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February 27, 1997


Appeal from the Circuit Court of Cook County. No. 90--L--7583. Honorable Walter Bieschke, Judge Presiding.

Released for Publication April 24, 1997.

The Honorable Justice Cerda delivered the opinion of the court. McNamara and Burke, JJ., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

This is a medical malpractice case in which plaintiff, Rosemary Dupree, Special Administrator of the Estate of Christopher Hunter, alleged that a proximate cause of Christopher's death was the failure of defendant, Cook County, to correctly diagnose that he was physically abused by his mother, Mildred Hunter, and to report that abuse. Plaintiff's fourth amended complaint alleged that defendant: (1) carelessly and negligently failed to properly interpret a CT scan; (2) carelessly and negligently allowed a resident to interpret a CT scan without being reviewed by the attending radiologist and attending physician; (3) carelessly and negligently discharged Christopher without a proper evaluation of the CT scan; and (4) carelessly and negligently discharged Christopher to his mother's care without notifying the Department of Children and Family Services (DCFS) of a fractured skull and subdural hematomas.

Following a jury verdict in favor of defendant, plaintiff appealed. On appeal, plaintiff asserts that the trial court erred in not striking the expert testimony of Dr. Byrd, whose opinions were not based on evidence, and abused its discretion (1) in denying her motion for a mistrial based on defense counsel's repeated violation of in limine orders and other misconduct; (2) in denying her motion for a new trial based on the same misconduct by defense counsel; (3) in barring her expert witness, Dr. Liza Squires, as a Supreme Court Rule 220 sanction (134 Ill. 2d R. 220); and (4) in denying her motion for a new trial since the jury verdict was contrary to the manifest weight of the evidence. For the following reasons, we affirm.

Christopher was born on December 29, 1986. On March 2, 1987, he was admitted to Cook County Hospital, where he underwent a CT scan of his brain. Defendant misread the March 6, 1987, CT scan as normal and failed to diagnose the bilateral subdural hematoma and skull fracture that were present. DCFS was not notified, and on March 9, 1987, Christopher was discharged to his mother, who was instructed to bring him to the High Risk Clinic for a follow-up visit at 12:30 p.m. on March 16, 1987. She failed to do so, and on July 3, 1987, Christopher was admitted to Cook County Hospital, where he was diagnosed with hydrocephalus, commonly known as water on the brain. The attending pediatrics physician, Dr. Demetra Soter, viewed Christopher's March 6th CT scan and determined that it was abnormal. It showed a bilateral subdural hematoma and a skull fracture. After Christopher was discharged from the hospital in July 1987, he was placed in foster care and died on May 16, 1988.

Following opening statements, plaintiff moved for a mistrial based on defendant's statements that plaintiff's expert witness, Dr. Marshall Salkin, was paid to review cases and that Mildred Hunter shook Christopher in anger for 15 minutes. The motion was denied.

Dr. Demetra Soter, a child abuse expert, testified as an adverse witness. She stated that she was one of the pediatricians who treated Christopher when he was admitted to the hospital's pediatric intensive care unit on July 3, 1987, in critical condition. At that time, Christopher was skinny and very, very small, and his head was the size of a small watermelon. He was blind, deaf, and severely brain-damaged. He could not turn his head, roll over, or sit up. After she diagnosed Christopher with hydrocephalus, a shunt was immediately placed in his head to drain the fluid. When Dr. Soter reviewed the records from Christopher's March 2, 1987, hospitalization, she found no indication that Christopher had been blind, deaf, or brain-damaged at that time. His symptoms were seizures, sleepiness, and lethargy, but his head was not big.

Dr. Soter's opinion was that a radiology resident had misread the March CT scan as normal when it was abnormal. It showed subdural hematomas, or hemorrhages, and a skull fracture. In contrast, the July 1987 CT scan of Christopher's brain indicated that there was an excessive build-up of brain fluid and very little brain remaining. Dr. Soter explained that the excess fluid, not the subdural hematomas, destroyed the brain by compressing it, which resulted from the lack of medical care after March 1987.

If the CT scan had been properly read and interpreted in March 1987, Dr. Soter thought that DCFS would have been notified of possible child abuse. She did not know, however, what DCFS would have done because some children with skull fractures go home. If DCFS had followed-up with medical care, Christopher would probably have lived, but would have been brain-damaged. Proper follow-up of Christopher's condition would have included frequent observation of the size of his head, which would have controlled the size and condition of his head. Dr. Soter believed that there was evidence of further abuse after Christopher's March discharge from the hospital since small subdurals usually do not worsen unless there is additional abuse.

On cross-examination, Dr. Soter explained that shaken baby syndrome exists where children under one or two years of age are shaken with enough severity that the brain goes in the opposite direction from the skull, tearing vessels between the brain and skull. This causes bleeding on the brain's surface, which are called subdural hematomas. On the outside, the child will look normal, but there will be neurological changes, such as lethargy.

In Dr. Soter's opinion, death was not caused by the CT scan being misread in March because the subdural hematomas and skull fracture were not the cause of death. The cause of death was hydrocephalus caused by Hunter's failure to follow-up Christopher's care after his March discharge, which led to the fluid building up inside Christopher's brain.

John Friedman, the DCFS social worker who was assigned to Christopher's case in July 1987, testified that there had been no DCFS contact with Christopher's family prior to July 1987. Friedman took Christopher's case to court because of the medical records and the statement by Christopher's grandmother, Rosemary Dupree, who had been living with Christopher and his mother. Dupree told him that the abuse and neglect by Christopher's mother had been ongoing. Friedman testified that he probably would have sought to have Christopher removed from his home in March 1987 if he had known about the skull fracture and had been told that Hunter had caused it.

Friedman explained that physicians and health care workers are required by statute to notify DCFS when a three-month-old infant is admitted to the hospital with a skull fracture if abuse or neglect are suspected. When DCFS finds serious injuries on a child, such as a skull fracture, it makes inquiries with the doctors, hospital, family, and neighbors. If there is a determination that the child is not safe at home, DCFS normally removes the child from the home. If, however, there is no evidence of child abuse, Friedman would be suspicious and would investigate, but would not necessarily take the child from the home. He had no opinion about whether DCFS would have taken Christopher from his home in March 1987 if Friedman had known of the fracture and subdural hematoma, but did not know about any prior child abuse.

Dr. Marshall Salkin, an emergency room physician, testified as plaintiff's expert witness. It was Dr. Salkin's opinion that defendant deviated from the standard of care when the resident and attending physician misread the CT scan; when the attending physician allowed the resident to make a final diagnosis instead of reading the CT scan himself; and when the attending physician discharged Christopher without an official radiology report or CT scan reading in his chart. Dr. Salkin considered the breaches a contributing cause of Christopher's death on the ground that his injuries were not irreparable when he was discharged in March 1987. Even though Dr. Salkin agreed that Christopher was a victim of shaken baby syndrome, he did not consider Christopher's injuries irreparable because Dr. Ravindranath, who was the attending physician in March, said that Christopher was continually improving during his hospitalization.

It was Dr. Salkin's opinion that the improper discharge caused a lack of DCFS involvement, which resulted in the lack of follow-up care, which caused irreparable brain damage prior to July 1987. He was convinced that Christopher would still be alive if the CT scan had been read properly and DCFS had been notified because he thought that the brain damage could have been abated by prompt treatment following the March hospitalization. He believed that DCFS would have taken Christopher from his home and placed him in foster care, thus ensuring adequate follow-up care.

Linda Barstatis, Christopher's foster mother, testified about Christopher's care after he was discharged from the hospital in July 1987. Several times, defense counsel tried to question Barstatis about DCFS's policy on parents visiting their children in foster care, but the trial court sustained plaintiff's objection, struck the defense counsel's statement that her questions went to the damages issue, admonished the jury to disregard her statement, and warned counsel to "stay away from that area."

Defense counsel then asked Barstatis if anyone from Christopher's family tried to contact her while Christopher was living with her. The trial court ...

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