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Preston v. Simmons

March 30, 2001


Appeal from the Circuit Court of Cook County. No. 93 L 12356 Honorable Edward R. Burr Judge Presiding

The opinion of the court was delivered by: Justice Tully

This case concerns an action for medical malpractice brought by a minor plaintiff, Paige Preston, against defendants Dr. Gayle Simmons, Dr. Mary Horan, and St. Joseph Hospital, for injuries plaintiff suffered at the time of her birth. The jury returned a verdict in plaintiff's favor and awarded damages in the amount of $1,010,000. Defendants thereafter filed a posttrial motion, seeking a new trial or judgment notwithstanding the verdict, which the trial court denied. Defendants now appeal from that order, arguing a new trial is or judgment notwithstanding the verdict is warranted because: (1) the trial court improperly coerced the jury into rendering a verdict when the jury was deadlocked; (2) the trial court allowed the use of prejudicial demonstrative evidence; (3) plaintiff's counsel violated motions in limine barring certain evidence; (4) plaintiff's counsel improperly cross-examined defendants' medical expert; (5) the trial court improperly circumscribed defendants' cross-examination of plaintiff's witness; (6) plaintiff's counsel engaged in improper closing argument; (7) the trial court issued instructions on damages not supported by any evidence; (8) the jury awarded excessive damages and (9) the verdict was against the manifest weight of the evidence. This court has jurisdiction pursuant to Supreme Court Rules 301 and 303 (155 Ill. 2d Rs. 301, 303). For the reasons set forth below, we reverse and remand for a new trial.


On May 15, 1991, Patricia Preston gave birth to plaintiff at St. Joseph Hospital. In the course of delivery, plaintiff's shoulder became impacted under Mrs. Preston's pelvic bone, a condition known as shoulder dystocia. Shoulder dystocia is a potentially emergent condition because the infant may be deprived of oxygen until the shoulder is released and the infant is delivered. Defendants, Dr. Gayle Simmons (Dr. Simmons), a board-certified obstetrician and gynecologist, and Dr. Mary Horan (Dr. Horan), a first-year obstetrics and gynecology resident, were in attendance during Mrs. Preston's labor and utilized several techniques to try to release plaintiff's shoulder. After several attempts, plaintiff was released and delivered, but she suffered an injury to the nerves in her left arm and shoulder, known as a brachial plexus nerve injury, permanently depriving her of some use of her left arm. Plaintiff thereafter brought a medical malpractice action alleging Dr. Simmons failed to properly supervise Dr. Horan, and Dr. Simmons and Dr. Horan failed to use the proper techniques when delivering plaintiff, thereby causing her injury. A jury trial commenced on March 24, 1998.

Dr. Simmons testified at trial that she had seven years' experience in labor, delivery and performing shoulder dystocia maneuvers, had trained residents to perform these maneuvers during her tenure as St. Joseph's assistant medical director, and had trained Dr. Horan in shoulder dystocia maneuvers and performed 50 deliveries with Dr. Horan prior to plaintiff's delivery. Dr. Simmons stated that when Mrs. Preston arrived at St. Joseph Hospital, she and Dr. Horan examined her to determine her stage of labor. At 11:30 a.m., Mrs. Preston was completely dilated and Dr. Simmons and Dr. Horan began the delivery of plaintiff. Mrs. Preston lay supine on a delivery bed, Dr. Simmons and Dr. Horan stood between her legs, guiding plaintiff's head down the birth canal, and Elmer Preston, plaintiff's father and Mrs. Preston's husband, stood on the right side of Mrs. Preston. At 11:37 a.m., plaintiff's head was delivered and Dr. Simmons suctioned plaintiff's mouth and nostrils to remove fetal stool and amniotic fluid. Dr. Horan felt for the umbilical cord and informed Dr. Simmons that it was wound tightly around plaintiff's neck. Dr. Simmons cut the cord and placed her hands over Dr. Horan's hands to correctly position them for delivery. Dr. Horan attempted to deliver plaintiff, applying gentle downward traction, but discovered plaintiff's shoulder was impacted. When Dr. Horan alerted Dr. Simmons to this fact, Dr. Simmons pushed Ms. Preston's left leg back, applied supra pubic pressure, and told Dr. Horan to attempt delivery again. Dr. Simmons represented that in shoulder dystocia cases, supra pubic pressure is an appropriate procedure to dislodge an impacted shoulder, while progressively more invasive procedures are used if the shoulder cannot be freed. Dr. Horan tried gentle downward traction again, but plaintiff's shoulder remained impacted. When informed of this, Dr. Simmons called over two nurses to help perform a McRoberts maneuver. A McRoberts maneuver involves hyper- flexing both of the mother's legs, while applying supra pubic pressure to the mother and gentle downward traction to the infant. The maneuver facilitates delivery by flattening the mother's backbone and rotating the pelvic bone, creating a larger opening for the infant to be delivered through. Two nurses held both of Mrs. Preston's legs back, while Dr. Simmons applied supra pubic pressure, and Dr. Horan applied gentle downward traction to plaintiff. Plaintiff was delivered easily at 11:40 a.m., but in the process of delivery, the nerves in her left shoulder and arm were stretched, resulting in a brachial plexus nerve injury. In Dr. Simmons opinion, plaintiff's injury was caused by the impaction of her shoulder under Mrs. Preston's pelvic bone, and Dr. Horan acted within the normal scope of expertise as a first-year resident in aiding in plaintiff's delivery.

Dr. Horan testified that she was a board-certified obstetrician and gynecologist, but at the time of plaintiff's delivery, she was in the tenth month of her first year of a four-year residency in obstetrics and gynecology. In her first year of residency, Dr. Horan performed roughly 270 deliveries, supervised by an attending physician, was trained in shoulder dystocia maneuvers, and was present during four to five shoulder dystocia deliveries, prior to plaintiff's delivery. Dr. Horan agreed that too much traction could cause a brachial plexus injury by stretching the nerves in an infant's neck and shoulders. Dr. Horan could not quantify in pounds the amount of force she used in delivering plaintiff because the proper amount of traction could only be measured by feel. Dr. Horan stated that the amount of traction used on an infant during delivery does not vary according to whether a delivery is normal or whether a shoulder dystocia delivery is indicated, because gentle downward traction is the only appropriate force. Dr. Horan testified that she used gentle downward traction at all times when attempting to deliver plaintiff.

Elmer Preston testified on behalf of plaintiff at trial. Prior to examination of Mr. Preston, the court granted plaintiff's motion in limine, over defendants' objection, to bar cross-examination of Mr. Preston concerning his estrangement from Mrs. Preston and the fact that he lived with another woman outside Illinois, so long as the direct testimony did not invite inquiry into these issues.

Mr. Preston testified that when plaintiff's delivery began, he stood on the right side of Mrs. Preston, while Dr. Horan and Dr. Simmons stood between Mrs. Preston's legs. When plaintiff's head was delivered, Dr. Horan stated that the umbilical cord was around plaintiff's neck, at which point the doctors cut the umbilical cord and suctioned plaintiff. After the cord was cut, Dr. Horan began pulling on plaintiff's head, while Dr. Simmons pushed Mrs. Preston's leg back, but did not apply pressure to Mrs. Preston's abdominal or pubic area. Dr. Horan continued to pull on plaintiff's head, harder and harder, and at one point, put her leg up on the side of the bed to gain greater leverage when pulling on plaintiff's head. Mr. Preston told the doctors to go easy, but they ignored him. Some time later, Dr. Simmons and a nurse pulled both of Mrs. Preston's legs back, and plaintiff was delivered easily. Mr. Preston testified that he had an opportunity to observe plaintiff over the years at various times, and that a video-tape and photographs shown at trial accurately depicted plaintiff's disabilities and disfigurement.

Mrs. Preston testified that at the time of plaintiff's delivery, Dr. Simmons and Dr. Horan stood between her legs, while Mr. Preston stood on her right side. After the doctors told Mrs. Preston to push for the second time, plaintiff's head was delivered. The doctors then told Mrs. Preston to stop pushing, and one of them said that the cord was around plaintiff's neck. From her position, Mrs. Preston could not see the doctor's hands, but she could see the upper part of their bodies and shoulders. After the cord was cut and plaintiff was suctioned, the doctors told Mrs. Preston to push again. At some point, someone said that plaintiff's shoulder was stuck, and the doctors again told Mrs. Preston to stop pushing. Dr. Simmons pushed Mrs. Preston's left leg back toward her chest, while Dr. Horan tried again to deliver plaintiff. Dr. Simmons did not apply pressure to Mrs. Preston's abdominal or pelvic area at any time during the delivery. Mrs. Preston asked the doctors if her husband could help, but they did not respond to her. Dr. Horan applied gentle pressure when first attempting to deliver plaintiff, but her movements became more vigorous and rapid after plaintiff's shoulder became stuck. At one point, Mrs. Preston heard Mr. Preston say, "Easy, easy, you're hurting the baby." Eventually, one of the nurses came to Mrs. Preston's left side and joined Dr. Simmons in pressing on Mrs. Preston's left leg. Mrs. Preston was uncomfortable with one leg pushed back, so she pulled her right leg back on her own, at which point, plaintiff delivered easily.

Dr. John Long, a board-certified obstetrician and gynecologist, testified on behalf of plaintiff. Dr. Long stated that Dr. Simmons breached the standard of care by pushing back only one leg when attempting to release plaintiff's impacted shoulder. Dr. Long stated that pushing back one leg compounds the problem in a shoulder dystocia case because this action does not raise the mother's pelvic bone, and instead tilts the pelvic bone, creating a kink in the birth canal and a smaller opening for the infant to be delivered through. Dr. Long represented that although pushing one leg back does not harm an infant, it hinders the delivery process. Dr. Long testified that a proper McRoberts maneuver, by contrast, which involves pushing both legs back to the chest and applying supra pubic pressure, facilitates delivery by changing the angle of the birth canal and the pelvic bone. Dr. Long stated that Simmons deviated from the standard of care by allowing Dr. Horan, a first-year resident, to perform the most difficult part of delivery in an emergency situation, and Dr. Horan, in turn, deviated from the standard of care by applying too much traction when attempting to deliver plaintiff. In Dr. Long's opinion, too much traction was most likely the cause of plaintiff's brachial plexus injury.

At the prompting of plaintiff's counsel, Dr. Long stated that he had examined the mechanics of a human skeletal model and that the use of that model would help him to explain his testimony. Using the skeletal model, Dr. Long demonstrated what happens to the pelvic bone when one leg is pushed back. Defense counsel objected to the demonstration on the basis that the skeletal model distorted the movements of the pelvis because the model's legs were affixed with rubber ligaments on only one side, the spine was fixed to the pelvic region with screws, and the skeleton was of male rather than female, but the trial court allowed the demonstration. On cross-examination, Dr. Long admitted that the skeleton model used in his demonstration was probably of a male skeleton, because a woman's pelvis is rounder. Dr. Long also stated that unlike the model, an actual woman would have ligaments on both legs, and her spine would move when her leg was pushed back.

Dr. Michael Hughey, a board-certified obstetrician and gynecologist, testified on behalf of defendant. Dr. Hughey stated Dr. Simmons complied with the standard of care when delivering plaintiff because pushing one leg back and applying supra pubic pressure was an appropriate way to treat shoulder dystocia, separate and apart from the McRoberts maneuver. Dr. Hughey stated that Dr. Horan was qualified to participate to the extent she did in plaintiff's delivery, and that her application of mild to moderate downward traction, as she described, also conformed to the standard of care. Dr. Hughey testified that a brachial plexus injury may occur in a shoulder dystocia delivery, in the absence of any negligence, because maternal pushing and delivery maneuvers, even properly performed, may stretch the brachial plexus nerves. In Dr. Hughey's opinion, plaintiff's injury occurred while she was coming through the birth canal.

On cross-examination, plaintiff's counsel questioned Dr. Hughey concerning representations he made at the time of his deposition regarding the location of an instructional video on shoulder dystocia. The videotape itself was never introduced at trial and its location was not at issue. Defense counsel objected to this cross-examination on the basis it was irrelevant, and the issue of the tape's location entirely collateral. The trial court overruled the objection, finding Dr. Hughey's deposition answers had bearing upon his candor and credibility as a witness.

On cross-examination, plaintiff's counsel also asked Dr. Hughey if he had ever been represented by defense counsel's law firm, to which Dr. Hughey replied he had not. Plaintiff's counsel produced a notice of filing from a 1988 case, Caftori v. Hughey, showing that defense counsel's law firm filed an appearance on behalf of Dr. Hughey. When asked by plaintiff's counsel if the notice of filing was false, Dr. Hughey responded he had no knowledge of having been represented by defense counsel's firm in the past. In a sidebar conference, defense counsel objected to this line of questioning on the basis that neither Dr. Hughey nor defense counsel had any knowledge of the prior representation in the Caftori lawsuit, and plaintiff's counsel had failed to properly disclose this as a basis for impeachment prior to trial. After further investigation, the court determined that the Dr. Hughey's insurance carrier had retained defense counsel's firm to file an appearance on behalf of Dr. Hughey, but it did not appear that Dr. Hughey ever had any contact with the firm, because the matter was settled and dismissed. The trial court ultimately overruled defense counsel's objection to the impeachment, but instructed the jury not to infer anything negative about defense counsel's firm from the evidence.

Dr. Alan Free, plaintiff's pediatrician, testified concerning the extent of plaintiff's injury. Dr. Free stated that after diagnosing plaintiff's brachial plexus injury, he advised that she be enrolled in physical therapy. In the first six to nine months of therapy, plaintiff experienced good improvement, but reached a permanent plateau thereafter. Plaintiff had regained good strength in her lower arm, such that from her elbow down she was essentially normal. However, plaintiff still could not fully extend her arm from the elbow, her upper arm and shoulder continued to display marked weakness, and there was some disproportion between her left arm ...

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