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Jefferson v. Mercy Hospital & Medical Center

Court of Appeals of Illinois, First District, Second Division

February 6, 2018

JOI JEFFERSON, as Special Representative of the ESTATE OF JEANETTE TURNER, Deceased, Plaintiff-Appellee,

          Appeal from the Circuit Court of Cook County No. 06 L 5913 Honorable Clare E. McWilliams, Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Neville and Justice Pucinski concurred in the judgment and opinion.



         ¶ 1 Defendant, Mercy Hospital & Medical Center (Mercy), appeals from a jury verdict in favor of plaintiff, Joi Jefferson, in the amount of $22, 185, 598.50. This case began as a medical malpractice action by plaintiffs mother, Jeanette Turner, who alleged that due to the negligence of Mercy's nurses and doctors, a clot occluded her tracheostomy tube and caused respiratory arrest, ultimately resulting in permanent brain damage. After the case was submitted to the jury, but before a verdict was returned, Jeanette died and plaintiff was appointed as special representative of her estate to receive the jury's verdict.

         ¶ 2 On appeal, Mercy seeks a judgment n.o.v. or a new trial on the grounds that (1) plaintiff failed to prove Mercy's negligence caused her injury, (2) the trial court erred in admitting certain evidence regarding Jeanette's blood clot, and (3) plaintiff was erroneously permitted to introduce a new theory of negligence on rebuttal. Mercy further argues that the jury's verdict for future damages should be vacated due to Jeanette's death and that the $1 million award for past emotional distress should be set aside as duplicative of the $500, 000 past pain and suffering award and the $2 million award for past loss of normal life. We vacate the jury's award of future damages and otherwise affirm the judgment.

         ¶ 3 On February 22, 2005, Jeanette was admitted to Mercy with Ludwig's angina, a life- threatening condition in which an abscess causes swelling in the floor of the mouth, which, in Jeanette's case, had progressed to involve swelling of her neck and airway. She was taken to the operating room, where a tracheostomy was performed by Drs. Benjamin Gruber (an ear, nose, and throat (ENT) doctor), and Jason Cundiff (a fourth-year ENT resident) under local anesthesia.

         ¶ 4 A tracheostomy involves the placement of an artificial device known as a trach tube in the patient's trachea, or windpipe; the purpose of which is to restore a patient's airway. The collar of the trach tube is sutured to the skin with a strong stitch. Inside the trach tube is a cuff, that, when inflated, expands to fill the trachea and prevents a patient from breathing through their nose; they can only breathe through the trach. A cuff must ordinarily be inflated or deflated with a syringe, but an inflated cuff can deflate as a result of a leak. When a cuff is inflated, it provides protection to the airway from materials such as blood, which are prevented from traveling below the trach tube. Blood that travels below the tube runs the risk of clotting if it is not suctioned or coughed out. When the cuff of a trach tube is inflated, the patient cannot speak.

         ¶ 5 In the operating room, the cuff in Jeanette's trach tube was inflated to allow the anesthesiologist to administer gas and ventilate her while she was undergoing surgery. Jeanette's surgery was successful and the abscess in her mouth was drained, but following surgery on February 23, Jeanette experienced some bleeding at the trach site and also complained of a choking sensation. Plaintiff's expert, Dr. Scott Graham, an ENT doctor, explained that both effects were normal. Because the trach site is an open wound, some bleeding is to be expected. This is particularly true when a patient is on blood thinners, as Jeanette was for a pre-existing heart condition In addition, when a trach is first placed and the cuff is inflated, many patients complain of a choking sensation.

         ¶ 6 The bleeding resolved over the next several days, and Dr. Cundiff deflated the cuff, but on February 27, bleeding recommenced at 8 p.m. At that time, nurse Debra Rohrwasser redressed the site, but several hours later, at 11:30 p.m., she again noticed bloody, watery drainage from the trach. She did not notify a doctor.

         ¶ 7 The morning of February 28, Jeanette was taken to the cardiac catherization lab (cath lab) for a test of her artificial heart valve. Dr. Cundiff was in attendance. Upon observing persistent bleeding from the stoma (the hole in the throat where the trach is placed), Dr. Cundiff cauterized it with silver nitrate and packed the stoma with gauze, which partially controlled the bleeding. Dr. Graham explained that this procedure coagulates the blood vessels and stops bleeding. Dr. Cundiff reinflated the cuff at this time, which would have left Jeanette unable to speak.

         ¶ 8 Following her procedure at the cath lab, Jeanette was taken to the medical-surgical floor of Mercy. There, she was initially under the care of nurse Michele Findrick. Nurse Findrick testified that Jeanette arrived on her floor at 5:30 p.m., after a delay due to the bleeding from her trach site. When nurse Findrick first assessed Jeanette, she did not observe bleeding, but noted that Jeanette was sitting up and in good spirits. At trial, nurse Findrick testified that she could not recall whether Jeanette was speaking, but in her deposition, the nurse testified that Jeanette was talking. After nurse Findrick left the room, a family member, later identified as Jeanette's sister, Annette, informed her that Jeanette was bleeding. Nurse Findrick confirmed that blood was trickling from the trach site and also saw blood on Jeanette's hospital gown. The nurse gave gauze to Annette and told her to press it to the trach site. When the blood soaked through the gauze, nurse Findrick paged Dr. Cundiff, who came to see Jeanette and took her off the blood thinners and ordered two units of red blood cells to replace lost blood, as well as four bags of fresh frozen plasma, which would promote clotting. Dr. Cundiff did not expect the bleeding to resolve until all bags of plasma were administered.

         ¶ 9 Nurse Findrick was off duty at 7 p.m., at which time she testified that Jeanette was no longer bleeding but talking and sitting up. Nurse Jasmin David took over for nurse Findrick and continued to monitor Jeanette's condition. She administered the first bag of fresh frozen plasma at 8:30 p.m. and the last at 12:30 a.m. In addition, throughout the night, nurse David suctioned the trach, reinforced the dressing, and monitored Jeanette's vital signs, which were normal until just before she lost consciousness at 12:50 a.m. Nurse David testified that the suctioning produced minimal bloody output with "small snippets" of blood. Nevertheless, at 11 p.m., nurse David noted in the chart that Jeanette was coughing out blood and clots and wrote that Jeanette was "[c]omplaining of pain and stated that 'these blood clots are choking me.' " At trial, David explained that Jeanette did not actually speak but communicated through writing. In response to Jeanette's complaints, at 11 p.m., nurse David paged Dr. Karen Noriega, a first-year resident at Mercy, who was assigned to "night float" duty.

         ¶ 10 According to both nurse David and Dr. Noriega, Dr. Noriega arrived in response to the page but did not note her visit on Jeanette's chart. Dr. Noriega explained that she failed to notate the chart because Jeanette was stable without active bleeding, although she did observe dried blood.

         ¶ 11 Dr. Noriega was paged a second time at approximately midnight. At that time, she made an entry in Jeanette's chart reflecting that Jeanette had blood around the trach site with blood clots being coughed out and that Jeanette "stated" she was choking and could not breathe. At trial, Dr. Noriega clarified that she did not personally observe Turner coughing blood clots, but that she learned it from Annette. She also clarified that Annette told her Jeanette was choking. Ultimately, Dr. Noriega paged Dr. Dayakar Reddy, a resident at Mercy who was also on her night float team, in response to Annette's pleas to "do something."

         ¶ 12 When Dr. Reddy arrived, he saw Annette's hands hovering near Turner's trach site. His note reflected that both Jeanette and Annette were trying to stop the bleeding by applying pressure and adjusting the trach. At trial, Dr. Reddy admitted that he was actually unable to see what Annette and Jeanette were doing when he entered the room. He asked Annette to leave so that he could examine Jeanette, and then he called security. After Annette left, he began examining Jeanette and did not note any blood or clots. Jeanette then lost consciousness in front of him, and Dr. Reddy called a code blue. Dr. Reddy immediately attempted to ventilate Jeanette through the trach tube by using an Ambu bag but encountered resistance in pushing air through the bag. It was only after an anesthesiologist arrived a few minutes later and adjusted the trach that Dr. Reddy was able to successfully ventilate Jeanette. Mercy stipulated that it was unable to identify the anesthesiologist who responded to the code.

         ¶ 13 Dr. Cundiff also responded to the code, arriving at the hospital from his home at approximately 1 a.m. Upon his arrival, he was told that Annette had dislodged the trach. Dr. Cundiff used a laryngoscope to probe the trach tube but did not see evidence of a blood clot and did not remove a blood clot. However, in his notes, he recorded that the airway was "occluded." At trial, he explained this meant that when he inserted the laryngoscope, the tip of the trach tube was not in the trachea, but resting against tissue, and was dislodged rather than blocked. Dr. Cundiff went on to testify that he would not have done anything differently if he had been contacted sooner. He acknowledged that he saw the trach tube after the anesthesiologist had repositioned it, and he did not know whether it was dislodged prior to the repositioning. Further, he admitted that it would have been difficult to reposition the trach tube if the cuff was inflated.

         ¶ 14 Annette provided further details of the events of that night. When Jeanette returned to her room after the procedure at the cath lab, Annette saw blood around Jeanette's neck and on her nightgown, as well as blood coming out of the trach site. In accordance with nurse Findrick's instruction, Annette placed gauze around Jeanette's neck to stop the bleeding, but neither she nor Jeanette touched the trach. As the bleeding worsened, the nurse gave Annette towels instead of gauze. Annette further testified that the nurse told her she was suctioning out blood and mucus during the night. Annette testified inconsistently about when doctors came to attend to her sister, initially saying that no doctors were present between 10:30 p.m. and 12:30 a.m. but later recalling that she had seen Dr. Noriega more than once before the code. With regard to Jeanette's vocalization, Annette testified that at 10 p.m. she heard Jeanette speak to complain of choking.

         ¶ 15 After Annette was asked to leave her sister's side immediately before the code, she waited in the prayer room on the same floor across from Jeanette's room. A tall black woman with an Afro hairstyle who was wearing scrubs came to the room some time later and said "the doctor who put the trach in found a blood clot." Mercy never identified this individual.

         ¶ 16 Jeanette was without oxygen for approximately 20 to 25 minutes before she was resuscitated and taken to the intensive care unit (ICU). She remained in the hospital until the end of March 2005. During her stay at Mercy, six hospital records by five different doctors all reflected that Jeanette's arrest was caused by a clot in her trach tube. Specifically, between March 24 and March 31, a transfer note, an acceptance note, two consult requests, a note from pulmonary service, and a discharge note all state that Jeanette suffered an anoxic brain injury after a clot lodged in Jeanette's trach tube, and five of those six notes indicate that an ENT doctor removed the clot. Mercy did not call any of these doctors to testify at trial. As a result of her injury, Jeanette sustained brain damage and partial paralysis.

         ¶ 17 Both parties introduced expert testimony regarding the standard of care and the cause of Jeanette's injuries. Dr. Graham testified on behalf of plaintiff that while Dr. Cundiff's treatment of Jeanette in the cath lab complied with the standard of care, as did his 7 p.m. order to stop the blood thinners and administer bags of fresh frozen plasma, the standard of care required Dr. Cundiff to follow up on this treatment plan. Specifically, Dr. Graham opined that Dr. Cundiff should have called the hospital to learn of Jeanette's continued bleeding and then reexamine her. That examination would have led Dr. Cundiff to take steps to stop the continued bleeding and ensure that the trach tube was patent and that the cuff was inflated. Given that the bleeding was coming from the stoma, Dr. Graham believed that additional packing and cauterization would have been appropriate. Likewise, when Dr. Noriega was paged at 11 p.m., the ...

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