Cook County Jury Ties Hospital To ER Doctor's Delay In Securing An Airway

On July 9, 2006, Ted Fragogiannis was driving his mother, Georgia Tagalos, home from a visit to a friend in Bourbonnais, Illinois, when she began wheezing and gasping for air. Tagalos, a longtime asthma sufferer, used two inhalers without relief and went into respiratory distress. Fragogiannis called 911, and paramedics took her to the nearest hospital, St. James Hospital of Olympia Fields, part of Sisters of St. Francis Health Services.

Tagalos arrived at the emergency room at 1:45 p.m. She could no longer speak but was still responsive. A nurse summoned Dr. Perry Marshall, the attending ER physician, who directed a fourth-year emergency medicine resident, Dr. Julie Mills, to evaluate her for intubation. At 1:56 p.m., eleven minutes after arrival and while Mills was preparing to intubate, Tagalos became unresponsive.

Mills's first intubation attempt caused Tagalos to vomit, blocking the view needed to place the tube. Marshall called in an anesthesiologist. After the vomit was suctioned, a second attempt failed five minutes later, at 2:01 p.m. Marshall then tried himself, and the anesthesiologist and another attending physician made three or four more attempts. All failed. Marshall ordered a cricothyrotomy, a surgical incision into the trachea, which finally established an airway between 2:07 and 2:10 p.m., roughly twenty five minutes after Tagalos reached the hospital. By then she had suffered cerebral hypoxia, a complete loss of oxygen to the brain. She was taken off life support and died three days later.

Fragogiannis, as special administrator of his mother's estate, sued Marshall and the hospital for medical malpractice and wrongful death. Mills was also named but was cleared of wrongdoing at trial. Before Judge Lorna Propes in the Circuit Court of Cook County, plaintiff's expert Dr. Richard Sobel testified that Marshall and the hospital deviated from the standard of care by waiting too long to attempt intubation, failing to sedate or properly oxygenate Tagalos before each attempt, and failing to move to a cricothyrotomy after the first failed intubation instead of after five more tries. After a seven day trial in November 2013, the jury returned a general verdict against the hospital and Marshall of $4.7 million.

On appeal, the hospital argued it could not be held liable for the conduct of the nurse who greeted Tagalos, and that Marshall, as an independent contractor, was not its employee or agent. The Illinois Appellate Court, First District, agreed there was no evidence the nurse breached her duties, but held the hospital liable anyway under the doctrine of apparent agency: Tagalos went to the hospital's emergency room seeking general emergency care, did not choose Marshall as her physician, and had no way of knowing he was not a hospital employee. Marshall separately argued for a new trial, claiming plaintiff's counsel improperly used a medical textbook, the 'Manual of Emergency Airway Management,' to cross-examine the defense's expert witnesses. The court rejected that argument too, finding the book was properly used to impeach the defense experts and that any irregularities in its use did not prejudice the outcome.

On December 31, 2015, the appellate court affirmed the $4.7 million verdict in full. The hospital's petition for rehearing was denied on January 28, 2016, and a modified opinion issued days later left the judgment unchanged.