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12/28/89 Margaret Hare, Personal v. Foster G. Mcgaw Hospital

December 28, 1989

JOHN HARE, DECEASED, PLAINTIFF-APPELLANT

v.

FOSTER G. MCGAW HOSPITAL ET AL., DEFENDANTS (ANDREW LABRADOR, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

MARGARET HARE, Personal Representative of the Estate of

549 N.E.2d 778, 192 Ill. App. 3d 1031, 140 Ill. Dec. 127 1989.IL.2039

Appeal from the Circuit Court of Cook County; the Hon. Louis J. Giliberto, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

This appeal arises from actions for survival and wrongful death brought by the plaintiff, Margaret Hare, mother of the decedent John Hare, against Dr. Andrew Labrador, an emergency room physician. The complaint alleged that the defendant's failure to discover the severity of the decedent's hepatitis and to hospitalize him was a cause of his death. In a jury trial, the trial court directed a verdict in favor of the defendant and against the plaintiff on the wrongful death count on the basis that the plaintiff failed to produce evidence showing that the alleged malpractice proximately caused the decedent's death. The plaintiff then voluntarily dismissed the survival count with prejudice and initiated this appeal. The plaintiff contends on appeal that the trial court erred in directing a verdict in favor of the defendant on the issue of proximate cause where evidence was produced to show that the defendant's negligent failure to hospitalize the decedent denied him a significant chance to survive his illness. This appeal involves issues of proximate cause and the emerging doctrine of "lost chance" or increased risk of harm.

On August 27, 1980, 22-year-old John Hare went to the emergency room at the Loyola University Medical Center (Loyola) and was diagnosed as having hepatitis B. He was told to rest and to follow up at the Hepatitis Clinic within one week. Hare decided to convalesce at his girlfriend's house in Calumet City, Illinois.

On September 9, 1980, Hare went to the emergency room at St. Margaret Hospital in Hammond, Indiana, complaining of abdominal cramping. He stated that he had been diagnosed as having hepatitis B and that he wanted an enzyme test. The triage nurse recorded that Hare was "very jaundiced," then directed him to the defendant, who took a medical history and examined Hare. The defendant reported that Hare was jaundiced and that his liver was enlarged and mildly tender but smooth and firm. Hare was alert and did not look weak. The defendant discussed Hare's condition with him and advised him to continue rest and to maintain a high-protein, high-carbohydrate, low-fat diet. He also advised him to follow up at Loyola. Hare was not given any tests.

Five days later, on September 14, 1980, Hare was brought to the emergency room at St. Margaret, given blood tests and immediately admitted to the hospital. He had developed fulminant hepatitis, a severe form of hepatitis characterized by mental confusion. Hare went into a deep coma and died on September 23, 1980, of hepatic encephalopathy, a swelling or edema of the brain which is an untreatable complication of fulminant hepatitis.

At trial, the plaintiff presented expert testimony by Dr. Jonathan Alexander, who testified that the defendant breached the duty of care by failing to order a prothrombin time test and by failing to communicate to Hare the immediacy of his need for specialized care. Alexander stated that although Hare did not have fulminant hepatitis when treated by the defendant on September 9, a PT test would have shown that the impairment of his liver function was severe enough to require hospitalization. According to Dr. Alexander, there is no cure for hepatitis. However, it is necessary to hospitalize patients with severe hepatitis in order to give them supportive care, such as bed rest and appropriate diet to keep them in the best condition possible to fight the disease. Hospitalization also enables the early detection and treatment of certain complications which arise from hepatitis. Dr. Alexander then testified as follows:

"Certainly the reason why doctors admit patients to the hospital who have severe hepatitis is because this general [supportive] care that I have just been talking about certainly is a benefit to the patient, and does increase the patient's chance of surviving [his] illness.

The consequences of failing to provide the standard of care for John Hare on 9/9, the failure to admit him on 9/9 was that, in my opinion, he was essentially denied any reasonable opportunity to benefit from medical intervention. He was denied a reasonable opportunity to benefit from whatever the world of medicine could give him to help stabilize him and make him the [ sic ] as strong as possible in his battle against the liver disease that he had."

Dr. Alexander further testified that the defendant's failure to hospitalize Hare "doomed him to death" and "denied him a significant chance to survive his illness." He stated, however, that there is no known method of detecting hepatic encephalopathy, no cure for the disease, and no way of preventing it other than general supportive care. Although most hepatitis patients do not need ...


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