Brain Damage to newborn

Jury Instructions-IL > Medical Malpractice > Brain Damage to newborn

Northern Trust Bank, as Guardian of Estate of Luca Vaia vs. Loyola Medical Center and Hospital, Dr. Khaled Hilal, Dr. Jonathon Muraskas and Terri Russell, R.N.NNP 03 L 10647

Brain Damage to New Born

Loyola successfully invoked the “empty chair” defense after Elmhurst settled before trial. The plaintiff claimed that Loyola physicians negligently delayed an umbilical blood transfusion which resulted in toxicity and irreversible brain damage on a baby who was transferred from Elmhurst Hospital with critical biliruben levels. Loyola countered that the sole proximate cause of brain damage rested with Elmhurst Hospital and physicians who had previously failed to diagnose and treat the baby when biliruben levels and symptoms were notable. This 2008 case included instructions on “real time audio/visual simulcast” expert testimony and a Non-IPI instruction on “increased risk of future loss of life expectancy and harm” under Dillon v. Evanston 199 Ill 2d 483. [P.S. After deliberations for nearly 9 hours, the jury returned a verdict for the Defendant. The jury was polled. Some of the jurors were crying or tearing. A minister was the foreman of the jury.]

Final Draft of Pl/Deft Merged Instructions with Modifications (marked & continuous)

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IPI 1.01 Preliminary Cautionary Instructions

The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation or an individual, should receive your same fair consideration.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 Modified: Evaluation of Real Time Audio/Visual Simulcast Testimony

The testimony of Dr. John Menkes and Dr. James Glower was presented here live through an audio and video simulcast from locations outside the State of Illinois. The parties have agreed to accept the Court’s administration of the oath to these witnesses as sworn testimony in this trial.

You should give this testimony the same consideration you would give it had the witnesses personally appeared in court.

IPI 3.01 Rulings and Remarks of the Court

Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

3.02 Witness Who Has Been Interviewed by Attorney (2006)

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not affect the credibility of the witness.

3.03 Liability Insurance [30.22]

If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned you verdict, the court will make whatever adjustments are necessary in this regard.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.08 – Opinion Testimony

You have heard witnesses give opinions about matters requiring knowledge and skill. You should judge their testimony in the same way you judge the testimony from any other witness. The fact that such persons have given opinions does not mean that you are required to accept them. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

12.04 Concurrent Negligence Other Than Defendant’s

More than one person may be to blame for causing an injury. If you decide that a defendant was negligent and that his or her negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame or that something else may have also been a cause of the injury.

However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendants or something other than the conduct of the defendants, then your verdict should be for the defendants.

IPI 15.01 Proximate Cause

When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.

IPI 20.01 – ISSUES – Negligence

The Plaintiff in this case is: Luca Vaia, a minor, by The Northern Trust Company as Guardian of his Estate.

The Defendants in this case are: Dr. Jonathan Muraskus, Loyola University Physician Foundation, Dr. Khaled Hilal, Terri Russell, R.N. NNP, and Loyola University Medical Center.

The plaintiff claims that Luca Vaia was injured and sustained damages, and that the defendants were negligent in one or more of the following respects:

As to Dr. Jonathan Muraskas and Loyola University Physician Foundation:

Failed to timely direct Dr. Hilal to order blood for the exchange transfusion of Luca Vaia;
Failed to come to the hospital and evaluate Luca Vaia;
Failed to come to the hospital and supervise the exchange transfusion of Luca Vaia.

As to Dr. Khaled Hilal and Loyola University Medical Center

Failed to timely order blood for the exchange transfusion of Luca Vaia;
Placed the umbilical venous catheter in an improper position;
Failed to identify the improper placement of the venous catheter on the chest x-ray;
Failed to replace the #5 French catheter with a #8 French catheter when the #5 French catheter did not perform properly
Failed to call and inform Dr. Muraskas that Dr. Hilal could not get vascular access to perform the exchange transfusion;

As to Terri Russell, RN, N.N.P. and Loyola University Medical Center:

Failed to promptly transfer Luca Vaia from Elmhurst Memorial Hospital to Loyola University Medical Center.

The plaintiff further claims that one or more of the foregoing was a proximate cause of the injuries to Luca Vaia.

The defendants deny that they did any of the things claimed by the plaintiff, deny that they were negligent in doing any of the things claimed by the plaintiff and deny that any claimed act or omission on the part of the defendants was a proximate cause of the claimed injuries to Luca Vaia.

The defendants further deny that Luca Vaia was injured or sustained damages to the extent claimed.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

B21.02.01 Burden of Proof on the Issues—Negligence—One Plaintiff and Two or More Defendants

The plaintiff has the burden of proving each of the following propositions as to each defendant:

First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that Luca Vaia was injured;

Third, that the negligence of the defendant was a proximate cause of the injury to Luca Vaia.

You are to consider these propositions as to each defendant separately.

If you find from your consideration of all the evidence that any of these propositions has not been proved as to any one or more or all of the defendants, then your verdict should be for that defendant or those defendants.

On the other hand, if you find from your consideration of all the evidence that all of these propositions have been proved as to any one or more or all of the defendants, then your verdict should be for the plaintiff as to that defendant or those defendants.

30.01 et seq Damage Instructions, Measure of Damages

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate Luca Vaia for any of the following elements of damages proved by the evidence to have resulted from the negligence of any defendant, taking into consideration the nature, extent and duration of the injury.

The disfigurement resulting from the injury.

Loss of a Normal Life experienced and reasonably certain to be experienced in the future.

Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.

The reasonable expense of necessary medical care, treatment and services received and the present cash value of the reasonable expenses of medical care, treatment and services reasonably certain to be received in the future.

The present cash value of earnings reasonably certain to be lost in the future.

The present cash value of caretaking expense reasonably certain to be incurred in the future.

Diminished life expectancy as a result of this occurrence.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

30.04.02 Loss of a Normal Life—Definition

When I use the expression “loss of a normal life”, I mean the temporary or

permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life.

31.09 Action Personal Representative/Modified for a Minor

The plaintiff, The Northern Trust Company, brings this action in a representative capacity by reason of being the guardian of Luca Vaia, a minor.

However, Luca Vaia is the real party in interest in this lawsuit, and in that sense, he is the real plaintiff whose damages you are to determine if you decide for The Northern Trust Company in its representative capacity as the guardian of Luca Vaia, a minor.

34.01 Damages Arising in the Future—Extent and Amount

If you find that the plaintiff is entitled to damages arising in the future because of future medical and caretaking expenses, or because of loss of future earnings, you must determine the amount of these damages which will arise in the future.

If these damages are of a continuing nature, you may consider how long they will continue. If these damages are permanent in nature, then in computing these damages you may consider how long Luca Vaia is likely to live.

With respect to a loss of future earnings, you may consider that some persons work all their lives and others do not; that a person’s earnings may remain the same or may increase or decrease in the future.

34.02 Damages Arising in the Future—Discount to Present Cash Value

In computing the damages arising in the future because of future medical and caretaking expenses or because of the loss of future earnings, you must determine their present cash value.

“Present cash value” means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the expenses and earnings at the time in the future when the expenses must be paid or the earnings would have been received.

Damages for pain and suffering, loss of a normal life and disfigurement are not reduced to present cash value.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a defendant on the question of liability, you will have no occasion to consider the question of damages as to that defendant.

41.03 Two or More Defendants

The rights of the defendants, Dr. Jonathan Muraskas, Dr. Khaled Hilal, and Terri Russell RN, NNP, are separate and distinct. Each is entitled to a fair consideration of his own defense and you will decide each defendant’s case separately as if it were a separate lawsuit. Each defendant’s case must be governed by the instructions applicable to that case.

50.01 Both Principal and Agent Sued—No Issue as to Agency

The defendants are sued as principal and agent. The defendants, Loyola University Physician Foundation and Loyola University Medical Center are the principals and the defendants, Dr. Jonathan Muraskas, Dr. Khaled Hilal, and Terri Russell, R.N., NNP., are the agents.

If you find that the defendant, Dr. Jonathan Muraskus, is liable, then you must find that the defendant, Loyola University Physician Foundation, is also liable. However, if you find that the Defendant, Dr. Jonathan Muraskus is not liable, then you must find that Loyola University Physician Foundation is also not liable.

If you find that either of the defendants, Dr. Khaled Hilal or Terri Russell, R.N., NNP, are liable, then you must find that the defendant, Loyola University Medical Center, is also liable. However, if you find that both of the Defendants, Dr. Khaled Hilal and Terri Russell, RN NNP are not liable, then you must find that Loyola University Medical Center is also not liable.

105.01 Duty of a Non–Specialist Professional—Professional Negligence [General – Combined]

“Professional Negligence” by a Neonatologist is the failure to do something that a

reasonably careful Neonatologist would do, or the doing of something that a reasonably careful Neonatologist would not do, under circumstances similar to those shown by the evidence.

“Professional Negligence” by a Neonatalogy Fellow is the failure to do

something that a reasonably careful Neonatalogy Fellow would do, or the doing of something that a reasonably careful Neonatalogy Fellow would not do, under circumstances similar to those shown by the evidence.

“Professional Negligence” by a Neonatal Nurse Practitioner is the failure to do

something that a reasonably careful Neonatal Nurse Practitioner would do, or the doing of something that a reasonably careful Neonatal Nurse Practitioner would not do, under circumstances similar to those shown by the evidence.

The phrase “deviation from or violation of the standard of care” means the same thing as “professional negligence.”

To determine what the standard of care required in this case, you must rely upon the opinion testimony from qualified witnesses in their respective fields. You must not attempt to determine this question from any personal knowledge you have.

The law does not say how a reasonably careful Neonatologist or Neonatalogy Fellow or Neonatal Nurse Practitioner would act under these circumstances. That is for you to decide based upon opinion testimony from qualified witnesses.

B45.01 – FORMS OF VERDICT

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The Plaintiff in this case is: Luca Vaia, a minor, by The Northern Trust Company as Guardian of his Estate.

The Defendants in this case are: Dr. Jonathan Muraskus, Loyola University Physician Foundation, Dr. Khaled Hilal, Terri Russell, R.N.,NNP, and Loyola University Medical Center.

If you find for the Plaintiff and against one or more of the Defendants, then you should use Verdict Form A.

If you find for all of the Defendants and against the Plaintiff, then you should use Verdict Form B.

VERDICT FORM A

We, the jury, find for Luca Vaia, a minor, by The Northern Trust Company as Guardian of his Estate, and against the following Defendant or Defendants.

Dr. Jonathan Muraskas and

Loyola University Physician Foundation YES _______ NO ______

Dr. Khaled Hilal and

Loyola University Medical Center YES _______ NO ______

Terri Russell, R.N., NNP, and

Loyola University Medical Center YES _______ NO ______

We assess the damages in the sum of $_________________________________, itemized as follows:

The disfigurement resulting from the injury. $_________________

Loss of a Normal Life experienced and

reasonably certain to be experienced in the future. $_________________

Pain and suffering experienced and reasonably certain

to be experienced in the future as a result of the injuries. $_________________

The reasonable expense of necessary

medical care, treatment and services received. $_________________

The present cash value of reasonable expenses of medical

care, treatment and services reasonably certain to be received

in the future. $_________________

The present cash value of earnings

reasonably certain to be lost in the future. $_________________

The present cash value of caretaking expense

reasonably certain to be incurred in the future. $_________________

Diminished life expectancy as a result of this occurrence. $_________________

[Signature Lines ]

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(Foreperson

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VERDICT FORM B

We, the jury, find in favor of all of the defendants and against the Plaintiff.

[Signature Lines ]

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(Foreperson

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Non-IPI Dillon v. Evanston 199 Ill 2d 483

To compute damage for increased risk of future loss of life expectancy and harm only, you must multiply the total compensation to which Luca Vaia would be entitled if a shortened life expectancy were certain to occur by the proven probability that the shortened life expectancy will in fact occur.

The plaintiff claims that Luca Vaia has suffered an increased risk of a decreased life expectancy as a result of the defendants’ negligence. The plaintiff is entitled to recover damages for harm to Luca Vaia resulting from a failure to exercise reasonable care. If the failure to exercise reasonable care increases the risk that such harm will occur in the future, the plaintiff is entitled to compensation for the increased risk.

In order to award this element of damages, you must find a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm. The increased risk must have a basis in the evidence. Your verdict must not be based on speculation. The plaintiff is entitled to compensation to the extent that the future harm is likely to occur as measured by multiplying the total compensation to which the plaintiff would be entitled if the harm in question were certain to occur by the proven probability that the harm in question will in fact occur.