Simmons v. University of Chicago Hospitals and Clinics

• Decision Date: 20 May 1993
• Docket Number: No. 1-91-2759,1-91-2759
• Citation: 617 N.E.2d 278,247 Ill.App.3d 177
• Parties: , 187 Ill.Dec. 70 Jennifer SIMMONS, Administrator of the Estate of Toussant Devon Simmons, a minor, deceased, Terrence Simmons and Jennifer Simmons, Plaintiffs-Appellees, v. UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS d/b/a University of Chicago Medical Center and Luis Cibils, M.D., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 278

617 N.E.2d 278

247 Ill.App.3d 177, 187 Ill.Dec. 70

Jennifer SIMMONS, Administrator of the Estate of Toussant Devon Simmons, a minor, deceased, Terrence Simmons and Jennifer Simmons, Plaintiffs-Appellees, v. UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS d/b/a University of Chicago Medical Center and Luis Cibils, M.D. Defendants-Appellants.

No. 1-91-2759.

Appellate Court of Illinois First District, Fourth Division.

May 20, 1993.

Cassiday, Schade & Gloor, Chicago (William J. Furey, Timothy J. Ashe & Lynn D. Dowd, of counsel), Jenner & Block, Barry Sullivan, for defendants-appellants.

Edward R. Vrdolyak, Ltd., Chicago (Timothy Quinn & Gino P. Naughton, of counsel), for plaintiffs-appellees.

Justice HOFFMAN delivered the opinion of the court:

Jennifer Simmons, Administrator of the Estate of Toussant Devon Simmons, deceased, on behalf of herself and Terrence Simmons, as parents and next of kin of the decedent, sought recovery under the Wrongful Death Act (Ill.Rev.Stat.1981, ch. 70, Sec. 1 et seq.) against the University of Chicago Hospitals and Clinics (UCHC) and Luis Cibils, M.D. Plaintiff alleged that defendants' medical negligence caused the death of the decedent on the day of his birth, April 5, 1983.

The case proceeded to trial before a jury, and on March 20, 1991, a verdict of $1.6 million was returned against defendants. The jury fixed the pecuniary loss of Mrs Simmons at $900,000, and that of Mr. Simmons at $700,000. Defendants' timely post trial motion was denied on July 18, 1991, and this appeal followed.

Defendants argue they are entitled to a new trial, assigning as error the following: (1) the giving of Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1989) (IPI No. 5.01), which allowed the jury to draw an adverse inference by reason of defendants' failure to call Dr. Judith Hibbard as a witness; (2) the allowance of plaintiff's motion in limine barring defendants from introducing evidence that Mr. and Mrs. Simmons had two children subsequent to the death of the decedent; (3) the allowance of expert testimony by Dr. Mitra Kalelkar, a forensic pathologist, on an issue allegedly beyond her field of expertise; (4) that the verdict of $1.6 million for loss of society with an infant that died at birth was excessive and the product of passion and prejudice; and (5) that the verdict was against the manifest weight of the evidence.

Viewing the evidence in this case in the light most favorable to plaintiff (Kemper v. McDougal-Hartmann Co. (1984), 127 Ill.App.3d 512, 515, 82 Ill.Dec. 344, 468 N.E.2d 998), the following are the facts pertinent to the disposition of this appeal.

Between 10 and 10:30 a.m. on April 5, 1983, Mrs. Simmons was admitted to defendant hospital in active labor. She was examined and a fetal monitor was attached. At about 11:40 a.m., a female resident artificially ruptured Mrs. Simmons' membrane in order to attach a scalp electrode to the unborn child. When the membrane was ruptured, Mrs. Simmons began to discharge a thick muconium indicative of fetal distress caused by insufficient oxygen. At 12:20 p.m., a significant deceleration in the fetal heart rate was noted and a resident notified defendant, Dr. Cibils. Concluding that the deceleration was caused by an umbilical cord compression, Dr. Cibils ordered that Mrs. Simmons be taken to an operating room for an emergency C-section delivery. In the operating room, the fetal monitor was reconnected, and at 12:28 p.m., the child's heart rate recovered. Dr. Cibils examined both Mrs. Simmons and the unborn child, and at 12:30 p.m., he cancelled the emergency C-section procedure.

At 3:37 p.m., the fetal heart rate again significantly decelerated and Mrs. Simmons was returned to the operating room. At 3:57 p.m., Dr. Cibils performed an emergency C-section delivery of a baby boy. Although the child had a heart beat at the time of delivery, he was in distress. Subsequent resuscitation attempts in the operating room and intensive care were unavailing, and shortly after his birth, the decedent died of perinatal asphyxia.

Plaintiff's expert witness, Dr. Masterson, opined that Dr. Cibils' cancellation of the C-section delivery at 12:28 p.m. constituted a deviation from the requisite standard of care and that this deviation caused the decedent's death. Defendants introduced evidence that Dr. Cibils complied with the requisite standard of care in his medical treatment of Mrs. Simmons and the decedent.

We will address each assignment of error, but not necessarily in the order in which defendants presented them.

The reversal of a jury verdict and grant of a new trial is warranted when a party has been prejudiced by the erroneous admission or exclusion of evidence. (Bass v. Washington-Kinney Co. (1983), 119 Ill.App.3d 713, 727, 75 Ill.Dec. 295, 457 N.E.2d 85.) This broad proposition impacts upon two allegations of error in the case at bar; namely, the admission of Dr. Mitra Kalelkar's opinion testimony, and the exclusion of defendants' evidence that the Simmonses had two children subsequent to decedent's death. We will address each of these contentions separately.

The burden of establishing an expert witness's qualifications to render an opinion on a particular subject lies with the party offering that witness's testimony. The determination of the sufficiency of the witness's qualifications is a matter within the sound discretion of the trial judge, whose decision will be reversed only for abuse of that discretion. Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill.2d 1, 36, 133 Ill.Dec. 432, 541 N.E.2d 643; People v. Free (1983), 94 Ill.2d 378, 69 Ill.Dec. 1, 447 N.E.2d 218; Hardware State Bank v. Cotner (1973), 55 Ill.2d 240, 302 N.E.2d 257.

Dr. Kalelkar testified that in her opinion, the decedent would have survived had a C-section been performed at 12:28 p.m., when originally planned. According to defendants, this opinion would have been more appropriately given by an obstetrician or a gynecologist rather than a forensic pathologist. Defendants argue that the trial court erred in allowing Dr. Kalelkar to render an opinion outside her field of expertise.

On direct examination, Dr. Kalelkar was asked whether the decedent would have survived had he been delivered by a C-section procedure at 12:28 p.m. Before allowing her to answer the question, the trial court recessed the trial and a voir dire examination of Dr. Kalelkar was conducted outside the presence of the jury. During that examination, Dr. Kalelkar testified that she had studied the fetal monitor tracings for the time in issue. Those tracings revealed that the decedent suffered a period of asphyxia from which he recovered. His heart rate returned to normal and he survived in utero. It was her opinion that had decedent been delivered by a C-section procedure at 12:28 p.m., he would have survived. She specifically declined, however, to render any opinion as to whether, under the clinical circumstances present at 12:28 p.m., a C-section delivery should have been performed. After the voir dire examination, the trial court found Dr. Kalelkar competent to respond to the question posed and to render the opinion requested. Dr. Kalelkar then resumed her testimony before the jury and gave the opinion at issue.

There is no question as to Dr. Kalelkar's qualifications as a pathologist or her competence to render expert testimony regarding the cause of the decedent's death. Doctor Mitra Kalelkar is licensed to practice medicine in Illinois and is board certified in forensic pathology. According to her testimony, her special area of interest within her field of concentration is "pediatric deaths." The evidence also reveals that she has written on the subject of infant asphyxia. As assistant medical examiner for Cook County, Dr. Kalelkar performed an autopsy upon the decedent and also reviewed the hospital records which included the fetal monitor tracings. She found no abnormalities in the decedent's heart or other vital organs, and fixed the cause of his death as perinatal asphyxia.

Based upon this record, we find no abuse of discretion in the trial court's determination that Dr. Kalelkar was qualified to render the subject opinion. It must be borne in mind that Dr. Kalelkar gave no opinion regarding the requisite standard of care owed by Dr. Cibils under the circumstances of this case, or whether he breached any such standard. In our view, the record amply supports the ruling of the trial court on this issue.

The next evidentiary issue for review is the propriety of the grant of plaintiff's motion in limine precluding defendants from introducing evidence that the Simmonses gave birth to two children subsequent to the death of the decedent. A complete examination of this issue requires that it be viewed from two separate perspectives, the first being the time the ruling was originally made, and the second being the time of plaintiff's closing argument.

Defendants argue that the evidence of the Simmons' two subsequent children was relevant to plaintiff's claim for damages due to loss of society, and was crucial to defendants' ability to rebut the presumption of loss of society on the part of Mr. and Mrs. Simmons upon the death of their child.

The Illinois Wrongful Death Act governs all damage claims arising from the death of one person as a result of the negligence of another. Section 2 of the Act provides that "the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person." (Ill.Rev.Stat.1981, ch. 70, sec. 2; Bullard v. Barnes (1984), 102 Ill.2d 505, 82 Ill.Dec. 448, 468 N.E.2d 1228.) When the decedent is a minor child and the next of kin are his surviving parents, the law recognizes a presumption that the parents have suffered a substantial pecuniary injury in the form of loss of society....