Freeman By and Through Freeman v. Petroff

• Decision Date: 16 May 1997
• Docket Number: No. 5-94-0508,5-94-0508
• Citation: 288 Ill.App.3d 145,680 N.E.2d 453
• Parties: , 223 Ill.Dec. 720 Sarah Ann FREEMAN, By and Through her Father and Next Friend, Scott FREEMAN, Scott Freeman, and Lisa Freeman, Plaintiffs-Appellants, v. Dennis J. PETROFF, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 453

680 N.E.2d 453

288 Ill.App.3d 145, 223 Ill.Dec. 720

Sarah Ann FREEMAN, By and Through her Father and Next Friend, Scott FREEMAN, Scott Freeman, and Lisa Freeman, Plaintiffs-Appellants, v. Dennis J. PETROFF, M.D., Defendant-Appellee.

No. 5-94-0508.

Appellate Court of Illinois Fifth District.

May 16, 1997.

Joseph L. Bauer, Jr., Michael L. Nepple, Bauer & Baebler, St. Louis, MO, for Plaintiffs-Appellants.

Ray Freeark, Freeark, Harvey, Mendillo, Dennis, Wuller & Buser, Belleville, for Defendant-Appellee.

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, 212 Ill.Dec. 130, 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, 212 Ill.Dec. 968, 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, 214 Ill.Dec. 99, 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, 212 Ill.Dec. at 977, 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, 212 Ill.Dec. at 977, 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, 212 Ill.Dec. at 976 658 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, 212 Ill.Dec. at 974, 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, 212 Ill.Dec. at 974, 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, 14 Ill.Dec. 374, 378, 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...