Nursing Home Motion 11 - Plaintiff's JNOV Motion

Plaintiff's Post-Trial Motion

NOW COMES Plaintiff, BETTY KUNZ, by and through her attorneys, HURLEY McKENNA & MERTZ, and moves this Court pursuant to 735 ILCS 5/2-1202 for the following relief: (1) to grant plaintiff an additur for past and future medical expenses based on her verdict against defendant Little Company of Mary Hospital and Health Care Centers, or, in the alternative, a new trial only on the issue of plaintiff's past and future medical expenses, against defendant Little Company of Mary Hospital and Health Care Centers, (2) to vacate and set aside the verdict returned in favor of defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. [MIDC] and Jue-Lin Tang, M.D., and enter judgment notwithstanding the verdict in favor of the plaintiff and against defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. and Jue-Lin Tang, M.D.; or, in the alternative, (3) to grant plaintiff a new trial on all issues as to defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. and Jue-Lin Tang, M.D. In support thereof, plaintiff relies upon each and all of the following grounds:

1. The court's rulings which prevented plaintiff from seeking recovery of past and future medical expenses from the jury were erroneous.

2. The verdict in favor of defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. and Jue-Lin Tang, M.D. is contrary to the law.

3. The verdict in favor of defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. and Jue-Lin Tang, M.D. is not supported by the evidence.

4. The verdict in favor of defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. and Jue-Lin Tang, M.D. is contrary to the law and not supported by the evidence.

5. The verdict in favor of defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. and Jue-Lin Tang, M.D. was the product of trial error.

A. LITTLE COMPANY OF MARY HOSPITAL-ADDITUR OR NEW TRIAL ON PAST AND FUTURE MEDICAL EXPENSES ONLY

1. The court erred in sustaining defendant Little Company of Mary Hospital and Health Care Centers' objection based on foundation to the testimony of Dr. Vincent Pateras, a nephrologist retained by the plaintiff to render opinion testimony, that (a) the plaintiffs past dialysis charges of $1,321,104 were customary reasonable and necessary charges, and (b) that plaintiff would continue to incur dialysis costs of $250,000 per year.

Plaintiff alleged at trial that she experienced gentamicin-related permanent kidney damage due to the negligence of the defendants. The uncontested testimony at trial was that the plaintiff would require dialysis for the rest of her life.

Before trial, the plaintiff produced to defendants copies of all medical bills incurred due to defendants' negligence. Upon information and the belief of plaintiffs counsel, the majority of plaintiffs medical expenses had been paid by Medicare. In compliance with the Illinois Supreme Court's decision in Arthur v. Catour, 216 I11.2d 72 (2005), prior to trial plaintiff disclosed that her retained nephrology expert, Dr. Vincent Pateras, would testify that plaintiffs medical bills from dialysis treatments were customary, reasonable and necessary, and related to the gentamicin toxicity which occurred while plaintiff was under the care of the defendants.

At trial, Dr. Pateras testified that he is a licensed physician in Illinois, and board-certified in nephrology. He is on the faculty at the Northwestern University School of Medicine-Feinberg School of Medicine, and teaches medical students at Evanston Hospital. During his entire career Dr. Pateras has been the director of a hospital dialysis unit:

Q. So during your entire time as a practicing nephrologist you've been involved with dialysis facilities and directing those facilities?

A. That's correct.

Q. And you're familiar with the operation of dialysis centers and facilities?

A. Yes. [Exhibit A, 9/16/05 Trial Transcript, p. 103]

Dr. Pateras testified regarding the plaintiffs need for dialysis, and causation:

Q. Okay. I think you've already testified as a result of Ms. Kunz' prolonged gentamycin course of June of 2000 she experienced permanent renal failure, correct?

A. Yes.

Q. As a result, she has needed dialysis because of that, correct?

A. Yes.

Q. Will she need dialysis for the rest of her life?

A. Yes. [Exhibit A, pp. 120-21]

Dr. Pateras explained for the jury in great detail what dialysis is, and how the dialysis process works:

Q. Okay. Now, you mentioned that you were for many years director of dialysis facilities at -- was it Northwestern?

A. At Evanston Hospital.

Q. Okay. If you could explain for us in detail, and we've seen this diagram, which, you know, it has a machine and it has some tubes, and it has a -- it looks like a tube going into the neck there. But if you can explain in detail exactly what dialysis is, what does it do for this woman, Betty Kunz?

A. Dialysis is a procedure whereby blood is removed from a vein and continuously allowed to circulate in what is known as a dialyzer. In this picture the dialyzer is -

Q. It's this machine right here?

A. Yeah, that machine right there.

Now, that machine, that little thing contains hundreds of thousands of little tubes like straws, except they're tiny like your hair. It's got a hole in the middle. And there are hundreds of thousands in there. And the blood goes into the lumen, into the opening, the hole of the straw, and the outside the straws, because there are hundreds of thousands, there is a special fluid that flows there. So the straw has blood inside, fluid on the outside, special fluid on the outside. And by a very well-known physical rule, whatever is inside in the blood and not outside in the water will move from the blood into the water. So the poisons that our body makes during metabolism and that accumulate and that should go out through the normal kidney goes -- does not, it accumulates in the blood, and the blood then will allow these poisons to move from inside the straw to outside the straw into the water, and that water is flushed down the drain. And that takes three hours -- as a rule, three hours three times a week. [Exhibit A, pp. 121-23]

Dr. Pateras testified that as a nephrologist and as a director of dialysis facilities, he was familiar with dialysis centers and their operation. Based on his experience, he was familiar with the customary, reasonable and necessary charges for dialysis services in the area:

Q. Okay. Now, in this case I've asked you to -- in addition to the records I sent you, I asked you to review the dialysis bills for

Ms. Kunz, correct?

A. Yes.

Q. And based on your experience as a nephrologist and director of dialysis services, you're familiar with dialysis centers and their operation, correct?

A. Yes.

Q. Okay. And you as a nephrologist are familiar with the customary, necessary and reasonable services and charges for dialysis services in this area, correct?

A. I have an idea, yes. [Exhibit A, p. 125]

The trial court then erroneously sustained the objection of counsel for defendant Little Company of Mary Hospital that the opinion of Dr. Pateras that plaintiff's dialysis charges were customary, reasonable and necessary lacked foundation. By testifying that he was familiar with the customary, necessary and reasonable charges for dialysis services in this area, Dr. Pateras satisfied the foundational requirements for his opinions regarding the reasonableness of plaintiffs medical expenses.

Plaintiff cured any foundational concerns Dr. Pateras's opinion regarding the plaintiffs dialysis charges:

Q. Okay. And as you testified earlier, you were director of dialysis services at Evanston Hospital for how many years?

A. Let's see. 25 years or so.

Q. Okay. And during what time period?

A. 1979 to 1999, that's -- I guess it's 20 years. Until 1999.

Q. Okay. And today currently you're still on the faculty at -- you hold a faculty position at Northwestern Medical School?

A. Yes.

Q. And you're still a licensed physician in the State of Illinois?

A. Yes.

Q. And you're familiar with what dialysis is?

A. Yes.

Q. You're familiar with what is done during dialysis?

A. Yes. [Exhibit A, p. 134]

Further, Dr. Pateras testified that he was familiar with current annual cost of dialysis in the Chicago area:

Q. Doctor, are you familiar with the cost on an annual basis currently of what it costs to get dialysis in the Chicago area?

A. Yes, I am. [Exhibit A, p. 140]

The Court sustained all objections by the hospital's counsel to testimony by Dr. Pateras regarding the amounts at issue in this case. The Court denied plaintiff's motion to explain the Court's ruling on this issue. [Exhibit A, pp. 164-65]

Plaintiff's subsequent Offer of Proof also established the requisite foundation for Dr. Pateras' opinion regarding plaintiffs dialysis charges:

Q. So the question I would ask is, Doctor, are you familiar with what the reasonable -- are you familiar with what the charges for renal care are generally in the Chicagoland area in general?

A. Renal care?

Q. Yes.

A. You mean hemodialysis ?

Q. Yes. For hemodialysis.

A. The cost of hemodialysis for one person per year is about a quarter of a million dollars.

Q. Okay. And we would have asked you what is the annual cost for dialysis for one person for a year, and you would have said about a quarter of a million dollars?

A. About that, yes.

Q. All right. And based on your knowledge of that cost, the medical bills that you've reviewed as part of Plaintiffs Exhibit No. 20, are those in your opinion reasonable, necessary and customary charges for renal care?

A. Yes. That's about what I would expect, yes. [Exhibit A, pp. 162-63]

The Court's ruling sustaining the foundational objection to the testimony of Dr. Pateras that the plaintiffs dialysis expenses were customary, reasonable and necessary severely prejudiced the plaintiffs right to compensation for her medical expenses. The plaintiffs need for dialysis was undisputed. The plaintiff testified in her evidence deposition regarding the bills that she received for kidney dialysis, and the amounts of those bills. [Exhibit B, pp. 22-27] In an attempt to comply with the Illinois Supreme Court decision of Arthur v. Catour, plaintiff tendered an expert who had experience with dialysis centers and their operation, and who was familiar with the customary charges for dialysis procedures. As stated by the Supreme Court in Arthur:

A party seeking the admission into evidence of a bill that has not been paid can establish reasonableness by introducing the testimony of a person having knowledge of the services rendered and the usual and customary charges for such services. Once the witness is shown to possess the requisite knowledge, the reasonableness requirement necessary for admission is satisfied if the witness testifies that the bills are fair and reasonable. 216 Ill.2d at 82, citing Diaz v. Chicago Transit Authority, 174 Ill. App. 3d 396 (1st Dist. 1988).

The defendants had not disclosed any opinion testimony which would have created a question of fact that the plaintiffs dialysis charges were unreasonable or unnecessary. Plaintiff respectfully submits that Dr. Pateras' proffered testimony regarding the plaintiffs dialysis charges had a proper foundational basis, and the Court's refusal to allow that testimony prevented the admission of plaintiffs dialysis charges into evidence and prevented the jury from compensating the plaintiff for her past and future medical expenses.

2. The court erred in denying plaintiffs oral motion to clarify and explain for the record its ruling sustaining the defendant hospital's foundational objection to the testimony of Dr. Pateras. Muehlman-Cohen v. Brak, 2005 WL 2276974 (1st Dist. Sept. 19, 2005). If the plaintiff had been given this opportunity, the plaintiff may have had an opportunity to correct any technical foundational problems with the testimony of the witness while the witness was available for trial.

3. Based on aforementioned, the court erred in refusing plaintiffs Instructions No. 11 ( I.P.I. No. 30.01 ) and No. 32 (I.P.I. No. B45.03A), which would have instructed the jury that they were permitted to award plaintiff compensation for past and future medical expenses.

B. MANOR CARE-J.N.O.V. or a NEW TRIAL

1. The court erred in granting defendant Manor Care, Inc.'s Motions in Limine, and barring plaintiffs retained nursinghome expert, Cheryl Vajdik, RN, from rendering several disclosed liability opinions against defendant Manor Care, Inc., at trial. [Manor Care's Motions in Limine attached as Group Exhibit E]. The court's rulings prevented the plaintiff from arguing to the jury that defendant Manor Care, Inc.'s employees deviated from the nursing home standard of care in the following substantial ways:

a. That Manor Care's nurses deviated from the standard of care by failing to go up the “chain of command” and obtain orders in response to plaintiffs low urine output and Dr. Tang's failure to respond to signs of renal compromise on June 13h, 14th and June 15th of 2000.

b. That Manor Care's nurses deviated from the standard of care by failing to contact Dr. Beezhold or other of plaintiff's attending physicians in response to plaintiffs low urine output and Dr. Tang's failure to respond to signs of renal compromise on June 13th, 14th and June 15th of 2000.

c. That Manor Care's nurses deviated from the standard of care by failing to know that gentamicin is nephrotoxic, and as such requires nursing intervention when the patient exhibits signs of nephrotoxicity.

d. That Manor Care's nurses deviated from the standard of care and violated Section 300.1820 of the Illinois Administrative Code, by failing to ensure that the Little Company of Mary Hospital Patient Transfer Form had been signed by a physician, losing a chance to discover the medical error on the form and leading to a loss of continuity of care.

e. That Manor Care's nurses had a continuing duty to advise Dr. Juelin Tang of the plaintiffs condition, through June 14, 2000, and continuing to June 15, 2000, in light of evidence, creating a question of fact for the jury, that the plaintiff received doses of gentamicin up to June 15, 2000.

f. That Manor Care's nurses were permitted and, in fact, were required under the standard of care to contact the transferring hospital regarding any confusing or unclear information contained on the hospital's Patient Transfer Form.

Plaintiffs Offer of Proof regarding these issues and Nurse Vajdik is contained at Exhibit C, pp. 113 through 119.

2. The court erred in granting defendant Manor Care, Inc.'s Motion in Limine and barring plaintiffs Rule 213(f)(1) fact witness Sue Cis from rendering fact testimony regarding conversations she had with employees from defendant Manor Care. Plaintiff complied with Rule 213(f)(1) and disclosed Sue Cis as a fact witness who would testify regarding the facts of the occurrence and the plaintiffs damages. Defendants chose not to depose those witnesses before trial to determine what facts regarding the occurrence the witnesses knew. Regarding a fact witness, Illinois Supreme Court Rule 213(f)(1) only requires that the party calling the witness disclose the identity of the witness and the subject matter of the witness's testimony.

3. The court erred in ruling as a matter of law that plaintiff had failed to produce evidence at trial regarding either direct or apparent agency between defendants Manor Care and Dr. Tang.

a. The court erred in refusing to instruct the jury on the issue of actual agency when the jury heard testimony that Dr. Tang was Manor Care's direct agent in that he was a) the facility's medical director, b) received compensation by Manor Care for his work as Medical Director, c) was ordered by Manor Care to provide care for specific patients as part of his work as medical director, d) could be terminated or otherwise directed in his work by Manor Care, and e) was acting within the scope of his agency in caring for Betty Kunz because Manor Care assigned Tang to care for Betty Kunz. Thus, the court improperly refused plaintiffs Instruction's No's 21, 22 and 23 (I.P.I.'s 50.03, 50.05 and 50.06).

b. The court erred in refusing to instruct the jury on the issue of apparent agency when the jury heard testimony that a) when Betty Kunz was transferred to Manor Care, Dr. Tang was contacted by a Manor Care nurse who informed Dr. Tang of Betty Kunz's arrival and asked Tang to become Betty Kunz's doctor, b) neither Betty Kunz nor anyone from her family chose Dr. Tang to become Betty's physician at Manor Care, c) neither Dr. Tang nor any of Manor Care's personnel ever informed Betty Kunz or her family that Dr. Tang was not an employee of the nursing home, d) plaintiff and her daughter relied on defendant Manor Care to provide medical and rehabilitative services for the plaintiff as she completed I.V. antibiotic therapy. This testimony created a question of fact for the jury regarding apparent agency, based on the law set forth in Gilbert v. Sycamore Municipal Hospital, 156 I11.2d 511 (1993) and McCorry v. Evangelical Hospitals Corporation, et al., 331 Ill. App. 3d 668 (1st Dist. 2002). Thus, the court improperly refused plaintiffs Instruction's No. 24 ( I.P.I. 105.10 ).

C. JUELIN TANG, M.D.-J.N.O.V. or a NEW TRIAL

1. During his case in chief, defendant Dr. Tang called retained expert Dr. William Duffy, a nephrologist, to testify regarding damages issues only. After Dr. Tang's counsel completed his direct examination, the Court tendered the witness to plaintiffs counsel for cross-examination. After plaintiff completed cross-examination of Dr. Duffy, the Court permitted counsel for co-defendants to examine Dr. Duffy. Counsel for co-defendants proceeded to raise new matters during their cross-examination of Dr. Duffy regarding standard of care. [Exhibit D, pp. 152-153]. For example, in response to MIDC”s counsel's questions re: lack of nephrotoxicity of gentamicin, Dr. Duffy responded that the attending physician can give the drug to a patient with prior kidney damage, but the physician must monitor the levels of the drug in the blood. [Exhibit D, pp. 146-47].

After the co-defendants introduced this new matter, the Court erred in refusing to allow plaintiff to re-cross-examine Dr. Duffy. [Exhibit D, p. 151]. Specifically, the Court, by denying plaintiff the opportunity to re-cross examine Dr. Duffy after Dr. Tang's co-defendants raised standard of care issues during their examinations of the witness, prohibited plaintiff's counsel from questioning Dr. Duffy regarding a) the package insert for the drug gentamicin, which lists contraindications and necessary monitoring for gentamicin use, b) the purpose of monitoring gentamicin levels in patients on the drug, and c) that levels must be monitored to prevent pre-existing kidney damage from becoming permanent due to gentamicin toxicity. [Plaintiff Offer of Proof at Exhibit D, pp. 152-53]. Due to the Court's ruling prohibiting the aforementioned, the plaintiff was denied an opportunity to fully prove her case against defendant Dr. Tang.

2. The Court erred in granting defendant Dr. Tang's Motion in Limine No. 8, barring plaintiff from questioning co-defendant MIDC employees Dr. David Beezhold and Dr. Russell Petrak regarding testing they would want done on patients receiving gentamicin. The testimony at trial established that Dr. Beezhold devised the initial plan to place plaintiff on gentamicin, and Dr. Petrak issued the order to discharge plaintiff to defendant Manor Care on gentamicin. The testimony was relevant on the issues of standard of care and proximate cause regarding defendant Dr. Tang, and the Court's ruling denied an plaintiff an opportunity to fully prove her case against defendant Dr. Tang.

3. The Court erred in granting defendant Dr. Tang's Motion in Limine No. 7 barring plaintiff from using, during cross-examination of defendants' experts at trial, any literature, including the 2000 Physicians' Desk Reference. As part of plaintiffs Offer of Proof on the issue, plaintiffs counsel read from the discovery deposition of Dr. Duffy, in which Dr. Duffy testified:

“Question: Would you” --

While we are discussing the PDR, at Page 23, the question at Page 23 was, “I mean you just said it is not a drug you used. If you did choose to use it, would you consult the PDR on that?

“Answer: Yes.”

And then it says, “And the PDR is the Physician Desk Reference; correct?

“Answer: Correct.”

And then at Page 24,”Would you consider it to be something that you as a physician would rely on from time to time prior to and while administering medications to your patients?

“Answer: I would consider it a source of information that I would consult.” [Exhibit D, p. 100]

Plaintiff submits that this testimony satisfies the foundational requirements for use of the 2000 Physician's Desk Reference during cross-examination of defendants' experts.

D. METRO INFECTIOUS DISEASE CONSULTANTS, L.L.C.-J.N.O.V. or a NEW TRIAL

1. The Court erred when, pursuant to defendant MIDC's objection at trial, the Court barred plaintiffs retained infectious disease expert, Dr. Keith Armitage from testifying that MIDC employee Dr. Petrak deviated from the standard of care by continuing plaintiff on a long-term course of gentamicin for long-term use at the nursing home facility in view of her make-up and condition. [Trial Transcript, September 15, 2005, pp. 57-58].

2. The Court erred in granting defendant Dr. Tang's Motion in Limine No. 7 barring plaintiff from using, during cross-examination of defendants' experts at trial, any literature, including the 2000 Physicians' Desk Reference.

3. For the reasons set forth above in Section C, Par. 1, the Court erred in refusing to allow plaintiff to re-cross-examine Dr. Duffy after counsel for MIDC raised standard of care issues during counsel's examination of Dr. Duffy. As a result of the Court's ruling prohibiting the aforementioned, the plaintiff was denied an opportunity to fully prove her case against defendant MIDC.

CONCLUSION

WHEREFORE, for the reasons stated above, this Court should (1) grant plaintiff an additur for past and future medical expenses based on her verdict against defendant Little Company of Mary Hospital and Health Care Centers, or, in the alternative, a new trial only on the issue of plaintiffs past and future medical expenses against defendant Little Company of Mary Hospital and Health Care Centers, (2) to vacate and set aside the verdict returned in favor of defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. [MIDC] and Jue-Lin Tang, M.D., and enter judgment notwithstanding the verdict in favor of the plaintiff and against defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. and Jue-Lin Tang, M.D.; or, in the alternative, (3) to grant plaintiff a new trial on all issues as to defendants Manor Care, Inc., Metro Infectious Disease Consultants, L.L.C. and Jue-Lin Tang, M.D.

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