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10/25/88 Rita M. Richter, v. Northwestern Memorial

October 25, 1988





532 N.E.2d 269, 177 Ill. App. 3d 247, 126 Ill. Dec. 584 1988.IL.1565

Appeal from the Circuit Court of Cook County; the Hon. James E. Sullivan, Judge, presiding.

Rehearing Denied January 12, 1989.


JUSTICE SCARIANO delivered the opinion of the court. STAMOS* and BILANDIC, JJ., concur.


Plaintiff Rita Richter's personal injury action sought damages for the alleged malpractice of certain doctors and of the Northwestern Memorial Hospital, asserting that Dr. Seymour Diamond and the Diamond Headache Clinic, Ltd. (hereinafter jointly referred to as Diamond), were negligent in failing over the six-year period during which they were treating her for headaches to diagnose a brain tumor which had to be removed surgically, and that Dr. Edir B. Siqueira, the surgeon who removed the tumor, and Northwestern Memorial Hospital, the facility where the operation was performed, negligently conducted her post-operative treatment, resulting in a stroke.

On October 31, 1986, the jury returned a verdict finding all defendants negligent and jointly and severally liable for Richter's damages in the amount of $15,787,555. On April 20, 1987, the trial court ordered a remittitur of $382,709 because the jury had added that amount for "medical supplies" by writing it in on the itemized verdict form. The court ruled that this item had been properly included under "medical expenses" in the itemized verdict form.

After the court denied the hospital's post-trial motion, and more than six months after judgment, the hospital moved to reduce the judgment by 50% of any collateral source benefits the plaintiff had received. The trial Judge issued an order denying the motion as being untimely. In that same order he reduced the amount of the judgment to reflect the prior remittitur and a setoff resulting from the plaintiff's $100,000 settlement with Dr. John H. Buehler, who was dismissed from the case prior to trial. The court also found that the judgment was partially satisfied as a consequence of a $6 million post-trial settlement between Richter and Diamond. In April 1987 Siqueira offered Richter $1 million, the limits of his malpractice coverage. Although plaintiff accepted the money after the hospital's notice of appeal was filed, and thus her acceptance is not of record, the record does reflect Siqueira's offer and the trial court's treatment of it as a credit against the judgment.

To summarize in non-technical language, Richter suffered from the effects of a developing, but for many years undiagnosed, brain tumor. When the tumor ultimately was discovered, it had developed to such a size that surgery was required to save her life; however, even such radical treatment would result in certain unavoidable injuries. Richter's cause of action against Diamond was based on the theory that the tumor was developing while she was under his care and that he was negligent in failing to diagnose it.

In order to minimize the effects of the developing brain tumor, Richter entered the hospital and had the tumor surgically removed by Siqueira. While convalescing from the operation, Richter contracted pneumonia, which she alleged resulted in bacterial meningitis, and eventually a stroke. Plaintiff's causes of action against Siqueira and the hospital were based on the theory that each of these defendants was guilty of negligent acts or omissions which contributed to her development of pneumonia, meningitis, and a stroke.

The chronology of the facts in this case can be divided into two parts. The first period commences on March 27, 1973, when Richter first saw Diamond, and concludes at 8:45 p.m. on February 8, 1979, the time of the hospital's first allegedly negligent act. The second period goes from February 8 to March 17, 1979, the date on which Richter suffered her stroke.

Date to february 8, 1979: MARCH 27, 1973

Richter first saw Diamond March 27, 1973, when she complained of headaches, and had contact with him regarding her problem about 47 times during a period of almost six years. She last visited him on January 8, 1979, during which visit she complained of dizziness and blurred vision. Her last contact with him was on January 25, 1979, when she told him in a telephone conversation that she still had the same ailments, plus neck pain.

On February 2, 1979, Richter saw ophthalmologist Dr. Paul Hauser, who diagnosed a severe case of papilledema and referred Richter to her internist, Dr. Buehler. Buehler saw her the next day and suggested immediate admission into the hospital for treatment of a possible brain tumor; accordingly, Richter entered Northwestern Memorial Hospital on February 4, 1979.

Richter was diagnosed two days later as suffering from a large acoustic neuroma, requiring immediate surgical removal. Progress notes prior to surgery indicate that Richter was suffering from a partial loss of hearing in the right ear, a slight facial paralysis on the right side, impairment of the gag reflex, nystagmus of the right eye, partial loss of functioning of the tongue, impairment of vision in the right eye, ataxia, and impaired coordination.

Siqueira surgically removed the tumor during a 12-hour operation on February 8, 1979. The operation and related nerve damage left Richter with total, permanent hearing loss in the right ear, total facial paralysis on the right side, and impairment of the gag reflex and vocal cord paralysis. There was no testimony or allegation that the surgery was either unnecessary or performed improperly; neither is there any dispute as to the fact that Richter had consented to proceed with the operation despite being informed of the concomitant risks. She also continued to suffer from several of her preoperation ailments, as she had been told she would and had consented to, namely, loss of the corneal reflex, nystagmus of the right eye, partial loss of functioning of the tongue, the impairment of vision in the right eye, and ataxia.

Date to march 17, 1979: FEBRUARY 8, 1979

According to Richter, the hospital was first negligent on February 8, 1979, at 8:45 p.m., when Dr. Fred Lang, an anesthesiology resident and a member of the Respiratory Care Physicians Service, removed an endotracheal tube from Richter. She alleges that this first post-operative extubation made it more likely that she would aspirate foreign contents into her lungs and develop pneumonia. She was reintubated on February 9 at 1:45 a.m.

That same day at 7:20 a.m., Dr. George Katele, an anesthesiology resident and also a member of the Respiratory Care Service, extubated Richter for the second time, and she remained so until intubated for a third time that evening. The third extubation was performed by Katele on February 10, 1979, at noon, but the tube was inserted once more less than two hours later, at 1:45 p.m. Richter remained intubated until February 13, when a tracheostomy tube was placed in her throat, obviating the need for an endotracheal tube, which, accordingly, was removed.

Two days later Richter developed a fever. At approximately 6 p.m. that day Dr. Frank P. Shinco, a neurosurgery resident, ordered penicillin for Richter. Plaintiff contends that this drug is effective against only gram-positive bacteria and that a drug ...

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