Freeman v. Petroff
State: Illinois
Court: 5th District Appellate
Docket No: 5-94-0508
Case Date: 05/16/1997
NO. 5-94-0508
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
SARAH ANN FREEMAN, by and through ) Appeal from the
her Father and Next Friend, Scott ) Circuit Court of
Freeman, SCOTT FREEMAN, and LISA ) Madison County.
FREEMAN, )
)
Plaintiffs-Appellants, ) No. 90-L-362
)
v. )
)
DENNIS J. PETROFF, M.D., ) Honorable
) P. J. O'Neill,
Defendant-Appellee. ) Judge, presiding.
_________________________________________________________________
JUSTICE GOLDENHERSH delivered the opinion of the court:
Plaintiffs, Sarah Ann Freeman, a minor, by and through her
father and next friend, Scott Freeman, and Scott Freeman and Lisa
Freeman, Sarah Ann's parents, appeal from a judgment of the circuit
court of Madison County entered on a jury verdict in favor of
defendant, Dr. Dennis J. Petroff. This court in Freeman v.
Petroff, 275 Ill. App. 3d 904, 656 N.E.2d 453 (1995), reversed the
judgment and remanded the cause for a new trial. Defendant then
filed a petition for leave to appeal and a motion for supervisory
order with our supreme court, requesting that the supreme court
enter a supervisory order requiring this court to sustain the
verdict and judgment of the trial court in accordance with the
court's opinion in Leonardi v. Loyola University of Chicago, 168
Ill. 2d 83, 658 N.E.2d 450 (1995), filed shortly after this court's
decision in Freeman. On January 31, 1996, the supreme court denied
defendant's petition for leave to appeal and, pursuant to its
supervisory authority, remanded this cause to the appellate court
for further consideration in light of Leonardi. Freeman v.
Petroff, 165 Ill. 2d 550, 660 N.E.2d 544 (1996).
On remand, defendant, relying upon Leonardi, asserts that this
court erred in its determination that to submit the long form of
Illinois Pattern Instructions, Civil, No. 12.04 (3d ed. 1989)
(hereinafter IPI Civil 3d No. 12.04), a party alleging the
negligence of a nonparty as the sole proximate cause of plaintiff's
injury must establish a standard of care and demonstrate the
nonparty's deviation from that standard. We affirm our initial
holding in Freeman for the reasons stated below.
A detailed recitation of the facts is not necessary since they
were previously set forth in the earlier opinion. Any additional
facts will be discussed in this disposition.
Defendant posits that in Leonardi our supreme court held that
a defendant may "endeavor to establish by competent evidence that
the conduct of a third person, or some other causative factor, is
the sole proximate cause of plaintiff's injuries" and that to give
the second paragraph of IPI Civil 3d No. 12.04, all that is
required is that there be some evidence in the record to support
giving the instruction. Leonardi, 168 Ill. 2d at 101, 658 N.E.2d
at 459. Defendant further contends that under Leonardi, a
defendant who wants to instruct on IPI Civil 3d No. 12.04 is not
required to prove a prima facie case. Rather, a defendant must
meet an evidentiary standard substantially less stringent than the
plaintiff's burden of proof, namely, a defendant need only present
"evidence tending to show" that the conduct of a nonparty or some
other causative factor was the sole proximate cause of the injury
in question and that this evidence may be slight.
In Leonardi, the decedent, who was seven months pregnant, was
admitted to Loyola University Medical Center because her water
broke prematurely and her pregnancy was considered high risk,
requiring monitoring. Subsequent to admission, the decedent began
to hemorrhage. She was examined by a senior resident, who
contacted Dr. Thomas Tierney, decedent's attending physician. Dr.
Tierney instructed the hospital staff not to perform a cesarean
section until he arrived. Upon arrival, Dr. Tierney performed the
cesarean section. When he attempted to remove the placenta,
massive bleeding occurred and the decedent went into hypovolemic
shock. Because the placenta was abnormally attached to the uterine
wall, Dr. Tierney performed a hysterectomy. After surgery the
decedent was given supplemental oxygen by mask.
The following day, Dr. Karlman, a resident, ordered the
removal of the decedent's oxygen mask. Shortly thereafter, the
decedent began to grow restless, had cyanotic lips, was perspiring
heavily, and complained of abdominal pain. A blood-gas test
revealed that the decedent was experiencing respiratory
difficulties, and she was given oxygen by mask. The decedent's
blood pressure dropped and she suffered respiratory arrest. An
emergency pulmonary embolectomy was performed. The decedent's life
was saved; however, she suffered irreversible brain damage. The
decedent could not perform any activity of daily living, such as
walking, eating, dressing, etc., nor was she able to speak. The
decedent was discharged to a nursing home, where she died five
years later. The decedent's estate brought a medical malpractice
action against Loyola University Medical Center and certain
resident physicians, the anesthesiologists, and Dr. Tierney, who
died subsequent to the bringing of the suit.
The plaintiff in Leonardi argued that the trial court
improperly tendered the second paragraph of IPI Civil 3d No. 12.04
because the defendant did not plead the sole proximate cause of Dr.
Tierney as an affirmative defense and that there was no evidence in
the record to support giving the second paragraph of the
instruction. The Leonardi court held that a general denial of any
proximate cause is sufficient for the defendant to raise the
defense and that the defendant has the right "to endeavor to
establish by competent evidence that the conduct of a third person,
or some other causative factor, is the sole proximate cause of
plaintiff's injuries." Leonardi, 168 Ill. 2d at 101, 658 N.E.2d at
459. The court in Leonardi further held that the second paragraph
of IPI Civil 3d No. 12.04 can be given where there is some evidence
in the record to support the theory of the instruction. The court
stated that the evidence supporting the submission of the long form
of IPI Civil 3d No. 12.04 may be slight and that a reviewing court
may not reweigh it or determine if it should lead to a particular
conclusion. Leonardi, 168 Ill. 2d at 100, 658 N.E.2d at 458. The
Leonardi court concurred with the trial court that there was
sufficient evidence in the record of Dr. Tierney's involvement to
justify giving the second paragraph of IPI Civil 3d No. 12.04.
Leonardi is readily distinguishable from the case at bar. In
Leonardi, the evidence showed that Dr. Tierney was the sole
proximate cause of the injuries the decedent sustained. Expert
testimony demonstrated that Dr. Tierney was the decedent's treating
physician and was responsible for the medical treatment rendered to
her. Most significantly, the named defendants, except for Dr.
Balasaraswathi, were resident physicians at Loyola and were
required to follow Dr. Tierney's orders regarding the decedent's
medical care. Further, Dr. Balasaraswathi, a defendant and one of
the decedent's anesthesiologists, was called by the plaintiffs.
Dr. Balasaraswathi testified that "the physician or nurse who was
taking care of decedent should have, based on accepted medical
practice, immediately administered to decedent oxygen and blood gas
test." Leonardi, 168 Ill. 2d at 95, 658 N.E.2d at 456. On cross-
examination, it was made clear that Dr. Balasaraswathi "was
referring in his direct examination to Dr. Tierney as someone who
might have deviated from the standard of care." Leonardi, 168 Ill.
2d at 95, 658 N.E.2d at 456. Clearly, the evidence in Leonardi
supported a sole-proximate-cause instruction.
Here, unlike Leonardi, there is no evidence that the nonparty,
Children's Hospital, was the sole proximate cause of Sarah Ann's
injuries. In their complaint, plaintiffs allege that defendant
negligently failed to take steps to adequately and timely diagnose
preeclampsia in Lisa. Because defendant failed to make a timely
diagnosis and order the appropriate medical treatment of Lisa,
Sarah Ann was prematurely born and sustained severe and permanent
injuries.
After reviewing the contents of the record, we believe that
there is sufficient evidence to support plaintiffs' allegations
that defendant failed to make a timely diagnosis of Lisa's illness
and order the appropriate medical treatment. While defendant's
negligent conduct in rendering medical care to Lisa was not the
sole proximate cause of Sarah Ann's injuries, his conduct was a
proximate concurring cause, and but for the conduct, the injury
would probably have not resulted. Kincl v. Hycel, Inc., 56 Ill.
App. 3d 772, 787-88, 372 N.E.2d 385, 389 (1977). As a consequence,
it was error for the trial court to tender the long form of IPI
Civil 3d No. 12.04.
At trial, Dr. Stanley Warner, an obstetrician, testifying on
behalf of plaintiffs, stated that defendant should have evaluated
Lisa in his office before March 22, 1988, because Lisa's calls to
defendant reporting swelling, plus the development of the
additional symptoms of nausea, heartburn, vomiting, and headaches,
could be indicative of preeclampsia. Dr. Warner further testified
that an examination of Lisa to determine her blood pressure and
weight gain, along with a urinalysis for protein, was necessary to
discern the presence of pregnancy-induced hypertension or
preeclampsia. Dr. Warner stated that defendant definitely should
have examined Lisa on March 18, 1988, when she called complaining
of headaches, nausea, and heartburn, as well as swelling, because
she presented with more symptoms associated with hypertension of
pregnancy and needed to be evaluated at that point. Dr. Warner
opined that it was not appropriate for defendant to merely
prescribe, via the telephone, white soda and crackers, in lieu of
examining Lisa. Dr. Warner also stated that when Scott Freeman
contacted defendant the evening of Sunday, March 20, 1988, to
report the worsening of Lisa's symptoms, Lisa should have been seen
in an emergency room or hospital where her vital signs and blood
pressure could have been taken and her urine checked. Defendant's
prescription of an antacid and Tylenol was inappropriate treatment
according to Dr. Warner.
Lisa finally came in for an office visit on March 21, 1988.
Dr. Warner testified that Lisa's medical chart did not indicate
that her blood pressure was checked or that she was weighed.
Lisa's urine was not checked because she was unable to provide a
urine sample. Dr. Warner opined that Lisa showed signs of
preeclampsia and needed to be hospitalized to determine her status
in terms of disease progression and not sent home with nausea
medication and recommended bed rest.
Dr. Warner next testified regarding the differences between
severe preeclampsia and mild preeclampsia. According to Dr.
Warner, for mild preeclampsia, bed rest in the hospital is the
treatment of course for a woman who, like Lisa, develops the
disease early in pregnancy. Dr. Warner stated that in a hospital
the woman gets complete bed rest while the nursing staff monitors
the patient's condition. The goal of this treatment is to prolong
the pregnancy to allow the fetus to mature, thereby improving the
outcome of the child. In the case of severe preeclampsia, the
mother and baby are at risk of having severe problems necessitating
immediate delivery of the infant. Dr. Warner opined that had
defendant examined Lisa earlier, he would have discovered the
disease process sooner. Lisa probably could have been hospitalized
and her pregnancy prolonged by perhaps two to four weeks, thereby
affecting the outcome of the child. Finally, Dr. Warner stated
that defendant's conduct in rendering medical care to Lisa fell
below the national standard of care for practicing obstetricians.
Dr. Robert Karl Sigman, a perinatologist or maternal fetal
medicine specialist, testified on behalf of defendant. On cross-
examination, Dr. Sigman testified that Lisa had one of the major
predisposing factors of preeclampsia; she was nulla parity, meaning
she had not previously given birth. Regarding defendant's failure
to record Lisa's blood pressure and weight on her March 21, 1988,
visit to defendant's office, Dr. Sigman stated he could have
imagined that defendant checked Lisa's blood pressure and weight
because it is a common practice. However, Dr. Sigman conceded that
his opinion regarding whether defendant checked Lisa's blood
pressure and weight was "supposition."
Dr. Sigman next testified that by the office visit on March
22, 1988, when defendant checked Lisa's blood pressure, weight, and
urine, she had severe preeclampsia. Dr. Sigman agreed that the
March 22, 1988, office visit was defendant's first opportunity to
diagnose Lisa's illness because it was the first time defendant
checked her blood pressure, weight, and urine sample since early
March when she first began to report symptoms. In response to
plaintiffs' counsel's questions concerning the early detection of
preeclampsia in its mild form, Dr. Sigman explained that
preeclampsia may present in either the mild or severe form and that
it could be mild and stay mild for the duration of the pregnancy or
it could suddenly become severe. Dr. Sigman opined that Lisa had
severe preeclampsia at the time of her eventual diagnosis on March
22, 1988, but that he did not know if that was the way the illness
initially presented. A determination of whether Lisa presented
with mild preeclampsia could not be made because no blood pressure,
urinalysis, or weight was obtained from Lisa prior to the office
visit on March 22, 1988.
Once it was determined that Lisa had severe preeclampsia, she
was hospitalized, at Oliver Anderson Hospital in Maryville, but was
later transferred to Jewish Hospital in St. Louis, Missouri. At
Jewish Hospital, Dr. Michael Nelson confirmed the diagnosis of
severe preeclampsia and determined that the baby would need to be
delivered within hours. At trial, expert testimony concurred that
when a pregnant woman develops severe preeclampsia, both mother and
infant are at risk and that the baby must be delivered.
At birth Sarah Ann had a gestational age of 28 weeks and was
approximately nine weeks premature. She weighed only one pound, 11
ounces. Because of her prematurity, Sarah Ann was at risk for the
development of problems related to prematurity. Expert witnesses
for both plaintiffs and defendant testified that the medical
problems Sarah Ann ultimately experienced are commonly experienced
by premature infants.
At trial, plaintiff's expert, Dr. Arthur Prensky, child
neurologist, reviewed Sarah Ann's discharge diagnoses, which
included hyaline membrane disease progressing to bronchial
pulmonary dysplasia, pulmonic stenosis with atrial septal defect,
status post patent ductus arteriosus (PDA) ligation, apnea and
bradycardia, staph aureus pneumonia resolved, bilateral
periventricular leukomalacia (PVL), and severe prematurity. Dr.
Prensky testified that hyaline membrane disease, PDA, apnea and
bradycardia, and PVL are primarily associated with prematurity,
although they can appear in nonpremature infants. Regarding the
staph aureus pneumonia, Dr. Prensky opined that while it is not
limited to premature infants, these infants tend to be more
susceptible to it because premature babies are more likely to be on
a respirator, and in very early prematures, their immature immune
systems cannot fight off infection as well as older infants. Dr.
Prensky stated that PVL, which results from inadequate blood flow
to certain regions of the brain, is more apt to occur in premature
infants and that the incidence of PVL increases the more premature
the infant. Dr. Prensky further opined that Sarah Ann's
development of PVL was caused by events related to her prematurity.
Dr. Michael Maurer, a neonatologist testifying for defendant,
concurred with Dr. Prensky concerning the relationship between
gestational age and the incidence of PVL in the following exchange
with defense counsel:
"Q. Now, with respect to the PVL, periventricular
leukomalacia, is there a relation between the gestational age
of the infant and the neurologic problem such as PVL that are
suffered by a child, even cerebral palsy?
A. Sure. There is a relationship in the sense that one
sees an increasing, excuse me, an increasing incidence of PVL
and increasing frequency of PVL and increasing frequency of
cerebral palsy as you descend in gestational age.
Q. That means at a lower age--
A. One tends to see more of it. The farther out you
get. The farther, closer you get to term, you see less of it.
It doesn't appear as a problem to deal with. You simply see
less of it.
Q. Is there a gestational age where the likelihood of
neurological damage such as PVL or cerebral palsy reduces
substantially?
A. I usually view it, sorry, more as a, as I said, a
progressive reduction as one goes out in gestational age.
Certainly at--babies at term, we do see PVL occasionally in
that population, have a much reduced incidence, but as one
descends in gestation the incidence gets higher and higher.
Q. Okay. And would there be a--would there be a
gestational time when you see much less of it?
A. I would say once you leave prematurity, which is
generally at around thirty-six, thirty-seven weeks in most people's
view, that you tend to see much less PVL."
During cross-examination, Dr. Mauer acknowledged that infants
born at 27 to 28 weeks of gestation frequently experience problems
that can lead to PVL and that Sarah Ann experienced some of these
problems:
"[Plaintiffs' counsel] Q. Okay. And the kinds of
problems that she experienced are the kinds of problems that
you would expect a premature infant at twenty-seven or twenty-
eight weeks to likely encounter?
A. Those are problems that many of those patients
encounter, except for the PVL. We don't, you know, thankfully
see all that much of that, but--and except for the pulmonic
stenosis and ASD, atrial septal defect, the hole in her
heart--those are unique to her.
Q. The kind of events that can set up the setting for
the development of periventricular leukomalacia, though, and
even some of them that you found here, occur much more
frequently with the premature of twenty-seven to twenty-eight
weeks than say a term or even thirty-two or an older
gestational age infant; isn't that true?
A. Well, we presume that they do in the sense that, as
I said before, there's an increasing incidence of that problem
along with others as you descend in gestational age, right."
As illustrated above, because of her premature birth, Sarah
Ann was predisposed to developing an array of medical conditions
which resulted in her injuries.
In sum, the confluence of events surrounding the delayed
diagnosis of preeclampsia in Lisa and the premature birth of Sarah
Ann are part of a natural and ongoing sequence which gave rise to
Sarah Ann's injuries. Expert testimony established that to
accurately diagnose preeclampsia, a physician must check the
woman's blood pressure and weight gain, as well as perform a
urinalysis for protein. Defendant did not examine Lisa and did not
conduct the appropriate tests for identifying the disease until the
March 22, 1988, office visit, several weeks after Lisa began
reporting symptoms to defendant. Defendant's failure to properly
examine Lisa earlier delayed the diagnosis of preeclampsia, limited
the treatment options for prolonging the pregnancy, and led to the
premature birth of Sarah Ann. Because Sarah Ann was born nine
weeks premature, she was at risk for medical problems primarily
associated with prematurity. Sarah Ann suffered a number of these
medical problems, resulting in PVL and spastic cerebral palsy.
Clearly, defendant's conduct was a proximate cause of Sarah Ann's
injuries.
In light of the evidence presented, the record shows that the
nonparty, Children's Hospital, was not the sole proximate cause of
Sarah Ann's injuries. Thus, there was no basis in the record upon
which to justify giving the second paragraph of IPI Civil 3d No.
12.04. Accordingly, the trial court erred in tendering the long
form of the instruction to the jury.
The recent supreme court decision in Holton v. Memorial
Hospital, No. 79957 (April 18, 1997), supports this position. Our
supreme court reviewed the situation with the following:
"Defendant's specific challenge is to the omission from
another instruction, instruction no. 14, of a sole proximate
cause provision based on conduct of third parties. As given
to the jury, instruction no. 14 stated that `more than one
person may be to blame for causing an injury. If you decide
that the defendant was negligent and that its negligence was
a proximate cause of injury to the plaintiff, it is not a
defense that some third person who is not a party to the suit
may also have been to blame.' See IPI Civil 3d No. 12.04.
According to defendant, the second paragraph of IPI Civil 3d
No. 12.04 should have been included, as follows: `However, if
you decide that the sole proximate cause of injury to the
plaintiff was the conduct of some person other than the
defendant, then your verdict should be for the defendant.'
Defendant argues that the inclusion of this provision would
have properly allowed the jury to find that the conduct of Dr.
Doubek, Dr. Murphy, or Dr. Sprich in failing to properly
diagnose and treat Mrs. Holton, was the sole proximate cause
of her injury.
We reject defendant's contention that the trial court
abused its discretion in declining to include the above-quoted
provision in instruction no. 14. A defendant is not
automatically entitled to a sole proximate cause instruction
wherever there is evidence that there may have been more than
one, or concurrent, causes of an injury or where more than one
person may have been negligent. Instead, a sole proximate
cause instruction is not appropriate unless there is evidence
that the sole proximate cause (not `a' proximate cause) of a
plaintiff's injury is conduct of another person or condition.
See Ballweg v. City of Springfield, 114 Ill. 2d 107, 121[, 499
N.E.2d 1373] (1986); cf. Leonardi v. Loyola University, 168
Ill. 2d 83[, 658 N.E.2d 450] (1995). The usage notes
following IPI Civil 3d No. 12.04 caution that the sole
proximate cause provision `should be used only where there is
evidence tending to show that the sole proximate cause of the
occurrence was the conduct of a third person.'
In the case at bar, defendant did not present evidence or
argue that it was only the negligence of persons other than
the hospital employees which proximately caused plaintiffs'
injury. Instead, defendant attempted to establish that no
medical negligence had occurred at all. Defendant did not
charge that plaintiffs' treating physicians were negligent in
their acts or omissions. On the contrary, much of the defense
relied on the rationale that the treating physicians'
diagnosis and treatment decisions were proper in light of the
circumstances in which the decisions were made. For example,
there was evidence that a cancerous tumor appeared to be the
most likely diagnosis based on the information upon which the
treating doctors based their decisions. The jury, however,
found in favor of plaintiffs, under whose theory of the case
defendant's negligence proximately caused the treating
physicians' misdiagnosis. Because neither plaintiffs nor
defendant asserted at trial that the treating physicians
themselves were negligent, we conclude that the trial court
did not err in denying defendant's request for a sole
proximate cause instruction based on the negligence of third
parties." (Emphasis in original.) Holton, slip op. at 30-31.
Lastly, defendant insists that under Leonardi a defendant need
only present some evidence tending to show that the conduct of a
nonparty or some other causative factor was the sole proximate
cause of the plaintiff's injury in order to instruct the jury using
the long form of IPI Civil 3d No. 12.04. Defendant further asserts
that this court erred in requiring that where the medical
malpractice of a nonparty is alleged, the defendant must establish
through expert testimony the generally accepted standard of care
for the particular situation, a deviation from that standard, and
a causal connection between the nonparty's deviation and the
plaintiff's injury, in order to give the second paragraph of IPI
Civil 3d No. 12.04. We disagree.
While Leonardi does not specifically address the issue of a
standard of care by which to determine whether there is a
sufficient evidentiary basis to give an instruction that includes
the second paragraph of IPI Civil 3d No. 12.04, that case is
instructive on this point. In Leonardi, Dr. Tierney's conduct was
discussed within the context of an established standard of care.
Dr. Balasaraswathi, on direct examination, testified regarding the
accepted medical practice for a patient displaying the decedent's
symptoms, which indicated, among other things, a pulmonary
embolism.
Holton is also instructive on this issue. The last paragraph
dealing with IPI Civil 3d No. 12.04 clearly indicates that
negligence of a third party is the standard:
"In the case at bar, defendant did not present evidence
or argue that it was only [emphasis in original] the
negligence of persons other than the hospital employees which
proximately caused plaintiffs' injury. Instead, defendant
attempted to establish that no medical negligence had occurred
at all. Defendant did not charge that plaintiffs' treating
physicians were negligent in their acts or omissions. On the
contrary, much of the defense relied on the rationale that the
treating physicians' diagnosis and treatment decisions were
proper in light of the circumstances in which the decisions
were made. For example, there was evidence that a cancerous
tumor appeared to be the most likely diagnosis based on the
information upon which the treating doctors based their
decisions. The jury, however, found in favor of plaintiffs,
under whose theory of the case defendant's negligence
proximately caused the treating physicians' misdiagnosis.
Because neither plaintiffs nor defendant asserted at trial
that the treating physicians themselves were negligent, we
conclude that the trial court did not err in denying
defendant's request for a sole proximate cause instruction
based on the negligence of third parties." (Emphasis added.)
Holton, slip op. at 31.
How else does a party prove negligence in a case such as this
except by establishing a standard of care, a deviation from that
standard, and a causal connection between the nonparty's deviation
and the plaintiff's injury?
In Leonardi, the defendant's cross-examination of Dr.
Balasaraswathi revealed that Dr. Balasaraswathi was referring to
Dr. Tierney in his direct examination as someone who might have
deviated from the standard of care. Likewise, the defendant's
hypothetical question posed to Dr. Balasaraswathi regarding Dr.
Tierney's conduct was premised on the standard of care for the
particular situation.
Contrary to defendant's assertion that a defendant need only
present evidence tending to show the negligence of a nonparty
without reference to a standard of care and a deviation therefrom
by the nonparty in order to submit the long form of IPI Civil 3d
No. 12.04, the authorities cited by defendant implicitly refer to
a standard of care the nonparty deviated from in support of their
decision that the long form of IPI Civil 3d No. 12.04 should be
given. In Ellig v. Delnor Community Hospital, 237 Ill. App. 3d
396, 603 N.E.2d 1203 (1992), the court, in determining that Dr.
Taylor was the sole proximate cause of the decedent's fatal injury,
stated:
"Experts testified that Dr. Taylor could have obtained a
precise reading on the baby's heart activity to determine
exactly the baby's condition by using an available
electrocardiogram through an internal monitor, instead of the
external listening device which was in fact used. Having
properly assessed the baby's condition, defendant's expert
opined that Dr. Taylor should have performed a cesarean within
eight minutes by using local anesthesia, assuming the placenta
of the second twin had separated from the wall of the mother's
uterus. Thus, there was evidence that Dr. Taylor was the sole
proximate cause of the fatal injury by delaying and not
immediately performing a cesarean by local anesthesia to save
a severely compromised child." (Emphasis in original.)
Ellig, 237 Ill. App. 3d at 407, 603 N.E.2d at 1211.
Clearly, the court is making reference to an established standard
of care and the nonparty's deviation from that standard.
While the sufficiency of the evidentiary basis for submission
of the long form of IPI Civil 3d No. 12.04 was not at issue in
Guzeldere v. Wallin, 229 Ill. App. 3d 1, 593 N.E.2d 629 (1992),
that case does examine the nonparty's negligence with respect to
whether the defendant physician breached the applicable standard of
care by not leaving orders for the nurse to contact him if the
decedent infant's condition deteriorated. Expert witnesses for
both plaintiff and defendant testified as to the signs of
respiratory distress which indicated a deterioration of the
decedent's condition, requiring notification of the physician. All
experts testified that, when the decedent's respirations increased
from 68 to 72 while asleep, the nurse should have contacted the
defendant physician because the infant's condition had
deteriorated. Although no standard of care was set forth for
nurses, expert testimony did establish that the nurse deviated from
the standard of care for caring for children with respiratory
distress when she failed to call the physician when the infant's
respirations increased. Therefore, the evidence supported the
giving of IPI Civil 3d No. 12.04 in its entirety. Accordingly, we
believe that this court did not err in its reasoning in its
previous opinion in this case concerning the need to establish a
standard of care and a deviation therefrom by a nonparty in order
to determine whether there is an evidentiary basis to support
giving the second paragraph of IPI Civil 3d No. 12.04. We conclude
that, in the case at bar, there was an insufficient evidentiary
basis to support giving a jury instruction that the sole proximate
cause of the occurrence was a third party's conduct.
For the foregoing reasons, the judgment of the circuit court
of Madison County is reversed, and the cause is remanded for a new
trial.
Reversed and remanded.
KUEHN, P.J., and HOPKINS, J., concur.
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