Court of Appeals of Illinois, First District, Fifth Division
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.
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
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
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
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 ...