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Pantaleo v. Our Lady of Resurrection Medical Center

June 02, 1998


The opinion of the court was delivered by: Justice Tully

Appeal from the Circuit Court of Cook County.

Honorable Denise M. O'Malley, Judge Presiding.

Plaintiff, Serafino Pantaleo, as special administrator of the Estate of Joseph Pantaleo, deceased, brought a medical malpractice action to recover damages against defendants, Our Lady of the Resurrection Medical Center (OLRMC) and Dr. Alison Smith pursuant to the Survival Act (755 ILCS 5/27-6 (West 1994)) and the Wrongful Death Act (740 ILCS 180/0.01 (West 1994)). The jury returned a verdict for plaintiff on the survival count in the amount of $1,000,000 for pain and suffering and $250,000 for disability. The jury also rendered a verdict for plaintiff on the wrongful death count, but awarded zero damages to Serafino and Antoinette Pantaleo, decedent's parents, based on its finding of contributory negligence. In order to reach a result which was consistent with the jury's finding of contributory negligence of both parents, the trial court vacated the judgment for plaintiff on the wrongful death count, and entered judgment for defendants. On August 1, 1996, the trial court entered judgment on both verdicts. The trial court denied plaintiff's post-trial motion on February 7, 1997. Defendants now appeal from the verdict on the survival count. Plaintiff cross-appeals from the verdict on the wrongful death count. This court has jurisdiction pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons which follow, we affirm.


The following facts were adduced at trial. On November 18, 1988, at approximately 3 a.m., Serafino Pantaleo (Serafino) brought his 17-year-old son, Joseph Pantaleo (Joseph), to OLRMC's emergency room because Joseph was complaining of pains in his right shoulder and under his right armpit. Serafino was also concerned because he had noticed a red mark under Joseph's right armpit.

After they arrived at OLRMC, Nurse Terri Aquino examined Joseph. At trial, Aquino recounted that Joseph's vital signs were normal and he did not have a fever. Joseph's only complaint was of pain underneath his right arm. Aquino explained that she proceeded to conduct a physical assessment of Joseph, including an inspection of his right extremity from his fingertips up to his shoulder. During her examination, she did not see anything which would have indicated an "infectious disease process." Specifically, Aquino did not notice a reddened or infected cut on Joseph's right hand.

Next, Dr. Alison Smith, a board-certified emergency room physician, examined Joseph. At trial, Dr. Smith recalled that Joseph told her he was having pains in his right armpit, right shoulder, and right upper arm. When Dr. Smith conducted a physical examination of Joseph, she noted that he did not have a fever and his vital signs were normal. In particular, Dr. Smith did not notice a wound on Joseph's right hand that was reddened, tender, or swollen, or which would have suggested an infection. As a result, Dr. Smith ruled out infection and did not do a "work-up" of tests for infection. Instead, Dr. Smith diagnosed Joseph's condition as a shoulder strain, prescribed pain and anti-inflammatory medications for shoulder strain, and discharged him. Finally, she instructed Joseph and his father to return to the emergency room if Joseph experienced any increased pain, numbness or weakness.

Joseph's mother, Antoinette Pantaleo (Antoinette), recounted the days which followed Joseph's release from OLRMC. Antoinette explained that she was working on November 18, 1988, when Serafino brought Joseph to the emergency room. When she returned from work, Serafino told her that everything was fine and that Joseph would feel better in a few days. Joseph complained of a fever, chills, and pain in his right arm. However, he did not vomit or have diarrhea. Antoinette testified that she did not realize that Joseph was seriously ill until he was admitted to Gottlieb Hospital on November 21, 1988.

Serafino also testified about the events which ensued over the weekend. On Saturday, Serafino noticed a redness on Joseph's chest. Joseph complained of increasing pain in his right arm. However, Joseph did not vomit, have diarrhea, chills or a fever. On Sunday, Serafino observed that the redness on Joseph's chest had extended to his face. Early Monday morning, Serafino noticed a red line going up Joseph's right arm and Joseph crying in pain. At this point, Serafino became very concerned and drove Joseph to the emergency room at Gottlieb Hospital.

After they arrived at Gottlieb Hospital on Monday, November 21, 1988, Dr. Fred Fishman, a board-certified emergency room physician, examined Joseph at approximately 6 a.m. At trial, Dr. Fishman testified that Joseph had a red streak, known as lymphangitis, emanating from his right thumb to his forearm. Joseph gave him a history of an infection on his right thumb of approximately five to six days. Dr. Fishman's examination of Joseph's thumb revealed it was reddened, swollen, and warm with crusty areas surrounding the infection and these observations were consistent with the history Joseph had given him. Dr. Fishman also drew a connection between the painful axilla, or armpit, and the ascending lymphangitis originating in the thumb. He reasoned that the tender nodes under the armpit meant that the body was trying to fight off a distal infection. After his examination, Dr. Fishman requested that Dr. Donna Hanlon, an infectious disease specialist, examine Joseph.

Dr. Hanlon began her examination at approximately 9 a.m. and initially diagnosed Joseph with streptococcal toxic shock syndrome emanating from the wound on his right thumb. At trial, Dr. Hanlon explained that streptococcal toxic shock syndrome was a rare disease entity in 1988 and that there was only one published medical article on it. After her examination, Dr. Hanlon obtained a history from Joseph. In a medical record, Dr. Hanlon wrote that Joseph stated that his right thumb was painful and red on November 16, 1988, and that he had cut his right thumb about one week prior to that date. She concluded that Joseph was an accurate historian and reasoned that "if it (the thumb) was painful and red on the 16th and again on the 21st when I saw him, it probably was also on the 18th." Dr. Hanlon also realized that the five to six day history of infection in Joseph's right thumb was not only consistent with her exam, but also with the history obtained by Dr. Fishman. Subsequently, she diagnosed Joseph as having cellulitis (an infection of the skin on his right arm), with lymphangitis (an accompanying inflammation of the lymphatic or lymph channels leading towards the lymph nodes), hypotension (shock), and renal failure (kidney failure).

Around 5 p.m. that same day, Dr. Hanlon saw Joseph again. She observed that he was conscious with a temperature of 99.8 degrees. She also noted that the pain in his armpit was more severe than she would have expected. Dr. Hanlon described Joseph as alert but intermittently confused, which was an indication of the toxic effect of the infection.

On November 22, 1988, at 4 a.m., Dr. Hanlon checked on Joseph and noted that he was alert and conscious with a temperature of 104.2 degrees, but he was confused. The next time Dr. Hanlon saw Joseph was 6 a.m. At this time, Joseph's kidneys had failed and his system was becoming very acidotic from the infection and the shock. Dr. Hanlon ordered the insertion of a catheter into his lung in order to combat the shock. At 8 a.m., Joseph was intubated to assist with his breathing. He was still conscious, although only when stimulated. Dr. Hanlon checked on Joseph again later that day and wrote a note, but did not indicate the time. She noted that Joseph was much sicker, completely dependent on the breathing machine, but still conscious. At trial, Dr. Hanlon could not comment as to whether Joseph was still conscious at 7:30 p.m. On November 23, 1988, at 5 p.m., Joseph became hypotensive, suffered a cardiac arrest and died. Dr. Hanlon's final diagnosis was streptococcal toxic shock syndrome, secondary to cellulitis lymphangitis of the right upper extremity, and acute renal failure, secondary to sepsis. She defined shock as an inadequate blood supply to the body's tissues and organs and defined toxic shock as a group of symptoms caused by a toxin which is produced by a germ.

Plaintiff called two expert witnesses, Dr. James Todd and Dr. Gary Harris. Dr. Todd, plaintiff's infectious disease expert, opined that there were signs of infection present on November 18 when Joseph was examined by Dr. Smith. He believed Joseph's thumb was red on November 18, because the Gottlieb chart indicated that Joseph had stated a history of a red, sore thumb beginning around November 16. In addition, the chart showed that Joseph had developed a tender axilla and Joseph's thumb was red on November 21. Dr. Todd also testified that if Joseph had received the appropriate antibiotics on November 18 or November 19, Joseph may have lived.

Plaintiff's emergency medical expert, Dr. Harris, explained that he believed Dr. Smith had deviated from the applicable standard of care in her treatment of Joseph for the following reasons: (1) failure to properly examine and evaluate Joseph upon his initial presentation; (2) failure to take a proper history; (3) failure to do a proper examination based upon knowledge of Joseph's history; (4) failure to diagnose infection which existed in his extremity at the time of his examination; (5) failure to treat the infection; and (6) failure to admit him to the hospital. Dr. Harris also concluded ...

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