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Nadine Sekerez, Special Administrator of the Estate of Zarko v. Rush University Medical Center ) F/K/A Rush-Presbyterian-St. Luke's

June 30, 2011


Appeal from the Circuit Court of Cook County, Illinois No. 2004 L 011047 Honorable Donald J.Suriano Judge Presiding.

The opinion of the court was delivered by: Justice Salone

JUSTICE SALONE delivered the judgment of the court, with opinion. Justices Pucinskiand Sterba concurred in the judgment and opinion.


Plaintiff, Nadine Sekerez, special administrator of the estate of the decedent, Zarko Sekerez, appeals from orders of the circuit court which: (a) granted a directed verdict in favor of defendants Rush University Medical Center, f/k/a Rush-Presbyterian-St. Luke's Medical Center (Rush), Dr. Irene Silva (Silva), Dr. David Schlieben (Schlieben), Dr. Joanna Maurice (Maurice), and Dr. Julie Wendt (Wendt), on medical battery; (b) granted a directed verdict in favor of Maurice on medical negligence; and (c) entered judgment on the jury's verdict on medical negligence in favor of Rush, Silva, Schlieben and Wendt. For the following reasons, we reverse and remand for a new trial.


Factual Background In December of 1998, decedent was diagnosed with chronic lymphocytic leukemia (CLL), a terminal cancer. He underwent treatment and at times was hospitalized for illnesses relating to CLL. On June 20, 2001, decedent entered the emergency room at Rush complaining of constipation, dehydration and pain from shingles. Rush, a teaching hospital, uses a supervising doctor, the attending physician, to supervise the work of fellows, residents, and interns. The attending physician during the relevant times of decedent's hospitalization was Dr. Silva. During that time, Dr. Silva supervised Drs. Maurice and Wendt, both interns, and Dr. Schlieben, a resident.

Decedent did not sign a general consent form for treatment upon his admission to Rush. However, during the time of his hospitalization, Rush had a general consent policy which stated in pertinent part:

"1. Purpose of Consent

Hospital personnel have a legal duty to refrain from treating the patient unless the treatment has been authorized by the patient. Similarly, the patient has a right to refuse to authorize treatment. A consent is obtained from a patient for treatment in order to protect the physician, the nurse, and the hospital against claims of unauthorized treatment. Any treatment or procedure which poses a risk to the patient should be authorized in writing after the risks and complications have been explained to the patient. A consent given by a patient after such an explanation is commonly referred to as 'informed consent.'

2. Verbal Consents

A patient may verbally consent to treatment or sign a consent form authorizing treatment. A verbal consent should be documented in the patient's medical record. Both a verbal and written consent are legally effective to authorize treatment; however, it is possible that a patient giving a verbal consent will later claim that he/she did not consent. Therefore, verbal consents may be accepted to authorize treatments posing no risk to the patient (e.g., routine diagnostic procedures, including physical examinations, the taking of blood samples, routine diagnostic x-rays and laboratory tests)."

After decedent was admitted to Rush, the doctors learned that he suffered from bacterial pneumonia. Decedent was subsequently placed in the respiratory care unit, a division of the intensive care unit. Drs. Maurice and Schlieben examined decedent after his admission. They were aware that decedent had various risk factors which made him more susceptible to the development of deep vein thrombosis (DVT) including his age, terminal cancer diagnosis, high white blood cell count, multiple infections and the fact that his illnesses confined him to bed. Dr. Maurice prescribed Lovenox, a blood thinner, to guard against DVT. She wrote the order for a 30-milligram preventative dose, to be administered intravenously twice per day.

Decedent received the first dose of Lovenox on June 21, 2001, at 6 a.m. Approximately one hour later, a nurse noted in decedent's chart that he stated "I don't need blood thinners." The nurse further noted in decedent's chart that Dr. Maurice was notified of the patient's refusal of treatment. At that juncture, the Lovenox treatment was discontinued and decedent did not receive any further injections of Lovenox.

A chest CT scan was taken the following day at approximately 6:30 p.m., and there was no evidence of pulmonary embolism (PE)*fn1 . On June 22, 2001, a nurse informed Dr. Wendt, who was the doctor on call, that decedent's oxygen levels were decreasing. In response, Dr. Wendt placed the decedent on 100% oxygen, but his breathing remained distressed. She then ordered that decedent be placed on BiPap, a noninvasive ventilation treatment. Dr. Wendt subsequently discontinued the order for 30 milligrams of Lovenox and entered a new order for a twice daily dose of 70 milligrams, which was a therapeutic dose. Pursuant to Dr. Wendt's order, decedent received 70 milligrams of Lovenox at 10 a.m. and a second dose at 9 p.m. According to defendants, decedent's creatine clearance level was calculated prior to the Lovenox treatment and was always above 30.

The record indicates that Dr. Maurice left work at some point after she ordered the Lovenox treatment for decedent on June 21, 2001, and did not return until June 23, 2001. Upon her return, Dr. Maurice discussed decedent's treatment with Drs. Schlieben and Silva, and they agreed to continue the therapeutic dose of Lovenox. Thereafter, decedent received a dose of Lovenox at 9 a.m., but he refused the second dose. Decedent also refused Lovenox on June 24, 2001.

As the day passed, decedent's oxygen levels continued to worsen and his blood pressure dropped significantly. He became unresponsive and was intubated for breathing assistance. Decedent subsequently experienced a massive intracranial brain hemorrhage and Dr. Maurice reduced his Lovenox dosage to 40 milligrams once per day. An order was issued to discontinue the Lovenox on June 25, 2001. The decedent subsequently died on June 29, 2001.

The autopsy results revealed that decedent suffered from a cerebral hemorrhage caused by his invasive cancer and multiple infections that led to septic shock, respiratory failure and a drop in blood pressure. The autopsy results did not show that decedent suffered from PE.

Procedural Background

On September 29, 2004, plaintiff filed a malpractice suit against Rush and each of the doctors individually, alleging that they were negligent in administering Lovenox against the decedent's stated wishes. Schlieben, Wendt and Maurice filed a motion for summary judgment on May 13, 2008, which the trial court denied. Motions in limine were also filed prior to trial, and the trial court subsequently barred the nurses' conduct as a triable issue. Several days before trial, plaintiff filed a motion to amend the complaint, seeking to add a claim for medical battery against all defendants based on a failure to obtain consent.

Defendants responded by filing a motion under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2008)) to dismiss the medical battery claims. The trial court denied the motion, and the case proceeded to trial. After opening statements, defendants renewed their motion to dismiss, which was again denied. The trial court subsequently entered a ruling that plaintiff could ask each doctor whether Rush's consent policy required a written consent for the administering of Lovenox. Defendants objected, arguing a violation under Supreme Court Rule 213 (eff. Jan. 1, 2007), which the trial court overruled. However, the trial court entered a ruling that defendants could "opine with all their witnesses that Rush's consent policy did not require a consent to administer Lovenox" over plaintiff's objection. The jury trial then commenced.

Trial Proceedings

Dr. Gerald Marti testified as an expert witness on plaintiff's behalf. He was hired by decedent's family to investigate the circumstances surrounding his death. Dr. Marti was not a board-certified physician, but was employed by the Food and Drug Administration. He opined that the Rush dosing card and the Physician's Desk Reference (PDR) established the standard of care for a patient in decedent's position. The purpose of the dosing card was to provide a guideline for doctors in calculating a patient's creatine clearance level, a measure of renal (kidney) functioning. The dosing card specifically provided guidelines for the administering of Lovenox and stated in relevant part:

"The elimination and half-lives*fn2 of both dalterparin and enoxaparin (Lovenox) are prolonged in patients with renal insufficiency; this is most marked in patients with a calculated CrCl [creatine clearance] of 30 ml/min or less.

Therefore, the use of low molecular-weight heparin (Lovenox) in patients with a calculated creatine clearance of 30 milliliters per minute or less is not recommended."

In Dr. Marti's opinion, after review of the hospital records and autopsy report, the administering of the four doses of Lovenox was the proximate cause of decedent's death. In reaching this conclusion, he noted that because decedent's CT scan did not indicate PE, the Lovenox treatment was unwarranted. Dr. Marti also determined that defendants deviated from the standard of care because they continued to order and increase the dosage of Lovenox despite the fact that decedent's creatine clearance levels fell to or below 30. His calculation was based on his review of decedent's medical records. However, Dr. Marti indicated that Dr. Maurice's initial order for 30 milligrams of Lovenox was consistent with the standard of care and was not a proximate cause of decedent's death.

Each of the defendant doctors was then called as an adverse witness by plaintiff.

Dr. Maurice testified first. She acknowledged the existence of the dosing card at Rush and its purpose for setting guidelines for doctors in the administering of Lovenox. However, she admitted that although she ordered a Lovenox treatment for the decedent, his creatine clearance level was never calculated. Dr. Maurice further testified that there was a consent policy at Rush, and she explained that routine diagnostics, like blood draws and physical X-rays, could be performed with a patient's verbal consent. She then testified, however, that the administering of Lovenox did not require consent. Dr. Maurice read into evidence an excerpt from Rush's consent policy which explained the purpose of consent: "Hospital personnel have a legal duty to refrain from treating the patient unless the treatment has been authorized by the patient. Similarly, the patient has a right to refuse to authorize treatment." Dr. Maurice admitted that there was no written or verbal consent in decedent's chart for the administering of Lovenox.

On cross-examination, Dr. Maurice testified that it was not customary practice and procedure at Rush to include the creatine clearance calculations in the patient's medical records. After examining the four separate doses of Lovenox that decedent received, she determined that his creatine clearance levels were never below 30. Dr. Maurice stated that she consulted with her supervisors before entering orders for Lovenox and other medications, and that she did not enter the last order for Lovenox. Dr. Maurice acknowledged that upon her return to work, several of the attending doctors asked her questions about the decedent.

Dr. Wendt testified next in plaintiff's case-in-chief. She testified that she commenced decedent's care after Dr. Maurice left work. Dr. Wendt ordered an increase in decedent's Lovenox dosage from 30 milligrams twice daily to 70 milligrams twice daily. Although it was noted in the medical records, Dr. Wendt stated that she was unaware that decedent had previously refused Lovenox. Additionally, she could not recall whether she reviewed decedent's CT scan which indicated no PE, but stated that she did not order another CT scan because of decedent's unstable condition.

Plaintiff then called Dr. Schlieben, who testified that on June 22, 2001, at approximately 7 a.m., he met with decedent. He further stated that his review of decedent's medical chart indicated that Dr. Wendt ordered an increase in the Lovenox dosage at 4:33 a.m. to be administered "stat." However, this treatment was not administered until 10 a.m. Dr. Schlieben admitted that he was aware of decedent's prior refusal of Lovenox and that decedent's CT scan did not indicate PE. He further testified that there are risks to administering Lovenox, including bleeding in the brain. Dr. Schlieben stated, however, that he calculated decedent's creatine clearance and it was above 30 prior to any adminstering of Lovenox.

Plaintiff next called Dr. Silva, who testified that, in her opinion, the standard of care for the issuance of Lovenox at Rush was to administer it as a treatment to patients who were admitted to the intensive care unit, were confined to bed, were older than 40 years old, and who were diagnosed with an underlying condition that carried a high risk for DVT. Rush and its doctors follow the dosing card for guidelines in administering Lovenox. Dr. Silva admitted that the CT scan taken on June 21, 2001, excluded the possibility of PE. She further indicated that a twice daily dose of 70 milligrams of Lovenox was a therapeutic or treatment dose while a twice daily dose of 30 or 40 milligrams was a preventative dose. Dr. Silva agreed with Dr. Wendt's order increasing the Lovenox dosage based on decedent's ...

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