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Simmons v. Garces

January 25, 2002

JENNIFER SIMMONS ET AL., APPELLANTS
v.
ROLANDO M. GARCES, M.D., APPELLEE



The opinion of the court was delivered by: Justice McMORROW

UNPUBLISHED

In this appeal we are asked to determine whether the jury's answer to a special interrogatory is incompatible with the jury's general verdict, and, if so, whether the special interrogatory controls. A jury returned a general verdict in the amount of $675,000 against defendant Dr. Rolando M. Garces and in favor of plaintiffs Jennifer Simmons (Jennifer) and Harold King (Harold), who had brought a medical malpractice action against Dr. Garces following the death of their infant daughter, LaTonya King. The jury also answered "No" to the special interrogatory: "Did dehydration contribute to cause the death of LaTonya King?" As a result, in response to Dr. Garces' post-trial motion, the circuit court of Cook County entered judgment in favor of Dr. Garces on the special interrogatory. 735 ILCS 5/2-1108 (West 2000). A divided appellate court affirmed, concluding that the jury's answer to the special interrogatory was "absolutely irreconcilable with the general verdict" and the trial court therefore "properly entered judgment in favor of defendant." 319 Ill. App. 3d 308, 322. We allowed plaintiffs' petition for leave to appeal. 188 Ill. 2d R. 315. For the reasons set forth below, we affirm the judgment of the appellate court.

BACKGROUND

LaTonya King *fn1 was born prematurely to Jennifer on December 28, 1993, and was hospitalized for two weeks thereafter. On January 21, 1994, Jennifer brought LaTonya to Dr. Garces' clinic for a checkup. The child's weight was five pounds, 12 ounces, and Dr. Garces pronounced her a perfectly healthy baby.

Dr. Garces practiced in a clinic at 7106 South Jeffery in Chicago, about a block and a half from Jennifer and Harold's residence at 7234 South Jeffery. The clinic operated on a first-come, first-served basis. Patients would sign in when they entered the clinic, and would be seen by the doctor in that order. Dr. Garces had two assistants, Sharon Robinson (Sharon), a certified medical assistant, and Shalonda Sloan (Shalonda), an 18-year-old with no formal training in patient care. One of the responsibilities of the assistants was to notify the doctor if a patient presented an emergency. If that were the case, the doctor would see the patient out of turn.

Jennifer testified that LaTonya took her normal feeding of four ounces of formula on the night of January 23, 1994. The next morning, January 24, Jennifer noticed loose stool in LaTonya's diaper when the child awoke for her feeding. Jennifer denied at trial that LaTonya took four ounces of formula at this 6 a.m. feeding, but was impeached with her deposition testimony to the contrary. At 8:30 a.m. LaTonya took two ounces of water. However, she would not take her 10 a.m. feeding, and Jennifer became concerned. She called Dr. Garces' clinic and spoke to the doctor, informing him of the situation, and he told her to switch to a formula called Pedialyte. Jennifer tried to feed LaTonya the Pedialyte, but the child would take only half an ounce.

At 12:30 p.m. Jennifer again telephoned the clinic and spoke to Sharon, who told her she should keep trying to get LaTonya to take the Pedialyte. Jennifer's subsequent attempts to feed LaTonya the formula were unsuccessful. At that point Jennifer dressed the baby warmly and walked to the clinic, arriving at about 1 p.m. After about 15 minutes, Shalonda called Jennifer's name and they went to a waiting area, where Jennifer told Shalonda that LaTonya was not sucking the bottle. Shalonda testified that she weighed and measured LaTonya, and wrote the child's height, weight, temperature and head circumference in a temporary chart. She used a temporary chart because she was unable to retrieve LaTonya's permanent chart. Shalonda then left the waiting area and went to speak to the doctor. According to Jennifer, when Shalonda returned, she told Jennifer that Dr. Garces wanted her to get some Pedialyte from a drug store. Jennifer then left the clinic and went across the street to the drug store, picked up the Pedialyte, and went home. She stated that she left the office because she was following the doctor's orders to obtain the Pedialyte.

Jennifer tried repeatedly that afternoon to feed LaTonya the formula but to no avail. She called the clinic at 2:29 p.m. and at 2:53 p.m., each time speaking to Sharon, who told her to continue her efforts. During the second of these calls, Jennifer told Sharon that LaTonya was sleeping more. At 3:56 p.m. Jennifer called the clinic again and spoke to Dr. Garces, who told her to try a different formula and if that did not work, to take LaTonya to the emergency room. Dr. Garces said he was concerned that LaTonya might become dehydrated. Soon after, at about 4:13 p.m., Jennifer called a cab. She testified that she waited inside her apartment for it to arrive, dressed the baby warmly, and then took the cab to South Shore Hospital.

Dr. Thomas Bahk, an emergency room physician at South Shore, testified that LaTonya was dead when she arrived at the emergency room at about 4:40 p.m. She had no respiration, no blood pressure, and no pulse. He and the emergency room nurses performed cardiopulmonary resuscitation but were unable to revive her. She was pronounced dead at 5:06 p.m. on January 24, 1994.

Marcel Parungao, an emergency room nurse, testified that the baby's rectal temperature at that time was 93.2 degrees Fahrenheit, and her weight was five pounds, eight ounces. He also found loose stool in her diaper. Myrna Carating, another nurse, testified that LaTonya was wearing a diaper and pajamas, and was wrapped in two receiving blankets that were "quite thin." According to Carating, Jennifer told her that LaTonya had been active at 2:30 p.m. Carating also recorded that just prior to Jennifer's and LaTonya's arrival at the emergency room, LaTonya had stiffened, her arms had stretched, and her neck was hyperextended.

Chicago Police Officers Charles Howard and Paul Anderson went to the hospital on January 24 after receiving a call about LaTonya's death. Anderson testified that Jennifer indicated she walked to the hospital. Howard gave essentially the same testimony, stating that a report prepared after they had gone to the scene indicated that Jennifer walked to the hospital on January 24. Under cross-examination, Howard and Anderson conceded that this report was not signed by a supervisor.

Between 5 and 6 p.m., Chicago police department Detectives John McMurray and David Friel were assigned to investigate LaTonya's death. After arriving at the hospital, they interviewed hospital staff members as well as Jennifer and Harold. Friel stated that they learned from Jennifer that she arrived at the hospital by taxi. Friel and McMurray closed their investigation after determining that there had been no criminal wrongdoing.

Dr. Tae Lyong An, a forensic pathologist with the Cook County medical examiner's office, conducted an autopsy. According to Dr. An, LaTonya's death was caused by "dehydration due to gastroenteritis." LaTonya had sunken eyeballs and poor skin turgor, *fn2 or tension, both of which, according to Dr. An, are consistent with dehydration. Under cross-examination, Dr. An conceded that premature babies can be born without fully developed subcutaneous tissue and fat, and thus could have sunken eyeballs without being dehydrated. In addition, premature infants can have excess skin that would appear wrinkly and have less tension. Dr. An also acknowledged that there was just a four-ounce difference between the weight recorded for LaTonya on January 21 (5 pounds, 12 ounces), and her weight on January 24 in the emergency room (5 pounds, 8 ounces). That is a weight loss of 4.4%, which Dr. An conceded would be unlikely to cause death by dehydration. He also acknowledged that his report included no finding of tubular necrosis in the kidneys, a condition that is consistent with death by severe dehydration, nor did he find any anatomic or pathologic evidence of inflammation in the stomach or small intestine, a condition that constitutes the definition of gastroenteritis. Dr. An explained that there is such a thing as "functional change of the intestine" which, though not anatomically found, can cause diarrhea. "We call it gastroenteritis," he said. "That is nothing unusual."

Dr. An also testified that he did not think there was any evidence of hypothermia as a possible cause of death. He said he had information that Jennifer took LaTonya to the hospital by taxi. He did not remember that Jennifer walked to the hospital.

Jennifer and Harold, acting individually and as co-special administrators of LaTonya's estate, brought a wrongful-death action against Dr. Garces, alleging that LaTonya's death was a proximate result of Dr. Garces' negligence. Attached to the complaint was a physician's report asserting that LaTonya "died from dehydration."

Plaintiffs presented the expert testimony of Dr. Gilbert Given, a board-certified pediatrician, to establish that Dr. Garces deviated from the applicable standard of care and that his negligent conduct resulted in LaTonya's death from dehydration. Dr. Given testified that, in his opinion, LaTonya "was severely dehydrated and this contributed to her death." He said dehydration, which he defined as a loss of body fluids, *fn3 is determined by the percent of weight loss. A loss in body weight of more than 10% or 12% usually indicates severe dehydration. In such instances, the child's circulation becomes involved, and the child may have lower blood pressure. According to Dr. Given, LaTonya was 12% to 14% dehydrated, based on a comparison of her weight on January 21, 1994 (5 pounds, 12 ounces), and her weight at autopsy, which Dr. Given said was about 5 pounds. The appropriate treatment in LaTonya's case would have been "hospitalization and IV fluids." Dr. Given opined that Dr. Garces' failure to see LaTonya and intervene on January 24 amounted to negligence which contributed to the child's death. According to Dr. Given, "more likely than not, if Dr. Garces had intervened with appropriate IV fluids [LaTonya] would not have died."

On direct examination, Dr. Given was asked about inconsistencies in evidence he had reviewed. He responded that there were "numerous" inconsistencies, "[e]ven to the point of how the baby got to the hospital. It was noted by one officer that the mom took a cab. Someone else noted that the mom walked."

Dr. Given conceded on cross-examination that the medical examiner's report included no findings of tubular necrosis of the kidneys, nor did it include any findings of inflammation of the stomach, the large intestine or the small intestine. The report also did not mention the exact number of times LaTonya had diarrhea, nor did it describe LaTonya's input of fluid prior to her death. As far as Dr. Given knew, no one made any determination as to the amount of fluids LaTonya took in or expelled "during this illness."

He also acknowledged that he did not know to a reasonable degree of medical certainty the exact extent of the dehydration that LaTonya suffered. "How dehydrated the child, the baby, was, I don't know," Dr. Given said.

Dr. Garces denied that he was negligent, 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 that LaTonya's death was not caused by dehydration but rather that it resulted from hypothermia, or possibly from suffocation.

Dr. Michael Kaufman, who was certified in anatomic pathology and cytopathology, testified that he found no significant evidence in the medical records or the autopsy report to indicate that LaTonya died from dehydration. He opined instead that the cause of death was hypothermia, or possibly suffocation. He noted that LaTonya's weight had changed by only 4.4% from January 21 until the time she was weighed in the emergency room on January 24 "just at the point of death." Such a weight loss, he said, is "insignificant" and insufficient to cause or contribute to cause death by dehydration.

Dr. Kaufman also noted that there was no indication of any elevation in the levels of blood urea nitrogen, sodium or creatinine. This, he said, was inconsistent with death due to dehydration. In addition, the gross and microscopic findings in the autopsy report showed no evidence of gastroenteritis. The autopsy report also included no reference to any findings of acute tubular necrosis, which Dr. Kaufman said was inconsistent with severe dehydration.

According to Dr. Kaufman, the most likely cause of death was hypothermia. He noted that LaTonya's temperature as recorded in the emergency room on January 24 was 93.2 degrees, which he termed "markedly depressed." In order for death to result from hypothermia, which is defined as a subnormal body temperature, it must be of a significant enough degree that it alters the normal body metabolism and creates an abnormal heart rhythm. Dr. Kaufman said he found nothing in LaTonya's autopsy report that was inconsistent with a death by hypothermia.

Dr. William Wittert, a board-certified pediatrician, also testified for the defense. Dr. Wittert opined that LaTonya did not die of dehydration. He noted that, according to the record testimony, LaTonya took four ounces of fluid between 9 and 10 p.m. on January 23, another four ounces at 6 a.m. on January 24, and two ounces at 8:30 a.m., plus a half ounce of Pedialyte later in the morning. At the same time, there were only two references to output in terms of stool: the loose stool that Jennifer said she found in the diaper at 6 a.m., and the loose stool found in LaTonya's diaper at the emergency room. According to Dr. Wittert, these inputs and outputs of fluid are inconsistent with dehydration. He noted, in addition, that LaTonya's weight loss from January 21 to January 24 was only four ounces, or about 4.34%. Such a weight loss could represent mild dehydration but is not life-threatening. Even if the weight loss were as high as 10%, "babies should not die from that level of dehydration."

As to other possible causes of LaTonya's death, Dr. Wittert said he did not have an opinion to a reasonable degree of medical certainty as to what caused her death. However, he pointed to the child's 93.2 degree temperature, which he described as "very low." Most babies, he said, would probably survive that temperature, but LaTonya was small and preterm, and in her case this temperature might have contributed to or caused her death. He also said the child might have suffocated.

Dr. Wittert also opined that Dr. Garces and his staff possessed the requisite skill and met the applicable standard of care in this case. According to Dr. Wittert, nothing that Dr. Garces did caused harm to LaTonya.

The instructions to the jury stated plaintiffs' claims as follows: Dr. Garces was negligent on the day of LaTonya's death by (a) failing to examine LaTonya after Jennifer brought her to the clinic when he should have known that the child was experiencing diarrhea, drowsiness, and the inability to suck; *fn4 (b) failing to follow up by taking phone calls from Jennifer, when he should have known of LaTonya's symptoms; (c) failing to refer LaTonya to a physician or hospital for examination, diagnosis, or IV treatment when he knew or should have known of her symptoms; or (d) permitting his staff to provide inappropriate medical advice or decisions over the phone. The jury was instructed that it must not decide the question of professional negligence based on personal experience but only from expert testimony.

The parties disagreed as to which instruction should be given for proximate cause, with plaintiffs arguing for the long form of Illinois pattern instruction No. 15.01, and defendant urging the short form. See Illinois Pattern Jury Instructions, Civil, No. 15.01 (2000). The trial court agreed to give the long form, which stated that:

"When I use the expression `proximate cause,' I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury." Illinois Pattern Jury Instructions, Civil, No. 15.01 (2000).

Once the court agreed to give the long-form instruction, defendant argued that a special interrogatory was needed in order for the jury to determine specifically whether dehydration caused LaTonya's death. According to defendant's counsel, if the jury determined that dehydration was not involved in LaTonya's death, then Dr. Garces could not be liable because "[t]hat's their whole case."

Plaintiffs' counsel objected, arguing that the jury had heard evidence of a variety of causes of death, and that it would be prejudicial to plaintiffs to "make it very narrow" with this special interrogatory. According to counsel, the jury might think that LaTonya's death was the result of a combination of causes. The court asked, "What if they think it's suffocation?" Plaintiffs' counsel answered: "[I]f [the jurors] think it's suffocation, there's been no testimony from the plaintiffs that suffocation would make the doctor responsible, so they wouldn't even get to this. They would be on Verdict Form B [in favor of Dr. Garces]."

The court suggested that a more appropriate interrogatory to test the jury's verdict would be: "Did dehydration contribute to cause the death of LaTonya King?" The court gave this interrogatory over plaintiffs' objection.

During their deliberations, the jury sent out a note asking three questions:

"(1) If we have already decided on Form A or Form B, what is the purpose of ...


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