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09/22/94 JENNIFER SIMMONS v. UNIVERSITY CHICAGO

September 22, 1994

JENNIFER SIMMONS, ADM'R OF THE ESTATE OF TOUSSANT DEVON SIMMONS, A MINOR, DECEASED, ET AL., APPELLEES,
v.
UNIVERSITY OF CHICAGO HOSPITALS AND CLINICS, D/B/A UNIVERSITY OF CHICAGO MEDICAL CENTER, ET AL., APPELLANTS.



Nickels

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Defendants, University of Chicago Hospitals and Clinics and Luis Cibils, M.D., appeal from an appellate court decision affirming a $1.6 million verdict for plaintiffs in a medical malpractice case, which involved the death of plaintiffs' son shortly after birth. We granted defendants' petition for leave to appeal (134 Ill. 2d R. 315) and affirm.

FACTS

Plaintiff Jennifer Simmons was admitted to defendant hospital on April 5, 1983, between approximately 10 and 10:30 a.m. At that time, Jennifer was in active labor. The hospital staff examined Jennifer and placed her on a fetal monitor. A decision was made to rupture Jennifer's membrane and attach a scalp electrode to the child. When Jennifer's membrane was ruptured around 11:40 a.m., she passed a thick meconium, indicative of fetal distress due to lack of oxygen.

A significant deceleration in fetal heart rate was observed at 12:20 p.m., at which time Dr. Luis Cibils, the attending physician, was notified. Dr. Cibils ordered an emergency Caesarean section and Jennifer was brought to an operating room. At 12:28 p.m. the fetal heart rate recovered, and at 12:30 p.m., Dr. Cibils canceled the emergency Caesarean section. Jennifer was later brought back to the labor room.

A second deceleration occurred at 3:37 p.m., and Jennifer was brought back to the operating room where an emergency Caesarean section was performed at 3:57 p.m. The child had a heartbeat when delivered, but was in distress. The child's umbilical cord was wrapped around his arms, legs, and body. Attempts to resuscitate the child failed, and he later died of perinatal asphyxia.

Plaintiff's filed suit in the circuit court of Cook County for wrongful death under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 1 et seq.). The jury found for plaintiffs and awarded damages as follows: (1) $900,000 for Jennifer's loss of society, and (2) $700,000 for the father's loss of society. The appellate court affirmed. 247 Ill. App. 3d 177.

ISSUES

Defendants raise two issues on appeal: (1) whether the appellate court erred in affirming the trial court's allowance of a missing-witness instruction and plaintiffs' counsel's corresponding argument (Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1989) (hereinafter IPI Civil 3d No. 5.01)); and (2) whether the appellate court erred in affirming the trial court's granting of plaintiffs' motion in limine barring evidence that plaintiffs had two children after the death of the instant child.

I.

A. The Missing-Witness Instruction

Defendants first argue that the trial and appellate courts erred in finding the jury properly received IPICivil 3d No. 5.01, the missing-witness instruction. To determine whether the courts erred, we must look to the factual basis given at trial for the instruction.

Defendants called Dr. Cibils to testify as both an expert and occurrence witness. On cross-examination, plaintiffs asked Dr. Cibils about a notation on Jennifer's chart, an interlineation written under Dr. Judith Hibbard's name, which read: "Late decelerations after epidural recovery noted." According to the chart, these late decelerations occurred at 3:25 p.m., after which time Dr. Cibils ordered Jennifer moved from the operating room back to the labor room. Dr. Cibils disagreed with the notation under Dr. Hibbard's name, that late decelerations had occurred at 3:25 p.m. However, assuming that such late decelerations had occurred at 3:25 p.m., Dr. Cibils admitted that it would have been against the standard of care to remove Jennifer from the operating room and transfer her back to the labor room at that time.

At the jury instruction conference, plaintiffs tendered IPI Civil 3d No. 5.01, which allows the jury, under certain circumstances, to infer that a witness, not produced by a party capable of producing the witness, would have testified adversely to that party. Plaintiffs argued that such an instruction was proper because defendants did not produce every doctor and staff member of the hospital present during Jennifer's labor and delivery. The trial court, however, found the instruction improper for any employee no longer employed by defendant hospital. Such an employee would not be under the control of the hospital. Only Dr. Hibbard remained employed by the defendant hospital.

Plaintiffs' counsel argued that the missing-witness instruction was warranted concerning Dr. Hibbard because she wrote the notation of late decelerations on Jennifer's chart. Plaintiffs' counsel further noted that Dr. Cibils acknowledged that if late decelerations had infact occurred as noted on the chart, the transfer of Jennifer from the operating room to the labor room would have deviated from the standard of care.

Defense counsel responded that the handwriting on the chart did not appear to be Dr. Hibbard's, though the notation was under Dr. Hibbard's signature. Defense counsel argued that, as such, an insufficient basis existed upon which to allow the missing-witness instruction.

The court responded that even if the notation was not Dr. Hibbard's, it had to be made by one of the defendant hospital's employees. Defense counsel then asked to reopen the case to call Dr. Hibbard to the stand and testify regarding the notation.

In response, plaintiffs' counsel asked to withdraw the instruction, noting that he would merely argue evidence of the missing witness to the jury. The trial court, finding the instruction too important to not know who wrote the notation, allowed defendants to reopen their case and call Dr. Hibbard to the stand. Plaintiffs' counsel withdrew the instruction, wanting the case to go to the jury that day.

The trial court thereafter informed plaintiffs' counsel that it was concerned about how far plaintiffs' counsel would go suggesting missing witnesses. The court instructed plaintiffs' counsel that he could "get as close to 501 [sic] as you can get without stepping over in your mind's eye."

Later, after recess, the trial court sua sponte reopened the Discussion on the missing-witness instruction concerning Dr. Hibbard. The court noted that although the attorneys probably did not know that the notation on Jennifer's chart would have any impact on the case, Dr. Cibils had to know of the notation and its significance, and that it was contrary to his testimony. The court further noted that Dr. Cibils treated the notation as Dr. Hibbard's on the stand. The court concluded thatit was defendants' duty, not plaintiffs', to call Dr. Hibbard to explain the notation.

Defense counsel then stated that if the instruction was "being resubmitted" he would "want to consider" making a motion to reopen the case. The trial court again discussed the issue and concluded that the missing-witness instruction would be given. The trial court reasoned that Dr. Hibbard was present during the relevant period and that a notation existed on Jennifer's chart that, whether written by Dr. Hibbard or someone else, was written under Hibbard's name and contained statements adverse to defendants' position. The court based its decision to allow the instruction not on the notation alone, but also on the ...


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