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Watson v. West Suburban Medical Center

Court of Appeals of Illinois, First District, Fifth Division

March 30, 2018

MARQUES WATSON JR., a Minor, by Denise Leonard, His Mother and Guardian of His Estate; and DENISE LEONARD, Individually, Plaintiffs-Appellants,
v.
WEST SUBURBAN MEDICAL CENTER; RESURRECTION HEALTH CARE CORPORATION; and VHS WEST SUBURBAN MEDICAL CENTER, INC., Defendants (West Suburban Medical Center and Resurrection Health Care Corporation, Defendants-Appellees).

          Appeal from the Circuit Court of Cook County. No. 12 L 3340 Honorable Lorna E. Propes, Judge Presiding.

          HALL JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

          OPINION

          HALL JUSTICE

         ¶ 1 The plaintiffs, Marques Watson Jr. and Denise Leonard, his mother, filed a medical malpractice complaint against the defendants, West Suburban Medical Center, Resurrection Health Care Corporation (collectively WSMC), and VHS West Suburban Medical Center, Inc. (VHS). The plaintiffs' motion to dismiss VHS voluntarily and without prejudice was granted prior to trial. The jury found for WSMC and against the plaintiffs, and the trial court entered judgment on the verdict. Following the denial of their posttrial motion, the plaintiffs filed a timely notice of appeal.

         ¶ 2 On appeal, the plaintiffs contend that the jury's verdict must be reversed and a new trial ordered because (1) numerous trial court errors denied them a fair trial and (2) the jury's verdict was against the manifest weight of the evidence. After careful review of the evidence at trial, we conclude that the plaintiffs received a fair trial, and the jury's verdict was not against the manifest weight of the evidence.

         ¶ 3 BACKGROUND

         ¶ 4 I. Facts

         ¶ 5 On December 11, 2008, 24-year-old Denise was 29 weeks into her pregnancy. On that date, she had a regularly scheduled appointment at the PCC Community Wellness Clinic. There she was seen by Dr. Thomas Staff who detected an abnormally high fetal heart rate. Dr. Staff directed Denise to go to the WSMC's obstetrical triage to determine if she was in preterm labor and to monitor the fetal heart rate. In accordance with Dr. Staff's direction, that evening Denise went to WSMC where she was seen by nurse Felicia Hughes-Schmidt (nurse Hughes) and Dr. Sherif Milik, the maternal/child health fellow (the fellow).[1]

         ¶ 6 Dr. Milik performed a sterile speculum exam to determine if Denise's amniotic membrane (membrane) had ruptured. The sterile speculum exam involved three tests to determine if the membrane had ruptured: (1) checking for the pooling of fluid in the posterior fornix of the vagina; (2) "ferning, " where a swab taken from the pooled fluid is tested; and (3) testing the pooled fluid with a nitrazine strip. The results of the three tests showed that the membrane had not ruptured. Dr. Milik then performed a digital exam to determine if Denise's cervix was dilated or shortened. After several hours of observation and a determination that Denise was not in premature labor, Dr. Milik discharged her at or around 11 p.m. on December 11, 2008.

         ¶ 7 At approximately 3 a.m. on December 12, 2008, Denise felt a gush of water down her leg and was taken by ambulance to WSMC. At this time, Dr. Christine Swartz was the fellow on the labor and delivery floor, and Dr. Natasha Diaz was the attending doctor (the attending). Denise was seen by nurse Hughes and Dr. Stephen Johnson, a second-year resident. According to Denise, Dr. Johnson entered her room and lifted the sheet covering her, commenting that he did not see anything. He then left the room. At 5:45 a.m. on December 12, 2008, Dr. Johnson signed an order discharging Denise from WSMC.

         ¶ 8 Upon arriving home, Denise slept until 7 p.m. When she woke up, she noticed her stomach had dropped. Rather than return to WSMC, she had a cousin drive her to University of Illinois Hospital (UIC) where she was admitted. A resident performed a sterile speculum exam, which revealed that Denise's membrane had ruptured. Because the rupture increased the risk of an infection, Denise was given antibiotics. As a matter of course, she was screened for Group B streptococcus (GBS).[2] Denise began displaying symptoms of infection and was diagnosed with clinical chorioamnionitis (chorio) due to a GBS infection and sepsis. Marques was delivered by an emergency C-section.

         ¶ 9 While at birth Marques's blood culture tested negative for GBS, he was given antibiotics for his first five days of life. He was taken off the antibiotics on December 17, 2008, but remained in the neonatal intensive care unit (NICU) of UIC. On December 26, 2008, Denise's C-section incision opened. Testing of the incision area was positive for GBS.

         ¶ 10 Between December 18, 2008, and January 3, 2009, Marques experienced incidents of slow heart rate, apnea, and low temperatures. On January 2, 2009, he had to be resuscitated, and he was restarted on antibiotics. On January 4, 2009, Marques tested positive for GBS and was diagnosed with meningitis, which resulted in significant brain damage.

         ¶ 11 II. Pretrial Proceedings

         ¶ 12 A. The Complaint

         ¶ 13 On March 28, 2012, the plaintiffs filed their medical malpractice complaint against WSMC. The first amended complaint was filed on October 12, 2012. Count I alleged that WSMC was negligent in that it failed to timely assess, diagnose, and treat fetal distress and/or infection in the face of the signs and symptoms; failed to perform the appropriate tests to rule out infections; failed to properly staff its labor and delivery floor; failed to timely call for an appropriate consultation; failed to properly monitor Denise; discharged Denise prematurely; failed to follow the "chain of command" to preclude Denise's premature discharge; and failed to follow up with Denise. The plaintiffs alleged further that WSMC's negligence resulted in personal and financial injuries to Marques. Count II was brought pursuant to the Rights of Married Persons Act (750 ILCS 65/15 (West 2012)) (commonly known as the Family Expense Act).[3] Thereafter, the parties engaged in extensive discovery.

         ¶ 14 B. Pretrial Rulings

         ¶ 15 1. Barring Rebuttal Witness Testimony

         ¶ 16 On January 13, 2016, Circuit Court Judge Janet Adams Brosnahan ordered that the plaintiffs disclose their rebuttal experts by January 20, 2016. On January 20, 2016, the plaintiffs disclosed Dr. Barry Schifrin as their rebuttal expert.

         ¶ 17 On January 22, 2016, WSMC filed an emergency motion to bar Dr. Schifrin's testimony. WSMC pointed out that on January 8, 2016, the parties had taken the evidence deposition of Dr. Sarah Kilpatrick, an obstetrician/gynecologist, who had treated Marques. To allow the plaintiffs' to present Dr. Schifrin's testimony would deprive WSMC of the opportunity to effectively and adequately cross-examine Dr. Kilpatrick. In the alternative, WSMC requested that Dr. Kilpatrick's evidence deposition be stricken, and the parties be permitted to redepose Dr. Kilpatrick following the completion of Dr. Schifrin's deposition. ¶ 18 On January 29, 2016, a hearing was held on WSMC's motion to bar Dr. Schifrin's rebuttal testimony. In ruling on the motion, Judge Brosnahan stated as follows:

"Any order or ruling I make today shouldn't be construed as a sanction. It's a remedy in the interest of promoting the goals of allowing the parties to have a fair trial on the merits.
And it is unfair and unduly prejudicial to allow the plaintiff[s] to get evidence testimony and then disclose an expert on the very same topics that were addressed by the witnesses in evidence.
So, I believe the least severe remedy I can fashion if the plaintiff[s] truly believe[ ] that they need this rebuttal testimony is to strike the evidence testimony and give you a chance to do a do-over. If the plaintiff[s] [do not] want to do that, then the plaintiff[s] ha[ve] to forgo the opportunity to disclose rebuttal opinions now on testimony that's already been received in evidence." Judge Brosnahan ordered Dr. Kilpatrick's evidence deposition stricken, unless the plaintiffs withdrew Dr. Schifrin's rebuttal disclosure by January 31, 2016. The plaintiffs chose to withdraw Dr. Schifrin's rebuttal disclosure.

         ¶ 19 2. Motions in Limine

         ¶ 20 a. Denise's Prior Abortion

         ¶ 21 The plaintiffs' motion in limine No. 30 sought to prevent the defense from making any reference, directly or indirectly, to the fact that Denise had an abortion. The trial court granted the motion, "[b]ut with the caveat that the defense can-may say that she had a prior pregnancy. And all witnesses will be cautioned to not say anything other than she had an earlier pregnancy."

         ¶ 22 b. Cumulative Testimony

         ¶ 23 WSMC's motion in limine No. 13 sought an order excluding cumulative testimony on standard of care and causation testimony, specifically by Drs. Edith Gurewitsch (maternal fetal medicine), Carolyn Crawford (neonatology), and Armando Correa (pediatric infectious diseases) and nursing expert, Debra Sperling, RN.

         ¶ 24 As to cumulative causation testimony, the trial court granted the motion as to the three doctors and by agreement as to Ms. Sperling. The court explained its ruling as follows:

"Now with regard to the [maternal fetal medicine] person and the [infectious disease] person, I can see where they might have slightly different testimony about causation, all the business about [GBS] and the time it takes to incubate or whatever a better word would be, all of that might be something that [infectious disease] person would address in more detail. And that is going to be up to you."

         ¶ 25 In discussing the standard of care, the plaintiffs' attorney explained that of the experts he disclosed, Dr. Gurewitsch, the maternal fetal medicine expert, would be testifying as to the standard of care applicable to Dr. Johnson with regard to the allegations of negligence against him. The following colloquy occurred:

"THE COURT: So far as the other witnesses, the only one who can testify about the standard of care is Gurewitsch?
* * * MR. FORD [(PLAINTIFFS' ATTORNEY)]: I mean, I think the others are qualified to do it. If I've done it through Gurewitsch-what you're saying is I have to make an election of who I am putting in? THE COURT: Yes.
MR. FORD: I understand that, Your Honor. And if all of those opinions get in through Gurewitsch, then I don't need to do it through anybody else. But I don't know what your Honor's rulings are yet. Although, I don't think that will be a problem.
THE COURT: Granted as to Gurewitsch only with regard to the standard of care."

         ¶ 26 III. Jury Trial

         ¶ 27 The issues at trial were (1) whether Dr. Johnson and/or nurse Hughes violated the standard of care applicable to their professions and (2) whether Marques suffered early or late onset of GBS. The following is a summary of the nonexpert and expert trial testimony pertinent to those issues.

         ¶ 28 A. For the Plaintiff

         ¶ 29 1. Dr. Stephen Johnson

         ¶ 30 On December 12, 2008, Dr. Johnson was a second-year resident at WSMC. He had no independent recollection of treating Denise. Dr. Johnson's testimony was based on his notes and Denise's medical records from December 12, 2008.

         ¶ 31 Dr. Johnson evaluated Denise to determine if she had undergone a spontaneous rupture of the membrane. The records showed that he did not order any lab work or a GBS test, and his notes did not state that he sought a consultation with an obstetrics-gynecologist physician.

         ¶ 32 Dr. Johnson agreed that had he performed a sterile speculum exam on a 20- to 30-week pregnant patient and found the membrane had ruptured, the standard of care required that the patient be admitted to the hospital and placed on antibiotics. The standard of care also required that Dr. Johnson consult the fellow or the attending. Dr. Johnson further agreed that it would be a deviation from the standard of care to perform a digital exam before or in lieu of a sterile speculum exam. In his notes, the doctor wrote, "not ruptured, " which meant that he evaluated Denise for a rupture of the membrane though he did not document the details of the testing. Dr. Johnson did document that he had performed a digital exam on Denise.

         ¶ 33 As a second-year resident, Dr. Johnson understood that he was not to discharge a patient before a consultation with the attending. To do so would have been a violation of the standard of care. On Denise's WSMC discharge order, the space for the fellow's or attending's signature was blank. Dr. Johnson maintained that he would never discharge a patient unless he had consulted with the fellow or the attending.

         ¶ 34 Dr. Johnson acknowledged that his notes did not indicate that the sterile speculum exam was performed. However, nurse Hughes made a notation that the nitrazine strip test was negative. Dr. Johnson's custom and practice were always to speak to the fellow or the attending before discharging a patient.

         ¶ 35 2. Natasha Diaz, MD

         ¶ 36 On December 12, 2008, Dr. Diaz was the attending for the labor and delivery floor at WSMC. She did not recall Denise, and her review of the WSMC records did not refresh her recollection. Denise's WSMC records did not show any notes by Dr. Diaz. It was Dr. Diaz's custom and practice to write a note in the chart if she has seen a patient. If she saw the patient and discussed the case with the fellow, she would sign the discharge order.

         ¶ 37 Dr. Diaz could not speculate on whether Dr. Johnson received an approval to discharge Denise. She acknowledged that at her deposition testimony, she testified that it would have been a violation of the standard of care if Dr. Johnson had discharged Denise without either Dr. Swartz's or her approval. Dr. Diaz explained that if she did not sign the discharge form, it could mean that she did not have any contact with the patient. She was not required to see a patient.

         ¶ 38 3. Christine Swartz, MD

         ¶ 39 On December 12, 2008, Dr. Swartz was a fellow at WSMC. She had no recollection of Denise, and a review of the records did not refresh her recollection. Dr. Swartz did not find any notes she had written in Denise's WSMC records. The WSMC records reflected that at 4:06 a.m. on December 12, 2008, Dr. Swartz was notified about Denise; the notification could have been via a pager.

         ¶ 40 According to the WSMC system in place in December 2008, if a resident saw a patient, it was the resident's responsibility to present the case to the attending or the fellow. If Dr. Swartz saw the patient, it was her custom and practice to write a note and countersign the resident's signature. It would be a deviation from the standard of care for a resident to discharge a patient without the consent of the attending. Dr. Swartz agreed that the lack of the attending's signature does not mean the attending did not see the patient. It would be unusual for a resident to discharge a patient without ever speaking to the attending. Dr. Swartz was familiar with situations in which medical records were not signed by the fellow or an attending. Such a situation could occur as a result of a shift change or from human error. The care providers were responsible to review the records prior to a shift change.

         ¶ 41 4. Felicia Hughes-Schmidt, RN

         ¶ 42 At the time of the events in this case, nurse Hughes had been a labor and delivery nurse for three years. Like Dr. Johnson, she had no independent recollection of Denise and her testimony was based on the WSMC records and her notes.

         ¶ 43 WSMC had a written policy referred to as the "chain of command." Under the chain of command, if a nurse feels that the doctor is not performing his duties properly, the nurse consults her immediate superior. If the nurse's concerns are not addressed at that level, the nurse continues up the authority level, even to the medical director of the department. Following the chain of command is considered a nursing responsibility.

         ¶ 44 On December 12, 2008, Denise returned to WSMC around 3 a.m., complaining of vaginal leaking. Nurse Hughes noted that when Denise coughed, a small amount of cloudy fluid ran down her legs; the fluid tested "[n]itrazine negative." Because of the risk of false negative result, the doctor would always do a confirming test during the speculum exam. Nurse Hughes acknowledged that she did not document any examination by Dr. Johnson.

         ¶ 45 Nurse Hughes was not permitted to order a GBS test unless she was ordered to do so by a doctor. In that case, she would send the GBS test swab to the laboratory. The results would not have been available for a couple of days and would not have been available prior to Denise's discharge on December 12, 2008.

         ¶ 46 On Denise's discharge record, nurse Hughes wrote that Denise was discharged by Dr. Johnson. She did not document the presence of either Dr. Swartz or Dr. Diaz. If either of them had ordered Denise's discharge, she would have documented that information. She acknowledged that it would have been a breach of the standard of care for Dr. Johnson to discharge Denise on his own authority.

         ¶ 47 Nurse Hughes explained that the doctors at WSMC routinely communicated with each other. When Dr. Johnson wrote that he discharged Denise, he actually got the order from the attending. She did not write "per the attending, " because she did not receive the order directly from the attending. Had nurse Hughes thought that Dr. Johnson was wrong to discharge Denise, she would have brought the matter to the attention of the charge nurse. The matter would then be discussed with the attending, Dr. Johnson, and the nurses. Since Denise's membrane had not ruptured and she was not in premature labor, it was proper to send her home.

         ¶ 48 Nurse Hughes tested the fluid that appeared when Denise coughed with the nitrazine stick. She noted that the nitrazine test was negative, meaning that the fluid was not amniotic fluid. The fact that Denise complained of pain in her back lower abdomen was not unusual for a patient in the third trimester of pregnancy. Nurse Hughes noted that at 4:06 a.m. she spoke with Dr. Swartz. At that time, she would have informed the doctor of Denise's condition. Dr. Swartz was not required to see the patient in person.

         ¶ 49 The documentation showed that at 4:10 a.m., nurse Hughes changed the entry for the GBS test from blank to negative. She explained that she had intended to change it to "unknown" rather than "negative" because GBS testing would not have been performed at 29 weeks.

         ¶ 50 Nurse Hughes was required to be present if Dr. Johnson was performing a digital exam. Had she witnessed Dr. Johnson performing a digital exam on a patient who was complaining that her membrane had ruptured, she would have stopped him because performing a digital exam introduced the risk of an infection.

         ¶ 51 The WSMC records reflected that Dr. Johnson saw Denise at 5 a.m. on December 12, 2008, and discharged her at 5:45 a.m. that morning. According to nurse Hughes, that was sufficient time for Dr. Johnson to perform the speculum and digital exams, report the findings to the attending and the fellow, discuss it with them, and for them to make a decision on the necessity of further care for the patient. Nurse Hughes would never allow a doctor or a nurse to conclude there was nothing wrong with a patient by merely lifting the sheet off the patient and looking at the patient. The fact that she did not document that Dr. Swartz saw Denise did not mean that Dr. Swartz was uninvolved in Denise's care.

         ¶ 52 5. Andre Kajdacsy-Balla, MD

         ¶ 53 Dr. Balla, the UIC pathologist, discussed the pathology report from the examination of the placenta following Marques's delivery. He explained that the testing of the placenta revealed the premature rupture of the membrane and "clinical" chorio. The existence of chorio must be confirmed by the pathologist and would then be referred to as "histological" chorio. The report referred to the " 'pale greenish discoloration of the fetal surface of the placenta.' " Such a sign is frequently associated with chorio but was not diagnostic. Another sign is the presence of neutrophils, which respond to fight an infection, inflammation, and irritation. The ultimate diagnosis was acute chorio. While related, the existence of chorio does not prove that GBS exists.

         ¶ 54 Dr. Balla agreed that even though the placenta was removed via the C-section, it could become contaminated as it was pulled through the various layers of skin and other parts of the incision. In this case, no culture of the placenta was done, and therefore, there is no proof that the placenta had GBS on it. No culture of the amniotic fluid was done. Dr. Balla acknowledged that the fetal membranes in this case were thin and transparent, whereas in severe cases of chorio, the fetal membranes are not transparent.

         ¶ 55 According to Dr. Balla, mycoplasm can cause chorio, but in the majority of cases, chorio is caused by GBS. About 20% of children born with placentas with chorio suffer ill effects.

         ¶ 56 6. Kelly Riggs, MD

         ¶ 57 In December 2008, Dr. Riggs was in her last year of residency at UIC. She had no recollection of Marques. Her review of a January 14, 2009, note she prepared did not refresh her recollection.

         ¶ 58 Dr. Riggs wrote the note for the infectious disease service. In preparing the note, Dr. Riggs would have reviewed the patient's chart, seen the patient, and discussed the case with the attending. After seeing the patient with the attending, she would write the note based on the patient's past medical history and the attending's recommendations. The attending in this case was Dr. Frank.

         ¶ 59 According to Dr. Riggs's note, Marques was born at 31-weeks gestation with late onset of GBS. He was given antibiotics for five days following delivery. On January 3, 2009, Marques was again given antibiotics to rule out necrotizing enterocolitis, an infection of the intestinal system. Blood and cerebral cultures were positive for GBS. The other antibiotics were discontinued, and Marques was started on penicillin. On January 4, 2009, Marques had a seizure and was given "phenobarb, " an antiepileptic medication. A lumbar puncture was done and grew GBS. A second lumbar puncture was done on January 6, 2009, revealing that the GBS was continuing to grow despite adequate treatment. Ultrasound and CT-scan tests performed on January 13, 2009, revealed multiple brain abscesses on both hemispheres of Marques's brain.

         ¶ 60 Reviewing Marques's birth history, Dr. Riggs found premature prolonged rupturing of the membrane at 3 a.m. on December 12, 2008. She noted that Denise was given antibiotics and the delivery was via C-section. There was a concern about chorio, an infection of the placenta, and that Denise's heart rate was fast. Denise's GBS status was listed as unknown. Marques was transferred to the neonatal intensive care unit due to prematurity and respiratory distress.

         ¶ 61 Dr. Riggs discussed with Dr. Frank how Marques could have gotten a GBS infection when he had been treated with the standard post-delivery protocols, i.e., antibiotics until the blood cultures were negative for five days. Dr. Frank believed that Marques suffered an overwhelming infection. The infection was treated with the antibiotics, but a few bacteria were not completely killed off and could have "seeded" his brain.

         ¶ 62 Dr. Riggs acknowledged that in her note she referred to Marques's condition multiple times as "late onset GBS, " meaning that GBS manifested itself after the first seven days of life. She was aware that the blood culture taken from Marques when he was born was negative for GBS.

         ¶ 63 Dr. Riggs was not aware that Denise's C-section incision tested positive for GBS. Although the NICU was a closed unit, mothers and fathers could visit, and mothers could breastfeed their babies.

         ¶ 64 7. Richard Boyer, MD

         ¶ 65 Dr. Boyer was board-certified in radiology, diagnostic radiology, pediatric neurology, and pediatric radiology. He testified as an expert as to the radiology studies performed on Marques.

         ¶ 66 On December 23, 2008, Marques underwent an ultrasound to rule out an intraventricular bleed. Premature babies such as Marques were prone to hemorrhages in certain parts of their brains, which were premature at that age. The immaturity of Marques's brain was consistent with his prematurity. While the findings were nonspecific, the ventricles were smaller than they should have been and the evidence of echogenicity, i.e., an increase of water in parts of the brain, indicated further investigation was necessary.

         ¶ 67 The January 13, 2009, ultrasound showed areas of Marques's brain that were filled with fluid that was destroying or liquefying those areas. Both hemispheres of his brain showed significant progression of disease. Since Marques was diagnosed with meningitis on January 3, 2009, Dr. Boyer opined that complications of meningitis were already present on the December 23, 2008, ultrasound and were full-blown by the time of the January 13, 2009, ultrasound.

         ¶ 68 Dr. Boyer reviewed the report of Dr. Winnie Mar, the UIC radiologist who read Marques's December 23, 2008, ultrasound. He disagreed with Dr. Mar's reading of the ultrasound as she failed to note any abnormality. He also disagreed with her finding that the ventricles were normal in shape and size. Dr. Boyer agreed with Dr. Mar that there was no hydrocephalus or hemorrhaging. But because those were the areas Dr. Mar concentrated on, her report was incomplete. Dr. Boyer acknowledged that he had not read Dr. Mar's deposition wherein she testified that she did not find any increased echogenicity.

         ¶ 69 Dr. Boyer acknowledged that if the culture taken from Denise's C-section wound on December 26, 2008, was positive for GBS, the findings from the January 13, 2009, ultrasound would be consistent with Marques having acquired GBS between December 26, 2008, and January 13, 2009. He still maintained that the December 23, 2008, ultrasound showed abnormalities and that Marques suffered from early onset of GBS, which was modified by the antibiotics he received following birth.

         ¶ 70 Dr. Boyer disagreed with Dr. Mar that Marques's ventricles were normal. He explained that in the ultrasound performed on December 23, 2008, Marques's ventricles were not as open as they should have been by his tenth day of life.

         ¶ 71 8. Theonia Kamman Boyd, MD

         ¶ 72 Dr. Boyd testified as an expert on pediatric pathology. She explained that if the membrane ruptures, the previously sterile amniotic fluid may become contaminated with bacteria that are present in other parts of the mother's body. The presence of the bacteria triggers the release of the mother's and the baby's infection-fighting cells. By itself, an infection can weaken the membrane and increase the risk of a rupture. The longer the baby stays in the contaminated amniotic fluid increases the risk that all three umbilical vessels will be infected.

         ¶ 73 Based on the histological features, the gestational age at delivery, and the GBS positive vaginal swab taken from Denise shortly after delivery, Dr. Boyd opined that it was more likely than not Marques was infected with GBS at the time of birth.[4] She further opined that GBS caused the chorio. Based on her pathological findings, Dr. Boyd opined that Marques suffered the early onset of GBS.

         ¶ 74 Dr. Boyd explained that a baby's pattern of inflammation takes more than a day to develop. Therefore, the infection must have been present a day and a half to two days prior to delivery. Dr. Boyd's findings were consistent with the rupture of the membrane 31 hours and 22 minutes prior to Marques's delivery on December 13, 2008. In terms of pathology, it would not be plausible for the rupture of the membrane to have occurred just prior to going to UIC on December 13, 2008, where she was given antibiotics and Marques's delivery was by emergency C-section. The pathology could not have evolved under any circumstance in an eight or nine hour time frame. Had the infection been there longer than four days, Marques would have died before delivery.

         ¶ 75 Dr. Boyd's opinion that Marques suffered from early onset of GBS was based on the pathological materials viewed in the clinical context. She acknowledged that using the 48hour time frame, Denise was infected prior to her examination by Dr. Milik or her appointment with Dr. Staff on December 11, 2008.

         ¶ 76 Dr. Boyd agreed that the clinical signs of chorio did not mean that histological chorio, as determined by the pathologist, was present; the reverse was true as well. A pathologist may find histological chorio where there were no clinical signs of the infection in the mother or the baby. Based on the inflammatory response Dr. Boyd observed microscopically, the infection was present from a day and a half to two days prior to Marques's delivery.

         ¶ 77 It was Dr. Boyd's opinion that, prior to delivery, Marques ingested amniotic fluid and microorganisms, which settled in his lungs and gut. The GBS cultured from Denise's vaginal swab was virulent, meaning it had the inherent ability to cause disease. However, it was plausible that the infection was not detected until January 3, 2009.

         ¶ 78 According to Dr. Boyd, based on the pathology results, the vaginal swab, and the course that followed the neonatal infection, it was more likely than not that early onset of ...


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