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Harris Trust & Savings Bank v. Abraham-Zwirn

June 07, 2000


The opinion of the court was delivered by: Justice Wolfson

Appeal from the Circuit Court of Cook County. Honorable Leonard R. Grazian, Judge Presiding.

In this case the jury was asked to determine how and why a child became severely brain damaged and profoundly mentally retarded. The trial was long and the evidence conflicting. At the end, the jury found the child's estate and his parents did not prove their case against the doctor, nurse, and hospital charged with negligently causing the injuries. The plaintiffs now claim, among other things, the jury was wrong on the facts and a biased juror was allowed to sit. They ask for a new trial. We affirm the judgment in favor of the defendants.


The plaintiffs are Harris Trust & Savings Bank, guardian of the estate of John Peter Sartori (John Peter), and Mark and Nancy Sartori (Mark and Nancy), John Peter's parents. The defendants are Dr. Marilyn Abraham-Zwirn (Dr. Abraham-Zwirn), Kimberly Carmignani (Carmignani), and Loyola University Medical Center (Loyola).

On March 9, 1987, Nancy gave birth to John Peter 12 weeks premature. John Peter weighed only two pounds, and he suffered from respiratory distress. He was intubated, placed on a ventilator, and admitted immediately to Loyola's neonatal intensive care unit (NICU).

John Peter was diagnosed with hyaline membrane disease, a condition related to the extreme immaturity of his lungs. Later, he developed bronchopulmonary displasia, a more serious condition which required long-term artificial ventilation. John Peter remained on a ventilator until May 23, 1987.

But on July 8, 1987, John Peter experienced respiratory failure. His attending neonatologist, Dr. Christine Sajous (Dr. Sajous), changed John Peter's medication, hoping to improve his breathing. When this treatment failed, Dr. Sajous suspected John Peter had pneumonia and recommended he return to artificial ventilation. He was reintubated on July 17, 1987, and was placed on antibiotics. When this treatment also failed, Dr. Sajous ordered a tracheotomy. A tracheotomy is a procedure in which a surgeon opens a hole and places a breathing tube in the patient's trachea through the patient's neck. On July 24, 1987, John Peter received a tracheotomy.

After his surgery, John Peter received 100% supplemental oxygen, but in the NICU his oxygen saturation and carbon dioxide levels fluxuated wildly. Dr. Abraham-Zwirn, the second-year pediatric resident assigned to the NICU on July 24, ordered NICU Nurse Carmignani to increase the settings on John Peter's ventilator. These setting increases indicated John Peter's respiratory status was worsening, possibly from fluid collecting in his lungs following surgery. Because John Peter appeared slightly "puffy," Carmignani and Dr. Abraham-Zwirn discussed weighing John Peter to determine whether he had a fluid overload and agreed this procedure required caution because his tracheotomy was so recent. Ultimately, Dr. Abraham-Zwirn ordered Carmignani to weigh John Peter.

After weighing John Peter with help from another nurse, Carmignani placed him in his crib, but noticed his oxygen saturation and heart rate had fallen. Carmignani summoned the charge nurse. At 1:57 a.m. on July 25, 1987, a "Code Blue" was called when John Peter went into cardiopulmonary arrest. Cardiopulmonary resuscitation began.

A respiratory therapist, Kay Mauer, manually ventilated John Peter, while Carmignani performed chest compressions. Dr. Abraham-Zwirn unsuccessfully attempted to replace John Peter's tracheotomy tube three times and unsuccessfully attempted to intubate him once before finally establishing an effective airway at 2:07 a.m. John Peter's oxygen saturation and heart rate finally approached normal levels 13 minutes after they first dropped. Later that morning, Dr. Abraham-Zwirn notified Nancy and Mark about John Peter's cardiopulmonary arrest.

In a September 23, 1987, letter, Dr. Mary Elaine Patrinos (Dr. Patrinos), John Peter's other attending neonatologist, wrote, "Post-op the child was inadvertently decannulated resulting in a primary resp. with subsequent cardiac arrest." Decannulation occurs when a tracheotomy tube shifts from the hole in the trachea, and the patient's airway becomes obscured.

Mark noticed several physical changes in John Peter following his arrest, and a Loyola doctor told Mark that John Peter might be mentally retarded as a result of the incident. John Peter remained in the NICU through September 1987.

As John Peter grew older, the Sartoris learned he had severe brain damage and was profoundly mentally retarded. When John Peter was five years-old, the plaintiffs filed a medical malpractice complaint against the defendants. The negligence allegations in the complaint related to weighing and resuscitating John Peter. The case proceeded to trial.

After a month-long trial, which included testimony from more than 25 witnesses, the jury returned a verdict in favor of the defendants, and the court entered judgment on this verdict on July 17, 1998. The plaintiffs filed a post-trial motion. The court denied this motion on March 9, 1999. This appeal followed.


On appeal, the plaintiffs raise five issues. We will address them in turn.

1. Juror Bias

The plaintiffs contend the trial court abused its discretion when it denied their motion to discharge a juror for cause.

On June 15, 1998, the parties completed jury selection. But the following day the plaintiffs asked the court to reopen the final venire panel, so they could exercise their final peremptory challenge for a juror they previously had accepted. The court granted the plaintiffs' request, necessitating another round of jury selection to replace the excused juror. The court seated a panel of four venirepersons, which included Cathy Mulroy (Mulroy).

During voir dire, Mulroy, an in-house insurance defense attorney, revealed she had used a Loyola doctor as an expert witness "half a dozen [times] or so." The defendants' attorney asked Mulroy, "Is there anything you think either [party] would want to know that would affect your ability to serve as a fair and impartial juror in this case?" She answered, "No." The plaintiffs' attorney then questioned Mulroy about her relationship with Loyola:

"Q: I know you have told us, and I may want to go into that in a moment, that you do retain or do employ a doctor from Loyola as an expert. But outside of that, do you have any association or relationship with Loyola through friends, relatives, family, anything like that?

A: The medical school?

Q: The hospital, the medical school, the neonatal intensive care unit?

A: Nothing like that."

After Mulroy's repeated assurances she could be fair despite her defense-oriented experience, the plaintiffs' attorney announced he was satisfied "Mullroy [sic] will do her best to be a fair and impartial juror." The court placed Mulroy on the jury, and the parties chose two alternate jurors.

The following day, the plaintiffs again asked the court to reopen the final venire panel and excuse Mulroy for cause because she had failed to reveal she had received her undergraduate and law degrees from Loyola University. The court denied the plaintiffs' request, saying: "I would say the school she went to has nothing to do with it." But the court added:

"*** I am sorry to say under these circumstances I cannot consider that as a challenge for cause. Your motion is denied. And I really don't like to do that, because we have a plaintiff here who is a defenseless, completely defenseless child. And if I had discretion on this type of situation, I most certainly would have excused this juror on the court's own motion."

We have carefully examined the record of the questions asked of Mulroy before she was sworn in as a juror. The plaintiffs' attorney never asked her what law school she attended. And when he asked her about associations or relationships with Loyola, she responded: "The medical school?" That answer did not trigger the attorney's curiosity about Mulroy's non-medical connections with Loyola. We find Mulroy truthfully answered each question asked of her. If the plaintiffs' attorney wanted to know more, ...

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