Sarka By and Through Sarka v. Rush Presbyterian-St. Luke's Medical Center

• Decision Date: 30 November 1990
• Docket Number: PRESBYTERIAN-ST,1-89-2173,Nos. 1-89-2145,s. 1-89-2145
• Citation: 207 Ill.App.3d 587,566 N.E.2d 301
• Parties: , 152 Ill.Dec. 614 Saul SARKA, a minor, by and through Mary SARKA, his mother and next friend, Mary Sarka and Raymond Sarka, Plaintiffs-Appellants, v. RUSHLUKE'S MEDICAL CENTER, a corporation and Glenn Geremiah, M.D., Defendants-Appellees. Saul SARKA, a minor, by and through Mary SARKA, his mother and next friend, Mary Sarka and Raymond Sarka, Plaintiffs-Appellants, v. Melvin GERBIE, M.D., Albert Gerbie, M.D., Michael R. Halpren, M.D., Drs. Reis, Gerbie, Gerbie, S.C., a corporation, Northwestern, Memorial Hospital, a corporation, Northwestern University, a corporation, Lawrence D. Podolsky, M.D., Alison Murray, M.B., B.S., Catherine Sundberg, R.N. and Joyce Nelson, R.N., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 301

566 N.E.2d 301

207 Ill.App.3d 587, 152 Ill.Dec. 614

Saul SARKA, a minor, by and through Mary SARKA, his mother and next friend, Mary Sarka and Raymond Sarka, Plaintiffs-Appellants, v. RUSH PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, a corporation and Glenn Geremiah, M.D., Defendants-Appellees.

Saul SARKA, a minor, by and through Mary SARKA, his mother and next friend, Mary Sarka and Raymond Sarka, Plaintiffs-Appellants, v. Melvin GERBIE, M.D., Albert Gerbie, M.D., Michael R.

Halpren, M.D., Drs. Reis, Gerbie, Gerbie, S.C., a

corporation, Northwestern, Memorial Hospital, a corporation,

Northwestern University, a corporation, Lawrence D.

Podolsky, M.D., Alison Murray, M.B., B.S., Catherine

Sundberg, R.N. and Joyce Nelson, R.N., Defendants-Appellees.

Nos. 1-89-2145, 1-89-2173.

Appellate Court of Illinois,

First District, Second Division.

Nov. 30, 1990.

Rehearing Denied Feb. 5, 1991.

Arnstein & Lehr, Chicago (Arthur L. Klein, Fredrick J. Entin, Miles J. Zaremski, Richard C. Gering, Steven H. Jesser, Associate Gen. Counsel, of counsel), for defendants-appellees.

David A. Novoselsky & Associates and O'Callaghan & Associates, P.C., Chicago ( David A. Novoselsky and Joseph Michael O'Callaghan, of counsel), for plaintiffs-appellants.

Presiding Justice DiVITO delivered the opinion of the court:

In this medical malpractice action, plaintiff claims that due to the negligence of defendant hospital and pediatricians he suffers from injuries allegedly sustained during his birth. Contesting the claim, defendants seek to examine plaintiff. Pursuant to Supreme Court Rule 215 (87 Ill.2d R. 215), the trial court entered an order compelling plaintiff to submit to a physical examination including magnetic resonance imaging (MRI) or computed axial tomography (CT) scan under sedation by chloral hydrate. Plaintiff refused to comply with the order on the ground that the MRI or CT scan posed a risk of harm; the trial judge held plaintiff's mother, Mary Sarka, and his attorneys in contempt. From these orders, contemnors appeal raising the issue of whether the trial court abused its discretion in ordering plaintiff to submit to a CT scan under sedation by chloral hydrate.

On February 2, 1977, Saul Sarka was born at Northwestern Memorial Hospital. He was delivered by Melvin Gerbie, M.D., and during the delivery there was no evidence of fetal distress, nor were any problems noted during Saul's mother's pregnancy. However, Saul was born severely depressed with only a feeble heart beat. In addition, immediately after birth the attendant medical personnel noted that Saul had a peculiar facial appearance, and a chromosome analysis was recommended. During the chromosome analysis no abnormalities were found and the cause of Saul's problems was diagnosed as birth asphyxia.

After Saul was discharged from the hospital, Peter Huttenlocher, M.D., examined him. Dr. Huttenlocher noted Saul's unusual appearance and neurological dysfunction, and stated that he believed those disabilities may have resulted from congenital conditions preceding the moment of birth rather than complications at birth.

On October 30, 1980, a lawsuit was filed on behalf of Saul by his mother and next friend, Mary Sarka, against Northwestern Memorial Hospital and Dr. Melvin Gerbie. ¹ The complaint averred that Saul's injuries resulted from the negligence of defendants during Saul's birth and that as a result of such negligence Saul suffers from severe and permanent brain damage.

On June 30, 1983, pursuant to Supreme Court Rule 215, defendant Northwestern Memorial Hospital motioned to compel Saul to submit to a blood test. That motion was denied without prejudice by Judge O'Brien on July 20, 1983.

Defendants again made a discovery motion on February 6, 1984, to compel Saul to submit to the taking of photographs. On March 12, 1984, Judge O'Brien granted the motion. The order granting defendants' motion stated in part that "medical personnel or therapists shall be present to insure the safety and security of the plaintiff." On April 11, 1984, plaintiff filed a motion to vacate the order claiming that the positioning of Saul for the photographs was likely to cause him pain, terror, and other adverse psychological effects. At the hearing to determine whether the order should be vacated, Judge O'Brien stated that the photographs would be taken only in accordance with the directions of plaintiff's therapist: "if the therapist says I cannot open up [Saul's] hands any further without injuring him, a hand is not going to be opened up any further." On June 13, 1984, Judge O'Brien denied plaintiff's motion to vacate.

On April 22, 1985, defendants motioned for an independent Rule 215 examination. The motion requested that Saul be submitted for a CT scan of the head and that a small amount of blood be drawn, not to exceed 10 milliliters. The motion was heard by Judge Bosco, who entered an order on June 3, 1985, requiring Saul to submit to a CT scan and a physical examination, but denying the request for the blood sample. Counsel for one of the defendants asked whether his own expert could conduct a separate examination of plaintiff on the same date; however, Judge Bosco denied that request stating "[t]here's going to be one exam [and] [i]t's going to be by someone that all of you people agree on." Accordingly, Judge Bosco's order provided in part that:

"At such examination, physicians selected by defendants other than Northwestern may be present, however, only one physician is authorized to examine the plaintiff and no further examinations are authorized."

The physical examination authorized by Judge Bosco's order was performed on July 18, 1985 by Michael Painter, M.D., a pediatric neurologist. Dr. Painter stated that, based upon his examination, he considered Saul to be congenitally malformed and that Saul's condition might be genetic. On September 9, 1985, the CT scan was performed by Thomas Naidich, M.D., a pediatric neuroradiologist. In his radiology consultation report, Dr. Naidich noted that the scan was performed without sedation, and as a result, the quality of the scan was diminished.

On January 26, 1986, defendants requested another physical examination, this time to be performed by a medical geneticist. In support of their motion, defendants submitted the affidavit of John Opitz, M.D., a medical geneticist. Dr. Opitz stated that he had to physically examine Saul in order to ascertain whether Saul suffers from a genetic defect. On April 7, 1986, Judge Nicholson denied defendants' motion without prejudice for a physical examination. Judge Nicholson stated that the motion sought to vacate, reconsider or modify Judge Bosco's order of June 3, 1985. However, Judge Nicholson also stated that, although she wouldn't "review" Judge Bosco's decision, defendants could "take it over to Judge Bosco." Defendants then refiled the motion before Judge Bosco.

On May 6, 1986, Judge Bosco ordered the requested examination, but stayed enforcement of the order and set the matter for further hearing on the issue of whether such an examination would be detrimental to the physical or mental well-being of Saul. Plaintiff moved to vacate the May 6, 1986 order, arguing that further examination was precluded by Judge Bosco's order of June 3, 1985. On June 25, 1986, Judge Bosco denied plaintiff's motion to vacate and ordered plaintiff to submit to a physical examination by Dr. Opitz.

On August 25, 1988, plaintiff deposed Dr. Naidich, who performed the 1985 CT scan on Saul. Dr. Naidich testified that he reviewed the 1985 CT scan films of Saul just prior to the taking of the deposition and saw "certain features of this study that I did not see until this morning that I believe require further investigation." He further testified that there was evidence "highly suggestive" of a condition known as schizencephaly, a congenital malformation of the brain generally attributed to events during the second month of gestation "that [was] not mentioned in the report because in 1985, I did not know enough about it to appreciate it." Dr. Naidich explained that he learned to recognize schizencephaly as a result of his participation in a medical study of the condition. Dr. Naidich stated that subsequent to the study, the methods of diagnosis of schizencephaly had improved: "We learned new things about schizencephaly that are simply not in the literature as yet."

Dr. Naidich testified that the CT scan images were of poor quality because Saul was not sedated during the procedure. Saul was moving during the procedure, the result of which was a "motion artifact" which obscured the area where Dr. Naidich saw evidence "strongly suggestive of possible schizencephaly." Dr. Naidich testified that if the CT scan was motion-free, he could make a diagnosis, "yes or no, as to the presence of closed lip schizencephaly." Dr. Naidich also testified that it would be necessary to sedate Saul in order to guarantee a motion-free scan.

On February 3, 1989, based upon the deposition of Dr. Naidich, defendants filed a new motion for a CT scan to be performed under sedation. The motion was first argued on April 11, 1989, before Judge Durham. Judge Durham noted plaintiff's argument that the requested examination was inconsistent with Judge Bosco's order of June 3, 1985, and acknowledged that he was limited in overruling a prior discretionary order by another judge. However, Judge Durham inquired whether Judge Bosco's order was based upon the same information that was before Judge Durham. Defense counsel advised Judge Durham that the information presented to Judge Bosco did not include the recent developments in the diagnosis of schizencephaly of which Dr. Naidich spoke.

After concluding that he was presented with new information not available to Judge Bosco in 1985, Judge Durham next considered the issue of safety. Judge Durham stated: "If [defendants] can show me by affidavit or by competent expert witnesses that the...