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10/06/95 SARAH ANN FREEMAN v. DENNIS J. PETROFF

October 6, 1995

SARAH ANN FREEMAN, BY AND THROUGH HER FATHER AND NEXT FRIEND, SCOTT FREEMAN, SCOTT FREEMAN, AND LISA FREEMAN, PLAINTIFFS-APPELLANTS,
v.
DENNIS J. PETROFF, M.D., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 90-L-362. Honorable P. J. O'Neill, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Hopkins and Kuehn *fn1, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiffs, Sarah Ann Freeman (hereinafter Sarah Ann), a minor, by and through her father and next friend, Scott Freeman, and Scott Freeman and Lisa Freeman, Sarah Ann's parents, appeal from a judgment of the circuit court of Madison County entered on a jury verdict in favor of defendant, Dr. Dennis J. Petroff. On appeal, plaintiffs' principal contentions are that (1) the trial court erred in giving the second paragraph of Illinois Pattern Instructions, Civil, No. 12.04 (3d ed. 1989) (hereinafter IPI Civil 3d No. 12.04) and (2) the erroneous instructions were seriously prejudicial to plaintiffs. We reverse and remand for a new trial. A detailed recitation of all facts is not necessary since our resolution of this appeal focuses exclusively on the sole-proximate-cause jury instruction issue raised by plaintiffs. The relevant facts include the following.

I

Plaintiff Lisa Freeman's first obstetrical visit with defendant occurred on October 27, 1987. Lisa remained under defendant's care until the premature birth of her daughter, Sarah Ann, on March 23, 1988. No problems were noted during Lisa's obstetrical visits, and her pregnancy seemed to be proceeding normally as of February 27, 1988, the date of her last scheduled visit.

During the first week of March, Lisa began experiencing excess swelling of her ankles, hands, and face in the morning. She reported these symptoms to defendant's office personnel. Defendant's office told Lisa to pick up a salt-free or low-sodium diet at defendant's office. However, Lisa's condition worsened, and she began to experience nausea, vomiting, and headaches. She reported these symptoms to defendant, who recommended an antacid and Tylenol. No one from defendant's office advised Lisa to come into the office to be examined.

Because her symptoms had not improved, Lisa went to defendant's office on Monday, March 21, 1988. Lisa was unable to provide a urine sample. It is disputed whether defendant or his staff weighed Lisa and took her blood pressure during this visit. Lisa returned to defendant's office the following day, March 22, 1988. Lisa was weighed, her blood pressure was taken, and a urine sample was provided. Lisa's blood pressure was 160/110, her urine protein level was 4, and she had gained 17 pounds. Lisa was admitted to Anderson Hospital in Maryville that same afternoon. She remained at Anderson Hospital until Wednesday afternoon, when she was transferred by ambulance to the high-risk pregnancy center at Jewish Hospital in St. Louis, Missouri.

At Jewish Hospital, Dr. Michael Nelson diagnosed Lisa as having severe preeclampsia, requiring delivery of the baby. Immediately following delivery, doctors from Children's Hospital stabilized Sarah Ann and transferred her to Children's Hospital. At birth, Sarah Ann had a gestational age of 28 weeks and was approximately nine weeks premature. Sarah Ann remained at Children's Hospital from birth to June 20, 1988. During her hospitalization, Sarah Ann underwent four ultrasound tests of the head. The first three ultrasounds were normal. However, the last ultrasound taken on June 16, 1988, showed multiple cystic areas in the periventricular regions bilaterally, which is classic for periventricular leukomalacia.

Upon discharge from Children's Hospital, Sarah Ann was diagnosed with a number of medical problems common to premature infants. Sarah Ann's most significant diagnosis is periventricular leukomalacia, which placed her at risk for developing significant motor deficits, including spastic diplegia. Later, Sarah Ann was diagnosedas having a fairly severe type of cerebral palsy called spastic cerebral palsy. This condition has severely compromised Sarah Ann's ability to use her muscles. Sarah Ann has some use of her right upper extremity; however, it is not normal. Her left upper extremity is almost useless, and both her legs are kept extended so she cannot sit properly and has no postural balance. Sarah Ann must be propped up when in a sitting position so that she does not fall backwards or to the side. With surgery, Sarah Ann may be able to do some walking, but she will never be able to walk normally. Sarah Ann's disabilities are permanent.

At trial, plaintiffs and defendant called a number of expert witnesses. Defendant testified on his own behalf. The various expert witnesses, excluding Dr. Michael Maurer, testified concerning the signs and symptoms of preeclampsia, the care rendered by defendant, Sarah Ann's condition at birth, her subsequent problems, and her future prognosis. None of the witnesses for either plaintiffs or defendant testified concerning a standard of care applicable to Children's Hospital or that the hospital deviated from that standard of care while Sarah Ann was under Children's Hospital's care.

Dr. Maurer, testifying on behalf of defendant as a neonatalogist, opined that the periventricular leukomalacia from which Sarah Ann suffered was the result of inadequate blood flow to the brain. He stated that there were three different occasions during which Sarah Ann experienced low blood pressure while under the care of the medical staff at Children's Hospital. According to Dr. Maurer, these events set the stage for periventricular leukomalacia to occur. On cross-examination, Dr. Maurer admitted that he could not say that any of these episodes of low blood pressure, individually, caused periventricular leukomalacia. Rather, he opined that one or a combination of them caused Sarah Ann's injury. Dr. Maurer did not testify concerning an applicable standard of care that Children's Hospital owed to Sarah Ann, nor did he testify about how the hospital or its medical staff deviated from the applicable standard in their treatment of Sarah Ann.

At the close of all the evidence, the trial court tendered to the jury defendant's instruction 2, which was based on the long form of IPI Civil 3d No. 12.04. The jury returned a verdict in favor of defendant. Plaintiffs' posttrial motion for a new trial was denied. Plaintiffs appeal.

II

Plaintiffs contend that the trial court erred when it tendered defendant's jury instruction number 2, which consisted of bothparagraphs of IPI Civil 3d No. 12.04. Plaintiffs assert that IPI Civil 3d No. 12.04 was given erroneously because the notes on the use of the second paragraph of IPI Civil 3d No. 12.04 state that it is to be given only where there is evidence tending to show that the sole proximate cause of Sarah Ann's injury was the conduct of a third person who was not a party to the suit. Plaintiffs emphasize that there was no evidence adduced at trial tending to show that the sole proximate cause of Sarah Ann's injury was the negligent conduct of someone other than defendant. Thus, the trial court was precluded from giving the second paragraph of IPI Civil 3d No. 12.04.

IPI Civil 3d No. 12.04, which relates to concurrent negligence as the proximate cause of injury, reads as follows:

"12.04 Concurrent Negligence Other Than Defendant's

More than one person may be to blame for causing an injury. If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

[However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]"

The notes on the use of IPI Civil 3d No. 12.04 state:

"This instruction should be used only where negligence of a person who is not a party to the suit may have concurred or contributed to cause the occurrence. This instruction may not be used where the third person was acting as the agent of the defendant or the plaintiff. Where two or more defendants are sued and one or more may be liable and others not liable, use IPI 41.03.

The second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of a third person." (Emphasis added.) IPI Civil 3d No. 12.04, Notes on Use, at 12-9.

In analyzing IPI Civil 3d No. 12.04, the instructions are to be read as a series and considered in their entirety. ( Friedman v. Park District of Highland Park (1986), 151 Ill. App. 3d 374, 389, 502 N.E.2d 826, 837, 104 Ill. Dec. 329.) The language of the first paragraph of the instruction instructs the jury to consider not only whether the defendant's conduct was negligent but also whether his negligent conduct was the proximate cause of the plaintiff's injury. ( Miyatovich v. Chicago Transit Authority (1969), 112 Ill. App. 2d 437, 443, 251 N.E.2d 345, 348.) Only when the jury determines that the defendant's negligent conduct was a proximate cause of the plaintiff's injury may it disregard the defense that a third party's negligence was the sole proximate cause of the occurrence.

"[The second paragraph was added] to correct any negative implications arising from the first paragraph of the instruction and to insure that the jury is properly instructed in cases where the negligence of some third person *** is presented as a defense *** [and] to emphasize that the jury must find for the defendant where they find that the conduct of that third person was the sole proximate cause of the injury." (Emphasis added.) Miyatovich, 112 Ill. App. 2d at 443-44, 251 N.E.2d at 348.

As indicated by the instruction, where the conduct of a nonparty is presented as a defense, the third person's conduct must be both negligent and the proximate cause of the plaintiff's injury in order to ...


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