Wojcik v. City of Chicago

Case Date: 10/27/1998
Court: 1st District Appellate
Docket No: 1-97-3117

Wojcik v. City of Chicago, No. 1-97-3117

(1st Dist. 10-27-98)



SECOND DIVISION

OCTOBER 27, 1998



1-97-3117

PAULINE WOJCIK and PAUL WOJCIK,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, a municipal corp., andPATRICK McGUINNESS,

Defandant-Appellee.

APPEAL FROM THE CIRCUITCOURT OF COOK COUNTY,ILLINOIS

No. 91-L-3786

THE HONORABLE FRANKORLANDO,JUDGE PRESIDING.





JUSTICE COUSINS delivered the opinion of the court:

Plaintiffs, Pauline and Paul Wojcik, filed a medical malpractice suit againstdefendants, City of Chicago and Patrick McGuinness, a paramedic employed by theCity of Chicago fire department, for willful and wanton misconduct resulting ininjuries to Pauline Wojcik. A jury returned a verdict in favor of defendants andagainst plaintiffs. On appeal, plaintiffs contend that: (1) the trial courtimproperly admitted evidence that St. Anthony Hospital was the sole proximate causeof the plaintiffs' injuries; (2) the trial court improperly instructed the juryregarding proximate cause; (3) a variety of other trial court evidentiary rulingswere incorrect; and (4) the plaintiffs were entitled to a judgment non obstanteveredicto or a new trial.

BACKGROUND

On March 11, 1990, Pauline Wojcik, a diabetic, was treated for hypoglycemia byparamedics employed by the City of Chicago (the City). Hypoglycemia is a conditionthat results when glucose or blood sugar in a person's body is depleted. Theevidence in the record established that at or around 5 a.m. Paul Wojcik dialed 911because Pauline was sweaty and unresponsive. The paramedics, Patrick McGuinness andJohn Scheuneman(1), arrived at the Wojciks' apartment atapproximately 5:30 a.m. and tested Pauline's blood sugar, whichthey found was quite low. Scheuneman connected an intravenous(IV) line to the back of Pauline's right hand and administered anampule of 50 cc's of a 50% dextrose solution (D50) into the vein.The method of administering D50 is to begin an IV line with 5%dextrose (D5W) and, when the IV is patent, administer a push ofD50 until the patient is responsive. D5W is an isotonic solution,meaning that it is approximately the same density as blood andbody fluids. However, D50 is hypotonic, meaning it is more denseand concentrated than body fluids.

Pauline was transported by ambulance to St. Anthony Hospital,arriving at approximately 6:08 a.m. St. Anthony Hospitalcontinued the treatment and administered an additional 500 cc'sof D5W into the IV set up by Scheuneman.

The Wojciks arranged for a private ambulance service to transferPauline from St. Anthony Hospital to Mount Sinai Hospital, whereher attending physician was located. Reliance Ambulanceparamedics Osmar Orozco and Juan Mejia transferred Paulineapproximately three to four hours after her arrival at St.Anthony Hospital. Mejia noticed that Pauline's right hand was redand swollen, and he documented that the swelling was a result ofinfiltration of D50 administered by paramedics McGuinness andScheuneman into Pauline's right hand. Infiltration occurs whenthe fluid intended for the vein goes into the surrounding tissuesinstead. As a result, the body sends fluids to dilute the tissuesand swelling occurs. Once at Mount Sinai Hospital, Pauline wasseen, examined, and admitted for further care.

On March 12, 1990, the day after the incident, Dr. OrhanKaymakcalan, a specialist in hand surgery and microsurgery,noticed marked swelling of Pauline's right upper extremity anddetermined that she had compartment syndrome. Compartmentsyndrome occurs when there is increased pressure in a limitedspace and insufficient blood flow into the area, depriving nervesand muscles in the area of the oxygen needed in order to functioncorrectly. If six hours elapse after the compartment syndromeoccurs, surgery will generally be required to decompress thearea.

Dr. Kaymakcalan performed an emergency fasciotomy to decompressthe dorsum of Pauline's right hand and forearm. Following thatsurgery, another procedure was done to graft skin taken from herhip to close the wound on her right forearm. Pauline wasdischarged from Mount Sinai Hospital on March 20, 1990, andunderwent occupational therapy until August 24, 1990, to helpwith her diminished sense of touch. She also had permanent damageand scarring of the right forearm, top of the hand between thethumb and index finger, and hip.

During trial, plaintiffs presented opinion testimony from twoexperts to establish that the conduct of McGuinness andScheuneman, the City paramedics, was willful and wanton. Bothexperts testified that a minimal national standard of careapplied to the care in issue.

Richard Hansson, a former emergency medical technician andparamedic, testified that the normal course of treatment forhypoglycemia is to administer D50 through an IV. Hansson notedthat one should use as large a vein as possible for the IVbecause the treatment requires the infusion of a large volume ofliquid. Hansson asserted that the larger vein reduces the risk ofinfiltration, which occurs when the fluid intended for the veingoes into the surrounding tissues instead. He further noted thatinfiltration is not infrequent and can be avoided by observation.Consequently, if medical personnel see swelling at the site ofthe IV, they should discontinue the IV and search for anothersite.

According to Hansson, McGuinness and Scheuneman did not meet thestandard of care when they were treating Pauline because theyselected a vein that was too small and failed to discontinue theIV when infiltration and swelling occurred. Further, Hanssonopined that the conduct showed a conscious disregard for a knownrisk.

Dr. Albert Frankel, a specialist in emergency medicine who isalso trained in orthopedic surgery, was the plaintiffs' secondexpert. Dr. Frankel testified that, in 1990, paramedics wouldtreat hypoglycemia by starting an IV in a vein and then giving aD50 push through the IV. Because infiltration is noticeable whenit occurs, Dr. Frankel opined that the paramedics should havenoticed the infiltration of Pauline's hand. Dr. Frankel felt thatin failing to observe the local swelling and discontinue the IVimmediately, the defendants failed to exercise the skill and careof reasonably well-qualified paramedics. However, he did notbelieve the paramedics consciously disregarded a known risk toPauline in doing so. Dr. Frankel opined that the infiltration ofD50 given by the defendants caused Pauline's injuries.

The defendants presented opinion testimony from two expertwitnesses. Dr. Joseph Mitton, a specialist in emergency medicine,opined that Pauline's compartment syndrome was not a result ofinfiltration of D50 administered by defendants. Rather, hebelieved the infiltration that led to compartment syndrome wasmore likely caused by the later infiltration of D5W administeredthrough the IV line at St. Anthony Hospital.

Dr. Mitton testified that if D50 was infiltrating when firstadministered, Pauline would not have responded as quickly.Moreover, he opined that a person with peripheral vasculardisease is more likely than a person without the disease to getcompartment syndrome from an IV because a person with the diseasehas decreased blood flow in the small blood vessels in theextremities. Further, Dr. Mitton asserted that one cannot tell ifsomeone has peripheral vascular disease by looking at him or her.

The defendants' second expert was Janis Sanchez, a nurse managerof the emergency room at Ravenswood Hospital who trainsparamedics. Sanchez explained that standing medical orders arestep-by-step instructions used by paramedics directing them howto treat particular conditions. The orders are written byphysicians and establish the standard of care for treatinginjured patients in Chicago.

The standing medical orders in effect in March 1990 allowed forparamedics to give a D50 push through an IV once they tested thepatient's blood sugar and found it to be low. Sanchez explainedthat if the fluid did not flow into the vein when the IV wasattached, it would cause visible swelling around the site.Further, she testified that paramedics were trained to look andmake sure there was no swelling at the site. If swelling wasobserved, they were to immediately stop the IV and look foranother site.

On February 26, 1997, following trial, the jury returned averdict in favor of defendants and against plaintiffs. Plaintiffsappeal.

We affirm.

ANALYSIS

I

Plaintiffs first contend that the circuit court abused itsdiscretion in allowing the admission of evidence that St. AnthonyHospital was the sole proximate cause of Pauline's injuries.Specifically, they allege that the evidence of fault by nonparties was not at issue and was highly prejudicial.

Plaintiffs correctly note that defendants were jointly andseverally liable under section 2~1118 of the Illinois Code ofCivil Procedure (735 ILCS 5/2~1118 (West 1994)). However, theirreliance on the statute is misplaced as comparative fault was notan issue in the case. Defendants denied that they were evenpartly a proximate cause of Pauline's injuries. Rather, thedefense theory was that the hospital was the sole proximate causeof Pauline's injuries.

The present case accords with Leonardi v. Loyola University, 168Ill. 2d 83, 658 N.E.2d 450 (1995). In Leonardi, the estate of adeceased patient brought a medical malpractice suit against thedecedent's hospital and physicians following an emergencypulmonary embolectomy which resulted in irreversible brain damageto decedent. Leonardi, 168 Ill. 2d at 90, 658 N.E.2d at 454. Inruling on the admissibility of evidence relating to defendant'ssole proximate cause argument, our supreme court noted that"[t]he sole proximate cause defense merely focuses the attentionof a properly instructed jury *** on the plaintiff's duty toprove that the defendant's conduct was a proximate cause ofplaintiff's injury." Leonardi, 168 Ill. 2d at 94, 658 N.E.2d at456. "A defendant has the right not only to rebut evidencetending to show that defendant's acts are negligent and theproximate cause of claimed injuries, but also has the right toendeavor to establish by competent evidence that the conduct of athird person, or some other causative factor, is the soleproximate cause of plaintiff's injuries." Leonardi, 168 Ill. 2dat 101, 658 N.E.2d at 459.

Consequently, defendants' general denial of liability evenwithout an affirmative defense, counterclaim, or third-partyaction is sufficient to permit them, in support of theirposition, to present evidence that the injury to Pauline was theresult of another cause. See Leonardi, 168 Ill. 2d at 94, 658N.E.2d at 455.

Plaintiffs further contend that their motion in limine to excludeopinion testimony regarding non party fault should have beengranted in that neither the factual evidence nor opiniontestimony supported the defense's theory that St. AnthonyHospital was the sole proximate cause. As a rule, however, therelevance and admissibility of evidence at trial is committed tothe sound discretion of the trial court and its determinationwill not be overturned absent a showing of clear abuse of thatdiscretion resulting in substantial prejudice affecting theoutcome of the trial. Leonardi, 168 Ill. 2d at 92, 658 N.E.2d at454-55; People v. Hayes, 139 Ill. 2d 89, 130, 564 N.E.2d 803, 820(1990).

"Relevant evidence" means evidence having any tendency to makethe existence of any fact that is of consequence to thedetermination of the action more or less probable than it wouldbe without the evidence. Fed. R. Evid. 401; People v. Free, 94Ill. 2d 378, 413, 447 N.E.2d 218, 235 (1983). Further, questionsof negligence, due care and proximate cause are ordinarilyquestions of fact for the jury to decide and become questions oflaw only when the facts are undisputed or there can be nodifference in the inference a jury could draw from the facts. Neyv. Yellow Cab Co., 2 Ill. 2d 74, 84, 117 N.E.2d 74, 80 (1954);Ward v. K mart Corp., 136 Ill. 2d 132, 156, 554 N.E.2d 223, 226(1990).

We cannot say that the admission of evidence regardingdefendants' sole proximate cause argument was error or thatprejudice resulted from the admission of the evidence therebywarranting a new trial. During discussion of the motion inlimine, the following exchange occurred between the court andcounsel for the plaintiffs:

"MS. CLINITE: Does the Court disagree with my understandingof the statute that joint and several applies to this caseand counsel may not argue to the jury that nonparties were atfault?
THE COURT: If they're all the painted [sic] with the brush offault, I'll let you argue as to what the degree of fault is.Because one is at fault, that doesn't preclude the argumentthat's made by the plaintiff that the fault that rises to thelevel of whatever it is that your degree of fault is accusingthem of, and you proceed on that theory.
MS. CLINITE: How is the fault of anybody other than thedefendant in issue?
***
THE COURT: That's going to be the focus of the plaintiff'scase, I presume, but it's addressing Mr. McGuinness and bylinkage to the City. And the I [sic] perceive the defendant'sevidence is going to go along the lines that the McGuinnessdefendant did no wrong and the sole proximate cause, if any,is elsewhere to be found."

The court found the evidence to be relevant to the defendants'sole proximate cause theory and allowed the testimony. We agree.

Plaintiffs further contend that defendants presented no competentevidence that the IV infiltration was caused by St. AnthonyHospital as the issue in the case concerned "whether defendantsimproperly administered IV push of 50% dextrose into the righthand, and then failed to promptly remove it when infiltrationbegan."

It has been held that in any negligence action the plaintiffbears the burden of proving not only duty and breach of duty, butalso that defendant proximately caused plaintiff's injury. Smithv. Eli Lilly & Co., 137 Ill. 2d 222, 232, 560 N.E.2d 324, 328(1990). The element of proximate cause is an element of theplaintiff's case. "[I]f there is evidence that negates causation,a defendant should show it. However, in granting the defendantthe privilege of going forward, also called the burden ofproduction, the law in no way shifts to the defendant the burdenof proof." Leonardi, 168 Ill. 2d at 94, 658 N.E.2d at 455; seealso M. Graham, Cleary & Graham's Handbook of Illinois Evidence