First Nat. Bank v. Glen Oaks Hosp.

• Decision Date: 17 May 2005
• Docket Number: No. 2-03-1228.,2-03-1228.
• Parties: FIRST NATIONAL BANK OF LA GRANGE, Guardian of the Estate of Benjamin Chase, a Minor, Plaintiff-Appellee and Cross-Appellant, v. GLEN OAKS HOSPITAL AND MEDICAL CENTER, Defendant-Appellant (Rae Armbrust, Special Administrator of the Estate of David W. Brewer, Deceased, Defendant and Cross-Appellee).
• Court: Illinois Supreme Court

829 N.E.2d 378

FIRST NATIONAL BANK OF LA GRANGE, Guardian of the Estate of Benjamin Chase, a Minor, Plaintiff-Appellee and Cross-Appellant, v. GLEN OAKS HOSPITAL AND MEDICAL CENTER, Defendant-Appellant (Rae Armbrust, Special Administrator of the Estate of David W. Brewer, Deceased, Defendant and Cross-Appellee).

No. 2-03-1228.

Appellate Court of Illinois, Second District.

May 17, 2005.

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Joshua G. Vincent, Alice K. Kush, Hinshaw & Culbertson, Chicago, for Glen Oaks Hospital & Medical Center.

Peter Francis Geraci, Law Offices of Peter Francis Geraci, Chicago, for Estate of Benjamin Chase, First National Bank of La Grange.

William F. Cunningham, Robert L. Larsen, Cunningham, Meyer & Vedrine, Wheaton, for Rae Armbrust, Special Administrator, Estate of David W. Brewer, Jr.

Justice KAPALA delivered the opinion of the court:

Defendant Glen Oaks Hospital and Medical Center (Glen Oaks) appeals from the denial of its motion for a new trial after a jury verdict in the circuit court of Du Page County finding that Glen Oaks was negligent with respect to the delivery of Benjamin Chase. Plaintiff, First National Bank of La Grange, guardian of the estate of Benjamin Chase, cross-appeals from the verdict in favor of the estate of defendant Dr. David W. Brewer.

I. BACKGROUND

We begin by reciting the facts of Benjamin's delivery. We discuss the trial testimony, as necessary, within our resolution of each contention of error. Dr. Brewer was the obstetrician in charge of the delivery and the care of Benjamin's mother. After consultation with Dr. Brewer, Benjamin's parents chose to use the Bradley method of natural childbirth. The Bradley method advocates the avoidance of medical intervention during labor and delivery. The Bradley method recommends several natural techniques to augment labor, including effleurage (stroking the abdomen), showering to relieve pain and relax, and nipple stimulation to induce uterine contractions. The method also teaches that patients and healthcare providers are equal partners in the birth plan. Consequently, Bradley patients often prefer joint decision-making before any deviations from the natural childbirth process are taken.

Benjamin's mother's membranes ruptured at approximately 1 a.m. on June 18, 1991. She contacted Dr. Brewer and he told her to contact him again as soon as contractions started. Benjamin's mother contacted Dr. Brewer at 4 a.m. when contractions began. Dr. Brewer told her to go to Glen Oaks when the contractions were arriving in five-minute intervals. Benjamin's parents arrived at Glen Oaks later that morning. Dr. Brewer met Benjamin's parents at the hospital and examined Benjamin's mother at approximately 7 a.m.

A fetal monitor was attached, and Dr. Brewer ordered that Benjamin's mother be observed for labor and that the use of Pitocin, a drug used to induce uterine contractions, would be discussed if labor did not progress by the next day. Continuous fetal monitoring was not ordered. Benjamin's mother was allowed to ambulate and use the bathroom, as long as she informed the nurses before she got out of bed. At 2:08 p.m. on June 18, Dr. Brewer performed a sterile vaginal exam on Benjamin's mother. He informed her that if labor was not progressing by the next morning, they would need to take steps to move her along. A decision was made that labor would be naturally augmented through nipple stimulation instead of the use of Pitocin.

Dr. Brewer again examined Benjamin's mother at 7:35 a.m. on June 19. Because labor had progressed only minimally, Dr. Brewer ordered walking and nipple stimulation. Nipple stimulation occurred and contractions commenced, but the nipple stimulation ceased after 26 minutes due to two contractions occurring very close in time to one another, otherwise known as a coupled contraction, and the fetal monitor showing Benjamin's fetal heart rate dropping below baseline late in the contraction phase, otherwise known as a late deceleration. Baseline refers to the average fetal heart rate over a 10-minute period. Benjamin's mother was unable to reach active labor. She was allowed to use the bathroom and ambulate. At 11:44 a.m., a sterile vaginal exam was performed. Nipple stimulation resumed and the contraction interval improved. Benjamin's mother once again used the bathroom and, subsequently, another vaginal exam was performed. Her labor progressed during that afternoon.

At 3 p.m., one hour after her last vaginal exam, Benjamin's mother informed her nurse that she needed to go to the bathroom. The evidence conflicted as to whether the nurse asked Benjamin's mother whether she needed to urinate or move her bowels, because imminent delivery may feel similar to the urge to defecate. At 3:05 p.m., the fetal monitor was removed and the nurse assisted Benjamin's mother to the bathroom. The nurse's shift was ending so she left Benjamin's parents in the bathroom at 3:15 p.m. and went to the nurses' station. Benjamin's parents were in the bathroom from 3:15 p.m. to 3:35 p.m. During this time, a nurse came in and reassured Benjamin's mother. At 3:35 p.m., another nurse arrived and insisted that Benjamin's mother return to bed immediately.

The fetal monitor was reattached at 3:41 p.m. The nurse paged Dr. Brewer and summoned another nurse. Between 3:43 p.m. and 4:03 p.m., the nurses took steps to alleviate what they believed to be compression of Benjamin's umbilical cord and to oxygenate him. Dr. Brewer arrived at 4:06 p.m. He performed a vaginal exam and determined that Benjamin's mother's dilation was complete. He then administered medication to stop the contractions. Benjamin presented with his hand next to his face and his umbilical cord slightly pressed against his left shoulder. Dr. Brewer performed an episiotomy and delivered Benjamin using forceps at 4:33 p.m.

Because of the compression of the umbilical cord, Benjamin suffered "hypoxicischemic encephalopathy," which is a brain tissue injury caused by insufficient blood and oxygen supply. Benjamin has problems with range of motion and movement. He has great difficulty speaking and swallowing and has significantly impaired fine motor skills. His cognitive functioning is intact.

Plaintiff brought suit against Glen Oaks and Dr. Brewer for malpractice. The jury found Glen Oaks liable but found Dr. Brewer not liable. Glen Oaks filed a timely appeal. Plaintiff filed a timely cross-appeal from the judgment in favor of Dr. Brewer.

II. DISCUSSION

Glen Oaks contends that plaintiff's counsel engaged in a pattern of misconduct during trial such that a new trial is warranted. Plaintiff denies any attorney misconduct or prejudicial effect. Furthermore, plaintiff has cross-appealed, asking that we grant a new trial with respect to Dr. Brewer because of various errors made by the trial court. If we decide not to grant Glen Oaks a new trial, plaintiff requests that we not consider its cross-appeal.

Glen Oaks' claims of misconduct are extensive. Glen Oaks moved for a mistrial several times during the course of the trial. Glen Oaks categorizes plaintiff's counsel's misconduct into three categories. First, Glen Oaks avers that plaintiff's counsel engaged in "television-style" theatrics by engaging in conduct akin to "incomplete impeachment," whereby plaintiff's attorney would ask a leading question about undisclosed opinions and then withdraw the question as soon as a Rule 213 (177 Ill.2d R. 213) objection was made. Second, Glen Oaks alleges that plaintiff's counsel violated an in limine order that prohibited any suggestion that medical records had been forged or altered. Finally, Glen Oaks contends that plaintiff's attorney engaged in misconduct calculated to arouse and inflame the jury's passion and prejudice, including extensive use of improper tone, witness abuse, flagrant disagreement with the trial court's rulings in the jury's presence, argumentative questions, emotional outbursts, and theatrics calculated to demean witnesses or to arouse the jury's sympathy.

"Although improper argument and attorney misconduct can be the basis for granting a new trial, that determination is left to the sound discretion of the trial court and should not be disturbed on appeal absent an abuse of discretion. [Citation]. The attitude and demeanor of counsel, as well as the atmosphere of the courtroom, cannot be reproduced in the record, and the trial court is in a superior position to assess and determine the effect of improper conduct on the part of counsel. [Citation]." Zuder v. Gibson, 288 Ill.App.3d 329, 338, 223 Ill.Dec. 750, 680 N.E.2d 483 (1997). Generally, a reviewing court will not find reversible error due to improper comments by counsel unless a party has been substantially prejudiced by such comments. Bresland v. Ideal Roller & Graphics Co., 150 Ill.App.3d 445, 454, 103 Ill.Dec. 513, 501 N.E.2d 830 (1986). "Furthermore, if the trial was fair as a whole and the evidence was sufficient to support the jury's verdict, a case will not be reversed upon review." Bresland, 150 Ill.App.3d at 454, 103 Ill.Dec. 513, 501 N.E.2d 830. However, juries should not be unfairly biased by appeals to their emotions. Chakos v. Illinois State Toll Highway Authority, 169 Ill.App.3d 1018, 1029, 120 Ill.Dec. 585, 524 N.E.2d 615 (1988).

A. Questions Posed in Violation of Supreme Court Rule 213

First, we turn to plaintiff's counsel's questioning of Linda Mahlmeister, plaintiff's nursing expert. Mahlmeister testified as to what were, in her opinion, several breaches of the nursing standard of care. Glen Oaks claims that during her questioning, plaintiff's counsel intentionally framed questions to suggest to the jury matters for which there was no basis in the evidence, in violation of Supreme Court Rule 213 (177 Ill.2d R. 213). Glen Oaks cites six separate instances of plaintiff's counsel posing a question to Mahlmeister, receiving an...