Appeal from the Circuit Court of Cook County. No. 94L8470 Honorable Allen A. Freeman, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
There is one issue in this case: Did the trial court abuse its discretion when it found a defense lawyer's remark during closing argument was so improper it entitled the plaintiff to a new trial? We conclude the answer is yes. We reverse.
On May 16, 1991, Kathy Kass (Kass) visited her obstetrician, Dr. Elio Vento, and received confirmation that she was pregnant. On October 4, 1991, Kass underwent an ultrasound test, which revealed that she was carrying twins, both in breech position. This fact, combined with Kass' obstetrical history -- she had two previous stillbirths, one due to the umbilical cord wrapping around the fetus' neck -- led Dr. Vento to plan to deliver the twins by Caesarean section. The operation was scheduled for December 9, 1991, the calculated due date.
On December 8, 1991, Kass began experiencing labor pains. After consulting with Dr. Vento, Kass went to Resurrection Medical Center. Kass arrived at the Medical Center at 12:30 p.m. and was met by Dr. Vento. He proceeded to assess the situation, applying fetal monitors to Kass' abdomen.
From the monitors it was determined that one of the twins -- Kelly -- was showing poor heart rate variability and some late decelerations. Though Dr. Vento found the monitor tracings to be cause for concern, he did not believe the tracings were indicative of significant fetal distress necessitating a rush or emergency Caesarean section. Dr. Vento decided, however, to perform the Caesarean section that day, as soon as possible.
At 1:35 p.m., Kass was taken to the operating room. The anesthesiologist, Dr. Ewa Zaburda, was called to the delivery area. She consulted with Dr. Vento and, based on various considerations, they determined an epidural anesthesia would be appropriate. At 2:07 p.m. Dr. Zaburda began administering the epidural. At 2:30 p.m. Dr. Vento began the operation. Kelly was delivered at 2:34 p.m.
At birth, Kelly's APGAR scores were within acceptable range. Blood tests, however, showed her blood pH was slightly below normal and her platelet count was low. Eighteen hours after birth, Kelly had a seizure. She was transferred to Loyola Medical Center, where it was later determined she suffered from cerebral palsy.
Kass filed suit against Resurrection Medical Center, Dr. Vento, and Dr. Zaburda, alleging Kelly's cerebral palsy had been caused by their negligent acts or omissions. Specifically, it was alleged Dr. Vento breached the standard of care by failing to deliver the twins earlier in the pregnancy; by failing to recognize an emergency situation existed based on Kelly's monitor tracings; and by failing to perform an emergency caesarean section operation soon after receiving the monitor tracings.
Dr. Zaburda, it was alleged, added to the delay of Kelly's delivery by choosing to administer an epidural anesthesia, which requires 30 minutes to take effect, rather than a general anesthesia, which takes effect in a matter of minutes.
During a three week trial, the jury heard the testimony of several expert witnesses. The defense experts, as well as the plaintiff's experts, all opined Kelly's injury, in light of all the evidence, had not resulted from a single hypoxic event, but, rather, had most likely resulted from a continuous, chronic hypoxia, which began anywhere from 2-3 days to 2-3 weeks prior to birth. They reached this determination based on the fact that Kelly's muscle tone, APGAR scores, and ability to breathe on her own were normal at birth, indicating that Kelly was under no appreciable fetal distress at birth. At the same time, however, blood tests done on Kelly's blood at birth revealed a high level of nucleated red blood cells and low platelet count -- both conditions which indicated a chronically low oxygen intake. Additional testing, such as CT scan, MRI, and head ultrasound films, confirmed, in the defense experts' opinions, that Kelly's brain damage was sustained over days or weeks prior to birth.
In opposition, Kass' experts, Dr. Lerer and Dr. Gore, testified hypoxic ischemic encephalopathy at the time of birth contributed to Kelly's cerebral palsy. While they admitted Kelly's fetal monitor tracings showing decreased variability and late decelerations upon her arrival at the hospital, which supported the notion that Kelly was already hypoxic when Kass arrived at the hospital, plaintiff's experts were reluctant to say how long the hypoxia might have been present prior to birth. In their opinion, Kelly's brain damage would have been less severe had she been delivered sooner.
After the evidence was presented, the jury heard closing arguments. Plaintiff's counsel began by stating Kelly was not present in court
"even though this is probably the most important day of her life because what you decide today is going to determine how she's going to live for the rest of her 73 or 74 years of life
Now let me remind you of the burden you have in this case, that is, this is Kelly's only day in court. There is no second chance. Whatever you decide today as to what she's entitled to, that's it for the rest of her life. If you decide there is a sum of money you agree that she is entitled to, that's what she's going to have to live with for the rest of her life. That's your burden."
Later in plaintiff's closing argument, counsel accused the defense of "creat[ing] evidence to cheat a crippled child of what she's due" and characterized the ...