Stennis v. Rekkas, 1-90-0471

• Decision Date: 27 July 1992
• Docket Number: No. 1-90-0471,1-90-0471
• Citation: 233 Ill.App.3d 813,599 N.E.2d 1059
• Parties: , 175 Ill.Dec. 45 Myra STENNIS, as Mother and Next Friend of Marcus Stennis, a minor, Plaintiff-Appellee, v. Chris REKKAS, M.D., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1059

599 N.E.2d 1059

233 Ill.App.3d 813, 175 Ill.Dec. 45

Myra STENNIS, as Mother and Next Friend of Marcus Stennis, a minor, Plaintiff-Appellee, v. Chris REKKAS, M.D., Defendant-Appellant.

No. 1-90-0471.

Appellate Court of Illinois First District, First Division.

July 27, 1992.

Rehearing Denied Oct. 2, 1992.

Wildman, Harrold, Allen & Dixon, Chicago (Ruth E. VanDemark, Ellen Keefe-Garner, Mary Elisabeth Ruether and John M. Stalmack, of counsel), for defendant-appellant.

John G. Phillips & Associates, Chicago (John F. Klebba and J.W. Mitchell, of counsel), for plaintiff-appellee.

Justice CAMPBELL delivered the opinion of the court:

Plaintiff Myra Stennis, as mother and next friend of minor Marcus Stennis, brought suit in the circuit court of Cook County against defendant Chris Rekkas, M.D., for injuries Marcus sustained during his birth. Following a jury trial, a verdict was rendered in favor of plaintiff; defendant now appeals. For the reasons which follow, we affirm.

The record on appeal contains the following facts. On December 29, 1979, plaintiff filed a medical malpractice action against defendant, arising out of treatment provided to Myra and Marcus on September 8, 1976. The initial complaint alleged that as a result of Dr. Rekkas' acts or omissions, Marcus suffers from a permanent paralysis in his right arm. The complaint was later amended to include a count alleging res ipsa loquitur. Dr. Rekkas denied all of the above allegations.

During the course of pretrial discovery, Dr. Rekkas requested the names and opinions of any experts plaintiff intended to call as witnesses at trial. Plaintiff eventually identified Dr. Allan Charles as her liability expert.

Dr. Charles was deposed on September 16, 1983. At his deposition, Dr. Charles testified that he was an obstetrician and gynecologist and that the medical background provided to the defense in his curriculum vitae was current. Dr. Charles testified that in connection to this lawsuit, he had reviewed delivery records from Saint Mary of Nazareth Hospital, nursery records, records from Children's Memorial Hospital and Dr. Rekkas' deposition transcript. He had also reviewed certain texts and articles in forming his opinions about the case. He had not relied on verbal information outside these records, including information provided by plaintiff's counsel.

Dr. Charles opined that Dr. Rekkas had deviated from the standard of care in delivering Marcus because the records he reviewed indicated that Marcus had a permanent brachial plexus injury. Dr. Charles explained that the injury indicated lack of the proper maneuvers for delivery of a "tight shoulder." Dr. Charles identified two maneuvers which could be performed in such a case. The first maneuver, according to Dr. Charles, was the "tight ring," in which the child's position is rotated--similar to a corkscrew effect--to move the child's shoulders into a position conducive to delivery. The second maneuver would be to reach into the mother's vagina and sweep the child's posterior arm across the child's chest, thereby reducing the diameter of the shoulder girdle.

Dr. Charles also opined that Marcus had a fractured humerus as well as the extensive brachial plexus injury, and that these injuries indicated that excessive force was applied during the delivery of the shoulders. Dr. Charles indicated that he had no other opinions relating to a deviation from the standard of care in this case.

Following a motion for partial summary judgment, the case was allowed to proceed to trial on the theories of: (1) failure to perform proper maneuvers; (2) exertion of excessive force during delivery; and (3) res ipsa loquitur. The trial court also considered a number of motions in limine. The trial court ruled that Dr. Rekkas could have an order barring criticism of the use of fundal pressure during delivery. The trial court denied Dr. Rekkas' motion in limine to bar testimony concerning the fact that Marcus bit his nails, accepting plaintiff's argument that the fact that Marcus did so until he bled showed the loss of feeling in Marcus' fingers. The trial court granted Dr. Rekkas' motion to bar testimony that Marcus suffered brain damage or cognitive difficulties as a result of the delivery, for there was no expert testimony on the subject.

The case proceeded to trial on September 28, 1989. Myra Stennis testified that while pregnant with Marcus, she noticed labor pains and contractions in the early morning hours of September 8, 1976. She called Dr. Rekkas at about 8:30 or 9 a.m. Dr. Rekkas advised her to stay home and call him when the contractions were five minutes apart. Myra testified that the contractions were five minutes apart at about 6 p.m. that evening.

Myra and her husband arrived at the hospital at about 7:40 p.m. that evening. Myra was taken to the delivery room and prepared for the delivery. Dr. Rekkas arrived at about 8:10 p.m. About five or ten minutes later, Dr. Rekkas stated that he could see the child's hair. Dr. Rekkas told Myra to push and told two nurses to push down on Myra's stomach. Marcus was delivered; Myra testified that she could not see what Dr. Rekkas did during the delivery due to a sheet placed over her legs.

The next morning, a nurse brought Marcus to Myra for a feeding. After unwrapping Marcus, Myra noticed that his right eye was partially closed and his right arm was lying by his side. Myra asked the nurse what was wrong with Marcus' arm; the nurse said that she did not know and referred Myra to the doctor.

Myra testified that she saw Dr. Rekkas later that same morning and asked him about the problem with Marcus' arm. When Myra was asked what Dr. Rekkas said, Myra did not complete an answer, and a short recess was called at the request of plaintiff's attorney. Outside the hearing of the jury, the trial judge asked Myra if she would try not to cry on the stand. The trial judge acknowledged that this must be difficult for Myra and stated that he did not like to tell a witness how to act on the stand because credibility is an issue in every case. However, the trial judge opined that the appellate court sometimes held that a weeping witness may unduly influence a jury and grant a retrial. Myra indicated that she would try not to cry again.

Continuing her testimony before the jury, Myra stated that Dr. Rekkas told her that it was a hard delivery and that he had to pull on Marcus to get him out. Dr. Rekkas recommended to Myra that she take Marcus to a pediatrician after she was discharged from the hospital. Myra took Marcus to a pediatrician the day after her discharge. The pediatrician advised Myra to take Marcus to Children's Memorial Hospital. Myra stated that she has taken Marcus to a number of doctors, therapists and hospitals over the years. Myra testified that Marcus has a condition called Klumpke's paralysis and that the condition of his arm has remained basically the same since birth.

Myra further testified that as a child, Marcus used to bite his hand and fingers. On three occasions, Marcus bit a plug of skin out of the palm of his hand. His hand became infected twice. Marcus would bite his fingernails completely off and would bite them until they bled. His fingernails have become infected at least 30 or 40 times over the past thirteen years. Marcus had difficulty learning to write; he held the paper in place with the bottom part of his right forearm. He can hold a toothbrush with the thumb and index finger of his right hand, but he cannot hold heavy objects in those fingers. At age thirteen, Marcus cannot tie his shoes by himself; Myra assists him. Myra washes Marcus' hair, which remains dirty when Marcus attempts to wash it himself. Marcus helps with household chores, such as vacuuming and putting dishes in the dishwasher. Marcus can eat with his left hand, but Myra still cuts his food because Marcus accidentally cut his arm on one occasion.

According to Myra, when Marcus first started school, the other children made fun of Marcus and he would come home crying; this was no longer a problem. Marcus plays basketball, football and baseball with the other kids, albeit with limitations. If Marcus swings his right arm, he can get it over his head, but can only raise it himself to chest level. Once, Marcus told Myra he did not want to go to therapy and that he wanted a doctor to remove his right arm because it did not serve any purpose.

Dr. Rekkas testified as to his professional background, including the fact that he has been board certified in obstetrics and gynecology since 1969. On September 8, 1976, Dr. Rekkas was called at home in the evening regarding Myra's pending delivery. Dr. Rekkas testified that he drove to the hospital, went to the delivery room and prepared for the delivery. As he entered the delivery area, Dr. Rekkas could see that a large part of the fetal scalp was visible at the vagina. Dr. Rekkas gave a regional anesthetic to numb the area around the birth canal, then made an incision in the vulva to enlarge the vaginal opening and prevent tissue tearing during delivery. Myra gave a push; Marcus' head delivered. Dr. Rekkas suctioned mucus from Marcus' nose and mouth and told Myra to push again.

Dr. Rekkas testified that at this point in the delivery, Marcus rotated in the birth canal; Marcus' right shoulder was pointed toward the ceiling, his left toward the floor. Dr. Rekkas asked Myra to push while he gently pressed down on Marcus' head. Dr. Rekkas repeated this maneuver after asking Myra to push harder and asking a nurse to apply pressure over the upper uterus. These efforts were unsuccessful attempts to get Marcus' shoulder under the arching bone structure which ties Myra's pelvic bones together in the front.

Dr. Rekkas realized that this was a case of shoulder dystocia. He then attempted to rotate Marcus to an oblique angle which would facilitate delivery. Marcus, however, did not move and was beginning to turn blue. Dr. Rekkas...