Stanphill v. Ortberg ( 2018 )

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Appellate Court Date: 2018.02.22
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Stanphill v. Ortberg, 2017 IL App (2d) 161086Appellate Court ZACHARY STANPHILL, Administrator of the Estate of Keith
Caption Stanphill, Deceased, Plaintiff-Appellant, v. LORI ORTBERG,
Individually and as an Agent of Rockford Memorial Hospital, d/b/a
Rockford Memorial Health Systems; and ROCKFORD MEMORIAL
HOSPITAL, d/b/a Rockford Memorial Health Systems, Defendants-
Appellees.
District & No. Second District
Docket No. 2-16-1086
Filed October 31, 2017
Decision Under Appeal from the Circuit Court of Winnebago County, No. 14-L-35;
Review the Hon. J. Edward Prochaska, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on Lori A. Vanderlaan and James F. Best, of Best, Vanderlaan &
Appeal Harrington, of Naperville, for appellant.
Hugh C. Griffin, of Hall Prangle & Schoonveld, LLC, and Laura G.
Postilion, of Quintairos, Prieto, Wood & Boyer, P.A., both of
Chicago, for appellees.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices McLaren and Burke concurred in the judgment and opinion.
OPINION
¶1 The defendant, Lori Ortberg, performed a suicide screening of Keith Stanphill and
determined that Stanphill was not at imminent risk of harming himself. Nine days after that
screening, Keith killed himself. The plaintiff, Zachary Stanphill, Keith’s son and the
administrator of his estate, filed a wrongful death and survival action against Ortberg and her
employer, Rockford Memorial Hospital. Following a jury trial, the jury returned a general
verdict in the plaintiff’s favor and awarded almost $1.5 million in damages. The jury,
however, also answered in the negative a special interrogatory that asked whether Ortberg
could reasonably foresee that Keith would commit suicide nine days after his meeting with
her. The trial court entered judgment in favor of the defendants, based on the special
interrogatory answer. The plaintiff appeals, arguing that the jury’s answer to the special
interrogatory was not irreconcilable with the general verdict or, alternatively, that the special
interrogatory should never have been given. We reverse and remand with directions.
¶2 BACKGROUND
¶3 Between May 24 and June 2, 2016, the trial court conducted a jury trial on the plaintiff’s
complaint. The relevant portions of that trial are summarized below.
¶4 In the last month of his life, Keith’s physical and psychological condition deteriorated
substantially, based on his concerns that his wife, Susan, was having an extramarital affair.
At the time of his suicide, he and Susan were no longer sleeping in the same house. From late
August until September 30, 2005, he had lost nearly 15 pounds, he walked around in a
lethargic state, he was pale, and his eyes were sunken. He was slipping in his performance at
work as a car salesperson, and he had effectively withdrawn his participation in the church of
which he had been a lifelong member. Susan believed he needed help and arranged for him
to see a counselor through the Employee Assistance Program (EAP) at Rockford Memorial
Hospital, which was a benefit provided under her health insurance plan through the Rockford
School District.
¶5 On September 30, 2005, Keith met with Ortberg, a licensed clinical social worker who
was employed by Rockford Memorial Hospital. Ortberg’s responsibilities included assessing
whether her patients posed threats of imminent suicide or potentially lethal violence. Ortberg
had Keith complete a questionnaire as to his psychological condition. On that questionnaire,
Keith indicated that he had (1) feelings of harming himself or others most of the time;
(2) feelings of sadness most of the time; (3) sleep changes most of the time; (4) appetite
changes all of the time; (5) feelings of anxiety, nervousness, worry, and fear all of the time;
(6) sudden unexpected panic attacks most of the time; and (7) feelings of being on the verge
of losing control most of the time. Keith also indicated on the questionnaire that he was
seeing a primary care physician for “mood.”
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¶6 At trial, Ortberg testified that she had no specific recollections of Keith other than what
was reflected in her chart of his meeting with her. Her chart indicated that Keith denied
having ideas of suicide or a plan of how he would commit such an act. Her chart also
indicated that he had lost weight and was taking an anti-depressant. She was not able to
reconcile the conflict between Keith’s answers to the questionnaire, indicating that he had
thoughts of harming himself, and her conclusion in her chart that he did not have ideas of
suicide. Her chart did not indicate (1) how much weight Keith had lost over what period of
time, (2) what his eating or sleeping disturbances entailed, (3) any trouble he was having at
work, or (4) how he physically presented himself. Ortberg acknowledged that issues
involving sleep, appetite, work life, changes in mood, and changes in concentration or focus
were all signs of depression that could lead someone to being suicidal.
¶7 Ortberg diagnosed Keith with adjustment disorder with depressed mood and referred him
to a marriage counselor. Ortberg acknowledged that Keith’s answers to the self-assessment
questionnaire were indicators of depression. She further acknowledged that major depression
is much more severe than adjustment disorder with depressed mood and that there is a
correlation between major depression and suicide.
¶8 Ortberg testified that when she determines that a patient is suicidal, the standard of care
requires certain actions on her part. Specifically, she would (1) not let the patient leave her
office, (2) call a family member and have them pick up the patient and take them to an
emergency room and explain the situation, and (3) if a family member could not be
contacted, call 911 or the police and take whatever steps are necessary to get the patient to
the emergency room to be evaluated. Ortberg acknowledged that she took none of those steps
in Keith’s case.
¶9 On October 4, 2005, Susan called the EAP office to confirm that Keith had scheduled an
October 11 appointment with the marriage counselor whom Ortberg had recommended.
However, on October 9, 2005, Keith was found dead on the floor of his garage with his car
ignition on and the gas tank empty. He left a suicide note, attaching copies of romantic
e-mails between Susan and her coworker. An autopsy determined that Keith had died from
asphyxia resulting from acute carbon monoxide poisoning.
¶ 10 Keith’s estate filed a wrongful death action against Ortberg and Rockford Memorial
Hospital in 2007 and then refiled it on February 7, 2014. At trial, both parties called experts
in the area of social work and psychiatry to review the counseling that Ortberg had provided
Keith.
¶ 11 Daniel Potter, a licensed clinical social worker for 22 years, testified as an expert for the
plaintiff. He testified that Ortberg breached the standard of care by failing to recognize that
Keith was suicidal. Ortberg failed to do a proper mental health evaluation, lethality
assessment, and mental status exam. Potter testified that, had Ortberg performed a proper
mental health assessment, she would have recognized that Keith was suicidal—thus
triggering a duty to take immediate action. Potter further testified that Ortberg had breached
the standard of care by misdiagnosing Keith as having adjustment disorder, when in fact he
had major depression. Potter explained that there is a high correlation between major
depression and suicide. Potter believed that Ortberg’s misdiagnosis of adjustment disorder
was the reason she failed to recognize that Keith was suicidal.
¶ 12 Terri Lee, a licensed clinical social worker, testified as a defense expert. She stated that
Ortberg conducted a thorough assessment and complied with the standard of care for a
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reasonably careful licensed clinical social worker in her one-hour counseling session with
Keith. Lee believed that Keith was not suicidal on the day he met with Ortberg. This was
evident because he scheduled a follow-up date with the counselor whom Ortberg had
recommended. Lee testified that someone who is planning to kill himself does not make an
appointment for a future date.
¶ 13 Dr. David Bawden, the plaintiff’s expert psychiatrist, testified that he had been practicing
for 37 years and evaluated 10 to 20 people per day for suicidal risk. He worked in psychiatric
hospitals and had been called into emergency rooms to evaluate patients for suicidal risk and
involuntary admission. He had extensive training in what happens when there is a referral to
an emergency room, a psychiatrist, or a psychiatric facility and the evaluation that must be
conducted for involuntary admission.
¶ 14 Dr. Bawden testified that he agreed with Potter’s opinions concerning Ortberg’s failure to
recognize Keith as suicidal, her misdiagnosis of his level of depression, and her failure to
properly assess his mental health. Dr. Bawden testified that each of those failures,
individually, was a proximate cause of Keith’s death. He believed that Keith had a high risk
of suicide on September 30, 2005, and that, had he been referred to an emergency room or a
psychiatrist or a psychiatric facility, his suicide could have been prevented. He explained that
the vast majority of persons who are suicidal and treated, whether on voluntary or
involuntary admission, ultimately are released safely. He testified that Ortberg’s failure to
properly refer Keith to an emergency room or a psychiatrist was a cause of Keith’s death.
¶ 15 Dr. Steven Hanus, the defendants’ expert psychiatrist, testified that it was not reasonably
foreseeable to Ortberg on September 30, 2005, that Keith would kill himself on or before
October 9, 2005. He believed that Keith was not at imminent risk of harming himself because
(1) Ortberg specifically documented that Keith had no ideas of suicide, (2) he had not made a
suicide attempt before, (3) there was no family history of suicide, (4) the EAP documentation
demonstrated that Keith was working, (5) he was religious and receiving pastoral care, (6) he
was living with his in-laws, with whom he had a close relationship, (7) he was seeing his
children every day, (8) he was keeping up with his hygiene, (9) at the end of the EAP
session, he had agreed to outpatient therapy, and (10) he had actually scheduled a follow-up
appointment. Dr. Hanus believed that someone who was suicidal would not schedule a
follow-up counseling appointment for some future date. Dr. Hanus opined that, even if
Ortberg had referred Keith to a psychiatrist or an emergency room on September 30, 2005,
Keith’s suicide would not have been foreseeable to a psychiatrist or to hospital personnel on
that date, for the same reasons that Keith’s suicide was not foreseeable to Ortberg.
¶ 16 At a jury instruction conference, the defendants asked the court to submit a special
interrogatory to the jury regarding the foreseeability of Keith’s suicide. The interrogatory
read as follows:
“Was it reasonably foreseeable to Lori Ortberg on September 30, 2005 that Keith
Stanphill would commit suicide on or before October 9, 2005?”
The defendants drew the wording of the interrogatory from Garcia v. Seneca Nursing Home,
2011 IL App (1st) 103085. The plaintiff objected to the interrogatory, arguing that Keith’s
death was “not reasonably foreseeable under [the plaintiff’s] theory in the case to Lori
Ortberg because she didn’t do a full assessment, she didn’t do the right diagnosis, *** she
didn’t do the job [and] [s]he didn’t meet the standard.” As the jury could reasonably answer
the special interrogatory “no” based on a finding that Ortberg had breached the standard of
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care, the plaintiff maintained that the question did not test the general verdict and therefore
should not be given. The trial court overruled the objection and submitted the interrogatory to
the jury.
¶ 17 In closing arguments, the plaintiff encouraged the jury to vote “yes” on the special
interrogatory. The defendants encouraged the jury to answer the question “no.”
¶ 18 The jury returned a general verdict finding the defendants liable for negligence and
awarding the plaintiff $1,495,151. However, the jury also answered the special interrogatory
in the negative, finding that it was not reasonably foreseeable to Ortberg that Keith would
commit suicide within nine days of his meeting with her. Based upon the jury’s answer to the
special interrogatory, the trial court entered judgment in favor of the defendants.
¶ 19 The plaintiff filed a motion to reconsider the judgment on the special interrogatory and to
enter judgment on the general verdict. Following a hearing, the trial court denied the
plaintiff’s motion. The trial court explained that it was bound by the decision in Garcia,
which had entered judgment in favor of the defendant based on a similar special
interrogatory. The trial court, however, questioned the correctness of the decision in Garcia,
stating:
“I think Garcia was wrongly decided. I think Garcia is an anomaly. I don’t think
Garcia sets forth what the law of the State of Illinois is or should be with respect to
whether or not suicide is reasonably foreseeable. How in the world can a jury figure
out how to answer that question? [I]t says was it reasonably foreseeable to Lori
Ortberg, the defendant.
How can that not be ambiguous? I can’t imagine how that can’t be ambiguous.
Because Lori Ortberg was charged with several elements of negligence, one of which
was that she didn’t foresee the suicide. It was one of the things that the jury had to
consider in terms of whether she was negligent. It was the number one thing. The
whole trial was about whether or not she should have foreseen the suicide. It’s
throughout the record.
And—and so—and the jury found in favor of the plaintiff. They found that she
was negligent. And so we have to consider that special interrogatory as saying this:
Was it reasonably foreseeable to a negligent Lori Ortberg that this suicide was—that
Keith Stanphill would commit suicide on or such a date[?] ***
And so how can we issue a special interrogatory about Lori Ortberg before we
know what the jury—whether she was negligent or not negligent. How can that not be
ambiguous? Because it seems to me it’s perfectly understandable that the jury would
find that she was negligent, award—award damages to the plaintiff, and then say all
right, was it reasonably foreseeable to Lori Ortberg? No, it wasn’t foreseeable to her,
she was negligent. So no, it wasn’t foreseeable to Lori Ortberg because she was
negligent. She didn’t foresee it was suicide, we already found that, so we’re going to
check that box no.
That makes perfect sense to me, and that’s one of the arguments the plaintiff[ ]
[has] raised here, that it’s consistent with the verdict. And yet the Garcia Court
approved that special interrogatory.
***
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Garcia is the case that the Second Appellate District needs to take a good, strong,
hard look at and decide whether or not it was properly decided or wrongly decided.
I think it was wrongly decided. I think if we’re going to give any kind of a special
interrogatory in a suicide case where the defendant is allegedly negligent for not
foreseeing the suicide, that the special interrogatory needs to not have the defendant’s
name in it. It needs to say was it foreseeable or was it reasonably foreseeable to a
reasonably careful social worker that so and so would commit suicide on such and
such a date.
That’s what it should say if we’re going to give special interrogatories at all in a
case like this. It shouldn’t have the defendant’s name because it throws terrible
ambiguity into the special interrogatory.
And if there’s one thing Illinois case law is clear about, it’s that you shouldn’t
give an ambiguous special interrogatory. It should be clear. This is anything but clear.
It’s—it’s muddy.
***
I think the Second District should take a hard look at Garcia, and if they find that
plaintiff[’]s arguments are appropriate, which, quite frankly, I think they are, then it
should not follow Garcia and it should reverse this case and enter judgment in favor
of the plaintiff[ ].”
¶ 20 Following the trial court’s ruling, the plaintiff filed a timely notice of appeal.
¶ 21 ANALYSIS
¶ 22 On appeal, the plaintiff contends that the trial court erred in either (1) entering judgment
in the defendants’ favor because the jury’s answer to the special interrogatory was not
irreconcilable with the general verdict or (2) giving the special interrogatory because it was
not in the proper form.
¶ 23 At the outset, we note that the defendants argue that the plaintiff forfeited his objection to
the special interrogatory because he failed to object to the specific form of the special
interrogatory. Generally, a party’s failure to raise a specific objection to the form of an
interrogatory forfeits that ground for appeal. Morton v. City of Chicago, 286 Ill. App. 3d 444,
450 (1997). Based on our review of the record, we believe that the plaintiff sufficiently
objected to the form of the interrogatory in the trial court. We will therefore consider the
merits of his appeal.
¶ 24 Special interrogatories are governed by section 2-1108 of the Code of Civil Procedure
(735 ILCS 5/2-1108 (West 2016)), which reads in full as follows:
“Verdict—Special interrogatories. Unless the nature of the case requires otherwise,
the jury shall render a general verdict. The jury may be required by the court, and
must be required on request of any party, to find specially upon any material question
or questions of fact submitted to the jury in writing. Special interrogatories shall be
tendered, objected to, ruled upon and submitted to the jury as in the case of
instructions. Submitting or refusing to submit a question of fact to the jury may be
reviewed on appeal, as a ruling on a question of law. When the special finding of fact
is inconsistent with the general verdict, the former controls the latter and the court
may enter judgment accordingly.”
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We review de novo as a question of law a trial court’s decision on whether to give a special
interrogatory that has been requested by a party. See id.¶ 25 Special interrogatories are designed to be the “guardian of the integrity of a general
verdict in a civil jury trial,” and they “test[ ] the general verdict against the jury’s
determination as to one or more specific issues of ultimate fact.” (Internal quotation marks
omitted.) Simmons v. Garces, 198 Ill. 2d 541, 555 (2002). As section 2-1108 explains, an
answer to a special interrogatory controls the judgment when it is “inconsistent” with the
general verdict. 735 ILCS 5/2-1108 (West 2016). The special interrogatory controls,
however, only when it is “clearly and absolutely irreconcilable with the general verdict.”
(Internal quotation marks omitted.) Simmons, 198 Ill. 2d at 556. As the supreme court has
explained:
“If a special interrogatory does not cover all the issues submitted to the jury and a
‘reasonable hypothesis’ exists that allows the special finding to be construed
consistently with the general verdict, they are not ‘absolutely irreconcilable’ and the
special finding will not control. [Citation.] In determining whether answers to special
interrogatories are inconsistent with a general verdict, all reasonable presumptions are
exercised in favor of the general verdict. [Citation.]” Id.¶ 26 The trial court’s duty to instruct the jury to answer a special interrogatory arises only
when the interrogatory is in the proper form. Garcia, 2011 IL App (1st) 103085, ¶ 49. “[A]
special interrogatory is in proper form if (1) it relates to an ultimate issue of fact upon which
the rights of the parties depend, and (2) an answer responsive thereto is inconsistent with
some general verdict that might be returned.” Simmons, 198 Ill. 2d at 563. Additionally, the
interrogatory “should be a single question, stated in terms that are simple, unambiguous, and
understandable; it should not be repetitive, confusing, or misleading.” Id.¶ 27 We observe that our court addressed a similar alleged inconsistency between a general
verdict and a special interrogatory in Lancaster v. Jeffrey Galion, Inc., 77 Ill. App. 3d 819,
826 (1979). In Lancaster, the plaintiff was injured in a road paving accident by a tandem
roller manufactured by the defendant. The defendant asserted that the plaintiff’s injuries were
a result of coworker Ronald Herbig’s misuse of the roller. Id. at 820. Over the plaintiff’s
objection, the trial court gave the jury the following special interrogatory that the defendant
had requested:
“ ‘Does the jury find from a preponderance of the evidence that the misuse of the
roller by Ronald Herbig, an employee of Rockford Blacktop, was the proximate cause
of the injuries sustained by the plaintiff in the occurrence in question?’ ” Id. at 821.
The jury returned a general verdict in the plaintiff’s favor, but answered affirmatively to the
special interrogatory. The trial court determined that the jury’s findings were inconsistent and
therefore entered judgment for the defendant. Id.
¶ 28 On appeal, this court reversed, holding that the general verdict and the special
interrogatory were not necessarily inconsistent. We explained that the jury’s general verdict
implicitly found that the roller was in an unreasonably dangerous condition when it left the
manufacturer’s control and that the roller was being used and operated in a manner either
intended or reasonably foreseeable. Id. at 823-24. We concluded that the jury’s answering
“yes” to the question of whether the injury was caused by Herbig’s misuse was not
inconsistent with the jury’s general verdict, as its general verdict implicitly found that the
misuse was reasonably foreseeable to the manufacturer. Id. at 824.
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¶ 29 Here, as in Lancaster, we hold that the general verdict and the answer to the special
interrogatory are not necessarily inconsistent. The plaintiff’s theory at trial was that Ortberg
was negligent in the performance of her duties when she counseled Keith on September 30,
2005. A juror could conclude that, because she was negligent, it was not reasonably
foreseeable to her that Keith would commit suicide approximately nine days after he met
with her. As the general verdict and the answer to the special interrogatory were not clearly
and absolutely irreconcilable, the trial court should have entered judgment in favor of the
plaintiff. See Simmons, 198 Ill. 2d at 556.
¶ 30 Even if we were to construe the general verdict and the answer to the special
interrogatory as inconsistent, we would still hold that the answer should not prevail over the
general verdict because the special interrogatory was not in the proper form. In addressing
the foreseeability of Keith’s suicide, the special interrogatory was really asking whether
Ortberg’s conduct was a proximate cause of Keith’s suicide. Proximate cause is one of three
elements a plaintiff must prove to succeed in a negligence action: (1) the defendant owed a
duty of care, (2) the defendant breached that duty, and (3) the plaintiff’s resulting injury was
proximately caused by the breach. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d
107, 114 (1995). Whether the defendant owed a duty to the plaintiff is a question of law to be
decided by the court. Id. Whether the defendant breached his duty and whether the breach
was the proximate cause of the injury are factual questions for a jury to decide, as long as
there is a genuine issue of material fact about breach and causation. Id.¶ 31 A claim of medical malpractice is proven when the plaintiff shows that there was a
standard of care by which to measure the defendant’s conduct, the defendant negligently
breached that standard of care, and the defendant’s breach was the proximate cause of the
plaintiff’s injury. Northern Trust Co. v. University of Chicago Hospitals & Clinics, 355 Ill.
App. 3d 230, 241 (2004). A plaintiff must prove these elements by presenting expert medical
testimony. Id. at 242.
¶ 32 There are two requirements for a showing of proximate cause: cause in fact and legal
cause. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992); see also Knauerhaze v.
Nelson, 361 Ill. App. 3d 538, 556 (2005). At issue in this case is legal cause. Legal cause is
established if an injury was foreseeable as the type of harm that a reasonable person would
expect to see as a likely result of his conduct. Lee, 152 Ill. 2d at 456. Although the
foreseeability of an injury will establish legal cause, the extent of the injury or the exact way
in which it occurs need not be foreseeable. Knauerhaze, 361 Ill. App. 3d at 556 (citing
Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill. App. 3d 32, 45 (1997)). By requiring a
plaintiff to show legal cause for an injury, the law sets limits on how far a defendant’s legal
responsibility should extend for his actions. Lee, 152 Ill. 2d at 455. Accordingly, here, it
would have been appropriate to submit a special interrogatory on the question of
foreseeability, as assurance from the jury that it found Keith’s suicide to be the type of injury
that a reasonable person would expect to see as a likely result of the defendants’ conduct. See
Hooper v. County of Cook, 366 Ill. App. 3d 1, 7 (2006).
¶ 33 However, the special interrogatory presented to the jury was not in the proper form
because it did not ask whether Keith’s suicide was foreseeable as the type of harm that a
reasonable person (or a reasonable licensed clinical social worker) would expect to see as a
likely result of her conduct. See Lee, 152 Ill. 2d at 456. Rather, the interrogatory asked
whether Keith’s suicide was foreseeable to Ortberg. By substituting “Lori Ortberg” for a
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“reasonable person” or a “reasonable licensed clinical social worker,” the interrogatory
distorted the law and became ambiguous and misleading to the jury. Although a reasonable
person or a reasonable licensed clinical social worker might have been able to foresee Keith’s
suicide, that does not mean that Ortberg (who according to the plaintiff’s theory did not act
reasonably) would have. As such, the interrogatory was confusing and should not have been
given. See Simmons, 198 Ill. 2d at 563.
¶ 34 In so ruling, we reject the defendants’ contention that Garcia requires us to reach a
different result here. In Garcia, the decedent was a resident of the defendant nursing home
when he ejected himself from a fifth-floor window, causing his own death. Garcia, 2011 IL
App (1st) 103085, ¶ 1. The decedent’s estate filed a wrongful death and survival action
against the defendant. At trial, upon the defendant’s request, the trial court gave the
following special interrogatory:
“ ‘Prior to Roberto Garcia’s death, was it reasonably foreseeable to [the defendant]
that he would commit suicide or act in a self-destructive manner on or before April
21, 2004.’ ” Id. ¶ 10.
The jury entered a general verdict for the estate but answered the special interrogatory in the
negative. The trial court therefore entered judgment in favor of the defendant. Id. ¶ 13.
¶ 35 On appeal, the plaintiff argued that the interrogatory was not in proper form because the
jury was required to make the following four factual findings: “(1) [whether] Roberto
committed suicide, and (2) if so, was it foreseeable, or (3) whether Roberto committed a
self-destructive act, and (4) if so, was it foreseeable?” Id. ¶ 51. The reviewing court disagreed
and affirmed the trial court’s decision, finding that the question was properly phrased as a
single question regarding the foreseeability of two alternatives in the disjunctive and that an
affirmative answer to either alternative required an affirmative answer to the entire
interrogatory. Id. Thus, the court concluded that the interrogatory’s construction was not
impermissibly compound. Id.
¶ 36 We note that the plaintiff in Garcia did not raise, and the reviewing court did not
consider, whether the interrogatory was improper because it tested foreseeability through the
eyes of the individual defendant rather than a reasonable person. As the Garcia court did not
consider that issue, its decision cannot establish that the proper basis to test foreseeability is
through the eyes of the individual defendant. See Brecht v. Abrahamson, 507 U.S. 619, 631
(1993) (a decision that does not squarely address an issue allows the issue to be addressed on
the merits at a later date); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38
(1952) (issue not “raised in briefs or argument nor discussed in the [previous] opinion of the
Court” cannot be taken as “a binding precedent on th[e] point”); Webster v. Fall, 266 U.S.
507, 511 (1925) (“Questions which merely lurk in the record, neither brought to the attention
of the court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents.”).
¶ 37 Although Garcia did not squarely address the issue, the defendants insist that numerous
other cases have held that a defendant will not be found negligent if the harm that befell the
plaintiff was not foreseeable to the individual defendant. We disagree with the defendants’
characterization of the law. Our supreme court has repeatedly held that the appropriate test
for foreseeability is whether a reasonable person would anticipate the harm that occurs to the
plaintiff. See City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 406 (2004) (the
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relevant inquiry is whether the injury is of a type that a reasonable person would see as a
likely result of his conduct); Lee, 152 Ill. 2d at 455 (same).
¶ 38 By contrast, in the litany of cases they cite, the defendants rely upon only one Illinois
Supreme Court case—American National Bank & Trust Co. of Chicago v. National
Advertising Co., 149 Ill. 2d 14, 29 (1992). That case, however, does not advance the
defendants’ cause. In American National Bank, the supreme court addressed foreseeability in
the context of duty, not proximate cause. See Beretta, 213 Ill. 2d at 394 (the question of
foreseeability plays a pivotal role in both the question of the existence of a duty and the
determination of legal cause). Although “reasonable foreseeability” is relevant to both duty
and proximate cause, courts must take care to keep duty and proximate cause analytically
independent by differentiating between “two distinct problems in negligence theory—the
unforeseen plaintiff problem and the problem of the foreseeable injury resulting from
unforeseen means.” (Internal quotation marks omitted.) Colonial Inn Motor Lodge, 288 Ill.
App. 3d at 41. Since American National Bank dealt with the duty element of negligence, its
discussion of foreseeability is inapplicable here. See Hooper, 366 Ill. App. 3d at 10.
¶ 39 Moreover, we also reject the defendants’ argument that, in light of the proper jury
instructions and the plaintiff’s counsel’s closing statement asking the jury to vote “yes” on
the special interrogatory, this court should find that the general verdict and the answer to the
special interrogatory were inconsistent and therefore affirm the trial court’s judgment. The
test for construing the meaning of a jury instruction “is not what meaning the ingenuity of
counsel can at leisure attribute to the instructions, but how and in what sense, under the
evidence before them and the circumstances of the trial, ordinary men acting as jurors will
understand the instructions.” Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 213 (1927).
Here, the trial court itself stated that it found the special interrogatory ambiguous and
confusing. The trial court’s difficulty in deciphering the special interrogatory is compelling
evidence that the jury likely would have experienced similar confusion. Consequently, even
though the plaintiff’s counsel requested the jury to vote “yes” on the special interrogatory,
that does not negate the ambiguity in the interrogatory.
¶ 40 We next turn to the defendants’ argument that we should affirm on the alternate basis that
the plaintiff failed to establish proximate cause. In making this argument, the defendants
essentially ask us to enter judgment in their favor notwithstanding the jury’s general verdict
in favor of the plaintiff. Judgment notwithstanding the verdict should not be entered unless
the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly
favors the movant that no contrary verdict based on that evidence could ever stand. Holton v.
Memorial Hospital, 176 Ill. 2d 95, 109 (1997). We do not believe that the evidence in the
case at bar so overwhelmingly favors the defendants that no contrary verdict could ever
stand.
¶ 41 Proximate cause means any cause that, in natural or probable sequence, produced the
complained of injury. Capiccioni v. Brennan Naperville, Inc., 339 Ill. App. 3d 927, 937
(2003). It need not be the sole cause or the last or nearest cause. Shannon v. Boise Cascade,
336 Ill. App. 3d 533, 543 (2003). Issues involving proximate cause are fact-specific and
therefore uniquely for the jury’s determination. Holton, 176 Ill. 2d at 107. When a plaintiff
comes to a hospital already injured and while in the care of the hospital is negligently treated,
the question of whether the defendant’s negligent treatment is a proximate cause of the
plaintiff’s ultimate injury is ordinarily one of fact for the jury. Id.- 10 -
¶ 42 Here, Potter testified that Ortberg had misdiagnosed Keith as not being suicidal when she
had evaluated him. Ortberg acknowledged that, had she diagnosed Keith as suicidal, it would
have been her duty to take steps to get him further care from a mental health specialist.
Because Ortberg did not refer Keith to a mental health specialist, the jury could reasonably
infer that Ortberg had breached her duty of reasonable care.
¶ 43 Dr. Bawden testified that one who has suicidal thoughts has a very treatable condition
and that if Ortberg had properly referred Keith, Keith would not have killed himself. Dr.
Bawden’s testimony was sufficient for the jury to conclude that Ortberg’s misdiagnosis and
misevaluation of Keith was a proximate cause of his death. Cf. Holton, 176 Ill. 2d at 107-08(defendant nurses’ failure to accurately and timely report plaintiff’s information to doctors
was proximate cause of plaintiff’s injuries because nurses’ conduct prevented doctors from
having opportunity to treat her condition); Wodziak v. Kash, 278 Ill. App. 3d 901 (1996)
(evidence was sufficient to establish that defendant’s delay in diagnosing the decedent’s
illness lessened the effectiveness of the treatment, and plaintiff was not required to show in
absolute terms that a different outcome would have occurred had defendant made an earlier
diagnosis of the decedent’s condition).
¶ 44 The defendants point to several cases in which courts have found that a lack of expert
testimony prevented the plaintiffs from establishing that the defendants’ conduct was a
proximate cause of the plaintiffs’ injuries. See, e.g., Snelson v. Kamm, 204 Ill. 2d 1, 42-43
(2003); Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 298-99 (2008); Townsend v. University
of Chicago Hospitals, 318 Ill. App. 3d 406, 414-15 (2000); Susnis v. Radfar, 317 Ill. App. 3d
817, 825-27 (2000); Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967,
974-76 (1997). The defendants argue that, because Dr. Bawden was not an emergency room
physician, he could not provide expert testimony as to whether a referral to an emergency
room would have prevented Keith’s suicide. Absent such expert testimony, the defendants
insist that this court must enter judgment in their favor.
¶ 45 The plaintiff points out that the defendants made no objection at trial to the foundation of
Dr. Bawden’s opinion, and therefore he contends that the defendants’ objections to his
testimony now on appeal are forfeited. We agree. See Mabry v. Boler, 2012 IL App (1st)
111464, ¶ 15 (arguments not raised before the trial court are forfeited and cannot be raised
for the first time on appeal). Further, even overlooking the defendants’ forfeiture, based on
Dr. Bawden’s qualifications as a psychiatrist for 37 years with extensive experience in
evaluating patients in an emergency room setting, we believe that he was able to provide
expert testimony as to whether a referral to an emergency room or a psychiatrist would have
prevented Keith’s suicide. The defendants’ contention to the contrary, therefore, is without
merit.
¶ 46 CONCLUSION
¶ 47 For the foregoing reasons, the judgment of the circuit court of Winnebago County is
reversed, and the cause is remanded with directions to enter judgment for the plaintiff on the
general verdict.
¶ 48 Reversed and remanded with directions.
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