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First National Bank v. Porter





Appeal from the Circuit Court of McHenry County; the Hon. Roland A. Herrmann, Judge, presiding.


Rehearing denied May 10, 1983.

Plaintiffs, First National Bank of Chicago (as special guardian for the estate of Jason Toepper, a minor), Jane Toepper and Jim Toepper, appeal from a directed verdict in favor of defendant, Richard Randall Adams, M.D., at the close of plaintiffs' case and from directed verdicts in favor of all other defendants, G. Sherman Porter, M.D., McHenry Hospital (hospital), Ruth Miller Ramsey, R.N., and Lee Lull Ulrich, R.N., entered after a jury failed to reach a verdict. The plaintiffs' complaint alleged that all defendants committed medical malpractice during the delivery and birth of Jason Toepper on January 24, 1978, or during the treatment leading up to his delivery. They claim defendants' actions resulted in severe brain damage to Jason.

Plaintiffs raise the following issues on appeal: (1) did the trial court lack authority to enter directed verdicts after discharging the jury and declaring a mistrial; (2) did the trial court erroneously enter directed verdicts under the Pedrick standard; (3) did the court commit trial errors which prejudiced plaintiffs; and (4) should the trial court have directed a verdict on liability for plaintiffs.

We summarize only the facts necessary for an understanding of the issues decided. Ronald Cooker, R.N., the director of nursing services at defendant hospital, called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60), recodified as section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102) testified that the hospital had an obstetrical nursing manual which delineated the responsibilities of obstetrical nurses. The nurses were expected to follow the guidelines in the manual.

The manual provided that nurses were to do a vaginal pre-check examination of women who came to the obstetrical department (department) believing themselves to be in labor. The examination was to check dilation of the cervix and to determine if the woman was in active labor. The nurse was then to report the findings to a physician, who would determine whether the woman should be sent home or kept at the hospital. The purpose of this policy was stated to be the protection of the hospital, the nurses, and the patient in case something happened to the patient after she was sent home.

Cooker testified that he learned the nurses were not, in all cases, checking with a doctor before sending women home, and, that he discussed this with Dr. Porter, the chairman of the department, in the fall of 1977. Dr. Porter told him they had always done things that way and that it had never been a problem.

Plaintiffs called defendant G. Sherman Porter, M.D., under section 60. He testified he was a certified specialist in obstetrics and gynecology and chairman of the department at the hospital. In 1977 he was vice-president of the hospital's medical staff and was president of that staff in 1978.

When Dr. Porter arrived at the hospital in 1965, the nursing service had a "standing sort of thing" where a nurse would do the pre-check vaginal examination, determine if the woman was in labor, and if she were not, the nurse would send her home. In April 1977 a new procedure, which Dr. Porter agreed to, came into effect. Under it the nurses no longer had a judgment role in deciding whether to discharge. Rather, they were to call a doctor who would make that decision. He stated that he expected the obstetrical nurses to call him day or night under this procedure, when he was the on-call physician. He testified he never told the nurses not to bother him at night.

He testified that, prior to January 24, 1978, he had provided the department with Jane Toepper's prenatal record. He said a doctor was available at all times, to be called by the department's nurses in case something that only the doctor knew about had happened between the time the prenatal report was given to the department and the time the woman came to the labor room.

Dr. Porter's standing orders called for electronic fetal monitoring for patients in labor. These orders applied to women in active labor.

Dr. Porter testified that he believed it was within the standard of care for a nurse to conduct a pre-check examination.

Defendant Ruth Miller Ramsey, R.N., testified under section 60 examination. She testified that no physician had taught her how to do vaginal pre-check examinations. She had developed her own technique. She stated that the progress of a woman's labor could be determined by performing these examinations over a period of time and by comparing the changes that occurred.

Nurse Ramsey testified she had no independent recollection of Jane Toepper's arrival at the hospital at 2:15 a.m. on January 24, 1978. Referring to the hospital record, she determined that she performed a vaginal examination on Jane Toepper at 2:15 a.m. Jane Toepper was admitted at 2:15 a.m. and discharged at 2:30 a.m. The record noted no dilation of the cervix, thick effacement (less than 50% effaced), that the baby was at zero station, and that she could not determine which part of the baby was coming down the birth canal first. She charted the fetal heart tones (FHT) as 132 per minute. She measured them by use of either a Dopp tone device or a fetoscope. She charted Braxton Hicks contractions (false labor) at 2:30 a.m. The chart indicated that Jane Toepper's membranes had been stripped on January 23, 1978. She did not call a physician before discharging her. She was unaware of nursing manual requirements that a physician be contacted before discharge.

She testified that she did not know whose handwriting appeared on the "Delivery and Newborn Record" or who wrote the Apgar scores. Apgar scores show the condition of the baby at one and five minutes after birth. A score of 10 is perfect and seven is normal. Jason's scores were recorded as seven at one minute and nine at five minutes.

Plaintiffs called defendant Richard Randall Adams, M.D., under section 60. He was employed by the McHenry Medical Group, a firm of which Dr. Porter was a member.

Dr. Adams stated Dr. Porter had a verbal rule that nurses were to make admission decisions based on the vaginal examination they conducted. The written orders were contrary to this verbal understanding.

Dr. Adams first saw Jane Toepper December 27, 1977. He also saw her January 23, 1978. Up to this time the pregnancy had been uneventful. The baby was at zero station and coming into the birth canal. Jane Toepper's cervix was 80% effaced. He stripped the membranes to "enhance" delivery. He felt the baby's head through the bag of waters, and therefore knew the head was the first part of the baby to enter the birth canal. The cervix was favorable to delivery and he expected contractions would start in about 24 hours.

Dr. Adams was on call the night of January 23-24, 1978, and left a number where he could be reached. He was first contacted between 5:20 a.m. and 5:30 a.m. January 24, 1978.

He stated that only in two rare instances would a woman who was 80% effaced have a thick cervix: (1) if she was pushing against an undilated cervix; or (2) if she was having a dysfunctional labor. Both cases require the patient to be in labor. It would be important for a doctor to know if this later thickening had occurred.

When he was telephoned between 5:20 and 5:30 a.m. he was informed Jane Toepper was at plus two station (i.e., the baby was making progress down the birth canal from zero station), that the bag of waters had broken, and that meconium (baby's fecal matter) was in the amniotic fluid. Meconium is a sign of possible fetal distress.

Upon his arrival at the hospital, he told Jane Toepper to push. When he examined her, he found fresh meconium. Fresh meconium meant "something acute" had happened within the previous 12 to 24 hours. With meconium present, it is important to check the FHT. He testified that if there was a change in the FHT from the onset to the ...

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