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Mabry v. The County of Cook

June 30, 2000


The opinion of the court was delivered by: Presiding Justice O'mara Frossard

Appeal from the Circuit Court of Cook County Honorable Richard B. Berland, Judge Presiding

Plaintiff, Donald Mabry, brought this medical malpractice action against defendants, County of Cook and Cook County Hospital, seeking damages for the death of his mother, Ada Pinkston (Pinkston). Following a jury trial, the jury rendered a verdict in favor of plaintiff and awarded damages of $750,000. The trial court entered judgment on the verdict and denied defendants' posttrial motion.

Defendants now appeal the jury verdict and raise one issue for review. Defendants argue that they are immune from liability under sections 6-105 and 6-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/6-105, 106 (West 1996)), because plaintiff's medical malpractice cause of action alleged negligence in defendants' physicians failure to diagnose Pinkston's pulmonary embolism, the medical disease that caused her death. Plaintiff argues that defendants are not immune from liability because defendants' negligent conduct included a failure to follow up an ordered test and engage in a proper course of treatment while Pinkston was hospitalized at Cook County Hospital.

Defendants do not dispute the evidence about their treatment of Pinkston but contend that her death resulted from a failure to diagnose the ailment that caused her death and not a failure or omission in the treatment provided. Defendants argue that they gave Pinkston proper treatment for her asthmatic condition, the only ailment that they diagnosed, and thus any liability imposed on them is a result of their failure to diagnose Pinkston's pulmonary embolism and their failure to perform an adequate physical examination. They contend that they cannot be held liable for these acts or omissions under sections 6-105 and 6-106(a).


The relevant facts at trial established that on April 30, 1992, Pinkston went to the emergency room of Cook County Hospital. She complained of dizziness and dyspnea or shortness of breath. She was initially diagnosed with asthma and given a peak flow test to measure her expiratory flow rate. Pinkston's test reflected a rate of 250 and was slightly below normal but not particularly low.

The attending physician in the emergency room, Dr. Kling, ordered an EKG, the drawing of arterial blood gases (ABG), and a chest X ray. The ABG blood test analyzes and determines the oxygen status of the patient and how well the patient is breathing. The test revealed a below normal amount of oxygen in Pinkston's blood stream, and Dr. Kling ordered Pinkston to receive oxygen by nasal cannula. Based on Pinkston's medical history and his clinical findings, Dr. Kling diagnosed Pinkston with asthma and respiratory distress. Dr. Kling testified that he also made a differential diagnosis, which accounts for other medical conditions that may contribute to the patient's present symptoms and complaints. Dr. Kling considered other ailments such as allergies, tuberculosis, tumors, infections, pneumonia, viruses, and congestive heart failure.

Dr. Kling acknowledged that Pinkston's chart did not indicate that the ailment of pulmonary embolism was considered, but he believed its risk factors were reviewed. According to Dr. Kling, the most common risk factors of a pulmonary embolism are obesity, broken bones, cancer, and deep vein thrombosis, because these conditions all enable blood clots to form in the extremities. Once the blood clot forms, it then travels into the lungs. Dr. Kling testified that Pinkston did not have these risk factors. Dr. King also noted that a pulmonary embolism may mimic the symptoms of asthma and other medical ailments.

Pinkston additionally received a chest X ray in the emergency room and it showed a three- by-four-centimeter rounded soft tissue density in the right hilum, the area of the lungs where the pulmonary artery enters. Dr. Kling spotted the soft tissue density, identified it as a hilar density or mass, and diagnosed causes of the condition as either lymph node enlargement, infection, or malignancy. Based on Pinkston's medication, medical history and bilateral expiratory wheezing, Dr. Kling diagnosed Pinkston with asthma and did not diagnose any pulmonary embolism. Dr. Kling testified that he did not diagnose a pulmonary embolism because Pinkston did not have the risk factors associated with this condition.

Dr. Mohammed Nassem, a radiologist, reported to the emergency room doctors that the soft hilar density noted on Pinkston's X ray could be a tumor or a lymph node enlargement. Based only on an X ray, Dr. Nassem could not tell if the hilar density was a pulmonary embolism. Dr. Nassem believed that tests such as a VQ scan or an angiogram could appropriately identify an embolism if suspected. Pinkston was not given these tests. Dr. Kling reviewed the radiologist's report and believed that the hilar mass could be, among other ailments, a malignancy, tuberculosis, or some other infection or inflammation. Dr. Kling did not believe it required immediate treatment or care.

Because of the lack of significant improvement in her blood gas serious, Pinkston was admitted to Cook County Hospital on May 1, 1992, and eventually transferred to the family practice ward. Pinkston was initially under the care of Dr. Ferro, a first-year resident. Dr. Ferro conducted a complete examination of Pinkston and obtained a medical history. Dr. Ferro found Pinkston's chest sounds revealed mucus in both lungs, consistent with a diagnosis of asthma. An examination of Pinkston's legs showed no signs of deep vein thrombosis and thus no evidence of a pulmonary embolism. Dr. Ferro also noted the right hilar density. Later that day, Dr. Kurashi, a third-year resident, gave Pinkston a complete physical examination. Dr. Kurashi found occasional bilateral wheezing in Pinkston's lungs, which is common in asthmatics, and, like Dr. Ferro, did not find any evidence of deep vein thrombosis.

Both Dr. Ferro and Dr. Kurashi filled out an assessment and treatment plan report. They both first listed a diagnosis of asthma and called for a plan to continue to treat Pinkston with prednisone, an anti-inflammatory steroid and an alupent nebulizer. Both doctors next noted treatment to rule out a possible heart attack and to evaluate diabetes because Pinkston came to the emergency room with a low sugar count. Dr. Ferro and Dr. Kurashi, however, listed the right hilar density as a lower priority and indicated in their reports "will follow up."

At 10 a.m. on May 2, 1992, Dr. Ferro conducted another examination of Pinkston and continued to believe that she was suffering from an acute exacerbation of asthma. While the plan was to continue to treat Pinkston with steroids and nebulizers, Dr. Ferro included a requisition to do a CAT scan of the chest to rule out cancer. Dr. Ferro marked the box "stat" on the requisition form, which he routinely did, but stated his request was not urgent. The CAT scan was never performed. Prior to treating Pinkston, Dr. Ferro had never treated a patient with a pulmonary embolism and did not see any evidence in his treatment of Pinkston to indicate a diagnosis of pulmonary embolism.

On May 3, 1992, at 9:30 a.m, Dr. Fillai, a second-year resident, examined Pinkston. He noted that the patient was feeling better, her blood pressure was high, and her heart beat was slightly above normal. However, these readings were consistent with the medication Pinkston was taking for asthma. Dr. Fillai discontinued the oxygen by nasal cannula. The examination further revealed bilateral wheezing and a regular rate and rhythm of the cardiovascular system. Dr. Fillai never diagnosed Pinkston with a pulmonary embolism.

In the afternoon of May 3, 1992, Dr. Kurashi examined Pinkston and believed her condition had improved. Pinkston told Dr. Kurashi that she felt fine and did not need her oxygen. Plaintiff also visited Pinkston in the early afternoon and thought she seemed depressed. Plaintiff did not speak to any doctors. Pinkston's condition then became critical and she died later that day as a result of the pulmonary embolism.

Plaintiff's expert, Dr. Eugene Saltzberg, testified that he practices emergency room medicine at Condell Medical Center. Dr. Saltzberg testified that the cause of Pinkston's death was a pulmonary embolism. Dr. Saltzberg defined a pulmonary embolism as a blood clot that typically forms in the legs and travels through the venous system to the right side of the heart. The blood clot then leaves the heart and enters the pulmonary vasculate, causing an obstruction of the blood flow to the right side of the lungs. Dr. Saltzberg testified that a pulmonary embolism is a serious condition that requires immediate hospitalization and treatment with medication to prevent the blood from clotting. He noted the symptoms for asthma and a pulmonary embolism are similar.

Dr. Saltzberg further explained that a differential diagnosis is a list of diagnoses developed after examining a patient. When a patient enters the emergency room with shortness of breath, as Pinkston did, Dr. Saltzberg testified that the standard of care for an emergency room physician requires a differential diagnosis. Dr. Saltzberg opined, to a reasonable degree of medical certainty, that Dr. Kling violated the standard of care by not performing a proper differential diagnosis. Dr. Saltzberg additionally opined that the defendants' initial physicians in the emergency room did not take a proper history from Pinkston to determine that she suffered from a pulmonary embolism rather than from asthma.

Dr. Saltzberg testified, to a reasonable degree of medical certainty, that Dr. Kling misinterpreted the arterial blood gases and the notation of a hilar density. Dr. Kling further violated the standard of care by not ordering a lung scan and following up on the hilar density. Moreover, according to Dr. Saltzberg, Pinkston showed no signs of improvement during her hospitalization and typically an asthmatic will improve within 24 hours of being hospitalized. Defendants thus failed to recognize that Pinkston's recent complaint of bilateral wheezing, blood gas results, and lack of improvement indicated that she did not suffer from asthma but from a different medical condition. Dr. Saltzberg further testified, to a reasonable degree of medical certainty, that defendants' physicians violated the standard of care by not following through with the ordered CAT scan and this failure proximately caused Pinkston's death. Dr. Saltzberg noted that no physician followed up on the hilar density and opined that defendants violated the standard of care by failing to conduct any pulmonary embolism tests, such as a lung scan, during the course of Pinkston's hospital stay. Dr. Saltzberg then testified as follows:

"Q. To a reasonable degree of medical certainty more probably true than not, did these deviations from the standard of care - - did the physicians deviate from the standard of care in failing to ...

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