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12/29/87 Jacqueline Rae Marshall, v. University of Chicago

December 29, 1987

JACQUELINE RAE MARSHALL, PLAINTIFF-APPELLEE

v.

UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS ET AL., DEFENDANTS-APPELLANTS

THE JURY RETURNED A VERDICT OF $20,000 FOR THE PLAINTIFF. THE TRIAL COURT DENIED DEFENDANTS' POST-TRIAL MOTION FOR JUDGMENT N.O

v.

OR FOR A NEW TRIAL. DEFENDANTS APPEAL.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

520 N.E.2d 740, 165 Ill. App. 3d 754, 117 Ill. Dec. 389 1987.IL.1927

Appeal from the Circuit Court of Cook County; the Hon. Walter B. Bieschke, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff brought a medical malpractice action against the defendant hospitals because she got pregnant with her fifth child approximately 11 months after elective surgical sterilization by tubal ligation. Plaintiff's original complaint alleged that because of the negligent tubal ligation, she became pregnant. When the negligent count was dropped, plaintiff filed an amended complaint alleging that the defendants failed to inform her that there was a 1% chance of failure of tubal ligation to prevent future pregnancies. She further alleged that had she known the failure rate of 1%, she would not have undergone that procedure. This is the sole basis for the alleged malpractice.

In May 1976, while pregnant with her fourth child, plaintiff was receiving prenatal care at the defendant hospitals. She was a borderline diabetic, was financially strapped, experiencing marital difficulties, and consequently did not want to have any more children. On May 13, 1976, she discussed the relative merits of various forms of birth control with a resident physician at the defendant hospitals. Plaintiff informed the resident physician that she was not interested in birth control pills because she used them before and they made her sick. She also told him that she became pregnant while using a contraceptive cream.

The resident physician testified that he explained the merits of the various options and gave the plaintiff a brochure entitled "Voluntary Sterilization for Women" to read and discuss with her husband. The three-page brochure consisted of information taken from the Planned Parenthood Association. It stated that tubal ligation is a "virtually certain" form of birth control and should be regarded as permanent because it was rarely possible to repair tubes surgically if a woman wanted to have more children. Plaintiff testified that she understood "virtually certain" to mean she would never get pregnant again.

On May 13, 1976, plaintiff also signed a "Consent for Non-Therapeutic Sterilization" which consisted of one page with information on the front and back. The first page states in part:

"The risk of failure must be recognized but the percentage of pregnancy subsequent to sterilization is small."

Plaintiff's signature appeared on the other side of the document. She testified that she never saw the side with the risk of failure information. The resident physician testified that the risk of failure was explained to the plaintiff and that she was given an opportunity to ask questions.

On May 29, 1976, at about 3:30 a.m., plaintiff was admitted to the defendant hospitals to deliver her fourth child and gave birth approximately an hour later. The surgeon testified that he saw the plaintiff after the delivery, explained the tubal ligation procedure and failure rate, and obtained another written consent form. The explanation took 10 to 15 minutes and plaintiff was given an opportunity to ask questions. She was not mentally impaired in any way. Plaintiff testified that she never read the consent form.

The tubal ligation was performed at about 8 a.m. on May 29, 1976, about 3 1/2 hours after delivery and about 1 1/2 hours after signing the consent form.

Approximately 11 to 12 months after the tubal ligation, plaintiff got pregnant with her fifth child. She delivered that child on January 17, 1978, at Michael Reese Hospital. Immediately after the birth of that child, ...


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