{ "id": 4269684, "name": "JANE PETRE, Special Adm'r of the Estate of James Petre, Plaintiff-Appellee, v. CARDIOVASCULAR CONSULTANTS, S.C., d/b/a Cardiovascular Medical Associates, S.C., Defendant-Appellant (Vincent A. Kucich et al., Defendants)", "name_abbreviation": "Petre v. Cardiovascular Consultants, S.C.", "decision_date": "2007-05-30", "docket_number": "Nos. 1-06-1007, 1-06-1809 cons.", "first_page": "929", "last_page": "944", "citations": [ { "type": "official", "cite": "373 Ill. App. 3d 929" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "803 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "84", "parenthetical": "distinguishing medical malpractice claim based on negligence of professionals from an institutional negligence claim against a hospital" } ], "opinion_index": 0 }, { "cite": "345 Ill. App. 3d 565", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5873517 ], "year": 2003, "pin_cites": [ { "page": "574-75", "parenthetical": "distinguishing medical malpractice claim based on negligence of professionals from an institutional negligence claim against a hospital" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0565-01" ] }, { "cite": "211 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "pin_cites": [ { "page": "256-57", "parenthetical": "discussing a hospital's duty to a patient in an institutional negligence case" } ], "opinion_index": 0 }, { "cite": "33 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2886822 ], "year": 1965, "pin_cites": [ { "page": "330-331", "parenthetical": "discussing a hospital's duty to a patient in an institutional negligence case" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0326-01" ] }, { "cite": "856 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2006, "pin_cites": [ { "page": "408-09" }, { "page": "409" } ], "opinion_index": 0 }, { "cite": "222 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3601786 ], "year": 2006, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0218-01" ] }, { "cite": "711 N.E.2d 440", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "442" } ], "opinion_index": 0 }, { "cite": "305 Ill. 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App. 3d", "case_ids": [ 1209173 ], "year": 2002, "pin_cites": [ { "page": "938" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0935-01" ] } ], "analysis": { "cardinality": 1282, "char_count": 38959, "ocr_confidence": 0.75, "pagerank": { "raw": 1.0127974020152596e-07, "percentile": 0.54258703885825 }, "sha256": "3c6295a31459bb6378564a387e90abba832c7530644ed56dd07411ed050a76cb", "simhash": "1:97b49c905bc7edf4", "word_count": 6392 }, "last_updated": "2023-07-14T16:22:18.400209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JANE PETRE, Special Adm\u2019r of the Estate of James Petre, Plaintiff-Appellee, v. CARDIOVASCULAR CONSULTANTS, S.C., d/b/a Cardiovascular Medical Associates, S.C., Defendant-Appellant (Vincent A. Kucich et al., Defendants)." ], "opinions": [ { "text": "PRESIDING JUSTICE THEIS\ndelivered the opinion of the court:\nThis is the third time that this case has come before the appellate court. Plaintiff Jane Petre (plaintiff), the special administrator of the estate of James Petre (Petre), filed this medical malpractice action against defendants Cardiovascular Consultants, S.C., d/b/a Cardiovascular Medical Associates, S.C. (CMA), Dr. Vincent A. Kucich, Dr. Robert E. Applebaum, Dr. Hershel L. Wix, Dr. David Looyenga, Dr. Robert Prentice, Dr. George Gustafson, Hickory Cardiology Associates, Ltd., and St. Francis Hospital and Health Center. Plaintiff sought recovery for injuries sustained by Petre following coronary artery bypass surgery performed by Dr. Kucich at St. Francis Hospital and Health Center in Blue Island, Illinois. After the surgery, Petre developed a postoperative wound infection, which ultimately led to the removal of Petre\u2019s sternum. Prior to the first trial in 2000, plaintiff entered into a settlement with St. Francis Hospital and voluntarily dismissed Dr. Applebaum, Dr. Looyenga, Dr. Prentice, Dr. Gustafson, and Dr. Wix from the case.\nFollowing a third trial, the jury returned a verdict in favor of Dr. Kucich but against CMA, and awarded plaintiff $814,443.97. CMA now appeals, contending that: (1) the trial court abused its discretion in striking portions of CMA\u2019s reply in support of its posttrial motion and all of CMA\u2019s arguments should be considered by this court on appeal; (2) it is entitled to a judgment notwithstanding the verdict because plaintiff failed to establish a prima facie case of negligence against any nonphysician employee or agent of CMA; (3) it is entitled to a judgment notwithstanding the verdict because the jury\u2019s verdict is not supported by the evidence and because plaintiff failed to present any affirmative evidence of negligence; (4) it is entitled to a new trial because the trial court erred in permitting plaintiff to go beyond the scope of defendants\u2019 examination of Dr. Kucich in defendants\u2019 case-in-chief to present defendants\u2019 theory of liability; and (5) the jury\u2019s verdict is against the manifest weight of the evidence. For the following reasons, we reverse the trial court\u2019s judgment and remand for a fourth trial.\nThe record discloses the following facts and procedural history relevant to this appeal. In their second amended complaint, plaintiff alleged the following general facts. Plaintiff was admitted to St. Francis Hospital on November 18, 1996. Several days later, on November 26, 1996, Dr. Kucich, who was a member of the CMA practice, performed coronary artery bypass surgery on Petre. While he was under the care of Dr. Kucich and CMA, Petre developed a bacterial infection. Nevertheless, Petre was discharged from St. Francis Hospital on December 2, 1996. Ultimately, in January 1997, Petre underwent a second surgery to correct and cure the infection.\nPlaintiff raised 19 counts against all of the defendants involved, two of which were against CMA. In count I, plaintiff raised a medical malpractice claim against CMA based on a theory of vicarious liability. Plaintiff alleged that CMA, \u201cacting by and through its agents, employees, and medical staff, including but not limited to [Dr.] Kucich and [Dr.] Applebaum or others,\u201d committed medical malpractice by:\n\u201c(a) Carelessly and negligently failing to provide appropriate antibiotic prophylaxis for the cardiac surgery performed of [sic] James Petre;\n(b) Carelessly and negligently prescribed and utilized excessive and unnecessary amounts of corticosteroids which predispose to infection;\n(c) Carelessly and negligently failed to recognize a sternal wound infection prior to the discharge of James Petre from St. Francis Hospital and Health Center on December 2, 1996;\n(d) Carelessly and negligently failed to respond appropriately to cultures which identified the sternal wound infection; and\n(e) Carelessly and negligently failed to provide responsible surgical follow-up after discharge on December 2, 1996.\u201d\nAs a result, plaintiff alleged that Petre suffered great pain and mental anguish, disability, and disfigurement, which rendered him unable to pursue his occupation and resulting in loss of income. In count XI, plaintiff alleged that as a result of Petre\u2019s injury, plaintiff was deprived of Petre\u2019s companionship, valuable services, and normal family relations. Dr. Kucich and CMA filed an answer denying misconduct.\nThe case was tried for the first time in 2000. As noted above, prior to that trial, plaintiff settled with St. Francis Hospital and voluntarily dismissed Dr. Applebaum, Dr. Looyenga, Dr. Prentice, Dr. Gustafson, and Dr. Wix from the case. The jury returned a verdict in favor of plaintiff in the amount of $465,000 against Dr. Kucich and CMA. Defendants appealed, and this court reversed, holding that the trial court \u201cerred as a matter of law both in precluding evidence of the dismissed Hickory physicians\u2019 conduct and in refusing to give the appropriate jury instruction, thereby denying defendants a fair trial.\u201d Petre v. Kucich, 331 Ill. App. 3d 935, 938, 771 N.E.2d 1084, 1087 (2002). We then remanded the case for a second trial.\nThe second trial occurred in 2003. In that instance, the jury returned a verdict in favor of Dr. Kucich and CMA. Plaintiff appealed, and this court reversed, holding that the trial court was required to give the long-form jury instruction on sole proximate cause to explain to the jury the impact of the evidence of third-party negligence on defendants\u2019 negligence. Petre v. Kucich, 356 Ill. App. 3d 57, 66, 824 N.E.2d 1117, 1124 (2005). We thus remanded the case again.\nThe case then proceeded to trial in 2005. However, because two of plaintiffs witnesses were unavailable, the court declared a mistrial.\nThe case was subsequently tried for the third time, and that trial is the subject of this appeal. At that trial, plaintiff and Petre\u2019s younger sister, Diane Prindle, testified that Petre suffered a heart attack on November 18, 1996. Eight days later, Petre underwent coronary artery bypass surgery. Petre was subsequently discharged from the hospital on December 2, 1996.\nRoughly a month later, on December 31, 1996, plaintiff removed Petre\u2019s bandages to clean his wound and discovered a yellow blister larger than a quarter. Several days later, they learned that Petre had a severe infection. A plastic surgeon subsequently removed Petre\u2019s sternum and performed reconstructive surgery of the area using Pe-tre\u2019s pectoralis muscles. Petre ultimately died in December 2000 of unrelated liver cancer.\nPlaintiff offered the testimony of two expert physicians. An infectious disease expert opined that Petre suffered from a likely sternal osteomyelitis, or an infection of the sternum hone, which was due to a methicillin-resistant staphylococcus epidermidis (MRSE) infection that seeded at the time of Petre\u2019s bypass surgery. A cardiothoracic surgery expert opined that Petre should have been prophylactically administered an antibiotic called Vancomycin, which is effective against methicillin-resistant bacteria.\nPlaintiff also examined defendant Dr. Vincent Kucich as an adverse witness. Dr. Kucich testified that he was a cardiothoracic surgeon and performed Petre\u2019s bypass surgery and explained the procedure and care. In particular, care for Petre\u2019s surgical wound was done according to a protocol. Dr. Kucich would also check Petre\u2019s wound daily. On December 2, 1996, Petre had a small amount of serous, or clear, fluid draining from his surgical wound. Dr. Kucich explained that clear fluid drainage is common and usually not a sign of infection. If there were no other signs of infection, such as fever, redness, or tenderness, Dr. Kucich would not do anything further. Depending on the nature of the fluid, Dr. Kucich would obtain a culture on it.\nPlaintiffs counsel then confronted Dr. Kucich with the testimony he gave at his deposition in 1999. At that time, Dr. Kucich stated that serous fluid drainage \u201cwould be cultured routinely.\u201d He further stated that if he saw such drainage, he would order a culture. He admitted in his deposition that he followed this procedure with Petre and ordered the culture just prior to Petre\u2019s discharge. However, in his testimony at trial, Dr. Kucich questioned whether he had done so, observing that if he had ordered a culture of Petre\u2019s surgical wound drainage, Petre\u2019s medical chart would have contained a notation that he ordered a culture, and the medical chart contained no such order. He also stated that he did not remember giving the order for the culture or directing that a nurse do it. He added that, often, nurses will order a culture on their own and tell the doctor later. He did not explain when a nurse would order a culture or when a doctor would or when the nurse would tell the doctor of the results.\nNevertheless, Dr. Kucich admitted that somebody obtained a culture of Petre\u2019s surgical wound drainage. However, whether Dr. Kucich was the individual to follow up on the culture would have \u201cdepended on the circumstances.\u201d Dr. Kucich did not elaborate on these \u201ccircumstances.\u201d He did state that he did not personally check every culture because there are so many taken. Generally, he would only follow up if the drainage was purulent or if the patient had other symptoms of infection.\nThe culture in this case was positive for MRSE. However, Dr. Kucich did not learn this until sometime before his deposition in 1999. Had he known, he would have followed up with Petre. Rather, Dr. Wix, Petre\u2019s cardiologist in Kankakee, had the responsibility to follow up on the culture. This was because Petre chose not to continue his care in Blue Island. A note in Petre\u2019s medical record, which was admitted into evidence, confirms that Petre would continue his care with Dr. Wix in Kankakee due to the distance. It further indicated that Petre would call CMA\u2019s office if he had any problems. The note was written by one of CMA\u2019s secretaries.\nThe individuals on Dr. Kucich\u2019s staff who would have checked on the culture result were Marilyn Kamak, physician\u2019s assistant Ian Timms, or nurse Sue Wesensten. However, none of them checked the result. Dr. Kucich never explained how or when any of these individuals would notify him of a culture result.\nPetre was discharged from St. Francis Hospital on December 2, 1996. CMA sent a letter to Dr. Wix confirming that Petre would continue his postoperative care with Dr. Wix. Subsequently, Dr. Kucich learned that Petre suffered from an MRSE infection, which resulted in the surgical removal of Petre\u2019s sternum by another doctor.\nAfter plaintiff rested, defendants read the evidence deposition of Dr. Hershel Wix, Petre\u2019s cardiologist, into the record. Dr. Wix began treating Petre after his heart attack. He also treated Petre following his discharge from the hospital. He saw Petre on December 6, 1996, and he seemed \u201cquite stable\u201d at that time. Dr. Wix saw Petre again on December 10, 1996. At that time, he noted that Petre\u2019s surgical wound was still draining and that in some small areas, the drainage was causing \u201cmild breakdown,\u201d or deterioration, of the skin around the incision. These findings were not atypical. However, Dr. Wix saw Petre again on December 13 and 20, 1996, and he appeared normal on those dates. Dr. Wix saw Petre again on January 3, 1997, and at that time, his surgical wound showed two areas of deterioration. Dr. Wix then suspected an infection and referred Petre to Dr. David Dreyfuss, a plastic surgeon, for further care.\nDefendants then read the evidence deposition of plaintiffs infectious disease expert into the record. In that testimony, that doctor opined that prophylactic use of Vancomycin would have caused an increased risk of a sternal wound infection. A cardiothoracic surgeon also testified as an expert for the defense. He opined that it would not have been proper to administer Vancomycin to Petre prior to his surgery and concluded that Dr. Kucich complied with the standard of care in caring for Petre.\nDefendants then called Dr. Kucich to testify for the second time. He testified again about the bypass surgery and what steps he took to guard against infection. He also added that he did not see Petre after he was discharged from the hospital on December 2, 1996. Referring to Petre\u2019s medical chart, Dr. Kucich cited the note by his secretary that Petre would continue his care with Dr. Wix in Kankakee due to the distance.\nOn cross-examination, Dr. Kucich admitted that \u201cwhether or not [he] ordered [a culture] or [he] knew about it, [he] knew that there was a culture taken on December 2, 1996.\u201d He also reiterated that he noticed serous drainage from the surgical wound for the first time on December 2, 1996, but that such drainage was very common and not considered a complication. Dr. Kucich then admitted that sometimes culture results were not always delivered to the person to whom they were addressed. Accordingly, if a culture was ordered by his team personally, and not the hospital, then his team would follow up on it. However, they would not follow up on it unless his team\u2019s name was on the report.\nDr. Kucich also admitted that \u201cwe always get cultures on every fluid,\u201d and that a culture was taken on Petre according to \u201cstandard procedure.\u201d Plaintiffs counsel then asked Dr. Kucich whether it would be a breach of the standard of care if someone in his office knew about the culture result but did nothing. Plaintiffs counsel did not specify whether he was referring to the standard of care for a cardiothoracic surgeon or to some other standard of care.\nPlaintiffs counsel then confronted Dr. Kucich with his deposition testimony. At that time, when asked whether he attempted to obtain and look at the culture report within a week of it being ordered, Dr. Kucich responded that he personally did not, but someone on his staff may have. When asked if he knew \u201cfor sure\u201d whether anyone did, Dr. Kucich responded that \u201c[sjomebody obviously did because the result was noted.\u201d\nBased on his deposition, Dr. Kucich then testified at trial that he did not know about the culture result at the time, but only learned of it afterward. However, he admitted that \u201c[i]f my office knew and didn\u2019t tell someone, then yeah, there\u2019s a breach of standard of care.\u201d He also admitted that CMA, his office, was also a defendant in the case and that nurse Sue Wesensten was working under his direction.\nOn redirect examination, Dr. Kucich examined Petre\u2019s medical records. An entry dated January 8, 1997, indicated that a culture was done on January 3, 1997, which had been ordered by Dr. Wix. The notes contain no entry from the week of December 2, 1996. Dr. Kucich added that his deposition testimony did not mention when CMA received the results of the culture report from December 2, 1996. Other than Dr. Kucich\u2019s secretary\u2019s note from December 4, 1996, which indicated that Petre would continue his care with Dr. Wix in Kankakee due to the distance, and the CMA letter from December 9, 1996, which confirmed that Petre would continue his care with Dr. Wix, there are no notations from December 1996 in Petre\u2019s medical record.\nFollowing closing arguments, the jury was given various instructions. The only instruction given to the jury on how to determine the standard of care pertained to a medical doctor. That instruction provided:\n\u201cA medical doctor who holds himself out as a specialist and provides service in his specialty must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well qualified specialist under circumstances similar to those shown by the evidence. A failure to do so is professional negligence.\nThe only way in which you may decide whether a Defendant possessed and applied the knowledge and used the skill and care which the law required of him is from expert testimony presented in the trial.\nYou must not attempt to determine this question from any personal knowledge you have.\u201d\nThis instruction is based on the Illinois Pattern Jury Instruction for professional negligence. Illinois Pattern Jury Intructions, Civil, No. 105.01 (2006) (hereinafter IPI). The jury was not given any specific instructions on standard of care for any other type of medical personnel. However, the jury was given an instruction on vicarious liability, which provided that CMA was a corporation and could only act through its officers and employees. The vicarious liability instruction further provided that Dr. Kucich \u201cwas the agent\u201d of CMA; therefore, any act or omission of Dr. Kucich was an act or omission of CMA. The instruction did not refer to any other employees of CMA.\nThe jury ultimately returned a verdict in favor of plaintiff against CMA in the amount of $814,443.97 and in favor of Dr. Kucich. CMA then filed a timely posttrial motion raising three issues. First, CMA argued that plaintiff failed to establish a prima facie case of negligence because there was no evidence of any breach or that such a breach proximately caused Petre\u2019s injury. Second, CMA argued that it was entitled to a new trial because the trial court abused its discretion in permitting plaintiff to cross-examine Dr. Kucich using his deposition testimony. Third, CMA argued that the jury\u2019s verdict was against the manifest weight of the evidence.\nIn response, plaintiff asserted, inter alia, that it had established all of the elements of its prima facie case of negligence against CMA. Regarding the first element, duty or standard of care, plaintiff cited Dr. Kucich\u2019s testimony on cross-examination where he admitted that if someone in his office knew of the result of the December 2, 1996, culture and did nothing, then that would be a breach of the standard of care.\nIn reply, CMA asserted for the first time that plaintiff could not rely on the testimony of Dr. Kucich from his cross-examination during defendants\u2019 case-in-chief as evidence of the standard of care. Thereafter, plaintiff filed a motion to strike the portions of CMA\u2019s posttrial motion which raised these objections to Dr. Kucich\u2019s testimony with respect to the duty element of negligence for the first time arguing that thes\u00e9 arguments had been waived. Following a hearing, the trial court agreed and struck those sections from CMA\u2019s reply in support of its posttrial motion.\nUltimately, the court denied CMA\u2019s posttrial motion on April 3, 2006. CMA filed a notice of appeal on April 7, 2006. However, plaintiff subsequently filed a motion for Rule 137 (134 Ill. 2d R. 137) sanctions on May 3, 2006. The court denied plaintiffs motion for Rule 137 sanctions on June 23, 2006, and CMA filed a new notice of appeal on June 26, 2006.\nAll of the issues that CMA raises in this appeal turn on whether it was appropriate for plaintiff to rely on Dr. Kucich\u2019s testimony on cross-examination during defendants\u2019 case-in-chief to establish the elements of plaintiffs prima facie case of negligence against CMA. In this regard, CMA contends that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiff failed to establish a prima facie case of negligence against it. CMA specifically claims that Dr. Kucich\u2019s response to a hypothetical question on cross-examination was insufficient evidence of the standard of care for a nonphysician employee of CMA. CMA also claims that the jury\u2019s verdict was against the manifest weight of the evidence for similar reasons.\nHowever, we must initially address whether CMA waived this issue by failing to raise it prior to its reply in support of its posttrial motion, at which point the trial court struck the argument for failure to raise it sooner. It is well settled that an issue is waived on appeal unless a party makes an objection at the time of a purported error and specifically raises the issue in a written posttrial motion. Kapsouris v. Rivera, 319 Ill. App. 3d 844, 848, 747 N.E.2d 427, 431 (2001).\nHere, because CMA failed to object to the cross-examination of Dr. Kucich on these grounds until its reply brief in support of its posttrial motion, the issue is waived. Kapsouris, 319 Ill. App. 3d at 848, 747 N.E.2d at 431. Nevertheless, because waiver is a limitation on the parties, and not on the court, we may consider an issue not raised in the trial court if the issue is one of law and is fully briefed by the parties. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11, 672 N.E.2d 1178, 1183 (1996). Based on this principle, and because we find, for the reasons that follow, that the trial court erred in denying CMA\u2019s motion for judgment notwithstanding the verdict, we decline to apply waiver.\nA motion for judgment notwithstanding the verdict should be granted only when \u201c \u2018all of the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors [a] movant that no contrary verdict based on that evidence could ever stand.\u2019 \u201d York v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 222 Ill. 2d 147, 178, 854 N.E.2d 635, 652 (2006), quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). Put another way, \u201ca motion for judgment [notwithstanding the verdict] presents \u2018a question of law as to whether, when all of the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to the plaintiffs, there is a total failure or lack of evidence to prove any necessary element of the [plaintiff\u2019s] case.\u2019 \u201d York, 222 Ill. 2d at 178, 854 N.E.2d at 652, quoting Merlo v. Public Service Co., 381 Ill. 300, 311, 45 N.E.2d 665, 672 (1942). We review a trial court\u2019s decision to deny a motion for judgment notwithstanding the verdict de novo. York, 222 Ill. 2d at 178, 854 N.E.2d at 652. When the trial court has erroneously denied a motion for judgment notwithstanding the verdict, we will reverse the verdict without a remand. See Maple v. Gustafson, 151 Ill. 2d 445, 453, 603 N.E.2d 508, 512 (1992).\nOur supreme court has articulated a different standard for the granting of a new trial because the evidentiary situation that would require a new trial differs from a situation that would justify the entry of a judgment notwithstanding the verdict. Maple, 151 Ill. 2d at 453, 603 N.E.2d at 512. A motion for a new trial should be granted where the jury\u2019s verdict is against the manifest weight of the evidence. Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512. A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based on any of the evidence. Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512-13. Because the decision whether to grant a new trial is a matter of the trial court\u2019s discretion, we will not reverse its ruling on such a motion absent an abuse of that discretion. Maple, 151 Ill. 2d at 455, 603 N.E.2d at 513.\n\u20223 In a negligence medical malpractice case, a plaintiff must prove: (1) the proper standard of care against which the defendant\u2019s conduct is measured; (2) an unskilled or negligent failure to comply with the applicable standard; and (3) a resulting injury proximately caused by the defendant\u2019s want of skill or care. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112, 806 N.E.2d 645, 653 (2004). \u201cUnless the 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.\u201d Garley v. Columbia LaGrange Memorial Hospital, 351 Ill. App. 3d 398, 404-05, 813 N.E.2d 1030, 1036 (2004).\nHere, plaintiffs theory of negligence is based on what Dr. Kucich\u2019s staff, a nurse or otherwise, should have communicated to him. This type of negligence is not the type of negligence that would be so grossly apparent that it would \u201cspeak for itself,\u201d nor could a layperson be expected to know what a doctor would have expected his nurse to have communicated to him and when. Therefore, we find that expert testimony was required to establish the standard of care in this case. See, e.g., Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896, 904, 686 N.E.2d 722, 728 (1997) (using expert testimony to determine the standard of care pertinent to communications between a physician and a nurse).\nThe supreme court in Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986), articulated a three-step process for determining whether an expert is competent to testify regarding the standard of care in a particular case. Aim v. Loyola University Medical Center, 373 Ill. App. 3d 1, 4 (2007). Initially, plaintiffs proffered expert must satisfy two foundational requirements. Aim, 373 Ill. App. 3d at 4. First, the expert must he licensed in the defendant\u2019s given school of medicine. Sullivan, 209 Ill. 2d at 112-13, 806 N.E.2d at 654; Garley, 351 Ill. App. 3d at 406, 813 N.E.2d at 1037. Second, the proffered expert must also show that he is familiar with the methods, procedures and treatments ordinarily observed by others in the defendant\u2019s community or a similar community. Sullivan, 209 Ill. 2d at 112-113, 806 N.E.2d at 654; Garley, 351 Ill. App. 3d at 407, 813 N.E.2d at 1038. If the proffered expert fails to satisfy either of these two foundational requirements, the inquiry ends there, and \u201c \u2018the trial court must disallow the expert\u2019s testimony.\u2019 \u201d Sullivan, 209 Ill. 2d at 113, 806 N.E.2d at 654, quoting Jones v. O\u2019Young, 154 Ill. 2d 39, 44, 607 N.E.2d 224, 226 (1992); see also Aim, 373 Ill. App. 3d at 5. If the proffered expert satisfies the two foundational requirements, the analysis proceeds to the third step, in which the trial court exercises its discretion to determine if the proffered expert is competent to testify in the particular case before the court. Aim, 373 Ill. App. 3d at 5.\nRegarding the first of the two Purtill foundational requirements, both the supreme court and the legislature have recognized nursing as a unique school of medicine. Garley, 351 Ill. App. 3d at 407, 813 N.E.2d at 1038. In addition, a defendant is entitled to have his conduct tested by the standards of his own school of medicine; otherwise, a higher standard of care could be unfairly imposed on a defendant who does not belong to the same school of medicine as the proffered expert. Sullivan, 209 Ill. 2d at 113, 806 N.E.2d at 654 (discussing Dolan v. Galluzzo, 77 Ill. 2d 279, 396 N.E.2d 13 (1979)). Thus, the supreme court held in Sullivan that a physician cannot testify to the standard of care for nursing procedures. Sullivan, 209 Ill. 2d at 119, 806 N.E.2d at 657. However, the supreme court recognized a limited exception to the licensing requirement, which was first articulated in Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896, 686 N.E.2d 722 (1997). See Sullivan, 209 Ill. 2d at 118-119, 806 N.E.2d at 657 (distinguishing Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729).\nIn Wingo, this court held that where the allegations of negligence do not concern a nursing procedure but, rather, relate to what a nurse is required to communicate to a physician, the licensing requirement of the Purtill test does not apply. Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729. This is because the problem of imposing a higher standard of care on a defendant is not present where there is no different standard between the proffered expert\u2019s school of medicine and the school of medicine to which the defendant belongs. Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729.\nMoreover, as the Wingo court recognized, \u201c[w]hether the expert is qualified to testify is not dependent on whether he is a member of the same specialty or subspecialty as the defendant but, rather, whether the allegations of negligence concern matters within his knowledge and observation.\u201d Jones, 154 Ill. 2d at 43, 607 N.E.2d at 226. Thus, in Wingo, although the proffered experts, obstetricians, were not licensed nurses, it \u201cwas established that the allegations of negligence were well within the testifying doctors\u2019 knowledge and experience.\u201d Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729. The testifying obstetricians in Wingo established that they knew what an obstetric nurse should have communicated to an obstetrician under the circumstances present in the case by testifying that they taught obstetric nursing programs and worked with nurses under similar circumstances. Wingo, 292 Ill. App. 3d at 903-04, 686 N.E.2d at 727. Therefore, the court in Wingo concluded that the proffered experts in that case were qualified \u201cto testify about what [a physician] is entitled to rely upon in the area of communication from a nurse in the context of an obstetrical team rendering care to a patient in a hospital.\u201d Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729.\nThus, Wingo relieves a party of satisfying the licensing prong of the Purtill foundational test where the allegations of negligence concern communications between members of different schools of medicine acting as part of the same team. Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729. However, the party offering the expert testimony must still satisfy the second prong of the Purtill test by establishing that the allegations of negligence were within that expert\u2019s knowledge and expertise. See Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 729.\nMore recently, in Garley, this court considered the effect of Sullivan on Wingo, with the plurality of the court concluding that Wingo remains viable. Writing for the majority, Justice Quinn characterized Sullivan as creating a rigid, formalistic, bright-line licensing rule barring any doctor from testifying to the standard of care relevant to any other type of medical professional. Garley, 351 Ill. App. 3d at 409-10, 813 N.E.2d at 1040.\nTo the extent that Justice Quinn\u2019s opinion in Garley holds that Sullivan overruled Wingo, we disagree. See Garley, 351 Ill. App. 3d at 411-12, 813 N.E.2d at 1042. Justices Greiman and Hartman also disagreed and wrote separately in Garley. Justice Greiman\u2019s specially concurring opinion in Garley pointed out that the supreme court in Sullivan specifically distinguished 0Wingo. Sullivan, 209 Ill. 2d at 118-19, 806 N.E.2d at 657; Garley, 351 Ill. App. 3d at 413-14, 813 N.E.2d at 1043-44 (Greiman, J., specially concurring). Thus, the specially concurring opinion criticized Justice Quinn\u2019s characterization of the rule of law from Sullivan and concluded that Wingo remained appropriate precedent to follow in that case. Garley, 351 Ill. App. 3d at 413-14, 813 N.E.2d at 1043-44 (Greiman, J., specially concurring). However, because the doctor experts in Garley did not limit their testimony to matters of communication, the specially concurring opinion ultimately agreed with the majority that Sullivan barred their testimony. Garley, 351 Ill. App. 3d at 413-14, 813 N.E.2d at 1043-44 (Greiman, J., specially concurring). The specially concurring opinion also criticized the foundation testimony on the second prong of the Purtill test, that the doctor experts taught or prepared relevant manuals, as lacking in depth or detail. Garley, 351 Ill. App. 3d at 415, 813 N.E.2d at 1044 (Greiman, J., specially concurring). Dissenting, Justice Hartman agreed that Wingo was still viable, but found that the issue had been waived because no objection was made to the doctors\u2019 testimony at trial. Garley, 351 Ill. App. 3d at 415-16, 813 N.E.2d at 1045 (Hartman, J., dissenting).\nWe agree with the specially concurring and dissenting opinions in Garley. Sullivan very clearly distinguished Wingo because it found that the \u201cprecise factual scenario\u201d of communications between a nurse and a physician was not present in that case. Sullivan, 209 Ill. 2d at 118-19, 806 N.E.2d at 657. We therefore disagree with Justice Quinn\u2019s opinion in Garley on this point and find Wingo to remain appropriate precedent for this court to follow.\nApplying this law to the present case, the only testimony in the record relating to the standard of care for a nonphysician employee of CMA is Dr. Kucich\u2019s one-line admission on cross-examination during defendants\u2019 case-in-chief that \u201c[i]f my office knew [about the December 2, 1996, culture result] and didn\u2019t tell someone, then yeah, there\u2019s a breach of standard of care.\u201d This case falls squarely within the exception to the licensing requirement articulated in Wingo. Although Dr. Kucich is not a nurse, plaintiffs theory of negligence concerns what Dr. Kucich\u2019s nurse, Sue Wesensten, or some other staff member should have communicated to him regarding the December 2, 1996, culture of Petre. Therefore, under Wingo, plaintiff is relieved of satisfying the licensing requirement of the Purtill foundational test for qualification of an expert.\nHowever, we find that this testimony cannot be used as evidence of the standard of care for a nonphysician employee of CMA because it fails to satisfy the second of the Purtill foundational requirements. Dr. Kucich\u2019s testimony never established that he was familiar with the methods, procedures, and treatments ordinarily observed by other staff or employees of a medical practice like CMA. Although plaintiff maintains that because CMA was Dr. Kucich\u2019s medical corporation, he was \u201cobviously\u201d knowledgeable about its practices and procedures, Dr. Kucich never actually explained on the record what protocols or procedures were in place for how, when, and why to take cultures or how, when, and why to notify patients and other personnel about the results. Rather, Dr. Kucich alluded to, but never elaborated upon, the fact that there were \u201cstandard procedure[s]\u201d in place for taking and following up on cultures. Dr. Kucich also suggested that how, when, and who would perform these tasks would \u201cdepend upon the circumstances,\u201d but never elaborated on what circumstances would dictate what procedure. Without this foundational testimony, Dr. Kucich could not have rendered an opinion on the relevant standard of care.\nDr. Kucich\u2019s testimony here is a sharp contrast to the testimony presented in Wingo, in which the proffered experts established that they were not only familiar with what a nurse would have communicated to a doctor under similar conditions, but also that they taught nurses what to tell doctors under similar conditions. Wingo, 292 Ill. App. 3d at 903-04, 686 N.E.2d at 727. Because Dr. Kucich\u2019s testimony fails to satisfy this foundational requirement of the Purtill test, he was not qualified to render an opinion on the standard of care for what a nurse should have communicated to a doctor regarding a culture result. Therefore, Dr. Kucich\u2019s testimony that \u201c[i]f my office knew [about the December 2, 1996, culture result] and didn\u2019t tell someone, then yeah, there\u2019s a breach of standard of care,\u201d should not have been considered by the jury as evidence of the standard of care. Without any competent expert testimony to establish the standard of care for any nonphysician employee of CMA, we must conclude that the jury\u2019s verdict was against the manifest weight of the evidence and that the trial court abused its discretion in denying CMA a new trial.\nIn reaching this conclusion, we must also recognize that plaintiff never requested and the jury was never given an instruction on how to determine the standard of care for anyone other than a doctor. As noted above, the only instruction the jury was given, a modified form of IPI Civil (2006) No. 105.01, described how to determine the standard of care for a doctor. \u201cEach litigant has the right to have submitted to the jury instructions which inform the jurors of the issues presented, the principles of law to be applied, and the necessary facts to be proved in support of a verdict.\u201d Howat v. Donelson, 305 Ill. App. 3d 183, 186, 711 N.E.2d 440, 442 (1999). In addition, juries do not possess roving commissions to award damages as they please but, rather, must be given legal standards to guide them. Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 252, 856 N.E.2d 389, 408-09 (2006). Without an instruction on the standard of care for anyone other than a doctor, the jury\u2019s verdict cannot be justified by hypothesizing that the jury applied some other theory. See Tri-G, 222 Ill. 2d at 252, 856 N.E.2d at 409.\nOn appeal, plaintiff attempts to rely upon a line of cases dealing with institutional negligence to assert that Dr. Kucich\u2019s testimony regarding the standard of care was proper. However, plaintiff\u2019s case against CMA was never based on a theory of institutional negligence, which is a theory of negligence based on hospital policies or procedures, rather than on the acts of professionals working for the hospital. See Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 330-331, 211 N.E.2d 253, 256-57 (1965) (discussing a hospital\u2019s duty to a patient in an institutional negligence case); Bryant v. LaGrange Memorial Hospital, 345 Ill. App. 3d 565, 574-75, 803 N.E.2d 76, 84 (2003) (distinguishing medical malpractice claim based on negligence of professionals from an institutional negligence claim against a hospital). Rather, as plaintiffs complaint makes clear, plaintiffs theory against CMA was based on vicarious liability for some negligent act or omission of a CMA employee. Moreover, the jury was only given instructions pertaining to a vicarious liability theory; it was never given an instruction on institutional negligence. Because the jury ultimately found that Dr. Kucich did not act negligently, a vicarious liability negligence claim against CMA could only be based on the negligent act or omission of some other employee of CMA.\nHowever, as we have just discussed, the only evidence upon which the jury could have based such a verdict was not competent. Dr. Kucich, who was the only expert offered by plaintiff to testify regarding the standard of care for a nonphysician employee of CMA, was not qualified to render such an opinion. Because there was no competent testimony regarding the standard of care for such an employee, we find that the jury\u2019s verdict was against the manifest weight of the evidence. We therefore conclude the trial court abused its discretion in denying CMA\u2019s motion for a new trial.\nAccordingly, we reverse the judgment of the trial court and remand this cause for a new trial. Because we find that reversal is warranted based on this issue, we need not consider CMA\u2019s remaining contentions in this appeal.\nReversed and remanded.\nGREIMAN and KARNEZIS, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE THEIS" } ], "attorneys": [ "Francis R. Petrek, Jr., and Krista R. Frick, both of Bollinger, Ruberry & Garvey, of Chicago, for appellant.", "David A. Axelrod and Stacey L. Leinheiser, both of Chicago, for appellee." ], "corrections": "", "head_matter": "JANE PETRE, Special Adm\u2019r of the Estate of James Petre, Plaintiff-Appellee, v. CARDIOVASCULAR CONSULTANTS, S.C., d/b/a Cardiovascular Medical Associates, S.C., Defendant-Appellant (Vincent A. Kucich et al., Defendants).\nFirst District (3rd Division)\nNos. 1-06-1007, 1-06-1809 cons.\nOpinion filed May 30, 2007.\nRehearing denied June 26, 2007.\nFrancis R. Petrek, Jr., and Krista R. Frick, both of Bollinger, Ruberry & Garvey, of Chicago, for appellant.\nDavid A. Axelrod and Stacey L. Leinheiser, both of Chicago, for appellee." }, "file_name": "0929-01", "first_page_order": 947, "last_page_order": 962 }