Court of Appeals of Illinois, First District, Fifth Division
MARQUES WATSON JR., a Minor, by Denise Leonard, His Mother and Guardian of His Estate; and DENISE LEONARD, Individually, Plaintiffs-Appellants,
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).
from the Circuit Court of Cook County. No. 12 L 3340
Honorable Lorna E. Propes, Judge Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Lampkin concurred in the
judgment and opinion.
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
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).
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,
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
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). 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). Thereafter, the parties engaged in
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
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
"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
"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
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,
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
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
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
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
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
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
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
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
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
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
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
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
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. 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
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