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
OPINION MODIFIED UPON DENIAL OF REHEARING
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 the trial court and reinstate the judgment for plaintiff.
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, instructions with separate and independent allegations of negligence and proximate cause were submitted for the jury's consideration, to wit: (1) defendant's failure to provide an adequate mechanism by which a description of the placenta would appear in Diana Suttle's hospital chart; (2) its failure to issue policies and procedures for the monitoring of blood pressure of stressed newborns in its nursery; and (3) its failure to provide any suitable in-serviced newborn blood pressure equipment. 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 or 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 ...