Iaccino v. Anderson , 406 Ill. App. 3d 397 ( 2010 )

FIRST DIVISION
December 20, 2010
No. 1-07-0207
JONATHON IACCINO, a Minor, by His ) Appeal from the
Parents and Next Friends, JOHN IACCINO ) Circuit Court of
and ELISA IACCINO, and JOHN IACCINO ) Cook County, Law
and ELISA IACCINO, Individually, ) Division.
)
Plaintiffs-Appellants, )
)
v. ) No. 00 L 42329
)
LORI L. ANDERSON, LINDA )
R. GIBSON, and WOMANCARE, P.C., )
a Corporation, ) Honorable
) Daniel M. Locallo,
Defendants-Appellees. ) Judge Presiding.
PRESIDING JUSTICE HALL delivered the opinion of the court:
This case concerns an action for medical malpractice brought
by plaintiffs John Iaccino and Elisa Iaccino, individually and as
parents and next friends of the minor plaintiff, Jonathon
Iaccino, against defendants Dr. Lori L. Anderson, Dr. Linda R.
Gibson, Womancare, P.C. (Womancare), and Northwest Community
Hospital1 for injuries Jonathon sustained during labor as a
result of oxygen deprivation (hypoxia).
Plaintiffs maintained that Dr. Anderson negligently
administered the drug Pitocin to Mrs. Iaccino during labor,
causing hyperstimulation of her uterus (tachysystole) resulting
1
The hospital settled prior to the first trial and is not
a party to this appeal. The first trial ended in a mistrial.
No. 1-07-0207
in Jonathon being deprived of oxygen.2 Plaintiffs contend Dr.
Anderson deviated from the applicable standard of care by
negligently monitoring Jonathon's fetal heart rate,3 and as a
2
Pitocin is a synthetic version of the hormone oxytocin,
which is used to induce labor by stimulating uterine
contractions. See Northern Trust Co. v. Burandt & Armbrust, LLP,
403 Ill. App. 3d 260, 264, 933 N.E.2d 432 (2010); see also
Velazquez v. Portadin, 163 N.J. 677, 681, 751 A.2d 102, 105
(2000) ("Pitocin is a medication used to increase the intensity
and frequency of uterine contractions in women whose contractions
are insufficient to deliver the baby. If Pitocin causes the
contractions to occur too frequently or last too long, the baby
may be harmed because blood flow to the baby slows during
contractions. That condition is called hyperstimulation of the
uterus. When the uterus is hyperstimulated, the interval between
contractions is shortened and there is not enough time for the
baby to catch up on its oxygen needs before the start of another
contraction").
At trial, hyperstimulation of the uterus was defined as "a
persistent pattern of more than five contractions in ten minutes,
contractions lasting more than two minutes, or contractions of
normal duration occurring within one minute of each other."
3
Expert testimony established that during labor one of the
ways babies compensate for a lack of oxygen is to speed up their
heart rates.
-2-
No. 1-07-0207
result, failed to timely discontinue the use of Pitocin,
resulting in Jonathon's brain being deprived of oxygen during
labor and delivery.
Plaintiffs further claim that Dr. Anderson was negligent in
failing to recognize uterine hyperstimulation, failing to
recognize evidence of fetal intolerance to labor as allegedly
reflected on the external electronic fetal monitor (EFM)4 strip,
failing to recognize cephalopelvic disproportion (CPD),5 failing
to recognize arrest of descent into the birth canal, and failing
to recommend a cesarean section.
4
An electronic fetal monitor is a machine that produces a
printout or fetal monitoring strip to "continually assess the
fetal heart rate and the relationship of the fetal heart rate to
maternal contractions, and are continually analyzed to determine
whether there is fetal distress or stress upon the fetus caused
by a lack of oxygen to the fetus." Baglio v. St. John's Queens
Hospital, 303 A.D.2d 341, 342, 755 N.Y.S.2d 427, 428 (2003). An
external fetal monitor is essentially an ultrasound transmitter
affixed to the woman's abdomen that monitors the baby's heart
rate.
5
"Cephalopelvic disproportion," or CPD, is a " 'condition
in which the head of the fetus is abnormally large in relation to
the size of the mother's pelvis.' " Mendez v. United States, 732
F. Supp. 414, 426 n.15 (S.D.N.Y. 1990), quoting 1 J. Schmidt,
Attorney's Dictionary of Medicine and Word Finder C-99 (1986).
-3-
No. 1-07-0207
Plaintiffs contend Dr. Gibson was negligent in failing to
identify and respond to fetal intolerance to labor; failing to
maintain good quality electronic fetal monitoring; performing an
inadequate initial examination at 7:56 a.m.; improperly
disconnecting the internal fetal electrode while waiting for the
arrival of a surgical assistant to assist in performing the
cesarean section; and failing to perform a timely cesarean
section.
Defendants' theory of the case was that the proximate cause
of Jonathon's injury was an infection in the placenta that
traveled to the fetal brain, causing brain damage before any
alleged malpractice by defendants. The jury returned a general
verdict in favor of defendants and against plaintiffs.
Plaintiffs now appeal and seek a new trial.
For the reasons that follow, we affirm. Additional facts
are set forth as each issue is addressed.
ANALYSIS
Plaintiffs contend the trial court erred by allowing
defendants to cross-examine and impeach plaintiffs' expert
witness, Dr. Gary Blake, with a written medical report the doctor
prepared as part of plaintiffs' compliance with the pleading
requirements of section 2-622(a)(1) of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-622(a)(1) (West 2004)). Although
this was the third issue raised in plaintiffs' appellate brief,
we address it first because it involves a matter of first
-4-
No. 1-07-0207
impression before this court.
In 1985, the Illinois legislature enacted section 2-622 of
the Code in an effort to curtail frivolous medical malpractice
lawsuits and to eliminate such actions at the pleading stage
before the expenses of litigation mounted. DeLuna v. St.
Elizabeth's Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139 (1992);
B. Elward, The 1985 Illinois Medical Malpractice Reform Act: An
Overview and Analysis, 14 S. Ill. U. L.J. 27, 28 (1989).
Section 2-622(a)(1) requires the plaintiff (if proceeding
pro se) or his attorney to file an affidavit of merit with the
complaint stating that the affiant has consulted and reviewed the
facts of the case with a health care professional who, in a
written medical report -- after a review of the medical records
and other relevant material -- has determined that there is a
"reasonable and meritorious" cause for filing the action. 735
ILCS 5/2-622(a)(1) (West 2004). A copy of the medical report
must be attached to the affidavit and the report must clearly
identify the "plaintiff and the reasons for the reviewing health
professional's determination that a reasonable and meritorious
cause for the filing of the action exists." 735 ILCS 5/2-
622(a)(1) (West 2004); Moyer v. Southern Illinois Hospital
Service Corp., 327 Ill. App. 3d 889, 902, 764 N.E.2d 155 (2002).
In the instant case, the trial court permitted defense
counsel to impeach Dr. Blake with alleged inconsistencies between
some of the opinions contained in the doctor's written medical
-5-
No. 1-07-0207
report and his trial testimony. The question on review is,
assuming a proper foundation had been laid, whether the trial
court erred in allowing the doctor's written medical report to be
used as a prior inconsistent statement for impeachment purposes.
In a medical malpractice action, the plaintiff must
establish the standards of care against which the physician's
conduct is measured by the use of expert testimony. Kotvan v.
Kirk, 321 Ill. App. 3d 733, 741, 747 N.E.2d 1045 (2001). The
value of expert testimony depends upon the facts and reasons
which form the basis of the expert's opinion. In re Custody of
Brunken, 139 Ill. App. 3d 232, 239-40, 487 N.E.2d 397 (1985).
"The general rule is that an expert's testimony is to be
judged by the rules of weight and credibility applied to all
other witnesses." Hegener v. Board of Education, 208 Ill. App. 3d
701, 734, 567 N.E.2d 566 (1991). An appropriate method of
testing the credibility of a witness is to show that on a prior
occasion the witness made statements inconsistent with his or her
trial testimony. Sommese v. Mailing Brothers, Inc., 36 Ill. 2d
263, 268-69, 222 N.E.2d 468 (1966).
In order to be used for impeachment, a witness's prior
statement must be materially inconsistent with his trial
testimony. Thompson v. Abbott Laboratories, 193 Ill. App. 3d 188,
205, 549 N.E.2d 1295 (1990). Moreover, before a statement may be
admitted as a prior inconsistent statement, a proper foundation
must be laid. Central Steel & Wire Co. v. Coating Research Corp.,
-6-
No. 1-07-0207
53 Ill. App. 3d 943, 946, 369 N.E.2d 140 (1977).
The foundation is laid by directing the witness's attention
to the time, place and circumstances of the statement and its
substance, or in the case of a written instrument, by identifying
the signature. Boyce v. Risch, 276 Ill. App. 3d 274, 278, 657
N.E.2d 1145 (1995); Vancil v. Fletcher, 90 Ill. App. 2d 277, 283,
232 N.E.2d 789 (1967). The purpose of the foundation is to alert
the witness to the prior inconsistent statement in order to avoid
unfair surprise and to provide the witness with an opportunity to
deny, correct, or explain the statement. Boyce, 276 Ill. App. 3d
at 278. A trial court's decision to permit a prior statement to
be used for impeachment purposes will not be disturbed absent a
clear abuse of discretion. Van Steemburg v. General Aviation,
Inc., 243 Ill. App. 3d 299, 329, 611 N.E.2d 1144 (1993).
In this case, the trial court properly ruled in allowing
defense counsel to cross-examine and impeach Dr. Blake using
excerpts from his written medical report. In his written medical
report, Dr. Blake interpreted the decelerations that he saw on
the fetal monitor strip as "variable decelerations." At trial,
Dr. Blake changed his opinion and testified on direct examination
that he interpreted the decelerations as either "late
decelerations," or "variable decelerations with a late
component."
A proper foundation was laid for impeachment using Dr.
Blake's written medical report as a prior inconsistent statement
-7-
No. 1-07-0207
during cross-examination when the doctor changed his opinion once
more and testified that he interpreted the decelerations simply
as "late decelerations." Defense counsel impeached Dr. Blake
with the inconsistencies in the doctor's written medical report
and his trial testimony as it related to the doctor's
interpretation of the fetal heart decelerations on the fetal
monitor strip.
Plaintiffs argue that allowing an expert to be impeached
with his written medical report would unfairly handicap the
expert because the report is only a threshold opinion usually
prepared at a point before all of the facts are fully developed
in discovery. We must disagree.
Section 2-622 does not prescribe the form that a written
medical report must take and there is nothing in the statute that
prevents the author of such a report from qualifying his opinions
to make clear that they are preliminary opinions subject to
amendment or supplementation upon the acquisition of additional
information such as additional medical records or deposition
testimony. Therefore, allowing an expert doctor to be impeached
with his written medical report would not be unfair since the
doctor could explain that his report was prepared during the
early stages of discovery or he could attempt to explain any
inconsistencies between his report and his trial testimony. See
Cohen v. Dauphinee, 739 So. 2d 68, 77 (Fla. 1999) (Anstead, J.,
dissenting) (interpreting similar statute); see also Barnett v.
-8-
No. 1-07-0207
Hidalgo, 478 Mich. 151, 164, 732 N.W.2d 472, 480 (2007).
It would then be up to the jury to assess those explanations
in evaluating the credibility of the doctor's testimony. In some
cases, the jury may conclude that the doctor sufficiently
explained why his opinion had changed. In other cases, the jury
may conclude that a particular explanation was not credible. But
these are evaluations the jury should be entitled to make based
on all of the relevant and competent evidence. Cohen, 739 So. 2d
at 77 (Anstead, J., dissenting).
Allowing an expert to be cross-examined and impeached with
his written medical report serves to further the underlying
purpose of section 2-622 in screening out frivolous and
nonmeritorious medical malpractice lawsuits. The expert's
verified written medical report is the document that permits
medical malpractice litigation to be initiated in the first
place. Section 2-622(g) of the Code provides that a plaintiff's
failure to comply with the pleading requirements of section 2-
622(a)(1) shall be grounds for dismissal under section 2-619. 735
ILCS 5/2-622(g) (West 2004).
If the expert, in sworn testimony in the ensuing litigation,
testifies to something inconsistent with the opinions set forth
in his written medical report, then there may be legitimate
concern as to whether there was valid cause to initiate the
litigation in the first instance. See Cohen, 739 So. 2d at 76
(Anstead, J., dissenting). In addition, if a physician writing
-9-
No. 1-07-0207
such a report knows that he or she may be subject to cross-
examination concerning the opinions contained in the report, then
the physician will be more careful to make only those accusations
of medical malpractice that have a reasonably valid scientific
basis.
" 'The principal safeguard against errant expert testimony
is cross-examination.' " Leonardi v. Loyola University of
Chicago, 168 Ill. 2d 83, 104, 658 N.E.2d 450 (1995), quoting
Sears v. Rutishauser, 102 Ill. 2d 402, 407, 466 N.E.2d 210
(1984). And as Justice Anstead asked in delineating the public
policy underlying a statute similar to our section 2-622(a)(1) of
the Code, "what better way do courts have to ensure compliance
with this policy than by making it known that an expert's opinion
will not go unchecked or unchallenged at trial?" Cohen, 739 So.
2d at 76 (Anstead, J., dissenting).
The legislative policy underlying section 2-622 of the Code
favors the disclosure and evaluation of any material changes in
the trial testimony and opinions of an expert who provides a
written medical report pursuant to section 2-622 of the Code. If
an expert doctor's trial testimony is inconsistent with the
opinions contained in his written medical report, then it is
legitimate to raise that inconsistency before the jury. Cohen,
739 So. 2d at 77 (Anstead, J., dissenting).
In sum, we hold that an expert doctor's written medical
report prepared pursuant to section 2-622 of the Code may be used
-10-
No. 1-07-0207
against him as a prior inconsistent statement for impeachment
purposes.
Plaintiffs next contend the trial court erred by allowing
defense expert Dr. Franciosi to render causation opinions at
trial. Plaintiffs maintain the trial court erred in ruling that
the opinions were admissible because they had not been disclosed
during the doctor's discovery deposition or in his Rule 213(f)
(210 Ill. 2d R. 213(f)) interrogatory answers. We disagree.
Under Rule 213(f)(3), upon written interrogatory, each party
must disclose the subject matter, conclusions, opinions,
qualifications and reports of a witness who will offer opinion
testimony. Gee v. Treece, 365 Ill. App. 3d 1029, 1035, 851 N.E.2d
605 (2006). The purpose of the rule is to avoid surprise and
permit litigants to ascertain and rely upon the opinions of
experts retained by their adversaries. Brax v. Kennedy, 363 Ill.
App. 3d 343, 354, 841 N.E.2d 137 (2005).
Whether an opinion has been adequately disclosed under Rule
213 is a matter within the trial court's discretion. Lawler v.
MacDuff, 335 Ill. App. 3d 144, 147, 779 N.E.2d 311 (2002). A
trial court's ruling concerning admission of evidence pursuant to
Rule 213 will not be reversed absent an abuse of discretion.
Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537,
690 N.E.2d 143 (1998).
Dr. Franciosi is a pediatric pathologist. He was originally
retained by Northwest Community Hospital to review a pathology
-11-
No. 1-07-0207
report of the mother's placenta as well as pathology slides of
her placenta. After Dr. Franciosi completed his review, the
hospital submitted his opinions in its Rule 213 disclosure, which
included the following description of the doctor's anticipated
testimony:
"Dr. Franciosi will testify that, based on his review
of the *** slides, he sees evidence of inflammation
involving the placental membrane and disk. This
inflammation is evidence of a maternal reaction to bacteria
which was present in the amniotic fluid prior to Jonathon's
delivery and which caused inflammation 24 to 36 hours before
Jonathon's delivery. The bacterial organism which caused
the infection likely migrated from Mrs. Iaccino's vagina
and, ultimately, entered the amniotic sac. Once the
organism entered the amniotic sac, Mrs. Iaccino's body would
have reacted by producing polymorphonuclear leukocytes. In
the process of destroying the invading bacteria, such PMN's
produce enzymes, or cytokines, which are known to cause
placental vasospasm. Such placental vasospasm is known to
cause interference with the process of the placenta
providing oxygenated blood to the fetus. Dr. Franciosi is
expected to describe this process in greater detail at his
deposition and at trial.
Additionally, Dr. Franciosi will testify that, based on
his review of the above-mentioned records and pathology
-12-
No. 1-07-0207
slides, there is evidence of an intervillus thrombus within
the maternal intervillus space. Dr. Franciosi will testify
that the intervillus thrombus was likely present 48 hours
prior to Jonathon's delivery and that such intervillus
thrombi are also known to cause interference with the
transfer of oxygenated blood between mothers and fetuses.
Moreover, Dr. Franciosi will testify that there was a
large infarction present in the placenta which was present
at least 72 hours prior to Jonathon's delivery. Such
infarctions are also known to interfere with the placenta's
ability to supply oxygenated blood to a mother's fetus.
Also, Dr. Franciosi is expected to testify that there
is fibrin deposition in the placenta which was present 5 or
more days prior to Jonathon's delivery. Such fibrin
deposition is also known to interfere with the placenta's
function of transferring oxygenated blood to a mother's
fetus.
Dr. Franciosi will explain all of these processes in
greater detail at his deposition and at trial."
The hospital settled prior to the beginning of the first
trial, which subsequently ended in a mistrial. Defendants
adopted the hospital's disclosure of Dr. Franciosi's above
anticipated testimony as well as his discovery deposition.
At the second trial, which is the subject of this appeal,
defendants theorized that the effect of the cytokines along with
-13-
No. 1-07-0207
the other three pathologies Dr. Franciosi identified in the Rule
213 disclosure -- intervillus thrombus, infarction, and fibrin
deposition -- all combined to interfere with the placenta's
function of transferring oxygenated blood to Jonathon during
labor, resulting in him being born with metabolic acidosis.
Plaintiffs filed a pretrial motion in limine seeking to bar
Dr. Franciosi from opining that the three pathologies he
identified in the Rule 213 disclosure combined to cause
Jonathon's injury. Plaintiffs argued then, as they do now, that
in his Rule 213 disclosure and discovery deposition, Dr.
Franciosi never opined that Jonathon's brain injury was caused by
pathologies in the placenta. Plaintiffs contend the doctor's
statements and opinions contained in the Rule 213 disclosure and
discovery deposition are irrelevant because they failed to
establish a causal connection between the three pathologies in
the placenta and Jonathon's injury.
We find that the trial court did not abuse its discretion in
denying the motion in limine. In his discovery deposition, Dr.
Franciosi established a causal connection between the three
identified pathologies in the mother's placenta and Jonathon's
injury.
The record reveals that during his discovery deposition,
counsel for the hospital posed several hypothetical questions to
Dr. Franciosi. The doctor gave responses from which it could be
inferred that the three identified pathologies (or as counsel
-14-
No. 1-07-0207
referred to them, conditions), all combined to possibly cause the
medical condition complained of (metabolic acidosis), as shown by
the following colloquy:
"Q. I'm going to ask you a specific question, and I'd
like to have you answer the question that I ask
specifically. With regard to all of the conditions that you
listed, might or could these conditions exist in combination
in a maternal placenta wherein a child is delivered without
medical problems?
A. In my opinion, no.
Q. Is it possible, Doctor, that it can occur, that
these conditions could exist in a maternal placenta wherein
a child is born without medical problems?
[Plaintiffs' former counsel]: Objection, asked and answered.
A. In my opinion, no.
Q. Okay. So if I understand you correctly, Doctor,
it's your testimony to a reasonable degree of medical
certainty that the conditions which you've set forth in your
disclosure, Exhibit Number 2, can never exist in a maternal
placenta wherein a child is born without medical problems?
A. My --
[Plaintiffs' former counsel]: In combination?
A. In combination, yeah. In my opinion, these in
combination will not, you know, be in a, quote/unquote,
normal pregnancy."
-15-
No. 1-07-0207
Dr. Franciosi's responses to the hypothetical questions
posed by counsel, along with the doctor's Rule 213 disclosure,
constituted a professional opinion within a reasonable degree of
medical certainty from which the trier of fact could infer a
causal connection between the three pathologies (intervillus
thrombus, infarction, and fibrin deposition) and Jonathon being
born with metabolic acidosis.
An expert witness's answers to hypothetical questions are an
acceptable basis for his or her expert opinion. Simers v.
Bickers, 260 Ill. App. 3d 406, 412, 632 N.E.2d 219 (1994);
Granberry v. Carbondale Clinic, S.C., 285 Ill. App. 3d 54, 59-60,
672 N.E.2d 1296 (1996). Moreover, a physician may testify to
what might or could have caused an injury. Geers v. Brichta, 248
Ill. App. 3d 398, 407, 618 N.E.2d 531 (1993). "It remains for
the trier of fact to determine the facts and the inferences to be
drawn therefrom." Geers, 248 Ill. App. 3d at 407.
Plaintiffs next contend that Dr. Franciosi lacked personal
knowledge of the clinical facts necessary to give a competent
opinion as to the cause of Jonathon's injury. Plaintiffs
maintain that the doctor's lack of personal knowledge as to what
occurred during the labor and as to the nature of Jonathon's
injury rendered the doctor incompetent to give expert testimony
as to the cause of the injury. Again, plaintiffs' contentions
must be rejected.
An expert witness is permitted to state an opinion based on
-16-
No. 1-07-0207
facts not within his or her personal knowledge so long as those
facts are of a type reasonably relied upon by experts in the
particular field. J.L. Simmons Co. v. Firestone Tire & Rubber
Co., 108 Ill. 2d 106, 117, 483 N.E.2d 273 (1985); Hatfield v.
Sandoz-Wander, Inc., 124 Ill. App. 3d 780, 787, 464 N.E.2d 1105
(1984).
In the instant case, Dr. Franciosi based his testimony
primarily on the placental slides. He also considered various
medical records from Jonathon's admission to Northwest Community
Hospital. There is no suggestion in the record that these
sources of information are not the type reasonably relied upon by
pediatric pathologists to support their medical opinions.
Therefore, Dr. Franciosi was entitled to rely on the placental
slides and medical records in rendering his causation opinions.
Plaintiffs next contend they suffered prejudice from the
admission of Dr. Franciosi's causation opinions because they were
unable to effectively rebut these undisclosed opinions at trial.
Again, we must disagree.
As we previously determined, a review of the record shows
that Dr. Franciosi's causation opinions were disclosed. The
doctor's opinions as to the possible causes of Jonathon's
injuries were expressed in his timely disclosed discovery
deposition.
Moreover, the record shows that Dr. Franciosi's causation
opinions were rebutted by plaintiffs' expert witness, Dr. Michael
-17-
No. 1-07-0207
Kaufman. Dr. Kaufman, a board-certified anatomic pathologist,
opined to a reasonable degree of medical certainty that the three
pathologies identified by Dr. Franciosi (intervillus thrombus,
infarction, and fibrin deposition), were all consistent with a
normal, aging placenta and were not predictive of infection or
sepsis or diagnostic of a hypoxic environment to the fetus.
Plaintiffs next contend the trial court abused its
discretion by permitting defendants to cross-examine and impeach
plaintiffs' expert witnesses using medical literature without
first establishing the requisite foundation as to the
authoritativeness of that literature. We must reject this
contention as well.
It is well settled that the admission of evidence and the
scope of cross-examination of expert witnesses rests within the
sound discretion of the trial court, whose rulings will not be
disturbed absent an abuse of that discretion. See Stapleton v.
Moore, 403 Ill. App. 3d 147, 156, 932 N.E.2d 487 (2010); Tsoukas
v. Lapid, 315 Ill. App. 3d 372, 380, 733 N.E.2d 823 (2000).
An expert may be cross-examined with articles and treatises
he does not recognize, provided some other expert has testified
that the publications are authoritative. See Bowman v. University
of Chicago Hospitals, 366 Ill. App. 3d 577, 587-88, 852 N.E.2d
383 (2006); Stapleton, 403 Ill. App. 3d at 157-58; see also
Tsoukas, 315 Ill. App. 3d at 380 ("[i]t is not improper to allow
questioning to discover what potentially relevant information
-18-
No. 1-07-0207
plaintiff's expert may have failed to consider in reaching an
opinion"). In addition, an expert may be cross-examined with
respect to material he has reviewed, but upon which he did not
rely. Piano v. Davison, 157 Ill. App. 3d 649, 671-72, 510 N.E.2d
1066 (1987); Jager v. Libretti, 273 Ill. App. 3d 960, 962-63, 652
N.E.2d 1120 (1995).
In the instant case, plaintiffs took issue with three
medical articles: (1) an article authored by Dr. Yvonne Wu,
published in the Journal of the American Medical Association
(JAMA) on September 20, 2000; (2) an article authored by Dr.
Karin Nelson, published in JAMA on July 16, 1997; and (3) a
monograph published by the American College of Obstetricians and
Gynecologists (ACOG).
These articles had either been reviewed by plaintiffs'
expert witnesses prior to their cross-examination or the articles
were established to be authoritative by other expert witnesses
prior to cross-examination. Therefore, the trial court did not
err in permitting defendants to cross-examine and impeach
plaintiffs' expert witnesses using the medical literature in
question.
Plaintiffs next contend the trial court erred by allowing
defense expert Dr. Elias Chalhub to bolster his trial testimony
and credibility by referring to undisclosed medical literature in
violation of Supreme Court Rule 213. Plaintiffs maintain that in
his discovery deposition, Dr. Chalhub did not disclose any
-19-
No. 1-07-0207
medical literature as part of his opinion on causation and that,
therefore, the doctor's references at trial to medical literature
violated Supreme Court Rule 213. Again, we must disagree.
At his discovery deposition, when Dr. Chalhub was asked if
he was "relying on any specific literature" to support his
opinions, the doctor responded, "No, I mean, I think the
literature is fairly extensive concerning this case."
Plaintiffs' counsel then asked Dr. Chalhub if he was "going to
point to one particular article or set of articles as a specific
basis" of his opinions. The doctor responded, "No. I mean,
there are too many that are, you know, quite explicit about the
issues in this case."
When plaintiffs' counsel asked Dr. Chalhub if his opinions
were always "right" in relation to other experts, the doctor
responded that it was not a question of "right" or "wrong," but
rather that the "common denominator" was the medical literature
that the experts relied upon. Later in the deposition, counsel
asked Dr. Chalhub if he could cite any "recognized pediatric
neurology text that cites cytokines as a cause of brain damage."
The doctor responded by naming several medical texts.
As noted earlier, the purpose of Rule 213 is to prevent one
party from surprising his opponent with undisclosed testimony.
See Brax, 363 Ill. App. 3d at 354. In this case, Dr. Chalhub's
general references at trial to medical literature did not violate
Rule 213's disclosure requirements. Given Dr. Chalhub's
-20-
No. 1-07-0207
discovery deposition, plaintiffs knew early on that the doctor
believed that his causation opinions were supported by the latest
medical literature.
At trial, Dr. Chalhub testified that his opinions were
supported by the medical literature. He did not cite any
particular publication or article and he did not point to any
particular passage. The doctor only testified that his opinions
were supported by the medical literature in general. In this
regard, Dr. Chalhub's trial testimony concerning the medical
literature was consistent with his deposition testimony.
Since we have determined that defendants' use of the medical
literature in the cross-examination of plaintiffs' expert
witnesses was not improper, then it follows that reference to
this literature in defendants' closing argument was also not
improper. See, e.g., Mielke v. Condell Memorial Hospital, 124
Ill. App. 3d 42, 45, 463 N.E.2d 216 (1984) (attorney uses
exhibits to cross-examine expert witnesses and relies on the
exhibits in her closing argument).
Finally, we reject plaintiffs' contentions that the trial
court erred by refusing to admit the proffered testimony of nurse
Adrienne Mikkelsen and nurse Pamela Hibbs. The admission of
evidence is within the sound discretion of the trial court, whose
rulings will not be reversed absent an abuse of that discretion.
Gill v. Foster, 157 Ill. 2d 304, 312-13, 626 N.E.2d 190 (1993).
Plaintiffs maintain the trial court erred by refusing to
-21-
No. 1-07-0207
admit nurse Mikkelsen's proffered testimony that approximately an
hour before Jonathon's delivery by cesarean section, she made
three separate requests to defendant doctors to apply a fetal
scalp electrode to monitor the fetal heart rate more accurately.
A review of the record does not support this argument.
The record shows that nurse Mikkelsen's cross-examination
was briefly interrupted during trial and a meeting was held in
chambers to discuss the admission of the nurse's proffered
testimony. Plaintiffs' counsel took the position that the trial
court had not yet ruled on the matter in limine, but that the
parties had agreed to exclude the testimony.
When the trial court determined that the parties may not
have reached such an agreement, the court ruled that the
testimony could be admitted for purposes of explanation but "not
for purposes of addressing the decision making between a nurse
and doctor." Plaintiffs' counsel did not object to the ruling.
Thereafter, for reasons not explained by the record,
plaintiffs' counsel did not seek to introduce the testimony. A
party cannot complain of an alleged error to which he consented.
McMath v. Katholi, 191 Ill. 2d 251, 255, 730 N.E.2d 1 (2000).
Plaintiffs finally contend the trial court abused its
discretion by barring nurse Hibbs from testifying as to what she
believed the electronic fetal monitor strip indicated about
Jonathon's condition. Nurse Hibbs's edited evidence deposition
was used at trial in lieu of her testimony.
-22-
No. 1-07-0207
Nurse Hibbs testified at length as to the scientific
terminology associated with interpreting fetal monitoring strips,
defining such terms as baseline fetal heart rate, types of
variability (short and long term), accelerations, types of
decelerations (early, variable, and late), uteroplacenta
insufficiency, fetal reserve, hyperstimulation, and nonreassuring
fetal heart rate pattern.
Nurse Hibbs was also allowed to give testimony regarding her
interpretation of various sections of the fetal monitoring
strips. Nurse Hibbs testified that the fetal monitoring strips
were "reassuring" during the first hour after the mother was
admitted to the hospital.
Plaintiffs' counsel then jumped ahead to 5 a.m. Nurse Hibbs
testified that from 5 a.m. to 6:30 a.m., the fetal monitoring
strips showed some small decelerations as well as some changes in
the baseline fetal heart rate from "the 140s, 150 to 120s." The
nurse testified that the strips were neither "reassuring" nor
"nonreassuring" but, rather, called for continued monitoring.
Nurse Hibbs testified that she could not interpret the fetal
heart rate tracings taken between 7 a.m. and 8:13 a.m. She
testified that the fetal monitoring strips taken from 8:13 a.m.
to 8:45 a.m. (when the monitor was turned off), showed some
decelerations, but that she could not determine the type of
deceleration. The baby was delivered by cesarean section at
approximately 9:10 a.m.
-23-
No. 1-07-0207
Plaintiffs contend that the trial court's rulings required
them to edit out those portions of nurse Hibbs's evidence
deposition where she gave testimony as to what the fetal monitor
strip indicated about Jonathon's condition. Plaintiffs, however,
have failed to provide citation to the record showing exactly
what portions of nurse Hibbs's evidence deposition were edited
out prior to trial. As result, the record on appeal is
inadequate to review this issue. Appellants have the burden of
presenting this court with an adequate record for review.
Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 546-47, 662 N.E.2d
1248 (1996).
What the record does show is that the trial court stated
that nurse Hibbs could describe and interpret what she observed
on the fetal monitoring strips provided she did not offer any
opinions as to whether the strips indicated that the baby should
have been delivered earlier due to fetal distress or fetal
intolerance to labor. The trial court, citing Sullivan v. Edward
Hospital, 209 Ill. 2d 100, 806 N.E.2d 645 (2004), held that such
issues were outside nurse Hibbs's expertise and should be
determined by a medical physician. The trial court did not err
in this regard.
In Illinois, a physician has a duty to exercise a reasonable
amount of care and skill as is ordinarily possessed by members of
his profession. Magana v. Elie, 108 Ill. App. 3d 1028, 1034, 439
N.E.2d 1319 (1982). The general rule is that when the exercise
-24-
No. 1-07-0207
of the proper degree of care and skill of a physician is at
issue, only experts in the profession can testify and establish
the standard of care and skill required. See Smith v. Pavlovich,
394 Ill. App. 3d 458, 462, 914 N.E.2d 1258 (2009), citing Dolan
v. Galluzzo, 77 Ill. 2d 279, 285, 396 N.E.2d 13 (1979); Sullivan,
209 Ill. 2d at 123. In this case the trial court properly barred
nurse Hibbs from offering any opinions that the findings on the
fetal monitoring strips indicated that the baby should have been
delivered earlier due to fetal distress or fetal intolerance to
labor, since such opinions clearly related to whether the
applicable standard of care was breached.
Accordingly, for the reasons set forth above, the judgment
of the circuit court of Cook County is affirmed.
Affirmed.
HOFFMAN and PATTI, JJ., concur.
-25-