Appellate Court of Illinois, First District affirmed a $45.3 million damages and $2.8 million prejudgment interest award in a medical malpractice action against Advocate Health and Hospital Corporation and emergency room physician Dr. Michael Soo-Young Joo.

The Court affirmed that the jury needed to make a unanimous decision that Dr. Joo was negligent but did not need to unanimous as to which one of the possible acts constituted the negligence.

The Court also upheld the constitutionality of section 2-1303(c) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1303(c) in granting prejudgment interest to the Plaintiff.

Award for Damages
Prejudgment Interest

Factual Background

Steven Butts (30) fell from a second-floor balcony and suffered facial injuries, including bilateral fractures of his jaw, and complained of a headache. However, he was walking, talking and breathing without difficulty. His mother, Gail Galich, drove him to Advocate Trinity Hospital’s emergency room where Dr. Michael Soo-Young Joo examined him and observed a missing tooth, a lacerated chin, and bleeding from the face. Dr. Joo’s exam was limited and believing that Butts may have life-threatening neck and back injuries, Dr. Joo decided to transfer him to an affiliated hospital, Advocate Christ Medical Center, a level-one trauma hospital. Butts consented to being intubated to prevent his airway from destablizing during the ambulance transfer. Dr. Joo administered paralyzing medicine before attempting to intubate Butts. He could not breathe on his own hereon. In the next 15 minutes, Butts went into pulseless electrical activity and cardiac arrest and he had to be placed on a ventilator and transferred to the University of Chicago Medical Center. Butts got permanent brain damage, requires 24 hour nursing care and now resides in a nursing home.

Galich sued claiming Dr. Joo, and Advocate Hospital vicariously, were negligent and Butts suffered oxygen deprivation and catastrophic brain injury. Specifically, Galich alleged Dr. Joo was negligent in:

  1. attempting a rapid sequence intubation on Butts
  2. failing to consult anesthesia before attempting to intubate
  3. positioning an endotracheal tube in Butts’s esophagus
  4. failing to discover that the endotracheal tube was placed in his esophagus
  5. failing to check the endotracheal tube placement with an X-ray
  6. failing to check endotracheal tube placement with a monitoring device, and
  7. failing to listen to breath sounds after positioning the endotracheal tube.

The Plaintiff’s Expert Witnesses

Dr. John Downs, Anaesthesiology and Critical Care Expert Witness

Opined that Dr. Joo should have examined Butts’s airway before administering the paralytic and sedative medications. He acknowledged that Dr. Joo could not thoroughly examine Butts’s airway due to his inability to open his mouth without pain. Still, Dr. Downs testified that the standard of care required giving Butts morphine, fentanyl, or other pain-relieving medication before administering paralyzing drugs, so he could open his mouth to ensure his airway was clear. Dr. Downs also testified that placing the endotracheal tube into Butts’s esophagus alone was not a deviation from the standard of care. Dr. Joo’s negligence, however, was his failure to recognize his mistake, remove the tube, and put it into Butts’s airway. Regardless of misplacing the endotracheal tube, according to Dr. Downs, Dr. Joo violated the standard of care by giving Butts inadequate oxygen after administering the paralyzing and sedative medications. Dr. Downs opined Dr. Joo’s negligence in depriving Butts of sufficient oxygen was the sole cause of his brain damage.

Dr. Christopher Baugh, M.D., Emergency Medicine Physician

Opined that Dr. Joo violated the standard of care by:

  1. failing to examine Butts’s airway before trying to intubate him,
  2. failing to place the endotracheal tube in the correct place, and
  3. failing to recognize sooner that the endotracheal tube had gone into the esophagus and not the airway.

Dr. Baugh also opined that Dr. Joo violated the standard of care by giving Butts insufficient oxygen while he was sedated, which, after a prolonged period, caused permanent brain damage.

The Defendants’ Expert Witnesses

Dr. Edward Ward, Emergency Medicine Expert

He stated that Dr. Joo’s decision to attempt intubation on Butts without immediate assistance was appropriate and met the standard of care. Despite blood obscuring the view of Butts’s airway, Dr. Joo’s actions were deemed correct when he inserted an LMA and sought anesthesia’s help after failing to intubate twice. Dr. Ward contested the claim that Dr. Joo misplaced an endotracheal tube in Butts’s esophagus, arguing it would be illogical for Dr. Joo to seek help if the patient had been successfully intubated.

Dr. Asokumar Buvanendran, Anesthesiology Expert Witness

Anesthesiology expert Dr. Asokumar Buvanendran stated that Dr. Joo adhered to the standard of care. He did so by seeking help from anesthesiology after his attempts to intubate Butts were unsuccessful and by using an LMA to provide oxygen to Butts during the wait.

Dr. Joel Meyer, Neuroradiology Expert

Neuroradiology expert Dr. Joel Meyer testified that under Dr. Joo’s care, Butts did not suffer a hypoxic-ischemic brain injury, which occurs from inadequate blood flow or oxygen leading to brain tissue death. Reviewing MRI and CT scans from July 21 and 28, 2019, at the University of Chicago Medical Center, Dr. Meyer observed that the July 21 scans were normal, showing no hypoxic brain injury signs. If such an injury had occurred in the emergency room, it would have been detected then. The July 28 scans, however, revealed significant brain swelling, indicative of toxic leukoencephalopathy, not hypoxic-ischemic damage. Dr. Meyer deduced that Butts’s brain injury developed between these dates at the hospital.

The Jury’s Verdict

The jury unanimously agreed that Dr. Joo’s negligence caused Butts’s brain injury and awarded $45.3 million in damages and $2.8 million in prejudgment interest. Advocate appealed but the appellate court affirmed the verdict and the judgment of the trial court.

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