2019 IL App (3d) 140543

Nos. 3-14-0690, 3-14-0795, & 3-16-0133 (Consolidated) 

Opinion filed August 27, 2019 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2019 

ANGELA L. McINTYRE, Independent )

Administrator of the Estate of DONALD ) 

R. McINTYRE, JR., Deceased, ) 

 ) 

Plaintiff-Appellant and ) 

Cross Appellee, ) 

 ) 

 v. ) 

 ) 

RAJESH BALAGANI, D.O.; ILLINOIS LUNG ) 

INSTITUTE, LTD., an Illinois Corporation, ) 

OSF HEALTHCARE SYSTEM, a not-for-profit ) 

corporation, ) 

 ) 

Defendants-Appellees and ) 

Cross Appellants, ) 

 ) 

and ) 

 ) 

SACHDEV P. THOMAS, M.D., and ) 

ONCOLOGY-HEMATOLOGY ) 

ASSOCIATES OF CENTRAL ILLINOIS, P.C. ) 

 ) 

Defendants-Appellees ) 

 ) 

(Ryschell R. Bolton, D.O.; Peoria Pulmonary ) 

Associates, Ltd., an Illinois Corporation, ) 

 ) 

Defendants). )

Appeal from the Circuit Court

of the 10th Judicial Circuit,

Peoria County, Illinois, 

Appeal Nos. 3-14-0543 

 3-14-0690 

 3-14-0795 

 3-16-0133 

 Circuit No. 10-L-87 

Honorable 

Scott A. Shore, 

Judge, Presiding.

_____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
2 

Justices Carter and Lytton concurred in the judgment and opinion.

_____________________________________________________________________________

OPINION

¶ 1 The plaintiff, Angela L. McIntyre (Angela), as independent administrator of the estate of 

her deceased husband, Donald R. McIntyre (Donald), brought a medical malpractice action 

against several physicians, their respective employers, and the hospital where Donald was treated 

and died. Angela sought damages allegedly resulting from the negligent treatment that Donald 

received on September 7 and 8, 2009, while he was a patient in the medical intensive care unit 

(MICU) at OSF St. Francis Medical Center.

¶ 2 Angela brought the following claims: (1) a negligence claim against Dr. Rajesh Balagani 

and his employers, Illinois Lung Institute, Ltd. and Peoria Pulmonary Associates, Ltd. 

(collectively, the Balagani defendants); (2) a claim against OSF Healthcare System (OSF), 

alleging that OSF was derivatively liable for Dr. Balagani’s negligence because Dr. Balagani 

was OSF’s apparent agent; (3) a negligence claim against Dr. Ryschell R. Bolton, a third-year 

medical resident and her employer, OSF; (4) a claim against OSF for institutional negligence 

relating to the conduct of two OSF respiratory therapists who intubated Donald prior to his 

death; and (5) a negligence claim against Dr. Sachdev P. Thomas, the on-call hematologist who 

consulted with Drs. Balagani and Bolton regarding Donald’s treatment, and Dr. Thomas’s 

employers, Oncology-Hematology Associates of Central Illinois, P.C., Peoria Cancer Center, 

P.C., Illinois Cancer Care Center, P.C., and Peoria Cancer Care Center, P.C. (collectively, the 

Thomas defendants). 

¶ 3 The Thomas defendants filed a motion for summary judgment, alleging that Dr. Thomas 

did not owe Donald a duty of care as an on-call physician. The trial court granted the motion and 

the matter proceeded to a jury trial with the remaining defendants. The jury returned a verdict in 
3 

favor of Angela and against the Balagani defendants and awarded Angela damages of $1.1 

million for loss of income, goods, and services and $500,000 for loss of companionship and 

society. However, the jury returned a verdict in favor of Dr. Bolton and OSF as to institutional 

negligence. Angela and the Balagani defendants filed posttrial motions, which the court denied. 

These appeals followed.

¶ 4 FACTS

¶ 5 Donald first presented to the emergency room (ER) at OSF on September 6, 2009, after 

fainting at a CVS pharmacy. He complained of a headache, facial pain, and neck stiffness. His 

hemoglobin was tested at 11.1 g/dL, which is considered mild anemia (the normal range is 13 to 

16 g/dL). He was given a complete workup, which revealed no cause of his condition. He was 

given antibiotics for a presumed case of sinusitis and released. 

¶ 6 The following day, Angela took Donald back to the hospital because he looked yellow.

He arrived at approximately 11 a.m. complaining of low back pain, headache, fatigue, chills, 

shortness of breath, and blood in his urine. He fainted about an hour after arrival, and later, his 

heart stopped beating for 12 to 16 seconds. A cardiac workup suggested that Donald might have 

had a heart attack from an occluded artery or inflammation of his heart or surrounding heart 

tissue lining. His liver enzymes were very elevated, which suggested possible hepatitis. Doctors 

detected bilirubin, which can be caused either by fractured blood cells or by a blockage in the 

liver or gallbladder. Donald’s white blood cell count was elevated and he showed signs of 

possible infection, such as flu-like symptoms, a fever of 102.4 degrees Fahrenheit, headache, 

muscle aches, and sinus symptoms. He was tachycardic and sweating. His hemoglobin was 

found to be 7.0 g/dL, down from 11.1 g/dL the previous day, which is considered anemic. His 
4 

hematuria (blood in the urine) was rated at “4 plus,” which is the highest amount of blood or 

hemoglobin one can have in one’s urine. 

¶ 7 Dr. Rose Haisler, the attending emergency department physician that day, testified that, 

after she reviewed Donald’s blood tests results in the ER, she was aware that Donald had 

“hemolytic anemia” (HA). HA is a rare disorder that causes the patient’s own immune system to 

attack and eventually destroy healthy red blood cells. Red blood cells can be described as “bags” 

of hemoglobin, the substance responsible for transmitting oxygen from the blood to the body’s 

tissues during circulation. When a patient has HA, antibodies that normally attack viruses and 

other infectious agents bind to the patient’s own red blood cells. Each time blood passes through 

the spleen, white blood cells tear the antibodies away from the red blood cells, stripping off small 

pieces of the red blood cells in the process. As a result, the red blood cells become smaller and 

smaller until they die in the spleen. If untreated, this continuous destruction of red blood cells 

results in death due to insufficient oxygen in the body. 

¶ 8 In addition to HA, Donald also had elevated levels of methemoglobin. Methemoglobin 

decreases the amount of oxygen that hemoglobin is able to pick up as the blood goes through the 

lungs and also interferes with or inhibits the release of oxygen from hemoglobin into the body’s 

tissues. This condition increased the likelihood that Donald could die from HA. Treatment of 

HA requires the transfusion of healthy red blood cells, which maintains the blood’s oxygen 

carrying capacity, coupled with the administration of steroids and immunoglobulin by 

intravenous delivery (IVIG), which suppresses the chemical signaling error that causes the 

body’s immune system to attack its own red blood cells. 

¶ 9 Dr. Haisler admitted Donald to the MICU at OSF because she suspected he had HA and 

he had “deteriorated so quickly.” Dr. Haisler described HA as “incredibly rare.” This was the 
5 

first suspected case of HA she had seen outside a textbook. When asked if it would be 

appropriate to provide blood to assist the patient in maintaining enough red blood cells to

provide oxygen for the body, Dr. Haisler responded, “no.” She explained that giving blood to 

treat HA, unlike giving blood to treat blood loss occurring from an open wound, is “very 

complex,” and is not something she would do without consulting a hematologist. She testified

that HA is not treated in an emergency department. Nevertheless, Dr. Haisler ordered: (1) a 

“Coombs test” to be performed (the only way to confirm that a patient is suffering from HA), (2)

Donald’s blood to be crossmatched, and (3) four units of un-crossmatched blood (O negative 

blood which can be given to anyone regardless of their blood type) to be prepared by the blood 

bank. 

¶ 10 Dr. Bolton, an emergency medicine resident physician working under the attending 

physician, Dr. Balagani, treated Donald while he was in the MICU. According to Dr. Bolton’s 

entries into the medical record, Donald was admitted to the MICU with a diagnosis of 

“autoimmune [HA] with an uncertain etiology.” Donald’s blood was tested again at 4:23 p.m. 

The test showed that Donald’s hemoglobin had decreased another gram to 6 g/dL. Dr. Bolton 

testified that she was notified of this blood test result at 4:45 p.m. and that she ordered that blood 

be given to Donald because a hemoglobin of less than 7 g/dL “requires blood.” Dr. Bolton stated 

that she ordered the un-crossmatched, O-negative blood to be transfused because it was “urgent” 

in order to maintain Donald’s red blood cell levels. Two of the four units of un-crossmatched, 

O-negative blood ordered by Dr. Haisler were provided to Donald at Dr. Bolton’s direction at 

5:16 p.m. and 5:34 p.m. Around this time, Dr. Bolton performed a lumbar puncture to test for 

meningitis. Afterwards, she and Dr. Balagani examined Donald and spent approximately an hour 

discussing his symptoms and treatment plan. While awaiting the results of the lumbar puncture, 
6 

they transferred Donald to an isolation room because they were concerned that he might have an 

infection that might be contagious. 

¶ 11 At 9:40 p.m., Donald was stable, meaning that his vital signs were not changing. Dr. 

Bolton told Donald’s family members that Donald had HA and was very sick, and that specialists 

would be coming to see him. Donald’s hemoglobin was tested again at 9:57 p.m. and it measured 

6.3 g/dL. Dr. Bolton was notified of the new test results at 10:40 p.m. She later testified that she 

considered the 6.3 g/dL value to be “equivocal,” given lab variability, and surmised that 

Donald’s hemoglobin level could be the same as it was before. Dr. Bolton told Dr. Balagani 

about the hemoglobin results, and he advised her that they needed to get a specialist involved 

because, at that point, they had enough lab test results to conclude that Donald was suffering 

from HA. 

¶ 12 At approximately 10:30 p.m., Dr. Bolton spoke with Dr. Thomas, the on-call 

hematologist. When asked during the trial to describe her understanding of her consultation with 

Dr. Thomas, Dr. Bolton replied: “My understanding was that we were to give steroids, to give 

IVIG, to try to get cross-matched blood, but not to give any more O negative blood, and also if I 

was concerned about infection, which we were, that we should consult an infectious disease 

doctor to get their opinion with regards to steroids.” (Emphasis added.) Dr. Bolton then testified, 

“based upon that,” she immediately contacted Dr. John Farrell, the on-call infectious disease 

specialist. When asked what her understanding of the treatment plan was, based upon her 

consultation with Dr. Farrell, Dr. Bolton responded, “it was my understanding that steroids could 

weaken his immune system, and so we should proceed with caution, and therefore, it was my 

understanding that we should not give steroids at this point.” 
7 

¶ 13 Dr. Bolton then immediately called Dr. Balagani, communicated both of the specialists’ 

treatment recommendations, and told him how sick Donald was “because [she] was still worried 

about him.” Dr. Bolton testified that, after weighing the benefits against the risks, Dr. Balagani 

recommended that they give Donald IVIG and steroids,1 but he “agreed that we needed to try to 

get cross-matched blood and not to give any more O negative blood.” Dr. Bolton noted in the 

medical record that Dr. Balagani “did not want any more blood transfused.” In her testimony, Dr. 

Bolton explained that Dr. Balagani meant no more un-crossmatched blood, which Dr. Balagani 

confirmed in his own testimony.2 She stated that Dr. Balagani gave her this order sometime after 

her consultation with Dr. Thomas. Dr. Bolton testified that she ordered everything that she and 

Dr. Balagani agreed upon “based on Dr. Farrell and Dr. Thomas’ recommendations.” 

¶ 14 However, during cross-examination, Dr. Bolton admitted that there was nothing in the 

medical record, including her own notations, suggesting that Dr. Thomas had told her not to 

transfuse any more O negative blood; Dr. Bolton’s notation merely stated that Dr. Balagani “did 

not want any more blood transfused.” Moreover, Dr. Bolton admitted that the medical record 

reflected that Dr. Thomas recommended that steroids and IVIG be given to treat Donald’s 

condition and that there had been no recommendation to delay these treatments. 

¶ 15 OSF’s blood bank was having difficulty crossmatching Donald’s blood, so they 

transferred the job to the Red Cross blood bank. They said they “had never seen anything like 

this when trying to crossmatch blood.” Dr. Bolton testified that, by midnight, the blood bank 

still did not know when it would be available; they said it could be hours, or it could be the next 

day. Dr. Bolton urged them to get it done as soon as possible. She testified that, based on her 

1

 It was decided afterwards to hold off on steroids until they further evaluated Donald’s condition 

because they did not want to weaken his immune system.

2

 According to Dr. Bolton, Dr. Balagani told her not to give more O negative blood out of 

concern that they would be adding more antibodies that would cause him to hemolyze faster. 
8 

conversation with Dr. Thomas, she believed Donald needed blood, but only crossmatched blood. 

Dr. Bolton ordered IVIG at 10:53 p.m. However, the pharmacy did not fill that order until 12:50 

a.m. Dr. Bolton ordered steroids to be administered at 12:49 a.m., but that order was not filled 

until 1:18 a.m. and steroids were not given to Donald until approximately 2:00 a.m. IVIG and 

steroids can take hours or even days to take effect. 

¶ 16 At approximately 2:35 a.m., Donald stopped breathing and his heart rate dropped 

precipitously. A “code blue” was called two minutes later. (Before he coded, Donald had not 

been complaining of anything and his oxygen levels were normal.) During the code, an IVIG 

treatment was given and Donald’s hemoglobin was tested at 5.4 g/dL. Donald was intubated at 

2:45 a.m. and again 3:05 a.m. However, efforts to revive him were unsuccessful. Donald was 

given two additional units of O negative blood at 3:08 a.m. and 3:14 a.m. Dr. Bolton later 

testified that Donald was “already dead” at that time. Donald was pronounced dead at 3:40 a.m. 

An autopsy performed at the family’s request revealed “no anatomic cause of death” and no lung 

infection or other infection. The death certificate signed by Dr. Balagani identified the cause of 

death as cardiac arrest as a result of shock due to HA. 

¶ 17 Angela subsequently filed this medical malpractice action. The Thomas defendants filed 

a motion for summary judgment, arguing that Dr. Thomas owed no duty of care to Donald due to 

his status as an on-call consulting physician. The trial court granted the motion, ruling that, as a 

matter of “public policy,” the duration of the contact between Drs. Thomas and Bolton was 

insufficient to establish a doctor/patient relationship or a duty of care. 

¶ 18 Before the matter proceeded to trial, Angela filed a motion in limine to bar defense 

counsel from asking questions that would suggest that Dr. Thomas was the sole cause of 

Donald’s death. In support of her motion, Angela noted that no expert had opined that Dr. 
9 

Thomas was the sole cause of Donald’s death and argued that it would be highly inflammatory to 

imply as much to the jury. The trial court granted Angela’s motion “as to duty, breach, and 

violation of the standard of care.” The court reasoned that allowing the defendants to suggest that 

Dr. Thomas had breached the standard of care or was negligent in any fashion would conflict

with the court’s prior ruling that Dr. Thomas owed no duty of care to Donald. However, the 

court ruled that the defendants were not barred from inquiring or presenting evidence regarding 

“Dr. Thomas’ role in the treatment and advice given.” 

¶ 19 The Balagani defendants later sought to present evidence suggesting that Dr. Thomas was 

the sole proximate cause of Donald’s death. Specifically, they sought to cross-examine Dr. 

Charles Abrams, Angela’s testifying expert hematologist, about some of his prior opinions about 

Dr. Thomas’s conduct in treating Donald.3 In his Illinois Supreme Court Rule 213 disclosures, 

Dr. Abrams opined that Dr. Thomas had breached the standard of care by failing to recommend 

the immediate resumption of blood transfusions. Dr. Abrams further opined that: (1) “[a]n ICU 

physician does not typically contact the on-call hematologist at 11:45 p.m. unless the 

hematologist’s advice is urgently sought”; (2) Dr. Thomas “should have obtained a complete 

picture of Mr. McIntyre’s condition and stability,” which “is difficult to do over the telephone”; 

(3) if Dr. Thomas had any uncertainty about the situation, Dr. Thomas “should have come to the 

hospital that night to personally evaluate [Donald]”; (4) Dr. Thomas “should have made sure (at 

the time of Dr. Bolton’s phone call) that steroids, IVIG, and blood transfusion were already on 

board and being given to Mr. McIntyre.”; (5) Dr. Thomas failed to obtain a complete evaluation 

of the serial hemoglobin values that were available and failed to assure that Donald was 

“expeditiously being given the appropriate medications by the ICU team to treat autoimmune 

3 Angela retained Dr. Abrams to establish the standard of care for a hematologist under the 

circumstances, and Dr. Abrams had issued his initial expert report before Dr. Thomas was dismissed as a 

defendant. 
10 

[HA],” (i.e., “steroids and IVIG”); (6) Dr. Thomas “appeared to have failed to inquire about the 

status of *** McIntyre’s blood transfusions and to have advised and strongly advocated for 

additional blood to be given immediately to Mr. McIntyre.”; (7) Instead, Dr. Thomas “decided to 

wait until the next morning to assess Mr. McIntyre in person”; and (8) “[h]ad Dr. Thomas 

created the appropriate sense of urgency at the time of the 11:45 p.m. phone call (by coming to 

the hospital himself or even over the telephone) and advocated for the immediate resumption of 

O-negative blood transfusions, [Donald] would likely be alive today. [Dr. Thomas’s] failure to 

do so was beneath the standard of care.” 

¶ 20 Similarly, during his subsequent discovery deposition, Dr. Abrams explicitly faulted Dr. 

Thomas for “not doing what was necessary to keep [Donald] alive that night.” Specifically, Dr. 

Abrams testified that Dr. Thomas “should have inquired further and determined what the 

hemolysis process was from the lab values and ordered blood [transfusions].” Dr. Abrams 

testified that “[w]hat is relevant is that a medical team was calling a specialist that treats this 

specific disease. The medical team might know all the relevant information, they might not. It’s 

up to Dr. Thomas to solicit all that he needs to know.” When asked whether he “knew the answer 

to that question,” Dr. Abrams stated, “[e]ither he did and made an egregious error, or the error 

was in not soliciting the information.” 

¶ 21 Counsel for the Balagani defendants sought to question Dr. Abrams about these opinions 

and about his opinion regarding the proximate cause of Donald’s death. Before questioning Dr. 

Abrams on these matters, defense counsel asked the court to clarify its prior in limine ruling 

regarding Dr. Thomas and proximate causation issues. The court clarified that the defendants 

were not prohibited from suggesting that Dr. Thomas was the sole proximate cause of the 

injuries suffered by Donald provided that there was “expert testimony to say something of that 
11 

nature” or evidence of “reliance by somebody that was in the chain of circumstance.” The court 

explained that the prior order on Angela’s motion in limine did not preclude the defendants from 

suggesting that Dr. Thomas was the sole proximate cause of Donald’s death. Instead, that ruling

addressed whether Dr. Thomas owed a legal duty to Donald, not whether Dr. Thomas performed 

some act which was a proximate cause of Donald’s injuries. Accordingly, the court concluded 

that the defendants were not barred from showing that Dr. Thomas performed some “intervening 

or superseding act” that, “just like any other intervening circumstance, whether it was an 

ambulance crash on the way to the hospital or any other number of things,” could be inferred 

from the evidence to be the sole proximate cause of the injury. The court also stated that 

testimony supporting such an inference was “admissible for that purpose,” and “would not be 

barred by any prior ruling.” Nor was there any reason that such testimony should be “otherwise 

limited.” In sum, the trial court ruled that the defendants could delve into Thomas’s role in 

proximately causing Donald’s death if they could establish by competent evidence that “others 

relied upon [Dr. Thomas’s] guidance,” and “the jury needs to decide whether that was the cause, 

sole proximate cause, or not.” 

¶ 22 During cross-examination, Dr. Abrams testified that he had initially opined that Dr. 

Thomas was at fault for not instructing Dr. Bolton that Donald was to receive continuous blood 

transfusions to stabilize him, but that his opinion changed after he read Dr. Thomas’s 

supplemental deposition wherein Dr. Thomas retracted his earlier testimony that he had ordered 

no O-negative blood to be transfused. In response, Dr. Balagani’s counsel stated, “[well] we’ll 

ask Dr. Thomas about that, I guess.” On redirect, Angela’s counsel asked whether Dr. Thomas’s 

statement in his supplemental deposition that “I clearly told them to give blood” was what 

changed Dr. Abrams’s mind. Dr. Abrams responded in the affirmative. 
12 

¶ 23 Based on Dr. Abrams’s Rule 213 disclosures, the Balagani defendants attempted to make 

an offer of proof that Dr. Abrams, if called to the stand, would testify that Dr. Thomas breached 

the standard of care and that such breach was the sole proximate cause of Donald’s death. The 

trial court initially granted the oral offer of proof but then reversed its ruling when Angela’s 

counsel withdrew her concurrence and defense counsel was unable to cite to any “sole proximate 

cause” opinion in Dr. Abrams’s Rule 213 disclosures. Defense counsel later presented a new 

offer of proof without any reference to Dr. Thomas as the “sole” proximate cause. The trial court 

stood on its prior ruling. Specifically, the court stated: 

“the defense may certainly show Dr. Thomas’ role and the defense has indicated 

that they’re showing reliance upon Dr. Thomas’ advice as a consult. But in order 

for there to have been a violation of standard of care, there would have to have 

been a duty of care and the law of this case pursuant to previous rulings adopted 

by this Court is that there was no doctor-patient relationship between Dr. Thomas 

and [Donald] and, therefore, no duty. Whether the advice was in error or not does 

not really become the issue. The issue is the reasonable reliance on that advice by 

[the defendants] and, therefore, the previous rulings of the Court with regard to 

Dr. Thomas’s testimony and liability are again confirmed by this Court.” 

¶ 24 On several occasions during the trial, Dr. Bolton attempted to testify as to what Dr. 

Thomas told her regarding Donald’s treatment. Each time, Angela’s counsel objected on hearsay 

grounds. The trial court sustained the objections and ordered Dr. Bolton to testify only as to her 

side of the conversation (i.e., what she said to Dr. Thomas). Each time, the court instructed the 

jury to disregard any testimony that Bolton gave regarding what Dr. Thomas had told her. The 

court also allowed Dr. Bolton to testify, over an objection from Angela’s counsel, about her 
13 

“understanding” of the treatment plan based upon her consultation with Dr. Thomas. Moreover, 

as noted above, Dr. Bolton testified on at least one occasion that her and Dr. Balagani’s 

treatment of Donald was “based on” Dr. Thomas’s recommendations. However, Dr. Bolton was 

not allowed to testify regarding what Dr. Thomas had said to her. 

¶ 25 Moreover, the trial court granted Angela’s motion in limine to bar the Balagani

defendants from asking Dr. Farrell about the duty of a consulting physician “in a back door 

attempt to impugn” Dr. Thomas’s conduct. In granting Angela’s motion, the court ruled that the 

defendants would not be allowed to use this line of questioning to “cast aspersions upon other 

consultants,” specifically Dr. Thomas. Defense counsel never called Dr. Thomas to the stand to 

ask him what he had told Dr. Bolton regarding Donald’s care. 

¶ 26 Every expert that testified at trial, including Angela’s experts, agreed that it was within 

the standard of care for the treating ICU doctors to consult with a hematologist to guide Donald’s 

care. Beyond that, however, several of the experts disagreed as to the specific standard of care 

for treating the type of HA that Donald was suffering from when he was admitted to the MICU. 

Specifically, the experts disagreed on whether the standard of care required that Donald be given 

transfusions of un-crossmatched (O-negative) blood to replace his lost red blood cells. 

¶ 27 Dr. Abrams opined that, while crossmatched blood should be given when there is “plenty 

of time,” severely anemic patients with aggressive HA like Donald must be transfused with uncrossmatched, O-negative blood. According to Dr. Abrams, O-negative blood is acceptable for 

everyone and will not be hemolyzed (destroyed) by a severely anemic patient any faster than the

patient’s own red blood cells. Moreover, because Donald had not experienced an adverse 

reaction to the first transfusion with O-negative blood at 5:30 p.m., his doctors should not have 

hesitated to give him more O-negative blood later that evening. Dr. Abrams also opined that the 
14 

treatment for autoimmune HA also involves the administration of IVIG and steroids. The blood 

transfusions provide fresh red blood cells, which keeps the patient alive while the IVIG and 

steroids work to quell the immune response and cure the disease. Dr. Abrams opined that the 

ICU doctors’ failure to give Donald more transfusions of O-negative blood, coupled perhaps 

with their failure to administer steroids and IVIG in a timely manner, caused Donald’s death. 

¶ 28 Similarly, Dr. Timothy Albertson, Angela’s liability expert, opined that: (1) as the 

attending critical care physician managing the MICU, Dr. Balagani was “ultimately responsible” 

for Donald’s care, and he should have known how to treat autoimmune HA; and (2) Dr. 

Balagani’s failure to maintain Donald’s hemoglobin levels by giving repeated (un-crossmatched) 

blood transfusions and his failure to give IVIG and steroids earlier in the day deviated from the 

standard of care and was a cause of Donald’s death.

¶ 29 Two defense experts disagreed. Dr. Martin Tobin testified that giving more blood to 

Donald would have further accelerated the hemolysis, essentially “adding fuel to the fire.”

Another defense expert, Dr. DeBoisblanc, testified that he also would not have given Donald 

more blood, for several reasons. First, he opined that the anemia Donald was experiencing was 

not necessarily life threatening, and that he saw patients all the time “walking around” with 

hemoglobin levels in the threes (lower than Donald’s). Thus, in Dr. DeBoisblanc’s opinion, there 

was something else aside from his low hemoglobin count that was driving Donald’s illness. In 

addition, Dr. DeBoisblanc noted that the elevated lactic acid in Donald’s blood meant that there 

was something wrong with the whole body; multiple organs were unable to utilize or process 

oxygen. Moreover, the hemoglobin inside red blood cells is toxic, and when a red blood cell is 

destroyed, it releases “free hemoglobin” into the bloodstream, which Dr. DeBoisblanc compared 

to having “Clorox bleach in your bloodstream.” The body normally produces a substance called 
15 

haptoglobin to scavenge up the free hemoglobin, but if the hemolysis is brink, the haptoglobin 

cannot keep up and it is left to the kidneys to filter out the toxins. When the kidneys become 

overwhelmed, the patient ends up with blood in the urine, which is what happened to Donald. Dr. 

DeBoisblanc opined that more transfusions of O-negative blood would have worsened the 

problem because it would produce more free hemoglobin. In Dr. DeBoisblanc’s opinion, the 

hemolysis that Donald was experiencing was too rapid to allow the free hemoglobin to be 

cleared from his body; it was a fatal case, no matter what anyone did for him. 

¶ 30 The experts presented similar but somewhat differing opinions as to whether and to what 

extent a critical care ICU doctor should know how to treat a rare condition like the autoimmune 

HA that Donald was experiencing when he was admitted to the MICU. Dr. Balagani testified that 

a critical care doctor is a generalist whose role is to stabilize the patient until the relevant 

specialist takes over. Critical care doctors “rely on their consultants.” According to Dr. 

Balagani, HA is not something usually treated in an ICU and the extremely aggressive form of 

HA that Donald experienced was very unusual. For HA that complicated, Dr. Balagani wanted to 

“make sure our consultants were there.” 

¶ 31 Similarly, Dr. Tobin testified that: (1) it was appropriate for Drs. Balagani and Bolton to 

wait for a hematology consult until the time period when Dr. Thomas was called; (2) HA is 

typically not an emergency requiring emergent care and treatment, and patients with autoimmune 

HA are typically not seen and treated in the ICU; (3) the standard of care did not require Drs. 

Balagani and Bolton to be experts in the treatment of HA in the critical care setting; and (4) Dr. 

Balagani’s approach to treating Donald in the face of autoimmune HA was appropriate. Another 

defense expert, Dr. Morey Blinder, testified that Donald had a rare form of HA that intensive 

care doctors do not typically treat, and that the MICU team should not be faulted for a lack of 
16 

experience in dealing with this rare condition. Dr. Blinder further opined that: (1) “[t]here is very 

little expertise outside the area of hematology with respect to the diagnosis and treatment of 

[HA]”; (2) “[t]here is even less experience, even among hematologists, regarding the diagnosis, 

care, and treatment of autoimmune [HA]”; and (3) there is greatly limited experience on the part 

of hematologists in treating autoimmune [HA] mixed type.” 

¶ 32 As noted above, Dr. Albertson, Angela’s liability expert, opined that Dr. Balagani was 

“ultimately responsible” for Donald’s care, and he should have known how to treat autoimmune 

HA. However, Dr. Albertson also acknowledged that it was “perfectly reasonable” for Drs. 

Balagani and Bolton to rely upon the advice they received from hematology. Moreover, Dr. 

Abrams testified that the hematologist (Dr. Thomas) had superior knowledge about 

hematological problems and that, under the circumstances of this case, he would expect Drs. 

Balagani and Bolton to rely upon direction from the hematologist. 

¶ 33 During cross-examination, Dr. DeBoisblanc testified that, even after having discussions 

with a consultant, it was the critical care physician’s decision whether or not the patient needs 

more transfusions. He further testified that: (1) IVIG and steroids were well-known therapies for 

HA which were administered to reverse the process causing hemolysis; (2) it is appropriate to 

treat HA patients with steroids even if infection is suspected as a cause; and (3) Donald was 

never diagnosed with an infection. 

¶ 34 Angela presented the following evidence as to damages. Angela testified that Donald 

worked at RLI Insurance (RLI) for 23 years, starting as inventory clerk, and then working his 

way up to becoming a vice president of RLI and running its print shop. Angela worked with 

Donald at RLI for 17 years. She testified that Donald was a healthy and very active man who 

worked long hours, took his work seriously, and had a great relationship with clients. It was 
17 

Donald’s dream to run his own printing business. When he floated the idea to some of RLI’s 

clients, they told him that he was so good at what he did that they would take their printing needs 

to Donald’s upstart business. Donald left RLI in 2007, built an annex to his house where he 

could run the business, and took out a $40,000 bank loan to purchase the necessary printing 

equipment. By 2008, he was receiving a lot of business from former RLI clients (including 

CEFCU and others) and attracting new clients. These clients wanted Donald to perform larger 

jobs, which required him to buy larger printing equipment and expand his business. According 

to Angela, Donald was busy up until the time of his hospitalization in September 2009 and it 

appeared that Donald’s plan to grow the business was working. Donald was very happy and 

content with how the business was progressing. 

¶ 35 Tim Kruger, Donald’s former coworker, also testified on Angela’s behalf. Kruger was a 

former chief account comptroller and treasurer at RLI. Kruger worked alongside Donald and 

frequently interacted with him in the print shop. Kruger testified that Donald was an extremely 

hard worker who spent long hours in the print shop and had a desire to satisfy his customers. 

Kruger further testified as to Donald’s ingenuity and resourcefulness by describing how Donald 

had developed and implemented a plan to utilize RLI’s print shop for external customers so that 

the printing machinery, which was often idle when not being used for printing at RLI, could be 

turned into a profit center, thereby bringing in more revenue to RLI. 

¶ 36 Curtis Wardelman, a Certified Public Accountant and a close friend of Angela’s and 

Donald’s, also testified. Wardelman met Donald through RLI. He did consulting work for RLI 

and handled financial matters for some of RLI’s executives. Wardelman testified that he 

observed Donald’s work habits and abilities for many years. He stated that Donald was an 

extremely hard worker who arrived at work by 6:00 a.m. each workday. Donald started out as a 
18 

pressman, then became a production supervisor, then a manager, and then the assistant vice 

president of RLI’s printing and mail systems. Wardelman testified that Donald came up with the 

idea of using RLI’s print shop to generate additional profit from outside clients. Donald 

successfully solicited clients for this venture (including CEFCU and Par-a-Dice Casino), and 

turned RLI’s printing shop from a cost center to a profit center. Wardelman testified that Donald 

had been “very successful” in developing that business model. 

¶ 37 Wardelman testified that Donald approached him in 2006 for professional advice and 

guidance because Donald wanted to build his own printing business. Donald approached 

Wardelman because of their friendship and because Wardelman had experience in planning and 

executing plans to put new businesses together. Wardelman testified that, by the time he left RLI 

in 2006, Donald had a plan to obtain space, equipment, and supplies for the business. Donald 

bought his first printing press and formally started his new business in September 2007. At that 

time, Donald was doing side jobs to augment his income in addition to the six months of income 

he had obtained from RLI upon leaving. Wardelman opined that Donald was developing his 

business “methodically” and was trying to do things in stages, adding further printing presses 

depending how the business was growing. By 2008, the business was growing and Donald 

wanted to grow it even more. Gross sales began to jump. By 2009, Donald appeared to be 

busier and busier. Between January and April 2009 (during the heart of the recession), Donald 

obtained a $40,000 loan to purchase two new, larger, multiple color printing presses in order to 

meet the increasing demands of his clients. Wardelman testified that Donald was “extremely 

busy” thereafter and that it was Wardelman’s impression that Donald’s business was growing 

and would continue to grow. Donald was doing work for CEFCU, Par-A-Dice, and the Peoria 
19 

Civic Center. RLI was getting out of the printing business at that time, and Donald had 

maintained contacts with RLI’s former clients and was soliciting their business. 

¶ 38 Wardelman stated that Donald’s printing business had a net loss of $24,000 in 2007, but 

turned a profit of $11,000 to $12,000 in 2008 on gross sales of $117,000. According to 

Wardelman, from January 1, 2009, through the date of Donald’s death in September 2009, 

Donald’s business had gross sales of $65,000 with a net income of approximately $15,000. 

When asked to explain the figures for 2009, Wardelman admitted that there was “some hesitation 

about 2009” because Donald’s software systems for his printing business were password 

protected “so we were never able to get into the software to see what was there.” When 

Angela’s counsel tried to solicit Wardelman’s opinion as to “what type of projected growth the 

business might have,” the trial court sustained defense counsel’s objections based on speculation, 

lack of foundation, and failure to disclose under Rule 213. During cross-examination, 

Wardelman admitted that he had never prepared a formal business plan for Donald’s business 

and was not aware of such a plan. He also admitted that he could not say one way or the other 

whether the business would have “taken off” or “failed.” 

¶ 39 Wardelman further testified that, after Donald died in September 2009, the business 

completely stopped because there was no one to run it. All of the printing presses and other 

equipment had to be liquidated, and Angela had to take a loss while wrapping up the business. 

¶ 40 Prior to trial, Angela disclosed an expert witness, economist Dr. Edward Sattler, to 

provide opinion testimony on the projected growth of Donald’s printing business. Dr. Sattler 

purportedly would have testified that Donald’s business would have steadily increased its profits 

and would have yielded a profit of $125,000 by 2013. OSF moved in limine to bar Dr. Sattler’s 

testimony as speculative and without foundation. The trial court denied the motion, ruling that 
20 

OSF’s objections were to the weight of Dr. Sattler’s proposed opinion, not its admissibility. 

Nevertheless, Angela never called Dr. Sattler at trial.

¶ 41 During closing argument, Angela’s counsel told the jury that he would make suggestions 

based upon the evidence with regard to Donald’s background and experience, the history of his 

being successful in providing for his family and his income growth, his previous occupational 

history, and evidence of his industriousness and occupational abilities. Counsel noted that his 

argument was merely a suggestion and that it was up to the jury to choose what it believed was 

appropriate. At one point during closing, Angela’s counsel argued as follows: 

“I’m going to estimate that by 2013 Donald was making right around or a little bit 

more than he was when he left RLI. I think that’s conservative, but you may 

disagree and that’s up to you. So I’m going to pick—I believe the last salary was 

$117,000. I’m going to suggest that if you estimate that he would have made 

income of $125,0000 from his business and that projects out through 2028 where 

he would have been age 67, that would be a total of $2 million in gross income. 

Now, the law says that you’re going to have to adjust this for what they call 

present cash value *** So I’m estimating that over that period of time, I think 

being conservative to age 67 it would be $1,250,000 today.” 

¶ 42 During the jury instruction conference, the trial court approved the jury instruction 

tendered by Angela, which was a very slightly modified version of Illinois Pattern Jury 

Instruction, Civil, No. 31.04 (2007) (hereinafter IPI Civil (2007) No. 31.04), the jury instruction 

governing the determination of damages for wrongful death that are recoverable by a widow or 

next of kin. IPI Civil (2007) No. 31.04 reads, as follows: 
21 

“If you decide for the plaintiff on the question of liability, you must then 

fix the amount of money which will reasonably and fairly compensate the [lineal 

next of kin, e.g., widow] of the decedent for the pecuniary loss proved by the 

evidence to have resulted to the [lineal next of kin] of the decedent. “Pecuniary 

loss” may include loss of money, benefits, goods, services, [and] society [and 

sexual relations].

Where a decedent leaves [lineal next of kin], the law recognizes a 

presumption that the [lineal next of kin] have sustained some substantial 

pecuniary loss by reason of the death. The weight to be given this presumption is 

for you to decide from the evidence in this case. 

In determining pecuniary loss, you may consider what the evidence shows 

concerning the following: 

[1. What (money,) (benefits,) (goods,) (and) (services) the 

decedent customarily contributed in the past;] 

[2. What (money,) (benefits,) (goods,) (and) (services) the 

decedent was likely to have contributed in the future;] 

[3. Decedent's personal expenses (and other deductions);] 

[4. What instruction, moral training, and superintendence of 

education the decedent might reasonably have been expected to give his 

child had he lived;] 

[5. His age;] 

[6. His sex;] 

[7. His health;] 
22 

[8. His habits of (industry,) (sobriety,) (and) (thrift);] 

[9. His occupational abilities;]

[10. The grief, sorrow, and mental suffering of next of kin;] 

[11. The relationship between [lineal next of kin, e.g. son] and 

[decedent].] 

[12. The marital relationship that existed between 

[widow/widower] and [decedent].] 

[Widow/widower] is not entitled to damages for loss of 

[decedent's] society and sexual relations after [date of remarriage].”

¶ 43 The trial court gave this instruction to the jury almost exactly as written above except it 

inserted the names of Donald and his wife and children throughout and omitted the final sentence 

of the pattern instruction and the parenthetical phrase “and other deductions” from item number 

3 of the pattern instruction. 

¶ 44 Following the trial, the jury returned a verdict: (1) in favor of Angela and against the 

Balagani defendants; (2) in favor of Angela and against OSF as to Dr. Balagani’s apparent 

agency and OSF’s derivative liability for Dr. Balagani’s negligence; (3) in favor of Dr. Bolton 

and against Angela as to Dr. Bolton’s alleged negligence; and (4) in favor of OSF and against 

Angela as to Angela’s claim for institutional negligence. The jury awarded Angela damages in 

the amount of $1.1 million for loss of money, goods, and services, and $500,000 for loss of 

society. The jury apportioned 70% responsibility to Dr. Balagani and 30% responsibility to OSF. 

¶ 45 Angela subsequently filed a posttrial motion for new trial on damages only, arguing that 

the jury’s award of $500,000 for loss of society was grossly inadequate. The trial court denied

Angela’s motion. 
23 

¶ 46 The Balagani defendants filed posttrial motions challenging the jury’s award for lost 

future earnings. The trial court denied the defendants’ motions. The court ruled that the jury 

“had more than sufficient evidence *** upon which to find and from which to infer the 

industriousness of the decedent and his likely future income and support of his family.” The 

court was not concerned with the issue whether the jury was advised of Donald’s “last income” 

so long as the jury did not use such evidence as a “multiplication factor to determine damages,” 

which it “obviously” did not. The court ruled that the evidence of Donald’s most recent income 

was “part of industriousness,” and noted that there was a “great deal of other evidence” from 

which the jury could infer damages, including other evidence of Donald’s industriousness and 

evidence of the nature of his work habits, his intentions for his business, and the potential 

income. The court found that, even if the income from Donald’s business was “far less” than it 

was, “still the jury could easily inferred fand allowed damages in the amount that they did.” 

With regard to the jury’s apportionment of damages, the court ruled that the jury was properly 

instructed and “had sufficient evidence before [it] to render the apportionment” that it did.

¶ 47 These consolidated appeals followed. 

¶ 48 After Angela filed her appellant’s brief (and two days before the expiration of the twiceextended deadline for the Balagani defendants to file their appellees’/cross-appellants’ briefs), 

the Balagani defendants moved in the trial court for leave to supplement the record on appeal 

with various documents, including a set of numbered jury instructions, which included proposed 

instructions tendered by the defendants that the trial court had rejected. This court suspended 

briefing so the Balagani defendants could file a written motion to supplement the record in the 

trial court, which they subsequently filed with the trial court. Angela objected to the motion, 

arguing that the Balagani defendants should not be allowed to supplement the record with the 
24 

numbered jury instructions because they failed to act with diligence in supplementing the record 

and because the document at issue was not an original document presented to the trial court and 

file-stamped by the clerk. The trial court granted the motion over Angela’s objection. Angela 

also appeals the trial court’s ruling on this issue. 

 

¶ 49 ANALYSIS

¶ 51 Angela, the Balagani defendants, and OSF have each appealed aspects of the trial court’s 

judgment. We address each of their arguments in turn. 

¶ 52 I. Angela’s Appeal

¶ 53 On appeal, Angela argues that the trial court erred when it (1) granted summary judgment 

in favor of the Thomas defendants, (2) denied her posttrial motion for a new trial as to damages, 

and (3) granted the Balagani defendants’ motion to supplement the record on appeal. 

¶ 54 A. Summary Judgment in Favor of the Thomas Defendants

¶ 55 As an initial matter, the Thomas defendants argue that this court lacks jurisdiction to 

consider the propriety of the trial court’s summary judgment order because Angela filed her 

notice of appeal prematurely, i.e., after the trial court entered judgment on the jury’s verdict but 

before the court ruled on the pending postjudgment motions. 

¶ 56 Illinois Supreme Court Rule 303(a) states, in relevant part, as follows: 

“(1) The notice of appeal must be filed with the clerk of the circuit court within 30 

days after the entry of the final judgment appealed from, or, if a timely posttrial 

motion directed against the judgment is filed, whether in a jury or a nonjury case, 

within 30 days after the entry of the order disposing of the last pending 
25 

postjudgment motion directed against that judgment or order, irrespective of 

whether the circuit court had entered a series of final orders that were modified 

pursuant to postjudgment motions. * * * 

(2) When a timely postjudgment motion has been filed by any party, whether in a 

jury case or a nonjury case, a notice of appeal filed before the entry of the order 

disposing of the last pending postjudgment motion, or before the final disposition 

of any separate claim, becomes effective when the order disposing of said motion 

or claim is entered.” Ill. S. Ct. R. 303(a)(1), (2) (eff. June 4, 2008). 

¶ 57 On February 1, 2013, the trial court granted the Thomas defendants’ motion for summary 

judgment. In that order, the court stated that it was considering entering a Rule 304(a) finding as 

to that order and directed the parties to make recommendations on that issue. On February 12, 

2013, the court made a Rule 304(a) finding and stated that there was no just reason for delaying 

either enforcement or appeal, or both, of the court’s February 1, 2013, order. Angela filed a 

motion to vacate the court’s Rule 304(a) finding and a motion to reconsider. On March 18, 2013, 

the court denied Angela’s motion to reconsider and granted her motion to vacate the Rule 304(a) 

finding. The court entered judgment on the jury’s verdict on March 28, 2014. Thereafter, Angela 

and the Balagani defendants filed posttrial motions. On July 17, 2014, Angela filed her notice of 

appeal seeking review of the court’s summary judgment order. The court disposed of the 

posttrial motions on September 9, 2014. 

¶ 58 The Thomas defendants argue that Angela’s notice of appeal filed on July 17, 2014, was 

ill-timed because it was filed more than 30 days after the entry of the jury’s verdict on March 28, 

2014, and before the September 9, 2014, rulings on the last pending posttrial motions. In 

response, Angela argues that although her notice of appeal was premature, it became effective 
26 

upon the court’s ruling on the posttrial motions on September 9, 2014, and was therefore timely 

and sufficient to confer jurisdiction upon this court. 

¶ 59 Under Rule 303(a)(2), “when [a] court renders a decision on a timely filed postjudgment 

motion ***, a premature notice of appeal takes effect when the court enters the order disposing 

of the last posttrial matter.” In re Estate of Hanley, 2013 IL App (3d) 110264, ¶ 43. Here, 

Angela’s notice of appeal as to the Thomas defendants was premature. However, once the trial 

court ruled on the last pending posttrial motions on September 9, 2014, the premature notice of 

appeal became effective. Thus, this court has jurisdiction to consider Angela’s appeal of the trial 

court’s grant of summary judgment to the Thomas defendants. See id.

¶ 60 Next, the Thomas defendants argue the summary judgment issue is moot and Angela is 

judicially estopped from pursing her claim against the Thomas defendants. Without any citation 

to authority, the Thomas defendants argue this issue is moot because Angela “obtained a 

monetary judgment in her favor in the amount of $1.6 million, and until such time as this Court 

reverses that judgment and remands the matter for a new trial, the issue of summary judgment 

*** is moot.” The Thomas defendants also argue that this issue is moot because, even if they 

were found liable, Angela was fully compensated. Additionally, the Thomas defendants argue 

that the doctrine of judicial estoppel prevents Angela from pursuing her claim against them 

because she went to trial with the Balagani defendants under the theory that they were liable for 

Donald’s death. In response, Angela argues that the issue is not moot, judicial estoppel does not 

apply, and the Thomas defendants should be sanctioned for raising these arguments. 

¶ 61 “An issue is moot when intervening events have rendered it impossible for a reviewing 

court to grant the complaining party effectual relief.” Wilson v. Jackson, 312 Ill. App. 3d 1156, 

1162-63 (2000). Angela’s appeal of the trial court’s grant of summary judgment to the Thomas 
27 

defendants is not moot just because other defendants were found liable for Donald’s death and 

Angela obtained a money judgment against them. As Angela notes, even though the jury’s 

verdict did not pertain to the Thomas defendants, they can still be held responsible if the 

evidence demonstrates that they were a cause in Donald’s death. Thus, the jury’s verdict is not 

an intervening event that has rendered it impossible for this court to grant Angela her requested 

relief, namely, reversal of the trial court’s order granting the Thomas defendants’ motion for 

summary judgment. 

¶ 62 Nor does the jury’s award of damages against OSF and Dr. Balagani moot Angela’s 

appeal of the trial court’s grant of summary judgment in favor of the Thomas defendants. The 

judgment entered against OSF and Dr. Balagani has not yet been satisfied. The trial court has 

stayed execution of the verdict and judgment entered in Angela’s favor pending appeal. Thus, 

contrary to the Thomas defendants’ argument, Angela has not yet ben “fully compensated” in 

this matter. Moreover, even if additional damages cannot be awarded in any future action 

against the Thomas defendants (because the existing award of $1.6 million in damages would 

fully compensate Angela), Angela’s appeal involving the Thomas defendants would not be moot 

because a judgment of liability against the Thomas defendants would entitle Angela to collect 

some or all of those damages from another party (the Thomas defendants). A reversal of 

summary judgment for the Thomas defendants affords Angela the opportunity to obtain a 

judgment against the Thomas defendants, which, if granted, could afford Angela the right to 

secure relief from the Thomas defendants for some or all the losses she, Donald, and her family 

have suffered as a result of the defendants’ negligent actions or failures to act. The opportunity 

to obtain such relief from the Thomas defendants constitutes meaningful and “effectual” relief

regardless of whether Angela also has the ability to collect damages from other defendants. 
28 

Thus, it is not impossible for us to grant effectual relief to Angela by reversing the trial court’s 

grant of summary judgment in favor of the Thomas defendants. The jury’s award of damages 

against OSF and the Balagani defendants does not moot Angela’s appeal of that issue. 

¶ 63 Since we have decided that the summary judgment issue is not moot, we must next 

decide whether judicial estoppel prevents Angela from pursuing her claim against the Thomas 

defendants. Judicial estoppel is an equitable doctrine that was established to protect the integrity 

of the judicial process by prohibiting parties from changing their positions in accordance with the 

exigencies of the moment. Seymour v. Collins, 2015 IL 118432, ¶ 36. Judicial estoppel generally 

applies when a party has (1) taken two positions, (2) that are factually inconsistent, (3) in 

separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to 

accept the truth of the facts alleged, and (5) the party has succeeded in the first proceeding and 

received some benefit from it. Id. ¶ 37. 

¶ 64 Here, the Thomas defendants essentially argue that Angela is changing her position by 

challenging the trial court’s summary judgment order in their favor because she proceeded to 

trial against the Balagani defendants and presented arguments that the Balagani defendants were 

responsible for Donald’s death. The record is clear that Angela proceeded to trial under that 

theory because the trial court had already dismissed the Thomas defendants from the case. The 

theory that Angela presented at trial was an alternative theory that she was left with after the trial 

court granted summary judgment in favor of the Thomas defendants. This was not a change in 

position, but rather, an alternative argument. In any event, the argument Angela presented at trial 

was that the Balagani defendants were a cause of Donald’s death—not the sole cause. It is not 

contradictory for Angela to pursue a claim against the Thomas defendants for also being a cause 

in Donald’s death. Thus, judicial estoppel is inapplicable here. 
29 

¶ 65 Next, we address Angela’s request for sanctions against the Thomas defendants. Angela 

argues that Rule 375(b) sanctions are appropriate for the Thomas defendants’ mootness argument 

because the argument was made without any basis in law and the Thomas defendants failed to 

cite any authority to support their argument. Rule 375(b) provides, in relevant part, as follows: 

“(b) Appeal or Other Action Not Taken in Good Faith; Frivolous Appeals 

or Other Actions. If, after consideration of an appeal or other action pursued in a 

reviewing court, it is determined that the appeal or other action itself is frivolous, 

or that an appeal or other action was not taken in good faith, for an improper 

purpose, such as to harass or to cause unnecessary delay or needless increase in 

the cost of litigation, or the manner of prosecuting or defending the appeal or 

other action is for such purpose, an appropriate sanction may be imposed upon 

any party or the attorney or attorneys of the party or parties. An appeal or other 

action will be deemed frivolous where it is not reasonably well grounded in fact 

and not warranted by existing law or a good-faith argument for the extension, 

modification, or reversal of existing law. An appeal or other action will be 

deemed to have been taken or prosecuted for an improper purpose where the 

primary purpose of the appeal or other action is to delay, harass, or cause needless 

expense.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). 

¶ 66 A reviewing court may impose a sanction upon the motion of another party or on its own 

initiative. Id. Here, Angela did not file a proper motion with this court seeking sanctions. Rather, 

she merely included this request in her responsive brief. Moreover, although the Thomas 

defendants’ mootness argument lacks merit, we do not find the argument to be frivolous. Nor do 

we find that the argument was brought in bad faith or for an improper purpose. Accordingly, we 
30 

decline to impose Rule 375(b) sanctions on our own initiative. 

¶ 67 Next, we reach the merits of Angela’s argument on appeal: whether the trial court erred 

when it granted the Thomas defendants’ motion for summary judgment. The trial court’s ruling 

on a motion for summary judgment is a question of law, which we review de novo. Willie Pearl 

Burrell Trust v. City of Kankakee, 2016 IL App (3d) 150398, ¶ 10. Summary judgment is not 

appropriate when: (1) material facts are disputed; (2) reasonable people could draw diverging 

inferences from the undisputed material facts; or (3) reasonable people could differ on the weight 

given to relevant factors of a legal standard at issue. Seymour, 2015 IL 118432, ¶ 42. 

¶ 68 Angela argues that the trial court erred in granting the Thomas defendants’ motion for 

summary judgment on the basis that Dr. Thomas, as an on-call physician, did not owe Donald a 

duty of care. Angela maintains that a physician-patient relationship existed between Dr. Thomas 

and Donald which gave rise to a duty of care. For the following reasons, we agree with Angela. 

¶ 69 This court recently addressed whether “on-call” physicians owe a duty of care to patients 

for whom attending physicians seek input from the on-call physician. Mackey v. Sarroca, 2015 

IL App (3d) 130219. In Mackey, the court began its analysis by noting, “[t]he central inquiry is 

whether the [on-call] physician has been asked to provide a specific service for the benefit of a 

specific patient.” Id. ¶ 20. The Mackey court examined the facts surrounding the duties and 

responsibilities of the “on-call” physician to determine whether there were indicia that he

provided specific service for the benefit of a specific patient. Id. ¶ 26. Those indicia included: (1) 

whether the consultation was part of established procedures, protocols, or contractual obligations 

with the hospital as opposed to an informal or ad hoc basis; (2) whether the on-call physician (or 

his employer) was compensated for his services; (3) whether the on-call physician ordered or 

interpreted test results; (4) whether the on-call physician gave medical advice regarding the 
31 

subject patient’s care; and (5) whether the on-call physician made decisions regarding the 

patient’s care. Id. ¶¶ 26-27. 

¶ 70 In this case, the trial court focused only on the length of the telephone contact between 

Drs. Thomas and Bolton. The court then determined, as a matter of “public policy,” that the 

duration of the contact between Drs. Thomas and Bolton was insufficient to establish a duty of 

care. The court granted summary judgment on that basis. 

¶ 71 After considering the factors articulated in Mackey, we conclude that the trial court erred 

in finding that Dr. Thomas owed no duty of care to Donald. The record established that Dr. 

Thomas was designated by OSF as the on-call hematologist physician, and as such, was in a 

position to expect to be called upon to render guidance and assistance in treating specific patients 

at OSF. The record further established that the on-call relationship that Dr. Thomas had with 

OSF, through his employer Oncology-Hematology Associates of Central Illinois, was part of a 

formalized patient care regime at OSF where treating/attending physicians were expected to 

contact an on-call specialist for consultation and guidance regarding specific patients as the need 

arose at OSF. The record also established that Thomas’s duty, as the on-call hematologist 

physician, included going to the hospital to render assistance in treatment if deemed necessary. It 

is evident that Dr. Thomas provided a specific service to a specific patient (Donald). Dr. 

Thomas’s consultations were followed pursuant to OSF’s protocol and other contractual 

obligations Dr. Thomas’s employer had with OSF. Dr. Thomas interpreted test results and gave 

medical advice to Dr. Bolton regarding Donald’s care, he was compensated for his consultation, 

and he was expected to come to the hospital to render treatment if it was deemed necessary.

¶ 72 Given these facts, it is clear that the indicia of a duty of care articulated by this court 

in Mackey were present in this case. Thus, the trial court erred as a matter of law when it found 
32 

that the Thomas defendants owed no duty of care to Donald and granted summary judgment in 

their favor. We reverse the trial court’s order granting the Thomas defendants’ motion for 

summary judgment and remand for further proceedings on Angela’s claims against the Thomas 

defendants. 

¶ 73 B. Angela’s Motion for a New Trial 

¶ 74 Next, Angela argues that the trial court abused its discretion when it denied her motion 

for a new trial on damages only. Specifically, Angela argues the jury’s award of only $500,000 

for loss of society was grossly inadequate to compensate her and Donald’s four children, three of 

whom were minors at the time of Donald’s death, for the loss of Donald’s society. 

¶ 75 Upon a finding of liability for a wrongful death, the jury must “fix the amount of money 

which will reasonably and fairly compensate the lineal next of kin * * * for the pecuniary loss 

proved by the evidence.” IPI Civil (2007), No. 31.04; see also Dobyns v. Chung, 399 Ill. App. 3d 

272, 286 (2010). This may include the loss of money, benefits, goods, services, sexual relations, 

and “society.” IPI Civil (2007), No. 31.04. “Society” means “the mutual benefits that each 

family member receives from the other's continued existence, including love, affection, care, 

attention, companionship, comfort, guidance, and protection.” IPI Civil (2007), No. 31.11; 

Dobyns, 399 Ill. App. 3d at 287. Where a decedent leaves lineal next of kin, the law recognizes a 

presumption that the lineal next of kin have sustained some “substantial" pecuniary loss by 

reason of the death. IPI Civil (2007), No. 31.04); Dobyns, 399 Ill. App. 3d at 286-87; Cooper v. 

Chicago Transit Authority, 153 Ill. App. 3d 511, 518-19 (1987). The weight to be given this 

presumption is for the jury to decide from the evidence presented in the case, including, inter 

alia, evidence of the decedent’s past and future contributions, the decedent’s habits of industry 

and thrift, the children's loss of future instruction, moral training, and superintendence of 
33 

education as a result of the decedents death, and the descendants' grief, sorrow, and mental 

suffering and their relationship with the decedent. IPI Civil (2007) No. 31.04; Dobyns, 399 Ill. 

App. 3d at 287. 

¶ 76 The amount of damages to be assessed is a question of fact for the jury to determine. 

Snelson v. Kamm, 204 Ill. 2d 1, 36 (2003). Thus, great weight is given to the jury’s decision on 

damages. Id. at 36-37. Generally, a decision as to whether to grant a new trial is a matter left to 

the sound discretion of the court, and the court’s determination will not be overturned on review 

absent an abuse of discretion. Wade v. Rich, 249 Ill. App. 3d 581, 587 (1993). However, a jury’s 

verdict may be set aside and a new trial ordered where the amount of damages is palpably 

inadequate or against the manifest weight of the evidence, where the jury has clearly disregarded 

a proven element of damages, or where the award bears no reasonable relationship to the loss 

suffered. Wade, 249 Ill. App. 3d 5at 587; Racky v. Belfor USA Group, Inc., 2017 IL App (5th) 

153446, ¶ 127; see also Snelson, 204 Ill. 2d at 37. A judgment is against the manifest weight of 

the evidence where the opposite conclusion is clearly evident or where the jury’s findings are 

unreasonable, arbitrary, and not based on the evidence. Racky, 2017 IL App (5th) 153446, ¶ 

127; 1472 N. Milwaukee, Ltd. v. Feinerman, 2013 IL App (1st) 121191, ¶ 13. 

¶ 77 The jury’s award of $500,000 was manifestly inadequate to compensate Angela and 

Donald’s four children for the loss of Donald’s companionship and society. Donald was only 48 

years old at the time of his death. He was active and physically fit, and he had no chronic health 

conditions before his hospitalization for HA in September 2009. He and Angela had been 

happily married for 19 years, and their three children were minors when Donald died. Angela’s 

and the children’s unrebutted testimony established that Donald was a loving and devoted 

husband and father who was actively involved in his children’s lives. Angela testified that she 
34 

and Donald had been together for 24 years and they had a “wonderful relationship.” She 

described Donald as her “best friend,” her “soul mate,” and the man she was going to live with 

for the rest of her life. Angela and Donald got along very well and were “together all the time.” 

Angela also stated that Donald was very involved in the lives of each of his children. Donald 

had an adult daughter, Keri, from a previous marriage. Donald helped Keri through college and 

he and Angela babysat Keri’s young daughter every weekend while Keri had to work as a 

waitress. Angela testified that Donald had a special relationship with each of his children, he

made time for each child, and he was “always doing special things for each one of them.” He 

taught them right from wrong, was “definitely” “very active” in their moral upbringing, helped 

them with their homework and sports, and “was always making them laugh.” He coached his 

son Braden’s baseball and soccer teams and went fishing and golfing with him. Shortly after

Donald’s death, Braden earned a college scholarship to play baseball, but he ended up declining 

the scholarship and attending another college closer to home because he felt that he needed to be 

with his family and take care of his mother and sisters. Angela testified that Donald was their 

daughter Emilee’s “best friend,” and that he always held and took care of his youngest daughter, 

Samantha, whom Angela described as Donald’s “baby.” 

¶ 78 Keri McIntyre Harvey, Donald’s adult daughter from a previous marriage, testified that 

Donald was “[p]robably the best man” that she had ever known. Donald helped Keri financially, 

fixed things around her house, and took care of Keri’s young daughter when Keri had to work as 

a waitress. Keri saw Donald multiple times per week and Donald was “always helping” Keri, 

her daughter, and the family. Keri described her father as her friend, and she stated that she 

thinks of him every day. She was at the hospital when her father died. Keri regretted that 

Donald had missed her wedding and other important events in the lives of his children. Keri also 
35 

testified that Donald and Angela were passionately in love and were planning to take a trip to 

celebrate their twentieth wedding anniversary at the time of Donald’s death. 

¶ 79 Braden McIntyre, Angela and Donald’s son, was 16 years old when Donald died. On the 

night Donald died, Braden helped Angela tell his younger sisters about their father’s death. 

Braden testified that, prior to his death, Donald had been very involved in coaching and 

supporting Braden’s sports teams (especially baseball) and that he had convinced Braden not to 

quit playing baseball. Braden also stated that Donald had taught him “how to be in a job and 

become a man.” He testified that his father was his “best friend.” At the time of the hearing, 

Braden was attending college near his mother’s home and was helping his mother and sisters as 

much as he could. He was playing baseball at college. 

¶ 80 Emilee McIntyre, Angela and Donald’s elder daughter, was twelve years old when 

Donald died. Emilee testified that the McIntyres were a very close family and that Donald was 

“like a best friend” who coached all of the children’s sports teams, helped Emilee with her 

school work (especially math), took the children to games and played with them often. She 

described Donald as an “active and fun” person who “joked about everything.” Emilee regretted 

that her father did not live to see her graduate from the eighth grade or learn to drive. 

¶ 81 Samantha McIntyre, Donald and Angela’s younger daughter, was eleven years old when 

Donald died. Donald helped Samantha with her math homework and coached her basketball and 

softball teams. Donald also helped Samantha with her pitching and practiced with her at home 

until she became a “really good” pitcher. (Donald also coached Emilee in basketball and 

softball.) Samantha stated that Donald was “so funny” and always know how to make her and 

the other children laugh. She said that she no longer laughs as much since her father’s death. 

¶ 82 Neither Samantha nor any of the children were estranged from Donald at the time of his 
36 

death. To the contrary, each of them was very close to Donald. By all accounts, Donald was a 

loving, caring, and dedicated father who was very involved in all aspects of his children’s lives 

(educational, athletic, moral, recreational). The defendants presented no evidence to rebut 

Angela’s or the children’s testimony on these matters. Thus, the unrebutted testimony clearly 

established that Angela and the children suffered a substantial loss as a result of Donald’s 

untimely death. Under the circumstances presented in this case, the jury’s award of $500,000

bore no reasonable relationship to the family members’ loss of Donald’s society (including his 

guidance and loving support as a devoted husband and father) or the pain and grief they suffered 

as a result. We are mindful of the deference owed to a jury’s damages verdict and we are 

normally reluctant to overturn such a verdict. Given the unrebutted evidence presented in this 

case, however, we find the jury’s verdict to be palpably inadequate and against the manifest 

weight of the evidence. To find that $500,000 (divided among the five survivors) is adequate 

compensation for the loss of Donald’s society would be to trivialize the devastating impact 

Donald’s death had on his family. We therefore reverse the damages verdict for loss of society 

and remand for a new trial on that issue.4

 

¶ 83 C. The Balagani Defendants’ Motion To Supplement Record 

¶ 84 Angela also argues that the trial court erred as a matter of law when it granted the 

Balagani defendants’ motion to supplement the record on appeal. The parties dispute the 

standard of review that governs our analysis of this issue. Angela argues that we should review 

4 We may remand for a new trial on loss of society damages without ordering a new trial on the 

Balagani defendants’ liability in this case because: (1) the jury’s verdict on the Balagani defendants’ 

liability is clear and amply supported by the evidence; (2) the questions of damages and liability are 

sufficiently separate and distinct that a new trial on damages only would not be unfair to the defendants; 

and (3) the record does not suggest that the jury reached a compromise verdict or that the error which 

resulted in the jury’s awarding inadequate damages also affected the jury’s finding on liability. See, e.g., 

Cimino v. Sublette, 2015 IL App (1st) 133373, ¶ 111; Decker v. St. Mary’s Hospital, 249 Ill. App. 3d 802, 

816 (1993). 
37 

the trial court’s ruling de novo, whereas the Balagani defendants argue that the abuse of 

discretion standard applies. 

¶ 85 We agree with the Balagani defendants. This issue does not present a pure matter of 

statutory construction. Rather, it requires us to review the trial court’s attempt to “correct” 

“material omissions or inaccuracies” in the record pursuant to Illinois Supreme Court Rule 329 

(eff. Jan. 1, 2006). We review the trial court’s decision on this issue for abuse of discretion. See 

Joseph D. Foreman & Co. v. Neri, 6 Ill. App. 3d 313 (1972). As noted, an abuse of discretion 

occurs when the trial court’s ruling is arbitrary, fanciful, or unreasonable or where no reasonable 

person would adopt its view. Pavnica, 401 Ill. App. 3d at 740. 

¶ 86 Although the Illinois Supreme Court rules expressly allow supplementation only with 

“original” documents, in this case, the court clerk failed to include the original document of the 

numbered jury instructions in the record and then lost or misplaced that document. (The clerk 

was unable to locate the original document until long after the record on appeal was filed.) 

Angela does not dispute the accuracy of the numbered jury instructions submitted by the

Balagani defendants in their motion to supplement the record or argue that the set of jury 

instructions included in Angela’s counsel’s file differs in any way from the set submitted by the 

Balagani defendants. Thus, the numbered jury instructions do not add any substantive evidence 

to the case. The transcripts show that the instructions submitted by the Balagani defendants were 

given to the jury. The sole purpose of the written numbered instructions submitted by the 

Balagani defendants in their motion to supplement the record was to make the transcript of the 

jury instruction conference intelligible. Angela never questioned the accuracy of the instructions 

submitted by the defendants or the numbering of the instructions. 

¶ 87 Nonetheless, Angela argues that the Balagani defendants waived their right to supplement 
38 

the record due to their lack of diligence. The Balagani defendants sought multiple extensions of 

time in which to file their posttrial motions and then sought multiple extensions of time in which 

to file their briefs on appeal. However, they did not notice the missing jury instructions or move 

to supplement the record until two days before the final deadline to file their appellate briefs.

Nevertheless, under the circumstances presented in this case, we cannot say that the trial court’s

decision to allow motion was contrary to law or an abuse of discretion. 

¶ 88 II. The Balagani Defendants’ Appeal

¶ 89 The Balagani defendants argue that they are entitled to a new trial on liability. They 

contend that the trial court committed reversible error by: (1) barring Dr. Bolton from testifying 

as to the content of her telephone conversation with Dr. Thomas on hearsay grounds; and (2) 

barring evidence that Dr. Thomas had breached the applicable standard of care, thereby 

improperly depriving the Balagani defendants of their main defense (i.e., the argument that Dr. 

Thomas’s negligence was the sole proximate cause of Donald’s death). The Balagani defendants 

also argue that the jury’s liability verdict was against the manifest weight of the evidence. 

Further, the Balagani defendants maintain that the jury erred when it awarded Angela $1.1 

million for lost future income. Because OSF raises this same argument regarding lost future 

income on appeal, we will address it with OSF’s appeal below. 

¶ 90 A. Hearsay

¶ 91 As an initial matter, Angela argues that the Balagani defendants have forfeited their 

hearsay argument by not raising it in their posttrial motion. We disagree. The Balagani 

defendants argued in their posttrial motion that the trial court’s hearsay ruling was “error” and 

that the testimony at issue fell within an unspecified hearsay exception. There is some question 

whether these vague and skeletal arguments were sufficiently specific to preserve the issue for 
39 

appeal, particularly considering that the Balagani defendants’ hearsay argument on appeal seems 

to be somewhat different from the argument raised below. See People v. Williams, 193 Ill. 2d 

306, 347 (2000); People v. Beasley, 307 Ill. App. 3d 200, 207-08 (1999). However, forfeiture is 

an admonition to the parties rather than a limitation on this court's jurisdiction, and it may be 

relaxed where the interests of justice so require. Texaco-Cities Service Pipeline Co. v. McGaw, 

182 Ill. 2d 262, 279 (1998); Lake County Grading Company, LLC v. Forever Construction 

Company, Inc., 2017 IL App (2d) 160359, ¶ 42; Kimble v. Illinois State Board of Education, 

2014 IL App (1st) 123436, ¶ 80; see also Niles Township High School District 219 v. Illinois 

Educational Labor Relations Board, 369 Ill. App. 3d 128, 137 (2006). In the case at bar, we find 

that the interests of justice require us to consider the Balagani defendants’ hearsay argument. 

¶ 92 We conclude that the trial court erred in ruling that the testimony at issue was hearsay 

and by excluding the testimony on that ground. “Hearsay” is a statement, other than a statement 

made by the declarant while testifying at the trial or hearing, offered into evidence to prove the 

truth of the matter asserted. Ill. R. Evid. 801(c) (eff. Jan. 1, 2011); see also Leonardi v. Loyola 

University of Chicago, 168 Ill. 2d 83, 99 (1995). An out-of-court statement offered into 

evidence for some purpose other than to prove the truth of the matter asserted is not hearsay.

People v. Kliner, 185 Ill. 2d 81, 150 (1998). For example, suppose that witness A testifies that 

“B told me that event X occurred.” If A’s testimony is offered for the purpose of establishing 

that B said this, it is clearly admissible. Leonardi, 168 Ill. 2d at 99. However, if offered to prove 

that event X occurred, it is inadmissible. Id. Similarly, an out-of-court statement offered to prove 

its effect on a listener’s mind or to show why the listener subsequently acted as he did is not 

hearsay and is admissible. Fakes v. Eloy, 2014 IL App (4th) 121100, ¶ 124; see also Leonardi, 

168 Ill. 2d at 99; In re Marriage of Roepenack, 2012 IL App (3d) 110198, ¶ 44, abrogated on 
40 

other grounds by Warren County Soil & Water Conservation District v. Walters, 2015 IL 

1177832. 

¶ 93 Here, the trial court erred in excluding as hearsay Dr. Bolton’s testimony regarding what 

Dr. Thompson told her about Donald’s care. This testimony was not offered to prove the truth of 

any factual matter asserted by Dr. Thomas (e.g., that Dr. Thomas’ treatment recommendations 

were correct or medically sound). Rather, it was offered to show the effect of Dr. Thomas’s 

statements upon Drs. Bolton and Balagani, i.e., to show why they subsequently acted as they did.

It could be argued that the statements were also offered to show that Dr. Thomas made certain 

particular statements or treatment recommendations, e.g., Dr. Thomas recommended that no 

further transfusions of O-negative blood be given. But that would also constitute an admissible, 

non-hearsay purpose. Leonardi, 168 Ill. 2d at 99. 

¶ 94 Thus, the trial court erred as a matter of law in finding the testimony at issue to be 

hearsay, and, therefore, abused its discretion by excluding the testimony on hearsay grounds. See 

Peeples v. Village of Johnsburg, 403 Ill. App. 3d 333, 339 (2010) (“A trial court abuses its 

discretion *** where its ruling rests on an error of law”). However, even when an abuse of 

discretion has occurred, we will not reverse the trial court’s judgment on an evidentiary issue 

unless “the record indicates the existence of substantial prejudice affecting the outcome of the 

trial.” In re Leona W., 228 Ill. 2d 439, 460 (2008); Guski v. Raja, 409 Ill. App. 3d 686, 698

(2011); Roepenack, 2012 IL App (3d) 110198, ¶ 44. Accordingly, the dispositive question is 

whether the trial court’s erroneous refusal to admit the evidence at issue resulted in “substantial 

prejudice affecting the outcome of the trial,” and is therefore reversible. Leona W., 228 Ill. 2d at 

460; see also Guski, 409 Ill. App. 3d at 698; Roepenack, 2012 IL App (3d) 110198, ¶ 44. 

¶ 95 In this case, the trial court’s error was not outcome determinative, for several reasons. 
41 

First, Dr. Bolton was allowed to testify about her “understanding” of the treatment plan based 

upon her consultation with Dr. Thomas, and she explicitly testified that the treatments she 

ordered were “based on Dr. Farrell and Dr. Thomas’ recommendations.” Thus, the Balagani 

defendants got the crux of their defense before the jury, even if Dr. Bolton was barred from 

testifying specifically about what Dr. Thomas had told her. Moreover, the Balagani defendants 

could have obviated the trial court’s erroneous hearsay ruling by calling Dr. Thomas and asking 

him what he said to Dr. Bolton. If Dr. Thomas denied telling Dr. Bolton to stop transfusing Onegative blood, as he did in his supplemental deposition, defense counsel could have impeached 

him with his contrary statement in his initial deposition. However, defense counsel chose not to 

do so, presumably for strategic reasons. Further, Dr. Bolton did not note in Donald’s medical

chart that Dr. Thomas told her to stop transfusing O-negative blood. Her entry in the chart 

reflects that Dr. Balagani gave that order, and does not mention Dr. Thomas. Based on that 

evidence, the jury could have reasonably chosen not to believe Dr. Bolton’s account of what Dr. 

Thomas had told her (assuming that Dr. Bolton’s testimony contradicted her entry in the chart), 

even if she had been allowed to testify fully on that issue. Moreover, in response to questioning 

by defense counsel, Dr. Abrams and Dr. DeBoisblanc each reviewed the discovery depositions of 

Dr. Thomas, and each testified that Dr. Thomas had recommended steroids and IVIG, and 

apparently never told Dr. Bolton not to give blood (as Dr. Thomas had understood that the 

defendants were continuing to give blood). The jury could have reasonably credited this 

testimony. Accordingly, the trial court’s erroneous hearsay ruling was harmless. 

¶ 96 B. The “Sole Proximate Cause” Defense 

¶ 97 The Balagani defendants also argue that the trial court erred by improperly barring them 

from presenting evidence that Dr. Thomas had breached the standard of care, which effectively 
42 

prevented them from arguing that Dr. Thomas was the “sole proximate cause” of Donald’s death. 

The defendants correctly note that, because they denied in their answer that their own conduct 

was a cause of Donald’s death, they had a right to present evidence that Donald’s death was 

solely the result of another cause, even if that cause was the conduct of another party not named 

as a defendant in the lawsuit. Leonardi, 168 Ill. 2d at 93-95. The question is whether the trial 

court’s rulings in this case barred the defendants from presenting such evidence. 

¶ 98 In granting Angela’s motion in limine, the trial court apparently initially barred the

Balagani defendants from suggesting that Dr. Thomas breached the standard of care, was 

negligent, or was a proximate cause of Donald’s death. Subsequently, however, the trial court 

clarified that the Balagani defendants could present evidence suggesting that Dr. Thomas was the 

sole proximate cause of Donald’s death if they laid a foundation for such evidence by either 

presenting an expert opinion to that effect or by presenting evidence that they relied on Dr. 

Thomas’s advice in rendering treatment to Donald. Defense counsel was subsequently allowed 

to question expert witnesses, including Drs. Abrams and DeBoisblanc, about their understanding 

of Dr. Thomas’s treatment recommendations and the role of those recommendations in Donald’s 

treatment. Several of the medical experts testified that it was reasonable and to be expected that 

Drs. Balagani and Bolton would rely upon Dr. Thomas’s recommendations in this case. In 

addition, although Dr. Bolton was not allowed to testify as to what Dr. Thomas said to her, she 

was allowed to state that the Balagani defendants’ treatment of Donald was based upon Dr. 

Thomas’s recommendations. Further, during closing argument, Dr. Balagani’s counsel argued 

that Angela’s own experts suggested that it was reasonable for Drs. Bolton and Balagani to rely 

upon the consulting specialists and that those experts felt that the directions provided by Dr. 

Thomas “was the cause of Donald’s death.” Accordingly, contrary to the Balagani defendants’ 
43 

argument, they were not barred from suggesting to the jury that Dr. Thomas’s conduct was the 

sole proximate cause of Donald’s death. 

¶ 99 The Balagani defendants appear to assume that the fact that they were barred from 

suggesting that Dr. Thomas breached the standard of care or was negligent precluded them from 

arguing that Dr. Thomas’s treatment recommendations were the sole proximate cause of 

Donald’s death. We disagree. Proximate causation is a separate issue from negligence or breach 

of duty, and the former may be proven without evidence of the latter. As noted, the defendants 

were allowed to, and did, present evidence suggesting that Dr. Thomas was the sole proximate 

cause of Donald’s death. 

¶ 100 C. Whether the Jury Verdict Is Contrary to Law or 

 Against the Manifest Weight of the Evidence 

 

¶ 101 The Balagani defendants argue that the trial court erred by denying their motions for 

judgment notwithstanding the verdict (JNOV) or a new trial based on the paucity of the evidence 

against them. A judgment notwithstanding the verdict (JNOV) is properly entered in those 

limited cases where all of the evidence, when viewed in its aspect most favorable to the 

opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence 

could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). In ruling on a motion for 

JNOV, a court does not weigh the evidence, nor is it concerned with the credibility of the 

witnesses; rather it may only consider the evidence, and any inferences therefrom, in the light 

most favorable to the party resisting the motion. Id. A JNOV may not be granted merely 

because a verdict is against the manifest weight of the evidence. Id. Alternatively, “[o]n a 

motion for a new trial a court will weigh the evidence and set aside the verdict and order a new 

trial if the verdict is contrary to the manifest weight of the evidence.” Id. at 454. “A verdict is 

against the manifest weight of the evidence where the opposite conclusion is clearly evident or 
44 

where the findings of the jury are unreasonable, arbitrary and not based upon any of the 

evidence.” Id.; see also Redmond v. Socha, 216 Ill. 2d 622, 651 (2005). We review a trial 

court’s denial of a motion for JNOV de novo. Ford v. Grizzle, 398 Ill. App. 3d 639, 650 (2010). 

The standard of review of a trial court's denial of a motion for a new trial is whether the jury's 

verdict was against the manifest weight of the evidence. Friedman by Friedman v. Park Dist. of 

Highland Park, 151 Ill. App. 3d 374, 385 (1986). 

¶ 102 The Balagani defendants argue that they are entitled to a JNOV or a new trial because: 

(1) all of the experts agreed that Donald’s rare condition was outside the expertise of an ICU 

doctor and that it was reasonable for Drs. Balagani and Bolton to rely upon Dr. Thomas’s advice; 

(2) no expert testified that Drs. Balagani and Bolton violated the standard of care by ignoring or 

failing to follow Dr. Thomas’s treatment recommendations. Accordingly, the Balagani 

defendants maintain that, based on the evidence presented, the jury could not possibly have 

found that Drs. Balagani or Bolton breached the standard of care. The defendants argue that, at a 

minimum, the jury’s liability verdict is against the manifest weight of the evidence and they are 

entitled to a new trial.

¶ 103 Contrary to the Balagani defendants’ argument, some of the experts opined that the 

ultimate decision regarding Donald’s treatment rested with Dr. Balagani, not the consulting 

physicians, and that Drs. Balagani and Bolton should have known how to treat Donald’s 

condition. Moreover, even if the jury found that Drs. Balagani and Bolton could have reasonably 

relied upon Dr. Thomas’s recommendations, there was evidence suggesting that Dr. Thomas 

never advised Dr. Balagani or Dr. Bolton not to transfuse more O-negative blood. (Drs. Abrams 

and DeBoisblanc testified to that effect based on Dr. Thomas’s discovery deposition, and Dr. 

Bolton’s medical chart notation stated that Dr. Balagani ordered no more blood transfusions but 
45 

did not mention that Dr. Thomas had issued any such order or recommendation.) Accordingly, 

there was sufficient evidence in the record to support the jury’s verdict that the Balagani 

defendants were negligent and were liable for Donald’s death.

¶ 104 III. OSF’s Appeal

¶ 105 On appeal, OSF argues that: (1) it was entitled to a JNOV or, alternatively, a new trial on 

whether Dr. Balagani was an apparent agent of OSF; (2) Angela presented no competent 

evidence of loss of future income and the trial court erred in denying its posttrial motion to remit 

the jury’s award for lost future earnings (as the Balagani defendants also argue); and (3) the 

jury’s erroneous apportionment of liability between OSF and Dr. Balagani rendered its verdict 

against OSF on grounds of apparent agency “inconsistent,” “legally incomprehensible,” and 

against the manifest weight of the evidence. We address each of these arguments in turn.

¶ 106 A. Apparent Agency 

¶ 107 The jury found that OSF was liable for Dr. Balagani’s negligence because Dr. Balagani 

acted as OSF’s apparent agent when he rendered treatment to Donald. OSF argues on appeal that 

it is entitled to a JNOV or, alternatively, a new trial on the issue of whether Dr. Balagani was an 

apparent agent of OSF. As noted above, a JNOV is properly entered “in those limited cases 

where ‘all of the evidence, when viewed in its aspect most favorable to the opponent, so 

overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.’ 

” Maple, 151 Ill. 2d at 453, quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 

(1967)). In ruling on a motion for JNOV, a court does not weigh the evidence, nor is it 

concerned with the credibility of the witnesses; rather it may only consider the evidence, and any 

inferences therefrom, in the light most favorable to the party resisting the motion. Maple, 151 
46 

Ill. 2d at 453. A JNOV may not be granted merely because a verdict is against the manifest 

weight of the evidence. Id. We review the trial court’s denial of a motion for JNOV de novo. 

Ford, 398 Ill. At 650. By contrast, a motion for a new trial should be granted when jury’s 

verdict is against the manifest weight of the evidence, i.e., if the opposite conclusion is clearly 

evident or the jury’s findings are unreasonable, arbitrary, or not based on the evidence (Maple, 

151 Ill. 2d at 453; see also Buckholtz v. MacNeal Hospital, 337 Ill. App. 3d 163, 168 (2003)), 

and it is that standard that guides our review of the trial court’s denial of a motion for a new trial 

(Friedman by Friedman, 151 Ill. App. 3d at 385). 

¶ 108 A hospital may be vicariously liable for negligent medical treatment rendered in the 

hospital by an independent-contractor physician under the doctrine of apparent authority if the 

plaintiff establishes that: “(1) the hospital, or its agent, acted in a manner that would lead a 

reasonable person to conclude that the individual who was alleged to be negligent was an 

employee or agent of the hospital; (2) where the acts of the agent create the appearance of 

authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in 

them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, 

consistent with ordinary care and prudence.” (Internal quotation marks omitted.) Gilbert v. 

Sycamore Municipal Hospital, 156 Ill. 2d 511, 525 (1993). 

¶ 109 The first two elements are frequently grouped together and have been referred to as the 

“holding out” factor. The element of “holding out” is satisfied if the hospital holds itself out as a 

provider of emergency room care without informing the patient that the care is provided by 

independent contractors. Id. Hospitals increasingly hold themselves out to the public in 

expensive advertising campaigns as offering and rendering quality health services. Id. at 520.

Moreover, the element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff 
47 

or those responsible for his care (such as paramedics or a parent or other relative if the patient is 

a minor or an incapacitated adult) rely upon the hospital to provide complete emergency room 

care, rather than upon a specific physician. Id. at 525. The public is generally unaware of 

whether the staff in an emergency room is comprised of independent contractors or employees of 

the hospital, and absent a situation where a patient is somehow put on notice of a doctor’s 

independent status, a patient generally relies on the reputation of the hospital and reasonably 

assumes that the staff is comprised of hospital employees. Id. at 521. 

¶ 110 Although Gilbert involved an emergency room setting, the Gilbert analysis is not limited 

to such situations. See, e.g., Malanowski v. Jabamoni, 293 Ill. App. 3d 720 (1997) (applying 

Gilbert in an outpatient clinic setting). However, liability attaches to the hospital only where the 

treating physician is the apparent or ostensible agent of the hospital. If the patient knows, or 

should have known, that the treating physician is an independent contractor, then the hospital 

will not be liable. Gilbert, 156 Ill. 2d at 522. 

¶ 111 OSF argues that it is entitled to a JNOV or a new trial in this case because Angela failed 

to present any evidence, other than “speculation and conjecture,” suggesting that Dr. Balagani 

was an apparent agent of OSF or that either Angela or Donald justifiably relied upon any conduct 

by OSF or Dr. Balagani suggesting an agency relationship. Contrary to OSF’s argument, Angela 

proved all of the elements required to establish that Dr. Balagani was OSF’s apparent agent. OSF 

held itself out to the public as providing intensive medical care services without informing 

Donald that the care was provided by independent contractors. Moreover, Donald and those 

others responsible for his care, such as the paramedics who took him to OSF by ambulance, 

relied upon OSF to provide complete intensive care services, rather than upon a specific 

physician. Donald did not know that Dr. Balagani was not an employee of OSF and did not 
48 

choose Dr. Balagani, or any other particular physician, as his doctor; rather, OSF provided Dr. 

Balagani as the head of the ICU that day. Because Angela alleged that it was OSF that did the 

“holding out,” not Dr. Balagani, Angela was not required to show that OSF acquiesced in any 

acts of “holding out” by Dr. Balagani. The jury was properly instructed on this issue by means of 

the applicable Illinois pattern jury instruction, and OSF did not object to the instruction given or 

tender an alternative instruction. Thus, the jury’s finding of apparent agency was neither contrary 

to law nor against the manifest weight of the evidence. 

¶ 112 B. Jury’s Award for Lost Future Income 

¶ 113 The OSF and Balagani defendants challenge the jury’s award of damages of $1.1 million 

for the loss of Donald’s future income. They maintain that Angela presented no competent 

evidence of lost future earnings in this case “other than speculation” that Donald’s two-year old 

business “appeared to be improving.” The defendants characterize this evidence as a “compete 

failure of proof” on the issue of lost future income. Accordingly, the defendants argue that the 

trial court erred in instructing the jury on loss future income, that they should be granted a JNOV 

as to lost future income damages, and that all damages for lost future earnings must be remitted 

from the verdict. In the alternative, they argue that the jury’s damages award for lost future 

income was against the manifest weight of the evidence.

¶ 114 The defendants base their arguments primarily on the so-called “new business rule,” 

which Illinois courts have applied in some contract or business tort cases wherein a plaintiff 

claims damages resulting from the loss of a new business or an unrealized business opportunity. 

The “new business rule” precludes expert witnesses from speculating about possible lost profits 

in such cases “where there is no historical data to demonstrate a likelihood of future profits.” 

Meriturn Partners, LLC v. Banner & Witcoff, Ltd., 2015 IL App (1st) 131883, ¶ 23. Courts 
49 

applying this rule allow recovery for “profits lost due to a business interruption or tortious 

interference with a contract,” but they require that “the business must have been established 

before the interruption so that the evidence of lost profits is not speculative.” SK Hand Tool 

Corp. v. Dresser Industries, Inc., 284 Ill. App. 3d 417, 427 (1996); see also Meriturn Partners, 

2015 IL App (1st) 131883, ¶ 23. The reason for the rule is that a new business has yet to show 

what its profits actually are. SK Hand Tool Corp., 284 Ill. App. 3d at 427. Moreover, “[a]s lost 

profits are frequently the result of several intersecting causes, the plaintiff must show with 

reasonable certainty that the defendant’s conduct caused a specific portion of the lost profits.” 

Id. Applying these standards, the defendants argue that the plaintiff was precluded from 

recovering damages for any lost future profits from Donald’s business because there was 

insufficient evidence to support any specific growth projections of the business. The historical 

profit data was limited, it showed modest growth in 2008 and decreased growth in 2009, and the 

plaintiff never called her disclosed expert economist who could have established more specific 

and less speculative growth projections. 

¶ 115 Contrary to the defendants’ argument, however, the “new business rule” does not govern 

the determination of damages in this case. This is a wrongful death personal injury case, not a 

business tort or breach of contract case. Unlike the plaintiffs in the business tort cases cited by 

the defendants, Angela did not merely seek damages resulting from the lost profits of the 

defendant’s new business; rather, she sought a much broader category of damages. Specifically, 

she sought damages for the “pecuniary loss” caused to her and to Donald’s lineal next of kin as a 

result of Donald’s wrongful death. The determination of damages for this type of loss is guided 

by IPI Civil (2007) No. 31.04, the pattern instruction given to the jury in this case, which 

provides that “[p]ecuniary loss” from a wrongful death “may include loss of money, benefits, 
50 

goods, services, [and] society [and sexual relations].” IPI 31.04. There is a presumption that 

Donald’s lineal next of kin have sustained “some substantial pecuniary loss” by reason of his 

death. Id. In determining pecuniary loss, the jury may consider what the evidence shows 

concerning the money, benefits, goods, and services the decedent “customarily contributed in the 

past” and “was likely to have contributed in the future.” Id. In making that determination, the 

jury could consider the decedent’s age, sex, health, occupational abilities, and “habits of 

industry, sobriety, and thrift.” Id. In order to be compensated for future loss of earnings, “[i]t is 

not necessary to establish an earnings history at the time of injury.” Fakhoury by Fakhoury v. 

Vapor Corp., 154 Ill. App. 3d 531, 539 (1987). “A youth with no earnings history should not be 

precluded from proving the future earning impact of his impairment in terms of his career 

ambitions.” Id. 

¶ 116 The question of damages is one of fact, and courts “are reluctant to interfere with the 

discretion of the jury in its assessment of damages.” SK Hand Tool Corp., 284 Ill. App. 3d at 

426. Although a damages award for lost future earnings will not be sustained if it is based on 

speculative or conjectural testimony, where such an award finds its basis in testimony delivered 

with reasonable certainty, it must be upheld. Id.; see also Fakhoury by Fakhoury, 154 Ill. App. 

3d at 539. Expert testimony is not required to establish a plaintiff’s entitlement to lost future 

earnings. Antol v. Chavez-Pereda, 284 Ill. App. 3d 561, 573 (1996); Tracy v. Village of 

Lombard, 116 Ill. App. 3d 563, 575 (1983). 

¶ 117 In this case, the evidence was sufficient to support the jury’s damages award of $1.1 

million for loss of future income, money, goods, and services. Through the testimony of Angela, 

Donald’s widow, his former co-worker Tim Kruger, and his accountant and friend Curtis 

Wardelman, Angela presented ample evidence of Donald’s industriousness, initiative, ingenuity, 
51 

and occupational abilities, including his ability to solicit clients and build and grow a business 

enterprise. The witness testimony suggested that Donald was a hard worker who had always 

been a good provider. He was reliable, responsible in his work, and he was methodical in 

growing his business. There was evidence that his business was growing, which the defendants 

did not dispute. Although the business had not yet achieved a high level of annual profits by the 

time of Donald’s death, the business had only been operating for two years at that time and 

Donald had recently made large capital investments in new printing equipment to grow the 

business and to meet the increased demands of his growing client base. Thus, the jury could 

reasonably have inferred that the business would continue to grow and yield higher profits in the 

ensuing years. Moreover, the jury was not required to base its damages award entirely on 

Donald’s current earnings or on a projection of the future profits generated by his upstart 

business alone. Rather, the jury was entitled to consider Donald’s future earning potential based 

upon his general abilities, industriousness, work habits, and his lifetime history of providing for 

his family. When those factors are taken into account, it is clear that the jury’s award is neither 

contrary to law nor against the manifest weight of the evidence. 

¶ 118 C. Jury’s Apportionment of Liability 

¶ 119 In the alternative, OSF argues that it is entitled to a new trial because the jury’s 

apportionment of responsibility between OSF and Dr. Balagani rendered its verdict against OSF 

on grounds of apparent agency “inconsistent,” “legally incomprehensible,” and against the 

manifest weight of the evidence. As noted above, after finding Dr. Balagani liable, the jury 

found that OSF was derivatively liable for Dr. Balagani’s negligence because Dr. Balagani was

acting as OSF’s apparent agent when his conduct harmed Donald. The jury then apportioned 
52 

fault between Dr. Balagani and OSF, finding Dr. Balagani to be 70% responsible Donald’s death 

and OSF 30% responsible. 

¶ 120 As OSF correctly notes, the jury’s apportionment of legal responsibility was error. The 

jury rejected Angela’s claim of institutional negligence against OSF. Accordingly, OSF’s 

liability in this case was predicated entirely upon Dr. Balagani’s conduct and his status as an 

apparent agent of OSF. “When an action is brought against a master based on allegedly negligent 

acts of the servant and no independent wrong is charged on behalf of the master, liability is 

entirely derivative, being founded upon the doctrine of respondeat superior.” Moy v. County of 

Cook, 159 Ill. 2d 519, 524 (1994); Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill. App. 3d 

1051, 1060 (2011). A principal found to be vicariously liable is not found to be at fault but, 

rather, is liable only by application of the doctrine of respondeat superior. American National 

Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 353-54 (1992); 

Sperl, 408 Ill. App. 3d at 1060. In such cases, there is only a basis for indemnity, not for 

apportionment of damages between the principal and the agent. American National Bank & Trust 

Co., 154 Ill. 2d 347 at 353; Sperl, 408 Ill. App. 3d at 1060. Accordingly, the finding of an 

agency relationship between OSF and Dr. Balagani (and the lack of any independent act of 

institutional negligence performed by OSF) “eliminates the possibility of comparing conduct for 

purposes of apportioning liability.” Sperl, 408 Ill. App. 3d at 1060. Because OSF’s liability in 

this case is exclusively vicarious and derivative, fault may not be allocated between OSF and Dr. 

Balagani (id.); OSF is liable to the exact same extent that its agent, Dr. Balagani, is liable. (Sperl 

v. Henry, 2017 IL App (3d) 150097, ¶ 28, rev’d on other grounds, 2018 IL 123132; Bristow v. 

Griffitts Construction Co., 140 Ill. App. 3d 191, 194 (1986); Bean v. Missouri Pacific R.R. Co., 

171 Ill. App. 3d 620, 625 (1988)). Put simply, OSF and Dr. Balagani are not “separate 
53 

tortfeasors” whose relative fault could be compared. See Sperl, 2017 IL App (3d) 150097, ¶ 46. 

Thus, the jury clearly erred by apportioning liability between OSF and Dr. Balagani. 

¶ 121 However, although OSF raised the jury’s apportionment error in its posttrial motion, it 

did not argue that the jury’s verdict was irreconcilably inconsistent or suggest that OSF was 

entitled to a new trial based on any such inconsistency. Having failed to raise this argument in 

its posttrial motion, OSF has forfeited the argument on appeal. Benford v. Everett Commons, 

LLC, 2014 IL App (1st) 130314, ¶ 45. 

¶ 122 In any event, even if we were to address OSF’s argument for a new trial based on 

allegedly inconstant verdicts, we would reject it. In determining whether jury verdicts are 

inconsistent, a reviewing court “will exercise all reasonable presumptions in favor of the verdict 

or verdicts.” Redmond v. Socha, 216 Ill. 2d 622, 643 (2005). Verdicts will not be found legally 

inconsistent unless they are “absolutely irreconcilable.” Id. The verdict or verdicts will not be 

considered irreconcilably inconsistent if it is supported by any reasonable hypothesis. Id. at 644. 

Moreover, “only when a judgment rests on some particular finding for its validity and support 

will inconsistencies between two findings treating of the same essential matter necessitate a new 

trial.” (Internal quotation marks omitted.) Id. Whether two verdicts are legally inconsistent is a 

question of law. Id. at 642. Accordingly, a trial court’s order granting or denying a new trial 

based on a claim of legally inconsistent verdicts is subject to de novo review. Id. 

¶ 123 Although the jury in this case erred as a matter of law by assigning different degrees of 

legal responsibility to OSF and Dr. Balagani, this error did not give rise to legally inconsistent 

verdicts requiring a new trial. In order to find OSF liable as Dr. Balagani’s apparent agent, the 

jury was required to find that: (1) OSF held itself out as a provider of medical intensive care 

services; (2) Donald neither knew nor should have known that Dr. Balagani was not an employee 
54 

of OSF; and (3) Donald (or those responsible for his care) did not choose Dr. Balagani as a 

treater, but rather relied upon OSF to provide medical intensive care treatment and services. The 

jury could make each of those findings without allocating fault or liability between Dr. Balagani 

and OSF. In other words, the jury’s judgment that OSF was liable for Dr. Balagani’s negligence 

under agency principles did not “rest for its validity and support” on any particular allocation of 

responsibility or fault between Dr. Balagani and OSF. Rather, it rested entirely on the three 

findings listed above. Those findings were not contradicted by the jury’s erroneous allocation of 

liability. The jury’s erroneous allocation of fault between Dr. Balagani and OSF suggests that 

the jury did not understand the legal consequences of a finding of derivative or vicarious liability 

(i.e., that a vicariously liable principle is legally responsible for all of the damages caused by its 

agent’s negligence). That is not surprising, as this legal principle was not articulated in either the 

jury instructions or the verdict form.5

 However, the jury’s erroneous allocation of responsibility 

does not contradict or otherwise undermine the jury’s findings that Dr. Balagani was OSF’s 

apparent agent and that OSF was therefore liable for Dr. Balagani’s negligent acts and omissions.

¶ 124 A defendant is entitled to a new trial as to liability due to inconsistent verdicts only where 

the jury’s basis for finding the defendant liable is contradicted by some other verdict or finding

made by the jury. See, e.g., Wottowa Insurance Agency, Inc. v. Bock, 104 Ill. 2d 311 (1984) 

(remanding for new trial where jury’s verdict that corporate officers were personally liable for 

fraud in connection with the execution of a guarantee agreement was inconsistent with its verdict 

that the guarantee at issue was a corporate obligation and not a personal guarantee); Action 

5 The pre-printed verdict form given to the jury merely stated that “[a]ssuming that 100% 

represents the total combined responsibility of all persons or entities whose responsibility proximately 

caused the death of Donald R. McIntyre, we find the percentage of responsibility attributable to each as 

follows: a) Rajesh Balagani, D.O. __% b) Ryschell Bolton, D.O __% c) OSF Healthcare System, St. 

Francis Medical Center __%.” The verdict form did not instruct the jurors not to allocate responsibility 

between Dr. Balagani and OSF if it found Dr. Balagani to be OSF’s apparent agent and found no other 

basis for imposing liability on OSF. Neither party objected to the verdict form as written. 
55 

Construction & Restoration, Inc. v. West Bend Mutual Insurance Co., 322 Ill. App. 3d 181 

(2001) (remanding for new trial because jury’s verdict that defendant insurance company had 

breached its contract with the plaintiff, which entailed a finding that the parties had reached a 

meeting of the minds and formed a contract, was inconsistent with its verdict that the defendant 

had committed common law fraud by concealing material fact from the plaintiff, which would 

have precluded a meeting of the minds and the formation of a contract). As noted above, this is 

not such a case. In this case, the found jury OSF liable under agency principles and then 

erroneously allocated fault for purposes of awarding damages. Such legal errors do not create 

irreconcilably inconsistent verdicts necessitating a new trial as to liability. See generally Marek 

v. Stepkowski, 241 Ill. App. 3d 862, 870-71 (1992) (rejecting defendants’ argument that the 

jury’s verdict was unclear where the jury had found the two defendants liable as joint tortfeasors 

and then erroneously attempted to allocate damages equally between them); Mrowca v. Chicago 

Transit Authority, 317 Ill. App. 3d 784, 785-88 (2000) (affirming trial court’s denial of a new 

trial based on inconsistent verdicts despite the fact that the jury had improperly awarded the 

plaintiff damages after finding her 60% liable for the accident, in violation of section 2-1116 of 

the Code of Civil Procedure (735 ILCS 5/2-1116 (West 2000)). 

¶ 125 In sum, the jury’s error in allocating fault did not create an irreconcilable conflict with its 

liability verdict against OSF because the liability verdict did not depend upon any finding that is 

contradicted by the erroneous allocation of fault. Such an irreconcilable conflict would exist if 

the jury had found that OSF was vicariously liable for Dr. Balagani’s negligence under agency 

principles while also finding that Dr. Balagani was not negligent. Johnson v. Kirkpatrick, 11 Ill. 

App. 2d 214, 216 (1956) (verdicts were inconsistent and new trial was required where jury found 

negligence on the part of a tractor’s owner but none on the part of the driver, even though the 
56 

owner’s liability was premised entirely on the driver’s conduct under agency principles). An 

irreconcilable conflict would also arise if the jury had found OSF liable for Dr. Balagani’s 

negligence under agency principles but also found that Dr. Balagani was not acting as OSF’s 

agent. In each of these examples, the basis of the jury’s finding of liability against OSF would 

be directly contradicted by other findings made by the jury. That is not the case here. 

¶ 126 Nevertheless, we reverse the jury’s erroneous allocation of damages and remand for a 

new trial to determine the proper allocation of fault and liability between Dr. Balagani/OSF and, 

if necessary, the Thomas defendants. We acknowledge that no party has asked us specifically to 

reverse the jury’s allocation of liability.

6

 A reviewing court normally should not search the 

record for unargued and unbriefed reasons to reverse the circuit court’s judgment, especially 

when it would have the effect of transforming its role from jurist to advocate. West Bend Mutual 

Insurance Co. v. TRRS Corp., 2019 IL App (2d) 180934, ¶ 30; Marconi v. City of Joliet, 2013 IL 

App (3d) 110865, ¶ 18. However, “ ‘a reviewing court does not lack authority to address 

unbriefed issues and may do so * * * when a clear and obvious error exists in the trial court 

proceedings.’ ” Mid-Century Insurance Co. v. Founders Insurance Co., 404 Ill. App. 3d 961, 

966, quoting People v. Givens, 237 Ill. 2d 311, 325 (2010); see also Marconi, 2013 IL App (3d) 

110865, ¶ 18. Moreover, pursuant to Illinois Supreme Court Rule 366 (eff. Feb. 1, 1994), in 

exercising its responsibility for a just result, a reviewing court may decide a case on grounds not 

raised by the parties. West Bend Mutual Insurance Co., 2019 IL App (2d) 180934, ¶ 30; 

Marconi, 2013 IL App (3d) 110865, ¶ 16. In this case, the jury clearly erred by allocating 70% 

of the fault to Dr. Balagani and 30% of the fault to OSF, even though it found that OSF’s 

6

 Angela, the Balagani defendants, and OSF each requested a new trial on damages, which we 

have denied. OSF has also asked for a new trial on liability based upon the allegedly inconsistent 

verdicts. However, OSF argues that, if we deny OSF’s requests for a new trial on liability and/or 

damages, we must uphold the jury’s erroneous allocation of liability because no party has appealed that 

allocation. 
57 

liability was purely derivative and was predicated entirely upon Dr. Balagani’s negligent 

conduct. By reversing the jury’s erroneous allocation of fault between Dr. Balagani and OSF, 

we are not advocating for any party in this case, but simply correcting a clear and obvious error 

in the verdict that would otherwise produce a result that is contrary to well-established legal 

principles. OSF acknowledges that the jury’s allocation of fault was error because fault may not

be compared between a principle and agent, thereby precluding any allocation of liability 

between them. 

¶ 127 Moreover, remanding for a new trial on the allocation of liability may be a practical 

necessity in this case. We have reversed the trial court’s grant of summary judgment in favor of 

the Thomas defendants and remanded for a new trial to determine whether Dr. Thomas was 

negligent and liable in whole or part for Donald’s death. If the jury finds Dr. Thomas liable for 

any portion of the $1.6. million in damages that the jury awarded to Angela, damages would

need to be reallocated between Dr. Balagani/OSF and the Thomas defendants. Accordingly, we 

reverse the jury’s allocation of fault and remand the matter for redetermination, which should 

occur after a judgment is entered as to the Thomas defendants’ liability. 

¶ 128 We have considered the other arguments raised by the parties on appeal and find that they 

lack merit. 

¶ 129 CONCLUSION

¶ 130 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed 

in part, reversed in part, and remanded with directions. 

¶ 131 Affirmed in part, reversed in part, and remanded with directions.