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09/05/96 SHERI LYNN BANKS v. RAMON CLIMACO

September 5, 1996

SHERI LYNN BANKS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JEFFREY LYNN BANKS, FOR THE BENEFIT OF SHERI LYNN BANKS AND BROOKE SHELBY BANKS, PLAINTIFF-APPELLANT,
v.
RAMON CLIMACO, M.D., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Effingham County. No. 93-L-56. Honorable Richard H. Brummer, Judge, presiding.

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

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

Plaintiff, Sheri Lynn Banks, appeals from the jury's verdict in favor of defendant, Ramon Climaco, M.D., in this medical malpractice case. Sheri, who is the widow of Jeffrey Lynn Banks, appeals on her own behalf and in behalf of Brooke Shelby Banks, Jeffrey's daughter. Jeffrey died on October 28, 1991, at the emergency room (ER) of St. Anthony's Memorial Hospital (St. Anthony's) in Effingham, Illinois. Dr. Climaco was the attending physician on call when Jeffrey arrived at the ER at approximately 9:35 p.m. on October 27, 1991.

Plaintiff filed her multiple-count complaint alleging medical malpractice by defendants Climaco and Ashokkumar Shah, the anesthesiologist on duty the night of Jeffrey's death. St. Anthony's and nurse anesthetist James Kinney were named as respondents in discovery, until they settled with plaintiff some months before the trial. Dr. Shah settled with plaintiff at the close of all of the evidence. Hence, during its deliberations the jury considered only the liability of Dr. Climaco.

On appeal, Sheri argues (1) that the trial court committed reversible error by allowing evidence, argument, and a jury instruction to the effect that the sole proximate cause of Jeffrey's death was someone other than defendant Climaco; (2) that the trial court erred in failing to grant her motion for mistrial, which motion was based upon a newspaper disclosure of the pretrial settlement of St. Anthony's; and (3) that the court erred in failing to grant her motion for a directed verdict or for a judgment notwithstanding the verdict. For reasons we will more fully explain, we affirm.

I. FACTS

A. NEWSPAPER DISCLOSURE OF PRETRIAL SETTLEMENT

Prior to the opening statements of the attorneys, the trial judge told the 12 regular jurors and the two alternates that they should avoid all media accounts of the trial and, in particular, that they should avoid reading local newspapers and listening to the local radio stations during the trial. At the end of the first day of the trial the jurors were admonished again to "avoid all media contacts."

On the second day of trial, plaintiff's attorney moved for a mistrial, on the basis of the following quote on the front page in the previous day's afternoon edition of the local newspaper:

"In the original lawsuit filed Jan. 11, 1994, several area doctors along with St. Anthony's Memorial Hospital were named as respondents in discovery in the lawsuit over the 1991 death of Jeffrey Banks. Subsequent motions in the case involve a settlement made with the hospital, according to Charlene A. Cremeens, attorney for one of the defendants. All others named as respondents in discovery *** have been dismissed, according to Cremeens."

Plaintiff's attorney argued that his case had been irreparably prejudiced by the newspaper article, that the court should order a mistrial immediately, since the jury had only heard one day of testimony, and that he did not want to proceed with the trial, which was expected to take a full two weeks. Plaintiff's attorney argued that in order to make a record after the trial was over, he would have to "go out and basically interview the jurors and get affidavits and file a motion and get the thing set up for appeal." The trial court denied the motion for mistrial, after individually interviewing all 12 regular jurors and the two alternates. None of the jurors had read the newspaper article, except one of the regular jurors, who was removed from the panel and replaced with one of the alternates.

B. EVIDENCE PRESENTED AT THE JURY TRIAL

Jeffrey arrived at the ER with a self-inflicted stab wound to the abdomen. At the ER, Dr. Climaco ordered a continuation of the fluid therapy started by the ambulance staff and assessed his vital signs. Jeffrey's blood alcohol content was assessed at .22, his breathing was labored, his blood pressure was within the normal range, and his heart rate was abnormally high.

The respiratory therapist on duty that night, Jeffrey Pietrzyk, continued the respiratory assistance given by the ambulance staff, which was to assist Jeffrey's breathing with an "ambu bag." According to all accounts of the medical personnel at the ER, Jeffrey was combative when he arrived at the ER and during most of his time there. As a result of his combativeness and since the knife was secured in his abdomen prior to surgery, Jeffrey's limbs were restrained during his entire time in the ER.

Climaco determined that Jeffrey required surgery to remove the knife from his abdomen, a decision which none of the experts who testified at trial criticized. However, no surgeon was available as soon as needed, so Climaco ordered Jeffrey transferred to Carle Clinic in Champaign, Illinois, where the surgery was to be done. Prior to transfer, Climaco decided to intubate Jeffrey. When a patient is intubated, a respiratory tube is place in the patient's mouth and into his trachea, so that he can be artificially respirated. Climaco's attempt to intubate Jeffrey at approximately 10 p.m. was unsuccessful. As a result, Climaco called for an anesthesiologist to perform the intubation. At approximately 10:30 p.m., a nurse anesthetist, James Kinney, came in and also unsuccessfully tried to intubate Jeffrey. Starting at 10:30 p.m., Dr. Climaco ordered that Jeffrey be given valium to sedate him.

When Shah, the anesthesiologist, arrived at 11:07 p.m., he talked briefly with his nurse anesthetist and then ordered succinylcholine, a drug that temporarily paralyzes a patient, including his ability to breathe on his own, in order to accomplish the intubation. Before Jeffrey was given the succinylcholine, he was preoxygenated, i.e., he was given additional oxygen to avoid problems with the period during which he could not breathe, which occurs before the endotracheal tube is in place and working properly. Shah placed the endotracheal tube in Jeffrey's throat, and Pietrzyk listened for Jeffrey's breath sounds. Pietrzyk testified that when he did not hear the proper breath ...


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