The opinion of the court was delivered by: Justice South
Appeal from the Circuit Court of Cook County.
Honorable Irwin J. Solganick, Judge Presiding.
This appeal arises out of a medical malpractice action. Following a jury trial, a verdict was rendered in favor of all defendants and against plaintiffs.
The undisputed facts established at trial were that on October 29, 1992, Elizabeth Mitchell, who was 34 5/7 weeks pregnant, presented herself to the Palos Community Hospital emergency room complaining of nausea, dizziness and light-headedness. She was seen by defendant, Dr. Gregg Goldberg, who after an examination reached a diagnosis of "near syncope," which means fainting or swooning. Although he was informed that plaintiff was pregnant and that Dr. Gumpel was her treating physician, he did not contact Dr. Gumpel or undertake fetal monitoring. He released plaintiff and sent her home, where she continued to experience ill-being and vomiting.
That evening plaintiff went to see her physician, defendant Dr. Gumpel, who had her admitted to Palos Community Hospital. At that time, plaintiff was placed on fetal monitoring; however, Dr. Gumpel did not order an ultrasound right away or a complete blood count (CBC) work-up. The fetal monitoring did indicate some abnormalities. After reviewing those monitoring tapes and an ultrasound that was ultimately done, Dr. Gumpel made a diagnosis of abruptio placenta, meaning that the placenta had torn away from the surrounding membranes, and ordered a caesarian section. The infant was delivered in a condition of ill-being described as hypovolemic shock and now suffers from the life-long condition of cerebral palsy.
The gravamen of plaintiffs' complaint is that defendants failed to conduct timely fetal monitoring or ultrasound testing, failed to order a CBC work-up, although they knew or should have known that such testing was appropriate and necessary, and that Dr. Goldberg failed to immediately inform Dr. Gumpel of the emergency care rendered to her patient, Elizabeth J. Mitchell. Other complaints are that Dr. Gumpel failed to timely perform a caesarean section upon reaching a diagnosis of abruptio placenta, which deprived the infant's brain of oxygen, proximately causing his injuries.
The defense has maintained throughout these proceedings that the injuries suffered by the fetus occurred prior to Elizabeth's presenting herself to the emergency room on October 29, 1992, and that those injuries were already complete and irreversible by the time she came under defendants' care. While at her place of employment, plaintiff fainted and experienced vomiting and nausea. Defendants maintain that episode was symptomatic of a loss of blood caused by the placental abruption. Expert testimony was rendered on behalf of defendants that based upon several factors, which included the infant's high level of nucleated red blood cells, the insult or injury was complete and irreversible before defendants ever saw and examined Mrs. Mitchell.
The issues we are called upon to decide are (1) whether the court erred in admitting the expert opinions pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); (2) whether the court erred by allowing one of plaintiffs' experts to be impeached with a deposition from an unrelated lawsuit when defendants did not produce the deposition prior to trial; (3) whether the court erred in allowing questioning of one of plaintiff's expert witnesses on a "non-medical" matter; and (4) whether the court erred in allowing one of defendants' expert witnesses to give testimony regarding the hospital's policies and procedures on electronic fetal monitoring that was never disclosed pursuant to Rule 213 (166 Ill. 2d R. 213).
Prior to trial, plaintiffs filed a motion to bar the testimony of Dr. Jeffrey Phelan on the causation issue pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
A lengthy hearing was conducted. The defense introduced the depositions of Drs. Phelan, Cefalo, Polk, and Salafia. The plaintiffs introduced the depositions of Drs. Cetrulo and Rothstein.
Dr. Phelan has written articles relating to assessing the significance of nucleated red blood cells (NRBC) in evaluating a neurological injury in an infant. One such article, entitled "Nucleated Red Blood Cells: An Update on the Marker for Fetal Asphyxia," appeared in the November 1996 issue of the American Journal of OB/GYN. He has also published abstracts in the January 1997 issue of the American Journal of Obstetrics and Gynecology, wherein he conducts a comparison of nucleated red blood cells. He has written a paper on acute fetal asphyxia and its relationship to organ system dysfunctions, which covers nucleated red blood cells. He also published a paper dealing with acute asphyxia that discusses nucleated red blood cells, and has written an article for the April 1997 issue of OB/G Management, dealing with blood markers to date fetal brain injury. Dr. Phelan has been conducting this research for over 20 years.
He opines that based upon the initial level of the NRBCs, which was 66%, the clearance of the NRBCs, which was almost 400 hours, the initial platelet count, the onset of seizures, which was 118 hours after birth, and the nonreactive fetal heart rate, the fetus suffered a preemergency room visit insult, i.e., a placental abruption, which caused a neurologic injury to the fetus. He opined that the injury occurred while Mrs. Mitchell was at work, an hour or so before her arrival at the emergency room and approximately 24 hours prior to the birth of Christian, and that the abruption was not diagnosable until the time of delivery because that is the only time such an injury can be confirmed. According to Dr. Phelan, this particular abruption was extremely rare because it was concealed or silent, meaning there was no vaginal bleeding or pain in the stomach, abdomen or back. The presence of one or all of these symptoms would indicate an abruption, and while one may suspect an injury based upon the ultrasound, delivery is the first time a confirmed diagnosis of the condition can be made. It was his opinion that an ultrasound would not have shown anything as far as an abruption was concerned. At trial, Dr. Phelan testified that, based upon a reasonable degree of scientific and medical certainty, the abruptio placenta and its resulting irreversible damage to the fetus was completed prior to the mother presenting herself at the emergency room.
During his studies on the significance of NRBCs in attempting to fix the time of an intrapartum neurologic insult, Dr. Phelan has excluded children who were anemic because of a possible relationship between NRBC counts and the underlying presence of anemia. Premature infants have also been excluded from this study because premature babies are born with above-normal NRBC counts. Under these studies, Dr. Phelan has established the numerical cutoff on hematocrit below 40%; Christian's hematocrit at birth was around 34%. Dr. Phelan opined, however, that NRBCs in premature infants are immaterial, unless the child is under 32 weeks, and that Christian's anemia contributed minimally to the nucleated red blood cell count found at the time of his birth. Dr. Phelan to date has not conducted any research on anemia and its relationship to NRBCs. His studies do show that, by looking at nucleated red blood cells in certain kinds of babies and at the clearance rate after birth which it takes for those nucleated red blood cells to disappear, it may be possible to determine when an injury has occurred. Dr. Phelan opined that, in the instant case, the nucleated red blood cells are but one indicator of an insult that predated the mother's admission to the hospital and her arrival at the emergency room on the afternoon of October 29. The other indicators are the almost 400 hours it took for the NRBCs to return to zero; the initial platelet count; the onset of seizures, which was 118 hours after birth; and the nonreactive fetal heart rate pattern.
Dr. Phelan also testified at trial that his hypothesis is entitled to general acceptance ...