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November 13, 1996


Appeal from the Circuit Court of Jackson County. No. 84-L-55. Honorable George Oros, Judge, presiding. This Opinion Substituted on Denial of Rehearing for Vacated Opinion of May 15, 1996, Previously

The Honorable Justice Maag delivered the opinion of the court. Chapman, J., and Rarick, J., concur.

The opinion of the court was delivered by: Maag


This cause has been considered on the defendants-appellees' petitions for rehearing, and the court being fully advised finds:

That this court previously filed an opinion in this cause on May 15, 1996;

That subsequently defendants-appellees filed a petition for rehearing; and

That this court now desires to vacate its previous opinion and substitute a new opinion in its stead.

IT IS THEREFORE ORDERED that the opinion previously filed in this cause on May 15, 1996, shall be, and the same hereby is, VACATED AND HELD FOR NAUGHT.

IT IS FURTHER ORDERED that the opinion being filed on this date shall stand as the decision of the court.

IT IS FURTHER ORDERED that defendants-appellees' petitions for rehearing shall be, and the same hereby are, DENIED.

The Honorable Justice MAAG delivered the opinion of the court:

Plaintiffs, Susan Granberry, by her mother and next friend, Carol Granberry, and Carol Granberry, individually, filed an eight-count complaint on May 4, 1984, in the circuit court of Jackson County alleging medical malpractice against defendants, Carbondale Clinic, Joseph C. Tsung, M.D., William R. Hamilton, M.D., and Sidney G. Smith, M.D. More specifically, the complaint alleged, inter alia, that because defendants were negligent in treating Carol's preeclampsia, she delivered a premature child that suffered from respiratory distress syndrome, hyperbilirubinemia, birth trauma, hyponatremia, hypocalcemia, cerebral palsy, and spastic quadriparesis. On June 26, 1985, plaintiffs amended their complaint, adding Dr. Urduja Pulido as an additional defendant.

Susan's cerebral palsy was caused by a brain lesion known as periventricular leukomalacia. Periventricular leukomalacia is a destruction of the white matter next to and above the brain ventricles. Due to plaintiffs' main theory of malpractice being that Susan's brain lesion would not have developed but for the negligent failure to deliver Susan as soon as Carol developed severe preeclampsia, plaintiffs needed to establish that Susan's brain lesion developed in utero as a result of Carol's severe preeclampsia.

The trial lasted nearly four months, with the jury returning a verdict in favor of defendants. Plaintiffs' posttrial motion was denied, and a timely notice of appeal was filed.

Plaintiffs claim that the trial court erred in refusing to allow them to ask Dr. Allan Bennett, a treating obstetrician, a hypothetical question designed to elicit a conditional admission of liability merely because Dr. Bennett did not agree with the condition.

The relevant facts are as follows. Dr. Roger Klam, an obstetrician and gynecologist, testified on June 15, 1989. Dr. Klam was the attending obstetrician at the time of Susan's birth due to the fact that he was the doctor on call on May 24, 1982. Dr. Klam stated that the fetal heart monitor tracings at the time of Carol's labor "looked perfectly normal." Over the course of several pages of transcript, Dr. Klam agreed that Carol had heartburn complaints consistent with epigastric pain; elevated liver enzymes on May 17, 1982, and May 24, 1982; 160 systolic on two or more occasions while at bed rest six hours apart; three-plus edema; and two-plus persistent proteinuria for two weeks. He agreed that these symptoms "can be indicative of severe preeclampsia and according to 'Williams,' they are." Plaintiffs' counsel listed the aforementioned symptoms and the sentence in quotation marks on plaintiffs' Exhibit No. 98. It appears from a review of the record that at this point in Dr. Klam's testimony, Plaintiffs' Exhibit No. 98 read as follows:

"Carol Granberry

She had:

1. Heartburn complaints consistent with epigastric pain.

2. She had markedly elevated liver enzymes on 5-17-82 and 5-24-82.

3. She had 160 systolic on 2 or more occasions while at bedrest 6 hours apart.

4. She had 3 edema.

5. 2 persistent proteinuria for 2 weeks.

These can be indicative of severe pre-eclampsia and according to 'Williams' they are.

Per Dr. Klam--6-15-89."

Approximately 60 pages later, plaintiffs' counsel asked Dr. Klam if Carol suffered from three-plus brisk reflexes during the course of her pregnancy while she was hospitalized. Dr. Klam stated that he remembered seeing it one time. Then, the following colloquy between plaintiffs' counsel and Dr. Klam occurred:

"Q. [by plaintiffs' counsel] *** Brisk reflexes *** is [ sic ] another indication of severe preeclampsia, isn't it, sir?

A. [by Dr. Klam] It's a warning sign. *** It can be. It's one thing that--it ...

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