APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RONALD C. RILEY, JUDGE PRESIDING.
Released for Publication August 5, 1997. Petition for Rehearing Denied August 13, 1997.
Presiding Justice Wolfson delivered the opinion of the court. Cerda, JJ., concurs. McNAMARA, specially concurring.
The opinion of the court was delivered by: Wolfson
PRESIDING JUSTICE WOLFSON delivered the opinion of the court:
The plaintiffs in this case say that 12 minutes was the difference between life and death for their son, Ryan. They also say that the actions or omissions of Dr. Mustafa Kemal Yon during that brief span of time are what caused Ryan's death. The jury found otherwise. This court must decide, among other things, whether the jury's verdict for the defendants was against the manifest weight of the evidence. We affirm.
In a third amended complaint, Michael O'Donnell and Kathryn Hunt (Ryan's parents) alleged that Holy Family Hospital was negligent because it failed to provide timely and competent resuscitative care to Ryan; because the hospital failed to provide a neonatologist within 30 minutes of the obstetrician's decision to perform an emergency Caesarian section (C-section); because the hospital violated its Maternity and Neonatal Service Plan in several ways; and because the hospital failed to have in place a reliable means of communicating with its on-call neonatologists. Plaintiffs further alleged that Dr. Yon, as agent, and the hospital, as principal, were negligent because: Dr. Yon failed to properly intubate and ventilate Ryan; Dr. Yon failed to monitor or have others monitor Ryan's heart rate; Dr. Yon failed to perform cardiac compressions on Ryan; Dr. Yon failed to resuscitate Ryan; and Dr. Yon failed to timely anesthetize Kathryn (Ryan's mother) in preparation for the C-section.
Although the trial in this case lasted several days, much of the evidence focused on the 12 minutes between 11:10 and 11:22 a.m. on May 22, 1991. This time period was important because, while there was some discrepancy in the records, it was generally accepted that Kathryn Hunt gave birth to a son, Ryan, by Caesarean section (C-section) at Holy Family Hospital at 11:09 a.m.; that Dr. Yon, Kathryn's anesthesiologist for the C-section, took over resuscitation efforts on the infant at 11:10 a.m.; and that Ryan was clinically dead when the neonatologist, Dr. Go, arrived in the delivery room at 11:22 a.m. Resuscitation efforts continued for nearly two hours after Dr. Go arrived and Ryan was not pronounced dead until 1:15 p.m. But what transpired during those 12 minutes and whether anything Dr. Yon did or did not do during that time deviated from the standard of care and proximately caused Ryan's death were the main issues at trial.
Kathryn Hunt was 41 1/2 weeks pregnant when she arrived at Holy Family Hospital in the early morning hours of May 22, 1991. Her amniotic sac already had ruptured. Still, the progress of her labor, as observed by the doctors attending her throughout that morning, was slow. When Dr. Carson, Kathryn's obstetrician, took over Kathryn's care at 9:40 a.m., Kathryn's cervix had dilated only 4 cm. The fetal monitor strip up to this point, however, showed that the baby's heart beat was stable and strong.
Between 10:05 and 10:24 a.m. the fetal monitor strip began to show that problems were developing. There were decelerations in the fetal heart rate indicating that the baby was not getting enough oxygen. At 10:30 a.m., when Dr. Carson next checked Kathryn, the doctor saw the strip and an unusually large amount of blood in Kathryn's pelvic cavity. The doctor concluded that an abruption (a separation of the placenta from the uterine wall) had occurred. For this reason, she decided that an emergency C-section was necessary. The decision to perform a C-section was made at approximately 10:36 or 10:37 a.m.
The hospital delivery room personnel immediately went into action. A nurse called the surgical department and requested a surgical assistant and an anesthesiologist. Another nurse called the nursery department and told the staff nurse there to notify the on-call neonatologist that an emergency C-section was going to be performed. The nursery nurse paged Dr. Go.
Dr. Go, the neonatologist, was driving in her car to another hospital when she received the page. Dr. Go called Holy Family Hospital at about 10:55 a.m. When she learned of the emergency, she agreed to proceed to Holy Family Hospital immediately.
Once when Dr. Carson checked the fetal monitor attached to Kathryn it showed a "flat line" for two-four minutes, indicating that the fetus was not getting any oxygen. For this reason Kathryn was given oxygen and turned on her side to improve circulation to the fetus.
The monitor was disconnected from 10:41 until 10:46 a.m., while Kathryn was moved to the delivery room. When reconnected at about 10:47 a.m., the monitor showed some improvement in the fetus' heart rate. At about 10:50 a.m., Kathryn was in the delivery room and being prepped for surgery. Dr. Yon, the anesthesiologist, began to administer anesthesia to Kathryn. By 11:02 or 11:03 a.m., less than 30 minutes from the time Dr. Carson decided to perform the C-section, the first incision was made by Dr. Carson. According to the fetal monitor strip, Ryan was born at 11:09 a.m.
Dr. Carson determined, after Ryan's delivery, the placental abruption had not been complete, but she categorized it as "severe." Dr. Carson assessed Ryan briefly as she passed him to Dr. Zamirowski, a general practitioner who came to delivery to help in this emergency. Dr. Carson noted that Ryan was limp and not breathing at birth. As the other doctors worked on trying to resuscitate Ryan, Dr. Carson never heard Ryan cry.
Dr. Carson opined that the pain medications and anesthesia administered to the mother had contributed to Ryan's depressed condition at birth. Dr. Carson also admitted that, after Ryan's birth, Kathryn developed disseminated intravascular coagulation (DIC), a condition in which the mother uses up much of the clotting factors in the blood. Also, a hematocrit done on the blood in the cord going to Ryan showed that his blood count was low, though not alarmingly so. Still, the low blood count indicated that he might have had some blood loss due to the abruption.
Despite Ryan's condition at birth, it was Dr. Carson's opinion that neither the delivery, nor anything that occurred before the delivery, was the proximate cause of Ryan's death. Her medical opinion was that Ryan died due to an inability to be resuscitated after birth. Why Ryan could not be resuscitated, she could not explain.
Plaintiff's expert, Dr. Kimble, agreed that Ryan died after birth due to failed resuscitation attempts. Dr. Kimble stated:
"I think that Ryan's death resulted because of the failure on the part of Dr. Yon to be able to provide ventilation to this baby in the first very few minutes of life, and I think that why ventilation was not successful in Dr. Yon's hands is not entirely clear."
It was his opinion, however, that Dr. Yon's inability to resuscitate Ryan stemmed from one of three possibilities: (1) that Dr. Yon put the endotracheal tube in the wrong place, (2) that Dr. Yon never ventilated Ryan using the Ambu bag, or (3) that Dr. Yon did not squeeze the Ambu bag sufficiently to fill Ryan's lungs.
Dr. Kimble identified some markings on an autopsy photograph depicting Ryan's airway. This picture, Dr. Kimble said, was evidence of trauma to the esophagus caused by Dr. Yon's misplacement of the endotracheal tube. This theory was discounted, however, by Dr. Yana, the pathologist. Dr. Yana testified that when he performed the autopsy on Ryan, he found that Ryan's airway was "patent," i.e., that it showed no hemorrhage, laceration, or other abnormality. Dr. Yana said that the markings identified by Dr. Kimble as evidence of laceration were, in actuality, the incision site where Dr. Yana removed the thyroid gland.
Dr. Yana said that his examination of Ryan revealed that the tracheal bifurcation (the bronchial tree leading to the two branches of the lungs), both main bronchi, as well as the bronchial bifurcation, were almost completely occluded by a - thick, yellow-ish tan mucoid material.
The other two theories proposed by Dr. Kimble regarding Dr. Yon's failure to resuscitate Ryan were discounted by the testimony presented by other witnesses. One witness in particular was Dr. Zamirowski.
After Ryan was born, he was handed over to Dr. Zamirowski and Nurse DeLorge at 11:09. Ryan was immediately placed on the warming table, cleaned off, and his airway suctioned. Dr. Zamirowski testified that Ryan's mouth and nose contained a bloody mucus, indicating that he had swallowed some of the amniotic fluid. This was not a good sign, said Dr. Zamirowski, because "free" blood can be an irritant and can cause swelling of the tissues.
Though a normal baby's heart rate ranges between 150 and 160 beats per minute, Ryan's heart rate was only 60 beats per minute. Ryan did not respond to initial attempts to resuscitate him. For these reasons, Dr. Zamirowski called for Dr. Yon's assistance. Dr. Yon took over Ryan's care at 11:10, when Ryan was one minute old.
At this one minute mark, Dr. Zamirowski evaluated Ryan as a "3" on the APGAR scoring system. A perfect APGAR score is "10," which represents a score of "2" in each of five categories. Ryan was given a score of zero for breathing because he was not making any effort to breath; a score of zero for muscle tone because he was "totally limp, like a rag doll"; a score of "1" for responsiveness because he had a minimal reflexive response to suctioning; a score of "1" for skin color because he was not totally blue; and a score of "1" for heart rate because his heart rate was 60 beats per minute. This APGAR score reveals that Ryan was extremely sick at the time he was born.
The ABC's of resuscitation are Airway, Breathing, and Circulation. The most important thing, testified Dr. Zamirowski, is to get an open airway. According to Dr. Zamirowski's testimony, Dr. Yon's initial actions were an attempt to open an airway for Ryan. Dr. Yon did some deep suctioning by placing an endotracheal tube down Ryan's throat, past the vocal cords, using a laryngoscope. This process is called intubation. After suctioning through the tube, Dr. Yon attached the tube to an Ambu bag and an oxygen source. Dr. Yon then began to pump oxygen into Ryan by compressing and releasing the Ambu bag. This process is referred to as "bagging" or "oxygenating." Dr. Zamirowski reported that he heard breath sounds from Ryan's chest as Dr. Yon "bagged" Ryan using the Ambu bag. He also watched as Ryan's chest rose and fell.
When Ryan was five minutes old, Dr. Zamirowski assessed Ryan's APGAR scores again. The 5-minute score of "5" showed that Ryan was making only slight improvement. Dr. Zamirowski gave Ryan a "1" for skin color; a "1" for muscle tone; a "1" for responsiveness; and a "2" for heart rate, because it had improved to about 130 beats per minute. This improvement was generally believed to be due to some oxygen getting into Ryan's lungs.
Dr. Zamirowski testified, too, that Dr. Yon began chest compressions on Ryan to artificially pump the heart in an attempt to circulate the oxygenated blood. Ryan, however, remained unresponsive. Because Ryan was not breathing on his own, chest compressions were futile. Ryan's heart beat decreased again to 60 beats per minute and then, at about the seven minute mark, his heart rate went to zero. Dr. Yon continued his attempts at suctioning in an effort to open the airway. He intubated Ryan's stomach using a nasogastric tube in an attempt to empty the stomach of any fluid or air so that the lungs would have more room to fill.
At 11:22 a.m., Dr. Go, the neonatologist, entered the delivery room and took over resuscitation efforts. At the time of her arrival, Ryan had not been breathing and had no pulse for several minutes. He was clinically dead. Still, Dr. Go continued her efforts to revive Ryan for another two hours. According to Dr. Go and two respiratory therapists who were called to delivery to assist with the emergency, Ryan never breathed on his own, and his skin color never changed, even though it appeared that the lungs were inflating.
Dr. Yon testified about his efforts to resuscitate Ryan. He explained that he had been an anesthesiologist since 1958 and had performed numerous resuscitations on both infants and adults. In fact, before the late 1960's or early 1970's, when neonatology became a separate practice, ...