Grauer v. Clare Oaks

Decision Date14 August 2019
Docket NumberNo. 1-18-0835,1-18-0835
Citation2019 IL App (1st) 180835,136 N.E.3d 123,434 Ill.Dec. 375
Parties Susan R. GRAUER and Thomas M. Trendel, as Independent Coexecutors of the Estate of Dolores Trendel, Deceased, Plaintiffs-Appellees, v. CLARE OAKS, an Illinois Not-For-Profit Corporation d/b/a Assisi at Clare Oaks and/or Assisi Healthcare Center at Clare Oaks; CRSA/LCS Management, LLC, an Iowa Limited Liability Company; CRSA/LCS Employment Services, LLC, an Iowa Limited Liability Company; Percival Bigol, M.D.; Percival A. Bigol, M.D., LTD.; and Michelle Hart-Carlson, Defendants (Clare Oaks, Defendant-Appellant).
CourtUnited States Appellate Court of Illinois

Karen Kies DeGrand and Meagan P. VanderWeele, of Donohue Brown Mathewson & Smyth LLC, Matthew R. Henderson and Carson R. Griffis, of Hinshaw & Culbertson LLP, and Michael L. Vittori and Michael E. Zidek, of Wilson Elser Moskowitz Edelman & Dicker LLP, all of Chicago, for appellant.

Michael W. Rathsack, Susan L. Novosad, Steven M. Levin, Margaret P. Battersby Black, and Daniel D. Goldfaden, all of Chicago, for appellees.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 The defendant-appellant, Clare Oaks, an Illinois not-for-profit corporation doing business as Assisi at Clare Oaks and Assisi Healthcare Center at Clare Oaks (Clare Oaks), appeals to this court following a jury verdict against it and in favor of the plaintiffs-appellees, Susan R. Grauer and Thomas M. Trendel, as independent coexecutors of the estate of Dolores Trendel, deceased, in the circuit court of Cook County, on claims alleging violations of the Nursing Home Care Act ( 210 ILCS 45/1-101 et seq. (West 2016)), common-law negligence, and wrongful death. The plaintiffs' claims arose out of injuries that they allege Dolores Trendel (Trendel) sustained when she suffered a stroke on March 30, 2011, two weeks after she stopped receiving Coumadin, a medication that reduces the risk of stroke in individuals with atrial fibrillation. Trendel died on March 15, 2015, and the plaintiffs allege that her death was due to complications from the stroke. Clare Oaks was the licensee licensed by the Department of Public Health to operate the facility at which Trendel was a resident at the time of the occurrence.

¶ 2 The plaintiffs' claims against Clare Oaks were tried to a jury along with their claims against several other defendants who are not parties to this appeal. One such defendant, Michelle Hart-Carlson, was the administrator of Clare Oaks. The jury found in favor of Hart-Carlson and against the plaintiffs on the claims against her. Other such defendants were Percival Bigol, M.D., and his medical practice group, Percival A. Bigol, M.D., Ltd. (collectively Dr. Bigol). Dr. Bigol was the medical director of Clare Oaks and Trendel's attending physician while she was a resident there. The plaintiffs brought claims against Dr. Bigol in both capacities, but the jury found in favor of Dr. Bigol and against the plaintiffs on all claims against him.1

¶ 3 Following the jury verdict, the trial court denied Clare Oaks' posttrial motion for a new trial. The trial court also granted a motion by the plaintiffs that Clare Oaks pay their attorney fees and costs pursuant to section 3-602 of the Nursing Home Care Act (id. § 3-602). Clare Oaks argues on appeal that a new trial should be ordered based on a number of erroneous rulings by the trial court during the trial, as well as because of certain remarks by the attorneys and witnesses for the plaintiffs. Clare Oaks also appeals the order awarding attorney fees and costs. For the following reasons, we affirm in part and reverse in part.

¶ 4 I. BACKGROUND

¶ 5 On February 23, 2011, Trendel was admitted to Clare Oaks for rehabilitation after she fractured her ankle. Then 85 years of age, she also suffered from atrial fibrillation, a heart condition that put her at risk for developing blood clots that, in turn, increased her risk of stroke. To reduce this risk, Trendel had been taking the medication Coumadin, commonly referred to as a "blood thinner," for several years. Upon her admission to Clare Oaks, her dosage of Coumadin was managed by Dr. Bigol. Although the evidence demonstrated some irregularities in this regard, Trendel essentially received her prescribed dosage of Coumadin from the time of her admission through March 15, 2011. On March 16, 2011, a nurse at Clare Oaks named Christina Martinez documented on a lab report form and in a nurse's note that she had spoken by telephone with Dr. Bigol and he had ordered Trendel's Coumadin to be discontinued. Dr. Bigol disputed that he had given this order. It is undisputed that, although Martinez documented the order in two places, she did not document it in the "physician orders" section of Trendel's medical chart, sometimes referred to by the witnesses as the "physician order sheet" or a "telephone order." It is also undisputed that Trendel did not receive Coumadin after March 16, 2011, and she suffered a stroke on March 30, 2011.

¶ 6 A. Proceedings Concerning Clare Oaks' Nursing Expert Barbara McFadden

¶ 7 The trial of this case was scheduled to commence on July 10, 2017. The record reflects that on June 26, 2017, the parties first appeared before the assigned trial judge and filed their respective motions in limine . No transcript of the hearing that occurred that day is part of the record on appeal. The matter was continued to June 27, 2017, and the first motion in limine that the trial court addressed that day involved the testimony of Barbara McFadden, an expert witness retained by Clare Oaks, whose evidence deposition was scheduled to be taken in New York on June 29, 2017. According to that motion, Clare Oaks had disclosed that McFadden would testify that Clare Oaks and its staff complied with all applicable standards of care. However, the motion stated that, after being questioned and shown additional materials at her discovery deposition, McFadden agreed that Martinez had in fact violated the standard of care by failing to write on the physician order sheet in Trendel's chart that Dr. Bigol had ordered Trendel's Coumadin to be discontinued on March 16, 2011, and by failing to indicate that it was discontinued in Trendel's medication administration record. The plaintiffs' motion also stated that McFadden had agreed in her discovery deposition that Clare Oaks' director of nursing, Lakeisha Coleman, violated the standard of care applicable to her by failing to verify that all of Dr. Bigol's verbal and written orders were consistently executed and documented in Trendel's chart by the Clare Oaks staff and that Coleman also failed to comply with all applicable state and federal regulations. Finally, the motion stated that McFadden had agreed in her deposition that the nursing staff of Clare Oaks had violated the standard of care by failing to administer Coumadin to Trendel in accordance with physician orders and by failing to properly document orders by Dr. Bigol. The plaintiffs' motion sought to bar McFadden from giving trial testimony on these points that was inconsistent with her discovery deposition testimony.

¶ 8 The trial court indicated it had reviewed Clare Oaks' response to this motion and read McFadden's discovery deposition in its entirety. In ruling, the trial court stated, "I have to confess, I have never been confronted with a situation like this. * * * I think that you will find that Ms. McFadden will not be a very valuable witness." The trial court then ruled that McFadden would be limited to expressing those opinions disclosed in Clare Oaks' written disclosures and in her discovery deposition, provided they were consistent, and it would rule on specific objections after her evidence deposition had been taken.

¶ 9 The parties returned to court on June 30, 2017, and informed the trial court that McFadden's evidence deposition had not been taken as scheduled the preceding day. Clare Oaks' attorney stated to the trial court that McFadden's medical condition had prevented the deposition from proceeding but he was unaware of her present condition. The plaintiffs' attorney then stated to the trial court that the reason McFadden was testifying by evidence deposition was because she had previously informed the parties that she was scheduled to undergo knee replacement surgery on July 20, 2017. The plaintiffs' attorney stated that the attorneys had traveled to New York as planned to take the deposition. She stated that McFadden was present at the location where the deposition was to take place but, prior to commencing, she stated that she felt unwell and was calling a family member to take her home or to a hospital. The plaintiffs' attorney stated that she had offered to stay overnight and take the deposition the following day but was told that would not be fruitful.

¶ 10 In light of the impending trial date, the trial court ordered the attorney for Clare Oaks to inform the other attorneys by the end of the day regarding his intentions with respect to obtaining McFadden's trial testimony. In doing so, the trial court stated that if Clare Oaks was planning on moving to continue the trial due to McFadden's health issues, "that motion has to be brought sooner than later in front of my presiding judge." The attorney for Clare Oaks then asked the trial court if it was possible for McFadden to testify live through the use of a video conferencing system, instead of appearing in person at the trial. The trial court stated that this was possible.

¶ 11 It does not appear from the record that any further discussion occurred regarding McFadden until July 10, 2017, the day that the trial was scheduled to commence. On that day, Clare Oaks presented the trial court with an emergency motion to continue the trial on the basis of McFadden's unavailability. The motion itself indicated that McFadden's health problems were continuing and that she "will be examined by a cardiologist tomorrow...

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4 cases
  • Bailey v. Mercy Hosp. & Med. Ctr.
    • United States
    • United States Appellate Court of Illinois
    • 30 Septiembre 2020
    ...court's "denial of a motion in limine does not preserve an objection to disputed evidence later introduced at trial." Grauer v. Clare Oaks , 2019 IL App (1st) 180835, ¶ 95, 434 Ill.Dec. 375, 136 N.E.3d 123. To preserve an argument for review, the party asserting the objection must object co......
  • Ill. State Toll Highway Auth. v. Chi. Title Land Trust Co.
    • United States
    • United States Appellate Court of Illinois
    • 14 Diciembre 2021
    ...and the decision to grant or deny a motion for continuance is vested in the sound discretion of the trial court. Grauer v. Clare Oaks , 2019 IL App (1st) 180835, ¶ 55, 434 Ill.Dec. 375, 136 N.E.3d 123. A party seeking a continuance once the case has reached the trial stage must provide the ......
  • Channon v. Westward Mgmt., Inc.
    • United States
    • United States Appellate Court of Illinois
    • 7 Diciembre 2021
    ...interpretation is that we interpret statutes as they were intended to be interpreted at the time they were passed. Grauer v. Clare Oaks , 2019 IL App (1st) 180835, ¶ 157, 434 Ill.Dec. 375, 136 N.E.3d 123 (citing O'Casek v. Children's Home & Aid Society of Illinois , 229 Ill. 2d 421, 441, 32......
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    • United States
    • United States Appellate Court of Illinois
    • 26 Marzo 2021
    ...negligence cases, "expert testimony on the matter is still necessary before a defendant can argue" sole proximate cause. Grauer v. Clare Oaks , 2019 IL App (1st) 180835, ¶ 111, 434 Ill.Dec. 375, 136 N.E.3d 123. However, it does not follow that an expert witness must expressly opine that ano......
1 books & journal articles
  • Witness
    • United States
    • James Publishing Practical Law Books Trial Objections
    • 5 Mayo 2022
    ...the victim’s bone density or taking a sample from the victim’s spine. ILLINOIS Grauer v. Clare Oaks , 2019 IL App (1st) 180835, ¶ 74, 136 N.E.3d 123, 147 (Ill. App. Ct. 2019). Nursing home forfeited the argument that nurse expressed opinions in her testimony outside her area of expertise wh......

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