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Vassell v. Presence Saint Francis Hospital

Court of Appeals of Illinois, First District, Third Division

May 30, 2018

DIONNE VASSELL, Plaintiff-Appellant,

          Appeal from the Trial Court of Cook County, Illinois. No. 13 L 7592 The Honorable John P. Callahan, Jr., Judge Presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Cobbs and Justice Fitzgerald Smith concurred in the judgment and opinion.



         ¶ 1 Plaintiff Dionne Vassell gave birth to a stillborn daughter and named her Zealia. She then signed a form authorizing defendant Presence Saint Francis Hospital to dispose of Zealia's remains. According to plaintiff, defendant's employees also orally told her that defendant would bury Zealia in a short period of time. Approximately one year later, Zealia's remains were still in the cooler of defendant's morgue, in a container with numerous other fetal remains.[1]

         ¶ 2 Shortly after learning that defendant had not buried Zealia's remains, plaintiff filed this action against defendant, who ultimately obtained summary judgment on plaintiff's negligence claim. Specifically, defendant asserted that plaintiff could not establish duty, breach, or damages. Plaintiff now appeals. Based only on the arguments properly raised in the trial court and preserved on appeal, we affirm the Cook County circuit court's judgment.

         ¶ 3 I. THE BRIEFS

         ¶ 4 As a threshold matter, defendant urges us to strike plaintiff's brief for failing to comply with our supreme court's rules. Ill. S.Ct. R. 341 (eff. Nov. 1, 2017); R. 342 (eff. July 1, 2017). Specifically, defendant argues that (1) plaintiff's points and authorities section lacks references to the relevant pages of her brief, (2) her standard of review section is incomplete, (3) her jurisdictional statement is inaccurate, and (4) her fact statement contains argument and omits necessary citations to the record. We are inclined to agree, but defendant's brief suffers from its own deficiencies, including a selective fact section, improper legal citations, and arguments that are less than cohesive in certain regards. While this court may strike a brief as a sanction, we decline to strike either brief in this instance. See Rottman v. Illinois State Officers Electoral Board, 2018 IL App (1st) 180234, ¶ 23. These violations interfere with, but do not preclude, our review. Id. We urge counsel to review our supreme court's rules and take greater care in the future.

         ¶ 5 II. BACKGROUND

         ¶ 6 A. Initial Burial Arrangements

         ¶ 7 At a medical appointment on August 8, 2011, no heartbeat was detected in plaintiff's unborn child, who was over 20 weeks in gestational age. Labor was induced, and plaintiff delivered a stillborn girl the next day. According to plaintiff's mother, Denise Panton, the family was devastated. Plaintiff had obtained treatment at that hospital because Denise and plaintiff's father, Joseph Panton, both worked there.

         ¶ 8 Plaintiff asked for an autopsy to be performed and met with a female chaplain and two doctors, although she could not remember their names. The chaplain said the hospital could do the burial for her or she could arrange for the burial. Plaintiff testified in her deposition that upon inquiry of Oneil Young, Zealia's father, either a doctor or the chaplain said the burial would happen within a week or two.

         ¶ 9 Denise related a somewhat different conversation. She testified in her deposition that outside of Young's presence, a tall, unidentified, older blonde woman said the hospital would contact plaintiff to inform her where Zealia was buried. The woman also said the burial would take place "as soon as paperwork is signed and everything is done[.] *** They don't keep [the] body long in the hospital."

         ¶ 10 In contrast, Maureen O'Brien, plaintiff's nurse, testified she would tell patients they could choose private burial or hospital burial. She also told patients that the latter option involved a mass burial at All Saints Cemetery and she had no information on when the burial would occur. O'Brien also testified that a number of people could potentially speak with a mother about fetal disposition. O'Brien had no specific recollection of plaintiff or Zealia.

         ¶ 11 In any event, plaintiff testified that she told Young she was "not in my right mind to do any burial right now." Consequently, the couple agreed that defendant would handle the burial. To that end, plaintiff signed a "Fetal Death Disposition-Notification Form" (the consent form).

         ¶ 12 Although Zealia was over 20 weeks in gestation, the consent form stated that it "shall be used to notify a mother of her disposition rights and options after experiencing a spontaneous fetal demise of less than 20 completed weeks of gestation." The Hospital Licensing Act had required the Illinois Department of Public Health Division of Vital Records to create this form with respect to fetuses less than 20 weeks in gestational age and required hospitals to provide that form to mothers. See 210 ILCS 85/11.4 (West 2010).

         ¶ 13 As executed by plaintiff, the consent form stated as follows:

"I, Dionne Vassell, understand that within 24 hours of reading this notification, I have the right to arrange for the burial or cremation of these remains, or choose to let the hospital handle the disposition under the terms and conditions that the hospital may prescribe."

Plaintiff chose the latter option.

         ¶ 14 The consent form added, "I elect to have the hospital handle the disposition of these remains under the terms and conditions that it may prescribe. The hospital can explain the costs for this service, if any." The form was singularly lacking any informative terms, conditions, or circumstances relative to the disposition. Most notably given the facts of this unfortunate tale, it said nothing about the length of time it might take to bury the remains and did not mention the possibility that the remains might be commingled with other fetal remains. Additionally, plaintiff testified that no one from the hospital described any of defendant's terms and conditions, aside from the timing of the burial. She signed the document without reading it because "we" had already discussed it. She claimed that her emotional distress and medication also prevented her from reading it.

         ¶ 15 B. After Discharge

         ¶ 16 According to plaintiff, she called defendant every day following discharge for the autopsy results. She spoke to a woman in the laboratory about 20 times and obtained the autopsy report in person a month or two after Zealia's delivery but did not inquire about the burial at that time.

         ¶ 17 Almost a year after Zealia's delivery, plaintiff and Young decided she was strong enough to visit Zealia. Plaintiff also wanted to obtain the death certificate so she and Young could have closure. Plaintiff testified that at the office of vital records in Evanston, the receptionist told plaintiff and Young to return to the hospital because Zealia was not in the system.[2] Plaintiff, accompanied by some family members, returned to the hospital, but the several accounts of what followed are not entirely consistent.

         ¶ 18 C. Three Accounts

         ¶ 19 Plaintiff testified that she went to the laboratory to see the older African American woman who was previously involved with the autopsy report. Plaintiff relayed her attempt to get the death certificate and asked if Zealia had been buried. According to plaintiff, the woman said, "Oh, I'm so sorry. I'm so sorry." She then said she needed to call her supervisor. Joseph said, however, that he was going down to the morgue to see if Zealia was really there. Plaintiff testified, "once they tell me my baby wasn't buried, I wanted to go see for myself." She was crying and upset. In addition, Denise and the woman from the laboratory accompanied them, although the woman said, "I'm not supposed to do this."

         ¶ 20 When Joseph opened the morgue cooler, they all went inside, where they saw several containers. One container was labeled with a list bearing 10 to 14 names, including Zealia's name. When plaintiff asked the woman how she knew Zealia was inside the container in light of the list, the woman again apologized and noted that she was not supposed to be there. She also said they could not open the container due to the chemicals inside. Plaintiff became very angry and wanted to speak to the supervisor, who finally arrived when they returned upstairs.

         ¶ 21 The supervisor, described as an older Hispanic woman, suggested that Zealia had only been there for a month and that the hospital had been "backed up." Plaintiff responded that it had not been a mere month and sent the supervisor to check her records. The supervisor never returned, however. Plaintiff ...

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