December 17, 2003 - Hospital escapes $ 30 million verdict

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A suburban hospital is not responsible for injuries an 8-year-old girl suffered just prior to her delivery in 2001, a state appeals panel ruled on Wednesday.

The 1st District Appellate Court upheld a Cook County jury's finding in favor of LaGrange Memorial Hospital.

The decision means that Kylie Bryant, who was born at the facility in 1995, will likely never see a $ 30 million verdict entered by the jury, because the hospital was the only defendant in the case that could afford to pay the judgment.

The plaintiff asserted that Dr. Yong Kim, an obstetrician whom the jury did find liable, delayed for 20 minutes in ordering a delivery by Caesarean section when faced with questionable fetal heart tones and that the delay proximately caused Bryant's cerebral palsy. The plaintiff also maintained that two nurses monitoring the labor during those 20 minutes were negligent.

The plaintiff settled with Kim for his $ 1 million insurance policy limit after the case went to the jury but before the $ 30 million verdict was returned. Another $ 100,000 was collected from the employer of Dr. Shanta Nath, a neonatologist who resuscitated the girl after she was delivered.

On appeal, Bryant's attorneys challenged Cook County Circuit Judge Allen A. Freeman's refusal to include a subparagraph of their proposed instructions to the jury.

The subparagraph would have asked the jury to find the hospital negligent because it failed to complete preparation for a Caesarean section delivery in a timely manner, wrote Justice Shelvin Louise Marie Hall for the reviewing court.

"Each party is entitled to have the jury clearly and fairly instructed upon each theory that is supported by the evidence," she wrote, citing Ellig v. Delnor Community Hospital, 237 Ill.App.3d 396, 405, 603 N.E.2d 1203 (1992).

The tests for determining the propriety of tendered instructions is whether the jury was fairly and comprehensively informed as to the relevant principals considering the instructions in their entirety, Hall noted. Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 658 N.E.2d 450 (1995)

However, Bryant's attorneys failed during trial to present any evidence supporting the allegation, Hall wrote in a published opinion.

"Specifically, there was no expert testimony or other evidence presented showing that the nurses violated the applicable standard of care in completing preparations for the C-section or that any institutional conduct on the part of the hospital delayed commencement of the C-section," Hall added.

The reviewing court also rejected the contention that Freeman erred by refusing to give three modified versions of Illinois Pattern Jury Instruction Civil No. 105.01.

"Plaintiffs maintain that the modified instructions told the jury to consider 'opinion and policies' as evidence of the hospital's negligence," Hall wrote. "Plaintiffs argue that the instruction the trial court actually gave the jury, IPI Civil No. 105.01, limited the jury's consideration to only evidence received by way of expert testimony."

The instruction does not direct the jury to consider only expert testimony in reaching a verdict, Hall added.

"Rather, that instruction, which was given here, expressly tells jurors that they could consider expert testimony or evidence of professional standards or conduct presented at trial in determining the standard of care and any deviation therefrom."

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