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12/10/97 HILDA AGUILERA v. MOUNT SINAI HOSPITAL

December 10, 1997

HILDA AGUILERA, INDIV. AND AS SPECIAL ADM'X OF THE ESTATE OF SALVADOR AGUILERA, DECEASED, AND AS MOTHER AND NEXT FRIEND OF LETICIA AGUILERA AND SALVADOR AGUILERA, JR., MINORS, PLAINTIFF-APPELLANT,
v.
MOUNT SINAI HOSPITAL MEDICAL CENTER, AND KAREN CERVENKA, DEFENDANTS-APPELLEES.



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

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

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

We revisit, at the direction of our supreme court, an action for survival and wrongful death based on medical malpractice. The jury found for 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.

In Aguilera v. Mt. Sinai Hospital Medical Center, 282 Ill. App. 3d 363, 668 N.E.2d 94, 217 Ill. Dec. 909 (1996), we affirmed the trial court's judgment notwithstanding the verdict. On June 4, 1997, our supreme court ordered that we reconsider our decision in light of Holton v. Memorial Hospital, 176 Ill. 2d 95, 679 N.E.2d 1202, 176 Ill. 2d 95, 223 Ill. Dec. 429 (1997). We withdrew our opinion and invited the parties to rebrief the case in light of Holton. After reviewing the case under the guidance of Holton, we again affirm the judgment notwithstanding the verdict entered by the trial court.

The record shows that in the early morning hours of April 19, 1987, Salvador Aguilera was logged into the emergency room of Mount Sinai Hospital, complaining of numbness on the left side of his body. His brother, who drove him to the hospital, said they arrived at 2 a.m., but hospital records show Aguilera arrived at 3 a.m. Whatever the hour, the parties disagree about the care and treatment Aguilera received over the next several hours. Plaintiff's expert medical witnesses testified that the treatment deviated from the standard of care. Defense expert medical witnesses testified that it did not.

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 that revealed a massive intracerebral hemorrhage measuring 4 by 6 centimeters. 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 of plaintiff's 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 medical or surgical intervention that, in Dr. Hamilton's opinion, may 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.

***

At that point his chance of survival, if appropriately diagnosed, is greater than fifty percent.

***

Q. Do you believe the delay is directly related ...


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