Watson v. W. Suburban Med. Ctr.

• Decision Date: 30 March 2018
• Docket Number: No. 1–16–2707,1–16–2707
• Citation: 103 N.E.3d 895,2018 IL App (1st) 162707
• Parties: Marques WATSON Jr., a Minor, BY Denise LEONARD, His Mother and Guardian of His Estate; and Denise Leonard, Individually, Plaintiffs–Appellants, v. WEST SUBURBAN MEDICAL CENTER; Resurrection Health Care Corporation; and VHS West Suburban Medical Center, Inc., Defendants (West Suburban Medical Center and Resurrection Health Care Corporation, Defendants–Appellees).
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 162707

103 N.E.3d 895

Marques WATSON Jr., a Minor, BY Denise LEONARD, His Mother and Guardian of His Estate; and Denise Leonard, Individually, Plaintiffs–Appellants,

v.WEST SUBURBAN MEDICAL CENTER; Resurrection Health Care Corporation; and VHS West Suburban Medical Center, Inc., Defendants

(West Suburban Medical Center and Resurrection Health Care Corporation, Defendants–Appellees).

No. 1–16–2707

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed March 30, 2018

Joan M. Mannix, Christopher Patrick Ford, and Byron L. Mason, all of Chicago, for appellants.

Aiju C. Thevatheril, Catherine Basque Weiler, and Elizabeth A. Bruer, of Swanson, Martin & Bell, LLP, of Chicago, for appellees.

JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 The plaintiffs, Marques Watson Jr. and Denise Leonard, his mother, filed a medical malpractice complaint against the defendants, West Suburban Medical Center, Resurrection Health Care Corporation (collectively WSMC), and VHS West Suburban Medical Center, Inc. (VHS). The plaintiffs' motion to dismiss VHS voluntarily and without prejudice was granted prior to trial. The jury found for WSMC and against the plaintiffs, and the trial court entered judgment on the verdict. Following the denial of their posttrial motion, the plaintiffs filed a timely notice of appeal.

¶ 2 On appeal, the plaintiffs contend that the jury's verdict must be reversed and a new trial ordered because (1) numerous trial court errors denied them a fair trial and (2) the jury's verdict was against the manifest weight of the evidence. After careful review of the evidence at trial, we conclude that the plaintiffs received a fair trial, and the jury's verdict was not against the manifest weight of the evidence.

¶ 3 BACKGROUND

¶ 4 I. Facts

¶ 5 On December 11, 2008, 24–year–old Denise was 29 weeks into her pregnancy. On that date, she had a regularly scheduled appointment at the PCC Community Wellness Clinic. There she was seen by Dr. Thomas Staff who detected an abnormally high fetal heart rate. Dr. Staff directed Denise to go to the WSMC's obstetrical triage to determine if she was in preterm labor

and to monitor the fetal heart rate. In accordance with Dr. Staff's direction, that evening Denise went to WSMC where she was seen by nurse Felicia Hughes–Schmidt (nurse Hughes) and Dr. Sherif Milik, the maternal/child health fellow (the fellow).¹

¶ 6 Dr. Milik performed a sterile speculum exam to determine if Denise's amniotic membrane (membrane) had ruptured. The sterile speculum exam involved three tests to determine if the membrane had ruptured: (1) checking for the pooling of fluid in the posterior fornix of the vagina; (2) "ferning," where a swab taken from the pooled fluid is tested; and (3) testing the pooled fluid with a nitrazine strip. The results of the three tests showed that the membrane had not ruptured. Dr. Milik then performed a digital exam to determine if Denise's cervix was dilated or shortened. After several hours of observation and a determination that Denise was not in premature labor

, Dr. Milik discharged her at or around 11 p.m. on December 11, 2008.

¶ 7 At approximately 3 a.m. on December 12, 2008, Denise felt a gush of water down her leg and was taken by ambulance to WSMC. At this time, Dr. Christine Swartz was the fellow on the labor and delivery floor, and Dr. Natasha Diaz was the attending doctor (the attending). Denise was seen by nurse Hughes and Dr. Stephen Johnson, a second-year resident. According to Denise, Dr. Johnson entered her room and lifted the sheet covering her, commenting that he did not see anything. He then left the room. At 5:45 a.m. on December 12, 2008, Dr. Johnson signed an order discharging Denise from WSMC.

¶ 8 Upon arriving home, Denise slept until 7 p.m. When she woke up, she noticed her stomach had dropped. Rather than return to WSMC, she had a cousin drive her to University of Illinois Hospital (UIC) where she was admitted. A resident performed a sterile speculum exam, which revealed that Denise's membrane had ruptured. Because the rupture increased the risk of an infection, Denise was given antibiotics. As a matter of course, she was screened for Group B streptococcus (GBS).² Denise began displaying symptoms of infection and was diagnosed with clinical chorioamnionitis (chorio) due to a GBS infection and sepsis. Marques was delivered by an emergency C-section.

¶ 9 While at birth Marques's blood culture

tested negative for GBS, he was given antibiotics for his first five days of life. He was taken off the antibiotics on December 17, 2008, but remained in the neonatal intensive care unit (NICU) of UIC. On December 26, 2008, Denise's C-section incision opened. Testing of the incision area was positive for GBS.

¶ 10 Between December 18, 2008, and January 3, 2009, Marques experienced incidents of slow heart rate, apnea

, and low temperatures. On January 2, 2009, he had to be resuscitated, and he was restarted on antibiotics. On January 4, 2009, Marques tested positive for GBS and was diagnosed with meningitis, which resulted in significant brain damage.

¶ 11 II. Pretrial Proceedings

¶ 12 A. The Complaint

¶ 13 On March 28, 2012, the plaintiffs filed their medical malpractice complaint against WSMC. The first amended complaint was filed on October 12, 2012. Count I alleged that WSMC was negligent in that it failed to timely assess, diagnose, and treat fetal distress and/or infection in the face of the signs and symptoms; failed to perform the appropriate tests to rule out infections; failed to properly staff its labor and delivery floor; failed to timely call for an appropriate consultation; failed to properly monitor Denise; discharged Denise prematurely; failed to follow the "chain of command" to preclude Denise's premature discharge; and failed to follow up with Denise. The plaintiffs alleged further that WSMC's negligence resulted in personal and financial injuries to Marques. Count II was brought pursuant to the Rights of Married Persons Act ( 750 ILCS 65/15 (West 2012) ) (commonly known as the Family Expense Act).³ Thereafter, the parties engaged in extensive discovery.

¶ 14 B. Pretrial Rulings

¶ 15 1. Barring Rebuttal Witness Testimony

¶ 16 On January 13, 2016, Circuit Court Judge Janet Adams Brosnahan ordered that the plaintiffs disclose their rebuttal experts by January 20, 2016. On January 20, 2016, the plaintiffs disclosed Dr. Barry Schifrin as their rebuttal expert.

¶ 17 On January 22, 2016, WSMC filed an emergency motion to bar Dr. Schifrin's testimony. WSMC pointed out that on January 8, 2016, the parties had taken the evidence deposition of Dr. Sarah Kilpatrick, an obstetrician/gynecologist, who had treated Marques. To allow the plaintiffs' to present Dr. Schifrin's testimony would deprive WSMC of the opportunity to effectively and adequately cross-examine Dr. Kilpatrick. In the alternative, WSMC requested that Dr. Kilpatrick's evidence deposition be stricken, and the parties be permitted to redepose Dr. Kilpatrick following the completion of Dr. Schifrin's deposition.

¶ 18 On January 29, 2016, a hearing was held on WSMC's motion to bar Dr. Schifrin's rebuttal testimony. In ruling on the motion, Judge Brosnahan stated as follows:

"Any order or ruling I make today shouldn't be construed as a sanction. It's a remedy in the interest of promoting the goals of allowing the parties to have a fair trial on the merits.

And it is unfair and unduly prejudicial to allow the plaintiff[s] to get evidence testimony and then disclose an expert on the very same topics that were addressed by the witnesses in evidence.

So, I believe the least severe remedy I can fashion if the plaintiff[s] truly believe[ ] that they need this rebuttal testimony is to strike the evidence testimony and give you a chance to do a do-over. If the plaintiff[s] [do not] want to do that, then the plaintiff[s] ha[ve] to forgo the opportunity to disclose rebuttal opinions now on testimony that's already been received in evidence."

Judge Brosnahan ordered Dr. Kilpatrick's evidence deposition stricken, unless the plaintiffs withdrew Dr. Schifrin's rebuttal disclosure by January 31, 2016. The plaintiffs chose to withdraw Dr. Schifrin's rebuttal disclosure.

¶ 19 2. Motions in Limine

¶ 20 a. Denise's Prior Abortion

¶ 21 The plaintiffs' motion in limine No. 30 sought to prevent the defense from making any reference, directly or indirectly, to the fact that Denise had an abortion. The trial court granted the motion, "[b]ut with the caveat that the defense can—may say that she had a prior pregnancy. And all witnesses will be cautioned to not say anything other than she had an earlier pregnancy."

¶ 22 b. Cumulative Testimony

¶ 23 WSMC's motion in limine No. 13 sought an order excluding cumulative testimony on standard of care and causation testimony, specifically by Drs. Edith Gurewitsch (maternal fetal medicine), Carolyn Crawford (neonatology), and Armando Correa (pediatric infectious diseases) and nursing expert, Debra Sperling, RN.

¶ 24 As to cumulative causation testimony, the trial court granted the motion as to the three doctors and by agreement as to Ms. Sperling. The court explained its ruling as follows:

"Now with regard to the [maternal fetal medicine] person and the [infectious disease] person, I can see where they might have slightly different testimony about causation, all the business about [GBS] and the time it takes to incubate or whatever a better word would be, all of that might be something that [infectious disease] person would address in more detail. And that is going to be up to you."

¶ 25 In discussing the standard of care, the plaintiffs' attorney explained that of the experts he disclosed, Dr. Gurewitsch, the maternal fetal medicine expert, would be testifying as to the standard of care applicable to Dr. Johnson with regard to the allegations of negligence against him. The following colloquy occurred:

"THE COURT: So far as the other witnesses, the only one who can testify

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