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March 11, 1994



Gordon, Murray, McNULTY

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:


Plaintiff, Ann Hulman, sought to recover damages for bodily injury sustained as a result of the alleged negligence of a hospital employee. Following a jury trial in the circuit court of Cook County, a verdict was returned in favor of defendant, Evanston Hospital. Plaintiff brings this appeal from the judgment entered upon that verdict.


On March 26, 1984, plaintiff, Ann Hulman, was brought to Glenbrook Hospital by paramedics. There, she was diagnosed as having suffered upper gastrointestinal bleeding leading to a drop in blood pressure and a stroke on the right side of her brain. Plaintiff also had a fractured hip as a result of a fall at the time of the stroke. While at Glenbrook Hospital, her condition improved and her treating physician, Dr. Justina Tanhehco, determined plaintiff was a candidate for an inpatient rehabilitation program in defendant, Evanston Hospital. Plaintiff was transferred to Evanston Hospital on April 17, 1984, where her condition continued to improve.

On the morning of May 4, a nurse assisted plaintiff from her hospital bed to the toilet. Plaintiff requested privacy. The nurse left the room while plaintiff was sitting on the toilet. Plaintiff testified that she called for a nurse, but there was no response, so after sitting there for what "seemed like hours" she attempted to lift herself from the toilet. As she did so, she fell, fracturing the femur bone of her left leg. The leg was casted later that day. In the weeks that followed, plaintiff suffered a series of seizures, a heart attack, and gangrene. Eventually, both legs were amputated.

On June 7, 1985, plaintiff filed suit in the circuit court of Cook County for damages against defendant Evanston Hospital. The amended complaint alleges that the nurse, acting within the scope of her employment for defendant, was negligent in abandoning plaintiff after assisting her onto the toilet and that this negligence was a direct and proximate cause of plaintiff's fall and injuries.

Prior to trial, defendant brought a motion in limine to exclude testimony regarding defendant's alleged lack of sufficient effort to identify and locate the nurse who left plaintiff unattended. The trial Judge granted defendant's motion. He ruled, however, that plaintiff's counsel could comment that defendant had not disclosed the attending nurse's identity and defense counsel could comment that the hospital did not know the identity of the nurse.

At trial, Dr. Justina Tanhehco, M.D., testified for plaintiff. Dr. Tanhehco, board certified in physical medicine and rehabilitation, was plaintiff's attending physician while she was in Evanston Hospital after her stroke. She stated that because of the hip fracture sustained during the stroke she had not authorized plaintiff to stand alone. She also said that some patients who have had a stroke damaging the right side of the brain are somewhat impulsive and may have perceptual difficulties. Dr. Tanhehco had devised a rehabilitation plan for plaintiff which initially set a goal of moderate assistance in transferring from a bed to a chair, but was revised as plaintiff improved, so that the new goal was to achieve transfers (movement between bed and chair or wheelchair and between wheelchair and toilet) with minimal (10-25%) assistance. Dr. Tanhehco stated that, as of May 3, 1984, the plan had been to discharge plaintiff from the hospital in approximately one week.

According to Dr. Tanhehco, before moving a stroke patient from her bed to the toilet, a nurse is required to do an on the spot assessment as to whether such a move (a transfer) should be made. Such an assessment would include consideration of how the patient had previously transferred with that nurse and with other nurses and a judgment as to the patient's ability to stand, whether she was leaning when sitting, and what her mental orientation was at that particular time. Dr. Tanhehco testified that plaintiff had first used the toilet on April 19, 1984, and had improved at that skill thereafter.

Dr. Tanhehco stated that when she saw plaintiff at 8 a.m. on May 4, 1984, her orientation was good, but that a stroke patient's orientation can change. She testified that, on that same morning, she happened to be at the nurses' station near plaintiff's room at the time of the fall shortly before 10 a.m. She went into the room after hearing a noise and found plaintiff on the floor and in pain. She examined plaintiff, noticed increased tenderness in the left hip area, and ordered xrays which showed a new fracture of the left femur. She stated that she did not know who had left plaintiff alone, nor did she know for how long plaintiff had been left there alone.

On cross-examination, Dr. Tanhehco said that when she saw plaintiff immediately after the fall at approximately 10 a.m., plaintiff's orientation appeared to be the same as it had been at 8 a.m. She saw no reason to believe that plaintiff's orientation would have changed in that two hour interval. Dr. Tanhehco further stated that although plaintiff claimed to have pushed the call button, she had not noticed any activated call light at the nurses' station.

Over plaintiff's objection, Dr. Tanhehco testified on cross-examination that to a reasonable degree of medical certainty based on her observations two hours before the fall and immediately after the fall, it was "a matter of good nursing judgment" to leave plaintiff alone on the toilet in that condition.

On redirect examination, Dr. Tanhehco was again asked if it was good nursing practice to leave the patient alone on the toilet. She replied, "That's general practice for a short time, yes." She admitted she did not know how long plaintiff had been left alone. Plaintiff's counsel then asked, "Because you don't know that, it is a fact isn't it that it may well not have been good nursing practice in this case on that day to have situated and tended to Mrs. Hulman as was done; isn't that true?" Dr. Tanhehco replied "Yes."

Plaintiff's two daughters, Cecelia Currie and Jennifer Manz also testified for plaintiff. Prior to Ms. Currie's testimony, defendant moved to bar admission of a pamphlet entitled "Stroke: Why Do They Behave That Way?" and to bar testimony as to its content. The pamphlet, distributed by defendant to plaintiff's daughters and to families of other stroke victims, dealt with general characteristics of stroke victims. Plaintiff sought to introduce the pamphlet to show the hospital's knowledge that patients like plaintiff tend to act impulsively and, therefore, need to be closely watched. The trial Judge held the pamphlet to be inadmissible, finding that, because it discussed some characteristics not applicable to the plaintiff, it was not relevant to show the hospital's knowledge of plaintiff's condition and could be confusing to the jury. The Judge did rule, however, that plaintiff's family could orally testify about information the hospital gave them as to plaintiff's care and condition.

On direct examination, Ms. Currie testified that hospital personnel had instructed her about home care for her mother. They told her never to leave her mother in an unstable position because she would overestimate her abilities and have trouble with spatial relationships. Hospital nurses had told her a family member should always be present to help with transfers to the bathroom when plaintiff came home. Ms. Currie also testified that the hospital provided her and her sister with a pamphlet and showed a film on characteristics of stroke victims, both indicating that right-sided stroke victims can overestimate abilities and should not be left alone in an unstable position.

On cross-examination, Ms. Currie stated that a hospital social worker had also given the pamphlet and shown the film to families of other stroke victims in the hospital. She testified that, prior to the fall, plaintiff had returned home on a short pass to attend a family party. At that time, hospital personnel had instructed Ms. Currie to lift plaintiff during transfers rather than to attempt the type of transfer used at the hospital, which involved plaintiff pivoting on her unimpaired leg.

Jennifer Manz, another daughter of plaintiff, testified that nurses from the rehabilitation department had taught her how to transfer her mother and that during such instruction her mother was never left alone in a sitting position. She testified that the nurses instructed her never to leave her mother in a chair, an admonition which she said was reiterated in the pamphlet and film shown to her and her sister and families of other stroke victims. Ms. Manz stated that on May 4, when she visited her mother at the hospital, her mother was "in her bed twisted up like a pretzel." She went to the nurse's station to ask what ...

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