Find Legal Information

SIXTH DIVISION

August 10^th, 2001

No. 1-99-4049

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiffs, Rowena and Roberto Regala, brought a medical malpractice action individually andon behalf of their infant son, Ryan Regala, against defendants, Rush North Shore Medical Center (thehospital), Arlene Boyle, R.N., Rose Monahan, R.N., Doctor Bernard Michael Nagel and Women'sHealth Consultants (WHC). A jury verdict was rendered in favor of all defendants. The circuit courtdenied plaintiffs' posttrial motion regarding nurse Boyle, nurse Monahan, and the hospital (hereinaftercollectively referred to as defendants), but remanded for a new trial as to Doctor Nagel and WHC, basedupon their untimely withdrawal of a disclosed expert witness. On appeal, plaintiffs argue that the courterred by: (1)denying their motion for a new trial against defendants; (2) refusing to give certain juryinstructions; (3) allowing the hospital's expert to give previously undisclosed Supreme Court Rule 213(g)(177 Ill. 2d R. 213(g)) opinion testimony; (4) barring questions about a Christmas party attended bydefendant Monahan; and (5) denying plaintiffs' motion for sanctions. We reverse, and remand for a newtrial.

Plaintiff received prenatal care from Doctor Nagel, a board-certified obstetrician andgynecologist. On December 19, 1990, six days after her expected due date, plaintiff experiencedabdominal discomfort and saw bright red blood in her panty liner. Plaintiff called Doctor Nagel, whosent her to the hospital for a non-stress test (NST) to establish fetal well-being.

On December 19, plaintiff arrived at the hospital, where nurse Boyle attached plaintiff to anexternal fetal monitor to do the NST. By 11 a.m., nurse Boyle charted her NST impressions, which werenormal and reassuring of fetal well-being.

Nurse Boyle took plaintiff's blood pressure, which was 142/102. Plaintiff's 142/102 bloodpressure was elevated and abnormal and placed her at risk for preeclampsia and placental abruption. Doctor Nagel testified that he asked nurse Boyle on December 19 whether plaintiff was doing okay, andthat nurse Boyle responded "yes." Nurse Boyle testified that she would not have stated that plaintiff wasdoing okay unless she had retaken plaintiff's blood pressure and determined that it was normal. However, plaintiff's chart reflects only the 142/102 blood pressure.

Doctor Nagel performed a vaginal exam on plaintiff on December 19; no apparent, activebleeding was found during the exam. Doctor Nagel discharged plaintiff and instructed her to "follow-up" on December 20.

At noon on December 20, Doctor Nagel examined plaintiff in his office. During the exam,plaintiff's blood pressure was 164/98. This was the first time in plaintiff's pregnancy that Doctor Nagelwas aware of a significantly elevated blood pressure. Nagel also found a trace of protein in plaintiff'surine. Plaintiff's elevated blood pressure and the protein in her urine indicated that plaintiff was at riskfor preeclampsia.

At 12:20 p.m. on December 20, Doctor Nagel admitted plaintiff to the hospital's labor anddelivery unit, where she came under the care of nurse Monahan. Nurse Monahan testified that she didnot have time to look at plaintiff's prenatal chart prior to her arrival at the hospital.

Nurse Monahan took plaintiff's blood pressure, which was now 163/97. Nurse Monahanperformed a urine test, which showed an abnormal amount of protein, another indicator of preeclampsia. Nurse Monahan applied the fetal monitor to plaintiff and determined that the fetus lacked good heartaccelerations, perhaps because it was sleeping. To wake the fetus, nurse Monahan gave plaintiff a boluscontaining a large quantity of fluid and instructed her to stay on her left side.

Doctor Nagel arrived at the hospital about 1 p.m. and examined plaintiff. After learning thatplaintiff's blood pressure had remained elevated and that she had a significant amount of protein in herurine, Doctor Nagel ruptured plaintiff's bag of water and attached a fetal scalp electrode to the fetus'head to monitor its heart rate.

After rupturing the water bag and inserting the fetal scalp electrode, Doctor Nagel returned tohis office. Nurse Monahan stayed with plaintiff for approximately 10 to 15 minutes after Doctor Nagelleft, then she exited plaintiff's room and went to a room behind the nurse's station.

A few minutes later, plaintiff looked at the fetal monitor and noticed that the fetal heart rate haddropped. Plaintiff pushed the nurse's call button, but there was no response. Plaintiff then told herhusband, Roberto, to go find a nurse.

Roberto went down the hall to the nurse's station, but nobody was there. He then saw a roomfilled with people, food, and decorations. Someone in the room approached Roberto and asked him ifhe needed help. Roberto stated that he needed to find his wife's nurse because he was concerned aboutthe numbers on the fetal monitor. Nurse Monahan then walked over to Roberto, and they went backto plaintiff's room.

When nurse Monahan entered the room, she looked at the monitor and saw that the fetus' heartrate had dropped suddenly at about 1:20 p.m. Nurse Monahan knew that the fetus was in distress andshe began intrauterine resuscitation. She also summoned Doctor Nguyenphuc, an obstetrician on thelabor and delivery unit, who determined that plaintiff was experiencing a placental abruption.

Someone on the labor and delivery unit contacted Doctor Nagel, who immediately returned tothe hospital and performed an emergency cesarean (C-section) on plaintiff. The baby (Ryan) wasdelivered at 1:43 p.m., about 22 minutes after the drop in the fetal heart rate. Ryan was born braindamaged.

After the delivery, Doctor Nagel found a 25% placental abruption and evidence of preeclampsia. According to the hospital's expert, Doctor Vannucci, Ryan's brain damage began at 1:36 p.m. DoctorVannucci testified, to a reasonable degree of medical certainty, that Ryan would be normal today had hebeen delivered by 1:33 p.m.

Plaintiffs claimed that Doctor Nagel was negligent for: (1) failing to admit plaintiff for furtherassessment and monitoring on December 19; (2) failing to perform a C-section on December 20 shortlyafter admitting plaintiff to the hospital; (3) failing to attempt intrauterine resuscitation on December 20;(4) rupturing plaintiff's water bag on December 20; and (5) leaving plaintiff after rupturing her waterbag on December 20.

Plaintiffs claimed that nurse Boyle was negligent for (1) failing to advise Doctor Nagel thatplaintiff had an elevated blood pressure of 142/102 on December 19; and, (2) telling Doctor Nagel thatplaintiff was "okay," knowing that plaintiff had an elevated blood pressure of 142/102.

Plaintiffs claimed that nurse Monahan was negligent for: (1) failing to review plaintiff's prenatalrecords on December 19; (2) failing to advise Doctor Nagel about the presence of a nonreassuring fetalmonitor strip on December 20; (3) failing to perform intrauterine resuscitation on plaintiff on December20 when the fetus failed to respond to the bolus of fluid; (4) failing to call Doctor Nagel and tell himabout the protein in plaintiff's urine and the fetus's failure to respond to the bolus of fluid; (5) failing toask Doctor Nagel to remain with plaintiff after rupturing her water bag; (6) leaving plaintiff after DoctorNagel ruptured the water bag; and (7) failing to respond in a timely manner to the call button used byplaintiff.

The jury returned a verdict in favor of all defendants. The circuit court subsequently remandedfor a new trial against Doctor Nagel and WHC due to their improper withdrawal of an expert witness. Plaintiffs filed this timely appeal.

Plaintiffs argue that the trial court abused its discretion by allowing defense expert Doctor JohnElliott to testify with new opinions not previously disclosed pursuant to Supreme Court Rule 213(g) (177Ill. 2d R. 213(g)). Defendants argue that plaintiffs waived this issue by failing to raise it in their posttrialmotion. Mazurek v. Crossley Construction Co., 220 Ill. App. 3d 416, 422 (1991). Our review of therecord indicates that within 30 days of the entry of judgment, the circuit court granted plaintiffs anextension of time to raise allegations of error in their posttrial motion. Plaintiffs raised the Rule 213 issuewithin the time extension allowed by the court. Accordingly, plaintiffs adequately preserved the issuefor review.

Rule 213(g) states:

"An opinion witness is a person who will offer any opinion testimony. Upon written interrogatory, the party must state:

(i) the subject matter on which the opinion witness isexpected to testify;

(ii) the conclusions and opinions of the opinion witness and thebases therefor; and

(iii) the qualifications of the opinion witness;

and provide all reports of the opinion witness." 177 Ill. 2d R. 213(g).

The committee comments to Rule 213 state that, "in order to avoid surprise, the subject matterof all opinions must be disclosed pursuant to this rule *** and that no new or additional opinions willbe allowed unless the interests of justice require otherwise." 177 Ill. 2d R. 213(g), Committee Comments. Thus, Rule 213 is mandatory and strict compliance is required. Seef v. Ingalls Memorial Hospital, 311Ill. App. 3d 7, 21 (1999).

Here, in their response to plaintiffs' Rule 213 interrogatories, defendants disclosed DoctorElliott's opinion that Ryan suffered all of his neurological damage as a result of a "sudden catastrophicevent" (the placental abruption) that occurred at about 1:22 p.m. on December 20. Doctor Elliott'sopinion was consistent with plaintiffs' theory that Ryan would have been born undamaged if he had beendelivered prior to the placental abruption on December 20.

At trial, though, Doctor Elliott testified on redirect examination that "the exact same sequenceof events" (i.e., the placental abruption leading to Ryan's neurological damage) would have occurred evenif Doctor Nagel had delivered Ryan on December 19. Doctor Elliott's testimony contradicted plaintiffs'theory that defendants caused Ryan's injuries by delaying Ryan's delivery until the afternoon ofDecember 20. Doctor Elliott's testimony was a new opinion not previously disclosed pursuant toSupreme Court Rule 213(g).

Defendants argue that plaintiffs opened the door during cross-examination of Doctor Elliott forthe testimony elicited on redirect examination. We disagree. On cross-examination, plaintiff asked:

"Q. Doctor, would you agree that if the baby had been delivered within four tosix hours of the strip, the NST on the 19th, that the baby would have been deliveredneurologically intact based on that strip?

A. If the C-section had been done, yes, I would agree with that."

Doctor Elliott's testimony on cross-examination was consistent with his disclosed Rule 213opinion that Ryan's neurological damage was caused by the placental abruption on December 20. Bycontrast, on redirect examination Doctor Elliott went beyond the scope of cross-examination by testifyingto new opinions not previously disclosed under Rule 213, specifically, that Ryan's neurological damagewould have occurred even if Doctor Nagel had delivered him on December 19. As discussed, those newopinions were inadmissible. The effect of the erroneous admission of Doctor Elliott's undisclosedopinions mandates reversal and remand to the trial court for a new trial. See Seef, 311 Ill. App. 3d at 24("We strongly urge practitioners that, if an opinion is important to the theory of one's case, it is essentialthat it and the bases therefor be disclosed. This is a bright line rule and must be followed").

As the proponent of the witness, defendant bore the obligation to ensure that Doctor Elliott notexceed previously disclosed opinions. The penalty for the introduction of such inadmissible testimonyis exacted from the proponent of the witness, regardless of whether the testimony comes out on direct,cross, or redirect examination. Experts must be made aware by their attorney of the importance that theiropinions at trial are consistent with their pre-trial disclosures.

Defendants cite case law interpreting former Rule 220. Such case law is irrelevant here. EffectiveJanuary 1, 1996, Rule 213 (166 Ill. 2d R. 213, now 177 Ill. 2d R. 213) replaced Supreme Court Rule 220(134 Ill. 2d R. 220) in setting forth the disclosure requirements for opinion witnesses. As discussed, theappellate court has interpreted Rule 213 as providing a mandatory, "bright line rule" which must befollowed by practitioners (see Seef, 311 Ill. App. 3d at 24); further, our supreme court has not recognizedany exceptions to Rule 213. Thus, cases interpreting former Rule 220 and the various exceptions theretoare not persuasive.

Next, plaintiffs argue that the court erred in giving the following instruction based on IllinoisPattern Jury Instructions, Civil, No. 105.01 (3d ed. 1990) (hereinafter IPI Civil 3d):

"In providing professional services to [plaintiff], an obstetrical nursemust possess and apply the knowledge and use the skill and care ordinarily usedby a reasonably well-qualified obstetrical nurse under the circumstances similarto those shown by the evidence. A failure to do so is professional negligence.

The only way in which you may decide whether an obstetrical nursepossessed and applied the knowledge and used the skill and care which the lawrequired of her is from expert testimony presented at trial. You must not attemptto determine this question from any personal knowledge you have."

Plaintiffs argue that IPI Civil 3d No. 105.01 improperly compels the jury to ignore all admittedevidence except for expert testimony. We disagree. IPI Civil 3d No. 105.01 does not instruct the jurythat it can only consider expert testimony in reaching a verdict. Rather, IPI Civil 3d No. 105.01 instructsthe jury that it must utilize the expert medical testimony to determine the standard of care and anydeviation therefrom. IPI Civil 3d No. 105.01 properly states the law. See e.g., Jones v. Chicago HMOLtd., 191 Ill. 2d 278 (2000); Advincula v. United Blood Services, 176 Ill. 2d 1 (1996)(in professionalnegligence cases, plaintiff bears the burden of establishing the standard of care through expert witnesstestimony.)

Plaintiffs argue that the court should have given the parenthetical in IPI Civil 3d No. 105.01,which states that the jury may also consider "evidence of professional standards or conduct" indetermining the standard of care and any deviation therefrom. Plaintiffs cite cases holding that thestandard of care required of a hospital in an institutional negligence case may be shown by evidence ofprofessional standards and conduct. The cases cited by plaintiffs are inapposite, as plaintiffs' allegationsare not premised on institutional negligence, but rather on the alleged negligence of the hospital's twoemployee nurses. See Advincula, 176 Ill. 2d at 31 (the tort of institutional negligence does not encompassa hospital's responsibility for the conduct of its medical professionals).

Plaintiffs also cite Kramer v. Milner, 265 Ill. App. 3d 875 (1994), which held that the circuit courtabused its discretion in refusing to give the parenthetical "evidence of professional standards or conduct"where the expert witnesses extensively relied on professional standards in deducing a standard of care.Our review of the record here reveals that plaintiffs' expert Charlotte Daniels similarly relied onprofessional standards in deducing a standard of care. Accordingly, the court erred in refusing to givethe parenthetical.

For the foregoing reasons, we reverse, and remand for a new trial. As a result of our dispositionof this case, we need not address plaintiffs' other arguments for reversal.

Reversed and remanded.

CAMPBELL, P.J., and GALLAGHER, J., concur.