Appeal from Circuit Court of Sangamon County No. 93L597 Honorable Jeanne E. Scott, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
On March 7, 1987, Chelsey Lambie was born six weeks premature. On March 19, 1987, after Chelsey started to suffer left congestive heart failure, defendant, Dr. Joel Schneider, operated on her to repair a patent ductus arteriosus (PDA), an abnormal opening connecting the heart to one of the blood vessels leaving it. When Schneider could not locate the PDA, he placed Gore-Tex bands around the vessels leaving Chelsey's heart to decrease the abnormally high flow of blood from Chelsey's heart to her lungs. On December 6, 1993, plaintiff Lucie Lambie, mother and next friend of Chelsey, brought a medical malpractice action against defendant. On May 5, 1998, a jury returned a verdict in favor of defendant. Plaintiff appeals, arguing the trial court erred by not giving her tendered instruction on "increased risk of harm," by refusing to instruct the jury so as to correct a misstatement of the evidence by defense counsel in opening and closing argument, and by refusing to excuse one juror for cause. We affirm.
When Chelsey was born, she was in respiratory distress and immediately came under the care of Dr. Carlos Chua, a neonatologist at the High Risk Center at St. John's Hospital in Springfield, Illinois (St. John's). Within days of her birth, Chelsey developed a heart murmur and Dr. Patricia VonBehren, a pediatric cardiologist, was consulted. VonBehren concluded Chelsey had a PDA. Both VonBehren and Chua diagnosed Chelsey as also having congestive heart failure.
After attempts to close the PDA with drugs failed, VonBehren recommended that Chelsey undergo surgery to close it. On March 19, 1987, defendant performed surgery on Chelsey to ligate the PDA. During the surgery, defendant could not find a PDA and chose to cut further into Chelsey's chest cavity to diagnose her problem. Defendant concluded Chelsey had a truncus arteriosus, a condition where the blood vessel carrying blood to the body merges with the blood vessel carrying blood to the lungs.
Defendant testified he chose to place a band on each of Chelsey's two pulmonary arteries. Dr. Arnold Strauss, the pediatric cardiologist under whose care Chelsey came when she was subsequently transported to St. Louis, testified that banding had been used where there was some abnormal shunt. It constricts the flow of blood to the lungs until such time as a problem can be repaired. VonBehren testified she was consulted during the surgery. She understood the bands to be a temporary measure, to slow down the shunt for "a short period of time." Dr. David Ott, a pediatric cardiovascular surgeon, and Dr. Thomas Spray, a cardiac surgeon at Children's Hospital in St. Louis (Children's), testified the bands were a temporary, palliative maneuver, to be used until the problem could be diagnosed and fixed. The parties presented conflicting opinions from these and other medical experts as to whether defendant was negligent in prolonging the surgery and cutting deeper into Chelsey in order to attempt a diagnosis and place the bands. After surgery, defendant consulted with all of Chelsey's treating physicians and concluded further diagnostic tests needed to be performed.
According to Dr. Kenneth Barron, a cardiovascular surgeon called by plaintiff, Chelsey was then taken to Children's for more tests. According to VonBehren, defendant did not know of the transfer until the day it occurred. According to Dr. Kenneth Barron, a cardiovascular surgeon called by plaintiff, Chelsey's condition worsened after the surgery and before she got to St. Louis. Strauss described Chelsey as critically ill when she arrived in St. Louis. Chelsey could not breathe on her own and required a ventilator. Her pulmonary and tricuspid heart valves were leaking.
Chelsey now had a severe right heart failure, whereas she was only having mild left heart failure before the surgery. Barron testified the bands caused Chelsey's right heart failure. Dr. Anne Wedemeyer, a pediatric cardiologist called by plaintiff, agreed. She testified that if defendant had just backed out of the operation when he could not find the PDA, Chelsey's left heart failure would have continued, but there would have been no right heart failure.
At Children's, a heart catheterization diagnosed Chelsey's condition as either a very abnormal PDA or an aorticopulmonary (AP) window. On March 20, 1987, Spray performed surgery to correct the abnormal PDA or AP window, and to remove the bands. Spray testified he did not remember exactly how long the bands were on, but as far as he could recall, they were on a few days. Spray testified the bands were not too tight. His notes made no mention of injury due to the bands. However, Spray testified he did not want the bands on any longer than they were on. He testified the tricuspid and pulmonary valves were leaking, but that some loss of valvular competence was normal for this situation.
Chelsey also had damage to her phrenic nerve. Strauss, Wedemeyer, and Barron testified defendant's additional dissection during the March 19, 1987, surgery increased the risk of phrenic nerve damage. Spray testified phrenic nerve damage was a well-known surgical complication that often occurred without negligence. All agreed the Springfield operation, not the later operation in St. Louis, was the likely cause of the damage.According to Wedemeyer, damage to the phrenic nerve can cause paralysis of the left diaphragm. When Chelsey's diaphragm was paralyzed, it moved upward into her chest cavity, preventing her lung from expanding properly. According to Strauss, a paralyzed diaphragm almost always requires a breathing machine, which increases the risk of infection. According to Wedemeyer, Chelsey could not be weaned off of the respirator, causing repeated respiratory infections and pneumonia. Additionally, the displaced lung caused Chelsey's esophagus and stomach to be distorted to the point that she had difficulty keeping food down. Ultimately, Chelsey had surgery in St. Louis to correct her paralyzed diaphragm.
As Chelsey got older, it became apparent that she suffered hearing loss in both ears. The parties presented conflicting testimony from medical experts on whether Chelsey's hearing loss was caused by medicines, including gentamicin, an antibiotic that can harm the inner ear. Gentamicin was not required by the March 19, 1987, surgery, but by complications arising after that surgery.
On December 6, 1993, plaintiff filed suit, alleging defendant's negligence proximately caused Chelsey to suffer unnecessary pain and to remain greatly disordered and weakened. The trial began with jury selection on April 27, 1998. Plaintiff used a peremptory strike on the morning of April 28, 1998, to excuse the first alternate juror, whose brother's open heart surgery had been performed by defendant. This alternate juror was not replaced. Defendant informed the court he would not accept a verdict by less than 12 jurors.
On April 29, 1998, juror Ronald Howell met in chambers with the parties' counsel and the trial Judge. Howell stated that defendant had performed open heart surgery on his father-in-law 17 years earlier. Howell stated his father-in-law was again having heart problems and that he learned the night before that if his father-in-law has surgery again, defendant had been selected to perform it. In response to the trial Judge's questions, Howell stated he believed he could still decide the case on its merits without feeling any bias one way or the other about the doctor. Neither counsel asked Howell any questions to determine the nature of his father-in-law's problems or the nature of his relationship with his father-in-law.
The trial Judge allowed Howell to remain on the jury, provided that, if the father-in-law did, in fact, receive surgery from defendant during the trial, the juror was to inform the court. The trial went forward, and the above medical expert testimony was heard. ...