No. 1-12-1593 Opinion filed September 12, 2014 Sixth Division ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

JANE DOE, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) THE UNIVERSITY OF CHICAGO MEDICAL ) CENTER, a Not-For-Profit corporation, ) No. 08 L 12783 Formerly Known as The University of Chicago ) Hospitals, ) ) Defendant-Appellee ) Honorable ) Thomas L. Hogan, (James Richard Thistlethwaite, Jr., M.D., ) Judge Presiding. ) Defendant). ) ______________________________________________________________________________

JUSTICE HALL delivered the judgment of the court, with opinion.

Justice Reyes concurred in the judgment and opinion.

Justice Lampkin specially concurred in the judgment, with opinion.

OPINION

¶1 The plaintiff, Jane Doe, filed a medical malpractice lawsuit against the defendants, the

University of Chicago Medical Center (the UCMC) and James Richard Thistlethwaite, Jr.,

M.D. Prior to trial, the plaintiff voluntarily dismissed Dr. Thistlethwaite from the lawsuit. No. 1-12-1593

Following a jury trial, a judgment was entered in favor of the UCMC and against the

plaintiff. The trial court denied the plaintiff's motion for a new trial. The plaintiff appeals.

¶2 On appeal, the plaintiff raises the following issues: (1) whether the jury instructions

denied her a fair trial; (2) whether the jury verdict and the answers to the special

interrogatories were against the manifest weight of the evidence; and (3) whether the

cumulative effect of the instances of improper argument by the UCMC denied her a fair trial.

¶3 For the reasons set forth below, we reverse the judgment of the trial court and remand

this case for a new trial.

¶4 BACKGROUND

¶5 In 1984, Congress established the Organ Procurement and Transplantation Network

(OPTN), which provided for the creation of a network to be operated by a private not-for-

profit organization under a federal contract. In 1986, the United Network for Organ Sharing

(UNOS) was selected to be the contractor. The UNOS supervises organ procurement

organizations (OPOs). The Gift of Hope in this case is an OPO.

¶6 I. HIV Transmission in Organ/Tissue Transplantation Procedures

¶7 In 1994, the Center for Disease Control (CDC) published "Guidelines for Preventing

Transmission of Human Immunodeficiency Virus [HIV] Through Transplantation of Human

Tissue and Organs." The guidelines provided in pertinent part as follows:

"Regardless of their HIV antibody test results, persons who meet any of the

criteria listed below should be excluded from donation of organs or tissues unless the

risk to the recipient of not performing the transplant is deemed to be greater than the

risk of HIV transmission and disease (e.g., emergent, life-threatening illness requiring

transplantation when no other organs/tissues are available and no other lifesaving

2 No. 1-12-1593

therapies exist). In such a case, informed consent regarding the possibility of HIV

transmission should be obtained from the recipient." Center for Disease Control,

Martha F. Rogers, M.D., et al., Guidelines for Preventing Transmission of Human

Immunodeficiency Virus Through Transplantation of Human Tissue and Organs

(May 20, 1994), available at http: //cdc.gov. (hereinafter, CDC guidelines).

¶8 In the 1994 CDC guidelines, the behavior/history criteria included "[m]en who have had

sex with another man in the preceding 5 years."

By1996, the CDC guidelines, which

reflected the CDC's safety goals, were being interpreted in such a way so as to further

compromise the already limited supply of human organs. Seeking to clarify the guidelines,

the CDC stated:

"[W]hen a potential organ donor tests HIV-antibody negative but has behavioral risk

factors for HIV infection, the decision to accept an organ for transplantation should

be made after consideration of the relevant risk factors for the individual recipient and

with recognition of the very low incidence of HIV transmission in such situations.

CDC recognizes the need for transplant centers, not organ procurement organizations,

to deal with matters of patient consent in this setting.

In accepting an organ for transplantation, transplant teams should assess

immediately the medical and social information available from the organ procurement

organization regarding the potential donor. In the context of the current organ

shortage, transplant teams are encouraged to accept and transplant organs from

medically appropriate donors who test HIV-antibody negative but have behavioral

risk criteria for HIV infection after the transplant teams have discussed the risks and

benefits with potential recipients and/or their families." Clarification of Human

3 No. 1-12-1593

Immunodeficiency Virus Screening Practices for Organ Donors,

,

56,549 (Nov.1, 1996).

¶9 II. Pretrial Proceedings

¶ 10 On November 17, 2008, the plaintiff filed a complaint against the UCMC and Dr.

Thistlethwaite alleging medical negligence relating to a kidney transplant she underwent in

2007. In count I of her amended complaint, the plaintiff alleged institutional negligence on

the part of the UCMC in that she was not informed of the high-risk behavior of the donor of

the kidney she received. In count II, the plaintiff alleged that Dr. Thistlethwaite was an

employee or agent of the UCMC and that he failed to inform the plaintiff of the risks of

accepting a kidney from a high-risk donor. Prior to trial, the plaintiff voluntarily dismissed

count I of the amended complaint, and she dismissed Dr. Thistlethwaite as a defendant from

count II of the amended complaint. The case was tried on count II and only against the

UCMC.

¶ 11 III. Jury Trial

¶ 12 The disputed issue at trial was whether the UCMC complied with the standard of care

governing informed consent in organ transplant cases. The testimony pertinent to that issue

is set forth below.

¶ 13 A. Testimony

¶ 14 1. The Plaintiff

¶ 15 On January 7, 2007, the plaintiff received a telephone call from nurse Katrina Harmon,

the UCMC's kidney transplant coordinator advising her of a potential kidney match. Shortly

before 10 p.m., the plaintiff received another call from nurse Harmon, informing her that the

kidney matched and instructing her to proceed to the UCMC to be admitted. The transplant

4 No. 1-12-1593

was performed by Dr. Thistlethwaite on January 9, 2007, and the plaintiff was discharged

from the UCMC on January 14, 2007.

¶ 16 On November 1, 2007, the plaintiff received a call from Dr. Robert Harland requesting

that she come to the UCMC to be tested for HIV and hepatitis C. At the hospital, she met

with Dr. Harland and Dr. Thistlethwaite. Upon learning that the kidney donor was a 30-year-

old male homosexual, the plaintiff stated that, had she known the donor was homosexual, she

would have refused the kidney. Dr. Thistlethwaite stated that he did not know the donor was

homosexual. When the plaintiff asked why she had not been informed, Dr. Thistlethwaite

responded that he was unaware that she had not received that information.

¶ 17 The plaintiff had declined two previous kidney transplants where the donors' medical

histories indicated unsafe sexual practices, drug use or other lifestyle choices that may have

impacted their health. At the time of the 2007 transplant, she was doing well on dialysis.

The plaintiff was unaware that she was 38 on the transplant list at the time of the 2007

transplant. Subsequently, the plaintiff was diagnosed with HIV and hepatitis C.

¶ 18 The plaintiff was treated at the UCMC in December 2007, and January 2008. By April

2008, the plaintiff's body was rejecting the donated kidney, and she went back on dialysis. In

July 2008, the kidney was removed. From that time on, the plaintiff had less energy and

suffered from a lack of interest in life. While the plaintiff hoped to receive another kidney,

she was concerned that she would receive one that compromised the medication she took for

HIV and hepatitis C.

¶ 19 The plaintiff would have refused a kidney from a homosexual donor even if she had

known that in 20 years, HIV had never been transmitted via a kidney transplant where the

donor tested negative for HIV. She would not have accepted a kidney from such a donor

5 No. 1-12-1593

even knowing that her risk of dying in the next year while on dialysis was 1 in 5 as opposed

to 1 in 11,000, if she accepted the kidney. However, the plaintiff then acknowledged that if

she knew her chances of dying while on dialysis were much greater than the risk of

contracting HIV from the donor kidney, she would have accepted the kidney.

¶ 20 When the plaintiff entered the UCMC's transplant program in 2000, she received an

orientation from both a nurse coordinator and a surgeon and understood what high-risk donor

meant. In 2003 and 2005, when a kidney was available, the plaintiff received the information

about the lifestyles of the donors from Kathy Davis, a nurse coordinator at the UCMC.

However, in 2007, she did not receive any donor-lifestyle information from nurse Harmon.

The plaintiff did not ask nurse Harmon about the donor's lifestyle because on other occasions

the nurse coordinator had provided the information to her.

¶ 21 2. James Richard Thistlethwaite, Jr., M.D.

¶ 22 Dr. Thistlethwaite was employed by the UCMC as a transplant surgeon. He served on

several medical boards and had been a councilor with the UNOS. The doctor had published

over 200 articles. He co-authored a 2006 article entitled, "Shared decision making in

deceased-donor transplantation." Dr. Thistlethwaite agreed that the goal of informed consent

included disclosure of relevant information to and comprehension by the patient. He further

agreed that the protocol at the UCMC in 2007 was that potential organ recipients should be

informed of the high-risk status of the donor and that the donor in this case was high risk.

¶ 23 Dr. Thistlethwaite explained that "informed consent" was a process that continues over

the entire time the patient interacts with the transplant team. While the process of informed

consent was under the direction of the surgeon performing the procedure, it was the

customary practice at the UCMC for the nurse coordinator to inform the potential recipient

6 No. 1-12-1593

that the donor was high risk. The doctor acknowledged that there was no documentation in

the medical records that the plaintiff was advised of the donor's high-risk status. However,

the doctor was certain that at the time he performed the plaintiff's transplant surgery, he was

aware that the donor was CDC high risk.

¶ 24 In 1996, Dr. Thistlethwaite was active with the Gift of Hope. After the CDC issued its

1994 guidelines and 1996 amended guidelines, the Gift of Hope adopted the CDC guidelines

for providing information as to the high-risk status of donors to the hospitals to which it

supplied organs. In 2004, the OPTN adopted a rule requiring OPO's to supply that

information to hospitals. However, the regulation did not require that the information be

given to the potential recipient of a donor organ. Dr. Thistlethwaite explained that "if the

UNOS had wanted to, they could have easily said you have to inform patients, and then it

would have been a regulation. You have to inform patients if it's a high-risk donor. They

chose not to do that." Even so, Dr. Thistlethwaite maintained that it was the practice at the

UCMC that the patient be informed of the high-risk status of the donor and as the surgeon it

was his responsibility to make sure that the patient received the information. In 2007, the

doctor was not required to know whether a patient had previously turned down a kidney; in

retrospect, he wished he had known it in this case.

¶ 25 While Dr. Thistlethwaite stated that all the doctors on the transplant team followed the

same procedure, he did not dispute that Dr. Harland, who had been part of the UCMC's

transplant team, believed that, as the surgeon, he should have the informed-consent

conversation with the patient. Dr. Thistlethwaite was unaware that Dr. Harland recorded in

the progress notes that he had the high-risk donor conversation with his patients. There was

no requirement that the conversation be noted in the medical record, and Dr. Thistlethwaite

7 No. 1-12-1593

did not believe that having the conversation at the last minute with the patient would be

helpful in obtaining an informed consent.

¶ 26 According to Dr. Thistlethwaite, there was no universal standard of care applicable to the

informed consent procedure. The doctor believed that Dr. Harland's practice and his own

practice with regard to obtaining informed consents in transplant surgery were both within

the accepted standard of care.

¶ 27 3. Kathy Davis, R.N.

¶ 28 At the time of the trial, nurse Davis was employed by the UCMC as the living donor

nurse coordinator. She met the plaintiff in 2000, when nurse Davis was part of the diseased

kidney donor transplant department.

¶ 29 In 2007, the UCMC had procedures governing informed consent where the organ donor

was high risk. As the nurse coordinator, when there was an available kidney, nurse Davis

would inform the patient that the donor was high risk. Ultimately, it would be the

responsibility of the doctors to go over the risks and benefits of a high-risk donor; then the

nurse would review the information with the patient. In January 2007, the doctors did not

delegate the responsibility of obtaining the informed consent from the patient. The nurse

coordinator would provide the factual information to the patient and then inform the doctor,

who would explain the risks involved to the patient. A summary sheet was used to record

whether a patient had accepted or declined a kidney. The summary sheet recording a refusal

was not necessarily kept. While the sheets were accessible to the transplant team, there was

no requirement to keep them and, if kept, there was no definite timeframe for their disposal.

The summary sheet was neither an official record nor was it part of the patient's medical

record.

8 No. 1-12-1593

¶ 30 According to nurse Davis, once she was advised of an available kidney, she would

contact the transplant doctor. If the doctor determined it was a suitable candidate, it was her

job to contact the patient and provide the information as to the age and lifestyle of the donor.

All transplant doctors delegated that job to the nurse coordinators.

¶ 31 4. Katrina Harmon, R.N.

¶ 32 Nurse Harmon began working at the UCMC in 2003. From 1999 to 2003, she had

worked for Gift of Hope, as an organ recovery coordinator. At Gift of Hope, nurse Harmon

was responsible for responding to potential organ donor cases from referring hospitals. Her

duties included reviewing charts and obtaining consents for organ donations from families.

Once the consents were obtained, she coordinated the recovery of livers, hearts and lungs for

transplantation. From 2003 to the present, she had been a pre-kidney and pancreas transplant

coordinator at the UCMC.

¶ 33 Nurse Harmon's first meeting with the plaintiff took place on January 10, 2007, the day

after the transplant surgery. She could not remember having a face-to-face, one-on-one

discussion with the plaintiff prior to that date.

¶ 34 On January 8, 2007, a kidney placer from Gift of Hope informed nurse Harmon that a

kidney was available for transplant. Although she could not recall the specifics of the

conversation, in accordance with her usual procedure, she would have received the donor's

chart and a list of potential recipients. Before speaking to the doctor on call, nurse Harmon

would review the donor's chart, which included the donor's social history and clinical

information. She would also review the potential recipient's summary sheet containing the

potential recipient's medical and insurance information. The summary sheet did not contain

a history of prior refusal of organs. That information was not available to the nurses or

9 No. 1-12-1593

doctors at the UCMC at the time of a kidney offer; the patient would have to be asked for

that information. Nurse Harmon did not ask the plaintiff if she had refused a prior kidney

offer, and the plaintiff did not volunteer that information.

¶ 35 On January 8, 2007, after reviewing the donor's chart, nurse Harmon noted that the donor

was a homosexual and that he had recently lost eight pounds. Nurse Harmon then contacted

Dr. Thistlethwaite. Although she did not recall the specific conversation, nurse Harmon

would have provided him with the medical and social history of the donor. Dr.

Thistlethwaite was interested in the kidney, and nurse Harmon informed the Gift of Hope to

begin compatibility tests. According to nurse Harmon, the transplant procedure should be

done as soon as possible.

¶ 36 On January 8, 2007, nurse Harmon called the plaintiff at 5:14 p.m. She remembered

speaking with the plaintiff but did not have a specific recollection of the conversation.

Because she provided the same type of information to each patient, nurse Harmon would

have provided the plaintiff with the following information: the specifics of the donor's death;

the results of any infectious disease testing, in this case, the donor tested negative for HIV

and hepatitis B and C; the donor was a homosexual and therefore classified as a high-risk

donor; and she had reviewed the case with Dr. Thistlethwaite. Upon receiving the

information, the potential recipient would state whether he or she were interested or not

interested in proceeding with the transplant. Nurse Harmon did remember that the plaintiff

wished to discuss the offer with her family and call the nurse back. The fact that the plaintiff

wanted time to think about the offer and discuss it with her family was unusual. While her

cell phone showed three more calls from the plaintiff, nurse Harmon did not recall what was

10 No. 1-12-1593

said during those calls. The UCMC did not require documentation of telephone calls. The

plaintiff arrived at the UCMC at 11 p.m.

¶ 37 According to nurse Harmon, in 2007, securing the informed consent from the patient was

the responsibility of the transplant surgeon, whether or not the donor was high risk. It was

nurse Harmon's responsibility to provide the CDC high-risk information to the potential

recipient. The plaintiff's summary sheet indicated that she would accept an expanded criteria

donor, i.e., a less than standard kidney. There was nothing on the plaintiff's summary sheet

as to whether she would or would not accept a high-risk donor or that she had previously

refused a high-risk donor. It was nurse Harmon's custom and practice to inform a potential

recipient that the donor was a homosexual. It was also Dr. Thistlethwaite's practice to have

her inform the patient that the donor was a homosexual.

¶ 38 5. Raymond Pollak, M.D.

¶ 39 Dr. Pollak testified as an expert witness for the plaintiff on informed consent in transplant

cases. His medical training and experience were concentrated in the area of transplants. The

doctor served as chief of the transplant service at both the University of Illinois at Chicago

and the University of Illinois at Peoria. He had performed over 800 kidney transplants; the

last one was in 2001. Dr. Pollak was affiliated with the Gift of Hope, serving on its

governing board as well as its medical advisory committee, which set the medical policy for

the organ bank. He also served on the medical and professional standards board of directors

of the UNOS.

¶ 40 Contrary to nurse Harmon's testimony, Dr. Pollak maintained that the Gift of Hope would

not have proceeded with the testing unless the plaintiff had accepted the kidney. Without a

definite acceptance, the Gift of Hope was free to offer the kidney elsewhere.

11 No. 1-12-1593

¶ 41 Dr. Pollak was given a hypothetical in which he was to assume the following facts: both

Dr. Thistlethwaite and nurse Harmon were aware that the donor was high risk, but neither of

them supplied that information to the plaintiff; nurse Harmon did not supply the high-risk

status of the donor to the plaintiff, and Dr. Thistlethwaite was unaware that the plaintiff

lacked this information prior to the transplant surgery; and Dr. Thistlethwaite was unaware

that the plaintiff had twice rejected kidneys from high-risk donors. In response to the

hypothetical , Dr. Pollak opined as follows:

"[A] reasonable physician communicating effectively with his patient should have

provided that informed consent based on his own standard of care, the standard of

practice that was available through the guidelines as issued by the CDC and the

guidelines within The University of Chicago's health system, which required an

informed consent process from the treating surgeon."

¶ 42 According to Dr. Pollak, under the local and national standard adopted by the transplant

surgeons in Illinois and nationwide, an offer of a high-risk CDC donor kidney required

specific verbal or written informed consent. Dr. Pollak maintained that the CDC guidelines

governed the standard of care in transplant cases. The doctor acknowledged that there was

no federal law placing the CDC in charge of transplants. The OPTN required OPOs, such as

the Gift of Hope, to communicate the donor history to the institutions receiving organs.

While Dr. Pollak believed it was implicit in the requirement that the doctor provide that

information to the patient, he agreed the decision to do so was made by the doctor, in his or

her professional judgment; the OPTN did not require it.

12 No. 1-12-1593

¶ 43 Dr. Pollak had no criticism of Dr. Thistlethwaite's practice of having the nurse inform the

patient of the donor's high-risk status. In December 2007, after the plaintiff's transplant

surgery, the OPTN required that the patient be informed of the high-risk status of the donor.

¶ 44 6. Robert Harland, M.D.

¶ 45 Dr. Harland's deposition testimony was read into the record. From 2001 to 2009, Dr.

Harland was the director of the kidney and pancreas transplant program at the UCMC. He

did not recall whether, by 2001, the UCMC had developed any policies or procedures in

response to the CDC guidelines. As chief of the transplant section, Dr. Michael Millis would

have been responsible for developing those policies and procedures. Dr. Harland's role

would have been to facilitate the development or the implementation of procedures for

kidney and pancreas transplants.

¶ 46 In 2007, if the donor was high risk because of his social history, Dr. Harland believed

that the patient would be given that information, but whether the patient received the

information might not have been documented in writing. If it was documented, it would be

done by the surgeon or the resident (doctor), either on the informed-consent form, in a

progress note or in a dictated note. Only the patient and the surgeon would be informed of

the high-risk status of the donor. In 2007, a transplant-specific consent form had not yet been

finalized. Dr. Harland would use the general consent form to record that the patient had been

informed that the donor was high risk; normally, he documented it on the progress note.

¶ 47 It was Dr. Harland's practice to inform the patient prior to surgery of the possibility of the

transmission of a viral disease, even if the donor tested negative. The doctor did not recall

whether in 2007 the UCMC had any procedures in place requiring that the high-risk-donor

information be given to the patient. It would have been in keeping with the UCMC's practice

13 No. 1-12-1593

that nurse Harmon would convey the information to the plaintiff that the donor was

homosexual and high risk.

¶ 48 Dr. Harland agreed that prior to obtaining an informed consent, the surgeon must first

decide whether the risk of transmission of a viral disease was outweighed by the benefits of

the transplant. Due to other medical conditions, the plaintiff had been on and off the organ

list, had end-stage renal disease and was using a catheter for dialysis access. The quality of

the donated kidney was good and, provided there was informed consent, Dr. Harland

believed that the transplant was the best possible outcome for the plaintiff.

¶ 49 7. Dorry Segev, M.D., PhD

¶ 50 Dr. Segev was an expert witness for the UCMC on informed consent in transplant cases.

As part of his surgery residency at Johns Hopkins (Hopkins), he spent three years at Harvard

College doing research in the area of molecular biology. After completing his residency at

Hopkins, he did a clinical fellowship in transplant surgery there. Dr. Segev then obtained a

master's degree in biostatistics and a PhD in clinical investigation. The doctor was an

associate professor in the department of surgery at Hopkins. He was appointed to the

epidemiology department in the school of public health at Hopkins where research was

conducted to develop and implement national polices and standards and to determine if they

worked. Dr. Segev had published over 100 articles, 15 to 20 of them dealing with high-risk

organ donors.

¶ 51 Prior to the plaintiff's 2007 kidney transplant, the only occasion of HIV transmission

resulting from a transplant occurred in 1986. At that time, doctors did not know what HIV

was. By 2007, the standard of care required the use of an enzyme-linked immunosorbent

assay (the ELISA) test to determine the existence of antibodies indicating an infection.

14 No. 1-12-1593

Because the body required time to develop the antibodies, there was a window of one to three

months between the time of exposure to the virus and testing positive for it. While there was

a risk to the patient from the infection, the patient had a much higher risk from dying from

organ failure. Since 1986, 425,000 transplants had been done. Prior to the plaintiff's case,

there was zero risk of infection. In addition, until the late 1990s, hepatitis C was unknown to

doctors. In describing the risk to the plaintiff by staying on dialysis versus being infected

with HIV from a transplanted kidney from a donor who tested negative, Dr. Segev stated:

"Her risk from death from staying on dialysis was probably, based on our

estimates then, a million times higher than her risk of death - - her risk of getting HIV

or her risk of death from getting HIV if she had gotten it from the transplant.

Probably a million times higher."

¶ 52 Dr. Segev opined that Dr. Thistlethwaite's conduct in obtaining an informed consent from

the plaintiff was within the standard of care. The transplant team at the UCMC functioned

similarly to the one at Hopkins, where Dr. Segev performed transplants every week. At

Hopkins, nurse coordinators were part of the transplant team. Because the work was done as

a team, the surgeon relied on other team members to perform necessary functions. Dr. Segev

explained that Dr. Thistlethwaite's practice of delegating to a nurse coordinator, such as nurse

Harmon, the responsibility to provide the patient with all the details about the donor was

within the standard of care. Dr. Segev stated:

"It was certainly within the standard of care. [Dr. Thistlethwaite is] a sort of

leader in our field of ethics and informed consent, and he was ahead of all of us in

terms of what he did.

15 No. 1-12-1593

In fact, he thought about it to the extent where he felt that if he told the patient

about these risk factors, then the patient would be coerced into thinking, well, if he

thinks it's fine, then I think it's fine.

And so he sort of separated the physician who was thinking about this from the

patient thinking about it by having the nurse coordinator do that, which is very

forward thinking and, you know, was well beyond anything any of us were doing."

¶ 53 Dr. Segev maintained that it was within the standard of care for the surgeon to delegate to

the resident the signing of the informed-consent form by the patient. Due to the number of

team members and the various activities involved in a transplant procedure, it was not

unusual for Dr. Thistlethwaite not to recall talking to the plaintiff. Dr. Thistlethwaite's

conduct was still within the standard of care

¶ 54 Dr. Segev further opined that it was within the standard of care not to tell the patient that

the organ donor was a homosexual. In the context of implied consent, no one was discussing

HIV; there were other infections, such as West Nile virus, that were of more concern. Dr.

Segev explained that in January 2007, where the 37-year-old donor was homosexual, with a

negative ELSA test, the standard of care for the informed consent process required the doctor

to inform the patient of the important aspects of the donor so that the patient could make an

educated decision as to whether to accept the organ. The areas of most concern were the

facts impacting the length of time the kidney would last. In this case, other than the

homosexual lifestyle of the donor, it was a perfect kidney. Dr. Segev maintained that it was

an amazing opportunity for anyone to receive that kidney because, "most people who die in

this country are not 35 and healthy." Dr. Segev further maintained that neither the HIV

16 No. 1-12-1593

infection and its treatment nor the hepatitis C infection caused the plaintiff's body to reject

the donated kidney.

¶ 55 Dr. Segev acknowledged that the CDC guidelines recommended against such a transplant

unless there was a survival benefit to it. However, the doctor explained that CDC did not set

policy for transplants, only guidelines and recommendations. Policy was set by the OPTN.

Prior to 2007, OPTN did not have a policy requiring surgeons to inform patients that the

donor had a homosexual lifestyle and tested negative for HIV; it was left up to the surgeon as

to whether the information would be provided. At the time the CDC guidelines were written

and then clarified, there were no medications to control HIV. HIV is considered a chronic

disease, controlled by medication. The estimated life expectancy of a person with HIV was

the same as a person's life expectancy without it. Transplants of livers and kidneys from

donors with HIV were done now because HIV was so well controlled.

¶ 56 Dr. Segev acknowledged that a patient who received a kidney from an infected donor

would most likely be infected with HIV. He further acknowledged writing that a patient who

is at the top of the transplant list and likely to receive a noninfected organ very soon was

better off refusing the infected or possibly infected kidney. The doctor noted that the

plaintiff was receiving dialysis through a catheter in her neck. Because of the risk of

infection, the death rate in such cases was the highest of the three methods of dialysis. The

plaintiff's position on the list for a kidney transplant did not determine how soon a kidney

match would be made for her.

¶ 57 Dr. Segev opined that it was within the standard of care for the transplant surgeon not to

inform a potential recipient of the donor's high-risk lifestyle or require the surgeon to know

17 No. 1-12-1593

that the potential recipient had refused prior kidneys. Subsequent to the plaintiff's case, the

policies were modified to require that patients be informed that a donor is high risk.

¶ 58 8. James Michael Millis, M.D.

¶ 59 Dr. Millis had been with the UCMC since 1994. He was professor of surgery at the

University of Chicago. He served as chief of the transplantation section and director of the

transplant center at the UCMC. After graduating from the University of Tennessee medical

school, Dr. Millis did his general surgical training and fellowship in transplant surgery at the

University of California at Los Angeles. The doctor had authored books and articles on

transplants. He served on editorial boards and reviewed publications. He had lectured and

given presentations on the subject of transplantation in Europe and Asia.

¶ 60 In January 2007, the national and local standards of care with regard to advising patients

of the CDC high-risk status of a prospective donor were the same. The standard did not

require that the patient be informed of the CDC high-risk status of a particular donor or that

the high-risk status be documented. Dr. Millis explained that the risk was so small that it was

not an important piece of information for the patient. The UCMC did not have any

procedure or policy requirement that the CDC high-risk information be conveyed to the

patient or documented in the patient's chart. If a surgeon wished to discuss that information

with the patient, the surgeon made that decision; the standard of care did not require it.

There was no requirement to document a refusal of a donated organ because the choice to

turn down a donated organ could be influenced by events in the patient's life. A patient may

turn down an organ from a high-risk donor one time and accept it another time.

¶ 61 B. Jury Instructions

18 No. 1-12-1593

¶ 62 Over the objection of the plaintiff, the trial court gave the UCMC's jury instruction No.

14, a modified version of Illinois Pattern Jury Instructions, Civil, No. 50.01 (2011)

(hereinafter, IPI Civil (2011)), under which the jury could find the UCMC liable if it found

Dr. Thistlethwaite liable for the plaintiff's injuries. The jury also received the plaintiff's jury

instruction No. 10 (IPI Civil (2011) No. 50.02), identifying both Dr. Thistlethwaite and nurse

Harmon as agents of the UCMC and providing that the acts or omissions of its agents were

the acts or omissions of the UCMC.

¶ 63 C. Jury Verdict

¶ 64 The jury returned a verdict finding for the UCMC and against the plaintiff. In answer to

the UCMC's two special interrogatories, the jury found that the negligence of the UCMC's

agent, Dr. Thistlethwaite, was not a proximate cause of the injuries claimed by the plaintiff,

and Dr. Thistlethwaite was not negligent in the manner in which he provided informed

consent to the plaintiff.

¶ 65 D. Posttrial Proceedings

¶ 66 The plaintiff filed a motion for a new trial alleging, inter alia, a claim of error in the

instructions given to the jury. In addressing the claim of error, the trial court acknowledged

that, standing alone, the UCMC's modified instruction was not an accurate statement of the

law, in light of the facts of this case. However, the court reasoned that, when considered

together, the remaining instructions allowed the jury to consider whether the UCMC was

responsible to the plaintiff for the conduct of its agents, Dr. Thistlethwaite and/or nurse

Harmon. The court further found that giving both the UCMC's No. 14, the modified IPI

Civil (2011) No. 50.01 and the plaintiff's No. 10, IPI Civil (2011) No. 50.02, remedied the

19 No. 1-12-1593

plaintiff's concern that the jury might believe that the plaintiff should have been but was not

told about the donor by someone other than Dr. Thistlethwaite.

¶ 67 After finding that none of the other grounds alleged in the motion required that the

plaintiff receive a new trial, the trial court denied the motion.

¶ 68 This appeal followed.

¶ 69 ANALYSIS

¶ 70 The plaintiff contends that the trial court erred when it gave the UCMC's instruction No.

14, a modified version of IPI Civil (2011) No. 50.01, to the jury. She argues that the error

denied her a fair trial.

¶ 71 I. Standard of Review

¶ 72 "The decision to give or deny an instruction is within the trial court's discretion. The

standard for determining an abuse of discretion is whether, taken as a whole, the instructions

are sufficiently clear so as not to mislead and whether they fairly and correctly state the law."

Dillon v. Evanston Hospital,

(2002). Whether an instruction accurately

conveys the applicable law is reviewed de novo. Barth v. State Farm Fire & Casualty Co.,

(2008).

¶ 73 II. Discussion

¶ 74 Unmodified, IPI Civil (2011) No. 50.01 states as follows:

"The defendants are sued as principal and agent. The defendant _____ is the

principal and the defendant _______ is [his] [its] agent. If you find that the defendant

[agent] is liable, then you must find that the defendant [principal] is also liable.

However, if you find that [the agent] is not liable, then you must find that [the

principal] is not liable." (Emphasis added.)

20 No. 1-12-1593

¶ 75 The jury received the UCMC's instruction No.14, a modified version of IPI Civil (2011)

No. 50.01. The modified version stated as follows:

"The defendant University of Chicago Medical Center is the principal and Dr.

Thistlethwaite is its agent. If you find that Dr. Thistlethwaite is liable, then you must

find that the defendant University of Chicago Medical Center is liable. However, if

you find that Dr. Thistlethwaite is not liable, then you must find that University of

Chicago Medical Center is not liable."

¶ 76 The jury also received the plaintiff's instruction No. 10 (IPI Civil (2011) No. 50.02).

The plaintiff's instruction stated:

"J. Richard Thistlethwaite, M.D. and Katrina Harmon were agents of the

defendant University of Chicago Medical Center at and before the time of this

occurrence. Therefore, any act or omission of the agent at that time was in law the

act or omission of the defendant University of Chicago Medical Center."

¶ 77 "The function of jury instructions is to convey to the jury the correct principles of law

applicable to the submitted evidence and, as a result, jury instructions must state the law

fairly and distinctly and must not mislead the jury or prejudice a party." (Emphasis omitted.)

Dillon,

. The parties are entitled to have the jury instructed on the issues

presented, the principles of law to be applied and the necessary facts to be proved to support

the jury's verdict. Dillon,

.

¶ 78 The plaintiff maintains that it was error to give the UCMC's modified instruction. She

asserts that the instruction was not an accurate statement of the law applicable in this case

and, in any event, should not have been given where the jury also received IPI Civil (2011)

No. 50.02.

21 No. 1-12-1593

¶ 79 We agree that in the context of the facts of this case, the UCMC's instruction No. 14 was

not an accurate statement of the law. IPI Civil (2011) No. 50.01 is applicable to a case in

which both the principal and the agent are sued, and agency is not at issue. The plaintiff's

instruction No. 10 (IPI Civil (2011) No. 50.02) is applicable where only the principal is sued,

and there is no issue as to agency. 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. Therefore, the plaintiff's instruction No. 10 was the proper

instruction for the jury to receive in this case.

¶ 80 Where IPI instructions accurately state the law applicable in a case and adequately charge

the jury, they should be used exclusively. Colls v. City of Chicago,

(1991). Modified or unmodified, the UCMC's instruction No. 14 was not a correct statement

of the law applicable in this case. Therefore, it was error to give the UCMC's instruction No.

14 to the jury.

¶ 81 While acknowledging that the UCMC's instruction No. 14 did not state the applicable

law, the trial court denied the plaintiff a new trial on that ground. The court reasoned that the

remaining jury instructions allowed the jury to find the actions of either Dr. Thistlethwaite or

nurse Harmon or both responsible for the plaintiff's injury. Since the doctor and the nurse

were agents of the UCMC, the court concluded that the jury could find the UCMC

responsible for their actions which led to the plaintiff's injury.

¶ 82 The plaintiff maintains that the remaining instruction could not cure the error in giving

the jury the UCMC's instruction No. 14. The plaintiff's theory of the UCMC's responsibility

for her injury was based on the doctrine of respondeat superior. At trial, Dr. Thistlethwaite

testified that he was responsible for obtaining the informed consent from the patient. Nurse

22 No. 1-12-1593

Harmon testified that, as the nurse coordinator, it was her responsibility to inform the

potential recipient of a donor kidney that the donor was high risk.

¶ 83 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. Ellig v. Delnor Community Hospital,

(1992). In support of her theory of liability, the plaintiff tendered her instruction

No.10, which identified both Dr. Thistlethwaite and nurse Harmon as agents of the UCMC

and for whose conduct the UCMC was responsible. However, the UCMC's instruction No.

14 permitted the jury to find the UCMC responsible only if Dr. Thistlethwaite was

responsible.

¶ 84 In People v. Jenkins,

(1977), the supreme court ordered a new trial for the

defendant where two of the instructions given to the jury contradicted each other on the

essential elements of the offence. Jenkins,

. The court held that contradictory

instructions on an essential element could not be cured by another instruction that was correct

because the jury would be forced to determine which instruction was correct. Jenkins,

.

¶ 85 The plaintiff argues that the modified instruction did not allow the jury to hold the

UCMC responsible for the conduct of nurse Harmon. We agree. Under the facts of this case,

the plaintiff's instruction No. 10, instructed the jury that UCMC was responsible for nurse

Harmon's acts as well as those of Dr. Thistlethwaite. The UCMC's instruction No. 14 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. Like Jenkins,

the fact that the jury received the plaintiff's instruction No. 10, which was an accurate

statement of the law applicable in this case, did not cure the error of giving the jury an

23 No. 1-12-1593

inaccurate statement of the law. Like Jenkins, the jury in this case was required to choose

between an accurate instruction which applied to the facts of this case and an inaccurate

instruction which did not, the error was not cured and requires that the plaintiff receive a new

trial.

¶ 86 The court in Jenkins acknowledged that while the other instructions might cure the error

caused by an inaccurate instruction, other instructions cannot cure the error where the

instructions are in direct conflict. Jenkins,

. Contrary to the trial court's

finding, the remaining jury instructions did not cure the error caused by giving the jury the

UCMC's No. 14 instruction. The sole reference to nurse Harmon in the instructions was the

plaintiff's instruction No. 10. The other instructions given to the jury on professional

negligence, the issues, and the burden of proof all referred to "a reasonably careful transplant

surgeon." If the jury followed all of the instructions, it could not find the UCMC liable for

the acts or omissions of nurse Harmon.

¶ 87 A faulty jury instruction does not require reversal unless the error results in serious

prejudice to the party's right to a fair trial. Ramirez v. FCL Builders, Inc.,

. In determining whether a party has been prejudiced, we consider whether the

instructions, taken as a whole, were sufficiently clear so as not to mislead the jury. Ellig,

. Even if the plaintiff was prejudiced by the use of the UCMC's instruction

No.14, there must be a reasonable basis supporting the conclusion that, but for the error, the

verdict might have been different. Lambie v. Schneider,

(1999).

¶ 88 The trial court erred in giving the jury the UCMC's instruction No. 14. The instruction

was an inaccurate statement of the applicable law and the error in giving it to the jury was not

remedied by giving the jury the plaintiff's instruction No. 10. Giving the UCMC's instruction

24 No. 1-12-1593

No. 14 when the jury was also given the plaintiff's instruction No. 10 served to mislead the

jury. The error was not remedied by the remaining instructions because they did not allow

the jury to consider the actions of nurse Harmon in determining the responsibility of the

UCMC for the plaintiff's injury. The error resulted in serious prejudice to the plaintiff in that

it denied her the right to have the jury instructed on her theory of the case. In the absence of

the UCMC's instruction No. 14, the jury could have found the UCMC responsible for the

plaintiff's injury based on the actions of either or both Dr. Thistlethwaite and nurse Harmon.

¶ 89 The error in this case caused serious prejudice to the plaintiff and, but for the error, the

jury might have reached a different verdict. Therefore, the plaintiff is entitled to a new trial.

Deciding this case as we do, we need not address the remaining issues raised by the plaintiff.

¶ 90 CONCLUSION

¶ 91 The judgment of the trial court is reversed, and the cause is remanded for a new trial.

¶ 92 Reversed and remanded.

¶ 93 JUSTICE LAMPKIN, specially concurring:

¶ 94 I join the panel's opinion, but write separately to note additional reasons that support the

conclusion to vacate the judgment in favor of UCMC and against plaintiff and remand the

matter for a new trial.

¶ 95 "The decision to give or deny a jury instruction is within the discretion of the circuit

court, and a new trial should be granted only if a party's right to a fair trial has been

prejudiced seriously." McCarthy v. Kunicki,

(2005). The court has

a duty to give the jury proper guidance and not generate confusion, and contradictory

instructions prevent the jury from following the instructions of the trial judge. People v.

Jenkins,

(1977). The trial court's decision to give the jury both UCMC's

25 No. 1-12-1593

instruction No. 14 (a modified version of IPI Civil (2011) No. 50.01) and plaintiff's

instruction No. 10 (IPI Civil (2011) No. 50.02), was reversible error. Each instruction was

self-contained and differed from the other so as to be inconsistent and contradictory if used

together. "Where the instructions are contradictory the jury is put in the position of having to

select the proper instruction"—a function that belongs exclusively to the trial court. Jenkins,

.

¶ 96 "It is well established that the giving of contradictory instructions on an essential element

in the case is prejudicial error, and is not cured by the fact that another instruction is correct."

. "Generally, if a verdict is tainted by an erroneous instruction then the entire verdict

is called into question, unless the instruction pertains to the issue of damages." Graham v.

Northwestern Memorial Hospital,

.

¶ 97 Here, "[a] retrial is required because the jury was inadequately instructed and was,

therefore, unable to apply the correct legal principles to the submitted evidence."

Mikolajczyk v. Ford Motor Co.,

(2008). UCMC's instruction No. 14 was

inapplicable on its face, did not accurately state the law in the context of this case, was

misleading and confusing for the jury, and deprived plaintiff of the strategy she was pursuing

of trying the case against the principal only.

¶ 98 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. 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. However, the erroneous instruction No. 14, tendered by UCMC and

given by the trial court over plaintiff's objection, gave plaintiff the impossible burden of

26 No. 1-12-1593

establishing, and the jury the impossible task of determining, that the nonparty agent, Dr.

Thistlethwaite, was liable. Because jurors are instructed that they may not discharge their

duty by picking out some instructions and disregarding others, this court cannot assume that

the jurors ignored instruction No. 14.

¶ 99 There was sufficient evidence in this case to support the verdict in favor of UCMC. The

jury could have found nurse Harmon's testimony—that it was her standard practice to inform

transplant patients about an organ donor's high-risk status—more credible than plaintiff's

testimony that she did not receive any donor-lifestyle information from nurse Harmon. The

jury also heard testimony concerning the standard of care applicable to the informed consent

procedure. Properly guided by plaintiff's instruction No. 10, 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. That process, however, was derailed by UCMC's

instruction No. 14, which mandated a verdict for UCMC unless the jury could perform the

impossible task of finding Dr. Thistlethwaite liable. Moreover, the instruction removed from

any meaningful consideration a key and hotly contested factual dispute in the case—the

actions of nurse Harmon. As far as can be known, the judgment rendered against plaintiff

might well have been made on the erroneous basis that the standard for informed consent

required that plaintiff be informed of the donor's high risk status but Dr. Thistlethwaite was

not liable where he delegated that task to nurse Harmon and she failed to fulfill that task.

¶ 100 The erroneous instruction No. 14—which required the jury to find UCMC not liable if it

found Dr. Thistlethwaite not liable—seriously prejudiced plaintiff. The instruction did not

define "liable," give the jury any guidance on how it was to decide whether Dr.

Thistlethwaite (a nonparty) was either liable or not liable, or account for the vital role of

27 No. 1-12-1593

nurse Harmon in the outcome of this case. The jury was forced to figure out the meaning of

a critical undefined legal term and was directed by the court to ground its ruling upon the

meaning of an undefined term. Therefore, the erroneous jury instruction constituted

reversible error.

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