Kim v. Evanston Hosp.

Page 371

608 N.E.2d 371

240 Ill.App.3d 881, 181 Ill.Dec. 298

David KIM, a Minor by Hye Jung Kim, his mother and next friend, and Hye Jung Kim, Individually Plaintiffs-Appellants, v. EVANSTON HOSPITAL, Dr. Alan Resnick, and Dr. John M Reichert, Defendants-Appellees.

No. 1-90-3645.

Appellate Court of Illinois First District, Second Division.

Dec. 29, 1992.

Goldberg & Goldberg, David A. Novoselsky & Associates, Chicago (David A. Novoselsky, Linda A. Bryceland, of counsel), for plaintiffs-appellants.

David J. Loughnane, Pretzel & Stouffer, Chartered, Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for defendants-appellees.

Justice DiVITO delivered the opinion of the court:

In this medical malpractice action, plaintiff David Kim sought damages for injuries sustained when defendants allegedly failed to timely diagnose and treat him for meningitis on December 5, 1981. After a seven-week trial, a jury found in favor of defendants and against plaintiffs. On appeal, plaintiffs contend that reversal is necessary because (1) defense counsel improperly characterized plaintiffs' treating physicians as retained experts; (2) a hypothetical contained in a question by defense counsel improperly impugned a relative of plaintiffs' counsel; (3) defense counsel's closing argument improperly injected racial prejudice into the trial; and (4) the jury's verdict was against the manifest weight of the evidence.

On December 5, 1981, 16-day-old David Kim awoke at approximately 4 a.m. His mother, Hye Jung Kim, tried to feed him and noticed that he was fussy and slightly warm. By about 8 a.m., David had a fever of 103 degrees and refused to eat. Sometime between 8:10 and 8:20 a.m., Mrs. Kim called the Child and Adolescent Center, an outpatient clinic at Evanston Hospital. Plaintiffs asserted that she spoke to defendant Dr. John Reichert, plaintiffs' pediatrician, and that he told her that there was nothing to worry about but that she could bring David in during the normal clinic hours. Defendants asserted, however, that she spoke either to Dr. Herbert Philipsborn, the attending physician, or to no one.

Sometime between 9:30 and 10 a.m., David and his mother arrived at the clinic and were first seen by Philipsborn, who suspected "sepsis," a condition involving bacteria in the bloodstream. Philipsborn advised defendant Dr. Alan Resnick, the resident on the pediatric floor, that the child was fussy and had a fever, and instructed him to perform an evaluation in order to rule out sepsis. Philipsborn stated that he also called Reichert to tell him that his patient had been admitted to the hospital.

Resnick first determined that David required no immediate treatment and then spent 20-30 minutes taking a medical history and conducting a physical examination. Because sepsis was suspected, a spinal tap was performed and blood samples were drawn. An intravenous line (IV) was inserted between 11:15 and 11:30 a.m., approximately two hours after David arrived at the hospital. Although the objective was to administer antibiotics by IV as soon as possible, it could not be done, due to the fear of toxic effects, until the lab results were returned. At approximately 11:35 a.m., the IV became "infiltrated," that is, fluid leaked from the blood vessel and caused swelling around the IV. It was not until 12 p.m. that Resnick was able to successfully replace the IV. He explained that David's veins were so fragile that infiltration kept reoccurring. The medical record, however, bears no notation concerning any such fragility.

Even though an IV was in place around noon, Resnick was not able to administer the antibiotics for approximately one-half hour. Ruth Kinney, the manager of the Biochemistry Department at Evanston Hospital, testified that the tests took approximately one hour to complete once the spinal fluid and blood samples were received. Moreover, no standardized solutions of antibiotics suitable for infants were kept on hand by the hospital pharmacy. Instead, the physician had to call the pharmacy to have the appropriate solution prepared. By 12:30 p.m., however, ampicillin was being administered to David.

Approximately 15 minutes after beginning the drug administration, the IV again became infiltrated. Resnick worked for approximately 15 minutes to reinsert the IV, and at 1 p.m., he requested Dr. Christie Martin's assistance. At approximately 1:15 p.m., Resnick was able to establish a good line. Although the medical record does not specify exactly what time the drug administration began, it does indicate that it began no later than 1:30 p.m.

By 2 p.m., the patient was stable and the "gram stain" test result, critical in the diagnosis of meningitis, came back from the laboratory. The test result indicated a "gram positive organism," or "group B strep," in the spinal fluid which can cause meningitis. Because of the test result, David's medication was changed to penicillin G. At approximately 4 p.m., David suddenly began having seizure activity, with a jerking of the eyes and shakiness. Resnick gave him valium and phenobarbital to control the seizures, and then called Reichert, who said that he was coming to the hospital. About 20 minutes later, Resnick called the intensive care unit (ICU) to advise that he wanted the child admitted to the infant special care unit, and to request the assistance of Dr. Martin. After Reichert arrived at the hospital between 4:30 and 4:45 p.m., he and Resnick called the ICU to have David admitted there, but were told that no bed space was available in either the adult or infant units. They then decided to transfer the infant to the ICU at Children's Memorial Hospital. Except for his signature at the end of the "work up" done by Resnick, Reichert made no markings in the medical record.

During this time, David's breathing patterns became erratic. Resnick administered oxygen with a face mask and called an anesthesiologist to "intubate" him. An anesthesiology resident came and placed an endotracheal tube in David's windpipe. The anesthesiologist made no entries in the medical record.

Children's Memorial Hospital was called at 5 p.m. A transfer team arrived at Evanston Hospital approximately one hour later, and began preparing the paperwork. At 6:55 p.m., David was transferred to Children's Memorial Hospital.

In their lawsuit, plaintiffs asserted that defendants deviated from the standard of care when they failed to administer the antibiotics in a timely manner, when they failed to place David in a pediatric unit as soon as possible, and when Reichert failed to instruct plaintiffs to go to the emergency room when he spoke to Mrs. Kim on the morning of December 5, 1981.

During the seven-week trial, much evidence was presented by the parties. On behalf of plaintiffs, Dr. Frank Baker testified that Reichert deviated from the standard of care when he failed to instruct Mrs. Kim to take her child to the emergency room when she called him that morning and told him that the infant had a fever. Baker explained that whenever a baby less than 28-days-old has a fever, there is a presumptive diagnosis of sepsis. He stated that antibiotics should have been administered within a half-hour of the spinal tap, but that nearly two hours had elapsed in this case. He also stated that effective treatment of meningitis requires that the antibiotics be administered in a timely manner and that the medical records should have indicated any difficulty in maintaining the IV.

Dr. James Todd also testified for plaintiffs. He agreed that Reichert violated the standard of care by telling Mrs. Kim to wait until the clinic's regular hours. He also stated that drug therapy should begin as soon as possible, within 10 to 15 minutes of the spinal tap. He stated, however, that David already had meningitis when he arrived at the hospital.

Dr. Robert Eilers, a specialist in rehabilitative medicine, was called to testify as a treating physician by plaintiffs. He stated that he conducted the type of examination of David Kim that he does on all of his other patients, and he expects David to have a normal life expectancy. Although he stated that he had been involved with approximately five cases where plaintiffs' counsel also was involved, Mrs. Kim testified that she learned of Eilers through a parents group, and took her son to him to learn what type of therapy would be helpful.

Dr. Lawrence Tomasi also testified as a treating physician for plaintiffs. He stated that he supervised the doctors at Children's Memorial Hospital who treated David. He believed David's nervous system would never recover. Under cross-examination, he stated that he had consulted or testified for plaintiffs' counsel approximately 12 to 14 times prior to the instant case.

Dr. Jerome Klein testified for defendants, and explained that David suffered from fulminant meningitis rather than insidious meningitis. Fulminant meningitis has no symptoms and comes on quickly, in an "explosive fashion." In his opinion, an earlier administration of antibiotics would not have changed the outcome, because the only means of preventing the disease is to treat it 4-12 hours before its onset. The onset of the disease in this case most likely occurred before David went to bed that night, and therefore the progression of the disease was "unstoppable."

During his testimony, Dale Sowders, the legal affairs coordinator for Evanston Hospital, explained the hospital's procedures for updating files and who had access to the medical records.

As previously indicated, the jury found for defendants and against plaintiffs. Plaintiffs filed a post-trial motion, which the circuit court denied. This appeal followed.

Initially, we address defendants contention that because plaintiffs' have failed to file a record which conforms with Illinois Supreme Court Rule 321 (134 Ill.2d R. 321), this court should summarily affirm the circuit court. Defendants point out that plaintiffs...