IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS SECOND DIVISION
September 30, 1999
DIANA SUTTLE, A MINOR, BY AND THROUGH THE CENTRAL TRUST BANK, DULY APPOINTED CONSERVATOR OF THE MINOR'S ESTATE,
PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
LAKE FOREST HOSPITAL,
DEFENDANT-APPELLEE AND CROSS-APPELLANT.
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 96-L-6244 THE HONORABLE MICHAEL J. KELLY, JUDGE PRESIDING.
The opinion of the court was delivered by: Presiding Justice Cousins
This appeal concerns a medical malpractice action brought on behalf of plaintiff, Diana Suttle, a minor, by and through the Central Trust Bank. Therein, plaintiff sought recovery from defendant, Lake Forest Hospital, for severe and permanent damages allegedly sustained at or around the time of her birth due to the negligence of hospital personnel. Following trial, a jury returned a general verdict in plaintiff's favor and awarded damages in the amount of $10,944,000. The award was subsequently reduced nunc pro tunc to $9,644,000 as a result of a settlement agreement entered into between plaintiff and prior defendants. Thereafter, the trial court entered judgment non obstante veredicto (n.o.v.) upon defendant's posttrial motion, finding that plaintiff failed to prove the existence of proximate cause as to any of her counts alleging negligence. The trial court further granted defendant's alternate motion for a new trial, finding that unfair prejudice would justify a new trial in the event this court reversed, set aside or vacated the aforementioned ruling. Plaintiff appeals, contending that the trial court erred: (1) in entering judgment n.o.v. in favor of the defendant hospital; and (2) in finding reversible prejudicial error that would, in the alternative, compel a new trial on liability and damages. Defendant, in its "conditional" cross-appeal, contends that if the trial court had not properly entered judgment n.o.v., or in the alternative, ordered a new trial, a remittitur of the judgment would be compelled.
For the reasons that follow, we reverse and remand for new trial.
Cynthia Suttle was admitted as a patient to Lake Forest Hospital for the birth of her first baby on August 28, 1986. Ms. Suttle's obstetrician, Dr. Anthony Greis, examined Ms. Suttle at or around 9:17 a.m., observing bright red vaginal bleeding. He immediately ordered a cesarean section, as he knew that there was fetal distress and he suspected that Ms. Suttle was bleeding as a result of a placental abruption, which is the premature detachment of a normally situated placenta. At or around 9:35 a.m., Diana Suttle was born. After delivery, Dr. Greis removed the placenta and looked at it for an inherent blood clot and evidence of abruption. Finding neither, he sent the placenta to the hospital's pathology laboratory for analysis without giving a description of the placenta to any hospital personnel.
The pathology report, which was reduced to typewritten form and placed in Diana's medical record two days after her birth, showed that there was a velamentous insertion of the umbilical cord into the placenta; meaning, the umbilical cord had inserted itself into the membranes of the placenta rather than directly into the placenta itself. The report further indicated that there had been a fetal bleed, or rupture, of one of the blood vessels involved in the velamentously inserted umbilical cord. There was no indication of an abruption or any other abnormalities of the placenta; therefore, the pathologist indicated it was reasonable to conclude that the vaginal bleeding observed by Dr. Greis prior to Diana's birth was Diana's blood, as opposed to Ms. Suttle's.
Pediatrician Dr. Edwin Salter and nurse Kimberly Mills provided the initial treatment to Diana in the operating room after her birth. Neither was aware of the abnormality of the placenta. Diana's Apgar scores were normal, but since she was having continued difficulty breathing, at or around 9:45 a.m. nurse Mills took Diana to the hospital's intermediate, or level 2, perinatal care nursery for diagnosis and continued treatment. Dr. Salter consulted with transport team personnel at Evanston Hospital's intensive, or level 3, perinatal care nursery and gave the transport team all of the information he had available to him concerning Diana, who was diagnosed as suffering from respiratory distress syndrome.
Dr. Salter called Evanston Hospital to request a transfer for Diana sometime between 10:40 a.m. and 11 a.m. Evanston Hospital's transport team arrived between 1:30 p.m. and 1:45 p.m. At no time prior to the transport team's arrival was a blood pressure for Diana ordered or taken. Rather, the transport team first took Diana's blood pressure after arriving to Lake Forest Hospital, finding it to be below normal. As a result of Diana's blood pressure readings, the transport team immediately started a blood transfusion.
Diana was transported to Evanston Hospital's level 3 nursery, where she remained until September 16, 1986. While at Evanston Hospital, Diana was treated for circulatory, liver and kidney problems resulting from the substantial blood loss that occurred before her delivery and until the first blood transfusion. The nursery personnel at Evanston Hospital further noted that Diana exhibited problems with her tone, sucking reflex and lack of head circumference growth.
Plaintiff filed her original medical malpractice action on January 3, 1989. The initial complaint was voluntarily dismissed by plaintiff after the circuit court of Cook County transferred the action to Lake County. Plaintiff then refiled her action in Cook County on July 6, 1990. The circuit court of Cook County granted motions for summary judgment as to the refiled action on February 24, 1997, as a settlement agreement had been entered into between plaintiff and the named defendants, except Lake Forest Hospital. Plaintiff filed her second amended complaint on October 29, 1996, against the hospital only. The allegations of that complaint were repeated in a reordered third amended complaint filed on March 25, 1997. It is this third amended complaint from which the present action arises.
The two-count third amended complaint alleged that, at the time of her birth, Diana was suffering from hypovolemic shock caused by a reduction in volume of blood that was neither diagnosed nor treated by Diana's treating physician or the nurses at Lake Forest Hospital. More specifically, count I alleged that, because the hospital failed to record a description of Diana's placenta in her medical chart in violation of section 250.1830(h)(2)(B) of the Illinois Administrative Code (77 Ill. Adm. Code §250.1830(h)(2)(B) (1996)) *fn1 , the hospital was negligent. Count II asserted that the hospital was negligent in that it failed "to provide any suitable inserviced infant blood pressure equipment" and that it failed "to monitor [Diana's] blood pressure while she was a Level 2 nursery patient." Both counts further alleged that these negligent acts "contributed to the delay in the diagnosis of [Diana's] acute anemia and as a proximate result, [Diana] has suffered extreme and permanent neurologic and other damage which has resulted in great and permanent disability."
A jury trial was commenced on April 30, 1997. Following a two-week trial, wherein the testimony of 27 witnesses was presented, the jury returned a general verdict of $10,944,000 in favor of plaintiff and against defendant. The trial court entered judgment thereon on May 14, 1997. By an order dated May 19, 1997, nunc pro tunc May 16, 1997, the trial court reduced the verdict and judgment entered against Lake Forest Hospital to $9,644,000 based upon a settlement agreement in the amount of $1,300,000 that had been entered into between plaintiff and prior defendants on February 24, 1997. Thereafter, on June 27, 1997, Lake Forest Hospital moved the trial court to set aside the verdict and (1) enter judgment n.o.v. in favor of defendant and against plaintiff; or (2) in the alternative, to grant defendant a new trial on all issues; or (3) in the further alternative, to enter an order of remittitur against the plaintiff in the amount of $6 million.
The trial court granted Lake Forest Hospital's posttrial motion for judgment n.o.v. on August 26, 1997. In its order, the court stated that it found persuasive defendant's argument that the plaintiff had failed to prove that any negligence of the defendant proximately caused Diana's injuries, explaining that "[e]ven if the evidence here, when viewed under the Pedrick standard, could arguably establish the negligence of the defendant hospital personnel, it does not establish the necessary link between that negligence and minor plaintiff's injuries." See Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). Moreover, although the lower court denied defendant's request for a remittitur of the damages award, the court alternatively granted Lake Forest Hospital's posttrial motion for a new trial, finding:
"Of all the unfairness described, one issue justifies, in the court's mind's eye, a new trial, in the event a higher court differs with the court's ruling above [granting judgment n.o.v. in defendant's favor]. That is the unfair prejudice caused by the plaintiff's suggesting to the jury, without any evidence to support the inference, a possible cover-up by the hospital in its placing the word 'placenta' upon the plaintiff's medical chart at some unknown time after her birth. Once that seed was planted, in the course of the trial as this court witnessed it, the damage could not be undone." Judgment was entered on the order on September 12, 1997. Plaintiff and defendant timely filed their notices of appeal on September 19, 1997, and September 29, 1997, respectively.
Plaintiff first contends that the trial court erred in entering judgment n.o.v. in favor of Lake Forest Hospital. Specifically, plaintiff avers that the evidence relating to defendant's breaches of the standard of care and proximate cause overwhelmingly supported the jury's verdict in plaintiff's favor. The hospital, however, counters that the lower court correctly ruled in its favor since plaintiff failed to establish that Lake Forest Hospital deviated from the standard of care in its treatment of plaintiff and that such a deviation proximately caused plaintiff's injuries.
According to Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967), judgments n.o.v. should be entered only where "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand." Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14; see also Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d 508 (1992). "In ruling on a motion for a judgment n.o.v., a court does not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather it may only consider the evidence, and any inferences therefrom, in the light most favorable to the party resisting the motion." Maple, 151 Ill. 2d at 453, 603 N.E.2d at 512. A motion for judgment n.o.v. presents a question of law and will be granted only if there is a total failure of lack of evidence to prove an essential element of the plaintiff's case. Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 972, 691 N.E.2d 1, 4 (1997); see also Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665 (1942). As such, the court has no right to enter a judgment n.o.v. if there is any evidence demonstrating a substantial factual dispute, or where the assessment of credibility of witnesses or the determination regarding conflicting evidence is decisive to the outcome. Lee v. Grand Trunk Western R.R. Co., 143 Ill. App. 3d 500, 509, 492 N.E.2d 1364, 1372 (1986); Maple, 151 Ill. 2d at 453, 603 N.E.2d at 512.
In a medical malpractice action, as alleged by plaintiff in the present dispute, Illinois law mandates that plaintiff prove: (1) the proper standard of care by which to measure the defendant's conduct, (2) a negligent breach of the standard of care, and (3) resulting injury proximately caused by the defendant's lack of skill or care. Higgens v. House, 288 Ill. App. 3d 543, 546, 680 N.E.2d 1089, 1092 (1997). Normally, laypersons are not qualified to evaluate professional medical conduct (Addison v. Whittenberg, 124 Ill. 2d 287, 297, 529 N.E.2d 552, 556 (1988)); therefore, it is the plaintiff's duty to present expert testimony that will establish the applicable standard of care, a deviation from the standard, and the resulting injury to the plaintiff in order to establish a prima facie case of medical negligence. Wodziak v. Kash, 278 Ill. App. 3d 901, 911, 663 N.E.2d 138, 145 (1996); Higgens, 288 Ill. App. 3d at 546, 680 N.E.2d at 1092.
In the case sub judice, plaintiff presented evidence establishing that the standard of care required Lake Forest Hospital to have in place policies and procedures for monitoring the blood pressure of distressed newborns in its level 2 nursery. Not only was it undisputed that Lake Forest Hospital had no policies or procedures in place requiring the monitoring of the blood pressure of newborns, there was expert testimony that Lake Forest Hospital violated the standard of care for level 2 hospitals in the Northeast Region of Illinois by not recognizing that Diana was hypotensive (meaning, "characterized by low blood pressure or causing reduction in blood pressure") because her blood pressure was not monitored. Although the hospital countered this testimony with evidence of its own that it fully complied with the Illinois Administrative Code (Code) (77 Ill. Adm. Code §250.1830(h)(2)(B) (1996)) and the accepted standard of care within the medical community (see Johnson v. St. Bernard Hospital, 79 Ill. App. 3d 709, 718, 399 N.E.2d 198, 205 (1979)), the weight to be given to medical expert testimony is for the trier of fact to determine. Topp v. Logan, 197 Ill. App. 3d 285, 298, 554 N.E.2d 454, 463 (1990). Where the evidence is conflicting, as it is in the instant case, it is within the jury's province to resolve the conflict. Topp, 197 Ill. App. 3d at 298, 554 N.E.2d at 463.
In our view, defendant's contentions to the trial court and on review regarding evidence of a standard of care violation concern contested factual issues that the jury ultimately resolved by finding in plaintiff's favor. Regardless of the jury's determination, the lower court held that it found persuasive defendant's argument that the plaintiff had failed to prove that any negligence of the defendant proximately caused Diana's injuries, explaining that "[e]ven if the evidence here, when viewed under the Pedrick standard, could arguably establish the negligence of the defendant hospital personnel, it does not establish the necessary link between that negligence and minor plaintiff's injuries." Unquestionably, however, issues involving proximate cause are fact specific and therefore uniquely for the jury's determination. Holton v. Memorial Hospital, 176 Ill. 2d 95, 107, 679 N.E.2d 1202, 1207 (1997).
"When a plaintiff comes to a hospital already injured, *** or has an existing undiagnosed medical condition, *** and while in the care of the hospital is negligently treated, the question of whether the defendant's negligent treatment is a proximate cause of plaintiff's ultimate injury is ordinarily one of fact for the jury." Holton, 176 Ill. 2d at 107, 679 N.E.2d at 1207. See also Borowski v. Von Solbrig, 60 Ill. 2d 418, 328 N.E.2d 301 (1975).
Here, there was explicit expert testimony, to a reasonable degree of medical certainty, that the lack of an assessment of Diana's blood pressure led to delayed diagnosis that was one of the proximate causes of her current problems, including her neurological injuries. Defendant, however, contends that, because Dr. Salter testified that his treatment of Ms. Suttle would have been the same regardless of whether he was aware of the velamentous insertion, plaintiff failed to prove the existence of proximate cause. In support, defendant cites Gill v. Foster, 157 Ill. 2d 304, 626 N.E.2d 190 (1993), where summary judgment was entered in favor of the defendant hospital despite the failure of a nurse to notify a physician that a patient being discharged from the hospital complained of chest pains. Gill held that summary judgment was proper because there was evidence that the physician was already aware of the patient's complaints, but instead decided that such complaints were insignificant; therefore, the nurse's breach in failing to inform the physician of the patient's complaints did not proximately cause the delay in the correct diagnosis of plaintiff's condition. Gill, 157 Ill. 2d at 311, 626 N.E.2d at 193.
Gill is inapposite to the case at bar. The facts in that case showed that there was no indication that the doctor, who was aware of his patient's complaint and had decided that it was not significant, would have done anything differently had the nurse repeated the patient's complaint to the doctor. In contrast, there is testimony in the instant case that Dr. Salter diagnosed Diana as suffering from respiratory distress syndrome, rather than hypovolemic shock, because he was unaware of Ms. Suttle's velamentous insertion. It is undisputed that evidence which shows to a reasonable degree of certainty that negligent delay in diagnosis or treatment lessened the effectiveness of treatment is sufficient to establish proximate cause. Holton, 176 Ill. 2d at 114-15, 679 N.E.2d at 1211.
"To the extent a plaintiff's chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant's malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery." Holton, 176 Ill. 2d at 119, 679 N.E.2d at 1213.
Unlike the situation in Gill, whether Dr. Salter's treatment of Diana would have remained the same had any of the hospital personnel informed him of Ms. Suttle's condition was a question of fact for the jury to determine. Holton, 176 Ill. 2d at 107, 679 N.E.2d at 1207.
After considering the evidence in the light most favorable to the plaintiff, we do not believe that the evidence so overwhelmingly favors defendant that no contrary verdict to defendant could ever stand. Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14. Thus, it is our view that the trial court erred in entering judgment n.o.v. in favor of Lake Forest Hospital (Holton, 176 Ill. 2d at 109, 679 N.E.2d at 1208), particularly where issues regarding standard of care and proximate cause are questions of fact properly to be decided by the jury (see Aguilera, 293 Ill. App. 3d at 971, 691 N.E.2d at 4).
Plaintiff next contends that the trial court erred in finding reversible prejudicial error that would, in the alternative, compel a new trial on liability and damages. Specifically, plaintiff argues that any Conclusion the jury may have reached regarding a possible cover-up by the hospital in placing the word "placenta" upon Diana's medical record at some unknown time after her birth was based on undisputed evidence. Defendant, however, contends that the undisclosed testimony of nurse Mills, as well as the plaintiff's attorney's impermissible use of that testimony, irreparably harmed Lake Forest Hospital thereby depriving it of a fair trial and affecting the jury's verdict.
A court's ruling on a motion for a new trial will not be reversed except in those instances where it is affirmatively shown that it clearly abused its discretion. Heeg v. Jewel Cos., 232 Ill. App. 3d 75, 81, 596 N.E.2d 765, 770 (1992); Maple, 151 Ill. 2d at 455, 603 N.E.2d at 513. In determining whether the trial court abused its discretion, the reviewing court should consider whether the jury's verdict was supported by the evidence and whether the losing party was denied a fair trial. Maple, 151 Ill. 2d at 455, 603 N.E.2d at 513. The lower court has the benefit of the previous observation of the appearance of the witnesses, their manner in testifying, and all of the circumstances aiding in the determination of credibility. Maple, 151 Ill. 2d at 456, 603 N.E.2d at 513. As such, a reviewing court will not reverse a trial court's grant of a new trial merely because it would have come to a different Conclusion on the same facts. Lagoni v. Holiday Inn Midway, 262 Ill. App. 3d 1020, 1028, 635 N.E.2d 622, 628 (1994).
In the instant case, nurse Mills's evidence deposition was taken in Kentucky on November 7, 1996. There, she testified that one of her responsibilities as a delivery nurse was to provide a description of the placenta either in a baby's chart or directly to a nursery nurse. When asked whether she had filled in a description on Diana's medical chart on August 28, 1996, nurse Mills responded, "I don't recall." In response to a question regarding what nurse Mills' testimony would be at trial, plaintiff, in her answer to defendant's Rule 213 (166 Ill. 2d R. 213) interrogatories, stated that nurse Mills would testify that "[s]he did not describe the placenta in the newborn record because she did not have such a description." Based on nurse Mills' evidence deposition testimony, Lake Forest Hospital asserts that it informed the jury during its opening statement that nurse Mills knew there had to be a description of the placenta on the newborn chart and that she wrote the word "placenta" on Diana's medical chart, only leaving a blank after it because a description was not given by Dr. Salter.
During trial, nurse Mills testified that she had never been instructed to obtain a description of the placenta and record it in the newborn chart. She indicated that the word "placenta" was not on the chart when she filed the newborn record and left the level 2 nursery on August 28, 1986. And, she denied that the word written on the chart was in her handwriting. Defendant immediately objected and a sidebar was held wherein defendant moved for a mistrial, arguing that plaintiff did not supplement her answer to defendant's Rule 213 interrogatories describing nurse Mills' testimony with the new information that she did not write the word "placenta" on Diana's medical chart, in violation of Supreme Court Rule 213(i) (166 Ill. 2d R. 213(i)). *fn2 The trial court denied defendant's motion; however, it admonished plaintiff not to allow an inference to surface that Diana's medical record had been altered by Lake Forest Hospital.
Despite the admonishment, defendant's expert, Dr. John Payton, was asked by plaintiff's attorney to assume that the word "placenta" was not on the medical chart on the date in question. Defendant again moved for a mistrial; its motion was denied. As such, after questioning, Dr. Payton ultimately agreed that if the assumption were true, Lake Forest would have had no mechanism for complying with section 250.1830(h)(2)(B) of the Code (77 Ill. Adm. Code §250.1830(h)(2)(B) (1996)).
Following the close of evidence and immediately prior to closing argument, the lower court ruled in chambers that plaintiff could not make any inference in her closing that Lake Forest Hospital "in some way attempted to backtrack, [or] cover its butt" by placing the word "placenta" on Diana's medical chart at some unknown time after her birth. The court went on to note that "I will declare a mistrial if you do because it will be irreparable." Again, despite this admonishment, plaintiff continually referred to nurse Mills as "the hero" in this case, specifically stating, "I thought the hero in our case was Kim Mills, she changed the case entirely. It was going like this and all of a sudden it changed."
Plaintiff contends that the description of nurse Mills as a "hero" in her closing argument was proper because (1) use of the phrase in closing was not objected to by defense counsel and (2) the adjective accurately described nurse Mills' testimony as it was both truthful and consistent. We disagree. Although we acknowledge the general rule that in order to preserve an issue for appeal, it must be objected to at trial and raised in a written posttrial motion (People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129 (1988)); the rule of waiver is a limitation on the parties and not on the courts. People v. Hoskins, 101 Ill. 2d 209, 219, 461 N.E.2d 941, 946 (1984). A reviewing court may ignore the waiver rule in order to achieve a just result if the evidence is closely balanced, or if the error is one of such a magnitude that the accused is denied a fair and impartial trial. Enoch, 122 Ill. 2d at 199, 522 N.E.2d at 1136; Hoskins, 101 Ill. 2d at 219, 461 N.E.2d at 946.
Under the facts of the case at bar, it is our view that unfair prejudice occurred as a result of plaintiff's impermissible suggestions to the jury that there existed a possible cover-up by the hospital, without any evidence to support the inference. Thus, plaintiff's contentions on review regarding the truthfulness of nurse Mills' testimony and the "appropriate inferences" resulting therefrom are unavailing. Although it is an abuse of discretion for the trial court to substitute its judgment for that of the jury by granting a new trial where the evidence supports the verdict (Lagoni, 262 Ill. App. 2d at 1028-29, 635 N.E.2d at 628), in the instant case, we agree that reversible prejudicial trial error occurred thereby denying defendant of a fair trial, as was indicated by the trial court in its alternate ruling to defendant's posttrial motion.
For the foregoing reasons, we reverse the decision of the lower court and remand the case for a new trial. As such, it is unnecessary to address defendant's cross-appeal regarding remittitur of the damages award.
Reversed and remanded.
GORDON and McNULTY, JJ., concur.