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Nelson v. Upadhyaya9/23/2005
labor with prophylactic antibiotics. The expert also testified that the 1992 Red Book made no recommendations regarding babies of mothers who had had urinary tract infections.
The trial court entered judgment on the jury's verdict in favor of both defendants. The court denied plaintiffs' posttrial motion for judgment notwithstanding the verdict or for a new trial. Plaintiffs appeal.
ANALYSIS
Sufficiency of the Evidence
On appeal plaintiffs first claim that we must reverse the verdict because it is at least contrary to the manifest weight of the evidence. See Maple v. Gustafson, 151 Ill. 2d 445, 453-54 (1992). Plaintiffs claim that the defense experts in this case, like the plaintiff's expert in Kemnitz v. Semrad, 206 Ill. App. 3d 668, 675-76 (1990), had no adequate basis for their opinions, so the jury could not base a verdict on those opinions.
In Kemnitz the plaintiff suffered a nerve injury during arm surgery. The plaintiff's expert testified that the standard of care required the defendant, the surgeon, to move the nerve without "undue force." Kemnitz, 206 Ill. App. 3d at 671. He testified that the defendant breached the standard of care by using excessive force when he moved the nerve. But he admitted that nothing in the medical records, apart from the nerve injury itself, supported his finding of excessive force. The trial court refused to instruct the jury on the theory that the defendant used excessive force in surgery.
The appellate court affirmed. Although the court found the expert's testimony sufficient to state a standard of care, the court found no evidence from which a jury could conclude that the defendant violated the standard. The court applied the general principle that a plaintiff cannot establish negligence "through the mere existence of an injury." Kemnitz, 206 Ill. App. 3d at 675.
We find that Dr. Varsha's expert, like the plaintiff's expert in Kemnitz, adequately testified to a standard of care. The expert testified from his obstetric experience about the state of knowledge and related standards of practice in 1990. But in this case, unlike Kemnitz, the expert adequately supported his opinion regarding compliance with that standard. He explained what Dr. Varsha did and how that met all relevant standards at that time. Dr. Varsha properly treated the third-trimester infection. At the time, according to her expert, many doctors did not recognize GBS infection, successfully treated, as a risk factor mandating administration of prophylactic antibiotics during labor.
Plaintiffs emphasize that nurses did not record Tammy's exact temperature during labor, Tammy's temperature rose to 102 degrees following the birth, and that temperature indicated a possible infection. But the record indicates that all of Tammy's vital signs, including her temperature, remained normal throughout labor. No one informed Dr. Varsha when Tammy's temperature spiked a few hours after the delivery. The evidence can support a finding that Dr. Varsha did not act negligently in failing to require recording of Tammy's precise temperature during labor. Dr. Varsha bore no responsibility for failure to tell pediatricians about the elevated postpartum temperature because the staff never informed her of that temperature.
Dr. Vinod's expert also provided sufficient testimony to support a finding that Dr. Vinod complied with the relevant standard of care. His expert found that the CBC was normal, and it did not require Dr. Vinod to administer antibiotics. Dr. Vinod thoroughly examined Anthony and found him in excellent health, with no sign of infection.
Plaintiffs argue that the expert opinions here, li
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