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June 13, 1995


Appeal from the Circuit Court of Cook County. Honorable Howard Miller, Judge Presiding.

Rehearing Denied July 20, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, P.j., and DiVITO, J., concur.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff, LaSalle National Trust, N.A. (LaSalle), appeals a jury verdict in favor of defendants in this medical negligence action. Plaintiff had alleged that defendants' negligence in the delivery and initial care of Sameer Parekh caused severe neurological damage and blindness. On appeal, plaintiff asserts numerous trial errors. *fn1 We affirm.

In 1982, hospitals in the Chicago area which administered neonatal and perinatal care had been accorded designations indicating the level of care they could provide. Level 1 hospitals provide only normal obstetrical care and normal deliveries of babies. Level 2 hospitals provide care for high-risk pregnancies and deliveries, as well as immediate care, up to 24 hours, in deliveries involving complications typically associated with premature babies. Level 3 hospitals, or tertiary care centers, provide a full range of services to all pregnant woman, including long-term care for premature infants. Levels 1 and 2 hospitals affiliate themselves with a tertiary care center to which they can transfer patients that they are not equipped to handle. In 1982, defendant Swedish Covenant was a Level 2 hospital affiliated with Rush Presbyterian-St. Luke's Hospital (Rush), to which it referred high-risk obstetrical and neonatal cases.

According to Swedish Covenant's "maternity service plan" (the Plan), required by State licensing laws to be filed with the Chicago Department of Public Health and with the Illinois Department of Public Health, admittees experiencing high-risk pregnancies, including extreme prematurity, were to be transferred to Rush. Transfers were initiated by the obstetrician in charge of the patient based upon considerations of obstetrical complications, neonatal considerations, and hospital capability. The Plan required transfer of babies born at less than 30 weeks gestation and a birth weight under 1,500 grams. The Plan also provided guidelines as to the treatment of newborns.

Norman Olsen, M.D., who was the chairman of the obstetrical department at Swedish Covenant in March 1982, believed that the Plan established guidelines, rather than hard and fast rules. In addition to the Plan, Swedish Covenant adhered to an unwritten policy called "compassionate care" which it applied in the case of extremely premature births, those under 26 weeks gestation. In those cases, because the chance of survival approached zero, the hospital did not transfer a newborn to Rush immediately. Rather, as compassionate care, the newborn was administered supplemental oxygen and observed to determine if the baby would survive at all. The administration of compassionate care was left to the judgment of the doctors involved.

In March 1982, defendant Dennis & Associates, M.D., S.C., was operated by defendant Vernon Dennis, M.D. Defendant Roger Thorpe, M.D., was an employee of Dennis & Associates. On December 7, 1981, Mrs. Tasvira Parekh visited the office of Dennis & Associates because she was pregnant. Dr. Thorpe took a history from Mrs. Parekh, concluded that she had conceived shortly after October 6, 1981, and estimated her due date as July 13, 1982. Dr. Dennis also examined Mrs. Parekh and concluded, consistent with Dr. Thorpe's determination, that she was nine weeks pregnant.

On March 25, between 9 and 10 p.m., during her 25th week of pregnancy (normal term is between 38 and 42 weeks), Mrs. Parekh began leaking amniotic fluid, indicating that she had suffered a premature rupture of the amniotic sac. She was admitted to Swedish Covenant, where Dr. Dennis was on staff. Dr. Olsen examined Mrs. Parekh and determined that she was not in active labor. Dr. Dennis was informed of Mrs. Parekh's status, and he ordered the standard treatment in such cases, which is bed rest and observation. Premature ruptures can result in premature labor and delivery. Because Mrs. Parekh's fetus was under 26 weeks in gestation, Dr. Dennis considered it previable, having little or no chance of surviving if born. Dr. Dennis' goal was to prolong Mrs. Parekh's pregnancy to viability, if possible. He told Mr. and Mrs. Parekh that if the baby was born at that time, he did not expect it to live. Dr. Dennis did not transport Mrs. Parekh to Rush pursuant to Swedish Covenant's Plan because he did not consider the fetus viable.

Dr. Dennis saw Mrs. Parekh on March 27. She had stabilized, although the rupture had not sealed. Because of her improved condition, Dr. Dennis had her transferred to a regular hospital room on the maternity floor.

On the night of March 29, Dr. Thorpe was on call for Dennis & Associates at Swedish Covenant. Nurse Ruth Ann Martin discovered that Mrs. Parekh had gone into labor. Nurse Martin informed Dr. Thorpe of Mrs. Parekh's labor, and he went to examine her. Dr. Thorpe knew that Mrs. Parekh was in the hospital with an extremely premature rupture. Based upon his examination, he confirmed that the gestational age of the fetus was 23 to 25 weeks. Dr. Thorpe consulted with Dr. Dennis, and they agreed that the fetus was previable, and, therefore, Dr. Thorpe did not have Mrs. Parekh transferred to Rush.

At 11:55 p.m., Dr. Thorpe ordered that an intravenous (IV) hydration solution be given to Mrs. Parekh in the hope that it would halt the labor. At around midnight on March 30, Dr. Thorpe ordered Nurse Martin to attach a fetal monitor to Mrs. Parekh, which shows the intervals of contractions and fetal heart rate. Dr. Thorpe examined the fetal monitor strips at various times. He did not record his readings on Mrs. Parekh's chart because he did not notice signs of fetal distress on the strips.

At approximately 1:30 a.m., Mrs. Parekh felt a hard contraction. She told her husband to get the doctor. Mr. Parekh got Nurse Martin, who arrived and saw that the baby was about to be born. She rushed to get Dr. Thorpe, while Nurse Kruse prepared the nursery for the baby. Following Dr. Thorpe's orders, Nurse Kruse did not request the presence of a pediatrician in the nursery. Dr. Thorpe had not requested a pediatrician because he did not expect the baby to survive.

When Dr. Thorpe arrived, he saw Sameer lying, not moving, between Mrs. Parekh's legs. The baby's birth was recorded at 1:45 a.m. Dr. Thorpe considered his primary responsibility to be to clear an airway for Sameer because he was cyanotic and depressed, i.e., in need of oxygen. As he touched Sameer, Sameer gasped, indicating a live birth. He suctioned Sameer's nose and mouth, and Sameer began breathing on his own. Because Sameer was breathing, Dr. Thorpe did not intubate him for artificial breathing. Dr. Thorpe cut Sameer's umbilical cord, dried him, wrapped him in towels, and gave him to a nurse to be taken to the nursery. Dr. Thorpe recorded Sameer's birth weight at 680 grams, normal for a baby of 25 weeks gestation. Dr. Thorpe performed an "Apgar" assessment on Sameer. Sameer's score indicated he was suffering from asphyxia. Dr. Thorpe issued no particular instructions as to care for Sameer, except that he was to be placed in a warm environment for observation to see if he responded positively.

Sameer was admitted to the nursery at 1:58 a.m., in poor condition, gasping for air and cyanotic, grayish-blue in color, indicating a lack of oxygen. He was placed immediately into an isolette, which is an enclosed bassinet that has both a warmer and an enriched-oxygen delivery system in it. Premature babies lose heat quickly, so the isolette helps stabilize temperature. Nurse Kruse, without any instructions from a doctor, but in accordance with hospital protocol, started 32% oxygen in the isolette. Room air contains 21% oxygen. Oxygen below 40% is not considered therapeutic, and a nurse cannot give therapeutic oxygen without a physician's order. Nurse Kruse monitored Sameer, taking his temperature, suctioning him, and checking his pulse, respiration and heartbeat. His pulse was strong, and he was breathing spontaneously, although his respirations were depressed at 24 per minute and he was grunting, attempting to draw more air into his lungs.

By 2 a.m., Sameer's condition had improved somewhat. His color was good (pinkish), his heart rate was normal at 140, and his respirations had increased to a near normal 40 per minute. However, he was hypothermic, his temperature hovering at 94 degrees, despite the fact that the crib temperature was 97 degrees. A normal newborn's temperature is around 99 degrees. The nurses observed Sameer every 15 minutes over the next 1 1/2 hours. During that time, his heart rate remained normal, but his pulse grew weaker. His breathing became labored. He retracted and grunted, attempting to draw more air into ...

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