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Jonathon Iaccino, A Minor, By His Parents and Next v. Lori L. anderson

December 20, 2010

JONATHON IACCINO, A MINOR, BY HIS PARENTS AND NEXT FRIENDS, JOHN IACCINO AND ELISA IACCINO, AND JOHN IACCINO , LAW AND ELISA IACCINO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
LORI L. ANDERSON, LINDA R. GIBSON, AND WOMANCARE, P.C., A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County Division. Honorable Daniel M. Locallo,Judge Presiding.

PRESIDING JUSTICE HALL delivered the opinion of the court: This case concerns an action for medical malpractice brought by plaintiffs John Iaccino and Elisa Iaccino, individually and as parents and next friends of the minor plaintiff, Jonathon Iaccino, against defendants Dr. Lori L. Anderson, Dr. Linda R. Gibson, Womancare, P.C. (Womancare), and Northwest Community Hospital*fn1 for injuries Jonathon sustained during labor as a result of oxygen deprivation (hypoxia).

Plaintiffs maintained that Dr. Anderson negligently administered the drug Pitocin to Mrs. Iaccino during labor, causing hyperstimulation of her uterus (tachysystole) resulting in Jonathon being deprived of oxygen.*fn2 Plaintiffs contend Dr. Anderson deviated from the applicable standard of care by negligently monitoring Jonathon's fetal heart rate,*fn3 and as a result, failed to timely discontinue the use of Pitocin, resulting in Jonathon's brain being deprived of oxygen during labor and delivery.

Plaintiffs further claim that Dr. Anderson was negligent in failing to recognize uterine hyperstimulation, failing to recognize evidence of fetal intolerance to labor as allegedly reflected on the external electronic fetal monitor (EFM)*fn4 strip, failing to recognize cephalopelvic disproportion (CPD),*fn5 failing to recognize arrest of descent into the birth canal, and failing to recommend a cesarean section.

Plaintiffs contend Dr. Gibson was negligent in failing to identify and respond to fetal intolerance to labor; failing to maintain good quality electronic fetal monitoring; performing an inadequate initial examination at 7:56 a.m.; improperly disconnecting the internal fetal electrode while waiting for the arrival of a surgical assistant to assist in performing the cesarean section; and failing to perform a timely cesarean section.

Defendants' theory of the case was that the proximate cause of Jonathon's injury was an infection in the placenta that traveled to the fetal brain, causing brain damage before any alleged malpractice by defendants. The jury returned a general verdict in favor of defendants and against plaintiffs. Plaintiffs now appeal and seek a new trial.

For the reasons that follow, we affirm. Additional facts are set forth as each issue is addressed.

ANALYSIS

Plaintiffs contend the trial court erred by allowing defendants to cross-examine and impeach plaintiffs' expert witness, Dr. Gary Blake, with a written medical report the doctor prepared as part of plaintiffs' compliance with the pleading requirements of section 2-622(a)(1) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-622(a)(1) (West 2004)). Although this was the third issue raised in plaintiffs' appellate brief, we address it first because it involves a matter of first impression before this court.

In 1985, the Illinois legislature enacted section 2-622 of the Code in an effort to curtail frivolous medical malpractice lawsuits and to eliminate such actions at the pleading stage before the expenses of litigation mounted. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57, 65, 588 N.E.2d 1139 (1992);

B. Elward, The 1985 Illinois Medical Malpractice Reform Act: An Overview and Analysis, 14 S. Ill. U. L.J. 27, 28 (1989).

Section 2-622(a)(1) requires the plaintiff (if proceeding pro se) or his attorney to file an affidavit of merit with the complaint stating that the affiant has consulted and reviewed the facts of the case with a health care professional who, in a written medical report -- after a review of the medical records and other relevant material -- has determined that there is a "reasonable and meritorious" cause for filing the action. 735 ILCS 5/2-622(a)(1) (West 2004). A copy of the medical report must be attached to the affidavit and the report must clearly identify the "plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists." 735 ILCS 5/2-622(a)(1) (West 2004); Moyer v. Southern Illinois Hospital Service Corp., 327 Ill. App. 3d 889, 902, 764 N.E.2d 155 (2002).

In the instant case, the trial court permitted defense counsel to impeach Dr. Blake with alleged inconsistencies between some of the opinions contained in the doctor's written medical report and his trial testimony. The question on review is, assuming a proper foundation had been laid, whether the trial court erred in allowing the doctor's written medical report to be used as a prior inconsistent statement for impeachment purposes.

In a medical malpractice action, the plaintiff must establish the standards of care against which the physician's conduct is measured by the use of expert testimony. Kotvan v. Kirk, 321 Ill. App. 3d 733, 741, 747 N.E.2d 1045 (2001). The value of expert testimony depends upon the facts and reasons which form the basis of the expert's opinion. In re Custody of Brunken, 139 Ill. App. 3d 232, 239-40, 487 N.E.2d 397 (1985).

"The general rule is that an expert's testimony is to be judged by the rules of weight and credibility applied to all other witnesses." Hegener v. Board of Education, 208 Ill. App. 3d 701, 734, 567 N.E.2d 566 (1991). An appropriate method of testing the credibility of a witness is to show that on a prior occasion the witness made statements inconsistent with his or her trial testimony. Sommese v. Mailing Brothers, Inc., 36 Ill. 2d 263, 268-69, 222 N.E.2d 468 (1966).

In order to be used for impeachment, a witness's prior statement must be materially inconsistent with his trial testimony. Thompson v. Abbott Laboratories, 193 Ill. App. 3d 188, 205, 549 N.E.2d 1295 (1990). Moreover, before a statement may be admitted as a prior inconsistent statement, a proper foundation must be laid. Central Steel & Wire Co. v. Coating Research Corp.,53 Ill. App. 3d 943, 946, 369 N.E.2d 140 (1977).

The foundation is laid by directing the witness's attention to the time, place and circumstances of the statement and its substance, or in the case of a written instrument, by identifying the signature. Boyce v. Risch, 276 Ill. App. 3d 274, 278, 657 N.E.2d 1145 (1995); Vancil v. Fletcher, 90 Ill. App. 2d 277, 283, 232 N.E.2d 789 (1967). The purpose of the foundation is to alert the witness to the prior inconsistent statement in order to avoid unfair surprise and to provide the witness with an opportunity to deny, correct, or explain the statement. Boyce, 276 Ill. App. 3d at 278. A trial court's decision to permit a prior statement to be used for impeachment purposes will not be disturbed absent a clear abuse of discretion. Van Steemburg v. General Aviation, Inc., 243 Ill. App. 3d 299, 329, 611 N.E.2d 1144 (1993).

In this case, the trial court properly ruled in allowing defense counsel to cross-examine and impeach Dr. Blake using excerpts from his written medical report. In his written medical report, Dr. Blake interpreted the decelerations that he saw on the fetal monitor strip as "variable decelerations." At trial, Dr. Blake changed his opinion and testified on direct examination that he interpreted the decelerations as either "late decelerations," or "variable decelerations with a late component."

A proper foundation was laid for impeachment using Dr.

Blake's written medical report as a prior inconsistent statement during cross-examination when the doctor changed his opinion once more and testified that he interpreted the decelerations simply as "late decelerations." Defense counsel impeached Dr. Blake with the inconsistencies in the doctor's written medical report and his trial testimony as it related to the doctor's interpretation of the fetal heart decelerations on the fetal monitor strip.

Plaintiffs argue that allowing an expert to be impeached with his written medical report would unfairly handicap the expert because the report is only a threshold opinion usually prepared at a point before all of the facts are fully developed in discovery. We must disagree.

Section 2-622 does not prescribe the form that a written medical report must take and there is nothing in the statute that prevents the author of such a report from qualifying his opinions to make clear that they are preliminary opinions subject to amendment or supplementation upon the acquisition of additional information such as additional medical records or deposition testimony. Therefore, allowing an expert doctor to be impeached with his written medical report would not be unfair since the doctor could explain that his report was prepared during the early stages of discovery or he could attempt to explain any inconsistencies between his report and his trial testimony. See Cohen v. Dauphinee, 739 So. 2d 68, 77 (Fla. 1999) (Anstead, J., dissenting) (interpreting similar statute); see also Barnett v.Hidalgo, 478 Mich. 151, 164, 732 N.W.2d 472, 480 (2007).

It would then be up to the jury to assess those explanations in evaluating the credibility of the doctor's testimony. In some cases, the jury may conclude that the doctor sufficiently explained why his opinion had changed. In other cases, the jury may conclude that a particular explanation was not credible. But these are evaluations the jury should be entitled to make based on all of the relevant and competent evidence. Cohen, 739 So. 2d at 77 (Anstead, J., dissenting).

Allowing an expert to be cross-examined and impeached with his written medical report serves to further the underlying purpose of section 2-622 in screening out frivolous and nonmeritorious medical malpractice lawsuits. The expert's verified written medical report is the document that permits medical malpractice litigation to be initiated in the first place. Section 2-622(g) of the Code provides that a plaintiff's failure to comply with the pleading requirements of section 2-622(a)(1) shall be grounds for dismissal under section 2-619. 735 ILCS 5/2-622(g) (West 2004).

If the expert, in sworn testimony in the ensuing litigation, testifies to something inconsistent with the opinions set forth in his written medical report, then there may be legitimate concern as to whether there was valid cause to initiate the litigation in the first instance. See Cohen, 739 So. 2d at 76 (Anstead, J., dissenting). In addition, if a physician writing such a report knows that he or she may be subject to cross-examination concerning the opinions contained in the report, then the ...


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