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Clayton v. County of Cook12/11/2003
UNPUBLISHED
Defendant, the County of Cook, doing business as Cook County Hospital (Cook County), appeals from a retrial in which a $5.3 million judgment was entered on a jury verdict in favor of plaintiff, Darlene Clayton, special administrator of the estate of Richlyn Cork. The first trial had resulted in a verdict for defendant. Plaintiff appealed and this court reversed the judgment, based upon both defense counsel's improper argument and discovery violations under Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)). See Clayton v. County of Cook, No. 1-97-1825 (1999) (unpublished order under Supreme Court Rule 23). Following retrial, defendant's posttrial motion was denied.
Defendant appeals, arguing that the circuit court abused its discretion by: (1) allowing new opinions from plaintiff's expert witness in violation of Rule 213(g); (2) allowing evidence of the treating physician's failure to insert an arterial blood gas (ABG) line into Cork; (3) barring any evidence regarding the circumstances of Cork's initial injury; (4) allowing Dr. Robert Kirschner, a Cook County assistant medical examiner, to testify with respect to opinions that allegedly were outside the scope of his medical expertise; (5) refusing to instruct the jury on sole proximate cause and allowing damages based on Cork's habit of industry; and (6) denying defendant's motion for a new trial based on the conduct of plaintiff's counsel, including the injection of personal beliefs in closing argument, argument of facts not in evidence and violations of rulings on motions in limine.
For the reasons that follow, we reverse and remand for a third trial.
BACKGROUND
On March 12, 1991, plaintiff, Cork's mother, found Cork, then 12 years old, in her bedroom lying unconscious with a cord wrapped around her neck. The cord was attached to the closet door. Cork was unable to breathe on her own, was unresponsive and had ligature marks on her neck. Cork first was transported by ambulance to St. Francis Hospital (St. Francis) in Evanston, where she was intubated, which required the placement of a tube through her nose and back of her throat into the windpipe, or trachea, for attachment to a mechanical ventilator to assist in breathing. She was transferred to Cook County later that evening.
During the first few days of her hospitalization at Cook County, Cork remained intubated and comatose. She developed several complications, including acute respiratory distress syndrome (ARDS), in which the lining of the lungs leaks, filling the lung sacs with fluid. ARDS also causes scab-like material to fill up the lung sacs, making it difficult to keep blood oxygenated and to remove carbon dioxide. In addition, Cork developed two types of pneumonia and empyema, an infection inside or outside the lungs characterized by pockets of pus. A lung with chronic empyema is at risk of collapse, requiring surgery. Due to Cork's ARDS and empyema, her left lung was markedly "stiff" or adherent to the chest wall.
In light of her condition, Cork remained attached to a mechanical ventilator to the extent that a tracheostomy was required. A tracheostomy is a surgical procedure to open the trachea and also refers to the formation of the opening or the opening itself. Repeated efforts were made to remove the secretions from Cork's lungs by pounding on her chest and suctioning out the material through the endotracheal tube, which was replaced gradually by smaller tubes until Cork was able to breathe on her own. In addition, Cork was given two different courses of antibiotics to treat her pneumonia.
On April 27, 1991, Cork was discharged from Cook County in stable condition, but with residu
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