Spiegelman v. Victory Memorial Hosp., 1-07-3195.

• Citation: 392 Ill. App. 3d 826,911 N.E.2d 1022
• Decision Date: 05 June 2009
• Docket Number: No. 1-07-3195.,1-07-3195.
• Parties: Judith SPIEGELMAN, Plaintiff-Appellee, v. VICTORY MEMORIAL HOSPITAL, Defendant-Appellant, (Murray Keene, Emergency Specialists of Illinois, P.C., Pedro Paly-Ay, and Louise Riff, Defendants).
• Court: United States Appellate Court of Illinois

911 N.E.2d 1022

392 Ill. App. 3d 826

Judith SPIEGELMAN, Plaintiff-Appellee, v. VICTORY MEMORIAL HOSPITAL, Defendant-Appellant (Murray Keene, Emergency Specialists of Illinois, P.C., Pedro Paly-Ay, and Louise Riff, Defendants).

No. 1-07-3195.

Appellate Court of Illinois, First District, Fifth Division.

June 5, 2009.

Rehearing Denied July 13, 2009.

Ruth V. Enright, Baker & Enright, Hugh C. Griffin, Stevie A. Starnes, Hall Prangle & Schoonveld, LLC, Chicago, IL, for Defendant-Appellant.

Thomas O. Plouff, James P. Costello, Costello, McMahon, Burke & Murphy, Ltd. (Michael W. Rathsack, of Counsel), Chicago, IL, for Plaintiff-Appellee/Cross-Appellant.

Justice TOOMIN delivered the opinion of the court:

This appeal arises from a malpractice action by plaintiff, Judith Spiegelman, to recover for injuries she sustained as a result of misdiagnosis of bacterial meningitis. Defendant Victory Memorial Hospital was found liable based on defendant Dr. Murray Keene's apparent agency. Victory Memorial appeals, seeking reversal of the trial court's denial of its motion for judgment notwithstanding the verdict, arguing that plaintiff failed to prove: (1) that Victory Memorial held out Dr. Keene as its agent; and (2) that plaintiff justifiably relied on any purported holding out by Victory Memorial. Alternatively, Victory Memorial argues the trial court erred in denying its motion for a new trial for the following reasons: (1) the manifest weight of the evidence failed to establish any holding out or reasonable reliance by plaintiff; (2) the court erred in admitting evidence of Victory Memorial advertisements; and (3) the court erred in denying defendants' motion to transfer the cause based on the doctrine of forum non conveniens. For the following reasons, we affirm.

BACKGROUND

The afternoon of November 29, 1998, plaintiff Judith Spiegelman went to the emergency room of Victory Memorial Hospital in Waukegan, Illinois, because she was feeling ill. Plaintiff was 56 years old at the time and was accompanied by her adult son, Joshua Spiegelman. At about 3 p.m. and again at 3:45 p.m., plaintiff spoke with the emergency room triage nurses and complained of a headache, pain in her left ear, congestion, dizziness when she turned her head, occasional double vision, and nausea with no vomiting. Plaintiff informed the nurses that she was taking the antibiotic erythromycin and the anti-inflammatory drug Aleve. Plaintiff also gave her past medical history, which included smoking 2 1/2 packs of cigarettes per day, hypothroidism, a history of sinusitis, and an allergy to penicillin. Plaintiff was alert and oriented and did not appear to be in acute distress. Although plaintiff's vital signs were all normal, she had a temperature of 100.1 degrees.

While plaintiff was waiting to see a doctor, she signed a one-page consent form titled "CONSENT FOR EMERGENCY TREATMENT." Paragraph 1 provided for consent to voluntary emergency treatment. Paragraph 2 concerned the administration of diagnostic and therapeutic treatments to be determined by the "Emergency Physician."

Paragraph 3 provided:

"I am aware that during my visit to the Emergency Department of Victory Memorial, hospital employees will attend to my medical needs as may be necessary. I understand that these individuals may carry out a part or all of my treatment as consistent with their respective professional education, experience, and license." Paragraph 4 provided:

"I understand that the Emergency Department physician and my attending physician are independent contractors and not agents or employees of VICTORY MEMORIAL HOSPITAL. I further understand that my attending physician may request treatment or diagnostic services (including radiology, anesthesiology, pathology) by other physicians. I am also aware that any other physicians who may be called to attend my care are independent contractors and not employees or agents of VICTORY MEMORIAL HOSPITAL."

Paragraph 5 disclaimed any guarantee regarding the result of any diagnosis, test, or treatment at the emergency room. Paragraph 6 concerned the fact that signatures on further specific consent forms relating to specific medical or surgical diagnostic and treatment procedures may be requested, and also contained a release of liability for the exercise of judgment as to priority of treatment in the emergency room. Paragraph 7 contained a consent for disposal of tissue or body parts. Paragraph 8 specified that there "may be additional charges for physician services including but not limited to radiologists, anesthesiologists, pathologists, and emergency room physicians."

Paragraph 9 of the consent form further provided:

"I have read the above and I certify that I fully understand its contents. I also, by signing this form, indicate my consent to receive the diagnostic and therapeutic care and treatment at VICTORY MEMORIAL HOSPITAL as provided herein and as deemed necessary by my physician or his designee. I also know that I may refuse any part of all diagnostic or therapeutic procedures."

Immediately beneath the numbered paragraphs was an unnumbered separate section titled: "RELEASE FOR RESPONSIBILITY FOR VALUABLES." The signature line was beneath this section, and plaintiff's signature there was witnessed.

At about 4:30 p.m., plaintiff was first examined by defendant Dr. Murray Keene. Dr. Keene was not an employee of Victory Memorial but rather was employed by Emergency Specialists of Illinois, P.C. Emergency Specialists paid Keene's salary and set his hours. Keene's physician's coat did not bear the Victory Memorial logo. According to Keene, plaintiff did not have chills or a fever, and did not have a tender or stiff neck, which would have been a sign of bacterial meningitis. Plaintiff had a left frontal headache, but there were no signs of seizure activity and no abnormal eye movements. Plaintiff had no chest pain and her lungs were clear. Her throat was also normal, and she had normal bowel sounds. Plaintiff demonstrated normal strength, with no extremity weakness or numbness. However, Keene noted that plaintiff's left side of her face was sagging, there was pus draining out of her left ear, and she had difficulty closing her left eyelid. Keene diagnosed plaintiff with Bell's Palsy, sinusitis, otitis media (ear drum infection), and ordered X-rays of plaintiff's sinuses.

Between 6:15 p.m. and 6:30 p.m., while waiting for her X-rays, plaintiff became pale and dizzy and vomited. The X-rays showed that she had multiple sinus infections. At 7:50 p.m., Keene decided to discharge plaintiff with instructions to follow up with her personal physician the next day. However, before she left the hospital her condition changed and Keene returned to reassess her. Plaintiff was unable to walk straight and was falling and leaning to the left. Keene suspected that she might be having a stroke and immediately ordered blood work and a CT scan of plaintiff's head. Keene also spoke with plaintiff's long-time personal physician, Dr. Pedro Palu-Ay, about plaintiff's symptoms at approximately 8:30 p.m. and decided to admit plaintiff.

The CT scan showed that plaintiff had no brain abnormalities and had not suffered a hemorrhagic or bleeding stroke, but that she had mastoiditis, an infection of the mastoid bone in her head. Keene did not believe that the CT scan ruled out an infarction-type stroke, where a blockage causes lack of blood flow to the tissue. The hospital admission order written by Keene after his discussion with Dr. Palu-Ay stated that plaintiff was to receive antibiotics and neurological checks every two hours. Keene did not suspect that plaintiff might have bacterial meningitis. At 10:15 p.m. she was moved to the hospital's telemetry floor, an intermediate level of care.

At the 4 a.m. neurological check on November 30, plaintiff had a temperature of 102.4 degrees and was mumbling and talking incoherently. The hospital nurses notified Dr. Palu-Ay, and he arrived at 5 a.m. to examine plaintiff. Palu-Ay ordered a consultation with a neurologist. At around lunchtime, a neurologist, Dr. Reuben Weisz, saw plaintiff and noted that she showed mild meningeal signs, such as a stiff neck, bilateral Babinski, a pathological reflex indicating damage to the brain or spinal cord, and mild confusion. However, Weisz thought plaintiff more likely had a brain stem abscess, as opposed to meningitis. Weisz ordered an MRI of plaintiff's brain and also telephoned an infectious disease specialist, Dr. Louise Riff, to consult regarding what antibiotics plaintiff should receive. Riff ordered the discontinuation of Biaxin and plaintiff started receiving clindamycin to treat her sinusitis, mastoiditis and ear infections. After receiving the MRI results indicating a possible small abscess formation and a stroke in the part of the brain responsible for coordination, Weisz performed a spinal tap on plaintiff at around 8:30 p.m. to rule out whether plaintiff had bacterial meningitis.

Riff examined plaintiff the next morning. Plaintiff was not responsive to anything other than pain stimuli. While Riff was still not certain at this time whether plaintiff had bacterial meningitis, she ordered that plaintiff receive Rocephin, an antibiotic that can be used to treat that infection. Later that day, the spinal tap results showed that plaintiff indeed had bacterial meningitis.

As a result of the bacterial meningitis infection, plaintiff sustained permanent brain injury which has left her wheelchair-bound and in need of assistance for all her daily functions. Plaintiff also has memory problems, slurred speech, difficulty writing, and a left facial droop.

On November 27, 2000, plaintiff filed her original negligence action, which she voluntarily dismissed on January 19, 2005. She refiled her action on May 11, 2005, and thereafter filed a first amended complaint on June 10, 2005 against defendants Victory Memorial, Keene, Palu-Ay, Riff, and Emergency Specialists of...