 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Myers v. Heritage Enterprises12/10/2004
ing assistants to obtain a high school diploma. 210 ILCS 45/3-206 (West 2000) (requiring that nursing assistants complete at least eight years of grade school or provide proof of equivalent knowledge). A nursing assistant's duties, as testified to by Chapman and Butler, include bathing, feeding, weighing, dressing, transferring, and communicating with patients, as well as assisting with toileting functions. Given the minimal training requirements and the fact that nursing assistants provide primarily personal care, the nursing assistant position is not a professional position requiring the profes-sional negligence instruction.
Because the proper standard of care was one of ordinary negligence, the trial court should have instructed the jury with IPI Civil (2000) Nos. 10.01 and 10.04, which would have informed the jury that it had to decide how a reasonably careful person would have acted under the circumstances. Under this standard, the parties could have presented evidence to assist the jury in its determination, including expert testimony, IDPH regulations, manufacturer's instructions, or industry standards, although this would not be required.
Defendant argues that even if the trial court gave the wrong instructions, plaintiff suffered no prejudice because he, too, presented expert testimony at trial. Yet, the instructions given to the jury specifically informed it that the only way to determine whether the CNAs used the skill and care required of them was from expert testimony. The jury was told it could not rely on its own knowledge or other evidence. Moreover, the evidence conflicted as to whether the manufacturer's instructions were followed. An assessment of the credibility of the CNAs' testimony was a determination to be made by the jury. If the jury had been instructed that it could determine how a reasonably careful person would have acted under the circumstances, it may have determined that the CNAs were, in fact, negligent, despite Dr. Brown testifying that the CNAs met the standard of care.
Consequently, the trial court abused its discretion by instructing the jury on professional negligence rather than ordinary negligence. The instructions given misled the jury and resulted in prejudice to plaintiff, especially in light of the fact that the court ruled on the proper standard of review on the last day of trial. Therefore, a remand for a new trial is required.
Plaintiff also claims that certain prejudicial argument and evidence presented by defendant--that any award would be payable to plaintiff and that plaintiff was not related to decedent--deprived him of a fair trial.
Prior to trial, plaintiff filed a motion in limine seeking to "exclude during the trial any reference to whom a jury award would be received." The trial court denied the motion, finding that if plaintiff was going to testify, defense counsel had the right to inquire as to his interest in the estate. Plaintiff had listed himself as a potential witness at trial.
In his opening statement, defense counsel stated:
"Lastly, ladies and gentlemen, you're going to hear testimony from the laintiff, Mr. Myers. You're going to hear testimony of his relationship to Ms. Prillmayer prior to August 16[,] 2000. That testimony will be, and we expect the evidence to be as it's presented to you, Mr. Myers was not related by blood to Ms. Prillmayer. Mr. Myers was not relate by marriage to Ms. Prillmayer. Mr. Myers, we expect him to testify, he was a family friend or friend or social acquaintance of Ms. Prillmayer. We're also going to show you Mary Prillmayer's last will and testament, which names Mr. Myers as the sole beneficiary of that estate.
*
Page 1 2 3 4 5 6 7 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|