Onа Stogsdill sued Dr. Hiatt (formerly her physician), the Manor Convalescent Home (in which she had been a patient), and Irene Genetske (a co-owner and supervisor of the Home), for damages suffered by her when her left leg was amputated as a proximate result of allegedly deficient medical and convalescent care. At the close of the plaintiff’s case, the court directed a verdict for the Home and Genetske, and the case proceeded to verdict as to Dr. Hiatt. The jury found for the plaintiff and against the defendant and assessed the “general damages” at $40,000, and the “punitive damages” at $80,000. The court, after hearing and denying post-trial motions, entered judgment on the verdicts. Dr. Hiatt appeals from the judgment against him,
The Facts
In 1968, Mrs. Ona Stogsdill, a stroke patient, came to five in the Manor Convalescent Home in Glen Ellyn, Illinois. In 1971, her son notified the Manor that Dr. Hiatt would be her doctor. Early in August, 1972, she developed a decubitus ulcer on her left ankle. Some time before November 7, 1972, gangrene developed; one of the nurses at the nursing home testified she noticed gangrene in August or September.
At the trial, the defendant presented no evidence and the only witnesses were those called by the plaintiff. Dr. Hiatt had been a general practitioner in Illinois for 46 years and in that time had become familiar with the care and treatment of cardiovascular patients and stroke
On November 6, 1972, for the first time he prescribed terramycin. He also gave her some empirin.
Dr. Hiatt agreed that it is important that the site of the ulcer be kept clean and free from germs. Urinary incontinence could aggravate an ulcer if it reaches the site of the ulcer. He did not, however, prescribe an indwelling catheter; elderly people do not do so well with indwelling catheters. The accepted medical standard of treatment for a decubitus ulcer is antibiotic ointment, cortisone ointment. Lately they have tried sugar. Improvement of the nutritional status is an important factor. All elderly people should be on a high protein diet; a high nitrogen diet and plenty of meat which is what he gives all his elderly patients. A high vitamin diet is necessary. He agreed that the Merck Manual, which he followed tike a Bible, suggested the matters just mentioned as a course of treatment including I.V. injection or protein hydrolysates. When plaintiff’s counsel asked if the Merck Manual recommended that large doses of antibiotics be used, Dr. Hiatt answered that you have to be careful with older people in giving them large doses. He admitted that he did not order an antibiotic until November 6, 1972.
Barbara Watts, who has been a registered nurse for 26 years, worked at the Manor from April or May of 1971 through January, 1973; during that time, she had occasion to know and care for Ona Stogsdill. Refreshing her memory from the medical reports, she noted that Dr. Hiatt saw Mrs. Stogsdill on August 24, 1972. He told her to elevate her leg
On September 15, 1972, Mrs. Stogsdill was feeling a little better. She kept bending over to fuss with the bandages on her ankle and appeared as if she was going to fall out of the wheelchair. The witness called Dr. Hiatt and he ordered a safety belt restraint. On September 28, 1972, she leaned so far forward in her chair she almost did fall out. So they put two restraints on her. She was quitе weak at that time and needed assistance with her feeding. However, Mrs. Watts did not call Dr. Hiatt and advise him of it. On October 7, Mrs. Stogsdill was feeling a little stronger and did not need the safety restraints. She accused them of trying to murder her. Testifying from the entry from October 13, she testified that Mrs. Stogsdill was usually wet from urine, not soaked but slightly wet and her foot was becoming a little more swollen. On October 20, 1972, she was complaining of pain in her leg and foot. Indeed Mrs. Stogsdill had numerous physical complaints which she would relate to the doctor on every visit; the ankle was included on her list of usual complaints from August on. On October 28, she wriggled out of her safety belt and was found leaning forward in her chair; she appeared to be asleep or unconscious. She got angry with the nurse because the nurse would not let her take the bandage off of her ankle. She was weak at that time. Mrs. Watts would not consider Mrs. Stogsdill a problem patient however; while she created problems, it was not unusual. Mrs. Watts did believe that the area of the sore would become more irritated with her fussing with it. One of the reasons Mrs. Watts
Mrs. Watts first noticed the foul odor from the sore of the ankle in September or the first of October. It was undescribable. It was noticeable. The odor was the same from the time she first noticed it until the time Mrs. Stogsdill left the nursing home. Mrs. Watts, in the course of her experience as a registered nurse, has had occasion to see, understand, and recognize necrotic tissue and gangrene. She first noticed the gangrenous condition in Mrs. Stogsdill’s foot in August or September, 1972. She did not tell Dr. Hiatt. As she stated, “I don’t tell physicians the condition — the diagnosis of their patients.” It also was not her job to notify the person responsible for a patient of the condition of that patient. It was the job of the administrator of the nursing home. It was, however, just as much her responsibility to contact someone if there was an emergency problem as it was anybody else’s.
On cross-examination she indicated that there can be a difference between necrotic tissue and gangrene. The areas that were healing had some necrotic tissue around them. It appeared to be healing slightly around one of the edges, looked as if it was going to heal. This opinion of hers changed in time. Mrs. Watts always cleansed the sore, when changing a bandage, with hydrogen peroxide. She acknowledged that the first written entry she made concerning the odor was on November 3, 1972.
Mrs. Watts also testified (the court instructing the jury that this testimony was not admissible as against Dr. Hiatt) that other employees had conversed with her in regard to the odor or the smell of the condition of Mrs. Stogsdill’s foot. This was on more than one occasion. However, she did not recall the dates.
Mrs. Genetske, the owner, operator and president of Manor Convalescent Home, was called under section 60. She is a licensed practical nurse. She assisted in thе care and treatment of the patients. She is on the floors all the time and supervises the aides, the registered nurses, takes care of the treatments and medicine. The Manor is an intermediate care facility. There are certain rules and regulations of the Illinois Department of Public Health that pertain to the home; it is run in accordance with those rales. In conformity with the rales they keep medical records. (The court allowed the use of the records as refreshing recollections, but refused to allow them or any part of them in as business records, even those portions made by the witness herself, (namely Mrs. Watts) in the course of her job and vouched for as true and correct. In
On August 3, 1972, they first noticed that Mrs. Stogsdill had a problem on her left ankle. She had rubbed a blister on it during the night. Her anide was red and swollen. Sores, cuts and abrasions on the lower extremities are a problem. Whether they ai;e difficult to heal depends on the patient. It is a problem to heal sores in an area such as that in elderly people who have a stroke condition or a circulation problem. Mrs. Stogsdill was such a patient. Also, on August 3 and 4, 1972, she had very little control of her bladder or her bowels. That resulted in what we commonly call wetting her pants. They tried to train her to go to the bathroom every certain length of time and also they used pads underneath her so they could keep changing them to keep her dry. They used soft materials and pads made of materials; they would fold blankets up and put them underneath her. The plaintiff did not have a catheter although some patients at the home did. No one called Dr. Hiatt at this time. The nurses during August cleaned the sore with peroxide; this was not prescribed by Dr. Hiatt. The bandage on her anide was changed four or five times a day or oftener. She was incontinent during that time and at night the bandage would become wet with urine if they did not watch it. She said it did not become wet with urine when she sat in the chair. When asked if she remembered stating in her deposition that the bandage would become wet with urine while she sat on the chair, Mrs. Genetske replied that it became wet in bed but not in the chair. It was later stipulated that at the deposition that question had been asked and that answer given. On November 6, she showed Mr. Stogsdill his mother’s ankle and told him that she had done everything the doctor said to do. Mrs. Genetske testified she was familiar with gangrene. She at some time noticed the condition of the patient’s ankle as being gangrеnous but she did not remember just when. She did not tell Mr. Stogsdill; she had no right to tell him. She did not tell the plaintiff’s daughter, Mrs. Sowa. She did not tell Dr. Hiatt; she did not make the calls to Dr. Hiatt; rather the registered nurses did. She agreed that
Dr. Barnett, a physician from Wheaton, licensed to practice medicine since 1937 and in Illinois since 1964 and who is on the staff on the Du Page County Home and who visits most other nursing homes, saw Mrs. Stogsdill, at her son’s request, on November 7, 1972. At that time, she was generally very debilitated, very weak, almost terminal. Mentally, she was very poor. She had a large ulcer involving the entire outer surface of her left ankle. There was a rough kind of bandage on it covering the entire ulcer area. The ulcer was at least five to six inches long, probably two or three inches across. It involved the whole outer surface of the ankle and extended into the bone and involved the tendons and muscles of that area. The center part of it was dead rotting tissue, wet and very foul smelling and the margins were red and inflamed. The dead tissue extended down to the bone and involved the surface of the bone. The odor was a very foul-smelling odor that one often has with decomposing tissue. He diagnosed it at the time as a wet gangrene involving the entire outer surface of the ankle. The condition was threatening her life. In view of the fact that she had had this for several weeks and was not getting better, indeed seemed to be getting worse and was beginning to show signs of toxicity, he recommended an above-the-knee amputation as the only possible treatment to save her life. He also recommended that she be admitted to the hospital where they could get further treatment and consultation with surgeons. She was admitted to the hospital the same day. He ordered a general workup including laboratory chest x-ray, electrocardiograph, continuous wet soaks to the ulcer, pain medicine, full liquid diet, full changing position frequently and antibiotics (ampicillin) given by intramuscular injection. The blood studies showed her to be severely anemic. She was down to 7 grams, about half of what she should be and also showed low protein content of her serum. He consulted with Dr. Jorden, an orthopedic surgeon. Dr. Jorden also recommended amputation. They waited until November 10, 1972, for the
Dr. Barnett also stated that he was familiar with what the medical procedures are in connection with the care and treatment of decubitus ulcers. One must take care of the general condition of the patient; take care for the general nutrition; the general care in bed or being up and then the care of the ulcer itself. Nutrition has the significance that the better the condition of the patient, the better they will overcome an illness. The patient should have a full, normal balanced diet with adequate proteins, adequate vitamins, minerals and carbohydrates. If the position of the patient is not changed, pressure develops over the pressure points and the skin breaks down and the tissue underneath it must break down. Once an ulcer develops, the general standards of the medical profession are to keep pressure off the area entirely, to get rid of any necrotic tissue as quickly as possible and institute local antibiotic treatment, soaks, everything possible to increase the circulation of that area in order to promote healing conditions. Incontinence must be cared for. Urine spreading around the skin, if it is kept there, will irritate tire skin.
Dr. Farag Loutfy, a specialist in internal medicine, who came to the United States in 1958, had his residuary in internál medicine at Illinois Masonic Hospital, and his year of rotating internship at Grant and Ressurection Hospital, has his office in Buffalo Grove and is presently on the staff of a Park Ridge hospital appeared as a witness over Dr. Hiatt’s objection that he was in another comity and another community. The court overruled this objection on the grounds that locality cannot be construed so narrowly as to be determined by county lines and also took judicial notice of the fact that Buffalo Grove is very near the Du Page County Line, in what he would call the metropolitan area and with the means of communications and textbooks and so forth nowadays, he believed the “locality” is a very broad one. He also overruled the argument that only a general practitioner could testify against a general practitioner; the internist having no knowledge about the general practice of medicine in the United States. In response to plaintiff’s hypothetical question he stated that the doctor’s conduct, knowledge and exercise of knowledge, care and skill was below the standard. The lesion should have been examined thoroughly. If there was any infection there and the infection seemed to be getting worse with sweating and inflammation, the patient should have been hospitalized as early as possible. If immediate hospitalization was not available, he would attempt to put the patient on antibiotics, put her in bed, elevate her leg, apply warm compresses. If she did not respond within the next week at most, he would put her in the hospital anyway and from the hospital have the cultures made, sensitivity to antibiotics made, determine if she is a diabetic and the general overall care for the general health and improving her resistance and treating the local condition, not only locally but also with antibiotics. Consideration of diet or nutritional intake would be significant. Nutrition is important in the healing process in a condition like this. If her blood testing proves that she is low in albumin and globulin and her genéral
Considering the hypothetical facts, including the facts that the doctor found adequate circulation to heal the sore in August and September, Dr. Loutfy believed, was of the opinion, based on a reasonable degree of medical and surgical certainty, that with proper care and treatment the leg could have been saved. Dr. Loutfy particularly emphasizing the fact that the circulation was fairly adequate, being warm enough, and pulsations were present.
On cross-examination, he testified that if all of the facts that were in the hypothetical question were not within the mind of the dbctor, then his opinion about the doctor’s conduct would be materially affected. He stated that whether he would rely on the nurses’ information depended on what was relayed to him. He would evaluate it according to what he heard and determine whether it was accurate but assuming that the doctor knew all of the facts enumerated in the hypothetical question, he could rely on the employees of the nursing home informing him of the medical facts. Assuming that after the amputation it was agreed that the blood supply to her leg was occluded and nothing could have been done to open that blood supply, whether his opinion would be changed would depend on where the oсclusion was. There is a conflict between the doctor’s report saying the pulsations were palpable and the temperature of the foot warm enough and the report of complete occlusion. The occlusion could have occurred later on, secondary to the infection that had been prevailing for a long time. In answer to a question whether, assuming it was agreed that the leg was occluded and it was occluded from arteriosclerosis of long standing, it could not have occurred later, could it, Dr. Loutfy said that there was no way of telling if it occurred later or before. The surgeon and the pathologist were getting the facts as they are now. He did not believe anyone could tell what happened unless the patient was examined before and then they examined the reports that there were pulsations in the artery. Then you are assuming it is open.
Dr. Loutfy also testified that in the course of his practice he- has had occasion to come in contact with and be assisted by both registered and
Mr. William Stogsdill, Mrs. Stogsdill’s son, testified that his mother’s health in June or July, 1972, was pretty good except that she had had a stroke (which is why she was in the nursing home). Her left arm was paralyzed and her left leg was partially paralyzed. She sat in the wheelchair normally. When he first noticed the sore on his mother’s leg in August, it was very small; like the end of a pencil eraser. Early in September, she was having trouble sitting up in the wheelchair and her left leg was beginning to constrict and draw back. While he didn’t notice the sore in particular when he was out there in September, he called Dr. Hiatt and asked him about his mother’s condition. Dr. Hiatt replied that she was quite up in years and that this leg would possibly constrict more and eventually she would be bedridden. That was the extent of the conversation. When he saw his mother early in October, her leg was drawn more, the bandage was growing larger, looked almost as if she was wearing a small boot and she appeared to be in pain. When he asked the nurse what they were doing for the sore, the nurse responded that they were removing the bandage once daily and applying ointment to the area (the jury was instructed that this evidence did not apply to Dr. Hiatt). Mr. Stogsdill was not sure how often he saw his mother
Mrs. Sowa, the plaintiff’s daughter, testified that she visited her mother on August 24. She was suffering. There was severe pain and the leg had a huge bandage on it. Her leg had become more drawn than it had been around August 1. Around October 1, her mother had grown progressively worse. She was weaker. Her face reflected pain. Her leg was drawn and still had the huge bandage on it. Mrs. Sowa called Dr. Hiatt around the middle of October and told him how much her mother was suffering. She asked him to go see her mother and to tell her when he went so that her brother could be there so when Dr. Hiatt took the bandage off they could see the condition of the leg. He spoke harshly to her and said his time was valuable and he didn’t know when he could go; he would just go when he could. (The jury was instructеd the evidence was applicable only to Dr. Hiatt.) She next saw her mother around November 1. Her condition was worse, she was weaker. When Mrs. Sowa took her hand, her mother had no strength in it. She had been moved into a back room. Around the middle of October (just before Mrs. Sowa called Dr. Hiatt) Mrs. Sowa had been told by one of the
After á hearing in chambers to determine her ability to testify, Mrs. Stogsdill testified over the objection of counsel for Dr. Hiatt. Dr. Hiatt visited her in August, 1972. She told him her ankle was getting worse every'day but he did not give her an answer. When he visited her later in August, he examined her ankle. She told the purses about the ankle whenever they came in. In September her leg was swollen and the sore was bigger. It pained all over right up into her arm. They all knew about it. She could not remember if Dr. Hiatt came in September. She knew that he came in October. Tire sore was much worse at that time and it was “awful painful.” She told him abоut it and he said, “oh, you are sitting here in a $200 chair.” He did not prescribe any different treatment at that time. She asked him to do something more for her and when he would not answer her, she knew “he wouldn’t do anything more for me,” Dr. Barnett came to see her. She was suffering so bad she could hardly stand to move. They took her to a hospital and amputated her leg. She is all right now.
At the end of the plaintiff’s case, the judge directed a verdict for,the Manor and Mrs. Genetske, ruling as to both that no breach of duty had been shown and no causation. The court, refused, however, to direct a verdict for Dr. Hiatt for failure to show causation, refused to dismiss the claim for wilful and, wanton misconduct and refused to grant a mistrial because of the dismissal of the other defendants. As we have already stated, the jury found for the plaintiff and against the defendant “general damages” at $40,000 and assessed the “punitive damages” at $80,000, on which verdict judgment was eventually entered.
I
■ This brings us to Dr. Hiatt’s first contention — that the complaint fails to state a cause of action for wilful, and wanton misconduct and that the judgment based thereon is therefore void.
The first flaw in this contention is that Dr. Hiatt did not challenge the sufficiency of the complaint in the trial court and it cannot be raised
II
Dr. Hiatt also contends that the plaintiff was guilty of contributory negligence as a matter of law and that the court erred in denying his motion for a directed verdict on this ground and in allowing the jury to pass upon this issue. No cases are cited in support of this contention, and Dr. Hiatt’s six-line argument is not at all helpful or convincing.
We assume that Dr. Hiatt’s (unarticulated) argument is that thé plaintiff, by resting her good leg on her bad leg and by fussing with the bandage, so aggravated the ulcer as to cause it to become gangrenous despite his skillful treatment. But Dr. Hiatt was fully aware of her actions and saw how1 she rested her leg but took no adequate steps to prevent it. Certainly her actions did- not prevent him from hospitalizing her, seeking assistance from a specialist or from having tests made to determine the nature and the gravity of the situation. In order to be guilty of contributory negligence, the plaintiff must have acted with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves. Senility of course seriously affects the ability to know and appreciate such dangers. One may be aware that one’s doctor wants one to keep a leg up without, because of senility, understanding that he is concerned about some serious injury resulting. “Generally, a relaxed standard of care is required in the contributory negligence situation by persons who are subject to the infirmities of old age.”' (Garner v. Crawford (La. App. 1973),
“The age of the plaintiff is also to be kept in mind. All that the law requires of an infant is a degree of care commensurate with its age and discretion. We think the same should apply-to old people, whose senses
Likewise in Kent v. County of Hudson (1968),
The Illinois Supreme Court in Barnes v. Washington (1973),
All in all, we conclude that the question of contributory negligence on the part of the plaintiff was properly left to the jury and that tire court properly denied Dr. Hiatt’s motion for a directed verdict on this ground.
Ill
Dr. Hiatt also contends that the court should have declared a mistrial after the Home and Genetske had been directed out. Again, no citation in support of the contention is given, the only case cited by Dr. Hiatt (Wright v. Royse (1963),
IV
This brings us to Dr. Hiatt’s contention that the plaintiff’s expert, Dr. Farag Loutfy, was not competent to testify (1) bеcause he had never practiced in Du Page County, and (2) because he was a specialist, not a general practitioner.
Illinois does follow the “locality rule,” under which a defendant doctor is bound to exercise such care and diligence as a good practitioner in a same or similar community would (but see Darling v. Charleston Community Memorial Hospital (1965),
The term “locality” has no precise meaning and varies with the facts of the particular case. The locality rule itself developed at a time when there was a significant difference between the opportunities for continued medical education available to a rural physician and those available to an urban one. And this was its cause and rationale. Moreover, most rural areas had no medical research centers and because of transportation problems a rural physician could not easily reach those in urban centers. (Comment, A Review of the Locality Rule, 1969 U. Ill. L. F. 96.) In Weintraub v. Rosen (7th Cir. 1937),
upon a geographical line separating two cities of the same county, with almost identical medical service, would be a misuse of the rules of evidence and an unjustifiable emphasis on empty technicalities.” We therefore conclude that this contention is without merit.
The defendant also complaints (2) that, in effect, he was held to an unreasonably high standard of care because Dr. Loutfy was a specialist in internal medicine and not a general practitioner. It is true that in many States a specialist is held to a higher standard of care. (61 Am. Jur. 2d Physicians, Surgeons, and Other Healers §119 (1972).) However, the Illinois Supreme Court, in Schireson v. Walsh (1933),
“If it is a correct rule, then we would have varying degrees of skill required when a charge of malpractice is made against a physician 4 * 4 ina civil suit for damages * * °. Under this proposition * * * specialists in treating a patient professionally might do or omit to do some act the doing or omission of which would constitute malpractice * * # on his part which would not even be deemed negligence on the part of the. average, ordinary physician or surgeon in the same community. * * * We do not believe it can be seriously contended that such is the law of tills State.”
Furthermore, Dr. Loutfy did not attempt to hold Dr. Hiatt to the standards of a specialist in internal medicine.
We therefore conclude that the entire contention is without merit and that the plaintiff’s expert was competent to testify as such.
V
This brings us to Dr. Hiatt’s contention that the plaintiff failed to prove that the loss of her leg was proximately caused by his negligence.
Dr. Hiatt’s contention is, in substance, that the loss of the leg was due to an occlusion of the arterial blood supply.. It was his own testimony that, on each occasion he examined thé plaintiff, the tibial artery was palpitating,- the temperature of the toes was good and, in his opinion, she had circulation in her foot adequate to cure the ulcer. This demonstrates that the artery was still open. Add to this Dr. Loutfy’s testimony that, under such a state of facts, with proper care and treatment the limb very definitely could have been saved, and the proof is adequate.
We conclude, therefore, that the testimony was sufficient to establish that the loss of the plaintiff’s leg was proximately caused by Dr. Hiatt’s negligence.
VI
This brings us to Dr. Hiatt’s contention that the court erred in not giving four jury instructions tendered by him (No. 6 relating to reliance on the nursing staff, and Nos. 7, 8 and 9 relating to contributory negligence). The first instruction, on delegation to the nursing staff, was a modified version of IPI 105.04 and was unclear and would only have confused the jury. Further, the subject had been adequately covered by other instructions (proximate cause, standards of care, etc.). The court did not err in refusing this instruction. Dr. Hiatt also objeсts to the court’s refusal to give instructions 7, 8 and 9 on contributory negligence (IPI 105.08,10:03, and 11.01). As we have already indicated, the plaintiff was elderly and senile and none of the tendered instructions reflected this. We conclude that the court’s refusal to give these instructions was not reversible error.
VII
This brings us to Dr. Hiatt’s contention that the (unarticulated) finding that he was guilty of wilful and wanton conduct is contrary to and unsupported by the evidence.
In Sedgwick on Damages (9th ed. 1912), in section 363, at page 710, it is said:
Ҥ363. Exemplary damages are allowed only for wilful, wanton or aggravated wrong.
The justification of exemplary damages lies in circumstances of aggravation; and the allowance of such damages is therefore restricted to such cases. There must usually be some wrong motive accompanying the wrongful act, and in the absence of malice orsome other circumstance of aggravation exemplary damages cannot be recovered in any form of action. °
In 25A C.J.S. Damages (1965), it is said, in section 162(3), at page 81: “§162(3). — Exemplary or Punitive Damages.
To warrant exemplary damages the evidence must show the aggravating circumstances justifying such damages; but an award of such damages may be based either on direct evidence of wrongful intent or on proper inferences from other evidence.”
In McCormick on Damages (1935), it is said, in sections 77 and 79, pages 275-276, 280:
“THE BASIS FOR EXEMPLARY DAMAGES 77. The usual standards for measuring damages are compensatory, but the common law sanctions, in addition, the allowance, in a limited class of cases, of exemplary damages, sometimes сalled punitive or vindictive damages. They serve to give outlet, in cases of outrageous conduct, to the indignation of the jurors, and they are defended as furnishing a needed deterrent to wrongdoing, in addition to that furnished by criminal punishment.
The practice of awarding exemplary damages, known also as punitive damages and sometimes as “smart money,” constitutes an exception to the rule that damages are aimed at compensation. Exemplary damages are assessed for the avowed purpose of visiting a punishment upon the defendant and not as a measure of any loss or detriment of the plaintiff. To many judges and commentators the doctrine which sanctions such punishment has seemed a discordant strain disturbing the harmonious symphony of the law of damages of which the central theme is compensation. Some of their more forcible criticisms may be mentioned. In the first place, it is alleged that to subject the defendant both to criminal prosecution and to punishment in the form of civil punitive damages for the same act (usually an act which is criminally punishable) exposes the defendant to “double jeopardy” in violation of the spirit, if not the letter, of the constitutional prohibitions against punishing a man twice for the same offense. Similarly, it is objected that the jury is permitted to assess a punishment under a procedure which deprives the person punished of the safeguards traditionally regarded as necessary, in criminal trials, such as the rule which requires the wrong to be established beyond a reasonable doubt, and that which exempts the accused from being forced to take the stand as a witness. Again, it is urged that, while fines in criminal cases are limited by statutes, exemplary damages arelimited only by the caprice of the jurors, subject to a review by the judges only in the rare cases where the judge can find impropriety of motive or gross disproportion, and that this want of a guiding measure leads to excess and injustice. Furthermore, it is suggested that it is basically unsound to award this amount which the defendant is condemned to pay as punishment to the plaintiff who has already been made whole by the actual damages. Finally, say the critics, the granting of exemplary damages is wholly unjustifiable upon any theory of the inadequacy of the measure of actual damages which, in a proper case, may include compensataion not merely for physical injury and money loss, but for pain, mental suffering, humiliation, indignity, and loss of reputation. It is probable that, in the framing of a model code of damages to-day for use in a country unhampered by legal tradition, the doctrine of exemplary damages would find no place.
ft ft ft
DEFENDANTS CONDUCT MUST HAVE BEEN WILLFUL OR WANTON
79. To subject a wrongdoer to liability for exemplary damages, it must be found that he acted with actual malice, ill will, or conscious disregard of consequences to others. Almost universally the decisions hold that mere “implied malice,” which is attributed to any actionable conduct, does not suffice, nor does mere negligence.”
Prosser, in The Law of Torts (4th ed. 1971), in section 2, pages 9-10, states:
“Punitive Damages
The idea of punishment, or of discouraging other offenses, usually does not enter into tort law, except in so far as it may lead the courts to weight the scales somewhat in favor of the plaintiff’s interests in determining that a tort has been committed in the first place. In one rather anomalous respect, however, the ideas underlying the criminal law have invaded the field of torts. Where the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action punitive’ or ‘exemplary’ damages, or what is sometimes called ‘smart money’. Such damages are given to the plaintiff over and above the full compensation for his injuries, for the purpose of punishing the defendant, of teaching him not to do it again, and of deterring others from following his example. Occasionaldecisions have mentioned the additional purpose of reimbursing the plaintiff for elements of damage which are not legally compensable, such as his wounded feelings or the expenses of suit.
Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite. or malice,’ dr a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton. Lacking this element, there is general agreement that mere negligence is not enough, even though it is so extreme in degree аs to be characterized as ‘gross,’ an unhappy term of ill-defined content, which occasionally, in a few jurisdictions, has been stretched to include the element of conscious indifference to consequences, and so to justify punitive damages. Still less, of course, can such damages be charged against one who acts under an innocent mistake in engaging in conduct that nevertheless constitutes a tort.”
Morris, in Punitive Damages in Tort Cases, 44 Harv. L. Rev. 1173-1209 (1931), says, at page 1190:
“The ‘rule of law’ which is supposed to determine whether the case is. an appropriate one for the allowance of punitive damages provides that they can be given only if it is found that the defendant has been ‘reckless,’ ‘wanton,’ ‘oppressive,’ ‘wilful,’ and the like. * * # » .
Very recently (1975), our Supreme Court, in Mattyasovszky v. West Town Bus Co.,
“Historically, the practice of awarding punitive damages seems to have ‘originated in the English courts in the eighteenth century as a means of justifying awards of damages in excess of the plaintiff’s tangible harm.’ (Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517, 518 (1957).) But it is unnecessary to pursue the possible historical origins in connection with this case, for it is generally recognized today that punitive damages are awarded primarily to punish the offender and to discourage other offenses. Restatement (Second) of Torts, sec. 908 (Tent. Draft No. 19, 1973); Prosser, Law of Torts 9 (4th ed. 1971).
The underlying strength of these objectives of punishment and deterrence varies substantially from case to case. Where, for example, the defendant has benefited by his misconduct, a judgment which only compensates the plaintiff for what he has lost wouldpermit the defendant to keep his wrongful gain. Apart from such cases, the situations in which punitive damages become an issue cover a broad spectrum that ranges from the intentional tort which is also a crime (see, e.g., Knierim v. Izzo (1961), 22 Ill.2d 73 , 78), to what we characterize today as ‘willful and wanton’ conduct, a characterization that shades imperceptibly into simple negligence.
The objectives of an award of punitive damages are the same as those which motivate the criminal law — punishment and deterrence. Yet in a criminal case the conduct which gives, rise to the imposition of punishment must be clearly defined. That is not so when the question is whether the conduct of the defendant can be characterized as either negligence or as willful and wanton conduct. The fine that is imposed upon the defendant in a criminal case goes to the State. But in a civil case the exaction taken from the defendant, under the label of exemplary damages, becomes a windfall for the plaintiff. The maximum and minimum amounts of the fine imposed by way of punishment and deterrence in a criminal case are fixed by statute. In the civil case, however, the jury is left at large to take from the defendant and deliver to tire plaintiff such amount as it sees fit.”
What, then, is “wilful and wanton” conduct?
In 74 Am.Jur.2d Torts (1974), it is said, in section 21, page 638, that: ‘‘§21. Wilful, wanton, and reckless acts.
Tort liability may be based on wilful or wanton acts. A wilful act is one done intentionally, or on purpose, and not accidentally, and wilfulness implies intentional wrongdoing. An injury is wilful where the act which produced it was intended to have that effect. A wanton act is a wrongful act done on purpose or in malicious disregard of the rights of others.”
And in 57 Am.Jur.2d Negligence §103, at 454 (1971), it is said that
“* e # Conduct to be wilful or wanton must be something more than negligence, since the term “negligence” is used to express a failure to exercise ordinary or due care, conduct when characterized by wilfulness rather than by inadvertence transcends negligence and is different in kind. Wanton misconduct is positive in nature, while mere negligence is materially negative.”
In 25 C.J.S. Damages §123(4) (1966), it is said:
“§123(4). — What Constitutes Malice, Wantonness, or Willfulness Malice constituting the basis of an award for exemplary damages involves the doing of an act conceived in a spirit of mischief or criminal indifference to civil obligations, and may be either expressor implied; to constitute wilfullness there must be an intent to do wrong; and wantonness implies a consciousness, without intent, that the conduct will probably result in injury."
We have carefully reviewed the evidence in this case, which is set out in considerable detail above and will not be repeated here, and conclude that it does not come within a country mile of supporting a finding that Dr. Hiatt was guilty of wilful and wanton conduct justifying a punitive award of $80,000. We do conclude that he left undone many things which he ought to have done and was guilty of negligence but not wilful and wanton.
Illinois courts of rеview have the power when, as here, a verdict is unsupported by and contrary to the manifest weight of the evidence, to set aside the verdict and reverse so much of the judgment as is based thereon.
In Grinestaff v. New York Central R.R. (1929),
“What is the evidence of facts and circumstances proven in this case that brings appellant within the rale of having committed a wilful or wanton injury? No proofs of any kind are offered by appellee tending to show how or in what manner appellant’s employees operated the engine, its speed or other directions, except witnesses testify that the whistle was not blown or the bell rung and the night was dark. # # * We find no proofs in this record which warrant the court in sustaining the verdict and judgment, based upon a wilful or wanton injury. The judgment is based upon the fifth count charging a wilful and wanton injury, as well as upon the other counts. That constitutes error. The court should have withdrawn the fifth count from the consideration of the jury. We hold under the proofs submitted that appellee did not establish a cause of action on the fifth count.
In Provenzano v. Illinois Central R.R. Co. (1934), 357 192,
“In order to constitute willful and wanton misconduct the injury must either have been intentionally inflicted, or produced by acts so grossly negligent as to exhibit a reckless disregard for the safety of others. (Brown v. Illinois Terminal Co.319 Ill. 326 .) The only evidence for the plaintiff tending to show negligence on the part of the defendant was to the effect that some of the witnesses did not hear a bell or whistle, and evidence tending to show that the sрeed of the train was something between forty-five and sixty miles per hour. The testimony of the witnesses' to the effectthat they heard no bell or whistle was merely negative in its character and did not tend to raise an issue of fact as to whether or not the whistle was blown or the bell rung. (Morgan v. New York Central Railroad Co. 327 Ill. 339 .) However, even if it be taken as true that no bell was rung or whistle sounded, it would be nothing more than an act of negligence. The same is true as to the speed at which the train was running, even if it be assumed at the highest estimate of sixty miles per hour. * * * There being no evidence showing or tending to show that the defendant willfully or intentionally injured the plaintiff and no evidence of any circumstances exhibiting a reckless disregard for his safety, there should have been a directed verdict as to the third count of the declaration.”
And in Miles v. American Steel Foundries (1939),
“As to the first of the additional counts, which is numbered four, plaintiff has undertaken to show that because there was no whistle blown and bell rung in accordance with the statute in proper cases, that there was an act of wilful and wanton negligence on the part of the defendant. This statute is wholly inapplicable to a condition such as existed in this case, and even if it were applicable our Supreme Court held in Provenzano v. Illinois Cent. R. Co.,357 Ill. 192 that even in case where the statute is applicable failure to ring the bell or blow the whistle would be nothing more than an act of negligence.”
We therefore conclude, as we have said, that the (unarticulated) finding of the jury thаt Dr. Hiatt was guilty of wilful and wanton conduct is unsupported by and contrary to the manifest weight of the evidence and reverse so much of the judgment ($80,000) as consists of “punitive damages.”
VHI
This brings us to the plaintiff’s cross-appeal, in which she contends that the trial court erred in directing out the Home and Genetske and in entering judgment for those defendants.
Where all of the evidence, viewed in its aspect most favorable to the party opposing the motion for a directed verdict, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand, then the motion should be granted and the verdict directed. Pedrick v. Peoria & Eastern R.R. Co. (1967),
The proprietors of a convalescent home, somewhat like those of a private hospital, are under a duty to exercise reasonable care to avoid injury to patrons, and the reasonableness of such care is to be assessed in the light of the patron’s physical and mental condition. (40 Am.Jur.2d Hospitals and Asylums §36 (1968).) Certainly a hospital is required "to conform to the legal standard of reasonable conduct in the light of the apparent risk.” Darling v. Charleston Community Memorial Hospital (1965),
In malpractice cases, the- courts have held that, except in the so-called “common knowledge” or “gross negligence” situations, expert testimony is essential to the proof of the standard of professional care against which due care must be measured. (Ohligschlager v. Proctor Community Hospital (1973),
We agree that the fact that the nursing care given was “usual” or customary would not of itself preclude the possibility of negligence. (Lundahl v. Rockford Memorial Hospital Association (1968),
The. Regulations of the Illinois Department of Public Health, "Minimum Standards,. Rules and Regulations for Classification and Licensure of Long-Term Care Facilities by Levels of Service” were introduced into evidence by the plaintiff. They require up-to-date patient care program for each resident, this plan to be reviewed and modified in keeping with the care needed as indicated by the resident’s condition. The nursing home must notify the resident’s family immediately, if possible, of anything unusual happening to the resident such as a sudden illness or disease. The evidence tends to show that these regulations were nbt fully
The aforementioned regulations also require the home to have written patient care policies formulated with the involvement of the administrator and the advisory physician including provisions as to which patients will be transferred. The written program of medical services must include the entire complex of services provided by the facility and the arrangements for effecting transfer to other facilities as promptly as needed. No resident who is determined by professional evaluation to be in need of skilled nursing care shall be kept in an intermediate care facility. The Director of Nursing is required to participate in the development and implementation of patient care policies and to bring patient care problems requiring changes in policy to the аttention of the facility’s policy development group. She is also required to participate in the screening of prospective residents and their placement in terms of the nursing competencies available. In addition she has the responsibility for the planning of the up-to-date patient care plan already mentioned. She is also responsible, obviously, for directing the activities of the nursing service personnel. Nursing care includes, but is not limited to, the carrying out of treatments, supervision of special diets, objective observation of changes in a resident’s condition, including mental and emotional changes, as a means for analyzing and determining the care required and/or the need for further medical evaluation and treatment, a regular program to prevent and treat decubiti, and kind and considerate treatment. Indeed, the license of the facility may be revoked for cruelty to a resident or indifference to a resident’s health, safety or welfare, which includes the failure to provide a resident with the care and super-vision he requires. An intermediate care facility, which this is, is required to have an advisory physician who is responsible for advising the administration and licensee on the overall medical management of the residents. Each resident shall be permitted his choice of a physician. The facility
These last regulations, while introduced into evidence by the plaintiff, were not, with the exception of that pertaining to the patient care plan, argued to tire trial judge in oppositon to tile motion for a directed verdict, or raised in motion for a new trial. Moreover these requirements are too vague to be sufficient indicators of the standard of due care ¡required of nursing homes by themselves. For example, assuming that Mrs. Stogsdill needed skilled nursing care and thus should not have been retained in the Manor Convalescent Home, who is to make that determination? The regulation merely says, “professional evaluation.” Does this mean the evaluation of the Director of Nursing, who does have some responsibility for screening residents and in planning an up-to-date patient care plan, or does it mean the evaluation of a physician. Dr. Hiatt apparently always believed Mrs. Stogsdill received sufficient care at the Manor. Moreover, while the regulations require the nursing home to notify the physician in case of illness, it is not clear whether this means the facility?s own physician or the patient’s. Thus no duty can be said to have been created by this regulation requiring the notification of the advisory physician where the patient’s own physician has been notified of the situation. Likewise, while the regulations state that nursing care includes objective observation of changes in a resident’s condition, as a means for analyzing and determining the care required or the need for further medical evaluation and treatment, there is no express requirement in the regulations that the facility consult another physician if the resident already has a personal physician. It must be remembered that this is a nursing home and not a hospital. It may be that what would be negligence in a hospital because of its greater control over physicians and its more extensive facilities would not be negligence in a nursing home. Since the regulations do not clearly set forth the standard of care required, expert testimony was still required in this case.
The only expert testimony introduced in this case as to the negligence of the nursing home was that of Dr. Loutfy. While he did state that the nurses did not “really do the full right thing,” his concern seemed to be directed towards the delay in August in first calling Dr. Hiatt. Dr. Loutfy testified that a nurse has the responsibility to describe to the physician what she sees, to try to inform him of what the condition is but that she should not carry on the treatment unless it is specifically ordered by the physician. In addition, he stated that there is a difference in the level of care in a nursing home and in a hospital. The hospital has the laboratory, has the higher standard of treatment and follow-up, capacity of testing and evaluation of the patient in detail.
“The plaintiffs cite the Darling case (ibid.) in support of their contention that the hospital was negligent in its failure to require consultation between Dr. Paynter and the members of its. staff. In the Darling case, however, the treating physician was an employee placed by the hospital on emergency duty and subject to its supervision. Dr. Paynter was not employed by the hospital, was not an agent of it and not subject to its supervision.”
For the same reason, the Manor is not liable for the pain endured by Mrs. Stogsdill during the three months. If the medication was improperly insufficient, that was the responsibility of Dr. Hiatt, and not of the Manor.
In addition to the requirement in tire regulations that notice be given “the physician,” there was testimony by Dr. Loutfy that a nurse should inform the physician what the patient’s condition is. However, there is no evidence that Dr. Hiatt would have acted any differently had he been more closely informed. After he was notified in August, Dr. Hiatt visited Mrs. Stogsdill at least once a month and had the opportunity while there to read the medical records. Thus he was kept fully informed of her progress. Nor was there any evidence that the Manor’s failure to notify Dr. Hiatt immediately when the ulcer first developed, even if improper, caused the eventual amputation of the leg.
We are in agreement with the trial court that the plaintiff failed to introduce any proof to substantiate several essential elements in her case against" the Manor Convalescent Home and Mrs. Genetske and therefore affirm the directed verdict and judgment rendered for said defendants. As a result, we reverse so much of the judgment ($80,000) against Dr. Hiatt as consists of punitive damages but in all other respects, the judgment is affirmed.
Reversed in part, affirmed in part.
GUILD, P. J., and SEIDENFELD, J., concur.