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No. Trust Co. v. L.a. Weiss Mem. Hospital





Appeal from the Circuit Court of Cook County; the Hon. James H. Felt, Judge, presiding. PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 29, 1986.

Plaintiff Billy Collins, as father and next friend of Donna Faye Collins, brought a medical malpractice suit against defendants Louis A. Weiss Memorial Hospital (Weiss Hospital), Tomasa Rubiano, R.N., Shirley Anderson, R.N., and Albert F. Stein, M.D., seeking money damages for Donna's injuries. Billy and Janice Collins also brought suit against the same defendants on their own behalf, seeking reimbursement for medical care for Donna. Northern Trust Company was substituted as plaintiff when it was appointed guardian of Donna's estate. The jury returned verdicts in favor of defendants Rubiano, Anderson and Stein, but it returned verdicts against defendant Weiss Hospital in the amount of $1,500,000 for injury to Donna and in the amount of $30,011.41 for medical expenses that Billy and Janice incurred in caring for Donna. Weiss Hospital appeals from the verdicts against it, and plaintiffs appeal from the verdict in favor of Anderson. We affirm the verdicts in favor of Donna Collins and Nurse Anderson, and we reverse the verdict in favor of Billy and Janice Collins.

After a normal pregnancy, Janice Collins gave birth to a daughter, Donna Faye Collins, at Weiss Hospital at 11:35 a.m. on September 23, 1970. Shortly before delivering Donna, Dr. Jarolim artificially ruptured the membrane which contained Donna and amniotic fluid. He noticed that there was copious meconium, fecal matter of the fetus, in the amniotic fluid. The meconium indicated that the baby had undergone some trauma within the day before delivery.

The medical staff measured Donna's health shortly after birth using the Apgar test. After one minute of life, Donna's Apgar score was seven, showing acceptable health; after five minutes her score was ten, showing excellent health. Her cry was weak and her color was slightly bluish, but both her cry and her color were not seriously abnormal for a newborn baby. Dr. Jarolim had Donna placed in an isolette with oxygen and transferred her to the newborn nursery at the hospital. Weiss Hospital did not have any facilities for taking care of sick babies. Its nursery was strictly a "well baby" nursery.

Defendant Dr. Stein gave Donna a complete examination at 2:30 p.m. and he found her to be basically in good condition. However, he noted that her respirations were rapid at times, and he knew that Donna became bluish (showing inadequate oxygen) when she was removed from the isolette for examination. Defendant Tomasa Rubiano took care of Donna from 3 p.m. to 11 p.m. in the nursery. Donna progressed fairly well over this time, but her respirations remained shallow and rapid. Nurse Rubiano called Dr. Stein to report on the baby's condition, and he ordered that Donna not be given any food by mouth until the next morning.

Defendant Shirley Anderson took care of Donna from 11 p.m. on September 23 until 7 a.m. on September 24. At 11:30 p.m. she recorded that Donna's respirations had become very rapid: Donna took 150 breaths per minute, doubling the rate she showed at 8 p.m., and far in excess of the normal rate of 30 to 60 breaths per minute. Donna's temperature was 100°, up from a 4:30 p.m. reading of 96°, and from an 8 p.m. reading of 98.6°. The normal temperature, rectally measured, is 99.6°, so Donna's temperature was .4 of one degree high at 11:30 p.m.

Donna's respirations were in the normal range, at 54 per minute, at 12:30 a.m. Her color remained good in the isolette. By 2:30 a.m., Donna's respirations were back up to 100 per minute. At 3:50 a.m., she vomitted a large amount of thick, green mucus while her respirations remained rapid. At 5 a.m. Nurse Anderson recorded that Donna's temperature rose to 100.4° despite a decrease in the isolette temperature. Donna's respirations remained rapid (128 respirations per minute) and her color appeared dusky at times. By 5:30 a.m. Donna was experiencing slight retractions, which indicate that she was having substantial respiratory distress. Around 6 a.m. Donna vomited brown mucus. Nurse Anderson called Dr. Stein sometime around 6 a.m. and informed him of Donna's condition. Dr. Stein ordered increased oxygen in the isolette, and he arranged for Donna's transfer to Children's Memorial Hospital, which has facilities for the care of sick babies. He arrived at Weiss Hospital around 8:15 a.m. on September 24, and he gave Donna another complete examination. When she was transferred at 9:30 a.m., she was grunting and beginning to appear flaccid. According to plaintiffs' expert, the flaccidity indicated that Donna was beginning to suffer brain damage.

Donna remained at Children's Memorial Hospital until October 14, 1970, when she was discharged to the care of her parents. She had already suffered severe brain damage. Her discharge diagnosis was "Klebsiella sepsis," which is an infection caused by the Klebsiella bacteria. She is retarded, and she will never be able to take care of herself or work in a competitive, productive work situation.

In November 1978, Billy Collins, as father and next friend of Donna Collins, brought this action against Weiss Hospital, Nurse Anderson, Nurse Rubiano, Dr. Stein and other individuals not involved in this appeal. Plaintiffs charged that all of the defendants negligently failed to provide Donna with medical care consistent with the standards prevailing in 1970, and that as a result of that negligence Donna is brain damaged and retarded. Billy and Janice Collins also sued for past and future medical expenses related to treatment for Donna's brain damage.

After trial the jury returned verdicts in favor of defendants Nurse Anderson, Nurse Rubiano and Dr. Stein, but the jury found Weiss Hospital liable.

Weiss Hospital appeals, arguing (1) that the verdicts are inconsistent, (2) that plaintiffs failed to show that defendants proximately caused the injury, (3) that the trial court erroneously interpreted pertinent regulations, (4) that the trial court improperly excluded the testimony of one of defendants' experts, and (5) that the trial court instructed the jury incorrectly. Weiss Hospital contends that the claim brought by Donna's parents is barred by the statute of limitations. Plaintiffs also appeal, arguing that the verdict in favor of Nurse Anderson is contrary to the manifest weight of the evidence. Plaintiffs do not appeal from the judgments in favor of other defendants.


• 1 First, Weiss Hospital argues that the verdict against the hospital is inconsistent with the verdicts in favor of the individual defendants. Plaintiffs concede that the hospital cannot be liable on a respondeat superior theory if the individual defendants are not liable. However, plaintiffs contend that Weiss Hospital can be held independently liable for its failure to provide a specially trained nurse to supervise Donna's overnight care on September 23, to September 24, 1970.

Between 11:30 p.m. on September 23 and 7 a.m. on September 24, 1970, the sole nurse on duty in Weiss Hospital's nursery was defendant Anderson. Anderson received her nursing degree in 1969, upon completion of a three-year nursing program in Pennsylvania. Anderson testified that she had approximately five weeks of training in newborn care during her three years in nursing school. Approximately 2 1/2 weeks were devoted to hands-on care for babies, and Anderson never took care of sick newborns while she was in nursing school. Anderson could not recall any further training or experience in newborn care between her graduation and July of 1970, when she was hired by Weiss Hospital. Between July and September of 1970, Anderson worked for the maternity department of Weiss Hospital, dividing her time between the labor-delivery unit, the postpartum unit, and the newborn nursery. Nurse Charlene Ehlscheid oriented Anderson in the nursery, showing Anderson the routine and the policies and procedures of the unit, and working with her until both Anderson and Ehlscheid felt that Anderson was ready to work independently. Anderson had no choice of where or when she would work. She was assigned to work the overnight shift on September 23-24, 1970.

According to the regulations of the Chicago board of health in effect during September 1970, "[t]here shall be one registered professional nurse specially trained in the care of newborn and premature infants supervising each nursery at all times." The trial court instructed the jurors that, if they found that a party had violated that regulation, they could take that violation into consideration in determining whether or not the party was negligent. The trial court further instructed the jurors that they could find Weiss Hospital liable if they found that it negligently "[f]ailed to provide registered professional nurses with special training in the care of the newborn supervising the care of Donna Collins at all times," and if they found that the failure proximately caused Donna's injuries. Plaintiffs rely on this instruction as grounds for supporting the jury's verdict.

Weiss Hospital argues that this instruction states only a "special training" theory against the hospital, and the hospital is not liable under that theory unless its inadequately trained employee is also liable, citing Rogina v. Midwest Flying Service, Inc. (1945), 325 Ill. App. 588, 60 N.E.2d 633, and other cases. However, in all cases defendant cites, the employer was held to the same standard of care as the employee. In the instant case, the court correctly instructed the jury that Anderson was required to "possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified nurses * * * in similar cases and circumstances. A failure to do so is a form of negligence that is called malpractice."

The jury reasonably could have found that Anderson had and applied the knowledge and used the care of a reasonably well-qualified nurse observing newborns, and that what was lacking was the supervision of a specially trained nurse. Nurse Anderson would have met the applicable standard of care by conscientiously charting the progress of the infants. The hospital alone is responsible for providing a nurse to supervise the nursery, and that supervising nurse must be specially trained so that she can appropriately judge when there is an emergency which warrants calling a doctor. (See Story v. McCurtain Memorial Medical Management, Inc. (Okla. App. 1981), 634 P.2d 778, 780.) The jury evidently found that Weiss Hospital negligently failed to provide a specially trained nurse to supervise Anderson, even though Anderson performed the duties appropriately assigned to her in accordance with the standard of care. Therefore, we find that the verdict against Weiss Hospital is not inconsistent with the verdicts in favor of all individual defendants. See Cohen v. Sager (1971), 2 Ill. App.3d 1018, 1019, 278 N.E.2d 453.


Weiss Hospital maintains that the evidence cannot support a finding that Weiss Hospital's failure to provide a specially trained nurse proximately caused Donna's brain damage. Plaintiffs presented evidence that Donna was healthy at birth, and her condition deteriorated during the 20 hours she was at Weiss Hospital. Plaintiffs' expert on meconium aspiration, Dr. Gregory, testified that, to a reasonable degree of medical certainty, he believed that Donna experienced meconium aspiration at Weiss Hospital, and the meconium aspiration caused Donna's brain damage. *fn1 He testified that under the standard of care in 1970, a specially trained nurse should ...

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