The opinion of the court was delivered by: Justice Gallagher
Appeal from the Circuit Court of Cook County Honorable Richard J. Elrod, Judge Presiding.
Plaintiffs Marilee and Michael Seef filed a medical malpractice action against defendants Ingalls Memorial Hospital and Dr. Frank Sutkus to recover damages for the wrongful death of their son. Plaintiffs appeal from the circuit court's order dismissing the hospital as a defendant and from the court's judgment on the jury verdict in favor of Dr. Sutkus. We affirm the dismissal of Ingalls Memorial Hospital and reverse and remand for a new trial with regard to Dr. Sutkus.
Mrs. Seef became pregnant in 1979 and was treated prenatally by Dr. Sutkus throughout her pregnancy. Mrs. Seef's estimated delivery date was June 7, 1980. On a prenatal visit that Mrs. Seef made to Dr. Sutkus on June 9, 1980, the doctor found nothing unusual. On June 10, 1980, Mrs. Seef ran a fever of 103.6 degrees and had chills. She called Dr. Sutkus that evening and he ordered her to go to the hospital. Just before Mrs. Seef left home for the hospital, her water broke. At approximately 10 p.m. that evening, Mrs. Seef was admitted to Ingalls Memorial Hospital. Her temperature at the hospital was 99.4 degrees. Dr. Sutkus went to the hospital after he had been notified of Mrs. Seef's arrival and was examining her by 10:30 p.m.
Due to Mrs. Seef's temperature fluctuations and a fetal heart rate within the upper limits of normal range, Dr. Sutkus ordered that an external fetal monitor be applied to track contractions and fetal heart rate. The monitor was applied at 11:45 p.m. and run at one centimeter per minute. Dr. Sutkus testified later that a monitor strip is routinely run between one centimeter and three centimeters per minute, and that Ingalls Memorial Hospital ran its monitors at one centimeter per minute in order to save paper. Running the monitor at three centimeters per minute expands the configuration of the tracing and allows a greater clarity of interpretation of the fetal heart rate and contractions. Dr. Sutkus testified that he customarily watched approximately 15 to 20 minutes of the strip and saw nothing here that alerted him to any problems. He went to a doctors' lounge 10 feet away from Mrs. Seef's room to rest. Dr. Sutkus did not see Mrs. Seef again until 3:05 a.m., when he was woken by a call from a nurse. Between the time that Dr. Sutkus retired to the lounge and when he saw Mrs. Seef at 3:08 a.m., the nursing staff monitored Mrs. Seef's labor. At 3:08 a.m., Dr. Sutkus examined the latest monitor strips and found abnormalities which caused him some concern. He applied an internal monitor to the fetus and, based on those readings, decided to perform an emergency caesarean section (C-section). The baby was stillborn.
Although Dr. Sutkus did not see anything indicating an infection during the C-section, he did take a culture sample from Mrs. Seef's placenta. The culture developed to show that Mrs. Seef had a staphylococcus aureus (staph) infection. An autopsy was performed on the baby and it was determined that the cause of death was intrauterine anoxia or lack of oxygen. No cultures were taken from the baby so no determination could be made as to whether he was infected as well.
In his 1984 deposition, Dr. Sutkus testified that, prior to 3:05 a.m., the monitor strips had shown a few fetal heart rate irregularities but that the fetus had recovered each time. He testified that, even if he had seen the monitor strips prior to 3:05 a.m., he would not have done anything differently. The following colloquy occurred during the deposition:
"Q. Was there anything on any of those sheets, that is those fetal monitor sheets or strips, however you want to call them, that would have caused you to do something to help this child had you not been napping and had you been aware of what was transpiring on those fetal monitor strips?
Q. So everything was okay up to 3:05 a.m. as far as you're concerned, correct?
Q. Acceptable. Does that mean that there was some deviation that might cause some concern but you didn't feel it was sufficient?
A. Not sufficient to act.
Q. To act. It would just call for watchful waiting; is that what you mean?
Q. At 3:05 a.m. wasn't it already too late to do anything?
Plaintiffs originally filed suit on November 16, 1981, but voluntarily dismissed that action on June 24, 1986. Plaintiffs refiled the case in 1987 but the trial court held that plaintiffs could not recover damages for parental loss of society for the death of a stillborn fetus. The appellate court reversed that ruling in 1990. The supreme court affirmed in 1991. Plaintiffs reinstated their case on June 26, 1992.
On July 11, 1996, plaintiffs filed their first amended complaint against Ingalls Memorial Hospital and Dr. Sutkus. Count I against Dr. Sutkus alleged, in the main, that the doctor's failure to provide appropriate prenatal care, to correctly interpret the fetal monitor strip, and to perform a timely C-section proximately caused the baby's in utero death. Count II against Ingalls Memorial Hospital alleged that the hospital employees' failure to accurately interpret the fetal monitor strip, failure to run the strip at three centimeters per minute, failure to record accurate data regarding the fetus' distress, failure to recognize abnormal labor, failure to intervene appropriately by turning Mrs. Seef on her side and giving her oxygen and administering IVs, and failure to respond appropriately to signs of fetal distress and abnormal labor by notifying Dr. Sutkus and/or another appropriate medical person proximately caused the baby's in utero death.
On March 4, 1998, Ingalls Memorial Hospital filed a motion in limine to bar all testimony from plaintiffs' nursing expert, nurse Sharon Hall, and obstetrical expert, Dr. Max Lilling, that the hospital's nurses deviated from the standard of care by failing to notify Dr. Sutkus earlier of changes on the fetal monitor strips. Nurse Hall was to testify that, based on her interpretation of the data on the monitor strips, the nurses should have notified Dr. Sutkus by 1:25 a.m. Nurse Hall was also to testify that, if Dr. Sutkus had not seemed properly concerned when notified earlier, the nurses should have contacted their supervisor and explained their concerns, and that the nurses should have run the external fetal monitor at three centimeters per minute for a patient in labor. Nurse Hall stated that a physician could order that the monitor be run at one centimeter per minute but that, if the nurses needed a clearer picture, they could go to three centimeters per minute on their own. Because she was not a medical expert, nurse Hall could not provide an opinion as to whether the alleged deviations from the standard of care proximately caused the baby's death.
Dr. Lilling was to testify that, based on his interpretation of the fetal monitor strips, the nurses should have contacted Dr. Sutkus by 1:45 a.m. Dr. Lilling did not find that running the external fetal monitor at one centimeter per minute was a deviation from the standard of care and stated that the nurses had not failed to operate the monitor properly.
The hospital argued that testimony "regarding deviations for failure to notify earlier must be barred because it did not proximately cause the claimed injury of stillbirth." The trial judge agreed and barred such testimony because Dr. Sutkus had testified that, even if the nurses had notified him earlier, he would not have acted sooner. The court, in fact, barred nurse Hall from testifying at all. The court found her testimony regarding the need to call a supervisor was too speculative and too far removed from what plaintiffs had disclosed in their answers to interrogatories, and that nurse Hall was unable to provide proximate causation testimony connecting the running speed of the monitor and the baby's death.
Since Hall was plaintiffs' only expert witness regarding deviations by the nurses, on the trial court's suggestion, the hospital made an oral motion to dismiss based on lack of proximate cause. The trial court granted the motion to dismiss on March 5, 1998. At the trial court's request, Ingalls Memorial Hospital then made a written motion to dismiss. At a March 9, 1998, hearing, the trial court reiterated that it was dismissing the hospital and denied plaintiffs' motion to reconsider, filed as a "motion in opposition to defendant's motion to dismiss." The trial court refused the hospital's request for a Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) finding that there was no just cause to delay enforcement or appeal of the dismissal order. The court entered an order dismissing Ingalls Memorial Hospital with prejudice. The order also stated that language as to finality and appealability would be entered at the time judgment was entered in the trial against Dr. Sutkus.
On March 10, 1998, the day before trial, plaintiffs filed a motion to bar the March 8, 1998, video evidence deposition testimony of Dr. Richard Depp for failure to disclose opinions pursuant to Supreme Court Rule 213 (166 Ill. 2d R. 213). Plaintiffs asserted that Dr. Sutkus did not disclose Dr. Depp as an expert witness until after a court-imposed December 18, 1996, discovery deadline had passed. The court denied the motion. Before the deadline, on April 3, 1996, counsel for Dr. Sutkus had sent a letter to plaintiffs' counsel stating that "as previously indicated," they had named Dr. Depp as their expert in the case, that Dr. Depp's opinions had been set forth in a 1985 discovery deposition conducted by plaintiffs' previous counsel in the original 1981 action, and that all opinions set forth in the original case were readopted. On February 20, 1997, counsel for Dr. Sutkus had sent a letter to plaintiffs' counsel reminding them that plaintiffs' counsel had continued a deposition of Dr. Depp and had not rescheduled it and that Dr. Sutkus's counsel had yet to receive plaintiffs' Rule 213(f) and Rule 213(g) interrogatories. On August 13, 1997, counsel for Dr. Sutkus had sent a letter to plaintiffs' counsel offering Dr. Depp for deposition again and outlining Dr. Depp's opinions. Although counsel for Dr. Sutkus offered Dr. Depp to plaintiffs for deposition several times, plaintiffs did not conduct a new discovery deposition.
On March 11, 1998, the jury trial against Dr. Sutkus commenced. Plaintiffs presented Dr. Lilling as their medical expert. Dr. Sutkus presented Dr. Schulman, a pediatric infectious disease expert, and was to present the video evidence deposition of Dr. Depp. During the evidence deposition, the parties had agreed to a standing Rule 213 objection: all Rule 213 objections were preserved for presentation to the trial judge. Therefore, on March 11, the trial judge met with the parties and conducted a six-hour review of plaintiffs' Rule 213 objections to the evidence deposition. Following the in-chambers review, the video tape was recut to reflect the sustained objections prior to presentation to the jury.
On March 18, 1998, the jury returned a verdict in favor of Dr. Sutkus and the trial court entered judgment on the jury's verdict. The court also entered a separate order making the March 9, 1998, order dismissing Ingalls Memorial Hospital with prejudice final and appealable pursuant to Supreme Court Rule 304(a), as of March 18, 1998.
On April 8, 1998, plaintiffs filed a notice of appeal from the order of March 9, 1998, granting dismissal in favor of Ingalls Memorial Hospital, and from the order of March 18, 1998, making the March 9, 1998, order final and appealable. On May 1, 1998, having been granted an extension of time in which to file, plaintiffs filed a posttrial motion against the judgment on the jury verdict seeking a new trial. The posttrial motion included extensive argument regarding Ingalls' dismissal. On June 30, 1998, after oral argument, the court denied the posttrial motion. On July 10, 1998, plaintiffs filed a notice of appeal "from the jury verdict and judgment entered on the verdict on March 18, 1998 and from the order entered in the Circuit Court of Cook County on June 30, 1998, denying Plaintiff's [sic] Post Trial Motion." The two appeals have been consolidated.
We address first the issue of this court's jurisdiction over the appeal from the order dismissing Ingalls Memorial Hospital. Citing Supreme Court Rule 303 (155 Ill. 2d R. 303), the hospital argues that, because plaintiffs filed a posttrial motion subsequent to the filing of its notice of appeal from the dismissal order of ...