Bergman v. Kelsey

• Citation: 873 N.E.2d 486
• Decision Date: 02 August 2007
• Docket Number: No. 1-06-1296.,1-06-1296.
• Parties: Katherine BERGMAN, Special Adm'r of the Estate of Isaac Bergman, Deceased, Plaintiff-Appellee, v. Robert KELSEY, Ollendorf and Kelsey, Ltd., a Professional Corporation, and Northwestern Memorial Hospital, a Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

873 N.E.2d 486

Katherine BERGMAN, Special Adm'r of the Estate of Isaac Bergman, Deceased, Plaintiff-Appellee, v. Robert KELSEY, Ollendorf and Kelsey, Ltd., a Professional Corporation, and Northwestern Memorial Hospital, a Corporation, Defendants-Appellants.

No. 1-06-1296.

Appellate Court of Illinois, First District, Fourth Division.

August 2, 2007.

Hughes, Socol, Piers, Resnick & Dym, Ltd., Chicago (Donna Kaner Socol, Terence J. Moran and Patrick M. O'Brien, of counsel), for Appellants.

Pavalon, Gifford & Laatsch, Chicago (Gary K. Laatsch, of counsel), for Appellee.

Presiding Justice QUINN delivered the opinion of the court:

Plaintiff Katherine Bergman filed a medical malpractice suit against Robert Kelsey, Ollendorf and Kelsey, Ltd. and Northwestern Memorial Hospital (defendants) following the death of her newborn son from a Group B streptococcus (GBS) infection. Following a trial, on February 25, 2005, the jury returned a verdict in favor of plaintiff for $1,750,000. The parties agreed that the verdict was subject to a $225,000 setoff for a prior settlement, and the circuit court entered a $1,525,000 judgment against defendants. The circuit court subsequently denied defendants' posttrial motion and defendants now appeal. On appeal, defendants contend that the circuit court erred in denying their request for judgment notwithstanding the verdict (judgment n.o.v.) and a new trial. For the following reasons, we affirm.

I. BACKGROUND

On April 5, 2001, plaintiff filed an amended complaint at law. In her complaint, plaintiff alleged that defendants were negligent by failing to screen for GBS during the prenatal period and by failing to diagnose macrosomia (a fetus with significant overgrowth) and timely respond to signs of infection and fetal distress during labor. Plaintiff's theory about GBS was that a prenatal culture would have identified her as a carrier and prompted prophylactic administration of antibiotics, thereby preventing transmission of the organism to the fetus. Plaintiff also maintained that defendants permitted plaintiff to attempt a vaginal delivery when they knew or should have known that fetal macrosomia would prevent a safe delivery by that method.

At trial, the parties' experts presented similar testimony about the standard of care applicable to GBS detection. Each expert witness agreed that the standard of care permitted physicians to choose one of two different options for managing possible GBS infections: the "culture" or the "risk-factor" approach. One of the primary differences between the two approaches concerns the timing of implementation. Under the culture approach, a pregnant woman is tested for the organism at 35 to 37 weeks of gestation. If the culture reveals the woman is positive for GBS, she is treated with antibiotics at the beginning of labor, even in the absence of any sign of infection. Under the risk-factor approach, treatment is deferred until a risk factor for infection is identified, such as preterm labor, ruptured membranes (when the woman's water breaks) for over 18 hours, a prior child who had GBS, and a maternal fever of 100.4 degrees or more. All witnesses agreed that both approaches were appropriate and conformed to the standard of care in 1999. Experts for plaintiff and defendants, Dr. Fields and Dr. Schwartz, testified that the standard of care on this issue was a "national" standard.

Plaintiff's expert Dr. Richard Fields testified that defendants deviated from the national standard of care in four areas: (1) failing to inform plaintiff of the two acceptable approaches to treat GBS, the approach adopted by defendants, and the risks and alternatives; (2) delaying the start of antibiotics provided to plaintiff; (3) failing to take into account the macrosomia, which should have resulted in certain discussions with plaintiff and a different method of delivery or a different method of delivery sooner; and (4) failing to undertake a cesarean section earlier based upon the abnormalities of the fetal heart tones or the fetal heart tracings.

Dr. Fields testified that when a physician has what is thought to be two equal methods of taking care of a problem in medicine, the standard of care requires the physician to discuss the methods with the patient and help the patient make an informed consent decision as to which method should be adopted in her particular case. Dr. Fields testified that by not engaging plaintiff in such a discussion regarding the two approaches to treat GBS, defendants violated the standard of care. Dr. Fields testified that guidelines issued by the American College of Gynecologists (ACOG) and material from the American Academy of Pediatrics (AAP) stated that such a discussion should take place between a physician and patient. Dr. Fields testified that he based his opinion in part on his experience at Sinai and Sinai-Grace hospitals in Detroit, Michigan.

Plaintiff's exhibits included the ACOG 1996 Committee Opinion on the "Prevention of Early-Onset Group B Streptococcal Disease in Newborns," relied on by Dr. Fields, which included a statement that obstetric providers use "either a strategy based on late prenatal culture (35-37 weeks) as the primary risk determinant or a strategy based solely on clinical risk factors" (Emphasis Added). The ACOG opinion also provided in pertinent part:

"Patients should be informed of the GBS prevention strategy used. This may be accomplished by providing patient information materials such as the patient information pamphlet produced by ACOG.

If the strategy adopted by the provider is based solely on clinical risk factors, some patients may request that GBS cultures be done. Such requests from informed patients should be honored by obtaining a culture at 35-37 weeks of gestation as recommended by CDC [Center for Disease Control]."

Plaintiff's exhibits also included the 1997 joint "Guidelines for Perinatal Care" by the American Academy of Pediatrics and ACOG, which stated in relevant part:

"Obstetric providers should adopt a strategy for the prevention of early-onset GBS disease in the newborn. * * *. Women should be informed of the GBS prevention strategy used. If the strategy adopted by the provider is based solely on clinical risk factors, some women may request GBS cultures. Such requests from informed women should be honored by obtaining a culture at 35-37 weeks of gestation."

Dr. Fields also testified that in this case, defendants should have anticipated a long labor because this was plaintiff's first baby, the baby was thought to be large, plaintiff's cervix was not well-effaced, and the baby's head was high in the pelvis. Dr. Fields testified that the average first labor is 18 to 24 hours long and that, under the standard of care, defendants should have anticipated a labor lasting longer than 18 hours. Dr. Fields testified that 90 % of mothers who delivered a baby infected with GBS tested positive for the organism when a prenatal culture was obtained. Dr. Fields testified that if a physician uses the risk-factor approach to treat GBS, once a labor has gone on longer than 18 hours, the physician administers antibiotics anyway, due to the increased risk of infection to the baby. Dr. Fields testified that plaintiff was nowhere close to delivery when the cesarean section was performed and that the prospects for vaginal delivery were poor because the baby was large. Dr. Fields testified that defendants therefore deviated from the standard of care by not providing plaintiff with antibiotics when plaintiff entered the hospital to induce labor at about 7:15 a.m., on April 5, 2000. As to causation, Dr. Fields testified that the death of the baby could have been avoided if defendants had administered antibiotics upon plaintiff's admission to the hospital.

Dr. Fields also testified that macrosomia is described as a 4,500-gram fetal weight and that prophylactic cesarean section is the standard of care when a physician suspects a 4,500-gram fetus. Dr. Fields testified that about two weeks before plaintiff entered the hospital for an induction, an ultrasound showed a 3,660-gram fetal weight. Dr. Fields testified that babies gain a half pound, or 250 grams, each week that goes by in the last part of pregnancy. Dr. Fields testified that it was reasonably expected that when plaintiff entered the hospital two weeks after the ultrasound, the baby would weigh approximately 4,100 grams. Dr. Fields testified that ultrasound is plus or minus 15 % in accuracy, and therefore, the baby could have been 4,500 grams or more, or less than 4,500 grams if the error was in the other direction. Dr. Fields testified that the standard of care at 4,500 grams required defendants to discuss with plaintiff having a cesarean section to avoid the risk of shoulder dystocia or damage to the baby's arm.

Dr. Fields testified that the labor and delivery summary filed by one of the nurses at the hospital showed that plaintiff's baby weighed 4,875 grams. Dr. Fields also testified that defendants and other health care providers at the hospital were watching fetal heart tracings during plaintiff's delivery. Heart rate tracing is a device that measures the fetal heart rate in response to maternal contractions. Dr. Fields testified that there were enough abnormalities in the nurse's notes describing the fetal hear tracings to indicate a need for delivery by cesarean section. Dr. Fields testified that the nurse's notes indicated that at 11:45 p.m., "mild variables" were noted, which means that the heartbeat is falling during the contraction and it returns back to its baseline before the contraction ends. At 1:10 a.m., a nurse again noted that variables were continuing, but that the return to baseline was after the contraction was completed, which Dr. Fields testified was a "nonreassuring" sign. Dr. Fields testified that given the fall in the heart rate for a period of time, the variables with the late return to baseline, and no prospect of...