Northern Trust v. UNIV. OF CHICAGO HOSP., 1-02-3838.

• Decision Date: 23 December 2004
• Docket Number: No. 1-02-3838.,1-02-3838.
• Citation: 821 N.E.2d 757,355 Ill. App.3d 230,290 Ill.Dec. 445
• Parties: The NORTHERN TRUST COMPANY and Antoinette Scates, as Co-Guardians of the Estate of Marshawn Davis, a Minor, Plaintiffs-Appellees, v. The UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS, Defendant-Appellant (William Meadow, Chin-Chu Lin, R.J. Austin, Diane Ryan, Brian Rosner and Randall Barnes, Defendants).
• Court: United States Appellate Court of Illinois

821 N.E.2d 757

355 Ill. App.3d 230

290 Ill.Dec. 445

The NORTHERN TRUST COMPANY and Antoinette Scates, as Co-Guardians of the Estate of Marshawn Davis, a Minor, Plaintiffs-Appellees, v. The UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS, Defendant-Appellant (William Meadow, Chin-Chu Lin, R.J. Austin, Diane Ryan, Brian Rosner and Randall Barnes, Defendants).

No. 1-02-3838.

Appellate Court of Illinois, First District, Sixth Division.

December 23, 2004.

Anderson, Bennett & Partners, Diane L. Jennings, Chicago, for Appellant.

Corboy & Demetrio, Philip H. Corboy, Thomas A. Demetrio, and Barry R. Chafetz, Chicago; Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., Michael T. Reagan, Ottawa, for Appellees.

Presiding Justice FITZGERALD SMITH delivered the opinion of the court:

Plaintiffs-appellees the Northern Trust Company and Antoinette Scates, as co-guardians of the estate of Marshawn Davis, a minor (plaintiffs or as named), filed a two-count complaint at law: count I named defendant-appellant the University of Chicago Hospitals and Clinics (UCH) and defendants Drs. Chin-Chu Lin, R.J. Austin, Diane Ryan, Brian Rosner and Randall Barnes, alleging negligent care prior to the birth of Marshawn, causing mental retardation; and count II named UCH and defendant Dr. William Meadow, alleging negligent care of Marshawn in the neonatal unit after birth, causing a permanent injury to his left buttock. With respect to count I, the jury returned a verdict for plaintiffs and against UCH only, awarding $10,912,500 in damages; with respect to count II, the jury returned a verdict for plaintiffs and against UCH and Dr. Meadow, awarding $758,400 in damages. UCH appeals the verdict on count I only, contending that (1) the trial court erred in not granting judgment notwithstanding the verdict in favor of UCH due to plaintiffs' failure to provide sufficient evidence of proximate causation, and (2) the trial court erred when it refused to submit special interrogatories to the jury that would have tested the verdict.¹ UCH asks that we reverse the judgment with respect to count I and vacate that award or, alternatively, that we remand for a new trial. For the following reasons, we affirm.

BACKGROUND²

In late October 1988, Scates was progressing through a high-risk pregnancy because of weight gain. Her due date of October 22 had passed, and on October 26, 1988, she visited Dr. Ryan, a fourth-year resident, at a clinic for a nonstress test. The test was nonreactive, indicating that there was no affirmative demonstration of fetal well-being, so Dr. Ryan sent Scates to UCH for further testing. While at UCH, Dr. Rosner, a second-year resident, performed a second nonstress test and monitored the fetus. This test indicated that the fetus was showing signs of well-being, so Dr. Rosner sent Scates home.

At about noon on October 31, 1988, Scates' waters broke. She noted that the amniotic fluid had a brownish-mustard color; this is indicative of the presence of meconium (fetal waste) in the fluid. At 3:20 p.m., Scates arrived at UCH and informed an obstetrical nurse in the triage area that her waters had broken. Scates was admitted and placed in a labor room, and a fetal monitor was attach to her stomach at 3:50 p.m. The monitor showed a normal fetal heart rate but also recorded several decelerations, during which the fetus' heart rate would decline for a brief time and return to normal. Dr. Rosner performed a vaginal exam of Scates at 4:05 p.m., saw the meconium-stained fluid and determined that Scates was still some 12 to 20 hours away from a vaginal delivery. By 4:22 p.m., Dr. Rosner noted a second prolonged deceleration in the fetal heart rate and concluded that the fetus was suffering from distress. He consulted Dr. Lin, the attending obstetrician on duty, and Dr. Austin, who visited Scates between 4:25 and 4:28 p.m. and read the fetal heart tracings. Dr. Lin recommended that Scates be turned to the side, be given oxygen and that an intrauterine pressure catheter be attached to help alleviate the decelerations. Soon thereafter, Drs. Rosner and Lin, along with Dr. Ryan, discussed performing a cesarian section. The catheter was attached at 4:38 p.m., and a note was entered in Scates' chart indicating that the operating room was currently occupied and that the doctors were awaiting the opening of a second room in which to perform the surgery. Later, Dr. Ryan wrote a note in Scates' chart indicating that Scates gave consent for the cesarian section and that the doctors were waiting for the operating room. At 4:53 p.m., Scates was disconnected from the monitors in her labor room for transport and reconnected between 4:59 and 5 p.m. in a different room; she was prepped for the cesarian section. The first incision took place at 5:15 p.m. and Marshawn was delivered at 5:20 p.m. by the subsequent attending on duty, Dr. Barnes, with Drs. Rosner and Ryan assisting.

At one minute after birth, Marshawn had an Apgar score of 1 on a scale of 1 to 10, indicting that he was blue, his heart rate was low, he had no reflex response and he was not breathing on his own; he also had moderate acidosis, indicating that he had acidic blood due to a change in the intrauterine environment. He was suctioned and his Apgar score rose to 8 and then 9 at five minutes, as he had good color, heart rate and tone and was breathing on his own. Marshawn was transferred to the regular newborn nursery, where he was active, alert, had good reflexes, ate and urinated well and exhibited no neurological abnormalities. On November 1, 1988, approximately 12 hours after birth, Marshawn began experiencing cyanosis and right side seizure activity lasting several minutes. He was medicated and transferred to the neonatal intensive care unit, where the seizures continued. It was determined that Marshawn had suffered diminished blood, and thus oxygen, flow to the brain at some point in time surrounding his birth. Marshawn, who was 13 years old at the time of trial, is moderately mentally retarded, functions as a 2 to 3 year old, and will need 24-hour supervision for the remainder of his life.³

Plaintiffs filed a complaint at law against UCH and Drs. Lin, Austin, Ryan, Rosner and Barnes asserting negligent care prior to Marshawn's birth causing his mental retardation.⁴ Specifically, as against the doctors individually, plaintiffs alleged that they violated the standard of care by failing to promptly perform the cesarian section. As against UCH, plaintiffs alleged that it was negligent in failing to have a second operating room available wherein to perform the cesarian section, and that it was negligent through the actions of its obstetrical triage nurse in failing to attach the fetal monitor in a timely manner, no later than 3:30 p.m. (rather than 3:50 p.m.).

Several doctors involved in the cause, as well as multiple medical experts, testified at trial regarding what occurred prior to Marshawn's birth and its possible effects. Dr. Ryan testified that Scates arrived at UCH at 3:20 p.m. and was admitted at 3:50 p.m., whereupon a fetal monitor was attached. After an examination by Dr. Rosner, Dr. Ryan noted the presence of meconium, a "worrisome sign" because it can indicate that the fetus has had a bowel movement in utero due to oxygen deprivation and because of the danger that the fetus will aspirate the meconium below his vocal cords and interrupt oxygen flow. With respect to fetal heart rate and the placement of the monitor, Dr. Ryan noted that though presenting some variable decelerations, the fetal heart rate was normal until 4:18 p.m. when there was a sharp deceleration followed by another sometime before 4:30 p.m. The intrauterine pressure catheter was placed at 4:38 p.m. to provide fluid to the fetus. The heart rate returned within normal range and stayed that way until 4:50 p.m. She testified that decelerations become a concern only when they are repetitive in 50% to 70% of the mother's contractions; the fetus here had only experienced decelerations in 2 of some 20 to 30 contractions. The fetal heart rate actually improve around this time and exhibited no decelerations, indicating that the fetus was doing well even during Scates' contractions. Dr. Ryan stated that the fetal tracings at this time showed that "there wasn't an extreme urgency to do the [cesarian] section."

With respect to Marshawn's delivery, Dr. Ryan testified that UCH had four birthing rooms at the time: three set up to accommodate vaginal deliveries and one set up especially for cesarian section operations. Any of the three vaginal delivery rooms may be converted into an operating room for the performance of a cesarian section, requiring that surgical instruments and other necessary medical equipment be brought into these rooms. Dr. Ryan testified that there was never a situation where there was no place at UCH to accommodate a birthing emergency. She further testified that she wrote a note in Scates' chart stating that Scates was not dilated, that a cesarian section was needed because Marshawn was experiencing fetal distress, that the operating room was currently occupied, that doctors were waiting for a second room to be opened in which a cesarian section on Scates could be performed, and that Scates had given her consent for the surgery. Dr. Ryan could not decipher from the chart whether she wrote this note at 4:45 p.m. or 4:55 p.m., but testified that the decision to proceed with the cesarian section seemed to have been made sometime before 4:38 p.m., when the catheter was placed. Dr. Ryan averred that the nurse's notes indicate that Scates gave her consent for the surgery at 4:50 p.m. Scates was taken into a converted delivery room for the surgery by 5 p.m., the first incision took place at 5:15 p.m. and Marshawn was delivered at 5:20 p.m. Dr. Ryan testified that she did not believe Marshawn suffered any fetal distress injury from the delay in his delivery because he was "pretty good at birth." Dr....