Steele v. Provena Hosps.

• Citation: 374 Ill.Dec. 1016,2013 IL App (3d) 110374,996 N.E.2d 711
• Decision Date: 24 September 2013
• Docket Number: 3–11–0375 cons.,Docket Nos. 3–11–0374
• Parties: Rita STEELE, Special Administrator of the Estate of Michelle Koenig, Plaintiff–Appellee, v. PROVENA HOSPITALS, d/b/a St. Mary's Hospital; Timothy Moran, M.D.; and Echo Management and Consulting Group, LLC, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2013 IL App (3d) 110374
996 N.E.2d 711
374 Ill.Dec. 1016

Rita STEELE, Special Administrator of the Estate of Michelle Koenig, Plaintiff–Appellee,
v.
PROVENA HOSPITALS, d/b/a St. Mary's Hospital; Timothy Moran, M.D.; and Echo Management and Consulting Group, LLC, Defendants–Appellants.

Docket Nos. 3–11–0374, 3–11–0375 cons.

Appellate Court of Illinois,
Third District.

Sept. 24, 2013.

[996 N.E.2d 714]

Nancy G. Lischer (argued), of Hinshaw & Culbertson, of Chicago, and Dan Softcheck, of Hinshaw & Culbertson, of Joliet, for appellant Provena Hospitals.

Trisha K. Tesmer (argued), of Cassiday Schade LLP, of Chicago, for other appellants.

Michael W. Rathsack (argued) and Michael Cogan, of Cogan & Power, P.C., both of Chicago, for appellee.

OPINION
Justice McDADE delivered the judgment of the court, with opinion.

[374 Ill.Dec. 1019]¶ 1 Rita Steele, plaintiff and special administrator for the estate of Michelle Koenig, filed suit against emergency room doctor Timothy Moran and his employer, Echo Management and Consulting, for the wrongful death of her daughter, Michelle, due to alleged medical negligence. She also sued Provena Hospitals, d/b/a St. Mary's Hospital, alleging that Moran acted as its agent and it was, therefore, vicariously liable for her daughter's death. The jury rendered a verdict awarding Steele, Todd Koenig, Michelle's father, and Jessica Watts, Michelle's half-sister, $1.5 million. Provena and Moran have both appealed. We reverse and remand on Moran's appeal and enter judgment notwithstanding the verdict in favor of Provena.

¶ 2 FACTS ¶ 3 I. Michelle's Recent Medical History

¶ 4 On January 13, 2006, Michelle went to the office of her primary care physician, Dr. Gregory Trapp, complaining of a sore throat and cough. His nurse-practitioner ordered a throat culture, which was positive for streptococcus infection. Michelle was prescribed an antibiotic, amoxicillin, and did not subsequently return to Dr. Trapp's office.

¶ 5 On February 9, 2006, Michelle began to feel ill at work. Her symptoms included difficulty speaking and partial paralysis [374 Ill.Dec. 1020]

[996 N.E.2d 715]

on her right side. She was picked up from work and taken home by her mother, but later that day was transported by ambulance to Riverside Hospital in Kankakee, where she was seen and evaluated by Dr. Trapp, her personal internist. Dr. Trapp performed a physical examination and initially thought she had suffered a stroke, blood clot, or cranial bleed. He ordered tests, which he and a consulting neurologist, Dr. Bruce Dodt, thought supported a diagnosis of multiple sclerosis. He arranged for Michelle's transfer from Riverside to the Chicago Institute of Neurology and Neurosurgery (CINN), where she underwent a number of tests, including a spinal tap requiring a lumbar puncture. The doctors at CINN diagnosed either presumptive multiple sclerosis (which they described to Dr. Trapp as rapidly progressing) or lupus. They began a course of steroids while she was hospitalized, and discharged her on February 13 or 14 with instructions to continue on steroids, starting with a daily dose of 60 milligrams of prednisone and tapering to 40 milligrams per day by February 22. She was to return to CINN for further treatment.

¶ 6 On Sunday, February 19, Michelle began experiencing severe back pain and a cough. At the insistence of her mother, Rita, Michelle was taken by ambulance to St. Mary's Hospital for emergency treatment. Upon arrival at the hospital, Michelle was given a consent-to-treatment form to sign. Although neither she nor Rita read the form, Rita printed her daughter's name and directed Michelle to sign it.

¶ 7 Michelle was treated by Dr. Timothy Moran in the emergency department at St. Mary's. He was provided with Michelle's medical history, including her current use of steroids and the recent diagnosis of presumptive multiple sclerosis/lupus and the fact that she had had chicken pox. Michelle's chief complaint in emergency on February 19 was back pain which limited her ability to get around. She told Dr. Moran that she had recently undergone a lumbar puncture.

¶ 8 Dr. Moran performed a physical examination and he treated her back pain with both a pain medication and a muscle relaxant, which relieved her discomfort enough for Michelle to walk around and to use the bathroom on her own. Moran also ordered several diagnostic tests, including blood work, chemistry and metabolic testing, urinalysis and lumbar spine X-rays. He consulted with Dr. Leonard Cerullo, one of Michelle's physicians at CINN, and learned from him that the results of her tests at CINN were still incomplete. He also spoke with Dr. Khan, an internist who was on call for Dr. Trapp but who declined to come to the emergency room, instead advising that Michelle should see Dr. Trapp in the office the following day.

¶ 9 During his examination, Dr. Moran observed a rash on Michelle's head, chin, chest and upper back, which he described as “scattered red papular vesicular lesions.” A papular lesion is a raised lesion or red bump, and a vesicle is a small blister within the skin. Dr. Moran later testified that he did not think this rash looked like chicken pox because Michelle did not have the dry and crusty lesions he believed she would have exhibited if the virus had developed within the past 24 hours, and they were not itching.

¶ 10 Results of the testing showed she had no fever, her urinalysis was negative for nitrites, leukocyte esterase, significant protein and blood. She did have a white blood cell count of 19,000 and her liver enzymes were somewhat elevated. Although Dr. Moran noted the elevated enzymes, he formed “no opinion” at that time as to the reason for the elevation, nor did he know that chicken pox could be a cause.

[996 N.E.2d 716]

[374 Ill.Dec. 1021]¶ 11 Dr. Moran released Michelle that same night with instructions to continue the pain medication and muscle relaxant, to follow up with Dr. Trapp the next day (Monday), and with Dr. Cerullo at CINN as previously scheduled.

¶ 12 Michelle did not see Dr. Trapp during the day on Monday, but at 6:40 p.m. on that evening, February 20, she again presented for emergency care, this time at Riverside where she had been evaluated on February 9. She was again complaining of back pain and abdominal discomfort/nausea.

¶ 13 (The following portion of Michelle's medical history, set forth in paragraphs 14 through 18, was deemed irrelevant to the standard of care and was excluded from the jury by order of the trial court. The information is summarized from the deposition testimony of Dr. Manczko, Dr. Trapp, and Dr. Ramani. We include it here because it forms the basis of a significant issue on appeal.)

¶ 14 At Riverside, Michelle was first seen by emergency department physician Dr. Thaddeus Manczko. Because he had no independent recollection of these events, his deposition testimony was drawn from his notes and the hospital's comprehensive chart. Manczko said Michelle presented with radiating pain in her lower back and abdominal discomfort. He observed residual right-side weakness, some symptoms of mild dehydration and of infection, bruising around the lumbar puncture site, and pale skin, and he specifically noted “no skin lesions to suggest shingles.” He called in Dr. Trapp because, as Michelle's primary care physician, he would be able to admit her to the hospital if that became necessary.

¶ 15 Tests were ordered on February 20–some by Manczko and some by Trapp-which showed a white blood cell count that had more than doubled from the 19,000 finding at St. Mary's to 39,000 and liver enzymes that had dramatically increased.¹ Manczko thought these results were consistent with infection but could also result from stress, medication, hepatitis, or inflammation (epidural abscess). He stated he could not base a final or ultimate diagnosis on that information alone, nor was he, as an emergency room physician, in a position to rule out multiple sclerosis or viral infection as the cause of her symptoms. In light of the incomplete information available to him, he made a primary diagnosis of abdominal pain, a secondary diagnosis of low back pain, and noted a need to rule out an epidural abscess resulting from lumbar puncture.

¶ 16 After being called in, Dr. Trapp assumed the triaging function and primary responsibility for Michelle's treatment. He secured consults with three specialists: Dr. Ed Jerkovic (gastrointestinal), Dr. Bruce Dodt (neurology), and Dr. Ram Ramani (infectious diseases). Dr. Ramani did not examine Michelle until Tuesday (February 21), and by then her white blood cell count had risen to 50,000 and her liver enzymes had escalated still further. ² When asked during his deposition whether he was comfortable with his diagnosis of her at Riverside, Dr. Trapp responded:

“We were unsure what caused it, but the concern was that the liver was failing in front of our eyes. Her numbers multiplied by thousand-fold in 12–15 hours. And she was showing signs of not just [374 Ill.Dec. 1022]

[996 N.E.2d 717]

that, but the synthesis or the function of the liver was also failing.”

¶ 17 All four doctors were extremely concerned by the combination of Michelle's escalating liver enzymes and white blood cell count, her “strange” multiple sclerosis diagnosis, and the declining function of her liver. Dr. Jerkovic insisted that she be airlifted to Northwestern Memorial Hospital because he believed she needed an immediate liver transplant and she had a better chance of moving to the top of the transplant list there than at Riverside.

¶ 18 Dr. Ramani, the infectious disease specialist, included in the “impressions” in his report the need for a Tzanck smear and a “herpes PCR” to rule out herpes. He also considered acute hepatitis, noting that “liver function rates were normal 2 days ago [February 19]” and suggesting such hepatitis could be “possibly related to medications and steroids.” The third “recommendation” in Dr. Ramani's report was “IV...