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Myers v. Heritage Enterprises12/10/2004
she had never used a Hoyer lift.) Jones testified that certain new slings and chains were available for Hoyer lifts in August 2000. He also identified the Hoyer instruction manual, which the court admitted into evidence. Hendricks also demonstrated the proper use of the Hoyer lift.
Defendant called Pamela Sue Brown, holder of a Ph.D. in nursing, who testified as to the nursing standard of care in the use of the Hoyer lift. She reviewed numerous documents, including the pleadings, medical records, discovery documents, IDPH report, IDPH investigation materials, internal investigation materials from the nursing home, incident report, internal transfer policy for use of the Hoyer lift, the operator's manual for the Hoyer lift, discovery depositions, and textbooks on transfer techniques. In her opinion, to a reasonable degree of nursing certainty, the CNAs used an acceptable transfer procedure.
Chapman and Butler, the two CNAs who moved the decedent using the Hoyer lift, also testified about what occurred when decedent fell.
The trial court resumed the jury instruction conference on the third day of trial. Plaintiff again offered IPI Civil (2000) Nos. 10.01 and 10.04, and defendant offered IPI Civil (2000) No. 105.01 in lieu of plaintiff's instructions. Defense counsel stated he originally intended only to tender the first paragraph of IPI Civil (2000) No. 105.01 but believed that the second paragraph--informing the jury it could only decide whether the standard of care had been met from expert testimony-- was also appropriate. Plaintiff objected to the professional malpractice instruction because it did not apply to the negligence of the CNAs in the nursing home. The court rejected plaintiff's in-structions and instructed the jury on professional negligence.
Defendant moved for a directed verdict at the close of plaintiff's case and again at the close of defendant's case. The trial court denied both motions. On January 14, 2003, the jury returned a verdict in favor of defendant.
Plaintiff filed a motion to vacate the judgment and grant a new trial. Plaintiff claimed the trial court erred by permitting certain comments in defense counsel's opening and closing statements that plaintiff, the independent executor, would receive any damage award; allowing testimony that plaintiff was not related to decedent; and instructing the jury with IPI Civil (2000) No. 105.01 instead of IPI Civil (2000) Nos. 10.01 and 10.04. Although the order indicates the court was troubled by defense counsel's opening statement, the court denied the motion in its entirety.
Plaintiff appealed, arguing (1) the trial court erred in giving the jury a professional negligence instruction for the standard of care of CNAs requiring expert testimony and (2) the arguments and evidence presented that the award would be payable to plaintiff and that plaintiff was not related to decedent prejudiced plaintiff and denied him a fair trial.
II. ANALYSIS
Plaintiff filed this case as an ordinary negligence action under the Act. The elements of a cause of action for negligence are (1) the existence of a duty owed by defendant to plaintiff, (2) a breach of that duty, and (3) injury proximately caused by that breach. Parker v. Illinois Masonic Warren Barr Pavilion, 299 Ill. App. 3d 495, 499, 701 N.E. 2d 190, 193 (1998). Over plaintiff's objection, the trial court instructed the jury as follows:
"In providing professional services to Mary Prillmayer, a certified nurse's aide must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified certified nurse's aide under circumstances similar to those shown by t
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