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Northern Trust Co. v. University of Chicago Hospitals and Clinics

December 23, 2004


Appeal from the Circuit Court of Cook County. No. 98 L 05094. The Honorable James P. Flannery, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Fitzgerald Smith

Plaintiffs-appellees the Northern Trust Company and Antoinette Scates, as co-guardians of the estate of Marshawn Davis, a minor (plaintiffs or as named), filed a two-count complaint at law: count I named defendant-appellant the University of Chicago Hospitals and Clinics (UCH) and defendants Drs. Chin-Chu Lin, R.J. Austin, Diane Ryan, Brian Rosner and Randall Barnes, alleging negligent care prior to the birth of Marshawn, causing mental retardation; and count II named UCH and defendant Dr. William Meadow, alleging negligent care of Marshawn in the neonatal unit after birth, causing a permanent injury to his left buttock. With respect to count I, the jury returned a verdict for plaintiffs and against UCH only, awarding $10,912,500 in damages; with respect to count II, the jury returned a verdict for plaintiffs and against UCH and Dr. Meadow, awarding $758,400 in damages. UCH appeals the verdict on count I only, contending that (1) the trial court erred in not granting judgment notwithstanding the verdict in favor of UCH due to plaintiffs' failure to provide sufficient evidence of proximate causation, and (2) the trial court erred when it refused to submit special interrogatories to the jury that would have tested the verdict.*fn1 UCH asks that we reverse the judgment with respect to count I and vacate that award or, alternatively, that we remand for a new trial. For the following reasons, we affirm.

[9]     BACKGROUND*fn2

In late October 1988, Scates was progressing through a high-risk pregnancy because of weight gain. Her due date of October 22 had passed, and on October 26, 1988, she visited Dr. Ryan, a fourth-year resident, at a clinic for a nonstress test. The test was nonreactive, indicating that there was no affirmative demonstration of fetal well-being, so Dr. Ryan sent Scates to UCH for further testing. While at UCH, Dr. Rosner, a second-year resident, performed a second nonstress test and monitored the fetus. This test indicated that the fetus was showing signs of well-being, so Dr. Rosner sent Scates home.

At about noon on October 31, 1988, Scates' waters broke. She noted that the amniotic fluid had a brownish-mustard color; this is indicative of the presence of meconium (fetal waste) in the fluid. At 3:20 p.m., Scates arrived at UCH and informed an obstetrical nurse in the triage area that her waters had broken. Scates was admitted and placed in a labor room, and a fetal monitor was attach to her stomach at 3:50 p.m. The monitor showed a normal fetal heart rate but also recorded several decelerations, during which the fetus' heart rate would decline for a brief time and return to normal. Dr. Rosner performed a vaginal exam of Scates at 4:05 p.m., saw the meconium-stained fluid and determined that Scates was still some 12 to 20 hours away from a vaginal delivery. By 4:22 p.m., Dr. Rosner noted a second prolonged deceleration in the fetal heart rate and concluded that the fetus was suffering from distress. He consulted Dr. Lin, the attending obstetrician on duty, and Dr. Austin, who visited Scates between 4:25 and 4:28 p.m. and read the fetal heart tracings. Dr. Lin recommended that Scates be turned to the side, be given oxygen and that an intrauterine pressure catheter be attached to help alleviate the decelerations. Soon thereafter, Drs. Rosner and Lin, along with Dr. Ryan, discussed performing a cesarian section. The catheter was attached at 4:38 p.m., and a note was entered in Scates' chart indicating that the operating room was currently occupied and that the doctors were awaiting the opening of a second room in which to perform the surgery. Later, Dr. Ryan wrote a note in Scates' chart indicating that Scates gave consent for the cesarian section and that the doctors were waiting for the operating room. At 4:53 p.m., Scates was disconnected from the monitors in her labor room for transport and reconnected between 4:59 and 5 p.m. in a different room; she was prepped for the cesarian section. The first incision took place at 5:15 p.m. and Marshawn was delivered at 5:20 p.m. by the subsequent attending on duty, Dr. Barnes, with Drs. Rosner and Ryan assisting.

At one minute after birth, Marshawn had an Apgar score of 1 on a scale of 1 to 10, indicting that he was blue, his heart rate was low, he had no reflex response and he was not breathing on his own; he also had moderate acidosis, indicating that he had acidic blood due to a change in the intrauterine environment. He was suctioned and his Apgar score rose to 8 and then 9 at five minutes, as he had good color, heart rate and tone and was breathing on his own. Marshawn was transferred to the regular newborn nursery, where he was active, alert, had good reflexes, ate and urinated well and exhibited no neurological abnormalities. On November 1, 1988, approximately 12 hours after birth, Marshawn began experiencing cyanosis and right side seizure activity lasting several minutes. He was medicated and transferred to the neonatal intensive care unit, where the seizures continued. It was determined that Marshawn had suffered diminished blood, and thus oxygen, flow to the brain at some point in time surrounding his birth. Marshawn, who was 13 years old at the time of trial, is moderately mentally retarded, functions as a 2 to 3 year old, and will need 24-hour supervision for the remainder of his life.*fn3

Plaintiffs filed a complaint at law against UCH and Drs. Lin, Austin, Ryan, Rosner and Barnes asserting negligent care prior to Marshawn's birth causing his mental retardation.*fn4 Specifically, as against the doctors individually, plaintiffs alleged that they violated the standard of care by failing to promptly perform the cesarian section. As against UCH, plaintiffs alleged that it was negligent in failing to have a second operating room available wherein to perform the cesarian section, and that it was negligent through the actions of its obstetrical triage nurse in failing to attach the fetal monitor in a timely manner, no later than 3:30 p.m. (rather than 3:50 p.m.).

Several doctors involved in the cause, as well as multiple medical experts, testified at trial regarding what occurred prior to Marshawn's birth and its possible effects. Dr. Ryan testified that Scates arrived at UCH at 3:20 p.m. and was admitted at 3:50 p.m., whereupon a fetal monitor was attached. After an examination by Dr. Rosner, Dr. Ryan noted the presence of meconium, a "worrisome sign" because it can indicate that the fetus has had a bowel movement in utero due to oxygen deprivation and because of the danger that the fetus will aspirate the meconium below his vocal cords and interrupt oxygen flow. With respect to fetal heart rate and the placement of the monitor, Dr. Ryan noted that though presenting some variable decelerations, the fetal heart rate was normal until 4:18 p.m. when there was a sharp deceleration followed by another sometime before 4:30 p.m. The intrauterine pressure catheter was placed at 4:38 p.m. to provide fluid to the fetus. The heart rate returned within normal range and stayed that way until 4:50 p.m. She testified that decelerations become a concern only when they are repetitive in 50% to 70% of the mother's contractions; the fetus here had only experienced decelerations in 2 of some 20 to 30 contractions. The fetal heart rate actually improve around this time and exhibited no decelerations, indicating that the fetus was doing well even during Scates' contractions. Dr. Ryan stated that the fetal tracings at this time showed that "there wasn't an extreme urgency to do the [cesarian] section."

With respect to Marshawn's delivery, Dr. Ryan testified that UCH had four birthing rooms at the time: three set up to accommodate vaginal deliveries and one set up especially for cesarian section operations. Any of the three vaginal delivery rooms may be converted into an operating room for the performance of a cesarian section, requiring that surgical instruments and other necessary medical equipment be brought into these rooms. Dr. Ryan testified that there was never a situation where there was no place at UCH to accommodate a birthing emergency. She further testified that she wrote a note in Scates' chart stating that Scates was not dilated, that a cesarian section was needed because Marshawn was experiencing fetal distress, that the operating room was currently occupied, that doctors were waiting for a second room to be opened in which a cesarian section on Scates could be performed, and that Scates had given her consent for the surgery. Dr. Ryan could not decipher from the chart whether she wrote this note at 4:45 p.m. or 4:55 p.m., but testified that the decision to proceed with the cesarian section seemed to have been made sometime before 4:38 p.m., when the catheter was placed. Dr. Ryan averred that the nurse's notes indicate that Scates gave her consent for the surgery at 4:50 p.m. Scates was taken into a converted delivery room for the surgery by 5 p.m., the first incision took place at 5:15 p.m. and Marshawn was delivered at 5:20 p.m. Dr. Ryan testified that she did not believe Marshawn suffered any fetal distress injury from the delay in his delivery because he was "pretty good at birth." Dr. Ryan admitted, however, that Marshawn was depressed at birth, had no response or tone, was not breathing and had aspirated meconium below his vocal cords.

Dr. Rosner testified that he was the first doctor to examine Scates at 4:05 p.m. While noting the meconium in her amniotic fluid, Dr. Rosner did not believe this indicated that the fetus was in distress or that he was to be removed from the womb immediately. With respect to the fetal heart rate and monitor, Dr. Rosner testified that a UCH obstetrical nurse assessed Scates upon Scates' arrival. The fetal heart tracings, which did not begin until 3:50 p.m. after the fetal heart monitor was attached, showed the fetus was experiencing some stress but not severe distress or fetal distress. He further stated that this was not a "life-threatening" situation and that there were intervals where the fetus was "doing just fine" and exhibiting reassuring signs. This indicated that there was something compromising the fetus only intermittently. Dr. Rosner stated that there was some concern between 4:22 p.m. and 4:25 p.m., when there was a prolonged deceleration whereupon he consulted with his senior, Dr. Lin.

With respect to Marshawn's delivery, Dr. Rosner testified that he and Dr. Lin discussed the need for a cesarian section and decided to speak to Scates about the procedure between 4:27 p.m. and 4:28 p.m.*fn5 Dr. Rosner averred that at 4:38 p.m., the catheter was placed and that a note was written in Scates' chart that the doctors were waiting for an operating room in which to perform the surgery. After the placement of the catheter, the fetal heart rate did not exhibit any further decelerations. Dr. Rosner believed that while a cesarian section was urgent, it was not emergent. He explained that the delivery rooms and the operating room at UCH were interchangeable; it took approximately five minutes to convert a delivery room into a functioning operating room in which to perform a cesarian section. Dr. Rosner was not sure when or how quickly UCH's staff was notified to prepare a room for Scates' surgery after the decision was made. He averred that medical guidelines indicate the interval between the decision to perform a cesarian section and the first incision should not exceed 30 minutes. Although Dr. Rosner believed Scates' "situation was a bit different" and that Marshawn ultimately had a "timely delivery," he admitted that the time interval exceeded 30 minutes and that a fetus experiencing distress usually should be removed as quickly as possible.

Dr. Lin testified that based on the information presented to him around 4:22 p.m. regarding Scates, it was necessary to deliver the fetus as soon as possible but not immediately. Although there were decelerations, after repositioning Scates and giving her oxygen and a fluid infusion through the catheter, the fetus' heart rate recovered and exhibited "very good reserve," or strength during contractions. Dr. Lin concurred that all four rooms at UCH could be used for cesarian sections. He believed that delivery at 5:20 p.m. was appropriate and acceptable, even though fetal distress was indicated throughout Scates' chart. Dr. Lin further stated that Marshawn aspirated meconium below his vocal cords at some point during labor and delivery, resulting in asphyxia.

Dr. Elizabeth Berry-Kravis, a pediatric neurologist, examined Marshawn and reviewed his neonatal medical records, as well as various MRI and CAT scans of his brain. Dr. Kravis opined that Marshawn's brain damage resulted from a hypoxic ischemic event (a decrease of blood flow in some way to the brain) which hit his central nervous system during the "perinatal period," defined as several days before delivery, several days after delivery or during the actual delivery. However, based on subsequent brain scans, Dr. Kravis believed the attributable event did not occur after Marshawn's birth or at the time of his seizures but, rather, either 24 to 48 hours before delivery or during delivery, with no time "more particularly likely" than another. She further testified that the seizures Marshawn experienced could have occurred anytime between 8 and 72 hours after the event. When asked what caused the decreased blood flow to Marshawn's brain, Dr. Kravis averred that there were "several hypotheses that one could raise, but we really don't know."

Dr. Steven Donn, a neonatologist, reviewed Marshawn's labor, delivery and birth records, his MRI and CAT scans, his follow-up records and various depositions in this cause. He opined that "absolutely no way" did an event occur during the time between Scates' labor and the cesarian section sufficient enough to cause Marshawn's brain damage. Rather, he averred that the event or events responsible antedated this period some two to four days. He based his opinion on the fact that Marshawn exhibited completely normal signs of life at five minutes after birth. Dr. Donn testified that had the hypoxic ischemic event occurred during the period between labor and delivery, Marshawn would have had marked difficulties with his cardiovascular and renal systems. Dr. Donn also stated that asphyxia sufficient to cause the damage, had it occurred during this period, would have left Marshawn nearly comatose, hypotonic, with diminished activity and without reflexes. Dr. Donn averred that any fetal distress Marshawn experienced in utero was alleviated by his delivery through cesarian section, which was sufficiently timely. He further testified that the cause for Marshawn's seizures was "undetermined" and could have been the result of any number of different conditions he may have experienced, but that whatever their cause, it was not the cause leading to the need for a cesarian section (i.e., fetal distress).

Dr. William Roberts, an expert in maternal fetal medicine, testified on behalf of UCH. He opined that everything done with respect to Scates' labor and delivery complied with the standard of care. He stated that none of the four criteria for determining if an event during labor and delivery was sufficient to cause brain damage was present in this case: Marshawn's Apgar score at five minutes was excellent, he was not experiencing severe acidosis, he was not hypotonic at birth, and there was no evidence of other organ damage. From this, Dr. Roberts concluded that whatever the event that caused Marshawn's brain damage, it did not occur during this time but, rather, at least 24 hours prior to when Scates arrived at the hospital. With respect to the attachment of the fetal monitor, Dr. Roberts testified that with what Scates presented at the time she reached the hospital, she was "appropriately triaged" by the obstetrical nurse. He explained that the 30-minute interval of time between her arrival at 3:20 p.m. and the attachment of the monitor at 3:50 p.m. was "very reasonable" in light of the obstetrical nurse's duties to take the mother-in-labor's vital signs, history, urine sample and place her in a labor room gowned and ready for examination by a doctor. With respect to Marshawn's delivery, Dr. Roberts testified that the decision of when to perform the cesarian section was not determinative in this case. He explained that because Scates was only urgent and not emergent, the general rule of performing a cesarian section within 30 minutes of a decision that one is necessary did not apply. Dr. Roberts further opined that while the decision to perform the cesarian section could have been made earlier, the time at which it took place was still appropriate.

Dr. Richard Fields, a specialist in obstetrics and gynecology, testified as an expert witness for plaintiffs. He reviewed Marshawn's medical records, prenatal care records, the fetal monitor strips from the delivery and various depositions pertinent to the cause. In general respect to Marshawn, Dr. Fields testified that the named doctors had deviated from the standard of care in delaying the delivery. He averred that as soon as the fetal monitor was attached to Scates there were "worrisome features," that between 4 p.m. and 4:25 p.m. this became an "obstetrical emergency," and that while there was some improvement in the fetal heart rate between 4:25 p.m. and 4:40 p.m., worrisome features continued. He stated that the longer a fetus remains in distress in utero, the greater the resulting damage, and that the bulk of deprivation-of-oxygen injuries occur in the minutes right before delivery. While Dr. Fields admitted that he could not definitively say that either the decelerations or the fetal distress Marshawn was experiencing was sufficient or severe enough to have caused his permanent brain damage, he opined that these factors clearly indicated that it was better to have had Marshawn out of the womb than remain inside for as long as he did. Dr. Field stated that had Marshawn been delivered before 4:30 p.m., he would not have had any irreversible brain damage.

Specifically, with respect to the fetal heart monitor, Dr. Fields testified that it was the duty and responsibility of UCH's obstetrical nurse who admitted Scates to attach the monitor when Scates arrived at the hospital; because Scates arrived at 3:20 p.m., the monitor should have been attached no later than 3:30 p.m. Dr. Fields opined that the nurse's attachment of the monitor at 3:50 p.m. was a deviation from the standard of care. He stated that, to a reasonable degree of medical certainty, had the monitor been attached at the recommended time, it more likely than not would have shown earlier that Marshawn's fetal heart rate in utero was abnormal and would have led to the decision to perform the necessary cesarian section no later than 4 p.m., prompting Marshawn's delivery by no later than 4:30 p.m. He further testified that even with the monitor attached at the time it was, doctors still had sufficient information to know that a completed cesarian section delivery was necessary by 4:30 p.m.

In addition, with respect to the delivery, Dr. Fields testified that it should take no longer than 10 minutes to prepare a room for cesarian section, bring in the patient and extract the fetus. He opined that, to a reasonable degree of medical certainty, UCH deviated from the standard of care in not having such an operating room available and "ready to roll" for Scates' cesarian section. Dr. Fields testified that the time delay in this regard caused a delay in Marshawn's delivery which, in turn, resulted in asphyxia and his brain damage.

Dr. Steven Abern, a pediatric neurologist, also testified as an expert witness for plaintiffs. Based on certain reports he reviewed, including Marshawn's labor and delivery records, MRI and CAT scans, and depositions, as well as an examination of Marshawn, Dr. Abern confirmed that Marshawn suffered from hypoxic ischemic encelphalopathy, a disorder of the brain due to a deprivation of blood flow and oxygen. He opined that permanent damage occurred shortly before birth, within the last "[a]bout 30 to 45 minutes" of delivery, and that the longer Marshawn remained in utero, the more damage was occurring. While he could not "rule in or rule out either way" whether the stress causing the passage of meconium before Scates arrived at the hospital caused the damage, he agreed with Dr. Fields that if Marshawn had been delivered earlier, there would have been less or no damage to his brain.

At the close of evidence, UCH, as well as the named doctors, moved for directed verdict. The trial court denied these motions, except for that regarding Dr. Barnes. The court granted this motion, stating that there was no evidence to refute the testimony presented that Dr. Barnes did not deviate from the standard of care to which he was held in this case (i.e., timely reporting for the start of his hospital shift at 5 p.m.); thus, Dr. Barnes was effectively removed from the suit. At this time, UCH and the remaining named doctors asked the trial court if it would allow certain special interrogatories to be submitted to the jury regarding the three allegations of the complaint: (1) that Drs. Lin, Austin, Ryan and Rosner failed to timely perform the cesarian section; (2) that UCH's obstetrical nurse failed to place a fetal monitor on Scates at 3:30 p.m.; and (3) that UCH failed to have a second operating room available in which to perform the cesarian section. With respect to the named doctors, the special interrogatories (eight in number, two per doctor) read as follows:

"Did the defendant, [Dr. Lin, Austin, Ryan or Rosner], deviate from the standard of care in failing to timely perform a C-section to remove the fetus in light of fetal distress?"


"Was the failure of the defendant, [Dr. Lin, Austin, Ryan or Rosner], to timely perform a C-section to remove the fetus in light of fetal distress a proximate cause of the injury ...

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