Cook County Jury Ties Hospital To ER Doctor's Delay In Securing An Airway
After trial: The hospital and Dr. Marshall appealed the $4.7 million jury verdict on separate grounds: the hospital argued it could not be held liable through the nurse's conduct or Marshall's independent-contractor status, and Marshall argued he was entitled to a new trial over the use of a medical treatise at trial. The Illinois Appellate Court, First District, rejected both arguments and affirmed the verdict in full on December 31, 2015 (2015 IL App (1st) 141788, consolidated appeal Nos. 1-14-1788 and 1-14-2706, from Cook County case No. 08-L-5238), denying rehearing on January 28, 2016. No further reduction is documented. The sources reviewed do not confirm whether the defendants sought review by the Illinois Supreme Court or the date the judgment was paid.
Won by Hurley McKenna & Mertz, P.C..
A Cook County jury awarded $4.7 million to the family of Georgia Tagalos, a 49-year-old woman who suffered fatal brain damage after emergency room staff at St. James Hospital of Olympia Fields could not secure her airway during a severe asthma attack. The jury found the hospital and its attending physician, Dr. Perry Marshall, liable, while clearing a resident physician of wrongdoing. The Illinois Appellate Court, First District, affirmed the verdict in full in 2015, holding the hospital vicariously liable for Marshall's conduct because he was the hospital's apparent agent in the eyes of a patient who came to its emergency room for general care.
What happened
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.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.CBS Chicago (Nov. 27, 2013): reports the $4.7 million jury verdict against St. James Hospital of Olympia Fields and Dr. Perry Marshall, names plaintiff Ted Fragogiannis and decedent Georgia Tagalos, confirms Dr. Julie Mills was cleared, and names Mark McKenna as counsel for the family.
- 2.Illinois Appellate Court, Fragogiannis v. Sisters of St. Francis Health Services, Inc., 2015 IL App (1st) 141788 (filed Dec. 31, 2015; rehearing denied Jan. 28, 2016): the full opinion, source for the minute-by-minute intubation timeline, the apparent-agency holding, the affirmance, and naming Christopher T. Hurley and Mark R. McKenna of Hurley McKenna & Mertz as counsel for appellee.
- 3.Robert Kreisman, Chicago Medical Malpractice Attorney Blog (Feb. 19, 2016): commentary by an unrelated Chicago plaintiffs' firm, corroborating the $4.7 million verdict, the intubation timeline, and the appellate court's rejection of both defendants' arguments. Corroboration only, not the attribution source.
More proven verdicts from Hurley McKenna & Mertz, P.C.
All Hurley McKenna & Mertz, P.C. proven verdicts →A Cook County jury awarded $41,149,942 to Craig Pierce, a former Bushnell, Illinois lawyer, and his wife Susan after finding that OSF HealthCare, Fresenius Medical Care of Illinois, RenalCare Associates, and Dr. Sudha Cherukuri failed to manage his Coumadin therapy, leading to a massive stroke in 2016. The firm reports it as the largest stroke-related verdict in Illinois history.
Quentin Ravizza, a tow truck driver for District Recovery, Inc., was inspecting the engine of a 1997 Kenworth T800 tow truck in Summit, Illinois, on January 23, 2012, when a gust of wind estimated at 35 miles per hour slammed the truck's hood shut on his head. He suffered a fractured skull and the loss of his right eye. A Cook County jury found that PACCAR, Inc., the truck's manufacturer, had negligently designed and manufactured the truck without an adequate hood blowback safety system, and that District Rebuilders, Inc., the company that serviced the truck, had failed to maintain or replace the missing safety cable and hook. The jury awarded $10 million in compensatory damages against both defendants and $10 million in punitive damages against PACCAR alone, a $20 million verdict, allocating 70 percent fault to PACCAR, 25 percent to Rebuilders and 5 percent to Ravizza. The trial court later reduced the compensatory award against PACCAR to $9.5 million, and the Illinois Appellate Court affirmed that figure but vacated the punitive damages, finding no proof that the specific safety device blamed for the design defect was actually on the truck when Ravizza was hurt.
Related medical malpractice verdicts
A Utah judge entered a $951 million default judgment against Steward Health Care after newly trained nurses, an excessive Pitocin drip, and a delayed C-section at Jordan Valley Medical Center left a newborn permanently brain damaged.
A Gainesville jury awarded $900 million, including $700 million in punitive damages, to stroke survivor Joseph Webb over neglect at the University Place Care and Rehabilitation Center, in a Wilkes & McHugh case tried against defaulted Trans Healthcare entities with no defense present, but Florida's First District Court of Appeal reversed the judgment in 2013 because the trial court had refused to let a defense lawyer appear, and the money was never collected; the estate's claim was later resolved for a small share of a multi-estate bankruptcy settlement.
A Clark County jury ordered Health Plan of Nevada and Sierra Health Services to pay $524 million after finding the UnitedHealth Group subsidiaries negligently credentialed a gastroenterologist whose unsafe injection practices at his Las Vegas endoscopy clinics caused the largest medically caused hepatitis C outbreak in American history.
Georgia Hayes, a Kansas City area ovarian cancer patient, sued pharmacist Robert Courtney after learning he had diluted the chemotherapy drugs used in her treatment. A Jackson County jury found Courtney liable and awarded Hayes $225,571,439 in compensatory damages and $2 billion in punitive damages, the first of hundreds of similar suits against Courtney to reach trial. The trial judge later found the award excessive and cut it by remittitur to $330,071,439, and that reduced judgment stood. Hayes herself and the case reporter covering the verdict both said she was unlikely to ever collect a significant portion of it.