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Myers v. Heritage Enterprises12/10/2004
es caused by the negligent acts of their employees. 210 ILCS 45/3-601 (West 2000).
The Act guarantees nursing home residents certain rights, including the right not to be subjected to abuse or neglect by nursing home personnel. 210 ILCS 45/2-107 (West 2000); Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 358, 489 N.E.2d 1374, 1377 (1986). The Act defines "neglect" as:
" failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury to a resident or in the deterioration of a resident's physical or mental condition." 210 ILCS 45/1-117 (West 2000).
See also Harris, 111 Ill. 2d at 366-67, 489 N.E.2d at 1381. "Adequate care" has been deemed synonymous with "ordinary care," "due care," or "reasonable care," the terms used to describe the standard of care for negligence. Harris, 111 Ill. 2d at 367, 489 N.E.2d at 1381. The Act defines "personal care" to include assistance with movement of the patient. 210 ILCS 45/1-120 (West 2000). Consequently, the plain language of the statute indicates that the appropriate standard of care for liability under the Act is one of ordinary negligence, which does not require expert testimony. See Eads v. Heritage Enterprises, Inc., 325 Ill. App. 3d 129, 137, 757 N.E.2d 107, 113 (2001) (noting that most of the Act "addresses non-medical long-term care, which does not require expert testimony"), aff'd, 204 Ill. 2d 92, 787 N.E.2d 771 (2003); see also, e.g., Parker, 299 Ill. App. 3d at 503, 701 N.E.2d at 195 (holding that the trial court abused its discretion in permitting the undisclosed opinion of a physician about the standard of rehabilitation care in an ordinary negligence claim brought pursuant to the Act).
The professional negligence instruction given informed the jury that it could only determine the standard of care by expert testimony:
"The only way in which you may decide whether a certified nurses's aide possessed and applied the knowledge and used the skill and care which the law required of him is from expert testimony. You must not attempt to determine this question from any personal knowledge you have."
See IPI Civil (2000) No. 105.01. Yet, the professional negligence instruction itself actually permits evidence from sources other than expert testimony:
"The only way in which you may decide whether (a)(any) defendant possessed and applied the knowledge and used the skill and care which the law required of him is from (expert testimony)(and)(or)(evidence of professional standards or conduct) presented in the trial." IPI Civil (2000) No. 105.01.
The language "evidence of professional standards or conduct" was not included in the instruction.
Further, the act of CNAs moving a nursing home resident does not constitute skilled medical care requiring the professional negligence instruction. A professional is " person who belongs to a learned profession or whose occupation requires a high level of training and proficiency." Black's Law Dictionary 1246 (8th ed. 2004). IDPH requires that nursing assistants meet certain training requirements, including 120 hours of instruction (completed within no less than 21 days and no more than 120 days, unless the program is conducted by an educational institution on a term, semester, or trimester basis). 77 Ill. Adm. Code §395.150 (Conway Green CD-ROM April 2001). Successful completion of the program means completion of at least 80 hours of theory and 40 hours of clinical work, completion of IDPH-approved manual skills, and passing the IDPH-established competency test. 77 Ill. Adm. Code §395.173 (Conway Green CD-ROM April 2001). The Act does not require nurs
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