Bauer ex rel. Bauer v. Memorial Hosp.

• Decision Date: 27 November 2007
• Docket Number: No. 5-06-0291.,5-06-0291.
• Citation: 879 N.E.2d 478,377 Ill.App.3d 895
• Parties: Brandon BAUER, an Infant, by Scott BAUER, His Father and Next Friend, and Scott Bauer and Amy Bauer, Individually, Plaintiffs-Appellees, v. MEMORIAL HOSPITAL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

879 N.E.2d 478

377 Ill.App.3d 895

Brandon BAUER, an Infant, by Scott BAUER, His Father and Next Friend, and Scott Bauer and Amy Bauer, Individually, Plaintiffs-Appellees, v. MEMORIAL HOSPITAL, Defendant-Appellant.

No. 5-06-0291.

Appellate Court of Illinois, Fifth District.

November 27, 2007.

Michael A. Pollard, Lindsay A. Philiben, Baker & McKenzie, LLP, Chicago, IL; Edward S. Bott, Robert L. Duckels, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, Attorneys for Appellant.

Rex Carr, The Rex Carr Law Firm, LLC, East St. Louis, IL, Attorney for Appellees.

Justice STEWART delivered the opinion of the court:

The defendant, Memorial Hospital¹ (Memorial), appeals from the judgment of the circuit court of St. Clair County on the jury's verdict in the amount of $7.15 million in favor of the plaintiffs, Brandon Bauer, an infant, by Scott Bauer, his father and next friend, and Scott Bauer and Amy Bauer, individually, and against Memorial in the plaintiffs' medical malpractice action. Memorial raises numerous arguments on appeal. We affirm in part, vacate in part, and remand for further proceedings.

BACKGROUND

Memorial was one of several defendants named in a medical malpractice action filed by the plaintiffs, alleging that the defendants were responsible for causing, or contributing to cause, brain damage and other injuries to Brandon due to their failure to recognize and/or adequately treat his hypoglycemia, i.e., his abnormally low blood sugar. Before trial, the plaintiffs dismissed several of the defendants, including St. Louis Children's Hospital (Children's Hospital). Therefore, when the trial began, the only remaining defendants were Memorial, Dr. Pam Conard, and Dr. Conard's employer, Belleville Emergency Physicians.

Amy Bauer, Brandon's mother, testified that she and her husband, Scott, have two children—Brandon, who was born on December 4, 1998, and Jeremy, who was born on May 13, 2001. Amy is a registered nurse. Amy's pregnancy with Brandon was normal, and he was born on December 4, 1998, at 8:54 p.m. He was given Apgar scores at one and five minutes after birth, and he scored a 9 out of 10 both times. He did not score a 10 because he was blue in color, but his color was normal 10 or 15 minutes after his birth. Amy decided to breast-feed him because she thought that it would make him healthier. He fed well on the evening of his birth and the following day.

On December 6, 1998, the second day after his birth, Brandon fed well until late in the afternoon. Lisa Lyles was the nurse on the 3-to-11 p.m. shift. Amy and Lyles were friends and had worked together before Lyles began working at Memorial. Amy fed Brandon from about 3:15 until 3:35 p.m. Lyles left the room while he fed. When she returned, Amy told her that Brandon had fed well. Amy tried to feed Brandon again at about 3:45 or 4 p.m., but he would not eat. She tried again at about 5:15 or 5:30 p.m., but again, he would not eat. Amy told Lyles that he would not eat. Lyles told Amy that he would eat when he was ready. Lyles approached Amy at approximately 7 p.m. to begin the discharge procedures. Amy told Lyles that Brandon had not eaten since the 3:15 p.m. feeding. Lyles said that it was not a concern, that he would eat when he was hungry, that it would be a more relaxed situation when they went home, and that he would eat then.

Lyles had taken Brandon's temperature at approximately 3 p.m., and it was normal. Amy testified that she first became aware that his temperature was low at approximately 7 p.m. when Lyles took his axillary temperature, i.e., the temperature under his armpit. Amy testified that Lyles told her that his temperature was 35 degrees Celsius, which Amy thought was approximately 96 degrees Fahrenheit but which was, in fact, 95 degrees Fahrenheit. Lyles told Amy that Brandon's temperature would have to be 98 degrees Fahrenheit before he could be discharged. She told Amy to wrap another blanket around him and that she would be back. When she returned, she again took Brandon's temperature, but it was still low. She told Amy to wrap another blanket around him and that she would be back. When she returned, she again took his temperature, but it was still low. At Scott's request, she got a different thermometer and again took Brandon's temperature, but it was still low. She indicated that she was going to take Brandon to another nurse for advice. She took Brandon, who was still wrapped in several blankets, out of the room. Amy testified that when Lyles returned at about 7:45 or 8 p.m., she said that she and the nursery nurse had put Brandon under a warming light for about 15 minutes; that they had then taken his rectal temperature, which was normal; and that he was ready to go home.

Amy had continued to try to feed Brandon until he was discharged at approximately 8 p.m., but he would not eat. At discharge, Amy again expressed concern to Lyles about the fact that Brandon had not eaten since 3:15 p.m. Lyles again told Amy that he would eat when he was hungry, that they would be more comfortable at home, and that she should not worry about it. Lyles told Amy that she would be on duty until 11:30 p.m. and that Amy could call her if she had any problems.

Amy testified that she, Scott, and Brandon left the hospital between 8 and 8:15 p.m. and arrived home at approximately 8:30 p.m. She woke Brandon and tried to feed him, but he still would not eat. When she tried to feed him again at 9 or 9:30 p.m., his eyes rolled back in his head, he seemed limp and groggy, and Amy could not wake him.

Amy testified that she called Lyles and told her that Brandon was limp and groggy, that his eyes had rolled back in his head, and that he would not eat. According to Amy, Lyles told her that babies' eyes roll back in their heads, that he was probably just in a deep sleep, that it was nothing to worry about, that he would eat when he was hungry, and that Amy could call her back again if she continued to have trouble. Lyles did not tell Amy to bring Brandon back to the hospital or to call his doctor.

Amy continued to try to feed Brandon, but he would not eat. Amy testified that at 11 or 11:30 p.m., she called Lyles a second time and told her that Brandon was still not eating. Amy testified that Lyles told her that it was nothing to worry about, to try using a cup to feed him, and if that did not work, to try using a bottle. Lyles did not advise her to call the hospital or the doctor if she continued to have problems. Amy tried feeding Brandon formula with a measuring cup and with a bottle but was unsuccessful.

During the night, Brandon woke up and cried every hour to hour and a half. Each time, Amy got up and tried to feed him, but he would not eat. He had dark and tarry stools. At about 2 or 3 a.m., Amy took Brandon's rectal temperature, which was normal.

Amy testified that at approximately 5 a.m. the following morning, December 7, she called the hospital again and spoke with an unidentified nursery nurse. Amy told the nurse that Brandon had not eaten since 3 or 3:15 p.m. the previous afternoon, that she could not tell if he was urinating but that he was stooling, that he had a weak cry, and that he woke up every hour or hour and a half, but she could not get him to eat. The nurse did not ask Amy about Brandon's temperature, and Amy could not recall whether she told the nurse that several axillary temperatures taken the previous afternoon had been low. The nurse told Amy to put a cold "wash rag" on Brandon's head to wake him up and that he would then eat.

Amy then called her mother, who arrived at approximately 7:30 a.m. Amy's mother tried to wake Brandon but could not do so. He went limp in her arms. They tried to call his doctor, but she was not in the office.

They took Brandon to the emergency room at Memorial, arriving at approximately 8:45 a.m. Amy told the emergency room personnel that Brandon's temperature had been low the previous afternoon and that he was not eating. At that time, he had a blank stare. The emergency room personnel checked his blood-sugar level, and it was extremely low. The emergency room personnel repeatedly tried to start an intravenous line on him but could not do so. Instead, they gave him fluids through a nasogastric tube.

At 10:37 a.m., a team from Children's Hospital arrived and began caring for Brandon. Because they were unable to establish an intravenous line, they did an umbilical cord cutdown instead. They took Brandon to Children's Hospital by helicopter. The following day, he began having seizures, and he was in the hospital until December 30.

Dr. Robert Kirkwood, a radiologist, board certified in diagnostic radiology and neuroradiology, opined that Brandon's brain scans showed permanent damage caused by severe hypoglycemia, that the brain damage had begun at approximately 9 p.m. on the evening of discharge, and that most of the brain damage had occurred before Brandon was diagnosed with severe hypoglycemia at the emergency room the following morning.

Scott Bauer testified regarding Brandon's birth, the medical care he received at Memorial after his birth, Amy's telephone calls to the nurses after he was discharged, and his care at the emergency room. Scott's testimony was generally consistent with Amy's testimony. Scott also testified that he had videotaped approximately two hours of Brandon in his ordinary daily life and that his attorney had edited the videotape down to 40 minutes. The edited version was played for the jury.

Dr. Pam Conard, Brandon's emergency room physician at Memorial, gave a discovery deposition, which was read to the jury. Dr. Conard testified that when Brandon arrived at the emergency room at approximately 9 a.m. on December 7, he was lethargic and jaundiced, and his parents said that he had not eaten since leaving the hospital the day before. The emergency room personnel checked his blood sugar at 9:10 and 9:23 a.m., and his blood-sugar levels were 13 and 11. His temperature...