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Northern T. Co. v. Skokie Val. Comm. Hosp.





APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.


The plaintiffs, Northern Trust Company, as special guardian of the estate of Jason Milstein, and Michael and Lois Milstein, Jason's parents, brought a medical malpractice action against the defendants, the Skokie Valley Community Hospital (Skokie Valley), Judy Reuter, Victoria Matusik, Vera Seals and Drs. Milton Alter, Howard L. Woolf, Allen E. Winer and James MacLean, alleging that Jason Milstein's permanent brain damage was caused by the defendants' negligence at the time of his birth. At the close of the plaintiffs' case, the court directed a verdict for Matusik and Seals and by agreement dismissed Winer. The jury returned a verdict for the remaining defendants, and the court entered judgment.

On appeal, the plaintiffs argue the evidence so overwhelmingly favors them that this court should enter a judgment notwithstanding the verdict. Alternatively, the plaintiffs argue significant trial errors denied them a fair trial, and they ask that the cause be reversed for a new trial.

On September 13, 1967, Lois Milstein began to experience the early stages of labor. She was in the ninth month of her first pregnancy which had proceeded normally. She talked to her obstetrician, Dr. Woolf, on the telephone, and he instructed her to go to Skokie Valley. She and her husband arrived at Skokie Valley about 2:30 a.m. She was in the labor room at 2:40 a.m.

The hospital staff on duty in the labor/delivery suite that morning consisted of Reuter, who was a registered nurse, and two obstetrical technicians, Matusik and Seals. The medical officer on duty was Dr. Alter, an obstetrician and gynecologist.

At 3 a.m. Alter performed a vaginal examination of Lois Milstein. Also at 3 a.m., Dr. Woolf was advised by Reuter that Lois Milstein had arrived at the hospital. Dr. Woolf gave orders for Lois Milstein to be given 50 milligrams of Demerol and 25 milligrams of Phenergan if she became uncomfortable. Dr. Woolf was to be notified when this occurred. Dr. Woolf also left standing orders to be advised when his patient's dilation reached seven to eight centimeters.

Lois Milstein was examined by Reuter, Seals and Matusik at regular intervals. The fetal heart tones were checked with a fetoscope at 3:45 a.m., 4:15 a.m., 4:50 a.m., 5:10 a.m., 5:25 a.m. and 5:40 a.m. and were within the normal range on each occasion according to the medical charts. Dr. Alter also checked the fetal heart tones on at least three occasions and found them normal. However, Lois Milstein testified that Reuter listened to the fetal heart tones between 4:45 a.m. and 5 a.m. Reuter then went to the labor room door where, according to Lois Milstein, she stated "Get in touch with Woolf; there's a problem."

At 5:10 a.m. Dr. Alter performed a second vaginal examination. He found Lois Milstein's dilation was three to four centimeters and that her contractions were two minutes apart. He anticipated that her labor would probably take another three to four hours. Because she was beginning to feel uncomfortable, the Demerol and Phenergan were administered in the prescribed dosages and Dr. Woolf was notified of this fact. Dr. Woolf normally arrived at the hospital about 7 a.m. However, after being notified that Lois Milstein had been given the prescribed drugs, he decided to proceed to Skokie Valley since Lois Milstein was in labor and he had other patients to see.

At 5:55 a.m. Lois Milstein was again examined by Dr. Alter. This examination revealed that she had dilated to a full ten centimeters. The fetal heart tones were checked and found to be normal at this time. Dr. Alter thought delivery was at least 30 minutes away.

At 5:58 or 6 a.m., Reuter decided to transfer Lois Milstein to the delivery room. After the transfer was effected, Reuter discovered the fetal heart tones were abnormally low at 80, faint and irregular. She listened two more times and got the same low reading each time. Reuter had just finished checking the fetal heart tones when Dr. Woolf arrived in the delivery room about 6 a.m. Reuter advised him of the low fetal heart tone readings. Dr. Woolf checked the fetal heart tones himself, ordered oxygen, and took over the delivery and subsequent resuscitation effort. To facilitate delivery, Dr. Woolf administered a pudendal block, a local anesthesia, and performed a left medial episiotomy. Dr. MacLean arrived in the delivery room at 6:15 a.m. Jason Milstein was delivered at 6:18 a.m. by spontaneous delivery. At birth he had no heart beat, no respiration and was flaccid.

After the baby was delivered, Dr. Woolf asked Dr. MacLean to put Lois Milstein under general anesthesia. Dr. MacLean did so. At this point, Dr. MacLean had not been told of the low fetal heart tones and did not know the baby was in distress. As Jason Milstein was being delivered, Dr. Woolf suctioned his mouth, nasal pharynx and nose with a bulb syringe. Once the baby was delivered, Dr. Woolf placed him on a flat surface. He put a folded towel under the baby's neck to extend his head. He then placed a DeLee tracheal catheter in Jason Milstein's larynx, down the trachea. He kept the catheter in the proper position by keeping one finger of his left hand in the baby's mouth. Dr. Woolf had his right hand on the baby's chest so that two fingers were between the upper and lower third of the sternum. A hand on the baby's chest indicates whether there is bilateral inspiration of the chest and also allows the heartbeat to be felt. In ventilating the baby's lungs, Dr. Woolf held the catheter between his teeth and held the baby's chin up. Reuter delivered oxygen to Dr. Woolf's mouth with the oxygen tube and Dr. Woolf delivered it through the catheter to the infant's lungs. There was no resuscitator or anesthesia bag in the delivery room at the time of the birth, and no one monitored Jason Milstein's heart tones during the resuscitation.

Dr. Woolf performed the resuscitative actions for approximately 10 minutes. The baby's color changed from blue to pink which indicated that his circulatory system was receiving oxygen. The baby began taking breaths on his own, but whenever Dr. Woolf would stop breathing for him, Jason Milstein would stop breathing. Dr. Woolf then asked Dr. MacLean to insert an endotracheal tube. Dr. MacLean intubated Jason Milstein under direct vision, using a laryngoscope and an endotracheal tube. The baby was then connected to a mechanical Bennett resuscitator which had been brought to the delivery room by Reuter. Dr. Alter repaired Lois Milstein's episiotomy while Dr. Woolf resuscitated the baby.

Additional facts and testimony which are relevant to the issues on appeal will be related at the appropriate portions of this opinion.

Our disposition of this appeal obviates the need to relate damages testimony.

The plaintiffs' first argument is that the evidence presented at trial so overwhelmingly favors them when viewed in the light most favorable to the defendants (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504), that this court should enter a judgment notwithstanding the verdict for the plaintiffs. The plaintiffs make separate allegations of negligence against Reuter, Skokie Valley, and Matusik. The first is Reuter's alleged failure to communicate the condition of Lois Milstein to Drs. Woolf, Alter and MacLean.

The plaintiffs argue Reuter detected an abnormal condition when she took the fetal heart tones between 4:45 and 5 a.m. and that she then stated "Get Woolf. There's a problem." They further argue that Reuter was negligent by not informing Woolf of the "problem," and that this omission permitted the fetal distress to continue untreated for more than an hour prior to delivery. The plaintiffs point out that Reuter's "admission," as testified to by Lois Milstein, was never denied by Reuter. The plaintiffs contend that the entries on the medical chart are consistent with the existence of an emergency even though they concede that the chart itself may not establish such a situation.

The plaintiffs' expert witnesses, the defendants' expert witnesses, and the attending and treating neurologist each testified that Jason Milstein's oxygen deprivation commenced 20 minutes to an hour prior to the time he was delivered at 6:18 a.m. The experts also said that if a problem had been detected by Reuter between 4:45 and 5 a.m. and she failed to communicate that problem to Dr. Woolf, it was a deviation from the standard of acceptable nursing practice.

Reuter testified that she had no recollection of any of the events which occurred before 6 a.m. that morning. Reuter said, however, that the chart accurately reflected her findings. She also said that in the event of an emergency she would notify the medical officer on duty.

Lois Milstein testified that she was taken to the delivery room five or 10 minutes after Matusik told someone to get Dr. Woolf because there was "a problem," and that Dr. Woolf arrived in the delivery room five or 10 minutes after that.

The medical chart from the labor room, which was introduced into evidence, shows that Lois Milstein was checked by the staff at seven different times between 3:45 a.m. and 5:55 a.m. The fetal heart tones during that period of time ranged from 140 to 152. The chart contains no mention of a "problem" or "emergency." During opening statements the attorney for Skokie Valley and Matusik commented that "a chart does not contain everything done" and that the jurors should listen to the testimony.

Drs. William Gottschalk and Thomas McElin testified that the nursing care rendered in the case was in accordance with the standard of care to be given by a reasonably well qualified nursing staff in a community hospital at that time and place; that the number and manner of internal examinations were in accordance with the accepted standard of medical care; that the method and manner of measuring Lois Milstein's fetal heart tones during labor met the accepted standards for nursing care; and that the failure of Matusik to call an anesthesiologist to the scene prior to 5:55 a.m. was not a deviation from the accepted standard of care.

Dr. Ralph Benson, the plaintiffs' expert on nursing care, testified that if events transpired in the sequence reflected either in the hospital records or as related by Lois Milstein, he had "no criticism" of the nursing care rendered.

Dr. Alter testified that he had no way of knowing whether or not the Demerol and Phenergan impaired Lois Milstein's sensorium. Dr. Woolf testified that it was a short dose. Dr. Benson testified that although narcotics such as those can depress one's sensorium, oftentimes they will make one more lucid. Dr. Gottschalk testified that one would have no way of knowing whether or not Lois Milstein's sensorium was impaired.

Entry of judgment notwithstanding the verdict is proper only when "all of the evidence, viewed most favorably to [the opposing parties] so overwhelmingly favors [the movants] that no contrary verdict based on [the] evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 511, 229 N.E.2d 504, 514.) Because the plaintiffs are asking this court to enter judgment n.o.v., this is the standard under which we must evaluate the issues of negligence.

• 1 The plaintiffs initially argue Reuter's statement, as testified to by Lois Milstein, is an admission which stands uncontradicted and that it cannot be disregarded by the jury. While this is a correct statement of the law, it does not follow that the jury was obligated to believe that the statement was in fact made and therefore to conclude that the statement establishes negligence. The jury was not compelled to accept the plaintiffs' account of what happened but rather was permitted to consider surrounding circumstances and the probability or improbability of Lois Milstein's testimony. People v. Heflin (1978), 71 Ill.2d 525, 376 N.E.2d 1367; see also Ayers v. Metcalf (1866), 39 Ill. 307.

Based on the evidence as a whole, the jury was entitled to believe that there was no "emergency" or even a "problem" with the baby prior to the time that Reuter first detected the abnormally low fetal heart tones in the delivery room. The medical records showed normal fetal heart tones throughout the entire time that Lois Milstein was in the labor room and the defendants' experts testified that the nursing care provided to Lois Milstein met the appropriate standard of care. Furthermore, the jury would have been entitled to believe that the Demerol and Phenergan had some effect on Lois Milstein's perceptions. This is particularly true in light of Lois Milstein's testimony that she was taken to the delivery room five or 10 minutes after Reuter made the "Get Woolf" statement, a version of the events which conflicts with the plaintiffs' contention that the statement was made an hour before the delivery. Under these circumstances we cannot say that when the evidence is viewed most favorably to Reuter that it so overwhelmingly favors the plaintiffs that no contrary verdict could ever stand. We thus reject this first argument of the plaintiffs.

• 2 The plaintiffs next argue Skokie Valley was negligent in failing to have a resuscitator present in the delivery room.

During opening statements, Dr. Woolf's attorney conceded that there was no mechanical resuscitative equipment present in the delivery room at the time Jason Milstein was delivered. The plaintiffs rely on the testimony of Dr. McElin, Skokie Valley's expert, who said:

"I thought I was asked the question was it proper and correct in 1967 for a Bennett respirator to be in the delivery room, and my answer to that question was no. I did not feel that it was necessary to be there. You do not know for some several or more minutes — 3, 5, 6, 7 — whether you're going to want a Bennett; and, therefore, to have one in every delivery room would not be cost effective, not logical.

You would have one or two in a delivery unit in a central place. The nurse can be told to get it at minute 3 and have it there at minute 4."

Dr. McElin also testified "I do, indeed, believe that all equipment necessary for immediate neonatal resuscitation should be and should have been ...

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