Eaglin v. Cook County Hosp., 1-90-1581

• Decision Date: 20 March 1992
• Docket Number: No. 1-90-1581,1-90-1581
• Parties: , 169 Ill.Dec. 718 Daisy EAGLIN, as Special Administratrix of the Estate of Carrie Dunklin, Deceased, Plaintiff-Appellee, v. COOK COUNTY HOSPITAL and Cook County Board of Commissioners, Defendants-Appellants. First District, Fifth Division
• Court: United States Appellate Court of Illinois

Page 205

592 N.E.2d 205

227 Ill.App.3d 724, 169 Ill.Dec. 718

Daisy EAGLIN, as Special Administratrix of the Estate of Carrie Dunklin, Deceased, Plaintiff-Appellee, v. COOK COUNTY HOSPITAL and Cook County Board of Commissioners Defendants-Appellants.

No. 1-90-1581.

Appellate Court of Illinois,

First District, Fifth Division.

March 20, 1992.

Jack O'Malley, Chicago (Joan S. Cherry, Frank Oles, Maureen D. Yamashiro, of counsel) for defendants-appellants.

Donald A. Shapiro, Ltd., Chicago (Donald A. Shapiro and David A. Statham, of counsel) for plaintiff-appellee.

Presiding Justice McNULTY delivered the opinion of the court.

This is a wrongful death action brought by plaintiff Daisy Eaglin, as administratrix of the estate of her sister, Carrie Dunklin, against defendants Cook County Hospital and Cook County Board of commissioners, alleging medical malpractice. The jury returned a verdict for plaintiff and awarded damages in the amount of $1.5 million upon which the court entered judgment. The issues raised by defendants on appeal are: (1) whether the trial court erred in giving the jury Illinois Pattern Jury Instruction No. 5.01 (2d ed. 1971) (IPI Civil 2d No. 5.01) (hereinafter IPI 5.01); (2) whether plaintiff's counsel improperly stated in his closing argument that the jurors could draw a negative inference from defendants' failure to provide doctors' orders and produce other unidentified nurses; (3) whether the trial court erred in submitting a general, as opposed to an itemized, verdict form; (4) whether the jury was improperly instructed regarding the measure by which to award damages and the factors that could be considered; and (5) whether the award of damages in the amount of $1.5 million is excessive and unsupported by the evidence presented at trial.

In 1981, 27-year-old Carrie Dunklin contracted systematic lupus erythematosus (lupus), an incurable but treatable rheumatical disease, while doing missionary work in Haiti. Upon returning to the United States to receive treatment of her lupus, Carrie was admitted to Cook County Hospital. At the time, Carrie was suffering from anemia, thrombocytopenia malar rash, and alopecia. Carrie remained at the hospital for over two months where she underwent surgery for a lesion on her left thigh and was given the medication prednisone, a highly potent steroid medication, of which psychosis is a recognized side effect. In December 1981, after a flare-up of her lupus, her dose of prednisone was increased. During this admission she became catatonic, refusing to talk or eat and began having paranoid thoughts. Carrie was discharged from Cook County Hospital in February 1982, after her symptoms were controlled and her prednisone dosage was decreased.

From February to June 1982, while Carrie recuperated at her sister's home, she remained on a low level of prednisone. On June 19, 1982, Carrie was again admitted to Cook County Hospital after developing an abscess on her leg and her prednisone medication was increased. Upon stabilization she was released to her sister's care. On June 29, 1982, Carrie overdosed by taking 50 prednisone tablets at once and was rushed to Little Company of Mary Hospital where her stomach was pumped. Carrie told the hospital social worker that she had not intended to commit suicide when she took the excess medication. Later that day, Carrie was transferred and admitted to Cook County Hospital due to her ongoing treatment at that hospital.

Upon arrival in the Cook County emergency room, Carrie was examined by Dr. Davila, an intern in internal medicine. Carrie was prescribed a treatment plan which included 40 milligram per day of prednisone. Dr. Davila made a differential diagnosis of (1) abnormal mental status secondary to lupus central nervous system involvement or (2) secondary depression of prednisone overdose. At the time of Carrie's admission to Cook County Hospital, the hospital had written protocols for dealing with suicidal patients. The protocol required that "the physician write orders for 'suicidal precautions' on the order sheet and elaborate on the patient's condition in progress notes." Despite the fact that Dr. Davila recalled placing Carrie on suicide precautions which included one-to-one nursing or continual observation of the patient, the hospital chart revealed no orders for suicide precautions. She was placed on Ward 35 which provided maximum nursing attention and the nursing written orders note the use of bed rails and the possibility of restraints if necessary. In an interview with resident Dr. Gogna, Carrie said that she had not tried to commit suicide. Dr. Gogna suspected that Carrie was suffering an adverse reaction to her prednisone medication. Moreover, Dr. Peter Orris, Carrie's attending physician, examined her on June 30, 1982, and concluded that Carrie suffered from lupus with depression and her depression was either caused by the prednisone or the lupus itself.

On June 30, 1982, Carrie was given a psychiatric evaluation by nurse Evangeline Basa, a member of a psychiatric consultation team. Although nurse Basa did not testify at trial, the record reveals that after meeting with Carrie, Basa drafted a report stating her impression that Carrie was psychiatrically stable and not suicidal. Carrie told Basa that she was not willing to receive any psychiatric intervention or counseling. Nurse Basa recommended that Carrie be motivated to have psychiatric out-patient follow-up and that there be monitoring of the patient's behavior and moods. Dr. Orris testified that after receiving the psychiatric team's assessment, he concluded that Carrie no longer needed suicide precautions. Therefore, Carrie was transferred to Ward 65 which was less open for patient observation than Ward 35. Carrie was placed on the sixth floor of the hospital with unrestricted access to an unlocked and unguarded fire escape balcony which was used by the patients to go out on and smoke cigarettes.

Resident Bruce Bernard, assigned to care for Carrie on July 1, testified that Carrie initially informed him that she was depressed because she had lupus and newly open wounds. She further expressed depression over the fact that she had to rely on her sister and could not work. Dr. Bernard observed that from July 1 to July 4, 1982, Carrie showed a clinical improvement and it appeared that her depression was lifting. However, on July 4, Carrie jumped from the sixth floor fire escape balcony to her death.

On June 29, 1983, plaintiff, Daisy Eaglin, filed a wrongful death medical malpractice suit against Cook County Hospital, the Cook County Board of Commissioners, Dr. Orris, Dr. Gogna, Dr. Davila, Dr. Bernard and nurse Basa. Plaintiff brought this suit on behalf of Carrie's mother, Pearlie Dunklin, and Carrie's 12 brothers and sisters. Plaintiff alleged in her third amended complaint that defendants:

"(a) Failed to properly evaluate Carrie Dunklin for continued suicide risk;

(b) Failed to take appropriate measures to protect Carrie Dunklin against further suicide attempts;

(c) Negligently placed Carrie Dunklin on a floor of the hospital with unrestricted access to an unlocked fire escape balcony;

(d) Failed to properly treat Carrie Dunklin for her suicidal condition and depressive mood disorder;

(e) Failed to follow and enforce its own protocol for treatment and care of patients at increased risk for suicide."

It was stipulated by the parties prior to trial that plaintiff would voluntarily dismiss all individual defendants on the condition that these individuals would be available as adverse witnesses in plaintiff's case in chief against the hospital and the Board of Commissioners. The jury awarded plaintiff $1.5 million and defendants appealed.

Defendants first contend that the trial court erred in giving the jury plaintiff's tendered IPI 5.01 which instructed the jury that an adverse inference could be drawn from defendants' failure to present the testimony of nurse Evangeline Basa. This instruction permits a jury to draw an adverse inference from a party's failure to offer evidence or to produce a witness within his power to produce when: (1) the evidence or witness was under the control of the party and could have been produced by the exercise of reasonable diligence; (2) the evidence or witness was not equally available to the adverse party; (3) a reasonably prudent person under the same or similar circumstances would have offered the evidence or produced the witness if he believed the testimony to be in his favor; and (4) no reasonable excuse for the failure has been shown. This instruction is given if the trial court determines that a party would in all likelihood produce the witness or other evidence unless the witness or evidence was unfavorable to that party. (Lewis v. Cotton Belt Route (1991), 217 Ill.App.3d 94, 159 Ill.Dec. 995, 576 N.E.2d 918.) Whether to give this instruction is a decision within the sound discretion of the trial court and is subject to reversal only when a clear abuse of discretion appears on the record. Roeseke v. Pryor (1987), 152 Ill.App.3d 771, 105 Ill.Dec. 642, 504 N.E.2d 927; Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill.App.3d 835, 78 Ill.Dec. 526, 462 N.E.2d 645.

Defendants maintain that nurse Basa was not within their control at the time of trial because prior to trial she had resigned from Cook County Hospital. In support of this argument, defendants cite Wood v. Mobil Chemical Co. (1977), 50 Ill.App.3d 465, 8 Ill.Dec. 701, 365 N.E.2d 1087, wherein the court, although affirming the judgment in favor of the plaintiff, found that it was error for the trial court to tender instruction 5.01 to the jury since there was no evidence that at the time of trial the nurse was still employed by defendant. We, however, are more persuaded by the decision in Tonarelli v. Gibbons (1984), 121 Ill.App.3d 1042, 77 Ill.Dec. 408, 460 N.E.2d 464, wherein a wrongful death action was brought against a...