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Adams v. Family Planning Associates Medical Group

June 30, 2000


The opinion of the court was delivered by: Justice Quinn

Appeal from the Circuit Court of Cook County Honorable Leonard L. Levin, Judge Presiding.

Plaintiff, Dianne Adams, appeals from the trial court's denial of her motion for a new trial, following a jury verdict in favor of defendants.

Plaintiff brought this medical malpractice/wrongful death action to recover damages for the death of her 13-year-old daughter, Deanna Bell, following an abortion under general anesthesia. At trial, plaintiff pursued various negligence claims against the following five defendants: (1) the corporation operating the clinic where the abortion was performed (Family Planning Associates Medical Group, Ltd.) (hereinafter FPA-Chicago), (2) the California corporation that provides management services to the Clinic (Family Planning Associates Medical Group, Inc.) (hereinafter FPA-California), (3) the physician who performed the abortion and who is FPA-Chicago's on-site medical director and part owner (Dr. Lichtenberg), (4) the nonresident owner of FPA-California and part owner of FPA-Chicago (Dr. Allred), and (5) the certified registered nurse anesthetist who provided the general anesthesia for the abortion (CRNA Goode).

On appeal, plaintiff asserts that the trial court erred (1) in refusing to instruct the jury regarding res ipsa loquitur and dismissing the counts of the complaint based on that theory; (2) in refusing to instruct the jury that it could consider defendants' internal policies and procedures as evidence of the standard of care; (3) by refusing to allow evidence of the precharting of Deanna Bell's vital signs; (4) in excluding plaintiff's experts' testimony that defendants' expert's research was invalid and biased; (5) in refusing to allow impeachment of defendant Goode by his discovery deposition; and (6) in excluding evidence of defendants' "assembly line" approach to general anesthesia abortion procedures.

For the following reasons, the order of the circuit court denying plaintiff's motion for a new trial is reversed and the cause remanded to the circuit court.

Deanna Bell was 13 years old at the time of her death. She was approximately 20.5 weeks pregnant and had arranged to have an abortion at FPA-Chicago's Elston Avenue facility on September 3-5, 1992. The abortion procedure used for such second-trimester abortions is called a "Dilation and Extraction" or "D&E," and is performed over the course of three days. On the first and second days, objects called laminaria are placed into the patient's cervix to dilate it. On the third day of the procedure, the actual extraction procedure is performed.

On September 3, 1992, Bell went to the Elston Avenue clinic, where she received and filled out informational and consent forms. The D&E procedure began that same day with the insertion of certain dilating agents (laminaria and Dilapan) into Bell's cervix. Bell was then instructed to return the next day for additional dilation procedures.

On September 4, Bell returned to the Elston Avenue clinic to have additional laminaria inserted by a nurse practitioner. However, the nurse practitioner was unable to remove the laminaria because the dilating devices were too tight, Bell's cervix was immature, and Bell was unable to cooperate by lying still. Bell was sent to the Washington Boulevard facility, where Dr. Lichtenberg was working that day, to have the procedure performed under general anesthesia. In an approximately 20-minute procedure, Dr. Lichtenberg removed the laminaria that had been inserted the day before and inserted new ones. Certified registered nurse anesthetist Larry Hill administered the anesthesia for the procedure.

Bell was given 150 milligrams (mg) of Brevital as an induction dose and three subsequent maintenance doses of 100 mg, 100 mg, and 50 mg. Brevital is a fast-acting barbiturate. Recommended doses, according to the medical literature, for a patient of Bell's weight would have been 53 mg to 70 mg as an induction dose and subsequent maintenance doses of 20 mg to 40 mg every four to seven minutes. In addition to sedating the patient, Brevital also depresses respiration. Thus, during the procedure, CRNA Hill also administered supplemental oxygen to Bell. Bell was told to return to the Elston Avenue clinic at 6:30 a.m. the following day to complete the D&E procedure.

Bell and her mother, plaintiff Adams, returned to the Elston Avenue clinic on September 5. Bell was given anesthesia at 7:40 a.m. Dr. Lichtenberg performed the procedure and CRNA Goode administered the anesthesia.

Before giving anesthesia to Bell, CRNA Goode reviewed her chart, including the anesthesia record from the previous day. The chart recorded Bell's age, weight, the procedure that was done, the anesthetic given, and Bell's vital signs both before and during the procedure. After reviewing the chart, CRNA Goode introduced himself to Bell and made a pre-anesthesia assessment. CRNA Goode decided to use a higher level of anesthesia than was used the day before because Bell appeared nervous and because the extraction procedure is more painful than the insertion and removal of laminaria.

During the procedure, CRNA Goode administered 200 mg of Brevital as an induction dose and subsequent maintenance doses totaling 200 mg over the course of the 11-minute procedure. CRNA Goode administered supplemental oxygen only by waving an oxygen mask near Bell's face. A pulse oximeter attached to Bell's finger registered that she had a blood oxygen saturation of 97% throughout the procedure, which is within the normal range. Bell breathed spontaneously throughout the procedure and her blood pressure was steady. At the conclusion of the procedure, Dr. Lichtenberg noted on an a health maintenance organization form that Bell's abortion was uneventful, then he left the room to prepare for the next patient's procedure.

Bell was disconnected from the monitoring equipment and CRNA Goode and a medical assistant, Elizabeth Sturm, placed Bell on a gurney to be transferred from the operating room to the recovery room. While Sturm was referred to as a medical assistant, she had never received any type of formal medical education. CRNA Goode placed his hand next to Bell's mouth so he could feel her breath during the transfer. CRNA Goode testified that he saw Bell's chest moving, and he felt and saw that Bell was breathing spontaneously and smoothly. After Bell was in the recovery room, Sturm put a pulse oximeter on Bell's finger and a blood pressure cuff on Bell's arm, then CRNA Goode went into another operating room.

Before obtaining a reading from either of Bell's monitoring devices in the recovery room, Sturm began to write on Bell's medical chart the vital signs Sturm expected to find, rather than Bell's actual vital signs. This practice is called "precharting." While Sturm was precharting, the pulse oximeter beeped, indicating that it was not getting a reading. Sturm removed the device from Bell's finger and checked its operation by making sure the light inside the device was on. Sturm then placed the device on another of Bell's fingers, but still did not receive a reading. Sturm looked at Bell's appearance for evidence of a problem, but she noticed only that Bell was "a black girl." When Sturm was still unable to get a reading on the pulse oximeter, she summoned the nurse, Dolly Barnett.

Barnett looked at Bell and saw that she was pale. She performed a jaw thrust to open Bell's airway and saw that Bell was not breathing. Barnett listened and felt for a heartbeat and breathing, but neither was present. Barnett told Sturm to bring CRNA Goode, and Barnett began administering CPR. Sturm went into the second operating room and told CRNA Goode that he was needed in the recovery room immediately.

Upon entering the recovery room, CRNA Goode began assisting Barnett with cardio pulmonary resuscitation (CPR). CRNA Goode picked up the Ambu bag, a portable mechanical ventilator attached to a tube of pure oxygen, placed it over Bell's nose and mouth, and squeezed the bag to force air into her lungs. The bag compressed smoothly, and CRNA Goode saw Bell's chest rising, which indicated that the oxygen was going into her lungs. Barnett continued administering chest compressions, while CRNA Goode ventilated Bell with the Ambu bag.

At approximately 8 a.m., after finishing another patient's procedure, Dr. Lichtenberg came into the recovery room. Dr. Lichtenberg took over the external chest compressions and continued them for the duration of the resuscitation effort. CRNA Goode attached electrocardiogram (EKG) cables to Bell and attached her to the EKG machine to monitor her cardiac activity. The EKG readout displayed a terminal pattern. At approximately 8:15 a.m., CRNA Goode intubated Bell with an endotracheal tube.

Dr. Lichtenberg diagnosed Bell's condition in the recovery room as electromechanical disassociation (EMD), in which there is electrical activity in the heart but it is disassociated or dispersed and is not causing the heart to pump. In light of that diagnosis, Bell was given epinephrine, first intravenously and then half through the endotracheal tube and half intravenously, at approximately 8:15, 8:25, 8:30, 8:40, 8:45, and 8:51 a.m. Because Dr. Lichtenberg believed Bell might have had an underlying ventricular tachycardia or fibrillation, electric shocks were also administered to Bell at approximately 8:25, 8:40, 8:45, and 8:51 a.m., using between 200 and 300 joules, a considerable amount for a patient of Bell's size. Bell showed no signs of response to these resuscitative measures. After approximately an hour of resuscitative attempts, Bell was pronounced dead at 8:52 a.m.

The Cook County medical examiner's office performed an autopsy on Bell, which showed that she did not have any underlying health problems. Because defendants had already suggested that Bell's death was the result of a condition known as amniotic fluid embolism (AFE), the medical examiner referred the autopsy results to a consulting pathologist specifically to assess any evidence of AFE. The consulting pathologist found no evidence of AFE. The medical examiner listed the cause of death on Bell's death certificate as "undetermined" and the manner of death as "expired after abortion."

Plaintiff filed a complaint, naming as defendants Family Planning Management, Inc., FPA-Chicago, Dr. Allred, Dr. Lichtenberg, CRNA Goode, K. McLean, Anne Hohmerer, and Jane Doe. Plaintiff sued as the personal representative and independent administrator of the estate of Deanna Bell, her daughter. Plaintiff's 60-count complaint sought recovery under theories of medical malpractice, the Survival Act (755 ILCS 5/27-6 (West 1996)), the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1996)), res ipsa loquitur, failure to give informed consent, negligent hiring, and negligent supervision.

Defendants moved for summary judgment as to plaintiff's negligent hiring claims and all claims against Anne Hohmeier, Kathy McLean, and Family Planning Management, Inc. The circuit court entered an agreed order granting those motions. Plaintiff then moved to add FPA-California as a defendant. Over defendants' objections, the circuit court granted plaintiff's motion. Plaintiff then filed a second amendment to her complaint, and defendants filed an answer thereto. The case was tried before a jury beginning on April 28, 1998.

Plaintiff presented three medical experts at trial. Dr. Stuart Graham primarily rebutted defendants' theory of causation, and Dr. Craig Leicht and Dr. Steven Gordon addressed plaintiff's case in chief.

Plaintiff's experts testified that Bell's death was caused by numerous breaches of the standard of care by defendants. First, plaintiff's experts testified that the Physicians Desk Reference (PDR) specifications for Brevital reflect the standard of care regarding dosages. Plaintiff's experts testified that defendants breached the standard of care by administering three to four times the appropriate induction dose and five to six times the appropriate maintenance doses of Brevital. They testified that the consequences of such an overdose would be cessation of respiration and the inability of the body to signal its difficulty in breathing.

Second, plaintiff's experts testified that defendants failed to monitor Bell adequately. They testified that Bell should have been given supplemental oxygen by mask and should have been attached to an EKG machine both during the procedure and immediately upon her arrival in the recovery room. They stated that CRNA Goode should have checked Bell's vital signs upon arrival in the recovery room, verbally reported Bell's condition to a recovery room nurse, and obtained the nurse's affirmative acceptance of Bell's care before leaving the room. Plaintiff's experts further testified that there should have been at least two registered nurses in the recovery room and that Bell should not have been left in the hands of a medical assistant whose only medical training was on the job. As a result of defendants' failure to monitor Bell, plaintiff's experts stated, Bell's respiratory arrest went undetected until it was too late to resuscitate her.

Third, plaintiff's experts testified that defendants' resuscitation efforts fell below the standard of care and even below the standard set by defendants' own policies and procedures. The experts testified that defendants should have had Bell attached to an EKG before any problem was detected. Further, they stated that Dr. Lichtenberg, CRNA Goode, and Barnett should have been current in advanced cardiac life support (ACLS) protocols, there should have been at least two registered nurses trained in ACLS protocols in the recovery room to assist with resuscitation, and defendants should have called 911 for assistance from paramedics who were ACLS certified. Furthermore, the experts testified that resuscitation efforts made by defendants should have been made more quickly and with greater frequency in order for Bell to have had any chance of recovering from her arrest.

Finally, Dr. Leicht testified that defendants breached the standard of care by failing to inform Bell or plaintiff of the risk of death from general anesthesia.

At the close of plaintiff's case, defendants moved for a directed verdict on plaintiff's claims under the Survival Act and moved to strike the testimony of economist Christopher Curran in support of those claims. Plaintiff did not oppose defendants' motions, and the trial court granted them. Defendants also sought a directed verdict as to all remaining claims, or ...

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