Kreisman Law Offices Professional Corporation
In this Cook County, Ill., medical malpractice and wrongful death case, the hospital, Sisters of Saint Francis Health Services Inc. and Dr. Perry Marshall D.O. have appealed the jury’s verdict in favor of the family of the decedent, Georgia Tagalos.
On July 9, 2006, the plaintiff, Ted Fragogiannis accompanied by his mother, Georgia Tagalos, went to visit a friend in Bourbonnais, Ill. She was a long-time sufferer of asthma. During the ride home, Fragogiannis noticed that his mother began wheezing and gasping for air. She used two different inhalers, but her condition did not improve. She went into respiratory distress. Fragogiannis called 911 and arranged for an ambulance to meet them on the highway and take his mother to the hospital. According to the paramedics’ protocol, Tagalos was taken to St. Francis Hospital, which was the nearest hospital.
Tagalos arrived at the hospital at 1:45 p.m. and at that point she could no longer speak, but she was still responsive. Dr. Marshall was the emergency room’s attending physician. He was summoned by the nurse to address what had become a respiratory emergency. Dr. Marshall was at Tagalos’s bedside within minutes, but the parties disagreed about how many minutes elapsed. Dr. Marshall instructed a fourth year emergency room resident physician to see Ms. Tagalos and indicated that she might need to be intubated. The fourth year emergency resident, Dr. Julie Mills, assessed the patient and determined that an emergency intubation was required. At 1:56 p.m., 11 minutes after arriving at the hospital and while Dr. Mills was preparing for intubation, Tagalos became unresponsive.
When Dr. Mills attempted to intubate Tagalos, the patient vomited. Dr. Marshall called for an anesthesiologist, an expert in establishing airways to assist. The vomit was suctioned away and five minutes after the first attempt, a second intubation attempt was made. At some point around this time, Dr. Marshall also summoned surgery in case they needed to surgically create an airway. The vomiting continued and the second intubation attempt was unsuccessful. All of the attempts to intubate failed. There were 3 or 4 more intubation attempts. Because of the lack of oxygen, Tagalos suffered cerebral hypoxia, a complete deprivation of oxygen to the brain. Effectively, Tagalos was brain dead. She was taken off life support and died three days later.
Tagalos’s son, the special administrator of her estate, filed this case for medical malpractice and wrongful death. The plaintiff’s position was that Dr. Marshall and the hospital were negligent because they took approximately 25 minutes before establishing an airway despite the fact that the patient arrived with a respiratory emergency. The defendants argued that they complied with the standard of care.
At the jury trial, the plaintiff’s expert, Dr. Richard Sobel, testified that the defendants deviated from the standard of care in several ways. Dr. Sobel said that the doctors waited too long to initially attempt intubation and when they did attempt to intubate Ms. Tagalos, they chose not to administer sedation or properly oxygenate her prior to the attempts. Dr. Sobel claimed that the delay to get a doctor involved and administer prompt care was a cause, if not the cause, of Tagalos’s death. Naturally, the defendants’ experts, two doctors testified that the doctors and the hospital all complied with the standard of care. These expert witnesses maintained that a complete inability to intubate is rare and that Dr. Marshall acted properly by repeatedly trying to intubate. The plaintiff’s theories at trial were that the family could go after Dr. Marshall individually for his individual negligent acts and that they could recover against the hospital because the nurse was negligent or because the doctor was an apparent agent of the hospital. After a 7-day trial, the jury returned a general verdict in favor of plaintiff and against the hospital and Dr. Marshall in the amount of $4.7 million.
On appeal, the hospital argued as it did in trial that it cannot be liable for the nurse’s conduct because there was undisputed evidence that she summoned Dr. Marshall right away and so she did not breach any duty. The hospital also argued that it cannot be liable because there was no evidence that anything the nurse did or did not do proximately caused the patient’s death. The hospital argued as it did in the trial court that it cannot be liable for Dr. Marshall’s conduct because he was an independent contractor and not its apparent agent. Dr. Marshall argued in a separate appeal that he is entitled to a new trial because of improper questioning and argument by plaintiff’s counsel, including violations of granted motions in limine.
The hospital argued that it was entitled to a directed verdict on liability because the conduct of the nurse was not a deviation from the standard of care. The plaintiff disagreed and pointed to the testimony of its expert who concluded that Nurse Mullen failed to immediately call a doctor to the patient despite the existence of the respiratory emergency. In addition, it was argued by the hospital that Mullen called for help right away and that testimony was supported by Dr. Marshall’s testimony that he was notified immediately when Tagalos arrived. The hospital charts prepared by Nurse Mullen state: “MD to bedside” with a notation of 1:52 pm, which would have been seven minutes after Tagalos arrived at the hospital. Plaintiff’s seized upon this note in an attempt to substantiate its position that Mullen was negligent. But even if the doctor did not arrive at bedside for seven minutes that does not mean that Mullen failed to properly and urgently alert the doctor of the emergency.
Although plaintiff’s expert testified that there may be some concern about the proper way to call out emergency codes and how that unfolded in this case, his ultimate conclusion was that the actual manner in which the alert was made was not dispositive as long as the emergency nature of the situation was conveyed. All of the evidence showed that Mullen did alert the doctor that immediate care was needed for Tagalos. The appeals panel concluded that the hospital could not be liable on the basis of any act or omission by the nurse based on the evidence presented.
The other theory that the plaintiff brought as to the hospital’s responsibility was that of an apparent agent. For a hospital to be liable under the doctrine of apparent liability, a plaintiff must show: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511, 525 (1993). In a medical malpractice claim against a physician and the hospital, where the emergency room physician was an apparent agent of the hospital, such that the hospital could be variously liable for physician’s negligence, is a question for the jury.
In this case, Tagalos was seeking emergency care from the hospital itself. She did not choose to be treated specifically by Dr. Marshall; the doctor was simply the attending physician in the emergency room that day. Neither party chose the other. Instead, it was the hospital that chose Dr. Marshall to treat Tagalos. The plaintiff did not even live in the area and was simply taken to defendant-hospital as a result of its proximity to the location where her respiratory emergency occurred. The hospital holds itself out as a provider of general emergency care. In this case, it was up to the jury to decide that question of agency or apparent agency and it did so in favor of the plaintiff. The appeals panel stated that the plaintiff proved that the hospital held itself out as a provider of complete emergency room care and that Tagalos neither knew nor could she have known that Dr. Marshall was not an employee of the hospital.
As to Dr. Marshall, there was nothing in the appeal that challenged the sufficiency of the evidence that was presented against him. Instead, both the hospital and Dr. Marshall offered arguments to support their position that the finding of liability against Dr. Marshall should be vacated for things that occurred during the trial. One of the things that was argued was that the court was wrong in allowing plaintiff’s counsel to use medical literature for what they characterized as substantive evidence. In Illinois, medical literature cannot be used as substantive evidence, but can be used for purposes of impeachment. Downey v. Dunnington, 384 Ill.App.3d 350, 382 (2008).
A learned text can be used for impeachment on cross-examination in any of the following three circumstances: (1) the trial court takes judicial notice of the author’s competence; (2) the witness concedes the author’s competence; (3) the cross-examiner proves the author’s competence by a witness with expertise in the subject matter. Stapleton ex rel. Clark v. Moore, 403 Ill.App.3d 147, 160 (2010). In this case, the plaintiff’s counsel used the treatise Manual of Emergency Airway Management. Defendants argued that the use of the book was improper because plaintiffs’ lawyer read from the book and asked the witnesses questions about its contents. Although the appeals panel concluded that his style of reading to the witness was not ideal, it did not amount to reversible error.
Another argument presented by defendants was that the plaintiff suggested that the defendants’ expert should have presented a treatise or some other medical literature to support the opinions that he offered to the jury. Again although that statement by counsel was not ideal, it was not reversible by itself. In fact, the court said that the book was brought up in rebuttal in response to defendants’ criticism of the book and plaintiff’s failure to bring in the author to testify in the case. The court said it would not reverse the judgment due to improper comments by counsel unless a party has been substantially prejudiced by such comments. That was not the case here. In conclusion, although there were certain imperfections in the trial, none of them rose to the level that warranted a reversal. Accordingly, the jury’s verdict against these defendants, the hospital and Dr. Marshall was affirmed.
Ted Fragogiannis for the Estate of Georgia Tagalos, deceased v. Sisters of Saint Francis Health Services, Inc. and Dr. Perry Marshall, D.O., 2015 IL App (1st) 142706 (Dec. 31, 2015).
Kreisman Law Offices has been handling medical malpractice lawsuits, birth trauma injury cases, misdiagnosis of cancer cases, hospital negligence cases and emergency medical negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Tinley Park, Flossmoor, Homewood, Evanston, Elmwood Park, Elmhurst, Calumet City, Blue Island, Highwood, Schaumburg, Palatine, Orland Park, Chicago (Austin, Wicker Park, Logan Square, Bronzeville), Naperville and Deerfield, Ill.
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