Hardy v. Cordero ( 2010 )

No. 3--09--0109
Filed April 8, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
MARILYN J. HARDY, ) Appeal from the Circuit Court
) of the 14th Judicial Circuit
Plaintiff-Appellant, ) Rock Island County, Illinois
)
v. ) No. 08--L--22
)
MARTHA CORDERO and MEDICAL )
ARTS ASSOCIATES, LTD., a )
Corporation, )
) Honorable Alan G. Blackwood,
Defendants-Appellees. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
Plaintiff, Marilyn Hardy, filed this medical malpractice
claim against nurse Martha Cordero and her employee, Medical Arts
Associates, Ltd. On plaintiff's motion, the trial was expedited.
This medical malpractice case went to jury trial less than 10
months after it was filed. Following a trial in the circuit
court of Rock Island County, the jury returned a verdict in
defendants' favor. Plaintiff appeals, claiming the trial court
erred in denying her motions for a directed verdict, judgment
notwithstanding the verdict, and for a new trial.
BACKGROUND
In December of 2006, plaintiff underwent surgery for cancer.
Subsequently, on February 23, 2007, she was given an intravenous
(IV) infusion of chemotherapy by defendant Martha Cordero, a
nurse employed by defendant Medical Arts Associates, Ltd.
Specifically, nurse Cordero infused a drug known as Adriamycin.
Adriamycin is a vesicant, a substance that causes tissue
blistering if it leaks from a blood vessel. Defendants conceded
that there was a leakage (extravasation) of the vesicant drug
into Marilyn's tissue.
The protocol in place in February of 2007 at Medical Arts
Associates for the management of an extravasation of a vesicant
stated, "When extravasation of a vesicant is suspected, stop the
infusion." On February 27, 2008, plaintiff filed suit alleging
negligence against nurse Cordero. Defendant Medical Arts
Associates was named on a theory of vicarious liability. Trial
began on October 20, 2008. The main issue at trial was whether
nurse Cordero breached the standard of care by not properly
identifying the extravasation and stopping the infusion.
Nurse Cordero testified that when she began the infusion,
there was redness at the IV site "the size of a pinky finger."
This initial redness increased to the size of a nickel by the
conclusion of the IV. It was pointed out at trial that during
her deposition, nurse Cordero stated the redness was the size of
her pinky finger with no indication of whether she meant the
length or width of her finger. At trial, she clarified that she
meant the size of the tip of her pinky finger.
Cordero stated that if the size of the redness was, in fact,
the length of her pinky finger, she would have immediately
stopped the infusion. However, the redness was the size of the
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tip of her pinky finger which, given her training and 14 years of
experience, was not unusual under any circumstances. Blood
return was good, there was no puffiness at the infusion site, and
as such, she had no indication of the presence of an
extravasation.
Theresa Rasche, a nurse at Medical Arts Associates,
testified as an occurrence witness. She agreed with nurse
Cordero that there was no "puffiness" present at the infusion
site. She remembered the plaintiff saying that the burning "did
not hurt that bad" and she did not see any evidence of
extravasation. Nurse Rasche further agreed that blood return is
a "big criteria" [sic] regarding evidence of extravasation. It
was her observation that the redness observed at plaintiff's IV
site was the size of a pencil eraser. She did agree that if the
redness increased to the size of a "whole pinky finger," the IV
should be discontinued.
Plaintiff's expert, Michelle Klups, testified that she
believed nurse Cordero breached the standard of care applicable
to a reasonable, careful oncology nurse in the area "because Ms.
Hardy complained of burning from the start of the IV, and with
that complaint, the IV should have been stopped immediately."
Klups explained that the presence of "any redness is a sign that
the infusion should be stopped and it should moved to a different
site" regardless of whether the "redness was the size of a pinky
finger or nickel sized."
Dr. Michael Porubcin, an oncologist at Medical Arts
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Associates, also testified. He stated that if there was redness
"the length of a pinky finger" with burning, he would expect the
IV to be discontinued. He further stated that burning does not
always indicate the existence of an extravasation. Dr. Porubcin
noted that he relies on Cordero's nursing judgment given his
confidence in her experience and background, and that he had no
reason to question nurse Cordero's judgment concerning the care
given plaintiff.
Following the close of evidence, plaintiff moved for a
directed verdict. Plaintiff argued the evidence unequivocally
proved that nurse Cordero failed to follow Medical Arts Associ-
ates' policies and well-established nursing standards and,
therefore, it was uncontroverted that defendants breached the
applicable standard of care. That is to say, redness and pain or
burning requires stoppage of the intravenous infusion of
Adriamycin every time. Defendants disputed plaintiff's conten-
tions. The trial court denied plaintiff's motion for directed
verdict.
During closing arguments, plaintiff requested that the jury
render verdicts against both nurse Cordero and Medical Arts
Associates in an amount between $600,000 and $900,000, broken
down as follows:
Disfigurement: $ 40,000 to $ 60,000
Loss of a Normal Life-
Past: $ 50,000 to $100,000
Loss of a Normal Life-
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Future: $100,000 to $150,000
Costs Associated with
Help Cleaning: $ 1,200 to $ 1,200
Lost Earnings-Past: $ 14,500 to $ 16,000
Pain and Suffering: $400,000 to $600,000
Total: $605,700 to $927,200
The jury ultimately returned a verdict in defendants' favor.
Thereafter, plaintiff filed a motion for a judgment notwith-
standing the verdict, claiming "she has proved each and every
element of her claim, there are no intervening causes, and it is
clear from the evidence that defendant Cordero failed to meet the
standard of care." The trial court denied this motion.
Plaintiff also filed a motion requesting a new trial,
alleging that the trial court committed evidentiary errors by
improperly admitting certain evidence. Specifically, plaintiff
argued that the trial court erred by allowing references to
plaintiff's failure to mitigate damages, by allowing evidence
regarding plaintiff's alleged comments about continuing with the
administration of Adriamycin, and by allowing defendant Martha
Cordero to testify to opinions that were not previously
disclosed. The trial court denied plaintiff's motion. This
appeal followed.
ANALYSIS
Plaintiff argues on appeal that the trial court erred when:
(1) denying her motion for a directed verdict; (2) denying her
motion for a judgment notwithstanding the verdict (n.o.v.); and
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(3) denying her motion for a new trial. The plaintiff's first
two claims are intertwined as they both allege that plaintiff
offered uncontradicted testimony to prove all the elements of her
cause of action.
I. Motion for Directed Verdict
Plaintiff alleges, with regard to the trial court's denial
of her motion for a directed verdict, that the trial court erred
in failing to recognize that plaintiff established a prima facie
case of medical negligence that was never contradicted by the
defendants and, in fact, was admitted by two employees of Medical
Arts Associates. Continuing this line of reasoning, plaintiff
argues that since she unequivocally proved her prima facie case
of medical negligence, the jury was not free to disregard her
expert's uncontradicted opinion that Martha Cordero breached the
standard of care applicable to a reasonable oncology nurse when
she failed to stop the IV infusion. Therefore, plaintiff
concludes it was error to deny her motion for a directed verdict.
We review the trial court's denial of a motion for directed
verdict, as well as its denial for a motion for judgment n.o.v.,
de novo. Buckholtz v. MacNeal Hospital, 337 Ill. App. 3d 163,
785 N.E.2d 162 (2003); Donaldson v. Central Illinois Public
Service Co., 199 Ill. 2d 63, 767 N.E.2d 314 (2002). "[V]erdicts
ought to be directed and judgments n.o.v. entered only in those
cases in which all of the evidence, when viewed in its aspect
most favorable to the opponent, so overwhelmingly favors movant
that no contrary verdict based on that evidence could ever
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stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
510, 229 N.E.2d 504, 513-14 (1967). In making this assessment, a
reviewing court must not substitute its judgment for the jury's
and may not reweigh the evidence or determine the credibility of
witnesses. Donaldson, 199 Ill. 2d at 89. A directed verdict
should not be granted where "there is any evidence, together with
reasonable inferences to be drawn therefrom, demonstrating a
substantial factual dispute, or where the assessment of
credibility of the witnesses or the determination regarding
conflicting evidence is decisive to the outcome." Maple v.
Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508, 516 (1992).
A central issue in a medical malpractice action is the
standard of care against which the medical professionals' alleged
negligence is judged. Curi v. Murphy, 366 Ill. App. 3d 1188, 852
N.E.2d 401 (2006). It is the plaintiff's burden to prove by a
preponderance of the evidence that the defendant deviated from
the standard of care. Borowksi v. Von Solbrig, 60 Ill. 2d 418,
423, 328 N.E.2d 301, 304-05 (1975). Of course, this requires
proof of the applicable standard of care. A deviation from the
standard of care constitutes professional negligence, which must
be proved by expert testimony. Borowski, 60 Ill. 2d at 423, 328
N.E.2d at 304-05. The question of whether a medical professional
deviated from the standard of care is a question of fact for the
jury. Mansmith v. Hameeduddin, 369 Ill. App. 3d 417, 425, 860
N.E.2d 395, 404 (2006), citing Borowski v. Von Solbrig, 60 Ill.
2d 418, 328 N.E.2d 301 (1975), citing Pedrick v. Peoria & Eastern
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R.R. Co., 37 Ill. 2d 494, 510 (1967).
Plaintiff argues that her expert Michelle Klups' testimony
unequivocally established that "any redness is a sign that the
infusion should be stopped and should be moved to a different
site." Plaintiff further alleges that the only evidence
regarding the standard of care adduced at trial clearly stated
that it was breach of the standard of care to fail to move the IV
to a different site once any redness whatsoever was noticed.
Therefore, plaintiff contends it was error to deny her motion for
a directed verdict as uncontradicted evidence proved defendants
violated the standard of care. We disagree.
Nurse Cordero testified (as an expert on her own behalf)
that the signs and symptoms of an extravasation are swelling,
stinging, burning, pain at the injection site, an IV flow rate
that slows or stops, erythema, and inflamation or blanching at
the injection site. While she noticed redness around the
injection site and the plaintiff complained of burning, she did
not believe that the standard of care called for her to stop the
IV administration. Specifically, when asked, "Wouldn't you agree
with me that under this authority that the standard of care
called for you to stop the IV administration?" she answered,
"No." Nurse Cordero stated that the standard of care in
performing such a procedure "indicates you can continue with an
irritant." She then stated that burning and redness are also
signs of an irritant and do not always equate to an
extravasation. Cordero admitted that if she suspected an
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extravasation, then the standard of care would call for her to
stop the procedure. Nurse Cordero testified that it is
acceptable to continue the treatment even though a small amount
of redness existed at the IV site and the patient experienced
burning, especially in light of the fact that there continued to
be "good blood return." In her opinion, the article relied upon
by the plaintiff's expert only says to "stop if you think its
extravasation," and does not establish a protocol mandating that
the procedure be stopped at the first sign of redness or burning.
She reiterated that while burning can be a sign of extravasation,
it can also be a sign of a simple irritant.
Nurse Cordero stated that she had administered Adriamycin
more than 100 times over her 14-year career. The plaintiff's
case was the only extravasation or infiltration she had ever
experienced. Nurse Cordero was specifically asked what she
thought of the plaintiff's expert's opinion that claimed "the
very fact of the redness alone should have told you to stop that
IV." She disagreed with that assessment, noting it is very
common to get redness just from the insertion of the needle.
"When that redness did not get any bigger in size and I was
continuing to get good blood return, it was not swelling or
puffing up, I did not think it was extravasation."
Nurse Cordero specifically disagreed with plaintiff's
expert, Klups, who stated that good blood return is not a
reliable indicator of the absence of extravasation. Cordero
claimed that good blood return is "one of the main reliable
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indicators."
While plaintiff claims she unequivocally established that
the standard of care called for the discontinuation of the
procedure once any redness was noted at the IV site, nurse
Cordero's testimony specifically refuted that allegation. This
created questions of fact for the jury to resolve as to what the
exact standard of care was in this matter and whether nurse
Cordero violated the standard of care. The trial court did not
err in denying plaintiff's motion for a directed verdict.
II. Judgment n.o.v.
Plaintiff argues it was error to deny her motion for a
judgment n.o.v., claiming that the jury was not free to disregard
plaintiff's expert's opinion that nurse Cordero breached the
standard of care. It is clear, however, that the jury simply
resolved questions of fact against the plaintiff and in
defendants' favor. "Indeed, the jury, as the trier of fact, is
entitled to believe one expert over the other where the experts
offer divergent conclusions." Hall v. National Freight, Inc.,
264 Ill. App. 3d 412, 423, 636 N.E.2d 791, 799 (1994). Again, a
judgment n.o.v. should only be granted in cases in which all of
the evidence, when viewed in the light most favorable to the
opponent, so overwhelmingly favors the movant that no contrary
verdict could ever stand. Wodziak v. Kash, 278 Ill. App. 3d 901,
663 N.E.2d 138 (1996). "'This is clearly a very difficult
standard to meet, limiting the power of the circuit court to
reverse a jury verdict to extreme situations only.'" Jones v.
10
Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1125, 738
N.E.2d 542, 547 (2000), quoting People ex rel. Department of
Transportation v. Smith, 258 Ill. App. 3d 710, 714, 631 N.E.2d
266 (1994).
In light of nurse Cordero's expert testimony that the
standard of care did not call for removal of the IV where only
redness and burning were present given the good blood return, we
cannot say that the evidence so overwhelmingly favors plaintiff
that no contrary verdict could ever stand. To do so would
involve substituting our opinion concerning the weight of the
evidence for that of the jury. We hold the trial court did not
err in denying plaintiff's motion for judgment n.o.v.
III. Evidentiary Claims
Finally, plaintiff argues that the trial court allowed a
number of evidentiary errors to occur and, therefore, erred when
denying her motion for a new trial. Specifically, plaintiff
alleges it was error: (1) to deny plaintiff's attempts to cross-
examine nurse Rasche as a controlled expert witness; (2) to allow
testimony regarding the plaintiff's comments during the medical
procedure; and (3) to allow Dr. Porubcin to testify that he told
plaintiff about the possibility of going to physical therapy.
The circuit court's ruling on the admissibility of evidence is
reviewed under an abuse of discretion standard. Aguirre v. City
of Chicago, 382 Ill. App. 3d 89, 887 N.E.2d 656 (2008). An abuse
of discretion occurs when no reasonable person would rule as the
circuit court ruled. Aguirre, 382 Ill. App. 3d at 98, 887 N.E.2d
11at 663.
A. Cross-examination of Rasche
Plaintiff attempted "to cross-examine Ms. Rasche as to her
knowledge regarding the standard of care, and what she would have
done as a reasonably careful oncology nurse confronted with the
facts of this case." Defense counsel objected to this line of
questioning, arguing that nurse Rasche was merely an occurrence
witness and not an expert witness. The trial court sustained
many of defendants' objections. This, plaintiff claims, deprived
her "of a fair trial in that plaintiff had learned of facts
during Rasche's discovery deposition which would support the
claim that Rasche agreed that the standard of care for a
reasonable oncology nurse confronted with these facts, namely,
redness and burning sensation at the commencement of the
Adriamycin, called for the stopping of the IV."
Plaintiff requested and was allowed to make an offer of
proof during cross-examination of nurse Rasche concerning "policy
and practice at Medical Arts." During that offer of proof, nurse
Rasche stated, "I don't know what I would have done" if
confronted with the same set of facts. Moreover, when asked if
it was Medical Arts Associates' policy to stop an IV in such
circumstances, she replied, "I'm not aware of that policy." At
that point, plaintiff's counsel ended the offer of proof.
Courts have split as to whether it is proper or improper for
medical experts to testify as to what they personally would have
done if presented with the facts facing defendants, as opposed to
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merely testifying as to whether defendants' actions violate the
applicable standard of care. See Schmitz v. Binette, 368 Ill.
App. 3d 447, 857 N.E.2d 846 (2006); Gallina v. Watson, 354 Ill.
App. 3d 515, 821 N.E.2d 326 (2004); Walski v. Tiesenga, 72 Ill.
2d 249, 381 N.E.2d 279 (1978); Stevenson v. Nauton, 71 Ill. App.
3d 831, 390 N.E.2d 53 (1979); Mazzone v. Holmes, 197 Ill. App. 3d
886, 557 N.E.2d 186 (1990). Nurse Rasche's discovery deposition
is not in evidence. It was not part of plaintiff's offer of
proof. At trial, she unequivocally stated she did not know what
she would have done if confronted with the same situation as was
nurse Cordero. In light of her answer, we fail to see how the
trial court abused its discretion when excluding that testimony
or how keeping that testimony from the jury prejudiced the
plaintiff.
Moreover, in plaintiff's offer of proof, nurse Rasche was
never asked if defendants' actions violated the applicable
standard of care. She was only asked if she would have done
something differently or if defendant's actions violated a
specific Medical Arts Associates' policy. Again, she responded
that she was not aware of any policy that nurse Cordero's
decision violated. Keeping such testimony from the jury in no
way prejudiced the plaintiff, denied her a fair trial, or
prevented her from presenting her theory of her case.
B. Plaintiff's Testimony
Plaintiff further argues that it was error to allow testi-
mony that plaintiff wanted to continue the IV even though she was
13
experiencing burning during the treatment. Specifically, plain-
tiff points to three passages in the record in which nurse
Rasche, once, and defendant Cordero, twice, testified that
plaintiff wanted to continue with the IV despite the burning.
Plaintiff argues such testimony violated an order in limine that
prohibited "testimony that Ms. Hardy was comparatively negli-
gent." However, during trial, plaintiff failed to object to the
testimony of which she now complains and never moved to strike
it. Nevertheless, plaintiff argues such testimony was "essen-
tially in violation of the in limine order" and, therefore, she
is entitled to a new trial.
"Once a motion in limine is granted, the movant must be
vigilant and object when evidence is presented which may violate
the order. The purpose of an in limine order is to exclude
inadmissible evidence, not to create a trap which results in a
new trial if the court in retrospect determines the rule was
violated." Cunningham v. Millers General Insurance Co., 227 Ill.
App. 3d 201, 206, 591 N.E.2d 80, 83 (1992), citing Reidelberger
v. Highland Body Shop, Inc., 83 Ill. 2d 545, 416 N.E.2d 268(1981). "A motion to strike is required to preserve errors in
the admission of evidence. *** [A] party opposing evidence waives
any objection unless a motion to strike is made as soon [as] the
objectionable nature of evidence becomes apparent." Netto v.
Goldenberg, 266 Ill. App. 3d 174, 178, 640 N.E.2d 948, 952
(1994). Plaintiff failed to object to, and never moved to
strike, either nurse Rasche's or nurse Cordero's references to
14
plaintiff's wishes to continue the IV. Plaintiff has forfeited
the issue.
C. Physical Therapy
Moreover, plaintiff neither objected to nor moved to strike
Dr. Porubcin's testimony that he discussed ordering physical
therapy for plaintiff but she declined such treatment. As such,
we find plaintiff has forfeited that issue as well. See Netto v.
Goldenberg, 266 Ill. App. 3d at 178, 640 N.E.2d at 952. Given
these findings, we hold that the trial court did not err when
denying plaintiff's posttrial motion requesting a new trial.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Rock Island County is affirmed.
Affirmed.
CARTER and McDADE, JJ., concur.
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