Individually v. Moore
| Decision Date | 13 August 2010 |
| Docket Number | No. 1-09-0381.,1-09-0381. |
| Citation | 403 Ill.App.3d 147,342 Ill.Dec. 360,932 N.E.2d 487 |
| Parties | Keenan STAPLETON, a Minor, By and Through His Parent and Next Friend, Felicia CLARK, and Felicia Clark, Individually, Plaintiffs-Appellants, v. Monica MOORE, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
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John C. Wunsch, Karl E. Hunsicker, John C. Wunsch, P.C., William J. Harte, Joan M. Mannix, William J. Harte, Ltd., Chicago, IL, for Plaintiffs-Appellants.
Jennifer A. Lowis, Lee A. Berger, Mehreen S. Sherwani, Lowi & Gellen LLP, Chicago, IL, for Defendant-Appellee.
In this appeal, we determine whether the use of a medical journal article on cross-examination of an expert is permissible, when only the reliability of the author is established and not the reliability of the particular article or text itself Plaintiff, Felicia Clark, individually, and on behalf of Keenan Stapleton, a minor, appeals from the entry of judgment on a jury verdict in favor of defendant in her action for medical malpractice arising from an injury suffered by Keenan during delivery. Plaintiff asserts the following errors: (1) the trial court erred in allowing defendant to use a journal article in cross-examining plaintiff's expert because, inter alia, the article was not disclosed prior to trial; (2) the trial court erred in instructing the jury as to the proper standard of care; (3) the trial court erred in granting defendant's motion in limine, barring any testimony as to whether an “arrest of labor” took place; and (4) the testimony of the attending resident doctor, Dr. Meininger, at trial that his medical record notation was in error violated Supreme Court Rule 213 (210 Ill.2d R. 213). For the following reasons, we affirm.
Keenan Stapleton was born on July 17, 2003, at about 38 weeks of gestation. During the birth, Keenan's mother, plaintiff Felicia Clark, was told by her doctor, Dr. Monica Moore, that the baby was being “stubborn” and that she should push to help in the delivery. After the delivery, Dr. Moore told plaintiff that she should probably get Keenan's arm checked out. However, Dr. Moore did not explain why she said this. Plaintiff described Keenan's arm as very limp and hanging to the side. No one at Rush Memorial Hospital explained to plaintiff what was wrong with Keenan's arm. Keenan was otherwise healthy and weighed 9 pounds, 5 ounces.
Dr. Moore's chart indicates a note made shortly after Keenan's birth that there was a normal spontaneous vaginal delivery with shoulder dystocia, which means a difficult delivery of a baby's shoulders. Shoulder dystocia is a medical emergency because the baby must be delivered in a short time frame or it could die or sustain brain damage. Shoulder dystocia can be addressed in a variety of ways, the McRoberts maneuver, where the mother is repositioned with her legs up and back, or through the application of suprapubic pressure. The suprapubic pressure is intended to push and dislodge the baby's trapped anterior shoulder. In plaintiff's case, the McRoberts maneuver and application of suprapubic pressure were successfully used. Dr. Moore's note indicates only 40 seconds passed from the time she recognized the shoulder dystocia to the time Keenan was actually delivered. However, this note also includes a cross-out, now illegible, notation with the word “error” written next to it.
Keenan suffered a permanent left-side brachial plexus injury called Erb's palsy. The brachial plexus is a group of nerves that extends from the spinal cord, at the cervical and thoracic vertebrae, down to the muscles of the shoulder, arm, forearm and hand. These nerves can become permanently damaged in babies as a result of stretching between the neck and shoulder on either side, occurring most often during shoulder dystocia.
Plaintiff filed the instant proceedings against Dr. Moore, alleging that in the course of the delivery Dr. Moore had applied greater-than-gentle traction to Keenan's head, causing him to sustain the brachial plexus injury. In defense, Dr. Moore maintained that the injury was not caused by any traction applied by her, but rather from the force of uterine contractions on Keenan's body when his left shoulder caught on a ridge in the sacral promontory area of plaintiff's spine.
Dr. Moore's notes do not indicate the orientation of Keenan's head or which shoulder was involved with the shoulder dystocia. However, the chart entries include a note written by a medical student, Alex Meininger, indicating a “normal spontaneous delivery with shoulder dystocia for 40 seconds reduced with McRoberts maneuvers and suprapubic pressure and secondary perineal laceration.” Meininger also noted “LOA,” indicating left shoulder dystocia anteriorly, meaning that Keenan's left shoulder was positioned toward the front, under plaintiffs pubic symphysis. However, this notation conflicted with Meininger's further notation that Keenan's head was also “LOA.” Meininger testified that he obtained this information from directly observing the delivery, the residents, and from Dr. Moore. Meininger testified that he must have been confused when he indicated left shoulder dystocia anteriorly in the chart, because with LOA, the right shoulder would be anterior. He had only been documenting in patient charts for 7 to 10 days at that time, and this notation seemed to be an error. Further, this was the only conflict in the records, as the delivery note and the labor and delivery summary both indicated LOA for Keenan's position.
Dr. Moore testified that while she had received training regarding treatment of shoulder dystocia, prior to Keenan's case she had encountered only one instance of that condition. According to the doctor, there was no point in time that she believed she needed to get Keenan delivered quickly because his life was in jeopardy. Dr. Moore explained that she called in a pediatric resident, Dr. Emily Sifferman, because of fetal decelerations occurring with pushing. Dr. Moore testified she was not too concerned with the decelerations but called Sifferman just in case something happened. With respect to Meininger's note, Dr. Moore stated that because of the LOA position of Keenan's head, the left shoulder could not have been anterior. Dr. Moore testified she did not know how Meininger got the information about the left shoulder being anterior.
Dr. Moore independently recollected plaintiff's labor and the delivery of Keenan. Also present at the delivery were a resident, Dr. Carrie Smith, a nurse, and the pediatric resident, Dr. Sifferman. Dr. Moore remembered that the nurse had one of plaintiff's legs up and back, but could not recall which leg, and could not remember who was holding plaintiff's other leg. Dr. Smith applied the suprapubic pressure. Dr. Moore told plaintiff she really needed to push to help get the baby out. After a very short period of time, Dr. Moore guided the anterior shoulder out, and Dr. Smith pushed down and Keenan's shoulder “popped right out.” According to Dr. Moore, the simultaneous combination of a last contraction by plaintiff, traction applied by Dr. Moore, and the suprapubic pressure caused the anterior shoulder to pop out and the rest of Keenan's body to be delivered.
Dr. Moore denied applying any upward traction during Keenan's delivery, because this would work against the application of downward suprapubic pressure. Dr. Moore also denied applying any excessive downward traction, and also denied pulling or twisting Keenan's head. After Keenan's head was delivered, plaintiff moved far up on the bed, and Dr. Moore's hands were on Keenan's head for some portion of the distance that plaintiff moved up and away. Dr. Moore conceded that she had testified at her deposition that during the time plaintiff was pushing, about 10 seconds, she applied “probably medium” force on Keenan's head. Dr. Moore agreed that the standard of care would allow for the use of gentle lateral traction to deliver a baby when shoulder dystocia is present, although Dr. Moore maintained what is “gentle” differs from person to person and is subjective. Dr. Moore agreed that using greater-than-gentle lateral traction on a baby with shoulder dystocia would be a deviation from the standard of care absent a life-threatening scenario. She further testified that the amount of traction she applied was “nowhere near excessive” and that she does not know why Keenan suffered his injury. Dr. Moore remembers after the delivery thinking it was strange that Keenan's left shoulder was injured, because his right shoulder was the one under plaintiff's pubic bone. Dr. Moore denied violating the standard of care in Keenan's case and had the opinion, within a reasonable degree of medical certainty, that nothing she did caused the injury.
Plaintiffs obstetric expert, Dr. Stuart Edelberg, was board certified in obstetrics and gynecology and had been practicing in obstetrics for over 40 years. Dr. Edelberg indicated he thought Meininger's “LOA” notation was mistaken and should have indicated “ROA” (right occiput anterior) for Keenan's head position, which would have been consistent with Keenan's left arm being anterior. Dr. Edelberg reviewed the labor and delivery summary and felt that the left shoulder was anterior because anterior shoulder dystocia is statistically more likely. In any event, the left arm could have been injured whether the left shoulder was anterior or posterior, and the actual position did not impact Edelberg's opinions.
In Edelberg's opinion, shoulder dystocia is a medical emergency. The standard of care requires a physician to perform the recognized maneuvers for delivery of a shoulder dystocia, including the McRoberts maneuver and the application of suprapubic pressure. Any pressure on the head used to...
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