Deveny v. Lincoln Park Family Physicians

2024 IL App (1st) 221043-U

• Court: Appellate Court of Illinois
• Decided: June 10, 2024
• Docket: 1-22-1043
• Status: Unpublished

Opinion

2024 IL App (1st) 221043-U No. 1-22-1043

FIRST DIVISION June 10, 2024

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

ALASIN DEVENY, Individually and as Special ) Appeal from the Circuit Court Administrator of the Estate of Patrick Deveny, Deceased ) of Cook County. ) Plaintiff-Appellant, ) ) v. ) No. 2017 L 6321 ) LINCOLN PARK FAMILY PHYSICIANS, JOHN ) TENHUNDFELD, M.D., and WENDY A. PLOEGSTRA, ) MSN, RN, FNP-BC, ) Honorable ) Bridget Hughes, Defendants-Appellees. ) Judge presiding.

JUSTICE PUCINSKI delivered the judgment of the court. Justices Lavin and Coghlan concurred in the judgment.

ORDER

¶1 Held: Following a directed verdict for the defendant physician and a jury verdict in favor of the remaining two defendants, we reverse and remand for a new trial of plaintiff’s negligence claims against all three defendants. This is because (1) the trial court erred in entering a directed verdict as to the defendant physician and (2) the trial court erred in responding to an ambiguous jury question while it deliberated the claims against the remaining two defendants. No. 1-22-1043

¶2 This is a medical negligence case brought by Alasin Deveny (Alasin or plaintiff),

individually and as special administrator of the estate of her late husband, Patrick Deveny

(Patrick). During a jury trial, the trial court granted a motion for directed verdict in favor of

defendant John Tenhundfeld, M.D. (Dr. Tenhundfeld), after which the case proceeded against the

remaining defendants, Lincoln Park Family Physicians and Wendy A. Ploegstra, MSN, RN, FNP-

BC (Ploegstra). Following deliberations, the jury returned a defense verdict. Plaintiff’s post-trial

motion was denied.

¶3 On appeal, plaintiff asserts errors related to the directed verdict, the jury instructions, and

the court’s responses to a jury question during deliberations. For the following reasons, we find

the court erred in entering a directed verdict for Dr. Tenhundfeld. Further, the court erred in

responding to the jury’s ambiguous question during its deliberations as to the remaining

defendants. Thus, we reverse and remand for a new trial as to all three defendants, to be presided

over by a different trial judge.

¶4 BACKGROUND

¶5 At the time of his death in 2011, Patrick was a patient of Dr. Tenhundfeld’s medical

practice, Lincoln Park Family Physicians. Ploegstra was a nurse practitioner at the same practice.

After Patrick was diagnosed with carotid artery dissection in April 2011, Dr. Tenhundfeld

prescribed Patrick anticoagulant medications. 1 Dr. Tenhundfeld last met with Patrick on April 25,

2011. Dr. Tenhundfeld asked Patrick to return for his next appointment three days later, April 28,

2011.

1 “Carotid artery dissection occurs when there is a tear or separation in the layers of the carotid artery in

your neck. *** The condition can heal itself over time but may cause life-threatening complications, such as stroke or bleeding in the brain.” https://my.clevelandclinic.org/health/diseases/22697-carotid-artery-dissection (last visited April 26, 2024).

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¶6 During the early morning hours of April 28, 2011, Patrick’s wife, Alasin, made three calls

to the medical practice and spoke witih Ploegstra about Patrick’s symptoms. Patrick was

eventually taken to a hospital and underwent surgery, but he died the following day. It is

undisputed that the cause of death was an intra-abdominal bleed.

¶7 In June 2017, plaintiff commenced this lawsuit. Among other allegations, plaintiff alleged

that defendants negligently managed his anticoagulant medications and that Alasin and Patrick

were not instructed to seek emergency care during the calls made on April 28, 2011. The case

proceeded to a jury trial in February 2022.

¶8 Dr. Morris Papernik

¶9 Plaintiff’s medical expert, Dr. Morris Papernik, described a carotid artery dissection and

testified that it is typically treated with anticoagulants, or “blood thinners,” to prevent clot

formation. 2 He testified that the major risk of anticoagulants is bleeding.

¶ 10 Dr. Papernik described an oral anticoagulant, warfarin, which is also known under the

brand name Coumadin. He testified that a measurement known as “INR” (International

Normalized Ratio) is used to check how well the blood clots. 3 He explained that a higher INR is

appropriate for certain risky conditions. For a serious condition like carotid dissection, he testified

that a 2 to 3 range is appropriate. He explained that a higher risk of clotting warrants more

aggressive treatment with Coumadin, but this must be balanced with the risk of bleeding.

2 “Anticoagulants are a family of medications that stop your blood from clotting too easily. They can break

down existing clots or prevent clots from forming in the first place. These medications can help stop life-threatening conditions like strokes, heart attacks and pulmonary embolisms, all of which can happen because of blood clots.” https://my.clevelandclinic.org/health/treatments/22288-anticoagulants (last visited May 3, 2024).

3 “The INR is found using the result of the prothrombin time (PT) test. This measures the time it takes for

your blood to clot. The INR is an international standard for the PT.” https://www.urmc.rochester.edu/encyclopedia/content.aspx?contenttypeid=167&contentid=international_normalized _ratio (last visited April 26, 2024).

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¶ 11 Dr. Papernik also described a separate anticoagulant, Lovenox, that is injected and works

“from a different pathway.” Dr. Papernik agreed that being on two anticoagulants increases the

risk of not being able to stop a bleed. He testified that Lovenox takes effect within hours, whereas

Coumadin takes longer. He testified that a physician typically does not put a patient on both drugs

long-term; rather, “once the Coumadin is at the level you want it at, then you stop the Lovenox.”

The bleeding risk is highest in the “initial phase” when a patient is on both Lovenox and Coumadin.

¶ 12 Dr. Papernik testified that physicians should counsel patients on anticoagulants that they

are at great risk of internal bleeding if they have trauma. He also testified that internal bleeds can

occur even without trauma, so patients should be told that “if things change, * * * you need to let

us know and you need to be seen” to make sure there is no bleeding.

¶ 13 Dr. Papernik had reviewed Patrick’s medical records as well as the deposition testimony

of Alasin, defendants, and other witnesses. Dr. Papernik was asked a number of questions by

plaintiff’s counsel about the contents of the medical records. Patrick had been a patient of Dr.

Tenhundfeld for several years. At some point in late March or early April 2011, Patrick complained

of headaches, neck pain, and nausea. Dr. Tenhundfeld initially treated Patrick for “sinus

headaches” by treating him with antibiotics, nasal sprays, and steroids.

¶ 14 After Patrick’s symptoms persisted, Dr. Tenhundfeld sent Patrick for an MRI, which

revealed a dissection of the right carotid artery. Patrick was also sent for a spinal tap. 4 He

4 “A lumbar puncture (spinal tap) is a test used to diagnose certain health conditions. *** During a lumbar

puncture, a needle is inserted into the space between two lumbar bones (vertebrae) to remove a sample of cerebrospinal fluid.” https://www.mayoclinic.org/tests-procedures/lumbar-puncture/about/pac- 20394631#:~:text=A%20lumbar%20puncture%20(spinal%20tap,a%20sample%20of%20cerebrospinal%20fluid.

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developed a “spinal tap headache. 5 ” He was hospitalized in mid-April to have a “blood patch to

seal the leak” from the spinal tap. 6 While in the hospital, he was started on Lovenox and Coumadin.

Patrick was discharged from the hospital on April 22.

¶ 15 Dr. Papernik opined that the likely cause of Patrick’s carotid dissection was “fibrodysplasia

of the blood vessel.” He described this as a vascular abnormality in which the walls of the blood

vessels are weak. A person with such a vascular abnormality has a higher risk for a dissection

elsewhere in the body. Coumadin and Lovenox increase the risk that a person who suffers a

dissection will not stop bleeding.

¶ 16 After his discharge from the hospital, Patrick followed up with Dr. Tenhundfeld at his

office on April 25, 2011, to “check the level of his anticoagulation with the Coumadin.” On that

date, his INR was found to be 1.3. Dr. Papernik testified that this level is a bit higher than normal

range, meaning Patrick was “starting to become anticoagulated with the Coumadin,” although he

was not at a “therapeutic” level. He agreed this meant Patrick was at an “increased risk to bleed.”

¶ 17 Dr. Papernik testified that an INR reading actually reflects the level in the body three days

earlier. Thus, the INR level measured on April 25 reflected the level in Patrick’s system that existed

on April 22. He agreed that a reasonable, careful physician would know that his “real level” as of

April 25 was actually higher and could not be measured until three days later.

¶ 18 Dr. Papernik testified that Dr. Tenhundfeld’s chart from April 25 indicated that Patrick

“was doing okay” and “feeling pretty good”, and that Patrick was planning to go to Texas the

5 “A spinal headache is an intense headache that happens when the amount of cerebrospinal fluid (CSF)

around your brain decreases” due to leakage of CSF, which can result from a spinal tap. https://my.clevelandclinic.org/health/diseases/17927-spinal-headaches 6 A spinal headache may be treated with an epidural blood patch, in which “a provider injects a small

amount of your blood over the hole that’s leaking CSF. When the blood clots, it seals the hole.” https://my.clevelandclinic.org/health/diseases/17927-spinal-headaches

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following Friday, April 28. Dr. Tenhundfeld’s note did not indicate that he counseled Patrick to

monitor his INR status on the way to Texas. On April 25, Dr. Tenhundfeld increased Patrick’s

Coumadin dose to 6 milligrams. Dr. Papernik stated he did not criticize this dosing decision.

However, he proceeded to opine that Dr. Tenhundfeld should have re-checked Patrick’s INR

sooner after the last appointment on April 25.

¶ 19 Asked about the standard of care for how soon to re-check INR level, Dr. Papernik testified

that for a patient who is “at risk for either overanticoagulation or having an underlying vascular

problem”, the recommendation is to “check it in 48 hours” after the last reading. Thus, he believed

Patrick’s INR should have been rechecked on April 27, or 48 hours after the April 25 visit. Dr.

Tenhundfeld’s failure to do so was a deviation from the standard of care.

¶ 20 Plaintiff’s counsel asked Dr. Papernik “What do you understand [Patrick’s] symptoms to

have been in the afternoon of 4/27?” Dr. Papernik testified that on the afternoon of April 27, Patrick

had “GI discomfort” and gastrointestinal issues.” That evening, Patrick left a “going away” dinner

early because he was not feeling well. Dr. Papernik agreed the records reflected that Patrick had

not eaten much after having a bratwurst in the afternoon.

¶ 21 Dr. Papernik testified that records showed that Alasin called Lincoln Park Family

Physicians around 2:22 a.m. on April 28. She reached an answering service, and Ploegstra called

Alasin back. Ploegstra’s notes reflected that Alasin told Ploegstra that Patrick was having

abdominal pain, had vomited, had chills, and was unable to have a bowel movement. Dr. Papernik

opined that Patrick was having an intra-abdominal bleed that began on April 27 and became

progressively worse. Because he was on anticoagulants, the bleed would not stop.

¶ 22 Dr. Papernik testified that Ploegstra’s notes from the first call indicated that Patrick drank

some Gatorade and his “color came back a little bit.” The notes stated that it was “agreed that with

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ongoing hydration, patient may continue to improve.” Ploegstra’s notes reflected the plan was to

“push fluids” and follow up in the office the next morning at 10:00 a.m., but that Alasin should

call if anything changed. Dr. Papernik agreed that Ploegstra’s notes from the first call included a

reference to the emergency room, but that “they agreed on a different plan” after Ploegstra was

told that Gatorade made Patrick feel better. Ploegstra’s notes did not state that Patrick refused to

go to the emergency room.

¶ 23 Dr. Papernik further testified about Ploegstra’s notes from Alasin’s second call at 3:22

a.m., when she reported that Patrick was doing worse. He had vomited and he also had a small

bowel movement with a tinge of blood in the toilet. He also had chills and sweats. Ploegstra’s

written notes from the second call stated:

“Due to no further changes in his condition and suspected

gastroenteritis from the barbecue and the bratwurst at lunch, when

patient started feeling ill, patient and wife were advised to continue

present management patient *** with sips of water and Gatorade for

hydration. Rest, frequent monitoring of status changes. Wife was

advised to call with any further change or call 911. If improvement

in status, follow up in a.m. at the office.”

¶ 24 Ploegstra’s notes indicated that Alasin called a third time at 5:06 a.m., at which time she

reported that Patrick was doing a “lot worse” and had “vomiting, dark color, and often.” The notes

reflected that Ploegstra advised Alasin to “immediately call 911.” Dr. Papernik agreed this was the

first time it was charted that they should call 911.

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¶ 25 Patrick was transported by ambulance to the emergency room. An INR draw in the

emergency room showed that his INR was 2.0. In the emergency room, Patrick suffered cardiac

arrest, from which he never woke up.

¶ 26 Patrick was taken to surgery, where it was discovered that he had internal bleeding of the

interior mesenteric artery. Dr. Papernik testified that surgeons were able to stop the bleeding.

However, Patrick died because too much time had passed and “he was hypoxic for too long.” Dr.

Dr. Papernik testified the “bleed was totally fixable.”

¶ 27 Dr. Papernik gave his opinion that Dr. Tenhundfeld’s instructions “were below the standard

of care.” Specifically, he opined that Dr. Tenhundfeld should have asked Patrick to come back on

April 27 to have INR rechecked (that is, 48 hours after the April 25 appointment), instead of April

28. Thus “the criticism would be that he should have come in at least a day sooner to know where

the INR was going.”

¶ 28 Dr. Papernik also criticized Dr. Tenhundfeld’s approval of Patrick’s travel plans, stating:

“the standard of care would be that the patient should be stabilized on the medication before he

was allowed to travel in a car, while on both these medications, and not -- and you don’t know

where his INR is going. So that’s a deviation as well.” He agreed that Dr. Tenhundfeld’s notes

gave the impression that “traveling was fine” and that Patrick’s condition was “not going to affect

[Patrick’s] ability to move.”

¶ 29 When plaintiff’s counsel asked Dr. Papernik if he believed Dr. Tenhundfeld’s deviations

from the standard of care caused Patrick harm, he answered: “Well, they contributed to his

demise.” He subsequently testified that Dr. Tenhundfeld’s instructions contributed to Patrick’s

death because “there was not enough emphasis placed on the fact that things can go bad really

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fast.” He agreed that “had [Patrick’s] INR been checked on the 27th , that would have been before

the emergency room visit” on the morning of April 28.

¶ 30 Dr. Papernik also gave his opinion that Ploegstra caused or contributed to Patrick’s death,

because “the delay of getting him to the hospital allowed the bleed to persist and continue.” He

testified that if Patrick had gotten to the emergency room sooner, he would have survived.

¶ 31 On cross-examination, Dr. Papernik acknowledged that Dr. Tenhundfeld documented that

he counseled Patrick, although the records did not state how much time he spent counseling Patrick

or the details of what he told Patrick or Alasin. Dr. Papernik acknowledged he did not know what

Dr. Tenhundfeld told them about the risk of bleeding. However, Dr. Papernik testified that Patrick

and Alasin’s actions showed that they were not concerned.

¶ 32 Dr. Papernik agreed with defense counsel that as of April 27, 2011 (48 hours after the April

25 visit to Dr. Tenhundfeld), the INR level would not be supratherapeutic. That is, he agreed that

if the INR had been checked in 48 hours, it would not have shown Patrick was

“overanticoagulated.” He also agreed that Patrick’s INR was at a “therapeutic” level, 2.0, when it

was checked on April 28 in the emergency room.

¶ 33 Defense counsel asked Dr. Papernik to explain the basis for his criticism that Dr.

Tenhundfeld did not adequately communicate to Patrick and Alasin that “things could go bad fast.”

Dr. Papernik responded that he could tell “from their actions, they were getting ready to move,

they were packing, the movers were coming on the 28th.” He testified that “they were in the

moving mode, and so they were apparently oblivious about what would possibly happen.” Dr.

Papernik acknowledged he did not know what was said by Dr. Tenhundfeld to Patrick and Alasin,

but maintained that “[t]heir actions in getting ready to move” showed “that they weren’t

concerned.”

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¶ 34 When defense counsel asked Dr. Papernik to state any other way in which Dr.

Tenhundfeld’s negligence caused Patrick’s injury, he answered: “The failure to recognize the

possibility that *** this may actually be a vascular abnormality and the patient needs to be

monitored more closely.” When defense counsel asked if it would be “speculation” to say whether

Patrick’s treatment would have changed had he been monitored more closely, Dr. Papernik

answered: “Well, yeah, somewhat. But you don’t know what would have happened if you checked

it on the 27th .”

¶ 35 Dr. Papernik acknowledged that Ploegstra testified at her deposition that in the April 28

phone calls she advised Patrick and Alasin to go to the emergency room, but Patrick did not want

to go. He also acknowledged Alasin’s conflicting deposition testimony that Ploegstra never

mentioned going to the emergency room during those calls.

¶ 36 On redirect examination, Dr. Papernik agreed that the medical records did not reflect that

Dr. Tenhundfeld counseled Patrick about the risk of bleeding. He agreed that although the

emergency room INR measurement was 2.0, the real number was higher because the number

“reflects the dose from three days before.” Thus, he agreed that Patrick was “likely

supratherapeutic” when he got to the emergency room.

¶ 37 Dr. Papernik acknowledged that some literature indicates that patients on Coumadin should

have INR checked every 72 hours. However, he opined that this is not the case for patients with a

vascular abnormality, or for patients who are also on Lovenox. He maintained that Patrick’s INR

should have been checked 48 hours after the April 25 visit, that is, April 27, 2011.

¶ 38 Elsewhere on redirect examination, plaintiff’s counsel elicited the following testimony

from Dr. Papernik about what would have happened had Patrick been seen on April 27:

“Q. Do you believe Pat was bleeding on 4/27?

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A. Yes.

Q. And do you believe, if he saw Dr. Tenhundfeld on 4/27, Dr.

Tenhundfeld would have realized he had signs and symptoms of

bleeding, or should have realized?

A. Yes.”

¶ 39 Also on redirect, Dr. Papernik again testified that Patrick and Alasin’s actions indicated

that Patrick was not adequately counseled: “they were proceeding as if everything was going to go

ahead [with the move], * * * they didn’t anticipate any problems. And the fact that the movers

were coming on Thursday, and so therefore they felt that everything was under control and they

can leave on Friday.”

¶ 40 On recross-examination, he agreed that Dr. Tenhundfeld used a dosing protocol adopted

by the American Academy of Family Practice. He agreed that when the INR was tested on April

28, it was not supratherapeutic because it was not over 2.0.

¶ 41 Carol Patton, NP

¶ 42 Plaintiff called Carol Patton, a nurse practitioner, as an expert witness. She had reviewed

medical records and deposition testimony, including that of Alasin and Ploegstra.

¶ 43 Patton was asked about the standard of care as to how a nurse practitioner should handle

an after-hours call. She testified that a nurse practitioner must “assume the worst” and make a

decision quickly. She testified that unless one is confident there is not a life-threatening situation,

a nurse practitioner should direct the patient to the emergency department.

¶ 44 Patton testified that Ploegstra deviated from the standard of care because she should have

“sent the patient to the ER or called 911 for the patient.” She opined that in the first two calls in

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the early morning of April 28, 2011, Ploegstra breached the standard of care by giving advice other

than telling Patrick to go to the emergency room.

¶ 45 Alasin Deveny

¶ 46 Alasin testified that she and Patrick were married in 2002. As of spring 2011, they were

planning a move from Chicago to Texas for Patrick to pursue a job opportunity.

¶ 47 Dr. Tenhundfeld had been Patrick’s primary care physician since 2005. Alasin testified that

Patrick was active, had no significant medical history, and was generally healthy. He was 40 years

old at the time of his death.

¶ 48 In March 2011, Patrick told Alasin he had a “sinus infection” and complained of headaches,

sinus pressure, and runny nose. He was given a prescription nose spray and antibiotics. She recalled

he went to the doctor multiple times, including a visit to Dr. Tenhundfeld on March 29.

¶ 49 In early April 2011, Patrick still felt congested and stuffy and complained of headaches

from “sinus pressure.” After another visit with Dr. Tenhundfeld, an MRI was ordered.

¶ 50 Alasin testified that, one April morning when Patrick wasn’t feeling well, she told him to

call the doctor’s office. After he called, Ploegstra told him to go to the hospital. Patrick underwent

a “lumbar thing” at the hospital but returned home.

¶ 51 On the evening of April 18, Alasin returned from work to find Patrick hunched over and

complaining of very bad headaches. She brought him to the emergency room. Patrick stayed in the

hospital until Friday, April 22. During the hospitalization, she was told that there was a tear of a

“carotid artery in his neck.” She recalled Dr. Tenhundfeld telling her that Patrick would be put on

“pills and a shot” to prevent blood clots, and that his INR would be checked on April 25.

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¶ 52 Alasin went with Patrick to Dr. Tenhundfeld’s office on April 25, 2011, where he

administered a blood test. She recalled telling Dr. Tenhundfeld that they were moving to Texas

and that she asked if they needed to delay the trip. Dr. Tenhundfeld said that they could travel.

She specifically recalled he told them they could find a doctor in Texas to do the blood check:

“[W]e said, Is it okay to move? He said yes, and that when we got to Texas, to just find someone.

I said, What do we look for? He said, Anybody can do it. Let them know you need an INR.” Dr.

Tenhundfeld told them to come back on April 28 for another INR blood check, and they made an

appointment to see him on that date.

¶ 53 On April 27, Alasin was home packing while Patrick went to a barbeque at a friend’s home,

which was to be followed by a Cubs game with a number of friends. At some point after Patrick

went to the ballpark, he called Alasin and asked her to pick him up because he was tired. She

brought him home. While she packed, he rested and was “organizing and logging his comic

books.”

¶ 54 That evening, they had plans to join neighbors in their apartment building for a goodbye

dinner party. She recalled that Patrick took maybe “one bite of food” before he said he had a

stomachache and excused himself to go back to their apartment. When Alasin asked if he was ok,

he said “Yeah. I am just going to – he wanted to go to the bathroom.”

¶ 55 Alasin returned to their apartment about 45 minutes to an hour later. Patrick answered the

door and stated he had a stomachache and was trying to pass gas. Shortly thereafter, he was “sitting

in the bathroom a lot trying to go to the bathroom” and asked her to get something for his

constipation. She went to a CVS and brought home some Gas-X. He took one and said he felt a

bit better but was still very tired and had a stomachache. He kept going to the bathroom, trying to

have a bowel movement.

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¶ 56 Patrick’s symptoms worsened sometime after midnight. He started to get sweaty, his

“stomach hurt pretty bad, and he was thirsty.” He had been drinking Gatorade and water but threw

up clear vomit. His skin became gray.

¶ 57 Alasin called Dr. Tenhundfeld’s office around 2:32 a.m. and reached an answering service.

Ploegstra called Alasin back soon afterward. Alasin kept her phone on speaker mode during the

call. Most of the discussion was between Ploegstra and Alasin, but Alasin brought the phone over

to Patrick so Ploegstra could ask him directly about what he had eaten and how his stomach felt.

Patrick told Ploegstra that he ate bratwurst at the barbecue. Alasin recalled Ploegstra said “I wonder

if that’s giving you the stomachache” and mentioned that it could be a bowel obstruction.

¶ 58 During the first phone call, Ploegstra told them that Patrick should keep drinking water.

She told Alasin to call back if he worsened. Alasin testified that at no point did Ploegstra use the

word “bleed,” indicate there was a potentially life-threatening condition, or mention calling 911

or going to the emergency room.

¶ 59 After the first phone call, Patrick was “sleeping on and off” and trying to use the bathroom.

At one point he said he had a very small bowel movement and momentarily felt better, but it was

“short lived.” He asked for a pillow and blanket in the bathroom. Alasin recalled Patrick was

“laying down a lot”, getting very sweaty, and “his color was kind of off.” He drank water but was

throwing it up.

¶ 60 Alasin made a second call around 3:23 a.m., and Ploegstra called her back. She told

Ploegstra that Patrick was sweaty, his skin was gray and he was throwing up a lot more. Ploegstra

told Alasin she could bring Patrick to the office “first thing in the morning”, at 8:00 or 8:30, even

if his scheduled appointment was not until later. Ploegstra told Alasin to continue to have Patrick

rest and drink water and again said to call back if anything changed. Alasin testified that Ploegstra

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did not speak to Patrick during the second call. During the second call, Ploegstra did not indicate

there was a life-threatening situation and did not discuss calling 911 or going to the emergency

room.

¶ 61 After the second call, Patrick got more sweaty and gray. He began throwing up and

something that looked like “coffee grinds” was in the vomit. Alasin texted a friend and told her

what was going on; her friend told her to call 911. Alasin called 911 and was told an ambulance

was being sent.

¶ 62 After Alasin called 911, she again called the answering service, and Ploegstra quickly

returned the call. Alasin told Ploegstra what happened and that she had called 911. Ploegstra told

her “[y]ou did everything right” and indicated that she would let Dr. Tenhundfeld know.

¶ 63 Paramedics arrived and loaded Patrick into an ambulance. Alasin drove to the hospital

while he was taken to the emergency room. A doctor eventually told her that Patrick had gone into

cardiac arrest.

¶ 64 Patrick was later taken to the ICU. He underwent surgery that evening. Shortly after

surgery, Alasin was told that he was not going to survive. He died the next day, April 29, 2011.

Dr. Tenhundfeld later told Alasin the cause of death was a “bleed in the S part of the colon.”

¶ 65 Following Alasin’s testimony, her counsel presented excerpts from the videotaped

deposition testimony of Dr. Tenhundfeld and Ploegstra. In his deposition testimony, Dr.

Tenhundfeld indicated that Coumadin and Lovenox “worsened” Patrick’s bleed that began on

April 27. He acknowledged that a combination of anticoagulants would “make the bleeding very

difficult for the body to stop on its own.” He agreed when asked if was more likely than not that

Patrick would have survived if he had received treatment earlier.

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¶ 66 Plaintiff’s counsel also played portions of Ploegstra’s videotaped testimony. In those

excerpts, she acknowledged that she knew that Patrick was on anticoagulants and was at a “high

level of risk for a bleed.”

¶ 67 Directed Verdict as to Dr. Tenhundfeld

¶ 68 After plaintiff rested, defendants moved for a directed verdict as to Dr. Tenhundfeld, citing

lack of proof of causation between his alleged negligence and Patrick’s injury. During argument

on the motion, the court asked plaintiff’s counsel to specify “exactly what [are] the deviations from

the standard of care of Dr. Tenhundfeld” that had been proven. Plaintiff’s counsel argued there

was “deviation on the management of the Coumadin” and the “timing of the recheck of the INR,

the 48 hours versus 72.” Plaintiff argued it was “incumbent to check within 48 hours, rather than

release him to go to Texas sooner.”

¶ 69 When the court asked how Dr. Tenhundfeld’s advice caused Patrick’s death, plaintiff’s

counsel explained that Patrick should have been instructed to return in 48 hours after the April 25

appointment (that is, April 27), so that he “would have been in the office” on that day, when he

was showing symptoms of an abdominal bleed. Plaintiff’s counsel argued there was testimony that

the bleed started on April 27 and that Patrick was complaining of symptoms “in the afternoon” on

that date.

¶ 70 Plaintiff’s counsel thus argued that, had Dr. Tenhundfeld scheduled a follow up

appointment for an INR check on April 27 instead of April 28, Patrick’s internal bleeding would

have been discovered and treated in time:

“THE COURT: What should [Dr. Tenhundfeld] have done?

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[Plaintiff’s counsel]: So he had to see him in the office on

the 27th , he had to take his INR, and not just take his INR, do the

physical exam, which Pat would have seen--

THE COURT: Dr. Papernik never said this.

[Plaintiff’s counsel:] – and all the symptoms that Pat is

reporting to Allie from the baseball game, all the symptoms he’s

telling her in that afternoon, when everyone’s saying more likely

than not he’s bleeding, everyone in the case agrees on that, he’s

bleeding in the afternoon of 4/27.

More likely than not he’s bleeding. He has symptoms

associated with the bleed. He has a vascular abnormality, no

explanation for a carotid dissection. The doctor has to consider he’s

at high risk for another bleed elsewhere due to the vascular

abnormality, and examine him for any such bleeds or signs and

symptoms.

He doesn’t have to say it definitely would have happened,

Judge. He has to say, more likely than not, to a reasonable degree of

medical certainty, which is what he said, that he would have been

showing signs and symptoms of a bleed * * * Dr. Tenhundfeld had,

under the standard of care, a duty to consider him a risk, a high risk

for other bleeds in other areas, which is what he had because of his

vascular abnormality, and treat him accordingly that day. Then you

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have to send him to the hospital to have the Coumadin reversed and

all the things he said.”

¶ 71 In response, defense counsel argued it was too speculative to assume that, had Patrick

visited Dr. Tenhundfeld’s office for an INR check on April 27, he would have exhibited symptoms

of internal bleeding that would lead to timely treatment. Noting evidence that Patrick began

complaining of symptoms in the afternoon, defense counsel argued that Patrick may have shown

“no symptoms” if he saw Dr. Tenhundfeld for a morning appointment on April 27. Defense

counsel also argued that it was speculative to suggest that Patrick would have acted differently,

“had there been another opportunity on the 27th to remind the patient of how bad things can go.”

¶ 72 The court agreed that plaintiff failed to prove proximate causation to sustain negligence

against Dr. Tenhundfeld. The court commented that even if Patrick returned to the doctor’s office

in 48 hours, another INR reading “wouldn’t be indicative of an abdominal bleed.” Rather, “[t]he

only thing that would have indicated an abdominal bleed were his physical symptoms.” It noted

there was “no testimony” that checking his INR on April 27 would have revealed an abdominal

bleed. The court also remarked there was “no evidence that Dr. Tenhundfeld did not inform him

of all of the risks associated with this drug.” The court thus granted the motion for directed verdict

as to Dr. Tenhundfeld.

¶ 73 Dr. Tenhundfeld

¶ 74 After the directed verdict for Dr. Tenhundfeld, the defense presented its case on behalf of

the remaining defendants, Ploegstra and Lincoln Park Family Physicians.

¶ 75 The defense called Dr. Tenhundfeld to testify. He described anticoagulation therapy and

explained that after a carotid artery dissection, blood clots can form that could cause a stroke. This

was the risk he was trying to prevent by prescribing Lovenox and Coumadin to Patrick.

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¶ 76 Dr. Tenhundfeld testified that on April 25, Patrick’s INR was 1.3, which was

“subtherapeutic”; the therapeutic range was between 2 and 3. Patrick’s INR was 2.0 when it was

measured after he was brought to the emergency room on April 28.

¶ 77 Dr. Tenhundfeld testified that prior to Patrick’s discharge from the hospital on April 22,

2011, he discussed Coumadin with Patrick while Alasin was in the room. He stated that he

customarily tells patients about the increased risk of bleeding with anticoagulants, and that it can

be fatal. He tells patients to watch out for headache, chest pain, or abdominal pain, as they can

indicate internal bleeding. He testified that a note in the medical records reflected that he counseled

Patrick and Alasin about the risk of bleeding.

¶ 78 Dr. Tenhundfeld further testified that on April 25, he measured Patrick’s INR, which was

1.3. This was below the “treatment goal” of a level between 2 to 3, according to the protocol of

the American College of Family Practitioners. Thus, he directed Patrick to increase his daily

dosage from 5 milligrams to 6 milligrams. He instructed Patrick to return in three days (April 28),

at which time “we were going to repeat his INR.”

¶ 79 Wendy Ploegstra

¶ 80 Ploegstra testified that during the calls on the early morning of April 28, 2011, she made

shorthand “scratch notes” while she spoke on the phone. Later on the morning of the 28th, she

reviewed the shorthand notes to write out more complete notes. She also typed the “exact

information word for word” from her handwritten notes into the medical records.

¶ 81 As of April 28, 2011, Ploegstra was aware that Patrick was on Lovenox and Coumadin.

She knew that these medicines make it more difficult to stop bleeding. Ploegstra testified about

her notes from the first call at 2:25 a.m., which reflected she spoke to both Patrick and Alasin. Her

- 19 - No. 1-22-1043

notes said: “Patient said he had vomited bile, not blood, and felt weak. On his way to bathroom,

he ran into walls and fell down. Wife reported a gurgling sound and was concerned.”

¶ 82 Ploegstra’s notes further said that “Patient and wife were both advised to go to emergency

room for possible bowel obstruction and stroke.” Ploegstra recorded that Patrick “told [her] he did

not feel it was an emergency.”

¶ 83 Ploegstra testified that she recommended going to the emergency room during the first call,

but Patrick indicated “it’s not that bad. I don’t think this is an emergency.” Ploegstra recalled she

told them that “there could be bleeding,” although that was not specifically documented in her

notes.

¶ 84 Ploegstra acknowledged the notes from the first call said: “It was then agreed that with

ongoing hydration, patient may continue to improve.” However, she maintained that she primarily

recommended going to the emergency room. She stated: “The agreed upon part was the advice

that if you’re going to stay home then * * * this is some medical advice I could provide you at

home. But not an alternative to going to the emergency room.” She denied that she advised them

that it was sufficient to remain home and continue to hydrate. Ploegstra testified that the majority

of the first phone call was a “back and forth” discussion trying to convince Patrick to go to the

emergency room.

¶ 85 Ploegstra also testified about her notes of the second call at 3:22 a.m. They reflected that

Alasin reported that Patrick was worse and “vomited up the water/Gatorade with some yellow

color to it, not blood, since last phone call.” The notes further stated that: “Patient denied no blood

in vomit, not blood in actual stool, no increasing abdominal pain, no headache.”

¶ 86 Ploegstra testified that in the second call, she again advised Patrick to go to the emergency

room. However, he indicated that he felt his symptoms were from stomach upset “related to the

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prior day’s barbecue that he ate.” Ploegstra maintained her primary recommendation was to go the

emergency room, but if Patrick and Alasin would not do so, her secondary advice was reflected in

the portion of that note that said to “continue present management with sips of water/Gatorade for

hydration, rest, and frequent monitoring of status changes.” She agreed she did everything she

could do to convince Patrick to go to the emergency room.

¶ 87 Ploegstra’s notes from the third call at 5:06 a.m. stated: “Wife called to report patient doing

a lot worse. Now vomiting dark color and often. Advised wife immediately to call 911. Wife asked

what to tell 911, and I advised her to say her husband is very sick and needs an ambulance.”

Ploegstra agreed that at that point it was an “emergency” and Patrick needed immediate attention.

¶ 88 Janet Davis, NP

¶ 89 The defense also called nurse practitioner Janet Davis as an expert witness. Davis testified

it was not unusual for a nurse practitioner to take handwritten notes and transcribe them later,

without keeping the original notes. Davis testified that, based on Ploegstra’s notes and depositions,

she believed Ploegstra had in fact advised Patrick to go to the emergency room. She agreed that

Ploegstra would have violated the standard of care if she had not recommended going to the

emergency room. However, she did not believe the standard of care required Ploegstra to call 911

or to call an ambulance for Patrick. Based on her review, Davis believed Ploegstra had met the

applicable standard of care for a nurse practitioner.

¶ 90 Jury Instructions

¶ 91 Following the close of evidence, the court held a jury instruction conference. Plaintiff

proposed submitting an “issues instruction” that would state that Ploegstra and Lincoln Park

Family Physicians were allegedly negligent in six respects. Specifically, the proposed instruction

contained allegations that they:

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“1. Failed to provide proper instruction to call 911 or go

immediately to the emergency room to the plaintiffs during the first

after-hours phone call on the morning of April 28, 2011;

2. Failed to provide proper instruction to call 911 or go immediately

to the emergency room to the plaintiffs during the second after-hours

phone call on the morning of April 28, 2011;

3. Provided alternative treatment advise [sic] to the plaintiffs during

the first two after-hours phone calls on the morning of April 28

2011;

4. Failed to call 911 for the plaintiff if she believed plaintiffs were

refusing to proceed to the emergency room during the early morning

hours of April 28, 2011;

5. Failed to inform the plaintiffs of the potential risks of not

proceeding to the emergency room during the first after-hours phone

call on the morning of April 28, 2011; and

6. Failed to inform the plaintiffs of the potential risks of not

proceeding to the emergency room during the first after-hours phone

call on the morning of April 28, 2011.”

¶ 92 Defense counsel objected to the issues instruction listing so many allegations, suggesting

that they all amounted to claims that Ploegstra failed to give “proper advice and instruction, and

that’s included in [paragraphs] 1 and 2.”

¶ 93 The court agreed with defense counsel, stating it would “strike paragraph 3, 4, 6, and 7

[sic]” from the proposed instruction” but would keep lines 1 and 2. The court also told plaintiff’s

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counsel “you can amend line 1 and 2 and add the word ‘failed to provide proper instruction and

advice to call 911.’ ”

¶ 94 Plaintiff’s counsel then asked the court if lines 1 and 2 could be revised to say that Ploegstra

“failed to provide proper instruction and advice by failing to instruct them to go to the emergency

room, by providing alternative advice, by failing to inform of their potential life-threatening nature

* * * rather than having them all a separate line item.” The trial court denied that request. In doing

so, it noted there was a “stark black and white difference in the testimony” as to whether Ploegstra

actually told Patrick and Alasin to go to the emergency room.

¶ 95 The jury ultimately received an issues instruction with three claims of negligence, as

follows:

“The plaintiffs claim that they were injured and sustained damage,

and that defendants Wendy Ploegstra, MSN, RN, FNP-BC, and

Lincoln Park Family Physicians were negligent in one or more of

the following respects:

1. Failed to provide proper instruction and advice to the plaintiffs during the first

2. Failed to provide proper instruction and advice to the plaintiffs during the

second after-hours phone call on the morning of April 28, 2011;

3. Failed to call 911 for the plaintiff if she believed plaintiffs were refusing to

proceed to the emergency room during the early morning hours of April 28,

2011.”

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¶ 96 The transcript reflects that, when the court orally read the issues instruction to the jury, it

did not read the word “proper” in line 1. 7 Plaintiff’s counsel did not object during the court’s

reading of this instruction.

¶ 97 The court separately instructed the jury regarding the plaintiff’s burden of proof as follows:

“The plaintiff has the burden of proving each of the

following propositions as to the defendant:

First, that the defendant acted or failed to act in one of the

ways claimed by the plaintiff as stated to you in these instructions

and that in so acting or failing to act, the defendants were negligent.

Second, that the plaintiff was injured.

Third, that the negligence of the defendants was a proximate

cause of the injury to the plaintiff.

If you find from your consideration of all the evidence that

any of these propositions has not been proved, then your verdict

shall be for the defendant. On the other hand, if you find from your

consideration of all the evidence that all these propositions have

been proved as to the defendant, then your verdict shall be for the

plaintiff.”

¶ 98 Jury Question and the Court’s First and Supplemental Answers

¶ 99 During the jury’s deliberations, the jury submitted to the court the following question:

“Does the decision for each of the 3 counts need to be unanimous by the jurors?”

7 During argument on the post-trial motion, the trial court did not concede that it omitted this word and

suggested that the court reporter may have simply missed this word.

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¶ 100 The court asked counsel for their position as to how the question should be answered,

resulting in the following colloquy:

“THE COURT: Okay. So, Plaintiff, how do you suggest that

we answer?

[Plaintiff’s counsel]: That yes, they need to – well, how to –

does the – I’m sorry. Can you re—yes.

No. The decision for each of the three counts does not need

to be unanimous. If they agree on one, they can move forward.

THE COURT: Okay.

[Defense counsel]: the answer is about – a question about the

law. And they say ‘counts.’ I presume they’re referring – I think we

all presume they’re referring to the three issues. I believe that the

appropriate answer to a question of this nature is for the jury to

review the instructions as given and – for the answer. I think at this

--

[Defense counsel]: And that’s my position.

THE COURT: Okay. Thank you.

I’m going to answer the question by stating one

word. Yes.

- 25 - No. 1-22-1043

[Plaintiff’s counsel]: But it’s not each of the three. So I think

that’s misleading. They don’t have to say yes to all three. It’s one or

more and you move on.”

Following this discussion, the court initially responded to the jury question with a written note

stating: “Yes.”

¶ 101 The briefs and the record reflect that the parties’ counsel subsequently approached the court

regarding a supplemental answer to the jury’s question. However, there is no transcript of that

discussion in the record. The court later sent a note to the jury stating:

“The answer to the question about unanimous agreement was

incomplete and could be misinterpreted. The attached instructions,

which you already have, more completely answer the question.”

This supplemental answer attached the previously submitted issues instruction and the instruction

regarding the plaintiff’s burden of proof.

¶ 102 Later that evening, the jury returned a unanimous defense verdict.

¶ 103 Plaintiff’s Post-Trial Motion

¶ 104 Plaintiff filed a post-trial motion in which she argued, inter alia, that (1) the court

erroneously responded to the jury’s question by stating its verdict “had to be unanimous on all

allegations of negligence”; (2) the court “erroneously limited plaintiff’s issue instructions to 3

generic sub-issues”; and (3) the court erroneously entered a directed verdict in favor of Dr.

Tenhundfeld.

¶ 105 In conjunction with the post-trial motion, plaintiff’s counsel submitted an affidavit in which

one of her attorneys, Michael Peterson, attested that after the court’s initial answer to the jury’s

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question, the parties’ counsel “agreed that the Court’ response was inaccurate” and brought the

issue to the court’s attention. According to the affidavit, the court agreed to submit a new answer

but “would not agree to tell the jury that the prior answer was incorrect, only that it ‘may be

misinterpreted’ and that the answer to the question could be found in the ‘burden’ instruction

(21.02.01) and the ‘issues’ instruction (20.01) which were included with the answer and sent back

to the jury.” Peterson further attested that “the attorneys then drafted an answer” that was signed

by the judge and brought to the jury room. According to Peterson’s affidavit, “the Court required

that the attorneys agree on the response to the jury’s question.”

¶ 106 Defendants filed a response to the post-trial motion on June 9, 2022. In conjunction with

plaintiff’s reply, plaintiff submitted an affidavit from one of her attorneys, Stephanie K.

Nathanson, regarding discussions among counsel after the trial court’s initial “Yes” answer to the

jury question. Nathanson attested that one of the defense attorneys, Charles Redden, agreed with

her that the court’s initial answer was erroneous and “that we should re-address the response with

the Court.” Nathanson attested that she “remained in the hallway” while Peterson and Redden

discussed the issue with the judge. 8

¶ 107 On June 29, 2022, the court heard argument on the post-trial motion. During argument,

plaintiff and defense counsel disagreed as to whether the attorneys for both parties had agreed on

the content of the court’s supplemental answer to the jury’s question. The court denied the post-

trial motion.

¶ 108 ANALYSIS

8 On June 15, 2022, plaintiff filed a separate “motion for recusal” alleging that the trial judge was biased against Nathanson, citing several portions of the trial transcript. That recusal motion was denied.

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¶ 109 On appeal, plaintiff asserts distinct claims of errors with respect to (1) the entry of directed

verdict in favor of Dr. Tenhundfeld; (2) the court’s ruling on the content of the issues instruction;

and (3) the court’s response to the jury’s question regarding unanimity. Separately, plaintiff urges

that “[i]f a new trial is granted as to Dr. Tenhundfeld,” a number of purportedly erroneous

evidentiary rulings “should not be repeated.” As discussed below, we find that reversal and remand

for new trial as to all defendants is warranted due to (1) the erroneous entry of directed verdict for

Dr. Tenhundfeld and (2) the court’s erroneous response to the jury’s ambiguous question while it

deliberated the claims against the remaining defendants. We need not address the other claims of

error.

¶ 110 The Court Improperly Granted a Directed Verdict to Dr. Tenhundfeld

¶ 111 We first discuss the propriety of the court’s decision to grant Dr. Tenhundfeld a directed

verdict at the close of plaintiff’s case. “A motion for directed verdict will not be granted unless all

of the evidence so overwhelmingly favors the movant that no contrary verdict based on that

evidence could ever stand.” Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225 (2010). “On

review, all of the evidence must be construed in the light most favorable to the nonmoving party.

[Citation.]” Id. Here, the evidence must be construed in the light most favorable to plaintiff.

¶ 112 “A directed verdict in favor of a defendant is appropriate when the plaintiff has not

established a prima facie case. A plaintiff must present at least some evidence on every essential

element of the cause of action or the defendant is entitled to judgment in his or her favor as a matter

of law. [Citation.]” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 123 (2004). “If the plaintiff fails

to produce a required element of proof in support of her cause of action,” then entry of a directed

verdict for the defendant is proper. Id. On the other hand, a directed verdict “is granted improperly

where there is any evidence, together with reasonable inferences to be drawn therefrom,

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demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses

or the determination regarding conflicting evidence is decisive to the outcome.” (Internal quotation

marks omitted.) Jones v. DHR Cambridge Homes, Inc , 381 Ill. App. 3d 18, 28 (2008). We review

de novo a decision upon a motion for directed verdict. Krywin, 238 Ill. 2d at 225.

¶ 113 Here, the court granted the directed verdict upon finding that plaintiff did not establish a

prima facie case against Dr. Tenhundfeld with respect to the element of proximate causation. For

the following reasons, we find this was error.

¶ 114 “In a negligence medical malpractice case, the burden is on the plaintiff to prove the

following elements of a cause of action: the proper standard of care against which the defendant

physician’s conduct is measured; an unskilled or negligent failure to comply with the applicable

standard; and a resulting injury proximately caused by the physician’s want of skill or care.”

Sullivan, 209 Ill. 2d at 112 (quoting Purtill v. Hess, 111 Ill. 2d 229, 241-42 (1986)).

¶ 115 “Proximate cause in a medical malpractice case must be established by expert testimony

to a reasonable degree of medical certainty. [Citation.]” Susnis ex rel. Susnis v. Radfar, 317 Ill.

App. 3d 817, 826-27 (2000). If a plaintiff fails to prove proximate cause, “the plaintiff has not

sustained the burden of making a prima facie case and a directed verdict is proper. [Citation.]” Id.

“The mere possibility of a causal connection is not sufficient to sustain the burden of proof of

proximate cause. The causal connection must not be contingent, speculative or merely possible.”

Id. at 827; (citing Saxton v. Toole, 240 Ill. App. 3d 204, 210-11 (1992)).

¶ 116 On appeal, plaintiff maintains that the evidence, including Dr. Papernik’s expert testimony,

satisfied each element to support her negligence claim against Dr. Tenhundfeld, including

proximate cause. Plaintiff suggests two ways in which the expert testimony supported negligence

liability.

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¶ 117 Plaintiff’s primary theory is that Dr. Tenhundfeld should have seen Patrick sooner after the

last appointment on April 25, 2011. That is, his next appointment should have been 48 hours later

(April 27) rather than 72 hours later (April 28). Plaintiff urges that, had Dr. Tenhundfeld seen

Patrick on April 27, his bleed would have been discovered and treated in time to prevent his death.

¶ 118 Plaintiff emphasizes Dr. Papernik’s testimony that, had Dr. Tenhundfeld examined Patrick

on April 27, he could have realized that Patrick had signs and symptoms of bleeding. Plaintiff

refers to the following exchange on redirect:

“[Plaintiff’s counsel:] Q. Okay. And when [defense counsel]

says nothing would have changed on 4/27, have you explained to

me all the reasons why 4/27 might have – if it was over 1.5 it would

have caused a stepdown in the Coumadin? Anything else you

believe it would have changed?

A. It’s just another point in time where you can examine

the patient and make sure that no abnormalities are occurring.

Q. Do you believe Pat was bleeding on 4/27?

Q. And do you believe, if he saw Dr. Tenhundfeld on 4/27,

Dr. Tenhundfeld would have realized he had signs and symptoms

of bleeding, or should have realized?

A. Correct.

Q. And that’s why you’re saying it matters.

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Q. So had the bleed been caught before 4/28 at *** 5:40-

something in the morning, it would have been a big difference in

this case, so it does matter, for causation and Pat’s harm. Correct?

A. Correct.”

¶ 119 We find that this expert testimony was sufficient to support this theory of proximate

causation, such that the claim against Dr. Tenhundfeld should have reached the jury. We

acknowledge that the foregoing exchange was the only point at which Dr. Papernik specifically

indicated that a bleed would have been discoverable to Dr. Tenhundfeld on April 27. We also

acknowledge that Dr. Papernik did not describe the particular signs or symptoms of internal

bleeding that he believed Patrick would have exhibited, or precisely when on April 27, 2011 they

would have been noticeable. On this point, defendants urge Dr. Papernik’s testimony did not

demonstrate that Patrick “would have been experiencing articulable signs and symptoms of an

intra-abdominal bleed during a hypothetical encounter with Dr. Tenhundfeld” on April 27, 2011.

While this may be a persuasive argument to a jury weighing the evidence, it does not mean the

question should not have been submitted to the jury in the first place.

¶ 120 Certainly, a jury could find this lack of detail significant in weighing Dr. Papernik’s

causation testimony, especially since the other evidence was unclear as to when Patrick first

experienced symptoms on April 27. 9 Nonetheless, plaintiff elicited clear expert testimony

supporting the theory that Dr. Tenhundfeld’s failure to see Patrick on April 27 proximately caused

his injury. Keeping in mind that the evidence “must be construed in the light most favorable to the

9 Alasin’s testimony indicated that Patrick first reported feeling unwell sometime in the afternoon on April 27, although she was not asked to specify the time of day.

- 31 - No. 1-22-1043

nonmoving party,” Krywin, 238 Ill. 2d at 225, the cited testimony was sufficient to preclude a

directed verdict. That is, plaintiff’s primary theory of negligence against Dr. Tenhundfeld should

have gone to the jury, which should have had an opportunity to accept or reject plaintiff’s expert

testimony along with the other trial evidence. See Bosco v. Janowitz, 358 Ill. App. 3d 450, 459

(2009) (“Where the parties offer conflicting medical testimony regarding the applicable standard

of care and [the] defendant’s breach of that standard, the jury is uniquely qualified to resolve the

conflict.” (Internal quotation marks omitted.)) In other words, directed verdict was improper

because plaintiff elicited “evidence, together with reasonable inferences to be drawn therefrom,

demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses

or the determination regarding conflicting evidence is decisive to the outcome.” (Internal quotation

marks omitted.) Jones, 381 Ill. App. 3d at 28.

¶ 121 Accordingly, we reverse the circuit court, insofar as it granted Dr. Tenhundfeld’s motion

for a directed verdict. 10 We thus remand for a new trial with respect to plaintiff’s negligence claim

against that defendant.

¶ 122 We note that plaintiff’s briefing additionally urges that “[i]f this Court reverses and

remands as to Dr. Tenhundfeld”, we should address certain “prejudicially erroneous evidentiary

rulings” to ensure they are not repeated at a new trial. 11 In so doing, plaintiff essentially asks us to

issue an advisory opinion as to issues that may or may not come up on remand or in a hypothetical

10 Because we find the directed verdict was improper on this basis, we need not consider plaintiff’s alternative argument that Dr. Papernik’s testimony otherwise provided evidence of proximate causation, under the theory that “Dr. Tenhunfeld’s failure to properly counsel Pat and Alasin was shown by their actions.”

11 Specifically, plaintiff suggests that (1) the trial court erred in permitting Dr. Papernik to be cross-examined regarding the protocol of the American Academy of Family Practice for checking INR and that (2) Dr. Tenhundfeld should not have been able to testify that his treatment of Patrick was within the standard of care.

- 32 - No. 1-22-1043

future appeal. “Courts of review will not decide moot or abstract questions * * * and will not render

advisory opinions. [Citation.]” People v. Bass, 2021 IL 125434, ¶ 29. As the defendants’ brief

notes, on remand “the trial court will have an appropriate opportunity to exercise its discretion”

based on the record before it. It is premature to address plaintiff’s evidentiary arguments regarding

proceedings on remand, and thus we decline to address them.

¶ 123 The Trial Court Improperly Responded to the Jury’s Ambiguous Question

¶ 124 We turn to address plaintiff’s argument that the court committed prejudicial error when it

answered “Yes” to the jury’s question: “Does the decision for each of the three counts need to be

unanimous by the jurors?” Notably, at oral argument both parties agreed that the meaning of this

question – specifically the jury’s reference to “the three counts” —was ambiguous.

¶ 125 Plaintiff avers that the “Yes” answer was incorrect because it told the jury that it had to be

unanimous with respect to each of the three ways in which Ploegstra was alleged to be negligent.

That is, plaintiff urges the “Yes” response mislead the jury by suggesting that it could not find in

her favor unless it unanimously found she proved all three of the negligence allegations set forth

in the issues instruction. At oral argument, plaintiff pointed out that this court has now held that

where a medical defendant is alleged to have been negligent in multiple ways, the jury need not

be unanimous as to the precise manner in a which the defendant committed medical negligence in

order to return a plaintiff’s verdict. See Galich v. Advocate Health and Hospital Corp., 2024 IL

App (1st) 230134.

¶ 126 Plaintiff recognizes that the court supplemented the initial answer with a note to the jury

stating that its prior answer was “incomplete and could be misleading” and referring the jury to

the written instructions. However, plaintiff urges this supplemental answer was insufficient to

correct the harm from the original answer. Plaintiff points out that the supplemental answer did

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not tell the jury that the previous answer was incorrect, or to disregard the initial answer. Plaintiff

suggests that given the critical and potentially dispositive nature of the jury’s inquiry about

unanimity, the error caused substantial prejudice.

¶ 127 Defendants’ response on this issue in its brief and at oral argument has been somewhat

contradictory. Defendants’ brief initially suggested that the court’s initial “Yes” answer was

legally correct because the jury’s question the “three counts” likely referred to the three elements

on which plaintiff bore the burden of proof, rather than the three numbered allegations in the issues

instruction. Yet, defendants’ brief elsewhere acknowledges that “the jury could have been asking

about several different concepts” with respect to either the issues or burden instruction, implicitly

admitting that the question was ambiguous. And at oral argument, defendants’ counsel openly

acknowledged that the jury question was ambiguous and that there is no way to know what the

jury was referring to. Counsel also acknowleged that the trial court made no attempt to ascertain

the jury’s actual intent before answering “Yes.”

¶ 128 Nevertheless, defendants urge that the supplemental answer precludes reversal. They

argue that because plaintiff “assisted in the drafting of a curative response” and acquiesced to the

court’s supplemental answer to the jury question, it cannot now assert error with respect to the

court’s response. Defendants otherwise argue that plaintiff cannot show prejudice from any error.

For the following reasons, we find the trial court committed reversible error when it answered

“Yes” to the jury’s question, without making any attempt to clarify what the jury was asking about.

That error was not cured by the supplemental answer.

¶ 129 Generally, determining the propriety of a trial court’s response to a jury question “requires

a two-step analysis.” People v. Leach, 2011 IL App (1st) 090339, ¶ 16. First, we determine

“whether the trial court should have answered the jury’s question” for an abuse of discretion. Id.

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“Second, we must determine whether the trial court’ response to the question was correct,” which

is a question of law. Id.

¶ 130 The parties do not dispute that the jury’s question warranted a response from the trial court.

This is consistent with this court’s recognition that:

“[T]he general rule is that the trial court has a duty to provide

instruction to the jury where it has posed an explicit question or

requested clarification on a point of law * * *. [Citation.] This is true

even though the jury was properly instructed originally. [Citation.]

When a jury makes explicit its difficulties, the court should resolve

them with specificity and accuracy.” Van Winkle v. Owens-Corning

Fiberglass Corp., 291 Ill. App. 3d 165, 172 (1997) (quoting People

v. Childs, 159 Ill. 2d 217, 228-29 (1994)).

¶ 131 We thus turn to the propriety of the trial court’s response. “[W]hen a trial court decides to

answer a jury’s question, it must do so correctly and ‘must not misstate the law.’ ” Leach, 2011 IL

App (1st) 090339, ¶ 15. “The failure to answer or the giving of a response which provides no

answer to the particular question of law posed is prejudicial error.” People v. Allen, 2022 IL App

(1st) 190158, ¶ 22.

¶ 132 The propriety of the trial court’s response to the question is a question of law that is

reviewed de novo. Leach, 2011 IL App (1st) 090339, ¶ 16; see also People v. Hudson, 2023 IL

App (1st) 192519, ¶ 60 (“We review de novo the legal accuracy of the trial court’s answer to juror

questions. [citation.]”).

¶ 133 Given the Undisputed Ambiguity of the Jury Question, The Court’s Initial “Yes” Answer

Was Incomplete and Possibly Misleading

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¶ 134 Given the ambiguity of the jury’s question, we agree with plaintiff that the court’s initial

answer was improper, and may very well have confused the jury on a crucial issue. As the

defendants openly admitted at oral argument, it was entirely unclear what the jury meant when it

asked whether it had to be unanimous on the “three counts.” The jury could have been asking about

either the burden instruction (which specified three elements plaintiff needed to prove) or the

issues instruction (which set forth three ways in which defendants were allegedly negligent).

¶ 135 Significantly, the trial court made no attempt to clarify the meaning of the jury’s question.

This itself was error. See Childs, 159 Ill. 2d at 229 (“If the question asked by the jury is unclear, it

is the court’s duty to seek clarification of it.”). This is remarkable since (as defendants concede)

there were at least two distinct possibilities of what the jury meant when it asked about “three

counts.”

¶ 136 This initial error was compounded by the court’s “Yes” response. That answer potentially

misstated the law and quite easily could have misled the jury on a crucial question that may have

impacted its decision to render a defense verdict.

¶ 137 Defendants urge that the “Yes” answer would be legally correct, if the jury was asking

whether it had to unanimously find (1) negligence, (2) proximate causation and (3) damages to

render a plaintiff’s verdict. Defendants suggest that it is likely that the jury’s question referenced

plaintiff’s burden of proof as to these elements.

¶ 138 Of course, we cannot assume that the jury’s use of the word “counts” referenced the

elements of negligence. We think it is just as (if not more) likely that when the jury asked whether

it needed to be unanimous on “each of the three counts,” it was asking whether it needed to find

that plaintiff proved all three allegations from the issues instruction, i.e., that (1) Ploegstra failed

to give proper advice and instruction in the first after-hours call; (2) she failed to give proper advice

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and instruction in the second call; and (3) that she failed to call 911 “if she believed plaintiffs were

refusing to proceed to the emergency room.” Indeed, it would not be surprising for a jury composed

of laypersons to use the term “counts” when they meant to refer to “allegations.”

¶ 139 If the jury meant to ask whether they needed to be unanimous that plaintiff proved each of

the three allegations to render a plaintiff’s verdict, then the “Yes” answer was plainly legally

incorrect. Defendants do not dispute that, for the plaintiff to be entitled to a verdict, the jury only

needed to find that Ploegstra was negligent in one (or more) of the three ways enumerated in the

issues instruction. See Galich, 2024 IL App (1st) 230134, ¶¶ 55-56 (where doctor was alleged to

be negligent in four ways, “[t]he specific allegations of Dr. Joo’s acts or omissions are not separate

elements of the claim on which the jury must unanimously agree, provided they agree his failure

to meet the standard of care caused [plaintiff’s] injuries. The jury’s verdict indicated they

unanimously agreed Dr. Joo’s negligence caused [plaintiff’s] injury. That is all the law

requires.”). 12 The court’s initial answer was erroneous and prejudicial, to the extent it suggested

that the jury needed to unanimously find that plaintiff had proven not just one, but all three

“counts” of alleged negligence.

¶ 140 Defendants contend that, even assuming the initial “Yes” answer was error, it is not

reversible because plaintiff cannot show that prejudice resulted from that response. We disagree.

The record shows a clear and unacceptable risk that the jury was improperly instructed about a key

question that could very well have impacted the verdict. As already stated, the court is obligated

to (1) seek clarification of an unclear question and (2) it must not misstate the law when it answers

12 We note that Galich also rejected the defense argument that if a medical provider is alleged to be negligent in

multiple ways, the jury must be unanimous as to the specific way in which defendant was negligent, rather than reaching a verdict by “ ‘mix[ing] and match[ing]’ negligence allegations to reach a patchwork consensus”. 2024 IL App (1st) 230134, ¶¶ 43-45.

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the question. Largely due to the court’s failure to seek clarification of what the jury meant when it

referred to the “three counts”, the court’s subsequent “Yes” answer could very well have misled

the jury into believing that it could not find for plaintiff unless they unanimously found that all

three enumerated allegations were proven. The jury could have been led to believe the plaintiff

needed to convince them that defendants were negligent in all three enumerated ways, in order to

render a verdict for her. Certainly, the jury’s misapprehension on this point could have led them

to render a defense verdict (if, for example, they concluded plaintiff had proven one or two of the

enumerated allegations but erroneously believed they needed to be unanimous as to all three

“counts” of negligence). Under these circumstances, the error was prejudicial.

¶ 141 Plaintiff’s Agreement to the Supplemental Answer Did Not Preclude Her Claim of Error

Regarding the Initial Answer

¶ 142 Our analysis cannot end there, however, since the court supplemented its initial “Yes”

answer to the jury’s question after meeting with the parties’ counsel. Specifically, the court told

the jury: “The answer to the question about unanimous agreement was incomplete and could be

misleading. The attached instruction, which you already have, more completely answer the

question.” As part of the supplemental response, the jury again received the written issues and

burden instruction.

¶ 143 Defendants argue that plaintiff’s “silence and/or acts of acquiescence” to the supplemental

answer bars her from challenging the initial “Yes” answer. We disagree.

¶ 144 We recognize that: “Generally, when a party consents to a trial court’s answer to a jury

question, that party cannot later argue that the trial court’s answer was an abuse of discretion.”

Cipolla v. Village of Oak Lawn, 2015 IL App (1st) 132228, ¶ 29 (citing People v. Averett, 237 Ill.

2d 1, 24 (2010) (“When a defendant acquiesces in the trial court’s answer to a question from the

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jury, the defendant cannot later complain that the trial court’s answer was an abuse of discretion.

[Citation.]”).

¶ 145 The record does not show that plaintiff contemporaneously objected to the supplemental

answer. 13 Plaintiff’s post-trial briefing reflects that the parties jointly drafted the supplemental

answer. However, even assuming plaintiff acquiesced to the contents of the supplemental answer,

we do not find it acts as a waiver to her claim of error that she was already prejudiced by the

court’s initial answer to the jury’s question, and that supplemental answer was insufficient to cure

it. That is, we do not equate her apparent agreement with the supplemental response as a waiver

of her right to challenge the previous erroneous response. It would be unjust to do so. Quite

understandably, her counsel (with defense counsel’s participation) urged the trial court to address

the erroneous initial response through a supplemental response, all while the jury continued its

deliberations. We will not penalize her on appeal by deeming her counsel’s attempt to cure the

initial answer with a supplemental answer as a waiver of her right to raise the error in this court.

¶ 146 The Supplemental Answer Did Not Cure the Prejudice from the Initial Answer

¶ 147 Regardless of whether plaintiff acquiesced to the supplemental answer, we agree with

plaintiff that it was insufficient to cure the prejudice resulting from the court’s initial erroneous

“Yes” answer. Indeed, the supplemental answer very well could have exacerbated the confusion

from the initial answer.

¶ 148 As plaintiff notes, the supplemental answer did not advise the jury that the court’s initial

“Yes” answer was incorrect. Nor did it tell the jury to simply disregard the prior answer, which

13 There is no transcript of the discussion between the parties’ counsel and the court as to the content of the

supplemental answer. Nor does the common law record suggest that plaintiff proposed any written alternative supplemental answer for the court’s consideration.

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could have more succinctly put the issue to rest. Instead, the supplemental answer stated that the

court’s initial answer “was incomplete and could be misleading” before directing the jury to the

previously-submitted written instructions. We disagree with defendants’ suggestion that the

supplemental response corrected any pre-existing error. Indeed, the supplemental answer could

have raised additional questions in the jury’s mind as to how the prior “Yes” answer was

“incomplete” or “misleading.” Moreover, the supplemental answer gave no substantive guidance

to the jury but simply referred them back to the original written instructions, which the jury already

had before they asked the question about unanimity. In this regard, the supplemental answer did

not actually address the confusion indicated by the question in the first place.

¶ 149 In summary, we agree with plaintiff that the initial answer to the jury’s ambiguous question

was prejudicial error, which was not cured by the supplemental answer. Accordingly, we reverse

the verdicts in favor of Lincoln Park Family Physicians and Ploegstra and remand for new trial.

¶ 150 As we reverse the verdicts in favor of those defendants and remand for a new trial on this

basis, we need not additionally discuss plaintiff’s claim that the trial court erred in limiting the

content of the issues instruction.

¶ 151 Finally, we conclude that the new trial should proceed before a different trial judge to guard

against potential claims of bias on remand. We acknowledge that plaintiff did not ask for that

specific relief in this appeal. However, the record makes clear that the relationship between the

trial judge and plaintiff’s lead trial attorney, Stephanie Nathanson, deteriorated significantly over

the course of the trial through several negative interactions. During one sidebar, Nathanson

complained that the judge had made “personal insults” and “attacks” on her throughout the trial,

including remarks off the record. The trial judge denied Nathanson’s characterization, but

elsewhere told Nathanson that she was “behav[ing] unprofessionally” and “hurting your client’s

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case.” Such interactions prompted plaintiff to file a post-trial motion requesting that the judge

recuse herself from further proceedings in this case, which request was denied. Moreover, the

record reflects that days after the jury verdict in this case, the trial judge recused herself in another

case where Nathanson was attorney of record, Castle v. Vitello et al., No. 17 L 3136, shortly after

Nathanson notified the court that she would seek substitution of judge in that matter.

¶ 152 To be clear, we do not suggest that the trial court’s interactions with Nathanson reflected

any actual bias by the trial judge that affected its rulings in the case. However, to avoid even the

appearance of potential bias in future proceedings, we believe the best course of action is for a

different trial judge to preside over proceedings on remand.

¶ 153 CONCLUSION

¶ 154 In summary, we first find that the directed verdict was improperly granted in favor of Dr.

Tenhundfeld. Thus, plaintiff is entitled to reversal and retrial of her negligence claims against that

defendant.

¶ 155 Retrial is also warranted with respect to plaintiff’s claims against Lincoln Park Family

Physicians and Ploegstra, due to the court’s error in responding to the jury’s ambiguous question

while it deliberated the claims against those two defendants. Accordingly, we reverse and remand

for a new trial with respect to all three defendants. A different trial judge should preside over

proceedings on remand.

¶ 156 Reversed and remanded with directions.

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