1 NOTI CE Decisi on fi led 06 /07/ 07. The text of this dec ision m ay be changed or
corr ected prior to the filing of a Petit ion for Re hea ri ng o r th e dispos it ion of

the s ame. NO. 5-05-0513 IN THE APPELLATE COURT OF ILLINO IS FIFTH DISTRICT

__________

___________

__________________________________________________ _ MICHAEL

G. RATH, Guard

ian of the Estate of ) Appeal from the Elizabeth Rath , a Disabled Perso n, ) Circui t Court of ) J ac ks on Co un ty. Plaintiff-A ppellee and C ross-Appellan t, ) ) v. ) No. 02-L-95 ) CARBONDAL E NURSIN G AND ) REHAB ILITATI ON CEN TER, INC ., ) Honorab le ) William G. Schwartz, Defendant-Appellant and Cross-Appellee. ) Judge, pr esiding.

______________________________________________ ___________

______________

_ JUSTICE GOLDE NHERS H delivered th e opinion of the cou rt: P lainti ff, Michael

G. Rath, gua

rdian of the

estat e of Eliza beth Rath, a disabl ed person, filed suit aga inst defe ndant, Car

bondale Nurs ing and

Rehabilitation Center, Inc., request ing damages pursuant to the Nursing Home Care Act (Act) (210 ILCS 45/1-101 et seq. (West 2004)). The circ

uit court of Jackson

County entere d a judgment

on a jury verdict awarding damages to plaintiff. The court also awarded plaintiff attorney fees and costs. On appeal, the issues are (1) whether the trial court er

rantly allowed evidence of

negligent conduct by defendant and (2) whet

her the c ourt awar

ded a proper am

ount for atto rney fe es. We aff irm. FACTS OnOctober 14, 2000, Eliza beth Rath wa s place d in defenda nt's nurs in g h om e f

ac il it y. She stay ed in the facilit

y unt il plai ntiff, her son, reque sted her

dischar ge on Novembe

r 24, 2000. The next day

she was t aken to Mem

orial Hos pital of Ca

rbondale. The records

from the hospit al note de hydr ation, pr essure sores, and a urina

ry tract infecti on. Plai ntiff filed suit, allegin g numerous n egligent acts by defen dant, including a failure2

to employ and train sufficient personnel, a failure to properl

y examine

and monitor, a failure to administer proper

nutrition an d medication, a fa ilure to regularly move and reposition, a failure to pr op er ly t re at pr es su re so re s a nd cl ea n t he bo dy, and a failure to bring in medical personnel. Plaintiff also alleged that defendant' s negligen ce wa s a direct and p roximate

caus e of severe and permanent personal injury to Elizabeth Rath. In a separa te c ount , plai ntiff a llegedthat the

negligent

acts of de fendant viol ated the Act. In i ts answe r to the complaint, defendant admi tted numerous acts of negligence. Plai ntiff filed requests to admi

t. In re sponse, de fendant adm itted num erous negligent acts. For example, def

endant admitted th at it failed to adeq uate ly c hart se veral a spects

of Elizabeth Rath's health an d failed to time ly notify a phy sicia

n. Defendant

also admitte d that Elizabeth Rath stopp ed consuming adequate amou nts of food and water while a r esident and that her clinical re corddid not show a medical reason that would indicate that dehydration

was unavoidable. Defendant admitted that Eliz abeth Rath developed pressure sores and that her mental status chan ged durin g her stay. The trial court enter

ed a partial sum

mary ju dgment for

plainti ff. The court

found severalinstanc es in which defendant wa s neglige nt. The cour

t found that defendant allowed Elizabet h Rath to bec ome dehy drated, failed t

o properly

chart he r bodily functions a

nd dietary consumption, and failed to no tify a physician in a timely manner. Defendant fil ed a mot

ion in limine

asking the

court to pr

event pla intiff from discussin g or prese

nting testimony

on the negli gent act s admi tted by defendant. For exampl e, defenda

nt sought to pr

event any refere nce to it s recor

ds of thenutritional statu s, dietary consumption, or b odily functions o f Elizabeth Rath. Defe ndant als o sought

to bar any testimony or records regardin g Elizabeth Rath's pressure sore s and lethargic behavior. The court d enied the motion

. At the trial, plai

ntiff presented several

witness es who, defe

ndant asser ts, would ha

ve3

violated an order in lim ine , if the court had granted defendant's motion. The tri al court allowed testimony from representati ves of th e Illi nois Depar

tment of Public Hea

lth and records from the Egy

ptian Human Rights Commis sion, as well astestimony from medical experts regardi

ng the care rendered to Elizabeth Rath and how s uch care was subst

andard. The jury returne d a verdict in favor of plaintiff in the amount of $200,000. The court entered a judgment

on the ve rdic t and a

lso a warde d plai

ntiff attorne y fe es of $90,018 and costs of $1 0,869.6 5 pursuan t to the Act. Defenda nt appealed, a nd plaintif f cross-app ealed. ANALYSIS I. Admi ssions Defendant

contends that the trial c ourt erred by allowing evidence on matters that had beenadmit

ted. Defendant m

ade nume rous admissions in respo nsive pleadin gs, answers to requests to admit, and responsesto moti on for a sum mary judgment. Defendant

contends that these responses constit

uted judicial ad missions and ma de any disc

ussion of the care rendered to Elizabeth Rath irrelevant and prejudicial. "A judicial admis sion is a deliber ate, c lear, unequivocal

state ment of a party , about

aconcrete fact, w ithin the party's peculiar kn owledge." Waus au Insura nce Co. v. All Chicagoland

Moving &

Storage Co. , 333 Ill. App. 3d 1116, 1122, 777 N.E.2d 1062, 1068 (2002). Jud icial admi ssions are binding upon the pa rty making t

hem and m

ay not be controver ted. Wausau Insur

anc e Co. , 333 Ill. App. 3d at 1122, 777 N. E.2d at 1068-69.

" 'Judicial admissions are

not evidence at all but rather have the effect of withdrawing a fact from contention .' " Pryor v. American Central Transport, Inc. , 260 Ill. App. 3d 76, 85, 629 N.E.2d 1205, 1211 (199 4) (quoting M. Graham, Evidence Text, Rules, Il l ustrat ions and Problems, at 146 (1983)) . "The purpos e of the rule is to remove the temptation to commit perjury." In re Estate of Rennick , 181 Ill. 2d 395, 40 7, 692 N .E.2d 11 50, 115 6 (1998 ).4

"[A] trial court may exclude evidence on an issue which has been judicially admitted because: (1) the evidence is no lo nger rel evant to t he issue s remaining in t

he case ; (2) the evidence may

be superfl

uous and confusi

ng; and (3) the

other par ty may not neces saril

y be entitled to theaddit ional dramatic for ce of the ev idence *** ." Davis v. Internat ional Ha rvester

Co. , 167 Ill. App. 3d 814, 824, 521 N.E. 2d 1282, 1288 (1988) (citing 9 J

. Wigmore, Evidence §2591, at 824 (Chadbourn rev. ed. 1981)). The r ule, howeve

r, is not absolute. A trial court is aff orded discre tion in evid entiary rulings, and its decision will not be disturbed absent an abuse of that discretion. Stallings

v. Black &

Decker ( U.S. ) , Inc. , 342 Ill. App. 3d 676, 68 3, 796 N .E.2d 14 3, 149 (2 003). As stated in Wigmore's treatise:

"Nevertheless, a colorl ess adm ission by the opponent ma

y s ometi mes ha ve the effect of depriving the part y of the legit imate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudginglimi tations or evasions or insinuatio ns (especially in criminal cases), so as to be techni cally but not practically

a waiver of

proof. Hence, t

here shoul d be no absolu te rule on the su bject; and the trial court's

discretion should determi ne whether a particular

admission is so ple nary a s to rende

r the first part

y' s evidenc e wholly

needles s under the circumstances." (Emphasis in orig inal.) 9 J. Wigmore, Evidence§2591, at 824-25 (Chadbourn rev. ed. 1981). A categorical descri

ption of the admissions as judicial doesnot resol ve the is sue at hand. Despite the admis sion of negligent conduct, a discussion of the care re ndered to Elizabeth Rath was st ill necess ary to determine the m

erits of plaintiff's cl aim. In other words, the ad missions were limited in scop e. Aninitia l questi on arise s concer

ning the ti

me fra me for t he conduct a

dmitt ed by defenda nt. Plaintiff alleged defendant was negligent th rougho ut Elizabeth R ath's stay . In its answer t

o the amended complaint, d efendan t admitted that it carelessly and negligently5

failed to monit or for skin ca

re, dehy dration, and nutrit

ion, but it limi ted its admis sion to the conductin the"approxim ate la st week" of

Elizabeth Rath's res idence. This limi tation was

anapparent

part of de fe nd an t' s p re se nt at io n t o t he ju ry. At the trial, defendant argued that it had been n egligent, bu t only during the last w eek of Eliza beth Rath's stay. Inlight of the

time limitation, the contested testimon y was still relevant. Plaintiff d id not limi t his cl aim of ne gligence

to the la st week of El izabe th Rath's residence, but rather he present

ed evidenc e on thetreatment rendered to Elizabeth Rath throughout the duration of her stay. For example, Dr. Diel, a treating ph ysician, testified that Elizabeth R ath must have lacked pr

oper hy dration a nd nutriti on for

some t ime to reach her debil itate d condition. Defenda nt's asser

tion that any negligent conduct occ

urred only

during the l ast week of

her residency is the t ype of grudging lim

itati on that pre

vents an a dmiss ionfrom

being a practical

wa iver of proo f. See 9 J. Wigmore, Evidence §2591, at 824 (Chadbourn rev. ed. 1981). Plaintiff w as entitled to present evide nce regardin g treatment throug hout Elizab eth Rath's stay , considering defendant's lim ited admissi ons of negligence to a limited period of time. Even if defendant

had admi tted negl igent conduct for theentirety of Elizabeth Rath's st ay, evidence

of the care gi

ven to her woul d still

be relevant. A des cripti on of the course of care was necessary

for an understand ing of p laintiff's claim. On ap peal, defen dant asserts that the testimony was mere ly cumula tive, a ndpossibly i

nflammatory

, because liabili

ty was admit ted. This posit

ion rais es an int

erest ing questi on: How coul d a jury ass ess damages without discuss ing the ca

re rende red a patient when a part

of the all eged pain a

nd suffering occurred during th e ongoin g treatment itself? We n eed not add ress this question, however, because liability was not ad mitted. Defendant

contest ed causa tion. In its answer to plain tiff's complaint, d efendan t flatly deniedboth direct and proximate cause , and causation was not add ressed by the requests to admit or the summar

y judgment. Defendant adm itted that there was a duty

of care and that6

it was breached, but l iabili ty was conte sted. See Long v. Yellow Cab Co. , 137 Ill. App. 3d 324, 328, 484 N.E.2d 830, 833 (1985). The denial of causation was central to defend ant's present

ation to t he jury . In clos ing argument, defendant asserted that any harm caused by

its negligence w as limi ted to relatively minor degrees of dehydration a

nd skin brea

kdo wn. De fe ndant argu ed that just b ecause Elizabeth Rath w as injured d id not mean that d efendan t caused all of h er condition s. Defense counsel made a

potentially persuasive con clusion: "All these things that happened and all the se things

that wil l continue

to happen unti l [Eliza

beth Rath] pass es aw ay from a compli cation

or they disconnect the f

eeding tub e are caused by th e irrevers ible consequences of a hideous set o f disease proc esses, and it wou ldhave happened whetheror n ot sh e came into the nu rsing home." The contested evidence was rele vant to causation. In particula r, the expert medica

l tes tim ony was essential t

o this issue. Defendant contends the court erre d by allowing Dr. Diel to testify about the care ren dered to Elizab eth Rath during her residency at it s f ac il it y. As a part of

his testimony, Dr. Diel described th e standard of care–includ ing the failu re to use protective me asures for Elizabeth Rath'sbedsores and the failure to notify a physic ian of dehydration. Dr. Diel

opined that

this tr eatment caus ed dehydr ation, m alnutri tion, and bedsores. Similarly

, defendant objects to the testim ony of plaintiff's retai ned expert, Dr. Blaise. Dr. Blaise opined that the lev el of care in the nursing home and the lack of care caused changes i

n Elizabeth Rath' s level

of consciousness. The

descri ption of th e care rendered to Elizabeth Rath was essenti al to the issue of causa tion and w as properly submitted to the j ury. Defendant

relie s on Bullard

v. Barnes , 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235 (1984). In Bullard , the trial court allowed evidence showing how the decedent's vehicle was forcedoff the road by Barnes' i mproper p a ssing maneuver. In a succ inct dis cussion, the7

sup reme cou rt af

firme d the appellate court a nd instructed the trial court, up on remand, to excludeany

testi mony descri bing the occ

urrence of the acc ident. The

supreme court found that the evide

nce had bee

n imprope

rly adm itted in light of the

defendants ' conce ssion of li ab il it y. The suprem

e court stated, "We agree with d efendan ts' argument that this evidence is not relevant o n any issue to be retried an d with the ap pellate court's op inion that its admission constitu ted reversible erro r." Bullard , 102 Ill. 2d at 519, 468 N.E. 2d at 1235. Bullard is readil y di stinguished. In Bullard , the only is sues presented to the jury were the decedent's pain and suff ering at the time of th e accident a nd pecu niary loss to next of kin. The suprem

e court s aw no need to expand on the more detailed descrip tion of th e facts given by t he appell ate cour

t decis ion it affi

rmed. Bullard , 102 Ill. 2dat 519, 468 N.E.2d at 1235, aff'g

112 Ill. Ap p. 3d 38 4, 393, 4 45 N.E.2 d 485, 492 ( 1983). The appellate court distinguish ed instances wh ere the extent o f attributable in jury was at issue: "Pla inti ffs argue that the loca tion and spe ed of the vehi cles we re ma teria l to the nature and extent

of decedent's injur

ies. Thi s would be tr

ue in an injury cas e, especially when there is ground for believin g that the plain tiff is e xagge rating his injuries. However, i

t has no place in a wro ngful d eath case, where the in juries led to death." Bullard , 112 Ill. Ap p. 3d at 39 3, 445 N .E.2d at 49 2, aff'd, 102 Ill. 2d at 519, 468 N.E .2d at 123 5. Bullard limits i tself to instances where there are no questions about the extent of injury attributable to an occurr ence. In this case, ca usation was contested and the rule announced in Bullard

does not ap ply. Illinois courts have f

ound th at Bullard

does n ot apply when a defendant denies li ab il it y. Lee v. Chicag o Tra nsit Autho rit y , 152 Ill. 2d 432, 464, 605 N.E.2d 493, 507 (1992); Long v. Yellow Cab Co. , 137 Ill. App. 3d 324, 328, 484 N.E.2d 83 0, 833 (1985); see Evoyv . CRST Van Expedited, Inc. , 430 F. Supp. 2d 775, 780 ( N.D. Ill . 2006 ). Long ,8

release d sh ortly

after Bullard , is instructive. Long , like Bullard , involved an automobile accident. In Long , the defend ant admitted neglig ent driving but claimed that the p laintiff's injuries were not caused

by the accident. Long , 137 Ill. App. 3d at 328, 484 N. E.2d at 833. Instea d, the defenda

nt argued t

hat the pl aintiff' s conditi on was caused by either a prior accide nt or unrelated treatment. The ap pellat e court found t

hat, al though the defe

ndant admitted negligence, th e description o f the acciden t was still relevant t o c ausati on and damages. Thus, the ev idence was p roperly admitted. L ong , 137 Ill. App. 3d at 328, 484 N.E.2d at 8 33. This case is simil ar

to Long in that defen dant admitted that it b reached a du ty, but it did not admi

t causa tion. As i n Long , the question

of what was attribu table to neglig ence still

rema ined. In both cases , a description of the negligent act would be relevant to contested questions of causat ion and damages. In this c ase, as in Long , the trial court acted correctly by all owing the evidence describing the underly ing occurrence. A plaintiff is entitled

to prove eve

ry element of

his claim. Lee , 152 Ill. 2d at 465, 605 N.E.2d at 507. If a

stipul ation is limitedin a way that does not cover a

ll the pur poses for which the evidence is relevant, the evidence should not beexcluded. Stallings v. Black & Decker ( U.S. ) , Inc. , 342 Ill. App . 3d 676 , 68 5, 7 96 N .E.2 d 14 3, 1 50 ( 200 3); s ee M. Grah am, Cleary & Graham's Handb ook of Illinois Evid ence §403 .1, at 166 (8 th ed. 200 4). I n thi s case, defenda nt attempted to limit its admissi on to only a part of the tim e of the alleged negligence. Furtherm

ore, defe ndant conte sted both pr

oximat e and dire ct caus ation. The trialcourt did n ot abu se its discretion by

allowing t

estim ony de scribi

ng the tre atme

nt of Elizabeth Rath. By our decision we do no t w ish to dis courage judi cial a dmiss ions. Adm

issions promote judicial efficiency . Furthermore, it is appropriate that a par

ty t hat concedes a fact receives recognit

ion for its good faith. I

n this ca se, defe

ndant justl

y pr oclaim ed to thejury9

that it accepted bla me for a breach o f duty. Nonetheless, th e trial court acted w ithin its discretion. This is not a case w here an admitted actio n, in its elf, sufficie ntly provided the jury with enou gh unco ntested detail to make a n informe d decisi on on the issue of c ausati on. Defenda nt's argument on appealis l aden w ith exam plesof conc ess ions o f a

breach of duty but short on d escriptions of

the testimony that was suppo sedly irrelevant and prejudi cial. A review of the record reveals that the testimony was rel evant beyon d the concl usions concededby d ef

en da nt . W it ho ut th at te st im on y, the jury would not have been able to m ake an informed deter

minat ion of what ca

used Eliz abeth Rat

h's condition. II. Attorney

Fees Defendant

contends that the trial c ourt erred by awarding attorney

fee s. The Act provides: "The lic ensee shall pay the actualdamage s and cost s and att orney's fee s to a facility resident whose rights *** are violated." 210 ILCS 45/3-602 (West 2004). Defendant

asser ts that the tri al was not

complex, and defendant points out thatmany issues had been a dmitted. Defend ant also poin ts out that plain tiff's counsel had entered into

acontingen cy fee agreement. The claim that the case was simpl e is bel ied by our discus sion of the effect of the admissi ons. Nonet hel ess, the Act carves o ut no excep tion for less trou bles ome cases. The l egi slature's use of th e term "shall" indicates the fee sh ift is

ma nd at or y. Berlak v. Villa Scalabrini Home for the Aged, Inc. , 284 Ill. App. 3d 231, 235, 671 N.E.2d 768, 771 (1996). An awa rd of attorney fees in this case is in line with the go als of encouragi

ng private enfo rcement of and compliance with th e Act. Berlak , 284 Ill. App. 3dat 236, 671 N.E.2d at 7 71; Harris v . Manor Healt

hcare Corp. , 111 Ill. 2d 350, 370, 489 N.E.2d 1374, 1383 (1986). Oncross-appeal, plai

ntiff asserts that t

he trial court impr

operly limi ted the a mount of fees by r eferring to the contingency fee agre e ment. Plaintiff als o asserts that t he trial10

c ou rt was obliga

ted to awa

rd a lodestar am

ount based on t

he amount

of time spent repres enting

plaintiff. T he cases cited by plaintiff do not ad dress the fee- shift provi sion of the Act and do not control our decision. See Brundi dge v. Glend

ale Fe deral Bank, F.S.B

. , 168 Ill. 2d 235 , 240, 659 N.E .2d 909 , 912 (19 95); City of Bur lington v. Dague , 505 U.S. 557, 56 1, 120 L . Ed. 2d 4 49, 456 , 112 S. C t. 2638, 2 641 (19 92). The fee-shi fting provis ionof the Act wa s addres sed in Berlak

. In Berlak

, a defenda

nt asserted that the trial c ourt erred by failing to take into account the existe nce o f a contingency

fee agre ement

when comput

ing the awa

rd of fees under the Act. Berlak pointed out that the Act is s ilent on how

the fees are to be computed. Hence, for guidance the court looked at other

fee-shi fting sche

mes i n civil r ights li tigati on . Berlak

, 284 Ill. App. 3d at 240-41, 671 N.E.2d

at 774; see Dague , 505 U.S. at 561, 120 L. Ed. 2d at 456 , 112 S. Ct. at 2641 (1992); City of

Riverside v. Rivera , 477 U.S. 561, 575, 91 L. Ed. 2d 466, 480, 106 S. Ct. 2686, 2695 (198 6); Hensley v. Eckerhart , 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Blanchard v. Bergeron , 489 U.S. 87, 103 L. Ed. 2d 67, 109 S. Ct. 939 (1989). The determ ination of what constitutes a reason able fee is one of trial court dis creti on (Raintree Health Care Cente

r v. Il linois Human Ri

ghts Comm'n , 173 Ill. 2d 469, 494, 67 2 N.E.2d 1136, 1147 (1996)), an d in Berlak , the court held that the ter ms of a contingency

fee contract could provide g uidance fo r determining reaso nableness ( Berlak , 284 Ill. App. 3d at 240, 671 N.E.2d at 7 74). Nonetheless, th e court noted that a conting ency fee agreement should not establish a ceiling on th e awards, becau se in some cases an attorney may only

be willing to beco me involved due to the ad diti onal award of statut ory fees. The

court hel d that the existence of a

contingen cy fee agreement was of little relevan ce in the case before it bec ause the conti ngent fee would have been nominal. Berlak , 284 Ill. App. 3d at 242, 671 N. E.2d at 775. The fee awar

d is in li ne with Berlak

. The test is reasona bleness, and a contingency11

fee agreem

ent can be a relevan t factor in determining reason ableness. Berlak , 284 Ill. App. 3d at 241, 671 N.E.2d at 774. As in Berlak , the trial court hel d a hearing on what constituted

reasonable f

ees and costs. Th e trial court prop erly considered

the contingency fee agreem

ent in det ermi ning what constituted

a reasonable f

ee, and the amou nt granted in this case surely constitutes suff icient inducement f

or private en forcement of the Act. Plai ntiff also as serts

that he i s entit

led to re asonable

fees and c osts inc

urred in t he prosecut ionof this appe al. In Berlak , the trial court e

rred by r efusing to consider

th e plaintiff's supplemental petitio n for attorn ey fees and costs f or post trial

repres entati on. Berlak , 284 Ill. Ap p. 3d at 24 3, 671 N.E .2 d at 776. In this case, plaintiff indicated that a supplemental

petiti on would be file d in the tr ial cour t, so the re is no or der or ple ading in the record on appeal f

or us to review at this time. See P hysicians Insurance Exchange v. Jennings , 316 Ill. Ap p. 3d 44 3, 453, 7 36 N.E.2 d 179, 1 87 (200 0). CONCLUSI ON Accordingl

y, the judgme

nt of the ci

rcuit c ourt is he

reby affirmed.

Affirme d.

WELCH, P.J., and CHAPMAN, J., concur.NO. 5-05-0513 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

___________________________________________________________________________________ MICHAEL

G. RATH, Guard

ian of the Estate of ) Appeal from the Elizabeth Rath , a Disabled Perso n, ) Circui t Court of ) J ac ks on Co un ty. Plaintiff-A ppellee and C ross-Appellan t, ) ) v. ) No. 02-L-95 ) CARBONDAL E NURSIN G AND ) REHAB ILITATI ON CEN TER, INC ., ) Honorab le ) William G. Schwartz, Defendant-Appellant and Cross-Appellee. ) Judge, pr esiding.

___________________________________________________________________________________ Opinion Filed : June 7, 2007

___________________________________________________________________________________ Justice s : Honorable R ichard P. Goldenhersh, J.

Honorable Thomas M. Welch, P.J ., and Ho nor able M eliss a A . Ch apm an, J ., Concur

___________________________________________________________________________________ Atto rneys Paul W. J ohn son, K enne th E. Dick , Burroug hs, Hep ler, Broom, MacDonald, Hebrank for & Tr ue , 1 03 We st Van da li a St

re et , S ui te 300 , P .O

. Box 510, Ed wards ville, IL 62025- Appell ant 0510

___________________________________________________________________________________ Attorney Ja y Sch af er , Wi nt er s, Bre wst er , C ro sb y an d Sc ha fe r, LLC, 111 Wes t Ma in , P .O

. for Box 700, Marion, I L 62959 Appellee

___________________________________________________________________________________