Appeal from Circuit Court of Macon County No. 97L97 Honorable James A. Hendrian, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Knecht
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Plaintiffs, Rana McArthur, individually and as special administratrix of the estate of Baby Boy King, deceased, appeal from an order of the circuit court of Macon County granting summary judgment to defendant, St. Mary's Hospital of Decatur (hospital), as to paragraphs 6(b) through 6(h) of count V of her third-amended complaint. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.
The facts necessary to our resolution of this appeal are not in dispute. Dr. William Wagner provided Rana McArthur's prenatal care at the hospital's prenatal clinic. On September 18, 1995, in the twentieth week of the pregnancy, Dr. Wagner ordered a complete pregnancy ultrasound examination. A hospital-employed technician performed the examination. Permanent recorded images were made of various anatomical structures. These images were reviewed and interpreted by Dr. J. Ambrosini, a radi-ologist who contracted with the hospital to provide radiological services. Dr. Ambrosini testified at his deposition it was the policy of both the hospital and Dr. Ambrosini's medical group that the hospital's technician had the responsibility to measure the cerebral ventricles and interpret those measurements. The technician who performed the examination for plaintiff found nothing abnormal about the ventricles. Plaintiffs were aware a hospital technician took the sonogram but the ultrasound report indicates it was interpreted by Dr. Ambrosini. Dr. Ambrosini did not perform his own independent assessment of the ventricles.
Plaintiffs allege the cerebral ventricles had begun to dilate or fill with an abnormal amount of fluid by the time of the ultrasound. When the cerebral ventricles fill with fluid, they have measurements larger than normal for the gestational age in question. The filling of the cerebral ventricles marks the beginning of the development of hydrocephalus, a condition characterized by an enlarged head on the baby. The hydrocephalus went undiagnosed and continued to develop without the knowledge of Dr. Wagner.
On January 7, 1996, plaintiff mother experienced moderate contractions and went to the hospital to determine whether she was in labor. Apparently it was a false labor and she was sent home. While in the hospital, however, a sonogram was taken by Dr. L. Walton, the obstetrician on call. Dr. Walton indicated the baby was in a breech position but stated nothing more.
Plaintiff mother returned to the hospital on January 18 to deliver her baby. Dr. Wagner ordered a flat plate X ray to determine whether the baby was still in a breech position. The X ray was taken and developed by hospital employees. Dr. Wagner testified he was informed by a nurse the X rays indicated the baby was still in a breech position. The X-ray report was made the next day after the radiologist, Dr. T. Ferry, read the X rays. Dr. Wagner testified he first saw the X-ray report the day after delivery.
Dr. Wagner spoke with plaintiff mother and elected to do a vaginal delivery instead of a cesarean-section delivery. During the delivery the baby's legs, trunk, and shoulders were delivered without incident but, because of the abnormally large size of the baby's head caused by the hydrocephalus, the head became trapped in the birth canal causing the umbilical cord to compress, and the baby died. Both Dr. Wagner and plaintiff mother testified this was the first time either was aware hydrocephalus was present.
Plaintiffs brought suit against the hospital and several other defendants on May 23, 1997. The only allegation against the hospital in the original complaint was that on or about January 7, 1996, it "[f]ailed to implement and/or enforce a policy requiring a permanent radiographic image of all ultrasound sonogram examinations be maintained." The allegations against other defendants included the failure to correctly read the sonograms and X rays taken and the failure to diagnose the hydrocephalus from which Baby Boy King suffered. A first-amended complaint, with the same allegation against the hospital, was filed on August 5, 1997. A second-amended complaint, again with the same sole allegation against the hospital, was filed on August 25, 1997.
Discovery proceeded among the parties. At the February 1998 deposition of Dr. Ambrosini, plaintiffs discovered Dr. Ambrosini never evaluated the cerebral ventricles, but he claimed a hospital technician had that responsibility. That same month the deposition of Dr. Ferry was taken, and plaintiff learned that, although Dr. Ferry dictated a report containing his interpretation of the X ray taken immediately prior to birth, he did not actually see the film until the next day.
On April 2, 1998, plaintiffs moved for leave to file the third-amended complaint on April 2, 1998. Among other things, this complaint added seven new allegations against the hospital:
"(b) Acting by and through its employee, Connie Lanham, failed to properly read and/ or interpret the ultrasound performed on September 18, 1995;
(c) Acting by and through its employee, Connie Lanham, failed to appreciate and/ or document the fetus' enlarged ventricles on September 18, 1995;
(d) Permitted and/or implemented a policy, practice, guideline[,] or protocol which did not require a properly qualified physician to interpret and/or access the cerebral ventricles for congenital ...