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Brady v. McNamara

December 22, 1999


Appeal from the Circuit Court of Cook County No. 92 M3 2553 Honorable Arthur L. Janura, Judge Presiding.

The opinion of the court was delivered by: Justice Cerda

Plaintiff, Veronica Brady, as administrator of the estate of Paul B. Brady, deceased, appeals after the entry of a jury verdict in favor of defendant Thomas McNamara, M.D. This medical malpractice action was brought to recover damages for a fractured hip which delayed treatment of the true illness of Paul B. Brady. Plaintiff alleged that the damages were caused by defendant's misdiagnosis and failure to prescribe appropriate drugs for Brady's brain tumors. Defendant withdrew his affirmative defense of contributory negligence prior to the start of trial.

The issue in this case is whether the trial court committed prejudicial error in giving Illinois Pattern Jury Instructions, Civil, No. 105.08 (3d ed. 1995) (hereinafter IPI Civil 3d No. 105.08) concerning mitigation of damages for Brady's failure to follow medical instructions prior to his fall. IPI Civil 3d No. 105.08 stated in part that a doctor is not liable for damages caused by a patient's failure to follow a doctor's instructions. Defendant withdrew a proposed jury instruction for contributory negligence. We reverse and remand.


Plaintiff brought a complaint against McNamara, Alexian Brothers Medical Center, and four nurses, alleging personal injuries as a result of Brady falling and breaking his hip due to defendant's misdiagnosis and failure to prescribe appropriate drugs in September 1990. Plaintiff alleged that defendant wrongly concluded that Brady was suffering from cirrhosis of the liver (instead of cancer metastasized to the brain) and failed to administer the proper treatment. Allegedly as a result of the negligence, Brady fell while returning unsupervised from the washroom in a highly sedated state and suffered a fractured hip. The surgery on his hip delayed treatment of the true cause of the symptoms. Brady died before the complaint was filed.

Defendant raised in his answer the affirmative defense that Brady was negligent in failing to comply with defendant's orders and the hospital's instructions to seek assistance when Brady required to use the washroom or get out of bed. Defendant's affirmative defense further alleged that it was Brady's negligent act that was the sole proximate cause of the injuries suffered on September 19, 1990. The affirmative defense of contributory negligence was withdrawn prior to the start of the trial.

At trial there was evidence that on September 15, 1990, Brady went to see defendant with complaints of loss of equilibrium, unsteady gait, vomiting, and weight loss. Brady could not walk well without assistance. He reported having had lung cancer surgery in April 1990. His medical history included the drinking of six cans of beer a day and his last drink having been taken the day before.

Upon defendant's recommendation, Brady was admitted to Alexian Brothers Medical Center on September 16, 1990. Defendant's initial provisional diagnoses were alcoholic cerebellar degeneration, cirrhosis of the liver, and metastasized brain cancer. Defendant ordered various tests for Brady. Defendant ordered that Brady be assisted to the bathroom because of Brady's imbalance problem.

Although defendant ordered Valium only as needed for Brady in case the patient developed symptoms of alcohol withdrawal, hallucination, delirium tremens or disorientation, the nurses gave Brady Valium on September 16 and 17, 1990. Defendant believed that the administration of Valium was inappropriate because there was no evidence that Brady experienced loss of orientation. Defendant ordered the Valium stopped on September 18, 1990; the last time Brady received Valium was at noon. According to defendant, the nursing charts showed no physical effect of the Valium on Brady. Brady always appeared alert and oriented and never confused to defendant whenever defendant saw Brady before the fall.

Brady's wife, Catherine, testified that Brady was not disoriented and that he always was alert and coherent. The hospital records showed that Brady was alert and oriented at all times.

Brady was also given Restoril, a short-acting sleep medicine, on September 16 and 17, 1990. Defendant does not believe that Restoril affected Brady's consciousness.

On September 19, 1990, at about 2:45 a.m., Brady fell in his hospital room. Brady told his wife that he had gotten out of bed without assistance and that he had fallen upon leaving the bathroom when the bathroom door fell away. The medical chart stated that Brady was alert after he fell.

In the fall, Brady fractured his hip, and surgery was required. The report of the orthopedic surgeon who treated Brady's fracture stated that Brady denied to him any loss of consciousness or dizziness at the time of the fall.

A physician consultant who was brought into the case at some time after the fall prescribed the drug Decadron, which was used to reduce the swelling in the brain that caused Brady's loss of equilibrium.

Plaintiff's expert, Dr. Nancy McIntosh, testified that she disagreed with the admitting diagnosis of cirrhosis of the liver and that the most likely cause of Brady's loss of balance was the two tumors that were ultimately found in Brady's brain. She believed that Valium was not an appropriate medication for Brady; it caused sedation and in high doses caused loss of balance. Her opinion was that the Valium worsened Brady's symptoms. She inferred from the hospital records that Brady did not remember things from moment to moment, but there was no reference in the nursing notes prior to the fall that he was confused. The drug Decadron would decrease confusion if the confusion was partially due to brain swelling.

Dr. Daniel Brown testified as an expert for defendant that defendant met all standards of care. Defendant had ordered a CT scan of Brady's head immediately upon admission. Brown believed that Brady was able to follow instructions, that Brady did not develop any disorientation from the Valium, that the ...

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