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Simmons v. Garces

February 07, 2001

JENNIFER SIMMONS AND HAROLD KING, INDIVIDUALLY, AND AS CO-SPECIAL ADMINISTRATORS OF THE ESTATE OF LATONYA KING, DECEASED, PLAINTIFFS-APPELLANTS,
v.
ROLANDO M. GARCES, M.D., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Wolfson

Appeal from the Circuit Court of Cook County.

Honorable Patricia M. Martin, Judge Presiding.

The dominant question in this case is whether the jury's answer to a special interrogatory trumped its general verdict in favor of the plaintiffs. The trial court said it did. We agree.

Plaintiffs, Jennifer Simmons (Jennifer) and Harold King, individually and as co-special administrators of the estate of their daughter, LaTonya King (LaTonya), brought a medical malpractice action against defendant, Dr. Rolando M. Garces. A jury returned a general verdict in favor of plaintiffs and against defendant in the amount of $675,000. In addition, the jury answered "No" to the special interrogatory: "Did dehydration contribute to cause the death of LaTonya King?" In response to defendant's post-trial motion, the trial court entered judgment in favor of defendant on the special interrogatory. 735 ILCS 5/2-1108 (West 1998).

Plaintiffs contend on appeal the court erred in entering judgment on the special interrogatory. Plaintiffs also contend they were prejudiced by defense counsel's misconduct, errors in the admission or refusal of evidence, and the court's refusal to give a requested missing-evidence jury instruction. We affirm.

FACTS

Dr. Garces operated a first-come-first-served clinic from 10 a.m. to 5 p.m. Sharon Robinson Booker (Sharon), a medical assistant, and Shalonda Sloan Martin (Shalonda), a receptionist, assisted Dr. Garces. Patients would sign in and be called in order but would be called out of order if they had an emergency situation. If a parent insisted that her child was very ill, the assistants were instructed to call Dr. Garces immediately.

Jennifer brought LaTonya to the clinic for the first time on January 21, 1993. Dr. Garces pronounced LaTonya to be a perfectly healthy baby.

Jennifer testified LaTonya took four ounces of formula at 5 p.m. on January 23 and again at 9 or 10 p.m. She denied LaTonya took four ounces of formula at 6 a.m. on January 24, but she was impeached with her prior deposition testimony to the contrary. Jennifer also testified LaTonya took two more ounces of fluid at 8:30 a.m. and another half ounce before noon on January 24. Jennifer acknowledged LaTonya had only one bowel movement on the morning of January 24, none the night before. During the last 24 hours of her life, LaTonya was not sweating or vomiting.

On January 24, Jennifer called Dr. Garces at 10 a.m. and said LaTonya had diarrhea and was not taking her formula. Dr. Garces told Jennifer to give LaTonya Pedialyte and to come in if the problem persisted.

Jennifer testified when LaTonya refused the Pedialyte, she dressed her warmly and walked to the clinic at 1 p.m. According to Jennifer, Shalonda went to speak with Dr. Garces and then told Jennifer Dr. Garces wanted her to get Pedialyte from a drug store. Shalonda and Sharon testified Jennifer signed in but left the clinic on her own without waiting to be seen. Jennifer returned home and tried again to get LaTonya to drink.

Jennifer said she called 911 at 2:20 p.m. and explained LaTonya's symptoms. The 911 operator told her she should contact her pediatrician. She called the clinic again several times during the day but did not speak to Dr. Garces.

At 3:56 p.m., Dr. Garces spoke to Jennifer again when she called to say LaTonya was not drinking. He told her to try a different formula. If LaTonya would not take that formula, Jennifer was to take her to the emergency room because she might get dehydrated.

Jennifer said she called a taxi about 4:13 p.m., dressed LaTonya as she had when she took her to the clinic, and waited inside her apartment for the taxi to arrive. She said she took the taxi to the hospital.

At 4:40 p.m. Jennifer arrived at South Shore Hospital with LaTonya. LaTonya was not breathing. Dr. Thomas Bakh and nurses Myrna Carating and Marcel Parungao tried unsuccessfully to resuscitate LaTonya. She was pronounced dead at 5:06 p.m. Emergency room staff recorded LaTonya's rectal temperature of 93.2 degrees and weight of 5 pounds 8 ounces. They also noted Jennifer's statement that LaTonya was "active at 2:30" and immediately prior to their arrival in the emergency room "infant stiffened, arms stretched, and neck hyperextended."

Officers Charles Howard, Jr., and his partner, Paul Anderson, went to the hospital emergency room to investigate the death. Officer Howard testified he prepared a report stating Jennifer had walked to the hospital. The report was not signed by a supervisor. Officer Anderson testified, "It was my recollection that [Jennifer] walked to the hospital according to her."

Detective David Friel and his partner Detective McMurray arrived at the hospital between 5 p.m. and 6 p.m. to investigate the death. They interviewed LaTonya's parents and hospital staff members. Detective Friel testified Jennifer told him she arrived at the emergency room by taxi. He identified a report Detective McMurray prepared at the time documenting what they learned. They closed the investigation having determined there was no apparent criminal wrongdoing.

Dr. Tae Lyong An, a Cook County forensic pathologist, performed an autopsy and determined the cause of death was "dehydration due to gastroenteritis." Dr. An defined gastroenteritis as an inflammation of the stomach and the small intestine. He acknowledged finding no anatomic or pathologic evidence of an inflammation in the stomach or small intestine consistent with gastroenteritis. But he explained even if not anatomically found, "it can cause diarrhea, so we say -- we call it gastroenteritis. That's nothing unusual." Three other Cook County pathologists reviewing his opinion agreed.

Dr. An stated he did not believe there was evidence of hypothermia. He had evidence Jennifer took LaTonya to the hospital by taxi and did not remember any information that Jennifer walked. But he did not think the information was significant.

Plaintiffs presented the expert testimony of Dr. Gilbert Given, a board certified pediatrician, to establish defendant deviated from the standard of care and his negligent conduct resulted in LaTonya's death by dehydration.

Dr. Given testified the standard of care for Dr. Garces is the same as that for a board certified pediatrician. In Dr. Given's opinion, Dr. Garces deviated from that standard of care by failing to examine LaTonya when she was brought to the clinic, failing to take Jennifer's phone calls, and failing to refer LaTonya to another physician or hospital.

Dr. Given said dehydration is a loss of body fluids which can cause death. The severity of dehydration is determined by weight loss after the illness begins. Mild dehydration is generally not life-threatening. However, in severe dehydration a child's circulation and blood pressure become involved. Appropriate treatment is hospitalization and administration of IV fluids.

In Dr. Given's opinion, LaTonya was severely dehydrated (12 to 14%) based on the weight at autopsy (5 pounds) compared with the weight on January 21 (5 pounds 12 ounces) and the reports describing sunken eyes and dehydrated skin. He acknowledged if he used the weight recorded at the emergency room (5 pounds 8 ounces) to calculate the percentage of weight loss, only mild dehydration would be shown. He was asked:

Q: Doctor, do you have an opinion as to the mechanism of LaTonya's death?

A: I believe she was severely dehydrated and this contributed to her death.

The appropriate treatment, he said, would have been hospitalization and IV fluids: "I think more likely than not if Dr. Garces had intervened with appropriate IV fluids that she would not have died."

Dr. Given was asked on direct examination about inconsistencies in evidence he had reviewed. Dr. Given said, "Oh, there were just numerous in terms of what was said, what wasn't said, who said what. Even to the point of how the baby got to the hospital. It was noted by the officer that the mom took a cab. Someone else noted that the mom walked. There were just a lot of inconsistencies."

On cross-examination, Dr. Given said there was no evidence of acute tubular necrosis in the kidneys consistent with severe dehydration. He was extensively cross-examined on the lack of evidence in Dr. An's autopsy report to support a conclusion of death by dehydration. He acknowledged the emergency room record stated LaTonya was active and alert at 2:30 p.m.

Dr. Given agreed the physical signs of death by hypothermia are an absence of heartbeat and a cold body, and both were present in this case. Counsel elicited this response from Dr. Given: "Based on review of the complete record, I would suspect that this child had - was dehydrated. How dehydrated the child, the baby, was, I don't know."

Dr. Garces denied any negligence and denied that any claimed act or omission on his part was a proximate cause of plaintiffs' claimed injuries. He presented expert testimony to establish LaTonya's death was not caused by dehydration but occurred from either of two other causes: hypothermia or accidental suffocation. No one testified either of those two other possible causes was related to Dr. Garces' purported negligence.

Dr. Michael Kaufman, certified in anatomic pathology and cytopathology, testified in his opinion hypothermia was the cause of death. He explained hypothermia causes death if it is of a significant enough degree to alter normal body metabolism to create an abnormal heart rhythm or systole, a total stoppage of the heart impulse. Dr. Kaufman noted the emergency room report of how LaTonya had been clothed, her cold skin, and a "markedly" low rectal temperature of 93.2 degrees. He believed the mechanism of death was a terminal arrhythmia which "may have caused the seizure, but clearly it caused the heart just to stop."

Dr. Kaufman also noted the "possibility" of death by suffocation. He noted petechia, or bleeding, in the lungs.

Dr. Kaufman found no significant evidence in the medical records showing LaTonya had significant dehydration or died of dehydration. He noted the "gross and microscopic findings of a lack of gastroenteritis" in Dr. An's autopsy report. Comparing LaTonya's weight on January 21 and weight post-mortem in the emergency room, the weight loss was only 4.4%, an insignificant percentage. In addition, laboratory tests for urea nitrogen, creatinine, and sodium were inconsistent with significant dehydration. Dr. Kaufman viewed the basis of the autopsy findings of dehydration as merely consistent with a lack of subcutaneous body fat.

Dr. William Wittert, a board certified pediatrician and a fellow of the American College of Forensic Examiners, also testified for the defense. In his opinion, Dr. Garces possessed the skill and met the standard of care of reasonably well trained and qualified practitioners practicing in the same or similar circumstances. He said, "I believe that nothing he did caused harm to Latonya King."

Dr. Wittert also said, "This child did not die from dehydration." The reports of LaTonya's fluid intake from the evening of January 23 through the morning of January 24 and the output (one loose stool) were inconsistent with dehydration. Dr. Wittert calculated weight loss as 4.3%, which would not be life-threatening. He stated even a 7-10% weight loss should not cause a baby to die of dehydration.

Dr. Wittert said he did not have an opinion to a reasonable degree of medical certainty why LaTonya died. In his opinion, a contributing factor of death was LaTonya's "very low" temperature. He also stated, ...


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