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08/24/87 Erica Henry, By Her Mother v. St. John's Hospital Et Al.

August 24, 1987

ERICA HENRY, BY HER MOTHER AND NEXT FRIEND, JANE HENRY, PLAINTIFF-APPELLEE

v.

ST. JOHN'S HOSPITAL ET AL., DEFENDANTS-APPELLANTS, AND (BREON LABORATORIES, INC., ET AL., DEFENDANTS-APPELLEES; THOMAS O'HERN, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

512 N.E.2d 1044, 159 Ill. App. 3d 725, 111 Ill. Dec. 503 1987.IL.1227

Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Defendants St. John's Hospital and Dr. Shari Fitzgerald (St. John's-Fitzgerald) appeal a jury finding in plaintiff's favor in her medical malpractice action. St. John's-Fitzgerald argues the trial court erred: in its rulings on directed verdict and judgment notwithstanding the verdict with regard to them; in denying St. John's-Fitzgerald's motion to dismiss a counterclaim; in denying St. John's-Fitzgerald's motion to file a counterclaim; and in instructing the jury. St. John's-Fitzgerald also argues the compensatory damages award was excessive.

We affirm.

The genesis of this action is a medical malpractice-products liability claim brought by plaintiff, a minor. Plaintiff has cerebral palsy. Prior to her birth, her mother was given two paracervical blocks using the drug Marcaine (bupivacaine). The first paracervical block was administered by her physician, Dr. Thomas O'Hern. The second paracervical block was administered by a hospital resident, Fitzgerald. Immediately after administration of the second paracervical block, plaintiff suffered an episode of bradycardia (abnormally slow fetal heartbeat), which lasted until her birth. Plaintiff sued O'Hern, Fitzgerald, the manufacturer and distributor of Marcaine, and St. John's Hospital on a theory of respondeat superior.

The trial court directed a verdict in favor of O'Hern. The court found as a matter of law that Fitzgerald and thus, St. John's Hospital, violated the standard of care and directed a verdict as to that issue. The court left open the causation issue. The jury returned a verdict against the resident, the hospital, the manufacturer of the drug, and the distributor of the drug. It assessed $10 million in compensatory damages. The compensatory damages award was apportioned between the parties, with St. John's-Fitzgerald responsible for 7% of the award. Subsequently, the trial court reduced the medical expenses portion of the compensatory damages award to $11,759. The products liability defendants settled. Only the facts necessary to a determination of the issues raised by St. John's-Fitzgerald will be addressed.

Plaintiff's mother, Jane Henry, entered St. John's Hospital for the induction of labor. Her pregnancy had been uncomplicated; however, O'Hern testified that he was concerned she might reach a post-mature state. O'Hern attached an external fetal monitor, which showed a good fetal heart variability and rate. He then started a drug to induce labor. At 10:30 a.m., O'Hern attached an internal fetal monitor and administered 8 cc's of Marcaine bilaterally at the 3 o'clock and 9 o'clock positions. After completing the paracervical block, he observed the fetal heart monitor for 15 minutes, during which time the fetal heart rate and beat variability were unchanged. O'Hern left and went to his office.

Jane Henry testified the paracervical block provided some relief but the relief lasted only 10 to 15 minutes. Fitzgerald administered the second block. Fitzgerald testified that she was a first-year resident at St. John's Hospital doing her first rotation in obstetrics when she administered a second paracervical block to Jane Henry at 11 a.m. It took her 10 minutes to complete the procedure, which she performed using a method she had been taught. She injected 6 cc's of Marcaine on the left side, and although she filled the syringe to 4 to 5 cc's for the right side, she lost a lot of the drug prior to injection.

O'Hern was called back to the hospital and told bradycardia had developed. Plaintiff, Erica, had lapsed into severe bradycardia for at least five minutes prior to O'Hern's return. Bradycardia is evidence of fetal distress. If sudden and prolonged, it may be evidence of fetal asphyxia. Additionally, bradycardia can cause asphyxia.

O'Hern was told that a repeat block had been given at 11:10 a.m. O'Hern stated that he had seldom seen severe bradycardia but the effect of anesthesia is dose-related. The labor flow charts indicated that Jane Henry was given an additional 6 cc's of Marcaine per side. He did not authorize the second block and would not have administered 6 cc's per side in addition to the previous dosage within 30 minutes of the initial dose. O'Hern stated that he would not have given a repeat block on both sides because the nursing notes indicate that the patient complained of pain only on her left side. However, the determination of when a repeat block is necessary is a matter of judgment, and one may be appropriate within 30 minutes.

O'Hern further stated it is not acceptable practice in the Springfield medical community for a second paracervical block to be given without authorization from the attending physician. O'Hern admitted wide variations in ...


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