Pineiro v. Advocate Health & Hosps. Corp.

2020 IL App (1st) 191638-U

REBECCA PINEIRO, as Personal Representativeof the Estate of Antonio Pineiro, Deceased, Plaintiff-Appellant, v. ADVOCATE HEALTH AND HOSPITALS CORPORATION,MAXIME GILLES, M.D., EVAN McLEOD, M.D.,and KAMBIZ ZORRIASATEYN, M.D., Defendants-Appellees.

No. 1-19-1638

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

October 21, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County

2016-L-000050

Honorable Janet Adams Brosnahan, Judge Presiding

JUSTICE McBRIDE delivered the judgment of the court.

Presiding Justice Howse and Justice Burke concurred in the judgment.

ORDER

¶ 1 Held: In medical malpractice appeal, plaintiff failed to show that trial court coerced juror into a unanimous verdict and plaintiff waived all other arguments by failing to comply with appellate rules.

¶ 2 Antonio Pineiro arrived at Chicago's Advocate Trinity Hospital complaining of shortness of breath and pleuritic chest pain and then died at the hospital 28 hours later from septic shock. Plaintiff Rebecca Pineiro, on behalf of her husband's estate, brought medical negligence claims against Advocate Health and Hospitals Corporation (Advocate Health), board-certified emergency medicine physician Dr. Maxime Gilles, board-certified internist Dr. Kambiz Zorriasateyn, and pulmonologist Dr. Evan McLeod, alleging that the physicians delayed in diagnosing and treating sepsis. The plaintiff appeals after a jury verdict was entered in favor of all of the defendants. The plaintiff's primary argument on appeal is that the trial judge coerced a holdout juror into changing her vote, instead of declaring a mistrial. The plaintiff further contends that her post-trial motion should have been granted as it identified numerous evidentiary errors, as well as the use of a pattern jury instruction which mischaracterized the three defendant physicians as "specialists." The defendants respond that the trial proceeded without error and that despite the physicians' compliance with the standard of care, Mr. Pineiro's death was predetermined by an aggressive MRSA infection. (MRSA is an acronym for Methicillin-resistant Staphylococcus aureus and refers to a group of bacteria that cause infections that are difficult to treat in humans). The defendants also contend the plaintiff has waived most of her appellate arguments by failing to support them with the necessary citations to the record and authority.

¶ 3 The trial court entered a final judgment order on March 14, 2019, the plaintiff filed a post-judgment motion on April 15, 2019, the court denied the motion on July 12, 2019, and the plaintiff filed a notice of appeal on August 9, 2019. Accordingly, we have jurisdiction pursuant to Supreme Court Rule 301 (eff. Feb. 1, 1994) and Supreme Court Rule 303 (eff. July 1, 2017).

¶ 4 We have compiled the following summary of the three-week jury trial and limited this recitation to the essential evidence and procedural facts.

¶ 5 The record shows that in January 2014, Mr. Pineiro was a 54-year-old man with a history of uncontrolled diabetes, high blood pressure, and heart issues, including four coronary artery stents, the most recent of which had been placed in early 2012. He had been ill for about a weekbefore asking his wife to take him to the emergency room. At about 1:30 a.m., on Saturday, January 4, 2014, the Pineiros arrived at Advocate Trinity Hospital, which was an "average-sized community hospital" close to their home. After initial testing to rule out a coronary issue or a pulmonary embolism, Dr. Gilles correctly diagnosed Mr. Pineiro with community-acquired pneumonia and ordered the administration of fluids and antibiotics. Dr. Gilles ordered Rocephin/ceftriaxone and Zithromax/azithromycin, which were two broad-spectrum antibiotics that were the most common treatment for community-acquired pneumonia.

¶ 6 Although Dr. Gilles' work shift ended at 6 a.m., he continued to treat Mr. Pineiro for an additional 90 minutes. He called Mr. Pineiro's primary care physician, Dr. Debra Damper, and was put in touch with a physician who was covering for Dr. Damper, Dr. Wanda Pearson. As an emergency department physician, Dr. Gilles could not admit a patient to another department of the hospital. At 7:11 a.m., Dr. Pearson admitted Mr. Pineiro to the hospital's telemetry unit and she and another physician in the Damper practice group, Dr. Melinda Sykes-Bellamy, were then in charge of Mr. Pineiro's care at Advocate Trinity Hospital as his attending physicians. Dr. Gilles testified that an attending physician manages a patient's hospital care by, for instance, ordering antibiotics, blood work, fluids, oxygen, x-rays, and consultations. Thus, Dr. Gilles testified, an emergency room physician such as himself "get[s] them in the door and then they [(the attending physicians)] take over." The telemetry unit that Dr. Giles and Dr. Pearson discussed would provide continuous monitoring, in contrast to the lesser extent of monitoring provided on a medical floor of the hospital.

¶ 7 Mr. Pineiro "boarded" in the emergency department for 10 hours, meaning that after he was admitted to the hospital, he remained in the emergency department while waiting for a hospitalbed to become available. Throughout this time period, he remained in a room and connected to the same monitoring equipment that would have been used in the telemetry unit. The emergency department monitored his heart, respiration, oxygenation, temperature, as well as blood pressure, all of which remained normal and stable. While boarding, Mr. Pineiro was seen only by nurses and by a respiratory therapist who administered breathing treatments.

¶ 8 On Saturday afternoon, at about 2:00 p.m., Mr. Pineiro's attending physician, Dr. Sykes-Bellamy, ordered the use of biPAP equipment, however, Mr. Pineiro's condition deteriorated over the course of the day. The nurses documented that the "patient refused to keep the biPAP on" and the "respiratory [therapist] had difficulty convincing the patient to use the biPAP." Dr. Zorriasateyn testified that biPAP is the use of a respiratory support machine that delivers oxygen under positive pressure and that some people are uncomfortable in a biPAP mask.

¶ 9 Sometime after 4 p.m., Dr. Sykes-Bellamy changed the bed request from the telemetry unit to the transitional care unit or TCU, which was a level of care that was considered a "step down" from the intensive care unit or ICU. Mr. Pineiro transferred out of the emergency room into the TCU at about 5:45 or 6 p.m.

¶ 10 Mr. Pineiro was having difficulty breathing and a rapid response code was called. Dr. Zorriasateyn was an "urgent hospitalist" at Advocate Trinity Hospital, which meant that he responded to emergencies, rapid response codes, and Code Blues on the medical floors of the hospital, which were the three uppermost floors of the four-story building. Dr. Zorriasateyn was not on call in the emergency department, which was on the ground floor.

¶ 11 When Dr. Zorriasateyn conducted his first examination, he heard crackling in Mr. Pineiro's lungs which was inconsistent with pneumonia, rather, the sound was indicative of pulmonaryedema, or fluid in the lungs, which could cause suffocation. At about 6:30 p.m., he gave Mr. Pineiro a small dose of Lasix, 20 milligrams-much less than the 60 to 80 milligrams that would be given to an average size person-in order to give Mr. Pineiro relief and help diagnose what was occurring. Dr. Zorriasateyn also ordered immediate lab tests, a repeat chest x-ray, and the same two antibiotics that Dr. Gilles had ordered in the emergency room, Rocephin/ceftriaxonen and Zithromax/azithromycin. While testifying, the plaintiff admitted that Dr. Zorriasateyn talked with her and her husband about the importance of the breathing treatments and biPAP and that Dr. Zorriasateyn wanted to intubate Mr. Pineiro because he was having so much trouble breathing. Intubation, however, requires forcibly placing a tube down the patient's throat and must be consented to by the patient or by a family member if the patient is unable to give consent. The emergency room nurses had written in Mr. Pineiro's chart, "Spouse repeatedly states, no intubation" and "Spouse visibly upset." Dr. Zorriasateyn could recall his concern that the Pineiros were resisting the biPAP and that without sufficient oxygen, his patient was deteriorating. Dr. Zorriasateyn decided to persist in the conversation with his patient because if he became unable to give consent, then "who's going to give *** authority to intubate." The plaintiff testified somewhat to the contrary that although her husband did not like the biPAP, he kept it on for the 30 minutes that he was told to use it. Even with the biPAP in use at about 6 p.m, Mr. Pineiro's vital signs continued to deteriorate. Dr. Zorriasateyn ordered a bolus (the rapid administration of one liter) of fluid to help increase Mr. Pineiro's blood pressure. Dr. Zorriasateyn's 12-hour shift ended at 7 p.m., but he continued to treat Mr. Pineiro in the TCU. By 7:15 p.m., Dr. Zorriasateyn had received consent and resorted to intubation. During the intubation procedure, he suctioned out clots and bloody material from Mr. Pinero's airways and then used a nasogastric tube to suction "coffeeground" material from Mr. Pineiro's stomach, which was potentially blood. Dr. Zorriasateyn then consulted Dr. McLeod, the defendant pulmonologist, by phone, who recommended that Mr. Pineiro be kept intubated and transferred to the ICU for observation.

¶ 12 In the ICU, Dr. Zorriasateyn placed a central line with the plaintiff's consent and ordered Vancomycin, which is an antibiotic used to treat MRSA pneumonia. However, Mr. Pineiro's 6:30 p.m. lab results showed a white blood cell count of 2.1, which Dr. Zorriasateyn testified was so low, it indicated that Mr. Pineiro's...