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June 21, 1995


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

Presiding Justice Greiman delivered the opinion of the court: Rizzi, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff Cynthia Hajian filed a medical malpractice action against Holy Family Hospital (defendant) and her attending nurse, Patricia Zeller, alleging that they failed to diagnose and prevent a stroke she suffered while hospitalized for injuries sustained in a car accident. The jury returned a verdict in favor of defendant upon which the court entered judgment.

On appeal, plaintiff claims the trial court erred by: (1) failing to grant her motions for a directed verdict on the issue of negligence and for judgment notwithstanding the verdict on the issues of negligence and causation in accordance with the principles set forth by this court in Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 493 N.E.2d 6, 97 Ill. Dec. 524, which establishes the "lost chance" doctrine; (2) failing to properly instruct the jury on the issue of proximate cause consistent with Northern Trust; (3) making improper evidentiary rulings; and (4) improperly admitting testimony regarding Zeller's nursing habits.

We affirm and file this opinion pursuant to Illinois Supreme Court Rule 23(a). 159 Ill. 2d R. 23(a).

On August 12, 1982, plaintiff, then 23 years old, was admitted to defendant's intensive care unit ("ICU") after sustaining injuries in a car accident including a fracture in her neck, a broken collar bone and the loss of five teeth. Undetected at admission was a tear or dissection of the inner lining of the left internal carotid artery, a major artery that supplies blood to the brain.

During the plaintiff's hospitalization, her mother, Martha Hajian Clavin (Mrs. Hajian), visited her every day for several hours. Mrs. Hajian testified that throughout this period plaintiff never lost her ability to speak in an intelligible or fluent manner nor was her level of consciousness altered, even before she received the plate for her missing teeth and even though she was often tired and had received two Demerol injections a day, a medication for severe pain.

On August 27 at approximately 4 p.m., Mrs. Hajian arrived at the hospital with her husband and four other relatives. On two occasions they observed plaintiff walk with a walker from her room down the hall and then back to her room, a distance of approximately two or three yards.

Nurse Zeller testified that when plaintiff returned to her room she was tired from her lack of sleep and exercise, and she received a drug to aid her digestion; however, these occurrences do not appear on plaintiff's chart. Sometime after 7 p.m. plaintiff received further injections of Demerol and Vistaril to relieve her pain.

Mrs. Hajian testified that although plaintiff appeared tired that evening, a condition which was not unusual, she was able to converse without difficulty.

At approximately 8 p.m. Mrs. Hajian observed plaintiff's condition change suddenly; she could not "talk right," her speech being garbled and unintelligible and her level of consciousness having changed so that she was "woozy." Plaintiff contends this condition, which lasted for at least six minutes, derived from a transient ischemic attack ("TIA") which is a warning sign of a stroke. Expert testimony established that a TIA is a sudden reduction in the amount of blood supplied to the brain tissues which can cause changes in a patient's behavior. TIA's vary in duration from one minute to one hour, and a delay in responding to a TIA could have the devastating consequence of the patient's eventually suffering a completed stroke.

At approximately 8:10 p.m. Mrs. Hajian proceeded to the nursing station located about eight feet away from plaintiff's room where she observed Nurse Zeller, the primary nurse on duty at that time, sitting alone. Mrs. Hajian testified to the following conversation with Nurse Zeller:

"MRS. HAJIAN: There is something wrong with my daughter. She can't talk. She is woozy. Will you come and check her.

NURSE ZELLER: Mrs. Hajian, she is tired. She had a busy day. She has walked for the first time.

MRS. HAJIAN: She has had worse than that here and she could always talk. *** She has been tired before. Please, check her.

NURSE ZELLER: Run along home, Mrs. Hajian. Everything will be all right."

Nurse Zeller had no recollection of Mrs. Hajian approaching her that night regarding the change in plaintiff's condition, and could not recall any difficulty with plaintiff's speech or plaintiff's ability to communicate properly or speak intelligibly during their previous conversations. However, Nurse Zeller stated that if she received such a "plea" from a family member she would have responded immediately as was her habit. She also stated that she knew that garbled speech could indicate a TIA and might be of short duration. But Nurse Zeller also stated that a report from a mother that she could not understand her daughter's speaking, aside from a TIA, could also be consistent with fatigue and the influence of pain medication. Nurse Zeller testified that based on all the entries throughout plaintiff's chart with particular regard to the events of August 27, she had no reason to believe in her best nursing judgment that plaintiff was experiencing a TIA around 8 p.m.

Mrs. Hajian returned to plaintiff's room and remained with her until visiting hours ended at 8:30, when she left the hospital for the evening.

After visiting hours, Nurse Zeller testified that she routinely administered "p.m. care" to the 10 to 12 patients for whom she was responsible (i.e., checking the patient's status as she helps the patient get to sleep), and this practice would last 60 to 90 minutes. During p.m. care, Nurse Zeller would observe the patients, touch their skin, look at their faces and assess whether they were unable to talk or in pain.

At 10 p.m. she gave plaintiff more medication for her digestion, encouraged her to take fluids and repositioned her in bed without complaints and at 11 p.m. wrote in plaintiff's chart "resting comfortably. [Complained of] being tired from increased activity. Awake, alert, painfree at present." Nurse Zeller also testified based on her independent ...

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