The Private Bank v. Silver Cross Hospital and Medical Centers , 2017 IL App (1st) 161863 ( 2018 )

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Appellate Court Date: 2018.05.08
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The Private Bank v. Silver Cross Hospital & Medical Centers,
2017 IL App (1st) 161863Appellate Court THE PRIVATE BANK, as Guardian of the Estate of Raymond
Caption Reynolds III, a Disabled Person, and AMANDA LESSNER,
Individually and as Guardian of the Person and Next Friend of
Raymond Reynolds III, a Disabled Person, Plaintiffs, v. SILVER
CROSS HOSPITAL AND MEDICAL CENTERS; MICHELLE
ALLING; MIDWEST RESPIRATORY, LTD.; PHILIP LEUNG,
M.D.; ROBERT KOZIOL, D.O.; MIDSTATE
ANESTHESIOLOGISTS, LTD.; ALLIED ANESTHESIA
ASSOCIATES, S.C.; HEDGES CLINIC, S.C.; MICHAEL
DEMAERTELAERE; EM STRATEGIES, LTD.; and ANTHONY
MURINO, D.O., Defendants (Amanda Lessner, Individually and as
Guardian and Next Friend of Raymond Reynolds III, a Disabled
Person, Plaintiffs-Appellants; EM Strategies, Ltd., and Anthony
Murino, D.O., Defendants-Appellees).
District & No. First District, Fifth Division
Docket No. 1-16-1863
Filed December 15, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 12-L-10705; the
Review Hon. Edward Harmening, Judge, presiding.
Judgment Affirmed.
Counsel on Martin J. Oberman and Keith L. Davidson, both of Chicago, for
Appeal appellants.
Vogt & O’Kane, of Chicago (Robert P. Vogt and David A. Brueggen,
of counsel), for appellees.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Presiding Justice Reyes and Justice Rochford concurred in the
judgment and opinion.
OPINION
¶1 In this medical malpractice action against several defendants, plaintiffs alleged that
hospital patient Raymond Reynolds III, suffered a cardiac arrest and catastrophic brain damage
because, inter alia, defendant Dr. Anthony Murino delayed responding to an emergency call
for treatment. Also, plaintiff Amanda Lessner, who was Reynolds’s fiancée, alleged claims for
loss of consortium and loss of a chance to marry.
¶2 Prior to trial, the court dismissed Lessner’s loss of consortium and chance to marry claims
based on her failure to establish a cause of action upon which relief may be granted. After the
conclusion of plaintiffs’ case at the jury trial, the trial court granted a motion for a directed
verdict in favor of defendants Dr. Murino and his employer, EM Strategies, Ltd. (EMS), which
managed the hospital’s emergency department. The case proceeded to verdict as to several
codefendants, who ultimately settled with plaintiffs and are not parties to this appeal.
¶3 On appeal, plaintiffs argue that (1) the trial court erred in granting the directed verdict
because they presented circumstantial evidence from which the jury reasonably could have
concluded that Dr. Murino delayed leaving the emergency room (ER) to treat Reynolds in the
intensive care unit (ICU), (2) the trial court erred in barring evidence about EMS’s medical
malpractice insurance coverage, and (3) this court should recognize Lessner’s claims for loss
of consortium and loss of chance to marry because she and Reynolds were in a long-term
committed relationship for many years and their scheduled wedding date was less than 20 days
away when defendants’ negligence prevented Lessner and Reynolds from marrying.
¶4 For the following reasons, we affirm the judgment of the Cook County circuit court.
¶5 I. BACKGROUND
¶6 In September 2010, Reynolds was suffering from severe pneumonia and was admitted to
Silver Cross Hospital. His condition deteriorated, and he was transferred to the ICU. On
September 22, an intubation procedure was performed on him, followed by a portable chest
X-ray at 3:40 a.m., which was standard procedure. The digital X-ray image was transmitted to
an offsite radiology service for interpretation.
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¶7 According to the offsite service’s computer automated time stamps of its electronic
records, the offsite service received the X-ray at 3:52 a.m., and the radiologist opened the film
to read it at 3:55 a.m. The X-ray revealed a tension pneumothorax, which can be fatal if not
treated immediately. A pneumothorax is a collection of free air in the chest outside the lung
from a hole in the lung or chest wall that causes the lung to collapse. A tension pneumothorax
refers to the compression of the chest structures that results when the lung continues to leak air.
The radiologist dictated a report, which was immediately sent to the hospital, and the offsite
service and radiologist attempted to arrange a conference call with Reynolds’s treating
physician.
¶8 According to the telephone company’s computer records, the following events occurred at
the specified times. Specifically, at 3:57 a.m., the radiologist telephoned the ICU. The
radiologist spoke to ICU nurse Michelle Alling about his findings. At 3:58 a.m., Reynolds’s
pulmonologist, who was at home, telephoned nurse Alling. Alling testified that the
pulmonologist gave her an order to call the attending, who was Reynolds’s family doctor, to
get a consult so a trauma surgeon could come in and place a chest tube. Although Alling’s
telephone call with the pulmonologist lasted until 4:03 a.m., she did not wait until that call
ended to seek help from others in the ICU to find a surgeon or doctor to come to the ICU.
Alling had informed her charge nurse about the tension pneumothorax. Consequently, while
Alling was telephoning whoever was on call that night for the attending’s group and trying to
get a trauma surgeon to come in, the charge nurse called probably the house supervisor, who
would have information about who was available in the hospital to come to the ICU. The ICU
nurses understood the significance of a tension pneumothorax, so the objective was to reach
out and find the physician who could get to the ICU the fastest to place the chest tube. Alling
did not know who in the ICU telephoned the ER about Reynolds’s tension pneumothorax or
when. She learned after the fact that someone had telephoned the ER.
¶9 The ICU’s telephone call to the ER for assistance with the tension pneumothorax was
characterized as a non-code blue emergency. A code blue was a common term to indicate that
a cardiopulmonary arrest was happening to a hospital patient and treatment providers were
required to rush to a specific location and begin immediate resuscitative efforts. Plaintiffs’
evidence at trial did not show who or when someone in the ICU made that telephone call to
someone in the ER.
¶ 10 Dr. Murino was the lone ER physician on duty that night, and he had 16 ER patients under
his care at the time. Under the ER’s triage system, the nurses initially classified patients in
order of severity and level of necessary care. Triage was a fluid, ongoing process, and Dr.
Murino checked computers to assess what was happening on a continual basis and ensure that
everything was okay. Also, ER staff would inform him of changes in patients’ conditions. The
hospital’s policy and the standard of care required ER physicians to assess their patients to
ensure their safety before leaving the ER for other parts of the hospital to treat inpatient
emergencies. This meant the ER physician had to (1) determine that no ER patient suffered
from a condition equal to or more serious than the hospital inpatient, (2) discuss the ER
patients’ treatment plans with the ER nurses, and (3) observe any high risk ER patients before
leaving the ER.
¶ 11 Dr. Murino testified that when the ICU telephones the ER, the call could be answered by
anyone, like a secretary or someone at the charge nurse’s desk; it depended on who was
around. If everyone in the ER was in a room helping someone or starting an IV, the call could
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bounce around. When a call comes from the ICU to the ER, it should be triaged; someone
should be made aware of it and then Dr. Murino “hopefully” would be made aware of it as soon
as possible. Dr. Murino testified that he did not have an independent memory of Reynolds’s
treatment or the events and patients in the ER during the time in question. Dr. Murino never
spoke to anyone in the ICU and did not recall when or from whom he received the information
about the ICU’s non-code blue call about Reynolds’s tension pneumothorax. Moreover,
plaintiffs did not present any witness or other direct evidence to show who in the ER initially
received the information about the tension pneumothorax, what time that information was
received, and what time it was communicated to Dr. Murino.
¶ 12 At 4:10 a.m., Reynolds suffered a cardiac arrest, and nurse Alling hit the button in his room
to issue a code blue page through the hospital’s public address system. Dr. Murino recorded in
his notes, which were written at approximately 4:45 a.m. on the date at issue, that he was
leaving the ER as the code blue page sounded. He testified that he did not recall how much
time had elapsed between when he was informed about the ICU’s non-code blue request for
assistance and when he left the ER, but he remembered that he was moving as fast as he could.
¶ 13 Dr. Murino arrived at Reynolds’s bedside and began treating him at 4:12 a.m. by inserting
a needle and then a chest tube into his chest. Dr. Murino and the code team continued to
resuscitate Reynolds but could not restore his heartbeat until 4:17 a.m. By that time, the lack of
oxygen to Reynolds’s brain had caused major permanent brain damage.
¶ 14 About six hours later, nurse Alling wrote her notes about Reynolds’s treatment. According
to Alling’s testimony, her primary focus was treating Reynolds’s serious condition, so she did
not have the extra time necessary to write her notes contemporaneous with his treatment. In
these situations, she usually looked at a clock if possible and jotted down the times on pieces of
paper as events unfolded. Afterwards, she would sit down and use those pieces of paper to
write her notes, and then would discard those pieces of paper. Consequently, the times of the
occurrences listed in her notes were simply her best guess or rough estimate. Her notes were
not intended to record specific and accurate times about a patient’s treatment but rather were
meant to inform the next shift about what had occurred before their arrival.
¶ 15 According to nurse Alling’s notes, at 3:50 a.m., the offsite radiologist called her and
reported that Reynolds had signs of a tension pneumothorax. The pulmonologist was also on
the phone and talked to the radiologist. At 3:55 a.m., the pulmonologist was re-paged, and the
attending physician on call that night was called to get a consult for a trauma surgeon to come
in and place a chest tube. The “ER Dr. [was] paged also.” At 4 a.m., the family was informed of
Reynolds’s condition. At 4:08 a.m., his heart rate started to drop, and the code blue was called
at 4:10 a.m.
¶ 16 After September 22, Reynolds was diagnosed with anoxic brain injury with spastic
quadriparesis and episodes of seizure activity. His disabilities included a motor speech
disorder, visual defects, decreased coordination, and an inability to independently conduct the
activities of daily living. Reynolds was unable to marry Lessner, his girlfriend of 16 years and
fiancée. Their wedding, scheduled for October 10, 2010, never took place. The probate court
appointed Lessner as the guardian of Reynolds’s person and appointed The Private Bank as the
guardian of his estate.
¶ 17 In 2012, plaintiffs Lessner and Reynolds’s guardians filed this personal injury action. In
2015, plaintiffs filed their sixth amended complaint against the hospital, nurse Alling, the
anesthesiologists, and Reynolds’s treating physicians and their employers, seeking damages
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for medical malpractice on behalf of Reynolds and damages for Lessner’s claims of loss of
consortium and loss of chance to marry.
¶ 18 Relevant to this appeal, plaintiffs alleged that Dr. Murino negligently delayed leaving the
ER to treat Reynolds’s tension pneumothorax and that EMS was liable for his negligence on
the basis of respondeat superior. Also, plaintiffs alleged that EMS negligently violated its
contractual obligations and the hospital’s policy by instructing Dr. Murino not to leave the ER
to treat hospital inpatients unless a code blue has been issued. Specifically, plaintiffs alleged
that Dr. Murino was paged at 3:55 a.m. to come to the ICU to treat Reynolds’s non-code blue
tension pneumothorax, but Dr. Murino negligently failed to come immediately and delayed
leaving the ER until the code blue was issued at 4:10 a.m. Plaintiffs alleged that EMS’s
instruction about not leaving the ER for non-code blue emergencies caused or contributed to
Dr. Murino’s failure to promptly treat Reynolds. Also, Lessner alleged that as a proximate
result of defendants’ negligence and Reynolds’s injuries, she was deprived of his consortium
and of the chance to marry.
¶ 19 Prior to trial, the court granted defendants’ and the codefendants’ motions to dismiss
Lessner’s claims for loss of consortium and loss of chance to marry, pursuant to section 2-615
of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)). Also, plaintiffs settled their
claims against the hospital and nurse Alling for $14 million.
¶ 20 Among the numerous pretrial motions filed in this matter, Dr. Murino and EMS moved
in limine to bar any reference to medical malpractice insurance. They explained that their
motion arose as a result of Dr. Murino’s deposition testimony, which indicated that he thought
his malpractice insurance with EMS did not cover treatment he rendered outside the ER to
hospital inpatients in the absence of a code blue. Plaintiffs responded that Dr. Murino’s
credibility about his decision to leave the ER before the code blue was sounded was at issue,
and his belief about his lack of malpractice coverage in such instances was very probative of
that issue. Also, plaintiffs argued that a careful limiting instruction would prevent any
prejudice to defendants from the mention of malpractice insurance.
¶ 21 The trial court granted Dr. Murino and EMS’s motion in limine, finding that the concept of
malpractice insurance inflames the jury and that the mention of malpractice insurance would
have negative implications for the codefendants and was more prejudicial than probative. The
trial court would allow plaintiffs to “get into” whether there was a policy and practice in place
that Dr. Murino believed required him not to leave the ER unless a code blue was called.
¶ 22 Dr. Murino and EMS also filed motions in limine concerning plaintiffs’ emergency
medicine expert Dr. Daniel DeBehnke, who testified in his deposition that he could not say that
Dr. Murino had breached the standard of care because there was no evidence to establish when
Dr. Murino was told about Reynolds’s tension pneumothorax. Defendants argued, inter alia,
that plaintiffs should be barred at trial from disputing Dr. DeBehnke’s deposition testimony
and that he should be barred from testifying about matters not disclosed during discovery in
accordance with Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007).
¶ 23 Relevant to this appeal, the trial court ruled that it would not prejudge the case but would
see if plaintiffs could establish their case with evidence showing Dr. DeBehnke believed Dr.
Murino “was called at X time and *** should have been at [Reynolds’s] bedside at Y time.”
The court emphasized that “[t]here has to be support in the record for the expert’s opinion”
because the jury may not reach its decision based upon speculation. Based upon the record, the
trial court was struggling to understand what Dr. DeBehnke “believe[d] Dr. Murino should
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have done and when he should have done it other than using [the term] ‘immediately’ without
any context [in the expert witness Rule 213 disclosure].” The trial court stated that the expert,
not the jurors, must set forth the standard of care and the jurors would not be allowed to decide
what “immediately” meant or how quickly they believed Dr. Murino should have gone to the
ICU.
¶ 24 Opening statements in the jury trial commenced in May 2016. According to plaintiffs’
theory of the case against Dr. Murino and EMS, regardless of whether the radiologist
telephoned the ICU at either 3:50 a.m. or 3:57 a.m., the ICU would have quickly notified the
ER about the tension pneumothorax, and the jury would have to decide if Dr. Murino could
have treated Reynolds earlier but delayed leaving the ER in accordance with EMS’s improper
instructions not to leave the ER to treat inpatients unless a code blue was issued.
¶ 25 Plaintiffs’ emergency medicine expert Dr. DeBehnke testified that he reviewed all the
records and depositions in this case. In response to hypothetical questions based on assumed
facts, Dr. DeBehnke stated that if Dr. Murino was informed at approximately 3:55 a.m. of
Reynolds’s tension pneumothorax but did not respond by going “immediately” to the ICU and
instead delayed until 4:10 a.m. when the code blue was sounded, then Dr. Murino would have
violated the standard of care. Also, if Dr. Murino was informed of Reynolds’s tension
pneumothorax at any time prior to 4:10 a.m. and did not leave the ER “immediately,” then Dr.
Murino would have violated the standard the care. However, Dr. DeBehnke acknowledged that
he could not offer an opinion in the absence of facts about what time Dr. Murino was notified
of the tension pneumothorax. Dr. DeBehnke admitted that he did not know when Dr. Murino
was told about Reynolds’s tension pneumothorax and could not find facts of a delay.
Consequently, Dr. DeBehnke acknowledged that he could not express an opinion within a
reasonable degree of medical certainty whether any delay by Dr. Murino occurred or whether
he breached the standard of care.
¶ 26 Furthermore, Dr. DeBehnke opined that if Dr. Murino had performed the needle
decompression on Reynolds before his cardiac arrest at 4:10 a.m., then it probably would have
alleviated the pressure and prevented the cardiac arrest. Dr. DeBehnke also opined that EMS
failed to use reasonable care when it instructed Dr. Murino not to leave the ER to treat
inpatients unless a code blue was issued, and those instructions could have caused Dr. Murino
to delay going to the ICU. Dr. DeBehnke believed that the telephone records were more
reliable and accurate about when telephone calls were made and their duration than nurse
Alling’s time entry notations, including her note indicating that the ER was paged at 3:55 a.m.
¶ 27 After plaintiffs presented their case, defendants EMS and Dr. Murino moved for a directed
verdict, arguing plaintiffs failed to show when Dr. Murino was notified of the tension
pneumothorax and when he responded to that problem. Defendants asserted that the evidence
established the ICU could not have telephoned the ER at 3:55 a.m. about the tension
pneumothorax because the offsite radiologist did not telephone the ICU to report his findings
until 3:57 a.m. Moreover, plaintiffs’ expert Dr. DeBehnke had conceded that he could not
accuse Dr. Murino of a delay because no one knew at what time he was notified about the
tension pneumothorax and, thus, no one knew how much time elapsed between when he was
notified of the problem and when he left the ER by 4:10 a.m., as the code blue page was being
issued. Defendants argued that it would be complete speculation for the jury to decide when
Dr. Murino was told about the tension pneumothorax and whether he delayed rendering
treatment to Reynolds. This was because the workings of an ER after it receives a call for
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assistance from an ICU was not a matter of common experience and plaintiffs failed to meet
their burden of production to show who in the ICU called the ER and, especially, who in the
ER received that call and what happened in the ER next.
¶ 28 Plaintiffs responded that there was circumstantial evidence indicating that when the
radiologist apprised nurse Alling of Reynolds’s problem, the ICU acted quickly to contact the
ER to request assistance and someone in the ER would have quickly informed Dr. Murino but
he failed to timely respond based on his employer’s improper instruction not to respond unless
a code blue was issued. Plaintiffs argued that it was the jury’s role to decide which evidence
about when Dr. Murino was informed of the problem was more credible. Plaintiffs argued that
it was reasonable for jurors, based on their assessment of the common experience of the
witnesses, to infer from the circumstantial evidence that the ICU nurses understood that
Reynolds would die so they would have contacted the ER immediately and, in accordance with
the hospital’s triage system, someone in the ER would have informed Dr. Murino right away
upon receiving such a call from the ICU.
¶ 29 The trial court took the motion for a directed verdict under advisement but observed that
plaintiffs’ case against Dr. Murino depended on whether he delayed leaving the ER within a
tight time frame of no more than 13 minutes, as established by the time that elapsed between
when the radiologist contacted the ICU and when Dr. Murino left the ER as the code blue was
being sounded. Nurse Alling had testified that her time notations were estimates recorded
several hours after the events, and the offsite radiology service’s time-stamped electronic
records and the telephone company’s computer logs refuted Alling’s time notations. Even
accepting as true for purposes of the motion that Dr. Murino should have left the ER
immediately when he was notified of the tension pnuemothorax and gone to the ICU, there was
no evidence in the record to tell the jury when he was notified. Although plaintiffs speculated
that the charge nurse probably telephoned the ER, the charge nurse was not called as a witness
to testify regarding his custom and practice in this type of situation. Furthermore, there was no
testimony about who in the ER would have received the ICU’s telephone call or what the ER’s
custom and practice was upon receiving such a call.
¶ 30 On May 31, 2016, the trial court granted the motion for a directed verdict. On the next court
date, the trial court elaborated that the case against Dr. Murino and EMS was all about
response time and, even considering the evidence about the timeline in the light most favorable
to plaintiffs, no more than 15 minutes elapsed between when the ICU allegedly called the ER
and when Dr. Murino arrived in the ICU and treated Reynolds. However, during that short time
frame, no evidence showed either who or at what time someone in the ER informed Dr. Murino
of the tension pneumothorax or the custom and practice of the ER staff in that type of situation.
¶ 31 The jury trial proceeded against the codefendants, and the jury returned a verdict in the
amount of $31,636,119 for Reynolds’s medical malpractice damages. However, based on
settlement agreements among the parties, Reynolds’s recovery at the circuit court level was
$16 million. In accordance with those settlement agreements, all the defendants except Dr.
Murino and EMS were dismissed with prejudice.
¶ 32 After the trial, The Private Bank resigned from its role as guardian of Reynolds’s estate. In
December 2016, Lessner was appointed guardian of both Reynolds’s person and estate.
Plaintiffs filed a timely appeal.
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¶ 33 II. ANALYSIS
¶ 34 On appeal, plaintiffs argue that (1) the trial court erred in granting the directed verdict in
favor of Dr. Murino and EMS because, viewing the evidence in the light most favorable to
plaintiffs, the jury, based on reasonable inferences from the circumstantial evidence, could
have concluded that Dr. Murino delayed leaving the ER and violated the standard of care; (2)
the trial court abused its discretion by barring evidence about EMS’s lack of medical
malpractice insurance coverage if Dr. Murino left the ER to treat hospital inpatients for an
emergency other than a code blue; and (3) this court should recognize Lessner’s claims for loss
of consortium and loss of a chance to marry.
¶ 35 A. Illinois Supreme Court Rules 341 and 342
¶ 36 This court notes that plaintiffs have failed to comply with the provisions of Illinois
Supreme Court Rules 341(h)(9) (eff. Jan. 1, 2016) and 342 (eff. Jan. 1, 2005). Specifically,
plaintiffs failed to prepare a complete table of contents, with page references, of the record on
appeal, which has made it difficult for this court to locate pleadings, orders, and transcripts in
the record for purposes of reviewing plaintiffs’ claims of error. The rules governing civil
appeals are not merely suggestions, but are necessary for the proper and efficient
administration of the courts. See First National Bank of Marengo v. Loffelmacher, 236 Ill.
App. 3d 690, 691-92 (1992). This court is not required to sift through the record to find support
for an issue, and ill-defined or insufficiently presented issues that do not satisfy the rules may
be considered forfeited. See Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855
(2007).
¶ 37 B. Directed Verdict
¶ 38 Plaintiffs argue that the trial court erroneously granted a directed verdict in favor of Dr.
Murino and EMS because plaintiffs “introduced more than sufficient [direct and
circumstantial] evidence from which a reasonable jury could infer and conclude that Dr.
Murino delayed leaving the ER and that his delay violated the standard of care.”
¶ 39 Specifically, plaintiffs cite the evidence of (1) nurse Alling’s time notations and testimony
that the ICU worked as a team to quickly find a physician to treat Reynolds’s emergency
condition, (2) expert DeBehnke’s testimony that Dr. Murino was required to leave the ER
immediately to treat Reynolds, (3) the short distance between the ER and ICU, (4) the ER’s
triage system, and (5) EMS’s instructions to Dr. Murino to respond to only code blue
emergencies. Plaintiffs argue that there was “powerful circumstantial evidence from which the
jury could have reasonably concluded that Dr. Murino was notified about [Reynolds’s]
condition immediately after the 3:55 a.m. page because the triage system was in place,” was
effective, and required that Dr. Murino be notified immediately about a dying patient.
Plaintiffs complain that the trial court, instead of deferring to the jury, erroneously decided that
there was no evidence about either when Dr. Murino was notified of the tension pneumothorax
or the ER’s custom and practice once it received a telephone call from the ICU.
¶ 40 We review de novo whether the trial court’s judgment, granting Dr. Murino and EMS’s
motion for a directed verdict, was proper in light of the evidence admitted at trial. See
Fragogiannis v. Sisters of St. Francis Health Services, Inc., 2015 IL App (1st) 141788, ¶ 15.
“[V]erdicts ought to be directed *** only in those cases in which all of the evidence, when
viewed in its aspect most favorable to the opponent [of the motion for a directed verdict], so
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overwhelmingly favors [the] movant that no contrary verdict based on that evidence could ever
stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). “In ruling on a
motion for a [directed verdict], a court does not weigh the evidence, nor is it concerned with
the credibility of the witnesses; rather it may only consider the evidence, and any inferences
therefrom, in the light most favorable to the party resisting the motion.” Maple v. Gustafson,
151 Ill. 2d 445, 453 & n.1 (1992) (noting “that motions for directed verdicts and motions for
judgments n.o.v., although made at different times, raise the same questions, and are governed
by the same rules of law”).
¶ 41 A directed verdict is improper where “there is any evidence, together with reasonable
inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the
assessment of credibility of the witnesses or the determination regarding conflicting evidence
is decisive to the outcome.” Id. at 454. “In reviewing the evidence, a trial court cannot ignore
circumstantial evidence or reasonable inferences of negligence that can be drawn from
circumstantial evidence.” Grewe v. West Washington County Unit District No. 10, 303 Ill.
App. 3d 299, 303 (1999). “[C]ircumstantial evidence is not limited to those instances in which
the circumstances support only one logical conclusion; instead, circumstantial evidence will
suffice whenever an inference may reasonably be drawn therefrom.” Id.¶ 42 Courts rightfully grant directed verdicts if the plaintiff in a civil case fails to meet the
burden of production regarding each element of his claim, and proof that relies upon mere
conjecture or speculation is insufficient. Thacker v. UNR Industries, Inc., 151 Ill. 2d 343, 354
(1992). “This ‘burden of production’ is met with regard to a given element of proof when there
is some evidence which, when viewed most favorably to the plaintiff’s position, would allow a
reasonable trier of fact to conclude the element to be proven.” Id. However, even if the plaintiff
produces some evidence of a fact, a motion for a directed verdict may still be granted because
some evidence of a fact that may seem substantial when viewed alone does not always retain
such significance when viewed in the context of all of the evidence. Pedrick, 37 Ill. 2d at
504-05, 510 (a judgment n.o.v. was appropriate where the plaintiffs’ testimony that the railroad
crossing lights were not operating when a train struck their car was equivocal and ambiguous,
but the railroad employees, who were corroborated by two disinterested witnesses, testified
unequivocally that the lights were working). “As the light from a lighted candle in a dark room
seems substantial but disappears when the lights are turned on, so may weak evidence fade
when the proof is viewed as a whole.” Id. at 504-05; see also People v. Rosochacki, 41 Ill. 2d
483, 490 (1969) (although courts are not to weigh the evidence, the Pedrick decision “fully
contemplates that trial courts are to decide when weak evidence has so faded in the strong light
of all of the proof that only one verdict is possible of rendition”).
¶ 43 The necessary elements of plaintiffs’ medical malpractice claim required them to prove (1)
the applicable standard of care, (2) the health-care provider’s negligent failure to comply with
the applicable standard of care, and (3) a resulting injury proximately caused by the alleged
negligence. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004). “ ‘Unless the physician’s
negligence is so grossly apparent or the treatment so common as to be within the everyday
knowledge of a layperson, expert medical testimony is required to establish the standard of
care and the defendant physician’s deviation from that standard.’ ” Id. (quoting Purtill v. Hess,
111 Ill. 2d 229, 242 (1986)). Furthermore, proximate cause “must be established by expert
testimony to a reasonable degree of medical certainty, and the causal connection must not be
contingent, speculative, or merely possible.” Ayala v. Murad, 367 Ill. App. 3d 591, 601 (2006).
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¶ 44 Our review of the record establishes that the trial court correctly determined as a matter of
law that plaintiffs failed to meet the burden of production regarding Dr. Murino’s breach of the
standard of care. The most that can be said about plaintiffs’ evidence is that it would have been
highly speculative for the jurors to infer therefrom that Dr. Murino negligently delayed leaving
the ER to treat Reynolds until the code blue was issued at 4:10 a.m. While there is no rule
against basing one inference upon another inference, the chain of inferences must not become
so tenuous that the final inference has no probative value. Leavitt v. Farwell Tower Ltd.
Partnership, 252 Ill. App. 3d 260, 268 (1993). The jury could not reasonably infer that a delay
that breached the standard of care occurred because it would have been mere speculation for
the jury to infer that (1) based on the ICU staff’s understanding of the implications of a tension
pneumothorax finding, at about 3:57 a.m., someone in the ICU immediately contacted
someone in the ER and (2) based on the ER’s triage system, someone in the ER immediately
informed Dr. Murino about the tension pneumothorax.
¶ 45 Nurse Alling testified that her notes were not intended to record specific and accurate times
about Reynolds’s treatment and were written several hours after the events occurred. The time
notations within her notes—which indicated that at 3:50 a.m. she learned about the tension
pneumothorax and that at 3:55 a.m., in addition to re-paging the pulmonologist and calling the
attending physician, the “ER Dr. [was] paged also”—were her best guesses or rough estimates.
This evidence must be viewed in the context of all the evidence. Specifically, the
computer-automated time stamps on the electronic records and logs of the offsite radiology
service and the telephone company, which entities had no apparent interest in the outcome of
this lawsuit, indicated that the offsite radiologist did not begin reading Reynolds’s X-ray until
3:55 a.m. and did not telephone the ICU to report his findings until 3:57 a.m. Moreover,
plaintiffs’ expert Dr. DeBehnke conceded that the computer-automated time stamps were more
likely accurate than Alling’s time notations.
¶ 46 We cannot and need not resolve the conflict as to the timeline evidence. Rather, in the
context of our directed verdict analysis, we decide only if the significance of the “some
evidence” of a fact produced by plaintiffs fades when the proof is viewed as a whole. See
Pedrick, 37 Ill. 2d at 504-05; Rosochacki, 41 Ill. 2d at 490.
¶ 47 Nurse Alling did not testify that upon learning of the tension pneumothorax finding,
someone in the ICU would have immediately telephoned the ER for assistance. Instead, Alling
testified that she notified the ICU charge nurse about the finding. While Alling attempted to
contact the “on call” doctor from the attending physician’s group to try to get a consult for a
trauma surgeon to come in, the charge nurse probably called the house supervisor because the
ICU’s objective was to “reach out” to find a physician who could get to the ICU the fastest and
the house supervisor had the information about who was available in the hospital. In addition,
plaintiffs did not call the ICU charge nurse on duty to testify about the events on the date at
issue or the ICU’s custom and practice in this type of situation. Because what happens in an
ICU under the circumstances present here was not a matter within the common experience of
the jurors, it was not reasonable based on the evidence presented at trial to infer that someone
in the ICU sought assistance at about 3:57 a.m. by immediately telephoning the ER first.
¶ 48 We also reject plaintiffs’ assertion that the ER’s triage system constituted “powerful
circumstantial evidence” from which the jury reasonably could have inferred that Dr. Murino
was notified about the ICU’s tension pneumothorax patient as soon as someone in the ER
received the ICU’s telephone call. According to plaintiffs, the jury reasonably could have
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inferred that the triage system, which required that Dr. Murino should be notified immediately
about a dying patient, had worked effectively at the time in question but Dr. Murino hesitated
to leave the ER, based on EMS’s instruction not to leave the ER for non-code blue
emergencies.
¶ 49 Circumstantial evidence “is the proof of certain facts and circumstances from which the
jury may infer other connected facts which usually and reasonably follow according to the
common experience of mankind.” (Emphases added.) Pace v. McClow, 119 Ill. App. 3d 419,
423-24 (1983). What happens in an ER when it receives a telephone call from the ICU for
assistance is not a matter within the common experience of mankind, and we find no
circumstantial evidence sufficient to support the inference plaintiffs urge on appeal.
¶ 50 Plaintiffs did not call any witnesses from the ER to testify about their custom and practice
when they receive a call from the ICU for assistance. However, Dr. Murino testified that the
ER nurses initially classified patients under the ER’s triage system, which was a fluid and
ongoing process. A telephone call from the ICU to the ER could be answered by anyone,
including administrative staff; it depended on who was around. The call could bounce around
if everyone in the ER was busy in a room assisting someone, starting an IV, etc. However,
someone should be made aware of the call, and then Dr. Murino “hopefully” would be made
aware of it as soon as possible.
¶ 51 Dr. Murino also testified that even though his ER patients at the time were not suffering
from a condition equal to or more serious than Reynolds’s condition, Dr. Murino still had to
discuss the ER patients’ treatment plans with the ER nurses and observe any high risk ER
patients before he could leave the ER to treat Reynolds. Dr. Murino testified that he was
moving as fast as he could, was leaving the ER as the code blue page was heard on the public
address system at 4:10 a.m., and had begun treating Reynolds by 4:12 a.m. Contrary to
plaintiffs’ argument on appeal, it was not reasonable, based on the evidence presented at trial,
to infer that Dr. Murino was notified about the tension pnuemothorax as soon as the ER
received the ICU’s call and sufficiently in advance of 4:10 a.m. to have made it to Reynolds’s
bedside in time to prevent his cardiac arrest.
¶ 52 Furthermore, the testimony of plaintiffs’ expert, Dr. DeBehnke, does not support plaintiffs’
negligence claims. Although Dr. DeBehnke testified that Dr. Murino was required to leave the
ER “immediately” upon being told of Reynolds’s condition, Dr. DeBehnke admitted that he
could not find any facts of a delay. Because Dr. DeBehnke did not know when Dr. Murino was
told of Reynolds’s condition and, thus, did not know how long it took for Dr. Murino to
respond to that information, Dr. DeBehnke could not opine to a reasonable degree of medical
certainty whether Dr. Murino was guilty of delay and whether he breached the standard of care.
¶ 53 We also reject plaintiffs’ assertion that they presented ample evidence to support the
assumptions in the hypothetical questions posed to Dr. DeBehnke and that his answers to those
hypothetical questions constituted sufficient evidence for the jury to have found that Dr.
Murino was negligent.
“Counsel has a right to ask an expert witness a hypothetical question that assumes
facts that counsel perceives to be shown by the evidence. [Citation.] The assumptions
contained in the hypothetical question must be based on direct or circumstantial
evidence, or reasonable inferences therefrom. [Citation]. The hypothetical question
*** should state facts that the interrogating party claims have been proved and for
which there is support in the evidence. ***
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It is within the sound discretion of the trial court to allow a hypothetical question,
although the supporting evidence has not already been adduced, if the interrogating
counsel gives assurance it will be produced and connected later. Evidence admitted
upon an assurance that it will later be connected up should be excluded upon failure to
establish the connection. [Citations.]” Leonardi v. Loyola University of Chicago, 168
Ill. 2d 83, 96 (1995).
¶ 54 As discussed above, plaintiffs failed to present direct or circumstantial evidence from
which the jury could properly infer who or at what time someone in the ICU informed the ER
about the tension pneumothorax, and who or at what time someone in the ER conveyed that
information to Dr. Murino. Accordingly, in the absence of evidence to support the factual
assumptions in the hypothetical questions posed to Dr. DeBehnke, his testimony was not
probative of any alleged delay by Dr. Murino or breach of the standard of care. Plaintiffs were
required to present expert medical evidence as to the breach of care (Purtill, 111 Ill. 2d at 242),
and failed to do so. Under these circumstances, the jury could not have decided whether Dr.
Murino was guilty of a delay without engaging in pure speculation.
¶ 55 Finally, plaintiffs argue that the directed verdict was improper because the evidence and
reasonable inferences drawn therefrom showed a substantial factual dispute regarding the
timeline of the events and the jury’s determination regarding the conflicting evidence and
assessment of the credibility of Dr. Murino’s claim that he did not delay leaving the ER would
have been decisive to the outcome. We do not agree. Regardless of whether the offsite
radiologist telephoned the ICU at 3:50 a.m. or 3:57 a.m., in the absence of the necessary facts
about when the ICU actually contacted the ER and when Dr. Murino was actually informed of
the tension pneumothorax, the jury could only engage in pure speculation about whether a
delay occurred. Because the jury lacked the necessary facts to determine whether there was a
delay, the factual dispute about the time of the radiologist’s telephone call cannot be said to be
substantial and a purely speculative credibility assessment of Dr. Murino’s claim of no delay
cannot be considered decisive to the outcome.
¶ 56 Because plaintiffs failed to meet the burden of production to show that Dr. Murino
breached the standard of care, plaintiffs’ claims against EMS based on Dr. Murino’s alleged
breach similarly fail.
¶ 57 All of the evidence, viewed most favorably to plaintiffs, so overwhelmingly favors EMS
and Dr. Murino that no contrary verdict based on this evidence could ever stand. The trial court
properly granted their motion for a directed verdict at the close of plaintiffs’ presentation of
evidence.
¶ 58 C. Precluding Medical Malpractice Insurance Evidence
¶ 59 Plaintiffs argue that the trial court committed reversible error by precluding testimony that
EMS told Dr. Murino they would not be covered by their medical malpractice insurance if he
left the ER to treat a hospital inpatient for a non-code blue emergency. According to plaintiffs,
because Dr. Murino testified that he did not delay leaving the ER to treat the tension
pneumothorax, even though a code blue had not been issued yet, the precluded evidence would
have challenged his credibility by showing he had a powerful incentive not to leave the ER
prior to the issuance of the code blue. Plaintiffs argue that the precluded evidence was
“centrally relevant to the jury’s determination of Dr. Murino’s credibility, and it was error for
the trial court to deprive the jury of this evidence.” Also, plaintiffs contend that limiting
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instructions to the jury about the proper use of this evidence would have prevented any
prejudice to defendants.
¶ 60 A trial court’s ruling on a motion in limine, which determines whether certain evidence
may be referred to or offered at trial, will not be disturbed on review, absent a clear abuse of
discretion. Swick v. Liautaud, 169 Ill. 2d 504, 521 (1996). A trial court abuses its discretion
only if it acts arbitrarily without the employment of conscientious judgment, exceeds the
bounds of reason and ignores recognized principles of law, or adopts a position that no
reasonable person would take. Schmitz v. Binette, 368 Ill. App. 3d 447, 452 (2006). Moreover,
an “error in the exclusion or admission of evidence does not require reversal unless one party
has been prejudiced or the result of the trial has been materially affected.” (Internal quotation
marks omitted.) Cetera v. DiFilippo, 404 Ill. App. 3d 20, 36 (2010).
¶ 61 “Reference to the fact that defendant is protected by insurance or some other indemnity
agreement ordinarily is improper and constitutes reversible error.” Golden v. Kishwaukee
Community Health Services Center, Inc., 269 Ill. App. 3d 37, 44 (1994). The rationale
underlying this rule is that such information is not only irrelevant to the determination of
negligence but also artificially inflates any verdict. Imparato v. Rooney, 95 Ill. App. 3d 11, 15
(1981). Exceptions to this general rule “allow introduction of the fact of insurance where it
bears materially upon the credibility of a witness or an impeaching statement.” Golden, 269 Ill.
App. 3d at 44; see also Boettcher v. Fournie Farms, Inc., 243 Ill. App. 3d 940, 945 (1993)
(while the existence of insurance is not admissible to show fault, it may be shown in
connection with issues such as agency, ownership, control, bias, or prejudice of a witness).
However, even relevant evidence may be excluded if its probative value is substantially
outweighed by its prejudicial impact or potential to confuse or mislead the jury. Gill v. Foster,
157 Ill. 2d 304, 313 (1993).
¶ 62 Plaintiffs contend that the evidence about EMS’s lack of malpractice insurance coverage
for non-code blue emergencies was relevant to impeach Dr. Murino’s credibility regarding
when he left the ER. However, even assuming the relevance of the precluded evidence,
plaintiffs failed, as discussed above, to show when Dr. Murino was informed about the tension
pneumothorax. Thus, the issue of his credibility about when he left the ER was not materially
significant because the jury lacked the necessary facts to enable them to measure the duration
of any alleged delay. Moreover, the trial court did not prevent plaintiffs from challenging Dr.
Murino’s credibility with evidence that he understood it was EMS’s policy that he should not
leave the ER to treat a hospital inpatient unless a code blue had been called. The trial court
believed that the mention of medical malpractice insurance in this case would inflame the jury
and weighed the probative value of the insurance evidence against the potential prejudice to
Dr. Murino, EMS, and the seven codefendants.
¶ 63 We conclude that the trial court appropriately used its discretion and crafted a ruling that
addressed plaintiffs’ concerns to present probative evidence about Dr. Murino’s incentive to
delay leaving the ER, while protecting defendants and codefendants from the danger that the
jury would misuse the insurance evidence against them.
¶ 64 D. Loss of Consortium and Loss of a Chance to Marry
¶ 65 Finally, plaintiffs argue that this court should recognize Lessner’s claims for loss of
consortium and loss of chance to marry because she and Reynolds were in a long-term
committed relationship for many years and their scheduled wedding was less than 20 days
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away when defendants’ alleged negligence prevented Lessner and Reynolds from marrying.
Lessner acknowledges that her claims are not recognized under current Illinois law but she
seeks in good faith a change in the law based on the unique circumstances of this case, i.e., her
and Reynolds’s long-standing domestic partner relationship and commitment and imminent
plan to marry and have children.
¶ 66 We review de novo the trial court’s dismissal, pursuant to section 2-615 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)), of Lessner’s claims for loss of
consortium and loss of chance to marry. Blumenthal v. Brewer, 2016 IL 118781, ¶ 19. Motions
to dismiss under section 2-615 of the Code challenge the legal sufficiency of a pleading based
on defects apparent on its face. Id. In ruling on a section 2-615 motion, a court must accept as
true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Id.The court determines whether the allegations of the complaint, when construed in the light
most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief
may be granted. Id.¶ 67 Clear Illinois precedent has established that common-law marriages are invalid in Illinois,
and this prohibition is statutory in nature. 750 ILCS 5/214 (West 2014); Hewitt v. Hewitt, 77
Ill. 2d 49 (1979); Blumenthal, 2016 IL 118781, ¶ 52. “[T]he statutory provision abolishing
common-law marriage *** embodied the public policy of Illinois that individuals acting
privately by themselves, without the involvement of the State, cannot create marriage-like
benefits.” Blumenthal, 2016 IL 118781, ¶ 61. See also Hewitt, 77 Ill. 2d at 61 (the recognition
of mutual property rights between unmarried cohabitants would violate the policy of the
Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/1-1 et seq. (West 2014), which
has an underlying purpose “ ‘to strengthen and preserve the integrity of marriage and
safeguard family relationships’ ” (quoting Ill. Rev. Stat. 1977, ch. 40, ¶ 102)).
¶ 68 We are bound by our supreme court’s decisions and have a duty to follow them in similar
cases. Price v. Phillip Morris, Inc., 2015 IL 117687, ¶ 38. Furthermore, this court has rejected
loss of consortium claims by members of an unmarried couple. See Gillenwater v. Honeywell
International Inc., 2013 IL App (4th) 120929; Monroe v. Trinity Hospital-Advocate, 345 Ill.
App. 3d 896 (2004); Medley v. Strong, 200 Ill. App. 3d 488 (1990); Sostock v. Reiss, 92 Ill.
App. 3d 200 (1980). Accordingly, we reject plaintiffs’ request for a good faith extension of
such a claim to the facts here.
¶ 69 Also, plaintiffs cite no relevant precedent indicating that Illinois courts recognize a cause
of action for the loss of a chance to marry, and we decline plaintiffs’ invitation to recognize
such a cause of action on the facts here. Lessner and Reynolds lived together for 16 years, and
they were never barred by any state or federal law from marrying each other. They did not seek
the protections and privileges that flow from the legally recognized union of marriage for over
a decade. That delay was their choice.
¶ 70 Plaintiffs argue that Illinois law has not evolved “to catch up with [the] fundamental
changes in the everyday lives of citizens” and the changing “historical milieu” concerning
long-term committed but unmarried relationships. However, the concerns that led to the
statutory prohibition against recognizing common-law marriages are long-standing and
diverse. This court is not tasked with evaluating and setting public policy (Clark v. Children’s
Memorial Hospital, 2011 IL 108656, ¶ 79); that job is reserved for our duly elected legislature,
which possesses the necessary investigative and fact-finding abilities. Hewitt, 77 Ill. 2d at 61;
Blumenthal, 2016 IL 118781, ¶ 77.
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¶ 71 We conclude that the trial court properly granted defendants’ motion to dismiss Lessner’s
claims for loss of consortium and loss of chance to marry, pursuant to section 2-615 of the
Code.
¶ 72 III. CONCLUSION
¶ 73 The trial court did not err in granting the directed verdict because the evidence, even
viewed in the light most favorable to plaintiffs, overwhelmingly favored EMS and Dr. Murino
so that no jury could find for plaintiffs. Also, the trial court’s decision to preclude evidence
about medical malpractice insurance was not an abuse of discretion. Finally, we cannot
recognize plaintiff Lessner’s claims for loss of consortium and loss of a chance to marry.
¶ 74 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 75 Affirmed.
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