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Kincl v. Hycel





APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.


An action was brought by plaintiff, John Kincl, the executor of the estate of Louis Kincl, deceased, against Hycel, Inc. (Hycel), the Edward Hospital District, Alfred R. Olley and three doctors: Felipe Serna, James V. Dunphy, and George G. Markarian. In his suit, plaintiff sought damages for personal injuries which eventually caused Louis Kincl's death allegedly resulting from the negligence of defendants. The jury returned a verdict of $750,000 against Hycel; verdicts were returned in favor of the other defendants. Judgment on the verdict was entered by the court. Hycel appeals from the judgment in favor of plaintiff, alleging numerous trial errors which raise issues regarding evidentiary and procedural matters; the propriety of plaintiff's closing argument; the manifest weight of the evidence; whether the chain of causation was broken by negligence constituting an intervening cause; whether the damages are excessive. In his cross-appeal, plaintiff contends that the verdicts in favor of the defendants are against the manifest weight of the evidence and that the cause should be remanded for a new trial. We affirm.

The facts sufficient to support our conclusions are presented in our discussion of the various issues and follow below.

On January 24, 1968, Louis Kincl was brought to the emergency room of Edward Hospital, after he had fallen from a ladder. X rays revealed that Kincl had several fractured ribs and a fractured pelvis, but he had no head injuries. Dr. Markarian, an orthopedic specialist, treated the fractured pelvis by putting Kincl in traction. Dr. Nigro treated the fractured ribs. Kincl's condition began to improve. On January 27, however, Kincl's temperature rose and he began to exhibit symptoms of a fat embolism which is not uncommon following a fracture. As a result, Dr. Markarian treated Kincl with Dextran, a blood plasma expander.

Kincl's condition steadily improved, and on the morning of January 31, Dr. Markarian discontinued the Dextran treatment. On January 30, Dr. Dunphy, a specialist in internal medicine, saw Kincl. His study of Kincl's records indicated that the patient was properly recovering from the fat embolism and that nothing specific was wrong. Kincl was alert and talkative. However, Dr. Dunphy ordered a blood sugar test. Alfred Olley, a hospital laboratory technician, performed the test on the morning of January 31; he employed a Hycel P.M.S. blood glucose test, a product of defendant Hycel. This test gave a reading of 2000 milligrams, which indicated an abnormally high concentration of glucose in Kincl's blood. Olley testified that a reading of 65 to 110 milligrams is normal. Furthermore, Dr. Dunphy testified that the highest reading that he had ever seen was less than 1000.

Olley did not check to determine if Kincl was receiving a substance which would interfere with the blood sugar test. The laboratory chart did not indicate whether an intravenous solution had been given to Kincl. In fact, Dextran had been given intravenously.

It was later determined that Dextran interference caused the inaccurate reading of 2000, because the Dextran drug appears as sugar in the Hycel test due to Hycel's use of sulphuric acid in its method. Sulphuric acid breaks down the Dextran molecules into sugars which interfere with the Hycel test readings.

In accordance with the standard procedure for grossly abnormal test results, Olley brought the inaccurate reading of 2000 to Dr. Felipe Serna, the pathologist and director of the hospital laboratory. Dr. Serna testified that he knew that there could be interferences with various types of tests; therefore, abnormal results were reported to him, so that he could determine why an abnormal result had been reached. He asked Olley to repeat the test. After Olley repeated the test and reached the same inaccurate result, Dr. Serna ordered him to report the results to the floor where Kincl was being treated. Dr. Serna had not contacted Kincl's attending physician or checked an urinalysis dealing with sugar.

On the morning of January 31, the results of the blood sugar test were reported to Dr. Dunphy. He testified that when he ordered the blood sugar tests, he did not suspect that Kincl was diabetic. At a later time, an autopsy of Kincl indicated that he had never had a diabetic condition in his pancreas. Indeed, Kincl had no personal or family history of diabetes. Tests showed that there was no sugar in Kincl's urine. He further testified that it was possible that kidney damage prevented sugar from getting into the urine; Kincl had a damaged kidney as he had protein in the urine. Without consulting with the laboratory on the issue of whether the Hycel test was reliable, Dr. Dunphy ordered an injection of 20 units of insulin for Kincl. Dr. Frederick Andrew Gibbs, a neurologist called by plaintiff, testified that an injection of insulin is the standard treatment for the kind of diabetes involving a lack of natural insulin to control sugar.

At 11:20 a.m. on January 31, the 20 units of insulin were given to Kincl. As Dr. Dunphy had requested, another blood sugar test was performed, and the Hycel method produced a result of 1580. At 2:45 p.m., on Dr. Dunphy's order, Kincl was given 50 units of insulin. Dr. Markarian testified that according to a nurse's chart, Kincl had a "ringing in his ears" at approximately 3 p.m. In addition, at approximately 4 p.m., Kincl was sweating profusely; at 4:45 p.m., he was "very drowsy." A blood sugar test, at about 5 p.m., produced a reading of 1620. At 5:30 p.m., Dr. Dunphy ordered another 20 units of insulin. He testified that according to the nurse's notes, Kincl was sweating profusely and drowsy from 8 p.m. to 10 p.m. A blood sugar test, at 8:30 p.m., gave a reading of 1580. Dr. Dunphy testified that by 9:30, he had reviewed some of the literature on diabetes and had decided that the insulin dosage was inadequate for the high blood sugar level. Thus, he ordered 100 units at 9:30 p.m. Also, he testified that the nurse's notes at 11 p.m. revealed that Kincl had gone into a deep sleep and was sweating.

On January 31, at 10:45 p.m., Marion Mirovsky, a private duty nurse hired by plaintiff to stay with the patient during nighttime, came on duty. Mirovsky testified that on the night of January 30, Kincl's condition seemed to be improving. When she came to work on January 31, she was shocked by a major change in Kincl's appearance. Mirovsky further testified that Kincl was sweating profusely in a deep sleep. Later, he had an irregular pulse and irregular respiration. Mirovsky testified that "he had no rectal temperature at all, it didn't register as 94 on the thermometer," and she thought Kincl was dying. Between midnight and 1 a.m., Kincl appeared to be in great pain. He was thrashing and attempting to get out of bed. Mirovsky also testified that it took six people to restrain Kincl who then fell into a very deep sleep from which he could not be aroused.

Around midnight, Mirovsky called Dr. Dunphy to warn him of Kincl's condition and to ask him to come to the hospital to check Kincl. Mirovsky testified that Dr. Dunphy then refused to come to the hospital. She notified him of a blood sugar reading of 1400 which was produced by a test at midnight. On Dr. Dunphy's orders, 50 units of insulin were administered to Kincl at midnight. In the telephone conversation, Dr. Dunphy told Mirovsky to call Dr. Markarian. When she called him, Dr. Markarian asked her to keep him informed and between 1 a.m. and 2 a.m., in response to a second call by Mirovsky, Dr. Markarian came to the hospital. When Dr. Markarian examined the patient, he was in a coma with perspiration, tremors, and no response to external stimuli. Dr. Markarian testified that he called Dr. Dunphy and told him that the diagnosis was possible hypoglycemia. He further testified that insulin given in large quantities can drive the blood sugar of a person down to where he has too little sugar in the blood. After the doctors finished their phone conversation, a 2 1/2 intravenous sugar solution was given to Kincl and Dr. Markarian stayed with Kincl for approximately 30 minutes. Both Mirovsky and Dr. Markarian testified that Kincl's condition then began to improve.

In accordance with Dr. Dunphy's orders, Mirovsky gave 50 units of insulin to Kincl at 4 a.m. on February 1. According to Dr. Markarian's testimony evaluating a nurse's chart, at 4 a.m. Kincl had tremors of the extremities and heavy perspiration.

At 6:30 a.m., Dr. Dunphy came to the hospital. Mirovsky testified that he repeatedly asked her if she was certain that there was no sugar in Kincl's urine. Mirovsky assured Dr. Dunphy that the test showing no sugar in the urine was accurate. In addition, she testified that when she went off duty at 7 a.m., Kincl had convulsive tremors of the extremities, profuse sweating, low blood pressure, and a weak, irregular pulse. He was in a deep sleep.

Sometime on the morning of February 1, Olley took a blood sugar test which gave a result of 1040. Olley testified that when he brought this result to Dr. Serna, Olley found Dr. Nigro discussing with Dr. Serna the possibility of there being an interference involved in Kincl's blood sugar tests. Dr. Serna told Olley to test Kincl's blood by a different method. Olley testified that he assumed that the 1040 reading was reported to the floor. At 11 a.m., on Dr. Dunphy's orders, 100 units of insulin were administered to Kincl. Later in the day, Olley ran a blood sugar test on Kincl's blood using a method (ortho-toluidine) which was different from the Hycel method; at 1 p.m., he obtained a low reading of 24. Olley testified that Dr. Nigro suggested using the Hycel method to test the intravenous solution of Dextran which Kincl had received. The Hycel test gave a very high reading, and the other test gave a very low reading. Olley then called the technical service division of Hycel in Houston, Texas. In addition, Olley testified that, over the phone, a Hycel representative told him that Dextran in the patient would interfere with the Hycel test and produce falsely elevated readings. The Hycel representative surmised that Olley to look at page 5 of his manual, which lists sources of error, for an explanation of the interference. When Olley said that there was no reference to the problem on page 5, the Hycel representative surmised that Olley had an old manual. Olley asked for a new manual, which he received a few days later. John Moran, chairman of the board of Hycel, testified that a revision of the old manual had been printed in April or May of 1966. The revised manual gave a warning about the problem of blood sugar readings being falsely elevated.

When it became clear that Kincl's blood was not extremely high in sugar, the treatment for Kincl was altered. However, he was semicomatose and helpless for the remainder of his life. Dr. Dunphy testified that in retrospect, it is a good possibility that Kincl went into a coma because of excess insulin, which deprived the brain of glucose. Brain damage resulted from the excessive insulin. On April 11, 1969, Kincl was discharged from Edward Hospital and placed under the care of plaintiff John Kincl, his brother. At LaGrange Hospital, on July 15, 1970, Louis Kincl died of penumonia.


• 1, 2 According to the jury instructions, plaintiff set forth three separate bases for his negligence action against defendant Hycel: (1) that Hycel failed to give any warning of the false elevation problem to Edward Hospital's personnel or the defendant physicians; (2) that if it gave a warning, the warning was not proper, adequate or timely; (3) that a purported warning on the label of bottles of Hycel sugar test reagent was inadequate. Hycel contends that the jury verdict in favor of plaintiff was against the manifest weight of the evidence. We disagree with Hycel's contention. For the jury verdict to be against the manifest weight of the evidence, it must appear that when viewing all the evidence in a light most favorable to the opponent, conclusions reached by the jury are palpably erroneous and wholly unwarranted. (Harris v. City of Granite City (1977), 52 Ill. App.3d 782, 365 N.E.2d 1034.) On the contrary, there was sufficient evidence for the jury to conclude that Hycel had failed to give any warning of the false elevation problem to Edward Hospital's personnel or the defendant physicians.

The following evidence supported plaintiff in his action against defendant Hycel. Olley, the lab technician who performed Hycel P.M.S. blood sugar tests, testified that when he unpacked the bottles of Hycel reagent, he saw no warning of any kind in the packages in which the bottles came nor on any bottle itself. When he looked at the label on the bottle of Hycel reagent used to test Kincl's blood, he saw no warning concerning an interference. Defendant Serna testified that on February 1, 1968, he first became aware of the false elevation problem; he had never received any information from Hycel regarding the problem. Neil Mason, a salesman for Scientific Products, defendant Hycel's distributor, who sold the reagent to Edward Hospital, testified that he had seen warning labels on the bottles of reagent. However, he was impeached by deposition testimony in which he admitted having never seen a warning of false elevation on any Hycel P.M.S. reagent bottle. Dr. Cyril Wecht, a pathologist and medical laboratory director called by plaintiff, testified that until the instant case came to his attention, he was not aware of an interference with the Hycel test. In addition, Dr. Robert W. Alexander, a pathologist and medical laboratory director called by defendants Dunphy and Serna, testified that in 1968, the existence of the interference problem was not commonly known by pathologists or the College of American Pathologists.

John Moran testified that a new bottle of Hycel reagent can be used up to two years after its manufacture. He further testified that warning notices were not employed until the middle of 1966. Raymond Inman, a technical service manager for Scientific Products, testified that he had no knowledge of Hycel ever requesting a relabeling of its products in Scientific Products' warehouse. Moran testified that at the time the revised bottle labels giving a warning were printed, a 30-day inventory of Hycel reagent was in the hands of distributors; none of the inventory was ever recalled to be affixed with revised labels. From this evidence, the jury might have determined that Hycel did not warn of the interference problem since a bottle of reagent manufactured in early 1966 would not carry a warning of the problem, and yet the reagent would be appropriate for use at Edward Hospital on February 1, 1968. Apparently, the original manual distributed by Hycel did not contain a warning as to the problem. According to Olley's testimony, Edward Hospital did not receive from Hycel a revised manual, which gave a warning, until after the test readings for Kincl's blood had been falsely elevated and insulin had been given. Olley also testified that he never received "Hycel News Information," a monthly newsletter issued by Hycel.

The following evidence supported defendant Hycel. Moran testified that June 1966, October 1966, and August 1967 issues of the newsletter warned of the Dextran interference problem. Newsletters were distributed through a mailing list which included Edward Hospital. Olley testified that when he unpacked shipments of materials arriving at the Edward Hospital laboratory, he would not necessarily look at any technical information that might be included in a container. Plaintiff took an evidence deposition of Albert Long, a licensed laboratory director in Florida. Long testified that Monroe Hospital, where he had been a laboratory technician, began receiving warning notices in the Hycel packaging in 1966. Also, Moran testified that, based on Hycel records, 2000 of these notices were printed in July 1966. Thereafter, 1500 were printed in December 1966, another 5000 in June 1967, and 15,000 in July 1967. These notices were placed inside a plastic bag in which the bottle of Hycel reagent was contained. Joanne Murphy, a technical representative for Hycel in the district including Edward Hospital from 1967 to 1972, testified that she saw warning notices in the plastic bags.

• 3 As the record revealed, both plaintiff and defendant Hycel have evidence tending to support their own versions of the case. Since there is evidence which, if believed, supports the verdict in favor of plaintiff, we will not interfere with the result. (Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App.3d 155, 349 N.E.2d 578.) It is for the jury alone to determine the credibility of the witnesses and the weight of the evidence on disputed questions of fact. (O'Reilly v. Fencel (1976), 38 Ill. App.3d 499, 348 N.E.2d 251.) A verdict should not be disturbed on review merely because the jury could have drawn different inferences from the evidence. (O'Reilly.) Indeed, questions of negligence are ordinarily questions of fact for a jury, a fact-finding body, to decide. (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 117 N.E.2d 74.) In passing on the manifest weight of the evidence, we considered the fact that the trial judge, who observed the demeanor of the witnesses, listened to their testimony, and heard the arguments of counsel, denied defendant Hycel's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. See Mayer Paving & Asphalt Co. v. Carl A. Morse, Inc. (1977), 48 Ill. App.3d 73, 365 N.E.2d 360; Costello v. Chicago Transit Authority (1976), 40 Ill. App.3d 461, 352 N.E.2d 417.

We now turn to the cross-appeal. It raises the issue of whether the verdicts in favor of defendants Dunphy, Markarian, Serna, Olley, and the Edward Hospital District are against the manifest weight of the evidence. We believe that ample evidence was presented to support the jury's verdicts. As previously mentioned, it is not our function to weigh the evidence or determine the credibility of the witnesses. O'Reilly.

The jury instructions gave a twofold theory of liability against Dr. Dunphy: (1) he was negligent because he failed to recognize and investigate the false blood sugar readings and administered insulin; and (2) he failed to properly monitor Kincl. The following evidence supported Dr. Dunphy. He testified that when he received the test result showing a blood sugar level of 2000 milligrams percent, he considered the situation to be an emergency. Dr. Dunphy felt that a person with such a high level of sugar had a 50 percent chance of dying. Immediately, Dr. Dunphy considered the possibility that the test was wrong. He further testified that he dismissed this consideration because he regarded the blood sugar test as one of the basic tests which can be performed well by even a poor laboratory, and Edward Hospital had a very good laboratory. Dr. Wecht testified that doctors have a right to rely on blood sugar test results. He also testified that very ...

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