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Eid v. Loyola University Medical Center

Court of Appeals of Illinois, First District, Fifth Division

February 24, 2017

LISA EID and MOHAMMED EID, as Special Administrators of the Estate of Miranda Eid, Deceased, and LISA EID, Individually, Plaintiffs-Appellants,
v.
LOYOLA UNIVERSITY MEDICAL CENTER, Defendant-Appellee.

         Appeal from the Circuit Court of Cook County. No. 13 L 975 The Honorable Thomas L. Hogan, Judge Presiding.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.

          OPINION

          LAMPKIN JUSTICE.

          1 After the death of Miranda Eid, a minor, her parents Mohammed and Lisa Eid brought suit against Loyola University Medical Center (Loyola), alleging negligent medical treatment of Miranda following her pacemaker replacement surgery. Mrs. Eid also sought damages for reckless infliction of emotional distress based on Loyola's nurses leaving medical tubing in place when Miranda's body was released for burial. The jury returned a verdict in favor of Loyola, and Mr. and Mrs. Eid appealed.

         ¶2 On appeal, Mr. and Mrs. Eid argue (1) the jury's verdict in favor of Loyola on the claims of medical negligence and reckless infliction of emotional distress was against the manifest weight of the evidence; (2) the circuit court erroneously upheld Loyola's claim of privilege under section 8-2101 of the Code of Civil Procedure (known as the Medical Studies Act) (735 ILCS 5/8-2101 et seq. (West 2012)) for information that was generated for the use of Loyola's peer review committee when a designee of that committee, pursuant to his authority under Loyola's bylaws, began an investigation of Miranda's treatment and instructed another member of the committee to assemble information concerning the incident; (3) the circuit court improperly instructed the jury on the law concerning the claim of reckless infliction of emotional distress; and (4) defense counsel's alleged improper remark during closing argument confused the jury, and the additional instructions the circuit court gave the jury did not cure the alleged confusion.

         ¶3 For the reasons that follow, we affirm the judgment of the circuit court.

         ¶4 I. BACKGROUND

         ¶5 This appeal arises from the death of a two-year-old girl during her recovery from surgery that replaced her pacemaker. Miranda Eid was born in 2010 with a chromosomal abnormality that resulted in several anatomical defects, including an inverted heart structure and dextrocardia, a condition in which the heart is located in the right, rather than the left, chest. Miranda also had an atrioventricular block, a condition in which the impulses from the upper chambers of the heart are blocked from the lower chambers. To fix the block, Miranda underwent surgery when she was six days old to implant a pacemaker.

         ¶6 Two years later, Miranda needed a new pacemaker. On February 10, 2012, she had surgery at Loyola to replace the old pacemaker with a new one. During the surgery, a small laceration occurred on the surface of her heart. The laceration was sutured with a single stitch. Prior to closing the skin, the surgeons placed a tube in Miranda's chest to drain fluid. At the conclusion of the surgery, Miranda was stable and the surgeons advised Mr. and Mrs. Eid that the procedure had been successful.

         ¶7 Miranda was transferred to the pediatric intensive care unit at 2 p.m. A few hours later, Miranda became agitated. Nurse Matz gave Miranda a small dose of Versed, a sedative narcotic, to help her relax, as well as a fentanyl drip to help with any pain. About 8:20 p.m., nurse Ghera reported that Miranda appeared fussy and uncomfortable. Nurse Ghera then administered a second small dose of Versed. About 8:35 p.m., nurse Ghera noticed that Miranda's breathing became shallow and irregular. Nurse Ghera immediately called nurse Matz to the room to assess any changes in Miranda's condition since nurse Matz had administered the earlier dose of Versed.

         ¶8 Nurses Matz and Ghera began giving Miranda oxygen at approximately 8:45 p.m. and called a code identifying an emergent situation with a patient. A code team arrived in less than a minute. Nurses Matz and Ghera administered medications and blood, performed compressions and tests, and protected Miranda's airway. Over the next two hours approximately 10 to 15 nurses, residents and physicians conducted tests and worked to diagnose Miranda's adverse symptoms and resolve the problem.

         ¶9 Blood was drawn around 9:30 p.m. to evaluate Miranda's blood gas levels. The blood draw was tested three times. The first test showed levels so low they were unreadable and the next two tests showed abnormally low levels. Extremely low hemoglobin levels could be one indication of internal bleeding. The treating physicians, however, believed the test results were inaccurate and most likely the result of a sampling error.

         ¶ 10 A chest x-ray, ultrasound, and echocardiogram were done, and the physicians concluded that there was no evidence of blood or fluid around the heart. When a doctor checked Miranda's discharge tube and a nurse felt Miranda's stomach, the chest tube output was low and Miranda's chest was soft. Those findings corroborated the results of the image tests, which indicated no evidence of internal bleeding or fluid or blood around the heart.

         ¶ 11 The doctors decided not to perform a pericardiocentesis because there was no indication of fluid in Miranda's chest that needed to be withdrawn. The doctors also decided not to place Miranda on an extracorporeal membrane oxygenation (ECMO) machine because staff had already been performing chest compressions for over 40 minutes and the machine would have had little chance of being effective by the time a team was mobilized. Staff continued with resuscitation efforts until it became clear those efforts were futile. Miranda was declared dead at 10:46 p.m. on February 10, 2012.

         ¶ 12 Mr. and Mrs. Eid were informed of Miranda's death. A doctor escorted the Eids to Miranda's room, and Nurse Ghera stayed with them to provide support. Mrs. Eid told the doctor and nurse Ghera that Mrs. Eid wanted the tubes removed from Miranda's body. The doctor said the tubes would be taken care of after the medical examiner called regarding an autopsy. Nurse Ghera said she would remove all the tubes she could take out, bathe Miranda, and carry her to the morgue personally.

         ¶ 13 According to Loyola's protocol, Miranda's death was reported to the medical examiner, who had the option to either order or waive an autopsy. If the medical examiner waived the autopsy, then all the tubes, dressings and tapes were supposed to be removed from the body unless a physician requested otherwise because a private autopsy would be conducted. Based on her experience, nurse Ghera testified that every child who died within 24 hours of admission was sent to the medical examiner for an autopsy. Nurse Ghera learned that the medical examiner had waived the autopsy but could not recall when she learned that information. Furthermore, the Eids declined a private autopsy when Miranda's primary pediatric cardiologist discussed the matter with them. After Mrs. Eid advised nurse Ghera that the private autopsy had been declined, nurse Ghera spoke with her supervisor, nurse Maturin. However, nurse Maturin instructed nurse Ghera not to remove the tubes due to some uncertainty regarding whether an autopsy would be conducted at another institution. Consequently, nurse Ghera removed only the smaller tubes as allowed by the protocol concerning autopsies. Nurse Ghera placed white cloth tape over the endotracheal tube and washed Miranda's body with warm water. Then nurse Ghera wrapped Miranda's body in baby blankets, placed her in a plastic body bag, and carried her to the morgue around 4 a.m.

         ¶ 14 The next day, Miranda's body was transferred to a funeral home and placed in refrigeration. To respect the Muslim religious traditions, the male funeral director did not uncover or inspect the body. One day later, Mrs. Eid, female friends and family members, and female ritual washers arrived at the funeral home to perform a ritual washing. Mrs. Eid was crying as Miranda's body was removed from the body bag. Then Mrs. Eid saw that medical tubes were still in place and shouted that nurse Ghera had lied to her. The ritual washers removed a nose tube, and there was a little blood on it. When the washers removed the mouth tube, blood "began gushing" from Miranda's mouth. Mrs. Eid fell to her knees, became hysterical and cried uncontrollably. The washers stuffed gauze into Miranda's mouth to stop the bleeding. No attempt was made to remove other tubes.

         ¶ 15 A few days later, Mrs. Eid contacted Loyola and demanded to speak to nurse Ghera about the unremoved tubes. Nurse Ghera explained that her supervisor had instructed her not to remove the tubes, so she removed what she could, washed Miranda, and carried her to the morgue. Mrs. Eid said she did not believe her.

         ¶ 16 Kathleen Ostrowski was Loyola's risk manager and a member of Loyola's Medical Care Evaluation and Analysis Committee (MCEAC), which conducts peer reviews of hospital deaths to reduce morbidity and mortality. The morning after Miranda's death, Ms. Ostrowski began contacting individuals to preserve records. Ms. Ostrowski then paged Dr. Robert Cherry, the chairperson of the MCEAC, to advise him of the incident. Dr. Cherry returned Ms. Ostrowski's page at 10:51 a.m. and instructed her to investigate the incident on the MCEAC's behalf from a quality perspective.

         ¶ 17 The Eids sued Loyola for medical negligence and reckless infliction of emotional distress. During discovery, Loyola refused to produce 13 pages of documents, claiming privilege under the Medical Studies Act. To support their claim of privilege, Loyola submitted the affidavits of Dr. Cherry and Ms. Ostrowski. Dr. Cherry averred that he was very familiar with Loyola's bylaws, rules, and polices. He explained that the MCEAC typically met once a week and was responsible for evaluating the quality of patient care with the goals of reducing morbidity and mortality and improving patient care. To carry out these responsibilities, the MCEAC directed and empowered one or more individuals to assemble information about an incident and the areas of specialty involved and to report that information back to the MCEAC for its use in evaluating and improving the quality of patient care.

         ¶ 18 Dr. Cherry stated that, as the chairperson of the MCEAC, he frequently, and within the scope of his authority and responsibilities, directed and empowered risk manager Ms. Ostrowski and other designees of the MCEAC to perform these duties. Typically, the risk manager or other MCEAC designee would contact Dr. Cherry to request this directive after learning about the occurrence of an event that could have potential for MCEAC review. Dr. Cherry then would determine whether an MCEAC investigation was warranted and give the directive if indicated. Dr. Cherry averred that this protocol was followed when Ms. Ostrowski contacted him about Miranda's case, he determined that an investigation was warranted, and he then directed Ms. Ostrowski to assemble information for the MCEAC s use. Ms. Ostrowski's affidavit was consistent with Dr. Cherry's affidavit.

         ¶ 19 The trial court upheld Loyola's claim of privilege under the Medical Studies Act for the disputed 13 pages of documents. The trial court stated it had reviewed Loyola's bylaws extensively and noted that section 2.1 of the medical staff bylaws specifically indicated that the chief medical officer of the hospital was permitted to begin an investigation. At the time of the incident at issue here, Dr. Cherry was the ...


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