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09/08/95 PATRICIA HOLTON AND FRANK HOLTON v.

September 8, 1995

PATRICIA HOLTON AND FRANK HOLTON, PLAINTIFFS-APPELLEES,
v.
MEMORIAL HOSPITAL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 91-L-900. Honorable Jerome F. Lopinot, Judge, presiding.

Petition for Leave to Appeal Allowed December 6, 1995.

Presiding Justice Maag delivered the opinion of the court: Hopkins, J., and Chapman, J., concur.

The opinion of the court was delivered by: Maag

PRESIDING JUSTICE MAAG delivered the opinion of the court:

Defendant, Memorial Hospital, appeals from a $7,206,500 judgment in favor of plaintiff Patricia Holton on her medical malpractice claim, and from a $110,000 judgment in favor of plaintiff Frank Holton on his loss of consortium claim.

On August 7, 1991, plaintiffs Patricia and Frank Holton filed this action against defendants, Memorial Hospital, Radiological Associates, Ltd., and William G. Doubek, M.D., seeking recovery for personal injuries Patricia Holton allegedly sustained as a result of defendants' negligence and medical malpractice.

On April 19, 1993, plaintiffs entered into a settlement agreement with William Doubek and Radiological Associates, along with three other defendants named in a companion case and insured by the same insurer, for a sum of $2,950,000. On April 27, 1994, pursuant to a finding of good faith settlement, the trial court dismissed Doubek and Radiological Associates from this action, leaving Memorial Hospital as the sole remaining defendant. The case proceeded to trial.

On December 9, 1993, a jury rendered a verdict in favor of plaintiffs Patricia and Frank Holton and against defendant Memorial Hospital in the sum of $8,706,500 and $110,000, respectively. Defendant filed a posttrial motion alternatively seeking a judgment n.o.v., a new trial on all issues, a new trial on damages only, and remittitur of future medical expenses. Defendant also requested a reduction in the amount of recovery under section 2-1205 of the Civil Practice Law (735 ILCS 5/2-1205 (West 1994)) and a setoff under section 2(c) of the Joint Tortfeasor Contribution Act. (740 ILCS 100/1 et seq. (West 1994).) The court granted defendant's motion for remittitur and reduced the future medical expenses award by the sum of $1,500,000. The court denied the remainder of defendant's posttrial motion. On April 28, 1994, the trial court entered judgment in favor of plaintiff in the amount of $7,206,500 to reflect the remittitur and stayed execution of the judgment pending the outcome of an appeal. The defendant now appeals. Only portions of this decision are to be published.

FACTS

Plaintiff, Patricia Holton, began to suffer severe back pain in late November or early December of 1990. X rays and a bone scan revealed that she suffered a compression fracture to the T-3 or T-4 vertebrae in her thoracic spine. Her family physician, Dr. William Doubek, scheduled her for an MRI on January 4, 1991, the earliest nonemergency date available.

On the evening of December 26, 1990, Mrs. Holton presented herself to the Memorial Hospital emergency room in Belleville, Illinois, complaining of a tingling sensation in her left leg and numbness below the waist. The emergency room doctor, Dr. Mark Jergens, examined plaintiff and found she was running a low-grade fever and had an elevated white blood count, indicating an infection. According to Dr. Jergens, she had no loss of motor skills. Dr. Jergens ordered a CAT scan, and plaintiff's doctors admitted her to Memorial Hospital that evening.

Dr. Doubek examined Mrs. Holton early on the morning ofDecember 27, 1990, and found she had tingling, numbness, and weakness in her lower extremities. Dr. Doubek knew that her condition could be caused by a bone infection known as osteomyelitis or by a tumor in her spine. He ordered a neurological consultation by Drs. Murphy, Sprich, or Schultz and allowed plaintiff to use the bathroom with assistance.

Dr. Murphy, a neurosurgeon, examined plaintiff late in the afternoon on December 27. He noted that plaintiff complained of numbness in her abdomen and legs but could still move all of her extremities. The CAT scan ordered the previous day was also performed late on December 27. It confirmed the compression fracture. The radiologist reading the CAT scan opined, however, that plaintiff's pain was most likely the result of a cancerous tumor.

Plaintiff testified that during the day of December 27, she was having increasing difficulty moving her left leg. She testified that she told her nurses of this. The nurses' progress notes state only that Mrs. Holton did not experience any significant change in her condition during the day.

Sometime after the neurological consult, between 6 p.m. and 7 p.m. on December 27, plaintiff walked to the bathroom by herself. When she was ready to get up from the toilet, she found that she could not move her legs or stand up. She testified that her left leg was particularly numb. A nurse assistant answered her call for help, and along with a second nurse assistant, plaintiff returned to her bed. Neither nurse assistant reported this incident to a supervisor, a nurse, or a doctor.

Sometime between 1 a.m. and 5 a.m. on December 28, 1990, the nurse on duty determined that Mrs. Holton was having difficultly moving her left leg. The nurse testified she did not report this because she did not think it was a significant change in plaintiff's condition.

The nursing shift change occurred between 8 a.m. and 9 a.m. on December 28. After this change in nurses, plaintiff complained of numbness from the waist down and an inability to move her legs. She could move her right foot slightly. Mrs. Holton also lost bowel and bladder control at this time. The nurse called Dr. Doubek and the neurosurgeon on call. Dr. Doubek came immediately and confirmed plaintiff's complete motor loss below the waist.

The doctors ordered a series of tests to determine where the pressure on the spinal cord was located. Dr. Doubek testified that he was working on the misassumption that Mrs. Holton suffered a sudden onset of paralysis because he had not been informed of anything different by the hospital staff. The doctors continued treatment of plaintiff as if she suffered from cancer.

On January 17, 1991, after being paralyzed for three weeks, plaintiff's family transferred her to Barnes Hospital in St. Louis, Missouri, because she was not improving. At Barnes, Mrs. Holton was diagnosed with and treated for osteomyelitis.

On February 5, 1991, Mrs. Holton transferred to St. Elizabeth's Hospital for rehabilitation. She continued on antibiotics as treatment for the osteomyelitis. At St. Elizabeth's, she was noted as suffering from paraplegia with bladder and bowel involvement due to a spinal injury caused by upper thoracic vertebra osteomyelitis

ARGUMENT(S)

In the third issue raised, defendant contends that plaintiff's counsel, Mr. Cook, deprived Memorial Hospital of a fair trial by his comments and conduct during trial and in closing arguments. Defendant complains of 57 distinct comments which were purportedly prejudicial. We will not address each individual comment complained of by defendant. It is sufficient to say that some of Mr. Cook's comments were appropriate, truthful, and fair given the evidence in the record. Other statements, particularly his comparison of the nurses' conduct in this case to that of the Germans in World War II, were improper. After a careful review of the record, however, we find that with only a single exception defendant's trial counsel, Mr. Sandberg, failed to make any timely objection to the alleged errors. The failure to object in a timely fashion must be considered a waiver of defendant's objection. McElroy v. Force (1967), 38 Ill. 2d 528, 232 N.E.2d 708; Ellington v. Bilsel (1993), 255 Ill. App. 3d 233, 626 N.E.2d 386, 193 Ill. Dec. 353.

The one instance where Mr. Sandberg made a timely objection concerned Mr. Cook's comment that a witness was just following the "party line". Mr. Sandberg objected and the trial court sustained the objection. The trial court's prompt action in sustaining defendant's objection to plaintiff's comment cured any possible error. ( Cooper v. Chicago Transit Authority (1987), 153 Ill. App. 3d 511, 505 N.E.2d 1239, 106 Ill. Dec. 448.) Furthermore, Mr. Sandberg did not ask the court to instruct the jury to disregard Mr. Cook's comment. We can only assume that Mr. Sandberg would have done so if he considered the comment to be as prejudicial as defendant now claims.

We will not try cases on review for the attorneys. Each party has hired counsel to do so. Each counsel has his or her own trial tactics and strategy. It is neither for us nor for the trial court to step in and usurp counsel's strategy. We assume that if counsel chose not to object then he must have had a reason. All litigators should know that failure to object waives the objection. For this reason we will not allow counsel to employ his strategy and then cry foul when theoutcome is not to his liking. Lindroth v. Walgreen Co. (1949), 338 Ill. App. 364, 382-83, 87 N.E.2d 307, 315-16, aff'd (1950), 407 Ill. 121, 94 N.E.2d 847.

We believe that another incident which occurred deserves special attention. We will describe what took place in chronological order. During cross-examination by Mr. Cook the following question was asked and the following answer was given by Dr. Jergens:

"Q. You understand, do you not, sir, that you are a defendant in a companion case to this one? Are you aware of that?

A. I'm not aware of that."

The purpose for the question was to attempt to show bias on the part of the witness.

Dr. Jergens then left the stand. As the doctor was departing the courthouse, an attempt was made to serve the doctor, who resides in Washington State, with a summons and a complaint in the companion case Mr. Cook mentioned. When presented with the summons, Dr. Jergens refused to take it and refused to speak. The doctor then quickly left the courthouse and checked out of his hotel room.

At the same time the attempt at service was being made on Dr. Jergens, the court was conducting a hearing attended by trial counsel out of the jury's presence. Trial counsel were unaware of what was taking place with regard to the attempt to serve Dr. Jergens.

"The Court [addressing Mr. Sandberg]:

Okay. It's hard for me to fathom that you did not get permission of the doctor to accept summons even though that was later revoked. He had to know it that there was a collateral -- pardon me?

Mr. Sandberg: He had to know it? I have never talked with Dr. Jergens about that lawsuit and there is no evidence otherwise --

The Court: Let's not point fingers. That irritates me really.

Mr. Sandberg: I'm not pointing a finger at the ...


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