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10/17/97 BRITTANY LYNN WINGO v. ROCKFORD MEMORIAL

October 17, 1997

BRITTANY LYNN WINGO, A MINOR, BY HAROLD G. WINGO, JR., AND DONNICA L. WINGO, HER PARENTS AND NEXT FRIENDS; HAROLD G. WINGO, INDIV.; AND DONNICA L. WINGO, INDIV., PLAINTIFFS-APPELLEES,
v.
ROCKFORD MEMORIAL HOSPITAL, DEFENDANT-APPELLANT (ROCKFORD CLINIC, LTD., AND EDWARD W. KLINK, DEFENDANTS).



Appeal from the Circuit Court of Winnebago County. No. 92--L--345. Honorable Janet Clark Holmgren, Judge, Presiding.

Released for Publication November 18, 1997.

The Honorable Justice Thomas delivered the opinion of the court. Doyle and Rathje, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

The plaintiffs, Harold G. Wingo and Donnica Wingo, filed this medical malpractice action against the defendant Rockford Memorial Hospital (Hospital) and defendant Edward W. Klink, M.D., to recover for damages (severe brain damage) allegedly suffered by their baby, Brittany Lynn Wingo, as a result of the defendants' negligence in failing adequately to treat and in releasing the mother from the Hospital at a time when she was leaking amniotic fluid prior to Brittany's birth. Following closing arguments in the case but prior to the jury's verdict, the plaintiffs and Dr. Klink entered into a settlement agreement. Pursuant to the terms of that agreement, Dr. Klink agreed to pay the plaintiffs $1 million if the Hospital was found negligent and $3 million if the Hospital was not found negligent. Following its deliberations, the jury returned a verdict against the defendants for $10,232,523, and the trial court subsequently entered judgment in accordance with the verdict. The Hospital appeals.

FACTS

The record shows that Donnica came to the Hospital at 5 a.m. on January 11, 1991, reporting that her bag of waters had broken. She was 35 to 36 weeks pregnant. Jayne Foster, a nurse at the Hospital, charted that a large amount of clear amniotic fluid was leaking from the patient. Donnica was also experiencing some uterine contractions. Thomas Iannucci, M.D., examined the patient and also noted that she was leaking amniotic fluid. After two tests came back positive for a ruptured bag of waters, Dr. Iannucci diagnosed Donnica as having ruptured membranes and admitted her to the Hospital with orders that she be monitored for the possible onset of infection.

Later that morning Dr. Klink and nurse Carol Welden took over the care of the patient. Around 9:30 a.m., Dr. Klink examined Donnica and charted that he found no amniotic fluid at that time. Up to that exam, the chart indicated that the patient had continued leaking fluid for the previous five hours. Because he did not observe any fluid during his examination, Dr. Klink began to suspect that the patient did not have a ruptured bag of waters or that a rupture had sealed over. Welden was aware of Klink's suspicions.

The hospital charts revealed that after Dr. Klink's examination Welden continued to observe Donnica leak clear fluid at least intermittently up to her last recorded observation at 2 p.m. At 2:45 p.m., Dr. Klink spoke with Welden on the telephone about Donnica's condition. It is undisputed that neither Dr. Klink nor Welden could recall the specifics of that conversation. After this phone conversation, Donnica was discharged from the Hospital. About 11 p.m. that same day, Donnica telephoned Dr. Klink's answering service and then spoke with Dr. Klink at 11:30 p.m., complaining of cramping, chills, and diarrhea. Dr. Klink told Donnica to remain at home.

Around 3 a.m. on January 12, 1991, Donnica awoke in active labor and returned to the Hospital. Fetal heart rates showed that the baby was severely distressed and in need of immediate delivery. The baby, Brittany, was delivered at 3:52 a.m. in a limp, nonresponsive, and profoundly depressed condition. Tests later showed that the child was diagnosed with a staph aureus sepsis and severe perinatal asphyxia or ischemia. Staph aureus is a specific type of bacteria that can cause infection in a newborn infant. The same bacteria was found in the cervix of the mother. It was later determined that Brittany was born with severe brain damage.

Welden testified in her deposition that, based on her usual and customary practice, she likely would have told Dr. Klink during their 2:45 p.m. telephone conversation that "there has been no change since you were here last." She further acknowledged that this would have been the extent of the detail given to the doctor. At trial, she testified that she would not have simply told the doctor that there had been no change. She testified that she would have summarized the condition of the patient throughout the day and would have told the doctor that the patient leaked amniotic fluid if she continued to do so. Welden further testified at trial that, if she had only told the doctor during that conversation that there had been no change, it would have been a breach of the standard of care. She also acknowledged that, if she failed to tell the doctor about the leaking fluid even if he did not ask, it would have been a breach of the standard of care.

Dr. Klink testified that, if the patient leaked fluid after his examination, it would tend to confirm a ruptured bag, not that a leak had sealed over. A patient with a ruptured bag should not be released from the hospital. He further testified that he must not have been told about the leakage during the 2:45 p.m. conversation with Welden, since he would never have released a patient who had leaked fluid after his earlier examination. If Welden had informed him of the leakage, he would have ordered that the patient remain in the hospital for continued monitoring. He further noted that, if Welden had told him there had been no change, he would have taken this to mean the patient had not leaked fluid from the time he was there last at 10 a.m. until 2:45 p.m. Furthermore, if Welden had questioned his discharge order on the basis of continued leaking, he would not have released Donnica.

Caryl Miller, the director of women's services and the head obstetrical nurse at the Hospital, testified that she reviewed the depositions in the case, including the deposition of Jayne Foster, to understand what happened in the case. She noted that she did not rely on the depositions in formulating her opinions in the case, but acknowledged that she had stated in her deposition that she had relied upon the depositions in finally arriving at her opinions, even if they only served to better inform her as to what likely happened in the case. Miller noted that Foster was critical of Welden in her deposition stating that she felt that Welden deviated from the standard of care in allowing Donnica to be discharged while leaking amniotic fluid. According to Miller, Foster indicated in her deposition that she felt that Welden departed from the standard of care in not questioning Dr. Klink's discharge order and in not utilizing the administrative chain of command to prevent the discharge. Counsel for the Hospital objected on hearsay grounds to Miller's testimony about what Foster said in her deposition. The trial court overruled the objection.

Miller further testified that the standard of care required Welden to tell Dr. Klink that Donnica had leaked amniotic fluid after the 10 a.m. examination whether Dr. Klink asked or not. Based on her review of the depositions taken in the case, Miller noted that all Welden told Dr. Klink was that there had been no change since the doctor was "here last" and Dr. Klink interpreted that to mean that the patient had not leaked fluid since he last saw her.

Sarah Craig, a registered nurse and perinatal clinician in charge of the obstetrical department at the Hospital, testified as an adverse witness called by the plaintiffs that when a patient is admitted with a ruptured bag of waters one of the most important observations a nurse must make is whether the patient continues to leak amniotic fluid. Given the continued leaking and Dr. Klink's view of the situation following his examination, Craig opined that the standard of care required Welden affirmatively to tell Dr. Klink during the 2:45 p.m. conversation that the patient had continued leaking clear fluid. If Welden did not tell Klink, whether he asked or not, that the patient experienced further leaking following the doctor's examination, Welden deviated from the applicable standard of care. If Welden stated only that there had been "no change" as she stated in her deposition, Craig expected Welden to know that the doctor may consider that the nurse was referring to the patient's condition at the time the doctor was last there, not to what happened subsequently. Craig also opined that Welden had a sufficient basis to question Dr. Klink's discharge order and to go up the administrative chain of command to prevent the discharge. If she had, Craig opined, Welden would have conformed with the standard of care.

During the Hospital's case in chief, Craig testified that if Welden only said there had been no change since you were here last this morning that would have been an accurate way to report the situation. Craig then stated that Welden did not deviate from the standard of care either in her communication with the doctor at 2:45 p.m. or in her failure to use the administrative chain of command to question the discharge order.

Mary Mather, a nurse at the Hospital, testified that if during the 2:45 p.m. conversation with Dr. Klink Welden stated only that there had been "no change" in the patient, that would have been an appropriate and correct way to report the circumstances to Dr. Klink. Mather opined that Welden's treatment of the patient fell within the applicable standard of care.

Robert C. Vannucci, M.D., a specialist in child neurology and pediatrics, testified that in his opinion Brittany's brain damage was caused by septic shock just prior to delivery, during which there was severe ischemia or lack of blood flow to the brain. Dr. Vannucci noted that Donnica had a ruptured bag of waters on January 11, 1991, at 5 a.m. A ruptured membrane allows direct exposure of the fetus to outside bacteria. In his opinion, based on cultures taken from the child and mother, bacteria from the mother's cervix migrated into the fetus. Within hours of the rupture, bacteria was already entering Brittany's body. If left uncorrected, the situation would result in reduced blood flow to the brain, causing ischemia and brain damage. Vannucci opined that Donnica's discharge from the Hospital was the cause of Brittany's brain damage. Since the baby was delivered at 3:52 a.m., the brain damage did not exist a full four hours before delivery.

Martin Gimovsky, M.D., a board certified obstetrician and gynecologist, testified that he teaches nurses in programs focusing on the assessment of a fetus during labor, interpretation of fetal monitoring, management of labor and delivery, and its complications. He also routinely lectures obstetrical nurses in continuing education courses, which include the subject of prematurely ruptured membranes. Dr. Gimovsky opined that Dr. Klink deviated from the standard of care in discharging Donnica on the afternoon of January 11, 1991, and in failing to admit her after the 11:30 p.m. phone conversation that night. He noted that Dr. Klink failed to perform tests that a reasonably competent obstetrician would perform to determine whether or not Donnica had a leak that sealed over.

Dr. Gimovsky further testified that Welden deviated from the standard of care in not appropriately informing Dr. Klink that the patient continued to leak fluid. He stated that Welden had a responsibility to make sure Klink understood that the patient continued to leak fluid. He also opined that Welden deviated in failing to question the doctor's discharge order or utilize the administrative command to prevent the patient's discharge. In his opinion, if Welden had not deviated from the standard of care, the mother would not have been discharged, she would have been appropriately monitored, and the baby would have been delivered before the onset of brain damage.

William Mayer, M.D., testified that, if Welden had told Dr. Klink that "nothing had changed since you were here last," a reasonably well-qualified obstetrician would take that to mean that nothing had changed since Dr. Klink had been there last, not since a prior examination by another physician. In this case, it would mean that the patient had not leaked any further fluid. Dr. Mayer stated that, in order to conform to the standard of care of a reasonably well-qualified obstetrical nurse, Welden had to communicate to Dr. Klink the important things that had taken place since he left, including that the patient intermittently leaked amniotic fluid following Dr. Klink's examination. Furthermore, even if Dr. Klink was aware of the leakage but still discharged the patient, Welden deviated from the applicable standard of care by not using the administrative chain of command to prevent the discharge.

EXPERT PHYSICIAN TESTIMONY TO ESTABLISH THE STANDARD OF CARE

On appeal, the Hospital first argues that the trial court erred in allowing the plaintiffs to present expert testimony from three doctors to establish the applicable standard of care for the Hospital's nurse. Citing Dolan v. Galluzzo, 77 Ill. 2d 279, 32 Ill. Dec. 900, 396 N.E.2d 13 (1979), the Hospital argues that the expert testifying as to the standard of care must be ...


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