*1 find Crestwood presented, we the evidence totality Based on uniformity between a lack of convincing evidence by clear and proved buildings. Accord- identical on the almost imposed the assessments against the in this case were findings PTAB’s say the ingly, we cannot weight of the evidence. manifest
CONCLUSION PTAB’s decision. We affirm the
Affirmed. LAVIN, J.,
TOOMIN, EJ., and concur. STAPLETON, Minor, By Through Parent and Next His KEENAN MOORE, Friend, Clark, al., Plaintiffs-Appellants, v. MONICA Felicia et Defendant-Appellee. Division) (5th No. 1 — 09—0381
First District August 13, Rehearing denied 2010. Opinion filed June *2 LAVIN,J., dissenting. Wunsch, PC., Hunsicker, John C. Karl E. both of John C. Wunsch and Ltd., Harte, Mannix, both of M. both of William J. J. Harte and Joan
William Chicago, appellants. *3 Sherwani, Lowis, of Lowis Berger, Mehreen S. all
Jennifer A. Lee A. and Chicago, appellee. for & Gellen of LLR opinion TOOMIN delivered
PRESIDING JUSTICE court: journal the use of a medical determine whether appeal,
In this we only the permissible when of an article on cross-examination reliability of and not the of the author is established reliability Plaintiff, Clark, individually, and Felicia text itself. particular article or minor, entry from the appeals Stapleton, Keenan on behalf of in her action of defendant judgment jury on a verdict favor suffered Keenan arising injury from an malpractice (1) court erred the trial following errors: delivery. Plaintiff asserts cross-examining journal article allowing defendant to use a alia, prior not disclosed because, the article was inter plaintiffs expert (2) proper instructing jury as to trial; erred in the trial court (3) defendant’s mo granting care; the trial court erred standard of “arrest of limine, barring any testimony as to whether tion (4) doc attending resident testimony of the and place; took labor” in er was record notation tor, trial that his medical Meininger, Dr. at (210 213). ror violated Supreme Court Rule Ill. 2d R. For the fol lowing reasons, we affirm.
BACKGROUND Stapleton July 17, 2003, Keenan was born on about 38 weeks of gestation. birth, During mother, Clark, plaintiff Keenan’s Felicia doctor, Moore, told her Dr. Monica baby being that the “stubborn” and that she push help delivery. should After the delivery, Dr. plaintiff Moore told that she probably get should Keenan’s arm However, checked out. Dr. Moore did explain why she said this. Plaintiff very described Keenan’s arm as limp hanging and to the side. Hospital No one at Rush explained Memorial what was wrong Keenan’s arm. Keenan was otherwise healthy and weighed pounds, ounces.
Dr. Moore’s chart note shortly indicates a made after Keenan’s birth that spontaneous there was a normal vaginal delivery with dystocia, delivery which a difficult baby’s means of a dystocia shoulders. emergency Shoulder is a medical because the baby must be in a delivered short time frame or it could die or sustain brain damage. dystocia Shoulder can in variety ways, be addressed maneuver, McRoberts repositioned where the mother is with her legs up back, through and application pressure. of suprapubic suprapubic pressure push dislodge intended the baby’s trapped case, plaintiffs anterior shoulder. In the McRoberts maneuver and application suprapubic pressure successfully were used. Dr. Moore’s passed note indicates 40 seconds from the time she recognized dystocia the shoulder to the actually time Keenan was However, cross-out, delivered. this note includes a illegible, also now notation with word “error” written next to it.
Keenan a permanent suffered left-side plexus injury brachial called palsy. Erb’s plexus group The brachial is a that extends nerves from spinal cord, vertebrae, at the cervical and thoracic down to the shoulder, arm, muscles of the forearm and hand. These nerves can permanently damaged in babies of stretching become result side, occurring between the neck shoulder on either most often dystocia. during shoulder Moore, proceedings against
Plaintiff filed the instant Dr. alleging greater-than- that in the applied course Moore had *4 head, gentle causing traction to Keenan’s him sustain the brachial to defense, plexus injury. injury Dr. maintained the Moore that was her, by applied by not caused traction but rather from the force of uterine body caught contractions Keenan’s when his left shoulder on a in ridge plaintiffs spine. the sacral area of promontory head of Keenan’s the do not indicate orientation *5 Moore, suprapubic pressure and the caused the anterior shoulder to pop out and the rest of body Keenan’s to delivered.
Dr. Moore denied applying any upward during traction Keenan’s delivery, against because this would work the application of downward suprapubic pressure. Dr. Moore also denied applying excessive traction, downward pulling and also denied or twisting Keenan’s head. After delivered, Keenan’s head plaintiff was up bed, moved far on the and Dr. Moore’s hands on portion were Keenan’s head for some plaintiff distance up that and away. moved Dr. Moore conceded that deposition she had during testified her the time was seconds, pushing, about she applied “probably medium” force on agreed Keenan’s Dr. head. Moore that the standard of care would al- for gentle low the use of lateral baby traction to a deliver when dystocia present, shoulder although Dr. Moore maintained what is “gentle” person person differs from to subjective. and is Dr. Moore agreed using greater-than-gentle lateral traction a baby dystocia shoulder a would be from the deviation standard of care absent a life-threatening scenario. further She testified that amount applied of traction she was “nowhere near excessive” and why that she does know Keenan injury. suffered his Dr. Moore delivery remembers after the thinking strange it was that Keenan’s left injured, shoulder was right because his shoulder was the one plaintiff’s pubic under bone. Dr. denied violating Moore the standard care Keenan’s had opinion, case and within a reasonable degree of medical did certainty, nothing she the injury. caused
Plaintiffs obstetric Dr. expert, Edelberg, Stuart board was certi- fied in and gynecology obstetrics been practicing had obstetrics years. Edelberg over 40 he thought Meininger’s indicated “LOA” notation was mistaken and should have indicated “ROA” anterior) (right occiput position, for Keenan’s head would which have been being consistent with Keenan’s left arm Dr. Edelberg anterior. delivery summary reviewed the labor and felt the left shoulder was anterior because dystocia anterior shoulder statisti- cally likely. event, In any injured more the left arm could been have posterior, whether the left shoulder was anterior or and the actual position impact Edelberg’s did not opinions. Edelberg’s opinion, dystocia emergency. shoulder is a medical of care a requires physician perform recognized standard to including
maneuvers for
a
dystocia,
shoulder
McRob-
pressure. Any pres-
erts
and the
application
suprapubic
maneuver
dystocia
gentle
sure on
head used
relieve
to be
shoulder
has
pressure. Edelberg opined
plexus injury
lateral
that Keenan’s brachial
by Dr.
placed
occurred because there was “excess lateral
traction”
on the
placing pressure
Traction refers
Keenan’s head.
Moore on
shoulder
plexus. If the left
head,
the brachial
baby’s
which stretches
birth,
traction
downward lateral
during
excess
Keenan’s
was anterior
inconsistency accounting for the
Even
applied.
upward
then excess
lateral
records,
posterior,
left
if the
Edelberg, the
case, according
ap-
In Keenan’s
applied.
traction was
Keenan’s
traction caused
plication
greater-than-gentle
lateral
of care. Edel-
from the standard
permanent injury and was deviation
including
injury,
mal-
berg
possible
all
causes of
eliminated
other
labor,
babies
usually
very
involves
small
positioning
which
presentation
prolapse
canal with neck
descending down the birth
plexus injuries
According
Edelberg,
can
arm.
transient brachical
womb,
any physician
pressure inside the
and without
result from
*6
injuries are different
permanent
plexus
but
brachial
negligence,
Also, any
result
lateral
uterine contractions
they
because
from
force.
tissue and
bruising
or
result in
of the skin and muscular
forces would
equally
greater
on the
on one side.
baby,
would be
exerted
cross-examination,
Edelberg
questioned
Dr.
was
about various
On
plexus
journal
expressing
articles
the view that brachial
injuries
by
endogenous
more
of the mother
likely
are
caused
the
forces
However,
delivery
baby,
rather
external
the
than
traction.
were
research
according Edelberg,
opinions
some of these
based on
and,
transient,
using
computer
part,
a
model
for the most
related to
permanent,
plexus injuries. Although
than
brachial
defendant
rather
Grimm,
sought
testimony
to introduce the
of Dr. Michele
one of these
doctors,
information,
computer
authoring
regarding the use of
model
finding
did not
testimony,
comply
the trial court barred such
that it
States,
requirement.
Frye’s general acceptance
Frye
with
See
v. United
(D.C.
1923).
Over was Salamon, a by reported Dr. Lerner and Dr. which case article written resulted in baby vaginally physician of a without traction that born injury. Edelberg later testified that permanent plexus brachial in was the defense for article related to case which Dr. Lerner objected Although Dr. basis of nondisclosure Salamon. pursuant Supreme Court Rule the court allowed Edelberg notwithstanding proscriptions. 213’s impeachment, for Rule the case at application of the article to validity discounted trial. PRECIS, a text the 2005 Edelberg questioned was about (ACOG), which Gynecology College the American of Obstetrics and past that brachial
acknowledges though textbooks in the stated traction, excessive lateral plexus application palsy caused years emerged evidence over in fact plexus most brachial palsies are not caused traction and in uncomplicated vaginal occur plexus deliveries. PRECIS text also states most injuries brachial presents occur because an infant pelvis the mother’s the left oc- ciput position, right anterior likely where infant’s arm is more get bone, caught pubic under the plexus mother’s but brachial also oc- arm presents posteriorly. curs Additionally, Dr. Edelberg questioned was concerning plexus article on brachial palsy involv- ing shoulder, posterior stating likely that it most that maternal expulsive may partly totally responsible where, forces posterior example, may shoulder become temporarily lodged behind promontory. the sacral pediatric Ater, neurology expert,
Plaintiffs Dr. Steward was board pediatrics certified in neurology special qualifications neurology. child Dr. Ater testified that Keenan had left obstetrical plexus palsy. brachial Ater concluded that plexus Keenan’s brachial injury delivery process occurred dystocia after was encountered, palsy, that he suffers from injury Erb’s and the John, permanent. Dr. pediatrician Annitta a board-certified who had treated Keenan from he up the time was two weeks old to the time of trial, stated that Keenan could not his out extend left arm further approximately 100-degree than but did angle, not note loss of strength arm, therapy in that a fact Dr. John attributed to the he had received. Neerhof, expert,
Defendant’s Dr. Mark certified in board general obstetrics/gynecology (high- and in medicine maternal-fetal obstetrics). opined risk Dr. Neerhof that Moore did not use exces- nothing sive traction because there was in the medical records indicat- *7 ing traction, the use of excessive no one in the room stated Dr. Moore traction, used excessive Dr. herself and Moore maintained that she gentle gentle used traction. Neerhof testified that downward traction gentle is within care. A the standard of downward traction should that, always delivery. be used in order to effect a Neerhof testified though exactly sustained he did know when or how Keenan his injury, nothing Dr. did or to do it. Dr. Moore failed caused Neerhof injury very likely further testified that it that Keenan’s occurred was during process, injury fact that occurred the labor because the the posterior to Keenan’s shoulder. opinion assumption
Dr. that Keenan was Neerhof based his on the posterior opined LOA and Keenan’s left arm was the arm. Neerhof that indicating that left arm was anterior Meininger’s note that Keenan’s and Meininger posterior. had anterior wrong was and confused left shoulder pediatric He also concluded that the resident’s notation of Neerhof, right shoulder According to Keenan’s dystocia wrong. was that was relieved dystocia right there was a shoulder was anterior and shoulder, but left right the the injury to in 40 without seconds right the before up promontory hung on the sacral got shoulder maintained bone. Neerhof pubic stuck behind the got shoulder anterior arm to the only injury causes traction excessive downward According to arm. Neer- injury posterior cause to the and would not injury is the force of hof, plexus possible cause of brachial another gets hung posterior the shoulder baby on after pushing labor down likely hap- most opined Neerhof up promontory, on sacral which Neerhof, is supported pened According case. this conclusion in this permanent plexus brachial indicating that medical literature dys- injuries posterior to the shoulder with or without occur literature, including tocia. maintained that the Neerhof Lerner, forces labor are a mechanism article establishes that the can injury plexus injuries occur plexus of brachial and that brachial denied that of excessive downward traction. Neerhof absence injury, op- permanent plexus literature establishes that a brachial posed applied indicates the excessive trac- injury, to a transient doctor disagreed Edelberg’s that if tion. also Keenan Neerhof LOA, upward Dr. used traction then Moore must have excessive upward because the evidence of traction after shoulder, anterior and Dr. Moore demonstrated that she was cautious in guiding by cupping posterior Keenan her hand under the shoulder. evidence,
Following jury the close of returned verdict against turn, judgment favor was entered plaintiff. of defendant the jury’s plaintiffs posttrial verdict. The trial court denied motion or, alternative, notwithstanding a judgment for new trial for filed timely appeal. verdict. Plaintiff notice
ANALYSIS allowing Plaintiff first asserts that the trial court erred Salamon, article, H. E. employ journal Lerner and defense to Following Delivery Injury Vaginal Permanent Brachial Plexus Without Physician Dystocia, Traction or American Journal Shoulder (March 2008), on cross-examination Gynecology Obstetrics and plaintiffs expert, Edelberg. Dr. Plaintiff maintains that article was fraudulent, to trial in ac misleading, probably prior and not disclosed (210 213). Supreme Ill. 2d R. Plaintiff cordance with Court Rule in limiting plaintiff’s also erred cross- asserts trial court Neerhof, concerning the Lerner expert, examination of defendant’s responds allowing such articles article. Defendant use of cross-examination did permissible article impeachment Rule pursuant need to be disclosed *8 156
An precedent unbroken line of holds that the of admission evidence scope of within cross-examination are issues the sound discre court, tion of a trial reviewing and a court will not reverse such rul ings Kamm, absent abuse 1, an of discretion. See Snelson v. 204 Ill. 2d 33, 796, (2003); Ward, 787 443, N.E.2d 814 People 455-56, v. 101 Ill. 2d 696, (1984), 463 N.E.2d 702 citing 23, Veer Hagemann, 28, v. Ill. 334 175, (1929), 165 N.E. 177 Bosel v. Corp., App. 649, Marriott 3d 654, 587, (1978), Robson, 382 N.E.2d 591 and Fullerton v. 61 App. Ill. (1978). 93, 96, 1044, 3d 377 N.E.2d 1047 See also Leonardi v. Loyola University 83, 102, 450, 2d Chicago, 168 Ill. 658 (1995), N.E.2d 459 of citing Sweeney Co., 64, v. Max 71, A.R. Matthews & 46 2d Ill. 264 (1970). 170, N.E.2d 173 party entitled to reversal un less in evidentiary rulings the error substantially prejudicial and affected the outcome trial. Garces, 541, Simmons v. 198 Ill. 2d (2002). 566-67, 720, N.E.2d 763 736 outset,
At the we address plaintiff defendant’s contention that preserve failed to argument by interposing proper objection. objected Plaintiff 213, the article on the of Rule also asserting basis foundation, a lack object of but did not expressly based on the article’s lack of party authoritativeness. A is required specific objec to make evidence, tions to based particular grounds, on failure to do so results in a of objections grounds waiver as to all specified other or relied 119, 130, on. Barreto v. Ill. City Waukegan, 133 3d 478 (1985). Thus, 581, N.E.2d 589 agree we with defendant objection has forfeited her based lack of authoritativeness. additionally We find that claim procedural defendant’s default supporting enhanced evidence defense assertion Neerhof authority considered Dr. Lerner a rehable to be the field of shoulder dystocia plexus injuries. and brachial A may medical treatise article proven be authoritative on such where cross-examination “the proves competence cross-examiner author’s a witness with expertise subject University matter.” v. Chicago Bowman 577, Hospitals, 587, 383, (2006), Ill. App. 366 3d 852 N.E.2d citing 392 326, Darling Community Hospital, v. Charleston Memorial Ill. 2d 33 (1965). 336, 253, Thus, Neerhof, 211 through N.E.2d 259 competence Dr. an authority Lerner as in the field was established.
Although plaintiff use contends that of the Lerner article 213, violated to be Rule we find that contention of dubious merit. The requirements simply Rule apply disclosure 213 do not to cross- party’s opinion of an v. opposing examination witness. Skubak Luther 32, 30, Systems, General Health Care 3d (2003), Bliss, 562, 577, citing 70 v. Ill. 771 Maffett (2002). “Supreme 213(g) require N.E.2d Court Rule does not use intends to party journal articles party that a disclose opinion witness.” cross-examining opposing party’s Maffett (2002). As N.E.2d Bliss, *9 “[ijndeed, Rule 213’s disclosure none of recognized, court Maffett party’s opinion cross-examining opposing an to requirements applies 458, citing 577, at Ill. at 771 N.E.2d Maffett, App. 329 3d witness.” 213(g). Ill. 2d R. 177 only er committed not the trial court
The dissent maintains that error, repeatedly allowed to ror, defendant was but reversible “because testimony cross-examination a sentence of without utilize the article 170. App. Ill. 3d at itself reliable.” 403 stating the article the essentially Edelberg endorsed problematic finds dissent to author, pause itself. reliability than the article We rather proper precedent requiring a long-standing the Illinois reiterate medi expert opposing party’s for an with impeachment foundation of competence It that “[t]he cal articles and texts. is well settled author’s it, of if it judge judicial if the notice or is established takes added.) (Emphasis by subject.” in the expert a witness established 336, Moreover, recently 33 2d at 211 at 259. we Darling, Ill. N.E.2d abiding principle promulgated our continued adherence to this noted by Darling: Justice Walter Schaefer in “ absorbing a expert by studying ‘An individual becomes an prevent upon relevant
body knowledge.
To
cross-examination
the
unscrupu
ignorant or
body
knowledge
protect
serves
more
expert
In
be a
opinion expert
lous
witness.
our
will
justice if
effective
cross-examination
tool
attainment
authorities,
recognized
expressed
permitted as to
views of
”
professional colleagues.’
periodicals
treatises
or
written
Ruf
(2008),
7, 25,
1174,
Boler,
Ill.
1189
App.
v.
384
3d
890 N.E.2d
fin
(2008),
denied,
695,
quoting
1126
appeal
229 Ill. 2d
900 N.E.2d
336,
Darling,
Ill. 2d at
This by changed recitation no means the rule announced our supreme Bowman, court in Darling. In we reiterated our belief that of an expert “cross-examination witness material from ‘a recognized text or treatise is proper where either the has court taken judicial notice of competence or, the author’s [citation] absent conces witness, sion proves cross-examiner the text or treatise is ” Bowman, [citations].’ authoritative Johnson, N.E.2d at quoting 3d at 564 N.E.2d at However, we original Darling, also recited the rule from “[a]n author’s competence can be established a witness with *10 expertise Bowman, in the subject 587, matter.” Ill. at App. 366 3d 852 392, 336, N.E.2d at citing Darling, Ill. 2d at 211 33 N.E.2d at 259. Thus, Darling’s, broad understanding reach confirms the that an competence may author’s be established by judicial either notice by the or by expert court an at witness trial. See 33 Ill. 2d Darling, at 336, words, 211 N.E.2d In at 259. other an at expert may witness trial the reliability establish or authoritativeness of an author in the field; relevant the rule is not only proving restricted to the authorita treatises, Here, tiveness of articles Dr. and texts. Neerhof testified that he found Dr. authority. Lerner to be reliable Accordingly, impeachment through the use of Lerner’s in views his article was proper given recognized authority Neerhof Lerner as reliable in the field. examination, expert
the published witness in direct statements contained treatises, periodicals, may pamphlets” or be as admitted substantive evidence hearsay as an if exception to such materials themselves are “established as a authority by by reliable the or admission the or of witness other 803(18). expert testimony by judicial or notice.” Fed. R Evid. such may evidence, though materials then be admitted as read substantive and into 803(18). However, jurispru not as See our submitted exhibits. Fed. R. Evid. interpreting Supreme dence Darling Court Rule 213 since allows that an may acknowledged Nonetheless, author also be as authoritative field. under our Rule 213 such materials are admitted as substantive evidence as under the federal rule. See 210 Ill. 2d R. 213.
159
be
may also
themselves
medical texts
prevailing practice,
Under
26,
N.E.2d
Ill.
3d at
Ruffin,
App.
In
as authoritative.
recognized
bar,
in the case at
those
essentially mirrored
1190,
facts
at
under
upon
injury
an
was founded
malpractice action
plaintiffs
impacted
became
the infant’s
upon
when
sustained
theory
here,
plaintiffs
as
Ruffin,
In
pelvic bone.
with the mother’s
lateral
using excessive
injury by
infant’s
caused the
was that
doctor
by
injury was caused
defense,
argued that the
In
the doctor
traction.
at
Ruffin,
Ill.
3d
of
forces”
labor.
“propulsive
the natural
doctor,
for the
returned a verdict
Although
jury
N.E.2d at 1176.
error
trial, based,
part,
finding
its
of
on
court ordered new
the trial
cross-
texts
allowing
use of certain undisclosed medical
Edelberg, apparently
plaintiffs expert,
of
Stuart
examination
judice.
appeal,
found
expert
testified in the case sub
On
we
same
who
allowing
Edelberg
cross-examination of
impeachment
error
no
acknowledged
texts
given that he
as
based on the medical texts
at
N.E.2d at 1190. We
Ruffin,
authoritative.
3d
by
journal
held that
error occasioned
the use of letters to a
likewise
proper
editor was
harmless when
cross-examination was al
rendered
using
jury
properly
lowed
the medical texts
admonished.
Ruffin,
It axiomatic treatises and textbooks themselves, very established often as reliable authorities and of compendia published these are an individual author or authors, entity. example, but rather an For the PRECIS textbook However, proceedings used in the published below is the ACOG. practice establishing right texts in their such as authoritative own procedure establishing must not be proper confused with reliability journal field expertise, author of a article in a through an expert trial. witness at find
We
Downey Dunnington,
further instructive
381-82,
(2008),
where the Fourth District
296-97
Downey,
addressed the
precise
presented
issue we are
here.
plaintiffs attorney
trial court refused to
to cross-examine an
allow
*11
prove
with an article
plaintiff
because the
failed
article,
author,
specific
opposed
Downey
as
to its
was authoritative. The
court,
refusing
trial
erred in
relying Darling,
on
held that the
court
expert.
during
allow the exhibit to be
of the
used
cross-examination
382,
However,
light
Downey, 384
App.
Ill.
3d at
The court’s continued adher recognized court also ence to Darling:
“The
District takes the same view. It holds
a
First
learned
impeachment
any
admissible
on
text is
for
cross-examination
(1)
following
judicial
three circumstances:
the trial court takes
(2)
competence,
notice of the author’s
the witness concedes the
(3)
competence,
proves
author’s
competence by
or
the cross-examiner
the author’s
expertise
subject
a witness with
matter.”
Bowman,
Downey,
App.
citing
Ill.
at
N.E.2dat
3d
587, 852
at 392.
App.
3d at
N.E.2d
Although
v. Copley
we note the dissent’s reliance on Iser
Memorial
App.
(1997),
find
Hospital, 288 Ill.
3d
lowed cross-examination, stating such broad use of treatises on “[i]t is freely unfair manifestly to allow undisclosed used articles on cross-examination, especially no properly when witness has been identified being willing many as reliability to vouch for the opinions contained within the 171. literature.” 403 Ill. However, noted, the salutary provisions of Court Rule 213 Supreme do not restrict limit opposing party’s cross-examination of an opinion witness, nor undisclosed does the rule use of prohibit treatises in the conduct of such Court Supreme examinations. Rule 213 specifically new, eliciting previously allows the of even undisclosed opinions making on cross-examination: “Without disclosure rule, under this however, cross-examining elicit party can added.) information, including opinions, (Emphasis from the witness.” 210 Ill. 2d R. 213(g).
We find puzzling the Fourth Maffett, dissent’s observation case, District 3d at binding upon this court. See abstract, Although it has may observation be accurate scant application case, Skubak, here District given that a First expressly adopted the holding rationale of Maffett:
161 supreme expressed in is also reflected position “[T]he Maffett (effective 1, 2002), July preserving court’s to Rule 213 amendments provides, rule The amended to cross-examine. the freedom *** ‘[wjithout cross-examining making under this rule disclosure information, from the witness.’ including opinions, elicit party can at Skubak, App. 213(g).” Ill. 3d at 177 Ill. 2d R. 74. the same concern
Moreover, Skubak,
and resolved
in
we addressed
following:
and
of the dissent here
stated
holding
apply to
“Dispositive is the
Rule 213 does not
opposing party’s opinion
an
witness.
testimony elicited from
Maf
al
Maffett,
properly
court
fett,
Ill.
3d at 577. In
the trial
journal
previously undisclosed
articles
lowed defendants to use
cross-examination,
require
finding ‘none of Rule 213’s disclosure
wit
cross-examining
opposing party’s opinion
applies
ments
regard,
agree
‘In
App. 3d at
we
Maffett,
ness.’
Airport Author
appellate
wrote in Southern Illinois
what the
court
(1994):
“If
Smith,
ity
N.E.2d 1240
cliché,
cross-examiner,
telegraph
punch,
must
his
cross-
to use a
***
By eliminating
would lose its effectiveness.
examination
spontaneity,
certainly
surprises.
may
we
avoid
We
also be
would
’
ability
Maffett,
Ill.
limiting the
to ascertain the truth.”
Skubak,
3d at
We further find dissent’s occurred, that, the admission of assuming any even error any plaintiff. prejudice regarding the article did result article on cross- Although dissent of the Lerner views use damaging, our review highly examination as extensive and articles but one of various that the Lerner article was record reveals Edelberg impeach plaintiffs expert. Notably, texts used to espousing other articles also extensively about various questioned also the view that plexus injuries brachial spontaneously can occur without excessive physician. traction In particular, PRECIS, the 2005 published by ACOG, specifically stated that emerged years evidence over plexus fact most brachial palsies are by physician not caused vaginal traction and occur in deliveries. prejudice we find no inured to from the trial
court’s limitation of cross-examination of regarding Neerhof *13 litigation concerning circumstances of in case examined Although Lerner article. urges defendant us to find forfeiture of this issue plaintiff because did not make proof an offer of of the evidence “ sought (Snelson, 1, to be 796), introduced 204 Ill. 2d 787 N.E.2d ‘[i]t that necessary proof question an offer of be made where the ” purpose shows the and materiality of the evidence.’ Carter v. Aza ran, 948, 956, App. 400, 332 Ill. 3d 774 (2002), N.E.2d quoting (1944). 592, 606, 825, Creighton Elgin, v. 387 Ill. 56 N.E.2d find properly We the court its in granting exercised discretion in part part and in denying prevent defendant’s motion in limine to concerning cross-examination of Dr. prevent Neerhof the article to “trial a trial.” The permitted inquiry within trial court as whether Neerhof was aware that of co-author the Lerner article was a malpractice case, defendant in a medical that Dr. Lerner was the expert case, in that and procedures regarding retained that the ethical in subject investigation. the article and its use another trial are the question, The trial court did not you allow one further “Are aware the record indications for dystocia were altered and in physician?” deleted the defendant that case. Then the court an objection questioning sustained concerning investigation of foundation, hearsay, that case based on and relevance. view,
In our
properly
find the trial court
discre
we
exercised its
tion
in
concerning
study highlighted
the alteration
records
the case
in
Lerner
“any
article. “Relevant evidence” is that which has
tendency
any
to make the existence of
fact that is of
consequence
probable
the determination
the action more or less
than it would be
964,
Wojcik City Chicago,
without the evidence.”
299 Ill.
3d
(1998).
303,
Here,
concerning
questions
702 N.E.2d
further
specific
factual details of alterations to the medical records
tendency
study
any
case
would not have had
to make the existence of
judice
of the
sub
more
consequence
fact
to the resolution
case
probable.
properly
or less
The trial court
refused to allow further
questioning concerning
alteration of
in that
case
records
other
trial
“go[ing]
because
into what the records
another
showed” was
However,
“too far.”
the court ruled
could ask whether
records
of the medical
there
an alteration
Dr. Neerhof was aware
this issue.
regarding
ample cross-examination
in that case and allowed
unlikely argues,
highly
persuasively
it
as defendant
the verdict
solely
Lerner article
its
on the
jury based
verdict
article
to use the
plaintiff been allowed
have been different had
would
Thus,
find
prejudice
we
no
expert.
defendant’s
to cross-examine
the Lerner article.
rulings regarding
resulted from the trial court’s
Valley
Prairie v. Snow
plaintiffs
find
reliance on
Additionally, we
(2001), is
Resources, Inc.,
324 Ill.
755 N.E.2d
Health
Prairie,
requiring
trial errors
one of the
readily distinguishable.
as substantive
admission of a medical
treatise
reversal
discovery deposi
experts
One
testified at his
plaintiffs
evidence.
drugs
certain
would
supported
opinion
that the
his
tion
treatise
Prairie,
patient
suffering
from
atrial fibrillation.
prevent
However,
admit
at trial the
App. 3d at
Plaintiff next maintains the trial court erred
*14
responds
jury
proper
as to the
standard of care.
that the
Defendant
jury,
court properly
trial
instructed the
consistent with the evidence
give
jury
the case.
to
a
is within the trial
deny
Whether
instruction
Authority,
App.
v.
Ill.
Bulger Chicago
court’s discretion.
Transit
345
“
(2003).
103, 121,
1127, 1142
test in determin
‘[T]he
3d
801 N.E.2d
ing
propriety
jury
of tendered instructions is whether the
to
fairly, fully,
comprehensively
informed as
the relevant
”
entirety.’ Mikus v.
considering the instructions in their
principles,
95,
Co.,
11, 25,
107
Ry.
App.
&
Ill.
726
Western
312
3d
N.E.2d
Norfolk
100,
(2000),
83,
Ill.
658
University,
v.
168
2d
quoting
Loyola
Leonardi
“
(1995).
450,
Illinois,
right
In
has the
to have
litigant
‘[a]
N.E.2d
458
sup
fairly
upon
theory
[is]
which
jury clearly
instructed
each
”
406,
380,
Co., 185
2d
by the
v. Kemlite
ported
evidence.’ LaFever
100,
(1998),
Leonardi,
362 3d 841 citing N.E.2d Linn (1999). Damilano, 600, 606-07, Ill. v. 3d A new granted trial should not improper jury because of instruc party’s tions unless to a right seriously prejudiced. fair trial has been Bulger, 345 Ill. 3d at N.E.2d Co., citation Mikolajczyk
Plaintiffs v. Ford Motor 516, 901 (2008), N.E.2d 329 for the proposition party that a is entitled have the jury instructed on his or theory puzzling, her of the case is considering jury that here plaintiff’s indeed was on instructed theory case, of the that excessive applied traction was to Keenan essentially Dr. Moore. Plaintiff takes with use issue of the word traction, opposed plaintiffs “excessive” “greater as to using preferred verbiage, gentle” Yet, than lateral traction. based on our review of record, gave we find the trial court the correct instruction based evidence, on which established the appropriate standard of prevented Edelberg care “excessive traction.” Both and Neerhof predominately Edelberg, plaintiff’s discussed “excessive” traction. expert, own testified that defendant violated the standard of care using “excessive” We find traction. no error in given the instruction trial court. claim,
We next plaintiff’s address third the trial court in granting limine, erred barring defendant’s motion in any testimony toas whether an “arrest of labor” place. took Defendant counters that trial court was within its barring discretion in such as testimony, expert testimony there was no to support theory. agree such a We judge defendant. The trial has broad grant discretion to motion part limine power her inherent admit or exclude evidence. Bowman, 530, 535, DiCosola N.E.2d (2003). labor,” theory Plaintiffs was that if there was no “arrest of plaintiffs then Keenan been promon could have stuck sacral tory. However, here expert opinion concerning there was no disclosed Indeed, testimony an “arrest of labor” and trial no as to this issue. deposition resident, such Miller, plaintiffs Trevor phrase when counsel used that and asked Dr. such, Miller whether had “arrest labor.” simply As there was insufficient evidence in this support case to the admission theory. noted, “terminology evidence as As the court it was that hasn’t heretofore been disclosed.” The trial also found court entirely problems “sound[ed] it like two different medical and issues.” *15 testimony. judge properly barring The exercised her such discretion Further, trial, specifically the revisiting court allowed for the issue at specifically and also ruled that if the came out there would be an issue However, plaintiff opportunity argu for rebuttal. failed to renew her
165 limine, therefore forfeited defendant’s motion ment opposing Bergman v. showing prejudice. See (2007). cannot sustain the issue and 486, 612, 627, N.E.2d 502 3d 873 Kelsey, Ill. 375 testimony Meininger’s trial Fourth, asserts that plaintiff Rule 213 because Supreme Court an error violated his notation was at testimony trial Meininger’s indicated defendant’s disclosures However, has plaintiff medical records. with the would be consistent at objected testimony to this never argument, plaintiff forfeited this in forfeiture of raise at trial results objection trial. to The failure 629, at 503. 3d at 873 N.E.2d Bergman, that issue. preserved issue, the the Further, had assuming plaintiff even Meininger’s notes in the medical explanation inconsistency the proper completely province the cross- records was within developed may be on cross-examination examination. Circumstances discredit, destroy the witness’s direct explain, qualify, may though material not have been raised on testimony, even Leonardi, 105-06, 2d at 461. direct at 658 N.E.2d examination. rests the sound discre scope of allowed cross-examination within appeal tion of trial court not be disturbed on absent abuse the will Leonardi, 102, Ill. 2d at of that discretion. 168 658 N.E.2d opened plaintiff testimony questioning the door for such LaGrange Hospital, on v. Memorial Bryant cross-examination. 565, 577-78, 76, (2003), Ill. App. 86-87 we held that the 803 N.E.2d testify trial properly expert court allowed the defendants’ witness disclosed, opinions where the regarding previously Here, “opened the door” to such on redirect examination. cross-examination, upon being prompted Meininger simply notes, explained offering than inconsistency in his rather new “opinion.” Meininger was not an witness in the case. in denying maintains that the trial court erred
Lastly, plaintiff or, judgment posttrial alternatively, trial for her motion a new set notwithstanding weigh the evidence and will aside verdict. We contrary if trial the verdict is verdict and order new 445, Ill. 2d weight Maple Gustafson, of the evidence. manifest (1992). province jury to resolve It is of the N.E.2d witnesses, evidence, upon credibility pass conflicts testimony. weight Maple, and to given decide the to be witnesses’ against 151 Ill. 2d at at 511-12. A verdict N.E.2d clearly result is weight opposite manifest where evidence unreasonable, arbitrary, and jury’s findings are evident or where 603 N.E.2d at Maple, on the evidence. 2d at based Center, 222 Ill. 512-13; Luke’s Medical Rush-Presbyterian-St. York v. (2006). 147, 178-79, 652-53 *16 ruling We review de novo a trial court’s on a for judgment motion notwithstanding the verdict. Corning McClure v. Owens Fiberglas (1999). 132, “[Vjerdicts Corp., 102, 188 Ill. 2d 720 N.E.2d ought judgments to be directed and entered only n.o.v. those cases evidence, which of all the when aspect viewed its most favorable opponent, the overwhelmingly so favors movant that no contrary verdict based that evidence could ever stand.” Pedrick Peoria & Co., (1967). Eastern R.R. 37 Ill. 2d 513-14 Here, jury the heard the testimony opposing experts, of two Dr. Neerhof, Edelberg weighed and and the jury their testimony and expert opinions apparently and chose to the believe Neer- nothing hof that did defendant or did do caused Keenan’s injury, but rather the injury by was caused the forces of labor he descended the birth literature, canal. ample there was including text, supporting PRECIS the assertion that plexus injuries brachial can, very do, and often physician occur without any part traction as vaginal a normal Even delivery. Edelberg, plaintiffs expert, acknowl- edged there supporting literature view natural propulsive maternal may partly totally responsible forces labor posterior injuries, arm and that brachial plexus injuries most are physician, though disagreed caused he with this view. Edel- berg acknowledged also assignment that the responsibil- automatic ity plexus for a brachial injury physician inappropriate. to the Further, Edelberg conceded that the medical records did not indicate used, excessive traction was and that none of the other residents or professionals present during testified ap- that defendant plied excessive traction.
In opposition
plaintiff’s theory,
explained
Dr. Neerhof
plexus
mechanism which a brachial
can
injury
occur without exces
physician
sive
traction in that the
baby’s
get “hung up”
can
on the
promontory.
explained
mother’s sacral
further
Neerhof
excessive downward traction could not have caused
injury,
Keenan’s
Also,
injury
posterior
because his
to his
arm.
defendant had testi
fied that
took
it
her
seconds to resolve the issue
delivery, which was
noted
medical records. We find there was no
defendant,
Edelberg’s
evidence of excessive traction
other than
unsupported opinion
Here,
must have been the
cause.
weight
supports
jury’s
manifest
of the evidence
verdict
favor of
against
University
defendant
plaintiff.
Chicago
and
See Bowman v.
(2006)
(jury
Hospitals,
App. 3d
CONCLUSION reasons, affirm. we foregoing For Affirmed. concurs.
FITZGERALD SMITH LAVIN, dissenting:
JUSTICE instructed properly that the court majority agree I While inher- not otherwise below was defense verdict that the jury evidence, respectfully I *17 weight of the manifest contrary to the ently the use of the whether issues of significant dissent on the rather expert violated plaintiffs of in the cross-examination medical article adequate laid an defendant 213 and whether Court Rule Supreme use of the article. for the foundation in and criminal commonplace civil literature is medical
The use of is chockablock with nature, literature very By courts. its tests, statistics. studies and numerous upon are opinions that based has occasion such literature properly to utilize question of how rules different maintenance of two and has led to ally vexed our courts examination, expert is not an trial. On direct regarding its use at treatises, if even any literature or findings to the permitted to refer based, literature part, on the opinions are testify he that his would (1986); v. 1, 12 Schuchman Anderson, Ill. 2d v. question. People (1990); Memo Mielke v. Condell Stackable, App. 198 Ill. 3d (1984). upon This rule based 124 Ill. Hospital, rial allow this sort be unfair to theory that it would See subject not to cross-examination. the author of the article is where our given opportunity, an Schuchman, Though 230. 198 Ill. 3d at use of medical approve the specifically to supreme court has declined Anderson, Ill. 2d at 9-10. literature on direct examination. utilizing reli an hand, cross-examination On the other Illinois, clearly been embraced has authoritative literature able and cross-examination subject to the author is still despite the fact that Hospitals, 366 Chicago University himself. Bowman (2006). practice leads to the awkward dichotomy often This his own through article reliability of an establishing the party of a expert with party’s opposing to cross-examine expert, order cannot medical literature in which up a conundrum article. It also sets direct examina- theory on support expert’s utilized to effectively be tion but can be used as a to opposing sword undermine an expert’s testimony.
In order to utilize a medical article or treatise in cross-examination any witness, a party lay must an appropriate first foundation for question. Bowman, article in 366 Ill. at App. 3d 587. Generally speaking, a knowledge testify witness sufficient must that the article is “authoritative” on an issue is relevant before the jury. Expert witnesses, however, long have been loathe to admit that an article or text is fear credibility might authoritative for that their be writing. undermined the contents Fortunately, of the this court has recognized particular that there is no magic to the term “authorita tive,” permitting a “standard,” foundation to be laid with terms like respected,” good “well “a very Bowman, source” or “a good book.” App. 3d The majority chides for a supposed failure to make a proper objection, abundantly foundation but it is from the clear record plaintiff’s counsel stated that the “foundation” was deficient, also exactingly but he delineated the reasons defendant lay would be a proper unable foundation the article because itself multiple majority argue unreliable reasons. The seems plaintiffs statement, since counsel did not utter “this article is (or authoritative),” not reliable that this issue is forfeited. As noted above, of hypertechnical jurisprudence this sort been has discredited law, say Bowman, rather limited area of the See the least. 587. If plaintiffs merely 3d at counsel had used the word explaining inadequate “foundation” without the nature of the founda tion, I might my persuaded join colleagues in their articulate and thorough analysis muddled mess that is case law on Illinois use of medical literature simply at trial. But this not the case in *18 supply the trial of matter. if counsel magic this Even failed to (“unreliable” “nonauthoritative”) word majority or that the would seemingly require, he clearly supplied ample the trial court with lay reasons that defendant would be able to foundation that never a particular this was article either reliable authoritative. counsel, in objection
Plaintiff’s his to the use of the article in of Dr. stated: Edelberg, cross-examination rejected. article, recently “[T]his was of this and article author was, did they conjunction what with a medical this malpractice expert defendant and his and when witness AGOG that, they actually investigation found about out launched an into physician doing that based on failure to He was his disclose. this investigation litigation opposed on behalf of to medi- defendant as validity cal We have issues with research. fundamental got problems with.” article on its that we’ve substantial face added.) (Emphasis objection and asked plaintiff’s Rule 213 The court then overruled repeated that there objection.” Plaintiffs counsel about the “other of the foundation, going directly to the issue problem with the unreliability of the article: publisher actually launched an
“The foundation for itself—the
underlying
investigation
itself because of the
as to
article
part
publication
that the
information. It wasn’t disclosedas
med-
study
relationship
author in their
was a
between the
—there
witness, brought
ques-
being
expert
mal defendant and him
his
into
actually
credibility writing
tion
the article and
has
his
ACOG
gone
investigation
physician’s
that
credentials
and launched an
into
added.)
actually doing
(Emphasis
this.”
argued
objection
nothing
Defense counsel then
had
to do
that this
this,”
plaintiffs
with the “foundation of the substance of
but
counsel
retorted,
everything
“It has
to do
the foundation
because ACOG
minute,
says,
way
Having
this is
out
line.
had
themselves
‘Wait
any knowledge
shenanigans
of these
we would never have even al-
In
go
going
doing
lowed this to
on.
addition to that we’re now
our
”
investigation
own
into
actually happened
what
because of this.’
Despite this rather detailed assault on the article’s lack of reli
ability
raised,
majority blithely
because of the ethical issues
states
“expressly object
failed to
based on the
lack
article’s
Nothing
authoritativeness.”
witness who would that the article authoritative. plaintiffs The method that defendant utilized was to cross-examine article, expert despite plaintiffs expert specifi- with the the fact that cally did not believe that the article was reliable because the co-authors disclose, alia, litigation failed inter that the article was based on provide other. In order to which one testified for the foundation, but necessary expert, defense counsel chose to use her witness, Neerhof, testify did that the article itself was its authors merely reliable or authoritative. He testified that one of authority might barely pass was a in the field. This foundation reliable circumstances, completely inadequate muster in here some but it is credibility reliability problems because of the article’s numerous saying that a brought were to the trial court’s attention. Just *19 everything doctor is reliable does not mean that he writes is reliable. exquisite proof This article in this case is truth of that state- ment. view,
In my ruling the trial court’s was reversible error because repeatedly defendant was allowed to utilize the article in cross- testimony stating examination without a sentence of that the article itself argument merely was reliable. The that the use of the article was impeaching opposed to substantive lacks merit when one evidence rather drilling expert potent reads the effective with the article’s important malpractice words on the most issues in this medical trial. Sanctioning practice empower party could a to marshal stacks opponent’s expert, articles for use in cross-examination of her without disclosing single reliability a for the or witness who would vouch any easily imagine authoritativeness of article. One can a scenario trial, just where numerous articles are handed over before without might actually direction as to be utilized cross- which examination, might necessary not to supply mention who founda- Forcing opponent tion for the the article. one’s authoritativeness of waiting absorb this level of technical information while to see which specific might reli- expert article is utilized and which vouch for its ability might strategy, strike some as clever but it is inconsistent with purpose discovery straightforward recipe and is a for incurable prejudice. Bliss, (2002), by upon 329 Ill. 3d 562 relied Maffett might favorably by majority,
defendant and cited seem to validate namely, requirement a methodology, some of this the lack of discrete identify might articles that be used in cross- Rule 213 to examination, proposition but it does not stand for the that there is no to establish the bona of a medi requirement identify witness fides journal A is reli cal article. statement that an article from medical all, opinion, opinions after and undisclosed quintessentially able fact. regarding medical literature should not be heard the trier of (1997). 288 Ill. 410-11 Copley Hospital, Iser v. Memorial case, binding Furthermore, is a Fourth District which is not Maffett Il Society v. Children’s Home & Aid upon this court. See O’Casek (2008). Further, linois, majority’s reliance on 229 Ill. 2d Systems, 3d 30 v. Lutheran Health Care Skubak General not, (2003), my judgment, validate Maffett, cited does which Maf holding. fett’s surprise, designed prevent 213 is Supreme Court Rule evidentiary guide to the is litigants ready with a provide but to testify. See dealt with witnesses who sues that will be (2009) Dillon, (purpose Spaetzel v. rules, discourage discovery including surprise Rule is to strategic gamesmanship). Allowing party to utilize undisclosed medi- may may cal articles that not be authenticated unidentified wit- contrary spirit nesses is to the letter and the of the rule and it should *20 It unfair manifestly condemned the court. to allow undisclosed cross-examination, freely especially articles to be used on no wit- when ness has been properly being willing identified as to vouch for the reli- ability many opinions of the contained the literature. within
Turning again to the judice, abundantly facts of the matter sub it is plaintiffs expert clear that wholly unsupportive findings the article Drs. Lerner and It Salamon. is also uncontradicted that this article specifically any pretrial was not identified in disclosure deposition. timely objection, Plaintiff made a pursuant to Rule and the conference, court considered it at During sidebar. plaintiffs counsel revealed that the article also suffered from an infirmity as a result of the fact that one of the authors had testified for the in malpractice co-author a case that served as the medical and factual foundation for the article. This fact was not mentioned when published. article was
The record is quite clear that quoted defense counsel this article frequently during sum, cross-examination. In the article stood for the proposition that palsy Erb’s in could occur the absence of noted dystocia shoulder and any This, without traction being applied. course, exactly contrary to the medical theory espoused by plaintiffs obstetrical expert. These by plaintiffs issues raised counsel directly went to the issue of reliability the article’s and should have given the pause trial court considering use, when whether to allow its especially inevitably because it would potentially create a collateral and confusing battle with none of the article’s appearing authors in court jury. before the The plaintiffs trial court did allow counsel some latitude in examining Neerhof, but that conveniently witness claimed a lack knowledge on some shortcomings of the critical article, leaving the effectiveness very of the examination much in doubt. majority suggests
The plaintiffs arguments about this article are much nothing, ado about utilized because defendants also several other articles plaintiffs expert. cross-examination of This strikes me as a cynical suggestion, rather authorizing party slip patently unreliable literature jury long before the as one softens the blow with some reliable texts and articles. It hyperbole is not suggest that the Lerner and very Salamon article went to the heart of malpractice claim of directly suggested this case. It that Erb’s palsy could occur in complete dys- absence of known shoulder
tocia, merely propulsive as a result of the normal forces of labor. It question report also merits mention that the article in case peer-reviewed A reading product article. fair of the work of this tag suggests defendant/expert penned team that the missive was more litigants professionals, to assist than to inform medical and this view was borne out in the matter More judice. sub to the point, already hand, if defendant had three other reliable sources at facially only highlights the use of the unreliable article the cumula- proof, prejudicial tive nature of the but also its inherent effect. proof prejudice The final can be found in defense counsel’s clos- ing argument findings directly which the of the article are tied proximate defendant’s sole cause defense. Lerner Salamon article is noteworthy “appears self-described as because it to be the first unambiguous report baby vaginally case of a born without the oc- dystocia, currence of in a permanent resulted brachial plexus Thus, injury.” the article was used cross-examination of plaintiffs expert support argument that the normal forces of plexus injury labor and can cause a brachial and then master- fully reemphasized closing argument in the defendant’s on sole *21 proximate cause: goes case, Bridge
“This instruction to the heart of this the heart of sole, sole, you 2. have demonstrated to that the No. We cause, only proximate injury the sole cause Keenan’s was expulsive getting on the forces labor was his shoulder stuck him promontory kept pushing sacral while the forces of labor down suggested you yesterday, the birth canal or as Dr. Neerhof mal- *** causes, positioning. you If the forces of believe that those other labor, injury, malpositioning in útero were the cause of Keenan’s your then verdict must be in favor of Dr. Moore.” establishes, argument conclusively As the cited defendant plaintiffs expert, this medical article to discredit it was used dubious provide support literature substantively also utilized proximate develop her sole cause defense. It would be hard to set of improper use of medical literature could be more ef- facts which claim. fectively very malpractice tied to the “heart” of a defense to a position in a difficult question There is no that the trial court was time, this undisclosed medical literature. dealing, when in real footing because the article surely court felt it was on solid The trial theory injury on his of how the impeach plaintiffs expert did seem to It cross-examination. “only” going and it to be used on occurred was this to be fair to both sides on is clear that the court endeavored record, trying “I am issue, stating on the particular evidentiary even I don’t want importantly, side. But most damage to limit the on either jury view, Unfortunately, my to hear a trial within a trial.” First, goals. trial court was unsuccessful in both of these laudable clearly article, second, damaged by the use of this trial, jury did hear a trial but it never heard the full within scope misleading nature of the Lerner and Salamon article.
The failure to disclose a supply necessary witness who would foundation coupled problems when with the obvious inherent itself, article type prejudice prevented plaintiff resulted getting from jury very fair trial because the to consider allowed persuasive very negligence evidence on the central issues of and sole proximate cause from an facially undisclosed source and in a unreli- Allowing plaintiff able form. highlight some of the infirmi- article’s ties did adequately cure prejudice, my I view. would reverse the judgment and remand the case for a new trial on all issues and further rule that the Lerner and Salamon article not be used at trial. BOWERS, CLARENCE Plaintiff-Appellant, v. STATE FARM MUTUAL COMPANY, AUTOMOBILE INSURANCE Defendant-Appellee. (5th Division) First District No. 1 — 09—0385 Opinion July 9, filed Dr. notes Moore’s However, dystocia. with the shoulder was involved or which shoulder student, Alex a a include note written the chart entries delivery with shoulder spontaneous Meininger, indicating a “normal and su- maneuvers reduced with McRoberts dystocia for 40 seconds also Meininger perineal laceration.” pressure secondary and prapubic meaning “LOA,” dystocia anteriorly, indicating left shoulder noted front, the under toward positioned left shoulder was that Keenan’s However, conflicted with this notation pubic symphysis. plaintiff’s “LOA.” head was also that Keenan’s Meininger’s further notation directly from he this information Meininger that obtained testified Meininger residents, Dr. Moore. the and from observing delivery, left he indicated must confused when testified that he have been chart, LOA, right anteriorly with dystocia because shoulder in only documenting patient would be anterior. He had been shoulder time, to be an days for 7 at that and this notation seemed charts to 10 records, delivery as the only was the conflict error. indicated LOA for delivery summary both note the labor position. Keenan’s had training regarding Dr. she received Moore testified while dystocia, prior Keenan’s she had treatement of shoulder case According to the doc- encountered one instance of condition. tor, get point there that she believed she needed to was no time quickly jeopardy. Keenan his life Dr. Moore delivered because Sifferman, resident, Emily Dr. explained pediatric that she called a Dr. testi- occurring pushing. because of fetal decelerations Moore she but Siffer- fied was not too concerned with decelerations called just something happened. respect Meininger’s man With case note, position Dr. Keenan’s stated because of LOA Moore head, Dr. testi- could not have been anterior. Moore left shoulder Meininger got did information fied she not know how about being left shoulder anterior. plaintiff’s Dr. labor and independently Moore recollected resident, Dr. present delivery Also at the were Keenan. resident, Dr. Smith, nurse, and Dr. Sifferman. pediatric Carrie up and plaintiffs legs had one of Moore remembered the nurse back, leg, and could not remember who but could not recall which pres- holding plaintiffs leg. applied suprapubic Dr. other Smith get the really push help sure. Dr. told she needed Moore time, guided Dr. Moore baby very period out. short After Keenan’s out, pushed down and anterior shoulder and Dr. Smith Moore, the simultaneous right According out.” to Dr. “popped plaintiff, applied traction last contraction combination of a