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Horwitz v. Michael Reese Hospital

OCTOBER 30, 1970.




APPEAL from the Circuit Court of Cook County; the Hon. EDWARD FINNEGAN, Judge, presiding.



May 3, 1972

Plaintiff filed a petition for rehearing. Defendants filed a reply to the petition and in turn plaintiff filed a reply thereto. We allowed a rehearing. On our own motion we rescheduled the matter for Oral Argument. After thorough and further consideration of the case, we adhere to the positions taken in the opinion as previously filed.

The opinion filed on October 30, 1970, will be again adopted and filed as the opinion of the court.

ADESKO, J.: BURMAN, J., concurring.

DIERINGER, P.J., dissenting.

Plaintiff Janet Horwitz, sued defendant Michael Reese Hospital and defendant Air Reduction Company, Inc., for damages allegedly caused by the hospital's negligent treatment and the company's defective manufacture of an incubator in which she was placed while a three day old patient at the hospital. At the close of plaintiff's case, the trial judge diected a verdict for the defendant manufacturer. The jury returned a verdict for the defendant hospital. From the judgments entered thereon, plaintiff appeals.

Plaintiff maintains (1) that the trial court erred in refusing to direct a verdict for plaintiff against the hospital at the close of all the evidence on the issue of liability where no defense to plaintiff's proof of negligence was made; (2) that the trial court erred in directing a verdict for the manufacturer at the close of plaintiff's case; (3) that the jury verdict was against the manifest weight of the evidence and (4) that the trial court erred in admitting certain evidence over plaintiff's objection on behalf of defendants. In order to consider these assignments of error it will be necessary to review the evidence in some detail.

Janet Horwitz was delivered by Dr. Abraham Lash, a long time practitioner in obstetrics at Michael Reese Hospital, on May 10, 1947, around 9:00 A.M. Dr. Lash testified that he examined the baby's color, found that she cried lustily, listened to the lungs and found all orifices and reactions of the infant normal. Although baby Horwitz had been delivered after a full 37 week gestation period, she weighed only 2020 grams, or 4 lbs. 6 oz., and since her weight was under 5 1/2 lbs., she was classified as a premature baby. The pediatrician, Dr. Philip Rosenblum, after examining the child's reflexes, especially the Moro reflex, found everything in order, but still requested that the child be placed in an incubator as soon as possible since she was premature. Because the incubator beds in the premature station were all occupied, the child was placed in a Hess incubator in the nursery.

While the child was in the incubator, oxygen was administered on May 10 and 11, as needed and the bed was heated at periodic intervals. On May 11, the child's weight had fallen to 1910 grams and May 12 had increased to 2000 grams. According to a report made on May 15 by Miss Lorentz, director of nursing at the hospital, at about 4:30 P.M., on May 12, the third day of the child's life, the child took a feeding and thereafter became cyanotic (blue in color) so that oxygen had to be administered. At about 10:00 P.M., according to the report, another nurse reported that the baby was very lethargic, apathetic, cold to the touch and not taking feedings well. Because the baby felt cold, heat was turned on in the Hess incubator to the fourth heat, and the graduate nurse who came on duty at 11:30 P.M. was warned to watch the bed since it had been adjusted to the fourth heat. The baby was fed at 12:00 midnight, 3:00 A.M., and 6:00 A.M., and each time, according to the graduate nurse on duty, the baby still felt cold to touch. The night report states: "Baby takes formula poorly, very listless, responds poorly to stimuli." It must be noted that this evidence comes from a specially prepared report made by the director of nursing on May 15, 1947, and not from the hospital record. The hospital record, which should contain all matters concerning the care of a patient, reveals none of the above occurrences for the night of May 12-13. Even the child's temperature for the night of May 12-13 was not noted in the hospital record.

At 7:30 A.M., when the day staff came on duty, the head nurse discovered that the baby was having convulsions and called the resident in pediatrics. Upon arrival, Dr. Hyman Morris found the infant in the incubator to be cyanotic, twitching, foaming at the mouth, and dehydrated as indicated by a depressed fontanel. Dr. Morris touched the incubator and found it to be uncomfortably hot. The doctor testified that normally an incubator is only comfortably warm.

The child was removed from the incubator. Her temperature was taken rectally and found to be 102° . Dr. Morris then called his senior resident in pediatrics, Dr. Martin Sachs. Dr. Sachs testified that he found the child frothing at the mouth, twitching, blue around the mouth and apparently dry. Since she looked dehydrated, she was given glucose and phenobarbital. By 11:00 A.M. the child's temperature was 99° and by noon 98° .

During the evening of May 13, 1947, the child continued to have convulsions and twitching and as a result the administration of phenobarbital was continued. An examination on May 15, 1947, found the child's fontanel full and her weight increased to 2020 grams. By May 17, it was 2030 grams and when she was released from the hospital to her parents in "good condition" her weight was 2175 grams.

Throughout her entire life, Janet Horwitz has had severe medical problems. As a child she had difficulty retaining food, could not turn in bed and had a slight paralysis on the right side. She could not crawl, did not walk until 4 1/2 years old and has had difficulty in speaking. She has spent most of her life in laboratory schools, institutes and hospitals for anti-convulsive therapy, speech therapy and stimulation of her brain cells. Various doctors who testified in this case described Janet's condition as a central nervous system disorder, cerebral palsy and mental retardation.

Plaintiff's witnesses, Dr. Morris, Dr. Sachs and Dr. Rosenblum, testified in varying degrees that Janet's May 13 condition of convulsions, foaming at the mouth, dehydration and cyanosis was directly connected with the overheating of the incubator. Dr. Sachs expressed the opinion that these conditions could cause brain damage. Dr. Frederick Gibbs, a neurosurgeon, testified that the incubator incident might or could have been the cause of the plaintiff's condition of ill being. Furthermore, nurse Lorentz's report, plaintiff's Exhibit 1A, found "several evidences of poor nursing in the circumstances surrounding the care of the baby * * * (namely * * * no thermometer in the incubator * * * the baby's temperature was taken routinely only once in 24 hours * * * (and) loose routines and lack of routines in the newborn nursery." Armed with this expert testimony and these admissions, plaintiff maintains that the trial court erred in refusing to direct a verdict for plaintiff against the hospital at the close of all the evidence on the issue of liability where no defense to plaintiff's proof of negligence was made.

Defendant offered as a defense the testimony of three pediatric specialists, Dr. Meyer A. Perlstein, a specialist in pediatric neurology and diseases of the brain that occur in children before they reach the age of adolescence, Dr. David Y-Yung Hisia, specialist in pediatrics and professor at Northwestern University Medical School and Dr. William Silverman, professor of pediatrics at Columbia University Medical School. All three doctors, in response to hypothetical questions which embraced the present conditions of ill being of the child, testified that in their opinion the incubator incident was not the cause of the condition of ill being. The pediatric specialists described a syndrome known as intrauterine growth retardation, unknown in 1947 and described in great detail only in the last six or seven years. Most authorities believe this results from lack of nourishment of the baby in the womb which causes a low birth weight for a full term baby and an organic under-development including the brain. One of the pediatricians testified that 50 to 60 percent of these babies have mental retardation since intrauterine growth failure babies have low blood sugars and as a result the baby lacks the necessary nutrients for the brain. Low blood sugar or the hypoglycemia syndrome occurs in babies around 48 to 72 hours of age. The early signs of the hypoglycemia syndrome are respiratory failure, cyanosis, lethargy, convulsions and low blood sugars. The pediatricians pointed out that these signs applied to Janet Horwitz. She had difficulties, including cyanosis, lethargy and poor response to stimuli prior to the incubator incident. Although a baby of 37 weeks gestation, she weighed only 2020 grams, which raises the inference of undernourishment. This inference is supported by the fact that Janet was substantially smaller than either her sister, a first child, or her brother, a third child, both normal, since generally a second child is of greater size than the first.

Defendant's witnesses were also of the opinion that neither the baby's temperature nor the alleged dehydration was the cause of her condition of ill being. The doctors pointed out, that although the baby's temperature was 102° when taken immediately after being removed from the incubator, such a temperature was not high enough for a long enough period of time to cause brain damage. With respect to dehydration, the doctors testified that the liquid of the rectum leaves the baby first with the fluid in the brain conserved until everything else is gone and that the baby must lose more than 10 percent of its fluid volume before dehydration can even be detected clinically. Defendant's witnesses were of the view that Janet Horwitz was not dehydrated sufficiently to cause brain damage because if she had been, there would have been a greater weight loss. It is to be noted in this regard that while the doctors who testified for plaintiff were of the view that dehydration or a high temperature could cause brain injury, none of them explained the degree of temperature or the amount of dehydration required to cause such injury.

Considering the testimony of the defendant's witnesses as well as the plaintiff's witnesses, we hold that the trial court did not err in refusing to direct a verdict for plaintiff against the hospital. Plaintiff strenuously argues that she sustained some injury as a result of the incubator incident, and that this incident was due to the negligence of the defendant hospital as it admits in its report and whatever her injuries might have been, however slight, she should be entitled to a directed verdict which would still leave the question of causal connection to the jury since the jury would ascertain what damages, if any, she sustained. Plaintiff contends that she was entitled to a directed verdict on liability and that the only question which should have been left to the jury was one of damages.

• 1-3 The element of the proximate cause is an essential part of every cause of action for negligence. The Illinois Supreme Court has repeatedly announced the rule that questions of negligence and proximate cause are ordinarily questions of fact for the jury to decide (Paul Harris Furniture Co. v. Morse (1956), 10 Ill.2d 28, 42, 139 N.E.2d 275.) In Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 84, 117 N.E.2d 74, the court stated: "The debatable quality of issues such as negligence and proximate cause, the fact that fairminded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body." The debatable quality of an issue such as proximate cause in a case involving medical science is especially pronounced. As stated by Louis G. Davidson in an article entitled "Testimony as to Personal Injuries" in the 1956 Illinois Law Forum 390, page 421:

"The courts do not dwell in an ivory tower. They know as do laymen that medical science is not exact and certain; that equally qualified experts often sharply disagree as to causal connection; that factors known to be causative of a condition today were not known or accepted as causative only ten or twenty years ago. The ultimate decision as to causal connection has been reposed, and wisely so, in the trier of facts."

• 4-6 Since various conclusions could be drawn from the evidence in the case at bar, we find that the trial court correctly refused to direct a verdict for the plaintiff on liability, and accordingly, correctly submitted the case to the jury to resolve these differences. We find no merit in plaintiff's comparison of this case to automobile cases where defendant's negligence `aggravated' the plaintiff's prior physical condition. For the plaintiff to argue that she was entitled to a directed verdict because the evidence showed that the overheated incubator `aggravated' her prior physical condition is to presume ...

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