*1 in this contemplated the circumstances damages under of action for Act Rights the Human of and 5A—102 5A—101 case. While sections education, these higher of in institutions harassment address sexual 775 ILCS secondary schools. primary not extend provisions do 1996). (West 5A—102 through 5/5A—101 is one harassment of sexual problem that the recognize
We in institu much as secondary schools may primary occur in of However, strain bounds we cannot higher education. tions of dam right of action for private a imply construction to constitutional that the readily apparent I, 18, when it is ages under article section plaintiff extent a should a result. To the drafters did not intend such for violation damages against a school district allowed to recover respond adequately I, district fails article section where school students, it is incumbent by other of students to sexual harassment right of action under acknowledge legislature the Illinois upon attempt Baker, (“Any 2d at 266 Act. Rights Human See necessarily Act is Rights] scope [Human or narrow the broaden action right private Because we find legislature”). a matter for the reach I, 18, we do not under article section damages implied is not by the circuit court. question the second certified Certified answered. question FROSSARD, EJ., GALLAGHER, J., concur.
O’HARA Baby al., Special of the Estate et and as Adm’rs MARILEE SEEF Indiv. HOSPI Seef, Deceased, MEMORIAL Boy Plaintiffs-Appellants, v. INGALLS al., Defendants-Appellees. TAL et Division) (1st 1—98—1220, — 2576 cons. First District Nos. 1—98 30, 1999. Opinion filed December *2 FROSSARD, EJ., dissenting. O’HARA *3 Associates, Chicago (Phillip F. Maher and James E
Phillip F. Maher & of counsel),
Crawley, appellants. of for Culbertson, Fuller Chicago (Stephen R. Swofford and Paula Hinshaw & Tobin, counsel), appellees. of the court: delivered the
JUSTICE GALLAGHER ac- malpractice medical Plaintiffs Marilee and Michael Seef filed a Frank Sut- Hospital Memorial and Dr. Ingalls tion defendants of their son. Plaintiffs damages wrongful for the death kus to recover as a de- dismissing hospital appeal from the circuit court’s order in favor of judgment the court’s on the verdict fendant and from Hospital and Ingalls Memorial Dr. Sutkus. We affirm the dismissal regard to Dr. Sutkus. reverse and remand for a new trial with by prenatally and treated pregnant was Mrs. Seef became delivery Mrs. s estimated throughout pregnancy. Dr. Sutkus her Seef made to Dr. that Mrs. Seef prenatal date was June 1980. On visit June nothing found unusual. On Sutkus on June the doctor and had chills. She degrees ran a fever of 103.6 Mrs. Seef hospital. her evening go and he ordered called Dr. Sutkus Just before Mrs. Seef left home for the hospital, her water broke. At approximately p.m. that evening, Ingalls Mrs. Seef was admitted to Hospital. temperature Memorial Her at the hospital degrees. was 99.4 Dr. Sutkus went to the he after had been notified of Mrs. Seef s examining arrival and was her p.m. 10:30
Due to temperature Mrs. Seef s fluctuations and fetal heart rate upper range, within the of normal limits Dr. Sutkus ordered that an applied external fetal monitor track contractions and fetal heart rate. The monitor at 11:45 applied p.m. was and run at one centimeter per minute. Dr. strip routinely Sutkus testified later that a monitor is minute, run between one centimeter per and three centimeters Ingalls Hospital ran its monitors at one per centimeter minute in paper. Running order to save the monitor at three centimeters per expands configuration tracing minute a greater clarity interpretation allows of the fetal heart rate contractions. Dr. customarily ap- Sutkus testified that he watched proximately 15 to 20 of the strip nothing minutes and saw here that him any problems. alerted He went to a lounge doctors’ feet from away Mrs. Seef s room to did rest. Sutkus not see Mrs. Seef again a.m., until 3:05 when he was woken a call from a Be- nurse. lounge tween the time that Dr. Sutkus retired to the he saw when a.m., nursing Mrs. Seef at 3:08 staff monitored Mrs. Seef s labor. a.m., At strips .3:08 Sutkus examined latest monitor and found which him He internal applied abnormalities caused some concern. and, readings, monitor to the fetus based perform on those decided to (C-section). an emergency baby caesarean section The was stillborn. Although anything indicating Dr. Sutkus did not see an infection C-section, during the he did take a culture sample Mrs. Seef s placenta. The culture developed show that Mrs. Seef had a staphylococcus (staph) autopsy aureus An performed infection. on baby and it was determined that the cause of death was intrauter- ine anoxia or oxygen. baby lack of No cultures were taken from the so no determination could be made as to whether he was infected as well. that, a.m.,
In deposition, prior his 1984 Dr. Sutkus testified to 3:05 strips irregularities the monitor had fetal heart shown few rate but that the fetus had recovered each time. He testified even if he a.m., he done strips prior seen the monitor to 3:05 would anything differently. following colloquy during depo- occurred sition:
“Q. sheets, anything Wasthere of those that is those fetal *4 you them, strips, monitor sheets or want to call that would however you you something help have caused to do this child had you on napping transpiring been and had been aware of what was strips? those fetal monitor
A. No.
Q. everything okay up you’re So to 3:05 a.m. as far as concerned, correct? Yes,acceptable.
A. Q. Acceptable. that mean that Does there was some deviation might you that cause some concern feel but didn’t it was sufficient? A. Not sufficient to act.
Q. just To It waiting; act. would call for watchful is that what you mean?
A. That’s correct.
Q. At already 3:05 a.m. wasn’t it too anything? late to do In retrospect, yes.” A. originally
Plaintiffs 16, 1981, filed suit on November but volunta- rily dismissed that action on June 1986. Plaintiffs refiled the case in 1987 but the trial court held that could not recover dam- ages parental society loss of for the death of a stillborn fetus. The appellate court reversed ruling supreme 1990. The court af- firmed 1991. Plaintiffs reinstated their case on June 1992. 11, 1996, July On plaintiffs filed their first complaint amended against Ingalls Memorial Hospital and Dr. against Sutkus. Count I alleged, main, Sutkus in the that the doctor’s provide failure to ap- care, propriate prenatal to correctly interpret the fetal monitor strip, perform timely C-section baby’s caused the útero death. Count II Ingalls Hospital Memorial alleged that the hospital employees’ failure to accurately interpret the fetal moni- tor strip, failure to run the strip at three per minute, centimeters fail- ure to record accurate data regarding distress, the fetus’ failure to rec- ognize labor, abnormal failure to intervene appropriately by turning Mrs. Seef on her side giving oxygen her IVs, and administering respond failure to appropriately signs of fetal distress and abnormal labor by notifying Dr. Sutkus appropriate another and/or medical person proximately caused the in útero death.
On March Ingalls Hospital filed a motion limine to bar all nursing expert, nurse Hall, Sharon and obstetrical expert, Lilling, Dr. Max hospital’s nurses deviated from the standard of care failing Dr. Sut- kus earlier changes on the fetal monitor strips. Nurse Hall was to that, testify based on her interpretation of the data monitor strips, the should nurses have notified Dr. Sutkus by 1:25 a.m. Nurse Hall was also testify if Dr. Sutkus had not seemed earlier, concerned when notified the nurses should have contacted supervisor their explained concerns, their and that the nurses should run the external fetal monitor at three per centimeters *5 physician that a could Nurse Hall stated patient
minute for a labor. that, minute per centimeter but the monitor be run at one order that to three picture, they go could if nurses needed a clearer a medical Because she was not minute on their own. per centimeters the al- opinion as to whether provide Hall could not an expert, nurse caused the proximately of care from the standard leged deviations baby’s death. that, interpretation on testify based his Lilling
Dr. was to contacted Dr. Sutkus the nurses should have strips, fetal monitor external fetal moni- running find that Lilling Dr. did not 1:45 a.m. a deviation from the standard per minute was tor at one centimeter monitor operate to nurses had not failed care and stated that the properly. for fail- “regarding deviations testimony that hospital argued
The it did not must be barred because ure to earlier judge agreed The trial of stillbirth.” injury cause the claimed if had testified even Dr. Sutkus testimony because barred such earlier, not have acted sooner. him he would had notified the nurses The court testifying at all. court, fact, nurse Hall from barred The was too supervisor need to call a testimony regarding the found her had disclosed plaintiffs removed from what and too far speculative to Hall was unable and that nurse interrogatories, to their answers running speed connecting the causation proximate provide death. the monitor and regarding deviations only expert witness plaintiffs’ Since Hall was made suggestion, hospital nurses, the trial court’s on The trial cause. proximate on lack of to dismiss based oral motion 5, At the trial March 1998. to dismiss on granted the motion court mo made a written Hospital then Ingalls Memorial request, court’s reiterated 9, 1998, the trial court hearing, At a March tion to dismiss. motion to plaintiffs’ and denied dismissing that it was motion to defendant’s reconsider, opposition filed as a “motion Supreme for a hospital’s request The trial court refused dismiss.” 304(a)) 304(a) (155 just there was no finding that Ill. 2d R. Court Rule The court order. of the dismissal delay appeal enforcement or cause to prejudice. with Hospital dismissing Ingalls entered an order finality appealability language as to stated that The order also in the trial was entered judgment the time be entered at would Dr. Sutkus. trial, filed a motion 1998, plaintiffs 10, day before March
On Dr. testimony of deposition 1998, video evidence the March bar Supreme pursuant opinions failure to disclose Depp for Richard 213). Dr. Sutkus (166 that Plaintiffs asserted Ill. 2d R. Court Rule Depp disclose as an witness until after court- expert did not Dr. discovery passed. deadline had imposed December deadline, 3, 1996, for April denied the motion. Before the counsel stating “as plaintiffs’ Dr. Sutkus had sent a letter to counsel indicated,” previously they Depp expert had Dr. as their in the named case, discovery opinions that Dr. had set forth in a 1985 Depp’s been by plaintiffs’ in the deposition previous original conducted counsel action, all opinions original and that forth in the case set were February 20, 1997, On had readopted. counsel for Dr. Sutkus sent them plaintiffs’ reminding plaintiffs’ letter to counsel counsel deposition continued Dr. and had not rescheduled it and Depp 213(f) that Dr. had yet plaintiffs’ Sutkus’ counsel to receive Rule 213(g) Rule interrogatories. August On counsel for Dr. Sut- kus had sent a Dr. offering Depp depo- letter counsel for again outlining opinions. Although sition for Depp’s counsel times, Depp Dr. Sutkus offered deposition several *6 plaintiffs discovery did not conduct a deposition. new 1998, 11,
On March the jury trial Dr. Sutkus commenced. presented Plaintiffs Dr. Billing expert. as their medical pre- Sutkus Schulman, pediatric sented a to expert, infectious disease and was present the video deposition During evidence of Dr. the Depp. evidence deposition, the parties agreed standing objection: to a 213 Rule all objections Rule 213 preserved presentation were for the trial judge. Therefore, 11, on judge March the trial the parties met with and a conducted objections six-hour review of Rule 213 deposition. review, Following evidence the in-chambers the video tape was recut to reflect the sustained objections prior presentation the jury. 1998, 18,
On March jury the returned verdict in favor of Dr. Sut- kus and the trial court judgment jury’s entered on the verdict. The court also separate 9, 1998, entered a making order the March order dismissing Ingalls Memorial Hospital with final prejudice appeal- pursuant 304(a), able to Supreme 18, Court Rule of March 1998. April 8, 1998,
On plaintiffs notice of appeal filed a from the order 9, 1998, of March granting Ingalls dismissal favor of Memorial Hospital, 18, and from 1998, making 9, the order of March the March 1998, 1, order final appealable. May 1998, having On granted been an file, extension of time in which plaintiffs posttrial filed a motion against the judgment the jury seeking on verdict trial. The post- new trial motion argument Ingalls’ included extensive regarding dismissal. 30, On 1998, June oral argument, after the court the posttrial denied July 10, 1998, On plaintiffs motion. appeal filed notice of “from the jury judgment 18, 1998, verdict and the entered on verdict on March
14 County and from the order entered in the Circuit Court of Cook 30, 1998, denying [sic] June Plaintiffs Post Trial The two Motion.” appeals have been consolidated. jurisdiction ap first the of this over the
We address issue court’s dismissing Ingalls from order peal Hospital. Citing (155 303), argues 303 Ill. 2d R. Supreme Court Rule subsequent filing filed a posttrial because motion of 9, 1998, their notice from the dismissal order of March appeal nullity. appeal premature disagree. initial was and rendered a We judgment jury trial court entered on the verdict on March 18, 1998, thereby parties making disposing of claims of 9, 1998, judgment order March and the on the both dismissal 18, 1998, Although verdict of March final. dismissal order 304(a) 18, 1998, appealable on the court made a Rule became March finding delaying of no reason of the dis just appeal for enforcement 304(a) 304(a)) (155 R. appeals missal order. Rule Ill. 2d concerns from final judgments dispose proceeding that do entire and was not an “ disposition intended to ‘an to be taken before final permit appeal appropri an immediate appeal the case where court considers ” 344, 353, Elg Whittington, 119 Ill. 2d 518 N.E.2d 1238 ate.’ v. 200, 203, (1987), 13 Ill. 2d 148 N.E.2d quoting Nigro, Ariola (1958). here, specifically case Such is where 304(a) Rule kept together, intended that the two issues be Litwin, Ill. finding unnecessary. Poulos v.
N.E.2d premature. order was not appeal Plaintiffs’ the dismissal 304(a) in part: Rule provides multiple
“If involved in multiple parties or claims relief are action, as to appeal may judgment an be taken from a final one an only if parties or claims the trial or more but fewer than all just finding is no rea express court has made written there *7 Such a find delaying appeal son for either enforcement or both. ing may entry judgment at of the the or there be made the time of any party. motion The after the court’s own motion or on of provided as in Rule 303. filing appeal time a shall be notice for of filing in 303 the notice computing provided In the time Rule of for the date entry required finding shall be treated as appeal, the the of added.) 155 Ill. 2d R. (Emphasis entry judgment.” the of of final 304(a). 303 in Court Rule filing appeal Supreme time for is stated follows: *** days after within 30 the appeal notice of must filed “[T]he from, or, timely if post-trial a
entry judgment appealed final of the
15 *** filed, days against judgment the is 30 motion directed within entry pending disposing post- after the of the of the last order judgment motion.
(2) timely by any filed post-judgment When motion has been case, party, jury nonjury appeal in whether case or a a notice of entry disposing pending post- the the order the last filed before of of judgment by motion shall have no and shall be withdrawn the effect it, by party moving pursuant who for dismissal to Rule 309. fled timely post-judgment This is so the motion filed before whether was appeal or after date on A the which the notice of was filed. new no appeal prescribed tice must be within the time measured of fled motion, entry disposing post-judgment the the order the from of of (a)(1) provided subparagraph (Emphasis as is ed.) of this rule.” add (a)(2). 303(a)(1), 155 Ill. 2d Rs. 1998, 303, 18, plaintiffs days
Pursuant to Rule had 30 from March hospital’s which to file a notice of appeal the dismissal order a posttrial against unless motion directed that order Ill. was filed. 155 303(a)(1). case, 2d R. In the posttrial instant did not file a against order-, therefore, motion the 30-day period dismissal the filing an appeal from the dismissal order was not tolled. Plaintiffs appeal filed their notice the prescribed within time on 8, April appeal 1998. That by filing was rendered moot plaintiffs’ posttrial case, motion second order in judgment jury on the jurisdic verdict. We note that the trial lost court tion over the hospital dismissal the appeal once had been filed (People Bounds, (1998)); v. 560, Ill. 2d 694 N.E.2d therefore, plaintiffs’ argument regarding the dismissal of posttrial their motion against surplusage. verdict was
We next
address
contention
trial
abused its discretion when it granted Ingalls
Hospital’s
mo
tion
limine and barred
testifying
nurse Hall from
toas
deviations
from the
hospital’s
standard
care
nurses. The admission of
evidence is
within
discretion
trial court and the trial court’s
ruling will not be reversed
an abuse of that
absent
discretion. Gill v.
(1993).
Foster,
304, 312-13,
190,
157 Ill. 2d
626 N.E.2d
In a medi
(1)
action,
cal malpractice
plaintiffs have the burden of proving:
proper standard of care by
conduct;
which to measure a defendant’s
(2)
(3)
negligent
care;
breach of the standard of
that the result
ing injury
House,
caused
the breach.
Higgens
543,
App.
288 Ill.
680 N.E.2d
Plaintiffs
present
must
expert testimony to
these
Hig
establish
three elements.
gens,
3d at
National Trust Swedish 792, 652 N.E.2d 1096-97 testimony of nurse Hall and Dr. presented
Plaintiffs here the prove from standard of care Lilling major three deviations earlier, Dr. to run the the nurses: failure to Sutkus failure moni minute, supervi three and failure to contact a per tor at centimeters hearing, Dr. a the court appeared sor if Sutkus unconcerned. After that, although may been stan found there have deviations nurses, they not cause proximate dard of care were that, testimony. death The court stated “even baby’s and barred nursing three from a though may there have been deviation all [sic], at least two of viewpoint, they proximate were not a caused command, speculative that you them. And the one on chain of it’s so testimony tie that in.” enough, my opinion, opinion don’t have concur. We nothing differently he have
Dr. Sutkus testified that would done earlier, thereby negating any strips had the monitor even he seen Dr. notifying him earlier. the nurses notified Sut- argument If earlier, strips earlier monitor would not interpretation kus his those prior to problem requiring immediate intervention have indicated problem sign that the first was on 3:05 a.m. Dr. Sutkus testified the earlier monitor strip starting monitor at 3:05 a.m. that adequate recovery. showed fetal strips “self-serving argues hypothetical” Dr.
The dissent that Sutkus’ baby he he not have delivered the sooner had testimony that would causal link between strips the earlier monitor does not break the seen initially the baby. the death of We note that the nurses’ deviations and nor self-serving hypothetical. testimony Dr. Sutkus’ was neither regard- Rather, inculpatory, unequivocal statement Dr. Sutkus made an He took full blame for at the time of the incident. ing his mental state that, upon the state of his knowl- by admitting based death the,, of the situation. time, he seriousness edge misapprehended at the that, baby have delivered hindsight, the should been He admitted not have what Dr. Sutkus would would sooner. This evidence of Lilling Dr. cannot Lilling’s testimony. Dr. negated by done cannot be contradict mental state was nor regarding what Dr. Sutkus’ testify thought at the time. what Dr. Sutkus ob-
Further, any reasonably qualified Lilling’s li- goes sooner Dr. Sutkus’ baby have stetrician would delivered already admit- Dr. Sutkus hospital’s. the nurses’ or ability, qualified reasonably that, contrary what other apparently ted done, hilling’s he within Dr. ken would have would obstetrician him to show nothing differently done if the nurses had notified earlier noti- strips. Assuming arguendo him the monitor nurses had he earlier, fied several Dr. Sutkus admitted that Dr. Sutkus hours misinterpreted strips would have the data on the monitor in the same earlier way. interpretation stated based on his Sutkus strips, until acceptable up monitor the situation was 3:05 a.m. *9 upon. that were no By there deviations sufficient to act his own admis- sion, notify the nurses’ failure to Dr. earlier made no differ- Sutkus ence in case. this monitor, regard running speed
With of the external fetal we note, trial did, Lilling as the that both Dr. Hall saw nurse problems on the same Dr. one-centimeter-per-minute strips where no problems. Sutkus saw The court “the argument found this best that was there no difference” between the one-centimeter-per-minute speed. Lilling three-centimeters-per-minute expert Medical Dr. running strip per stated that the at one not a centimeter minute was deviation the of care types strips standard the nurses. Both of accurately would reflect contractions and heart rate. The problem was data, one interpretation of of the not the with it was speed which generated. agree
We with the trial court plaintiffs’ argument that regarding the the duty notify of nurses to a supervisor speculative. is too Nurse Hall not could state it would necessary whether have been a in supervisor this case because Sutkus was never notified to start Further, with. provide opinion she could not medical as to what done, provide Sutkus should or would opinion have could not an as to supervisor what the would have done or whether another would doctor called, have had could provide medical as to whether another doctor have anything differently would done than Dr. Sutkus Dr. Lilling did. testified that if the been C-section had performed by a.m., 2:15 the in death útero could have been prevented. argue provides Plaintiffs that this testimony proximate the duty cause nexus with the notify supervisor nurses’ if Dr. Sutkus But, above, did not take action. as discussed the “chain of command” was testimony speculative too and did not a standard care establish in the first instance. the argue
Plaintiffs that trial court erred when it dismissed plaintiffs’ against case Ingalls Hospital through untimely Memorial summary motion for We note that the instant case judgment. first summary arguments regard does not involve judgment ing summary judgment misplaced. its explained are The trial court dismissing hospital through reasons a motion to for bar follows: summary days for “[I]s this essence of motion within the rule days the 45 rule? Or is a motion in limine to outside this bar it If prejudicial might [of] because effect have? it is bar, latter, agreeing it’s a motion to and I’m that it is. keep parties Perhaps parties kept I can in or could have during kept parties during plaintiffs dire. have voir Could my nothing presented case chief and then because when expert opinion bar to Hall as as to a of stan- nurse to an deviation I care, injury, that would proximate dard that was a cause of way for knock the out of the of a motion directed verdict on close of case. really plaintiff saying.
And is I think that could have that’s what during And I kept period him in of time. meant that would during here would kept period, have them voir dire which have side, peremptory challenges than It been seven for each rather five. I kept purpose would meant have them here for the would plaintiff’s cross-examination witnesses. And other reasons, I other expert when could see no witnesses were available testify testify plaintiff named been Hospital.” hospital, Ingalls advantage of a motion in limine is that it allows the exclusion of jury’s and the trial court can presence evidence outside prejudice parties. motion in limine to one or more use a to avoid Park, Lake Chicago Ry. Crystal & Illinois Midland Co. Industrial *10 (1992). 653, 337, Inc., 659, Ill. 588 342 As trial App. 225 3d N.E.2d no stated: “I found evidence that —credible evidence court cause, not from stan jury approximate [sic] could determine deviation everybody prejudicial of care. And I felt that would be to dard from the standard of care.” about deviation actually a Assuming the motion to dismiss was mo arguendo that trial could consider it. summary judgment, for court tion 2.1(f) County, Cook of the rules of the circuit court of Pursuant Rule days summary must be filed at least 45 before judgment a motion good and for cause “except prior trial date leave of court 2.1(f) (eff. 1992). 23, As the above April Cook Co. Cir. Ct. R. shown.” it show, give court indicated would leave from the court quotes Even if the order of dismissal was good file a motion for cause shown. rule, ground for “that fact is not in violation of a local circuit here, anyone.” done Mi where, injustice has been reversal no 412, Co., 410, App. 2d 139 Edison narik Commonwealth (1957). 854, 855 N.E.2d motion to dismiss an
Regardless of whether this was a issues judgment, genuine there were no untimely summary motion for
19
above, plaintiffs
a
As
jury
of material fact for
to consider.1
discussed
expert testimony
prove
had no
that the nurses’ deviations from
Proximate cause
proximately
standard of care
caused
death.
ordinarily
question
“is
of fact to
determined from all the attend
be
circumstances,
ing
only
question
and it can
of law when the facts
are not
are
such that there can be no differ
only undisputed but
also
judgment
ence in the
men as to the inferences to be
reasonable
Co.,
Ill.
drawn from them.” Merlo v. Public Service
court,
665,
Foster,
N.E.2d
In
on
the trial
Gill v.
relied
our supreme
summary judgment
court affirmed
for the defendant
discharge
where a
notify
surgeon
nurse’s failure to
plaintiffs complaints
pain
plaintiffs
of chest
was not the cause of
injury
already
pain
thought
because
doctor
knew of the
it a
normal byproduct
surgery.
supreme
court stated that “even as
suming the nurse had
duty
treating physi
breached a
to inform the
cian of the patient’s complaint,
this breach did not
cause
delay
diagnosis
Gill,
the correct
of the plaintiffs condition.”
157 Ill. 2d at
Similarly,
Citing
Haist v.
(1992),
Ill.
1We are aware of this in court’s recent Suttle v. Lake Forest Hospital, 97—3567, 30, 1999, September unpersuasive. No. filed it and find 1— 30, 1999, [Publisher’s September Note: The opinion in Suttle was withdrawn opinion 30, may and a new was filed June 2000. The at new be found App. 96.] 315 Ill. 3d
20
cases,
may may
done
we need not infer what Dr. Sutkus
provided
had he been notified earlier. Dr. Sutkus
that answer himself:
nothing differently.
he would have done
95,
Hospital,
Holton v. Memorial
176 Ill. 2d
679 N.E.2d
(1997),
Gill,
distinguishing
inapposite
cited
as
is
plaintiffs
Holton,
neglected
case at bar. In
the nurses had
to document the
chart,
paralysis
patient
thereby
in her
plaintiffs slowly progressing
her
had
causing
paraly
doctors
assume that she
suffered sudden
delayed.
sis. Plaintiff was
and her treatment
The doc
misdiagnosed
they
tors testified that
would have undertaken a different course
they
paralysis
progressive
had
known that the
was
rather
treatment
Therefore,
permitted
found that the evidence
than sudden.
the court
negligent acts and omissions
[nurses’]
“the inference that
correctly diagnosing
and treat
prevented [plaintiffs] physicians
Holton,
110,
at 1209. Hol
ing her condition.”
Plaintiffs
(1975),
they
only required
were
to show
Ill. 2d
If that the motion to dismiss was accepted plaintiffs’ we the trial summary judgment for- reversed untimely motion position in the same court, ultimately find themselves plaintiffs would causation, prove expert testimony no they are now. With having after hospital,, verdict for the grant a directed would time, energy on an un money parties’ to waste both its and the doing of a use require law does not necessary proceeding. “[T]he Bank, Ill. less act.” Stone v. La Salle National 1060, 1065 N.E.2d here, applicable if Foster is argue next even Gill v.
Plaintiffs (absent care earlier from the standard of the nurses’ deviations Sutkus) reasonably whereby jury a case to Dr. establish notification cause of the proximate to be a found those deviations could have proximate may more than one Although there injuries sustained. 675), is not at (Merlo, at 45 N.E.2d injury cause of
21 causa- requisite proximate not the provide the case here. Plaintiffs did of care link the nurses’ deviations from the standard testimony tion to cause injury. testify regarding proximate Nurse Hall could not kill- expert. expert, a medical Plaintiffs’ medical Dr. since she was not testimony because ing, provide necessary proximate did not the cause in running he not find the nurses deficient the monitor did were deviations speed, purported at the faster did not address the nurses’ issue, the regarding the “chain of command” and did not address care and treatment of Mrs. Seef. nurses’ is that the trial court abused argument appeal
Plaintiffs’ last by allowing expert Depp testify its discretion defense Dr. to with new opinions previously pursuant Supreme disclosed Court Rules (i). (166 213, 1, 1996, 2d 213(g) January and Effective Rule 213 Ill. R. (134 213) now 177 Ill. 2d R. Court Rule 220 Ill. 2d replaced Supreme 220) setting requirements opinion R. in forth the wit disclosure 213(g) nesses. Rule provides: opinion person any opinion
“An is witness who will offer testimony. Upon interrogatory, party written must state: (i) subject opinion matter on which the witness is
expected testify; (ii) the opinions opinion conclusionsand of the witness and therefor; the bases (iii) qualifications witness; provide reports all of the opinion 213(g). witness.” 177Ill. 2d R. 213(i) Rule provides: duty
“A party seasonably any has a supplement or amend prior response answer or whenever new or additional information subsequently party. becomes to that known deposition taken,
If a an opinion of witness is the witness’ therein, at trial opinion expressed will be limited to the in opinions addition to those 213(g) identified answers to Rule interrogatories. opinions expressed
The
in deposition
specifi
need not be later
cally
but,
213(g)
upon objection
trial,
identified in Rule
answers
at
proponent
prove
opinions
burden is on the
the witness to
of
provided
deposition
were
213(g) interrogatory.”
or Rule
added.)
213(i).
(Emphasis
Ill.
177
2d R.
The
requirements
mandatory
Rule 213 disclosure
are
subject
compliance by
to strict
parties.
Department
See
of
Crull,
Transportation
531,
(1998);
v.
294 Ill.
3d
690
143
App.
N.E.2d
Belmonte,
Adami
App.
17,
(1998);
v.
302 Ill.
3d
Upon
evidence,
kus,
prove
has the burden to
proponent
opinions
provided
discovery deposition
213(g)
were
or a Rule
213(i);
Katholi,
Ill.
interrogatory.
177 Ill. 2d R.
McMath v.
disagreement
Depp’s
Any
at
We 23 pursu- disclosed testimony previously not contained deposition dence 213. ant to Rule reply their brief but objections appeal 25
Plaintiffs raised initially that We note objections. to 19 reduced that number are court and in the trial 8, 9, 14, 17 were not raised 1, objections 826, 599 Rekkas, Stennis v. therefore waived. they had argue because 1059, 1067 Plaintiffs N.E.2d deposition, the evidence objection during 213 agreed standing Rule trial them in the raising not any objections they did not waive referred stipulation That argument. a nonsensical court. This is trial court at a before the they could be raised preserving objections so the trial court’s review of review. We cannot later time. This is a court opportunity not have the if the trial court did objection on an decision objection. to hear that and 13 objections remaining objections, plaintiffs’
As to the with overruled. We note testimony properly and thus were to disclosed testimony that the nurses did not (concerning 11 regard objection a.m.) that, than al- at time earlier 3:05 need to Dr. Sutkus discovery deposition, precise he not state a time his though did physician” indication to call a testify did that “there was no Depp not Rule 213. Referring precise to a more time does violate earlier. not directed to objections 10 and 15 were Plaintiffs’ overruled. testimony factual statements and thus but testimony Depp’s and mischaracterize Dr. objections Plaintiffs’ 19 testimony elicited objection and are meritless. Plaintiffs’ 18 was during Depp. of Dr. Plaintiffs plaintiffs’ counsel cross-examination testimony they elicited. object cannot now to this 2, 3, 4, 5, 6, concern objections Plaintiffs’ and 7 jury. Depps’ improperly presented and was disclosed (macrosomia objections was not a condition testimony at issue (ultrasound 1980), equipment physicians diagnosed *14 time), (diagnosis and 4 was inaccurate as much as 18% of until disproportion and that it cannot be ascertained cephalopelvic labor) that Mrs. opinion for his disclosed explained well into bases above, for that noted the bases prenatal Seef had no risk factors. As Firstar Bank 213(g); 177 Ill. 2d R. opinion should have been disclosed. (1999). Although Peirce, ,525, 3d 714 N.E.2d App. v. 306 Ill. automatically violate Rule opinion a disclosed does not elaborating to have been testimony at here cannot be considered issue nothing “there was by original opinion encompassed risk factors” and to indicate Mrs. Seef had obstetric prenatally The cited “ultrasound, required.” stress or NST was test logical corol opinion, rather than testimony states new reasons for the laries.
Similarly, objection 7 concerns testimony (diagnosis of amnionitis would very have been difficult because Seef might Mrs. had the throat) flu, throat, strep or a sore that was more than a mere elabora- tion on Depp’s opinion that the death due to infection was unforeseeable. This Depp’s opinion basis for Dr. should have been disclosed and the testimony is therefore barred. (labor
The testimony at issue in objections 5 progressing was slowly, dilation) offered phases context of by labor as indicated cervical (Mrs. and 6 Seef merely experiencing was preparatory contractions) why concerns reasons a C-section did not need to be performed earlier. Neither of these Depp’s bases for Dr. opinion was disclosed in discovery. Notwithstanding Dr. Sutkus’ assertions to the contrary, discovery deposition, which mainly focused on interpre- tation of the fetal heart rate as shown monitoring on the strips, did (cervical dilation) not mention slow labor prepatory contractions. opinion This testimony should not have been allowed.
We find the cumulative effect of the erroneous admission of Dr. Depp’s opinions undisclosed mandates reversal and remand to the trial court for a new trial. strongly urge practitioners that, We if an important is to the theory case, of one’s it is essential that it and the bases therefor be bright disclosed. This is a line rule and must be followed. above,
For the reasons stated we affirm the Ingalls dismissal of Memorial Hospital reverse and remand for regard a new trial with to Dr. Sutkus. in part
Affirmed in part; reversed cause remanded. RAKOWSKI,J., concurs. FROSSARD,
PRESIDING JUSTICE O’MARA dissenting: agree I awith remand for new trial permit plaintiffs’ but would case Ingalls Hospital I proceed, as believe the by trial court abused barring expert its discretion nurse Hall’s testimony in its entirety dismissing Ingalls. A causal relationship between the negligence injury defendant’s and the must be shown preponderance of the evidence. Chambers v. Rush-Presbyterian-St. (1987). Center, Luke’s Medical 155 App. plaintiff Ill. 3d 458 may provide either direct or circumstantial to meet evidence this burden weight given and the to be injury evidence that the caused the defendant’s lack of skill or a matter care is left Amine, Bombagetti decide. Plaintiffs demonstrated sufficient evidence of a causal link be-
25 and the of care standard from the deviations Ingalls’ nurses’ tween jury to resolve. of fact for the a question to raise baby death (1) of care: nursing standard established Nurse Hall’s to the her admission upon risk labor status assigned high Mrs. Seef (3) minutes; (2) every be assessed Mrs. Seefs condition hospital; minute per three centimeters run at monitoring strip be the fetal (4) dur- on her side positioned Mrs. Seef be interpretation; ease additionally of care that the standard Hall testified ing labor. Nurse status of Mrs. Seefs to inform Dr. Sutkus Ingalls’ nurses required action, the appropriate not take if Dr. Sutkus did and that a.m. nursing supervisor. required nurses were nurses’ deviations Ingalls’ testimony demonstrated Nurse Hall’s Seef assign did not Mrs. Ingalls’ nurses the standard of care. her they not assess did upon admission high risk labor status fetal setting than Rather frequency required. condition with minute, Ingalls’ per of three centimeters monitoring strip speed at a minute, strip more dif- making the per one centimeter nurses set it at that, as a result of Hall testified interpret. Nurse ficult to read and their speed the correct strip the monitor at nurses’ failure to set Seef, changes strip on the were monitor Mrs. failure to nursing stan- required by manner upon acted identified and death. baby’s to the dards of care. Those failures contributed the fetal monitor a.m., 12:30 94 and 95 on panels Sometime before Hall stated that hypertonic contractions. Nurse strip signs showed contractions, Ingalls’ monitoring strip hypertonic once the revealed Sutkus, By not. a.m. they but did nurses should have notified Dr. pattern variability, a loss of consistent panel 99 indicated contractions, in which the at- another instance extremely hypertonic Sutkus, although they failed have alerted Dr. tending nurses should arrhythmia. a.m., fetal heart strip At 2:45 the monitor showed do so. Dr. Sut- have contacted Hall indicated that the nurses should Nurse Mrs. Seef satisfactory orders or see give and if he failed to either kus nursing supervisor. their himself, obligation an to alert the nurses had Again they failed to do so. Lilling provide did not incorrectly concludes that Dr. majority evidence Lilling, provided cause necessary proximate evidence. In baby’s death. his
that the nurses’ failures contributed monitoring fetal properly interpret Mrs. Seefs the nurses failed Ingalls’ neither Dr. nor nurses strip. Lilling noted that Sutkus until 3:05 of concern for Mrs. Seefs condition appropriate level He of- delivered. a.m., nearly baby hour after the should have been act and link the nurses’ failure to fered evidence of a causal between level of care proper he indicated that with the death when baby concern the would have if a.m., survived delivered 2:15 instead of at 3:45 a.m.. He “[Mrs. stated that: Seef] needed a cesarean anytime prior section l:45[a.m.] 2:45[a.mJ and the sooner it was done, the baby better off this would be.” Dr. Lilling’s testimony Dr. Sutkus should have delivered baby between 1:45 a.m. and 2:45 a.m., combined with the nurses’ failure to during act this period, time provided the necessary causal connection between the nurses’ inaction *16 baby’s and the Bombagetti, death. 254 App. Ill. 3d 817.
Nurse Hall regarding testified the nurses’ failure to position Mrs. Seef on her during side labor. She noted that Mrs. Seef was turned from right her prior side to her back to 12:45 a.m. panel at 97 of the strip. She further stated that: repositioned “Mrs. Seef was onto her *** back remained that position until 3 position a.m. This increases the compression likelihood of cord and was not a proper po- sition for this mother to labor in.” Dr. Lilling’s testimony paralleled nurse Hall’s when he stated that Mrs. Seef s fetal monitoring strip displayed a component,” “variable with a late indicating compres- cord compression sion. The cord stress, resulted in hypoxic or a lack of In oxygen. Lilling’s Dr. opinion hypoxia the progressed anoxia, or a complete deprivation oxygen, baby’s which caused the death. Dr. Lilling’s opinion as to baby’s the cause of the death coincided Dr. with opinion, Sutkus’ where he indicated “anoxia” as the cause of death. The nurses by repositioning Mrs. Seef on to her back increased the cord compression resulting in oxygen deprivation which caused the baby’s death.
A defendant is liable for negligent
regardless
conduct
of whether
that conduct
contributed whole or in part
injury. Chambers,
App.
155 Ill.
3d at
A465.
decision as to causation should be removed
from
jury
the
just
evidence,
when not
the
but also all the reasonable
therefrom,
inferences
so overwhelmingly
the
favor
defendant that no
jury
reasonable
could find for
plaintiff.
the
Bombagetti, 254 Ill. App.
3d
Although
at 820.
jury
a reasonable
could have found that
the
nurses’ deviations from the standard of care
baby’s
contributed to the
death, the trial
by
court erred
eliminating
possibility
this
when it
testimony
excluded nurse Hall’s
subsequently
Ingalls
dismissed
regarding
the case. Issues
proximate
standard of care and
cause
are
questions
properly
fact
to be decided
the jury. Aguilera v.
Center,
Mount
Hospital
App.
Sinai
Medical
3d
Dr. Sutkus testified that
if he
even
had known of Mrs. Seef s condi-
prior
a.m.,
tion
to 3:05
he
would not have taken
different action.
however,
Dr. Lilling,
discredited Dr. Sutkus’ assertion when he testi-
any reasonably
fied that
qualified obstetrician would have delivered
baby by
the
cesarean
section
2:15 a.m. at the latest to
the
save
Moreover,
duty
notify
bring
him and
had a
life.
nurses
speculated
supervisor.
their
Dr. Sutkus
his inaction to the attention of
acted
accordance
he would have done had
nurses
about what
care,
Lilling
speculation,
offered
with the standard
whereas
meeting
to how
obstetrician
but an
medical
as
expert
if
notified. The
proceeded
of care should have
standards
conflicting testimony
weight
Lilling’s
to Dr.
given
to be
Sutkus’
Hospital,
Suttle Lake Forest
was a matter for the
to determine.
v.
1999).
required
A trial
is not
(September
No.
court
1—97—3567
fact,
uncontroverted
accept
hypothetical
a defendant’s
testimony.
contradictory
offers
particularly
opposing party
when
(1996)
(finding
Kash, 278
“scant
See Wodziak v.
Ill.
malpractice
self-serving
in a
defendant’s
evidentiary value”
medical
bias).
testimony, due to
Foster,
(1993), is
upon
reliance
Ingalls’
Gill
Gill,
misplaced. In
our
court held
a nurse’s failure to
supreme
treating physician
plaintiff’s
pain
of the
chest
did not
already
injury,
physician
cause
because
knew
Gill,
plaintiff’s
Gill,
Ill. 2d
In
pain.
chest
at 310-11.
supported
doctor’s notes
the assertion
defendant
plaintiffs symptoms
yet
the doctor knew of
took no action. Our
supreme
noted that
treating physician
repeated
contacts
with
after his
his condition
plaintiff
complications
arose and
wors
*17
ened, yet
properly diagnose
the doctor still failed to
the condition.
Gill,
2d at
The
310-11.
court therefore concluded that
the
physician
nurse’s failure to
the
could not have
Gill,
in
delay
plaintiffs
caused the
treatment.
abnormal After delivering plaintiff, the obstetrician sent the placenta to the pathology lab for but testing, any did not inform other hospital personnel of his result, observations. As a when the plaintiff began experience difficulty in breathing, the pediatricians failed to diagnose her suffering from hypovolemic shock and failed to properly treat her causing permanent neurological damage.
The hospital argued defendant that the plaintiff could not estab- cause, lish proximate because the pediatrician testified that his treat- plaintiff ment would not have differed even if he had been informed plaintiffs of the placenta. abnormal agreed, trial court and after a jury verdict in plaintiff, favor of the granted the defendant’s judgment motion for a notwithstanding Suttle, the verdict. slip op. at 6-7. The trial court found plaintiff could establish negligence part obstetrician, on the but based on the pediatri- cian’s testimony that he would nothing differently have done if even the obstetrician had him informed of the abnormal placenta, the court found the plaintiff could not provide the causal link between the negligence obstetrician’s injuries. Suttle, and the slip op. at 6-7. This court judgment reversed the court, of the trial holding that “whether [the defendant’s] treatment plaintiff] [the would have remained the any same had of the hospital personnel him informed [the *** mother’s] condition was a question for the to determine.” Suttle, slip op. at 13.
Like the pediatrician Suttle, Dr. Sutkus testified his treatment would not have differed if even the nurses had informed him of Mrs. Seef worsening s condition. The Suttle addressed same is- sue and noted that evidence which negligent delay diag- shows that nosis treatment lessened the effectiveness of treatment is sufficient proximate Suttle, Here, establish slip op. cause. at 13. reason- ably qualified obstetrician would baby by have delivered the 2:15 a.m. at the latest to save life. Whether Dr. delay Sutkus’ delivering the baby treating Mrs. Seef would have occurred had the nurses informed him of worsening Mrs. Seef’s condition awas question Suttle, of fact for the jury to determine. slip op. at 13. disagree
I that the of Dr. Sutkus breaks the causal link between the nurses’ deviations baby. death of the Seefs’ There is evidence that the nurses’ deviations from the standard of care *18 proximately caused the assign high death failure to risk status, improper positioning’ fluids, provide oxygen failure to fail- ure supervisor physician, or other failure to run and the fetal interpret monitor. Proximate cause issues are fact specific and uniquely jury’s for the determination. Holton v. Memorial plaintiffs permit I would 95, 107 Ill. 2d Hospital, “To resolve these issues. jury to allow the Ingalls and proceed is lessened recovery or survival chance the extent to a evidence present should be able he or she malpractice, *** increased caused the malpractice defendant’s that the 119. Holton, Ill. 2d at recovery.” or lost chance risk of harm al., Guardian, M.R., Plaintiffs-Appellants, et A.R., Legal by Her Mother and (Laidlaw Transit, EDUCATION, Defendant-Appellee BOARD OF CHICAGO Defendant). Inc., Division) (1st No. 1 — 98—2087 First District Opinion December 1999. filed