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02/18/94 BANK ILLINOIS v. ALICE THWEATT

February 18, 1994

BANK OF ILLINOIS, AS GUARDIAN OF THE ESTATE OF NICHOLAS KARR, A MINOR, PLAINTIFF-APPELLANT,
v.
ALICE THWEATT, EXECUTOR OF THE ESTATE OF BRADLEY D. ADAMS, M.D., DECEASED, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Champaign County. No. 89L351. Honorable John G. Townsend, Judge Presiding.

Petition for Rehearing Denied April 5, 1994. As Corrected March 7, 1994. Second Correction March 18, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

On March 23, 1989, Deanne and Stephen Karr, as parents and next friends of Nicholas Karr, brought a medical malpractice action against Dr. Bradley Adams, seeking money damages for Nicholas' injuries. Dr. Adams died on May 24, 1989, and Alice Thweatt, executor of his estate, was substituted as defendant. Bank of Illinois was also substituted as plaintiff when it was appointed guardian of Nicholas' estate. On February 20, 1993, the jury returned a verdict in favor of defendant, and the trial court subsequently entered a judgment on the jury's verdict. The court thereafter denied plaintiff's post-trial motion for a new trial, and plaintiff appeals. We affirm.

This suit arises out of medical care provided by Dr. Adams to Deanne in 1983 when she was pregnant with twin boys, Nicholas and Joshua Karr. Deanne learned she was pregnant in December 1982, and upon the recommendation of friends, contacted Dr. Adams at Christie Clinic, Champaign, Illinois, to be her obstetrician-gynecologist. She was first examined by Dr. Adams on December 8, 1982, and she thereafter began regular monthly prenatal appointments with him. On March 18, 1982, Deanne began running a temperature and vomiting. She was admitted to Mercy Hospital on March 23, 1983, and was diagnosed with a kidney infection. It was also determined she was anemic. She remained at the hospital for five days, during which time a sonogram was performed which revealed she was carrying twins.

On the evening of April 22, 1983, Deanne engaged in sexual intercourse with her husband, whereupon she started bleeding. Stephen called the hospital and was instructed to call Dr. Adams He called Dr. Adams service, and Dr. Adams returned the call shortly thereafter. Deanne informed Dr. Adams that she had previously engaged in sexual intercourse and was bleeding. Deanne testified she described the bleeding as being "heavier than the heaviest day of [her] period." She also testified Dr. Adams inquired whether she was having contractions, and she responded she did not know what they felt like, but that she was experiencing a rolling sensation beginning below her navel and moving up below her breasts. Dr. Adams asked if there was any kind of regularity to the "rolling sensation." She indicated that they had just begun, and she was not paying any attention because she was worried about the bleeding. Dr. Adams informed her that bleeding occurs many times after sexual intercourse and that the "wavelike" sensations were Braxton-Hicks contractions, which were nothing to worry about. Deanne testified he instructed her to go back to bed. During the course of the night, the bleeding abated and eventually stopped between 6 and 7 a.m. the next morning.

Deanne phoned Dr. Adams the next day and informed him that the bleeding had stopped. She also told him that the "wave-like" sensations had continued, but they were not in any set pattern. She stated she was assured that they were nothing to worry about. She indicated that her next scheduled appointment was April 28, 1983, and she stated that he told her she should be sure and keep the appointment. She asked if he should see her earlier, and she testified that he said it would not be necessary.

At her appointment on April 28, 1983, Dr. Adams examined her and determined her cervix was three centimeters dilated and 80% to 90% effaced. She was thereafter admitted to Mercy Hospital. Dr. Adams initially ordered bed rest, diet as tolerated and prenatal vitamins. At approximately 2:45 p.m., an IV was started containing ritodrine, a tocolytic medication given to arrest preterm labor contractions. The next day Deanne was transferred to St. Francis Hospital in Peoria, Illinois, because Champaign did not have a neonatologist. Upon arriving at St. Francis, an additional drug was administered, betamethasone, a steroid which is given to promote lung maturity in fetuses. For a period of time the ritodrine appeared to arrest the contractions. However, the contractions later began again and an emergency Cesarean section was performed on April 29, 1993. Due to complications arising from his preterm delivery, Joshua died a week later. Nicholas weighed 765 grams at birth and, during the course of hospitalization, was diagnosed with various medical conditions. To date, he suffers serious permanent health problems associated with his preterm delivery. The twins were delivered at 26 weeks gestational age or approximately 14 weeks early.

On March 23, 1989, Deanne and Stephen Karr, as parents of Nicholas Karr, and as special administrator for the estate of Joshua Karr, filed a three-count complaint against Dr. Adams. Count I was a negligence action against defendant, alleging that in December 1982 Deanne entered into the care of Dr. Adams for obstetrical care for her pregnancy, and remained in his care until the delivery of her twin boys, Nicholas and Joshua. In rendering obstetrical and gynecological care, the complaint alleged defendant committed several negligent acts or omissions, including the failure to (1) examine Deanne immediately after he was informed of vaginal bleeding and spasms on April 22, 1983; (2) diagnose Deanne's premature labor; (3) effectively treat Deanne's premature labor; (4) monitor Deanne's physical condition so as to reduce the possibility of premature labor and birth; and (5) take effective and standard precautions against premature birth.

The complaint was later amended to include the following additional allegations of negligence: the failure to (1) conduct a cervical and a fetal heart monitor examination after receiving Deanne's complaint of bleeding no later than April 23, 1983, which examination would in all likelihood have disclosed premature labor, and upon such disclosure should have immediately instituted tocolysis; (2) immediately institute tocolysis and arrange for a transfer to a tertiary care unit after ascertaining Deanne was in labor; and (3) timely institute tocolysis. As a result of these acts, the complaint alleged Nicholas was prematurely delivered, resulting in multiple birth defects.

Count II was a wrongful death action brought on behalf of Joshua and count III was an action for family expenses. Upon motion, counts II and III were severed, and the trial proceeded solely on count I.

As stated, the jury found for defendant and against plaintiff and the court entered judgment on the verdict. Plaintiff filed a motion for new trial alleging various trial errors, which the court denied. The court, however, made a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), stating that there was no just reason to delay enforcement or appeal of the order. This appeal followed.

Paragraph 5 of count I of the original complaint contained the allegations of damages and alleged:

"5. As a direct and proximate result of one or more of the foregoing negligent acts or omissions, Nicholas Karr was prematurely delivered in an undeveloped and vulnerable state resulting in multiple severe birth defects and disabilities which condition required protracted neonatal care and as a result of which he will be severely and permanently disabled and has incurred and will require for his entire life extensive medical and custodial care." (Emphasis added.)

On December 23, 1991, plaintiff filed a motion to amend its complaint, including paragraph 5 of count I. The amendment was as follows:

"5. That as a direct and proximate result of one or more or a combination of the foregoing negligent acts or omissions, Nicholas Karr was born prematurely and as a result of the premature birth did suffer multiple injuries and disabilities, as a result of which he has suffered great pain and anguish, both in mind and in body, and will so suffer permanently in the future, and was rendered permanently disabled, and has incurred and will incur in the future substantial sums for medical care in attempting to alleviate his injuries and to preserve his life, and is so disabled and impaired that he is permanently unemployable, is substantially impaired in his ability to enjoy life[,] and will require special life care expenses for special life care needs and therapy for his life, all to his damages."

The motion was allowed, and defendant answered plaintiff's amended paragraph 5 of count I.

On February 18, 1993, during the trial, plaintiff moved to again amend paragraph 5 of the complaint by inserting the words, "or alternatively with more severe birth defects and disabilities" (emphasis added), after the phrase "severe birth defects and disabilities" in the original complaint, not the amended complaint.

Plaintiff failed to acknowledge in its motion, as well as in its argument to the trial court to allow its motion and its appellate brief, that there was a prior amendment to paragraph 5 which was granted. Nevertheless, plaintiff's motion was denied because the trial court concluded there was no evidence presented to support the phrase "with more severe birth defects and disabilities." Plaintiff appeals, arguing, inter alia, that it is ...


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