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02/20/96 PHYLLIS COLEY v. ST. BERNARD'S HOSPITAL

February 20, 1996

PHYLLIS COLEY, GUARDIAN OF THE PERSON AND ESTATE OF MILTON MCELROY, PLAINTIFF-APPELLANT,
v.
ST. BERNARD'S HOSPITAL, AN ILLINOIS CORPORATION, AND DR. HENRY TABE, DEFENDANTS, AND NILUARDO CAY, M.D. AND ILLINOIS MEDICUS, LTD., RESPONDENTS IN DISCOVERY-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH GILLIS, JUDGE PRESIDING.

As Modified on Denial of Rehearing June 10, 1996.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Wolfson, J., concur.

The opinion of the court was delivered by: Campbell

MODIFIED ON DENIAL OF REHEARING

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff Phyllis Coley, as guardian of the person and estate of Milton McElroy, appeals orders of the circuit court of Cook County denying plaintiff's motion to convert respondents-in-discovery Dr. Niluardo Cay and Illinois Medicus, Ltd. to defendants. The defendants, Saint Bernard's Hospital and Dr. Henry Tabe, are not parties to this appeal.

The record on appeal indicates the following facts. On December 6, 1991, plaintiff filed a medical malpractice action against the defendants. On March 23, 1992, plaintiff amended that complaint. The two-count complaint made similar allegations against each of the defendants. The complaint alleged that on December 8, 1989, Milton McElroy entered St. Bernard's Hospital and entrusted himself to the care of its agents and employees including, but not limited to, Dr. Tabe. The complaint charged the defendants with a number of allegedly negligent acts and omissions. The complaint claims that McElroy was externally and internally injured, suffered permanent damage to his central nervous system and will continue to suffer great and prolonged physical and mental pain and suffering, including damage to his brain and central nervous system. The complaint also states that McElroy has become liable for great sums of money for medical treatment and will continue to suffer loss of income and enjoyment of life. The complaint further states that on August 20, 1990, plaintiff was appointed guardian of McElroy due to his legal incapacity.

Pursuant to section 2-622 of the Illinois code of Civil Procedure (735 ILCS 5/2-622 (West 1992)), plaintiff's attorney attached an affidavit to the complaint stating that: he had reviewed the facts of the case with a medical doctor; that the doctor's written report, attached to the affidavit, indicates opinions "showing a reasonable cause for filing this meritorious cause of action[;]" and the attorney's opinion and that of the "qualified consulting health professional" were that St. Bernard's Hospital and its agents and employees conducted themselves in a fashion that fell below the standard of care applicable to hospitals and doctors.

The written report attached to the affidavit states that a physician board certified in emergency medicine examined McElroy's medical records from St. Bernard's Hospital "following his cardiac arrest on December 8, 1989" and concluded that there was a meritorious cause of action against St. Bernard's Hospital and Dr. Tabe based on the following:

"1. The deterioration of the arterial pH and the rise of serum carbon dioxide during the patient's first two hours in the emergency department were caused by inadequate ventilation and worsened the patient's prognosis.

2. The absence of detailed medical records suggests inadequate observation of a patient in critical care condition. Saint Bernard's Hospital fell below the standard of care expected of a hospital in the United States.

3. Their failure to adjust the dopamine drip in a patient with hypertensive vital signs can worsen the patient's outcome. This was caused by lack of observation by the personnel of Saint Bernard's Hospital and by lack of close follow up Dr. Tabe.

4. Despite having been notified a short time after the arrest, Dr. Tabe did not examine the patient for a prolonged period of time. This is negligent practice in a patient who has been resuscitated from a cardiac arrest.

5. Intercranial hypertension is a common problem following cardiac arrest and worsens neurologic outcome. In order to avoid sequelae, it is critical to hyperventilate these patients and control their blood pressure. There is a significant likelihood that Mr. McElroy's final ...


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