Appeal from the Circuit Court of Cook County. Honorable Denise M. O'Malley, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Quinn
Defendant, the County of Cook, doing business as Cook County Hospital (Cook County), appeals from a retrial in which a $5.3 million judgment was entered on a jury verdict in favor of plaintiff, Darlene Clayton, special administrator of the estate of Richlyn Cork. The first trial had resulted in a verdict for defendant. Plaintiff appealed and this court reversed the judgment, based upon both defense counsel's improper argument and discovery violations under Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)). See Clayton v. County of Cook, No. 1-97-1825 (1999) (unpublished order under Supreme Court Rule 23). Following retrial, defendant's posttrial motion was denied.
Defendant appeals, arguing that the circuit court abused its discretion by: (1) allowing new opinions from plaintiff's expert witness in violation of Rule 213(g); (2) allowing evidence of the treating physician's failure to insert an arterial blood gas (ABG) line into Cork; (3) barring any evidence regarding the circumstances of Cork's initial injury; (4) allowing Dr. Robert Kirschner, a Cook County assistant medical examiner, to testify with respect to opinions that allegedly were outside the scope of his medical expertise; (5) refusing to instruct the jury on sole proximate cause and allowing damages based on Cork's habit of industry; and (6) denying defendant's motion for a new trial based on the conduct of plaintiff's counsel, including the injection of personal beliefs in closing argument, argument of facts not in evidence and violations of rulings on motions in limine.
For the reasons that follow, we reverse and remand for a third trial.
On March 12, 1991, plaintiff, Cork's mother, found Cork, then 12 years old, in her bedroom lying unconscious with a cord wrapped around her neck. The cord was attached to the closet door. Cork was unable to breathe on her own, was unresponsive and had ligature marks on her neck. Cork first was transported by ambulance to St. Francis Hospital (St. Francis) in Evanston, where she was intubated, which required the placement of a tube through her nose and back of her throat into the windpipe, or trachea, for attachment to a mechanical ventilator to assist in breathing. She was transferred to Cook County later that evening.
During the first few days of her hospitalization at Cook County, Cork remained intubated and comatose. She developed several complications, including acute respiratory distress syndrome (ARDS), in which the lining of the lungs leaks, filling the lung sacs with fluid. ARDS also causes scab-like material to fill up the lung sacs, making it difficult to keep blood oxygenated and to remove carbon dioxide. In addition, Cork developed two types of pneumonia and empyema, an infection inside or outside the lungs characterized by pockets of pus. A lung with chronic empyema is at risk of collapse, requiring surgery. Due to Cork's ARDS and empyema, her left lung was markedly "stiff" or adherent to the chest wall.
In light of her condition, Cork remained attached to a mechanical ventilator to the extent that a tracheostomy was required. A tracheostomy is a surgical procedure to open the trachea and also refers to the formation of the opening or the opening itself. Repeated efforts were made to remove the secretions from Cork's lungs by pounding on her chest and suctioning out the material through the endotracheal tube, which was replaced gradually by smaller tubes until Cork was able to breathe on her own. In addition, Cork was given two different courses of antibiotics to treat her pneumonia.
On April 27, 1991, Cork was discharged from Cook County in stable condition, but with residual ARDS. Hospital records showed that a laryngoscopy was performed, but not a bronchoscopy. As part of her discharge instructions, Cork was scheduled for an April 29 appointment at the Rehabilitation Institute to be evaluated for brain damage and a May 2 appointment at the Fantus Pediatric Surgery Clinic. She also was instructed to call the pediatric intensive care unit or go to the emergency room at Cook County if she had difficulty breathing. On the morning of May 3, 1991, Cork began to experience difficulty breathing after inhaling tar fumes. Cork panted, gasped for air and coughed up phlegm for a period of 15 minutes. She was brought to the emergency room at St. Francis, where she exhibited symptoms of cyanosis and hypoxia, or lack of oxygen. Her oxygen saturation level dropped to 80%. A chest x ray revealed that Cork had pneumonia in her left lung. Cork immediately was administered 100% oxygen, which raised her saturation level into the mid-90s.
At 9 p.m. that evening, Cork again was transferred to Cook County. She was admitted directly into the pediatric intensive care unit (PICU), where she had been admitted previously. Cork had difficulty breathing, tachycardia (fast heart rate), high blood pressure and nasal flaring. ABG tests showed continuing respiratory problems. Cork was observed that evening.
On May 4, 1991, at 11 a.m., Cook County physicians attempted to intubate Cork, but were unsuccessful due to resistance in her trachea, allegedly from stenosis, an internal tracheal obstruction, created by scarring from her previous tracheostomy. Doctors administered a muscle relaxant that paralyzed Cork, allowing her to be ventilated. Cork's oxygen saturation level dropped to 40% while doctors attempted to intubate her. Surgical, preoperation and postoperation notes all stated that the intubation tube was blocked by a stenosis.
Cork was taken to the operating room at 1 p.m. for an emergency tracheostomy. Doctors attempted to insert a number of tracheal tubes in successive sizes ranging from large to small, but had difficulty inserting the tube further into her trachea. Doctors also had difficulty "bagging" Cork to keep her oxygenated because of an obstruction distal (further down from) the tracheal tube. "Bagging" is the process of manually ventilating a patient with a face mask and an "Ambu" bag, or by attaching the bag to the endotracheal tube.
During the tracheostomy, Cork's oxygen saturation level had dropped to 40%, resulting in brain damage. Cork died on May 8, 1991. Although the operating room record sheet for May 4, 1991, listed preoperative and postoperative diagnoses of stenosis, no stenosis was found during the autopsy.
On April 10, 1992, plaintiff filed a two-count complaint against defendant, based upon the allegedly negligent medical care given to Cork in April and May 1991. This case initially was tried in January 1996, resulting in a jury verdict in favor of defendant. As stated previously, this court reversed the verdict and remanded for a new trial based on improper argument of defense counsel and discovery violations. The case was retried in May 2001. The following evidence pertinent to the disposition of this appeal was adduced at retrial.
Dr. Madelyn Kahana, a pediatric intensivist, specializing in pediatrics, anesthesiology and critical care, testified as an expert witness for plaintiff. Over defendant's Rule 213(g) objection, Dr. Kahana testified that on May 3, 1991, Cork presented to Cook County with a tracheal obstruction. Cook County delayed the establishment of her airway and, once the decision had been made to place an endotracheal tube, it was done without supervision, in the wrong place, by people who were inexperienced. According to Dr. Kahana, Cork died due to a lengthy period of hypoxia, or lack of oxygen. She testified, "at best, most of the night [on May 3], a second year pediatric resident [was] watching her; that he was assisted by a first year surgical resident and that *** was insufficient expertise to recognize the escalation of her symptoms." Defendant moved to strike Dr. Kahana's testimony for violating Rule 213(g) with respect to the lack of supervision during the first and second admissions. The circuit court directed plaintiff's counsel to retract Dr. Kahana's statements. The court stated, "[y]ou need to clear this up because this is a problem. I read through her 213 [deposition]. Nothing like this is in here." Dr. Kahana explained that Dr. Peter Bridges, a first-year resident, monitored Cork throughout the night, but she noted repeatedly his failed attempts from 8:30 p.m. to 11:30 p.m. to insert an arterial line to measure carbon dioxide levels. Defense counsel objected based on a motion in limine barring plaintiff from introducing evidence relating to the inability of Dr. Bridges to start an arterial line. The circuit court sustained defendant's objection. Dr. Kahana testified it was not inappropriate for a resident to be unable to insert an arterial line. She clarified that the fact a resident was watching the patient overnight on May 3 was not a deviation from the standard of care.
Dr. Kahana testified that Dr. Bridges had ordered an x ray at 9:45 a.m. on May 4 to rule out airway narrowing or stenosis. At 10 a.m., there was sufficient time to bring Cork to the operating room so that an airway management specialist could perform a bronchoscopy to determine the cause for her labored breathing. The 11 a.m. ABG test result was abnormal, which reflected an inability to remove carbon dioxide in the face of continued difficulty breathing.
Dr. Kahana did not criticize the failure to diagnose the tracheal stenosis; rather, she was critical of the failure to have an intervention to treat the stenosis. In Dr. Kahana's opinion, the standard of care required that Cork should have been taken to the operating room at 7 a.m. on May 4. Severe breathing problems were noted at 7:30 a.m., but there was no intervention until noon. Dr. Kahana testified that, by the time Cork had the emergency tracheostomy, her brain was damaged irreversibly.
Prior to Dr. Kahana's cross-examination, plaintiff's counsel asked her if she had criticism with respect to a lack of supervision for the second admission, with the exception of the intubation on May 4, to which she replied, "[t]hat would require a bit of an explanation." Defendant moved for a mistrial. The court noted outside the presence of the jury that Dr. Kahana's opinion with respect to lack of supervision was not disclosed pursuant to Rule 213(g). During the hearing in chambers, Dr. Kahana noted that her new opinion "doesn't play a large role in what happened to this child because they still had time to do something about her care that morning when she was seen by more senior people." The court reiterated that Dr. Kahana's opinion was a surprise, but denied defendant's motion for a mistrial.
The circuit court then attempted to remedy the Rule 213(g) problem by asking Dr. Kahana in front of the jury, "[a]t the time you disclosed your opinions and gave your deposition, you had no criticism of Cook County Hospital for its failure to supervise its residents on May 3rd from the time of admission until 12 o'clock the next day, is that correct?" Dr. Kahana responded, "[t]hat's correct."
Defendant also moved to strike Dr. Kahana's testimony based upon the Rule 213(g) violation. Following further argument on defendant's motion, the court stated to plaintiff's counsel that he was supposed to have cleared up the disclosure of Dr. Kahana's new opinion, but failed to do so. It is unclear from the record whether the court ruled on defendant's motion to strike Dr. Kahana's testimony.
On cross-examination, Dr. Kahana testified that Cork had aspirated gastric contents that could result in significant injury to lung sacs and tissue. Dr. Kahana agreed that Cork had pneumonia, empyema and ARDS during her first admission to Cook County. Dr. Kahana stated that patients are at an increased risk for difficulties during intubation if they have ARDS because during instrumentation of the airway, the patient may become hypoxic or a bronchospasm could develop. Dr. Kahana then explained that Cork may have been in the recovery phase of ARDS during the second admission, but she believed that ARDS and bronchospasm did not cause the hypoxia which occurred during the intubation.
Defendant had moved in limine to bar Dr. Kirschner from testifying that the efforts at intubating on May 4 failed because Cork had a tracheal stenosis. Defendant argued that Dr. Kirschner did not find any evidence of a tracheal stenosis in the autopsy he performed on May 9, 1991, and did not have the expertise to testify with respect to what doctors would have seen had they performed a bronchoscopy. The circuit court heard voir dire testimony as to Dr. Kirschner's experience outside the presence of the jury and denied defendant's motion in limine, finding that any lack of experience went to the weight of the testimony.
Dr. Kirschner then testified before the jury on direct examination that his opinions remained the same as when he testified in the first trial. Dr. Kirschner's external examination showed evidence of a tracheostomy and a previous tracheostomy scar. There was no evidence of a stenosis at the time of the autopsy, but there was a previous functional stenosis based upon a "very marked inflammation of the trachea." The functional stenosis caused hypoxic encephalopathy. Dr. Kirschner further testified that a bronchoscopy on May 3, 1991, would have visualized the presence of the stenosis and that neither pneumonia nor empyema contributed to Cork's death.
On cross-examination, Dr. Kirschner testified that the cause of death was the encephalopathy as a consequence of injuries Cork sustained in March 1991. Although Dr. Kirschner's death certificate noted that the immediate causes of death were anoxic encephalopathy and hanging, Dr. Kirschner was precluded from testifying about the hanging. The death certificate also noted that pneumonia with empyema was a significant condition contributing to the cause of ...