The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Pending before the Court are two motions for partial summary judgment: one filed by the government (Doc. 45) and the other filed by plaintiffs (Doc. 47). Based on the following, the Court denies the government's motion and grants in part and denies in part plaintiffs' motion.
In November 2010, plaintiffs, CSC, a minor, by his parents and next friends, Patoya Bryant and Sean Cobbs, and Patoya Bryant and Sean Cobbs, individually filed suit against the United States, Southern Illinois Hospital Services, Erin M Shaw and Angela Boatright for negligence (Counts 1,3, 5, 7, & 11), family expense claims (Counts 2, 4, 6, 8, 10, 12, & 14), negligence-respondeat superior (Counts 9 & 13) (Doc. 2).*fn1 Plaintiffs allege that as a result of defendants' negligence, CSC, a minor, suffered brain damage before birth.
At about 2:10 a.m. on July 29, 2009, Patoya Bryant ("Patoya") was admitted to Memorial Hospital of Carbondale in Carbondale, Illinois. At this time, Patoya, was more than 35 weeks pregnant and complained of decreased fetal movement. Beginning around 2:23 a.m., Patoya was placed on an electric fetal monitor to monitor the heart rate of the fetus. As that time, CSC's fetal heart rate strip ("FHR") showed moderate long term variability and accelerations. These are reassuring FHR findings. At 2:25 a.m. on July 30, 2009, Dr. Afriyie-Gray discussed Patoya's condition with a nurse at the nurse's station.
Beginning around 7:56 a.m. on July 30, 2009, CSC's FHR strip showed minimal long term variability and absent accelerations. These are abnormal FHR tracings. Dr. Bishop reviewed CSC's FHR strips at this time. Also at this time, Angela Boatright was Patoya's nurse.
Around 8:30 a.m. that same day, Dr. Afriyie-Gray examined Patoya and reviewed the FHR strips. At this time, she was aware of the minimal long term variability and absent accelerations. Around 3:58 p.m. on July 30, 2009, CSC's FHR strip showed absent long term variability and no accelerations. Absent long term variability is an abnormal finding that can affect fetal well-being. Boatright was Patoya's nurse at this time.
At 5:32 p.m. and 8:00 p.m. on July 30, 2009, nurses Shaw and Boatright documented late decelerations on CSC's FHR strip. This is an abnormal finding. At 9:18 p.m. on July 30, 2009, Dr. Panchamukhi reviewed CSC's FHR strip and learned that the FHR strip showed minimal to absent variability, no accelerations and some late decelerations. At this time, Nurse Shaw was Patoya's nurse. Dr. Panchamukhi ordered a biophysical profile ("BPP"), which is a fetal well-being test, for the following morning.
From 9:18 p.m. on July 30, 2009 through at least 6:40 on July 31, 2009, CSC's FHR strip showed absent long term variability and no accelerations. During this time, CSC's baseline FHR also dropped. Those are abnormal findings and signs of compromised fetal well-being. Nurse Shaw was on duty at that time. On July 31, 2009 at 6:40, Dr. Bishop reviewed CSC's FHR strips.
At 7:00 a.m. on July 31, 2009, a second BPP was performed and Dr. Bishop was present for the examination. The BPP was 2 out of 10. That was an abnormal score, indicating that CSC's well-being was in jeopardy unless he was promptly delivered. At 7:10 a.m., Nurse Shaw told Dr. Bishop that CSC's BPP score was 2. A nursing note confirms this result and the conversation with Dr. Bishop. However, Dr. Bishop's operative report states that he thought the score was 6 out of 10 instead of 2 out of 10 and that was a result of miscommunication. From about 6:40 a.m. to 9:23 a.m., CSC's FHR strip continued to show absent variability, no decelerations and a low baseline heart rate. Dr. Bishop allowed Patoya to continue laboring during that time period.
At 9:23 a.m. on July 31, 2009, Dr. Bishop ordered a STAT cesarean for Patoya. Dr. Bishop delivered CSC at 9:38 a.m. on July 31, 2009. He was born in a very depressed state. His Apgar scores at 1, 5 and 10 minutes were 0, 1 and 2 (1-10 point scale). CSC was born with an ischemic brain injury and injury to his liver and kidneys.
A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence would-as a matter of law-conclude in the moving party's favor and is thus unnecessary. See Fed. R. Civ. Pro. 56(c). When evaluating a motion for summary judgment, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve "any doubt as to the existence of a genuine issue for trial ... against the moving party." Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nevertheless, "the Court's favor toward the non-moving party does not extend to drawing inferences that are supported by only speculation or conjecture." Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). The non-moving party must set forth specific facts showing that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. The key inquiry is the existence of evidence to support a plaintiff's claims or affirmative defenses, not ...