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11/29/88 Brittany K. Barkei, A v. Delnor Hospital

November 29, 1988

BRITTANY K. BARKEI, A MINOR BY KATHLEEN BARKEI, HER MOTHER AND NEXT FRIEND, ET AL., PLAINTIFFS-APPELLEES

v.

DELNOR HOSPITAL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

531 N.E.2d 413, 176 Ill. App. 3d 681, 126 Ill. Dec. 118 1988.IL.1716

Appeal from the Circuit Court of Kane County; the Hon. James F. Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Defendant, Delnor Hospital, appeals from a judgment entered upon verdicts returned by a jury totaling $2,089,886.92 in favor of plaintiffs, Brittany Barkei, a minor, and Kathleen and Randall Barkei, the minor's parents. In this action, plaintiffs sought recovery of damages for personal injuries alleged to have been sustained by the infant minor after her birth and while being cared for in the hospital nursery, and the parents sought additional damages for the loss of the child's society as a result of her injuries. Plaintiffs pleaded both specific acts of negligence on the part of defendant hospital and general negligence under a res ipsa loquitur theory, both of which were submitted to the jury, which returned general verdicts for plaintiffs on which the trial court entered judgment. Defendant appeals, contending that the court erred (1) by denying defendant's motion for directed verdict at the close of plaintiffs' case, (2) by giving instructions to the jury on both of plaintiffs' theories of negligence, (3) by barring impeachment of one of plaintiffs' key witnesses, and (4) by submitting to the jury a cause of action for loss of the child's society. We affirm in part and reverse in part.

Brittany Barkei was born at Delnor Hospital on January 1, 1978, in a breech presentation, meaning that her posterior, rather than her head, appeared first. Dr. John Lamiot performed the delivery. The infant sustained a bruise on her buttock and a hematoma on the labia during the birth, and immediately after delivery she also experienced some degree of respiratory distress due to the nature of her birth. The infant's respiratory problems dissipated rather quickly, but on January 4 the doctors discovered a hematoma on the back of her head at the base of her skull and noticed that her left arm had become limp and immobile. Both a fracture of the cervical spine and a spinal cord injury were suspected, and Brittany was transferred to another hospital for further care.

In 1981 Brittany and her parents initiated this action against both Delnor Hospital and Dr. Lamiot and in 1987 filed an amended complaint alleging that the child had sustained brain damage and spinal cord injury as a result of defendants' negligent conduct. In addition to a res ipsa loquitur count of negligence, Delnor was specifically charged with dropping Brittany, allowing nonanatomical maneuvers to be performed on her, and allowing trauma to occur to her. Dr. Lamiot reached a pretrial settlement with plaintiffs, and the case against Delnor proceeded to trial.

Dr. John Lamiot, called as a witness by plaintiffs, testified that Brittany's birth had been routine and normal for a breech birth and that he had noticed no spasticity in the newborn. The doctor stated that he had done nothing and nothing had happened during delivery to cause the infant's injuries and that he did not know of anything which occurred after she was born to cause her to be injured.

Dr. Mary Lee Holland, the first pediatrician to examine Brittany, saw the infant about 12 hours after birth and found her to be essentially free from abnormalities. The few irregularities she did note, such as the bruised buttock and labial hematoma, as well as slightly decreased muscle tone in the left leg, were perceived to be as a result of, and secondary to, the breech birth. The witness pointed out that she had made a note at the time that no paralysis was observed in the infant.

Dr. Holland examined Brittany again on January 2 and noted that she had an irritable cry, which is considered an abnormal finding and indicates something is bothering the baby. Also, the infant held her head turned to the left side. In order to rule out a fracture of the clavicle or the spine, the doctor ordered a cervical spine X ray. On January 4 Dr. Holland noted a change in the infant's condition. She found an abnormal swelling of the occipital area of Brittany's head and that the baby's left arm, which had been normal on January 2, was limp with no tone or movement. Once again the baby had an irritable cry, and Dr. Holland's assessment was that a spinal cord injury was probable. She did not, however, have any knowledge of trauma to the baby other than the history of breech delivery.

Dr. Murphy, Brittany's regular pediatrician, did not examine the baby until January 3. He did not notice any occipital swelling at that time but did find the baby to be irritable. On January 4, after discovering some swelling between the baby's upper throat and spine and determining that there might be a fracture of the infant's cervical spine, Dr. Murphy had her transferred to Loyola University Hospital. The doctor testified that, as far as he knew, he had not injured Brittany when he examined her.

Nurse Schulz, who had assisted Dr. Lamiot at Brittany's delivery, testified that she had no knowledge of how the infant received any trauma to her head. The witness also indicated that if a child had sustained a head injury during or immediately after birth she would have noted it, but there was no such notation on Brittany's chart. Kathleen and Randall Barkei, the child's parents, also testified that they did not know how the trauma to Brittany had occurred. Randall Barkei had been present in the delivery room when Brittany was born and stated that nothing unusual happened then. Both parents testified that whenever they had the baby in their physical possession a member of the hospital nursing staff was present.

Dr. Gilbert Given, called as an expert medical witness by plaintiffs, testified that he was board-certified in pediatrics and on the staff of Children's Memorial Hospital in Chicago, Wyler's Children's Hospital, and La Rabida Children's Hospital, at the University of Chicago. He is also an associate professor of pediatrics at that university. Dr. Given testified that when one looks at all of the evidence in the case, the child's injury occurred after delivery. The occipital hematoma would have been recorded if it had been observed before January 4, 1978, but it was not. The absence of any earlier notation in the defendant hospital's records of the discovery of the hematoma at the base of the child's skull, together with the testimony of Dr. Lamiot and the delivery room nurse that the delivery had been generally uneventful, led Dr. Given to speculate that the trauma had occurred at some time after delivery. The witness noted that the hematoma was not observed until four days after the baby was born and, while it might take several hours for a hematoma to show itself, it would be very unusual and unlikely for three or four days to pass without it being noticed. On cross-examination, Dr. Given agreed that the symptoms of an injury like ...


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