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09/29/87 Crawford County State Bank v. Norah Grady

September 29, 1987

BONITA FORTHENBERRY, A MINOR, PLAINTIFF-APPELLEE

v.

NORAH GRADY, AS EX'R OF THE ESTATE OF W. F. GRADY, DECEASED, DEFENDANT AND THIRD-PARTY PLAINTIFF



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

CRAWFORD COUNTY STATE BANK, as Guardian of the Estate of

(Lakeview Medical Center, Defendant-Appellant;

James Forthenberry et al., Third-Party, Defendants)

514 N.E.2d 532, 161 Ill. App. 3d 332, 112 Ill. Dec. 869

Appeal from the Circuit Court of Vermilion County; the Hon. William J. Sunderman, Judge, presiding. 1987.IL.1457

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

At 9:49 a.m. on February 26, 1979, Bonita Forthenberry, a four-month-old child, was presented by her parents at the emergency room of Lakeview Medical Center in Danville, Illinois. The child was diagnosed as having viral gastroenteritis and suffering from dehydration and acidosis. Efforts were made to locate the family pediatrician, Dr. W. F. Grady. In the meantime, an emergency-room physician ordered blood tests, and an aspirin suppository was administered.

Upon Dr. Grady's arrival, following his examination and further testing, he attempted to initiate intravenous therapy in an effort to reverse the dehydration being experienced by the child. The initial effort was in the form of a cut-down procedure in the right saphenous vein, in the area of the right ankle, but the effort was unsuccessful. Dr. Grady then initiated IV therapy in the right femoral area. The right leg was restrained and immobilized as part of the therapy.

Beginning in the evening of February 26, various signs were noted and charted relative to the child's condition, such as swelling, hardness of the hip and leg, the leg's being cold to the touch, and color changes. The IV therapy was ended on February 28, 1979. Hospital records indicate that heat was applied to Bonita's leg at various times while Bonita was a patient at Lakeview.

Problems continued with Bonita Forthenberry's right leg and foot. Gangrene was indicated in the right foot as of March 1, 1979. On March 7, 1979, Bonita Forthenberry was transferred to Riley Children's Hospital in Indianapolis, Indiana, where, a few days later, her right foot was amputated.

On January 21, 1983, this action was brought by Crawford County State Bank, as guardian of the estate of Bonita Forthenberry, to recover damages occasioned by the alleged negligence of defendant, Dr. W. F. Grady, in regard to his medical care and treatment of Bonita Forthenberry. Subsequently, plaintiff was granted leave to amend its complaint, and Lakeview was added as a party defendant. On August 18, 1986, a jury trial commenced in this action. On August 28, 1986, the jury rendered a verdict of $1,214,548.55 for the plaintiff and against both defendants, upon which the court entered the judgment from which this appeal by Lakeview is taken.

The first arguments raised by Lakeview on appeal relate to the testimony of expert witnesses by the plaintiff which Lakeview contends violated an order in limine and Supreme Court Rule 220 (107 Ill. 2d R. 220).

Dr. John Herbst was called by the plaintiff as a physician expert in this case. In early May 1986, Dr. Herbst compiled a medical report regarding the treatment Bonita received during her stay at Lakeview, a copy of which was sent to Lakeview. On May 29, 1986, the deposition of Dr. Herbst was taken in Shreveport, Louisiana.

Prior to trial, defendant filed a motion in limine as to the testimony of Dr. Herbst. Among other things, the motion asked that Dr. Herbst be precluded from testifying to the following:

Any opinions or Conclusions relating to or pertaining to criticisms of Defendant, Lakeview Medical Center other than application of hot moist packs for the reason at his deposition, Dr. Herbst offered criticisms of Lakeview Medical Center only to the extent of the application of the hot moist packs and had no other criticism."

In his written medical report, Dr. Herbst stated the following:

"By 12:30 a.m. on February 27, both buttock and thigh were noted to be swollen on Nurses' notes. Dr. Grady was called at 12:25 a.m. and given lab results. If he was not informed of swelling, it would have been a breach of standards of care. In a similar way the foot became cold during the night. Despite documenting a serious problem nothing was done to prevent further problems or treat the serious problem now more fully manifested."

Only selected excerpts from Dr. Herbst's depositions are included in the record. Consequently, it is impossible to definitively determine precisely what questions regarding Lakeview and the nursing staff were asked of Dr. Herbst during the deposition. When the attorney for Lakeview was questioning Dr. Herbst, the following colloquy transpired:

"Q. Now, do you have any other criticisms of --

A. No.

Q. -- Lakeview."

From the form of the foregoing question, which was asked of Dr. Herbst by Lakeview's attorney, we can assume that Dr. Herbst had expressed at least one criticism of Lakeview's treatment of Bonita. However, it is impossible for this court to determine the nature and extent of this criticism based on the record presented for review.

During the argument on the motion in limine, the following colloquy transpired:

"MR. BERNTHAL: There is one more motion in limine that is with respect to Dr. Herbst. The first part of this motion in limine pertaining to Dr. Herbst is similar to the first part of de Meneses motion. We are asking he be barred from offering previously undisclosed criticisms. . . . The fourth part as to, I think, if I may borrow my motion a second, sort of more of a refinement of part 1 in the sense of limiting his criticism to the application of the hot packs, because in his deposition he testified, 'In general . . .' -- I have this page attached -- '. . . the hospital acted very reasonably.' But he was definite in his criticisms regarding the hot packs and in a series of questions set forth there. I asked him if ...


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