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FOURTH DIVISION
November 16, 2000

This appeal arises out of a medical malpractice action. Following a jury trial, a verdict was rendered in favor of alldefendants and against plaintiffs.

The undisputed facts established at trial were that onOctober 29, 1992, Elizabeth Mitchell, who was 34 5/7 weekspregnant, presented herself to the Palos Community Hospital emergency room complaining of nausea, dizziness and light-headedness. She was seen by defendant, Dr. Gregg Goldberg, whoafter an examination reached a diagnosis of "near syncope," whichmeans fainting or swooning. Although he was informed thatplaintiff was pregnant and that Dr. Gumpel was her treatingphysician, he did not contact Dr. Gumpel or undertake fetalmonitoring. He released plaintiff and sent her home, where shecontinued to experience ill-being and vomiting.

That evening plaintiff went to see her physician, defendantDr. Gumpel, who had her admitted to Palos Community Hospital. Atthat time, plaintiff was placed on fetal monitoring; however, Dr.Gumpel did not order an ultrasound right away or a complete bloodcount (CBC) work-up. The fetal monitoring did indicate someabnormalities. After reviewing those monitoring tapes and anultrasound that was ultimately done, Dr. Gumpel made a diagnosisof abruptio placenta, meaning that the placenta had torn awayfrom the surrounding membranes, and ordered a caesarian section. The infant was delivered in a condition of ill-being described ashypovolemic shock and now suffers from the life-long condition ofcerebral palsy.

The gravamen of plaintiffs' complaint is that defendantsfailed to conduct timely fetal monitoring or ultrasound testing,failed to order a CBC work-up, although they knew or should haveknown that such testing was appropriate and necessary, and thatDr. Goldberg failed to immediately inform Dr. Gumpel of theemergency care rendered to her patient, Elizabeth J. Mitchell. Other complaints are that Dr. Gumpel failed to timely perform acaesarean section upon reaching a diagnosis of abruptio placenta,which deprived the infant's brain of oxygen, proximately causinghis injuries.

The defense has maintained throughout these proceedings thatthe injuries suffered by the fetus occurred prior to Elizabeth'spresenting herself to the emergency room on October 29, 1992, andthat those injuries were already complete and irreversible by thetime she came under defendants' care. While at her place ofemployment, plaintiff fainted and experienced vomiting andnausea. Defendants maintain that episode was symptomatic of aloss of blood caused by the placental abruption. Experttestimony was rendered on behalf of defendants that based uponseveral factors, which included the infant's high level ofnucleated red blood cells, the insult or injury was complete andirreversible before defendants ever saw and examined Mrs.Mitchell.

The issues we are called upon to decide are (1) whether thecourt erred in admitting the expert opinions pursuant to Frye v.United States, 293 F. 1013 (D.C. Cir. 1923); (2) whether thecourt erred by allowing one of plaintiffs' experts to beimpeached with a deposition from an unrelated lawsuit whendefendants did not produce the deposition prior to trial; (3)whether the court erred in allowing questioning of one ofplaintiff's expert witnesses on a "nonmedical" matter; and (4)whether the court erred in allowing one of defendants' expertwitnesses to give testimony regarding the hospital's policies andprocedures on electronic fetal monitoring that was neverdisclosed pursuant to Rule 213 (166 Ill. 2d R. 213).

Prior to trial, plaintiffs filed a motion to bar thetestimony of Dr. Jeffrey Phelan on the causation issue pursuantto Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

A lengthy hearing was conducted. The defense introduced thedepositions of Drs. Phelan, Cefalo, Polk, and Salafia. Theplaintiffs introduced the depositions of Drs. Cetrulo andRothstein.

Dr. Phelan has written articles relating to assessing thesignificance of nucleated red blood cells (NRBC) in evaluating aneurological injury in an infant. One such article, entitled"Nucleated Red Blood Cells: An Update on the Marker for FetalAsphyxia," appeared in the November 1996 issue of the AmericanJournal of OB/GYN. He has also published abstracts in theJanuary 1997 issue of the American Journal of Obstetrics andGynecology, wherein he conducts a comparison of nucleated redblood cells. He has written a paper on acute fetal asphyxia andits relationship to organ system dysfunctions, which coversnucleated red blood cells. He also published a paper dealingwith acute asphyxia that discusses nucleated red blood cells, andhas written an article for the April 1997 issue of OB/GManagement, dealing with blood markers to date fetal braininjury. Dr. Phelan has been conducting this research for over 20years.

He opines that based upon the initial level of the NRBCs,which was 66%, the clearance of the NRBCs, which was almost 400hours, the initial platelet count, the onset of seizures, whichwas 118 hours after birth, and the nonreactive fetal heart rate,the fetus suffered a preemergency room visit insult, i.e., aplacental abruption, which caused a neurologic injury to thefetus. He opined that the injury occurred while Mrs. Mitchell wasat work, an hour or so before her arrival at the emergency roomand approximately 24 hours prior to the birth of Christian, andthat the abruption was not diagnosable until the time of deliverybecause that is the only time such an injury can be confirmed. According to Dr. Phelan, this particular abruption was extremelyrare because it was concealed or silent, meaning there was novaginal bleeding or pain in the stomach, abdomen or back. Thepresence of one or all of these symptoms would indicate anabruption, and while one may suspect an injury based upon theultrasound, delivery is the first time a confirmed diagnosis ofthe condition can be made. It was his opinion that an ultrasoundwould not have shown anything as far as an abruption wasconcerned. At trial, Dr. Phelan testified that, based upon areasonable degree of scientific and medical certainty, theabruptio placenta and its resulting irreversible damage to thefetus was completed prior to the mother presenting herself at theemergency room.

During his studies on the significance of NRBCs inattempting to fix the time of an intrapartum neurologic insult,Dr. Phelan has excluded children who were anemic because of apossible relationship between NRBC counts and the underlyingpresence of anemia. Premature infants have also been excludedfrom this study because premature babies are born with above-normal NRBC counts. Under these studies, Dr. Phelan hasestablished the numerical cutoff on hematocrit below 40%;Christian's hematocrit at birth was around 34%. Dr. Phelanopined, however, that NRBCs in premature infants are immaterial,unless the child is under 32 weeks, and that Christian's anemiacontributed minimally to the nucleated red blood cell count foundat the time of his birth. Dr. Phelan to date has not conductedany research on anemia and its relationship to NRBCs. Hisstudies do show that, by looking at nucleated red blood cells incertain kinds of babies and at the clearance rate after birthwhich it takes for those nucleated red blood cells to disappear,it may be possible to determine when an injury has occurred. Dr.Phelan opined that, in the instant case, the nucleated red bloodcells are but one indicator of an insult that predated themother's admission to the hospital and her arrival at theemergency room on the afternoon of October 29. The otherindicators are the almost 400 hours it took for the NRBCs toreturn to zero; the initial platelet count; the onset ofseizures, which was 118 hours after birth; and the nonreactivefetal heart rate pattern.

Dr. Phelan also testified at trial that his hypothesis isentitled to general acceptance in the medical community.

Defense witness Dr. Michael Painter, a child neurologist,opined that, based upon a reasonable degree of medical andpediatric-neurological certainty as well his training andexperience, the complained-of injury occurred about one or twoo'clock on the afternoon of October 29, and that the injury setin place an "irreversible cascade of events" resulting in theneurologic injury that the child sustained. Once the fragilestructure of the brain is injured, which in his opinion occurredat the plaintiff's place of employment when she experiencedsyncope, it was irreversible, and earlier intervention would nothave altered the subsequent events.

Dr. Carolyn Salafia, a board-certified anatomic andpediatric pathologist, testified during surrebuttal that afterher review of the emergency room records, the community hospitalrecords of the infant and those of the hospital to which he wastransferred, Dr. Phelan's articles and the depositions of severalphysicians, including Dr. Phelan, she determined that the infanthad an elevated NRBC immediately after birth of 66 per 100 whiteblood cells. She has read a number of articles dealing withNRBCs and has, herself, published two articles on the subject. She has read two articles of Dr. Phelan's that were published inthe American Journal of Obstetrics and Gynecology and the GreenJournal for Obstetrics and Gynecology. It was her opinion, basedupon a reasonable degree of medical certainty, that Dr. Phelan'swork is generally accepted in the field of medicine. Shetestified that the journals in which Dr. Phelan is published arehighly selective and that only a minority of manuscripts whichare submitted are ever published. Specifically, she testifiedthat in order for his manuscripts to have been accepted, theywould have had to have passed at least one, if not two, rounds ofpeer review. Based upon that highly critical and selectivereview process, it was her opinion that his work on NRBCs isgenerally accepted in the medical community.

Dr. Charles Bird, who is board certified in obstetrics andgynecology, testified on behalf of plaintiff that Dr. Goldbergdeviated from the accepted standards of care for a doctor in hisspecialty when he failed to evaluate the fetus, which had a rapidheart rate, and failed to call the patient's obstetrician and lether decide what should be done. It was known to Dr. Goldbergthat the mother had fainted, and with that kind of symptom bothmother and baby should have been evaluated, which was not done.As to Dr. Gumpel, plaintiff's physician, Dr. Bird testified shedeviated from the standard of care in her specialty because shedid not order a complete blood count when she saw Mrs. Mitchell,and that once it became apparent that a placental abruption hadoccurred, the decision to perform a caesarean section in anattempt to rescue an oxygen-deprived baby was done with unduedelay. The fetal monitoring tracings indicated that the baby'sheart was not reacting appropriately to the stress and stimulipresented to it. He further opined that it was a deviation fromthe standard of care for the nurse on duty who evaluated thosetracings to fail to see and appreciate the lack of variability. On cross-examination, Dr. Bird was asked if he recalledgiving a deposition in an unrelated case. The specific passageaddressed was the witness' response to a question regarding thecause of diminished long-term variability. In that deposition,Dr. Bird testified that the cause is unknown, that no one couldanswer that question, and that long-term and short-termvariability on fetal monitor strips is not predictive ofanything.

Dr. John O'Grady, who is the director of obstetrics at BayState Medical Center in Springfield, Massachusetts, and boardcertified, testified to a reasonable degree of medical certaintyon behalf of plaintiffs that the evaluation of the fetus by Dr.Goldberg fell below the acceptable standard of care because,based upon the evidence of a syncopal episode by the motherduring a period of gestation with an elevated fetal heart rate,he failed to undertake further medical intervention.

On cross-examination, Dr. O'Grady testified that, withrespect to the issue of notification of Dr. Gumpel by Dr.Goldberg, Dr. Goldberg's failure to notify Dr. Gumpel probablywould not have made a difference.

Defendants called Dr. Norbert Gleicher. During histestimony he gave an opinion regarding the policies andprocedures of Palos Hospital inasmuch as one of the allegationsagainst the hospital was the nurses' failure to follow thehospital's policies and procedures with respect to electronicfetal monitoring. Dr. Gleicher stated that, in his opinion to areasonable degree of medical certainty, those policies andprocedures had nothing to do with this case because they refer toactive labor, and Mrs. Mitchell was not in labor when she cameinto the hospital.

The first issue we are called upon to decide is whether theadmission of the opinion testimony from Drs. Phelan, Painter andSalafia contravened Frye v. United States, thereby constitutingreversible error. The admission of scientific evidence inIllinois is governed by the test set forth in Frye v. UnitedStates, 293 F. 1013 (D.C. Cir. 1923). The classic statement ofthat test found in Frye is as follows:

"Just when a scientific principle or discoverycrosses the line between the experimental anddemonstrable stages is difficult to define. Somewhere in this twilight zone the evidentialforce of the principle must be recognized, andwhile courts will go a long way in admittingexpert testimony deduced from a well-recognizedscientific principle or discovery, the thing fromwhich the deduction is made must be sufficientlyestablished to have gained general acceptance inthe particular field in which it belongs." Frye,293 F. at 1014.

Evidence is admissible when the scientific principle onwhich it rests has gained general acceptance in the relevantscientific community. People v. Dalcollo, 282 Ill. App. 3d 944,951 (1996). The determination whether to admit expert testimonyis committed to the discretion of the court, and the sameprinciple applies to expert testimony concerning a new scientifictechnique. People v. Eyler, 133 Ill. 2d 173 (1989). Accordingly, we shall determine whether the trial court'sadmission of the testimony was an abuse of discretion.

In determining whether a novel scientific procedure isgenerally accepted in the scientific community, the issue isconsensus versus controversy over a particular technique. Dalcollo, 282 Ill. App. 3d at 957. Frye requires that the thingfrom which the deduction is made, e.g., the procedures upon whichthe results are based, must be generally accepted.

Drs. Phelan, Salafia and Painter testified that Phelan'stheory of using the level of NRBCs, along with the otherenumerated factors, at the time of birth to determine the timingof the fetal injury or placental abruption is generally acceptedin the medical community based upon Dr. Phelan's articles, whichhave been published in highly prestigious medical journals. Dr.Salafia testified to the very competitive and selective nature ofaccepting articles for publication, which must undergo intensivepeer review, and that Dr. Phelan's theory has been put inpractice at Children's Memorial Hospital in Chicago. There isenough evidence in the record for us to determine that the courtdid not abuse its discretion in admitting Dr. Phelan's opinion.

There are several ways a proponent of evidence subject toFrye can prove the "general acceptance" of the profferedevidence. The proponent may use scientific publications, priorjudicial decisions, practical applications, as well as thetestimony of scientists as to the attitudes of their fellowscientists. People v. Kirk, 289 Ill. App. 3d 326, 332 (1997).

Plaintiff has pointed out that Dr. Phelan's studies on NRBCsare new and have not been tested. However, as professor Grahamhas written:

"Newness alone is not a bar to admissibility, forevery scientific technique that is eventuallyaccepted must have its first day in court. Moreover, neither lack of absolute certainty norlack of uniformity of expert opinion precludes acourt from finding on the basis of expert witnesstestimony and other evidence admitted at trialthat *** the scientific test's reliability is, orclearly would be when brought to the attention ofthe appropriate experts, generally accepted in theparticular scientific field in which the tetbelongs." M.Graham, Cleary & Graham's Handbook ofIllinois Evidence