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06/27/96 HILDA AGUILERA v. MT. SINAI HOSPITAL

June 27, 1996

HILDA AGUILERA, INDIVIDUALLY AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF SALVADOR AGUILERA, DECEASED, AND AS MOTHER AND NEXT FRIEND OF LETICIA AGUILERA AND SALVADOR AGUILERA, JR., MINORS, PLAINTIFF-APPELLANT,
v.
MT. SINAI HOSPITAL MEDICAL CENTER, DR. KAREN CERVENKA, AND DR. NORMAN KOHN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 89 L 4026. Honorable Michael J. Kelly, Judge Presiding.

Released for Publication August 13, 1996.

The Honorable Justice Cahill delivered the opinion of the court: Theis and S.m. O'brien, JJ., concur.

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

We review an action for survival and wrongful death based upon medical malpractice. The jury found for the plaintiff and awarded substantial damages. The trial court entered judgment notwithstanding the verdict, finding "that no reasonable fact finder could conclude that the death of the *** decedent was proximately caused by the failure *** to conduct a CT scan *** in a more timely fashion." Plaintiff appealed. We affirm.

Plaintiff contends on appeal that it was error to enter a judgment notwithstanding the verdict when expert medical testimony was offered to show that a delay in administering a CT scan deprived the decedent of a significant chance to survive. Plaintiff contends that the testimony meets the standard in Illinois for establishing probable cause in medical malpractice actions.

A judgment notwithstanding the verdict should be entered only when all the evidence, viewed in an aspect most favorable to the opponent of the motion, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967). A motion for a judgment notwithstanding the verdict presents a question of law and will be granted only if there is a total failure or lack of evidence to prove an essential element of the plaintiff's case. Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665 (1942).

The record reveals that in the early morning hours of April 19, 1987, Salvador Aguilera was logged into the emergency room of Mt. Sinai hospital in Chicago complaining of headache and numbness on the left side of his body. His brother, who drove him to the hospital, said they arrived at 2 a.m. Hospital records indicate an arrival at 3 or 3:15 a.m. Whenever the hour, there is disagreement among the expert witnesses about the care and treatment Aguilera received over the next several hours in the emergency room. Plaintiff expert medical witnesses testified that the treatment deviated from the standard of care. Defense expert medical witnesses testified that it did not. Whether there is a deviation from the standard of care and whether the deviation was a proximate cause are normally questions for the jury. Borowski v. Von Solbrig, 60 Ill. 2d 418, 424, 328 N.E.2d 301 (1975).

Aguilera was formally admitted to the hospital, taken from the emergency room, and assigned to a room at approximately 7 a.m. At about 8:20 a.m. he began to suffer seizures. At about 9:30 a.m. he was given a CT scan which revealed a massive intracerebral hemorrhage measuring 4 by 6 centimeters. All experts who testified agreed that a hemorrhage of this size is fatal. Aguilera lapsed into a coma that day and died of cardiac arrest three days later. The death certificate recorded that Aguilera died from cardiopulmonary arrest secondary to a cerebral hemorrhage.

Both plaintiff expert medical witnesses testified that the failure of the emergency room physician to order an earlier CT scan while Aguilera was undergoing treatment and observation in the emergency room was a deviation from the standard of care. Dr. Glenn Hamilton, a board-certified emergency medicine physician testified that, given Aguilera's presenting signs and symptoms, an immediate CT scan should have been performed. This would have permitted the immediate medical and possible surgical intervention that, in Dr. Hamilton's opinion, would have saved Aguilera's life. The following colloquy then occurred between plaintiff's attorney and Dr. Hamilton:

"Q: In your opinion, Doctor, again to a reasonable degree of medical certainty, had that delay been avoided, would Mr. Aguilera survive?

A: My opinion is that he would.

In my mind at that point his chance of survival, if appropriately diagnosed, is ...


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