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The Private Bank v. Silver Cross Hospital and Medical Centers

Court of Appeals of Illinois, First District, Fifth Division

December 15, 2017

THE PRIVATE BANK, as Guardian of the Estate of Raymond Reynolds III, a Disabled Person, and AMANDA LESSNER, Individually and as Guardian of the Person and Next Friend of Raymond Reynolds III, a Disabled Person, Plaintiffs,
SILVER CROSS HOSPITAL AND MEDICAL CENTERS, MICHELLE ALLING, MIDWEST RESPIRATORY, LTD., PHILIP LEUNG, M.D., ROBERT KOZIOL, D.O., MIDSTATE ANESTHESIOLOGISTS, LTD., ALLIED ANESTHESIA ASSOCIATES, S.C., HEDGES CLINIC, S.C., MICHAEL DEMAERTELAERE, EM STRATEGIES, LTD., and ANTHONY MURINO, D.O., Defendants Amanda Lessner, Individually and as Guardian and Next Friend of Raymond Reynolds III, a Disabled Person, Plaintiffs-Appellants; EM Strategies, Ltd., and Anthony Murino, D.O., Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 12 L 10705 Honorable Edward Harmening, Judge, presiding.

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



         ¶ 1 In this medical malpractice action against several defendants, plaintiffs alleged that hospital patient Raymond Reynolds III, suffered a cardiac arrest and catastrophic brain damage because, inter alia, defendant Dr. Anthony Murino delayed responding to an emergency call for treatment. Also, plaintiff Amanda Lessner, who was Reynolds's fiancée, alleged claims for loss of consortium and loss of a chance to marry.

         ¶ 2 Prior to trial, the court dismissed Lessner's loss of consortium and chance to marry claims based on her failure to establish a cause of action upon which relief may be granted. After the conclusion of plaintiffs' case at the jury trial, the trial court granted a motion for a directed verdict in favor of defendants Dr. Murino and his employer, EM Strategies, Ltd. (EMS), which managed the hospital's emergency department. The case proceeded to verdict as to several codefendants, who ultimately settled with plaintiffs and are not parties to this appeal.

         ¶ 3 On appeal, plaintiffs argue that (1) the trial court erred in granting the directed verdict because they presented circumstantial evidence from which the jury reasonably could have concluded that Dr. Murino delayed leaving the emergency room (ER) to treat Reynolds in the intensive care unit (ICU), (2) the trial court erred in barring evidence about EMS's medical malpractice insurance coverage, and (3) this court should recognize Lessner's claims for loss of consortium and loss of chance to marry because she and Reynolds were in a long-term committed relationship for many years and their scheduled wedding date was less than 20 days away when defendants' negligence prevented Lessner and Reynolds from marrying.

         ¶ 4 For the following reasons, we affirm the judgment of the Cook County circuit court.

         ¶ 5 I. BACKGROUND

         ¶ 6 In September 2010, Reynolds was suffering from severe pneumonia and was admitted to Silver Cross Hospital. His condition deteriorated, and he was transferred to the ICU. On September 22, an intubation procedure was performed on him, followed by a portable chest x-ray at 3:40 a.m., which was standard procedure. The digital X-ray image was transmitted to an offsite radiology service for interpretation.

         ¶ 7 According to the offsite service's computer automated time stamps of its electronic records, the offsite service received the X-ray at 3:52 a.m., and the radiologist opened the film to read it at 3:55 a.m. The X-ray revealed a tension pneumothorax, which can be fatal if not treated immediately. A pneumothorax is a collection of free air in the chest outside the lung from a hole in the lung or chest wall that causes the lung to collapse. A tension pneumothorax refers to the compression of the chest structures that results when the lung continues to leak air. The radiologist dictated a report, which was immediately sent to the hospital, and the offsite service and radiologist attempted to arrange a conference call with Reynolds's treating physician.

         ¶ 8 According to the telephone company's computer records, the following events occurred at the specified times. Specifically, at 3:57 a.m., the radiologist telephoned the ICU. The radiologist spoke to ICU nurse Michelle Alling about his findings. At 3:58 a.m., Reynolds's pulmonologist, who was at home, telephoned nurse Alling. Alling testified that the pulmonologist gave her an order to call the attending, who was Reynolds's family doctor, to get a consult so a trauma surgeon could come in and place a chest tube. Although Alling's telephone call with the pulmonologist lasted until 4:03 a.m., she did not wait until that call ended to seek help from others in the ICU to find a surgeon or doctor to come to the ICU. Alling had informed her charge nurse about the tension pneumothorax. Consequently, while Alling was telephoning whoever was on call that night for the attending's group and trying to get a trauma surgeon to come in, the charge nurse called probably the house supervisor, who would have information about who was available in the hospital to come to the ICU. The ICU nurses understood the significance of a tension pneumothorax, so the objective was to reach out and find the physician who could get to the ICU the fastest to place the chest tube. Alling did not know who in the ICU telephoned the ER about Reynolds's tension pneumothorax or when. She learned after the fact that someone had telephoned the ER.

         ¶ 9 The ICU's telephone call to the ER for assistance with the tension pneumothorax was characterized as a non-code blue emergency. A code blue was a common term to indicate that a cardiopulmonary arrest was happening to a hospital patient and treatment providers were required to rush to a specific location and begin immediate resuscitative efforts. Plaintiffs' evidence at trial did not show who or when someone in the ICU made that telephone call to someone in the ER.

         ¶ 10 Dr. Murino was the lone ER physician on duty that night, and he had 16 ER patients under his care at the time. Under the ER's triage system, the nurses initially classified patients in order of severity and level of necessary care. Triage was a fluid, ongoing process, and Dr. Murino checked computers to assess what was happening on a continual basis and ensure that everything was okay. Also, ER staff would inform him of changes in patients' conditions. The hospital's policy and the standard of care required ER physicians to assess their patients to ensure their safety before leaving the ER for other parts of the hospital to treat inpatient emergencies. This meant the ER physician had to (1) determine that no ER patient suffered from a condition equal to or more serious than the hospital inpatient, (2) discuss the ER patients' treatment plans with the ER nurses, and (3) observe any high risk ER patients before leaving the ER.

         ¶ 11 Dr. Murino testified that when the ICU telephones the ER, the call could be answered by anyone, like a secretary or someone at the charge nurse's desk; it depended on who was around. If everyone in the ER was in a room helping someone or starting an IV, the call could bounce around. When a call comes from the ICU to the ER, it should be triaged; someone should be made aware of it and then Dr. Murino "hopefully" would be made aware of it as soon as possible. Dr. Murino testified that he did not have an independent memory of Reynolds's treatment or the events and patients in the ER during the time in question. Dr. Murino never spoke to anyone in the ICU and did not recall when or from whom he received the information about the ICU's non-code blue call about Reynolds's tension pneumothorax. Moreover, plaintiffs did not present any witness or other direct evidence to show who in the ER initially received the information about the tension pneumothorax, what time that information was received, and what time it was communicated to Dr. Murino.

         ¶ 12 At 4:10 a.m., Reynolds suffered a cardiac arrest, and nurse Alling hit the button in his room to issue a code blue page through the hospital's public address system. Dr. Murino recorded in his notes, which were written at approximately 4:45 a.m. on the date at issue, that he was leaving the ER as the code blue page sounded. He testified that he did not recall how much time had elapsed between when he was informed about the ICU's non-code blue request for assistance and when he left the ER, but he remembered that he was moving as fast as he could.

         ¶ 13 Dr. Murino arrived at Reynolds's bedside and began treating him at 4:12 a.m. by inserting a needle and then a chest tube into his chest. Dr. Murino and the code team continued to resuscitate Reynolds but could not restore his heartbeat until 4:17 a.m. By that time, the lack of oxygen to Reynolds's brain had caused major permanent brain damage.

         ¶ 14 About six hours later, nurse Alling wrote her notes about Reynolds's treatment. According to Alling's testimony, her primary focus was treating Reynolds's serious condition, so she did not have the extra time necessary to write her notes contemporaneous with his treatment. In these situations, she usually looked at a clock if possible and jotted down the times on pieces of paper as events unfolded. Afterwards, she would sit down and use those pieces of paper to write her notes, and then would discard those pieces of paper. Consequently, the times of the occurrences listed in her notes were simply her best guess or rough estimate. Her notes were not intended to record specific and accurate times about a patient's treatment but rather were meant to inform the next shift about what had occurred before their arrival.

         ¶ 15 According to nurse Alling's notes, at 3:50 a.m., the offsite radiologist called her and reported that Reynolds had signs of a tension pneumothorax. The pulmonologist was also on the phone and talked to the radiologist. At 3:55 a.m., the pulmonologist was re-paged, and the attending physician on call that night was called to get a consult for a trauma surgeon to come in and place a chest tube. The "ER Dr. [was] paged also." At 4 a.m., the family was informed of Reynolds's condition. At 4:08 a.m., his heart rate started to drop, and the code blue was called at 4:10 a.m.

         ¶ 16 After September 22, Reynolds was diagnosed with anoxic brain injury with spastic quadriparesis and episodes of seizure activity. His disabilities included a motor speech disorder, visual defects, decreased coordination, and an inability to independently conduct the activities of daily living. Reynolds was unable to marry Lessner, his girlfriend of 16 years and fiancée. Their wedding, scheduled for October 10, 2010, never took place. The probate court appointed Lessner as the guardian of Reynolds's person and appointed The Private Bank as the guardian of his estate.

         ¶ 17 In 2012, plaintiffs Lessner and Reynolds's guardians filed this personal injury action. In 2015, plaintiffs filed their sixth amended complaint against the hospital, nurse Alling, the anesthesiologists, and Reynolds's treating physicians and their employers, seeking damages for medical malpractice on behalf of Reynolds and damages for Lessner's claims of loss of consortium and loss of chance to marry.

         ¶ 18 Relevant to this appeal, plaintiffs alleged that Dr. Murino negligently delayed leaving the ER to treat Reynolds's tension pneumothorax and that EMS was liable for his negligence on the basis of respondeat superior. Also, plaintiffs alleged that EMS negligently violated its contractual obligations and the hospital's policy by instructing Dr. Murino not to leave the ER to treat hospital inpatients unless a code blue has been issued. Specifically, plaintiffs alleged that Dr. Murino was paged at 3:55 a.m. to come to the ICU to treat Reynolds's non-code blue tension pneumothorax, but Dr. Murino negligently failed to come immediately and delayed leaving the ER until the code blue was issued at 4:10 a.m. Plaintiffs alleged that EMS's instruction about not leaving the ER for non-code blue emergencies caused or contributed to Dr. Murino's failure to promptly treat Reynolds. Also, Lessner alleged that as a proximate result of defendants' negligence and Reynolds's injuries, she was deprived of his consortium and of the chance to marry.

         ¶ 19 Prior to trial, the court granted defendants' and the codefendants' motions to dismiss Lessner's claims for loss of consortium and loss of chance to marry, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)). Also, plaintiffs settled their claims against the hospital and nurse Alling for $14 million.

         ¶ 20 Among the numerous pretrial motions filed in this matter, Dr. Murino and EMS moved in limine to bar any reference to medical malpractice insurance. They explained that their motion arose as a result of Dr. Murino's deposition testimony, which indicated that he thought his malpractice insurance with EMS did not cover treatment he rendered outside the ER to hospital inpatients in the absence of a code blue. Plaintiffs responded that Dr. Murino's credibility about his decision to leave the ER before the code blue was sounded was at issue, and his belief about his lack of malpractice coverage in such instances was very probative of that issue. Also, plaintiffs argued that a careful limiting instruction would prevent any prejudice to defendants from the mention of malpractice insurance.

         ¶ 21 The trial court granted Dr. Murino and EMS's motion in limine, finding that the concept of malpractice insurance inflames the jury and that the mention of malpractice insurance would have negative implications for the codefendants and was more prejudicial than probative. The trial court would allow plaintiffs to "get into" whether there was a policy and practice in ...

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