No. 5-95-0868
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
)
SHERI LYNN BANKS, Individually and as) Appeal from the
Administrator of the Estate of ) Circuit Court of
Jeffrey Lynn Banks, for the benefit ) Effingham County.
of Sheri Lynn Banks and Brooke Shelby)
Banks, )
Plaintiff-Appellant, )
v. ) No. 93-L-56
RAMON CLIMACO, M.D., ) Honorable
) Richard H. Brummer,
Defendant-Appellee. ) Judge, presiding.
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PRESIDING JUSTICE HOPKINS delivered the opinion of the court:
Plaintiff, Sheri Lynn Banks, appeals from the jury's verdict
in favor of defendant, Ramon Climaco, M.D., in this medical
malpractice case. Sheri, who is the widow of Jeffrey Lynn Banks,
appeals on her own behalf and in behalf of Brooke Shelby Banks,
Jeffrey's daughter. Jeffrey died on October 28, 1991, at the
emergency room (ER) of St. Anthony's Memorial Hospital (St.
Anthony's) in Effingham, Illinois. Dr. Climaco was the attending
physician on call when Jeffrey arrived at the ER at approximately
9:35 p.m. on October 27, 1991.
Plaintiff filed her multiple-count complaint alleging medical
malpractice by defendants Climaco and Ashokkumar Shah, the
anesthesiologist on duty the night of Jeffrey's death. St.
Anthony's and nurse anesthetist James Kinney were named as
respondents in discovery, until they settled with plaintiff some
months before the trial. Dr. Shah settled with plaintiff at the
close of all of the evidence. Hence, during its deliberations the
jury considered only the liability of Dr. Climaco.
On appeal, Sheri argues (1) that the trial court committed
reversible error by allowing evidence, argument, and a jury
instruction to the effect that the sole proximate cause of
Jeffrey's death was someone other than defendant Climaco; (2) that
the trial court erred in failing to grant her motion for mistrial,
which motion was based upon a newspaper disclosure of the pretrial
settlement of St. Anthony's; and (3) that the court erred in
failing to grant her motion for a directed verdict or for a
judgment notwithstanding the verdict. For reasons we will more
fully explain, we affirm.
I. FACTS
A. NEWSPAPER DISCLOSURE OF PRETRIAL SETTLEMENT
Prior to the opening statements of the attorneys, the trial
judge told the 12 regular jurors and the two alternates that they
should avoid all media accounts of the trial and, in particular,
that they should avoid reading local newspapers and listening to
the local radio stations during the trial. At the end of the first
day of the trial the jurors were admonished again to "avoid all
media contacts."
On the second day of trial, plaintiff's attorney moved for a
mistrial, on the basis of the following quote on the front page in
the previous day's afternoon edition of the local newspaper:
"In the original lawsuit filed Jan. 11, 1994,
several area doctors along with St. Anthony's Memorial
Hospital were named as respondents in discovery in the
lawsuit over the 1991 death of Jeffrey Banks. Subsequent
motions in the case involve a settlement made with the
hospital, according to Charlene A. Cremeens, attorney for
one of the defendants. All others named as respondents
in discovery *** have been dismissed, according to
Cremeens."
Plaintiff's attorney argued that his case had been irreparably
prejudiced by the newspaper article, that the court should order a
mistrial immediately, since the jury had only heard one day of
testimony, and that he did not want to proceed with the trial,
which was expected to take a full two weeks. Plaintiff's attorney
argued that in order to make a record after the trial was over, he
would have to "go out and basically interview the jurors and get
affidavits and file a motion and get the thing set up for appeal."
The trial court denied the motion for mistrial, after individually
interviewing all 12 regular jurors and the two alternates. None of
the jurors had read the newspaper article, except one of the
regular jurors, who was removed from the panel and replaced with
one of the alternates.
B. EVIDENCE PRESENTED AT THE JURY TRIAL
Jeffrey arrived at the ER with a self-inflicted stab wound to
the abdomen. At the ER, Dr. Climaco ordered a continuation of the
fluid therapy started by the ambulance staff and assessed his vital
signs. Jeffrey's blood alcohol content was assessed at .22, his
breathing was labored, his blood pressure was within the normal
range, and his heart rate was abnormally high.
The respiratory therapist on duty that night, Jeffrey
Pietrzyk, continued the respiratory assistance given by the
ambulance staff, which was to assist Jeffrey's breathing with an
"ambu bag." According to all accounts of the medical personnel at
the ER, Jeffrey was combative when he arrived at the ER and during
most of his time there. As a result of his combativeness and since
the knife was secured in his abdomen prior to surgery, Jeffrey's
limbs were restrained during his entire time in the ER.
Climaco determined that Jeffrey required surgery to remove the
knife from his abdomen, a decision which none of the experts who
testified at trial criticized. However, no surgeon was available
as soon as needed, so Climaco ordered Jeffrey transferred to Carle
Clinic in Champaign, Illinois, where the surgery was to be done.
Prior to transfer, Climaco decided to intubate Jeffrey. When a
patient is intubated, a respiratory tube is place in the patient's
mouth and into his trachea, so that he can be artificially
respirated. Climaco's attempt to intubate Jeffrey at approximately
10 p.m. was unsuccessful. As a result, Climaco called for an
anesthesiologist to perform the intubation. At approximately 10:30
p.m., a nurse anesthetist, James Kinney, came in and also unsuc-
cessfully tried to intubate Jeffrey. Starting at 10:30 p.m., Dr.
Climaco ordered that Jeffrey be given valium to sedate him.
When Shah, the anesthesiologist, arrived at 11:07 p.m., he
talked briefly with his nurse anesthetist and then ordered
succinylcholine, a drug that temporarily paralyzes a patient,
including his ability to breathe on his own, in order to accomplish
the intubation. Before Jeffrey was given the succinylcholine, he
was preoxygenated, i.e., he was given additional oxygen to avoid
problems with the period during which he could not breathe, which
occurs before the endotracheal tube is in place and working
properly. Shah placed the endotracheal tube in Jeffrey's throat,
and Pietrzyk listened for Jeffrey's breath sounds. Pietrzyk
testified that when he did not hear the proper breath sounds, he
told Shah that the tube was in the wrong place, in the esophagus
instead of the trachea. Pietrzyk testified that Shah insisted that
the tube was in the right place.
Pietrzyk continued to assist Jeffrey's breathing with the ambu
bag but still could not hear any breath sounds, so again, he told
Shah that the tube was in the wrong place. At the same time,
Pietrzyk noticed that Jeffrey's stomach was becoming noticeably
distended, which is a sign of an improper esophageal intubation, as
the air is entering the stomach rather than the lungs. According
to Pietrzyk, Shah did not respond to him, so Pietrzyk again
suggested that Shah should check the placement of the tube, at
which time Shah walked out of the room. Shortly after Shah left,
according to Pietrzyk's account, Jeffrey's heart rate went down to
30 to 40 beats per minute, which is dangerously low. Pietrzyk then
called for a "code," which is done when the hospital personnel
determine that the patient will die if not given immediate
assistance. Pietrzyk testified that the nurse anesthetist then
listened for the breath sounds and, hearing nothing, took out the
improperly placed tube and correctly reintubated Jeffrey. Pietrzyk
estimated that about five to six minutes elapsed before the second
tube was properly placed. Jeffrey was given cardiopulmonary
resuscitation, but he never revived.
Both Climaco and Shah testified. In addition to the factual
summary we have just set forth, Climaco testified that he was also
treating other patients in the ER on October 27, 1991, and that he
was in and out of Jeffrey's room at least five times that evening.
Climaco's initial treatment of Jeffrey was to give fluids intrave-
nously, since he assumed that Jeffrey had "massive bleeding" due to
the stab wound. Climaco testified that at approximately 10 p.m.,
the volume of the IV fluids was decreased, as Jeffrey's vital signs
had stabilized by that time. Climaco testified that he never
listened for rales or other problematic lung sounds after 10 p.m.
and that he never considered pulmonary edema as a possible
diagnosis. Climaco was not present when Shah was intubating
Jeffrey. He came back into the room after the code was called.
Shah's testimony directly conflicts with that of Pietrzyk, the
respiratory therapist. In particular, Shah remembered only one
instance in which Pietrzyk said that he could not hear any breath
sounds. Shah testified that when Pietrzyk said that he could not
hear any breath sounds, Shah listened for breath sounds himself and
realized that Pietrzyk was right. Shah's nurse anesthetist then
immediately corrected the tube placement. Shah estimated that only
1 to 1½ minutes elapsed between the first intubation and the
second. When Shah administered the succinylcholine and performed
the first intubation, he had not talked to Climaco, had not checked
Jeffrey's ER records, did not know how much fluid Jeffrey had been
given, had not inquired whether the ER had certain oxygen monitor-
ing equipment available to use, and did not know the level of
oxygen in Jeffrey's blood. Shah admitted that succinylcholine can
cause a person's heart rate to become dangerously slow and that if
given to an impaired patient, the decreased heart rate can end in
cardiac arrest.
Shah testified that he was present when Jeffrey's heart rate
went down to 30 or 40 and that he responded by administering
atropine to increase the heart rate. The heart monitor used on
Jeffrey indicates that his heart rate increased to 73 briefly after
the atropine was given. Shah admitted that he left the ER when
Jeffrey's heart rate came back up, even though he knew that the
effect of atropine wears off very quickly and even though he felt
it was his duty to stay with the patient until he is stable and out
of danger. Shah admitted that he did not check to see if Jeffrey's
stomach was distended before he left and that he was already gone
when the code was called.
The testimony of James Kinney, the nurse anesthetist, was
essentially the same as that given by Shah, except Kinney estimated
that the amount of time between the improper and the successful
intubations may have been about five minutes, but he stated that he
really did not know how long it took. According to Kinney, Shah
was present through the second intubation and remained until
Jeffrey was stable and was making feeble attempts to return to
normal breathing. A few minutes after Shah left, before the code
was called, Kinney also left.
C. EXPERT TESTIMONY
Plaintiff called four expert witnesses. First, Dr. John
Heidingsfelder, a forensic pathologist, testified that Jeffrey died
of pulmonary edema, or fluid accumulation in the lungs. According
to Heidingsfelder, at the time of the intubation, Jeffrey went into
heart failure due to the huge amount of fluid in his lungs.
Heidingsfelder did not attribute Jeffrey's death to Shah's improper
esophageal intubation. Specifically, Heidingsfelder testified that
even if the esophageal intubation lasted from five to six minutes,
he believed that Jeffrey died from fluid overload and pulmonary
edema.
Second, James Matthews, M.D., testified that Climaco deviated
from the accepted standard of care applicable to an ER doctor in
Effingham, Illinois, in two ways: (1) he gave too much fluid to
Jeffrey, and (2) he should have been present during the intubation.
Matthews testified that various test results showed that Jeffrey
was not bleeding internally and, therefore, did not need the large
volume of fluid given. Additionally, considering the high level of
alcohol and valium in Jeffrey's system, he should have been
sedated. Since Jeffrey was combative, Matthews felt that the
agitation was probably due to fluid overload, which can adversely
affect respiration, especially when the patient is laying flat on
his back, as was Jeffrey. According to Matthews, the cause of
Jeffrey's death was a combination of hypoxia, or a low level of
oxygen in the bloodstream, which was brought on by the fluid
overload, and the esophageal intubation.
Third, in the opinion of Dr. Graham, a forensic pathologist,
Mr. Bank's death was caused by the failure of his brain to get
enough oxygen when the intubation tube was placed into his
esophagus instead of his trachea.
The fourth expert to testify for plaintiff was Dr. Leon Ampel,
an anesthesiologist, who testified that Jeffrey's death was caused
by a combination of the fluid overload, which was Climaco's
responsibility and which forced Jeffrey into pulmonary edema, and
Shah's improper esophageal intubation. Ampel specifically
testified that at the time of Shah's intubation, Jeffrey was not on
the verge of death due to the fluid overload, but for the amount of
the fluid he was given, he was improperly monitored.
Climaco called Daniel Sullivan, M.D., an ER doctor, as his
expert witness. The trial court instructed the jury that Sullivan
was called as an expert witness by Climaco to testify regarding Dr.
Climaco's treatment and that his testimony was not to be considered
as it related to any deviation of the standard of care by Shah.
Sullivan testified that, in his opinion, Jeffrey's death was caused
by a cardiac arrest due to either the succinylcholine or the
esophageal intubation. In Sullivan's opinion, the fluids given by
Climaco prior to 11:10 p.m., when the code was called, did not
cause or contribute to Jeffrey's death. Finally, the treatment
provided by Climaco did not violate the applicable standard of
care.
D. JURY INSTRUCTIONS
The trial court read the following instruction to the jury
after Shah's testimony and subsequent settlement and before the
closing arguments:
"THE COURT: Members of the jury, A. Shah, M.D., is no
longer a party to this action. You should not concern
yourselves with this fact nor speculate regarding the
reasons for this. The fact that A. Shah, M.D., is no
longer a party to this action should not affect your
consideration of damages, if any, to be awarded to
plaintiff if you find from the evidence that the remain-
ing defendant, Ramon Climaco, M.D., is liable to the
plaintiff in accordance with the court's instructions."
During a conference with the trial court, out of the hearing
of the jury, plaintiff's attorney renewed his motion in limine to
bar any evidence or argument concerning any nonparty, which at that
time included Shah, since he had settled with plaintiff. Climaco's
attorney objected, stating that it "would be clearly inappropriate
to preclude me from now talking about the testimony that this jury
has heard" about Shah's alleged negligence. Climaco's attorney
stated that his affirmative defenses "go to sole proximate cause,
so to preclude me from commenting upon the testimony that this jury
has heard I think would be clearly improper." The trial court
denied plaintiff's motion to bar evidence and argument regarding
nonparties.
Additionally, the court denied plaintiff's motion that the
jury should be given only the first paragraph of Illinois Pattern
Jury Instructions, Civil, No. 12.05 (3d ed. 1994) (hereinafter IPI
Civil 3d No. 12.05). The instruction given to the jury, over
plaintiff's objection, is as follows:
"If you decide that the defendant was negligent and
that his negligence was a proximate cause of death to the
plaintiff, it is not a defense that something else may
also have been a cause of the death.
However, if you decide that the sole proximate cause
of death to the plaintiff was something other than the
conduct of the defendant, then your verdict should be for
the defendant."
The jury was also instructed that plaintiff was claiming that
Climaco was "a proximate cause of the death of Jeffrey Banks"
(emphasis added) and that defendant was asserting "the affirmative
defense that the sole proximate cause of Jeffrey Banks' death was
the conduct of A. Shah, M.D.," (emphasis added) and that defendant
had the burden of proving his affirmative defense.
The jury returned a verdict in favor of Dr. Climaco. It is
from this verdict that plaintiff appeals.
II. ANALYSIS
A. SOLE PROXIMATE CAUSE
The pivotal issue in this case is whether defendant Climaco
presented enough evidence to support his sole-proximate-cause
affirmative defense and jury instruction. Plaintiff argues that at
the time this case went to trial, the applicable law on this issue
was stated in two Fifth District cases: Grimming v. Alton &
Southern Ry. Co., 204 Ill. App. 3d 961 (1990), and Robertson v.
General Tire & Rubber Co., 123 Ill. App. 3d 11 (1984). Plaintiff
argues that under Grimming and Robertson, "it is not a proper
defense that a non-party to the litigation is liable for negligence
and it is improper for the jury to be instructed that it is a valid
defense." Grimming, 204 Ill. App. 3d 961; Robertson, 123 Ill. App.
3d 11.
Plaintiff is correct that Grimming and Robertson both hold
that a defendant should not be allowed to use an affirmative
defense that the sole proximate cause of plaintiff's injury is due
to the actions of a nonparty, unless the defendant has availed
himself of the remedy of either a counterclaim or third-party
action against the nonparty. Grimming, 204 Ill. App. 3d at 984-85;
Robertson, 123 Ill. App. 3d at 16-17. However, neither Grimming
nor Robertson clearly supports plaintiff's argument that the sole-
proximate-cause instruction given in the case at bar was improper.
Additionally, our supreme court has clearly stated, in Leonardi v.
Loyola University of Chicago, 168 Ill. 2d 83 (1995), that even a
general denial of liability by a defendant, without an affirmative
defense or counterclaim or third-party action, is "sufficient to
permit the defendant in support of his position to present evidence
that the injury was the result of another cause." Leonardi, 168
Ill. 2d at 94.
Hence, plaintiff's argument that the trial court erred in
denying plaintiff's motion to strike Climaco's affirmative defense,
i.e., that Shah was the sole proximate cause of Jeffrey's death,
fails. Leonardi makes it clear that Climaco had no burden to file
a sole-proximate-cause affirmative defense and that he was entitled
to present evidence regarding Shah's responsibility for Jeffrey's
death, based upon his general denial of liability in his answer.
Leonardi, 168 Ill. 2d at 93-94. "A defendant has the right not
only to rebut evidence tending to show that defendant's acts are
negligent and the proximate cause of claimed injuries, but also ***
to endeavor to establish by competent evidence that the conduct of
a third person, or some other causative factor, is the sole
proximate cause of plaintiff's injuries." Leonardi, 168 Ill. 2d at
93-94.
Plaintiff argues that Leonardi does not apply to the case at
bar, as it considered the use of Illinois Pattern Jury Instruc-
tions, Civil, No. 12.04 (3d ed. 1994) (hereinafter IPI Civil 3d No.
12.04), rather than IPI Civil 3d No. 12.05. However, we find that
Leonardi is instructive and controlling on both the issue of the
sole-proximate-cause affirmative defense and the jury instruction.
In Leonardi, also a medical malpractice case, the plaintiff argued
that the jury should be given only the first paragraph of IPI Civil
3d No. 12.04. The second paragraph of IPI Civil 3d No. 12.04, used
in Leonardi, refers to the "conduct of some person other than the
defendant" as the sole proximate cause of plaintiff's injury,
whereas the second paragraph of IPI Civil 3d No. 12.05, used in the
instant case, refers to "something other than the conduct of the
defendant" as the sole proximate cause of plaintiff's injury. The
language of IPI Civil 3d No. 12.05 is more comprehensive than the
language of IPI Civil 3d No. 12.04, as "something other than the
conduct of the defendant" may include the conduct of a nonparty
such as Dr. Shah. That IPI Civil 3d No. 12.05 refers to "something
other than the conduct of the defendant," rather than the more
specific "conduct of some person other than the defendant" of IPI
Civil 3d No. 12.04, is a distinction without meaning as applied to
the facts of this case.
We now consider whether the evidence in this case was
sufficient to warrant giving the jury the sole-proximate-cause
instruction. If the jury was presented some competent evidence
tending to support Climaco's theory that Shah was the sole
proximate cause of Jeffrey's death, then the instruction was
proper. Leonardi, 168 Ill. 2d at 101; French v. City of Spring-
field, 5 Ill. App. 3d 368, 374 (1972).
The standard for proving negligence in a medical malpractice
case is: "[T]he plaintiff, by the use of expert testimony, must
establish the standards of care against which the defendant
doctor's conduct is measured. The plaintiff must further prove by
affirmative evidence that, judged in the light of these standards,
the doctor was unskillful or negligent and that his want of skill
or care caused the injury to the plaintiff." Borowski v. Von
Solbrig, 60 Ill. 2d 418, 423 (1975). Clearly, where a defendant
seeks to prove that someone or something other than he is the sole
proximate cause of plaintiff's injury or death, the standard
enunciated in Borowski applies equally to that defendant as to the
plaintiff. In order to prevail on that point and in order to be
entitled to the second paragraph of IPI Civil 3d No. 12.05, the
defendant must produce evidence that the sole proximate cause of
the plaintiff's injury was something other than the defendant's
conduct. In the case at bar, Dr. Graham testified that, in his
opinion, to a reasonable degree of medical certainty, Jeffrey's
death was the result of the esophageal intubation performed by
Shah. Thus, the jury heard expert testimony, which, if believed,
supported Climaco's theory that Shah was responsible for Jeffrey's
death, and the instruction was properly given.
Moreover, the ultimate test for determining the propriety of
any jury instruction is whether all of the instructions, when read
as a whole, fairly, fully, and comprehensively informed the jury of
the relevant principles of law (Leonardi, 168 Ill. 2d at 100)
without misleading or confusing the jury. McCall v. Chicago Board
of Education, 228 Ill. App. 3d 803, 810 (1992). Here, plaintiff
does not argue that the sole-proximate-cause instruction was
confusing or misleading, and from our review of the record, we find
that the jury was fairly, fully, and comprehensively instructed as
to the relevant principles of law. As such, the trial court did
not abuse its discretion in allowing the jury to be instructed as
to the second paragraph of IPI Civil 3d No. 12.05.
B. MOTION FOR MISTRIAL
Plaintiff argues that the trial court erred in denying her
motion for mistrial, which was based upon the account of the
pretrial settlement of St. Anthony's in the local newspaper on the
first day of trial. Plaintiff's argument fails.
"A mistrial should be declared only as the result of some
occurrence of such character and magnitude that a party
is deprived of its right to a fair trial, and the moving
party must demonstrate actual prejudice as a result of
the ruling or occurrence. [Citation.] The trial court's
ruling on a motion for mistrial will not be disturbed
upon appellate review absent a clear abuse of discre-
tion." Baker v. CSX Transportation, Inc., 221 Ill. App.
3d 121, 138 (1991).
There is nothing in the record to indicate any pretrial order
prohibiting any of the attorneys from talking to the press about
the settlement with the hospital or any other aspect of the case.
In oral arguments before this court, plaintiff's attorney indicated
that all of the parties agreed before the trial, in a pretrial
hearing, that the settlement with the hospital would not be raised
in any way before the jury. However, there are no transcripts of
any pretrial proceedings in the record on appeal, and there is no
written order or docket entry in this record to support plaintiff's
contention.
In conclusion on this point, although we certainly do not
approve of defense counsel's discussion of the settlement with the
press, we conclude that the trial court's denial of the motion for
a mistrial was not an abuse of discretion.
C. MOTION FOR DIRECTED VERDICT
motion for directed verdict and her motion for a judgment notwith-
standing the verdict, since the evidence established that the
negligence of Dr. Climaco was a proximate cause of Jeffrey's death
and the evidence did not support any conclusion that Shah's conduct
was the sole proximate cause of Jeffrey's death. The law is
settled that a verdict should be directed and a judgment notwith-
standing the verdict should be entered only in those cases in which
all of the evidence, when viewed in the light most favorable to the
opponent of the motions, "`so overwhelmingly favors movant that no
contrary verdict based on that evidence could ever stand.'"
Johnson v. National Super Markets, Inc., 257 Ill. App. 3d 1011,
1014 (1994), quoting from Pedrick v. Peoria & Eastern R.R. Co., 37
Ill. 2d 494, 510 (1967).
It is clear in this case that the jury could reasonably
conclude, based upon the evidence, that Shah was the sole proximate
cause of Jeffrey's death and that Climaco's conduct did not
proximately cause his death. When viewed in the light most
favorable to Climaco, the evidence, which we have previously set
forth at some length, supports the jury's verdict. Moreover, the
jury was presented with highly conflicting testimony by occurrence
witnesses and differing opinions by expert witnesses. It was the
jury's province to resolve these differences by deciding which
testimony to believe and which to reject. The trial court did not
abuse its discretion in denying plaintiff's motions for directed
verdict and for judgment notwithstanding the verdict. See Maple v.
Gustafson, 151 Ill. 2d 445 (1992).
III. CONCLUSION
For all of the reasons stated, we affirm the judgment of the
trial court.
Affirmed.
CHAPMAN, J., and MAAG, J., concur.
ATTACH A FRONT SHEET TO EACH CASE
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Opinion Filed: September 5, 1996
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Justices: Honorable Terrence J. Hopkins, P.J.
Honorable Charles W. Chapman, J., and
Honorable Gordon E. Maag, J.,
Concur
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Attorneys Stephen R. Kaufmann, Sorling, Northrup, Hanna, Cullen and
for Cochran Ltd., Suite 800 Illinois Building, P.O. Box 5131,
Appellant Springfield, IL 62705; Ian Christopherson, Christopherson
Law Offices, 515 South Third Street, Las Vegas, NV 89101
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Attorneys Charlene A. Cremeens, Brad G. Pelc, Cremeens & Associates,
for 500 Fullerton Road, P.O. Box 23350, Belleville, IL 62223-
Appellee 3350
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