Compensation for pain to unconscious victim upheld by court.

The Illinois Supreme Court affirmed recently that compensation for pain and suffering is appropriate when a victim fails to regain consciousness after an injury. (Holston v. Sisters of the Third Order of St. Francis, No. 75984, 1995 WL 232637 (Ill. Apr. 20, 1995).)

The husband and children of a young woman who died as a result of medical negligence sued St. Anthony's Medical Center, which is owned and operated by an order of nuns. A jury awarded the plaintiffs a large sum for wrongful death and for the woman's pain, suffering, disability, and disfigurement. The appellate court affirmed the verdict, but St. Anthony's argued on appeal that recovery for pain, suffering, disability, and disfigurement was improper because the woman was unconscious during emergency surgery and did not regain consciousness. (David Bailey, Verdict for Pain Upheld Despite Unconsciousness, Chi. Daily L. B., Apr. 20, 1995, at 13.)

Theodora Holston, a 29-year-old nurse, chose to undergo elective gastric bypass surgery to improve her health and appearance by reducing her weight. But a catheter, inserted in her chest by an anesthesiologist to monitor fluids and blood pressure, pierced the lining of her heart and, undetected, steadily deposited fluid from an IV into Holston's pericardial sac during the period she was in post-operative care. The accumulating fluid put increasing pressure on her heart until it caused cardiac arrest.

The medical term for accumulation of fluid in the pericardial sac is cardiac tamponade. This condition can be reversed if detected early, simply by inserting a hypodermic needle into the sac and withdrawing the fluid. A key issue at trial was whether St. Anthony's nursing staff should have detected Holston's deteriorating condition and taken action before it was too late.

An attending nurse, who became concerned about Holston's steadily increasing pulse rate, repeatedly asked the supervising nurse to examine Holston and call her treating physician. The attending nurse stated her belief that Holston was tamponading, but the supervisor took no action for two crucial hours.

When emergency surgery began, it was first misdirected toward detecting internal bleeding. During the surgery, Holston's heart stopped beating for several minutes, and the surgeon discovered that her pericardial sac was full of fluid. Holston suffered brain damage and lapsed into a coma until she died a week later.

The defense argued that most or all of the pain she felt after her abdominal surgery was the expected discomfort of elective surgery, and thus was not compensable as being caused by negligence. After Holston lost consciousness, according to the defendant, she could feel no further pain. Similarly, she was unable to appreciate her diminished brain functioning and disfigurement.

Justice Mary Ann McMorrow, writing for the state supreme court, reasoned that although Holston would not have felt the pain of the emergency surgery, "the jury was not required to disregard the other, ample evidence of Holston's pain and suffering. The patient had a misplaced catheter piercing her heart. She suffered an accelerating heart rate and dropping blood pressure as a direct result of the fluids leaking into her pericardial sac. The jury could infer that the cardiac tamponade aggravated her pain and suffering."

"This is the clearest expression to date that a victim does not have to have awareness for recovery for pain, suffering, and disfigurement," said attorney Albert Hofeld of Chicago, who represented Holston's family. "She lived her life for these children [who were age 8 and 12 at the time of the operation], and her loss was of great consequence to them."