Bergman v. Kelsey

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Bergman v. Kelsey

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-1296 Rel

Case Date: 08/02/2007

Preview:FOURTH DIVISION August 2, 2007

No. 1-06-1296

KATHERINE BERGMAN, Special Adm'r of the Estate of Isaac Bergman, Deceased, Plaintiff-Appellee, v. ROBERT KELSEY, OLLENDORF and KELSEY, LTD., a Professional Corporation, and NORTHWESTERN MEMORIAL HOSPITAL, a Corporation, Defendants-Appellants.

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Appeal from the Circuit Court of Cook County.

Honorable Lynn M. Egan Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court: Plaintiff Katherine Bergman filed a medical malpractice suit against Robert Kelsey, Ollendorf and Kelsey, Ltd. and Northwestern Memorial Hospital (defendants) following the death of her newborn son from a Group B streptococcus (GBS) infection. Following a trial, on February 25, 2005, the jury returned a verdict in favor of plaintiff for $1,750,000. The parties agreed that the verdict was subject to a $225,000 setoff for a prior settlement, and the circuit court entered a $1,525,000 judgment against defendants. The circuit court subsequently denied defendants' posttrial motion and defendants now appeal. On appeal, defendants contend that the circuit court erred in denying their request for judgment notwithstanding the verdict (judgment n.o.v.) and a new trial. For the following reasons, we affirm.

1-06-1296 I. BACKGROUND On April 5, 2001, plaintiff filed an amended complaint at law. In her complaint, plaintiff alleged that defendants were negligent by failing to screen for GBS during the prenatal period and by failing to diagnose macrosomia (a fetus with significant overgrowth) and timely respond to signs of infection and fetal distress during labor. Plaintiff's theory about GBS was that a prenatal culture would have identified her as a carrier and prompted prophylactic administration of antibiotics, thereby preventing transmission of the organism to the fetus. Plaintiff also maintained that defendants permitted plaintiff to attempt a vaginal delivery when they knew or should have known that fetal macrosomia would prevent a safe delivery by that method. At trial, the parties' experts presented similar testimony about the standard of care applicable to GBS detection. Each expert witness agreed that the standard of care permitted physicians to choose one of two different options for managing possible GBS infections: the "culture" or the "risk-factor" approach. One of the primary differences between the two approaches concerns the timing of implementation. Under the culture approach, a pregnant woman is tested for the organism at 35 to 37 weeks of gestation. If the culture reveals the woman is positive for GBS, she is treated with antibiotics at the beginning of labor, even in the absence of any sign of infection. Under the risk-factor approach, treatment is deferred until a risk factor for infection is identified, such as preterm labor, ruptured membranes (when the woman's water breaks) for over 18 hours, a prior child who had GBS, and a maternal fever of 100.4 degrees or more. All witnesses agreed that both approaches were appropriate and conformed to the standard of care in 1999. Experts for plaintiff and defendants, Dr. Fields and Dr. Schwartz,

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1-06-1296 testified that the standard of care on this issue was a "national" standard. Plaintiff's expert Dr. Richard Fields testified that defendants deviated from the national standard of care in four areas: (1) failing to inform plaintiff of the two acceptable approaches to treat GBS, the approach adopted by defendants, and the risks and alternatives; (2) delaying the start of antibiotics provided to plaintiff; (3) failing to take into account the macrosomia, which should have resulted in certain discussions with plaintiff and a different method of delivery or a different method of delivery sooner; and (4) failing to undertake a cesarean section earlier based upon the abnormalities of the fetal heart tones or the fetal heart tracings. Dr. Fields testified that when a physician has what is thought to be two equal methods of taking care of a problem in medicine, the standard of care requires the physician to discuss the methods with the patient and help the patient make an informed consent decision as to which method should be adopted in her particular case. Dr. Fields testified that by not engaging plaintiff in such a discussion regarding the two approaches to treat GBS, defendants violated the standard of care. Dr. Fields testified that guidelines issued by the American College of Gynecologists (ACOG) and material from the American Academy of Pediatrics (AAP) stated that such a discussion should take place between a physician and patient. Dr. Fields testified that he based his opinion in part on his experience at Sinai and Sinai-Grace hospitals in Detroit, Michigan. Plaintiff's exhibits included the ACOG 1996 Committee Opinion on the "Prevention of Early-Onset Group B Streptococcal Disease in Newborns," relied on by Dr. Fields, which included a statement that obstetric providers use "either a strategy based on late prenatal culture

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1-06-1296 (35-37 weeks) as the primary risk determinant or a strategy based solely on clinical risk factors" (Emphasis Added). The ACOG opinion also provided in pertinent part: "Patients should be informed of the GBS prevention strategy used. This may be accomplished by providing patient information materials such as the patient information pamphlet produced by ACOG. If the strategy adopted by the provider is based solely on clinical risk factors, some patients may request that GBS cultures be done. Such requests from informed patients should be honored by obtaining a culture at 35-37 weeks of gestation as recommended by CDC [Center for Disease Control]." Plaintiff's exhibits also included the 1997 joint "Guidelines for Perinatal Care" by the American Academy of Pediatrics and ACOG, which stated in relevant part: "Obstetric providers should adopt a strategy for the prevention of earlyonset GBS disease in the newborn. * * *. Women should be informed of the GBS prevention strategy used. If the strategy adopted by the provider is based solely on clinical risk factors, some women may request GBS cultures. Such requests from informed women should be honored by obtaining a culture at 35-37 weeks of gestation." Dr. Fields also testified that in this case, defendants should have anticipated a long labor because this was plaintiff's first baby, the baby was thought to be large, plaintiff's cervix was not well-effaced, and the baby's head was high in the pelvis. Dr. Fields testified that the average first labor is 18 to 24 hours long and that, under the standard of care, defendants should have

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1-06-1296 anticipated a labor lasting longer than 18 hours. Dr. Fields testified that 90 % of mothers who delivered a baby infected with GBS tested positive for the organism when a prenatal culture was obtained. Dr. Fields testified that if a physician uses the risk-factor approach to treat GBS, once a labor has gone on longer than 18 hours, the physician administers antibiotics anyway, due to the increased risk of infection to the baby. Dr. Fields testified that plaintiff was nowhere close to delivery when the cesarean section was performed and that the prospects for vaginal delivery were poor because the baby was large. Dr. Fields testified that defendants therefore deviated from the standard of care by not providing plaintiff with antibiotics when plaintiff entered the hospital to induce labor at about 7:15 a.m., on April 5, 2000. As to causation, Dr. Fields testified that the death of the baby could have been avoided if defendants had administered antibiotics upon plaintiff's admission to the hospital. Dr. Fields also testified that macrosomia is described as a 4,500-gram fetal weight and that prophylactic cesarean section is the standard of care when a physician suspects a 4,500-gram fetus. Dr. Fields testified that about two weeks before plaintiff entered the hospital for an induction, an ultrasound showed a 3,660-gram fetal weight. Dr. Fields testified that babies gain a half pound, or 250 grams, each week that goes by in the last part of pregnancy. Dr. Fields testified that it was reasonably expected that when plaintiff entered the hospital two weeks after the ultrasound, the baby would weigh approximately 4,100 grams. Dr. Fields testified that ultrasound is plus or minus 15 % in accuracy, and therefore, the baby could have been 4,500 grams or more, or less than 4,500 grams if the error was in the other direction. Dr. Fields testified that the standard of care at 4,500 grams required defendants to discuss with plaintiff

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1-06-1296 having a cesarean section to avoid the risk of shoulder dystocia or damage to the baby's arm. Dr. Fields testified that the labor and delivery summary filed by one of the nurses at the hospital showed that plaintiff's baby weighed 4,875 grams. Dr. Fields also testified that defendants and other health care providers at the hospital were watching fetal heart tracings during plaintiff's delivery. Heart rate tracing is a device that measures the fetal heart rate in response to maternal contractions. Dr. Fields testified that there were enough abnormalities in the nurse's notes describing the fetal hear tracings to indicate a need for delivery by cesarean section. Dr. Fields testified that the nurse's notes indicated that at 11:45 p.m., "mild variables" were noted, which means that the heartbeat is falling during the contraction and it returns back to its baseline before the contraction ends. At 1:10 a.m., a nurse again noted that variables were continuing, but that the return to baseline was after the contraction was completed, which Dr. Fields testified was a "nonreassuring" sign. Dr. Fields testified that given the fall in the heart rate for a period of time, the variables with the late return to baseline, and no prospect of imminent vaginal delivery, the standard of care required cesarean section intervention at that time. Dr. Fields testified that the nurse's notes at 2:30 a.m. reflected that the variables continued. At 2:50 a.m., the notes indicate that variables continued, but that the fall in the heart rate was occurring after the uterine contraction. Dr. Fields testified that this late deceleration was another nonreassuring sign. The nurse's 2:55 a.m. notes referred to Dr. Kelsey reviewing the heart rate tracing strips. Dr. Fields' opinion with overwhelming medical certainty was that the fetal heart tracings showed abnormalities that should have caused a cesarean section to be performed sooner. Dr. Fields also testified that the death of the baby could have been avoided if an earlier

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1-06-1296 cesarean section had been performed. Dr. Fields testified that it would have been highly unlikely that the baby would have contracted GBS had a cesarean section delivery been performed because the baby would never have gotten into the vagina and birth canal, where the exposure to the bacteria took place. Plaintiff's expert Dr. John Seguin testified that based on the information in plaintiff's chart and information about the baby at birth, he believed that there was a deteriorating condition and that it would most likely have been reflected in abnormal fetal heart rate tracings, as many as four or five hours before birth. Dr. Seguin testified that he reviewed the nurses' notes and other information in plaintiff's chart, as well as information from when the baby was born, and plaintiff's and the baby's medical records. Dr. Seguin testified that a nursing note indicated "mild variables" at 11:45 p.m., which described that there was some decrease in the infant's heart rate not directly associated with a uterine contraction. Dr. Seguin identified a second note at 12:30 a.m., in which a nurse wrote "continuing to have mild to moderate variables." Dr. Seguin testified that "moderate" means more decreases in heart rate. He testified that a third nurse notation at 1:10 a.m. indicated continuing variables as more progression of a problem that was getting more prominent in the face of a fever that plaintiff developed by 10:30 p.m. Dr. Seguin testified that his opinion was that the baby contracted the GBS organism at or about the time that plaintiff's fever was first noted. Dr. Seguin also identified other evidence which he testified indicated an ongoing process depicting fetal distress. Dr. Seguin testified that the blood gas sample taken from the umbilical

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1-06-1296 vein when the baby was born was "severely abnormal," which he believed indicated that there was an ongoing hypoxic (low oxygen) level to the baby's tissues developing over time, probably several hours. Dr. Seguin testified that this was not a sudden issue, but the culmination of a continuing process. Dr. Seguin testified that the baby's condition after birth indicated that it was "severely ill" and that this was not just a recent event prior to delivery. Dr. Seguin explained that the "Apgar" scores which reflected the baby's condition at birth were zero, indicating an ongoing insult that developed over time rather than a sudden event. Dr. Seguin testified that the record showed that plaintiff had a temperature of 101 degrees at about 10:30 p.m. and was given antibiotics at about 12 midnight. Dr. Seguin testified that clinical trials and treatment of GBS has shown that there is an additional risk at either 12 or 18 hours of ruptured membranes for the infant getting sick. Dr. Seguin testified that in the context of plaintiff being in labor for about 14 hours, the risk of infection to the baby increased as the time of ruptured membranes continued. Dr. Seguin testified that plaintiff had ruptured membranes at about 7 a.m., and 18 hours after that would have been at about 1 a.m. Dr. Seguin testified that the earlier antibiotics are provided to a baby with GBS, the better the expected outcome. Dr. Seguin testified that had plaintiff received antibiotics upon her admission to the hospital, the death of the baby could have been prevented. Dr. Seguin testified that had plaintiff been cultured prenatally, she would have been shown to be a GBS carrier. Dr. Seguin testified that literature states that more than 90 % of mothers of babies who had GBS tested positive when they were cultured at 34 to 36 weeks of gestation. In 1999, if a mother was cultured and tested positive for GBS, the mother would be administered antibiotics at the time of admission to the

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1-06-1296 hospital. Dr. Seguin also testified that an earlier delivery by either route would have improved the baby's chances of survival in this case. Sherri Lee Haskins testified that she was a labor and delivery nurse and cared for plaintiff at the hospital on April 5, 1999. Haskins testified to the notations made during the evening nursing shift which culminated in the baby's birth. Haskins testified to the increasing fetal heart rate baseline noted in her records; a change in the long-term variability of the tracings beginning at 1:10a.m.; a prolonged five-minute deceleration in the tracings noted at 12:08 a.m.; continuing variables in the tracings during the early morning hours; specific temperature recordings documenting a maternal fever throughout the night; and the administration of fever-reducing medications. Defendants' experts all denied that the standard of care required a discussion with the patient about the GBS strategy adopted by her physician and there was no dispute at trial that defendants adopted the "risk-factor" approach without the sort of discussion described by Dr. Fields. Plaintiff testified that she would have chosen the culture approach if defendants advised her of this option. Defendants' expert Dr. Stanford Shulman testified that there are many different GBS strains and that plaintiff's strain was very virulent, replicating at a tremendous rate. Dr. Shulman testified that the baby in this case was "very, very severely affected by this very aggressive, overwhelming infection" and the baby died from "overwhelmingly very severe Group B streptococcal infection sepsis." Dr. Shulman testified that in some instances, such as in this case, no amount of antibiotics would overcome a devastating infection to the baby. Dr. Schulman

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1-06-1296 testified that the baby's death was unpredictable and unknowable. Dr. Shulman testified that there would be no way at all to know or anticipate this virulent strain of GBS and the kind of outcome in this case. Defendants' expert Dr. George Wendel testified that he believed that Dr. Kelsey conformed to the standard of care in all respects. Dr. Wendel testified that the standard of care in 1999 did not require Dr. Kelsey to inform plaintiff of the culture approach and risk-factor approach and ask her to decide which approach she wanted him to follow. Dr. Wendel testified that the standard of care did not require Dr. Kelsey to perform a cesarean section any sooner than he did at approximately 4:30 a.m., on April 6, 1999. Dr. Wendel also testified that the standard of care did not require Dr. Kelsey to offer a cesarean section based on the fact that the baby's estimated fetal weight was 4,000 grams. Dr. Wendel testified that the baby was macrosomic at birth, but he did not think that anyone knew the baby was macrosomic at the time plaintiff went into labor. Dr. Wendel's opinion was that the baby died from overwhelming virulent GBS infection. Dr. Wendel also testified that had plaintiff received a cesarean section before she went into active labor, the baby would never have developed GBS. Dr. Wendel testified that the standard of care in 1999 required the physician to choose and apply either the culture approach or the risk-factor approach. Dr. Wendel testified that it was reasonable for Dr. Kelsey to select the risk-factor approach and that he used the risk-factor approach appropriately in this case. The first risk factor that developed was plaintiff's fever, Dr. Kelsey then diagnosed chorioamnionitis (an inflammation of linings in the uterus), and Dr. Kelsey began administering broad-spectrum, very powerful antibiotics.

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1-06-1296 Dr. Wendel testified that the chance of culturing women is variable because some women shed the bacteria all of the time, and most women shed it intermittently. Dr. Wendel testified that based on studies, data would support a determination that if plaintiff had been GBS-positive when she gave birth at 41 weeks, if she had been cultured at 35 weeks, 6 weeks before and if she were a typical patient, she would have cultured negative. Defendants' expert Dr. Jeremy Marks testified that the baby died because of overwhelming GBS infection, which is an infection that is so large that the baby is unable to fight it despite antibiotics and has a high likelihood of death. Dr. Marks testified that the baby's death was not preventable. Defendant Dr. Kelsey testified that he relied on the 1996 ACOG opinion in determining the approach to adopt relative to GBS infections and to establish the standard of care. Dr. Kelsey testified that the baby died from a GBS infection and conceded that it was transmitted from plaintiff during labor. He also conceded that plaintiff was most likely a GBS carrier before she went into labor. Dr. Kelsey testified that if plaintiff had been cultured and shown to have been positive, he would have prescribed antibiotics for her as soon as she was admitted to the hospital. However, Dr. Kelsey testified that because plaintiff had such a virulent strain of GBS, the prophylactic administration of antibiotics would not have prevented the baby's death. Dr. Kelsey also disputed that 90 % of mothers who delivered a baby infected with GBS tested positive for the organism when a prenatal culture was obtained. Dr. Kelsey testified that "there is plenty of literature showing limitations of culture" and "there [are] a number of problems with the culture approach in particular." Dr. Kelsey also testified that he estimated the fetal weight of plaintiff's

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1-06-1296 baby before delivery to be 4,000 grams and testified that he believed plaintiff was going to have a very large baby. Following closing arguments and deliberations, the jury returned a verdict in favor of plaintiff in the amount of $1,750,000, which the parties agreed was subject to a $225,000 setoff. On May 6, 2006, the circuit court denied defendants' posttrial motion and defendants now appeal. II. ANALYSIS A. Defendants' Request for Judgment N.O.V. Defendants contend on appeal that the circuit court erred in denying their request for judgment n.o.v. where there was no basis for any of plaintiff's theories of liability. " ' In a medical malpractice action, a plaintiff must prove: (1) the proper standard of care by which to measure the defendants' conduct; (2) a negligent breach of the standard of care; and (3) the resulting injury proximately caused by the defendants' lack of skill or care.' " Clayton v. County of Cook, 346 Ill. App. 3d 367, 384 (2004), quoting Susnis v. Radfar, 317 Ill. App. 3d 817, 826 (2000). A judgment n.o.v. presents a question of law that appellate courts review de novo. Alwin v. Village of Wheeling, 371 Ill. App. 3d 898, 910-11 (2007), citing Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 547 (2005). A judgment n.o.v. should be granted " `only when all the evidence, viewed in a light most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict could stand based on the evidence.' " Alwin, 371 Ill. App. 3d at 911, quoting Knauerhaze, 361 Ill. App. 3d at 547. Our supreme court has further described the standard in

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1-06-1296 Maple v. Gustafson, 151 Ill. 2d 445, 452-53 (1992): "A trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable. [Citations.] Likewise, the appellate court should not usurp the function of the jury and substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way." Maple, 151 Ill. 2d at 452-53. "Thus, the standard for obtaining a [judgment n.o.v.] is a `very difficult standard to meet' and [is] limited to `extreme situations only.' " [Citations.]" Alwin, 371 Ill. App. 3d at 911, quoting Knauerhaze, 361 Ill. App. 3d at 548. 1. Standard of Care Relating to the Two Approaches to GBS Detection Defendants first assert that the circuit court erred in denying their request for judgment n.o.v. where there was no basis for plaintiff's claim that the standard of care required Dr. Kelsey to inform plaintiff of the two approaches to GBS and ask her to chose between them. Defendants argue that the sources cited by Dr. Fields do not support his opinion that the standard of care required such a discussion between Dr. Kelsey and plaintiff. The record shows that there was no challenge to Dr. Fields' competence to testify and Dr. Fields presented testimony that when a physician has what is thought to be two equal methods of taking care of a problem in medicine, the standard of care required the physician to discuss the methods with the patient and help the patient make an informed consent decision as to which method should be adopted in her particular case. Dr. Fields testified that by not engaging

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1-06-1296 plaintiff in such a discussion regarding the two approaches to treat GBS, Dr. Kelsey violated the standard of care. Dr. Fields testified that guidelines issued by the American College of Gynecologists (ACOG) and material from the American Academy of Pediatrics (AAP) state that such a discussion should take place between a physician and patient. Dr. Fields also testified that he based his opinion in part on his experience at Sinai and Sinai-Grace hospitals in Detroit, Michigan. Defendants disputed Dr. Fields' testimony about the standard of care. On crossexamination, defendants presented guidelines from the Detroit hospitals to impeach Dr. Fields' testimony. Dr. Fields testified on cross-examination that the guidelines defendants presented indicated that both approaches for the prevention of GBS infection in newborns were acceptable. Dr. Fields testified that while the guidelines did not mention informing the patient about the two approaches and asking the patient to decide, the guidelines were not the standard of care. Defendants also presented expert testimony denying that the standard of care required such a discussion between patient and physician, and defendants further argued that a 1996 ACOG opinion did not mention patient choice. The record shows that both parties offered conflicting expert testimony relating to the proper standard of care and defendants' alleged breach thereof. Thus, the conflicting testimony was sufficient to raise a question of fact to be decided by the jury and this court will not substitute its judgment for that of the jury and reweigh the credibility of the witnesses. Maple, 151 Ill. 2d at 452-53; see also Schuchman v. Stackable, 198 Ill. App. 3d 209, 222 (1990) (the jury is uniquely qualified to resolve conflicting medical testimony concerning the applicable standard of care and a defendant's breach of that standard); Sinclair v. Berlin, 325 Ill. App. 3d 458, 472

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1-06-1296 (2001) (it is the jury's duty to consider the conflicting evidence and resolve the discrepancies). Further, the record shows that defendants at trial stipulated that based on Dr. Fields' testimony "there is sufficient evidence in the record to support the giving of a jury instruction that contains an issue about whether Dr. Kelsey violated the standard of care by not having the Fields type discussion about the two different strategies and allowing the patient to choose." We also note that a general verdict was entered in the instant case. Under section 21201(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1201(d) (West 2000)), a general verdict can be sustained on any of several bases of liability and will not be reversed due to the impairment of one of the theories. Elam v. Lincoln Electric Co., 362 Ill. App. 3d 884, 890 (2005). Therefore, even if plaintiff's alternative theories should not have been presented to the jury, plaintiff still could have recovered under the separate theory of defendants' breach of the standard of care relating to discussing the two different strategies of treating GBS infections with plaintiff. We will nonetheless consider defendants' argument that plaintiff's alternative theories of liability should not have been submitted to the jury. 2. Standard of Care Relating to Prophylactic Antibiotic Treatment Defendants next assert that there was no basis for plaintiff's theory that the standard of care required Dr. Kelsey to give plaintiff antibiotics upon admission to the hospital. Defendants argue that their expert witness, Dr. Wendel, testified that "I've never heard of that," and that the risk-factor approach did not require Dr. Kelsey to give antibiotics to plaintiff at any time before she developed a fever. The record shows that plaintiff's expert Dr. Fields testified that Dr. Kelsey should have -15-

1-06-1296 anticipated a long labor because this was plaintiff's first baby, the baby was thought to be large, plaintiff's cervix was not well-effaced, and the baby's head was high in the pelvis. Dr. Fields testified that the average first labor is 18 to 24 hours long and that, under the standard of care, defendants should have anticipated a labor lasting longer than 18 hours. Dr. Fields testified that if a physician uses the risk-factor approach to treat GBS, once a labor has gone on longer than 18 hours, the physician administers antibiotics anyway. Dr. Fields testified that defendants deviated from the standard of care by not providing plaintiff with antibiotics when plaintiff entered the hospital to induce labor and that the death of the baby could have been avoided if defendants had administered antibiotics upon plaintiff's admission to the hospital. Defendants' expert Dr. Wendel testified that it was reasonable for Dr. Kelsey to select the risk-factor approach and that he used the risk-factor approach appropriately in this case. The first risk factor that developed was plaintiff's fever, Dr. Kelsey then diagnosed chorioamnionitis (an inflammation of linings in the uterus), and Dr. Kelsey began administering broad-spectrum, very powerful antibiotics. This conflicting evidence regarding the standard of care for administering antibiotics was properly submitted to the jury, and this court will not usurp the function of the jury and substitute its judgment for that of the jury. Maple, 151 Ill. 2d at 452-53; Schuchman, 198 Ill. App. 3d at 222; Sinclair, 325 Ill. App. 3d at 472. 3. Standard of Care Relating to Macrosomia Defendants next contend that judgment n.o.v. was proper in this case because Dr. Kelsey did not breach the standard of care regarding macrosomia and even if Dr. Kelsey had offered to perform a cesarean section to respond to macrosomia, there was no evidence that plaintiff would -16-

1-06-1296 have accepted that option. The record shows that the issue submitted to the jury involved whether defendant "failed to diagnose fetal macrosomia prior to and at the time of plaintiff's hospitalization, when he knew or should have known that the condition was present and would require a [cesarean] section procedure for the safe delivery of the baby." Dr. Fields and Dr. Kelsey both testified at trial that 4,500-grams represented the current medical thinking as to what constituted a macrosomic baby. Dr. Fields testified that prophylactic cesarean section is the standard of care when a physician suspects a 4,500 gram fetus. Dr. Fields estimated the fetal weight of plaintiff's baby to be 4,100 grams, while Dr. Kelsey estimated the baby's weight at 4,000 grams. Dr. Fields also testified that there was a 15 % error rate on ultrasounds and that an additional 500-gram weight gain could have been expected between the time of plaintiff's ultrasound and delivery. Dr. Fields and Dr. Kelsey testified that plaintiff's baby was above the 4,500 grams, constituting macrosomia, at birth. Dr. Fields and defendants' expert, Dr. Wendel, both testified that had plaintiff received a cesarean section before she went into active labor, the baby would never have developed GBS. Dr. Fields' opinion was that Dr. Kelsey deviated from the standard of care by failing to take into account the macrosomia, which should have resulted in discussions with plaintiff about a cesarean section at an earlier time. However, Dr. Wendel testified that the standard of care did not require Dr. Kelsey to perform a cesarean section any sooner than he did. This conflicting testimony was sufficient to raise a question of fact to be decided by the jury relating to the standard of care regarding macrosomia and Dr. Kelsey's alleged breach thereof. Maple, 151 Ill. 2d at 452-53; Schuchman, 198 Ill. App. 3d at 222; Sinclair, 325 Ill. App. 3d at 472. There was -17-

1-06-1296 no evidence in this case that plaintiff would have refused an earlier cesarean section had Dr. Kelsey discussed such an option with her and, contrary to defendants' assertion, such a factor is not determinative of whether Dr. Kelsey complied with the standard of care in this case. Defendants also contend that plaintiff's claim that Dr. Kelsey breached the standard of care regarding macrosomia is irrelevant where plaintiff failed to establish proximate cause where GBS was not a foreseeable result of any negligent treatment of macrosomia. "Proximate cause is one of three elements a plaintiff must prove to succeed in a negligence action: (1) the defendant[s] owed a duty of care; (2) the defendant[s] breached that duty; and (3) the plaintiff's resulting injury was proximately caused by the breach." Hooper v. County of Cook, 366 Ill. App. 3d 1, 6 (2006). The issue of the existence of proximate cause is ordinarily determined by the jury. Knauerhaze, 361 Ill. App. 3d at 548. "There are two requirements for a showing of proximate cause: cause in fact and legal cause." Hooper, 366 Ill. App. 3d at 7. Defendants, here, argue that Dr. Kelsey's actions were not the legal cause of injury. Legal cause presents a question of foreseeability. Legal cause is established if an injury was foreseeable as the type of harm that a reasonable person would expect to see as a likely result of his or her conduct. Knauerhaze, 361 Ill. App. 3d at 549. "A plaintiff must generally prove the elements of a medical negligence cause of action through medical expert testimony." Knauerhaze, 361 Ill. App. 3d at 549. "In order to sustain the burden of proof, a plaintiff's expert must demonstrate within a reasonable degree of medical certainty that the defendant's breach in the standard of care is more probably than not the cause of the injury." Knauerhaze, 361 Ill. App. 3d at 549. "A plaintiff does not need to present -18-

1-06-1296 unequivocal or unqualified evidence of causation but can meet [her] burden through the introduction of circumstantial evidence from which a ' "jury may infer other connected facts which usually and reasonably follow according to *** common experience." ' [Citation.]" Knauerhaze, 361 Ill. App. 3d at 549, quoting Thacker v. UNR Industires, Inc., 151 Ill. 2d 343, 357 (1992). The weight, sufficiency and credibility assessed to medical expert testimony is

within the province of the jury, as is, ultimately, the resolution of evidentiary conflicts with respect to the factual question of proximate cause. Knauerhaze, 361 Ill. App. 3d at 550. Here, Dr. Fields testified that the standard of care at 4,500 grams required defendants to discuss with plaintiff having a cesarean section to avoid the risk of shoulder dystocia or damage to the baby's arm. Dr. Fields testified that plaintiff was nowhere close to delivery when the cesarean section was performed and that the prospects for vaginal delivery where poor because the baby was large. Dr. Fields also testified that prolonged rupture of membranes longer than 18 hours, is one of the factors for GBS transmission to the baby. As a result of the increased risk of infection to the baby, Dr. Fields testified that prophylactic antibiotics should have been administered to plaintiff because it should have been anticipated that plaintiff would have a long labor because this was plaintiff's first baby, the baby was thought to be large, plaintiff's cervix was not well-effaced, and the baby's head was high in the pelvis. Dr. Fields also testified that the death of the baby could have been avoided if an earlier cesarean section had been performed. Dr. Fields explained that it would have been highly unlikely that the baby would have contracted GBS had a cesarean section delivery been performed because the baby would never have gotten into the vagina and birth canal, where the exposure to the bacteria took place. Dr. Seguin also -19-

1-06-1296 testified that an earlier delivery by either route would have improved the baby's chances of survival in this case. Defendants' experts all testified that Dr. Kelsey complied with the standard of care and that the baby's death was not foreseeable. Dr. Shulman testified that in some instances, such as in this case, no amount of antibiotics would overcome a devastating infection to the baby. Dr. Schulman testified that the baby's death was unpredictable and unknowable. Dr. Shulman testified that there would be no way at all to know or anticipate this virulent strain of GBS and the kind of outcome in this case. Dr. Wendel testified that the standard of care did not require Dr. Kelsey to perform a cesarean section any sooner than he did at approximately 4:30 a.m., on April 6, 1999. Dr. Wendel also testified that the standard of care did not require Dr. Kelsey to offer a cesarean section based on the fact that the baby's estimated fetal weight was 4,000 grams. Dr. Wendel testified that the baby was macrosomic at birth, but he did not think that anyone knew the baby was macrosomic at the time plaintiff went into labor. While defendants disputed the testimony of Dr. Fields and Dr. Seguin regarding the standard of care and proximate cause of injury, such disputes are the type that juries are expected to resolve through weighing the relative merit of the experts and their positions. Knauerhaze, 361 Ill. App. 3d at 550. Therefore, it was within the jury's purview to give greater weight to plaintiff's experts' opinions than to those of defendants expert's. Keeping in mind the standard applicable to expert testimony, and the standard of review applicable to an appeal of the denial of judgment n.o.v., we cannot say that the jury's determination on the issue of cause in fact was unfounded. -20-

1-06-1296 4. Testimony Regarding Fetal Heart Tracings to Show Hostile Environment Defendants next argue that there was no basis for plaintiff's claim that Dr. Kelsey should have performed a cesarean section earlier because the fetus was in a hostile environment, where the opinions of Dr. Fields and Dr. Seguin were based on speculation regarding fetal heart tracings that they never actually saw. As the circuit court noted in its order denying defendants' posttrial motion, this argument is identical to the one raised in defendants' motion in limine number five, which sought to bar expert testimony about the fetal monitor strips. The basis of that motion was the fact that the fetal monitor strips had been lost before any experts were able to review them, thereby rendering any expert opinion about them "glorified guesswork." After a hearing on defendants' motion, the circuit court denied the motion as it related to Dr. Fields, but took the matter under advisement as to Dr. Seguin pending review of his deposition testimony. The record shows that when the circuit court raised the matter on the following day to address the portion of the matter taken under advisement, defense counsel declared that the motion was withdrawn. The following colloquy occurred: "THE COURT: All right. I also took a portion of defendants' motion in limine number five under advisement

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