Appeal from the Circuit Court of Cook County. Honorable Maureen Durkin Roy, Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
Plaintiffs, Rana Nassar, a minor; Odaie Nassar, a minor; Luaey Nassar, a minor; and Ckusi Nassar, a minor, by their mother and next friend, Wafieh Jamal Nassar; and Wafieh Jamal Nassar, individually (plaintiffs), appeal from a jury verdict in favor of defendant, County of Cook, a body politic, individually, and d/b/a Cook County Hospital, in a retrial of an obstetrical malpractice action. On appeal plaintiffs contend that the circuit court erred in: (1) giving the long form proximate cause instruction; (2) refusing to give the missing witness instruction; (3) allowing defendant to present statistical evidence regarding other womens' pregnancies; (4) allowing testimony of previously undisclosed opinions in violation of Supreme Court Rule 213 (177 Ill. 2d R. 213 (Rule 213)); and (5) denying plaintiffs' motion for a new trial based on prejudicial remarks made during opening statements.
In 1990 Wafieh Nassar became pregnant with quadruplets. On March 18, 1991, during the 22nd week of her pregnancy, Wafieh presented at Cook County Hospital complaining of symptoms consistent with pre-term labor. She was hospitalized and remained there until her babies were born 47 days later at 29 ½ weeks gestation. All four babies suffered intraventricular hemorrhages (IVH). Plaintiffs brought this action claiming defendants failed to utilize proper techniques to prevent the premature delivery and that once premature delivery was imminent, defendants failed to administer corticosteroids, causing permanent neurological injuries in all four babies. This case was tried in July 1999, resulting in a hung jury. The case was retried in February 2000. The following relevant evidence was adduced at the retrial.
Dr. James Hawkins, who was called as an adverse witness by plaintiffs, testified that he examined Wafieh on March 18, 1991, when she first presented at the clinic at Cook County Hospital. A monitor indicated that Wafieh was having contractions. Her cervix was long, soft, and closed and she was suffering from an e-coli urinary tract infection (UTI), which can cause pre-term contractions. Wafieh was admitted to the complicated obstetrics unit. Dr. Hawkins testified that after high frequency low amplitude contractions were noted on March 27, 1991, Dr. Taheri ordered terbutaline which was administered on March 28, 1991. *fn2 She did not receive any tocolytic drugs from March 18 through March 27, 1991. On April 16, 1991, Wafieh was transferred to labor and delivery at 3:30 a.m. to start intravenous ritodrine; but it was not administered until 2 p.m. when her cervix was dilated one or two centimeters. Dr. Ligaya Marasigan explained that intravenous ritodrine was not necessary at 3:30 a.m. because Wafieh's cervix was still closed at that time.
Dr. James Shepherd was called as an adverse witness by plaintiffs and testified that he treated Wafieh when she was transferred to the labor and deliver unit from April 16 through May 3, 1991. Beginning on April 16, 1991, Wafieh was on continuous fetal monitoring with a few exceptions. Wafieh never had regular uterine contractions that would be characterized as active labor. From April 12 until May 3, 1991, Wafieh's cervix progressed from one to three centimeters dilated which was a slow and very gradual change expected in a quadruplet pregnancy.
Dr. Marasigan, who also was called as an adverse witness by plaintiffs, testified that Wafieh did not need tocolytic drugs from March 18 until March 27, 1991. Wafieh had occasional uterine irritability, but not regular contractions. Dr. Marasigan ordered terbutaline on March 28, 1991. From April 21 until May 3, 1991, Wafieh's cervix remained two centimeters dilated. On May 3, 1991, she progressed to three centimeters. Wafieh's cervical change was expected because she was carrying quadruplets. Dr. Marasigan wrote a note on May 1, 1991, to consider using steroids. She could not recall why Wafieh was not given steroids. Dr. John Klutke, one of Wafieh's treating physicians was called as an adverse witness by plaintiffs and testified that when Wafieh experienced cervical change it was related to the over-distension of her uterus and unrelated to any contractions she was experiencing because she never had regular contractions. He explained that Wafieh was at risk for pre-term labor because her uterus was distended with quadruplets. He stated that it was not possible to have a quiescent uterus in a quadruplet pregnancy because of the over-distension of the uterus. He described the contractions that occur as a result of an over-distended uterus as irregular low amplitude contractions that occur continually, but do not lead to labor. Tocolytics are designed to prevent regular strong contractions that lead to labor, not irregular low amplitude contractions. He further explained that the cervix thins out and dilates due to over-distension. Regular uterine contractions cause rapid dilation of the cervix. Wafieh did not have rapid cervical change from regular contractions. She experienced a slow, gradual change from April 16, 1991, when her cervix was a fingertip closed until May 3, 1991, when it was dilated three centimeters.
Dr. Tyler who was called as an adverse witness by plaintiffs, testified that in 1991 steroids were not shown to be beneficial in multiple gestations. When Dr. Tyler saw Wafieh on May 4, 1991, she told him she felt some moisture in the vaginal area. He performed a digital vaginal examination which confirmed that the membranes were ruptured and the cervix was dilated to four centimeters. Plaintiffs were delivered by cesarian section by Drs. Tyler and Hosseinian. Dr. Tyler testified that Wafieh had experienced a very slow progression of cervical dilation over weeks, caused by the over-distention of her uterus and not by a regular contraction pattern.
Dr. Felicia Lane was called as an adverse witness by plaintiffs. She testified that there is not one single definition of "active labor." Contraction activity as well as cervical dilation are taken into account. With multiple gestations, three to four centimeters dilation is considered active labor. She further stated that delaying the delivery of quadruplets when the mother is four centimeters dilated poses the risks of precipitous delivery and cord prolapse. She stated that steroids were not the standard of care in 1991 and it is still unknown whether steroids are beneficial with quadruplets.
Dr. Eddie L. Swift, one of Wafieh's treating physicians, testified that he would not have recommended that steroids be given to Wafieh because of the potential risk of pulmonary edema and because she had a UTI. Dr. James Young testified that minor plaintiffs' neurological injuries were caused by IVH and their prematurity.
Plaintiffs' expert witness, Dr. John Elliott, a perinatologist, testified that defendants deviated from the standard of care by: (1) failing to properly utilize tocolytics; (2) failing to evaluate the change in contraction pattern and check magnesium sulfate levels on May 3, 1991; (3) allowing the magnesium sulfate level to drop to one on May 4, 1991; (4) allowing the fetal monitor to be disconnected on May 3, 1991; (5) Dr. Tyler performed an unnecessary and inappropriate vaginal examination on May 4, 1991; (6) failed to delay delivery after the rupture of the membranes on May 4, 1991; (7) failed to have Dr. Swift involved in the management of the case; and (8) failed to administer steroids on April 16, 1991, and every day thereafter until delivery. Dr. Elliott stated that it was a deviation from the standard of care not to administer tocolytics to Wafieh from March 18 through March 27, 1991, not to change the tocolytic drug or dose on April 9, 1991, not to start intravenous ritodrine at 3:30 a.m. on April 16, 1991, and not to give Wafieh sufficient amounts of magnesium sulfate to successfully accomplish tocolysis. According to Dr. Elliott, absent these deviations, the pregnancy could have been maintained to 32 weeks. He further stated that had Wafieh been given steroids, the minor plaintiffs would be absolutely normal. He agreed, however, that no studies have shown whether steroids are effective in quadruplet pregnancies.
Dr. Lee Meadow, defendant's expert witness, agreed that steroids might have reduced the minor plaintiffs' risk of IVH, but would not have reduced their risk of neurological injury associated with prematurity. The cause of the minor plaintiffs' neurological problems was their prematurity. He disagreed with Dr. Elliott's opinion that if steroids had been given the minor plaintiffs would be absolutely normal.
Dr. Michael Socol, an obstetrician and gynecologist specializing in complicated obstetrics, testified as an expert witness for the defense. Dr. Socol testified that defendant and all the defendant physicians met the standards of care in treating Wafieh and her four children. He stated that steroids were not the standard of care in 1991. Only one out of five pregnant women eligible for steroids in 1991 received them. The effectiveness of steroids in high level multiple gestations has not been shown even currently. On cross-examination, he stated that had Wafieh been given steroids the likelihood of the minor plaintiffs having neurological injury would have been diminished.
According to Dr. Socol, over the last 20 years, the incidence of pre-term birth has stayed the same and may have increased slightly. It was appropriate not to administer tocolytics to Wafieh from March 18 through March 28, 1991. It was reasonable not to administer intravenous ritodrine on the morning of April 16, 1991, in light of the cervical examination showing a closed cervix at that time. Once tocolytics were administered in this case, the treatment was appropriate and aggressive. The slow and progressive cervical change Wafieh experienced over a period of weeks was normal and expected. He testified that the physicians could not have prevented Wafieh's cervix from dilating to three centimeters on May 3, 1991, because it was going to happen due to the quadruplet pregnancy. He strongly disagreed with Dr. Elliott's opinion that if the tocolytics had been increased the pregnancy could have been maintained to 32 weeks.
During an offer of proof, Dr. Sum Pyati testified that steroids were discussed during interdisciplinary meetings regarding Wafieh's care. She stated that it was decided not to administer steroids to Wafieh because of: (1) uncertainty whether they were effective with quadruplets; (2) risk of pulmonary edema; and (3) concern that Wafieh recurrently had cultured positive for e-coli in the birth canal.
On March 22, 2000, the jury returned a verdict in favor of defendant. Plaintiff moved ...