NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 220201-U
Order filed November 8, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
DIJANA RIS, ) Appeal from the Circuit Court ) of the 18th Judicial Circuit, Plaintiff-Appellant, ) Du Page County, Illinois. ) v. ) ) ADVOCATE HEALTH AND HOSPITALS ) CORPORATION d/b/a ADVOCATE GOOD ) Appeal No. 3-22-0201 SAMARITAN HOSPITAL, a corporation; LI ) Circuit No. 16-L-613 ZHANG, M.D., S.C., a corporation; and LI ) ZHANG, M.D., ) ) Defendants ) ) The Honorable (Advocate Health and Hospitals Corporation, ) David E. Schwartz, Defendant-Appellee). ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HETTEL delivered the judgment of the court. Presiding Justice Holdridge and Justice McDade concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Jury’s verdict in favor of hospital in medical malpractice action was neither inconsistent with special interrogatory nor against the manifest weight of the evidence where evidence was presented at trial that the physician liable for plaintiff’s injuries was not an agent of the hospital when she committed malpractice. ¶2 Plaintiff Dijana Ris filed a medical malpractice complaint against defendant Dr. Li Zhang,
Zhang’s medical corporation and defendant Advocate Health and Hospitals Corp (Advocate), d/b/a
Advocate Good Samaritan Hospital (Good Samaritan). During trial, the court entered an order
voluntarily dismissing Dr. Zhang’s medical corporation as a defendant. Following trial, the jury
found Dr. Zhang liable and Advocate not liable for plaintiff’s injuries. Plaintiff filed a motion for
a new trial or judgment notwithstanding the verdict, which the trial court denied. Plaintiff appeals,
arguing that the jury’s verdict should be set aside because it was (1) inconsistent with the jury’s
answer to a special interrogatory, and (2) against the manifest weight of the evidence. We affirm.
¶3 BACKGROUND
¶4 On August 25, 2009, plaintiff Dijana Ris went to the emergency room of Good Samaritan
complaining of severe headaches. She was admitted to the hospital and seen by Dr. Steven Beltran,
an internal medicine physician. Dr. Beltran ordered testing, including magnetic resonance imaging
(MRI) of plaintiff’s brain. According to the MRI report, completed by Dr. James Scheuer, an
“abnormal signal” or “mass” was present in the right anterior frontal lobe of plaintiff’s brain, which
could possibly be a “nonenhancing slow-growing glioma.” A glioma is a brain tumor.
¶5 Dr. Beltran sought a consultation from defendant Dr. Li Zhang, a neurologist. Dr. Zhang
performed a neurological exam of plaintiff and reviewed plaintiff’s MRI. Dr. Zhang determined
that the “abnormal signal” or “mass” identified in the MRI was most likely scar tissue from an old
head injury. Dr. Zhang instructed plaintiff to follow up with her for a repeat MRI in three months.
¶6 A second MRI of plaintiff was performed in December 2009. Dr. Siddiqi, the radiologist
who interpreted the MRI, recommended that “if no intervention is planned at this time, a follow
up should be obtained in six months to exclude a low-grade glioma.” Dr. Zhang did not order any
intervention, such as a biopsy, or a follow-up MRI.
2 ¶7 Plaintiff did not have another MRI until July 2014, after she hit her head at work. Dr.
Siddiqi interpreted that MRI and found “diffuse abnormality” throughout plaintiff’s brain. He
determined that the abnormal signal in plaintiff’s brain “has significantly progressed since
December 2009 where it was localized to the right frontal lobe.” Because of the presence of tumors
throughout plaintiff’s brain, the only treatment option was whole-brain radiation. Plaintiff
underwent five weeks of whole-brain radiation in 2014.
¶8 In July 2016, plaintiff filed a complaint against Dr. Zhang, her medical corporation and
Advocate. Plaintiff alleged medical negligence and lack of informed consent against Dr. Zhang,
her corporation and Advocate, alleging that Dr. Zhang was an agent of Advocate. A jury trial was
held over 10 days in June 2021.
¶9 Dr. Zhang testified that when she treated plaintiff, she had a private neurology practice
located in Lisle where she saw patients. After first seeing plaintiff at Good Samaritan in August
2009, Dr. Zhang saw plaintiff every time thereafter at her office in Lisle. When Dr. Zhang saw
plaintiff at Good Samaritan in 2009, Dr. Zhang was wearing a lab coat and an identification badge,
which both contained her name and the Advocate logo. Dr. Zhang testified that she had seen
plaintiff at the hospital before August 2009, because plaintiff worked there.
¶ 10 Dr. Zhang testified that Advocate gave her a plaque in 2009 for being an “Exemplary
Physician,” which Dr. Zhang hung in the waiting room of her practice. At Good Samaritan, a
photograph of Dr. Zhang, as well as awards she had won are displayed in a hallway. In April 2010,
Dr. Zhang received a “Physician Recognition Winner” award from Good Samaritan, which
contains Good Samaritan’s name and corporate logo. That award was initially hung at the hospital,
but after a few months, the hospital provided it to Dr. Zhang, who hung it in the waiting room of
3 her practice. In 2012, Good Samaritan gave Dr. Zhang a clock with Good Samaritan’s name and
corporate logo on it. Dr. Zhang’s staff hung the clock in the waiting room of her practice.
¶ 11 Dr. Zhang testified that she saw plaintiff at her private neurology practice on January 5,
2010, following plaintiff’s December 2009 MRI. Dr. Zhang said, based on her custom and practice,
she would have reviewed the MRI and report with plaintiff, but Dr. Zhang did not remember the
conversation she had with plaintiff. Dr. Zhang testified that plaintiff’s second MRI “reassured”
her that the abnormal findings were consistent with a prior head injury and not a tumor.
¶ 12 Dr. Zhang agreed she was not employing a “watchful waiting” strategy with plaintiff. If
she had been, she would have ordered additional MRIs. Dr. Zhang saw plaintiff in her office in
Lisle several times a year from 2010 to 2014. Dr. Zhang treated plaintiff with medication for
migraines. Dr. Zhang testified that she “never thought [plaintiff] had glioma.” Dr. Zhang testified
that if she suspected plaintiff had glioma, she would have referred her to a neurosurgeon. Dr. Zhang
agreed that the standard of care required her to refer a patient with suspected glioma to a
neurosurgeon.
¶ 13 At trial, plaintiff presented the testimony of three experts in various fields of neurology:
Dr. Steven Arkin, a neurologist; Dr. Manesh Aghi, a neurosurgeon; and Dr. Tracy Batchelor, a
neuro-oncologist. All three agreed that plaintiff’s August and December 2009 MRIs showed a
brain tumor that was confined to her right frontal lobe. All three experts also agreed that if Dr.
Zhang had identified and treated the tumor in a timely manner, it would not have spread outside
plaintiff’s right frontal lobe, and whole-brain radiation, which caused plaintiff neurocognitive
deficits, would have been unnecessary.
¶ 14 Dr. Arkin testified that Dr. Zhang deviated from the standard of care by failing to (1)
recognize the possible existence of a tumor; (2) discuss with plaintiff the differential diagnosis
4 contained in the 2009 MRI reports; (3) refer plaintiff to a neurosurgeon from 2009 to 2014; and/or
(4) perform “serial surveillance on the lesion.” Dr. Arkin opined that Dr. Zhang’s failure to
properly diagnose and treat plaintiff allowed plaintiff’s tumor to grow outside the right frontal lobe
and into other areas of plaintiff’s brain.
¶ 15 Dr. Aghi testified that a neurosurgeon complying with the standard of care would do one
of three things: (1) perform a surgical resection, (2) perform a biopsy, or (3) follow a “watching
and waiting” approach. Dr. Aghi testified that a “watching and waiting” strategy “requires far more
imaging than what occurred in this particular case.” “Watching and waiting” requires repeat MRIs
at “tight intervals” of six months or less. He testified that “no watching and waiting was done” in
this case. Dr. Aghi agreed that if left untreated, glioma will spread and invade other areas of the
brain, which is what happened to plaintiff. Dr. Aghi believed plaintiff’s tumor was “amenable to
surgical resection” in 2009 and early 2010. Dr. Aghi agreed “there was no harm done to [plaintiff]
from August to December [2009], based on the MRI images and her options as of December or
January of 2010.” Dr. Aghi concluded that the delay in diagnosing and treating plaintiff’s brain
tumor caused plaintiff’s neurocognitive dysfunction and shortened her life expectancy.
¶ 16 Dr. Batchelor testified that the standard of care for a neuro-oncologist with a patient who
had an MRI like plaintiff’s in August 2009 required referral to a neurosurgeon. In his opinion, the
“most likely diagnosis” based on plaintiff’s August 2009 MRI was a tumor. Based on the
appearance of plaintiff’s tumor in August 2009, Dr. Batchelor would have recommended “at a
minimum a biopsy, if not a resection.” Based on the results of the biopsy, he would have expected
“a gross total resection” to be performed. Such a procedure would have prevented plaintiff’s tumor
from growing and extending to multiple areas of the brain. Dr. Batchelor testified that “a lack of
treatment between 2009 and 2014” led to the growth of plaintiff’s tumor, causing it to infiltrate
5 multiple lobes of the brain. Dr. Batchelor admitted that if plaintiff’s tumor had been surgically
resected, plaintiff would likely have a recurrence sometime during her lifetime but that upon
recurrence, plaintiff would be treated with focal radiation, which has “[f]ar less risk” than whole-
brain radiation.
¶ 17 Dr. Gregg Zoarski, a neuroradiologist, testified that an “abnormal signal” was present in
the right frontal area of plaintiff’s brain based on the August 2009 MRI. Dr. Zoarski opined that
the tumor was contained to plaintiff’s right frontal lobe based on plaintiff’s August and December
2009 MRIs. Dr. Zoarski testified that, based on plaintiff’s 2014 MRI, tumors had spread
throughout plaintiff’s brain to the left and right parietal lobes, left and right temporal lobes and left
and right occipital lobes.
¶ 18 Plaintiff also presented the testimony of Dr. Nancy Landre, a neuropsychologist. She
testified that it is common for patients who have undergone whole-brain radiation to have cognitive
symptoms affecting thinking, memory, processing speed, and executive functions. Dr. Landre
administered several tests to plaintiff in 2017 and 2020, which showed plaintiff was “mildly
impaired” in psychomotor speed, “moderately impaired” in mental flexibility, and “significantly
impaired” in non-verbal problem solving, encoding new information, and memory. Dr. Landre
concluded that plaintiff “demonstrated consistent evidence of memory impairment.” Dr. Landre
opined that plaintiff suffered cognitive injuries because of whole-brain radiation that are
“permanent” and will worsen as she ages.
¶ 19 Plaintiff’s son, Slavisa Ris, was 25 years old at the time of trial. He testified that he lives
with plaintiff. Prior to 2014, plaintiff was independent and took care of the household herself.
Now, Slavisa takes care of the household finances because plaintiff “forgets sometimes what bills
she’s paid.” He testified that plaintiff suffers from “short-term memory problems.” Slavisa is
6 uncomfortable with plaintiff being home alone because of her memory problems. He testified that
plaintiff does not go anywhere alone because “she can’t drive, she gets dizzy, [and] her
concentration is bad.”
¶ 20 Plaintiff’s sister, Marjana Balic, testified that she and plaintiff began working at Good
Samaritan in May 2009. Marjana testified that plaintiff has experienced “a lot of memory
problems” since her whole-brain radiation. Plaintiff spends very little time home alone because
Marjana feels “it’s not safe to leave her home alone.” Plaintiff has suffered falls and forgotten to
take her medication.
¶ 21 Plaintiff testified that she came to the United States from Bosnia in 2003, with her son and
husband. At that time, she spoke no English. She began working at Kohl’s in 2004, where she
learned English. In 2009, she obtained a second job at Good Samaritan. When she was hired at
Good Samaritan, she was given a badge with Advocate’s logo, her photo and her name. She was
required to wear her badge whenever she was working. When she was working at Good Samaritan,
plaintiff saw a picture of Dr. Zhang on the wall. Plaintiff also reported seeing Dr. Zhang “every
time” she worked at Good Samaritan and often heard Dr. Zhang being paged.
¶ 22 When plaintiff went to the emergency room at Good Samaritan on August 25, 2009, she
was not a patient of Dr. Zhang’s. Plaintiff did not ask to see Dr. Zhang. When plaintiff saw Dr.
Zhang in the hospital, Dr. Zhang wore a coat with the Advocate logo on it and had a badge, like
hers, with the Advocate logo on it. Dr. Zhang never told plaintiff she was not an employee of Good
Samaritan. Plaintiff testified that she believed Dr. Zhang was an employee of Good Samaritan
from 2009 to 2014. Plaintiff testified that when she went to Dr. Zhang’s office in Lisle she saw
“stuff *** with Advocate’s logo” and “a lot of stuff *** from Advocate.” She specifically
remembered seeing a clock with Advocate’s name and logo on it.
7 ¶ 23 Plaintiff agreed that when she went to Good Samaritan on August 25, 2009, she signed a
consent form containing the following language:
“I acknowledge and fully understand that some or all of the physicians who provide
medical services to me at the hospital are not employees or agents of the hospital, but rather
independent practitioners on the hospital medical staff who are permitted to use the hospital
facilities to render medical care and treatment. Non-employed physicians may include but
are not limited to those practicing emergency medicine, trauma, cardiology, obstetrics,
surgery, radiology, anesthesia, pathology and other specialties. Your decision to seek
medical care is not based on any understanding, representation, advertising, implications,
or inferences that the physicians who are treating you are actual employees or agents of the
hospital.”
Plaintiff testified she did not read the form before signing it. Plaintiff did not dispute that she
signed six other consent forms from November 8, 2003, to June 25, 2009, containing the same
language, but she claimed she never read them.
¶ 24 When plaintiff went to Dr. Zhang’s office in January 2010, she brought an electronic copy
of her December 2009 MRI. Plaintiff looked at the images with Dr. Zhang but did not understand
them. Dr. Zhang did not show her the MRI report and did not tell her that the radiologist
recommended she have a repeat MRI in six months. Plaintiff said Dr. Zhang told her she did not
have cancer or a tumor but had “chronic migraines” and treated her for those. Dr. Zhang never
mentioned plaintiff having another MRI after December 2009.
¶ 25 Plaintiff continued to work at Good Samaritan until 2014, and repeatedly saw Dr. Zhang
at the hospital wearing her badge and lab coat. Plaintiff talked to Dr. Zhang in the hallways about
her health problems. When plaintiff underwent whole-brain radiation in 2014, she said she had
8 “[n]o energy,” felt weak, was “nauseous all the time”, and could barely walk. Plaintiff testified she
no longer works, never leaves the house alone, and has to rely on others.
¶ 26 Dr. Keith Schaible, a neurosurgeon, testified he performed a biopsy on plaintiff’s brain
tumor on August 1, 2014. Dr. Schaible testified that surgery was not an option for plaintiff in 2014
because the tumor “involved areas of the brain that were not accessible to surgery without
significant risk in terms of neurological function.”
¶ 27 After plaintiff’s witnesses testified, Dr. Zhang and Advocate filed motions for a directed
verdict, which the trial court denied. Plaintiff orally moved that Dr. Zhang’s medical corporation
be voluntarily dismissed from the action. The trial court granted that motion and entered an order
voluntarily dismissing Li Zhang, M.D., S.C. as a defendant.
¶ 28 Dr. Zhang and Advocate presented the testimony of several experts: Dr. Terence Roberts,
a radiation oncologist; Dr. Joel Meyer, a neuroradiologist; Dr. Herbert Engelhard, a neurosurgeon;
and Dr. Martin Kelly Nicholas, a neuro-oncologist. They all testified that plaintiff’s August 2009
and December 2009 MRIs were essentially the same and did not show a single tumor contained in
the right frontal lobe but showed “gliomatis cerebri,” tumor cells spread throughout plaintiff’s
brain.
¶ 29 Dr. Roberts testified that “it is not possible” that plaintiff’s tumor was localized to one lobe
in 2009 based on the presence of tumors in many other lobes in 2014. He testified that surgical
intervention in 2009 would not have changed the outcome for plaintiff because it “would have
only treated a portion of her tumor.” He opined that if the tumor in the right frontal lobe had been
removed in 2009, other tumors would have appeared and required whole-brain radiation. Dr.
Roberts testified that the five-year delay, from 2009 to 2014, in identifying and treating plaintiff’s
9 brain tumor did not alter plaintiff’s outcome, change her treatment, or change her “overall survival
chances.”
¶ 30 Dr. Meyer testified that plaintiff’s MRI from August 2009 showed “abnormalities outside
the right frontal lobe.” He opined that in 2009, plaintiff’s tumor was “[n]ot amenable to be taken
out” because it was in multiple areas of her brain. He further opined that Dr. Zhang’s delay in
diagnosing plaintiff’s tumor did not cause any harm to plaintiff because “she has a very bad
diagnosis, and if it were me, I wouldn’t want to know about it until I absolutely had to because it’s
noncurable.” He agreed that “[m]ore likely than not” plaintiff suffered injury from whole-brain
radiation because she “suffered brain volume loss,” which means her brain shrunk.
¶ 31 Dr. Engelhard testified that the standard of care did not require a biopsy or surgical
resection of plaintiff’s tumor in 2009. Dr. Engelhard opined that observation or “watchful waiting”
was a reasonable course of action at that time. He agreed that watchful waiting required “serial
MRI scans” every three to twelve months. He testified that “an aggressive surgical resection” in
2009 would not have cured plaintiff because it would not have removed all the tumor cells. He
testified that plaintiff’s 2009 MRIs showed that “[t]his is not a curable tumor.” Dr. Engelhard
opined that aggressive resection in 2009 or 2010 would not have altered plaintiff’s outcome
because plaintiff “would have winded up needing radiation therapy and chemotherapy anyway.”
¶ 32 Dr. Nicholas agreed that observation, biopsy and resection surgery are all reasonable
options for someone who presented like plaintiff with low-grade glioma in 2009. He explained
that surgical resection does not cure a patient like plaintiff because “there will be cells left behind”
that will grow. Dr. Nicholas opined that Dr. Zhang violated the standard of care “when she failed
to follow up on the MRI scans” but did not violate the standard of care in any other way.
10 ¶ 33 Prior to deliberations, the jury was given an instruction about apparent agency, which
stated:
“Under certain circumstances, the liability of a party may arise from an act or
omission of that party’s apparent agent.
In the present case, Plaintiff, Dijana Ris has sued Defendant, Advocate *** as the
principal and Defendant, Li Zhang, M.D. as its apparent agent. Defendant, Advocate ***
denies that any apparent agency existed.
In order for an apparent agency relationship to have existed, Plaintiff Dijana Ris
must prove the following:
First, that Defendant, Advocate *** held itself out as a provider of complete
medical care and that Plaintiff Dijana Ris neither knew or should have known that the
defendant, Li Zhang, M.D. was not an agent or employee of Defendant, Advocate ***.
Second, that Plaintiff Dijana Ris did not choose Defendant, Li Zhang, but relied
upon Defendant, Advocate *** to provide complete medical care.
If you find that Defendant, Li Zhang, M.D. was the apparent agent of Defendant,
Advocate *** at the time of the occurrence, and that if you find that Defendant Li Zhang,
M.D. is liable, then both Defendant, Advocate *** and Defendant Li Zhang, M.D. are liable
for the acts of Defendant Li Zhang, M.D.
If you find that Defendant, Li Zhang, M.D. is not liable, then neither Defendant
Advocate *** nor Defendant, Li Zhang, M.D. are liable ***.
If you find that Defendant, Li Zhang, M.D. is liable, but that she was not the
apparent agent of Defendant, Advocate *** at the time of the occurrence, then Defendant,
Advocate *** is not liable for the acts of Defendant, Li Zhang, M.D.”
11 ¶ 34 Over plaintiff’s objection, Advocate tendered two special interrogatories to the court,
which the court submitted to the jury: (1) “Was Li Zhang, M.D. the apparent agent of Advocate
*** in 2009?”; and (2) “Was Li Zhang, M.D. the apparent agent of Advocate *** from 2010
through 2014?”
¶ 35 During deliberations, the jury presented the court with several written questions: (1) “What
is the time of occurrence on pg. 18 [the agency instruction]?”; (2) “Can you define apparent
agency?”; and (3) “Can we mark yes for a Special Interrogatory but no for Advocate on Verdict
Form A?” Following each question, the court instructed the jury in full or in part: “You have
received the jury instructions. Please continue to deliberate.”
¶ 36 The jury found Dr. Zhang liable and Advocate not liable and determined plaintiff’s
damages to be $3,350,000. With respect to the special interrogatories, the jury responded “Yes” to
the first and “No” to the second.
¶ 37 Dr. Zhang and plaintiff both filed posttrial motions asserting that the special interrogatories
were confusing and inconsistent with the general verdict. Dr. Zhang sought a new trial, and
plaintiff sought judgment against Advocate or, alternatively, a new trial. The trial court denied the
motions.
¶ 38 ANALYSIS
¶ 39 I.
¶ 40 Plaintiff first argues that the trial court’s verdict in favor of Advocate on liability is
inconsistent with the jury’s answer to the first special interrogatory because the jury found that Dr.
Zhang was the apparent agent of Advocate in 2009 and yet found Advocate not liable for plaintiff’s
injuries.
12 ¶ 41 “A special interrogatory is a question posed to the jury for its consideration during
deliberations that supplements its consideration of the case.” Inman v. Howe Freightways, Inc.,
2019 IL App (1st) 172459, ¶ 117. “A special interrogatory serves ‘as guardian of the integrity of a
general verdict in a civil trial.’ ” Simmons v. Garces, 198 Ill. 2d 541, 555 (2002)
(quoting O'Connell v. City of Chicago, 285 Ill. App. 3d 459, 460 (1996)).
¶ 42 “A special interrogatory is in proper form if (1) it relates to an ultimate issue of fact upon
which the rights of the parties depend, and (2) an answer responsive thereto is inconsistent with
some general verdict that might be returned.” Id. “If a special interrogatory does not cover all the
issues submitted to the jury and a ‘reasonable hypothesis’ exists that allows the special finding to
be construed consistently with the general verdict, they are not ‘absolutely irreconcilable’ and the
special finding will not control.” Id. “In determining whether answers to special interrogatories are
inconsistent with a general verdict, all reasonable presumptions are exercised in favor of the
general verdict.” Id. A reviewing court determines, as a matter of law, if the jury’s answer to a
special interrogatory is inconsistent with a general verdict. McCutchen v. Bigler, 101 Ill. App. 3d
696, 697 (1981).
¶ 43 When the general verdict and the answer to the special interrogatory are not “clearly and
absolutely irreconcilable,” the trial court should enter judgment in accordance with the general
verdict. See Stanphill v. Ortberg, 2017 IL App (2d) 161086, ¶ 29 (citing Simmons, 198 Ill. 2d at
556). Additionally, when a special interrogatory is not in proper form, it will not control. See id.
¶ 33. Courts are reluctant to set aside a general verdict “unless the special findings exclude every
reasonable hypothesis consistent with the general verdict.” Patur v. Aetna Life & Casualty, 90 Ill.
App. 3d 464, 468 (1980).
13 ¶ 44 In this case, plaintiff alleged that Advocate was liable for her injuries based on the doctrine
of apparent agency or apparent authority. Under this doctrine, a hospital can be held vicariously
liable for the negligent acts of a physician providing care at the hospital even if the physician is an
independent contractor unless the patient knows or should have known that the physician is an
independent contractor. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 524 (1993). For
a hospital to be liable under the doctrine, the plaintiff must show (1) the hospital held the physician
out as having authority or knowingly acquiesced in the physician’s exercise of authority; (2) based
on the acts of the principal and agent, the third person reasonably concluded that an agency
relationship existed; and (3) the third person relied on the physician’s apparent authority to his
detriment. See id. Whether a physician is an apparent agent of a hospital is a question of fact. See
id. at 524.
¶ 45 Here, the jury’s answer to the first special interrogatory is not “clearly and absolutely
irreconcilable” with its general verdict in favor of Advocate. The jury could have found that Dr.
Zhang was an apparent agent of Advocate in 2009, but was not guilty of negligence and/or did not
cause an injury to plaintiff until 2010 or thereafter, when she was no longer an apparent agent of
Advocate. That conclusion is supported by the testimony of defendants’ experts, Dr. Nicholas and
Dr. Engelhard, who opined that Dr. Zhang did not breach the standard of care until she failed to
obtain serial imaging of plaintiff in 2010 and thereafter, as well as plaintiff’s own expert, Dr. Aghi,
who testified “there was no harm done” to plaintiff by Dr. Zhang in 2009, when the jury found Dr.
Zhang was the apparent agent of Advocate. Because the jury’s answer to the special interrogatory
and its general verdict were not “clearly and absolutely irreconcilable,” the jury’s verdict must
stand. See Stanphill, 2017 IL App (2d) 161086, ¶ 29.
14 ¶ 46 Plaintiff argues, however, that the general verdict rule requires us to find that the general
verdict in favor of plaintiff and the jury’s answer to the special interrogatory were irreconcilable.
The Illinois legislature codified the general verdict rule as follows:
“If several grounds of recovery are pleaded in support of the same claim, in
the same or different counts, an entire verdict rendered for that claim shall not be
set aside or reversed for the reason that any ground is defective, if one or more of
the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside or
reversed for the reason that the evidence in support of any ground is insufficient to
sustain a recovery thereon, unless before the case was submitted to the jury a motion
was made to withdraw that ground from the jury on account of insufficient evidence
and it appears that the denial of the motion was prejudicial.” 735 ILCS 5/2-1201(d)
(West 2020).
By enacting this rule, “the legislature clearly prioritized the upholding of jury verdicts, wherever
possible ***.” Wright-Young v. Chicago State University, 2019 IL App (1st) 181073, ¶ 108. “This
is a priority long shared by courts.” Id. The general verdict rule is designed to operate as a shield,
not a sword. See Dowling v. Finley Associates, Inc., 727 A.2d 1245, 1252 n.8 (Conn. 1999).
¶ 47 We reject plaintiff’s contention that we should employ the general verdict rule against
Advocate in this case by presuming that the jury found against Dr. Zhang on all counts of plaintiff’s
complaint. Such a presumption runs contrary to the purpose of the rule, which is to uphold jury
verdicts whenever possible. See Wright-Young, 2019 IL App (1st) 181073, ¶ 108. Furthermore,
while the jury entered a general verdict in favor of plaintiff and against Dr. Zhang, the jury also
entered a general verdict in favor of Advocate. Interpreting the general verdict as plaintiff suggests
15 would nullify the jury’s verdict in favor of Advocate. Because the purpose of the rule is to uphold
jury verdicts, we decline to read the general verdict rule as plaintiff suggests.
¶ 48 Moreover, plaintiff forfeited her claim that the jury’s answer to the special interrogatory
and general verdict in favor of Advocate were inconsistent by failing to object before the jury was
discharged. The Code of Civil Procedure (Code) states: “When any special finding of fact is
inconsistent with the general verdict, the court shall direct the jury to further consider its answers
and verdict.” 735 ILCS 5/2-1108 (West 2020). If a party believes a special interrogatory and
general verdict are inconsistent, the party must object as soon as the jury returns its verdict and
answer. See Strauss v. Stratojac Corp., 810 F.2d 679, 682-83 (7th Cir. 1987) (analyzing section
of Federal Code of Civil Procedure nearly identical to section 2-1108 of the Code). A party’s
failure to object while the jury is still present in the courtroom results in the party’s forfeiture of
an objection to an alleged inconsistency between the special interrogatory and the general verdict.
See id. at 683; Team Contractors, L.L.C. v. Waypoint Nola, L.L.C., 976 F.3d 509, 515 (5th Cir.
2020); DiBella v. Hopkins, 403 F.3d 102, 117 (2d Cir. 2005); Howard v. Antilla, 294 F.3d 244,
250 (1st Cir. 2002). Because plaintiff failed to assert that the jury’s answer to the special
interrogatory and verdict were inconsistent while the jury was still empaneled, she forfeited that
argument.
¶ 49 II.
¶ 50 Plaintiff also contends that the jury’s verdict in favor of Advocate cannot stand because it
was against the manifest weight of the evidence.
¶ 51 A reviewing court will reverse a jury verdict only if it is against the manifest weight of the
evidence. Snelson v. Kamm, 204 Ill. 2d 1, 35 (2003). A verdict is against the manifest weight of
the evidence where the opposite conclusion is clearly evident or where the findings of the jury are
16 unreasonable, arbitrary, and not based upon any of the evidence. Id. It is well established that the
reviewing court may not simply reweigh the evidence and substitute its judgment for that of the
jury. Id. Furthermore, the weight to be assigned to an expert opinion is for the jury to determine in
light of the expert's credentials and the factual basis of his opinion. Wiegman v. Hitch-Inn Post of
Libertyville, Inc., 308 Ill. App. 3d 789, 799 (1999).
¶ 52 In a medical malpractice case where there has been opposing testimony among experts, it
is inappropriate for a reviewing court to overturn the jury’s verdict if it is supported by any
evidence presented at the trial. See Eid v. Loyola University Medical Center, 2017 IL App (1st)
143967, ¶¶ 30-31 (citing Snelson, 204 Ill. 2d at 36). A reviewing court may not “usurp the function
of the jury and substitute its judgment on questions of fact fairly submitted, tried and determined
from the evidence.” Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992).
¶ 53 For a hospital to be found liable for the negligent acts of a physician under the doctrine of
vicarious liability, the plaintiff must prove what is known as the “holding out” factor – that (1) the
hospital held out the physician as its agent, or (2) the hospital had knowledge of and acquiesced to
the physician holding herself out as the hospital’s agent. See Wallace v. Alexian Brothers Medical
Center, 389 Ill. App. 3d 1081, 1087 (2009). The focus of this factor is whether “the patient knows,
or should have known, that the physician is an independent contractor.” Gilbert, 156 Ill. 2d at 524.
“Although not dispositive of the ‘holding out’ factor, whether a patient signs a hospital consent to
treatment form that contains clear and unambiguous independent contractor disclaimer language
is an important factor to consider with respect to this factor because it is unlikely that a patient
who signs such a form can reasonably believe that her treating physician is an employee
or agent of a hospital when the form contains specific language to the contrary.” Lamb-Rosenfeldt
v. Burke Medical Group, Ltd., 2012 IL App (1st) 101558, ¶ 27; see Mizyed v. Palos Community
17 Hospital, 2016 IL App (1st) 142790, ¶¶ 59, 64; Wallace, 389 Ill. App. 3d at 1083, 1088; James v.
Ingalls Memorial Hospital, 299 Ill. App. 3d 627, 632 (1998).
¶ 54 However, a consent form is ambiguous and raises a question of fact for the jury
if it states that “some or all of the physicians who provide medical services” at the hospital “are
not employees or agents of the hospital” and provides a list of specialties of “non-employed
physicians” that does not include the specialty of the defendant physician. See Hammer v. Barth,
2016 IL App (1st) 143066, ¶ 24. Additionally, even if a patient signs a consent form stating that
physicians are independent contractors but presents other evidence that the hospital was “holding
out” a physician as its agent or employee, the question becomes one for the jury. See Mizyed, 2016
IL App (1st) 142790, ¶ 63.
¶ 55 Evidence of “holding out” includes (1) the physician wearing scrubs or a lab coat with the
hospital’s logo (see York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 196
(2006)), (2) signage at the physician’s office containing the logo and colors of the hospital, (3) the
physician’s office being located inside the hospital, or (4) the physician’s webpage advertising
services of the hospital (Williams v. Tissier, 2019 IL App (5th) 180046, ¶ 46). Factors weighing
against a finding of “holding out” include that the patient was seen at the physician’s office outside
of the hospital and that the patient made appointments with the physician by calling the physician’s
office, not the hospital. See Delegatto v. Advocate Health and Hospitals, 2021 IL App (1st)
200484, ¶ 51.
¶ 56 In this case, a 10-day jury trial was held. At trial, each party presented expert testimony,
witnesses and evidence to support their positions. The jury heard the expert testimony from
plaintiff and defendants and ultimately decided in favor of Advocate. To disturb the jury’s verdict
in favor of Advocate, we must conclude that there was no evidence at trial to support its finding.
18 See Eid, 2017 IL App (1st) 143967, ¶¶ 30-31; Snelson, 204 Ill. 2d at 36. That is not the case here.
There was evidence presented at trial to support the jury’s special finding that Dr. Zhang was
Advocate’s apparent agent in 2009 based on (1) the ambiguous consent form that did not list Dr.
Zhang’s specialty (neurology) (see Hammer, 2016 IL App (1st) 143066, ¶ 24), (2) Dr. Zhang
wearing a coat and badge with Advocate’s logo (see York, 222 Ill. 2d at 196), and (3) plaintiff
seeking treatment from Advocate, not specifically Dr. Zhang, on August 25, 2009 (see Spiegelman
v. Victory Memorial Hospital, 392 Ill. App. 3d 826, 841 (2009)). There was also evidence to
support the jury’s finding that Dr. Zhang’s apparent agency ended in 2009 because plaintiff
obtained treatment from Dr. Zhang in her private neurology practice in an office located outside
the hospital from 2010 to 2014. See Delegatto, 2021 IL App (1st) 200484, ¶ 51.
¶ 57 Additionally, there was evidence supporting the jury’s determination that Advocate was
not liable to plaintiff because Dr. Zhang’s medical negligence did not take place until 2010 or
thereafter, when it was no longer reasonable for plaintiff to believe that Dr. Zhang was acting on
behalf of Advocate. While plaintiff’s experts presented testimony that Dr. Zhang deviated from
the standard of care from 2009 to 2014, there was ample evidence to support the conclusions that
(1) Dr. Zhang did not violate the standard of care until 2010 or thereafter; and/or (2) Dr. Zhang’s
actions/inactions did not cause injury to plaintiff until 2010 or thereafter. Defendants’ expert, Dr.
Nicholas, testified that Dr. Zhang only violated the standard of care by failing to obtain additional
MRIs of plaintiff after 2009. Additionally, plaintiff’s own expert, Dr. Aghi, testified that Dr. Zhang
did no harm to plaintiff until after 2009 because plaintiff’s tumor stayed essentially the same in
2009. Because there was evidence to support the jury’s finding that Advocate was not vicariously
liable for Dr. Zhang’s negligence, the jury’s verdict is not against the manifest weight of the
evidence. See Eid, 2017 IL App (1st) 143967, ¶ 31.
19 CONCLUSION
¶ 58 The judgment of the circuit court of Du Page County is affirmed.
¶ 59 Affirmed.