Grauer v. Clare Oaks
136 N.E.3d 123
Ill. App. Ct.2019Background
- Dolores Trendel, an 85-year-old nursing-home resident with atrial fibrillation, stopped receiving Coumadin after March 16, 2011; she suffered a cardioembolic stroke on March 30, 2011, and died in 2015.
- Nurse Christina Martinez documented a phone note that Coumadin was discontinued but did not transcribe a physician/telephone order onto the physician order sheet; Dr. Percival Bigol disputed giving such an order.
- Plaintiffs (co-executors of Trendel’s estate) sued Clare Oaks (the facility), Dr. Bigol (attending physician/medical director), and others under the Nursing Home Care Act (NHCA), negligence, and wrongful death.
- Jury found for plaintiffs against Clare Oaks only (verdict $4,111,477.66); verdict for defendants Dr. Bigol and administrator Hart‑Carlson. Trial court denied Clare Oaks’ new-trial motion.
- Trial court awarded plaintiffs attorney fees and costs under 210 ILCS 45/3-602; fees equaled the one-third contingency (plaintiffs’ contract). Clare Oaks appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of continuance for Clare Oaks’ nursing expert McFadden | Plaintiffs argued trial should proceed; alternatives (deposition/testimony) were available | Clare Oaks argued unavailability of McFadden denied right to a fair trial | Denial not an abuse of discretion: Clare Oaks failed Rule 231 affidavit and did not show due diligence or that remote deposition/testimony was impossible |
| Admissibility / scope of plaintiffs’ nursing expert (Pignatiello) and use of opposing expert’s deposition (McFadden) | Pignatiello relied on McFadden’s deposition and other records to form and explain opinions; disclosure of adverse expert reliance is permitted under Wilson/Rule 703 | Clare Oaks said Pignatiello exceeded nursing expertise and impermissibly parroted McFadden (hearsay) | Court upheld Pignatiello’s testimony as within nursing expertise and allowed limited disclosure of McFadden’s deposition findings as bases for Pignatiello’s opinions (not hearsay) |
| Physician experts addressing nursing matters (Dr. Lachs) | Plaintiffs used Dr. Lachs to opine on physician-standard issues (medical director duties) and to explain deficiencies he relied on | Clare Oaks argued physicians cannot testify to nursing standard of care | Court found Dr. Lachs’s testimony related to physician/medical-director standards and causation, not impermissible nursing-standard testimony; no reversible error |
| Use of Dr. Pop letter and nurse-practitioner notes; calling Dr. Pop / sole-proximate-cause defense | Plaintiffs objected to using those documents to impute fault to third parties; they were not disclosed to offer contrary criticism | Clare Oaks sought to cross-examine and call Dr. Pop or use notes to show third-party causation (sole proximate cause) | Court limited use: Clare Oaks could not present those materials as proof that a third party was sole proximate cause absent expert opinion supporting that theory; trial court did not abuse discretion in barring such use or calling Dr. Pop for that purpose |
| Award of attorney fees under NHCA (210 ILCS 45/3-602) | Plaintiffs sought one-third contingency (their contract) and costs; argued statute’s purpose supports broad cost/fee shifting | Clare Oaks argued plaintiffs failed to prove reasonableness (no lodestar entries) and trial court arbitrarily awarded one-third of entire verdict (including wrongful-death portion) | Trial court may award reasonable fees and may consider a contingency as evidence of market rate; court affirmed award generally but reversed as to fee portion based on damages allocated to wrongful-death claims (those are not fee‑shiftable under NHCA) and remanded for recalculation; costs award affirmed (broader “costs” under §3-602 includes litigation costs) |
Key Cases Cited
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (1998) (physician expert generally not competent to testify to nursing standard of care)
- Wilson v. Clark, 84 Ill. 2d 186 (1981) (experts may rely on inadmissible data under Rule 703 and disclose it to explain their opinion)
- Kim v. Nazarian, 216 Ill. App. 3d 818 (1991) (precluding expert from parroting corroborative opinions of nontestifying colleagues)
- Berlak v. Villa Scalabrini Home for the Aged, Inc., 284 Ill. App. 3d 231 (1996) (NHCA fee-shifting purpose; contingent fee may be considered)
- Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295 (2003) (definition and limits on taxable "costs" under statute—distinguishing court costs and litigation costs)
- Pietrzyk v. Oak Lawn Pavilion, Inc., 329 Ill. App. 3d 1043 (2002) (fees under NHCA: wrongful-death damages are not subject to fee‑shifting; separate analysis when verdict includes both recoverable and non-recoverable portions)