Graves v. Rosewood Care Center, Inc., of Edwardsville

Citations: 2012 IL App (5th) 100033; 360 Ill. Dec. 24Docket: 5-10-0033

Court: Appellate Court of Illinois; April 2, 2012; Illinois; State Appellate Court

Original Court Document: View Document

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Paul Graves, as the special administrator of his deceased father Alfred Graves' estate, filed a lawsuit against Rosewood Care Center, Inc. under the Illinois Nursing Home Care Act after Alfred suffered a hip fracture while under the care of the facility. The case, which followed a mistrial due to a deadlocked jury, resulted in a verdict favoring the plaintiff. On appeal, Rosewood raised multiple issues: 1) the verdict's alignment with the evidence, 2) the trial court's instruction regarding neglect, 3) the instructions based on regulations under the Act, 4) the use of a specific jury instruction allowing adverse inference for failure to produce evidence, and 5) the admission of a bill from another nursing home as evidence. The appellate court affirmed the lower court's judgment. The case involved testimony from Rosewood employees, including Steve Marsho, who discussed the facility's marketing and respite care services.

On January 14, 2003, Marsho visited the plaintiff’s home regarding Alfred's potential respite care at Rosewood. He completed a level-of-care assessment, rating Alfred at level 3 for care needs such as bathing, dressing, and incontinence, while assessing him at level 2 for mobility, requiring standby assistance for transfers. Although Marsho did not confirm that he shared this assessment with the nursing director, he suggested it would have been communicated to the nursing staff. Former nurse administrator Jacqueline Hern indicated that Marsho's assessment would be in Alfred's financial file and believed it was communicated to nursing staff.

Licensed practical nurse Tanesha Childress, who admitted Alfred, did not see Marsho’s assessment and noted discrepancies in her own evaluation regarding Alfred's need for assistance with transfers. Childress acknowledged her failure to complete the required nursing admission checklist within 24 hours, marking only that Alfred arrived at 6 p.m. 

Nurse Nicole Jacks, working the night shift, documented that Alfred refused to undress and was later found on the floor, indicating a possible fall. Alfred reported hip pain but declined hospital care. Jacks discovered the call light was non-functional and had it replaced after reorienting Alfred. 

The plaintiff testified about Alfred's deteriorating health, including significant balance issues and dementia, expressing concern for Alfred's safety when left alone, as he had previously slipped off the toilet and was experiencing memory loss. The plaintiff and his wife ensured one of them was always present with Alfred, except during his naptime.

Plaintiff acknowledged during cross-examination that Alfred did not receive a cane until 2002 and could navigate the lower level of the house with its assistance. The plaintiff confirmed that Alfred did not require help to use the bathroom, neither from the plaintiff nor his wife, and was able to move independently with the cane. The plaintiff noted that Alfred had his own bedroom and that they would check on him occasionally, primarily in response to noises, rather than routinely every night.

Defendant highlighted an incident in December 2002, where Alfred slipped off the toilet seat, attributed to a toilet seat extension that may have slipped or Alfred losing balance. Dr. Wolff, Alfred's physician, testified that there were no indications in medical records of Alfred needing a walking aid before moving to Florida. After a physical examination on October 28, 2002, Dr. Wolff described Alfred as elderly and somewhat frail but alert, with no documented use of a cane. Dr. Wolff also confirmed that he authorized Alfred's admission to Rosewood with standing orders that allowed him to walk without assistance, indicating no bed restrictions.

During cross-examination, Dr. Wolff disclosed that Alfred had experienced significant weight loss and showed signs of peripheral neuropathy, alongside receiving medication typically prescribed for Alzheimer’s. He indicated that transitioning to a new environment might increase confusion for someone with dementia.

Alfred underwent hip surgery performed by Dr. Sola in January 2003 following a fall. By March 27, 2003, Dr. Sola assessed that the fracture was well-aligned and treated. Although Alfred experienced difficulty walking due to leg weakness attributed to immobility post-fracture, Dr. Sola noted that he was ambulating without pain and had good mobility during follow-up visits. In July 2003, while Alfred was reported to be in a wheelchair, Dr. Sola suggested this was due to the distance from the parking lot rather than a lack of mobility. Alfred moved to Hitz Nursing Home in April 2003 and passed away in September 2004. The jury later awarded the plaintiff $149,115.13, and the court granted attorney fees. The legal standard for care in nursing facilities, as defined by Illinois law, emphasizes the obligation to avoid abuse or neglect, equating it with ordinary or reasonable care, and supports the imposition of treble damages for negligent acts.

Defendant argues that the jury's verdict was contrary to the manifest weight of the evidence, suggesting that the jury improperly presumed negligence simply because a resident fell. However, a review of the evidence and jury instructions indicates that the jury did not operate under such a presumption, and the record supports a finding of negligence. 

Defendant's case heavily relied on testimonies from plaintiff and Dr. Wolff, who argued that Alfred was independent and mobile. However, plaintiff also noted Alfred's significant weight loss, balance issues, and dementia. The defense claimed that Alfred's care adhered to Dr. Wolff's recommendations, citing previous case law establishing that care decisions fall within the discretion of the treating physician. They emphasized that restraints would require physician authority, but plaintiff's claim did not focus on restraint needs.

Dr. Wolff's testimony was ambiguous; he acknowledged Alfred's frailty and noted that moving to a new facility could worsen his dementia-related confusion. Defendant's argument largely overlooked other significant evidence, including testimony from a former employee who assessed Alfred's care needs prior to his admission. This testimony highlighted gaps in care communication and supervision, as well as issues with faulty equipment, supporting the verdict against the defendant.

Defendant also raised multiple objections to the jury instructions provided by the trial court, arguing that the definition of neglect was incorrect and that certain instructions implied a presumption of liability. Specifically, defendant contended that the court's failure to use the term "adequate" in defining neglect was erroneous, referring to statutory definitions. However, the claims regarding the jury instructions did not demonstrate merit.

The plaintiff argues that the jury instruction omitted the term "adequate," but the transcript confirms its absence. The plaintiff had submitted a revised instruction that included the word, yet the defendant did not object during the trial or in a posttrial motion, failing to document any error according to Orzel v. Szewczyk. Any potential prejudice from this omission is deemed negligible, as the overall jury instructions correctly conveyed the liability standard. 

The defendant further claims that the court erred by defining "neglect," which allegedly led to confusion due to conflicting standards of care. However, the jury was instructed that the definition of neglect should be considered alongside an administrative regulation stating that a facility “shall not neglect a resident.” The instructions clarified that if the jury found a violation of this regulation, it could factor that into its determination of negligence, per IPI Civil (2000) No. 60.01. 

The instructions collectively communicated the appropriate standard of care, and defining neglect was neither mandatory nor prohibitive. Illinois law supports the admissibility of standards, rules, and regulations in negligence cases to assist jurors in establishing the standard of care, as outlined in Grimming v. Alton Southern Ry. Co. The Illinois Supreme Court, in Davis v. Marathon Oil Co., established that a violation of a statute intended to safeguard human life is prima facie evidence of negligence, provided these statutes are valid and enforceable. This principle was reinforced by the Darling case, which allowed the admission of hospital regulations as evidence to inform the jury about the defendant's knowledge and the feasibility of compliance, without conclusively determining the standard of care.

The jury instructions provided in this case were deemed appropriate for guiding the jury on assessing the plaintiff's knowledge and actions. The instructions did not definitively set the standard of care; rather, they allowed the jury to consider any violations alongside other evidence to evaluate potential contributory negligence. The trial court was correct in including instructions based on regulations from the Nursing Home Care Reform Act, which outlined the definition of neglect and mandated facilities to have written policies that promote safe practices. 

Illinois law permits juries to be instructed on regulatory language if it is intended to protect life or property, is validly adopted, and has legal force. The regulations cited in this case fulfilled these requirements, as they were designed to prevent the type of injury the plaintiff alleged and the plaintiff belonged to the protected class. Evidence supporting the claim that a violation of these regulations was a proximate cause of the injury must also be presented.

The Nursing Home Care Reform Act of 1979 was established due to concerns over inadequate treatment in nursing homes and aimed to reform the industry by setting standards for resident care, defining occupational requirements for staff, and enhancing enforcement powers for the Illinois Department of Public Health. The Act provided both civil and criminal penalties for noncompliance and allowed residents to seek statutory remedies, recognizing the importance of oversight by residents and their communities in ensuring proper care.

Defendant references the case Stogsdill v. Manor Convalescent Home, where the court upheld a directed verdict for a nursing home despite regulations requiring written patient care policies, deeming these regulations too vague to establish a standard of due care. In contrast, the current case involves a plaintiff whose evidence suggests that the defendant failed to comply with specific regulations, contributing to the injury of an individual, Alfred. The trial court permitted the jury to consider these regulatory violations when assessing negligence.

Defendant challenges the trial court's instruction based on IPI Civil (Supp. 2003) No. 5.01, arguing it enabled the jury to infer negatively from the absence of a certified nursing assistant's flow sheet. The appropriateness of such an instruction lies within the trial court's discretion, contingent upon the presentation of foundational evidence regarding the control and availability of the missing evidence. 

Defendant claims the plaintiff failed to prove the existence or control of the flow sheet, citing testimony from nursing staff. However, the plaintiff established a foundation for the instruction, including testimony indicating that the form was routinely completed. Consequently, the trial court's decision to issue the instruction was deemed appropriate and within its discretion.

The defendant argued that the trial court erred by admitting a bill from Hitz Nursing Home for care provided after Alfred left Rosewood, asserting that medical evidence indicated Alfred could walk without pain shortly after concluding physical therapy. Testimony from nurse Poole suggested that Alfred could walk 400 feet with a wheel walker at discharge. However, she later clarified that her assertion was based on a discharge note indicating he could ambulate 200 feet with assistance, and that he had not met long-term therapy goals, such as walking independently without a walker.

Dr. Sola attributed Alfred's leg weakness to inactivity rather than the fracture, stating he was walking without discomfort by July 2003. Nevertheless, Dr. Sola's broader testimony did not confirm that Alfred had returned to his pre-fall functional level, as he noted that many patients do not regain mobility, especially those who had difficulties before the fall. He suggested that if Alfred had not regained his previous level of function, it could be attributed to the fall.

The evidence supported the conclusion that Alfred had not fully recovered; he failed to meet physical therapy goals, and even after therapy, he could only stand and bear weight. Plaintiff testified that after the fall, neither he nor his wife could care for Alfred at home. The trial court's admission of the Hitz bill and its consideration by the jury were deemed appropriate.

On appeal, the plaintiff sought a remand for additional attorney fees and costs, referencing Rath v. Carbondale Nursing Rehabilitation Center, Inc. However, the court found that the plaintiff did not cite any record pleading necessitating a remand, thus affirming the case. The court noted that the plaintiff could file a supplemental petition for attorney fees incurred during the appellate process, as established in Berlak v. Villa Scalabrini Home for the Aged, Inc. The case was affirmed.