verdict in favor Dr.
Parvathaneni and the verdict against Loyola could not stand, may
have been thinking of a case like Frigo, where the plaintiff
asserted a negligent credentialing claim in the context of
institutional negligence, involving a podiatrist, a nonemployee
of the hospital. Frigo, 377 Ill. App. 3d 43. If the plaintiff
successfully established a deviation of the standard of care of
40
No. 1-06-1536
the hospital resulting in wrongly extending credentials to the
podiatrist, then to establish proximate cause for the injury
inflicted on the plaintiff by the podiatrist on the independent
institutional claim, the plaintiff would also have to establish
that the podiatrist committed medical malpractice that gave rise
to the plaintiff's injuries. Frigo, 377 Ill. App. 3d at 74-75.
If the podiatrist did not commit medical negligence, there would
be no causal connection between the hospital's action in
negligently giving surgical privileges to the podiatrist and the
injuries the plaintiff suffered. Frigo, 377 Ill. App. 3d at 75.
Frigo, is much like Reynolds, the case upon which the
dissent so heavily relies. In each case, the plaintiff was
required to prove malpractice by the offending doctors. In
Frigo, the plaintiff had to prove the podiatrist committed
malpractice in order to succeed on her institutional negligence
claim against the hospital. In Reynolds, the plaintiffs were
required to prove not only that the surgeons "were negligent in
their diagnoses of these plaintiffs" but "that the hospitals
should have known, through proper review procedures, that the
surgeons were improperly diagnosing thoracic outlet syndrome."
Reynolds, 168 Ill. App. 3d at 579.
Here, the plaintiff's institutional claim was based on
Loyola's deviation from the standard of care, not on any claimed
41
No. 1-06-1536
deviation of the standard of care by Dr. Parvathaneni. In fact,
the jury found Dr. Parvathaneni did not commit medical
malpractice, a verdict supported by the evidence as the plaintiff
concedes. The focus of the plaintiff's institutional negligence
claim against Loyola is entirely on Loyola's training of Dr.
Parvathaneni, as the harvesting surgeon of the heart transplant
team. Even if "notice" under Reynolds were at the crux of the
plaintiff's claim, it is disingenuous for Loyola to suggest that
it did not have "notice" that Dr. Parvathaneni was not trained to
evaluate the donor heart after harvesting when Loyola itself
trained Dr. Parvathaneni in his role as the harvesting surgeon of
the transplant team. It is no more plausible that Loyola had no
such notice than that Loyola was unaware heart transplants were
taking place in its hospital. As we have made clear, the instant
case is like neither Reynolds nor Frigo.
The dissent intimates that Aguilera v. Mount Sinai Hospital
Medical Center, 293 Ill. App. 3d 967, 691 N.E.2d 1 (1997),
provides guidance on proximate cause in this case.2 We find no
2
We find no legal significance to the dissent's
observations that "there is no expert testimony of how long the
decedent could have lived; how long it would have taken to obtain
a new donor; or if the decedent was placed on a Jarvik-type
artificial heart, how long could the decedent live with the
42
No. 1-06-1536
factual similarities between Aguilera and the case before us.
There is a life and death difference between a claim based on a
delay in ordering a CT scan that would have revealed a brain
hemorrhage that might or might not be operable and a claim that
Loyola removed a functioning heart (albeit, one that gave Mr.
Longnecker a 30% chance of surviving one year) and replaced it
with a nonfunctioning heart resulting in Mr. Longnecker's death
four days later.
It was for the jury to determine whether there was
sufficient evidence of the breach of duty by Loyola and whether
there was a causal link between that breach and Mr. Longnecker's
death. Based on the record evidence and the reasonable
inferences that may be drawn therefore, we cannot say "no
artificial heart." (Slip op. at __.) Much like Dr. Foy's
decision to remove Mr. Longnecker's heart before discovering the
donor's hypertrophic heart, the dissent's unanswered questions
focus the analysis too late in the sequence of events. The
plaintiff's claim is that Mr. Longnecker's native heart should
never have been removed in the first instance when all Loyola had
to replace it with was a hypertrophic heart or other limited
measures that would not have returned Mr. Longnecker to the
position he was in before he was admitted to Loyola for a heart
transplant.
43
No. 1-06-1536
contrary verdict based on that evidence could ever stand."
Pedrick, 37 Ill. 2d at 510. Loyola was not entitled to judgment
n.o.v. on proximate cause.
II. Legally Inconsistent Verdicts
Dr. Parvathaneni contends the verdicts are not inconsistent
because different standards of care are involved in medical
negligence and institutional negligence. Collins, 219 Ill. App.
3d at 775, 579 N.E.2d 1105 (1991) (verdicts not inconsistent
because care provided at hospital involved health professionals
"requiring differing degrees of care and subject to differing
standards of care"). The plaintiff contends the verdicts are not
inconsistent because " 'the same element [was not] found to exist
and not to exist.' " Redmond v. Socha, 216 Ill. 2d 622, 649, 837
N.E.2d 883 (2005), quoting Black's Law Dictionary 1592 (8th ed.
2004). Loyola contends "[t]he verdict in favor of Dr.
Parvathaneni broke any possible causal link between Loyola's
conduct and Mr. Longnecker's injuries."
Loyola's argument is in effect the reasoning of the circuit
judge that the verdicts were irreconcilable because the verdict
in favor of Dr. Parvathaneni precluded a showing of proximate
cause in the claim against Loyola, which we have already
rejected. Loyola presents no additional argument that we need
address on its claim of inconsistent verdicts.
44
No. 1-06-1536
We also note that a holding of legally inconsistent
verdicts, under supreme court precedent, mandates that both
verdicts be vacated and a new trial ordered against Loyola and
Dr. Parvathaneni. Redmond, 216 Ill. 2d at 651 ("once a trial
court determines that jury verdicts are legally inconsistent,
whether to grant a new trial is not up to the trial court's
discretion. It is mandatory"). The jury found the plaintiff
failed to prove her case against Dr. Parvathaneni. The plaintiff
does not contest this verdict but agrees with Dr. Parvathaneni's
contention that "there was evidence from which the jury could
conclude that Parvathaneni was not negligent." Vacating the
jury's verdict in favor of Dr. Parvathaneni and remanding for a
new trial against him would be unjust in this case.
CONCLUSION
For the reasons stated above, the order of the circuit court
of Cook County is reversed and the matter is remanded for further
proceedings consistent with this opinion.
Reversed and remanded.
CAHILL, P.J., concurs.
R. GORDON, J., dissents.
45
No. 1-06-1536
JUSTICE ROBERT E. GORDON, dissenting:
I respectfully dissent from the majority opinion where they find that plaintiff proved an
institutional negligence case against Loyola University Medical Center (Loyola). I believe the
trial judge’s decision should be affirmed; however, I agree that the verdicts were not inconsistent.
Illinois has long recognized that a hospitals may be held liable for its own negligence. In
Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 333 (1965), our Illinois
Supreme Court acknowledged an independent duty of hospitals to assume responsibility for the
care of their patients. “Ordinarily, this duty is administrative or managerial in character.” Jones
v. Chicago HMO Ltd., of Illinois, 191 Ill. 2d 278, 291 (2000), citing Advincula v. United Blood
Services, 176 Ill. 2d 1, 28 (1996). To fulfill its duty, a hospital must act as a “reasonably careful
hospital” would under similar circumstances. Advincula, 176 Ill. 2d at 29. Liability is
predicated on the hospital’s own negligence, not the negligence of the physician. Jones, 191 Ill.
2d at 284. This independent negligence of the hospital is known as institutional negligence or
direct corporate negligence.
In a medical negligence case, a plaintiff must prove by a preponderance of the evidence
that: (1) the defendant owed a duty of care; (2) the defendant breached that duty; and (3) the
plaintiff’s resulting injury or death was proximately caused by the breach. Hooper v. County of
Cook, 366 Ill. App. 3d 1, 6 (2006). I find no evidence in the record of this case of either a breach
of duty or causation. Plaintiff’s expert, Dr. Avery, testified that Loyola breached its duty because
“basically everybody needs to be on the same page in terms of what each team member’s role is
in the team.” Dr. Avery’s testimony concerning the “same page” was based on the fact that Drs.
46
No. 1-06-1536
Foy and Mullen described the role of a procuring surgeon under the Loyola system differently
than Dr. Paravataneni did. Reynolds v. Mennonite Hospital, 168 Ill. App. 3d 575(1988) is instructive as to whether the evidence in this case could support a verdict against
Loyola for its claimed failure to instruct Dr. Paravathaneni about his role on the heart transplant
team. In Reynolds, plaintiffs alleged that the hospital was institutionally negligent because it
failed to implement or follow standards of review to ensure the competency of its surgeons to
diagnose thoracic outlet syndrome. Reynolds, 168 Ill. App. 3d at 578-79. The appellate court
affirmed the trial court’s entry of summary judgment for the hospital because there was no
evidence that would have placed the hospital on notice of any malpractice by the surgeons.
Reynolds, 168 Ill. App. 3d at 580. In Reynolds, the plaintiff’s expert opined that the hospital
should have known, through proper review procedure, that its surgeons were improperly
diagnosing thoracic outlet syndrome; but the trial court concluded that the plaintiff’s expert’s
testimony was insufficient because there were no facts to substantiate that opinion. Reynolds,
168 Ill. App. 3d at 579-80. See also Rohe v. Shivde, 203 Ill. App. 3d 181, 202 (1990) (plaintiff
presented no evidence that the hospital failed to review the performance of the attending
pediatrician as to her compliance with hospital policy in examining newborn infants).
In the case at bar, there was no evidence that Loyola knew or should have known if Dr.
Paravathaneni had ever deviated from Loyola’s institutional policies or did not understand his
role on the heart transplant team. Plaintiff’s expert needed to identify what Loyola failed to do
that a “reasonably careful” hospital would have done under similar circumstances. Advincula,
176 Ill. 2d at 29.
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However, even if plaintiff was able to show the second element, namely a breach of the
standard of care, there was no evidence of the third element, namely, a causal relationship
between an alleged breach of duty and the death at issue. “ ‘[I]n order to sustain the burden of
proof, a plaintiff’s expert must demonstrate within a reasonable degree of medical certainty that
the defendant’s breach in the standard of care is more probably than not the cause of the injury.’ ”
Bergman v. Kelsey, 375 Ill. App. 3d 612, 625 (2007), quoting Knauerhaze v. Nelson, 361 Ill.
App. 3d 538, 549 (2005).
Even if Dr. Paravathaneni had been properly advised of his role to evaluate the donor’s
heart for transplant purposes and advised Dr. Foy of his findings, there is no evidence that Dr.
Foy would not have used the donor’s heart. Plaintiff’s expert, Dr. Avery, testified that if Dr.
Paravathaneni had evaluated the donor heart after it was removed and before he made the “final
phone call” to Dr. Foy, he would have found what Dr. Foy later found: “a thick heart of
significant hypertrophy and considerable plaque in the coronaries.” Even though the donor heart
had more hypertrophy than Dr. Foy expected based on the echocardiogram, Dr. Foy knew this
and still decided that the heart was acceptable to transplant to the decedent. Dr. Foy rejected the
option of using an artificial heart instead.3 Dr. Foy made his decision based on the decedent’s
grave medical condition resulting from his failing heart.
The evidence in the record further indicates that after the heart was removed, Dr.
Paravathaneni found even more hypertrophy than he initially observed. The record contains no
3
If Dr. Foy found that the donor’s heart was not suitable,
he testified he could have placed the decedent on a Jarvik-type
artificial heart.
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medical testimony concerning the effect of those observations or their medical significance for
causation.
After Dr. Paravathaneni removed the donor heart and made the telephone call to the
hospital, Dr. Foy removed the decedent’s heart and placed the decedent on the heart machine. If
the donor’s heart was not used, there is no expert testimony of how long the decedent could have
lived; how long it would have taken to obtain a new donor; or if the decedent was placed on a
Jarvik-type artificial heart, how long the decedent could have lived with the artificial heart.
This was a complex medical malpractice case that required a medical basis for the
expert’s opinion that Loyola’s breach of duty was a cause of the decedent’s death; and it is not
found in this record.
Dr. Avery’s testimony concerning causation was limited to the following:
“Q. Was Mr. Longnecker’s death caused as a result of the
deviations from the standard of care that we talked about today?
A. I believe they are.”
There was no basis for that opinion; and as a result, the element of causation was lacking. “An
expert’s opinion is only as valid as the basis and reasons for the opinion.” Wilson v. Bell Fuels,
Inc., 214 Ill. App. 3d 868, 875 (1991), citing McCormick v. Maplehurst Winter Sports, Ltd., 166
Ill. App. 3d 93, 100 (1988). “A party must lay a foundation sufficient to establish the reliability
of the bases for the expert’s opinion.” Petraski v. Thedos, No. 1-06-2914, slip op. at 11 (Ill.
App. Ct. March 31, 2008), citing Turner v. Williams, 326 Ill. App. 3d 541, 552-53 (2001).
In Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 968 (1997),
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the plaintiff’s decedent was taken to the emergency room complaining of numbness on the right
side of his body. About six or seven hours later, a CT scan was taken, revealing a brain
hemorrhage. Aguilera, 293 Ill. App. 3d at 969. The patient died a few days later. Aguilera, 293
Ill. App. 3d at 969. Plaintiff presented two experts who testified that the emergency room
physician’s delay in taking the CT scan caused the decedent’s death. Aguilera, 293 Ill. App. 3d
at 969. It was the plaintiff’s theory that a diagnosis of the condition would have triggered
surgical intervention to prevent the decedent’s death. Aguilera, 293 Ill. App. 3d at 969-70.
However, on cross-examination, plaintiff’s experts admitted that they would defer to a
neurosurgeon as to whether surgery should have even been performed; yet the only
neurosurgeons testifying in the case stated that surgery would not have been appropriate.
Aguilera, 293 Ill. App. 3d at 969-70. This court held that the opinions offered by the plaintiff’s
experts lacked a sufficient factual basis and were therefore based on conjecture. Aguilera, 293
Ill. App. 3d at 975.
There just is not enough evidence in the record concerning breach of duty and causation
for this court to reverse the decision of the trial court. I would affirm.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_______________________________________________________________
CONNIE LONGNECKER, Individually and as Special Administrator
of the Estate of CARL LONGNECKER, Deceased,
Plaintiff-Appellant,
v.
LOYOLA UNIVERSITY MEDICAL CENTER, and
SIRISH PARVATHANENI, M.D.,
Defendants-Appellees.
_____________________________________________________________
No. 1-06-1536
Appellate Court of Illinois
First District, First Division
Filed: June 25, 2008
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
CAHILL, P.J., concurs.
R. GORDON, J., dissents.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Irwin J. Solganick , Judge Presiding
_________________________________________________________________
For PLAINTIFF - Michael W. Rathsack
APPELLANT Tom Leahy
Peter D. Hoste
111 West Washington Street, Suite 962
Chicago, Illinois 60602
For DEFENDANT - Krista R. Frick
APPELLEE, John M. Stalmack
Sirish Parvathaneni, M.D. Bollinger, Ruberry & Garvey
500 West Madison, Suite 2300
Chicago, Illinois 60661
For DEFENDANT - Thomas J. Burke, Jr.
APPELLEE, Ben Patterson
Loyola University Hall Prangle & Schoonveld, LLC
Medical Center 200 South Wacker Drive, Suite 3300
Chicago, Illinois 60606
Eugene A. Schoon
Sherry A. Knutson
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No. 1-06-1536
Sidley Austin, LLP
One South Dearborn Street
Chicago, Illinois 60603
52