Banks v. Climaco
State: Illinois
Court: 5th District Appellate
Docket No: 5-95-0868
Case Date: 09/05/1996
No. 5-95-0868
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
)
SHERI LYNN BANKS, Individually and as) Appeal from the
Administrator of the Estate of ) Circuit Court of
Jeffrey Lynn Banks, for the benefit ) Effingham County.
of Sheri Lynn Banks and Brooke Shelby)
Banks, )
)
Plaintiff-Appellant, )
)
v. ) No. 93-L-56
)
RAMON CLIMACO, M.D., ) Honorable
) Richard H. Brummer,
Defendant-Appellee. ) Judge, presiding.
_________________________________________________________________
PRESIDING JUSTICE HOPKINS delivered the opinion of the court:
Plaintiff, Sheri Lynn Banks, appeals from the jury's verdict
in favor of defendant, Ramon Climaco, M.D., in this medical
malpractice case. Sheri, who is the widow of Jeffrey Lynn Banks,
appeals on her own behalf and in behalf of Brooke Shelby Banks,
Jeffrey's daughter. Jeffrey died on October 28, 1991, at the
emergency room (ER) of St. Anthony's Memorial Hospital (St.
Anthony's) in Effingham, Illinois. Dr. Climaco was the attending
physician on call when Jeffrey arrived at the ER at approximately
9:35 p.m. on October 27, 1991.
Plaintiff filed her multiple-count complaint alleging medical
malpractice by defendants Climaco and Ashokkumar Shah, the
anesthesiologist on duty the night of Jeffrey's death. St.
Anthony's and nurse anesthetist James Kinney were named as
respondents in discovery, until they settled with plaintiff some
months before the trial. Dr. Shah settled with plaintiff at the
close of all of the evidence. Hence, during its deliberations the
jury considered only the liability of Dr. Climaco.
On appeal, Sheri argues (1) that the trial court committed
reversible error by allowing evidence, argument, and a jury
instruction to the effect that the sole proximate cause of
Jeffrey's death was someone other than defendant Climaco; (2) that
the trial court erred in failing to grant her motion for mistrial,
which motion was based upon a newspaper disclosure of the pretrial
settlement of St. Anthony's; and (3) that the court erred in
failing to grant her motion for a directed verdict or for a
judgment notwithstanding the verdict. For reasons we will more
fully explain, we affirm.
I. FACTS
A. NEWSPAPER DISCLOSURE OF PRETRIAL SETTLEMENT
Prior to the opening statements of the attorneys, the trial
judge told the 12 regular jurors and the two alternates that they
should avoid all media accounts of the trial and, in particular,
that they should avoid reading local newspapers and listening to
the local radio stations during the trial. At the end of the first
day of the trial the jurors were admonished again to "avoid all
media contacts."
On the second day of trial, plaintiff's attorney moved for a
mistrial, on the basis of the following quote on the front page in
the previous day's afternoon edition of the local newspaper:
"In the original lawsuit filed Jan. 11, 1994,
several area doctors along with St. Anthony's Memorial
Hospital were named as respondents in discovery in the
lawsuit over the 1991 death of Jeffrey Banks. Subsequent
motions in the case involve a settlement made with the
hospital, according to Charlene A. Cremeens, attorney for
one of the defendants. All others named as respondents
in discovery *** have been dismissed, according to
Cremeens."
Plaintiff's attorney argued that his case had been irreparably
prejudiced by the newspaper article, that the court should order a
mistrial immediately, since the jury had only heard one day of
testimony, and that he did not want to proceed with the trial,
which was expected to take a full two weeks. Plaintiff's attorney
argued that in order to make a record after the trial was over, he
would have to "go out and basically interview the jurors and get
affidavits and file a motion and get the thing set up for appeal."
The trial court denied the motion for mistrial, after individually
interviewing all 12 regular jurors and the two alternates. None of
the jurors had read the newspaper article, except one of the
regular jurors, who was removed from the panel and replaced with
one of the alternates.
B. EVIDENCE PRESENTED AT THE JURY TRIAL
Jeffrey arrived at the ER with a self-inflicted stab wound to
the abdomen. At the ER, Dr. Climaco ordered a continuation of the
fluid therapy started by the ambulance staff and assessed his vital
signs. Jeffrey's blood alcohol content was assessed at .22, his
breathing was labored, his blood pressure was within the normal
range, and his heart rate was abnormally high.
The respiratory therapist on duty that night, Jeffrey
Pietrzyk, continued the respiratory assistance given by the
ambulance staff, which was to assist Jeffrey's breathing with an
"ambu bag." According to all accounts of the medical personnel at
the ER, Jeffrey was combative when he arrived at the ER and during
most of his time there. As a result of his combativeness and since
the knife was secured in his abdomen prior to surgery, Jeffrey's
limbs were restrained during his entire time in the ER.
Climaco determined that Jeffrey required surgery to remove the
knife from his abdomen, a decision which none of the experts who
testified at trial criticized. However, no surgeon was available
as soon as needed, so Climaco ordered Jeffrey transferred to Carle
Clinic in Champaign, Illinois, where the surgery was to be done.
Prior to transfer, Climaco decided to intubate Jeffrey. When a
patient is intubated, a respiratory tube is place in the patient's
mouth and into his trachea, so that he can be artificially
respirated. Climaco's attempt to intubate Jeffrey at approximately
10 p.m. was unsuccessful. As a result, Climaco called for an
anesthesiologist to perform the intubation. At approximately 10:30
p.m., a nurse anesthetist, James Kinney, came in and also unsuc-
cessfully tried to intubate Jeffrey. Starting at 10:30 p.m., Dr.
Climaco ordered that Jeffrey be given valium to sedate him.
When Shah, the anesthesiologist, arrived at 11:07 p.m., he
talked briefly with his nurse anesthetist and then ordered
succinylcholine, a drug that temporarily paralyzes a patient,
including his ability to breathe on his own, in order to accomplish
the intubation. Before Jeffrey was given the succinylcholine, he
was preoxygenated, i.e., he was given additional oxygen to avoid
problems with the period during which he could not breathe, which
occurs before the endotracheal tube is in place and working
properly. Shah placed the endotracheal tube in Jeffrey's throat,
and Pietrzyk listened for Jeffrey's breath sounds. Pietrzyk
testified that when he did not hear the proper breath sounds, he
told Shah that the tube was in the wrong place, in the esophagus
instead of the trachea. Pietrzyk testified that Shah insisted that
the tube was in the right place.
Pietrzyk continued to assist Jeffrey's breathing with the ambu
bag but still could not hear any breath sounds, so again, he told
Shah that the tube was in the wrong place. At the same time,
Pietrzyk noticed that Jeffrey's stomach was becoming noticeably
distended, which is a sign of an improper esophageal intubation, as
the air is entering the stomach rather than the lungs. According
to Pietrzyk, Shah did not respond to him, so Pietrzyk again
suggested that Shah should check the placement of the tube, at
which time Shah walked out of the room. Shortly after Shah left,
according to Pietrzyk's account, Jeffrey's heart rate went down to
30 to 40 beats per minute, which is dangerously low. Pietrzyk then
called for a "code," which is done when the hospital personnel
determine that the patient will die if not given immediate
assistance. Pietrzyk testified that the nurse anesthetist then
listened for the breath sounds and, hearing nothing, took out the
improperly placed tube and correctly reintubated Jeffrey. Pietrzyk
estimated that about five to six minutes elapsed before the second
tube was properly placed. Jeffrey was given cardiopulmonary
resuscitation, but he never revived.
Both Climaco and Shah testified. In addition to the factual
summary we have just set forth, Climaco testified that he was also
treating other patients in the ER on October 27, 1991, and that he
was in and out of Jeffrey's room at least five times that evening.
Climaco's initial treatment of Jeffrey was to give fluids intrave-
nously, since he assumed that Jeffrey had "massive bleeding" due to
the stab wound. Climaco testified that at approximately 10 p.m.,
the volume of the IV fluids was decreased, as Jeffrey's vital signs
had stabilized by that time. Climaco testified that he never
listened for rales or other problematic lung sounds after 10 p.m.
and that he never considered pulmonary edema as a possible
diagnosis. Climaco was not present when Shah was intubating
Jeffrey. He came back into the room after the code was called.
Shah's testimony directly conflicts with that of Pietrzyk, the
respiratory therapist. In particular, Shah remembered only one
instance in which Pietrzyk said that he could not hear any breath
sounds. Shah testified that when Pietrzyk said that he could not
hear any breath sounds, Shah listened for breath sounds himself and
realized that Pietrzyk was right. Shah's nurse anesthetist then
immediately corrected the tube placement. Shah estimated that only
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