Longnecker v. Loyola University Medical Center

874 сaused, injury wrongfully thereby commencing two-year legal

limitations A period appropriate within which to take action.” person reasonably should injury “wrongfully knows know an possesses caused” where he or she “sufficient information concerning injury put person inquiry [an] and its cause to a reasonable determine whether actionable conduct is College, involved.” Knox Ill. 2d at 416. At that point, plaintiffs inquire it is burden to further Witherell, about the existence of a cause action. 85 Ill. 2d at 156. In so holding, finding plaintiffs injury we make no was caused sudden, by a traumatic event. “The injury classification of an as merely ‘traumatic’ or ‘nontraumatic’ aids in the determination of discovered, discovered, when the or should have injury by wrongful was caused conduct of Pszenny a defendant.” v. (1985). Co., 964, 966, General Electric N.E.2d Regardless classified, injuries of how Josetta’s are the time plaintiffs attorneys, plaintiffs consulted with two reasonably knew or should injuries wrongfully Accordingly, have known their were caused. plaintiffs’ complaint years was filed more than two after limita period began tions and should have been dismissed. See 735 ILCS (West 212(a) 2004). granting affirm the trial court’s order We 5/13 — summary judgment to the defendants.

Affirmed. GORDON, JJ.,

GARCIA and R. concur. LONGNECKER, Special of Carl CONNIE Indiv. and as Adm’r the Estate Deceased, Longnecker, Plaintiff-Appellant, v. LOYOLA UNIVERSITY al., Defendants-Appellees.

MEDICAL CENTER et Division) (1st No. 1 — 06—1536 First Distriсt Opinion filed June 2008. GORDON, E., J., dissenting. ROBERT Rathsack, Hoste, Leahy, Chicago, for

Michael W Tom and Peter D. all of appellant. Stalmack, Bollinger, Ruberry & R. Frick and John M. both of

Krista Garvey, Chicago, appellee Parvathaneni. of for Sirish Jr., Patterson, Burke, Frangle & J. and Ben both of Hall Thomas LLC, Knutson, Schoonveld, Eugene Sherry and A. Schoon and A. both of Sid- ley Austin, Chicago, appellee Loyola University Medical & LLP both of for Center. opinion delivered the of the court.

JUSTICE GARCIA individually as administrator Longnecker, special and Connie against Dr. Sirish Longnecker, her filed suit estate of husband Carl Center, Longnecker died Medical after Mr. Loyola and Mr. During procedure, following transplant. an unsuccessful heart He died four “hypertrophic a diseased heart.” Longnecker received days later, regaining consciousness. never

Dr. Parvathaneni acted as the “procuring” “harvesting” surgeon during trial, the transplant. plaintiff presented At two (1) liability: Parvathaneni, theories of agent Loyola, as an com- professional mitted negligence where he failed to properly test and visually inspect the donor heart and failed to diagnose having it as significant left ventricular hypertrophy coronary artery disease; and (2) Loyola committed negligence by failing to ensure that Dr. Parvathaneni procuring understood his role as a surgeon. The jury found in favor of Dr. Parvathaneni and on professional jury claim. The against Loyola found on the institutional negligence claim and plaintiff awarded the million. $2.7 posttrial filed a argued motion in which it it was entitled to judgment n.o.v.) notwithstanding the (judgment or, verdict in the alternative, (1) trial, a new because the plaintiff plead failed to (2) institutional negligence, failed to produce expert (3) testimony support institutional negligence, the plaintiff failed to (4) breach, (5) establish the plaintiff failed causation, to establish the verdicts were inconsistent. The circuit court found the verdict in favor of Dr. Parvathaneni to be irreconcilable with the verdict 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 Therefore, death. the court decided the verdicts were inconsistent. The court vacated the verdict against Loyola and judgment entered Loyola.

The plaintiff contends appeal the jury’s verdicts are not inconsistent. She alternatively argues that if the verdicts are inconsistent, proper remedy is to order a new trial on both causes of action. agrees

Dr. Parvathaneni the verdicts are inconsistent. In his brief, points he to the “wholly separate liability against theories of Loyola аs principal of Dr. [liability against] Parvathaneni and for institutional negligence,” separate to which two standards of care apply.

Loyola’s brief intimates that we need not determine whether the verdicts are inconsistent if the grant judgment circuit court’s n.o.v. proper for other reasons. Loyola focuses on the circuit court’s find- ing cause was precluded based on the verdict in favor of Dr. Parvathaneni judgment contend the proper. Loyola n.o.v. was argues also the judgment n.o.v. was proper because failed to establish the element of breach and because the institutional negligence claim was by barred the statute of In limitations. the alternative, Loyola argues correctly the circuit court found the verdicts to Loyola inconsistent, be inconsistent. if concedes that the verdicts are proper the remedy is to order a new trial on both claims. follow, the verdicts in this case are the reasons that we hold

For supports grant judg- the not inconsistent and that no other basis the decision of the circuit court of ment n.o.v. We therefore reverse County proceedings. and remand for further Cook

BACKGROUND and, coronary Longneeker suffered from numerous ailments Carl 58, had three heart attacks. age suffered Mullen, 2000, a Longneeker patient Georgе Mr. became a cardiologist Loyola. Longneeker at Dr. Mullen told Mr. he needed a transplant placed waiting heart and his name on a donation list. His “status” on By Mr. condition worsened. class,” moving from “2 class” to “IB waiting the donation list went year one without a up surviving his name the list. His chance transplant was 30%. 11, 2001, potential informed donor Longneeker

On June Mr. a He to and prepared heart had been located. went surgery. Heart Procedures Transplantation

A. transplantations. Loy- The approach uses a team to heart three doctors: transplant ola team consists of a nurse coordinator and surgeon, transplant the transplant cardiologist, procuring the surgeon. (ROBI) plays Bank of Illinois also a role in Regional Organ

The Loyola’s transplantations. potential heart donor is declared When dead, donor, gathers including brain ROBI information about the death, the cause of and whether the donor gender, age, weight, alcohol, smoked, may narcotics. ROBI also order drank or used diagnostic passes any tests of the donor’s heart. ROBI then relevant coordinator, transplant information to nurse who briefs the cardiologist. evaluation, transplant cardiologist first makes an based on tests, any preliminarily accept to history

the donor’s and the results of preliminarily accepted, procur- If the heart is or decline the heart. hospital, opens where he or she ing surgeon goes to the donor visually the heart and feels it for defects. inspects donor’s sternum and Next, phone call” where he or procuring surgeon makes the “final decides surgeon, who reports findings she to accepted, reject the heart. If the is accept whether heart, cutting off the “cross-clamps” the donor procuring surgeon solution. The heart preservative and flushes it with a supply, blood transplant surgeon, who has removed transported Loyola, where the the donor heart. transplants “native” patient’s Time transplantations. is of the essence in heart A preserved heart can approximately remain viable for being four hours after removed from the body. Thus, donor’s removal the donor heart and its transport recipient carefully must be coordinated with the removal of the recipient’s native heart.

B. The Heart in This Transplantation Case case, this Penny nurse coordinator was Pearson. Mullen Dr. was the transplant cardiologist. defendant, Parvathaneni, The Dr. was the procuring surgeon, Foy, and Dr. surgical director of the Loyola transplant team, transplant was the surgeon.

The donor 46-year-old was a male who was declared brain dead at Good Hospital. Samaritan family The donor’s informed ROBI he cigarettes smoked marijuana and and drank alcohol regularly, and may that he have used family cocaine. The also revealed the donor diagnosed was hypertension with (high pressure) blood in September 2000. He was “noncompliant” treatment, meaning with he did not take medication regularly.

Based on the donor’s history, ROBI diagnostic tests, ordered including an echocardiogram, “gold standard” test for left ventricle (the hypertrophy enlargement wall), of the heart angiogram, and an the “gold standard” test for coronary artery (plaque disease in the arteries). The donor’s level of troponin, a may substance that be indica- tive of damaged muscle, heart was also measured.

The echocardiogram revealed the donor’s left ventricle measured centimeters, 1.2 meaning he suffered from “mild” left ventricle hyper- trophy. The angiogram revealed “mild” coronary artery disease. The donor’s troponin level was elevated.

ROBI contacted Pearson with the above information. Pearson then Mullen, who, contacted Dr. after evaluating echocardiogram and angiogram, and after discussing the matter Foy, with Dr. preliminarily accepted the heart. Dr. Parvathaneni then went to Good Samaritan in order heart, to “visualize” is, inspect it congenital abnormalities and to confirm findings of the echocardiogram and angiogram. Dr. Parvathaneni did any not have plaque concerns about or hypertrophy in the heart. Dr. Parvathaneni Foy called Dr. and told him the good” “look[ed] and was “suitable for transplantation” surgical from a aspect. Dr. Foy accepted the heart. a.m.,

At 7:10 Dr. cross-clamped the donor’s and he a.m., removed it at 7:30 By a.m. 7:40 the heart was in route to Loyola, where it arrived at 8:10 a.m. a.m.,

At 7:48 while the donor heart on way Loyola, its Dr. Foy placed Longnecker Mr. ‍‌‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​​​​‌​​‌‌​​​​​​‌​​​‌​​‌‌‌‌‍bypass a.m., on a machine. At 8:28 Mr. Dr. cross-clamped and removed. When

Longnecker’s native heart was container, immediately from its he saw Foy removed the donor heart hyper- it suffered from left ventricular and determined touch that artery Foy “Hypertrophic disease. Dr. wrote trophy coronary hypertrophy note because the amount operative heart!” his echocardiogram. on the results of the expected more than he based determined Nevertheless, the heart was suitable for functioned, and, heart, however, transplanted it. The never survived, 15, 2001, Longnecker Longnecker died. Had Mr. June Mr. waiting placed back on the heart donation his name would havе been list. grams, weighed

An the donor heart whereas autopsy revealed left ventricle measured weighs grams. normal heart heart’s thickness, The indicating hypertrophy. centimeters in “severe” two artery disease. coronary “moderate to severe” heart also exhibited infarction, myocardial The was determined to be acute cause death being contributing an indirect cause. hypertrophy with left ventricle Litigation C. 24, 2002, complaint plaintiff

On June filed a three-count Parvathaneni, alleging negligence Dr. medical and and Expense Act wrongful seeking recovery Family death under the and (750 (West 2002)). alleged Loyola, by plaintiff The ILCS 65/15 through agent, Dr. and its Parvathaneni: heart; perform appropriate testing

“a. Failed to of the donor donor perform appropriate inspections to visual of the b. Failed heart; in diagnose significant hypertrophy left ventricle Fail[ed]

c. to prior transplantation; heart to the donor coronary artery in the diagnose significant d. to disease Fail[ed] prior transplantation; [and] donor heart to the standard of care.” e. Otherwise deviated from 10, 2003, complaint in On June filed an amended in the defendants others involved which she named as additional trial, were either transplantation. Prior to the additional defendants the case. judgment voluntarily or dismissed from granted summary Loyola and Dr. were the same allegations against The liability complaints. complaint expressly Neither based both negligence. on institutional trial, mo- 29, 2005, prior Loyola filed a day one to

On November evidence of seeking presenting to from tion in limine bar (1) plaintiff’s complaint negligence because Loyola’s institutional (2) any institutional negligence, allege did not institutional (3) James time-barred, plaintiff’s expert, Dr. and claim would be Avery, appropriate testimony regarding lacked the foundation for his negligence. The circuit court denied the motion. 30, 2005,

On November the trial Foy commenced. Dr. testified that Parvathaneni, he trained Dr. Loyola, who had been a cardiac fellow at to procure transplantation. hearts for Foy “quite Dr. satisfied” that Dr. Parvathaneni both and responsibilities knew understood his procuring Thus, terms of hearts. Dr. Parvathaneni remained on Loyola’s staff after his fellowship completed.

Because used a team approach organ procurement, each required team member was perform know his or her role and role. According Foy, Loyola’s to Dr. system, procuring surgeon evaluates the donor heart making regard- and is involved in decisions ing suitability its for transplant; procuring surgeon does more simply than remove the heart from the body. procuring donor’s (1) surgeon responsible is gathering reviewing and all of the avail- (2) able donor, information about the reviewing any echocardiograms (3) angiograms, visually inspecting the heart for trauma or abnormalities and confirming or denying any abnormalities noted on (4) the echocardiogram angiogram, feeling the Foy heart. Dr. did not specify whether procuring surgeon to feel the prior to cross-clamp, or whether the examination need be performed after Foy’s removal. Dr. “final accept decision” to or reject the heart is in large based part on the procuring surgeon’s findings. case, this by the time Foy Dr. removed the donor heart from its container, he had already removed Mr. native heart. From the moment Dr. held the donor he knew it had “significant” hypertrophy. Foy, however, Dr. decided to proceed with the transplant. Although Foy’s deposition testimony indicated that *** “at the time the donor heart[ ] is brought operative on to the field cast, you the die is have no choice implant heart,” but to he testi- fied at trial that he had the option using of “a type, Jarvik total artificial heart.” Parvathaneni,

Dr. who triple board general certified in surgery, care, critical and cardiothoracic surgery, testified that when he arrived at Gоod to procure heart, Samaritan he Drs. Foy knew and Mullen had already reviewed the results of the echocardiogram and angio- gram and that Dr. Mullen had “evaluated [the] heart and cleared it for transplant.” Dr. Parvathaneni testified he also reviewed the echo- cardiogram angiogram and part as of his duties.

Dr. distinguished between potential two roles of a Loyola transplantation team member: evaluating a heart for and examining a heart to transplanted. be He testified it was his as the procuring surgeon to examine a heart to transplanted, be not to capable He did not consider himself of transplant.

evaluate a heart for transplant. for evaluating a heart Parvathaneni, Loyola’s practice required standard

According to Dr. manually visually to examine the heart and assess procuring surgeons removing coronary artery and disease before hypertrophy it for visually inspected organ. practice, Pursuant to this Dr. Parvathaneni plaque felt for the heart it remained in the donor’s chest and it while hy- He could not whether he could feel more hypertrophy. and recall echocardiogram in pertrophy plaque or in the heart then indicated in angiogram placed when he it its container. acknowledged hypertrоphy easily can most Dr. Parvathaneni However, Dr. Parvathaneni testified be felt after the heart is removed. Rather, manually inspect the heart after removal. he was not trained to bring organ [he] “to as fast as could.” Dr. Par- he was trained heart, take the explained, vathaneni “Once we are told to take we essence, they’re expect- is of the and bag upit and send it. Time Loyola].” ing organ [at Mullen, he aware the transplant cardiologist,

Dr. testified was years history hyperten- donor was 46 old and had a uncontrolled hypertrophy the donor suffered from “mild” sion. He was also aware coronary artery opinion, proper disease. In his it was to and “mild” responsibil- took “full accept a heart with these conditions. Dr. Mullen in ity” accepting the donor heart this case. surgeon from the Pacific Avery,

Dr. a cardiovascular California Center, plaintiff. of the Prior gave expert testimony Medical on behalf Mullen, Foy, testifying, Avery depositions Dr. reviewed from Drs. Parvathaneni, opinions. served as the bases for his and which Dr. Par- opinion, required the standard of care Avery’s history, the echo- patient’s vathaneni to medical and social review cardiogram angiogram, and to see and feel how the heart worked chest, regarding whether to the donor’s and to come to a conclusion however, deposition testimony, the heart. Dr. Parvathaneni’s accept heart at indicated he did not he was to evaluate the believe bring and all; rather, get sent to Samaritan “to the heart he was Good with deposition testimony was conflict it back.” Dr. Parvathaneni’s Foy Mullen that described Dr. testimony given by Drs. deposition of the heart. role as “enormous” the evaluation Parvathaneni’s from the Avery, Dr. Parvathaneni deviated According to Dr. “significant historical items” by being of care unaware standard donor, history hyperten- of uncontrolled including his related to the use. Dr. Par- sion, smoking, potential cocaine history cigarette by failing perform care from the standard of vathaneni also deviated removed. the heart was of the donor physical examination after If so, Dr. Parvathaneni had done he would have found what Dr. later significant found: “a thick heart of hypertrophy and considerable plaque in the coronaries.” Avery additionally

Dr. testified the standard of care Dr. Parvathaneni to understand transplant his role in the as viewed However, the other team members. Dr. Parvathaneni’s deposition testimony role, he indicated failed to understand his in deviation of the standard of care.

Regarding Loyola, Avery Dr. testified:

“Q. regards And in transplant team did the they standard of require they any сare responsibil- have —did ity under the standard of care to make sure that Dr. Parvathaneni they understood his role if going get were to send him to a heart? A. Yes.

Q. And did deviate from the standard of care in that regard?

MR. Loyola]: Objection PATTERSON for your Honor, [Counsel motion in limine.

THE COURT:Overruled. Avery]: [Dr.

A. regard In this I they believe did.

Q. In what manner? Well, basically A. everybody needs to be on the same page terms of what each team member’s role is in the team.” Avery’s Dr. opinion, had Dr. Parvathaneni fulfilled his responsibilities pursuant care, to the standard of had responsibilities fulfilled its in ensuring Dr. Parvathaneni knew his role, the heart would not have transplanted. been

Dr. Higgins, Robert the chairman of cardiovascular and thoracic surgery and the director of the Heart Transplant and Mechanical As- sist Program Device at Rush University Center, Medical testified as an expert on Loyola. behalf of Higgins’s Dr. opinion, to a reasonable degree of certainty, scientific was that the donor heart was suitable for transplantation. The echocardiogram only showed hypertrophy, mild the angiogram only showed mild coronary artery disease, and the possible donor’s cocaine use was not a factor the donor’s death. The visually heart was also for transplantation. suitable Higgins, Dr. however, testified he would not a heart with two-centimeter hypertrophy and sеvere coronary artery disease.

Dr. Alfred Carl Nicolosi expert testified as an on behalf of Dr. Par- According Nicolosi, vathaneni. to Dr. Dr. complied with the standard of care in his procuring surgeon role as a because he reviewed the echocardiogram and the angiogram and conducted visual inspection physical examination of According the heart. Nicolosi, acceptable transplant, the donor heart and none actions Mr. death. Accord-

of Dr. Parvathaneni’s caused Nicolosi, ing Dr. the left ventricle of the donor heart measured two autopsy swelling, hyper- centimeters at the because of not because of trophy. conference, unsuccessfully objected

At the jury Loyola instruction Loyola’s negligence. jury to instructions on institutional The was instructed, part: in Longnecker “The claims that Carl died and that *** Loyola negligent in

defendants Dr. Parvathaneni and were one following respects: properly or more of the Failed to evaluate the heart; perform appropriate physical donor failed to an examination heart; significant problems of the donor failed to communicate examination; reject physical with the donor heart after and failed to transplantation. the donor heаrt for *** Loyola The further claims that defendant to negligent following respects: in one or more of the Failed ensure procuring surgeon. that Dr. Parvathaneni understood his role as a Negligence by hospital something a is the failure to do that a reasonably hospital doing something careful would do or the reasonably hospital that careful not do under the circum- would by similar to stances those shown the evidence. say reasonably hospital

The law does not how a careful would act circumstances, you under the that is for to decide.” jury was not instructed that it could return a verdict favor fact, ‍‌‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​​​​‌​​‌‌​​​​​​‌​​​‌​​‌‌‌‌‍Loyola. if In only of Dr. Parvathaneni it also found favor of jury jury way instructions allowed the to find the it did. verdict, jury initially indicating

After it could not reach a negligence the professional found for Parvathaneni and on against Loyola negligence on the institutional claim. The claim and jury damages. million in assessed $2.7 n.o.v., judgment

On motion for the circuit court found the Loyola. The verdicts inconsistent and vacated the verdict circuit court stated: negligence specifically

“If the institutional in this case is based of Dr. Parvathaneni in that he did not understand conduct did not make sure what his role was and was not—and role, well, jury if the found that he wasn’t he understood his know, then, you nothing wrong with what he negligent, there was he not understand his role or personally did and whether did his role doesn’t mat- didn’t see that he understood whether anything Longnecker], [Mr. caused harm to ter. He didn’t do injury Long- to Mr. If not a cause of his actions were necker, anything if that he did didn’t negligent, if he was then even know, Loy- death, then, the failure you cause Mr. ola doing or he to see that he understood what he was knew what really doing doesn’t matter. he did was the cause Nothing really injury Longnecker. they are to Mr. So inconsistent.” judgment The court entered in favor of both defendants. This timely appeal followed.

ANALYSIS cases, negligence may liability medical face under (1) separate liability two and distinct theories: for the medi vicarious (2) negligence agents employees; liability cal of its for its own negligence. Darling v. Charleston Memorial Community 326, (1965), Hospital, denied, 211 N.E.2d 253 cert. 383 U.S. (1966). 946, 209, L. S. 16 Ed. 2d 86 Ct. 1204 professional case, In a requires the standard of care degree knowledge, ability defendant act with “the same skill ordinarily professional as an careful exercise would under similar Services, 23, circumstances.” Advincula v. United Blood 176 Ill. 2d (1996). Generally, testimony necessary 678 N.E.2d 1009 “expert professional negligence cases establish the standard of care.” Snel (2003). Kamm, 1, 43-44, son v. 204 “[Ejxpert Ill. 2d 787 796 N.E.2d *** testimony is jurors needed practice because are not skilled in the of medicine and would find it difficult the help without of medical evidence to lack skill any necessary part determine of scientific on the physician.” of 249, 256, Walski v. Tiesenga, 72 Ill. 2d 381 N.E.2d (1978). 279 care; negligence analogous

Institutional involves an standard of hospital a defendant judged reasonably what a careful hospital Jury would do under the same circumstances. Illinois Pattern (1995). Instructions, Civil, 105.03.01 generally No. See Jones v. Illinois, 278, 294-99, HMO Ltd. Chicago Ill. 2d 730 N.E.2d 1119 of (2000). however, theory Under this of liability, “the standard of care *** may evidence, be shown by variety a wide of not including, but to, testimony, expert statutes, limited bylaws, accreditation standards, Jones, community practice.” custom and 191 Ill. 2d at 298. “[T]he institutional of can negligence hospitals also be determined expert Jones, testimony without in some cases.” 191 2d at 296. concept The proximate of cause is under professional the same However, and institutional negligence. lay with help consistent jurors any necessary need “to lack determine of scientific skill on the part (Walski, 256), the physician” proximate “[t]he Ill. 2d at element malpractice cause of a medical must case be established testimony expert certainty.” to a reasonable of medical degree added.) (Emphasis Abramowitz, v. 350, Krivanec 356- (2006). authority imposes no that are aware of 851 N.E.2d 849 We be established to a reasonable proximate cause a similar rule case. negligence in an institutional certainty degree medical However, may present profes- case where institutional an so intertwined that standards of care are sional and institutional degree of to be shown to a reasonable proximate cause is Loy- does The case us is not such a case. Nor certainty. medical before ola contend otherwise. case, contention that Dr. jury rejected plaintiff’s

In this negligent. (and, vicariously, Loyola) professionally finding appeal. jury The ac- plaintiff challenge does not this institutionally cepted plaintiff’s contention that however, court, jury’s findings concluded the negligent. The circuit n.o.v., inconsistent, judgment motion for granted Loyola’s were challenges ruling. this plaintiff vacated the verdict. The in those “only A n.o.v. should be entered judgment motion for evidence, aspect when viewed in its most cases in which all of the overwhelmingly favors movant that no so opponent, favorable could ever stand.” Pedrick v. contrary verdict based on that evidence (1967). Co., 494, 510, 37 Ill. 2d 229 N.E.2d Peona & Eastern R.R. Yorkv. Luke’s Rush-Presbyterian-St. of review is de novo. Our standard (2006). Center, 147, 178, 222 Ill. 2d 854 N.E.2d 635 Medical Negligence Institutional I. decision, Loyola puts the trial court’s forth support affirming (1) jury should not have considered the arguments:

thrеe (2) time-barred; the claim was negligence claim because failed to establish proper n.o.v. was because judgment (3) because the failed breach; and, proper n.o.v. was judgment to establish cause. contentions, we ad the merits of addressing

Before the first two has waived plaintiff’s assertion dress third, it failed to obtain a contentions, if also the because 1202(f) in violation of section ruling in the circuit court conditional 2— Procedure, requires the circuit court which of the Code of Civil motion].” sought posttrial [in relief conditionally on the other “rule 2006). 1202(f)(West motion, which Loyola’s posttrial 735 ILCS 5/2-— cause, breach, did not timeliness, of raised the issues forth Rather, posttrial motion set other forms of relief. seek Consequently, judgment n.o.v. for the same alternative bases relief— n.o.v. are not judgment the upholding bases for Loyola’s alternative 1062, 1070, 506 Co., 3d App. 153 Ill. v. Guardian Varady waived. 90, 97, 476 Ill. 3d (1987); App. 132 Plogger, Ralston v. N.E.2d 708 (1985). in turn. each 1378 We address N.E.2d

A. Time-Barred Loyola points plaintiff’s original the and amended out complaints allege Loyola any independent did not specifically breached view, duty and, only care was liable alleged Loyola vicariously of in its alleged as malpractice. argues, Dr. Parvathaneni’s “Even attempted later suming complaint [a Plaintiff to amend her at date], any negligence against Loyola claim of institutional be would medi Loyola points time barred.” out the statute of limitations for a (735 212(a) (West 2004)), malpractice years cal claim is two ILCS 5/13— any and argues negligence institutional claim would not “relate back” 616(b) original complaint of the under section Code of Civil 2— (735 616(b) (West 2004)). Procedure ILCS 5/2 — 616(b) provides: Section 2— action, any

“The up cause of cross claim or defense set in pleading by lapse any amended not be of time shall barred under ***prescribing limiting statute or the within action time which an may right asserted, be brought prescribed or if the time limited or expired filed, had not the shall original pleading when and if it appear from original pleadings and amended that the cause of asserted, action defense or claim in the interposed or the cross pleading grew amended out of the same transaction or occurrence 616(b) (West up set in original pleading ***.” 735 ILCS 5/2— 2004). 616(b) Loyola mistakenly relies on section and institutional 2— addressing cases See, e.g., Frigo relation-back doctrine. Center, 62, v. Cross Hospital App. 43, Silver & Medical 377 Ill. 3d (2007) N.E.2d (plaintiff’s negligent credentialing claim related original back her pleading specifically alleging hospital commit negligence); Hospital, ted Carle Weidner v. Foundation 3d 713, (1987) 710, allegation hospital 512 N.E.2d 824 (plaintiffs that the breached its not her care did relate back to original complaint alleging vicariously hable for the malpractice). 616(b), provision doctor’s The relation-back section 2— terms, very only action, its cross applies “cause[s] cases where beyond period claim[s] defense[s]” are raised the limitations 616(b) (West “any 2004); pleading.” amended 735 ILCS Porter v. 5/2 — (2008). Memorial Ill. Hospital, Decatur 882 N.E.2d 583 case, against this claim any did raise new Rather, original an pleading. plaintiff’s amended and amended complaints, both the two-year period, filed within limitations contained allegations Loyola, other pleadings same and no amended Simply stated, were filed. has no application the relation-back doctrine in this case. however, timely filed relevant, plaintiffs is whether the

isWhat put Loyola facts to on notice complaint contained sufficient amended negligence. it hable for institutional plaintiff sought the to hold complaint alleged Loyola and Dr. Parvathan plaintiffs amended heart, test, diagnose the and properly inspect, and donor eni failed to of care.” deviated from the standard “[o]therwise that both defendants an complaint expressly did not assert Although the amended notice of against Loyola, Loyola claim was on negligence institutional of trial. In her long before the commencement theory liability this of (210 213) response, the Rule 213 Ill. 2d R. Supreme Court Avery’s very point. on this opinion disclosed Dr. Center, institu- Loyola University Medical as an

“9. Defendant within the heart through physicians practicing the tion and unit, duty physician to ensure that each transplant had his or her role transplant in heart team understood participant the the him her in the assessment of expected of and what was from the standard transplant. heart for This was a deviation donor Loyola University Defendant Medical Center.” part of care on the of Avery testifying from about motion in limine to bar Dr. the Loyola understood that negligence confirms that institutional theory liability. of proceeding separate under this plaintiff was plaintiff’s reject Loyola’s contention that We time-barred. negligence claim was B. Breach Duty of case, duty to hospital owes a “[a]

In an institutional risk.” An light apparent in to exercise reasonable care patients its 486, 493, Hospital, Northwestern Memorial drews v. Community (1989), citing v. Proctor Ohligschlager N.E.2d (1973). Here, “apparent 55 Ill. 2d 303 N.E.2d 392 Hospital, significant hypertrophy would be that a donor heart with risk” was risk, In order to avoid this accepted transplantation. that each member of the had a to ensure

asserts evaluating the donor of his role in transplant fully team was aware transplantation.1 heart for been should have plaintiff, Dr. Parvathaneni

According to the team, included role, part of the informed that his as simply harvesting, transplantation heart for evaluating after evalu- donor. Had Dr. Parvathaneni examining the heart while the same have made harvesting, likely he would the heart after ated care, itself, was not claim that the standard 1Loyola makes no procuring testimony that the light Foy’s by the evidence established transplantation. evaluating donor heart for surgeon charged with the donor that it observing observation Dr. made after first ‍‌‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​​​​‌​​‌‌​​​​​​‌​​​‌​​‌‌‌‌‍Avery, plaintiffs expert, explained was a heart!” Dr. “Hypertrophic that had Dr. Parvathaneni evaluated the heart after it was removed he thick significant hypertrophy would have found: “a heart of plaque considerable the coronaries.” Dr. Parvathaneni testified that removed; he, hypertrophy easily can most be felt the heart is after however, manually was not trained to the heart after removal. inspect removal, bring organ After his role was “to as fast as could” [he] to Loyola. According Foy’s deposition to Dr. he testimony, “surprised” by description Parvathaneni’s of his role because Dr. played much greater evaluating a role in the donor heart. In his deposition, Dr. Mullen characterized Dr. Parvathaneni’s role in evaluating the donor fied, Loyola Avery heart as “enormous.” As Dr. testi- duty

owed a Longnecker reasonable care to Mr. to removed, ensure that before his native heart was the donor heart was acceptable evaluated as for transplantation by each member of the transplant team.

Against record, Loyola arguments this makes three to challenge jury’s the finding of of duty. breach

First, Loyola argues there is no evidence it knew or should have known about Dr. Parvathaneni’s noncompliance transplant with procedures. Curns, Loyola 734, cites Pickle App. v. 106 Ill. 3d (1982), N.E.2d 877 Reynolds Hospital, v. Mennonite App. 168 Ill. 3d 575, (1988), Shivde, 522 N.E.2d 827 181, and Rohe v. App. 203 Ill. 3d (1990), 560 N.E.2d 1113 as support. Pickle, plaintiff

In the sued the doctor and hospital, alleging the injuries he suffered as a result of therapy. electroconvulsive The plaintiff specifically alleged the doctor administered the therapy a manner that did not comply hospital’s with the policies, and the hospital procedure allowed the to performed poli be violation of its dismissed cies. The circuit court the complaint and we affirmed. We held the complaint properly dismissed because the failed allege to hospital the knew or should have known the doctor would policies. violate its Our decision in Holton v. Hospital, Rеsurrection 659, App. (1980), Ill. hospital N.E.2d 969 which held that a duty has a to use qualifications reasonable care discern the medical of those practicing hospital within the and that a hospital breaches that duty practice where it allows a doctor to where it knows should know the unqualified, provided authority holding. doctor is for our “recognize We refused to the existence duty part of a on the of the hospital’s administration to insure physicians that each of its staff will care,” always perform duty his of due because that would amount to Pickle, requiring hospital to act as an insurer of patient’s safety. 106 App. Ill. 3d at 739. Rohe, Reynolds

Similar claims were raised in and Rohe. 203 Ill. App. (alleging hospital pediatrician 3d at 200 the defendant allowed a practice pediatrician hospital policies); violated several where Reynolds, App. (alleging hospitals 168 Ill. 3d at 577 the defendant supervise failed to review and the doctors’ work where the doctors misdiagnosed plaintiffs performed unnecessary surgery). cases, hospitals summary judgment held the entitled to both we were plaintiffs allege hospitals because the failed to of the were aware Rohe, 203; Reynolds, App. doctors’ actions. 3d at 168 Ill. 3d at 578-79.

Pickle, Reynolds, and Rohe do not control this case. Each of the three “rogue” practicing cases involved a doctor medicine in violation by of the policies hospital. set forth Unaddressed in those cases is the issue here —whether the adequately working informed a doctor of his duties while as a member allegation against Loyola of a team of doctors. The is not that Dr. Par- Rather, vathaneni harvested hearts in policies. violation allegation is that never informed Dr. Parvathaneni that his duty harvesting surgeon encompassed “evaluating as a a heart for transplantation.” plaintiff’s claim of reasonable care owed transplant was not to insure that each of the heart member always perform duty patient; team will his care to his reasonable rather, contends breached its to ensure Dr. of the team part Parvathaneni knew his role as simply to examine but to evaluate the donor heart. Second, Loyola argues proffer any “failed to evidence Loyola something differently respect that if had done with to the Parvathaneni, alleged noncompliance or his training supervision of Dr. contention, by linking Loyola’s would have been discovered.” “training or of Dr. Parvathaneni” supervision shortfall discovery alleged noncompliance, point. of the misses the As we have above, discovery “alleged made clear it is not the of Dr. Parvathaneni’s issue; rather, Loyola that is at at issue is noncompliance” policy with a Loyola’s alleged to ensure Dr. was aware of its failure surgeon evaluating a role in the heart policy procuring that the had transplantation. for conclusory. Dr.

Finally, Loyola argues Avery’s testimony Dr. Avery deposition testimony Dr. Parvathaneni’s conflicted with testified procuring of the Foy regarding that of Drs. and Mullen role the standard of care surgeon. According Avery, Loyola to Dr. breached in terms of what page needs to be on the same “everybody because “To According Loyola, is in the team.” to each team member’s role burden, Avery explain specifi- to sustain Plaintiffs Dr. cally Loyola allegedly applicable how breached the standard of care—to identify Loyola ‘reasonably what failed to do that a careful’ would have done under similar circumstances to ensure that individual Transplant respective members of the Team understood their roles.” Loyola again Reynolds. relies on above,

As discussed Reynolds summary judgment affirmed favor of the defendant hospitals plaintiffs because the failed to establish the hospitals defendant knew or had reason to know of the doctors’ al leged malpracticе. The court testimony also addressed whether from the plaintiffs’ expert was hospitals’ sufficient to establish the knowledge. held it Although expert opined We was not. that the hospitals should have known of the doctors’ improper diagnoses of thoracic syndrome, outlet the plaintiffs allege any failed to facts “to opinion.” substantiate that Reynolds, Thus, Ill. App. 3d at 579. Reynolds, expert asserted a conclusion without support factual that the hospital should have known of the doctors’ noncompliance through proper review.

Here, the facts underlying Avery’s opinion go Dr. directly to the claimed by Loyola breach duty its of reasonable care owed to Mr. Longnecker that each team member evaluate the heart transplan- for tation. Dr. Parvathaneni testified he was not trained to “evaluate” the donor heart for hypertrophy even though such an evaluation could be quickly made Foy’s based on Dr. immediate observation after remov- ing the donor heart from transport “Hy- container that it was a pertrophic heart!” Drs. Foy and Mullen each provided deposition testimony that Dr. Parvathaneni had an enormous role in evaluating the donor heart transplantation. This enormous role Dr. Par- vathaneni was expected play in evaluating the dоnor heart for transplantation by is confirmed Foy’s Dr. decision to Long- remove Mr. necker’s heart he personally viewed the donor heart. before Avery’s Dr. opinion Loyola breached the standard care fail- ing to ensure that each member of the transplant team evaluated the donor heart had sufficient factual support the record to establish breached its Longnecker. of care to Mr.

C. Proximate Cause argues next failed to establish cause. Loyola argues “there was no evidence that if had done something differently respect with the training supervision of Dr. Parvathaneni, then Dr. Parvathaneni and rejected would have the donor heart for transplantation in Mr. Longnecker.” authority As proximate its “no contention, cause” Loyola relies on Snelson v. Kamm, 204 Ill. 2d (2003), 787 N.E.2d 796 a case not involving a claim of negligence. care, a Snelson, under Dr. Kamm’s Snelson underwent aroteriogram,

“radiological procedure aortogram known as an by radiologist practicing hospital,] at the to determine [performed a Snelson, blockages.” 204 Ill. 2d at 10. The location arterial difficulty inserting “the procedure was terminated because of Snelson, Kamm, guide general surgeon, wire.” 204 Ill. 2d at 10. Dr. completed informed that the test was not and that Snelson complained pain following of back and abdominal the unsuccessful Snelson, procedure. 204 Ill. 2d at 11. After ameliorative treatments day the course of a and a half to address Mr. Snelson’s severe over exhausted, emergency pain performed abdominal were Dr. Kamm large the small and exploratory surgery, portions which revealed trial, that the “unsuc loops radiologist opined bowel were dead. At *** aortogram portions cessful caused the death of of Snelson’s Snelson, 204 Ill. 2d at 15. intestine[s].” against The action was based on Snelson’s claim that attending negligently they nurses failed to inform Dr. Kamm that one and that Snel had inserted a catheter before Dr. Kamm ordered This, contended, high pain. levels of Snelson af experiencing son was Snelson, 204 Ill. 2d fected the treatment he received from Dr. Kamm. hospital, at 13. After a verdict was returned Dr. Kamm and judgment hospital, finding the circuit court entered a n.o.v. for the no alleged causal connection between the failures of the nurses and the Snelson, by Dr. Kamm. 204 Ill. 2d at 13. medical treatment rendered ap supreme granted The court affirmed. The court leave to appellate peal. that the supreme began court its discussion of Snelson’s claim on the record

judgment n.o.v. was error with observations based expert that he no acknowledges presented evidence. “Snelson testimony indicating hospital’s] conduct was a [the that Kamm testified that no injury. acknowledges cause of his He also nursing his course of treatment act or omission of the staff affected Nevertheless, argues question ***. Snelson that a of fact as sufficiently by the evidence.” proximate cause was established Snel son, at 42.

Here, assert, nor it based on the record before Loyola does not can in the evidence. us, acknowledges similar shortfalls that the Loy- nonetheless address factually distinguishable. is thus We Snelson cause Sne/son-type analysis, proximate under a ola’s contention that was not shown here. Loyola, Foy’s to Dr. decision to

According to as “[E]ven one conclusion: supports the record evidence but donor hypertrophy expected more than Dr. though the donor heart had based on the echocardiogram, Foy Dr. decided that the heart was ac- ceptable Thus, transplant Longnecker.” for in Mr. argues, by because the donor heart was found acceptable transplantation for Dr. Foy, there was no causal connection between Dr. Parvathaneni’s failure to evaluate the Foy’s heart after harvest and Dr. decision to transplant the donor heart.

It is true Foy that Dr. testified that he decided the heart was suit- able for transplant using and that he had alternative of an option artificial heart if he found donor unacceptable. Loyola heart however, ignores, that jury Foy’s deposition also had before it Dr. testimony heart, that once he Longnecker’s removed Mr. native “the cast, die is [there is] no choice implant [the donor] but to heart.” The discovery by Foy Dr. that the donor heart was hypertrophic simply too late once the donor heart “operative jury was on the field.” The also heard the testimony Higgins, of Dr. expert an called on behalf of Loyola, that he would not transplant a heart hy- with two-centimeter pertrophy and coronary severe 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 jury question whether the alleged breach institutional proximately standard of care caused the death of Mr. Longnecker.

Our proximate conclusion that question cause was a of fact for the jury supported by by conclusion reached the supreme court in Jones on the issue of cause in an negligence institutional Jones, case. In response in Chicago to argument HMO’s there was no causal connection between Shawndale’s claim and the failure Chicago HMO to schedule appointment a needed in which Shawn- dale’s illness discovered, would have been the court observed: can “We easily infer from this record that Dr. Jordan’s failure to see Shawndale resulted inability from an to serve an overloaded patient population. A lay juror can discern that a physician who has patients thousands more than he should will not have time to service them all in appropriate an Jones, manner.” 191 Ill. 2d inference, at 301. This reasonable along with additional evidence in the Chicago record that HMO was solicit ing patients, more the supreme concluded, court presented a material question of fact to summary judgment overcome “on Jones’ claim of for assigning many patients too to Dr. Jordan.” Jones, 191 Ill. 2d at 304. here, jury

Likewise Foy could have inferred that Dr. removed Longnecker’s Mr. heart, native not because it was in worse condition than the hypertrophic heart of the donor but because he relied on Dr. Parvathaneni to have informed him if the donor hypertro- heart were is, diagnostic in greater degree to a than indicated tests

phic, that claims, Loyola properly conveyed had of the donor. As the part Dr. as of the team his duties Parvathenani harvest, evaluating leading included the donor heart thus after heart, discovery significant hypertrophy of the in the donor “then Dr. Foy rejected transplantation would have the donor heart for Mr. heart, Longnecker.” severity hypertrophy That the the donor by Foy immediately upon removing detected Dr. the heart from the container, transport Foy a shock to Dr. is revealed the exclama- “Hypertrophic operating tion notation of heart!” in his notes. The jury he Foy’s testimony was not to believe court that found the acceptable transplantation deposition over his testimony that once he removed Mr. native he implant jury “had no choice heart.” The was free to [the donor] but draw the inference from the evidence that Dr. would have choice, “implant[ed] properly that heart” had he had a real ‍‌‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​​​​‌​​‌‌​​​​​​‌​​​‌​​‌‌‌‌‍which a given trained Dr. Parvathenani would have him.

Accordingly, there was a causal connection between entire was “on the same failure ensure that the team death, page” by transplantation and Mr. caused the of a nonfunctioning heart.

Finally, the circuit court’s conclusion that a verdict in favor of Dr. showing cause the precluded proximate a as to claim, case, is, in negligence simply institutional the context of this put, wrong. supreme expressly “Liability Our court has stated: the predicated hospital’s negligence, [institutional] on the own not negligence Jones, Ill. 2d at 292. physician.” “[T]he of the 191 tort whatsoever, negligence encompass, hospital’s institutional ‘does not a ” *** Jones, responsibility professionals.’ for the conduct of its medical Advincula, 2d 176 Ill. 2d at 31. quoting 191 Ill. at liable, jury To the would had to hold Dr. Parvathaneni have professional conclude that he deviated from the standard of care procuring surgeon Loyola a is held. The standard of care for as which required showing to the institutional claim of what a negligence reasonably would do under the circumstances of this hospital careful If, fact, concluded, judge case. in as the circuit before institutional found, negligence part on the of Dr. negligence professional can be found, professional negligence Parvathaneni must be the claims of and single theory conflate into a of vicari- negligence institutional would malpractice of medical liability. ous Dr. Parvathaneni’s commission Par- liability Loyola, principal on as to Dr. impose would vicarious vathaneni, negligence against and render the claim institutional claims, however, our independent, are as Loyola pointless. The two supreme сourt jury has made clear. Because the found favor of Dr. Parvathaneni, it jury does not follow that the was compelled to find favor of on negligence the institutional claim. See Collins v. Roseland Community Hospital, App. 766, 775, 579 N.E.2d (1991) (verdicts not inconsistent provided because care at professionals involved health “requiring differing degrees of care”). care subject to differing standards of Under the facts of this case no such required. outcome was jury properly instructed that alone could be found liable under the institu tional negligence theory jury and the so found.

The circuit judge, concluding the verdict in favor Dr. Parvathan eni and against the verdict stand, could may have been thinking of a case like Frigo, plaintiff where the negligent asserted a credentialing claim in the context of institutional negligence, involving a podiatrist, a nonemployee of the hospital. Frigo, App. Ill. 3d 43. If plaintiff the successfully established a deviation of the standard of care of the hospital resulting in wrongly extending credentials to the podiatrist, then to establish cause for the injury inflicted on plaintiff the podiatrist the independent claim, institutional plaintiff would also have to podiatrist establish that the commit ted medical malpractice gave rise to plaintiffs injuries. Frigo, Ill. 3d at 74-75. If podiatrist did not commit medical negligence, there would be no causal connection hospital’s between the action in negligently giving surgical privileges podiatrist injuries Frigo, suffered. 377 Ill. App. 3d at 75.

Frigo, is much like Reynolds, upon the case which the dissent so heavily relies. In case, each to prove malpractice by the offending In Frigo, doctors. the plaintiff had to prove the podiatrist committed malpractice in order to succeed on her claim hospital. In Reynolds, the plaintiffs were prove to only that the surgeons “were negligent in their diagnoses of these plaintiffs” but hospitals “that the should known, have through proper procedures, review that the surgeons improperly were diagnosing syndrome.” thoracic outlet Rey nolds, App. 168 Ill. 3d at 579.

Here, the plaintiff’s institutional claim Loyola’s was based on deviation from the care, standard of any not on claimed deviation of standard of care Dr. fact, Parvathaneni. In jury found Dr. Parvathaneni did not commit malpractice, medical a supported verdict by the evidence as the concedes. The plaintiff’s focus of the institutional negligence claim against Loyola entirely is training Parvathaneni, of Dr. harvesting surgeon as the of the heart transplant team. Even if “notice” under Reynolds were at the crux of claim, Loyola suggest that it did disingenuous it is plaintiff’s was not trained to evaluate

not have “notice” that Dr. Parvathaneni Loyola itself trained Dr. Par- harvesting donor after when heart harvesting surgeon of the in his role as the vathaneni Loyola had no notice than that plausible It is no more such team. in its transplants taking place were Loyola was unaware heart clear, neither Rey- made the instant case is like hospital. As we have Frigo. nolds nor Hospital Medi Aguilera

The dissent intimates that v. Mount Sinai Center, (1997), guid provides 293 Ill. 3d 691 N.E.2d cal in this case.2 find no factual similarities proximate ance on cause We There is a life and death dif between and the case before us. Aguilera scan that delay ordering ference a claim based on a a CT between might not be hemorrhage might a would have revealed brain (albeit, functioning heart operable Loyola and a claim that removed a year) one gave Longnecker surviving Mr. a 30% chance of one that Longnecker’s nonfunctioning resulting a Mr. replaced it with days death four later. jury for the to determine whether there was sufficient

It was there was a duty by Loyola evidence of the breach of and whether link Based on Longnecker’s that breach and Mr. death. causal between may inferences that be drawn the record evidence and the reasonable therefore, contrary “no based on that evidence say we cannot verdict Pedrick, 510. not entitled to could ever stand.” 37 Ill. at judgment n.o.v. on cause.

II. Inconsistent Legally Verdicts are not inconsistent Dr. Parvathaneni contends verdicts involved in medical because different standards of care are (1991) Collins, App. 3d at 775 negligence. (verdicts involved provided because care at not inconsistent legal significance observations that “there

2Wefind no dissent’s lived; long long it expert testimony the decedent could have how no of how donor; placed on a or if the decedent was would have taken to obtain a new heart, long Jarvik-type the decedent could have lived with artificial how Foy’s to remove App. 3d at 899. Much like Dr. decision artificial heart.” 383 Ill. discovering hypertrophic the donor’s Mr. heart before sequence of questions analysis too late in the unanswered focus the dissent’s Longnecker’s native heart should plaintiff’s claim is that Mr. events. The replace all had to in the first instance when never have been removed would not limited measures that hypertrophic heart or other it with was position in before he was admit Longnecker he was have returned Mr. transplant. ted to for a heart

897 subject to degrees of care and “requiring differing professionals health cаre”). contends the verdicts are plaintiff of The differing standards “ found to exist [was not] ‘the same element not inconsistent because ” 622, 649, Socha, 837 N.E.2d 216 Ill. 2d and not to exist.’ Redmond v. 2004). (8th Loy ed. (2005), Dictionary Black’s Law quoting any pos of Dr. Parvathaneni broke “[t]he ola contends verdict favor link conduct and Mr. sible causal between injuries.” reasoning judge is in of the circuit

Loyola’s argument effect in favor of Dr. that the irreconcilable because the verdict verdicts were showing cause the claim precluded rejected. Loyola presents no ad- against Loyola, already which we have that we need address on its claim of inconsistent argument ditional verdicts. verdicts, holding legally that a inconsistent under

We also note supreme precedent, court mandates that both verdicts be vacated and Redmond, against Loyola a new and Dr. trial ordered Parvathaneni. (“once juiy 216 Ill. 2d at 651 a trial court determines that verdicts are legally inconsistent, grant up whether a new trial is trial mandatory”). jury court’s discretion. It is found failed to her case does prove against Dr. Parvathaneni. The agrees not contest this verdict but with Dr. Parvathaneni’s contention jury that “there was evidence from which the could conclude that Par negligent.” Vacating jury’s vathaneni was not verdict in favor of remanding Dr. Parvathaneni and for a new trial him would be unjust in this case.

CONCLUSION above, For the reasons stated the order of the circuit court Cook County proceed- is reversed and the matter is remanded for further ings opinion. consistent with this

Reversed and remanded.

CAHILL, PJ., concurs. GORDON, E. dissenting: JUSTICE ROBERT they I from where find respectfully majority opinion dissent against Loyola case plaintiff proved that an institutional judge’s I decision University (Loyola). Medical Center believe the trial affirmed; however, were not agree should be I the verdicts inconsistent. held long recognized hospitals may

Illinois has be liable their negligence. Darling own v. Charleston Community Memorial Hospital, (1965), 33 Ill. 2d our Supreme Illinois Court acknowledged independent duty an of hospitals responsibil to assume ity for the care of their patients. “Ordinarily, this is administra tive or managerial character.” Chicago Jones v. HMO Ltd. Il of linois, 278, (2000), 191 citing Ill. 2d 291 Advincula v. United Blood (1996). Services, 1, 176 Ill. 2d 28 duty, hospital To fulfill its a must act “reasonably as a hospital” careful would under similar circumstances. Advincula, Liability 176 Ill. 2d at 29. predicated hospital’s on the negligence, own negligence Jones, not the of physician. 191 Ill. 2d independent at 284. This negligence of the hospital is known as institutional corporate negligence. direct negligence case, a medical prove a by preponder must (1) (2) ance of the evidence that: duty care; defendant owed a of (3) the defendant duty; breached that the plaintiff’s resulting injury or death proximately was caused the breach. Hooper v. (2006). Cook, County 1, 366 Ill. App. 3d 6 I find no evidence in the record of this case of either a breach of or causation. Plaintiff’s expert, Avery, Dr. Loyola testified that breached its duty because “basi cally everybody needs to on the page be same in terms of what each team member’s role is in the Avery’s team.” Dr. testimony concerning the “same page” based on the Foy was fact that Drs. and Mullen procuring described the role of a surgeon under the system dif ferently than Reynolds Dr. Parvathaneni did. Hospital, v. Mennonite (1988), 168 Ill. App. 3d 575 is instructive as to whether the evidence in this case support could a verdict Loyola for its claimed failure to instruct Dr. Parvathaneni about his role the heart transplant team. In plaintiffs alleged Reynolds, hospital that the institutionally negligent it implement because failed to or follow standards of competency surgeons review to ensure the of its diagnose syndrome. thoracic outlet Reynolds, App. 168 Ill. 3d at 578- appellate 79. The court affirmed the court’s entry summary trial judgment hospital for the there because was no evidence that would placed have hospital any malpractice by on notice of surgeons. Reynolds, Apр. 168 Ill. In Reynolds, plaintiff’s expert 3d at 580. opined known, that the hospital through proper should have review procedure, surgeons improperly that its were diagnosing thoracic syndrome; outlet but the trial court concluded plaintiff’s expert’s testimony was insufficient because there no were facts to opinion. substantiate that Ill. Reynolds, App. 168 3d at 579-80. See (1990) Shivde, 181, App. (plaintiff also Rohe v. 203 Ill. 3d presented no evidence the hospital perfor failed to review the mance of the attending pediatrician compliance as to her with infants). policy examining newborn bar,

In the case at there was no evidence that knew or should Loy have known if Dr. Parvathaneni had ever deviated from ola’s policies or did not understand his role on transplant expert identify team. Plaintiff’s needed to what failed “reasonably to do that a careful” have done hospital would Advincula, under similar circumstances. 176 Ill. 2d at 29.

However, element, even if able to show second namely, care, a breach of the standard of there was no evidence of the element, third namely, a causal relationship alleged between an breach “ of duty and the death at ‘[I]n issue. order to sustain the burden of proof, a plaintiffs expert must degree demonstrate within a reasonable certainty mеdical that the defendant’s breach the standard of ” care is more probably than not the injury’ cause of the Bergman v. 612, Kelsey, App. (2007), 375 Ill. 3d quoting Nelson, Knauerhaze v. (2005). Even if Dr. Parvathaneni properly had been advised of his role to evaluate the donor’s heart for purposes and advised Dr. Foy of his findings, there is no evidence that Dr. would not have used the donor’s heart. Plaintiffs expert, Avery, testified if that Dr. Par- evaluated, vathaneni had the donor heart after it was removed and before he made phone the “final Foy, call” to Dr. he would have found what Dr. Foy later found: “a thick significant heart of hypertrophy and considerable plaque in the though coronaries.” Even the donor heart had more hypertrophy Foy than Dr. expected based on the echo- cardiogram, Foy Dr. knew this and still decided that the heart was ac- ceptable to transplant Foy rejected decedent. Dr. option the using an artificial Foy heart instead.3 Dr. made his decision based on grave the decedent’s medical resulting failing condition from his heart. The evidence in the record further indicates that after the heart removed, Dr. Parvathaneni found even hypertrophy more than he initially observed. The record contains no medical testimony concern- ing the effect of those significanсe observations or their medical causation.

After Dr. Parvathaneni removed donor heart and made the telephone hospital, call to the Foy Dr. removed the decedent’s heart placed the decedent on the heart machine. If the donor’s heart used, had not been there is expert testimony long no of how lived; decedent could have how it long would have taken to obtain a donor;

new or if the placed decedent was on a Jarvik-type artificial long how the decedent could have lived with the artificial heart. suitable, 3If Dr. found that the donor’sheart was not he testified he placed Jarvik-type couldhave the decedenton a artificialheart.

900 a medi- complex malpractice

This was a medical case that expert’s opinion cal basis for the breach was a death, cause of the decedent’s and it is not found in this record. Avery’s testimony concerning causation was limited the fol- lowing:

“Q. Was Mr. death caused as a result of the devia- today? tions from the standard ‍‌‌​‌‌​​​‌​​‌‌​‌‌‌​​​‌​​​​​‌​​‌‌​​​​​​‌​​​‌​​‌‌‌‌‍of care that we talked about they IA. believe are.” result, opinion,

There was no basis for that and as a the element of lacking. expert’s opinion only causation was “An as valid as the Fuels, Inc., opinion.” reasons for the Wilson Bell 214 Ill. basis and v. 868, (1991), App. citing Maplehurst 3d McCormick v. Winter (1988). Ltd., 93, lay a Sports, Aрp. party 166 Ill. 3d “A must reliability foundation sufficient to establish the of the bases for the 22, (2008), Thedos, expert’s opinion.” App. Petraski v. 382 Ill. 3d (2001). Williams, 541, citing App. Turner v. 326 Ill. 3d 552-53 Center, Hospital App. v. Mount Sinai Medical 293 Ill. Aguilera (1997), plaintiffs emergency 3d decedent was taken to the six complaining right body. room of numbness on the side of his About taken, later, revealing or seven hours scan was a brain hemor CT days died rhage. Aguilera, App. patient 293 Ill. 3d at 969. The a few App. presented experts 293 Ill. 3d at 969. Plaintiff two Aguilera, later. taking emergency physician’s delay who testified that the room App. death. 293 Ill. 3d at 969. Aguilera, CT scan caused decedent’s plaintiffs theory diagnosis It was the that a of the condition would decedent’s death. triggered surgical prevent have intervention to However, cross-examination, 293 Ill. 3d at Aguilera, App. 969-70. they neurosurgeon to a plaintiffs experts admitted that would defer yet only surgery performed; as to whether should have even been surgery would not neurosurgeons testifying the case stated that 969-70. This court appropriate. Aguilera, App. have been 293 Ill. at lacked a suf opinions plaintiffs experts held that the offered conjecture. Aguilera, ficient factual basis and were therefore based on 3d at 975. concerning in the record breach just enough There is not evidence trial reverse the decision of the and causation for this court to court. I affirm. would

Case Details

Case Name: Longnecker v. Loyola University Medical Center

Court Name: Appellate Court of Illinois

Date Published: Jun 25, 2008

Citation: 891 N.E.2d 954

Docket Number: 1-06-1536

Court Abbreviation: Ill. App. Ct.