Foley v. Fletcher

836 N.E.2d 667, 361 Ill. App. 3d 39, 296 Ill. Dec. 916
CourtAppellate Court of Illinois
DecidedSeptember 19, 2005
Docket1-04-0506
StatusPublished
Cited by63 cases

This text of 836 N.E.2d 667 (Foley v. Fletcher) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foley v. Fletcher, 836 N.E.2d 667, 361 Ill. App. 3d 39, 296 Ill. Dec. 916 (Ill. Ct. App. 2005).

Opinion

PRESIDING JUSTICE CAHILL

delivered the opinion of the court: This is an appeal from a jury’s general verdict in a medical malpractice action in favor of plaintiffs, Daniel and Kathryn Foley (Mr. and Mrs. Foley) and their seven-year-old daughter Hannah, and against defendants, Peggy Fletcher, M.D. (Dr. Fletcher), and Primary Healthcare Associates, S.C. The jury’s verdict in favor of defendant In-galls Health Ventures is not at issue.

■ Defendants allege that the trial court erred in: (1) allowing plaintiffs to present undisclosed expert testimony in violation of Supreme Court Rule 213 (210 Ill. 2d R. 213); (2) failing to inform the jury that Dr. Fletcher had multiple sclerosis (MS) and related cognitive deficits; (3) barring a videotape from being shown during voir dire, depicting a “day-in-the-life” of Hannah, who has cerebral palsy; and (4) enabling the jury to reach a $1 million verdict for an “increased risk of future injury.” We affirm the general verdict but vacate the award of $1 million for Hannah’s increased risk of future injury.

Hannah was born on March 17, 1998. Plaintiffs filed their complaint in 1999, alleging defendants were negligent in attempting a vaginal birth after caesarian section (VBAC). Plaintiffs claimed defendants knew that Mrs. Foley had two earlier caesarian deliveries, had been advised against future VBAC attempts, and that a VBAC attempt would create substantially increased and avoidable risks to Mrs. Foley and her fetus. Plaintiffs alleged defendants were negligent in allowing induced labor to continue without significant progression despite Mrs. Foley’s medical history. Plaintiffs alleged Dr. Fletcher, who was Mrs. Foley’s physician, knew or should have known that extended labor was likely to injure Mrs. Foley or her fetus or both.

At a pretrial hearing, defense counsel asked the trial court to find Dr. Fletcher incompetent to testify due to physical and cognitive complications from MS. At an evidentiary hearing, Dr. Fletcher’s physician said Dr. Fletcher was diagnosed with a progressive form of MS in February 2001. Other physicians and Dr. Fletcher’s sister also testified to Dr. Fletcher’s condition. The trial court declined to find Dr. Fletcher incompetent to testify, citing Clark v. Otis Elevator Co., 274 Ill. App. 3d 253, 257, 653 N.E.2d 771 (1995) (a person is presumed competent to testify unless the party opposing her testimony proves her incompetent). Defense counsel objected, but the parties later agreed that Dr. Fletcher’s testimony would be read to the jury from a written evidence deposition. Defendants moved to show during voir dire a videotape of Hannah to ascertain whether prospective jurors had bias, prejudice or partiality in favor of a child with cerebral palsy. The trial court denied the motion.

Plaintiffs filed pretrial disclosures on their lay and expert witnesses in compliance with Supreme Court Rule 213 (210 Ill. 2d R. 213). Plaintiffs named Jeffrey L. Wener, M.D., as a “controlled expert witness.” See 210 Ill. 2d R. 213(f)(3) (the party presenting the controlled expert witness must identify, among other things, the conclusions and opinions to which the expert will testify). The disclosures listed nine specific opinions of Dr. Wener, the second of which was:

“2. It was a deviation from accepted standards of care for Dr. *** Fletcher to fail to document in prenatal records warnings she allegedly gave of the risk of VBAC delivery to Kathryn Foley. The absence of warnings in the prenatal office records or pre-birth hospital records require[s] the conclusion that the warnings referred to in Dr. Fletcher’s operative report, including alleged warnings regarding uterine rupture, were, in fact, not given prior to the uterine rupture experienced by Mrs. Foley, which is likewise a deviation from accepted standards of care.”

In Dr. Wener’s discovery deposition, he testified in part:

“Q. *** One of the opinions that you have offered in this case *** is that it is a deviation from accepted standards of care for Dr. Fletcher to fail to document in the prenatal record warnings that she gave Mrs. Foley about the risk of VBAC; is that correct?
A. Yes.
Q. You reviewed Dr. Fletcher’s testimony that she did in fact discuss the potential risks and complications of a VBAC with Mrs. Foley during the prenatal period, correct?
A. Yes.
Q. If she in fact did so, her action in that regard would comply with the standard of care, correct?
A. Yes.
Q. *** Did you help draft the opinions that are articulated in [the Rule 213 disclosure]?
A. I did not write them but I probably helped draft them, yes.
Q. [The second sentence of No. 2 of the disclosure] says, [t]he absence of warnings in the prenatal office records or prebirth hospital records require[s] the conclusion that the warnings referred to in Dr. Fletcher’s operative report[,] including alleged warnings regarding uterine rupture[,] were in fact not given prior to the uterine rupture experienced by Mrs. Foley which is likewise[,l you believe[,] a deviation from the standard of care.
What causes you to reach the conclusion that the lack of documentation means it didn’t happen?
A. *** [W]e are as physicians taught to document what we tell our patients and certainly in evaluating a record for quality purposes or for evaluating a record to determine a breach of the standard of care, you have to rely on what’s written in the record.
Q. Okay. Well, Dr. Fletcher does have written in her operative report that her informed consent discussion with Mrs. Foley did take place during the prenatal period, correct?
A. Right.”

At trial, plaintiffs called Dr. Wener, who testified, in relevant part:

“[MR. MOTHERWAY (Plaintiffs’ attorney)]: And would you explain to the Jury what [informed consent of the patient] means?
[DR. WENER]: Basically, it’s the obligation of the physician to sit down face-to-face with his or her patient and explain to them what the risks are in what they’re undertaking, whether it’s a vaginal delivery, whether it’s a surgical procedure. If there are risks, they need to be explained to the patient. The patient needs to know why she’s at risk, what in her history or examination puts her at risk, and if the situation changes with time, any additional risks need to be explained to the patient.
MS. CLAUSING [(Defendants’ attorney)]: Objection, your Honor. Supreme Court Rule 213. Motion to strike.
THE COURT: We’ll have a sidebar.
(Whereupon a sidebar discussion was had out of the presence and hearing of the Jury as follows:)
MS.

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Cite This Page — Counsel Stack

Bluebook (online)
836 N.E.2d 667, 361 Ill. App. 3d 39, 296 Ill. Dec. 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foley-v-fletcher-illappct-2005.