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05/26/95 JAMIE LYNN OTT v. LITTLE COMPANY MARY

May 26, 1995

JAMIE LYNN OTT, A MINOR, BY HER FATHER AND NEXT FRIEND, MARK OTT, AND MARK OTT, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
LITTLE COMPANY OF MARY HOSPITAL, PAUL E. LAWLER, M.D., AND WILFREDO RENDON, M.D., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PAUL F. ELWARD, JUDGE PRESIDING.

Rehearing Denied July 26, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j. and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

This appeal arises from an order dismissing the medical malpractice action of the minor plaintiff, Jamie Lynn Ott, pursuant to a cash and structured settlement agreement recommended by the court-appointed guardian ad litem and approved by the trial court on November 13, 1992. Mark Ott, the minor plaintiff's father and next friend, and the plaintiff's mother, *fn1 who were the co-guardians of her estate, objected to the terms and refused to consent to the settlement agreement. After the denial of plaintiffs' motions to reconsider and vacate the order of dismissal, on December 21, 1992, the instant appeal was taken. This court granted the motion of the Illinois Trial Lawyers Association to file an amicus curiae brief in support of the plaintiffs-appellants.

[THE FOLLOWING MATERIAL IS NOT TO BE PUBLISHED PURSUANT TO SUPREME COURT RULE 23.]

[THE PRECEDING MATERIAL IS NOT TO BE PUBLISHED PURSUANT TO SUPREME COURT RULE 23.]

Substantively, *fn3 the instant obstetrical medical malpractice action is premised on actions that allegedly occurred on August 8 and 9, 1983 in connection with the performance of a Caesarean section delivery of the minor plaintiff, Jamie Ott, at defendant Little Company of Mary Hospital by defendant Doctor Paul Lawler, Jr., the attending physician, and by defendant Doctor Wilfredo Rendon, the primary surgeon. After the delivery, on August 8, Jamie was transferred to the neonatal intensive care unit at the birth hospital because of her alleged critical condition due to meconium aspiration. On August 9, approximately twelve hours after birth, Jamie was transferred to the University of Chicago Hospital neonatal intensive care unit. The complaint, consisting of a single count, alleged that, as a result of the defendants' negligent failure to provide adequate medical care at the time of delivery and thereafter, Jamie suffered severe and permanent injuries including a spastic diplegia form of cerebral palsy leaving her unable to properly use her legs and Erb's palsy of the left arm which prevents her from using that arm. In that single count, Mark Ott also joined his individual claim for medical expenses incurred on behalf of the minor.

Although trial did not commence and no evidence was presented, we must discuss the nature of the liability and injuries in this case as reflected by the parties' extensive pretrial discovery depositions and documents, which were considered by the trial court and the guardian ad litem and made a part of the record, *fn4 since that becomes the predicate upon which case value may be determined for the purpose of settlement.

Doctor Katherine Mary Peshek-Campbell, Jamie's pediatrician, described Jamie as being intelligent, motivated, socially interactive and well-adjusted. She stated, in her deposition, that the spasticity in Jamie's legs had decreased with numerous surgeries and that Jamie was able to ambulate for short distances without assistance, although she required the assistance of a walker for longer distances. Jamie's left arm remained nonfunctional but she did have use of her left hand.

Plaintiffs' obstetrical expert, Doctor Martin Motew, testified in his deposition and stated he had no criticism of the decision to perform or the timing of the Caesarian section delivery. He was critical of the preparation for and care rendered to Jamie immediately after her birth. He indicated that Mrs. Ott's high-risk, post-date (past 42 weeks gestation) pregnancy and the existence of meconium-stained amniotic fluid were factors that required additional hospital staff and equipment at the time of delivery in anticipation of meconium aspiration by the newborn child. He believed that Jamie had not been properly intubated, to clear her airways of meconium, or evaluated in the delivery room and in the neonatal intensive care unit and that certain necessary equipment was not available in the delivery room at the time of Jamie's delivery. Doctor Motew and Doctor Irving Rozenfeld, plaintiffs' pediatric neurology expert, agreed that the combined hospital records from Little Company of Mary Hospital and the University of Chicago Hospital indicated that Jamie was freely moving her limbs from the time of birth until August 17, 1983, when a finding was made at the University of Chicago Hospital, where Jamie had been transferred on August 9, 1983, that Jamie's left arm had become flaccid. Both doctors questioned the accuracy of those notations, however. Both doctors also agreed that Erb's palsy is caused by trauma or a stretching injury. Doctor Motew stated that it was unlikely that the injury occurred during delivery and stated there was no recorded event in the records that revealed "a causative factor for this paralysis." Doctor Rozenfeld also was unable to formulate an opinion as to the cause of Erb's palsy; stated it was a condition separate and apart from Jamie's symptoms of cerebral palsy; and stated that Erb's palsy was extremely rare in Cesarian section cases.

Defendants' experts stated that Erb's palsy was not related to the care provided to Jamie by the defendants and that whatever trauma caused the injury occurred at the University of Chicago Hospital.

As to the spasticity affecting Jamie's legs, Doctor Motew stated he was not an expert in pediatric neurology and had no opinion as to whether that spasticity was caused by Jamie's meconium aspiration and subsequent respiratory problems. Doctor Rozenfeld's opinion was that Jamie's form of cerebral palsy resulted from a lesion in the brain. He theorized that localized bleeding occurred in the blood vessels in Jamie's brain, as a secondary phenomenon of meconium aspiration and respiratory distress, selectively affecting her lower extremities. He said it was inconceivable that the spasticity in Jamie's legs was due to a spinal cord injury.

Defendants' experts rejected Doctor Rozenfeld's theory because there was no evidence of hypoxia or lack of oxygen in the brain so as to cause a physiologic response. They also rejected the hypothesis of intracerebral hemorrhage because it was anatomically impossible and made no sense neurologically since Jamie's intellect was not affected. Defendants' experts found that results from tests performed on Jamie were more consistent with a spinal cord lesion that could have been caused by trauma similar to the trauma that caused the Erb's palsy or by a prenatal developmental problem.

The record also contained a report prepared by plaintiffs' expert on anticipated safety and health care goods and services which Jamie would require and an accountant's projections of costs for those goods and services.

On April 24, 1992, the instant case was assigned to Judge Paul Elward for trial. As is customary, the trial judge convened a pre-trial conference during the course of which he initiated settlement exploration and negotiation. These discussions took place with all parties present and were also pursued, without objection, with each of the parties separately outside of the presence of their respective opponents. During the conferences, each of the parties was free to discuss with the trial judge the respective strengths and weaknesses of the case as reflected in the foregoing depositions.

At the pre-trial conference, the plaintiffs demanded $4.5 million to settle their lawsuit and rejected all settlement offers made by the defendants. The plaintiffs allege, and it appears undisputed by the defendants, that on the morning of April 27, 1992, the second day of pre-trial, Judge Elward indicated to the defendants, during an ex parte discussion, that he would settle the case for $2 million present cash value if the defendants offered that amount. Later that morning, he met with Jamie's attorney and her parents and advised them of his discussion with the defendants, reiterating his statement that he would settle the case if the defendants offered $2 million. The plaintiffs' attorney and the parents objected to the court's actions as they had not authorized the court to make such a demand on their behalf. The defendants subsequently returned to court and advised Judge Elward that they were making a firm offer of a structured settlement with a present cash value of $2 million. That structure included an immediate cash payment of $800,000 and periodic payments to commence immediately which were guaranteed to yield a minimum of $5,412,033 and which could yield in excess of $21 million if Jamie lived her normal life expectancy. *fn5 Judge Elward again met with Jamie's parents and attorney to convey the settlement offer. In response, they expressly refused to accept that offer. Judge Elward thereupon indicated to the parties that he would nevertheless settle the case and requested that the parties appear in court the next day to make a record and draw an order to effect "the revised settlement that we have reached today."

At the start of the court hearing on April 28, 1992 the trial court stated:

"This case is settled for two million dollars according to a revised structured settlement, which I find satisfactory, and a guardian ad litem will be appointed in place ...


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