Appeal from the Circuit Court of Cook County, Law Division No. 96 L 11679 Honorable Allen A. Freeman, Judge Presiding.
The opinion of the court was delivered by: Justice Hall
This case concerns an action for medical malpractice brought by plaintiffs Yvette Bryant and Amos Bryant, individually and as parents and next friends of the minor plaintiff, Kylie Bryant, against defendants Dr. Yong Kim, Dr. Shanta Nath, and the LaGrange Memorial Hospital (Hospital) for injuries Kylie Bryant suffered just prior to her delivery. The jury returned a verdict in plaintiffs' favor and against Dr. Kim, awarding damages in the amount of $30 million. However, the jury found in favor of the Hospital and Dr. Nath.
Plaintiffs accepted the $1 million insurance policy limit of Dr. Kim and settled the matter with Dr. Nath's employer for $100,000. Thereafter, plaintiffs filed a posttrial motion, which the trial court subsequently denied. Plaintiffs now appeal from the verdict and judgment in favor of the Hospital.*fn1
On appeal, plaintiffs contend that: (1) the trial court erred by refusing to give subparagraph D of plaintiffs' proposed issue instruction No. 13; (2) the trial court erred by refusing to give three modified versions of the pattern duty instruction; and (3) the trial court erred by allowing the Hospital's expert, Dr. MacGregor, to testify with opinions not previously disclosed pursuant to Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)). For the reasons that follow, we affirm.
Yvette Bryant was admitted to the labor and delivery unit of the Hospital at approximately 2:30 a.m. on August 9, 1995. She was at full term and was two days past her estimated due date. Her vital signs were normal. Yvette Bryant planned a VBAC delivery*fn2, meaning she planned to attempt to deliver vaginally after having previously delivered by cesarean section (C-section)*fn3. Complications arose however and Kylie Bryant was delivered by emergency C-section. Upon delivery, Kylie Bryant was limp and not breathing. She was immediately resuscitated but was later diagnosed as suffering from cerebral palsy.*fn4
Thereafter, plaintiffs Yvette Bryant and Amos Bryant, individually and as parents and next friends of the minor plaintiff, Kylie Bryant, filed a medical malpractice action against defendants Dr. Kim, Dr. Nath, and the Hospital, seeking to recover damages on the theory that Kylie Bryant suffered permanent brain damage due to a deprivation of oxygen just prior to her delivery. A jury trial commenced on July 26, 2001, where the following facts were established.
In late evening, on August 8, 1995, Yvette Bryant began to experience the early stages of labor. On August 9, 1995, at approximately 2:30 a.m., Yvette Bryant was admitted to the Hospital, where she was attended to by labor and delivery nurses Susan Tully, R.N., and Susan Horner, R.N. Yvette Bryant was at full term and was two days past her estimated due date. The nurses took Yvette Bryant's vital signs, which were normal, drew blood, attached an IV to keep Yvette Bryant hydrated and the baby active, attached an external electronic fetal monitor*fn5 to Yvette Bryant's abdomen, and then called her obstetrician, Dr. Kim. At 3 a.m., the fetal monitor indicated a heart rate of 140 beats per minute*fn6. A vaginal examination indicated that Yvette Bryant's cervix was dilated 3 centimeters (10 centimeters dilation is required for vaginal delivery). Nurse Tully testified that at this time, Yvette Bryant's condition was normal and that she was having regular contractions.
Dr. Kim arrived at the Hospital at approximately 3:15 a.m. Dr. Kim artificially ruptured Yvette Bryant's bag of waters, or amniotic sac, and attached an internal scalp lead on the baby's head in order to more accurately monitor the baby's heart rate. Nurse Tully testified that when the bag of waters was ruptured she noted that there was a large quantity of thick meconium*fn7 in the amniotic fluid. Dr. Kim then ordered that Yvette Bryant undergo an amnioinfusion, which is a procedure whereby a catheter is placed up around the uterus and a saline solution is run through the catheter in order to irrigate or rinse out the meconium. Yvette Bryant was administered two bags of saline solution during this procedure.
Nurse Tully testified that Dr. Shanta Nath, a neonatologist, was then called to the Hospital since hospital policy required that a neonatologist be called whenever meconium is observed. At 3:30 a.m., the fetal heart rate was 145. Dr. Nath testified that she arrived at the hospital at approximately 3:40 a.m. Dr. Nath testified that she did not provide any care to Yvette Bryant in her laboring state or provide any advice to Dr. Kim or the labor and delivery nurses. Dr. Nath testified that her primary role was to provide care to Yvette Bryant's baby once the baby was delivered.
At 4 a.m. the fetal heart rate was 135. A vaginal exam conducted at about 4:15 a.m. indicated that Yvette Bryant was dilated to 4 centimeters. Nurse Tully testified that at about 4:30 a.m. she administered Yvette Bryant a pain reliever called Nubain through an IV line.
At 4:30 a.m. the electronic fetal heart monitor strip evidenced a bradycardia or abnormally low heart rate in the 60s for 4½ minutes. In response to the low fetal heart rate, the nurses performed various standard interventions including increasing Yvette Bryant's IV fluids, physically turning Yvette Bryant on her side, and administering oxygen through a face mask. After the interventions were performed, the fetal heart rate returned to the baseline for about a minute.
At about 4:35 a.m., the fetal heart rate decelerated or dropped to the 90s for about 1½ minutes. In response to this drop, the nurses repositioned Yvette Bryant, tipped the head of her bed down, and Dr. Kim manually stimulated the baby's scalp. The baby's heart rate returned to baseline for about 2½ minutes.
At approximately 4:40 a.m., the fetal monitor strip indicated that the baby's heart rate had decelerated into the 60s. For the succeeding 17 minutes the external monitor failed to give a continuous paper tracing.*fn8 Nurse Horner testified that during the time the external monitor was not tracing properly she "auscultated"*fn9 the audible signals being emitted from the external monitor in order to determine the baby's heart rate. Nurse Horner testified that shortly after 4:40 a.m., the baby's fetal heart rate dropped to the 60s with no sustained return to baseline for approximately 17 minutes. Dr. Kim became concerned that the monitor was not tracing properly and therefore changed the internal lead on the baby's scalp and the "toco," *fn10 in order to get a better paper tracing.
Due to a continued lack of uninterrupted tracings, Dr. Kim ultimately decided to change monitor machines. The monitor was switched at approximately 4:53 a.m. While the monitor was being switched Nurse Horner stimulated the baby's scalp. Nurse Horner testified that after Dr. Kim made the decision to change monitors she consulted Nurse Linda Stauber, because she was unfamiliar with a monitor being changed in response to concerns over equipment tracings. Nurse Stauber was a senior labor and delivery nurse who was charge nurse and was Horner's supervisor. Nurse Stauber came into the delivery room shortly before 4:57 a.m.
Nurse Stauber took a radial pulse of Yvette Bryant's wrist and compared her pulse to the audible fetal heart rate on the monitor and determined that the baby's heart rate was much slower than Yvette Bryant's heart rate. A little after 4:57 a.m., the newly connected fetal monitor showed that the baby's heart rate had fallen to the 50s for about 3½ minutes. In addition, Nurse Horner noted continuous late decelerations with each contraction. Due to the continuous low fetal heart rate tracings on the new fetal monitoring machine, Dr. Kim ordered an emergency C-section at approximately 5 a.m. At about 5:23 a.m., Dr. Kim made the first incision for Yvette Bryant's C-section delivery. Kylie Bryant was born at 5:28 a.m.
Plaintiffs called two expert witnesses to testify against Dr. Kim and the Hospital nurses. Dr. Bernard Gore, a practicing obstetrician-gynecologist, testified regarding the national obstetrical standard of care applicable to Dr. Kim and the national nursing standard of care applicable to labor and delivery nurses Tully and Horner. Nurse Sharon Hall ...