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Karen Graham, Independent Administrator of the Estate of Marilee Graham, Deceased v. Northwestern Memorial Hospital

February 3, 2012


Appeal from the de bonis non Circuit Court of Cook County. No. 09 L 13009 The HonorableThomas E. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

JUSTICE GARCIA delivered the judgment of the court, with opinion.

Justices Lampkin and Palmer concurred in the judgment and opinion.


¶ 1 Following a jury verdict in favor of the plaintiff, the circuit court granted a new trial on the issue of damages only. Northwestern Memorial Hospital (Northwestern Memorial) was found liable for the suicide of the plaintiff's decedent, Marilee Graham, and the jury awarded the plaintiff $490,196. The jury found Marilee 49% at fault, reducing the damages award to $250,000. On the plaintiff's posttrial motion, the circuit judge ruled that he erroneously instructed the jury on contributory negligence and that defense counsel engaged in prejudicial conduct. Under an abuse of discretion review, we conclude reasonable minds could differ on the circuit court's decision to grant a new trial based on the erroneous instruction and affirm that ruling. However, the record fails to support the conclusion that the erroneous instruction impacted the damages award; we remand for a new trial on all issues.


¶ 3 Marilee Graham was a patient in the psychiatric unit of Northwestern Memorial when she took her own life on August 6, 2004. She was a 49-year-old woman with a history of mental illness and had attempted suicide on previous occasions. At 4:30 p.m. on August 5, Chicago police brought Marilee to Swedish Covenant Hospital (Swedish Hospital). The police had been called after her family feared Marilee had attempted suicide by ingesting Klonipin (pills containing benzodiazepine) and consuming a bottle of wine. Before taking the pills with the wine, Marilee wrote goodbye e-mails to her sister and her boyfriend. Upon arrival at Swedish Hospital, Marilee was combative, crying, and saying she wanted to die. Doctors placed Marilee in physical restraints. Marilee was placed on medications to calm her mood. Swedish Hospital notified Marilee's long-time psychiatrist Dr. Fabian Carbonell of her condition, including her possible attempted suicide. Marilee refused admission to the hospital by consent. Doctors at Swedish Hospital concluded that Marilee was a danger to herself and, with Dr. Carbonell's concurrence, admitted Marilee against her will. Following her involuntary admission, Dr. Carbonell arranged for Marilee to be transported that same day to Northwestern Memorial for in-patient treatment.

¶ 4 During Marilee's transfer to Northwestern Memorial by ambulance, she remained in restraints. The admitting nurse at Northwestern Memorial, Oscar Perry, spent an hour with Marilee. He concluded that she no longer posed a danger to herself and released her from restraints. At this time, Marilee was irritable, yet cooperative. Dr. Shane Spicer, a psychiatric resident at Northwestern Memorial, evaluated Marilee on the night of August 5. Dr. Spicer concluded that Marilee did not pose an imminent risk of harming herself. At approximately midnight, Marilee went to sleep. The staff allowed Marilee to rest overnight undisturbed as part of the typical treatment plan for psychiatric patients. A mental health worker took her vital signs at 6 a.m. At 6:27 a.m., Marilee awoke for the day.

¶ 5 At 11 a.m. on August 6, Dr. Carbonell, along with Northwestern Memorial nurse Jason Brigham, examined Marilee. At that time she was hostile and combative. Dr. Carbonell found it difficult to engage her in conversation. Marilee stated she wanted to leave the hospital and pounded on a window. She spit at her caretakers and threw a plastic container in Dr. Carbonell's direction. She tried to bite one of the staff members. She was screaming and using profanity.

¶ 6 Marilee told Dr. Carbonell she was upset about being taken off her Hepatitis C medication, Interferon. She had the unfounded fear that without Interferon she faced an imminent and painful death. Dr. Carbonell noted that Marilee's mood went from very angry to very sad. She was thin, disheveled, and had poor psychomotor agitation. When attempts to calm her failed, Dr. Carbonell ordered Marilee be placed in restraints. He instructed nurse Brigham to administer the antipsychotic drug, Haldol, Lithium, for her bipolar disorder, and Atavan, to calm her impulsive behavior.

¶ 7 During this exam, Marilee denied having thoughts of suicide. Her chief concern was to leave the hospital. When called to testify as an adverse witness, Dr. Carbonell agreed that Marilee was "falling apart mentally and emotionally" and was "in severe emotional pain" on the morning of August 6. Marilee told Dr. Carbonell that she was sorry that she did not die the previous day. Dr. Carbonell certified Marilee for involuntary commitment; he found she posed a danger to herself, had impaired judgment, and required hospital staff supervision to keep her safe. Dr. Carbonell ordered Marilee to remain secluded and in restraints and directed the staff to maintain continuous visual observation. The order had an expiration time of 3 p.m., but the attending nurses could extend the expiration time upon consultation with a doctor. Dr. Carbonell expected nurse Brigham to reassess Marilee and release her from restraints when appropriate.

¶ 8 Consistent with Dr. Carbonell's testimony regarding Marilee's condition at 11 a.m., nurse Brigham noted that Marilee was "assaultive, restless, crying, and threatening." An entry on Marilee's chart at 11:15 a.m. by another staff member noted that Marilee was "restless and crying" and pulling at her restraints. At 11:30 a.m., a staff member wrote that Marilee was restless and crying and attempting to bite her left wrist restraint. At 11:45 a.m. a similar entry was made that Marilee was restless and pulling at her restraints. During an evaluation around noon by nurse Brigham, Marilee stated she did not want to hurt herself. Nurse Brigham removed Marilee's restraints. She remained quiet for the remainder of nurse Brigham's shift, which ended at 3 p.m.

¶ 9 The staff continued with visual observations of Marilee at 15-minute intervals. At approximately 3 p.m., Marilee complained of stomach pain and cramps. She was awake in her room from 3:30 to 9 p.m.. Darryl Calvin, a mental health worker, checked her every 15 minutes between 4 and 8:45 p.m. That evening, nurse Jane McKeon was assigned to care for Marilee, along with eight or nine other patients. She did not have independent recollection of her interactions with her patients that evening, but she testified that between 4 and 4:15 p.m., it was her practice to introduce herself to the patients, including Marilee. She would have asked Marilee how she was feeling, whether she felt like hurting herself or anyone else, and if she needed anything.

¶ 10 At 4:15 p.m., nurse Gloria Johnson saw Marilee on the telephone as she passed through the nurses' station. At approximately 5 p.m., nurse McKeon administered medication to Marilee. It was her custom and practice to re-introduce herself when administering medication, during which she would engage in a brief conversation with the patient. She would have watched Marilee closely to make sure she swallowed the medication. Marilee was in her room alone most of the evening. She refused to eat dinner. Sometime between 6 and 7 p.m., nurse McKeon saw Marilee near the phones by the nurses' station, but she could not recall whether Marilee was talking on the phone. Nurse McKeon testified that a patient being out of her room and talking on the telephone would be a positive sign.

¶ 11 At 8:45 p.m., mental health worker Calvin performed a visual observation of Marilee. Marilee nodded her head at Calvin. Between 9 and 9:45 p.m., mental health worker Paulette Carter performed routine checks of Marilee. Carter testified that Marilee was sleeping during this period. At 9:20 p.m., nurse Johnson passed Marilee's room and saw her lying on her stomach asleep. Carter saw Marilee alive in her room between 9:40 and 9:43 p.m.. At 9:45 p.m., nurse McKeon entered Marilee's room and found her hanging from a hinge on the bathroom door with a bed sheet tied around her neck. Several nurses cut the sheet and carried Marilee to the bed. They were unable to resuscitate her.

ΒΆ 12 At trial, both fault and damages were contested. Over the plaintiff's objection, the judge instructed the jury on contributory negligence. The judge told the jury that the damages award would be reduced by the percentage of fault it assigned to Marilee. He also informed the jury that if it found Marilee more than 50% negligent, the defendant would be found not liable. The jury found Marilee 49% at fault and awarded $490,196 in damages. The fault assigned to Marilee reduced the award ...

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