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Firstar Bank of Illinois v. Peirce

June 30, 1999



The opinion of the court was delivered by: Justice Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

In this medical negligence case the jury returned a verdict in favor of Firstar Bank of Illinois, as guardian of Alojzy Klim, and against the doctor who delivered the child. On appeal, the doctor contends the trial court erred by allowing testimony that violated Supreme Court Rule 213(g) and by refusing to give the jury a sole proximate cause instruction. We agree. We reverse the trial court's judgment on the verdict and remand the cause for a new trial.


Sophie Klim (Sophie) became pregnant for the first time in 1981. During Sophie's pregnancy, her obstetrician, Dr. Richard Peirce (Dr. Peirce), ordered a screen of Sophie's blood. Dr. Peirce discovered her blood contained no antigens and was "Rh negative."

In cases where a pregnant woman has Rh negative blood, an obstetrician must take special precautions. Often during pregnancy, and especially in delivery, a pregnant woman's blood will mix with her fetus' blood. If the woman has Rh negative blood containing no antigens, and the fetus has Rh positive blood containing antigens, the woman's body will respond to her fetus' blood by developing antibodies to attack the Rh positive antigens. The woman becomes "Rh sensitized."

This Rh sensitization usually does not affect the woman's first pregnancy, but may have dire consequences for her subsequent pregnancies. If the woman's subsequent fetuses are Rh positive, the woman's antibodies will cross the placenta to destroy her fetus' blood. Rh sensitization often necessitates serious medical treatment, including newborn blood transfusions.

Once Rh sensitization occurs, it is irreversible. However, an obstetrician can prevent Rh sensitization with a drug called "RhoGam," administered within 72 hours after the fetus' blood mixes with the woman's blood. The dosage of RhoGam depends on the amount of fetal blood to which the woman was exposed.

Sophie's pregnancy proceeded normally until shortly before her due date. On March 7, 1982, Sophie noticed her fetus had stopped moving, and on March 8 she visited Dr. Peirce, who could not find a fetal heartbeat. On March 9, 1982, Dr. Peirce induced labor, and Sophie delivered a still-born baby boy. Dr. Peirce again ordered a screen of Sophie's blood.

In the morning of March 10, Dr. Peirce received a laboratory report which showed Sophie's blood was Rh positive. Dr. Peirce assumed the report was inaccurate and ordered another blood screen. In the evening of March 10, Dr. Peirce received a second report which again showed Sophie's blood was Rh positive. In the morning of March 11, Dr. Peirce ordered a third blood screen. Hours later, when the third report confirmed the earlier reports, Dr. Peirce realized a fetal-to-maternal hemorrhage was a possible cause of death for Sophie's baby. In other words, Dr. Peirce suspected the fetus had bled into Sophie's circulatory system and ordered a Kleinhauer-Betke test to determine the amount of fetal blood in Sophie's circulation.

This test showed 10% of her circulation was fetal blood. Sophie's fetus had died from a near-total fetal-to-maternal hemorrhage. On March 11, approximately 48 hours after Sophie's stillbirth, Dr. Peirce said he consulted with Dr. Lloyd Cook (Dr. Cook), acting director of Northwestern University's blood bank, to obtain a figure for Sophie's blood volume. Dr. Peirce's notes say, "67 cc/kg (from Dr. Cook, chief blood bank-average blood volume) ***." Dr. Peirce then devised a formula for calculating the amount of RhoGam to give Sophie. Dr. Peirce's formula indicated Sophie should receive 11 doses of RhoGam. This formula underprescribed the amount of RhoGam. Sophie actually should have received 17 doses. Sophie became Rh sensitized; then she became pregnant again.

On April 5, 1983, Sophie gave birth to her son Alojzy Klim (Alojzy). Immediately after his birth, Alojzy required a newborn blood transfusion because of Sophie's Rh sensitization. This transfusion caused a stroke. On September 11, 1996, Firstar Bank (Firstar), as guardian for Alojzy, filed a complaint for Alojzy's injuries against Dr. Peirce.

After extensive discovery and a mistrial because of a deadlocked jury on October 3, 1997, Firstar retried its case against Dr. Peirce. On January 27, 1998, the jury returned a verdict of $600,462 in favor of Firstar, and the trial court entered judgment on this verdict. Dr. Peirce filed a post-trial motion. The trial court denied this motion on June 23, 1998. This appeal followed.


This case went to the jury on two issues of negligence. One, "a failure to administer RhoGAM in the appropriate dose to Sophie P. Klim commencing on March the 11th 1982;" and two, "failure to perform a test after administering the dose to assure that [Dr. Peirce] had given the correct amount of RhoGAM."

Dr. Peirce contends trial court errors fatally infect both issues, requiring reversal and remand. To properly analyze Dr. Peirce's contentions, we have to examine each issue separately, parsing the facts and rulings that apply to each.

This approach is necessary because the jury rendered a general verdict. Neither party submitted special interrogatories on the allegations against Dr. Peirce. We can't tell what issue or issues the jury found in favor of Firstar. See Lynch v. Board of Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 433, 412 N.E.2d 447 (1980); Boll v. Chicago Park District, 249 Ill. App. 3d 952, 962, 620 N.E.2d 1082 (1993). A general verdict can be sustained for any one of several bases of liability "and will not be reversed due to the impairment of one of the theories." Luther v. Norfolk & Western Ry. Co., 272 Ill. App. 3d 16, 23-24, 649 N.E.2d 1000 (1995); See 735 ILCS 5/2-1201(d) (West 1996).

1. Sole Proximate Cause Jury Instruction

This issue relates to Dr. Peirce's alleged failure to administer the proper dose of RhoGam to Sophie. Dr. Peirce offered evidence that Northwestern University, a non-party, caused the inappropriate dosage and, therefore, her Rh sensitization. At the close of the case, he offered both paragraphs of Pattern Instruction 12.04. The trial court refused to give the instruction.

It reads:

"More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame."

"However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant." Illinois Pattern Jury Instructions, Civil No. 12.04 (3d ed. 1995) (hereinafter IPI Civil 3d 12.04).

In the Notes on Use for IPI Civil 3d 12.04 the IPI Committee said:

"The second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of third persons." IPI Civil 3d 12.04, Notes on Use.

The sole proximate cause or "empty chair" defense "*** merely focuses the attention of a properly instructed jury *** on the plaintiff's duty to prove that the defendant's conduct was a proximate cause of plaintiff's injury." Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 94, 658 N.E.2d 450 (1995).

We recently addressed this issue in McDonnell v. McPartlin, 303 Ill. App. 3d 391, 708 N.E.2d 412 (1999). In McDonnell, we emphasized the plaintiff has to prove the defendant's professional negligence: the plaintiff must establish "*** a standard of care, a deviation from that standard, and a causal connection between the deviation and the injuries sustained." McDonnell, 303 Ill. App. 3d at 394. In other words: "The element of proximate cause is an element of the plaintiff's case. The defendant is not required to plead lack of proximate cause as an affirmative defense." (Emphasis in original.) Leonardi, 168 Ill. 2d at 93-94.

"Whether the defendant is entitled to a sole proximate cause instruction depends on the evidence he presents." McDonnell, 303 Ill. App. 3d at 395. The defendant is not entitled to this instruction when the evidence merely shows his conduct was one of several causes of the injury. McDonnell, 303 Ill. App. 3d at 395. As the Supreme Court has held, "*** a sole proximate cause instruction is not appropriate unless there is evidence that the sole proximate cause (not 'a' proximate cause) of a plaintiff's injury is conduct of another person or condition." (Emphasis in original.) Holton v. Memorial Hospital, 176 Ill. 2d 95, 134, 679 N.E.2d 1202 (1997).

The record contains evidence that only Northwestern University's conduct caused the dosage problem, and consequently Sophie's sensitization.

At trial, Dr. Peirce testified he made his calculation of the RhoGam dose "in conjunction with Dr. Cook ***." Dr. Peirce said he "*** may well have made up a major part of [the formula] and discussed it with Dr. Cook ***." According to Dr. Peirce, Dr. Cook provided him with a blood volume figure of 67 cubic centimeters per kilogram.

Dr. Peirce said:

"At the time I was treating Mrs. Klim when I made my formula, I was at that point relying on advice from Dr. Cook, the chief of the Northwestern blood bank, Dr. Depp, the chief of obstetrics at Northwestern and Dr. Ennio Rossi, a hematologist at Northwestern."

Dr. Peirce testified he believed Northwestern University deviated from the standard of care when the blood bank (and Dr. Cook) supplied an erroneous blood volume figure.

Dr. Peirce's experts supported his testimony that Northwestern University caused Sophie's sensitization.

Dr. Allan Charles (Dr. Charles) testified Northwestern University deviated from the standard of care when the blood bank indicated Sophie had Rh positive blood, but failed to note a possible fetal-to-maternal hemorrhage. Dr. Charles said Dr. Peirce's formula should have yielded the correct RhoGam dose if he had used the accurate maternal blood volume figure. Dr. Charles observed the fetal-to-maternal hemorrhage here was so large, an obstetrician would need to consult the blood bank for a blood volume figure: "*** [T]hat's the kind of thing you would really have to call for some help on ...

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