William V. Johnson
Shelvin L. Hall
In a case that resulted in a defense verdict, a state appeals panel has ordered a new trial for a woman who sued a hospital after she contracted HIV and hepatitis C via a kidney transplant.
The plaintiff, listed as Jane Doe, filed a complaint in Cook County Circuit Court against the University of Chicago Medical Center after the 2007 transplant.
The case, which attracted national interest from hospitals and organ-donation groups, was the first instance of HIV transferring through a donated kidney since 1986. The donor did not test positive for the virus at the time of the transplant.
In her complaint, the plaintiff contended a doctor and nurse at the hospital failed to obtain informed consent because they did not inform her that the donor — a homosexual male — was considered “high risk” under Centers for Disease Control and Prevention guidelines.
The plaintiff had declined two earlier offers of kidneys from high-risk donors. The hospital contended it told her about the donor’s risk factors before the operation.
The 1st District Appellate Court found that the jury in a 2011 trial received contradicting instructions when it reached a verdict in favor of the hospital.
“The error in this case caused serious prejudice to the plaintiff and, but for the error, the jury might have reached a different verdict,” Justice Shelvin L. Hall wrote in the 25-page opinion published Friday.
Before the trial started, the plaintiff agreed to dismiss Dr. Richard Thistlethwaite Jr. as a defendant in the case.
In the trial before Circuit Judge Thomas L. Hogan, the jury heard a modified version of Illinois Pattern Jury Instructions, Civil, No. 50.01. The rule is designed for when both a principal — the hospital — and an agent — the doctor — are sued when there is no question that the doctor qualifies as a hospital employee.
Under the modified instruction, given over objections from the plaintiff, the jury was told it could only find the hospital liable if it found Thistlethwaite liable for the plaintiff’s injuries.
The jury also heard IPI instruction No. 50.02, which the plaintiff supported, designed for when a principal is sued but not the agent. That instruction identified Thistlethwaite and nurse Katrina Harmon as agents of the hospital and provided that their actions were the actions of the hospital itself.
After a three-week trial in the Daley Center, the jury found the hospital not liable.
It also answered two special interrogatories from the hospital, finding that Thistlethwaite was not negligent in the way he provided informed consent nor was any negligence a proximate cause of the plaintiff’s injuries.
In a motion for a new trial, the plaintiff argued that Hogan erred in providing both sets of jury instructions.
Hogan denied the motion, ruling that the other instructions allowed the jury to consider the hospital’s liability independent of finding liability against Thistlethwaite.
The appellate court agreed with the plaintiff’s contention that she was denied a fair trial.
“While agency was not contested in this case, nurse Harmon was never a defendant in this lawsuit, and Dr. Thistlethwaite was no longer a defendant at the time of trial,” Hall wrote. “Therefore, the plaintiff’s instruction … was the proper instruction for the jury to receive in this case.”
Even in its modified form, Hall wrote, the hospital’s instruction was not a correct statement of the law applying to the case.
“A party is entitled to have the jury instructed on his or her theory of the case, and the failure to do so may require a new trial,” Hall wrote.
The panel agreed that the hospital’s instruction did not allow the jury to hold the hospital liable based on the nurse’s conduct.
“The UCMC’s instruction … misled the jury into believing that it could consider only the acts of Dr. Thistlethwaite in determining if the UCMC could be held responsible for the plaintiff’s injury,” Hall wrote.
The inclusion of the correct instruction did not cure the error, she wrote, because the jury was required to choose between which instruction to follow in reaching its verdict.
Justice Jesse G. Reyes concurred in the opinion that remands the case for a new trial.
In a four-page specially concurring opinion, Justice Bertina E. Lampkin provided additional justification for the panel’s reversal.
The two IPI jury instructions in dispute in the case are self-contained for different circumstances and are contradictory when used together, Lampkin wrote.
“Plaintiff voluntarily dismissed Dr. Thistlethwaite before the jury was picked because she sought to eliminate from the jury’s realm of concern and speculation any consideration of the consequences of a verdict against him,” Lampkin wrote. “Accordingly, the jury never knew that Dr. Thistlethwaite was ever a defendant, and there was no verdict form whereby the jury could have found him liable.”
Lampkin noted there was sufficient evidence in the case to support the jury’s defense verdict.
“Properly guided by plaintiff’s instruction … the jury could have consulted the remaining instructions to determine whether the act of an agent, being an act of UCMC, gave rise to a verdict for either party,” she wrote. “That process, however, was derailed by UCMC’s instruction … which mandated a verdict for UCMC unless the jury could perform the impossible task of finding Dr. Thistlethwaite liable.”
The plaintiff was represented by Thomas A. Demetrio, a partner at Corboy & Demetrio P.C., and Michael T. Reagan, owner of the Law Offices of Michael T. Reagan in Ottawa.
Demetrio declined to comment on the decision, citing the forthcoming new trial.
The hospital was represented by William V. Johnson, Matthew L. Johnson, Garrett L. Boehm Jr. and Erin E. Blake of Johnson & Bell Ltd.
Johnson said he strongly disagrees with the decision.
“This is an agency case, which means the hospital can only be liable through the conduct of its agent,” Johnson wrote. “The entire case was tried to determine whether the surgeon gave an appropriate informed consent.”
He said the dismissal of Thistlethwaite from the case was arranged with Demetrio as part of an agreement to try the case as though Thistlethwaite was still a defendant.
Demetrio “didn’t want the jury looking at (Thistlethwaite), feeling sorry for him,” Johnson said. “The whole case was tried based on his conduct.”
Johnson said he plans to file a petition for rehearing.
The case is Jane Doe v. The University of Chicago Medical Center, 2014 IL App (1st) 121593.