Hardy v. Cordero, 3-09-0109.

• Court: Appellate Court of Illinois
• Writing for the Court: SCHMIDT delivered the opinion of the court
• Citation: Hardy v. Cordero, 399 Ill.App.3d 1126, 929 N.E.2d 22, 340 Ill.Dec. 718 (Ill. App. 2010)
• Decision Date: 11 May 2010
• Docket Number: No. 3-09-0109.,3-09-0109.
• Parties: Marilyn J. HARDY, Plaintiff-Appellant,v.Martha CORDERO and Medical Arts Associates, Ltd., a Corporation, Defendants-Appellees.

399 Ill.App.3d 1126

929 N.E.2d 22

340 Ill.Dec. 718

Marilyn J. HARDY, Plaintiff-Appellant,v.Martha CORDERO and Medical Arts Associates, Ltd., a Corporation, Defendants-Appellees.

No. 3-09-0109.

Appellate Court of Illinois Third District.

April 8, 2010.

Rehearing Denied May 11, 2010.

COPYRIGHT MATERIAL OMITTED

Stephen T. Fieweger (argued), Katz, Huntoon & Fieweger, P.C., Moline, for Marilyn Hardy.

Richard J. Trinrud (argued), Bozeman, Neighbour, Patton & Noe, LLP, Moline, for Martha Cordero.

Justice SCHMIDT delivered the opinion of the court:

Plaintiff, Marilyn Hardy, filed this medical malpractice claim against nurse Martha Cordero and her employer, Medical Arts Associates, Ltd. On plaintiff's motion, the trial was expedited. This medical malpractice case went to jury trial less than 10 months after it was filed. Following a trial in the circuit court of Rock Island County, the jury returned a verdict in defendants' favor. Plaintiff appeals, claiming the trial court erred in denying her motions for a directed verdict, judgment notwithstanding the verdict, and for a new trial.

BACKGROUND

In December of 2006, plaintiff underwent surgery for cancer. Subsequently, on February 23, 2007, she was given an intravenous (IV) infusion of chemotherapy by defendant Martha Cordero, a nurse employed by defendant Medical Arts Associates, Ltd. Specifically, nurse Cordero infused a drug known as Adriamycin.

Adriamycin is a vesicant, a substance that causes tissue blistering if it leaks from a blood vessel. Defendants conceded that there was a leakage (extravasation) of the vesicant drug into Marilyn's tissue.

The protocol in place in February of 2007 at Medical Arts Associates for the management of an extravasation of a vesicant stated, “When extravasation of a vesicant is suspected, stop the infusion.” On February 27, 2008, plaintiff filed suit alleging negligence against nurse Cordero. Defendant Medical Arts Associates was named on a theory of vicarious liability. Trial began on October 20, 2008. The main issue at trial was whether nurse Cordero breached the standard of care by not properly identifying the extravasation and stopping the infusion.

Nurse Cordero testified that when she began the infusion, there was redness at the IV site “the size of a pinky finger.” This initial redness increased to the size of a nickel by the conclusion of the IV. It was pointed out at trial that during her deposition, nurse Cordero stated the redness was the size of her pinky finger with no indication of whether she meant the length or width of her finger. At trial, she clarified that she meant the size of the tip of her pinky finger.

Cordero stated that if the size of the redness was, in fact, the length of her pinky finger, she would have immediately stopped the infusion. However, the redness was the size of the tip of her pinky finger which, given her training and 14 years of experience, was not unusual under any circumstances. Blood return was good, there was no puffiness at the infusion site, and as such, she had no indication of the presence of an extravasation.

Theresa Rasche, a nurse at Medical Arts Associates, testified as an occurrence witness. She agreed with nurse Cordero that there was no “ puffiness” present at the infusion site. She remembered the plaintiff saying that the burning “did not hurt that bad” and she did not see any evidence of extravasation. Nurse Rasche further agreed that blood return is a “big criteria” [sic] regarding evidence of extravasation. It was her observation that the redness observed at plaintiff's IV site was the size of a pencil eraser. She did agree that if the redness increased to the size of a “whole pinky finger,” the IV should be discontinued.

Plaintiff's expert, Michelle Klups, testified that she believed nurse Cordero breached the standard of care applicable to a reasonable careful oncology nurse in the area “because Ms. Hardy complained of burning from the start of the IV, and with that complaint, the IV should have been stopped immediately.” Klups explained that the presence of “any redness is a sign that the infusion should be stopped and it should moved to a different site” regardless of whether the “redness was the size of a pinky finger or nickel sized.”

Dr. Michael Porubcin, an oncologist at Medical Arts Associates, also testified. He stated that if there was redness “the length of a pinky finger” with burning, he would expect the IV to be discontinued. He further stated that burning does not always indicate the existence of an extravasation. Dr. Porubcin noted that he relies on Cordero's nursing judgment given his confidence in her experience and background, and that he had no reason to question nurse Cordero's judgment concerning the care given plaintiff.

Following the close of evidence, plaintiff moved for a directed verdict. Plaintiff argued the evidence unequivocally proved that nurse Cordero failed to follow Medical Arts Associates' policies and well-established nursing standards and, therefore, it was uncontroverted that defendants breached the applicable standard of care. That is to say, redness and pain or burning requires stoppage of the intravenous infusion of Adriamycin every time. Defendants disputed plaintiff's contentions. The trial court denied plaintiff's motion for directed verdict.

During closing arguments, plaintiff requested that the jury render verdicts against both nurse Cordero and Medical Arts Associates in an amount between $600,000 and $900,000, broken down as follows:

-----------
                |Disfigurement:                      |$ 40,000|to|$ 60,000|
                |------------|--------|--|--------|
                |Loss of a Normal Life-Past:         |$ 50,000|to|$100,000|
                |------------|--------|--|--------|
                |Loss of a Normal Life-Future:       |$100,000|to|$150,000|
                |------------|--------|--|--------|
                |Costs Associated with Help Cleaning:|$ 1,200 |to|$ 1,200 |
                |------------|--------|--|--------|
                |Lost Earnings-Past:                 |$ 14,500|to|$ 16,000|
                |------------|--------|--|--------|
                |Pain and Suffering:                 |$400,000|to|$600,000|
                |------------|--------|--|--------|
                |Total:                              |$605,700|to|$927,200|
                -----------
                

The jury ultimately returned a verdict in defendants' favor. Thereafter, plaintiff filed a motion for a judgment notwithstanding the verdict, claiming “she has proved each and every element of her claim, there are no intervening causes, and it is clear from the evidence that defendant Cordero failed to meet the standard of care.” The trial court denied this motion.

Plaintiff also filed a motion requesting a new trial, alleging that the trial court committed evidentiary errors by improperly admitting certain evidence. Specifically, plaintiff argued that the trial court erred by allowing references to plaintiff's failure to mitigate damages, by allowing evidence regarding plaintiff's alleged comments about continuing with the administration of Adriamycin, and by allowing defendant Martha Cordero to testify to opinions that were not previously disclosed. The trial court denied plaintiff's motion. This appeal followed.

ANALYSIS

Plaintiff argues on appeal that the trial court erred when: (1) denying her motion for a directed verdict; (2) denying her motion for a judgment notwithstanding the verdict (n.o.v.); and (3) denying her motion for a new trial. The plaintiff's first two claims are intertwined as they both allege that plaintiff offered uncontradicted testimony to prove all the elements of her cause of action.

I. Motion for Directed Verdict

Plaintiff alleges, with regard to the trial court's denial of her motion for a directed verdict, that the trial court erred in failing to recognize that plaintiff established a prima facie case of medical negligence that was never contradicted by the defendants and, in fact, was admitted by two employees of Medical Arts Associates. Continuing this line of reasoning, plaintiff argues that since she unequivocally proved her prima facie case of medical negligence, the jury was not free to disregard her expert's uncontradicted opinion that Martha Cordero breached the standard of care applicable to a reasonable oncology nurse when she failed to stop the IV infusion. Therefore, plaintiff concludes it was error to deny her motion for a directed verdict.

We review the trial court's denial of a motion for directed verdict, as well as its denial for a motion for judgment n.o.v., de novo. Buckholtz v. MacNeal Hospital, 337 Ill.App.3d 163, 271 Ill.Dec. 511, 785 N.E.2d 162 (2003); Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 262 Ill.Dec. 854, 767 N.E.2d 314 (2002). “[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14 (1967). In making this assessment, a reviewing court must not substitute its judgment for the jury's and may not reweigh the evidence or determine the credibility of witnesses. Donaldson, 199 Ill.2d at 89, 262 Ill.Dec. 854, 767 N.E.2d 314. A directed verdict should not be granted where “there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome.” Maple v. Gustafson, 151 Ill.2d 445, 454, 177 Ill.Dec. 438, 603 N.E.2d 508, 516 (1992).

A central issue in a medical malpractice action is the standard of care against which the medical professionals' alleged negligence is judged. Curi v. Murphy, 366 Ill.App.3d 1188, 304 Ill.Dec. 151, 852 N.E.2d 401 (2006). It is the plaintiff's burden to prove by a preponderance of the evidence that the defendant deviated from the standard of care. Borowski v....