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08/18/95 RAYMOND & LUCILLE WILLIAMS v. CHICAGO

August 18, 1995

RAYMOND & LUCILLE WILLIAMS, PLAINTIFFS-APPELLANTS,
v.
CHICAGO OSTEOPATHIC HEALTH SYSTEMS; CHICAGO OSTEOPATHIC HOSPITALS AND MEDICAL CENTERS; LOUIS PAPP, D.O.; CATHERINE MCDERMOTT, D.O.; ANGELO ALEXANDER, D.O.; AND DAVID RAMINSKI, D.O., DEFENDANTS-APPELLEES.



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

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice T. O'brien delivered the opinion of the court: Cousins, P.j. And McNULTY, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE T. O'BRIEN delivered the opinion of the court:

This case involves a stillbirth which occurred at the Chicago Osteopathic Hospital on November 7, 1985. The baby's parents, Raymond & Lucille Williams, brought a fraud action against certain doctors, defendants, Louis Papp, D.O., Angelo Alexander, D.O., Catherine McDermott, D.O., and David Raminski, D.O., as well as the hospital. The parents alleged that the doctors failed to tell them that their stillborn baby developed a heart rate at some point after the delivery. They claim that had they known of the baby's post-delivery condition they would have spent more time with the baby and would have insisted that the baby receive life-sustaining treatment.

The case proceeded to trial. At the close of plaintiffs' case-in-chief, the circuit court directed verdicts for defendants, Drs. Papp and Raminski, but denied the same motions made on behalf of the other defendants. At the close of all the evidence, the circuit court directedverdicts for the remaining defendants, Dr. Alexander, Dr. McDermott, and the hospital after the jury could not reach a verdict. *fn1

Plaintiffs appeal, contending that the evidence presented questions of fact which only the jury could properly resolve and therefore the court should not have granted defendants' motions for directed verdict. We affirm.

BACKGROUND

On the morning of November 7, 1985, when Lucille Williams was in the second trimester of her pregnancy, she began experiencing back pains. She went to Chicago Osteopathic Hospital where she was examined by Dr. Thomas Losure, a high-risk perinatalogist. After determining the fetus' gestational age to be between 22-24 weeks, he informed Lucille that she was in danger of going into premature labor. Dr. Losure also explained that if she delivered the baby, it would have no chance of survival (R.2915) and that no aggressive treatment of the premature newborn would be undertaken. (R.2899) He told both Lucille and her husband that they were welcome to get a second opinion if they so desired, but that they should do so prior to delivery of the fetus. (R.2901-03)

Dr. Losure further related to Lucille that an obstetric team would try to prevent a premature birth through the use of labor-inhibiting drugs. The obstetric team consisted of, among others, Dr. Alexander, the chief resident obstetrician, and Dr. Raminski, an intern. Lucille thereafter began receiving medication to prevent contractions.

Before leaving the hospital for the day, Dr. Losure consulted with Dr. Alexander. Dr. Losure did not expect any aggressive treatment to be performed on the infant if delivery occurred. (R.2911) However, Dr. Alexander was to use his "best judgment" whether to resuscitate the baby if it were born alive. (R.2930) Dr. Losure suggested that they not use a fetal heart monitor in this situation because Losure felt it would be "cruel" to allow Lucille to "hear" her baby's heart beat because "it starts to go down, that she has to listen to the baby die." (R.2921-22)

Unfortunately, Lucille began to have labor pains by 10:00 p.m. despite the labor-preventing medication. Although Dr. Losure had advised against it, Lucille was attached to a fetal heart monitor. Dr. Raminski, who was still on duty, last saw Lucille at 10:45 p.m., at which time the monitor registered a fetal heart rate. (R.448)

Later, Dr. Alexander observed that the fetus' heart rate had ceased to register on the monitor at approximately 11:10 p.m. (R.305) Moreover, he could not detect any fetal heart beat with his fetoscope. (R.306) A few minutes later, Lucille's water bag ruptured, and the baby presented in a breech position. Dr. Alexander delivered the baby, a girl, in the labor room at 11:19 p.m. At that time, Dr. Alexander told Lucille that the baby was stillborn. (R. 2425)

Dr. Alexander examined the baby after birth and assigned APGAR scores based on these examinations. *fn2 (R.348) At that time, the baby appeared blue and limp, and her skin was gelatinous, i.e., transparent. Dr. Alexander stated that if the baby had exhibited any signs of life, he would have called pediatrics. He discerned no such signs.

Dr. Raminski, who had not been present for the actual delivery, returned to the labor room and saw Dr. Alexander examining the baby. Dr. Alexander informed him that the delivery had been a stillbirth. Dr. Raminski saw that the baby, which fit in Dr. Alexander's hand, was purple, blue, and limp. (R.589) Dr. Raminski saw no signs of life in the baby.

Dr. Alexander asked Lucille if she wanted to see the baby, but she declined. He then gave the baby to nurse Suvaluk Kaeowichien. Consistent with hospital protocol, Kaeowichien took the baby to a utility room and cleaned the baby off. Although she tried to listen for a heartbeat with a stethoscope, Kaeowichien could not detect one. (R.3102)

Dr. Alexander instructed Dr. Raminski to comfort the parents. To that end, Dr. Raminski encouraged them to see the baby and was with them when Kaeowichien brought the baby back into the labor room at approximately 12:15 a.m. According to Lucille, the nurse held up the baby, the towel fell open, and the baby's leg "dropped". Her husband asked the nurse if the baby had moved or had taken a breath. Kaeowichien explained to the parents that it was a "reflex". (R. 466) Dr. Raminski, who also heard a "noise" or a "gasp" when Kaeowichien moved the towel away from the baby's body (R.2368), likewise stated that the baby's appearance had not changed since delivery, and he did not think the "gasp" was a sign of life. (R.466) Kaeowichien took the baby back to the utility room, without protest from the parents.

Dr. Alexander had further instructed Dr. Raminski to prepare a delivery note in which Dr. Raminski was to record the events which had occurred during the delivery. At 12:30 a.m., Dr. Raminski wrote the note, indicating that Lucille had delivered a nonviable girl who had weighed 555 grams. At trial, Dr. Alexander confirmed that Dr. Raminski's delivery note accurately reflected Dr. Alexander's observations and assessments of the baby following its delivery.

Dr. Alexander also asked Dr. Raminski to complete all of the paperwork concerning the delivery and to talk to the parents about the possibility of both an autopsy and the disposal of the baby's remains. Dr. Raminski could not recall at what time the parents signed the disposal consent form. However, Lucille testified she gave her consent at some point after she and her husband had seen the baby.

At some time after 1:00 a.m., nurse Brenda Starnes was in the utility room cleaning the baby. She also started to fill out some of the paperwork associated with stillbirths. As she was leaving the room, Starnes heard a "gasp." (R. 2054) Shortly thereafter, she heard a second "gasp." Using a stethoscope, Starnes examined the baby. She detected a faint heart beat (R.2056;2064), but the baby displayed no other signs of life and appeared "dead." (R.2110)

Confused by what she had observed, Starnes went to the residents' lounge and spoke with Dr. Alexander. She asked him what the APGAR scores were for the Williams' baby. He responded, "zero" and "zero." (R.2060) She related to Dr. Alexander what she had heard, and he told her that it was a "reflex" associated with stillbirths.

Nevertheless, Starnes thereafter paged pediatrics. Starnes also took the baby into a delivery room and placed the baby on a "life island," a medical unit which provides a baby with radiant heat.

At approximately 1:45 a.m., one of the labor nurses called defendant, Dr. Catherine McDermott, a pediatric resident, to the labor and delivery area of the hospital. The nurse told her that an extremely premature baby had been stillborn two hours earlier, with "zero" APGARS and that nurses had now detected a heart rate. (R.787) Dr. McDermott recalled that, on the previous day, the supervising neonatalogist, defendant Dr. Louis Papp, told her that a woman was in obstetrics threatening premature labor. Dr. McDermott had not been told anything else about the baby prior to receiving the nurse's phone call. The nurse asked her to come and see the baby.

When Dr. McDermott arrived, she saw the baby on a life island in the delivery room. The baby was deeply cyanotic, purple, mottled, and very bruised. During her examination, Dr. McDermott told the nurses that the baby was having "reflexes," which she explained waspossible even if it were "dead." (R. 804-05) Dr. McDermott also noticed that the baby had some irregular "cardiopulmonary functions". Although Dr. McDermott stated that the baby was "alive" in layman's terms, she found the baby to be "brain dead." (R.805)

Although Dr. McDermott concluded that nothing could be done for the baby, she saw that the nurses were upset. She decided, therefore, to telephone Dr. Louis Papp at his home at approximately 2:00 a.m. (R. 826) She informed Dr. Papp that the baby had "zero" APGAR scores, was cyanotic, and had no "reflex activity." (R.1148) Both Drs. McDermott and Papp agreed that they could offer no medical treatment to the baby. (R.828) Dr. McDermott related this to the nurses. (R. 829) At no time during the phone call did Dr. McDermott or Dr. Papp mention the parents. Dr. McDermott instructed the nurses to explain the "gasps" as reflexes. (R.2102) Dr. McDermott then returned to her rounds.

Meanwhile, Dr. Raminski overheard the nurses and Dr. McDermott talking about the Williams' baby. They were discussing whether the baby had a heartbeat. Dr. Raminski could not recall whether this discussion between the nurses and Dr. McDermott occurred before or after Lucille had signed the consent to dispose form. Dr. Raminski stepped into the residents' lounge and told Dr. Alexander what he had seen. (R.479) Dr. Alexander responded that the baby was stillborn and did not display any signs of life at the time of its birth. (R.486)

At 2:30 a.m., nurse Faye Brewer telephoned Georghetta Lucas, the head labor and delivery nurse, at her home. Brewer told her about the baby and informed her that the nurses were "upset". (R.1733-34) Lucas then called the labor and delivery unit and spoke with Kaeowichien. Approximately 15 minutes later, Lucas received another phone call from the adult intensive care coordinator who also told her that her nurses were very upset. Lucas then left for the hospital.

At approximately 3:00 a.m., nurse Helen Powell telephoned Ann Martin, the head nurse of the nursery, at Martin's home. Powell informed Martin about the baby. Both Martin and Lucas arrived at the hospital around 4:00 a.m. and went to see the baby, who appeared to be dead. (R. 1681; 1740)

At approximately 5:30 a.m., while Martin and Brewer were talking with the nurses, nurse Chan came in and told them to come and see the baby. Lucas observed that the baby was pink, and she heard a "cry." (R.1747) According to Martin, the baby appeared to be "improved." (R.1689)

After examining the baby, Martin spoke to Dr. McDermott on the phone. Martin asked her to examine the baby. Dr. McDermott replied that she had seen the baby earlier and that nothing medically could be done for it. (R.871; 1696) Martin told her that she was going to call Dr. Papp.

Dr. Papp received a second telephone call from the hospital between 5:30-6:00 a.m from nurse Martin. Based on Martin's description of the baby, Dr. Papp ordered the baby moved into the nursery and "intubated". Dr. Papp also told Martin that he was on his way to the hospital. Meanwhile, Dr. McDermott arrived in the nursery and began the intubation process which was completed by 6:50 a.m.

Lucas then went to get Dr. Alexander. She told him that the stillborn baby was now in the nursery. (R.1756) Both he and Lucas then went to tell the baby's mother. Lucille, who had not seen or heard anything about the baby since 12:30 a.m., received a visit from Dr. Alexander at approximately 6:00 a.m. He informed her that the baby's heart had started to beat some time after delivery and that the baby was in the neonatal intensive care ...


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