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Suburban Hospital12/8/2000
11, 1996, accompanied by a waiver of arbitration under the Health Claims Arbitration Act. It is sufficient for present purposes to consider that the defendants, as named in an amended complaint filed on August 6, 1996, were Suburban, Anderson, Smith, Paul, and one Carol Stephens (Stephens) who is not a party to this appeal.
Suburban first raised the exclusivity defense in a motion for summary judgment filed sixteen months before trial. Anderson and Smith joined in the motion, contending that they were entitled to the defense because of their supervisory positions. In opposition Kirson argued the possible lack of a causal connection between the August 6 and August 13 falls, and she also argued the dual capacity doctrine. The circuit court, uncertain whether any facts that might be in dispute were material, denied the motion.
About two weeks before trial Suburban renewed its motion for summary judgment on exclusivity grounds. In essence it contended that the general facts that we have set forth above were the only material facts. Kirson again argued the absence of a causal connection between the fall of the thirteenth and that of the sixth, and she again argued dual capacity. In colloquy with counsel at that hearing the court, in part, observed:
"The injury that [Kirson] suffered on August 13, it is clear to me, is a direct result--I mean, she is there being treated for the injury that occurred on August 6th. So, therefore, Suburban Hospital, as the employer--not as the hospital, but as the employer--benefits from the exclusivity provision of the ."
Observing that "even though [it had] a difficult time finding a material fact that would allow the hospital to remain in this lawsuit," the circuit court denied the motion, saying, "I am going to let it go to the jury or at least we will start the jury trial with everybody in it."
At that same hearing Kirson moved in limine to prevent any mention of workers' compensation, opening her argument by saying, "If they are going to defend this on the exclusivity doctrine--." The court, however, interrupted and ruled, "That is a legal issue; that is not something that should be before the jury." When Suburban then argued that it should be entitled to demonstrate that it had paid $186,000 in compensation, the court ruled that this evidence was barred by the collateral source rule. The court stated, "I am not going to permit anything before the jury as to the amount of compensation that has been paid through the ."
Accordingly, the action went to trial before the jury as one involving a claim of negligently inflicted injury (August 13) superimposed on a pre-existing condition (the break in the femur of August 6).
At trial Kirson gave the following description of the fall of August 13. Shortly after breakfast Paul and a nurse, whom Kirson believed to be Smith, responded to Kirson's call button. Kirson wanted to use the bedside commode. As she sat up at the edge of her bed, Kirson told the two caregivers that she was "'a little light-headed.'" The two assisted Kirson to the commode and told Kirson to push the button when she was ready to return to bed and someone would return to assist her. After using the commode, Kirson again pushed the call button, and only Paul responded. Before Kirson stood up she told Paul, "'I still feel a little dizzy.'" Paul told Kirson to "'wait a minute.'" From a corner of the hospital room Paul obtained a walker that had not been adjusted for Kirson's use. Paul placed the walker directly in front of Kirson so that she could stand while using the walker for support. When Kirson stood, Paul took the container out of the commode and started toward the bathroom to emp
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