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Estate of Nemirow v. University of Chicago Hospitals

October 7, 2008

ESTATE OF HELENE S. NEMIROW BY THE ESTATE ADMINISTRATOR LAWRENCE H. NEMIROW, PLAINTIFF,
v.
THE UNIVERSITY OF CHICAGO HOSPITALS, THE UNIVERSITY OF CHICAGO, AND DOES 1-50, DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Estate of Helene S. Nemirow ("Nemirow") by estate administrator Lawrence H. Nemirow filed a first amended complaint for medical negligence against defendants McKay McKinnon, M.D. ("Dr. McKinnon"), the University of Chicago Hospitals, the University of Chicago and Does 1-50. Plaintiff has voluntarily dismissed the claims against Dr. McKay McKinnon. The University of Chicago Hospitals (the "Hospital") and the University of Chicago have filed a motion to dismiss plaintiff's first amended complaint. For the reasons set forth below, the Court denies the motion to dismiss.

I. Background

For purposes of a motion to dismiss, the Court takes as true the allegations in plaintiff's complaint.

Nemirow sought treatment at the University of Chicago Hospitals because she wanted to have excess skins growths removed. On July 19, 2006, she consulted with Dr. McKinnon, who was the Chief of the Plastics Department at the Hospital. Dr. McKinnon "performed a rough examination" on Nemirow that caused Nemirow to develop a hematoma. The hematoma became infected. Nemirow seems to have stayed at the Hospital until July 22, 2006, when she was discharged to Warren Barr Pavilion nursing home for treatment of the infection. Nemirow stayed at Warren Barr Pavilion until August 1, 2006, when Warren Barr discharged her.

Nemirow returned to the University of Chicago Hospital emergency room the same day. She had an elevated white blood cell count. Nemirow spent 24 hours at the University of Chicago Hospital emergency room, but the Hospital refused to admit her.

From August 2, 2006 until August 23, 2006, Nemirow was treated at the Lakeview Nursing Home. The Lakeview Nursing Home treated Nemirow for an open wound at the site of the hematoma and for infection. Lakeview Nursing Home discharged Nemirow on August 23, 2006.

That same day, Nemirow returned to the University of Chicago Hospital, where she remained until her death on September 14, 2006. Plaintiff alleges that defendants' treatment of Nemirow failed to conform to the standard of care. Specifically, plaintiff alleges that defendants failed to change the antibiotics they prescribed Nemirow when the antibiotics they had prescribed failed to have the desired effect. Plaintiff alleges that defendants failed to monitor properly Nemirow's narcotics doses. Plaintiff alleges that defendants failed to perform a surgical intervention with respect to Nemirow's infected hematoma. Plaintiff alleges that defendants failed to monitor Nemirow's cardio-pulmonary status. Plaintiff further alleges that these failures proximately caused Nemirow's death. Plaintiff alleges that the University of Chicago and the University of Chicago Hospitals are vicariously liable for the failures of their employees.

When plaintiff filed the first amended complaint, it attached a physician's report and certificate of medical malpractice. The report states:

I certify as follows:

I am licensed to practice medicine in all of its branches in the State of Indiana. I am board certified in internal medicine. I am familiar with the issues of care and treatment involved herein. I devote 75% of the time, that I spend in either medical practice or in teaching, to the type of medicine at issue herein, and I have familiarity with the standard of care in Illinois on the matters at issue herein. I am qualified by experience, education and training with the standard of care, methods, procedures and treatments relevant to the allegations at issue in this case, and I have practiced or taught in this field within the past five years. I have read and I am familiar with the relevant Medical records, the representations of counsel and/or facts herein, and for the reasons set forth herein below, I hold the opinion to a reasonable degree of medical certainty that the defendant, University of Chicago, by and through the actions of its agents, deviated from the applicable standard of care in this matter in July and August, 2006. The deviation(s) by all defendants below proximately caused or contributed to the plaintiff's death and accordingly a reasonable and meritorious basis for suit exists.

The decedent suffered from a condition known as neurofibromatosis which is characterized in part by scattered skin growths. She was intending to have plastic surgery on some of this. She also suffered from a bleeding diathesis of unknown etiology. She did suffer a bleed into one of the skin lesions secondary to handling by defendant. This then became an infected hematoma. The records clearly indicate by multiple treaters that the infection existed but the manner in which the infection was treated is the basis for this suit. In essence the infection was treated by the defendant by the use of antibiotic medications which were not having the desired effect however. When the matter did not clear up the defendants continued to use antibiotics and refused to admit her into the hospital for closer monitoring in the face of unending fever, lower extremity and back pain and high white cell count. At no time was there any surgical intervention for the infection. When she was finally admitted into the hospital her narcotics dosages were not properly regulated as she exhibited persistent mental status changes. Ultimately she died from a cardio-pulmonary event, central respiratory failure and sepsis secondary to all of the above negligent acts of commission and/or omission acting either in singularity or in combination with each other.

The University of Chicago emergency room staff also participated in her care during the times aforesaid and they also refused to admit her into the hospital for the care set forth above but instead discharged her to a nursing care facility. Neither defendant warned plaintiff that she may be suffering from a life threatening condition when a reasonably prudent health care provider would have so warned. The absence of this warning served to prevent decedent from seeking ...


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