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Myers v. Heritage Enterprises12/10/2004
UNPUBLISHED
Plaintiff, Michael B. Myers, independent executor of the estate of decedent, Mary Prillmayer, appeals the judgment entered in favor of defendant, Heritage Enterprises, Inc., upon the jury's verdict. We reverse and remand.
I. BACKGROUND
In August 2000, Penny Chapman and Carolyn Butler, certified nurse's aides/nursing assistants (CNAs), worked at Heritage Manor, a nursing home owned and operated by defendant. They attempted to transfer decedent, a 78-year-old resident, from her wheelchair to her bed using a device known as a Hoyer lift. During the process, decedent fell approximately 18 inches and hit the bar of the Hoyer lift, fracturing the tibia and fibula on both legs. Decedent died approximately two weeks later, apparently of unrelated causes because there were no allegations that the fall contributed to her death.
The nursing home reported the incident to the Illinois Department of Public Health (IDPH), which investigated the matter. Corey Crouch, a registered nurse who investigates for IDPH, concluded that decedent fell due to no fault of the facility or the staff.
In July 2001, plaintiff brought suit against defendant, alleging common-law negligence (count I) and violation of the Nursing Home Care Act (Act) (210 ILCS 45/1-101 through 3A-101 (West 2000)) (count II). The Act provides that owners and operators of facilities are liable to a resident for injuries caused by the intentional or negligent acts of their employees or agents. 210 ILCS 45/3-601 (West 2000).
On the motion of defendant, the trial court dismissed count II on the basis that " ause of ction under said * Act does not survive death of resident." We reversed the trial court in Myers v. Heritage Enterprises, Inc., 332 Ill. App. 3d 514, 515, 773 N.E.2d 767, 768 (2002), holding that the cause of action survived decedent's death.
Plaintiff ultimately withdrew count I, and the matter proceeded to trial on count II in January 2004. Count II alleged that defendant committed the following careless and negligent acts: (1) improperly positioning decedent in the Hoyer-lift sling, (2) failing to observe decedent was not properly seated in the Hoyer-lift sling, (3) failing to provide supervision of the use of the Hoyer lift, (4) failing to properly train its staff in the transfer of patients by use of the Hoyer lift, (5) using obsolete and inadequate equipment for transporting non-ambulatory patients, 6) failure of staff to properly position themselves, (7) careless and negligent operation of the Hoyer lift,(8) employing inexperienced staff, and (9) impairing the movement of the Hoyer lift while transferring the patient.
At the jury instruction conference prior to trial, plaintiff offered Illinois Pattern Jury Instructions, Civil, Nos. 10.01 and 10.04 (2000) (hereinafter IPI Civil (2000)), the ordinary negligence standard-of-care instructions. Defendant, however, argued that the professional negligence instruction, IPI Civil (2000) No. 105.01, applied to the actions of the CNAs. The trial court reserved ruling on the appropriate jury instruction because defense counsel did not have the exact instruction he intended to tender and the court believed it unfair to ask plaintiff's counsel to respond to an instruction he had been unable to review.
During the trial, plaintiff presented the testimony of, among others, David Jones, an operations manager for Heckman Health Care, and Mary Hendricks, a registered nurse. (Plaintiff had intended to call Donna Bankard, R.N., to testify as to her opinions of the alleged wrongdoings on the part of defendant. In January 2004, the trial court granted defendant's motion to bar Bankard because
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